Chapter Five: The Etiquettes of a Fatwā, the Muftī and the One Seeking a Fatwā

From Imam an-Nawawi's work, which will be republished soon, insha'Allah

An aerial view of Damascus, including the Dar al-Hadith where Imam an-Nawawi used to teach

Chapter Five

The Etiquettes of a Fatwā, the Muftī and the One Seeking a Fatwā

Know that this chapter is very important. I wanted to give it precedence due to the general need for it, and a group of our companions[1] have already written about this, including:


(1) Abū al-Qāsim al-Ṣaymarī, sheikh of the author of al-Ḥāwī

(2) Then al-Khaṭīb Abū Bakr al-Ḥāfiẓ al-Baghdādī

(3) Then Al-Sheikh Abū ʿAmr ibn al-Ṣalāḥ

Each one of them mentioned precious things that haven’t been mentioned by anyone else. I have studied the three books and extracted a brief summary that comprises every important matter that they mentioned and I have added to them some gems from the miscellaneous speech of our companions, and with Allah is every success.

Know that giving fatwā[2] is a matter of immense significance, formidable position and much precedence; because the muftī is the inheritor of the Prophets, may Allah’s prayers and peace be upon them, and he is carrying out a communal obligation, but he is liable to make mistakes. This is why they have said, ‘The muftī has a position with Allah the Exalted.’ We have related on the authority of Ibn al-Munkadir that he said, ‘The scholar is between Allah the Exalted and His creation, so look at how he enters between them.’ We have related on the authority of the first three generations and those who stand out from amongst the khalaf [3] many well-known statements regarding abstaining from giving fatwā, and we shall mention some of them in order to seek their blessings.[4] We have related on the authority of ʿAbd al-Raḥmān ibn Abī Laylā that he said, ‘I met one hundred and twenty of the Helpers[5] from the Companions of the Messenger of Allah, may Allah bless him and grant him peace. One of them was asked about an issue and he passed it on to someone else, and he in turn passed it on to someone else until it eventually came back to the first person.’ In another narration: ‘Not a single one of them would relate a ḥadīth except that he wished that his brother would spare him from having to do so, and none of them would be asked about something except that he wished his brother would spare him from having to give fatwā.

It is on the authority of Ibn Masʿūd and Ibn ʿAbbās, may Allah be pleased with them: ‘Whoever gives a fatwā regarding everything he is asked about is mad.’[6]

It is on the authority of Al-Shaʿbī, Al-Ḥasan and Abū Ḥaṣayn, who were Followers: ‘Indeed one of you will give fatwā regarding an issue, and if it were to reach ʿUmar ibn al-Khaṭṭāb, may Allah be pleased with him, he would gather the people of Badr against it.’

It is on the authority of ʿAṭāʾ ibn al-Sāʾīb, the Follower: ‘I met some people and one of them was asked about a matter and when he spoke he was trembling.’ It is on the authority of Ibn ʿAbbās and Muḥammad ibn ʿAjlān: ‘If the scholar is heedless of ‘I don’t know’, then his assailant has indeed afflicted him.’ It is on the authority of Sufyān ibn ʿUyaynah and Saḥnūn: ‘The boldest of people with regards to giving fatwā are the least of them in knowledge.’

It is on the authority of Al-Shāfiʿī that he was asked about an issue and he didn’t answer. He was asked why and he replied, ‘Until I know whether it is better to remain silent or to give an answer.’

It is on the authority of Al-Athram: ‘I heard Aḥmad ibn Ḥanbal often saying ‘I don’t know’, and it is amongst the known saying and proverbs on the matter.’

It is on the authority of Al-Haytham ibn Jamīl: ‘I witnessed Mālik being asked about forty-eight issues, and regarding thirty-two of them he said, “I don’t know.”’

It is also on the authority of Mālik that he was maybe asked about fifty issues, and he didn’t answer a single one of them.’ He used to say, ‘Whoever gives an answer regarding an issue, before he answers he should place himself before Paradise and the Fire; how will he end up? Then he should answer.’ He was asked about an issue and said, ‘I don’t know.’ It was then said to him, ‘It’s a light, easy issue.’ He then became angry and said, ‘There is nothing light in knowledge.’

Al-Shāfiʿī said, ‘I never saw anyone in whom Allah the Exalted had gathered the tools of fatwā as he gathered them in Ibn ʿUyaynah who was more silent than him with regards to fatwā.’

Abū Ḥanīfah said, ‘If it were not for the fear from Allah the Exalted that knowledge would be lost I would not give fatwā; they get the delight[7] and I get the burden of responsibility.’ Their statements regarding this are many and well-known. Al-Ṣaymarī and Al-Khaṭīb said, ‘They are few those who are keen to give fatwā, racing towards it and applying themselves with zeal, except that they have little success and they are disturbed in their affairs even if they don’t like it, can’t influence it, and can’t find any alternative. If he changes his affair then the support from Allah is greater and propriety in his answers is greater, as proven by his statement, may Allah bless him and grant him peace, in the authentic ḥadīth: {Do not ask for rulership,[8] for indeed, if you are given it by way of asking you will be solely in charge of it, and if you are given it without asking you will be assisted with it.}[9]

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Al-Khaṭīb said, ‘The Imam[10] should scrutinise the muftīs, and whoever is suitable for giving fatwā he should confirm and whoever is unsuitable he should prevent, and he should forbid him from going back and threaten to sanction him if he does go back. The way for the Imam to know who is suitable for fatwā is to ask the scholars of his time, and rely on the reports of those who are trustworthy from amongst them.’ Then he[11] related, with his own chain of transmission, on the authority of Mālik, may Allah have mercy on him, that he said, ‘I did not give fatwā until seventy people testified that I was qualified to do so.’ In another narration: ‘I did not give fatwā until I asked those who were more knowledgeable than me if they saw me as right to do so.’ Mālik said, ‘A man should not see himself as qualified for anything until he has asked those more knowledgeable than him.’

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They have said, ‘The muftī should be outwardly careful and be well-known for his outward religiosity and dazzling prudence. Mālik, may Allah have mercy on him, would do more than what he had enjoined upon the people. He would say, ‘One is not a scholar until one does more oneself than what one enjoins upon the people, such that if he were to leave it off he would not be sinning.’ He would also narrate something similar from his sheikh Rabīʿah.

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It is a condition of the muftī to be legally responsible,[12] Muslim, reliable, trustworthy, removed from the causes of iniquity and the violators of respectability,[13] a jurist of the self,[14] of sound intellect, composed thought and sound conduct[15] and derivation,[16] and vigilant regardless of whether he is dealing with a freeman, a slave, a blind person, or a mute if he writes or his gestures are understood.

Al-Sheikh Abū ʿAmr ibn al-Ṣalāḥ said, ‘He should be like a narrator[17] in that he is not influenced by kinship or animosity, and bringing about benefit and deflecting harm; because the muftī, with regards to a ruling, is informing on behalf of the Revealed Law in that which no individual has jurisdiction. Thus he is like a narrator and not like a witness, and his fatwā does not have an obligation attached to it, as opposed to the judge’s verdict.’[18] He also said, ‘The author of al-Ḥāwī mentioned that if the muftī displays animosity in his fatwā towards a specific individual he becomes an antagonistic arbitrator, and his fatwā is rejected with regards to the person he has animosity towards, just as his testifying[19] regarding him would be rejected.’ They have all agreed that it is not valid for an iniquitous person to give fatwā, and Al-Khaṭīb has transmitted it as being the consensus of the Muslims. If something happens to him[20] he must use his own personal reasoning.[21] As for the one who is veiled, and he is the one who is outwardly just but his inward justice has not been examined, there are two opinions. The most correct of them is that his fatwā is permissible, because his inward justice is difficult to know for those who are not judges. The second opinion is that it is not permissible, like testifying, and the difference of opinion is like the difference of opinion regarding the validity of a marriage contract in the presence of veiled people.[22] Al-Ṣaymarī said, ‘The fatāwā of the people of evil desires[23] are valid, as well as the Khawārij,[24] and whomever we do not declare disbelievers because of their innovation nor do we declare to be iniquitous.’ Al-Khaṭīb transmitted this and then said, ‘As for the Shurrah[25] and the Rāfiḍah,[26] who insult the righteous first three generations, their fatāwā are rejected and their statements[27] are omitted. The judge is like others with regards to the permissibility of giving fatwā without any dislike. This is the correct and well-known position from our madhhab. Al-Sheikh said, ‘I saw in some of the remarks of al-Sheikh Abū Ḥāmid[28] that he had the fatwā regarding acts of worship[29] and that which was not connected to judgeship.’ Regarding judgeship, our companions have two opinions. One of them is that it is permissible because he is qualified and the other is that it isn’t because it is a position of accusation.[30] Ibn al-Mundhir said, ‘It is disliked to give fatwā with regards to issues of rulings in the Revealed Law.’ [31] Al-Shurayḥ[32] said, ‘I judge and I do not give fatwā.’[33]

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Abū ʿAmr said, ‘Muftīs fall into two categories: the independent and otherwise.’

The first category: The condition for the independent muftī, along with what we have mentioned, is that he be a custodian with the knowledge of the evidences of the Revealed Law’s ruling from the Book, the Sunnah, consensus and analogy, and what is attached to them by way of detail, and they have been laid out in detail in the books of fiqh and facilitated, praise be to Allah. He must be a scholar of what is stipulated concerning evidences, and the various aspects that they indicate, and of how to acquire rulings from them, and this is drawn from the foundations of fiqh. He should know the sciences of the Qurʾān, ḥadīth, the abrogating and the abrogated, grammar, language, morphology, and the differences of opinion amongst the scholars and their agreements to such an extent that he is able to fulfil the conditions of the evidences and take from them. He must have a lot of experience and practice in using that,[34] and be a scholar of fiqh and its foundational issues as well as its branches. Whoever gathers all of these qualities is an absolute, independent muftī through whom the communal obligation is carried out, and he is an absolute, independent mujtahid, because he acts independently with the evidence without imitating or being restricted to anyone’s madhhab. Abū ʿAmr said, ‘What we have stipulated regarding memorising the issues of fiqh has not been stipulated in many of the well-known books of fiqh, due to it not being a condition for the office of ijtihād, because fiqh is its fruit and thus comes later, and a condition of something cannot come after it. Al-Ustādh Abū Isḥāq al-Isfarāyīnī stipulated it, as well as his companion Abū Manṣūr al-Baghdādī, and others. To make it a stipulation for the muftī through whom the communal obligation is carried out is the correct position, even if it is not the case with regards to the independent mujtahid. Furthermore, it is not a condition that all the rulings be in his head. Rather, it suffices for him to have memorised most of them and have easy access to the rest. Is it a condition for him to know the necessary arithmetic[35] to emend mathematical juristic issues? Abū Isḥāq and Abū Manṣūr have related a difference of opinion amongst our companions, and the most correct position is that it is a condition. Furthermore, we only stipulate the combining of the abovementioned sciences for an absolute muftī in all the categories of the Revealed Law. As for a muftī in one specific category,[36] such as the rites of the Ḥajj, or inheritance,[37] then it suffices him to know that category, as has been decisively affirmed by al-Ghazālī and his companion Ibn Barhān, and others. There are those amongst them who forbid it absolutely,[38] and Ibn al-Sabāgh said it is was only permissible with regards to inheritance. The most correct position is that it is absolutely permissible.

