FOLLOWING A MADHHAB AND RULES FOR ISSUING FATWAS

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Imran Ahsan Khan NyazeeSeries Editor: Pir Khizar Hayat

Nyazee on

THE SECRETS OF US. L AL-FIQH

C M VI ( )Following a Madhhab and

Rules for Issuing Fatws

Advanced Legal Studies Institute ALSI


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TABLE OF CONTENTS

1 Introduction

2 The Meaning of School of Law and Following a SingleMadhhab

2.1 The Views of Modern Scholars on Why a ParticularSchool Should be Followed . . . . . . . . . . . . 112.2 The Us.lArgument for Following a Single School . . 17

2.2.1 The Nature of the Qawid Us.liyyah: the Basis ofthe Schools of Law . . . . . . . . . . . . . . 17

2.2.2 A School of Law Then is a Unique Body of Rules ofInterpretation . . . . . . . . . . . . . . . . 18

2.2.3 The Analogy of Portability and Staying Within theSchool . . . . . . . . . . . . . . . . . . . 19

3 Taqld and its Implementation Within the School3.1 The Meaning and Implications of Taqld . . . . . . . 24

3.1.1 The Literal Meaning of Taqld. . . . . . . . . . 243.1.2 The Technical Meanings of Taqld . . . . . . . . 243.1.3 Taqld in the Pakistani Legal System . . . . . . . 27

3.2 The Primary Function of a School of Law . . . . . . 273.3 The Resources of the School: Jurists, Issues and Texts . 28

3.3.1 The Hierarchy of Jurists Within a School . . . . . 28

3.3.2 The Hierarchy of Issues Within a School . . . . . 313.3.3 The Hierarchy of Texts Within a School . . . . . . 333.4 The Integral Bond Between the Four Sunni Schools . . 40

4 Separating the Mujtahids from the Non-Mujtahids4.1 The Necessity of a School . . . . . . . . . . . . . 474.2 Preserving the School System . . . . . . . . . . . 50

4.2.1 Understanding the Hierarchy of Jurists Within aSchool . . . . . . . . . . . . . . . . . . . 51

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This document has been written for the Virtual

Shari`ah Court at vcourt.org. Fatwas issued by

VSC can be downloaded from this site.


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4.2.2 Understanding the Hierarchy of the Earlier Rulings . 534.2.3 Understanding the Hierarchy of Texts Within the

School . . . . . . . . . . . . . . . . . . . 544.2.4 The Result of the Three Steps. . . . . . . . . . 54

5 What is a Fatw and Who is a Muft?5.1 What is a Fatw? . . . . . . . . . . . . . . . . . 575.2 Who is a Muft? . . . . . . . . . . . . . . . . . 595.3 Recalling the Meaning of Ijtihd and Taqld . . . . . . 61

6 The Mujtahids Within the School and Following the Qawl(Opinion) of the Imm, Always6.1 Identifying the Issue . . . . . . . . . . . . . . . 656.2 The Activity of the Mujtahids Within the School . . . 666.3 Is it Mandatory for the Muqallid Muft to Follow the

View of the Imam and no One Else? . . . . . . . . 686.4 In What Cases is the Qawl (Opinion) of the Imm or of

the School to be Given Up? . . . . . . . . . . . . 736.4.1 If a H. adth is Proved Sound, Adopt it as my

ViewAb H. anfah. . . . . . . . . . . . . 74

6.4.1.1 Can the Tradition be Adopted? . . . . . . 746.4.1.2 If the Tradition is Adopted, the Jurist Must StayWithin His School . . . . . . . . . . . 76

6.4.1.3 The Vital Role of Traditions and Modern Issues 776.4.2 Picking and Choosing or the Varieties of Talfq . . . 78

6.4.2.1 The Meaning in General . . . . . . . . . 786.4.2.2 Using the Qd. as the Standard . . . . . . 806.4.2.3 Rules That Prohibit Picking and Choosing . . 83

6.4.3 GivinguptheViewoftheSchoolontheBasisofUrfand the Changes Over Time . . . . . . . . . . 89

6.4.3.1 The Nature of the Change Expected . . . . . 896.4.3.2 The Meaning of Urf as the Basis of Change . . 896.4.3.3 Bringing Order Into the Urf Methodology . . 92

7 Important Rules in Sharh. Uqud Rasm al-Muft7.1 Basic Rules for the Muft . . . . . . . . . . . . . 967.2 Who are the Mashikh . . . . . . . . . . . . . . 987.3 Additional Rules . . . . . . . . . . . . . . . . . 99

8 What Needs to be Done


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8.1 Training for Dealing With Variation in Facts . . . . . 1018.2 Methodology for Areas Not Covered by the School . . 102

Bibliography

AppendicesA H. anaf Sources: Us.l al-Fiqh . . . . . . . . . . . . 109B H. anaf Sources: Fiqh . . . . . . . . . . . . . . . 115


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1

INTRODUCTION

What hath come to these people thatthey fail to understand a simple state-ment (Qurn 4 : 78)

Al-H. askaf says in the beginning of his book that no one, other than theProphets, knows what Allah desires for them. The exception, he says,are the jurists, for it is about them that Allah has said: He for whomAllah wills his blessings is granted the fiqh of Dn.1 He thus indicatesthe high status of the discipline of fiqh and the consequent blessings forthe person who pursues this knowledge. Indeed, the issuing of fatwsis the noblest of all human activities, but at the same time it is the mostperilous of duties. The task of the muft is almost similar to that of theqd. or even more extensive, because the muft gives rulings in casesof dispute and also guides the subject in personal matters pertaining

to this world or the next. The judgment of the qd. is binding, whilethe fatw of the muft is not binding. Nevertheless, the responsibilityis immense and the task colossal. In this module, we will address thecomplexities and difficulties that beset the pursuit of this noble profes-sion.

We have covered a lot of ground in the previous modules. Anyonewho has gone through all the texts is by now fully aware of how thesystem works in traditional Islamic law and what additional require-ments are imposed by the needs of the modern world. In any legal sys-

tem, the ultimate test is how legal problems are solved with justice andhow rights are secured. This is reflected in the quality of the decisionsrendered. Islamic law, being a religious law, operates at two levels:the issuance of fatwas and the rendering of decisions. Fatwas may becompared with legal opinions in another legal system. The word used

1. We will be referring to al-H. askaf as the matn of Ibn bidns work, for ease ofreference, although the work has been published separately as well. Muh. ammadAmn Ibn bidn, Radd al-Muh. tr al al-Durr al-Mukhtr Sharh. Tanwr al-Abs.r,12 vols. (Riyadh: Dr lam al-Kutub, 2003), vol. 1, 138.

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in Roman law for fatw was responsa. The difference is that fatwas arerelated to the moral as well as the legal domain. In other words, the or-

dinary Muslim may sometimes ignore what the state law is and followthe fatw.Today, we often witness this in the case of family law in a country

like Pakistan. For example, the law considers every divorce, irrespec-tive of the number of times it is pronounced, as a single repudiationand assigns consequences accordingly.2 The affected individual, on theother hand, takes three repudiations into account, if three have actu-ally been pronounced, because he considers himself morally bound bytraditional Islamic law; he ignores the state law. In addition to this,

state law has radically altered the rule about khul, converting it froman out of court settlement between the partieswhich the qd. merelyconfirmsto a mandatory form of divorce that is available to a womanwho just has to file an application seeking khul. As this goes against theestablished law of the school, there might be people who will not acceptit morally or on the basis of traditional Islamic law, and remarriage ofsuch a divorced woman may be considered an unlawful act. Othersmight argue that a ruling issued by a judge removes all disagreementsabout an issue, but this argument is not acceptable to the formerwhoconsiders it morally unsoundas a muqallid judge cannot go againstthe established rules of the school.

Beyond this, the ordinary Muslim seeks fatwas for everyday mattersand this has been going on for more than a thousand years. As a result,the institution of seeking fatwas has become extremely important andthe system of issuing fatwas exceedingly complex. The modern worldhas brought a host of new problems with it and this has added to thecomplexity and has heightened the activity. The seeking of fatwas has,

therefore, spilled over to the Internet and there are many institutionstrying to meet this need.A very important point that emerges from the study of the previous

modules is that the H. anaf school, or any other school for that matter, isa system for deriving rules from the texts and implementing them forregulating the lives of the subjects. Within this school, the Imm Az. amand and his immediate disciples enjoy immense respect and a lofty sta-

2. See, Muslim Family Laws Ordinance, 1961.

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tus. Nevertheless, the school is a system that has taken centuries tobuild and refine through the contribution of hundreds of jurists in the

early centuries. All these jurists have respected positions in the system.Anyone who fails to realize the significance of the system, as distinctfrom the jurists, is likely to fall into confusion at some stage or at somepoint. In some ways, this entire course has been directed towards theindication of this significance. Understanding the school as a systemhas a huge impact on the debates surrounding the meaning of muft,his sources and qualifications. Consequently, the reader should keepthis fact in view when trying to understand the underlying issues.

