Statements from the Early Scholars of the Hanafi 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[11] is binding[12]. 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:

1. Fakhr al-Qudāt Muhammad ibn al-Husayn Abū Bakr Arsabandi (d. 512)[13] 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 wa Tajdīd Adillat alShar, Dār al-Nu‘mān lil ‘Ulūm, 2:868)[14]

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 that the 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.

2. Ahmad ibn Muhammad ibn ‘Umar Abu l-‘Abbās al-Nātifī (d. 446)[15] 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)[16]

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 whole and not to 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 scholar within the school. Hence, this “choice” refers to the scholars within one’s school and not outside of it.

3. Imām Muhammad ibn Mahmūd ibn al-Husayn al-Asrūshanī (d. 632)17 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.”[18]

4. Fakhr al-Dīn Muhammad ibn Mahmūd (d. ca. 570 H)[19] 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).”[20]

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 is that 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”[21]

5. ‘Ubayd Allāh ibn ‘Umar ibn ‘Īsā, Abū Zayd al-Dabūsī (368 – 430 H)[22] 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)[23]

Al-Arsābandī’s statement quoted earlier is a rephrasing of this passage of al-Dabūsī. Hence, the same explanation applies.

6. 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.”[24]

7. Shaykh al-Islām Burhān al-Dīn ‘Alī ibn Abī Bakr al-Marghīnānī (511 – 593 H)[25] 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.”[26]

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)[27]

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.[28] 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.”[29]

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 –, that this 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.

Next: Statements from the Early Scholars of the Shafi’i School

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[11] “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.

[12] 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.

[13] Kafawī said, “The leadership of the Hanafīs culminated at him.” (al-Fawā’id al-Bahiyyah, Dār al-Ma‘rifah, p. 164-6)

[14] Arabic quote to be added here.

[15] He was described as one of the senior ‘Irāqī jurists and authors of Wāqi‘āt and Nawāzil (al-Fawā’id al-Bahiyyah, p. 36)

[16] Arabic quote to be added here.

[17] 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.

[18] Arabic quote to be added here.

[19] He was mufti of Sijistān, a learned Imām with extensive knowledge of both fundamentals and peripherals (al-Fawā’id al-Bahiyyah, p. 201)

[20] Arabic quote to be added here.

[21] Arabic quote to be added here.

[22] He studied fiqh under Abū Ja‘far al-Astrūshanī, and was one of the brilliant Hanafī scholars from Transoxiana. (al-Fawā’id al-Bahiyyah, p. 109)

[23] Arabic quote to be added here.

[24] Arabic quote to be added here.

[25] 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)

[26] Arabic quote to be added here.

[27] Arabic quote to be added here.

[28] Arabic quote to be added here.

[29] Arabic quote to be added here.

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