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•
IBN QAYYIM'S REFORMULATION OF THE FATWA

By

Nawir Yuslem Nurbain

• A Thesis submitted ta
the Faculty of Graduate Studies and Research
in partial fulfillment of the requirements for
, , the degree of Master of Arts
.,~

Institute oflslamic Studies

McGillUniversity
Montreal

1995

• © Nawir Yuslem Nurbaln

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 11

• Author

Tille
ABSTRACT

: Nawir Yuslem Nurbain

: Ibn Qayyim's Reformulation of the Falwa

Department : Instilule of Islamic Studies, McGill University

Degree : Masler of Arts

This lhesis is a study of Ibn Qayyim's approach to the falwa as defined in his

/'Iam .1I-MuwaqqiCin. This treatise deals primarily with the raIe of the mufti, the

procedure of issuing a falwa and the necessary sources for a falwiï. Lawful application

of these criteria ensures a proper and viable falwiï. Ibn Qayyim, however, highlights

the misuse of fUMas, specifically those on lJiyu/. By questioning this misapplication,

•
Ibn Qayyim hoped to redefine the entire use of the f<llwa in Islamic jurisprudence.

This argumentation is supplemented by a section addressing the dynamic essence of

the fulwiï. By examining the underlying <il/u of a ruling and the ma$luQu as the main

goal of its application, Ibn Qayyim believed that most rulings were, in some way,

inl1l1cnced by the surrollnding elements of time and space. If the <illu changed,due to
• ',' ."0'
c1mnging circumstances, Ibn Qayyim surmised' that the futwiï itself cOllld undergo
,
changes. This line of discourse helped establish thc[<Ilwiï as an adaptable tool of law,
"
fllrther indicating the ability of Islamic law tll accommodate unprecedented situations.

"
\

•
,

•
•

': .~
 11\

• Auteur

Titre
RÉsuMÉ

: Nawir Yuslem Nurbain

: La reformulation de la Fatwli d'Ibn Qayyim

Département : Institut des Etudes Islamiques, université MeGill

DiplOme : Maîtrise ès Arts

Ce mémoire porte sur l'étude de l'approche d'Ibn Qayyim concernant les lillll'<1

décrites dans son l'lâm al-Muwaqqi'ïn. Ce traité se concentre principalement sur le

rôle du mufti, la procédure d'émission ainsi que sur les références nécessaires 11 la

rédaction d'une fatwâ. L'application légale de ces critères assure la viabilité de la

fatw<1. Cependant, Ibn Qayyim met en évidence le mauvais usage des li,tWlïs, en

particulier celles concernant le l,Jiya!. Il remettait aussi en question ces applications

• erronées et espérait redéfinir l'usage de la /àtwâ dans sa totalité au sein de la

jurisprudence Islamique. Cette argumentation est complétée par une section porlant

sur l'essence dynamique de la fatwâ. En examinant l'aspect sous-jacent du 'ii/lI d'une

décision ainsi que du ma$latla en tant qu'objectif principal de son application, Ibn

Qayyim croyait que la plupart des décisions légales étaient, dans un certain sens,
, ,

" :!, '

influencées par des éléments entourant le t~mps et l'espace. Si le 'il/a était modifié par

le changement des circonstances, Ibn Qayyimsupposait qu~l!; fatwa elle-même

" ,~: '< !
pouvait subir des transformàtions. Celte interprétàl;on' contribuera à établir l'usage de
, 1 (~, ~,I: -... i' '
la fatwâ comme un instrument légal souple; c~ 4ui démontrera plus tard la capacité
, " . '1
'. \ ' ,

d'adaptation de la loi Islamique aux situations sans'préëédent.

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 iv

•
ACKNOWLEDGMENTS

1 would like to express my sineere gratitude to my main source of inspiration

and guidance, Professor Wael B. Hallaq, my thesis supervisor. Without his criticism

and advice, this work would never have seen complction. 1 extend my gratitude to the

staff of the Islamie Studies Library and McGiII University for facilitating my thesis

research. 1am also thankful to Yasmine Badr, Shaista Azizalam and Colin Mitchell for

their editorial assistance, and to Jane Tremblay for translating the abstract into French.

Appreciation and thanks are also due to the Government of Indonesia's

Overseas Training Office (OTO BAPPENAS) whieh has generously funded my two

year program. 1 am also indebted to the McGill-Indonesia IAIN Development Project

for coordinating the available funds. 1 also acknowledge the help of the Rector of the

IAIN (State Institute for Islamic Studies) Sumatra Utara in Medan, Indonesia and the

• Dean of the Sharï'a Faeulty, IAIN Sumatra Utara. Without their assistance, study at

McGiIl University would have been impossible.

Above ail, 1 would Iike to thank my beloved parents whose consistent

encouragement and love enabled me to complete this work.

This thesis is dedicated to my wife, Dra. Ida Hayati, and my daughter, Alfi

Amalia, whose devotion, patience, infinite forbearance, and'eneouragement made the

writing and the completion of this thesis possible.

•
 \'

•
NOTE ON TRANSLITERATION

In this study, the Arabie names and Islamie tel1ns ~re transliteralet! acconling

to the s) stem used by the Institute of Islamic Studies l'vlcGill University. The

followinr is a transliteralion table of the Arabie alphahet.

Arabie

...., b
.:;" t
...., th

<! j

e: 1)

e: kh
,) d

~ dh

.-,,-, .J r

.J z
,.-
1\
<j>' S ,1)
,.
I.J" sh

vf'> ~

vi> çI
J. t
j;
~

c
t
è. gh
...; f

• ~ q
 vi

•
~ k

J
Î m

u n

• h

) w

~ y
..
• ah/atla

To indicate long voweIs of T, {S, j these are typed by using the bars ubove
chunlctcrs : â, ï and ü.

{,

•
 \'11

• ABSTRACT

RÉsuMÉ
TABLE OF CONTENTS

.......................................................................................................... ii

............................................................................................................... iii
ACKNOWLEDGMENTS iv
NOTE ON TRANSLITERATION v

TABLE OF CONTENTS vii

INTRODUCTION 1

A. Ibn Qayyim's Life and Works 3

B. The Study of Ibn Qayyim 9

CHAPTER ONE: THE FATWA INISLAMIC

JURISPRUDENCE 14

A. Fatwii and Mufti 16

• B. The Qualifications of the Mufti

C. The Procedure of Issuing a Fatwii

l. The Source of the Fatwii .........;................................................................. 29
2. The Muftis and those who are responsible for Iftii' 39
19

29

3. The Manner in Issuing a Fatwii 40

CHAPTER TWO: FATWAS ON .{flYAL 46

A.l;Iiyal in Islamic Jurisprudence 47

B. Ibn Qayyim and l;Iiyal .................................................................................. 54

1. Ibn Qayyim's Rejection of l;Iiyal 56

2. Ibn Qayyim's Acceptance of l;Iiyal ;. 65

CHAPTER THREE: THE CHANGE OF THE FATWA FOLLOWING THE

CHANGE OF TIMES AND CONDITIONS 70

A. Ibn Qayyim's Concept of Ijtihiid 70

1. Ibn Qayyim and Qiyiis

•
72

2. Ibn Qayyim and Mlllila1)a 85

 viii

• CONCLUSION

SELECTEDBmLIOGRAPHY
91

95

•
 INTRODUCTION

Ihn Qayyim al-Jawziyya lI292-1350) was a reformer of the fourtel'nth

century.l He was a prolific scholm' who left bchind many important trcatises on
various subjects. One of lhese tremises is the /L'Wm <l/-IVIU\vuqqi'lll,2 which is dcvotell
ta a discussion of the [<l!wii in jurisprudence, aiming ta rcformulate its use, the
procedure of issuing a f<Hwii. and to considcr those who qlwlify as Hw/cis. Ibn Qayyim
deals with the reformulation of the tillw:T bCC.lllse he rcalized that it hml hcen
contradicting the n<.l$$ and ignoring, cven negating, the purpose (llWlJ;f~ù/) of the

Shurïca. The fatwiis that are considered by Ibn Qayyim ta be illvalid and ilIegal arc
those on 1)iyal, since they do not follow the proper procedure of issuing a /:Uwii and
even ignore the QurJan and the Sunna as the sOllnd sources of Islamic law. Ibn
Qayyim, therefore, deems il neeessary to dwell on disproving the validily of /:Ilwü:'i on

The Prophet MlI~ammad, according to Ibn Qayyim, was the tirst eligible
person to assume the post of mufti (uwwnlu man waqqarél Cém élf-R&lbb) in Islam:'

Following the Prophet were the Companions, the suecessars, and the ruqull:p who
acted as jurisconsuits.5 The muftis as mujtalûds, in the opinion of Ibn Qayyim, have
the right ta give explanatians and elaboration concerning al~lIbktim éll-slm'.. ·;yyé/II

1 J.N.D. Anderson, IsJamic Law in Arrica (London: Frank Cass & Co Ltd.,
1970), p. 17.

2 Il has been published in different editions. The one followcd hcre is lhal of
the Sacada Press, Cairo, 1955 in 4 vals., edited by Mu~ammad Mu~yï al-Din cAbd al-
l;Iamïd,

3 The discussion of rejecting and disproving fatwifs on biyal oecupies almOSL

tWQ vols. of the book, Le. vol. 3, pp. 171-415, and vol. 4, pp. 3-1 17.

4 Ibn Qayyim, je/iim aJ-MuwaqqiCjn, vol. l, p. Il.

5 Ibid., pp. 11-28.

 2

•
hased on nU$,ç and their own ijlihffd. 6 Sinee the problems and the questions raised to

the muliis vary, the answers of the muftis will inevitably vary. The role of mu/i.is,

therefore, exerted a considerable inlluence on the development of Islamic law. Joseph

Schacht obscrvcd that the "doctrinal devclopment of Islamic law owes much to the

activity of the mufûs.... As soon as a decision reached by a mufti on a new kind of

problem had been rccognized by the common opinion of the scholars as correct, it was

incorporated in the handbooks of the school."7 There are several other scholars, such

as Johansen, Powers, and Hallaq who affirm the important role of fUllVâs in the

dcvelopment of legal doctrine. Hallaq himself, with his article on the matter, unearths

a wcalth of evidence from various sources portraying how faMiis played a

considerable role in the growth and graduai change of Islamic substantive law. 8

Ibn Qayyim admitted that fallViis might change following the change of 'iidiil

and 'urf, times and conditions (Iaghayyur a/-fallVii bi laghayyur al-azmiin lVa a/-

• ul/1vii/),9 The main reason for this change, according to Ibn Qayyim, is ma$/~a.1O Ibn

Qayyim takes the risii/a of 'Umar as a reference and a basis for his conclusion

concerning the changeable nature of the fatlVii. 11 This thesis, therefore, is an attempt to

6 Ibid., pp. 79-85.

7 Joseph Schacht, An Introduction to Is/amic LalV (Oxford: University Press,

1991), pp. 74~75.

8 Wa~l B. Hallaq, "From FallViis to Furü'; Growth and Change in Islamic

Substantive Law," Is/amic LalV and Society 1, 1 (1994), pp. 29-65.

9 Ibn Qayyim, l'liim al-MulVaqqi'ïn vol. 3, pp. 14-70.

10 Ibid., p. 52.

Il Ibn Qayyim felt it necessary to give a long deliberation concerning the

•
risiila of 'Umar. Therefore, he devoted more than one volume of his l'liim a/-
MUlVaqqi'ïn to a discussion of this risiila. See l'liim al-MulVaqqi'ïn, vol. 1, pp. 86-
401, and vol. 2, pp. 3-165.
• analyze Ibn Qayyim's views, in his lclam al-Mùwilqqi'ln. on the
fIexibility in responding to various cases fueed by the community.

A. Ibn Qayyim's Life and Works

t'JIII'il and ils

Shams al-Din Abü 'Abd Allâh Mul;1ammud ibn Abi Bukr ibn Ayub ibn Sucd

Ibn I;lariz al-Zar'i al-Dimashqi was barn on ~afur 7, 691 A.H! January 29, 1292 A.D

and died on Rajab 13,751 A.H! September 16, 1350 A.D. He wus barn into a family

known for its learning. His father, Abu Bakr Ibn Ayyub, an expert on <[lm ill-Fm.l'iç/.

was the superintendent (qayyim) of the Jawziyya college, therefore, Ibn Qayyim, Ils

the son, came ta be called "Ibn Qayyim al-Jawziyya". The eollege, which then served

as court of law for the I;lanbali Qâçli al-Quçlât of Damascus und provided Ibn Qayyim

with a wide and erudite education, was founded by Mul;1yi al-Din Abu ul-Mal;1âsin

Yusuf ibn 'Abd al-Ral;1man ibn 'Ali ibn al-Jawzi,12 and Ibn Qayyim himself Imer on

• '1
beeame the imiim and a professor of that college. 13

Ibn Qayyim was barn and brought up in Dilinascus wherc he reccived his busic

education from his falher, a prominent eontemporary seholar in Dumascus. Ibn

Qayyim aIso studied under other eminent teachers, such as Qaçli Suluimân ibn l:Iamzuh

12 Abu I;ludhayfah 'Ubayd AIlâh ibn 'Aliyah in Ibn Qayyim, Al-Jawiib III-Kiiti
(Beirut: Dâr aI-Kitiib al-'Arabi, 1990), p. 1I.

13 See 'Imlid ai-Din Abu al-FidiP Isma'il Ibn 'Umar Ibn Kathir, al-Bidiiyah wa
al-Nihiiyah, 14 vols. (Cairo: Matba'at aI-Sa'âda, 1351 A.HI 1932), vol. 14, p. 234;
Abu aI-FaIâI;1 'Abd aI-I;layy Ibn aI-'Irniid, Shadhariit al-Dhahab fi Akhbâr man Dhahab, ('

8 vols. (Cairo: 'Maktabat aI-Qudsi, 1931-32), vol. 6, p. 168; 'Abdal-RaI;1miin ibn

Rajab, Kitab aI-Dhayl 'Ala Tabaqiit al-I;faniibilah, 2 vols. (Cairo: Matba'at al-Sunna
aI-Mul;1ammadiyyah, 1952), vol. 2, pp. 448-449; Sayed Ahsan, "Ibn Qayyim al-

•
Jawziyah," Islam and The Modem Age 12 (November 1981), 244-9, p. 244; NA
Baloeh. Great Books of Islamic CiviJjzaûon (Islamabad: Pakistan Hijra Council,
1989), p. 7 I.
 4

• (d. 711 AH/l311 ), Shaykh Abü Bakr 14 (d. 718 AH/1318), the son of the traditionist

Ibn 'Abd al-Dâ'im, and Ibn Taimiyya (d 728 AHI 1328).15 It is also asserted that

before Ibn Qayyim became a disciple of Ibn Taimiyya, he was a pupil of ~afi aI-Din

al-Hindi (d. 715 A.HI 1315), an opponent of Ibn Taimiyya who conducted scholarly

disputalions with him. It was from al-Hindi that Ibn Qayyim gained knowledge of

u,çiif. and it was only after his death that Ibn Qayyim became a disciple of Ibn
Taimiyya. 16 Other sources, however, mention that Ibn Qayyim became a disciple of

Ibn Taimiyya immediately after the laller's return from Egypt in 712 A.H/1312, and

had then stayed with him until the laller's death. Ibn Qayyim stood by Ibn Taimiyya

thr9ûgh thick and thin, and even suffered separate imprisonmeilt with him in the same

dtadel at Damascus in 726 A.H! 1326. Il was only after the death of Ibn Taimiyya in
,
'128 AHI 1328 that Ibn Qayyim was released,17

Ibn Qayyim took to teaching as a career, and on 6 ~afar 743 A.H/IO July 1342

• he gave his first lecture at the ~adriyya College. He continued to teach at this college

until his death on 23 Rajab 751 A.H!26 September 1350, and much to his credit, sorne

of his pupils became eminent scholars in their own right. 18 They include Zayn al-Din

Abü al-Faraj 'Abd al-Ra\:1mân ibn Rajab (d. 795 A.HI 1393), the author of Kitiib al-

14 His full name is Abü Bakr ibnal-Mundhir ibn Zayn aI-Dîn A\:1mad ibn 'Abd
al-Diï'im ibn Nu'mah al-Maqdisi aI-J:lanbaIi who died in Ramaçlân 718 A.H.! 1315 at
the age 93 years old. See Ibn aI-'Imad, Shadhariit al-Dhahab, vol. 5, p. 48.

15 H. Laoust, "Ibn Kayyim aI-Djawziyya," in The Encyclopaedia of Islam"

New Edition vol. m, eds. B. Lewis, et al. (Leiden: E.J. Brill, 1965), p. 821.

16 Muhammad Yusuf Kokan, Imiim Ibn Taimiyyah, quoted in Ahsan, "Ibn

Qayyim al-Jawziyyah," p. 244. \\

17 Ibn Kathïr, al-Bidiiyah wa al-Nihiiyah, vol. 14, p. 234; Mu\:1ammad Abü

Zahrah, Ibn Taimiyya: ijayiituhü wa cA$ruhu (Cairo: Dar aI-Fikr aI-cArabï; n.d.), p.
527; W. Montgomery Watt, Islamic Philosophy and Theology(Edinburgh: Bdinburgh

•
University Press, 1992), p. 145. .

18 BaIoeh,. Great Books, p. 71.

 5

• Dhayl cala Taba'lat al-lfanabiIa;19 Shams al-Din Mu~ammad ibn 'Abd al-Qüdir al-

Nabulsi (d. 797/ 1395). the author of Mukhl11~tlT Ttlbaqlit tll-lftmlihiltl of Abo

'Abdullah. his own son who replaced him in teaching at the Sadriyya Collcgc ancr his
Ya'l:i:~o

death. 2\ and Ibn Kathir (d. 774/ 1372). the author of al-Bidayah Wtl a/-NihliYtlh as he
witnesses it when dealing with Ibn Qayyim's biography.22

Although Ibn Qayyim, after acquiring his education in Ttlfsir. IfaditlJ and FiC/h.

advanced the ideas of his great teacher Ibn Taimiyya. he maintaincd his own vicws

and carved out for himself a separate identity.23 He had held, on two occasions.

different views from those of the chief 'laç/i of Damascus, Taqi al-Din al-Subl;'( (d.

777 A.HlI378) who was an affiliate of the Shafi'i school. The views were on nltltters

concerning fi'lh, on which he issued fatwas which infuriatcd al-Subki. The fl'rst

occasion arose in Mu~arram 746/ May 4, - ,June 2, 1345, concerning a race or a

•
shooting contest (musaba'lah) where each competitor puts down his sutke. The

question that was raised was whether this contest was permitted without the

participation of a third competitor (al-mul)aIIiI) who takes part without contributing a

stake,and thus makes lawful an operation which otherwise might have been regarded

as constituting a game of chance. Ibn Qayyim maintained that the presence of this

muI;aIIil was not necessary.24 Then, in 750/ 1349, for the second time, he disagreed

19 Published in 2 vols. in Cairo: Matba'at al-Sunna al-Mu~ammadiyyah, 1952.

See Sharf al-Din, Ibn Qayyim, p. 61.

20 Sharf al-Din, Ibn Qayyim, p. 62.

21 Ibn Kathïr, al-Bidiïyah wa al-Nihiïyah, vol. 14, p. 235.

22 Ibid., p. 234-5.

23 Ibid., p. 234.

• 24 Ibid., p. 216; cf. H. Laoust, "Ibn Kayyim al-Djawziyya," p. 822. Ibn

Qayyim has a special' treatise on the matter of the Race (al-Musiiba'lah) viz. Kitiib
 6

•
with al-Subkï concerning the problem of ta/aq (repudiation) on which Ibn Çayyim

issued a numbcr of fa/was which differed from those of al-Subki,25

Although Ibn Qayyim, like Ibn Taimiyya,26 was influenced by Sufism, he

nevertheless followed the latter in refuting the ideas on prophecy and pantheism which

had sprcad under the influence of Ibn al-'Arabi's doctrine (d. 638 A.HI 1241).27 In

other fields, such as jurisprudence, Ibn Qayyim held different views on several cases

from those of Ibn Taimiyya, or cven from those of the ijanbali school in general. He

held this difference because his main goal was to cali for a return to the Qur'an and the

Sunna, a freedom of thought (tilQillTUr a/-fikr), and renunciation of imitation (taq/id),

and making the Qur'ân and the Sunna the judge and the ruler in ail matters. 28 Ibn

Qayyim, therefore, insisted that those in charge of social problems or those mediating

between parties should arbitrate according to the Qur'ân and the Sunna, for both are

• Bayiin a/-Da/il 'a/a Iscighna' a/-Musabaqa 'an a/- TilQliJ. See Ibn aI-'Imâd, Shadharat
a/-Dhahab, vol. 4, p. 169.

25 Ibn Kathïr, al-Bidayah wa al-Nihayah, vol. 14, p. 235; cf. Laoust, "Ibn
Kayyim," p. 822.

26 There has been à'controversy over ideas conceming the involvement of Ibn
Taimiyya in Sufism. Scholars who perceive Ibn Taimiyya as an opponent of Sufism,
according to George Makdisi, might have been influenced by Goldziher's thesis which
asserts that the ijanbalis were hostile to Sufism. This hostility is attributed in a special
way to Ibn aI-Jauzï and Ibn Taimiyya. However, this theory, says Makdisi, does not
stand· up to close scrutiny. On the basis of Henri Laoust's writings of Ibn Taimiyya's
affinities with Sufism and other sources conceming the matter, Makdisi concludes thàt
Ibn Taimiyya does not qualify as an opponent of Sufism. Makdisi even in his article
concerning the matter tries to show further how the ijanbali school has close
relationship with Sufism. See George Makdisi, "The ijanbalï School and Sufism,"
Humaniora Islanlica, 2 (1974), pp. 61-72.

27 Baloch, Great Books, p. 71.

28 An important aspect of the period, i.e. the times of Sultan N~ir Mul,1ammad
'!:ln Qalâwün (1293-1341), in which Ibn Qayyim lived, was the widèspread cuits of

•
:Sufism and taqlid (following and supporting opinions of a particu1ar Imam). See A.A.
Islahï, Economie Thought of Ibn al-Qayyim (Jeddah: International Centre for
Research in Islamic Economies King Abdul Aziz University, 1984), p. 2.
 7

• revealed from God and are not contradictory to each other.:!9 On the basis of such a

view one can deduce that Ibn Qayyim, although a l;Ianbalï seholar, was not a fanatic

adherent of the l;Ianbalï school of law. He used his reasoning freely and sometimes

differed from the l;Ianbalï points of view and agrced with other schools, such as the

Malikï, in some cases. For instance, in the case of distributing the alms tax (zukfit) and

one-fifth of the booty (khums al-ghanipim), different schulars held different opinions.

Aecording to Shafi'ï, both alms tax and booty should be distributed eqllally among ail

the dasses (al-a~iinïf); Malik. and the people of Medina, althollgh they admitted the
right of ail the classes mentioned in the Qur'an concerning alms tax and booty,30 they

did not conceive an equal distribution among ail the classes as necessary. On the other

hand, Al;1mad Ibn l;Ianbai and Abü l;Ianïfah agreed with Shafi'i in the distribution of

booty and with Malik in the allotment of the alms-tax. 3\ Ibn Qayyim, al'ter observing

the Qur'an, the Sunna and the practice of the Companions, judged that the distribution

• '-,\
of both alms-tax and booty should be based on the needs of èllch class, withollt

necessarilygiving them equal shares, but giving priority to the class that nceds them

mos!. Although this idea is similar to that of Malik, yet it does not signify that Ibn

Qayyim had, in this case, departed from the l;Ianbalï school. Rather, it denotes that he
\\
came ta such conclusion after careful observation of the sou:ces (al-adillah, Le. tlle

Qur'iin, the Sunna, and the ~;~e

·1'
of the Campanions) which supported and led him,
~ ,

29 Ibn Qayyim, al-Turüq al-lfukmiyyah fi al-Siyiisah ul-Shar'iyyat; (Cairo: al-

Mu'assasah al-'Arabiyyah li al-Tibii'a wa al-Nashr, 1961), pp. 85-6; cf. Sharaf al-Oïn,
Ibn Qayyim, pp. 8 0 - 1 . '

30 The verses states that those who are entitled ta the alms are only "the poor
and the needy, and those who collect them, and those whose hearts arc ta be
reconciled, and ta free the captives and the debtors, and for the 'cause of Allah, and the
wayfarers ..." Q. 9: 60. See Muhammad M. Pickthall, The Glorious Qur'iin (New
York: Tahrike Tarsile Qur'iill, Inc., 1992), p. 187.

