If the Imaam is in ruku, does one have to first tie the hands and stand in order to get the rakaat, or does going directly into ruku after takbeer suffice?
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)
If one makes takbeer and while going into the sitting posture the imaam makes one salaam, can one still join the salaah?
If one has to complete missed rakaats in jamaat: In the final sitting, does one read attahiyat, durood as well as the dua, or just stop after reciting the shahadah?
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)
If I join Zuhr Salaah behind the Imaam after 3 rakaats, what is the correct procedure to join and complete the Salaah? What should I recite after standing up after the Imaam has made salaam? Surah Fatiha only ? Surah Fatiha and a Surah?
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)
If somebody say that i consult four madhabs and the one which is closest to sunnah that i choose regarding religious matter. is it necessary to follow one madhab or muslims can follow all four.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
It is important for one to follow one mazhab and have total reliance on the Imam of the mazhab. Every Imam has exerted himself in deducing various rulings of Sharia from the sources which are most relied upon, like the Qur’an and Sunnah. Every Imam is aware of the status (hukm) of a hadith and after examining various hadith, they choose the hadith which is the closest to sunnah. When choosing the closest hadith/Sunnah every Imam interoperates the hadith in a different way.
Nonetheless, this is for Ulama to understand and one cannot simply judge himself in determining which Sunnah is the closest. Just how a patient does not question the judgment of a doctor one should not question the judgment of the Imams. Thus it is imperative for one to follow one mazhab.
For more information you may refer your wife to the following books for an in-depth understanding on the issue of Taqleed.
1- The legal status of following a Mazhab by Mufti Muhammad Taqi Usmani
2- Differences of the Imams by Sheikhul Hadeeth Moulana Zakariyya (Rahmatullahi Alayhi)
3- The obligation of adhering to a single madhhab in all its rulings
And Allah Ta’āla Knows Best
Immad Bin Arshad
Student Darul Iftaa
Checked and Approved by,
Mufti Ebrahim Desai.
Can a hanafi follow the shafi madhab with regards to trimming the beard to less then a fist, where there is no talfiq?
2, can one follow another madhab where talfiq is not involved at all?
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
It is impermissible for a muqalid (follower) of a certain Imam to leave the madhab of his Imam. Rather he is obligated to adhere to one madhab and all of its rulings .
Below is an article written by Maulana Zameelur Rahman (Hafidhahullah) pertaining to the obligation of following one madhab and adhering to all of its rulings.
The Obligation of Adhering to a Single Madhhab in all its Rulings
بسم الله الرحمن الرحيم
الحمد لله رب العلمين، والعاقبة للمتقين، وصلى الله وسلم على محمد خاتم النبيين وعلى جميع الأنبياء والمرسلين
The prevalent Deobandī and Subcontinent position on the obligation of adhering to one school of jurisprudence (madhhab) in all its juristic rulings (masā’il) has recently come under increasing scrutiny. We will argue in this paper that this position is not only more sound in our context, but is also supported by strong positions from within each of the four madhhabs and the stronger position of the Hanafī madhhab, with some of the early scholars having quoted consensus.
As the discussion is relatively lengthy, readers who wish to avoid the details may skip the technical discussion and read the brief summary presented at the end.
The view that we will support can be summarised in the following points:
It is necessary for laypeople and scholars who are not mujtahids to make taqlīd of mujtahids. Moreover, following from the third century of Hijrah, the number of mujtahids of all degrees became very few and far between. Hence, the vast majority of people from that era onwards fall into this category.
After the codification of the madhhabsin approximately the fourth century of Hijrah, it was necessary for laypeople to adhere to a single madhhab in all its rulings. There are two principle reasons for this:
If a layperson was given the option to adopt any position he likes from the various madhhabs, it would lead to freeing him from religious obligation (taklīf), which forms the very foundation of a Muslim’s relationship to the Sharī‘ah.The reason for this is that the codified madhhabs generally address all small and major issues. On any particular issue, therefore, a muqallid would be exposed to multiple differing viewpoints. Hence,if given the option to choose between them, he will be at liberty to select an opinion based on his desires. Hemay even consider something harām at one point and halāl at another. In other words, dīn becomes a thing of play, and religious obligation (taklīf) becomes bereft of any meaning. This dangerous implicationhas been expressly mentioned or alluded to by a number of major early authorities, including the early Shāfi‘ī mujtahids known as the “Ashāb al-Wujūh,” al-Juwaynī (419 – 478 H), al-Ghazālī (450 – 505 H), Ilkiyā al-Harrāsī (450 – 504), al-Arsābandī al-Hanafī (d. 512 H), al-Jīlī (470 – 541 H), al-Māzirī (453 – 536 H) and Ibn al-Munayyir al-Mālikī (620 – 683 H).Their statements or the opinions transmitted from them will be quoted below.
Furthermore, if given the option of selecting any opinion one likes, a personmay unknowingly fall into talfīq which is invalid by consensus. Moreover, it may open the door to selecting opinions outside of the established madhhabs, leading to following shādhdh opinions, something that has been strongly condemned by the ‘ulamā’. These further implications have been alluded to, in particular, by al-Māzirī. Hence, the obligation of following a single madhhab is a precautionary measure against these negative repercussions.
If given the option of following any madhhab one wished on different issues, a major inconsistency will arise in a layperson’s juristic methodology. Each Imām and his madhhab has a distinct methodology and distinct points of reference to earlier proto-madhhabs. If a layperson followed different madhhabs on different issues, it would lead to contradictions in the basic principles on which the rulings are based. For example, if someone followed the Hanafī madhhab in one rulingwhich is based on a particular principle and the Shāfi‘ī madhhab on another ruling which is based on a contradictory principle, a contradiction will arise in the legal methodology, even though both issues may apparently seem distinct.‘Allāmah Anwar Shāh Kashmīrī explained this point in his Fayd al-Bārī. A translation of this passage can be found in the appendix below. Qādī ‘Iyād (476 – 544 H) also mentions this and al-Juwaynī may have alluded to it, as will be discussed below.
It is important to note here that when we speak aboutthe necessity of restricting oneself to a single madhhab, we do not mean the views of only the founder of the madhhab, but the collective input of all the mujtahid scholars of that madhhab. The reason is that the developed madhhab represents the conclusions of one unified pattern or school of juristic thought. The prohibition of taking from multiple mujtahids in the later period, therefore, applies onlyto inter-madhhab disagreements and not necessarily intra-madhhab divergence. See the statements of Abu l-‘Abbās al-Nātifī (d. 446) and Ibn Hamdān al-Hanbalī(603 – 695 H) quotedbelow.Furthermore, the ruling under discussion applies to normal circumstances. In exceptional cases, where there is extreme difficulty in acting on the dictates of one madhhab, the ruling may change.
In the first few centuries of Islām, before the codification of the major madhhabs, a common person was permitted to adopt the views of different mujtahids on different issues. In this period, non-mujtahids were generally limited in the number of mujtahids they had access to and limited in the resources at their disposal for attaining firm knowledge of the view of a particular mujtahid on a certain issue of jurisprudence. As a result, the laypeople of this time were not able to seek out the opinions of scholars who held the easiest opinions on different issues.In other words, unlike the situation in the later period, a layperson of this time would not generally be aware that there are multiple differing opinions on a particular issue. On the contrary, when he receives a verdict, that may be the first and only opinion he finds on that issue.
Furthermore,a layperson would normally refer to the mujtahids of a particular town, like Makkah, Madīnah or Kūfah. Scholars belonging to a particular town were generally unified in the broad contours of their juristic methodology. As a consequence, a layman would not be subject to a great degree of inconsistency in legal opinions and methodology even if he were to ask multiple mujtahids. The permissibility of adopting the views of multiple mujtahids was, moreover, based on necessity. Laypeople generally lacked access to a single mujtahid or school for verdicts on all issues of jurisprudence. Hence, to restrict them to a single mujtahid would not have been possible. Imām al-Juwaynī and others have made reference to this point. In the present time too, if it is extremely difficult to follow one madhhab due to lack of access to all positions of the school or extreme ignorance, the same rule will apply.
After the codification of madhhabs, it became necessary for a non-mujtahid to adopt one madhhab, and follow it in all its rulings. The layperson in this time in most places of the Muslim world would be exposed to the known opinions of the different madhhabs. Hence, giving legitimacy to adopt the view of any madhhab on any issue would lead to great inconsistency in the juristic methodology of a muqallid. The potential for selecting the easier opinions and playing with dīn became much more real. At this stage, a muqallid was exposed to multiple opinions in single issues, as opposed to the earlier period when the laypeople were generally not exposed to multiple opinions on single issues. Hence, giving him the option to choose between them will free him of religious obligation (taklīf), and allow him to select opinions based on his desires. Moreover, a muqallid is only qualified to assess which madhhab he feels is in general superior. He does not have the ability to adjudicate between them in individual issues. Hence, as al-Ghazālī explicitly mentions, and others have suggested, the only reason why a muqallid would follow multiple mujtahids in the later period is in following his desires (tashahhī), even if he does not realise it.
Finally, it is necessary to have conviction that the madhhab one follows is correct, as stated by Fakhr al-Dīn Muhammad ibn Mahmūd al-Hanafī(d. ca. 570 H) and others. This is achieved by acceptingthe words of trusted scholars or based on widespread recognition of the madhhab or other such indications, as mentioned in the statement of Imām al-Ghazālī quoted below. The reason for this obligation is that the rules of Sharī‘ah depend on one’s belief in their veracity. If one is in doubt or does not have conviction that what he is following is correct, the rules of Sharī‘ah cannot correctlybe implemented.
According to the scholars of juristic theory, the correct view in a point of ijtihādī difference isin reality only one, although all mujtahids are on a right path and are rewarded for their ijtihād; and they, as well as their followers, will be excused for any error in ijtihād that falls within the parameters of legitimate disagreement. Hence, one must feel confident that the path he has chosen, i.e. his madhhab, is correct in relation to the others, which he believes are incorrect on the points where they differ with his madhhab, while acknowledging the possibility that the reversemay be true.
Statements from the Early Scholars of the Hanafī School
One of the principles of fatwa in the Hanafī school is that, in the absence of a clear ruling from the founders of the madhhab, i.e. Imām Abū Hanīfah and his direct disciples, the fatwa of the early mujtahids in the school is binding. On the issue at hand, the ruling only became applicable after the codification of the madhhabs, when a new situation presented itself to the common Muslims, i.e. access to the conclusions of multiple recognised mujtahids following distinct legal methodologies on most issues of jurisprudence. The early mujtahids of the Hanafī madhhab from this period clearly obligated adherence to a single madhhab in all its rulings. Hence, the views of later scholars of the madhhab like Ibn al-Humām (d. 861 H) and Ibn Nujaym (d. 969) will be disregarded.
The following are some of these statements:
Fakhr al-Qudāt Muhammad ibn al-Husayn Abū Bakr Arsabandi (d. 512) said:
“If the truth was multiple, it would be allowed for a muqallid to make taqlīd of this mujtahid once and taqlīd of another at another time, so this would be premising the religion on desire, which is ugly…And those who say the truth is one, consider it necessary for the layperson to follow one Imām –whose position according to him is that he is the most learned based on the evidence of inspection – and he does not oppose him in anything based on his personal whim.” (Taqwīm Usūl al-Fiqh, Dār al-Nu‘mān lil ‘Ulūm, 2:868)
In this statement,al-Arsābandī is refuting the Mu‘tazilī belief that the truth in an issue open to differences of ijtihād is multiple. He says that this would entail the layperson is allowed to follow different mujtahids which would be basing religion on desire(and not on religious obligation). Hence, there is a clear indication in this passage that the reason why one must adhere to a single madhhab is that to do otherwise would entail basing religion on desire.The reason why giving such an option to a muqallid entails basing the religion on desire has been articulated by al-Arsābandī’s Shāfi‘ī contemporary, Imām al-Ghazālī, in the passage that will be quoted from him further below. In brief, the limit of a muqallid’s ijtihād is to determine that one madhhab appears superior to the other. Beyond that, the muqallid does not have the capacity to adjudicate between the madhhabs on individual points of difference. Hence, the only reason he would follow one madhhab in some rulings and another in other rulings is in following his desires (even if he does not realise it or believe so).
Thereafter, al-Arsābandī asserts the scholars who hold thatthe truth is one – meaning, the scholars whose view we subscribe to – believe that it is necessary for the layperson to follow one Imām. The process by which the layperson selects which Imām he will follow is to apply his mind and choose the one he feels is most learned. The reason he is to do this is precisely because the truth in an issue of disagreement is one. If one did not have confidence that his madhhab is superior, he would not have belief in its injunctions being correct, and in order for the laws of Sharī‘ah to properly function, it is necessary that a person believes they are correct.
Hence, al-Arsābandī clearly advocates the obligation of adherence to a single madhhab on the basis that giving the layperson the option to choose from different madhhabs on different occasions entails basing the religion on personal whim.
Ahmad ibn Muhammad ibn ‘Umar Abu l-‘Abbās al-Nātifī (d. 446) said, commenting on a statement of Imām al-Hasan ibn Ziyād (d. 204) regarding the options available to a person “ignorant of knowledge” (al-jāhil bi l-‘ilm) when presented with multiple different fatwas:
“This is when the questioner is on the madhhab of the people of ‘Irāq, and one scholar issues fatwa on the view of Abū Hanīfah and another scholar issues fatwa on the view of Abū Yūsuf and another scholar issues fatwa on the view of Muhammad or the view of Zufar, for he may not opt for the view of al-Shāfi‘ī nor the view of Mālik.” (Mu‘īn al-Hukkām, p. 27)
This statement illustrates that in the fourth century, the Hanafī scholars spoke in a context of laypeople (who are “ignorant of knowledge”) adhering to a single madhhab. Moreover, such people were not allowed to step outside of the madhhab. It also illustrates “adherence to a madhhab” refers to the madhhab as a wholeand notto a single person, i.e. a body of scholars belonging to the same juristic school.
It is important to note here that the view of those scholars who spoke about the layperson having a choice to select from multiple different fatwas presented to him does not contradict this paradigm, precisely because, as al-Nātifī mentioned, a layperson is restricted to follow the scholars of his school and is not necessarily restricted to any particular scholarwithin the school. Hence, this “choice” refers to the scholars within one’s school and not outside of it.
Imām Muhammad ibn Mahmūd ibn al-Husayn al-Asrūshanī (d. 632)said:
“It is permissible for a man and woman to switch from the Shāfi‘ī madhhab to the Hanafī madhhab and, likewise, vice versa, but in totality. As far as a single issue is concerned, he will not be allowed [to do that]; such that if blood was to come out from a person of the Hanafī madhhab and it flowed, it will not be permissible for him to pray before performing wudū’, imitating the madhhab of al-Shāfi‘ī in this issue, and if he prayed before performing wudū’, he will be punished.”
Fakhr al-Dīn Muhammad ibn Mahmūd (d. ca. 570 H) said:
“The slaves are ordered to act on the evidences of Sharī‘ah…As far as the generality of the Muslims are concerned, it is not in the capacity of everyone to give preference to evidences and exercise ijtihād, but he must give preference to an Imām he considers, and he will be a follower of him. When he contemplates and gives preference to an Imām over an Imām, and he considers his path true and right, the view of others becomes invalid for him, so it is not permissible for him to act on their madhhab, just like a mujtahid when an evidence is authentic according to him, he does not act on the remaining [evidences]. It is only such because all people are ordered to act on the command of Allah, whether they are scholars or non-scholars, but the scholars are ordered [to do so] with evidences and precedents and giving preference to one of the evidences, and the commoners are ordered to give preference to the scholars as it is not in their capacity [to do] other than that, in order that everyone will be observant of the command of Allāh (Exalted is He).”
Although he does not state it explicitly, the reason why a non-scholar must select one scholar (i.e. mujtahid) he believes is superior – although this was not the rule in the earlier period – is because, as alluded to in this passage, to not do so would negate him being “observant of the command of Allāh” and acting on the “evidences of Sharī‘ah”. The only reason this would be so isthat if the layperson is free to select whatever opinion he pleases, religious compulsion or obligation would be lifted, and he will become a follower of his personal whim as opposed to the Sharī‘ah.
Fakhr al-Dīn also said:
“Rigidity in the madhhab is wājib, and fanaticism is impermissible. Rigidity is to act on what is [the of view] his madhhab and he believes it is true and correct, and fanaticism is imprudence and rudeness with respect to the founder of another madhhab, and all that stems from his denigration. That is not permissible, because the Imāms of the Muslims are in search of what is right and they are on the truth”
‘Ubayd Allāh ibn ‘Umar ibn ‘Īsā,Abū Zayd al-Dabūsī (368 – 430 H)said:
“The one who regards the truth as multiple [like the Mu‘tazilah] establishes choice for the layperson to select [from them] based on his personal whim. And the one who says the truth is one, he makes it necessary for the layperson to follow one Imām, whose position according to him is that he is the most learned based on the evidence of inspection, and he does not oppose him in anything based on his personal whim.” (Taqwīm al-Adillah,p. 410)
Al-Arsābandī’s statement quoted earlier is a rephrasing of this passage of al-Dabūsī. Hence, the same explanation applies.
Zahīr al-Dīn al-Marghīnānī al-Kabīr ‘Alī ibn ‘Abd al-‘Azīz (d. 506) said:
“A layperson of the Hanafī madhhab bleeds and did not repeat purification, imitating al-Shāfi‘ī with respect to this ruling, that is not permissible for him.”
