Custom is the Basis of Judgement: Legal Maxim 5

Legal Maxim 5

العادة محكمة

Custom is the basis of judgement

The basis for this axiom is derived from the verse: “And those who follow a way other than the path of the believers.”al-Fadani explains that what is meant by path in the verse is the path that the believers approved, and that Allah warned those who follow a different path with punishment. This indicates that it is obligatory to follow the customs of the believers. In short, the custom of the believers is the basis for judgement in the sacred law. Custom is continuously applied in fiqh. Some of the most important issues, such as determining the duration of menstruation and post-natal bleeding, return to custom. Similarly, in issues where one doubts about a small or large amount, the norm is to consider what is customarily considered large or small. 

A number of discussions fall under this legal maxim: 

When is custom established, it can be established through one occurrence alone, such as abnormal uterine bleeding, or it is established by three occurrences, or through repeated occurrences, until it is most likely that a custom is established, such as the case of training an animal to hunt. 

Custom is only considered when it is continuous and uninterrupted. A practical example of this is when a certain type of currency has become the standard currency in transactions, the default is that one must transact with the currency customarily used. The default for limits, measurements, and definitions is custom whenever the Lawgiver mentions such things without stipulating.  

And Allah knows best

Harm Must Be Eliminated: Legal Maxim 4

Legal Maxim 4

 

الضرر يزال

Harm must be eliminated

The basis for this axiom is the hadith: "Harm may neither be inflicted nor reciprocated in Islam." The scholars differ over what is meant by the words inflicted and reciprocated. Some scholars stated that inflicted harm is harm caused by one individual, while reciprocated harm refers to two individuals causing harm to each other. Another view is that inflicted harm entails that the person inflicting the harm is benefiting in some way, and reciprocated harm entails that the person inflicting harm is not benefiting from the harm caused (Kitab al-Qawa'id).

Like the previous legal maxim, this axioms, upon which many rulings are based, enters into numerous sections of fiqh. Furthermore, this legal maxim has various sub-divisions:

1. Necessity makes the unlawful lawful, such as eating unslaughtered dead.
2. Necessity is measured in accordance with its true proportions, such as only eating from unslaughtered dead the amount needed to keep oneself alive.
3. Harm must be eliminated but not by means of another harm, such as when a person eats the food of another to satiate his own hunger.
4. A greater harm is eliminated by means of a lesser harm. This axiom is derived from the incident of the desert Arab who urinated in the mosque, and the Prophet (may Allah bless him and give him peace) ordered the companions to leave the desert Arab as he was in order to eliminated a greater harm. 
5. Prevention of evil takes priority over the attraction of benefit, such as leaving the group prayer or Friday prayer due to illness.

The various levels in this axioms are:

1. Necessity: al-Zarkashi defines this as reaching a point where one would die, or come close to death, if an unlawful thing is not taken advantage of.
2. Need: where one will not perish if an unlawful is not taken advantage of, however, one will fall into hardship. Need in this sense does not permit the unlawful.
3. Benefit: something that one desires.
4. Adornment: a thing of amusement.
5. Surplus: consuming more than one needs or utilizing doubtful things.

Hardship Begets Facility: Legal Maxim 3

Legal Maxim 3

المشقة تجلب التيسير

Hardship begets facility

The meaning of this axiom is that necessity brings about dispensations from Allah Most High, as al-Jarhazi explained in his Mawahib. The basis for this axiom is derived from the verse: “ No hardship has been made for you in the religion," and: “Allah desires ease for you and not hardship." This maxim is also based on the hadith: " I have been sent with an easy, accommodating religion." 

Al-Lahji mentioned that the scholars view all dispensations in the sacred law as a derivation from this legal maxim. The reasons for ease in the sacred law are seven:

1. Travel
2. Illness
3. Coercion
4. Forgetfulness
5. Being ignorant of a ruling
6. Difficulty
7. Decrease

According to Imam al-Suyuti, the criterion for hardship to beget facility is of two types:

1. That which has no effect on easing the ruling, usually found in worship, such as the difficulty of using cold in ablution or the difficulty of fasting in severe heat.
2. That which has an effect, not usually found in worship. This type has various levels:
   
   
    1. A very severe difficulty, such as fearing for one's own life. This is a cause for ease and dispensation.
   2. Minimal difficulty, such as a mild headache. This is not a cause for ease.
   3. An average hardship. A hardship that is closer to a level one hardship necessitates dispensation, while hardships in close proximity to level two do not.  
   
   

Facility of six types:

1. Takhfif isqat: such as Friday prayer when excuses are present.
2. Takhfif tanqis: such as shortening prayers due to travel.
3. Takhfif ibdal: such as dry ablution replacing a regular ablution. 
4. Takhfif taqdim: such as jam' taqdim in travel.
5. Takhfif ta'khir: such as jam' ta'khir in travel.
6. Takhfif tarkhis: This type includes difficult matters that the Lawgiver has made easy, such as using impure medicine.

Dispensations are of various types:

1. Obligatory-- an example of this is eating unslaughtered dead when one believes that death is imminent if one does not consume the unslaughtered meat.
2. Recommended--an example of this is shortening prayers when the journey is three marhala. 
3. That which is better to leave, such a wiping over leather socks. 
4.  That which is disliked to do, such as shortening on a journey less than three marhala.

