Tahqiq Qira'at al-Fatiha min Tabyin Aqwal al-Qadima
By Shaykh Muhammad Afifi al-Akiti

Bis-millah wa-l-hamdulillah dhi-l-qadim 'ani l-jadid wa-hadana bi-nurihi l-'amim ila sirat al-mustaqim wa-nusalli wa-nusallim 'ala rasulihi l-karim wa ba'd.

This article is written in answer to the following questions, for which purpose it is divided into two readings: (a) the fiqhi rulings relating to reciting the Fatiha as a Shafi'i Ma'mum [follower] behind an Imam in an audible [Jahriyya] as opposed to an inaudible [Sirriyya] prayer; and (b) a historical and doctrinal explanation for the Qawl Qadim [First Position] as opposed to the Qawl Jadid [New Position] of the Imam al-Mujtahid al-Shafi'i (may Allah be well pleased with him!) as understood and accepted by the Shafi'i school, after which this article is named: Tahqiq Qira'at al-Fatiha min Tabyin Aqwal al-Qadima.

Allahumma hidayatan li-s-sawab!

“Dear Respected Teachers, I sent this question to the Shafi'i Fiqh forum and I also wanted to send it [to] you as well.

I was reading the book Fiqh Al-Imam by the California based Hanafi teacher, Shaykh Abdur-Rahman ibn Yusuf which states the following: "Imam Shafi'i's popular view is that it is necessary for the follower to recite Surat al-Fatiha in both types of prayers - audible as well as silent. This view, although being the popular one, is not necessarily his final opinion. A careful study of his works reveals this opinion to be his former view, as Ibn Qudama states in his book al-Mughni (1:601). The words of Imam Shafi'i, as relayed in his book Al-Umm, inform us that it is not necessary for the muqtadi to recite Surat al-Fatiha in the audible prayers; however, it should be recited in the silent prayers. He writes: 'And we say that the follower recite in every prayer performed behind an imam, in which the imam recites in a non-audible tone' (Kitab al-Umm 7:153 U) " p 66 of Fiqh Al-Imam. Here are my questions. It seems that this is not the current position of the Shafi'i madhab (from such books as the Reliance and Al-Maqasid) and it appears that this is one of the cases where the fatwa lies upon Imam Shafi'i's earlier position. 1. Shaykh Gibril Haddad writes in his book on the Four Imams, "What is presently known as the Shafi'i position refers to the New except in approximately twenty-two questions, in which Shafi'i scholars and muftis have retained the Old" (p 189) Can you highlight or mention what these twenty-two questions are? 2. How does one recite behind the imam in an audible prayer? Is it better to recite at the same time that the imam is reciting or wait for him to completely finish the Fatiha (and then recite) ? Should the imam pause between the fatiha and the second surah to give the follower a chance to recite? 3. Is this position of Imam Shafi'i (as mentioned in Al-Umm) a strong position within the madhab or is it considered a weak position? Thank you for taking the time to read this question.”

I. As to the First Reading:

The Qawl Mu'tamad [Relied Upon Position] and the final word (to which there can be no adoptable alternative position in this issue; found variously in our books as: shadh, wahin and quwa'il-not just weak but very weak, which means that to follow this is to go beyond the standard of the Madhhab) as far as the Shafi'is are concerned, with respect to the recitation of the Fatiha in a jama'a [group] prayer, is that it is well known that it is Wajib or Obligatory for the Ma'mum or the follower of the Imam in either the inaudible or the audible prayers to recite his or her Fatiha, in every rak'a [cycle of prayer], since this is a part of the Rukn and integral to the Ma'mum's prayer. In the audible prayers, it is Mandub [recommended] for the Imam to have a pause [sakta] after reciting his Fatiha aloud, long enough for the Ma'mum to recite his Fatiha.

However, before going into the details of the above simple and straightforward fiqhi one-line answer to your question, namely how should one practically recite behind the Imam, that is to say, its kayfiyya [procedure], I would like to take the opportunity here to address a number of general concerns relating to the background of your question, particularly in relation to what I had read of your narration of what the Hanafi author wrote on behalf of our Madhhab. Those who want to go straight to the fiqhi material should skip the following eight paragraphs.

As a matter of rule, common sense and adab, one should not rely on particular fiqhi judgements or opinions given or narrated by scholars who are not of the same school. This is especially so, in matters of furu', because the immense detail of the Shari'a is such that a non-specialist (and even if someone is trained as a Shafi'i or has read one or two Shafi'i texts but because of one's immense knowledge and training in another school decides to adopt that other school for one's 'amal, which means that in effect, that person will have no practical and personal experience of being even a Shafi'i 'awwamm) will end up getting lost and drowned by the many conflicting views and opinions that are recorded in our books of Fiqh. It is for this reason that we need living teachers to guide us through this great variety of opinions, so we shall not be easily fooled into following what seems only to our eyes to be 'stronger' evidence or (may Allah save us from this path!) end up following what is easier than what we should have done. Another danger for those who do not know the 'ins and outs' of a particular school, its methods, its rules, its Isnad and transmission and even its history, is that more often than not they will fail to know where to begin and what reference work should they rely on in order to come at a fiqhi ruling set out by the many jurists of that particular school. I suppose a typical example with regard to the Shafi'i school, and one which the author of your book has demonstrated, is that one might think it sufficient to refer back to the work of the founder of the school, Imam al-Shafi'i himself (among whose monumental works on Fiqh, only al-Umm is well known and easily available to (but not readable or easily understandable by) the common man, while some fiqhi works remain either unedited in manuscript form or have been lost or have been destroyed; and among these are the Hujja and Imla' Kabir (which is among his Iraqi works, except for parts of this Imla'), Imla' Saghir, Amali, and the accounts of his final views, as recorded by his students (the major ones called the Mabsut:) al-Rabi' al-Muradi and al-Muzani and al-Buwayti and al-Za'farani (in Iraq); (the minor ones called the Mukhtasar: al-Muzani, al-Buwayti, Harmala, (may Allah be pleased with all of them and for their spreading the school!), and his vast collection of Fatwas out of a total of 113 works the Imam has authored, according to the count of Qadi al-Marwarudhi). It is not uncommon that we Shafi'is occasionally hear people claiming (in our lands, for example; Shafi'i lands, no less) to be a Shafi'i on account of having finished reading al-Umm! (The point here is that one cannot get the full picture without having access to all of the Imam's known works of the Jadid, not to mention the unknown ones.) As I am sure the Hanafi author of your book would understand, like the Hanafis, we too have specific genres and different types of books written for specific functions: basic [Fard 'Ayn] textbooks for the public, training manuals for would-be jurists, encyclopaedic references, khilaf literatures, source books on evidence, works on our methods, and biographical information on our jurists and so on. Despite its name, al-Umm is certainly the last place and the most unreliable work to look at in order to find the practiced (and that is what matters; the 'amal, not the theory) fiqhi rulings of our school.

Instead, as our teachers keep reminding us, it is the later scholars that update the earlier ones, and for that reason it is only right that we have to start, as a beginner in the school would, from the works closest to our time and move backwards in time. It is not an accident of history that among the most basic Shafi'i training manuals today are the likes of Hashiyat Fath al-Qarib and the I'anat al-Talibin, works written in the last century, and the next step up in the curriculum are works written a further 600 years earlier by Imam al-Nawawi (may Allah be pleased with him!), for example, and so on and so forth until of course, its source and foundation, such as the (and yet another non-accident of history for which its title is aptly named:) al-Umm. Therefore, I do hope that you now understand that to read al-Umm in order to arrive at a hukm shar'i for our school is not too different from reading the unrefined scriptural proofs or the primary texts and sources, that is to say, the Qur'an and the Hadith, in order to reach a legal judgement (which the non-specialists and the non-initiated do not have any right to do, because of the possible mistakes and misunderstandings that will be caused). Those who take the short route (whether unintentionally or with good intentions) without consulting living teachers and think that 'what they read is what they get' will almost certainly deprive themselves of the 'behind the scenes' information that is in most cases not recorded on paper, or rather not recordable. This, as I said earlier, is due in part to the immense amount of data and comprehensive detail that our Sacred Law encompasses and has to offer, and in part to the sophistication of how our fiqh is constructed and is to be understood (even the lughawi or lexical meaning of 'fiqh' is "al-fahmu mA daqqa" or 'profound and deep understanding'), for it does not only make use of scriptural proofs (that which you think you can see) but it takes into account also of the other, 'non-scriptural' yet also 'canonical' proofs, namely, Ijma' [consensus] and Qiyas [analogy; including 'aql and reasoning], guarded and understood by the living representatives.

The same goes for works that fall under 'Ilm Khilaf [comparative fiqh] such as the work relied upon by the Hanafi author of your book when discussing this issue, the Mughni of the respected Hanbali jurist, Ibn Qudama. Any beginners in Fiqh should know that these works cannot be relied upon to come to a furu' ruling unlike a work of proper Fiqh (and in nearly all systematic Shafi'i madrasat, students are certainly not allowed to read such works during the first 3-4 years of their formative education) because a work on 'Ilm Khilaf is not the place to look for the definitive, reliable and practiced positions of any school. Instead, it is the simple matn and the basic textbooks of 'Ilm Fiqh (such as what you already have, the two works available so far in perfect English, those that should be relied upon by English-speaking Shafi'is, the Reliance and the Maqasid; and even for non-Shafi'is when it comes to the Hamish of the former book). Do not be fooled by their size: although they are condensed textbooks, they will almost certainly contain the rulings needed by both the scholar and the public. On the other hand, works on 'Ilm Khilaf are only useful consolidated reference tools; they are almost always used by scholars of a particular fiqh school to find the positions of the other schools (as a general indication), and should not be used by the public as is prevalent today. In fact, as our teachers used to remind us: works on 'Ilm Khilaf, if not used appropriately may result in divisive khilaf of the Umma (the ta'alluq of its name, ma sha' Allah!). Perhaps, it is among the signs of the fitna of our times that virtually all modern Islamic universities are offering classes in 'fiqh muqarana' rather than proper Fiqh or the furu', and not only that, to students who have never been trained or perhaps have never even read a single short work on 'Ilm Fiqh.

I do not have access to the book you are referring to (i.e., Fiqh al-Imam), but from what you've written about what the author said I have to point out that there are a number of worrying inaccuracies in his reading of the Mughni. I do not think that we will have space to go into the details of this (lest we go even farther from what you want), but what Ibn Qudama in fact did was to present the two conflicting opinions of our Imam, the Qawl Qadim and the Qawl Jadid (without making it known to his readers which one is which). [Ibn Qudama, Mughni, 2:259-260]. As it is the expected practice with any good works on 'Ilm Khilaf, Ibn Qudama certainly did not perform any Tarjih [assessment] in order to judge which one of the two conflicting qawls of our Imam is in fact the Imam's final position or the stronger one or the correct one there; for Ibn Qudama knew that he has no right to perform such a procedure (because he was a Hanbali and not a Shafi'i specialist). I could not see how your author could have reached a conclusion which Ibn Qudama did not, based upon reading his source: "A careful study of his [al-Shafi'i's] works reveals this opinion [i.e., it is Wajib to recite the Fatiha behind the Imam in every rak'a; namely, the Qawl Mu'tamad of our school] to be his former view [I understand this as Qawl Qadim; if this is what the Hanafi author meant, then he is way off the mark], as Ibn Qudama states in his book al-Mughni." The Hanafi author hoped to corroborate his 'careful study' (which turns out unfortunately to be gravely wrong) from a work on 'Ilm Khilaf. What he should have done then was to look at what Imam al-Nawawi or some other later Shafi'i jurists or even what the Reliance or the Maqasid had to say regarding this issue in order to 'corroborate' his findings; isn't a Shafi'i a better spokesperson for the school than any outsider? Even if it be granted here (which it is not the case) that the Qawl Qadim is what he said it was, the Hanafi author should have been more careful about his assumptions regarding the strict and thoroughly systematised terminologies used in our school. The Imam's 'former view' does not automatically mean it is rejected, because, as students of Shafi'i fiqh will have learned in the course of their studies, not all of the Qawl Qadim are rejected, for there are a handful of them which were made strong by a number of the immediate successors of the Imam and by other early Shafi'i jurists (called the Mujtahid al-Tarjih; the Assessors). These supposedly rejected opinions (as the reader will learn in greater detail in the second part of our article) were retained or rehabilitated, so to speak. Notwithstanding that, I must repeat here, in case readers are lost in this mental, verbal and bracketed snarl, the ruling that it is Wajib for the Ma'mum to recite the Fatiha whether in the audible or inaudible prayers in every rak'a is not a Qawl Qadim of Imam al-Shafi'i.

