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.

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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.

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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].

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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].

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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!

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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)

From: http://www.ilmgate.org/?p=222

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

Meeting of Imam Malik and Imam Abu Hanifa

Category: SOUND

Before Malik and Abu-Hanifa’s encounter, Imam Malik used to say, “Beware of the people of opinion.” Abu-Hanifa’s school was called the “school of opinion.” Before their meeting, there was a lot of talk and exchange of letters but they only met during the rituals of the Hajj.

When they finally met, they chose to address three issues which were viewed differently by each party. The first jurisprudential issue was about how to address hypothetical questions; things that had not taken place yet. In Imam Malik’s juristic school of thought, we should not imagine situations and ask about things that have not happened, as this distracts people from already existing issues and lead to controversy. Imam Malik brought his evidence from various ayahs and ahadith. He stated the ayah where Allah (SWT) says what can be translated as, “They ask you concerning the new moons (Literally: crescents).” (TMQ, 2:189). Such questions are meaningless. Allah (SWT) replies in the ayah, that can be translated as, “Say, “They are fixed times for mankind, and (for) the Pilgrimage.” (TMQ, 2:189)

His other evidence was that Omar Ibnul-Khattab (RA) cursed the one who asked about situations that have not happened and used to say, “Do not engage us with things that have not happened, keep people busy with the truth instead.”

People used to come to Imam Malik and ask him hypothetical questions and he used to get angry and tell them not to ask about things that have not happened yet. Those people were usually from Iraq where Imam Abu-Hanifa was, who supported this kind of questions.

As for Imam Abu-Hanifa, his approach was based on inventing situations that have not happened. He invented 60, 000 such situations.

In their meeting Imam Malik disapproved Imam Abu Hanifa’s view. Abu-Hanifa replied that the circumstances in Iraq are different from Madinah. Iraq is the capital of the Caliphate and everyday there are new things being introduced and they should be prepared, while in Madinah problems are fixed and limited.

Then, he gave an example when he discussed with his students a situation of a woman whose husband traveled and was absent for so long that she thought he was dead and hence she married another man. Suddenly, the man returned. What should be done then? Imam Malik wondered why they would ask about things that have not happened, but Abu-Hanifa said that in Iraq, where soldiers went on conquests, this might occur and they should be ready for such situation. Imam Malik was silent.

Imam Abu-Hanifa reminded him of what the Prophet (SAWS) said when a man came to him saying, “Imagine if a man comes to take my money, what shall I do?” The Prophet (SAWS) told him not to give it to him. The man asked again, “Imagine if he fights me?” The Prophet (SAWS) urged him to fight him too. The man asked, “Imagine if he killed me? The Prophet (SAWS) said that he would be a martyr. The man asked once more “Imagine if I killed him?” The Prophet (SAWS) said that the man killed would go to the hellfire.

Abu-Hanifa said that the Prophet (SAWS) was asked by about a hypothetical situation four times. When Malik said that this was for a purpose, Abu-Hanifa replied, “In Iraq we do it for a purpose too.” Then, Al-Layth Ibn-Sa’ad said, “Glory to Allah. By Allah, you are enriching Islam.” Imam Malik kept people away from indulging in trivial issues and Imam Abu-Hanifa was questioning the future to protect people. That was what the Prophet (SAWS) did. He forbad asking about things that are hypothetical and replied to an important situation that could happen in the future.

Both Imams reached a conclusion of holding on to what they were doing, but to then integrate both approaches for the benefit of Islam.

The four principles previously mentioned certainly to this debate. Their difference of opinion is a natural phenomenon because the minds and environment of Iraq are unlike those of Madinah. Their difference of opinion resulted in an environment that enriched Islam. The calm and honest dialogue helped in presenting the various opinions and truths from all aspects. Meanwhile, the manner of conversation between both men was civilized, polite and outstanding.

The issues they discussed were not petty. Nowadays some people leave the obligatory issues related to the unity of the Muslims and dispute over trivial matters. Both Imams differed on core issues, but there was love and understanding between them.

The second issue which the imams disagreed on was that of the consensuses. In Islam, in order to reach a solution for any question is look it up in the Qur’an. If you did not find it, to look it up in ahadith, if not; then apply the rule of the consensus of the scholars.

Imam Malik believed that the consensus should be that agreed by the people of Madinah only because the companions of the Prophet (SAWS) lived and died there and so did his nine wives who saw all his actions and witnessed all his deeds. They are about 10,000 companions.

A man came to Imam Malik and asked him about disputed matters. The Imam said, “Search for the opinion of the people of Madinah. When you find it, be sure that it is the truth.” He said to another one, “You can find knowledge in Madinah, as Qur’an was not revealed in Euphrates (meaning Iraq and Abu Hanifa’s school).”

Imam Abu Hanifa was 13 years older than Imam Malik, yet he respected him. He replied, “Malik, the conquests during the reign of Omar Ibnul-Khattab distributed the Companions (RA) all over the world. You say that in Madinah there are 10,000 companions. In the last battle of the Prophet (SAWS) there were about 120,000 companions, so where are the rest? You cannot deny that Omar Ibnul-Khattab sent the companions particularly to teach people in different countries.”

