Waqar Akbar Cheema
That Ibn ‘Âbidīn attributed the Later Hanafi Position that repentance of a person who blasphemes the Messenger of Allah (ﷺ) shall not be accepted in any case to a misreading by al-Bazzāzī has been picked up by modernists/liberals calling for the repeal of Pakistan’s contested Blasphemy Laws. This paper seeks to raise questions on Ibn ‘Âbidīn’s claim and suggest that the Later Classical Hanafi opinion was actually an ijtihād based opinion albeit not a preferred one according to conservative approach of taking and leaving legal opinions within the Hanafi school. In doing so the intent is to highlight the inconsistent and ‘utilitarian’ approach of the modernists towards the rich and pluralistic Islamic tradition which they only seek to ‘use’ in forwarding various ideals borne out of Western liberal ideas.
The issue of blasphemy has been on high note in Pakistan over the last three decades. Lately, the Hanafi fiqh position on the issue has also come to be debated. Most people think there is no difference of opinion regarding capital punishment for blasphemers. We shall call this the Layman Position. Whereas, the other schools of Islamic fiqh might have generally held the same there is some important discussion within the Hanafi school. The classical Hanafi position has been that blasphemy is like apostasy for someone originally a Muslim and, therefore, he might be pardoned if he repents and returns to Islam. For a ready reference we shall call this the Classical Position. Some later classical traditionalists among the Hanafis have, however, held that an originally Muslim blasphemer’s repentance cannot save him from capital punishment and he must be executed by the way of ḥadd (prescribed punishment). This we shall call the Later Traditionalist Position.
Ibn ‘Âbidīn (d. 1252/1836) has claimed that the Later Traditionalist Position originated with a misreading by al-Bazzāzī. In this write-up we seek to question this claim and argue that whatever its true merits and standing among the opinions within the Hanafi school this position is not just a misreading. Some of the scholars have opined likewise and it actually has pre-Bazzāzī precedents within the Hanafi scholarship. In doing so the aim is to set the contours of discussion between the traditionalists and the modernists of our day right.
2. Ibn ‘Âbidīn on the alleged origins of the Later Traditionalist Position
Ibn ‘Âbidīn in his dedicated treatise on the subject so-to-say resuscitated the Classical Position and argued that the Later Traditional Position originated with al-Bazzāzī’s (d. 827/1424) misreading of al-Shifā of Qāḍī ‘Iyād (d. 544/1149) and Al-Ṣārim al-Maslūl of Ibn Taymiyya (d. 728/1328). He establishes this point not only by referring to early Hanafi authorities but also by giving us the comparison between al-Bazzāzī’s words and those of his purported sources. Whereas his observation about al-Bazzāzī appears quite reasonable it is hard to agree with him on identifying this as the source of the Later Traditionalist Position.
2.1 Ibn ‘Âbidīn’s reasoning
In order to assert that al-Bazzāzī’s misreading is the source of the Later Traditionalist Position Ibn ‘Âbidīn claims on the authority of Amin al-Din bin ‘Abd al-‘Âl – the Mufti of the Ottoman Egyptian territories in the tenth/sixteenth century – that al-Kamāl ibn al-Humām (d. 861/1457) simply followed al-Bazzāzī suggesting that he did not apply much of his mind to it. Ibn ‘Âbidīn quotes from Minḥ al-Ghaffār of al-Tumurtāshī (1004/1596);
سمعت من مولانا شيخ الاسلام امين الدين بن عبد العال مفتى الحنفية بالديار المصرية أن صاحب الفتح تبع البزازي في ذلك وأن البزازي تبع صاحب الصارم المسلول
I heard Sheikh al-Islam Amīn Uddīn bin ‘Abd al-‘Âl – the Hanafi Mufti of Egypt – that the author of al-Fatḥ [al-Qāḍīr] followed al-Bazzāzī on this issue and al-Bazzāzī himself went after the author of Al-Ṣārim al-Maslūl. 
With such an assertion made it was rather easy for Ibn ‘Âbidīn not to attach much weight to the opinions of those who came after Ibn al-Humām given his reputation as muḥaqqiq followed by the laity.
