An Introduction to the Fiqh of Muslim Minorities
صفحة 1 من اصل 1
An Introduction to the Fiqh of Muslim Minorities
من طرف Eghelp الجمعة 27 فبراير 2015, 9:47 am
Islam, fiqh of Islam , Islamic minorities , Muslim
An Introduction to the Fiqh of Muslim Minorities
One of the most important fruits of Islamic jurisprudence is affording legal solutions to the problems and mishaps of the times. In its turn, jurisprudence is invariably colored by the various conditions and circumstances of man in any given period.
Among the topics of discussion between jurists and contemporary researchers, is the issue of "the fiqh of minorities". "Minorities" refers to a group of Muslims living in a region whose inhabitants are predominantly non-Muslims.
"The fiqh of minorities" is a new term that was not investigated in the juristic heritage of Muslims but was coined in response to the changing reality of the times. This is confirmed by the fact that the fiqh related to these minority groups is qualitative in nature and takes into account the relation of legal rulings to the conditions of a specific group living in a specific place in light of their specific circumstances where what is suitable for them may not be suitable for others." So the spatial circumstances of these minority groups affords them, in many instances, exigent justifications compelling a mufti to issue a fatwa (legal verdict) that is contrary to the established opinion of his school of jurisprudence, contrary to the opinion he deems dominant due to its evidences, or contrary to the fatwas of other muftis in areas where Muslims are the majority. Consequently, it is possible to say that the subject matter of the fiqh of minorities is the juristic rulings in relation to a Muslim living in a non-Muslim land.
Though this fiqh is specific in terms of its topics and problems, it operates within the framework of Islamic jurisprudence; hence, its reference is the Qur`an and the sunna and the textual evidences derived through the processes of ijma' (scholarly consensus), qiyas (analogy), istihsan (equity), al-masaleh al-mursalah (consideration of public interest), sad al-dhara`i' (blocking the means to evil), 'urf (customs), istihsab (presumption of continuity) and the other evidences that serve as the premises for scholarly opinions. Many of the issues related to these minority groups are analogous to issues mentioned in our juristic inherited literature; contemporary novel issues are considered old in genus, new in class. This evidences the importance of collecting the fatwas and rulings related to Muslim minority groups. This specific type of fatwas catered to the issues and needs of Muslim minorities help Muslim minority groups live under the umbrella of Islamic law and adhere to the rulings of their religion. Simultaneously, they help them integrate in their community without any dissonance between the rulings of their faith and the exigencies of life and in a manner that precludes any distress, hardships or oppression all of which are rejected by the venerable shari'a. God the Almighty says, "Allah doth not wish to place you in a difficulty" [Qur`an 5: 6] and "He …. Imposed no difficulties on you in religion" [Qur`an 22: 78].
Numerous conferences, workshops and research circles have been held to discuss topics related to this type of fiqh. This issue has acquired even particular importance lately in Europe and North America as part of rediscovering Muslim identity amidst the multifaceted challenges which the second and third generation Muslims face.
We shall attempt to give a brief introduction to the fiqh of minorities. It comprises the following:
1- A definition of the fiqh of minorities.
2- The importance of studying the fiqh of minorities.
3- The pillars of the fiqh of minorities.
1-Definition of the Fiqh of Minorities
The linguistic meaning of the word 'minority' is the opposite of 'majority' and means rarity or decrement. This meaning is most prominent in the technical definition of the term; the definitions revolve around the meaning of minority as a group of people, inferior in number and different in certain characteristics, usually color, religion, or culture, from a larger group of which it is an integral part. Dr. Ali Montaser al-Kattani defines 'minority' as, "A group of people living among a numerical majority and sharing a characteristic differing from the larger group and, in consequence, are treated differently from the majority."
Some scholars have defined the term as "a sub-ordinate group whose members share characteristics differing from those of the surrounding society. This group considers itself a community under the domination another majority group that enjoys superior societal privileges and who aim to deprive it of fully participating in the social, economic or political life and limit their role in the majority society."
It is interesting to note that the technical definitions underscore the numerical aspect as the determining factor of minority or majority status. This means that any group that is numerically inferior to another is the minority even if they are the ruling or sovereign group. However, this is not how we gauge the issue of the fiqh of minorities especially since in some places such as certain South African states and Mauritius, Muslims are numerically dominant even though these countries are not identified as Muslim. Numbers as the determinant of the concept of minority status does not suit our intended definition of the fiqh of minorities. Rather, our intended meaning refers to the presence of Muslims in countries where Muslims are neither the majority nor rulers i.e. non-Muslim lands. In this sense, the term minority group refers to "any group living among another sovereign group and differ from it in a certain characteristic." Based on this, the fiqh of minorities may be defined as "the legal rulings relating to Muslims living among a non-Muslim sovereign group." The characteristic feature of this fiqh is its specificity with respect to its topics and distinctive problems, though it is not independent of the general legal framework of Islamic law. Moreover, its legislative bases are the same as those implemented by the various juristic schools. The fiqh of minorities relies on both agreed upon evidences and controversial evidences. Moreover, many of the issues pertaining to the fiqh of minorities are analogous to issues mentioned in our inherited juristic literature though with new and contemporary configurations. Specifying the legal issues related to Muslim minorities to a particular kind of fiqh is a practical application that is subject to either approval or rejection. This kind of fiqh based on ijtihad may be considered fatwa for a particular group and, in this case, is an unequivocal application of the concept of a fatwa changing according to place which is one of the four aspects factoring in the change of fatwa. In this manner, it is removed from the vulnerability of the term and its implications. In other words, it is a contemporary application of the principle that a fatwa changes with time place and prevailing conditions.
Apart from this, in its essence, the fiqh of minorities deals with issues related to minorities from a different perspective because it emanates from a different reality. It may be that the capaciousness of opinions on matters based on ijtihad and the existential reality surrounding Muslims living in non-Muslim countries dictates this approach towards tackling issues from a different view point. As previously mentioned, many researchers have asserted that the fiqh of minorities is a new concept, though some scholars maintain otherwise. The legal opinion of Hanafi scholars allowing Muslims to engage in invalid contracts in non-Muslim lands as well as other similar fatwas within their school contest this view and confirm that the change in legal rulings according to place is a fundamental provision in our juristic heritage.
2-The Importance of Studying the Fiqh of Minorities
There is a growing interest in exploring the conditions, problems and issues concerning Muslims living in non-Muslim lands. This interest correlates with the growth of a generation that not only comprises migrants to non-Muslim countries but also natural born citizens holding the same right to citizenship as others of a religion different to theirs. Migrants to these countries have emerged as a community; they established community centers that serve them as assembly zones and as their vehicles of expression. Some of these migrants attained senior positions and have a say in decision making, albeit in the shadow of the sovereignty of non-Muslims. This complex reality creates a state of re-interpretation of juristic issues in light of the circumstances surrounding Muslims living in non-Muslim countries. Consequently, the need for this re-evaluation increases, allowing Muslims in non-Muslim countries abide by the provisions of their religion and trust that they are living under the umbrella of Islamic law while simultaneously integrating in the society without alienating themselves. The aim is to avoid a dissonance between the rulings of the shar'ia and the requirements of non-Muslims, a situation which may result in difficulties, hardships or despair and which may also cause a Muslim to abandon his religion altogether.
Dismissing the importance of addressing the needs of this minority reflects the extent of ignorance of their problems. An example is the issue of usury. There is no contention on the prohibition of engaging in usury except for a dire necessity. Dar al-Ifta has issued several fatwas on this matter and not only chose, but favored, the opinion maintaining that some transactions between Muslims and non-Muslims in non-Muslim countries do not involve usury and may be modified to comply with Islamic law. This is one example of many fatwas which must take into account the conditions of the inquirer. Additionally, these matters are not hypothetical but frequently asked questions; they inform about real situations which a Muslim living in a non-Muslim country cannot avoid or adapt to. It is not acceptable to reject any juristic loophole by which a Muslim may continue to abide by the provisions of Islamic law and which helps him avoid any hardships or distress.
