باب: ما يقضي به القاضي ويفتي به المفتي، فإنه غيرجائز له أن يقلد أحدا من أهل دهره، ولا أن يحكم أو يفتي بالاستحسان
What the judge rules by and the mufti gives fatwa by; it is not permissible for him to follow anyone of his time blindly, nor to rule or give fatwa by istihsan
18 hadith
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Imam al-Shafi'i (may Allah have mercy on him) said: "'And if you disagree over anything' [Surah al-Nisa: 59] means, and Allah knows best: they and their rulers whom they have been commanded to obey. 'Refer it to Allah and the Messenger' [Surah al-Nisa: 59] means, and Allah knows best: to what Allah and the Messenger have said."
And Allah Almighty said: "Does man think that he will be left neglected (sudan)?" [Surah al-Qiyamah: 36]
Imam al-Shafi'i (may Allah have mercy on him) said: "To my knowledge, the scholars of the Qur'an do not differ that 'sudan' is the one who is neither commanded nor forbidden anything. And whoever gives a fatwa or a judgement on something he was not commanded to, has permitted himself to fall within the meaning of 'sudan' (one left neglected)."
The Shaykh (Imam al-Bayhaqi) (may Allah have mercy on him) said: "And it has been narrated to us from Imam Mujahid (may Allah have mercy on him), in the interpretation of these two verses, something similar to what Imam al-Shafi'i (may Allah have mercy on him) said."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / Q20335
Yazid bin Hayyan said: I heard Sayyiduna Zayd bin Arqam (may Allah be pleased with him) say: One day the Prophet (peace and blessings be upon him) stood among us delivering a sermon. After praising and extolling Allah, he (peace and blessings be upon him) said: "O people, I am only a human being. Soon the messenger of my Lord will come and I will respond to him (meaning death). I am leaving among you two things: the first is the Book of Allah, in which there is guidance and light. So hold fast to the Book of Allah." Then he (peace and blessings be upon him) urged (adherence to) the Book of Allah and encouraged it. Then he said: "The second is my household; I exhort you regarding my household," three times.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20335
Ikrimah (may Allah have mercy on him) narrates from Ibn Abbas (may Allah be pleased with them both) that the Prophet (peace and blessings be upon him) delivered a sermon on the occasion of the Farewell Hajj and said: "O people, I am leaving among you that which, if you hold fast to it, you will never go astray: 1. the Book of Allah, 2. the Sunnah of His Prophet (peace and blessings be upon him)."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20336
Sayyiduna Abu Hurayrah (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) said: "I am leaving among you that which, as long as you hold fast to it, or he said: act upon it, you will never go astray: 1. the Book of Allah, 2. my Sunnah."
"And they will never separate until they come to me at the Pond."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20337
Sayyiduna Irbad bin Sariyah (may Allah be pleased with him) said: The Prophet (peace and blessings be upon him) led us in the morning prayer, then turned towards us and gave us an admonition by which hearts trembled and tears flowed. We said: O Messenger of Allah, this is like a farewell admonition, so give us counsel. He (peace and blessings be upon him) said: "Even if your ruler is a slave, obey him, and be mindful of Allah (taqwa). Whoever among you lives on will see much disagreement. Hold fast to my Sunnah and the Sunnah of the rightly guided Caliphs; bite onto it with your molar teeth. Beware of innovations, for every innovation is misguidance."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20338
Al-Harith bin Amr narrates from the companions of Sayyiduna Mu'adh (may Allah be pleased with him), from Sayyiduna Mu'adh (may Allah be pleased with him), that when the Prophet (peace and blessings be upon him) sent Sayyiduna Mu'adh (may Allah be pleased with him) to Yemen, he said: "How will you judge when a case comes before you?" He said: By the Book of Allah. He (peace and blessings be upon him) said: "And if you do not find it in the Book of Allah?" He said: In accordance with the Sunnah of the Messenger of Allah (peace and blessings be upon him). He (peace and blessings be upon him) said: "And if you do not find it in the Sunnah of the Messenger of Allah (peace and blessings be upon him)?" He said: By my own opinion, and I will spare no effort. He said: The Prophet (peace and blessings be upon him) passed his hand over my chest and said: "All praise is for Allah, who has enabled the envoy of the Messenger of Allah (peace and blessings be upon him) to do what pleases the Messenger of Allah (peace and blessings be upon him)."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20339
Al-Harith bin Amr (may Allah have mercy on him), who was among the students of Mu'adh bin Jabal (may Allah be pleased with him), said that when the Messenger of Allah (peace and blessings be upon him) sent Mu'adh (may Allah be pleased with him) to Yemen. It has the same meaning as the above.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20340
Maymun bin Mihran said: Whenever a case came before Sayyiduna Abu Bakr (may Allah be pleased with him), he would look into the Book of Allah. If it was found in the Book of Allah, he would judge by it. If he did not find it in the Book of Allah, he would look into the Sunnah of the Prophet (peace and blessings be upon him). If he knew it, he would judge according to it. If he did not know, he would go out to the Muslims and say: Such-and-such a case has come to me; I found nothing in the Book of Allah or the Sunnah of the Messenger. Do you know of the Prophet (peace and blessings be upon him) having given any judgement concerning it? Sometimes a group would go to him and say: Yes, such-and-such a judgement was given concerning it. Then he would judge in accordance with the judgement of the Messenger of Allah (peace and blessings be upon him).