In his critique of the Later Traditional Position Ibn ‘Âbidīn mentions of al-Bazzāzī and those allegedly followed him as scholars not capable of legal reasoning;
وانت تعلم أنه ومن تبعه ليسوا من اهل الترجيح فضلاً أن يكونوا من اهل الاجتهاد الصحيح
You are aware that al-Bazzāzī and those who followed him were not from ahl al-tarjīḥ let alone those capable of valid ijtihād.
2.2 Critique of Ibn ‘Âbidīn’s arguments
This is, however, questionable because elsewhere Ibn ‘Âbidīn himself recognized Ibn al-Humām as capable of ijtihād. In his most well-known work Radd al-Muḥtār Ibn ‘Âbidīn makes a separate section;
مطلب على أن الكمال بن الهمام بلغ رتبة الاجتهاد
Topic: al-Kamāl bin al-Humām had attained the degree of ijtihād.
Therefore, Ibn ‘Âbidīn’s reduction of Ibn al-Humām to the degree of an imitator of al-Bazzāzī and someone unable to practice valid ijtihād is against his own assertions elsewhere. Others have also recognized Ibn al-Humām as a mujtahid. 
Moreover, Mufti Muhammad bin ‘Abd al-‘Âl on whose authority Ibn ‘Âbidīn suggested that Ibn al-Humām simply followed al-Bazzāzī was neither a student of Ibn al-Humām nor even his contemporary. He passed away in 971/1462 i.e. some 110 years after the demise of Ibn al-Humām (d. 861/1457). Had Ibn al-Humām did that he would have suggested so by quoting from al-Bazzāzī as he did at other instances in his same work – Fatḥ al-Qāḍīr.
In short, while the observation regarding al-Bazzāzī’s misreading seems to be true, the claim that Ibn al-Humām and others after him who expressed the same opinion only followed al-Bazzāzī is unwarranted. Ibn al-Humām was a seasoned jurist known for his ability to research and exercise juristic reasoning. It is, therefore, more reasonable to see Ibn al-Humām’s ijtihād instead of al-Bazzāzī’s misreading as the source of the Later Traditionalist Position.
3. Pre-Bazzāzī Statements for the Later Traditionalist Position
What supports the above assertion is the fact that certain scholars before al-Bazzāzī also espoused the same position and it came to be transmitted, intermittently at least, among certain Hanafi circles.
3.1 Statement of Al-Nāṭifī
Muhammad Hāshim al-Sindī quotes from Abū al-‘Abbās Aḥmad bin Muhammad al-Nāṭifī (d. 440/1048), the author of al-Ajnās fī al-Furū‘;
أما إذا سب الرسول الله صلى الله عليه وسلم أو واحداً من الأنبياء فيقتل حداًو ولا توبة له أصلاً سواء بعد القدرة, والشهادة, أو جاء تائباً من قبل نفسه كالزنديق, لأنه حدً وجب فلا يسقط بالتوبة كسائر حقوق الآدميين
When a person blasphemes the Messenger of Allah – on him be peace – or any other prophet he shall be killed by the way of had, whether he repents that after being apprehended and after admission of witnesses or when he does that voluntarily it shall not be accepted like a zindīq. This is because the punishment for this crime is mandatory and is not waived off for repentance claim just like other rights of humans.
3.2 Statement from Baḥr al-Muḥīṭ of Raḍī al-Sarakhsī
Raḍī Uddīn al-Sarakhsī (d. before 616/1219) is reported to have said;
من شتم النبى صلى الله عليه وسلم وأهانه أو عابه فى أمور دينه أو شخصه أو فى وصف من أوصاف ذاته سواء كان الشاتم من أمته أو غيره, و سواء كان من أهل الكتاب أو غيره, ذمياً كان أو حربياً, سواء كان الشتم أو الأهانة والعيب صادرا عنه عمداً أو قصداً أو سهواً أو غفلة أو هزلاً فقد كفر خلوداً بحيث إن تاب لم يقبل توبته ابداً لا عند الله ولا عندالناس, وحكمه فى الشريعة المطهرة عند متأخرين المجتهدين اجماعاً وعند أكثر المتقدمين القتل قطعاً
The one who cursed the Prophet (Peace and blessings of Allah be upon him) or insulted him or slandered his personality, or criticised any of his attributes and whether this act is deliberate or otherwise and even if done jokingly the blasphemer, whether he is Muslim or non-Muslim, whether he is from the People of the Book or not, whether he is from the people of covenant (dhimmī) or a belligerent (ḥarbī), he has committed disbelief for good in a way that his repentance shall not be accepted either by Allah or by the people. In Shari’ah the punishment for such a person, according to majority of the early and consensus of the later scholars is clearly death.
