Statements from the Early Scholars of the Mālikī and Hanbali Schools

1. Shaykh al-Islām Qādī Abu l-Fadl ‘Iyād ibn Mūsā (476 – 544 H)[45] 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 to them. (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)[46]

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.

2. Imām al-Māzirī, Abū ‘Abdillāh Muhammad ibn ‘Alī al-Tamīmī (453 – 536 H)[47] 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 that this 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 madhhab at the outset.

Statements from the Hanbalī School

1. Najm al-Dīn Ahmad ibn Hamdān ibn Shabīb al-Harrānī al-Misrī al-Faqīh (603 – 695 H)48 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)[49]

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 fatwa Sifat al-Fatwā wa l-Muftī wa l-Mustaftī (al-Maktab al-Islāmī, p 72)

Next: “The Layperson has no Madhhab”?

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[Footnotes]

[45] 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.

[46] Arabic quote to be added here.

[47] A major Mālikī Imām, commentator of Sahīh Muslim, and a teacher of Qādī ‘Iyād

[48] 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)

[49] Arabic quote to be added here.

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