Some Protocols of Fatwa in Light of Classical Scholarship
Ibn Ābidīn (1252 AH), a high standing Hanafi faqīh famously known for his marginal commentary on Radd Al-Mukhtār, wrote a versification know as Rasm Al-Mufti (Protocols of Giving Fatwa) which outlines the details of exactly how, and what is obligatory on those who issue fatwa.
He declared at the outset of that poem:
اعلم بأن الواجب اتباع ما * ترجيحه عن أهله قد علما
أو كان ظاهر الواية ولم * يرجّحوا خلاف ذاك فاعلم
Know that it is obligatory to follow what the competent authorities [that is, the mujtahids in fatwa] have determined to be sound, or to follow the opinion of Zāhir Al-Riwāyah provided they [the mujtahids in fatwa] did not give preference to an opposing opinion [outside Zāhir Al-Riwayah]. So know this point!
The fact that Ibn Ābidīn chose to start with this very protocol regarding fatwa is no coincidence. The fact that he said, “So know this point!” points to the importance of the message. As it has been for centuries – as it was in his time and even more so today – the principle of adhering to the sound opinion of the senior mujtahid scholars of the school is very much abandoned and ignored so that unqualified pretenders, who fall short of the necessary qualifications of ijtihād that those senior scholars of the school possessed, take liberty in acting in contradiction and violation of established protocol while propagating their conduct as part of classical scholarship; namely following a madhhab, in spite of being in clear contradiction. Ibn Ābidīn goes on furthermore to expound on this point by explaining the couplets saying:
الواجب على من أراد أن يعمل لنفسه أو يفتي غيره أن يتبع القول الذي رجحه علماء مذهبه فلا يجوز له العمل أو الإفتاء بالمرجوح إلا في بعض المواضع كما سيأتي في النظم
و قد نقلوا الإجماع على ذالك
“It is obligatory on whoever who wants to act upon something or to give a fatwa to somebody else , to follow what the Ulama of his madhhab have determined to be the sound opinion (al-rājih). That being the case, he is not allowed to follow the weak opinion (al-marjūh) or to give a fatwa based on it, except in a few instances as will be mentioned in the poem. And verily the scholars have transmitted that there is consensus on this matter.”
Ibn Ābidīn goes on to say:
وقولي [أي في النظم] عن أهله، أي أهل الترجيح، إشارة إلى أنه لا يكتفي بترجيح كل عالم كان.
“My statement [in this couplet] ‘the competent authorities’ – meaning those senior scholars qualified to select opinions – is a indicative precept that not just every scholar qualifies in fulfilling the position of selecting the sound opinion.”
Furthermore Ibn Abidin towards the end of his introduction to his marginal commentary on Radd al-Muhtar, in the section concerning protocols of the Mufti, quoted his predecessor Ibn al-Humām (861 AH/Cairo) :
وقد استقرّ رأي الأصوليين على أن المفتي هو المجتهد, فأما غير المجتهد ممّن يحفظ أقوال المجتهد, فليس بمفت, والواجب عليه إذا سئل أن يذكر قول المجتهد كالإمام على وجه الحكاية, فعرف أن ما يكون في زماننا من فتوى الموجودين ليس بفتوى, بل هو نقل كلام المفتي ليأخذ به المستفتي
“The experts in the science concerning the principles of usūl al-fiqh have established [the opinion] that the Mufti [in the real sense of the term] is the mujtahid. As for those who are not mujtahids and memorize/preserve the opinions of the mujtahids, they are not Muftis [in the real sense, meaning they are not mujtahids]. It is incumbent on those Muftis [meaning, non-mujtahids] when they are asked a question, to give the opinion of the mujtahid, like Imam Abu Hanifah for example by means of a report [meaning to answer in accordance to his fatwa regarding the issue]. Thus, it is seen that the fatwas that those in our times give are not fatwas in the real sense [because they are not based on ijtihād but rather transmission] rather, they are transmitted reports from the statements of the real Mufti so that the one who seeks a fatwa can act accordingly.”
One of the important points this passage displays is just how Ibn Abidīn’s principle above (in Sharh Rasm Al-Mufti) concurs with the transmission of his predecessors. He didn’t pull the principle from his hat, nor did he assume self-achieved understanding or application of the text. On the contrary , we see the opposite behavior in our times under the assumed idea of contextualization, which in proper terms is actually the abrogation of established principle and abandoning the text in exchange for unqualified speculation. In fact what it is, is the assumption to self-interpret the text, either by making it general, or specific, or abrogating it; without having a valid text (nass) from the senior scholars of the madhhab to support it. This type of assumed contextualization completely contradicts the foundations of usūl al-fiqh namely the principle:
لامساغ للاجتهاد في مورد النّص
“There is no permission to make ijtihād in the presence of a text.”