Shaykh al-Islām Burhān al-Dīn ‘Alī ibn Abī Bakr al-Marghīnānī (511 – 593 H) said:
“A [Hanafī] man suspends divorce of marriage and then he marries a woman and seeks fatwa from [a person belonging to] the Shāfi‘ī madhhab, and he issues fatwa according to his madhhab that the divorce has not occurred, it will not be a proof with respect to him.”
If a man were to say, “Every woman I marry is divorced,” the suspended divorce takes effect in the Hanafī madhhab but not in the Shāfi‘ī madhhab. According to this fatwa of Imām al-Marghīnānī, a Hanafī may not accept the fatwa of a Shāfi‘ī who tells him the divorce has not occurred.
In explaining why the early Hanafī scholars obligated the layman to stick to one madhhab, Ibn al-Humām (788 – 861 H) said:
“Most probably the compulsions [of adhering to a single madhhab] such as these from them [i.e. the earlier scholars of the school] was to prevent them [i.e. the laypeople] from seeking out the easiest opinions (tatabbu‘ al rukhas), for otherwise the layperson will select the view of a mujtahid whose opinion is least burdensome on him.” (Fath al-Qadīr)
Unfortunately, Ibn al-Humām did not agree with this established view and even allowed seeking out the easiest opinions of the madhhabs (tatabbu‘ al-rukhas)!Tatabbu‘ al-rukhas is forbidden by consensus, as stated by Ibn ‘Abd al-Barr. The personal opinion of later scholars cannot override the established consensus of the early scholars. In discussing the position attributed to ‘Izz al-Dīn ibn ‘Abd al-Salām on the permission of tatabbu‘ al rukhas, Imām al-Wanshirīsī al-Mālikī (d. 914 H) said:
“Ibn Hazm and Abu ‘Umar [ibn ‘Abd al-Barr] have related consensus [on the prohibition of tatabbu‘al-rukhas], and its basis is transmission, while ‘Izz al-Dīn did not clarify any basis for his fatwa, so it may be an opinion that he held and was isolated in, or a consequence of [his] opinion which is what is apparent from the force of his speech. Whatever it may be, it is an innovated view after an earlier consensus, so it is rejected (bātil) due to its implication of imputing error on the ummah, and imputing error on them is prohibited as established in the principles of Fiqh.”
We will also see from some of the statements of early Imāms that following the codification of the madhhabs, there was consensus that a layperson must adhere to a single madhhab. Hence, this early consensus too may not be superseded by the view of some later scholars.
From these quotes from the early authorities of the madhhab, we learn that the official Hanafī position is that a layperson must stick to a single madhhab, believing all its rulings are correct, and he may not switch madhhabs on single issues. The view of Ibn al-Humām and subsequent scholars in opposition to this cannot override the established position of the madhhab. ‘Allāmah Qāsim ibn Qutlūbughā (802 – 879 H) said: “The researches of our teacher [Ibn al-Humām] which are contrary to the madhhab will not be acted upon.” (Sharh ‘Uqūd Rasm al-Muftī, p. 35)
One final point we will mention here is that in the early Hanafī school, some scholars mentioned an exception to this rule, which is that a Hanafī muqallid may accept the fatwa of a Shāfi‘ī mufti in the case of the suspended divorce. However, ‘Allāmah Ibrāhīm ibn Husayn Bīrī al-Makkī (d. 1099), the Hanafī mufti of Makkah, has explained in a treatise on this subject, called Ghāyat al-Tahqīq fī ‘Adami Jawāz al-Talfīq fi l-Taqlīd – in which he addresses a number of other such doubts –, thatthis is not an example of leaving the madhhab nor is it an exception to the rule.This is because al-Zāhidī (d. 658 H) reported that the “Shāfi‘ī view” in this example is an opinion transmitted from Imām Muhammad ibn al-Hasan al-Shaybānī, and many of the early mujtahids from Khawārizm would issue fatwa on it.
In brief, there is nothing in the recorded views of the early mujtahid scholars of the madhhab that upsets the paradigm we have presented.
Statements from the Early Scholars of the Shāfi‘ī School
Imām al-Haramayn, Abu l-Ma‘āli ‘Abd al-Malik ibn Abī Muhammad al- Juwaynī (417 – 478 H) said:
“If it is said: Is it permissible for a layperson to subscribe in some juristic rulings to the madhhab of al-Shāfi‘ī and in some of them to the madhhab of Abū Hanīfah, and likewise the madhhab of all the Imāms in this fashion? If you say: That is permissible, and it is not necessary for anyone to adhere to the founder of a specific madhhab, then there is no need in that case to author this book, because he has no need to recognise the “more correct” and follow what is right and true [according to him], but he does whatever he wishes according to the madhhab of whomsoever he desires.
“The answer is: We say: It is not permissible forthe layperson [to do] what you mentioned. Rather,it is definitely necessary for him to specify a madhhab from these madhhabs, either the madhhab of Al-Shafi‘ī – may Allāh be pleased with him – in all cases and subsidiaries, or the madhhab of Mālik or the madhhab of Abū Hanīfah or other than them– the pleasure of Allāh be upon them. He may not subscribe to the madhhab of al-Shāfi‘ī in some of what he desires and the madhhab of Abū Hanīfah in the remainder of what he approves, because if we allowed it, that will lead to immense confusion and lack of regulation. Its outcome will bethe negation of [religious] obligations and there would be no benefit to the [religious] obligation established on him, since if the madhhab of al-Shāfi‘ī necessitates the impermissibility of something and themadhhab of Abū Hanīfah necessitates the permissibility of that very thing or vice versa, if he wishes he may incline towards permissibility and if he wishes he may incline towards impermissibility, so neither permissibility nor impermissibility would be realised. In this is the negation of obligation and nullification of its benefit and uprooting of its foundation. And that is rejected (bātil).
“If it is said: Was it not that in the era of the Sahābah, a person was given the option between selecting, in some cases, the madhhab of al-Siddīq, and in some, the madhhab of al-Fārūq, and likewise with respect to all the Sahābah in all cases, and they did not prevent him from that? So since this is permissible amongst the Sahābah, why is it not allowed in our time?
“The answer is that this was only so because the juristic principles of the Sahābah were not adequate for all cases, comprehensive of all rulings, encompassing all subsidiaries, covering all details, because they laid the groundwork, founded principles, paved the foundations and did not dedicate themselves to deriving subsidiaries and elaborating the details. Hence, the madhhab of Abū Bakr was not adequate for all cases, and likewise the madhhab of all Sahābah, so because of necessity, it was permitted for muqallids to follow Abū Bakr in some cases and in that which his opinion was not found, to follow al-Fārūq. As for this era of ours, the madhhabs of the Imāms are adequate and encompassing of all, because there is no case that occurs except that you find it in the madhhab of al-Shāfi‘ī or in the madhhab of other than him, either explicitly or by derivation, so there is no necessity to follow two Imāms together.” (Mughīth al-Khalq, 13-16)
This is a very explicit passage showing the reason for the difference between pre and post codification of the madhhabs.
Al-Juwaynī mentions that, if allowed to follow more than one madhhab, it will lead to two things: one is immenseconfusion and the other is lack of regulation. It is possible that by “immense confusion” there could be an allusion to the inconsistency in juristic methodology that would arise if a layperson followed multiple madhhabs. This is supported by his reference to the “principles” of the Sahābah which he states were insufficient for all juristic issues. On the other hand, the principles of the codified madhhabs were complete and applied to more or less all juristic issues. It is because of the insufficiency of the methodologiesof the Sahābah that, out of necessity, the layperson was permitted to accept rulings from multiple mujtahids.
“Lack of regulation” refers to, as al-Juwaynī elaborated, the removal of religious obligation, by giving the legally obligated individual the option to choose between different legal rulings on the same issue.
Moreover, al-Juwaynī is emphatic in this ruling, saying it is “definitely” (hatman) obligatory on the layperson to adopt a single madhhab, and the repercussions of saying otherwise is something that is outright rejected (bātil). Scholars who in the present time hold the same strict stance, therefore, are fully justified in doing so.
Recording the position of Shams al-Islām Abu l-Hasan ‘Alī ibn Muhammad Ilkiyā al-Harrāsī (450 – 504 H),Imām al-Nawawī said:
“If [a layperson] 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, adopting its dispensations and strictures?…The second [view] is it is necessary for him. Abu l-Hasan 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. Its basis is that if following any madhhab he wished was permissible, it will lead to collecting the dispensations of the madhhabs,in following his desire, and choosing between permission and prohibition, obligation and permissibility, and that will lead to relinquishing the burden of responsibility; as distinguished from the first period [of Islām] because the madhhabs incorporating laws related to all outcomes were not refined. Based on this, it is necessary for one to strive to choose a specific madhhab he will follow. We will pave for him a simple path he should follow when striving to do so. Thus, we say:Firstly, he may not follow in this mere desire and inclination towards what he found his forefathers upon; and he may not adopt the madhhab of any of the Imāms of the Sahabah (Allah be pleased with them) and others from the early ones, even though they were more learned and higher in rank than those who came after them because they did not devote themselves entirely to compiling knowledge and outlining its principles and its branches, so none of them had a refined, codified and approved madhhab, and only those who came after them from the Imāms who were affiliated to the madhhabs of the Sahābah and the Tābi‘in took up this task, undertaking the responsibility of laying down the laws pertaining to all happenings before they occurred, and attempting to clarify their principles and branches, like Mālik, Abū Hanīfah and others.” (Al-Majmū‘ Sharh al-Muhadhdhab, 1:93)
The position of Ilkiyā al-Harrāsī presented here is similar to that of his teacher, al-Juwaynī. However, here there is the addition that the layperson is obligated to select the madhhab he will follow based on a personal examination of which madhhab he feels is superior. As mentioned earlier, the reason for this obligation is the necessity to have firm belief in the correctness of the legal injunctions one is following.
Hujjat al-Islām al-Ghazālī, Abū Hāmid Muhammad ibn Muhammad (450 – 505 H) said while discussing the conditions for condemning a wrong (munkar):
“The fourth condition is that its being munkar is known without ijtihād. So all that is in a place of ijtihād, there is no accountability therein. Hence, a Hanafī may not condemn a Shāfi‘ī for eating a lizard and hyena and [the animal over which] saying bismillāh was left out, and a Shāfi‘ī may not condemn a Hanafī for drinking non-intoxicating nabīdh and taking inheritance of distant relatives and residing in a house which he acquired by [the right of] pre-emption of a neighbour,and other such [examples] from the places of ijtihād.
“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 is in a place of 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 other than him; 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 other than him, 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 munkar, and he is sinful in opposing [him].” (Ihyā’ ‘Ulūm al-Dīn, 2:321)
In this passage, al-Ghazālī has quoted consensus that a muqallid must follow his Imām who he believes is superior to the other Imāms. Moreover, by mentioning that he may not “choose from the madhhabs the most pleasing of them to him,” there is an indication that the reason for this restriction is that it would lead to tatabbu‘ al-rukhas and following desires.
Al-Ghazālī further said in the same passage, rejecting the contrary view:
“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. So this is a view that is not established, and if established, it is given no consideration.” (Ihyā’ ‘Ulūm al-Dīn, 1:322)
In this passage, it is clear that what al-Ghazālī meant by the muqallid’s “Imām” in the previous passage is his madhhab, and not the individual Imām per se. Furthermore, al-Ghazālī knows of no disagreementon the impermissibility of selecting from all the madhhabs as one wishes. Rather, it is necessary to restrict oneself to a single madhhab. And finally, he says, even if anyone were to have disagreed, his opinion is rejected.
In a letter to Qādī Abū Bakr al-Mālikī (d. 543 H), Imām al-Ghazālī said:
“It is not permissible for the muqallid of a scholar to choose the most pleasing of the madhhabs to him and the most agreeable to his temperament. He must make taqlīd of his Imām who he believes to have the correct and right madhhab in relation to other than him, and follow him in all that comes and goes. Hence, it is not permissible for a Mālikī to switch to the madhhab of al-Shāfi‘ī unless it overpowers his mind that its opinions are more correct. In that case, it is necessary to make taqlīd of him in all juristic rulings. If it is not that, then there is no motive for him to oppose [his madhhab] except whim, just as it is not permissible for a mujtahid to oppose the conclusions that his ijtihād reached…
“It is necessary for every Muslim to follow what overwhelms his mind that it is the most correct in acts of devotion. This condition in the muqallid is achieved by considering what his Imām – whose opinion being sound has overwhelmed his mind – is upon as correct; just as knowledge of the best of doctors in the lands is achieved by the one who is ignorant of it. This is either through hearing from the mouths [of people] or observing most people [going to] a particular person, or his hearing two people or one person whose assessment is good [according to him] and his heart feels comfortable with him; like if he were to hear from his parents the excellence of Mālik and al-Shāfi‘ī, and he assents to it and his heart feels comfortable with it. Hence,it is not permissible [for him] to oppose his assessment.
“If hewere to say: ‘My assessment in other than this legal case is that the one I made taqlīd of is wrong,’ muqallids are not entitled to this. His ijtihād in individual issues is an error and it is as though in his mind he knows that which his Imām does not know in other than this issue [in which he made taqlīd of him], and this is ignorance! As for following al-Shāfi‘ī in an issue in which he opposed a Sahābī, it is necessary to have the assumption of al-Shāfi‘ī that he did not oppose him except for an evidence stronger than the madhhab of the Sahābī. If this was not assumed, he would ascribe to al-Shāfi‘ī ignorance of the position of the Sahābī, and this is impossible. This is the reason for giving preference to the madhhab of the later ones [i.e. the four Imāms] over the earlier ones [i.e. the Sahābah], despite knowledge of the superiority of their knowledge over theirs;as the earlier ones heard hadīths solitarily and dispersed in the lands and their fatwas and decrees differed in the lands, and sometimes hadīths reached them and they withheld from what they opined and decreed. In the first era, they did not get involved in collecting hadiths due to their occupation with jihād and laying down[the foundations of] the religion. Then when the people reached [the time of] the successors of the Tābi‘īn, they found Islām settled and established, so they diverted their attention towards collecting hadīths from the furthest lands and places by means of journeys and travels. Thus, the later ones inspected after encompassing all the proofs of the laws, and they did not contravene what was opined in the earlier [period] except for an evidence stronger than it…”(Al-Mi‘yār al-Mu‘rib, 11:164-5)
This is an explicit passage that according to al-Ghazālī, a muqallid must make taqlīd of the madhhab of his Imām in all rulings. He may not follow one madhhab in some rulings and another in other rulings, and al-Ghazālī is clear that the only reason that a muqallid would do this isin following his desires. The limit of a muqallid’s ijtihād is to determine that one madhhab appears superior to the other. Beyond that, the muqallid does not have the capacity to adjudicate between the madhhabs on individual points of difference. Hence, he must choose one madhhab he feels is superior and adhere to it completely, as the only reason for shifting in individual rulings would be vain desire (even if the muqallid does not realise it).
Shāfi‘ ibn ‘Abd al-Rashīd Abū ‘Abdillāh al-Jīlī (470 – 541 H) is referred to in the following passage of al-Zarkashī:
“If [a muqallid] adhered to a specific madhhab, like [the madhhab of] Mālik or al-Shāfi‘ī, and he believed in its superiority in general, is it permissible to oppose his Imām in some juristic rulings and select the opinion of another mujtahid besides him? In this are [the following] views: First, prohibition. Al-Jīlī positively asserted this in al-I‘jāz, because the view of every Imām is independent in individual cases, so there is no need to shift except following desires, and due to what is in it of following dispensations and playing with religion.”
There is a clear indication in this statement that the only reason the earlier generations did not restrict themselves to a single mujtahid is because there was a need: the rulings of each mujtahid on all juristic issues were not known, making it necessaryto refer to multiple mujtahids. Al-Juwaynī was quoted earlier making the same point.
Furthermore, the reason for restricting oneself to a single madhhab, i.e. the potential of following desires, is also alluded to in this statement. Although al-Jīlī does not say that a layperson must at the outset select a madhhab, but since his reasoning is that to have the option to select from multiple madhhabs bears the consequence of following desires and playing with the dīn, it would entail that his opinion is it is necessary for a layperson to choose one madhhab he will follow in all its rulings. Safī al-Dīn al-Hindī (644 – 715 H) said after mentioning this very reasoning:
“This evidence demands that it is necessary for the layperson to subscribe to a specific madhhabat the outset.”
Moreover, it is also clear from this passage that al-Jīlī saw no reason why a muqallid would shift from one madhhab to another – when there was no dire need as in the early period – besides following vain desire (tashahhī).
Al-Qaffāl al-Marwazī, Abū Bakr ‘Abdullāh ibn Ahmad’s (327 – 417 H) opinion is mentioned in the following passage from al-Nawawī’s Sharh al-Muhadhdhab:
“Shaykh [Abū Muhammad al-Juwaynī] said: It will be considered if he [i.e. the layperson] is ascribed to a madhhab, we will premise it on two views which al-Qādī Husayn related in that the layperson does he have a madhhab or not?…The second, and this is the most authentic according to al-Qaffāl, is that he does have a madhhab, so it is not permissible for him to oppose it.” (al-Majmū‘ Sharh al-Muhadhdhab, 1:93)
In explaining al-Qaffāl’s view, Ibn al-Salāh states:
“Because he believes that the madhhab which he is ascribed to is the truth and he gave it preference over other than it, so he must follow through with the demand of this belief of his. Hence, if he is a Shāfi‘ī he may not seek fatwa from a Hanafī, nor oppose his Imām.”
This proves that according to al-Qaffāl once a muqallid has selected a madhhab, he must adhere to it in all its rulings.
