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Post by Zameel on Oct 31, 2015 21:44:48 GMT
The obligation of a Ḥanafī muqallid today is to follow the fatwā position of the madhhab (body of juristic rulings) of Imām Abū Ḥanīfah.
This can be better appreciated by an understanding of the ranks of the fuqahā’ in the Ḥanafī madhhab, and their contributions to the madhhab.
These are, broadly speaking, as follows:
1. Mujtahid muṭlaq ghayr muntasib (unaffiliated absolute mujtahid)
This is a mujtahid with full command over the nuṣūṣ (texts) of Sharī‘ah who is entirely independent, and does not affiliate himself to the madhhab of another mujtahid.
This rank belongs to Imām Abū Ḥanīfah alone, the founder of the madhhab, and the one whose taqlīd is ultimately made by those who adhere to his madhhab.
2. Mujtahid muṭlaq muntasib (affiliated absolute mujtahid) from the students of Imām Abū Ḥanīfah
These are the students of Imām Abū Ḥanīfah who, like him, have full command over the nuṣūṣ of Sharī‘ah and can independently derive rulings from them, but they ascribe themselves to the madhhab of Imām Abū Ḥanīfah for two reasons:
a. In most issues, they agreed with Imām Abū Ḥanīfah
b. They acquired their training in fiqh and ijtihād under Imām Abū Ḥanīfah himself, hence the thought process and methodology was the same as Imām Abū Ḥanīfah [1]
Examples are: Imām Abū Yūsuf, Imām Muḥammad al-Shaybānī and Imām Zufar.
This group of scholars sometimes disagreed with Imām Abu Ḥanīfah. However, their independent opinions are still regarded as being from Imām Abū Ḥanīfah himself for the reasons mentioned below:
a. They were given permission by Imām Abū Ḥanīfah himself to exercise ijtihād and come up with their own conclusions on masā’il
b. Imam Abu Ḥanīfah himself supervised the fiqh-discussions, and approved of their opinions being recorded alongside his own
Hence, their conclusions are considered independent opinions within the madhhab of Imām Abū Ḥanīfah himself.
Note: The rulings transmitted from these two groups of fuqahā’ form the foundation of the madhhab of Imām Abū Ḥanīfah. All later developments can be traced back to this pool of juristic opinions. Independent opinions and preferences from later fuqahā’ belonging to the madhhab were either accepted as part of the madhhab or rejected based on their faithfulness to this source.
3. Mujtahid muṭlaq muntasib (affiliated absolute mujtahid) not from the students of Imām Abū Ḥanīfah
This is a group of later scholars that belonged to the madhhab of Imām Abū Ḥanīfah, but because they had absolute and independent command over the nuṣūṣ of Sharī‘ah, they at times differed with the madhhab, and were at liberty to do so. They affiliated themselves to the madhhab of Imām Abū Ḥanīfah for the same two reasons mentioned in the previous category.
An example is: Imām al-Ṭaḥāwī.
Their activity can be divided into two categories:
a. Tarjīḥ (determining the preponderant or stronger view) between the various views transmitted from Imām Abū Hanīfah and his direct students; takhrīj (deducing) and tafrī‘ (extracting) of new issues based on the masā’il that were transmitted; and explaining the quyūd (qualifications), sharā’iṭ (conditions) and ‘ilal (legal causes) of the transmitted masā’il.
b. Consciously leaving the view of the madhhab on a small number of issues for their own ijtihādī preferences.
Their tarjīḥ, takhrīj and explanations of the transmitted masā’il carry weight in the madhhab, and are considered to be part of the madhhab.
But their personal preferences in conflict with the madhhab are not regarded as being from the madhhab of Imām Abū Ḥanīfah.
4. Mujtahid muqayyad (restricted mujtahid) or mujtahid fi al-madhhab (mujtahid in the madhhab)
This group did not have full command over the nuṣūṣ of Sharī‘ah and were not entirely independent in deriving rulings from them. Hence, they were limited to the madhhab, but were able to exercise a degree of ijtihād. Their primary activity was tarjīḥ between the transmitted masā’il, takhrīj of new masā’il, and explaining the quyūd, sharā’iṭ and ‘ilal of the transmitted masā’il. All of these are considered authoritative in the madhhab of Imām Abū Ḥanīfah.
Examples of this category are: Faqīh Abu al-Layth, al-Qudūrī, al-Ḥulwānī, al-Sarakhsī, al-Ṣadr al-Shahīd, al-Marghīnānī, al-Kāsānī, Qāḍī Khān, al-Nasafī and al-Maḥbūbī. The fuqahā’ belonging to this category are of various ranks in terms of their level of ijtihād, but all of them have the authority to carry out the activity mentioned above.
Qāsim ibn Quṭlūbughā (d. 879 H), a high-ranked faqīh of the madhhab, said (Sharḥ ‘Uqūd Rasm al-Muftī, Maktabat al-Buhsrā, p. 41):
المجتهدون لم يفقدوا حتى نظروا فى المختلف ورجحوا وصححوا
“The mujtahids (capable of tarjīḥ) did not come to an end until they inspected the issues in which there is disagreement, and made tarjīḥ and taṣḥīḥ.”
Note: Although uncommon, sometimes individuals from this group made ijtihād and left the madhhab. This was permissible for them as individuals (to a more limited capacity than the previous group), but like the independent conclusions of the previous group, these opinions have no consideration in the madhhab.
Regarding this, Imām Qāsim Ibn Quṭlūbughā said about the independent conclusions of his teacher, Ibn al-Humām: “The researches of our teacher that conflict with the madhhab will not be acted upon.”
Ibn Nujaym, a prolific faqīh of the tenth century, said about Ibn al-Humām also (Sharḥ ‘Uqūd Rasm al-Muftī, p. 50):
لنا اتباعه فيما يحققه ويرجحه من الروايات أو الأقوال ما لم يخرج عن المذهب، فإنه له اختيارات خالف فيها المذهب، فلا يتابع عليها كما قاله تلميذه العلامة قاسم “We may follow him in what he explained and did tarjīḥ of from the transmitted views and opinions [as he was capable of tarjīḥ], but only for as long as he does not come out of the madhhab, since he has some personal preferences in which he opposed the madhhab. Hence, he will not be followed in these, as his student ‘Allāmah Qāsim said.”
5. Nāqil (Transmitter)
This is a group of pure muqallids from the fuqahā’. They do not have the ability to assess the evidence, nor exercise tarjīḥ. Their obligation is to follow the Ḥanafī madhhab and the tarjīḥ transmitted from the scholars of tarjīḥ. Their main contribution and activity is:
1. Firstly, to ascertain, based on a thorough study and research of the writings of the earlier mujtahid imāms (belonging to all four of the above categories), which opinions are the preferred and authoritative rulings of the madhhab
2. Secondly, keeping in mind their quyūd, sharā’iṭ and ‘ilal, apply these rulings to specific situations and questions that arise in their times.
Examples of this group include Ibn Nujaym (as stated by Ibn ‘Ābidīn), al-Ḥaṣkafī and Ibn ‘Ābidīn.
Hence, the fuqahā’ of today and of recent times, at most, fall in this last category.
Ibn ‘Ābidīn said (Sharḥ ‘Uqūd Rasm al-Muftī, p. 42):
انقطع المفتي المجتهد في زماننا ولم يبق إلا المقلد المحض “The muftī who is a mujtahid (capable of tarjīḥ) has come to an end in our time, and only pure muqallids (capable only of transmission) remain.”
