Archive for the ‘Fiqh’ Category

not from sunnah or against the sunnah

There is a matter that most people do not understand. An act’s “not being from sunnah” is one thing and its being “against sunnah” is another. These two are different. For instance, using electronic appliances is not from sunnah. Now if a person says using electricity or using electric fan is “against sunnah” it will be wrong. An act shall be termed as “against the sunnah” if the Messenger of Allah ﷺ had advised doing it even if only as a recommendation (mustahab). In such a case if a person leaves that act and does otherwise it shall be “against the sunnah.” And whatever act will be “against sunnah” it will be reprehensible (makruh) at least. But if there is something that the Messenger of Allah ﷺ did not do and a person does that it shall not be termed as something “against the sunnah.” For instance, it is reported in a hadith that never was a well baked thin-bread (khubz) prepared for the Messenger of Allah ﷺ nor did he eat it in a small plate (sukrujah)[1]. It does not mean eating thin-bread or eating it in a small plate is “against sunnah.” Rather, it shall be said that the act is “not from sunnah” and an act’s being “not from sunnah” does not necessitate its being “against the sunnah” … Therefore, everything should be understood in its due context and it is not right to exaggerate it.

— Usmani, Muhammad Taqi, Taqrir Tirmidhi, (Karachi: Memon Books, 1999) Vol.2, 361-362

[1] Sahih Bukhari, Hadith 5386, 5415

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reference not found

One of the first lessons that all I learnt from all my teachers of Islamic sciences is the great maxim, “Our opinion is right with the possibility of being wrong and that of others (other recognized schools) is wrong with the possibility of it being right.” I was always told that it refers to furoo’ (subsidiary issues) only.

Lately, however, I observed some liberals using it to speak for producing space for differences on even the fundamentals. Knowing this I decided to search for the original statement.

Khalid Zaheer attributes to Imam al-Shafi’i (d. 204 AH)  and puts it the following way on his site:

“I am convinced about the veracity of my opinions, but I do consider it likely that they may turn out to be incorrect. Likewise, I am convinced about the incorrectness of the views different from mine, but I do concede the possibility that they may turn out to be correct.” — Imam Shafa’i

Many others have also attributed to it to the Imam.

Firstly, I failed to find it attributed to Imam al-Shafi’i in any classical work . The statement was mentioned by al-Hasfaki (d. 1088 AH) and others but the earliest scholar to whom I could trace it is al-Nasafi. Ibn Nujaym al-Hanafi (d.970 AH) in his al-Ashba wal Naza’ir writes:

قال في آخر المصفى: إذا سئلنا عن مذهبنا ومذهب مخالفينا في الفروع، يجب علينا أن نجيب بأن مذهبنا صواب يحتمل الخطأ ومذهب مخالفينا خطأ يحتمل الصواب؛وإذا سئلنا عن معتقدنا ومعتقد خصومنا في العقائد يجب علينا أن نقول: الحق ما نحن عليه والباطل ما عليه خصومنا هكذا نقل عن المشايخ رحمهم الله تعالى


(Al-Nasafi) said at the end of al-Musaffa: “When we are asked regarding our opinion and the opinions of those who differ with us in the issues of secondary nature (furoo’ i.e. issues of fiqh as are differed upon by the mujtahid imams), it is upon us to say that our opinion is correct with the possibility of being wrong and the opinion of those who differ with us is a mistake with the possibility of being correct,and when we are asked about our beliefs and those  of the ones who differ with us regarding them it is upon us to say that truth is on what we stand and falsehood is what on which our opponents are. This is so reported from our teachers, may Allah have mercy upon them.”

See: Al-Ashbah wal-Naza’ir, (Beirut: Dar al-Kotob al-Ilmiyya, 1999) vol.1 p.330

Mark the contrast. The red is about furoo` (subsidiary issues); the blue is about usool-al-din (fundamentals) where differences are not tolerable e.g. hadith as a primary source of law and the first source of Qur’anic commentary.

