Shaking hands with a non-Mahram


Answered by Sheikh Yusuf al-Qaradhawi

Courtesy of IslamOnline.net

The Question:

Is it proven in the Glorious Qur’an or the Sunnah that shaking hands with women is totally prohibited within the social and family relations when there is trust and no fear of temptation?

The Answer:

There is no doubt that shaking hands between males and females who are not mahrams (illegal for marriage) has become an intricate issue. Reaching an Islamic verdict on this issue away from extremism and dispensation needs a psychological, intellectual, and scientific effort so that the Mufti gets rid of the pressure of all imported and inherited customs unless they are based on the textual proofs of the Qur’an or the Sunnah.

Before tackling the issue in point, I would like to exclude two points on which I know there is agreement among the Muslim jurists of the righteous predecessors.

Firstly, it is prohibited to shake hands with a woman if there is fear of provoking sexual desire or enjoyment on the part of either one of them or if there is fear of temptation. This is based on the general rule that blocking the means to evil is obligatory, especially if its signs are clear. This ruling is ascertained in the light of what has been mentioned by Muslim jurists that a man touching one of his mahrams or having khalwah (privacy) with her moves to the prohibited, although it is originally permissible, if there is fear of fitnah (temptation) or provocation of desire.

Secondly, there is a dispensation in shaking hands with old women concerning whom there is no fear of desire. The same applies to the young girl concerning whom there is no fear of desire or temptation. The same ruling applies if the person is an old man concerning whom there is no fear of desire. This is based on what has been narrated on the authority of Abu Bakr As-Siddiq (may Allah be pleased with him) that he used to shake hands with old women. Also, it is reported that `Abdullah ibn Az-Zubair hired an old woman to nurse him when he was sick, and she used to wink at him and pick lice from his head. This is also based on what has been mentioned in the Glorious Qur’an in respect of the old barren women, as they are given dispensation with regard to their outer garments. Almighty Allah says in this regard: “As for women past child bearing, who have no hope of marriage, it is no sin for them if they discard their (outer) clothing in such a way as not to show adornment. But to refrain is better for them. Allah is Hearer, Knower.” (An-Nur: 60)

Allah explains that there is no sin on the old barren women if they decide to remove their outer garments from their faces and such, so long as they do not do it in a manner in which they would be exposing their beauty wrongly.

Here the object of discussion deals with other than these two cases. There is no surprise that shaking hands with women is haram (unlawful) according to the viewpoint of those who hold that covering all of the woman’s body, including her face and the two hands, is obligatory. This is because if it becomes obligatory to cover the two hands, then it would become haram for the opposite sex to look at them. And, if looking at them is unlawful, then touching them would become haram with greater reason because touching is graver than looking, as it provokes desire more.

But it is known that the proponents of this view are the minority, while the majority of Muslim jurists, including the Companions, the Successors and those who followed them, are of the opinion that the face and the hands are excluded from the prohibition. They based their opinion on Almighty Allah’s saying, “And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent …” (An-Nur: 31) So where is the evidence on prohibiting handshaking unless there is desire?

In fact, I searched for a persuasive and textual proof supporting the prohibition but I did not find it. As a matter of fact, the most powerful evidence here is blocking the means to temptation, and this is no doubt acceptable when the desire is roused or there is fear of temptation because its signs exist. But when there is no fear of temptation or desire, what is the reason for prohibition?

Some scholars based their ruling on the action of the Prophet (peace and blessings be upon him) on the day of the Conquest of Makkah. When he wanted to take the pledge of women he said to them, “Go, for you have given your oath of allegiance.” But it is known that the Prophet’s leaving a matter does not necessarily indicate its prohibition, as he may leave it because it is haram (forbidden), makruh (reprehensible), or because it is not preferable. He may also leave it just because he is not inclined to it. An example of this last is the Prophet’s refraining from eating the meat of the lizard although it is permissible. Then, the Prophet’s refraining from shaking hands with women (other than his wives) is not evidence of the prohibition, and there should be other evidence to support the opinion of those who make shaking hands absolutely prohibited.

However, it is not agreed upon that the Prophet (peace and blessings be upon him) refrained from shaking hands with women to take their oath of allegiance. Umm `Atiyyah Al-Ansariyyah (may Allah be pleased with her) reported another narrative that indicates that the Prophet shook hands with women to take their oath of allegiance. This is unlike the narration of the Mother of the Believers `A’ishah (may Allah be pleased with her) who denied this and swore that it had not happened.

It is narrated that `A’ishah, the wife of the Prophet (peace and blessings be upon him), said, “When the believing women migrated to the Messenger of Allah (peace and blessings of Allah be upon him), they would be tested in accordance with the words of Allah, ‘O Prophet! If believing women come unto thee, taking oath of allegiance unto thee that they will ascribe nothing as partner unto Allah, and will neither steal nor commit adultery nor kill their children, nor produce any lie that they have devised between their hands and feet, nor disobey thee in what is right, then accept their allegiance and ask Allah to forgive them. Lo! Allah is Forgiving, Merciful.’ (Al-Mumtahanah: 12)” `A’ishah said, “Whoever among the believing women agreed to that passed the test, and when the women agreed to that, the Messenger of Allah (peace and blessings be upon him) said to them, ‘Go, for you have given your oath of allegiance.’ No, by Allah, the hand of the Messenger of Allah (peace and blessings be upon him) never touched the hand of any woman, rather they would give their oath of allegiance with words only.” And `A’ishah said, “By Allah, the Messenger of Allah (peace and blessings be upon him) only took the oath of allegiance from the women in the manner prescribed by Allah, and the hand of the Messenger of Allah (peace and blessings be upon him) never touched the hand of any woman. When he had taken their oath of allegiance he would say, ‘I have accepted your oath of allegiance verbally.’” (Reported by Al-Bukhari)

In his explanation of the saying of `A’ishah, “No, by Allah, the hand of the Messenger of Allah (peace and blessings be upon him) never touched the hand of any woman …” Al-Hafizh Ibn Hajar said: she swore to ascertain the news as if she (`A’ishah) wanted to refute the narration of Umm `Atiyyah. It is narrated on the authority of Ibn Hibban, Al-Bazzar, Al-Tabari, and Ibn Mardawih that Umm `Atiyyah said in respect of the story of taking the oath of allegiance of women, “The Messenger of Allah (peace and blessings be upon him) held out his hand from outside the house and we (the immigrating women) held our hands from within the house, then he said, ‘O Allah, bear witness.’” In another narration reported by Al-Bukhari, Umm `Atiyyah said, “… thereupon a lady withdrew her hand (refrained from taking the oath of allegiance)…” This narration indicates that they (the immigrating women) took their oath of allegiance by shaking hands. Al-Hafizh said: we reply to the first saying that holding out hands from behind a veil is an indication of the acceptance of the allegiance even if there was no shaking of hands. As for the second narration, withdrawing hands indicates the postponement of accepting the pledge of allegiance or that taking the pledge of allegiance happened from behind a veil. This is supported by that narration of Abu Dawud on the authority of Al-Sha`bi that when the Messenger of Allah (peace and blessings be upon him) wanted to take the pledge of allegiance of the immigrating women he brought a garment and put it over his hands saying, “I do not shake hands with women.” Furthermore, in his book Maghazi, Ibn Is-haq is reported to have said that when the Messenger of Allah (peace and blessings be upon him) wanted to take the pledge of allegiance of the immigrating women, he would dip his hands in a vessel and a woman would dip her hands with him in the same vessel.

Al-Hafizh Ibn Hajar said: it is possible that taking the pledge of allegiance happened on more than one occasion. Sometimes, it happened without touching hands by any means, as narrated by `A’ishah. Another time it happened that the women’s oath of allegiance was accepted by shaking their hands with the Prophet (peace and blessings be upon him), as narrated by Al-Sha`bi. A third time it happened that they dipped their hands in the vessel as mentioned by Ibn Is-haq.

The most correct view seems to be that it occurred on more than one occasion, if we realize that `A’ishah talked about taking the pledge of allegiance from the immigrating women after the Truce of Al-Hudaibiyah, while Umm `Atiyyah talked about what seems to be the oath of allegiance of the believing women in general.

By transmitting these narrations, I mean to clarify that the evidence of those who are of the opinion that shaking hands with women is prohibited is not agreed upon, as is thought by those who do not resort to the original sources. Rather, there is some controversy concerning this evidence.

Furthermore, some contemporary Muslim scholars have based their ruling concerning the prohibition of shaking hands with women on the Hadith narrated by Al-Tabari and Al-Baihaqi on the authority of Ma`qil ibn Yassar that the Messenger of Allah (peace and blessings be upon him) said, “It would be better for one of you to have himself stabbed on the head with an iron needle than to touch a woman that is illegal for him.”

Here, the following should be noted:

1. The scholars and Imams of Hadith have not declared the authenticity of this Hadith. Some of them say that its narrators are trustworthy, but this is not enough to prove the authenticity of the Hadith because there is a probability that there is an interruption in the chain of narrators or there was a hidden cause behind this Hadith. That is why Muslim jurists in the periods that followed the death of the Prophet (peace and blessings be upon him) have not based their ruling on the prohibition of shaking hands with women on this Hadith.

2. Some Hanafi and Maliki jurists stated that the prohibition is not proven unless there is a certain qat`i (definitive) piece of evidence such as textual proofs from the Glorious Qur’an or authentic Hadiths on which there is no suspicion regarding the chains of narrators.

3. If we suppose that the above-mentioned Hadith is authentic, it is unclear to me that the Hadith indicates that it is prohibited for males and females who are not mahrams to shake hands. That is because the phrase “touch a woman that is illegal for him” does not refer to the mere touching without desire as happens in normal handshaking. But the Arabic word “al-mass” (touching) as used in the Shar`i texts of the Qur’an and the Sunnah refers to one of two things:

1. Sexual intercourse, as reported by Ibn `Abbas in his commentary to Almighty Allah’s saying, ‘… or ye have touched women …’. He stated that “touching” in the Qur’an refers figuratively to sexual intercourse. This is clear in the following Qur’anic verses that read: “She (Mary) said: ‘My Lord! How can I have a child when no mortal hath touched me?’” (Al `Imran: 47) and “If ye divorce them before ye have touched them …” (Al-Baqarah: 237)

2. Actions that precede sexual intercourse such as foreplay, kissing, hugging, caressing, and the like. This is reported from our righteous predecessors in the interpretation of the word “mulamasah”.

Al-Hakim stated in his Al-Mustadrak `Ala as-Sahihain: Al-Bukhari and Muslim have narrated many Hadiths that show that the meaning of the word “lams” (touching) refers to actions that precede sexual intercourse. Among them are:

a) The Hadith narrated by Abu Hurairah that the Prophet (peace and blessings be upon him) said, “…The hands fornicate. Their fornication is the touch …”

b) The Hadith narrated by Ibn `Abbas that the Prophet (peace and blessings be upon him) said, “You might caress her.”

c) The Hadith narrated by Muslim that Ibn Mas`ud is reported to have said that a person came to Allah’s Messenger (peace and blessings be upon him) and told him that he had kissed a woman or touched her with his hand or did something like this. He inquired of him about its expiation. It was (on this occasion) that Allah, Glorified and Exalted be He, revealed this Qur’anic verse that reads “Establish worship at the two ends of the day and in some watches of the night. Lo! good deeds annul ill deeds …” (Hud: 114)

d) `A’ishah (may Allah be pleased with her) is reported to have said, “The Messenger of Allah (peace and blessings be upon him) used to visit us (his wives) and it was his habit to kiss and caress us and do actions other than sexual intercourse until he reached the one whose turn was due and he stayed there.”

e) `Abdullah ibn Mas`ud is reported to have said in his commentary to Almighty Allah’s saying, “… or ye have touched women, …” that it refers to actions that precede sexual intercourse for which ablution is obligatory.

f) `Umar (may Allah be pleased with him) is reported to have said, “Kissing is to be considered among the touching acts, so perform ablution if you do.” (Al-Mustadrak, vol. 1, p. 135)

Hence, the opinion of Imam Malik and the substantial meaning of the legal verdict issued by Imam Ahmad in this respect are that the touching of a woman that nullifies ablution is that which is accompanied by desire. And this is the way they interpreted Almighty Allah’s saying, “… or ye have touched women, …”

That is why Sheikh Al-Islam Ibn Taimiyah regarded as weak the opinion of those who interpreted “mulamasah” or (touching) in the Qur’anic verse to mean mere touching without desire. In this regard, he says, “As for the nullification of ablution with mere touching, it does agree with the original rulings of the Shari`ah, the unanimous agreement of the Companions and the traceable traditions reported in this respect. Moreover, those who held this opinion have not based their ruling on a textual proof or an analogical deduction.”

So, if “touching” in Almighty Allah’s saying “… or ye have touched women, …” refers to touching with hands, kissing or the like, as said by Ibn `Umar and others, then it is known that when “touching” is mentioned in the Qur’an or the Sunnah it refers to that which is accompanied by desire. We would like to cite here the following verse that reads, “… and touch them not, while ye are in retreat in the mosques …” Here, it is not prohibited for the one who retreats to the mosque for devotion and worship to touch his wife without desire, but touching that is accompanied by desire is prohibited.

Also, this includes the Qur’anic verses that read “O ye who believe! If ye wed believing women and divorce them before ye have touched them, then there is no period that ye should reckon …” (Al-Ahzab: 49) “It is no sin for you if ye divorce women while yet ye have not touched them …” (Al-Baqarah: 236) For if he (the husband) touches his wife without desire, then the waiting period is not required and he is not required to pay her the whole dowry, according to the agreement of all Muslim scholars.

So, whoever assumes that Almighty Allah’s saying, “… or ye have touched women, …” includes general touching without desire has exceeded far beyond the language of the Qur’an and that of people. For if “touching” in which a man and a woman are included is mentioned, it is known that it refers to touching with desire. Similarly, if “sexual intercourse” in which a man and a woman are included is mentioned, it is well known that it refers to actual sexual intercourse and nothing else. (See the collection of Fatawa Sheikh Al-Islam Ibn Taimiyah, vol. 21, pp. 223-224)

In another context, Ibn Taimiyah stated: The Companions had debate regarding Almighty Allah’s saying, “… or ye have touched women, …”. Ibn `Abbas, supported by a group, held the opinion that touching here refers to sexual intercourse and added: Allah is modest and generous. He euphemizes with what He wills in respect of what He wills. Ibn Taimiyah added: This opinion is believed to be the most correct.

The Arabs disagreed regarding the meaning of touching: does it refer to sexual intercourse or actions that precede it? The first group said that it refers to sexual intercourse, while the second said that it refers to actions that precede it. They sought the arbitration of Ibn `Abbas, who supported the opinion of the first group and regarded that of the second as incorrect.

By transmitting all these sayings, I mean to show that when the word “al-mass” or “al-lams” (touching) is used to mean what a man does to a woman, it does not refer to mere touching but rather refers to either sexual intercourse or actions that precede it such as kissing, hugging, and any touching of the like that is accompanied by desire and enjoyment.

However, if we investigate the sahih (sound) Hadiths that are narrated from the Messenger of Allah (peace and blessings be upon him), we will conclude that the mere touching of hands between a man and a woman without desire or fear of temptation is not prohibited. Rather, it was done by the Prophet (peace and blessings be upon him), whose actions are originally a source of legislation. Almighty Allah says: “Verily in the Messenger of Allah ye have a good example …” (Al-Ahzab: 21). It is narrated on the authority of Anas ibn Malik (may Allah be pleased with him) that he said, “Any of the female slaves of Madinah could take hold of the hand of Allah’s Messenger and take him wherever she wished.” (Reported by Al-Bukhari)

The above mentioned Hadith is a great sign of the modesty of the Prophet (peace and blessings be upon him).

Furthermore, it is reported in the two Sahihs that Anas ibn Malik (may Allah be pleased with him) said, “The Prophet (peace and blessings be upon him) used to visit Umm Hiram bint Milhan, who would offer him meals. Umm Hiram was the wife of `Ubadah ibn As-Samit. Allah’s Messenger once visited her and she provided him with food and started looking for lice in his head. Then Allah’s Messenger slept putting his head in her lap, and afterwards woke up smiling. Umm Hiram asked, ‘What causes you to smile, O Allah’s Messenger?’ He said, ‘Some of my followers who (in a dream) were presented before me as fighters in Allah’s Cause (on board a ship) amidst this sea cause me to smile; they were as kings on thrones …’”

Al-Hafizh Ibn Hajar has mentioned lessons that are deduced from this Hadith: The guest is permitted to nap in a house other than his own on condition that he is given permission and there is no fear of fitnah. According to this Hadith a woman is also permitted to serve the guest by offering him a meal, drink or the like. Furthermore, a woman is permitted to look for lice in his head, but this last was an object of controversy. Ibn `Abd Al-Barr said, “I think that Umm Hiram or her sister Umm Sulaim had breast-fed the Messenger of Allah (peace and blessings be upon him). So, each one of them had become his foster mother or his foster aunt. That was why he (the Prophet) used to sleep in her house and she used to deal with him as one of her mahrams.” Then he (Ibn `Abd Al-Barr) mentioned what indicates that Umm Hiram was one of the Prophet’s mahrams, as she was one of his relatives from his maternal aunts, since the mother of `Abd Al-Muttalib, his grandfather, was from Banu An-Najjar.

Others said that the Prophet (peace and blessings be upon him) was infallible and could control his sexual desires even from his wives, so what about other women who were illegal for him while he was granted infallibility from doing any wrong action or obscenity? This was one of his distinctive traits.

Al-Qadi `Iyad replied that the distinctive traits of the Prophet are not proven by personal interpretations of Hadiths. As for his infallibility, it is indisputable, but the original ruling is that it is permissible to take the Prophet’s actions as a model unless there is evidence that this action is one his distinctive traits.

