Without Maqasid ash-Shar’iah Fiqh Is Not Fiqh And The Scholar Of Fiqh Is Not A Scholar Of Fiqh By Dr. Ahmad Raysuni (h)


“Upon a survey of Islamic jurisprudence (al-fiqh al-islami), we find various tendencies, which have entrenched themselves. Of these tendencies, we find a tendency inclined toward an exaggeration in stringency by expanding the sphere of the prohibited (haram) under the claim of preventing wrongdoing. This effect is achieved by [constant] recourse to the legal mechanism of “blocking the means.” The same effect is realized under the rubric of following a path of “precaution in action” (ihtiyaat) when taking a course in fiqh and by referral to other legal mechanisms which result in restricting what shar’iah has made allowance for. Dr. Ahmad Raysuni (h) called for a re-evaluation of the use of various legal mechanism which restrict the permissible and the effects of this current in juridical activity to ensure that “the Higher Aims of the Shar’iah” (al-maqasid al-aliyyah li-ash shar’iah) are being realized and undue hardship is eliminated.

Maqasid ash Shar’iah is to Shar’iah what the soul is to the body

-Dr. Ahmad Raysuni (h)

Commentary Of Abul-Hussein:

The juridical practice of widening, expanding the sphere of the prohibited (haram) by incorporating more and more action under the category of haram or by taking to the path of precaution (ihtiyaat) by precluding oneself for permissible action is a practice affected by time, place, need, and custom (context) and spiritual pursuit and station. In other terms, restricting the sphere of permissible action by referring to ascetic principles (sufism) that influence juridical preferences and ethos or as a means to curve corruption narrows the sphere of permissibility. This course of action that we find in Islamic fiqh limits what was essentially an area in which the law demonstrates flexibility.

Therefore, a re-evaluation of the way scholars have exercised their juridical judgment is due given the contextual circumstances which weighed heavily in the application of juridical judgment. It may be the case that the contemporary scholar finds that the judgment made of a scholar in the past or in the present to expand the field of the prohibited by way of one means or the other does nothing more that present and instigate unsubstantiated hardship.

So it is necessary to survey the way the field of the prohibited has been expanded by the scholars of fiqh in order to ensure that “the Aims of the Shar’iah” (maqasid ash-shar’iah) are being realized with the change of time, place and custom and need and by juridical activity. This in truth is to understand evidence (dalil) in its totality that is to understand not only the textual basis for an opinion but also the way it is understood and treated in Usul al-Fiqh, and Fiqh and Hadith in light of Maqasid ash Shar’iah.

What may be the case today is that a student follows a fiqh opinion based on the principle of “blocking the means” or is rooted in a tendency to asceticism. As a result, when we return to the foundational spirit of fiqh and Shar’iah we rediscover a degree of flexibility which is absent before us and we are deprived of due to the use of the mechanisms mentioned previously. What is the case is that abandoning the approach of imposed stringency due to understanding the way a proof is handled and read, on occasion, may be in fact a return to what was originally permissible and allowed for by Islamic law and to follow a course that is more in sync with the law and its spirit. Without doubt this effort to understand and apply fiqh in light of maqasid ash shar’iah is the provence of the qualifed and God-fearing.

Wa Allahu Al’am Wa Huwa al- Haqq Tabaraka Wa Ta’la

Adapted And Translated And Commented On By: Abul-Hussein

Source: Talk Given By Dr. Ahmad Raysuni (h)

Produced By: www.altranslators.com

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9 Comments

  1. Abu Majeed says:

    Ma Sha Allah Ya Ustadhana,

    This is something I have previously struggled with in my studies. We all know the famous hadiths which form the great principles of taqwa which you mentioned and similarly al-khurooj minal-ikhtilaaf mustahab (leaving the questionable in issue’s of disagreement is recommended in other words sticking ot the thing farthest from haram). So I came to understand that the reason it is not obligatory. It is because of our great tradition of scholarship and the greater understanding of the principles of jurisprudence as outlined in this important commentary by Abul-Hussein. What I found is that if a Mujtahid becomes certain of the permissibility of something and he is contradicting others then it is up to Allah to judge him and he (the mujtahid) holds that responsibility of speaking on Allah’s behalf. Those commoners who don’t understand istnbaat that traditionally follow (taqleed) that shaikh are justified in doing so as per the meaning of the famous ayah “Ask those who know if you don’t”. On the other hand a student of knowledge who is well grounded in the language, principles of fiqh and understands the istinbaat or how that mujtahid arrived at that opinion, then it is an issue of choice. In this case he will follow what he believes to be best according to the Kitaab, Sunnah, and proper istinbaat. If he is unsure then he follows that which is safest thus taking precaution (Al-Ahwat). According to many scholars they are very tough on themselves, but try to find room in the texts for their followers. Among the Hanabliah the only one’s I can think agreed with this is Shaikhul-Islam or Ibn Qudama. The rest follow and teach the same which they have become sure of and always lean towards precaution and preventing the means to evil. Wallahu a’lam

  2. Haq says:

    “On the other hand a student of knowledge who is well grounded in the language, principles of fiqh and understands the istinbaat or how that mujtahid arrived at that opinion, then it is an issue of choice”

    I dont now about others but I always have doubts regarding this. The question of whether considering oneself “able” to decifer the opinions of the scholars sometimes crosses over to the issue of pride. I sometimes think even though i studied Shariah though not a scholar, after finding another opinion stronger outside the madhab I have hesitation in acting upon this; is it from ones pride that he considers himself able to do this or is it just a matter of accepting facts…?