‘Allāmah Ibrāhīm al-Bīrī (d. 1099 H), the Ḥanafi mufti of Makkah, said about 350 years ago:
ليس للمفتي في زماننا إلا نقل ما صح عن أهل مذهبه الذين يفتي بقولهم “The muftī of our time may only transmit what is authentic from the scholars of his madhhab upon whose views he is passing fatwā.”
He quotes from al-Shurunbulālī (d. 1056) from about 400 years ago who said:
المقلد الذي ليس من أهل الإجتهاد كحنفية زماننا “…the muqallid who is not from the people of ijtihād, like the Ḥanafis of our time…”
Ibn ‘Ābidīn said (Sharḥ ‘Uqūd Rasm al-Muftī, p. 45):
المشايخ اطلعوا على دليل الإمام وعرفوا من أين قال واطلعوا على دليل أصحابه فيرجحون تارة دليل أصحابه على دليله فيفتون به...وحيث لم نكن أهلا للنظر فى الدليل ولم نصل إلى رتبتهم في حصول شرائط التفريع والتأصيل، فعلينا حكاية ما يقولونه لأنهم هم أتباع المذهب الذين نصبوا أنفسهم لتقريره وتحريره باجتهادهم “The mashāyikh inspected the evidences of Imām [Abū Ḥanīfah] and had recognition of the sources of his views, and they inspected the evidences of his disciples. Thus, at times they gave tarjīḥ to the evidence of his disciples over his evidence and thus gave fatwā on it…Since we are not capable of inspecting the evidence, and we have not reached their rank in fulfilling the preconditions for extracting [new masā’il] and finding patterns [in the transmitted masā’il], we must relate what they opined, because they are the [true] followers of the madhhab, who erected themselves to explain it and to refine it using their ijtihād.”
Hence, scholars or muftīs belonging to the Ḥanafi madhhab today are limited to views which the mujtahids of the madhhab (belonging to the third and fourth categories mentioned above) gave tarjīḥ to. They are not at liberty to leave the established view of the madhhab based on their inspection of the evidence and based on their personal opinion that another view is stronger, as they are not qualified to do this. Rather, they are bound by the rule Imām al-Ghazālī laid down almost a thousand years ago:
“As for the [muftī] who has not attained the rank of ijtihād – which is the position of all [i.e. most of] the people of today – and he only issues fatwā in that which he is asked by transmitting from the position of his imām, if his madhhab appears to him to be weak, it is not permissible for him to leave it…And whatever is difficult for him, it is necessary for him to say: ‘Maybe the founder of my madhhab has an answer to it, as I have no independent ijtihād in the source of Sharī‘ah.’” (Ihyā’ ‘Ulūm al-Dīn, Dār al-Minhāj, 1:162)
Putting this principle in practice, one of the recent elders of Deoband, Muftī Rashīd Aḥmad al-Ludhyānwī, a faqīh and muḥaddith (who taught Saḥīḥ al-Bukhārī over 20 times), says regarding an issue in which the opinion of Imām Abū Ḥanīfah (and the Ḥanafī madhhab) apparently seemed to go against a ḥadīth:
“In short, this issue still requires more investigation. Nevertheless, our fatwā and practice will remain in accordance with the verdict of Imām [Abū Ḥanīfah], may Allāh have mercy on him. This is because we are muqallids of Imām [Abū Ḥanīfah], may Allāh have mercy on him. For a muqallid, the verdict of the imām is a proof, not the four evidences [of Sharī‘ah i.e. Qur’ān, Sunnah, Ijmā‘ and Qiyās], since adducing proof from them is the job of a mujtahid.” (Aḥsan al-Fatāwā, 2:152)
One may ask: Then why do we have books that detail the evidences of our madhhab, like Naṣb al-Rāyah, al-Jawhar al-Naqī and I‘lā’ al-Sunan, and why do we then study the evidences of the madhhab? Some of the reasons are as follows:
1. To build confidence in our madhhab
2. To answer and refute opponents who claim the rulings of the madhhab are completely baseless
3. When there are conflicting tarjīḥs and taṣḥīḥs from the mujtahids of the madhhab, and we have no way of knowing which is the rājiḥ from the mujtahid scholars, it will be valid in this case to turn to the evidence.
4. To find solutions to new issues: this may be supported by looking at the evidences of the madhhab, and not just the transmitted rulings. These last two activities should ideally be done collectively by well-trained scholars.
In short, the academic discussion of the evidences in our times is not an exercise in ijtihād to override the established position of the madhhab in the situation that one believes another opinion is stronger.
Note: One exception to the above rule – of staying faithful to the rulings transmitted from Imām Abū Ḥanīfah and his direct disciples – is the situation that, because of extreme difficulty or hardship in acting on the view of the madhhab i.e. ḍarūrah, the mujtahids of the madhhab, or later scholars, gave preference to a view outside the madhhab. As this is an exception to the general rule, it has been left out in the above discussion.
[1] المجتهد المنتسب مجتهد مطلق ولكنه ينسب إلى المجتهد المجتهد لسلوكه طريقه فى الإجتهاد...المجتهد المنتسب إنما ينسب إلى مجتهد مستقل لأن اجتهاده وافق اجتهاد من انتسب إليه في معظم المسائل...المجتهد المنتسب يقلد من انتسب إليه في أوجه الإستنباط الأساسية مثل حجية المرسل وعدمها... (أصول الإفتاء وآدابه، ص٩٦-٩٩
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Post by Zameel on Nov 3, 2015 7:17:21 GMT
Somebody has offered a response to the above article, but the response contains many irrelevant side-issues. Hence, rather than answering it directly, I will present some answers in a short Q and A format. Brief answers are presented to six questions that someone may have, having read the above article. 1) Are these rankings of the fuqahā’ disputed?There is no dispute that the fuqahā’ have different ranks, some having the ability of absolute ijtihād, some limited ijtihād and some no ijtihād at all. There was, however, some dispute over how to rank some of the fuqahā’ of the past into fixed categories. The above categorisation was made taking into account the detailed discussions on the rankings of the fuqahā’ by Marjānī, Laknawī and Ibn ‘Ābidin. Some have divided the fuqahā’ belonging to category 4, specifically, into further subdivisions, but for all practical purposes, they can be grouped together in the same broad category. 2) Are these rankings only relevant in the framework of “taqlīd shakhṣī” (making taqlīd of one specific mujtahid imām and his madhhab)?Yes. If unrestricted taqlīd was permitted, all opinions of mujtahid jurists would be fair game. There would be no need for tarjīḥ and one of the primary objectives of Shari'ah, which is taklīf, will be defeated. For more detail, the following links can be visited: ahlussunnah.boards.net/thread/379/brief-explanation-on-necessity-madhabahlussunnah.boards.net/thread/374/al-sh-ib-on-madhhab3) Who are the mujtahids and who are the muqallids in the above rankings?The first four categories are mujtahids, the first three absolute/independent mujtahids, and the fourth (those sometimes known as "mashāyikh"), mujtahids of a limited kind. The last category is a "pure muqallid". Ibn ‘Ābidin makes it clear that this last category cannot inspect the evidence and can only transmit the madhhab position. 4) How does a Ḥanafī jurist from the fifth category determine the fatwā position of the madhhab?This has been explained in works dealing with uṣūl al-iftā’, famously Ibn ‘Ābidin's Sharḥ ‘Uqūd Rasm al-Muftī, which gathers the basic principles on this from the earlier fuqahā’. In principle, one finds what the mujtahids in the madhhab gave preference to from the views of Imām Abu Ḥanifah and his disciples. When they differed in their preference, or no preference has been transmitted from them, other criteria have been explained by the mujtahid jurists themselves to determine which is the fatwā position of the madhhab (when there is disagreement amongst the founding imāms or different opinions are transmitted from them). 5) How do we deal with personal views of some Ḥanafi jurists that fall outside the madhhab?This has been explained in the above article. Imam al-Ṭaḥāwi, for example, would list the opinions of Imām Abu Ḥanifah and his students, and mention which he prefers. His weighing up of the different views of the founding imāms is of great importance and value in the madhhab. However, at times, due to his personal ijtihād, he consciously left the madhhab, and adopted his own view. An example is his view on the lizard, which is ḥarām according to all the founding imāms but permissible according to al-Ṭaḥāwī, as he mentions in his Mukhtaṣar. Another example is his view mentioned in Sharḥ Mushkil al-Āthar that a ṭalāq issued in an intoxicated state is invalid, while he relates from the founders of the madhhab that it is valid. His personal opinions in conflict with the madhhab were not taken into consideration by the later fuqahā’ of the madhhab, and were not considered as part of the madhhab. If this was the case with an absolute and independent mujtahid of the calibre of al-Ṭaḥāwī, there is greater reason for adopting this methodology with those of much lower rank than him, like Ibn al-Humām and some of the senior scholars of Deoband from recent times. 6) Are you not making the madhhab very rigid?Some rules of Sharī‘ah are immutable and unchanging. Other rules change based on context. The madhhab is not merely a fixed set of unchanging laws. Rather, these laws come with a detailed explanation of their qualifications, conditions and legal causes. Based on this surrounding explanation, and the correct application of them, it will be found that there is a lot of flexibility in the madhhab, and room for investigation and debate.
