Subsidiary Divisions of ‘Fiqh’ by Shaykh Wasiullah Abbas
This section is based upon the understanding that ‘Fiqh ul Akbar’ (The Greater Fiqh)-creed-is only taken from that which is established from Allah and His Messenger , since it does not accept ‘Ijtihad’ nor ‘Qiyas’. As for ‘fiqh’ of the rulings, legislations and subsidiary issues of ‘fiqh’ then this type of ‘fiqh’ accepts ‘Ijtihad’ and ‘Qiyas’. So upon this we say: The subsidiary ‘fiqh’ is restricted and limited to the proofs and evidences contained in the Quran and the Sunnah, they are the two fundamental sources.
Proceeding them (Quran and the Sunnah) is what has been unanimously agreed upon based upon the Quran and Sunnah collectively or individually. Subsequently following the Quran and Sunnah is ‘qiyas’ based upon them both or individually.
With this in mind we now divide this type of ‘fiqh’ into different divisions:
1) First division: The division in which there exists a clear-cut, decisive text from the authentic Quran or Sunnah. In this division of ‘fiqh’ there is no place nor right for anyone’s ‘ijtihaad’, ‘madth’hab’, or personal statement solely because of the obligation upon all people to follow this type of ‘fiqh’. If someone exerts himself using his ‘ijtihaad’ and gives a religious verdict while not knowing or recalling the text, then remembers the text or becomes it apparent to him, it is obligatory upon him to leave off the opposing verdict which he gave and he must follow the authentic text. As Allah says: “It is not for a male or female believer when Allah and His Messenger have decreed a matter that they should have any option in their decision…” (al Ahzab 33:36)
2) Second division: This division is that in which there exists no specific text regarding the particular issue, or there exists an authentic text from the Quran and Sunnah however it is not recalled and one scholar doesn’t know it with the exclusion of other scholars. In this type of ‘fiqh’ it is permissible to use ‘ijtihaad’. It may also be obligatory upon the scholar who gives numerous verdicts using ‘qiyas’. If he gives a religious verdict and afterwards the text becomes apparent to him, then it is obligatory upon him to return back to the text; this goes for the one giving the verdict as well as the one seeking the verdict.
3) Third division: The division in which there exists a text however its purport and meaning is undefined regarding a specific ruling and there is possibility and potential for more than one meaning. In this division it is also permissible and/or obligatory to use ‘ijtihaad’ in regards to specifying and determining the particular meaning or directing and/or correcting the various and different meanings, so the issue becomes one of many meanings and significances.
4) Fourth division: The division in which there exists texts that are apparently contradictory and seem to be in opposition to each other. In this division it is also permissible and/or obligatory to use ‘ijtihaad’ to combine and reconcile between the texts if possible, and/or searching for and discovering the abrogation of one of them, and/or giving preference to one of the texts, or finally refraining from making a decision or ruling on either texts.
5) Fifth division: The division in which there exists a text from the Prophet Muhammad however it is not established from him, or the chain of narration is inauthentic. In this division the ‘mufti’ could make a statement in agreement with a weak hadeeth according to what has been mentioned by some of the scholars, or he can use ‘ijtihaad’, but he must indicate that the hadeeth is weak and clarify its weakness if he chooses to act upon it.
The meaning of ‘al ijtihaad’ is: The action which the scholar or jurist engages in by exerting all of his (intellectual, physical) efforts and doing everything in his ability to gain knowledge of a religious ruling which contains no text, by the way of deductive and inferential reasoning.
The scholar and jurist should look and consider the conditions of ‘ijtihaad’ which are agreed upon and the conditions which the scholars have differences of opinions about in the books of ‘Usool Fiqh’ (Principles of Fiqh). Indeed the scholars have differed concerning many of the conditions of ‘ijtihaad’.
The righteous predecessors and those who proceeded them tread upon this methodology in the subsidiary ‘fiqh’ issues.
Ibn Taymiyyah said: ‘Some of the scholars of ‘fiqh’ from the Hanafee ‘madth’hab’ came to me and said: ‘I need your consultation in an issue’. I replied to him: ‘What is it?’, He said: ‘I want to leave and change my ‘madth’hab’, so I said to him: Why? He replied: ‘I have come to find that many authentic narrations oppose my ‘madth’hab’, so I consulted some of the scholars of the ‘Shafi’ee’ ‘madth’hab’ and they said to me: ‘if you leave off your ‘madth’hab’ then this will not affect the ‘madth’hab because the ‘madth’hab’ will remain and has been established, and your leaving it or returning back to it is of no benefit. Then some of the Sufi scholars advised me to manifest my extreme need of Allah and earnestly humble myself to Him by supplicating to Him and asking Him to grant me guidance to what He loves and is pleased with. So what do you advise me with?
