statements made outside the 4 madhhabs

[sufisticated]

sidi salman has quite openly stated in this forum that the methodology in fiqh is that of the four madhhahib and anything outside of that is not considered 'normative' - e.g. minority fiqh/maqasid rulings which use the concept of facilitiation, need and necessity to make things which are for example normally prohibited, permissible - such as the shaking of hands between genders.

according to my own understanding, and the shaykhs who have taught me and those around me, the deen IS the four madhhabs, which may include the strong and weakly transmitted opinions. anything outside of that is in error - MOST of the time.

thus, i have to say when there is a clear defiance of the above in the statements of some of the ulama, people go out of their way to justify it. what is most shocking is that not only is the statement not from the madhhabs, it is implying that the 4 madhhabs are wrong and going against the sunnah.

if a random person were to come on this forum and say 'the niqab is unislamic and a defiance of the Messenger of Allah' - i am near 100% certain that there would be uproar and such a person would be put in his place. but because some people have asabiyyah to certain people, they are too proud and veiled to admit that there *may* be some mistake here.

instead we hear responses like 'you have a vendetta against this shaykh' or 'what are you doing for revival' or 'this is a secondary issue' or 'this was for our people, not the public'

the fact is, the statement was made publically, and thus cannot be ignored, whether primary, secondary or tertiary.

one man against the fuqaha of 1000 plus years.

just my thoughts. you all know who you are.

[loveProphet]

Lol thats true. "I got to get revenge on you for what you said about my Sheikh!"

[sufisticated]

ultimately, the issue here is one of obeying one's shaykh and agreeing with him in all matters.

as far as i am concerned, taking a shaykh in tariqa is primarily for one's suluk, hence one can differ on matters of fiqh - one may even take a different madhhab. one can go as far as differing with one's shaykh in politics also. however, things which may affects one's suluk, which may or may not include non-tasawwuf matters - one needs to obey one's shaykh.

[laughinglion]

I am not interested in a discussion with you since it seems that you are so entrenched in your own understanding you will, no doubt, have great difficulty appreciating the subtle nuances of an understanding that does not conform to your own miopic view. No doubt you could turn much of the foregoing back on myself. Therefore, I am sure you will agree that discussion, can be of no effect. For your edification/edutainment (depending on ones approach) some intersting and relevant research/insight from Shaykh `Umar Faruq `Abda'Llah (Allah bless and protect him and benefit us by him):

Al-Baji, a traditional Sunni jurist, defined ijtihad
as "expending one's fullest [intellectual] capacity in
search of the right ruling."35 The art of ijtihad requires
"utmost scholarly exertion on the part of the
individual jurisconsult [legal scholar] with a view
to arriving at a personal opinion" regarding a new
matter of legal concern.36 Bernard Weiss notes: "The
law was not something to be passively received and
applied; it was rather something to be actively constructed
by human toilers eager to gain the approval
of their Lord for their effort."37
Ijtihad derives from the same root as jihad. Their
common radical, JHD, denotes expending the fullest
effort to achieve a difficult but worthy goal. Although
jihad can clearly apply to armed struggle, the concept
of jihad is essentially an active ethical principle for
improving the world through personal and group effort.
Its high point, however, is the inner struggle for
discipline and self-knowledge.
Ijtihad shares jihad's ethical force but pertains
to the realm of ideas and critical thought. Fazlur
Rahman speaks of ijtihad as an intellectual and moral
jihad or, more concretely, as "the effort to understand
the meaning of a relevant text or precedent in
the past, containing a rule, and to alter that rule by
extending or restricting or otherwise modifying it in
such a manner that a new situation can be subsumed
under it by a new solution."38
The process of ijtihad is an Islamic religious duty
of the first magnitude. As George Makdisi notes,
it was the imperative to perform it that led to the
formation of the classical schools of Islamic law.39
All Muslim denominations have ijtihad traditions,
although certain schools within each denomination
give it greater scope than others. As we have seen, all
Muslims upheld the validity of the famous Hadith:
"Every innovation is misguidance." None understood
it as abrogating the obligation of performing ijtihad
and finding unique solutions to new problems.40
Ijtihad is inherently creative and optimistic. The
Prophet promised that those who performed it assiduously
would be rewarded in the next world, even if
their answers were technically incorrect. He stated:
"If a judge [hakim] does ijtihad and gets the right
answer, he receives two rewards, and, if he is [honestly]
mistaken, he gets one."41 Similar transmissions
