Protected: The Relation Between Awrah & The Obligation To Veil The Face According To The Maliki School

This content is password protected. To view it please enter your password below:

Is Islam a violent religion?

After every terrorist attack, a question is always on the mind of millions of people, Is Islam a violent religion?

If we look at the military expeditions (ghazawat) in which the Prophet Muhammad—peace and blessings be upon him—took part in during the last two decades of his blessed life (27 being the largest number that has been narrated and fighting occurred in only 9 of them) then we will see that only 1,018 people were killed: 759 of them were non-Muslims and 259 were Muslims.

Before dispatching the military forces, Caliph Abu Bakr had the following commands for his army:

  • Do not commit treachery or deviate from the right path.
  • You must not mutilate dead bodies.
  • Neither kill a child, nor a woman, nor an aged man.
  • Bring no harm to the trees, nor burn them with fire, especially those which are fruitful.
  • Slay not any of the enemy’s flock, save for your food.
  • You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

So, is Islam a violent religion? Well, let’s drop the apologetic tone and be clear about what Islam does say: Islam does not prohibit war, but it has regulated war. It has set down clear guidelines as to when war is right:

  • To defend and protect.
  • Collective defence-to defend the Muslim lands when attacked by other nations.
  • To seek armed peace, where the two armies would meet before every battle and have peace talks.

How many people were killed in WWI? How many people were killed in WWII? How many people have been killed in Kashmir, Afghanistan, Iraq, Levant, north Africa and several other places? Did Islam cause all of that? If Islam caused all of that, then were the Islamic regulations followed? Hundreds of thousands of Muslims were killed during the WW fighting for the British Empire. And 4-million have been killed so far in the US-NATO wars, wars with no regulations and clearly no accountability.

In Islamic polity, it is upon the Muslims to protect Muslims, as well as non-Muslims, from all external threats. The ruler and those in authority are bound to look after the interests of all subjects using all the resources at their command. The famous Maliki scholar, Imam al-Qarafi, quotes the statement of Ibn Hazm from his book Maratib al-Ijma’:

If enemies at war come to our lands aiming at a certain dhimmi (non-Muslim who lives under Islamic governance and enjoys the rights enshrined in the contract he makes under the Shariah), it is essential for us that we—Muslims—come out to fight the enemies with all our might and weapons since the dhimmi is under the protection of Allah and His Messenger. If we did anything less than this, it means we have failed in our agreement for protection.

The main emphasis of Shariah is the sanctity of the concept of due process to guarantee the life, liberty, property and honour of every human being. Therefore, Shariah has justly regulated the conduct of the believers in this world. It has sanctioned the private as well as the society’s public conduct.

Allah says in the Qur’an

“There is no coercion into the religion. Right guidance has become clearly distinct form error.” [Surah al-Baqarah 2:255]

Ibn Juzayy al-Kalbi comments on the above verse:

“There is no coercion into the religion” means that the religion of Islam is at the furthest limit of clarity with the most obvious proofs of its authenticity, such that there is no need to coerce anyone to enter into it, but on the contrary every person possessing a sound intellect will enter into it voluntarily without coercion, and this is shown by His saying, “Right guidance has become clearly distinct from error,” i.e. it has become clear that Islam is right guidance and disbelief is error so that after this clarity there is no need for coercion.
[At-Tashil li’Ulum at-Tanzil, passage translated by Abdassamad Clarke]

Maliki School: The Timbukti Syllabus

The Timbukti syllabus is an old method of teaching; it was the exact method of teaching adopted by scholars in Medina before and after Imam Malik: A student reads before the scholar, just like children read to the teacher, and if he makes a mistake, the teacher corrects him. The teacher interprets and explains the sacred texts to the student. The order that is followed in teaching the series of books of jurisprudence (fiqh)—according to the Maliki school—differs from place to place and from one school to another. However, the most common order is as follows:

