Translated by Anas Hlayhel.

The original in Arabic by the author, full name Alawi bin Abdul-Qadir bin Mohamed bin Hadi as-Saqqaf, can be found here. His biography in Arabic can be found here.

The Question:

Is it confirmed that imam al-Shafi'i used to issue certain juridical responses (fatawa, sing. fatwa) in Iraq then after he moved to Egypt, he issued differing fatawa due to the change in culture between Egypt and Iraq. As a result, he had fatawa that suited the people of Iraq and fatawa that suited the people of Egypt? This is what a sheikh mentioned on a satellite channel and he used this act of al-Shafi'i to justify changing the fatwa following the change in locality!

The Answer:

By: Shaykh Alawi Abd al-Qadir al-Saqqaf

No, it is not confirmed that imam al-Shafi'i used to have one set of fatawa that suited the people of Iraq and another set of fatawa that suited the people of Egypt. Rather, what's established in the books of the al-Shafi'i juridical school is that al-Shafi'i used to have two juridical schools. One school was established in Iraq and is referred to as the “old school;” which his students there learnt from him and about which he wrote several books. Then, when he moved to Egypt stopping by Mecca, he met a number of scholars and narrators and he retracted many of his earlier opinions which he held in Iraq. This is what became known as the “new school.” At that time, those two schools were not known as the Iraqi school and the Egyptian school. It is said that this new school was formed shortly before his leaving Iraq for Mecca or at least before his leaving Mecca. However, what's settled is that he wrote it and firmly established it in Egypt. Therefore, the new school was not dependent upon whether it was in Egypt or Iraq.

In order to further prove this point, consider the following:

1. If the matter was simply providing fatawa suiting each locality, then he would not have ordered his students to stop writing from the books he composed in Iraq, nor would he have forbidden the people to narrate from those books. He used to say, “He is not forgiven who narrates from me the old [school]” (Cf. al-Bahr al-Muhit by az-Zarkashi, 4/584). Instead, he would have made for each locality the fatawa that suit it.

2. If the matter was like what those claimed then his students in Iraq would have used his old opinions. The reality though is contrary to that.

3. None of the leading scholars of the al-Shafi'i school, who are the most acquainted with his method, ever mentioned this reason [the change in juridical opinion was due to change in locality]. In fact, when some of them chose some of his old opinions, they didn't attribute them to al-Shafi'i. Rather, they chose those opinions because of the strength of their proofs, at least from their point of view.

4. The leading scholars of the al-Shafi'i school clearly stated that it's not permissible to follow the old school of al-Shafi'i, even if the follower is from Iraq. So, how can one claim that the reason for the change was the change of locality and the change of milieu?

5. If it's true that imam al-Shafi'i changed his school in Egypt because of the change in locality then his followers outside of Egypt would not have followed him. What's well known however, among students of knowledge, is that the leading Shafi'i scholars, wherever they are, even the people of Iraq, follow his new school which he founded in Egypt. Imam an-Nawawi said, “Any religious question that has two juridical answers by al-Shafi'i, one old and one new, then the new is the valid answer and should be acted upon.” (al-Majmoo', 1/66) He also said, “It is not to the mufti (one authorized to issue a juridical ruling) nor to the common man, who follow the school of al-Shafi'i, if there is a religious question that has two answers, to act upon the answer of his liking. Rather, in a situation where there are two answers, he should use the latter of the two.” (al-Majmoo', 1/68) It's worthy to note that he [an-Nawawi] did not make a distinction between the mufti in Iraq, the mufti in Egypt, and any other mufti anywhere else. What is so strange about this whole matter is that those who claim that al-Shafi'i changed his juridical opinions due to the change of people's customs and habits want, through this claim, to issue lenient fatawa even if it contradicts the evidence [found in the main sources]. Their claim in this is that al-Shafi'i issued more tolerant juridical opinions that suited the people of Egypt in order to make it easy on them. What these people do not realize is that his juridical opinions in Egypt are stricter than his juridical opinions in Iraq. In fact, his opinions in Iraq are closer to leniency and tolerance. On the other hand, he formulated his opinions in Egypt based on reservation. In addition, he abandoned the principle of masalih mursala [maximizing the interest of people when they're faced with a new situation over which the sources are silent]. No consideration is given to customs. All consideration is given to the text along with a complete allegiance to the literal meaning of the texts, as will become clear through some of the examples that I will cite shortly. In fact, there is not a single juridical issue which he [al-Shafi'i] changed his opinion about due to the change of circumstances between Iraq and Egypt. The burden of proof is upon the one who initiates the claim, and that's nearly impossible in this case.