In this module, we move from the theoretical framework of interpre-

tation in Islamic law to the applied field of issuingfatwas and renderingjudgments. We will try to unravel the underlying issues in the light ofthe debates among the jurists of the H. anaf school as to what is the bestmethod of issuing fatws. It may be stated at the outset, however, thatthe field of fatws is not easy to understand, especially due to the exis-tence of the complexity indicated, and due to the different views of thejurists that are often read out of context and become a source of confu-sion. The jurists assume that the context is obvious, but for the readerthis is not always true, just as it has not been true for some later jurists.To undertand this topic, some of the material discussed in the previousmodules will often be recalled to elaborate the situation.

Another important point to understand is that a school of law doesnot come into being all at once, as if by magic. It is a lengthy processthat often spans centuries. The foundations laid in the initial stages giverise to huge bodies of principles, presumptions and rules. These prin-ciples, presumptions and rules are gradually refined through a varietyof views generated by the jurists. Over time, the propositions of the

school begin to crystallize and mature. This raises the need for stabilitywithin the school as a perpetually fluid situation cannot be allowed tocontinue if the school has to survive and its original foundations haveto be preserved. This is exactly what happened in the H. anaf schooland also in other schools. As the centuries passed more and more re-strictions were placed on the liberty of jurists within the school for thesake of the system; this is done in every legal system. The earlier free-dom enjoyed by the jurists slowly came to be controlled through rulesthat are collectively referred to as taqld. The doctrine of taqld was es-

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sential, because giving absolute freedom to the jurist to deal with thelaw as they liked would have meant disruption within the school and

its doctrines and even the uprooting of the very foundations on whichthe school had been so carefully erected.3

The laws derived by the jurists from the texts of the Qurn and theSunnah were able to deal with most of the problems faced by societiesup to medieval times. These were laws that were not likely to changemuch over time as they had direct links to the texts of the Qurn andthe Sunnah, which could not be altered. Certain parts of the law thatwere necessary for the administration of the state, were left to the rulers.The jurists provided broad guidelines and methodologies for keeping

such changeable laws within the norms of the sharah, but did not pro-vide the details as these laws were alterable anyway. The rulers some-times conformed to these guidelines and at other times they did not,but there was a constant pressure that all such provisions conform tothe dictates of the sharah.4 It is the same pressure that we find todayin many Muslim majority countries for the Islamization of the laws.Consequently, many new laws, institutions and even a parallel systemof courts were designed. In short, legal problems faced by Muslimsup to the period of colonization were always solved by these systemsone way or the other. Colonization altered these systems radically andmade them defunct or removed them from the scene altogether.

Advances in science and technology in the last few centuries, on ascale unprecedented in human history, brought radical changes to theworld. Wars on a global scale brought in many new international ar-rangements. Colonization gave way to greater international interactionamong nations as well as global commerce, which in turn gave rise torevolutionary changes in the nature of commerce and banking. It was

only after these changes had set in, and with a gap of several centuries,that Islamic law reemerged on the scene in the Muslim world. Muslimscholars had been working during this period, but had focused mainlyon the part of the law that was directly linked to the texts. The institu-tions, rules and courts that the earlier Muslim rulers had erected had

3. For a complete explanation of the doctrine of taqld, see Imran Ahsan KhanNyazee, Islamic Jurisprudence (Islamabad: Federal Law House, 2013), 375.

4. Imran Ahsan Khan Nyazee, Theories of Islamic Law: The Methodology of Ijtihd (Is-lamabad: Federal Law House, 2007), See the chapter of the doctrines of h. add.



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disappeared from the scene. Yet, the restrictions placed on the juriststhrough the doctrine of taqld were still in place. Many started seeing

these restrictions as a hindrance for the development of Islamic law andits reform, rather than as an essential doctrine that had brought stabilityto the system and preserved it over the ages. Attempts were also madeto come up with solutions within these restrictions. A movement wasseen from one school to several in search of new solutions. Unique waysof creating new opinions were devised including patching up opinionsto form new ones. These efforts have not been enough to resolve newissues and problems. Under the weight of the restrictions many juristshave succumbed to sharah solutions provided by economists and other

experts, who have no expertise in Islamic law. This has been noticeablein the area of banking and commerce. In the meantime, modern prob-lems cry out for valid sharah solutions. A huge and gaping void exists.If this void is not filled by solutions coming from the depths of Islamiclaw, there is a danger of this law becoming irrelevant for the modernworld; signs of which have already become visible.

In this module we will first deal with the a major question that isasked by many and for which no scientific or technical arguments havebeen provided as yet. The strongest argument given simply appealsto the piety of the earlier Imms and the fact that they deserve to befollowed. The assertion is undeniable, but arguments must arise fromwithin the system to justify the following of a single school. Related tothis is the meaning of taqld, which we have explained elsewhere butwould like to recall in brief along with the function of the school. Hav-ing done this, we will try to assess the system of taqld that has been de-scribed for us. This assessment will then be followed by the descriptionof the meaning, nature and method of fatws. There are many points

that are debated by the jurists and we will try to understand the im-plications of these debates. The important issues of following anotherschool, choosing opinions and talfq will also be taken up. Once we havedone all this, our goal will be to lay down certain best practices for thewriting and issuing of fatws, especially on new issues.



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2

THE MEANING OF SCHOOL OF LAW ANDFOLLOWING A SINGLE MADHHAB

Many people have started questioning the basis for following a singleschool in matters of the sharah. A number of reasons are advancedfor not following a school, but the real aim appears to be to eliminatethe authority of the jurists over the masses. Once eliminated, this au-thority is to be replaced by some kind of natural law or Neo-Mutazilahform of reasoning. From the other side, many reasons are advanced forfollowing a single school, but many of these arguments can be easilyrefuted. In this chapter, we will try to advance a technical reason as thetrue basis for following a single school.

2.1 The Views of Modern Scholars on Why a ParticularSchool Should be Followed

Following a single school of Islamic law is the first restriction thatis faced not only by the jurist, but also by the layman. Resistance tothis restriction is becoming stronger by the day, so much so that somehave even questioned whether the following of schools is a bidah (in-novation). Consequently, many scholars have tried to elaborate why itis necessary to follow a single school. The learned Muft Taqi Usmaniwrote a very comprehensive document on the issue. This has now beentranslated into English.5 We will rely on this document alone as thelearned Taqi Usmani has, as usual, dealt with the topic in a very com-prehensive manner, and most other scholars offer the same arguments.We will attempt to organize the arguments given by the learned scholarthrough excerpts from this text. No attempt will be made to correct oredit the words, except obvious errors. The learned scholar presents thefollowing arguments:

5. Legal Status of Following a Madhhab. It is available on the Internet at www.kalamullah.com/Books/LegalStatusOfFollowingAMadhab.pdf.

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Islamic law is complex and requires specialists. The jurists arethese specialists: The issues of Islamic law are very complex and

such complexity requires specialization. The jurists are the spe-cialists who deal with Islamic law. So ask the people of remem-brance if you know not.6 This verse implies that the specialist befollowed. A verse says: O you who believe! Follow Allah; followthe Messenger and those of authority (Amr) amongst you.7 Alarge number of authorities are quoted in the document to showthat the term those in authority means the jurists. The wordsof the Qurn, And if you dispute, then refer it to Allah and theMessenger if you really do believe in Allah and in the Last Day,8

are not directed at the layman. The verse is interpreted to meanthat it is a command for the jurists.

The jurists were pious persons and such persons should be fol-lowed: This meaning has also been derived from the the Qurnwhere it means following prophets and good people in religiousaffairs: They are the ones whom We guided, so follow their guid-ance.9 Follow the good and pious people, for some of them mayreally be the guided ones.

Taqld or following the opinion of another was prevalent evenin the time of the Companions (R), but later a need was felt forsystematization: Taqld, which means following someone elsesopinion was to be found even in the time of the Companions (R),but a few generations later a dire need was felt for systematiza-tion. Opinion without knowledge was discouraged. It was theresponsibility of a person who was not a scholar to ask someonewho had knowledge of the Qurn and Sunnah. If the knowledge-

able person gave an erroneous fatw, the burden of sin is on themuft and not on the questioner. Certain historical changes oc-curred and these led to a need for systemization.