What is worrying is the Hanafi author's following statement: "Imam Shafi'i's popular view [?-ambiguous term here; does he mean the Imam's or the school's?] is that it is necessary for the follower to recite Surat al-Fatiha in both types of prayers - audible as well as inaudible. This view, although being the popular one [I take this to mean, Qawl Mu'tamad of our school], is not necessarily his [i.e., al-Shafi'i's] final opinion [I take this to mean, Qawl Jadid]." What does he mean by "NOT NECESSARILY his final opinion"? It could be that he is conflating the Imam on the one hand, and the Madhhab, on the other hand (remembering of course, that the Imam is not the whole sum of the Madhhab, and that what is followed is the collective effort of thousands of pious scholars, not just of one man). (Another way of thinking about this is to ask: if it is already the 'popular view' held by living jurists, is that not good enough for the Hanafi author?) Nevertheless, contrary to the Hanafi author's judgement, the Qawl Mu'tamad of our school is indeed the Imam's final position, since the opinion that "it is necessary for the follower to recite Surat al-Fatiha in both types of prayers - audible as well as silent," is the Qawl Jadid of our Imam. Understandably, reading al-Umm for non-Shafi'i specialists is never going to be an easy task and the following conclusions, I fear, are plainly wrong and must be corrected: "The words of Imam Shafi'i, as relayed in his book Al-Umm, inform us that it is not necessary for the muqtadi [the standard term used in our school for a follower is Ma'mum, not as I assume here, the common term used by Hanafis] to recite Sural [Surat] al-Fatiha in the audible prayers; however, it should be recited in the silent prayers. He [i.e., al-Shafi'i] writes: 'And we say that the follower recite in every prayer performed behind an imam, in which the imam recites in a non-audible tone' (Kitab al-Umm 7:153 U)." [A more faithful translation would be: "Whereas [reading waw-Hal; the Sahib al-Hal is the Hanafi position presented in the previous sentence] we say, "In every prayer made behind the Imam while the Imam's recitation is inaudible, he [i.e., the follower; "wara' al-Imam" from the preceding sentence] recites." [al-Shafi'i, al-Umm, 7:256]

The qawl which he quoted is the Qawl Qadim, which by the way, is NOT from al-Umm 'proper', but is from an independent work that has always been transmitted together with al-Umm (this work is like an 'appendix' to the mother book), called Kitab Ikhtilaf 'Ali wa-'Abdullah Ibn Mas'ud; while at the same time, the central chapters of al-Umm clearly record that the Qawl Jadid is as follows: "al-Shafi'i says: It is obligatory [Wajib] for those praying alone or in a group to recite the Umm al-Qur'an [i.e., the Fatiha] in every rak'a; [a way] other than this does not suffice [i.e., because it is the minimum or a Rukn of the prayer]." [al-Shafi'i, al-Umm, 1:210].

Ma sha' Allahu, kana! At first I was taken aback (and not a non-accidental accident as it turns out) that your Hanafi author, innocently quoted and relied upon an opinion of our Imam that is taken from his Kitab Ikhtilaf 'Ali wa-'Abdullah Ibn Mas'ud, which was, in fact, a work concerning the Hanafi school-Allah is merciful indeed! In this work, our Imam assessed some of the conflicting positions between the Hanafis and the two Sahabi which their school relied upon. It is also known by the more common title, Kitab Ma Khalafa al-'Iraqiyyun 'Aliyyan wa-Abdullah or its shorter title, Kitab 'Ali wa-'Abdullah. This work is among our Imam's works on 'Ilm Khilaf (note please, not 'Ilm Fiqh proper; and indeed our Imam is the Wadi' [founder] of this highly specialised science as he is also the Wadi' of 'Ilm Usul [principles and methodology of the Law], in the same way that Imams al-Ash'ari and al-Maturidi were 'founders' of the science of Tawhid [theology], and the 'Arif al-Junayd with 'Ilm Tasawwuf, and the Qadi al-Ramhurmuzi and the Hafiz al-Hakim with the science of Mustalahat al-Hadith [technical terminologies of Hadith], and Abu l-Aswad al-Du'ali with Arabic Grammar [Nahw], and along with the other Wadi'un of this Umma (may Allah be well pleased with all of them and reward their services to this Umma!). His other works on Khilaf include the Kitab Ikhtilaf Abi Hanifa wa-Ibn Abi Layla, Kitab al-Radd 'ala al-Shaybani, Ibtal al-Istihsan, Sayr al-Awza'i, Sayr al-Waqidi, and the controversial, Kitab Ikhtilaf Malik wa-l-Shafi'i. Shafi'i scholars are fully aware that many of the positions found in al-Shafi'i's Khilaf works belong to Qawl Qadim.

Now that we have reached the end of what I have to say regarding the obvious mistakes that needed to be corrected by the (I'm sure) well meaning Hanafi author (and this was done so that you, as a Shafi'i follower, will not be confused in thinking that what we indeed do and act upon today and everyday when we pray in a mosque is not something that is not the final position of our Imam), then, I must here make it also clear to you that this one case of inaccuracy of that Hanafi author should not lead you to have su' al-zann of the author and mistrust anything that is sound and correct from his book. It is rare nowadays to find books defending a Madhhab (as I assume from its title this one is doing) and that is already a baraka for the majority of Muslims who do follow one, whatever their tariqa to Allah is-it is just that I feel disappointed here, at least in so far as the Hanafi author did not get his facts right with regard to the ruling of our school on this matter. (I am just wondering here (and please do not take this seriously but only as a kind 'jest'): since the book is by a Hanafi author, and the title is Fiqh al-Imam (and I'm assuming about Imam al-Mujtadhid Abu Hanifa (may Allah be well pleased with him")), what are you doing then reading a book on Hanafi fiqh and to end up revealing scholars' dirty laundry!). It would be reasonable and understandable, after all, for one to expect a good Hanafi or a Shafi'i scholar, being eager to justify their fiqhi positions, even if it means, occasionally, such as our case here that wrong conclusions were reached. In this case, the Hanafi author should immediately be excused and his mistakes must be overlooked, since he was a Hanafi scholar, and not a Shafi'i spokesman. That is why the Nasiha of our Fiqh teachers will forever remain sound, which it all boils down to: if you need to ask a furu' question or rely on a furu' judgement about something relating to your life, then you should know better than to rely on someone who is clearly not a representative of your own school. Even if a scholar is someone 'famous' today, giving out Fatwas here and there, on TV and radio, if he is unable to say out loud with which of the four Sunni schools he is affiliated, then think hard before accepting his judgements; for confusion and fitna will result from his answers.

The Qawl Mu'tamad of our school is unequivocally stated by Imam al-Nawawi in his Minhaj (it is, by the way, al-Nawawi's Qawl Sahih [Sound Position]):

"The Fatiha is obligatory in every rak'a, except the rak'a of Masbuq [for the meaning of this term, see below]." (In spite of this short and concise expression, it contains more details than the various English statements I have offered above concerning our Qawl Mu'tamad; in these few words, the complete ruling of our school is present and is potentially intelligible to us: wa-tata'ayyanu l-fAtiHatu kulla rak'atin illA rak'ata masbUqin.) [al-Nawawi, Minhaj, 9].

Finally, we come to the heart of the article, namely with regard to your fiqhi question, (question no. 2): "How does one recite behind the imam in an audible prayer? Is it better to recite at the same time that the imam is reciting or wait for him to completely finish the Fatiha (and then recite)? Should the imam pause between the fatiha and the second surah to give the follower a chance to recite?"

It is Mandub, Sunna or recommended for the Imam to have a pause after reciting the Fatiha aloud [jahr], long enough for the Ma'mum to finish reciting the Fatiha. There is no khilaf in the school regarding this rule. The meaning of 'pause' here is for the Imam not to recite anything aloud but to recite instead to himself [sirr]. During the 'sakta' period for the Imam, it is Sunna for him either to busy himself with reciting some verses from the Qur'an (while the Ma'mum recites his Fatiha) or to recite a supplication [Du'a], and some also allow Dhikr (such as Subhan Allah). According to our school, this is one of the six instances of sakta requested (but not required) in our five daily prayers. The most complete discussion of this, both for scholars and public, is by Imam al-Bajuri (may Allah be pleased with him!):

(Some useful technical terms here (all of which are recited in Arabic): Taharrum [opening "Allahu Akbar"; or the Takbirat al-Ihram]; Tawajjuh [opening supplication; or also technically called the Du'a Iftitah or Istiftah]; Ta'awwudh [the words, "I seek refuge in Allah from the accursed Devil"]; Basmala [the words, "In the name of Allah, Most Merciful and Compassionate"]; Fatiha [the opening sura of the Qur'an; also known in our books as Umm al-Qur'an]; Amin [the words, "Ameen"; also known technically as Ta'min]; Sura [any other verses other than the Fatiha]; Takbir al-Ruku' [saying "Allahu Akbar" during the movement from standing to bowing, while raising one's hands in the process, i.e., a type of Takbir al-Intiqal].

"It is recommended [Mandub] to have a slight pause: (1) between the Tawajjuh and the Ta'awwudh; (2) just as it is recommended [to pause] between the Taharrum and the Tawwajjuh, (3) between the Ta'awwudh and the Basmala, (4) between the Fatiha and the Amin, (5) between the Amin and the Sura, and (6) between the Sura and the Takbir al-Ruku'. These are the six pauses that are recommended in a prayer. The length of all of those (pauses) is saying the words, "Subhan Allah"; except for the one between the Amin and the Sura [i.e., the fifth pause], with respect to the Imam in the audible prayers, to the extent of the Ma'mum's recitation of the Fatiha. It is [also] recommended for the Imam to be occupied there with reciting the Qur'an or with saying a Du'a to himself [sirr]; but reciting the Qur'an is better [Awla]. So the meaning of 'pause' there is not reciting aloud, for otherwise the pause would not in effect be requested in the prayer [meaning that the pause is not a 'real pause', one that is devoid of recitation; Fa'ida note for students: among the legal proof-construction [Istidlal] of this sakta is the analogy [Qiyas] with the sakta of the Imam awaiting the second group (and the succeeding third or fourth, if applicable) in the second rak'a of Salat al-Khawf or the Prayer of Peril]." [al-Bajuri, Hashiya, 1:166].

