Translated by Zameelur Rahman
The default rule for a mufti who is a muqallid is that he does not issue fatwa but on the madhhab of his Imam, according to the principles we discussed from ‘Uqud Rasm al-Mufti. However, that which we outlined in the discussion on taqlid and adopting a madhhab – that [the obligation of] taqlid of a specific Imam is a fatwa based on blocking the means and the interests of the Shari‘ah, in order that people do not fall into following desires, since collecting the concessions [i.e. the easiest positions] of the madhhabs due to desire and whim is prohibited – should not be forgotten. Otherwise, the truth is that all the madhhabs of the mujtahids are interpretations of the Shari‘ah itself, and there is no room to vilify any one of them, because every mujtahid expended all that is in his capacity of effort in arriving at the intent of the texts, and deriving the rules from them.
Thus, the Shari‘ah is not restricted to the madhhab of one Imam. Rather, every madhhab is a component from the components of the Shari‘ah and a path from the paths to practice upon it. Indeed, the Shari‘ah that was sent down revolves around all the madhhabs. Whoever thinks that the Shari‘ah is restricted to a single madhhab from these madhhabs, he is certainly mistaken. From this vantage point, it may be permissible for a mufti of one madhhab to give preference to the opinion of another madhhab for practice or fatwa, with the condition that this does not proceed from whim or following desires.
This is only permissible in three situations, which we will discuss in some detail in the following. We ask Allah (Glorified is He) for accordance towards accuracy and precision.
Issuing Fatwa on Another Madhhab for a Widespread Need
The first situation is necessity or need, which is that in the madhhab [one follows] there is an extreme and unbearable difficulty in a particular ruling, or an actual need to which there is no alternative, so it is allowed to act on another madhhab in order to avert the difficulty and fulfil the need. This is just as the ‘ulama’ of the Hanafis have issued fatwa on the madhhab of the Shafi‘is on the permissibility of taking salary for teaching the Qur’an, and on the madhhab of the Malikis in the issue of the wife of a lost man, impotent man and violent man (Radd al-Muhtar, 13:246-7). Similarly, that in which there is widespread affliction is included in this category. An example of this is that the later ‘ulama’ from the Hanafis issued fatwa on the madhhab of al-Shafi‘i in the issue of acquisition1 in that it is permissible for the acquirer to take his right from any kind of wealth, whether it is from the kind of the obligation or from a different kind, and that was because of the change in people in terms of persisting on irresponsibility. Ibn ‘Abidin stated this explicitly in Kitab al-Hajr (Radd al-Muhtar, 6:151).
Similarly, the later Hanafis issued fatwa on the madhhab of Malik (Allah – Exalted is He – have mercy on him) in the issue of a person duped [in a monetary transaction] having the option [to revoke the sale] in that it is permissible for him to return the item due to being excessively duped when there is deception in it. Ibn ‘Abidin stated this explicitly in Radd al-Muhtar under Bab al-Murabahah wa l-Tawliyah (Radd al-Muhtar, 5:143) and Ibn Nujaym (Allah – Exalted is He – have mercy on him) in Sharh al-Ashbah wa l-Naza’ir under the rule, “Difficulty demands creating ease.” (al-Ashbah wa l-Naza’ir, 1:236)
Similarly, the Hanafi jurists issued fatwa on the madhhab of the Shafi‘is on [the obligation of] compensating for the immaterial benefits (manafi’) enjoyed on a usurped item, from the wealth of an orphan and endowed wealth and all [wealth] that is susceptible to exploitation. Rather, Ibn Amir al-Hajj (Allah – Exalted is He – have mercy on him) proposed that the fatwa [ought to] be issued on the [obligation of] compensating for the immaterial benefits enjoyed on all confiscated items (al-Taqrir wa al-Tahbir, 2:130).
In our age, monetary transactions have become complex, and the needs of people therein have multiplied, especially after the emergence of big industries, and the spread of trade between countries and continents, so it is necessary for the mufti to make it easy for the people in adopting that which is most lenient in those [matters] in which there is widespread affliction, even if it is from another madhhab from the four madhhabs. The teacher of our teachers, ‘Allamah Rashid Ahmad al-Gangohi (Allah – Exalted is He – have mercy on him), instructed this to his student, Shaykh ‘Allamah Ashraf ‘Ali al-Thanawi (Allah – Exalted is He – have mercy on him). And Shaykh al-Thanawi (Allah sanctify his secret) acted on this in many of the rulings found in Imdad al-Fatawa. Thus, he issued fatwa on the opinion of the Shafi‘is on it not being a condition for the product in a delayed transaction (al-muslam fih) to be present up until the appointed time arrives, and the permissibility of paying a down-payment on a delayed transaction, and on the madhhab of the Malikis on the permissibility of partnership in movable items, and on the madhhab of the Hanbalis on the permissibility of profit-sharing partnership (mudarabah) in the immaterial benefits of animals (see for these rulings: Imdad al-Fatawa, 3:106, 21, 495, 343).
However, for the permissibility of issuing fatwa on another madhhab due to need or widespread affliction, it is necessary for the following conditions to be met:
(1) The need is severe, and the affliction is widespread, in actual reality, not mere speculation of it.
(2) The mufti is sure of the severity of the need, and that is by consulting other scholars of fatwa and people with experience in that field. And it is best to not hasten in issuing fatwa in isolation from others. Rather, he should try as far as possible to add to it the fatwa of other ‘ulama’, especially if he wants the fatwa to spread over a wide area.
(3) He should gain surety and investigate in verifying the madhhab on which he wishes to pass fatwa with an extensive verification, and it is best for him to consult the ‘ulama’ of that madhhab on it, and it is not enough to find the ruling in one or two books, because every madhhab has technical terms that are particular to it, and styles which distinguish it, and often only those who are experienced in these technical terms and styles will reach its true intent.
(4) The opinion that is adopted is not from the anomalous (shadhdhah) opinions which opposes the vast majority of the jurists of the ummah and on which they issued condemnation. ‘Abd Allah ibn ‘Umar (Allah – Exalted is He – be pleased with him) narrated from the Messenger of Allah (Allah bless him and grant him peace): “Verily, Allah will not gather my ummah,” or he said: “the ummah of Muhammad (Allah bless him and grant him peace) on misguidance. The hand of Allah is over the group. And whoever is isolated, is isolated in the Fire.” (Jami‘ al-Tirmidhi, 2167) And it was narrated from Anas ibn Malik (Allah be pleased with him) from the Prophet (Allah bless him and grant him peace), he said: “Verily, my ummah will not unite on misguidance, so when you see dissention, you must [adhere] to the vast majority.” (Sunan Ibn Majah, 395) Isolated opinions have occurred from some jurists which the majority of the people of knowledge have not accepted, rather condemnation of them have occurred from them, and indeed recourse to those isolated opinions, in order to create ease and collect concessions, is from that which the predecessors, both ancient and recent, despised.
Imam al-Awza‘i (Allah – Exalted is He – have mercy on him) said: “Whoever adopts the rarities of the ‘ulama’ has left Islam.” (Tadhkirat al-Huffaz, 1:180) Hafiz al-Dhahabi (Allah – Exalted is He – have mercy on him) said: “Whoever chases the concessions [i.e. the easiest positions] of the madhhabs and the slips of the mujtahids, then indeed his religion has become brittle, as al-Awza‘i and others said: ‘Whoever adopts the opinions of the Meccans on temporary marriage, the Kufans on nabidh, the Medinans on singing, the Levantines on the infallibility of the caliphs, he has gathered all evil.’ And likewise, whoever adopts in usurious transactions [the position] of those who find loopholes in them, and in divorce and the marriage of tahlil2 [the position] of those who are lenient therein, and the like of that, he subjects himself to dissociation [from Islam].” (Siyar A‘lam al-Nubala’, 8:90)
Imam Ahmad ibn Hanbal (Allah – Exalted is He – have mercy on him) said: “If a man were to act on every concession, with the opinion of the people of Kufah in nabidh, the people of Madinah in audition, and the people of Makkah in temporary marriage, he will become a wicked person (fasiq).” Ma‘mar 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.” Sulayman al-Taymi said: “If you were to take the concession of every scholar,” or he said: “the slip of every scholar, all evil with gather in you.” (See for these all these quotes Lawami‘ al-Anwar al-Bahiyyah by al-Safarini, 2:466) ‘Abd al-Rahman ibn Mahdi (Allah – Exalted is He – have mercy on him) said: “The one who adopts the isolated opinion is not an imam in knowledge, nor is he an imam in knowledge who narrates from everyone, and nor is he an imam who relates all that he hears.” (Jami‘ Bayan al-‘Ilm wa Fadlih by Ibn ‘Abd al-Barr, 3:35)
This is what they believed regarding marginal opinions which were issued by eminent trustworthy jurists regarding whom the people of knowledge attested to their deep insight and scrupulousness, so what is your opinion of the marginal opinions that issue from some of those who have no connection to knowledge and jurisprudence, but he only said what he said based on his extreme views or his personal inclinations or on foreign cultures which have no relation at all to Islam?! Thus it is necessary to adopt that which is weightiest in terms of evidence and strongest in terms of proof by investigating the sources of the Islamic Shari‘ah and its noble goals and the opinions of the vast majority of the jurists.
