By Aaron Spevack
Source: Al-Nābulsī, Khulāṣah al-Taḥqīq fī Bayān Ḥukm al-Taqlīd wa al-Talfīq: Chapter 6: Regarding the elucidation of the ruling on talfīq.
Nābulsī begins his chapter with the division of people into mujtahids and non- mujtahids. Mujtahids are further divided into absolute (unrestricted) and restricted mujtahids. An absolute mujtahid can not follow the opinion of another when he is qualified to do his own ijtihād. A restricted mujtahid must follow the methodology of the absolute mujtahid but not the actual derived rulings or results of the absolute mujtahid’s ijtihād.[1]
As compared to Suyūṭī’s (d. 911/1505) classification of mujtahids, Nābulsī’s is more restrictive of the companions of the founders of the schools (such as Abū Yūsuf of the Ḥanafī school) who Suyūṭī would consider an absolute yet affiliated mujtahid, meaning he chooses to follow Abū Ḥanifā’s method while being capable of creating his own method if so desired.[2]
In any case, Nābulsī says that the non-mujtahid must follow the opinions and methods of mujtahids. The question of talfīq is therefore not an issue for mujtahids (whether absolute or restricted) as they are not in the business of following rulings of another (just methodologies in the case of the restricted mujtahid.)
The non-mujtahids – in particular the general masses who are not capable of issuing fatwas nor knowledgeable of the proofs associated with the varying rulings – are permitted to follow different madhhabs in each different action, meaning that they could follow the Ḥanafī school in their daily prayers, the Shāfi’ī school in their fasting, the Mālikī school in zakāt, and the Ḥanbalī school on the hajj. In addition to acts of worship (‘ibādah) they are equally free in matters of transactions and other dealings (mu’āmalāt). As long as they are following one specific school and observing all of the conditions that the school in question has stipulated for a given action, then it is valid to follow that opinion of another school even if the opinion is deemed to be weaker than the opinion in their own school. Nābulsī, however, mentions that it is better to only follow opinions one believes stronger, to remove oneself from the scholarly disagreement (al-khurūj min al-khilāf) over this side issue (i.e. whether it is a requirement to believe the opinion of one is following to be the stronger opinion).
However, if they draw from different madhhabs within a single action, then it would render the action invalid if it produces a fifth school (i.e. a new opinion that would not be affirmed by any mufti in the four schools). Here is the problem of talfīq or mixing and matching between schools in a single action (as opposed to following different schools in separate actions). In this matter, he claims there is consensus (ijmā’) that such an action would be deemed invalid.
The claim that such an action would be deemed invalid by consensus is worthy of further consideration, as the issue of talfīq is one that is likely to be a later development, after the time of the founders of the madhhabs and their immediate students. If this proves true, then Nābulsī’s is an appeal to consensus (ijmā‘) of later jurists, after the time of the Ṣaḥāba or early scholars of Medina in Mālik’s time. Here I am referring to the fact there are there is no consensus on what constitutes a consensus (ironically), some considering only the consensus of the Ṣaḥāba, or the early scholars of Medina (in the Mālikī school) to constitute a binding consensus.
Returning to talfīq, one of Nābulsī’s main aims seems to be to show that talfīq should not be entered into the category of taqlīd (following the opinion of a qualified scholar without knowing the proofs), the former being impermissible and the latter being mandatory for all but the mujtahid. In other words, one who does talfīq is not a muqallid, but rather a mulā’ib bi al-dīn (one who plays with religion). If a person does an act of worship or enacts transaction by piecing together opinions unique to each different school then he has left the four schools and created a fifth school in a sense. His worship or transaction is not valid and he is deemed to be one who plays with the religion while not acting by any madhhab of the mujtahids because if every muftī from the four schools were asked, none would permit that this worship or transaction is valid.
So when one says “the general masses don’t have a madhhab“, Nābulsī argues, it means they don’t have a specific and singular maddhab because their “maddhab is that of the muftī” (i.e. whatever the muftī told about that specific issue, and the muftī could be from any of the four schools in some places, like Cairo from the time of Saladin onwards).
Nābulsī gives many examples of impermissible talfīq-based actions by quoting from various high-ranking scholars who were against talfiq, Taftazānī, Ibn al-Humām, al-Rāfi’ī, and others.
Among the examples he cites is the example of ablutions before prayer (wuḍūʾ) wherein a person performs ablution:
* from two qullatayn[3] in which an impurity has fallen – even if the taste, smell, or color hasn’t changed;
* without the intention for ablution;
* does not do it in the prescribed order (face, arms, head, feet);
* without rubbing the water nor doing so continuously (i.e. without pause); and
* without pronouncing the name of Allāh.
A Ḥanafī judge would not recognize the ablution due to water being judged impure by the presence of the impurity having fallen in it.
A Shāfi’ī judge would not recognize the ablution due to the lack of intention for purification and for not following the prescribed order (tartīb).
A Mālikī judge would not recognize the ablution because the water was not rubbed on the limbs and it was not done continuously without pause.
A Ḥanbalī judge would not recognize the ablution because it was not preceded by the basmalah (mentioning the name of Allāh).
Therefore this ablution would be considered invalid by consensus (ijmā’), without disagreement says Nābulsī.
All of the examples he cites – from Taftazānī, Ibn al-Humām, Rāfi’ī – a who’s who of great scholars of the classical pre-mordern era – give examples that pertain only to individuals and do not have impact beyond the individuals performing the action, unlike Bajūrī’s example of the “talfīq of the lowlifes” which looks to social harm (mafsadah) caused by talfīq or Islamic finance which looks to social benefit (maslaha) that is created by talfīq.
By citing a number of scholars in his critique of a particular defense of talfīq (presumably mentioned more explicitly in previous chapters that I have not yet studied), Nābulsī exposes some important subtleties and differences of opinion that are often lost in contemporary discussions of ijtihād, taqlīd, and talfīq. On the one hand, he opens the doors for non-mujtahids to move between madhhabs with each action in their lives, rejecting the opinion of al-Nawawī and others who disallowed this except in times of need (dururah). Such an approach narrows the definitional boundaries of certain movements and thinkers labeled “modernist” and those labeled “traditionalist” in contemporary times by putting a broader approach to following dispensations (rukhṣas, i.e. opinions outside of one’s school) under the umbrella of the pre-modern legal (and Sūfī[4]) tradition. On the other hand, he closes the door to many of the transactions that are produced in the field of Islamic finance specifically through recourse to talfīq.
Notes:
[1] Nābulsī’s categorization of mujtahids:
- Mujtahids
- Absolute (no taqlīd in method or ruling)
- Restricted (no taqlīd in ruling, but necessarily in method)
- Non-mujtahids (taqlīd in following rulings of mujtahids)
[2] See Aaron Spevack, “Al-Suyūṭī, the Intolerant Ecumenist: Law and Theology in Ta ʾyīd al-ḥaqīqa al-ʿaliyya wa-tashyīd al-ṭarīqah al-Shādhiliyya,” in Al-Suyūṭī, a Polymath of the Mamlūk Period, ed. Antonella Ghersetti (Brill, 2016).
[3] Two large jugs, according some calculations, amounting to 216 liters.
[4] Nābulsī being a Naqshbandī Sūfī.