Certainty is not Overruled by Doubt: Legal Maxim 2

Legal Maxim 2

 اليقين لايزال بالشك

Certainty is not overruled by doubt

al-Lahji mentions that the meaning of this axiom is that the ruling of certainty is not removed by doubt, be it 50/50 or 70/30. According to al-Fadani, certainty refers to a repose in the heart over the reality of a thing Doubt, according to the fuqaha, literally means to waver as al-Nawawi explained in his Daqa'iq when he said that ”Doubt here and in most chapters of fiqh means wavering, be it 50/50 or 70/30.” The legal basis for this maxim is derived from the hadith: ”Whenever one doubts and does not know whether one prayed three or four rak'ats, such person should act on certainty and ignore the doubts." This proof is mentioned by al-Jarhazi in al-Mawahib, al-Lahji, however, provides further evidence in al-Idah.  

Al-Lahji mentions that this axiom enters into every chapter of fiqh, and the masa'il extracted from it consumes more than three-quarters of fiqh. This is because the maxim has various subdivisions, such as:

--The norm is that the status quo remains as it was before. A common example of this principle is the certainty of purity in the face of doubt. When one has conviction of purity but then doubts about having nullified ritual purity, such doubt is ignored. Likewise, if one is certain of ritual impurity but then doubts about having perform ablution, one is still considered to be in a state of impurity. 

--The norm is non-liability (with regards to others rights). An example of this maxim is when a person rents a piece of property and the property is destroyed while in the tenants possession, the norm is that the word of the tenant is considered regarding the amount to the damage. 

Based on this legal maxim,

Whenever a person doubts about the performance of an act, the norm (ar: asl) is that the act is unperformed. An example of this is when one doubts about pronouncing divorce, the asl is that no pronouncement of divorce was made. If one doubts about the amount of something, it being a lesser a greater in number, one considers it to be the lesser amount. An example of this is when one doubts about the number of rak'ats performed. In this instance one bases one's certainty on the lesser amount. Finally, the norm regarding rights is that rights are not due. Such as when someone working on a loan based venture tells the judge that no profit was made, the worker's word is taken over the lender.

The details of this legal maxim are many, and one who wishes to look further should read Idah al-Qawa'id al-Fiqhiyyah or another work in the field.

Acts are Judged by the Intention Behind Them: Legal Maxim 1

In his didacitic poem al-Fara'id al-Bahiyyah, Sayyid Abu Bakr al-Ahdal states: “ Fiqh is built upon five legal maxims, they are: acts are judged by the intention behind them, certainty is not overruled by doubt, hardship begets facility, harm must be eliminated, and custom is the basis of judgment.”

Legal Maxim 1

 

الأموربمقاصدها

Acts are judged by the intention behind them

 In Idah al-Qawa'id al-Fiqhiyyah, al-Lahji explains that the meaning of this axiom is that all matters are connected to the intentions behind them. The basis for this axiom is versified by al-Ahdal: “ This legal maxim is derived from the hadith:  "Acts are only judged in accordance with the intention behind them." Commentators differ over the intended meaning of this hadith. The scholars who consider formulating an intention obligatory hold that the intended meaning of this hadith is that acts are only valid when an intention is made, but those who believe the the intention is not a condition for validity hold that the meaning is that acts are incomplete, or unrewarded, without an intention (Tarh al-Tathrib 7/2). In the literal sense, the word intention means purpose or objective; in the legal usage it refers to strong determination in the heart. This is the definition provided by Ibn al-Salah and al-Nawawi. According to al-Shafi'i, this hadith enters into seventy chapters of fiqh. Imam al-Suyuti enumerates these chapters in his Ashbah wa al-Nada'ir. Sheikh al-Jarhazi confines himself to only a few instances within the discussion of purification: wudhu, ghusl, khuffayn in the issue of wearing khuff-upon-khuff, tayammum and the removal of filth according to one view (al-Fawai'd al-Janiyyah 1/180). 

  The fuqaha approach the intention on seven levels. These levels are versified in the following poem:

The meaning, ruling and time

The method, condition, and good objective.

1. The Intention's Objective

" The objective of the intention is to distinguish worship from habit (al-Jarhazi: and what is done naturally) ” al-Ahdal states.The intention distinguishes acts that may be seen as habitual, natural, and completely unrelated to worship, such as taking a bath to cold down or to clean one's body, from an act that is worship, such as the obligatory or optional purificatory bath. Similarly, the intention distinguishes an act such as sitting in the mosque for rest from an act of worship like spiritual retreat (ar: i'tikaf). In both scenarios, the act of washing and sitting can be construed as something totally unrelated to worship, but the intention has been legislated to distinguish worship from habit, as al-Fadani explains in his commentary. The intention also has a second objective: to distinguish certain acts of worship from other types of worship. An example of this objective is ablution, purificatory bath, prayer, and fasting. All of these acts of worship can be obligatory, such as fulfilling a vow, or wholly supererogatory. In light of this, the intention has also been prescribe in order to differentiate obligatory acts of worship from recommended acts. The authors of qawa'id al-fiqhiyyah spent a great deal explaining this issue in their scholarly-writings. The following discussion takes place in al-Mawahib al-Saniyyah and Idah al-Qawa'id al-Fiqhiyyah. 