(5) That madhhab is adopted with all of its conditions that are recognised therein, so that this does not lead to talfiq in a single matter. It will be apt that we discuss here with some detail the issue of talfiq, and Allah (Glorified is He) is the Guardian of Success.
The Ruling of Talfiq
That which was summed up by me on the topic of talfiq is that by this term is intended – in the general speech of the jurists – that two madhhabs are selected in a single issue whereby a compound situation is created that is not permitted in either of the two madhhabs. For example, a man adopts the opinion of the Hanafis on wudu’ not breaking upon touching a woman, and the madhhab of the Shafi‘is on it not [breaking] with flowing blood, so he prays after having touched a woman and blood having flowed from him, as this Salah is not valid according to either of the two madhhabs.
Al-Qarafi (Allah – Exalted is He – have mercy on him) (d. 684 H) said:
It is stipulated for the mufti – when he allows transfer between madhhabs in individual issues – to ponder carefully in what he issues fatwa on, whether there is something in the madhhab that is switched from that rejects it or not?
An example of this is when a Shafi‘i mufti allows transfer, for example, from the madhhab of Malik to the madhhab of al-Shafi‘i, and he is asked about omitting rubbing (tadlik) in the ritual bath (ghusl) for a Maliki. It is stipulated for him to not allow it as the prayer from the Maliki will become invalid by consensus of the two Imams, because the Maliki does not say basmalah. Therefore, Malik believes it invalid due to the absence of rubbing [in ghusl] and al-Shafi‘i believes it invalid due to the absence of saying the basmalah [in the prayer].
I was once asked about wudu’ [with water] in socks sewn with the hair of swine, whether it is permissible to pray with the traces of such water that touched areas of the thread? The questioner was a Shafi‘i, so I said to him: “In the madhhab of Malik, the hair of swine is pure, but you are Shafi‘i, you wipe [only] a part of your head [for wudu’]. Therefore, the two Imams will agree on the invalidity of your prayer: Malik because of not wiping the entire head, and al-Shafi‘i because of the hair of swine being impure according to him.”
Examples of these matters must be understood, because they occur frequently. (al-Ihkam, 233-5)
Our teacher, the learned scholar, the hadith-master, the great imam, Shaykh ‘Abd al-Fattah Abu Ghuddah (Allah – Exalted is He – have mercy on him), commented on this with his statement:
This, from the author, is based on the widespread, famous [opinion] that talfiq is invalid, while Imam Ibn al-Humam in al-Tahrir and his student Ibn Amir al-Hajj in his commentary (3:350-3) concluded that talfiq is permissible, and he offered for it evident proofs, and he quoted this statement of al-Qarafi, and he followed it up with his statement: “A later scholar qualified it [i.e. following two madhhabs in one issue] with [the condition] that that which is rejected by both of them is not consequential on it,”…He indicated by his statement, “later scholar” that the prohibition of it is not established from any of the early scholars.
The attribution of the permissibility of talfiq to Ibn al-Humam and Ibn Amir al-Hajj also occurs in a number of books from the people of knowledge, but it becomes clear in checking their texts in al-Tahrir and its commentary that they do not support its permissibility, and they only deemed taqlid of another madhhab permissible with the condition of no talfiq, and indeed Ibn Amir al-Hajj understood the declaration of open iniquity (fisq) for the one who chases the concessions of the madhhabs as applying to the one who perpetrates talfiq, and he supported the prohibition of talfiq using the statement of al-Ruyani (Allah have mercy on them all) and did not follow it up with anything, which proves that he agrees with him. Thus, it is apparent that the attribution of the permissibility of talfiq to them is not clear.
As for adducing proof from his statement “later scholar” that the prohibition of it is not established from any of the early scholars, the most that can be proved from this is that its prohibition is not found clearly before the seventh century, and this does not prove the early scholars did not prohibit talfiq, for it is possible that it was narrated from some of them and we did not see it, or they did not prohibit it explicitly due to there being no need. Furthermore, just as its prohibition is not transmitted from them, its permissibility is also not established from them.
Then, our teacher (Allah – Exalted is He – have mercy on him) mentioned that “there were books authored on the permissibility of talfiq, and from the best of them is al-Qawl al-Sadid fi Ba‘d Masa’il al-Ijtihad wa l-Taqlid by Muhammad ‘Abd al-‘Azim ibn Munla Farrukh al-Makki, one of the scholars of the eleventh century.”
This treatise was compiled by Shaykh Muhammad ibn ‘Abd al-‘Azim al-Makki al-Rumi al-Muri al-Hanafi (Allah – Exalted is He – have mercy on him), nicknamed Ibn Mulla Farrukh, and in it he transmitted the permissibility of talfiq from a number of Hanafi and other ‘ulama’. From them is ‘Allamah Ibn Nujaym (Allah – Exalted is He – have mercy on him) where he said in his thirty second treatise from al-Rasa’il al-Zayniyyah in the situation of selling an endowment (waqf) not in the form of substitution (istibdal)3: “It is possible to take the validity of substitution from the opinion of Abu Yusuf, and the validity of a sale with excessive duping from the opinion of Abu Hanifah, based on the validity of mixing (talfiq) two opinions in a ruling.” Then Ibn Nujaym (Allah – Exalted is He – have mercy on him) quoted from al-Fatawa al-Bazzaziyyah that which indicates the permissibility of talfiq and he said: “That which occurred towards the end of Tahrir by Ibn al-Humam of prohibiting talfiq, he only ascribed it to one of the later scholars, and that is not the madhhab.” (al-Rasa’il al-Zayniyyah, pp. 246-7)
From the greatest of what Ibn al-Mulla Farrukh drew evidence from is what was narrated from Abu Yusuf (Allah – Exalted is He – have mercy on him) that he prayed Jumu‘ah with the people, and then he was informed of the presence of a rat in the well of the public bath in which he had taken a bath, and that was after the people had dispersed, so he said: “We adopt the opinion of our brothers, the people of Madinah, that water does not hold impurity when it reaches two qullahs.” This story became famous from Imam Abu Yusuf (Allah – Exalted is He – have mercy on him) and a number of the Hanafi jurists related it. It was related in al-Muhit al-Burhani transmitting from Majmu‘ al-Nawazil of Ahmad al-Kashshi (d. 550 H), as mentioned in Kashf al-Zunun. Its chain of transmission is unknown, while also the people of Madinah do not limit purity to two qullahs; rather, that is the madhhab of al-Shafi‘i (Allah – Exalted is He – have mercy on him). Even if it is established, the most that can be established from it is the permissibility of acting on the opinion of another mujtahid, and it is not necessary from it that Imam Abu Yusuf (Allah – Exalted is He – have mercy on him) mixed between two opinions, because in this story there is no mention of him opposing the madhhab of the Malikis or Shafi‘is in the ritual bath, and apparently he had observed the disagreement due to leading the Jumu‘ah. Thus, the permissibility of talfiq according to him is not established by it.
