The Opinion of the Majority: The Layman Has No Madhab:
This is the opinion of the majority of the Malikis, Shafi’is and Hanbalis, according to Ibn Taymiyah.
It is also widely reported in Shafi’i sources, that Abu al-Fath al-Harawi - from the students of al-Shafi’i - said: “The Madhab of the generality of the followers (of al-Shafi’i), is that the layman has no Madhab. Hence, if he finds a Mujtahid, he makes Taqleed of him; and if he is unable to find one, but finds instead one who is well-acquainted with a Madhab, he makes Taqleed of him”
Al-Imam al-Nawawi says: “What is dictated by the evidence is that a person is not obliged to adhere to a Madhab; rather he should ask whoever he wishes.”
Ibn Qawan al-Shafi’i says in his al-Tahqiqat, “The truth is that it is not incumbent to adhere to a Madhab; Rather, a person should ask whoever he likes, but without seeking allowances (tatabbu’ al-rukhas).”
Mulla ‘Ali al-Qari al-Hanafi says (as reported by al-Ma’sumi): “It is not obligatory upon anyone from the Ummah to be a Hanafi, or a Maliki, or a Shafi’i, or a Hanbali; rather, it is obligatory upon everyone, if he is not a scholar, to ask someone from Ahl al-Dhikr (people of knowledge), and the four Imams are from amongst the Ahl al-Dhikr.”
Ibn al-Humam al-Hanafi says in his Tahrir (as quoted by al-Ma’sumi): “Adhering to a particular Madhab is not obligatory, according to the correct opinion, since nothing becomes obligatory, except that which Allah and His Messenger has commanded; and Allah and His Messenger did not oblige anyone to adhere to the Madhab of any particular individual from the Ummah, to make Taqleed of all that he says and to leave the sayings of everyone else. Surely, the blessed generations passed without obliging anyone to adhere to a particular Madhab.”
This is also the opinion of some of the leading Hanafi jurists of modern times, such as ‘Abdul-Fattah Abu Ghuddah - may Allah have mercy on him, (see his comments on al-Ihkam by al-Qarafi p. 231) in addition to Al-Zuhaili who says in his Usul al-Fiqh al-Islami 2/1166 that this is the correct opinion. He further adds, in the footnote of the same page, about the layman, that: “It is not correct for him to have a Madhab, even if he adheres to it.”
Ibn Muflih al-Hanbali, in al-Furu’, mentions the difference of opinion amongst the Malikis and Shafi’is, saying: “It not being obligatory is the most famous opinion”. Al-Mardawi comments: “And this is the correct opinion”.
Ibn al-Najjar al-Hanbali says: “A layman is not obliged to adhere to a Madhab…”
Ibn al-Qayyim says: “This is definitely the correct opinion, since there is nothing obligatory, except that which Allah and His Messenger made obligatory. And never did Allah or His Messenger oblige anyone to adhere to the Madhab of one of the Imams, to make Taqleed of one and leave the others.”
Ibn Taymiyah says: “If a Muslim faces an event without precedence, then he should ask the one he believes issues verdicts in accordance with Allah’s and His Messenger’s Shari’ah, irrespective of which Madhab he is from. It is not incumbent upon any Muslim to make Taqleed of a particular person amongst the scholars in everything he says” - to his words - “For one to follow someone’s Madhab due to his incapacity to find out the Shar’i ruling from other than him, then that is only permissible, and not something obligatory upon everyone if it becomes possible for one to obtain the knowledge of Shar’ through different means. In fact, everyone is obliged to fear Allah to his utmost, and seek the knowledge of what Allah and His Messenger have ordained, so that he may perform the ordered and abstain from the prohibited.”
He also says: “There are two opinions [with regards to this issue] amongst the followers of Ahmad, as well as amongst the followers of al-Shafi’i, and the majority from both groups do not oblige [adherence to one of the Madhabs]. And those who oblige it say: If one adheres to a Madhab, it is not possible for him to oppose it, so long as he is an adherent, or as long as it does not become clear to him that another Madhab is more worthy of being followed.”
He then discusses the issue of changing Madhabs and saying that if one changes his Madhab for worldly reasons, or merely seeking allowances, then that is, without doubt, condemned; it is like the companion who was known as ‘the migrant for Umm Qais’, who migrated from Makkah to Madinah to marry a woman, about which the Prophet said: “Indeed actions are based on intentions…”. As for the one who changes his Madhab due to religious reasons, or leaves an opinion in his Madhab when opinion of another Madhab appears stronger to him, then that is not only praiseworthy, but also obligatory, as no one has the right to oppose the verdict of Allah and His Messenger .
Hence, our conclusion is that, it is not obligatory on a layman to follow a Madhab, but it is still allowed for the one who finds no way but this, to obtain Allah’s ruling on an issue.
Prohibition of Devising Opinions and Following Allowances:
By ‘devising opinions’ (Talfiq), we mean the practice of selecting various opinions in a particular issue from the different Madhabs and combining them, such that the end result is considered invalid in the sight of all the Madhabs. An example of this would be for a person to wipe only a part of his head in Wudu, in accordance with the Shafi’i opinion, and then to touch a woman, while believing that does not break Wudu, following the Maliki opinion. Such Wudu, however, is invalid according to both Malikis and Shafi’is, because the Malikis believe in wiping the head in its entireity, whilst the Shafi’is believe that to touch a woman, even without desire, breaks one Wudu.
