Translated by Zameelur Rahman
People would seek fatwa from ‘ulama’ since the earliest of times in matters which they were in need of, because the majority of people are not able to derive the rulings of the Shari‘ah from their original sources. Thus, it would be necessary for them to refer to those who have knowledge of these rulings. This is what Allah (Glorified and Exalted is He) ordered in His noble saying: “So ask the people of remembrance if you do not know.” (16:43) And as long as a mufti is trusted in his knowledge and his piety, they would not demand evidence for what he said – and this is the technical meaning of taqlid, since they defined it as: “Acting on the opinion of another without knowing his evidence or demanding proof.”
However, in the best of generations, they would not restrict themselves to taking fatwa from a single scholar, such that they would not permit seeking fatwa from another scholar, although when individuals had a particular affinity with a scholar of a certain land, their reliance on him would be greater than others, so by virtue of that affinity, they would refer to that scholar in all matters or most of them.
Of this is what al-Bukhari transmitted from ‘Ikrimah that the people of Madinah would ask Ibn ‘Abbas: “Is it permissible for a woman [that is a pilgrim], when she is menstruating, to set off for her hometown after the Tawaf al-Ziyarah and omit the Tawaf al-Wida‘?” Ibn ‘Abbas answered them by [saying] that it is permissible for her to set off and omit the Tawaf al-Wida‘. They said to him: “We will not adopt your opinion, and leave the opinion of Zayd.” In the transmission of al-Isma‘ili: “We do not care, whether you have issued us a fatwa or you have not issued us a fatwa. Zayd ibn Thabit says: ‘She does not set off.’” In the transmission of al-Tayalisi: “We will not follow you, Ibn ‘Abbas, when you oppose Zayd.” This is because they had greater confidence in Zayd ibn Thabit. Later, Zayd ibn Thabit retracted from his opinion when he came to know of the hadith of Safiyyah, as transmitted by Muslim from Tawus: “I was with Ibn ‘Abbas when Zayd ibn Thabit said to him: ‘You issue fatwa that a menstruating woman departs before having her final meeting with the House?’ Ibn ‘Abbas said: ‘At the least, ask so-and-so Ansari woman: Did the Prophet (Allah bless him and grant him peace) command her?’” He said: “Subsequently, Zayd ibn Thabit returned to Ibn ‘Abbas, laughing, and saying: ‘I do not believe but that you told the truth!’” When Zayd ibn Thabit (Allah be pleased with him) retracted, the people of Madinah were content that it is permissible for her to set off [before performing the Tawaf al-Wida‘].
And of this is what Imam Ahmad ibn Hanbal (Allah – Exalted is He – have mercy on him) transmitted from Abu Muslim al-Khawlani (Allah – Exalted is He – have mercy on him), he said: “I came to the mosque of the Damascenes, when there was a circle therein comprising of senior companions of the Prophet (Allah bless him and grant him peace), and there was a youth amongst them with kohl on his eyes and bright teeth. Whenever they differed in anything, they referred it to the young man, a youthful young man.” He said: “I asked a sitting-companion of mine: ‘Who is this?’ He said: ‘This is Mu‘adh ibn Jabal.’” And in another narration: “Whenever they differed over anything, they referred it to him and they departed on his opinion.”
Examples of this are many.
The upshot is that most people would refer to those they trusted, and they would prefer his fatwas over the fatwas of others. There were some who did not suffice with seeking fatwa from a single scholar, because the madhhabs were not codified in that time, so they did not believe it was forbidden to seek fatwa from anyone that was accessible to them, even if it was someone besides whom they normally referred to. There was no fear at that time that people would select from the different madhhabs that which accorded with their passions because it was difficult for the questioner to know the opinion of the one he is seeking fatwa from before he asked him, which was because the madhhabs were not yet codified.
But after the codification of the four madhhabs of jurisprudence with a specific structure, and books were compiled on them, and they condensed into schools which were dedicated to studying them, and the opinions of these madhhabs became well-known and familiar to the people, if it was permitted for everyone to select from these opinions whatever he wished whenever he wished, that would lead to following desires and not following the bright Shari‘ah. There is no doubt that each of these jurists only selected an opinion on the basis of the strength of its evidence according to him not on the basis of what his heart desired, so it would be possible for another mujtahid to select or reject what he said due to a stronger evidence that appeared to him from the sources of Islamic legislation. However, the layperson who is not able to compare between these opinions on the basis of the evidences of the Shari‘ah, if he was given the option to adopt what he wished and reject whatever he wished, it would be feared for him that he will adopt from these opinions that which accords with his desires, and not because of the proof of the Shari‘ah that was the basis of that opinion.
