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Juristic Principles Concerning the non-Mujtahid Part 4

Many times a mufti will resort to using very specific terminology pertaining to rulings. Therefore, the layman is required to know the various types of rulings, their classifications and consequences for acting and not acting upon them.

This is part 4 of a series of articles. Click here to read Part 3. This is a treatise written by Shaikh Sa’d al-Shithri, translated by Ustadh Alomgir Ali.

Following the concessions of scholars (tatabbuʿ ar-rukhaṣ).

The scholars unanimously agreed that it is not permissible for the layman to follow the concessions of the scholars whereby he would follow a concession whenever he came across one in the fatāwa of the scholars. In fact, many scholars considered that having such an approach to be evil (fisq). This is because no scholar has ever permitted one to follow all of the concessions. This is also because the scholar who believes in one concession does not believe in the concessions of others. In addition to this, much has been narrated from the scholars warning people from following the mistakes of scholars (zallah al ʿālim).
Moreover, there are numerous texts that encourage people to choose the safer option (iḥtiyāṭ) for their dīn such as the ḥadīth: “Verily the ḥalāl is clear and the ḥarām is clear and between the both of them are doubtful matters that many people are not aware of. So whoever protects himself from doubtful matters safeguards his religion and honour.”1 Also, due to the ḥadīth: “Leave that which makes you doubt to that which does not make you doubt.”2

A layman adopting a mathhab (juristic school of thought).

It is not binding upon a layman (‘āmiyy) to ascribe himself to a school of thought, taking its default rulings (ʿazā’im) and concessions (rukhaṣ). In fact the majority of the scholars state that it is not permissible for the layman to do so3 because he cannot understand the nomenclature and terms of the scholars of the school of thought and thus it becomes obligatory upon him to ask a contemporary mufti regarding a particular matter.4
If it is said that scholars are still continuing to write works regarding the schools of thought in jurisprudence and thus we end up having books in ḥanafi, mālili, shāfi’ī and ḥanbali fiqh, then what is the point in having these works if acting upon them is not binding? It can be answered that the purpose behind these works is to facilitate learning (fiqh) and not (necessarily) acting upon everything that they mention. These works are without a shadow of a doubt very important and they posses great significance and merit in helping one understand the speech of Allāh (Subḥanahu wa ta’āla) and the speech of the Messenger (Ṣallāhu ‘alayhi wa salam) as well as to understand the different juristic matters.5

Repeating the process of asking for a fatwa for recurrent matters.

If a layman seeks a fatwa from a mujtahid regarding a matter and then acted upon it, and then the same matter occurred again, is it binding upon him to ask for the ruling again?
To answer this, a person will fall into one of two situations:

If the layman knew that the mujtahid based his ruling upon a sacred text or a matter of consensus. In this situation the layman is not required to ask for a ruling again
If on the other hand, the layman did not know what the mujtahid based his ruling upon, or he knew that he based it upon an evidence which is open to interpretation, then in this situation, is it binding upon him to ask for the ruling again? The scholars differed about this matter:
It is binding upon him to ask again because the mujtahid could have changed his ijithād.
It is not binding upon him since he could depend upon the previously issued fatwa.6

Chapter Three: Other juristic principles that concern the layman directly

The meanings of sharʿi ruling terms that are mentioned in fatāwā.

Many times a mufti will resort to using very specific terminology pertaining to rulings. Therefore, the layman is required to know the various types of rulings, their classifications and consequences for acting and not acting upon them. These rulings that pertain to actions (aḥkām taklīfiyyah) can be classified into five types:

Wājib (compulsory). It is defined as being that which the legislator commanded in binding and mandatory manner.7 An example of that is prayer. The legislator commanded it in a binding way: “…and establish the prayer”8 and thus it is compulsory. It is also called: maktūb, farḍ, ḥatm and lāzim.9
Mandūb (recommended). It is something the legislator encouraged without obligating it.10An example of that is pardoning someone who has wronged you. The legislator encouraged one to do so: “But indeed if any show patience and forgive, that would truly be an exercise of courageous will and resolution in the conduct of affairs.”11 Allāh did not obligate it and thus it is recommended. A person is rewarded for acting upon it if the person intended by it to draw closer to Allāh (Subḥanahu wa ta’āla) and he will not be punished for leaving it.12 It is also called: sunnah, mustaḥabb, taṭawwuʿ, ṭāʿah, nafl, qurbah, iḥsān and muraghghab fihī.13
Ḥarām (prohibited). It is something that the legislator commanded one to leave in a binding manner.14 The one who intentionally carries out such an action deserves to be punished and the one who abstains from it whilst intending to draw closer to Allāh (Subḥanahu wa ta’āla) by that, is rewarded.15 An example of that would be the act of devouring usury, which the legislator has demanded that it be abandoned in a binding manner: “Do not devour usury…”,16 and thus it is prohibited. It is also called: maḥẓūr, mamnūʿ, mazjūr ʿanhu, maʿṣiyah ,dhanb, qabīḥ, mutawaʿad ʿalayhi, sayyi’ah, fāḥishah, ithm, ḥaraj, taḥrīm and ʿuqūbah.17
Makrūh (disliked). It is that which the legislator requested to be abandoned but in a non-binding manner. A person who intentionally leaves such an action to do draw closer to Allāh (Subḥanahu wa ta’āla) is rewarded whereas the one who carries it out is not punished.18
Mubāḥ (permissible). It is that which the legislator gave the choice between doing and not doing.19A person is not rewarded or punished for doing it or leaving it in essence.20An example of that would be trade. The legislator has given the choice between doing it and leaving it: “and Allāh has made trade ḥalāl…”21 and thus it is mubāḥ. It is also called: ḥalāl, ṭalq and jā’iz.22

Just as the layman is required to know the aḥkām rulings pertaining to actions (aḥkām taklīfiyyah), he is also required to know some of the meanings of the declaratory laws (aḥkām waḍʿiyyah). This is in order to understand the implications and meanings of what the mufti declares. It is the personal view of the author that it is a must for the layman to be aware of some of these laws. From amongst them:

Sharṭ (prerequisite). An example of that would be the prerequisite of purification for prayer. Its ruling is that the matter which has been stipulated for cannot come into effect unless the prerequisite has been fulfilled.
Māniʿ (impediment). An example of that would be fatherhood, which is an impediment for the obligation of retribution (qiṣāṣ)23 Its ruling is that the presence of the impediment will prevent the existence of the ruling.
Ṣaḥīḥ (valid). An example of that would be a prayer that has fulfilled all the prerequisites, pillars and obligations and has also had all impediments eliminated. An example of that would be a valid transaction or marriage. Its ruling is that the consequences that result from it become effective. It is also called mujzi’ and maqbūl.24
Fāsid (invalid). An invalid action is that which has not had a prerequisite fulfilled or a pillar whilst the person was able to do so. An example of that would be a prayer that was performed by someone who intentionally left out the ablution even though water was present and he was able to perform ablution with that water. Its ruling is that the consequences that result from it, had it been sound, do not become effective such as barā’ah adh-dhimmah (freedom from legal responsibility) and attaining reward. It is also called bāṭil.25
Adā’, which is an act that has been performed in its correct stated time. An example of that would be if a person prayed ẓuhr after the zenith (zawāl).
Qaḍā’, which is an act that has been performed outside of its correct stated time. An example of that would be a person fasting some days in Shawwāl instead of fasting them in Ramaḍān.26
Iʿādah, which is an action that has been performed again. An example of that would be a person who prayed by himself and then prayed the same prayer again but in congregation, or a person who prayed without purification and then performed the prayer again with purification. The second prayer would be considered Iʿādah.