asserted that every person performing ijtihad was
ultimately right—even if technically wrong—which
prompted theologians and jurists to debate whether
there could be more than one correct answer for any
given question. Some argued that all dissenting legal
opinions could be correct in their own right, despite
the fact that they were mutually contradictory.42 The
majority of scholars were content simply to say that
every person performing ijtihad receives a reward
when mistaken, not by virtue of the error but because
of obedience to God in fulfilling the command to undergo
the labor of ijtihad.43
Like bid'a, a pertinent question regarding ijtihad
concerns the domains where it is applicable and inapplicable.
Many traditional scholars restricted ijtihad
to non-ritualistic matters, but their opinion was not
a matter of consensus. The caliph 'Umar's institution
of the Ramadan night prayers clearly belonged to the
ritualistic domain, and, in al-Baji's opinion, was an
example of ijtihad at its best.
Ijtihad is a function of the jurist's membership in
society.44 Because the Muslim masses are untrained in
the religious sciences, the classical tradition required
them to follow scholars. Thus, ijtihad was not meant
to be an ivory-tower pursuit but a living "social partnership"
between legal scholars and the society at
large, which continually presented them with "real
legal problems" and "questions to work with." But
even the common people were required to perform
their own type of ijtihad by striving by striving to discern the competence
of individual scholars and selecting the best to
follow, a principle emphatically asserted by the majority
of Sunni and Shi'i scholars and their schools.
The obligation to perform ijtihad pertains to
all times and places, and new legal prescriptions
arrived at through ijtihad may overrule previous
ones. A well-known maxim of Islamic law asserts:
"Innovative [lit., changed] legal judgments will not be
denounced when they reflect changing times, places,
and circumstances."47 Al-Dabbusi, a prominent Sunni
jurist, noted that what may be allowable in one time
or place may become prohibited in another, because
of changing circumstances, just as what was prohibited
may become allowable by the same criterion. He
added that changing times and places are not the only
considerations; there are others, such as the particular
realities of a person's social group. What is beneficial
for one segment of society may be harmful for
another.
As ijtihad is a standing obligation, to neglect it
was cause for censure. The renowned Sunni jurist
al-Qarafi asserted that there was scholarly consensus
(ijma') on harshly reprimanding religious scholars
who handed down legal judgments mechanically
without performing ijtihad and merely followed the
ancient texts in their books literally without regard
for new realities on the ground. The fault of such
jurists was inexcusable and constituted disobedience
of God.49 A great jurist of the next generation, Ibn al-
Qayyim, commented on al-Qarafi's opinion, saying:
This is pure understanding of the law. Whoever
issues legal rulings to the people merely on the basis
of what is transmitted in the compendia despite
differences in their customs, usages, times, places,
conditions, and the special circumstances of their
situations has gone astray and leads others astray.
His crime against the religion is greater than the
crime of a physician who gives people medical
prescriptions without regard to the differences
of their climes, norms, the times they live in, and
their physical conditions but merely in accordance
with what he finds written down in some medical
manual about people with similar anatomies. Such
a person is an ignorant physician; the other is an
ignorant legal scholar but more detrimental.50
Undoubtedly, many traditional jurists not only
failed to live up to the standards of al-Qarafi and Ibn
Qayyim but also demonstrated an exasperating lack
of creativity, stifling its spirit in others. Their rigidity
created the widespread impression among Muslims
and Westerners alike (including a surprising number
of present-day academics and writers of good standing)
that the door of ijtihad was "closed" hundreds
of years ago as a matter of religious principle. The
conspicuous decline of ijtihad at certain periods of
Islamic history reflected a general social and intellectual
malaise, not legal or theological doctrine. In
fact, there is little historical evidence that the door of
ijtihad was ever closed. Further, since Islam never had
anything comparable to a church hierarchy, the "door
of ijtihad" never had a doorkeeper to close it in the
first place.51
The question of who was qualified to perform
ijtihad was not posed by the Prophet but by later
scholars. Their stipulations typically required that
a person performing ijtihad be an upright Muslim
of sound mind with full command of the Arabic language
and mastery of the core disciplines of Islamic
learning, including knowledge of the Qur'an and
sunna, consensus, methods of legal reasoning, and the
overriding objectives of the law.52 The requirements
for ijtihad were not gender-specific; women could and
often did practice ijtihad with distinction throughout
Islamic history.