Furthermore, each one of these madhhabs has a specific structure under the remit of which it operates, whereby many of its rulings are linked to each other. Thus, if one ruling from it is adopted and another ruling that is linked to it is omitted, the structure would collapse, and a situation of talfiq (mixing opinions from different madhhabs on a single issue) – not taken as valid by anyone – may arise. It is difficult for a layperson to appreciate these subtleties, so if the door of selecting was to be opened for the layperson, that would lead to chaos in the laws of the bright Shari‘ah. It was for this [reason] that a need arose to adopt a specific madhhab, not because the follower of a particular madhhab believes his Imam is an intrinsic authority – protection is from Allah, the Glorious! – but, because he trusts his knowledge in the Shari‘ah and its proofs more than others, or because knowledge of his madhhab is easier for him with respect to the founders of the other madhhabs. By such adoption of madhhabs, the circumstances of the people – in terms of faithfulness to the Shari‘ah and not following haphazard whims therein – were regulated, because selecting from the opinions of the jurists based on whim and not on the basis of evidence is from that which the scholars, both ancient and recent, have condemned. Imam Ma‘mar ibn Rashid (Allah – Exalted is He – have mercy on him) said: “If a man was to adopt the opinion of the people of Madinah on listening to songs and approaching women from their behinds, and the opinion of the people of Makkah on temporary marriage and barter, and the opinion of the people of Kufah on intoxicating substances, he would be from the worst of the slaves of Allah.” (Talkhis al-Habir, 3:187)
Hafiz Ibn Taymiyyah (Allah – Exalted is He – have mercy on him) said: “An example of this is that a man believes in the validity of the pre-emption of a neighbour when he demands it, and its invalidity when he is the buyer, because this is not permissible by consensus; and likewise, one who assumes the validity of the guardianship of a sinner in the process of his marriage and assumes the invalidity of his guardianship in the process of his divorce – this is not permissible by consensus of the Muslims. If a particular questioner said: ‘I was not aware of that, and from today I am adhering to this,’ that would not be [accepted] from him because it would open the door to playing with the religion and open the means to legalisation and illegalisation being according to whims.” (Majmu‘ al-Fatawa li Bni Taymiyyah, 32:101)
Imam al-Nawawi (Allah – Exalted is He – have mercy on him) said: “Its reason is that if it were permissible to adhere to any madhhab one wished, it would lead to collecting the concessions of the madhhabs, in accordance with one’s desires, and opting between legalisation and illegalisation, obligation and permission, and this will lead to relinquishing the noose of moral responsibility (taklif); as distinguished from the early period, because [at that time] there were no refined madhhabs that encompassed the rulings of [all] outcomes. Based on this, it is necessary for him to make effort in opting for one madhhab he will adhere to specifically.” (al-Majmu‘ Sharh al-Muhadhdhab, 1:55)
Ibn Khaldun (Allah – Exalted is He – have mercy on him) said: “Taqlid in all towns came to rest on these four, and muqallids of other than them have disappeared. The people blocked the door of disagreement and its paths when the diversification of the technical terms of the sciences became extensive; and when it became difficult to reach the level of ijtihad; and when it was feared that [somebody] unqualified for it whose opinion and religion are not trusted would be ascribed to it; so they [i.e. scholars] made [their] incapacity and deficiency clear, and they directed people to taqlid of these [four], to all who are specialised therein from the muqallids, and they forbade modification of their taqlid because it would imply frivolity. All that remained after authentication of the basic texts and connecting their chains by narration is transmission of their madhhabs, and each muqallid acting on the madhhab of the one he does taqlid of from them. There is no meaning to jurisprudence today besides this. And the claim of ijtihad in this age is rejected and turned on its heel, and his taqlid is abandoned. The people of Islam have evolved into taqlid of these four Imams.” (Muqaddimah Ibn Khaldun, p. 430)
Shaykh Wali Allah al-Dihlawi (Allah – Exalted is He – have mercy on him) said: “Know that the people in the first and second centuries were not united on taqlid of one specified madhhab, and after the second century, there appeared amongst them adherence to the madhhabs of specific mujtahids, and those who did not rely on the madhhab of a specific mujtahid became few – and this was the obligation of that time. If you say: How is it that one thing is not obligatory at one time, but obligatory at another time, although the Shari‘ah is one? I say: The original obligation is that there are those in the ummah who are aware of the corollary rulings from their detailed evidences. The people of truth are united on this. And the prelude to an obligation is obligatory. When there are many avenues to that obligation, it is necessary to acquire any avenue from those avenues without particularisation, but when one avenue becomes specified, that one avenue itself becomes obligatory…Based on this, it should be that the result is the obligation of taqlid of a specific imam.” (al-Insaf fi Bayan Asbab al-Ikhtilaf, p. 68, 70)
He said at another place: “Indeed these four codified and refined madhhabs have united the ummah, or those who are noteworthy from them, on the permissibility of taqlid of them, to this day of ours. In this are interests that are not hidden, especially in these days in which aspirations are very shunted and souls are given to desire and every holder of an opinion is impressed by his own opinion.”
