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Principles of Issuing Fatw” (Uÿ'l Al-Ift”) in the Hanafi

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Principles of Issuing Fatw” (Uÿ'l Al-Ift”) in the Hanafi PRINCIPLES OF ISSUING FATWÓ (UØÕL AL-IFTÓ) IN THE HANAFI LEGAL SCHOOL: AN ANNOTATED TRANSLATION, ANALYSIS AND EDITION OF SHAR× ÑUQÕD RASM AL-MUFTI OF IBN ÑÓBIDÔN AL-SHÓMI BY MOHAMMED FARID ALI A dissertation submitted in fulfilment of the requirement for the degree of Doctor of Philosophy of World Contemporary Muslim Issues International Institute of Islamic Thought and Civilization International Islamic University Malaysia MARCH 2013 ABSTRACT This work studies the SharÍ ÑUqËd Rasm al-MuftÊ (An explication of the Chaplets on the Manual of the Mufti to Give Fatwa) of Ibn Abidin al-Shami (d. 1252/1836) which collects everyday principles a mufti should know to serve the fatwa-giving institution (iftÉ’). The principles in this treatise dwell around fatwa giving methods of the Hanafi legal school. The researcher edited and presented the Arabic text in the modern style with complete information of the works and scholars Ibn Abdin referred to with short titles and names. The text was translated into English and drew an analysis reflecting on the principles Ibn Abidin presented in the treatise. The work finds that a mufti is bound to give fatwa according to the preferred (rÉjiÍ) opinion of a legal school or of a mujtahid. This principle gives assurance that the mufti is not giving fatwa according to his lust (hawÉ) or out of ignorance (jahÉlah). This principle is only feasible, if the mufti is an expert in knowing the hierarchy of the legal transmissions of the legal school, hierarchy of the scholars (fuqahÉ), and their works. He should know the different writing styles of the fuqahÉ and their method of compiling several legal opinions for a single issue. The mufti has to master the rectification codes such as saÍÊÍ (correct opinion) and muftÉ bihi (opinion according to which the fatwÉ is given) and its hierarchy in choosing a legal opinion for his fatwÉ. Ibn Abidin’s treatise does not discuss principles which only demand the mufti to be a bookworm, but there are principles which require the mufti to know the situation and circumstances of the mustaftÊ. The mufti can only know the maÎlaÍah and ÌarËrah if he knows the custom (Ñurf) and habit of his people. The mufti cannot give fatwÉ according to an opinion which was based on some other people’s custom to his people who follow their own sets of customs and habits. This may cause injustice and hardship to the people. Human need is an important factor and hence if the mufti has to give fatwÉ according to a weak or not preferred opinion of a legal school or a mujtahid, he can do so. Ibn Abidin’s treatise is not the A-Z of the principles of giving fatwÉ, but it is a starting point to put the scholars on tract who intend to serve the institution of giving fatwÉ. ii ملخص البحث إن اﻷطروحة دراسة رسالة ابن عابدين الشامي )املتويف عام 2121\2381( املعرفة بــ "شرح عقود رسم املفيت" والذي جيمع املبادئ اليومية اليت جيب على املفيت أن يُلم هبا حىت خيدم املؤسسة الفقهية )اﻹفتاء(. واﻷهداف الرئيسية هلذه اﻷطروحة تتمركز حول املناهج املستخدمة ﻹصدار الفتوى يف املدرسة احلنفية. وحيرر البحث ويعرض النص العريب بطريقة عصرية حديثة، شاملة جلميع املعلومات اليت حيتوي عليها العم،، وكذل يميع العلماء الذين أشار إليهم ابن عابدين سواءا باللقب أو باﻻسم. ولقد متت تريمة النص للغة اﻷنغليزية مما ىأد إىل لفت اﻹنتباه إليه من خﻻل املبادئ اليت قدمها ابن عابدين يف دراسته. وختلص الدراسة بأنه ﻻبد للمفيت أن يصدر الفتوى وفقا للرأي الراجح، وفقا للمدرسة الفقهية أو وفقا لﻻجتهاد. وهذا املبدأ يؤكد بأن املفيت ﻻ يصدر الفتوى وفقا هلواه، أو عن جه،. وميكن تطبيق هذا املبدأ فقط يف حالة كون املفيت خبريا يف معرفة التسلس، اهلرمي للتشعب الفقهي للمدرسة الفقهية، وأيضا التسلس، اهلرمي لعلماء تل املدرسة، وكذل أعماهلم الفقهية. فيجب أن تكون للمفيت معرفة تامة بأمناط الكتابة املختلفة للفقهاء، عﻻوة على مناهجهم ﻻستنباط خمتلف ارآراء الفقهية يف املسألة الفقهية الواحدة. وجيب على املفيت بأن يتقن بـرموز التصحيح كمث، "الرأي الصحيح"، و "املفىت به"، وأيضا التسلس، اهلرمي ﻻختيار اﻷراء الفقهية لفتواه. إن عم، ابن عابدين ﻻ يناقش فقط املبادئ اليت تطالب املفيت بأن يكون متبحرا يف علوم الكتب، وإمنا تطرح بعض املبادئ اليت جترب املفيت بأن حييط علما حبالة املستفيت وظروفه. وميكن للمفيت بأن يعرف فقط املصلحة والضرورة، يف حالة معرفته عرف القوم وعاداهتم. وﻻ يستطيع املفيت أن يصدر الفتوى وفقا لرأي مبين على بعض أعراف أناس آخرين، لقومه الذين يتبعون جمموعة أعرافهم اخلاصة ، اﻷمر الذي قد يسبب الظلم واملشقة للناس. واحلاجة البشرية هي العام، اﻷهم، وعليه فإن كان وﻻبد للمفيت بأن يصدر فتوى وفقا لرأي ضعيف أو رأي غري متبع يف املدرسة الفقهية أو وفقا لﻷجتهاد، فإن عليه أن يصدر الفتوى. وأطروحة ابن عابدين ﻻ تشم، يميع مبادئ إصدار الفتوى من اﻷلف إىل الياء وإمنا هي حجر اﻷساس