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

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 األطروحة 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 )اإلفتاء(. واألهداف الرئيسية هلذه األطروحة تتمركز حول املناهج املستخدمة إلصدار 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 باالسم. ولقد متت تريمة النص للغة األنغليزية مما ى أدإىل لفت اإلنتباه إليه من خالل املبادئ اليت قدمها ابن عابدين يف دراسته. وختلص الدراسة بأنه البد للمفيت أن يصدر الفتوى وفقا للرأي الراجح، وفقا للمدرسة الفقهية أو وفقا لالجتهاد. وهذا املبدأ يؤكد بأن املفيت ال 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، عالوة على مناهجهم الستنباط خمتلف ارآراء الفقهية يف املسألة الفقهية الواحدة. وجيب على املفيت بأن يتقن بـرموز التصحيح كمث، "الرأي الصحيح"، و "املفىت به"، وأيضا التسلس، اهلرمي الختيار األراء الفقهية لفتواه. إن عم، ابن عابدين ال 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. وال يستطيع املفيت أن يصدر الفتوى وفقا لرأي مبين على بعض أعراف أناس آخرين، لقومه الذين يتبعون جمموعة أعرافهم اخلاصة ، األمر الذي قد يسبب الظلم واملشقة للناس. واحلاجة البشرية هي العام، األهم، وعليه فإن كان والبد للمفيت بأن يصدر فتوى وفقا لرأي ضعيف أو رأي غري متبع يف املدرسة الفقهية أو وفقا لألجتهاد، فإن عليه أن يصدر الفتوى. وأطروحة ابن عابدين ال تشم، يميع مبادئ إصدار الفتوى من األلف إىل الياء وإمنا هي حجر األساس أو نقطة البداية اليت من املمكن أن تضع العلماء يف الطريق الصحيح يف سبي، خدمة املؤسسة الفقهية إلصدار 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

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

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 ...... 1 0.1 FatwÉ And Rasm Al-Mufti ...... 1 0.1.1 Ibn Abidin’s Rasm al-Mufti and its Importance ...... 2 0.2 Objective GharaÌ) Of this Study ...... 4 0.3 Literature Review ...... 4 0.3.1 Types of Previous Studies on FatwÉ ...... 4 0.3.2 Narrowing the Scope of Studying Rasm Al-Mufti...... 6 0.3.3 Previous Studies and Works on Ibn Abidin’s SharÍ ÑUqËd rasm al-muftÊ ...... 6 0.3.3.1 Works in English ...... 6 0.3.3.2 Works in Arabic ...... 7 0.3.3.3Works in Urdu ...... 8 0.3.3.4 Points of Distinction ...... 8 0.4 Methodology of Research ...... 9 0.4.1 Researcher’s Edition of the Text ...... 9 0.4.2 Translation of the Text ...... 11 0.4.3 Analysis of Sharh ÑUqËd Rasm al-Mufti ...... 11 0.5 Outline of the Chapters and the Contents of this Work ...... 12 0.6 Who Is Ibn ÑÓbidin? ...... 17

CHAPTER ONE: PROLOGUE ...... 24 1.1 Explication of Chaplet 1—8 ...... 24 1.1.1 Commencement with Basmallah and ×amdallah...... 24 1.1.2 BarÉ’at al-IstihlÉl Style ...... 26 1.2 The word al-SharÊÑah, al-Millah and al-DÊn and its Usage...... 27 1.3 Ibn Abidin’s Classification of Sciences and Its Fundamental Elements ...... 28 1.3.1 Ten (10) Fundamental Elements of Acquaintance with a Science—Fiqh ...... 29 1.3.2 Ibn Abidin’s Definitions of Fiqh ...... 31 1.3.2.1 Fiqh to Abu Hanifah ...... 31 1.3.2.2 Fiqh to UÎËlis (Scholars of UÎËl al-Fiqh) ...... 32 1.3.2.3 Fiqh to FuqahÉ ...... 32 1.3.2.4 Fiqh to the Sufis (Ahl al-×aqÊqah) ...... 33

ix 1.3.3 FatwÉ and the Institution of Giving FatwÉ (IftÉ’) ...... 33 1.3.3.1 The Word FatwÉ and IftÉ’ Literally and Technically .... 33 1.3.4 The Role and Correlation of the two Institutions Fiqh and IftÉ’ ...... 34 1.4 Rasm And UÎËl ...... 36 1.4.1 Proposing a New Classification ...... 34

