Talfiq within a Madhab/or Hanafi Madhab?

Discussion in 'Hanafi Fiqh' started by izz al-Din, Dec 1, 2016.

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  1. izz al-Din

    izz al-Din Well-Known Member

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    Salam e masnun


    The extract (1) allows talfiq within the the Hanafi Madhab, eg., two aqwal, Imam Abu Hanifah and Qadi Abu Yusuf, for a valid sale,
    [Does it effect bab e ridda rulings in any way?]

    whilst extract (2) (deobandi), mentions it as part of evidence of impermissibility, with in the Madhab,
    [Also, in this extract what does "..the validity of a sale with excessive duping.." mean?]

    And, extract (3) (deobandi), makes it permissible.

    Are they all correct?
    Can a learned brother, explain?

    ***

    (1)

    Religion reformers point to Ibn Nujaim’s (rahmatullâhi ta’âlâ ’aleyh) writing as an example for permission for talfîq, which says,

    “It is written in a fatwâ issued by Qâdî-Khân that if a piece of land area devoted to a waqf is sold at a ghaban fâhish price, it will be unlawful, according to Abû Yûsuf (rahmatullâhi ta’âlâ ’aleyh), because of the ghaban fâhish price. On the other hand, according to Abû Hanîfa, it is permissible for the deputy to sell it at ghaban fâhish (exorbitant) price; so the two ijtihâds are unified to make the sale sahîh.”

    However, the talfîq in this example takes place within the same one Madhhab.

    Both judgements are the results of the same Usûl. Not so is the case with the talfîq of two Madhhabs.

    Another evidence showing that Ibni Nujaym does not say that talfîq is permissible is his own statement, “A person who becomes imâm for a jamâ’at whose members are in another Madhhab (and conducts the namâz in jamâ’at) has to observe the principles of that Madhhab, too,” which exists in Bahr-ur-râiq, a commentary he prepared for the book Kanz.[1] At this point we end our translation from the final part of the book Khulâsa-t-ut-tahqîq.

    http://books.hakikatkitabevi.com/cgi-bin/cgi.exe/bksnfo31/query=arw!E2s!EE+/doc/{@7311}

    ***

    (2)

    This treatise was compiled by Shaykh Muhammad ibn ‘Abd al-‘Azim al-Makki al-Rumi al-Muri al-Hanafi (Allah – Exalted is He – have mercy on him), nicknamed Ibn Mulla Farrukh, and in it he transmitted the permissibility of talfiq from a number of Hanafi and other ‘ulama’. From them is ‘Allamah Ibn Nujaym (Allah – Exalted is He – have mercy on him) where he said in his thirty second treatise from al-Rasa’il al-Zayniyyah in the situation of selling an endowment (waqf) not in the form of substitution (istibdal)[3]: “It is possible to take the validity of substitution from the opinion of Abu Yusuf, and the validity of a sale with excessive duping from the opinion of Abu Hanifah, based on the validity of mixing (talfiq) two opinions in a ruling.” Then Ibn Nujaym (Allah – Exalted is He – have mercy on him) quoted from al-Fatawa al-Bazzaziyyah that which indicates the permissibility of talfiq and he said: “That which occurred towards the end of Tahrir by Ibn al-Humam of prohibiting talfiq, he only ascribed it to one of the later scholars, and that is not the madhhab.” (al-Rasa’il al-Zayniyyah, pp. 246-7)

    From the greatest of what Ibn al-Mulla Farrukh drew evidence from is what was narrated from Abu Yusuf (Allah – Exalted is He – have mercy on him) that he prayed Jumu‘ah with the people, and then he was informed of the presence of a rat in the well of the public bath in which he had taken a bath, and that was after the people had dispersed, so he said: “We adopt the opinion of our brothers, the people of Madinah, that water does not hold impurity when it reaches two qullahs.” This story became famous from Imam Abu Yusuf (Allah – Exalted is He – have mercy on him) and a number of the Hanafi jurists related it. It was related in al-Muhit al-Burhani transmitting from Majmu‘ al-Nawazil of Ahmad al-Kashshi (d. 550 H), as mentioned in Kashf al-Zunun. Its chain of transmission is unknown, while also the people of Madinah do not limit purity to two qullahs; rather, that is the madhhab of al-Shafi‘i (Allah – Exalted is He – have mercy on him). Even if it is established, the most that can be established from it is the permissibility of acting on the opinion of another mujtahid, and it is not necessary from it that Imam Abu Yusuf (Allah – Exalted is He – have mercy on him) mixed between two opinions, because in this story there is no mention of him opposing the madhhab of the Malikis or Shafi‘is in the ritual bath, and apparently he had observed the disagreement due to leading the Jumu‘ah. Thus, the permissibility of talfiq according to him is not established by it.

    Then our teacher (Allah – Exalted is He – have mercy on him) related from ‘Allamah Ahmad al-Tahtawi (Allah – Exalted is He – have mercy on him) that “he approved of the statement of ‘Allamah Ibn Farrukh in the matter of talfiq and deemed it good, in imitation of Mufti Abu al-Su‘ud’s (d. 982 H) preference of it also.” However, the statement of al-Tahtawi (Allah – Exalted is He – have mercy on him) in [the commentary] on al-Durr al-Mukhtar is as follows:

    Know that issuing fatwa on the opinion of Malik is the essence of taqlid, and there is no disagreement on its permissibility with the condition of no talfiq, according to what Shaykh Hasan mentioned, and he devoted a treatise to it, and that which ‘Allamah Ibn al-Munla Farrukh mentioned opposes it, since he stated explicitly the permissibility of an action with talfiq, and he expanded on that in the manner of verification, and he devoted a treatise to it also, and he attributed the opinion of the permissibility of talfiq to Ibn al-Humam in al-Tahrir, and the author of al-Bahr in one of his treatises, and that he, i.e. the author of al-Bahr, said: “Prohibiting an action with talfiq is against the madhhab,” and [he attributed this opinion ] to [authors] besides the author of al-Bahr from the scholars of Khawarizm, and he even attributed acting on talfiq to Abu Yusuf. However, the speech of ‘Allamah Nuh Afindi in his treatise related to the rulings of a latecomer [to prayer] supports what Shaykh Hasan mentioned. End
     
    Last edited: Dec 1, 2016

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