I replied to him: ‘Make your ‘madthaa’hib’ three divisions: A division in which the truth is clearly apparent and coincides with what is in the Quran and Sunnah, make your ruling with this while being complacent and having an open heart.
A division ‘marjooh’ which contains weaker or less preponderant evidence, that in which the opposing party possesses the stronger proofs and evidences. Do not give religious verdicts with this type of evidence, nor make judgments with it, and stay away from it.
A division which contains the affairs of ‘ijtihaad’ consisting of proofs and evidences that are inseparable, if you would like to give a religious verdict with it than do so, and if you would like you can abandon it.’ Then the man responded: ‘May Allah reward you with good’
It is obligatory upon the one giving religious verdicts to observe, study and consider the situations in which ‘ijtihaad’ was used amongst the scholars of ‘fiqh’, and then give his religious verdict with that which is the closest to the evidences in the Quran and Sunnah, and that which is easiest for the Muslims.
These are the fundamentals and foundations upon which the ‘fiqh’ of the companions and their religious verdicts were based upon. As we previously mentioned some evidences which proved that in the instances or issues in which they differed, they would return and refer back to the texts, or ask each other about the texts if they didn’t know them or recall them, or they would consul teach other as to what view is the closest to the truth. Abdur Razzaq narrated with an authentic chain of narration: On the authority of Alqamah who said: someone came to Abdullah ibn Mas’ud and asked him about a man who got married and didn’t give the woman her dowry, and he didn’t touch or have sexual relations with her until he died, so they designated for her a dowry. Then Abdullah ibn Mas’ud said: ‘Verily I speak about this issue based upon my personal opinion, if it so happens to be correct than it is from Allah, and if it is incorrect than it is from me. I view that in regards to this issue that the woman should be given a dowry similar to the dowry given to her female relatives or those women close to her, not less than nor in excess to what she deserves, and she must observe the prescribed waiting period of the women whose husband has died, and she also inherits from him’. So then Ma’qal ibn Sinaan al Ashja’ee stood up and said: ‘Verily I bear witness that you have indeed judged in accordance with the judgment of the Messenger of Allah regarding the affair of Bir’wah’ bint Washiq, the woman from the tribe of ‘Ru’aas from Aamir ibn Ru’aas ibn Sa’sa’at. Sufyaan ath-Thawree also holds this view.
It is not permissible for anyone to give religious verdicts while being ignorant of the Quran and Sunnah. The scholar is considered to be the one who inherits knowledge from the Messenger just as the Prophet Muhammad would not speak except with divine revelation, similarly it is not permissible for the inheritor of the Prophet to speak with anything except divine revelation. Thisis what the Prophet left behind for us-in the form of the Quran and Sunnah, or consensus of the companions or ‘qiyas’ based upon the Quran and Sunnah.
Whoever gives religious verdicts without knowledge has indeed committed a great sin. Ad Daramee narrated with a good chain of narration on the authority of Abu Hurairah who said: ‘The Prophet Muhammad said: “Whoever is given a religious verdict without proof, for verily the sin is upon the one who has given it.”
Also ad Daramee narrated on the authority of Abdullah ibn Abbaas who said: ‘Whoever gives a religious verdict without knowledge than the sin of it is upon him.’
Similarly it is not permissible for anyone to seek a religious verdict from anyone based upon the saying, opinion, ‘madth’hab’ of another person. Hence, the one seeking religious verdicts are required and instructed to ask the people of knowledge who are known to be people of knowledge and Sunnah. Allah The Most High says: “Ask the people of knowledge if you do not know” (an Nahl 16:43) and what is intended here by ‘knowledge’ is: Quran and Sunnah, as Allah says in the following verse: “And We have sent down to you O Muhammad the ‘Dhikr’ (reminder, advice , Quran) that you may clarify to the people what was sent down to them…” (an-Nahl 16:44).
So the Quran and the clarification of it- is what the religion of Islam is based upon. This is not considered ‘taqleed’ rather it is called ‘al it’ibaa’a’. In all actuality, ‘taqleed’ is not considered knowledge.
The type of ‘taqleed’ of a particular scholar who is not known as being from those who have knowledge of the Quran and Sunnah. This being based upon what we mentioned previously that ‘a question directed to a scholar who knows the Quran and Sunnah is not considered ‘taqleed’. The ‘taqleed’ which Allah and His Messenger dispraised is: accepting the statement of one whose statement is not an authoritative source or evidence in the religion. Furthermore, the questioner about the authoritative sources and religious evidences from a scholar of the Quran and Sunnah is not considered a ‘Muqallid’ rather a ‘Mu’tabi’.