It cannot be suggested that the purpose of studying the fiqh of minorities is to track dispensations or weak or anomalous opinions. On the contrary, its purpose is to take into account the objectives of Islamic law, the fiqh of reality, the fiqh of balances, the fiqh of priorities and the fiqh of consequences. In no way does this mean forfeiting the fundamentals of Islam or infringing upon whatever represents the identity of Islam. We have mentioned earlier that the fiqh of minorities operates within the general framework of Islamic law and does not conflict with the fundamentals of Islam or with its identity.
3-The foundations of the Fiqh of Minorities
The pillars of the fiqh of minorities are the fundamentals and criteria upon which this fiqh is established. Many contemporary researchers of this branch of fiqh have called for the necessity of acknowledging fundamentals for this kind of fiqh to meet the circumstances of Muslim minorities in the countries of their residence.
For quite some time, contemporary Islamic fiqh has concerned itself with the position of Muslim minorities living in Europe and addressed it through a legal approach which has resulted in a fiqh comprising a corpus of fatwas and rulings that are increasing from one day to the next. However, this increasing interest in the Islamic presence in Europe, its fruits and resultant fiqh, remains deficient of an essential link of juristic appraisal concerned with directing ijtihad and guiding it towards tackling issues concerning Muslims living in non-Muslim countries, allowing them to follow the provisions of their religion. This missing link is the ta`sil fiqhi or juristic founding (the methodology of relating a certain law to an asl i.e. an original issue that usually exists in the Qur`an or sunna) represented in establishing fundamental juristic principles specific to the fiqh of minorities and which is based on the specificity of the various circumstances and conditions of Muslims living in European countries."
Though we acknowledge the necessity of the availability of principles and criteria that serve as the backdrop for the fiqh of minorities, we do not profess that these principles are separate from the traditional principles of usul al-fiqh or that they conflict with its issues and research topics. Rather, the fiqh of minorities is subsumed under the general structure of Islamic fiqh though its principles are distinguished with depth of study, its approach and the careful classification of juristic issues and authorship on the fiqh of minorities. As mentioned earlier, this branch of fiqh does not operate outside the general framework of Islamic law. Due to the brevity of this introduction, we would like to mention some of these principles and criteria which vary in number according to scholars based on the quality and accuracy of research.
1- Maslaha (benefit or interest)
The linguistic meaning of maslaha is (a) manfa'a (a benefit: both in form and meaning) and (b) a good deed in the sense of it being beneficial.
The technical meaning of maslaha does not depart from its linguistic meaning although the former is more specific. Technically, a maslaha may be defined as the benefit intended by the Wise Lawmaker for His servants that falls within the scope of preserving religion, life, intellect, progeny, and property based upon a prescribed order of precedence. Accordingly, anything that guarantees the preservation of these five exigencies is a maslaha and anything that undermines them is a harm that ruins the maslaha. Based on this, anything that includes obtaining a benefit, warding off or avoiding harm may be termed as a maslaha.
Islamic legal theorists have classified maslaha according to multiple considerations and divided them into several kinds. What concerns us is the legal approach towards its classification and this is divided into:
(i)- Al-Maslaha al-Mu'tabara: it is a type of interest recognized by the shariah, the evidence of which is derived from source texts or ijma' (scholarly consensus). Examples include the prohibition of drinking alcohol to preserve the intellect; the obligation of qasaas (retaliation) in cases involving deliberate murder motivated by ill will and the purpose of which is to preserve lives, and the permissibility of collateral to preserve property which is also an objective recognized by Islamic law. If Islamic law prescribes a certain injunction and shows through evidences the means of arriving at its 'illa (effective cause or ratio legis) which serves as the basis for this ruling and achieves the intended purpose of the Lawmaker, such an interest is considered a malslaha mu'tabara. Consequently, it is valid to extend the ruling to any incident that shares the same 'illa and the legislation of this ruling in such an instance is through its 'illa and not based on maslaha.
(ii)-Al-Maslahah al-Mulghaah: is that interest which is nullified by primary texts or ijma'. Some scholars tend to define it as al-munasib al-gharib. Examples of maslaha mulghaah include the opinion maintaining that a brother and a sister receive equal inheritance shares by virtue of their relationship. This however, is nullified by the Qur`anic verse, "If there are brothers and sisters, (they share), the male having twice the share of the female" [Qur`an 4: 176]. Accordingly, anything that is presumed to comprise a maslaha but is not corroborated by textual evidence or ijma' is a maslaha mulghaah.
(iii)- Al-Maslah al-Maskut 'anha: it is the benefit that Islamic law neither acknowledges nor rejects though it meets the general objectives of Islamic law with respect to gaining a benefit or warding off harm. It is termed al-maslahah al-mursalah or al-munasib al-mursal.
This last category of interests i.e. al-masaleh al-mursalah is a contentious issue among Islamic theorists, some of who maintain its unqualified validity as proof while others reject it altogether.
Regardless of each opinion and their evidences, what concerns us at this point is the difference of legal theorists on the validity of this kind of maslaha as proof i.e. whether al-maslaha al-mursala may be considered independent legal evidence viable for rule derivation and not as a preponderating factor. Based on this, both those who maintain its validity for proof and those who reject it agree on its validity as a preponderating factor in cases of conflict of interests. Scholars have laid down some conditions and criteria for this type of hypothesis include:
-The maslaha must be compatible with the objectives of Islamic law. These objectives comprise al-darruriyat (necessities), al- hajiyyat (complementaries)and al-tahsinat (embellishments). Al-Zingani said, "Al-Shafi'i (may God be pleased with him) maintained that it is permissible to adhere to those interests that are founded on the universal objectives of Islamic law even if they are not founded on specific and particular evidences."
Some legal theorists such as ibn al-Hajib refer to al-maslaha al-mursala that is harmonious with the objectives of Islamic law as mursala mula`ama i.e. a maslaha mursala must generally be compatible with the objectives of Islamic law such that it does not violate any of its principles or evidences; it must be of the same or similar genus as the universal benefits which Islamic law seeks to achieve and must not be extraneous to it, even it lacks accredited evidence.
- The maslaha must not conflict with a nass (text) from the Qur`an or sunna, ijma' or sound qiyas. A nass in terms of the implications of its meanings and ruling is of two kinds: qat'i (definitive) and zanni (speculative). The former refers to a nass that is proven authentically, has only one meaning and admits no other interpretation. It is impermissible for a mujtahid to rely on a maslaha that conflicts with a definitive text. An example of this is the Qur`anic verse, "But Allah has permitted trade and forbidden usury" (Qur`an1: 275). This is a nass of proven authenticity and whose definitive meaning distinguishes between selling and usury in terms of prohibition. No value is attached to any presumed maslaha that is incompatible with this definitive text regardless of its strength or weight.
The second kind is the speculative nass and its various levels. A speculative nass admits more than one meaning. When before a speculative text, a mujtahid must determine all of its possible meanings and then choose the one that is closest and most appropriate to the legitimate maslaha. There is no objection if, in a certain case, the maslaha is inconsistent with one of the textual implications, though it must not violate all of the implications of the speculative nass as this would be tantamount to a maslaha violating a definitive nass. If a maslaha contradicts all of the implications of a speculative nass, it takes the same ruling as that of violating a definitive nass. Based on this, it is impermissible to contradict the meaning of "qur`" that denotes either purity or menstruation by generating a third implication to secure a benefit for a man or woman. In a similar vein, it is impermissible to violate the two meanings of touching mentioned in the verse on touching and sexual intercourse and consequently it is impermissible to posit a third meaning and so forth. It is impermissible to forgo one meaning for another due to an imagined or a weaker and presumed interest."
Ijma' (scholarly consensus): Ijma' is divided according to its strength into qat'i (definitive) and zanni (probable). Examples of ijma' qat'i is the consensus of the Companions transmitted through tawatur (continuous testimony). Ijma' can only be reached on whatever has been categorically established in religion. This kind of ijma' does not change with any maslaha and a definitive ijma' is tantamount to a definitive nass. Examples of ijma' zanni is the tacit ijma' wherein the consensus of scholars over a certain matter is assumed.