Then our teacher (Allah – Exalted is He – have mercy on him) related from ‘Allamah Ahmad al-Tahtawi (Allah – Exalted is He – have mercy on him) that “he approved of the statement of ‘Allamah Ibn Farrukh in the matter of talfiq and deemed it good, in imitation of Mufti Abu al-Su‘ud’s (d. 982 H) preference of it also.” However, the statement of al-Tahtawi (Allah – Exalted is He – have mercy on him) in [the commentary] on al-Durr al-Mukhtar is as follows:
Know that issuing fatwa on the opinion of Malik is the essence of taqlid, and there is no disagreement on its permissibility with the condition of no talfiq, according to what Shaykh Hasan mentioned, and he devoted a treatise to it, and that which ‘Allamah Ibn al-Munla Farrukh mentioned opposes it, since he stated explicitly the permissibility of an action with talfiq, and he expanded on that in the manner of verification, and he devoted a treatise to it also, and he attributed the opinion of the permissibility of talfiq to Ibn al-Humam in al-Tahrir, and the author of al-Bahr in one of his treatises, and that he, i.e. the author of al-Bahr, said: “Prohibiting an action with talfiq is against the madhhab,” and [he attributed this opinion ] to [authors] besides the author of al-Bahr from the scholars of Khawarizm, and he even attributed acting on talfiq to Abu Yusuf. However, the speech of ‘Allamah Nuh Afindi in his treatise related to the rulings of a latecomer [to prayer] supports what Shaykh Hasan mentioned. End [quote] from Abu al-Su‘ud. (Hashiyat al-Tahtawi ‘ala al-Durr al-Mukhtar, 2:217)
Thus it is clear from this that after transmitting the position of Ibn al-Munla Farrukh, he followed it up by quoting ‘Allamah Nuh Afindi in his opposition [to him] and support for the opinion of the prohibition of talfiq, and he transmitted this support from Abu al-Su‘ud. Thus, it is apparent that Abu al-Su‘ud (Allah – Exalted is He – have mercy on him) supported prohibition, not permission, and Allah (Glorified is He) knows best.
The outcome of these transmissions is that Ibn Nujaym and Ibn al-Munla Farrukh (Allah – Exalted is He – have mercy on them) permitted talfiq, and it is understood from the speech of Ibn al-Humam that the prohibition came from the later scholars, but the majority of the later scholars from the four madhhabs forbade it, since you are aware of what al-Qarafi al-Maliki said, and Ibn al-‘Attar from the Shafi‘is approved of it.
That which is apparent to me – and Allah (Glorified is He) knows best – is that the prohibition of talfiq is weightier, because that which everybody agrees on is that playing with the madhhabs on whim is [equivalent to] following desires and this is prohibited by the clear injunction of the Noble Qur’an. Allah (Glorified and Exalted is He) said: “So judge between people with truth, and do not follow desire, lest it should lead you astray from Allah’s path. Surely those who go astray from Allah’s path will have a severe punishment, because they had forgotten the Day of Reckoning.” (37:26). And if the door of talfiq was opened fully that would lead to following desires and releasing the noose of moral responsibility.
However, the talfiq that is prohibited is that a person chooses in a single issue two madhhabs in such a way that leads to a situation not allowed by either in that particular case. But if a man chooses in a matter an opinion opposing his madhhab, it is not necessary for him to make that madhhab duty-bound in other matters also. An example of this is what ‘Allamah Ibn Farrukh (Allah – Exalted is He – have mercy on him) produced as evidence, that many of the later Hanafis issued fatwa on the permissibility of passing a judicial decree on an absentee, adopting the opinion of the three Imams [Malik, al-Shafi‘i and Ahmad] due to an expediency that appears to the Qadi. Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) said, transmitting from Jami‘ al-Fusulayn:
“So in such [a case] as this (i.e. in cases of it being difficult to make the absent person attend), if one were to produce evidence against the absentee, and it dominates the mind of the Qadi that it is true and not forged, and there is no fraud in it, he should pass judgement against him [i.e. the absentee] and in favour of him [i.e. the one who brought the evidence]. Likewise it is permissible for the mufti to pass fatwa on its permissibility to avert the difficulty and needs, and to preserve the rights from being infringed, while also it is a place of ijtihad (mujtahid fih), which the three Imams adopted, and there are two narrations therein from our companions. There should be an advocate appointed for the absentee who is known will he observant of the side of the absentee and will not be negligent of his right.” End [quote from Jami‘ al-Fusulayn]. And it is endorsed in Nur al-‘Ayn.
I say: It is supported by that which will come shortly regarding the advocate, and likewise what is in al-Fath in Bab al-Mafqud: “A judicial decree over an absentee is not allowed unless the Qadi sees an expediency in ruling in favour of him and against him, so he passes a decree, as it will be enforced, because it is a place of ijtihad.” I say: The outward [purport] of it is even if the Qadi is Hanafi and even if in our time. And this does not negate what has preceded4 because its permission is for expediency and necessity. (Radd al-Muhtar, 5:414)
Based on this, if the Qadi selects the madhhab of the majority in decreeing over the absentee, it is not necessary for him to adhere to their madhhab in all decrees, so if he was to pass judgement on the right of pre-emption for a neighbour [which is only viable in the Hanafi school], for example, and the defendant was absent, that would not lead to the prohibited talfiq, because the issue of decreeing over an absentee and the issue of pre-emption of the neighbour are two separate issues from two chapters, and it is not necessary that if one adopts the opinion of al-Shafi‘i (Allah – Exalted is He – have mercy him) in one chapter he does not adopt the madhhab of the Hanafis in another chapter. This is supported by what appears in al-Hindiyyah from al-Dhakhirah:
An example of this is what we said about one who issues a decree based on the testimony of open sinners (fussaq) over an absentee, or with the testimony of a man and two women of marriage over an absentee, his decree will be enforced, even though those who allow judging over an absentee say women do not have the right of testimony in the chapter of marriage, and open sinners do not have the right of testimony at all, but it will be said, each one of the two issues are open to differences of ijtihad, so the decree from the Qadi will be enforced based on his ijtihad in both of them. (al-Fatawa al-Hindiyyah, 3:359)
This is different from one who adopts the madhhab of the Shafi‘is in wudu’ not breaking with flowing blood, and the madhhab of the Hanafis in it not [breaking] by touching a woman, since the two rulings are from one door, so he will not be deemed to be in the state of wudu’ according to either of the two madhhabs. This is what the teacher of our teachers, al-Thanawi, deemed the most balanced of opinions in the issue of talfiq where he said, the translation of which is:
The most balanced of opinions from amongst these opinions according to us is talfiq is not permissible in one action which violates consensus. But when they are two different actions, talfiq (mixing) is permissible, even if it necessitates violation of consensus outwardly, so whoever performs wudu’ non-sequentially, his wudu’ is not valid according the Shafi‘is, and if he wipes less than a quarter of the head in that wudu’, his wudu is not valid according to the Hanafis, so if he performs wudu’ non-sequentially and wipes less than a quarter of the head, his wudu’ is not valid according to anyone, and this talfiq violates consensus. And the one who wipes less than a quarter of the head in wudu’ and then prayed behind the imam and did not read Fatihah, then although this necessitates violating consensus outwardly since he performed wudu’ on the madhhab of the Shafi‘is and prayed on the madhhab of the Hanafis, but since wudu is one act and prayer another act, it is not from the prohibited talfiq. (al-Hilat al-Najizah li l-Halilat al-‘Ajizah, p. 15)
Similarly, Imam al-Thanawi (Allah – Exalted is He – have mercy on him) issued fatwa on the Hanafi madhhab on the status of in-laws being established [by unlawful sexual relations], and on the madhhab of the Malikis on the permissibility of annulling a marriage by a group of Muslims, because they are two separate issues (al-Hilat al-Najizah, p. 88). Thus, the prohibited talfiq will not be necessitated by it. And Allah (Glorified is He) knows best and His knowledge is most complete and firmest.
A resolution similar to this was issued by the International Islamic Fiqh Academy in its second session, the text of which is as follows:
The reality of talfiq in the taqlid of madhhabs is that a muqallid approaches one matter with two or more connected branches in a manner which was not sanctioned by any mujtahid from those he does taqlid of in that matter. Talfiq is prohibited in the following circumstances: when it leads to adopting concessions by mere desire, or coming short in one of the clear regulations in the matter of adopting concessions; when it leads to breaking the ruling of a judicial decree; when it leads to violating what is acted upon in taqlid [of a mujtahid] in one incident; when it leads to opposing consensus or what necessitates it; when it leads to a compound situation not agreed to by any of the mujtahids.