Ja'far said: Someone other than Maymun narrated that Sayyiduna Abu Bakr (may Allah be pleased with him) would say at that time: All praise is for Allah, who has granted that some among us preserve the sayings of His Prophet (peace and blessings be upon him). If no one remembered, he would summon the people before him and consult the scholars and others. If their opinion was agreed upon, he would judge accordingly.
(b) Ja'far said: Maymun narrated that Sayyiduna Umar bin al-Khattab (may Allah be pleased with him) also used to do the same. If he found its basis in the Qur'an and Sunnah, well and good; otherwise he would look at the judgements of Abu Bakr al-Siddiq (may Allah be pleased with him). If he found a judgement, he would judge accordingly; otherwise he would consult the leaders and scholars of the Muslims and judge accordingly.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20341
Imam al-Sha'bi (may Allah have mercy on him) narrates from Qadi Shurayh (may Allah have mercy on him) that Sayyiduna Umar bin al-Khattab (may Allah be pleased with him) wrote to him: When the ruling on a matter is found in the Qur'an, judge according to it, and do not let people turn you away from it. If it is not in the Qur'an, then look into the Sunnah of the Messenger (peace and blessings be upon him); if you find it, judge according to it. If it is in neither the Qur'an nor the Sunnah, then judge according to what the people have agreed upon (ijma'). If neither the Qur'an, the Sunnah nor the opinion of the people is available, then choose whichever course you like: if you wish, exercise your own judgement (ijtihad), then either act on it at once or defer it, though deferring is better.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20342
Hurayth bin Zuhayr said: Abdullah bin Mas'ud (may Allah be pleased with him) said: O people, a time came upon us when we neither judged nor were we present there, and Allah Almighty has brought us to the rank you see. After today, if anyone has to give a judgement, let him do so in accordance with the Book of Allah. If it is not in the Book of Allah, then judge in accordance with the Sunnah of the Messenger (peace and blessings be upon him). If it is not in the Book or the Sunnah, then take into consideration the judgements of the righteous. If it is not in the Book, the Sunnah or the judgements of the righteous, then use your own opinion. Let no one say: I am afraid, or: I think. "The lawful is clear and the unlawful is clear, and between them are doubtful matters. Leave what causes you doubt for what does not."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20343
Maslamah bin Mukhallad came to Sayyiduna Zayd bin Thabit (may Allah be pleased with him) and said: O my cousin, we have been compelled to judge. Sayyiduna Zayd (may Allah be pleased with him) said: Judge in accordance with the Book of Allah. If it is not in the Book of Allah, then judge in accordance with the Sunnah of the Messenger (peace and blessings be upon him); otherwise, summon the people of sound opinion and consult them, then exercise your own judgement (ijtihad) and choose your own view; there is no harm in it.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20345
Ubaydullah bin Abi Yazid said: I heard Abdullah bin Abbas (may Allah be pleased with them both): when he was asked about something and it was in the Qur'an, he would rule according to it. If it was not in the Qur'an, he would rule in accordance with the Sunnah of the Messenger (peace and blessings be upon him). If it was in neither the Qur'an nor said by the Messenger of Allah (peace and blessings be upon him), but Abu Bakr and Umar (may Allah be pleased with them both) had said it, he would adopt it; otherwise he would exercise his own judgement (ijtihad).
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20346
Idris al-Awdi (may Allah have mercy on him) said: Sa'id bin Abi Burdah (may Allah have mercy on him) brought out a letter and said that this letter was from Sayyiduna Umar (may Allah be pleased with him) to Sayyiduna Abu Musa (may Allah be pleased with him). He mentioned the hadith, in which it says: Understand! Understand well! When a matter raises doubts in your heart and it is not found in the Qur'an and Sunnah, then try to recognise similar matters, then make analogy between the matters, and aim for what is most beloved to Allah Almighty and most closely resembles what is in your view.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20347
Masruq (may Allah have mercy on him) said: A scribe wrote on behalf of Sayyiduna Umar (may Allah be pleased with him): This is what Allah has shown the Commander of the Believers, Umar (may Allah be pleased with him). Sayyiduna Umar (may Allah be pleased with him) rebuked him and said: Write: This is the opinion of Umar. If it is correct, it is from Allah, and if it is wrong, it is from Umar.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20348
Abdah bin Abi Lubabah (may Allah have mercy on him) narrates from Sayyiduna Ibn Mas'ud (may Allah be pleased with him) that he said: No man should blindly follow another in his religion, such that if he believes, the other believes, and if he disbelieves, he too disbelieves. If anyone wishes to follow, let him follow those who have died and leave the living, for they are not safe from trial (fitnah).
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20349
Sayyiduna Adi bin Hatim (may Allah be pleased with him) said: I came to the Prophet (peace and blessings be upon him) with a cross of gold around my neck. He said: I heard the Messenger of Allah (peace and blessings be upon him) saying: "They took their scholars and monks as lords besides Allah." [Surah al-Tawbah: 31]
I said: O Messenger of Allah, they did not worship them. He (peace and blessings be upon him) said: "Yes, but they declared lawful for them what Allah had made unlawful for them, and declared unlawful for them what Allah had made lawful for them. That was their worship of them."
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20350
Abu al-Bakhtari said: Sayyiduna Hudhayfah (may Allah be pleased with him) was asked about this verse: "They took their scholars and monks as lords besides Allah" [Surah al-Tawbah: 31]: Did they pray to them? He said: No. But they declared lawful for them what Allah had made unlawful for them, and declared unlawful what Allah had made lawful for them. Because of this they became lords.
Hadith Referenceالسنن الكبرى للبيهقي / كتاب آداب القاضي / 20351