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Post by Zameel on Nov 20, 2015 9:27:53 GMT
Further Clarity on the Structure of the Ḥanafī Madhhab
For more clarity on the structure of the Ḥanafī madhhab, the following is a brief overview: 1. Ḥanafīs are muqallids of Imām Abū Ḥanīfah and his prominent students, particularly: Imām Abū Yūsuf, Imām Muḥammad ibn al-Ḥasan al-Shaybānī, Imām Zufar ibn al-Hudhayl and Imām al-Ḥasan ibn Ziyād. When there is consensus in the transmitted views of these imāms, no conflicting view will be considered. When there is a multiplicity of views, it is not permissible to simply select any view at random or based on personal preference. Some legitimate form of assessment ( naẓar) and tarjīḥ is necessary. This is based on the consensus of the scholars. [1] So it follows that: 2. The mujtahid jurists belonging to the Ḥanafī madhhab will determine which is the sounder view amongst the various opinions transmitted from Imām Abū Ḥanīfah and his prominent students using their own ijtihād and assessment of the evidences and circumstances. 3. The non-mujtahid jurists belonging to the Ḥanafī madhhab are bound to follow what the mujtahid jurists determined as the stronger view. Any opinion in conflict with a view on which there is consensus between Imām Abū Ḥanīfah and his prominent students is not regarded as being part of the madhhab – with one exception: When the madhhab’s position(s) is, for all practical purposes, no longer sustainable, then due to dire need ( ḍarūrah), a weaker view can be resorted to. The underlying basis for the first point is that the views of the prominent students of Imām Abū Ḥanīfah are regarded as a direct extension of the views of Imām Abū Ḥanīfah himself. Some reasons for this were mentioned in the opening post, and scholars of the madhhab have detailed discussions on why this is. One scholar even wrote an entire book on this topic: al-Jawāb al-Sharīf li l-Ḥadrat al-Sharīfah fi Anna Madhhab Abī Yūsuf wa Muḥammad huwa Madhhab Abī Ḥanīfah by Shaykh ‘Abd al-Ghanī al-Nābulsī. The second and third points are logical consequences of the necessity of naẓar and tarjīḥ, and the fact that mujtahids do this by assessing the evidence, and non-mujtahids do this by following the assessment and conclusions of the mujtahid jurists. This basic structure of the Ḥanafī madhhab can be appreciated by taking a holistic look at the madhhab’s development: The views of Imām Abū Ḥanīfah and his prominent students are recorded alongside each other right from the outset; and then there is a systematic assessment of these views and extrapolations ( takhrīj, tafrī‘) from them by the succeeding mujtahid jurists; and any view in conflict with the consensus opinion of Imām Abū Ḥanīfah and his prominent students was not regarded as part of the madhhab (except in cases of ḍarūrah). Moreover, this structure of the madhhab was clearly articulated by some of the prominent jurists of the madhhab at least from as early as the beginning of the sixth century (of Hijrah) and onwards. The claim of a certain individual writing online that it originated in the ninth century in the mind of ‘Allāmah Qāsim ibn Quṭlūbughā and then later popularised by Ibn ‘Ābidīn is, therefore, mistaken. ‘Allāmah Qāsim ibn Quṭlūbughā and Ibn ‘Ābidīn were merely reiterating what the earlier jurists had stated (which is plain to see by even a cursory look at their writings); and the earlier jurists were only making an explicit reference to the natural and logical progression of the madhhab, which is implicitly found in the very earliest of works on the madhhab. Here are some statements of the earlier jurists: Burhān al-A’immah Ḥusām al-Dīn ‘Umar ibn ‘Abd al-‘Azīz ibn Māzah al-Bukhārī, known famously as al-Ṣadr al-Shahīd, born in 483 H and died in 536 H, teacher of many of the great scholars of the madhhab including the author of al-Hidāyah, said: لا بد من معرفة المذهب في فصلين: أحدهما: أنه إذا اتفق أصحابنا في شيء: أبو حنيفة وأبو يوسف ومحمد رحمهم الله، والثاني: إذا اختلفوا فيما بينهم. أما الأول: فلا يسع القاضي أن يخالفهم برأيه، لأن الحق لا يعدوهم، فإن أبا يوسف كان صاحب حديث...وكان صاحب فقه ومعنى أيضا، ومحمد كان صاحب قريحة وصاحب فقه ومعنى...وكذا مهديا ومقدما في معرفة اللغة والإعراب وله معرفة بالأحاديث أيضا، وأبو حنيفة كان مقدما في ذلك كله...وأما الثاني...فإن كان القاضي من أهل الاجتهاد والنظر يتخير في ذلك، فإن لم يكن من أهل الاجتهاد والنظر يستفت غيره “It is necessary to recognise the madhhab in two areas: The first is when our founders, Abū Ḥanīfah, Abū Yūsuf and Muḥammad agreed on something, and the second is when they differed amongst themselves. Regarding the first, a Qāḍī may not disagree with them based on his personal opinion because the truth [for a mujtahid belonging to the Ḥanafī madhhab] does not surpass them…Regarding the second…then if the Qāḍī is qualified for ijtihād and assessment, he will make a decision in that [exercising his ijtihād], and if he is not qualified for ijtihād and assessment, he will ask someone else [what is the stronger view].” ( Sharḥ Adab al-Qāḍī, pp. 190 – 192) Fakhr al-Dīn al-Ḥasan ibn Manṣūr al-Ūzjandī, known famously as QāḍīKhān (d. 592 H), one of the great mujtahid jurists of the madhhab, reiterated this in his famous collection of Fatāwā: المفتي في زماننا من أصحابنا إذا استفتي في مسألة وسئل عن واقعة: إن كانت المسألة مروية عن أصحابنا فى الروايات الظاهرة بلا خلاف بينهم فإنه يميل إليهم ويفتي بقولهم، ولا يخالفهم برأيه، وإن كان مجتهدا متقنا، لأن الظاهر أن يكون الحق مع أصحابنا ولا يعدوهم، واجتهاده لا يبلغ اجتهادهم، ولا ينظر إلى قول من خالفهم ولا يقبل حجته لأنهم عرفوا الأدلة وميزوا بين ما صح وثبت وبين ضده؛ وإن كانت المسألة مختلفا فيها...يخير المفتي المجتهد ويعمل بما أفضى إليه رأيه “The muftī in our time from our [Ḥanafī] companions, when he is asked about an issue: if the issue is transmitted from our founders in authentic transmissions without any disagreement between them, he will tend towards them and give fatwā on their [unanimous] view, and will not disagree with them based on his personal opinion, even if he is a skilled mujtahid [in the madhhab], because it is apparent that the truth is with our founders and does not surpass them, and his ijtihād does not reach their [collective] ijtihād. And he will not consider the view of one who disagreed with their [consensus] and will not accept his proofs, because they were aware of the proofs and differentiated between what is authentic and sound and between its opposite. And if the issue is differed upon…the muftī who is a mujtahid will be compelled to make a decision and act on what his ijtihād leads him to.” ( Fatāwā QāḍīKhān, 1:9; al-Taṣḥīḥ wa l-Tarjīḥ, p. 125) This is reiterated in al-Muḥīṭ al-Burhānī of Burhān al-Dīn Maḥmūd Ibn Māzah al-Bukhārī (d. 616) ( al-Muḥīṭ al-Burhānī, Idārat al-Qur’ān, 12:154-5). Imām ‘Abd al-Raḥīm ibn Abī Bakr al-Marghīnānī, the son (or grandson) of the author of al-Hidāyah, said in his work al-Fuṣūl al-‘Imādiyyah: وإن لم يكن من أهل الاجتهاد لا يحل له أن يفتي إلا بطريق الحكاية، فيحكي ما يحفظه من أقوال الفقهاء “If he is not qualified for ijtihād, it is not permissible for him to give fatwā except by relating [what the mujtahid jurists said].” ( al-Fatāwā al-Hindiyyah) Summarising, ‘Allāmah Qāsim ibn Quṭlūbughā says: إن المجتهدين لم يفقدوا حتى نظروا فى المختلف ورجحوا وصححوا....وترجيحاتهم وتصحيحاتهم باقية، فعلينا اتباع الراجح والعمل به