6. Qurn 16:90.7. Qurn 4:59.8. Qurn 4:599. Qurn 6:90.



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Ultimately, the jurists saw a need for drawing the boundaries oftaqld and of the following of one school: The scholars saw that

there was a need to demarcate the practice of taqld. For reasonsof administration and to avoid the possibility of contradictionsamongst the scholars of differing ijtihd over a primary source,people were encouraged to follow only one Imam and mujtahidinstead of referring to several. This idea gained hegemony duringthe third and fourth century Hijrah. Hence, it has been the dic-tum of the vast majority of the Ummah for subsequent centuries,and scholars themselves have conformed to taqld of a particularImam. The jurists were concerned at the decay of piety and de-

voutness amongst the Muslim populous, devoutness being thenorm during the time of the Companions (R). They feared thatthe scruples of subsequent generations would not be as elevatedas those of the first three generations (Salaf). If under these cir-cumstances, the door of following an Imam in general were un-conditional, inadvertently desires would become the command-ing principle. A person left freely to adopt the view which suitedhim best and abandon the fatw which did not meet his stan-dards of comfort begs the question upon what basis is the non-scholar to choose between two contrary fatws if not ones ownnafs (desires). It is clear that this line of action would result in peo-ple using Islamic law as a triviality to entertain the lower self. NoMuslim scholar of any repute has validated this kind of practice.

Becoming a mujtahid was no longer possible: The taqld of fourImams became popular throughout Muslim cities and the taqld ofother scholars was forsaken. The doors of diverse opinions wereclosed because so many academic terms were being used to de-

note so many different concepts and because it had become sodifficult to reach the stage of a mujtahid. There was the appre-hension that the title of mujtahid might be attributed to one whowas not worthy, or someone who was inauthentic (and could notbe trusted) in his opinion and in his religious practice. Scholarsdeclared that attaining the stage of a mujtahid was not possibleand restricted people to follow a particular Imam. They preventedpeople from following Imams alternately as this was tantamountto playing [with Islam]. This discussion is based on the statement



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of Ibn Khaldn, Muqaddimah (Egypt: Makatab Tijariyah Kubrah,n.d.), 448.

Following a school is not bidah (innovation): A question mightarise from this analysis: How can something that was not nec-essary during the times of the Companions and their followersbecome necessary for people who came after them? An eloquentreply has been offered by Shah Waliyullah:

It is mandatory that there should be someone in thecommunity (Ummah) who knows details of particu-lar rules and laws with their reasoning and proofs.The people of truth have unanimously agreed to thispremise. A science or action which is necessary to fulfilla mandatory action also becomes mandatory in itself.For example, the predecessors did not write the sayingsof the Prophet (sallalahu alaihi wa sallam). Today writ-ing and documenting Hadith has become necessary, be-cause the only way we can know and learn Hadith is byknowing the books of Hadith. Likewise, the predeces-

sors did not engage in studying syntax and etymology,because their language was Arabic, and advanced studyof these ancillary sciences was not required. Today,learning these sciences has become mandatory sincethe language has drifted considerably from the orig-inal language of Arabic. Based on this account, onemust draw an analogy for proving that following oneparticular Imam and Mujtahid is sometimes necessaryand sometimes not necessary. [Al-Ins.f f Bayn Sabab

Ikhtilf: 57/59. Published by Matba Mujtabai, 1935.Ibid 69/71.]

Shah Waliyyullah hinted toward the chaos and corruption whichwas prevented by restricting taqld to one Mujtahid: In short,following the Mujtahids was a subtle inspiration which Allahunveiled to the scholars. A consensus arose among the rightlyguided scholars, to its indispensability. Knowingly or unknow-ingly, it was upon this inspiration that the vast majority of the



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ummah united. He wrote in another place: The Ummah hasunanimously agreed upon the validity of following one of the

four schools of thoughtwhich have been organized and docu-mented. There are many obvious benefits in this, especially todaywhen determination has dwindled; when desires have penetratedour consciousness and gloating in ones own opinion is seen as avirtue.

Why only four schools? This begs the question: if followingone particular Mujtahid is indispensable, why the need to restricttaqld to only the four schools of thought? Several great Imams

and Mujtahids have occupied the pages of Islamic scholastic his-tory such personages as Sufyn Thawri, Imam Awz, Abdullahibn Mubarak, Ishaq ibn Rahwayh, Imam Bukhari, Ibn Abi Layla,Ibn Sibrimah, Hasan ibn Salih and many others. Are all Muj-tahids not equally qualified to be followed? Such a contentionis valid in principle, but it is not effectively possible. The schoolsof thought of the Mujtahids mentioned above are not systemati-cally documented. Had their schools been formally codified andstructured similar to the major four schools, then there would be

no hindrance to following them. Unfortunately, their schools donot exist formally, nor have the original sources of the schools sur-vived. To follow such schools would therefore prove difficult.

Why one particular school and why not all? Shah Waliyyullah,has allocated a whole chapter to this discussion in his book: Iq-dul Jeed and called it: The Chapter of Emphasising followingone of these four schools of thought and denouncing the idea offorsaking them. He started the chapter by saying: You should

know that following these four schools have tremendous publicadvantages and benefits. Forsaking them is wrought with mis-chief and harms. We will explain this with many inferences .

Mawlana Taqi Usmani says: He then goes on to explain the manyreasons which I will paraphrase in points instead of translating avery lengthy passage. It is incumbent to rely upon the early pre-decessors if one is to understand Islamic law. The only way forus to do this is either to determine that the statements of the pre-decessors have been transmitted to us via sound chain of narra-



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tors or to read their statements, which are documented in reliablebooks. It is necessary to establish that these statements have ac-

tually been trusted and used by other scholars. Finally, if theirstatements are open to several meanings, then the most preferredmeaning be adopted. Occasionally, the statement of a certain Mu-jtahid may appear to be general but in fact it may be quite specific,which would be recognised by the scholars who have studied hisschool of thought. Thus, it is necessary that the statements of thiscertain Mujtahid be documented, understood and explained suchthat the rationale is emphasised. If a certain Mujtahid has not hadhis statements codified then such a Madhhab should not be relied

upon. In our age, the four prominent schools of thought share thisadvantage whereas other schools do not.

Finally, if giving a Fatwa based on any of the earlier scholars andtheir schools of thought were to be made permissible, then cor-rupt scholars would take advantage of the Shariah and base theirFatwas on the statements of any of the predecessors. This wouldinevitably open the door to the abuse of their statements. Cor-rupt scholars would be asked to justify selfish desires by quoting

pious predecessors. Relying upon following the vast majority ofthe community would arrest the drift to chaos within the Shariah.

The above arguments are good and the efforts of the learned MuftiTaqi Usmani have to be appreciated. We can raise some questions, butthat will lengthen the description unnecessarily. The only point we willraise is that some people today may not find some of the arguments tobe very convincing. For example, they may say that every legal sys-tem is complex and is in need of specialists, but that does not mean

we should adopt a single theory of law as a valid theory; legal systemscontinue to work without doing so. Again, there are many pious schol-ars today who can be followed. Today, we have the means of checkingthe acts of corrupt scholars who plagiarize the work of other schoolsand present it as their own. The work of scholars who do not belong tothe four accepted schools also stands documented. The general popu-lace, with the spread of education, is quite capable of determining thechains of narrations from the published material. There may be benefitsin not following a single school as it will provide freedom to deal with



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the multitude of problems faced by the Ummah today. Consequently,scholars can get together and decide that it is no longer necessary to

follow a single school.10

In short, even a simple response may be enough to show that thevery good arguments provided may not be sufficient to convince ev-eryone. In reality, this is exactly what has happened and many edu-cated people are approaching the ah. adth on their own and concludingwhat the law must be on a particular point. The situation is rapidlybecoming what may be called a free for all. It is indeed a dangerousdevelopment for Islamic law.

True arguments must be discovered and for doing so we have to turn

to us.l al-fiqh again.

2.2 The Us. l Argument for Following a Single School

The true argument for following a single school, and also for notfloating between schools, is to be found in the Discipline of Us.l al-Fiqhitself. In all the previous modules we have indicated that understand-ing the meaning of ilm us.l al-fiqh is essential for many things.

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now time for the reader to test his understanding of the meaning.2.2.1 The Nature of the Qawid Us. liyyah: the Basis of the Schools

of LawFor the Us.l, the term us.l implies a body of principles that he

uses to interpret the texts, as has been elaborated right from module I.As these us.l or rules contain within them the meaning of the sourcesof Islamic law, the us.l does not emphasise the meaning of us.l assources, rather he focuses on the rules, which are the rules of interpre-tation. He hands over these rules to the jurists of the school (thefuqah),who use them to create the knowledge base of the law also calledfiqh. Itis better to call these us.l principles for reasons that should be obviousto the reader by now.

