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Category Archives: Fiqh

Kamali on al-Maqasid

INTRODUCTION

This essay is presented in five sections. It begins with a general characterisation of Al-Maqasid Al-Shari’ah and a brief examination of its origins in the Qur’an. The essay then proceeds to address the classification of the maqasid and a certain order of priority that is integrated into the structure of this classification. The third section is devoted to the historical development of the theory and science of Al-Maqasid, where the contributions to this branch of the Shari’ah of some of the leading ulema (scholars) are highlighted. The next section looks into the differential approaches the ulema have taken toward the identification of the maqasid. The final section highlights the relevance of Al-Maqasid to Ijtihad and the ways in which the former can enhance the scope and calibre of the latter.

CHARACTERIZATION AND TEXTUAL ORIGINS

Al-Maqasid al-Shari’ah, or the Objectives of Islamic Law, is an important and yet somewhat neglected science of the Shari’ah.

The Shari’ah generally is predicated on benefits to the individual and the community, and its laws are designed so as to protect these benefits and to facilitate the improvement and perfection of the conditions of human life on earth. The Qur’anis expressive of this when it singles out the most important purpose of the Prophethood of Muhammad (saw): “We have not sent you but as a Mercy to the worlds” (21:107). This can also be seen in the Qur’an’s characterization of itself as “a healing to the (spiritual) ailments of the hearts” and “a Guidance and Mercy” for the believers and mankind (10:57).

This very important objective of Rahmah (Mercy or Compassion), mentioned in these two verses, is further substantiated by other provisions in the Qur’an and Sunnah (the Traditions of the Prophet) that seek to eliminate prejudice, alleviate hardship and establish justice. The laws of the Qur’an and Sunnah also seek to promote co-operation and support within the family and the society at large. The objective of Rahmah, therefore, is most clearly manifested in the realization of Maslahah (Benefit) in everyday communal life.

The ulema have, thus, generally considered Rahmah to be the all-pervasive objective of the Shari’ah, and have, to all intents and purposes, used it synonymously with Maslahah.

’Adl or Qist (Justice), is indeed a manifestation of God’s Mercy, but may also be seen as a principal objective of the Shari’ah in its own right. Certainly, the Qur’an sees it as such when it states: “We sent Our Messengers and revealed through them the Book and the Balance so that Justice may be established amongst mankind” (57:25). Justice as a value or primary objective of the Shari’ah is mentioned in the Qur’an fifty-three times in all. ’Adl — literally meaning to place things in their right and proper place — as a fundamental objective of the Shari’ah, is to seek to establish an equilibrium between rights and obligations, so as to eliminate all excesses and disparities, in all spheres of life.

Tahdhib al-Fard (Educating the Individual) is also a very important objective of the Shari’ah. It fact, in order of priority, it may even ought to be placed before Maslahah and ’Adl. For the latter are both, essentially, community-oriented values that acquire much of their meaning in the context of social relations, whereas the former seeks to make each individual a trustworthy agent just so as to strive to realize these values which benefit himself and the community. Indeed, the overall purpose of a great number of the stipulations of the Shari’ah, especially in the spheres of ’Ibadah (ritual worship) and Akhlaq(moral teachings), is to train the individual to acquire the virtues of Taqwa (God-consciousness), and thus, to aid the fulfillment of this objective.

The Qur’an is expressive, in numerous places and in a variety of contexts, of the purpose, rationale and benefit of its laws, to the extent that the texts stipulating these laws are characteristically goal-oriented. This feature of the Qur’an is common to its laws relating to both’ibadah (ritual worship) and mu’amalah (civil transactions). Thus, when the text expounds on the ritual of wudu’, or ablution for prayer, it adds: “God does not wish to inflict hardship on you but to make you clean and to complete His favour to you” (5:7). With regard to the prayer itself, it declares: “Truly, Salah restrains promiscuity and evil” (29:45).

With reference to Jihad the Qur’an similarly proclaims its rationale: “Permission is granted to those who fight because they have been wronged” (22:39). The purpose, in other words, of legalizing Jihad is to fight zulm (injustice), and of Salah, to attain spiritual purity and excellence, which is accomplished together with physical cleanliness through ablution before the prayer. With reference to the law of

Qisas (Just Retaliation), the text similarly adds: “And in the Law of Qisas there is life for you, O people of understanding” (2:179). And finally, with regard to Zakah (Wealth Tax), the rationale is also given: “In order that wealth may not circulate only amongst the rich” (59:7).

One can add many more examples to demonstrate how the Qur’an and Sunnah are expressive of the goal, justification and benefit of their ahkam (laws). In addition to the above, which require or sanction the undertaking of some positive action, one may also refer to the ahkam of the Shari’ah which prohibit or discourage certain actions that are or may be harmful and that may result in prejudice, corruption and injustice. In all cases, whatever the aim or justification of the individual ahkam, however, it is to be noted that the underlying objective is the realization of some maslahah (benefit). It is for this reason that the objective of Maslahah has generally been regarded as the summa of Al-Maqasid. For, in the final analysis, ‘Adl and Tahdhib al-Fard may also be seen as manifestations of Maslahah. The Masalih (pl. of Maslahah) is thus another name for the Maqasid, and the ulema have used these two terms almost interchangeably.

CLASSIFICATION OF BENEFITS

The ulema have classified the entire range of maqasid-cum- masalih into three descending categories of importance: the daruriyyah (the essential), the hajiyyah (the complementary) and the tahsiniyyah (the desirable or the embellishments). The essential masalih are enumerated as five, namely life, intellect, faith, lineage and property. These are seen as absolute requirements to the survival and spiritual well-being of individuals, to the extent that their destruction or collapse would precipitate chaos and the demise of normal order in society. The Shari’ah, on the whole, seeks, primarily, to protect and promote these essential values, and validates all measures necessary for their preservation and advancement. Jihad has thus been validated in order to protect religion, and Qisas, to protect life. Indeed, the Shari’ah takes affirmative and even punitive measures to protect and promote these values. Theft, adultery and the drinking of alcohol are punishable offences as they pose a threat to the immunity of private property, the well-being of the family and the integrity of the human intellect, respectively. In an affirmative sense again, but at a different level, the Shari’ah encourages work and trading activities in order to enable the individual to earn a living, and it prescribes elaborate measures to ensure the smooth flow of commercial transactions in the market-place. The family and personal laws of the Shari’ah are likewise an embodiment largely of guidelines and measures that seek to protect and strengthen the family unit and to make it a safe refuge for all its members.

The Shari’ah also commands education and the pursuit of knowledge so as to ensure intellectual well-being and the advancement of the arts, sciences and civilization. The essential masalih in other words, constitute the all-pervasive central theme of the Shari’ah, and all its laws are in one way or another related to the protection of these benefits.

The second category of benefits, known as the hajiyyah or the complimentary benefits, are not in themselves a completely independent category. They seek to protect and promote the essential masalih, albeit in a secondary capacity. The hajiyyah are defined as benefits that seek to remove severity and hardship in cases where such severity and hardship do not pose a threat to the very survival of normal order. A great number of the rukhas (concessions), such as the shortening of the Salah and the forgoing of the fast by the sick and the traveller, may be classified as hajiyyah. In almost all areas of obligatory ’ibadah the Shari’ah has granted such concessions. These concessions are aimed at preventing hardship, but they are not essential: people could, indeed, live without them if they were obliged to. In the area of criminal law, the Hadith which proclaims that “prescribed penalties are to be suspended in all cases of doubt”, may also be seen as providing a complementary benefit.

Although, not absolutely essential, as the burden of proof for crimes of prescribed penalties is extremely stringent, it nevertheless, allows a potentially innocent defendant to be relieved of difficulties at a much earlier stage. The provision affects the criminal law process — a process designed to protect the essential masalih. In the sphere of mu’amalah, the Shari’ahvalidates certain contracts, such as the sale of salam and the ijarah, (lease and hire). Again, the benefits attained from such contracts may be classified as hajiyyah. The contracts are not absolutely essential to maintain normal order, and in fact, there is a certain anomaly that is attendant in both, but they are permitted so as to avoid hardship.

A complimentary maslahah is elevated to the rank of the essential masalih where it concerns the public at large. Certain concessions that are granted in the sphere of ’ibadah, for instance, may be secondary to the survival of an individual, but may become of primary interest for the community as a whole — for example, the shortening of Salah on the battlefield. In the event of a conflict between two or more masalih, the accepted norm is to sacrifice the lesser benefit or benefits for the higher benefit. However, when there is a plurality of conflicting masalih and none appears to be clearly preferable, then the prevention of evil takes priority over the realization of benefit.

This is because the Shari’ah is more emphatic about the prevention of evil then the realization of good, as can be seen from the Hadith where the Prophet is reported to have said:

“When I order you to do something, do it to the extent of your ability, but when I forbid you from something, then avoid it altogether”.

The third category of masalih, known as the tahsiniyyah, are in the nature of desirabilities. They seek to attain refinement and perfection in the customs and conduct of the people, at all levels. The Shari’ah thus encourages cleanliness of the body and attire for the purposes of ’ibadah, and recommends, for example, the wearing of perfume when attending the Friday congregational prayer. The Shari’ah also encourages the giving of charity to those in need, over and above the obligatory Zakat. Again in the area of ’ibadah, it recommends supererogatory prayers and voluntary fasting. In customary matters and interpersonal relations, the Shari’ah encourages al-rifq (gentleness), husn al-khulq (pleasant speech and conduct) and ihsan (fair Page 3 of 7 dealing). The judge and the head of state are similarly advised not to be too eager in the enforcement of penalties, as this is considered to be undesirable. The purpose of all this is the attainment of refinement and excellence in all areas of human conduct.

The tahsiniyyah are a very important category, as they are all-pervasive and relate to all the other masalih. One can perform the obligatory Salah, for example, in different ways. It may vary from performing it with full and proper concentration, giving each of its parts their due attention, to performing it with haste and thoughtlessness. The difference between the two ends of the spectrum is that at one end the Salah is espoused with the attainment of both the essential and the desirable, and at the other end, it can at best be seen as discharging a duty. One can extend this analysis to the implementation of almost all the ahkam of the Shari’ah, and indeed, to almost every area of human conduct.

HISTORY IN BRIEF

As a science of the Shari’ah in its own right, Al-Maqasid did not receive much attention in the early stages of the development of Islamic legal thought, and as such, represents rather a latent addition to the juristic legacy of the Madhahib (Schools of Islamic Law). Even to this day many reputable textbooks on Usul al-Fiqh (Methodology in Islamic Jurisprudence) do not include Al-Maqasid Al-Shari’ah in their usual coverage of familiar topics. Perhaps, this is partly due to the nature of the subject. It is largely concerned with the philosophy of the law, its outlook and objectives, rather than the formulation of its specific text. Although Al-Maqasid, as a distinct science of the Shari’ah, is of obvious relevance to Ijtihad, again, it has not been treated as such in the conventional expositions of the theory of Ijtihad.