• 31 Ibn Qayyim, Ziid al-Ma'iid fi Hadyi Khayr al-'1biid, 4 vols. (Cairo: Malba'at
MU~lara al-Biibïal-l;Ialabï, 1950), vol. 3, p. 222.
 8

•
to draw that conclusion. In his discussion, Ibn Qayyim expIains that l'rom the

observation of the na,ç~ and what the Prophet and his Companions did, it beeomes

clear that the opinion of the people of Medina conceming aims-tax and booty is closer

to the truth, as the Prophet had given priority to classes in more need than others. In

practice, for instance, the Prophet had distributed the booty (fay') of I;Iunayn to those

whose hearts are to be reconciled (a/-mucallafah qulübuhum), Le. the people of Mecca

who had just converted to Islam after the capture of the city, but did not give people of

Medina (a/-An,çar) anything.32 Moreover, the Prophet and his Companions never

called the orphans (a/-yatiimii), the poor, the needy (a/-masiikin), the wayfarers (abnii'

a/-sabi/) 'and the other parties together for the distribution of the booty and thé alms
and distributed them equaily among the parties.3 3

Ibn Qayyim, as a prominent scholar of his time, wrote numerous treatises on

various subjects related to jurisprudence and legal theory. He wrote lC/iim a/-

• Muwaqqicïn can Rabb a/-cA/amin (4 vols.)34 which is a guide for the perfect muftï; al-
Turuq a/-I;lukmiyyah fi a/-Siyiisah al-Shareiyyah,35 and al-$a/iit wa Al,lkiim
Tarikullii;36 Ziid al-Maciid fi Hadyi Khayr aJ-Clbiid,37 which deais with the life and
expeditions of the Prophet (sirat al-Rasül wa ghazawiitih) and jurisprudence (fiqh). In

32 Ibid., p. 219.

33 Ibid., p. 222.
li
~. 34 Published in Cairo: Matba'at al-Sa'ada, 1955. Other editions with different
publications have different volumes, such as Cairo, 1325 A.H. which has 3 vols., and
Delhi, 1313-14 A.H.,which has 2 vols. See Sayed Ahsan, "Ibn Qayyim ai-Jawziyah,"
p.244, ,

35 Published in Cairo: ai-Mu'assasah ai-'Arabiyyah li ai-Tiba'a wa ai-Nashr,

1961.

•
36 Published in Cairo, 1956.

37 Published in Cairo: MatbaCat Mu~tara ai-Babï ai-I;Iaiabï, 1950.

 9

other fields, such as mysticism (al-ta$alVlVut), he wrote MIldiÏr{; 1l/-SlIlikin.JS 'lddilt ul-

$iÏbirin IVOI Dhakhirat ul-Slliïkirin IVOI al-Fa\Vif'id,J9 mnong others in theology ("lIm 11/-

KaliÏm) he wrote Shita' ul-'Ali/ fi MasiÏ'il al-QII(1iP \1',1 ul-Q,ldr \Vil ul-f:likmah \Va ul-
Ta'lil,40 and others. 41

B. The Study of Ibn Qayyim

There are several scholars who have studied Ibn Qayyim and his works. These

studies are mos~ly in Arabie and deal with various aspects of his intellectual life. They

include the work of 'Abd al-'A~ïm Sharf al-Din, Ibn Qayyim ul-Jmvziyyu: 'A$rullU IV,I
Manhajuhu IVOI AriÏ'ullU fi al-Fiqh IVOI ul-'AqiÏ'id IVOI al-Ta$ulVlVuf; 'Awa~1 Allah Jad

I;Iijazï, Ibn aI-Qayyim 11'01 MalVqifullU min 011-Tafkir al-IsliÏmi; Al)mud Mahir Mal)müd
al-Baqrï, Ibn aI-Qayyim min Athiirihi aI-Isliimiyyah; Mul)ammad 'Abd al-Sallar

Al)mad Na~ar, al-Madrasah aI-Salafiyyali IVOI MalVqifu Rijiiliha min al-Mantiq IVOI lIm

• al-Kalam; Sabrï al-Mutawallï, Manhaj ahl ;l/-Sunnah fi Tafsir ;l/-Qur'iin al-Karim:

38 Published in Beirut: Dar al-Ji!, 1991.

39 Published in Beirut: Dar al-Nafii'is, 1986.

40 Published in Beirut: Dar al-Ma'rifah li al-Tiba'a wa al-Nashr, 1978.

41 The scholars have calculated different numbers for his works. For instance,
Brockelmann listed fifty two books, see Carl Brockelmann, Geschichtc der Arabischcn
Litteratur (Leiden: E.J. Brill, 1938), Supplement II, pp. 126-8; Ibn 'Imüd in his
Shadhariit aI-Dhahab, gives a list of forty five of Ibn Qayyim's works; and Malik
Zulfikar 'Ali in his article "Imam Ibn Qayyim al-Jawziyyah: 1)iiliit-i-zindagï aur
mU$annafiit," Oriental Col/ege Magazine, vol. 39, no. 3 (May, 1963), pp. 45-9, as il is
cited by Sayed Ahsan, "Ibn Qayyim al-Jawziyyah," p. 244, gave the names of sixly-
six books attribuled to Ibn Qayyim; Ahsan himself names 28 of Ibn Qayyim's works in

•
his article "Ibn Qayyim al-Jawziyyah," 246-7, and Salïm 'Ali al-Thaqafi in his Matali{l
aI-Fiqh aI-IfanbaIi, 2 vols. (Cairo: Ma!abi' al-Al)ram al-Tijiiriyyah, 1978), vol. 2, pp.
154-6, mentions 53 books of Ibn Qayyim.
 ID

•
Dirasa Mawç/üCiyyah li Juhüd Ibn a/-Qayyim a/-Tafsiriyya;t2 'Abd al-Ra~man al-
Na~mwï, /bn Qayyim a/-Jawziyya: DirJsa Mawç/üCiyyah Ta1)/ïliyyuh Tarbuwiyyah. 43

The aforementioned works, focusing on caqidah, fiqh, ta$uwwuf, and Ibn

Qayyim's thought in general, and on the significance of his tafsir and education in

particular, do not touch the question of the fatwa, a subject with which Ibn Qayyim
was grcatly concerned. This study is, therefore, the first attempt to delve into Ibn
Qayyim's standpoint on the fatwa as expressed in his book IC/am u/-Muwuqqi'ïn.

Ibn Qayyim is not the first scholar to study fatIVa. There are several scholars
preceding him who have cornmented on, or even written specifie works on the fatwa.
Wael B. Hallaq has dealt in some detail with the chronological juristic discussion on
the flltIViï, and, in particular, the requirements, imposed by the scholars, for being

muflis.44 Hallaq starts his discussion with Shafi'ï's (d. 820) viewpoint on the

•
I",
requirements to be fulfilled by a muftï. He mentions that although Shafi'i does not

explicitly state that a âiufli must be capable of ijtihiïd, yet he requires him to be aàept

in sevcml branches of knowledge in which a mujtahid must be proficient; this

knowledge includes proficiency in the Qur'an, the Prophet's Sunna, the Arabic

language, the legal questions subject to consensus, and the art of legal reasoning
(qiyas).45 Hallaq continues the discussion on the matter by introducing the views of

42 Published in Cairo: Dar al-Thaqafah li al-Nashr wa al-Tawzi', 1987.

"

43 Published in Beirut: Dar al-Fikr al-Mu'a~ir, 1991.

44 WLcl B. Hallaq, ''lita' and Ijtihad in Sunni Legal Theory: A Developmental

Account," in Is/amic Legal Interpretation: Muflis and their Fatwas, eds. Khalid
Masud, Brink Messick and David Powers (Cambridge: Harvard University Press,
1996; forthcomIng). 1 am thankful to him for making this article available to me and
allowing me to use it for my research.

• A5 Ibid. Cf. Shafi'i, al-Umm (Cairo: al-Matba'at al-Kubra al-Arnïriyya, 1907),

7 vols., vol. 7, p. 274.
 11

•
several prominent scholars who came aftcr Shafi'i such as Abu al-Husayn al-B'lsri (d.
1044) in his J(jliib a/-Mu'lamad fi U,çUl a/-Fiq1l,46 Abïi Isl)üq Ibrahim Shirüzi (d. 1083)

in his Shari) al-Luma',47 Abïi al-Walid Büji (d. 1081) in his Illk.ïm iI/-Fu~LÏ/ li A/:Jkiilll

a/-U~Ul,48 Abïi al-J:Iasan Mul)ammad ibn J:Iabïb Mawardi (d. 1058) in his Adilh .1/-

Qiiçfi,49 Abïi Mul)ammad al-Juwaiynï (d. 1046), the father of Imüm al-l:Iaramayn, with

his commentary on Shafi'i's Risalil. The views of several other prominent scholars

such as Imam al-Haramayn 'Abd al-Mülik al-Juwaynï (d. 1085), Abïi ~Hïmid al-

Ghazali (d. 1111), Sayfal-Œn al-Amidï (d. 1234), Jamül al-Œn ibn al-~[âjib (d. 1248),

and Ibn al-$alal) (d. 1245) are also discussed by Hallaq, especially for their exposition

on the qualification of a mufu. There are four positions artieulated by Sunni legal

theorists, as Hallaq eoncludes, concerning this qualification. Those who lived in the

eight up to the eleventh eentury required a mufti to be a mujtilhid in order to be

qualified for ifta'; ethers who came later sueh as Amidï, realizing thut Illujt'lllids of

• the highest ealiber no longer existed, recognized the mujwhid fi iI/-madhimb und

allowed them to be qualified for the office of futya; the third position aeeepted u

muqaIIid in the role of a mufti; but only when a mujtahid is not available; und the

fourth position approved of a mufti-muqaIIid, whether or not a mujtahid is to be

found. 50

In his introduction ta Adab al-Mufti wa aI-Muswfti of Ibn ul-$aml), Muwaffuq

ibn 'Abd al-Qadir affirms that there were several seholars who h~d
,
specifically dealt
".

46 ed, M. Hamidullah, et al., 2 vols. Damas: Institut françai de Damas, 1964-5.

47 ed, 'Abd al-Majïd Turia, 2 vols. Beirut: Diir al-Gharb al-Ismmï, 1988.
\~

48 ed. 'Abd al-Majïd Tuda, 2 vols. Beirut: Diir al-Gharb al-Isiamï, 1986.

49 ed. M. HiHii Sarl)an, 2 vols. Baghdad: Malba'at al-Irshad, 1971.

•
',
1o'

50 Hallaq, "lftif' and Ijtihiïd" lfortheoming).

 12

•
with the falwii berore and after Ibn aH;aIaI). He mentions that those who came berore

ibn al-~aIaI), in addition lo those discussed by HaIlaq, were Al)mad ibn 'Ali ibn Thabit

al-Kha!ïb al-Baglldadï (d. 463 AH! 1071) with his al-Faqih wa al-Mulafaqqih, al-

I;!afi?, yüsur ibn 'Abd al-Barr (d. 463 AH! 1071) with his liimic Bayiin al-cl/m wa

FaçJlih. Following Ibn ~alal) came several prominent scholars who wrote on the falwii

and who were, in certain aspects, influenced by the work of ibn ~alal). They were

Imam al-Nawawï (d. 676 AH! 1277) with his Adiib al-Falwii wa al-Mufti wa al-

Muslafli;51 Al.lmad ibn J:Iamdan al-J:Iarranï al-J:Ianbali (d. 695 AH! 1296) with his

$ifal al-F<lIwii wa al-Muslafti; Shams al-Din Mul)ammad ibn Abï Bakr ibn Qayyim al-

Jawziyya (d. 751 A.H! 1350) with his ]Cliim al-Muwaqqi'ïn 'an Rabb al-'Alamin; and

al-Suyü!ï (d. 911 A.HlI50S) in his Adiib al-Fatwii.52

Although Ibn Qayyim's discussion on the [alwii came later than that of

numerous scholars who came before him, and he might have been influenced by their

• works, yet, his discussion of the matter differs from that of his predecessors, for he

lays greater emphasis on the proper procedure of issuing the fatwii and the refutation

of that fatwii which is issued improperly, Le. fatwiis on 1)iyal. In his discussion, Ibn

Qayyim also deals with the muftis and the requirements for this post, since these

matters are closely linked to the fatwiï in general. And Ibn Qayyim's exposition on the

chunge of the fatwii following the change of pluce and condition is a remarkable

càntribution to the development of Islamic law relevant to his age in particular, and to

subsequent erus in general.

51 Published in Beirut: Dar al-Basha'ir al-IsHimiyyah, 1990.

Ir

•
i' 52 Ibn 'Abd al-Qadir in Ibn al"::>alal), Adab al-Mufti wa al-Mustafti, ed. Ibn
'Abd ul-Qadir (Beirut: Maktabat al·'U!üm wa al-J:Iikam-'Alam al-Kutub, 1986), pp. 6·
7.
 13

•
This thesis comprises three chupters. The tirst will deul with the J1l1l1'iÎ in

Islumic jurisprudencc und on the eligibility of u mulii. The second chupter will discuss

Ibn Qayyim's rejection of filClviIs on ~liya/ on the busis tlmt they do not represent the

vulid und lawful fallviIs which he supports, in arder ta muintuin the 1l1il,~1<1~1iI in

chunging situutions. Ibn Quyyim requires the use of Ila~~ uml the /ilClviis of the

Compunions as the buses of issuing fatwiIs. The {atwiis on ~liYll/, however, uccording

ta him, do not take these bases into considerution und muy even ignore them. Hence.

the discussion of his arguments against the fatwiIs on 1)iya/ will be the main foc us of

this chapter. The third chapter will focus on Ibn Qayyim's discussion of 'Umur's

fatwiis, and in particular on the former's concept of qiyiis which mostly tukes the

latter's fatwiis as its basis. Although sorne of 'Umm"s fmwiIs seem to be contradictory

ta the na$$, yet Ibn Qayyim concludes that they still follow the proper procedure of

issuing a fatwii, and that they fit the purpose and ends of the Shari'ü. This discussion

• will be followed by an elaboration of Ibn Qayyim's concept of Tag/liIyyur a/-filllVlï bi

taghayyur a/-azmiIn wa aJ-a1)wiI/ in which Ibn Qayyim takes 'Umar's idea of qiyiis and

his fatwiis as an argument in support of this theory. The conclusion of this thesis will

address the question of whether Ibn Qayyim, with his views on the filllViI in his l'/am

a/-Muwaqqi<In, had managed ta demonstrate the adaptabilily of [slamic luw ta

changing situations.

•
•
CHAPTERONE

THE FATWA IN ISLAMIC JURISPRUDENCE

The fatwiI has played an important raie in the history of Islamic jurisprudence

since its earliest days. Indeed, Ibn Qayyim went as far as considering iftiI' (issuing

fatwiIs) and istiftiI' (asking for fatwiIs), along with the Prophet's efforts, among the

ways in which God (Allah) revealed His guidance and regulations.

The institution of fatwii was introduced by the Prophet himself. Prophet

Mul:Jammad, as he came into contact with a growing number of diverse communities,

was required to respond to questions raised to him and to settle legal disputes. Hence,

he started issuing fatwiis based on the injunctions revealed by God, or, sometimes, on

his own personal opinion which was often guided and inspired by God. In addition, he

frequently elaborated upon, and provided substantive and detailed explanations of the

many Qur'ÜI1ic dictums which w::re rather terse or too general for common

comprehension. He did so in order to make God's guidance and regulations as clear

and as applicable as possible to his people and to the generations to come.

This practice was scrupulously followed and maintained by the Companions

after the Prophet's death. Among them were those who issued numerous fatwiIs,

further elaborating and interpreting the injunctions; both a Qur'anic na$$ or a

prophetie tradition. At times, they even gave new interpretations on both the Qur'an

and the prophetie traditions, such as what 'Umar ibn al-Kha!!ab did. 1

Not surprisingly, their successors and the scholars after them, have maintained

the practice of issuing fatwiIs alive, and resorted to il whenever they needed to; for the

needs and the problems of the Muslim society had gradually changed and developed,

• 1 Several examples of such fatwiis

'Umar's fatwiis in chapter three below.
will be discussed when dealing with
 15

• thus requiring the legal system to be reeonsidered in response 10 these changes and

developments.

With regards to this praetice and its relution to the adaplability of lslamic law.

Emile Tyan. as quoted by Liebesny. eoneeives that in Islam. where there is. in

principle, no legislative power. the role of the jurists was extremely important. Indeed.

it was due to the opinion of thé' Illufiis that the legal doctrine munaged to udapt itsclf.

in the course of the centuries, to the practiee of the people, thus enabling legal

developmentto proeeed smoothly and quietly.2

In his book, ['liim al-Muwaqqi'in, Ibn Qayyim demonstrates and elaborates

upon the practice of issuing fatwiis as undertaken by the Prophet, the Companions.

their successors, and even by later seholars living dllring the early periml of lslmn. He

classifies the Companions into those who issued numerous flltw1T.~, sllch as 'Unlllr ibn

• al-Khanab, 'Ali ibn Abi Talib, 'Abd Allah ibn Mas'üd, and others; and those who

issued less fatwiis than the first group, such as Abü Bakr al-~iddiq, Umm al-Saliimah,

Abü Sa'ïd al-Khudri, Abü Hurayrah, 'Uthman ibn 'Affan, and many others. 3

Moreover, aecording ta Ibn Qayyim, there were four Campanions whose

disciples became the source of knowledge on Islam, and l'rom whom Islamie branches

of knowledge, sueh as flqh and u$ül al-Dïn, developed and sprcad throughout the

Arabian peninsula. They were ibn Mas'üd, Zayd ibn Thabit, 'Abd Allüh ibn 'Umar,

and 'Abd Allah Ibn 'Abbüs. The people of Medina imbibed their knowledge from the

disciples of Zayd ibn Thabit and 'Abd Allah ibn 'Umar; Meecans learned l'rom the

2 Herbert 1. Liebesny, The Law of the Near and Middle East (New York: State

•
University of New York, 1975), 1'.35.

3 Ibn Qayyim, ['lilm al-Muwaqqi'ïn, vol. l, pp. 11-12.

 16

• disciples of 'Abd Allûh ibn 'Abbûs; and the disciples of 'Abd Allûh ibn Mas'üd taught

the people of Iraq.4

ln the sueeeeding period, there came into being the muftïs, who followed in the

foolsteps of the successors, and issued fatwiis in places, such as Medina, Mecca,

Ba~ra, Küfah, Shûm (Syria), Mi~r (Egypt), Qayrawan, Andalus (Spain), Yemen, and

Baghdad, and wherever Muslims lived. Among the leading and prominent muftis in

Baghdad, Ibn Qayyim mentions Abü 'Ubayd al-Qûsim ibn Sallam, Abü Thaur Ibrahim

ibn Khülid al-Kalbï, and AQmad ibn I;Ianbal. AQmad ibn I;Ianbal, the founder of the

I;Ianbalite sehoolto whieh Ibn Qayyim belongs, was a scholar who issued a wealth of

(;lt\viis that were subsequently collected and edited by al-Khallül in his a/-Jiimi c a/-
Kabir. Ibn I;Ianbal's fatwiis were primarily based on na$$ and the fatwiïs of the
Companions, and therefore, according to Ibn Qayyim, followed the fatwiis of the

•
Companions. 5

A. Fatwii and Mufti

Etymologically the word "fatwii" means "a formaI Iegal opinion," the verb

"uliii - yufti" means "to give a formallegal opinion," and its noun form "iliii'" eonveys
"deliveranee of formallegal opinions, or the office of a muftï. ,6

Teehnieally a fatwii can be defined as "a formallegal opinion given by a mufti,/'

or canon lawyer of standing, in answer to a question submitted to him either by a

4 Ibid., p. 21

5 Ibid., pp. 22-9.

•
'.
6 J.M. Cowan (ed), The Hans Wehr DietionlUJ' of Modern Written Arabie
(New York: Spoken Language Services, Ine., 1976), p. 696.
 17

• judge or by a private individua!. On the basis of such opinion a jl!dgc may dccidc

case. or an individual may regulatc his pcrsonallife.,,7

One may conclude that. based on this delinition. a /iltll'lI reqllires

:1

three

components; a person to give a formallegal opinion who is called a mu/u: a person to

ask for a fatwii who is called a mustaftj; and the act of giving a /àtll':I which is called

a futylI or iftlI,. 8

The word fatwlI has been repeatedly mentioned in the QlIr'ünY For instance in

Q. 4: 127. "They consult thee (yastaftünaka) concerning women. Say: Allah giveth

you decree concerning them.,,10

The word yuftikum, according to 'Abd al-J:Iaqq ibn 'Atiyya. me:ms "He

explains to yotl what you ask Him of legal malter." 11 Thus, istiftii', means seeking an

•
explanation for a prob1em or inquiring on the legal status of a matler. 12 Emile Tyan, as

quoted in Liebesny, says that iftii' is an institution whieh is intimately connected wilh

7 D.B. Macdonald, ''Fatwii, '' First Encyclopaedia of Islam, cds. M. Th.

Houtsma, et al., vo!. III (Leiden: EJ. Brill, 1987), p. 92.

8 E. Tyan, ''Fatwa'', The Encyclopaedia of Islam New Édition, cds. B. Lewis,

Ch. Pellat, and Joseph Schacht, vo!. II (Leiden: EJ. Brill, 1965), p. 866.

9 In the form of "aftii - yufti" and its derivations, it has been used live times;
and in the form "istaftii - yastafti" and its derivations, it has been used six limes. Sec
MuIJarnrnad Fu'ad 'Abd al-Baqi, a/-Mu'jam al-Mufahras Ji Alru? al-Qur'iin (Caire: "
Dar al-J:Iadith, 1987), p. 512.

10 Mui)arnrnad M. Pickthal1, The Meaning of the Glorious Qur'iin: Text and

Explanatory Translation (New York: The Muslim World League, 1977), p. 93.

Il Ibn 'Atiyya as quoted in Muwaffaq ibn 'Abd Allah ibn 'Abd al-Qadir (cd.),
Adab a/-Mufti wa a/-Mustafti li Ibn al-$alii/.l (Beirut: Maktabat al-'U1üm wa al-J:Iikam,
1986), p. 23.

• 23-4.
12 'Abd al-Karim Zaydan aS quoted in Ibn 'Abd al-Qadir, Adab al-Mufti, pp.
 18

• the Islamic judicial system and which is the practical consecration of the prillciple of

mashiira (consulting with experts), and it consists of providing an answer (fatwii) ta a

legaI or theological question by a mufti (the persan who gives the answer) for a

mus/am (the persan who requests and receives the answer).13

Ibn Qayyim defines the mufti as a persan who expIains the regulations of Gad

(/,Jukm A//iih) based on his understanding of either the Qur'an and the Sunna, or the

books and na$$ of his Imam. 14 The Prophet Mul.tammad, as Ibn Qayyim afflrms, was

the first persan ta assume the post of a mufti. Hence, he deems the fatwiis issued by

'- -. .
the Prophet ta be reguIations as binding as their Qur'anic counterparts, and

admonishes aIl Muslims ta follow them. His argument is that the Qur'an requires

every Muslim ta be loyal ta, and ta foIlow, the commands of Gad and His Messenger;

and in case of a dispute among MusIims, it should be judged and solved by referring it

ta the words of Gad and those of the Prophet as dispIayed in the Qur'an and the

• Sunna. 15

Although the Prophet had sanctioned the fatwiis issued by the Companions
::
during his Iifetime, most of them and their successors loathed ta issue fatwiis unless it

became a sine qua non ta do 50. They even hated rashness in issuing il. When a new

issue was raised and a fatwii became a must, they would exercise their reason and

capability and seek the solution or the ruling concerning the issue from the Qur'an, the

13 Herbert J. Liebesny, The Law of the Near and Middle East (New York:
State University of New York, 1975), pp. 38-9.
: .-
14 Ibn Qayyim, !'liïm aJ-Muwaqqi'in, vol. 4, p. 196.

15 Ibid., vol. l, p. Il. Q. 4: 59 says, "0 ye who believe! obey Allah and obey
the messenger and those of you who are in authority; and if ye have a dispute

•
concerning any matter, refer it ta Allah and the messenger if ye are (in truth) believers
in Allah and the Last Day. That is better and more seemly in the end." See Pikthal1,
The Glorious Qur'iïn, p. 83.
 19

• Sunna, or from the falwiis of the rightly guided caliphs, on the basis of which they

would issue their own falWiIs. 16

It is also reported that many Companions considered a tilllviI adequate if it is

given by one of their colleagues, and refused to issue a new one when similar cases

arose. However, since an array of cases needcd Icgal clarification -- for they ltad nol

been comprehensivcly dcalt with, or cven mentioned in the Qur'ân and the Sunna, nor

had the elderly Companions diseussed them -- the knowledgeable Companions of the

time were eompelled to issue falwiis on these cases. Thus, the Companions, such as

Ibn 'Abbas, and the successors, such as Sa'ïd ibn al-Musayyab, who was a prominent

muftï from the successors, issued a multitude of facwiis and dealt with cases hithcrto

unheard Of. 17

The falwiis issued by the muftïs are essentially regulations for Muslims in

• general, and the muslaftï in partieular. However, they are not binding (glUlir

mu/zimiil) as the muslaftïs and others, who have the similar case, may or may not

choose to be loyal to the fulwiis.. They, therefore, differ from the decisions isslled by

judges which address the disputant parties only, and are usually binding (mu/zil/llÏl).IK

B. The Qualifications of the Mufti

Early prominent jurists conceived a close link between iftii' and ijlilliid, and

they, therefore, stipulated that to qualify as a jurisconsult (mufti) one must !irst be u

16 Ibn Qayyim, Ie/iim a/-Muwuqqi'ïn,.vol. l, p: 33.

•
17 Ibid., pp. 34-5.