Now, some examples of the fatawa that he issued in Egypt that were stricter than what he issued in Iraq, as is spread across the books of the al-Shafi'i school, are:

1. Using gold and silver vessels is makruh (discouraged) in the old school and haram (forbidden) in the new school.

2. Wiping on the khuff (leather sock) with holes. According to the old school, it's permissible as long as the hole is not big enough to prevent walking. According to the new school, it's not permissible if the hole exposes any part of the foot.

3. Forgetting to recite al-Fatiha. According to the old school, the recitation of al-Fatiha is no longer an obligation due to forgetfulness. According to the new school, the recitation of al-Fatiha remains an obligation despite forgetfulness.

4. Washing a vessel that has been licked by a dog. In the old school, it's not obligatory to wash it. In the new school, it has to be washed six times.

5. Washing a required body part out of order in wudu out of forgetfulness. In the old school, wudu is valid. In the new school, wudu is not valid.

6. Sleeping during the prayer. In the old school, it does not invalidate wudu. In the new school, it invalidates wudu.

7. The wife of the missing. In the old school, she waits four years from the time she stopped hearing from him. Then, she waits the idda [waiting period] of death which is four months and ten days. In the new school, she does not go through any idda nor does she get married again till she ascertains his death. So he adopted the easy opinion of Ibn Abbas in the old school while he adopted the strict opinion of Ali in the new school.

The examples are many and one can refer to them in the sources where they are likely to be found. What one will observe is that there is no effect of locality and culture on the difference between the two opinions of al-Shafi'i, the old and the new. Rather, the reason of the difference goes back to adding precision to his juridical school and fine-tuning it with legal evidence. His student, imam Ahmad bin Hanbal, was asked, “What's your opinion about the books of al-Shafi'i, are the books with the Iraqis more beloved to you or the books with the Egyptians?” He replied, “Read the books that he composed in Egypt, for he composed his books in Iraq without precision then he went to Egypt and wrote his books with precision” (al-Bayhaqi, Manaqib al-imam al-Shafi'i, 1/263). So, his students and those most acquainted with him attributed the reason for changing his juridical school to precision and accuracy. If culture or customs had any role, it would have been mentioned. So to claim that this is the reason is a statement devoid of truth and does not accord well with logical analysis. It can only be stated by one who is ignorant of these facts or by a person of desires. This does not mean that the faqih [scholar of Islamic law] cannot change his fatwa following a change of time or place. In fact, that is possible in the issues that are based on customs, benefits, and removing hardships. As to the issues that are based on authentic legal proofs, then its rulings are sound for all places and times. Allah knows best.

About The Author

Born and raised in Lebanon, Hlayhel began attending study circles at his local mosque when he was ten. He came to the United States at 17 and studied electrical engineering at the University of Houston. At its MSA, he met Sh Yasir Qadhi and worked together to raise Islamic awareness on campus. Hlayhel studied traditional sciences of Aqeedah (Islamic creed), Fiqh (Islamic law) and Nahw (Arabic grammar) under Sh Waleed Basyouni and Sh Waleed Idriss Meneese among others. After settling in Phoenix AZ, he worked tirelessly, in the capacity of a board member then a chairman, to revive the then dead AZ chapter of CAIR in order to face the growing Islamophobia in that state and to address the resulting civil right violations. Today, he's considered the second founder of a strong CAIR-AZ. In addition, Hlayhel is a part-time imam at the Islamic Center of the Northeast Valley in Phoenix, husband and father of four. His current topics of interest include positive Islam, youth coaching, and countering Islamophobia.

25 Responses

  1. Loga

    BarakAllah fiikum! A very commonly used argument/point, jazakAllah khier for the clarification.

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  2. Irfan

    as-salamu `alaikum

    Is the author of this piece the late Habib Abd al-Qadir al-Saqqaf who recently passed away?

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    • Anas Hlayhel

      wa alaikum assalaam,

      I’m not aware of Habib as-Saqqaf. The only other Saqqaf I’m aware of is Hassan as-Saqqaf, and he’s definitely different than Alawi as-Saqqaf :)

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    • Mustafa

      The author of this article is indeed the son of al-Qutb al-Habib `Abd al-Qadir al-Saqqaf (radiy Allah `anh).

      Jazak Allah khayran Shaykh Anas for translating. Could you possibly post (a link to) the Arabic?

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  3. Mr. Muslim

    Asalaamu Alaikum.