Although the mujtahid jurists were widespread in every region of the Muslim regions, it was the will of Allah (Exalted is He) that no madhhab would be codified with a total composition in the way the madhhabs of the four jurists were codified, and their affiliation to them was mass-transmitted, and their pupils who studied them and examined them and drew corollaries from them overflowed. Such a thing did not happen to the other madhhabs. Shaykh Wali Allah al-Dihlawi (Allah – Exalted is He – have mercy on him) said: “In sum, adopting the madhhab of the mujtahids is a secret that Allah (Exalted is He) inspired to the ‘ulama’, and He united them upon it, whether consciously [on their part] or unconsciously.” (al-Insaf, p. 73)
This is why the ‘ulama’ said that it is obligatory for the non-mujtahid to do taqlid of one of these four madhhabs, and not do taqlid of a madhhab besides them.
Imam al-Nawawi (Allah – Exalted is He – have mercy on him) said: “He does not have the option of adopting the madhhab of any of the imams of the Sahabah (Allah be pleased with them) and other than them from the early ones, although they were more learned and of a higher rank than those after them, because they did not devote themselves to codifying knowledge, and delineating its principles and its branches, as none of them have a refined, codified and approved madhhab. Only those who came after them took up this [task] from the Imams affiliated with the madhhabs of the Sahabah and the Tabi‘in, who began to lay out the laws of outcomes before their occurrence, and who set out to elucidate their principles and their branches, like Malik, Abu Hanifah, and others.” (al-Majmu‘ Sharh al-Muhadhdhab, 1:55)
Al-Munawi transmitted from Hafiz al-Dhahabi (Allah – Exalted is He – have mercy on them) that he said: “It is necessary for us to believe that the four Imams, the two Sufyans, al-Awza‘i, Dawud al-Zahiri, Ishaq ibn Rahwayh, and all the Imams, were upon guidance, and no attention is paid to those who speak against them with what they are free from. The truth in accordance with the majority is that the one who is right in the corollaries is one, and Allah (Exalted is He) has a sign in what He has decreed, and that the mujtahid is given the responsibility of finding it, and that the one who misses it is not sinful, but is rewarded. Thus, the one who is right has two rewards, and the one who errs has one reward. Yes, if the mujtahid is deficient [in his knowledge], he is sinful, by agreement, and [it is necessary] for the non-mujtahid to do taqlid of a specific madhhab…but it is not permissible to do taqlid of the Sahabah and likewise the Tabi‘in, as stated by Imam al-Haramayn, of all whose madhhab has not been codified, so taqlid of other than the four [Imams] in judicial decree and fatwa is prohibited, because the four madhhabs have spread and have been codified, such that the conditions of their absolutes and the specifications of their generalities are clear; as distinguished from [madhhabs] besides them due to the extinction of their followers. Imam al-Razi (Allah – Exalted is He – have mercy on him) transmitted consensus of the verifiers on the prohibition of laypeople doing taqlid of individuals from the Sahabah and their elders.” (Fayd al-Qadir by al-Munawi, 1:210)
Shaykh Wali Allah al-Dihlawi (Allah – Exalted is He – have mercy on him) said in another place: “Know that there is great welfare in adopting these four madhhabs, and in turning away from all of them is great corruption, and we will explain that with reasons…” (‘Iqd al-Jid, p. 53)
He said in another place: “So when an ignorant person is in the lands of India or the lands of Transoxiana, and there is no Shafi‘i, Maliki or Hanbali scholar there, and no book from the books of those madhhabs, it is necessary for him to do taqlid of the madhhab of Abu Hanifah, and it is forbidden for him to leave his madhhab, because by doing so he will release [himself from] the noose of the Shari‘ah and will remain aimless and without purpose; as distinguished from the situation where one is in the two Harams, because there it is easy for him to know all the madhhabs. It is not sufficient for him to adopt [the opinions of the madhhab] by speculation and without assurance, nor to take from the tongues of the commoners, nor to take from an unknown book, all of which are mentioned in al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq.” (al-Insaf fi Bayan Asbab al-Ikhtilaf, pp. 77-8)
It is apparent from all of this that the objective is adherence to what has come of the laws of the Shari‘ah in the Qur’an and Sunnah, and that it is not usually easy for a non-mujtahid to derive these laws by himself, either because he is unable to understand them, or because the texts hold more than one meaning, or due to the apparent contradiction of evidences, so he relies on the opinion of a mujtahid whose opinion he has trust in over other than him, or the opinion of a mujtahid whose madhhab is well-known in his land. This is adoption of a madhhab (tamadhhub) or individual taqlid (al-taqlid al-shakhsi).