Issuing Fatwa on Another Madhhab due to the Strength of its Evidence
The second situation in which it is permissible to act and issue fatwa on another madhhab is that the mufti has mastered the madhhab and knows its evidences, who has deep insight into the Qur’an and Sunnah, even if he has not reached the level of ijtihad; however, he is aware of an authentic hadith with a clear indication, and he does not find anything that opposes it besides the opinion of his Imam; in that case it is permissible for him to adopt the opinion of a mujtahid who acted on that hadith, as we detailed in the discussion of taqlid and adopting a madhhab.
And this – what we mentioned – is in agreement with what ‘Allamah Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) transmitted in Sharh ‘Uqud Rasm al-Mufti from Sharh al-Ashbah by al-Biri from Sharh al-Hidayah by Ibn al-Shahnah al-Kabir:
When a hadith is authentic, and is against the madhhab, the hadith will be acted upon, and that will be his madhhab, and his muqallid will not be excluded from being a Hanafi by acting on it, for indeed it is authentic from Abu Hanifah that he said: “When a hadith is authentic, it is my madhhab.” ‘Allamah Ibn ‘Abd al-Barr related it from Abu Hanifah and other Imams, and Imam al-Sha‘rani also transmitted it from the four Imams.
I say: It is not hidden that this is for one who is qualified to examine the texts and has knowledge of the decisive from them and the abrogated, so when the people of insight examine the evidence and act on it, it is proper to attribute it to the madhhab, in that it was issued with permission from the founder of the madhhab, as there is no doubt that if he knew the weakness of his evidence, he would retract from it, and would follow the stronger evidence. (Sharh ‘Uqud Rasm al-Mufti, p. 44)
Strangely, ‘Allamah Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) followed this up with his statement:
I say: Furthermore, that should be limited to what agrees with an opinion of the madhhab, since they did not allow what is completely outside of the madhhab of that which our imams are agreed upon within [the remits of] ijtihad, because their ijtihad is stronger than his ijtihad, so apparently they saw an evidence stronger than what he saw, thus they did not act upon it. This is why ‘Allamah Qasim said with respect to his teacher, the seal of the verifying scholars, al-Kamal Ibn al-Humam: “The researches of our teacher that oppose the madhhab will not be acted upon.” And he said in his Tashih on al-Quduri: “Imam ‘Allamah al-Hasan ibn Mansur ibn Mahmud al-Awzjandi (Allah – Exalted is He – have mercy on him), better known as Qadi Khan, said in Kitab al-Fatawa: ‘The function of the mufti in our time, from our companions, is when he is asked about an issue, if it is narrated from our companions in the apparent transmissions without any disagreement between them, he will tend towards it, and he will issue fatwa on their opinion, and he will not oppose them with his opinion even if he is a skilled mujtahid, because it is apparent that the truth is with our companions and does not surpass them, and his ijtihad does not measure up to their ijtihad, and the opinion of those who go against them will not be given any attention, and his proof will not be accepted also, because they knew the evidences and distinguished between what is authentic and established and what is its opposite.’” (Sharh ‘Uqud Rasm al-Mufti, p. 48)
‘Allamah Ibn Qadi Samawah al-Hanafi (d. 818 H) (Allah – Exalted is He – have mercy on him) refuted him [i.e. Qadi Khan] in Jami‘ al-Fusulayn, and he said:
I say: This is from his good opinion, for otherwise, Malik (Allah have mercy on him) is earlier than them, and there is no evidence that they were more precise, more careful, and stronger in following reports and narrations than al-Shafi‘i and Malik, and hadith was not codified in the time of Abu Hanifah (Allah have mercy on him) and his two companions in the way it was codified after them, since the six books were composed after them. Furthermore, if the opinion of a mujtahid opposed their opinion, not the Book, nor the Sunnah, nor consensus, nor the Sahabah, nor a Tabi‘i, his fatwa would be accepted in the time of the Sahabah, like Shurayh, for example. Thus, it is necessary for him [i.e. the mujtahid] to act on his personal opinion, not on the opinion of another. If he believes that it is the truth weightier than [other opinions] besides it, how can it be permissible for him to act on another [opinion]? And it is mentioned in al-Muhit: “It is necessary for the mujtahid to act on his ijtihad and it is forbidden for him to do taqlid of another.” (Jami‘ al-Fusulayn, 1:15)
This is why Ibn ‘Abidin (Allah have mercy on him) himself said after quoting the statement of Qadi Khan that has passed on which Ibn Qadi Samawah issued a refutation: “However, often they would divert from what our Imams have agreed upon for necessity or its like, as has preceded in [the issue of] taking wages for teaching the Qur’an…and in that case, it is permissible to issue fatwa against their opinion, as we will mention soon from al-Hawi al-Qudsi.”
Then, in the matter of issuing fatwa on a weak opinion, Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) authenticated [the position] that it is permissible for a scholar who knows the meaning of the texts and the opinions [of different mujtahids], and he is from the people of understanding, to act for himself in such [a situation] as this, on the opinion of another Imam, but it is not permissible to issue fatwa on that in all of these situations, and that is because the questioner only came to him to ask him about what the Hanafi Imams adopted, not his personal opinion. And the consequence of this explanation is that if he was to clarify to the questioner that he is not issuing fatwa in this matter on the madhhab of Abu Hanifah (Allah – Exalted is He – have mercy on him), but he is issuing fatwa on the opinion of another, that should be permissible, because ‘Allamah Ibn ‘Abidin related from al-Qaffal (Allah – Exalted is He – have mercy on them) from the imams of the Shafi‘is that when someone would seek fatwa from him about selling an unmeasured heap [of food], he said to him: “Are you asking me about my opinion or about the madhhab of al-Shafi‘i (Allah – Exalted is He – have mercy on him)?” And at times he would say: “If I were to perform ijtihad, and my ijtihad led me to the madhhab of Abu Hanifah (Allah – Exalted is He – have mercy on him), I may say: ‘The madhhab of al-Shafi‘i (Allah – Exalted is He – have mercy on him) is such and such,’ even though I adopt the madhhab of Abu Hanifah (Allah – Exalted is He – have mercy on him).’” (Sharh ‘Uqud Rasm al-Mufti, p. 94)
When a Qadi Passes a Judicial Decree on another Madhhab
When the Imam [of an Islamic state] appoints a Qadi and does not tie him down to a particular madhhab, and the Qadi is a mujtahid, so he passes judgement on what is against the madhhab of another, his decree will be enforced as long as the matter is a place of ijtihad. Thus, if a mufti is asked, he answers that the decree is to be enforced even if the decree is against his madhhab. This third situation is from the situations in which the mufti issues fatwa on another madhhab, and that is due to what the jurists are agreed upon, that the decree of a ruler or the judgement of a Qadi eliminates disagreement.
The basis of this is what is narrated that ‘Umar (Allah – Exalted is He – be pleased with him) appointed Abu al-Darda’ (Allah – Exalted is He – be pleased with him) as Qadi, and two men disputed before him, so he issued a decree in favour of one of them. Then the one who was sentenced unfavourably met ‘Umar (Allah – Exalted is He – be pleased with him), and asked him about his state, and he said: “The decree was issued against me.” So ‘Umar (Allah – Exalted is He – be pleased with him) said: “If I was in his place, I would have passed judgement in your favour.” The one against whom judgement was made said: “What prevents you from passing a decree?” He said: “There is no clear text here, and personal preference is shared [between me and Abu l-Darda’].” (Tabyin al-Haqa’iq, 5:108)
Likewise, Ibn Abi Shaybah and others transmitted from al-Hakam ibn Mas‘ud, he said: “I saw ‘Umar make full brothers share with half brothers in the third [of the inheritance that is allotted for half brothers],” so a man said to him: “You had decreed in this [issue] in the first year on [something] besides this.” He said: “How did I decree?” He said: “You allocated it for the half brothers, and you did not allocate anything for the full brothers.” He said: “That is according what we had decreed, and this is according what we [now] decree.” (Musannaf Ibn Abi Shaybah, 16:232)
Since ‘Umar (Allah – Exalted is He – be pleased with him) did not change his previous decree, despite a change in his earlier opinion because the matter is a place of ijtihad, a new Qadi not altering the decree of an earlier Qadi is therefore more worthy.