He started to numerate some companions such as Mo’az Ibn-Jabal whom the Prophet (SAWS) described to be the most knowledgeable and sent him to Yemen. Also, he mentioned Abdullah Ibn-Mas’od whose way of reciting Qur’an was recommended by the Prophet (SAWS) for the people. He added the names of Abu-Dthar, Zobair Ibnul-A’wam, and Sa’ad Ibn-Abu-Waqqas in Egypt, Hudthayfa Ibnul-Yaman, Abdullah Ibn-Mas’od, and Ali Ibn-Abu-Talib in Iraq, Abu-Ubayda Ibnul-Jaraah, Bilal and Abul-Dardaa’ in Syria, etc.

Then, he narrated the hadith of the Prophet (SAWS) where he said that his companions are like the stars any of which can guide people. Imam Abu-Hanifa went on to say that the brilliance of Omar Ibnul-Khattab is what led him to send the companions all over world and kept some in Madinah to keep a balance. Thus, Imam Abu-Hanifa showed Imam Malik that the distribution of the companions was for the sake of the integration of the ummah.

Al-Layth Ibn-Sa’ad said, “By Allah, this also, is an integration of the ummah.”

When you look from another angle you can see another aspect of the truth. This is the virtue of difference; to help you see the truth from all its aspects. If all people think alike, they will see only one side of the truth, but Allah (TWT) whose name is the Truth wants you to see all the sides.

The third issue tackled in the meeting was about the school of opinion and hadith. Imam Abu-Hanifa expands the explanation of the ahadith to the extent that he concluded 100 lessons from one hadith. Imam Malik saw that it as an exaggeration and overloading the hadith which the Prophet (SAWS) did not want.

Imam Abu-Hanifa replied that in Iraq, Greek, Roman and Persian philosophies and sciences are invading them, so he needs to keep people fixed on the path of the Prophet (SAWS). That is why he was searching in ahadith to counter the new ideas. On the other hand in Madinah, there are none but the companions and their followers, so there is no need for expansion in elaborating ahadith. Al-Layth Ibn-Sa’ad said, “This too is integration” Both Imams complement one another in keeping Islam.

If you discuss your problems calmly and honestly with your wife of husband, many problems will be solved. Similarly, if the politicians in Iraq, Darfur, and Lebanon, the religious scholars and the scientists do the same, many problems will be solved.

After the two Imams left the meeting, Al-Layth Ibn-Sa’ad, an Egyptian Imam whose juristic school of thought was just as superior as the other four Imams but had no students to spread it, was keen on knowing the impression of both sides.

He went to Imam Malik and asked him. Malik wiped his sweat and said, “By Allah, Abu-Hanifa made me sweat. By Allah, he is a true jurist. I’ve never seen a man debating like that. By Allah, if he told you that this iron rod is made out of gold, he would convince you.”

Al-Layth went to Imam Abu-Hanifa who said, “I debated hundreds of men, but have never seen a man accept the truth as fast as him.”

We need to teach the coming generations these manners. This is important for everyone; journalists, politicians, people working in the media, scholars, husbands and wives, parents and children.

What happened after that? First, Imam Abu-Hanifa sent his son Hammaad to Madinah to learn the jurisprudential approach of Malik and his book ‘Al-Mu’ata’. Then, Imam Malik asked for the books of Abu-Hnifa to benefit from them.

Meanwhile, Muhammad Ibnul-Hassan, a student of Abu-Hanifa’s, held a session in Iraq to present the approach of Malik.

Once, Imam Abu-Hanifa sent to Imam Malik consulting him on an issue before announcing his opinion to the public. Abu-Hanifa did not agree about naming a sinful person a disbeliever. Imam Malik agreed, so Abu Hanifa announced it. This did not arise from one meeting only, but there were numerous correspondences which contributed more to their integration.

The Abbassid Caliph Al-Mansour once came to Imam Malik offering him to cancel all other jurisprudential approaches, making Malik’s approach prevail, and also writing his book in gold and keeping it inside the Ka’ba.

Imam Malik who once rejected all other approaches and asserted on the opinion of the people of Madinah told him not to do so because the companions of the Prophet (SAWS) are spread all over the world. Those were Abu-Hanifa’s words from their encounter.

Look at the superb manners and morals of differentiating with someone as well as handling the truth.

The first principle indicates that difference is a universal fact that needs to be respected. You have to respect that variation is a part of our existence. The second principle shows that variation complements us; it is an advantage and not a drawback. You have to look at this as an enriching advantage. The third principle is that at the moment of dispute, calm and honest dialogue helps you see the truth from all perspectives. Truth is one, but it has many aspects and paradigms. The fourth and final principle is that at the moment of conflict; never forget the proper manners of dialogue. You must believe in those four principles as the basis of coexistence.

Source: SunniForum.com