Can Muslim Woman Teach Mixed Class

Answered by  Shaykh Muhammad Afifi al-Akiti

Question : Our Unsung Ustadhat and their teaching a ‘mixed’ class

bismillahi r-rahmani r-rahim nahmaduka ya Allah wa nashkuruka ya Allah bi-khayri mata’i d-dunya al-mar’ah as-salihah wa nusalli wa sallama salatan wa salaman da’iman ila d-dari l-akhirah wa ‘ala alihi wa sahbihi wa man tabi’ahum ila yawmi l-qiyamah!

Rabbi zidni ilman, wa rzuqni fahman!

Answer : Just as in the case of a man, a woman would be permitted to teach in any subject in which she is an ahl and a specialist, subject to the minimum legal conditions (see below) and proper decorum of course, whenever possible.

And yes, it is a well known fact that Imam Ibn Hajar studied from not only one, but 58 women teachers (Shafi’iyya faqihat as well as muhaddithat, and in other subjects too). Our own Mujtahid Imam studied Hadith under Nafisa bint al-Hasan (d. 208 H), for example. Amat al-Muhamiliyya (d. 377 H) was a Shafi’iyya faqiha (but could not be a Qadi [judge], even when her knowledge surpassed the academic requirements required to be one*), who gave out fatwas in public along with a male Mufti [juriconsult], Ibn Abi Hurayra in Baghdad; and her son was the famous Qadi al-Muhamili, etc. etc. (may Allah be pleased with all of them!)

*A Mufti can be said to outrank a Qadi when it is a matter of having knowledge [‘ilm] and reaching the level of Ijtihad. The opposite can be said, for example, when the ex-Hanafi and then Shafi’i jurist, Imam Ibn al-Sam’ani (may Allah be pleased with him!), states that the shart [condition] of being a Qadi is stricter [aghlaz] than that of being a Mufti, given the two conditions of being free [hurriyya] and being male [dhukura] (MS: Ibn al-Sam’ani, Qawati’, folio 275a). That is why, in spite of the ideal, not all, indeed very few, judges reach the rank of a Mujtahid, whereas more jurists do. Although the standards decline as time goes by, the Mufti-Qadi ratio in the Ijtihad index remains pretty much the same.

As for your fiqhi question, “So is tajweed the only science in which a women can’t teach men?”

Where is the ‘ibara [source] in the fiqh manuals that backs this statement and who among our classical fuqaha’ have said this and what is the ‘illa [legal basis] to say that an ustadha cannot teach Tajwid to the opposite sex, if all of the legal limits and precautions are already met? At least some Tajwid can be taught, even unqualifiedly, as we will see below. This simplistic statement needs to be qualified, for a jurist could see that there is tafsil in this mas’ala, and insight is required here for students of fiqh.

Furu’ A: There is no question, of course, that an ustadha can teach a boy who has not yet reached puberty (in any subject), even when Nazar [looking directly] is involved (and in fact, in my part of the world it is NORMAL for the women to teach boys reading the Qur’an along with the rules of Tajwid, even in a non-madrasa setting). [Hukm Shar’i = Jawaz Mutlaqan]

Furu’ B: If the teaching involves Ikhtilat [a congregation composed of the two opposite sexes] among adults, then there is further tafsil in this mas’ala. [Hukm Shar’i = Jawaz bi-Shurutin]

Tafsil A of Furu’ B: When the teaching does not involve Nazar, then it is allowed. However, there are measures to be taken to ensure proper decorum when a mature woman wants to seek learning or has to teach an Ikhtilat classroom. The three conditions required in the case for a male teacher teaching an Ikhtilat classroom or vice versa, are (in the example of a male teaching):

1. That the female student could not find any female/mahram teacher(s) in her area who could teach the particular subject or point in question (in any subject valid to teach, whether religious or secular), or that the qualified teacher in this case refused to teach.

2. That the activity be free from fitna (what is meant by ‚’fitna’ here is ‘to commit fornication/adultery or their preludes’ [al-zina wa-muqaddimatihi]: a standard example of a prelude to Zina given by Imam Ibn Hajar, for example, is to be in a state of unlawful seclusion [khalwa] – and in our school, a woman alone with two or more non-mahram men in a closed enclosure where an untoward incident could happen without the outside world knowing directly (so a woman passenger driven by a male driver in a London black cab in broad daylight will not count, for example) constitutes a khalwa, but not if two women are with one non-mahram man).

3. That the teaching is done ‘from behind the hijab’ [wara’ al-hijab], that is, steps are taken to ensure that decorous norms of behaviour are maintained between the opposite sexes which can be achieved either, as is usually achieved as in the case of an Ikhtilat congregation of a prayer in a mosque or anywhere else, by there being a simple partition (even if transparent), or that the Hijab/Niqab is worn by the women if there is no partition and so on.

Tafsil B of Furu’ B: When the teaching is difficult without Nazar. Then, the only time when this is allowed is, when the rare occasion arises such as when the subject matter/point being taught is a Fard ‘Ayn knowledge. It goes without saying here that the rest of the measures above must be met.

This is made clear by Imam Nawawi al-Jawi (may Allah be pleased with him!) in our dedicated manual on male-female relations, the ‘Uqud al-Lajin:

“Looking directly [Nazar] at her is also permitted only in the case of teaching what is obligatory for her, as mentioned by [Imam] al-Subki and other [Shafi’i jurists]. That [allowance] is (1) when she is deprived from those of her Mahram [such as her husband] and women who could teach her, as an analogy [Qiyas] with the case of seeking medical treatment; and (2) when it is difficult to teach from behind the Hijab. It is not permitted to look directly at her on account of teaching what is recommended.” [al-Nawawi al-Jawi, Sharh ‘Uqud al-Lajin, 3].

#Notes for students of fiqh#: Tafsil B is in effect a Takhfif [Alleviation] of Tafsil A because it is an istithna’ [legal exception] of the third shart owing to the ‘udhr [legal excuse] of teaching Fard ‘Ayn knowledge. It falls under one of the 7 Takhfif categories, namely, that of Takhfif Isqat [Alleviation due to Omission].

Now, at most, the Tajwid of the Fatiha is Fard ‘Ayn knowledge according to our school [al-Saqqaf, Fawa’id Makkiya, 14]. So we have qualified for you the statement: “tajweed [is] the only science in which a women can’t teach men”; wisdom is required here and in spite this being a rare thing indeed, it is legally possible as such, and may even be necessary (for this is the minimum fiqhi ruling in this mas’ala which we know is far from what is perfect and Ihsan): for given a particular place and time, there may be occasions, let alone Ikhtilat but even Nazar is allowed, in the teaching of the Tajwid of Fatiha for adults. The wise jurist will know that in this mas’ala, each case is unique, and each is to be decided case by case.

##Further notes for students of fiqh## Although the original legal ruling [al-asl] in our school for an adult female reciting the Qur’an aloud (whether during or outside the Salat), such that a non-Mahram man could hear her recitation is Makruh, and not Haram [al-Mihi, Hashiya ‘ala Sharh al-Sittin al-Ramli, 63] (while it is Mubah of course for her to recite the Qur’an in front of the Mahram man and it is Haram for her to do the Adhan even in front of a Mahram man), but in the rare case when the above happens (that an ustadha has to end up teaching the Tajwid of Fatiha in an Ikhtilat classroom), then it is no longer Makruh for the non-Mahram men to hear her recitation following the qa’ida [legal maxim]: mA lA yatimmu l-wAjibu illA bi-hi fa-huwa wAjibun [that without which something obligatory cannot be completed, itself becomes obligatory].

