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الْإِفْتَاءُ بِالضَّعِيفِ · al-Ifta' bi'l-Da'if: When You May Use the Weaker View, and Where the System Runs Out

الْحَاكِمُ الْمُجْتَهِدُ · A Judge Who Is a Mujtahid

If the judge is a mujtahid, he may only rule and give fatwā by whatever is the stronger view in his own judgement.

Al-ʿAllāma Qāsim, that is Qāsim b. Quṭlūbughā (d. 879H), quoted by Ibn ʿĀbidīn (d. 1252H), p. 183.

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الْحَاكِمُ الْمُقَلِّدُ · A Judge Who Is a Follower

If the judge is a follower, he rules and gives fatwā by whatever is well known in his school, even where he is not personally convinced it is the stronger view. He is following his imām on which view is stronger, in the same way he follows him on the answer itself.

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اِتِّبَاعُ الْهَوَى حَرَامٌ · Going By Your Own Preference Is Forbidden by Ijma'

Following your own preference when ruling or giving fatwā is forbidden by ijmāʿ. And ruling or giving fatwā by the weaker view goes against ijmāʿ.

Al-ʿAllāma Qāsim, p. 183.

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الْعَمَلُ لِلنَّفْسِ بِخِلَافِ الْفَتْوَى · Acting on a View From Outside the School, For Yourself Only

A mujtahid may act, for himself, on whatever his own ijtihād reaches, even where that differs from his school. Al-Muḥaqqiq Ibn al-Humām (d. 861H) did exactly this, and took positions outside the madhhab.

But that is a permission for him alone. It is not a precedent anyone else may pick up. Ibn ʿĀbidīn (d. 1252H) holds that Ibn al-Humām is followed in what he checks and prefers among the reports and the views, but only so long as he stays inside the madhhab. Where he left it, nobody follows him. His own student Qāsim ibn Quṭlūbughā (d. 879H) said the same.

Why the line falls exactly there. The early imāms' ijtihād is judged stronger than his, because they knew the evidence and had sorted what is sound and established from what is not. So he may carry his own conclusion on his own shoulders. He may not build other people's cases on ijtihād weaker than theirs. And there is a second reason: the man who came asking wanted the madhhab of the imām this muftī follows. That is what he must be given.

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مَا يُعْلَمُ وَلَا يُفْتَى بِهِ · A Ruling That Is True but Deliberately Not Given Out

Suppose a landowner plants a low-yield crop when he could have planted a higher-yield one. The higher kharāj is owed. But the scholars said this: it is known, and it is not given out as fatwā, in case oppressors take it as licence to seize people's property.

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تَعْرِيفُ الْعُرْفِ وَالْعَادَةِ، وَقَاعِدَةُ "الْعَادَةُ مُحَكَّمَةٌ" · 'Urf and 'Ada, and the Maxim "Custom Is Given Authority"

Every ʿurf is an ʿāda, but not every ʿāda is an ʿurf. ʿUrf is custom among people, something a society settles into. ʿĀda is wider, and takes in patterns that are not social at all, such as climate affecting the age at which puberty comes.

The famous maxim runs: custom is given authority to judge. It means a settled custom can itself become the basis of a Sharīʿa ruling, and the thing you refer back to whenever a dispute comes up.

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عُرْفٌ عَامٌّ وَعُرْفٌ خَاصٌّ · Two Kinds of Custom: General and Local

A general custom sets a general ruling, and it can even narrow down qiyās and settled precedent. A local custom is different. It only sets a ruling for its own place, and only so long as it does not clash with qiyās or precedent. Where it does clash, it cannot narrow them.

Examples of general custom: people ordering goods to be made, the istisnāʿ contract, even though the thing does not exist yet; using the word ḥarām to mean divorce; going into a public bath without agreeing beforehand how long you may stay. Examples of local custom: the people of Iraq using dābba, mount, to mean a horse in particular; selling certain fruits by weight in one land and by count in another; requiring the dower up front in some regions and not in others.

A general custom's ruling holds in every land. A local custom's ruling holds only in the town where it is practised.

Two cases to keep apart. If a custom clashes head-on with a clear text of the Sharīʿa, it carries no weight at all, no matter how many people follow it. Think of people treating ribā as normal, or drinking wine, or men wearing silk and gold. But if it clashes only in some particular cases, and the evidence on the other side is qiyās rather than a clear text, then a sound general custom CAN narrow that qiyās and set it aside. A local custom is only taken into account where it does not clash with the qiyās at all.

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