However, adopting a specific madhhab is not negated by a learned scholar – who has insight into the evidences of the laws in an issue from the issues – adopting the opinion of another madhhab, not on the basis of whim, but on the basis of a stronger evidence that appears to him. Based on this, many of the jurists of the Hanafis issue fatwa in many issues according to an opinion that opposes the opinion of Imam Abu Hanifah (Allah – Exalted is He – have mercy on him), as they did in the issue of cropsharing (muzara‘ah), and taking payment for teaching the Noble Qur’an, and in the issue of a person duped [in a monetary transaction] having the option [to cancel the deal] and other well-known issues.
This is due to what our ‘ulama’ have stated explicitly that taqlid of a specific Imam is not a ruling of the Shari‘ah per se, but it is only a fatwa that was issued in order to regulate the affairs of religion, and to avoid what was feared in not doing so, of the corruptions of playing [with the religion] and following desires.
I heard my father ‘Allamah Mufti Muhammad Shafi‘ (Allah – Exalted is He – have mercy on him) relate numerous times the statement of Shaykh al-Hind Imam Shaykh Mahmud al-Hasan (Allah – Exalted is He – have mercy on him): “Indeed taqlid of a specific madhhab is not a ruling of the Shari‘ah per se, but it is a fatwa that was issued in order the regulate the religion by means of it.”
Imam Shaykh Ashraf ‘Ali al-Thanawi (Allah – Exalted is He – have mercy on him) said in one of his sermons: “Thus, we do not believe that individual taqlid is mandatory or obligatory in itself, but we say that the affairs of religion are regulated by individual taqlid, and there is chaos in abandoning taqlid.” (Khutbat Hakim al-Ummat, 6:172)
From the corollaries of this viewpoint is that whenever there is safety from following desires, there is no harm in adopting that which is stronger in evidence for a scholar that is qualified to examine the evidences. Imam Faqih Shaykh Rashid Ahmad al-Gongohi (Allah – Exalted is He – have mercy on him) said: “Indeed the jurists banned the laypeople from non-individual taqlid (which is taqlid of a madhhab in one issue and another in another issue) for the reason of these [corrupt consequences]. However a scholar who is safe from these corrupt consequences, it is permissible for him to exercise non-individual taqlid even today, with the condition that he does not cause confusion and chaos thereby amongst the commoners.” (Tadhkirat al-Rashid, 1:132)
He said in another place: “The upshot is that when it is established that this ruling from our Imam goes against the Book and Sunnah, it is necessary for every believer to leave it, and no one will deny this after it becomes clear, but how is it possible for laypeople to verify this matter?”
The teacher of our teachers, Imam Ashraf ‘Ali al-Thanawi (Allah – Exalted is He – have mercy on him), explained this matter with extreme moderation and balance, so there is no harm in citing his statement with his wording followed by its Arabic translation:
Just as rejecting taqlid is deserving of censure, extremism and rigidity therein is also deserving of condemnation. It has preceded that a mujtahid is not imitated with the belief that he is the lawgiver and bringer of laws, but he is only imitated with the belief that he is a clarifier of the laws and an elucidator of the legislations and one who reveals the intent of Allah (Exalted is He) and the Messenger (Allah bless him and grant him peace). This is why taqlid is only acted upon when a matter negating that belief or eliminating it does not arise.
