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[The following is part (4) of a series on two commentaries of Allm. Ibn Abidin Shami's Uqud Rasm al-Mufti. The first commentary is an elaboration by Muhammad Saifur Rahman placed under summary. The second commentary is a translation of Allm. Ibn Abidin Shami's Sharh Uqud Rasm al-Mufti.]
[RULE] [I say] Now you know that it is necessary to adopt the predominant view1 as well as identify the status of the scholar who has given predominance2 . It should be noted that it will be unreliable, in the present era, to give a fatwa by merely relying on [secondary] references from books of later scholars3
[This is] especially so for those [works] which are unedited such as Sharh Nuqayah of Qahistani, Dur Mukhtar, Ashbah wa Naza’ir, and the like. This is due to them being extremely brief and short to the point that it is almost arcane. Furthermore, in many places, they have omissions in the quotations. They give preponderance to that which is not dominant and in some instances declare an issue to be preponderant based on the Mazhab of another even though no one in their mazhab had stated such a thing. I have seen in the introduction to Sharh al-Ashbah of Allamah Muhammad Hibat Allah who states, Amongst the deficient books are Sharh Kanz of Mulla Miskeen and Sharh Nuqayah of Qahistani as not much is known of these two authors. [Also] those that include weak positions in their work such as the author of ‘Qinya’. [Likewise, should be cautious of] Dur al-Mukhtar’ of Haskafi, Nahr and Sharh Kanz al-Daqaiq’ of Aini as these [works] are too brief. Our Shaikh Salih al-Jinini says, “It is not permitted to give fatwa from these books unless the person is acquainted with that which is being quoted and is informed of its sources.” This is what I heard from him and he is a renowned and authoritative scholar of fiqh.
[I say] Sometime [the referencing error] was extended to about twenty books of the later scholars. Allmah Ibn Nujaym points out in Bahr al-Raiq. [What has occurred is that] there was an incorrect view which at first was mistakenly cited and that in turn was later quoted by those who came afterward and in that manner others cited from one another. This has occurred in several cases some of which has been corrected with annotations whilst others have not.
[Example] The payment on reciting the Quran is one such case. This came to pass with the authors of al-Siraj al-Wahhaj and Jauhara (Sharh al-Quduri) who stated that receiving payment [for the recitation of the Quran] is permissible and declared this to be the preponderant view (mufti bi-hi). They have got the case the other way round. In fact, preponderance is given to the permissibility of receiving payment on teaching the Quran and not its recitation. Most authors after him upheld [the incorrect view] and quoted it. This of course is clearly wrong. Many went as far as to give fatwa that it is permissible to receive money from acts of worship, generalised the rule and declared that this is the position of the later scholars. Some have, inferring this rule, have even asserted that it is permitted to receive money for Hajj. All of these are wrong and has stemmed from that initial error.
There is confirmed report from the three Imams (Abu Hanifa, Abu Yusuf, and Muhammad) that it is prohibited to receive payment for acts of worship. However, Mujatahids of the second and third category made an exception. They gave fatwa that it is permitted to receive payment for teaching as it had become necessary. [This is] due the discontinuation of maintenance which the teachers used to receive from the government treasury. There is a threat of the Quran being neglected if receiving payment is disallowed. Additionally, Islam faces [the threat of] extinction due to the need for the teachers to earn a living [instead of committing to gaining and furthering knowledge]. Subsequently, some have inferred upon this and have given fatwa permitting payment for giving Azan and leading Salat (imamat) as these are significant elements of Islam and therefore necessary and hence permitted also. This is also the position of the Muta’khirun and they attribute it to Abu Hanifa and his companions [retrospectively] declaring that had they known of the circumstance of our time they would have said this and retracted their original statements. Thus primary sources (mutun), expositions (shuruh) and fatawa have been published quoting them4 that it is prohibited to receive payment on acts of worship expect in the mentioned cases. The cause of this [exemption] is a necessity; the fear of Islam diminishing.
Since this has been clearly declared the basis [for exemption] then how could it be correct to state that it is the position of the later scholars to permit payment for the recitation of the Quran despite the fact that it is not a necessity? Consider! if a significant amount of time passes and no one pays another for this [recitation], no harm will come to Islam, quite the opposite, harm comes from payment in the sense that the Quran is turned into a tool for profit and a craft with which one auditions. The Qaris will become such that they will not recite for the sake of Allah but only in exchange for money. This in essence is riya which is to act in consideration of individuals other than Allah. So from where will such a person receive reward that the hirer wants to transfer their deceased?5 Imam Qadhi Khan states, “A person will not gain reward if he receives money in exchange for zikr” A similar ruling is stated in Fath Qadir regarding muazzins who receive payments. Had people known that there is no reward in this, none would have given anything. Thus they are gathering the forbidden fuel [of hell] by means of the Quran and Zikr. Many believe this to be amongst the greatest of good deeds whilst in fact it is from the worst abhorrent actions which are a consequence of allowing remuneration [for acts of worship]. Amongst other detrimental effects which have resulted include depriving orphans of their money, holding gatherings in their houses and disturbing sleepers with shouting, beating drums, singing, assembling women and men and other such flagrant excesses which I have outlined fully with references to the Ahl al-Mazhab in my article titled, ‘Shifa al-Alil wa bal al-Ghalil fi Butlan al-Wasiyyat bi al-Khatimat wa al-Tahalil’. The work includes endorsements from many jurists of this time the most notable amongst whom is the Mufti of Cairo, Sayyid Ahmad Tahtawi, author of the superior commentary of Dur al-Mukhtar (may Allah Almighty have mercy upon him).