The second category is the muftī who is not independent, and it has been a long time since there was an independent muftī, and fatwā came to be attributed to the imams of the followed madhhabs.[39]

The attributed muftī has four states. The first is that he imitates his imam neither in the madhhab nor in his evidences, due to him being described as independent. Rather, he is only attributed to him because he follows his path in ijtihād, and Al-Ustādh Abū Isḥāq claimed this quality from amongst our companions, and it has been related from the companions of Mālik, may Allah have mercy on him, as well as those of Aḥmad, Dāwūd, and most of the Ḥanafīs that they ended up imitating the imams of their madhhabs. Then he[40] said, ‘And the correct position is what the verifying scholars amongst our companions have gone with, and it is that they ended up at the madhhab of Al-Shāfiʿī, not imitating him, but rather they found his paths of ijtihād to be the most correct and pertinent of paths. When it came to ijtihād they couldn’t avoid following his method and thus they sought to know the rulings according to Al-Shāfiʿī’s method.’ Abū ʿAlī Al-Sinjī mentioned something similar to this when he said, ‘We followed Al-Shāfiʿī and no one else because we found his statement to be the most preferred of statements and the most balanced of them. We did not imitate him.’ That which they have mentioned corresponds to what Al-Shāfiʿī commanded them to and then al-Muzanī at the beginning of his Mukhtaṣar, as well as others, in his statement along with his two notifications: his forbidding of imitating him and of imitating others. Abū ʿAmr said, ‘The claim that absolutely negates imitation from them is not right and does not fit what is known about their state and the state of most of them.’ One of the people of uṣūl[41] from amongst us has related that there is no independent mujtahid after the age of Al-Shāfiʿī. Furthermore, the fatwā of the muftī in this state is like the fatwā of the independent muftī in that it is acted upon and considered in consensus and difference of opinion.

The second state is that he is a mujtahid who is restricted to the madhhab of his imam and he is independent in determining his foundations with the evidence. However, in his evidence he does not go beyond the foundations and principles of his imam. It is a condition that he be a scholar of fiqh and its foundations as well as of the evidences of the rulings in detail. He must also have insight into the procedures of analogies and significations,[42] be fully experienced in extraction[43] and derivation and a custodian with regards to attaching what is not manṣūṣ ʿalayh[44] for his imam according to his foundations. He is not stripped of the blemish of imitating him[45] due to the fact that he lacks some of the tools of the independent muftī, e.g. by failing to meet all the conditions of mastering ḥadīth or Arabic, and the one who is restricted often fails to meet the conditions of these two. Then he adopts the texts of his imam as foundations and derives from them just as the independent muftī does so with the texts of the Revealed Law.[46] Maybe he will be content with a ruling based on the evidence of his imam, and he will not look for something to contradict it, as the independent muftī does with the texts of the Revealed Law. This is the quality of our companions who are the people of opinions,[47] and it is the quality that the imams of our companions were upon, or most of them. The one who acts upon the fatwā of this person is an imitator of the imam[48] and not the person. Furthermore, the outward speech of the companions is that the communal obligation is not carried out through a muftī in this state. Abū ʿAmr said, ‘It is obvious that the obligation is carried out through him with regards to giving fatwā, even though it is not carried out with regards to reviving the sciences[49] from which a fatwā is procured; because he takes the place of his independent imam in deriving branch rulings, according to the correct position.’ It is permissible to imitate the dead, and then the restricted person might act independently in an issue or a specific category, as has already been mentioned. He can also give fatwā regarding which there is no text from his imam by extracting it based on his foundations. This is the correct position, which is acted upon and in which the muftīs have sought refuge in for a long time. Furthermore, if he gives a fatwa based on his extraction then the one asking the question[50] is imitating the imam[51] and not him. This was decisively affirmed by Imam al-Ḥaramayn in his book Al-Ghiyāthī, and how abundant are its benefits. Al-Sheikh Abū ʿAmr said, ‘This should be extracted based on a dispute that was related by al-Sheikh Abū Isḥāq al-Shīrāzī and others, which concerns that which is extracted by our companions; is it permissible to attribute it to al-Shāfiʿī? The most correct position is that it is not attributed to him. Furthermore, sometimes he extracts from a specific text of his imam, and sometimes he doesn’t find it so he extracts based on his foundations by finding an evidence that matches the conditions his imam used as proof. Thus, he gives fatwā according to what it necessitates, for if the imam gives a text regarding something and then gives a text concerning an issue that resembles it that contradicts the former text and thus one extracts from one of them to the other, this is called an extracted position.[52] The condition for this extraction is that one does not find any difference between the two texts, for if he finds any difference between them he must affirm both of them based on their outward purport. They often differ with regards to positions that are extracted in this manner due to their differing over the possibility of a difference.[53]

I have said: And in most of that there could be a difference and they mentioned it.

The third state is that one does not reach the rank of the people of opinions, but he is a jurist of the self, has memorised the madhhab of his imam, he knows its evidences, he stands by their affirmation, he illustrates, he edits, he affirms, he paves the way, he declares that which is false and he gives preference. However, he is less than the aforementioned because he is less than them in memorising the madhhab, or in his experience in derivation, or in his knowledge of the foundations, or he lacks some of the other tools that they possess. This is the attribute of many of the later scholars, up until the late fourth century; the writers who regulated the madhhab and edited it and they produced written works containing most of what people are busy with today, and they didn’t measure up those who came before them in extraction. As for their fatwas, they didn’t expand in detail to the extent that the aforementioned did, or even close. They made analogies regarding that which there was no text[54] without restricting themselves to obvious analogy.[55] There are those amongst them whose fatāwā have been gathered, and in their adherence to the madhhab they have not reached the amount of fatāwā of the people of opinions.

The fourth state is that one is engaged in memorising the madhhab, transmitting it and understanding it in terms of both its clear matters and its obscure matters, but he has some weakness in affirming its proofs and editing its analogies. This person is relied on in his transmitting and in his fatwā in what he relates from the writings of his madhhab from the texts of his imam, and the branching of the mujtahids in his madhhab, and the same goes for what he doesn’t find to be transmitted if its meaning is found to be transmitted, such that he realises without a great deal of thought that there is no difference between the two; it is permissible to adhere to it and give fatwā based on it. The same goes for what he knows to be inserted under a regulator[56] who paves the way in the madhhab, and what isn’t like that must be refrained from when giving fatwā, and situations like this occur rarely with regards to the aforementioned, since it is unlikely, as Imam al-Ḥaramayn has said, for an issue to occur for which there is no text in the madhhab or even in the meaning of manṣūṣ or inserted under a regulator. The condition for him to be a jurist of the self is that he have an abundant share of fiqh. Abu ʿAmr said, ‘And what suffices with regards to memorising the madhhab in this state and that which is before is that most of it is in his mind, and due to his experience he can easily access the rest.

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These are the classes of the muftīs and they are five, and each class stipulates memorising the madhhab and being a jurist of the self. Thus, whoever applies himself to giving fatwā without possessing this attribute has fallen into an immense matter. Imam al-Ḥaramayn and others have decisively affirmed that the proficient scholar of uṣūl[57]who discharges his individual duty in fiqh is not allowed to give fatwā based on those qualifications alone. If something happens to him it is incumbent upon him to ask about it, and therein adhere to someone who acts independently,[58] is keen-eyed and is a researcher from the imams who differ with each other and one of the luminaries amongst those who debate, because he is not qualified to obtain the ruling for that incident independently due to his shortage of tools, nor from the madhhab of an imam due to his lack of memorising it to any considerable degree. If it is said, ‘Someone who has memorised a book or more in the madhhab and falls short, and thus is not described with the qualities of any of the aforementioned, if a layperson can’t find anyone besides him in his locality can he refer to his position?’ The answer is that if there is a muftī outside of his locality and he finds a way to access him, then he must try his best to reach him. If that is impossible, then he mentions the issue to this person who falls short. Then he, in turn, if he finds the exact same issue in a book whose veracity is trusted and it is from someone whose reports are accepted, he transmits the issue’s ruling to him as it is written, and the layperson in this case is imitating the imam of the madhhab. Abū ʿAmr said, ‘I found this implied in the speech of some of them, and the evidence supports it. If he doesn’t find the very issue in written form he must not make an analogy based on the written materials that he has, even if he believes it to be an analogy in which there is no dissimilarity, because he could be mistaken.’ If it is said, ‘Can the imitator give fatwā regarding that which he is imitating?’, we say: Abū ʿAbdillah al-Ḥalīmī, Abū Muḥammad al-Juwaynī and Abū al-Muḥāsin al-Ruwayānī, as well as others, have decisively affirmed that it is unlawful, while Al-Qaffāl al-Marwazī said it was permissible. Abū ʿAmr said, ‘The position of those who prohibit it means that the one who mentions it does not claim it to be from himself. Rather, he attributes it to the imam whom he follows. It is based on this that there are some who consider such a person to be an imitating muftī and not a real muftī, but when they take their place and carry out their function on their behalf they are considered to be among them. Their procedure is for them to say, “The madhhab of Al-Shāfiʿī is such-and-such…” or “like this”, and if someone fails to attribute it then it suffices if it is known from the context, such that it doesn’t have to be clearly stated, and there is no harm in that.’ The author of Al-Ḥāwī has mentioned with regards to the layperson that if he knows the ruling for an event based on its evidence then there are three opinions. The first is that it is permissible to give fatwā with it and it is permissible to imitate it, because it is connected to his knowledge just as it is connected for the scholar.[59]

The second opinion is that it is permissible if its evidence is from the Book or the Sunnah and not permissible if it is otherwise. The third opinion is that it is absolutely not permissible, and it is the most correct, and Allah knows best.

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Regarding the Rulings of the Muftīs

And there are several issues

The first is that giving fatwā is a communal obligation, and thus if one is asked for a fatwā and there is no one else in the locality then answering is an individual obligation upon him. If there is someone else and both are present then answering is a communal obligation with regards to both of them. If no one else is present[60] then there are two opinions, the most correct of which is that it is not an individual obligation due to what has already been mentioned from Ibn Abī Laylā.[61] The second is that it is an individual obligation, and they are like the two opinions regarding testifying. If a layperson asks about something that hasn’t happened[62] then it is not obligatory to respond.

The second is that if he gives a fatwā regarding something and then goes back on it, if the questioner knows that he went back on it and he has not yet acted upon it then it is not permissible to act upon it, and the same would apply if the questioner got married based on his fatwā and remained married based on his fatwā and then he went back on it. In such a case he would have to separate from her. Likewise, if the ijtihād of the person one is imitating with regards to the direction of prayer changes during the prayer itself, or even if the action was done before he went back on it, if it contradicts decisive evidence then the questioner must nullify that action of his. If it is within the scope of ijtihād then it is not incumbent upon him to nullify it, because an ijtihād is not nullified by another ijtihād. This detail has been mentioned by Al-Ṣaymarī, Al-Khaṭīb and Abū ʿAmr and they have agreed upon it, and I don’t know of any differing opinion regarding it, and what Al-Ghazālī and Al-Rāzī have mentioned does not contain a clear differing. Abū ʿAmr said, ‘If he gave a fatwā based on the madhhab of his imam and he went back on it because it became decisively clear to him that it contravened the text of the madhhab of his imam then it is obligatory to nullify the action, even if it is within the scope of ijtihād, because the text of the madhhab of his imam, as far as he is concerned, is like the text of the Lawgiver with regards to the independent mujtahid. As for when the questioner doesn’t know that the muftī has gone back on his fatwā, the state of the questioner with regards to his knowledge is as it was before the muftī changed his mind, and the muftī must inform him before he acts upon it, and likewise afterwards since it would obligate nullification. If he acted upon his fatwā and it led to damage or destruction, and then his mistake became clear, and it contradicted that which is decisive, then according to Al-Ustādh Abū Isḥāq he must compensate[63] if he is someone qualified to give fatwā, and he doesn’t compensate if he is unqualified, because the questioner is the one who fell short.[64] This was likewise related by Al-Sheikh Abū ʿAmr, and he didn’t comment on it, and it is obscure, and the compensation should be extracted based on the statements[65] of the deceiving party and those known[66] in the chapters of wrongfully taken property[67] and marriage,[68] and others, or it is decisively affirmed that there is no compensation if there is nothing in the fatwā making it incumbent or compulsory.

