Monday, April 25, 2011

Levels of Jurists and How Fatawa are Made

Category: SOUND

Levels of Hanafi fuqaha and scholars.

1. Mujtahidin fil Shar'a – These are those who don't follow any other mujtahids and are the source of methods and principles to be followed by others.

These include the likes of Imam Abu Hanifah, Imam Malik ibn Ans, Imam Muhammad bin Idris Shaf'i, Imam Ahmad bin Hanbal [may Allah have mercy on them], etc.

2. Mujtahidin fil madhab – These are those who have the capability of deriving ruling (ijtihad) from the sources of Shari’a and even though they disagree with mujtahideen fil shara on certain matters but in principle (usool) they are in conformity with them.

These include the likes of Imam Abu Yusuf and Imam Muhammad bin Hassan al-Shaybani [may Allah have mercy on them].

3. Mujtahidin fil Masail – These are those who derive ruling (ijtihad) in those issues (masail) regarding which there is no report from mujtahideen of the school.

These are the likes of Imam Kashaf, Imam Tawahi, Shams al-Ai’ma Abul Hassan Karkhi, Shams al-Ai’ma Halawai, Shams al-Ai’ma Sarakhsi, Imam Bazdawi, Imam Qadi Khan [may Allah have mercy on them], etc.

4. Ashab Takhrij – This group does not have authority for ijtihad. They just clarify what are not clear in their school books based on other texts of their imams .They very rarely draw some rulings from the nas, when there is none.

Example of this level would be Imam Bazzazi, Imam Abu Bakr al- Jassas and Abu Abd Allah al-Jurjani [may Allah have mercy on them].

5. Ashab Tarjih - This group distinguishes between different narrations within the madhab and decide on those opinions which are better and more accurate than the others among the opinions and reports made in their school.

Example of these would be Imam Marghinani [author of Hidaya], Imam Abul Hassan Ahmad Qudoori, Muhaqqiq mutlaq Imam bin Humam [may Allah have mercy on them], etc.

6. Ashab Tamyiz - This level of muqallid scholars are able to distinguish between strong and weak opinions within the school as well as Zahir al-Riwayah and Nawadir.

They include the likes of Imam Abul Fadl Abdullah bin Mahmud [author of Mukhtar], Taaj al-Sharia Mahmud Mahbubi al-Bukhari [author of Wiqaya], Imam Muzaffaruddin Ahmad bin Ali [author of Majma al-Bahrain], Imam Abul Barakaat al-Nasafi [author of Kanz], as well as Imam ibn Nujaym al-Hanafi [may Allah have mercy on them all].

7. Simply Muqallids - These are those who simply memorized the majority of the hukms and problems and their solutions in their schools of thought.

Many faqihs after 800 A.H. are in this group such as Allamah Ibn `Abidin [may Allah have mercy on him].

Taken from Majuma al-Fatawa of 'Allamah Abd al-Hayy Lakhnawi and Usul al-Fiqh of Dr. Yusuf Ziya Kavakci.

Some include Imam Abu Yusuf and Imam Muhammad bin Hassan al-Shaybani among level 1 in the above. They just agreed with Imam Abu Hanifah.


Shafi'i Classification:

Imam al-Nawawi, Imam Jalal al-Din al-Suyuti, Ibn Hajar al-Makki [may Allah have mercy on them] and other Shafi`i scholars classified the faqihs in the following manner:

1. Mujtahid al-Mutlaq:

a. Mustaqil: He is a mujtahid in Shari`a.The leaders of the four madhabs belong to this classisfication and are experts in their fields.

b. Muntasib: He is free in the madhab. He follows the methodology of his School, but is free in al-furu' ( detailed issues of fiqh).

They include the likes of Imam al-Qaffalal-Saghir, Imam al- Haramain, Imam Ghazzali, Imam Abu Ishaq al-Shirazi, Imam Abu Ali al-Marwazi [may Allah have mercy on them].

2. Mujtahid al-Muqayyad:

a. Mujtahid in madhhab: They make ijtihad only in their madhabs.

b. Mujtahid fi 'l-Fatwa: This group of mujtahids are those who give fatwa by preferring one of the opinions expressed in their madhab. Shafites do not come down to accept the other levels of scholars as faqihs.

Excerpts from Usul al-Fiqh of Dr. Yusuf Ziya Kavakci.


Al-Ifta' (Fatwa)

A concept which may also be related to ijtihad is al-Ifta' (to give Fatwa). Fatwa is the Shar`i answer to a question related with an Islamic issue. The plural is Fatawa, the person asking the question is mustafti, and the one who gives Fatwa is mufti.

Mufti must, in reality, be a faqih at the level of ijtihad. So according to the Usul al-Fiqh, real muftis are mujtahids and naming muftis the persons who are not at the level of mujtahids is nothing, but allegorical way (majazi). Muftis, if they are not at the level of mujtahids, are just naqils (narrators/reporter).

Fatwas are given by:

1. Ijtihad.
2. Takhrij.
3. Reporting the view of mujtahids.

Each school of thought has its own way of dealing with the ifta institute with some requirements.

Hanafis have three types of sources:

1. Zahir al-Riwayah: Ijtihads and opinions of Imam Abu Hanifah, Imam Abu Yusuf and Imam Muhammad [may Allah have mercy on them]. This group is the strongest of its kind.

2. Nawadir: These are not as authentic as Zahir al-Riwayah.

3. Nawazil (al-Waqi`at, al-Fatawa): These are the opinions of imams other than Abu Hanifa, Abu Yusuf and Imam Muhammad.

Mufti in each case must mention the mujtahids name he is referring to and the name of the book he is basing his fatwa on. Of course, there are some rules and regulations to be followed by muftis when he is to select one opinion from several opinions available on the subject in his madhhab.The enormous amount of literature already available in this area will help the mufti in his Fatwa.