The “Ashāb al-Wujūh” were major early mujtahids in the Shāfi‘ī madhhab, generally having lived between thethird and fifth centuries. Al-Nawawī describes them as follows: “A mujtahid restricted to the madhhab of his Imām, independent in establishing his viewpoints with evidence, although he does not go beyond the foundations of his Imām and his principles in his evidences. His condition is knowledge of jurisprudence and its principles and the detailed evidences of laws, and insight into the methodology of [drawing] legal analogies and [determining] the ratio legis. [He is] fully trained in extraction and derivation, capable of linking what is not explicitly mentioned by his Imām to his principles.” Al-Nawawī then said: “This is a description of our Ashāb, the Ashāb al-Wujūh.” (Sharh al-Muhadhdhab, p. 76)Some examples of Ashāb al-Wujūh are: Abū ‘Alī al-Husayn ibn Sālih ibn Khayrān (d. 320 H), Abū Yahyā Zakariyyā ibn Ahmad al-Balkhī (d. 330 H), Zāhir ibn Ahmad al-Sarakhsī (d. 389 H) andAbū Bakr al-Awdanī (d. 385 H).
“If [a layperson] is not ascribed [to a madhhab], it is premised on two views, which Ibn Barhān related from our Ashāb, in that: Is it necessary for the layperson to adopt a particular madhhab?…The second it is necessary for him. Abu l-Hasan 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 with what he found his forefathers upon. This is the statement of the Ashāb.” (Rawdat al-Tālibīn, 8:101)
In explaining the view of the Ashāb, al-Nawawī clearly mentions that in the early period the laypeople were not able to seek out the easiest opinions of the mujtahids, precisely because their madhhabs were not codified.
In short, there is very strong support from within the early Shāfi‘ī school for the paradigm of taqlīdwe have proposed in the introduction. Furthermore, Imām al-Ghazālī effectively quoted consensus on this ruling, and as mentioned earlier, the disagreement of later scholars cannot override the binding consensus of the earlier jurists.
Statements from the Early Scholars of the Mālikī School
Shaykh al-Islām Qādī Abu l-Fadl‘Iyād ibn Mūsā (476 – 544 H)said:
“Know – may Allāh give us and you success – that the ruling of the one devoted to the orders of Allāh (Exalted is He) and His prohibitions, obedient to the Sharī‘ah of His Prophet (Allāh bless him and grant him peace), is to seek acquaintance of this and that with which he will render devotion [to Allāh] and that which he will perform and will omit, and [that which] is necessary for him and forbidden, and [that which] is permissible for him and encouraged, from the Book of Allāh and the Sunnah of His Prophet, for they are the two foundations which the Sharī‘ah is known only by means of and Allāh is rendered devotion only by knowledge of.
“Furthermore, the consensus of the Muslims is built upon them, and dependent on them. Thus it cannot be found nor convened, except [based] on them, either from a text which they knew and then did not transmit or from a deduction based on them – based on the view that a consensus via the route of ijtihād is valid.
“All of this will not be complete except after making knowledge of them, and the means and tools allowing him to reach it, a reality, in terms of transmission and reason,and pursuit of it, collection and retention, and knowledge of what is sound from the traditions and famous, and acquaintance of how to gain understanding, and that by which he will gain understanding, in terms of knowledge of the outward of the words, which is knowledge of Arabic and language, and knowledge of their meanings and the meanings of the intent of Sharī‘ah and its objectives, and the clear directive of speech, its outward and its purport and all its angles, which is termed “knowledge of the principles of jurisprudence”, most of which is connected to knowledge of Arabic and the objectives of speech and conversation, and then [knowledge of] the source of making a [legal] analogy of what has not been explicitly stated on what has been explicitly stated, drawing attention to the presence of the legal reason in it or its resemblance to it.
“All of this requires time, while devotion [to Allāh and Sharī‘ah] is necessary immediately. Moreover, 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 the legally responsibility individuals (muakkallafīn) to receive what he will render devotion with and which he was legally 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 his transmission, knowledge and assessment. This is taqlīd, and the rank of the common people, nay most of them [i.e. people], is this!
“Since this is so, it is necessary to make taqlīd of a scholar that is dependable upon in that, and when the scholars become abundant, then the most learned.
“This is the share of the muqallid in terms of ijtihād (exercising judgement) for his religion. The muqallid will not abandon the most learned and go towards other than him, even if he [too] is engaged in knowledge. Thus, he will ask about that of which he does not have knowledge until he knows, just as Allāh (Exalted is He) said: ‘Ask the people of knowledge if you do not know.’And the Prophet (Allāh bless him and grant him peace) ordered imitation of the caliphs after him and his companions, and indeed the Prophet (Allāh bless him and grant him peace) dispatched his companions amongst the people to teach them the understanding of religion, and teach them what is prescribed upon them, and Allāh (Exalted is He) encouraged all of them, that from each group a party of them go forth in order to gain understanding in the religion and warn their people when they return tothem. (Qur’ān, 9:122)
“Since this matter is necessary and inevitable, and the most worthy and deserving of those who the ignorant layperson and the novice worshipper and the student seeking guidance and the one seeking understanding in the religion of Allāh make taqlīd of are the jurists of the companions of the Messenger of Allāh (Allāh bless him and grant him peace), who took knowledge from him and knew the reasons for the revelation of the commands and prohibitions, and the functions of the laws, and the contexts of his (upon him peace) speech, and they witnessed the indications of it, and they spoke directly in most of them with the Prophet (upon him peace), and they asked him about them, along with what they were upon of vast knowledge and acquaintance with the meanings of speech and illumination of hearts and expansion of breasts, so they were indisputably the most learned of the Imāms, and the worthiest of them to make taqlīd of, but they did not speak about the legal cases except in the small number [of them] that arose, nor were juristic rulings derived by them, and they did not speak about the Sharī‘ah except of principles and events, and most of their occupation was in acting on what they knew, and defence of the territory of religion, and consolidating the Sharī‘ah of the Muslims. Moreover, there is disagreement amongst them in some of what they spoke of, which will leave the muqallid in confusion, and will force him to contemplate and have reservation.
“Derivation [of subsidiary rulings], drawing results and elaborating the [points of] discussion in that which is expected to occur only came after them. Thus, the Tābi‘ūn came, and they analysed their disagreement and they built on their foundations, and then after them scholars arose from the successors of the Tābi‘ūn, and events became numerous, legal cases took place, and the fatwas on them became diverse, so they gathered the views of all [scholars], and they preserved their jurisprudence, and they researched their disagreement and their agreement, and they were cautious of the matter becoming dispersed and the disagreement going out of control, so they exercised their reasoning in collecting the traditions and regulating the principles, and they were asked and they answered, and they founded principles and paved foundations and derived legal rulings based on them, and they authored for the people works on this and arranged them into chapters, and each of them acted in accordance with what was inspired to him and he was granted accordance to [do], so the knowledge of principles and subsidiaries, disagreement and agreement,reached its peak with them, and they drew analogy on what reached them of what it indicates to or it resembles. May Allāh be pleased with them all and give them the full reward for their efforts.
“Thus, it is stipulated for the lay muqallid and the novice seeker of knowledge to refer in [his] taqlīd to these [mujtahids] for the texts of his legal cases, and refer to them in what is unclear [to him] therefrom, due to the encompassment of the science of Sharī‘ah and its revolving around them, and their excellence in analysing the madhhabs of those who came before them, and their sufficing of that for those who came after them.
“However, taqlīd of all of them will not be possible in most legal cases and the majority of rulings, due to their disagreement based on the different principles on which they built [the rulings]. And it is not correct for a muqallid to make taqlīd of whosoever he wishes from them based on whim and chance, or based on what he finds the people of his vicinity and his family upon.
“Thus, his share here of ijtihād is analysing the most learned of them, and gaining recognition of the worthiest of the totality of them for taqlīd, so that the layperson will incline in his deeds to his fatwas, and will rely in his acts of piety on what he opined…It is not permissible for him to trespass in consulting those whose madhhab he does not adhere to for fatwa, since some of the elders said: ‘The Imām for the one who adopts his madhhab is like the Prophet (upon him peace) with his ummah – it is not permissible for him to oppose him.’ This is correct in terms of reasoning, and in what we elaborated, its soundness is manifest to the people of insight.
“…Once this introduction is established, we say: The consensus of the Muslims in all places of earth has occurred on taqlīd in this fashion, and adherence of them, and studying their madhhabs and not those before them, while acknowledging the excellence of those before them and their priority and their superior knowledge, but the problems [in following them] are as we described and the sufficiency of what they selected from them is as we mentioned earlier.
“…The people today in all the lands of the world have evolved into five madhhabs: Mālikīs, Hanafīs, Shāfi‘īs, Hanbalīs and Dāwūdīs – and they are known as Zāhirīs. Thus, it is incumbent on a student of knowledge and the one wishing to gain acquaintance of what is true and correct to recognise the most worthy of them of taqlīd, in order to depend on his madhhab and tread his path in seeking jurisprudential knowledge.” (59 – 67)
The important points to note from this lengthy passage of Qādī ‘Iyād are, firstly, that he notes most people in his time were muqallids; secondly, the reason it is not possible to follow the madhhab of a single Sahābī is that no Sahābī has a unified madhhab relating to all issues of jurisprudence; thirdly, and perhaps most importantly, Qādī ‘Iyād identifies the reason why it is necessary to adhere to one madhhab as the different principles of each madhhab on which they based their rulings – following all of them, therefore, will result in a contradiction in the outcome; finally, he relates consensus on this type of taqlīd i.e. the obligation of adhering to a single madhhab one believes to be superior to the others.
Imām al-Māzirī, Abū ‘Abdillāh Muhammad ibn ‘Alī al-Tamīmī (453 – 536 H)said:
“When a question came to me from Tūnis – Allāh protect it – when a man who a long time ago had studied part of the science of Usūl under me had married a woman and divorced her thrice, and then considered her permissible [for him], after a man solemnised [the marriage] with her and did not have intercourse with her, so a question about him came to me from the judge and the jurists of the city, I reprimanded him excessively, and I went into excess, until he thought I gave them permission to punish him! I mentioned thatthis is a door, if opened, repercussions would occur in terms of religion and consequences in terms of adherence to the laws [of Sharī‘ah].
“…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 the negative repercussions]. If this was legalised, a man would say: I will sell one dinar for two dinars due to 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 nor witnesses in imitation of Abū Hanīfah with respect to the guardian and of Mālik with respect to witnesses, and I will marry her for a meagre price in imitation of al-Shāfi‘ī. This is the greatest opportunity for disaster. This practice would be severed in the earlier times, despite the scrupulousness of its people and their fear of their honour and their 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 in such a way that is not hidden to the intelligent. This is a time when it is more suitable to cut off the substances of laxity in religious matters. …You see our imams 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, due to what it will lead to in terms of corruption.” (Fatāwa l-Māzirī, al-Dār al-Tūnisiyyah, 151-3)
In this passage, al-Māzirī explains the importance of regulatory measures to keep laypeople in check from falling into unwanted consequences. Two such consequences he refers to in this passage are: adopting shadhdh opinions, such as Ibn ‘Abbās’s opinion of allowing the sale of one dirham for two dirhams on spot; and talfīq as in the example of the marriage that he described made up of the opinions of three different madhhabs.
Al-Māzirī also mentions in this passage that scholars had put these measures before his time also. There is in fact a reference to Mālikī scholars restricting the muftis to giving fatwa only on the madhhab of Imām Mālik as far back as the early third century. Wanshirīsī reports from al-Hārith ibn Miskīn (d. 250 H) and Sahnūn (d. 240 H) that they forbade the muftis of their areas from issuing fatwa on other than the madhhab of Mālik (al-Mi‘yār al-Mu‘rib, 12:26). And as mentioned earlier, quoting from Safī al-Dīn al-Hindī, “This evidence demands that it is necessary for the layperson to subscribe to a specific madhhabat the outset.”
Statements from the Hanbalī School
Najm al-Dīn Ahmad ibn Hamdān ibn Shabīb al-Harrānī al-Misrī al-Faqīh (603 – 695 H) said:
“It is necessary for every muqallid to adhere to a specific madhhab in the most famous [view] and not make taqlīd of other than its adherents.” (al-Insāf, 11:194)
With the final clause, “and not make taqlīd of other than its adherents,” Ibn Hamdān clarifies that the obligation is to restrict oneself to the body of scholars represented by the madhhab, and not only the founder of the madhhab.
Ibn Hamdān also reproduces the statement of al-Nawawī quoting from the Ashāb in his famous work on the protocols of fatwaSifat al-Fatwāwa l-Muftī wa l-Mustaftī (al-Maktab al-Islāmī, p 72)
“The Layperson has no Madhhab”?
The statement “the layman has no madhhab” (al-‘āmmī lā madhhaba lahū) was mentioned by some scholars. This rule applies only to the situation before the codification of madhhabs, as expressed by al-Juwaynīamongst others.
Nāsir al-Dīn Abu l-‘Abbās Ahmad ibn Muhammad Ibn al-Munayyir al-Mālikī(620 – 683 H) said:
“Proof dictates [the necessity of] adherence to a specific madhhab after [the codification of the madhhabs of] the four Imāms not before them. The difference is that the people before the four Imāms did not codify their madhhabs, nor did the legal cases arise in large numbers upon them, such that the madhhab of each of them may be known in all cases or in most of them. The one who asks fatwa of al-Shāfi‘ī, for example, had no knowledge of what the mufti will say because his madhhab was not well-known in that case, or it did not arise before that so it is inconceivable that [anyone] supported it besides the mind of a specific [mufti]. As for after the madhhabs were understood, codified and became famous, and the dispensation was known from the strictures in every case, then a questioner will not alternate – when the condition is such – from madhhab to madhhab except due to an inclination to break away [from responsibility] and seeking ease.”
In this very clear passage, Ibn al-Munayyir explains that before the codification of madhhabs there was little scope to seek out the easiest opinions of the scholars. However, after the codification of the madhhabs, it would be easy to find the easiest opinion on each issue. Thus, at this time, restricting oneself to a single madhhab became necessary,as a regulatory measure. Hence, the rule, “The layperson has no madhhab” is applicable to the period before the codification of madhhabs.
Stating this explicitly, Ibn Hajar al-Haytamī from the late Shāfi‘ī school said:
“The claim that the layperson has no madhhab is rejected. Rather, taqlīd of a recognised madhhab is necessary for him. That [i.e. the layperson having no madhhab] was before the codification of madhhabs and their settlement.”
The rule “the layperson has no madhhab” also applies to those situations, times and places where it would be very difficult or even impossible to obligate a layperson to adhere to a single madhhab, due to complete ignorance or lack of access to all the positions of one madhhab. Some of the later scholars have mentioned this.
However, in normal circumstances, due to the reasons that have been explained, a layperson must adhere to a single madhhab in all its rulings.
There are strong positions in all four madhhabs on the obligation to restrict oneself to a single madhhab. Major scholars from the fifth century of Hijrah quoted consensus on this ruling. The reasons for the ruling have been explained in detail above, and will be summarised below. The scholars who in the present time strictly uphold this view are, therefore, completely justified in doing so.
There were certainly a number of latter-day scholars that tended towards the view of unrestricted taqlīd. The primary reason for this is that some influential scholars supported this opinion after the earlier consensus in opposition to it. Examples include al-Nawawī, al-Qarāfī, Ibn al-Humām and Ibn Taymiyyah. However, as mentioned earlier in the brief discussion on tatabbu‘ al-rukhas, the personal opinions of later scholars cannot supersede an earlier consensus, nor can they form the basis of the official position of the respective schools when the situation under question has remained unchanged.
Moreover, the scholars who give permission for unrestricted taqlīd generally accept the consensus on the prohibitions of tatabbu‘ al-rukhas, following desires and talfīq. Since it is almostimpossible to keep the common people from falling into these patterns, the scholars of the present time who support this view should, based on the principle of closing the avenues to impermissible ends (sadd al-dharā’i‘), put effective measures to avoid these unwanted outcomes. This can only be achieved by limiting them to choose the opinions of a single madhhab.
Summary of Main Points
Before the codification of the madhhabs, in approximately the first three centuries of Islām, the common Muslim was permitted to accept the opinions of multiple mujtahids.
The reason for this is that the common Muslim did not have access to a complete codified set of laws from any single person or school at this time, so it was not generally possible to follow a single mujtahid or school.
Because different madhhabs with detailed ruleson all chapters of jurisprudence were not yet codified or well-known,an opinion the common Muslim was exposed to was probably the only opinion on that issuehe would know. Hence, he would rarely have the option to select between different viewpoints on single issues, making it nearly impossible for him to seek out the easiest opinions from amongst the available views of mujtahid scholars and follow his desires.
After the codification of the madhhabs in approximately the fourth century of Hijrah, it became necessary for a common Muslim to restrict himself to a single madhhab which he believes to be more correct in relation to the other madhhabs
The reasons for this is that:
Firstly, each madhhab was comprehensive and complete, dealing with all the subsidiaries of Islāmic law, so unlike the early period, there was no need to refer to multiple mujtahids or madhhabs
Secondly, if given the option to select from the different madhhabs in single issues, the common Muslim would be freed of religious obligation (taklīf) and will be free to base his decisions on his whims and desires, by seeking out the easiest opinion from each school.