The wisdom in this is that judicial decree was instituted in the Shari‘ah to end dispute, so it is necessary for it to eliminate dispute as much as possible. And when the issue is one in which the opinions of mujtahids differ, if we were to open the door of revoking decrees on the basis of differing opinions, the dispute will remain endlessly, as every new Qadi can potentially revoke a previous decree on the basis of his opinion. And since it cannot be said with certainty that any of the different madhhabs are completely baseless, the opinion on which the decree was passed is given weight over [opinions] besides it by the decree which eliminates dispute. Hence, it remains as it is, unless it is contrary to a decisive texts or consensus, in which case there is no room to endorse it, because then it is included in “a judgement against what Allah (Exalted is He) sent down.” However, there is detail to this issue, scattered in the books of jurisprudence in various cases, so we should discuss it in some detail. And Allah (Glorified is He) is the One Who grants accordance to exactitude.
Malik al-‘Ulama’ al-Kasani (Allah – Exalted is He – have mercy on him) detailed this matter, so we will firstly relate his passage in its entirety, and then we will – if Allah (Exalted is He) wills – discuss what can be summed up from it with some clarification and detail. He (Allah – Exalted is He – have mercy on him) said in al-Bada’i‘:
As for the exposition of what must be enforced from judicial decrees and what may be revoked from them when [the case] is raised to another Qadi, we say – and accordance is from Allah:
The decree of the first Qadi either occurs in a matter in which there is an explained (mufassar) text from the Mighty Book and the mass-transmitted Sunnah and consensus, or it occurs in an issue that is a place of ijtihad from apparent (zahir) texts and analogy.
If it occurs in a matter in which there is an explained text from the Book or a mass-transmitted report or consensus, if his decree agrees with that, it will be enforced, and it is not permissible for another to revoke [it], because it occurred absolutely correctly. But if it opposes any of them [i.e. an explained text from the Book or mass-transmitted report or consensus], he rejects it, because it is absolutely invalid.
If it occurred in a matter open to difference in ijtihad, it is either agreed-upon that it is a place of ijtihad or there is disagreement that it is place of ijtihad. If there is consensus that it is a place of ijtihad, the place of ijtihad is either what was decreed or the decree itself. If the place of ijtihad is what was decreed and his decree was raised to another Qadi, the latter will not revoke it, rather he will enforce it because it is a decree on which there is agreement on its soundness, due to what is known that the people, despite their disagreement on a matter, agree that a Qadi may pass judgement on whichever opinion his ijtihad inclines towards. Thus, there is agreement on the soundness of his decree. If another were to revoke it, he would revoke it based on his opinion, and there is disagreement over its soundness amongst the people [i.e. the scholars]. Therefore, it is not permissible to revoke what is right by agreement for an opinion on which there is disagreement over its accuracy. Furthermore, the second [Qadi] does not have decisive evidence, but speculative [evidence], and the correctness of the decree of the first Qadi is established by decisive evidence which is their consensus on the permissibility of the decree on whatever becomes evident to him. Thus, it is not permissible to revoke what has been issued on decisive evidence for that in which there is doubt.
Furthermore, necessity demands the view of the enforcement of the decree based on ijtihad, and that it is not permissible to revoke it, because if revoking it were permissible, the defendant would raise it to another Qadi who held a different view to the first, so he will revoke it, and then the claimant would raise it to another Qadi who holds a different opinion to the second Qadi, so he will revoke his annulment and will decree as the first decreed, and it will lead to an endless dispute and argument, and argumentation is a cause of corruption, and whatever leads to corruption is corruption. If the second Qadi had rejected it, and it was raised to a third Qadi, he should enforce the decree of the first Qadi and ignore the decree of the second Qadi, because the decree of the first was sound and the decree of the second void.
If the decree itself is a place of ijtihad, is it valid or not? For example, if one were to decree on the detainment of a freeman or pass judgement over an absentee. It is permissible for the second Qadi to revoke the decree of the first when his ijtihad inclines towards a different opinion to the first, because his decree here is not valid according to the opinion of everyone. Rather, [it is valid] according to the opinion of some and not others, so its validity is not agreed-upon. Hence, it can be revoked by something equivalent to it [in the strength of its validity]. [This is] distinguished from the first scenario, because the validity of the decree there is established according to the opinion of everyone so is agreed-upon, thus it cannot be revoked based on the opinion of some. Furthermore, when the issue is disputed, the Qadi eliminates one of the different opinions by his decree and he makes it agreed upon by decreeing with a judgement that is valid by agreement. And when the decree itself is disputed, the disagreement is eliminated by disagreement [hence, the disagreement remains].
This is when the decree is in a place on which they agree it is a place of ijtihad. But when it is a place they disagree over whether it is place of ijtihad or not, like the sale of an umm al-walad (a slave-woman who bore her master’s child), will the decree of the Qadi be enforced or not? According to Abu Hanifah and Abu Yusuf (Allah have mercy on them), it will be enforced, because it is a place of ijtihad according to them, due to the disagreement of the Sahabah on the permissibility of selling her. According to Muhammad, it will not be enforced due to the consensus that arose after that from the Sahabah and others that selling her is not permissible, so it is excluded from a place of ijtihad. This goes back to the question of whether a later consensus eliminates an earlier disagreement? According to them [i.e. Abu Hanifah and Abu Yusuf], it does not eliminate it and according to him [i.e. Muhammad] it does eliminate it. Thus, this scenario is disputed in its being a place of ijtihad. Hence, it will be examined: If it is the opinion of the second Qadi that it is a place of ijtihad, his decree will be enforced, and he will not revoke it, as we mentioned in all agreed-upon places of ijtihad. And if it is his opinion that it is outside of the place of ijtihad, and it had become agreed-upon, it will not be enforced; rather, he will revoke it because according to him the decree of the first Qadi occurred in contravention of consensus so was void.
Some of our mashayikh gave another explanation regarding places of ijtihad: If the ijtihad is disgusting and repulsive, the second Qadi may revoke the decree of the first. There is doubt in this, since when it is sound that it is a place of ijtihad, there is no meaning to distinguish between one mujtahid and another mujtahid, because what we mentioned of the reason [for the enforcement of the decree] does not necessitate distinguishing between them, so it should not be permissible for the second to revoke the decree of the first because his decree coincides with a place of ijtihad. (Bada’i‘ al-Sana’i‘, 5:457-8)
The upshot of what al-Kasani (Allah – Exalted is He – have mercy on him) explained is what follows:
- If the decree is in an agreed-upon issue, what agrees with consensus will be enforced, and what opposes it will be null and void.
- If what was decreed is in a place of ijtihad, and there is no disagreement in it being a place of ijtihad, the decree will be enforced by agreement.
- If there is disagreement over what was decreed being a place of ijtihad, the decree will be enforced according to Abu Hanifah and Abu Yusuf, and it will not be enforced according to Muhammad (Allah – Exalted is He – have mercy on them).
- If the decree itself is a place of ijtihad, like decreeing over an absentee and detaining a freeman, the decree will not be enforced according to the one who does not allow it.
The first and second from these points are not in need of explanation and clarification, as is apparent.
Does a Later Consensus Eliminate an Earlier Disagreement?
As for the third point, it is related to when there is disagreement in a matter in the time of the Sahabah and Tabi‘in, and then consensus occurred on one of the two madhhabs, like the sale of umm al-walad, in which there was disagreement in the time of the Sahabah, whether it is permissible or not, and ‘Umar (Allah – Exalted is He – be pleased with him) would opine her sale is not permissible and ‘Ali (Allah – Exalted is He be pleased with him) would opine her sale is permissible. And then consensus occurred in the time of the Tabi‘in on its impermissibility. Imams Abu Hanifah and Abu Yusuf (Allah – Exalted is He – have mercy on them) said that the later consensus does not eliminate the earlier disagreement, so the matter remains a place of ijtihad, despite the consensus that occurred later. Al-Sarakhsi (Allah – Exalted is He – have mercy on him) reasoned that the consensus of the Tabi‘in does not have the power to eliminate the disagreement which occurred between the Sahabah (Allah’s pleasure be upon them), so if a Qadi were to pass judgement on the permissibility of selling an umm al-walad, it would be enforced according to the two Shaykhs [Abu Hanifah and Abu Yusuf], because it is a decree in a matter that is a place of ijtihad. (al-Mabsut, 5:13)
As for Imam Muhammad (Allah – Exalted is He – have mercy on him), he says that the later consensus does eliminate the earlier disagreement, so the matter no longer remains a place of ijtihad after consensus has occurred on one of the two madhhabs. This is why if a Qadi was to pass a judgement on the permissibility of selling an umm al-walad, it would not be enforced because it violates consensus.