I hope this will prompt some beneficial reflection in your-self.

with peace

[Colonel_Hardstone]

Asslamo Allaikum Brother,

1) Can you do Ijtehad on a matter which is clear in Qur'aan, Sunnah & Ijmah?

2) Can you denounce and mock the opinion of an over-whelming majority of Sunni Scholars, if your "Ijtehad" contradicts with the Jamhoor?

I have read your post & can't find the answer to the above?

P.S: I think its 1 & 2 which has rubbed some people the wrong way.

I am not interested in a discussion with you since it seems that you are so entrenched in your own understanding you will, no doubt, have great difficulty appreciating the subtle nuances of an understanding that does not conform to your own miopic view. No doubt you could turn much of the foregoing back on myself. Therefore, I am sure you will agree that discussion, can be of no effect. For your edification/edutainment (depending on ones approach) some intersting and relevant research/insight from Shaykh `Umar Faruq `Abda'Llah (Allah bless and protect him and benefit us by him):

Al-Baji, a traditional Sunni jurist, defined ijtihad
as "expending one's fullest [intellectual] capacity in
search of the right ruling."35 The art of ijtihad requires
"utmost scholarly exertion on the part of the
individual jurisconsult [legal scholar] with a view
to arriving at a personal opinion" regarding a new
matter of legal concern.36 Bernard Weiss notes: "The
law was not something to be passively received and
applied; it was rather something to be actively constructed
by human toilers eager to gain the approval
of their Lord for their effort."37
Ijtihad derives from the same root as jihad. Their
common radical, JHD, denotes expending the fullest
effort to achieve a difficult but worthy goal. Although
jihad can clearly apply to armed struggle, the concept
of jihad is essentially an active ethical principle for
improving the world through personal and group effort.
Its high point, however, is the inner struggle for
discipline and self-knowledge.
Ijtihad shares jihad's ethical force but pertains
to the realm of ideas and critical thought. Fazlur
Rahman speaks of ijtihad as an intellectual and moral
jihad or, more concretely, as "the effort to understand
the meaning of a relevant text or precedent in
the past, containing a rule, and to alter that rule by
extending or restricting or otherwise modifying it in
such a manner that a new situation can be subsumed
under it by a new solution."38
The process of ijtihad is an Islamic religious duty
of the first magnitude. As George Makdisi notes,
it was the imperative to perform it that led to the
formation of the classical schools of Islamic law.39
All Muslim denominations have ijtihad traditions,
although certain schools within each denomination
give it greater scope than others. As we have seen, all
Muslims upheld the validity of the famous Hadith:
"Every innovation is misguidance." None understood
it as abrogating the obligation of performing ijtihad
and finding unique solutions to new problems.40
Ijtihad is inherently creative and optimistic. The
Prophet promised that those who performed it assiduously
would be rewarded in the next world, even if
their answers were technically incorrect. He stated:
"If a judge [hakim] does ijtihad and gets the right
answer, he receives two rewards, and, if he is [honestly]
mistaken, he gets one."41 Similar transmissions
asserted that every person performing ijtihad was
ultimately right—even if technically wrong—which
prompted theologians and jurists to debate whether
there could be more than one correct answer for any
given question. Some argued that all dissenting legal
opinions could be correct in their own right, despite
the fact that they were mutually contradictory.42 The
majority of scholars were content simply to say that
every person performing ijtihad receives a reward
when mistaken, not by virtue of the error but because
of obedience to God in fulfilling the command to undergo
the labor of ijtihad.43
Like bid'a, a pertinent question regarding ijtihad
concerns the domains where it is applicable and inapplicable.
Many traditional scholars restricted ijtihad
to non-ritualistic matters, but their opinion was not
a matter of consensus. The caliph 'Umar's institution
of the Ramadan night prayers clearly belonged to the
ritualistic domain, and, in al-Baji's opinion, was an
example of ijtihad at its best.
Ijtihad is a function of the jurist's membership in
society.44 Because the Muslim masses are untrained in
the religious sciences, the classical tradition required
them to follow scholars. Thus, ijtihad was not meant
to be an ivory-tower pursuit but a living "social partnership"
between legal scholars and the society at
large, which continually presented them with "real
legal problems" and "questions to work with." But
even the common people were required to perform
their own type of ijtihad by striving by striving to discern the competence
of individual scholars and selecting the best to
follow, a principle emphatically asserted by the majority
of Sunni and Shi'i scholars and their schools.
The obligation to perform ijtihad pertains to
all times and places, and new legal prescriptions
arrived at through ijtihad may overrule previous
ones. A well-known maxim of Islamic law asserts:
"Innovative [lit., changed] legal judgments will not be
denounced when they reflect changing times, places,
and circumstances."47 Al-Dabbusi, a prominent Sunni
jurist, noted that what may be allowable in one time
or place may become prohibited in another, because
of changing circumstances, just as what was prohibited
may become allowable by the same criterion. He
added that changing times and places are not the only
considerations; there are others, such as the particular
realities of a person's social group. What is beneficial
for one segment of society may be harmful for
another.
As ijtihad is a standing obligation, to neglect it
was cause for censure. The renowned Sunni jurist
al-Qarafi asserted that there was scholarly consensus
(ijma') on harshly reprimanding religious scholars
who handed down legal judgments mechanically
without performing ijtihad and merely followed the
ancient texts in their books literally without regard
for new realities on the ground. The fault of such
jurists was inexcusable and constituted disobedience
of God.49 A great jurist of the next generation, Ibn al-
Qayyim, commented on al-Qarafi's opinion, saying:
This is pure understanding of the law. Whoever
issues legal rulings to the people merely on the basis
of what is transmitted in the compendia despite
differences in their customs, usages, times, places,
conditions, and the special circumstances of their
situations has gone astray and leads others astray.
His crime against the religion is greater than the
crime of a physician who gives people medical
prescriptions without regard to the differences
of their climes, norms, the times they live in, and
their physical conditions but merely in accordance
with what he finds written down in some medical
manual about people with similar anatomies. Such
a person is an ignorant physician; the other is an
ignorant legal scholar but more detrimental.50
Undoubtedly, many traditional jurists not only
failed to live up to the standards of al-Qarafi and Ibn
Qayyim but also demonstrated an exasperating lack
of creativity, stifling its spirit in others. Their rigidity
created the widespread impression among Muslims
and Westerners alike (including a surprising number
of present-day academics and writers of good standing)
that the door of ijtihad was "closed" hundreds
of years ago as a matter of religious principle. The
conspicuous decline of ijtihad at certain periods of
Islamic history reflected a general social and intellectual
malaise, not legal or theological doctrine. In
fact, there is little historical evidence that the door of
ijtihad was ever closed. Further, since Islam never had
anything comparable to a church hierarchy, the "door
of ijtihad" never had a doorkeeper to close it in the
first place.51
The question of who was qualified to perform
ijtihad was not posed by the Prophet but by later
scholars. Their stipulations typically required that
a person performing ijtihad be an upright Muslim
of sound mind with full command of the Arabic language
and mastery of the core disciplines of Islamic
learning, including knowledge of the Qur'an and
sunna, consensus, methods of legal reasoning, and the
overriding objectives of the law.52 The requirements
for ijtihad were not gender-specific; women could and
often did practice ijtihad with distinction throughout
Islamic history.

I hope this will prompt some beneficial reflection in your-self.

with peace

[sufisticated]

For your edification/edutainment (depending on ones approach) some intersting and relevant research/insight from Shaykh `Umar Faruq `Abda'Llah (Allah bless and protect him and benefit us by him):

with no disrespect intended to dr. umar, may Allah reward him, he does take the path that shaykh abdallah bin bayyah promotes.

like i said, that is not the way that traditional sunni ulama take.

and regardless, i don't hear dr. umar ever saying certain fiqhi issues are against the sunnah. dr. umar is well-known to respect the classical opinions, rather than saying they are wrong or unislamic.