Broadly speaking, Islamic legal thought has, on the whole, preoccupied itself with concerns over conformity to the letter of the Divine Text, and the legal science of Usul al-Fiqh has played a crucial role in the advancement of this cause. This literalist orientation of the juristic thought was generally more pronounced on the part of the Ahl al-Hadith (The Traditionalists) than of the Ahl al-Ra’y (The Rationalists). The Traditionalists thus tended to view the Shari’ah as a set of rules, commands and prohibitions, that were addressed to the competent mukallaf (individual), where all that the latter was expected to do was to conform. The precedents of the leading Sahabih (Companions of the Prophet) indicate, on the other hand, that they saw the Shari’ah not only as a set of rules but also as a system of values, where the specific rules were the tangible manifestations of those overriding values. The textualist tradition of the early three centuries, however, did not take much interest in this deeper observation and it was not until the time of al-Ghazzali (d. 505H), and then al-Shatibi (d. 790H), that significant developments were made in the formulation of the theory of Al-Maqasid.

The basic outlook on the Shari’ah advocated by the theory of Al-Maqasid was, however, never completely denied by any of the leading Madhahib. Some were more open to the theory and science of Al-Maqasid than others. Indeed, except for the Zahiris, who maintained that the maqasid can only be known when they are identified by clear text, the majority of the ulemadid not even confine Al-Maqasid to the clear text alone. They perceived and understood the Shari’ah to be rational, goal orientated and its rules generally founded in identifiable causes. A mere conformity to rules that went against the purpose and vision of the Shari’ah was therefore generally unacceptable. And yet, detailed elaboration on the aims and objectives of the Shari’ah was generally not encouraged. This rather unspoken attitude contrasted with the fact that the Qur’an itself conveyed considerable awareness of the purposes and objectives of its laws and often expounded the causes and rationale on which they were founded. The general reticence of the ulema in respect of the identification of the maqasid might have been partly due to the elements of projection and prognostication that such an exercise was likely to involve. Who could tell for sure, that this or that is the purpose and overriding objective intended by the Lawgiver, without engaging in a degree of speculation, unless, of course, the text declared it so. But to confine the scope of Al-Maqasid to clear textual declarations alone was also not enough, as we shall see below. And thus, Al-Maqasid, as a science, remained on the fringes of the mainstream juristic thought that was manifested in the various theories and doctrines of Usul al-Fiqh.

It was not until the early 4th Century of the Hijrah (the Islamic calendar) that the term ‘maqasid’ was used in the juristic writings of Abu ‘Abd-Allah al-Tirmidhi al-Hakim. Recurring references to this then appeared in the works of Imam alHaramayn al-Juwayni (d. 478H), who was probably the first to classify the maqasid of the Shari’ah into the three main categories of the daruriyyah, the hajiyyah and the tahsiniyyah, which has ever since been generally accepted. Al-Juwayni’s ideas were then further developed by his pupil, Abu Hamid al-Ghazzali (d. 505H), who wrote at length on the doctrines of Maslahah (Public Interest) and Ta’lil (Ratiocination) in his works Al-Shifa’ Al-Ghalil and Al-Mustasfa min ’Ilm Al-Usul. AlGhazzali was generally critical of the doctrine of Public Interest as a source of proof, but validated it where it promoted the maqasid of the Shari’ah. As for the maqasid themselves, al-Ghazzali wrote categorically that the Shari’ah pursued five basic objectives — life, intellect, faith, lineage and property, and that these were to be protected as absolute priorities.

A number of prominent scholars have thereafter contributed to the development of the theory and science of Al-Maqasid Al-Shariah. Not all of them consistently perhaps, but each of their contribution has been invaluable. Sayf al-Din al-Amidi (d. 631H) identified the science as al-targih, a studied grid or criteria to ascertain preference amongst conflicting interests. He elaborated on a structure of internal orders of priorities, within and across the different categories of the maqasid. However, Al-Amidi also confined the essential maqasid to only five. The Maliki jurist Shihab al-Din al-Qarafi (d. 684H) was the first to add a sixth to the existing list of the five essential maqasid, namely, the protection of al-’ird (honour). This was later endorsed by Taj al-Din ‘Abd al-Wahab ibn al-Subki (d. 771H) and Muhammad ibn Ali al-Shawkani (d. 1255H). The list of the five essential values was evidently based on a reading of the relevant parts of the Qur’an and Sunnah on the Hudud (the prescribed penalties). The value that each of these penalties sought to vindicate and defend was consequently identified as an essential maqasid. The latest addition, al-’ird, was initially thought to have been covered under al-nasl (lineage), but the proponents of this addition argued that the Shari’ah had enacted a separate hadd (punishment) for al-qadhf (slanderous accusation), and hence, that the new addition be seen as an essential maqsud (objective) in its own right.

Izz al-Din Abd al-Salam al-Sulami’s (d. 660H) renowned work, Al-Qawa’id Al-Ahkam, was in his own characterisation a work on the ‘maqasid al-ahkam’. The work provides a comprehensive treatment of the various aspects of Al-Maqasid, and especially in respect of the doctrines of ’Illah(Effective Cause) and Maslahah (Public Interest). It was at the outset of this work that al-Sulami wrote that “the greatest of all the objectives of the Qur’an is to facilitate benefits and the means that secure them”, and that “the realization of benefits also include the prevention of evil”. Al-Sulami adds that “all the takalif (obligations) of the Shari’ah are predicated on securing benefits for the people, in this world and the next, for God Most High is in no need of the obedience of His servants. He is above all creation and cannot be harmed by the disobedience of transgressors.” Al-Sulami thus provided a very fresh reading of the Shari’ah, one that would help stimulate the development of the science of Al-Maqasid tremendously.

Taqi al-Din ibn Taimiyyah (d. 728H) was probably the first scholar to depart from the notion of confining the maqasid to a specific number. He added to the existing list of the maqasid such things as the fulfilment of contracts, the preservation of the ties of kinship and respect for the rights of one’s neighbours. In relation to the Hereafter, he added an inventory of qualities, including love of God, sincerity, trustworthiness and moral purity.

Ibn Taimiyyah thus revised the scope of AlMaqasid, from a designated and specified list to a completely open-ended list of values. This approach is the one generally adopted by contemporary scholars, including Ahmad al-Raisuni and Yusuf al-Qaradawi. In fact, al-Qaradawi has further extended the list of the maqasid to include human dignity, freedom, social welfare and human fraternity among the higher maqasid of the Shari’ah.

These objectives are, of course, undoubtedly upheld by the weight of both general and detailed evidence in the Qur’an and Sunnah. Following on from al-Qaradawi, I propose that we add to the list economic development and the development of science and technology. These are, of course, crucially important in determining the standing of the Ummah (the Muslim community) in the world community.

It would appear from the above analysis that Al-Maqasid Al- Shari’ah is still open for further development and enhancement. The nature of this development and enhancement must reflect the priorities of our age and the change of circumstances that we encounter as a result.

IDENTIFICATION OF THE MAQASID

As already indicated the ulema have differed in their approach to the identification of the maqasid. The first approach to be noted is the purely textualist approach, which confines the identification of the maqasid to the clear text, the commands and prohibitions, which are in themselves the carriers of the maqasid. The maqasid, according to this view, have no separate existence as such. Provided that a command or prohibition is tasrihi (explicit) and ibtida’i(normative) it in itself conveys the maqsud of the Lawgiver.

Although it is generally accepted that textual injunctions must be respected and observed as manifestations of the intentions of the Lawgiver, the majority approach to the identification of the maqasid takes into consideration not only the text but also the underlying ’illah or rationale of the text.

The chief exponent of Al-Maqasid, Abu Ishaq Ibrahim al-Shatibi (d. 790H), spoke affirmatively of the need to respect and observe the explicit injunctions, but added, that adherence to the obvious text must not be so rigid as to alienate the rationale and purpose of the text from its words and sentences. Such rigidity could, of course, then be just as much contrary to the maqsud of the Lawgiver as would be in the case of a conscious and direct neglect of that law. The preferred approach then is to read the text, whether it is of a command or a prohibition, in conjunction with its rationale and objective, for this is most likely to bear the greatest harmony with the intention of the Lawgiver.

Al-Shatibi elaborated that the maqasid that are known from such a comprehensive reading of the text are of two types, asliyyah (primary) and tab’iyyah (secondary). The former are the essential maqasid, or the daruriyyah, which the mukallaf must observe and protect regardless of his personal predilections, whereas the latter, the supplementary maqasid, or the hajiyyat, are those regarding which the mukallaf has some flexibility and choice.

The comprehensive approach to the textual injunctions of the Shari’ah has given rise to two important questions. Firstly, the question that seeks to establish whether the means to a command, a wajib (obligation) or a haram (prohibition), should also be seen as integral to the goal and objective that is sought by that command. The general response given to this question is that supplementary aspects of commands and prohibitions are indeed integral to their objectives. Thus, it is generally accepted that whatever might be necessary for the completion of a wajib is also a part of that wajib, and that whatever may lead to a haram is also haram. There has, however, been some disagreement on this, emerging from certain areas of detail.

The second question concerns the silence of the Lawgiver in respect of certain conducts, especially where a general reading of the relevant evidence casts light on the value of that conduct. The question may be formulated as follows: We know that the maqasid can be known from clear injunctions, but can they also be known from a general reading of the nusus (clear textual rulings) by way of induction? Al-Shatibi’s response to this question is possibly the most original. Istiqra’ (induction), according to al-Shatibi, is one of the most important methods for identifying the maqasid of the Shari’ah.

There may be various textual references to a subject, none of which may be in the nature of a decisive injunction. Yet their collective weight is such that it leaves little doubt as to the meaning that is to be obtained from them. A decisive conclusion may thus be arrived at from a plurality of inclining expressions. Al-Shatibi illustrates this with an important example.

Nowhere in the Qur’an is there a specific declaration to the effect that the Shari’ah has been enacted for the benefit of the people, and yet, this must be the definitive conclusion that is to be drawn from the collective reading of a variety of textual proclamations.

To illustrate the point further we may give two more examples. There is no specific declaration in the textual sources on the classification of the maqasid into the three categories of daruriyyah, hajiyyah and tahsiniyyah or on the conclusion that the Lawgiver has intended that these maqasid must be protected — and yet, through istiqra’, this classification and conclusion has generally been accepted by the ulema. Again, there is no specific textual declaration espousing the claim that the protection of the five values of life, intellect, faith, lineage and property is of the most primary importance to the Shari’ah — but once again, through istiqra’, this has also been generally accepted by the ulema. It is also to be noted that the inductive method is not confined to the identification of maqasid-cum-masalih alone, but extends to commands and prohibitions.

Conclusions arrived at through istiqra’, such as those in the above paragraph, are of great overall importance to the understanding and implementation of the Shari’ah. They are not to be seen as being subject to doubt or lacking in credibility by way of being based on speculative reasoning.