“The mujtahids [of the madhhab] did not come to an end until they inspected the issues in which there is disagreement [amongst the founders of the madhhab], and they determined the stronger and sounder views…Their identification of the stronger and sounder views are available, so we must follow the stronger view [as transmitted to us from them] and act on it.” (al-Taṣḥīḥ wa l-Tarjīḥ, p. 131) And ‘Allāmah Ibn ‘Ābidīn al-Shāmī said: المشايخ اطلعوا على دليل الإمام وعرفوا من أين قال واطلعوا على دليل أصحابه فيرجحون تارة دليل أصحابه على دليله فيفتون به...وحيث لم نكن أهلا للنظر فى الدليل ولم نصل إلى رتبتهم في حصول شرائط التفريع والتأصيل، فعلينا حكاية ما يقولونه لأنهم هم أتباع المذهب الذين نصبوا أنفسهم لتقريره وتحريره باجتهادهم “The mashāyikh [i.e. the mujtahids of the madhhab] inspected the evidences of Imām [Abū Ḥanīfah] and had recognition of the sources of his views, and they inspected the evidences of his disciples. Thus, at times they gave preference to the evidence of his disciples over his evidence and thus gave fatwā on it…Since we are not capable of inspecting the evidence, and we have not reached their rank in fulfilling the preconditions for extracting [new masā’il] and laying down principles [based on the transmitted masā’il], we must relate what they opined, because they are the [true] followers of the madhhab, who erected themselves to explain it and to refine it using their ijtihād.” Other aspects related to the structure of the madhhab and the protocols of giving fatwā can be found in small sections of earlier works like al-Fatāwā al-Sirājiyyah of Sirāj al-Dīn al-Ūshī (d. 569 H), al-Ḥāwī al-Qudsī of Jamāl al-Dīn al-Ghaznawī (d. 593 H), Munyat al-Muftī of Yūsuf ibn Abī Sa‘īd al-Sijistānī (d. c. 638H) and al-Muḍmarāt of Yūsuf ibn ‘Umar al-Kādūrī (d. c. 700 H); and later works like Khizānat al-Riwāyāt, ‘Umdatu Dhawi l-Abṣār and al-Ṭirāz al-Mudhhab; and most of this material was compiled, and expanded on, in Ibn ‘Ābidīn’s famous treatise, Sharḥ ‘Uqūd Rasm al-Muftī. (See: Asbāb ‘Udūl al-Ḥanafiyyah ‘an al-Futyā bi Ẓāhir al-Riwāyah, pp. 109-151) It is incorrect to presume, therefore, that Ibn ‘Ābidīn invented the whole field of the protocols of fatwā and the structure of the Ḥanafī madhhab. His work is essentially a compilation of what the earlier fuqahā’ of the madhhab stated. [1] واعلم أن من يكتفي بأن يكون في فتياه أو عمله موافقا لقول أو وجه فى المسألة، ويعمل بما شاء من الأقوال أو الوجوه، من غير نظر فى الترجيح، ولا يقيد به، فقد جهل وخرق الإجماع (أدب المفتي والمستفتي لابن الصلاح، دار المعرفة، ص٦٣) الواجب على من أراد أن يعمل لنفسه أو يفتي غيره أن يتبع القول الذي رحجه علماء مذهبه، فلا يجوز له العمل أو الإفتاء بالمرجوح إلا في بعض المواضع كما سيأتي فى النظم، وقد نقلوا الإجماع في ذلك، ففى الفتاوى الكبرى 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، وهذا لا خلاف فيه. وسبقه إلى حكاية الإجماع فيهما ابن الصلاح (شرح عقود رسم المفتي، مكتبة البشرى، ص٨)
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Post by Zameel on Nov 21, 2015 20:21:05 GMT
The views of the prominent students of Imām Abū Ḥanīfah are regarded as a direct extension of the views of Imām Abū Ḥanīfah himself. Some reasons for this were mentioned in the opening post, and scholars of the madhhab have detailed discussions on why this is. Why would a person belonging to the madhhab of Imām Abū Ḥanīfah follow the view/s of his students, like Imām Abū Yūsuf, Imām Muḥammad and Imām Zufar? Why are not the views of the latter that conflict with the opinions of Imām Abū Ḥanīfah treated as opinions outside of the madhhab, just like the opinions of Imām al-Shāfi‘ī, Imām Mālik etc.; especially when we consider that these students were independent mujtahids in the same category as Imām al-Shāfi‘ī, Imām Mālik etc.? This is one of the important and vexing questions that the scholars of the madhhab had to explain. The first question was: are the opinions of the students of Imām Abū Ḥanīfah considered as part of the madhhab of Imām Abū Ḥanīfah to begin with? A minority opinion held that they are, in fact, not, and are treated just like the opinions of Imām al-Shāfi‘ī, Imām Mālik etc. Ibn Nujaym famously supported this view, followed in recent times by Aḥmad Riḍā Khān Barelwī and Sā’id Bakdāsh. They argue that a Ḥanafī will only follow the views of the students of Imām Abū Ḥanīfah (if they conflict with the opinion of Imām Abū Ḥanīfah) in the same extreme circumstances in which the views of other imāms are adopted; i.e. in cases of dire need ( ḍarūrah). The vast majority, however, regarded the opinions of Imām Abū Ḥanīfah's students as being one and the same as the madhhab of Imām Abū Ḥanīfah. Of course, this does not mean that their opinions are identical to the opinions of Imām Abū Ḥanīfah, but that the views expressed by them share such a close connection with Imām Abū Ḥanīfah, that they can in some way be attributed directly to him. This view is supported by the fact that the opinions of the students of Imām Abū Ḥanīfah were recorded alongside his own views by his permission; and thereafter, the scholars of the madhhab treated their opinions as one and the same as the madhhab of Imām Abū Ḥanīfah – at times preferring their view on the weight of evidence, rather than necessity or circumstance. It is also supported by the explicit statements of some of the early jurists, like those mentioned in the above post. Now, what is this “close connection” that the views of Imām Abū Ḥanīfah’s students share with Imām Abū Ḥanīfah, due to which their opinions can be attributed directly to him? Good discussions on this can be found in Uṣūl al-Iftā’ wa Ādābuh (pp. 168 – 72) of Muftī Taqī ‘Uthmānī, Asbāb ‘Udūl al-Ḥanafiyyah ‘an al-Futyā bi Ẓāhir al-Riwāyah (pp. 101-3) of Lu’ayy al-Khalīlī and Sharḥ ‘Uqūd Rasm al-Muftī (pp. 33-4) of Ibn ‘Ābidīn. The first two sources rely mainly on the discussion of al-Kawtharī in his Ḥusn al-Taqāḍī. What they amount to is that Imām Abū Ḥanīfah instigated and supervised the fiqh-discussions, opening up different possible answers to specific issues, and he gave his direct students permission to let their ijtihād freely select any one of these possible solutions; and then whatever his ijtihād eventually settled on would be recorded alongside what their ijtihād eventually settled on – which were, in actual fact, initially instigated directly by Imām Abū Ḥanīfah himself. There are a number of explicit reports and narrations that support this narrative. Thus, in a very direct way, the opinions of the mujtahid students of Imām Abū Ḥanīfah can, and are, regarded as one and the same as his own madhhab.