Before Ibn Nujaym, Ibn Humam (d. 861 AH) mentioned it but Ibn Nujaym traces it back to Abu al-Barakaat al-Nasafi (d.710 AH). To the best of my knowledge this statement cannot be attributed to Imam al-Shafi’i nor is it traced back to anyone before al-Nasafi. If anyone has a due reference suggesting to the contrary, kindly do share.

What further supports this is that Ibn Hajr al-Haithmi (d. 974), a well known scholar of Shafi’i school, discusses the statement in some detail at the end of his Fatawa al-Fiqhiyya yet he does not attribute it to Imam al-Shafi’i.

And Allah knows the best!

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Whenever the discussion on Islam and the modern world issues comes up we invariably hear a comment, “These mullahs are against any kind of advancement. When loudspeaker was invented they said it is haram to use it.” Having read the works of the “mullahs” I have known that it is wrong to say that at least the learned and well reputed among of the ulema were/are against technology. Actually what they are against is not the use of technology but the blind imitation of West in its culture in the name of advancement. (Suggested reading, Mufti Taqi Usmani’s “Islam and Modernism”)

In this backdrop what perplexed me the most was the suggestion that ulema once condemned the use of loudspeakers as haraam. I always wanted to know what really happened and why? How the fatwa was changed overtime? What do the scholars who were part of the process of the change in fatwa say? And how do they feel about their earlier verdict?

Lately, I found answer to all these questions and today I mean to share with you the same.

Yes, the fatwa declaring use of loudspeakers as haraam was given and it was given by a well-known scholar and jurist, Maulana Ashraf Ali Thanwi. Three of his fatwas on the subject are given in the first volume of Imdad al-Fatawa- the collection of religious verdicts given by him. It was compiled by his student Mufti Muhammad Shafi’. Towards the end of the volume the compiler, Mufti Muhammad Shafi’, in an addendum, explains the background, basis and reasons for eventual change in the verdict. Following is its summary.

First fatwa on the subject was given in Ramadan 1346 AH (i.e.  Feb. 1928)[1] in which Maulana Thanwi opined that its usage is altogether haraam.  Shortly thereafter the same opinion was repeated in Zil Hijjah 1346 AH (May 1928 CE). According to Mufti Shafi’ this opinion was given in the early days of instrument’s introduction (in the subcontinent) when it was not widely known. The opinion was based on the presumption that it was something like Gramophone  that was then used almost exclusively for songs and music. Moreover, since the instrument was not generally used and was mostly unknown to the people no need was felt to seek to probe deeper into the details of it.

The basic premise for declaring it unlawful for use in acts of ritual worship was that confusion on the actual working of the instrument. Maulana Thanwi and other scholars were not clear whether it simply amplifies the sound or first records it and then transmits it and to this day scholars maintain that prayers are not valid with recorded sound[2]. (It is pertinent to mention that even when Maulana Thanwi gave this opinion Mualana Shabbir Ahmad Uthmani even at that stage did not agree that prayers are nullified with its use). They set to seek the help of different people they thought were well versed in these matters. The names and replies of those people are preserved in the footnotes in Imdad al-Fatawa vol.1 pp.685-687. The opinions on the working of the instrument were sought included:

1-  Syed Shabbir Ali, M.A., Professor Science Dept., Aligarh Muslim University

2-  Burj Nandar, B.A., BSc. Science Alexander High School, Bhopal

Names of others are not specifically mentioned.

Not to say that they were some real authorities but it does show the concern and attitude of Maulana towards the issue. He did take the trouble of asking the people who were in a better position to comment on the issue he faced. Mark the fact that opinion of a Hindu was also considered. However, the confusion persisted (considering the responses he got) and Maulana Thanwi then opined that even though ritual prayers cannot be out rightly declared null and void still one needs to avoid praying with the use of this instrument. (Imdad al-Fatawa, vol.1 p.685 n.2)

In Muharram 1357 AH (March 1938 CE) in response to a detailed question about some modern instruments in which their true nature and scope of use was brought to his notice Maulana Thanwi opined that it is permissible to use it in ordinary sermons and speeches. But he maintained that it was impermissible to use it in ritual prayers (salah) and ritual sermons (khutbas of Fridays and ‘Eid) and as a reference he referred to his fatwa of Zil Hijjah 1346 AH and wrote, “All this research is written as per personal information. If someone knows more and or something different he should follow his own research and if he intimates us he will be rewarded. And Allah knows best and His knowledge is most perfect and most sound.” (Imdad al-Fatawa, vol.1 p.691)