Since many Hanafi jurists issued fatwa on the enforcement of a decree, based on the opinion of Shurayh, with the acceptance of the testimony of women in corporeal punishments (hudud) and laws of retaliation (qisas), as will come, after consensus occurred on it not being accepted, it is apparent that this entails that the fatwa is on the opinion of the two Shaykhs (Allah – Exalted is He – have mercy on them).
The opinion of the two Shaykhs is stronger in terms of evidence, due to what many of the jurists have mentioned, and from them, Imam Muhammad (Allah – Exalted is He – have mercy on him), in that the consideration in a place being a locus of ijtihad is the ambiguity of the evidence, not actual disagreement. It appears in al-Fatawa al-Hindiyyah:
And in al-Muntaqa it points to [the reality] that the consideration is of the ambiguity of the evidence not actual disagreement, and this is what Muhammad (Allah – Exalted is He –have mercy on him) mentioned in al-Jami‘ and in al-Siyar al-Kabir, and this is what the author of al-Aqdiyah mentioned. The text of what is mentioned in al-Siyar is: “If an imam from the imams of the Muslims opines that the jizyah is accepted from the idolaters of the Arabs and he accepts [it from them], it is valid, even if this is incorrect according to all [the scholars], because it is a locus of ijtihad.” This is how it is in al-Dhakhirah. (al-Fatawa al-Hindiyyah 3:357)
We cannot say that what some Sahabah or Tabi‘in adopted, against the consensus that occurred later, is not based on evidence, or was not a place of ambiguity, because issuing an opinion without evidence or in an unambiguous place is misguidance, inconceivable from the best of generations. And Allah (Glorified is He) knows best.
When the Decree itself is a Place of Ijtihad
The fourth point which al-Kasani (Allah – Exalted is He – have mercy on him) mentioned is that if the decree itself is a place of ijtihad like passing judgement over an absentee and detaining a freeman, the decree will not be executed according to the one who does not allow it. There are two criticisms of what al-Kasani (Allah – Exalted is He – have mercy on him) said, which must be alerted to:
The first criticism is that we had mentioned in the discussion of talfiq from Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) that the late Hanafis permitted passing judgement over an absentee for necessity and expediency, so using this as an illustration is not appropriate because passing judgement [over an absentee] based on this opinion became unanimous due to the circumstance of necessity and expediency. Probably the examples fitting to this category are the ones Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) mentioned, where he said: “Like if he were to decree in favour of his son over a stranger or in favour of his wife, or the judge was punished for slander because the decree itself is differed over.”
The second criticism is that al-Kasani (Allah – Exalted is He –have mercy on him) mentioned the ruling of this category as though it is agreed-upon amongst the Hanafis and that they agree that if the decree itself is a place of ijtihad, this decree will not pass according to those who do not regard it as a decree, so it is allowed for a second Qadi, if he is from those who do not regard it as a [valid] decree, to revoke it. But it appears from checking other books from the Hanafi madhhab that this ruling is not agreed-upon by the Hanafis themselves, even if its non-enforcement is declared authentic in al-Khaniyyah and al-Zayla‘i and others, but that does not mean it is not differed-upon, as some Hanafis have preferred [the view] that it is enforced in this situation also, as Ibn ‘Abidin transmitted from Ibn al-Shahnah from his grandfather (Allah – Exalted is He – have mercy on him).
Thus the difference between the two opinions is that based on the opinion of al-Kasani and Qadi Khan and al-Zayla‘i (Allah – Exalted is He – have mercy on him), the second Qadi will not implement the first decree, but if he were to implement it, it will be enforced, because the second Qadi decreed in a place of ijtihad. The upshot of this is that the authenticity of the first decree depends on the decree of the second. But on the opinion of Ibn al-Shahnah, the decree of the first will be executed directly, without depending on the other Qadi implementing it. (See Radd al-Muhtar, Kitab al-Qada, Fasl fi al-Habs, 16:417)
Is it a Condition that the Issue is a Place of Ijtihad in the First Generation?
Some of the Hanafi jurists took the position that the decree will only be executed if there is a disagreement in the time of the Sahabah and Tabi‘in. However, when a disagreement occurs after that, the issue will not be regarded as a place of ijtihad. Thus, it appears in al-Fatawa al-Hindiyyah from al-Khassaf (Allah – Exalted is He – have mercy on him) that he did not take into consideration the disagreement between us and al-Shafi‘i, and he only took the disagreement amongst the early ones into consideration, and the intent of the “early ones” is the Sahabah (Allah – Exalted is He – have mercy on him) and those with them and those after them from the Salaf (al-Fatawa al-Hindiyyah 3:357).
However the late Hanafis did not adopt this opinion. Thus, al-Haskafi said in al-Durr al-Mukhtar: “Is the disagreement of al-Shafi‘i taken into consideration? The most correct view is, yes, as stated by Sadr al-Shari‘ah.” Ibn ‘Abidin said under it:
It was said disagreement is only taken into consideration in the first generation. It says in al-Fath: “According to me this is not relied upon, because if it is authentic that Malik, Abu Hanifah and al-Shafi‘i were mujtahids, there is no doubt in the locus being one of ijtihad, and otherwise not. And there is no doubt that they were people of ijtihad and great rank, and this is supported by what is in al-Dhakhirah: ‘The father divorcing a minor girl on condition of [returning her] dowry which he saw to be best for her is valid according to Malik, and the husband is innocent of it. So if a Qadi was to decree by it, it will be enforced.’” (Radd al-Muhtar, 16:450-1)
It should be noted that some Hanafi texts, from them al-Durr al-Mukhtar, mention in a number of disputed issues amongst the four Imams that a judicial decree therein on the opinion of al-Shafi‘i will not be enforced according to the madhhab of the Hanafis, like a decree on the lawfulness of an animal over which bismillah was omitted deliberately and a decree using one witness and an oath and [other controversial issues] besides these.
However, Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) said:
What the scholars of fatwa mentioned regarding the following issues in which the decree of a Qadi will not be enforced is based on a text of al-Quduri, not on what is in al-Jami‘, and whoever said: “There is no consideration of the disagreement of Malik and Shafi‘i” relied on the statement of al-Quduri, and whoever said there is consideration of them relied on what is in al-Jami‘. And it says in al-Waqi‘at al-Husamiyyah “According to Faqih Abu al-Layth: ‘We adopt what is in it, i.e. al-Jami‘.’ However it is mentioned in Sharh Adab al-Qada that the fatwa is on what is in al-Quduri.’” Thus it is clear that they are two authenticated opinions, and the primers (mutun) are in accordance with what is in al-Quduri, and al-Jami‘ is more sound, which is why it is preferred in al-Fath. (Radd al-Muhtar, Kitab al-Qada’, Fasl fi l-Habs 16:434)
The weak slave (Allah pardon him) says:
It is apparent that there is no conflict between the statement of al-Quduri and what is in al-Jami‘ al-Saghir, since the statement of al-Jami‘ al-Saghir is as follows: “And that which the jurists differed over, and the Qadi issues a judicial decree on it, and then another Qadi comes holding a different opinion, he implements it [i.e. the original decree].”