  1. Qawāʿid aṣ-Ṣalāh (or Kawaʿidi) is a treatise of about thirty pages by an unknown author. It concerns the principles of prayer and articles of faith.
  2. Mukhtaṣar al-Akhḍarī by Abū Zaid ʿAbdur-Raḥmān al-Akhḍarī, which is an introduction to Islamic jurisprudence (fiqh) with emphasis on purification of the heart (taṣawwuf), ritual purity (tahārah) and prayer (ṣalāh).
  3. Al-ʿAshmāwiyyah by ʿAbd al-Bārī al-ʿAshmāwī ar-Rifāʿī, which is an introductory text that covers ritual purity (tahārah), prayer (ṣalāh) and fasting (ṣawm). It is studied alongside:
  4. Manẓūmah al-Qurṭubī fiʾl-ʿIbādāt by Yaḥyā al-Qurṭubī, which is another introductory text covering the five pillars of Islam: creed (ʿaqīdah), prayer (ṣalāh), fasting (ṣawm), alms (zakāh) and pilgrimage (ḥajj) to the holy sanctuary.
  5. Al-Muqaddimah al-ʿIzziyyah by Abul Ḥassan ʿAlī ash-Shādhilī is an intermediate text that concerns the jurisprudence of worship (ʿibādāt), commercial transactions (muʿāmalāt), as well as social ethics. It is studied alongside:
  6. Naẓmu Muqaddimah Ibn Rushd by ʿAbd ar-Raḥmān ar-Rāfiʿī, which is an intermediate text that adds to Manẓūmah al-Qurṭubī. It explains the jurisprudence concerning the five pillars of Islam in detail.
  7. Al-Risālah by Abū Muḥammad ʿAbdullāh ibn Abī Zayd al-Qayrawānī is another intermediate text in the school. The first half is on worship (ʿibādāt), the second concerns aspects of jurisprudence such as marriage (nikāḥ), divorce (ṭalāq), commercial transactions (muʿāmalāt), inheritance (mīrāth), punishments (ḥudūd) and social ethics. This text has the distinction of being continuously taught for over a thousand years—the only fiqh text to have reached us with tawātur (mass-transmission). One unique feature is that the author often uses prophetic traditions (ahādīth) to construct the wording of the text.
  8. Al-Murshid al-Muʿīn by Ibn ‘Āshir, which is an extensive text, categorised into three sciences: Ashʿarī Theology (ʿaqīdah), Maliki Jurisprudence (fiqh) and Spirituality (taṣawwuf) based on the spiritual path of Imam Junaid al-Baghdādī.
  9. Miṣbāh al-Sālik by ʿAbd al-Waṣīf Muḥammad is one of the first advanced books of the Maliki school that is studied before studying later advanced works. This book covers theology, all chapters of jurisprudence (worship, marriage, transactions, commerce, judicial law etc.), and social ethics (akhlāq).
  10. Aqrab al-Masālik by Aḥmad bin Muḥammad bin Aḥmad ad-Dardīr is an advance text that is an abridgement of al-Khalil’s Mukhtaṣar. The author leaves out the differences of opinion, and clarifies some difficult passages from Mukhtaṣar.
  11. Mukhtaṣar Khalīl by Khalīl ibn Isḥāq al-Jundī is the last advance text that is covered by the students of the Maliki school.  It concerns the differences of opinion among major authorities within the school. It has an unrivalled position in the later Maliki school and is the relied upon and mufta bihi text today.

References:

Hausa Women in the Twentieth Century, edited by Catherine M. Coles, Beverly Mack
Maliki Law: The Predominant Muslim Law in Nigeria, by Barr. Abdullahi Ghazali

How To Perform The Solar Eclipse Prayer

When the sun is eclipsed, total or partial, then the Prophet ﷺ is reported to have performed Salātul Kusūf (solar eclipse prayer). The Prophet ﷺ said:

“Verily, the sun and the moon are two of the signs of Allah and they do not eclipse on account of the death or birth of anybody. So whenever you see this, pray and invoke (Allah) until it is over.
[Related by Muslim]

How it is performed according to the Hanafi school:

When the sun is eclipsed, the imam prays two rak’ahs with the people, like the form of the nafl (supererogatory prayer). There is only one bowing in each rak’ah (just as any other prayer). The imam lengthens the recitation in both (of the rak’ahs) and he makes the recitations (inaudible), according to Abu Hanifa….

Afterwards, he makes a supplication until the sun appears again. The imam who performs the jumu’ah prayer with them prays with the people and if the imam is not present, the people pray it individually.

There is no khutbah for the eclipse prayer.

[Source: Mukhtasar al-Quduri]

How it is performed according to the Maliki, Shafi’i and Hanbali school:

It is a sunnah to perform Salatul Kusuf whenever there is a solar eclipse. According to the Hanafis and Hanbalis, it is nafl. The imam goes to the mosque and begins to lead the people in prayer without either an adhan or an iqama. It is recommended that it be performed in congregation, but it can also be performed at home, by oneself. The complete method to pray the solar eclipse prayer is as follows:

  1. Make an intention to pray this sunnah prayer and make the opening takbir.
  2. Recite (inaudibly) the Fatihah and a long surah of the Quran i.e. Surah al-Baqarah or its like.
  3. Say ‘Allahu Akbar’ and go into ruku. Stay in ruku for a considerable period of time.
  4. Say ‘Sami’ Allahu li-man Hamida’ and stand back up.
  5. Recite the Fatiha, again, followed by another long surah of the Quran that is not as long as the previous one i.e. Surah Aali ‘Imran or its like.
  6. Say ‘Allah Akbar’ and go into ruku, less prolonged than the first.
  7. Say ‘Sami’ Allahu li-man Hamida’, followed by ‘Rabbana wa laka l-Hamd’.
  8. Then make two prolonged prostrations (Sajdatain).
  9. Say ‘Allahu Akbar’ and stand back up.
  10. Repeat steps (2) through (8), however, not as prolonged as the first; reciting Surah an-Nisa (or its like) in the third standing and Surah al-Ma’idah (or its like) in the fourth.
  11. Say ‘Allahu Akbar’ and sit back up.
  12. Finally, say the tashahhud and then the salam

According to the Shafi’is and some Hanbalis, the imam then gives a sermon (Khutbah). However, according to the Malikis, there is no khutbah, but there is no harm in the imam taking the opportunity to admonish and remind the people.

[Sources: Risalah Ibn Abi Zayd || Muqaddimat al-Hadramiyyah || al-‘Umda fi ‘l-Fiqh]

Why is my du‘a not being answered?

