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11-15-2011, 06:48 PM
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 The mu'tamad in the Maliki Madhab
 Shaykh Hamza Maqbul: Wa'alaykumussalam wa Rahmatullahi wa Barakatuhu Firstly, let me congratulate all parties involved for this thread which upon cursory glance seems to have turned into a total fiasco... The Mālikī school’s viewpoint: In the concise commentary (al-Sharḥ al-Ṣaghīr) of al-Dardīr entitled, Awḍaḥ al-Masālik ilā Madhhab Mālik, the [author notes that] “the ʿawra of a free woman in relation to an unrelated man [...] is her entire body, except the face and hands. As for these two, they are not a part of the ʿawra.” Ṣāwī adds in his marginal gloss, Thus it is permissible to look at those two [parts of the body], and there is no difference whether one sees the palms or the backs [of the hands], as long as there is no seeking or feeling [sexual] pleasure in so doing. If there is, then it is impermissible [to look at either the hands or the face]. As to whether [a man’s feeling sexual pleasure] obligates [a woman] to cover her hands and face, that is the position of Ibn Marzūq who states that it is the best known opinion (mashhūr) of the madhhab. [The contrary opinion that a woman] is not obliged to do so, but rather that the man must lower his gaze, is the corollary of what Mawwāq narrates from [Qāḍī] ʿIyyāḍ. Zarrūq notes in the Waghlīsiyya in the case of an attractive woman, that she is obligated to cover her face, but for others it is merely recommended. Note that nowhere in that tract does the word makruh even come up. Interestingly enough, the tract does a fairly accurate job summing up the position of the madhhab. As a way of finding an excuse for the brother, all I can venture is perhaps he meant to say that it is makruh for a woman to pray with the niqab on, or has confused the issue of praying while in niqab, with niqab in general. The beard issue also goes some strange places. The fact of the matter is that keeping a minimum fist-length beard is FARDH. Cutting it shorter than that is HARAM. Read the Risalah or Khalil. They are very explicit on this matter. I find the most irritating part of this whole thread the totally ridiculous claim that there is no tarjih in the madhhab, and all of its opinions are good for the picking by a "qualified" mufti or scholar... THE RELIED UPON POSITIONS OF THE MADHHAB ARE GATHERED AND REPORTED IN THE MUKHTASAR KHALIL. That is a fact. As for the one who seems to be championing the position opposed to that, I have met most of the people that he claims to have studied with (http://www.sunniforum.com/forum/show...t=45832&page=5) with the exception of one. They all accept Khalil to be the the collection of the relied upon opinions of the madhhab. Particularly interesting is the taking of the name of Sidi Rami Nsour, who I know personally well enough and I have cc'd on this email. He is welcome to shoot me down if I am wrong on any of the information I convey here. He has related to me on more than one occasion his frustration with people who "pick and chose" within the madhhab and don't take the relied upon positions, which are reported in Khalil. At any rate, Allah knows best. [Shaykh] Hamzah [Maqbul] 
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11-15-2011, 06:52 PM
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Maliki Scholars: The Obligation of Following The Mashoor When Giving Fatwa By Ustadh Abdus Shakur Brooks The famous scholar and mufti Shaykh ‘Ulaysh (1299 A.H) mentions in his well-known book of fatwa titled Fath ul-‘Aliy Al-Malik fi’l-fatwa ‘ala Madhhab al-Imam Malik, in which he quotes al-Maziri ( 536 A.H) after establishing that a person cannot give a fatwa contrary to the mashoor : …..