The Taqleed of an expert scholar

An expert scholar although not a Mujtahid, has nonetheless developed mastery and command over Islamic sciences such as Tafseer, Hadith and Fiqh. Scholarship of this level demands the development of the capability to extract rules from the Quran and Sunnah. Shah Waliyyullah explained the term "Expert Scholar" in the following words from his "Chapter on the Expert Scholar on a school of Thought": "This scholar memorizes the works of his particular school. Prerequisites are that he should be of sound judgment and understanding; well-versed in Arabic and rhetoric; he should be aware of the different levels of preferences (in arguments) and he should understand the context of the scholars of his school of thought; he should be aware of the statements limited and restricted even though they may appear to be absolute." [100]

This person is capable of being a Mufti within a school of thought. This classification of Taqleed differs from the Taqleed of a lay person in the following: "This person is not only aware of the school of thought, but also of the reasoning behind the Fatwas of that school. As a Mufti, he is able to sift through the different opinions within his school and is qualified to issue Fatwas based on the needs of his age or to elucidate them accordingly. Hence, those issues, which are discussed in the books of the school of thought, which he adheres to, may be evaluated according lo the premises of the school. In exceptional circumstances, he may leave his Imam and follow the opinion of another Imam. The rules and conditions for this practice are explained in the principles of jurisprudence and in the books of giving Fatwas."

A situation may arise where the Expert Scholar discovers a Hadith which totally contradicts the opinion of his Imam or an argument which is stronger than that of his Imam. In such a scenario, wrote Shah Waliyyullah: "Should this scholar practice the Hadith and forsake his school? There is a difference of opinion in this issue. The author of Khazanatur Riwayaat has discussed this at length and quoted from the book entitled: "Dastoor ul Salikeen". We shall narrate his words verbatim...." [102] Shah Waliyyullah continues to quote the text. The summary is that some scholars believe that this scholar does not have the prerogative to leave the opinion of his Imam and act on the Hadith because it might be that his Imam had a perspective, which he does not.
However, the
majority of scholars believe that if this expert scholar has evaluated all arguments from all angles, then he does have the prerogative to act upon the Hadith if he meets the following requirements:

1. He is actually an expert scholar of the caliber mentioned above.

2. He has adequately established that the Hadith in question is indeed a sound Hadith. Occasionally, the Mujtahid will relinquish acting upon a certain Hadith because it was not deemed sound, if that is the case, then the non-Mujtahid does not have the prerogative to leave his school.

3. No verse of the Quran or Hadith apparently contradicts the Hadith in question.

4. The meaning of the Hadith is clear and does not carry the possibility of another interpretation. A certain Mujtahid may assume a meaning of a text, which is against its apparent meaning. If that is the case, then the non-Mujtahid may not assume otherwise, since his Imam has fixed its meaning according to his intellectual prowess which the follower does not have. Taqleed requires that a non-Mujtahid follow a Mujtahid in areas where there is several possible interpretation of a text. [103]

5. It is also necessary that the opinion of the expert scholar does not go against the consensus of the four Imams, the dangers and harms of going against the consensus of the four Imams have been outlined earlier. [104]

With these conditions fulfilled, an expert scholar may leave his Imam's opinion. The following excerpts from prominent scholars verify this.

Imam Nawawi writes: "Sheikh Abu Amr (Ibn Salaah) said that any scholar of the Shaf'iee school of thought who finds a Hadith which contradicts his school, then if he has perfected the tools of Ijtihad within himself, or if he has acquired command over the chapter of jurisprudence under discussion, or if he has acquired command over the issue under discussion he may follow that particular Hadith independently. If he has not reached perfection, or if he has not acquired command but still feels very uncomfortable in opposing the Hadith and does not find a reasonable explanation for his Imam's opinion, then again he may follow the Hadith if a Mujtahid other than Imam Shaf'iee has practiced the Hadith in question [Imam Nawawi was a Shaf'iee in Fiqh]. This [that another Mujtahid has applied the Hadith] is reason enough for him to go against his Imam. This is what Sheikh Abu Amr has said and is good and a standard." [105]

Shah Waliyyullah concurs with Nawawi: "The preferred opinion is the third which is what Ibn Salaah has said and with which Nawawi agreed and deemed correct..." [106]

There has always been a debate in the principles of jurisprudence whether Ijtihad can be partialized or not. Can a scholar who is not an absolute Mujtahid in the whole legal corpus of Islam be a Mujtahid in a particular field of Islam or in a particular issue in Islam? Some scholars reject the possibility because Ijtihad and its acumen is only developed when a scholar has reached a stage where he has prowess in the whole legal corpus of Islam and Islamic law. This is only a privilege of the absolute Mujtahid.

