METHODOLOGY: MINHAJ AL-MAQAASIDIYYAH
Before we begin a discussion of any fiqh issue,
we should have an understanding of the basic methodology necessary to tackle
any issue in fiqh – what we call Usool al-Fiqh. Nine schools of thought
or madhdhaahib present their manaahij or methodologies to the world
today; the Sunni schools of Abu Hanifa, Imam Malik, Imam Shafii, and Ahmad
ibn Hanbal; the modern schools of the Jamhuriyya, and the Salafiyya; the Shia
Ja'afai schools, Aathari (textual) and Usooli (rational); and the emerging
school based on the Usul al-Fiqh of Al-Shatiibii, the Maqaasidiyya. This
last school is emerging and is best exemplified by the work of Ibn Ashur.
It is important to recognize that these nine
schools are based on different manaahij or methodologies of interpretation of
texts, of determination of the authentic Sunnah, of use of rational methods
such as analogy, and other considerations.
These differences result in differing opinions. As Muslims, we must respect all reasonable
minaahij. We do not have to agree, but
we have to respect others opinions as long as they are reasonably derived using
a reasonable methodology. The opinions
and intuitions of “spiritually inspired” saints do not constitute a reasonable
minhaj.[1] However,
the opinions of scholars obtain using a systematic and reasonable minhaj and
based upon a dalil with evidence from the sources of our deen, are to be
accorded complete respect.
Allah SWT has made it clear in the Qur’an: Fitnah
Akbar Min al Qatl; Fitnah Shadud Min al Qatl; Fitnah Ashdud Min al Qatl. Iktilaaf should never be a source of
fitnah. As evidenced by the hadith
regarding the expedition to the Bani Quraizah:
The Prophet told the people to pray Asr after arriving at the fort of
the Bani Quraizah. Some people set out,
but were delayed and it was getting late.
The people stopped and discussed how to proceed. One group continued on and prayed when they
reached the fort. The other group prayed
and then proceeded to the fort.
Afterwards, they asked the Prophet SAW about their ijtihad. He then did something very important. He did not rebuke either of them. If he had said one was right or both were
right, then he would have limited our fiqh to one or two minhaj, but he did not
rebuke either, leaving an opening for any reasonable minhaj.
Primary Sources of Shariah
All madhdhaahib of fiqh and all reasonable minaahij
posit that our deen is based on revelation from Allah SWT to His Prophet
Muhammad SAW. Revelation has come to us
in two forms; the Qur’an or direct revelation of the verbatim Word of Allah SWT
through the agency of the angel Jibreel (AS) to the Prophet Muhammad SAW, and
the Sunnah or actions, statements and tacit approvals of the Prophet Muhammad
SAW on matters for which he received Divine guidance. All the madhdhaahib agree that these two
sources, the Qur’an and the Sunnah, contain the Divine Legislation or Shariah,
and are binding upon us. However, these schools of thought differ as to the
determination of what is Sunnah, and as to the role and weight of other
potential sources.
It is beyond the scope of this paper to explore the differences among the
madhdhaahib as to determination of Sunnah.
However, we can say that none of us know the Sunnah directly. We simply were not there and there is no
video tape. All we have are reports of
what people felt was important or what they chose to remember. And these reports come in various forms. Some are found in historical works, such as
the Seerah of Ibn Hisham, or At-Ta’reekh
Moreover, serious recording of these ahadith did
not begin until the reign of the Umayyad Khalif, Umar Ibn Abdulaziz. (RA), who
reigned only three years from 98 AH to 101 AH.
While written materials were compiled by scholars, particularly ibn
Shihab az-Zuhri, none of these sihaafah are extant. Moreover, early collections
such as az-Zuhri and Imam Ahmad ibn Hanbal, collected ahadith without any
criticism or judging of the text as to authenticity, reasonableness or
compatibility with the Qur’an. This is why some have noted that both az-Zuhri
and Imam Ahmad have contradictory or multiple positions on fiqh matters.
The earliest extant written book of ahadith with a
consistent criteria for inclusion of material is Al-Muwatta of Imam
Malik ibn Anas (RA) (d. 124 AH) of Madina. Imam Malik included reports accepted
by the scholars of Madina as well as fatawa issued by Madina scholars,
including himself. Al-Muwatta builds
a fairly complete snapshot of the practices of the people of Madina and the
ahadith agreed upon by its scholars, one reason why Imam Ibn Taymiyyah
advocates for a preference for the Madini way in his book.
