A Rejoinder to: Fiqh for Minorities - A Source Methodology and Framework Approach part 2
Fiqh for Minorities: A Source Methodology and
Framework Approach by Mufti Muḥammad Haffejee was presented at the Southern African
Ulama Conference, Eswatini [30 September 2022 – 2 October 2022].
The objective of this paper was covered in part 1 of
the rejoinder. Hereunder, the discussion on the source of the ideas presented in
the paper will be dealt with, so as to gain a clearer picture of the ‘meaningful practice of a Fiqh for Minorities.’
Study the following lines from the paper:
1. ‘Although early scholars did not
recognize the Fiqh of minorities as an independent discipline
of Fiqh, this does not mean that its principles and objectives
have not always been there influencing their Fatāwā and judgements.’
2. ‘Rather, it is to provide a guided
openness to carefully adopt, exercise, and even give expression
to principles such as:- Al-I’tibār bimaa Ya’ool, Iqtidā al-naṣ,
Istiḥsān, ‘Urf, Ḍarūrah and Ḥājah, Raf’ul Ḥaraj, Umūmul Balwā, Precaution and
Maskūt ‘Anhu fi Ẓāhir al-riwāyah or Maskūt ‘Anhu fil Madh-hab in order to
arrive at verdicts…’
We understand that the writer eagerly states an
intention to ‘give expression’ to the principles
that have been selected for the framework, and in the process, cast aside the principles
that are part and parcel of classical Fiqh.
We find it unsurprising that great ‘Ulamā’ of the past
had already dealt with this issue and responded quite adequately to it. In
Maqālāt al-Kawtharī, pp. 191-202, ‘Allāmah Muḥammad Zāhid Al-Kawtharī raḥimahullāh
[1371 AH] had furnished silencing responses and rebuttals to the very same
ideologies being presented today, in the form of ‘Fiqh for Minorities’. We are
privileged to present portions of his work hereunder. ‘Ulamā’ and Muftīn can
present the full arguments to their students and the public.
‘A Muslim will deeply regret the presence of people
amongst the Muslims, who are compelled by the lust for publicity, who pretend
to substitute the Fuqahā’ of the initial era, and who try to invent methods by which
they distort the words, and make the rulings of the clear Sharī’ah and the
clear way change with time, in order to gain proximity to those who have no
goodwill for Islām.
You see them saying, “We have ‘Urf, and it overpowers
the clear text (Naṣṣ). We have Maṣlaḥa[1],
and it also overpowers the clear text (Naṣṣ). We move with ‘Urf and Maṣlaḥa,
wherever they move. How many laws can change with this, even laws documented in
the Naṣṣ! How many foundations (or principles) of this nature do we have!”’
Further ahead, ‘Allāmah Muḥammad Zāhid Al-Kawtharī raḥimahullāh
says, “The one who says that the laws are based on the Maṣlaḥa, this means
expediency (Maṣlaḥa) related to the Sharī’ah. However, if he intends worldly Maṣlaḥa,
regardless of whether it is general or specific, or purely for good, or a
mixture that is dominated by either goodness or corruption, then there is no
basis for it in the eyes of a Muslim when it conflicts with a clear Shar’ī
text.’
‘The first person to open the door of this evil and
strife: the evil of rendering the Naṣṣ void, in terms of it opposing Maṣlaḥa
was An-Najm Sulaymān Ibn ‘Abdul Qawī At-Ṭūfī Al-Ḥanbalī. In the explanation of
the ḥadīth [لا ضرر ولا ضرار], he said,
“Indeed, consideration of the Maṣlaḥa will precede the clear text (Naṣṣ), as
well as consensus (ijmā’), when there is a conflict or contradiction.”
These
words are not a mistake from a scholar who has good intentions, nor can they
can be interpreted (otherwise). However, they are doors of fitnah that he
opened, intending evil and intending to spread sedition.
Ibn
Rajab Al-Ḥanbalī raḥimahullāh said about this person in Ṭabaqāt
Al-Ḥanābilah, ‘He had no expertise in ḥadīth, there was much confusion in his
words. He was a Shi’ite, deviant from the Sunnah. He lied and sinned in his
accusation upon Sayyidunā ‘Umar raḍiyallāhu ‘anhu regarding his forbidding
people from compiling ḥadīth. Some of our Mashāyikh said that he outwardly
repented and freed himself from Rafḍ whilst he was imprisoned. This was part
and parcel of his hypocrisy. This is because, during the latter part of his
life, he accompanied As-Sakākīnī in Madīnah, and he was the Shaykh of the Rāfiḍah.
He made poetry that included the swearing of Sayyidunā Abū Bakr raḍiyallāhu
‘anhu. This has been documented by Al-Maṭarrī, a scholar of ḥadīth and
historian.’
The reader should not be bothered by the unwary who
referred to him as Imām an-Najm At-Ṭūfī, because we are in an era wherein a
person who does not have the ability to be an Imām in the Masjid of his
locality is called ‘Al-Imām Al-Ḥujjah’.
This principle and all principles like it intend
nothing but eradication of the Sharī’ah. There is nothing in the practices of
the jurists amongst the Ṣaḥābah raḍiyallāhu ‘anhum that can be used as a basis
for the principle of abandoning the clear text (Naṣṣ) in favour of Maṣlaḥa. The
Maṣlaḥa is what the Sharī’ah clarifies and states as such.’
It seems like we are living through a case of ‘history
repeats itself’, albeit with an inflated and compounded level of sedition and
strife.
We hope in the mercy of Allāh Ta’ālā for acceptance
and protection from every form of harm or loss.
