A senior Mufti says that the 6 Shawwaal Fasts are Makrooh. He cites Imaam Abu Hanifah (Rahmatullah alayh) as proof for this view. Please comment.
Answer (Mujlisul Ulama):
The senior Mufti Sahib is short-sighted. His Ilm is superficial, hence he could muster up the audacity to decry a practice which is entrenched in the Math-hab since fourteen centuries. He did not stop to reflect on the fact that it is the practice of all our Akaabireen and of all Math-habs.
Secondly, every ruling of the Hanafi Math-hab is not necessarily the view of Imaam Abu Hanifah (Rahmatullah alayh). There are many issues on which Imaam Abu Hanifah has a contrary view to the Mufta Bihi version which could be the view of Imaam Abu Yusuf (Rahmatullah alayh) or of Imaam Muhammad (Rahmatullah alayh) or of both. For example, Aqeeqah, according to Imaam Abu Hanifah (Rahmatullah alayh), the Qur’baani has displaced Aqeeqah. However, this is not the Fatwa of the Math-hab.
Thirdly, Imaam Abu Hanifah stated the Makrooh view for the six fasts at a time when it was being considered Waajib.
What is Mufta Bihi??
The literal meaning of Mufta bihi is ‘the view in which fatwaa is given on’.
Basically, in every Madh-hab we have countless Fuqaha. At times, those who reached the status of Ijtihaad within a Madh-hab differ from others. For example, in the Hanafi Madh-hab, we have an elite student of Imam Abu Hanifa (may Allah be pleased with him) – (Imam Muhammad, for example) – differing with him. Since the student too is a Mujtahid, there are times when a Mufti will pass verdict in accordance to the view of that student. That view becomes the Mufta Bihi (the view upon which verdict is given). If the verdict is passed on the view of Imam Abu Hanifa, then that is Mufta Bihi.
On a side note, this proves that a Madh-hab is not the work of one individual, rather it is the combined effort of thousands of scholars.
Frameworks for issuing a ruling in the Hanafi Madh-hab
The Hanafi Fiqh is mainly based on the masā’il rendered to us by Imam Abu Hanifah and his two students, Imam Abu Yusuf and Imam Muhammad (also known al-sāhibayn). What will the fatwa be based on in masā’il, wherein there is disagreement between Imam Abu Hanifah and his two students (Imam Abu Yusuf and Imam Muhammad)?
There are two opinions expressed:
The opinion of Imam Abu Hanifah will ALWAYS be given preference over that of his two students. ’Allama Siraj al-Dīn writes in Fatāwa Sirajiyyah:
“The ruling unconditionally is given upon the opinion of Imam Abu Hanifah, then of sāhibayn (when both students have agreed upon something), then of Imam Abu Yusuf, then of Imam Muhammad, then Imam Zufar and then of Hasan bin Ziyad. It has been assumed that if a disagreement is between Imam Abu Hanifah on one side and the two students (together) on the other side, then the Mufti will have an option. HOWEVER, THE FIRST OPINION (of preference to Imam Abu Hanifah) IS MORE CORRECT.
The ruling is rendered upon the opinion of any (Imam Abu Hanifah or his students and not necessarily only upon that of Imam Abu Hanifah) as deemed appropriately (following the principles of Fiqh).
Response to the first opinion:
There are several masā’il wherein earlier jurists gave ruling upon the opinion of sāhibayn on the basis of their strong proofs. [Al-Hāwi al-Qudsi].
The fatwa was also sometimes given based on the opinion of the imam who was considered a greater authority than others in that particular area, such as, Imam Abu Yusuf in qadhā and shahadah, Imam Muhammad in inheritance (zawi al-arham) and Imam Zufar in 17 masā’il. [Radd al-Muhtār]
The opinion expressed by sāhibayn is, in fact, one of the opinions narrated by Imam Abu Hanifah himself. (Thus, the opinion of sahibayn does not also in any way contradict the taqleed of Imam Abu Hanifah) [Ibn ‘Abidin]
There are many fiqhi works which include disagreements in their books but have not clearly stated upon the opinion of whom is the ruling given. In such cases, what principle should be applied to give preference to one opinion over the other?
In principle, the fatwa must be given on that which is highlighted as ‘mufta bihi’ position (upon which fatwa is given) by accepted authorities (ashāb al-tarjih).
However, if no such expression is explicitly found in any of the reliable books, then the Mufti will consider many factors before rendering a fatwa on one of the valid opinions in the madh’hab: the difference in stage (tabaqah) among the jurists who may have differed in their preference, customary practice (‘urf), the state of the people, that which falls under the category of ‘need’, that which is the most practical for people, that which is stronger in proofs and other factors [Al-Durr al-Mukhtār].
And only Allah knows best
Mufti Hanif Patel