    Is this why in certain Fiqh books they mention the earlier and later opinion of Al-Shafi’i Rahimullah?

    Jazakh Allahu Khair.

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  4. Omar

    Egyptian Customs … for some reason I thought that meant the people that check your luggage at the airport and make you pay for expensive foreign goods.

    I have been reading too much Egyptian politics

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  5. Abu Rayyan

    Salams,

    Jazakallah for posting this article, brother Anas. It might also be a good idea to post the original link (in Arabic) from the Dorar.net website.

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  6. Curious Muslim

    He translated al-khuff as ‘leather socks’.

    Isn’t it any ‘footwear’?

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    • Anas Hlayhel

      As far as I’m aware, the original definition of Kuff is leather sock, though you may find some scholars expand that definition to other types of socks. But even in the Hadith of the Prophet, you find a distinction between Khuff (leather sock), Jawrab (other types of socks like from wool or cotton), and Na3l (sandals). For example, the Hadith of al-Mugheerah narrated by the 4 Sunan which says that the Prophet made wudu and wiped on his 2 Jawrabs and sandals. Also, in his Musannaf, ibn Abi Shayba has a chapter entitled, “the 2 Jawrabs are same in ruling as the 2 Khuf”, which shows that they’re different but have the same ruling.

      Off course, whether they have the same ruling or not is a different topic (maybe worthy of a blog on its own), but I think it’s clear in Fiqh literature that Khuff is a leather sock.

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  7. NurKhan

    It can only be stated by one who is ignorant of these facts or by a person of desires.

    I’ve read/heard hundreds of rebuttals by learned islamic scholars on the internet, and a lot of them end by accusing the other party of either 1) being ignorant or 2) following desires.

    Is this necessary? Does it add any strength to the merits of the argument?
    Is this part of Islamic/scholarly manners?

    Just wondering.

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    • elham

      Salam alaikum,

      Isn’t it that if a person does something wrong out of ignorance he is forgiven out Allah’s swt Mercy? So by that they (the scholars) are giving him the benefit of the doubt.

      But if he has knowledge of a fact but chooses to ignore it deliberately, then he is clearly following his desires and may be harming others by misleading them or causing confusion.

      There are certain Islamic manners to be followed ofcourse and our scholars ,may Allah protect them, are more aware of them. But I think when an issue needs to be clarified in a clear-cut and and un-ambiguous manner they just need to tell us like it is:)

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      • NurKhan

        Isn’t it that if a person does something wrong out of ignorance he is forgiven out Allah’s swt Mercy?

        Then why embarass the other person (in this case another scholar) publicly?

        But if he has knowledge of a fact but chooses to ignore it deliberately, then he is clearly following his desires

        Right. Are most issues black & white and clear-cut? So if someone does not agree with you and doesnt see the ‘facts’ the way you see them then you jump to judging their intentions by accusing them of ‘following desires’.

        There are certain Islamic manners to be followed ofcourse and our scholars ,may Allah protect them, are more aware of them

        Sorry, but I don’t agree. I’ve seen too much of this kind of attitude that young people are picking up on. We need to learn to treat each other with respect. The sunnah is to treat each other the way we would like to be treated. How would this scholar feel if he made a mistake and someone else said about him that he is ‘ignorant’ or ‘following desires’?

        Of course, issues need to be clarified. But stick to the issue. Don’t attack someone’s competency or intentions.

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      • elham

        ”Then why embarass the other person (in this case another scholar) publicly?”

        Who you do mean? I never stated that somebody/ scholar should embarrass someone publicly!

        ”Right. Are most issues black & white and clear-cut? So if someone does not agree with you and doesnt see the ‘facts’ the way you see them then you jump to judging their intentions by accusing them of ‘following desires’.”..

        ”How would this scholar feel if he made a mistake and someone else said about him that he is ‘ignorant’ or ‘following desires’?”

        Well, say if a hadith or an ayah IS clear-cut about an issue then why would someone want to ignore it ? The scholars that I see/listen to humbly accept each other’s corrections and reiterate that the Quran and Sunnah are more important than anybody’s views or opinions.
        Moreover I was merely trying to answer your open question and was not speaking about myself, so Inshallah there is no need to attack anyone.

        I think there could be one of two things when someone who is supposed to be Qualified, a scholar, misjudges.That ‘s my opinion . If a great scholar like Imam Shafi’ (ra) acknowledges his mistake and admits that he was ignorant of something ( and Allah swt is All- Knowing) after he was shown a hadith/evidence then it shouldn’t be a problem for us.

