Islam, Custom and Human Rights by Lutforahman Saeed

Author:Lutforahman Saeed
Language: eng
Format: epub
ISBN: 9783030830861
Publisher: Springer International Publishing

4.7 Making Decisions According to the Dominant Opinion of the Ḥanafī Doctrine

A common feature of Islamic jurisprudential schools is that there is a variety of opinions regarding one legal issue. The Ḥanafī school of thought is not an exception in this regard. To avoid anarchy in decision-making in accordance with the dominant opinion in the Ḥanafī school regarding a case, Ḥanafī scholars have regulated the hierarchy of the sources and opinions within the Ḥanafī school of thought. These regulated principles are widely accepted in the Ḥanafī school and give legitimacy to legal decisions. Ḥanafī school scholars emphasize that it is the obligation of judges to follow the well-established principles of preference and make decisions accordingly.

A Ḥanafī imitator judge is only authorized to rely on a provision of the Ḥanafī school of thought that is accepted as a dominant opinion by the Ḥanafī scholars. In this regard, there are two standards for a Ḥanafī judge: the first one is that a judge must follow the Ḥanafī school doctrines in his decisions; the second one is that he must respect the principle of preference among the Ḥanafī school doctrines. If a Ḥanafī judge does not make a decision in accordance with the Ḥanafī school doctrines or if his decision is based on Ḥanafī school opinions but does not respect the principles of preference within the Ḥanafī school, then the decision is not valid and must not be implemented.129 Thus, Ḥanafī scholars regulate Ḥanafī school opinions and sources in terms of strong or weak opinions and trustworthy or nontrustworthy sources.

There are concrete principles, which are called (qawāʿid al-iftāʾ) Principles of Issuing fatwa (legal opinion), that regulate the preference of opinions within the Ḥanafī school. The hierarchy of scholars and their opinions require judges, when making decisions, to search for the answer among the Ḥanafī scholars’ opinions from top to bottom. For example, if there is an opinion from one of the first-class scholars, Imam Abū Ḥanīfa, Imam Abū Yūsuf, or Imam Mohammad, regarding a case, the judge should not make a decision according to the opinion of a second-class scholar (their students). If there is any conflict of opinions within the school, they are resolved by the preference rules.

A Ḥanafī imitator judge cannot go beyond the doctrines of his own school and make a decision based on other schools’ opinions. The imitator judges must follow their own school of thought and cannot go against the doctrines of their school.130 Ḥanafī scholars clearly state that if an imitator judge, like the current judges in Afghanistan, makes a decision not in accordance with the Ḥanafī school doctrines, their decision is not valid and must not be implemented.131

To analyze the court decisions in the cases under study in this work, it is necessary to discuss the principles of preference and the hierarchy of the sources within the Ḥanafī school of thought in greater detail and then examine whether the court made its decision in accordance with these norms. Following a brief explanation of the principles of

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