To shed more light on this principle it is worth quoting Shaykh Ahmad Al-Zurqā (1938 CE /1357 AH), a contemporary well-known for his mastery in the field of usūl al-fiqh, who declared in his Sharh Al-Qawā’id Al-Fiqhiyyah under the thirteenth principle (“There is no permission for ijtihād in the presence of a text”):
فأما فيما عداه ممّا لم يفوّض إليهم وقد وقع فيه الخلاف ، فلا مساغ لاجتهاد فيه ، بل الترجيح فيه تابع لترجيح المرجّحين من علماء المذهب على حسب ما هو مبسوط في رسم المفتي ، فليس للمفتي وللقاضي مخالفة ما رجحوه باجتهاد منه, ولو فعل لا يقبل منه, لأنه اجتهاد في مورد النصّ, والنصّ لا مساغ للاجتهاد في مورده .
“As for everything else – except that which has be excused – which they [the non-mujtahid] have not been given any permission [to exercise ijtihād], when there exist a difference of opinion concerning a matter then there is no permission whatsoever to make ijtihād in those issues. Indeed, even the question of opting for one of two contrary opinions [in the madhhab] has to be referred to the senior scholars of the madhhab, as described extensively in the subject concerning the protocols of a Mufti.
Thus, it is not permitted for the Mufti nor the Qādī to contradict what the authorities have given preference to (al-rājih), according to his own ijtihād. However, if he does contradict it, it will not be accepted for him since there is no permission for ijtihād in the presence of a nass [which is a text from the Imams of the madhhab in this case].”
Here is an example of a well-known and learned contemporary concurring to the principles which have been transmitted to us and preserved in the relied upon works of classical scholarship. In spite of his knowledge in the field of usūl he salutes the principle according to the understanding of the classical scholars.
[This is all so important] in a time [when] people who follow the protocols of classical scholarship are deemed as “people living in books” or “lack insight” or only knowing “the letter of the law.”
Seeing that we have focused here on want some of the Hanafi scholars have stated, in spite of the principal being general, let us take a look into the Maliki school.
Shaykh Muhammad Al-Kurashī (1101 AH), who was the Imam of Azhar University when it was still an astute place of learning, quoted Al-Tatā’ī (942 AH) who stated in his work of fatwa called Al-Durar Al-Maknūn:
وَأَمَّا مَنْ لَيْسَ مِنْهُمْ فَلا يَحْكُمُ إلا بِالْمَشْهُورِ وَإِنْ حَكَمَ بِغَيْرِهِ, فَإِنَّهُ يُفْسَخُ لأَنَّهُ مَعْزُولٌ عَنْ الْحُكْمِ بِهِ.
“As for those who are not from them [that is those who are classified as mujtahids], they are not permitted to give fatwa except according to the mashhūr. If they give fatwa contrary to it, then verily it will be nullified because [at the time of giving such fatwa] he had already been removed from his post.”
ابْنُ عَرَفَةَ لا يُعْتَبَرُ مِنْ أَحْكَامِ قُضَاةِ الْعَصْرِ إلا مَا لا يُخَالِفُ الْمَشْهُورَ وَمَذْهَبُ الْمُدَوَّنَةِ
“Ibn A’rafah (894 AH)  said: No relative consideration concerning judicial verdicts is applicable except for rulings that do not conflict with the mashhūr and the madhhab of Al-Mudawwanah.”
وَتَبِعَهُ الْبُرْزُلِيُّ فَقَالَ الَّذِي جَرَى عَلَيْهِ الْعَمَلُ أَنْ لا يَحْكُمَ الْقَاضِي بِغَيْرِ مَشْهُورِ مَذْهَبِ مَالِكٍ رَضِيَ اللَّهُ عَنْهُ
“Al-Burzūlī (894 AH /author of Fatāwa Al-Bazūli) concurred with Ibn A’rafah in that opinion, saying: The opinion that is obligatory to be enforced, in accordance with the practice/al-a’mal, is that a judge is not permitted to issue verdicts contrary to the mashhūr of the Maliki madhhab, may Allah be pleased with him.”