[sufisticated]

with respect to ijtihad, we need it - there is no doubt. generally that applies to new issues that muslims are faced with, or existing issues whereby the circumstances may have changed.

ijtihad has to performed by those who are well-versed in the islamic sciences and primary and secondary sources. furthermore, it is done according a specific school or schools - i.e. a certain usuli methodology.

what is striking is that we have fuqaha like shaykh nuh who asks many of his mureedas to wear niqab, at least when in his presence, and many of the hanafi ulama of this day and age calling for it, yet 'ijtihad' leads another scholar to come to the opposite conclusion - that niqab is against the sunnah! how so?

[Assaalik]

Assalaamu 'alikum

sidi salman has quite openly stated in this forum that the methodology in fiqh is that of the four madhhahib and anything outside of that is not considered 'normative' - e.g. minority fiqh/maqasid rulings which use the concept of facilitiation, need and necessity to make things which are for example normally prohibited, permissible - such as the shaking of hands between genders.

according to my own understanding, and the shaykhs who have taught me and those around me, the deen IS the four madhhabs, which may include the strong and weakly transmitted opinions. anything outside of that is in error - MOST of the time.

thus, i have to say when there is a clear defiance of the above in the statements of some of the ulama, people go out of their way to justify it. what is most shocking is that not only is the statement not from the madhhabs, it is implying that the 4 madhhabs are wrong and going against the sunnah.

if a random person were to come on this forum and say 'the niqab is unislamic and a defiance of the Messenger of Allah' - i am near 100% certain that there would be uproar and such a person would be put in his place. but because some people have asabiyyah to certain people, they are too proud and veiled to admit that there *may* be some mistake here.

instead we hear responses like 'you have a vendetta against this shaykh' or 'what are you doing for revival' or 'this is a secondary issue' or 'this was for our people, not the public'

the fact is, the statement was made publically, and thus cannot be ignored, whether primary, secondary or tertiary.

one man against the fuqaha of 1000 plus years.

just my thoughts. you all know who you are.

It is widely believed by those who have no formal Islamic education, or who are only half-educated, that whenever two or more opinions exist we are free to choose whatever suits our fancy. This is far from the truth and this impression has played havoc with this religion in recent decades. The truth of the matter is that a weak opinion is like a nonexistent opinion. The consensus of this blessed ummah was long ago enacted providing that it is impermissible to follow a weak opinion, so what do you think about an incorrect opinion? Ibn Abideen (d. 1252 / 1836; Damascus) said near the end of his introduction to his Radd al-Muhtaar:

وأما إذا كان التصحيح بصيغة يقتضي قصر الصحة على تلك الرواية فقط, كالصحيح والمأخوذ به ونحوهما ممّا يفيد ضعف الرواية المخالفة لم يجز الإفتاء بمخالفها, لما يأتي من أن الفتيا بالمرجوح جهل.

However, if the wording implies that what is correct is restricted to that opinion only; for example “the sound opinion” (al-sahih), or “what is taken” (al-ma’khudh bihi) [that is, the opinion which is taken for fatwa] and the likes of that which imply that the opinion which stands in opposition to it is weak, then it is not permitted to give fatwa according to the other opinion [that is, the weak opinion], since, as we will presently explain [that is, later on in the book Radd al-Muhtaar] the giving of fatwa according to the weaker opinion is ignorance.

The author of al-Durr al-Mukhtaar says towards the introduction of the book in a section concerning protocol for the mufti:

وأن الحكم والفتوى بالقول المرجوح جهل وخرق للإجماع

Both the judgment [by a Qadi] and the fatwa [of a mufti] according to a weak opinion are ignorance, stupidity and violation of ijmaa‘.

Ibn Abideen says in commenting on these words in the introduction to Radd al-Muhtaar, his commentary on al-Durr al-Mukhtaar:

كقول محمد مع وجود قول أبي يوسف إذا لم يصحح أو يقو وجهه, وأولى من هذا بالبطلان الإفتاء بخلاف ظاهر الرواية إذا لم يصح, والإفتاء بالقول المرجوع عنه.

As for example, opting for the opinion of Muhammad when there is an opinion of Abu Yusaf, and even more invalid is the giving of a fatwa according to an opinion which is contrary to Zaahir al-Riwaaayah when [none of the qualified authorities] have declared that other opinion to be correct (sahih), and the giving of a fatwa according to an opinion which the mujtahid has discarded.

What Ibn Abideen means by saying “when none have declared that other opinion to be correct” is that none of the early mashaayikh opted for that opinion declaring it to be the correct one. It is one thing to opt for an opinion and another thing to declare it correct, for in order to declare it correct the mujtahid has to be very sure about himself because what in effect he is doing is disqualifying all other opinions and requiring everybody to follow what he has designated as correct and in doing so he is taking upon himself an enormous responsibility one that he may be asked about on the Day of Judgement. The mashayikh are those mujtahids of lower rank than the, Qadi Khan (d. 592), and Burhan al-Din al-Marghinani, the author of al-Hidaayah (d. 593); and others of earlier periods whose names recur in the standard works of the Hanafi madhhab. They are sometimes referred to as mujtahids in fatwa.
Just to assure the reader that what I have said about the obligation to follow the strong opinion is not something restricted to the Hanafi Madhhab, let us look at what the authorities of the Maliki Madhhab have said in this regard. According to the established rules of the Maliki Madhhab, the mufti is obliged to give his decision according to the opinion that their authorities have designated as mashhoor, unless there is another opinion in contradistinction to it that their authorities have designated as raajih. The mashhoor is that opinion which is supported by a large number of authorities or most of them, while the raajih is that opinion that has a strong proof according to the competent authorities. This has been explained in al-Miyar al-Murab in the beginning of the 12th volume in the recent print by Dar al-Gharb, and in the introduction to the commentary of Mukhtasar al-Khalil by Ibn Hilal (d. 903 / 1497), and in the book Istilah al-Madhhab ‘Inda ‘l-Malikiyah by Muhammad Ibrahim Ahmad published in 1411 H. by Dar al-Buhuth wa ‘l-Dirasat al-Islamiyah in the Emirates, and in the manzumah called Nazm Bu Talaihiyah by Muhammad al-Nabighah al-Ghalawi al-Shinqinti of Mauritania included as an appendix to the previously mentioned work, and in the book of Abu Abd Allah Muhammad ibn Qaasim al-Fasi (d. 1331 / 1913) Rafa’ al-‘Itab wa ‘l-Malam ‘amman Qala al-‘Amal bi ‘l-Da’if Ikhtiyaran Haram.. In this last mentioned work, Shaikh Muhammad ibn Qaasim included in the third section of the book a chapter he titled في دليل كون العمل بالمشهور أو الراحج واجبا كما أن العمل الحكم به واجبا; that is, “Concerning the proof that one is obligated to follow the mashhoor or the raajih in one’s own practice as in giving fatwa and a judicial decision.” He compiled in this chapter the recorded statements of twelve great men of the Maliki Madhhab including the statement of Imam Malik. He opened the chapter saying:

اعلم أنه قد صرّح بوجوب ذلك جماعة من العلماء العاملين والفقهاء الراسخين. منهم: الإمام مالك وابن القاسم وعيسى بن دينار وابن مزين كما نقل ذلك عنهم الونشريسي في المعيار, ونصّه بعد كلام: وما أحسن ما ذكره ابن مزين عن عيسى بن دينار عن ابن القاسم عن مالك أنه قال: ليس كل ما قال رجل قولا وإن كان له فضل يتبع عليه لقوله تعالى: الذين يستمعون القول فيتّعون أحسنه أهـ ومعنى كلام مالك المذكور أنه ليس كل قول صدر من عالم فاضل يعتبر ويعتدّ به, بل إنما يعتبر قول له حظ من النظر, وهو المشهور أو الراحج ويرحم الله القائل:

إلا خلافا له حظ من النظر وليس كل خلاف جاء معتبرا

Know that numerous dedicated ulamaa and firmly grounded fuqahaa’ have declared that [that is, that it is obligatory to follow the mashhoor or the raajih in one’s own practice as well as in the giving of fatwa and judicial decision]. Among them was Imam Malik (d. 179 / 795) and Ibn al-Qaasim (d. 191 / 807) and ‘Isa ibn Dinar (d. 212 /827) and Ibn Muzayyin (d. 260 / 874) as was reported by al-Wanshareesi (d. 914 / 1508) in his al-Mi‘yaar [al-Mu’rab] where he said:

How fine is what Ibn Mazayyin reported from ‘Isa ibn Dinar from Ibn al-Qaasim from Malik; namely, that he said:

Not everything a man has said, no matter how distinguished he might be, is to be followed, for Allah Ta’ala has said: “Those who listen to what is said and follow the best of it.” (39:18)

What Imam Malik meant is that not everything that a distinguished ‘alim has said is to be heeded and accepted; rather that opinion will be accepted which has been favorably received by the competent authorities (lahu hazz min al-nazr), and that is the mashhoor, or the raajih. May Allah show mercy to the one who said [in verse]:

Not all contestation counts; rather, the contestation of those who have a share in nazr (reflection).

The term I translated above as “which has been received by the competent authorities” literally means a statement which has had its share of nazr; now nazr in the usage of the fuqahaa’ refers to the examination, or speculation, or reflection of those who are competent to distinguish weak from sound statements and the stronger from strong statements and for this they require some share in ijtihad even if it is of a lower degree. We will see it used in this way in a text from Shaikh ‘Ulaish, the Maliki Shaikh of al-Azhar last century which we will cite presently (see p. ?). The correctness of this interpretation of nazr is demonstrated by Habeeb Ahmad al-Kiraanwi, the author of Fawaa’id fi ‘Uloom al-Fiqh, one of the best works, nay the best work ever written in defence of taqlid, and in the refutation of those who authorize the pseudo-ijtihad of impostors; he says there:

وقوله: "إن كانت قد تبينت له الدلالة في خلاف قول من قلده, فقد علم أن تقليده في خلافه اتباع لغير المنزل" باطل لأن العلم الحاصل للجاهل من جهة النظر والاستدلال كلا علم لحديث: قتلوه, قتلهم الله, ألا سألوا إذ لم يعلموا, إنما شفاء العي السؤال, فلا بدّ أن يكون العمل برأي نفسه اتباعا لغير المنزل لا تقليد العالم, فافهم.

He [that is, the statement of Ibn al-Qayyim (d. 751 /1350; Damascus) who is his book A’lam al-Muwaqqi’in devoted a lot of time trying ineptly to establish that taqlid is impermissible] says:

If he realized that the proof goes against what the one he follows [that is, the imam he follows in taqlid] holds, he knows that his following him [that is, in taqlid] in his opinion that is against the proof is following other than what has been revealed [to the Prophet صلى الله عليه وسلم].

His statement is nonsense because the knowledge that an ignorant person [which he has defined as a non-mujtahid] obtains by reflection (nazr) and argumentation is non-knowledge; that is corroborated by the hadith:

They have killed him! May Allah kill them! Why did they not ask when they did not know? The remedy of ignorance is to ask.

Therefore, it is seen that following one’s own opinion is following other than what has been revealed not the following of an ‘alim. Understand the point.