Furthermore, Al-Hafizh Al-Dumyati said: It is wrong to claim that Umm Hiram was one of the maternal aunts of the Prophet (peace and blessings be upon him) either by reason of marriage or fosterage. Those who breast-fed the Prophet (peace and blessings be upon him) are well known. None of them was from the Ansar except the mother of `Abd Al-Muttalib. She was Salma bint `Amr ibn Zaid ibn Lubaid ibn Khirash ibn `Amir ibn Ghunm ibn `Adyy ibn An-Najjar. While Umm Hiram is the daughter of Milhan ibn Khalid ibn Zaid ibn Judub ibn `Amir ibn Ghunm ibn `Adyy ibn An-Najjar. Umm Hiram has a common ancestor with Salma only in their grandfather `Amir ibn Ghunm. So, they are not among his mahrams because it is a metaphorical relationship. Al-Hafizh Al-Dumyati added: If this is proven, it is reported in the Sahih books of Hadith that the Prophet (peace and blessings be upon him) used not to enter any house in Madinah except the house of Umm Sulaim besides those of his wives. When he was asked why, he said, “I take pity on her, as her brother (Hiram ibn Milhan) was killed in my company.”

If this Hadith has excluded Umm Sulaim, then Umm Hiram is granted the same exclusion as her because they are sisters and resided in the same house; each one of them had her own apartment beside their brother Hiram ibn Milhan. So, the case is mutual between them, as reported by Al-Hafizh ibn Hajar.

Moreover, Umm Sulaim is the mother of Anas ibn Malik, the servant of the Prophet (peace and blessings be upon him), and it was the habit of people that the master mixed with his servant and his family and did not deal with them as outsiders.

Then, Al-Dumyati said: There is no indication in the Hadith showing that the Prophet (peace and blessings be upon him) had khulwa (privacy) with Umm Hiram, as this might have happened in the presence of a son, a servant, or a husband.

Ibn Hajar replied: This is a strong likelihood, but it does not refute the original argument represented in looking for lice in the head and sleeping in her lap.

Ibn Hajar added: The best reply is that it is one of the distinctive traits of the Prophet (peace and blessings be upon him) (See Fath Al-Bari, vol. 13, pp. 230-231).

What I conclude from the aforementioned narrations is that the mere touching is not haram. So, if there exists reasons for mixing as that between the Prophet (peace and blessings be upon him) and Umm Hiram and Umm Sulaim and there is no fear of fitnah, then there is nothing wrong with shaking hands when there is a need for it, such as when returning from travel, the non-mahram male relative visiting his female relative, and vice versa, especially if this meeting happens after a long period.

Finally, I would like to ascertain two points:

Firstly, shaking hands between males and females who are not mahrams is only permissible when there is no desire or fear of fitnah. But if there is fear of fitnah, desire, or enjoyment, then handshaking is no doubt haram (unlawful). In contrast, if either of these two conditions (that there is no desire or fear of fitnah) is lacking between a male and any of his female mahrams, such as his aunt or foster sister or the like, then handshaking will be haram (although it is originally permissible).

Secondly, handshaking between males and females who are not mahrams should be restricted to necessary situations such as between relatives or those whose relationships are established by marriage. It is preferable not to expand the field of permissibility in order to block the means to evil and to be far away from doubt and to take the Prophet (peace and blessings be upon him) as a model when there is no proof that he shook hands with a non-mahram woman. Also, it is preferable for the pious Muslim, male or female, not to stretch out his/her hand to shake the hand of anyone of the opposite sex who is not mahram. But if he/she is put in a situation that someone stretches out his/her hand to shake hands with him/her, then he/she can do that.

I have tried to clarify the detailed ruling of the issue here in order to inform those who are in the dark about it how to behave while sticking to the tenets of their religion. Also, when the detailed Islamic ruling is explained and people are fully aware of it, there will be no room for personal justifications that are not supported by legal backing.

 

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176 Comments

  1. Zubair Khan says:

    I was just looking for this the other day! Jazakallahu khair, this is the most comprehensive answer I’ve found on the subject…

  2. Abdul Sattar says:

    “is only permissible when there is no desire or fear of fitnah. But if there is fear of fitnah, desire, or enjoyment, then handshaking is no doubt haram (unlawful). ”

    If a person feels confident that there is no fear of fitnah – is it not possible for this to be a false over-confidence due to the arrogance of his own nafs?

    How do we address this?

    ws
    AS

  3. Abul-Hussein says:

    AS

    Now that is fiqh! May Allah Ta’ Al’aa extend the life of the Shaikh.

    Unfortunately, people abuse Shaikh Qaradawi’s (h) research to justify bad custom or to engage practices which ought to be temporary solutions rather than established practice. We see that others misunderstand Shaikh Qaradawi (h) never read his stuff despite that he is invoked to justify an act or they bypass the fine print and cut and paste what he has researched. Also, what we see is the tendency to misread the fataawa of the Shaikh so as to set aside his scholarship. In fact, this happens with many scholars in this day.

    In this scenario I can see how this fatwa will be invoked to justify a man shaking of a woman who he is not related to as we see the established custom of the Egyptians and many others and which many Muslim Americans find a violation of Islamic Law.

    At this point we can take a cue from Shaikh Taha Jabir (h) regarding “fatwa and custom.” He makes the claim that fatwa once issued has the potential to become custom. So with time a fatwa changes from dispensation to common practice. As a result we have to be careful of the types of fatwa we give.

    In any case, I hope that the fatwa is read and we keep also in mind that the Shaikh said:

    “It is PREFERABLE not to expand the field of permissibility in order to block the means to evil and to be far away from doubt and to take the Prophet (peace and blessings be upon him) as a model when there is no proof that he shook hands with a non-mahram woman.

    Also, it is PREFERABLE for the pious Muslim, male or female, not to stretch out his/her hand to shake the hand of anyone of the opposite sex who is not mahram. BUT IF he/she IS PUT in a situation that someone stretches out his/her hand to shake hands with him/her, then he/she can do that”

    As a side point I know a brother who lost a teaching opportunity with great career potential because he refused to shake the interviewers hand (who was a woman). The brother’s father had a high ranks position in the Educational system so he investigated why his son lost the opportunity. The interviewer said we saw him as a liability because he refused to shake a woman’s hand.

    Although I don’t follow the opinion on permissibility of shaking hands there are many situations that are predicaments which may demand breaking with this opinion that I follow. This is what I wish we would understand about fiqh that necessity may justify a contrary practice and also that a fatawa that is strict does not necessarily consider varying factors nor may it be concerned with anamolies nor the weak.

    One thing that I hope we come to acknowledge even if we disagree with Shaikh Qaradawi given that we follow other scholars (not that we disagree predicated upon fancy and taste) is that Shaikh Qaradawi and others do not give fatwa for the strong they give fatwa for the Ummah. As a result these fatwa have to consider various factors particularly those who are hard pressed and weak. As for those who are not hard pressed and weak they can take stronger opinions. All must be considered alike. It is not always the case that taking constantly the strong opinion is the right path nor taking the dispensations constantly is the right path. Just as life itself varies fiqh varies but what ought not vary is our respect for the scholars of this Ummah.

    Allahu Al’am

  4. Zubair Khan says:

    Assalamu Alaikum,

    Jazakallahu khair Sh. Yusuf (Abul-Hussein) for that explanation. I had a question though: when giving dawah to the masses, or those people who are struggling to get back to Allah (swt), should we give them the easier opinions (even if we ourselves follow the tougher/harder opinion), as long as it is backed up by sound scholarship, like this issue for example? Or should we give them the opinion that we follow?

  5. bangku says:

    well said, ustaz Abul Hussein. btw, why did you delete your blog? there’s soo much excellent materials in there, don’t tell me you simply threw it away?

  6. Abul-Hussein says:

    AS

    Bangku, I hope you are well and that you make du’aa for me. The main reason for deleting the blog is to gain perspective, orientation. I ask Allah to forgive me for my mistakes and brothers to excuse me for my imperfections. As far as the blog materials some things are archived and much has been deleted “completely” -alhamdullilah. The focus now will be to resurrect thetranslators.

    Ustadh Zubair,

    Ideally, communities ought to be strategically organized to serve da’wah. Herein, we learn a lesson from the elders of the Ulema of Deoband (h) who engage da’wah via Tablighi Jamaat. One thing that they teach the Ummah is that da’wah demands that we know the community well. Through this knowledge we can understand the condition of our brothers and from understanding be wise in outreach. So, the scholars they teach that a major aspect of good fatwa is to identify the condition of the person asking for fatwa. This is why internet fatwas have to be general and broad to include the situations of as many as possible.

    When we are doing outreach and working in education with at risk Muslims (new and old) we need to be in a position to study each situation case by case and also understand the culture of these at risk Muslims, meaning their habits and like and strengths and weaknesses. The masjid should be the center of outreach from which this type of analysis takes place since it is the place of gathering.

    When we look at the situation of the masses and at risk Muslims, in particular, we ought to be careful that we deal with this group of people intimately and one on one. The age of media and communication has muffled communication to some degree and equalized voices. People need spiritual training, or better put posturing in an overall comprehensive Islamic education. This demands that we have priorities in da’wah outreach work. As a result, we need to create a culture of literacy so people are cultured Islamically, but not necessarily scholarly, this background will allow them to communicate easier with knowledge and the scholars.

    The Islamic Movement has priorities and fiqh should never be a point of fitna wherein differences are plausible, sustainable, justifiable. This is what we have to get out there as a message. We need to educate people that fiqh is for living, not for debate. We need to have guides in place dealing with the people directly, this is 75% of the battle. And those guides need to facilitate the path for lower level and senior scholars, and the priority in the hierarchy of knowledge is given to senior scholars as they are a reference.
    We do not have a priesthood in Islam but we have a hierarchy of authority in knowledge which can be joined upon merit rather than initiation.

    Now the Ulema of Azhar in practice give fatwa to the masses that facilitates things for people. Meaning people can choose to follow the opinion of any qualified scholar and they are not obliged to follow a madhab, but they are recommended to follow a madhab and they are obliged to follow the Ulema. Following dalil is optimal, taqleed of an opinion with no dalil may be a necessity and is a trust relationship but widespread literacy is the goal. These are means to understand and we ought not fight over these opinion of following dalil or not. First follow a scholar get a basis then move up in understanding it would be nice for dalil to be understood by the vast majority this would indicate a high degree of literacy if there is proficiency in understanding.

    The Ulema have a tendency not give strict opinions unless the situation calls for that. In the case there are two opinions, one facilitating and the other disciplining, the person is free to practice one opinion to the exclusion of the other but should be forthright with his or her self and Allah (swt) and hold the correct intention and that is to please Allah (swt).

    In fiqh we have the example of “fasting Ramadan while traveling.” Some scholars say that the sound opinion herein is to break one’s fast while traveling. Some scholars say fasting is better and that breaking the fast is a dispensation. The Sahaba (r) practiced both opinions and did not castigate each other. Fiqh has breadth so we need to ease up a bit and give each other room, learn first continue learning and be slow to rebuke unless it is a great evil that we see before us (in the area of fiqh).

    Zubair, the issue here is that people are being Muslims in solitude, divorced from community and scholarship, sometimes trapped in their minds and thought and feeling. This makes it hard to communicate and reach people as we are to some degree self centered, this has exceptions of course. We need a long term solution to our reality and this is why we have to be there for people in the flesh, bring a human touch to life and the lives of others.

    People are lonely, immersed in problems which weigh on the psyche, some are on the point of emotional breakdown. The way of the people of knowledge is to make things easy for people, give them the right to be more strict at will. So we consider the weak first in da’wah not those who are strong but we have to educate that this is our approach in da’wah.

    The Ulema of Azhar say: “Do not create hardship for the people”

    You know Imam Ahmad’s (r) fiqh is so facilitating but his students imitated his Zuhd (strict life style) and obliged the people to that. So people began to think Imam Ahmad’s (r) fiqh is strict confusing his personal spiritual practice for his fiqh.

    As Shaikh Suhaib was relating an opinion of the Ulema a week ago or so: he said (to the effect) our brothers need to understand that anyone can give out strict opinion but it the scholar (faqih) who knows how to deal with the rukhsa (dispensations).

    Imam Ahmad Zarruq (r) reported that there was a Shaikh who was a Zahid and a scholar in fiqh but he would send his students to the fuqaha (scholars of fiqh) to get their fiqh.

    We ought ponder this: sometimes the scholar who is a Zahid (does without in the world) takes a course approach with his nafs but in this he may not oblige anyone. So he may give fiqh according to his inclination in Zuhd and oppress a person in doing so that is make undue hardship for a person. Not all levels of zuhd are obligatory and there is wisdom in that people differ in strength and temperament so zuhd means many things so that it is relevant to all circumstances and all are treated justly.

    So in closing, we need to be there for people intimately and be easy on the people but encourage them to growth. We are not all at the same station and will not be and so we should not demand people to be but rather tend to their needs and assist them.

    Da’wah must consider the weak first so we have priorities to not make things difficult for people who have no ability. Facilitate for the weak and the ignorant for the at risk Muslim. Deen is ease and taking on hardship should be done with purpose and that means realizing where is the pleasure of Allah (swt) sometime this is in the easy opinion sometime in the hard Allah (swt) put hardship and ease in the world but enjoined patience and praise of Him (swt) in all situations.

    The end, aim of Deen is not juridical mechanics but rather Uboodiyah the mechanics are a means only let us remember that.

    A Bedouin inquired of the Prophet (saw) what he needed to get into and the Prophet (saw) explained to him the basics.

    Many people came to the Prophet (saw) and asked advice and we see it varied but overall his guidance accommodated all personality types and situations guiding all people to the same end that is practice and worship.

    The reason we are splitting ends over things is because we do not understand and we are refusing to listen to the Ulema. Let us educate ourselves to learn, not to justify what we believe or how we feel.

    Astagfirullah
    Wa Bi Lahi at Taufeeq

  7. Miriam says:

    Assalamo’alaikom wa rahmato’ALLAHi taala wa barakatoh.

    MashaALLAH what a powerful fatwa, may ALLAH reward the Sheikh in this life, but most importantly in the next.

    W’ALLAHu lmosta’an.

    Wassalamo’alaikom wa rahmatoALLAHi taala wa barakatoh.

  8. Abu Majeed says:

    ASAK
    I agree with Abul-Hasan. The problem is the way our Shaikh is USED by his enemies and the commoners who seek fatawa that agree witht heir desires. It is well known that indeed the shaikh is trying -through the texts and previous opinions- to find a way to make things easier for the masses especially considering the fast paced changes the world is going through.

    Although the Shaikh is one of the elite of this Ummah he is not above mistake or correction. On this subject, after reviewing the refutations of many of the points in this fatwa, I am convinced that there is nothing wrong with shaking hands with a non-Mahram under 7 (tamyeez) or over an age which there is clearly no desire around 60. Other than that necessity (like a female nurse or doctor) allows forbidden things. The issue mentioned by Abul-Hussein should also be kept in mind that if the issue is about getting a job and this is to suppport your family then, an individual will just have to choose between fearing Allah with a ruling which is held by the vast majority of scholars throughout history with strong evidence while explaining oneself in a wise kind manner or to take with this fatwa and then after getting the job refrain from it while explaining that you shouldn’t have done it but you didn’t want to disrespect your employer as a first impression. Whoever wants to follow this fatwa can do so as the Sh. is a mujtahid, but personally I feel that the issue of touching a woman is something that doesn’t change with time and place. I feel that it always opens a door of intimacy which can be used by shaytan in his khutuwaat. In addition to that I have not heard of any scholar in from our predecessors which sees the issue of shaking hands with a desirable woman between puberty and old age is open to ijtihad regardless if the person thinks they are safe from fitnah as many think they are in Khalwa as well. For these reasons I choose not to follow this fatwa and advise others not to as well hoping to preserve a part of our Islamic identity based on the two noble characteistics in modesty (Haya’) and chastity (‘iffah) which has been there for centuries.
    Wallah a’alam

  9. Daroon says:

    Salam Br Abul Hussein,

    I must say the second post is truly inspiring – may Allah protect you and give you insight to help those that you encounter.

    Alhamdulillah.

  10. This is my own personal opinion and experience – what many people term as “hardships” these days are not hardships – they are feelings of embarassment and shame at the difference between what is taught in Islam vs what is commonplace in Western society.

    These hardships, in my experience, are indicative of #1, weak tawakkul, and #2, poor prioritization. Let me give an example from my own practice.

    I take the opinion that the beard is not only waajib, it’s not to be touched. I do respect other opinions (some more than others), but I chose this opinion because I believed it and continue to believe it to be the strongest.

    When I started looking for job interviews, everyone said, “You must trim or shave your beard, you can’t get a job in corporate America – can’t you at least choose an easier opinion?” I said, no way, this is what I believe, if Allah subhaana wa ta’aala wants me to have a job, I’ll have it, and if not, I won’t.

    I had two interviews – the first with Microsoft, the second with Motorola. I didn’t prepare very well for the Microsoft interview, but I did prepare very thoroughly for both the technical and HR part of the interview with Motorola, and alhamdulillaah, I got that job, and four years later, I’m still here, being promoted, getting raises, and alhamdulillaah, doing well.

    I don’t say this to toot my own horn. I say this to let you know that even if there are places that won’t take you because of your beard, there are places that will – you need to do your due diligence in the things that matter the most, work hard, and leave the rest to Allah subhaana wa ta’aala.

    Another story – a brother I know (and whom Imam Suhaib knows) began training in a particular technology and was in the course with other Muslims (another Muslim was teaching it for free to these Muslims to benefit them). As part of the trend with getting a job with this technology, many people tremendously fudge their work experience to pick up a job. One Muslim brother, a practicing brother, asks my friend how he’s going to get a job, what his strategy is, what’s he going to fudge, basically. My friend points up, indicating, I’m relying on Allah subhaana wa ta’aala. How does that brother respond? “No really, what are you going to do?” Tawakkul = ? Preparation = fudge resume and lie, and more than likely if he looks hard and far enough, he’ll find an opinion that calls this a daroorah.

