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#1 [Permalink] Posted on 18th June 2014 10:08
This is based on an example (NOT A REAL LIFE SITUATION) because of this www.muftisays.com/forums/14-peoples-say/8907-unnecessary-...

Please try and see the importance of how a question should be asked. The details that are necessary and so on.

Please forgive me for the bad example, I had to rush into typing this and I'm sure others would have done a much better job. The point is, not every fatwa is for everyone and each and every fatwa needs to filled with the truth, the whole truth and nothing but the truth, WITH ALL the relevant details.

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It all comes down to how the question is posed and the intent behind it!


Here are two examples of one family and see the difference.

EXAMPLE 1

Salaam, Respected Mufti Saab,

My husband has gone crazy. He is saying sugar is Haram and will not let my son eat anything with sugar in it. He reads all the ingredients on everything we buy and says its haram, even the sugar packs are haram. There is nothing haram in these food products, yet he insists that we must not bring any food with sugar into the house. He is also lying to us, because I see him eating sugar coated krispy kream doughnuts who are certified by HFA.

Please help. I cant live like this.

Mother of Abdullah

REPLY 1

ASSALAMU ALAIKUM

11 Shawwaal 1420

Mother of Abdullah

Your e-mail dated 11 Shawwaal 1420 refers.

Your husband is a moron, he is making life difficult for all of you. He is a faasiq who will do anything to have you and your son killed. Our advice to you is that you seek a divorce from such a hallucinated person.

Was-salaam

Mufti XYZ



EXAMPLE 2

Salaam, Dear respected mufti saab.

My son has been diagnosed with diabetes and is at a very bad position. The doctors say that if my son consumes sugar in any form, he is increasing his chances of an early death. Please advise.

Father of Abdullah.

REPLY 2

ASSALAMU ALAIKUM

29 Shawwaal 1418

Father of Abdullah

Your e-mail dated 29 Shawwaal 1418 refers.

The doctors have clearly warned you that sugar will kill your son, therefore, the consumption of sugar for your son is HARAM

Was-salaam

Mufti XYZ
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#2 [Permalink] Posted on 18th June 2014 10:13
The Fatwa asking and Fatwa giving needs to be tightly controlled!
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#3 [Permalink] Posted on 18th June 2014 10:23

Some Protocols of Fatwa in Light of Classical Scholarship

Masjid doorBy Ustadh Abdus Shakur Brooks

Ibn Ābidīn (1252 AH), a high standing Hanafi faqīh famously known for his marginal commentary on Radd Al-Mukhtār, wrote a versification know as Rasm Al-Mufti (Protocols of Giving Fatwa) which outlines the details of exactly how, and what is obligatory on those who issue fatwa.

He declared at the outset of that poem:

اعلم بأن الواجب اتباع ما * ترجيحه عن أهله قد علما

أو كان ظاهر الواية ولم * يرجّحوا خلاف ذاك فاعلم

Know that it is obligatory to follow what the competent authorities [that is, the mujtahids in fatwa] have determined to be sound, or to follow the opinion of Zāhir Al-Riwāyah provided they [the mujtahids in fatwa] did not give preference to an opposing opinion [outside Zāhir Al-Riwayah]. So know this point!

The fact that Ibn Ābidīn chose to start with this very protocol regarding fatwa is no coincidence. The fact that he said, “So know this point!” points to the importance of the message. As it has been for centuries – as it was in his time and even more so today – the principle of adhering to the sound opinion of the senior mujtahid scholars of the school is very much abandoned and ignored so that unqualified pretenders, who fall short of the necessary qualifications of ijtihād that those senior scholars of the school possessed, take liberty in acting in contradiction and violation of established protocol while propagating their conduct as part of classical scholarship; namely following a madhhab, in spite of being in clear contradiction. Ibn Ābidīn goes on furthermore to expound on this point by explaining the couplets saying:

الواجب على من أراد أن يعمل لنفسه أو يفتي غيره أن يتبع القول الذي رجحه علماء مذهبه فلا يجوز له العمل أو الإفتاء بالمرجوح إلا في بعض المواضع كما سيأتي في النظم

و قد نقلوا الإجماع على ذالك

“It is obligatory on whoever who wants to act upon something or to give a fatwa to somebody else , to follow what the Ulama of his madhhab have determined to be the sound opinion (al-rājih). That being the case, he is not allowed to follow the weak opinion (al-marjūh) or to give a fatwa based on it, except in a few instances as will be mentioned in the poem. And verily the scholars have transmitted that there is consensus on this matter.”

Ibn Ābidīn goes on to say:

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

“My statement [in this couplet] ‘the competent authorities’ – meaning those senior scholars qualified to select opinions – is a indicative precept that not just every scholar qualifies in fulfilling the position of selecting the sound opinion.”

