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BOOK B: THE VALIDITY OF FOLLOWING QUALIFIED SCHOLARSHIP
Table of Contents:
b1.0 INTRODUCTIONb1.1 (Muhammad sa'id Buti:) What is the proof that it is legally valid and even obligatory to accept the authority of qualified scholarship (taq lid) when one is not capable of issuing expert legal opinion (ijtihad) on matters of Sacred Law? There are several aspects to it (n: discussed in the sections that follow) (al-Lammadhhabiyya akhtar bid a tuhaddidu al-sharia al-Islamiyya (y33), 70). b1.2 (n:) For the key term qualified to issue expert legal opinion (Ar. mujtahid. this ability being ijtihad) please turn to book o and read o22.1(d) the qualifications of an Islamic judge (qadi). The difference between the qualifications for the Imam of a school and those for a judge or a mufti is that the former's comptence in giving opinion is absolute ,extending to all subject matters in the Sacred Law, while the competence of the judge or mufti is limited respectively to judging court cases or to applying his Imam's ijtihad to particular questions. No age of history is totally lacking people who are competent in ijtihad on particular questions which are new, and this is an important aspect of Sacred Law to provide solutions to new ethical problems by means of sound Islamic legal methodology in applying the Koranic and hadith primary texts. But while in this specific sense the door of ijtihad is not and cannot be closed, Islamic scholarship has not accepted anyone's claims to absolute ijtihad since Imams Abu Hanifa Malik, Shafi'i, and Ahmad. If one studies the intellectual legacy of these men underscholars who have a working familiarity with it, it is not difficult to see why. As for those who decry "hidebound conservatism" and would open the gate of ijtihad for themselves while lacking or possibly not even knowing the necessary qualifications, if such people have not studied the rulings of a particular school and the relation between these rulings, the Koranic and hadith primary texts, and the school's methodological principles, they do not know how ijtihad works from an observer's standpoint,let alone how to employ it. To ask them for example which of two equally authenticated primary texts that conflict on a legal question should be given precedence, and why, is like asking an aspiring drafting student for the particulars of designing a suspension bridge. Answers may be forthcoming, but they will not be the same as those one could get from a qualified contractor. To urge that a mujtahid is not divinely protected from error (ma'sum) is as of little relevance to his work as the fact that a major physicist is not divinely protected from simple errors in calculus; the probability of finding them in his published work is virtually negligible. Regarding other, long-dead schools, such as the Zahiriyya, the difference between their work and that of the four living schools is firstly one of quality, as their positions and evidence have not been re-examined and upgraded by succeeding generations of first-rank scholars like those of the four schools (dis:w12), and secondly the lack of verification of the actual positions of their Mujitahid's through reliable chains of transmitters, as described below at b7.6.
b2.0 THE KORANIC EVIDENCE FOR FOLLOWING SCHOLARSb2.1 (Muhammad Sa'id Buti;) The first aspect of it is the word of Allah the Majestic.
By consensus of all scholars (ijma.def:b7), this verse is an imperative for someone who does not know a ruling in Sacred Law or the evidence for it to follow someone who does. Virtually all scholars of fundamentals of Islamic law have made this verse their principle evidence that it is obligatory for the ordinary person to follow the scholar who is a mujtahid. b2.2 Similar to the above verse in being evidence for this is the word of Allah Most High:
Allah Most High prohibited the people to go out altogether in military expeditions and jihad and ordered a segment of them to engagse solely in becoming knowledgeable in the religion of Allah, so that when their brothers returned to them, they would find someone qualified to give them legal opinion on the lawful and unlawful and to explain the rule of Allah the Glorious and Exalted (al-Lammadhhabiyya akhtar bid a tuhaddidu al-sharia al-Islamiyya (y33), 71).