    Many times, I read, “But brother, these fiqh details can compromise the daw’ah, it can hurt us, we can’t spread Islam, and so forth.” So don’t wear niqaab, it’s bad for daw’ah. Don’t not shake hands, it’s bad for daw’ah. Don’t grow a beard, it’s bad for daw’ah. When the going gets tough, the tough…assimilate.

    I say, you simply need better preparation. Take the handshaking issue – if a nonmahram tries to shake my hand, I simply put my right hand to my heart (as I’ve seen my malaysian brothers do after shaking hands and giving salaam) and say, “I’m sorry, I can’t shake hands for religious reasons.” I say it in this kindest, most friendly voice. I’ve run the scenario in my head, and I’ve practiced it, so it’s natural, and I’ve yet to meet someone who was offended or put off.

    I recall one time, I went to get my hands fingerprinted at the INS, and I was in this ghetto area of Chicago, and only women were at the finger printing stations, and they would hold your hand and do the fingerprinting. I went straight up to the woman before my ticket was called and said, “Hi, I’m Muslim, and for religious reasons, I actually need a guy hold my hand and so forth, do you think that could be arranged?” Again, very kind. The woman says, sure, no problem, then yells out, “Hey, we need a dude to finger print this guy, he can’t have no girl touching his hand!” and everyone heard it. Someone approached her and asked what did he say, was he rude, and again, pretty loud, she says, “Naw, he wasn’t rude at all, he was very nice.” The guy who then fingerprints me asks me, “What religion are you, by the way,” and I tell him I’m a Muslim, and he’s like, yeah, I have this Buddhist friend and they don’t shake hands with women either.” A buddhist!

    Another incident – at one of our almaghrib classes, the female security guard at the desk whom I was dealing with at the end, wanted to shake my hand, and I said what I normally say (see above) and you know what her response was? “I apologize, I knew you guys didn’t shake hands, but I wanted to TEST you to see if you’d really do it or not.”

    These “daw’ah difficulties” are not difficulties – they are opportunities – they’re practical daw’ah (read: practicing rather than just preaching) opportunities to teach Islam to others.

    I find sometimes that our priority on making daw’ah palatable is so extreme at times, that it leads to circumventing any form of discomfort to convey Islam. It is possible to practice Islam without resorting juridical backflips (ie what is the easiest opinion on everything?) and at the same time prioritizing daw’ah.

    If you want to solve this apparent identity crisis in America, then start teaching and inculcating personal security, dignity, and yes, pride in la illaaha illallaah and what comes with it. Teach people that Allah subhaana wa ta’aala comes first, that regardless of one’s situation, He can give us what we need, if we work hard, with consistently, and relentlessly prepare.

    This is my humble rant 12 years being involved in various daw’ah organizations and continuing to do so, both with the youth and with “the uncles”, both in college and in corporate america. Islamic practice need not be as hard as it is imagined to be if we stop imagining it to be so.

    Siraaj

  11. Anon. says:

    Siraaj, bro, you’re an inspiration.

  12. Abu Abdullah says:

    Salam alaikum Abul-Hussein

    You wrote above
    “It is not always the case that taking constantly the strong opinion is the right path”

    Could you please expand upon this part of your statement?
    This is something that obviously links to the issues of tarjeeh, I received some references regarding this on another thread, but I wonder if you have any additional references, preferably with reference back to books of usool rather than fiqh if possible.

    Wasalaam

    Abu Abdullah

  13. Mohammad says:

    Assalamua’alaykum
    Let’s say a person does practice this opinion and his non-muslim co-workers expect this from him. Let’s say an attractive lady starts working at the company and now there IS a real fear of fitna/desire when she extends her hand. How should the muslim explain his situation then, when he is known to shake hands with everyone?

  14. admin says:

    Asalamu alaykum,

    Many thanks to all for engaging in this most excellent discussion. It brings a warmth to my heart to see us not turning this into a steel cage match.

    SDW

  15. andalus says:

    “I know a brother who lost a teaching opportunity with great career potential because he refused to shake the interviewers hand (who was a woman)…”

    Salaam ‘alaikum ustadh,

    Not to nitpick, but he lost the job because Allah has written something else for him. Doing something that he considers sinful (as do most scholars) would not have changed his Qadr in any way.

    I mention this because in my experience, it is this fear (loss of rizq) that motivates many Muslims to seek and apply dispensations- sometimes even completely illegitimate ones

  16. aarij says:

    Jazak Allaho khairan for this beneficial piece. After reading Imam Suhaib’s blog I have gained a lot more respect for Dr Qardawi. May Allah forgive me for anything that I may have said about him in the past, ameen.

    Sh. Abul Hussein, your writings are always a pleasure. Please keep writing.

  17. Abul-Hussein says:

    AS

    Hope all are well.

    Ustadh Andalus, we are Muslims akhi it is assumed it is hoped that the concept of tawakkul is clear to us. Despite that we have fiqh and in fact a fiqh tradition akhi. Herein to be honest your experience and your perspective have to come under a frame. Do not take the fatwa no problem but let others breath. To dig into the intentions of others is a matter of the unseen. In this arena under the topic of this fatwa the point is not a polarized fiqhi model. In this fatwa there is room for functioning and dealing with a predicament. I remind you that this is not Shaikh Qaradawi’s (h) fatwa alone but also Shaikh Ibn Bayyah (h). When to and when not to apply dispensations is the realm of scholars hence we have a fiqhi genre of fiqh at tayseer. Let people be Andalus (Alex) consider the new Muslim or the immigrant both are new to practicing Islam in America for instance but both will face the same challenges how to apply Islam in a context that does not always facilitate practice. Dispensations have four categories in Usul al Fiqh when we learn what they are and have a good grasp then maybe we can take the conversation to another level.

    Muhammad,

    When people gain familiarity with you via interaction then they give you room, flexibility predicated upon association. In any case, let us deal with reality at hand rather than possibilities. Another issue that comes up is that this fatwa is for the Ummah as was mentioned. Let us look at the issue of the beard well people in Tunis and Turkey and even in Egypt run into major problems with the law over the beard. So we need to be careful not to be so focused on personal experience. Shaikh Qaradawi and Bin Bayyah and many other senior scholars study situations from more than one life context. The need for flexibility comes from living in a globalized world and given that senior scholars have to consider rulings in that light. This is why a group of senior scholars deal with fiqh based on the divisions of majority minority in light of the New Nation State and the fact that Muslims now live in large numbers in what would traditionally have been termed “Dar al Kufr” in the time of the Khilafa. The scholars say this distinction of the world into dar al kufr and dar al islam is a political observation not set in Islamic law. So we see many scholars use a division of the world borrowed from ilm al Kalaam and which can be found in the Gloss of Shaikh al Ameer al Azhari on Jawharatu Tawheed and what he mentions is that the world is divided into peoples those who have accepted the dawah to Islam and those who are targets for da’wah. Many scholars of Usul and Fiqh have moved to this category system and in fact it is more productive in terms of dawah, interpersonal relations and so on.

    Abu Abdullah,

    In “Usul al Fiqh” we have two overarching categories which govern action in the “Fiqh tradition” that is the category of obligation (Azeema) and dispensation (Rukhsa).

    Now “fiqh” broadly is governed by these two categories in principle they are overarching categories. When fiqh is applied to life situations it usually rotates between these two categories in a static way. Meaning life situations were static not prone to change. In fact, anthropologists developed a discipline entitled social change to account for the dynamics of change that govern societies today. Change occurs by way of a number of institutions, policy, trade, climate etc. In the US change is inherent in the system because the market place demands a cultivation of consumerism and style etc. so we jump from fad to fad in the tech and fashion world etc. and this fuels the economy and creates jobs and and. (this is a topic in itself)

    Prior to 1924 when the Khilafa was still established the change dynamic manifested in the Muslim world and after colonization of the Muslim world things began to radically change and now the Muslim world is between past and present stuck in the effort of emerging from the struggle with modernity and its challenges. When the case was that Muslims had a State and lived in a mass and technology effected less change life situations did not involve the same change dynamic that we see and live today.

    There was less diversity and complexity was restricted to things intellectual and not life situations. Today it is much different we are in a different social reality particularly Muslims in the West and even Muslims in the East given globalization.

    So the Ulema have exposed the masses to the richness of the fiqh tradition and its breadth. The Masses now about ruhsa and azeema (dispensation and obligation) but they do not know how these two principles play out in light of Shariah. They hear terms like bi’dah and Maqasid ash Shar’iah etc. but they do not understand them well because they are not reading in the fiqh tradition and in usul al fiqh etc. or they are not properly trained or have a very restricted view because the level of knowledge they have attained is not too profound.

    So when it is said look fiqh is not all ease and not all hardship but shariah is ease there is misunderstanding. So herein the first thing you can do is read Dr. Taha Jabir’s book in Usul al Fiqh it is online, then read Evolution of Fiqh (and dismiss the anti madhab bias) then read the section of Dr. Hashim Kamali’s work Principles of Islamic Jurisprudence entitled rukhsa and azeema and then get back to me. Send me your email and if you want and show seriousness we can talk privately.

    Remember tarjeeh according to the school of thought of Shaikhs Ibn Bayyah and Qaradawi and Raysouni and others is rooted in Maqasid ash Shar’iah so sometimes the rukhsa realizes the aim of the shariah better than the azeema particularly in a world subject to rapid change. Look things are changing so fast that the fiqh follows so we are forced into dealing with a fiqh of possibilities. The way the scholars handle this is in many ways some retreat into staunch taqleed and reiterate what has been said in the past without really looking into the reality they are giving fatwa for. Others go to the Qur’an and Sunnah and make new ijtihad without much regard for the fiqh tradition (experiences of the scholars of old and their ijtihad) and others look into the Book and the Sunnah and the fiqh tradition in light of maqasid of shariah. In any event, the Ulema are working personally the later school of scholars is what I follow.

    Astagifirullah
    Allahu Al’am Wa Al’aa Wa Aleem

  18. Zubair Khan says:

    Jazakallahu khair Sh. Yusuf for that detailed answer. It cleared up a lot of issues, alhumdulillah!

  19. Abu Abdullah says:

    Akhi al-Kareem,

    JezakAllahkhairun for your response

    Regarding azeema and rukhsa, I am afraid I do not see the direct relevance to the point at hand, since we are not talking about holding onto a hukm which has dispensation linked to it in certain circumstances such as the rukhsa to not fast in Ramadan while travelling etc. We have the ayah making fasting obligatory, and ayahs specifying/ explaining the rukhsa for us. (it is not that breaking the fast while travelling is a weaker opinion, but we adopt it for the sake of ease etc., rather there is nuss on the issue)

    But rather my question was regarding what would be moving from one opinion to another entirely different opinion (““It is not always the case that taking constantly the strong opinion is the right path” ie taking the weaker opinion rather than the stronger opinion) which is why I mentioned tarjeeh between opinions, which earlier reference were given relating to the concept of juryan al-amal on a other thread

    So for example – to take the opinion that shaking a womans hand is permitted even if you feel it is a weaker opinion, but because it is more applicable today, is not linked to taking the “rukhsa” since there was no rukhsa specified on the issue, rather these are two separate opinions which have their own adilla, one of which the scholar may find stronger than the other, but (apparantly in this school of thought) the scholar take the weaker opinion by using maslaha as a muraji (and this is what i am looking for more references for)

    Can taking a weaker opinion rather than a stronger opinion be framed as taking a rukhsa shar’an, since as far as I am aware the rukhsa cannot be established by a daleel marjooh? – offhand you can refer to Sheikh Abu al-Nur Zuhair’s usool book for this distinction.

    I apologize if this is a little disjointed
    I wanted to put something down just before preparing for jum’a,

    Wasalaam

    Abu Abdullah

    (ps. if you could ask the site admin for my email it is the preferable option for me because i do not like to post it publicly)

  20. Jazak Allah Khair UStadh Abul Hussain,

    Im not sure if this is related, but can you comment on the Maqasid Al-shariah division: of Darurrah, Hajaat and Tahsiniyaat.

    Is it correct to that when a Hajaat becomes wide spread and prevalent then then it takes the ruling of a darurrah?

    How correct is this and what have the scholars you have met have to say?

    May Allah bless you.

    salam

  21. When people gain familiarity with you via interaction then they give you room, flexibility predicated upon association. In any case, let us deal with reality at hand rather than possibilities.

    This doesn’t just happen at personal level – this happens socially as well. Take the Japanese – in the 1980s, it was well-known that the Japanese form of greeting was not handshaking – it was bowing. Did the Americans become offended, or did they bow? If you want to talk specifically about Muslims in the West, in nonMuslim countries, we can either teach them the majority opinion by practicing it and making it common knowledge (as is slowly but steadily happening), or we can find a rukhsa, and another daw’ah oportunity is lost.

    Another issue that comes up is that this fatwa is for the Ummah as was mentioned. Let us look at the issue of the beard well people in Tunis and Turkey and even in Egypt run into major problems with the law over the beard. So we need to be careful not to be so focused on personal experience. Shaikh Qaradawi and Bin Bayyah and many other senior scholars study situations from more than one life context. The need for flexibility comes from living in a globalized world and given that senior scholars have to consider rulings in that light.

    Akhi, with all due respect, you missed my point. My point was not that the beard is waajib, or that women must wear niqaab, or even that the handshaking opinion can’t be followed if one truly believes and follows it.

    My point was that for those of us in the West, much of what is called “hardships” are not. Laypeople complain to scholars about “needing” houses, then scholars issue fatwas allowing mortgages allowing this because they think someone will be out on the street, and I’m not sure if they realize it, but people can actually RENT homes. If you tell this to someone, they say, “But then I’ll lose money, and it costs the same as a mortgage, and this is difficult, and, and, and” and onwards.

    I understand that in some countries there are difficulties where the government persecutes an individual for their religious practice. The person either has to remain and will have to deal with it, and then I can see the need for concessions, or they can choose to leave to where they can practice. THAT is practical reality.

    Finally, I do not understand why it is not possible to issue a general fatwa, which may be strict or “hard” (this is very relative, by the way), which is then qualified with, HOWEVER, if you are in x, y, and z difficulty, we see your problem, here’s the rukhsa for you. My understanding is that the reason Shaykh Qaradawi has ruled as he has regarding the handshake and presented all the evidences he has is to prove that handshaking is allowed generally and that it is forbidden only if there is danger of fitna. This is more a sidepoint, since it was mentioned – my main point is that integration, daw’ah, and “strict practice” need not be mutually exclusive. You can have your cake and eat it too.

    Siraaj

  22. andalus says:

    JazakAllah khair Ustadh Yusuf,

    Just to clarify, I mentioned the issue of tawakkul not for you, but for readers (new or newly practicing Muslims) who may not fully understand it.

    As for the fatwa itself, I take no issue with it. It’s not my place to even have an opinion on Shaykh Qaradawi’s fatwa, let alone disagree it publicly.

  23. Abul-Hussein says:

    Abu Abdullah,

    The best thing here is to listen to Shaikh Muhammad Ddo’s lectures on Qawaid Fiqhiyah and watch the interviews of Shaikh Ibn Bayyah on you tube as a start and actually watch Dr. Raysuni’s talk on al Jazeera (shariah wa hayyat).

    This needs a series of posts so I want to stop while I am ahead this will be the focus of thetranslators inshAllah to deal with making clear the character of this school.

    But before doing so let me say a few things.

    As far as rukhsa and azeema akhi if you understand the contours of these by way of Shaikh Abu Nour Az Zuhayr then go to Sanaatul fatwa by Shaikh Abdullah Bin Bayyah. Remember Abu Nour is theory so you need application of theory this requires a book on takrij or bidayah al mujtahid and also a look contemporary fiqh work particularly the works of Dr. Nur Khadmi and the fatwaa of Shaikh Abdullah Bin Bayyah in these works you can see the dynamic of rukhsa and azeema more clearly in light of maqasid.

    As far as the fasting and traveling example akhi remember that there are ahadith involved to accompany the Quranic injunction and also there is more than one fiqh opinion on it refer to Durr Bayhiyah by Imam Shaukani (r).

    In any event let it be said that what is playing out on the ground with people is a tussle between these two poles rukhsa and azeema and this is even the case in contemporary fatwa which leans towards azeema more than rukhsa. The fiqhi dynamic which the senior scholars who are represented here like Qaradawi, Ibn Bayyah and others is not something the people have become accustomed to because it is misrepresented in this polarized arena we are in. So we see people fight in favor of the rukhsa over the azeema or the azeema over the rukhsa rather than understand the aim of azeema and rukhsa. It is the scholar who who determines when the azeema ought take preference over the rukhsa and vice versa. This is not an issue of tarjeeh as understood in usul it is tarjeeh in light of Maqasid ash Shar’iah.

  24. Abu Abdullah says:

    Abul-Husein

    Tayyib Akhi I await your works on the issue, jezakAllahkhairun

    I have seen already the Sh. bin Bayyah article you are mentioning, and there is some reference there to this specific point but again I am looking for more substantial discussion, inshahAllah I will listen to the lectures on qawaid you have pointed me too, by chance I did listen to a little of this Shaikh’s series on this and found it to be good mashaAllah

    re. fasting example my point was not to debate over the different opinions regarding whether to take by the azeema or rukhsa, but simply to point out that azeema and rukhsa are within usool to do with specific ahkaam and not linked to moving from opinion to opinion. So it may be held by some shuyukh that fasting while travelling is azeema while breaking fast is taking by the rukhsa, and other shuyukh may hold the opposite –

    but this is completely different from moving between different opinions and labelling this is as “rukhsa” (or am I not being clear here? Please forgive me if so)

    Again I will use the same example of shaking a woman’s hand (2 be clear I have no issue with one holding it to be permitted with the same constraints as mentioned by Dr. Qaradawi) – let us stick to that there is clearly an opinion that is it haraam and an opinion that it is permitted with constraints. The schooling I have received and am familiar with, for one to adopt one or the other (from the viewpoint of a scholar) would have nothing to do with azeema and rukhsa, but rather with the strength of istidlaal. Now, this newer methodology is that you can do tarjeeh based upon a maslaha, in this case difficulty, to adopt what you may consider to be a weaker opinion.