And the statement of al-Quduri (Allah Exalted is He have mercy on him) is as follows: “And when the decree of a ruler is raised to a [second] Qadi, he implements it, unless it opposes the Book or Sunnah or consensus, in that it is an opinion without any proof.” (See al-Hidayah with Fath al-Qadir 6:393)
There is no substantial difference there between the two statements. Rather, al-Quduri only added a known condition, that the decree of a Qadi must not be against the Book or Sunnah or consensus, and there is no doubt that this condition is taken into consideration by everybody, and al-Quduri (Allah – Exalted is He – have mercy on him) did not mention a specific issue in which the a decree therein will not be enforced; and he did not mention that it will not be enforced in [the case of] an animal over which bismillah was omitted deliberately, or in a decree using one witness and an oath or in another issue. Rather, he only explained a well-known rule, and it is apparent that his intent is that the ijtihad of the Qadi is not in a place of ijtihad or the opinion is anomalous on which condemnation of it has occurred from all jurists; e.g. permission of mut‘ah (temporary marriage) or the permissibility of disparity (tafadul) in usurious properties without delay (nasi’ah), and their likes. And it is apparent that he did not intend the opinions of the authoritative jurists. However, those who came after him inserted the lawfulness of an animal over which bismillah was omitted deliberately and a decree using one witness and an oath from those [issues] which opposed the Book and Sunnah, so they applied the opinion of al-Quduri to these cases, and this was then attributed to al-Quduri, although we cannot say that these issues contradict the decisive texts in terms of their indication, and it is inconceivable from Imam al-Shafi‘i (Allah – Exalted is He – have mercy on him) that he opposes the decisive texts. And it is established in its place that he drew evidence from [a number of] hadiths even if there is disagreement over their interpretation. Therefore, the non enforcement of the decree in these issues should not be attributed to al-Quduri (Allah – Exalted is He – have mercy on him), and Allah (Glorified is He) knows best.
Decreeing by other than the Four Madhhabs
Furthermore, if the Qadi issues a decree in which he leaves the four madhhabs, will his decree be enforced? It is apparent from the statement of Ibn Nujaym in al-Ashbah wa l-Naza’ir that it will not be enforced, as he says: “From that which a judicial decree therein will not be enforced is when a decree is issued against consensus, even if there is disagreement from others, as it states in al-Tahrir that consensus has occurred on a madhhab against the four not being practiced, due to the regulation of their madhhabs and their spread and the abundance of their followers.”
However, there is doubt over what Ibn Nujaym (Allah Exalted is He have mercy on him) said from [a number of] perspectives:
(1) This is contrary to what we mentioned from the opinion of the two Shaykhs (Allah – Exalted is He – have mercy on them) that a later consensus does not eliminate an earlier disagreement, and it is apparent is that this [is the opinion that is] is practiced upon, as has preceded in what came earlier.
(2) Ibn Nujaym (Allah – Exalted is He – have mercy on him) only relied in this opinion on al-Tahrir by Ibn al-Humam. However, Ibn al-Humam (Allah – Exalted is He – have mercy on him) did not say that a decree by other than the four maddhabs is not enforced. Rather, he only said that it is not permissible to do taqlid of other than the four Imams today as a general statement, because the madhhabs of others have not been codified. This does not entail that the opinion of others is not taken into consideration in terms of the issue being a matter of ijtihad. The text of Ibn al-Humam at the end of his book al-Tahrir is as follows:
Imam al-Burhan transmitted consensus of the verifiers on the prohibition of the commoners doing talqid of individual Sahabah. Rather, [they must do taqlid of] those who came after them who examined, instituted and codified. It is based on this that some of the later scholars opined that taqlid of other than the four [madhhabs] is prohibited due to the regulation of their madhhabs and the compilation of their rulings and the specification of their generalities, the like of which is not known in other than them now, due to the loss of their followers. And this is correct.
Ibn Amir al-Hajj said beneath it: “And the upshot of this is that it is forbidden to do taqlid of other than the [four] Imams due to the difficulty in transmitting their actual madhhab, and it not being properly established, not that it is not [deserving of being] imitated.”
This is why Shaykh ‘Izz al-Din ibn ‘Abd al-Salam said: “There is no dispute between the two groups in reality. Rather, if the establishment of a madhhab from one of them is ascertained, taqlid of him is permissible by agreement, and otherwise not.” (al-Taqrir wa al-Tahbir, 3:353-4) Thus, it is manifest that that which Ibn al-Humam (Allah – Exalted is He – have mercy on him) discussed has no bearing on the issue of a judicial decree being enforced which we are discussing.
(3) A number of the Hanafi jurists have stated explicitly that a judicial decree will be enforced when it coincides with an opinion of one of the early mujtahids, even if it is against the four madhhabs, because the four Imams are agreed that the testimony of a woman is not accepted in corporeal punishments, and it was narrated from Shurayh (Allah – Exalted is He – have mercy on him) that it is accepted with the minimum number [i.e. 2 women], and Shaykh Abu al-Mu‘in al-Nasafi in Sharh al-Jami‘ al-Kabir said: “If a Qadi was to pass a judgement in corporeal punishments with the testimony of a man and two women, his decree would be enforced, and another [Qadi] does not have the right to revoke it because it is a decree in a matter that is a place of ijtihad.” (Radd al-Muhtar, 5:441) The later Hanafis issued fatwa on this. It appears in al-Fatawa al-Hindiyyah:
The Qadi who is free [from being tied down to a specific madhhab by the ruler], when he decrees by the testimony of a man and two women in corporeal punishments and laws of retaliation and he holds the opinion of its validity, it will be enforced because there is disagreement on the proof on which the decree was based, and from the people are those who allow that – and that is Shurayh. This is what is mentioned in al-Tatar Khaniyyah. And in Fatawa al-Qadi Zahir al-Din [it is mentioned]: “If he was to issue a decree based on the testimony of women in corporeal punishments or retaliation, his decree will be enforced, and another [Qadi] cannot annul it when the [issue] is raised to him, because it was narrated from Shurayh and a group of the Tabi‘in (Allah Exalted is He have mercy on them) that they allowed it.” This is what is mentioned in al-Fusul al-‘Imadiyyah.
It appears in al-Durr al-Mukhtar: “If (a woman) was to decree in a corporeal punishment or retaliation and then it was raised to another Qadi who opines its validity so he implements it, another [Qadi] cannot annul it, due to the disagreement of Shurayh. ‘Ayni.” (Radd al-Muhtar 5:441).
All of these statements prove that the enforcement of a decree is not restricted to the four madhhabs. Rather, it is enforced when it agrees with one of the authoritative mujtahids, with the condition that their opinion is established by a reliable route. And Allah (Glorified is He) knows best.
Is it a Condition that the Qadi be Aware of the Disagreement?
Is it a condition for the decree to be enforced that the Qadi is aware of the disagreement? There are two narrations on this [issue]. It appears in al-Fatawa al-Hindiyyah:
The decree of a Qadi in places of ijtihad is enforced, but he should be aware of the places of disagreement, so he leaves the opinion of his opponent and decrees in accordance with his own opinion, in order that it [i.e. the decree] is sound according to the opinion of all scholars. And if he is unaware of the places of ijtihad and disagreement, there are two opinions on the enforcement of his decree, and the most correct opinion is that it will be enforced. This is mentioned in Khizanat al-Muftin. (al-Fatawa al-Hindiyyah, 3:357)
Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) commented on this issue at length and he mentioned that ‘Allamah Qasim (Allah – Exalted is He – have mercy on him) compiled a treatise on it, and he mentioned its summary and added support to it by [saying] that “his speech is at the peak of verification,” but what al-Rafi‘i (Allah – Exalted is He – have mercy on him) commented on it is more concise and more sound, so that should be referred to for verification of this issue. (See Radd al-Muhtar, 16:417, and the speech of al-Rafi‘i under his statement: “his speech is at the peak of verification.”) And this is not the place to expand on it.
The Decree of a Qadi who is a Muqallid against the Madhhab of his Imam
All the details that have passed relating to the enforcement of the decree in places of ijtihad apply to two situations by agreement: the first situation is that the Qadi is a mujtahid and his decree occurred in accordance with his ijtihad; and the second situation is that he is a muqallid and he decreed in accordance with the madhhab of his Imam, so his decree will be enforced on everybody, whether the one on whom judgement is passed is a mujtahid and his opinion opposes the opinion of the Imam of the Qadi or a muqallid of another Imam.