++Fa’ida++ There is a famous discussion in Imam Ibn al-Salah’s Muqaddima on the question of hearing a teacher transmitting a Hadith from behind a Hijab. Although the Qawl Mu’tamad is that the transmission is valid, the background to this discussion was the Qawl related by one of the Wadi’un of ‘Ilm Hadith, Qadi al-Ramhurmuzi (may Allah be pleased with him!) of Shu’ba (may Allah be well pleased with him!), who held the opinion that someone who hears a Muhaddith/a without seeing the face may not relate from that Muhaddith/a (and among the ‘illa offered is that it may be Shaytan who has taken the Muhaddith/a’s form!) [Ibn al-Salah, Muqaddima, 261]; and all this fuss when dealing with non-Fard ‘Ayn knowledge, for ‘Ilm Hadith is not Fard ‘Ayn knowledge.

Some of us men from the Far East have teachers in knowledge whether religious (such as fiqh/tawhid) or secular (like Arabic/miqat), who were ustadhat, and it is not uncommon for us to hear stories, for example, that a young talib al-‘ilm’s three- or two-year course on the Fath al-Qarib was cut short before having nearly completed the whole Hashiya because he had sadly reached puberty. And it stands to reason that it is the faqiha who is best at teaching Bab Mahid, for example (and that one acquires a good reputation in our part of the world amongst scholars if one were fortunate enough to have learnt it from them), and that is why the late Musnid al-Dunya, Shaykh Muhammad Yasin al-Fadani al-Makki (may Allah be pleased with him!) would warn a student not to miss his opportunity learning Ahkam al-Nisa’ from them when it does not have to be a dispensation, and that he would also encourage a student to learn as much as possible at the tender age before reaching puberty from our ‘akhira mothers’ – if not from our own biological mothers – so that we may acquire their hilm and forbearance. And this is what is practiced in systematic Shafi’i colleges (these often having the reputation among the locals of being ‘strict’ (because of always seeking the wara’) and ‘orthodox’ [i.e., salaf]), namely the well established (some have taught for hundreds of years uninterrupted) pedigree madrasats, li-l-banin wa-l-banat, in Southeast Asia.

The fact remains that both what our history shows and what our living scholars do offer us the legal precedent of having, when the practical need arises, a Majlis Ta’lim (religious or otherwise) that is Ikhtilat in nature (whether conducted by a male vis-a-vis a classroom comprising both sexes, or vice versa). It may be that we in the Far West (i.e., bilad al-Afranj) feel uncomfortable and may even object if an ustadha be allowed to teach an Ikhtilat classroom, even after the respective party has exhausted all options and after having gone through the due legal process; if this is so then ask oneself, what is the point of the Niqab or the Hijab? Moreover, especially for those adults/mukallafs who have attended modern secular co-educational universities and schools whether in the West or in the East, should think twice as hard before raising their voices or having a bad opinion of an Ustadha teaching an Ikhtilat class in Fard ‘Ayn that does meet the minimum requirements of our Sacred Law. The least one could do then is to give to a class that the Shari’a has clearly exonerated the benefit of our husn al-zann and hope to Allah that in the face of the widespread decline today in the institutions of our scholastic learning, her class will continue to burn the candle of that dying tradition. It will be the more ironic if we who criticize might ourselves have sat in a majlis conducted by a non-Muslima in the ever expanding modern institutions, listening to what might at most be Mandub knowledge. Must we remind ourselves that the ones being criticized in this case are not only protected by their respective Hijabs but more importantly by their relevant ‘udhr? If there should be any double standards here, then li-maslahat al-‘ilm (bal li-ifadat al-‘ilm al-daruri), it is only right that the ‘ulum diniyya take priority over the ‘ulum dunyawiyya, and the single Fard ‘Ayn over the Mandubat.

All of the scholars (excluding Shu’ba, of course) who are mentioned in the above, including our teachers, are Shafi’is: members of a law school known for their strictness [tashdid] in the hukm shar’i relating to the ikhtilat between males and females.

wa akhiru kalimatina wa ja’ala-ha Allahu nafi’atan, amin!

al-faqir in Oxford,

Muhammad Afifi al-Akiti
28 Muharram 1425
20 III 2004

Select Bibliography:

Ibn al-Salah. Muqaddimat Ibn al-Salah wa Mahasin al-Istilah [of Shaykh al-Islam al-Bulqini]. Edited by ‘A’isha ‘Abd al-Rahman bint al-Shati’ [the Professor of Qur’anic Studies in the Qarawiyyin, Morocco]. Cairo: Matba’at Dar al-Kutub wa l-Watha’iq al-Qawmiyya, 1974. [A noteworthy Arabic edition, and by far, the best text available so far].

al-Mihi al-Shaybini. Hashiya ‘ala Sharh al-Ramli ‘ala al-Sittin Mas’ala [by Imam al-Zahid]. Bulaq, 1306 H.

Nawawi al-Jawi. Sharh ‘Uqud al-Lajin fi Bayan Huquq al-Zawjayn. Bulaq, 1302 H.

al-Saqqaf. al-Fawa’id al-Makkiyya fi-ma Yahtajahu Talabat al-Shafi’iya min al-Masa’il wa-l-Dawabit wa-l-Qawa’id al-Kulliya. In Majmu’at Sab’at Kutub Mufida. Cairo: Mustafa al-Babi al-Halabi, 1358 H.

On the Risala and the Appendices of Al-Umm

Answered by Shaykh Muhammad Afifi al-Akiti

Question : On the Risala and the Appendices of al-Umm

My question is regrading the 9 books that are usually added to al-Umm. Are they considered to be of the Imam’s new school or old school. Also, what effect did they have in the scholarly circles? And lastly, who exactly were the arguments in al-Risala directed towards?

Answer : 1. According to the popular riwaya, the Risala was originally written at the request of the Iraqi Muhaddith, Ibn Mahdi al-Lu’lu’i (d. 198 H). The main arguments were directed against the prevailing tendency in Iraq of some ra’y madhhabs in their use of personal opinion at the expense of naqli sources of our sacred law, especially as practiced by those in Basra.

2. The various books accompanying al-Umm known by our scholars as the appendices [Mulhaqat] contain, for the most part, the Qawl Qadim of the Mujtahid Imam. This is because most of the appendices of al-Umm are, in fact, works on ‘Ilm Khilaf (and not fiqh proper: Furu’), and Shafi’i scholars are well aware that many of the positions found in the Mujtahid’s khilafiyya works belong to the Qadim; but the Qawl Jadid, as well as the Qawl Azhar and the Qawl Mashhur have also been found in them. Because of that, they are to be used with extreme caution. The laborious task of combing through and sieving them is left to the the Consultants and Assessors of the school [Ashab al-Fatwa wa’l-Tarjih] like Imams al-Rafi’i and al-Nawawi and down to the Authorities of the school [Ashab al-Wujuh] like Imams al-Qaffal and al-Isfara’ini, and of course, the Independent-but-Affiliated Mujtahids [Mujtahid Mutlaq Muntasib] like Imam al-Muzani; together they make it known which are reliable. So the effect it had within the ranks of our fuqaha’, especially up until the likes of Imam al-Nawawi, was to use these appendices as indices (therefore as a tool) or cross-references, to the main text and NOT as the matn (main reference) of what is al-Umm.

The ‘real’ users of these Mulhaqat (meaning those who can be benefited by them; i.e., those who know how to use these indices and know the context or connections of each anecdote/mas’ala, for instance, and can recognize the Mujtahid Imam’s nusus and distinguish what is Nass from Mansus) no longer exist today (and therefore beware of those who use them or even quote al-Umm proper – unless it is for an academic exercise or used as an emphasis [tawkid] – in order to sum up a point of law to the exclusion of later legal judgements, for the former ones are frequently too compact for clarity). In fact, after the exhaustive mining performed by our Ashab al-Tarjih, there was no longer any need for later jurists and even heavyweights from among the Examiners of the school [Ashab al-Nuzzar], such as Imams al-Ramli and Ibn Hajar, to refer to them.

It may be appropriate here to remind ourselves of the meaning got from the well-quoted advice of Ibn Khaldun who warned against the dangers of “accepting knowledge from books for which no key is provided by teachers”: naqlu l-‘ilmi mina l-kutubi min ghayri miftAHi l-mu’allimIna.