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Post by Zameel on Nov 28, 2015 16:59:11 GMT
Ḥanafī Muftīs Today are Transmitters & not Capable of Tarjīḥ
Hence, the fuqahā’ of today and of recent times, at most, fall in this last category.
Ibn ‘Ābidīn said (Sharḥ ‘Uqūd Rasm al-Muftī, p. 42):
انقطع المفتي المجتهد في زماننا ولم يبق إلا المقلد المحض “The muftī who is a mujtahid (capable of tarjīḥ) has come to an end in our time, and only pure muqallids (capable only of transmission) remain.”
‘Allāmah Ibrāhīm al-Bīrī (d. 1099 H), the Ḥanafi mufti of Makkah, said about 350 years ago:
ليس للمفتي في زماننا إلا نقل ما صح عن أهل مذهبه الذين يفتي بقولهم “The muftī of our time may only transmit what is authentic from the scholars of his madhhab upon whose views he is passing fatwā.”
He quotes from al-Shurunbulālī (d. 1056) from about 400 years ago who said:
المقلد الذي ليس من أهل الإجتهاد كحنفية زماننا “…the muqallid who is not from the people of ijtihād, like the Ḥanafis of our time…”
The following is a statement of Amīn al-Dīn Muḥammad ibn ‘Abd al-‘Āl (d. 971 H), confirming that the “muftīs” of the latter period are not true muftīs, but transmitters. Amīn al-Dīn Muḥammad ibn ‘Abd al-‘Āl was a great Egyptian Ḥanafi scholar who was a contemporary of Ibn Nujaym al-Miṣrī, and like him, one of the teachers of al-Tumurtāshī (d. 1007 H), author of Tanwīr al-Abṣār. The latter refers to Amīn al-Dīn as: مولانا شيخ الإسلام أمين الدين بن عبد العال مفتي الحنفية بالديار المصرية “Mawlānā Shaykh al-Islām Amīn al-Dīn ibn ‘Abd al-‘Āl, the muftī of the Ḥanafīs in the Egyptian lands.” (Ibn ‘Ābidīn quotes it from his Minaḥ al-Ghaffār in Minḥat al-Khāliq on the margins of al-Baḥr al-Rā’iq, 5:135) Ibn ‘Ābidīn quotes from his fatāwā as follows: والمراد بالمفتي الذي يتخير بين الأقوال هو المجتهد الذي له قوة نظر واستنباط، وأما أهل زماننا وأشياخهم وأشياخ أشياخهم فلا يسمون مفتين بل ناقلون حاكون، هذا ما رأيت عليه مشايخنا كمولانا الشيخ برهان الدين الكركي ومولانا الشيخ عبد البر ابن الشحنة والشيخ محب الدين بن شرباش ومن شاكلهم (مجموعة رسائل ابن عابدين، ج١ ص٣٣٠ “The intent of the muftī who [with his ijtihād] selects between the [conflicting] views [of the imāms of the madhhab] is: a mujtahid who has the ability to inspect [the evidence] and derive [rulings directly from the sources of Sharī‘ah]. “ As for the people of our time, and their teachers, and the teachers of their teachers, they are not referred to as [true] muftīs [in this sense], but rather as transmitters and those who relay [what the earlier mujtahids of the madhhab identified as the stronger views]. This is what I found our teachers to be upon, like Mawlānā Shaykh Burhān al-Dīn [Ibrāhīm ibn ‘Abd al-Raḥmān] al-Karakī (835 – 922)*, Mawlānā Shaykh ‘Abd al-Barr Ibn al-Shiḥnah (851 – 921 H)**, Shaykh Muḥibb al-Dīn ibn Shirbāsh and those like them.” ( Majmū‘ah Rasā’il Ibn ‘Ābidīn, 1:330) *He attended the lessons of Ibn al-Humām. He was a scholar of many fields, having studied under al-Kāfiyajī, al-Taqī al-Shumunnī and others. He is the author of Fayḍ al-Mawlā al-Karīm ‘alā ‘Ubaydihī Ibrāhīm, in which he collected the reliable positions of the Ḥanafī madhhab. ( La’ālī al-Maḥār, 471-3) He was a contemporary of al-Sakhāwī who wrote a detailed biography of him in his al-Ḍaw’ al-Lāmi‘ (1:59-64), containing much praise of him. ** He was a student of Qāsim ibn Quṭlūbughā, al-Kāfiyajī and al-Shummunī. He authored many works, famous amongst them a commentary on al-Manẓūmat al-Wahbāniyyah. ( La’ālī al-Maḥār, 301-3) He should not be confused with his grandfather, also a famous Ḥanafī jurist known as “Ibn al-Shiḥnah” (749 – 815). The latter was one of the teachers of Ibn al-Humām.
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Post by ImāmShātibī on Jan 21, 2016 12:48:56 GMT
This may have already been answered but ill ask anyway,
If those people issuing fatwās are mere transmitters, then how are new problems to be solved, because the transmitter does not have the ability to go beyond what is already present?
And
If new problems cannot be solved then what is the qualification of people who are giving solutions for all kinds of problems, beginning with Islamic laws given by states and ending with Islamic banking, and other similar modern issues under titles like jadīd fiqhī masā’il?
Jazakallah Khayra
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Post by Zameel on Feb 1, 2016 15:19:30 GMT
Contemporary masā'il can be grouped into two categories.