However, it was not until Imam al-Bukhaari that
muhadithuun began to more systematically analyze hadith for authenticity. This fact is important in understanding how
the madhdhaahib developed their minaahij, especially in criteria for accepting
ahadith. Imam Abu Hanifa died in 150 AH,
relatively early in the development of uloom al- hadith, so he narrowed his
criteria to exclude ahad hadith, hadith with only one Sahabi as a
narrator. Imam Malik, as we have seen
above, relied on the judgment of the people of Madina, those who were born and
raised in the City of Prophet , and
who had contact with the greatest number of Sahaba. Imam ash-Shafii did not specify criteria,
however, he was the first to develop Usul al Fiqh, focusing on the principle
that Islamic law is based on sources, Divine Sources and that one of those
sources is the Sunnah. Finally, after
the strengthening of the position of hadith over ra’y opinion, Imam Ahmed was
able to base his minhaj squarely on the foundation of the Qur’an and the
Sunnah, and publish a collection of hadith, the Musnad of Imam Ahmed.
However, we cannot lose sight of the fact, when
considering the minahij of fiqh of our madhdhaahib, that all of them were
founded before Imam al-Bukhaari. Imam al-Bukhaari came up in a time of
competition. The Abbasid khalifate
ushered in the methodology of “Ahl al Sunnah wa Jama,” moving the Sunnah of the
Prophet SAW and the ahadith that recorded that Sunnah to the second primary
source of law. With the increased
importance of ahadith in determining fiqh, the temptation to fake them to
support a favored position became too strong for some. Some, like the man who faked over 100 hadith
extolling the virtues of certain surah of the Qur’an in order to encourage
people to read our Holy Text, may have been for “benign” reasons, but no reason
is benign if it leads to undermining the credibility of all of the hadith
literature. Because of all the fakes,
promogated more often to support sectarian fitnah, our scholars had to devise
methods for grading ahadith. Imam Abu Dawud and Imam Tirmidhi were two of the first. Imam An-Nawawi was one of the most
thorough. Sheikh Albani is the most
recent. We value our muhadithuun, but we
must recall that no single agreed-upon criteria for sahih exists. The sahih of al-Bukhaari is vastly different
from that of Albani. Therefore, it falls
upon the fuqaha and mujtahiduun to set criteria for ahadith strong enough to
support a fiqh position.
Persuasive or Secondary Sources of
Shariah
We have established that our deen is based on
revelation: upon the Qur’an and the Sunnah.
However, they were revealed over 1400 years ago. How can Allah’s guidance for us remain
applicable at any time between its revelation and yawm al qiyaamah? Allah SWT has provided for that, of
course. By carefully studying the rights
He grants us, and the responsibilities He places upon us, including
prohibitions and penalties, we come to understand both the ‘illa and hikmah
underlying Shariah law. Just as we were
created for the purpose of worshipping and serving Him, the law He revealed to
us also has purposes, objectives.
The Maqaasid ash-Shariah are the objectives of the
Law. They form the basic purposes for which the Law is sent down by Allah
SWT. The Maqaasid are; promotion and protection of deen, promotion
and protection of life, promotion and protection of aql, promotion and
protection of dignity (lineage and honor), and promotion and protection of
property. Other scholars have cited other objectives, but they generally
fall into one of these five categories. For a thorough discussion of the
Maqaasid please consult Jasser Auda's book, Maqasid Al-Shariah
as Philosophy of Islamic Law: A Systems Approach, published
by IIIT.