Thus, if it is clear to a scholar with depth of insight, perception of mind, fairness of temperament, by his investigation, or to a layperson through the medium of that scholar by the testimony of his heart – with the condition that he is fearful [of Allah] (muttaqi) – that the stronger [position] in this issue is another opinion, it will be examined if there is any possibility for the permissibility of acting on the weaker position based on the evidence of the Shari‘ah or not? If there is scope there, and it is feared that in publicising the disagreement there will be tribulation and confusion amongst the commoners, it is better in such a situation to act on the weaker position, to save the common Muslims from division. This is proven by what ‘A’ishah (Allah – Exalted is He – be pleased with her) narrated, she said: “The Messenger of Allah (Allah bless him and grant him peace) said: ‘Do you not see that your people, when they [re-]built the Ka‘bah, they were deficient in [building it on] the foundations of Ibrahim?’ So I said: ‘O Messenger of Allah! Will you not return it to the foundations of Ibrahim?’ So he said: ‘If it were not for the recentness of your people in disbelief, I would have done [so].’” The Six transmitted it besides Abu Dawud. So despite building the Ka‘bah on the foundations of Ibrahim (upon him peace) being superior, the Messenger of Allah (Allah bless him and grant him peace) opted for the weaker option, for fear of tribulation and confusion, because this weaker option was permissible in the Shari‘ah, even if weak…Likewise it is narrated from Ibn Mas‘ud (Allah – Exalted is He – be pleased with him) that he prayed four (meaning, in travel), so it was said to him: “You criticise ‘Uthman [for praying four in travel], and then you prayed four?!” He said: “Dissention is evil.” Abu Dawud transmitted it. So despite it being stronger according to Ibn Mas‘ud (Allah – Exalted is He – be pleased with him) to shorten [the prayer] in travel, he prayed it in full to avoid dissention and evil. Apparently, he believed in the validity of that also, so by this what we mentioned – that if the weaker option is permissible, opting for it is better to avoid tribulation and confusion – is strengthened.
However, if the weaker option does not allow for permissibility, rather it necessitates the omission of an obligation or the performance of a prohibition, and it has no evidence besides analogy, and there is an explicit authentic hadith for the stronger side, it is necessary to act on the hadith without hesitation, and taqlid is not permissible in this situation at all, because the foundation of religion is the Noble Qur’an and the Sunnah, and the objective of taqlid is nothing besides acting on them with ease and safety. So when the harmony between them [i.e. taqlid and acting on the Qur’an and Sunnah] is negated, it is necessary to act on the Qur’an and Sunnah, and rigidity on taqlid in such a situation is the taqlid on which censure has occurred in the Qur’an and Sunnah and the statement of the ‘ulama’. Thus it is narrated from ‘Adiyy ibn Hatim (Allah – Exalted is He – be pleased with him), he said: “I came to the Prophet (Allah bless him and grant him peace), and I heard him recite: ‘They have taken their rabbis and their monks as gods beside Allah’ (9:31) He said: ‘They would not worship them, but when they made anything halal, they considered it halal, and when they made anything haram, they made it haram.’” Al-Tirmidhi transmitted it.
And the practice of the Salaf and the verifiers has always been that whenever it appears to them that their opinion or the opinion of another goes against the command of Allah (Exalted is He) or His Messenger (Allah bless him and grant him peace) they renounce it immediately, as is narrated from Numaylah al-Ansari (Allah be pleased with him), he said: Ibn ‘Umar (Allah – Exalted is He – be pleased with them) was asked about eating hedgehog, so he recited: “Say: I do not find, in what has been revealed to me, anything prohibited for anyone who eats” [to the end of] the verse (6:145). So a shaykh next to him said: I heard Abu Hurayrah say: Hedgehog was mentioned before the Messenger of Allah (Allah bless him and grant him peace), and he said: “An impurity from the impurities,” so Ibn ‘Umar said: “If the Messenger of Allah (Allah bless him and grant him peace) said this, it is as he said, as we did not know.” Abu Dawud transmitted it.