أو نقطة البداية اليت من املمكن أن تضع العلماء يف الطريق الصحيح يف سبي، خدمة املؤسسة الفقهية ﻹصدار الفتوى. iii APPROVAL PAGE The thesis of Mohammed Farid Ali has been approved by the following: __________________ Mahmood Zuhdi Abd Majid Supervisor ____________________ Akhtarzaite Abdul Aziz Internal Examiner __________________ Luqman Hj Abdullah External Examiner ____________________ El Fatih Abdullahi Abdelsalam Chairman iv DECLARATION I hereby declare that this thesis is the result of my own investigations, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degrees at IIUM or other institutions. Mohammed Farid Ali Signature _________________ Date ____________________ v INTERNTATIONAL ISLAMIC UNIVERSITY MALAYSIA DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH Copyright © 2013 Mohammed Farid Ali. All rights reserved. PRINCIPLES OF GIVING FATWÓ (UØÕL AL-IFTÓ) IN HANAFI LEGAL SCHOOL WITH AN ANNOTATED TRANSLATION, ANALYSIS AND EDITION OF SHAR× ÑUQÕD RASM AL-MUFTI OF IBN ÑÓBIDÔN AL-SHÓMI (D. 1252/1836) No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior permission of the copyright holder except as provided below. 1. Any material contained in or derived from this unpublished research may only be used by others in their writing with due acknowledgement. 2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes. 3. The IIUM library will have the right to make, store in a retrieval system and supply copies of this unpublished research if requested by other universities and research libraries. Affirmed by Mohammed Farid Ali. ………………………….. ………………………. Signature Date vi To my late grandmother Shamsun Nisha the Iron lady of our family vii ACKNOWLEDGEMENTS In the name of Allah, the Most Merciful, the Mercy-giving Praise and thanks to Allah Almighty, peace and blessings be upon the Messenger of Allah, his family, his Companions, and all of his followers. My primary gratitude is to Allah: by His grace and mercy the thesis has seen the day of completion. After this, I would like to thank my supervisor Prof. Emeritus Dato’ Dr. Mahmood Zuhdi for guiding me with his reach experience in the field of fiqh and fatwa. His patience allowed me to work creatively. Then the internal examiner Dr. Akhtarzaite Abdul Aziz with her comments perfected the thesis further. The final meticulous hammer to shape the thesis was by my external reader Dr. Luqman Hj Abdullah. The completion of my thesis also owes greatly to my god-father Prof Dr. Ajmal M. Razak al-Aidrus. He arranged monthly financial support sufficient for me and my family in order to abandon my job and concentrate on my writing. To assure my commitment he allocated a spot near to his office where I could go in the morning and work till 5pm daily. Beside checking on my progress, he also shared his food with me. I would also like to thank Prof. Dr. Hassan Nagar for his numerous advices he gave to improve the quality of the translation of the treatise I worked on in my thesis. In times of depression he tickled me with his treasure of jokes and funny stories. I cannot forget my family members on this occasion. My uncle Aiyub Khan supported me financially, and his wife Regina Khan bought me a new notebook especially to write my thesis. Special gratitude goes to my in-laws aswell who looked after my children in the weekends to spare me time for the writing. Surely we are societal animals. Achievment on our own is not possible. Having said this, I would like to thank all ISTAC and IIUM teachers and friends for supporting me one way or the other. May Almighty Allah bestow His special Grace on all. Ameen. viii TABLE OF CONTENTS Abstract ................................................................................................................. ii Abstract in Arabic ................................................................................................. iii Approval Page ....................................................................................................... iv Declaration Page ................................................................................................... v Copyright .............................................................................................................. vi Dedication ............................................................................................................. vii Acknowledgments ................................................................................................. viii PART ONE: ANALYSIS AND DISCUSSION REFLECTING ON THE SHAR× ÑUQÕD RASM AL-MUFTÔ TEXT ..................................................................... 1 INTRODUCTION ..............................................................................................
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