Thirdly, if a layperson follows multiple madhhabs in different rulings, the consequence will be a hotchpotch of legal rulings, many of which are based on conflicting juristic principles, resulting in a methodological contradiction in the outcome, even if not obviously apparent
Fourthly, a muqallid’s reasoning is limited to investigating which madhhab or mujtahid he feels is superior, and he does not have the right or ability to adjudicate between them on individual issues; thus, if he were to choose from different madhhabs without necessity, it would be based on following desires, even if the muqallid does not realise it or believe so
Fifthly, given this option, a muqallid may be led to select opinions outside of the established madhhabs that are shadhdh
Sixthly, a muqallid may not be able to observe the conditions of the different madhhabs he is following in a single case, resulting in talfīq
Major early scholars across all madhhabs before the sixth century of Hijrah have corroborated each of these points, with Qādī ‘Iyād and al-Ghazālī having quoted consensus on the obligation of adhering to a single madhhab
The opinion of some later scholars in contravention to this, when the situation has remained the same since the consensus of the early scholars, is rejected
Since there is no need to follow multiple madhhabs in this period, and there is a potential for major repercussions– prohibited by consensus – if it is permitted, it behooves all scholars to give the verdict of the obligation of restricting one’s taqlīd to a single madhhab, on the basis of prudence and practicality, and closing the avenues to unwanted ends
When some early scholars spoke of a layperson “having choice” (which was stated even by some of those scholars who obligated restricted taqlīd) or “having no madhhab”, they refer to the times and scenarios where these are applicable, such as:
If a muqallid has not yet selected a madhhab, or is in such a position that he does not have full access to any single madhhab, he may take fatwa from a scholar of any madhhab
A muqallid of a particular madhhab in some situations has the choice of accepting different fatwa positions within his school
The layperson in the era before the codification of madhhabs had no madhhab for the reasons outlined earlier
سبحنك اللهم وبحمدك، أشهد أن لا إله إلا أنت، أستغفرك وأتوب إليك
‘Allāmah Anwar Shāh Kashmīrī (1292 –1352 H) said in Fayd al-Bārī:
“It has not escaped you that Ibn Nujaym in Qadā’ al-Fawā’it and Ibn ‘Ābidin in the introduction to Radd al-Muhtār gave allowance to a dangerous slip, since they allowed an uneducated person who does not know the madhhab of anyone to ask regarding his five Salāhs from whichever scholar from the scholars of the four madhhabs he wishes, and act on whatever he wishes from their fatwas.
“This is rejected (bātil), because its consequence is that the uneducated person has no madhhab. Analogy with the matter of iqtidā’ (following an imām in Salāh) is invalid, as there is no alternative to following in iqtidā’, as distinguished from acting on the madhhabs, because it is possible for him to restrict himself to a madhhab and follow it in [all] its rulings. As for practising the madhhab of al-Shāfi‘ī (Allāh have mercy on him) in one Salāh and the madhhab of the Hanafīs in another Salāh, this is an improper way, and leads to contradiction, and has no precedent in the religion.
“Its explanation is that the rulings of one madhhab are matching with each other. I mean that there is a sequence and connection between them in the mind of the mujtahid. Thus, if these rulings are mixed-up, so at one time one acts on this and at another time on this, it will lead to contradiction, even if it does not appear to the apparent mind, because they may be built on different principles which contradict one another. So if he acts on all those rulings, he will be entangled in a contradiction without realising it, because even if those rulings are not self-contradictory, the principles on which those rulings are based are contradictory, so the contradiction is not visible between those rulings to the apparent mind, although it is verifiable with deeper thought.” (Fayd al-Bārī, 1:459; also quoted by Shaykh ‘Abd al-Fattāh Abū Ghuddah in Tarājim Sittah min Fuqahā’ al-‘Ālam al-Islāmī, Maktab al-Matbū‘āt al-Islāmiyyah, p. 73)
Islāmic Law vs. Secular Law
A common argument often produced against Islāmic law, particularly a reading of it in the manner described above, is that it is inherently a non-intellectual process that stagnated following the era of dynamic ijtihād in the first three or four centuries. Hence, it is argued, Islāmic law cannot be regarded as an asset to human civilisation and thinking, but as a formalistic – and rigid – code of laws that is unable to withstand challenges or undergo developments or adaptations to context and time. In contrast with this, it is claimed western secular law is an intellectual enterprise that may be manoeuvred through the myriad situations and specific legal cases it has to deal with in a rigorous, dynamic and fulfilling manner.
Is this argument, and this contrast between Islāmic and secular law, justified?
A close analysis of the history of Islāmic law reveals that, contrary to what is premised in this argument, taqlīd is not a stage of intellectual stagnation. In fact, taqlīd represents a higher and more developed stage of Islāmic legal thinking. The ijtihād that was a widespread activity in the first few centuries of Islām represents a great number of different ways of interpreting the original sources of Sharī‘ah – that is, the Qur’ān, Sunnah, consensus, analogy and inherited practice of the earliest generations. It is because of the successes realised by the early mujtahids in this formative period that taqlīd became the overriding legal paradigm following the third or fourth century. To introduce ijtihād at this later stage would be to “reinvent the wheel” so to speak. In secular terms, taqlīd entails fitting new legal cases into existing “precedents”. These authoritative precedents that have their roots in the Islāmic legal texts were fully codified in law schools established in the early centuries by the famous mujtahids credited with having founded them.
Contrary to the suggestion in the abovementioned argument, taqlīd does not mean intellectual stagnation or immutability and rigidity. Taqlīd did not stop the process of legal thought. Taqlīd, in fact, entailed integrating the vast set of legal rulings handed down from the early mujtahids into unified schools of law. Many processes are incorporated into this stage of development, including making further divisions to existing laws (tafrī‘), delineating exceptions to them, finding the legal causes (‘ilal) that they are premised on and so on. On this basis, taqlīd is not rigid and immutable. As it seeks to find the bases of legal rulings, this naturally entails that if there is any change to the underlying premises of any individual ruling, that would impact on the ruling itself. Based on this principle, taqlīd is adaptable and malleable to context and time.
One of the most obvious indications that taqlīd is not stagnant and formalistic is the hierarchy of Islāmic lawyers (tabaqāt al-fuqahā’) as discussed in books of Islāmic legal theory, like Nawawī’s introduction to Sharh al-Muhadhdhab and Ibn ‘Ābidīn’s Sharh ‘Uqūd Rasm al-Muftī. The reason for the hierarchy – which remains till today – is precisely because not everyone is qualified to interpret the law, even as set in the Islāmic law schools (madhhabs). Only one who has gained an understanding of how a law school operates, and which rulings are immutable and which are context-specific, can he correctly issue a legal verdict. Underscoring this principle, Ibn ‘Ābidīn emphatically states (merely two centuries ago):
جمود المفتي أو القاضي على ظاهر المنقول، مع ترك العرف والقرائن الواضحة، والجهل بأحوال الناس يلزم منه تضييع حقوق كثيرة وظلم خلق كثير
“A jurisconsult’s rigidity on the outward of what has been passed down [i.e. the legal precedents established by the early mujtahids], while simultaneously disregarding the context and obvious [external] indicators, and displaying ignorance of the situations of people, entails squandering many rights and oppressing multitudes.” (Sharh ‘Uqūd Rasm al-Muftī, Maktab al-Bushrā, p. 81)
Much more can be said on this topic, and indeed much has been written on it already. One contemporary western historian of Islāmic law, Sherman Jackson, has published his thoughts on this positive outlook on taqlīd, which directly counters earlier orientalist criticism of the Islāmic legal tradition as stagnant and formalistic. See his: “Taqlīd: Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory” in the Journal of Islamic Law and Society, Vol. 3, No. 2.
While a number of scholars have transmitted consensus on the invalidity of talfīq, one will be hard-pressed to find any clear delineation between what kinds of talfīq, if any, fall outside the scope of what has been regarded as unacceptable by consensus. However, from the examples that are offered and the reasoning that is presented, it is clear the talfīq in question is in regards to masā’il that are closely interlinked, like talfīq within the masā’il of wudū’ and salāh, or within the masā’il of marriage. If they come from different areas of practice, however, like talfīq between a mas’alah from salāh and another mas’alah from hajj, it would appear that the talfīq in question wouldnot arise.
‘Allāmah Qāsim ibn Qutlūbughā (802 – 879 H) in his al-Tashīh wa l-Tarjīh quotes Taqī al-Dīn al-Subkī (683 – 756) as saying: “Taqlīd in something that is made up of two different ijtihāds is invalid by consensus.” Then ‘Allāmah Qāsim presents the example of a person who wiped a part of his head for wudū’, making taqlīd of Imām al-Shāfi‘ī, but then offered salāh with the impurity of a dog, makingtaqlīd of Imām Mālik. The result is an action that is invalid according to both schools. (al-Tashīh wa l-Tarjīh, Dār al-Kutub al-‘Ilmiyyah, p. 123). The example of talfīq here as elsewhere illustrates that talfīq is restricted to issues that are closely interconnected. Muftī Muhammad Taqī ‘Uthmānī quotes ‘Allāmah Ashraf ‘Alī Thānawī stating this explicitly:
“Talfīq is not permissible in one action which violates consensus. But when it is two different actions, talfiq (mixing) is valid, even if it necessitates violation of consensus outwardly…” (al-Hīlat al-Nājizah li l-Halīlat al-‘Ājizah, p. 15; quoted in Usūl al-Iftā’ wa Ādābuhū, pp. 215-6)
It should be noted that although talfīq in two different nonrelated areas will not be regarded as invalid – hence, the actions will be deemed valid –, this does not mean that talfīq in this sense is permissible when there is no dire need (darūrah). On the contrary, since the obligation in this period is to adhere strinctly to a single madhhab, and not shift on individual issues(as stated by major jurists belonging to all four madhhabs),to do so will be impermissible.
And Allah Ta’āla Knows Best
Student Darul Iftaa
Checked and Approved by,
Mufti Ebrahim Desai.
المجموع شرح المهذب (1/ 290)