The only exception to this rule, when it is not recommended for the Imam to pause allowing for his Ma'mum to recite the Fatiha, is when the Imam knows that the Ma'mum will not be able to hear him, such as the Ma'mum being deaf [cf. Ibn al-'Imad, Qawl Tamm, 1:70].

However, since this pause is not a requirement but a mere recommendation for the Imam (Shafi'i Imams should note this, as it is a sign of Ihsan in their prayer), what should the Ma'mum do then if the Imam does not pause? There is tafsil in this hukm. The following Kayfiyyat and examples [suwar] are drawn from one of our important manuals, Sayyid al-Bakri's commentary on the Fath al-Mu'in, the I'anat al-Talibin, and a reliable work of the school dedicated to the group prayer, Ibn al-'Imad's famous al-Qawl al-Tamm fi Ahkam al-Ma'mum wa-l-Imam. (Since the I'anat is the main source [2:32-41, passim], citations to it will only be made whenever a text is being translated; however the Qawl Tamm will be referred to when it contains a point not mentioned in the former textbook.)

Case 1: In the case where the Imam does not pause, the next step down (one that is far from ideal) is for the Ma'mum to recite the Fatiha while the Imam recites the Sura (and reciting the Fatiha here is an exemption from the general rule of listening to the Qur'an; see the discussion concerning the school's evidence below). It is still recommended [Mandub] for the Ma'mum to recite the Fatiha after the Imam has finished his Fatiha (and this is known technically as Ta'khir al-Fatiha [delaying the Fatiha] by our scholars), even if it means reciting one's Fatiha over that of the Imam's Sura.

Case 2: The scenario furthest removed from Ihsan is when the Ma'mum recites the Fatiha for no good reason while the Imam is reciting the Fatiha. Nevertheless, there is no harm [la ba's] in doing so and it is the minimum fiqhi ruling in this matter.

However, in the case when the Ma'mum thinks [zann] that either (a) the Imam will only recite the Fatiha (without reciting the Sura) or (b) the Imam will not pause for him to recite the Fatiha or (c) the Imam's habit is to recite very short Suras or (d) the Imam is fast in his recitation, or there is something else that will cause the time remaining after the Imam's Fatiha to be so short that the Ma'mum thinks that it will not be possible for him to complete the Fatiha before the Imam bows (he will have this knowledge, for instance, after experiencing what happened to the Ma'mum in example 1 below, where during the first rak'a he had to lag behind his Imam in order to complete the Fatiha), then the Ma'mum should recite the Fatiha while the Imam is reciting the Fatiha, so that he can keep up with the requirement of Mutaba'a [following closely] in a group prayer (i.e., the seventh condition [shart] of Qudwa [following the Imam] in the Fath al-Wahhab).

This is because, unlike in example 1 below, when the unsuspecting Ma'mum was waiting for the Imam to pause so he could recite his Fatiha, the Ma'mum (in the second rak'a, for instance) had knowledge of the possibility that if he waited until the Imam finished the Fatiha, he can lag behind the Imam again this time if he does not recite the Fatiha while the Imam is reciting the Fatiha. In this case, however, he may not have a valid excuse ['udhr] to lag behind the Imam (while the Ma'mum in example 1 did have, because he lacked this knowledge), and he may be considered a negligent [Muqassir] Ma'mum (see example 3 (b) below) if he waits until the Imam finishes reciting the Fatiha.

There is further tafsil in this rule. If the Ma'mum is a Muwafiq (see below for definition) or he thinks that he will be Muwafiq, then it is Mandub or recommended for him to recite the Fatiha with the Imam (only if he has good reason, that is to say, this knowledge; whatever the case, if it turns out that he is a Muwafiq he will not be negligent). (This is what is meant by Imam al-Ramli's statement that it is Mustahabb to recite with the Imam when one has this knowledge; al-Ramli, Nihaya, 2:231). If the Ma'mum is a Masbuq (again, definition is below) or knows that he might be a Masbuq based on the experience of his previous rak'a, then he must [luzum] recite the Fatiha with the Imam (because in this case, he will be negligent). (Only for students of Fiqh, lest you confuse yourselves: the Ma'mum who thinks that he will have to perform Mufaraqa [to intend to break off from following the Imam and then do so] in order not to invalidate his prayer (i.e., upon reaching the lag-limit for the Masbuq or the Ma'mum without 'udhr, namely, 2 long integrals [Rukn Tawila]) must recite the Fatiha with the Imam, if he wants to remain in the group prayer.) (That is what is meant by Imam al-Bujayrimi's statement, that of the five types of Muqarana or Musawaqa [action performed simultaneously with the Imam], the type that is Wajib, is to recite the Fatiha when one has this knowledge; al-Bujayrmi, Hashiya, 2:351; cf. Ibn Hajar, Tuhfa, 3:187).

This case no. 2 (that the Ma'mum can recite the Fatiha together with the Imam's Fatiha (i.e., Musawaqa or Muqarana) or even to precede him before the Imam finishes his own Fatiha [Musabaqa]) is allowed because preceding the Imam in Rukn Qawli [Spoken Integral] is not as serious as preceding him in the Rukn Fi'li [Active Integral]. It does not mean however, that it is not altogether disliked, since whenever the phrase 'no harm' is used in our school, the technical meaning of Khilaf Awla or 'better not to do' is understood; in this case, although it is better not to do this, the prayer is still valid.

It is the practice of our scholars that whenever this issue is being mentioned, they will usually bring up a conflicting position within the school (which is not the Qawl Mu'tamad), namely that if the Ma'mum has somehow preceded the Imam's Fatiha, then it is Wajib to repeat the Fatiha (while the Imam is still reciting the Fatiha or after the end of the Imam's Fatiha; doing the latter is better). (While the Qawl Mu'tamad is for the Ma'mum merely [Mandub] to repeat his Fatiha.) Because of this, the Muta'akhkhir jurists in the school consider the original rule [al-Asl] for case 2 to be that of Khilaf Awla. [cf. Ibn al-'Imad, Qawl Tamm, 1:73]. It is in deference to these differences, that we have the ruling in the school that to delay the Ma'mum's Fatiha until after the Imam's (i.e., the Ta'khir al-Fatiha) is a recommended act (as long as the Ma'mum expects to recite the Fatiha during the Imam's pause for him or during the Imam's recitation of the Sura).

(The following is something special for very bright students. This is Ibn Hajar's rundown of the legal bases underlying that furu' judgement and is full of meaning and timely. So ta'ammal and think carefully, and seek out and understand their 'ilal!

"For it is known that the cause [mahall] for the recommendation that the Ma'mum delay his [recitation] of the Fatiha is the Ma'mum's expectation that the Imam will pause after the Fatiha long enough for (the recitation of the Fatiha) or his expectation that the Imam will recite a Sura long enough for (the recitation of the Fatiha). On the other hand, the cause for the recommendation that the Imam pause is that he does not know whether the Ma'mum is reciting the Fatiha with him or else he cannot judge [where the Ma'mum is in] the recitation of the Fatiha." [Ibn Hajar, Tuhfa, 3:187]. So, for example, if a Shafi'i Imam were to lead a group of Hanafi Ma'mums, then it is no longer recommended for him to pause after the Fatiha. Likewise, it is safer for the Imam to pause after the Fatiha, unless if they have conferred before the prayer and know where the other stands! This is the optimal ruling and the peak and their Adab.)

In sum, if for some good reason, the Ma'mum does not think that he will be able to recite the Fatiha during the the Imam's recitation of the Sura, then to recite the Fatiha with the Imam will be an exception to the original hukm of Khilaf Awla as we have seen with the case of the Ma'mum in case 2. (For example, this usually happens during the Tarawih prayers in many of the lands which are traditionally Shafi'i, such as the Hadramawt, the Far East and East Africa, where the Imam normally recites short Suras. Historically, this was how the Tarawih was performed in Mecca and Egypt: reading short suras instead of completing the whole of the Qur'an [I'anat, 1:266-267]. Nevertheless, it is better, if the Imam happens to be a Hafiz of the Qur'an, to recite the entire Qur'an (such as by reciting one juz' per night). If not, the hukm is only Khilaf Awla (and the ruling is not at the more serious level of Mandub-Makruh.) If this happens, and the Ma'mum decides to recite the Fatiha while the Imam is reciting the Fatiha, then it is best if he can start his Fatiha only after the Imam has started his so that he does not precede the Imam in the recitation of the Fatiha, just like in the Rukn Fi'li, and only Allah knows best!

Examples that may arise:

Note that in the following examples, the status of Muwafiq is assumed for the Ma'mum. (It is important to mention here that in discussions concerning group prayer, it is crucial to identify the status of the Ma'mum; because whenever a Ma'mum's status is mentioned, for example in our case, Muwafiq, its opposite status, Masbuq, will have a different ruling. Doing this will avoid ambiguity when reporting a fiqhi ruling concerning the group prayer, because very different rules will arise from the two statuses.)

When in a group prayer, Subh or Tarawih, a Ma'mum is in either one of these two statuses. A quick definition of Muwafiq and Masbuq is in order then.

A Muwafiq [as a one word term we can use, 'current'] is the Ma'mum who catches up with the Imam during the standing position [Qiyam] and soon enough for him to finish reciting the Fatiha in keeping with the length of the average recitation [qira'at mu'tadala] according to what is customary ['urf] by the public.

(Note, therefore, that the length of the average recitation (not too 'fast' and not too 'slow') is neither according to the Imam's recitation nor the Ma'mum's.)

A Masbuq [a one-word term would be 'late'] is the Ma'mum who did not catch up with the Imam during the standing position soon enough for him to finish reciting the Fatiha in keeping with the length of the average recitation according to what is customary by the public.

It is therefore possible for the Ma'mum's status to change between being a Muwafiq and a Masbuq at any time during any one of the four rak'as of a prayer; even as the Asl is being a Muwafiq. However, it is usually the case that if one begins the prayer with the Imam from the start, coinciding with the Imam's opening Takbir, the Ma'mum will be a Muwafiq (unless of course in very rare cases when the Imam's recitations are just way too fast (which is very bad) to the extent that the total length of the Qiyam falls short of the 'average recitation' the public takes to finish the Fatiha, whether the Ma'mum recited the Fatiha or not, or whether the Imam recited a Sura or not, whether the Imam did pause or not, or whether the Imam recited the preliminary Mandub readings or not). On the other hand, it is usually the case that if the Ma'mum joined the prayer late such as while the Imam is halfway through reciting Surat al-Kafirun in the first rak'a, the Ma'mum will be a Masbuq. Again, to contrast this with the case of the Ma'mum who joined the prayer late but this time while the Imam is about to begin reciting Surat al-Duha, then the Ma'mum will most likely be a Muwafiq. All of this, of course, depends ultimately on whether the Ma'mum is able to catch up with that 'average recitation' (i.e., the common denominator in arithmetic, so to speak or the Hadd al-Awsat [Middle Term] for students of logic or Mantiq!). In case one is in doubt [shakk] over one's status, whether one is a Muwafiq or Masbuq, then the more precautionary [Ihtiyat] position is to assume that one is a Muwafiq and as it turns out, finish reciting the Fatiha. [Ibn Hajar, Tuhfa, 3:177].

The offshoot here is that if the Ma'mum is considered a Muwafiq, then he will have a valid excuse or 'udhr, like a slow reciter [bati' al-qira'a] would, to lag behind the Imam in order to finish reciting his Fatiha and thereafter following the Imam by default [Qudwa Hukmiyya]. (The term Qudwa Hukmiyya is from Ibn al-'Imad (may Allah be pleased with him!); [Ibn al-'Imad, Qawl Tamm, 1:33].) The hukm for the Masbuq, on the other hand, is that he does not have a valid excuse to lag and he must therefore follow the Imam to the letter, so to speak [i.e., Qudwa Haqiqiyya].