But when the Qadi is a muqallid of a specific Imam and then issues a decree against his madhhab, they have mentioned that it will not be enforced, and the statements of the group have differed over its reason. Thus in Fath al-Qadir, he provided its reason by his statement: “As for the muqallid, he was only appointed to decree in accordance with the madhhab of Abu Hanifah, for example, so he does not own [the right to] disagree. Hence, he will be withheld from that decree [which opposes the Hanafi madhhab].” Based on this, his decree not being enforced is based on the Imam having appointed him as a Qadi on the condition that he decrees in accordance with the madhhab of Abu Hanifah, so if he leaves his madhhab, he will be withheld from that decree so it will not be enforced. The outcome of this reasoning is that if the Imam did not tie him down to a specific madhhab, his decree would be enforced in places of ijtihad, even if it opposes the madhhab of his Imam.
However, Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) said:
I say: The Sultan’s restriction of him to those [terms] is not [the reason for its] restriction, due to what ‘Allamah Qasim said in his Tashih that the decree and fatwa on what is weak is against consensus. And ‘Allamah Qasim said in his Fatawa: “It is not allowed for the Qadi to issue a decree on a weak opinion, because he is not from the scholars of tarjih, so he will not divert from the sound opinions except for a unpleasant objective, and were he to issue a decree, it will not be enforced because his decree is an unjustified decree because what is justified is the sound opinion. That which was said that a weak opinion is strengthened by a judicial decree, its intent is the decree of a mujtahid, as is explained in its place.” (Radd al-Muhtar, Kitab al-Qada, Fasl fi l-Habs, 16:467)
This proves the decree of the muqallid not being enforced is not based on him being appointed by the Sultan to decree in accordance with a specific madhhab. Rather, the rule is so even if the Sultan does not tie him down to the [madhhab]. The reason for it not being enforced is that, because of his status as a muqallid, he is ordered to issue decree on the sound [positions of] his madhhab. However, this is when the Qadi makes a specific madhhab binding on himself, and believes it is true, and then he decrees on the madhhab of another intentionally against what he believes to be true, because this decree will not be enforced despite it being in a place of ijtihad, and that is because he is in the ruling of the mujtahid who has issued a decree against his personal opinion, and such a decree will not be enforced according to our three companions [Abu Hanifah, Abu Yusuf and Muhammad], because it is a decree on what is not true according to him, so he is following his desires in that, so the muqallid of a specific madhhab is the same.
But, when he decrees on the madhhab of another [Imam], in forgetfulness of his maddhab, it will be enforced according to Abu Hanifah (Allah have mercy on him), and will not be enforced according to the two companions [Abu Yusuf and Muhammad], because it is wrong according to him. The author of al-Hidayah mentioned that the fatwa is on their opinion, and in al-Fatawa al-Sughra [it states] that the fatwa is on the opinion of Abu Hanifah, and Ibn al-Humam (Allah Exalted is He have mercy on him) mentioned that the correct view in this time is that fatwa is issued on the opinion of the two companions because the one who leaves his madhhab does not do so but for vain desire, not for a pleasant objective (Fath al-Qadir, Bab Kitab al-Qadi ila l-Qadi, 6:397).
However, when the Qadi is not a mujtahid and the Sultan did not tie him down to a specific madhhab, nor did he make a particular madhhab binding on himself, so he passes judgement on an issue based on the taqlid of any authoritative jurist, it is apparent that his decree will be enforced. This is because of what is mentioned in al-Fatawa al-Hindiyyah:
It states in Sharh al-Tahawi and Jami‘ al-Fatawa: “When the Qadi is not a mujtahid but he issued a decree based on the taqlid of a jurist, and then it becomes evident that it is contrary to his madhhab, it will be enforced and another [Qadi] cannot revoke it, although he [i.e. the first Qadi] may revoke it. This is what was narrated from Muhammad (Allah – Exalted is He – have mercy on him). Abu Yusuf (Allah – Exalted is He – have mercy on him) said: ‘That which another cannot revoke he cannot revoke.’ Furthermore, the later Hanafi jurists allowed the unlearned to be appointed as Qadi, so he issues decrees based on the fatwa of others, as mentioned in al-Hidayah, and they did not require him to follow a specific madhhab.” (al-Fatawa al-Hindiyya, 3:357)
Likewise, if a Qadi that is a muqallid has made a specific madhhab binding on himself, but he is a learned scholar, so what we mentioned about the mufti that is a muqallid who issues fatwa on another madhhab in some situations with the conditions we mentioned in the issue of issuing fatwa on another madhhab, will apply to him. That will not exclude him from being a muqallid. Thus, it is apparent that if he were to issue a decree in a specific issue against the opinion of his Imam, and in accordance with the opinion of another jurist which he believes to be true in that issue, with the conditions we have stated earlier, his decree will be enforced; and what Ibn al-Humam and others mentioned that the one leaving his madhhab does not do so but for vain desire does not apply to him. And Allah (Glorified and Exalted is He) knows best.
The Command of a Sultan or Emir in an Issue that is a Place of Ijtihad
What we mentioned about the enforcement of the decree of a Qadi in places of ijtihad is based on his having been appointed by the Sultan, and the principle in this is that obedience to the Sultan is obligatory in that which there is no sin, so if he issued a command from matters of ijtihad, it is necessary to obey him. This is why it was narrated from Imam Abu Yusuf and Muhammad (Allah – Exalted is He – have mercy on them) that they said takbir in Salat al-‘Id seven times in the first rak‘ah and six times in the second rak‘ah based on the madhhab of ‘Abd Allah ibn ‘Abbas (Allah – Exalted is He – be pleased with him), although their madhhab is that the extra takbirs in ‘Id is six based on the madhhab of ‘Abd Allah ibn Mas ‘ud (Allah – Exalted is He – be pleased with him).
Ibn ‘Abidin (Allah – Exalted is He have – mercy on him) said:
It says in al-Zahiriyyah: “And this is the explanation of what is narrated from Abu Yusuf and Muhammad, as they did this because Harun ordered them to do takbir with the takbir of his ancestor [‘Abd Allah ibn ‘Abbas] so they did so in obedience to him, not as a madhhab and conviction. It says in al-Mi‘raj: ‘Because obedience of the Imam in that which is not sin is obligatory.’” (Radd al-Muhtar, 5:121)
It is apparent from this that if a command or law was issued by a Muslim ruler in an issue that is a place of ijtihad, obedience to him is obligatory for the masses, even if it is against their jurisprudential school. Thus, the mufti should issue fatwa on [the obligation of] obedience to him. And Allah (Glorified and Exalted is He) knows best.
As for the emir who the Sultan has appointed in a particular area, or appointed him for the leadership of an army from the armies of the Muslims, [the ruling of] his decree is the same [as the Sultan’s] for whoever is under his authority. Al-Haskafi said in al-Durr al-Mukhtar: “As for the emir, whenever he agrees with an issue that is a place of ijtihad, his command will pass, as we have stated previously from Siyar al-Tatarkhaniyyah.” Ibn ‘Abidin (Allah – Exalted is He – have mercy on him) said under it: “That which I saw in Siyar al-Tatarkhaniyyah is: ‘Muhammad said: When an emir commands the army with something, the army must follow him, unless that which was commanded is a sin.’ Thus, the statement of the commentator that ‘his command will pass’ is in the meaning of ‘his obedience is necessary.’ Understand!” (Radd al-Muhtar, 16:468)
(Usul al-Ifta’ wa Adabuh, Mufti Taqi Usmani, pp. 201 – 238)
- That is, a creditor acquires the wealth of a procrastinating debtor, so is it permissible for him to fulfil his right with the wealth he has acquired from him? The madhhab of the Hanafis in principle is that it is permissible if the wealth that is acquired is from the kind of what is due to him. For example, the debt was dirhams and he acquires dirhams from the debtor. But if the wealth acquired is from another kind, for example he is due dirhams and he acquired dinars from the debtor, it is not permissible for him to fulfil his right from it, because that will lead to selling what one does not own. (Muft Taqi Usmani) [↩]
- That is a marriage performed for the express reason of making a woman lawful for her previous husband after a permanent irrevocable divorce, as the only way to undo the impermissibility of marriage between them is by marrying another man and then divorcing him after the marriage was consummated. [↩]
- “Substitution” means to exchange an endowed land or property for another. [↩]
- This is a reference to what was stated earlier that the Qadi in Ibn ‘Abidin’s time was tied down by the emir to not leave the Hanafi madhhab so if he were to pass a decree based on another madhhab it would not be enforced because he was withheld from passing a decree on another madhhab. (Mufti Taqi Usmani) [↩]