بسم الله الرحمن الرحيم
Wa `alaykum as-salam wa rahmatullahi wa barakatuh
I thank you for your response on behalf of Mufti Ebrahim. Please convey my sincere apologies to Mufti Saheb for burdening him with this issue.
I seek to draw your attention to the following points that arise from your letter:
- the citations from Ibn `Abidin, Ibn al-Humam and his commentator
- restriction of the licence to depart from one’s madhhab
- defining talfiq
- holistic departure from madhhab
- the wife’s duty
- ‘amal bi madhhab akhar as opposed to ifta bi madhhab al-ghayr
- THE CITATIONS FROM IBN `ABIDIN, IBN HUMAM AND AMIR BADSHAH
There seems to be a misunderstanding here. The text to which I made reference was essentially that of Amir Badshah in his commentary on Ibn al-Humam. Ibn ‘Abidin makes reference to this same text. Essentially there is thus only one text, and not two. It is the text that appears in Taysir at-Tahrir and is referred to by Ibn ‘Abidin. The words “yajuz taqlid al-mafdul…” which were included in my letter were merely the heading in the margins of Radd al-Muhtar under which the reference to the text in question appeared. I cite here the line from Ibn ‘Abidin:
ثم ذكر أنه لو التزم مذهبا معينا كأبي حنيفة والشافعي فقيل: يلزمه، وقيل: لا، وهو الأصح.
Ibn al-Humam has discussed these two points (taqlid al-mafdul and iltizam madhhab mu‘ayyan) separately, the latter following upon the former. My citation of Ibn ‘Abidin as well as Ibn al-Humam was restricted to the issue of iltizam madhhab mu‘ayyan, and not of taqlid al-mafdul.
Thus the core issue remains not whether taqlid of the mafdul is permissible despite the presence of an afdal, but rather whether a follower of a madhhab is permitted to depart from his madhhab in singular instances.
However, having brought up the issue of taqlid al-mafdul there are two things which I should mention here:
Firstly, I cannot agree with your particular understanding of taqlid al-mafdul ma‘a wujud al-afdal. Your attempt to restrict it to the case of muqallid sticking to the taqlid of his imam despite his conviction that another imam is afdal, is arbitrary. A look at discussion on the point in the usul literature – where factors such as wara‘, and a concept of a‘lamiyyah based upon tasamu‘ al-akhbar, and not ma‘rifat al-adillah, feature prominently – would perhaps not fail to persuade you that what we have here is a case much wider than the parameters which your understanding of the issue contemplates.
Secondly, I do not necessarily agree with the contention that this issue has no bearing upon the case in question. I might agree with you that taqlid al-mafdul has no bearing upon al-ifta bi madhhab al-ghayr, but, as you will probably realise further on, the issue of al-ifta bi madhhab al-ghayr was never contemplated as playing any sort of role in the case in question. It has been an unfortunate misunderstanding that led to the question of al-ifta bi madhhab al-ghayr being introduced into this case. I will return to this subject later, in sha Allah.
Before continuing, I have to point out that the alleged indication in Ibn ‘Abdin’s words, in terms of which the issue of taqlid al-mafdul refers to a mujtahid fil-madhhab, still escapes my notice. My understanding of his text as referring to a common muqallid remains free from turbidity. The operative word taqlid presents sufficient, and as yet unrebutted evidence.
- RESTRICTION OF THE LICENCE TO DEPART FROM ONE’S MADHHAB
I am glad that we seem to see eye to eye on our basic understanding of Ibn al-Humam and his commentator. Our paths diverge however, when we come to the thorny issue of parameters for the licence for departure as given in the words of Ibn al-Humam and Amir Badshah.
My reading of the Hanafi usul literature (and I am referring to authors such as Ibn al-Humam in Tahrir, Ibn Amir al-Haj and Amir Badhshah in their respective commentaries upon it, Mulla Muhibbullah Bihari and Mawlana ‘Abd al-‘Ali Bahr al-‘Ulum of Lucknow in Musallam ath-Thubut and Fawatih ar-Rahmut respectively) leads me to conclude that the sort of restriction that Mufti Shafi imposes in Itmam al-Khayr is a novel development, and indeed an unprecedented step, in Hanafi usul. Mention of the restrictive criterion of darurah shadidah in departure from madhhab is conspicuously absent in the works of authors as late as Ibn ‘Abidin, Shah Waliyyullah and ‘Abd al-‘Ali Bahr al-‘Ulum.