وَقَدْ وَقَعَ ذَلِكَ فِي زَمَنِ السُّيُورِيِّ فَفَسَخَهُ وَفَسَخَ الْغُبْرِينِيُّ حُكْمَ حَاكِمٍ بِقَوْلٍ شَاذٍّ, لأَنَّ مَنْ لَمْ يَكُنْ مِنْ أَهْلِ الاجْتِهَادِ وَلا مَعْرِفَةِ وُجُوهِ التَّرْجِيحِ لا يَجُوزُ لَهُ الْحُكْمُ بِالشَّاذِّ وَهُوَ مَعْزُولٌ عَنْهُ وَيُفْسَخُ حُكْمُهُ,
“This incident [of giving a verdict contrary to the mashhūr] occurred during the time of Al-Suyūri and he annulled it. Furthermore, Al-Gubrini annulled the verdict of a judge who ruled according to a extremely weak opinion/shādh. The reason being is because whoever is not from the people of ijtihād or those who know the procedure of making preference/tarjīh, it is not permissible for them to give verdicts according to shādh opinions. Furthermore, such a person is removed from their position and their fatwa is nullified.”
وَإِنَّمَا يَحْكُمُ بِغَيْرِ الْمَشْهُورِ مِنْ الْقُضَاةِ مَنْ ثَبَتَ لَهُ وَجْهُهُ وَثَبَتَ عِنْدَهُ تَرْجِيحُهُ وَلَيْسَ هَذَا فِي قُضَاةِ زَمَانِنَا بَلْ لا يَعْرِفُ كَثِيرٌ مِنْهُمْ النَّصَّ, وَإِنَّمَا يَحْكُمُونَ بِالتَّخْمِين
“Verily, those who are permitted to give verdicts contrary to the mashhūr from amongst the judges, are those who are renowned as the scholars of the madhhab or renowned for being scholars who are permitted to exercise preference/al-tarjīh [such as Ibn Rushd, Al-Māziri, Al-Qarāfi and others from amongst senior scholars]. Those kinds of jurists are no longer found in our times. In fact! Many of the them [in our times] don’t even know the primary texts [meaning in utmost depth as ijtihād requires], but in spite of that they give verdicts based on their baseless observations.”
So here we have another clear example of the later scholars depending on classical scholarship regarding the protocols of fatwa in what is binding upon the Mufti and Qādi. Al-Kurashī, who lived in the 12th century only some two hundred years ago, like Ibn Ābidīn, didn’t take the liberty in abandoning the principles but instead he relied upon the works of the classical scholars to establish the principle namely that the mufti who is not a mujtahid of any degree (in other words a muqallid) is obligated to give fatwa according to the rājih or the mashhūr. He relied up the classical scholars by merely citing what they said because there is nothing beyond principle then to abide by it. Thus the way of classical scholarship is depending upon the senior scholars of the school in what has been brought down to us, and we don’t take the liberty in assuming the position to operate, in the name of any madhhab, according to our impulse and neither do we assume the authority to apply a single principle except that we follow the senior scholars in their application. Nor do we assume the position to abrogate a ruling under the pretext of contextualization without a valid text.
As for Malikis of today who might think they qualify as a mujtahid of any degree, let him resort to this statement above as well as the many other reports that have come down to us concerning the fact that, as early as the eight century, scholars stated explicitly that mujtahids within the school of the least degree, never mind absolute mujtahids, were no where proven to be found. This is from the mouth of those classical scholars to whose works we ourselves rely upon in understanding the madhhab. They themselves counted themselves amongst those who did not qualify. So if we are depending on their works for understanding and they themselves disqualify themselves, then how deluded are we today to assume we have the qualifications to pull rank?
As for the Hanafis of today, let them refer to what Ibn Ābidīn and Ibn Humām as well as others have said.
As for the Shafi’is, let them refer to Shams Al-Dīn Al-Ramalī and Al-Ghazālī and the fact that Imam Suyūti’s claim of achieving a degree of ijtihād was critically rejected by the Shafi’i scholars in Cairo who took him to task for his claim, in spite of his vast knowledge. [See Faid Al-Qadīr, Pg.21, Darul Al-Fikr]
 His full name is Abu Abd Allah Muhmmad Ibn Muhammad Ibn A’rafah (803 AH). He was one of the supreme scholars of the Māliki madhhab from Tunisia. From his famous works is Al-Hudud in which he explains many technical terms of fiqh.
 Ibn al-Humām was one of those rarest of rare phenomena, for he combined mastery of the intellectual sciences with mastery of the transmitted ones, for he was a faqih, a muhaddith, and a mutatakallim; that is one who had mastered fiqh, hadith, and the science called kalam, which [deals] with beliefs. He was also an expert in the principles of fiqh and logic and grammar and narrators of hadith and principles of hadith. One of his shaikhs in the science of hadith was Ibn Hajr Al-‘Asqalani. Ibn al-Humam is a high authority in the Hanafi madhhab, the author of one of the most highly regarded commentaries on al-Hidayah, an important work of Hanafi fiqh.
Courtesy of al-Masalik