Here is a summary from both works: 

The intention is not a conditions in acts of worship that do not resemble habit, such as faith, fear, hope, Qur'an recitation, and remembrance. Each of these acts are distinguished from habit by their outward and inward form. Similar to this is the act of abandoning sin, such as avoiding adultery or the consumption of wine, or the removal of impurity. However, some scholars maintain that an intention is necessary for the removal of filth since it wavers between performance and abandonment; therefore, it is recommended to make an intention thereby avoiding differences of opinion. al-Lahji and others maintain that one must formulate an intention when abandoning sin in order to earn a reward. 

It is necessary to specify in the intention of any act that is ambiguous, such as the obligatory prayer. The ruling is based on the words of the hadith:“ and a person will have only what he intended." Since duhr and 'asr possess similarities, the only distinguishing factor is specification when formulation the intention. Furthermore, it is necessary to specify in certain optional prayers, such as the rawatib before and after the obligatory prayers. It is not necessary to specify in unambiguous acts such as tahiyyat al-masjid, salat al-awwabin, and the like. Regarding the 'eid prayers, 'Izz al-Din bin 'Abd al-Salam felt that it is not necessary to specify when making the intention, however, this is not the relied-upon view. Sheikh Ibn Hajar relied upon the view that salat al-tasbih does not require specification, but this is not the preponderant view.
The general rule is that every circumstance that requires one to intend the obligatory also requires one to specify, except for dry ablution. 

There are certain optional additions that one may add to one's intention, such as specifying the place or time of prayer. Whenever one makes a mistake, such as a slip of the tongue, when intending an optional addition, it is of no consequence to the intention's validity. An example of this is to specify whether the prayer is a current performance or a make-up. If one makes a mistake in this annexation, one's intention is sound. Any act that requires a worshiper to specify, like the obligatory prayers, mistakes in such specification invalidate the intention, such as intending 'asr while formulating the intention for duhr prayer. This is based on the general rule that states that whenever a mistake is made in any of the key-elements of the intention, the intention is invalid, and whenever a mistake is made in an optional addition, no harm is caused to the intention. Based on this rule, if a person with ritual impurity brought about through sleep intends to lift impurity from a nullifying act that did not occur, such as touching the private parts, the intention remains valid. In certain acts, it is necessary to bring to mind the obligatory nature of the act, this includes the purificatory bath, prayer, and zakat; it is not obligatory to bring this to mind in ablution, fasting, or hajj and 'umrah.

 Including multiple intention in one single intention (ar: tashrik)

Tashrik has various rulings:

In an act of worship, it is invalid to include intentions unrelated to worship. When performing the 'eid slaughter, it is not valid to include intentions which are not associated to worship, like intending to slaughter for the sake of Allah and for the sake of an idol, annexing the word idol immediately nullifies the intention. At times, tashrik of this type will not render the intention invalid, such as intending the ablution and cooling one's body.

If one intends to perform an optional act along side an obligatory act there are different rulings. At times it is valid and both acts are accomplished, such as praying the obligatory prayer with the intention of the obligatory prayer and greeting the mosque. Other times it is invalid and only the obligatory act is achieved, such as intending a supererogatory hajj with the intention of the obligatory hajj, or the reverse, such as giving five dirhams as zakat with the intention of zakat and optional charity. In this instance, optional charity is given consideration; not zakat. Finally, tashrik can invalidate the act altogether, like when
a later comer makes the opening takbir while the imam bowing and intends both takbirat al-ihram and going into ruku. 

When one intends an obligatory act within another obligatory act, it is invalid, according to al-Subki, except in hajj and 'umrah. However, al-Suyuti held that ablution and the purificatory bath is another scenario in which tashrik of this type is valid. If one intends a supererogatory act along with another supererogatory act, both are achieved, such as when one intends the fast of 'arafah and the fast of Monday. 

2-4. The Intention's Meaning, Ruling, and Locus

The intention has been defined in different ways, as noted above, Imam al-Nawawi defined the intention as a firm determination in the heart, but al-Mawardi offered a different interpretation. According to Imam al-Mawardi, the intention means that one's determination coincides with the performance of the intended act. In most instances, the intention is an obligatory condition or integral. The locus of the intention is the heart, and it is insufficient to utter the intention when the intention is absent in the heart. The intention in the heart is given absolute consideration. This means that if a person utters the intention to pray 'asr but the intention in the heart is duhr, then duhr prayer is considered. In most cases, it is not obligatory to to utter the intention. For example, if a person wants to give a portion of land for a mosque as an endowment, the land is an endowment solely through the intention of the one giving the land. However, there are some instances that necessitate the utterance of the intention, such as divorce or swearing an oath. 

 5. The Intention's Time 

al-Lahji and others mention that the intention coincides with beginning of an act. In ablution, the intention must coincide with washing the face, and in prayer with the hamza of the opening takbir. There are some instances where the intention does not have to coincide with the beginning of an act, such as fasting, zakat, or joining prayers during travel. The general rule here is that every act that one voluntarily enters into requires that the intention be made at the beginning of the act, as al-Jarhazi explained. 