I do not think you are quite correct when you aver that the condition of darurah is echoed in the writings of Ibn ‘Abidin. In Sharh ‘uqud Rasm al-Mufti he discusses the question of a Hanafi mufti giving fatwa according to a marjuh or da’if view within the confines his own madhhab, not a view of an altogether different madhhab. As for the reference which you adduced from Radd al-Muhtar, – vol.1 pg.74 – , due to the difference in edition, you will have to provide me with the chapter and topic.
In fact, a proper reading of Mufti Shafi’s words in Itmam al-Khayr will inevitably lead to the conclusion that the imposition of the condition of darurah shadidah was neither mentioned nor contemplated by the Hanafi writers in usul. After describing the inherent lenience in Ibn al-Humam’s statements as follows (Jawahir al-Fiqh vol. 1 p. 162):
وفيه من المساهلة في هذا الباب ما لا ينبغي إظهاره والساعة [كذا في المطبوع، ولعل الصواب: وإشاعته] في زمننا هذا الغلبة [كذا فيه، والصواب: لغلبة] الفساد واتباع الهوى، فرأينا طيه على غيره أولى
he concludes the treatise with the remark that while the mutaqaddimin of the Hanafi madhhab stipulated for departure from one’s madhhab only one condition – ‘adam tatabbu‘ ar-rukhas – the predominance of ittiba‘ al-hawa has necessitated the adoption of darurah shadidah. (p. 166)
Mufti Shafi’s characterisation of the view expressed by Ibn al-Humam and his commentators as “lenient”, and his adoption of darurah in direct response to the deterioration of the society of his own time can only mean that when Ibn al-Humam et al wrote what they wrote, they did not contemplate the stipulation of darurah as a condition for departure from madhhab. In essence, what Mufti Shafi has done was not done by way of clarifying what the earlier fuqaha meant when they stated their position, but rather to amend their stated position. This is a distinction that has to be kept in mind when studying the earlier texts and comparing it to later restrictions.
What needs to be determined hereafter is to what extent this amendment was echoed and accepted by the rest of the Hanafi world in particular, and the fuqaha of other madhahib in general. As far as I am aware, the Hanafi ‘ulama of the Middle East (Syria, for example) have not adopted this position. The same goes for the rest of the madhahib.
My own position on these issues remains firmly informed by the position taken by the fuqaha of my madhhab.
- DEFINING TALFIQ
In response to your statement “you are well aware that Talfeeq is unanimously impermissible”, I wish to know what meaning you apply to the term talfiq. If you take it to mean what the fuqaha of the various madhahib have always held it to mean (i.e. the execution of one deed by following the opinions of different authorities on separate aspects of it, in such a way that the deed eventually executed would not be recognised by any single one of those authorities as valid), then we might achieve a certain measure of concurrence. (Check this meaning of the term on the last page of Itmam al-Khayr) But it has be noted that in this sense this issue plays no role in the case in question.
Secondly, if you take the term to mean simply departure from madhhab, then I must submit that while such an istilah will be allowable (idh la mushahhata fil-istilah) —despite the resultant ambiguity, and the departure from the classical meaning of the term—, I cannot agree that it is unanimously impermissible.
Alternatively, if you mean by it departure from a madhhab to the degree that one focuses solely upon the rukhas of the various madhahib, then I have to submit again that this phenomenon already possesses its own descriptor in the terminology of the fuqaha, which obviates the need for the adoption of a different term.
- HOLISTIC DEPARTURE FROM MADHHAB
In both cases of departure from madhhab – holistic as well as atomistic – the essential motive is the same: Adoption of the course prescribed by the alternative madhhab for the sake of the comparative ease which it offers. This essential motive remains unchanged by the fact that the conversion would be only in one instance, or for the rest of one’s life.