An ijma' on a ruling that changes with time, place or conditions that has been founded on a maslahah zarfiyya (circumstantial benefit), the permanence and immutability of which have not been proven, is subject to modification or change pursuant to the maslaha that is encountered. The mere agreement of scholars of a single determined period on the ruling of a certain maslaha does not suffice for its perpetuity. To establish its permanence and immutability, the unanimous agreement of the scholars of a certain period on a certain ruling must be coupled with the ijma' of scholars on its permanence.
Qiyas (ananlogy): It is equating the 'illa of a new case to the 'illa of an original case wherein this 'illa suits the purpose of the ruling i.e. a ruling is combined with an attribute that serves as a suitable basis for a ruling and this is what legal theorists call al-musnasib (suitable). Its levels and statuses differ with its legal accreditation or rejection. Consequently, there are attributes which are either accredited or nullified by the shari'ah and attributes which are neither. In a case where the enactor of law accredits a suitable attribute, its articulation is multifaceted — it is either explicitly or implicitly expressed, or there must be textual evidence accrediting its type or genus as a 'illa for the ruling. The purpose of depicting the divisions of suitable attributes, is to become acquainted with what is accepted and what is not, for applying qiyas, preponderating between analogies and interests when they conflict, and demonstrating the discrepancies between interests from the perspective of the legislator with respect to the legal considerations of its strength or weakness. Based on this, if the maslaha mursala is incompatible with a qiyas based on a 'illa that includes an effective or suitable attribute, then the maslaha is rejected because it conflicts with a sound qiyas; alternatively, it is rejected because it conflicts with a stronger maslaha.
- It is employed in non-devotional matters whose cause of enactment cannot be known by the human intellect. Examples include the number of prayer cycles, the prescribed penalties, the fixed shares of inheritance and so forth. However, istislah (consideration of public interest) may be employed in the general manner of performing some devotional matters—it is not used as proof for devotional matters per se or for the means of their performance which have been immutably fixed by the Lawmaker and which a believer is duty-bound to follow. Examples of maslaha in non-devotional matters include using some modern devices to establish the direction of the qiblah (direction of prayer) and for determining prayer times.
- It must not conflict with a maslahathat is of greater importance or greater strength and preference. Consequently, if two interests conflict, such that one protects a necessary requirement while the other protects a complementary requirement, then the former is preferred over the latter. In the same vein, a maslaha that protects a complementary requirement has a priority over a requirement that is among the embellishments. If two interests are of the same category, then it is necessary to take two things consideration: (i) to measure the degree of the maslaha's comprehensiveness since a public interest prevails upon a private interest, and (ii) to evaluate the results since a certain interest prevails over a probable interest.
2 Tayseer (facilitation)
The principle of tayseer is executed in a general manner in Islamic law and in a specific manner in the field of ifta` (fatwa issuance). It occurs to challenge the notion of rigorousness and compelling the public to follow ihtiyat (religious precaution) and follow the more difficult course in every new issue for which scholars have different designations and consequently different rulings. It was reported that some scholars repudiated tayseer in fatwa and some took this as a pretext to reject the principle. Indeed, there is a great difference between tasahul (latitude and indulgence) and tayseer. Scholars have criticized tasahul and commended tayseer by way of making the law easy for the people and finding legal loopholes for matters that are difficult for them to abide by and which rectify their circumstances.
Imam An-Nawawi said, "It is prohibited to espouse tasahul in fatwa. It is unlawful to solicit a fatwa from a person who is known by this attribute. Tasahul means being too hasty in issuing a fatwa without ascertaining the validity of the verdict and without due consideration and study. However, there is no objection to a mufti's promptitude if he knows the ruling for the issue in question; it was this expeditiousness that scholars of the early generations [of Islam] were reported to have practiced. Other examples of tasahul include a mufti employing unlawful or disliked circumventive stratagems for an invalid purpose, seeking legal dispensations for the advantage of the inquirer by adducing doubtful matters, and giving a difficult ruling for an inquirer he wants to harm. On the other hand, it is commendable for a mufti with sound intentions to employ circumventive stratagems that are free of doubt to release the inquirer from an oath or the like. This explains the practice of the salaf on similar matters. Sufyan said, "Knowledge in our opinion is the rukhsa [license] from a reliable scholar. The rigid, rigoristic practice can be observed by everyone."
Imam an-Nawawi's words reflect clearly the core differences between tasahul and tayseer. Tasahul is not only the product of confusion and deficient research but of falsification and carelessness. Tayseer on the other hand generates from solid knowledge; knowledge of the conditions of the people, their needs and realities; and knowledge of the objectives of legislation and considering it a foundational element in ifta`. Tayseer is a scientific methodology that has been scrutinized and codified with great care by legal scholars and leading jurists.
The purpose of tayseer then is "legislating rulings in a manner that takes into account the needs of the mukallaf [the morally accountable person] and his ability to obey commands and avoid prohibitions while simultaneously conforming to the basic principles of [Islamic] legislation."
The role of the mufti is to expound the legal ruling to whoever inquires about it. A mufti may receive a question on an old and common issue for which there are multiple scholarly opinions or he may be asked about a new issue which early scholars did not come across and which therefore needs the employment of contemporary ijtihad. In both cases, a mufti must tax himself to arrive at the legal ruling for the question presented to him, whether through preponderating between scholarly opinions, examining evidences and the revealed texts, or extrapolating his fatwa based on the rules set down by scholars and the principles of the juristic schools. All the while, a mufti must keep in mind the objectives of Islamic law with respect to the hukm that secures the welfare of the servants of God, rectifies their conditions, and is easy for them to follow. In Islam, moral accountability is associated with facilitation and ease.
Explicit texts manifesting tayseer and eliminating hardship or difficulty abound in the Qur`an and Prophetic traditions. Moreover, the mukalifeen are commanded to espouse tayseer, especially the scholars because it is they who convey God's laws to the people and to who people run to at times of affliction seeking the ruling of God, the Almighty. God the Almighty says,
Allah intends every facility for you; He does not want to put you to difficulties. [Qur`an 1: 185]
In his exegesis of the verse, Al-Khazin said, "God has eliminated hardships in religion. It was said that the person who is most beloved to God is one who has the liberty to choose between two matters and chooses the easier of the two."
God the Almighty says,
Allah doth not wish to place you in a difficulty, but to make you clean, and to complete His favor to you, that ye may be grateful. [Qur`an 5: 6]
Commenting on this verse, Imam al-Razi said, "Know that this verse is a firmly rooted and accredited [principle] in Islamic law. The principle that hardships are not sanctioned is evidenced by the Qur`an and sunna. God the Almighty says,
He … has imposed no difficulties on you in religion [Qur`an 22: 78], Allah intends every facility for you; He does not want to put you to difficulties" [Qur`an 1: 185].
The Prophet said, "There is no harm nor reciprocating harm in Islam". Since repelling harm is rationally commendable, so must it be in Islamic law due to the words of the Prophet , "What Muslims deem to be good, is good in the eyes of God."
Abu Huraira (may God be pleased with him) said, "A Bedouin urinated in the mosque. The people rushed to throw him out but the Prophet , may Allah bless him and grant him peace, told them, 'Let him be. Pour a bucket or pail of water on his urine. You were sent to make things easy and not to make them difficult." Al-Manawi said that the Prophet's words "You were sent" were addressed to the believers who are enjoined to "make things easy." Al-Harali said, "Facilitation does not tax the soul or the body while difficulty taxes both the soul and harms the body. The Prophet emphasized [the importance of] tayseer by negating its opposite which is making things difficult and so he said, "You were not sent to make things difficult." The authorization here is figurative since it was the Prophet who was originally charged [by God] to address the people. But when the people were deputized to convey God's rulings, they were addressed with the same because they are his agents in conveying the rulings of Islam. The Prophet would do the same with every envoy he sent to any place and he would tell them, "Make things easy and do not make them difficult." These were his words when Dhu al-Khuwaida or al-Aqra' urinated in the mosque."