سَبَقَ فِي الْحَدِيثِ أَنَّ إعْفَاءَ اللِّحْيَةِ من الفظرة فَالْإِعْفَاءُ بِالْمَدِّ: قَالَ الْخَطَّابِيُّ وَغَيْرُهُ هُوَ تَوْفِيرُهَا وَتَرْكُهَا بِلَا قَصٍّ: كُرِهَ لَنَا قَصُّهَا كَفِعْلِ الْأَعَاجِمِ: قَالَ وَكَانَ مِنْ زِيِّ كِسْرَى قَصُّ اللِّحَى وَتَوْفِيرُ الشَّوَارِبِ: قَالَ الْغَزَالِيُّ فِي الْإِحْيَاءِ اخْتَلَفَ السَّلَفُ فِيمَا طَالَ مِنْ اللِّحْيَةِ فَقِيلَ لَا بَأْسَ أَنْ يَقْبِضَ عَلَيْهَا وَيَقُصَّ مَا تَحْتَ الْقَبْضَةِ: فَعَلَهُ ابْنُ عُمَرَ ثُمَّ جَمَاعَةٌ مِنْ التَّابِعِينَ: وَاسْتَحْسَنَهُ الشَّعْبِيُّ وَابْنُ سِيرِينَ. وَكَرِهَهُ الْحَسَنُ وَقَتَادَةُ: وَقَالُوا يَتْرُكُهَا عَافِيَةً لِقَوْلِهِ صَلَّى الله عليه وسلم واعفو اللِّحَى قَالَ الْغَزَالِيُّ وَالْأَمْرُ فِي هَذَا قَرِيبٌ إذَا لَمْ يَنْتَهِ إلَى تَقْصِيصِهَا لِأَنَّ الطُّولَ الْمُفْرِطَ قَدْ يُشَوِّهُ الْخِلْقَةَ هَذَا كَلَامُ الْغَزَالِيِّ وَالصَّحِيحُ كَرَاهَةُ الْأَخْذِ مِنْهَا مُطْلَقًا بَلْ يَتْرُكُهَا عَلَى حَالِهَا كَيْفَ كَانَتْ لِلْحَدِيثِ الصَّحِيحِ وَاعْفُوا اللحي واما الحديث عَمْرِو بْنِ شُعَيْبٍ عَنْ أَبِيهِ عَنْ جَدِّهِ أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ كَانَ يَأْخُذُ مِنْ لِحْيَتِهِ مِنْ عَرْضِهَا وَطُولِهَا فَرَوَاهُ الترمذي باسناد ضعيف لا يحتج به أما الْمَرْأَةُ إذَا نَبَتَتْ لَهَا لِحْيَةٌ فَيُسْتَحَبُّ حَلْقُهَا صَرَّحَ بِهِ الْقَاضِي حُسَيْنٌ وَغَيْرُهُ وَكَذَا الشَّارِبُ وَالْعَنْفَقَةُ لَهَا هَذَا مَذْهَبُنَا وَقَالَ مُحَمَّدُ بْنُ جرير لا يجوز لها حلق شئ من ذلك: ولا تغيير شئ مِنْ خِلْقَتِهَا بِزِيَادَةٍ وَلَا نَقْصٍ: وَأَمَّا الْأَخْذُ مِنْ الْحَاجِبَيْنِ إذَا طَالَا فَلَمْ أَرَ فِيهِ شَيْئًا لِأَصْحَابِنَا وَيَنْبَغِي أَنْ يُكْرَهَ لِأَنَّهُ تَغْيِيرٌ لخلق الله لم يثبت فيه شئ فَكُرِهَ: وَذَكَرَ بَعْضُ أَصْحَابِ أَحْمَدَ أَنَّهُ لَا بَأْسَ بِهِ: قَالَ وَكَانَ أَحْمَدُ يَفْعَلُهُوَحُكِيَ أَيْضًا عَنْ الْحَسَنِ الْبَصْرِيِّ: قَالَ الْغَزَالِيُّ تُكْرَهُ الزِّيَادَةُ فِي اللِّحْيَةِ وَالنَّقْصُ مِنْهَا وَهُوَ أَنْ يَزِيدَ فِي شَعْرِ الْعِذَارَيْنِ مِنْ شَعْرِ الصدغين إذا حلق رأسه أو ينزل بَعْضَ الْعِذَارَيْنِ: قَالَ وَكَذَلِكَ نَتْفُ جَانِبَيْ الْعَنْفَقَةِ وَغَيْرُ ذَلِكَ فَلَا يُغَيِّرُ شَيْئًا: وَقَالَ أَحْمَدُ بْنُ حَنْبَلٍ لَا بَأْسَ بِحَلْقِ مَا تَحْتَ حَلْقِهِ مِنْ لِحْيَتِهِ وَلَا يَقُصُّ مَا زَادَ مِنْهَا عَلَى قَبْضَةِ الْيَدِ: وَرُوِيَ نَحْوُهُ عَنْ ابن عمرو أبي هُرَيْرَةَ وَطَاوُسٍ وَمَا ذَكَرْنَاهُ أَوَّلًا هُوَ: الصَّحِيحُ وَاَللَّهُ أَعْلَمُ “Non-mujtahids” in this context refers to those who have not reached the level of “ijtihād” in all its forms, whether absolute ijtihād or restricted ijtihād, though they may be learned scholars. Tāj al-Dīn ‘Abd al-Wahhāb al-Subkī (727 – 771 H) said: “Taqlīd is to adopt a view without [detailed] knowledge of its evidence, and it is binding on the non-mujtahid.” (Jam‘ al-Jawāmi‘, Dār al-Kutub al-‘Ilmiyyah, p. 121) Al-Sayf Al-Āmidī (551 – 631 H) said: “It is binding on the layperson and the one who does not have the qualification of ijtihād – even though he has acquired some sciences that are taken into consideration for ijtihād – to follow the view of the mujtahids and to accept their fatwas according to the verifiers from the Usūlīs.” (Al-Ihkām fī Usūl al-Ahkām, Dār al-Samī‘ī, 4:278)  As explicitly stated by Qādī ‘Iyād in the passage from him quoted below.  Literally meaning “to join together”, talfīq is to make taqlīd of two or more Imāms in one issue in such a way that the resultant action is regarded as invalid by all the Imāms whose taqlīd was made.  ‘Allāmah Qāsim ibn Qutlūbughā (d. 879 H) said: “The ruling produced from talfīq is invalid by the consensus of the Muslims.” (Al-Tashīh wa l-Tarjīh ‘alā Mukhtasar al-Qudūrī, Dār al-Kutub al-‘Ilmiyyah, pp. 122-3)  Marginal and fringe opinions which were rejected and condemned by the overwhelming majority of ‘ulamā’. Examples include the permissibility of mut‘ah marriage, the permissibility of selling one silver coin for two on spot and the permissibility of musical instruments.  It is reported from Imām al-Awzā‘ī (d. 157 H) that he said: “The one who selects the rareties of the ‘ulamā’ exits Islām.” (Usūl al-Iftā’ wa Ādābuh, Makataba Ma‘ārif al-Qur’ān, p. 206) The scholars of Usūl discuss a particular situation known as ‘adam al qawl bi ‘l-fasl (the nonexistence of an opinion of distinction). If there are two issues, ‘A’ and ‘B’, and a group of scholars took opinion ‘X’ in both A and B and a second group took opinion ‘Y’ in both A and B, but there is no scholar who held the opinion of X in one and Y in the other, this is known as “‘adam al qawl bi ‘l-fasl”. Now, would it be permissible for a later scholar to adopt an opinion which makes a “distinction” between the two, i.e. opinion X in one and opinion Y in the other? The answer given by the author of Usūl al-Shāshī is that if the ruling given on B by both groups is based on the same principle on which their opinions on A was based, then it is not permissible, as to do so would be to adopt two contradictory principles. (Usūl al-Shāshī, Dār al-Gharb al-Islāmī, pp. 213-4)  Imām Ahmad al-Wanshirīsī al-Mālikī (d. 914 H) said: “What is understood from the force of the speech of these imāms – may the pleasure of Allāh be upon them – is that that which is prohibited is seeking out the easiest opinions of all the madhhabs, not a single madhhab. The verification is that there is no [apparent] distinction, but that which they made the reason for the prohibition, in that it will lead to relinquishing [religious] responsibility in every issue that is differed upon, only becomes completely apparent in the first [i.e. seeking out the easiest opinions of all the madhhabs] not the second [i.e. seeking out the easiest opinions within a madhhab]; because a matter is often prohibited in one madhhab by agreement and permissible in another by agreement or disagreement, so if we permitted seeking out dispensations from [all] the madhhabs it will lead to what they said, because what the madhhabs [all] agree upon is few. Seeking out the easiest opinions of one madhhab is not so, as it has fewer negative repercussions than the first.” (Al-Mi‘yār al-Mu‘rib, 12:32)  Ibn al-Munayyir al-Mālikī of the seventh century mentioned this point. See his quote below under the section, “The Layperson has no Madhhab”?  It is mentioned in Sahīh al-Bukhārī, for example, that the people of Madīnah would follow exclusively the verdicts of Zayd ibn Thābit. “Mujtahid imāms” refer to both “mujtahids in the madhhab” (mujtahid fi l-madhhab) who are capable of deriving new rulings based on the principles and precedents from the madhhab, and “mujtahids of fatwa” (mujtahid fi l-futyā) who have the ability to assess the stronger opinions of the madhhab.  Allāmah Ibn ‘Ābidīn proves this principle of the madhhab in his Sharh ‘Uqūd Rasm al-Muftī(Maktabat al-Buhsrā, pp. 52-3), quoting from al-Hāwī al-Qudsī and Fatāwā QādīKhān.  Kafawī said, “The leadership of the Hanafīs culminated at him.” (al-Fawā’id al-Bahiyyah, Dār al-Ma‘rifah, p. 164-6) الحق لو كان حقوقا لساغ للمقلد تقليد هذا المحتهد مرة وتقليد الآخر مرة، فكان هذا بناء الدين على الهوى، وهذا قبيح…ومن قال الحق واحد ألزم العامي أن يتبع إماما واحدا وقع عنده بدليل النظر أنه أعلم، ولا يخالفه في شيء بهوى نفسه (تقويم أصول الفقه، دار النعمان للعلوم، ج.٢ ص.٨٦٨)  He was described as one of the senior ‘Irāqī jurists and authors of Wāqi‘āt and Nawāzil (al-Fawā’id al-Bahiyyah, p. 36) وقال أبو العباس الناطفي: هذا إذا كان المستفتي على مذهب أهل العراق أفتى عالم بقول أبي حنيفة رحمه الله وأفتى عالم بقول أبي يوسف وأفتى عالم بقول محمد أو بقول زفر، فليس له أن يأخذ بقول الشافعي ولا بقول مالك (معين الحكام فيما يتردد بين الخصمين من الأحكام للطرابلسي، دار الفكر، ص.٢٧)  Al-Kafawī said: “He was amongst the mujtahids of his era.” (Fawā’id Bahiyya, p. 263) He was a student of Imām Burhān al-Dīn Marghīnānī, the author of al-Hidāyah, and is the author of Jāmi‘ Ahkām al-Sighār amongst other works. وجاز للرجل والمرأة أن ينتقل من مذهب الشافعي إلى مذهب الحنفي وكذا على العكس ولكن بالكلية، أما في مسألة واحدة فلا يمكن، حتى لو خرج دم من حنفي المذهب وسال لا يجوز له أن يصلي قبل أن يتوضأ اقتداء بمذهب الشافعي في هذه المسألة فإن صلى قبل أن يتوضأ يصفع، وقال بعضهم: ليس للعامي أن يتحول من مذهب إلى مذهب حنفيا كان أو شفعويا، وقال بعضهم: من انتقل إلى مذهب الشافعي رحمه الله ليزوجه ولي البكر البالغة بغير رضاها يخاف عليه أن يسلب إيمانه وقت موته لإهانته بالدين لجيفة قذرة (كتاب الكراهة للأسروشني، مخطوط، ص.٩/أ)  He was mufti of Sijistān, a learned Imām with extensive knowledge of both fundamentals and peripherals (al-Fawā’id al-Bahiyyah, p. 201)  العباد مأمورون بالعمل بدلائل الشرع…أما في حق عامة المسلمين فلا يكون في وسع كل أحد أن يرجح الدلائل ويجتهد لكن ينبغي أن يرجح إماما يرى ويكون متبعا له، فإذا تأمل ورجح إماما على إمام ورأى أن طريقه الحق والصواب بطل عنده قول الباقين، فلا يجوز العمل بمذهبهم كالمجتهد إذا صح عنده دليل لا يعمل بالباقي، وإنما كان كذلك لأن الناس كلهم مأمورون بالعمل بأمر الله، غير أن العلماء مأمورون بالدلائل والنظائر وترجيح أحد الدلائل والعوام مأمورون بترجيح العلماء إذ ليس في وسعهم غير ذلك، ليكون الكل ممتثلين لأمر الله تعالى (جواهر الفتاوى، مخطوط ص.٣١٧/ب-٣١٨/أ) قال فخر الدين لما سئل عن التعصب فى المذهب، قال: الصلابة فى المذهب واجب والتعصب لا يجوز، والصلابة أن يعمل بما هو مذهبه ويراه حقا وصوابا والتعصب السفاهة والجفاء في صاحب المذهب الآخر وما يرجع إلى نقصه ولا يجوز ذلك فإن أئمة المسلمين كانوا في طلب الحق وهم على الصواب (جواهر الفتاوى، ص.٣٠٩/ب)  He studied fiqh underAbūJa‘far al-Astrūshanī, and was one of the brilliant Hanafī scholars from Transoxiana. (al-Fawā’id al-Bahiyyah, p. 109) ومن جعل الحق حقوقا أثبت الخيار للعامي بهوى نفسه. ومن قال الحق في واحد ألزم العامي أن يتبع إماما واحدا وقع عنده بدليل النظر أنه أعلم ولا يخالفه في شيء بهوى نفسه (تقويم الأدلة، دار الكتب العلمية، ص.٤١٠) عامي حنفي المذهب افتصد ولم يعد الطهارة اقتداء بالشافعي في حق هذا الحكم لا يسوغ له ذلك (القنية للزاهدي، مخطوط، ص.٩٣/أ)  Author of al-Hidāyah, an Imām, hāfiz of hadīth and exegete, with innumerable virtues. He was an unmatched authority in the Hanafī madhhab. He studied under Najm al-Dīn ‘Umar al-Nasafī, al-Sadr al-Shahīd and others. (al-Fawā’id al-Bahiyyah, p. 141) رجل علق الطلاق بالتزوج ثم تزوج امرأة فاستفتى من شفعوي المذهب فأفتى على مذهبه أن لا يقع الطلاق لا يكون حجة في حقه (مختارات النوازل، مخطوط، ص.٣٦/ب) وَالْغَالِبُ أَنَّ مِثْلَ هَذِهِ إلْزَامَاتٌ مِنْهُمْ لِكَفِّ النَّاسِ عَنْ تَتَبُّعِ الرُّخَصِ وَإِلَّا أَخَذَ الْعَامِّيُّ فِي كُلِّ مَسْأَلَةٍ بِقَوْلِ مُجْتَهِدٍ قَوْلُهُ أَخَفُّ عَلَيْهِ (فتح القدير، دار الكتب العلمية، ج.٨ ص.٢٣٩) قال سليمان التيمي: لو أخذت برخصة كل عالم اجتمع فيك الشر كله؛ قال ابن عبد البر معقبا: هذا إجماع لا أعلم فيه خلافا (زجر السفهاء عن تتبع رخص الفقهاء، دار البشائر الإسلامية، ص.٥٠) ابن حزم وأبو عمر قد حكيا الإجماع ومستنده النقل، وعز الدين لم يبين مستندا فيحتمل أن يكون رأيا رآه فتفرد به، أو لازم قول وهو الظاهر من قوة كلامه، وأيا ما كان فهو إحداث قول بعد تقدم الإجماع فيكون باطلا لتضمنه تخطئة الأمة، وتخطئتها ممتنع على ما تقرر في أصول الفقه (المعيار المعرب، ج.١٢ ص.٣١)  He was the shaykh of the Shāfi‘īs in his time. Abu Sa‘d al-Sam‘ānī said: “Abu l-Ma‘ālī was the absolute imām of imāms, with consensus in the east and the west on his imāmah. Eyes have not seen the like of him.” (Siyar A‘lām al-Nubalā’, Mu’assat al-Risālah, 18:469) فإن قيل: فهل يجوز للعامي أن ينتحل في بعض المسائل مذهب الشافعي وفي بعضها مذهب أبي حنيفة، وكذا مذهب عامة الأئمة على هذا المنهاج؟ فإن قلتم: يجوز ذلك فلا يجب على أحد اتباع صاحب مذهب بعينه فلا حاجة حينئذ إلى وضع هذا الكتاب لأنه لا أرب له إلى معرفة الأحق واتباع الحق والصدق، بل يفعل ما يشاء على مذهب من يهواه ويتمناه.
فالجواب: قلنا: لا يجوز للعامي ما قلتموه، بل يجب عليه حتما أن يعين مذهبا من هذه المذاهب إما مذهب الشافعي رضي الله عنه في جميع الوقائع والفروع، وإما مذهب مالك أو مذهب أبي حنيفة أو غيرهم رضوان الله عليهم، وليس له أن ينتحل مذهب الشافعي في بعض ما يهواه ومذهب أبي حنيفة في باقي ما يرضاه، لأنا لو جوزناه لأدى ذلك إلى الخبط والخروج عن الضبط، وحاصله يرجع إلى نفي التكاليف ولا يستقر للتكليف عليه فائدة، إذ إن مذهب الشافعي إذا اقتضى تحريم شيء بعينه أو على عكسه فهو إن شاء ما إلى الحل وإن شاء مال إلى الحرمة فلا يتحقق الحل ولا التحريم، وفي هذا انعدام التكليف وإبطال فائدته واستئصال قاعدته وذلك باطل.
فإن قيل: أليس في عهد الصحابة كان الواحد من الناس مخيرا بين أن يأخذ في بعض الوقائع بمذهب الصديق وفى البعض بمذهب الفاروق، وكذا في حق عامة الصحابة في كافة الوقائع ولم يمنعوه عن ذلك؟ فإذا جازت هذه فيما بين الصحابة، فلم لا يجوز في زماننا؟
والجواب: قلنا: إنما ذلك كان كذلك لأن أصول الصحابة لم تكن كافية لعامة الوقائع شاملة لكافة المسائل مستغرقة لجميع التفاريع، مستوفية كلك التفاصيل، لأنهم أسسوا الأساس، وأصلوا الأصول، ومهدوا القواعد، ولم يتفرغوا إلى تفريع التفاريع، وتفصيل التفاصيل، فمذهب أبي بكر رضي الله عنه لم تكن كافية لجميع الوقائع، وكذلك مذهب عامة الصحابة فلأجل الضرورة أبيحت للمقلدين متابعة الصديق في بعض الوقائع، وفيما لم يجد على أصله متابعة الفاروق، وأما في زماننا هذا مذاهب الأئمة كافية مستغقة للكل، فإنه ما من واقعة تقع إلا وتجدها في مذهب الشافعي أو في مذهب غيره إما نصا وإما تخريجا، فلا ضرورة إلى اتباع الإمامين جميعا، فلا يجوز له أن ينقض تقليده إذ لا يستقر للتكليف فائدة (مغيث الخلق، المطبعة المصرية، ص.١٣-١٦) He was the shaykh of the Shāfi‘īs, a teacher of the Nizāmiyyah and one of the prime students of Imām al-Juwaynī. (Tabaqāt al-Shāfi‘iyyah al-Kubrā, 7:231) وإن لم يكن منتسبا بني على وجهين حكاهما ابن برهان في أن العامي: هل يلزمه أن يتمذهب بمذهب معين، يأخذ برخصه وعزائمه؟…والثاني: يلزمه وبه قطع أبو الحسن إلكيا، وهو جار في كل من لم يبلغ رتبة الإجتهاد من الفقهاء وأصحاب سائر العلوم، ووجهه أنه لو جاز اتباع أي مذهب شاء لأفضى إلى أن يلتقط رخص المذاهب متبعا هواه، ويتخير بين التحليل والتحريم والوجوب والجواز وذلك يؤدي إلى انحلال ربقة التكليف بخلاف العصر الأول، فإنه لم تكن المذاهب الوافية بأحكام الحوادث مهذبة وعرفت، فعلى هذا يلزم أن يجتهد فى اختيار مذهب يقلده على التعيين، ونحن نمهد له طريقا يسلكه فى احتهاده سهلا، فنقول: أولا ليس له أن يتبع في ذلك مجرد التشهي والميل إلى ما وجد عليه آباءه، وليس له التمذهب بمذهب أحد من أئمة الصحابة رضي الله عنهم وغيرهم من الأولين، وإن كانوا أعلم وأعلى درجة ممن بعدهم، لأنهم لم يتفرغوا لتدوين العلم وضبط أصوله وفروعه، فليس لأحد منهم مذهب مهذب محرر مقرر، وإنما قام بذلك من جاء بعدهم من الأئمة الناحلين لمذاهب الصابة والتابعين القائمين بتمهيد أحكام الوقائع قبل وقوعها، الناهضين بإيضاح أصولها وفروعها، كمالك وأبي حنيفة وأني حنيفة (المجموع شرح المهذب، مكتبة الإرشاد، ج.١ ص.٩٣)  He was the leading student of al-Juwaynī and a major authority in fiqh, usūl and other sciences, famed throughout the Muslim world inboth scholarly and non-scholarly circles. الشرط الرابع أن يكون كونه منكرا معلوما بغير اجتهاد، فكل ما هي في محل الاجتهاد فلا حسبة فيه. فليس للحنفي أن ينكر على الشافعي أكل الضب والضبع ومتروك التسمية، ولا للشافعي أن ينكر على الحنفي شربه النبيذ الذي ليس بمسكر وتناوله ميراث ذوى الأرحام وجلوسه في دار أخذها بشفعة الجوار إلى غير ذلك من مجارى الاجتهاد. نعم لو رأى الشافعي شافعيا يشرب النبيذ وينكح بلا ولي ويطأ زوجته فهذا في محل النظر، والأظهر أن له الحسبة والإنكار إذ لم يذهب أحد من المحصلين إلى أن المجتهد يجوز له أن يعمل بموجب اجتهاد غيره ولا أن الذي أدى اجتهاده فى التقليد إلى شخص رآه أفضل العلماء أن له أن يأخذ بمذهب غيره فينتقي من المذاهب أطيبها عنده، بل على كل مقلد اتباع مقلده في كل تفصيل فإذن مخالفته للمقلد متفق على كونه منكرا نين المحصلين وهو عاص بالمخالفة (إحياء علوم الدين، كرياطه نوترا، ج.