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The Issue of Taqlid and Adopting a Madhhab

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 Shariah 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-Ismaili: 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 alKhawlani (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 Muadh 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 Shariah. 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 Shariah, 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 Shariah 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
Shariah. 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 Shariah 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 Shariah 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 Mamar 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 1 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 ones 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)
Pre-emption (shufah) 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.
1

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 Shariah 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 obligatoryBased 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 nonmujtahid 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 Tabiin, 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-Awzai,
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 madhhabbut it
is not permissible to do taqlid of the Sahabah and likewise the
Tabiin, 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 Shafii,
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 Shariah 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-Faiq Sharh Kanz
al-Daqaiq. (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 Shariah in the Quran 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 (muzaraah), and taking payment for teaching the
Noble Quran, and in the issue of a person duped [in a monetary
transaction] having the option [to cancel the deal] and other wellknown issues.
This is due to what our ulama have stated explicitly that taqlid
of a specific Imam is not a ruling of the Shariah 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 Shariah 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 alGongohi (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 Shariah 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 Aishah
(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
Kabah, 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 Kabah 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 Shariah, even if weakLikewise it is narrated
from Ibn Masud (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
Masud (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 Quran 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 Quran and Sunnah] is negated, it is necessary
to act on the Quran and Sunnah, and rigidity on taqlid in such a
situation is the taqlid on which censure has occurred in the

Quran 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 understandingHowever, 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 Shariah. 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. AlBukhari 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 Shariah, and he does not aim
but adherence to the Shariah; 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 bidah, 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-Jamaah, because the Ahl al-Sunnah wa lJamaah 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 Quran 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 Shariah 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 Quran 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
Quran 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 (masail) 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 Shariah
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 Tabiin, and holds
to them in the explanation of the rulings of the Quran 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
Tabiin, 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-Nakhai, and al-Shafii 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-Shafii (Allah have mercy on him and be pleased with him)

said in a place of Hajj: I said this doing taqlid of Ata. (Ilam


al-Muwaqqiin 4:179)

Issuing Fatwa on the Ruling of another Madhhab

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
Shariah, 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 Shariah 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 Shariah is not restricted to the madhhab of one Imam.
Rather, every madhhab is a component from the components of
the Shariah and a path from the paths to practice upon it. Indeed,
the Shariah that was sent down revolves around all the
madhhabs. Whoever thinks that the Shariah 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
Shafiis on the permissibility of taking salary for teaching the
Quran, and on the madhhab of the Malikis in the issue of the
wife of a lost man, impotent man and violent man (Radd alMuhtar, 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-Shafii in the issue of acquisition 2 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

22

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. [Mufti Taqi Usmani]

on irresponsibility. Ibn Abidin stated this explicitly in Kitab alHajr (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-Nazair under the rule, Difficulty demands
creating ease. (al-Ashbah wa l-Nazair, 1:236)
Similarly, the Hanafi jurists issued fatwa on the madhhab of the
Shafiis 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 alTahbir, 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 Shafiis
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 alTirmidhi, 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-Awzai (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-Awzai 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 tahlil3 [the position] of those who are lenient therein,
and the like of that, he subjects himself to dissociation [from
Islam]. (Siyar Alam 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). Mamar 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

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.

is he an imam who relates all that he hears. (Jami Bayan alIlm 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 Shariah 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 Shafiis 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 Shafii mufti allows transfer, for
example, from the madhhab of Malik to the madhhab of alShafii, 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-Shafii 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 Shafii, so I said to him: In the madhhab of Malik, the
hair of swine is pure, but you are Shafii, 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-Shafii 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 alTahrir 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 Bad
Masail 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 alAzim 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-Rasail al-Zayniyyah in the
situation of selling an endowment (waqf) not in the form of
substitution (istibdal)4: 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)
Substitution means to exchange an endowed land or property for
another.
4

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-Rasail 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 Jumuah 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 alNawazil 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-Shafii (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 Shafiis in the ritual
bath, and apparently he had observed the disagreement due to
leading the Jumuah. 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-Suuds (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 alMukhtar 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-Suud.
(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-Suud. Thus, it is apparent that Abu al-Suud (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 alHumam 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 alAttar from the Shafiis 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 Quran. 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 Allahs path.
Surely those who go astray from Allahs 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-Shafii 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 alAyn.
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 preceded 5 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-Shafii (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 a reference to what was stated earlier that the Qadi in Ibn
Abidins 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 Umani]

This is different from one who adopts the madhhab of the


Shafiis 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, alThanawi, 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 nonsequentially, his wudu is not valid according the Shafiis, 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
Shafiis 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 inlaws 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
Quran 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 alAshbah by al-Biri from Sharh al-Hidayah by Ibn al-Shahnah alKabir:
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-Sharani 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 alHasan 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-Shafii 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 Tabii, 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 Quranand 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
Shafiis 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-Shafii
(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-Shafii (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-Haqaiq, 5:108)
Likewise, Ibn Abi Shaybah and others transmitted from alHakam ibn Masud, 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
Shariah 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-Badai:
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 masters 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. (Badai al-Sanai, 5:457-8)
The upshot of what al-Kasani (Allah Exalted is He have
mercy on him) explained is what follows:
1. 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.
2. 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.
3. 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).
4. 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 Tabiin, 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 Tabiin 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 Tabiin does not have the power to eliminate the
disagreement which occurred between the Sahabah (Allahs
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 alHindiyyah 3:357)
We cannot say that what some Sahabah or Tabiin 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-Zaylai


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-Zaylai (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 Tabiin. 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-Shafii,
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, alHaskafi said in al-Durr al-Mukhtar: Is the disagreement of alShafii taken into consideration? The most correct view is, yes,
as stated by Sadr al-Shariah. 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-Shafii 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 alMukhtar, mention in a number of disputed issues amongst the
four Imams that a judicial decree therein on the opinion of alShafii 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
Shafii 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-Waqiat 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 lHabs 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 mutah (temporary marriage)
or the permissibility of disparity (tafadul) in usurious properties
without delay (nasiah), 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 alQuduri 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-Shafii (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-Nazair 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 alTahrir 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-Muin 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 Tabiin (Allah Exalted is He have mercy on them)
that they allowed it. This is what is mentioned in al-Fusul alImadiyyah.
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. (alFatawa 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-Rafii (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-Rafii 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 Sultans 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 alHindiyya, 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 rakah and
six times in the second rakah 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-Miraj:
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
Sultans] 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)

Translated by Zameelur Rahman