Anas (may God be pleased with him) narrated that the Prophet said, "Make things easy and do not make them difficult, give glad tidings and do not repel people."
Al-Manawi said, "The words "make things easy" mean adopting facilitation by speaking words which incline hearts to accept advice at all times, otherwise, you may impose hardship and repel them. Facilitation in teaching generates obedience, awakens the desire for worship, and facilitates [the acquisition of] knowledge and action. The words "do not make things difficult" mean to refrain from rigorousness. Even though the Prophet's words implied the meaning he wished to convey, the Prophet wished to emphasize his point by adding "do not make things difficult", negating difficulty, in spite of the fact that a command to do something precludes its opposite. This is al-Kirmani's explanation although a better argument was posited by a group of scholars who maintained that the Prophet wished to stress the meaning of perpetuity and convey his purpose of precluding difficulty at all times. If he had restricted his choice to the word 'facilitate', the command would have been only applicable to those who espoused facilitation on single occasions and hardship on many others. This is the argument of the prominent explicators of Prophetic traditions including An-Nawawi and others."
A person who ponders the legal rulings, those concerned with the tenets of faith and the actions of man, will find that they are based on the principle of tayseer and eliminating hardships and this is counted as one of the merits of Islamic law.
Among the manifest applications of tayseer is granting dispensation at a time of affliction'. This is one of the important principles that a mufti and jurist must pay close attention to. Whoever is afflicted with something controversial may follow the opinion of those who permit it to remove himself from committing something prohibited. The purpose of this is to provide facilitation for the people in matters of their religion, lift hardships, and rectify their actions, transactions and interactions as much as possible. It is better for a person who undertakes to do something to follow a juristic opinion that deems a particular action permissible than to have all the gates closed before him. In such an instance, he will find no alternative except to undertake what is unlawful when he initially had the capacity to follow the opinion of those scholars who maintained permissibility.
The principle of granting dispensations at times of affliction was mentioned by scholars including the sheikh of Islam, Al-Bajuri, and the erudite al-Shirwani. In al-Bajuri's meta-commentary on Ibn Qasem's explication Al-Fiqh Al-Shafi'i by Abu Shuja', Ibn Qasem maintained that it is not permissible for a man or woman to use any utensil made of gold or silver without a need. Commenting on this, Al-Bajuri said, "Al-Balqini and al-Dimeri consider this [i.e. using a gold or silver utensil without a need] a major sin. Al-Adhra'i reported the opinion of the majority of scholars who deemed it a minor sin and this is the accredited opinion. Dawud al-Zahiri maintained that using utensils made of gold or silver is makruh tanzihi (a prohibition that is closer to permissibility) and this is likewise the position of Al-Shafi'i in his first school of jurisprudence. It was further mentioned that the prohibition pertains to eating and drinking from utensils made of gold and silver but not to other uses, following the apparent meaning of the Prophetic tradition which says, "Do not drink from gold or silver vessels and do not eat from plates made from the same metals." There is an opinion in the Hanafi school of jurisprudence maintaining the permissibility of using gold or silver coffee saucers, though the established opinion in their school is its prohibition. We can therefore conclude, as mentioned above, that a person who is afflicted with something controversial, as so frequently happens, is to follow the opinion of those scholars who maintain permissibility to remove themselves from the prohibition." The same was mentioned in Sharh Al-Sherwani 'ala al-Tuhfa .
Finally, a mufti must be careful not to give way to latitude when implementing facilitation is a fatwa. He must conduct the necessary research and give due consideration to the question that lead to the correct verdict on the issue before him. When its criteria are observed, the principle of tayseer is considered a legal loophole in many contemporary issues over which there is a scholarly debate with respect to their permissibility or prohibition.
3 Issuing a fatwa based on a weak opinion
Issuing a fatwa based on a weak opinion is tied to the extent of the permissibility of following the weak opinion. If we condone acting upon a weak opinion, then it is permissible to issue a fatwa based on it. For this reason, the following discussion on acting upon a weak opinion likewise applies to issuing a fatwa based on it.
Scholars are unanimous that a mujtahid must follow the opinion, which he believes, is of greater weight. Consequently, he cannot forgo the dominant opinion for another except with justifications which will be mentioned later. Al-Qarafi said, "It is impermissible for a faqih who is a mujtahid to adjudicate or issue a fatwa except on the premise of an opinion which he deems dominant. If he is a muqalid, it is permissible for him to base his fatwas on the mash-hur [established] opinion of his school even if he does not deem it the preponderant opinion. He must follow the dominant position of the imam he follows as he does with the rest of the issues presented to him. Scholars are unanimous on the prohibition of dispensing a fatwa based on a scholar's whims and caprices." Ibn Humam said, "There is a scholarly consensus on the obligation of basing a fatwa on the stronger evidence and dispensing with the weaker." Al-Dusuqi says, "The caliph and judge who are not absolute mujtahids, must base their verdicts on the dominant opinion of the imam of the school of fiqh they are affiliated to or to the opinion of their imams' disciples. They must not follow an opinion of another school or a weak opinion within their own schools and the same applies to a mufti." There are other texts to support this position.
Scholars have founded their opinions concerning the obligation to follow the dominant scholarly opinion upon evidences which include the following:
-When both opinions, the dominant and weak, are probabilistic;
- When one is stronger than the other;
- When it is agreed that it is impermissible to apply the weaker opinion when a stronger one exists;
-When two probabilistic opinions conflict and one is of greater weight than the other, the stronger opinion prevails over the weaker opinion. This is because the proof for the stronger opinion increases the likelihood of its soundness, effectively rendering the other opinion non-existent. Consequently, by convention, the dominant opinion must be followed, making it a legal requirement since what Muslims deem good is good in the eyes of God."
However, scholars permit acting upon the weaker opinion and using it for fatwa when there is a necessity, to gain a presumed benefit, or to ward off harm. This falls under following the opinion of another juristic school in one of the mentioned cases. Books on jurisprudence are replete with subsidiary issues evidencing this. They include the scholarly opinions on praying behind an imam affiliated to a different juristic school than the congregant, even though the imam's prayer may contain secondary characteristics that the congregant does not preponderate. The purpose of this is to avoid strife and unite Muslims.
Shafi'i scholars permit following the Hanafi opinion maintaining the permissibility of using gold or silver coffee saucers for a person who finds himself in such a situation to remove himself from its prohibition.
Ibn 'Abdin cited the permissibility of acting upon the weaker opinion in his poem 'Uqud Rasm al-Mufti. He said that weak opinions are not to be acted upon nor used as bases for responses for fatwas except if the need is severe or by a mujtahid who considers a weak opinion (in his juristic school) strong.
On the issue of ifta`, after mentioning some weak opinions in the Hanafi school, Ibn 'Abdin wrote in the commentary on 'Uqud Rasm al-Mufti, "It is written in Al-Mi'raj 'an Fakhr al-`A`ima that it is commendable if a mufti follows any of these unreliable opinions in his fatwa in exceptional circumstances of necessity, seeking facilitation [for the inquirer]. [End of quote]. Through this citation, it becomes known that a person who is forced by necessity may act upon a weak opinion as it is also permissible for a mufti to base his fatwa on a weak opinion for one forced by necessity as mentioned earlier. What was mentioned on the impermissibility of acting upon a weak opinion or using it as a premise for ifta` is construed in a context other than that of a necessity."
The purpose of facilitation makes it permissible to act upon a weak opinion to remove hardships. However, it is necessary not to use a very weak opinion [odd] i.e. it must be recognized by Islamic law; its issuer must be known lest he may be one who is not to be followed in either knowledge or deeds; it meets the criterion of necessity or a presumed interest; to ward off harm, or avoid tribulation.
Using a weak opinion for ifta` is left to the discretion of the mufti whose fatwa differs for each inquirer, depending on the strength of the mufti's understanding of the inquirer's conditions and circumstances that may require resorting to a weak opinion.