In fact, al-Shatibi’s own position on this was to go so far as saying that the conclusions and positions established through istiqra’ are the general premises and overriding objectives of the Shari’ah, over and above the level of the specific rules. Al-Shatibi’s approach to the method of induction is reminiscent of knowledge that is acquired of the personality and character of an individual through a sustained association and observation of conduct of that individual. This kind of knowledge is broad and holistic as it is enriched with insight, and is likely to be more reliable compared to, say, knowledge based only on the observation of odd and isolated incidents in the daily activities of that individual.

AL -MAQASID AND IJTIHAD

Having expounded his theory of Al-Maqasid, al-Shatibi advocated and accentuated the need for knowledge of the science of Al-Maqasid as a prerequisite to the attainment of the rank of a mujtahid (jurist). Throughout Muslim history, those who neglected acquiring mastery over the science of Al-Maqasid did so at their own peril, as it made them liable to error in ijtihad.

Included amongst these were the ahl al-bida’ (the proponents of pernicious innovations), who only looked at the apparent text of the Qur’an without pondering over its ultimate aims and objectives. These innovators (an allusion to the Kharijites) held steadfastly to the literal text of even the mutashabihah (the intricate segments of the Qur’an) and premised many conclusions on them. They took a fragmented and atomistic approach to the reading of the Qur’an, which failed to tie up the relevant parts of the text together. The leading ulema have, on the other hand, always viewed the Shari’ah as a unity, in which the detailed rules were to be read in the light of their broader premises and objectives.

Ibn ’Ashur, the author of another landmark work on Al-Maqasid, also stressed that knowledge of the science of Al-Maqasid was indispensable to ijtihad in all its manifestations.

Some ulema, who confined the scope of their ijtihad only to literal interpretations, found it possible, ibn ‘Ashur observed, to project their personal opinions into the words of the text, but fell into error as they were out of touch with the general spirit and purpose of the surrounding evidence.

We may illustrate this by reference to the differential views taken by the ulema with respect to whether the Zakah on commodities, such as wheat and dates, must be given in kind or could also be given in their monetary equivalent. The Hanafis validated the possibility of this substitution, but some ulema held otherwise. The Hanafi view was founded on the analysis that the purpose of Zakah was to satisfy the needs of the poor, which could just as easily be achieved with the monetary equivalent of the commodity.

Ibn Qayyim al-Jawziyyah likewise observed that where the ahadith on the subject of sadaqah al-fitr (the charity due on the Eid after Ramadan) sometimes referred to dates and at other times to raisins or food grains, the common purpose in all this was to satisfy the needs of the poor, which could be done with any of these staple foods of Madinah and its environs at that time.

The purpose in any of these ahadith was not to confine the payment of the sadaqah to a particular commodity.

A similar example relates to the issue of whether a person may pay his Zakat ahead of time, that is, prior to the expiry of the one year period when it becomes due, and whether he is liable to pay again if he has already paid before that time. Imam Malik, drawing an analogy with Salah, ruled affirmatively that the person would be liable to pay again. Subsequent Maliki jurists, including Ibn al-‘Arabi and Ibn Rushd, however, disagreed with this position and ruled that early payment of Zakah was permissible. Indeed, if someone performs his Salah before its due time, he must perform it again at its proper time. But, there is a difference between Salah and Zakah, in that the former is time-bound to specific times but the latter is not in any such similar ways. Hence, Zakah may be paid earlier, especially if it is prepaid by only a few weeks.

Scholars who have taken a non-literalist approach, on the other hand, have often been criticized for departing from certain parts of the textual sources. Imam Abu Hanifah, for example, was criticized by the Ahl al-Hadith (the Traditionalists), for having departed on occasions from the wordings of particular ahadith. It turns out upon closer inspection, however, that such scholars departed from the text only when they had reached a different conclusion by reading that particular text in the context of the of the other relevant evidence in the Qur’an and Sunnah.

Disharmony and conflict between the aims and objectives of the Shari’ah and its specific rulings may arise latently. A mujtahid or a judge may issue a ruling or a decision which appears at that time to be consistent with the text and maqsud of the Shari’ah. With time and further scrutiny, however, it may prove to be not so consistent. A judge may, for example, uphold a duly signed contract and make it binding on the parties. With time, however, the contract may prove to be grossly unfair on one of the parties. In such an eventuality the judge or the mujtahid can hardly ignore the attendant unfairness and insist on the strict adherence to the letter of the contract. Indeed, according to the Shari’ah laws of obligations, a contract is no longer a governing instrument between the shari’ah al-‘aqidayn (the contracting parties) if it becomes an instrument of injustice. The judge must therefore, in order to uphold the maqsud of justice, a primary and all-pervasive characteristic objective of the Shari’ah, set aside the contract.

The judge or the mujtahid must, likewise, give priority to the maqasid whenever there is such a latent discord. These discords or conflicts are most likely to occur where the specific rulings have been arrived at through the doctrine of Qiyas (Analogy). Thus, where a rigid adherence to Qiyas may lead to unsatisfactory results, recourse may be had to Istihsan (Juristic Preference) in order to obtain an alternative ruling that is in greater harmony with the objectives of the Shari’ah.

An important feature of the ‘Maqasidi’ (objectives-based) approach in relation to ijtihad and the formulation of specific rules is the attention that the mujtahid must pay to the consequences of his rulings. Indeed, an ijtihad or fatwa would be deficient if it failed to contemplate its own ma’alat (consequences). The importance of such contemplation is demonstrated by the Prophet’s Sunnah. Therein, we note instances where the Prophet paid much attention to the possible consequences of his rulings, often in preference to other considerations. Thus, for example, although acutely aware of the treason and subversive activities of the Munafiqun (the Hypocrites), without and within the Muslim community, we find that he decided not to pursue them, stating simply that “I fear people might say that Muhammad kills his own Companions”.

Similarly, although he personally would have liked very much to accept and execute ‘A’ishah Siddiqah’s suggestion to restore the Ka’bah to its original proportions, as founded by the patriarch Prophet, Ibrahim, again, we find that he decided not to, saying “I would have done so if I didn’t fear that this may induce our people into disbelief.”

In both these instances, therefore, the Prophet did not take what would have been thought to be the normal course because of a foresight of the potential adverse consequences.

Finally, we must turn to ijtihad in the context of crimes and penalties. Of course, the normal procedure here is to apply the punishment whenever the cause and occasion for it is present. There may, however, be instances where to pardon the offender would be a more preferable course to take. The mujtahid and the judge must remain open and alert to such possibilities and reflect them in their judgements whenever so required.

Al-Shatibi has in this connection drawn a subtle distinction between the normal ’illah that invokes a particular ruling in a given case and what he terms as ‘illah tahqiq manat al-khas (the verification of the particular) in the issuance of ijtihad and judgment. The mujtahid (scholar) may investigate the normal ‘illah and identify it in the case, for example, of a poor person who qualifies to be a recipient of zakah, but such an enquiry may take a different course when it is related to a particular individual as to what might seem appropriate or inappropriate to be applied in a particular case. The mujtahid needs therefore to be learned not only of the law and specific evidence but must also have acumen and insight to render judgments that are enlightened by both the overall consequences as well as the special circumstances of each case.

CONCLUSION

The maqasid are undoubtedly rooted in the textual injunctions of the Qur’an and Sunnah, but they look mainly at the general philosophy and objectives of these injunctions, often beyond the particularities of the text. The focus is not so much on the words and sentences of the text as on the goal and purpose that is advocated and upheld. By comparison to usul al fiqh, the legal theory of the sources, the maqasid al Shari’ah are not burdened with methodological technicalities and literalist readings of the text. As such the maqasid integrates a degree of comprehension and versatility into the reading of the Shari’ah that is in many ways unique and rides above the vicissitudes of time and circumstance. At a time when some of the important doctrines of usul al-fiqh, such as ijma’ (general consensus), and qiyas (analogical reasoning) and even ijtihad, seem to be burdened with difficult conditions, conditions that might appear to stand as a measure of disharmony with the prevailing socio-political climate of the present day Muslim countries, the maqasid have become the focus of attention as it tends to provide ready and convenient access to the Shari’ah. It is naturally meaningful to understand the broad outline of the objectives of the Shari’ah in the first place before one tries to move on to specifics. An adequate knowledge of the maqasid thus equips the student of Shari’ah with insight and provides him with a theoretical framework in which the attempt to acquire detailed knowledge of its various doctrines can be more meaningful and interesting.

Mohammand Hashim Kamali is Professor of Law at the International Islamic University Malaysia. He is author of numerous articles published in learned journals and many works including Principles of Islamic Jurisprudence, Criminal Law in Islam and Freedom of Expression in Islam.

REFERENCES

1. Cf. Al-Zuhayli, Nazariyyah al-Darurah, p.50

2. Cf. Al-Qaradawi, Madkhal li-Dirasah al-Shari’ah, pp. 70 – 71

3. Cf. Raysuni, Nazariyyah al-Maqasid, p. 149

4. Al-Ghazali, Al-Mustafa, I, 287

5. Cf. Al-Qaradawi, Madkhal li-Dirasah al-Shari’ah, p. 73

6. Al-Sulami, Qawa’id al-Ahkam, I, 8 Page 7 of 7

7. Ibn taymiyyah, Majmu’ al Fatawa, XXXII, 134

8. Ahmad al-Raysuni, Nazariyyah al-Maqasid, p.44

9. Al-Qaradawi, Madkhal li-Dirasah al-Shari’ah, p.75

10. Al-Shatibi, Muwafaqat, II, 393

11. Al-Shatibi, Muwafaqat, III, 394

12. Al-Shatibi, Muwafaqat,II, 6:see also Ibn Qayyim, I’lan, I, al-Qaradawi, Madkhal, p.58

13. Al-Shatibi, Muwafaqat, I, 243; al-Qaradawi, , Madkhal, pp. 64-65

14. Ibid, II, 49 – 51; idem, AlI’tisam, II, 131

15. Al-Shatibi, Muwafaqat, III, 148

16. Al-Shatibi, Muwafaqat, IV, 179

17. Tahir Ibn ‘Ashur, Maqasid al-Shari’ah al-Islamiyyah, pp. 15 – 16

18. Id. P. 27

19. Ibn Qayyim, I‘lam, III, 12; al-Raysuni, Nazaariyyah al-Maqasid, p. 336

20. Cf. Al-Raysuni, Nazariyyah, pp. 338 – 339

21. Cf. Wahbal al-Zuhayli, Al-Fiqh ai-Islami wa Adillatuh, IV, 52: See for detailed illustrations of this type of istihsan, M.H. Kamili, Principles of Islamic

Jurisprudence, p. 225ff.