We have tried, in the previous modules, to list as many of these rulesof interpretation as was possible in documents of this nature. In ad-

10. In fact, the Neo-Mutazilah in the West are trying to do exactly this.11. This has been explained in detail in the first module on the secrets of us.l. For a

simpler explantation, please see Nyazee, Partnership in Islam,



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dition to the rules of interpretation,12 we have also listed many of thepresumptions that are used for the interpretation of facts and for other

purposes.13

There is no need to repeat those rules here and the readercan very quickly review the rules by looking at the frames in whichthese rules were written.

2.2.2 A School of Law Then is a Unique Body of Rules of Interpreta-tion

We have seen in the previous modules that some qawnn are ac-cepted unanimously by all schools, while others are not. The total bodyof such rules accepted by one school differs to some extent from the set

adopted by another school. This is what makes them distinct schoolsof law. Within a school, the us.l adopted are analytically consistent,that is, they do not clash with each other, rather they complement oneanother, like flowers in a bouquet. Across school boundaries there maybe a clash among such us.l, with the colours showing incompatibility.

Theoretically, the body of such rules is adopted by the founder ofa school. Thus, for the H. anaf school, the rules were adopted by AbH. anfah and those for the Malik school by Imm Mlik. It is true thatall the detailed rules may not have been laid down by the founder, but

he did establish a base on which the details were constructed. In fact,we sometimes find the immediate disciples of the Imam trying to argueabout these qawnn as well, but this is rare and it was done only in theearlier formative stages of the school.

The body of rules adopted by each school amounts to the theoryof interpretation or theory of law of that school.14 Each theory of lawis somewhat different from that of another school and has an impacton the ah. km derived. Understanding the nature of the us.l by relat-ing them to each school is extremely important for understanding the

discipline of us.l al-fiqh. It is also for this reason that picking and choos-ing opinions randomly across school boundaries is looked down uponand deemed inappropriate. We shall have more to say about this in thesection of portability below.

12. Most of these rules are listed in module II.13. See module III.14. For an explanation about the meaning of theories in Islamic law, see Nyazee,

Theories of Islamic Law,



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Th

e

H.anaf

sch

ool

isa

sytem

of rules compatiblewithea

choth

er

an

d

internally

co

ns

isten

tbutsomewhatdifferentfrom

those

ofo

the

rs

choo

ls

Rules dealing with sources: Qurn, Sun-

nah, Ijm, opinion of a Companion, Qiys,istih. sn and so on.

Rules dealing with literal interpretation:dallt, amr and nah, mm and khs.s. ,z. hir and khaf and so on.

Rules dealing with the rational sources.

Rules of Ijtihd and tarjh. .

Rules about the h. ukm shar ( )

Other rules.

Imagine each school as a vase; four identical vases. The base is thesame, but the flowers arranged in them have different colours. The ju-rists of one school prefer one set of colours, while those of the otherschools prefer other sets. There is another integral bond between the

Sunni schools beyond this too, and we have explained that later.

2.2.3 The Analogy of Portability and Staying Within the SchoolThe distinctions mentioned above should have made matters clear

about the necessity of following a school of law. We will, however, goahead and use an analogy from the computer world as most people usecomputers today and will find the explanations easier. It may not be aperfect analogy, but it will help.

There are different operating systems in which people work today:

Windows, Unix (Linux), Macintosh OS and so on. Now there are cer-tain files that can easily be read across all systems due to their portabil-ity. These may be like the PDF (portable document format), postscriptfiles, image files and so on. Beyond this, a program file or even anotherfile of one system may not open or work in another operating system.Thus, the Microsoft Office or Word program made for windows will notwork on the Macintosh or even in Unix. This was from the perspectiveof software. Hardware, too, explains our analogy if we say that eachmicrochip (Motorolla or other) has its own instruction set that differs



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from the instruction set of other chips. The position in the schools ofIslamic law is quite similar.

A person working in the H. anaf school should, therefore, remain inthe H. anaf school. Choosing things from one school and pasting theminto the other school will not work. Thus, taking an opinion based onistih. sn and pasting it into the Shfi school will not work, because thatschool considers istih. sn to be a nullity. Likewise, an opinion based onthe rule that the opinion of a Companion is binding may not work in theShfi school, which considers such an opinion not to be binding. Goon to other points of difference and you will start realizing the signifi-cance of this statement. For example, the system of literal construction

or dallt used by the H. anafs is radically different from that followedby other schools.

A person may say: what is the difference, when we follow one opin-ion we are following one acceptable school and when we follow anotherwe are following another acceptable school? This question is excusableif it comes from a layman, but in the case of a jurist it is unpardon-able. If the jurist, who knows the systems, says this, he will be sayingin one statement: istih. sn is valid and not valid; opinion of a Companionis binding and non-binding; the general word is qat

. and zann. This

amounts to playing with the law, which is a sacred law. For the samereason, floating between schools is not pardonable.

If the layman, or a jurist for that matter, likes some opinions in theother school, he should move completely to the other school. Stayingin one school and choosing pleasing opinions from other schools is notappropriate.

The learned Abu Zahr, at the end of his book on us.l, attempts tolay down certain conditions for picking and choosing from different

schools, or as some say floating between schools. The conditions re-duced to the basics appear to say that the jurist must be a good man, heshould do so honestly and not while pursuing his whims (haw). It isdifficult to accept such suggestions. The reason is simple: on what basisare you prefering an opinion of the other school? What are your rules ofinterpretation (assuming you are a great jurist) or technical standardson the basis of which you are carrying out the selection? Do you believethat istih. sn is valid or not valid, and so on? If you have made a newoperating system in which everything works, then that is marvellous.



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Making a new operating system means you have set up a new school ofIslamic law that has unique principles of interpretation. You have then

turned into a mujtahid mut.laq like the founders of the schools. In sucha case, you do not have to choose, you must undertake fresh ijtihd forthat is binding on you. And, you must declare the whole set of yourprinciples of interpretation.

Selecting a whole new set of principles of interpretation is the realreason why we cannot have a mujtahid mut.laq today. Maybe, a wholebody of scholars can get together and set up a new system. The riskis that no one will follow them. Many modern scholars dream aboutintroducing some kind of reform in Islamic law, and keep on making

different suggestions. What they really need to do is to set up a newschool. In our view, however, true reform will arise from within theestablished schools when we have mastered their rules; it cannot bedone by breaking school boundaries.

Consequently, in our view, floating between schools, or picking andchoosing from different schools amounts to blind taqld. It is quite dif-ferent from taqld that is permitted, and which we will discuss below.The method of talfq (or manufaturing a new opinion from parts of dif-ferent rules of different systems) is even worse. We will have to returnto these topics again when we take up the discussion of fatws.



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3

TAQLD AND ITS IMPLEMENTATION WITHIN THESCHOOL

Taqld, as generally understood, means following the opinion of theschools of Islamic law in matters of conduct. Thus, a H. anaf followsthe opinion of the H. anaf school, while a Shfi follows the opinion ofthe Shfi school. As opposed to this, ijtihd means that the person inneed of an opinion does not follow the opinion of any school, but de-rives the rule of conduct for himself directly from the sources of Islamiclaw. Such a person would obviously be designated as a mujtahid, andthe mujtahid must have some basic qualifications. Further, the mujtahidmust follow a system of interpretation: either an established system ofa school or one that he has devised for himself, which will mean a newschool. All persons who cannot lay claim to the status of a mujtahid,dueto the lack of requisite qualifications and skills, must follow the opinion

of some mujtahid, that is, they must perform taqld. Yet, we find that inmodern times many scholars have condemned taqld, and have insistedon the necessity of ijtihd.

The reason for this is that in the writings of some of the earlier juriststaqld is considered mandatory for all jurists and independent ijtihd isnot permitted. This is also termed as the closing of the gates of ijti-hd. There have been many discussions on this issue in modern fiqhliterature, probably started by scholars like Rashd Rid. of Egypt. Inthe light of these discussions, many modern scholars maintain that the

doors of ijtihd were never closed and this activity should be carried onin the modern world, and taqld should be shunned. Do these scholarsmean that every layman should interpret the sources of Islamic law forhimself and should avoid following the opinions of the schools of law?Do they mean that some scholars should undertake ijtihd and the restshould follow their opinions? In reality, many scholars have adoptedthis course, especially the Islamic televangelists.

There is another form of taqld too, in which a layman does not fol-low one school, but chooses whichever opinion he likes from one of the

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schools. Thus, a scholar may choose an opinion from the H. anaf schooltoday and tomorrow he may choose one from the Shfi school or from

some other school for that matter. Is this taqld or ijtihd, or is it some-thing else? We have already stated in the previous chapter that this isnot proper.

Our purpose in this chapter will be to explain the exact meaningof taqld as it is understood by the jurists. This will be followed by themethods or structure through which this permitted form of taqld is im-plemented within a school.