And God, the Almighty knows best and all praise is due to Him first and last.
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An Introduction to the Fiqh of Muslim Minorities
One of the most important fruits of Islamic jurisprudence is affording legal solutions to the problems and mishaps of the times. In its turn, jurisprudence is invariably colored by the various conditions and circumstances of man in any given period.
Among the topics of discussion between jurists and contemporary researchers, is the issue of "the fiqh of minorities". "Minorities" refers to a group of Muslims living in a region whose inhabitants are predominantly non-Muslims.
"The fiqh of minorities" is a new term that was not investigated in the juristic heritage of Muslims but was coined in response to the changing reality of the times. This is confirmed by the fact that the fiqh related to these minority groups is qualitative in nature and takes into account the relation of legal rulings to the conditions of a specific group living in a specific place in light of their specific circumstances where what is suitable for them may not be suitable for others." So the spatial circumstances of these minority groups affords them, in many instances, exigent justifications compelling a mufti to issue a fatwa (legal verdict) that is contrary to the established opinion of his school of jurisprudence, contrary to the opinion he deems dominant due to its evidences, or contrary to the fatwas of other muftis in areas where Muslims are the majority. Consequently, it is possible to say that the subject matter of the fiqh of minorities is the juristic rulings in relation to a Muslim living in a non-Muslim land.
Though this fiqh is specific in terms of its topics and problems, it operates within the framework of Islamic jurisprudence; hence, its reference is the Qur`an and the sunna and the textual evidences derived through the processes of ijma' (scholarly consensus), qiyas (analogy), istihsan (equity), al-masaleh al-mursalah (consideration of public interest), sad al-dhara`i' (blocking the means to evil), 'urf (customs), istihsab (presumption of continuity) and the other evidences that serve as the premises for scholarly opinions. Many of the issues related to these minority groups are analogous to issues mentioned in our juristic inherited literature; contemporary novel issues are considered old in genus, new in class. This evidences the importance of collecting the fatwas and rulings related to Muslim minority groups. This specific type of fatwas catered to the issues and needs of Muslim minorities help Muslim minority groups live under the umbrella of Islamic law and adhere to the rulings of their religion. Simultaneously, they help them integrate in their community without any dissonance between the rulings of their faith and the exigencies of life and in a manner that precludes any distress, hardships or oppression all of which are rejected by the venerable shari'a. God the Almighty says, "Allah doth not wish to place you in a difficulty" [Qur`an 5: 6] and "He …. Imposed no difficulties on you in religion" [Qur`an 22: 78].
Numerous conferences, workshops and research circles have been held to discuss topics related to this type of fiqh. This issue has acquired even particular importance lately in Europe and North America as part of rediscovering Muslim identity amidst the multifaceted challenges which the second and third generation Muslims face.
We shall attempt to give a brief introduction to the fiqh of minorities. It comprises the following:
1- A definition of the fiqh of minorities.
2- The importance of studying the fiqh of minorities.
3- The pillars of the fiqh of minorities.
1-Definition of the Fiqh of Minorities
The linguistic meaning of the word 'minority' is the opposite of 'majority' and means rarity or decrement. This meaning is most prominent in the technical definition of the term; the definitions revolve around the meaning of minority as a group of people, inferior in number and different in certain characteristics, usually color, religion, or culture, from a larger group of which it is an integral part. Dr. Ali Montaser al-Kattani defines 'minority' as, "A group of people living among a numerical majority and sharing a characteristic differing from the larger group and, in consequence, are treated differently from the majority."
Some scholars have defined the term as "a sub-ordinate group whose members share characteristics differing from those of the surrounding society. This group considers itself a community under the domination another majority group that enjoys superior societal privileges and who aim to deprive it of fully participating in the social, economic or political life and limit their role in the majority society."
It is interesting to note that the technical definitions underscore the numerical aspect as the determining factor of minority or majority status. This means that any group that is numerically inferior to another is the minority even if they are the ruling or sovereign group. However, this is not how we gauge the issue of the fiqh of minorities especially since in some places such as certain South African states and Mauritius, Muslims are numerically dominant even though these countries are not identified as Muslim. Numbers as the determinant of the concept of minority status does not suit our intended definition of the fiqh of minorities. Rather, our intended meaning refers to the presence of Muslims in countries where Muslims are neither the majority nor rulers i.e. non-Muslim lands. In this sense, the term minority group refers to "any group living among another sovereign group and differ from it in a certain characteristic." Based on this, the fiqh of minorities may be defined as "the legal rulings relating to Muslims living among a non-Muslim sovereign group." The characteristic feature of this fiqh is its specificity with respect to its topics and distinctive problems, though it is not independent of the general legal framework of Islamic law. Moreover, its legislative bases are the same as those implemented by the various juristic schools. The fiqh of minorities relies on both agreed upon evidences and controversial evidences. Moreover, many of the issues pertaining to the fiqh of minorities are analogous to issues mentioned in our inherited juristic literature though with new and contemporary configurations. Specifying the legal issues related to Muslim minorities to a particular kind of fiqh is a practical application that is subject to either approval or rejection. This kind of fiqh based on ijtihad may be considered fatwa for a particular group and, in this case, is an unequivocal application of the concept of a fatwa changing according to place which is one of the four aspects factoring in the change of fatwa. In this manner, it is removed from the vulnerability of the term and its implications. In other words, it is a contemporary application of the principle that a fatwa changes with time place and prevailing conditions.
Apart from this, in its essence, the fiqh of minorities deals with issues related to minorities from a different perspective because it emanates from a different reality. It may be that the capaciousness of opinions on matters based on ijtihad and the existential reality surrounding Muslims living in non-Muslim countries dictates this approach towards tackling issues from a different view point. As previously mentioned, many researchers have asserted that the fiqh of minorities is a new concept, though some scholars maintain otherwise. The legal opinion of Hanafi scholars allowing Muslims to engage in invalid contracts in non-Muslim lands as well as other similar fatwas within their school contest this view and confirm that the change in legal rulings according to place is a fundamental provision in our juristic heritage.
2-The Importance of Studying the Fiqh of Minorities
There is a growing interest in exploring the conditions, problems and issues concerning Muslims living in non-Muslim lands. This interest correlates with the growth of a generation that not only comprises migrants to non-Muslim countries but also natural born citizens holding the same right to citizenship as others of a religion different to theirs. Migrants to these countries have emerged as a community; they established community centers that serve them as assembly zones and as their vehicles of expression. Some of these migrants attained senior positions and have a say in decision making, albeit in the shadow of the sovereignty of non-Muslims. This complex reality creates a state of re-interpretation of juristic issues in light of the circumstances surrounding Muslims living in non-Muslim countries. Consequently, the need for this re-evaluation increases, allowing Muslims in non-Muslim countries abide by the provisions of their religion and trust that they are living under the umbrella of Islamic law while simultaneously integrating in the society without alienating themselves. The aim is to avoid a dissonance between the rulings of the shar'ia and the requirements of non-Muslims, a situation which may result in difficulties, hardships or despair and which may also cause a Muslim to abandon his religion altogether.
Dismissing the importance of addressing the needs of this minority reflects the extent of ignorance of their problems. An example is the issue of usury. There is no contention on the prohibition of engaging in usury except for a dire necessity. Dar al-Ifta has issued several fatwas on this matter and not only chose, but favored, the opinion maintaining that some transactions between Muslims and non-Muslims in non-Muslim countries do not involve usury and may be modified to comply with Islamic law. This is one example of many fatwas which must take into account the conditions of the inquirer. Additionally, these matters are not hypothetical but frequently asked questions; they inform about real situations which a Muslim living in a non-Muslim country cannot avoid or adapt to. It is not acceptable to reject any juristic loophole by which a Muslim may continue to abide by the provisions of Islamic law and which helps him avoid any hardships or distress.
