Some Protocols of Fatwa - Ustadh Abdus Shakur Brooks

Ibn Ābidīn (1252 A.H), a high standing Hanafi faqīh famously known for his marginal commentary on Radd Al-Muhtār, wrote a versification know as “Rasm Al-Mufti/Protocols of Giving Fatwa” which outlines the details of exactly how to, and what is obligatory on those who, issue fatwa. He declared at the outset of that poem:



"Know that it is obligatory to follow what the competent authorities [that is, the mujtahids in fatwa] have determined to be sound, or to follow the opinion of Zāhir Al-Riwāyah provided they [the mujtahids in fatwa] did not give preference to an opposing opinion [outside Zāhir Al-Riwayah]. So know this point!"


The fact that Ibn Ābidīn choose to start with this very protocol regarding fatwa is no coincidence. The fact that he said ” So know this point!” points to the importance of the message. As it has been for centuries -as it was in his time and even more so today- the principle of adhering to the sound opinion of the senior mujtahid scholars of the school is very much abandoned and ignored so that unqualified pretenders, who fall short of the necessary qualifications of ijtihād that those senior scholars of the school possessed, take liberty in acting in contradiction and violation of established protocol while propagating their conduct as part of classical scholarship; namely following a madhab, in spite of being in clear contradiction. Ibn Ābidīn goes on furthermore to expound on this point by explaining the couplets saying:



"It is obligatory on whoever who wants to act upon something or to give a fatwa to somebody else, to follow what the ulama of his madhab have determined to be the sound opinion (al-rājih). That being the case, he is not allowed to follow the weak opinion (al-marjūh) or to give a fatwa based on it, except in a few instances as will be mentioned in the poem. And verily the scholars have transmitted that there is consensus on this matter."


Ibn Ābidīn goes on to say:


"My statement [in this couplet] “the competent authorities”- meaning those senior scholars qualified to select opinions- is a indicative precept that not just every scholar qualifies in fulfilling the position of selecting the sound opinion."


Furthermore Ibn Abidin, towards the end of his introduction to his marginal commentary on Radd al-Muhtar, in the section concerning protocols of the Mufti, quotes his predecessor Ibn al-Humām (861 A.H/Cairo)[1]:



"The experts in the science concerning the principles of usūl al-fiqh have established [the opinion] that the Mufti [in the real sense of the term] is the mujtahid. As for those who are not mujtahids and memorize/preserve the opinions of the mujtahids, they are not Muftis [in the real sense, meaning they are not mujtahids]. It is incumbent on those Muftis [meaning, non-mujtahids] when they are asked a question, to give the opinion of the mujtahid, like Imam Abu Hanifah for example by means of a report [meaning to answer in accordance to his fatwa regarding the issue]. Thus, it is seen that the fatwas that those in our times give are not fatwas in the real sense [because they are not based on ijthihād but rather transmission] rather, they are transmitted reports from the statements of the real Mufti so that the one who seeks a fatwa can act accordingly."


One of the important points this passage displays is just how Ibn Abidīn’s principle above (in Sharh Rasm Al-Mufti) concurs with the transmission of his predecessors. He didn't pull the principle from his hat, nor did he assume self-achieved understanding or application of the text. On the contrary, we see the opposite behaviour in our times under the assumed idea of contextualisation, which in proper terms is actually the abrogation of established principle, and abandoning the text in exchange for unqualified speculation. In fact what it is, is the assumption to self-interpret the text, either by making it general, or specific, or abrogating it; without having a valid text/nass from the senior scholars of the madhab to support it. This type of assumed contextualization completely contradicts the foundations of usūl al-fiqh- namely the principle “There is no permission to make ijtihād in the presence of a text/لامساغ للاجتهاد في مورد النّص”. To shed more light on this principle it is worth quoting Shaykh Ahmad Al-Zurqā (1938 C.E /1357 A.H), a contemporary well-known for his mastery in the field of usūl al-fiqh, who declared in his Sharh Al-Qawā’id Al-Fiqhiyyah under the thirteenth principle (There is no permission for ijtihād in the presence of a text):



"As for everything else- except that which has been excused- which they [the non-mujthid] have not been given any permission [to excercise ijtihād], when there exist a difference of opinion concerning a matter then there is no permission whatsoever to make ijtihād in those issues. Indeed, even the question of opting for one of two contrary opinions [in the madhab] has to be referred to the senior scholars of the madhab, as described extensively in the subject concerning the protocols of a Mufti.

Thus, it is not permitted for the Mufti nor the Qādī to contradict what the authorities have given preference to (al-rājih), according to his own ijtihād. However, if he does contradict it, it will not be accepted for him since there is no permission for ijtihād in the presence of a nass [which is a text from the imams of the madhab in this case]."


Here is an example of a well-known and learned contemporary concurring to the principles which have been transmitted to us and preserved in the relied upon works of classical scholarship. In spite of his knowledge in the field of usūl he salutes the principle according to the understanding of the classical scholars.