CHAPTER TWO: THE METHOD OF GIVING PREFERENCE, JURISTIC THEORY AND THE SOURCES OF AUTHORITY ...... 41 2.1 Introduction ...... 41 2.2 Explication of Chaplet 9—10 ...... 42 2.3 Al-TarjÊÍ (Giving Preference)...... 42 2.3.1 Literal Meaning ...... 42 2.3.2 Technical Meaning ...... 43 2.3.3 Comparison of the Two Groups’ Definition ...... 48 2.3.4 Words Substantiating from the Term “al-TarjÊÍ” ...... 48 2.4 Al-TarjÊh As The Point of Departure from Adhering To HawÉ (Whim) And Ignorance (Jahl) ...... 49 2.4.1 Ignorance (jahÉlah) in Giving FatwÉ and in Personal Practice ...... 49 2.4.2 Whim (HawÉ) in Giving FatwÉ and in an Individual’s Practice ...... 50 2.4.3 Non-preferred Opinion (al-MarjËÍ) for Personal Practice in Hanafi and ShafiÑÊ School ...... 51 2.5 Preference by Authorized Jurists (Ahl Al-TarjÊÍ) ...... 51 2.5.1 Hierarchical Levels of the Jurists (ÙabaqÉt al-FuqahÉ) ...... 51 2.5.2 The Hierarchical Levels of the Jurists are Seven or Five? ...... 54 2.5.2.1 Critcism on KamÉl BÉshÉ’s Classification—al-TasbÊÑ .. 55 2.6 Necessity of Verifying the Books and the Quotations...... 57 2.6.1 Wealth Influence in FatwÉ Giving ...... 58 2.6.2 Books Which Should Not Be Referred To In FatwÉ Giving .... 58 2.6.3 Specimens of Error in Quotations ...... 60 2.6.3.1 The Specialty of Radd al-MuÍtÉr in Hanafi School ...... 62 2.6.4 A Famous Work or a Reknown Scholar of the Time is Not a Criterion ...... 63 2.6.5 Giving-FatwÉ of a Self-learned Person...... 64 2.7 FatwÉ And Legal Judgment (QaÌÊ) Should Be According To the Manifest Transmissions (ÚÉhir Al-RiwÉyah) ...... 65 2.7.1 The Grammatical Construction of the Term “ÚÉhir al-RiwÉyah” ...... 65 2.7.2 Preferred Opinions are the Manifest Transmissions ...... 65 2.8 Explication Of Chaplets 11—16 ...... 67 2.8.1 The Term MashÉykh and AÎÍÉb ...... 68 2.8.2 The Time-line of al-MutaqaddimËn (The Early Scholars) and al-Muta’akhkhirËn (The Later Scholars) ...... 69 2.8.3 The Term “Salf” and “Khalf” ...... 69 2.9 Hierarchical Levels of Legal Issues (ÙabaqÉt Al-MasÉ’il) In Hanafi School ...... 70

x 2.9.1 Muhammad al-Shaybani’s al-MabsËt and Its Various Versions ...... 73 2.9.2 Refutation of Ibn KamÉl BÉsha’s Claim that “RiwÉyat al-UÎËl” and ÚÉhir al-RiwÉyah” are Two Separate Terms ...... 74 2.9.2.1 Refutation of Ibn Abidin ...... 76 2.9.3 Al-Siyar ...... 76 2.10 Explication of the Chaplet 17—19 ...... 77 2.10.1 Legal Transmissions of the Cardinal (al-UÎËl) and Non-Cardinal Books ...... 78 2.10.2 The Distinction Between al-SaghÊr and al-KabÊr ...... 78 2.11 Explication of Chaplet 20—22 ...... 79 2.11.1 The Usage of “Shams al-A’immah (the Sun of the Imams)” and Other Titles ...... 81 2.12 Explication of Chaplet 23—25 ...... 83 2.12.1 Mujtahid’s Numerous Opinion in a Legal Issue and Method to Give Preference ...... 83 2.12.2 Distinction between Conflict of Transmission and Conflict of Opinions ...... 84 2.12.3 Causes of Conflict in the Legal Transmissions ...... 85 2.12.3.1 Preferred Opinion and Non-Preferred Legal Transmission ...... 86 2.12.3.2 Status of the Mujtahid’s Opinions in the Case of Non- Preference ...... 87 2.12.3.3 Status of the Mujtahid’s Opinion after Retraction (RujËÑ) ...... 88 2.12.4 The Hanafi School and Some ShafiÑÊ Jurists on Taking Dispute in Arguments (TaÑÉruÌ al-Adillah) as the Cause of Conflict in Opinions (AqwÉl) ...... 88 2.12.5 Opinions of Abu Hanifah’s Companions are His Opinions .... 90 2.12.6 Application of Imam’s Golden Principle “When the Hadith Reaches the Level of Authenticity it will be My Madhab” And Its Requisites ...... 91 2.12.6.1 General Misunderstanding of Abu Hanifah’s Proposition “When the Hadith Reaches the Level of Authenticity it will be My Madhab” ...... 92 2.12.7 Legal Issues Ascribed to the Madhab and Its Founder ...... 93 2.13 Explication of Chaplet 26—29 ...... 95 2.14 Explication of Chaplet 30—33 ...... 98 2.14.1 Ibn Nujaym’s Objection: “How Can the MashÉykhs Give FatwÉ According to the Companions of Abu Hanifah While They are His Muqallids?” ...... 99 2.14.1.1 Qualification (al-Ahliyyah) According to Ibn Nujaym ...... 100 2.14.2 Response of Ibn Abidin to Ibn Nujaym ...... 101 2.14.2.1 The MashÉykh Knew the Sources of the Imam ...... 101 2.14.3 Implication of Abu Hanifah’s Proposition: “No One Is Permitted To Give FatwÉ According To Our Opinion Until He Knows Its Sources” And Understanding TaqlÊd in its Light ...... 102 2.14.3.1 First Implication: The Immediate Meaning ...... 102