It cannot be suggested that the purpose of studying the fiqh of minorities is to track dispensations or weak or anomalous opinions. On the contrary, its purpose is to take into account the objectives of Islamic law, the fiqh of reality, the fiqh of balances, the fiqh of priorities and the fiqh of consequences. In no way does this mean forfeiting the fundamentals of Islam or infringing upon whatever represents the identity of Islam. We have mentioned earlier that the fiqh of minorities operates within the general framework of Islamic law and does not conflict with the fundamentals of Islam or with its identity.
3-The foundations of the Fiqh of Minorities
The pillars of the fiqh of minorities are the fundamentals and criteria upon which this fiqh is established. Many contemporary researchers of this branch of fiqh have called for the necessity of acknowledging fundamentals for this kind of fiqh to meet the circumstances of Muslim minorities in the countries of their residence.
For quite some time, contemporary Islamic fiqh has concerned itself with the position of Muslim minorities living in Europe and addressed it through a legal approach which has resulted in a fiqh comprising a corpus of fatwas and rulings that are increasing from one day to the next. However, this increasing interest in the Islamic presence in Europe, its fruits and resultant fiqh, remains deficient of an essential link of juristic appraisal concerned with directing ijtihad and guiding it towards tackling issues concerning Muslims living in non-Muslim countries, allowing them to follow the provisions of their religion. This missing link is the ta`sil fiqhi or juristic founding (the methodology of relating a certain law to an asl i.e. an original issue that usually exists in the Qur`an or sunna) represented in establishing fundamental juristic principles specific to the fiqh of minorities and which is based on the specificity of the various circumstances and conditions of Muslims living in European countries."
Though we acknowledge the necessity of the availability of principles and criteria that serve as the backdrop for the fiqh of minorities, we do not profess that these principles are separate from the traditional principles of usul al-fiqh or that they conflict with its issues and research topics. Rather, the fiqh of minorities is subsumed under the general structure of Islamic fiqh though its principles are distinguished with depth of study, its approach and the careful classification of juristic issues and authorship on the fiqh of minorities. As mentioned earlier, this branch of fiqh does not operate outside the general framework of Islamic law. Due to the brevity of this introduction, we would like to mention some of these principles and criteria which vary in number according to scholars based on the quality and accuracy of research.
1- Maslaha (benefit or interest)
The linguistic meaning of maslaha is (a) manfa'a (a benefit: both in form and meaning) and (b) a good deed in the sense of it being beneficial.
The technical meaning of maslaha does not depart from its linguistic meaning although the former is more specific. Technically, a maslaha may be defined as the benefit intended by the Wise Lawmaker for His servants that falls within the scope of preserving religion, life, intellect, progeny, and property based upon a prescribed order of precedence. Accordingly, anything that guarantees the preservation of these five exigencies is a maslaha and anything that undermines them is a harm that ruins the maslaha. Based on this, anything that includes obtaining a benefit, warding off or avoiding harm may be termed as a maslaha.
Islamic legal theorists have classified maslaha according to multiple considerations and divided them into several kinds. What concerns us is the legal approach towards its classification and this is divided into:
(i)- Al-Maslaha al-Mu'tabara: it is a type of interest recognized by the shariah, the evidence of which is derived from source texts or ijma' (scholarly consensus). Examples include the prohibition of drinking alcohol to preserve the intellect; the obligation of qasaas (retaliation) in cases involving deliberate murder motivated by ill will and the purpose of which is to preserve lives, and the permissibility of collateral to preserve property which is also an objective recognized by Islamic law. If Islamic law prescribes a certain injunction and shows through evidences the means of arriving at its 'illa (effective cause or ratio legis) which serves as the basis for this ruling and achieves the intended purpose of the Lawmaker, such an interest is considered a malslaha mu'tabara. Consequently, it is valid to extend the ruling to any incident that shares the same 'illa and the legislation of this ruling in such an instance is through its 'illa and not based on maslaha.
(ii)-Al-Maslahah al-Mulghaah: is that interest which is nullified by primary texts or ijma'. Some scholars tend to define it as al-munasib al-gharib. Examples of maslaha mulghaah include the opinion maintaining that a brother and a sister receive equal inheritance shares by virtue of their relationship. This however, is nullified by the Qur`anic verse, "If there are brothers and sisters, (they share), the male having twice the share of the female" [Qur`an 4: 176]. Accordingly, anything that is presumed to comprise a maslaha but is not corroborated by textual evidence or ijma' is a maslaha mulghaah.
(iii)- Al-Maslah al-Maskut 'anha: it is the benefit that Islamic law neither acknowledges nor rejects though it meets the general objectives of Islamic law with respect to gaining a benefit or warding off harm. It is termed al-maslahah al-mursalah or al-munasib al-mursal.
This last category of interests i.e. al-masaleh al-mursalah is a contentious issue among Islamic theorists, some of who maintain its unqualified validity as proof while others reject it altogether.
Regardless of each opinion and their evidences, what concerns us at this point is the difference of legal theorists on the validity of this kind of maslaha as proof i.e. whether al-maslaha al-mursala may be considered independent legal evidence viable for rule derivation and not as a preponderating factor. Based on this, both those who maintain its validity for proof and those who reject it agree on its validity as a preponderating factor in cases of conflict of interests. Scholars have laid down some conditions and criteria for this type of hypothesis include:
-The maslaha must be compatible with the objectives of Islamic law. These objectives comprise al-darruriyat (necessities), al- hajiyyat (complementaries)and al-tahsinat (embellishments). Al-Zingani said, "Al-Shafi'i (may God be pleased with him) maintained that it is permissible to adhere to those interests that are founded on the universal objectives of Islamic law even if they are not founded on specific and particular evidences."
Some legal theorists such as ibn al-Hajib refer to al-maslaha al-mursala that is harmonious with the objectives of Islamic law as mursala mula`ama i.e. a maslaha mursala must generally be compatible with the objectives of Islamic law such that it does not violate any of its principles or evidences; it must be of the same or similar genus as the universal benefits which Islamic law seeks to achieve and must not be extraneous to it, even it lacks accredited evidence.
- The maslaha must not conflict with a nass (text) from the Qur`an or sunna, ijma' or sound qiyas. A nass in terms of the implications of its meanings and ruling is of two kinds: qat'i (definitive) and zanni (speculative). The former refers to a nass that is proven authentically, has only one meaning and admits no other interpretation. It is impermissible for a mujtahid to rely on a maslaha that conflicts with a definitive text. An example of this is the Qur`anic verse, "But Allah has permitted trade and forbidden usury" (Qur`an1: 275). This is a nass of proven authenticity and whose definitive meaning distinguishes between selling and usury in terms of prohibition. No value is attached to any presumed maslaha that is incompatible with this definitive text regardless of its strength or weight.
The second kind is the speculative nass and its various levels. A speculative nass admits more than one meaning. When before a speculative text, a mujtahid must determine all of its possible meanings and then choose the one that is closest and most appropriate to the legitimate maslaha. There is no objection if, in a certain case, the maslaha is inconsistent with one of the textual implications, though it must not violate all of the implications of the speculative nass as this would be tantamount to a maslaha violating a definitive nass. If a maslaha contradicts all of the implications of a speculative nass, it takes the same ruling as that of violating a definitive nass. Based on this, it is impermissible to contradict the meaning of "qur`" that denotes either purity or menstruation by generating a third implication to secure a benefit for a man or woman. In a similar vein, it is impermissible to violate the two meanings of touching mentioned in the verse on touching and sexual intercourse and consequently it is impermissible to posit a third meaning and so forth. It is impermissible to forgo one meaning for another due to an imagined or a weaker and presumed interest."
Ijma' (scholarly consensus): Ijma' is divided according to its strength into qat'i (definitive) and zanni (probable). Examples of ijma' qat'i is the consensus of the Companions transmitted through tawatur (continuous testimony). Ijma' can only be reached on whatever has been categorically established in religion. This kind of ijma' does not change with any maslaha and a definitive ijma' is tantamount to a definitive nass. Examples of ijma' zanni is the tacit ijma' wherein the consensus of scholars over a certain matter is assumed.