The third is that it is unlawful to be negligent in giving fatwā, and if someone is known for doing so then it is unlawful to seek a fatwā from him. Being negligent includes not proceeding with caution, and hastening to give the fatwā before giving it its full right in terms of investigation and reflection. If he already knows the answer because he has been asked about it before, then there is no harm in answering promptly, and this is how what has been related regarding previous scholars answering promptly should be understood.

It is also from negligence for corrupt objectives to induce him to pursue unlawful stratagems, or disliked ones, and to cling to doubtful matters in order to get a concession for someone he wants to benefit, or to be strict towards someone he wants to harm. As for the one whose intention is sound, and he presumed that by seeking stratagems in which there are no doubtful matters that he would free someone from the predicament of an oath, then that is good and favourable, and this is how to understand what has been related from some of the first three generations that are like this, such as the statement of Sufyān: ‘Knowledge according to us is just concessions from a reliable person. As for strictness, everyone is good at it.’ One of the stratagems that contain doubtful matters and are blameworthy is the surayjiyyah[69] stratagem used to prevent divorce.

The fourth is that one should not give fatwā in a situation in which his disposition has changed and his heart is preoccupied, and thus he is prevented from contemplation, such as anger, hunger, thirst, overwhelming sadness or joy, drowsiness, weariness, unpleasant heat, a painful illness, the need to relieve himself, or any other situation in which the heart is preoccupied and he is taken beyond the limit of temperance. If he gives fatwā in one of these states and he feels that he did not go beyond what is correct, then it is permissible, even though he was bold to do so.

The fifth is that the chosen position for the one who applies himself to fatwā is to do voluntarily, and it is permissible for him to take some provision from the Muslim treasury,[70] unless it is an individual obligation upon him and not a communal, for the correct position is that it is unlawful. Furthermore, if he has some provision then the foundation is that he is not allowed to take a wage, and if he doesn’t have any provision then he cannot take a wage from people of distinction that he gives fatwā for, such as a ruler. Al-Sheikh Abū Ḥātim al-Qazwīnī, from amongst our companions, resorted to stratagems and said, ‘He can say, “It is incumbent upon me to give you a fatwā verbally. As for writing it down, then no.”’ Therefore, if he pays him to write it down then it is permissible. Al-Ṣaymarī and Al-Khaṭīb said, ‘If the people of a locality agree to give him provision from their own wealth on the condition that his time be completely free in order to give them fatwā, then it is permissible.’ As for gifts, Abū Muẓaffar al-Samʿānī said, ‘He can accept them, as opposed to the ruler, as his rule is necessary.’ Abū ʿAmr said, ‘Accepting them should be declared unlawful if they are a means of bribery, i.e. to get the fatwā that one wants, as in the case of a ruler, and the same goes for everything else for which nothing is accepted in return.[71] Al-Khaṭīb said, ‘The Imam[72] must allocate for the one who has appointed himself to teach fiqh and give fatwā with regards to rulings that which will suffice him from any professional pursuit, and it should be from the Muslim treasury.’ Then he narrated with his own chain of transmission that ʿUmar ibn al-Khaṭṭāb, may Allah be pleased with him, would give every man who had this quality one hundred dīnārs a year.

The sixth is that it is not permissible to give fatwā with regards to oaths, the recognition of rights,[73] and other similar matters that are connected to expressions,[74] unless he is from the same locality as the speaker, or he has their rank of expertise regarding what is meant by their expressions and what is commonly known[75] amongst them therein.

The seventh is that it is not permissible for the one whose fatwā are transmitted from the madhhab of an imam, when he relies on books, to rely on other than a book whose veracity is trusted, in that it is the madhhab of that imam. If he is confident that the original copy of the written work bears this attribute but the copy he has is not reliable then he must seek out other copies that are agreed upon, and confidence may be achieved, in some issues, in a copy that is not trusted if one sees that the speech is uniform, and he is an expert and intelligent and due to his experience he would notice if something had been omitted or altered. If he can’t find it except in the copy that is not trusted then Abū ʿAmr says that he should investigate. If he finds that it is consistent with the foundations of the madhhab and he is qualified to extract something like it in the madhhab in cases where he can’t find anything transmitted, then he can give fatwā based on it. If he wants to relate it from the person who said it then he does not say, ‘Al-Shāfiʿī said such-and-such….’ Rather, he should say, ‘According to Al-Shāfiʿī, I found such and such…’ or ‘it has reached me that according to Al-Shāfiʿī…’ If he is not qualified to extract something like it then it is not permissible for him. His job is merely to transmit, and he has not acquired that which would permit him to do the aforementioned. His job is to mention it and not in the form of a fatwā, clearly declaring his state by saying, ‘I found it in a copy of the book of so-and-so’, or something similar.

I say: It is not permissible for a muftī upon the madhhab of Al-Shāfiʿī, if he relies upon transmission, to be content with one or two written works, or something similar, from the books of the early scholars or most of the latter-day ones, due to the abundance of differing between them regarding that which is resolved and giving preference to one opinion over another; because this aforementioned muftī is transmitting the madhhab of Al-Shāfiʿī and he has not acquired confidence that what is in the two aforementioned books, or something similar, is the madhhab of Al-Shāfiʿī, or that it is the preferred position when there is a difference of opinion, and this is something that is indisputable regarding those at the lowest levels of the madhhab. Indeed, an issue could be resolved according to ten written works but then irregular[76] according to the person who is preferred[77] in the madhhab, and he disagrees with the majority. Maybe he will disagree with the text of Al-Shāfiʿī or several texts of his, and we will see in this commentary,[78] if Allah the Exalted so wills, examples of this. I hope that the completion of this book will allow one to be free of every other book and through it the madhhab of Al-Shāfiʿī will be decisively known, if Allah the Exalted so wills.

The eighth is that if he gives fatwā regarding an incident and then an incident similar to it occurs, if he remembers the first fatwā and its evidence, i.e. according to the foundation of the Revealed Law if he is independent and according to his madhhab if he is attributed, then he gives fatwā regarding it without any further investigation. The most correct position is that it is obligatory to re-investigate, and it is similar to the judge when he gives a verdict based on ijtihād and then the issue occurs again, and likewise one renews one’s search for water with regards to tayammum[79] and one’s ijtihād with regards to the prayer direction, and there are two opinions regarding these two. Al-Qāḍī Abī Ṭayyib said in his remarks at the end of the chapter on facing the prayer direction, ‘And likewise the layperson, if an issue happens to him he should ask about it, and if it happens again it is incumbent upon him to ask a second time,’ i.e. according to the most correct position, and then he said, ‘unless it is an issue that happens often, and it would be difficult to keep asking about it. Thus, it would not be incumbent upon him and asking about it the first time is sufficient due to the difficulty involved.’

The ninth is that one should not limit oneself when giving fatwā to saying, ‘There is a difference of opinion in this issue’, or ‘two positions’, or ‘two opinions’, or ‘two narrations’, or ‘that goes back to the opinion of the judge’ etc., as these are not answers. What the questioner is seeking is clarification that he can act upon, and thus one should give him a resolute answer that is the preferred opinion. If he doesn’t know it then he should refrain until it is manifest or he should leave off giving fatwā, as was done by a group of senior Companions who refrained from giving fatwā with regards to a forgetful person who violates an oath.

Section

On the Etiquettes of Fatwā

And there are several issues

The first is that the muftī must give a clear answer that removes any obscurity, and then he can restrict himself to answering orally. If he doesn’t know the language of the questioner then it suffices him to have it translated by one reliable person, because it is a piece of information. He can also write down the answer, even though there is some risk in doing so. Al-Qāḍī Abū Ḥāmid would often flee from giving fatwā on pieces of paper. Al-Ṣaymarī said, ‘It is not from etiquette for the question to be in the handwriting of the muftī. As for in his dictation and his correction, then it is allowed. Al-Sheikh Abū Isḥāq Al-Shīrāzī would write the question on a piece of paper belonging to him and then he would write the answer. If there are several issues on the piece of paper then the best thing is to arrange the answer according to the question, but if he doesn’t arrange it then there’s no harm in that, and it resembles the meaning of Allah the Exalted’s statement: {on a Day when faces are whitened and faces are blackened. As for those who faces are blackened…}[80] If there is some detail in the issue then the answer is not to be dispatched, for that would be a mistake. Moreover, he can seek further details from the questioner if he is present, and write down the question on a piece of paper. Then he can answer, and that is foremost and safer. He can also limit himself to answering one of the questions if he knows that it is the questioner’s actual situation, and he says ‘this is how it is if the case is such and such.’[81] He can also break down the questions in his answer and mention the ruling for each question, but this was disliked by Abū al-Ḥasan from amongst the imams of the Mālikīs, and others, and they said, ‘This is teaching immoral people.’ If the muftī can’t find the person who asked him then he should break down the questions and work diligently to explain them and present them in detail.

The second is that he should not write the answer based on what he knows from the illustration of the event if it is not on the piece of paper that is presented to him. Rather, he should answer what is on the paper. If he wants to answer what isn’t on it then he should say, ‘If the case is such-and-such then the answer is such-and-such.’ The scholars have recommended that one provide more in one’s answer than what is on the paper if it is related to what the questioner needs, based on the ḥadīth:{It’s water is purifying[82] and what dies therein is lawful to eat.}[83]

The third is that if the questioner has a hard time understanding then he should be gentle with him, and be patient with understanding his question and making him understand his answer, for indeed his award will be abundant.

The fourth is that he should unequivocally contemplate the piece of paper, and the last part of it with certainty, for indeed the question is in the last part, and indeed all of it could be limited to one word at the end which is overlooked. Al-Ṣaymarī said, ‘One of the scholars said, “The way he deliberates with a simple issue should be the way he deliberates with a difficult issue, so that he gets used to it,” and Muḥammad ibn al-Ḥasan would do this. If he finds a word that is ambiguous he should ask the questioner about it, as well as its pronunciation and vocalisation. Likewise, if he finds a gross grammatical error, or a mistake, he changes it to that which is most suitable. If he sees a blank space in the middle of a line or at the end of it he should draw a line over it, or fill it in, because maybe the questioner left it there to harm the muftī, by writing something in the blank space that would corrupt the fatwā after it had been given, as Al-Qāḍī Abū Ḥāmid al-Marwarūdhī was tried with.

The fifth is that it is recommended to read it out to those who are present from amongst those who are qualified to do so, and to consult them and discuss it with them with kindness and just treatment, even if they are less than him and his students, in order to emulate the first three generations. He should hope that whatever was hidden from him will be manifested, unless there is something therein that would be repulsive to bring out, or which the questioner would prefer not to be disclosed, or would cause some harm by being circulated.