I have two comments to make about the obligation of adopting the rukhas of the new madhhab along with its ‘aza’im:
– Firstly, it runs contrary to original position of the Hanafi madhhab as expressed in those citations from its usul literature which I have mentioned (and I believe my understanding of those citations to be corroborated, and not contradicted by Mufti Shafi)
– Secondly, it fails to satisfy the requirement of darurah as imposed in the amended position of Mufti Shafi, as you yourself have admirably outlined.
- THE WIFE’S DUTY
I cannot agree that the wife in such a case has no option but to follow the dictates of her madhhab. The position of my own madhhab about the general public (‘awamm) is that the general rule of conforming to a madhhab does not preclude any of them from leaving the bounds of his madhhab in singular instances. Thus a Shafi‘i is permitted to follow a ruling of the Hanafi madhhab, or to refer to a Hanafi mufti in singular cases. Also, practicing upon the comparatively easier view of a different madhhab does not by itself constitute tatabbu‘ ar-rukhas. This phenomenon (in which the operative word is tatabbu‘) only comes into existence when there is a practically obsessive search after the easiest position on virtually every issue that arises.
Time does not allow me to adduce all the relevant quotations, but I should like to cite the following words of Shah Waliyyullah:
فما ذهب إليه ابن حزم حيث قال «التقليد حرام»… إنما يتم في  من له ضرب من الاجتهاد…  وفيمن يكون عاميا ويقلد رجلا من الفقهاء بعينه يرى أنه يمتنع الخطأ من مثله، وأن ما قاله هو الصواب البتة، وأضمر في قلبه أن لا يترك تقليده وإن ظهر الدليل على خلافه…  وفيمن لا يجوّز أن يستفتي الحنفي مثلا فقيها شافعيا وبالعكس، ولا يجوّز أن يقتدي الحنفي بإمام شافعي مثلا، فإن هذا قد خالف إجماع القرون الأولى وناقض الصحابة والتابعين. (عقد الجيد ص 34-39 المطبوع مع ترجمته الأردية «سلك مرواريد» لمولانا محمد أحسن النانوتوي)
After these compelling and poignant words of the great Mujaddid of India, I turn to the last issue on my immediate agenda.
- ‘AMAL BI MADHHAB AKHAR vs IFTA BI MADHHAB AL-GHAYR
It was never my intention to ask a Hanafi mufti to rule upon this issue according to the Shafi‘i maddhab. Thus the angle of ifta bi-madhhab al-ghayr, whose inclusion into this case was never contemplated, remains foreign to the case and should be excluded. A fatwa had been requested of me, and I had given it. All I required was the opinion of learned Hanafi ‘ulama like yourselves as to whether it would be in order for the wife, being a Hanafi by birth, to follow the fatwa of a Shafi’i mufti.
There exists, to my mind, a marked distinction between the case of an ‘ammi acting according to an alternative madhhab, and that of a mufti of a particular madhhab pronouncing fatwa according to a different madhhab. To underline this difference I will draw your attention once again to the statement of Amir Badshah in Taysir:
بل قيل: لا يصح للعامي مذهب، لأن المذهب إنما يكون لمن له نوع نظر وبصيرة بالمذاهب، أو لمن قرأ كتابا في فروع مذهب وعرف فتاوى إمامه وأقواله، وإلا فمن يتأهل لذلك، بل قال: أنا حنفي أو شافعي لم يصر بذلك من أهل ذلك المذهب بمجرد هذا، بل لو قال: أنا فقيه أو نحوي لم يصر فقيها أو نحويا.
There are still some points upon which I would have liked to dilate, but time does not allow me. One of those would be your reference to the fact that is the case under question, the need for tahlil does not fall away according to some Shafi‘is. I think you would probably agree that the inclusion of this was really irrelevant. Another is the issue of the qada of a qadi as opposed to the fatwa of a mufti. I would also have liked to delve deeper into the distinction which Ibn al-Humam draws between actual taqlid and ta‘liq at-taqlid.
In sha Allah, another opportunity might arise for discussing these issues in future.
Was-salamu `alaykum wa rahmatullah