A quick example of Qudwa Haqiqiyya is the case of praying behind the 'way too fast' Imam above so that when the Ma'mum stands from his Sujud or the First Tashahhud (note that one must leave the Tashahhud in this case, even if not finished, in order to prevent oneself from becoming negligent), he finds that the Imam is either about to go into bowing or have already bowed (therefore, not catching up with that 'average recitation' with the Imam while standing); in this case, it is Wajib for the Ma'mum to bow with the Imam and the former is entitled to (and must) skip the Fatiha (but before the Imam bows, whatever one can recite of the Fatiha, one recites as much as possible). The Imam, in this case, will be responsible for the Ma'mum's Fatiha (and this is the only case (it includes the subcase, Ziham [overcrowding], discussed in Bab al-Jumu'a) when the school allows the Ma'mum to omit reciting the Fatiha in a prayer). When he bows with the Imam, even when the Masbuq's Fatiha is not finished, he has caught that rak'a. If he does not bow with the Imam and the Masbuq persists on finishing the Fatiha (or if he manages to finally bow but does not manage a Tama'nina [repose] with the bowing), and during the course of that the Imam straightens up [I'tidal] from his bowing position (whereas if the Imam is already going down into Sujud (while the Masbuq has not yet bowed), the Ma'mum's prayer is invalidated), then, he will have missed that rak'a and will need to replace it when the Imam ends the prayer. It is possible for this to happen in every rak'a if one happens to pray behind an Imam such as this. (Also, if one comes to the prayer late, that is to say, after the opening Takbir (and it is not necessarily the case that he will be a Masbuq here), it is more precautionary then to omit the preliminary Mandub readings and one should begin the prayer immediately with the Fatiha in order to avoid being negligent as in example 3 (b) below; Ibn Hajar, Tuhfa, 3:181 and 3:176).

On the other hand, those who have Qudwa Hukmiyya are permitted, in order to finish their Fatiha, to lag behind the Imam up to three long integrals, namely, up to the second Sujud (if the Ma'mum is still standing), and this is not including the two short integrals (namely, the I'tidal and the Julus [sitting between the two prostrations]). (Note for students reading the Qawl Tamm: what Ibn al-'Imad means when he says a lag of five Rukns is the three long ones (Ruku', 1st Sujud, and 2nd Sujud) plus the two short ones (I'tidal and Julus); Ibn al-'Imad, Qawl Tamm, 1:33.) It goes without saying, that the three long integrals too do not include the Istiraha [sitting of rest after the 2nd Sujud before standing] and any of the Tashahhud [testification of faith].

So if the Muwafiq catches up with his Imam within the limits of these three long integrals, then he will have caught the rak'a also. An extreme example is, before the Imam sits for the Final Tashahhud, the Muwafiq has already bowed. This is so when the length of the Muwafiq's lag has not yet gone into the fourth long Rukn. However, in the case that it does, such as, the Imam is already in the second Qiyam reciting the Fatiha, while the Muwafiq is still in his first Qiyam finishing his Fatiha, the Ma'mum's prayer will be invalidated if he does not do either one of two choices here: (1) the Ma'mum omits from finishing his Fatiha and immediately follows where the Imam is (therefore, in this choice, he has to repeat his Fatiha for this new rak'a); and after the Imam finishes with Salams, he has to stand up and perform the missing rak'a; or (2) the Ma'mum must intend to break off from following the Imam and do so (i.e., Mufaraqa) at that point, and thereafter, the Ma'mum would continue with his prayer alone until he finishes it (thereby, in this choice, he will have to finish reciting the Fatiha). If the Ma'mum fails to make his choice by the time the Imam is in the fourth Rukn while he is still in the first, his prayer is invalidated (whereas, there would be no harm if the Imam's movement coincides with that of the Ma'mum's such as, when the Ma'mum is moving to the bowing position and at the same time, the Imam is moving to either the Qiyam or the Tashahhud).

This is because there is a special dispensation for the Muwafiq slow reciters in our school as well as for other Muwafiqs with a valid excuse, according to which the rules of lagging behind the Imam with respect to the Masbuq are considerably different, in that the Muwafiq's Qudwa status with the Imam is longer than the Masbuq before the former is considered to have missed a rak'a or even to have invalidated his prayer. In truth, the Muwafiq's dispensation is with regard to lagging behind the Imam, while the Masbuq's dispensation is with regard to omitting the Fatiha. (That is why, with respect to the rule of what to do when one is in doubt about being a Muwafiq or a Masbuq, one in fact chooses in the end to disregard the dispensation of omitting the Fatiha in favour of lagging behind the Imam, since the former is a graver dispensation as far as the school is concerned.)

So a Muwafiq slow reciter (whether because the Ma'mum is a non-Arab or because of some natural inability, not because of deliberate waswasa [obsessive doubts], for example), is not entitled like the Masbuq to skip his Fatiha and bow with the Imam; he must instead complete his Fatiha even if it means lagging behind the Imam.

End of extra notes on the Muwafiq and Masbuq. Now to continue with the examples that may arise from our original legal discussion (remembering that in all of the examples below, the Ma'mum is a Muwafiq, except if stated otherwise).

Example 1: Unlike in case 2, the Ma'mum does not know the Imam, and instead, he was expecting and waiting for the Imam to pause (since not only because he does not know what to expect from this Imam, but also, he intended to do the Mandub of delaying his Fatiha and intending to recite the Fatiha during that pause or during the Sura of the Imam), suddenly the Imam does not pause and bows instead (without reciting the Sura, which is rare), or (what is more common) recites instead a short Sura or reciting a Sura very fast, for instance, (but unlike case 1) leaving the Ma'mum very little time to finish his own Fatiha, by which time the Imam bows. In this case, the Ma'mum is considered to have a valid excuse like the slow reciter above. When that happens, the Ma'mum must finish his Fatiha as in the case of the slow reciter (and quickly perform the rest of the Rukn of the prayer to catch up with the Imam), and provided that the Imam is not more than three long integrals ahead of the Ma'mum, the Ma'mum will have caught that rak'a with the Imam. This is an example of Qudwa Hukmiyya.

Example 2: If the Ma'mum was reciting his Fatiha with Tartil [correctly and slowly; that is to say, distinctly pronouncing each letter, which is an established Sunna] (when the Imam is not), and the Imam bows before the Ma'mum could finish his Fatiha, while at the same time, if the Ma'mum were to recite it fast he could have finished in time before the Imam bows, then the hukm of this Ma'mum is like in the example above and the slow reciter, in that he also has a valid excuse to finish the Fatiha. This is another example of Qudwa Hukmiyya. [cf. Ibn al-'Imad, Qawl Tamm, 1:32].

If what is described in examples 1 and 2 happens to an Imam who is not familiar with the rulings of our school (and he becomes shocked by that), then he must come to realize that this is a dispensation allowed by our school. In fact, this should make the Imam think carefully about it so he can see (for his own good, since it is the stricter position and it comes out of Wara') the mercy in not rushing his Qiyam and his prayer, either reciting properly with Tartil or giving the Shafi'i some leeway by pausing for him, or reciting a longer Sura (but not necessarily a Sura that is exceedingly long, for it is still recommended to keep the recitation of the Sura brief [takhfif al-qira'a]).

Example 3:

(a) In the first rak'a of the Imam, the Ma'mum missed his opportunity to finish reciting the Fatiha before the Imam bows, on account of having busied himself with the preliminary Mandub readings or listening attentively to the Imam's recitation of the Sura (while he has not yet recited his own Fatiha) or doing nothing, in this case, he must finish his Fatiha and he has the 'udhr of the three long rukns, as in the case of the first two examples. This is also Qudwa Hukmiyya. The Fath al-Mu'in is unequivocally clear on this:

"The Muwafiq is exluded from the [rule of] the Masbuq. So, if he did not finish [reciting] the Fatiha on account of having been busy with the preliminary Mandub readings, such as the opening supplication, even if he thinks that he will not be able to catch up [reciting] the Fatiha with him [i.e. the Imam, during standing; in which case, it is not recommended anymore for the Ma'mum to recite the preliminary Mandub readings], then, he becomes like the slow reciter [that is to say, the rule of the slow reciter applies to him in this case also] as mentioned previously, indisputably [i.e., without any khilaf in the school]." [I'anat, 2:37-8]

This is the Qawl Mu'tamad of the school on this issue, and as Sayyid al-Saqqaf, another commentator on the Fath al-Mu'in makes clear, this is among the six difficult cases (in fact, there is a final total of 8 cases) of judging between who is considered a Muwafiq and who a Masbuq, which Imams al-Ramli and Ibn Hajar (may Allah be pleased with both of these Muta'akhkhirs!) agreed upon, [al-Saqqaf, Tarshih al-Mustafidin, 111]. (There are famous disagreements between our two great Imams in these very detailed and difficult discussions. These include questions such as the status of the Ma'mum who falls asleep during the First Tashahhud (in such a way that does not invalidate his Wudu', of course) and discovers upon waking up that the Imam is in the bowing position or is about to bow, whether such a Ma'mum is to be considered a Muwafiq or a Masbuq.)

(b) If the Ma'mum is a Masbuq under these circumstances, then, although he is normally entitled to skip the Fatiha and bow with the Imam, this time, he cannot. This is because he is now considered negligent [muqassir]. In this case, he must then recite the Fatiha the length he estimates to be equivalent to either one of the three cases above (and this is another instance of a Muqallid making his own Ijtihad Zanni, such as the case with finding the Qibla), before following the Imam further (and unlike the Muwafiq with 'udhr, according to one qawl, he must this time choose between either (a) Mufaraqa from the Imam or (b) go straight to where the Imam is in order to prevent invalidating his prayer (so if the Imam is in the I'tidal position, he omits his bowing (and thereby loses that rak'a); so that if the latter happens, then his recitation of the Fatiha was in fact done to prevent him from invalidating his prayer). This is an example of Qudwa Haqiqiyya.

Example 4: There has been a suggestion about reciting each verse of the Fatiha 'right after' each verse said by the Imam so that the Ma'mum may listen to the Imam's recitation as well as fulfilling the Mam'um's requirement of reciting the Fatiha (and this will make the Ma'mum completely free to listen to the Imam's Sura if the Imam does not pause). Indeed, this is a subcase of case 2, namely for the Ma'mum to recite the Fatiha while the Imam is reciting the Fatiha. One must remember, however, that case 2 is a step down from case 1, and case 2 is already something done as a last resort, because it is still recommended for the Ma'mum to delay the Fatiha until the Imam finishes his Fatiha. (In other words, if the Ma'mum has no good reason to delay reciting his Fatiha until after the Imam's Fatiha (such as the knowledge the Ma'mum have in case 2) then the hukm is Khilaf Awla.) Nevertheless, there is no harm in doing what is suggested here.

There can however be four possible complications with this suggestion: (a) if the Imam does not pause in between his verses of the Fatiha or (b) the Imam's pause is too quick for the Ma'mum to the extent that he will not be able to finish reciting a particular verse before the Imam starts the next one or (c) because of wanting to keep up with the irregular Imam, the Ma'mum (especially a slow reciter) might be confused and therefore forget which verse he is on or even (d) lose his Muwala [continuity] when reciting the Fatiha. Case (d) is the most serious. Here he would need to repeat his Fatiha (thereby making this thoughtful suggestion a cause of trouble).