Furthermore Ibn Abidin towards the end of his introduction to his marginal commentary on Radd al-Muhtar, in the section concerning protocols of the Mufti, quoted his predecessor Ibn al-Humām (861 AH/Cairo) [1]:

وقد استقرّ رأي الأصوليين على أن المفتي هو المجتهد, فأما غير المجتهد ممّن يحفظ أقوال المجتهد, فليس بمفت, والواجب عليه إذا سئل أن يذكر قول المجتهد كالإمام على وجه الحكاية, فعرف أن ما يكون في زماننا من فتوى الموجودين ليس بفتوى, بل هو نقل كلام المفتي ليأخذ به المستفتي

“The experts in the science concerning the principles of usūl al-fiqh have established [the opinion] that the Mufti [in the real sense of the term] is the mujtahid. As for those who are not mujtahids and memorize/preserve the opinions of the mujtahids, they are not Muftis [in the real sense, meaning they are not mujtahids]. It is incumbent on those Muftis [meaning, non-mujtahids] when they are asked a question, to give the opinion of the mujtahid, like Imam Abu Hanifah for example by means of a report [meaning to answer in accordance to his fatwa regarding the issue]. Thus, it is seen that the fatwas that those in our times give are not fatwas in the real sense [because they are not based on ijtihād but rather transmission] rather, they are transmitted reports from the statements of the real Mufti so that the one who seeks a fatwa can act accordingly.”

One of the important points this passage displays is just how Ibn Abidīn’s principle above (in Sharh Rasm Al-Mufti) concurs with the transmission of his predecessors. He didn’t pull the principle from his hat, nor did he assume self-achieved understanding or application of the text. On the contrary , we see the opposite behavior in our times under the assumed idea of contextualization, which in proper terms is actually the abrogation of established principle and abandoning the text in exchange for unqualified speculation. In fact what it is, is the assumption to self-interpret the text, either by making it general, or specific, or abrogating it; without having a valid text (nass) from the senior scholars of the madhhab to support it. This type of assumed contextualization completely contradicts the foundations of usūl al-fiqh namely the principle:

لامساغ للاجتهاد في مورد النّص

“There is no permission to make ijtihād in the presence of a text.”

To shed more light on this principle it is worth quoting Shaykh Ahmad Al-Zurqā (1938 CE /1357 AH), a contemporary well-known for his mastery in the field of usūl al-fiqh, who declared in his Sharh Al-Qawā’id Al-Fiqhiyyah under the thirteenth principle (“There is no permission for ijtihād in the presence of a text”):

فأما فيما عداه ممّا لم يفوّض إليهم وقد وقع فيه الخلاف ، فلا مساغ لاجتهاد فيه ، بل الترجيح فيه تابع لترجيح المرجّحين من علماء المذهب على حسب ما هو مبسوط في رسم المفتي ، فليس للمفتي وللقاضي مخالفة ما رجحوه باجتهاد منه, ولو فعل لا يقبل منه, لأنه اجتهاد في مورد النصّ, والنصّ لا مساغ للاجتهاد في مورده .

“As for everything else – except that which has be excused – which they [the non-mujtahid] have not been given any permission [to exercise ijtihād], when there exist a difference of opinion concerning a matter then there is no permission whatsoever to make ijtihād in those issues. Indeed, even the question of opting for one of two contrary opinions [in the madhhab] has to be referred to the senior scholars of the madhhab, as described extensively in the subject concerning the protocols of a Mufti.

Thus, it is not permitted for the Mufti nor the Qādī to contradict what the authorities have given preference to (al-rājih), according to his own ijtihād. However, if he does contradict it, it will not be accepted for him since there is no permission for ijtihād in the presence of a nass [which is a text from the Imams of the madhhab in this case].”

Here is an example of a well-known and learned contemporary concurring to the principles which have been transmitted to us and preserved in the relied upon works of classical scholarship. In spite of his knowledge in the field of usūl he salutes the principle according to the understanding of the classical scholars.

[This is all so important] in a time [when] people who follow the protocols of classical scholarship are deemed as “people living in books” or “lack insight” or only knowing “the letter of the law.”

Seeing that we have focused here on want some of the Hanafi scholars have stated, in spite of the principal being general, let us take a look into the Maliki school.

Shaykh Muhammad Al-Kurashī (1101 AH), who was the Imam of Azhar University when it was still an astute place of learning, quoted Al-Tatā’ī (942 AH) who stated in his work of fatwa called Al-Durar Al-Maknūn:

وَأَمَّا مَنْ لَيْسَ مِنْهُمْ فَلا يَحْكُمُ إلا بِالْمَشْهُورِ وَإِنْ حَكَمَ بِغَيْرِهِ, فَإِنَّهُ يُفْسَخُ لأَنَّهُ مَعْزُولٌ عَنْ الْحُكْمِ بِهِ.