The sixth is that he writes the answer in clear, medium handwriting, not delicate and hardly visible nor thick and coarse. He should not make the space between the lines too wide or too narrow, and the wording should be clear and sound such that the laity would understand, but at the same time would not be scorned by the elite. One of them recommended that one not change one’s pens or one’s handwriting for fear of forgery and so that one’s handwriting is not doubted. Al-Ṣaymarī said, ‘Forgery is rarely discovered with regards to a muftī, because Allah the Exalted guards the affair of the religion.’ Once he has written his answer he should look over it for fear of any shortcoming that may have occurred therein, or an infringement of some of what he was asked about.

The seventh is that if he is a beginner then the custom of old and until today is to write towards the left of the page. Al-Ṣaymarī and others have said, ‘And wherever he writes, from the middle of the page or in its margins, he is not censured for it.’ By no mean should he write above the basmalah[84] and he should supplicate if he wants to give fatwā. It has come from Makḥūl and Mālik, may Allah have mercy on him, that they would not give a fatwā until they had said, ‘There is no strength or power except in Allah.’ It is recommended to seek refuge from Shayṭān and start with the name of Allah, to praise him and to send prayers upon the Prophet, may Allah bless him and grant him peace. Then he should say, {O Lord, expand my breast…}[85] and the rest of the supplication in the āyah and that which is similar. Al-Ṣaymarī said, ‘The habit of many is to begin their fatāwā with, ‘The answer, and with Allah is every success…’, while others have omitted it. If he does that for a long list of issues that includes sections and he omits it elsewhere then that is a way of doing things.

I say: The chosen position is that one should say that absolutely, and it is best to begin by saying, ‘Praise be to Allah’,[86] due to the ḥadīth, {Every important matter that is not started with al-ḥamdu lillāh is cut off}[87] He should say it with his tongue as well as write it. Al-Ṣaymarī said, ‘He should not omit concluding his answer by saying, “And with Allah is every success”, or “and Allah knows best”, or “and Allah is the One Who grants success.” He also said, ‘It is not repulsive for him to say, “The answer according to us…”, or “According to us…”, or “What we say is…”, or “What we go with is…” or “Our opinion is…”, etc., because he is someone qualified to do so.’ He also said, ‘If the questioner omits supplicating for the muftī or sending prayers upon the Messenger of Allah, may Allah bless him peace, then the muftī should add it at the end of the fatwā in his own handwriting, for it is the custom to do so.’

I say: Once he has concluded his answer by saying, ‘And Allah knows best’, or something similar from what has been mentioned, he should then write after that, ‘Written by so-and-so’, or ‘so-and-so the son of so-and-so from such-and-such place’[88], and he is thus attributed to what is known about him, such as a tribe, a locality[89] or an attribute. Then he says, ‘Al-Shāfiʿī’ or ‘Al-Ḥanafī’,[90] for example. If he is well-known by a certain name or something else then there is no harm in shortening it. Al-Ṣaymarī said, ‘Some of them have held the opinion that the muftī should write in midād as opposed to ḥibr[91] for fear of it being rubbed out.’ He also said, ‘What is recommended is ḥibr and nothing else.’

I say: Neither of them is specifically recommended, as opposed to books of knowledge, because they are written to last longer and ḥibr is longer lasting. Al-Ṣaymarī said, ‘If he attaches the fatwā to the ruler he should supplicate for him, by saying: “And upon the one in charge of our affairs…” or “the ruler, may Allah rectify him…”, or “may Allah guide him”, or “may Allah strengthen his resolve”, or “may Allah rectify through him”, or “may Allah increase his strength”. He should not say, “may Allah grant him a long life”, for this is not from the expressions of the first three generations.’

I say: Abū Jaʿfar al-Naḥḥās and others have transmitted the agreement of the scholars regarding the fact that it is disliked to say, ‘May Allah grant you a long life.’ One of them said that it is the greeting of the zanādiqah.[92] In Ṣaḥīḥ Muslim, in the ḥadīth of Umm Ḥabībah, may Allah be pleased with her, there is an indication that the priority is to leave off supplications like this that ask for a long life.[93]

The eighth is that he should keep his answer brief, and be understandable for the laity. The author of Al-Ḥāwī said, ‘He should say that it is permissible or not permissible, or true or false.’ His sheikh, Al-Ṣaymarī, related from his sheikh, Al-Qāḍī Abū Ḥāmid, that he would make his answers as short as possible, and he was once asked about an issue and at the end it said, ‘Is it permissible or not?’ He wrote, ‘No, and with Allah is every success.’

The ninth is what has been stated by Al-Ṣaymarī and al-Khaṭīb: ‘If he is asked about someone who said, “I am more truthful than Muḥammad the son of ʿAbdullah”,[94] or “Prayer is a game”, or something of that nature, he should not rush to say, “This person’s blood is lawful”, or “This person must be killed”. Rather, he should say, “If this is true and has been confirmed or there is clear evidence then the ruler should ask him to repent. If he repents then his repentance is accepted. If he doesn’t repent then then the ruler does such and such and does his utmost to fulfil his duties.”’[95] He said, ‘If he is asked about someone who said something which part of it could be blasphemous,[96] he should say, “The person who said this should be asked. If he says that what he meant was such-and-such then the answer is such-and-such.” If he is asked about someone who has committed murder, or plucked an eye out, or something else, he should be cautious and then mention all the conditions that would necessitate retaliation.[97] If he is asked about someone who has done something that would necessitate reprimand[98] he should mention how he is to be reprimanded, by saying, “The ruler should whip him such-and-such, and not more than such-and-such.”’ This is the speech of Al-Ṣaymarī, Al-Khaṭīb and others. Abū ʿAmr said, ‘If retaliation or reprimand has been prescribed for him based on its condition, then that is not absolute. Rather, it is restricted by its condition, and the ruler asks about its condition, and clarification of his state is more important.’

The tenth is that if there is not much space to write the answer he should not write it on another piece of paper, for fear of trickery. This is why they have said, ‘He should make his answer reach the last line, and not leave a space for the questioner to add something that may corrupt it. If the space designated for the answer is a piece of paper that has been stuck together with an adhesive, he should write over the adhesive, and if there is not enough space on the inside of the paper he should write the answer on the outside, and write it on the top unless he is starting from the bottom, connecting it to the question. Thus, the space is restricted and he completes it on the bottom of the outside so that his answer is connected.’ The chosen position of one of them is that he write on the outside and not in the margins. The chosen position according to Al-Ṣaymarī and others is that the margin takes priority over the outside. Al-Ṣaymarī and others have said, ‘The matter therein is close.’

The eleventh is that if it becomes clear to the muftī that the answer will not match the objective of the questioner, and that he would not be pleased with him writing it on his piece of paper, he should limit himself to answering him orally, and let him be warned against inclining in his fatwā, either towards the questioner or his antagonist, and the means of inclination are many and not hidden. One of them is that one writes in the answer that which is in his favour but omits that which isn’t. He cannot get involved in issues of claims and clear proofs[99] as if he is someone who is completely impartial. If one of them asks him and says, ‘Based on what do such-and-such claims proceed?’, or ‘such-and-such and clear proofs?’, he should not answer for fear of some right be nullified. He can ask him about his state with regards to what he’s claiming, and if he explains it to him then he can identify for him that which supports the claim and that which doesn’t. Al-Ṣaymarī said, ‘If the muftī sees a way out for the questioner he should guide him to it and point it out to him’, meaning something that will not harm anyone else without right. He said, ‘For example, someone who swears an oath that he will not spend on his wife for one month. He should tell him to give to her from her dowry, or a loan or a sale and he will pay her back later, and this is similar to what has been related about a man who said to Abū Ḥanīfah, may Allah have mercy on him, “I swore an oath that I would have sexual intercourse with my wife during the day in Ramaḍān and not carry out any expiation nor commit any disobedience.” He replied, “Travel with her.”’[100]

The twelfth is that Al-Ṣaymarī said, ‘If the muftī sees that the benefit would lie in giving a harsh fatwā to the layperson, and the muftī does not believe in its outward import but it can be interpreted, then that is permissible to deter the layperson. For example, it has been related on the authority of Ibn ʿAbbās, may Allah be pleased with both of them, that he was asked about the repentance of a murderer. He said, “There is no repentance for him.”[101] Someone else asked him and he said, “There is repentance for him.” He then said, “As for the first person, I saw in his eyes a desire to kill, so I prevented him. As for the second, he came submissively because he had killed so I didn’t want to drive him to despair.”’ Al-Ṣaymarī said, ‘If a man asks him by saying, “If I kill my slave, will retaliation[102] be binding with regards to me?” it is permissible for him to say, “If you kill your slave then we will kill you. It has been related from the Prophet, may Allah bless him and grant him peace, that he said, {We will kill whoever kills his slave.}”’ This is also because killing has meanings. He said, ‘If he were to be asked about whether insulting a Companion would necessitate being killed, it is permissible for him to say, “It has been related from the Messenger of Allah, may Allah bless him and grant him peace, that he said, {If someone curses a Companion of mine, kill him.}” All of this is done to deter the layperson, and those who lack in their religion and respectability.’[103]

The thirteenth is that when the muftī has several papers in his presence he must give precedence based on first come first serve, just as a judge does with regards to lawsuits. And this concerns that for which a fatwā must be given. If they are all the same, or he doesn’t know which one came first, then precedence is given based on drawing lots. The correct position is that it is permissible to give precedence to a woman and a traveller who has had a difficult journey, and delaying him would hold him back from his travel group, and similar matters that would make it understandable to give them precedence. This is unless there are so many travellers and women that others would be greatly harmed by them being given precedence, so in that case he should revert to first come first serve or draw lots. Then he should not give precedence to anyone unless it is just one fatwā.

The fourteenth is that Al-Ṣaymarī and Abū ʿAmr said, ‘If he is asked about inheritance then it is not the custom to stipulate that in order for someone to inherit they must not be a slave, a disbeliever or the killer of the deceased, or other preventives of inheritance. This is already understood, as opposed to dealing with a case in which there are brothers, sisters, uncles and their children. In such a case he must say in his answer, “From a father and mother…”, or “From a father…” or “From a mother…”. If he is asked about an issue of ʿawl[104] such as al-minbarīyyah,[105] which is when the deceased leaves behind a wife, both parents and two daughters, he should not say that the wife gets an eighth, or a ninth, because this was not stated by anyone from the first three generations. Rather, he should say that she has an eighth based on ʿawl and it is three shares out of twenty-seven, or simply that she has three shares out of twenty-seven. Or, he can say what the Commander of the Believers, ʿAlī ibn Abī Ṭālib, may Allah be pleased with him, said, “Her eighth is a ninth.” If amongst those mentioned on the question paper are some people who will not inherit, then he should make that clear, and say, “So-and-so will not inherit.” If the person’s lack of inheritance is only in some cases and not others, then he should say, “So-and-so will not inherit in this case”, or something similar so that it is not imagined that the person can never inherit by any means.[106] If he is asked about brothers and sisters or sons and daughters then he should not say, “A male receives the same as the share of two females”[107] because that could be confusing for a layperson. Rather, he should divide the inheritance into however many shares and then say that each male gets such and such share and each female gets such and such share.’ Al-Ṣaymarī said, ‘Al-Sheikh said, “We find that in deliberately refraining from it there is hatred within oneself; because it is the words of the Mighty Qurʾān,[108] and how rarely is its meaning hidden from anyone. In answering issues of munāsakhāt[109] he should be especially cautious and on his guard. He should say therein that so-and-so gets such-and-such inheritance from his father, then from his mother, then from his brother.”’ Al-Ṣaymarī said, ‘Some of them would choose to say that so-and-so gets such-and-such share; his inheritance from his father is such-and-such, from his mother such-and-such and from his brother such-and-such.’ He also said, ‘All of that is close.’ Al-Ṣaymarī and others have said, ‘It is good to say that the division of the inheritance is after what must be given precedence, such as debts or bequests,[110] if there are any.

