al-Maqal al-Ma'thur fi al-Qawl al-Mashhur
By Shaykh Muhammad Afifi al-Akiti

I have some basic question on terminology: what are the definitions of al-qawl al-mash-hur and al-qawl al-mu`tamad, both technically and practically? (I know the meanings of these terms in Arabic.) For example, I know that, practically, al-qawl al-mu`tamad on an issue is usually defined by Tuhfa-tul-Muhtaj or Nihaya-tul-Muhtaj, but I don't know the technical definition of the term.

The main problem I'm having is that I don't understand how al-qawl al-mash-hur can be weak or khilaf al-mu`tamad, since this begs the question: kayfa-shtahar in da'uf? (How did it become widespread -- among the ulema, I presume -- if it was weak?) Or am I mistaken in assuming that the shuhra here refers to the adopted position of the ulema, but rather refers to the mash-hur riwaya of Imam Shafi'i, which later mujtahids in the school made tarjeeh of?

Pardon me if the above is garbled mumbo-jumbo. I am rather weak in istilah and a very, very basic student of knowledge. Feel free to take a step back and answer more basic questions if need be.

Barakallahu feekum


bismillahi r-rahmana r-rahim, al-hamdulillah wa s-salatu wa s-salamu 'ala rasulihi l-karim wa radiyallahu 'an al-a'imma al-akhyar alladhina badhalu fi tablighi hadha d-din a'marahum la yuriduna bi-dhalika al-madih wa th-thana' wa-innama yuriduna rida khaliq al-ard wa s-sama' wa-li-dhalika ishtaharat bi-aqwalihim wa-ijtihadatihim al-madhahib!

There are classes of the Rajih [the dominant or distinguished opinion], and Qawl Mashhur is one of them (the others include Qawl Sahih, Azhar, Asahh, Jadid, etc.)

Whenever "al-mashhUr" appears in the Minhaj (23 times were recorded; in bab shahada, under the fasl, lA yuHkamu bi-shAhidin, the phrase ashhur is encountered instead), it has 4 meanings:

1. Historically, there was khilaf in the school on the matter; it may be considered a mas'ala khilafiyya but rarely.

2. It is the rajih opinion between two or more positions.

3. Its muqabil is weak (and technically known as: Qawl Gharib) because of the weakness of the evidence. Sometimes, if it can be established that its sigha [wording] is weak (for example, such that it is not qualified), then it may be adopted only when the apparent meaning of the Qawl Mashhur can be interpreted. This is rare, however, and if it occurs at all, the original report is usually found in a non-fiqhi work.*

4. The khilaf originated not among the Ashab, but with the Mujtahid Imam himself (like the relatively 'weaker' class: Qawl Azhar).

*A good case of this is Shaykh al-Islam Zakariyya al-Ansari's ta'wil of the sigha of the Qawl Mashhur as reported by Imam al-Nawawi in his Sharh of Sahih Muslim in the mas'ala of whether the reward of the Qur'anic recitation reaches the dead.

In lay terms, the Qawl Mashhur refers to one of the conflicting fatwas or riwayas of our Mujtahid Imam. An example of this is in the mas'ala of dibagha [tanning], according to which the Qawl Mashhur as reported by Imam al-Nawawi in the Minhaj is that the inner side of the tanned hide is pure (as well as the outer surface (i.e., the fleece side), without there being any khilaf); and elsewhere we learn that this position is the Mujtahid Imam's Qawl Jadid [New Position]. In scholarly terms, the khilaf is at the level of the Imam himself (and not at the level of our Ashab nor at the level of the Madhhab) and is itself technically known as the Qawlayn or the Aqwal of the Mujtahid Imam (instead of the Awjuh of the Ashab or the Turuq of the Madhhab). Sometimes, however, our Ashab al-Tarjih [jurists known as "the Assessors of the school", such as Imams al-Nawawi and al-Rafi'i] were unable to identify with certainty whether it was a Qawl Qadim [First Position] or a Qawl Jadid of our Mujtahid Imam; therefore, NOT all Qawl Mashhur becomes the Qawl Mu'tamad and the position practiced in the school today. This is because, as Imam al-Ramli famously pointed out in his commentary to the muqaddima of the Minhaj [Nihaya, 1:48], a given Qawl Mashhur and its accompanying muqabil(s) can sometimes be: (a) both Qadim, or (b) both Jadid, or (c) a Jadid and a Qadim; sometimes (d) the Qawl and its muqabil were given by the Imam at different times, or (e) sometimes both were given at the same time; and (f) sometimes the Imam himself made a distinction [tarjih] between one of them, or (g) no tarjih was made between the Qawl or its muqabil, which was then left for the attention of later jurists.