    This is something many others disagree with, and oppose, but I am concerned with finding out the details of this methodology to consider what evidences are being used, since I have found that maqasid are being used in a manner which they were not used before, though this is not linked necessarily to these scholars whom we all love

    I do find this comment particularly interesting – “This is not an issue of tarjeeh as understood in usul it is tarjeeh in light of Maqasid ash Shar’iah.” because though I have heard this before (once), it is something i have difficulty reconciling with, I am not sure that it has been articulated yet in a convincing fashion, though this may be my own shortcoming in finding this though I have discussed and requested information from multiple sources on this issue specifically.

    But this is indeed a long and detailed discussion which inshahAllah will occur over time biithniAllah

    jezakAllahkhairun again

    Wasalaam

    Abu Abdullah

  25. Haq says:

    Salaam all
    where can i get hold of the series on Qawaaid fiqh by Sh Dido?
    wassalam

  26. Abul-Hussein says:

    AS

    Abu Abdullah, thanks for your time. The only issue that bothers me is the claim that these scholars are using Maqasid in a way that was not used before. There is ijtihad that is going on but it is group ijtihad and also it is ijtihad that employs not only Maqasid but also comparative fiqh. I did not want to get to this point because it confuses people. The lack of continuity claim I am not comfortable with.

    There are various issues here to be brief tarjeeh in Usul is only one gamet of dealing with a text this actually is concerned more with internal legal integrity of using an evidence so that no contradictions occur or so that differences are resolved. This has little to do with applying the hukm and or fatwa to social contexts. It is Maqasid ash Shar’iah that ultimately guides the fatwa or hukm so that it realizes the aim of Shariah and is far removed from whim or created undue hardship. This is why it takes on a murajih role because it mediates between life and text and lessens the possibility for whim or misplaced fatwa.

    Refer to Ilaam Muwaaqeen and Muwafaqaat regarding maqasid and context for fatwa (place and time).

    There is also more to this than maslaha what about istihsan and what about the principle that the foundation of action is that it is permissible until its impermissibility is proven. We seem to start off with the principle that states the foundation in action is that actions are haraam until proven otherwise. What about the principle of tayseer (ease)? How do you account for ease as the basis of fatwa? We have two trends of fiqh as mentioned the Azeema trend and the Rukhsa trend. The Azeema trend does not consider much more than a hadith or what is said in a fiqh book and it stops at that it does not consider the human element. Case in point, divorce laws there are so many divorces now being pronounced so how do we deal with this? Do we just consider that a difference was pronounced and if it externally meets the conditions for difference it is final? This is what many scholars do they do not consider that the rise in the number of divorce will lead to social breakdown and this implies a violation of a aim of Shariah which is preservation of family. So how is this to be dealt with do we look only to azeema and rukhsa in this or is there something more? This is also is not just an issue of Maslaha akhi we are speaking about what is the nature of fiqh? Is fiqh a dry textbook legal discourse or does it have aims and purposes aside from the overarching aim of worship?

    To be more clear Azeema and Rukhsa go beyond the logical usuli definitions while not being totally divorced from the usuli conceptualization to encompass the issue of hardship and ease. Now how do we judge hardhip and ease this is judged by Shariah and may be informed by custom.

    When working with comparative fiqh and comparative usul al fiqh one gathers all the opinions on a matter and may find various opinions on a matter all worthy of consideration. So how is tarjeeh made is it made simply on strength of text and proof without considering the mahkum alayhi (the mukalif)?

    Are we saying we just find the strongest opinion (tarjeeh) and then just give fatwa on that without considering time place and the Aims of the Shariah? Or are we just saying that we follow the standard madhabi fiqh text and reiterate what is there without looking at the life context?

    This is the problem with the taqleedi model to Fiqh it does not really take into account usul and the taqleedi model of usul really does not account for maqasid. In this model we regurgitate what is in books without dealing with people and life nor really looking to the whole of the Shariah and its aims while keeping in line with the sources of shariah. It must be asked what happened to the understanding that fiqh needs malaaka or legal acumen and prowess, know how and not just book knowledge.

    One thing regarding the Shaikh Qaradawi fatwa that we should be in agreement. The Shaikh made ijtihad and brought a wide range of evidence. Is the matter just istidlaal? Here you have two opinions as you mentione. One that says it is haraam (shaking hands) staying away from it is an obligation so that it is an azeema. To break this rule would need a valid reason in which case that situation would be a rukhsa.

    Then we have the opinion of Shaikh Qaradawi (h). The Shaikh here is saying this is not just a haraam halaal issue it is much more fluid than that. In fact, there are degrees and shades of halaal and haraam that is there are scenarios to this matter.

    It may be that in some cases some things that are halaal may lead to haram so it is disliked to tread the route under various conditions etc. not because it is haraam but given a may lead to haram. It may be that what is considered haram is not haram in all cases but rather there are situations which in fact an act which is haram in one situation is not haram in another.

    Can we honestly say shaking hands with a woman is haram? Or is it the case that we have to qualify that so that it is clear that shaking your mum’s hand is ok and your wife’s hand is ok etc. Now what about a female child who is your neighbor you watched her grow up etc. I like this fatwa to be honest because what it shows is that we think in a dichtomy of halal and haram and this does not represent the fiqh tradition. Likewise we restrict fiqh to a madhab or to hadith and forget about the schools and forget that there are various hadith and forget even that the Sahaba (r) have madhabs.

    I would beg to say that if we studied the fatwa clearly we can see usul applied to life and fiqh.

    As far as the Maqasid issue look at Shaikh Ibn Bayyah’s website teh article of hajji and duroora and listen to his lessons in fiqh of minorities in arabic and english also there are a number of thesis dealing with considering the Maalaat in fatwa etc.

    This needs a series though but also it needs for us to be mature on the net and let mistakes be made and correct each other as brothers and also allow for other opinions not our opinions but those of the scholars.

    Just to get this fatwa of Shaikh Qaradawi out in the air in this forum without having us attack him or and …. is a big accomplishment and I thank Shaikh Suhaib for being brave enough to insist that we need to loosen up.

    Allahu Al’am
    Astagfirullah wa Atubu Ilayhi

  27. Abul-Hussein says:

    AS

    Haq, hope your well. try Ddo.net

  28. admin says:

    Asalamu alaykum,

    I’m preoccupied with exams and unable to chime in as I would like. However, let me say how much I’ve benefited from everyone’s points of view here.

    Ust. Abu Abdullah I would like some clarification on a few points you made and hope that you will be able to shine some light on them for me?

    Regarding the use of Hajjah by Sheikh bin Bayyah to justify his position you said:

    “By not shaking a woman’s hand it could lead to hardship or shared ill feelings and so forth?” which would still be an unlikely circumstance in all honesty, though perhaps not exceptional.”

    How do you define a al-Hajjah? Based on its definition how did you conclude that such occurrences are rare? In my own personal life I’ve experienced this on a number of occasions and can say, without a doubt, that such situations fell under the concept of Hajjah as defined by al-Ghazzali in al-Mustaspha and his teacher Imam al-Haramayn in his works. This was something that was brought to my attention many times as an Imam in the State. Thus, whose definition are you using and on what basis did you conclude that the appearance of this hajjah is rare?

    2. You did not qualify your contention that that tarjih based on Maslaha is something new? I find it odd that after the good number of classical references provided, especially in the Maliki school, you are not more open to this concept? Or, at lest, can admit that it has its place in the classical legal frame work? Is it not acceptable for the qualified lawyer to choose from different opinions, even the Marjoh, that might fit the situation at hand as long as he does not violate a clear text or Ijm’a? Is there an Ijma’ that one cannot do such a thing in the face of a Daroorah or Hajjah? I find that strange since al-Dasqui al-Maliki, in a number of places, states in his Hashiya on Mukhtasar Khalil that he goes against some of the opinions of the school based on “Changing of time and place.” See for example the chapter on renting and al-Ghusul. The same could also be said regarding Ibn Abidin’s famous Hashiyah and his statements regarding a fatwa “Changing according to time and place.” I’m aware that al-Zarkashi, in Bahru al-Muhit, contends that there is an Ijm’a that one is not allowed to take the Marjoh over the Rajih. However, that is in the absence of a sound Hajjah or a Darurah. For that reason we find the famous axiom:

    إذا ثبتت الضرورة جاز العمل بالقول المرجوح نظراً للمصلحة

    “If a necessity is established, then it is allowable to act on the Marjoh in consideration of the Maslaha.”

    It is well known that al-Hajjah can reach the level of a daruruah, thus it applies to the above as well. And this was articulated by al-Shatibi, what was mentioned from Muraqi Su’ud and supported by Dr. Bin Bayyah’s fatwa as well as the fatwa of Dr. Salah Sultan and others. Thus, inshallah, I hope that that clears thing up a bit. However, it is important to realize that not all of the things that fall under Hajjah are open to being changed to a Darrurah and that is an entire different, long and detailed discussion.
    3. Is being new something evil in itself? Why do many of our brothers and sisters have problems with something new? What does the Shari’ah say about something new? What is the role of Tajdid in light of the Prophet’s statement regarding a Mujadid?

    The Maqasid and legal history: [cliff notes]

    If we look at the history of Law we find the Maqasid, and their preservation, underlining many of the orders and prohibitions found in the texts [of course, as you know] there are exceptions [Muharamat li dhati] and so on. Regarding this al-Shattibi claims there is an Ijm’a. Here are a few examples:

    The Qur’an and al-Maqasid:

    1. Haroun’s response to Musa when the latter asked him why he left Bani Israel to worship the golden calf. [this is a good example of taking, what may appear, as the lesser correct of two opinions]
    2. The use of Sad al-Dhiryah in the six chapter of the Qur’an, “And don’t insult those who worship others with Allah……
    3. As Ibn al-Qayyim noted, “That huruf al-Tal’lil appear more than 1000 times in the Qu’ran.”

    The Prophet [may Allah’s peace and blessings be upon him]
    1. Ordering people not to write hadith, then allowing it
    2. Allowing people who had sexual intercourse without a release of fluid to worship without purity, then the order to abrogate it. The former due to the lack or resources and clothing [see Comparative Fiqh vol. 1 college of Shari’ah al-Azhar University.]
    3. Not destroying the K’aba and rebuilding it. Please see the hadith regarding this and Imam al-Nawawi’s contention that this hadith, ‘Allows one to leave a better opinion in the face of greater harm.’ [Sharh of Muslim’s Sahih]
    4. Allowing the Bedouin to urinate in his masjid and not stopping him. As noted by the scholars of Usol, “The Prophet did this in order to stop a greater harm with a lesser one.” Thus, here is an explicit example of going with the lesser of two correct opinions [see Qadaya Fiqhiya al-Mu’asira Azhar University Vol. 1]

    If we look at the Companions we find a large number of examples where tarjih was made based on the Maslaha, at times, even going against, what might appear to the laymen, clear texts from the Prophet [May Allah’s peace and mercy be upon him]. A few examples:

    1. Abu Bakr’s compiling the Qur’an into a book.
    2. Umar’s moving the place of Abraham away from the K’aba
    3. ‘Umar’s refusal to ban young unmarried men who committed zina
    4. ‘Uthman’s opinion about collecting the lost camels of Medina
    5. Umm Salama’s opinion about the time for throwing the pebbles before Zawal.
    6. Aiesha’s statement that, “If the Prophet saw how women were dressed today he would ban them from the Masjid.” see Sheikh Dido’s commentary on this.

    A few latter day examples:

    1. ‘Umar bin ‘Abdul Aziz ordering al-Zuhri to compile the hadith
    2. ‘Umar bin ‘Abdul Aziz’s allowing people to give what was more appropriate for the poor for Zakat al-Fitir.
    3. Abu Hanifa’s opinion regarding giving cash for Zakat al-Fitir/His opinion about wiping over cotton socks towards the end of his life
    4. Imam al-Shafi’s changing of his madhab hence old/new. However, we need to be careful and realize that there are those who misuse that. A mass majority of his changing was based on tarjih of nusus and not restricted to Maqasid and his environment as some tried to contend. The same can be said for the Many statements of Ahmed and the number of times Malik changed the Muwatta as well as the fact that Abu Yusuf and Abu Muhammad changed, according to some, 75% of Abu Hanifa’s opinions. However, we cannot exclude environment, nor maqasid from the equation, and we must honor this balance because some are trying to seperate the Maqasid from the texts and this is dangerous. The same can be said of ‘Urf as well [different issue].
    5. Abdur Rahman ibn al-Qasim’s differing with Malik on a large number of issues based on texts and maqasid.

    Specific Fatwa:

    1. Abi Zaid’s dog and his response to those who chastised him for going against Malik’s opinion, “If Malik was alive today he would use a lion to protect his home.” This was due to the nature of the environment that Abi Zaid lived in.

    2. Ibn Taymiyyah and the Tartar’s drinking alcohol saying, “Let them drink.” as mentioned by Ibn al-Qayyim in al-‘Ilam under “Changing a fatwa according to time and place.” Although some like al-‘Allamah Sheikh Buti disagree with this and say, “Don’t say time and place, but say abilities and places.”

    3. The contention that Business Insurance is permissible since there is a hajjah and the gharar related to the transaction is minimal. Some scholars, such as Ibn Rushd, that there was an ‘Ijma that in the face of a hajjah such a transaction, if the gharar was minimal, become permissible.

    4. The contention that a bastard should be given his father’s name due to the Maslaha [see the essay on this by Dr. Muhammad Rifat Utman al-Azhari in Contemporary Fiqh Issues al-Azhar University Vol. 1]

    Some good resources:

    1. Al-Burhan of Imam al-Harmain [478 A.H]
    2. Al-Mustaspha and the Wajiz of al-Ghazzli [505 A.H]
    3. al-Mahsol of al-Razi [606 A.H]
    4. The Ihakam of al-Aamidi
    5. Qawaid al-Anam of ‘Izi Din Abdul al-Salam [this is a must read]
    6. al-Furooq, al-Dhakira of ‘Iz’s student al-Qarafi al-Maliki
    7. Majm’o al-Fatwa of Ibn Taymiyyah [728 A.H] especially the volume on Usol.
    8. ‘Ilam al-Muwaq’in an Rabil al-‘Amin of Ibn al-Qayyim [a must read]
    9. al-Muwafaqat of al-Shatibi [791 A.H] [another must read]
    10. Hujjatullahi Baligh of Shaw Waliu Allah al-Dahlawi [try and get the version that was corrected by Sh. Sayid Sabiq]

    Contemporary works:

    The most important work written in the last 100 years is that of Imam Tahir Ibn ‘Ashur on the Maqasid. The best print I’ve seen is the one published by the Qatar Religious Affairs Ministry edited by the Sheikh’s student.

    Sheikh al-Qaradawi’s recent book on the Maqasid, his introduction to Fiqh al-Aqaliyat and the articles of Sh. Najjar.

    Any major work on Fiqh coming from the Major Fiqh Councils in the East/West

    http://www.alwihdah.com/view.php?cat=1&id=1681
    http://www.alwihdah.com/view.php?cat=1&id=1682
    http://www.alwihdah.com/view.php?cat=1&id=1683

    Finally, I would consider looking into getting the recording of recent conferences that have taken place concerning the Maqasid. Here is an example of such a conference that was done by The Fiqh Council of India.

    http://www.darululoom-deoband.com/arabic/magazine/1173846412/fix8sub5file.htm

    Sorry that I could not give more time to this discussion, but exams are keeping me very busy so please excuse any mistakes or errors. Also, I’ve noticed a few times you’ve stated you have issues with the fatwa on mortgages. I would be interested to learn why and hope to benefit from you? You are bringing much benefit to the discussion and I hope and pray you will continue.

    Suhaib

  29. admin says:

    Asalamu alaykum,

    Ust. Abu Abdullah I would also recommend researching the following ‘Qaida found in Ibn Taymiyyah’s Majmo’u al-Fatwa:

    إذا ثبتت الضرورة جاز العمل بالقول المرجوح نظراً للمصلحة

    Also, consider Sh. Bin ‘Uthaymin’s discussion on Juryan al-‘Amal when he was asked about the above mentioned axiom:

    مسائل الاجتهادية مبنية على الاجتهاد، وإذا كان الاجتهاد في الحكم فكذلك في محله، فإذا كانت حال المستفتي أو المحكوم عليه تقتضي أن يعامل معاملة خاصة عمل بمقتضاها). كتاب العلم ص: 226

    Also, have a look at al-Nawawi’s Majm’oo 1/88. And Ibn Salah’s ‘Adab al-Mufti wa al-Mustafti under: التيسير في الفتوى نشر قديماً

    Here’s an important article by Sh. Bin Bayyah where he addresses this issue as well:

    حدثنا في الحلقة الماضية من المقال عن نهي العلماء عن تسلق غير المؤهلين على جدار الفتوى، ونكمل فنقول انه من اجل ذلك ضمن العلماء غير المجتهد إن انتصب أي ضامناً لما أتلفه من نفس ومال قال الزرقاني في شرحه لخليل: لا شيء على مجتهد أتلف شيئا بفتواه ويضمن غيره إن انتصب وإلا فقولان وأغلظ الحاكم على غير المجتهد وإن أدبه فأهل إلا أن يكون تقدم له اشتغال فيسقط عنه الأدب وينهى عن الفتوى إذا لم يكن أهلا.

    قال ابن القيم: الفائدة الحادية والأربعون: إذا عمل المستفتي بفتيا مفت في إتلاف نفس أو مال ثم بان خطؤه قال أبو إسحاق الاسفرائني من الشافعية: يضمن المفتي إن كان أهلا للفتوى وخالف القاطع وإن لم يكن أهلا فلا ضمان عليه لأن المستفتي قصر في استفتائه وتقليده. ووافقه على ذلك أبو عبد الله بن حمدان في كتاب: «آداب المفتى والمستفتي» له ولم أعرف هذا لأحد قبله من الأصحاب ثم حكى وجهاً آخر في تضمين من ليس بأهل قال: لأنه تصدّى لما ليس له بأهل وغر من استفتاه بتصديه لذلك.