May this be a cause for Fath and a means to be close to the Keys!

al-faqir in Oxford,

M. Afifi al-Akiti

22 Muharram 1425

14 III 2004

Lobsters and “Sea” Crabs in Shafi’i School

Answered by Shaykh Muhammad Afifi al-Akiti

Question : Lobsters and “Sea” Crabs

Answer: There are some Shafi`is going around saying that it is not permissible to eat lobsters and crabs. Their reasoning seems to be that (a) Arabic sartan [vocalized: saratan] is crab or lobster, or that (b) these types of crustaceans are considered barmawi [! Surely barmA’i is what was intended here, since al-Barmawi is a name of one of our jurists!]. An example of them saying that crab cannot be eaten is:

[The questioner provided the following from an internet reference–address omitted–reproducing also an Arabic fatwa translated into English:]

[Mustafti:]
Is it permissible to eat crab in our [Shafi’i] school? And what is the ruling regarding seafood?

[Mufti:]
It is not permissible to eat crab in our school. […]

[In the Arabic answer from that internet reference, there is a part of it which was left untranslated: a description of saratan [crab] that was quoted from the Tuhfa of Imam al-Bujayrimi [Tuhfat al-Habib, 5:231-232]. This quote is originally a passage from the Hayat al-Hayawan al-Kubra [2:19-20] by the Shafi’i jurist and zoologist, Imam al-Damiri. In spite of only the description (and not the hukm) of saratan being reproduced there, the one quoting it must have had the authority of the Iqna’ in mind, the text on which the Tuhfa is commenting, which does say (along with other Shafi’iyya texts) that to eat “saratan” is Haram. Note, however, that the same text of the Tuhfa which was relied upon in this quote goes on to relate the text of Imam al-Shabramallisi that allows eating another type of saratan (the marine one, as our answer will make clear below), which is also the same text reproduced in the I’anat Talibin, 2:352.]

As [an objection] for (a), in I`yanat [I’anat] al-Talibin (2:352) there is something indicating that the sartan [saratan] referred to here is some sort of Chinese animal, not the type described in al-Dimiri’s Hayat al-Hayawan al-Kubra.

[This is the text reproduced from al-Shabramallisi’s commentary upon Imam al-Ramli’s Nihaya. Also, Imam al-Shabramallisi’s information about the “Chinese animal” is actually from Imam al-Damiri; and it is technically not a ‘Chinese animal’ but a crab found in Bahr al-Sin [the China Sea], in other words, today’s South China Sea.].

As for [an objection for] (b), these animals cannot live independently of water. Take them out long enough and they die.

So, any chance for a very quick confirmation? [of the questioner’s confusion arising from the Mufti’s answer.] Something along the lines of “you’re wrong; they’re right” will suffice. Don’t want to take up your time.

Allahumma hidayatan li-s-sawab!

I am surprised to hear that some Shafi’is say that lobsters and marine crabs are Haram. I think this is a simple case of misunderstanding the name of this marine animal. A simple one-line answer would be: it is Haram to eat “land crabs” and it is Halal to eat “sea crabs.”

It is well known that there are two types of crabs: land and sea ones. In the lands of South East Asia, for example, we find both types of crabs, and at our madrasahs, we have been taught to differentiate between the two of them during the thanawiyya years. (All of our living teachers can’t be wrong about this, can they, vis-a-vis a dead reference in a book?) The latter crabs are of the type that cannot survive on land (which are called “saratan bahri” and they are not even considered by zoologists to be barma’i (not barmawi!) animals), and unlike the former type (which are colloquially known in our lands as “stone crabs”–they are usually hairy, having a strong smell, and people do not eat them), they are not found on the beaches. Sea crabs are not Haram and this is what Imam al-Shabramallisi (as the I’anat relates from the Hashiya of Imam al-Ramli [Nihaya, 8:151]) was referring to (and that it is not the saratan talked about in our books, thus, the legal ruling is quite the opposite). This is also the well known type of crab that is eaten by Shafi’is in South East Asia, such as lobsters or other types of marine crabs. To say that eating crabs is Haram without distinguishing between the two different types of crabs would be irresponsible, especially when this is not checked against what is happening in some of today’s Shafi’i community. There is no khilaf in the school about the Halal nature of sea crabs (the only khilaf is only with regards to whether it is Makruh to eat them or not). I looked at your internet reference (wow, there are Shafi’i Muftis now on the internet, al-hamduliLlah!) and although the quote from Imam al-Bujayrimi is correct (referring to saraTAn), but what is meant by our jurists and zoologists alike there by saratan (and anywhere else in our literature that prohibits saratan, such as Imam al-Bajuri’s Hashiya of Fath al-Qarib) are land or beach crabs (as the quote from Imam al-Damiri’s Animals is very clear that this crab lives on land (and the jurists define something as living on land if it looks for its food on land and can therefore survive on land); and by the way, Imam al-Damiri also did describe the “Chinese” crab in his Hayawan, 2:20)). With all due respect to the mufti, this is a case of quoting and relying solely on our “yellow books” without taking into account of living day realities, and this, I’m afraid is insufficient for our case. Maybe it is the fault of the questioner for he or she should have specified whether it was a beach crab (anyway, we have never heard a case of people eating beach crabs in our lands and moreover, the crabs sold at restaurants and shops are certainly not land ones!). For students of fiqh will surely know that once the ‘illa [legal reasoning] making something Haram in the first place is no longer there (and that unlike in the Levant, there are crabs found elsewhere in the world that cannot survive on land and they are not beach ones), then whether it is called saratan or not, the prohibition no longer stands. As with its ‘controversial’ name, we only have to remember the qa’ida coined by Imam al-Ghazali: “wa-lA mushAHHAta fi’l-asAmi ba’da fahmi al-ma’Ani” [There is no need to quibble about names, once the meaning is understood]. I remind all of us here, including myself, that unlike the Hanafis, the rest of the law-schools including the Shafi’is consider ALL aquatic animals even if they are NOT fish to be Halal (for we have been told, whether accurately or not, that the Hanafi school declares Haram ALL aquatic creatures EXCEPT fish). (Anyway, our jurists define ‘fish’ as: “any marine animals that do not live on land, even if it is not called ‘fish'” [al-Nawawi al-Jawi, Kashifat al-Saja’, 43].) The original ruling or the al-asl in our school is as Imam al-Nawawi famously said in the Majmu’ [al-Nawawi, Majmu’, 9:30]: “qultu aS-SaHIHu l-mu’tamadu anna jamI’a mA fI l-baHri taHillu maytatuhu illA D-Difda’a [I [i.e., al-Nawawi] say: The Qawl Sahih [Sound Position] as well as the Qawl Mu’tamad [Relied Upon Position] [of our school] is that the corpse [i.e., an animal died without it being slaughtered in accordance with the Shari’a] of all that is [living] in the ocean [i.e., water], is permissible [to eat], except frogs [because there is an explicit prohibition against killing frogs in the Hadiths; whereas, some other aquatic animals may also be excluded from this rule if there is an ‘illa that prohibits them such as if it is poisonous, for example]. As long as these crabs cannot survive and feed on land (which the zoologists have confirmed that they could not), they cannot be declared Haram. Anyway, there have been many fatwas or rather, clarification, issued by Shafi’i jurists (especially from the Hijaz and Hadramawt) since the last two centuries that allow the eating of marine crabs, and the most recent one to do so was the fatwa, two years ago, by Habib ‘Abdillah al-Jufri, one of our classically trained Shafi’i Mufti from Singapore.