The ‘ulama’ of the Hanafis also remained on the practice of this principle, so they left the opinions of their Imam in a number of issues, and by this it becomes clear to every fair person that what some people accuse them of, of fanaticism and rigid taqlid, is a clear error which resulted from looking at the transmissions without understanding…However, it is not permissible, despite abandoning taqlid in this issue, to attack the honour of the mujtahid by lengthening the tongue against his respected self or holding a bad opinion in the heart that he abandoned an authentic hadith, because it is possible that that hadith did not reach him, or it reached him with a weak chain, or that hadith was interpreted by him with an indication of the Shari‘ah. So he is excused. And vilifying the perfection of their knowledge due to being unacquainted with that hadith falls under the totality of lengthening the tongue against them because it is established that some hadiths did not reach some of the senior Sahabah regarding whose perfect knowledge there is no doubt, and that was not considered a deficiency in their perfection. Thus it is narrated from ‘Ubayd ibn ‘Umayr (Allah – Exalted is He – have mercy on him) in the story of the seeking of permission by Abu Musa (Allah – Exalted is He – be pleased with him) the statement of ‘Umar (Allah – Exalted is He – be pleased with him): “This command of the Prophet (Allah bless him and grant him peace) was hidden to me. Trading and markets distracted me.” Al-Bukhari transmitted it.
Likewise when a muqallid of that mujtahid, his breast has not expanded in that issue, and he thinks – due to good opinion of the mujtahid – that his opinion does not go against the hadith, so he continues to do taqlid of him in that issue due to this opinion, and he does not reject the authentic hadith, but he does not understand the agreement of his Imam with that authentic hadith in detail, it is not permissible to blame that muqallid, because he is also adhering to evidence of the Shari‘ah, and he does not aim but adherence to the Shari‘ah; and likewise it is not permissible for that muqallid to condemn that scholar who left taqlid in that issue due to the aforementioned reason, because this variation of theirs is akin to the variation which occurred amongst the Salaf and on which the ‘ulama’ said: “Indeed our madhhab is correct – probabilistically – with the possibility of being incorrect, and the madhhab of others is incorrect – probabilistically – with the possibility of being correct.” So when the other side has the possibility of being correct also, how can it be permissible, because of that, to declare any [of them] misguided, or to declare him a sinner, or to accuse him of bid‘ah, or Wahhabiyyah, and cause envy, rancour, obstinacy, dissension, backbiting, insult, abuse, vilification and curse which are absolutely forbidden?!
Yes, the man who opposes the majority of the Muslims in their beliefs or in matters that are agreed-upon, or he extends his tongue with respect to the righteous Salaf, he is out of the Ahl al-Sunnah wa l-Jama‘ah, because the Ahl al-Sunnah wa l-Jama‘ah are those who tread the path of the Sahabah, and these matters go against their beliefs, so this man is outside of the Ahl al-Sunnah and included within the people of innovations and passions. And similar is the man who is extreme in his taqlid whereby he rejects the Qur’an and hadith because of it. So it is necessary to avoid and stay clear of these two men while shunning the well-known debates. This is the balanced truth. Anything besides it is error and excess. O Allah! Show us the truth as truth and grant us adherence to it, and show us falsehood as falsehood, and grant us avoidance of it. (al-Iqtisad fi l-Taqlid wa l-Ijtihad, pp. 84-9)
It is clear from this that adopting a specific madhhab and doing taqlid of a mujtahid is not [done] but to arrive at what is established from the rulings of the Shari‘ah from the Book and Sunnah for those who are not able to reconcile between contradictory evidences. This is why the ‘ulama’ have clearly stated that there is no need for taqlid in creed and rulings that are stated explicitly, like the obligation of Salah, fasting, Zakah and Hajj, and the prohibition of wine, swine, usury, lying, deception and treachery, from the rulings in which there is no room for ijtihad, and the texts on them do not hold more than one interpretation. (See al-Dhakhirah by al-Qarafi, 1:148)
Likewise, adopting a madhhab does not mean the ‘ulama’ of that madhhab do not go against the opinion of their Imam in any of the issues. From this is what is narrated from Imam al-Tahawi – and he was a Hanafi in madhhab – that he said: “Abu ‘Ubayd ibn Harbawayh would revise rulings with me. So I answered him one day regarding an issue, and he said to me: ‘This is not the opinion of Abu Hanifah.’ Thereupon, I said to him: ‘O Qadi! Do I take everything Abu Hanifah said?’ He said: ‘I did not think you but a muqallid.’ I said to him: ‘Does any do taqlid besides a fanatic?’ He said to me: ‘Or an idiot.’ Then this statement flew across Egypt until it became a proverb.”