Unlike
Sunni thought, which has long viewed the classic interpretation of prior
scholars as binding, particularly in matters upon which a “majority” of
scholars agree or upon which Ijma is thought to have been achieved; Shia
thought has long posited the necessity of “Nur al-Aan,” the Present
Light. While Sunni thought became mired in the closing of the proverbial
“Doors of Ijtehad,” Shia thought held that the decisions of the Marja’ or
Mujtahid were only binding during his lifetime. Once he was no longer
present and was out of touch with reality, the mukhallif was no longer obliged
to follow him, and was required to turn to a new, present marja'. As a point of Islamic history, this difference began early in our Ummah. From the early days, Abu Bakr (RAA) strove to stay true and to carry forward all of the practices of the Prophet SAW. Following this model, the successors adopted a “common law” understanding of Shariah law that emphasized following the Sunnah or Legacy of the Prophet, SAW. Decisions of Muslim scholars, judges and rulers, became binding on the community, just like the decisions of judges in the English and American common law systems. Common law decisions become the law itself, apart from the legislation upon which it ideally is based. Hence, we hear things in
Ali ibn Abi Talib, the chief judge of Madina and last of the four khulafaa ar-rashidun, opposed this common law position, and posited what we refer to today as a “civil law” system, based on the code itself. Judges’ decisions are not binding, although they may be highly persuasive. The law is the legislation. Judges are charged to apply the law to particular cases. The only thing that is binding is the law, not the application of the law. Today,
The Usool of the Maqaasidiyya reflects a more realistic understanding of legal systems, one that is capable of staying true to the Shariah Law, the Divine Law laid down by Allah in the Qur’an and Sunnah, and one that is also capable of remaining fresh and elastic so as to be able to meet all this forever changing world can demand. It also unites the two streams of our jurisprudence by throwing open the doors of ijtehad, shut by the Ottoman legal system that codified Shariah in the Mejella. Fourteen hundred years of common law precedent strangulated and stagnated our Shariah law system and resulted in apathy and jahilliyyah of the vast majority of Muslims, so much so that not only more complex areas of law such as zakat calculation and inheritance (warith) ignored and forgotten, but even the most basic aspects of fiqh al-ibadaat.
Opening the Doors of Ijtehad
When reform began with
Rashid Rida and later with Muhammad ibn Abdul Wahhab and Hassan Al-Banna, one
of the first branches of law that was given immediate attention was Wudu and
Salaat. Forget understanding how to make
a contract or distribute inheritance, we had forgotten when, where and how to
pray. While the Ikhwan chose to take a
jamhour approach to fiqh, following the opinion of the majority of scholars,
and therefore, attempting to avoid unnecessary fitnah in fiqh; the Salafiyya
developed a minhaj or methodology of fiqh influenced by the Usul of Imam Muhammad
ash-Shawkani, the great Yemini Zaidi scholar.[3]
The
minhaj developed by the Salafiyyah is preferable in many ways to a jamhour
position in that it presents a single consistent minhaj and not opinion based
on a mish mash of minaahij. A single minhaj is obviously less confusing for the
mukhallaf who simply wants to know what Allah SWT expects from him, just as the
Bedouin who asked the Prophet SAW to simply tell him what he should do. He believed firmly in Allah. All he wanted to know is what to do. The Prophet SAW taught him the five pillars
of Islam, and he covenanted to do exactly that.
The Prophet SAW stated that if he did, that man would surely enter Paradise .
In the
modern era of world travel in hours rather than months or years, and the
presence of a plethora of madhdhaahib and minaahij, the jamhour position is confusing
for the mukhallaf. In the past, we were born, raised and died in one place, one
madhhab, one minhaj. Not any more. We meet not just in Makkah, were “la jidal fi
Hajj”, but in Europe , Australia ,
Canada and America .
Because our fiqh may be derived using different minaahij and different dalil,
the mukhallaf is placed in the position of: “Sheikh Wahid says this and Sheikh
Ithnayn says that, and one uses this hadith and another uses that hadith, but
Sheikh Thalatha says that that hadith is daif etc etc…” While the Ikhwan’s
jamhour position helped initially to prevent fitnah in the West, the case is no
longer so. Our masaajid are increasingly
ethnically and religiously diverse. One case in point: despite an excellent
short pamphlet on how to view Ikhtilaf in Deen by Sheikh ibn al-Uthaimin, the
Salafiyyah and the Tablighi Jamaat, who follow South Asian Hanafi fiqh,
occasionally end up violently attacking each other because the two minhajan are
almost diametrically opposed.
As for the Ikhwan who follow the jamhour position,
disagreements over fiqh issues often lead to the two sides trying to “out
jamhour” one another. I have actually
heard opponents of a particular sheikh’s opinion attack his dalil by accusing
him of lying that the majority of scholars support his position. Instead of actually addressing the evidence
from the Divine Sources, the opponents stated that the Sheikh was wrong and
that the majority do not say what he says, no statistics or lists of shuyuk and
their opinions, or any other evidence, only blanket “ I’m more jamhour than
you,” statements.