“As for those who are not from them [that is those who are classified as mujtahids], they are not permitted to give fatwa except according to the mashhūr. If they give fatwa contrary to it, then verily it will be nullified because [at the time of giving such fatwa] he had already been removed from his post.”

ابْنُ عَرَفَةَ لا يُعْتَبَرُ مِنْ أَحْكَامِ قُضَاةِ الْعَصْرِ إلا مَا لا يُخَالِفُ الْمَشْهُورَ وَمَذْهَبُ الْمُدَوَّنَةِ

“Ibn A’rafah (894 AH) [2] said: No relative consideration concerning judicial verdicts is applicable except for rulings that do not conflict with the mashhūr and the madhhab of Al-Mudawwanah.”

وَتَبِعَهُ الْبُرْزُلِيُّ فَقَالَ الَّذِي جَرَى عَلَيْهِ الْعَمَلُ أَنْ لا يَحْكُمَ الْقَاضِي بِغَيْرِ مَشْهُورِ مَذْهَبِ مَالِكٍ رَضِيَ اللَّهُ عَنْهُ

“Al-Burzūlī (894 AH /author of Fatāwa Al-Bazūli) concurred with Ibn A’rafah in that opinion, saying: The opinion that is obligatory to be enforced, in accordance with the practice/al-a’mal, is that a judge is not permitted to issue verdicts contrary to the mashhūr of the Maliki madhhab, may Allah be pleased with him.”

وَقَدْ وَقَعَ ذَلِكَ فِي زَمَنِ السُّيُورِيِّ فَفَسَخَهُ وَفَسَخَ الْغُبْرِينِيُّ حُكْمَ حَاكِمٍ بِقَوْلٍ شَاذٍّ, لأَنَّ مَنْ لَمْ يَكُنْ مِنْ أَهْلِ الاجْتِهَادِ وَلا مَعْرِفَةِ وُجُوهِ التَّرْجِيحِ لا يَجُوزُ لَهُ الْحُكْمُ بِالشَّاذِّ وَهُوَ مَعْزُولٌ عَنْهُ وَيُفْسَخُ حُكْمُهُ,

“This incident [of giving a verdict contrary to the mashhūr] occurred during the time of Al-Suyūri and he annulled it. Furthermore, Al-Gubrini annulled the verdict of a judge who ruled according to a extremely weak opinion/shādh. The reason being is because whoever is not from the people of ijtihād or those who know the procedure of making preference/tarjīh, it is not permissible for them to give verdicts according to shādh opinions. Furthermore, such a person is removed from their position and their fatwa is nullified.”

وَإِنَّمَا يَحْكُمُ بِغَيْرِ الْمَشْهُورِ مِنْ الْقُضَاةِ مَنْ ثَبَتَ لَهُ وَجْهُهُ وَثَبَتَ عِنْدَهُ تَرْجِيحُهُ وَلَيْسَ هَذَا فِي قُضَاةِ زَمَانِنَا بَلْ لا يَعْرِفُ كَثِيرٌ مِنْهُمْ النَّصَّ, وَإِنَّمَا يَحْكُمُونَ بِالتَّخْمِين

“Verily, those who are permitted to give verdicts contrary to the mashhūr from amongst the judges, are those who are renowned as the scholars of the madhhab or renowned for being scholars who are permitted to exercise preference/al-tarjīh [such as Ibn Rushd, Al-Māziri, Al-Qarāfi and others from amongst senior scholars]. Those kinds of jurists are no longer found in our times. In fact! Many of the them [in our times] don’t even know the primary texts [meaning in utmost depth as ijtihād requires], but in spite of that they give verdicts based on their baseless observations.”

So here we have another clear example of the later scholars depending on classical scholarship regarding the protocols of fatwa in what is binding upon the Mufti and Qādi. Al-Kurashī, who lived in the 12th century only some two hundred years ago, like Ibn Ābidīn, didn’t take the liberty in abandoning the principles but instead he relied upon the works of the classical scholars to establish the principle namely that the mufti who is not a mujtahid of any degree (in other words a muqallid) is obligated to give fatwa according to the rājih or the mashhūr. He relied up the classical scholars by merely citing what they said because there is nothing beyond principle then to abide by it. Thus the way of classical scholarship is depending upon the senior scholars of the school in what has been brought down to us, and we don’t take the liberty in assuming the position to operate, in the name of any madhhab, according to our impulse and neither do we assume the authority to apply a single principle except that we follow the senior scholars in their application. Nor do we assume the position to abrogate a ruling under the pretext of contextualization without a valid text.

As for Malikis of today who might think they qualify as a mujtahid of any degree, let him resort to this statement above as well as the many other reports that have come down to us concerning the fact that, as early as the eight century, scholars stated explicitly that mujtahids within the school of the least degree, never mind absolute mujtahids, were no where proven to be found. This is from the mouth of those classical scholars to whose works we ourselves rely upon in understanding the madhhab. They themselves counted themselves amongst those who did not qualify. So if we are depending on their works for understanding and they themselves disqualify themselves, then how deluded are we today to assume we have the qualifications to pull rank?