Ibn ‘Aṭāillāh al-Iskandari [d. 709AH/1309CE] says in his famous work, al-Ḥikam – or “Aphorisms”:

6. If, in spite of intense supplication, there is a delay in the timing of the Gift, let that not be the cause for your despair. For He ﷻ has guaranteed you a response in what He ﷻ chooses for you, not in what you choose for yourself; and at the time He ﷻ desires, not the time you desire.

‘Abd al-Majīd al-Shurnūbī [d. 1348H/1929CE] explains this aphorism in his work, Sharḥ al-Ḥikam:

That is, let not a delay in the timing of a gift [response] – despite persistence and firm continuance in making du‘a – be a cause to despair about a response to the du‘a. For Allah, transcendent is He, has guaranteed you a response, as per His ﷻ words: “Call upon Me, and I will respond to you” [60:40] in what He ﷻ chooses for you, not what you choose for yourself. For He ﷻ knows what is better for you than you do. Perhaps you may ask for a thing, the denial of which is better for you.

The author writes later: “Sometimes He ﷻ gives while depriving you, and sometimes He ﷻ deprives while giving to you.” This is witnessed by those who realise the station: It may be that you hate a thing though it is good for you, or love a thing though it is bad for you. Allah knows, but you know not.” [2:216] This is why one of the gnostics stated: “His ﷻ withholding from you is, in reality, a form of giving.”

Likewise, He ﷻ has guaranteed you a response in the time He ﷻ chooses, not in the time of your choosing. You ought to cultivate a Moses like patience, for patience and avoiding hastiness more befits the servant. Don’t you see that Moses would supplicate against Pharaoh and his people, and Aaron would say: “Amen” to it: “O Lord, destroy their riches and harden their hearts so that they persist in disbelief, until they face the painful torment.” [10:88] Yet only after forty years were their prayers answered, as He ﷻ said: “Your prayer is answered. Follow, both of you, the right path and do not walk in the footsteps of those who know not.” [10:89] In one ḥadīth [it says]: “Indeed, Allah loves those who are persistent in supplicating.” It has also been related that when a righteous slave supplicates to Allah, exalted is He, Gabriel says: O Lord, your slave wants a need of his fulfilled. So Allah ﷻ responds: “Leave my slave; for I love him and love to hear his voice.”

So, O aspirant, fulfil what Allah ﷻ has instructed you with in respect to supplication, and submit to His ﷻ will. Perhaps you will be responded to by Him ﷻ withholding from you and giving you other than what you were seeking, by which you are then granted the greatest good, and even more. [10:26]


Source: The Humble “I”
Picture by: Umar Khan ©

Importance of following the Mashhur — Protocols of Fatwa

It is widely believed by those who have no formal Islamic education, or who are only half-educated, that whenever two or more opinions exist we are free to choose whatever suits our fancy. This is far from the truth and this impression has played havoc with this religion in recent decades. The truth of the matter is that a weak opinion is like a non-existent opinion. The consensus of this blessed ummah was enacted long ago stating that it is impermissible to follow a weak opinion, so what do you think about an incorrect opinion? Ibn Abidin (d. 1252/1836; Damascus) said near the end of his introduction to his Radd al-Muhtar:

وأما إذا كان التصحيح بصيغة يقتضي قصر الصحة على تلك الرواية فقط, كالصحيح والمأخوذ به ونحوهما ممّا يفيد ضعف الرواية المخالفة لم يجز الإفتاء بمخالفها, لما يأتي من أن الفتيا بالمرجوح جهل.

“However, if the wording implies that what is correct is restricted to that opinion only; for example “the sound opinion” (al-sahih), or “what is taken” (al-ma’khudh bihi) [that is, the opinion which is taken for fatwa] and the likes of that which imply that the opinion which stands in opposition to it is weak, then it is not permitted to give fatwa according to the other opinion [that is, the weak opinion], since, as we will presently explain [that is, later on in the book Radd al-Muhtar] the giving of fatwa according to the weaker opinion is ignorance.”

The author of al-Durr al-Mukhtar says towards the introduction of the book in a section concerning protocol for the mufti:

وأن الحكم والفتوى بالقول المرجوح جهل وخرق للإجماع

“Both the judgment [by a Qadi] and the fatwa [of a mufti] according to a weak opinion are ignorance, stupidity and violation of ijmaa‘.”

Ibn Abidin says in commenting on these words in the introduction to Radd al-Muhtar, his commentary on al-Durr al-Mukhtar:

كقول محمد مع وجود قول أبي يوسف إذا لم يصحح أو يقو وجهه, وأولى من هذا بالبطلان الإفتاء بخلاف ظاهر الرواية إذا لم يصح, والإفتاء بالقول المرجوع عنه.

“As for example, opting for the opinion of Muhammad when there is an opinion of Abu Yusaf, and even more invalid is the giving of a fatwa according to an opinion which is contrary to Zahir al-Riwayah when [none of the qualified authorities] have declared that other opinion to be correct (sahih), and the giving of a fatwa according to an opinion which the mujtahid has discarded.”