We see here that the reflection of the non-mujtahid is ignorance and incompetence; whereas, the reflection of a mujtahid is knowledge derived competently from the revelation. The former is worthy; the latter is worthless. What Imam Malik and the poet whose verse was quoted above mean then by the term nazr is the reflection, or speculation of the competent authority; that is, the mujtahid even if he a mujtahid of the lower degree by which we mean one competent to give fatwa on those issues for which there is no report from his imam, or to interpret ambiguous statements from his imam, or to decide which is the sound opinion between two or more contradictory reports from his imam.
Next Shaikh Muhammad Qaasim quoted Ibn Abi Jamrah (d. 695 or 699 / 1296 or 1300) and his shaikhs:

وقد كان من لقينا من الفضلاء الأجلة يقول: لا يحل لأحد أن يتدين إلا بالمشهور, ولا يفتي إلا به.

Those illustrious and distinguished people whom I met used to say: “It is not lawful for anybody to follow in his religion [any opinion] except what is the mashhoor [opinion], and one may not give any fatwa but it.

After mentioning this Shaikh Muhammad ibn Qaasim mentioned that this statement of Ibn Abi Jamrah was reported by Abu al-Sa’ud Abd al-Qaadir al-Fasi (d. 1091 / 1680) in his book al-Nawazil. It should be obvious that he quoted it as an authoritative statement.
Shaikh Muhammad ibn Qaasim mentioned after a couple of other examples a statement from the same Abu al-Sa’ud Abd al-Qaadir al-Faasi, whom we just mentioned, in his book al-Nawazil:

العمل بالمسهور هو الواجب وارتكاب الرخصة يوما ما للضرورة سائغ.

Following the mashhoor in one’s practice is obligatory, while following [the weak opinion, or the opinion which stands in opposition to the mashhoor] as a dispensation one day out of necessity is acceptable.

Now before the uninitiated in the science of fiqh jump to conclusions and give fatwa according to the weak opinion and put it themselves into practice every other day, they should pay close attention to the words “following” and “one day” and “out of necessity”. Shaikh Abd al-Qaadir devoted several chapters in his book in discussion of the fact and in the enumeration of the proofs that it is while it is permissible to put an opinion which is weak into one’s own practice, provided it is not extremely weak, and provided that there is a real, inescapable necessity, which does not simply mean some inconvenience, and provided that it is done on a single occasion, and provided that one does not give for others a fatwa or judicial decision based on the weak opinion; otherwise, it is not permissible to do so if these conditions do not obtain. So just let the rash be careful.
Next he quoted a statement from Shaikh Ali al-Sa’idi al-‘Adawi (d. 1189 / 1775) , the author of a supercommentary called Haashiyatu ‘ala Kifayatu ‘l-Taalibi ‘l-Rabbaani, a commentary on Risaalatu Ibn Abi Zaid;

وأما إذا كان أحدهما [أي القولان] مشهورا, فيجب العمل بالمشهور, ولا يجوز العمل بالضعيف, ولو في خاصة نفسه.

However, if one of them [that is, the two contradictory opinions] is mashhoor, then one is obligated to follow in one’s practice the mashhoor, and it is impermissible to follow the weak opinion in one’s own practice.

Next Shaikh Muhammad ibn Qaasim quoted Imam Abu Abd Allah Muhammad ‘Ulaish (d. 1299 / 1882) , the defiant, fearless Shaikh of al-Azhar last century in his al-Ajwibah:

إذ يجب العمل بالراجح والمشهور مذهبنا, وإن لم نعلم دليله ولا قوّته ولا الاتفاق عليه, فإنه - أي ما ذكر من الراحج أو المشهور- حجة علينا ما دمنا في ربقة التقليد. قال ونظْرُنا في الأدلة والاتفاق والاختلاف فضول, إذ وظيفتنا مخض التقليد واتّباع الراجح أو المشهور, والله سنحانه وتعالى أعلم.

….For one is obligated to follow in one’s practice [the opinion] that is raajih, or mashhoor of our madhhab [that is, the Maliki Madhhab] even if we do not know the proof for that opinion, nor the strength of the opinion [that is, by ourselves; rather, we can know it by the fact that the competent authorities have declared it to be mashhoor, or raajih], nor the fact that there is agreement [that is, by ourselves; rather we can know that by the fact that the competent authorities have declared it to be the mashhoor], for it [that is, the raajih, or the mashhoor] is the compelling authority over us as long as we are tied with the tether of taqlid. Our speculation (nazr) based on the proofs and on the agreement [of the fuqahaa’] and their disagreement is meddling [the Arabic term fudul here expresses a presumptuous and vain interference in a matter for which we have no competence], for our job is pure taqlid, and ours is to follow the raajih, or the mashhoor. Allah, whom I declare to be perfect beyond all defect and exalted beyond all comparison, knows better.

In al-Miyar al-Mu’rab al-Wanshareesi (d. 914 / 1508) quoted his shaikh who quoted Ibn Farhun, an ‘alim of high authority in the Maliki madhhab:

فهل يلزم القاضي المقلد إذا وجد المشهور أن لا يخرج عنه؟ وذكر عن المازري أنه بلغ درجة الاجتهاد وما أفتى قط بغير المشهور وعاش ثلاثا وثمانين سنة, وكفى به قدوة في هذا! فإن لم يقف على المشهور من الروايتين والقولين, فليس له التشهي والحكم بما شاء منهما من غير نظر في الترجيح.