3.1 The Meaning and Implications of TaqldAs compared to ijtihd,thepurposeof taqld istolaydownamethod-

ology for the faqh for discovering and applying the law in the light ofthe already settled law. This is the function of the modern judge too,who discovers the law from the statutes and precedents to settle thedisputes brought to him. It is not the task of the judge to legislate orlay down new law in his judgements. Does the modern judge performtaqld too?

3.1.1 The Literal Meaning of TaqldThe word taqld is derived from qaldah, which means an ornament

tied around the neck (like a necklace) or it is the strap that holds thesheath of the sword and is usually swung around the shoulders. Theword qaldah is also used to mean the strap by which a piece of wood ishung from the neck of an animal; it prevents the animal from runningastray, because it strikes it on the knees when it tries to run. In thissense, the word taqld carries a restriction within it, and this restrictionis found in the technical meaning of the term.

3.1.2 The Technical Meanings of TaqldIn its technical sense, taqld is defined by Ibn al-H. jj as acting upon

the word of another without h. ujjah (proof or lawful authority). Thereare two ways in which this definition has been understood, and has ledto some confusion about the meaning and role of taqld in the presenttimes.

The first meaning is assigned by modern writers. Abdur Rahim, forexample, understands it to mean the following of the opinion of another



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without knowledge or authority for such opinion. In other words, whena person asks a jurist for an opinion, he should not ask him about the

basis for his opinion, whether it has been derived from the Qurn, theSunnah or ijm or some other source; he should follow it without ques-tion. This meaning is accepted generally by most modern writers, andit is this form that they condemn. The earlier jurists do not understandthe meaning of the definition in this way.

According to the earlier jurists, the word h. ujjah means permissiongiven by the sharah. Taqld, therefore, means following the opinionof another when the sharah has not given permission to do so. Thismeaning makes taqld unlawful, that is, whoever follows the opinion of

another without permission of the sharah, is committing an unlawfulact.

Following the opinion of a jurist does not fall within this meaningof taqld. The Muslim jurists maintain that following the opinion of aqualified jurist is permitted by the sharah,andisnot taqld. This meansthat there are two types of taqld: prohibited taqld and permitted taqld.To understand this thoroughly, the h. ukm of ijtihd aswellasthatof taqldneeds to be examined.

To understand the meaning of taqld in law, let us examine the defi-nition again. According to the jurists, the use of the word h. ujjah in thedefinition, acting upon the word of another without h. ujjah, excludesthis activity from the meaning of taqld. Al-Shawkn explains that theuse of the word h. ujjah excludes the following four types of activity fromthe meaning of prohibited taqld:

Acting upon the words of the Prophet (peace be on him) is notprohibited taqld.

Acting upon ijm is not prohibited taqld.

Acceptance of the word of an upright (adl) witness by the qd. isnot prohibited taqld.

The layman acting upon the word of a jurist is not performingprohibited taqld.

The H. anaf jurists may add a fifth case to this: acting upon the opin-ion of a Companion of the Prophet is not prohibited taqld. These cases



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do not fall under condemned or prohibited taqld, because the sharahhas permitted all these forms; a h. ujjah (proof) exists for such permis-

sion. Some of these cases are obvious, but the case of the faqh is ex-plained by al-Ghazl as follows:

If it is said that you have condemned taqld, and this (lay-mans taqld ofthejurist)istheveryessenceof taqld, we shallrespond that taqld is the acceptance of an opinion withouth. ujjah, but following the opinion of the mufthas been madeobligatory (wjib) for the layman through the dall (evidence)of ijm, just as it is obligatory for the judge to accept the

statement of (an adl) witness.

The authority permitting this activity, and excluding it from the mean-ing of taqld is ijm. Following the opinion of the jurist by the layman,therefore, cannot be called prohibited taqld, that is, condemned taqld.

Some jurists exclude some more cases from the meaning of con-demned taqld on the basis of the principle of necessity (d. arrah). Thefounder of the Mlik school, Mlik ibn Anas, is said to have permittedfourteen cases of taqld. A few of these are given below:

It is permitted to the layman to accept the opinion of a doctor(t.abb).

It is permitted to accept the opinion of a trader in the valuation ofproperty (as an expert).

The buyer is allowed to accept the opinion of the butcher that themeat he is buying has been properly slaughtered.

The statement of a child bringing permission to the guest at thedoor that he is allowed to enter may be accepted by the guest.

This shows that taqld isapartofourdailylivesandweareindulginginsomeformof taqld ateachstep. Thetruthofthisclaimisdrivenhomewhen we examine our modern legal system.



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3.1.3 Taqld in the Pakistani Legal SystemThe Constitution of Pakistan deems taqld obligatory in articles 189

& 201. These articles make the judgements of the Supreme Court bind-ing on all courts and the judgements of the High Courts binding oncourts subordinate to them. The doctrine of precedent and stare deci-sis are nothing more than institutionalised forms of taqld. When thelower courts follow the opinions of the higher courts they are under-taking taqld.

In addition to this, laymen accept the opinions of lawyers in theirdaily legal problems. Likewise, the courts accept the statements of wit-nesses, unless their veracity is challenged. The opinions of experts are

accepted in a host of other matters.The conclusion we may draw from this is that taqld is an essential

principle of our daily lives and is based upon division of labour wheresome persons specialize in certain areas and become experts. The muftor the faqh is an expert in his area and there should be no hesitation inaccepting his opinion by those who are laymen in his field of special-ization.

3.2 The Primary Function of a School of LawIn the Islamic legal system, the system of taqld or following prece-

dents is implemented through the schools of law. The primary functionof the school is, therefore, to make the law clear and evident for the peo-ple who follow the school, whether these are individuals, institutionsor the rulers themselves.

One often hears people complaining that the Muslim jurists dis-agree about everything. There are multiple opinions in the school and

one does not know which opinion to follow. These views are not ex-pressed by laymen and students alone; one hears even some teacherssaying this and the fact is reflected in their method of teaching as well.In other words, they indulge in what is called qla wa qla, that is, thisjurist said this and the other said that, and yet another said somethingelse.

How then can a person following a school know what the law is?Answering this question is the primary function of the school. From themultiple views existing within the school, a single opinion is preferred.



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The preferred opinion is the law. In fact, there is a special class of juristswho are assigned this function. They check many things including the

sound narration of views within the school. In cases where there issome confusion, the school will issue a fatw upholding one of manyopinions as the law to be followed. It is due to this that one hears thephrase: the fatw today is on such and such opinion.

The rule for this activity is well settled and has been observed forcenturies by the school. In fact, this has been done from the very earliesttimes when the school started maturing. The rule is: there will alwaysbe a single preferred opinion within the school.

Ibn bidn states this as follows:

The preferred opinion of the school is to be followed, andthe opinion not preferred is to be treated as non-existent (al-marjh. kal-adam). It is as if the preferred opinion has abro-gated the other opinions.15

There is, thus, no confusion about which opinion of the school is to befollowed. This also sets aside the objection raised by some that thereare so many opinions in Islamic law that one does not know which

opinion to follow. The schools bring uniformity into their law throughthis method. The method through which the preferred opinion of theschool is declared is discussed below.

3.3 The Resources of the School: Jurists, Issues and Texts

The resources of a school of Islamic law are visualized in three hi-erarchies. There is a hierarchy of jurists, a hierarchy of issues and a

hierarchy of texts. An understanding of these hierarchies provides adeep understanding of the structure and nature of a school of Islamiclaw. In this section, we will look at each hierarchy.

3.3.1 The Hierarchy of Jurists Within a SchoolThe founder of a school has two functions: he lays down the us.l or

the principles of interpretation and he uses these principles to settle the

15. Muh. ammad Amn Ibn bidn, Sharh. Uqd Rasm al-Muft(Karachi: Maktabat al-Bushr, 2009), 8; Ibn bidn, Radd al-Muh. tr, 176.



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issues of the law (fur). Thus, Ab H. anfah laid down the principlesof interpretation for the H. anaf school and he used these principles to

derive the detailed rulings of the substantive law. The founders of theother schools did the same for their schools. This type of jurist is calledthe mujtahid mut.laq or the absolute jurist. This jurist is completely inde-pendent insofar as he does not indulge in any type of taqld.

As compared to the founder, there are other jurists who are wellqualified to undertake ijtihd. These jurists, however, follow the princi-ples of interpretation laid down by their teacher. They use these rulesof interpretation to derive the substantive law, and their opinions inthis area may differ from those of their teacher. These jurists are per-

forming taqld when they follow the opinion of their teacher about theprinciples of interpretation. This type of taqld is called taqld f al-us.l ortaqld in the principles of interpretation. The jurist who performs taqld

f al-us.l is called mujtahid f al-madhhab or the mujtahid who is indepen-dent within the school.