6-7. The Intention's Formula and Conditions

The process of formulating an intention differs according to the various acts of worship. In ablution, for example, one intends to remove something that made prayer and the like unlawful.

al-Ahdal and others maintain that the intention has the following conditions: 

1. Discernment 
2. Islam
3. Knowing what one is intending 
4. Nothing exists which negates the intention, such as apostasy    

al-Lahji mentions five exceptions to the second condition:

1. A disbeliever who purifies from her menses so that her Muslim husband can have intercourse with her.
2. Expiations
3. Zakat. An example of this is when an apostate distributes zakat wealth while in a state of apostasy.
4. When a disbeliever intends a journey that allow the shortening of prayers and he accepts Islam along the way.
5. When a disbeliever enters Islam at dawn. Although the obligatory fast is not valid, an optional fast is sound and valid for such person.  

Expounding on the Ahdal's fourth condition, al-Lahji adds that at times the intention to cease performing an act has no consequences, while in some circumstances such intention affects the validity. The acts that are affected include:

 

a) when one intends to end one's faith (may Allah save us), one immediately becomes an apostate.

b) when one intends to end one's prayer, one's prayer is invalidated.

c) when one intends to end one's recitation of al-fatiha.

d) when a traveler intends to pray a full prayer, shortening becomes prohibited

The acts that are not affected by this intention:

a) when one intends to end one's purification during ablution or the purificatory bath, however, it is necessary to renew the intention for the remainder of purification.

b) when one intends to end one's fast or i'tikaf.

c) when one intends to eat while fasting.

The discussion under this axiom is lengthy, for more details refer to al-Suyuti's Ashbah wa al-Nada'ir.

The Five Normative Legal Maxims

     al-Qadi Husayn mentioned that the Shafi'i school revolves around four main legal maxims:

1. al-Yaqin la yuzalu bish-shakk: certainty is not overruled by doubt. The basis of this axiom is the words of the Prophet (may Allah bless him and give him peace): " Verily, the devil comes while you are in prayer and says to you, "you nullified your ritual purity, you nullified your ritual purity." Such a person should continue praying unless a sound is heard or a smell is found (indicating that one's ritual purity is nullified)."
2. al-Mashaqqat tujlab al-taysir: hardship begets facility. The basis of this axiom is in the words of Allah: " And no hardship has been placed upon you in the religion," and the statement of the Prophet (may Allah bless him and give him peace): " I have been sent with an easy, accommodating religion." 
3. al-Darar muzal: harm must be eliminated. The basis for this maxim is the hadith of the Prophet (may Allah bless him and give him peace): "Harm may neither be inflicted nor reciprocated in Islam."
4. Tahkim al-'Adat wa al-ruju' ilayha: custom is the basis of judgement. This axiom is derived from the verse of Surat al-Nur: " O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times...," and the statement the Prophet (may Allah bless him and give) made to Hamnah bint Jahsh: " Observe your menses for six or seven days, Allah alone knows which it should be, just as other women, and purify just as other women purify at the time of their menstruation and purification."  

     Some other great scholars added a fifth legal maxim: al-Umur bi-maqasidiha: acts are judged by the intention behind them. This axiom is based on the hadith: " Acts are valued in accordance with their underlying intention." This is a fine addition to the existing four normative legal maxims, for al-Shafi'i said: " This hadith constitutes a third of all knowledge."

     Finally, Sultan al-'Ulama, 'Izz al-din bin 'Abd al-Salam, held that all matters of fiqh return to one single legal maxim: the attraction of benefit and the prevention of evil; however, other scholars felt that all matters of fiqh return to the acquisition of benefit alone ( al-Fawa'id al-Janiyyah 1/139-43).

Works Cited

al-Fadani, Muhammad Yasin. al-Fawa'id al-Janiyyah Hashiyat al-Mawahib al-Saniyyah. Lebanon; Dar--       

     al-Basha'ir al-Islamiyyah, 1996. Print.

al-Hisni, Taqi al-Din. Kitab al-Qawa'id. Riyadh, Saudi Arabia; Maktabat al-Rushd, 1997. Print.

     

An Introduction to Qawa'id al-Fiqhiyyah

     Sheikh Sa'id al-Lahji begins his work Idhah al-Qawa'id al-Fiqhiyyah with the famous verses of al-Sabban that contain the ten fundamentals which every student must know before delving into a particular subject:

Indeed the fundamentals of every science are ten:

The definition, the subject, and the fruits,

Its merit, relationship and founder,

The name, basis, and ruling of the lawgiver,

And the legal cases. Though some is sufficient

The one who obtains it all gains nobility.

     Qawa'id al-Fiqhiyyah deals with the principles through which the rulings of new occurrences are identified in the absence of a clear statement in the Qur'an, Sunnah, or ijma'. The subject matter of the science is the methodology of deducing fiqh rulings from the established legal maxims. The issues that one studies in the field constitutes the examination of the conditions and states of furu', and determining the compatibility of the principles with the furu'. 

     Qawa'id al-Fiqhiyyah allows one to know the ruling of new occurrences when there is no clear nass from the lawgiver, and it allows one to understand a large amount of furu' in a relatively short period of time. Being a branch of fiqh, the study of legal maxims naturally shares the merit that fiqh enjoys: the best field after theology. 
 

     The field, sometimes referred to as 'ilm al-qawa'id al-fiqhiyyah or ashbah wa al-nada'ir, was founded by the masters of furu', such as Abu Tahir and Qadi Husayn, who developed the field of study and transmitted the science to others. Later, Sultan al-'Ulama 'Izz Abd al-Salam came an authored an extensive work in the field. 
 