#Nukat for students of Fiqh# The path that leads to the legal ruling that saratan bahri is Halal, follows one of either 3 legal considerations [turuq]: (1) because the creature is found to be lA ya’Ishu fi l-barri min HayawAni l-baHri (and not ya’Ishu fi l-barri min HayawAni l-baHri), so it is treated like a fish; or (2) the established hukm in our school that saratan is Haram is the Ijmal ruling and the Tafsil ruling is that an exception [istithna’] is made for this type of saratan because it is bahri (and this is the Shabramallisi case); or (3) an analogy is made with oysters, for example, for which there is a famous khilaf in this issue between Imams al-Rafi’i and al-Nawawi and that the Qawl Asahh is that it is Halal.

++Fa’ida++ The Maliki school considers even shore or land crabs to be Halal, the same saratan that our jurists have mentioned all along to be Haram. So masha Allah and al-hamduliLlah, when placed on the mizan of Imam al-Sha’rani, our school holds the balance between the more lenient Malikis (i.e., the takhfif end) and the very strict Hanafis (i.e., the tashdid end) in this mas’alah.

So the short answer is: no, you’re right, and they’re wrong, for precisely the legal reasons of (a) and (b)! It behoves you therefore to interpret and understand instead, that the Mufti’s answer is only with respect to the beach/land/shore crabs: “[Mufti:] It is not permissible to eat [beach/land/shore] crab in our school.” ~~Arjuzah fi al-Saratan ‘indana~~ iHfaZhA!

al-Hukmu fi s-saraTAni bi-‘urfihi # wa-l-Hukmu fi s-samA’i ka-s-saraTAni wa-in tajid saraTAnan fI l-buHuri # fa-hwa HalAlun jA’izun fI aklihi wa-in ya’ish saraTAnun fI l-bururi # fa-hwa HarAmun bArizun fI kutubi

(A poor and unworthy soul have composed this poem for the one lost when reading our books, so memorize these verses!)

[The legal ruling concerning the crab is according to its habit, and this ruling in the sky is (clear) like the Cancer: If you find a crab (living) under water, then it is Halal, and you may eat it; but if a crab (is found) to live on land, then it is Haram as is made clear in our books.]

Tawfiq is only with Allah and only He knows best!

May this be beneficial,

Muhammad Afifi al-Akiti ©
in Oxford,
3 Dhu l-Qa’dah 1424 or 27 XII 2003.

Select Bibliography:

al-Bakri. Hashiyat I’anat al-Talibin. 4 vols. Bulaq, 1300 H.

al-Bujayrimi. al-Bujayrimi ‘ala al-Khatib wa-huwa Hashiyat al-Bujayrmi al-Musammat Tuhfat al-Habib ‘ala Sharh al-Khatib al-Ma’ruf bi l-Iqna’ fi Hall Alfaz Abi Shuja’. 5 vols. Beirut: Dar al-Kutub al-‘Ilmiyah, 1996.

al-Damiri. Hayat al-Hayawan al-Kubra. 2 vols. Bulaq, 1305 H.

al-Nawawi. al-Majmu’ Sharh al-Muhadhdhab. Edited by Mahmud Matraji. 22 vols. Beirut: Dar al-Fikr, 1996.

al-Nawawi al-Jawi. Kashifat al-Saja Sharh Safinat al-Naja fi Usul al-Din wa-l-Fiqh. Bulaq, 1317 H.

al-Ramli. Nihayat al-Muhtaj ila Sharh al-Minhaj al-Nawawi. 8 vols. Beirut: Dar al-Kutub al-‘Ilmiyya, 1998.

Kissing the Thumbs, Etc. During Adhan?

Answered by Shaykh Muhammad Afifi al-Akiti

Question : Kissing the Thumbs, etc. during Adhan? I would like to know whether kissing the thumbs and putting them on your eyes on hearing the Prophet Muhammad (blessing and peace of Allah be upon him and his family) in the azan has any basis according to Shafi mazhab?


Answer : Ma sha’ Allah, Rabbi zidni ‘ilman!
In fiqh, the discussion of taqbil al-unbulatayn wa mash al-‘aynayn is usually found at the end of Bab Adhan. Certain gestures performed during the adhan, and specifically the ‘amal of kissing the thumbs and wiping the eye, are something known to Shafi’is, and there can be no objection whatsoever by our jurists (and any jurists for that matter) to those wishing to perform this ‘amal: as far as we are concerned, it is classified under the category of the Fada’il al-A’mal [I’anat, 1:243; al-Jurdani, Fath al-‘Allam, 2:140-1].

Among its legal bases [‘ilal] is that it is a Sunna of the first Khalifa of the Messenger of Allah (may Allah’s blessings and peace be upon him!) [i.e., an Athar of the first Khalifa], and it is also based on a number of Hadiths, of which the most well known is the Hadith of Abu Bakr (may Allah be well pleased with him!):

lammA sami’a qawla l-mu’adhdhini ashhadu anna MuHammadan rasUluLlAhi qAla hAdhA wa qabbila bATina l-unmulatayni l-sabbAbatayni wa masaHa ‘aynayhi fa-qAla SallaLlAhu ‘alayhi wa sallama man fa’ala mithla khalIlI faqad Hallat ‘alayhi shafA’atI [Whenever he [Abu Bakr] heard the Mu’addhin say: “I bear witness that Muhammad is the Messenger of Allah”, he would repeat this [phrase as it is the Mandub of Adhan] and would kiss the tip of the index fingers [or thumbs] and wipe his eyes. The Prophet (may Allah’s peace and blessings be upon him!) said: whosoever does what my friend [i.e., Abu Bakr] did, my intercession will come down upon him] (Related by al-Daylami, with variants).

Almost all of the Muhaddith consider this and other Hadiths like it to be weak [Da’if] (at its lowest level, a Marfu’ Hadith [something ascribed to the Prophet]; and it is because the Hadith is Da’if that the ‘amal is counted among the Fada’il, and not the confirmed Sunna!). Nevertheless, this is definitely not a fabricated Hadith [Mawdu’], and weak Hadiths are not and cannot be considered as false and lies. Furthermore, as Sayyid ‘Alawi al-Maliki (may Allah be pleased with him!) reported in his dedicated treatise on the rules concerning the use of weak Hadiths, the Manhal Latif, that scholars of the four law-schools [madhhab] concurred by Ijma’ [Consensus]–and that this Ijma’ was recorded from the time of the Mujtahid Imam, Ahmad Ibn Hanbal (may Allah be well pleased with him!) until now–that any Hadith which are Da’if (as long as it is not Mawdu’), can be acted upon for the Fada’il al-A’mal [‘Alawi al-Maliki, Manhal, 251-253]. Literally, “Fada’il al-A’mal” means ‘extra works’; but technically it means the extra acts of devotion performed, or refrained from, beyond one’s call of duty in order to please the Lawmaker, that is, an ‘amal that can lead to it’s being classed either as recommended [i.e., Mandub/Sunna/Mustahabb] or disliked [Makruh] but never Wajib [obligatory] or Haram [prohibited]. In this mas’ala, of course, it is a recommended act (and not Makruh).