According to our school, observing the Muwala is an essential part of reciting the Fatiha. The jurists define 'Muwala' as "to utter each word uninterruptedly by not seperating each one from the next by more than a pause for breath [Sakta al-Tanaffus; known also as the Sakta al-Istiraha or the pause for rest; this applies to those withuot any valid excuse to have a long pause] or stammering [or the like, for those with a valid excuse to have a long pause]." [I'anat, 1:141; also 1:142-3; cf. al-Bajuri, Hashiya, 1:149-150].

This may create difficulties if the Imam recites the last and the longest verse of the Fatiha slowly, and with Tartil, from "SiraATalladhIna...", to the end (note that to stop at "an'amta 'alayhim" is Khilaf Awla; I'anat, 1:147), for example, since it is likely that the Ma'mum's Sakta al-Istiraha may be longer than what is necessary, and this will break the Muwala.

If these problems can be avoided, then it is sufficient. However, the fiqhi ruling concerning example 4 cannot be considered Mandub or recommended by the school. Otherwise the various Mujtahids and jurists of the school throughout our long history would have said it to be so. One can even see that the question of Muwala could be a possible source of doubt and confusion among the Shafi'i 'awwamm and that the scholars would have to deal with questions from the public such as, "Have I observed Muwala, although I stopped for x amount of time?" and so on.

Because this suggestion is dependent again on the style of the Imam's recitation, it may only work for some and not for others. It therefore requires a certain degree of cooperation and understanding between the Imam and the Ma'mum before the prayer; and for us, the cooperation is in the form of the pause that the Imam is requested to make on behalf of the Ma'mum.

I am aware of the sincere wish we all have to listen attentively to the Imam's recitation of the Sura (even in the face of our school's exempting reciting the Fatiha from the command to listen to the Qur'an whenever it is being recited, see below): that is why it is best to pray behind a Shafi'i Imam, if one cannot find another Imam who understands our plight and will make leeway for us. (May Allah make others understand us in this matter, for there is Rahma in this!)

Now down to the technical bits. The following are some legal discussions on the primary texts for the legal rulings of the Shafi'i school. Our discussions of this evidence are restricted to what may cause doubt for followers of our school, because it will probably appear to untrained and non-initiated Shafi'i eyes that they undermine our Qawl Mu'tamad (in that it is Wajib for all, in all cases to recite the Fatiha, except of course for the Masbuq in a jama'a prayer). (Thus reading books on 'Ilm Khilaf is not advisable; nor is it good when answering a fiqhi question to present the evidence of primary texts, because it will only encourage the untrained to be concerned with the evidence instead of with the answers; see below for more on this Nasiha.) Primary texts in favour of the Qawl Mu'tamad will largely be omitted here, except to mention the one principal source (and another below) as related by our Shaykh al-Islam Zakariyya al-Ansari (may Allah be pleased with him!):

"The fifth (Rukn of the prayer) is the recitation of the Fatiha because of the [its 'illa or legal basis is the following] Hadith related by both Bukhari and Muslim [khabar sahihayn] [known as the Hadith of 'Ubada that establishes the Fatiha:] "lA SalAta li-man lam yaqra' bi-fAtiHati l-kitAbi" [There is no prayer for those who do not recite the Fatiha], that is to say, in every rak'a. (al-Sharqawi: this includes both Imam and Ma'mum even in an audible prayer. The author [i.e., Shaykh al-Islam] clarified this Hadith by other Hadiths, and this Hadith comes from more than 20 companions [and technically it is called Mashhur]. As for the [conflicting] Hadith [known as the Hadith of Jabir]: "man SallA khalfa l-imAmi fa-qirA'tu l-imAmi la-hu qirA'atun" [whoever is praying behind the Imam, the Imam's recitation is his recitation; discussed below], it is made weak by Hadith masters [Huffaz])." [al-Sharqawi, Hashiya, 1:186-7].

(It is not my habit to present a discussion on primary texts, and it must be pointed out that presenting what could be 'sensitive' discussions involving contradiction of primary texts [ta'arud al-adilla; which is what will transpire below] is to be discouraged; and discussions of detailed scriptural proofs and dalils should not be presented to those who are unable to make heads or tails of the evidence, that is to say, the public (lest they be encouraged in thinking that the right place to go searching for fiqhi rulings is the voluminous Hadith collections, and not small fiqhi works like the Reliance and the Maqasid; or worse, such discussion might lead simple followers of the other schools to think that our proofs are 'stronger' than the position held by their respective schools (thereby, causing fitna and confusion; I must make it clear, therefore, that it is not my intention to undermine the positions of the other schools by presenting some of the contrary evidence offered by our school), because the concern for all, 'awwamm and scholars alike, should be with the 'amal and the rulings as to whether they are either Wajib, Mandub, Mubah, Makruh, or Haram; and if one had no qualms in trusting the judgements of outstanding Imams such as al-Nawawi and Ibn Hajar, in the first place, then people would spend less time being concerned about the evidence behind the 'amal). This can be a distraction and a source of much confusion (and 'evidence-talk' of this and that being 'stronger' and 'closer' to the truth or to the Qur'an and the Sunna might lead the person to change the way he does things every time he thinks something is stronger until the day he dies). (May Allah keep us away from this fitna and protect us from Iblis' game, and we ask Allah not to make the ta'arud adilla below the cause of mukhalafa qulub with others and may He make it easy for us to go about our normal lives and do what we were originally supposed to do in this dunya!))

I. Among the primary texts is the following Qur'anic verse:

wa-idhA quri'a l-Qur'Anu fa-stami'U la-hu wa-nSitU la'allakum turHamUn [Whenever the Qur'an is being recited, listen to it and be silent, so that you may find mercy.] (al-A'raf, 7:204).

Our jurists explain that the tafsir of the word 'Qur'an' in this verse is not originally referring to verses of the Qur'an itself, but the Friday sermon [khutba al-Jumu'a]. So the real meaning of this verse is: when the Khatib [Friday preacher] delivers his Khutba, then listen to him attentively and be silent contentedly, so that you may receive His mercy. [cf. Tafsir al-Jalalayn 1:318-9; another Shafi'i mufassir, Imam al-Khazin (may Allah be pleased with him!) [al-Khazin, Tafsir, 2:160] confirms this to be what is narrated from among the Ahl al-Tafsir of the Tabi'in: Mujahid, Ibn Jubayr, and 'Ata (may Allah be well pleased with them all!)].

The Shafi'i school (with all due respect to the other schools who disagree with us on this issue, for as Ahl Sunna wa-l-Jama'a, we agree to disagree on this point in order that we find Allah's mercy) says that this verse has no relation [ta'alluq] whatsoever with the issue of reciting the Fatiha behind the Imam, and they disagree (which is a Rahma for the Umma) with those who take this verse as the legal basis for not reciting the Fatiha. Even if we were to admit that this verse is related to the recitation in the prayer (which we do not), then we can say that this is an additional reason why the Imam should pause for the Ma'mum to recite. Also, it could be said that the prohibition in this verse is with regard to the recitation of the Sura, not the Fatiha. Furthermore, the verse is considered by Usuli scholars as an 'Amm Makhsus or 'Amm Mutlaq [Unspecified Absolute; technically, an 'Amm that is specific to 'Amm], because it does not include firstly, a Qarina [indication] that would remove the possibility that it might be subject to Takhsis [specification of the general] by something else, and secondly, it too does not include a Qarina that would remove its general and unspecified character. (The point here is that the verse does not contain an indication that it is preventing the recitation of the Fatiha.) Also, because the verse is an 'Amm Makhsus, some of our jurists maintain that we can benefit only from its general Nasiha and I'tibar [lessons]. For that reason, the verse can only lead to rulings such as either Mandub or its opposite, Makruh, but not definitely Wajib or Haram.

Apart from the two interpretations already mentioned above, there are two more which Shafi'i jurists also accept: (3) that this verse was revealed as one of the legal bases for the prohibition in prayer of Kalam [a fiqhi technical term to mean "an utterance of even one meaningful letter," such as 'qi' [the Fi'il Amr of "wiqaya"] (notice dear readers, how this word, "kalam", is an excellent example of an equivocal term [ism mushtarak] in Arabic (indeed classical Arabic texts are full of equivocal words, and that is one of the reasons why we need teachers to illuminate us as to their often ambigious and obscure meanings or even just to tell us when we are encountering one), for "kalam" is used differently and has specific definitions [hadd] in some of our major disciplines: Tawhid, Tasawwuf, Nahw, and Usul; and despite all this, "kalam" is still not stripped of its lughawi and original lexical meanings]); and (4) for the prohibition of (fiqhi) Kalam in any Qur'anic Majlis.

Even in this last tafsir, which is 'umum [general and unspecified] (with the meaning that when at any time or at any place where the Qur'an is being recited, one should remain silent, otherwise the hukm is Makruh), Shafi'i jurists understand the meaning to have been specified and exempted for one case only (namely, for the case of those reciting the Fatiha in their prayers), by no one other than the Prophet Muhammad (may Allah's blessings and peace be upon him!) himself. This is because another Hadith of 'Ubada (this time, known as the one exempting the Fatiha) has come down to us, and since it is rigorously authenticated [Sahih] (confirmed by the Hadith masters of our school, the Hafizs, al-Hakim and al-Bayhaqi), it has become the primary basis for our Takhsis and of our specification of the general:

Salla rasUlullahi SallallAhu 'alayhi wa-sallama aS-SubHa fa-thaqulat 'alayhi l-qirA'atu fa-lammA nSarafa qAla innI arAkum taqra'Una wa-rA'a imAmikum qAla qulnA yA raSulallahi iy wallAhi qAla lA taf'alU illA bi-ummi l-qur'Ani fa-innahu lA SalAta li-man lam yaqra' bi-hA [The Messenger of Allah (may Allah's blessings and peace be upon him!) was praying Subh and the recitation became difficult for him. When he turned around [after finishing the prayer] he said: "I see that you recite behind the Imam." We said: "By Allah, yes O Messenger of Allah!" He said: "Do not do it, except for the Umm al-Qur'an [i.e., Fatiha], for there is no prayer for those who do not recite it] (Related by Ahmad, al-Bukhari (but in his Juz' al-Qira'a), Abu Dawud, al-Tirmidhi, al-Nasa'i, Ibn Khuzayma, Ibn Hibban, al-Daraqutni, al-Hakim, al-Bayhaqi, and al-Baghawi, with variants).

Other Hadiths that are specific in character [Lafz Khass] and have reliable narrations also show that the Prophet exempted the Fatiha, but there is really no point bringing them out here.

In short, our jurists and usuli scholars see that those who do not make the Fatiha to be Wajib for recitation behind the Imam during the audible prayers are relying on proofs which are 'umum; while both, the exception and the command for the recitation of the Fatiha, are specific. Therefore, what is 'umum has been takhsis and specified here, and this is an example of a Takhsis al-'Amm (in this particular example of (4), of the Kitab by a Sunna Mashhura), following the usuli principle:

wa-binA'u l-'Ammi 'alA l-khASSi wAjibun [The general must be on the basis of the specific].

Because the exemption of this verse is specific only to reciting the Fatiha in the prayer, this explains why we are not supposed to recite, for example, after reciting our minimum Fatiha, any further Sura, but to listen attentively to the Imam's recitation instead. That is why, for all concerned, it is good Adab if the Ma'mum and Imam can cooperate together and be literally muwafiq (from the start!) in this matter, so that, for example, the Imam makes that pause or reads slowly with Tartil (and especially if the Imam is a Shafi'i, who is better placed to know the reasons for doing so, as this comes out of Wara' and what is best and the way of Ihsan). The fiqh ruling is always easy, the difficulty is always with its adab; fiqhi works and judgements are always dry save with their close companion, Tasawwuf. It is through these considerations that the ruling is reached that it is recommended for the Imam to pause for the Ma'mum, as we have seen in the Kayfiyyat above.