Hāshim al-Sindī (d. 1174/1761) quotes it from the author of Ḥasab al-Muftiyīn, Ibn Khwāja al-Bukhārī (d. 910/1504)  and Qāḍī Thanā Ullah Pānīpattī (d. 1225/1810) quotes it from Fatāwá al-Burhānī. Moreover, it has been found in the (only?) Subcontinent edition of Khulāṣa al-Fatāwá of Iftikhār al-Dīn Tahir Ibn Aḥmad Al- Bukhārī (d. 542/1147), and quite a few recent scholars have quoted or referenced it as such.
3.3 Statement of Ahmad bin Muhammad al-Ghaznawī
Aḥmad bin Muhammad al-Ghaznawī (d. 593/1197), the author of Al-Rawḍa fī Ikhtilāf al-‘Ulama’, is also reported to have said;
والفرق بين السب النبي صلعم و بين سب الله تعالى انه يقبل توبة من سب الله تعالى ولا يقبل من سب رسول الله صلى الله علىه وسلم
The difference between the one who speaks blasphemously about the Prophet – on him be peace – and the one who does that about Allah is that latter’s repentance is accepted whereas the repentance of the former is not.
The above statements from scholars who came before al-Bazzāzī when considered against observations on Ibn ‘Âbidīn’s claim that all the beholders of the Later Traditionalist Position merely imitated al-Bazzāzī who actually misread the statements of Qāḍī ‘Iyāḍ and Ibn Taymiyya make it quite clear that these later scholars actually made ijtihād and differed with the erstwhile popular position of the madhhab. Whereas for a conservative follower of the Hanafi school it is the Classical Position that takes precedence over the Later Traditionalist Position the true significance of the above discourse, however, lies in bringing out the irony of modernist revisionist circles denouncing ijtihād of the later traditionalists among the Hanafis and calling for recourse to the early master scholars.
The irony of modernists/revisionists calling the traditionalist Hanafis to simply follow their early predecessors is evident. And that they find anchor in the secular-liberals ideals to pick and choose from the vast Islamic scholarly tradition only lays bare the fact that they approach the tradition not from within but from without and seek only to ‘use’ it rather than consistently follow it.
References & Notes:
Al-Shami, Ibn ‘Âbidīn, Radd al-Muḥtār Hashia ‘ala Durr al-Mukhtār, (Beirut: Dar al-Fekr, 1992) Vol.4, 234
 Al-Shami, Ibn ‘Âbidīn, “Tanbīh al Wulāt wal Hukkām ‘ala Ahkām Shātim e Khair il Anām” included in Majmu’a Al-Rasa’il, (Istanbul: Dar S’adat, 1325 AH) Vol.1, 327-330
 ibid., 331;
 ibid., 348
 Al-Shami, Ibn ‘Âbidīn, Radd al-Muḥtār Hashia ‘ala Durr al-Mukhtār, Vol.3, 173
 Like Ibn ‘Âbidīn Mufti Taqi Usmani also counts him as a mujtahid fi al-madhhab, see his Usul al-Ifta wa Adabuhu, (Karachi: Quranic Studies Publisher, 2011 )100
 Al-Ghazzi, Najm al-Din, Al-Kawākib al-Saira bi-A‘yān al-Mi’a al-‘Ashira, (Beirut: Dar al-Kotob al-‘Ilmiya, 1997) Vol.3, 59
 Al-Suyuti, Jalal al-Din, Bughyat al-Wu’āt fī ṭabaqāt al-lughawiyīn wa al-nuḥāh, (Sidon: Maktaba al-‘Asriya, n.d.) Vol.1, 168
 Al-Sindī, Muhammad Hāshim, al-Saif al-Jali ‘ala al-Sābb al-Nabī, (Kuwait: Dar al-Diya, 2016) 133
 For a discussion on the identity of Raḍī al-Sarakhsī and his work see; Al-Bukhārī, Ibn Mazah, Al-Muḥīṭ al-Burhani, Edited by Na’im Ashraf (Karachi: Majlis al-‘Ilmi, 2004) Intro. 95-96, 98
 Anwar Shah Al-Kashmiri expresses his doubt about the phrase “and by the people” suggesting that is perhaps due to inadvertence by some scribe, See al-Kashmiri, Ikfār al-Mulḥidīn, (Karachi: Idara al-Qur’an wa ‘Ulum al-Islamiya, 2004) 54
 Al-Sindī, Muhammad Hāshim, al-Saif al-Jali ‘ala Sābb al-Nabī, (Kuwait: Dar al-Diya, 2016) 132
 Panipatti, Thana Ullah, Ma La Budda Minhu, (Kanpur: Matba’ Majidi, 1327AH) , the statement actually comes from Panipatti’s translation of chapter “Kalimāt Kufr” of an earlier work titled Fatāwá Burhani which he appended to his own brief on other general topics of fiqh.