Although the majority of the latter scholars from the Malikis, Shafi’is and Hanbalis prohibit Talfiq absolutely, most of the Hanafis allow it. They argue that the phenomenon of Talfiq did not exist at the time of the Companions, as there were many occasions where a Companion would be asked about an issue yet he would not forbid the Mustafti from seeking Fatwa from other than him. Albani al-Husaini mentions many examples from the four Imams and their followers of practicing Talfiq, not to mention praying behind each other, in spite holding different opinions concerning the conditions of Wudu. In addition, many times a layman would ask numerous Muftis, without knowing the Madhabs they adhered to, about different aspect of prayer, which may often result in Talfiq, yet none considered their acts of worship to be invalid.
However, those who permit Talfiq, do not allow all of its types, and moreover, they stipulate further conditions. Therefore, the type of Talfiq they deem to be prohibited is when the end result in and of itself is Haram, such as the consumption of alcohol or fornication. An example of this is for a person to marry without a guardian, following the Hanafi opinion, and without any witnesses, following the Maliki opinion; The end result of such Talfiq is marrying a woman without guardian nor witnesses, which is essentially fornication, an act clearly forbidden by all scholars. Another type of prohibited Tafliq is that which is prohibited due to additional factors; for example to deliberately hunt out the most lenient opinions from the Madhabs, without any need or excuse. This is very brief discussion of the issue of Talfiq, and if the reader desires to know more of the issue, then the best resource would be Albani al-Husaini’s book “’Umdat al-Tahqiq Fi al-Taqlid wa al-Talfiq”.
Following allowances (Tatabbu’ al-Rukhas) is for a person to “pick and choose from every Madhab the most lenient opinion for himself”, as stated Ibn Qawan al-Shafi’i. That is, as Imam Ahmad said: “If a person were to act on the opinion of people of Kufa in [permissibility] of Wine (Nabidh), and the opinion of people of Madinah in [permissibility] of music, and the opinion of the people of Makkah in [permissibility] of temporary marriage (mut’ah), he would be considered a Fasiq”. Sulayman al-Taimi said: “If you were to take allowances of every scholar, all the evil will be gathered in you”.
The one who seeks and follows allowances is considered a Fasiq, according to the correct opinion, which has been expressed explicitly byAhmad (nass), as well as an opinion amongst Shafi’is. Ibn Taymiyah says that if it is allowed for the layman to make Taqleed of whomever he wishes, then what the statements of our [Hanbali] scholars indicate is that it is not permissible for him to seek and follow allowances in any circumstance. Al-Mardawi says that: “Ibn ‘Abdil-Bar mentioned consensus (Ijma’) on this issue, and such a person is regarded to be a Fasiq in the opinion of Ahmad - may Allah have mercy upon him - as well as others”. Although the consensus mentioned by ibn ‘Abdil-Barr is not definitely established, the prohibition of following allowances remains to be the opinion of the vast majority of the scholars. Even the minority who permit it - that is, the majority of the Hanafis - only do so in certain situations, such as a person facing extreme hardship, or a person affected with constant whispering from the devil (wiswas). This is understood from the statement of al-Zuhaili in the section on the occasions when Talfiq is prohibited: “Tatabbu’ al-Rukhas (following allowances) intentionally, that is, for one to deliberately select the most lenient opinion from every Madhab without any necessity or excuse, is forbidden, in order to prevent the means (Sadd al-Dhara’i) which would absolve one of their Shar’i responsibility.”
However, the correct opinion - and Allah knows best - is that which has been favoured by the majority of the scholars, namely, that Tatabbu’ al-Rukhas is forbidden under all circumstances; since a Muslim is obliged to follow the orders of Allah, and not merely the most lenient opinion, for that entails following desires, and not revelation.
Point of Benefit:
Those who oblige every layman to make Ijtihad and abandon Taqleed usually use statements of the four Imams that indicate absolute prohibition of Taqleed in support of their position, such as the statement of Abu Hanifah: “It is not allowed for anyone to follow our opinion if he does not know from where we obtained it”; or that of Malik: “I am only a human being, who is correct and errs. Hence, look into my opinions, and all that which corresponds to the Book and the Sunnah, follow it. And all that conflicts with the Book and the Sunnah, leave it”; or that of al-Shafi’i: “If you find in my book that which opposes the Sunnah of the Messenger of Allah then follow the Sunnah Messenger of Allah and leave what I said”; or that of Ahmad: “Do not make Taqleed of me, nor Malik, nor al-Shafi’i, nor al-Awza’i, nor al-Thawri. Rather take from where they took”.
All these statements are correct, but they were not intended for every layman, rather they were addressed to the students of these Imams, while barely any of them was a Mujtahid Mutlaq. They were, however, able to derive rulings from the sources of Islam and assess and evaluate evidences. In this regard, Sheikh Taqi al-Din Ibn Taymiyah says: “[Imam Ahmad] would order the layman to ask (yustafti) Ishaq, Abu ‘Ubaid, Abu Thawr, Abu Mus’ab, whilst he would forbid the scholars from his followers, such as Abu Dawud (the compiler of Sunan), ‘Uthman ibn Sa’id, Ibrahim al-Harbi, Abu Bakr al-Athram, Abu Zur’ah, Abu Hatim al-Sajistani, Muslim (the compiler of Sahih) and others, from making Taqleed of anyone from the scholars. He would say to them: You must refer to the sources, to the Book and the Sunnah.”
(See al-Manhaj 373-376, al-Tahqiqat 643-645, Majmu’ah 20/116, 124-126, al-Mustadrak 2/241, 258, al-Furu’ 6/492, al-Insaf 11/147, I’lam 6/203-205, Mukhtasar al-Tahrir 103, Hal al-Muslim Mulzam… 14, Rawdhat al-Talibin 11/117, Usul al-Fiqh al-Islami 2/1166)
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