     The science is rooted in the Qur'an, Sunnah, and statements of the companions and mujtahid imams. It is communally obligatory to learn the science of qawa'id al-fiqhiyyah, and personally obligatory whenever a qadi appoints one to learn the science (6-7).

The Life and Works of Ibn al-Sam'ani

Ibn al-Sam’ani’s full name is: Mansur bin Muhammad bin ‘Abd al-Jabbar bin Ahmad bin Muhammad bin Ja’far bin Ahmad bin ‘Abd al-Jabbar bin al-Fadhl bin al-Rabi’ bin Muslim bin ‘Abd Allah al-Sam’ani al-Marwazi. The name al-Sam’ani is an ascription to Sam’an, a village of Banu Tamim. Al-Marwazi alludes to the town of Merv where the imam’s family settled, possibly during the earliest period of expansion into Khurasan, and it was the city in which Ibn al-Sam’ani was born and raised.

Ibn al-Sam’ani was born in the month of Dhul-Hijjah in the year 426 AH. He was raised in a household of knowledge and asceticism. The first among his family to gain notoriety was Muhammad bin ‘Abd Jabbar Abu Mansur (d.450 AH), the Imam’s father. Ibn al-Sam’ani's father was a great scholar of the Hanafi school and the author of many distinguished works, and he was amongst the foremost personalities in the town of Merv. Abu As’ad described him as a man of great piety and virtue who commanded mastery over the Islamic sciences and Arabic language. When Ibn al-Sam’ani reached the age of seven, his father took it upon himself to train his son in various fields of Islamic studies, including Hanafi fiqh and usul al-fiqh. While still in his youth, Ibn al-Sam’ani went on to study with scholars in his hometown, among them, the great muhaddith and musnid of Khurasan, Abu Ghanim al-Kara’i. al-Sam’ani also took knowledge from Abu Bakr Muhammad bin ‘Abd Samad al-Tarabi. The Imam expended all efforts in attaining knowledge, and eventually became one of the leading scholars of Hanafi fiqh in Khurasan. Although Ibn al-Sam’ani benefited greatly from the scholars of his locality, he did not confine his studies to his hometown. He traveled extensively to other towns in order to acquire knowledge and hear hadith and attain high asanid. He traveled to Nishapur, Jurjan, Hamdhan, and Qazwin. Apart from this achievement, the imam was bestowed with superb intelligence and an impeccable memory. Ibn al-Sam’ani once remarked, “I never forgot anything that I committed to memory.”

Around the year 461, Ibn al-Sam’ani decided to make the hajj-journey and along the way he hoped to benefit from scholars in the towns that he passed through during his trip. Every town that al-Sam’ani passed through, he would stop in order to meet the city’s scholars and hear hadith from them. His traveling companion, al-Hasan bin Ahmad al-Marwazi noted: “I accompanied Sheikh Abu al-Mudhaffar on hajj, and whenever we would enter a new city, the imam would request to hear hadith from different scholars. On the way, al-Sam’ani passed through Baghdad and met its scholars and debated with some of the jurists of Baghdad. Of those jurists that al-Sam’ani debated in Baghdad was the great Shafi’i jurist of his era, Sheikh Abu Nasr bin al-Sabbagh (d. 477). He also met Imam Abu Ishaq al-Shirazi and heard hadith from Ahmad bin Muhammad bin al-Naqur, Abu al-Ghana’im al-Hashimi, and others. After spending time in Baghdad and taking knowledge from the city’s luminaries, the imam and his convoy headed for the Hijaz. In order to shorten the length of their trip, the convoy decided to take a road that was not commonly used by travelers. Along the way, a group of locals stopped the convoy and took them all as prisoners. Al-Sam’ani recalls of the incident: “we were held captive and I was in charge of tending to the camels. The leader of their group decided that he wanted to wed his daughter off, and he wanted to travel to a city in order to contract the marriage. One of our traveling companions informed the leader that the person who he appointed to tend to the camels is the jurist of Khurasan. And so the leader and his group asked me some question and I responded, and I spoke to them in Arabic. The group became embarrassed and apologized for what they had done. I contracted the marriage and offered the short customary sermon. The group was very pleased by this and asked me if I would accept some gift or service from them, in return for what I had done, but I refused. In the middle of that year, the band of Arabs escorted my convoy to Makkah.”

When Ibn al-Sam’ani reached Makkah he stayed with Sheikh Ahmad bin Asad al-Kuwji, and entered into the company Imam S’ad bin ‘Ali al-Zinjani al-Shafi’i (d.471). Al-Sam’ani was greatly influenced by al-Zinjani’s character and knowledge. It was before al-Zinjani that the imam decided to leave the Hanafi school, and become a follower of the Shafi’i school. For Ibn al-Sam’ani, this marked the beginning of a personal and intellectual transformation.

During Ibn al-Sam’ani’s stay in Makkah he continually sought knowledge and kept the company of scholars, but it was the scholars of hadith that al-Sam’ani accompanied most. He heard hadith from the Mufti of Makkah Hayyaj bin ‘Ubayd al-Huttayni, Abu ‘Ali al-Shafi’I, Karimah bint Ahmad al-Marwaziyyah. He decided that he wanted to remain in the company of his dear teacher al-Zinjani and take up residence in Makkah. Until one night, al-Sam’ani saw his father in a dream who requested him to return to Merv. Al-Sam’ani related this dream to his teacher and asked him for his counsel on the matter. After discussing the issue, he decided to return home. This journey had a tremendous impact on Ibn al-Sam’ani. During this period the Imam went from being a muqallid to exercising his own ijtihad. 