b3.0 THE PRACTICE OF THE PROPHETIC COMPANIONS (SAHABA)b3.1 (Muhammad Sa'id Buti:) A second aspect is the consensus of scholars that the Companions of the Prophet (Ar. Sahaba, anyone who personally met the Prophet (Allah bless him and give him peace) and died while believing in Islam) were at various levels of knowledge in religion; not all of them were capable of giving formal legal opinion (fatwa), as Ibn Khaldun has noted, nor was the religion taken from all of them. b3.2 Rather, there were those of them capable of legal opinion and ijtihad and these were a small minority in relation to the rest, and there were those of them who sought legal opinion and followed others therein, and these were the vast majority of them. (n: Suyuti, in Tadrib al-rawi, quotes Ibn Hazm's report that most of the Companions legal opinions came from only seven of them:'Umar, Ali, Ibn Mas'ud, Ibn Umar Ibn Abbas, Zayd ibn Thabit, and Aisha; and this was from thousands of the Companions (Tadrib al-rawi fi sharh Taqrib al- Nawawi(y109),2,219).) b3.3 Nor did the individual Companion giving a legal opinion necessarily mention the evidence for it to the person who had asked about it, Al-Amidi notes in his book al-lhkam: "As for scholarly consensus [ijma dis: b7.2] it is that ordinary people in the times of the Companions and those who immediately followed them, before there were dissenters, used to seek the opinion of mujtahids and would follow them in rules of Sacred Law.
b3.4 The Prophet (Allah bless him and give him peace) used to dispatch the most knowledgeable of the Companions to places whose inhabitants knew nothing more of Islam than its five pillars. The latter would follow the person sent to them in everything he gave his judgment upon and had them do, of works, acts of worship, dealing with one another, and all matters of the lawful and unlawful. Sometimes such a person would come across a question on which he could find no evidence in the Koran or sunna, and he would use his own personal legal reasoning and furnish them an answer in light of it, and they would follow him therein. b3.5 As for the era of those who came after them (Ar. tabi'in, those who had personally learned from one or more of the Companions but not the Prophet himself (Allah bless him and give him peace)), the scope f legal reasoning had expanded, and the Muslims of this time followed the same course as had the Companions of the Prophet (Allah bless him and give him peace), except that the legal efforts were represented by the two main schools of thought, that of juridical opinion (ra'y) and that of hadith (n: the former in iraq, the latter in Medina) because of the methodological factors we previously mentioned when we quoted Ibn Khaldun.. There were sometimes discussions and sharp disputes between leading representatives of the two schools, but the ordinary people and learners not at the main figures' level of understanding were unconcerned with this disagreement, and followed whomever they wanted or whomever was near to them without anyone censuring them for this (al-Lamadhhabiyya akhtar bid'a tuhaddidu al-shari'a al- Islamiyya (y33), 71-73).
b4.0 THE RATIONAL EVIDENCE FOR FOLLOWING SPECIALISTSb4.1 (Muhammad Sa'id Buti:) A third aspect is the obvious rational evidence, which we express in the words of Sheikh `Abdullah Diraz, who says: "The logical proof is that, assuming that a person does not have the qualifications for ijtihad, when an instance of a particular religious ruling arises, he will either not worship by any means at all, which all concur is impermissible, or, if he worships by means of something, it will either be by examining the proof that verifies the ruling or by following a competent authority.
b5.0 THE OBLIGATORINESS OF FOLLOWING QUALIFIED SCHOLARSHIPb5.1 (Muhammad sa'id Buti:) Because scholars accept the evidence from Koran, sunna, and reason as complete and intersubstantiative that the ordinary person or learned one not at the level of textual deduction and ijtihad is not entitled but to follow a qualified mujtahid who has a comprehensive grasp of the evidence -they say that a formal legal opinion (fatwa) from a mujtahid is in relation to the ordinary person just as a proof from the Koran and sunna is in relation to the Mujtahid for the Koran just as it obligates the scholar throughly versed in it to hold to its evidences and proofs, also obligates (n: in the verse quoted above at b2.1) the uninformed person to adhere to the formal legal opinion of the scholar and his ijtihad (al-Lamadhhabiyya akhtar bid'a tuhaddidu al-shari'a al- Islamiyya (y33),73).