In sum, this verse is too general to apply to a specific ruling, and our school has appropriately specified the general here.

II. The Hadith of Abu Hurayra (may Allah be well pleased with him!) which says:

al-ImAmu DAminun [the Imam is the one responsible] (Related by 'Abd al-Razzaq, al-Shafi'i, Ahmad, Abu Dawud, al-Tirmidhi, Ibn Khuzayma, and al-Bayhaqi).

Some may understand this Hadith to mean that the Imam's recitation of the Fatiha is performed on behalf of the Ma'mum. Yes, that may be so for the other schools (and there is Rahma of the Umma in that), but as far as we are concerned, the meaning of this Hadith is that the Imam's recitation is sufficient for those who are considered Masbuq (and that explains why those who are Masbuq should just bow when the Imam bows, even if the Ma'mum did not or has not finished reciting his Fatiha; but of course there is tafsil and further detail regarding that issue).

In sum, this Hadith is too general to apply to a specific ruling, and our school has specified the general by interpreting it.

III. The Hadith of Abu Hurayra (may Allah be well pleased with him!) which says:

innamA ju'ila l-imAmu li-yu'tamma bi-hi fa-idhA kabbara fa-kabbarU wa-idhA qara'a fa-nSitU [The Imam is made only to be followed. When the Imam makes the Takbir, you [too] make the Takbir. When he recites, be silent] (Related by Ahmad, Abu Dawud, al-Nasa'i, Ibn Majah, and al-Bayhaqi).

According to the principle Hadith master of our school, Imam al-Bayhaqi, as well as Abu Dawud (may Allah be pleased with them both!), the phrase, "when he recites, be silent," is added later and there is controversy over who added it. [cf. al-Bayhaqi, Sunan, 2:156-7; and al-'Azimabadi, 'Awn al-Ma'bud, 2:236].

In sum, due to the problems with the matn of this Hadith (technically known as a Mudraj Hadith), it cannot be used to contradict the rigorously authenticated Hadiths of 'Ubada related by Bukhari, Muslim and others; and even if this Hadith were authenticated (which it is not), then the same arguments used to explain the verse of al-A'raf above are used for this Hadith.

IV. The Hadith of Jabir (may Allah be well pleased with him!), which was brought out above by al-Sharqawi:

man SallA khalfa l-imAmi fa-qirA'tu l-imAmi la-hu qirA'atun [Whoever is praying behind the Imam, the Imam's recitation is his recitation] (Related by al-Daraqutni, al-Bayhaqi, and Ibn Abi Shayba).

Unfortunately, as Imam al-Sharqawi (as well as the rest of our fuqaha', including al-Nawawi, al-Ramli, who usually have a discussion of this Hadith) makes clear above, that this Hadith is not rigorously authenticated and is made weak [Da'if] according to the Hadith masters, because of some problems in its Riwaya [narration]. [cf. al-Bayhaqi, Sunan, 2:159].

According to the Shafi'i school, weak Hadiths cannot be used in the primary process of derivation [istinbat] to derive a ruling of the furu' at the level of Wajib or Haram (because they do not have a necessary legal implication [lazim] that can be derived from them, on their own), but only Mandub or Makruh (and as some scholars call it, at the level of what is virtuous, the Fada'il 'Amal, otherwise, not what is at the minimum). Even if this Hadith were rigorously authenticated (which it is not), then the solution of our fuqaha' is to say that this Hadith refers either to the Masbuq or to the recitation of the Sura, but not the Fatiha.

In sum, due to problems with the riwaya of this Hadith, Hadiths such as this one are of no consequence to the rigorously authenticated Hadiths of 'Ubada that contradict them.

V. The Hadith transmitted by Ibn Shaddad (may Allah be well pleased with him!):

man kAna la-hu imAmun fa-inna qirA'ata l-imAmi la-hu qirA'atun [Whoever has an Imam, the recitation of the Imam is sufficient for him] (Related by Ahmad, al-Daraqutni, and al-Bayhaqi, with variants).

The transmission of this Hadith ends with Ibn Shaddad (may Allah be well pleased with him!) who is among the Tabi'in. This Hadith is therefore known as Mursal [technically, a Hadith reaching the Prophet only through the isnad of a Tabi'in], and again, as with the above Hadith, our school does not make use of Mursal Hadiths to reach a definitive ruling.

There is another separate transmission which ends with the Sahaba, Jabir (may Allah be well pleased with him!) and with a slightly different variant to its matn (which would remove the Mursal status of this Hadith). Unfortunately, there are serious problems with its Tabi'in transmissions that make the Hadith weak. [cf. al-Bayhaqi, Sunan, 2:160].

In sum, either this Mursal or the other, Da'if, Hadith, could not measure up with the Sahih Hadiths that form the primary basis for the fiqhi ruling of our school in this matter.

VI. The Hadith of Abu Hurayra (may Allah be well pleased with him!):

anna rasUlallahi SallallAhu 'alayhi wa-sallama inSarafa min SalAtin jahara fIhA bi-l-qirA'ati fa-qAla hal qara'a ma'I aHadun min-kum Anifan fa-qAla rajulun na'am yA rasUlallAhi qAla innI aqUlu ma lI unAzi'u l-qur'Ana qAla fa-ntahA n-nAsu 'ani l-qirA'ati ma'a rasUlillAhi SallallAhu 'alayhi wa-sallama fI-mA jahara fIhi bi-l-qirA'ati mina S-SalawAti HIna sami'U dhAlika min rasUlillAhi SallallAhu 'alayhi wa-sallama [The Messenger of Allah (may Allah's blessings and peace be upon him!) turned around after finishing a prayer in which he recited aloud, and asked: "Did any of you recite [the Qur'an] with me earlier?" A man replied: "Yes, O Messenger of Allah." He said: "I say, am I to struggle with [reciting] the Qur'an?" After hearing that from the Messenger of Allah (may Allah's blessings and peace be upon him!), the people stopped reciting [the Qur'an] with the Messenger of Allah (may Allah's blessings and peace be upon him!), during the prayers which he recited aloud] (Related by Malik, 'Abd al-Razzaq, al-Shafi'i, Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa'i, Ibn Maja, Ibn Hibban, and al-Bayhaqi, with variants).

For the untrained eye, this Hadith might at first appear strong due to the large numbers of scholars relating it (including of course, our own Mujtahid). In fact, this is the very Hadith that our Imam relies on for his Qawl Qadim. The fact that this was the legal basis for the Qawl Qadim indicates that something must be wrong with it to have made the Imam change his mind on this issue and reject his former opinion.

Indeed, as it turns out, this Hadith has, unfortunately, some defects. Imam al-Bayhaqi verified that this Hadith is in fact Da'if. Among its problems is that one of its Tabi'in transmitters, Ibn Ukayma, is unknown. Imam al-Dhahabi, a later Hadith master of our school, confirms al-Bayhaqi's judgement and makes it known that narrations from Ibn Ukayma cannot be used, at least in so far as the school is concerned. Another problem is that the Athar appearing after the Hadith ("the people stopped reciting...") is not that of the Sahabi Abu Hurayra, but is that of the Tabi'i, al-Zuhri (may Allah be pleased with all of them!) [cf. al-Bayhaqi, Sunan, 2:157-9; and al-Dhahabi, Mizan al-I'tidal, 3:173].

In sum, this Hadith could not be used as a source of primary evidence for our school, and it could not be used as an argument against the rigorously authenticated Hadiths that our school relies on as bases for the Qawl Jadid of our Imam al-Mujtahid and the Qawl Sahih of Imam al-Nawawi and the Qawl Mu'tamad of the school.

We have briefly surveyed the most credible parts of the evidence used by those who say that the Fatiha recitation is not absolutely Wajib (and there is Rahma there in this khilaf among the fuqaha' of our Umma). I think it would be appropriate here to end with Imam al-Nawawi's judgement concerning the various Hadith proofs that appear to contradict the position that our school has taken (and this is only suitable for Shafi'i followers, lest others might be distracted from their path by this ta'arud al-adilla):

"The solution concerning the [various] Hadiths used by those who advocate leaving out the recitation [of Fatiha], is that all of these (Hadiths) are weak [Da'if] and none of them are rigorously authenticated from the Prophet (may Allah's blessings and peace be upon him!), while some of them [have the following problems]: Mawquf [attributed to one of the Sahaba] and Mursal [the transmission stops at one of the Tabi'in], whereas some of their narrations are either weak or very weak [du'afa']." [al-Nawawi, Majmu', 3:315].

May Allah shower His mercy unto our Umma in this matter!

I have reached the end of what needs to be said concerning the primary texts that have to do with this issue. Let us summarise for our readers the specific rulings on 'amal, that is to say, the fiqhi and furu' rulings, which should be our concern and the concern of all devotees and 'abids alike, not the evidence which are our 'ma la-ya'nih':

(1) The minimum hukm, according to our school, is that it is Wajib to recite the Fatiha behind an Imam in every rak'a, and at all prayers, and this is the final, practiced, and correct position (to which there can be no adoptable alternative position for Shafi'is) according to the evidence and the methods of our school.

(2) The optimal hukm, which is found in our discussion of the Kayfiyya above, is that the Imam should (that is to say, Mandub and Sunna) pause for his Ma'mum to finish their Fatiha. If he fails to achieve that peak (or to fall from one is not a sin and nor will it affect the validity of the prayer), the Ma'mum can then recite his or her Fatiha when the Imam is reciting the Sura, or even during the Fatiha of the Imam.

While doing that, we have also answered your question, (question no. 3): "Is this position of Imam Shafi'i (as mentioned in Al-Umm) a strong position within the madh[h]ab or is it considered a weak position?" It should be clear to you now, without any fog of confusion, that the position of our Imam al-Mujtahid as understood by your Hanafi author is wrong and that the position which he (also wrongly) quoted and understood to be the Qawl Jadid, is actually the Qawl Qadim of the school, and one that was never 'rehabilitated' by later jurists of our illustrious school. (Because of the shortcomings, you must not take the author seriously, since he is not a Shafi'i specialist.) This brings us to the second part of our article.

As to the Second Reading:

This part concerns your question, (question no. 1): "Can you highlight or mention what these twenty-two questions are? [that is to say, the various Qawl Qadim which later become the Qawl Mu'tamad of our school]."

A word of caution here. The terminologies of our school and the understanding of its khilaf ['Ilm Rumuz and 'Ilm Istilahat al-Fiqhiyya] are subjects normally read by students who have reached a certain level in their study of 'Ilm Fiqh (beginning from the intermediate level [thanawiyya] to the advanced level ['aliyya], and not for beginners [ibtida'iyya]; in other words after completing at least the Fath al-Qarib). For this reason, our answer will be restricted to answering your immediate question. Detailed technical discussions relating to the contradictory primary texts of the Qawl Qadim, and their legal bases, will be omitted.

As narrated from the Isnad of al-Rabi' al-Muradi, a trusted companion of the Mujtahid who transmitted his al-Umm, Imam al-Shafi'i (may Allah be well pleased with both of them!) said: "I have never debated with someone to win [for that is idle talk; and he said this as an apology either because his positions are now different from his teachers or because he changed his mind on the matter], and I should be pleased if the rest of creation learn this book and then for none of it to be ascribed to me." And indeed, as Imam al-Bayhaqi remarked regarding the latter: "What Allah wants is not what others want!" [Ibn Hajar al-'Asqalani, Tawali al-Ta'sis, 148-9].