Some demand a new application of the law, which still falls within the purview of naql. This is known as "taḥqīq al-manāṭ." Most masā'il which we regard as "contemporary" fall under this category. For example, the presence of synthetically produced alcohol in many products. This is a new issue, but requires only an application of a known law - known through naql. In fact, everyone must engage in taḥqīq al-manāṭ, even laymen. For example, if a layperson suffers a cut, how will he determine whether the blood is "flowing downwards" and hence breaks his wuḍū’ or is not "flowing downwards" and thus does not break his wuḍū’? He will do so by observation and exercising his judgement. This is "taḥqīq al-manāṭ", and does not require looking into the evidence or breaking away from the naql, but merely applying what is known through naql to different situations. This is the response required in many contemporary masā'il: apply what is manqūl (the authoritative transmitted position of the madhhab) to new situations.
And other masā'il are completely new. Here, due to necessity, a degree of true ijtihād must be exercised, ideally by a group of highly qualified scholars. They will look at similar cases (naẓā’ir) found in the madhhab as well as the evidences to give a ruling. This is only in the situation that no naql can apply directly to the new situation. E.g. a surrogate mother gives birth to the biological child of a couple, who will be the legal (shar'ī) parents of that child, the surrogate mother and her husband, or the biological parents? This has implications for ḥijāb, mīrāth etc. and is a new issue.
But one will notice that in neither case is fatwā given against the established position of the madhhab. The first case is a matter of correctly applying "the established position of the madhhab". And the second case is a matter of trying to find what would be the opinion of the imāms of the madhhab in a given situation on which there is no naql.
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Post by Zameel on Jul 7, 2016 14:36:32 GMT
The Akābir of Deoband’s Policy Towards Tafarrudāt (Views in Conflict with the Ḥanafī madhhab)Shaykh al-Islām Mawlānā Ḥusayn Aḥmad Madanī (1296 – 1377 H) describes the policy of the Akābir of Deoband towards opinions of the seniors in conflict with the Ḥanafī madhhab. When asked about the opinions of Shāh Ismā‘īl Shahīd which apparently conflict with the Ḥanafī madhhab, he wrote: ہمارے اكابر فقط امام صاحب كى فقه كے مقلد ہيں، دوسرے كے اقوال كو مرجوح سمجهتے ہيں باطل نہيں كہتے، اور نہ اس پر عمل در آمد كرتے ہيں – حضرت شاه ولي الله صاحب دهلوي قدس الله سره العزيز كو جو سلسلہ كے بہت بڑے امام اور حضرت شاه محمد اسماعيل صاحب رح كے استاذ الاساتذه اور جد بزرگوار ہيں امام ابو حنيفه كے مقابلہ ميں مطاع قرار نہيں ديتے – حجة الله البالغہ كى جلد ثاني ميں شاه صاحب رح نے بہت سے مسائل ميں خلاف فرمايا ہے، ہم ان پر نہ فتوى ديتے ہيں اور نہ عمل كرتے ہيں، اور بحمد الله ہمارے پاس ان مسائل فرعيہ كے جوابات بهي مكمل طورپر موجود ہيں
اور اسى طرح محقق العصر علامہ ابن ہمام رح وغيره دوسرے اكابر كے تفردات كو بهي ہم معمول بہا نہيں قرار ديتے، اور يہى مسلک ہم نے اسلاف كرام سے پايا ہے – جب حضرت شاه ولي اللہ صاحب رح جو كہ سيد الطائفة اور حضرت شاه اسماعيل صاحب رح كے روحاني اور نسبى بڑے ہيں ان كے اقوال اور فتاوى كے ساته ہمارا يہ طرز ہے تو حضرت شاه اسماعيل صاحب رح كے وہ اقوال جو كہ خلاف فقه حنفي ہوں گے ہمارے نزديک كس طرح قابل عمل ہوگا؟
اس لئے ايضاح الحق الصريح ميں اگر كوئى مسئلہ خلاف فقه حنفي مذكور ہو تو وہ بهى ہمارے اساتذه كے نزديک غير معمول بہ ہوگا – نہ اس پر فتوى ديا جائيگا اور نہ اس پر عمل كيا جائيگا
پس كتاب مذكور اگر حسب رائے آنجناب حضرت شاه اسماعيل صاحب شهيد رح كى نہ ہو جيسا كہ غير مقلدين كے تصرفات كو دوسرى كتابوں كے متعلق نواب قطب الدين صاحب مرحوم سے حضرت شيخ الهند رحمة الله عليه نے نقل فرماياتها تو كچه تعجب نہيں ہے – اور اگر ان كى ہى ہو تو يقينا ہمارے اسلاف كرام يہاں ان مسائل ميں جو كہ فقه حنفي كے خلاف ہيں غير معمول به ہو گي
اس سے شاه صاحب مرحوم كے احترام ميں كوئى خلل نہيں پڑتا جيسا كہ حضرت شاه ولي الله صاحب رح كے ان اقوال كے نہ ماننے سے جو كہ حجة الله البالغة كے جلد ثاني ميں خلاف حنفيہ مذكور ہيں فرق ان كے احترام ميں نہيں پڑتا ہے
(فتاوى شيخ الاسلام، ص١٤-١٥) “Our Akābir are muqallids only of the Fiqh of Imām (Abū Ḥanīfah) Ṣāḥib. They regard the opinions of the other [imāms] as weak, not invalid. Nor do they allow acting upon them. They do not validate following Ḥaḍrat Shāh Walīullāh Ṣāḥib Dehlawī (may Allāh sanctify his precious soul) – who was a great imām of the tradition, and the teacher of the teachers of Ḥaḍrat Muḥammad Shāh Ismā‘īl Ṣāḥib and his esteemed grandfather – in opposition to Imām Abū Ḥanīfah. In the second volume of Ḥujjatullāh al-Bālighah, Shāh (Walīullāh) Ṣāḥib came out against [the Ḥanafī madhhab] in many issues. We neither give fatwā on them nor do we practice upon them. And, with praise to Allāh, we have thorough responses to these subsidiary issues. “Likewise, we do not regard the tafarrudāt [views in conflict with the Ḥanafī madhhab] of Muḥaqqiq al-‘Aṣr ‘Allāmah Ibn al-Humām (may Allāh have mercy on him) and other seniors to be suitable for practice. This is the methodology we found from (our) noble predecessors. Since this is our approach to the sayings and fatwās of Ḥaḍrat Shāh Walīullāh Ṣāḥib (may Allāh have mercy on him) – who is the leader of this group and is the spiritual and ancestral elder of Ḥaḍrat Shāh Ismā‘īl Ṣāḥib (may Allāh have mercy on him) – then how can the views of Ḥaḍrat Shāh Ismā‘īl Ṣāḥib (may Allāh have mercy on him) which are against Ḥanafī Fiqh possibly be suitable for practice according to us?! “This is why, if any ruling is mentioned in Īḍāḥ al-Ḥaqq al-Ṣarīḥ against Ḥanafī Fiqh, that too will not be suitable for practice according to our teachers. Neither will fatwā be given on it, nor will practice be on it…This does not entail any less respect for Shāh (Ismā‘īl) Ṣāḥib Marḥūm just as not accepting Shāh Walīullāh Ṣāḥib’s (may Allāh have mercy on him) opinions in conflict with the Ḥanafīs, mentioned in the second volume of Ḥujjatullāh al-Bālighah, does not entail any less respect for him.” ( Fatāwā Shaykh al-Islām, Nafīs Publishers, p. 14-15)
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Post by Zameel on Feb 26, 2017 16:41:38 GMT
Mawlānā Murtaḍā Ḥasan Chāndpūrī: ‘Ulamā’ of Deoband Follow Only the Muftā Bihī Positions of the Ḥanafī Madhhab
In refuting the notion that ‘Ulamā’ of Deoband are “Wahhābī Najdīs”, “Lā Madhhabīs” or “Ghayr Muqallids”, Mawlānā Murtaḍā Ḥasan Chāndpūrī (1868 – 1951 CE) [1] refers to some of the works of Mawlānā Qāsim Nānotwī, Mawlānā Rashīd Aḥmad Gangohī and Shaykh al-Hind in defence of the Ḥanafī madhhab. He goes on to clarify that the ‘Ulamā’ of Deoband follow the dominant and reliable positions of the Ḥanafī madhhab: Muslims, we submit publicly that Ḥanafī fiqh is our practice and Ḥanafī beliefs are our beliefs. If our opponents are truthful, they should prove that our fatwās are against the reliable transmissions of the authoritative books of the Ḥanafī madhhab, and any of our beliefs are against the books of beliefs and Kalām. By Allāh’s grace, we are genuine. Our opponents would never be able to prove that our practice and fatwā is opposed to Ḥanafī fiqh or our belief is opposed to Ḥanafī beliefs. If true and faithful, then prove it. If not, Muslims should realise our opponents are untruthful and we are true Ḥanafīs.