18 Ibid., p. 38.
 20

• mujtahid. 19 Shafi'i (d. 820), for instance, requires that a mufli must be adept at certain

kinds of knowledge such as knowledge of the Qur'an, the Prophet's Sunna, the Arabie

language, the legal questions subject to consensus, and the art of legal reasoning
(qiyiis).20

Abü a1-ijusayn al-Ba~ri (d. 1044), two centuries later, explicitly requires a

jurist to be a mujlahid in order to qualify as a mufti. To reach this qualification, he

must display skill and erudite knowledge of legal reasoning whieh jpclude, according

to al-Basri, all branches of rational and textual knowledge, such as knowledge of the

revealed texts, and related disciplines, such as that dealing with abrogation (aI-niisikh

wa aI-mansükh), the transmission of l;1adith, and the methods of establishing and

verifying the cause ('illa) of a case of law. 21 When one fulfills these requirements, a1-

Basri's declares, then one can issue falwiis based on his own reasoning, and not on the

•
teachings of other jurists. But if a person simply cites the opinion of other jurists in

answer to a question raised to him, he will not be considered a mufti and his answer

will simply be a report of a previous opinion. 22 Accordingly iflii' cornes to mean the

exercise of ijûhiid, and when a mufti issues a falwii by following the authority and

doctrines of others, he is considered a muqaIIid, not a mufti. Such an act, Le. a1lowing

a muqaIIid to practice ifIii', according to Ba~ri, is a grave deed, since it entails that

laymen who are commonly defined as muqaIIids are permitted to issue fatwiis which
.~ .

19 Hallaq, "!flii' and ijûhiid in Sunni Legal Theory: A Developmental

Account," (forthcoming). Hallaq in this article deals chronologically with the
requirements for the post of a mufti exposed by Sunni jurists starting with Shafi'i.

20 Shafi'i, al-Umm, 7 vols. (Cairo: a1-Matba'at al-Kubra a1-Amiriyya, 1907),

vol. 7, p. 274. cf. Hallaq, "lflii' and ljûhiid" (forthcoming).

21 Abü al-J:lusayn Mul;1ammad ibn 'Ali a1-Ba~ri, Kitiib aI-Mu'tamad fi U~ül aI-
Fiqh, ed. M Hamidullah, et al., 2 vols. (Damas: Institut français de Damas, 1964-5),
vol. 2, pp. 929-31, cf. Hallaq, "!flii' and ijûhiid" (forthcoming).

22 Hallaq, "lftii' and ijûhM' (forthcoming).

 21

• is completely unacceptable. 23 Thus, Hallaq, based on his survey of the wOl'ks of

prominent eleventh century jurists, concludes that ail of these jllrists lIlaintained,
directly or indireetly, that ijtihiid is a prereqllisite for iti.ï,.24

AI-GhazaH (d. 1111), a prolllinent twelfth centllry jllrist, also follows in the

footsteps of his predecessors in asserting that a mufti must fullïllthe qualifications of

a mujtahid. 25

The thought of the thirteenth century jurists, sueh as ÂlIlidï (d. 1234), Ibn al-

I;lajib (d. 1248), and Ibn al-~alal:i (d. 1245), denotes a change towards the qualification

of ijtihiid required of any mufti. Âmidï, aCter discussing the disagreelllents mnongst

jurists on the matter whether a non-mujtahid is permitted to issue fatwiis according 10

the School of a mujtahid or not, concludes that a mujtahid within a legal school

(mujtahid fi al-madhhab) who is knowledgeable of the methodology of the

• independent mujtahid (mustaqil) that he follows, and who is capable of deriving mies

in accordance with this mcthodology and of dcfcnding his position in scholarly

debates is entitled ta practice iftii,.26 Ibn al-J:Iajib goes further by conceding Ihat, a__"
"~'~

jurist who is knowledgeable of a madhhab and is capable of scholarly reasoning but is

not a mujtahid within the madhhab, Le. not a mujtahid fi al-madhhab, is entil1ed ta

23 Ba~rï, Kitiib al-MuCtamad, vol. 2, p. 932.

24 Among the works of eleventh century jurists that Hallaq survcys, bcsides
the work of B~rï, are those of Shirazï (d. 1083), Baji (d. 1081), Mawardi (d. 1058),
Abü Mul:iarnmad al-Juwaynï (d. 1046), and Imam al-J:Iaramayn al-Juwaynï (d. 1085).
See Hallaq, "Ifui' and Ijtihiid" (forthcoming).

25 AI-Ghaziilï, al-Mankhül min TaCliqiit al-U~ül, ed. Mul:iammad J:Iasan Haytü

(Damascus: Dar al-Fikr, 1980), p. 462; Id. al-Musta~fii min Cflm aJ-U~üJ, 2 vols.
(Damascus: Dar al-Fikrï, n.d.), vol. 2, p. 391.

• 26 Sayf al-Din al-Âmidï, al-IQkiim fi U~ül al-A1)kiim, 3 vols. (Cairo: Malba'at

Mul:iarnmad 'AH ~ubaYl:i, 1968), vol. 3, p. 255.
 22

• issue fatwiis. 27 Ibn al-SalaI), a contemporary of Ibn al-I:Iajib, brings another change to

the requirements of a mufti, and even introduces two kinds of muftis, an independent

and a dependent muftï. The former is on a par with a mujtahid mustaqil who has

established his own legal school, and who, according to Ibn aI-SalaI), has ceased to

exist. 28 The second kind is of four types: The firsttype of mufti has ail the qualities of

a mujtahid mustaqill but has not established his school of law. The second type of

muftï is capable of deriving legal norms, for unsolved cases raised to him, based on

the methodology of a mujtahid mustaqiJ. This type of muftï is also known as mujtahid

fi al-madhhab. The third type of mufu is the one whose abilities in ijtihâd are less than

those of the two earlier types, but nonetheless masters, and can defend the teachings of

the mujtahid he follows. Fourthly, there is a type of mufuwho is weak in methodology

:md legal reasoning, but is kn0\\lledgeable orthe teachings of his school. 29

•
Ibn Qayyim, who rose to prominence during the fourteenth century, maintains

that a mufu, who sometimes functions as a qâçii, is required to have sufficient

knowledge and understanding of the Sharï'a on which he bases his fatwâs. This

requirement, says Ibn Qayyim, is both necessary and inevitable. He takes the Qur'anic

verse, Q. 7: 33, as his argumenl. 30 On the basis of this verse he concludes that to issue

27 Jamiïl al-Din Ibn al-I;Iajib, Muntaha al-WU$ül, ed. Badr al-Din al-Na'siïnï
(Cairo: Ma~ba'at al-Sa'ada, 1908), p. 165.

28 'Abd al-RaiJman al-Sharazürï Ibn al-$aliï1J, Adab a/-Mufti wa al-Mustafu in

Fatâwâ wa Masâ'iJ Ibn a/-$a/âl), ed. 'Abd al-Mu'lï Qal'ajï, 2 vols. (Beirut: Dar al-
Ma'rifa, 1986), vol. l, pp.: 21-8.

29 Ibn al-$alaiJ, Adab a/-Mufu, vol. 1, pp. 29-37.

30 Ibn Qayyim, l'lâm al-Muwaqqi'ïn, vol. l, p. 38. The verse says: "Say: My
Lord forbiddeth only indecencies, such of them as are apparent and such are within,

•
and sin and wrongful oppression, and that ye associate with Allah that for which no
warrant hath been revealed, and that ye tell conceming Allah that which ye know nol."
See Pickthall, The Glorious Qur'ân, p. 147.
• any fatwiI withoUl knowledge'l is equivalent to committing shame fil 1 deeds

(fawiï/Jish), sins and injustice (al-ithm wa :II-?-uIlII). and the assigning of partners

God (al-shirk).32 Moreover, Ibn Qayyim vehemently protests against Silch I:lCw:/s
10

especially if the fatwiI issued relates to the domain of !mIm and {lan/Ill. and is

propagated by someone with no basie knowledge, or who pllrposcly creates a

falsehood and claims that it is derived from the words of God. In disproving this

fatwiI, Ibn Qayyim bases his argument on Q. 16: 116 and 117." which say:

"And speak not, concerning that which your own longues qualify (as clean or

unclean), the falsehood: 'This is lawful (/JaIiII) and this is forbidden ({mn/m): so that ye

invent a lie against Allah. Lo! those who invent a lie against Auah will not suceeed. A

brief enjoyment (wiII be theirs); and theirs a painful doom.,,34

A mufti, aecording to Ibn Qayyim, should convey 10 the people the Sharï'a as

• revealed by God. If, on the other hand, he informs lhem something contradictory to, or
:~'--"

differing from the Revelation, he would be considered to speak without knowlcdge

and his words will carry no weight. But, if he exercises his personal reasoning (ijlilu/d)

and makes an optimal effort to pursue the truth (al-/Jaqq), even if he fails to reach the

latter, then he would not be considered as one who speaks withoUI knowledge. In

addition, although he may unintentionally reaeh a wrong conclusion, he wi Il still

31 The knowledge that Ibn Qayyirn has in rnind here is that of the Qur'an and
the Sunna, which he advocates as the sources of the truth and of ,he Sharï'a.

32 Ibn Qayyirn, l'IiIm al-Muwaqqi'in, vol. l, p. 38.

•
33 Ibid.

34 Pickthall, The Glorious Qur'iIn, p. 275.

 24

• deserve a reward for his effort in the Hereafter, since he had endeavored to reach the

truth and had a good intention in doing so.35

The minimal knowledge which a muftï should have, according to Ibn Qayyim,

is knowledge of the Qur'an, and the Sunna and its asânïd ~a.(Jï/.!ah.36 In addition, the

mufti must be familiar with the fa/was of the Companions, for their fa/was, according

to Ibn Qayyim, is the binding proof for the Sharï'a after the Qur'an and the Sunna. 37

ln issuing fa/was based on the above mentioned knowledge, a muftï is required to

display a sound understanding of two concepts. They are: the original case and the

method of deriving the ruling for it, i.e. having knowledge of the indications (qara'in),

amiïrat, and 'aliirnat, of that case from its primary sources; and secondly, an awareness

of ail the rulings in the Qur'an and the Sunna and their relation to the case in order to

apply them to that case. 38 From the above, one may safely conclude that Ibn Qayyim,

•
following the tradition of previous scholars, requires the possession of a certain

amount of knowledge for anyone to qualify for the office of if/a'.

Ibn Qayyim, therefore, forbids a muftï from issuing a fa/wa based on /aqlïd,

as taq/ïd indicates that the muqallid has no knowledge of the matter or the sources

from which the rulings are to be derived. Hence, Ibn Qayyim elaborates anà'classifies

/aq/ïd into lawful and unlawful. 39

(1

35 Ibn Qayyim, l'liirn al-Muwaqqi'in, vol. l, pp. 43-4.

36 Ibid., p. 44.

37 IbId.,
. vol. 4, pp. 147-8.

•
38 Ibid., vol. l, pp. 87-8.

39 Ibid., vol. 2, p. 168.

 25

• The unlawful taqlïd is of three types. Firstly, there is the lilqlïd which ignores

the revealed sources, i.e. the Qur'an, and the Sunna, as the muqallid feels adequate by

merely imitating his forefathers or teachers. Secondly, there is the wqlïd of someone

with no recognized competence or proficiency in legal matters. And thirdly, there is

taqlïd after the proof had been established which denies the statement of someone who
is imitated (muqallad). This kind of taqlïrl, Le. the third one, aecording ta Ibn Qayyim,

is much worse than the first one, for the latter simply ignores the use of the revealed

texts before establishing any proof, while the former deliberately rejects the use of

revealed proof as it had been established. For disqualifying these three kinds of taqlïd,

Ibn Qayyim relies on the Qur'anic verses40 condemning those who resort ta taqlïd.

The verses basically condemn the imitation of the unbelievers and ignomnt ancestors,

and not the emulation of knowledgeable schotars and rightly guided mutèis. The

Qur'lin, on the other hand, urges the cornrnon people ta question the knowledgeabte

• and rightly guided scholars for something the former do not have knowledge of. Ibn

Qayyim, therefore, recognizes the taqlïd of those who are knowledgeable and adept on

the Qur'an and the Sunna, and are capable of conducting ijtihiid and deriving rulings

from their sound sources.

Moreover, as long as caqlïd does not abandon the na$$, Ibn Qayyim considers

it cornrnendable for cornrnon people, and therefore lawful.41 ln addition, if someone

does not have any access ta the Qur'lin or the Sunna, and can onty obtain the verdict

for his problem from the persan more knowledgeable than himself on the Shariea, in

40 Among the verses of Ibn Qayyim's reference arc: Q. 31: 21 (wa idhiï qïla
lahum'ittabicii ma anzala Allah,' Qiï!ii:'bal nattabicii miï wajadniï calayhi iïbiï'uniï ..); Q.
5: 104 (wa idha qïla lahum: 'caciï!aw iliï miï anzala Allah wa iliï al-Rasul, ' qiïJii:
'1)asbuna ma wajadniï calayhi iïbiï'una), and others w~ch condemn those who abandon
the revealed guidance and are satisfied with imitating their ancestol's. See Ibn Qayyim,

•
Icliim al-MuwaqqiCin, vol. 2, p. 169.

41 Ibid., vol. 2, p. 169.

 26

•
this situation laq/ïd of this knowledgeable person is recommended, and even
obligatory.42

Ibn Qayyim, therefore, aIlows people to follow the fatwiis of other scholars, as
long as the fatwii is applied for the former only, and not for others. Moreover, in the
absence of scholars who quaIify for ijtihiid, it is permissible, according to Ibn Qayyim,
to issue a fatwii based on other scholar's doctrine.43

Ibn Qayyim recognizes four types of muftis which are discussed in the
following pages:

1. The firsttype of mufti is the one who is conversant with the Book (the Qur'an), the
Sunna, and the statements of the Companions. He is called a mujtahid, and tries to
resolve newly arising cases in accordance with these proofs. He may sometimes, in
his ijtihiid, agree with the previous mujtahids. This agreement does not necessarily

• detract from his ability of ijtihiid, for ail previous mujtahids had sometimes agreed
with those who were more knowledgeable than them on severai legai cases. A case
in point is Shlifi'i's statement: "1 imitate 'Alli' on one question of lfajj'. The scholars
in the above capacity are allowed and able to offer fatwiis, and their fatwiis could
be sought after. Moreover, through them the need and the dutYof ijtihiid could be
fulfilled. They are those about whom the Prophet had said, "At the end of each
century God will raise for this umma someone who revivies its religion for it,"44

42 Ibid., vol. 2, p. 241.

43 Ibid., vol. 1, p. 46.

•
44 Reported by Abi Dliwüd, aI-l;liikim, and aI-Bayhaqi on al-Ma'rifah from
Abi Hurayrah. Cf. al-Fat./l al-Kabir, vol. 1, p. 353; Wahbah aI-Zul;tayli, U$ül al-Fiqh al-
Isliimiyyah, 2 vols. (Damascus: Dar aI-Fikr, 1986), vol. 2, p. 1082.
 27

•
and it is about them that 'Ali ibn Abï Tiilib suid. "The face of the earlh will never he

free l'rom a persan acting as a proof for God. "45

2. The second type of mufa is a mujrahidwho is restricted to the school of a purliculur

scholur (mujtahid muqayyacfl6fi madhhab). He is weil versed in the lutter's Ji/tlviI~.

verdicts. sources and principles. and is eligible ta derive rules l'rom them. He muy

resolve matlers based on his own ijtihiid without imitating his illl<lm either in mie

or proof. But, since he foUowed the latter's puttern of ijtihiid und method, he is

called a mujtahid affiliated to a school. AI-Qaçlï Abü Ya'1a and al-Qaçlï Abü 'Ali

ibn Abï Müsa, according ta Ibn Qayyim, were muftïs l'rom this group.47

3. The third type of mufa is a mujtahid within the school of a purticulur scholar to

which he is affiliated (mujrahid fi madhhab). He is well-versed in his Imam's proof

and fatwifs, and in issuing a fatwif, he does not diverge l'rom the doctrine and the

• fatwifs of his Imam, but scrupulous1y adheres to them. The mu/li of this category,

says Ibn Qayyim, is in favor of his Imüm's proof and doctrine and even considers

them compatible to the na$$ of the Shurï'a. Furthermore, whenever his Imüm's

doctrines and nltwifs ure at hand, he will not feel it incumbent upon himself to seek

the proof l'rom the Qur'ün and the Sunna in arder ta issue a f.1rwiI Ibn Qayyim

criticizes this kind of mufa, as he is in fact qualified and weU-versed in performing

ijtihiid and deriving the rulings directly l'rom the Qur'ün and the Sunna, yet he still

45 Ibn Qayyim, Icllim al-MuwaqqiCjn, vol. 4, p. 212.

\~ 46 Ibn Qayyim seems ta have used literaI meaning of the word muqayyad
here; what he really means is a mujtahid who deliberately makes himself restrieted ta
a madhhab while in fact this mujtahid has the qualifications which a mujtahid mustaqil c
should have. This type of mujtahid, i.e. the second type of Ibn Qayyim's
classifications, is more qualified than the third one, i.e. mujtahid fi madhhab; and what
Ibn Qayyim caUs as mujtabid muqayyad fi al-madhhab is named by Ibn $alü~
mujtahid fi al-madhhab. See p. 22, above.

• 47 Ibid., p. 212.
 28

•
adheres to the doctrine of the Imam of his school, and even claims that his Imam is

more competent than, and superior to, anyone else, and therefore deserves

emulation. 48

4. The fourth type of muftï, in Ibn Qayyim's classification, is someone who is well-

versed in the teachings of the madhhab he is affiliated to and masters its fatwiis and

the rulings derived by the madhhab. But nonetheless declares himself to be the

imitator (muqallid) of that madhhab in ail aspects of Iegal issues. Although he may

at times mention or quote the Qur'an or the Sunna, he does not do this for the

purpose of seeking, or deriving rulings from them, rather for the purpose of

pursuing bIessings from God. Moreover, the muftïs of this class will prefer their

madhhab 's fatwiïs to those of the Companions, whose fatwiis , in the view of Ibn

Qayyim, arc considered sound proofs and second only to the Qur'an and the Sunna.

This is because the muftis of this group, says Ibn Qayyim, consider their Imam

• more qualified and more eligible than others, even the Companions, of deriving

rulings from their sources. Hence, these muftis adhere to their Imam's fatwiis, even

if his fatwiis contradictthe fatwiïs of the Companions.49

Ibn Qayyim seems to follow the standpoint of his predecessor in conceiving

certain requirements for the post of a mufti, namely, the qualification of ijtihiïd. Ibn

Qayyim, however, lays greater emphasis, not only on the knowledge and skill of a

mufu, but also on his use of the sound sources of the Sharica in his fatwiïs, which are:

the Qur'an, the Sunna, and the fatwiis of the Companions. In the absence of these

three sources ijtihiïd is conducted according to the spirit of the Qur'an and the Sunna..

•
48 Ibid., p. 213.

49 Ibid., p. 214.
•
C. The Procedure of Issuing a FatwB

Ibn Qayyim introduced certain procedures to be fol1owed in issuing a thtlV:;

for the latter to be valid and lawful.

1. The source of the fatwii.

For Ibn Qayyim, the source of the fatwii plays a pivot,ù role in determining the

latter's lawfulness. Moreover, since he conceives a fatwii as an activity of expressing

the SharI'a delivered by a mufa, he admonishes the latter to base his flltWlïs dircctly

on the sources of the SharI'a.

Ibn Qayyim recognizes several sources of the SharI'a l'rom which the l'lIlings

can be derived, they are:

a. The first and the main source is the na~$ (textual proof), i.e. the Qur'an and the

•
1:
Sunna, which is the sound source of the SharI'a. A mufa, aceording to Ibn Qayyim,

must first and foremost look at the ml$$ to derive a ruling for the case mised to him.

Here, his knowledge of the Qur'an and the Sunna plays an important role in

achieving that purpose, Le. that of finding and deriving the appropriate ruling for

the case. Furthermore, Ibn Qayyim affirms that a mufa can neither rcfer directly to

the decision or opinion of any scholars whom he is in favor of, nor can he exercise

his own persona! opinion, in order to come to a decision coneerning the ruling for

the related case without at first exercising his ability to seek sueh a solution l'rom

the na$$. If he ignores the na$$, reaches a decision and issues a fatwii based on that

decision, and then his fatwii is found contradictory to any na~~. his falwii will thcn

be rejected and considered void and unlawful. Ibn Qayyim even eonsiders it

•
 30

•
forbidden for a mura to issue a farwiI without taking the na~~ as ils basic starting

point, if the na,ç,ç provides the regulation for the matter in question. 50

In supporting his conclusion, Ibn Qayyim advanees several arguments from the

Qur'ân, sueh as Q. 33: 36; 24: 51; 5: 44, 45, 47; and 16: 116. These verses

propagate the obligatory use of the revealed texts while considering and deciding a

ruling concerning lawful and unlawful deeds or issues (ta1)liI wa ta~lrïmJ.51 These

verses inform the believcrs that they will have no other alternative, if God and the

Prophet (through the Qur'ân and the Sunna) have provided them with an explicit

regulation, but to accept that regulation as the rule, because if they do, they will

achieve bliss and success in their lives. Otherwise they will go astray and be judged

disbelievers, or wrong doers. 52.

ln another part of his le/am a/-Muwaqqi<ïn, Ibn Qayyim also cites other

• QlIr'ânic verses which are closely related to the previous ones, such as Q. 28: 50,

?l8: 26, 4: 59. He lays special emphasis on the last verse, Le. Q. 4: 59, which
"\
~'minds ail Muslims not to follow their own speculations in seeking the cule of

50 /bid., vol. 2, p. 260.

51 Ibid., pp. 260-1.

..
52 Besides the Qur'ânic verses, Ibn Qayyim also supportshis view by quoting
several prophetical hadïth, the opinion, or practices, of the Companions and that of the
previous prominent scholars. Among the practices of the Companions which support
Ibn Qayyim's vie\v'concerning the use of na$$ is that of 'Umar. AI-Shâfi'i reported,
says Ibn Qayyim, that''ti\man asked him (Shâfi'i) to show a proof that 'Umar replaced
his certain decision with'\the other one because of a report on a prophetical traditipn.
Shâfi'i replied by informing that Sufyan reported, trom the authority of Zuhrï, from
the authority of Ibn aI-Musayyab, that 'Umar decided that the blood I1).oney of a dead
husband goes to his clan (aJ-diyya Ji aJ-eaqi/ah), and his wife did not inherit her
husband's blood money. Al-I;>a1}lJâk ibn Sufyân then informed eUmar of a letter from
the Prophet, addressed to him, admonishing him that the wife. of aI-$abbâbi is to

•
inherit her husband's blood money. Based on this information, mmar then revised his
decision to conform to the Sunna of the Prophet. See his, Ie/iïm aJ-Muwaqqi'ïn, vol. 2,
p.265.
 31

•
God. but that they should follow the guidance of God and His lIlesscngcr. This is

directed towards believers in general. who should be guided by the Qur'an and the

prophetie tradition in their lives. and for muftis in particular as it provides them

with the primary sources of the law. 53 In addition. Ibn Qayyim asserts that the

repetition and association of the word "!ii"a" with Allah and the Prophet in this

verse indieates that obedience towards Allah and the Prophet. by taking the Qur'an

and the prophetic tradition as the truc guidance and the main source cspecially in

the domain of the Shari'a. is absolute and universal. 54

Thus, Ibn Qayyim eoneludes that the na~~ is not only the lirsl and forelllosi

proof for issuing a fatwa, bul lhat il encompasses bolh lhe Qur'an and lhe Sunna of

lhe Prophel.

Ibn Qayyim affirms lhal lhe Sunna performs lhree functions in ils relation 10

• lhe Qur'ITn. Firslly, it cornes in accordance with the Qur'an (muwlï/ïqatan /1l/lU), anù

functions by an alliance to il. Seeondly, il explains and elabomtes upon(bllYlïn

tafsïr) the Qur'an. Thirdly, it provides new rulings which lhe Qur'an does nol rcfer
WIl

to. Although the Sunna in its third function perpeluates new rulings, in addilion 10

those in the Qur'an, it 1s, aeeording to Ibn Qayyim, just as obligalory for Muslims 10

follow and to obey these new injunetions. 55 These three functions, Ibn Qayyim

adds, do not make the Sunna different l'rom, or even eontradiclory 10, lhe Qur'an,

but rather compliment the Qur'ün, and must lherefore be followed and considcred

primary sources by muftis. In addition, considering the Sunna a primurf source and

53 Ibid., vol. l, p. 48.

54 Ibid.

55 Ibn Qayyim extensively deals with this matter, Le. lhe third function of the

• Sunna towards the Qur'an, and supports it with numerous examples. Sec l'/am a/-
Muwaqqi'ïn, vol. 2, pp. 288-394; vol. 3, pp. 3-14
;,.j\
\_>
.
 32

•
referencc for a futwa is in fact an implementation of the command of Qur'an itself,

for the Qur'an obliges Muslims 10 obey and to follow the Messenger and his Sunna

which sometimes provides new rulings. 56

b. The practice of the Companions and their futwas are considered by Ibn Qayyim as

proofs of the Shari'a, and therefore function as another source of futwas after the

nu~,ç. A mufti can resort to the practices and futwiis of the Companions in order to

issue a futwa when he cannot find or derive a ruling directly from the nu~~.

