Imam Abu Hanifa’s View on Six Fasts of Shawwal & the Mufta Bihi Position of the Hanafi Madh-hab

Question: 
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

Question:
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)?

Answer:
There are two opinions expressed:

Opinion. 1
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.

Opinion. 2
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]

Question:
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?

Answer:
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

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