Know that he who blames others–in the name of bid’a–for carrying out an ‘amal, saying that it is based on a weak Hadith or that the ‘amal is not based on an authentic Hadith, shows a sign that he may not be a trained faqih (whether he is called a Mufti/Shaykh/Mawlana or not); and that he probably has knowledge only of the literal Arabic but not a deep understanding of what is beyond the text, which is what the jurist is expected to know. In the old days, when scholarship was taken for granted (because scholastic ‘alims were many and accessible then), even the public knew that a weak Hadith can form the basis of an ‘amal. Imam al-Nawawi (may Allah be pleased with him!), in his popular work the Adhkar, says:

“The specialists of Hadiths [i.e., Muhaddith] and the jurists [Fuqaha’] and other (scholars) have said that one is permitted, and in fact is recommended, to use weak Hadith in matters of ‘extra acts of devotion’ [Fada’il] and in ‘arousing one’s desire to do good and inspiring one’s fear from doing evil’ [Targhib wa al-Tarhib]–as long as it is not a fabricated Hadith. As for the legal rulings pertaining to what is lawful and unlawful [al-Halal wa al-Haram], buying and selling, marriage and divorce, and others like it [because all of them involve either an injunctive legal ruling [Hukm Shar’i Taklifi] (such as Haram and Wajib) or a stipulatory legal ruling [Hukm Shar’i Wad’i] (such as Shart and Mani’)] are concerned, one can only use a rigorously authenticated Hadith [Sahih] or a well authenticated Hadith [Hasan], except if a precautionary ruling [Ihtiyat] is [involved] in some matter relating to one of them. So, if a weak Hadith is found to object against some types of sales or some form of marriages, then it is recommended to avoid it (i.e., the sale or the marriage) even when it is not obligatory to do so [and even when the sale or the marriage is legally valid].” [al-Nawawi, Adhkar, 7-8]

I am not a Hanafi scholar (from whom you should really be asking your fiqhi/furu’ questions), but classical Hanafi reference texts such as those of the Muhaqqiq of your school, Ibn ‘Abidin (and in spite the fact that he knew this ‘amal is based on weak Hadiths, he nevertheless) relates the opinion that this ‘amal is permissible and even Mustahabb, that is, the act when done will entail a reward. [Ibn ‘Abidin, Hashiya, 2:84-5]. In practice, apart from the Hanafis, some Shafi’i communities have inherited this ‘amal, and among the Malikis, those who are in the Sudan.

###Qa’ida### To this end, we could sum up a point of law tersely in the following maxim: al-‘amalu bi-r-riDA yanfI l-Hurmata [an act that is consented to, prevents prohibition].
What I mean by this qa’ida is that once something has been accepted by some of the mustahiqq, in this case, the scholars and the public alike, no one has any right [haqq] to object to it.

So do not be swayed by what you read if Muslims have been doing this in the past and are still doing this fadila ‘amal. If there are others who blame you for carrying on with this inherited ‘amal, then know that the person, apart from wasting his precious time, knows not how to leave alone what does not concern him [tark ma la ya’nih] where his time could be better spent in improving the lot of the Muslims today or benefiting others in this world. Not only does he not know how to mind his own business, but he has no right whatsoever to censure [Ihtisab] you in the first place (and by not tolerating and by criticizing you on this, he himself is transgressing a well known rule of Bab Amr bi-l-Ma’ruf wa Nahi ‘an al-Munkar [roughly speaking, the duty of a Muslim to intervene when another is acting wrongly]: that the duty has no application in matters over which the fuqaha’ differed, thereby making himself liable for others to advise him). Furthermore, what is more embarrassing is that there is no legal basis [‘illa] and cause [sabab] that warrants a Hisba for this case, or at least no jurist properly schooled will ever entertain the thought. For when others are blamed by a Muhtasib for carrying out this ‘amal, it is no different from the case of someone becoming upset at the sight of a pedestrian suddenly stopping to remove a wad of old chewing gum from his path (ponder over this!) or at the very minimum, complaining why a customer is buying only apples and not oranges.

According to Shafi’i jurists, this act is counted among the Fada’il, and there are undeniable benefits for those who wish to take from it and they are means to make one rich in the Next world; and in the same way that the one performing it cannot criticize others for neglecting it, nor can others criticize those who carry on doing it. It is a matter of personal choice (for one’s private-but-made-public bank account is no one else’s in the Next world) if one wants to take or overlook this Fadila in this world: take it or leave it, no more.

Allahumma aj’alna mina’l-‘amilin wa-la taj’alna mina’l-mutakallikim!

[O’ Allah! Make us among those who do some work, not among those who can only talk]; Amin!

May this be of benefit.

wa sallallahu ‘ala Muhammadin wa ‘ala alihi wa sahbihi wa sallam
wa billahi t-tawfiq wa l-hidaya wa l-hamdulillah rabbi l-‘alamin.

Your silent brother in Oxford,

M. Afifi al-Akiti
24 Muharram 1425
17 III 2004

Discounted’ Debt Transfer

Answered by Shaykh Muhammad Afifi al-Akiti

Question :Discounted’ Debt Transfer
(Hawala al-Dayn)

Bismillah al-Rahman al-Rahim, al-hamdulillah wa-l-salat wa-l-salam ‘ala Rasulillah, wa-ba’d.

Answer : This is the essence of the issue:

Can a debt (mature or future) be sold. If so can it be sold at a price lower or higher than its face value?

The reason that the issue of discounted bay’ al-dayn has come, is in relation to a project whose aim is to provide income to a waqf which is dedicated to supporting a mosque. The financiers will be providing capital by way of loan. This will be interest free. However, the financiers would like to have the option of tranferring their right to this money to someone else or to others. They may want to do this before the project is complete or after the project is complete but before the loan is paid in full. Thus there is a need to know where they can do this.

If so, can they transfer their right to someone else at a price lower than the value of the outstanding debt?

Secondly, is it possible to give the financiers an enforceable right to convert any part of the outstanding debt into equity so that they then (i.e from the date of the conversion) share in the profit and losses?”

Some useful fiqhi terminologies [mustalahat] of this Bab:

Muqrid =
Da’in = Mudin [lender/creditor]

Muqtarid =
Madin = Madyun [borrower/debtor]

Dayn =
Qard = The item on loan (such as gold and money, or wheat and barley, or foodstuff).

Muhil =
the one transferring the debt. [the first lender and the second borrower]

Muhtal =
Muhal = the one whose right to collect the debt is being transferred. [the second lender]

Muhal ‘Alayh =
the one to whom the debt is transferred to. [the first borrower]

Your first question starts off with a query about Bay’ al-Dayn [sale of debt] but it ends with what is in fact a discussion on Hawala [debt transfer]. Although, it might be for you, that the difference here is somewhat technical, it is important that you know what you are asking for, because there are differences of opinions among the leading schools of fiqh concerning the validity of Bay’ al-Dayn (for which, our school, the Shafi’is, made a conditional allowance for this type of transaction), while all four schools agree [Ittifaq] on the permissibility [Mubah] of Hawala transactions, and in fact the latter transaction is accepted by Ijma’ al-Nas [general consensus].

Now, you did not specify (if Bay’ al-Dayn was actually intended) whether it will be a Bay’ Dayn bi-Dayn [a transaction involving a debt with another debt] or Bay’ Dayn bi-‘Ayn [a transaction involving a debt with a thing]. However, from your question, I am assuming that Bay’ Dayn bi-‘Ayn is certainly not what was intended, and to a lesser extent, Bay’ Dayn bi-Dayn too. It turns out that your question is in fact concerned to address the following issue: “the financiers would like to have the option of transferring their right to this money to someone else or to others.” We can happily conclude that that is a discussion belonging to the Bab of Hawala (and of course, the answer here is yes). However, before attending to your requests, in what follows, I will briefly present the position of the Shafi’i school concerning both kinds of Bay’ al-Dayn.

There are differences of opinions in our school, with respect to both kinds of Bay’ al-Dayn.

As for Bay’ Dayn bi-‘Ayn, there is a famous khilaf in which the Qawl Azhar [the Clear Position] of Imam al-Nawawi in his Minhaj invalidates [Batil] this type of transaction. However, later jurists [muta’akkhirun], including the most important ones such as Imams Ibn Hajar, al-Ramli and Shaykh al-Islam Zakariyya al-Ansari allowed [Mubah] such transactions, when there is a need [Hajat] for it, and this is the Qawl Mu’tamad [Relied Upon Position] of the school, following in fact what Imam al-Nawawi himself said in his other work, the Rawda al-Talibin and Imam al-Rafi’i in Bab al-Khul’, validating [Sahih] such transactions [Ibn Hajar, Tuhfa, 6:30-31; al-Ramli, Nihaya, 4:92; Fath al-Wahhab, 1:176; cf. al-Nawawi, Rawda, 3:222-223]. (The khilaf here is actually due to the subject-matter of salam [forward sale; i.e., muslam fih].) The most important condition attached to this transaction is that the exchange of the two remunerations [qabd al-‘iwadayn; or in the Rawda: qabd al-badal] or at the very least, their identification [ta’yin] must take place in the Majlis al-Bay’ or al-‘Aqd [that is to say, when the agreement or transaction is first made], which means that all parties concerned must have taken into possession or have specified and agreed to what is due to them in one Majlis or before they part from each other–without this condition, the Shafi’is do not allow the sale of a debt to a third party [bay’ al-dayn li-ghayr man ‘alayh; note that for Hawala transactions, it is like bay’ al-dayn li-man ‘alayh]. (Other conditions include, the Dayn [what is on loan that will be used for sale, i.e., the Dayn Mabi’] must be monetary (such as gold), and not commodity (such as wheat), for example, and so on.)