It is said that those words were uttered in Egypt when the Imam finished his al-Umm (since al-Umm contains positions contrary to the Ijtihad of his earlier teachers, including that of Imam al-Mujtahid al-Malik (may Allah be well pleased with him!), and also some of his own positions when he was in Iraq). If it is asked why he changed his opinions, then the standard reply by Shafi'i teachers would be: he is someone who stands by that which is correct, as long as he thinks it to be correct, for otherwise he would be the first to realize it, well before anyone could remind him of it; that is the reason for the Qawl Qadim and the Qawl Jadid. Indeed, the Prophetic Sunna is true here: when they are right, they receive two rewards, and when they are wrong, they still receive one reward.

The definition of Qawl Qadim is: "That which [Imam] al-Shafi'i said in Iraq or [more accurately] before his move to Egypt." [al-Saqqaf, Fawa'id Makkiyya, 55]. (For the benefit of students: the Qawl Qadim includes also the positions which he laid down in writing [Mansus] even after leaving Iraq, such as during his travel to Egypt (because the Nass was not set in Egypt); on the other hand, the Qawl Jadid includes those positions which he laid down in Egypt, even if he did 'say' them in Iraq (because the Nass was not set in Iraq).)

According to the riwaya of the Amir al-Mu'minin in 'Ilm Hadith, the Shafi'i Muhaddith Ibn Hajar al-'Asqalani (may Allah be pleased with him!), the Imam's second visit to Baghdad was in the year 195 H, and he stayed there for 2 years before returning to Mecca. His third and last visit was in 198, and he stayed there for a couple of months before he abruptly departed for and reached Egypt in the year 199. [Ibn Hajar al-'Asqalani, Tawali al-Ta'sis, 151-2]. This was the period when our Imam was actively writing his works. In fact it was only in the year 198, when he was 48 years of age and after a period of Rihla, teaching and study of 40 years that Allah moved him to start giving out independent Fatwas (that is to say, before this, he was still depending on the Fatwas of his teachers in Medina, Mecca and Baghdad; in other words he had then become a Mujtahid Mustaqill [a separate and independent jurist; this is the highest maqam of Mujtahid out of the six; notice also how this word originally means 'little' in Arabic, and how few they were indeed!]).

The following nazam from Tadrib al-Nujaba', versified by one of our jurists who has recently departed from this world, Shaykh Maysur Sindi al-Tarshidi (may Allah have mercy on his soul!) reminds us of the various students of the Imam who transmitted his Qadim and Jadid respectively [Rajaz]:

al-ShAfi'I l-muTlaqu fa-l-mujtahidu
# mu'assisu l-madhhabi qaymun yuqSadu
la-hu l-qadImu kAna fI l-'irAqi
# jadIdu miSra wa-huwa minhu bAqI
rawA l-qadIma aHmadu bnu Hanbali
# dAwudu ahli Z-ZAhiri l-ladh yanjalI
kadhA abU thUrin huwa l-baghdAdI
# wa-T-TabarI kullun ilA jtihAdi
wa-bnu S-SabbAHi z-za'farAnI wa-l-karA
# bIsiyyu ay abU 'aliyyi shtaharA
rawA l-jadIda minhumu l-buwayTI
# a'nI abA ya'qUba fI rubayTI
wa-l-muzaniyyu wa-huwa ismA'Ilu
# darsun la-hu l-mukhtaSaru l-jalIlu
wa-bnu sulaymAna r-rabI'u li-l-murA
# di nsub sariyyun rAwiya l-kutbi yurA
wa-bnu sulaymAna r-rabI'u qablah
# fI l-qabDi dhA l-jIziyyu nawwir faDlah
Harmalatun yUnusu 'Abdi l-a'lA
# wa-bnu z-zubayri l-makki HAza faDlA
muHammadu bnu 'AbidillAhi ilA
# madhhabin mAlikin akhIran aqbalA
abUhu 'abdullAhi qAlU wa-huwa min
# ba'Di ruwAti l-mAlikiyyi qad zukin

[When the word 'al-Shafi'i' is used, then who is meant is the Mujtahid who founded the school, which is so faithfully followed.
The Qadim belong to his time in Iraq,
the Jadid to his stay in Egypt and they are what remain.
The relators of the Qadim are Ahmad bin Hanbal,
Dawud of the Zahiris, who moved away,
likewise Abu Thawr, who is from Baghdad,
and al-Tabari, each one of whom went as far as (the maqam of) Ijtihad,
and Ibn al-Sabbah al-Za'farani,
and al-Karabisi, the famous Abu 'Ali.
The relators of the Jadid include al-Buwayti,
I mean Abu Ya'qub in my humble opinion (the Nazim's),
and Isma'il al-Muzani,
whose study is the splendid Mukhtasar,
and Ibn Sulayman al-Rabi'-make his Nisba al-Muradi-
is noble and is known to have transmitted a number of the works (of our Imam);
while before him was Ibn Sulayman al-Rabi',
who received the Nisba, al-Jizi (may Allah illuminate his virtues!),
and Harmala and Yunus the son of 'Abd al-A'la
and Ibn Zubayr of Mecca, who have virtue,
and also Muhammad, the son of a devotee of Allah,
who at the end embraced the Madhhab of Malik,
and about whose father, 'Abdullah, scholars say, "he is one
who understands among those who transmit the Maliki school."]

[al-Tarshidi, 'Umdat al-Fudala', 155-6].

Know that every legal discussion in which the Qawl Qadim and Qawl Jadid concur, is the position taken into consideration by our jurists. If the fatwas of the Qawl Qadim differ with that of the Qawl Jadid, the former is unquestionably abandoned (because it is abrogated [Mansukh] by the latter, and its status according to Imam al-Isnawi is like an opinion outside of the Madhhab or from another school; al-Kurdi, Fawa'id Madaniyya, 241), except for a number of them that are re-used, listed below. The verses of Shaykh al-Tarshidi, remind us again [Rajaz]:

wa-mna' mina l-qadImi ayDan* Haythu lam
# ya'Dud HadIthun lA mu'AriDa 'taSam
wa-mA atA minhu l-jadIdu naSSa
# 'alA khilAfihi falA idh nuSSa
dhAka murAdu qawlihim inna l-qadIm
# laysa bi-madhhabi l-imAmi l-mustadIm

[And refrain also (from giving a Fatwa) from the Qadim,
whenever a Hadith does not support it, no opponent maintaining that it does;
when what comes from it and what the Jadid has set
are different, do not (give a Fatwa), since it is fixed:
that is the meaning of their saying, "the Qadim
is not the Madhhab of the Enduring Imam."]

[al-Tarshidi, 'Umdat al-Fudala', 37] [*For students: "aydan" can be read either as a Hal or a Masdar here.]

However, the colleagues and immediate successors of our Imam, including the Mujtahid al-Tarjih of the school (like the Shaykhan, al-Rafi'i and al-Nawawi), after detailed and considered assessment, have come to the conclusion that some of these Qawl Qadim have stronger evidence than their Qawl Jadid counterparts. These are the Qawl Qadim that became the Qawl Mu'tamad of the school. Again, the verses of our teacher benefit us [Rajaz]:

wa-bi l-qadImi aftA l-aShAbu ladA
# addA jtihAduhu** ilayhi wa-badA

[The jurists have given a Fatwa that favours the Qadim, and by exercising their Ijtihad towards it, they have made it right.]

[al-Tarshidi, 'Umdat al-Fudala', 37]. [** Fa'ida: the pronoun is read in the singular because its 'A'id or antecedent, "Ashab", is singular in meaning; but in English they can only be referred to in the plural!]

Apart from the Qadim-vs-Jadid list, there is also another list of legal questions in which later jurists disagreed with the positions held by our Imam (whether Qadim or Jadid), and they number only 13. These changes were made because the original rulings were considered a great difficulty [mashaqqa] and more or less 'impractical' or difficult to carry out [ta'assur al-'amal]. Sayyid Basawdan listed them in his Maqasid al-Saniya, and among the well known ones are: the ruling that the bride's guardian [wali] must not be a corrupt person [fasiq] was overturned and later jurists allowed it [one can see an example of this discussion in Ba 'Alawi, Bughya, 202-3]; and that it is sufficient for the intention [niyya] that one makes at the beginning of the Salat to coincide with the Takbirat al-Ihram as far as reasonably possible [muqarana 'urfiyya] instead of muqarana haqiqiyya, where it has to exist from the first phrase of "Allahu Akbar" to the last of it [a summary discussion of this can be found in al-Hisni, Kifayat al-Akhyar, 103] [the full list by Basawdan is recounted in al-Saqqaf, Fawa'id Makkiyya, 70].

For those not familiar with the methods of our school, a question may therefore arise as to how Shafi'iyya followers could follow something not held by their Mujtahid Imam. The answer for the non-initiated is simple: it is proof that Ijtihad and minor changes (I like to think of this as 'maintenance') of the school continues well after the death of the Imam himself. The answer for the initiated is that these are cases when the Nass [what the Imam has set] contradicts the Madhhab [what the school says]. The Qadim-vs-Jadid questions is an example of what our scholars call the al-Mukhtar min haythu al-Dalil [preference on the basis of evidence], while the 13 questions of Basawdan is an example of al-Mukhtar min haythu al-Madhhab [preference on the basis of the school]. The changes which depart from the positions held by their Mujtahid Imam were nevertheless carried out according to the methods and rules of the istinbat and qiyas as laid down by the Wadi', and are followed systematically and strictly. This is why, although the word used to describe "Shafi'i jurists" in our books is "Ashab", a plural by form, but its meaning is in fact singular, because as a 'school' or 'body' they all share the same method, aims and concerns, and maybe likened to a 'family' [as our teacher Shaykh al-Hajini (may Allah protect him!) eloquently phrased it: lafZuhA jam'un wa-ma'nAhA mufradun; al-Hajini, Thamra Hajiniyya, 12]. All of this is understood from the famous anecdote of "al-Shafi'i and the wall" (and as I understand it, some irresponsible parties have hijacked it and quoted it out of context in order to suit their own agenda, may Allah protect us from their folly!):

"If the Hadith is authentic, it is my Madhhab [apart from the meaning of 'school' in English, what is meant here is also 'method'"; [idhA SaHHa l-HadIthu fa-huwa madhhabI]

This authentic saying of our Imam (along with its many other variants, such as: "if my position agrees with the Prophetic Sunna, then accept it, if not, throw it to the wall") is found in nearly all of our fiqhi literature, particularly in those works written by our Mujtahid Tarjih and earlier jurists. Shafi'i scholars are fully aware that these sayings (known as the Sigha Tashih al-Shafi'i) refer only to the legal assessments of a disputed question among our jurists, and the legal discussions of Jadid-vs-Qadim are among them. (So it is not directed, dear readers, to all of you or the public!) In fact, the history behind why the Imam uttered these 'Sigha Tashih' is to defend his abandoning of the Qadim and his establishing the Jadid upon arriving in Egypt. (If the Imam's justification does not make sense to you, then imagine that you were the one who asked him the following question when he arrived in Egypt: "Why did you change your position from the Qadim to Jadid, O' Imam?") In places where the Qawl Qadim is made strong, over that of the Qawl Jadid, or in cases when there are khilaf among our jurists regarding a particular issue, the jurist in question will without fail quote this saying (one can see Imam al-Nawawi in action when he performed Tarjih on the controversy over Ma' Mushammas [water exposed to the sun] with Imam al-Rafi'i; [al-Nawawi, Majmu', 1:136]).