After the death of Maulana Thanwi his disciple and student Mufti Shafi’ continued to give verdict according to his opinion. However, after the creation of Pakistan he sent the same query to experts at Radio Pakistan. The unanimous response was that the sound transmitted was simply amplified and it was not first recorded. Mufti Shafi’ writes that this actually bulldozed the entire basis of the opinion of its impermissibility of its use in prayers. Thereafter he wrote his treatise on the subject of use of the loudspeaker in Sha’ban 1372 AH and it was revised later in 1382 AH.

Here it is critical to understand the position of a mufti. He is to give a very careful opinion and his words have implications not only for the people but most importantly for himself for in a way he is responsible for any outcome of his verdict. The issue most especially related to the validity of the prayers- the most important act of worship in Islam. Approach of ulema was very practical and careful for they forbade people from using something that could, considering the doubts in their minds, possibly affect the validity of prayers while they dwelt on seeking clarity. And as the things became clear they changed their opinion.

Points to note:

1- The first fatwa was based on limited and mistaken information and that too in the absence of any pressing need to probe in to what was then a little known device.

2- To clarify the details of the working of the instrument the very reasonable attitude of consulting the experts was adopted and they did not shy away from taking the input of a Hindu as well.

3- Once the nature of the instrument was clear the scholars stopped declaring its use unlawful for activities other than ritual worship (ibadat).

4- However, they continued to forbid its use in ibadat because details of its working were not clear and ibadat require extra care in following the original rules. Nevertheless, ulema were open to more insight and asked for help in bringing clarity to the issue.

5- Later, however when the experts gave the unanimous opinion that the instrument does not record and then transmit the voice rather it simply amplifies the sound, scholars did not shy away from revising the verdict.

 No matter how weird it now appears in the hindsight but putting one in their shoes one has to accept that the approach of ulema was very meticulous. They were careful but they were not stubborn and were open to new information and adopted the right course of consulting the experts to seek clarity on the actual working of the instrument and accordingly revised their opinion.

Unless one thinks with a borrowed brain and wants Muslims to adopt everything and anything new even when it relates to specific ritual ibadat one has to appreciate the approach adopted by the ulema.

Download Link for Imdad al-Fatawa vol.1

[1] The Gregorian dates corresponding to Hijri dates are given only by the way of approximation.

[2] See for instance Shaykh Faraz Rabbani fatwa, “Tahajjud Prayer: Listening to recorded recitation

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Islamic Laws

In this age questioning and objecting to Islamic principles is the best pastime of the ‘educated’ yet intellectually impaired. They fail to understand Islam’s approach and vent the anger for their ignorance on the whoever they can – the idea or the people who stand for it.

1) Hudood (prescribed punishments) in Islam are indeed very strict and the mess other legal traditions have created after failing to check the crimes and dealing with the convicts supports the idea of having strict punishments. (the case of the rapist and serial killer Clifford Olson is a classical example of what confused legal traditions can lead to.)

2) Islamic law of witnesses is also very strict. This is especially true for cases involving sex offenses (in which case carrying out hudood requires 4 witnesses) as it relates to two sensitive issues simultaneously 1) Life 2) Honor.  In fact it won’t be out of place to say that punishment based on witnesses is extremely rare. When the skeptics say that having four witnesses is extremely difficult they make no revelation.