Ibn al-Sam’ani reached his hometown in the 468, and shortly after his return word spread of his move to the Shafi’i school, and the he left the path which he ardently defended for thirty years. The common people of the city became infuriated by this and turmoil began to ensue between the two schools. It reached a point that the governor ordered Ibn al-Sam’ani to leave Merv. Imam Ibn al-Sam’ani first took up residence in al-Tus and then in Nishapur. He remained in Nishapur for a while. He spent most of his time therein teaching and holding revision gatherings. After a while, Ibn al-Sam’ani returned to Merv. In Merv his repute eventually grew and he gathered a large circle of companions and students. The Imam remained in Merv until his death on the 23rd of Rabi’al-Awwal in the year 489. The Imam was 63 when he passed away and is buried in Sanjadhan, one of the burial places of Merv. 


The scholars of his era, and those who came after, had great admiration and respect for Ibn al-Sam’ani. Some the greatest scholars of Islam had these words to say:

“If fiqh was a folded garment, Abu al-Mudhaffar would have been its fashioner” (Imam Haramayn al-Juwayni).

“Abu al-Mudhaffar al-Sam’ani was the Shafi’i of his time” (Abu al-Qasim bin Imam al-Haramayn).

“When I look at Abu al-Mudhaffar it feels as though I am a looking at one of the tabi’in” (‘Ali bin al-Qasim al-Saffar).

“He sided with people of hadith and sunnah, was a thorn in the eye of his opposition, and was a hujjah for the people of the Sunnah” (al-Dhahabi).

Ibn al-Sam’ani left behind a number of works in different fields. He authored works in ‘Aqidah, Tafsir, Hadith, Fiqh, and Usul al-Fiqh. Every single work that he authored was written after the Imam became a Shafi’i in Makkah. Unfortunately, not every work authored by the great imam survived, but the works that circulate between scholars and students of knowledge today are extremely beneficial and extensive in their coverage. 

The works of Ibn al-Sam’ani include:

In ‘Aqidah

Al-Rad ‘ala al-Qadariyyah: reaching twenty volumes, this is one of the imam’s oldest works. He wrote it shortly after departing from the Hanafi school. This book is considered to be lost.

Minhaj Ahl al-Sunnah: this work covers two main topics: the intricate words in the Qur’an, and the ruling of takfir.

Al-Intisar li-Ashab al-Hadith: a brief work covering three topics: the importance of adhering to the sunnah, the virtue of hadith, and knowledge. Like Minhaj Ahl al-Sunnah, al-Intisar is lost; however, large portions of the work have been reproduced in Suyuti’s work Sawn al-Mantiq wa al-Kalam.

Usul al-Fiqh

Qawati’ al-Adillah fi Usul al-Fiqh: this book is one of the only existing works of Ibn al-Sam’ani, and it is perhaps the work for which he is most well-known. Qawati’ al-Adillah has been published numerous times by various publishing houses. One of the best prints was completed by Maktabah al-Tawbah with ‘Abd Allah Hafidh Ahmad al-Hakami’s extensive notes.

The author also wrote works in fiqh, mainly dealing with ‘ilm al-khilaf, hadith, and tafsir, most of which are lost.

References: ‘Abd Allah Hafidh al-Hakami’s Introduction to Qawati’ al-Adillah. Riyadh, Saudi Arabia: Maktabat al-Tawba, 1997. Print.

The Meaning of the Imperative Mood in Usul al-Fiqh

      When a command is mentioned without evidence signifying its intent, the imperative mood can carry fifteen possible meanings. The command can:

1. الوجوب-Make something an obligation: “Establish prayer”(Surat al-Baqarah 43).

2. الندب-Recommend something to be done: “And those who seek a written contract [of emancipation], from among those whom your right hand owns, of male slaves and female slaves, contract with them accordingly, if you know in them any good” (Surat al- Nur 33).

.”

3. الارشاد-Advise and guide towards an act: “And summon to bear witness two men from among you” (Surat al-Baqarah 282). The meaning here being similar to a recommendation, in that both seek the attainment of welfare, except that al-nadb is for an interest in the hereafter, and al-irshad is for a worldly benefit.

4. الاباحة-Indicate the permissibility of something: “And go out to hunt”(Surat al-Ma’idah 2).

5. التأديب-Refine and discipline: “Eat from what is in front of you” (Bukhari).

6. الامتنان والاكرام-Bestow blessings and honor : “Eat from what Allah has provided for you” (Surat al-Ma’idah 88), and “Enter paradise in peace” (Surat al-Hajar 46).

7. التهديد-Threaten: “Do as you wish” (Surat al-Fussilat 40).

8. الانذار-warn: “ ‘Enjoy!, this world of yours for a short time. For lo! your journey’s end, your return, shall be to the Fire!’”(Surat Ibrahim 30). Close to a threat in meaning, a warning differs in two aspects:

a. A warning must coincide with a punishment; a threat can either be mentioned with a punishment or not.

b. The act that one has been threatened about must outwardly appear to be unlawful or invalid. An act that one has been warned about can appear to be unlawful or invalid or it may not appear to be so (al-Bahr al-Muhit 2/358-359).

9. التسخير-Ridicule and subjugate: “ ‘Be apes, despised!’” (Surat al-Baqarah 65).

