Answered by Sidi Faraz A. Khan
Question: When can a Hanafi legitimately leave the position of Imam Abu Hanifa (Allah have mercy on him)? And how does one determine the relied-upon position of the school?
Answer: Assalamu alaikum warahmatullah,
InshaAllah you are well.
These issues are dealt with extensively by `Allama Ibn Abidin in his Sharh Rasm al-Mufti, as well as by the contemporary scholar Mufti Taqi Usmani (Allah preserve him) in his Usul al-Ifta’ (Principles of Issuing Fatwa), which is based primarily on Ibn Abidin’s Sharh Rasm al-Mufti.
In general, there are three cases in which one can leave the position of Imam Abu Hanifa (Allah have mercy on him):
(1) Strength of evidence (dalil): This is only the domain of a mujtahid within the school, that is, one who has the requisite tools to assess evidence and its strength, based on the legal foundations of the school.
It is important to note that when scholars discuss the need of ijtihad today, they are referring to ijtihad within a particular school, based on its legal principles (usul). Ijtihad is undoubtedly necessary in the modern world, so as to empower the community to deal with new situations, yet it must work within the framework of a particular school of law. As for absolute ijtihad—or legal derivation directly from the Qur’an and sunna, based on a scholar’s own personal foundational principles (usul)—it is no longer applicable or possible today.
Also, it is worth mentioning that, as stated by Mufti Taqi and others, ijtihad (within a school) is not an “all-or-none” phenomenon, but rather has levels and parts. That is to say, a scholar can be a mujtahid in some area or areas of fiqh, while not in others. And a scholar can grow in his ability to do ijtihad within the school as his knowledge deepens and becomes more vast.
(2) Pressing Need (darura)
With regards to pressing need, one tries one’s best to consult qualified scholarship. If one does not have access, one uses one’s best judgment, and then confirms with a scholar later when able to.
As the Majalla states, “Situations of pressing need make the impermissible permissible,” yet “only to the extent that the pressing need is lifted.” [Articles 21, 22]
(3) Customary Practice (`urf)
The change of legal rulings based on time and place is definitely the domain of qualified scholarship alone. It cannot be determined by any scholar, but rather as explained by Ibn Abidin, a scholar who has “sound judgment and understanding, as well as knowledge of legal principles of the Sacred Law, to the extent that he can distinguish between customary practice upon which a ruling can be based, and that upon which a ruling cannot be based…at the very least he must have knowledge of legal rulings along with their conditions and stipulations that are often not explicitly mentioned since it is assumed the jurist will know them. Likewise, he must have knowledge of the custom of his time and the states of his people, having graduated with that [knowledge and understanding] at the hands of a qualified teacher.” [Sharh Rasm al-Mufti]
It is important to remember that when dealing with issues changing due to time and place, the discussion applies only to issues that are not established by explicit texts of the Qur’an and hadith. For example, the issue of hijab is based on explicit texts of the Qur’an and hadith, and hence is not subject to change by customary practice.
The Relied-Upon Position of the School
While in general the default of any issue is that Imam Abu Hanifa’s opinion is the relied-upon opinion, that is not always the case, since for many issues another opinion was given precedence based on the above factors.
Because of that, later scholars of the school—termed ahl al-tarjih, or those capable of deeming certain opinions as stronger than others—selected different opinions as being “relied-upon” or “most appropriate for fatwa.”
As Mufti Taqi states in his presentation of the principles of giving fatwa delineated by Ibn Abidin, “The fourth principle is that if there are two or more opinions or narrations [within the school] regarding any particular issue, it is mandatory to follow what the scholars of tarjih deem strongest…regardless of whether it is the opinion of the Imam [Abu Hanifa] or one of his students. That which the scholars of tarjih deem strongest takes precedence over all other opinions, since despite their extreme godfearingness and adherence to the school, they only deemed that opinion as strongest due to factors that were clear for them, such as the pressing need of people, change in time and custom, etc.”
And as Mufti Taqi clarifies in the ninth principle of giving fatwa, “If no opinion is deemed stronger by the scholars of tarjih, then it is mandatory to follow the zahir al-riwaya (i.e., the famous, mass-transmitted narrations that relate the opinions of Abu Hanifa and his two main students).” [Usul al-Ifta’]
In essence, this highlights that in such a case [when there is no tarjih found], the scholar returns to the default ruling, i.e., the opinion of Imam Abu Hanifa.
How to Find the Relied-Upon Position
For this, one has to refer to the reliable books of the school. In the Hanafi school, this would include Imam Sarakhsi’s Mabsut, Imam Kasani’s Bada`i al-Sana`i, Imam Zayla`i’s Tabyin al-Haqa’iq, Imam Marghinani’s Hidaya along with its commentaries, especially the Inaya of Imam Babarti and Fath al-Qadir of Imam Kamal ibn Humam.
Allama Ibn Abidin did a phenomenal job of going through the key works of the school and deciphering the relied-upon position [for most legal issues] in his renowned Hashiya, Radd al-Muhtar. He relies heavily on the above books, as well as the main primary texts (mutun) of the school, including Mukhtasar Quduri, Kanz al-Daqa’iq, the Mukhtar, the Wiqaya, and Multaqa ‘l-Abhur.
The Fatawa Hindiyya is also indispensable.
Then there are also key books for specialized areas, such as:
-For worship: Imam Shurunbulali’s Nur al-Idah and commentaries, Imam Tahtawi’s Hashiya on Maraqi ‘l-Falah, and the Hadiyya ‘l-Ala’iyya.
-For commercial transactions: the Majalla and its commentaries, particularly those by Imams Ali Haydar and Attasi.
-For personal law: Allama Qadri Basha’s Ahkam Shar’iyya fi Ahwal Shakhsiyya, along with Imam Abyani’s commentary.
-For the lawful and prohibited (halal/haram): Imam Nahlawi’s Durar Mubaha fil Hadhr wal-Ibaha.
With respect to modern fatawa, one follows the qualified scholarship of his time and place, as their verdicts are based on the criteria explained above. This knowledge is not taken [only] from the ink of books but rather [primarily] from the hearts of humans.
May Allah give us tawfiq and baraka to learn His religion, for His sake alone. Amin.
Faraz A. Khan
Checked & Approved by Faraz Rabbani