An example of Bay’ Dayn bi-‘Ayn which is allowed is:

The Muqrid who happened to be strolling around the Suq, saw a garment of his liking. The Muqrid wanted to buy the garment, which is being sold for 100 dinars, but he unfortunately did not have the means to buy it at that time. So the Muqrid went looking for the Muqtarid (who owes him 150 dinars). Upon finding the Muqtarid, the Muqrid told him about his desire to purchase the garment and that he intends to sell his right to collect the debt for that garment. The Muqtarid agrees to this and so they both went to the shopkeeper and conducted the transaction. The transaction is concluded with the Muqrid receiving the garment, and in return, he sold his right to collect the debt to the third party here (i.e., the shopkeeper) for that merchandise. At the same time the Muqtarid then acknowledges (draws into a new loan agreement, for example) with the shopkeeper that he is willing to repay him his debt.

As for Bay’ Dayn bi-Dayn, the discussion of it found in an important Shafi’i training manual, the I’ana al-Talibin of Sayyid al-Bakri is sufficient for us:

“The Qawl Asahh [the More Correct Position] is that, Bay’ Dayn bi-Dayn is permissible when there is a need [Hajat; because it is a Rukhsa or dispensation]. That is because, the Muhil sells that which is in the responsibility of the Muhal ‘Alayh to him for that which is in his responsibility to the Muhtal; while the Muhtal sells that which is in the responsibility of the Muhil for that which is in the responsibility of the Muhal ‘Alayh. So the seller [Ba’i’] is the Muhil, while the buyer [Mushtari] is the Muhtal; and the merchandise [Mabi’] is the Muhil’s debt, while the price [Thaman] is the Muhtal’s debt.” [I’anat, 3:89-90].

The merchandise is a debt and the price is also a debt, so in reality, what we mean by Bay’ Dayn bi-Dayn, amounts to what is in fact an exchange of credits (i.e., Hawala). In other words, that transaction is a type of Hawala, and that transaction, which is originally invalid, but because it is considered a Rukhsa, is only valid when carried out in ‘Aqd Hawala [Transfer Agreements or Transactions]. This explains why some of our muta’akhkhir scholars like Sayyid al-Bakri and al-Bajuri, inserted a discussion on Bay’ Dayn bi-Dayn in their prolegomena to the Bab of Hawala.

So let us now move to answer the first question at hand, namely, we already know, that lenders have the option of transferring their right to collect the debt to someone else of their choosing, but, “can they transfer their right to someone else at a price lower than the value of the outstanding debt?”

I understand this ‘discount’ to mean, that the value of the debt between the Muhil and the Muhtal to be lower than the total debt between the Muhal ‘Alayh and the Muhil. So for example, the Muhal ‘Alayh first borrowed 200000 for the project from the Muhil for an undetermined period*, then, even while the loan is not yet mature, the Muhil, because of a need, had to borrow from the future Muhtal, 150000. The Muhil then transfers his right to collect the debt to the Muhtal (minimally, with the consent of both Muhil and Muhtal, and not the Muhal ‘Alayh; although the consent of the Muhal ‘Alayh is not required, the Muhal ‘Alayh nevertheless, should have knowledge of the nature of this Hawala or transfer), whether the whole 200000 will go to the Muhtal (meaning that the Muhtal gets an extra 50000; but there is tafsil in this hukm, see below) or only the 150000, and of course, certainly not less than 150000.

*
Note that for us Shafi’is, the Muqrid is not allowed to impose a condition that the loan is to be repaid on a certain date (even if the Muqtarid were to set or propose a date, it will not be legally binding or enforceable); this is because there is no khiyar shart [option of stipulation] in ‘Aqd Qard [Loan Transaction or Agreement], and either party can conclude the contract at any time (either by the Muqtarid returning the loan, or by the Muqrid, at any time after the first Majlis al-‘Aqd, demand the loan back, and if the Muqtarid asks for more time to settle the debt (for example, if he says, “give me one more week”), and the Muqrid agrees to this, then the loan is considered payable in the future [ajal], and when that week is up, then it is due or mature [hulul]–that is why, the Muqrid must judiciously decide (it is an important decision for him to make, in the same way before making a nadhr or a vow, for example) whether the ‘Aqd Qard will ‘perform’ and to judge, in this case, whether the Muqtarid have the means to return the loan; if it is apparent that it will turn out to be a non-performing loan (and the Muqrid happens to know this) and the future Muqtarid is not in desperate need [mudtarr], then it is actually Haram to enter into a loan transaction [I’anat, 3:59]; in fact, in that case, it would be better to give out charity or Sadaqa instead.

If so, the answer to your first question is yes. The standard discussion is found in the Fath al-Wahhab, where Shafi’i students learn the following:

“Even if Zayd [i.e., the Muhil] owes Bakr [i.e., the Muhtal] 5 [of something], while ‘Amr [i.e., the Muhal ‘Alayh] owes Zayd 10 [of something], and Zayd transfers [the right [haqq] to collect] five of (the debt ‘Amr owes Zayd) to Bakr, then, this is valid.” [Fath al-Wahhab, 1:213].

The Hukm Tafsil of ‘discounted’ Hawala (in the case of the Muhil’s debt (e.g. 150000) to the Muhtal is less than the Muhal ‘Alayh’s debt (e.g. 200000) to the Muhil) are as follows:

There are three possibilities.

(1) The Muhtal receives 200000. This can happen such as when the Muhil tells the Muhal ‘Alayh, “Give all that you owe me (i.e., 200000) to the Muhtal when your debt is due to be repaid.” This is an ijab kinaya [indirect offer] by the Muhil (perhaps due to his modesty) to the Muhal ‘Alayh, informing him of his intention that the Muhil wants the Muhtal to receive his gift (of 50000). (The Muhal ‘Alayh now becomes the Wakil [agent] for the Muhil who is the Muwakkil [commissioner], and the Muwakkal Fih [what is being commissioned] is the closure of the ‘Aqd Hiba [Gift Transaction] with the Muhtal.) When the time comes, the Muhil will then make an offer [ijab] on the Muhil’s behalf to the Muhtal and if the Muhtal accepts [qabul], the whole transaction is complete. In this case, out of the 200000 that the Muhtal gets, 150000 is through ‘Aqd Hawala, while the 50000 is through ‘Aqd Hiba. In the event that the Muhtal were to reject the offer, then the 50000 is to be returned to the Muhil.

(2) The Muhal ‘Alayh only pays the Muhtal, 150000. This can happen such as when the Muhil tells the Muhal ‘Alayh, “Give only what I owe (i.e., 150000) to the Muhtal when your debt is due to be repaid, and keep the rest.” In his instruction to the Muhal ‘Alayh, the Muhil, this time, has included his offer to the Muhal ‘Alayh, to receive his gift (of 50000). In this case, the Muhtal completes a straightforward Hawala transaction, while the outstanding debt of the Muhal ‘Alayh is converted into a Hiba.