As for the Hanafis of today, let them refer to what Ibn Ābidīn and Ibn Humām as well as others have said.

As for the Shafi’is, let them refer to Shams Al-Dīn Al-Ramalī and Al-Ghazālī and the fact that Imam Suyūti’s claim of achieving a degree of ijtihād was critically rejected by the Shafi’i scholars in Cairo who took him to task for his claim, in spite of his vast knowledge. [See Faid Al-Qadīr, Pg.21, Darul Al-Fikr]

 

—————

Footnotes:

[1] His full name is Abu Abd Allah Muhmmad Ibn Muhammad Ibn A’rafah (803 AH). He was one of the supreme scholars of the Māliki madhhab from Tunisia. From his famous works is Al-Hudud in which he explains many technical terms of fiqh.

[2] Ibn al-Humām was one of those rarest of rare phenomena, for he combined mastery of the intellectual sciences with mastery of the transmitted ones, for he was a faqih, a muhaddith, and a mutatakallim; that is one who had mastered fiqh, hadith, and the science called kalam, which [deals] with beliefs. He was also an expert in the principles of fiqh and logic and grammar and narrators of hadith and principles of hadith. One of his shaikhs in the science of hadith was Ibn Hajr Al-‘Asqalani. Ibn al-Humam is a high authority in the Hanafi madhhab, the author of one of the most highly regarded commentaries on al-Hidayah, an important work of Hanafi fiqh.

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#4 [Permalink] Posted on 18th June 2014 10:39
This is very true....necessary information is purposely omitted so a a ruling is given in favour of ones nafs, this is in no fault by giver of the fatwa, but of the person asking. When asking for a ruling, be clear, concise, truthful and do no skip any detail regardless of how insignificant you may think it to be.

I'm not going to mention names or places, but following is one of many many examples of how people use the fatwa system for nafsani and worldly gain...

A Masjid had a property, it was a supermarket, the comitee members asked a profound and well known mufti if the takings from the supermarket were halal, and also if to rent out the supermarket chain etc was permissible. Shockingly the fatwa came out positive and the situation being viable.

Why shockingly?

Because just like any other supermarket, it sold alcohol products as well as other consumable haram products.

But obviously they had chosen not to let the Mufti sahib and public aware that this information of haram products being sold and profits being used for the masjid was omitted from the question.

Information within a fatwa will only consists of rulings depending on the information provided by the questioner, as br.abu Mohammeds opening post clearly illustrates.

Yes absolutely agree, there should be a tight control over fatwas being issued. A ruling for one person will differ for one person to another.....unfortunately it is common practice for laypersons in providing insufficient information when asking for rulings, if not completely dishonest.

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#5 [Permalink] Posted on 18th June 2014 10:47

Khul requests from Islamic Sharah councils: People deliberately manipulate the application to get the rulings which they desire.

Child Custody: People deliberately word court applications and/or Islamic Shariah council requests to get a desired outcome...

Fatwaas? In our time we rarely have Fatwaas but we have responses to specific queries pertaining to specific set of circumstances that’s why you have millions answers about Talaq! Talaq is a standard occurrence but our Ulama are responding to specific queries

Are these online "Fatwaas" or "Answers"?

Problem: We have people openly quoting and producing Fatwaas and then openly declaring "I won't be following this!"

Its Fatwa wars rather then Fatwa for actions...

Its really cheapening of Islamic Fiqh when people produce things and then say "I won't be following this or I disagree..."

I mean we are discussing Islamic Forums being Haram/Halal on a Forum (itself)...HOW SILLY can one get??? Those who are defending the Fatwa are still on a forum and vigorously arguing but NOT ACTING!

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#6 [Permalink] Posted on 18th June 2014 11:03
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I'm not going to mention names or places, but following is one of many many examples of how people use the fatawah system for nafsani and worldly gain


This is a true incident that I have witnessed my self.

I met a brother once who had divorced his wife twice in one go and was trying hard to have kids. I had advised them to redo their Nikah and gave the reasons and details for it, Alhumdulillah, within a couple of months they had the good news of a coming baby. A couple of years later, another 3 divorces were given. I clearly put my views forward when asked, but some time later we heard that they got a fatwa stating that they were not divorced because they still had one divorce left. The fatwa was given according to how they had worded the question. SubhanAllah. As far as we are concerned, the mufti was misled and now they are living the life of Zaani's
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#7 [Permalink] Posted on 18th June 2014 11:07

abu mohammed wrote:
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People don't bother with this anymore they now ask:

I have given multiple divorces in ONE GO do you know any Ulama who consider it ONE?

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