The fifteenth is that if the muftī sees handwriting on the question paper from someone else who is qualified to give fatwā, and what he has written therein agrees with his own opinion, then Al-Khaṭīb and others have said, ‘Underneath his handwriting he should write, “This is a correct answer and it is my position”, or he can write, “My answer is the same”. If he wants, he can mention the ruling in a more concise manner than that of the other muftī.’ As for when he sees handwriting therein from someone who is not qualified to give fatwā, then Al-Ṣaymarī has said, ‘He does not give fatwā alongside him, because that would be an affirmation on his behalf for something that is reprehensible.[111] Instead, he should strike it out with the permission of the owner of the paper, and even if he doesn’t ask his permission it is still permissible, but he should not hold on to the paper unless he has the owner’s permission.’ He also said, ‘He can rebuke and reprimand the questioner and explain to him the ignominy of what he did, and that it is an obligation upon him to look for someone who is qualified to give fatwā and seek out those who are qualified to do so.’ If he sees therein the name of someone he doesn’t know he should ask about him. If he doesn’t know him then he is allowed to refrain from giving fatwā alongside him for fear of what we have just mentioned. He also said, ‘In this situation, one of them would write on the back of the paper.’ He also said, ‘The priority in situations like these is that the owner is shown that the fatwā[112] will be replaced, and if he refuses then he should answer him orally. Abū ʿAmr said, ‘If he fears some tribulation[113] as a result of striking out the fatwā of the one who isn’t qualified and there is no mistake that would make one refrain from giving fatwā alongside him, then if his fatāwā have become predominant due to him taking over such a position based on rank,[114] or deception, or something else, such that the questioners would be harmed if the qualified muftī refrained from giving fatwā alongside him, then he should give fatwā alongside him, for indeed that is the lesser of two evils. He should also be wary of manifesting the other person’s shortcomings[115] to those who are unaware of it. As for when he finds a fatwā from someone who is qualified but it is completely wrong because it contravenes decisive proof, or it is an unquestionable mistake according to the madhhab of the one giving the fatwā, then it is not permissible for him to refrain from giving fatwā and not draw attention to the mistake if there is no one else who will do it. Rather, he must strike it out when possible or replace it, and cut up the piece of paper with the owner’s permission, or something similar. If he is not able to and no one else will do it then he should write the correct answer next to the mistake. Furthermore, if the one who made the mistake is qualified to give fatwā then it is good to send it back to him with the owner’s[116] permission. As for when he finds therein a fatwā of someone who is qualified and it differs from his own opinion without being decisively wrong,[117] then he simply writes his own answer without objecting to the other fatwā by declaring it wrong or rebutting it. The author of Al-Ḥāwī said, ‘It is not acceptable for a muftī, when he is asked, to object to someone else’s answer by rebutting it, nor should he declare it wrong. Rather, he should answer and give his own opinion, regardless of whether it agrees or disagrees.

The sixteenth is that if the muftī does not understand the question at all and the person who experienced the event is not present, then Al-Ṣaymarī says, ‘He should write that he needs more elucidation in order to give an answer, or that he doesn’t understand the contents sufficiently in order to answer.’ He also said, ‘One of them held the position that he shouldn’t write anything at all.’ He also said, ‘I have seen one of them write regarding this that the questioner should be present so that they can address him orally. ’Al-Khaṭīb said, ‘If he doesn’t understand how to answer then he should guide the questioner to another muftī if there is one, and if there isn’t then he should refrain until he knows the answer.’ Al-Ṣaymarī said, ‘If there are several issues on the question paper and he understands some of them and not others, or he understands all of them and doesn’t want to answer some of them, or he needs to contemplate or further examine some of them, then he answers the ones he wants to and remains silent regarding the rest. He should say, “Regarding the rest, we need to investigate,” or “contemplate”, or “investigate further”.

The seventeenth is that it is not reprehensible for the muftī to mention the proof in his fatwā if it is a brief, clear text. Al-Ṣaymarī said, ‘He does not mention the proof if he is giving fatwā to a layman and he does mention it if he is giving fatwā to a jurist, such as someone asking about getting married without a guardian, in which case it is good to say the Messenger of Allah, may Allah bless him and grant him peace, said, {There is no marriage except with a guardian},[118] or about taking back[119] a divorced wife after consummation of the marriage. One should state that he can take her back and that Allah the Exalted has said, {Their husbands have the right to take them back within that time}.’[120] He also said, ‘It is not a customary habit for one to mention the method of ijtihād in his fatwā, the direction of the analogy,[121] or the inference[122] unless the fatwā is connected to the paying back of a loan, in which case he indicates the method of ijtihād and makes it brilliantly incisive. The same applies if someone else gives a fatwā and there is an error in it, in which case he does so in order to draw attention to what he is going with, even if there is some obscurity in that which he is giving fatwā about. Thus, it is good to make it shine with its proofs. The author of Al-Ḥāwī said, ‘He doesn’t mention the proof so that there can be a difference between fatwā and writing books. If one accepts to overstep a little bit one will accept to overstep a great deal, and the muftī will become a teacher.’ The details that we have mentioned take precedence over the absolute restraint of the author of Al-Ḥāwī. In certain circumstances the muftī may need to intensify and go to greater lengths, and thus say, ‘This is the consensus of the Muslims’, or ‘I don’t know of any difference of opinion regarding this’, or ‘whoever goes against has gone against what is obligatory, and deviated from the correct position’, or ‘he has sinned and committed iniquity’, or ‘the ruler must adopt this and not neglect the matter’, and other similar expressions depending on what benefit requires and what the situation necessitates.

The eighteenth is what Al-Sheikh Abū ʿAmr, may Allah have mercy on him, has said, ‘If he is asked about issues of scholastic theology[123] then it is not for him to give a fatwā in detail. Rather, he should forbid the questioner and the rest of the laity from delving into that, or even a bit of it, even if it is small, and he should command them to limit themselves to faith[124] in general without going into detail, and that they say therein and with regards to every āyah that discusses the attributes[125] and the reports about them that are allegorical:[126] indeed we affirm what they contain and in a way that is befitting of Allah’s Majesty, Blessed and Exalted is He, as well as His Perfection and absolute Sanctification. Then one should say, ‘This is our belief regarding them and it is not obligatory upon us to go into details and specifics, nor is it our job to look into it. Rather, we entrust the knowledge of its details to Allah, Blessed and Exalted, and we turn our hearts and our tongues away from delving into it.’ This and similar statements is the correct position from the imams of fatwā in this regard, and it is the way of the first three generations of this Ummah, the imams of the considered madhhabs,[127] the great scholars and the righteous, and it is more prudent and safer for the laity and those like them. If one of them holds a false belief in some issue of detail then he should guide him away from that false belief with that which is more prudent, simpler and safer. If the ruler reprimands whoever deviates from amongst them then he is following the example of ʿUmar ibn al-Khaṭṭāb, may Allah be pleased with him, as he reprimanded Ṣabīʾ, who used to ask about āyāt and reports that were open to interpretation ’. He also said, ‘The scholastic theologians[128] from amongst our companions acknowledge the veracity of this method, and that it is safer for the one whom it is laid down for. Al-Ghazālī was amongst them towards the end of his life: going to the greatest lengths in calling towards it and demonstrating it, and his sheikh, Imam al-Ḥaramayn, mentioned in his book Al-Ghiyāthī that the Imam[129] should strive as much as possible to gather the laity of the creation upon the way of the first three generations in that regard. Al-Ghazālī was asked about the speech of Allah, Blessed and Exalted is He, and part of his answer was, ‘As for delving into the Exalted’s Speech as to whether or not it consists of letters and sounds, this is innovation,[130] and whoever calls the laity to delve into this is not from the imams of the religion. Rather, he is one of those who leads astray, and he is like someone who invites children who can’t swim well to swim in the deepest parts of the sea, or someone who invites a chronically ill, infirm person to travel through open country without a means of transport.’ He said in one of his letters, ‘The correct position is for all of creation, apart from that rare, unique person whom each age only allows one or two to exist in, to travel the path of the first three generations in having the faith that has been revealed and affirming in general everything that has been revealed[131] by Allah the Exalted and informed of by the Messenger of Allah, may Allah bless him and grant him peace, without research or investigation or being preoccupied with fatwā, for that contains work for the one who is preoccupied with it.’[132] Al-Ṣaymarī said in his book Adab al-Muftī wa al-Mustaftī, ‘What the people of taqwā have made consensus on is that this is not befitting of someone who is characterised by giving fatwā in fiqh.’ In another copy: ‘It is not permissible for him to write any fatwā concerning issues of scholastic theology.’ He also said, ‘One of them would not even finish reading question papers like that.’ He also said, ‘One of them would dislike to write, “This is not from our knowledge”, or “We have not gathered for this”, or “Asking about something else would be better”. Rather, he wouldn’t subject himself to any of that.

The imam, the ḥāfiẓ, the jurist, Abū ʿUmar ibn ʿAbdul Barr, has related refrainment in all of that from the jurists and the scholars, of old and until today, from the people of ḥadīth and of fatwā. He said, ‘The only people who go against that are the people of innovation.’ Al-Sheikh said, ‘If the issue is one from which none of the aforementioned harms of delving is feared if one answers in detail then it is permissible to answer in detail, and that is by the answer being short and understandable and not having any parts that would attract those who like to dispute, the question is from someone who is seeking to be guided and to be lead and he is from a people who don’t often argue and dispute, and the muftī is someone whose fatāwā are obeyed.’ This and similar matters is how to understand what has come to us regarding some of the first three generations giving certain fatāwā regarding certain issues of scholastic theology, and that was rare and seldom on their part, and Allah knows best.

The nineteenth is what Al-Ṣaymarī and Al-Khaṭīb, may Allah have mercy on them, said, ‘If a jurist is asked about an issue concerning the exegesis[133] of the Mighty Qurʾān, if it is connected to rulings then he should answer it, and he should write with his own handwriting, such as someone asking about the middle prayer,[134] or periods,[135] or the one in charge of the marriage contract.[136] If it’s not from the issues of rulings, such as a question about al-raqīm,[137] al-naqīr,[138] al-qaṭmīr,[139] or al-ghislīn,[140] then he refers it to its people and entrusts it to those who have appointed themselves to be from the people of exegesis, and if he answers him orally then it is not reprehensible.’ This is the speech of Al-Ṣaymarī and Al-Khaṭīb, and if it were said that it would be good to write it for the jurist who knows it, then that’s good, and what difference is there between that and the issues connected to rulings? And Allah knows best.