    وفي المسألة كلام طويل نكتفي منه بما ذكرنا وهو يدل على ما وراءه إلا أنه يمكن أن نستخلص:

    أن المفتي لا بد أن يكون عالماً مستبصرا وأن يكون ذا ديانة.ومن شروط الكمال أن يكون ذا أناة وتؤدة متوخياً الوسطية بصيراً بالمصالح وعارفاً بالواقع متطلعاً إلى الكليات ومطلعاً على الجزئيات موازناً بين المقاصد والوسائل والنصوص الخاصة، ذلك هو الفقيه المستبصر.وأن على الجهات المختصة أن تردع وتمنع غير الأهل من الفتوى، وأن ضمان المفتي قد يكون وجيهاً، إذا أصر على الفتوى، وألحق الأذى بالناس، وكان لا يرجع إلى نص صريح بفهم صحيح، أو إجماع، أو قياس عار عن المعارضة، أو دليل راجح وليس مرجوحاً في حالة التعارض كما أشار إليه الأصوليون قال في مراقي السعود :

    تَقْويةُ الشَِّق هِيَ التَّرْجيحُ وَأوْجَبَ الأَخْذَ بِهِ الصَّحيحُ وإذا عمل بالمرجوح فلا بد من توفر شروط العمل من مصلحة تبتغى أو مفسدة تنفى. فهل عرض مفتو الشاشات والمواقع ـ وما أبرئ نفسي ـ أنفسهم على هذه والآداب ؟

    ثانيا ـ صفة المفتي المجتهد:

    قال إمام الحرمين: المفتى مناط الأحكام وهو ملاذ الخلائق في تفاصيل الحرام والحلال ولم ينكر واحد ولو سبق إلى إنكاره من لا اعتبار به اتهم في دينه كيف والصحابة رضي الله عنهم كانوا يفتون فيتبعون ويقضون فينفذون وكذلك من لدن عصرهم إلى زماننا هذا. ثم مقاصد الكتاب يحصرها فصول.

    فصل: في صفات المفتي والأوصاف التي يشترط استجماعه لها. وقد عدّ الأستاذ فيه أربعين خصلة ونحن نذكر ذلك في عبارات وجيزة فنقول:

    يشترط أن يكون المفتي بالغاً فإن الصبي وإن بلغ رتبة الاجتهاد وتيسر عليه درك الأحكام فلا ثقة بنظره وطلبه فالبالغ هو الذي يعتمد قوله.

    وينبغي أن يكون المفتي عالماً باللغة فإن الشريعة عربية وإنما يفهم أصولها من الكتاب والسنة من بفهمه يعرف اللغة ثم لا يشترط أن يكون غواصاً في بحور اللغة متعمقاً فيها لأن ما يتعلق بمآخذ الشريعة من اللغة محصور مضبوط. وقد قيل: لا غريب في القرآن من اللغة ولا غريب في اللغة إلا والقرآن يشتمل عليه لأن إعجازه في نظمه وكما لا يشترط معرفة الغرائب لا نكتفي بأن يعول في معرفة ما يحتاج إليه على الكتاب لأن اللغة استعارات قد يوافق ذلك مآخذ الشريعة وقد يختص به العرب بمذاق ينفردون به في فهم النظم والسياق ومراجعة كتب اللغة تدل على ترجمة الألفاظ فأما ما يدل على النظم والسياق فلا. ويشترط أن يكون المفتي عالماً بالنحو، والإعراب، فقد تختلف باختلافه معاني الألفاظ، ومقاصدها.ويشترط أن يكون عالماً بالقرآن. فإنه أصل الأحكام، ومنبع تفاصيل الإسلام، ولا ينبغي أن يقنع فيه بما يفهمه من لغته. فإن معظم التفاسير يعتمد النقل. وليس له أن يعتمد في نقله على الكتب، والتصانيف. فينبغي أن يحصل لنفسه علماً بحقيقته. ومعرفة الناسخ والمنسوخ لا بد منه. وعلم الأصول أصل الباب. حتى لا يقدم مؤخراً، ولا يؤخر مقدماً، ويستبين مراتب الأدلة والحجج.

    وعلم التواريخ مما تمس الحاجة إليه، في معرفة الناسخ والمنسوخ. وعلم الحديث، والميز بين الصحيح والسقيم، والمقبول والمطعون.

    وعلم الفقه وهو معرفة الأحكام الثابتة، المستقرة الممهدة. ثم يشترط وراء ذلك كله، فقه النفس فهو رأس مال المجتهد. ولا يتأتى كسبه. فإن جُبل على ذلك فهو المراد ، وإلا فلا يتأتى تحصيله بحفظ الكتب.

    ولكن لا يشترط أن تكون جميع الأحكام على ذهنه في حالة واحدة ولكن إذا تمكن من دركه فهو كاف.

    ويشترط أن يكون المفتي عدلاً لأن الفاسق وإن أدرك فلا يصلح قوله للاعتماد كقول الصبي.

    قال في الدر المختار: المفتي عند الأصوليين هو المجتهد أما من يحفظ أقوال المجتهد فليس بمفتٍ وفتواه ليست بفتوى بل هو ناقل.

    ثالثا ـ الفتوى صناعة مركبة من عناصر، كل عنصر منها يفتقر الي شروط وضوابط .

    أولا ـ النازلة أو الواقعة وهي الأمر المطلوب الحكم عليه، ماهي طبيعتها سياسية اقتصادية اجتماعية محلية دولية، ما هو زمانها ومكانها شخوصها مآلات حكم الفقيه. كل هذه العوامل تحدد نوع الحكم الذي يصدره المفتي ان ذلك هو العلم بالواقع.ثانيا ـ الحكم الشرعي… الإباحة الكراهة الندب الوجوب والتحريم لكل واحد من هذه الاحكام تفريعاته فالواجب قد يكون لذاته وواجب لغيره، والحرام قد يكون محرما تحريم مقاصد اوتحريم وسائل ولكل هذه الانواع مرتبته ومسقطاته ومرجحاته.

    ثالثا ـ الدليل: هل هو من دلالات الالفاظ نصا أو ظاهرا أو اشارة او مفهوما… الخ.أو هو من أدلة المقاصد قياس، مصلحة مرسلة استحسان استصحاب…. هل هو كلي او جزئي. المتصرف في هذه العناصر والمهندس لهذا البناء هو المفتي الذي يجب أن يكون واضح الفكرة دقيق الملاحظة مستوعباً بالإضافة إلى المادة الفقهية في تنوعها وثرائها تفاصيل الواقع وتضاريس خريطته ملاحظاً الطبقة التي تنتمي إليها فتواه محققاً مناط دعواه.

    كل ذلك يدل على ان الفتوى صناعة اذ ان من يفتي على المواقع والشاشات قد لا يحترم المرجعيات وادبيات هذه الصناعة.

    فمتى يقف مفتو المواقع المجهولون عند حدهم؟

    * عضو مجمع الفقه الإسلامي

    ووزير العدل الموريتاني الاسبق

    http://www.asharqalawsat.com/leader.asp?section=3&article=368431&issue=10061

  30. admin says:

    Asalamu alaykum,

    Here is an important series on Ijtihad based on the Maqasid. Its proofs, guidelines and areas of influence. By Dr. Nur al-Din bin Mukhtar al-Khadimi. It is in two volumes, in Arabic and gives a good introduction to the topic.

    Here’s the introduction with the links at the bottom:

    الاجتهاد المقاصدي بكل إيجاز واختصار: العمل بمقاصد الشريعة، والالتفات إليها، والاعتداد بها في عملية الاجتهاد الفقهي . ‏

    وموضوعه أصولي فقهي يتناول قضية مهمة للغاية، اصطلح على تسميتها: ( بمقاصد الشريعة الإسلامية ) ، التي تعد فنا شرعيا معتبرا، له أهميته ومكانته على صعيد الدراسة المعرفية والأكاديمية، وله فوائده وآثاره على مستوى الواقع الإنساني ومشكلاته وأحواله ومستجداته . ‏

    وفي العقدين الأخيرين على وجه التحديد، كثر الكلام عن المقاصد الشرعية ومكانتها ودورها في استنباط الأحكام، وكانت جملة المواقف والآراء تتراوح بين ثلاثة اتجاهات : ‏

    ‏- الاعتماد المطلق على المقاصد، وجعلها دليلا مستقلا تثبت به الأحكام، تأسيسا وترجيحا . ‏

    النفي المطلق للمقاصد، واعتبارها أصلا ملغى لا يلتفت إليه، ولا يقوى على مواجهة الأدلة والنصوص والإجماعات الشرعية . ‏

    ‏- التوسط في الأخذ بالمقاصد، والاعتدال في مراعاتها والتعويل عليها بلا إفراط ولا تفريط، وبلا إعمال مطلق أو نفي مفرط، وهو الموقف الأقرب للصحة والأليق بمنظومة الشرع ومقررات العقل ومتطلبات الواقع ومصالح الناس . ‏

    والحق أن طرح هذه القضية أمر قديم جدا، وجذوره ممتدة إلى بداية نشأة الفكر الإسلامي الفلسفي والكلامي والأصولي، وإلى ما يعرف بقضايا التعليل، والتحسين والتقبيح، وعلاقة الشرع بالعقل على وجه العموم .. غير أن الاهتمام بها ازداد تأكدا وضرورة في الآونة الأخيرة لطبيعة العصر الحالي، ولما بلغه من ظواهر وحوادث هي في حاجة ماسة إلى معالجتها في ضوء الاجتهاد المقاصدي الأصيل والنظر المصلحي المتين، يسد الفراغ الفقهي فيها، ويبرز حيوية الشريعة وصلاحها وشمولها وخلودها وحاكميتها على الحياة والوجـود . ‏

    لذلك كان لزاما على أهل العلم وأرباب الاجتهاد أن يتصدوا لمتطلبات هذه القضية في ضوء معطيات الواقع المعاصر، على وفق منهجية تراعي التوسط في الأخذ بالمصالح، بغية نفي الآثار السيئة لمنهج الغلاة والنفاة، وبغرض بيان أحكام الله تعالى في النوازل المستحدثة، التي لم ينص أو يجمع عليها، أو التي يتعين ترجيحها وتغليب بعض معانيها ومدلولاتها، بسبب كونها ظنية واحتمالية لم تستقر على معنى معين ومدلول واحد . ‏

    وقد كانت فكرة طرق هذا الموضوع ترد علي منذ زمن ليس باليسير، وخاصة عندما كنت طالبا بحامع الزيتونة لما انعقد ملتقى الشيخ محمد الطاهر بن عاشور رحمه الله في سنة 1985م(1) ، فقد كانت مسألة المقاصد ودورها الفقهي، من المحاور المهمة التي حظيت بنصيب وافر من النقاش والتعليق . ‏

    لذلك قررت بعون الله تعالى خوض هذا الموضوع وفق منهجية، الغرض منها: بيان حقيقة المقاصد الشرعية ومكانتها في الاجتهاد، وأهميتها في معالجة مشكلات العصر في ضوء الضوابط الشرعية، دون أن نعدها دليلا مستقلا عن الأدلة التشريعية كما رأى ذلك بعض المفكرين والباحثين، بل هي معنى مستخلص ومستفاد من تلك الأدلة ومن سائر التصرفات والقرائن التشريعية . ‏

    ولا أدعي أنني قد أتيت بالجديد المبدع في هذا السياق، فالأوائل رحمهم الله تعالى لم يتركوا للأواخر سوى بعض نواحي التكميل والتتميم والتعليق، فقد كان لهم فضل السبق في التأسيس والإنشاء، وكل ما في الأمر أنني أضفت بعض الشيء اليسير على مستوى التجميع والترتيب والربط بالواقع المعاصر، وإثارة ذوي الهمم لزيادة الإقبال على البحث والتحقيق، وتقرير بعض المعالم العامة التي قد يستنير بها أهل الاجتهاد في التصدي لأحوال العصر بمنظور العمل بالمقاصد والالتفات إليها . ‏

    ويمكن أن أورد فيما يلي بعض الإشارات العامة المتضمنة في الموضوع، وهي لا تغني عن الرجوع إلى بيانها في صلب الموضوع وثناياه : ‏

    ‏* المقاصد الشرعية أمر ملحوظ في المنظومة التشريعية، وقد توالت على تقريره أدلة وقرائن ومسلمات كثيرة، وهو من المعطيات المهمة والضرورية في الاجتهاد والاستنباط، إذ يمكن أن نعتبره إطارا شاملا ومرجعا عاما لتأطير الظواهر والحوادث المعاصرة

    ‏* العمل بالمقاصد منهج قديم وقع تطبيقه في العصر النبوي وعصور الصحابة والتابعين وأئمة المذاهب، كما كان مستحضرا لدى عموم المجتهدين وأغلب الفقهاء والأصوليين . ‏

    ‏* العمل بالمقاصد ليس على عمومه وإطلاقه، فهو مقيد بعموم الأدلة والقواعد والضوابط الشرعية، وبسائر الأبعاد العقدية والأخلاقية والعقلية المقررة، وهذا ما يجعلنا نعد المقاصد أصلا تابعا للأدلة وليس دليلا مستقلا ومنفرد . ‏

    ‏* مبررات دعاة استقلال المقاصد عن الأدلة ضعيفة ومرجوحة، وهي محمولة على ما وقع فيه أصحابها من تعسف في الفهم وسوء استخدام التطبيقات، والاكتفاء بالنظرة الأحادية التجزيئية لمنظومة التشريع، والحماس الذي ليس في محله، والتحامل الملحوظ أحيانا . ‏

    ‏* القول بارتباط المقاصد بالأدلة لا يعني تعطيل المصالح الإنسانية وتضييق نطاقها وأحجامها، أو تعطيل دور العقل وتحجيم فعله وأثره في الفهم والإدراك والاستنباط والترجيح وغيره، بل إن ذلك القول تأكيد لميزان الإسلام في النظر المقاصدي، ومراعاة المصالح من حيث انضباطها واطرادها وظهورها وجريانها على وفق الصلاح الحقيقي والنفع العام، وليس بحسب الأهواء المتقلبة والخواطر والأمزجة المضطربة.. وفيما يخص دور العقل حيال عدم استقلال المقاصد عن الأدلة، فإن دوره مضمون وثابت، وله ضروبه وصوره، وهي تتمثل جملة في مسالك الفهم والإدراك والتمييز والإلحاق والتقعيد والإدراج والمقارنة والترجيح والاستقراء، وغير ذلك مما يعد شروطا أساسية لفهم التكليف وفعله في الواقع، ولسنا نضيف الجديد إذا قلنا: بأن الشرع كله ما نزل إلا ليخاطب عقل الإنسان ويجعله مناطا لتكاليفه وأحكامه، تحملا وأداء، فهما وتنزيلا . ‏

    وتدخل العقل يلاحظ بصورة أكبر في المجالات التي لم ينص عليها أو يجمع عليها، وفي المجالات الظنية الاحتمالية التي يتعين ترجيح ما ينبغي ترجيحه في ضوء الاجتهاد المقاصدي والنظر العقلي الأصيل . ‏

    ‏* الثوابت الإسلامية لا ينبغي تغييرها أو تعديلها بممارسة الاجتهاد المقاصدي، بل إن طابع الثبات فيها هو نفسه المقصد المعتبر والقطعي والثابت الذي لا يتغير بتغير الزمن والظرف، والذي جعله الشارع محفوظا ومعلوما إلى الأبد، وغير خاضع للتأويل والنظر واحتمال التلاعب والتعطيل والتعسف . ‏

    وتشمل الثوابت جملة القواطع المضمونية، والتي هي العقائد والعبادات والمقدرات وأصول المعاملات والفضائل وكيفيات بعض المعاملات، وتشمل كذلك القواطع المنهجية، وذلك على نحو الجمع بين الكليات والجزئيات، والنظرة الشمولية، ومراعاة التدرج والأولويات في معالجة الأمور، وغير ذلك . ‏

    ‏* الوسائل الخادمة للثوابت يجوز فيها النظر المقاصدي، قصد اختيار أحسنها وأصلحها خدمة للقواطع، وتمكينا لها، ومثال ذلك: الاستفادة من علوم العصر ومستجدات الحضارة لتقوية الاعتقاد في النفوس، وتيسير أداء العبادات، كاتخاذ مضخمات الصوت في الجمعات والأعياد، واتخاذ طوابق الطواف والسعي والرجم، وغير ذلك من الوسائل والكيفيات التي تخدم القواطع في حدود الضوابط الشرعية . ‏

    ‏* غير الثوابت يتعين فيها الاجتهاد المقاصدي الأصيل والنظر المصلحي المشروع، وهي تشمل المجالات التي لم ينص أو يجمع عليها، والمجالات الظنية الاحتمالية، ومن أمثلة ذلك النوازل المستحدثة في الأمور الطبية كطفل الأنبوب والاستنساخ وبنوك الحليب والمني.. وفي الأمور المالية كالسندات والأسهم والبيع بالتقسيط والتأمين .. وكذلك الوسائل المتغيرة للمقاصد المقررة، والتي ينظر في أصلحها وأقربها لمراد الشرع ومصالح الناس .‏

    ‏* هناك موضوعات شرعية أصولية مهمة جدا في المقاصد، وهي تشكل ميدانا رحبا لإجراء النظر المقاصدي، وتلك الموضوعات على الرغم من خدمة السابقين لها، تمثيلا وتدليلا وتأصيلا، غير أنها تبقى في حاجة أكيدة لزيادة تحقيقها ودراستها، ولا سيما فيما يتعلق بتجلية تطبيقاتها المعاصرة، ومن تلك الموضوعات:‏

    ‏- القياس الكلي أو الواسع .‏

    ‏- المناسبة .‏

    ‏- الضرورة الخاصة والعامة (1) . ‏

    ‏* الاستعانة بمستجدات الحضارة ووسائل التكنولوجيا والإعلام والاستئناس بالعلوم الإنسانية والاجتماعية والاقتصادية، مع مراعاة محاذير ذلك .. والغرض من ذلك كما ذكرنا هو تقرير القواطع والثوابت، وسد الفراغ الفقهي في المجالات المستحدثة، وترجيح الأصوب والأنفع في الميادين الظنية والاحتمالية .‏

    ‏* إعادة صياغة العقل العربي والإسلامي، وتنقيته مما وقع فيه من شوائب وشبه أصابته بنوع من الخلل في التعامل مع المنظومة الشرعية والمنهج المقاصدي الأصيل .‏

    ‏* إنارة العقل العالمي وتبصيره بكونية الإسلام وإنسانيته وحضاريته، وبأنه رسالة للإصلاح والتسامح والحرية والنماء الشامل، وهذا من شأنه أن يمكن المسلمين من إزالة أو تضييق مبررات الإقصاء والتحامل، وبالتالي من تحقيق الأهداف والمقاصد الإسلامية الملحة في الواقع المعاصر، على نحو التحرر الاقتصادي والأمن الغذائي وامتلاك المبادرة الصناعية والحضارية، وأداء الدور الاستخلافي العام .‏

    ‏* التأكيد على أن الاجتهاد المعاصر ينبغي أن يتسم بطابع الجماعية والمؤسساتية والتخصصية، وأن يتصدى له الفقهاء والخبراء والمصلحون، وذلك بهدف التوصل إلى أنسب الحلول الشرعية وأقرب المقاصد الشرعية فعصرنا المعقد في ظواهره وسماته، ونوازله ووقائعه، ليس له من سبيل سوى اعتماد الاجتهاد الجماعي، على الرغم من أهمية الاجتهاد الفردي ومحدودية مجالاته وميادينه في الواقع المعاصر . ‏

    وفي ختام هذه الدراسة أرجو من الله أن يغفر لي ما وقعت فيه من زلل وخطأ، وأن يهديني إلى خير الأقوال والأعمال، وأن يدخر لي هذا الجهد في موازين أعمالي وسجل حسناتي، وأن ينفع به عموم القراء والطلاب والدارسين، وأن يثيب ثوابا حسنا كل من ساعد في إنجازه وقرأه وأسهم في طباعته ونشره والإفادة به . ‏

    http://www.islamweb.net/ver2/library/ummah_Book.php?lang=A&BookId=265&CatId=201

    http://www.islamweb.net/ver2/library/ummah_Book.php?lang=A&BookId=266&CatId=201

    Suhaib

  31. Abu Abdullah says:

    Please note – there were several points that were mentioned in the previous posts that I would have liked to engage upon, but the discussion is in danger of being swamped with too many points to address methodologically, so please forgive me any omissions.

