Al-Qâḍi Abu Yaʽlâ cites several reports from Imam Aḥmad allowing his disciples and other people who asked him to find a concession in fatwas by other scholars, referring them at times to Abdul Wahhâb al-Warrâq , Isḥâq , or Abu Thawr , and even to locations where scholars gathered to ask any of them.¹Al-‘uddah fi uṣool al-fiqh by Abu Ya’lâ al-Farrâ’, 5/1571. Retrieved from Shamilah [computer software].

Even if we consider an opinion weak, it may sometimes be adopted to relieve some hardship, provided that it meets certain conditions, as found in Marâqi as-soʽood:

وكَوْنِهِ يُلْــجى إليهِ الضَّرَرُ إنْ كانَ لَمْ يَشْتَــدّ فِيهِ الخَوَرُ
وثَبَتَ العَــزْوُ وقَـدْ تَحَقَّقَا ضُرّاً مَن الضُّرُّ بِهِ تَعَلَّــــقَا

Finally, because the pressing need or necessity may compel people to act upon such (weak positions) if they are

[1] not too weak, and

[2] their attribution (to a mujtahid) was established, and

[3] the one under duress is certain of his/her necessity.²Nashr al-bunood ‘ala Marâqi as-So’ood by Abdullâh Ibn Ibrâheem al-‘Alawi, 2/270-271. Retrieved from Shamilah [computer software].

One may add to those two more conditions that al-Qarâfi quoted from previous Mâliki scholars:

[4] That one does not seek out concessions wherever they are.
This may be part of the condition mentioned above, which is the presence of need. Thus, one may not screen all the madhâhib of the previous scholars in order to take the easiest position among them concerning every matter. This is the position of the vast majority. A minority of scholars allowed this. They also attribute it to ‘Umar ibn ‘Abdul-‘Azeez, who said:

مَا أُحِبُّ وَإِنَّهُمْ أَئِمَّةٌ يُقْتَدَى بِهِمْ وَلَوْ أَخَذَ رَجُلٌ بِقَوْلِ أَحَدِهِمْ كَانَ فِي سَعَةٍ أَنَّ أَصْحَابَ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَمْ يَخْتَلِفُوا؛ لأَنَّهُ لَوْ كَانُوا قَوْلا وَاحِدًا كَانَ النَّاسُ فِي ضِيقٍ

“I would not like it if the Companions of the Messenger of Allah ﷺ had not differed, for if they had agreed on one opinion, people would be restricted. They (the Companions) are the leaders to be followed, and if a person were to adopt the opinion of one of them, he would not be blameworthy.”³Jâmi‘ bayân al-‘ilm wa faḍlih by Ibn ‘Abdul-Barr, 2/901. Retrieved from Shamilah [computer software].

However, the vast majority of scholars qualify that statement to mean that one may take an easier position of a qualified mujtahid if it spares him or her some hardship, but may not simply select every easy position he or she encounters.

[5] That one does not compose a position that is rejected by consensus (this applies mostly to talfeeq i.e. the patching or mixing of different positions).

Al-Qarâfi approvingly reported from az-Zanâti that the three conditions to make a transfer from one madhhab to another permissible are: a) that one does not patch the opinions of the different madhâhib in a way that produces a position which has been rejected by consensus; b) that the person engaging in this talfeeq believes in the virtue of the mujtahid being followed; and c) that they do not choose the concessions from all the madhâhib. Al-Qarâfi commented that the concessions that are not to be adopted are those that are unfounded and that may be revoked even if issued by a judge.⁴Sharḥ tanqeeḥ al-fuṣool, p. 432