There are other jurists in the school as well who are well qualified,but have not been granted the status of mujtahid f al-madhhab. Thesejurists perform only one type of taqld, and this is called taqld f al-furor following the decisions of the jurists of the higher grade. These juristsfollow the opinions or decisions of the school laid down by the mujtahidmut.laq and the mujtahid f al-madhhab.

In a developed legal system, it is not possible that there be just twoor three types of jurists. There are several types, and each developedschool has determined the grades of the jurists based on these types. Itis through these grades that Islamic law implements its system of fol-lowing precedents. Ibn bidn lists these grades for the H. anaf schoolas follows:16

1. The first grade: mujtahid mut.laq or mujtahid f al-shar. The muj-tahid mut.laq who is the founder of the school, that is, Imm AbH. anfah. He laid down the principles of interpretation for theschool. We have already examined these principles in all the pre-vious modules. The mujtahid mut.laq uses his principles of inter-pretation to derive the law from the sources (for the mujtahid). Inshort, this type of independent jurist lays down the principles of

16. Ibid., 17980;Ibn bidn, Rasm al-Muft, 1012.



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interpretation as well as the law. He is the absolute mujtahid whodoes not perform taqld in either of its two forms.

2. The second grade: mujtahid f al-madhhab or the mujtahid withinthe school. The mujtahid f al-madhhab performs taqld f al-us.l,that is, he follows the principles laid down by the founder of theschool, and using these principles derives the law himself. Hisopinion in the derived law may differ from that of his teacher. Ju-rists like Ab Ysuf and Muh. ammad al-Shaybn are within thisgrade in the H. anaf school. They used the principles determinedby Ab H. anfah to derive the law. In the case of muzraah (ten-

ancy), for example, they differed with their teacher. Ab H. anfahdeclared tenancy to be illegal, while the two disciples (s.h. ibayn)declared it legal. The opinion preferred by the school is that of thes.h. ibayn. The jurists in this grade are independent in all respects,except the us.l (principles of interpretation).

3. The third grade: mujtahid f al-masil or the mujtahid for new is-sues. The mujtahid f al-masil determines answers to cases thatare not settled by the jurists of the first two categories. In the

H. anaf school, jurists like al-Khas.s.f, al-T. ah. w, al-Karkh and al-Sarakhs are placed in this grade. These jurists cannot overturn thecases that have been settled by the jurists of the first two grades. Their

function is said to be the determination of new unsettled cases. Al-Dabbs is not mentioned in this category or in any other, but wefeel that he might have been on the top of the list in this category.

4. The fourth grade: as.h. b al-takhrj or those jurists who clarify thelaw of all the existing cases. The great jurist Ab Bakr al-Jas.s.s.

is placed in this category. The truth is that he was no less thanany of the jurists in the previous category, and the methodologyused by him was the same as that used by the mujtahid f al-masil.This category of jurists relies on the principles established by thejurists of the first three grades and extend the law to cases coveredby these principles. Their function is more like the modern judgewho is said to discover the law and not to lay it down.

5. The fifth grade: as.h. b al-tarjh. or those who prefer the strongeropinions in the school so as to bring uniformity into the law. Ju-



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rists like Ab al-H. usayn al-Qudr, al-Ksn, al-Marghinn (theauthor of al-Hidyah) are placed in this grade. They rely not only

on the strength of the argument but also on the narration of theissues from the earlier jurists (see below).

6. The sixth grade. The rest of the well known jurists in the H. anafschool are placed in this grade. They are said to recognise thestronger opinions preferred by the jurists of the previous grade.Most well known jurists like the authors of the authoritative texts(mutn mutabarah) would fall in this category. They have the abil-ity to recognize the stronger narrations from the weak, and the

ability to recognize rejected opinions, which they do not relate.An examination of their method and their works reveals, again,that they were no less than the jurists in the previous category.

7. The seventh grade. This is the category of the pure muqallids,whoare not able to perform any of the above tasks. Ibn al-Hummplaced himself and all the jurists of his times in this category, asin the quotation that has been reproduced later. It is obvious thatIbn al-Humm does not belong to this category; he should be in

the sixth grade at least if not higher. There can be no doubt that allthe jurists of the present times would be classified in this category,that is, where the title jurist can be assigned to them. We findit extremely difficult to classify our judges who man the courts inthis category either, as they have no training in Islamic law.

In what is to follow, we may feel the need to alter these grades inorder to make them conform to reality. These grades were identified bylater jurists according to their own understanding, so there is nothing

binding about the details, however, the idea itself is sound.3.3.2 The Hierarchy of Issues Within a School

Some writers have erroneously stated that ijtihd is a source of Is-lamic law. For the mujtahid, it is a process, the effort that he expends,for the derivation of the law. For the faqh, it is the result of the ijtihdthat is a source, not the ijtihd itself. The output or the result of ijti-hd is the record of the decisions given by the mujtahid. It provides theprecedents required by the faqh.



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In the H. anaf school, the first such source are the books calledthe Z. hir al-Riwyah written and compiled by Imm Muh. ammad al-

Shaybn. These are followed by others as shown below:17

1. Masil al-Us.l orthe Z. hir al-Riwyah. Thesearebooksthatrecordnot only the opinions of the leading jurists of the H. anaf school,but also those of other leading jurists like Ibn Ab Layl and al-Awz. The first book is called Kitb al-As. l or al-Mabst. . This isthe first book on Islamic law, and most of the opinions recordedthere are to be found today in the H. anaf school or even in otherSunni schools.

The other books under this heading are: al-Ziydt (with a hugecommentary), al-Jmi al-S. aghr, al-Jmi al-Kabr, al-Siyar al-S. aghr,and al-Siyar al-Kabr. All these books have been called Z. hir al-Riwyah as they represent the most authentic formulation of theschool. What we mean by this is that the methodology used inthese books is definitely that of the first jurists of the school andthese books have come down to us through a continuous narra-tion.

2. Masil al-Nawdir. These are cases narrated in books other thanthe Z. hir al-Riwyah.

3. The fatw and al-wqit. These are opinions of later jurists, orthe faqhs on cases not contained in the books listed at (1) and (2)above.

The rule for the above texts is that the issues (rules and rulings) inthe first category are to be preferred over those in the second and third

category, in case there is a contradiction.The Z. hir al-Riwyah were summarised under the title of al-Kf. It is

on this summary that several important works by later jurists were con-structed. For example, al-Sarakhs wrote his famous 30 volume book,al-Mabst. , as a commentary on this summary. Ab Bakr al-Ksn alsorelies on it for his al-Badi al-S. ani. Later books like al-Hidyah byal-Marghinn rely on the original as well as on later commentaries.

17. Ibn bidn, Rasm al-Muft, 19;Ibn bidn, Radd al-Muh. tr, 170.



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Books in the Mlik and Shfi school that can be compared tothe z. hir al-riwyah, though written sixty to seventy years later, are al-

Mudawwanah al-Kubr by Sah. nn for the Mlik school, and the Kitbal-Umm written by al-Shfi himself. The Z. hir al-Riwyah, however,are much more extensive.

3.3.3 The Hierarchy of Texts Within a SchoolThe texts of the school are the different categories of works pro-

duced by the jurists. In the H. anaf school, these are the earliest casebooks of the school that consist of cases settled by Imm Ab H. anfahand his colleagues. These were recorded by Imm Muh. ammad. An-

other category is that of the precis or mukhtas.ars. These books recordthe law that is to be followed. A third category that developed laterare called the fatw, which rely on the mukhtas.ars, but add additionalcases not covered by the mukhtas.ars. Commentaries have been writtenon all three categories of books and may be said to form a separate class.The description that follows is excerpted from the introduction to ourtranslation of al-Marghnns Hidyah. The detailed description maybe more useful for those interested in the nature of the texts.

It is well known that the first works on Islamic law are those writ-

ten by Imm Muh. ammad (God bless him).18 Some of these works werereferred to as the Z. hir al-Riwyah. Scholars assign several meanings tothis term, however, the meaning we are interested in is that the Z. hiral-Riwyah are the preferred rules from among the different narrationsof the rules. Imm Muh. ammads works, besides the rulings of AbH. anfah, Ab Ysuf and Muh. ammad al-Shaybn (himself), include alarge number of other views. The other views recorded are, for exam-ple, those of Zufar, Ibrhm al-Nakha, Ibn Ab Layl, Ab Thawr, andal-Awz (God bless them all). A system of law that presents such a

variety of opinions is difficult to follow, unless some rules are chosenfor practice. Accordingly, after recording the rulings of different jurists,Imm Muh. ammad himself identified some of those rules that were tobe followed by the people. These rules were referred to as the z. hir

18. Imm Mliks al-Muwat.t.a and Kitb al-thr by Imm Ab Ysuf cannot betreated as books of Islamic law proper. We do not wish to dwell on a list of ImmMuh. ammads works and the details associated with them. These are well knownand have been recorded by us in our works on Islamic jurisprudence, and by oth-ers in similar works.