Moreover, both the Jamhouriyyah and the Salafiyyah
have failed to open the doors of ijtehad.
Firstly, by following the jamhour, we are still following prior fiqh, often
derived by scholars over 1400 years ago, in very different circumstances. For example, early scholars held that the
testimony of a Muslim was trustworthy by a rebuttable presumption, and,
therefore, should be relied upon. Over
time our adab eroded and now, trustworthiness cannot be presumed at all.[4] So, by following the jamhour, our fiqh remains
the same, using the same dalil, and the old minaahij.
The Salafiyyah have also failed to open the doors
of ijtehad. Although they have posited a
new minhaj, that minhaj makes prior fatawa of shuyuk whom they recognize as
authoritative, as binding; in particular, the fatawa of Ibn Taymiyyah, Ibn
Qaiyyim al-Jawziyyah, and al-Jawzi, as well as the shuyuk of Saudi
Arabia including Sheikh Ibn Bazz and Sheikh
Ibn al-Uthaymin. As a result, the fiqh
remains the same, using the same dalil.
While both minaahij have achieved some flexibility
in dealing with new issues arising from new world circumstances, more so than
the traditional four sunni madhdhaahibs, both lead to taqlid. Surely a great irony - the two minaahij who
cry the most about taqlid in the four traditional madhdhaahibs, have actually succeeded
in entrenching taqlid further.
The minhaj I have found best meets the needs of a
united Ummah and actually opens the doors of ijtehad, overcoming blind taqlid, is
one based on the Qur’an, the Authentic Hadith, and the Maqaasid al-Shariah,
with highly persuasive secondary evidence from the opinions of the People of
Madina, and the Judgments of Imam Ali and Qadi Shuraih. Only the
Divine Sources and the Divine Objectives are binding. Anything interpreting those sources and
objectives is persuasive. Whether these
supplementary materials are highly persuasive or not so persuasive depends
greatly on the circumstances and discrete details.
As noted above, our deen is based on two Divine
Sources, the Qur’an and the Sunnah. The
Qur’an is the verbatim word of Allah SWT, revealed through the angel Gibreel
(AS) to the Prophet Muhammad (SAW), beginning with Surah al-Fatiha, and ending
with Surah An-Nas. It is Divine in
origin, and constitutes Divine Legislation. As through the verbal transmission
by qari and hufaadh, and the written transmission in the mushaf, we have direct
knowledge of it. The Sunnah is the actual acts, words, and tacit understandings
of the Prophet SAW. And we do not have
direct knowledge of it. None of us were
there. In order to know the Sunnah, we
must rely on reports. These reports are
of various qualities. Some have very short isnads or narration chaines, from
one companion to one tabi’.[5]
Others have extensive sanads, opening the doors to mistakes, misunderstandings,
and even malicious lies. The Qur’an is
Qati evidence – certain. The Sunnah is
unknown. The reports of acts, words and
tacit understandings are found in seerah, taareekh, fiqh, and hadith. The only reports subject to analytical
criticism as to veracity are the hadith.
And hadith are not Qati unless they are mutawatir. All other hadith are dhanni.
Because
hadith are dhanni, the biggest issue to be resolved on the road to this minhaj
is in the determination of authentic or sahih hadith. Although other
madhhahib may consider hadith of lesser grade to be binding, the dhanni nature
of hadith demands that the hadith must be very strong. Otherwise, we may fall terribly into error
and sin. To ascribe something to Allah
SWT is a grave sin. To ascribe something
to the Prophet is also a grave sin. [6] This
is a serious matter. Hadith must be
either mutawatir or sahih to count as binding in fiqh. All other grades of hadith are persuasively
only.