There are two kinds of fatwiis traced to the Companions: First, the futwas

which were issued by the Companions during the life of the Prophet. These fatwiis

became part of the Shari'a only with the 'approval of the Prophet, because during his

life, he was the only authoritative legislature. An example of this kind of fatwa,

cited by Ibn Qayyim, is a fatwa of 'Ali concerning three people who came to him

• during his stay in Yemen, arguing for a boy. Each of them claimed thatthe boy was

his own son. 'Ali resolved the maller by drawing a lot (qurCah) between them. The

person who won the lot was the father of the boy and was charged \Vith the payment

of two thirds of blood money for Lie other two, each of whom received one third.

This decision was then reported to the Prophet and approved by him57

/'
Secondly, there are fatwiis issued by the Companions after the death of the /.'

Prophet, on which the scholars hold divergent opinions. If a fatwawas unanimously

approved and supported by ail the Companions through the consensus of the

Companions, or, in the words of Ibn Qayyim, if none of the Cornpanions showed

his disagreemimt with the fatwa, the Sunni séholars are in agreement that such a

56 Ibn Qayyim, al-Turuq al-ijukmiyyah, pp. 72-3.

• 57 Id., lclilm al-Muwaqqi'in, vol. 1, p. 203.

• fatlVa is binding and represents the most authoritative form of ijm11,·.5H However. on

the fatlva of a single Companion. the scholarH are not in agreement and hold three

different views:

a) Imam Malik, one view of Imam Shafi'i. one view of Imam AI.lnmd Ibn ~Ianbal. and

sorne of the I:Ianafi jurists were of the opinion that the {atlVii' of a Companion iH an

absoIute proof and takes precedence over qiyas regardless of whether it is in

agreement with the qiyas in question or otherwise. 59 In supporting their view. they

refer to the Qur'an which provides reference to the Companions. such as Q. 9: 100.

"And the first to lead the way, of the Muhajirin and the An~ar, and thoHe who

followed them in goodness - Allah is weil pleased with them and they are weil

pleased with Him .... "60 This manner of praise for the proponents of this view

indicates that every Companion should do the same, and the conclusion, therefore,

will be that the fatlVa of a companion is a proof of the Shari'a.61

• 1:
Although those who are not in agreement with this view might argue that the

Qur'anie references to the Companions are ail in the plural, which would imply that

their individual views do not necessarily eonstitute a proof, the proponents of this

view respond by affirming that the Shari'a establishes their uprightness ('ada/all) as

individuais, and those who follow them in good. deeds have been praised because

they followed their opinion and judgment both as individuals and as groups. The

proponents of this view also based their viewpoint on several /;Jaditll, Hueh as "My

58 Ibid., vol. 4, p. 120; Mohammad Hashim Kamali, Princip/es of Is/amic

Jurisprudence (Cambridge: Islamic Texts Society, 1991), p. 235.

59 Kamali, Principles of Islamic Jurisprudence, p. 237.

•
60 Pickthall, The Glorious Qur'iin, p. 192.

61 Kamali, Principles, p. 238.

 34

• Companions are like stars; whoever you follow will lead you to the right path"

(a~!Jiibi ka al-nujüm bi ayyihim iqtadaytum ihtadaytum). Another !Jadith declares

that: "Honor my Companions, for they are the best among you, and those who

follow them and then the next generation, and then lying will proliferate after that

..." (akrimü a~1Jiibi fa innallUm khiyiirukum, thumma alladhina yalünahum thumma

alladhina yalünallUm thumma yazhar al-kadhib).62 Based on these !Jadiths, it may be

safe to affirm that, following the way of the Companions is equal to correct

guidance, which, in turn, implies that their teachings as weil as their fatwiis

constitute a proof that commands adherence.

b) A~mad Ibn J:Ianbal in another view of his, the J:lanafi jurist Abü aI-J:lasan al-Karkhi,

the Ash'arites and the Mu'tazilites held the view that the ijtihiid of a Companion is
not a proof, and does not bind the succeeding mujtahids or any one else to it. 63 The

proponents of this view take the Qur'unie text, Le. Q. 59: 2 as their basis. The verse

• says, ".... So learn a lesson, 0 ye who have eyes!." They argue that this verse makes

ijtihiid the obligation of everyone who is competent to exercise it, and makes no
distinction whether the mujtahid is a Companion or not. What is obligatory is ijtihiid

itself, not adhering to the ijti/liid of anyone in particular. This verse, according to the

above-mentioned scholars, also indicates that the mujtahid must rely directly on the

sources of the Shari'a and not imitate anyone, including the Companions.64 In

addition, this group also argues that, since a Companion was one among other

mujtahids, he might have committed errors, and it is therefore not obligatory to

62 Ibid.

63 Ibid., p. 239.

64 Ibid.; cf. Abü J:lümid Mu~arnrnad AI-Ghaziili, a1-Musta~fij min 'lim al-U~ül,

•
2 vols. (Cairo: aI-Maktabat al-Tijliriyah, 1937), vol. l, p. 135; Sayf al-Dïn 'Ali Ibn
Mu~arnrnad al-Amidi, a1-1/;lkiim fi U~ü1 a1-A1Jkiim, 4 vols. (Beirut: al-Maktab al-
Islümi, 1982), vol. 4, p. 149.
 3S

• foHow him. Hence, his fatwiI does not constitutc a binding proof. Furthermore, the

evidence which disproves the act of taq/ïd, in general, is also applied to negate the

taq/ïd of the Companions. 65

AI-Shawkani, for instance, maintains that the fatw.ï of a Companion is not .1

proof. The umma, according to him, is rcquircd to foHow the Qur'an and the Sunna.

In addition, as the Sharica, says al-Shawkani, only rcnders the Sunna of the Prophel

binding on the believers, and no other individual, whethcr a Companion or

otherwise, has been accorded a status similar to that of the Prophel. 66 This

conclusion, however, has been criticized by Abü Zahrah who belicves that citing a

Companion as an authoritative proof does not indicate that we create a rival to the

Prophet. On the contrary, the Companions were most diligent in observing the

Qur'an and the Sunna, and it is beeause of this and their c10seness to the Prophet thal

their fatwiis carry greater authority than that of other mujtailids. 67

• c) The third view maintains that the ruling of a Companion is a sound proof when il

contradicts, but not when it agrees with, qiyiIs. 68 This view, attribuled to Abü

I:Ianifah, when the ruling of a Companion conflicts with qiyiIs, it usuaHy does so for

a reason, and the fact that a Companion has given a ruling against it is an indicalion

of the weakness of that qiyiis. Therefore, the view of the Companion in this case is to

be preferred. On the other hand, if the opinion of a Companion agrees with qiylÏ.~, il

65 Ibn Qayyim, l'liim aJ-Muwaqqi'ïn, vol. 4, p. 123.

66 Shawkani, Irsiliid, p. 214.

67 MulJarnmad Abü Zahrah, U~ül al-Fiqil (Cairo: Dar al-Fikr al-cArabi, 1958),

•
p. 172.

68 Ibn Qayyim, l'liim al-Muwaqqi'ïn, vol. 4, p. 123.

 36

merely concurs with a proof on which the qiyas is founded in the first place. Thus,

the ruli ng of the Companion here is not a separate authority. 69

Ibn Qayyim was in favor of accepting the ra'y or fatwa of a Companion

wilhout reservation, because the latter had lived at the time of the Prophet when the

Qur~an and the SharïCa were revealed. The Companions were thus familiar with the

purpose and end of the Sharlca, and on the basis of which they, later, collectively or

individually, cxercised their opinions in issuing fatwiis. Moreover, most of them were

knowledgeable fuqaha', possessing an erudite understanding of the Sharlca, and its

main goal and end. Ibn Qayyim also considers the opinion of the Companions as the

praiseworthy opinion (al-ra'y aJ-mahmiid),70 and therefore, declares them lawful and

valid. LasLly, Ibn Qayyim maintained that the ra'y of the companions on the Sharlca,

Le. 'their fatwiis, is a sound source and proof of the Sharïca after the Qur~an and the

Sunna. He advances numerous evidences for his view and divides the fatwa of a

Companion into six categories:

Firstly, it may be based on what the Cornpanion might have heard from the Prophet.

The Companions, says Ibn Qayyim, knew more about the teachings of the Prophet

69 Kamali, Princip/es, p. 240.

70 Ibn Qayyim recognizes 4 types of praiseworthy opmlOn (aJ-ra'y a/-

ma1)mud), they are: 1. The ra'y of the Companions who were fuqahii' or
knowledgeable; 2. The m'y which explains and elaborates (yufassir) the na~~ in
order to reach the goal and end of the na~$ (wajh a/-diiiililt minhiiJ. and. therefore,
eases the derivation of the ruling from its source. The example of this ra'y, says Ibn
Qayyim, is the opinion of the Companions concerning the cau/ in inheritance, Le.
when more members of the family compete in the inheritance. Another example is the
explanation of ka/ii/ah; 3. The ra'y which is stated by a Companion in agreement with
other Companions and was accepted and fqllowed by those who came after them, Le.
{;mifc (consensûs) of the Companions; 4. Jjtihiid, Le. exercising one's opinion to derive
rulings from the Qur~an and the Sunna, or simply exercising onels opinion in the light
of the Qur'an and the Sunna in orderto seek the ruling which is close to, or fits, the
purpose of the Sharïca. This was the method practiced by the Companions when they
could not find any explicit directi.on in the Qur'an or the Sunna. See Ibn Qayyim. [c/ifm
a/-MuwaqqiCin, vol. 1. pp. 79-85.
 37

• than what has come down to us in the form of narmted IwditIJ. For example, Abü Bakr

al-Siddïq transmitted no more than one hundrcd Iwdïths l'rom the Prophet, even

though he was extremely well-versed in the Sunna and was closely associmed with the

Prophet, not only al'ter the Prophetie mission, but even beforc. Second/y. the tillll'1Ï of

a Companion may be based on what he or she might have helll'd frolll a fellow

Companion. Thirdly, it may be based on his own understanding of the Qur'ün in slleh

a way that the matter wouId not be obviolls to us, had the Companion not isslled a

fatwii on il. Fourthly, the Companion may have based his or her view on the collective
agreement of the Companions, although we have rcceived it thraugh only one of lhem.

Fifth/y, the fatwii of a Companion may be based on the learned opinion and geneml

knowledge that he aequired through long experience. And sixtilly, the flltlV1Î of a

Companion may be based on an understanding of his whieh is not a result of direct

observation, but of information he received indireetly, and which may be incorrect, in

• whieh case his fatw1Ï is not a praof and need not be followed by others. 71

Although Ibn Qayyim admits that there is a raom for the fatw1Ïs of a

Companion to be incorrect as the last categories of his classil1cations of the /iltw:Î

indicate, yet he still maintains the general view that the opinion or the flltW1Î of a

Companion is an acceptable ra'y and proof of the Sharï'a.

Ibn Qayyim accepts a fatwii of a Companion as long as it had not been

contested by other Companions. If, however, other Companions had disagreed with it,

Ibn Qayyim then proposes certain considerations, such as the determination of the

more knowledgeable Companion l'rom the other, the acceptance of the fatw1Ï issued

by the more knowledgeable party. He further asserts that if the disagrcement was

between two Companions who were on the same level, the one which is closer to the

• 242.
71 Ibn Qayyim, l'liim a1~Muwaqqi'ïn. 4, pp. 147-8; cf. Kamali, Princip/es, p.
 38

•
ml$$, i.e. the Qur'an and the Sunna will be given priority over the other. Not
surprisingJy, Ibn Qayyim gives priority ta the fatwiis of the rightJy guided Caliphs

over lhose of others due ta their superior knowledge. In case of disagreement among

the rightly guided Caliphs, the fatwiis of Abü Bakr and 'Umar arc given priority over

those of 'Uthman and 'Alï, and those of Abü Bakr over those of 'Umar. 72

Concerning the fatwiis of the Sueeessors (tiibi'iin), Ibn Qayyim affirms the

possibility of taking them into consideration. In his general remark, Ibn Qayyim

assert~ that the atJJiIr al-Salaflyyah, including the fatwiis of the Suceessors, are

adequate sources for issuing fatwiis. He even maintains that the fatwiis of the

Campanions together with those of the Successors are superior (awlii bi al-akhdhi

billlï) ta those of subsequent muftis, for their age is closer ta that of the Prophet, and

those whose period was closer to the Prophet, their fatwiis are closer ta the truth. This

status, however, aceording ta Ibn Qayyim, is considered collectively, not

• individually.73 ln addition, Ibn Qayyim asserts that the fatwiis of the Tabi'ün are Jess

authoritative than those of the Campanions, and although he briefly mentions them

together with those of the Campanions, as a source for dedueing fatwiis, yet he seems

ta neglect them by not considering them as valid proofs. This can be seen from Ibn

Qayyim's further discussion when he says,

If it is claimed that some of the evidence you mention for supporting the fatwiis
of Tübi'ün as a proof of the Shari'a, whenever no ~al;1übat or other Tübi'ün
disagreed with sueh fatwiis, the answer for this allegation is that, the Tübi'ün had
in fact spread ta far and wide areas, and their number has greatly increased while
concomitantly, their problems had also greatly increased in number, and that is
why it is hard ta predict whether there were or were not those who disagreçd
with a fatwii of a Tabi'ün.74

72 Ibn Qayyim, Icliim aJ-Muwaqqjcjn, vol. l, p. 31; vol. 4, p. 119.

•
73 Ibid., vol. 4, p. 118.

74 Ibid., pp. 155-6.

• From the above statement, it ean be inferred that Ibn Qayyim does not rcally

take the falwiis of the Tübi'ün as a valid proof of the Shari'a, beeause, he explieitly

says that il is difficult, if not impossible, to determine the presence of any

disagreement to a faewii of a Tübi'ün, since their number, the area where they livel!,

and the cases they deah with are inlinite.

c. Ibn Qayyim considers ijeihiid as the third source for a faew.ï. A muliï ean exereise

his own ijûhiid in solving a case, if he has made an effort ta seek the ruling l'rom Ihe

na$,ç, i.e. the Qur'ün and the Sunna, and l'rom the fatw.ïs of the Companions, bul could

nol find an adequate answer. In deriving a ruling, through exereising his own (ililuïd.

he must do his best ta reach a ruling as similar as possible 10 the IW~~ or the lil!w:ïs of

the Companions. This kind of ijtihiid is considered by Ibn Qayyim as the pruiseworthy

opinion, and is, therefore, valid and lawful. Moreover, he asserts that this is the way

that the Companions had adopted. 75 Ibn Qayyim's view concerning (itiluïd, ami

• espeeially qiyiis and its relation to his coneept of ma~laba, will be further discussed

when dealing with his coneept of Taghayyur 'll-Fatwii bi Taghayyur al-Azmiin wa al-

Abwiil in chapter three.

2. The Muftis and those who are responsible for lfuï'

A fatwii should be delivered by a mufti who has fulfilled ail the requirements

for the post of iftii'. One of the requirements that had been diseussed by Ibn Qayyim is

a thorough knowledge of the sources of the Sharicü and a sound understanding of the

problem raised 10 the mufti. Here, Ibn Qayyim follows the risiila of cU mal' whieh

clearly says, "have a goad understanding on the maller raised to you, ..." (fanlam idllii

udli ilayka). On the basis of these requirements, Ibn Qayyim, then, dec1ares that it is

• 75 Ibid., vol. l, p. 85.

 40

forbidden (lal)rim) lo conduct a falwii by a person who has neither knowledge and

nor understanding concerning the Sharïca.7 6

3; The Manner in Issuing a Faewa

Therc arc certain attitudes which a mufti should adopt w.hile issuing the fatwa.

a. [n responsc to a question raised by a mustafei concerning the legal status of a matter,

a mufti may adopt either of the two positions. First, if he is well-versed in the matter,

and the mustafti is in nccd of an immediate answer, the mufti in this case has an

obligation to answer the question immediate[y based on his knowledge, and he must

not delay his answer for such an urgent question. If however, the question concerns a

future case, he is not obliged ta answer it immediately. Second/y, if the mufti has no

knowledge on the matter, he should not give any fatwii on it, as he is even forbidden

to issue any fatwii without adequate knowledge of the subject. If he does, he is then

responsible for the bad result of his fatwa, and for the \Vrong doing of the mustaftï.77

Ibn Qayyim requires a mufu as weil as a qiiç/i to have sufficient knowledge and

proper understanding of the matter at hand and of the Sharïca. In addition. according to

Ibn Qayyim, a mufû must be trustworthy and loyal to the Sharïca and be truthful in

conveying it to the common people. Accordingly, a mufti is forbidden to issue a fatwa

and to daim it as it is derived from the na~$, while in faet it is not. 78

1:'

b. It is possible for a mufti to issue a fatwii different from what he had been asked, if

the answer leads to a more profitable solution for the mustafti. Ibn Qayyim here seems

76 Ibn Qayyim devotes a special discussion to this topic under the heading
"Tal,Jrim a/-IftiP bighairi ci/m," fol1owed by the discussion on ItTaq/ld." Sec Ibid., vol.
2, pp. 165-7; 168 259.
w

77 Ibid., vol. 4, p. 157.

e- 78 Ibid., pp. 173-6.

 41

• to have been influenced by the way the Qur'an provides an answer for a qllestil'n.

Among his arguments is the QlIr'anic verse, Le. Q. 2: 215. In this verse, the Qur'an

explains what kind of things to be spent (infiiq). Le. the good things. as a response to

the question raised here. In addition. the Qur'an also offers an explanation on the

destination (al-ma$rit) of the infiiq, since the destination is of great importance.

Moreover, says Ibn Qayyim. a mura cao provide more answers lImn the question

warrants if these answers can in any way provide the mu.çtafli with additional insight.

To support his view Ibn Qayyim quotes several prophetic traditions. one of which

occurred when the Prophet issued a ratlViI concerning the StatliS of sea water (/Iuï' al-

ba1)r) and whether it cao be used for ablution or not. In his answer. the Prophet

explained that the water is pure and the careass of the sea is lawful (/lUlVll al-Ialllîr

miI'uhu al-1)i1lu maytatuhu).79 The Prophet not only gave the legal status of the water

but. in addition, explained the Iegal status of its carcass as weil.

• c. Il behooves the muftï to mention the reason (dalïl) and the source of the ruling that

he stated in his ratwiI as far as it is possible. SO It is worth noting that Ibn Qayyim

foHows the method of the Prophet in delivering a ruling. An instance of the Prophet's

method, as used by Ibn Qayyim is : "Do not marry a woman and her aunt together; for

ifyou do, you will Cllt your brotherhoodl relationship among yourselves." The Prophet

not only describes marrying a woman together with her aunt as forbidden, but àlso

mentions the reason for the iHegality of this kind of marriage. Not surprisingly, a

mura, accoi'ding to Ibn Qayyim, should foHow and adopt the aforementioned way

while issuing fatwiIs. 81 If possible, he adds, it is also desirable for a muni to issue a

ratwiI by using the words of a na$$ (bi laf.zi al-na$$) for it contains, as Ibn Qayyim

79 Ibid., pp. 158-9.

•
80 Ibid., p. 161.

81 Ibid., pp. 162-3.

 42

•
believes, the rulings (al-Qukm), reason (dam), and sufficient explanation therein. Here

Ibn Qayyim further demonstrates his commitment in adopting the method of the

Companions while dealing wilh iftii', as they had always adhered to the na$$.82

d. A mufti should issue a facwii based on his own ijcihiid and he believes that the

ruling which he derives and concludes from its sources, is true, even though it might

differ from, or even contradict the opinion of his own madhhab. This can occur when

he realizes Ihat the sources and the bases he used as weil as his conclusion are more

feasible than those of his madhhab. In this situation, he should take the decision he

reaches, otherwise he will be considered, in the view of Ibn Qayyim, as a betrayer of

God, the Prophel, and even the musCaRI (khii'inan liJJiïhi wa lirasülihi wa li sii'ilihi).83

With the affirmation of the attitude adopted by a mufti above, Ibn Qayyim

expresses his own views towards the madhhabs. In fact, he proves that he was not

•
.'
fanatic to any madhhab, but rather that he preferred to refer the Shari'a to its sources,

Le. the Qur'an, the Sunna and the facwiis of the Companions.

e. It is nr' allowed to issue a faCwii ba,ed on caq/ïd, for a muqallid does not qualify

for issuing faCwiis. This is the viewpoint, says Ibn Qayyim, of ail the early pious

scholars ('ulamii' al-salal) and those who came.\lfter them such as Shafi'i and A~mad

ibn J:Ianbal. In addition, Ibn Qayyim cites Abü Mu~arnmad al-Juwayni and Abü 'Amr

ibn al-$alii~ who affirm that a muqaJlid is not a1lowed to issue a fatwâ. Ibn Qayyim

asserts that a mufti should tell people the rulings which he derives from the na$$, o r ' ·

l'rom his understanding of the doctrine and the sources of the school (madhhab) he is

affiliated·to. However, if he has neither understanding of the na$$, nor of any

\\

•
82 Ibid., p. 170.

83 Ibid., p. 177.
•
madhhab, he will not be considered a mufti. 54 ln a further remark, Ibn Qayyim t1ccms

the persan not qualified for ift:ï' but persists in issuing 1:llw:Is ta be sinflll ami

responsible for the olltcome of his fàtw:Is.5S

f. Besides having sufficient knowledgc and skill in condlleting iJilI'. a Illuliï shollitl

also have a good intention (niyyat); for the intention, in the opinion of Ibn Qayyim,

can cause an act, including a fatwlI. ta be either valid or inv'llid. This is becalise the

intention is the basis for an act. and the latter will follow the former in its statlls,

lawful or IInlawful. 86

g. A mufti must not use a 1)ila in issuing a fatwlI; if he does, he will he considered ta

have acted unlawfully (fa'in catabba<a diJ1IIika. Le. ~lila. fasaqa), and it will he

forhidden for a mustafti ta ask for a fatwiI l'rom such a mufti. 57

•
h. A mufti should take the <urf inta consideration while issuing a t:llwlI. He is not

allowed ta issue a fatwiI on an iqriir. aymiIn, and wa$iyya and other transactions which
,\
relate ta a statement (mimmiI yaca<alJaq bi al-Ial,?i) without taking the local <urf .md

the <urf of the speaker into consideration. He must do sa in arder ta understand the

meaning of the statement on the basis of which he can then issue a fatw:ï. This is

hecause different <urf might lead ta different meanings of a single statement (al-Iaf?w).

84 Ibid., pp. 195-6.

85 Ibid., p. 217.

86 Ibid., p. 199. Ibn Qayyim bestows special attention ta the important status
and infiuentiai function of niyyat in its relation ta an activity, UJ:ld he therefore devotes
a long discussion of this matter under the subtitle "af-rJbrah fi al-Shari<ah bi al-
MaqiI$id wa a/-Niyyat", see .Ibid.• vol. 3, pp. 107- 170.

87 Ibid., vol. 4,' p. 222. Although Ibn Qayyim concedes certain 1)iyal ta be

•
lawful, he was the one who forcefully condemned the use of 1)iyal. He therefore deals
extensively with the refutation of fatwiIs on 1)iyal. His views on the fatwiI on ~liyal
will be discussed in the next chapter.
 44

• If he does not do this, he will go astray and cause people, Le. the musruftï, ta go astray

loo (fu nli/tii lam yu1"ul dhiiliku c;ful1u wuuc;ful1u).88

i. A mulliis forbidden from issuing a futwii which might make a lawfulthing unlawful

or vice versa. An example for this kind of adverse futwiis, as Ibn Qayyim affirms, is

f1ltwiis on biyul. 89

j. A mura ul-munwsib (affiliated ta a certain schon l ) is required ta issue a fatwii

which is preponderant amcng the opinion of the existing schools and closer ta the

Qur'un and the Sunna. He has no other choice but ta adopl this preponderant opinion.

ln olher words, a mufti ul-muntusib is required ta take the opinion and argumentation

of any other madhhab if it is demonstrably stronger than that of his own madhhab. On

the other hand, it is forbidden for him ta issue a fatwii which contradicts the na$$ even

if it is recognized by his madhhab. 90

• k. It is be fitting for a mufti to consult the more knowledgeable scholars, whose

knowledge and religion can aid him, before issuing a fatwii; for consultation is

strongly urged by the, Shari'a. Ir.: supporting this opinion, Ibn Qayyim takes the
-
Qur'anic verses, such as Q. 3: 159, n ... and consult with them upon the conduct of

affairs..... n and the practice of the Companions, such as 'Umar, who used ta consult

other Companions before coming to a decision as a case in point,91

\
Il,
!.'
.1

88 Ibid., p. 228..
=
- 89 . .
IbId., pp. 229-30.

•
90 Ibid., pp. 236-9. .---'

91 Ibid., p. 256.
• l. It is allowed or even recommended for a mufti to do ijtih<Td if it is neccssary. when

he can not find the ruling in the na~~. in the fmwiïs of the Companions. in the opinion

of the existing madhhab or from other more knowledgeable scholars. 92

From the above discussion on Ibn Qayyim's ideas conccrning the /lltw.ï. it ean

be seen that the fatwiI. in his view, has a considerably important role in the

establishment and finding of the rulings since the early period of Islam. The institution

of the fatwiI was first introduced by the Prophet Mul:tammad since he acted as a mu/iï

in informing the rulings. inspired to him by God. to mankind, or setlling Ihe disputes

which occ:urred among the people in Ihe communily. According 10 Ibn Qayyim. a

mufti, in order his fatwiIs to be lawful. should fulfill certain requirements. such as

having sufficient knowledge of the Shari'a and ils sources. Ihe abilily to conducl

ijtihiId, and adopling cerlain manners which are appropriale in issuing a flltw1Ï. Aparl

,..