10. التعجيز-Make something impossible: “ ‘Be stones or iron” (Surat al-Isra’ 50).

11. الاهانة-Humiliate: “ ‘Taste!, that is, [taste] the chastisement. Indeed you are the mighty, the noble one”(Surat al-Dukhan 49).

12. التسوية-Make two things equal: “ Endure, it, or do not endure, your endurance and your anguish, will be the same”(Surat al-Tur 16).

13. الدعاء-Supplication: “Forgive me.”

14. التمني-Voice a desire or wish: “O long night, disappear.”

15. كمال القدرة-Show absolute power and ability: “ Be, and it is” (Surat Yasin 82).

      Some author, such as al-Subki in Jam’ al-Jawami, list twenty six possible meanings of the imperative mood. While al-Zarkashi lists some thirty-odd possible meanings in al-Bahr al-Muhit.

     The soundest-view, according to al-Amidi is that the command only has a literal implication when the meaning is a clear demand or request. In all other cases, the command is entirely metaphorical (al-Ihkam 2/176).

Imam al-Muzani's Independent Views

Imam al-Muzani's Independent Views

 Imam Ibrahim al-Muzani, The Defender of the Shafi’i School

Isma’il bin Yahya bin Isma’il bin ‘Amr bin Ishaq, more famously known as Ibrahim al-Muzani, was born in 174 AH. Imam al-Muzani studied under Imam al-Shafi’i, Nu’am bin Hammad, and others. His students include: Ibn Khuzaymah, al-Tahawi, Zakariyya al-Saji, Ibn Jawsa, Ibn Abi Hatim, and many others. Imam al-Muzani was a mountain of knowledge and a great debater, so much so that his teacher al-Shafi’i once remarked, “If al-Muzani debated with the devil, he would certainly win.” The great imam was extremely scrupulous and refrained from worldly-pleasures; only sufficing himself with what was necessary. If al-Muzani missed a group prayer, he would repeat the prayer twenty five times. Al-Muzani would wash the dead purely for the sake of Allah, and he would say, “I wash the dead so that my heart may become pure.” Imam Abu Ishaq al-Shirazi described al-Muzani as being someone who renounced the world and was great scholar and mujtahid. The Imam possessed debating skills and was immersed in the subtle meanings of things. Al-Muzani authored many works, among them: al-Jami’ al-Kabir, al-Jami’ al-Saghir, al-Mukhtasar, al-Manthur, al-Masa’il al-Mu’tabarah, al-Targhib fi al-’Ilm, Kitab al-Watha’iq, Kitab al-’Aqarib, and the work Nihayat al-Ikhtisar. Al-Shafi’i referred to him as the Defender of the Shafi’i School. Whenever al-Muzani would finish writing  a legal issue in his Mukhtasar he would pray two rak’ats. ‘Amr bin ‘Uthman al-Makki once praised him by saying, “out of all of the devout worshippers that I have seen, I have never seen one more skilled in ijtihad than al-Muzani, nor have I seen anyone who continually worships more than al-Muzani, nor have I seen anyone who honors knowledge and the people of knowledge more than him. In matters of piety, he was extremely hard on himself and lenient on others. Al-Muzani exclaimed that he was molded by the noble character of Imam al-Shafi’i. Abu ‘Asim mentioned that al-Muzani would not perform ablution from the streets of Ibn Tulun, nor would he drink from its clay jugs. The reason why he refrained was because manure was used to make the jugs, and fire, used to bake the clay, could not purify the filth. Scholars from all over the Muslim world came to benefit from Imam al-Muzani, including scholars from Khurasan, Iraq, and Sham. After a lifetime of service to Islam and the school of his beloved teacher, al-Shafi’i, al-Muzani passed on to his Lord in the month of Ramadhan in the year 264 AH (Tabaqat al-Shafi’iyyah al-Kubra 2/93).


Independent Views of Imam al-Muzani

1. Doubting about the purity of water or a garment

The Madhhab:

If one has two containers of water, one containing pure water and the other containing impure water, and one has doubts about which one is pure, there are three views: the soundest-view is that is impermissible to use either vessel until one attempts to determine which vessel is pure and finds evidence that indicates that the water in the vessel is most- likely pure (Rawdhat al-Talibin 1/35). In this case, garments have the same ruling as water with regards to ascertaining the purity of an object when in doubt (al-Najm al-Wahhaj 1/248)

Imam al-Muzani’s View:

If one has doubts about two vessels of water, one containing pure water and the other containing impure water, one should not attempt to determine which water is pure, rather, one should perform the dry ablution and pray. One does not have to repeat the prayer later. Similarly, when one doubts about a pure garment and an impure garment, one should pray one prayer in each garment, without attempting to determine which garment is pure. This was also the view of Imam Abu Thawr (ibid, al-Bayan 1/56).

2. Cleaning After Relieving Oneself

The Madhhab:

It is obligatory to clean one’s private parts after relieving oneself (Rawdhat al-Talibin 1/65).

Imam al-Muzani’s View

It is not obligatory to clean after relieving oneself, just as it is not obligatory to remove the traces remaining after cleaning oneself with stones (al-Najm al-Wahhaj 1/300).