Our recently departed teacher, the jurist Shaykh al-Tarshidi, versified in Rajaz the above observations of Imam al-Ramli for the benefit of latter day students [al-Tarshidi, Tadrib al-Nujaba', 47]:

li-n-nawawiyyi l-iSTilAHu 'azza fI # minhAji-hi fa-khudh-hu ma' qalbin SafI
fa-l-aZharu l-mashhUru fI l-maqAli # min qawlay sh-shAfi'i aw aqwAli
immA jadIdAni qadImAni kamA # immA jadIdun wa-qadImun fa'lamA
qAla-humA fI waqtin aw waqtayni qad # rajjaHa li-l-aHadi aw lA qad warad

[The respected [Imam] al-Nawawi has [made use of] technical terms in his Minhaj; so take from it with a clear mind! The Clearer and the Popular Position is one among two or more opinions of [Imam] al-Shafi'i. Be it from a Jadid and a Jadid or a Qadim and a Qadim or on the other hand from a Jadid and a Qadim, know then [this fact]! Whether he said the two [opinions or more] at one or at different times, or whether or not he had distinguished one [from the other(s), according to what has already been related.]

This is the technical meaning of Qawl Mashhur found in most of our manuals (i.e., tallying with your expression: "the mash-hur riwaya of Imam Shafi'i". However, it is also possible that sometimes our jurists use "mashhur" or "ashhur" in its more literal sense, and if that turns out to be the case (as with the statement of Imam al-Rafi'i concerning the mas'ala of Mizab [drains] in Bab Sharika [partnership]), then it refers to the position that has become widespread (or indeed 'popular') in the Madhhab [i.e, al-qawlu alladhI kathura al-qA'ilUna bi-hi fI l-madhhabi] (i.e., your expression: "the adopted position of the ulema"), which is likely to be the Qawl Mu'tamad, even though not necessarily through the Qawl Mashhur itself.

The Qawl Mu'tamad, is, on the other hand, the one relied upon and the one practiced and is the teaching opinion of the school today, based on one of the earlier Rajih positions. In lay terms, this is the final (or official) position that is now followed by the school. But in reality, this is a psuedo-term [istilah ghalat] and it is not used in the Minhaj (although Imam al-Nawawi has occasionally been observed to use the term in its literal sense), nor was it used in any early manuals of the school with a strict technical meaning. If there is a technical meaning at all to this term, an attempt to formulate a definition [i.e., its hadd naqis, so to speak] would be that this is set by later jurists (usually from the taraf of Imams al-Ramli and Ibn Hajar, such as whenever later authors as in the I'anat, or Imams al-Bajuri, or al-Bujayrimi, say "al-mu'tamad"), after they have made tarjih between or among the various positions of an earlier khilaf at the level of Qawl Asahh (but never Qawl Sahih, and rarely Qawl Azhar or Qawl Mashhur). So technically, the "Qawl Mu'tamad" is not an istilah of its own like the rest of the Rajih classes; but the case is rather that any one of the historical Rajih positions that has been authoritatively adopted by the school and favoured by its jurists and practiced by its followers is by convention called by our later jurists, "al-mu'tamadu" or some similar phrase--so that it is theoretically possible to trace each Qawl Mu'tamad today to one of its original Rajih positions. So it is not uncommon for jurists today to say, for example, "al-aZharu al-mu'tamadu" [the Qawl Azhar which is also the Qawl Mu'tamad] (as in the mas'ala for Naqa' in Bab Hayd).

In practice, if one finds a Qawl Mashhur in an early work, it should always be checked against the latest manuals or with a living teacher of the text. When giving a fatwa to the lay person, and whenever there is khilaf on the issue, it is sufficient to mention, "the qawl mu'tamad is..." (so that the scholar can then see that there may be tafsil in the issue; while the 'awamm will get what he or she wanted).

If you happen to be a native Arabic speaker, your questions are proof of how indispensable are the keys provided by teachers to access the knowledge preserved in our "yellow" books. And this is among the fruits of 'ilm istilahat al-fiqhiyya.

And by this, may we be benefited by their knowledge and join them in the next world!

The insignificant one in obscurity who desperately needs some Fath,

Muhammad Afifi al-Akiti
Oxford
13 Dhu l-Hijja 1424
4 II 2004


Select Bibliography:

al-Ramli. Nihayat al-Muhtaj ila Sharh al-Minhaj al-Nawawi. 8 vols. Beirut: Dar al-Kutub al-'Ilmiyya, 1998.

al-Tarshidi. Tadrib al-Nujaba' fi Ba'd Istilahat al-Fuqaha'. Reneng Agung, East Java: al-Ma'had al-Islami al-Salafi Mahir al-Riyad, 1418 H.



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