(3) The Muhtal receives 150000, and the Muhil receives 50000. This can happen such as when the Muhil tells the Muhal ‘Alayh, “Give what I owe (i.e., 150000) to the Muhtal and return to me the rest what you owe me when all your debts are due to be repaid.” This is a sarih [clear] expression by the Muhil, asking that everything be returned to what is due to all parties. In this case, the ‘Aqd with the Muhtal is Hawala, while the Muhal ‘Alayh completes a straightforward ‘Aqd Qard. The Muhil can also, if he wishes, terminate the ‘Aqd Qard with the Muhal ‘Alayh, after the ‘Aqd Hawala is made between the Muhil and the Muhtal, by the Muhil asking the Muhal ‘Alayh to return the 50000 well before the loan between the Muhtal and the Muhal ‘Alayh is mature.

Now, the first scenario is the way of Ihsan and what is the best of possibilities and the optimum hukm. The second is better than the third, because there is an element of charity or sadaqa in it, while the last represents the minimum fiqhi ruling here.

Know, that it is permitted for the Muqrid to derive benefit [manfa’a] from his loan transaction, as long as the Muqrid does not initiate it (such as putting a clause or a condition in his loan agreement in order to get some benefit from the loan; for this will become Riba Qard [interest-loan], and it is Haram for him to profit even if a trifle from this loan). The benefit to the Muqrid can only come from the Muqtarid’s own choice and from the latter’s kind heart (in fact, it is demanded by our religion; although the fiqhi hukm for the Muqrid is, it is permissible or Mubah to benefit from his loan, for the Muqtarid it is Mandub, Sunna or recommended, when repaying his debts (of any item) to give what is better or more than what he owed in the first place – this is what is known among scholars as the “Ahsan Qada'”).

At the very least, part of the ‘giving more back’ is for the borrower to say for the lender, who has helped him in the first place, a Du’a, and to give him his blessings and Baraka to the lender such as when our Prophet Muhammad (may Allah bless him and grant him peace!) said the following upon returning a loan:

BArakallAhu fI ahlika wa-mAlika innamA jazA’u s-salafi l-hamdu wa-l-adA’u!
“May Allah give Baraka to your family and to your wealth! The reward of a loan is nothing but praise [i.e., by showing our appreciation and giving thanks] and fulfillment [i.e., by returning the loan].”

That is the reward for the Muqrid. For Muslims, to be a Muqrid is something recommended in our religion (and sometimes it becomes Wajib [obligatory] such as giving a loan to someone who is in desperate need or compelled to ask for a loan [mudtarr; not having a Hajat any longer, but Darura]; and sometimes it can be Makruh and even Haram, such as giving a loan to someone, with the Muqrid knowing that the loan will be used in acts of disobedience or Ma’siya): its fiqhi ruling is exactly like helping others in need. There is no denying that the act of giving a loan is an ‘amal that is very beneficial and has many fa’ida to the society, for everyone in our society will always have a need for some sort of help in one form or another. Remember that the Best of Creation (may Allah bless him and grant him peace!) said:

“Allah will [always] help [His] slave, so long as the slave [loves] helping his brother.” [AllAhu fI ‘awni l-‘abdi mA dAma l-‘abdu fI ‘awni akhIhi].

As for your second question, whether the Muqrid has “an enforceable right [I understand this as, ikrah bi-haqq] to convert any part of the outstanding debt into equity [saham] so that they then (i.e from the date of the conversion) share in the profit and losses?”

The Muqrid does not have an ‘enforceable right’ to convert the ‘Aqd Qard into ‘Aqd Sharika [partnership]. If he does that, then he will be committing an unjustly forced act [ikrah bi-ghayr haqq], which will not only be invalid, but Haram. Under ‘Aqd Qard (“the financiers will be providing capital by way of loan”), what you are asking for, will not be possible nor allowed. He only has rights over the Dayn, but not the Muqtarid. What the Muqrid could do is to terminate the ‘Aqd Qard first (which the Muqtarid will then have to return the Dayn or its equivalent value), and then renegotiate a new contract with the other party.

Since this is a “project whose aim is to provide income to a waqf which is dedicated to supporting a mosque,” (I am assuming here that the project itself is not a Waqf, of course, since it cannot be financed by a loan in the first place), and because I do not know the details and the nature of the project itself, but if it is ultimately meant for the servicing, upkeep and maintenance of the waqf [hifz al-waqf; given that there is the Mosque, the Waqf (for which the proceeds of its rent goes to the Mosque), and the Project (such as buying another house, though this time it is not made into an endowment, but the ‘Sahib al-Project’ intends through his goodwill to give as Sadaqa and charity, some or all of the rent to maintaining the Waqf], then would it not be better that all of the net profits should go to supporting that Waqf, rather than a share in the profits of this project?

Anyway, if you still want to know what the options are over the ‘profit-sharing’ of this project, then my recommendations would be:

(1) Do not provide the capital [mal] to this project by way of Qard [loan] in the first place, but instead, provide the capital by way of ‘Aqd Qirad [a profit-sharing venture for which the loss is borne entirely by the financiers] or ‘Aqd Sharika al-‘Inan [cooperative partnership]. But of course, this will be a different story altogether.

(2) Wait until after the completion of the ‘Aqd Qard, then enter into a new transaction or agreement with the ‘Sahib al-Project’, whether Qirad or Sharika.

(3) If you have to, then terminate the ‘Aqd Qard (by asking for the return of the Dayn). Once the loan transaction is completed, then you can do what you see fit, whether to enter into Qirad or Sharika with the other party.

May this be a source of help and not difficulty.

Only Allah, the Bestower of Fath knows best!

In your service,

Muhammad Afifi al-Akiti
Oxford
18 Rabi’ II 1424
19 VI 2003

Bibliography:

al-Bakri. Hashiya I’anat al-Talibin. 4 vols. Bulaq, 1300 H.

Ibn Hajar al-Haytami. Tuhfa al-Muhtaj bi-Sharh al-Minhaj al-Nawawi in Hawashi al-Shirwani wa-Ibn ‘Qasim ‘ala Tuhfa al-Muhtaj. Edited by Muhammad ‘Abd al-‘Aziz al-Khalidi. 13 vols. Beirut: Dar al-Kutub ‘Ilmiyya, 1996.

al-Nawawi. Rawda al-Talibin wa-‘Umdat al-Muftin. Edited by ‘Abdullah ‘Umar al-Baduri. 10 vols. Beirut: Dar al-Fikr, 1995.

al-Ramli. Nihaya al-Muhtaj ila Sharh al-Minhaj al-Nawawi. 8 vols. Beirut: Dar al-Kutub al-‘Ilmiyya, 1998.

Zakariyya al-Ansari. Fath al-Wahhab bi-Sharh Manhaj al-Tullab. 2 vols. Bulaq, 1315 H.

Al-Maqal Al-Ma’Thur Fi Al-Qawl Al-Mashhur

Answered by Shaykh Muhammad Afifi al-Akiti

Question : al-Maqal al-Ma’thur fi al-Qawl al-Mashhur
I have some basic question on terminology: what are the definitions of al-qawl al-mash-hur and al-qawl al-mu`tamad, both technically and practically? (I know the meanings of these terms in Arabic.) For example, I know that, practically, al-qawl al-mu`tamad on an issue is usually defined by Tuhfa-tul-Muhtaj or Nihaya-tul-Muhtaj, but I don’t know the technical definition of the term.

The main problem I’m having is that I don’t understand how al-qawl al-mash-hur can be weak or khilaf al-mu`tamad, since this begs the question: kayfa-shtahar in da’uf? (How did it become widespread — among the ulema, I presume — if it was weak?) Or am I mistaken in assuming that the shuhra here refers to the adopted position of the ulema, but rather refers to the mash-hur riwaya of Imam Shafi’i, which later mujtahids in the school made tarjeeh of?

bismillahi r-rahmana r-rahim, al-hamdulillah wa s-salatu wa s-salamu ‘ala rasulihi l-karim wa radiyallahu ‘an al-a’imma al-akhyar alladhina badhalu fi tablighi hadha d-din a’marahum la yuriduna bi-dhalika al-madih wa th-thana’ wa-innama yuriduna rida khaliq al-ard wa s-sama’ wa-li-dhalika ishtaharat bi-aqwalihim wa-ijtihadatihim al-madhahib!