٢ ص.٣٢١) ورأي من يرى أنه يجوز لكل مقلد أن يختار من المذاهب ما أراد غير معتد به ولعله لا يصح ذهاب ذاهب إليه أصلا، فهذا مذهب لا يثبت وإن تبت لا يعتد به (إحياء علوم الدين، ج.٢ ص.٣٢٢) لا يجوز لمقلد العالم اختيار أطيب المذاهب عنده وأوفقها لطبعه، وعليه تقليد إمامه الذي اعتقد صحة مذهبه وصوابه على غيره، ويتبعه في كل ما ورد وصدر، فلا يجوز عدول المالكي لمذهب الشافعي إلا أن يغلب على ظنه أنه أصوب رأيا فحينئذ يجب تقليده في جميع المسائل، فإن لم يكن ذلك فلا داعي له فى المخالفة إلا الهوى، كما لا يجوز لمجتهد مخالفة ما أنتجه اجتهاده، وكذا المقلد لمن قلده. ولا فرق إلا طلب المقلد أفضل الآية، والمجتهد أفضل الرأيين، ويجب على كل مسلم اتباع ما يغلب على ظنه أنه الحق فى المتعبدات. وحال المقلد يحصل بتصويب ما عليه إمامه الذي غلب على ظنه صحة قوله، كما يحصل معرفة أفضل الأطباء فى البلدان من كان جاهلا به. وهذا إما بالسماع من الأفواه، أو مشاهدة الأكثرين إلى شخص معين، أو سماعه من شخصين أو شخص حسن ظنه واطمأنه قلبه إليه، كما يسمع من أبويه فضل مالك والشافعي، فيصدق به ويطئن إليه قلبه، فلا تجوز مخالفة ظنه، ولو قال ظني في غير هذه النازلة خطأ من قلدته فليس هذا من حق المقلدين، واجتهاده في أعيان المسائل خطأ وكأنه في ظنه عرف من غير هذه المسألة ما لا يعرفه مقلده، فهو جهل. وأما اتباع الشافعي في مسألة خالف فيها صحابيا فيجب أن يظن بالشافعي أنه لم يخالفه إلا لدليلٍ أقوى من مذهب الصحابي، ولو لم يظن هذا لنسب الشافعي إلى الجهل بمقام الصحابي، وهو محال. وهذا سبب ترجيح مذهب المتأخرين على المتقدمين، مع العلم بفضل علمهم عليهم، لكون المتقدمين سمعوا الأحاديث آحاداً، وتفرقوا في البلاد، فاختلفت فتاويهم وأقضيتهم في البلاد، وربما بلغتهم الأحاديث ووقفوا عما أفتوا به أو حكموا، ولم يتفرغوا في العصر الأول لجمع الأحاديث؛ لاشتغالهم بالجهاد وتمهيد الدين، فلما انتهى الناس إلى تابعي التابعين وجدوا الإسلام مستقراً ممهداً، فصرفوا همهم إلى جمع الأحاديث من أقصى البلاد وأقطارها، بالرحلة والأسفار فالمتأخرون نظروا بعد الإحاطة بجميع موارد الأحكام، ولم يخالفوا ما أفتي به أولاً، إلا لدليل بلغهم أقوى منه (المعيار المعرب، ج.١١ ص.١٦٤-٥)  A senior Shāfi‘ī scholar who studied under both Ilkiyā al-Harrāsī and al-Ghazālī. فلو التزم مذهبا معينا كمالك والشافعي واعتقد رجحانه من حيث الإجمال، فهل يجوز أن يخالف إمامه في بعض المسائل ويأخذ بقول غيره من مجتهد آخر؟ فيه مذاهب: أحدها المنع وبه جزم الجيلي فى الإعجاز، لأن قول كل إمام مستقل بآحاد الوقائع، فلا ضرورة إلى الإنتقال إلا التشهي، ولما فيه من اتباع الترخص والتلاعب بالدين. (البحر المحيط، دار الصفوة، ج.٦ ص.٣٢٠) وهذا الدليل يقتضي أن يجب على العامي أن ينتحل مذهبا معينا ابتداء (نهاية الوصول، المكتبة التجارية، ص.٣٩٢٠) He was the greatest Shāfi‘ī jurist of his time. (Siyar A‘lām al-Nubalā’, 17:406) قال الشيخ: ينظر: إن كان منتسبا إلى مذهب بنيناه على وجهين حكاهما القاضي حسين في أن العامي هل له مدهب أم لا؟…والثاني وهو الأصح عند القفال: له مذهب فلا يجوز مخالفته (المجموع شرح المهذهب، ص.٩٣) لأنه اعتقد أن المذهب الذى انتسب إليه هو الحق ورجه على على غيره فعليه الوفاء بموجب اعتقاده ذلك، فإن كان شافعيا لم يكن له أن يستفتي حنفيا ولا يخالف إمامه (أدب المفتي والمستفتي، دار المعرفة، ص.٨٧) وهل يجوز للعامي أن يتخير ويقلد أي مذهب شاء نظر إن كان منتسباً إلى مذهب بني على وجهين حكاهما القاضي حسين في أن العامي هل له مذهب أم لا أحدهما لا لأن المذهب لعارف الأدلة فعلى هذا له أن يستفتي من شاء وأصحهما عند القفال له مذهب فلا تجوز مخالفته وإن لم يكن منتسباً بني على وجهين حكاهما ابن برهان بفتح الباء من أصحابنا في أن العامي هل يلزمه التقيد بمذهب معين أحدهما لا فعلى هذا هل له أن يقلد من شاء أم يبحث عن أسد المذاهب فيقلد أهله وجهان كالبحث عن الأعلم والثاني وبه قطع أبو الحسن إلكيا يلزمه وهو جار في كل من يبلغ رتبة الاجتهاد من الفقهاء وأصحاب سائر العلوم لئلا يتلقط رخص المذاهب بخلاف العصر الأول ولم تكن مذاهب مدونة فيتلقط رخصها فعلى هذا يلزمه أن يختار مذهباً يقلده في كل شيء وليس له التمذهب بمجرد التشهي ولا بما وجد عليه أبده هذا كلام الأصحاب والذي يقتضيه الدليل أنه لا يلزمه التمذهب بمذهب بل يستفتي من شاء أو من اتفق لكن من غير تلقط للرخص ولعل من منعه لم يثق بعدم تلقطه (روضة الطالبين، دار عالم الكتب، ج.٨ ص.١٠١)  One of the leading scholars of his time, author of the renowned and indispensable work, al-Shifā’, commentator of Sahīh Muslim, and, like al-Ghazālī, in need of no introduction. اعلموا وفقنا الله تعالى وإياكم أن حكم المتعبد بأوامر الله تعالى ونواهيه المتشرع بشريعة نبيه عليه السلام طلب معرفة ذلك وما يتعبد به، وما يأتيه ويذره، ويجب عليه ويحرم، ويباح له ويرغب فيه من كتاب الله تعالى وسنة نبيه عليه السلام، فهما الأصلان اللذان لا تعرف الشريعة إلا من قبلهما ولا يعبد الله تعالى إلا بعلمهما ثم إجماع المسلمين مرتب عليهما ومسند إليهما فلا يصح أن يوجد وينعقد إلا عنهما، إما من نص عرفوه ثم تركوا نقله، ومن اجتهاد مبني عليهما على القول بصحة الإجماع من طريق الاجتهاد، وهذا كله لا يتم إلا بعد تحقيق العلم بذلك الطريق والآلات الموصلة إليه من نقل ونظر وطلب قبله وجمع وحفظ وعلم وما صح من السنن واشتهر، ومعرفة كيف يتفهم وما به يتفهم من علم ظواهر الألفاظ وهو علم العربية واللغة وعلم معانيها وعلم موارد الشرع ومقاصده ونص الكلام وظاهره وفحواه وسائر نواحيه وهو المعبر عنه بعلم أصول الفقه وأكثره يتعلق بعلم العربية ومقاصد الكلام والخطاب، ثم يأخذ قياس ما لم ينص عليه على ما نص بالتنبيه على علته أو شبيهاً له. وهذا كله يحتاج إلى مهلة والتعبد لازم لحينه، ثم إن الواصل إلى هذا الطريق وهو طريق الاجتهاد والحكم به في الشرع قليل وأقل من القليل بعد الصدر الأول والسلف الصالح والقرون المحمودة الثلاثة وإذا كان هذا فلا بد لمن لم يبلغ هذه المنزلة من المكلفين أن يتلقى ما تعبد به وكلف به من وظائف شريعته ممن ينقله له ويعرفه به ويثبته عليه في نقله وعلمه وحكمه وهو التقليد ودرجة عوام الناس بل أكبرهم هذا، وإذا كان هذا فالواجب تقليد العالم لموثوق بذلك، فإذا كثر العلماء فالأعلم وهذا حظ المقلد من الاجتهاد لدينه ولا يترك المقلد الأعلم ويعدل إلى غيره وإن كان يشتغل بالعلم فيسأل حينئذ عما لا يعلم حتى يعلمه. قال الله تعالى: )فاسألوه أهل الذكر إن كنتم لا تعلمون( وأمر النبي صلى الله عليه وسلم بالإقتداء بالخلفاء بعده وأصحابه، وقد بعث النبي صلى الله عليه وسلم أصحابه في الناس ليفقهوهم في الدين، ولينذروا قومهم إذا رجعوا إليهم وإذا كان هذا الأمر لازماً لا بد منه فكان أولى من قلده العامي الجاهل )والمبتدىء( المتعبد والطالب المسترشد والمتفقه في دين الله تعالى وأحق بذلك فقهاء أصحاب رسول الله صلى الله عليه وسلم الذين أخذوا عنه العلم وعلموا أسباب نزول الأوامر والنواهي ووظائف الشرائع ومخارج كلامه عليه السلام. وشاهدوا قرائن ذلك وثاقبوا في أكثرها النبي عليه السلام واستفسروه عنها مع ما كانوا عليه من سعة العلم ومعرفة معاني الكلام وتنوير القلوب وانشراح الصدور، فكانوا أعلم الأمة بلا مرية وأولاهم بالتقليد لكنهم لم يتكلموا من النوازل إلا في اليسير مما وقع، ولا تفرعت عنهم المسائل ولا تكلموا من الشرع إلا في قواعد ووقائع، وكان أكثر اشتغالهم بالعمل مما علموا والذبّ عن حوزة الدين وتوكيد شريعة المسلمين ثم بينهم من الاختلاف في بعض ما تكلموا فيه ما يبقي المقلد في حيرة ويحوجه إلى نظر وتوقف، وإنما جاء التفريع التنتيج وبسط الكلام فيما يتوقع وقوعه بعدهم، فجاء التابعون فنظروا في اختلافهم وبنوا على أصولهم ثم جاء من بعدهم العلماء من أتباع التابعين، والوقائع قد كثرت والنوازل قد حدثت، والفتاوى في ذلك قد تشعبت فجمعوا أقاويل الجميع وحفظوا فقههم وبحثوا عن اختلافهم واتفاقهم وحذروا انتشار الأمر وخروج الخلاف عن الضبط فاجتهدوا في جمع السنن وضبط الأصول وسألوا فأجابوا وبنوا القواعد ومهدوا الأصول وفرعوا عليها النوازل ووضعوا في ذلك للناس التصانيف وبوبّوها، وعمل كل واحد منهم بحسب ما فتح عليه ووفق له، فانتهى إليهم علم الأصول والفروع والاختلاف والاتفاق وقاسوا على ما بلغهم ما يدل عليه ويشبه، رضي الله عن جميعهم ووفاهم أجر اجتهادهم فالمتعين على المقلد العامي وطالب العلم المبتدىء أن يرجع في التقليد لهؤلاء لنصوص نوازله والرجوع فيما أشكل من ذلك إليهم، ولاستغراق علم الشريعة ودورها عليهم وأحكامهم النظر في مذاهب من تقدمهم وكفايتهم ذلك لمن جاء بعدهم، لكن تقليد جميعهم لا يتفق في أكثر النوازل وجمهور المسائل لاختلافهم باختلاف الأصول التي بنوا عليها ولا يصلح أن، يقلد المقلد من شاء منهم على الشهوة والبحث أو على ما وجه عليه أهل قطره وآله، فحظه هنا من الاجتهاد النظر في أعلمهم ويعرف الأولى بالتقليد من جملتهم حتى يركن العامي في أعماله إلى فتواه ويجتهد في تعبداته على ما رآه وينصب العامي الأعلم من ملتزمي مذاهب هؤلاء منصبه، ولا يحل له أن يعدو في استفتائه من لا يرى مذهبه، فقد قال بعض المشائخ: إن الإمام لمن التزم تقليد مذهبه كالنبي عليه السلام مع أمته، ولا يحل له مخالفته. وهذا صحيح في الاعتبار مما بسطناه وشرطناه يظهر صوابه لأولي البصائر والأبصار وكذلك يلزم هذا طالب العلم في بدايته في درس ما أصله الأعلم من هؤلاء وفرعه وحفظ ما ألفه وجمعه والاهتداء بنظره في ذلك والميل حيث مال معه إذ لو ابتدأ الطالب في كل مسألة فطلب الوقاف على الحق منها بطريق الاجتهاد عسر عليه ذلك إذ لا يتفق له إلا بعد جمع خصاله وتناهي كماله، وإذا كان بهذا السبيل استغنى عن تقليد أرباب المذاهب وكان من المجتهدين لنفسه فسبيله أن يقلد من يعرفه أن، هذا هو الحق، حتى إذا أدرك من العلم ما قيض له وحصل منه ما قسم الله تعالى له وأفلح وكان فيه عمل للنظر والاجتهاد انتقل إلى ذلك وأدركه، فإذا تقررت هذه المقدمة فنقول: قد وقع إجماع المسلمين في أقطار الأرض على تقليد هذا النمط واتباعهم ودرس مذاهبهم دون من قبلهم ومع الاعتراف بفضل من قبلهم وسبقه ومزيد علمه، لكن للعلل التي ذكرنا وكفاية ما نحلوه وانتقوه من ذلك كما قدمنا…وصار الناس اليوم في أقطار الدنيا إلى خمسة مذاهب: مالكية وحنفية وشافعية وحنبلية وداودية وهم المعروفون بالظاهرية، فحق على طالب العلم ومريد تعرف الصواب والحق أن يعرف أولاهم بالتقليد ليعتمد على مذهبه ويسلك فى التفقه سبيله(ترتب المدارك وتقريب السالك لمشرفة أعلام مذهب مالك، المملكة المغربية، ص.٥٩-٦٧))  A major Mālikī Imām, commentator of Sahīh Muslim, and a teacher of Qādī ‘Iyād  He was a leading Hanbalī authority in his time, his most senior teacher being ‘Abd al-Qādir al-Ruhāwī (536 – 612 H). Ibn Rajab al-Hanbalī said: “Knowledge of the [Hanbalī] madhhab, its subtleties and its obscurities, reached its peak in him.” (al-Dhayl ‘alā Tabaqāt al-Hanābilah, Maktabah al-‘Abīkān, 4:267) وقال فى الرعاية الكبرى: يلزم كل مقلد أن يلتزم بمذهب معين فى الأشهر، فلا يقلد غير أهله (الإنصاف، ج.١١ ص.١٩٤) وحكى الرافعي عن أبى الفتح الهروي أحد أصحاب الإمام [الشافعي] أن مذهب عامة أصحابنا أن العامي لا مذهب له (البحر المحيط، ج.٦ ص.٣٢٠) One of the outstanding Egyptian scholars, about whom ‘Izz al-Dīn ibn ‘Abd al-Salām said: “The Egyptian lands boasts of two men on its borders: Ibn al-Munayyir in Alexandira and Ibn Daqīq al-‘Īd in al-Qaws.” (Editor’s introduction to al-Taysīr al-‘Ajīb fi Tafsīr al-Gharīb, Dār al-Gharb al-Islāmī, p. 17) وتوسط ابن المنير فقال: الدليل يقتضي التزام مذهب معين بعد الأئمة الأربعة لا قبلهم، والفرق أن الناس كانوا قبل الأئمة الأربعة لم يدونوا مذاهبهم ولا كثرت الوقائع عليهم، حتى عرف مذهب كل واحد منهم في كل الوقائع وفي أكثرها، وكان الذي يستفتى الشافعي مثلا لا علم له بما يقوله المفتي، لأنه لم يشتهر مذهبه في تلك الواقعة، أو لأنها ما وقعت له قبل ذلك، فلا يتصور أن يعضده إلا سر خاص، وأما بعد أن فهمت المذاهب ودونت واشتهرت وعرف المرخص من المشدد في كل واقعة، فلا ينتقل المستفتي والحالة هذه من مذهب إلى مذهب إلا ركونا إلى الانحلال والاستسهال (البحر المحيط، ج.٦ ص.٣١٩-٢٠) وزعم أن العامي لا مذهب له ممنوع بل يلزمه تقليد مذهب معتبر، وذاك إنما كان قبل تدوين المذاهب واستقرارها (تحفة المحتاج بشرح المنهاج، دار الكتب العلمية، ج.١ ص.٤٨٧) قال عن العلامة أبي بكر بن أبي قاسم الأهدل: وما أفتى به من أن العامي لا مذهب له معين تكاد أن تتعين الفتوى به في حق العوام في هذه الأزمنة، وإن كان عن المتأخرين المصحح من أنه يجب عليه التزام مذهب معين، لكن من خبر حال العوام في هذا الزمان، سيما أهل البوادي منهم، جزم بأن تكليفهم التزام مذهب معين قريب من المستحيل (مختصر الفوائد المكية، دار البشائر الإسلامية، ص.٤٨) ثم لا يذهب عليك أن ابن نُجَيم في باب قضاء الفوائت، وابنَ عابدين في مقدمة «رد المحتار» وسَّعًا سهوًا مُضِرًا، حيث وسَّها للأُمِّيِّ الذي لا يعلم مذهبَ أحدٍ أن يستفتيَ في صلواته الخمسِ أيَّ عالم من علماء المذاهب الأربعة شاء، ويعمل بما شاء من فتاواهم.
أقول: وهذا باطل، فإِنَّ حاصله: أن الأُمِّيِّ ليس له مذهب والقياس على مسألة الاقتداء فاسد، فإِن الاقتداء لا مناص فيه عن المتابعة، بخلاف العمل بالمذاهب فإِن له أن يتقيد بمذهب ويتابعه في مسائله. أما العمل بمذهب الشافعي رحمه الله تعالى في صلاة، وبمذهب الحنفية في صلاة أخرى، فمسلكٌ غيرُ مستقيم، والتزام للتناقض، ولا نظير له في الدِّين.
وتحقيقه: أنَّ المسائلَ من مذهب واحدٍ تكون مُتَّسِقَة، أعني به أنه تكون بينها سلسلة وارتباط في ذهن المجتهد، فإِذا خلط في هذه المسائل، فيعمل تارةً بهذا وأخرى بهذا، يلزم التناقض، وإن لم يَبْدُ في بادىء الرأي، لأنها ربما تبنى على أصول مختلفة يخالف أحدهما الآخر، فإِذا عمل بتلك المسائل كلها ابتلي بالتناقض من حيث لا يدريه، فإِن تلك المسائل وإن لم تكن متناقضة إلا أن الأصول التي تتفرع عليها تلك المسائل تكون متناقضة، فلا يلوح التناقض بين تلك المسائل في بادىء الرأي مع أنه متحقق بعد الإِمعان (فيض الباري، دار الكتب العلمية، ج.١ ص.٤٥٩)
Menstruation (Female Masail)
Is it permissible for a woman to take medicine to prevent menstruation so as to be able to fast the whole of Ramadan?
Among the established rulings in Islamic law is that a Muslim woman must break her fast in Ramadan when she gets her monthly period due to the exhaustion and physiological disturbances associated with menstruation. For this reason, it is obligatory for a menstruating woman not to fast—it is a mercy from Allah Almighty.