What Ibn Abidin means by saying, “when none have declared that other opinion to be correct” is that none of the early mashayikh opted for that opinion declaring it to be the correct one. It is one thing to opt for an opinion and another thing to declare it correct, for in order to declare it correct the mujtahid has to be very sure about himself because what in effect he is doing is disqualifying all other opinions and requiring everybody to follow what he has designated as correct and in doing so he is taking upon himself an enormous responsibility one that he may be asked about on the Day of Judgement. The mashayikh are those mujtahids of lower rank than the, Qadi Khan (d. 592), and Burhan al-Din al-Marghinani, the author of al-Hidayah (d. 593); and others of earlier periods whose names recur in the standard works of the Hanafi Madhhab. They are sometimes referred to as mujtahids in fatwa.

Just to assure the reader that what I have said about the obligation to follow the strong opinion is not something restricted to the Hanafi Madhhab, let us look at what the authorities of the Maliki Madhhab have said in this regard. According to the established rules of the Maliki Madhhab, the mufti is obliged to give his decision according to the opinion that their authorities have designated as mashhur, unless there is another opinion in contradistinction to it that their authorities have designated as rajih. The mashhur is that opinion which is supported by a large number of authorities or most of them, while the rajih is that opinion that has a strong proof according to the competent authorities. This has been explained in al-Miyar al-Murab in the beginning of the 12th volume in the recent print by Dar al-Gharb, and in the introduction to the commentary of Mukhtasar al-Khalil by Ibn Hilal (d.903/1497), and in the book Istilah al-Madhhab ‘Inda ‘l-Malikiyah by Muhammad Ibrahim Ahmad published in 1411 H. by Dar al-Buhuth wa ‘l-Dirasat al-Islamiyah in the Emirates, and in the manzumah called Nazm Bu Talaihiyah by Muhammad al-Nabighah al-Ghalawi al-Shinqinti of Mauritania included as an appendix to the previously mentioned work, and in the book of Abu Abd Allah Muhammad ibn Qasim al-Fasi (d. 1331 / 1913) Rafa’ al-‘Itab wa ‘l-Malam ‘amman Qala al-‘Amal bi ‘l-Da’if Ikhtiyaran Haram… In this last mentioned work, Shaikh Muhammad ibn Qasim included in the third section of the book a chapter he titled في دليل كون العمل بالمشهور أو الراحج واجبا كما أن العمل الحكم به واجبا; that is, “Concerning the proof that one is obligated to follow the mashhur or the rajih in one’s own practice as in giving fatwa and a judicial decision.” He compiled in this chapter the recorded statements of twelve great men of the Maliki Madhhab including the statement of Imam Malik. He opened the chapter saying:

اعلم أنه قد صرّح بوجوب ذلك جماعة من العلماء العاملين والفقهاء الراسخين. منهم: الإمام مالك وابن القاسم وعيسى بن دينار وابن مزين كما نقل ذلك عنهم الونشريسي في المعيار, ونصّه بعد كلام: وما أحسن ما ذكره ابن مزين عن عيسى بن دينار عن ابن القاسم عن مالك أنه قال: ليس كل ما قال رجل قولا وإن كان له فضل يتبع عليه لقوله تعالى: الذين يستمعون القول فيتّعون أحسنه أهـ ومعنى كلام مالك المذكور أنه ليس كل قول صدر من عالم فاضل يعتبر ويعتدّ به, بل إنما يعتبر قول له حظ من النظر, وهو المشهور أو الراحج ويرحم الله القائل

إلا خلافا له حظ من النظر وليس كل خلاف جاء معتبرا

“Know that numerous dedicated ulama and firmly grounded fuqahaa’ have declared that [that is, that it is obligatory to follow the mashhur or the rajih in one’s own practice as well as in the giving of fatwa and judicial decision]. Among them was Imam Malik (d. 179 / 795) and Ibn al-Qasim (d. 191 / 807) and ‘Isa ibn Dinar (d. 212 /827) and Ibn Muzayyin (d. 260 / 874) as was reported by al-Wansharisi (d. 914 / 1508) in his al-Mi‘yar [al-Mu’rab] where he said:

How fine is what Ibn Mazayyin reported from ‘Isa ibn Dinar from Ibn al-Qasim from Malik; namely, that he said:

Not everything a man has said, no matter how distinguished he might be, is to be followed, for Allah Ta’ala has said: “Those who listen to what is said and follow the best of it.” (39:18)

What Imam Malik meant is that not everything that a distinguished ‘alim has said is to be heeded and accepted; rather that opinion will be accepted which has been favorably received by the competent authorities (lahu hazz min al-nazr), and that is the mashhur, or the rajih. May Allah show mercy to the one who said [in verse]:

Not all contestation counts; rather, the contestation of those who have a share in nazr (reflection).”

The term I translated above as “which has been received by the competent authorities” literally means a statement which has had its share of nazr; now nazr in the usage of the fuqaha’ refers to the examination, or speculation, or reflection of those who are competent to distinguish weak from sound statements and the stronger from strong statements and for this they require some share in ijtihad even if it is of a lower degree. We will see it used in this way in a text from Shaikh ‘Ulaish, the Maliki Shaikh of al-Azhar last century which we will cite presently. The correctness of this interpretation of nazr is demonstrated by Habib Ahmad al-Kiranwi, the author of Fawa’id fi ‘Ulum al-Fiqh, one of the best works, nay the best work ever written in defence of taqlid, and in the refutation of those who authorize the pseudo-ijtihad of impostors; he says there:

وقوله: “إن كانت قد تبينت له الدلالة في خلاف قول من قلده, فقد علم أن تقليده في خلافه اتباع لغير المنزل” باطل لأن العلم الحاصل للجاهل من جهة النظر والاستدلال كلا علم لحديث: قتلوه, قتلهم الله, ألا سألوا إذ لم يعلموا, إنما شفاء العي السؤال, فلا بدّ أن يكون العمل برأي نفسه اتباعا لغير المنزل لا تقليد العالم, فافهم.