That which al-Tahawi (Allah – Exalted is He – have mercy on him) intended was that adopting a specific madhhab does not negate that a scholar like al-Tahawi adopts an opinion besides the opinion of his Imam in an issue, otherwise he will be a fanatic.
From this, it becomes clear that taqlid has [four] levels:
1. The first level is the taqlid of the layperson who does not have knowledge of the Qur’an and Sunnah, nor mastery of the sciences derived from them. Those who graduate from the seminars (madaris) and religious universities and have not acquired an ability by which they are able to compare between juristic opinions in light of the Book and Sunnah are included amongst them. The ruling of these [people] is that they adhere to the madhhab of a specific Imam, and they do not adopt [anything] besides the opinions of their Imam, because the opinion of their Imam is a proof with respect to them, and they do not have the right to assess whether the opinions of their Imam are against the Book and Sunnah by their mere opinion, because that which is necessary for such an assessment is not available to them.
2. The second level is the taqlid of the learned scholar, who, although he has not reached the level of complete ijtihad, but because of the expanse of his knowledge of the sciences of the Qur’an and Sunnah, and his mastery in the madhhab of his Imam, and his extensive experience of jurisprudence and fatwa with skilled teachers, he acquired a strong ability to inspect the evidences of the jurisprudential rulings. Although such a scholar does taqlid of his Imam in most of the chapters of jurisprudence, nonetheless, when he finds an opinion of his Imam against a clear text and he does not find, despite his lengthy investigation, anything that contradicts that text, it is permissible for him to leave the opinion of his Imam because of that clear text, as we have mentioned previously from the statement of Imam Shaykh Ashraf ‘Ali al-Thanawi (Allah – Exalted is He – have mercy on him). Likewise, when such a scholar feels that in the madhhab of his Imam in an issue from the issues there is a severe crisis, and that there is a widespread need to avert this crisis by opting for another juristic madhhab from the four followed madhhabs, it is permissible for him to issue fatwa or act on the opinion of another mujtahid besides his Imam, just as the Hanafis did in the issue of the wife of a lost man and other [issues], as will come – if Allah (Exalted is He) wills – in its place. However, the most precautious [route] in this age in the issues in which there is a widespread affliction is that a man does not act independently in such issues with his individual opinion; rather, he consults other ‘ulama’, and he does not issue a general fatwa except after acquiring the agreement of a body of firmly-grounded scholars.
3. The third level is the taqlid of a mujtahid in the madhhab, and he is the one who, although he is a muqallid of his Imam in the principles, nonetheless, he has acquired a degree of ijtihad in the peripherals or in the jurisprudential cases (nawazil). The scholars of extraction (takhrij) and assessment (tarjih) and the mujtahids in jurisprudential issues (masa’il) are included in this as will come – if Allah (Exalted is He) wills.
4. The fourth level is the taqlid of an absolute mujtahid, because although he is independent in deriving the laws of the Shari‘ah from the Book and Sunnah, but he has no alternative but to [exercise] a degree of taqlid, which is tfhat he examines the statements of the Salaf from the Sahabah and Tabi‘in, and holds to them in the explanation of the rulings of the Qur’an and Sunnah. And at times there is no clear text from the Book and Sunnah, but there is a statement from one of the Sahabah or Tabi‘in, so he gives it preference over his personal opinion. This is just as Abu Hanifah (Allah be pleased with him) often adopted the opinion of Ibrahim al-Nakha‘i, and al-Shafi‘i the opinion of Ibn Jurayj, and Malik the opinion of one of the seven jurists of the Illuminated City. ‘Allamah Ibn al-Qayyim (Allah – Exalted is He – have mercy on him) said about the absolute mujtahid: “His ijtihad does not negate his taqlid of other than him at times, for you will not find any of the Imams, but he is a muqallid of one who is more learned that him in some rulings. And indeed al-Shafi‘i (Allah have mercy on him and be pleased with him) said in a place of Hajj: ‘I said this doing taqlid of ‘Ata’.’” (I‘lam al-Muwaqqi‘in 4:179)
Usul al-Ifta’ wa Adabuh, Mufti Muhammad Taqi Usmani, pp 61 – 84
- “Pre-emption” (shuf‘ah) refers to the right of a partner with a share in a property or a neighbour to cancel a purchase made on the property to a third party so he can have the first choice to buy it. There is disagreement whether a neighbour enjoys this right, although it is agreed that a partner with a share in the property does. [↩]