    • Abu Majeed says:

      ASAK,

      Akhi Haqq it is insha Allah not an issue of pride. When you have studied a madhhab by it’s ahkaam, usool, and qawa’id then you have a strong base. Although you may not be a mufti you now have the tools to understand adillah. Insha Allah it is a matter to submitting to that which you believe is Haqq, but sticking to your base when in doubt. Now if you do go out because the evidence is clear to you you can not teach that as the “right opinion”, but as that which you follow according to your knowledge. Many Sahabah who were not “scholars did as such.

      It is true many have read a few books and claimed knowledge of adillah and are mistaken. Our Ummah has accepted 4 madhhabs for 12 centuries and there is the tradition of chain of narrators which give these opinions tawatur, so according to a great Hanbali shaikh here regardless of what books you read or what degree you have, if you aren’t part of this tradition then your understanding of adillah will always come up short. For this reason he has 3 men with PHd’s who are professors in kulliyat as-shari’ah here who come to his lessons twice a week. Sadly this tradition is fading into this unfounded comparitive religion approach which is really just reading books and getting a degree from another guy who read the book.

  3. Suhaib Webb says:

    Asalamu alaykum,

    I agree with Haq. I wonder how great scholars strike that balance? Sh. Ali Guma says that one should ask his teachers if he is qualified for ifta. And that, according to him, is one of the most foul proof methods. Self delusion is a fitna that frightens even the wisest of men. I feel safer sticking with the opinions of my school and asking the scholars about complicated issues that require probing.

    SDW

  4. Suhaib Webb says:

    Asalamu alaykum,

    I was blessed to meet Imam al-Bukhari al-Deobandi today in the U.K. We discussed a number of issues related to some contemporary issues and got to talking about his favorite subject: [of course with a name like that!] hadith. He mentioned a number of important points, that Allah willing, I will try and post latter. However, he said, ‘this knowledge is taken from people. Many have studied ifta, but are not muftis. Reason being, they did not sit with the people of law and train.’ I thought about Haq’s post, what I’ve heard from my teachers and humbly state that, perhaps, the best way is to interact with the people of knowledge, read in abundance and ask them when you’re ready.

    SDW

  5. Abul-Hussein says:

    AS

    Hope all are well. It is funny this issue comes up. It must be one of the most hardest issue for a student of knowledge to confront the question: “When am I ready?”

    As far Ifta, Allamah Bin Bayyah (r) in the masterpiece: The Craft Of Fatwa And Fiqh Of Minorities holds we should train with the fatwaa of the people of Ifta before venturing off. And what was said above regarding training with people should qualify this statement.

    There was a Hanbali scholar who read Mughni 100 times before he set off to speak in fatwa. Now this is a sign of cautiousness when speaking in the name of Allah.

    Shaikh Ahmad Sheleibak (my teacher and that of Abu Majeed) who was a source of fatwa in the States communicated to me that fatwa is matter of practice. Shaikh Taha Jabir made the claim we ought try to make ijithad and what is the issue if we make a mistake. Now we ought qualify these statements by holding this activity should be restricted to the circle of among scholars and students and not involve the people. Of the greatest things that makes me love the scholars of Deoband (h) is that they are clear on rank and file. I read the day before yesterday that Imam Ibn Rushd (r) (author of Bidayah al Mujtahid) was qualified for ijtihad but pulled away from engaging it out of humility.

    Students of knowledge have caused a lot of problems in recent times by speaking before ripe. May Allah protect us all especially me. Personally, I am not enthusiastic about what I see in myself or other students of knowledge. We are struggling to learn and to be honest the Scholars who are willing to let you accompany them and who are possessed of sound knowledge and grounding are few. So we have to be brave but we have to be very cautious.

    The best thing we can do is make associations with each other so we can work out ideas while interacting within a scholarly circle. Ijtihad and fatwa is no toy. For this reason following fiqh councils and contemporary scholars appears important reason being we can imitate living scholars and learn how they operate in the contemporary world.

    Personally, I have in my possession a respectable size library and audio lectures from respectable scholars but this means little I rather sit with scholars even if only for an hour a week than spend that researching on my own. Many a time a scholar has answered a question with one word that has taken a student days to research on and the student in the end did not come close to understanding. This is said in no way to kill aspiration but we have to be honest the way of scholarship is that of companionship.

    What hurts most and brings tears to the eyes is that we Sunnis are loosing a connection with scholars. How many years did Imam Abu Hanifa (r) spend with Hammad and then he broke with him only to return.