        ”We need to learn to treat each other with respect. The sunnah is to treat each other the way we would like to be treated.”

        Agree. Inshallah we practice the Sunnah as you say and return each others Salaams :)

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  8. Abu Ibrahim

    Assalamu alaykum wa rahmatullahi wa barakatuh,

    Jazak Allahu khayran for translating the piece. It seems that most of the scholars who have researched this issue meticulously agree with the conclusions of Shaykh Saqqaf.

    However, some have argued that although the Egyptian `urf was not the *main* cause for Imam Shafi`i changing his opinions, it did play a relatively minor role, and therefore it should not be negated altogether. For more on this, please see al-Qawasimi’s al-Madkhal ila Madhhab al-Imam al-Shafi`i (Dar al-Nafa’is, 2nd edition, p.307-309).

    Wallahu a`lam.

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  9. Shahzad

    Assalamu ‘alaikum,

    I think an important point is missing or needs clarification:

    There is a difference between “fatwa” and “hukum”. The examples the sheikh gave are clear-cut ahkaam from the Quran and Sunnah that local custom cannot change. For instance, using gold/silver or washing the utensil after a dog has licked from it are clearly defined in the texts. The reason why a scholar may change his ruling when moving from one region to another is because he has come across new ahadith or corroborating narrations which he did not have previosly. This explains why rulings of the various madhaahib are different: each scholar lived and travelled in different regions of the Muslim world and thus came across different ahadith.

    A fatwa however is a ruling often applied to a novel situation and may take into account local circumstances. An example could be whether to combine maghrib or isha in northern countries where the sun doesn’t set fully. I feel this article did not properly distinguish between these two terms and gives the impression that ALL rulings are written in stone without local adaptation.

    Another way of looking at this is that Islamic rulings are of two types: Non-changeable (muthaabit) and changeable (mutaghayyiraat). Non-changeable rulings imutable such as salat, tahaarah, etc. which are clearly defined for everyone at all times. Changeable rulings such as forms of government, dress, etc. are defined by general priciples in the Quran and Sunnah but details can be adapted to local custom.

    Allah knows best.

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  10. Saif

    May Allah have mercy on him and fill his grave with noor! With his and Dr. Israr’s deaths, the ummah has two of its gems.

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  11. Anas Hlayhel

    Brother Irfan and Mustafa,

    I don’t think the author is the son of Habib Abdul-Qadir as-Saqqaf who died recently.

    The full name of our author is Alawi bin Abdul-Qadir bin Mohamed bin Hadi as-Saqqaf

    The full name of the person you both are referring to is Abdul-Qadir bin Ahmad bin Abdur-Rahman as-Saqqaf.

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  12. Anas Hlayhel

    Abu Ibrahim and Shahzad,

    I think I agree with you both that the tone of the article was a bit too decisive. In fact, while translating, I felt the author could have been a bit more flexible allowing room for other factors (e.g. changes due to locality). I’m not sure if the author took the time to study each issue where Imam al-Shafi’i changed his opinion and made sure that change of locality was not a factor! Anyway, he seems to rely on strong statements from experts in al-Shafi’i school such as Imam an-Nawawi which affirm his opinion, and that may have made him make such bold conclusions and Allah knows best.

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  13. DawahIT

    Assalamu alaikum,

    JazakAllah khair. Very useful in understanding fiqh.


    dawahit.wordpress.com
    facebook: dawahit

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  14. Wael - IslamicSunrays.com

    This is very interesting and I don’t mean to open a can of worms, but this kind of thing is why I do not follow a particular madhhab. We see clearly from stories like this that the great Imams (may Allah have mercy on them) were fallible. They were limited by the knowledge that came to them, and even they were aware of that. They lived in times when travel was arduous and long-distance communication was nonexistent. Their access to authentic information was limited by the realities of their time. How many of their rulings would have been different if they had met this scholar, or heard that hadith, or read that book, or traveled to this city…

    I appreciate texts that give me the rulings of various Imams and scholars on a particular issue, along with their proofs and reasonings. Then I can read, and made a decision for myself which is most convincing.

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    • ashrafh

      @Wael, you have completely confused the difference between an Imam, and the maddhab that is named after him…they are not the same. The maddhab simply follows the usul of the Imam, and many of his views of course, but if the Imam did not have access to a certain hadith, and the Imams that followed his usul came into contact with that hadith and tradition, THEY CHANGED THE POSITION of the maddhab. Your statement stems from complete lack of knowledge, as there are multitudes of positions within each maddhab that are contrary to the position of the Imam.

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