However, a very large group of scholars maintain that a scholar may indeed be a Mujtahid in a certain chapter or issue of Islamic law even if he has not reached the level of an absolute Mujtahid. Shaykh Tajuddin Subki and Shaykh Mahalli both hold this view: "The correct opinion is that Ijtihad can be partialized such that certain scholars develop acumen in certain chapters like inheritance for instance. This would be acquired by gathering all the proofs and arguments in that chapter themselves or by studying the school of a certain Mujtahid and then being able to analyse the positions with judicial expertise."

Shaykh Banani wrote in his commentary on Jam'ul Jawami': "Ijtihad of a school of thought can be partial. This stage may be acquired by a person who is not an absolute Mujtahid." [107]

Shaykh Abdul Aziz Bukhari wrote in the commentary of the Principles of Fakhrul Islam Bazdawi: 'In general, scholars hold that Ijtihad can be partial. It is quite possible for a scholar to become a Mujtahid in some rules and law instead of others." [108]

Imam Ghazali wrote: "I do not believe that Ijtihad cannot be partialized. It is possible for a scholar to be a Mujtahid in one area and not in others." [109]

Shaykh Taftazani wrote: "Also, you must remember that these conditions are for an absolute Mujtahid who gives Fatwas in all areas and issues, for a Mujtahid in one area and not in others, he must know everything related to his area and its rules." [110]

Maulana Amir Ali wrote a footnote to what Shaykh Taftazani said: "The statement: 'As for the Mujtahid of a certain topic..'. he should know the principles of his Imam since every extraction and extrapolation will be according to those principles. A new rule is known as Ijtihad in the rule; and a new proof for an existing narrated rule is known as extraction (Takhreej)." [111]

Shaykh ibn Hamam has also agreed that Ijtihad may be partial. He has added further that a scholar who is not an absolute Mujtahid need only follow his Imam in issues where he has not reached the level of Ijtihad himself. [112] Shaykh Zainuddin Ibn Nujaim has also quoted the exact text. [113]

However, Shaykh Ibn Amir al-Hajj has quoted Shaykh Zumulkani's decisive statement: "The Ijtihad acumen is of an indivisible nature in that a scholar must be able to extract and extrapolate rules; understand the context of text and proofs of premises and what contradicts them. His knowledge must be comprehensive in this sense and hence, this acumen is not divisible and is required even for partial Ijtihad. However, if a scholar possess comprehensive knowledge of a certain chapter or a certain issue, then he must use this acumen for that particular chapter or issue." [114]

In summary, if an expert scholar finds that his Imam's opinion in a certain issue contradicts a Hadith which has proven to be sound and conclusive, then based on the above mentioned opinions of scholars, he may leave his Imam's opinion and practice the Hadith - even though the expert scholar may not have reached the level of absolute Ijtihad himself. Maulana Rasheed Ahmed Ghanghohi, the jurist of our times - wrote: 'After due diligence, if this opinion of his Imam is against the Qur'an and Sunnah, then every believer must leave the Imam's opinion. Nobody will deny this if the case is proven. The question is, how can a lay person determine this?" [115]

The final word in this issue has been carved by Maulana Ashraf Ali Thanvi whose long quotation we will narrate here without any apprehension : "If a well-versed, intelligent and unbiased scholar finds - through his investigation - or if a lay person sincerely discovers through a God-fearing scholar that the preference in a certain issue is for the opposing judgment, then it should be observed whether the less preferred opinion has any legal leeway or outlet for implementation, there are legal grounds [under Islamic law) for the implementation of the less preferred opinion and if forsaking that less preferred opinion would lead to commotion, disunity or turmoil within the Muslim community, then that less preferred (or weaker) opinion should still be followed. The following Hadith is adequate proof for this approach: Ayesha RA said that the Prophet sallalahu alaihi wa sallam addressed her and said: "Did you know that your people - the Quraish - had reduced the foundations of the Ka'bah from the foundations laid by Ibrahim AS." Ayesha RA asked the Prophet sallalahu alaihi wa sallam: "If this is the case, then you should have the Ka'bah rebuilt according to the original foundations." The Prophet sallalahu alaihi wa sallam said: "If the Quraish had not been so new in Islam, [and so close to the days of Kufr] I would have done exactly that."

There was a fear that people would disagree about the Ka'bah being uprooted which might have resulted in consternation. Though the preferred opinion was to rebuildthe Ka'bah according to its original foundations, the Prophet sallalahu alaihi wa sallam did not sanction rebuilding the Ka'bah because the less preferred opinion of leaving the Ka'bah incomplete was also legally permissible, the less preferred opinion was given preference. If the less preferred opinion offers no legitimate leeway and instead actually leads to an illegal act or if it leads to forsaking a mandatory act - and does not have any evidence besides analogy and if the preferred opinion has a sound Hadith in its favour, then the Hadith must be practiced without any hesitation. No Taqleed would be permissible in this case.