“He [that is, the statement of Ibn al-Qayyim (d. 751 /1350; Damascus) who is his book A’lam al-Muwaqqi’in devoted a lot of time trying ineptly to establish that taqlid is impermissible] says:

If he realized that the proof goes against what the one he follows [that is, the imam he follows in taqlid] holds, he knows that his following him [that is, in taqlid] in his opinion that is against the proof is following other than what has been revealed [to the Prophet صلى الله عليه وسلم].

His statement is nonsense because the knowledge that an ignorant person [which he has defined as a non-mujtahid] obtains by reflection (nazr) and argumentation is non-knowledge; that is corroborated by the hadith:

They have killed him! May Allah kill them! Why did they not ask when they did not know? The remedy of ignorance is to ask.

Therefore, it is seen that following one’s own opinion is following other than what has been revealed not the following of an ‘alim. Understand the point.”

We see here that the reflection of the non-mujtahid is ignorance and incompetence; whereas, the reflection of a mujtahid is knowledge derived competently from the revelation. The former is worthy; the latter is worthless. What Imam Malik and the poet whose verse was quoted above mean then by the term nazr is the reflection, or speculation of the competent authority; that is, the mujtahid even if he a mujtahid of the lower degree by which we mean one competent to give fatwa on those issues for which there is no report from his imam, or to interpret ambiguous statements from his imam, or to decide which is the sound opinion between two or more contradictory reports from his imam.

Next Shaikh Muhammad Qasim quoted Ibn Abi Jamrah (d. 695 or 699 / 1296 or 1300) and his shaikhs:

وقد كان من لقينا من الفضلاء الأجلة يقول: لا يحل لأحد أن يتدين إلا بالمشهور, ولا يفتي إلا به.

“Those illustrious and distinguished people whom I met used to say: “It is not lawful for anybody to follow in his religion [any opinion] except what is the mashhur [opinion], and one may not give any fatwa but it.”

After mentioning this Shaikh Muhammad ibn Qasim mentioned that this statement of Ibn Abi Jamrah was reported by Abu al-Sa’ud Abd al-Qadir al-Fasi (d. 1091 / 1680) in his book al-Nawazil. It should be obvious that he quoted it as an authoritative statement.

Shaikh Muhammad ibn Qasim mentioned after a couple of other examples a statement from the same Abu al-Sa’ud Abd al-Qadir al-Fasi, whom we just mentioned, in his book al-Nawazil:

العمل بالمسهور هو الواجب وارتكاب الرخصة يوما ما للضرورة سائغ.

“Following the mashhur in one’s practice is obligatory, while following [the weak opinion, or the opinion which stands in opposition to the mashhur] as a dispensation one day out of necessity is acceptable.”

Now before the uninitiated in the science of fiqh jump to conclusions and give fatwa according to the weak opinion and put it themselves into practice every other day, they should pay close attention to the words “following” and “one day” and “out of necessity”. Shaikh Abd al-Qadir devoted several chapters in his book in discussion of the fact and in the enumeration of the proofs that it is while it is permissible to put an opinion which is weak into one’s own practice, provided it is not extremely weak, and provided that there is a real, inescapable necessity, which does not simply mean some inconvenience, and provided that it is done on a single occasion, and provided that one does not give for others a fatwa or judicial decision based on the weak opinion; otherwise, it is not permissible to do so if these conditions do not obtain. So just let the rash be careful.

Next he quoted a statement from Shaikh Ali al-Sa’idi al-‘Adawi (d. 1189 / 1775) , the author of a supercommentary called Hashiyatu ‘ala Kifayatu ‘l-Talibi ‘l-Rabbani, a commentary on Risalatu Ibn Abi Zaid;

وأما إذا كان أحدهما [أي القولان] مشهورا, فيجب العمل بالمشهور, ولا يجوز العمل بالضعيف, ولو في خاصة نفسه.

“However, if one of them [that is, the two contradictory opinions] is mashhur, then one is obligated to follow in one’s practice the mashhur, and it is impermissible to follow the weak opinion in one’s own practice.”

Next Shaikh Muhammad ibn Qasim quoted Imam Abu Abd Allah Muhammad ‘Ulaish (d. 1299 / 1882) , the defiant, fearless Shaikh of al-Azhar last century in his al-Ajwibah:

إذ يجب العمل بالراجح والمشهور مذهبنا, وإن لم نعلم دليله ولا قوّته ولا الاتفاق عليه, فإنه – أي ما ذكر من الراحج أو المشهور- حجة علينا ما دمنا في ربقة التقليد. قال ونظْرُنا في الأدلة والاتفاق والاختلاف فضول, إذ وظيفتنا مخض التقليد واتّباع الراجح أو المشهور, والله سنحانه وتعالى أعلم.