All so important this is, in a time where people who follow the protocols of classical scholarship are deemed as “people living in books” or ” lack insight” or only knowing “the letter of the law”.

Seeing that we have focused here on what some of the Hanafi scholars have stated, in spite of the principal being general, let us take a look into the Maliki school.

Shaykh Muhammad Al-Kurashī (1101 A.H), who was the Imam of Al-Azhar University when it was still an astute place of learning, quoted Al-Tatā’ī (942 A.H) who stated in his work of fatwa called Al-Durar Al-Maknūn:



As for those who are not from them [that is those who are classified as mujtahids], they are not permitted to give fatwa except according to the mashūr. If they give fatwa contrary to it, then verily it will be nullified because [at the time of giving such fatwa] he had already been removed from his post.


Ibn A’rafah [894 A.H][2] said: No relative consideration concerning judicial verdicts is applicable except for rulings that do not conflict with the mashūr and the madhab of Al-Mudawwanah.



Al-Burzūlī [894 A.H /author of Fatāwa Al-Bazūli] concurred with Ibn A’rafah in this opinion saying: The opinion that is obligatory to be enforced, in accordance with the practice/al-a’mal, is that a judge is not permitted to issue verdicts contrary to the mashūr of the Maliki madhab, may Allah be pleased with him.



This incident [of giving a verdict contrary to the mashūr] occurred during the time of Al-Suyūri and he annulled it. Furthermore, Al-Gubrini annulled the verdict of a judge who ruled according to a extremely weak opinion/shādh. The reason being is because whoever is not from the people of ijtihād or those who know the procedure of making preference/tarjīh, it is not permissible for them to give verdicts according to shādh opinions. Futhemore, such a person is removed from their position and their fatwa is nullified.



Verily, those who are permitted to give verdicts contrary to the mashūr from amongst the judges, are those who are renowned as the scholars of the madhab or renowned for being scholars who are permitted to exercise preference/al-tarjīh [such as Ibn Rushd, Al-Māziri, Al-Qarāfi and others from amongst senior scholars]. Those kinds of jurists are no longer found in our times. In fact! Many of the them [in our times] don’t even know the primary texts [meaning in utmost depth as ijtihād requires], but in spite of that they give verdicts based on their baseless observations.


So here we have another clear example of the later scholars depending on classical scholarship regarding the protocols of fatwa in what is binding upon the Mufti and Qādi. Al-Kurashī, who lived in the 12th century, only some two hundred years ago, like Ibn Ābidīn, didn't take the liberty in abandoning the principles but instead he relied up the works of the classical scholars to establish the principle, namely- that the Mufti who is not a mujtahid of any degree (in other words a muqallid) is obligated to give fatwa according to the rājih or the mashūr. He relied upon the classical scholars by merely citing what they said because there is nothing beyond principle then to abide by it. Thus the way of classical scholarship is depending upon the senior scholars of the school in what has been brought down to us, and we don’t take the liberty in assuming the position to operate, in the name of any madhab, according to our impulse and neither do we assume the authority to apply a single principle except that we follow the senior scholars in their application. Nor do we assume the position to abrogate a ruling under the pretext of contextualization without a valid text.

As for some Malikis of today who might think they qualify as a mujtahid of any degree, let him resort to this statement above as well as the many other reports that have come down to us concerning the fact that as early as the eight century scholars stated explicitly that mujtahids within the school of the least degree, never mind absolute mujtahids, were nowhere proven to be found. This is from the mouth of those classical scholars to whose works we ourselves rely upon in understanding the madhab. They themselves counted themselves amongst those who did not qualify. So if we are depending on their works for understanding and they themselves disqualify themselves, then how deluded are we today to assume we have the qualifications to pull rank?

As for the Hanafis of today, let them refer to what Ibn Ābidīn and Ibn Humām as well as others have said.

As for the Shafi'is, let them refer to Shams Al-Dīn Al-Ramlī and Al-Ghazālī and the fact that Imam Suyūti’s claim of acheiving a degree of ijtihād was critically rejected by the Shafi'i scholars in Cairo who took him to task for his claim, in spite of his vast knowledge. [See. Faid Al-Qadīr, Pg.21, Darul Al-Fikr]

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[1] His full name is Abu Abd Allah Muhammad Ibn Muhammad Ibn A’rafah (803 A.H). He was one of the supreme scholars of the Māliki madhab from Tunisia. From his famous works is Al-Hudud in which he explains many technical terms of fiqh.

[2] Ibn al-Humām was one of those rarest of rare phenomena, for he combined mastery of the intellectual sciences with mastery of the transmitted ones, for he was a faqih, a muhaddith, and a mutatakallim; that is one who had mastered fiqh, hadith, and the science called kalam, which treats with beliefs. He was also an expert in the principles of fiqh, logic, grammar and the narrators and principles of hadith. One of his shaikhs in the science of hadith was Ibn Hajr Al-‘Asqalani. Ibn al-Humam is a high-ranking authority in the Hanafi madhab, the author of one of the most highly regarded commentaries on al-Hidayah, an important work of Hanafi fiqh.

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Article taken from HERE