3. Wiping the head in ablution

The Madhhab:

It is obligatory to wipe a portion of the head or a portion of hair, even as single strand, provided that the wiping takes place within the limits of the head. However, it is recommended to wipe the entire head (Mughni al-Muhtaj 1/93, Rawdhat al-Talibin 1/60).

Imam al-Muzani’s View

It is obligatory to wipe the entire head in ablution. This is also the view of Imam Malik and Imam Ahmad. Al-Muzani narrates this opinion from al-Shafi’i in his work al-Manthur (al-Najm al-Wahhaj 1/329).

4. Rubbing the limbs in ablution and the purificatory bath

The Madhhab:

It is recommended to rub one’s limb after washing it with water as a precautionary measure, to ensure complete purity, and to avoid differences of opinion among those who consider rubbing the limb mandatory (al-Ghurar al-Bahiyyah 1/296).

Imam al-Muzani’s View:

It is obligatory to rub the limbs in ablution and the purificatory bath. This is also the opinion of Imam Malik (al-Najm al-Wahhaj 1/392).

5. Permeating a Thick Beard

The Madhhab

Permeating a thick beard is among the recommended acts of ablution.

Imam al-Muzani’s View:

It is obligatory to permeate a thick beard (al-Najm al-Wahhaj 1/351).

6. Performing Ablution in Order

The Madhhab:

Performing Ablution is an integral of ablution.

Imam al-Muzani’s View

It is not obligatory to perform the integrals of ablution in order. This is also the preferred-view of Ibn Mundhir, Sheikh Nasr al-Din al-Maqdisi, and al-Bandiji. Al-Baghawi relates that the majority of scholars also held this opinion (ibid 1/333).

7. Does Tayammum lift ritual impurity?

The Madhhab:

Tayammum does not lift ritual impurity

Imam al-Muzani’s View

Tayammum lifts ritual impurity (al-Najm al-Wahhaj 1/463).

8. Praying more than one obligatory prayer with a single dry ablution

The Madhhab:

One may not pray more than a one obligatory prayer with a single dry ablution.

Imam al-Muzani’s View

One can pray as many obligatory and supererogatory prayers as one wishes with a single dry ablution. The reason being that dry ablution lifts ritual impurity, therefore, one may pray as many prayers as one likes. This is also the view of Ibn al-Mundhir and a position that al-Ruwyani preferred (ibid 1/474).

9. Performing dry ablution before the prayer’s time

The Madhhab:

One can only make dry ablution after the prayer’s time has entered.

Imam al-Muzani’s View

One can perform dry ablution before the prayer's time. This is based on al-Muzani’s view that dry ablution lifts ritual impurity. al-Ruwyani also preferred this view. (ibid 1/478).

10. Praying when one is unable to obtain water or earth

The Madhhab:

When one is unable to obtain water for ablution or earth for dry ablution, one must pray and then repeat the prayer later according to the jadid position.

Imam al-Muzani’s View

If one is unable to use earth or water, one must pray and one does not have to repeat the prayer later. This is the qadim position and the view that al-Nawawi adopted in Sharh al-Muhadhdhab (ibid 1/479).

11. The duration of post-natal bleeding

The Madhhab:

The minimum duration of post-natal bleeding is a moment, its usual time is forty days, and its maximum duration is sixty days.

Imam al-Muzani’s View

The minimum post-natal bleeding is four days and the maximum is forty (ibid 1/512-13).


12. The beginning of ‘Isha

The Madhhab:

The time for ‘Isha prayer enters with the disappearance of the red twilight (Rawdhat al-Talibin 1/181).

Imam al-Muzani’s View

 ‘Isha time enters when the white twilight disappears. This is also the position of Imam Abu Hanifah (ibid, al-Najm al-Wahhaj 2/15).

13. The minimum number of witr

The Madhhab:

The minimum witr prayer consists of a single rak'at, however, Qadhi Abu Tayyib considered it disliked to offer a single-rak’at witr prayer.

Imam al-Muzani’s View:

The minimum witr is three. al-Muzani based this view on Shafi’i’s statement: “Offer three rak‘ats of witr (ibid 2/293).

14. The ‘awrah of a free-woman

The Madhhab:

The ‘awrah of a free-woman includes her entire body, except for the face and hands.

Imam al-Muzani’s View

The ‘awrah of a free-woman includes her entire body, except for the face, hands, and feet (ibid 2/192-193).

15. Delaying a make-up fast until the following year

The Madhhab

Whenever one delays a make-up fast until the following Ramadhan, in addition to the make-up, one must give one mudd for each day missed.

Imam al-Muzani’s View
One must only make up the missed fast; giving a mudd is not obligatory. This is also the position of Imam Abu Hanifah (ibid 3/341).

The Status of Independent Views in the Shafi’i School

Sheikh ‘Abd Allah BaSudan writes that some of the Shafi’i scholars held independent views--views that went against the official view of the school. Scholars have relied upon such views for personal practice when following the relied-upon view of the school is burdensome or impossible. Independent views in the school are well-known and many. But in reality, independent views are not completely outside of the school, because an independent view can either be founded on istinbat, qiyas, or an ikhtiyar based on the school’s principles. Similarly, an independent view can be based on an earlier view of al-Shafi’i, a qadim position, or based upon a sound proof, since Shafi’i himself said: “When a hadith is found to be authentic, it is my position” (Mukhtasar al-Fawa’id al-Makkiyyah 60-61).

And Allah knows best,

Ahmad Adams