Question: Who are qualified scholars and why do I have to follow them?
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 competence in giving opinion is bsolute, 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 ofijtihad 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 under scholars who have a working familiarity with it, it is not difficult to see why.
As for those why decry “hidebound conservatism” and would open the ate 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 prmary texts, and the school’s methological 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 quaified 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 of calculus; the probability of finding them in his 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 firtly one of quality, as their positions and evidence have not been reexamined 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 mujtahids through reliable chains of transmitters…
(‘Umdat Al-Salik(Reliance of the Traveller), page 16)
b2.0 THE KORANIC EVIDENCE FOR FOLLOWING SCHOLARS
b2.1 (Muhammad Sa’id Buti:) The first aspect of it is the word of Allah the Majestic,
“Ask those who recall if you know not” (Koran 16:43)
By consensus of all scholars (ijma’ , de: b7), this verse is an imperative fo someone who does not know a ruling in Sacred Law or evidence for it to follow somene 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:
“Not all of the believers should go to fight. Of every section of them, why does not one part alone go forth, that the rest may gain knowledge of the religion to admonish their people when they return, that haply they may take warning” ( Koran 9:122).
Allah Most High prohibited the people to go out altogether in military expeditions and jihad, and ordered a segment of them to engage solely in becoming knowledgeable in the religion of Allah, so that when their brothers returned to them, they would find someone qualifid to give them legal opinion on the lawful and unlawful and to explain the rule of Allah the Glorious and Exalted (al-Lamadhhabiyya akhtar bid’a tuhaddidu al-shari’a al-islamiyya, 71)
b3.0 THE PRACTICE OF THE PROPHETIC COMPANIONS (SAHABA)
b3.1 (Muhammad nSa’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 bin Thabit, and ‘A’isha; and this was from the 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 asked about it. Al-Amidi notes in his book al-ihkam: “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 the mujtahids and would follow them in rules of Sacred Law.
“The learned among them would unhesitatingly answer their questions without alluding to mention of evidence. No one censured them for doing this; a fact that establishes scholarly consensus on the absolute permissibility of the ordinary person following one capable of ijtihad.”
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 of legal reasoning had expanded, and the Muslims of this time followed the same curse 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 the juridical opinion (ra’y) and that of hadith (n: the former in Itaq, the latter in Medina) because of the methodological factors we previously mentioned when we qoted 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 SPECIALISTS
b4.1 (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 be means of something, it will either be by examining the proof that verifies the ruling or by following a competent authority.
“The former is inadmissible because it would lead, in respect to him and all others like him, to in-depth examination of the evidences for all such instances, preoccupation with which would obviate the earning of livelihoods, disrupting trades and occupations, uining the world by neglect of tillage and offspring, and preventing anyone’s following another’s ijtihad, placing everyone under the most extreme hardship. The sole remaining alternative is to follow another, which is the means through which one must worship in such a case” (al-Lamadhhabiyya akhtar bid’a tuhaddidu al-shari’a al-Islamiyya, 73).
b5.0 THE OBLIGATORINESS OF FOLLOWING QUALIFIED SCHOLARSHIP
b5.1 (Muhammad Sa’id Buti: ) Because scholars accept the evidence from the Koran, sunna, and reason as complete and intersubstantive 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 comprehensive grasp of the evidence- they say that a formal legl 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 i obligates the scholar thoroughly 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 (ibid. , 73)
(‘Umadt Al-Salik(Reliance of the Traveller), pages 16-20 )