An ijma' on a ruling that changes with time, place or conditions that has been founded on a maslahah zarfiyya (circumstantial benefit), the permanence and immutability of which have not been proven, is subject to modification or change pursuant to the maslaha that is encountered. The mere agreement of scholars of a single determined period on the ruling of a certain maslaha does not suffice for its perpetuity. To establish its permanence and immutability, the unanimous agreement of the scholars of a certain period on a certain ruling must be coupled with the ijma' of scholars on its permanence.
Qiyas (ananlogy): It is equating the 'illa of a new case to the 'illa of an original case wherein this 'illa suits the purpose of the ruling i.e. a ruling is combined with an attribute that serves as a suitable basis for a ruling and this is what legal theorists call al-musnasib (suitable). Its levels and statuses differ with its legal accreditation or rejection. Consequently, there are attributes which are either accredited or nullified by the shari'ah and attributes which are neither. In a case where the enactor of law accredits a suitable attribute, its articulation is multifaceted — it is either explicitly or implicitly expressed, or there must be textual evidence accrediting its type or genus as a 'illa for the ruling. The purpose of depicting the divisions of suitable attributes, is to become acquainted with what is accepted and what is not, for applying qiyas, preponderating between analogies and interests when they conflict, and demonstrating the discrepancies between interests from the perspective of the legislator with respect to the legal considerations of its strength or weakness. Based on this, if the maslaha mursala is incompatible with a qiyas based on a 'illa that includes an effective or suitable attribute, then the maslaha is rejected because it conflicts with a sound qiyas; alternatively, it is rejected because it conflicts with a stronger maslaha.
- It is employed in non-devotional matters whose cause of enactment cannot be known by the human intellect. Examples include the number of prayer cycles, the prescribed penalties, the fixed shares of inheritance and so forth. However, istislah (consideration of public interest) may be employed in the general manner of performing some devotional matters—it is not used as proof for devotional matters per se or for the means of their performance which have been immutably fixed by the Lawmaker and which a believer is duty-bound to follow. Examples of maslaha in non-devotional matters include using some modern devices to establish the direction of the qiblah (direction of prayer) and for determining prayer times.
- It must not conflict with a maslahathat is of greater importance or greater strength and preference. Consequently, if two interests conflict, such that one protects a necessary requirement while the other protects a complementary requirement, then the former is preferred over the latter. In the same vein, a maslaha that protects a complementary requirement has a priority over a requirement that is among the embellishments. If two interests are of the same category, then it is necessary to take two things consideration: (i) to measure the degree of the maslaha's comprehensiveness since a public interest prevails upon a private interest, and (ii) to evaluate the results since a certain interest prevails over a probable interest.
2 Tayseer (facilitation)
The principle of tayseer is executed in a general manner in Islamic law and in a specific manner in the field of ifta` (fatwa issuance). It occurs to challenge the notion of rigorousness and compelling the public to follow ihtiyat (religious precaution) and follow the more difficult course in every new issue for which scholars have different designations and consequently different rulings. It was reported that some scholars repudiated tayseer in fatwa and some took this as a pretext to reject the principle. Indeed, there is a great difference between tasahul (latitude and indulgence) and tayseer. Scholars have criticized tasahul and commended tayseer by way of making the law easy for the people and finding legal loopholes for matters that are difficult for them to abide by and which rectify their circumstances.
Imam An-Nawawi said, "It is prohibited to espouse tasahul in fatwa. It is unlawful to solicit a fatwa from a person who is known by this attribute. Tasahul means being too hasty in issuing a fatwa without ascertaining the validity of the verdict and without due consideration and study. However, there is no objection to a mufti's promptitude if he knows the ruling for the issue in question; it was this expeditiousness that scholars of the early generations [of Islam] were reported to have practiced. Other examples of tasahul include a mufti employing unlawful or disliked circumventive stratagems for an invalid purpose, seeking legal dispensations for the advantage of the inquirer by adducing doubtful matters, and giving a difficult ruling for an inquirer he wants to harm. On the other hand, it is commendable for a mufti with sound intentions to employ circumventive stratagems that are free of doubt to release the inquirer from an oath or the like. This explains the practice of the salaf on similar matters. Sufyan said, "Knowledge in our opinion is the rukhsa [license] from a reliable scholar. The rigid, rigoristic practice can be observed by everyone."
Imam an-Nawawi's words reflect clearly the core differences between tasahul and tayseer. Tasahul is not only the product of confusion and deficient research but of falsification and carelessness. Tayseer on the other hand generates from solid knowledge; knowledge of the conditions of the people, their needs and realities; and knowledge of the objectives of legislation and considering it a foundational element in ifta`. Tayseer is a scientific methodology that has been scrutinized and codified with great care by legal scholars and leading jurists.
The purpose of tayseer then is "legislating rulings in a manner that takes into account the needs of the mukallaf [the morally accountable person] and his ability to obey commands and avoid prohibitions while simultaneously conforming to the basic principles of [Islamic] legislation."
The role of the mufti is to expound the legal ruling to whoever inquires about it. A mufti may receive a question on an old and common issue for which there are multiple scholarly opinions or he may be asked about a new issue which early scholars did not come across and which therefore needs the employment of contemporary ijtihad. In both cases, a mufti must tax himself to arrive at the legal ruling for the question presented to him, whether through preponderating between scholarly opinions, examining evidences and the revealed texts, or extrapolating his fatwa based on the rules set down by scholars and the principles of the juristic schools. All the while, a mufti must keep in mind the objectives of Islamic law with respect to the hukm that secures the welfare of the servants of God, rectifies their conditions, and is easy for them to follow. In Islam, moral accountability is associated with facilitation and ease.
Explicit texts manifesting tayseer and eliminating hardship or difficulty abound in the Qur`an and Prophetic traditions. Moreover, the mukalifeen are commanded to espouse tayseer, especially the scholars because it is they who convey God's laws to the people and to who people run to at times of affliction seeking the ruling of God, the Almighty. God the Almighty says,
Allah intends every facility for you; He does not want to put you to difficulties. [Qur`an 1: 185]
In his exegesis of the verse, Al-Khazin said, "God has eliminated hardships in religion. It was said that the person who is most beloved to God is one who has the liberty to choose between two matters and chooses the easier of the two."
God the Almighty says,
Allah doth not wish to place you in a difficulty, but to make you clean, and to complete His favor to you, that ye may be grateful. [Qur`an 5: 6]
Commenting on this verse, Imam al-Razi said, "Know that this verse is a firmly rooted and accredited [principle] in Islamic law. The principle that hardships are not sanctioned is evidenced by the Qur`an and sunna. God the Almighty says,
He … has imposed no difficulties on you in religion [Qur`an 22: 78], Allah intends every facility for you; He does not want to put you to difficulties" [Qur`an 1: 185].
The Prophet said, "There is no harm nor reciprocating harm in Islam". Since repelling harm is rationally commendable, so must it be in Islamic law due to the words of the Prophet , "What Muslims deem to be good, is good in the eyes of God."
Abu Huraira (may God be pleased with him) said, "A Bedouin urinated in the mosque. The people rushed to throw him out but the Prophet , may Allah bless him and grant him peace, told them, 'Let him be. Pour a bucket or pail of water on his urine. You were sent to make things easy and not to make them difficult." Al-Manawi said that the Prophet's words "You were sent" were addressed to the believers who are enjoined to "make things easy." Al-Harali said, "Facilitation does not tax the soul or the body while difficulty taxes both the soul and harms the body. The Prophet emphasized [the importance of] tayseer by negating its opposite which is making things difficult and so he said, "You were not sent to make things difficult." The authorization here is figurative since it was the Prophet who was originally charged [by God] to address the people. But when the people were deputized to convey God's rulings, they were addressed with the same because they are his agents in conveying the rulings of Islam. The Prophet would do the same with every envoy he sent to any place and he would tell them, "Make things easy and do not make them difficult." These were his words when Dhu al-Khuwaida or al-Aqra' urinated in the mosque."