Admittedly,
this area will take time to consider and develop. However, one thing is
certain, the laudable attempt by Shaikh Nasruddin al-Albani, despite its
momentous effort and sincerity, falls well short of its goals. Both
Shaikh bin Bazz and Shaikh ibn al-Uthaimeen informed Shaikh al-Albani that his
minhaj of looking solely to the Ilm al-Rijal, the Knowledge of the Narrators,
was not sufficient to be able to call a hadith, sahih. Not only can an
isnad or chain of narrators be faked, but the books of Ilm al-Rijal come in two
flavors, Sunni and Shia. The great scholar and author of the
authoritative book on Uloom al Hadith, Kitab Ma'arifat Anwa 'Ilm Al Hadith, Shaikh
Shahrazuhri, notes that even in his time (1100 AD) it was not possible to
correctly determine authenticity of a hadith by Ilm al Rijal alone. How
then, would it be possible for a modern scholar like Shaikh al-Albani to do
this?
For now,
I will put forth the following criteria for determination of a sahih
hadith. The hadith should be found in substantial form in either the Muwatta
of Imam Malik, the Kitab al Kafi of Muhammad Ya'qub Kulayni, the Sahih
of Imam Bukhaari, or the Sahih of Imam Muslim; these are the earliest
hadith collections in chronological order. It must meet the criteria of Imam
Bukhaari as to isnad – in other words all the narrators should have actually
met one another. Its matin must meet the requirement of: "whatever
(hadith) agrees with the Book of God (the Qur'an), accept it. And whatever
contradicts it, reject it" It must not favor any particular sect, nor
should it be overly predictive or critical of future sectarian divisions.
Material that should have been known to more than one person should be reported
by more than one person. For example, prayers and communal actions should have
been reported by many people, not just one. Ahad hadith are only
acceptable if the matin contains material that only that person could have or
should have known.
All other hadith books and other material, be it Seerah, Tafsir, Taareekh, etc may be persuasive, but are not binding. As for aathar and the opinions of Imam Ali and Qadi Shuraih, they are highly persuasive, but require careful study to firstly determine authenticity, and secondly to determine applicability in the current context.
However, our law is not solely textual. In order to apply Divine Law in the present light, we have many tools which Allah SWT has given us. He instructs us to use reason, aql. It is most unfortunate that the excesses of the Mu’tazillah led Sunnis to abandon reason, and so leave us to either emotions and whims or absurd literalism. Allah gave us reason, aql; unless you deny this, then He meant us to use it. For this reason, in the absence of a clear text (nass), I agree to the use of rational methods, including Qiyas, and Maslahah al-Mursalah.
Any scholar should understand that Qiyas does not
mean just qiyas al-mithlu or analogy. Qiyas
means syllogism or Mantiq, i.e. Logic. Without an understanding of mantiq,
one cannot correctly exercise ijtehad. However, Qiyas has its limits and should
not be stretched too far. Sometimes the textual method and the aqli
method gives the same result, but using both methods and evaluating the
resulting positions produces the most thorough and well-supported
results. In fact, some fiqh texts such as Minhaj al Muslim, by
Sheikh Abu Bakr Jabir Al-Jaza’riy, take this
approach. So any new ruling should take into consideration both methods in extracting
the fiqh from the sources and developing a sound dalil.
We all need to keep in mind that the world of the
Alim is gray. In order to derive fiqh
from the Sources, he or she must look at all the Sources and look at the
totality of the evidence. He or she must
examine an issue from every direction.
As Sheikh Khassaf notes in Adab al-Qadi¸ to rule on an issue
while being unqualified as to knowledge and intellectual skill will land the
person in jehannam, and to fail to rule on an issue for which Allah SWT has
gifted you the knowledge and the intellectual skill with land you in
jehannam. That lovely hadith we all
know about scholars being rewarded twice for a correct judgment and even
rewarded once for trying and being mistaken is only for those with the
requisite knowledge and skill – not for someone who is unqualified – that
person will end up in hell fire.[7]
The Role of Maslahah Al-Mursalah
As for Maslahah or Public Policy, and in
particular, the qa’id, la darara wa la dirar – neither inflict harm nor repay
one harm with another. While this is important and should be taken into
account, it should not be overused or stretched too far either. Many
arguments for certain fiqh positions, including those regarding the
permissibility of eating commercial meat or for the calculation of the hilal
that signals the start of an Islamic month, seem to revolve around perceived
Maslahah, either the Maslahah of our wallets or the Maslahah of our non-Muslim
bosses. In perfect reflection of Jalal Al-e-Ahmed's Gharbzedegih,
our people scream about injustice in such and such a country, and then turn
into red-faced quaking cowards before their Western overlords when it comes to
fear of losing their flow of green paper. How many of us end up working
on Eid? How many of us even bother to go to Eid prayer, or stay for the
khutbah? We would rather celebrate Halloween – Samhain in the old Pagan
calendar -and Christmas. So we dress our kids up as witches and black
cats, instead of Ali Ibn Abi Talib or Umar ibn Khattab. (The permissibility or
appropriateness of the later is not the issue here.)