….For one is obligated to follow in one’s practice [the opinion] that is rajih, or mashhur of our madhhab [that is, the Maliki Madhhab] even if we do not know the proof for that opinion, nor the strength of the opinion [that is, by ourselves; rather, we can know it by the fact that the competent authorities have declared it to be mashhur, or rajih], nor the fact that there is agreement [that is, by ourselves; rather we can know that by the fact that the competent authorities have declared it to be the mashhur], for it [that is, the rajih, or the mashhur] is the compelling authority over us as long as we are tied with the tether of taqlid. Our speculation (nazr) based on the proofs and on the agreement [of the fuqahaa’] and their disagreement is meddling [the Arabic term fudul here expresses a presumptuous and vain interference in a matter for which we have no competence], for our job is pure taqlid, and ours is to follow the rajih, or the mashhur. Allah, whom I declare to be perfect beyond all defect and exalted beyond all comparison, knows better.

In al-Miyar al-Mu’rab al-Wansharesi (d. 914 / 1508) quoted his shaikh who quoted Ibn Farhun, an ‘alim of high authority in the Maliki madhhab:

فهل يلزم القاضي المقلد إذا وجد المشهور أن لا يخرج عنه؟ وذكر عن المازري أنه بلغ درجة الاجتهاد وما أفتى قط بغير المشهور وعاش ثلاثا وثمانين سنة, وكفى به قدوة في هذا! فإن لم يقف على المشهور من الروايتين والقولين, فليس له التشهي والحكم بما شاء منهما من غير نظر في الترجيح.

Is the qadi who is a muqallid [that is, he is not a mujtahid of any degree] if he finds an opinion [which the competent authorities have designated as] mashhoor compelled to not depart from it? It is reported that al-Mazari [d. 536 / 1141] attained the rank of ijthihad, and yet never did he give a fatwa against the mashhur and he lived to be eighty-three years old, and enough is al-Mazari as an example in this [that is, sticking to the mashhur]. Furthermore, if one does not discover any of the authorities designating either one of two reports [from Imam Malik or one of the Maliki imams], or of two opinions, one is not permitted to follow his whim and chose either one of them without seeking to find some [legitimate] way of giving preponderance (tarjih) to one of them.

Upon completing the citation of twelve authorities Shaikh Muhammad ibn Qasim al-Fasi, some of which we have omitted in order to make what is already a long digression briefer, on the obligation of following the mashhur and the rajih, summarized the matter thus:

فتحصل من كلام هؤلاء الأئمة الأعلام أن العمل بالمشهور أو الراجح واجب, فالاقتداء بهم واجب على ما قال ربي الله ثم استقام, ولنختم هذا الفصل بكلام العلامة ابن السبكي في جمع الجوامع ليكون كلامه لكلام الأئمة المتقدمين كالطابع ونص المقصود منه ممزوجا بشرحه: (والعمل بالراجح واجب) بالنسبة للمرجوح, فالعمل به ممتنع سواء كان الرجحان قطعيا أو ظنيا اهـ منه في كتاب التعادل والتراجيح, فقوله العمل بالرجحان يسمل ما إذا كان راجحا بكثرة الأدلة وقوّتها, وهو المسمى بالراجح عند الفقهاء كما مرّ في الفصل الأول, ويشمل ما إذا كان راجحا بقوة قائله وهو المسمى بالمشهور عند جمهور الفقهاء كما مرّ أيضا, نقل ذلك الشمول بعض المحققين عن الشيخ التاودي, والله اعلم.

Thus, what we have learned from the statements of the preceding illustrious imams is that we are obligated in our practice to follow the opinions which are mashhur, or rajih, and furthermore, all those who declare “My lord is Allah” then are steadfast [in obeying Him] are obliged to follow them [because they know what we do not and because they are to be trusted]. Let us close this section with the mention of what [Taj al-Din] al-Subki [d. 771 / 1370; Damascus] wrote in is Jam’u ‘l-Jawaami’ [a famous work in the principles of fiqh] including its commentary [by Jalaal al-Din al-Mahalli (d. 864 / 1459; Cairo)]:

We are obligated to follow in our practice the strong opinion (al-rajih); that is, with respect to the weak opinion, for it is prohibited to follow the weak opinion regardless of whether the preponderance [of the strong opinion] is determined by proofs which are conclusive [qat’i; which means they leave now room for any doubt], or by proofs which are tentative [zanni; which means that while they may be strong, they leave some room for doubt]. Now the author’s statement “to follow in our practice the strong opinion” includes what has been determined as strong based on the number of different proofs and their strength, and that is what is technically called al-rajih by the fuqahaa’ as we discussed previously in the first section.

A number of persons who have set themselves up as authorities routinely resort to weak, or even incorrect opinions playing on the general ignorance of the Muslims, so let the reader take proper stock of the preceding citations.