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rules or the rules preferred for compliance. These rules were primarilyrecorded in Kitb al-As. l or al-Mabst. . The recording of preferred opin-

ions does not mean that other rulings were not recorded in this book.It is in al-Jmi al-S. aghr, however, that Imm Muh. ammad focused en-tirely on the preferred rules that were to be followed by the worshipperas well as the qd. . In fact, he focuses mostly on rules that help dealwith violations so that a ruling (fatw), or a decision, can be given toone who seeks it. Thus, we do not find a description of wud. or s.alt inal-Jmi al-S. aghr. According to Allmah al-Lakhnaw (God bless him),he did not mention those rules that were followed day in and day outby every Muslim. The book was directed entirely at practice (of the

jurist); the other details could be acquired from Kitb al-As. l. Al-Jmial-S. aghr was the first summary or prcis in Islamic law that listed onlythose statements of the rules that were to be followed.19 The secondsuch summary was al-Siyar al-S. aghr, also by Imm Muh. ammad. Thecreation of these summaries shows the essential task of a madhhab orschool of law: the bringing of uniformity into the law by identifyingthose rules, the z. hir al-riwyah, out of a host of rulings, that were to befollowed in practice by the school. These early summaries were not verycomprehensive, because these were also the early days of the school; ithad not acquired sufficient maturity.

The term mukhtas.ar appears to have been used for a rule book firstby al-Muzan (God bless him). He died in 264 A.H., and it is possiblethat such books were written before his time. His Mukhtas.ar is usuallypublished with Imm al-Shfis Kitb al-Umm. In the H. anaf school,therefore, it was natural that al-Muzans nephew, al-T. ah. w, should

19. Al-Jmi al-S. aghr was reported by Imm Muh. ammad entirely on the authority ofImm Ab Ysuf. This adds to its strength. Imm Muh. ammad based the workon forty kitbs, however, he did not make bbs or chapters within these kitbs.This work was undertaken by Imm Ab T. hir al-Dabbs. As to why this bookwas recommended for memorisation depended upon the nature of the cases men-tioned. These represented some of the core issues settled by the school. Accordingto some jurists, the issues of this book were held in very high esteem and it wasdeemed necessary that no one be allowed to become a qd. or permitted to issuea fatw, unless he had understood the issues of this book. Allmah al-Lakhnawhas listed about forty jurists who wrote commentaries on this book, and these areall the well known jurists whose works we study today.



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use the term first.20 After this, the writing of mukhtas.arsbecame a regu-lar feature, whether or not this title was used. Some of the well known

mukhtas.ars of the H. anaf school are the following:1. Al-Jmi al-S. aghr and al-Siyar al-S. aghr by Imm Muh. ammad al-

Shaybn (d. 189 A.H.). These have been described above.2. Mukhtas.ar al-T. ah. w by al-T. ah. w (d. 321 A.H.). He begins with

the statement that the book contains rules that cannot be ignoredor whose knowledge must be acquired. In these mukhtas.ars, thechain of transmission offiqh coming down from the earlier Immswas maintained.

3. Al-Kf by H. kim al-Shahd (d. 334 A.H.). This was the textchosen by Imm al-Sarakhs (God bless him) for his 30 volumecommentary, al-Mabst. . Al-Marawaz created this book by sum-marising Kitb al-As. l and the two Jmis through the eliminationof lengthy narrations and some repetitions.

4. Mukhtas.ar al-Karkhby Imm al-Karkh (d. 340 A.H.), the famousH. anaf jurist, who is also the author of Us.l al-Karkh. We have nothad the opportunity to examine this book, but jurists often quoteit in their works.

5. Mukhtas.ar al-Jas. s. s. by al-Jas.s.s. (d. 370 A.H.). He was al-Karkhsstudent.

6. Mukhtas.ar al-Qudr by al-Qudr. This was the text chosenby al-Marghnn for his own Mukhtas.ar. Al-Qudr (d. 430A.H.) ordered the chapters in his book according to al-T. ah. wsbook and not according to Imm Muh. ammads al-Jmi al-S. aghr.Al-Qudr is said to have written a commentary on al-Karkhs

Mukhtas.ar.

7. Tuh.fat al-Fuqah by al-Samarqand (d. 538 A.H.). He was al-Ksns teacher and his father-in-law. The book is highly orga-nized and a strict application of the term mukhtas.ar will excludeit from this category.21

20. His book is called Mukhtas. ar al-T. ah. w.21. The Author, however, says that he has brought in additional issues that were not

included by al-Qudr, and that he has tried to remove the difficulties encoun-tered in studying al-Qudr. Further, he has provided the adillah (evidences) andarguments in brief.



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8. Bidyat al-Mubtadi by al-Marghnn (d. 593 A.H.). This is thematn of which al-Hidyah is the commentary.

9. Al-Hw by Najm al-Dn al-Turk (d. 652 A.H.).10. Al-Fiqh al-Nfi by Ns.ir al-Dn al-Samarqand.

After this there was an abundance of such texts and what we men-tion below are just a few of the well known texts.

11. Al-Mukhtr lil-Fatw by al-Maws.il (d. 683 A.H.). The commen-tary on this matn is written by al-Maws. il himself and is calledal-Ikkhtiyr. This text is used in al-Azhar.

12. Majma al-Bah. rayn by al-St (d. 694 A.H.)

13. Kanz al-Daqiq by al-Nasaf (d. 710 A.H.).14. Wiqyat al-Riwyah f Masil al-Hidyah by Burhn al-Sharah

Mah. md ibn Sadr al-Sharah (d. 747 A.H.). As the title shows,it was a summary prepared from al-Hidyah itself, not only itsmatn. S. adr al-Sharah al-Thn (d. 747 A.H.), the grandson andstudent of this author, summarised the summary further, callingit al-Nuqyah, and wrote a commentary on it as well.

Some of the texts that are used by the madris for teaching, referred to asthe acknowledged texts (mutn mutabarah), are those mentioned at (6),(11), (13) and (14). Some add (12) to this list. In the grades mentionedabove, these jurists, the authors of the mutn mutabarah, are referredto as muqallids. They cannot prefer opinions, but have the ability toidentify the strong opinions that are to be followed, that is, opinionspreferred by those in the higher grades. In our view, preference shouldbe given to Bidyat al-Mubtadi as the matn for teaching purposes andthereafter al-Hidyah should be used as a commentary to understand

the rules, as we elaborate below. Further, Mukhtas.ar al-Qudr is in-cluded within Bidyat al-Mubtadi.

The mukhtas.ars listed above and even those that are not listed forma linked chain. Each mukhtas.ar borrows from the one that precedes it.In this chain, preference is usually given to those opinions that camefirst. The attempt being to commence the statement of the rules withthe opinions of the earlier Imms. This conforms with the system ofprecedents in Islamic law. In Islamic law, the precedents assigned priorityare those that were laid down first and not those that came later. The reverse



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order is followed in the common law, with the latest decision beinggiven precedence.22 The presumption in Islamic law is that the deci-

sions arrived at earlier are closer to the us.l,23

while those that camelater are to be handled with caution. Those who are interested in thistopic may examine the writings of Ibn bidn on the subject. This sys-tem of precedents attaches significance to chains coming down fromthe earlier imms, so as to distinguish the authentic from the spuriousand the strong from the weak.

There is yet another feature that we consider most important, andto explain it we have to go back to the great Imm (Ab H. anfah) andhis disciples. Roscoe Pound, in his five volume work on jurisprudence,

quotes from Hamiltons translation of the Hidyah and says that thisis the beginning of the case method of studying law.24 In our view,this was not the beginning of the case method, rather the beginningwas made by Imm Muh. ammad in his well known books, which inturn reflects the tremendous effort made by the learned Imm and histeachers. It is because of this contribution alone that he is rightly calledthe greatest (Az. am) Imm. Imm al-Sarakhs after praising the Immsays the following:

Al-Shfi (God bless him) is reported to have said, The peo-ple (jurists) are all dependants of Ab H. anfah (God blesshim) in fiqh. Ibn Surayj (God bless him), who was a leaderamong the companions of al-Shfi (God bless him), has re-ported that a man criticised Ab H. anfah, so al-Shfi calledhim and said to him, O so and so, you criticise a person towhom the entire ummah concedes three-fourths of knowl-edge when he does not concede to them even one-fourth.The man said, And how is that? He replied, Fiqh is ques-tions and responses (through the formation of cases) and heis the one who alone formulated the questions, thus, half the

22. This is a wonderful topic for research.23. That is, they were derived by those who had greater knowledge of the evidences,

as they were close to the period of the Prophet (God bless him and grant himpeace) and were more proficient in the use of us. l that they had laid downthemselves.