[Example] The non-acceptance of repentance of a person who cursed the prophet (peace be upon him) is another example of this case [of incorrect citation]. The author of Bazaziyyah relates that, according to us [ahnaf] the execution of such a person is compulsory and his repentance will not be accepted even if he re-enters Islam. He attributes this viewpoint to al-Shifa of Qadhi Iyadh Maliki and ‘al-Sarim al-Maslul’ of Allamah Ibn Taimyyah Hanbali. Those who generally came after him adopted his assertion and cited it in their books including the notable expert Ibn Humam and the author of Darar wa Gharar. [This is] despite the fact that it was stated in al-Shifa and Sarim al-Maslul which expresses the positions of the shawafi and hanabila. It is one view of Imam Malik and certainly our position that repentance will be accepted. This is stated in the earlier books of the mazhab such as Kitab al-Kharaj of Imams Abu Yusuf and Sharh al-Mukhtasar of Imam Tahawi respectively as well as other books of the mazhab. I have expounded upon this issue comprehensively in a book which I have titled, Tanbih al-Wulat wa al-Hukkam ala Ahkam al-Shatim Khair al-Anam aw Ahad As’habihi al-Kiram alaihim al-Salat wa al-Salam.
[Example] The liability on security deposits which have been claimed destroyed is another such issue. It is stated in Darar and Sharh al-Majma of Ibn Malak that a person will be held liable if claims of loss is made without evidence. This view in turn has been cited in Tanwir which indicates that the person will be liable to pay the value of the deposit (irrespective of the value of the debt). Despite the fact that this is the position of Imam Malik, Allamah Khair Uddin, citing [Tanwir], has given fatwa in accordance to it and has stated that a person will not be liable to pay anything if evidence is provided. Our position, as has been outlined in Shunbulalia from al-Haqaiq, is that the person will be liable to pay the lowest market value from the deposit or debt irrespective of whether or not evidence is provided to support the claim that the deposit was destroyed. I have drawn attention to this in my marginalia Rad al-Muhtar ala al-Dur al-Mukhtar with mentions of those who gave fatwa in accordance to the mazhab and those who gave against.
[Conclusion] I have outlined many examples of these cases in which the authors of Bahr, Nahr, Minah, Dur Mukhtar and others have concurred; yet this was wrong. These omissions stem from either an oversight in referencing or a lapse in judgment. I have been vigilant on this matter in my marginalia Rad al-Mukhtar by ensuring that I cross-referenced issues that have been cited from other sources with earlier books. Consequently, I recollected the original excerpt in which the omission had occurred and commented upon it using sources from the appropriate books. Thus In this respect, this marginalia is unprecedented and will be indispensable. I ask the sublime that he help me in completing it.
[The problem is that] when those not well versed see an edict written in one or more books, they assume that is the mazhab and upon it is fatwa. They argue that these books are by the later scholars who had studied the books before and would have written within upon that which is the practice. They do not understand that this is a rule of thumb (not an absolute principle) and the opposite has occurred from in some of them as we have highlighted to you.
[Example] Once I gave a fatwa on an issue concerning waqf which was in accordance to that which was written in general books [of fiqh]. Shaikh Ala al-Din al-Haskafi, a distinguished muta'akhkhir scholar, seems to have been perplexed by this issue and has stated a view in Dur al-Mukhtar which contravenes the proper verdict. Consequently, my fatwa reached a group of muftis in the city who in turn wrote fatwas contradicting me and conforming to that which was stated in Dur al-Mukhtar. Amongst them some muftis further added, “This is stated in ‘Alai’ and the fatwa will be upon it as he is amongst the distinguished mutakhir scholars. If you have anything which opposes this, do not accept it.” Look at this great ignorance and recklessness in consideration of the shariah and giving fatwa without knowledge or references. If only they at least read the marginalia of Allamah Ibrahim al-Halbi on Dur al-Mukhtar they would have got it easily. In it the author has highlighted the fact that which is in Ala’i occurred due to an error in interpretation.
[Code] I have seen a fatwa of Allamah Ibn Hajar who was asked regarding a person who learns fiqh unaided, without a [qualified] teacher, and gives fatwa by relying merely on his study of books. Is such a person permitted to give fatwa? In response to this question he states,
Other than that which he has learned from authoritative teachers, it is not permitted for such a person to give fatwa in any form as he is a layman; uneducated with no appreciation of that which he is saying. It is prohibited for such a person to give fatwa from one book or even two. Correspondingly, Nawawi (may Allah mercy upon him) goes are as far as to state, not even if it were ten books for even all the ten or twenty may rely on weak statement in the mazhab and as such it is prohibited to follow them in this matter.
This is In contrast to an expert who has attained knowledge from authoritative individuals to the extent that they have developed an implicit aptitude for it. They determine the proper verdict, whilst having knowledge of the issues along with that which is normally associated with it, and subsequently, they give their fatwa according to it. Thus it is befitting that they be an Intermediary between the people and Allah Almighty.
As for the others [who are unqualified], if they encroach upon this noble role, they should be properly punished and severely chastised. The chastisement should be such that none do anything similar to this abhorrent action which leads to insurmountable problems. Allah knows best.