أن العدول عن المشهور أو ما رجحه شيوخ المذهب الملكى من ضعف العلم و قلة الدين “Verily the abandonment of following the mashoor or what the authoritative scholars of the madhhab [ such as Ibn Rushd -520 A.H- and others like him] have considered as al- rajih [the sound opinion] is an example of the decadence of knowledge and religious integrity.” In the same book Shaykh ‘Ulaysh quotes al-Baji al-Andalusi (403 A.H) who was a prominent scholar of the madhhab and famous for his commentary on the Muwatta’ of Imam Malik, saying: وهذا لا خلاف فيه بين المسلين ممن يعتد به في الإجماع في منع الفتيا بغير المشهور والمقلد مثله “And there is no difference of opinion, between the scholars, whose opinions are relied upon for consensus, about the prohibition of giving fatwa contrary to the mashoor. And the same goes for the muqallid.” Shaykh ‘Ulaysh also quotes Ibn Abi Jamrah (699 A.H): كذا يذكر عن ابن أبي جمرة أنه لايحل أن يفتى في دين الله إلا بالمشهور. “And likewise it is mentioned from Ibn Abu Jamrah that it is not permissible to give fatwa in the religion of Allah except by the mashoor.” Shaykh ‘Ulaysh also mentions in his book al-Ajwibah: إذ يجب العمل بالراجح والمشهور مذهبنا, وإن لم نعلم دليله ولا قوّته ولا الاتفاق عليه, فإنه – أي ما ذكر من الراحج أو المشهور- حجة علينا ما دمنا في ربقة التقليد. قال ونظْرُنا في الأدلة والاتفاق والاختلاف فضول, إذ وظيفتنا مخض التقليد واتّباع الراجح أو المشهور, والله سنحانه وتعالى أعلم. “…. For one is obligated to follow in one’s practice [the opinion] that is rajih, or mashoor in our madhhab [that is, the Maliki madhhab] even if we do not know the proof for that opinion, nor the strength of the opinion nor the fact that there is agreement, for it [that is, the rajih, or the mashhur] is the compelling authority over us as long as we are tied with the tether of taqlid. Our speculation (nazr) based on the proofs and on the agreement [of the fuqaha] and their disagreement is meddling, for our job is pure taqlid, and to follow the rajih, or the mashhur. Allah, Whom I declare to be Perfect beyond all defects and Exalted beyond all comparison, knows best.” Shaykh ‘Ali al-Sa‘idi al-‘Adawi (1189 A.H), the author of the famous margin-commentary called Hashiyah‘ala Kifayat ul-Talib al-Rabbani: وأما إذا كان أحدهما [أي القولان] مشهورا, فيجب العمل بالمشهور, ولا يجوز العمل بالضعيف, ولو في خاصة نفسه. “However, if one of them ,of two contradictory opinions, is mashoor, then one is obligated to follow, in one’s practice, the mashoor, and it is not permissible to follow the weak opinion in one’s own practice.” Imam al-Shatibi ( 790 A.H) in his celebrated work entitled al-Muwafaqat quotes al-Maziri – one of the most authoritative Maliki scholars in his time (as well as one of the scholars whom Shaykh Khalil relied upon in his Mukhtasar) as saying: ولست ممن يحمل الناس على غير المعروف المشهور من مذهب مالك وأصحابه؛ لأن الورع قل، بل كاد يعدم، والتحفظ على الدينات كذلك، وكثرت الشهوات، وكثر من يدعى العلم ويتجاسر على الفقوى فيه “I am not one of those who give people fatwa other than what is known to be the mashoor opinion in Malik’s madhhab and that of his companions. That is because piety and god-fearfulness has deteriorated, indeed almost absolutely gone and likewise the preservation of religious practice .Vain desires are soaring; numerous are those who claim to be knowledgeable and give bold and reckless fatwa.” Seeing what the scholars have mentioned here, one should not be mislead into believing that contemporaries have the freedom to rule by the “weak opinion”unconditionally; meaning without it being a weak opinion that was acted upon by the mujtahids in fatwa within the school long before us (such as Ibn Rushd, Al-Maziri and others). Those weak opinions established by the mujtahids in fatwa take a new technical status called ” ما جرى به العمل ” which in general refers to “those weak options that are given preference/selected over the the mashoor by a mujtahid in fatwa within the school, for a particular existing reason, in a specific time and place, under a specific circumstance”. These issues are numbered within the school and does not apply to “any weak opinion” that a contemporary assumes to opt for in giving a fatwa. In fact the established protocol (as we have seen previously) is that a person who is not at the level of mujtihad in fatwa is not allowed to rule by a weak opinion, but rather their job is simply to transmit the mashoor opinion of the Maliki madhhab and have the wisdom to teach others how to apply it in a practical and meaning manner. We see in this article just a few of many renowned scholars of the school, throughout different centuries and different places, unified under this protocol. Yet in our times, when sacred knowledge is like an endangered species, we have those who assume they are independent of the protocols established by the competent predecessors whose knowledge has been undoubtedly attested for. As Al-Maziri puts it ” it is an example of the decadence of knowledge and religious integrity”.
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