The layman’s relationship with the variant modes of recitation (Qirā’āt)

The scholars of uṣūl have discussed the matters concerning qirā’āt in some detail. I shall start by clarifying the meanings behind these modes and then I will move on to discuss the relevant rulings for the layman that result from them.
The seven modes of recitation are all mutawātir (non-solitary reports which have numerous chains of transmission) to the Prophet (saw)27. All of these modes are in agreement with the script of the Uthmani muṣḥaf and are in agreement with the dictates of the Arabic language in one-way or another. These modes are considered to be from some of the seven aḥruf (dialects)that were mentioned in saying of the Prophet (saw): “The Qur’an was revealed in seven aḥruf.”28 Based on this premise, there are certain rulings concerning the qirā’āt and the layman. From them:

It is permissible to recite the Qur’ān with any of these modes and the reciter will be rewarded with the reward of reciting the Qur’ān because the modes are considered to be from the Qur’ān.
It is permissible for one praying to recite with any of the modes in his prayer due to them being inclusive in the saying of the Prophet (saw): “And then read whatever is easy for you from the Qur’ān.”
It is not deemed correct to condemn a person who chooses to recite with any of these modes. This is because it is absolutely permissible to do so.

It is reported that ‘Umar ibn al Khaṭṭāb (ra) once heard Hishām bin Ḥakīm (ra) recite Sūrah al Furqān in his prayers with a ḥarf which he had not heard before. ‘Umar (ra) was about to grab hold of him in his prayer but restrained himself until Hishām finished his prayer. ‘Umar (ra) then grabbed onto him using his cloak and said to him: “Who has taught you to recite this sūrah that I heard from you?” He replied: “The Messenger of Allāh (swt) taught it to me.” ‘Umar then said: “You have lied, for the Messenger of Allāh (swt) taught it to me in a manner which differs from the way you recited.” ‘Umar then took him to the Messenger (saw) and said to him: “I heard him recite Sūrah al Furqān in a way you did not teach me.” The Prophet (saw) then said: “Let him go (O Umar) and recite O Hishām” He then began to recite what ‘Umar (ra) heard and the Messenger of Allāh said: “This is how it was revealed.” Then he (saw) said: “Recite O ‘Umar!” And so he began to recite what Hishām recited and so the Messenger (saw) said: “This is how it was revealed.”29
There is another category of modes of recitation that have not been transmitted in a mutawātir fashion. It is not permissible to recite with them in prayer and it is considered disliked to recite with them outside of prayer and not prohibited as it is considered to be Qur’ān from a certain perspective.30

Notes:
Source: www.islam21c.com
1Bukhāri (2051)
2Tirmidhi (2518)
3Note that this is in reference to the absolute layman and is not an absolute statement. (Translator)
4Sharḥ al Kawkab al Munīr (4/574), Irshād al Fuḥūl p.202 etc.
5Taysīr al ʿAzīz al Ḥamīd p.486
6Sharḥ al Kawkab al Munīr (4/555), al Majmūʿ (1/98) etc.
7Sharḥ al Kawkab al Munīr (1/340)
8al Quran 17:78
9Ibid (1/349)
10ibid (1/340)
11
al-Quran 42:33
12ibid (1/402)
13Ibid (1/403)
14ibid (1/341)
15ibid (1/350)
16al-Quran 3:130
17ibid (1/386)
18ibid (1/413)
19ibid (1/342)
20ibid (1/422) “in essence” i.e. it could mean that a person is rewarded or punished if the permissible action was used as a means to lead to a good or bad act. (Translator’s comment).
21al-Quran 2:275
22Ibid (1/426)
23I.e. if the father killed his son, the father cannot be killed as a result of that.
24Ibid (1/467)
25Ibid (1/467)
26ibid (1/95)
27Ibid (2/127)
28Bukhāri (4992)
29Bukhāri 4992
30ibid 2/140

About Sheikh Alomgir Ali

Ustdah Alomgir has a BA in Arabic & English language and has studied Arabic and Islamic studies in Cairo. He is currently pursuing a degree in Shariah at al Azhar University in Cairo. He has translated a number of books and holds weekly Tafseer classes in London and is a regular Khateeb in a number of mosques in London. He also taught Arabic and Islamic studies at the Tayyibun Institute in London and is currently an instructor for the Sabeel retreats and seminars.

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