    It was mentioned by Ust. Abul-Hussein

    “There are various issues here to be brief tarjeeh in Usul is only one gamet of dealing with a text this actually is concerned more with internal legal integrity of using an evidence so that no contradictions occur or so that differences are resolved. This has little to do with applying the hukm and or fatwa to social contexts. It is Maqasid ash Shar’iah that ultimately guides the fatwa or hukm so that it realizes the aim of Shariah and is far removed from whim or created undue hardship. This is why it takes on a murajih role because it mediates between life and text and lessens the possibility for whim or misplaced fatwa.”

    Regarding the first part I respectfully disagree – this whole issue links back to tarjeeh and it is the center of the discussion as far as I am able to see. As we know from all that has been written – we are only discussing the dhunniyyaat, and when one is faced with multiple (apparently contradictory) adilla and requires to extract from them a hukm he is required to do tarjeeh, (the strengthening of 1 of the 2 possibilities/ adilla over the other in order to adopt/ work by it). The point that is being raised now are the ways of doing this tarjeeh, which is what my questions are regarding, not only in independent ijtihaad but also the ijtihaad between different aqwaal as mentioned by Sh. Bin Bayyah when he wrote regarding this very point

    أما النوع الثالث فهو اجتهاد ترجيحي وهو اختيار قول قد يكون مرجوحاً في وقت من الأوقات إما لضعف المستند – وليس لانعدامه- فيختاره العلماء لمصلحة اقتضت ذلك وهذا ما يسمى عند المالكية جريان العمل.

    On the same issue regarding the point of Imam Suhaib – you mentioned in one of your replies

    “You did not qualify your contention that that tarjih based on Maslaha is something new? I find it odd that after the good number of classical references provided, especially in the Maliki school, you are not more open to this concept?”

    I actually said “newer” methodology, based upon 2 issues, the first weaker reason being that I have not come across that from the Shuyukh that I have sat with or seen it throughout my studies in usool and fiqh, but the much stronger reason (given my limitations) is the words of Sh. Bin Bayyah when he himself mentioned

    ولم يَضبط مفهوم جريان العمل الذي يرجح الضعيف غير المالكية؛ لأنه من أصول المتأخرين اعتبارا بأصل إمامهم في القول بعمل أهل المدينة

    This is why I was careful to say “newer” and not “new”.

    As for why I find these opinions somewhat problematic, is not the theory itself (though I may disagree with it, and consider it to be a minority opinion), but the application, which we will come to soon inshahAllah. With respect to why I disagree with the theory, as you have mentioned, in bahr al-muheet it is mentioned that there is ijmaa’ on not considering the marjooh, but what is perhaps even more pertinent is his opinion on the conditions of tarjeeh where he states that tarjeeh has to be between adilla and not aqwaal, since from the conditions of tarjeeh are –

    أن يكون بين الأدلة, فالدعاوى لا يدخلها الترجيح وانبنى عليه أنه لا يجري في المذاهب, لأنها دعاوى محضة تحتاج إلى الدليل والترجيح بيان اختصاص الدليل بمزيد قوة فليس هو دليلا, وإنما هو قوة في الدليل

    This is further qualified,

    وحكى عبد الجبار في العمدة “عن بعض أصحابهم دخول الترجيح منها, وضعف بأن الترجيح ينشأ من منتهى الدليل, فإذا لم يكن دليلا لم يثبت الترجيح والحق أن الترجيح يدخل المذاهب باعتبار أصولها ونوادرها وبيانها, فإن بعضها قد يكون أرجح من بعض

    I have seen the references by Sh. Bin Bayyah on this issue, but until now
    I have not seen a conclusive evidence as to why this opinion is adopted rather than simply a reference that this opinion did exist except that it is based upon the opinion of Imam Malik to take into account the actions of the people of medina (which means for the other madhahib this is not going to be considered at all), but I am not well versed in Maliki scholarship which is why I am still asking for these references to see if there is something extra.

    To now return to the initial statement “This has little to do with applying the hukm and or fatwa to social contexts.” – I am somewhat perplexed. If the mufti is a mujtahid then he will do his own ijtihaad according to the situation and deliver a verdict based upon the adilla taking into account the reality – but this is all part of ijtihaad within usool-al-fiqh and I find it confusing as to why you are alluding that this should be taken out of this discipline into another area. Otherwise what you are saying is that usool and ijtihaad are just theories which have no application in reality, which is a misconception wa Allahu Allam. And the work of a mufti follows that of the mujtahid in essence.

    Some other initial points raised

    “We seem to start off with the principle that states the foundation in action is that actions are haraam until proven otherwise. What about the principle of tayseer (ease)? How do you account for ease as the basis of fatwa?”

    First of all this initial foundation is differed over. Refer again back to bahr al-muheet for the Sha’fi position on this – where he mentions that

    لمثبت للحكم يحتاج للدليل بلا خلاف.وأما النافي فهل يلزمه الدليل على دعواه؟ فيه مذاهب

    Even the foundation that things are permitted (not actions) is differed over. I follow that every action requires an evidence and there is nothing that has been left out of the deen, and this is also linked to the issue of takleef lilghaafil muhaal, as for things if there is no harm in them then they are permitted in origin based upon the ayah in al-baqara.

    As for the principle of tayseer, this is again linked to tarjeeh and is not from the masadar of ahkaam, but is rather a part of tarjeeh. As far as I am aware – in classical scholarship the issue of tayseer comes about when the mujtahid is unable to do tarjeeh after exhausting his efforts on finding the correct hukm, so at that stage issues such as ease and difficulty come into the equation, and again this is differed over with Mawardi for example narrating the preference to take the more difficult. This is similar to the rule of al-akh bi al-uqul.

    The major point being that ease is not the origin of iftaa, or ijtihaad, but rather an aspect of tarjeeh. There is difficulty in takleef, and there is ease accounted for within takleef, so it is no good to simply posit that the origin of everything is ease (as we understand it), but rather in the context we are discussing here we know that there is no takleef of muhaal, and that the durooriyaat makes permissible the prohibited.

    “So how is tarjeeh made is it made simply on strength of text and proof without considering the mahkum alayhi (the mukalif)? ”

    Now we come to the issue of the reality, and this is done with each situation. There are dispensations which take into consideration the makhum alayhi, which come underneath ahleya, so in the context we are discussing here we get onto the issue of haaja and durooriyaat – which inshahAllah is the next issue.

    Imam Suhaib mentioned

    “How do you define a al-Hajjah? Based on its definition how did you conclude that such occurrences are rare? In my own personal life I’ve experienced this on a number of occasions and can say, without a doubt, that such situations fell under the concept of Hajjah as defined by al-Ghazzali in al-Mustaspha and his teacher Imam al-Haramayn in his works. This was something that was brought to my attention many times as an Imam in the State. Thus, whose definition are you using and one what basis did you conclude that the appearance of this hajjah is rare?”

    First of all – I find Dr.al-Zuhaili’s definition of haaja good whereby he mentions that

    اذا فقدت لا تختل نظام حياتهم كما في الضروريات و لكن يلحقهم الخرج و المشقة

    Or we can return to Imam al-Shatibi

    وأما الحاجيات فمعناها أنها مفتقر إليها من حيث التوسعة ورفع الضيق المؤدي في الغالب إلى الحرج والمشقة اللاحقة بفوت المطلوب

    If we want to talk about Imam Ghazali and Imam Juwayni opinions of what is haaja, then we also have to say that their own understanding of when can it have an effect which is that a maslaha is not considered if it falls in the category of a haaja, which is also the consideration of the majority of ulama.

    Amongst the difficulties made easier mentioned in the discussion of haajiyaat include for example the permission to join on travel, or pray while sitting if you re ill, or divorce and so on – either way, I am not sure that making an excuse for not shaking hands would lead to such comparable difficulty very often, for example how many times does ones health, job or happiness in life depend on such an issue for the general person? (But this is of course subjective perhaps you have your own experiences, I would refer to what other brothers who are from the states have mentioned on this thread above as anecdotal evidence)

    But this is really beside the point here anyway – since in the case of the fatwa of Sh. Bin Bayyah, he mentions that “the origin [of this ruling] is that a man is not allowed to shake hands with a woman”, (we won’t discuss the exceptions of the elderly etc.)and then mentions “the questioner will state that, ‘By not shaking a woman’s hand it could lead to hardship or shared ill feelings and so forth?’ If not shaking hands will lead to the actuality of those fears, then it is allowable to shake hands as long as there is no evil feelings or affection for the woman [and vice versa].”

    In other words – the origin is impermissibility which is made permissible for a haaja. Now – I would imagine this links to the issue of the rule that the general haaja takes the level of a duroora and can therefore make the impermissible permissible? (this is the apparent train of thought of the fatwa please correct me if I am wrong?)

    That particular rule as I have understood it only comes into effect when the haaja reaches the level of general need for the whole society to function properly without someone falling into duroora, and if the exception was not made the society would not be able to function – and surely it is not the reality that if the Muslims did not shake the hands of people of the opposite sex the society would cease to function and some of the people would fall into the level of duroora type hardships?

    (As mentioned in al-burhan –
    والضرب الثاني ما يتعلق بالحاجة العامة ولا ينتهي إلى حد الضرورة وهذا مثل تصحيح الإجارة فإنها مبنية على مسيس الحاجة إلى المساكن مع القصور عن تملكها وضنة ملاكها بها على سبيل العارية فهذه حاجة ظاهرة غير بالغة مبلغ الضرورة المفروضة في البيع وغيره ولكن حاجة الجنس قد تبلغ مبلغ ضرورة الشخص الواحد من حيث إن الكافة لو منعوا عما تظهر الحاجة فيه للجنس لنال احاد الجنس ضرار لا محالة تبلغ مبلغ الضرورة في حق الواحد وقد يزيد أثر ذلك في الضرر الراجع إلى الجنس ما ينال الاحاد بالنسبة إلى الجنس وهذا يتعلق(

    So I do not see the validity of this particular application, but perhaps I am completely mistaken in the approach of the Shaikh here and there is no detail to the fatwa so it could be another justification. Again, my initial comment was more based on an understanding of the reality, personally and the anecdotal evidences mentioned above.

    Which brings us onto the issue of the fatwa on mortgage, which is perhaps more pertinent here since there are full details given and it has not come from a specific Maliki scholar as such but rather from the European Fiqh Council. It was based on the rule that necessity permits the prohibited (and then using the rule that the general need takes the position of a duroora) as well as the statement that some scholars including Imam Abu Hanifa and others allowed the working with fasid contracts and interest in lands other than dar-al-Islam.

    As for the complete taking out of context the classical opinions you can refer to this article

    http://www.al-razi.net/website/pages/ma2.htm

    which clarifies what the opinion of the hanafi school is in this issue, and the context etc.

    And with respect to the first point – it is well known that if you can afford to pay a mortgage you can afford to pay rent, so how this justification can be given is difficult to understand.

    Also using the rule that haaja can take the level of duroora, according to the Shaikhs opinion this can only be used in qiyas and not in areas of nus, and riba is surely an area of nus.

    I have seen the full text of the fatwa and the justifications given, and to be honest I really struggle with it, and I also struggle with what some of the shuyukh engaged with the fatwa have said in response to questions raised, but I think it is going to be too long, and perhaps inappropriate, to put down the whole discussion of this issue here and what I have written is already too much

    As for the references you have given me, jezakAllahkhairun

    With respect to the ma’asira i will read it because I am not familiar with the material and it seems precisely on this topic, but with respect to the classical books you have mentioned I am mostly familiar with them and I am not sure what in particular you want me to refer to so if you could please point me to the relevant sections that you believe are pertinent to this manhaj it would be more appropriate, since to be honest someone could also probably list the same books in a reference against it.

    I would have liked to enter the discussion on maqasid and the evidences you have mentioned, but I do not think this is the majjal for it – suffice to say that the scholar has to ensure that his ijtihaad is in line with the maqasid, but any understanding that somehow the maqasid overrides everything else is fatally flawed and a misunderstanding, and I am fearful that there is a trend heading in this direction, wa Allahu Allam. (Many of the examples given have nus behind them as it is, which is a common affliction of the whole maqasid discussion today, and I think the point you made re. the jadeed of Imam Shaf’i is appropriate)

    However I would like to encourage us and in particular Ust Abul Hussein to read the part of the article you posted entitled

    المبحث الرابع: فساد الدعوة إلى استقلال المقاصد عن الأدلة الشرعية
    http://www.islamweb.net/ver2/library/ummah_ShowChapter.php?lang=A&BabId=15&ChapterId=15&BookId=265&CatId=201&startno=

    Please forgive me any mistakes, I wanted to put this down quickly out of respect to the attention that has been given to the discussion, I also have several other commitments to attend to. Also I pray that no-one is at all offended by anything written here, and that we love each other since we are all inshahAllah seeking the same goals.

  32. Abu Abdullah says:

    Salam alaikum

    Just to ensure we do not get into a debate over the details of the issue of shaking hands of non-mahram, though I have not openly stated the opinion I am upon until now – perhaps it is a good time for me to state that I actually follow the opinion of Dr. Qaradawi and various other scholars in the issue of permissability of it if protected from fitna, so that we do not get caught up in the specific fatwa here

    Rather, it is the thinking behind some of the comments on this thread, and other fatawa etc. that is being discussed, and my whole intervention on this thread came about from discussing the point made by Abul-Hussein that “It is not always the case that taking constantly the strong opinion is the right path”, and I am not focusing on the particular hukm per se.

    This is why i mentioned on anther thread
    “In the end this is an issue of ikhtilaf, even though the ikhtilaf on the issue is perhaps not well known. ”

    If someone believes it is stronger in itself, then they can implement it when necessary. If they believe it is not permitted, which is admittedly the jumhoor position – then they should not do it in my opinion, wa Allahu Allam,

    and i believe this is the mehwar of the discussion – the approach behind the taking of a rule and not the rule itself

    wasalaam
    Abu Abdullah

  33. Haq says:

    Salaam
    Jazzak Allah khair Ustadh Abul Hussein for the link but the link does not work! anyway Nice to see you write again.

    Ustadh Suhaib, please keep this article with all the comments, as an interesting discussion is going on as well as your suggestions on reading material.

    Peace

  34. admin says:

    Asalamu alaykum,

    Jazakallah alf khar Ust. Abdallah! I’ve found your response most enlightening and, although I maintain my differences with you, I hope you will take the time to look at the evidences given to you regarding juriyan al-‘Amal. I wonder if Sh. Bin Bayyah’s reference to the Mutaikhirin can be read into since there are a number of classical examples provided? A good look at the latter classical texts of the Malikis, as was referenced above and before, shows this to be the case. A good example is Badru al-Din al-Qarafi, not Shihab al-Din al-Qarafi, who, during his time dealt with the issue of the popularly excepted Maliki opinion that if a man divorces his wife, she gets the kids until she gets married again. Many men were taking advantage of this and began to renounce their children s’ rights upon them as soon as the divorce was completed. This was done in order to free the man from his parental obligations. This case was presented to al-Qarafi and many Malikis opposed his contention that since the man had not rights on the child before his/her mother got married again, he had nor rights to denounce in the first place! Thus, as soon as she married the child went back to the father. In fact, he wrote a 77 pg. response to the Malikis of his day who said, by giving the father his rights again he’d gone against the Mashur, saying “We have been changing the mashur for centuries based on one thing, “Maslaha.”