Also, talfeeq that leads to the synthesis of a position rejected by all of the integrated madhâhib should only be forbidden in certain cases. If one engages in taqleed (following) of one imam in some clauses of a sale transaction and another in others, this contract should still be valid, unless the clauses are mutually exclusive or lead to inequity or deviation that is repugnant to the maqâṣid of the Shariah. This is based on the stronger position, which is that the ‘ammi (the layperson) has no madhhab.⁵See Al-baḥr al-muḥeeṭ by az-Zarkashi, 8/375, Dâr al-Kutbi, 1997. Retrieved from Shamilah [computer software]; Hâshiyat Ibn ‘Âbideen, 2nd ed., by Ibn ‘Âbideen, Beirut: Dâr al-Fikr, 1/48. An example of forbidden talfeeq is when someone marries without witnesses, citing Imam Mâlik, and without announcement, citing the majority. This marriage is a secretive relationship that is considered unlawful by all. Another example is when one applies different standards to oneself than one applies to others, such as invoking the right to preemption against one of his neighbors but refusing to honor it if another neighbor attempted to use it against him.

It should be obvious that these examples are different from the case of a layperson asking two muftis about two different matters pertaining to wudu (wuḍoo’: ablution) and getting an answer from a Shâfiʽi mufti that wiping any part of the hair is sufficient and another answer from a Ḥanafi that (a man) touching a woman without lust is not a nullifier. If he makes wudu according to the Shâfiʽi position and then touches a woman without lust, he will have not retained his wudu according to any of the four. Despite that, it seems that his wudu should still be valid.⁶See Al-fiqh al-Islâmi wa adillatuhu by Wahbah az-Zuḥayli, Damascus: Dâr al-Fikr, 1/106-107. These issues are neither interdependent nor mutually exclusive. Although the majority of scholars after the tenth century prevented this, we do not find it mentioned before the seventh century.⁷Ibid. Also, it is the consensus of the Companions that one who asked Abu Bakr and ‘Umar about one issue may ask Muʽadh , Abu Hurayrah , or others, about another issue.⁸Sharḥ tanqeeḥ al-fuṣool, p. 432. They never restricted this to issues that do not pertain to the same act of worship. Without the permission of regulated talfeeq many modern contracts would not be permissible according to any single madhhab. Much hardship would ensue and the vastness of our fiqhi legacy would lose an important feature of its malleability and resilience.

One may also add another condition here, which is that the follower of the weaker position [6] must not have certain knowledge of its faultiness. Imam ash-Shâfi‘i stated,

أجمع المسلمون على أن من استبانت له سنة رسول الله ﷺ لم يكن له أن يدعها لقول أحد من الناس

“The Muslims have unanimously agreed that whoever the Sunnah of the Messenger of Allah ﷺ becomes apparent to, it becomes impermissible for him to leave it for the statement of anyone else, regardless of who they are.”⁹I‘lâm al-muwaqqi‘een, 1/6.

While he was talking about the scholars, the same may apply to all people who are certain of the erroneousness of some position.¹⁰See At-taqreer wat taḥbeer, 3/352. Wâbisah bin Maʽbad said: I came to the Messenger of Allah ﷺ and he said, “You have come to ask about righteousness.” I replied, “Yes.” He ﷺ said,

اسْتَفْتِ قَلْبَكَ؛ الْبِرُّ مَا اطْمَأنَّتْ إِلَيْهِ النَّفْسُ وَاطْمَأنَّ إِلَيْهِ الْقَلْبُ، وَالإِثْمُ مَا حَاكَ فِي النَّفْسِ وَتَرَدَّدَ فِي الصَّدْرِ وَإِنْ أَفْتَاكَ النَّاسُ وَأَفْتَوْكَ

“Consult your heart. Righteousness is that about which the soul feels at ease and the heart feels tranquil. And ithm (sin) is that which wavers in the soul and causes uneasiness in the breast, even though people have repeatedly given you their legal opinion.”¹¹A reliable hadith reported by Imam Aḥmad and by ad-Dârimi with a good chain (sunnah.com/nawawi40/27).

وصلى الله على محمد

[This article was first published here.]

Related:

– Understanding the Statements of the Illustrious Imams: ‘When a Hadith is Sahih it is my Madhab” – MuslimMatters.org

– The Estranged Middle Way – MuslimMatters.org