Maslahah
is important, but it must be viewed within the context of the Maqaasid
al-Shariah. Maslahah prevents inequities and difficulties in the law when the
law, as written, would actually impede the objectives of the Shariah. It is not meant to excuse us from exercising
effort nor is it meant to pander to our laziness. Maslahah protects against
darara – harm, not mere annoyance or inconvenience. When we focus on the Maqaasid,
we can achieve results that best meet our individual needs, our collective
needs, and our duties and obligations to each other and to Allah SWT.
[1]
“Spiritual inspiration” is another word for wahy and Allah SWT has told us that
the Prophet Muhammad SAW was the khatmah al Anbiyya (Seal of the Prophets). So
there is no prophet after him. And the
Prophet SAW has told us that all that remains of wahy is true dreams. So one must question the opinions and
intuitions of such people, especially where they conflict with revelation. Today, groups surrounding such individuals
abound, whether the Qadianis, the Ahbash, numerous sects of Ismailis or other
Sufi-like groups, they are lead by charismatic leaders and do not follow the
principle that the Qur’an and Sunnah are the primary sources of this deen. I would add to this Da’esh, which follows
tribal Arab traditions and the whims and fancies of leaders, not the Qur’an and
Sunnah. Shaytan calls to man from all
sides of the path, and unfortunately, we often allow ourselves to be mislead by
the promise of being better, smarter, more pious, more what ever, than
others. Kibriyya is the sin of Shaytan,
and we are not immune from it. May Allah SWT protect us from misguidance.
[2] These
reports are called hadith (sing) or ahadith (pl) in Arabic. However, over time English speakers have used
the term “hadith” to refer to these reports either singularly or in the plural. In this paper, we have used the terms
interchangeably. However, “ahadith”
always refers to the plural.
[3] Although
the Salafiyyah have expended great effort to attempt to prove that Imam
ash-Shawkani, a contemporary of Ibn Abdul Wahhab, was not a Zaidi, they have
not been successful. His writings show
he supported Zaidi thought as far as leadership and authority in the deen. What he disagreed with was the Zaidi school’s
minhaj for deriving fiqh that emphasized blind taqlid. Imam Zaid was a colleague and support of Abu
Hanifa’s minhaj, and Hanafi fiqh texts, such as Al-Hidayyah, clearly state that
the mukhallaf must follow a scholar and his fatawa blindly and not even ask
about the dalil. Imam ash-Shawkani and
the Salafiyya, including that school’s great mujtahid, Sheikh ibn al-Uthaimin,
have more than adequately disproved this position with ample evidence from the
Qur’an, as well as the Sunnah.
[4] Even
scholars from the 10th century AD on began to opine that early
evidentiary law needed to be revised to take into account the current behavior
of Muslims.
[5] For
example, Imam Malik narrates the Golden Isnad of Nafi’ from Ibn Umar.
[6] Surah
Anam 6:144, and “Telling lies about me is not
like telling lies about anyone else. Whoever tells lies about me deliberately,
let him take his place in Hell.” Narrated by al-Bukhaari, 1229.
[7] My
sheikh gets calls in the middle of nights requesting fatawa. Should I let the doctors pull the plug on my
terminally ill beloved mother? I got mad
at my wife and pronounced divorce. Is
this the third time? If so, what
now? Most questions Imams and daiyyas
answer are actually well settled. It’s “easy” to answer and look like a great
mufti. But as Suhaib Webb recounts, with
real cases and real lives, fatawa and qada are not so black and white. But by far the scariest part for me is the
sudden realization that this actually calls for ijtehad and not reliance on the
dalil of others. I have to decide. And the sinking feeling in the pit of my
stomach tells me I am actually qualified to make such a effort on this issue,
and if I do not, I will have betrayed my responsibility to Allah SWT and to His
Ummah. I have no choice. It’s frightening. Sometimes I end up crying
my heart out. If you do not have the
same fear, you are not qualified.
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