Anas (may God be pleased with him) narrated that the Prophet said, "Make things easy and do not make them difficult, give glad tidings and do not repel people."
Al-Manawi said, "The words "make things easy" mean adopting facilitation by speaking words which incline hearts to accept advice at all times, otherwise, you may impose hardship and repel them. Facilitation in teaching generates obedience, awakens the desire for worship, and facilitates [the acquisition of] knowledge and action. The words "do not make things difficult" mean to refrain from rigorousness. Even though the Prophet's words implied the meaning he wished to convey, the Prophet wished to emphasize his point by adding "do not make things difficult", negating difficulty, in spite of the fact that a command to do something precludes its opposite. This is al-Kirmani's explanation although a better argument was posited by a group of scholars who maintained that the Prophet wished to stress the meaning of perpetuity and convey his purpose of precluding difficulty at all times. If he had restricted his choice to the word 'facilitate', the command would have been only applicable to those who espoused facilitation on single occasions and hardship on many others. This is the argument of the prominent explicators of Prophetic traditions including An-Nawawi and others."
A person who ponders the legal rulings, those concerned with the tenets of faith and the actions of man, will find that they are based on the principle of tayseer and eliminating hardships and this is counted as one of the merits of Islamic law.
Among the manifest applications of tayseer is granting dispensation at a time of affliction'. This is one of the important principles that a mufti and jurist must pay close attention to. Whoever is afflicted with something controversial may follow the opinion of those who permit it to remove himself from committing something prohibited. The purpose of this is to provide facilitation for the people in matters of their religion, lift hardships, and rectify their actions, transactions and interactions as much as possible. It is better for a person who undertakes to do something to follow a juristic opinion that deems a particular action permissible than to have all the gates closed before him. In such an instance, he will find no alternative except to undertake what is unlawful when he initially had the capacity to follow the opinion of those scholars who maintained permissibility.
The principle of granting dispensations at times of affliction was mentioned by scholars including the sheikh of Islam, Al-Bajuri, and the erudite al-Shirwani. In al-Bajuri's meta-commentary on Ibn Qasem's explication Al-Fiqh Al-Shafi'i by Abu Shuja', Ibn Qasem maintained that it is not permissible for a man or woman to use any utensil made of gold or silver without a need. Commenting on this, Al-Bajuri said, "Al-Balqini and al-Dimeri consider this [i.e. using a gold or silver utensil without a need] a major sin. Al-Adhra'i reported the opinion of the majority of scholars who deemed it a minor sin and this is the accredited opinion. Dawud al-Zahiri maintained that using utensils made of gold or silver is makruh tanzihi (a prohibition that is closer to permissibility) and this is likewise the position of Al-Shafi'i in his first school of jurisprudence. It was further mentioned that the prohibition pertains to eating and drinking from utensils made of gold and silver but not to other uses, following the apparent meaning of the Prophetic tradition which says, "Do not drink from gold or silver vessels and do not eat from plates made from the same metals." There is an opinion in the Hanafi school of jurisprudence maintaining the permissibility of using gold or silver coffee saucers, though the established opinion in their school is its prohibition. We can therefore conclude, as mentioned above, that a person who is afflicted with something controversial, as so frequently happens, is to follow the opinion of those scholars who maintain permissibility to remove themselves from the prohibition." The same was mentioned in Sharh Al-Sherwani 'ala al-Tuhfa .
Finally, a mufti must be careful not to give way to latitude when implementing facilitation is a fatwa. He must conduct the necessary research and give due consideration to the question that lead to the correct verdict on the issue before him. When its criteria are observed, the principle of tayseer is considered a legal loophole in many contemporary issues over which there is a scholarly debate with respect to their permissibility or prohibition.
3 Issuing a fatwa based on a weak opinion
Issuing a fatwa based on a weak opinion is tied to the extent of the permissibility of following the weak opinion. If we condone acting upon a weak opinion, then it is permissible to issue a fatwa based on it. For this reason, the following discussion on acting upon a weak opinion likewise applies to issuing a fatwa based on it.
Scholars are unanimous that a mujtahid must follow the opinion, which he believes, is of greater weight. Consequently, he cannot forgo the dominant opinion for another except with justifications which will be mentioned later. Al-Qarafi said, "It is impermissible for a faqih who is a mujtahid to adjudicate or issue a fatwa except on the premise of an opinion which he deems dominant. If he is a muqalid, it is permissible for him to base his fatwas on the mash-hur [established] opinion of his school even if he does not deem it the preponderant opinion. He must follow the dominant position of the imam he follows as he does with the rest of the issues presented to him. Scholars are unanimous on the prohibition of dispensing a fatwa based on a scholar's whims and caprices." Ibn Humam said, "There is a scholarly consensus on the obligation of basing a fatwa on the stronger evidence and dispensing with the weaker." Al-Dusuqi says, "The caliph and judge who are not absolute mujtahids, must base their verdicts on the dominant opinion of the imam of the school of fiqh they are affiliated to or to the opinion of their imams' disciples. They must not follow an opinion of another school or a weak opinion within their own schools and the same applies to a mufti." There are other texts to support this position.
Scholars have founded their opinions concerning the obligation to follow the dominant scholarly opinion upon evidences which include the following:
-When both opinions, the dominant and weak, are probabilistic;
- When one is stronger than the other;
- When it is agreed that it is impermissible to apply the weaker opinion when a stronger one exists;
-When two probabilistic opinions conflict and one is of greater weight than the other, the stronger opinion prevails over the weaker opinion. This is because the proof for the stronger opinion increases the likelihood of its soundness, effectively rendering the other opinion non-existent. Consequently, by convention, the dominant opinion must be followed, making it a legal requirement since what Muslims deem good is good in the eyes of God."
However, scholars permit acting upon the weaker opinion and using it for fatwa when there is a necessity, to gain a presumed benefit, or to ward off harm. This falls under following the opinion of another juristic school in one of the mentioned cases. Books on jurisprudence are replete with subsidiary issues evidencing this. They include the scholarly opinions on praying behind an imam affiliated to a different juristic school than the congregant, even though the imam's prayer may contain secondary characteristics that the congregant does not preponderate. The purpose of this is to avoid strife and unite Muslims.
Shafi'i scholars permit following the Hanafi opinion maintaining the permissibility of using gold or silver coffee saucers for a person who finds himself in such a situation to remove himself from its prohibition.
Ibn 'Abdin cited the permissibility of acting upon the weaker opinion in his poem 'Uqud Rasm al-Mufti. He said that weak opinions are not to be acted upon nor used as bases for responses for fatwas except if the need is severe or by a mujtahid who considers a weak opinion (in his juristic school) strong.
On the issue of ifta`, after mentioning some weak opinions in the Hanafi school, Ibn 'Abdin wrote in the commentary on 'Uqud Rasm al-Mufti, "It is written in Al-Mi'raj 'an Fakhr al-`A`ima that it is commendable if a mufti follows any of these unreliable opinions in his fatwa in exceptional circumstances of necessity, seeking facilitation [for the inquirer]. [End of quote]. Through this citation, it becomes known that a person who is forced by necessity may act upon a weak opinion as it is also permissible for a mufti to base his fatwa on a weak opinion for one forced by necessity as mentioned earlier. What was mentioned on the impermissibility of acting upon a weak opinion or using it as a premise for ifta` is construed in a context other than that of a necessity."
The purpose of facilitation makes it permissible to act upon a weak opinion to remove hardships. However, it is necessary not to use a very weak opinion [odd] i.e. it must be recognized by Islamic law; its issuer must be known lest he may be one who is not to be followed in either knowledge or deeds; it meets the criterion of necessity or a presumed interest; to ward off harm, or avoid tribulation.
Using a weak opinion for ifta` is left to the discretion of the mufti whose fatwa differs for each inquirer, depending on the strength of the mufti's understanding of the inquirer's conditions and circumstances that may require resorting to a weak opinion.
And God, the Almighty knows best and all praise is due to Him first and last.
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