Section

On the Etiquettes of the Questioner,[141] His Description and His Rulings

And there are several issues

The first of them is regarding the description of the questioner. Anyone who has not reached the level of muftī is, with regards to the rulings of the Revealed Law that he asks about, a questioner who imitates the one who gives him fatwā. The chosen definition of imitation[142] is that one accepts the position of someone who could be persistently wrong without any proof of the source that would make his position acceptable. If something happens to him regarding which he must know the ruling then he has to ask for a fatwā. If he can’t find anyone to ask in his locality then he must travel to someone who can give him a fatwā, even if he lives far away. Some of the first three generations would travel for days and nights for the sake of one issue.

The second is that he must decisively search for someone known to be qualified that he can ask for a fatwā. If he doesn’t know him to be qualified then it is not permissible for him to seek a fatwā from someone who is affiliated with knowledge and has been appointed to teach, have people read to him and other positions held by scholars simply because of their affiliation and their appointment to that position. It is permissible to seek a fatwā from someone who is well-known for being qualified for giving fatwā.

One of our latter-day companions said, ‘He should only rely on his statement, “I am qualified to give fatwā”, not his reputation, nor does it suffice that he is well-known and constantly spoken about,[143] because being well-known and having a reputation amongst the laity is not something reliable, and the very foundation of it could be fraud. As for being spoken about constantly, this does not indicate knowledge unless it is based on something known and tangible.’ The correct position is the former, because his engaging in fatwā informs us that he is qualified, for indeed the outward form is presumed with regards to the one whose religiosity is trusted. It is also permissible to seek a fatwā from someone whom the well-known, aforementioned person has told us is qualified. Al-Sheikh Abū Isḥāq, the author,[144] as well as others, have said, ‘It is acceptable if one upright person informs that he is qualified.’ Abū ʿAmr said, ‘We should stipulate for the one who reports that he have knowledge and insight that enables him to distinguish that which is dubious from that which isn’t, and one should not rely therein on the information of a few laypeople due to the frequency in which they are deceived.’ If two or more gather from amongst those one is permitted to seek a fatwā from, is one thus obliged to employ personal reasoning as to which of them is most knowledgeable, and to search for the most knowledgeable, most careful[145] and most trustworthy of them so that he can imitate him and no one else? There are two opinions:

The first is that it is not obligatory. Rather, he asks whichever one of them he wants, because they are all qualified, and we have removed personal reasoning from the laity. This opinion is the correct one according to our Iraqi companions. They have said, ‘It is the position of most of our companions.’

The second is that it is obligatory, because this amount of personal reasoning would enable him to research and ask and look at evidences of states. This opinion is the position of Abū al-ʿAbbās Ibn Surayj, the chosen position of Al-Qaffāl Al-Marwazī and it is correct according to Al-Qāḍī Ḥusayn. The first is the most prominent,[146] and it is prominent from the state of the early scholars. Abū ʿAmr, may Allah have mercy on him, said, ‘However, when he becomes aware of who is more trustworthy then the most prominent position is that it is incumbent upon him to follow him, just as it is obligatory to give precedence to the more preferable of two evidences and the more reliable of two narrations.’ Thus, based on this, it is incumbent upon him to imitate the more careful of two scholars and the more knowledgeable of two careful people, and if one of them is more knowledgeable and the other more careful, he imitates the more knowledgeable one according to the most correct position.

Regarding the permissibility of imitating the deceased, there are two opinions. The correct one is that it is permissible, because the madhhabs don’t die with the death of their codifiers, and this is why, after their time, they are still relied on in matters of consensus and difference of opinion, and because the death of a witness before the verdict has been given does not prevent the verdict from being based on his testimony, as opposed to his iniquity. The second is that it is not permissible because his qualification has lapsed like that of an iniquitous person, and this is weak, especially in these times.

The third: is it permissible for the layperson to choose and imitate whatever madhhab he wants? Al-Sheikh said, ‘There is discussion as to whether one is attributed to a madhhab, and we have based it on two opinions that have been related by Al-Qāḍī Ḥusayn regarding the layperson: does he have a madhhab or not? One of them is that he does not have a madhhab because a madhhab is for the one who knows the evidences, and based on this he can ask whomever he wants, whether that person is Ḥanafī, Shāfiʿī, or something else. The second, which is the most correct according to Al-Qaffāl, is that he does have a madhhab and it is not permissible for him to contradict it, and we have mentioned with regards to the attributed muftī what he is allowed to contradict his imam in. If he is not attributed then there are two opinions that have been related by Ibn Burhān regarding the layperson: is it incumbent upon him to adopt a specific madhhab and follow its concessions as well as its strictness? One of them is that it is not incumbent upon him, just as it wouldn’t have been incumbent upon him in the first age to imitate one specific scholar. Based on this, can he ask whomever he wants or is it obligatory upon him to look for the most stringent of the madhhabs and the soundest of them in terms of foundations in order to follow its people? There are two opinions that have been mentioned and they are like the two aforementioned opinions regarding looking into who is the more knowledgeable and more trustworthy of two muftīs. The second is that it is incumbent upon him, and this was decisively affirmed by Abū al-Ḥasan Ilkiyā, and it applies to anyone who has not reached the level of ijtihād from amongst the jurists and the scholars of other sciences. As for the opinion that it is permissible to follow any madhhab one wants, this would lead to one gathering the concessions of the madhhabs out of following one’s own base desires, and choosing between that which has been declared lawful and that which has been declared unlawful, the obligatory and the merely permissible, and that in turn would lead to the noose of legal responsibility being loosened, as opposed to the first age, for indeed the madhhabs that comprised the rulings for events hadn’t been refined, even though they were known.[147] Based on this, it is incumbent upon him to employ personal reasoning in choosing a madhhab to specifically follow, and we have paved an easy way for him to travel in his personal reasoning. Thus, we say that it is not for him to merely follow therein his desires and incline towards what he has found his parents and ancestors to be upon. It is not for him to adopt the madhhab of any of the imams of the Companions, may Allah be pleased with them, or anyone else from that time, even though they were more knowledgeable and of a higher rank than those who came after, because they did not apply themselves to writing down knowledge and regulating its foundations and branches. Thus, none of them have a refined, edited and affirmed madhhab. Those who did so are those who came after from the imams who were ascribed to the madhhabs of the Companions and the Followers and prepared the rulings for events before they happened and were diligent in clarifying their foundations and branches, such as Mālik, Abū Ḥanīfah and others. And when Al-Shāfiʿī came later in time than these imams and investigated their madhhabs in the same way that they investigated the madhhabs before them, he examined them, became thoroughly acquainted with them, criticised them and chose the most preferable of them. He found that those who had come before him had spared him the trouble of moulding and founding, thus allowing him to devote himself to choosing, giving preference, perfecting, checking with his complete knowledge and proficiency in the sciences in addition to his being preferred over those who came before him. Then there was no one after him who reached his rank. His madhhab was the foremost of the madhhabs to be followed and imitated, and this, along with the fairness that it contains and its being free of reproach with regards to any of the imams, makes it clear and obvious that if the layperson reflects on the matter it will lead him to choose the madhhab of Al-Shāfiʿī and adopt it.

The fourth is that if two muftīs each give him a different fatwā, then the companions have five opinions. The first is that he takes the stricter of the two. The second is that he takes the more lenient one. The third is that he employs personal reasoning with regards to what is foremost and thus takes the fatwā of the one who is more knowledgeable and more careful, as has been clarified, and this is the chosen position of Al-Samʿānī the Elder and the text of Al-Shāfiʿī, may Allah be pleased with him, is similar with regards to the prayer direction. The fourth is that he asks another muftī and then takes the fatwā that agrees with his fatwā. The fifth is that he chooses, and thus takes the position of either of them that he wishes, and this is the most correct position according to Al-Sheikh Abū Isḥāq Al-Shīrāzī, the author, and Al-Khaṭīb Al-Baghdādī, and it has also been transmitted by Al-Maḥāmil at the beginning of Al-Majmūʿ from most of our companions. It is also the chosen position of the author of Al-Shāmil if one regards both muftīs as equal. Al-Sheikh Abū ʿAmr said, ‘The chosen position is that one must look into which is the more preferable and act upon it, for indeed it is the ruling of incompatibility,[148] and thus one looks into who is the more reliable of the two muftīs and acts upon his fatwā, and if he can’t find any preference for one over the other he asks another muftī and acts upon the fatwā that agrees with his fatwā. If that is not possible and the difference of opinion is regarding whether something is unlawful or permissible and he hasn’t acted upon either, he goes with the opinion that it is unlawful, for indeed that is more cautious. If they are equal in every respect then we let him choose between them, even though we reject letting him choose in other situations, because it is a necessity and in a rare circumstance.’ Al-Sheikh also said, ‘Then we address the muftīs with what we have mentioned. As for the layperson who has this happen to him, his ruling is to ask those two muftīs or another muftī, and we have instructed the muftī as to how he should respond.’ This position that has been chosen by Al-Sheikh is not strong. Rather, the most prominent position is any one of the three opinions, and they are the third, fourth and fifth. The prominent[149] position is that the fifth is the most prominent of them, because he is not from those qualified to do ijtihād,[150] and thus he is only obligated to imitate a scholar who is qualified for that.[151] This is what he does by taking whichever of the two opinions he wishes, and the difference between him and what Al-Shāfiʿī has stated[152] regarding the prayer direction is that its signs are tangible,[153] and thus realising the correct position is easier. Thus, there is disparity between the mujtahids therein when the signs of the fatāwā are intangible. However, there isn’t great disparity between the mujtahids,[154] and Allah knows best.

The fifth is what Al-Khaṭīb al-Baghdādī said, ‘If there is only one muftī in the locality where he is then it is incumbent upon him to take his fatwā’.’ Abū Muẓaffar Al-Samʿānī, may Allah have mercy on him, said, ‘If the questioner hears the answer of the muftī he is not bound to act upon it unless he adheres to him.’[155] He also said, ‘It is permissible to say that he is bound by it if he has started acting upon it, and it has been said that he is bound by it if he feels that it is sound.’ Al-Samʿānī said, ‘This is the foremost of the opinions.’ Al-Sheikh Abū ʿAmr said, ‘I haven’t found this for anyone else.’ After that he related from one of the scholars of uṣūl that if the muftī gives him a fatwā regarding something that is differed over then he can choose between accepting it or going to someone else. Then he gave his own chosen position, which is that the person must employ personal reasoning with regards to the individual muftīs, and he is obligated to take the fatwā of the one he chooses based on his personal reasoning. Al-Sheikh said, ‘That which the principles require is that we set this forth in detail and thus say: If the muftī gives him a fatwā then we must investigate. If there is no other mufti then he must take his fatwā, and that does not depend on adhering to him, having started to act upon it or anything else. It also doesn’t depend on him feeling that it is sound. If he finds another muftī, if it is made clear that the one who gave him a fatwā is more knowledgeable and more trustworthy then he is bound by his fatwā, based on the most correct position concerning specifying a muftī, as has been mentioned. If it isn’t made clear then he isn’t bound by his fatwā just because he gave it to him, and thus it is permissible for him to ask someone else and imitate him, and the two of them agreeing in the fatwā is not known. If he does find that they agree or a ruler[156] rules by it then he is bound by it.

The sixth is that if he asks and is given a fatwā and then the same event happens again, is he obligated to ask the question again? There are two opinions. The first is that he is obligated due to the possibility of the muftī changing his mind. The second is that he is not obligated, and this is the most correct position, because he knows the first ruling and the foundation is that the muftī will stick to his position. However, the author of Al-Shāmil specified the opposite position depending on whether he is imitating a living person or decisively when he is following a report from a deceased person because he would not be obligated in that matter, but the correct position is that such a specification is not made because the muftī is already upon the madhhab of a deceased person and within his right to change his answer according to his madhhab.