Ibn Abidin cited statements from a number of ulama of the different madhhabs including Ibn Hajr al-Haitami and Ibn Salah confirming that there is complete agreement (ijma) among those whose opinion counts that is impermissible to act or give fatwa according to weak opinions; he said in the beginning of his article Sharh Manzumah ‘Uqud Rasm al-Mufti, which is his poem on protocol for the mufti along with his commentary on that poem; it has which has been published along with his other articles in Majmu’ah Rasa’il Ibn ‘Abidin;

ترجيحه عن أهله قد علما اعلم بأن الواجب اتباع ما
يرجحوا خلاف ذاك فاعلم أو كان ظاهر الرواية ولم

أي إن الواجب على من أراد أن يعمل لنفسه أو يفتي غيره أن يتبع القول الذي رجّحه علماء مذهبه، فلا يجوز له العمل أو الإفتاء بالمرجوح إلا في بعض المسائل للضرورة القاسية كما سيأتي في النظم. وقد نقلوا الإجماع على ذلك في الفتاوى الكبري للمحقق ابن حجر المكي: قال في زوائد الروضة إنه لا يجوز للمفتي والعامل أن يفتي أو يعمل بما شاء من القولين أو الوجهين من غير نظر [حتى يعرف الراجح منهما، وإن كان غير أهلا للنظر، وهو حكم كل أهل زماننا، فالواجب أن ينقل الترجيح من أهله] ، وهذا لا خلاف فيه وسبقه ألى حكاية الإجماع فيها ابن الصلاح الباجي من المالكية[ ت 474] في المفتي وكلام القرافي[أيضا من أئمة المالكية، ت 684] دال على أن المجتهد والمقلد لا يحل لهما الحكم والإفتاء بغير الراجح لإنه اتباع الهوى[كما رأيتَ في كلام الغزالي في رسالته إلى أبي بكر ابن العربي الذي نقلت لك وترجمته لك] وهو حرام إجماعا، وأن محله في المجتهد ما لم تتعارض الأدلة عنده و يعجز عن الترجيح وإن لمقلده حينئذ الحكم بأحد القولين إجماعا. وقال الإمام المحقق العلامة قاسم بن قطلوبغا [المحدث الحنفي، تلميذ لابن الهمام، ت 879] في أول كتابه تصحيح القدوري: إني رأيت من عمل في مذهب أئمتنا رضي الله عنهم بالتشهي حتى سمعت من لفظ بعض القضاة هل ثمّ حجر؟ فقلت نعم اتباع الهوى حرام، والمرجوح في مقابلة الراجح بمنزلة العدم، والترجيح بغير مرجّح في المتقابلات ممنوع. وقال في كتاب الأصول لليُعمري [من أئمة المالكية، ت 734]: من لم يطلع على المشهور من المذهب من الروايتين أو القولين، فليس له التشهي والحكم بما شاء منهما من غير نظر في الترجيح [والأمر كما قلت من قبل في تعليقي على كلام ابن حجر]. وقال الإمام أبو عمرو [ابن الصلاح] في آداب المفتي: اعلم أن من يكتفي بأن يكون فتواه أو عمله موافقا لقول أو وجه في المسألة ويعمل بما شاء من الأقوال والوجوه من غير نظر في الترجيح فقد جهل وخرق الإجماع.

“Know that it is obligatory to follow what the competent authorities have determined to be sound, or to follow the opinion of Zahir al-Riwayah and provided they [the competent authorities] did not give preference to an opposing opinion [outside Zahir al-Riwayah], so be informed. [I have rendered the foregoing passage in prose although the original was in rhyming verse.]

We mean to say that it is obligatory for one who wants to act for himself, or to give a decision (fatwa) to another, to follow the opinion which the ulama [that is, those who are mujtahids in fatwa not the puny people of later times] of his madhhab have confirmed (rajjahahu / رجّحه) [that is, declared to be sound or correct]. Thus, it is not permitted for him to act, or to give fatwa, according to the weak opinion [al-marjuh / المرجوح, which literally means “outweighed”] except in a few issues for some pressing need [with conditions similar to those mentioned by Shaikh Abd al-Qadir previously; see page 41] as we will mention presently in the poem [that is his own manzumah which he is here commenting on]. The thorough verifier and careful investigator (al-muhaqqiq) Ibn Hajr [al-Makki (d. 975 h. / 1567; Makkah)] reported that there is consensus (ijmaa) on this matter in his book al-Fatawa al-Kubra [also known as al-Fatawaa al-Fiqhiyyah], for he wrote: “He wrote [al-Nawawi]:

It is not permitted for the mufti or even for the one who simply wants to act for himself to follow whichever of two opinions he pleases, or whichever interpretations of the statements of the imam (al-wajhain) without investigating (al-nazr) , and that is something about which there is no disagreement.

Before Ibn Hajr, Ibn Salah [d. 643 / 1245; Damascus] and [Abu ‘l-Waleed] al-Baji [d. 474 / 1081; Almeria, who was a mujtahid in fatwa and a consummate and famous muhaddith] of the Malikis in [his book] al-Mufti, and what al-Qarafi [(d. 684 / 1285; Cairo) a Maliki imam of high standing and a specialist in the principles of fiqh] said indicates that both it is not lawful for either the mujtahid or the muqallid [that is, the non-mujtahid who is bound to follow the mujtahid so that it does not act blindly] to give a decision [in a court of law] or a fatwa according to other than the strong opinion (al-rajih) because doing otherwise is to follow one’s desire [since whatever is not based on knowledge must be based on whim or sentiment] and that is haram [absolutely prohibited] by consensus. This applies to the mujtahid in those cases where there is no conflict among the proofs that he has related to an issue, and where he is not incapable of determining one of the proofs to be stronger [for otherwise, he is free to choose whichever opinion one he prefers]. If the mujtahid is incapable of determining one of two opinions to be stronger, then the one who follows him (al-muqallid) is free to choose whichever of the two opinions he wishes, and this is a matter of consensus (ijma‘), [that is, agreement among those whose opinion counts, namely, the mujtahids].