Is the qadi who is a muqallid [that is, he is not a mujtahid of any degree] if he finds an opinion [which the competent authorities have designated as] mashhoor compelled to not depart from it? It is reported that al-Mazari [d. 536 / 1141] attained the rank of ijthihad, and yet never did he give a fatwa against the mashhoor and he lived to be eighty-three years old, and enough is al-Mazari as an example in this [that is, sticking to the mashhoor]. Furthermore, if one does not discover any of the authorities designating either one of two reports [from Imam Malik or one of the Maliki imams], or of two opinions, one is not permitted to follow his whim and chose either one of them without seeking to find some [legitimate] way of giving preponderance (tarjih) to one of them.

Upon completing the citation of twelve authorities Shaikh Muhammad ibn Qaasim al-Faasi, some of which we have omitted in order to make what is already a long digression briefer, on the obligation of following the mashhoor and the raajih, summarized the matter thus:

فتحصل من كلام هؤلاء الأئمة الأعلام أن العمل بالمشهور أو الراجح واجب, فالاقتداء بهم واجب على ما قال ربي الله ثم استقام, ولنختم هذا الفصل بكلام العلامة ابن السبكي في جمع الجوامع ليكون كلامه لكلام الأئمة المتقدمين كالطابع ونص المقصود منه ممزوجا بشرحه: (والعمل بالراجح واجب) بالنسبة للمرجوح, فالعمل به ممتنع سواء كان الرجحان قطعيا أو ظنيا اهـ منه في كتاب التعادل والتراجيح, فقوله العمل بالرجحان يسمل ما إذا كان راجحا بكثرة الأدلة وقوّتها, وهو المسمى بالراجح عند الفقهاء كما مرّ في الفصل الأول, ويشمل ما إذا كان راجحا بقوة قائله وهو المسمى بالمشهور عند جمهور الفقهاء كما مرّ أيضا, نقل ذلك الشمول بعض المحققين عن الشيخ التاودي, والله اعلم.

Thus, what we have learned from the statements of the preceding illustrious imams is that we are obligated in our practice to follow the opinions which are mashhoor, or raajih, and furthermore, all those who declare “My lord is Allah” then are steadfast [in obeying Him] are obliged to follow them [because they know what we do not and because they are to be trusted]. Let us close this section with the mention of what [Taj al-Din] al-Subki [d. 771 / 1370; Damascus] wrote in is Jam’u ‘l-Jawaami’ [a famous work in the principles of fiqh] including its commentary [by Jalaal al-Din al-Mahalli (d. 864 / 1459; Cairo)]:

We are obligated to follow in our practice the strong opinion (al-raajih); that is, with respect to the weak opinion, for it is prohibited to follow the weak opinion regardless of whether the preponderance [of the strong opinion] is determined by proofs which are conclusive [qat’i; which means they leave now room for any doubt], or by proofs which are tentative [zanni; which means that while they may be strong, they leave some room for doubt]. Now the author’s statement “to follow in our practice the strong opinion” includes what has been determined as strong based on the number of different proofs and their strength, and that is what is technically called al-raajih by the fuqahaa’ as we discussed previously in the first section

A number of persons who have set themselves up as authorities routinely resort to weak, or even incorrect opinions playing on the general ignorance of the Muslims, so let the reader take proper stock of the preceding citations.
Ibn Abideen cited statements from a number of ulamaa of the different madhhabs including Ibn Hajr al-Haitami and Ibn Salaah confirming that there is complete agreement (ijmaa) among those whose opinion counts that that is impermissible to act or give fatwa according to weak opinions; he said in the beginning of his article Sharh Manzoomah 'Uqood Rasm al-Mufti, which is his poem on protocol for the mufti along with his commentary on that poem; it has which has been published along with his other articles in Majmoo'ah Rasaa'il Ibn 'Abideen;

ترجيحه عن أهله قد علما اعلم بأن الواجب اتباع ما
يرجحوا خلاف ذاك فاعلم أو كان ظاهر الرواية ولم



أي إن الواجب على من أراد أن يعمل لنفسه أو يفتي غيره أن يتبع القول الذي رجّحه علماء مذهبه، فلا يجوز له العمل أو الإفتاء بالمرجوح إلا في بعض المسائل للضرورة القاسية كما سيأتي في النظم. وقد نقلوا الإجماع على ذلك في الفتاوى الكبري للمحقق ابن حجر المكي: قال في زوائد الروضة إنه لا يجوز للمفتي والعامل أن يفتي أو يعمل بما شاء من القولين أو الوجهين من غير نظر [حتى يعرف الراجح منهما، وإن كان غير أهلا للنظر، وهو حكم كل أهل زماننا، فالواجب أن ينقل الترجيح من أهله] ، وهذا لا خلاف فيه وسبقه ألى حكاية الإجماع فيها ابن الصلاح الباجي من المالكية[ ت 474] في المفتي وكلام القرافي[أيضا من أئمة المالكية، ت 684] دال على أن المجتهد والمقلد لا يحل لهما الحكم والإفتاء بغير الراجح لإنه اتباع الهوى[كما رأيتَ في كلام الغزالي في رسالته إلى أبي بكر ابن العربي الذي نقلت لك وترجمته لك] وهو حرام إجماعا، وأن محله في المجتهد ما لم تتعارض الأدلة عنده و يعجز عن الترجيح وإن لمقلده حينئذ الحكم بأحد القولين إجماعا. وقال الإمام المحقق العلامة قاسم بن قطلوبغا [المحدث الحنفي، تلميذ لابن الهمام، ت 879] في أول كتابه تصحيح القدوري: إني رأيت من عمل في مذهب أئمتنا رضي الله عنهم بالتشهي حتى سمعت من لفظ بعض القضاة هل ثمّ حجر؟ فقلت نعم اتباع الهوى حرام، والمرجوح في مقابلة الراجح بمنزلة العدم، والترجيح بغير مرجّح في المتقابلات ممنوع. وقال في كتاب الأصول لليُعمري [من أئمة المالكية، ت 734]: من لم يطلع على المشهور من المذهب من الروايتين أو القولين، فليس له التشهي والحكم بما شاء منهما من غير نظر في الترجيح [والأمر كما قلت من قبل في تعليقي على كلام ابن حجر]. وقال الإمام أبو عمرو [ابن الصلاح] في آداب المفتي: اعلم أن من يكتفي بأن يكون فتواه أو عمله موافقا لقول أو وجه في المسألة ويعمل بما شاء من الأقوال والوجوه من غير نظر في الترجيح فقد جهل وخرق الإجماع.