22. See for details the chapter on istihsan, Kamili’s, Jurisprudence in the previous note.

23. Hadith muttafiqun ‘aliyh reported by all major collections of Hadith

24. Malik bin Anas, Al-Muwatta, I, 363; al-Raysuni, Naziriyyah, p. 354

25. Al-Shatibi, Muwafaqat, IV, 97

 
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Posted by on August 15, 2012 in Fiqh

 

Sharjah Madkhal Conference

Here is a link to a great series of lectures of the four schools of Islamic law:

http://archive.org/details/sharikah-madkhal

 
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Posted by on August 13, 2012 in Arabic, Fiqh, History

 

Important Works since the Time of Shaykh al-Islam

الانصاري تحرير تنقيح اللباب 926 هـ
الانصاري تحفة الطلاب 926 هـ
الانصاري منهج الطلاب 926 هـ
الانصاري شرح منهج الطلاب 926 هـ
الانصاري الغرر البهية 926 هـ
الانصاري أسنى المطالب 926 هـ
المزجد العباب 930 هـ
العبادي حاشية على تحفة المحتاج 944 هـ
العبادي حاشية على الغرر البهية 944 هـ
عميرة حاشية على كنز الراغبين 958 هـ
الشهاب الرملي حاشية على أسنى المطالب 958 هـ
الشهاب الرملي فتح الرحمن 958 هـ
الهيتمي المنهج القويم 974 هـ
الهيتمي تحفة المحتاج 974 هـ
الهيتمي الإمداد 974 هـ
الهيتمي فتح الجواد 974 هـ
الهيتمي الإيعاب 974 هـ
الشربيني الاقناع 977 هـ
الشربيني مغني المحتاج 977 هـ
الفشني تحفة الحبيب 978 هـ
المليباري قرة العين 987 هـ
المليباري فتح المعين 987 هـ
الرملي نهاية المحتاج 1004 هـ
الرملي غاية البيان 1004 هـ
الزيادي حاشية على شرح منهج الطلاب 1024 هـ
القليوبي حاشية على الاقناع 1069 هـ
الشوبري حاشية على تحفة الطلاب 1069 هـ
القليوبي حاشية على تحفة الطلاب 1069 هـ
القليوبي حاشية على كنز الراغبين 1069 هـ
القليوبي حاشية على تحفة المحتاج 1069 هـ
الرشيدي حاشية على نهاية المحتاج 1069 هـ
الشبراملسي حاشية على فتح القريب 1078 هـ
الشبراملسي حاشية على نهاية المحتاج 1078 هـ
الحلبي حاشية على شرح منهج الطلاب 1092 هـ
العناني حاشية على تحفة الطلاب 1098 هـ
البرماوي حاشية على فتح القريب 1160 هـ
المدابغي حاشية على الاقناع 1170 هـ
المدابغي حاشية على تحفة الطلاب 1170 هـ
الكردي حاشية على المنهج القويم 1194 هـ
الجرهزي حاشية على المنهج القويم 1201 هـ
الجمل حاشية على شرح منهج الطلاب 1204 هـ
البجيرمي تحفة الحبيب على الاقناع 1221 هـ
البجيرمي حاشية على شرح منهج الطلاب 1221 هـ
الشرقاوي حاشية على تحفة الطلاب 1226 هـ
باصبرين حاشية على فتح المعين 1260 هـ
باعشن بشرى الكريم 1270 هـ
البيجوري حاشية على فتح القريب 1277 هـ
الدمياطي إعانة الطالبين 1310 هـ
الجاوي حاشية على فتح القريب 1316 هـ
الجاوي نهاية الزين 1316 هـ
عبد الحمن الشربيني حاشية على الغرر البهية 1326 هـ
الترمسي حاشية على المنهج القويم 1329 هـ
بافضل حاشية على المنهج القويم 1330 هـ
السقاف ترشيح المستفيدين 1335 هـ
الغمراوي السراج الوهاج 1337 هـ
الأهدل عمدة المفتي والمستفتي 1352 هـ
العمودي المسائل الثلاث 1355 هـ
العمودي إعانة المبتدين 1355 هـ
الشاطري الياقوت النفيس 1360 هـ
الشاطري شرح الياقوت النفيس 1422 هـ

وأهم كتب المعاصرين للمبتدئين
1 – المعتمد في الفقه الشافعي – محمد الزحيلي
2 – الفقه الشافعي الميسر – وهبة الزحيلي
3 – الفقه المنهجي – لبغا وجماعة من العلماء
(هذه الثلاثة تعتمد قول مغني المحتاج)
الدراسات الفقهية – الشقفة

 

 

 

 
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Posted by on August 13, 2012 in Fiqh

 

Traditional Kurdish Curriculum

Medrese education in northern Kurdistan[1]

Zeynelabidin Zinar

Kurdish medreses of the traditional type, which for many centuries had a prominent presence especially in northern Kurdistan and long were most important centres of education and cultural transmission, no longer exist. By the end of the 1960s, the last ones had disappeared. The present article addresses a growing interest in these institutions and attempts to answer questions as to what these medreses were, how they functioned and what method of education was followed in them. The history of the flourishing and demise of these medreses has so far not been presented clearly to the Kurdish public. Very few Kurdish intellectuals have been aware of the medrese tradition; even fewer have a more than superficial acquaintance with it. Interest in the medrese and the learned culture associated with this institution is increasing, however, and many members of the Kurdish educated and artistic elite wish to know more about this subject. So far, however, researchers have not given it much attention and not a single serious study has been produced. Although a few things have been written about the subject, most of them have grave shortcomings, are marred by mistakes and are based on hearsay. Those who did write about the medrese moreover frequently did so according to their own, different world views and convictions, judging the medrese to be a hotbed of backwardness and reaction. Therefore I thought it necessary to write this essay and present briefly to the readers those things that I have seen with my own eyes and personally experienced.

The intellectual life that used to exist in the medreses of Kurdistan has now been laid to rest in a silent cemetary, and in order to observe it one has to dig in the past. Even if one can these days still see the remnants of this tradition in some villages far from the cities, this does not mean that these medreses have survived and that their tradition of learning still is being carried on.
The medreses of the old days produced many scholars and intellectuals that are a source of pride and honour to the Kurdish nation. For it is due to the efforts of the likes of Elî Harîrî, Mele Ehmedê Cizîrî, Mele Ehmedê Bateyî, Feqiyê Teyran, and Ehmedê Xanî[2] that through the ages Kurdish language and civilization have left their lasting marks in history and have shone as a bright light for all the world to see.
There have been medreses in many districts of Kurdistan from the 11th or 12th century down, and they have provided education to tens of thousands, no, hundreds of thousands of students (called feqî / feqe, suxte or şagird in Kurdish).[3] Besides Kurdish children, there were also Turks, Arabs and Persians who came to study there. A few of these numerous medreses have become well-known and have left their mark on the pages of history, such as the Sitrabas medrese of Diyarbakir, the Red Medrese (Medreseya Sor) of Cizre, the medrese of Bayezid and the medrese of Shemdinan. Bitlis alone had several famous medreses: the Ikhlasiye, Katibiye, Shukriye, Sherefiye and Shemsiye. Other influential medreses were those of Hizan, Müks, Bêdar, Findik, Akhtepe, Norshin, Karaköy (Gimgim in Varto), Farqîn (present Silvan), Hawêl, a number of medreses in Siirt, those of Hasankeyf, Palu, Okhin, Van, and dozens of others.
Apart from being centres of education in Kurdish, Arabic and to some extent also Persian, they were also the places where Kurdish cultural tradition and an awareness of Kurdish identity were kept alive. Kurdish custom and tradition (adet) was maintained in the medreses, and it was here that something of a Kurdish national character was forged.
After 1925, however, Mustafa Kemal issued his infamous education laws, the Kanun-i Tevhid-i Tedris, and had the medreses closed. The closure of those Kurdish medreses had, in fact, as its primary aim to assimilate the Kurds, to cut them off from all things of the past, and especially to make the Kurds forget their own past. This was also one of the major aims of Mustafa Kemal in issuing his dress legislation: the Kurds had to give up their distinctive dress so that they would also rapidly loose their other customs and traditions. The division of Kurdistan between the Ottoman Empire and Iran was finalised in 1639. But neither the Persians nor the Ottomans had ever denied the existence of the Kurds and Kurdistan, nor had they ever made assimilation of the Kurds through deliberate legislation their objective – not until 1923. Since northern Kurdistan became a part of the new Turkey, however, the leaders of the Turkish state have had recourse to all sort of shameful cruelty, oppression and bloodshed to wipe out the very names of Kurds and Kurdistan; and they continue to this day.

As said above, the medreses of Kurdistan produced many great men, who became renowned not only among the Kurds but through the entire Middle East as well as other parts of the world. Their valuable contributions to Kurdish culture and history, in the religious sciences proper and in mysticism, in general scholarship and literature, or in practical politics in the form of leading roles in Kurdish uprisings, deserve never to be forgotten. Let me, by way of examples, list here the names of just some of those medrese graduates.
a) The following persons were `ulama and sufis as well as authors of literature: Mawlana Khalid al-Kurdi (1773-1826), the reformer of the Naqshbandi order is the most internationally famous of them. Shaikh Elî Harîrî (1010-1089), Mele Ehmed Huseyn Bateyî (1417-1491), Shaikh Mele Ehmed Cizîrî (1570-1640) and Feqiyê Teyran (1590-1660) are widely considered as the founders of the Kurdish literary tradition. They were followed by Feqî Reşîdê Hakkarî, Şerefxanê Colemergî (1693-1748), Selîm Suleyman (16th/17th cent.), Mele Xelîlê Sêrtî (Khalil Si`irti, 1753-1843), Kharis Bidlîsî (18th cent.), Mele Yunus Herqetêni (18th-19th cent.), Pertew Begê Hakkarî (d. 1806), Siyaposh, Bekir Begê Erzî, Mensûr Girgaşî, Shaikh Ebdurrehmanê Akhtepî (1850-1910), Mele Elî Findikî, Xelîfe Ûsiv (Khalifa Yusuf), Shaikh Diyaeddîn (known as the Hazret of Norshin), Mele Mihemmed Emîn Heyderî, etc.
b) Among the Kurdish medrese graduates we find from an early period on some authors who expressed a strong awareness of Kurdish national identity and a deep concern with the interests of the Kurdish people. The work of Ehmedê Xanî (1651-1707) still moves nationalists. In the 19th century, we find Murad Khan Bayezîdî (1772-1832) and Mele Mehmûd Bayezîdî,[4] in the 20th century Mele Se’îdê Kurdî (Sa’id-i Nursi)[5] and Mele Şeyxmus Hesarî, who under the pen-name of Cigerxwîn became a famous nationalist poet.
c) The medreses produced also some men who became active in (nationalist) politics and took leading part in Kurdish uprisings: Shaikh Ubaydullah of Nehri (whose 1880 uprising is commonly considered as the first uprising with a nationalist dimension); Shaikh Ubaydullah’s son, Shaikh Abdulqadir (a founder of the first Kurdish association in Istanbul in 1908), Sayyid Taha of Nehri (active in nationalist politics in Iranian and Iraqi Kurdistan), Shakh Sa’id of Piran (who led the first great rebellion in Republican Turkey in 1925), Mele Selîm of Hizan, Sayyid Shaikh Elî and Shaikh Şihabeddîn, who also were involved in uprisings.