•
from his insistence on the use of Ihe fatwiI1 of Ihe Cornpanions, in addilion 10 Ihe

na~~, as the sources for a fatwiI. Ibn Qayyim seems 10 generally follow his

predeeessors in the requirements for issuing a flltlviI. If a mufti fails in fullilling such

requirements, his fatwiIs could be void and unlawful. Among the unlawful falw.ïs, in

the view of Ibn Qayyim, are those on 1)iyaJ. A discussion of his views concerning the

fatwiIs on 1)iyal will be taken up in the subsequent chapter.

/.'
I~

92 Ibid., p. 265-6.

'-:::
•
CHAPTERTWO

FATWAS ON ,ifIYAL
Having dealt with Ibn Qayyim's concept of the fatwfï and the procedure by

which it is issued, this chapter will embark upon an elaboration of his thought on the

fatwfïs on iJiyal, particularly of his refutation of the latter.

'l"he concept of iJiyal (sing. i)ïla = stratagems; legal fictions) was generally

condemned by the J:lanbalite school, and Ibn Taymiyya was among its most hostile

opponents.\ However, his student, Ibn Qayyim, according to Kamali, is the first jurist

of high stature in the history of Islam, whose most systematic exposition of the

problem of iJiya/, surpassed ail earlier sporadic efforts of its kind. 2

In addition, Ibn Qayyim makes a distinction between those iJiyal which are

lawful, Le. by which a lawful end is to be achieved by lawful means, and those which

arc invalid and ·lhereforc forbidden.3 Ibn Qayyim in fact goes further, and elaborates

• upon the cases in which the iJiyal have to be employed in order to ensure and maintain

the ma~/aiJa.4

In discussing the iJiyal, Ibrt Qayyim begins by characterizing them as generally

unlawful. 5 The employment of iJiyal, according to him, circumvents the principle of

sadd al-dharJ>i m(to block the ways possibly l~?ding to undesircd consequences). The

1 NJ. Coulson, A History of lslamic Law (Edinburgh: University Press,

1991), p.I41.

2 A.H. Kamali, "Kitiib al-,ifiyal In The Political Philosophy of the Ummah"

'.' Iqbal Review 7: 3 (1966), p. 61.

3 Schacht, Introduction to Islamic Law, p. 81.

4 Ibn Qayyim, lcllüh al-MuwaqqiCjn, vol. 3, pp. 349-415 and vol. 4, pp. 3-47;
see also Sharf aI-Din, Ibn Qayyim al-Jawziyya, p.109.

5 Ibn Qayyim, I cliim al-MuwaqqiCjn, vol. 3, p. 346. i:

, 6. Following 'Al)mad ibn .l;Ianbal, the founder of the .l;Ianbalï school, Ibn
Qayyim takes sadd al-dharli>ic as the basis of hi;'-:Iegal theory. Ibn Qayyim even goes
 47

• 1)iyal create ways for doing what the Lawgiver (SlliIri'J seeks to prevent us l'rom.?
Despite his general criticism of 1)iyal, Ibn Qayyim classities them into the unlawful

and the lawful. In accepting sorne 1)iyal as lawful. his basic argument and re'lson is

ma$la1)a. The employment of 1)iyal serves here as a permissible device 10 secure what

is true or right (al-1)aqq) but is not recognized in the n,J$$ (Le. the Qur'an and
Sunna).8

Before continuing with the discussion of Ibn Qayyim's point or view on the

fatwiïs on 1)iyaJ, especially his arguments on rejecting certain biyal white acccpling
others, the ideas and concepts of other scholars should, however, be brielly surveyed

before proceeding to Ibn Qayyim's view on the matter; for Muslim jurists have

different attitudes towards the 1)iyaJ. The ijanafis, for instance, who produced the tirst

special works on 1)iyal, are in favor of the 1)iyal, white others, such as the ijanbalis

and the Miililds, generally condernn the employment of 1)iyal.9

• A. l;liyal in Islamic Jurisprudence

l;fiyal lO as legal devices, which form an integral part of Islamic law as applied
in practice, can be described as the use of legal means for extra-legal ends; ends thm

further, and is believed to have given more attention to sadd al-dllariï'icthan any other
Muslim scholar. SeeWailbah aI-Zuhayli, U$ül al-Fiqll al-Isliïmï, 2 vols. (Damascus:
Dar aI-Fikr, 1986), vol. 2, pp. 891, 901; see also Sharf al-Din, Ibn Qayyim al-
Jawziyya, p. 279.

7 Ibn Qayyim, Icliïm al-MuwaqqiCïn, vol. 3, p. 171.

8 Ibid. p. 349.

9 Joseph Schacht, "ijiyal" ,in The Encyclopaedia of Islam, vol. III, New
Edition, eds. B. Lewis, V.L. Menage, Ch. Pellat, and J. Sehaeht (Leiden: EJ. Brill,
1971), pp. 512-513; Coulson, A History of/slamie Law, pp. 140-1.

10 l;fiyaJ is the plural of 1)ïla, '?Ihich means artifice, device, expedient,

stratagem, a means of evading athing, or of effecting an object. See Schacht, "ijiyal,"

•
p. 510. See also Aziz aI-Azmeh, "Islamic Legal TheOl.y and The Appropriation of
Reality," Islamie Law: Social and Historieal Contexts, ed. Aziz al-Azmeh (London:
Routledge, 1988), p. 259. AI-Azmeh bases his general definition of 1)ïla, as the general
 48

•
could not, whether they themselves were legal or illegal, be aehieved directly with the

means provided by the Sharï'a. lI This legal device enables people who would

otherwise, under the pressure of cireumstances, have had ta aet against the provisions

of the saered Law, to arrive at the desired rcsult while aetually conforming to the letter

of the law. For instance, the Qur'an prohibits usury (interest), and this religious

prohibition was strong enough to make popular opinion unwilling to transgress it

openly and directly, while at the same time, there was an imperative demand for the

giving and taking of interest in commerciallife. In order to satisfy this need, and at the

same lime to observe the letter of the religious prohibition, a number of devices were

developed. One example of this was the giving of real property as a security for a debt

and allowing the creditor ta use it, so that its use represented the interest. 12 lfiyal as

the tricks invented by legal ingenuity, according to Goldziher, are of advantage in

certain situations. Not surprisingly, these legal fictions, which often serve to ease the

• conscience where vows are involved, conslitute an integral part of tiqh. 13

Schaeht affirms that the /;Iiyal are mostly used in the law of contracts and

obligations,14 which is situated in the middle between the law of family, inheritance,

term for "a means;" thus making it the arehetype of ail judgments, and being the
means to an end, on Sarakhsi's expositions of the practical use of /;Iiyal, w!lieh implies,
in general, the aehievement of an end. Cf. Sarakhsï, "Min Kitiib al-Mabsü!," ed. Joseph
Schaeht and published together with Shaybanï's Kitâb al-Makhiirijti al-lfiyal (Leipzig,
n.p, 1930), p. 88.'

Il Schacht, "I;Iiyal," p. 5 II; Id., Introducûon 10 Islamic Law, p. 78; Id., "The
Schools of Law and Later Development of Jurisprudence," Law in the Middle East,
ed. Majid Khadduri and Herbert J. Liebesny (Washington D.C.: The Middle East
Institute, 1955), p. 78.

12 Id., An Introducûon to Islamic Law, pp. 78-9; Id., "The Sehools of Law,"
p.78.

13 Ignaz Goldziher, Introducûon to Islamic Theology and Law. Translated by

Andras and Ruth Hamori (Princeton: University Press, 1981), p. 65.

• 14 Udovitch gives a picture of how the need for /;Iiyal emerged in the domain
of business and commercial aetivities as follows: In most areas of business law, the
 49

• and pious endowments (lVaqt) on one side. and criminal. fiscal. and constitulionallaw

on the other. On the first branches. the Sharï'a had the firmcst hold: whi. .1 the last.

it had very little, if any. influence. Thc law of contr:.:cts and obligutions. in facto
according to Schacht. was ruled by a customary law which respccled the main

principles and institutions of the Sharï'u. but simultaneollsly showed a greuter

flexibility and adaptability. Il was brought into agreemcnt with the lheory of lhe

Sharïca by the Oiyal. 15 A further feature of customary commercial law was ils reliance

on written documents which often formed an essenlial clement of Oiyal. The more

complicated oiyal often consisted of several transactions belween lhe partics

concemed, each of which was perfectly legal in itself, and the combined effeet of

which produced the desired reslill. Each transaction was recorded and atlesled to in a

written document as a matter of course. 16

The oiyal as legal devices, therefore. also represented a modus vivendi

• between theory and practice: the maximum lhat custom couId concede. and lhe

minimum that the theory had to demand. The recognition of the validity of the {Jiyal

by the theory oflslamic law, was facilitated by the heleronomous and irrational side of

the Sharïca, which called for the observance of the letter rather than of the spiri1, and

fiqll allowed considerable leeway to traders and investors and, on the whole, probably
provided adequate legal instruments for the commercial needs of the carly Islamie
period. Islamic law did, however, place sorne serious restriclions and limilations on
the freedom of commercial aetivity. The restrictions in the area of trade and exchange,
as weil as in other areas of Iife, placed certain aspects of practice on an inevitable
collision course with legal theory. This situation gave rise to a special braneh of legal
writings, the OiyaJ literature, in whieh the lawyers attempted to narrow down the area
in which actions would be in violation of the law by making them formally conform to
the law while in reality circumventing il. Thus, for example, a number of devices were
developed to circumvent the taking or giving of interest, and others to permit capital in
the form of commodities to serve as investments in partnership and commenda
contracts. See Abraham L. Udovitch, Partnership and Profit in Medieval Islam
(Princeton: Princeton University Press, 1970), pp. 10-11.

•
 50

•
by the principle that the law, and the qiü;li in his judgment, arc concerned with the

out ward aspect of lhings only and not wilh questions of conscience and hidden

motives. 17

Several jurists, moslly of the J:Ianafi school, had devoted themselves to the

writing and elaboration of the /,liya/. There arc three exlant /,liya/ works, two of which

arc of inlerest in conneclion with commercial practice. They are: the work of

Shaybanï, Kitiib a/-Mak1Jiirij fi a/-lfiya/,18 which dates from the end of the second

Islamic century, and thal of al-Kha~~af, Kitiib a/-lfiya/ wa a/-Makhiirij,19 from the

third or fourlh Islamic century,20 and lhe lhird extant /,liyaJ work is lhat of the Shafi'ï

al-Qazwïnï, Kitiib a/-l;liyaJ fi a/-Fiqh. 21 Sarakhsï, anolher prominent I~anafi scholar,

also deals wilh lhe /,liya/ in a chapter of his a/-Mabsü{.22

The origins of /,liya/, Iike those of shurur, can be traced to Abü J:Ianïfa, who

• was purported to have been a great master in devising them, and 10 Abü Yüsuf, who is

reporled to have composed a work on /,liya/.23

17 Id., Introduction to Is/amic Law, p. 80; see also p. 123 in whieh Schacht
affirms lhat Iegal devices (/,liyaJ) or evasions are considered valid before the qii(1I, if
they conform to the letter of the law, regardless of underlying motives.

18 ed. Joseph Schacht (Leipzig: n. p., 1930).

19 ed. Joseph Schllcht (Hlinover: n. p., 1923).

20 Udovilch, "Partnership and Profit," p. 11. Concerning the date of the work
ofal-Kha~~âf, cf. Schaeht, "The Schools of Law," p. 79.

21 ed. Joseph Schacht (Hannover: Orient-Buchhandlung Heiltz Lafaire, 1924).

22 This special chapler on /,liya/ was edited by Joseph Schacht and published
logether with that of Shaybânï (Leipzig: n. p., 1930).

•
23 Abü Yüsufs treatise on /,liyaJ has not survived; however, there is a
manuscript in the Egyptian National Library identical to Shaybânï's book on /,liyaJ, but
attributed to Abü YÜsuf. See Udovitch, Partnership and Profit, p. 12, n.42.
"
 51

•
Taken as a whole. the biyu/ literature represents the pressure points of daily

practice on legal theory and can serve in the field of commercial law especially. as a

valuable guide to the practices current in the medieval Muslim worlll.~4 The lli)'.11 in

fact was a route by which commercial practiee WolS absorbed into 1;lanal'i law. Il1lleed.

certain restrictions in the areas of trade and exehange. based on analogy or other

formallegal consideration, and which could not be resolved by the exercise of jurislie

preference, plaeed some aspects o~ practice on an inevitable collision course with legal

theory. In partnership and commendu25 law, cases whieh Udoviteh is particularly

concerned with, one of the most burdensome restrictions imposed by Islamie law was

the exclusion of goods and merehandise as an acceptable l'mm of investment. 1:lanal'i

lawyers were quick to eonstruct a fairly simple but effective legal device to cireumvenl

this prohibition, one of such devices is already found in Shaybani's treatise on biYII/,26

and it was subsequently incorporated into the very body of the legal codes and is

• usually presented immediately following the prohibitionP

24 Udovitch, PlI1'tnership and Profit, p. 12.

25 Commenda is an arrangement in which one party invests capital and thc

other party trades with it on the understanding that they share the profits in an agrccd-
upon ratio, and that any loss resulting l'rom normal trading activity is bornc by thc
investing party. See Udovitch, PlII'lnership and Profit, p. 273.

26 It is said, "What is your opinion of two men wishing to form a partncrship

with their possessions, one of whom has merchandise worth fi ve thollsand dirhams
and the other merchandise worth one thousand dirhams?" He said, "P1ftncrship in
goods is not permissible." 1 said, "What type of biya/ can they cmploy which would
make them partners in the merchandise they possess?" Hcsaid, "Let the owner of thc
merchandise worth five. thousand dirhams purchase five-sixths of his collcaguc's
merchandise with one-sixth of his own. If they do this, they will bc partners in
accordance with their shares in the investment; the one whose merchandisc is worth
one thousand dirhams becomes a one-sixth owner of the combined investment, and his
colleague becomes an owner of five-sixths of il." See Shaybani, Kitiib aJ-Makhiirij fi
aJ-I;liyaJ, p. 58; cf. Kha~~lii', Kitiib aJ-I;liyaJ wa a/-Makhiirij, p. 67.

• 27 Udovitch, PlII'lnership an(iPr~flc; p.252.

 52

•
The J:lanalïle school, which distinguishcd itsclf in the investigation of such

legal devices,28 in general, accepts and is in favor of employing !Ji)'al since the former

docs not take the purpose or ni)'ya into consideration while judging the validity of an

act. The Shülï'ïs,29 the Mülikïs, and the J:lanbalïs, however, consider the purpose as the

basis for judging an act. They therefore reject the employment of !Jiya/. The laller base

lheir viewpoint concerning the role of the niyya, on several legal principles (legal

maxims), namely: aI-'umüru bi maqii,çidihii (mallers are based on their purposesl

intentions), aI-'ibiirah fi aI-'uqüd Ji al-maqii~id wal ma'iinï (consideration of each

transaction is based on ils intention and its meaningl goal), al-tashrï' mabniyyun 'alii

ma~iîIib maq~üdah (legislation is based on an intended purposelma$Ia{m). These le ;al

maxims (aI-qawii'id aI-u$üIiyyah) require the employment of another principle of

Islamic legal theory, namely, sadd al-dharii'i' (blocking the means to evil or that which

negates the ma$Ia!Ja).30

• The Müliki al-Shülibi, who also discusses the question of biyal in his aI-

Muwiifaqiit, defines biyal as: "using certain means in order to escape an obligation or
to make some forbidden thing permissible, this use of means causes an obligatory

thing to become apparently non-obligatory, and a forbidden thing apparently to

become permissible. "31 From this definition, the biyal work on two premises:

28 Goldziher, Introduction to Islamic Theology and Law, p. 65.

29 Later Shafi'i scholars, however, radically diverging from the views of the
founder of their school, also recognized !Jiya/. See Coulson, A History of Islamic Law,
p.14I.

30 Wahbah al-Zuhayli, U$üI al-Fiqh al-IsIiimï, vol. 2, p. 913.

, ,

•
31 AbÜ Isl)iiq a1-Shülibi, aI-Muwiifaqiit fi U$ül al-Sllarï'ah, 4 vols. (Beirut: Dar '...'
al..Kutub al-'I1miyyah, 1991), vol. 2, p. 287; cf. M. Khalid Masud, Islamic Legal
Philosophy (Islamabad: Islamic Research Institute, 1977), p. 284.
 53

• 1- They strive to transfer the value of one legal aet to another legal aet

externally.

2- They disregard the inner meaning of the aets. Meanings. on the hasis of

which. the acts were originally i!1tended by the SMri' (the Lawgiver). and hy doing so.

the value of these acts is reduced to becoming means to certain other aets. whereas

they were meantto be their end. 32

In another part of his aI-Muwiifilqiit. Shâ!ibi affirms tha! the word !liYII/ ean

mean: "performing a lawful aet in order to transgress a forbidden act or escape l'rom

an obligatory one."33 For instance. someone performs a hiba (a gift) of his property hy

the time of IJawI zakiit in order to escape from the obligatory zlikiit. Performing the

hiba itself is permissible, its purpose in this case, however. is prohibited for its:illlse is

to ignore the duty of performing zakiit. 34 This kind of {li/II is considered invalid

• , because its purpose is to evade an obligatory aet. Therefore, the purpose or intention

here is the basis for the IJiyaI being forbidden. 35 The l;Ianafis, however, recognize such

IJiyaI as long as their purpose is not explicitly stated. If its purpose --thatis, to escape

32 Al-Shâ!ibi, Ibid., cf. Mas'üd, Ibid.

33 AI-Shâ!ibi, aI-Muwiifaqiit, vol. 4, p. 145.

34 Ibid.

35 Al-Shâ!ibi was arnong the scholars who placed considerable weight on the
inner part, i.e. intention of an aet in judging ils lawfulness or unlawfulness, and
therefore, he rejected the employment of IJiyaI, though he also admitted certain {JiyaI
to be lawful. His view is based on his way in interpreting the injunetions (nal'I'J whieh
is not limited to the :r:iihir meaning, but also to the biitin meaning by which the real
intent, maq$üd of the Law-giver can be reached. Based on, such interpretative-grounds
that Shlit.ibi spums the IJiyal which are intended to circunîvent the divinely prescribed
law. Only those who have not perfectly understood the intent of the Law-giver,
according to him, try to resort to the manipulation of the law by means of such hiYill,

•
see Wael B. Hallaq, "The Primacy of the Qur'lin in Sha!ibi's Legal Theory," in"Isiamic
Studies Presented to Charles J. Adams, ed. by Wael B. Hallaq and Donald P. Little
(Leiden: EJ. Brill, 1991), pp. 73-4.
 54

•
from the commanded acts or the performance of prohibited ones -- is stated explicitly,

the l:Ianafïs will come to disregard the 1)iyaJ.36

The Shafi'i Abü l:Iatim al-Qazwini, who had a special treatise on 1)iyaJ,

however, recognizes three types of 1)iyaJ, they are: the prohibited, the reprehensible,

and the pert"'issible 1)iyaJ. Based on this division, al-Qazwini then asserts that, it is the

dutY of every Muslim jurist (faqih) to remind the community not to commit the

forbidden 1)iyaJ, to be aware of the reprehensible ones, and to recognize those which

are permissible. 37 AI-Qazwini, in his book, deals with these three types of 1)iyal by

giving examples of each.3 8

B. Ibn Qayyim and l;liyal

Ibn Qayyim defines the 1)ila (pl. 1)iyal) as a sp'lcific action or transaction used

to transform one condition into another, so as to be recognized in the curf (custom),

• "

and thus able to achieve a purpose. These purposes can be either

'..
lawful or unlawful,

but as far as Islamic law is concemed, according to Ibn Qayyim, the purpose for the

employment of 1)iyal is mostly the circumvention of the forbidden. This kind of action

will be possible only for those who have legal ingenuity.39

Ibn Qayyim divides 1)iyal into two general divisions, they are:

-------~,.

36 AI-Shalibi, al-Muwiifaqiit, vol. 4, p. 146.

,37 Abü l;Iatim al-Qazwinï, Kitiib al-lfiyal fi al-Fiqh, p. 2.

38 Qazwïnï provides approximately fourteen examples of the forbidden 1)iyal

(pp. 2-5), four of the reprehensible ones (pp. 5-6), and about eighty three examples of
the pemlissible 1)iyal (pp. 6-28). In addition, he also provides several other examples
of 1)iyal which could be judged as either of these three categories depending on the
conditions or purpose of their usage (pp. 28-51).

39 Ibn Qayyim, ]Cliim al-Muwaqqi'in, vol. 3, pp. 252-3.

 55

• 1. Empl(\ying secret means or manipulating lawful means to achieve illegal or

prohibited purposes, or to cause the violation of another's rights. 4ll This kind of biYlI1

assumes three different forms. In the first l'orin. both the means and purposes are

illegal (forbidden). For instance, a seller, being a liaI', tells the buyer that the goods do

not belong to him with the purpose of canceling the sale. In the second case, the ll1eans

are permissible but not hwful, while the purposes are illegal; and in the third case, the

means are lawful but the purposes are unlawful. 41

2. The employment of certain means to achieve certain rights or the truth, and

to avoid unjust deeds. These biyal are divided into three categories. They are: (i) The

means are illegal while the purposes are legal. For instance, someone who uses two

l'aise witnesses in order to assert his right against those who rejeet it, or, a wife who

tries to get help l'rom two l'aise witnesses in order to prove her unrevocable divorce by

her husband, when the husband denies his statement of repudiation. This kind of (IiYlll

• is considered by Ibn Qayyim as prohibited although their purpose is legal. (ii) Both the

means and the purposes are lawful. Cases in point are sale, rent, ll1-musiiqiit, 11/-

muziiraeah, al-wakiilall, and ail transactions which are aimed at achieving llW$/1I(w,md

avoiding mafsada.42 (iH) The means are permissible but not purposely proposed for the

intended ends which are legal, rather for other purposes.43 Ibn Qayyim recognizes this
C··

40 Ibid., p. 340.
~~
41 Ibid., pp. 346-7.

42 This kind of 1)iyal is generally accepted and practiced in Islam, and is even
stated and legitimized in Islam since the needs of society require their practice. They
therefore are not considered as the 1)iyal disputed upon among the seholars, nor are
they even identified as 1)iyal )n general.

43 Ibn Qayyim, Ielam al-Muwaqqi'ïn, vol. 3 pp. 347-9. Abü Zahral1 tries to
simplify Ibn Qayyim's division of 1)iyal into three divisions. .They are: (i)

•
manipulating lawful means to achieve forbidden purposes, such as nikiil) al-mu1)allil;
(H) employing lawful means to achieve lawful purposes, such as al-baye, al-ijiirall,
etc.; (Hi) employing permissible means to pursue rights and assure the truth, and avoid
 56

kind of 1}iyaJ as lawful though they are not statcd in the na$$ aJ-sharCi, and neither has

qiyfJs and ijmli c or fatwli aJ-$a~liiba cxpresscd an opinion on them.

Bascd on these divisions, Ibn Qayyim he1d two different attitudes towards the

biyal: rejccting sorne of them whose purpose or means are unlawful, and accepting

those which are not contradietory ta the na$$ or the end of tashrïC, although the means

thcmsclves had not been previously recognized in the na$$. In arder to know what

makes Ibn Qayyim hold two different attitudes towards the /;liyal, it is neeessary to

discuss his arguments for rejecting certain /;liyal while aceepting others.