xi 2.14.3.2 Second Implication ...... 105 2.14.3.3 Manifestations from al-Hindi’s Discussion ...... 106 2.14.4 The Judicial Hierarchical Level of Ibn al-HummÉm (d. 861 A.H.), QÉsim Ibn QuÏlubugÉ (d. 879 A.H.) and Ibn Nujaym (d. 970 A.H.) ...... 107 2.15 Explication of Chaplet 34—39 ...... 109 2.15.1 Opinion Transmitted from the Later Jurists ...... 110 2.15.2 No Opinion Transmitted from the Later Jurists ...... 110 2.15.3 Two Additional Lines of Conducts by Qadi Khan ...... 110 2.15.4 Learning to Announce “LÉ AdrÊ (I Do Not Know)” ...... 111 2.15.5 Reasons of Not Finding the Explicit Opinions in the Relevant Sources ...... 112 2.15.6 Giving FatwÉ according to the Resembling Legal Issue and Maxims Mentioned in the Text ...... 112 2.16 Explication of Chaplet 40—52 ...... 113 2.17 The MutËn, ShurËÍ, And FatÉwÉ Works And Their Hierarchical Level ...... 115 2.17.1 What are Matan, SharÍ, and FatwÉ Work? ...... 115 2.17.2 Which Work of the three will be Given Preference in the time of Conflict? ...... 116 2.17.3 The Trusted MutËn-Works in Hanafi School ...... 116

CHAPTER THREE: THE FIQH-WORKS, ITS PRESENTATION STYLE OF LEGAL OPINIONS AND TERMINOLOGIES OF GIVING PREFERENCE ...... 122 3.1 Introduction...... 122 3.2 Explication of Chaplet 53—56 ...... 122 3.2.2 Presentation Style of FatÉwÉ QÉÌi Khan and Multaqa al-AbÍur ...... 122 3.2.3 Presentation Style of al-HidÉyah, its Commentaries, Commentaries of Kanz, KÉfi of al-NasafÊ, BadÉÑi al-ØanÉiÑ, and those Works in which Opinions are mentioned with its Arguments ...... 123 3.2.4 Amongst the Three Opinions of a Legal Issue the Middle Opinion will not be Prevalent ...... 123 3.2.5 The Argumented-Opinion is the Prevalent Opinion (RÉjiÍ) ..... 124 3.3 Explication of Chaplet 57—60 ...... 124 3.3.1 The Technical Terms of Rectification ...... 124 3.3.2 The Term ØaÍÊÍ (Correct) is Prevalent over AÎaÍÍ (More-Correct) ...... 125 3.3.3 Seven Conclusive Rules Pertaining to Rectification-Terms ..... 126 3.4 Explication of Chaplet 61—67 ...... 127 3.4.1 Ten Factors of Giving Preference (MurajjiÍ) to Rectified Opinions ...... 127