Medreses were the only institutions where people learned to read and write Kurdish. The secular schools that were established by the new states that succeeded to the Ottoman Empire in this century used the state languages as the medium of instruction. The medreses were at least bilingual. Arabic, the language of the Qur’an, had priority of course, but Kurdish was also used and some Persian was taught as well. Most of the books studied were in Arabic, but the teachers explained them in Kurdish. Besides these, a number of textbooks had to be read that were originally written in Kurdish, in the Kurmanci dialect. Surprisingly, many of the authors of Arabic-language books studied in the Kurdish medreses were also Kurds, or were believed to be so.
First religious education
Religious education among the Kurds does not begin in the medrese but almost at birth. Children of Muslim parents — boys as well as girls — are on the seventh day taken to a man of pious reputation, usually a shaikh or a mele (village imam), to be given a “propitious” name. The pious person then recites the first call to prayer (ezan) into the child’s right ear and the second call (qamet) into its left ear, after which he gives the child its name. When the child learns to speak, its father or mother teaches it the names of God and the prophets, the five pillars of Islam and the six pillars of proper belief, the names of the Companions of the Prophet and of the saints. Next they teach it the Fatiha and the prayer al-tahiyyat and the correct way of performing Muslim prayer.
When the child is six or seven years old, it is sent to the mele or another villager who has some medrese training, to be taught the Arabic alphabet. In villages where there was a medrese, it was often the students, the feqî, who would teach younger children the alphabet. When the child had mastered the first textbook on the principles of Arabic reading and writing, the family presented its teacher with a valuable gift (named meftûhane in Kurdish).
For every following book that the child completed, another meftûhane would be presented. The meftûhane upon completing reading the entire Qur’an used to be an especially valuable present. Some families would give the teacher a cow or a calf, a sheep, a goat or at the least a lamb. Once a child no longer studied in its own village but had become a feqî in a medrese elsewhere, the meftûhane took another form. When they had completed a book, they did not give a present to their teacher but held a banquet for their fellow students. People attached much importance to meftûhane in either form; popular belief had it that the student who did not give a meftûhane after finishing a book would become stupid and would never make progress.
As soon as the child had mastered the Arabic alphabet, it would start reading the Qur’an. Little by little it would work its way through all thirty juz’ (sections), learning large parts by heart. After the Qur’an, the children would read the vastly popular devotional text in Kurdish, the Mewlûd of Mele Ehmed (Huseyn) Bateyî, to be followed by another Kurdish text, Mele Xelîl Sêrtî’s Nehcu’l-enam (an introduction to Muslim doctrine). The following books to be studied were Nûbihar, a Kurdish-Arabic primer by the great poet Ehmedê Xanî, and the Arabic Ghâyat al-ikhtisâr, a simple text on the canonical obligations.
For most children, this would be all they would ever read. They would from then on stay at home and on be occupied with work. The few who continued their studies would leave their villages and study in a medrese elsewhere. For this, they should at least have reached the age of twelve. Which children would become feqî, depended much on the circumstances of their familes. In certain large families with four, five or more children, all children would study as far as the Ghâyat al-ikhtisâr, and the one who had shown himself most quick-witted would be sent elsewhere to become a feqî. Other families sent especially children with physical defects, or who were inept at ordinary work, to study in the medrese. Families eager to improve their social status would send more than one child to the medrese, in the expectation that the respect due to a feqî would reflect upon the whole family. Finally there were families that had for generations specialised in religious learning, and that were referred to by such honorific names as Mala Melan (“family of imams”), Mala Weliyan (“family of saints”) or as xwedî ocax (“scions of a charismatic lineage”).
Religious education: on becoming a feqî
Most of the larger villages of Kurdistan, and most urban districts, had one or more mosques. Mosques did necessarily have a medrese attached to them, but the reverse was not true: a medrese without a mosque was unthinkable. Most places that had a mosque had a medrese as well, but the size of the medrese varied widely. In some large medreses there could be as many as 50 to 200 students. Other medreses were smaller and were attended by 10 to 50 feqîs. The smaller medreses were commonly called hicre (Ar. hujra, “cell”). Medrese and mosque were usually parts of the same building but had separate entrances, on opposite sides. The mosque usually consisted of one large hall and a smaller room, the medrese also of one large and one or two small spaces. The feqîs studied and slept in the large room and would eat in one of the small rooms, which were also used to store their clothes and bedding. In summer, they would spend more time on the roof of the medrese, where they would also sleep.
Although prayer in the mosque is considered as more meritorious, the feqîs would only rarely take part in the communal prayers in the mosque and instead perform their prayers individually and quickly in the medrese. They would also at most times refrain from the sunna (recommended) prayers preceding or following the obligatory ones. In fact, there were many feqî who would miss the (obligatory) morning prayer, and some neglected even the other prayers — even though they would later be punished for this. The people in general as well as most of the teachers would not show great concern for the feqîs’ strictness in prayer. According to a widespread popular belief, even if the feqîs only slept this was in itself a form of worship; the feqîs were seen as birds of Paradise.
Mosques and medreses had their independent financial resources in the form of land and property attached to them as pious endowments (waqf). In the villages this was mostly agricultural land, that was rented out to peasants; in towns, mosques used to own shops and houses, as many still do today. The income derived from these resources was usually administered by the local mele; in some places it was controlled by shaikhs or sayyids.
Each mosque and medrese was maintained by a sexton, known as the micewrê mizgeftê. He kept the mosque and medrese clean, cut firewood for the stoves in winter, prevented the flat earthen roofs leaking by pressing them with a heavy stone roller, kept the water containers (for ritual ablution and drinking water) filled, etc. Most of the sextons were godfearing old men, who performed this work as a pious deed. If the sexton was a poor man was he given a salary, either from the mosques’ own budget or from contributions collected by the community around the mosque.
The mele and meletî
The most glorious and prestigious employment in Kurdistan always was meletî, the office of a mele. Meles were always highly respected by the people, and for this reason many people aspired to the position. But becoming a mele was not just a matter of studying religious texts. A mele just as much needed intelligence and understanding of custom and tradition; his position gave him great social responsibilities that he should live up to.
Meletî, the institution of the mele, existed in towns as well as in the villages, but there was a difference between village and town meles. Most town meles received a salary, in most cases from the state. This is still the case, and even more so than in the past. Even those few urban meles who received their incomes from a waqf or from contributions from the people of the neighbourhood were in fact under surveillance by the Turkish state. The role they played in society bears no comparison with that played by the meles in the villages. In what follows, I shall restrict myself to the village meles.
Until the 1940s it was generally the case that a mele who took up meletî in a village did so on the orders of a shaikh or at the request of an agha (tribal chieftain) who had authority over the village. There were some villages that were not under the control of an agha or shaikh; most of the meles who did not depend on an agha or shaikh themselves held positions in such independent villages. Almost every Muslim village in Kurdistan appointed a mele. Large or rich villages could afford to recruit a well-known mele but the smaller and poorer villages had to content themselves with whoever was ready to serve there.
When a shaikh or an agha recruited a mele for one of their villages, they also negotiated about the salary to be paid. Having agreed upon a sum, they then took the mele to the village to introduce him to the villagers, and they told the latter how high the salary was to be. Independent villagers negotiated themselves with the mele they chose, agreeing upon a set percentage of zekat,[6] etc. Where villagers were reluctant to pay the full amount of zekat, they would give at least the part agreed upon as the mele’s share; and where the zekat of a village was not sufficient to pay for the mele’s living, the villagers would add voluntary contributions. Pious villagers would select the best of their sheep or goats to give to the mele as zekat; for it was widely believed that this would bring luck in proportion to the quality of the animal given.
In most villages the mele and his family lived in a house provided for them by the villagers, who also took care of its maintenance. Before winter set in, every household in the village sent the mele a donkeyload of firewood. Economically the mele was usually well off. Besides his share of the zekat, he also received one to two thirds of the other special offerings, such as fitir (at the end of Ramadan) and îsqat (after a death). Each morning most families would send the mele a bowl of yoghurt, some butter or a piece of cheese. When an animal was ritually slaughtered in the village, because of a vow or at a life cycle ceremony, the best cut was always for the mele’s family, before the rest of the meat was divided among the other villagers. Two days a year, in late spring and in autumn, the entire village gave all its milk to the mele; women of the village made it into cheese and butter.
The mele’s life thus was a privileged one, and his privileges were often resented by the poor of the village. They sometimes expressed this resentment openly, badmouthing him and cursing him for taking away their livelihood instead of letting the better-off villagers give their alms to the poor.
Functions of the village mele
The mele’s first duties were to lead the daily prayers in the mosque and other religious rites, and to teach the young the fundamentals of Islam. He pronounced the Friday sermon (xutbe) and homilies (we`z) on various occasions, gave moral counsel and admonished people to perform their religioous duties, presided over marriage ceremonies, wrote amulets for protection or healing.
Besides his religious functions, the mele also had an important role to fulfill in the social and political life of the village community. It was always the mele and the rîspî (elders) of the village who were called upon to make peace in case of a conflict. Whenever people were fighting, the intervention of a mele would make them stop. Even when an oppressive landlord or tribal chieftain beat up someone, a resolute mele could tell him not to, and he would stop. It also often happened that quarrelling parties would by themselves come to the mele to have him resolve their disagreement according to the shari`a.
His standing in the village depended, however, on the number of older students (feqî) he had; if he had none or only a only a few, the villagers were not likely to show him much respect, nor would he have much self-respect. Most meles therefore did their utmost to get at least a number of feqî, even those who did not have much learning themselves (these took care, of course, not to recruit students that were too bright). A mele with whom many feqî studied was addressed by the honorific title of seyda as a sign of respect. Only the most respected meles were known as seyda.