Know that it is obligatory to follow what the competent authorities have determined to be sound, or to follow the opinion of Zaahir al-Riwaaayah and provided they [the competent authorities] did not give preference to an opposing opinion [outside Zaahir al-Riwaaayah], so be informed. [I have rendered the foregoing passage in prose although the original was in rhyming verse.]

We mean to say that it is obligatory for one who wants to act for himself, or to give a decision (fatwa) to another, to follow the opinion which the ulamaa [that is, those who are mujtahids in fatwa not the puny people of later times] of his madhhab have confirmed (rajjahahu / رجّحه) [that is, declared to be sound or correct]. Thus, it is not permitted for him to act, or to give fatwa, according to the weak opinion [al-marjooh / المرجوح, which literally means “outweighed”] except in a few issues for some pressing need [with conditions similar to those mentioned by Shaikh Abd al-Qaadir previously; see page 41] as we will mention presently in the poem [that is his own manzoomah which he is here commenting on]. The thorough verifier and careful investigator (al-muhaqqiq) Ibn Hajr [al-Makki (d. 975 h. / 1567; Makkah)] reported that there is consensus (ijmaa) on this matter in his book al-Fataawaa al-Kubraa [also known as al-Fataawaa al-Fiqhiyyah], for he wrote: “He wrote [al-Nawwawi?]:

It is not permitted for the mufti or even for the one who simply wants to act for himself to follow whichever of two opinions he pleases, or whichever interpretations of the statements of the imam (al-wajhain) without investigating (al-nazr) , and that is something about which there is no disagreement.

Before Ibn Hajr, Ibn Salaah [d. 643 / 1245; Damascus] and [Abu ‘l-Waleed] al-Baaji [d. 474 / 1081; Almeria, who was a mujtahid in fatwa and a consummate and famous muhaddith] of the Malikis in [his book] al-Mufti, and what al-Qaraafi [(d. 684 / 1285; Cairo) a Maliki imam of high standing and a specialist in the principles of fiqh] said indicates that both it is not lawful for either the mujtahid or the muqallid [that is, the non-mujtahid who is bound to follow the mujtahid so that it does not act blindly] to give a decision [in a court of law] or a fatwa according to other than the strong opinion (al-raajih) because doing otherwise is to follow one’s desire [since whatever is not based on knowledge must be based on whim or sentiment] and that is haraam [absolutely prohibited] by consensus. This applies to the mujtahid in those cases where there is no conflict among the proofs that he has related to an issue, and where he is not incapable of determining one of the proofs to be stronger [for otherwise, he is free to choose whichever opinion one he prefers]. If the mujtahid is incapable of determining one of two opinions to be stronger, then the one who follows him (al-muqallid) is free to choose whichever of the two opinions he wishes, and this is a matter of consensus (ijmaa‘), [that is, agreement among those whose opinion counts, namely, the mujtahids].
The imam [that is, the one whom the ulamaa make their arbiter in questions of dispute], the muhaqqiq [that is, one who is astute at verifying learned issues and is utterly thourough in his investigations proving everything that he says] the allaamah [that is, the very learned] Qaasim al-Qutloobughaa’ [d. 879 / 1474; Cairo] in the beginning of his book Tas’heeh al-Qudoori / تصحيح القدوري :

I have seen those who act arbitrarily in the madhhab [that is, the Hanafi Madhhab] of our imams, may Allah be pleased with them, [note that he purposely mentioned imams to suggest that not everything everyone who claims to follow the Hanafi Madhhab says warrants being ascribed to the madhhab ]. Indeed, I heard a qaadi (judge) say: “Is that prohibited”? I replied:

Yes, because following one’s desire is haraam, and the weak open (al-marjooh / المرجوح) [literally, the opinion which is outweighed] in the face of the strong opinion (al-raajih / الراجح) is as if it did not exist, and choosing one opinion over another that opposes it without any basis is prohibited.

Al-Ya‘muri [a Maliki alim] said in his Kitaab al-Usool:

Whoever does not find the mashoor in the madhhab from one among two reports [from Imam Malik], or two opinions in the madhhab , he may not follow his whim or choose whichever opinion he pleases without investigating what opinion deserves to take precedence.

Imam Abu ‘Amr Ibn al-Salaah said in his Adaab al-Qaadi:

Know that whoever confines himself to giving a fatwa, or basing his practice, on an opinion, or an interpretation on a mas’alah (issue) and follows whatever he pleases of the opinions and interpretations without considering what opinion deserves to take precedence acts stupidly and violates consensus.

Ibn Abideen wrote in the same article a little later:

وقولي [أي في النظم] عن أهله، أي أهل الترجيح، إشارة إلى أنه لا يكتفي بترجيح كل عالم كان.

My statement [in the verse mentioned above at the outset of the previous long quotation] “the competent authorities,” that is, “those who are qualified to weigh the conflicting opinions” is an intimation of the fact that not just every alim’s weighing (tarjeeh) is sufficient.

Wa salam