Answer : There are classes of the Rajih [the dominant or distinguished opinion], and Qawl Mashhur is one of them (the others include Qawl Sahih, Azhar, Asahh, Jadid, etc.)

Whenever “al-mashhUr” appears in the Minhaj (23 times were recorded; in bab shahada, under the fasl, lA yuHkamu bi-shAhidin, the phrase ashhur is encountered instead), it has 4 meanings:

1. Historically, there was khilaf in the school on the matter; it may be considered a mas’ala khilafiyya but rarely.

2. It is the rajih opinion between two or more positions.

3. Its muqabil is weak (and technically known as: Qawl Gharib) because of the weakness of the evidence. Sometimes, if it can be established that its sigha [wording] is weak (for example, such that it is not qualified), then it may be adopted only when the apparent meaning of the Qawl Mashhur can be interpreted. This is rare, however, and if it occurs at all, the original report is usually found in a non-fiqhi work.*

4. The khilaf originated not among the Ashab, but with the Mujtahid Imam himself (like the relatively ‘weaker’ class: Qawl Azhar).

*A good case of this is Shaykh al-Islam Zakariyya al-Ansari’s ta’wil of the sigha of the Qawl Mashhur as reported by Imam al-Nawawi in his Sharh of Sahih Muslim in the mas’ala of whether the reward of the Qur’anic recitation reaches the dead.

In lay terms, the Qawl Mashhur refers to one of the conflicting fatwas or riwayas of our Mujtahid Imam. An example of this is in the mas’ala of dibagha [tanning], according to which the Qawl Mashhur as reported by Imam al-Nawawi in the Minhaj is that the inner side of the tanned hide is pure (as well as the outer surface (i.e., the fleece side), without there being any khilaf); and elsewhere we learn that this position is the Mujtahid Imam’s Qawl Jadid [New Position]. In scholarly terms, the khilaf is at the level of the Imam himself (and not at the level of our Ashab nor at the level of the Madhhab) and is itself technically known as the Qawlayn or the Aqwal of the Mujtahid Imam (instead of the Awjuh of the Ashab or the Turuq of the Madhhab). Sometimes, however, our Ashab al-Tarjih [jurists known as “the Assessors of the school”, such as Imams al-Nawawi and al-Rafi’i] were unable to identify with certainty whether it was a Qawl Qadim [First Position] or a Qawl Jadid of our Mujtahid Imam; therefore, NOT all Qawl Mashhur becomes the Qawl Mu’tamad and the position practiced in the school today. This is because, as Imam al-Ramli famously pointed out in his commentary to the muqaddima of the Minhaj [Nihaya, 1:48], a given Qawl Mashhur and its accompanying muqabil(s) can sometimes be: (a) both Qadim, or (b) both Jadid, or (c) a Jadid and a Qadim; sometimes (d) the Qawl and its muqabil were given by the Imam at different times, or (e) sometimes both were given at the same time; and (f) sometimes the Imam himself made a distinction [tarjih] between one of them, or (g) no tarjih was made between the Qawl or its muqabil, which was then left for the attention of later jurists.

Our recently departed teacher, the jurist Shaykh al-Tarshidi, versified in Rajaz the above observations of Imam al-Ramli for the benefit of latter day students [al-Tarshidi, Tadrib al-Nujaba’, 47]:

li-n-nawawiyyi l-iSTilAHu ‘azza fI # minhAji-hi fa-khudh-hu ma’ qalbin SafI
fa-l-aZharu l-mashhUru fI l-maqAli # min qawlay sh-shAfi’i aw aqwAli
immA jadIdAni qadImAni kamA # immA jadIdun wa-qadImun fa’lamA
qAla-humA fI waqtin aw waqtayni qad # rajjaHa li-l-aHadi aw lA qad warad

[The respected [Imam] al-Nawawi has [made use of] technical terms in his Minhaj; so take from it with a clear mind! The Clearer and the Popular Position is one among two or more opinions of [Imam] al-Shafi’i. Be it from a Jadid and a Jadid or a Qadim and a Qadim or on the other hand from a Jadid and a Qadim, know then [this fact]! Whether he said the two [opinions or more] at one or at different times, or whether or not he had distinguished one [from the other(s), according to what has already been related.]

This is the technical meaning of Qawl Mashhur found in most of our manuals (i.e., tallying with your expression: “the mash-hur riwaya of Imam Shafi’i”. However, it is also possible that sometimes our jurists use “mashhur” or “ashhur” in its more literal sense, and if that turns out to be the case (as with the statement of Imam al-Rafi’i concerning the mas’ala of Mizab [drains] in Bab Sharika [partnership]), then it refers to the position that has become widespread (or indeed ‘popular’) in the Madhhab [i.e, al-qawlu alladhI kathura al-qA’ilUna bi-hi fI l-madhhabi] (i.e., your expression: “the adopted position of the ulema”), which is likely to be the Qawl Mu’tamad, even though not necessarily through the Qawl Mashhur itself.

The Qawl Mu’tamad, is, on the other hand, the one relied upon and the one practiced and is the teaching opinion of the school today, based on one of the earlier Rajih positions. In lay terms, this is the final (or official) position that is now followed by the school. But in reality, this is a psuedo-term [istilah ghalat] and it is not used in the Minhaj (although Imam al-Nawawi has occasionally been observed to use the term in its literal sense), nor was it used in any early manuals of the school with a strict technical meaning. If there is a technical meaning at all to this term, an attempt to formulate a definition [i.e., its hadd naqis, so to speak] would be that this is set by later jurists (usually from the taraf of Imams al-Ramli and Ibn Hajar, such as whenever later authors as in the I’anat, or Imams al-Bajuri, or al-Bujayrimi, say “al-mu’tamad”), after they have made tarjih between or among the various positions of an earlier khilaf at the level of Qawl Asahh (but never Qawl Sahih, and rarely Qawl Azhar or Qawl Mashhur). So technically, the “Qawl Mu’tamad” is not an istilah of its own like the rest of the Rajih classes; but the case is rather that any one of the historical Rajih positions that has been authoritatively adopted by the school and favoured by its jurists and practiced by its followers is by convention called by our later jurists, “al-mu’tamadu” or some similar phrase–so that it is theoretically possible to trace each Qawl Mu’tamad today to one of its original Rajih positions. So it is not uncommon for jurists today to say, for example, “al-aZharu al-mu’tamadu” [the Qawl Azhar which is also the Qawl Mu’tamad] (as in the mas’ala for Naqa’ in Bab Hayd).

In practice, if one finds a Qawl Mashhur in an early work, it should always be checked against the latest manuals or with a living teacher of the text. When giving a fatwa to the lay person, and whenever there is khilaf on the issue, it is sufficient to mention, “the qawl mu’tamad is…” (so that the scholar can then see that there may be tafsil in the issue; while the ‘awamm will get what he or she wanted).

If you happen to be a native Arabic speaker, your questions are proof of how indispensable are the keys provided by teachers to access the knowledge preserved in our “yellow” books. And this is among the fruits of ‘ilm istilahat al-fiqhiyya.

And by this, may we be benefited by their knowledge and join them in the next world!

The insignificant one in obscurity who desperately needs some Fath,

Muhammad Afifi al-Akiti
Oxford
13 Dhu l-Hijja 1424
4 II 2004

Select Bibliography:

al-Ramli. Nihayat al-Muhtaj ila Sharh al-Minhaj al-Nawawi. 8 vols. Beirut: Dar al-Kutub al-‘Ilmiyya, 1998.

al-Tarshidi. Tadrib al-Nujaba’ fi Ba’d Istilahat al-Fuqaha’. Reneng Agung, East Java: al-Ma’had al-Islami al-Salafi Mahir al-Riyad, 1418 H.