24. The introduction of the case method of study in American law schools is at-tributed to Langdell and Ames.



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knowledge is surrendered to him. Thereafter, he answeredall the questions25 and even his opponents do not say that

he erred in all his answers. When that in which they agreedwith him is compared with what they disputed with him,three-fourths is surrendered to him.26 The remaining27 isshared by him with all other jurists.28 The person repentedfrom what he had said.

Whatever the source of this story, its implication is true. The wordsquestions and responses means the formulation of cases, actual orhypothetical, for explaining the rules. This is what the Imm did along

with his disciples.29

Without these cases, fiqh would not have been un-derstood, neither by the H. anaf jurists nor even by those of the Mlikand Shfi schools, but that is another story, which is recorded in thenext section. It is because of these cases and the associated rules thatall jurists are dependants of Ab H. anfah Numn ibn Thbit ibn Zt.ah(God be pleased with him). It is not without reason then that Allmahal-Lakhnaw says: wa m adrka m Ab H. anfah?

The way the rules are elaborated in these works through chainsof related cases is simply outstanding and highly sophisticated. This

method was developed into an art that reached its perfection in theworks of jurists like al-Sarakhs, who added a tremendous amount ofsupporting detail to these cases. Till that time, Islamic law was a prac-tical law solving problems; it needed all this detail. Today, very fewpeople appreciate these cases or even read and benefit from this uniquemethod of elaborating the law. Credit for further organising the casesin the light of the rules must be given to H. kim al-Shahd as well. Nev-ertheless, great significance was attached to the study of the detailedcases by the earlier jurists. The idea is captured in another story. Abal-Fad. l Muh. ammad ibn Muh. ammad ibn Ah. mad, al-H. kim al-Shahd,who was a qd. , wrote two books: al-Muntaq and al-Kf. The latter

25. That is, settled the cases.26. One-half for framing the initial cases and another one-fourth for the right

decisions.27. One-fourth.28. Due to the possibility that he may have issued the correct rulings even in some of

these.29. Those who design cases today, for case studies, know that this is not an easy task.



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is the prcis prepared from Imm Muh. ammad al-Shaybns al-Mabst.and the two Jmis. There is no method more powerful than this for the

teaching of fiqh. It is also the method that dominated the scene for along time, until the appearance of the literalists.30

Ibn bidn has given a few words of warning when it comes to con-sulting later books. His text is reproduced below:

As you have known the obligation to follow the preferredopinion out of the various opinionsknow then that mostof the verdicts handed out today by merely referring tothe books of the later jurists are not trustworthy, espe-

cially the unverified verdicts in books like Sharh. al-Nuqyahby al-Quhistn, al-Durr al-Mukhtr, and al-Ashbh wa al-Naz. irfor they contain in many cases the preference ofa rejected opinion and the preference of that which is theopinion of another school, not preferred by anyone in thisschool.

The transmission of an opinion may occur in about 20 booksof the later jurists and still the opinion may be incorrect as

the first jurist has erred and those coming after him havetransmitted the opinion from him.31

Ibn bidn is trying to tell us that a case should first be traced inthe earliest books, and then in the later. When a case is found, it needsto be subjected to verification. This verification means determining theunderlying rule. Without tracing the rule employed, thefaqh can neverbe sure how the new case is to be settled. The tracing of the rule isa process that is identical to tracing the rule and ratio decidendi from

a series of cases in modern law and separating it from the obiter dicta.This process is the essence of the methodology of takhrj. The rule onceextracted is used to settle the new case. It is also a process that the muftneeds to acquire before he can be called a true muft.

30. The above passages have been reproduced from the introduction to our transla-tionoftheHidyah. Burhan al-Dn Ab Bakr Marghnn, al-Hidyah: The Guidance,trans. Imran Ahsan Nyazee, 4 vols. (Bristol: Amal Press, 2006), vol. 1, xiii-xvii.

31. Ibn bidn, Rasm al-Muft, 13.



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3.4 The Integral Bond Between the Four Sunni Schools

There is a saying that was and is current among the H.

anaf jurists:The seed of the discipline offiqh was sown by Ibn Masd (R), irrigatedby Alqamah (R), harvested by al-Nakha (R), threshed by H. ammd(R), milled by Ab H. anfah (R), kneaded by Ab Ysuf (R), baked byMuh. ammad (R), and all the jurists partake of this bread.

32 The truthof this statement cannot be denied by anyone. In fact, we would liketo add to the following words to this quotation: And garnished by al-Sarakhs (R).

As has already been explained, the schools of Islamic law are not

sects; they are systems of interpretation. Each school has its own inde-pendent set of principles, which cannot be mixed up with the principlesof other schools without causing inner contradictions and analytical in-consistencies. The set of principles adopted by each school is followedby the jurists within the school. It is obvious that the use of another setof principles, of another school, may lead to a different legal opinionon the derived law. Despite these differences, an integral bond existsbetween the schools both in the area of fiqh as well as us.l al-fiqh. Inthis section, we will explain the nature of this integral bond or organic

link. The link shows that the schools developed through an initial ef-fortbytheH. anaf school and later by mutual cooperation of all the fourschools.

We may recall from the history of Islamic law that Kufah, a city inIraq, gradually turned into a centre offiqh and learning. The foundationfor this was laid by the decision of Umar (R), who sent Abd Allh ibnMasd (R) (d. 32 A.H.) as a teacher and qd. for this area. This learnedCompanion (R) trained a large number of jurists, who in turn producedstudents many of whom attained great fame. Among these jurists wereAlqamah al-Nakha, his nephew Ibrhm al-Nakha, Qd. Shurayh. ,and H. ammd ibn Ab Sulaymn.

The founder of the H. anaf School was Ab H. anfah Numn ibnThbit ibn Zt.ah, possibly of Afghan origin. Imam Ab H. anfah wasborn in Kufah in the year 80 A.H. (699 A.D.) and died in 150 A.H. (767A.D.). He is also called Imm Az. am or the Great Imm. He began hisearly education in scholastics (kalm) and later developed an interest

32. Ibn bidn (God bless him) quoting al-H.

askaf. Ibn bidn, Radd al-Muh.tr, 141.



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for jurisprudence under the tutorship of his Shaykh, H. ammd ibn AbSulaymn (d. 120 A.H.).

He was a textile merchant by profession and it is said that due to thisreason his fiqh reflects his practical approach to legal problems. AbH. anfah was later given the title of the leader of the school of Ahl al-Ray. He is reported to have met some Companions (R) as well, foremostamongst them is Anas ibn Mlik. In this sense, he was a Follower of theCompanions (R).

Out of the pupils of Ab H. anfah, four are famous; they were: AbYsuf Yaqb ibn Ibrhm al-Ans.r (113182 A.H.), Zufar ibn Hud-hayl ibn Qays (110158 A.H.), Muh. ammad ibn al-H. asan ibn Farqd

al-Shaybn (132189 A.H.), and H. asan ibn Ziyd al-Lul. Throughthese disciples, the fame of the H. anaf school spread far and wide. AbYsuf was appointed judge in Baghdad and later became the Chief Qd.with authority to appoint judges all over the kingdom. He, thus, hadthe opportunity to propagate the school of the great Imm.

Muh. ammad ibn al-H. asan al-Shaybn, who must have been 18 yearsold when Ab H. anfah died, takes the credit for recording not only thefirstbooksoftheH. anaf school, but also those of the entire Islamic legalsystem. The books written by him were of two types: the first werecalled z. hir al-riwyah or books of the primary issues, while the secondwere called al-nawdir or unusual cases. In addition to the above, hewrote Kitb al-H. ujjah al Ahl al-Madnah, a book on the use of traditions,and another book on traditions called al-thr. His version of Mliks

Muwat.t.a is also considered highly reliable. Ab Ysuf also wrote abook on traditions called al-thr, and his Kitb al-Kharj is very wellknown. The above books form the foundation of H. anaffiqh.

The distinctive feature of Imm Muh. ammads books and hence

those of the H. anaf school is that they record fiqh in the form of issuesand cases. Some of these were what are called hypotheticals in lawschools today. Hypotheticals are carefully prepared cases for impart-ing instruction. Imm Ab H. anfah is credited with the creation of allthe issues and cases, which run in hundreds of thousands. It is obviousthat some of the cases had come down from his teachers, while othersmust have been brought up by his able disciples. Nevertheless, the ar-rangement, refinement and organization of these cases is the work ofthis great jurist, due to which he earned the title of Imm Az. am.



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It is these cases and issues, and the related case-method, that hasled to the development of fiqh and Islamic law. They were deemed so

important that jurists not belonging to the H. anaf school also latched onto them and tried to give their own views according to the principles ofinterpretation preferred by them. To understand this process and howthe link was established we may briefly note some poin

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