Now it would be appropriate to act on the lessons we have derived from the first part of our article: to defer to the way the Imam's own students and representatives understand the Sigha Tashih. Again, I cannot think of anyone better qualified to understand it than Imam al-Nawawi:

"Its meaning is not that [whenever] anyone considers a Hadith to be authentic, he can then say, "this is the Madhhab of al-Shafi'i," while acting [only] on its apparent [meaning]." [al-Nawawi, Majmu', 1:99]. (Very true indeed, especially against those who do this in the name of "following the Qur'an and the Sunna".)

A classic explanation of this Sigha Tashih is given by Imam Amin al-Kurdi (may Allah be pleased with him!):

"Imam al-Shafi'i (may Allah be well pleased with him!) said: "If the Hadith is authentic, it is my Madhhab, and throw my saying to the wall [i.e., idiomatic Arabic to mean 'reject his opinion']." Its meaning is: if you [O' my colleagues] are uncertain about some ruling and I [al-Shafi'i] am not absolutely certain about it, while at the same time the Hadith on this [ruling] according to you is authentic, then, use the Hadith! An example is the [case] of the time of Maghrib. For uncertainty [i.e., khilaf in our school] occurred concerning it, whether it lasts till the time of 'Isha' or not? The Hadith that is authentic according to his companions [i.e., Shafi'i jurists] is that it lasts untill the [red] horizon disappears [which contradicts the Qawl Qadim, namely that Maghrib lasts for a short time only, that is to say, it lasts long enough for one to prepare for the prayer and finish a five moderate-length rak'as of prayer (so its never a good idea to delay your maghrib prayer!)]. Its meaning is not, as some people of limited insight [ba'd al-qasirin] understand it, that "whenever any Hadith is authentic, it is my Madhhab." Since, there are many Hadiths which are authentic but [Imam] al-Shafi'i (may Allah be well pleased with him!) did not use them, on account of some problems [iqtida'] with them, such as it is either being specified [Takhsis] or he knew about something abrogating [Nasikh] [it]." [Amin al-Kurdi, Tanwir al-Qulub, 400]. (The case above about the time of Maghrib is the eighth Qawl Qadim in our list below and the meaning of "five moderate-length rak'as of prayer" is explained there.)

It is the inability of outsiders to understand this, namely that that the Imam is not the whole sum of the Madhhab, but the Madhhab is the collective effort of thousands of specialists, is what might have led your Hanafi author (in the first part above) to be mistaken. The Shafi'i school is of course, not the only one with this circumstance; other schools too have their own hermeneutics (and as we have been told by our teachers, theirs is to an even greater degree of khilaf).

Regarding the number of Qawl Qadim which are re-used, Imam al-Nawawi in his Rawda says that there are around 20 to 30 of them. [al-Nawawi, Rawda, 9:279]. There is khilaf among our jurists about their precise number, but the lowest accepted number of Qawl Qadim that later became the Qawl Mu'tamad is precisely, 19, as established by Imam al-Nawawi in his Majmu' (and verified by Qadi al-Sulami al-Munawi in his Fara'id al-Fawai'd, and confirmed later by the Muhaqqiq al-Kurdi in his Fawa'id Madaniyya, and last reported by Sayyid al-Saqqaf). On the other hand, the riwaya of 22 questions, which you mentioned, comes from the Tuhfat al-Habib of Imam al-Bujayrimi in his super-commentary to the Iqna' [al-Bujayrmi, Hashiya, 1:77].

Here we will list the 19 re-used Qawl Qadim that our jurists have agreed upon:

1. To do Tathwib [saying, "prayer is better than sleep"] whether in the first or second adhan [call to prayer] of the Subh; Qadim: Mandub; Jadid: Makruh.

2. To keep away from impurities in water more than the qullatayn [216 litres]; Qadim: not required; Jadid: required.

3. To recite Suras in the last two rak'as of the prayer; Qadim: Makruh; Jadid: Mandub.

4. To clean oneself of filth after using the toilet [istinja'] using stones (or anything that can take the place of stones) for faeces beyond the bodily outlet but not beyond the inner buttocks; Qadim: sufficient; Jadid: not sufficient (therefore, need water).

5. Contact between the skin of a man and of a woman when they are each other's Mahram [unmarriageable kin]; Qadim: does not invalidate the wudu' [ablution]; Jadid: invalidates it.

6. Running water that comes into contact with impurities; Qadim: does not become impure, except if the water changes; Jadid: becomes impure, whether water changes or not.

7. To pray 'Isha' early; Qadim: Mandub; Jadid: Mandub to pray 'Isha' late.

8. The time of Maghrib; Qadim: lasts until 'Isha' time; Jadid: lasts until one performs the wudu', cover the awra, make the adhan, and pray five moderate-length rak'as of prayer (meaning, the Fard and its accompanying Rawatib, more or less).

9. To intend to follow the jama'a in the middle of the prayer after the Takbirat al-Ihram of the Ma'mum; Qadim: allowed; Jadid; not allowed.

10. To eat a slaughterable tanned hide (such as lamb's hide); Qadim: Haram; Jadid: Halal.

11. To impose the penalty of Zina [illegal sexual intercourse] on someone who has had sexual intercourse with his slave-woman who is his Mahram (such as being a Mahram through breast-feeding); Qadim: Wajib Hadd; Jadid: only Ta'zir [disciplinary action].

12. To clip the nails of the corpse; Qadim: Makruh; Jadid: Mandub, except for those who died as a Muhrim [in a state of Ihram during their pilgrimage].

13. The Muhrim has the option of Tahallul [being released from the state of the Ihram] when sick; Qadim: allowed (but one needs to slaughter in expiation [dam]); Jadid: not allowed.

14. The consideration of Nisab [minimum value] for Zakat Rikaz [Zakat on the discovery of pre-'Islamic' treasure]; Qadim: no Nisab; Jadid: include Nisab.

15. The Ma'mum recites 'Ameen' aloud, when the Imam does that in an audible prayer; Qadim: Mandub; Jadid: Makruh.

16. If someone dies with unperformed fast-days, the responsible family member [Wali] can make up the fast on behalf of the dead; Qadim: allowed; Jadid: not allowed.

17. To draw a line in front of one's place of prayer, if there is no Sajjada [prayer mat] or barrier [sutra]; Qadim: Mandub; Jadid: not Mandub.

18. When one of the two partners in 'Aqd Sharika [partnership contract] refuses to spend money on their venture, if they have not specified their responsibilities; Qadim: the other can override him to provide the capital; Jadid: one cannot override the other who refuses, but it is sufficient for the other to pay compensation (by subtracting from the final profits, for example).

19. The type of the Mahr [bride's marriage payment] compensation for the Groom; Qadim: Daman Yad [fixed compensation]; Jadid: Daman 'Aqd [contractual compensation].

[cf. al-Nawawi, Majmu', 102-3; al-Munawi, Fara'id al-Fawa'id, 60-8; al-Kurdi, Fawa'id Madaniyya, 242-248].

Here, we have achieved what we set out to do. To end this discussion, let us read together the following verses about these 19 Qawl Qadim from Imam al-Kurdi's Fawa'id (numbers in square brackets after the verse refer to the standard order of the 19 Qawl Qadim listed above) [Kamil]:

masA'ilu l-fatwA bi-qawli l-aqdami
# hiya li-l-imAmi sh-shAfi'iyyi l-a'Zami
lA yanjusu l-jArI wa-man'u tabA'udin
# wa-T-Tuhru lam yanquD bi-lamsi l-maHrami
wa-stajmiran bi-mujAwizin 'an makhraji
# li-S-SafHatayni wa-law talawwatha bi-d-dammi
wa-l-waqtu madda ilA maghIbi l-maghribi
# thawwib bi-SubHin wa-l-'ishA'a faqaddimi
lA ta'tiyan fI l-akhirayni bi-sUratin
# wa-l-iqtidA'u yajUzu ba'da taHarrumi
wa-l-jahru bi-t-ta'mIni sunna li-muqtadin
# wa-l-khaTTu bayna yaday muSallin 'alamin
wa-Z-Zufru yukrahu akhdhuhu min mayyitin
# wa-kadhA r-rikAzu niSAbuhu lam yalzami
wa-yaSiHHu 'an maytin SiyAmu wa-liyyihi
# wa-yajUzu sharTu taHallulin li-l-muHrimi
wa-yajUzu ijbAru sh-sharIki 'alA l-binA
# wa-'alA 'imArati kulli mA lA yaqsami wa-z-zawju in yakuni S-SadAqu bi-yadihi
# fa-DamAnu yadi hukmuhu fI l-maghrami
wa-l-jildu ba'da d-dabghi yaHrumu akluhu
# wa-l-Haddu fI waT'i r-raqIqi l-maHrami

[The Fatwa questions that favour the Qawl Qadim by Imam al-Shafi'i the Great are:
The flowing stream is not dirty [6], and one may stop distancing oneself [2],
and being pure is not nullified by touching the Mahram [5].
Perform Istinja' using stones for what has passed beyond the exit
up to the two enfoldings, even if it is soiled with blood [4].
The time (of Maghrib) extends until the redness at the horizon has
disappeared [8].
Do the Tathwib for Subh [1], and bring forward the 'Isha' [7]!
Do not recite a Sura in the last two rak'as [3]!
Following the Imam is allowed after the opening Takbir [9],
while to say the 'Ameen' aloud is recommended for the follower [15],
and to draw a line in front of the worshiper makes a sign [17].
As for the nails, it is disliked to trim them from the dead [12].
The minimum value of the treasure find need not be considered [14].
The fast of the Wali for his dead is valid [16],
and the option of Tahallul for the Muhrim is allowed [13].
Forcing the business partner to build is allowed,
as well as to repair anything that is not assigned [18].
As to the groom, if the dowry has been placed in his hands,
then as to damages, the compensation is fixed [19].
The hide after tanning is unlawful to eat [10],
and there is punishment for having intercourse with the Mahram slave [11].]

[al-Kurdi, Fawa'id Madaniyya, 249].

May these readings become a means for you to dispel your doubts and misgivings held by our big family, so that you may now pray behind the Imam with our brothers and sisters with ease and be removed from the controversies caused by our cousins!

May this be of benefit! Success is only with Allah, and any mistakes are mine, so let us then end with the Du'a recited at the end of the Opening:

Rabbi ghfirlI wa-li-wAlidayya! Amin! Amin!

[O Lord, forgive me and both my parents!]

Blessings be upon our Prophet Muhammad, who concealed all idle talk, and is the guide as we walk, and upon his family and companions, and on the four Mujtahid Imams, especially our Imam al-Shafi'i, and on the Muqallids of this Din, and on the practising scholars, and on the jurists and the Muhaddiths, and on the readers and the expositors of the Qur'an, and on the true Sufi masters, and on those who follow all of them in good until the last day.

al-Da'if wa-l-Haqir,

Muhammad Afifi al-Akiti ©
Oxford
12 Jumada II 1424
11 August 2003

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al-Tarshidi, Maysur Sindi. 'Umdat al-Fudala' Sharh 'ala Tadrib al-Nujaba' fi ba'd Istilahat al-Fuqaha'. Reneng Agung: al-Ma'had al-Islami al-Salafi Mahir al-Riyad, 1420 H.


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