b6.0 WHY QUALIFIED SCHOLARS DIFFER ON LEGAL QUESTIONSb6.1 (Salih Mu'adhdhin:) Muslims of the Sunna and Community are in agreement that we have arrived at all the rulings of Sacred Law through evidence that is either of unquestionably established transmission (qat'i al-wurud) or probabilistically established transmission (zanni al-wurud). The suras of the Koran, all of its verses, and those hadiths which have reached us by so many channels of transmission that belief in them is obligatory (mutawatir,def:o22.1(d(II)))are all of unquestionably established transmission, since they have reached us by numerous means, by generation from generation, whole groups, from whole groups such that it is impossible that the various channels could all have conspired to fabricate them. As for the evidentiary character of these texts, regardless whether they are of unquestionably or probabilistically established transmission, they are of two types. The first type, unquestionable as evidence (qat'i al-dalala), is a plain text that does not admit of more than one meaning, which no mind can interpret beyond its one meaning, which no mind can interpret beyond its one meaning, and which there is no possibility to construe in terms of other than its apparent sense. This type includes Koranic verses that deal with fundamental tenets of faith in the oneness of Allah, the prayer, zakat, and fasting; in none of which is there any room for disagreement, nor have any differences concerning them been heard of or reported from the Imams of Sacred Law. Everything in this category is termed unquestionable as evidence. The second type, probabilistic as evidence (zanni al-dalala), is a text that can bear more than one meaning, whether because it contains a word that can lexically have two different meanings, or because it was made by way of figure of speech or metaphor, or because it can be interpreted in other than its apparent sense in the context without this contradicting what was intended by the Wise Lawgiver. It is here that we find scope for scholarly difference of opinion to a greater or lesser extent depending on the number of meanings a text can imply, how much interpretation it will bear, and so forth. All of the derivative rulings of Sacred Law are of this type, probabilistic as evidence, so we naturlly find differences among Islamic legal scholars as to their interpretation, each scholar interpreting them according to his comprehension and the broadness of his horizons, while not giving the text a reading it does not imply, and then corroborating his interpretation with evidence acceptable to scholars. Scholarly differences are thus something natural, even logically necessary, as a result of the factors we have just described. Allah Mighty and Majestic has willed that most texts of the Sacred Law be probabilistic as evidence because of a wisdom He demands, namely, to give people more choice and leave room for minds to use ijtihad in understanding His word and that of His messenger (Allah bless him and give him peace). b6.2 We conclude this short summary with an example to clarify what we have said. Consider the word of Allah.
as opposed to His saying, in the same sura,
Allah's saying "three" in the former and "four" in the latter are texts that are decisive as evidence, in that neither admits of more than one interpretation, namely, the well-known numbers. But in contrast with this, when Allah says "periods" (Ar.quru') in the first, and "months"(ashhur) in the second, we find that the former word can have more than one sense in its Arabic lexical root meaning, while months cannot, the latter being decisive in meaning and incapable of bearing another interpretation. Concerning this question, Imam Qurtubi says in his Koranic exegesis: "Scholars differ about the word periods. Those of kufa hold that it means menstrual periods, and this is the position of 'Umar, 'Ali, and Ibn Mas'ud. But those of the Hijaz hold it means the intervals of purity between menstrual periods, and this is the view of `A' isha, Ibn `Umar, and Shafi'i." Considering this, is it not natural that there should be various opinions about understanding the verse "three periods" but only one about understanding Allah's saying "four months"? If Allah had wanted all opinions to coincide on this question. He might have said for example, "three menstrual periods" (hiyad) or "three intervals of purity between menstrual periods" (athar), just as He said "four months." And all the texts of Sacred Law that can bear more than one meaning are comparable to this example ('Umdat al- salik (y90). 11-13).