The seventh is that he himself asks, and he can send someone trustworthy whose reports are reliable to ask on his behalf. He can also rely on the muftī’s handwriting if he is informed by someone he trusts that it is his handwriting, or his handwriting is known and thus there is no doubt in the world that the answer is in his handwriting.

The eighth is that the questioner should have etiquette with the muftī, and show him deference when addressing, answering him and so forth. He should not point in his face or say to him, ‘What have you memorised regarding such-and-such’, or ‘What is the madhhab of your imam?’ or ‘Al-Shāfiʿī said regarding such-and-such’, and he should not say when he answers his question, ‘That’s also my opinion’, or ‘such-and-such occurred to me’. He should also not say, ‘So-and-so gave me a fatwā’ or ‘Someone else gave a fatwā stating such-and-such’, nor should he say, ‘If your answer agrees with the one who wrote then write. If not, then don’t write.’ He should not ask him while he is standing, in a state of alertness, if he is perturbed or anxious, or any other state that preoccupies the heart. He should begin with the oldest and most knowledgeable of the muftīs and present the questions in order of importance if he wants to gather the answers on one piece of paper. If he wants to have each answer on a separate piece of paper then he begins with whomever he wants. The piece of paper should be big enough for the muftī to answer clearly without having to make it brief, and thus detrimental to the questioner.

He should not omit a supplication for the one whom he is asking. Al-Ṣaymarī said, ‘If he asking for a fatwā from just one person he should say, “What is your position, and may Allah have mercy on you?” or “…may Allah be pleased with you?” or “…may Allah grant you enabling success, show you the right way and be pleased with your parents?” It is not good to say, “May Allah have mercy on us and you.” If he is asking for a fatwā from a group he should say, “What do you say, may Allah be pleased with you?”[157] or “What do the jurists say, may Allah the Exalted show them the right way?” He should present the piece of paper to the muftī spread out and he should take it spread out. He should not hold it up to his face nor give it rolled up.’

The ninth is that the one writing on the piece of paper should be someone who is good at formulating questions and giving them purpose, as well as possessing clear handwriting and wording and the ability to protect both of them[158] from being subject to misreading. Al-Ṣaymarī said, ‘One should be keen to see that the writer is from the people of knowledge.’ One of the leading jurists would not give a fatwā unless it was on a piece of paper that was written by a man who he himself was from the people of knowledge in his locality. The layperson should not demand that the muftī provide evidence. He should not say, “Why have you said this?” If he wants to put himself at ease by hearing the proof then he should ask for it in another gathering, or in the same gathering but after accepting the fatwā as it is.’ Al-Samʿānī said, ‘One is not prohibited from asking for evidence, and it is incumbent upon the muftī to mention the evidence if the matter is decisive and settled.[159] It is not incumbent upon him if the matter is not decisive and settled, because this would require him to discuss his ijtihād and this would be difficult for the layperson to understand.

The tenth is that if the person who experienced the event does not find a muftī or anyone else to convey the ruling of his event to him, not in his locality nor anywhere else, Al-Sheikh has said, ‘This is the issue of an interval of time between Revealed Laws,[160] and its ruling is the ruling of whatever existed before the appearance of the Revealed Law.’ The correct position regarding all of this is that legal responsibility is lifted from the slave and no ruling is established regarding him: no obligation, no prohibition and no other legal ruling. Thus, the owner of the piece of paper is not taken to task for anything that he did therein, and Allah knows best.