Some mele gained wide renown because of their devotion to teaching and to their disciples. Thus, in the 1950s and 1960s there still were some teachers whose names were known all over Kurdistan, such as Mele Hiseynê Kiçik in Farqîn (Silvan), Mele Mihyedînê Hawêlî in Garzan, Shaikh Cuneydê Zoqeydî, Mele Evdilsemedê Comanî in the Reshkotan district, Mele Fexredînê Torî in Beshiri, etc. They attracted not only Kurdish students but also Turkish youth, mostly from Central Anatolia and the Black Sea coast.
Feqî and feqetî
Once a boy or young man left his home to study religion in another village, he was called feqî. He would present himself at a hicre or medrese and ask the teacher to give him a place to stay. If he was accepted, he stayed on and studied there; if not, he had to try his luck elsewhere. Most teachers preferred only intelligent students; they let their students test the knowledge and intelligence of the new candidate, and only then decided whether they would accept him. No feqî would even think of contesting a teacher’s decision; respect for the teacher was absolute, and people often quoted the saying attributed to Ali: “Whoever teaches me even one letter, I shall be his servant”. When a feqî had completed his studies and became a mele himself, the veneration for his teacher would continue, and the same relationship of respect would exist between the relatives of the feqî and those of his teacher.
In each hicre and medrese in Kurdistan, one of the students was made responsible for the others. Usually this was the eldest or the most advanced of the students. Known as mîrê hicrê of mîrê medresê, he was in charge of all affairs concerning the students and could demand their obedience. If a problem arose between the students and the teacher, or between the students and the villagers, it was the task of the mîr to settle it. Twenty-four hours a day, the mîr would tell the students when to do what, telling them when it was time for memorizing their texts (metn), for bringing food from the village, for eating, for evening study, for a rest or for going to sleep.
Feeding the feqîs
The feqîs were fed by the villagers; most households set one or two portions aside for them. Each feqî would daily go to the household allotted to him to collect his food (known as ratib or tayîn, “allotment”). He would knock on the door with his food bowl; someone from inside would take the bowl, hand it back to him filled with a stew and put a fresh piece of flat bread on top. The feqî would come at a fixed time, and the household was expected to have food ready then. (If the food was repeatedly too late, the teacher or the village elders, warned by the mîrê feqiyan, would give the defaulting household a warning.) Many households gave “their” feqî better food than they would eat themselves. Usually they would also wash his clothes, give him soap and some pocket money, and on occasion buy him new clothes.
In many villages it was usual for the better-off families to invite the mele and all his feqîs once or twice a year to a special meal. These banquets were the topic of much conversation among the feqî, who would loudly praise the family whose invitation they had found most sumptuous. Banquet could follow upon banquet as the households competed with each other to please the feqîs. More modest treats were even more frequent. Someone’s having a bad dream could be a reason to slaughter a lamb to ward off bad luck, and to send the cooked meat to the medrese. A man’s returning from military service or from a long journey was usually an occasion for sending the feqîs a good meal as thanksgiving.
Thus the village took good care of its feqîs; they had no lack of food, so that they did not have to depend on their parents. They led a pleasant and easy life. Conflicts among them or between them and the villages were rare. The feqîs were treated much better than the pupils at the primary schools established by the state, that gradually replaced the medreses, and to whom the villagers never showed the same degree of respect.
The organization of time in the medrese
Studying time was five days and a half each week, from Saturday morning until Thursday afternoon. On those days, the feqîs would be permanently busy: when they were not receiving instruction from the teacher, they would be studying their lessons, tutoring or examining one another, memorizing the declination of Arabic verbs or putting other major texts to memory.
The teacher would get up well before sunrise and perform the morning prayer in the mosque, after which he would start teaching the feqîs. He would instruct them individually every day, beginning with the most advanced and continuing in order of seniority until he reached the youngest. In a medrese or a hicre with many students, the elder students would assist by teaching the younger ones. The feqî whose turn it was would sit on his knees beside his teacher, who would read a text with him. Letter by letter, word by word, sentence by sentence was read and explained. Most of the books studied were in Arabic, but the explanations by the teacher and word-by-word translations were always in Kurdish. This style of teaching was, incidentally, what made the medreses and hicres a stronghold of the Kurdish language, even during the years when it had difficulty surviving elsewhere. In their sermons and homilies too, the meles continued using Kurdish.
The students had to study their texts in little bits at a time, which they then had to read out aloud (or recite, in the case of texts to be memorized) to the teacher, answering his questions about the meaning. When the teacher was satisfied with the feqî’s progress, he told him to study the next bit; if he was not, the student had to return the next day with the same task.
Peer learning had an important place in the medrese, most commonly in the form known as muzakere, in which one student would question or examine another about a book he studied. There were various types of muzakere, but it always involved a discussion between two students on a book they studied. After a feqî had received his instruction from the teacher, he could go and sit with a student who had already mastered the same book and discuss the recent lesson in order to understand it better. Or having studied some text by himself, he could ask an older student to go over the text with him before he was examined by the teacher. Muzakere was not restricted to the texts of the medrese curriculum; the feqî read other books in this way too.
The evenings, from the evening prayer (`isha) until late at night, were the time for mitale (Ar. mutala`a), silent individual study. The feqîs would lie on the floor in a few circular groups and each would silently study his own book in preparation for the next day’s lesson.
The standard curriculum (rêz) included around twenty books that the feqîs had to learn entirely by heart. Rote learning took place in the beginning stages of the study; more advanced students (talib) did not have to do much of it. They studied commentaries (sherh) and glosses (hashiye) on basic texts (metn); it was only the metn that had to be memorized. Special hours each day were reserved for memorizing metn: about an hour in the early morning, before breakfast, another hour after the noon prayer, and some time after the evening meal. On dry days the students would do their memorizing outside, strolling around the medrese and the mosque or walking up and down a flat stretch of land outside the village. On rainy days and in winter, the feqîs would seek out stables and sheds in the village to memorize their lessons in.
Kurdish nationalism in the medrese
The medreses of Kurdistan could roughly be divided into two categories: those where Kurdish identity was strongly emphasized and the apolitical ones where Sufism was dominant. Sufi shaikhs too had their political ambitions, if only to spread their own Sufi order all over Kurdistan and thereby to establish adherence to the shari`a. For all their dislike of the secularist Turkish army, such shaikhs usually did not make a distinction between Muslim Kurds and Turkish, Arab or Persian Muslims. There were also some shaikhs who collaborated with the state authorities, but they had to do so covertly because this conflicted with the independence that the people expected of their spiritual leaders.
In most medreses there were feqîs hailing from many different regions, who often were well-informed about the Kurdish movement. Thus there was an awareness of conditions in various parts of Kurdistan. Young feqîs heard from the older ones about the Kurdish uprisings in the past, about state repression, about the execution of Kurdish national leaders. There were also certain nationalist meles who spoke of the “oppression and unbelief” (zulm û kufr) of the Turkish authorities and who could cite verses from the Qur’an and Traditions of the Prophet to the effect that these oppressors and unbelievers had to be expelled. The fact that most Turks are Hanefis and the Kurds Shafiis made the fusion of religious and ethnic sentiment easier.
The medrese curriculum (rêz)
Below are listed the texts studied in the medrese, in the order in which they were commonly studied.
1. Elîfbêtik: exercises for the Arabic alphabet. As soon as the 29 letters and their various forms (initial, medial and final) are mastered, the feqî begins reading the Qur’an.
2. The Qur’an is the first book that has to be read, even before the feqî understands sufficient Arabic.
3. The next book is in Kurdish; it is the Mewlûd (narrative of Muhammad’s birth) by Mele Ehmedê Bateyî (d. 1491?).
4. Nûbihara biçûkan ["First fruits of spring for the young"] is an Arabic-Kurdish dictionary in verse, written by the great Kurdish poet Ehmedê Khanî (1651-1707).
5. Nehcul Enam [Nahj al-anâm]: a brief text in Kurmanci verse on Muslim doctrine, written by Mele Xelîlê Sêrtî (1754-1843).[7]
6. Another Kurdish text on doctrine, Ehmedê Xanî’s Eqîde. A commentary on this text by Mele Ehmedê Qoxî, also in Kurmanci, was published in 1984 under the title Rêberê sanî şerha Ehemedê Xanî.
7. Xayetul Îqtisar [Ghâyat al-ikhtisâr, also known as al-Taqrîb fî'l-fiqh]: a text on Shafii fiqh in simple Arabic, that is easy to understand.[8]
8. Îbnû Qasim [Fath al-qarîb al-mujîb] is a more substantial commentary on the preceding text. It is believed that the author, after whose name it is known, was a Kurd.[9]
9. Bacûrî: another Arabic text on Shafii fiqh, written by Ibrâhîm al-Bâjûrî. It is a supercommentary on Îbnû Qasim, explaining the same matters in greater detail.[10]
The next series of books all deal with aspects of Arabic grammar:
10. Tesrîfa Kurmancî: a simple work in Kurdish on sarf, the declination of the Arabic verb, written by Mele Elî Teremaxî. Students have to learn this text by heart.
11. Emsîle: an Arabic text on sarf, giving the declinations of various types of verbs. Also to be learnt by heart.
12. Izzî: another Arabic text on sarf, that is also memorized.[11]
13. Ewamila Curcanî [al-`Awâmil, by `Abd al-Qâdir b. `Abd al-Rahmân al-Jurjânî]: a simple text (in Arabic) on syntax (nahw). Memorized by the students.[12]
14. Zurûf: a Kurdish text on Arabic syntax, written by Mele Ûnisê Erqetênî (who died, according to Minorsky, in 1785). Memorized by the students.
15. Terkîb: another Kurdish text on nahw, also by Mele Ûnisê Erqetênî. To be memorized.
16. S’edullaha Sexîr: an Arabic commentary on Jurjânî’s al-`Awâmil (no 13), written by a certain Sa`dullâh al-Saghîr (“the Small Sa`dullâh”).[13] Entirely learnt by heart.
17. Şerhil Muxnî: a commentary on an Arabic text on nahw, known as the Mughnî. The metn, but not the commentary, is memorized.[14]
18. S’edînî: an Arabic text on nahw, consisting of a commentary on the Izzî (item 12). Written by Sa`d Taftazânî, nicknamed al-`allâma al-thânî, “the second scholar”, whom many people believe to have been a Kurd.[15]
19. Hell: a text on nahw, written in a very difficult Arabic.[16]
20. S’edullaha Gewre: another Arabic text on nahw, written by the Kurdish scholar Sa`dullah Gewre (“the Big”).
21. Netaic: yet another Arabic work on nahw, a commentary on Birkawî’s Izhâr.[17]
22. Siyûtî: a text on nahw in Arabic verse by Jalâl al-dîn al-Suyûtî. It is a commentary on Ibn Mâlik’s Alfiyya.[18]
23. Camî: a book on nahw in difficult and terse Arabic, written by Mawlânâ Jâmî. It is a commentary on the Kâfiyya.[19]