    Perhaps, akhi, you should take a better look at the school in order to understand this concept [juriyan al-‘Amal]. If you are coming from the Shafi opinion and I from the Maliki, then it is only certain that we are going to differ. I honestly felt that I’ve provided you enough resources to understand that this position, although adopted by latter day Malikis [that being a good 3-5 hundred years ago] is accepted by the school. In my readings of the classical Maliki law manuals. Thus, we might be wasting our time trying to prove something that you understand from your school and training and I from mine? It is well known that Dr. Bin Bayyah is a Mujtahid in the school. This does not make him free from error, but I’ve not seen anything from him that differs with the Malikis of Egypt, nor the most trusted resources taught today in the school itself.

    Finally, after reading your posts my conclusions, with all respect, is that we have been taught and trained to read and understand in a different fashion. Western Muslims have not been able to overcome the Jedi Knight, Gladiator, Hero/Villain construct. For that reason it is rare to find humility amongst us, but instead an attitude of I’m right, I’m here to teach and I’m taking the brothers to the River Jordan. For that reason, I would like to thank you and Abul Hussein for maintaining this and exhibiting such noble morals and respect, the likes of which are not seen on the net. Thus, akhi, I’m not really interested in continuing this any longer. We will all bring our points, go and research, ask our teachers, and continue to support our claims. I have seen, many a time, the noble wings of brotherhood burned by the fire of ambition and arguments. I pray that my words have not hurt anyone here and would like to excuse myself from this discussion. I’m currently planning to translate and important work on the adab of al-Baht wa al-Munadharah. In the future I’m working on a way to inculcate that text into participation on the site. I would like to thank you and all of the brothers/sisters for the grace exhibited during this discussion. Although we have failed to convince each other of our arguments, it is my hope that others will read this and say “Wow! Muslims can actually talk with our losing it!”

    Again I would like to thank Ust. Abdullah and Ust. Abul Hussein for the important contributions. Reading your posts I felt like I was watching mountains of knowledge and felt my own ignorance and insignificance as I witnessed the mastery which you both of you maintained. I pray that you, since you are both more knowledgeable, will continue this discussion and let us drink from your hands and learn from you.

    SDW

  35. admin says:

    Asalamu alaykum,

    I think what we have here, at least on the issue of going with the marjooh is a simple technicality that I, in my ignorance, failed to mention. I was very lucky to meet Dr. Ahmed Taha al-Rayyan today and asked him about the concept of Jariyan al-‘Amal. He stated to me, “Without a doubt it exist and it falls upon the mufti to use it at his discretion.” Latter one I asked him for its definition and he told me that it is an allowance in the face of circumstantials such as ‘urf, maslaha and so on that allows the mufti to utilize the marjooh.” Then he told me that he is actually writing a book on this that will be out soon through Dar al-Salam [not the Saudi one].

    Latter today I meet Sh. ‘Isam al-Sari from Libya and asked him the same question and he made an important point that I must admit I failed to clarify: when the Maslaha presents itself whether it is in the form of ‘Urf or some incident, if, due to that, the mufti chooses the marjooh, at that moment and time the marjooh, for that particular case, becomes the Rajih, due to the maslaha and so on. Thus, the ‘Ijma, as mentioned by al-Zarkashi and almost all of the scholars of Usol, is maintained it is just a flipping of places due to the situation at hand.

    I have no problem with you on the issue of Hajjah arriving to the station of darrurah if it is general in nature. I’m aware that there is a jamhour, perhaps sukuti, on that contention.

    Again, I’ve enjoyed this and look forward to both of your corrections and responses.

    SDW

  36. Abu Abdullah says:

    Salaam alaikum

    Akhi al-Kareem, I am here seeking answers and clarifications, and I am not under any illusion that I could offer anything substantial from myself, and any small benefit that may have been accrued from my input into the discussion then this is the blessing that Allah has given as a baraka to the good intentions of those involved

    Imam Suhaib – though you have excused yourself from the discussion, which inshahAllah perhaps it will continue particularly on this concept of fiqh today being divided into 2 camps of azeema and rukhsa, (a dichotomy that there could be real doubts over and these are the thrust of what I have tried to also articulate so far), I would like to reply quickly to what you have mentioned above.

    Without clear conditions and definitions and proofs we can quickly see that this issue (juryan al-amal) is one difficult to talk about and agree upon, as any other issue if left in ghumood –

    for example, among the conditions that are mentioned by Sh Bin Bayyah referring to al-bannani is that it has to be that a daroora has led to the taking of the marjooh rather than the raajeh,

    so – if it is an issue of duroora, then the daroora permits the forbidden in origin, and so we return to the question of exactly what is it that is being discussed? And is it being applied in keeping with its theory?

    I am also not sure how this equates with what has been mentioned to you by the ulama with you, in fact the conditions almost seem contradictory, since urf and maslaha are different to duroora unless one means a maslaha darooriya in which case again it relates to the rule of necessity, but definately it is something which requires exactness in its definition, scope and application to understand what is being said. What would be most helpful would be further explicit references to conditions, definitions etc., preferably to usool that take this into account.

    There are numerous questions open as well which I am still searching for answers for – such as can you only take the marjooh within the madhhab? I am sure there will be difference over it similar to the difference over whether it is permitted to give fatwa from another madhhab, or be a muqallid to another madhhab in some issues.

    Though I am within the shaf’i tradition, I am trying to understand the dynamics here to understand its application by contemporary maliki scholars, so please have patience with me as there could be numerous istilahi differences as well as personal limitations.

    I would refer you to Imam Shatabi – (whom we can inshahAllah bring more into this discussion if it continues) – and his opinion on this issue is quite strict (you can see the abwaab in the section of ijtihad from the issue of discussion of whether Muqallid choose between the words of the Mujtahideen and read on until the discussion regarding the taking by easier of opinions)

    In particular the following is certainly interesting with respect to this issue –
    وربما استجاز هذا بعضهم فى مواطن يدعى فيها الضرورة وإلجاء الحاجة بناء على أن الضرورات تبيح المحظورات فيأخذ عند ذلك بما يوافق الغرض حتى إذا نزلت المسألة على حالة لا ضرورة فيها ولا حاجة إلى الأخذ بالقول المرجوح أو الخارج عن المذهب أخذ فيها بالقول المذهبي أو الراجح فى المذهب فهذا أيضا من ذلك الطراز المتقدم فإن حاصله الأخذ بما يوافق الهوى الحاضر ومحال الضرورات معلومة من الشريعة فإن كانت هذه المسألة منها فصاحب المذهب قد تكفل ببيانها أخذا عن صاحب الشرع فلا حاجة إلى الانتقال عنها وإن لم تكن منها فزعم الزاعم أنها منها خطأ فاحش ودعوى غير مقبولة
    وقد وقع فى نوازل ابن رشد من هذا مسألة نكاح المتعة ويذكر عن الإمام المأزري أنه سئل ما تقول فيما اضطر الناس إليه في هذا الزمان والضرورات تبيح المحظورات من معاملة فقراء أهل البدو فى سنى الجدب إذ يحتاجون إلى الطعام فيشترونه بالدين إلى الحصاد أو الجذاذ فإذا حل الأجل قالوا لغرمائهم ما عندنا إلا الطعام فربما صدقوا فى ذلك فيضطر أرباب الديون إلى أخذه منهم خوفا أن يذهب حقهم فى أيديهم بأكل أو غيره لفقرهم ولاضطرار من كان من أرباب الديون حضريا إلى الرجوع إلى حاضرته ولا حكام بالبادية أيضا مع ما فى المذهب فى ذلك من الرخصة إن لم يكن هنالك شرط ولا عادة وإباحة كثير من فقهاء الأمصار لذلك وغيره من بيوع الآجال خلافا للقول بالذرائع فأجاب إن أردت بما أشرت إليه إباحة أخذ طعام عن ثمن طعام هو جنس مخالف لما اقتضى فهذا ممنوع فى المذهب ولا رخصة فيه عند أهل المذهب كما توهمت قال ولست ممن يحمل الناس على غير المعروف المشهور من مذهب مالك وأصحابه لأن الورع قل بل كاد يعدم والتحفظ على الديانات كذلك وكثرت الشهوات وكثر من يدعي العلم ويتجاسر على الفتوى فيه فلو فتح لهم باب فى مخالفة المذهب لاتسع الخرق على الراقع وهتكوا حجاب هيبة المذهب وهذا من المفسدات التى لا خفاء بها ولكن إذا لم يقدر على أخذ الثمن إلا أن يأخذ طعاما فليأخذه منهم من يبيعه على ملك منفذه إلى الحاضرة ويقبض البائع الثمن ويفعل ذلك بإشهاد من غير تحيل على إظهار ما يجوز فانظر كيف لم يستجز وهو المتفق على إمامته الفتوى بغير مشهور المذهب ولا بغير ما يعرف منه بناء على قاعدة مصلحية ضرورية إذ قل الورع والديانة من كثير ممن ينتصب لبث العلم والفتوى كما تقدم تمثيله فلو فتح لهم هذا الباب لانحلت عرى المذهب بل جميع المذاهب لأن ما وجب للشيء وجب لمثله وظهر أن تلك الضرورة التى ادعيت فى السؤال ليست بضرورة

    But anyway inshahAllah we will await Dr al-Rayyan’s book with anticipation biithnillah

    And please forgive me if i appear to be slow in following up the many references passed along so far

    I would also lastly like to point out – that the conditions surrounding this principle of juryan al amal even if adopted seem very stringent in comparison to any idea of simply giving all the various opinions/ rukhas for people to follow, but inshahAllah maybe this is the next mas’ala for the discussion

    wasalaam

    Abu Abdullah

  37. admin says:

    Asalamu alaykum,

    Looking over Dr. Bin Bayyah’s work it seems that, and I was wanting to ask you about this, you may be understanding his usage of hajjah as used by the scholars of Usol. Sh. Bin Bayyah states that there is also, as you well know, the usage of the word by the fuqaha. The former, according to Bin Bayyah is used to set a long term ruling while the latter is specifc and deals with a specific case. Finally, Sh. ‘Esam, when I asked him for clarification, stated that Bin Bayyah’s understanding is in line with the school on the issue of Hajjah. Perhaps, this, the usage of the fuqaha, is key in helping you grasp the concept?

    Also, I found your charge of ghumud smelling of Shaficentric thoughts. I have found the concept quite simple to grasp and provided more than enough backing for it.

    I hope to meet Sh. Muhammad al-Dido this week and will, God Willing, ask him about Sh. Bin Bayyah’s contention surrounding the daroorah and the hajah. My contentions are based in the school and in no way do I qualify to represent Sh. Bin Bayyah. However, I plan to meet him this month as well and will try to ask him these questions your presented.

    This is my last post, I promise, as I would like to honor what I wrote earlier and feel that we are starting to turn in circles

    SDW

  38. Abul-Hussein says:

    AS

    Abu Abdullah, I hope your well. Just wanted to indicate that the statement

    “the concept of fiqh today being divided into 2 camps of azeema and rukhsa”

    is not a correct representation of what was said. Rather we are talking about fatwa. And this division of fatwa in this manner is in point of fact not my own by rather you can find mention of it in the lessons of Shaikh Ddo on Qa’waid and this has been mentioned by other contemporary scholars as well particularly Shaikh Qaradawi and many others and this is indicated to many time over by the scholars of Azhar of whom a good many following the dominate trend allow for talfiq one of the reasons is to facilitate for the masses who are not trained in the contours of fiqh and also to deal with social and life pressures.

    As far as the marriage example this also is not my example this is the example of Shaikh Ali Jumah and in fact he praised the idea of borrowing from the Shi Imamia the concept of there being no talaq without witnesses. This is the same reasoning which pushed the opinion of Ibn Taymiyah to be taken in talaq that is to prevent social destruction and realize the aims of the shariah. If I had the position of Mufti and someone came to me because he divorced his wife according to the Shafi madhab or any other madhab a person who had three children and has been married for sometime I would be hardpressed to just send him away and watch the family crumble given the pressure people are under today.

    Let us be open and very clear you do not have to agree with what is being said if something is wrong put forward a correction. Herein the idea is that fiqh is living it helps us in life to realize the ultimate life aim and that is worship. This goes beyond Maliki and Shafi fiqh or even Hanafi and Majority usul. What is important is to help us build a strong community and for us to move out of this slump we are in as Muslims.

    Fiqh as represented by each madhab is a marriage between rukhsa and azeema and the conditions governing each.

    This topic could have been dealt with by you referring to the works that were referenced early on.

    As far quoting from referential texts the benefit in that is not too clear to me given the lack of survey approach. It is clear that Imam Haramayn and Ghazali is at the beginning of the discussion on these matters of hajja etc. and the reason the discussion take place in the chapter of qiyas is because the Shafis were forced to deal with the issue of maslaha and maqasid from that angle given they deny maslaha a place in Usul but in practice they use it all the time. This is why quoting from books of Usul is to stay in the realm of theory the more substantial inquiry is to see how the Usul are employed in fiqh and fiqh brings us to the human realm, the life context the question of pertinence then is how well does the fatwa speak to realize the aim of Shariah in case scenarios.

    In any event, a survey approach is more appropriate. That is trace a concept to see how it is used and built upon from early to mid to later day works rather than sporadic quotes. This is in keeping with minhajiyyah. We have moved into too many issues now. Tarjeeh, Maqasid, Following A Weak Opinion, Defining Hajja, Fatwa And Its Relationship To Place And Time, Differences Between Contemporary Scholars With Early Scholars, Maslaha.

    A comment box is not the arena for this. We can talk about one of these topics for hours in fact each can serve as a PhD akhi!

    I take responsibility for what was penned by my hand. And will reiterate there are two trends in fatwa now that which demands ease and that which demands the hukm be followed without looking to hardship or any other factors. And to make the situation worse people are demanding ease without understaning what ease means.

    I will speak with honesty to you. I do not understand what is the aim of these posts if you can read Arabic and have training you have the scholars forget about what we are saying unless you see a mistake. If you feel that there is a mistake made say it in a nice way give a chance for correction if need be. If you disagree no problem let us be clear disagree and move on. Personally, the drawn out discussion is what I intended to avoid early on given the nature of topics and the nature of the net which is so far for me be an arena for poor dialectics.

    My advice is to go to the writing of the scholars in this genre their stuff is plentiful and substantial.

    With Love…

  39. Abu Abdullah says:

    Salaam alaikum

    As a result of the discussion and reading some of the various references provided, I would like to make it clear my central concern on this particular point is not over debating the relevant strength of the opinion, it has become obvious that at a minimum it is a stated part of the later Maliki tradition which was inferred from earlier Maliki thought.

    To restate
    “Though I am within the shaf’i tradition, I am trying to understand the dynamics here to understand its application by contemporary maliki scholars, so please have patience with me as there could be numerous istilahi differences as well as personal limitations.”

    I will also go through more of the material noted by Sh. Bin Bayyah, and some of the additional references you posted as well and will continue to ask those around me

    Abu Abdullah

  40. Abu Abdullah says:

    Salam alaikum Abul Hussein,

    I feel that we are fundamentally different in our approach – and perhaps this is why you have decided not to substantially engage on any of the issues I raised in my previous posts. I will not continue to discuss a number of the issues you have raised that I do actually disagree with, from the issue of manhajiyya to the issue of talfeeq, but I will focus on the main issue alone.

    Regarding what I have seen in error – I have actually followed the manhaj you have asked for – I asked what you meant when you stated that you do not always have to take the stronger opinion, and then I have tried to show that your explanation is unconvincing. This was my point to refer back to the sources I did.

    Talking about consequences – Riba is a case in point – who could imagine the amount of fatawa in contemporary times that permit usury with mortgages etc. and they are so easily given by various ulama across satellite tv stations?

    In these cases pragmatism dictates the whole process of ijtihad, rather than looking to change the fundamental ideas of our community. For example, a common refrain has been that if I gave such and such a fatwa, the person would not follow it so I should give him a fatwa he is willing to follow. How many times have we heard that there are multiple opinions so choose what is best for you?

    The better approach is surely to convince the person of those issues such as rizq, tawakkul, and other key aqeeda concepts that are lacking in our communities, and as these ideas are adopted then they will adopt the stronger ahkaam as well?

    As it is it is as though we look at our brothers and sisters and instead of seeking to improve or raise them we end up merely confirming their current position. We do not change anything, and we have not made our communities more Islamic, rather we simply justify our current behaviour patterns.

    On top of all this, the apparent lack of consistency in application. We have already seen that juryan al-amal has the condition of daroora according to al-bannani, what about when it is being applied today? Do we only give the marjooh when there is a daroora to do so?

    You pointed me to Shatabi earlier – so I hope you don’t mind if I point you back to Shatabi who in summary mentions

    1. That for each issue there is one correct opinion, though differences are permitted and tolerated
    2.That the muqallid is like the mujtahid in that he has to follow an opinion, since the choice of who to follow is like tarjeeh for the mujtahid
    3. If there are multiple opinions – the muqallid cannot just choose what he pleases because this is following his desires
    4. Rather his tarjeeh has to be based on trying to get to the right opinion (not the easiest)
    5. Following the rukhus is wrong
    6. Trying to justify the taking of marjooh by other than real daroora (life and limb issues) is wrong
    7. The concept of taking by the easier of two opinions is also wrong – it goes against the whole concept of takleef
    8. That the opinions of Ulama are not daleel in themselves

    And so on.

    This way of thinking that we can adopt any opinion on the basis that we find it most suitable for our life today (and yet the other stronger opinions are not actually unusable at all just may be a little more difficult but by no means leading to daroora) ultimately opens the door to following the rukhus from each mathhab, and this is something that is destructive to our deen without any doubt. And, wa Allahu Allam, out of this way of thinking odd aberrational movements are unintentionally born, and this is something we are witnessing more and more.

    Please accept my apologies for any offense caused, and please also accept my excuses that I disengage completely from the discussion as you have done since we have all said our piece, and it was not my intention at all to put brothers on the defensive and I pray that no ill feeling has been caused.