A classical jurist stated:

لم ينقل عن السلف ثبوت الزنا عند الإمام بالشهادة، إذ رؤية أربعة رجال عدول على الوصف المذكور كالميل في المكحلة كما في الكلاب في غاية الندرة

“Establishment of the proof of adultery in legal proceedings based on witnesses is not reported from the predecessors (salaf), because it is extremely rare for four trustworthy men to witness it in the required way of seeing it like collyrium stick in its case as it happens among dogs .”[1]

3) Islam by the virtue of its very nature of being a religion promising salvation in the Hereafter inspires people to confess the offenses committed so that they may be free of blame in the next world. This ensures some practical examples of the execution of the prescribed punishments (hudood) that duly serve the purpose of deterrence against crimes. The cases of Ghamidia and Ma’iz al-Aslami who were stoned to death by the Prophet ﷺ are perfect examples.[2]

4) In any case 2) does not entail an offender can go unpunished in the absence of 4 witnesses because the whole scheme of ta’zirat (discretionary punishments) is there. Such punishments can be given for any other evidence including lesser number of witnesses, DNA or any other circumstantial evidence that convinces a judge of the accused being a culprit.

If, for example, a person is accused of rape repeatedly and every time crime is proven through DNA and similar proofs alone, the judge -according to what I understand as the strongest opinion[3]– can even give him capital punishment (though it cannot be stoning to death). Or a judge may even go for such strict discretionary punishment as a deterrence when the frequency of the crime gets on the rise.

5) All this collectively make hudood the ultimate defense against social evils. If 2) and 3) are religiously observed no one will be punished unjustly and 4) will have to be invoked only rarely because seeing someone stoned to death or even lashed in public will tame the animal within most people. This is why the Prophet ﷺ said,

إقامة حد من حدود الله، خير من مطر أربعين ليلة في بلاد الله عز وجل

“Carrying out one of  the  legal  punishments prescribed by Allah  is better than forty nights of (blissful) rain in the lands of Allah.”[4]


[1] al-Baabarti, Abu ‘Abdullah Akmal ad-Deen, al-‘Inayah Sharh al-Hidayah, (Beirut: Dar al-Fekr, n.d.) vol.5, 278

[2] Muslim bin Hajjaj, as-Sahih, (Riyadh: Maktaba Dar-us-Salam, 2007) Hadith 4432 (23-1695)

[3] This is the opinion of the jurists of the Hanafi school (at least).

[4] Ibn Majah, as-Sunan, (Beirut: Dar al-Jeel, 1418 AH) Hadith 2537. Classified as Hasan by al-Albani.

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Students of fiqh will surely appreciate the following important observation made by a wonderful scholar.

Imam al-Nawawi (d. 676 AH) writes:

 المختار الذي عليه الأكثرون والمحققون من الأصوليين أن لفظة كان لا يلزم منها الدوام ولا التكرار وإنما هي فعل ماض يدل على وقوعه مرة فإن دل دليل على التكرار عمل به وإلا فلا تقتضيه بوضعها وقد قالت عائشة رضي الله عنها كنت أطيب رسول الله صلى الله عليه وسلم لحله قبل أن يطوف ومعلوم أنه صلى الله عليه وسلم لم يحج بعد أن صحبته عائشة إلا حجة واحدة وهي حجة الوداع فاستعملت كان في مرة واحدة ولا يقال لعلها طيبته في إحرامه بعمرة لأن المعتمر لا يحل له الطيب قبل الطواف بالإجماع فثبت أنها استعملت كان في مرة واحدة كما قاله الأصوليون

“And the preferred view held by the majority of researchers and al-usuliyin (scholars of juristic methodology) is that the word كان (kaana) does not necessarily imply persistence and repetition. It is about past tense signifying the occurrence for once. If (independent) evidence proves repetition (it may be taken in that sense) otherwise for itself the word does not imply this. Aisha said: “I applied perfume (kuntu utayyibu) on the shirt of the Messenger of Allah ﷺ before he performed tawaf (circumambulation of the Ka’ba),” and it is known that after being with Aisha he never made the pilgrimage except once i.e. the Final Pilgrimage. She used كان (kaana) about a singular happening. And it cannot be said that she may have applied perfume in his ihram for ‘umrah because by consensus it is not permitted for the one performing ‘umrah to apply perfume before tawaf. Therefore it is confirmed that she used كان (kaana) to refer to a singular event as stated by al-usuliyin.”

Al-Nawawi, Abu Zakariyya Yahya bin Sharaf, Al-Minhaj Sharh Sahih Muslim bin Hajjaj, Dar al-Ahya al-Turath al-‘Arabi, Beirut, 1392 AH, vol.3 pt.6 p.21

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