What some women do nowadays—eating very small amounts of food or drinking and then refraining from eating for the rest of the day—contravenes the wisdom behind relieving women from the obligation of fasting and preserving their physical and psychological health.
A woman is required eat and drink when in her monthly period; she does not sin nor is she blameworthy because she will later make up the missed fast-days. as ‘Aisha, the Mother of the Believers, said: “When we were with the Prophet [pbuh] , we used to experience menstruation and were commanded to make up the [missed] fast-days but not prayers” [Bukhari and Muslim].
There is no legal objection to taking medicine or pills to delay menstruation and allowing a woman to complete the fast-days of Ramadan without any interruptions. It is permissible for a woman to resort to such a practice on the condition that a physician determines that this will not harm her at any time. If it does, then it is unlawful to take medicine to delay menstruation because of the legal maxim which states; “Do not harm and do not reciprocate harm” and because the preservation of health is one of the exigencies of the objectives of Islamic law.
Even though it is permissible for a woman to delay menstruation to fast Ramadan, it is better for her to abide by the commands of Allah Almighty and submit to His decree as this earns her a greater reward.
Allah Almighty knows best.
Assalaamu alaykum. I know of a particular family which consists of 3 daughters and their parents. Each year, during Ramadaan, if any of the daughters is unable to fast due to menstruation, they do not make up for those fasts after Ramadaan as they claim that their father “pays money on their behalf” to make up for the missed fasts. As far as I am aware, anyone who is physically able to fast and has outstanding days to fast should do so by fasting instead of “paying money”. Is there any such ruling where paying money towards the poor or as zakah or feeding the poor on behalf of others’ missed fasts is permissible? If this is not allowed, what is the correct means of women making up the missed days if they are physically able to do so? Thank you for your time in answering my question. May Allah reward you richly for your efforts Insha Allah.
Fasting is unlawful for a woman who is menstruating. Imam Bukhari relates that the Prophet Muhammad said, “Is it not that when they menstruate they do not pray or fast?” (Sahih al-Bukhari v. 1, p. 86) Moreover, the Muslims have reached a consensus [ijma’] that it is unlawful for a menstruating woman to fast. (Sharh al-Muhadhdhab v. 2, p. 386; Sharh Sahih Muslim v. 4, p. 595)
As well, making up fasts missed due to a menstrual cycle is obligatory. Imam Muslim relates that the Prophet Muhammad would command women who had menses to make up the fasts. (Sahih Muslim v. 4, p. 594-95) Additionally, the Muslims have reached a consensus [ijma’] that Ramadan fasts missed due to a menstrual period must be made up. (Sharh al-Muhadhdhab v. 2, p. 386; Sharh Sahih Muslim v. 4, p. 595)
To our knowledge there is no dissenting view on the matter. Thus, both ijma’ and clear, well-authentic hadith are definitive evidence that a woman must make up her Ramadan fasts missed because of her menstrual period.
And Allah knows best.
Shafiifiqh.com Fatwa Dept.
I live in Canada and here the facility has been provided by the government to all residents for buying houses on mortgage (interest bearing loan). Being a muslim, I understand that mortgage is not allowed because of interest (Ribā). I would like to mention a few issues and seek your opinion on the subject matter:
1. Not everyone has huge amount of money to buy the house on cash payment. If the facility of mortgage is not used, majority of Muslims can never have a house in North America (including USA and Canada). I am sure our religion is quite accommodating in all aspects of life and as such there ought to be a way for buying a house in these countries, living within the boundaries ordained by Allah (SWT) .
2. Definition of interest (Ribā) needs to be revisited. In my humble opinion, interest in early days was used as a source of exploitation of needy and poor people. Nowadays, banking system has become a part of our lives, including for Muslims in Islamic countries. It is a internationally recognized business, open to all on equal footing and apparently, no one is discriminated.
3. I personally believe that our religion is very accommodating and it looks for the welfare of each and everyone living on this earth. Having a house of ones own falls under the welfare system of the society.
4. Our religion allows for ijtehad on all important matters including and mortgage is surely one of the very important issues in western countries, USA and Canada.
5. There is an urgent need of consensus of Islamic Scholars on this issue, particularly for the Muslims living in North America and Europe.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
We are in receipt of your question. Your email refers:
At the outset we wish place on record that we understand the need and concern with which you have approached us. We are also aware of the challenges of life, especially in the western environment. Islam is indeed a Deen which provides solution for all conditions and times. We need to reach out and bring these solutions into reality. It may be very tasking and hard to give practicality to these solutions, but it is definitely not impossible. We may face some hurdles and some difficulties in the beginning, but in the end perseverance will pay off.
Much of the concerns you have brought forth have been already dealt with by luminaries like Mufti Taqi Uthmani Saheb. There are two basic works of Mufti Taqi Saheb in which he has laid down the theoretical workings of a Sharī῾ah Compliant model for Islamic Finance. We will be citing majorly from these two sources.
It is hoped that through individuals with vigor and zeal, such as yourself for a Sharī῾ah Compliant solution to the modern day Economic dilemmas, we can steer the conventional economic trends into right direction, inshā’Allah.
Your question has 3 aspects:
a. Ribā, its definition and correct understanding in the light of Qur’ān and Sunnah.
b. Owning a house is a “need” of every muslim. Hence, depriving anyone of the means to own a house is depriving him of a basic necessity.
c. Since our religion is accommodating, it must have provided some way to tackle these issues.
a. Definition of Ribā’ (interest):
Mufti Taqi Uthmani establishes a chapter titled “What is Meant by Ribā?” on the definition and the concept of Ribā in “The text of the Historic Judgment on Interest”. Mufti Taqi Saheb sites this concept from the famous exegete Allamah Fakhrud dīn Rāzi rahmatullah alayh,
“As for the Ribā An-Nasiah, it was a transaction well-known and recognized in the days of Jahiliyya i.e. they used to give money with a condition that they will charge a particular amount monthly and the principal will remain due as it is. Then on the maturity date they demanded the debtor to pay the principal. If he could not pay, they would increase the term and the payable amount. So it was the Ribā practiced by the people of Jahiliyya. (Tafsir Fakhrud din Razi 7/72)” Thereafter Mufti Taqi presents some arguments and their answers which are commonly generally put forward to present the ribā in a different light. We present a brief summary of these arguments.
Argument 1: Ribā which was prohibited by the Holy Qur’an was only confined to a particular transaction in which no increase used to be stipulated at the time of advancing a loan. This is to say that the lender would not stipulate any increase in the principle at the time of advancing the loan, however, if the loan was not returned in time then the loanee will be given an option to either settle the debt, or pay additional on top of the principle.
Answer 1: This argument is invalid because the nature of transactions in the time of Jahiliyyah differed.
Some transactions did stipulate the increase in the core transaction itself as mentioned by Allāmah Jassās in his Tafsīr.
“And the Ribā which was known to and practiced by the Arabs was that they used to advance loan in the form of Dirham (silver coin) or Dinar (gold coin) for a certain term with an agreed increase on the amount of the principal advanced.” (Ahkām al Qur’ān lil Jassas 2/184)  Other transactions would include a monthly payment on the principle, as shown by the citation from Tafsīr Fakhrud dīn Rāzi cited above.
Yet another form of Ribā is what has been presented in the argument. However, this transaction did not use to be a loan transaction, rather a deferred sale transaction. Upon maturity, if the purchaser defaults on the payment then the seller would increase on the payment and thus collect interest money over and above the principle. This is detailed in Tafsīr Tabari of Imān ibn Jarīr Tabarī as well as other tafsīrs.
“The Ribā of Jahiliyya was a transaction whereby a person used to sell a commodity for a price payable at a future specific date, thereafter when the date of payment came and the buyer was not able to pay, the seller used to increase the amount due and give him more time.” (Tafsīr Tabarī 6/8)  Argument 2: The concept of Ribā remained ambiguous till the demise of Rasulullah salallāhu ‘alayhi wasallam. This is normally supported by the statement of Sayiduna ῾Umar radiallahu anhu that, “the verses of Ribā were among the “last verses of the Holy Qur’an and the Holy Prophet, Sall-Allahu alayhi wa sallam, passed away before he could explain them to us, therefore, avoid Ribā and everything which is doubtful.”
The statement of Sayiduna ῾Umar radiallahu anhu is mentioned in Bukharī Sharīf.
“There are three things about which I wished that the Holy Prophet, Sall-Allahu alayhi wa sallam, did not leave us before explaining them to us in detail: the inheritance of grandfather and the inheritance of Kalalah (a person who has left neither a father nor a son) and some issues relating to Ribā.” (Sahih Bukhārī #5588) This argument that the matters of interest were left ambiguous even after the demise of Rasulullah salallāhu ‘alayhi wasallam is also miscalculated because of the clear statement of Sayiduna ῾Umar radiallahu anhu saying,
“You think that we do not know about any issue from the issues of Ribā – and no doubt I would love to know all these issues’ more than I would like to own a country like Egypt with all its habitations – but there are many issues (about Ribā) which cannot be unknown to any one e.g. purchasing gold for silver on deferred payment basis.” (Musannaf Abdur Razzāq #14161) A clear reading of these narrations shows that it is understood that doubt shown by Sayiduna Umar radiallahu anhu is not about the Ribā which is mentioned in the Qur’ān (Ribā Nasī’ah) rather it refers to Ribā Fadhl. Moreover, once we read further into the opinions of the fuqahā’ among sahāba radiallahu anhum and Imams of the Fiqh (such as Imam Abu Hanifa and Imam Shafī῾ī rahimahumullah), we would realize that the grey areas in Ribā Fadhl were monumental in the difference of opinion between these fuqahā.
To understand the difference between Ribā Nasī’ah and Ribā Fadhl we must know that the prohibition of Qur’ān covered all the prevalent form of ribā through credits or through sale. However, Nabī salallāhu ‘alayhi wasallam also prohibited some other forms of sales under the same chapter of interest. Rasulullah salallāhu ‘alayhi wasallam said,
“Gold for gold, silver for silver, wheat for wheat, barley for barley, date for date, salt for salt, must be equal on both sides and hand to hand. Whoever pays more or demands more (on either side) indulges in Ribā.” (Sahih Muslim #1584 ) This raised the concern and contention among the early jurists. Would Ribā Fadhl be limited to only the six things explicitly mentioned in the above hadīth or would it also flow into other commodities being traded. This was the doubt which Sayiduna Umar radiallahu anhu had wished that Rasulullah salallāhu ‘alayhi wasallam would have cleared before his demise.
Argument 3: The prohibition of Ribā is only limited to Consumption loans where the borrowers are poor people procuring loans to fulfill the daily expenses since it exploits their need. It is argued that since the Productive loans were not in practice at that time, the Qur’ānic prohibition did not govern such loans. Moreover, in these productive loans, the loanee are primarily rich who face no exploitation or injustice from the interest imposed on them.
a. No transaction in Islamic Law is governed by the financial position of either of the transacting parties. This means that if we assume an interest bearing transaction to be permissible in which both parties are affluent, then a similar transaction where one of the transacting parties is poor will also have to be intrinsically permissible. The poverty factor does not affect the validity of this transaction. The most we can expect is that the poor should be given concession or discount to accommodate his financial poverty. However in this case, this concession will have to be purely voluntary and not an obligation.
A bread maker has to charge a profit on his product whether the purchaser is rich or poor. He cannot be forced to waive off his profit simply because the purchaser is poor. If he is forced to provide it free of cost or even at cost price, then he will not be able to run his business. By asserting that the prohibition in the Qur’ān is due to the exploitation of the poor, we will have to also affirm that charging a profit on a commodity from the poor is also an exploitation of his financial position. Intrinsically both these conditions are same, yet no one has ever claimed that profit charged on commodities to the poor is harām and impermissible.
This tells us that the issue of charging profit in a sale, rests on the intrinsic correctness of a transaction. As long as the intrinsic transaction is correct and valid, the profit or fee charged on it is completely permissible. Following this logic, charging interest ought to be no different. As long as the intrinsic transaction was valid, the profit ought to be permissible and the financial position of the transacting party would not play any role. Yet, in all the transactions, the Qur’ān prohibits interest whether the transacting party is poor or rich.
b. The prohibition in Qur’ānic verses is generic encompassing all its forms. There is no specification presented in the verses that it is to be restricted to specific form and not the others.
c. This argument rests on the assumption that there were no Productive Loans in vogue at the time of Rasulullah salallāhu ‘alayhi wasallam. This is a fatal flaw of this argument. There are ample examples in historical records enumerating productive loans. We shall mention only two and urge everyone to read the detail account of it in Mufti Taqi Uthmani’s book.
“What the historians have narrated about the caravans of Makkah reveals that the capital of a caravan never used to be the capital of one individual or a particular family; it rather belonged to the traders of different families and to those individuals who themselves had money or had borrowed it from others and had contributed it to the capital of the caravan, with a hope to earn huge profit.”  The above is a clear example of commercial loan.
“The tribe of Banu Amr used to charge interest from the tribe of Banu al-Mughirah and Banu al-Mughirah used to pay them interest.” (Tafsir Ibn Jarir Tabari 6/23) The above text clearly shows that charging of interest was not limited to individual transactions rather have a more commercial basis as well.
Hence to assert that the prohibition could not have been targeting commercial loans is inconceivable in presence of numerous such examples which establish productive loans.
Argument 4: The Ribā in question is not interest rather usury (exorbitant interest rates). The Ayah in Surah āl-Imrān is used to support this argument. Allah says,
يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا الرِّبَا أَضْعَافًا مُضَاعَفَةً وَاتَّقُوا اللَّهَ لَعَلَّكُمْ تُفْلِحُونَ
“O ye who believe! devour not Usury, doubled and multiplied; but fear Allah;
that ye may (really) prosper.” [Āl-῾Imrān 3:130]
The argument uses the wording of the above Ayah “doubled and multiplied” to assert that only those transactions with exorbitant interest are prohibited and as long as the interest rate is not so excessive, it will be permissible. This argument would further state that the rates in current banking systems are normally not exorbitant, hence permissible.
The above argument chooses an isolated verse to justify an interpretation around it without looking at the different verses revealed in this context. Hence it is important to review all the verses on the subject and see the clarity of ruling on the issue. In Surah Baqarah, Allah says,
يَا أَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ وَذَرُوا مَا بَقِيَ مِنَ الرِّبَا إِنْ كُنْتُمْ مُؤْمِنِينَ
“O those who believe fear Allah and give up whatever remains of Ribā, if you are believers.” [Al-Baqarah 2:278] The words “whatever remains of Ribā” shows that that every amount beyond the principle has Ribā. This point becomes explicitly clear from the following verse
وَإِنْ تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ
“And if you repent (from the practice of Ribā) then you are entitled to get back your principal.” [Al-Baqarah 2:279] This Qur’ānic refutation of this incorrect assertion is further strengthened by the wordings of Rasulullah salallāhu ‘alayhi wasallam in the Last Sermon.
“Listen, every amount of interest that was due in Jahiliyya is now declared void for you in its entirety. You are entitled only to your principal whereby neither you wrong nor be wronged. And the first liability of interest declared to be void is the interest of Abbas ibn Abd-ul-Muttalib which is hereby declared void in its entirety.”
We hope that the above summary of pertinent points sufficiently explains the confusions and doubts about use of interest in Banking today. The prohibition of any amount of interest in the commercial or personal nature, remains intact, affirmed and well grounded in light of Sharī῾ah.
b. Owning a house is a “need” of every muslim. Hence, depriving anyone of the means to own a house is depriving him of a basic necessity.
No doubt that Islam relaxes the rules for the followers in time of necessity, but we need to make sure that the “need” is correctly identified. Mufti Taqi Uthmani mentions:
“…before deciding an issue on the basis of necessity one must make sure that the necessity is real and not exaggerated by imaginary apprehensions and that the necessity cannot be met with by any other means than committing an impermissible act.” It is our humble opinion that the “need” of owning a house is also such an exaggerated necessity which has an equal and viable alternative of “renting”. To substantiate this we request you to do a quick search on rent/own ratios. In the wake of the recent credit crunch, mortgage rates have fluctuated drastically making it almost equally viable or more lucrative to rent a house than buying on.
” Canadian house prices have rebounded markedly from the depths of the recession, hitting a fresh record in may and bringing the buy/rent ratio to about 1.85x. That means that, even excluding major factors such as taxes and maintenance, homeowners pay about twice what renters pay.
Record low mortgage rates in the U.S. mean that house values are at all-time highs, relative to the competing asset class of rent, so U.S. housing offers great opportunity for both renters and investors,” they said. “In Canada, a house may make a great long-term home, but the buy/rent ratio suggests Canadian real is vulnerable to a hike in mortgage rates.”  Although this may not be the general trend, nonetheless it supports our argument that renting has been and continues to be a choice for those who cannot afford purchasing a house.
The question however lingers as to why would one need to look into buying if one is not even able to do so. Commuting is one of the bare necessities nowadays, but a person who is unable to even rent a vehicle, willingly or unwillingly lives his life by commuting through public transport, busses, tubes, or trams. In effect the choice to own a vehicle, in most cases, becomes a choice of convenience and luxury of freedom. In such a case, entering into an interest based lease agreement to own a vehicle does not compute well with rational reasoning.
Similarly, in the housing sector too, renting has been a common norm of the middle and lower level income earners. It does not seems rational for one who cannot afford to purchase a house to enter into an interest based transaction to secure one. In no way are we against the idea of owning a house. Indeed, it is a convenience which one aspires for. It has benefits which are sought after so logically everyone would yearn to have this freedom. Our only contention is that this freedom and convenience should not come with the price of one’s Deen.
c. Since our religion is accommodating, it must have provided some way to tackle these issues.