    I pray that there is some good to be found in what I have said, and that some reflection upon it will be done, and I have learnt from this discussion and will continue to reflect upon what has been said.

    Wasalam wa fee Amanillah

    Abu Abdullah

  41. admin says:

    Asalamu alaykum,

    Brothers, I was worried that things might get heated. Aba Abdillah I’m very sorry as my Shaficentric phrase was only meant to soften the hearts. I have truly benefited from this, but feel that you are unable to understand many concepts and perhaps should visit with the scholars, sit with them and engage them in this discussion? Let’s pull back, take a deep breath and remain committed to our brotherhood.

    SDW

  42. Abu Abdullah says:

    salam

    Forgive my return – just a very important correction

    When i wrote
    “This way of thinking that we can adopt any opinion on the basis that we find it most suitable for our life today (and yet the other stronger opinions are not actually unusable at all just may be a little more difficult but by no means leading to daroora)”

    it would have been more accurate and clear if it read
    “that we find to be the most easy for our life today (even though they are marjooh opinions)”
    and not
    “most suitable” – since the raajeh hukm is always the most suitable even if we cannot comprehend it in a particular time and place since it came for the islah of the dunya and the akhira together.

    Other than that nothing except to say I did not take any offence to the shafi centric comment,

    InshahAllah i wish each of us rereads the complete thread with an open mind, and if there is benefit in it so be it.

    I have apparantly not been able to express myself with the clarity required, there are differences in these issues between the roles and obligations of the muqallid and the mufti and so on that have not been put down, and rereading my words i can see that they can perhaps be read with more than 1 interpretation, so I will stick by my decision not to further engage wa jazakAllahukhairun

    wasalam

    Abu Abdullah

  43. Haq says:

    Sh Suhaib, When you meet Sh Bin Bayyah, please if it will not be too difficult, give salaam to him from “Muhammad Haq” London and tell him to make dua for me and my family.

    Thanks in advance

  44. Abul-Hussein says:

    AS

    Abu Abdullah, personally I requested to let things grow naturally a comment forum can not encompass the topics raised. We moved from ac claim to want to understand and clarification to a declaration on the causes of “aberrations” (deviancy). This forum is not for this the possibility for misunderstanding is too great. Truly we are in agreement in regard to the need of personal piety and cautiousness hopefully I can be of that calibre. There are some points that need to be made and this will be the end for me you have declared your position.

    1.) there is a difference between tasaahil (liberalism) and tayseer (facility). (Refer to Shaikh ibn Bayyah’s works)
    2.) Piety is not legislated it is cultivated
    3.) Da’wah is founded upon graduality this is characteristic of Islamic legislation as reiterated in the books of Tarikh at Tashriyyah
    4.) Allah (swt) wants to facilitate things for you not to make matters difficult as is known from the Qur’an
    5.) The Prophet Muhammad (saw) chose the easier of two matters when faced with a decision or course of action
    6.) talfiq for the masses is a position of al Azhar ash Sharif
    7.) the way of fatwa is ease as is the practice of the Ulema of Azhar

    Shaikh al Islam Ibn Ashour said:

    …I have found that the jurists have omitted certain aspects of rukhsa. (license) Of course they are agreed that rukhsa consists in changing an act prescribed for an individual or a community from strictness and difficulty to ease and indulgence owing to some compelling circumstances requiring the Shariah to forgo its purpose of realizing a benefit or removing an evil.

    The relaxation is achieved by tolerating an evil act that is originally forbidden. They illustrated this meaning of license by the permission for the person under need to eat carrion. In this connection, Shatibi has shown that while Azimah pertains to the principle of the original obligation of taklif as such, rikhsah emanates from the rule of attenuation (takhfif) and that both constitute categorical general and permanent rules of Shariah.

    I have noticed though that the jursits have discussed license and illustrated it only with regard to individuals under circumstances of need. Nevertheless, when we examine the topic carefully and find that license (rukhsa) stems from hardship (haraj) and need (dururah) then clearly we should consider it at a both an individual and community level.


    Shaikh Al Islam Ibn Ashour (r) quotes Allamah Imam Mujtahid Izz ad Din Abdus Salaam ash Shafi (r) under the same topic he said:

    ” if the unlawful overwhelms the world to the extend that nothing lawful can be found, it is permissible to use of it what will satisfy people’s needs. That rukhsa however must not be restricted to the level of necessity, for this would lead to the weakening of the Muslims and the domination of infidels and rebellious people over the lands of Islam. It would also cause the collapse of crafts (hiraf) and business and business (sana’a) indispensable to people’s welfare.. However people must not indulge in the use of unlawful money in the way they would with what is lawful they must rather limit themselves to what is really needed…”

    This is the situation of that has been considered by the Mujtahid scholars in their various dispositions to derive the Shariah rulings with varying degrees of success. In fact, we might find the same jurist approximated to truth or moving away from it in dealing with this issue owing to various factors such as the conflict of evidences etc.”

    (Maqasid ash Shariah, Tahir Ibn Ashour)

    Usul al Fiqh without Maqasid ash Shariah misses the point and fatwa without looking at the condition of people is legal gymnastics that has no concern for the aims of Shariah and empowering the Ummah.

  45. abdurrahman says:

    Subhanallah, I would have liked to finish reading the comments before posting, but the thread is quite lengthy, and I only got about a quarter of the way through.

    I just wanted to say to Imam Suhaib and Ustadh Abul-Hussein: jazakumullahu khairan for sharing your wisdom and inspiration with us. May Allah (swt) preserve you both and shower you with mercy, and make you both a continued source of benefit to our communities. Ameen!

    And may Allah preserve our Shaikh Abdullah bin Bayyah and Shaikh Yusuf al-Qaradawi and may He bless the ummah with many more fuqaha like them. Ameen!

    I would also like to thank Sidi Siraaj for sharing a useful alternative course of action. May Allah reward and protect you. Ameen!

  46. I would also like to thank Sidi Siraaj for sharing a useful alternative course of action. May Allah reward and protect you. Ameen!

    Ameen to your du’aas, and I wish the same and better for you as well akhi. Throughout my time living in America, and learning about Islam through various channels, one question always burns brightly for me – will Allah subhaana wa ta’aala be pleased with this action of mine, or will it earn His Anger?

    It’s a question that has taught me the value of tawakkul, creative thinking / problem solving, and aiming for higher standards. It’s also taught me that nothing worth achieving comes easily, whether it is good health, good familial relationships, achievement in one’s career, acquiring Islamic knowledge, and so forth.

    Last year, I sat with the director of Shariah Academy, and the shaykh gave me some interesting back story on an issue might know something about – the Dell factory workers who were fired when caught praying maghrib salaah. This shaykh asked those men to give power of attorney to him and let him handle their affair.

    It’s a beautiful and inspirational story, but the bottom line was that at the end of it, he convinced Dell to:

    1. Pay $50,000 to each family for damages and rehire them.
    2. Provide Islamic sensitivity training to both current and new employees, so they would all receive a manual on Islam.
    3. Pay $600,000 to help complete construction on an Islamic school started in the community
    4. Give specific time off for Muslims to pray when the time for prayer came.

    Alhamdulillaah, we don’t live in an oppressive dictatorship that prevents us from our worship – we have MANY options available to solve the problems that appear to confound our ability to practice Islam as we see correct.

    When we have self-respect for ourselves and our own beliefs, our circles of influence will grow, and we will be the pioneers setting the stage for future generations to be recognized and accepted for our manner and way of life, insha’allah. That’s my kinda daw’ah ;)

    Siraaj

  47. Suhaib Webb says:

    Asalamu alaykum,

    With all respect and love Abu ‘Abdullah, you have gravely mis-represented al-Shatibi’s texts. Secondly, you have failed to address the concept of al-Hajah al-Khasa and its role in allowing the mufti to use a marjoh opinion in the face of a clear maslaha, ‘urf or a Hajah. I’m not seeking to draw this out. But hints of accusations like those above tend to take what, initially seemed as a pleasent conversation, into another direction. I’m not sure where you’ve studied, but such behavior and intolerance is indicative of those who have studied in Sham. I pray that you, just because you can’t understand something, will give your brothers and the scholars the benefit of the doubt and assume, perhaps, that you don’t know what you are talking about and need to study more.

    SDW

  48. Abu Abdullah says:

    Brother – I pray that you are well

    Until now I have not received either a private nor public response to how I have “grossly misrepresented” Imam al-Shatabi, in which case please review the following relating to the points that I summarised, with relevant text from the source.

    1. That for each issue there is one correct opinion, though differences are permitted and tolerated
    Please refer to the third issue in the section of ijtihad in the 4th volume, where there is a long discussion of this

    2.That the muqallid is like the mujtahid in that he has to follow an opinion, since the choice of who to follow is like tarjeeh for the mujtahid
    وأما اختلاف العلماء بالنسبة إلى المقلدين فكذلك أيضا لا فرق بين مصادفة المجتهد الدليل ومصادفة العامي المفتي فتعارض الفتويين عليه كتعارض الدليلين على المجتهد فكما أن المجتهد لا يجوز في حقه اتباع الدليلين معا ولا اتباع أحدهما
    من غير اجتهاد ولا ترجيح كذلك لا يجوز للعامي اتباع المفتيين معا ولا أحدهما من غير اجتهاد ولا ترجيح وقول من قال إذا تعارضا عليه تخير غير صحيح

    3. If there are multiple opinions – the muqallid cannot just choose what he pleases because this is following his desires
    ليس للمقلد أن يتخير في الخلاف كما إذا اختلف المجتهدون على قولين فوردت كذلك على المقلد فقد يعد بعض الناس القولين بالنسبة إليه مخيرا فيهما كما يخير في خصال الكفارة فيتبع هواه وما يوافق غرضه دون ما يخالفه وربما استظهر على ذلك بكلام بعض المفتين المتأخرين وقواه بما روى من قوله عليه الصلاة و السلام أصحابي كالنجوم وقد مر الجواب عنه وإن صح فهو معمول به فيما إذا ذهب المقلد عفوا فاستفتى صحابيا أو غيره فقلده فيما أفتاه به فيما له أو عليه وأما إذا تعارض عنده قولا مفتيين فالحق أن يقال ليس بداخل تحت ظاهر الحديث لأن كل واحد منهما متبع لدليل عنده يقتضي ضد ما يقتضيه دليل صاحبه فهما صاحبا دليلين متضادين فاتباع أحدهما بالهوى اتباع للهوى وقد ما مر فيه فليس إلا الترجيح بالأعلمية وغيرها وأيضا فالمجتهدان بالنسبة إلى العامي كالدليلين بالنسبة إلى المجتهد فكما يجب على المجتهد الترجيح أو التوقف كذلك المقلد ولو جاز تحكيم التشهي والأغراض في مثل هذا لجاز للحاكم

    4. Rather his tarjeeh has to be based on trying to get to the right opinion (not the easiest)
    فإن في مسائل الخلاف ضابطا قرآنيا ينفى اتباع الهوى جملة وهو قوله تعالى فإن تنازعتم في شيء فردوه إلى الله والرسول وهذا المقلد قد تنازع في مسألته مجتهدان فوجب ردها إلى الله والرسول وهو الرجوع إلى الأدلة الشرعية وهو أبعد من متابعة الهوى والشهوة فإختياره أحد المذهبين بالهوى والشهوة مضاد للرجوع إلى الله والرسول وهذه الآية نزلت على سبب فيمن اتبع هواه بالرجوع إلى حكم الطاغوت ولذلك أعقبها بقوله ألم تر إلى الذين يزعمون أنهم آمنوا بما أنزل إليك الآية

    5. Following the rukhus is wrong (NOTE – this is not about the rukhsa sharaiyya but rather following the different rukhus of the madhahib)
    واعترض بعض المتأخرين على من منع من تتبع رخص المذاهب وأنه إنما يجوز الانتقال إلى مذهب بكماله فقال إن أراد المانع ما هو على خلاف الأمور الأربعة التي ينقض فيها قضاء القاضي فمسلم وإن أراد ما فيه توسعت على المكلف فممنوع إن لم يكن على خلاف ذلك بل قوله عليه الصلاة و السلام بعثت بالحنيفية السمحة يقتضي جواز ذلك لأنه نوع من اللطف بالعبد والشريعة لم ترد بقصد مشاق العباد بل بتحصيل المصالح وأنت تعلم بما تقدم ما فى هذا الكلام لان الحنيفية السمحة إنما أتى فيها السماح مقيدا بما هو جار على أصولها وليس تتبع الرخص ولا اختيار الأقوال بالتشهي بثابت من أصولها فما قاله عين الدعوى ثم نقول تتبع الرخص ميل مع أهواء النفوس والشرع جاء بالنهي عن اتباع الهوى فهذا مضاد لذلك الأصل المتفق عليه ومضاد أيضا لقوله تعالى فإن تنازعتم فى شيء فردوه إلى الله والرسول وموضع الخلاف موضع تنازع فلا يصح أن يرد إلى أهواء النفوس وإنما يرد إلى الشريعة وهى تبين الراجح من القولين فيجب اتباعه لا الموافق للغرض

    6. Trying to justify the taking of marjooh by other than real daroora (life and limb issues) is wrong
    – Part of what was written by Shatabi regarding this point has been posted previously so there is no need to repost

    7. The concept of taking by the easier of two opinions is also wrong – it goes against the whole concept of takleef
    In the discussion of the issue –
    هل يجب الأخذ بأخف القولين أم بأثقلهما
    In which he mentions the evidences used for taking the easier
    واستدل لمن قال بالأخف بقوله تعالى يريد الله بكم اليسر الآية وقوله وما جعل عليكم فى الدين من حرج وقوله عليه الصلاة و السلام لا ضرر ولا ضرار وقوله بعثت بالحنيفية السمحة وكل ذلك ينافى شرع الشاق الثقيل ومن جهة القياس أن الله غني كريم والعبد محتاج فقير وإذا وقع التعارض بين الجانبين كان الحمل على جانب الغنى الأولى
    And then rebuts this with
    والجواب عن هذا ما تقدم وهو أيضا مؤد إلى إيجاب إسقاط التكليف جملة فإن التكاليف كلها شاقة ثقيلة ولذلك سميت تكليفا من الكلفة وهى المشقة فإذا كانت المشقة حيث لحقت فى التكليف تقتضي الرفع بهذه الدلائل لزم ذلك فى الطهارات والصلوات والزكوات والحج والجهاد وغير ذلك ولا يقف عند حد إلا إذا لم يبق على العبد تكليف وهذا محال فما أدى إليه مثله فإن رفع الشريعة مع فرض وضعها محال ثم قال المنتصر لهذا الرأي إنه يرجع حاصله إلى أن الأصل فى الملاذ الإذن وفى المضار الحرمة وهو أصل قرره فى موضع آخر وقد تقدم التنبيه على ما فيه فى كتاب المقاصد وإذا حكمنا ذلك الأصل هنا لزم منه أن الأصل رفع التكليف بعد وضعه على المكلف وهذا كله إنما جره عدم الالتفات إلى ما تقدم

    8. That the opinions of Ulama are not daleel in themselves
    I think this is apparant and I hope you will agree that this is not “controversial”

    If there is any confusion regarding what I have taken, please seek clarification from those you have access to, and if there is anything you wish to raise from corrections regarding what is mentioned above please do so in detail, so others would be able to benefit from your criticism rather than simply dismissing what you disagree with as ignorance or “gross misrepresentation”

    I have taken from the source in this case, but if you would like to refer to other work Sh.Fa’oor’s book on maqasid is highly recommended.

    Fee Amanillah

    Wasalam
    Abu Abdullah

  49. Suhaib Webb says:

    Asalamu alaykum,

    Aba Abdulillah

    I hope you are well, your faith is strong and your connection with Allah is like Iron.

    I don’t think anyone here agreed to continue this discussion with you off-line. However, I feel that you are not really understanding a number of things and hope to clarify.

    “If there are multiple opinions – the muqallid cannot just choose what he pleases because this is following his desires
    ليس للمقلد أن يتخير في الخلاف كما إذا ا.”

    Our discussion has never been about a Muqalid’s right to do so as there is a ‘Ijma on what is stated above. Our discussion is respective of those who are Mujtahids. Thus, my dear brother, let us make that very clear. What Sh. Bin Bayyah and others are talking about is for the one qualified, not for the ‘ami nor the Muqalid. Thus, are you contending that one who is qualified does not have the right to issue a fatwa based on the Maslaha that is presented before him and take the Marjoohd opinion?

    I asked Sh. ‘Imad ‘Ifaat who is on the Majlis al-Fatwa in Egypt, one of Dr. ‘Ali Guma’s top, older, students and a Mufit in the Shafi school about your contention. He said, “This is wrong. The Mufti has the right to go with the marjoh in the presence of a recognized Maslaha, ‘Urf or other variable recognized by the Shari’ah.”

    2. I asked al-Allamah Sh. Muhammad al-Hassan Walid al-Dido al-Shanqit, a person who has memorized the Sita, the Musnad, al-Muwwata and is one of the greatest living scholars today about Jariyan al-‘Amal, “Yes it is in the school and it is allowable for the Mufti to take the Marjoh.” Then I asked him what about the other schools? “Yes, but they have different terms for it, the Hanafis……………….the Shafi’s, see al-Insaf of al-Marwudi and the Hanbalis. They just use a different terms.”

    Thus, akhi, why would we want to engage in a debate with you on this issue after asking some of the greatest living scholars alive today? Is there really any benefit?

    My point about misunderstanding the Muwafaqat is that it is not a book to be read alone. I’m assuming that you read it with a scholar, however I feel more comfortable with the scholars I’ve consulted on this issue then I do with your research. At the same time, remove the word Muqalid in all of Shatibi’s quotes and replace it with Mujtahid or Mufti and see if the answer to the equation is the same? For that reason I was concerned that you had misunderstood the text, or I failed to frame my arguments clearly. I certainly appreciate you taking the time to stop by, comment, maintains such adab and hope you will contribute more.

    SDW

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