J. Ibn Qayyim' s Rejection of /:liyal

The uses of J;iyaJ, in general, are intended ta manipulate a legal means in arder

ta achieve an invalid purpose. A case in point, is a persan performing a marriuge

(nikii/J) in arder to allow the previous husband of a woman ta recover an unrevocable

(bii'in) divorce of his wife. The husband, aceording to the Shariea, is not allowed ta

rcmarry his divorced wife, until the wife gets married ta another husband, and the

latter then divorces her. If the latter's marriage is performed only to provide a way for

the former husband to remarry his wife, this marriage is considered unlawful
, . and is
thcrcfore forbidden, because the aet of marriage (nikii/J), whieh is basieal!y permissible

~md even recommended in Islam, is used here ta lead to a forbidden aet which is the

remarriage of the divoreed wife after the third repudiation.

Ibn Qayyim, in refuting thi,s kind of 1)iyal gives several arguments based on the

prineiples of his legal thought. They are:

u. l;liyal Contradictory ta The Na$$.

According ta Ibn Quyyim, the fatwiis on 1)iyal are frequently contradietory ta

the na~$; and in his rejeetion of 1)iyallbn Qayyim frequently quotes the na$$, mostly
, ,

evile and illegal aets while the means themselves have not been proposed ta the
inter~dcd purposes. See Mul)ammad Abü Zahrah, Abu /:lanlfah: Hayiituhu wa cA{)ruhu,
AriPuhlf._ wà .Fiqhuhu (Cairo: Diir'ai:'Fikri al-cArabi, n.d). pp. 320-1.
 57

•
the prophetie traditions, as his arguments. For instance, the prophetie tradition

declaring that, God eurses the mu{lalliJ and lhe one who gets benelït l'rom il. This

tradition, says Ibn Qayyim, explicitly disproves and eontradiels wh:ll the :luthor of

{Iiyal does concerning the nikii{l w{l1ïl. 44 Another prophetie tradition quoted by Ibn
Qayyim states that it is forbidden to join two separated properties :lnd lo separale :1

united one, with the purpose of evading the oblig'ltion of zukiil. What the :lulhor of

{Iiyal does, when separating his uniled properlies and joining his separated properlies

in order to evade the obligatory zakiit, or to pay less than what he is supposed 10, is,

aecording to Ibn Qayyim, contradictory to this {wdïtll. 4s A case in point is a person

selling part of a ni$iib of his property before the time for zuk;ït is duc, thus freeillg

himself l'rom the obligatory zakiit, since his property is less than a lli.~iÏb; 01' tWli

persons originally sharing forty sheep, which is the ni$.ïb for sheep, und then

separating their shares before the time for zakiit is due, thus muking each person the

• owner of twenty sheep. In this case, eueh of them would be l'l'cc from the obligation of

zakiit since the umount separately owned by each individual is less than the lIi$iib.

b. /:liyal Contradietory to the Fatwiis of the Companions.

Another basis for Ibn Qayyim's disapprovalof the fatwlïs on {1iyul, is the

faMas of the Companions. Ibn Qayyim asserts that most of the fatwiis on {liyal arc
contrudictory with, and even ignore, the fatwas of the Compunions. Ibn Quyyim

reports that 'Umar ibn al-Khallab once delivered a slJeech suying that he will punish

both the mu{lalJiJ and mu{lallal lah with stoning, and other Companions were reporled

to be in agreement with 'Umar's decision. In addition, the Companions, such us

'Uthman ibn 'Affan, 'Ali ibn AbI TaIib, 'Abd Allah Ibn 'Abbas, and 'Abd Allah Ibn

44 Ibn Qayyim, l'liim al-Muwaqqi'ïn, vol. 3, pp. 172-3.

• 45 Ibid., p. 184.
 58

• 'Umar were reported to have issued a facwa declaring that nika!l al-caNiJ does not

COl1stitute a suflicient lawfull legal means for allowing a \Vife to remarry an ex-

husband who had previously divorced her a ba'in divorce. 46 Another example

employed by Ibn Qayyim is the facwa of the Companions eondemning che sale of Cïna

(Jouble sale) and considering such a sale forbidden and therefore unlawful.47

c. Sadd al-DllUra'i' (Blocking the Means).

Ibn Qayyim expIieitly states that admitting the employment of 1)iyal is

contradictory to Sadd al-dhara'i'; as the Lawgiver (God) blocks the way leading to the

maflïsid (destruction, evil) while the author of 1)iyal opens the way to their
achievement.48 Sadd al-dhara'i', therefore, is the main argument for Ibn Qayyim in

rejecting biyal, despite the other arguments provided. Ibn Qayyim here follows his

teacher Ibn Taymiyya, since the latter also based his rejection of the employment of

• !liyal on sadd al-dhara'i,.49

Dharï'ah (pl. dhara'i') is a word synonymous with wasiJah, which signifies the
meuns of obtaining u certain end; while sadd literally means "blocking". Sadd al-

dhllra'i' thus implies blocking the means to an~xpected end which is likely to

materialize if the means towards it are not obstructed. Blocking the means must

necessarily be understood to imply blocking the means to evil, not to something

good. 50

46 Ibid., p. 185.

47 Ibid., see also pp. 178-1~J-

48 Ibn Qayyim, l'liim al-MuwiigCli'ïn, vol. 3, p. 171.

)', /~

49 Mul}ammad Abü Zahrah, Ibn Taim.1iyya: If~ffiiuhu':Va 'A~ruhu, Ara'uhu wa

•
Fiqhuhu (Cairo: Dar a1-Fikr a1- cArabi, 1958), 'p~Q'i:

50 Kamali, PrincipIes of IsIamic Jurisprudence, p. 310.

 59

A typical case for the application of Sildd ilf-dhiJriPi" wOllld arise whcn a

lawful meuns is expected to Iead to an unlawfuI rcsuh. or when a lawful means which

normally leads to a lawfuI result is uscd to procure an unlawfuI end. If both the mc'lIls

and the end are directed towards beneficcncc und nlil~lil~la. but arc not cxplicitly

regulated by a cIear injunction (na$$), the malter will fall under the tlllthority of qiy'-ïs.

ma$lai)a, or istii)siin, etc. Ukewisc, if both the mcans and the end arc dircctcd towards
evil, the issue will be governed by the gcneraI rules of the Shuriea. and a rccollrsc to

sadd al-dharJ'i r wouId seem out of place. The application of s;ldd <l/-d1J:lriPi".

therefore, is required where there is a discrepancy bctwccll the mcans und the end on

the good-neutral-evii scale of values. 51 The concept of sadd n/-dhariPi r has the purposc

of preventing an evil before il actually materializcs. and it is not always nccessary th'1t

the result should actually be obtained.

Ibn Qayyim introduces the ternI dharicah (the means) which Icads to a llwfs'lda

and divides it into two categories. They are: (i) A dharicuh thut purposcly Ieads 10 a

mafsada, such as drinking khamr (wine or its like) which in turn leads the drinkcr into

trouble or mafsada. (ii) A permissible or recommended dhari'ah that is uscd 10 pllrslIe

a prohibited end. For instance. nikiii) al-ta1)1il. This nikiii), according to Ibn Qayyim, is

unlawful because it isperformed with the purpose of transgressing a prohibiled action.

'\'which is remarrying the unrevocably divorced wife. 52 In Islum, the parlncrs in this

kind of divorce cannot be remarried and, the tai)lïl is thereforc, prohihited.

-This basis of sadd aJ-dharicah is employed by Ibn Qayyim to maintain thut the

employment of 1)iyaJ is invalid and, lherefore, forbidden.

51 Ibid., pp. 310-1.

52 Ibn Qayyim devotes a special chapter for the invalidity of nikiii) aJ-ta~llïl in
his treatise al-Qiyifs fi aJ~shar'i aJ-Isllimi (Caira: al-Matba Cal al-Salafiyyah, 1375
A.H.). pp. 69-71. ::
.'.
 60

•
d. AI·Armiil TiibicalUn Ji Maqii,çidiha (The Acts follow their purpose, whether lawful

or unlawful).

Another argument with which Ibn Qayyim condemns !)iyal, is his concept of

the position of maqii..çid and niyya (purpose and intention) in judging an action. Ibn

Qayyim maintains that maqii..çjd and niyya have a considerable influence on judging

the validity of an action. The intention, according to him, can cause an action to be

lawful or unlawful. 53 Furthermore, h~ asserts that the intention or r.iyya is the soul of

an action, and the latter follows the former in being valid or invalid. This conclusion is

derived From the tradition of the Prophet declaring that "the actions follow the

intention (niyya), and, therefore, the doer will gain (a bad or a good result) based on

his intention. "54

I-Ience, based on its function, intention is the soul of an action and has an

• important role in affecting a declaration (laf.za) as weil as an action (camai). Not

surprisingly, Joseph Schacht conceives that intent is a fundamental concept of the

whole of Islamic religbûs law, be it concerned with worship or with law in the narrow

sense. The religious obligation, Schacht asserts, is discharged not by outward

performance as such, but only if it is done with a pious intent. 55

Based on this concept, Ibn Qayyim cornes to the decision that the employment

of {Iiyal is invalid and, therefore, forbidden; because the intention of~hf',.author of

{Iiyal is mostly the effectuation of a prohibited result or the evasion of an obligation.

:~;;'

For instance, when a person performs a sale with the purpose of creating lIsury (ribii), ..

_ sale is consi~cred usury. This kind of sale is called a double sale (al-bayCatiin). The
his
_ _ _-,0.." _
l---

(: 53 Ibn Qayyim, IcliIm al-Muwaqqi<in, p. 107.

54 Ibid., p. 123.

• 55 Joseph Schacht, Introduction 10 Islamic Law, p. 116.

,
 61

•
descLÎption of this sale is as follows: X seIls a c1uth tu Y for ten dollars in cash, and the

same c10th is, then, sold back to the former for twenty dollars on credit wilhin a year.

Thus, the c10th retums to the first owner, Le. X, who gets ten dollars l'rom the laller,

and the latter's money will be doubled within a ycar. In this case both X and Y

outwafd!y perfûmî a sale, while in fact their purpose or intcnt is usury (rib:ï). Theil'

transaction is externally a sale which is lawful, bUI theil' purpose here is usury which is

mvalid. In this case, Ibn Qayyim is seen to apply the general attitude upheld by the

ijanbalï schooi, Le. the moralist attitude whuse approach is thut the legal erfect of an

act or transaction must depend upon the motive or intent which inspires it. 5(,

Ibn Qayyim also conceives this kind of transaction as cheating (klJidlï') which

usually takes two forms: (i) performing an action for a purpose which is dislinct l'rom

its basic purpose and (ii) declaring a statcment for a purpuse whieh basicl~lly does not

belong to the statement. 57 The author of 1)iyal, in this case, according to Ibn Qayyim,

• has cheated the Lawgiver, i.e. God, by demonstrating the lawful act in order la gain an

unlawful purpose which he keeps secret. This kind of action, he mainlains, is cerlainly

prohibited in Islam. 58
~J\
<:::-
.-.'

,./1

UnfortunaîeIy, a problem arises l'rom Ibn Qayyim's use of inlent as the basis

for judging an action. It is diffi<:'t!!t~fBr~n to observe, or even 10 asscss: anothcr's

.-.......:::::<:::::--
intent in carrying out an action, sincc the intcnt itsclf is not cxplieitly statcd. How thcn
li
can one'judge anothcr's action bascd on an implicit (hiddcn) intcnt if wc, human

bei.ngs, cannot reach the inner part, i.e. intcnt, of ~6mconc cise? Thercforc, this

c::'
------~
"1
56 Noel J, Coulso~, Conflict and Tensions in Islamic Jurisprudence (Chicago:
University of Chicago Press, 1969), p. 86.

57 Ibn Qayyim, l'liim al Muwaqqi'ïn, vol. 3, p. 174.

• 58' ' .i
IbId., pp. 173-4.
-~~~~//-
.
\::
 62
argument can be cenainly challenged and the matter be declared impossible for man to

judgc, and is thcrefore left ta God.

e. Negation of the Purpose and the End of the Sharïca.

Anothcr argument advanced by Ibn Qayyim in condemning 1)iyaJ is that, the

author of 1)iyaJ, in their performance, has deliberately negated the purpose and end of

IsIamic Iaw. and ignored maqiI$id aJ-sharica.

God has revealed His guidance and considered the things which are

commanâed for the goodness of mankind, and these must therefore be carried out. On

the other hand, He has also decided certain things ta be prohibited because they are

bad or evil and, hence, are not allowed. This kind of guidance is purposely revealed

for the good of human beings and for their mU$Jal)a both here and in the Hereafter. 59

However, by evading the obligato~' things, or doing the prohibited ones using
I~ \
l)iyaJ, the aUlhor of 1)iyaJ, in fact, ignores die goal and end of the Law-givc~> in

l' revealing His guidance, which consists of obligations and prohibitions. The problem
li
of 1)iyaJ is that their author prefers to simply base his action on the surface part or

external form of the action, without considering the content of such action in terms of

purpose of"end result. For instance, he might use the form of sale to achieve usury, or
" ~
the form of nikiil) to transgress a prohibited marriage. Thus, using the explicit

declarmion and form without having any relationship between them and the content

and purpose of the action, the action becomes meaningless and invalid, and thercfore . ~-< t
' -"
forbidden. Hence, in doing sa, Le. making the unlawful things lawful and evading the

obligatory lhings by using l;1iyaJ, the author of l;1iyaJ in fact creates corruption and evil

in religious p~rspectives and causes the destruction of the Sharica in severalways: He

59 Ibid., p. 192.
 63
firstly, violales Ihe vinue and wisdom of God (bikllwt :J1·SIuïri'"). inherenl in His

commands and obligations, by evading Ihese obligalions or doing their Opposile.

Seeondly, Ihe purpose for Ihe employment of !liyaJ is Ihe performance of prohibiled

things, although these may seem, on Ihe surface, 10 eonform 10 Ihe leller of Ihe Shari'a.

For instance, those who perform the sale of 'ïlliï (double sale), have the purpose of

making usury (ribiï) instead of intending a sale; likewise, those who perfonn a ilibll

when the time of paying Ihe zakiït is duc, their purpose is nol making a i1ibll, huI

rather the avoidance of the obligatory zakiït. Thirdly, the author of !IÏYllJ associales Ihe

1)iyaJ with God and the Sharica, while th,'.v are in fact contradiclory to each olher. This

is because the Sharica was revealed as guidance for mankind in Ihis life; by

introducing certain rulings intended for their benefit in general; while the nalure of

1)iyaJ is the evasion and transgression of such rulings. 60

Ibn Qayyim asserts that the Lawgiver, in revealing His guidance, includinglaw

•
,. '"

and regulations, has a concrete purpose, Le. mU$Juba. Concerning Ihe lIJ:1$JlI!m as the
.',/

purpose of the Sharica, Ibn Qayyim maintains thal Ihe basis of the Sharicais wisdom

(1)ikam) and welfare (mu$/a1)a) in this world as weil as Ihe Hereafter. This wei l'arc lies

in complete justice, mercy, well-being, and wisdom. Anything Ihat departs l'rom
"
justice to oppression, l'rom mercy to harshness,' l'rom wei l'are 10 misery, ami l'rom

wisdom to fol1y, has nothing to do with the Sharica, even Ihough il has enlered therc

by ta'wI/ or a process of interprelation. 61

God, according to Ibn Qayyim, has provided clear injunctions concerning Ihe

prohibition of usury, adultery and their means, and Ihe permissible or even

recommended sale and marriage. The 'purpose of allowing the performance of the Iwo

•
60 Ibid., p. 193.

61 Ibid., p. 14-15.
!
li
 64

•
Jaller oncs is mu,çlu!w for human needs. Aeeording to Ibn Qayyim, since those

activities, Le. usury and sale, marriage and adultery, arc rather similar, the distinction

between them is not confined to their outward form or declaration, but rather in their

purpose and intention, otherwise they will be too similar. The problem with 1)iyal

lherefore arises when the form is lawful, while the purpose is invalid. 62

Ibn Qayyim, on the basis of his discussion concerning the prohibited 1)iyal,

concludes that, the prohibiled 1)iyal apparently lead to the lifting up of a prohibition

after the proof for it has been established, and ignoring the obligation after its cause

has been approved. Indeed, Ibn Qayyim is to be eomplimented for his thorough

examination of the mechanics and the elements of 1)iyal, and for laying down the

principle rules of their recognition anùdst the fiqh innovations. These principles are as

follow: Firstly, those i)iyal change the system of obligations and prohibitions.

Secondly, they are made of eoneei!s and fallacies; there is always sorne kind of

• sophistry and uneven inference in their texture. Thirdly, in their main form, their

reasoning involves a referenee to th~. SalaI, to the Companions, to the Apostle, and to

the Divine law Giver, with the purpose of making them appear to follow the prineiples

of religion (U$ül al-Din). Although the reasoning of the Sharï'a is also based on the

same sources, yet the 1)iyal are clearly èJ~~~rnible by the unmethodical jumps in their
',~ ,

construets, unsuitable analogies in the main 60'd~~ their arguments, and inereâulous
~

evoeation of general principles of the Sharï'a in their final conclusions. Essentially,

they skip over the series of linùtations or considerations whieh enable the general law

to apply to the particular case subject to their judgment. Fourth, the agent of the 1)iyal

lacks the consciousness of sin, and does not feel repentance for his doings. Fifth, he

\~
wants to cheat the Creator and His creatures by trying to seek concessions in his favor /

through the linguistic forms of the law. Sixth, the 1)iyal are marked by opportunism, a

• 62 Ibid., p. 194.
 65

•
fact which encourages the enemies of Islam to condemn the faith of Islam as laeking

in sincerity and purposiveness. Seventh, the agent of !lira/ uses his \Vits and reason fur

undermining those principles and conventions which were estahlished and

strengthened by the Apostle of God, and repudiates those traditions which \Vere made

ohligatory by the Iatter. 63

2. Ibn Qayyim's Acceptance of lfiya/

Although Ibn Qayyim generally criticizes the employment of IliYll/, he 'Idmits

certain biya/ to be Iawful. They include the use of certain permissible me'lIls to ohtain

good purposes, to assure the truth, or to avoid unjust deed, while the means themselves

may not be purposely proposed for the intended end, or reeognized by the Sharï'a.

Ibn Qayyim in this case, simply bases his argument, for aeeepting this kind of

biya/ on ma$/aba, Le. assuring the truth and avoiding evil deeds, without referring to

• an inju~çtion (na$$), or other Iegai sources which are reeognized in Islmnic

jurisprudence. By asserting "ma$/aba" or the "truth" as his basis for the acceptance of

certain biyal, Ibn Qayyim must have meant a/-ma$laba al-mU/'5a/a, for he does not

refer to the ma$laba which is recognized in Islamie jurisprudence nor does he lays its

basis in the na$$.

Ibn Qayyim, in discussing the ma$laba and mafsada in relation to actions,

divides actions into those which are completely ma$la!w or their ma$l1l!w is

preponderant, and those which are eompletely mafsada or their mafsada is

predominant, and finally those whose ma$latJa is èqual to their mafsada. The Sharï'a
, '

" deals with the first four actions by commanding those which are completely ma$laba

and those whose ma$laba is preponderant, and prohibiting those which are purely

• 63 Ibid., pp. 200-1

 66

•
lIliJf.çada and those whose mafsilda is predominant. 64 As for the type of action in

which its ma,çla1)a is equal to its maf.çada, Ibn Qayyim, after examining the dispute

among the scholars about ils existence, cornes to the conclusion that this type of action

does not exist. If such action secms to exist, it is for men, aecording to Ibn Qayvirn, 10

seek its preponderance, and to determine whether its lIla$la1)a or its lIlafsada is
predominant. 65

When an action can not be referred to na$$, ijmii', or qiyiis, in deterlfÙning its

nW$laba or refusing its mafsada, one can seek the way to deal with it from other

sources or by using other methodologies, such as al-ma$la1)a al mursala. Ibn c.. .jim's
aeceptance of certain 1)iyal, despite his eondemnation of their employment in general,

can be interpreted as one of the ways of the implementation of al-ma$la1)a al-mursala.

Ibn Qayyim, however, lays certain conditions on accepting the employment of 1)iyal.

Such conditions are: the means should be permissible even though it is not used for the

• proposed purpose, or it is not recognized by the Shari'a. Another condition is that, the

purpose and the end to be aehieved do not contradict the Shari'a or the purpose of
- ----:.::-:->
.\
tilsllri,.66 For instance, when a landlord of a house is afraid that the absence of his

lenant might cause a situation in which he ean not have his home returned ta him when

its rental lime is due; the'1';a 1)ila can be resorted ta in this case a1lowing the landlord

ta sign a lease wilh the tenant's wife while the husband, who is expeeted ta be away,

gives his guarantee that his wife will return the house ta the landlord when the time of

rent is due; or the wife ean give her guarantee that she will return the house whieh is

rented through a lease signed by her husband when the rentai time is due~imd the

64 Ibn Qayyim, MiftiiiJ Diir al-Sa'iidall, vol. 2 (Cairo: Maktabat wa Ma\ba'at

Mul,1ammad'AIi ~abïl,1, n. d.), p. 14.

•
65 Ibid., p. 16.

66 Ibn Qayyim, l'liim al-Muwaqqi'in, vol. 3, p. 349.

 67

• husband is away.67 Another example of the permissible (liYil/ is when a land lord is

afraid of a tenant's occupation of the former's house al'ter the rentai time is expired. In

this case a bïla for safeguarding the landlord's righl is the writing clown of a conùition

in the contract stipulating that, when the tenant does not retul'l1 the 110use to the

landlord when the rentai time is due, the former must pay the laller such and such

amount for each day of his stay.68 In the damain of ciblidil, Ibn Qayyim aecepts certain

biYil/ as permissible. For instance, when someone intcnds ta pcrform an i(mTm for a
/;wjj but is not sure if he could accomplish ail the obligations lInd the requirements of
the bajj on time, especially the wuqüf at 'Arafat since the time for accomplishing it is

limited; and if he misses it afterperforming the i(lriim for a blw, he would be obliged

ta perform a qaçfli' for the biljj in the following year (Le. ta perform another (11!Ü the

following year as a qaçfii' for the missed one), in addition, he wouId have ta paya dllln

by slaughtering a sheep for missing the ~liljj. The {lilll ta escape l'rom this

• encumbrance, is the performance of a general i{lriim, Le. without spccifying if it is

intended for a {lajji or a cumrah; thus leaving him the chaice ta decide if his i!mTm

would be for a {lajj or a 'umrall, depend on the time available ta him. Hcnce, this legal

ruse would save the mu{lrim l'rom the obligations of qaç/ii' and dam for having missed

the !Jajj.69

In the field of contract, Ibn Qayyim also provides sevcral cxamples. For

instance, he l'aises the question of whether a partnership r.stablished on thc basis of

merchandise possessed by the two parties is lawful or not. In addres~lhis question,

,
".~ ~
.\\
Ibn Qayyim quotes two opinions of Ibn J:lanbal affirming that if this partnership is ta

be considered lawful, then the worth of the merchandise would be thcir investment at

. 67 Ibid., p. 350..
=

•
68 Ibid., p. 353.

69 Ibid., p. 363; cf. al-QazwlnI, Ki/ab a/-/;liya/ fi a/-Fiqh, p. 6.

 68

•
the time of the contract, and no bïla would be needed; but if it is not permissible, the

two parties can perform a !lfi:l in order to achieve their partnership. The bïla for this

case, runs as follows, if eaeh of them possesses the same amount of merchandise, one

of them is to purchase half of his colleague's merchandise with half of his own, and

hence both of them would become partners in accordance with their shares in the

investment, Le. half of each.7°

In addition, Ibn Qayyim provides numerous examples of lawful biyal

applicable in matters of marriage, oath, and other transactions; ail of which have the

purpose of maintaining and assuring the truth, while the biyal themselves are not

eontradietory to the Shari'a.

From the above exposition we can see that the use of biyal has been widely

disputed among Muslim scholars, and that this dispute has often been based on the

• attitude he1d by each scholar regarding law and morality, The l;Ianbalis who prefer the
::::'"'::::::.':;,-
moralist attitude, assert that the legal effect of an act or transaction must depend UP0rl)'

the motive or intent which inspires il. Based on this view, the l;Ianbalis reject the
/

employment of !lÎyal, for the employment of biyal generally disregards the motive and

intent of an action. The l;Ianafis on the other hand, have a legally fOimalist attitude,

lhrough which theymaintain that it is not for the law to attempt to investigate the
"
minds of the parties involved, rather, it must accept and regulate their actions at face
~ ,i

value.?1 Not surprisingly, the l;Ianafis accept the employment of biYII/.

Ibn Qayyim, as a l;Ianbali, upholds the moralist attitude which conceives the

legal effect of an act or transaction to be depending on the motive or intent, and he,

70 Ibn Qayyim, leliInl al-Muwllqqi'ïn, vol. 3, pp. 368-9; cf. Shaybani, Kitifb al-
Makhiirij fi aJ-I;liyal, p. 58; Kha~~af, Kitifb al-I;liyai wa al-Makhiirij, p. 67.