This brings us to the third aspect of your question. In fact, Islamic Finance has come a long way in devising suitable housing plans for those middle income sector. These financial schemes are aimed directly at those who would look into securing a house through mortgage otherwise.
Mufti Taqi Uthmani Saheb has detailed out a considerable portion of his book, “Introduction to Islamic Finance” to such financial schemes. In particular the “Diminishing Musharakah” model has been adopted in many Islamic Financial Houses in quite a few different types. Mufti Ismail Moosa explains this model as follows:
“A general method of house financing adopted by many financial homes is that of ‘DIMINISHING MUSHAARAKAH.’ In essence, this is a transaction where the financier (institution) purchases the house in partnership with the client. The client pays the amount which he can afford whilst the institution will purchase the remaining portion. For example, the client is only able to pay for 10% of the house; the financier will pay and take ownership of the remaining 90% of the house. Once the house is purchased, the client will use the entire house for residential purposes and pay rent to the institution for using its portion in the property (i.e. 90% of the house which it owns).
Furthermore, the institutions portion of the house will be divided into units; each unit will represent 10% (thus, in this case, its portion will be divided into nine units). The institution and client will agree on certain periods in which the client will buy a unit (e.g. every three months the client will buy one unit). After purchasing a unit, the client’s portion of the property will increase while the institutions share in the property will reduce (i.e. after purchasing the first unit, the client will own 20% and the institutions portion will reduce to 80%). Accordingly, the rent will also be reduced. This process continues until the client purchases the entire property reducing the institutions ownership to 0%. In this way the institution will receive its money back by selling the units, in addition to receiving a profit through the periodical rent which the client pays.
Scholars have placed a few conditions to the above contract in order for it to be valid. Failure to abide by even one of these conditions will render the entire transaction impermissible. Therefore, every bank contract will have to be closely studied by the Scholars in order to issue the relevant ruling of Sharī῾ah.
There are numerous errors which are common in the above-mentioned transaction. Some are as follows….
1) Many times the contracting parties fail to separate the various transactions of ijārah, bai῾ etc from the contract. This is forbidden in Sharī῾ah.
2) It is a condition that an ijāb and qūbūl (offer and acceptance) is carried out when selling every unit. This condition is ignored by many of those who opt to carry out this transaction.
Nevertheless, due to the intricacies involved in house financing, we recommend and stress that you review the entire contract with a qualified Scholar who is an expert in business economics before going into the transaction.”
You may also read complete detail from Mufti Taqi Uthmani from his book at: An introduction to Islamic Finance
Luminaries like Mufti Taqi Uthmani have indeed provided us these viable alternatives, but their correct implementation and review remains a challenge. While we may direct you to a particular theory, it may become futile without a suitable financier to carry it out and implement it in Sharī῾ah Compliant manner. What is desired for the promising sector of Islamic Finance in the near future is implementation of a thorough and independent Sharī῾ah Advisory. Mufti Ebrahim Desai lays down some basic guidelines about these Advisory bodies in one of his answers as follows:
“In order for a house finance scheme to be Sharī῾ah Compliant the following is essential.
1) The contract must be Sharī῾ah Compliant. This is the fundamental requirement in Sharī῾ah Compliance and probably the most difficult. It requires the expertise of competent Ulama as well as experts in business and economics. The underlying spirit of the contract must be total Sharī῾ah Compliancy.
2) The implementation of the contract is equally important. If one has a Sharī῾ah Compliant Contract but that is not correctly implemented, then the contract does not mean anything. Any deviation from the contract will impact negatively on the Sharī῾ah Compliancy of the deal.
3) The names of renowned Ulama being on the Sharī῾ah Board of different schemes is not sufficient.
4) The expert Ulama should be involved from the beginning till the end. They should be involved in drawing up the scheme and being confident of the scheme being 100% correct. They should also supervise the Sharī῾ah implementation of the scheme.
5) The Ulama on board should be independent and free to raise any Sharī῾ah related objections against the Scheme. It will be ideal that the Ulama’s contribution be gratis or if there is a need to remunerate the Ulama, then that be arranged via the independent body and not the Bank as that will ensure the independence of the Ulama. In such an instance they will not be forced to compromise due to unforeseen circumstances.” With the correct Sharī῾ah Board in place to supervise the scheme, we are confident that a viable and practical alternative for Conventional Mortgages will be achieved and renting alone will not remain the only solution in this matter.
And Allah Ta’āla Knows Best
Mawlana Faisal bin Abdul Hameed
Student, Darul Iftaa
Checked and Approved by,
Mufti Ebrahim Desai
 وَالرِّبَا الَّذِي كَانَتْ الْعَرَبُ تعرفه وتفعله إنما كان قرض والدراهم وَالدَّنَانِيرِ إلَى أَجَلٍ بِزِيَادَةٍ عَلَى مِقْدَارِ مَا اُسْتُقْرِضَ عَلَى مَا يَتَرَاضَوْنَ بِهِ (أحكام القرآن للجصاص ت قمحاوي (2/ 184) دار إحياء التراث العربي)
 أخرج الفريابي عن مجاهد قال: كانوا يبتاعون إلى الأجل، فإذا حل الأجل، زادوا عليهم، وزادوا في الأجل، فنزلت: يا أَيُّهَا الَّذِينَ آمَنُوا لا تَأْكُلُوا الرِّبَوا أَضْعافاً مُضاعَفَةً (كما فى التفسير المنير للزحيلي (4/ 82))
وفى فتح القدير للشوكاني – وَابْنُ أَبِي حَاتِمٍ عَنْ مُجَاهِدٍ: قَالَ: كَانُوا يَتَبَايَعُونَ إِلَى الْأَجَلِ، فَإِذَا جَاءَ الْأَجَلُ زَادُوا عليهم وزادوا في الأجل ((1/ 438) دار ابن كثير)
وفى التفسير المظهري – اخرج الفرياني عن مجاهد قال كانوا يتبايعون الى الاجل فاذا حل الاجل زادوا عليهم وزادوا فى الاجل (2 ق 1/ 136)
 عن قتادة: أن ربا أهل الجاهلية: يبيعُ الرجل البيع إلى أجل مسمًّى، فإذا حل الأجل ولم يكن عند صاحبه قضاء، زاده وأخَّر عنه. (تفسير الطبري (6/ 8) ، مؤسسة الرسالة)
 حَدَّثَنَا أَحْمَدُ ابْنُ أَبِي رَجَاءٍ، حَدَّثَنَا يَحْيَى، عَنْ أَبِي حَيَّانَ التَّيْمِيِّ، عَنِ الشَّعْبِيِّ، عَنِ ابْنِ عُمَرَ رَضِيَ اللَّهُ عَنْهُمَا، قَالَ: خَطَبَ عُمَرُ، عَلَى مِنْبَرِ رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ فَقَالَ: ” إِنَّهُ قَدْ نَزَلَ تَحْرِيمُ الخَمْرِ وَهِيَ مِنْ خَمْسَةِ أَشْيَاءَ: العِنَبِ وَالتَّمْرِ وَالحِنْطَةِ وَالشَّعِيرِ وَالعَسَلِ، وَالخَمْرُ مَا خَامَرَ العَقْلَ. وَثَلاَثٌ، وَدِدْتُ أَنَّ رَسُولَ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ لَمْ يُفَارِقْنَا حَتَّى يَعْهَدَ إِلَيْنَا عَهْدًا: الجَدُّ، وَالكَلاَلَةُ، وَأَبْوَابٌ مِنْ أَبْوَابِ الرِّبَا ” قَالَ: قُلْتُ يَا أَبَا عَمْرٍو، فَشَيْءٌ يُصْنَعُ بِالسِّنْدِ مِنَ الأُرْزِ؟ قَالَ: ” ذَاكَ لَمْ يَكُنْ عَلَى عَهْدِ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ – أَوْ قَالَ: – عَلَى عَهْدِ عُمَرَ ” وَقَالَ حَجَّاجٌ: عَنْ حَمَّادٍ، عَنْ أَبِي حَيَّانَ: «مَكَانَ العِنَبِ الزَّبِيبَ» (صحيح البخاري (7/ 106) دار طوق النجاة)
 عَبْدُ الرَّزَّاقِ قَالَ: أَخْبَرَنَا ابْنُ عُيَيْنَةَ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ عَبْدِ اللَّهِ، عَنِ الْقَاسِمِ بْنِ مُحَمَّدٍ قَالَ: قَالَ عُمَرُ بْنُ الْخَطَّابِ: ” إِنَّكُمْ تَزْعُمُونَ أَنَّا لَا نَعْلَمُ أَبْوَابَ الرِّبَا، وَلَأَنْ أَكُونَ أَعْلَمُهَا أَحَبَّ إِلَيَّ مِنْ أَنْ يَكُونَ لِي مِثْلُ مِصْرَ وَكُوَرِهَا، وَمِنَ الْأُمُورِ أُمُورٌ لَا يَكُنَّ يُخْفَيْنَ عَلَى أَحَدٍ: هُوَ أَنْ يَبْتَاعَ الذَّهَبَ بِالْوَرِقِ نَسِيئًا، وَأَنْ يَبْتَاعَ الثَّمَرَةَ وَهِيَ مُعَصْفَرَةٌ لَمْ تَطِبْ، وَأَنْ يُسْلِمَ فِي سِنٍّ ” (مصنف عبد الرزاق الصنعاني (8/ 26) المكتب الإسلامي)
 حَدَّثَنَا أَبُو بَكْرِ بْنُ أَبِي شَيْبَةَ، حَدَّثَنَا وَكِيعٌ، حَدَّثَنَا إِسْمَاعِيلُ بْنُ مُسْلِمٍ الْعَبْدِيُّ، حَدَّثَنَا أَبُو الْمُتَوَكِّلِ النَّاجِيُّ، عَنْ أَبِي سَعِيدٍ الْخُدْرِيِّ، قَالَ: قَالَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: «الذَّهَبُ بِالذَّهَبِ، وَالْفِضَّةُ بِالْفِضَّةِ، وَالْبُرُّ بِالْبُرِّ، وَالشَّعِيرُ بِالشَّعِيرِ، وَالتَّمْرُ بِالتَّمْرِ، وَالْمِلْحُ بِالْمِلْحِ، مِثْلًا بِمِثْلٍ، يَدًا بِيَدٍ، فَمَنْ زَادَ، أَوِ اسْتَزَادَ، فَقَدْ أَرْبَى، الْآخِذُ وَالْمُعْطِي فِيهِ سَوَاءٌ» (صحيح مسلم (3/ 1211) دار إحياء التراث العربي)
 Read the entire “The Text of the Historic Judgment on Interest” at http://daruliftaa.net/Book/histinterest.html
 و يظهر مما ذكره اهل الاخبار و اوردوه عن قوافل مكة ان مال القافلة لم يكن مال رجل واحد ، أو أسرة معينة بل كان يخض تجارا من أسر مختلفة ، و أفرادا وجد عندهم المال ، أو اقتر ضوه من غيرهم فرموه فى رأس مال القافة أملا فى ربح كبير
 كانت بنو عمرو بن عُمير بن عوف يأخذون الرِّبا من بني المغيرة، وكانت بنو المغيرة يُرْبون لهم في الجاهلية(تفسير الطبري (6/ 23) مؤسسة الرسالة)
 http://www.theglobeandmail.com/report-on-business/top-business-stories/housing-buyrent-ratio-shows-real-estate-vulnerable/article1761838/ accessed April 2nd 2012.
 http://www.askimam.org/fatwa/fatwa.php?askid=e5f4d14e0a471b75e73010b38a3e2c5b accessed on April 2nd 2012
Can we buy land for masjid on interest? The imam of the local masjid says that according to Fatawa Alamgiri riba is not haram in Dar-ul-Harb and he calls USA as Dar-ul-Harb. Please explain in detail.
difference in the prohibition of interest between a Muslim and non-Muslim
anywhere, Darul Islam (Islamic state) or Darul Harb (a state of ongoing
conflict with Muslims).
In the early days of Rasulullah (Sallallaahu Alayhi Wasallam) many Muslims
used to enter into Riba transactions with non-Muslims, but when Riba was
prohibited, they stopped this practice totally. The Aayats of the Noble Qur’
an which prohibited Riba did not differentiate between a Muslim and
non-Muslim. Similarly, there is no example in the days of the Sahaaba (RA)
where anyone of the Sahaaba (RA) entered into Riba transaction with a
non-Muslim after the prohibition was enforced. Therefore, one cannot be
advised to take an interest-bearing loan, even in a non-Muslim country.
and Allah Ta’ala Knows Best
Mufti Ebrahim Desai
Narrations of Imam Abu Hanifa (r)
Some of Shia friends doubt one personality and Ahadees from Hadhrat Abu Hurairah Radhiyallahu Anhu. One Hadith they normally quote is http://sunnah.com.urn/54140 this one. Please add some commentary about this Hadith.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
The narrations of Abū Hurairah Radhiyallāhu Anhu are reliable and authentic. Abū Hurairah Radhiyallāhu Anhu was among the greatest Muhaddithīn (scholors of Hadīth) of this Ummah. Allāh Ta’ālā blessed Abū Hurairah Radhiyallāhu Anhu with an extraordinary memory that enabled him to remember every single Hadīth that he heard from Rasūlullāh Sallallāhu Alaihi Wa Sallam. Consider the following Hadīth reported in Sahīh al-Bukhārī:
فَشَهِدْتُ مِنْ رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ ذَاتَ يَوْمٍ، وَقَالَ: «مَنْ يَبْسُطْ رِدَاءَهُ حَتَّى أَقْضِيَ مَقَالَتِي، ثُمَّ يَقْبِضْهُ، فَلَنْ يَنْسَى شَيْئًا سَمِعَهُ مِنِّي» فَبَسَطْتُ بُرْدَةً كَانَتْ عَلَيَّ، فَوَالَّذِي بَعَثَهُ بِالحَقِّ مَا نَسِيتُ شَيْئًا سَمِعْتُهُ مِنْهُ (صحيح البخارى، بَابُ الحُجَّةِ عَلَى مَنْ قَالَ: إِنَّ أَحْكَامَ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ كَانَتْ ظَاهِرَةً، وَمَا كَانَ يَغِيبُ بَعْضُهُمْ مِنْ مَشَاهِدِ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ وَأُمُورِ الإِسْلاَمِ)
(Abu Hurairah Radhiyallāhu Anhu says) “I was with Rasūlullāh Sallallāhu Alaihi Wa Sallam one day. He said, “The one who will spread out his sheet until my speech is terminated, and then will wear the sheet will never forget any Hadīth that he will hear from me.” Thereafter I spread out the sheet I was wearing. By Allāh, I did not forget any Hadīth I heard from Rasūlullāh Sallallāhu Alaihi Wa Sallam.” (Sahīh al-Bukhārī)
The Hadīth referred to in the query is as follows:
وَعَنْ أَبِي سَلَمَةَ: سَمِعَ أَبَا هُرَيْرَةَ، بَعْدُ يَقُولُ: قَالَ النَّبِيُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: «لاَ يُورِدَنَّ مُمْرِضٌ عَلَى مُصِحٍّ» وَأَنْكَرَ أَبُو هُرَيْرَةَ حَدِيثَ الأَوَّلِ، قُلْنَا: أَلَمْ تُحَدِّثْ أَنَّهُ: «لاَ عَدْوَى» فَرَطَنَ بِالحَبَشِيَّةِ، قَالَ أَبُو سَلَمَةَ: فَمَا رَأَيْتُهُ نَسِيَ حَدِيثًا غَيْرَهُ (صحيح البخارى، بَابُ لاَ هَامَةَ)
Abū Salamah heard Abū Hurairah Radhiyallāhu Anhu narrating another Hadīth saying, “A person with sick camels must not allow them to go near another person’s healthy camels.” Abū Hurairah Radhiyallāh Anhu denied having narrated the first Hadīth. Abū Salamah Rahimahullāh says, “We asked Abū Hurairah Radhiyallāh Anhu, “Did you not narrate to us earlier that there is no concept in Shariah of contagion in diseases.” Abū Hurairah Radhiyallāhu Anhu angrily started to speak in an unfamiliar language.” Abu Salamah Rahimahullāh says, “According to my knowledge, this is the only Hadīth forgotten by Abū Hurairah Radhiyallāh Anhu.” (Sahīh al-Bukhārī)
This Hadīth does not prove that the narrations of Abū Hurairah Radhiyallāhu are unreliable. Rather it proves the authenticity of Abū Hurairah Radhiyallāhu Anhu’s narrations. Abū Salamah is praising the memory of Abū Hurairah Radhiyallāhu Anhu. He is saying that the narration referred to in this Hadīth is the only one that was forgotten by Abū Hurairah Radhiyallāh Anhu out of the thousands of Ahādīth narrated by him.
In Fath al-Bāri, Hāfidh Ibn Hajar Rahimahullāh states that even this statement was a mere assumption of Abū Salamah Rahimahullāh.  In reality, Abū Hurairah Radhiyallāhu Anhu did not forget even one Hadīth. Instead, Abū Hurairah Radhiyallāhu Anhu did not want to narrate the other Hadīth as the audience around him at that time would not be able to comprehend the apparent inconsistencies in both Ahādīth and may not be able to contextualize the Ahādīth according to circumstances.
And Allah Ta’āla Knows Best
Abdul Azīm bin Abdur Rahman,
Student Darul Iftaa
Checked and Approved by,
Mufti Ebrahim Desai.
And Allah Ta’ala (الله تعالى) knows best.