In medrese education, completion of Jâmî’s book is considered to be on the same level as the completion of secondary school. The books that are studied from here on are of university level. Feqîs who have reached this stage are called talib. They may also act as mele, but they are still considered as apprentice meles.

24. Muxnît Tulab: a text on logic (mantiq) in difficult Arabic.[20]
25. Îsaxûcî: a commentary on Abharî’s Îsâghûjî by the Kurdish scholar Mele Xelîlê Sêrtî (1754-1843).[21]
26. Qewlehmed: another text on logic, consisting of an extensive commentary on Muxnît Tulab in learned Arabic. As suggested by the title, the author was named Ahmad.
27. ‘Usama Wedd’ê: a difficult Arabic text on composition and semantics. As the title shows, the author is a certain ‘Usam (`Isâm al-dîn).
28. ‘Usama Îstî’arê: a work on the nature of metaphor (isti`âra, majâz) by the same ‘Usam.
29. Şerha Welîd: an advanced work on disputation (munâqasha, munâzara), obviously by a certain Welîd.
30. Haşiya Ebdulwehab: glosses by a certain `Abd al-Wahhâb, said to be a student of Jâmî’s, on the latter’s work on nahw (item 23).
31. Haşiya ‘Usam: glosses on Jâmî’s work on nahw by a certain ‘Usam, also said to be Jâmî’s disciple.[22]
32. Haşiya Ebdulhekîm: superglosses on `Abd al-Wahhâb’s text (item 30).[23]
33. Şerha Şemsî; an advanced work on logic (mantiq), by Sa`d Taftazânî (cf. item 18).[24]
34. Muxteser: a work on philosophy by Sa`d Taftazânî.
35. Şerhul Eqaîd: another work by Taftazânî, that discusses the various schools of Muslim doctrine.[25]
36. Cem’il Cewami': a key work on the foundations of Muslim jurisprudence (usûl al-fiqh).[26]

When the student had finished reading Cem’il Cewami’ he had completed the entire rêz, the standard curriculum. He received a diploma (îcaze) from his teacher and was considered fully qualified to be a mele.

Besides the 36 books of the core curriculum, there were numerous other books that the feqîs might read to deepen their understanding.
Works on Arabic grammar that were often used include: Ibn al-Hâjib’s al-Shâfiyya, `Abdallâh ibn `Aqîl’s commentary on the Alfiyya, a book on sarf by the Kurdish author Mele Elî and two on nahw by other Kurdish scholars, Qizilcî and Qeredaxî. Kurdish literary works much read in the medreses are the Dîwan of Melayê Cizîrî and Ehmedê Xanî’s Mem û Zîn.
On Shafi’i fiqh, the above works were complemented by:
– Silêmanê Kurdî [Muhammad b. Sulaymân al-Kurdî's al-Hawâshî 'l-madaniyya];
– Muhammad Amîn al-Kurdî’s Tanwîr al-qulûb;
– Zayn al-dîn al-Malîbârî’s Irshâd al-`ibâd;
– Ibn Hajar’s Fatâwâ;
– Nawawî’s Minhâj al-tâlibîn and the commentary by Sharbînî, Mughnî ‘l-muhtâj;
– Malîbarî’s Fath al-mu`în and Sayyid Bakrî’s commentary, I`ânat al-tâlibîn;
– Bujayrimî’s Tuhfat al-habîb, a commentary on Isfâhânî’s Ghâyat al-taqrîb;
– al-Taqrîr, a commentary on Nihâyat al-tadbîr;
– a work in Kurdish by Xelîfe Ûsiv (Yûsuf), Îrşadul ‘Îbad.[27]

A wide range of Qur’anic exegeses (tafsîr) was in use in Kurdish medreses, including:
– the Tafsîr al-Jalâlayn and the more elaborate commentaries on it by al-Sâwî, by al-Jamal and by the Qâdî al-Baydâwî;
– Ibn al-Kathîr’s tafsîr;
– al-Zamakhsharî’s 12-volume Tafsîr al-Kashshâf;
– the Tafsîr al-Manâr by Muhammad `Abduh and Rashîd Ridâ;
– Fakhr al-dîn al-Râzî’s tafsîr;
– tafsîr al-Ghâzî;
– tafsîr al-Ramal;
– tafsîr al-Muhmal.

Numerous collections of hadîth were read in the medreses of Kurdistan. The following are only a selection:
– Durrat al-wâ`izîn;
– Nawawî’s Riyâd al-sâlihîn and the 8-volume commentary Dalîl-al-fâlihîn;[28]
– Muslim’s collection of “authentic” (sahîh) traditions;
– Bukhârî’s sahîh collection;
– Ibn al-mukhtasar;
– Tâj al-rasûl;
– Nihâyat al-bidâya;
– Tadhkirat al-Qurtubî;[29]
– al-Fatâwâ al-hadîthiyya (by Ibn Hajar);
– Nûr al-absâr;[30]
– two collections by Kurdish scholars: Xerpûtî and Qersî.

Many books on the life of the Prophet were studied, the most famous of which are titled Siyar al-nabî, Qisas al-anbiyâ and Muhammad rasûl.

A person who had read all of these books was considered a consummate scholar; the common people would refer to him as melê heft ‘ilmî or melê dozdeh ‘ilmî, “a mele of the seven (or twelve) sciences”.

 
[1] This article is an abbreviated version of the author’s Xwendina medresê [Medrese education] (Stockholm: Pencînar, 1993). It was translated from Kurdish and edited by Martin van Bruinessen, who also added the footnotes.

[2] These are the earliest great poets remembered as the founders of classical Kurdish literature. See for instance Mahmud Bayezidi’s remarks in A. Jaba, Receuil de notices et de récits kourdes (St-Pétersbourg, 1860), pp. 8-11. Xanî, the most recent of them, wrote in the late 17th century. All of them emerged from the medrese; the works of Cizîrî and Xanî, especially, show a considerable knowledge of the religious sciences and are pervaded with sufi ideas.

[3] Kurdish feqî is derived from Arabic faqîh, “scholar of Muslim law” but has the more modest meaning of “student of the religious sciences.” Suxte is the common Ottoman term for such students. The term şagird has a more general meaning and can be used for anyone studying or learning a trade.

[4] Mahmud Bayezîdî was the teacher and chief informant of the Russian consul in Erzurum, Alexandre Jaba, at whose request he wrote a number of highly interesting books in Kurdish. Some of these were published by Jaba in 1860 in his Recueil de notices et de récits kourdes, others were published later by Soviet Kurdologists; especially his book on Kurdish custom and tradition (`Adat û rusûmname-i Ekradiye, edited by M.B. Rudenko in Nravy i obycaj Kurdov, Moscow 1963) is still of great interest.

[5] On Se’îdê Kurdî, see Rohat’s paper in this volume.

[6] Everything that the villagers produced — grain, fruits, sheep — was subject to zekat, the Islamic tax. Of wheat, lentils and similar crops, one tenth was to be set apart as zekat; of sheep, one in forty. The mele was only one of various categories of lawful recipients of zekat.

[7] This brief text was printed, in the Arabic script with a Latinized transcription by the present author, by the publishing house Kurdistan in Stockholm in 1988.

[8] Written by Abû Shujâ’ al-Isfâhânî (d. after 500/1106) and widely used wherever the Shafii school of Muslim law predominates. See Carl Brockelmann, Geschichte der arabischen Litteratur, Band I (henceforth: GAL I), 392; idem, Supplementsband I (henceforth S I), 676.

[9] Muhammad b. Qâsim al-Ghazzî was born in Gaza, Palestine, and died 918/1512 (GAL I, 392).

[10] Ibrâhîm al-Bâjûrî (d. 1277/1860) taught at Egypt’s al-Azhar.

[11] Named after the author, `Izzaddîn Ibrâhîm al-Zanjânî (GAL I, 283). Used throughout the Muslim world.

[12] Also universally used; it has been elaborated upon in numerous commentaries (GAL I, 287; S I, 503-4).

[13] This commentary is mentioned in GAL S I, 304 but the author is not identified.

[14] Al-Mughnî fî’l-nahw was written by Ahmad al-Jârabardî, d. 746/1346 in Tabriz (GAL II, 193; S II, 257-8).

[15]Sa`d al-dîn Mas`ûd al-Taftazânî (d. 791/1389), Sharh tasrîf al-Zanjânî (GAL II, 215).

[16] Possibly this was the commentary on Birkawî’s Izhâr (cf. item 21) by Zaynizâde Husayn, titled Hall asrâr al-akhyâr ilâ i`râb izhâr al-asrâr (GAL II, 441).

[17] Muhammad b. Pîr `Abdallâh Muhyî al-dîn al-Birkawî (d. 981/1573) was a famous Ottoman scholar. His Izhâr al-asrâr was widely used in Ottoman medreses. The commentary Natâ’ij al-afkâr was written by Mustafa b. Hamza Adali in 1085/1674 (GAL II, 441).

[18] Ibn Mâlik’s Alfiyya is a famous and widely used text that explains the intricacies of Arabic grammar in thousand (alf) distichs. Suyûtî’s commentary is titled al-Bahja al-mardiyya (GAL I, 299; S I, 524).

[19]Al-Kâfiyya by Jalâl al-dîn b. al-Hâjib. Jâmî’s commentary, al-Fawâ’id al-Diyâ’iyya (written for his son Diyâ’ al-dîn) was widely used, and numerous scholars wrote supercommentaries on it (GAL I, 304; S I, 533-4). Items 30, 31 and 32 in the list are such supercommentaries.

[20] Mughnî ‘l-tullâb, written by Mahmûd al-Maghnisî (i.e., from Manisa in western Anatolia) is a commentary on the famous textbook of Aritotelian logic, al-Isâghûjî by Athîr al-dîn al-Abharî (d. 663/1265). See GAL S I, 543.

[21] Cf. item 5. This commentary is not listed in Brockelmann’s GAL.

[22] A commentary by `Isâm al-dîn al-Isfarâ’inî is listed in GAL I, 304; S I, 533-4. The preceding work by `Abd al-Wahhâb is not listed.

[23] This must be the work by `Abd al-Hakîm al-Siyâlkûtî, which exists in print. According to GAL (S I, 533) it consists of superglosses to `Abd al-Ghafûr Lârî’s glosses on Jâmî. Another `Abd al-Hakîm, al-Lahorî, also wrote glosses on Jâmî’s work but these are relatively unknown (S I, 534).

[24] GAL II, 216. This is a commentary on the Risâlat al-shamsiyya fî’l-qawâ`id al-mantiqiyya by Najm al-dîn al-Kâtibî (GAL I, 466).

[25] Sharh `aqâ’id al-Nasafî (GAL II, 216), itself a commentary on the more basic work by al-Nasafî.

[26]Jam` al-jawâmi`, by Tâj al-dîn al-Subkî (GAL II, 89).

[27] With exception of the last-named two, all these works are well-known and widely used in other regions of the world where the Shafi’i school is dominant, such as Indonesia. A study of the medrese curriculum in Indonesia shows up great similarities with the one discussed here. (See M. van Bruinessen, “Kitab kuning: books in Arabic script used in the pesantren milieu”, Bijdragen tot de Taal-, Land- en Volkenkunde 146, 1990, 226-269, especially the discussion of the fiqh texts at 244-50.)

[28] The commentary is by Muhammad b. Muhammad `Allân al-Bakrî al-Siddîqî (GAL S I, 684; S II, 533-4).

[29] al-Tadhkira bi ahwâl al-mawt wa ahwâl al-âkhira, on death and eschatology by Shams al-dîn al-Ansârî al-Qurtubî (GAL I, 415).