This is because the real issue is to follow the Qur'an and Hadith and that is what is intended by practicing Taqleed (that following the Quran and Hadith is facilitated). So when following the Qur'an and Hadith does not agree with Taqleed, the former must be adopted. Sticking to Taqleed under these circumstances is what has been condemned by the Qur'an, Sunnah and scholars. If these circumstances do arise, condemning or keeping enmity against any of the scholars and Mujtahids is not permissible. This is because there is a possibility that the scholar in question did not know of this Hadith, or if he did, he found it to be weak or explained by another principal of Islamic law. The scholar and Mujtahid would be excused for this oversight. Similarly, the issue that the Hadith in question did not reach this particular scholar does not undermine his academic acumen. There are several instances where the great scholars from among the Companions did not hear of a certain Hadith until very late in their lives, but their academic acumen or expertise was never questioned or in doubt. Likewise, a person who practices Taqleed does not have the prerogative to denounce or criticize one who has not made Taqleed in an issue if the criterion of the mentioned above are fulfilled (where following the Hadith should be adopted). This kind of difference has been in vogue since the time of our predecessors.

Scholars have generally acted upon the maxim (Qawa'id) my school is assumed to be correct with the possibility of error and the other schools are assumed to be incorrect with the possibility of being correct. This dictum enables following a particular school while also accepting other schools as equally valid. However, differing in the basic theological precepts and concepts of the predecessors, or condemning the predecessors, place the perpetrator outside the Ahle Sunnah wal Jama'ah. This is because the Ahle Sunnah wal Jama'ah is the main body of the Muslim community whose opinions were believed and followed by the Companions of the Prophet sallalahu alaihi wa sallam.

This action of condemnation is totally against the actions of the Companions and therefore such a person would be outside the parameters of the Ahle Sunnah. Similarly, a person who adopts an extreme position with regards to Taqleed such that he rejects the Qur'an and Sunnah should also be avoided, in fact, one should try and avoid arguing or exchanging views with such people." [116]

The moderate prescription offered in this statement by Maulana Thanvi would save the Muslim community from many internal disputes. With the above conditions fulfilled, an expert scholar may leave the opinion of his Imam and follow a Hadith instead, but despite this very partial difference with his Imam, he would still be considered a follower (Muqallid) of his Imam. Hence, many Hanafi scholars have diverged from Imam Abu Hanifa's opinion on certain issues. For example, drinking a very small amount of intoxicating drink - from a non-wine substance - in order to gain some strength was allowed by Imam Abu Hanifa but not any other scholar. The Hanafi scholars left the opinion of their Imam and followed the opinion of the majority. Also, Imam Abu Hanifa did not allow the practice of temporary share cropping contract. Again, the Hanafi scholars did allow this practice under very strict conditions and with defined shares. These are two examples where the later scholars agreed to disagree with Imam Abu Hanifa. Otherwise, there are several examples where specific individual Hanafi scholars have diverged from the Imam's position on account of a Hadith. The issue is indeed very sensitive and to assume that the scholarly credentials which are indispensable for this kind of academic activity is achieved without great exertion, would be atrocious to say the least. Disregarding the layman, not even capable scholars have ventured out of the agreed position within the Madhab to which they adhere.

Notes:
100 'Iqdul Jeed: page 51
101 There are detailed accounts of these conditions in the book of Ibn Abi Deen like 'Uqood rasmul Mufti
102 'Iqdul Jeed.....
103 These four conditions were stipulated in Maulana Ashraf Thanfi's book: al-Iqtisad fil wal Taqleed Ijtihaad: page 34 - 36
104 This condition is found in 'Iqdul Jeed: 58
105 Al-Majmoo' the commentary of Al-Muhaddhab: vol: 1, page 105
106 'Iqdul Jeed
107 Both of the above quotation can be found in Shaykh Banani's commentary on Jam'ul Jawami' (in the footnotes): vol. 2, page 403-4, printed by Tijariyah al-Kubar of Egypt
108 Kashful Asraar by Abdul Aziz Bukhari: vol. 3 page 137
109 Al-Mustaf, by Ghazali: vol. 2, page 103
110 Al-Talweeh ma'a Al-Tawdeeh: vol. 2, page 118 (printed in Egypt)
111 Al-Tawshee ala al-Talweeh: page 604
112 Translator's note: I have left out the verbatim translation of the intricate Arabic text quoted by the author so as not to confuse the English render. The quote is from Amir Ali Shah Bukhari in his work "Tayseerul Tahreer": vol. 4. page 246 (Printed by Mustafa al-Babi)
113 Fathul Ghaffar. The commentary of Al-Manar by Ibn Nujaim: vol. 3, page 37 (Printed by Mustafa al- Babi. Egypt 1355)
114 Al-Taqreer wal Tajeer, by Ibn Amir al-Hajj; vol. 3, page 294
115 Sabeelur Rashad: by Maulana Gangohi: page 30-31 (printed by Matbou'a of Delhi 1352)
116 Al-Iqtisaad fil Taqleed wal Ijtihad, by Moulana Thanvi: page 42-45