    We should attempt to work with proofs in scholarly circles this is the test. May Allah grant us access and acceptance.

    AstagfirUllah

  6. Haq says:

    Salaam All
    1. The notion that one can hold an opinion contrary to the Madhab, but is not necessarily qualified to publish it or teach. How does this work practically?

    From experience teaching the basics of Fiqh from a text. Now for example the other day, the author of the Book was saying that a women’s voice is part of her Awrah. I had already looked into this issue a while ago and after weighing up the evidences, this view seemed to lack strong backing as well as being very impractical and in a sense misused in our community by men. So I strongly believe that their voice is not awrah, yes they should not speak so as to give the wrong impression, but there is nothing wrong in speaking politely.
    Now that I hold this view, how can I teach that it is Awrah? That will be teaching something I do not believe in. It is also something I would not want to do since these opinions have effects on the way people think, and the way people think affects the way they behave.

    Also, I understand that one may cling to the Madhab is he is training to be a scholar, but what about teaching the public who learn for practical use? How does “Madhabul Aami Madhabu Muftihi” apply here? ( I am not saying I am a Mufti, but scholars from the past up till today hold that womens voice is not Awrah, hence teaching them this will still be sticking to this maxim)
    By the way, who is the first person to utter this maxim?
    2. Shaykh Suhaib and Abul Hussein when you say Ifta – you also include what I mentioned right? (my question was more related to doing Tarjeeh rather than issuing Fatawa)
    3. Regarding the issue of madhabs, I hope no one misunderstood me. I was not implying that I only trust the Madhab I studied but rather since this is the default for me, departing from this BASED UPON MY RESEARCH is something I need to be careful of.
    4. Would everyone agree that between the Ulama (The “Khawaas”) and the Awwaam there is a grey area – Students of Knowledge?
    5. By the way, Imam Al Bukhari Ad Deobandi – Whats his full name?

    Thanks to all for your wise helpful replies, May Allah reward you all abundantly…

    • Abu Majeed says:

      Akhil-aziz Br. Haqq salaamullahi alaik,

      I feel comfortable exchanging ideas with you because you seem to have tawfeeq to seek knowledge not just butt heads with opinions. Thus your name is on point. May Allah preserve you.

      I’ve probably been studying less than you, but since you opened a question I feel I can shed some light upon here goes. Once you have grasped Arabic thoroughly alfiyyat ibn malik level and have a good grasp of the balaghah of the Qur’an and Sunnah in general and have been guided by mujtahideen in the other sciences related to Fiqh preferably upon a given madhhab, I would say this is at least five years of full-time studies or ten years of part time studies now you are ready to worship Allah as a Faqeeh, but not a Mujtahid. Believe it or not you are now a source of knowledge and above basic muqallid state and have become a reference for knowledge for commoners. Upon being questoned on a given matter you now should give the opinions which you know of from the madhahib respecting them all equally and your tarjeeh (which is advice from a knowledgable person and not a legal ruling) goes to that which you follow since that is what is most corrrect to you. So you see the person who takes your advice is not following you and you hold no resonsibility of being right or wrong since in a more broad spectrum you are still following another opinion and you have given the questioner a reference of opinions and have informed him of that which you follow.

      Regarding the issue of going against your madhab. If you are sure of it according to the ijtihad of another then you should go with what you are sure of, but that doesn’t mean you shouldn’t teach that opinion you don’t follow from your madhhab because it is an established opinion and you are not on the level to judge it. You may say this shaikh said about it this or that. So for example, I am Hanbali and have realized in the last three years that the madhabs are no joke and are not open for dismissal as some of our zealous brothers who in the end are muqallidoon to a new madhhab which is mostly foreign to the tradition of ahle sunnah wal-Jama’ah would have us believe.

      So for example I have come to be sure after long re-research that niqaab and gloves are not obligatory. But, since I have learned it from it’s source, I can easily convince a knowledgable, but not thoroughly trained Muslim of it’s obligation. Many people dismiss this opinion without knowing the full ijtihad behind it. So if asked about it I will state the opinions I know that it being the official Hanbali opinion and a that of a few Hanafi and Shafi’ii jurists who settled upon that citing prevelant fitnah as the main oligating factor. On the hand that which I ascribe to is the most prevelant opinion is the Jumhoor which is that a woman’s body is awrah but that she is not obliged to cover her face or hands.

      If someone asked me this in America, I would add that the opinion of obligation loses more weight according to the local ‘urf/circumstances. On the other hand I would encourage a sister in the Muslim world towards Niqab and push the issue with proof since it is closer to Haya’ and Taqwa and farther from opening the door to sin.

      Wallahu ta’la a’lam

      • Haq says:

        Wassalam Br Abul Majeed
        All Tawfeeq is from Allah, May Allah hide my defects…

        Shukran for the advice – Its very easy if you feel very pasionatly about an issue to forget to appreciate the “other side”. I think everyone needs to be on guard against becoming too engrossed in the particulars such that you lose sight of the universals.

        Peace…

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