Related Post: Authority In Islam

[1] (tn): i.e. Shāfiʿīs
[2] (tn): Ar. al-iftāʾ
[3] (tn): i.e. the generations after the first three
[4] (tn): Ar. tabarrukan
[5] (tn): Ar. al-Anṣār
[6] (tn): Ar. majnūn, i.e. he never says ‘I don’t know’
[7] (tn): i.e. they get their questions answered
[8] (tn): Ar. al-imārah
[9] (tn): Narrated by Imams Al-Bukhārī and Muslim
[10] (tn): i.e. the caliph
[11] (tn): i.e. Al-Khaṭīb
[12] (tn): Ar. mukallaf
[13] (tn): Ar. al-murūʾah
[14] (tn): Ar. faqīh al-nafs
[15] (tn): Ar. al-taṣarruf, which also means to act independently
[16] (tn): Ar. al-istinbāṭ
[17] (tn): Ar. al-rāwī
[18] (tn): Ar. ḥukm al-qāḍī
[19] (tn): Ar. shahādah
[20] (tn): i.e. the muftī
[21] (tn): Ar. ijtihād
[22] (tn): i.e. nothing is known about the inward justice of the guardian and witnesses
[23] (tn): Ar. ahl al-hawāʾ, which is a byword for the people of cults and innovation
[24] (tn): i.e. the first Khawārij, whose main issue was takfīr (declaring Muslims to be disbelievers) and were known to be truthful, not the later manifestations of the cult that can be read about in Al-Ghunyā li Ṭālib Ṭarīq al-Ḥaqq by Imam ʿAbdul Qādir Al-Jilānī, for example.
[25] (tn): i.e. the Ismāʿīlīs and the Bāṭinyyah
[26] (tn): i.e. the Twelver Shīʿah
[27] (tn): i.e. their positions in fiqh
[2] (tn): i.e. Al-Ghazālī
[29] (tn): Ar. al-ʿibādāt,
[30] (tn): Ar. tuhmah, which can also mean suspicion
[31] (tn): i.e. a muftī can’t give a fatwā against what has been established in the Revealed Law, and neither can he give a fatwā regarding new issues. Rather, his job is to refer to the jurists (fuqahāʾ) from amongst his contemporaries or his forbearers.
[32] (tn): i.e. Al-Qāḍī Al-Shurayḥ, a famous judge in the time of Imam ʿAlī ibn Abī Ṭālib, may Allah be pleased with both of them
[33] (tn): i.e. in addition to the above footnote, the Qāḍī is stating that his rank is higher and his ruling is binding, as opposed to the fatwā of a muftī.
[34] (tn): i.e. that extent of knowledge
[35] (tn): Ar. al-ḥisāb
[36] (tn): Ar. bāb
[37] (tn): Ar. al-farāʾiḍ
[38] (tn): i.e. he must know the abovementioned sciences
[39] (tn): i.e. the four madhhabs
[40] (tn): i.e. Abū ʿAmr
[41] (tn): i.e. a scholar of the foundations of fiqh
[42] (tn): Ar. al-maʿānī
[43] (tn): Ar. al-takhrīj
[44] (tn): i.e. That which is either a position of Al-Shāfiʿī, a text from him, or an opinion of one of the scholars of the madhhab. Please see Minhāj Al-Ṭālibīn wa ʿUmdat al-Muftīn (Jeddah: Dār Al-Minhāj, 1432/2011), p.645.
[45] (tn): i.e. the imam of his madhab
[46] (tn): i.e. the Book and the Sunnah
[47] (tn): Ar. aṣḥāb al-wujūh
[48] (tn): i.e. imam of the madhhab
[49] (tn): Ar. iḥyāʾ al-ʿulūm
[50] (tn): Ar. al-mustaftī
[51] (tn): i.e. of the madhhab
[52] (tn): Ar. qawl mukharraj
[53] (tn): Sheikh Wahbah Al-Zuḥaylī explains takhrīj (extraction) as: ‘Al-Shāfiʿī answers with two different rulings regarding two situations that resemble each other, and it is not clear why the two rulings should be different. Thus, the companions transfer Al-Shāfiʿī’s answer in one situation to the other, and thus each situation comes to have two positions; one is called manṣūṣ and the other mukharraj. The manṣūṣ in one issue is the mukharraj in the other, and the manṣūṣ in the other is the mukharraj in the former. Thus, it is said, ‘There are two positions based on transferring (naql) and extraction’, and the most correct position is that the extracted position is not attributed to Al-Shāfiʿī, because maybe he reconsidered it and mentioned a difference.’ Al-Fiqh Al-Shāfiʿī Al-Muyassar, v. 1, p.74
[54] (tn): Ar. ghayr al-manqūl ʿalayh
[55] (tn): Ar. al-qiyās al-jallī, i.e. an analogy that is easy to recognise
[56] (tn): ḍābiṭ
[57] (tn): i.e. uṣūl al-fiqh, or foundations of jurisprudence
[58] (tn): i.e. a muftī
[59] (tn): in other words, a layperson is a scholar of what he knows
[60] (tn): i.e. based in the locality but not available at the moment
[61] (tn): please refer back to the narration in which he consulted one hundred and twenty of the Helpers.
[62] (tn): i.e. a hypothetical question
[63] (tn): Ar. yaḍmin, i.e. replace what was destroyed if it is fungible (e.g. dates) and replace its value if otherwise.
[64] (tn): i.e. the questioner is to blame because he asked someone who wasn’t qualified
[65] (tn): i.e. their false or deceptive statements
[66] (tn): i.e. the guilty parties
[67] (tn): Ar. al-ghasab, e.g. to offer to sell something which one wrongfully seized, and thus one would be selling that which isn’t one’s property
[68] (tn): Ar. al-nikāḥ, e.g. concealing infertility or chronic health issues until after the contract has been finalised
[69](tn): Attributed to the third century Shāfiʿī scholar Ibn Surayj, which is a situation in which a man says to his wife, ‘If I divorce you, then you are divorced prior to that three times.’ Therefore, if he divorces her, is it regarded as a conditional tripartite divorce or does it count as a divorce at all? Ibn Surayj’s opinion was that no divorce had taken place, because it is an impossible situation, as a man cannot divorce a woman after the third time, which is a final, irrevocable divorce. As Imam Ibn Qayyim al-Jawziyyah explains, ‘Thus, its occurrence leads to its non-occurrence, and that which its existence leads to its non-existence never existed, and this is the chosen position of Abū al-ʿAbbās ibn Surayj, and a group of Shāfiʿīs agreed with him, and it was rejected by the majority of jurists from the Mālikīs, Ḥanafīs, Ḥanbalīs and most of the Shāfiʿīs.’ Please see ʾIʿlām al-Muwaqqiʿīn ʿan Rabb il-ʿĀlamīn (Beirut: Dār Al-Kutub al-‘ʿIlmiyyah, 1411/1991), v. 3, p.197.
[70](tn): bayt al-māl
[71] (tn): e.g. a ruler has his own means of provision, and thus does not need to be paid by the people for the things he does.
[72] (tn): i.e. the caliph
[73] (tn): Ar. al-iqrār
[74] (tn): Ar. al-alfāẓ
[75] (tn): Ar. ʿurf
[76] (tn): Ar. shādh
[77] (tn): Ar. al-rājiḥ
[78] (tn): Ar. al-sharḥ, i.e. Al-Majmūʿ Sharḥ al-Muhadhdhib, of which this book is the introduction.
[79] (tn) i.e. for each obligatory prayer
[80] Sūrat Āl ʿImrān 3:106 (tn): i.e. Allah began by mentioning the faces that are whitened but when explaining He began with the faces that are blackened.
[81] (tn): i.e. sometimes a questioner appears to ask several questions at once but they are actually branch questions that stem from one fundamental question.
[82] (tn): Ar. al-ṭuhūr
[83] (tn): The full version of the ḥadīth can be found in the Musnad of Imam Al-Shāfiʿī (Beirut: Dār Al-Kutub Al-ʿIlmiyyah, n.d.), p.7, in which the Messenger of Allah, may Allah bless him and grant him peace, on the authority of Abū Hurayrah, may Allah be pleased with him, is asked by a sailor about performing wuḍūʾ with seawater. He didn’t ask about seafood but the Messenger of Allah, may Allah bless him and grant him peace, mentioned it because it was related to something that the questioner needed.
[84] (tn): i.e. the words Bismillahi Rraḥmāni Rraḥīm
[85] Sūrat Ṭaha 20:25 (tn): The rest of the supplication is: ‘and make my task easy for me. Loosen the knot in my tongue so that they will understand my words.’
[86] (tn): Ar. al-ḥamdu lillāh
[87] (tn): i.e. cut off from blessings. This ḥadīth has been related by Abū Dāwūd and others.
[88] (tn): Ar. fulān bin fulān al-fulānī
[89] (tn): For example, Imam al-Nawawī is called as such because he hails from the town of Nawā, which is in modern-day Syria.
[90] (tn): i.e. he mentions the madhhab that he follows as part of his name
[91] (tn): Both of these terms, i.e. midād and ḥibr, refer to ink, one being longer-lasting than the other.
[92] (tn): usually translated as ‘atheists’ or ‘heretics’, but the precise meaning is those who believe that the world is eternal. Please see al-Muʿjam al-Wasīṭ (Beirut: Dār Al-Fikr, 1998), s.v. زندق
[93] (tn): Umm Ḥabībah, may Allah be pleased with her, said, ‘O Allah, grant a long life to my husband, the Messenger of Allah, may Allah bless him and grant him peace, to my father, Abū Sufyān, and to my brother, Muʿāwiyah.’ The Prophet, may Allah bless him and grant him peace, said, {You have asked Allah, Mighty and Majestic, regarding lifespans that have been determined, days that have been numbered and provisions that have been distributed, and He will never hasten anything before its time or defer it beyond its time. If you had asked Allah to protect you from any punishment in the Fire or from any punishment in the grave that would have been better.} [Saḥīḥ Muslim bi Sharḥ Al-Nawawī (Beirut: Dār Al-Kutub Al-ʿIlmiyyah, 2003), v.16, p.174]
[94] (tn): i.e. the Messenger of Allah, may Allah bless him and grant him peace
[95] (tn): Please see Reliance, section o8.0, p.595-598
[96] (tn): i.e. kufr
[97] (tn): Ar. al-qiṣāṣ
[98] (tn): Ar. al-taʿzīr
[99] (tn): Please see the thirty-third ḥadīth in Al-Arbaʿīn al-Nawawiyyah
[100] (tn): i.e. because travelling would provide them both with an excuse not to fast
[101] (tn): i.e. there is no means for him to redeem himself before Allah
[102] (tn): Ar. al-qiṣāṣ
[103] (tn): The two ḥadīths being quoted are weak but can be used for such a purpose.
[104] (tn): i.e. a situation in which the number of shares are increased while the amount of each share is decreased. Please see Al-Raḥbiyyah fī ʿIlm al-Farāʾiḍ bi Sharḥ Sabṭ al-Mardīnī wa Ḥāshiyah al-ʿAlāmah al-Baqrī (Damascus: Dār al-Muṣtafā, 1429/2008), p.242-246, for further details.
[105] (tn): called as such because Imam ʿAlī ibn Abī Ṭālib, may Allah be pleased with him, discussed it on the minbar.
[106] (tn): This issue is discussed under the chapter on ḥajb, which is either ḥajb nuqsān or ḥajb ḥirmān. The former refers to when an inheritor receives less because of someone else, such as a husband receiving a quarter instead of a half because of the existence of a son. The latter refers to when an inheritor receives nothing because of someone else, such as grandson receiving nothing because of the existence of a son. Please see Al-Raḥbiyyah fī ʿIlm al-Farāʾiḍ, p.83-89, for further details.
[107] (tn): Please see Sūrat al-Nisāʾ 4:11
[108] (tn): i.e. there is little room for ijtihād in inheritance because it is mostly in the Qurʾān, namely Sūrat al-Nisāʾ 4:11-12 as well as āyah 176. Thus, a muftī would especially hate to get something wrong.
[109] (tn): this refers to a situation in which a person dies and before his inheritance has been divided one of his inheritors also dies, and thus the division of the first person’s inheritance is affected. Please see Al-Raḥbiyyah fī ʿIlm al-Farāʾiḍ p.133-139, for further details.
[110] (tn): Ar. al-waṣiyah
[111] (tn): Ar. munkar, which in this case would be an unqualified person giving fatwā
[112] (tn): i.e. his own fatwā will replace the other fatwā
[113] (tn): Ar. fitnah
[114] (tn): e.g. someone might be appointed muftī over a jurisdiction due to family connections and the like, and not necessarily because they’re qualified
[115] (tn): i.e. that he is not a qualified muftī
[116] (tn): i.e. of the paper
[117] (tn): i.e. the other fatwā has legitimate proofs etc.
[118] (tn): Ar. la nikāḥ illa bi walī, which can be found in the collections of Ibn Ḥibbān, Abū Dāwūd and Al-Tirmidhī
[119] (tn): Ar. al-rajʿah, which, according to the Revealed Law, means the return of a woman who is in her waiting period from an unfinalised, non-threefold divorce to the state of marriage. Please see Reliance, p.564-565, for further details.
[120] Sūrat Al-Baqarah 2:228
[121] (tn): i.e. mafhūm al-muwāfaqah and mafhūm al-mukhālafah. The former refers to a situation in which the understanding can be taken further in the same direction. For example, in Sūrat Al-Isrāʾ 17:23, Allah commands the believers not to say uff to their parents out of irritation. If this is forbidden, then obviously it is forbidden to verbally or physically assault them. The latter refers to the opposite understanding. For example, in Sūrat Al-Ḥujurāt 49:6 commands the believers to carefully scrutinise any report that comes from an iniquitous person, which means that if a report comes from an upright person then scrutiny is not obligatory. Please see the story of Imām Al-Shāfiʿī in the sixteenth footnote for another example.
[122] (tn): Ar. al-istidlāl
[123] (tn): Ar. al-kalām
[124] (tn): Ar. al-īmān
[125] (tn): i.e. of Allah
[126] (tn): Ar. mutashābihah
[127] (tn): i.e. the four madhhabs of Muslim Orthodoxy
[128] (tn): Ar. ­al-mutakallimūn
[129] (tn): i.e. the caliph
[130] (tn): Ar. bidʿah
[131] (tn): Ar. al-īmān al-mursal wa al-taṣdīq al-mujmal, which, for example, would mean believing and affirming that angels exist and even though one may later discover that there is an angel made of fire and ice who glorifies Allah by saying, ‘Glorified be the One Who made me from fire and ice,’ that would not mean that one’s faith was deficient in any way. Rather, one’s general faith was always sufficient. For further details on this angel, please see Imam Al-Suyūṭī’s Al-Ḥabāʾik fī Akhbār Al-Malāʾik (Damascus: Dār Al-Kitāb Al-ʿArabī, 1403/1983), p.132-135.
[132] (tn): i.e. it is for the scholastic theologians to deal with this and not the laity
[133] (tn): Ar. tafsīr
[134] (tn): Ar. al-ṣalāt al-wusṭā, which can be found in Sūrat al-Baqarah 2:238. According to the Mālikīs (Matn Al-Risālah by Imam Ibn Abī Zayd al-Qayrawānī (Casablanca: Dār Al-Rashād Al-Ḥadīthah, 1431/2010), p.24) it is the dawn (ṣubḥ) prayer while according to the Ḥanbalīs it is the mid-afternoon (ʿaṣr) prayer (Al-Rawḍ Al-Murbiʿ by Imām Manṣūr Al-Bahūtī (Beirut: Dār Al-Kutub Al-ʿArabī, 1406/1986), p.66). As for the Shāfiʿīs, Imām Al-Shāfiʿī himself and others scholars in the madhhab have held it to be ṣubḥ while Imāms Al-Nawawī and Al-Māwardī have held it to be ʿaṣr, and thus that would be the preferred (rājiḥ) position in the madhhab. Please see Nihāyat Al-Muḥtāj ilā Sharḥ Al-Minhāj by Imam Shams Al-Dīn Al-Ramlī (Beirut: Dār Al-Kutub Al-ʿIlmiyyah, 2009), v.1, p.235, and Mughnī Al-Muḥtāj ilā Maʿrifat Maʿānī Alfāẓ Al-Minhāj by Imām Al-Khaṭīb Al-Shirbīnī (Cairo: Dār Al-Ḥadīth, 1427/2006), v.1, p.303. One can also see Imam Al-Nawawī’s discussion in Ṣaḥīḥ Muslim bi Sharḥ Al-Nawawī (v.5, p.108-113).
[135] (tn): Ar. qurūʾ, which can be found in Sūrat al-Baqarah 2:228. According to the Shāfiʿīs (Minhāj Al-Ṭālibīn, p.445) and the Mālikīs (Matn Al-Risālah, p.96) it is three periods of purity, while according to the Ḥanbalīs (Al-Rawḍ Al-Murbiʿ, p.462) it is three menstrual cycles.
[136] Ar. biyadihi ʿuqdat un-nikāḥ, which can be found in Sūrat al-Baqarah 2:237
[137] (tn): Sūrat al-Kahf 18:9
[138] (tn): Sūrat al-Nisāʾ 4:53 and 124
[139] (tn): Sūrat Fāṭir 35:13
[140] (tn): Sūrat al-Ḥāqah 69:36
[141] (tn): Ar. al-mustaftī
[142] (tn): Ar. al-taqlīd
[143] (tn): Ar. al-tawātur
[144] i.e. Imam Abū Isḥāq al-Shīrāzī, the author of Al-Muhadhdhib, of which Imam al-Nawawī’s al-Majmūʿ is a commentary
[145] (tn): Ar. al-awraʿ
[146] (tn): i.e. of Imam Al-Shāfiʿī’s positions
[147] (tn): e.g. there was a Madīnan school before it came to be known as the Mālikī school, there was a Baṣran school before it came to be known as the Ḥanbalī school, etc.
[148] (tn): Ar. al-taʿāruḍ
[149] (tn): i.e. another opinion of Imam Al-Shāfiʿī
[150] (tn): i.e. personal reasoning
[151] (tn): i.e. qualified to be imitated
[152] (tn): Ar. naṣṣ
[153] (tn): i.e. the prayer direction can be indicated by the position of the sun, the stars and other physical factors
[154] (tn): i.e. in issues like the prayer direction, in which there is only one correct answer
[155] (tn): i.e. that muftī is the one he always goes to
[156] (tn): Ar. ḥākim, i.e. a political ruler or a marjaʿ, who is a faqīh who holds authority in all matters, temporal and spiritual, and thus the lay person has to follow it
[157] (tn): i.e. in Arabic, the questioner should use second-person, plural pronouns
[158] (tn): i.e. one’s handwriting and wording, as one should protect them from any ambiguity or obscurity
[159] (tn): For example, if someone were to ask why intoxicants are prohibited the muftī could quote Sūrat Al-Māʾidah 5:90
[160] (tn): i.e. the situation is similar to one in which there is no Revealed Law