•
(
71 Coulson, Conf/iets and Tensions, p. 86.

i:
\.'
 69

lherefore, rejects the use of !liy,ll. However, sinee hc also rcalizcs that thcrc arc ccrwin
ft !lÏyaJ which arc not contradictory to the Sharï'a, and thal thcir plirpose is thc assurancc

of the tfllth, he accepts some of thcm as lawflli. On thc hasis of Ihis sl'lIldpoint. lhn

Qayyim holds the vicw that the fatlv1Ïs on biYilJ which dclihcrately circlImvcnt thc

Sharïea, are prohibited and those who issue sueh {;ltll'fis arc sinful and rcsponsihlc for

the bad results of their fatlV1Ïs.

Finally, it remains to be said that, the next chapter will offcr a discussion of Ihn

Qayyim's view concerning the change of the filtlVlï based on the changc of timc, placc,

and condition.

•
•
CHAPTERTHREE

THE CHANGE OF THE FATWÂ FOLLOWING THE CHANGE OF TIMES

AND CONDITIONS

Although Ibn Qayyim generally condemns the falwtïs on 1}iyal and shows their

invalidity in a convincing way, yet he cannot be considered a scholar who perceives

the falwa to be rigid and immutable, since he affirms that the falwa might change

following the change of times and conditions.' Ibn Qayyim largely bases his

arguments for the changeable nature of the falwa on the risala and the fmwtïs of 'Umar

ibn al-Kha!!üb. 2 He further strengthens his approach by relying on the ma,çla1)a, which

he considers as the purpose and the end of the SharI'a and its 'illa as wel1. 3 Since this

characteristic of the fatwa, Le. f1uidity, is so critical to understanding Ibn Qayyim, it

will be the central topic of this chapter.

• A. lbn Qayyim's Concept of Ijtibiid

Before we can fully investigate Ibn Qayyim's understanding of the nature of

the falwa, we have to examine his use of ijlihiïd; for it is his approach to ijtihiid that

serves as the foundatioi;for his later arguments on the changeable nature of the falwii.

1 See his l'liim al-Muwaqqi'ïn, vol. 3, pp. 14-70.

2 'Umar's accommodation of the falwii for various circumstances has also

influenced Sir Mu!)ammad Iqbal (1873-1938). Specifically, Iqbal was concerned with
question of "whether Islamic law is capable of evolution." This capability, according
to him, will only come about if Muslims adopt 'Umar's dynamic approach. 'Umar, in
the opinion of Iqbal, was the first critical and independent mind of Islam to have the
moral courage tO'say: "The Book of God is sufficient for us." See Mu!)ammad Iqbal,
The Reconstruction of Religious Thought in Islam (Lahore: Institute of Islamic

•
Culture, 1989), p. 129.

~ Ibn Qayyim, JCliim al-Muwaqqi'ïn, vol. 3, p. 14.

i.'
 71

•
Ijlihad. which Iiterally means "exerting oneself ta the utmost." implies "the
exercise of one's utmost reason ta deduce a principle compatible with the SharFa." \ts

actual operation was set in motion by the Prophet himselr. After the Prophet's death.

and as new territories were added to the growing Muslim empire. the praclice nI'

ijlihad spread over a vast territory and occurred with greater frequency.4 Even in the
formative days of MUQammad's prophethood, when man's world was small, his social

problems were few and the statecraft was simple, ijtillad \Vas necessary. Thercli.)re. it

should be all the more necessary in the subsequent period, after his death, when every

aspect of life had become complex and problematic, and when Muslims felt confused.

bewildered and frustrated.

Ibn Qayyim looks to 'Umar as a roll' model in lhis regard. One parI of 'Umar's

risala, deelares, ..... If you pass a judgment yesterday, and upon reeonsidenltion arc
guided to a better one, you l'an revoke the first and en force the revised one, for trulh

• (right judgment) is eternal, nothing l'an make it null and void, and return 10 it is beller

than persistenee in falsé;oo(i(injustice)."5

This slatement, according to Ibn Qayyim, is a suggeslion to the lIIujwllid

(judge) to allow for any extenuating cireumstances in a case of law. Specifically, Ibn

Qayyim suggests that if new information or evidenee comes 10 light. a previous ijliluïd

can be revised and represented. Furthermore, Ibn Qayyim argues lhat many sil~a1i6ns

4 Moinuddin Ahmed, The Urgeney of Ijtihffd (New Delhi: Kitab Bhavan,

1992), pp. 31-2.

5 Ibn Qayyim, l'liim al-Muwaqqi'in, vol. T;8CîT~'j:f. Khurshid Ahmad Fariq,

"The State Letters ofCaliph 'Umar," The Islamie Rèviêw;46 (January, 1958), pp. 13-
7, p. 16. Margoliouth has a different version for the translation of the statement, as
follows: " ... If you have given judgment and upon reconsideralion come to a differenl
opinion, do not let the judgment which you have given sland in the way of retraetion,

•
for justice may not be annulled and you are .10 know"that il is belter to retraet lhan lo
perish in injustice." D. S. Margoliouth, "Omar's Instruelions lo the Kadi," the Journal
of the Royal Asialie Sociely of GreaI Brilain and Ireland, 1 (1910), pp. 311-2.
 72

• ,tl'e unique and no single ijtihad ean be considered wholly accurate. As a result, Ibn
Qayyirn advocates ijti1J[jd as a concept which could change following the change of

limes and circumstances, if truth is going to be achieved successfully.6 One example

of this approach raised by Ibn Qayyim, is 'Umar's decision on a maller of inheritance.

Ibn Qayyim reports from the authority of 'Abd al-Razzaq aI-J:Iakam ibn Mas'üd al-

Thaqafi, thal the laller said, 'Umar judged in the case of a woman who died and left

behind her husband, a mother, two brothers of the same father and mother, and two

brothers of lhe same mother. 'Umar gave these four brothers only one-third of the

stake. One of lhe Companions then raised a question to 'Umar conceming this

decision saying that: "You did not give such share to such brothers in the year of such

and such, as you did now." 'Umar repIied, "that was our decision on that day, and this

is our decision today." 'Umar, in Ibn Qayyim's opinion, had taken these two different

judgments or ijû/liids as correct since they addressed different situations. This is notto

• say that the previous ijti/liid was fallible but, rathel\ it did not fully address the issues

of the later case.?

I. Ibn Qayyim and Qiyâs

Qiyas is the main form of ijtihad in Ibu Qayyim's opinion. Ibn Qayyim seems

to have relied on, and used the qiyas frequently in order to derive rulings, or issue

fUlIvas, for Ilew cases, when he could not find any evidence in the n,a$$. or in the

f.1lwas of the Companions.

Ibn Qayyim's views of the concept of qiyas was inspired and influenced by his

understanding of 'Umar's risaJa conceming ijûhad: One form of ijtihad that was

employed, and suggested to his govemor, by 'Umar is qiyas, as his letler says,

,.. "

•
6 Ibn Qayyim, I<Jiun a/-Muwaqqi<ïn, vol. 1, p. 110.

7 Ibid" p. lU -',_.
"
 73

• Comprehend thoroughly ail cases that busy YOUf mi;'ld and for which YOLI do
not get any guidance eilher from the Qur'an or the Sunna. Study ail resembling
legal issues and deduce parallel legal inferences from parallcl cases a:.d adopt
the one which appears to you most pleasing to God and most conforming to
justice. 8

Ibn Qayyim contends that this statcment of 'limar is one of several argumellls

adopted by the proponents of qiyas in supporting thcir views that qiyiis is one proof of

the Shari'a. These proponents assert that this risa ,., had been accepted by the

Companions and none of them was reported to reject il. Furthermore, Ibn Qayyim

contends that the Companions were in agreement with the qiy,ïs as Ofil~ proof of the

SharI'a, and they had even used it in deriving rulings for novcl cases 9

It is apparent, based on this risa/a of 'Umar, and rcalizing the fact that events

are endless and new problems that need solutions may arise at any moment, that

mujtahids, or those who were res;JOnsible for problem solving in the Muslim

• community, after the time of the Prophet, were in need of a systematic melhodology

for the purpose of und~,rstanding the

"
•
contents of the sources, Le. Ihe Im~~,

drawing conclusions that àre thought to be identical to those which arc slated in the
and for

na$$. Hallaq describes how a new methodology arose by which Ihe system of analogy
was used to reduce the harshness of textual legal evidence to cover unprecedented

situations. Divine wisdom, Hallaq continues, provided subtle indications that would

help man in their use of qiyiis. These indications were utilized to cover rulings hidden

in the sources. Thus, il was necessary to draw parallels between a new problem and ils

equivalent in the sources on the basis of their similarity. The similarity was determined

by a common denominator, the ciIJa. Once it is known beyond doubt that bolh cases,

the original and the assimilated, shared the same cilla, the judgment of the original case
\\

•
8 Ibid., vol. l, p. 130; cf. Fariq, "The State Letters of Caliph 'Umar," p. 16.

9 Ibn Qayyim, Icliim. aJ-Muwaqqi<in, vol. l, p. 130.

 74

.0 the assimilated case, thus ensuring that the judgment decreed by

•
was transferred

Gnd was being eXlended.:O

ln its carly stages the qiyiis ,'laS used in a simple and rudimentary fashion,

Literally, it means "ta measure, to compare" and "to weigh up," suggesting that it

might have been derived from the noun qaws l"bow"), a device used for measurement

in Arabia, Il

Qiyiis is, in fact, considered an elaborate form of ra'y, but with one large
difference, Le, seope, Ra'y has a flexible and dynauùc nature, since it involves

individual's guest to understand the spirit, wisdom and justice of Islam, Il is the

deliberated and balanced opinion of someone who strives for better appreciation, Ibn

Qayyim defines m'y as "a decision which the mind arrives at artel' thinking,

contemplation and genuine search for truth in a case where indications are

• conflicting."12 He divides ra'y into three categories: void, sound l3 , and doubtful.

Qiy,/s, on the other hand, as it is defined by al-Râzi, is the procedure involving the

10 Hallag, "Considerations on the Function and Character of Sunni Legal

Theory," Journal of tlle American Oriental Society, 104, 4 (1984), p. 680,

11 Ahmad Hasan, "The Principle of Qiyiis in Islamic Law: an Historical

Perspective," Islamic Studies, 15,3 (1976), p. 205.

12 Ibn Qayyim, l'liim al-Muwaqqi'ïn, vol. l, p. 66; cf, Ahmad Haslifl, "Early
Modes of Ijti1liïd, Qiyas and Isti1)siin," Islamic Studies 6 (1967), p. 64; id. "The
Principle of Qiyas, p, 204, .

13 The sound ra'y, which is termed al-ra'y al-ma1)müd (approved opinion),

according to Ibn Qayyim, represents the opinion of the Companions, that which
explains the na\ç:;. that which is agreed upon by the Community an~handed down from
the past to the present generation, and that which is based on the Qur'ân, or on the
Sunna, or on the opinions of the rightly-guided Caliphs, or on the verdicts of the
Companions, and finally that which is based on individual opinion artel' investigating

•
the na:;:; and reaching the conclusion which is close to the na$$ or is not l2.0ntradictory
with it.See l'liim al-Muwaqqi'ïn. vol. l, pp. 79-85; cf. Hasan, "Principle-l)f Qiyas, " p,
204.
 75

• assimilation between the ruling of a new case and a textual precedent when hoth

rulings are deemed to have the same '·iJJa. 14 Qiylis indeed is an extensiùn of a

precedent. Its scope, therefore. is more limited than that of r'I'y. In ra'y. the emphasis

is found on the actual situation. while in qiyi's the emphasis is on ahstract analogy.

whatever the situation may be. 15

Ibll Qayyim affirms that the Qur'an contains more than forty examples which

suggest the use of analogy on various cases. and states their rulings hased on such

analogies. The Qur'an uses many tools of similes. such as m:ll/m/ and kil (like) to

denote m:y existing similarities or resemblances. Strictly speaking. these similes

cannot be called qiyiIs. However, it is plausible to suggcst that such Qur'anic

expressions laid the foundation for th,) later emergence of the notion of qiYi/.~.If>

Since the Qur'an neither commands nor prohibitslls to use it. Ibn Qayyim

• suggests that the implementation of qiyiIs necessitates caution. The lawful Cfiy!is.

according to Ibn Qayyim, is described as a/-m/ziIn. Unlawful CfiyiIs is that whieh

contradicts the Qur'an, such as the drawing of an analogy between sale (a/-bay') amI
",
!
",

14 "jthbiItu mithli tlUkmi ma'/ümin Ji ma'/üpiTn'iikiJMiIl Ii i!iJi isiJlib<ïhillimiT Ji

rjJJati al-/Jukmi 'inda aJ-muthbiti." See Fakhr al-Din.lal-Razï, a/-Mab.~ü/ Ji 'ilm U~ül a/-
Fiqh, 2 vols. (Beirut: Dar al-Kutub al-'Ilmiyyah, 191:8), vol. 2, p.2~9.
/ "< ..
15 Ibn a!-Muqaffa' illustrated this limitedi1~ss of qiyiIs. by givil1gtl~C'following
example: suppose a man consults you as to make a suggestion whether he should
speak the truth or tell a lie. You wouId certainly suggest that he sholiid spea~: the trllth.
He asks YOll whether in the case of assassination attempt, he should tell th(1 trllth and
give the pllrsuer the trail of the fugitive? Here qiyiIs demands that he must\,!,speak the
truth but ra'y sllggests to break the law and not to speak .the truth but to dp what is
generally beneficial. See Ibn al-Muqaffa', "RisiIJa fi aJ-$atliIba," RasiI'iJ aJ~uJag/liT'
(Cairo: Matba'at al-Zahir Imam MaQkamah al-Isti'naf, 19081 1326), p. 55. This
I, example shows that qiyiIs fails on many occasions because of its restricted scope.

•
.'
16 Ibn Qayyim, j'JiIm aJ-Muwaqqi'ïn, vol. 1, pp. 130-3; cf. Ahmad Hasan.
"The Principle of Qiyii's in Islamic Law," p. 205.
 76

• usury (al-ribii) on the basis of merchandise being exchanged. 17 The use of qiyiis, with

its Jack of Qur'anic sanction. has generated some debate in Islamic circles. While

some reject it outright as a viable methodology. the proponents of qiyiis operated on

the principle that there were hidden truths in the Qur'an that couId be brought about

through analogy.18

AI-n iziin, which is. in the view of Ibn Qayyim. the lawful qiyiis (al..qiyiis al-
~I*ib), rep:'esents both al-'adl Uustice), and a method by which to discover justice.

From Ibn Qayyim's exposition of the term al-miziin. it can be inferred that the meaning

of al-miziin is an analogy (al-qiyiis) which is in agreement \Vith the principle of the

Sharica, such as drawing an analogy between two things which have and share one

'illa. t9 The term al-miziin 20 occurs repeatedly in the Qur'an and generally refers to the
pursuit and application of justice. With such Qur'iinic sponsorship, a/-miziin is widely

considered ail obligatory responsibility for Muslims. 21

, '
.-

•
:,

Ibn Qayyim, based on his survey of the Qur'an, offers three kinds of qiyiis

which, aceordit'g to him, tind their roots in the Qur'an: qiyiis al-'illa, qiyiis aleila/iila,
] 1

and qiyiis al-slJabah. 22 The first category, qiyiis al-'illa, refers to the use of,analogy
1. .

between two cases where there is an exact match of circumstances. The 1)ukm can

-,'---------

17 Ibn Qayyim, l'iiim al-Muwaqqi'in, vol. 1, 133.

18 Ibid.

19 Ibid.,; cf. Sharf a1-Dïn, J!;h Qayyim al-Jawziyya, p. 248.

-ii .~' ,
20 This words cornes in' ~everal verses in the Qur'an, such as: - AlliilJ alladlJi
anzala al-Kitiib bi a/-1)aqq wa a/-miziin..." (Q. 42: 17); "Laqad arsalnii rusulanii bi al-
bayyiniit, ..~a anzalnii ma'ahum al-Kitiib w~a/-miziin Jiyaqüma a/-niisu bi a/-qist ..."
(Q. 57: 25); "... wa al-samii'a rafa'a/lii wa waçfaca al-mJziin ...." (Q. 55: 7). _

•
21 Ibn Qayyim, ICliim'aJ-Muwaqqi'in, vol. l, 133.

22 Ibid.
 77

• then be extended l'rom the original case (a~l) to the case in hand (lilT'"). The key tll this

category is that both cases share the same cause (Cilla). Among the Qur'unic referenccs

to qiyas al-cilla, quoted by Ibn Qayyim, is Q. 3: 137: "Systems!!'!'!:: passed away

before you. Do but travel in the land and see the nalme of the con~eqllenee for thosc

who did deny (the messengers)." The interpretation of this verse revolves arollnd thc

concept of the faithful examining the misdeeds of their predeccssors and the calamity

that followed. By understanding the cause of their misfortunc, Muslims can

extrapolate how 1I0t to behave. Ibn Qayyim, on the basis of this example, concludcs

thatthere are four components in the qiylis al-cilla: (i) the a$l, (the past generation); (ii)

the far< (the present community who are spoken to); (iH) the 'ïll1l, which can include

both the a~l and the far< (their misdeeds); and (iv) the tlUkm, i.e. thc destruction of

both the communities. 23 Another example taken by Ibn Qayyim is Q. 6: 6, where it is

related how previous generation was destroyed due to their sins.

• '1,
The second category, qiyiis al-da1fIla, .suggests the similarity between the 11$1
1

and the far<, indicated (da1fIla) by the cilla they share. Ibn Qayyim highlights Q. 41: 39

as an example of this type of qi.;Y.fiS' He:suggests that this verse shows an analogy
;'1

between the process of invigorating the earth (itlyli' al- arçl) by God through rain,

which results in thrilling and growing the earth, the process of which is familiar to,

and can be seen or proved by mankind, and thf.'Oivine revelation's breath of life into,
\\
or the process of quickening, the dead body (ibyii' al-mawlii), something which is
,
singled out and denied by the unbelievers, since it cannot be seenand proved. The cilla
)'
which requires the acceptance of both i1)yii' is that God has the aBility to do allthings,

including these kinds of i1)yii'. And by making i1)yli' al-arçl equivalent (na?-ira) to itlyli'

. al-mawtli indicates (dallai diliila) the possibility of both i1)yli'.24 Thereforc, the

•
23 Ibid., p.I34.
\\
24 Ibid., pp. 138-9.
 78
eomponents of qiyiis in this verse arc: 0) the a~l is quickening the earth and the plants

on it of thr; watcr sent down by God from the heaven; (ii) the far' is quickening the

dead body; (iii) the 'illa is God's ability ta effeet these phenomena; and quiekening the

carth is the indicator (daliila) of the cilla; and (iv) the 1;ukm is the possibility of

quiekening the dead body.

The third type, qiyiis aJ-shabah, coneentrates on the similarity between two

phcnomcna on the basis of form (~üra). However, their content differs significantly.

This form of qiyiis. aecording ta Ibn Qayyim is null and void (qiyiis bâtil). He points to

Qur~ânic verses which describe the unb(~lievers' use of this analogical reasoning.

Spccifically, he cites "". we see thee but a mortai like us ..." (Q. Il: 27). Here, the

unbelievers adopted the argument that the Prophet, by reason of his human fonn, was

not in faet superior ta others, and he therefore was not really a prophet. Ibn Qayyim

refutes this approach by arguing that they draw an analogy between th~ messenger, the

a\çl, and theuselves, the [arC, without having or showing any 'illa and dalïl which

detemlines the similarily between the two, except their similarity in creation and form;

and this kh~~ of analogy is therefore invalid (qiyâs flIsid). This refutation is bolstered
'\.-
'~,y the Qur~a~ic verses "... we Je but. mortals like you, but Allah giveth grace unto
wh.>~He will of His slaves. "." (Q. 14: Il); and "". Allah knoweth best with whom to
fi
,(
place His message. "." (Q. 6: 124). Another example of qiylis aJ-shabah, quoted by

Ibn Qayyim, is the extension of sale towards usury. While the out side forms are

simi'ar, the essence of the two activities is quite different. 25 The ruli~)~s, in Ibn
Ji

Qayyimts o»inion, are not based only on the outer form of things or cases, but rather
il
on the esse\hce (1;aqiqa), the quality and characteristic (~ifa) of the things, and the

rulings the~\ore follow the $ifa and the ./;1aqiqa in their absence or presence. r

25 Ibid., pp. 148~9.

I-~'

\-
 79

• On the basis of his survey eoncerning the use of 'li)';!" in the Qur'an, Ihn
Qayyim cornes '.0 a conclusion that the Qur'an does not mcntion any of 'li)';!" ;li-

shabah except for showing the invalidity of such 'li)';!" which is gcncrally used hy the

unbelievers; and this kind of 'li)';!s. as far as it is mentioned in the Qur'an, is

unacceptable (mardüd) and blame worthy (madhmüm).26

One of Ibn Qayyim's most prominent fcatures was his defense of the 'li)';!".

This is apparent l'rom his conclusions where he argucs that neithcr the Shari'a nor the

Companions forbid its use. In fact, the proper use of al-'liyiïs al-~a(lï(1 ensurcs the

application of God's word. 27

Adopting an approach to refuting the arguments of his opponents, Ibn Qayyim

systematically addresses each individual point against the use of 'liy/!s.2K For instance,

the opponents of qiyiïs cali aÎlention to the Shariea ruling that a man must perlorm the

• major ritual ablution (al-ghusl) after ejaculation but not aner urinating: Since,

essenÜally, these two bodily functions involve the same portion of anato~lY, ,iblution

should be performed in both cases. In response to this question, Ibn Qayyim explains

that while their formmight be similar, their point of origin is not. Semen, Ibn Qayyim

contends, is constructed l'rom the inne. workings of a human body while urine is

simply the byproduct of nourishment which is impossible to continuously remain in

the bladder. Furthermore, Ibn Qayyim states that semen is much more significant as a
.,,,--1;-·
life-giving ingredient, and producing semen is much more influcntial and imprcssivc

i
!'
26 Ibid., p. 149.

•
27 Ibid.;·.vol. 2, p. 52..

28 Ibid., pp. 52-164.

 80

• ta bath human body and spirit, as opposed to urine. Consequently, the Sharï'a is ql!Îte

justified in its separation of urine and semen for purposes of ritual cleansing. 29

Given Ibn Qayyim's division and exposition of qiyiis, one can conclude that the

''il/a has an important raie in making the qiyiis valid and lawful. This was shown in the
case of qiyiis a/-'jJJa and qiyiïs a/-da/ii/a; if no viable 'jJJa. is present, the qiyiis is

unacceptable, as in the case of qiyiis a/-shabah. Hallaq affirms that "the 'il/a is the key

clement in aIl analogies, and any misuse of it", he says, "would have meant

carelessness in abiding by God's law."30 Hallaq

, explains that the previous Muslim

jurists placcd a general emphasis on analogy, while particularlY stressing the 'jJJa. This

interest in the qiyiis, specifically the 'jJJa, was motivated by a wish to maintain strict

lcgal reasoning that correspond with the spirit as weIl as the letter of the law.3\

Ibn Qayyim comments that one of the eommon features of the Qur'an and the

• Sunna, as far as the rulings are concerned, is their equalization of two similar things,

connccting one to another and consirlering both of them in the same status and ruling.

The Shari'a, according to Ibn Qayyim, is free of any conflicting guidelines, such as

preventing someone from doing an act which contains a mafsada, while a110wing him

to do another one which has the same mafsada, or similar to lhat of the former or even

worse. 32 Ibn Qayyim conlinues by suggesling that it is impossible for the Sharï'a to

make one lhing permissible and lawful as human beings are in need of il and their

ma~/ai)" is apparent in il, while forbidding another which obviously fills their needs

29 Ibid., pp. 58-9.

30 HaIlaq, "Considerations," p. 680.

31 Ibid. .\

• /
'\.. •
\

32 Ibn Qayyim, l'liim al-Muwaqr" '\~0I. l, p. 195.

'",--
J,
 Hl

• and their ma~la!lil depends very much on it," The underlying cnlx of this supposition

is that the Sharï'a connects two similar cases on the basis of their '·Wu. Once again. Ibn

Qayyim stresses that this underlying 'Wu. and the ,~il;l which inl1uencc the rulings.

originale with the Shiiri'. Gad, in arder ta show tlmt the rulings arc depended on these

'il/al in their presence and absence (liyadul/u bidhiiliku "um lU",Il/Uqi UHlUkllli /lilJ:/

ayna lVujid:Jt}.J 4 Hence it is apparent that Ibn Qayyim was of the opinion that Ihe

rulings are made based on the effective ~ifa and the '·il/u.

The Qur'an adopts a number of approaches in revealing the ''il/u of its rulings.