CHAPTER FOUR: THE INDIRECT-MEANING OF WORDS (AL-MAFHÕM) SUPPRESSED IN THE LEGAL TRANSMISSIONS ...... 130 4.1 Introduction...... 130 4.2 Explication of Chaplet 68 ...... 130

xii 4.2.1 Defining MafhËm ...... 130 4.2.1.1 The Definition ...... 131 4.2.1.2 Is This Definition a ×add or Rasm ...... 132 4.2.1.3 Appropriate Translation of the term “MafhËm” ...... 132 4.3 Where Does Indirect-Meaning Stand in the Classifications of Word Indication (DalÉlat Al-LafÐ) In the Opinion Of The Legal Schools ...... 132 4.3.1 Classification of the Hanafi and the Majority—ShafiÑÊ—Legal Schools ...... 132 4.3.1.1 Indication mode of Words according to the Hanafi Legal School ...... 133 4.3.1.2 Classifying Indication mode of Words according to the Major Legal Schools ...... 134 4.3.1.2.1 Classification of MafhËm (Indirect Meaning) ...... 135 4.3.1.3 Reconciliation of the Two Classifications ...... 136 4.4 In-Concordant Meanings in the Human Mutual Communications, Their Customs, Transactions, and Rational Arguments ...... 137 4.5 In-Concordant Meanings in Legal-Transmissions ...... 138 4.5.1 Are Propositions of the Companions Part of Human Utterance or Prophetic Tradition? ...... 138 4.5.1.1 Rational Reasoning of the Companions is not Part of Divine Text ...... 139 4.6 Consideration of In-Concordant Meaning and the Conflict within the Hanafi Legal School ...... 140 4.6.2 Muhammad al-Shaybani’s Consideration of In-concordant Meanings in the Divine Texts (NuÎËÎ al-SharÑiyyah) And the Later Jurists’ Position ...... 140 4.6.2.1 In-concordant meaning of the Prophetic Tradition according to al-Shaybani ...... 141 4.6.2.2 In-concordant meaning of the Army Head’s Utterance according to al-Shaybani ...... 141 4.6.3 Reconciling Ibn AmÊr al-×Éjj (d. 879 A.H.) and Al-Shaybani Via al-SarakhsÊ (d. 473 A.H.) ...... 142 4.7 Ibn Abidin’s Summarization and Response ...... 143 4.7.1 Consideration of In-concordant meaning in Legal Transmissions is not a Universal Principle ...... 144 4.7.2 Ibn Abidin’s Proposition: “If not opposed to a Clear Established View” ...... 145

CHAPTER FIVE: ROLE OF ÑURF (CUSTOM) AND ÑÓDAH (HABIT) IN IFTÓ’ ...... 146 5.1 Explication of Chaplet 69 ...... 146 5.1.1 Importance of Custom in Fatwa-Giving (IftÉ’) and its Necessity ...... 146 5.2 Definition and the Classification of ÑUrf in the Works of Ibn ÑÓbidin ...... 150 5.2.1 The Definitions...... 150 5.2.2 Classification of ÑUrf ...... 153 5.2.3 Values of General and Special Customs ...... 154 5.2.4 Values of Verbal and Actual Customs ...... 158

xiii 5.3 Recognition and Role of ÑUrf in Islamic Jurisprudence ...... 159 5.4 Fatwa, Mufti and Custom ...... 168 5.4.1 Importance of Following Recent Custom ...... 169 5.4.2 Importance of Knowing the Accepted Custom ...... 170 5.4.3 Observation of Public Interest (al-MaÎlaÍat) in al-IftÉ’ ...... 172 5.4.4 Importance of Knowing the People, Time and Their Situations (Al-AÍwÉl) ...... 173 5.4.5 Observation of Custom in al-IftÉ’ provided it does not Oppose the SharÊÑah ...... 175 5.5 Outcome Of Ibn Abidin’s Discussion of Custom (ÑUrf) And Its Role In FatwÉ-Giving ...... 177

CHAPTER SIX: USING WEAK OPINION IN GIVING-FATWÓ BECAUSE OF NECESSITY ...... 181 6.1 Explication Of Chaplet 70—74 ...... 181 6.1.1 What is Weak Opinion? ...... 181 6.1.2 Practice and FatwÉ according to the Weak Opinion ...... 182 6.1.2.1 Position of Hanafi and ShÉfiÑÊ Legal School ...... 182 6.1.2.2 Ibn Abidin’s Objection on Al-ShuranbulÉli and its Solution ...... 182 6.1.2.3 Ibn Abidin’s Objection on al-SubkÊ ...... 183 6.2 Weak Opinion in FatwÉ-Giving and Personal Practice Because of Necessity ...... 183 6.2.1 Usage of Weak Opinion because of Necessity in Hanafi School ...... 184 6.2.1.1 Using Weak Opinion in FatwÉ-Giving for the Destitute (al-muÌtar) ...... 184 6.2.2 Using Weak Opinions for Personal Legal Issues ...... 185 6.2.3 QÉÌi’s Judgment according to Weak Opinion and according to other Madhab ...... 187 6.2.3.1 The Conflict between Abu Hanifah and His Companions ...... 187