At Tabaraani narrated in his ‘Mu’jam al Kabeer’ from Abee al Ahwas on the authority of Ibn Mas’ud, and narrated from Ibn Hazm in ‘al Ihkaam’ from Hubairah ibn Maryam and Abee al Ahwas both of them on the authority of Ibn Mas’ud who said: ‘Do not blind follow anyone regarding the affairs of your religion, if he believes than he believes, if he disbelieves than he disbelieves, indeed there is no example to be followed in evil.’
Then we come across all the statements of the four scholars of ‘fiqh’ regarding the impermissibility of ‘taqleed’ showing us the importance of this issue and the serious dangers of ‘taqleed’. This is especially for those amongst the scholars who have the ability to know and understand the Islamic legislations and rulings with their proofs and evidences.
Taken from the shaykhs book – Al ‘I’tibaa’a And The Principles Of Fiqh Of The Righteous
 As has been mentioned in ‘al Faqeeh wal Mutafaqih’ on the authority of Imam Ahmed ibn Hanbal. -see ‘al Faqeeh wal Mutafaqih’ 1/220 and it contains: ‘Perhaps there may be a hadeeth from the Prophet Muhammad and within the chain of narration is some defect, so he takes it/uses it if there comes nothing stronger in opposition to it. Like the hadeeth of Amru ibn Shu’ayb, and like the hadeeth of Ibrahim al Hajree, and sometimes he would use the ‘mursal’ (the narration which the successors of the companions narrate from the Prophet ) if there comes nothing contrary to it.’ End of quote. Also Ibnul Qayyim said: ‘The meaning of ‘da’eef’(weak) intended by Imam Ahmed is not that which is false nor ‘munkar’ (one which contains serious errors, or is an open sinner), nor does the chain of narration contain one who has been accused of lieing whereas it is not permissible to use it and act upon it. Rather a ‘da’eef’ (weak) hadeeth in Imam Ahmed’s view the opposite of a ‘saheeh’ (authentic) hadeeth, as the ‘da’eef’ hadeeth is a type of ‘hasan’ (good) narration. As Imam Ahmed did not divide the narrations into ‘saheeh’, ‘hasan’ or ‘da’eef’, rather he divided them into two categories ‘saheeh’ and ‘da’eef’’(see I’laam al Muwa’qaeen’ 2/55-56). This is also what Ibn Taymiyyah affirmed in his ‘Majmoo al Fatawa 1/252, 18/125. That which becomes apparent is: that what is intended by ‘da’eef’ narrations which Imam Ahmed uses, is equivalent to the ‘hasan’ narrations amongst the later scholars.’ (see ‘Irshaad al Fuhool pg.250)
 Marjooh: means less preponderant or weaker, and Rajih: means preponderant or stronger
 I’laam al Muwaqa’een 6/165-166
 (TN) He is Abu Bakr Abdur Razzaq bin Hammam bin Nafi as Sanani. The author of the great book ‘Musanaf Abdur Razzaq’ which contains numerous narrations from the Prophet Muhammad, his companions and their successors. He was born 126H and died in the month of Shawwal, 211H in Sanaa Yemen.
 Musannaf Abdur Razzaq 6/294
 Ad-Daaramee men<oned it in his Sunan 1/53 #161. Al Haakim men<oned it in ‘al-Mustadrik and said: ‘Authentic , according to the conditions of Bukhari and Muslim, and they didn’t mention it in their books, and it has no defect.(al Mustadrik 1/126) There is difference of opinion regarding al-Haakim’s statement ‘according to the conditions of Bukhari and Muslim’, because one of the narrators-Muslim ibn Yasaar-is not from the narrators mentioned in Saheeh Bukhari.
 Sunan ad-Daramee 1/53, #162 Muhammad ibn Ahmed informed us who said, Sufyaan ibn Uyaynah said on the authority of Abee Senaan (Dirar ibn Murrah) on the authority of Sa’eed ibn Jubayr from Ibn Abbaas…
 (TN)Technically it means: acting upon a saying or action from someone whose sayings and actions are not authoritative sources or evidences in the religion.
 (TN) Muqallid is one who follows another person’s sayings whose sayings are not proofs in the religion. Mutabi is the one who follows the divine revelation from Allah in the form of the Quran and Sunnah.
 Mu’jam al Kabeer 9/886 #8764, with the wording: (‘…If it is necessary for you to imitate someone, then imitate those who have passed away, for verily the living person is not safe from fitnah..), also in ‘al Ihkaam’ by Ibn Hazm 6/97, 6/147, Ibn Abdul Barr mentioned it also in ‘al-Jami’ 2/988 #1882 without a chain of narration. The narration also has another chain of narration from Ibn Hazm on the authority of Ibn Wahb who said: the people who heard from al Aw’zaa’ee informed me that he said: Abdah ibn Abee Lubabah mentioned on the authority of Ibn Mas’ud say: It was disliked.