But remember that we are muqallids of Imām [Abū Ḥanīfah] Ṣāḥib, may Allāh (Exalted is He) have mercy on him. Any matter, anywhere, from either Imām Ṣāḥib, his disciples or his disciples’ disciples, or from the authors of Fatāwā, Shurūḥ and Mutūn, first establish that any one transmission, opposing [our fatwā or practice], is muftā bihī, and then object. We will inshā Allāh make tawbah at their hands. But the God of the Universe has not created those hands for the Ahl al-Bid‘ah. They are themselves alienated from fiqh. What awareness do they have of fiqh for them to identify someone being in agreement or in opposition [to the correct view]?
If there are two transmissions in any matter, and the taṣḥīḥ differs, and fatwā is given on both, one has scope to act on any one view. Whoever may object, by Allāh’s power and might, no one will be able to show that our practice is of a weak (ḍa‘īf), overridden (marjūḥ) or non-muftā bihī transmission. [2] (al-Khatm ‘alā Lisān al-Khaṣm, 20-21; Majmū‘ah Rasā’il Chāndpūrī, 1:266-7) This treatise, al-Khatm ‘alā Lisān al-Khaṣm, was endorsed and signed by several luminaries from the ‘Ulamā’ of Deoband, including Mawlānā Anwar Shāh Kashmīrī, ‘Allāmah Shabbīr Aḥmad al-‘Uthmānī, Mawlānā I‘zāz ‘Alī Amrohī, Mawlānā Ibrāhīm Balyāwī, Sayyid Aṣghar Ḥusayn and Muftī Muḥammad Shafī‘. [1] He was a contemporary of Mawlānā Ashraf ‘Alī Thānawī, only a few years his junior. He was a sayyid from the descendants of Sayyid ‘Abd al-Qādir al-Jilānī. Thus, he would at times sign his treatises with: “Muḥammad Murtaḍā, the descendent of the Lion of God (ibn Sher Khudā), ‘Alī al-Murtaḍā” (raḍiyallāhu ‘anhu). He was admitted to Dār al-‘Ulūm Deoband in the year 1297 H (1880 CE), where he studied under Mawlānā Ya‘qūb Nānotwī, Shaykh al-Hind, Mawlānā Dhu l-Fiqār and Mawlānā Manfa‘at ‘Alī amongst others. Having completed his studies at Deoband with distinction, he travelled to Gangoh and repeated the Dora Ḥadīth (study of the books of ḥadīth) under Mawlānā Gangohī, and acquired his company. He had a passion for the rational sciences so travelled to Kānpūr and studied advanced texts on the rational sciences under Mawlānā Aḥmad Ḥasan Amrohī. While at Kānpūr, he spent time in the company of Shaykh Faḍl al-Raḥmān Ganjmurādabādī. His father was a renowned ḥakīm of his area, so he returned to his hometown of Chāndpūr in the Bijnor district, and trained as a ḥakīm under his father. During this time, he travelled with his father and brother for his first ḥajj, where he spent time in the company of Ḥājī Imdādullāh al-Makkī. He was a skilled polemicist and debater. He wrote against the Arya Samaj, Qādiyānīs and Barelwīs. In connection with responding to the Qādiyānīs, ‘Allāmah al-Kawtharī referred to him as follows: “the prominent teacher, Mawlānā Sayyid Murtaḍā al-Hindī.” ( Maqālāt al-Kawtharī, al-Maktaba al-Tawfīqiyyah, p. 324) He taught at a couple of madrasas and also took up a teaching post at Dār al-‘Ulūm Deoband for some time. He always felt it necessary to be under the guidance of a spiritual mentor, and hence he took Mawlānā Gangohī as his first guide, followed by Shaykh al-Hind, Mawlānā ‘Abd al-Raḥim Rāipūrī and Mawlānā Muḥammad ‘Alī Mongirī. Eventually, he gave bay‘ah to his contemporary, associate and friend, Mawlānā Ashraf ‘Alī al-Thānawī, from whom he received khilāfah. He lived a life of piety, dhikr and ‘ibādah, and passed away reciting the kalimah out loud. [2] Shaykh al-Hind Mawlānā Maḥmūd Ḥasan al-Deobandī said: “ In rulings of Fiqh, it is necessary to differentiate between the stronger and weaker views, the muftā bihī and the non-muftā bihī. There is no licence for any learned or unlearned person to act on a transmission that accords with his wishes.” ( Juhd al-Muqill, 2:82)
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Post by Zameel on Jul 15, 2017 18:52:44 GMT
Are these rankings only relevant in the framework of “taqlīd shakhṣī” (making taqlīd of one specific mujtahid imām and his madhhab)?Yes. If unrestricted taqlīd was permitted, all opinions of mujtahid jurists would be fair game. There would be no need for tarjīḥ and one of the primary objectives of Shari'ah, which is taklīf, will be defeated. Following One MadhhabThe subject of limiting oneself to a single madhhab is only relevant once the madhhabs had come into existence. In the period of the ṣaḥābah and tābi‘īn, madhhabs – schools of law traceable to individual mujtahids covering most issues of fiqh – did not exist. Hence, it was generally not possible to follow one authority or school in all matters. In this very early period, there was thus no impediment for a layperson to follow different authorities on different issues. Once the madhhabs were codified in written form and spread throughout the Muslim world, a new situation arose that made it fundamentally different to the early period. In this new situation, a consensus emerged, clearly articulated in the fifth and sixth centuries of Hijrah, that it is necessary for a layperson to follow a single madhhab.* The following are statements of three prominent scholars – who were contemporaries that lived in different regions of the Muslim world – quoting consensus: Qāḍī ‘Iyāḍ (476 – 544 H), who was from the western Islāmic lands, said: “Taqlīd of all of [the imāms] will not be possible in most legal cases and the majority of rulings, due to their disagreement being based on different principles on which they premised [their rulings]. And it is not correct for a muqallid to make taqlīd of whosoever he wishes from them based on whim and chance…It is not permissible for him to trespass by consulting those whose madhhab he does not adhere to for fatwā…The consensus of the Muslims in all places of earth has occurred on taqlīd in this fashion.” ( Tartīb al-Madārik, 1:62-3) Imām al-Ghazālī (450 – 505 H), who was from the middle east, said: “Yes, if a Shāfi‘ī sees a Shāfi‘ī drinking nabīdh and marrying without a guardian and [thereafter] engaging in intercourse with his wife, then this requires consideration. The most apparent [view] is that he has [the right of] taking him to task and rebuking [him], since none of the scholars have opined that it is permissible for a mujtahid to act on the dictates of the ijtihād of another, nor that the one whose judgement in taqlīd led him to a man he considers the best of the scholars that it is permissible for him to select the madhhab of another, choosing from the madhhabs the most pleasing of them to him. Rather, it is incumbent on every muqallid to follow his imām in every detail. Thus, his opposition to [his] imām is by agreement of the scholars a condemnable act ( munkar), and he is sinful in opposing [him]…The view of the one who opines that it is permissible for every muqallid to choose from the madhhabs whatever he wishes is not given consideration. Probably it is not authentic that any opiner opined it at all. Hence, this is a view that is not established, and if established, is given no consideration” ( Iḥyā’ ‘Ulūm al-Dīn, Dār al-Minhāj, 4:600-603) Imām al-Shahrastānī (479 – 548 H), who was from the eastern parts of the Muslim world, said: “A layperson must make taqlīd of a mujtahid. His madhhab in what he asks is only the madhhab of the one he asks. This is the original [state]. However, the scholars of both groups [of uṣūl] did not allow a lay Ḥanafī to take except from the madhhab of Abū Ḥanīfah and a lay Shāfi‘ī except from the madhhab of al-Shāfi‘ī, because advocating that a layperson has no madhhab and his madhhab is the madhhab of the one giving him the answer will lead to confusion and chaos. This is why they did not allow it.” ( al-Milal wa l-Niḥal, Dār al-Ma‘rifah, p. 242) The following comment from al-Nawawī also transmits broad agreement amongst the early mujtahids of the Shāfi‘ī madhhab (known as the “Aṣḥāb al-Wujūh”) on this issue: “If is not ascribed [to a madhhab], it is premised on two views, which Ibn Barhān related, in that: Is it necessary for the layperson to adopt a particular madhhab?...The second [view] is it is necessary for him. Abu l-Ḥasan al-Ilkiyā positively asserted it, and this applies to all who have not reached the level of ijtihād from the jurists and the adherents of all sciences. [This is so] in order that he does not collect the dispensations of the madhhabs; as distinguished from the first era when the madhhabs were not codified such that their dispensations may be collected. Based on this, it is necessary for one to strive to choose a specific madhhab he will follow in everything. He may not adopt a madhhab based merely on whim, nor on what he found his forefathers upon. This is the position of the Aṣḥāb.” (Rawḍat al-Ṭālibīn, Dār ‘Ᾱlam al-Kutub, 8:101)
Similarly, Imām al-Māzirī (453 - 536 H) speaks of the earlier imāms of his school giving the same ruling as a safeguard against negative repercussions. He states: “That which I believe of the resolute religion is that it is prohibited to exit the madhhab of Mālik and his companions as a protection against the path [towards negative repercussions]. If this was legalised, a man would say: I will sell one dinar for two dinars because of what was narrated from Ibn ‘Abbās, and then someone will come who will say: I marry a woman and I make her private part lawful without a guardian or witnesses, imitating Abū Hanīfah with respect to the guardian and Mālik with respect to witnesses, and I will marry her for a meager price in imitation of al-Shāfi‘ī. This is the greatest opportunity for disaster. This practice would be severed in earlier times despite the scrupulousness of its people and fear for their honour and religion. So what of when the matter has reached a time wherein its people have fallen short of the conditions of those who came before to such degree that is not hidden to the intelligent? This is a time when it is even more suitable to cut off the substances of laxity in religious matters. …You observe our imāms who would fear Allāh (Great and Glorious is He) exaggerate in condemning laxity in the matter of religion and leaving one madhhab for another madhhab, on account of the corruption it will lead to.” (Fatāwa l-Māzirī, al-Dār al-Tūnisiyyah, p. 151-3)
Al-Ghazālī says that it is not established anyone held the opposing view – that allows shifting from madhhab to madhhab in single issues –, and even if it is, he states the position is “disregarded” i.e. invalid. (Iḥyā’ ‘Ulūm al-Dīn, Dār al-Minhāj, 4:603) Similarly, his teacher, Imām al-Juwaynī (419 – 478 H) argues the opposing view is tantamount to advocating something clearly absurd (bāṭil). (Mughīth al-Khalq, p. 14)
In brief, after the codification and spread of madhhabs in approximately the third and fourth centuries, there emerged a consensus on it being necessary for a non-mujtahid to follow a single madhhab. Thus, the opinion that it is permissible to hop from madhhab to madhhab on different issues was regarded as a rejected and invalid position.**
Moreover, there was a general understanding in the fifth and sixth centuries that mujtahids capable of independently deriving rulings from the Qur’ān and Sunnah were either in short supply or non-existent.
Imām Juwaynī said: “The second stage is when the age is bereft of muftīs reaching the position of mujtahids, but the age will not be empty of transmitters of the correct positions of the past imāms – this scenario almost matches this period and its people.” (Ghiyāth al-Umam, Dār al-Da‘wah, p. 300)
Imām al-Ghazālī said: “As for the [muftī] who has not attained the rank of ijtihād – which is the position of all people today – and he only issues fatwā in that which he is asked by transmitting from the position of his imām, if his madhhab appears to him to be weak, it is not permissible for him to leave it…And whatever is difficult for him, it is necessary for him to say: ‘Maybe the founder of my madhhab has an answer to it, as I have no independent ijtihād in the source of Sharī‘ah.’” (Iḥyā’ ‘Ulūm al-Dīn, Dār al-Minhāj, 1:162)
Qāḍī ‘Iyāḍ said: “Those who have reached this road, which is the road of ijtihād and ruling by it in the Sharī‘ah, are few and fewer than few after the first era and the righteous Salaf and the praiseworthy three generations. Since this is so, it is necessary for the one who has not reached this position from legally responsible individuals (muakkallafīn) to receive what he has been obligated with in terms of the tasks of Sharī‘ah from those who transmit it to him, and make him aware of it, and [who] he depends on in transmission, knowledge and judgement. This is taqlīd, and the rank of the common people, nay most [people], is this.” (Tartīb al-Madārik, 1:60)
If that was the situation in their time, there are very good reasons for being sceptical of claims of true ijtihād in this time – almost a thousand years later.
In sum, based on the clear message of prominent scholars from about a thousand years ago: most or all people of the later period are not capable of ijtihād and thus must make taqlīd of earlier mujtahids; following the codification and spread of the madhhabs, it became necessary to follow only one madhhab – and this was by consensus and based on clearly articulated principles; and the position that allows shifting from madhhab to madhhab in different issues is an invalid position that is not followable.
* Some of the reasons for this ruling can be appreciated from the statements quoted. For more detailed discussions on these reasons, see:
darulmaarif.com/wp-content/uploads/2014/04/The-Obligation-of-Adhering-to-a-Single-Madhhab-in-All-its-Rulings-PDF.pdf
ahlussunnah.boards.net/thread/379/brief-explanation-on-necessity-madhab
ahlussunnah.boards.net/thread/374/al-sh-ib-on-madhhab
** Some time after the earlier consensus, the opposing view of it being permissible to shift madhhabs on individual issues gained some popularity. This occurred after the seventh century of Hijrah when major late scholars began advocating this position, like al-Qarāfī, al-Nawawī, Ibn Taymiyyah and Ibn al-Humām. The emergence and spread of this view from the seventh century onwards in no way violates the earlier consensus. These positions are discounted by the earlier consensus and the fact that the situation under question has not changed in a manner that demands a different ruling. If anything, based on the reasonings outlined by the earlier imāms, the situation only demands a stricter adherence to the view that it is necessary to follow one madhhab.
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