CONCLUSION ...... 189 Recommendations...... 197

PART TWO: TRANSLATION OF SHAR× ÑUQÕD RASM AL-MUFTÔ ..... 199

PART THREE: THE EDITED ARABIC TEXT WITH ANNOTATED NOTES ...... 299 List of Abridged Titles of Works in the Text and Its Complete Information ...... 299 List of Abridged Names of Scholars in the Text and its Complete Information ...... 312 List of Symbols used by Ibn Abidin in the Text and its Details ...... 319

BIBLIOGRAPHY ...... 390

APPENDICES ...... 397

xiv 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

PART ONE ANALYSIS AND DISCUSSION REFLECTING ON THE SHAR× ÑUQÕD RASM AL-MUFTÔ TEXT

INTRODUCTION

0.1 FATWÓ AND RASM AL-MUFTI

The word fatwÉ and futyÉ means illustration of unsolved question or a solution for a law-related-issue, which occurred recently (tabyÊn al-mushkil min al-aÍkÉm).1 And since, fatwÉ deals with recent occurring matters, it is also known as Occurrences (al- wÉqiÑÉt). Looking at what have been said briefly about fatwa, it is the solution of issues arising in a changing world. The changing time and the developments demanded by modern life style lead the new generation of Muslims with a myriad of issues. To encompass these issues in a quest to find Islamic responses for them, one may take recourse to IftÉÒ (the institution of giving fatwa).2 The increasing number of mustaftÊs—people who seek fatwÉ— and number of mustaftÉ minhu—issues to be consulted—logically demand the raise in the number of muftis. To see muftis in great numbers on line, websites, TV programs, radios,3 in dÉr al-iftÉs, etc. officially or in private capacity is satisfactory, but to observe their methodology of deducing legal rulings and dispensing it as fatwÉ is not always the same. The inconsistencies in their methodologies of giving fatwÉ open the opportunity to study the long-undiscussed subject of rasm al-mufti.

Rasm al-mufti is collection of principles and maxims, by which a mufti or qÉÌi does his enquiry and research of an issue (mas’alah fiqhiyah); and if there is conflict

1 The definition of the term FatwÉ and its co-relation with Fiqh is discussed thoroughly under 1.3.3 of this chapter. 2 See Aharon Layish, The fatwa as an instrument of accommodation, Islamic Legal Interpretation muftis and their fatwas, London: Harvard University Press, 1996, 270; See concepts of fatwa under the entry FatwÉ in The Oxford Encyclopedia of the Modern Islamic World, ed. John L. Esposito, Oxford: Oxford University Press, 1995, 8, vol.2. 3 See Brinkley Messick, Media muftis: radio fatwas in Yemen, Islamic Legal Interpretation muftis and their fatwas, London: Harvard University Press, 1996, 310; S. Nizamuddin Ahmad, FatwÉs of condemnation: Islam and the limits of dissent, Kuala Lumpur: International Institute of Islamic thought and civilization (ISTAC), IIUM, 48.

in the opinions of the jurists, a mufti or qÉÌi on the basis of these principles and maxims gives preference (tarjÊÍ) to one of those opinions.4 Rasm al-mufti treatises normally recorded methodologies (uÎËl) muftis require in dispensing their fatwas, or recorded methodologies a mufti utilized in dispensing his fatwas. Rasms were either written separately as books in itself or were incorporated as preface/introduction

(muqaddimah) to the fatwÉ-collections as can be witnessed by the preface of al-JÉmiÑ al-SaghÊr of Muhammad Ibn al-Hasan al-ShaibÉni. In an edition published with the super-commentary of ÑAbd al-×ayy al-Laknawi, a rasm written by the latter for the muftis and mustaftis with the title al-NÉfiÑ al-KabÊr liman yutÉliÑ al-JÉmi al-SaghÊr was attached in the starting of the book.5 Ibn Abidin’s Sharh ÑUqËd Rasm al-Mufti is a good example of Rasm work as a separate book standing on its own.