[Excerpts from Usul al-Fiqh of Dr. Yusuf Ziya Kavakci].


The steps a mufti must follow in finalizing their fatwa:

1. First, he must find unanimously accepted opinions of Faqihs.

2. Second, he must follow the opinion of Abu Hanifa [may Allah have mercyon him] if there is a conflict of ideas among the Ahnaf with the following exceptions:

a. Imam Abu Yusuf's [may Allah have mercy on him] opinions are to be preferred in Judicial Procedures and witnesses;

b. Imam Muhammad bin Hassan al-Shaybani's [may Allah have mercy on him] views are to be based on Zawi 'l-Arham group in Islamic Inharitance Law;

c. Abu Yusuf and Muhammad must be followed in traditionally changeable rules;

d. If there is any ijma` on these two imams, that must be followed;

e. If one of the opnions have been favoured by later faqihs, that opinion must be depended on;

f. Any rule based on istihsan technique is preferred to qiyas.

g. Any hukm of in which dalil and illah is mentioned is preferable to one which has none.

h. Zahir al-Riwayah comes first, then Nawadir.

3. Third, he will give fatwa based on Imam Abu Yusuf, then on Imam Muhammad if no Riwayah is available from Abu Hanifa. In case, there is none reported from these three imams, fatwa must be based on Imam Zufar, Hasan b. Ziad [may Allah have mercy on them], etc.

4. Then comes Imam Tahawi, Abu Hafs al-Kabir, Abu Ja`far and Abu 'l-Lays [may Alla have mercy on them], etc.

This is the prescribed way which must be followed by general levels of muftis and qadis in general.

[Excerpts from Usul al-Fiqh of Dr. Yusuf Ziya Kavakci].


There was a thread on SunniForum discussing the complaints with a particular work of the scholar Ibn Abidin (ra) and the over reliance on it by Hanafi 'ulema, and someone suggested the "simple" task of making a new commentary on it, elaborating on each ruling. Here was Mufti Husain's (Ameer of SunniForum) reply:

While the solution might sound simple, it is far from it.

Nobody knows all the masa'il therein that are contrary to the mufta bihi [relied upon position of the madhab] and finding them all would be a mammoth task.

It would first require collecting all the sources used by Ibn Abidin, in addition to hundreds of Hanafi works which he didn't have acccess to.
This would take months, even if carried out by a group of specialists in manuscripts and would costs tens of thousand of dollars.
One folio ( 2 manuscript pages) from Turkey costs between $1-$4, so just one manuscript of 1000 pages would put you back a few thousand dollars!

Then a big group of specialists in Fiqh would be require to take every ruling in the Hashiyah and check up this ruling in all those hundreds or thousands of works.
It could take weeks just to check up one mas'alah!
Imagine the cost of such a project, as salaries would have to be paid to all these specialists, in addition to other costs.

Thereafter, it would have to be seen whether Ibn Abdin
- had quoted correctly from the various works
- had mentioned the various views on the issue correctly
- had relied upon the strongest view.

Wherever any shortfall is found, it would have to be corrected.

I have personally spent weeks researching certain issues, where I found Allamah Ibn Abidin relying upon a view that isn't the strongest in the madhab, due to being unaware of certain important quotes and also due to relying upon certain quotes which seem to be erroneous, then in turn I found nearly every single book of Fatwa after Ibn Abidin relying totally on this weaker view advocated by Ibn Abidin, due to them expecting him to have properly researched the issue!


The Division of Hanafi Jurists by Era

ʿAllāmah ʿAbd al-Ḥayy al-Laknawī divided the Ḥanafīs into three distinct categories in accordance with the age in which they lived and the importance of their legal opinions:

1. Salaf/Mutaqaddimīn
2. Khalaf/Mutawassiṭīn
3. Mutaʾakhkhirīn

According to Laknawi, the Mutaqaddimīn begin with Imam Abū Ḥanīfah and ends with Imam Muḥammad. In other words, the Mutaqaddimīn are the first generation of Ḥanafī scholars.

The age of the Mutawassitīn begins after Imam Muḥammad and continues until the time of Shams al-Aʾimmah al-Ḥalwānī (d. 448AH, or 449AH, or 456AH).

The age of the Mutaʾakhkhirīn begins after Imam Shams al-Aʾimmah al-Ḥalwānī and ends with Ḥāfiẓ al-Dīn al-Bukhārī (d. 693AH), and includes the likes of Shams al-Aʾimmah al-Sarakhsī (d. 500AH), Marghīnānī (d. 593AH), and ʿAbdullāh ibn Maḥmūd, the author of al-Mukhtār (d. 683AH). (al-Fawāʾid al-Bahiyyah 241, Maṣādir al-Fiqh al-Ḥanafī of Ḥāmid Abū Ṭālib 17)

It should be noted, however, that the above categorization is not unanimously agreed upon, as some of the scholars considered the Mutaqaddimīn/Salaf to be those scholars who studied with the three Imams of the madhhab, namely Abū Ḥanīfah, Abū Yūsuf, and Muḥammad. Everyone else, according to them is considered amongst the Mutaʾakhkhirīn. This consideration takes into account the frequent usage of the term Mutaʾakhkhirīn by Ḥanafī scholars for those who followed Imam Ḥalwānī in age. The above division also doesn’t take into account the scholars who followed Imam Ḥāfiẓ al-Dīn al-Bukhārī and are considered amongst the preeminent scholars of the madhhab. (al-Madhhab ʿinda ʾl-Ḥanafiyyah 3, al-Fatḥ al-Mubīn 19)



Source: These were all from posts on Special mention to user 'Saad'

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