It does sa in five ways.J5 They are: firstly, the Qur'an mentions specilic condilion

(lVa~fan; which requires specifie rulings or punishmcnts. This suggcsts that this ruling

or punishment is applicable whenever such condition exists (fUYUJ7ullllU ui-siillli" mlllU

lliidlla al-/;Jukm yudüru ma'a diliilika al-lVa,çfi "ynumii lVujidu). Examples of Ihis Iype

•
include: Q. 24: 2, "The adulterer and the adulteress, scourge ye eaeh one of them

(with) a hundred stripes....;" Q. 5: 38, "As for the Ihief, bath male and femalc, cut oiT

their hands. It is the reward of their own deeds, an exemplary punishment from Allah;"

Q. 4 : lOI, "And when ye go forth in the land, it is no sin for you ta curtail (your) I!

worship...." The second method of revealing an 'il/a is the use of the causal article in

the Qur'an rulings (maqrünan bi /;Jurfi al-sababiyyull), preceding or following those

rulings. References include: Q. 4: 160, "Because of the.wrongdoing of the Jews We

':-:::~~=::'--::::.-----
forbade them good things which were (before) made lawful unto them .... ";'Q. 22: 39 ,

\\
1\
Il
(:-----------

33 Ibid., pp. 195-6.

'i
i,i

34 Ibid., p. 196. Ibn Qayyim mentions several examples of 'illa of rulings

which are stated and indicated in the Qur'an and in the Sunna. See Ibid., pp. 197-198.

• 35 Mul}ammad MU~laffi aI-Shalabi, Ta'lil ul-A/;Jkiim (Cairo: Malba'at al-Azhar,

1947), pp. 14-5.
 82

•
"Sanction is given unto those who fight because they have been wronged; "36.

Thirdly, the Qur'an sometimes uses obligations as a means to purity and virtue. An

example being Q. 24: 30 • "Tell the believing men to lower their gaze and be modest.

That is purer for them....." Fourthly, the Qur'an also sometimes gives the 'illa of the

ruling it states by using I)urüf a/-ta'/ï/ (the article which shows an 'ilIa) such as in Q.

59: 7. "That which Allah giveth as spoil unto His messenger from the people of the

townships. it is for Allah and His messenger and for the nearer of kin and the orphans

and the needy and the wayfarer, (in order) that it become not a commodity between the

rich among you...." Fifthly, the Qur'an frequently mentions the mlJ$/aI)a of a ruling in

an obligation or a commando and the maf.!3da in a prohibition. ior instance, Q. 5: 90.

"... Strong drink and games of chance and idols and divining arrows are only an

infamy of Satan's handiwork. Leave it aside in order that ye may succeed. Satan

seeketh only to cast among you enmity and hatred by means of strong drink and games

• of chance, and to turn you from remembrance of Allah and from (His) worship. Will

ye then have done?"

The Prophet Mu~ammad, as the messenger of God. has the duty of reporting

and spreading,the message of God to mankind;37 in addition. he is required to provide

, ,

a supplementary explanation of that mess:lge,38 Whilè attending to this dutY, the

'."" "-

Prophet sometimes, explained the cause of a ruling. This commentary would

, aIse be
followed by an explanation of the ma$/aI)a. in this life and the life to come, as the

resu)t of obeying the ruling. Pointing out the implications of following a ruling.

\1
315 Pickthall, The G/orious Qur'iin. p. 343.

37 See Q~;5: 67, "0 Messenger! Make known that which hath been reveaIed
unto thee from thy Lord ...." and Q. 42: 48, "... Thine is only ta convey (the message).
" "
,-,

•
~

38 See Q. 16: 44, "... that thou mayst explain ta mankind that which hath Jlen
revealed for them....." /
•
ma$laba is the method by which the Prophet explained the Shari'a. One example is
that, a report l'rom al-Bukhari, quoting Ibn Mas'ud. describing that. "We wen.' young

people, one day, together with the Prophet, and we did not have anything 10 do l'or

earning the life, and the Prophet then said, '0, ail young people, those of you who can

effort for the married life, they got ta get nmrriage, sincc nmn'iage can control the

eyesight and protect the life l'rom bad desire; however, for those who couId not do

sueh effort, they are reeommended to perform fast for fast can control the desire." This

tradition follows the classie example of explaining a suggestion painting out the

positive implications that result. The cilla of marl'Îage is controlling one's perspective

and preventing detrimental sexual yearnings. However, if marriage is undesi1'llblc for

any reason, the Prophet suggested a means to control these mental and physical

distractions: fasting. 39

After the death of the Prophet. the Companions looked to the Qur'un and thé.

Sunna for a framework of living. However, since they faced new problems, they weI'''
':-.'
forced to consider new rulings. They tried to apply the ciJal of the rulings stated in the

Qur'an and the l:Iadilh; when necessary, the Companions tried to widen the application

of the cilla to the new cases without contradicting the na,ç$. They did this, with the Iirll1

conviction thatthe Sharïca is an eter'.lal guideline which dcals with the preservation of

the ma$laba of humim beings. Moreover, they also believed that the Sharï'a is not a

rigid rule book which would put mankind into unsolvable difficulties.4U

Based on this understanding, the Companions used various methods to derive

rulings or issue fatwiis for novel cases. They sometimes based their fatwiis on an cilla

stated in the Qur'an or the l:Iadilh. On other occasions, they took the rulings stated in
l'
,-,
1:::;;;'.
"\'1:\'
39 Shalabï, Taclil al-A1)kiim, p. 29.

• 40 Ibid., p. 35;,
 84

•
the na~~ and, from them, determined the cjJ}a. From this cjJ}a, they could widen the

scope of the rulings and apply them to new cases. In several cases, they came to

dccisions which werc dcemed to be contradictory to the na~~. For these situations, they

would conducl a serious investigation and, after much deliberation, wouId decide that

the cilla did not complement the case at hand. The Companions would then

accommodate the cjJ}a for a proper ruling. 41

An example of this stylc of accommodation was the delay or eancellation of a

punishment for a crime committed while in battle. In these cases, it was reasoned that

punishment might cause desertion of treason. Ibn Qayyim quotes a report from SaCid

ibn Man~ür from the authority of Al:twa~ ibn I;lakim from his father, saying that 'Umar

wrote a letter to his army in a battle telling that, "the commander of a troop and the

raiding party should not carry out the 1)add (punishment) to those who commit any

crime during the war until the former find a good way to do so; so that the Satan could

• not influence the latter to join the enemy." The Prophet himself is reported to have

prohibited people from amputating hands of thief during war.42

ln discussing the postponement of 1)add, Ibn Qayyim states that most cases

involve extenuating circumstances. The action in question might actually be beneficial

for the umma. Or, as stated earlier, punishment might force recipients to apostate or

des,'r! to the enemy's camp. The postponement of 1)add for a reasonable cilla, Ibn
, '

Qayyim contends, is recognized by the Shari'a.43

41 Ibid.

42 Ibn Qayyim, ICliïm al-MuwaqqiCjn, vol. 3, p. I7.

43 Ibn Qayyim mentions the examples of postponing 1)add which are

rccognized by the Shari'a, such as postponing the 1)add of those who are in pregnant,
or in the period of suckling babies (al-murçli'J, or from those who are sick. These are

•
for the ma$la1)a of the individuais; and it will be more acceptable and reasonable if the
postponing of the 1)add is carried out for thecma$la1)a of Islam and the Muslims in
g~neral. See Ibid., p. 18.
• There are incidences of the Companions deriving an "ilI" l'rom lhe

Specifieally, 'Umar created an "ilIII in implementing a til/lvif against a woman who.

with the help of an accomplice. murdered her husband's son. Ibn Qayyim reports that
IW~~.

'Umar, based on the 'illa he derived from the ml~~. judged both the wili: and her boy
friend with qi~ii~.44

2. Ibn Qayyim and Ma$la.(la

From the arguments discussed in the previous section we can eonclude thal Ibn

Qayyim's malleable nature of fatwii is founded on the idea of a changeable ''illa. Other

In regard to the cilla of this ease, Shalabï seems to agree with Ibn Qayyim's
viewpoints by afftrming that, this kind of cillii in fact does not contradict the na~~. the
qiyiis, and even the ijmii', since, according to him, nothing with this 'ill" cxcept
postponing the execution of the 1)add as the ma~la1)a is preponderant with it, or the
prevention of returning the person who is punished by the (wdd to his pervious belief

• or his association with the enemy, which in fact couId be achieved by postponing slleh
1)add. Another important example concerning the change of the fatwii following the
ehange of cilla is a fatwii of 'Umar regarding the abolishment of a share of the alms
(zakât) given ta those whose hearts are to be reconciled as reqllired by the Qur'an (Q.
9: 60). The Prophet used to give this share to certain chief persons of the Arabs in
arder ta attract them to embraee Islam or to prevent them l'rom doing harm to the
Mlislims. This share was given also ta the new Mlislims so that they might renmin
steadfast in Islam. 'Umar, however, is reported to have abolished slleh share, since he
realized that the cilla of giving this share to the niu'allamn, namely ta strengthen Islam
eeased as the conditions ehanged, and this share therefore, aecording to hi m, also
ceased ta be valid. 'Umar's action seems apparently contradictory to the Qur'an. But,
in faet, he considered the situation and followed the spirit of the Qur'anic injunction.
His personal judgment led him ta decide that even il; the Prophet had li ved in similar
conditions, he would have done the same. And this decision of 'Umar, according ta
Shalabï, is an application of the concept of the change of rules following the change of
the ma~lal)a which was practiced by the Companions. See Shalabï, TacliJ al-A(lkiim, p.
37-8; cf. Ahmad Hasan, "Early Modes of Ijtihiid, " p. 50.

44 Ibn Qayyim, Icliim al-Muwaqqi'ïn, vol. l, p. 213. Regarding this case,

Shalabï gives further explanation, saying that, although the Qur'an states that the
punishment of qi~ii~ is only to be applied for olle by one, persan by person equally and
similarly, the implication of the cilla of the qi~~ is the prevention from killing people,
which is, in fact, one of the purpose of the tashr;', and when a collective killers'are not

•
to be punished with qi~~ for killing a man, they would continue doing this bad deed;
and therefore, it is by the application of the qi~â~ the crime of mUfder donc by either
individually or collectively can be prevented. See Shalabï, TacliJ al-A1)kiim, p. 68.
• factors contributing to this fluidily are the flexible application 01 ,,,,' Shari'a, as weil

the well-accepted writings and /:ltlV.ïs of 'Umar These arglllllents, in Ibn Qayyim's

opinion, have their basis in the preservation of the IlliJ~/'I{liJ of human beings which is.
'IS

in facto the objective and the basis of the Sharï'a. Thus. the lll'I,~/'I{liJ is. in fal·t. the

main urgument of Ibn Qayyim for tt.c changing nature of the /:ltll'iÏ.

Discussion of the ma~/aQlI as the basis of the Sharï'a and its ''il/'I has been

indulged by many jurists from various schools. These jurisls wrote on the objec:iv.:s of

the Shurï'a as weil as the causes (lIsMb) for i:.; establishment. These jurists include the

Shafi'ite al-'Izz ibn 'Abd al-Salam, the l;Iar.balite Ibn Qayyim al-Jmvziyya, the

Malikite Abü Is!Jaq al-Sha\ibï, and others.45

Ma!Jma~anï believes that Ibn Qayyim al-Jawziyya provided the best delinition

for the purposes of tbe Shurï'a.46 According to Ibn Qayyim,

• The foundation of the Sharï'a is wisdom and the safeguurding of the mll~iÏJib of
the people in this world and the next. ·In its entirety it is justice, merey and
wisdom. Every rule which transcends justice to tyrunny, mercy to its opposite,
the good to evil, and wisdom to triviality does not belong to the Sharï'a although
it might have been introduced therein by implication.47 •

Ibn Qayyim asserts that the Shurï'a is a dispensation of God's justice and mercy

to His people. According to him, every aspeet of life,' nutrition, medicine, light,

recuperation and virtue is made possible by the Shurï'a. Every possible positive feature

of life is derived from the Shurï'a, while, on the other hand, misfortune can be

explained through misapplying the Shurï'a. Ibn Qayyim concludes that the Shurï'a,

45 Subhï Mahmasanï, Fa/safat a/- Tashrj' fi a/-Is/iim (Beirut: Dar al-Kashshaf

li al-Nashr wa aI-Tibiï'a ~a al-Tawzï', 1952}, pp. 1'49-150.

46 Ma!)ma.5anï, Fa/safat a/-Tashrj', p. 150.

47 Ibn Qayyim, l'/iim a/-Muwaqqi'in, vol. 3, p. 14; cf. Ma!Jm~anï, Fasafat a/-

• Tashrj' fi a/-Is/iim, English version, tr. Farhat J. Ziadeh (Leiden: EJ. Brill, 1961,
1961), p. 105.
 87

which God entrusted His Prophel to transmit, is the pillar of the world and the key to

succcss and happiness in this world and in the life to come.48

Ibn Khaldun's Muqaddima states that, "The conditions, customs and sects of

the world and nations do not continue according to any $pecific pattern or stable

program. There is always change from time to time and from one condition to another.

Inasmuch as this appHes to persons, times, and provinces, it applies Iikewise to

countries, ages and states. Such is God's order amongst His creatures."49 Basically, Ibn

Khaldun is introducing the concept of society inevitably altering. While crediting thal

the ma~Ja~w of the people as the basis of the Shariea, it is necessary and reasonable,

says Ma~ma-5ânï, lhat the rulings of the SharIca undergo changes to suit the changing

times. These rulings have 10 affect the CUITent social organization and environment,50

Based on this tine of argument, Ibn Qayyim \Vas therefore correct when he said that

"the fatwa should change with the change in times, places, conditions, intentions and

customs. 1I Furthermore~ he was also right when he underscored this clear fact by

saying, "Ignorance of this fact has resulted in grievous injustices 10 the SharIca, and

has caused m~ny difficulties, hardships, and sheer impossibilities,ulthough ft is known

" '.

that the noble SharIea, which serves the highest ma$la.Qa of mankind, would not

sanction such results."51

Regarding the Curf(cuslom), Ibn Qayyim contends that the curfshould be taken
\,

ioto consideration while issuing a faava. He even states that il is ah obligation for a
,,

....}J...
'7,1
,/(' ,48 Ibn Qayyim, ]Cliim al-MuwnqqiCfn. vol. 3, pp. 14-5.

49 Ibn Khaldun, Muqaddima, ed.,cAIï cAbd al-Wal.1id Wati, 2 vols. (Cairo: Dar
Nah~at Mi~r)i al-Tabci al-Nashr, 1979), vol. l, p. 320.
;' c

~~\ 50 Ma~ma~aoI, Fa/salat al-TashrIC, p. 151 .

.
'
, ,

51 Ibn Qayyim, ]Cliim al-MuwaqqjCin, vol. 3, p. 14.

• muftï to consider the '"urt of a community while issuing a nUll'if. since eonsidering Ihe
'"urt relates very much to the prcservaticn of the IIW~hllw of a eonullunity.51 The

change of '"urt of a community will lead to changing Ii/Cll'iI as weil. This is another

reason dted by Ibn Qayyim for the changing nature of the Ii/ClI'iI.

On the basis of the fact that the ma~hllw is the cause ('ïhli) and the basis of the

rules, and the former is subject to cl-tange following the change of times. places and

conditions, one principle necessarily follows, that is. if the causes ('I/-'·ilal) change or

disappear, rules based upon them must change or cease. The jurists created a legal

maxim concerning this faet which says. "A Shari'a rule based upon a cause survives or

ceases with it (inna .li-Qukm al-shar<i al-mabni '"al.I 'ïllalin yadûru /lw"a 'ïllmihi

wujûdan wa Cadaman). "53 Hence, a Shari'a rule is based upon its cause; in other words,
when the cause disappears, the ruling disappears with il.

• Ibn Qayyim cites several cases where the falwli and ijliluld have been modilied
\'.
"
in this regard. BefNe the time of 'Umar, if a man rcpudiated his wife thrce times on

one particular occasion, it was considered as only one declaration. However, 'Umar

ordered that if three such repudiations were made, they should each be considcrcd us

separate viable declarations which make the rcpudiation irrcvocable. The reason wus

that 'Umar noticed that the people were using the declaration lightly and irrcsponsibly,

hence, he wanted to punish this laxity and to deter them l'rom rcsorting to this bud

habit, and by doing this, he perceived, the ma/ilaQa couId be maintaincd. 54 Ibn Qayyim
,-:"<-,

52 See pp. 43-4, above.

53 Mal;1mll(iani, Falsarat al-Tashri', p. 152.

• 54 Ibn Qayyim, ['/lim al-Muwaqqi'in, vol. 3, pp. 41-52.

l' "
'1
\

1\, •
 89

•
,hen asserts that this example of case shows how a farwii changed based on the ('han~e

of time. 55

Another example is concerning the punishment for th"fl. According to the

Sharï'a. the punishment for the ft is the cutting off uf tht; thk:fs hane!. This is provided

for thus: "As for the thief. both male and femalc, eut off their hands" (Q. 5: 38). The

Sunna of the Prophet endorsed this rule in word and deed. 'Umar, however, suspended

this punishment in the Year of Famine because of necessity and in order that people

may keep alive. And many jurists followed this rule. 56

Ibn Qayyim continues his list of examples by citing a story he had heard from

his teacher, Ibn Taimiyya. Ibn Taimiyya accounted that, "1 passed with sorne of my

companions in the days of the Tartars by a group of them drinking alcohol. One of my

companions wished to reprimand them, but 1 prevented him from doing so and said,

• 'God has prohibited strong drinks because they divert people away from God and

prayer; ~ut
,
strong drinks merely divert these people from killing, capture of children

and plunder of property; 50 (eave them alone'."57 Like 'Umar, Ibn Taimiyya

appreciated the potential danger of enforcing the Sharï'a on a unique situation, and he

therefore applied the legal maxim of choosing the lesier evill harmfu!.
,

Among the examples raised by Ibn Qayyim concerning a fatwii follows the

"urfis that, when smneone takes an oath by saying that "1 swear not to ridt' an animal

(diïbba)." The application of his declaration should correspond to the 'urf J)1
his place.

If the 'urI of the place applies the meaning of diibba to a camel, he would not be

55 Ibid., 52.

•
56 Ibid., pp. 22-3.

57 Ibid., p. 16.
 <JO

• considcrcd as brcaking his oatb if he rides a horse. or other animais olher than came\.

And if the '·urfchunge. the application of his oath follows the change of the "urt 5S

From the above discussion on Ibn Qayyim's views conccl11ing the change of

the fatwlÎ, cne can conclude that there arc certain factors that nec.': to b,' eonsiüered
when issuing a tiu:.v:T. They arc: the 'illa of a ruling. the lll;l~la!U1 as the goal of a

ruling, and the 'uri: Ail these factors can be altered by time and ehanging social

conditions. On the basis of this fact, Ibn Qayyim, who maintains thm in issuing a lilCll'il

one should take the <illa, the ma$la/.la, and the <uriïnto consideration, 'Isserts that tbe

fatwii should change following the change of timcs and conditions. Indced,ibn
Qayyim is a scholar who contributed greatly to the rulings of subsequent lllulèïs. He

did 50 by offe~ing a mean5 by whirh,. muftïs could offer accuratc i;l/wiis whilc

preserving the intc;,rity of the Sharï'a.

.
'.'
.

•
li

• 58 Ibn Qayyim, l'liim al-Muwaqqi'ïn, vol. 3, p. 62.

•
CONCLUSION

Ibn Qayyim's concentration on the fatwii is partially explaincd by his insistencc

that issuing lil/wiis is an important religious duty. This duty, essentially part of the

transmission of the Sharï'a, was pracliced by the Prophet, the Companions, the

Succcssors, and the muftis who came after them. However, Ibn Qayyim felt lhal

liuw:Is issued in respect to Nyal were distorted in scope. Hence, his l'liim al-
MUVlaqqÎ'ïll was written as an attempt to redress this concern. By re-examining the
raIe of the fatwiis on {lÎyal, Ibn Qayyim hoped to re-illterpret the institution of the

fatwii as a whole. This study of his l'liim reveals that l':ln Qayyim's condemnation of

fatwiis on /.1iyal was essentially because of his objections to such fatwiis since these

fatwiis ignol'e the viable sources of the fatwii, the procedure of issuing it; such as
taking the intention, the goal or the end of the Shari'a into consideration while issuing

a Jàtwii. Indeed, he fclt that, for the most part, fatwiis on /.1iyal were made to appear as

•
l:

if they were in conformity with the Shari'a, while in fact they only observed ilS

external format.

In his discussion, Ibn Qayyim lists a number of criteria that are necessary for a

valid fatwii. These criteria include the qualifications of a mufti, such as his ability to

conduct ijtilliid; the ~iable sour~es for a fatwii, i.. e. the Qur'lin, the Sunna of the
1,\ •

Prophet and the fatwiis of Ihe'Companions; and the manner adopted by a mufti while
~ ~.

issuing a fatwii. A mulèï, for instance, must !lave the intention of issuintta làtwii that
.' . (1',
conforms to 'both the outer' and ,the inner spirit of the Sharï'a. Ibn Qayyim's
" 1.:'·
understanding of these criteria seems toC have been deeply influenced by the works of
c'

previous scholars, such as the work of Ibn ~allil), particularly the latter's views

concerning the qualifications and classifications of a mufti.

•
• In Ibn Qayyim's opinion, the Qur'iin, the Sunna of the Prophet and the /;1111"1/:'

of the Companions, are the reliable sources on which the Illu/ii" should rely. Not

surprisingly, Ibn Qayyim's blind acceptance of the Companions' /11111';)" camc under

atlack sincc he did not allow for the possibility of human error in these mlings. lndccd,

their fa(l\';)s are rendered more questionable if one considers that a number ofcascs

were heavity disputed among the Companions who at times hcld different opinions

amongst themselves. Ibn Qayyim qualifies this discrepancy by pointing out that many

cases heId a degree of tmth; however, the most reliable fàll\'ii was the one closest to

Ibn Qayyim's notoriety is partially explained by his re-interpretution of /1111\'<Ï.'

issu6d in matters of 1)iyal. Ibn Qayyim argues that fàMas dealing with (liyaJ have

indirectly altered the whole phenomena of fallVff. Specifically, he interprets (liyaJ as

•
ideas antithecal to those of the Qur'ân and the Sunna. In coached language, proponents

of (liyaJ advocate actions and thoughts which subtly bypass the regulations of the

Sharï'a. While subscribing to the physical text of the Shari'a, the authors of (liyaJ

ignore the purpose and the end of the Sharï'a, as weil as the inncr pari of it, upon

which Ibn Qayyim in fact put the emphasis in judging a fallVii to be lawful or

unlawfuI. Unfortunately, sorne of Ibn Qayyim's arguments in disproving the (liyaJ

seem vague and amorphous, and his atlempts to question the inner motive of an author

of (liyaJ is particularly questionable.

:'
, J, /,-:~~:
Ibn Qayyim, however, realizes that somé· novel cases will arise which cannot

be solved except through 1)iyaJ. In accepting the use of ~JiyaJ in these specifie cases,

Ibn Qayyim insists thp.l certain specifications must be met. Firstly, when employing

1)iyaJ, the author of 1)iyaJ should have solid intentions. This \~hould be ~~pplemented by

a ruling which does not contradict the na$$, or the fallVas d~ the Companions. ~

• c..
 93

•
Ibn Qayyim tben tackles the dynamic esscnce of the fatwii by e:<ploring its

underlying basis: ijtibiid. ljtibiid, Ibn Qayyim argues, is intricately connccted with the

surrounding context of a changing society. His argument for the changeable nature of

ijtibiid are strongly influenced by 'Umar ibn al-Khallâb's risiiJa and fatwiis. Ibn
Qayyim then examines one of the critical features of ijtibiid, namely qiyiis, His

concept of qiyiis, besides having its basis on the risJ1a of 'Umar, also draws upon the

rationale of the Qur'ân and the Sunna in pre~'~ntillg precepts. According to Ibn

Qayyim, God, the ShUri', usually mentions the cill'l. and the ~ifa of each ruling stated in

the Qur'ân. Ibn Qayyim maintains that the Sharï'a ons a common feature of equa/izing

two similar things, connecting one to another and considering both of them in the

same status and ruling on the basis they share a similar cil/a. The cilla of the Sharï'a

mostly consists of the ma~Ja/.!a, which is the purpose and the end of the Sharï'a itself.

Ih~ Qayyim believes that the ma~Ja/.!a should a/ways be eonsidered while

• understanding or deriving a ruling. Since the ma~/a/.!a, as weil as the cilla, are subjeet

to change over time, the fatwiis themselves must be accommodated. By this assertion,

Ibn Qayyim provided a means for muras to issue different fatwiis conceming similar

cases, in differenttimes and places. Thus, Ibn Qayyim demonstrates the adaptability of

Islamic law which is indebted much l'rom the activity of muftis. Hallaq, in his article

concerning the malter, has demonstrated how the activities of muftïs have conlributed

a lot in the development of Islamic laws.\

Fina/ly, Ibn Qayyim is somewhat of an oddity among Islamic jurists. Although

he can be considered a sa1afl, due to his insistence on the usage of the Qur'an, the

Sunna of the Prophet and the fatwiis of the Companions, yet, he can also be labeled a

refomler. This is due to his teinterpretation of ijtihiid, particularly the .f.,~iï, as an

• 1 See for instance his "From Fatwas to Furü~', pp, 29-65, .

 l)·1

•
adaptable institution. Thus. his work in this regard. the reformulmion of the t'UII':i. has

earned Ibn Qayyim as one of the reformers of the fourleenth century.1

• 2 Anderson, Islamic Law in Africa, p. 17.

•
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