0.1.1 Ibn Abidin’s Rasm al-Mufti and its Importance

Ibn ÑÓbidin is well known in the world of fatwas especially Hanafi world, because of his magnum opus al-×Éshiyah also known as Radd al-MuÍtÉr ÑalÉ Durr al-MukhtÉr

SharÍ TanwÊr al-AbÎÉr. He was the amÊn al-fatwa of 13th century (A.H.) Damascus, an authorized representative and assistant of the Mufti in Ottoman government system. The rasm of his fatÉwÉ he collected in al-×Éshiyah is only explicated where he intended. As the style adopted in general books of fatÉwa collection was not to explicate the rasm the mufti uses in drafting a fatwÉ, Ibn Abidin did not reveal his rasm in his magnum opus. The places where he did explain portions of his rasm are engulfed within the fatÉwÉ and legal discussions in a passing remark style. Even the

4 This definition of rasm al-mufti is defined by the Grand mufti of Pakistan, Mufti Muhammad RafÊÑ UthmÉni. See, Muhammad Abd al-Bar, Dars sharÍ ÑuqËd rasm al-mufti, (Karachi: IdÉrat al-maÑÉrif, 2000), 13. For classification and co-relation between rasm and uÎËl see discussion “1.4: Rasm and UÎËl” in chapter 1 of this work. 5 Muhammad Ibn al-Hasan al-Shaybani, al-Jami al-Saghir (Beirut: ÑÓlam al-Kutub, 1986), 5- 66.

table of contents of the published version of al-×Éshiyah does not pinpoint the pages where rasm related issues are discussed. Only person who could find his hidden rasms are the ones who read al-×Éshiyah from cover to cover. Without any exaggeration, this is not in capacity of every human being to read line to line of all 14 volumes of al-×Éshiyah. In order to avoid this torture the best resort available to know the rasm of the mufti is to study Ibn Abidin’s sharÍ ÑuqËd rasm al-mufti, which this research is all about. Ibn ÑÓbidin composed seventy four chaplets on methodology to give fatwÉ naming them ÑUqËd Rasm al-Mufti (chaplets on mufti’s instruments).6

Then to explicate these chaplets Ibn ÑÓbidin wrote a treatise naming it Sharh ÑUqËd

Rasm al-Mufti (also known as SharÍ manÐËmah). He achieved the accomplishment of the treatise in the month of RabÊÑ al-ThÉnÊ of 1243 A.H.7 Ibn Abidin himself in the preface of al-×Éshiyah opened a discussion with the topic “MaÏlab: Rasm al-Mufti” and after brief discussion he promptly said: “And the complete version of these discussions are in my chaplets on rasm of the mufti (manÐËmatinÉ fi rasm al-mufti) and its commentary (wa fi sharÍihÉ).8

It is true that the methodologies Ibn ÑÓbidin included in his sharÍ ÑuqËd rasm al-mufti are not the A-Z on the methodologies of giving fatwÉ, but the treatise include those methodologies which muftis need on day to day basis in their office (dÉrul iftÉ’).

6 Mohammad Amīn Ibn ‘Ābidin al-Shāmi, Sharh ‘uqūd rasm al-mufti, (Islamabad: Maktabah Bayt al- Qalam, N.D.); MajmËÑ RasÉil Ibn ÑÓbidÊn, (Lahore: Suhail Academy, 1976), 10, vol.1. MajmËÑ RasÉil Ibn ÑÓbidÊn is collection of Ibn ÑÓbidin’s thirty one treatises and Sharh ‘uqūd rasm al-mufti is the second treatise. 7 MajmËÑ RasÉil Ibn ÑÓbidÊn, 52, vol.1. 8 Ibn Abidin, Muhammad Amin Ibn Umar, ×Éshiyat Ibn ÑÓbidÊn: Radd al-MuÍtÉr Ñala al-Durr al- MukhtÉr, edited by HusÉm al-DÊn Ibn Muhammad ØÉliÍ FarfËr (Dimashq: Dar al-ThaqÉfah wa al- TurÉth, 1st edition, 2000), vol. 1, 229.

0.2 OBJECTIVE (GHARAÖ) OF THIS STUDY

Objectives9 on which this research manoeuvres are:

 To study and present fatwa-giving-methodology of the Hanafi Legal

School and its importance to scholars in position to give fatwÉ in

contemporary time.

 To study and present presentation and writing styles of the early and later

Hanafi jurists used in their works.

 To study and present the legal-terms used in giving-preference to an

opinion.

 To understand the relationship a mufti should have with his society.

 To know how much a mufti can compromise while dealing with necessity

and weak opinions’ of a mujtahid.

 To provide a base to develop methods of giving-fatwÉ for the

contemporary muftis.

 To initiate studies of fatwÉ-giving methods of various jurists and legal-

schools.