b7.0 SCHOLARLY CONSENSUS (IJMA')b7.1 ('Abdal-Wahhab Khallaf:) Scholarly consensus (ijma') is the agreement of all the mujtahids (def:o22.1(d)) of the Muslims existing at one particular period after the Prophet's death (Allah bless him and give him peace) about a particular ruling regarding a matter or event. It may be gathered from this that the integral elements of scholarly consensus are four, without which it is invalid:
b7.2 When the four necessary integrals of consensus exist, the ruling agreed upon is an authoritative part of Sacred Law that is obligatory to obey and not lawful to disobey. Nor can mujtahids of a succeeding era make the thing an object of new ijtihadm because the ruling on it, verified by scholarly consensus, is an absolute legal ruling which does not admit of being contravened or annulled. b7.3 The proof of the legal authority of scholarly consensus is that just as Allah Most Glorious has ordered the believers, in the Koran, to obey Him and His Messenger, so too He has ordered them to obey those of authority (ulu al-amr) among them, saying,
such that when those of authority in legal expertise, the mujitahids, agree upon a ruling, it is obligatory in the very words of the Koran to follow them and carry out their judgement. And Allah threatens those who oppose the Messenger and follow other than the believers' way, saying,
b7.4 A second evidentiary aspect is that a ruling agreed upon by all the mujtahids in the Islamic Community (Umma) is in fact the ruling of the Community, represented by its mujtahids, and there are many hadiths that have come from the Prophet (Allah bless him and give him peace), as well as quotes from the Companions, which indicate that the Community is divinely protected from error, including his saying (Allah bless him and give him peace):
b7.5 (n: Another hadith that scholars quote in connection with the validity of scholarly consensus is the following, given with its commentary.) The Prophet (Allah bless him and give him peace) said,
Allah's hand is over the group (al-`Azizi:) Munawi says, "Meaning His protection and preservation of them, signifying that the collectivity of the people of Islam are in Allah's fold, so be also in Allah's shelter, in the midst of them, and do not separate yourselves from them. "The rest of the hadith, accordng to the one who first recorded it (n: Tirmidhi), is, and whoever dissents from them departs to hell. Meaning that whoever diverges from the overwhelming majority concerning what is lawful or unlawful and on which the Community does not differ has slipped off the path of guidance and this will lead him to hell (al-Siraj al-munir sharh al-Jami' al-saghir (y18), 3.449). b7.6 (n: In addition to its general interest as a formal legal opinion, the following serves in the present context to clarify why other than the four Sunni schools of jurisprudence do not necessarily play a role in scholarly consensus.) (`Abd al-Rahman Ba'alawi:) Ibn Salah reports that there is scholarly consensus on its being unlawful to follow rulings from schools other than those of the four Imams, meaning in one's personal works, let alone give court verdicts or formal legal opinions to people from the, because of the untrustworthiness of the ascription of such rulings to the scholars who reportedly gave them, there being no channels of transmission which obviate the possibility of textual corruption and spurious substitutions. The Zaydis, for example, who trace themselves to Zayd ibn 'Ali Husayn (n: son of 'Ali and Fatima), the beatitude of Allah be upon them, despite the fact that Zayd was one of Imams of the religion and a renowned figure well qualified to give guidance to those seeking it, his followers identify him with extreme permissiveness on many questions, ascriptions based on failure to check as to what his positions actually were (n: by naming the intermediate transmitters and establishing their reliability). It is quite otherwise with the four schools, whose Imams (Allah reward them) have spent themselves in checking the positions of their schools, explaining what could be rigorously authenticated as the position of the person it was attributed to, and what could not be. Their scholars have thus achieved safety from textual corruption and have been able to discern the genuine from the poorly authenticated (Bughya al- mustarshidin fi talkhis fatawa ba'd al-a'imma min al-muta'akhkhirin (y19),8).
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