Fatāwá al-Burhani belongs to Mahmud Ibn Maza al-Bukhārī (d. 616/1219). See, al-Babani, Isma’il bin Muhammad, Hadya al-‘Arifin, (Beirut: Dar Ihya al-Turath al-‘Arabi, n.d.) Vol.2, 404;
It is pertinent to note that Ibn Kamal Pasha counted Ibn Mazah among Mujtahidin fi al-Masa’il, See Al-Laknawi, ‘Abdul Hayy, Fawa’id al-Bahiyya fi Tarajim al-Hanafiyya, 206.
 Al-Bukhārī, Iftikhar al-Din, Khulāṣa al-Fatāwá, (Lahore/Quetta: Amjad Academy/Maktaba Rashiya, n.d) Vol.4, 386. While the quote is found in the Subcontinent editions of Khulāṣa al-Fatāwá it is neither found in some other available MSS of the work, nor has it been quoted by Ibn ‘Âbidīn who otherwise quotes from this work. Perhaps the statement related on the authority of Ḥasab al-Muftiyīn (quoted by al-Sindī) and Fatāwá al-Burhani (quoted by Panipatti) was scribbled on the margins of Khulāṣa al-Fatāwá and some later scribe inadvertently added it to the main text. For details see Saif, Hussain Ahmad et. al., Fatwa No. 1831/50 Dar al-Ifta Dar al-‘Ulum, Karachi, dated September 28, 2016 (The fatwa came in reply to a question put by author of this write-up)
 Al-Kashmiri, Anwar Shah, Ikfār al-Mulḥidīn, 54; Thanwi, Jamil Ahmad, Tauhin –i-Risalat ki Saza (Lahore: Idara Islamiat, n.d.) 47-48 (It was originally written in 1409 AH /July 1989 in a reply to a question); Nadvi, Muhsin Usmani, Islām mein Ihānat-i-Rasūl kī Sazā (Karachi: Majlis Nashriyat Islam, 2005) 45-46; Mufti Rafi Usmani, Islamic Ideology Council – Annual Report 2003-04, 144; Mufti Taqi Usmani et. al., Fatwa No. 859/2 Dar al-Ifta Dar al-‘Ulum Karachi, dated Safar 24, 1427 AH; Khan, Salimullah, Jurm-i-Tauhīn-i-Risālat: Chand Pehlū
 Al-Qurashi, ‘Abdul Qāḍīr, al-Jawāhir al-Muḍiyya fi Tabāqat al-Ḥanafiyya, (Karachi: Mir Muhammad Kutab Khana, n.d.) Vol.1, 120
 Al-Bukhārī, Iftikhar al-Din, Khulāṣa al-Fatāwá, Vol.4, 386; it is obvious that al-Bukhārī did not put this in his work as al-Ghaznawi came after him. It is, however, probable that it comes from al-Raḍī al-Sarakhsī whose quote it follows in the referenced edition of Khulāṣa al-Fatāwá. See note 14 above.
The author of Al Khulasah did not pass away in 542 AH, he passed away after 600 AH. See [Marjani, ‘Nazuratul Haq’,(Amman: Darul Fath, 2012), pg.345-346]