0.3 LITERATURE REVIEW

0.3.1 Types of Previous Studies on FatwÉ

It is noteworthy that both Muslim and Oriental scholars’ attention has caught the subject of fatwa. Books, presentations, papers in periodical journals, websites, and blogs are accelerating number wise on the subject. These efforts dwell around studies

9 In classical Islamic works, the objectives used to be classified into general and special objectives (al- gharaÌ al-ÑÉmm wa al-gharaÌ al-khÉÎÎ). Basing on this, the special objective of this work is to achieve acceptance (raÌÉ’) of al-Mighty Allah, which is the success of this world and Hereafter. The objectives pronounced in the text are the general objectives.

of fatwa of a certain time, mufti of a specific place or certain time; role fatwa plays in contemporary time and so on. On the other hand, looking at the devotion to study fatwa-giving-methodology (uÎËl al-iftÉ’) as a full-length-works is rare to find.10

One of the most varied publications is Islamic Legal Interpretation: muftis and their fatwas edited by Muhammad Khalid Masud, Brinkley Messick and David S.

Powers. As the work is anthology of articles, collecting twenty eight papers that dwell around fatwa-studies, the work hardly touches the topic of methodology.11

Jakob Skovgaard-Peterson’s Defining Islam for the Egyptian state: muftis and fatwas of the dÉr al-iftÉ’ is more towards a historical study of institutions in Egypt giving fatwÉ and the people in charge of it.12

Haim Gerber’s Rigidity versus openness in late classical Islamic law: the case study of the seventeenth-century Palestine mufti Khayr al-DÊn al-RamlÊ studies the legal thought of Khayr al-DÊn al-RamlÊ (1585-1671) and the extent of flexibility in his fatwas compared to strict sense of taqlÊd.13

Wael Hallaq’s From fatwas to furËÑ: growth and change in Islamic substantive law discusses the transformation of fatwa to the level of furËÑ and the process it takes.14

It can be seen that these works mentioned here and other works in the same line either study the fatwa or writer of the fatwÉ the mufti. The present work breaks away from this fashion and studies the methodology (rasm) needed in crafting a fatwa.

10 Saiyad Nizamuddin Ahmad, FatwÉs of condemnation: Islam and the limits of dissent, (Kuala Lumpur: International Institute of Islamic Thought and Civilization (ISTAC), IIUM), 7-10. 11 Ibid., 10. 12 Jakob Skovgaard-Peterson, Defining Islam for the Egyptian state: muftis and fatwas of the dar al- iftÉ’, (Leiden: Brill, 1997). 13 Haim Gerber, “Rigidity versus openness in late classical Islamic law: the case study of the seventeenth-century Palestinian mufti Khayr al-DÊn al-RamlÊ,” Islamic Law and Society, vol.5, no.2 (1998): 165. 14 Wael Hallaq, “From fatwas to furËÑ: growth and change in Islamic substantive law,” Islamic Law and Society, vol.1, no.1 (1994): 29.

0.3.2 Narrowing the Scope of Studying Rasm Al-Mufti

If one is suppose to combine the previous types of studies on fatwÉ as mentioned above, the study will be too broad. To narrow the scope, one can concentrate on studying the individual muftis, single type of legal subject (mas’alah), or fatÉwÉ of a constrained time-period. Similarly, the study of rasm al-mufti such as Ibn ÑÓbidin’s

SharÍ ÑuqËd rasm al-muftÊ, the scope is broad if one is studying the methodologies of different muftis in one time, their madhabs (legal schools), and conflicts. To narrow the scope of rasm al-mufti studies one can concentrate on one mufti’s methodology, or on methodology of one legal school. This research dedicates itself to study the treatise of Ibn ÑÓbidÊn al-ShÉmi on rasm al-mufti concerntrating on the Hanafi methodology of giving fatwÉ.

0.3.3 Previous Studies and Works on Ibn Abidin’s SharÍ ÑUqËd Rasm al-MuftÊ

0.3.3.1 Works in English

The researcher will be definitely wrong if he claims that no previous studies on SharÍ

ÑUqËd Rasm al-MuftÊ was ever done. As far as only the chaplets are concerned,

Norman Calder translated the chaplets in English which was published by the Bulletin of the School of Oriental and African Studies, volume 63, issue no. 2 in the year 2000.

When it came to explication of the chaplets, Norman Calder presented his own scholarly explications, meaning that Ibn Abidin’s own explication—SharÍ ÑuqËd rasm al-muftÊ—was not presented in English.15

15 Norman Calder, “The ÑUqËd Rasm al-MuftÊ of Ibn Abidin,” in Bulletin of the Oriental and African Studies, vol. 63 (2) 2000: 215—288.