The imam [that is, the one whom the ulama make their arbiter in questions of dispute], the muhaqqiq [that is, one who is astute at verifying learned issues and is utterly thorough in his investigations proving everything that he says] the allamah [that is, the very learned] Qasim al-Qutlobugha’ [d. 879 / 1474; Cairo] in the beginning of his book Tas’hih al-Quduri / تصحيح القدوري :

I have seen those who act arbitrarily in the madhhab [that is, the Hanafi Madhhab] of our imams, may Allah be pleased with them, [note that he purposely mentioned imams to suggest that not everything everyone who claims to follow the Hanafi Madhhab says warrants being ascribed to the madhhab]. Indeed, I heard a qadi (judge) say: “Is that prohibited”? I replied:

“Yes, because following one’s desire is haram, and the weak open (al-marjuh / المرجوح) [literally, the opinion which is outweighed] in the face of the strong opinion (al-rajih / الراجح) is as if it did not exist, and choosing one opinion over another that opposes it without any basis is prohibited.”

Al-Ya‘muri [a Maliki alim] said in his Kitab al-Usul:

“Whoever does not find the mashur in the madhhab from one among two reports [from Imam Malik], or two opinions in the madhhab , he may not follow his whim or choose whichever opinion he pleases without investigating what opinion deserves to take precedence.”

Imam Abu ‘Amr Ibn al-Salah said in his Adab al-Qadi:

“Know that whoever confines himself to giving a fatwa, or basing his practice, on an opinion, or an interpretation on a mas’alah (issue) and follows whatever he pleases of the opinions and interpretations without considering what opinion deserves to take precedence acts stupidly and violates consensus.””

Ibn Abidin wrote in the same article a little later:

وقولي [أي في النظم] عن أهله، أي أهل الترجيح، إشارة إلى أنه لا يكتفي بترجيح كل عالم كان.

“My statement [in the verse mentioned above at the outset of the previous long quotation] “the competent authorities,” that is, “those who are qualified to weigh the conflicting opinions” is an intimation of the fact that not just every alim’s weighing (tarjih) is sufficient.”


By Ustadh Abdus Shakur Brooks ©

Moon-sighting or Saudi-following?

Firstly, giving an *informed opinion* about an issue is not the same as “confusing the people”; it’s cognitive dissonance if anything. When ignorance is widespread, knowledge is what is needed; knowledge of Fardhul ‘Ayn because knowledge comes before action.

Allah says in the Qur’an:

“So whoever from amongst you *witnesses* the month, let him fast.”
[Sūrah al-Baqarah, V. 185]

Ibn Abdul Barr comments on the above Ayah:

He means – and God knows best – whoever among you knows, with a knowledge that is certain, that the month has indeed begun must fast it.” And knowledge that is certain is (based on) either a clear and widespread sound sighting or the completion of thirty days of the previous month.”

Qur’an demands testimony of sighting as the Sabab (causation). Testimony must only be of factual presence, not based on possibilities.

“Sighting of the crescent is demanded by Sharī’ah”

[Hanafī: Hāshiyah Radd al-Mukhtār]
[Mālikī: Risālah ibn Abī Zayd]
[Shāfi’ī: Muhadhdhab of Shirāzī]
[Hanbalī: Mughnī of Ibn Qudāmah]

Imām as-Subkī says:

If a calculation shows that moon doesn’t exist on the horizon yet a Muslim claims to have seen it, then this testimony is to be *rejected*, due to the absence of evidentiary qualities.

As for “sighting”, there are two opinions:
1) Local Sighting: Various horizons at locality (points of rising).
2) Global Sighting: Single horizon globally.

There is no such thing as “Saudi sighting” or “Pakistani Sighting”. The formation and visibility of new crescent will never be at the same location, every month.

Here are some statistics for countries that relied on *calculation* for Ramadhan:

– Saudi Arabia: From 1961-2004, went with the *wrong* day 64% of the time, when the crescent was *not* even present on the horizon; 23% possible and 13% definite.

– Syria: From 1950-2001, went with the *wrong* day 59% of the time, when the crescent was *not* even present on the horizon; 33% possible and 13% definite.

– Morocco: From 1963-2004, went with the *wrong* day 1% of the time, when the crescent was not even present on the horizon; 74% possible and 25% definite. They relied on accurate calculations *with* local (naked-eye) sighting.

Saudi Arabia is *not* the Muslim Vatican, so if you really want to follow the sighting of a particular country, it should be obvious (based on the above) which one you should really be following.

Imām al-Bājī said:

If anyone did rely on calculations (for moonsighting) I opine that he should *not* consider his fasting sound based upon calculation and return to sighting (the crescent) or the completion of thirty-days. If that results in him having to make up any days, he should…