[30] A collection of traditions concerning the Prophet’s birth, by `Abdallâh al-Damlîjî (GAL II, 485).

 

 
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Posted by on August 12, 2012 in Fiqh, History

 

Prepositions, Ka’in, and the Hadith of Intention

ذهب بعض العلماء إلى أن العامل في الجار والمجرور في قوله صلى الله عليه وسلم (إنَّما الأعمالُ بالنِّياتِ) خبر مقدر غير مشتق من الكون أو الاستقرار، فقيل إن تقدير هذا الخبر: (صحيحة)، أو (كاملة)، وقال القرافي([7]): تقديره: معتبرة، وقيل([8]): تعتبر، أو: تكمل، أو: تصح.

والقول بأن العامل في الجار والمجرور من قوله صلى الله عليه وسلم (إنَّما الأعمالُ بالنِّياتِ) اسم تقديره (صحيحة)، أو (كاملة)، أو ما شابه ذلك يرد عليه أمران:
الأول: فساده من جهة المعنى؛ لأن هذا الحديث (إنما الأعمال بالنيات) فيه حصر المبتدأ في الخبر، ومعناه على ما قدروه: ما الأعمال إلا صحيحةٌ، أو كاملةٌ بالنيات، كما أن معنى: إنما محمد في البيت: ما محمد إلا كائنٌ أو مستقرٌ في البيت، وهذا يؤدي إلى الحكم بصحة، أو كمال جميع الأعمال المشتملة على النيات، وهذا المعنى فاسد، فإن قيل ليس بفاسد لأن التقدير: إنما الأعمال صحيحة بالنيات الصحيحة، أو: إنما الأعمال صحيحة بنياتها، باعتبار أن (أل) نائبة عن الضمير، فإنه على هذا التقدير لم يعد (بالنيات) خبرا، وإنما صار حالا؛ إذ المعنى: إنما الأعمال صحيحة في حال كون نياتها صحيحة، ومتعلق هذا الحال هو (كائنة)، أو (مستقرة).
ثانيا: أن العامل في الظرف، والجار والمجرور الواقعين خبرا عند النحاة اسم أو فعل مشتق من (الكون) أو(الاستقرار).
والأولى عندي – والله أعلم – أن تكون الجملة على تأويل مضاف محذوف، يقدر مثلا بـ (جزاء الأعمال)، أو (تصنيفها)، أو كما قال النووي([9]): (صحتها)، أو (كمالها)، ويكون الخبر المقدر إما اسما مقدرا بـ (مستقر)، أو (كائن)، وإما فعلا مقدرا بـ (استقر)، أو (كان)، وعليه يكون المعني صحيحا، وهو: إنما جزاء الأعمال مترتب على نياتها.
يقول ابن حجر: وقال شيخنا شيخ الإسلام([10]): الأحسن تقدير ما يقتضي أن الأعمال تتبع النية لقوله في الحديث: (فمنْ كانتْ هِجرتُهُ)، إلى آخره، وعلى هذا يقدر المحذوف كونا مطلقا من اسم فاعل، أو فعل([11]).

([7]) ينظر الذخيرة1/241
والقرافي هو شهاب الدين أحمد بن إدريس بن عبد الرحمن من علماء المالكية، نسبته إلى القرافة بالقاهرة، له مصنفات جليلة في الفقه والأصول، منها أنوار البروق في أنواء الفروق، والذخيرة في فقه المالكية، واليواقيت في أحكام المواقيت، توفي سنة684هـ. ترجمته في الديباج المذهب1/62، والوافي بالوفيات6/146، والأعلام1/94

([8]) ينظر فتح الباري1/13

([9]) شرح الأربعين النووية1/6

([10]) يريد: الشيخ سراج الدين البلقيني

([11]) فتح الباري1/13

 
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Posted by on August 10, 2012 in Arabic, Fiqh, Hadith/Sunnah

 

Al-Tarmasi

MAHFUZ b. `ABD ALLAH AL-TARMASI
(K.H. Mahfudz Tremas, d. 1338/1920)

[Dictionnaire biographique des savants et grandes figures du monde musulman périphérique, du XIXe siècle à nos jours, Fasc. no 1. Paris: CNRS-EHESS, 1992, p. 30-31]

 

Mahfudz of Tremas was the most respected Javanese `alim of his generation. Born in Tremas (Pacitan district, East Java), he spent the better part of his life in Mecca, where the most influential Javanese kyai of the early twentieth century became his students. He takes the credit for widening the range of works studied in the Javanese pesantren to include the canonical hadith collections and usul al-fiqh, topics not previously studied there.
Mahfudz’ paternal grandfather, `Abd al-Mannan Dipomenggolo, founded in 1830 the pesantren of Tremas, the oldest presently existing. He had studied in the famous pesantren of Tegalsari under its illustrious kyai, Kasan Besari (Hasan Basri), where one of his fellow students was the Surakarta court poet-philosopher Ronggowarsito. Later he visited the Middle East and studied with Sayyid Muhammad al-Shatta’ in Mecca and with the shaykh al-Azhar, Ibrahim Bajuri (d. 1277/ 1860-1). After `Abd al-Mannan’s death (1862), his son `Abd Allah succeeded him as the kyai of the pesantren Tremas.
Mahfudz was `Abdallah’s eldest son. He received his first religious education from his father, studying the works that his grandfather had been licensed to teach by his Arab teachers. At a young age, he was sent to Mecca to continue his studies with the prominent Shafi`i scholar there, Sayyid Bakri (Abu Bakr b. Muhammad al-Shatta’ ad-Dimyati, the son of his grandfather’s Meccan teacher). All his life he remained close to the learned Shatta’ family (originating from Dimyat in Egypt), into which he was virtually adopted; he was buried in the Shatta’ family graveyard. He also studied with Sayyid Bakri’s colleague and rival, Muhammad Sa`id Ba-Basil (who succeeded Ahmad b. Zayni Dahlan as Mecca’s Shafi`i mufti) and various Indonesian `ulama resident in Mecca: Nawawi Banten (Nawawi b. `Umar al-Jawi al-Bantani), `Abd al-Ghani al-Bimawi and Muhammad Zayn ad-Din al-Sumbawi, all of whom taught in the Masjid al-Haram.
Mahfudz did not return to Java, preferring to remain in Mecca, where he was becoming a very prominent teacher. When his father died in 1894, it was a younger brother, Dimyati, who became the kyai at Tremas. Ironically, the fame of Tremas seems to be in large measure due to Mahfudz, although he never taught there. In Mecca, he had among his students Hasyim Asy’ari, Bisri Syansuri and Wahab Chasbullah (`Abd al-Wahhab Hasb Allah), who later, in 1926, were to found the Nahdlatul Ulama (Nahdat al-`ulama), Indonesia’s major traditionalist Muslim organisation. These men are his best-known of his students, renowned because of their political activities. Besides them, he educated numerous others, including some who became influential teachers in their own right, such as `Ali al-Banjari (a Meccan resident of South Borneo origins), Muhammad Baqir al-Jugjawi (of Yogyakarta, but resident in Mecca), Muhammad Ma`sum al-Lasami (the founder of the pesantren of Lasem in northern Central Java), `Abd al-Muhit of Panji Sidarjo (another important pesantren, near Surabaya).
Many of Mahfudz’ students founded pesantren upon their return to Java, which contributed to his lasting impact on the pesantren world. If in the twentieth century the pesantren curriculum is more varied than previously, this is in no small measure due to Mahfudz’ influence. Hasyim Asy’ari, one of Mahfudz’ favourite disciples, established after his return to East Java the pesantren Tebuireng near Jombang and became the first kyai to teach Bukhari’s canonical hadith collection, an innovation in the pesantren curriculum, due to Mahfudz, that gradually spread. Other Javanese kyai became through him acquainted with such usul al-fiqh works, also previously unknown, as Subki’s Jam` al-jawami` and Ibn Haja’s Sharh Mukhtasar.
Mahfudz was also a prolific writer, the author of books on various Islamic sciences (all of them in Arabic). The one book still regularly reprinted and used in the pesantren is his Minhaj dhawi al-nazar, one of the more advanced works on Arabic syntax (a commentary on Bayquni’s work). His most celebrated work, however, is the four-volume Shafi`i fiqh text Mawhiba dhi al-fadl, a commentary on `Abd Allah Ba-Fadl’s Al-muqaddima al-hadramiyya that probably is the major Indonesian contribution to fiqh literature. The Mawhiba is rarely if ever taught in the pesantren; it is used by the senior kyai as a work of reference and is one of the works most frequently cited as authoritative in fatwa by Javanese `ulama.
Mahfudz’ other writings include two voluminous works on usul al-fiqh, Nayl al-ma’mul (a supercommentary on Zakariya Ansari’s Lubb al-usul and its commentary Ghayat al-wusul) and Is`af al-mutali` (a commentary on a versified version of Subki’s Jam` al-jawami`), and another fiqh work: Takmilat al-minhaj al-qawim (additions to Ibn Hajar al-Haytami’s Al-minhaj al-qawim).
He was not only interested in the intellectual sciences but also in Qur’anic recital (qira’a), on which he wrote no less than five books: on the readings of Ibn Kathir, Nafi`, Ibn `Amr and Hamza, and on the qira’a `ashara. Finally he authored two bio-bibliographical texts, Kifayat al-mustafid li-ma `alla min al-asanid (on the lines of transmission from the authors of classical texts to his own teachers) and Al-saqaya al-mardiyya fi asami kutub ashabina al-shafi`iyya (a survey of Shafi`i fiqh works and their authors). None of these works seem to be available in print, however.

[Martin van Bruinessen]

 

Literature:
H. Aboebakar, Sedjarah hidup K.H.A. Wahid Hasjim dan karangan tersiar (Djakarta: Panitya Buku Peringatan alm. K.H.A. Wahid Hasjim, 1957), p 88.
Mahfuz b. `Abd Allah al-Tarmasi, Mawhiba dhi al-fadl `ala sharh muqaddima Ba-Fadl (n.p.: Matba`a al-`amira al-sharafiyya, n.d.).
`Umar `Abd al-Jabbar, Siyar wa tarajim ba`d `ulama’ina fi al-qarn al-rabi` ashar li al-hijra (Mecca: Mu’assasa Makka li al-taba`a wa al-i`lam, 1385/1965-6), pp. 323-4.
Yasin b. M. `Isa al-Padani, Al-`iqd al-farid min jawahir al-asanid (Surabaya: Dar al-Saqqaf, n.d.), passim.
Muhammad S.H., Mengenal Pondok Tremas dan perkembangannya (Tremas, Pacitan, 1986).

 

 

 
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Posted by on August 10, 2012 in Fiqh, History

 

Sharh al-Yaqut al-Nafis

http://archive.org/details/Yaquat-nafes_S_Mustafa

 
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Posted by on July 29, 2012 in Arabic, Fiqh

 
 
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