0.3.3.2 Works in Arabic

Coming back to Arabic versions of the treatise, the treatise was published in 1976 as part of the MajmËÑ RasÉ’il Ibn ÑAbidÊn by Suhayl Academy Lahore, not decorated with any editor. In this anthological work, SharÍ ÑUqËd Rasm al-MuftÊ was placed second amongst thirty-one treatises of Ibn ÑAbidÊn. Then the treatise was published independently by Maktabah Bayt al-Qalam, without any date. The editor Muhammad

Attaqqi broke the continuous-flowing text with his sub-titles. These sub-titles were not within the square parentheses, which confused many readers who did not have access to MajmËÑ RasÉ’il Ibn ÑAbidÊn in construing the sub-titles as originally authored by

Ibn Abidin himself. Attaqi’s edition as requirement of the present academic milieu did not contribute by providing extensive notes on the abridged-names of books and short name of jurists mentioned in the text. Also the edition did not provide cross-references of the quotations Ibn Abidin quoted from other works. With these minor but important deficiencies this edition is good for reading, but not supportive in academic research.

Then a better edition of independent Arabic SharÍ ÑuqËd rasm al-muftÊ was published by al-Rashid (al-Waqf), Karachi in 2005. Shaykh Abu Lubabah the mufti at

Dar al-Ifta wa al-Irshad, Karachi in this edition added subtitles starting with the terminology “maÏlab (pursuit)” the very same term used by Ibn Abidin in his al-×Éshiyah. In the footnotes he edited and added the documentary notes of his teacher Mufti MuÐaffar ×usayan al-MaÐÉharÊ. Then he edited and attached the list of books and jurists with their complete names at the end of the treatise extracted by

AÐhar ×usayn al-AjrÉrawÊ. So far this is the best version of Arabic independent SharÍ

ÑuqËd rasm al-muftÊ produced, but the work would have been an academic-treasure if the editor would have documented the famous works Ibn Abidin referred to with volume and page numbers, and publication details. Many works Ibn Abidin referred to

or quoted were manuscripts then, which now are available in edited and published versions. In the instances where the documentary notes have reference to a work with volume and page number, the editor did not provide the edition, year of publication and publishers’ names.

0.3.3.3 Works in Urdu

The well-known Urdu translation of SharÍ ÑuqËd rasm al-muftÊ is Aap Fatwa Kaise

Dein (How you should give Fatwa?) by Shaykh Mufti SaÑÊd AÍmad PÉlan PËri Dar al-ÑUlËm Deoband, India. The work was published by Maktabah NuÑmÉniyah,

Karachi in 1425 A.H corresponding to 2004. The work is an excellent translation with extra notes where necessary. The author also provided complete information of books and jurists Ibn Abidin mentioned briefly at the end of the translation. Since the author was referring to his personal collection of works to provide citations to Ibn Abidin’s references, he only mentioned the volume and page number of the books.

0.3.3.4 Points of Distinction

Looking at the previous works on SharÍ ÑuqËd rasm al-muftÊ mentioned above, points which draw line of distinction between those works and this research work can be construed. And the points are:

1. This work is a complete translation of the treatise including the chaplets

and Ibn Abidin’s commentary in English.

2. This work presents the citation of the books and quotations in Ibn Abidin’s

text with necessary information suitable for the contemporary academic

purposes such as page numbers, volume numbers, editor’s name,

publisher’s name, edition, and year of publication.

3. Instead of inserting self-made subtitles to the text of the treatise, the

researcher divided the Arabic Text into chapters with titles relevant to the

theme of Ibn Abidin’s chaplets and commentary. He did not disturb the

flow of the original text.

4. The researcher wrote his analysis separately in order to avoid disturbance

to the text with suitable subtitles.

Other details can be seen while the methodology of this research is presented below.

0.4 METHODOLOGY OF RESEARCH

The researcher went through three major stages to complete this research. First the researcher re-typed and edited the Arabic text basing on the original 1976 text.

Second, the researcher translated the text into English. And third, he analysed the text.

The three stages in detail are as follows:

0.4.1 Researcher’s Edition of the Text

For the purpose of research and presentation in the realm of contemporary scholarly works the researcher re-typed the 1976 stamp printed text of the treatise. He broke the old style continuous-text into paragraphs, block-texts, numbered and bulleted texts.

The most difficult part of the treatise faced by the scholars who study and teach

SharÍ ÑuqËd rasm al-muftÊ is to sort out the starting and the ending point of Ibn

Abidin’s quotations especially when he includes quotations within quotations. To overcome this adversity, the researcher either secured the quotations within quotation marks or framed them into block-texts. And then he numbered the paragraphs within square brackets, where the numbering re-starts at every new chapter.