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Maliki Scholars: The Obligation of Following The Mashoor When Giving Fatwa
By Ustadh Abdus Shakur Brooks

The famous scholar and mufti Shaykh ‘Ulaysh (1299 A.H) mentions in his well-known book of fatwa titled Fath ul-‘Aliy Al-Malik fi’l-fatwa ‘ala Madhhab al-Imam Malik, in which he quotes al-Maziri ( 536 A.H) after establishing that a person cannot give a fatwa contrary to the mashoor :

…..أن العدول عن المشهور أو ما رجحه شيوخ المذهب الملكى من ضعف العلم و قلة الدين

“Verily the abandonment of following the mashoor or what the authoritative scholars of the madhhab [ such as Ibn Rushd -520 A.H- and others like him] have considered as al- rajih [the sound opinion] is an example of the decadence of knowledge and religious integrity.”

In the same book Shaykh ‘Ulaysh quotes al-Baji al-Andalusi (403 A.H) who was a prominent scholar of the madhhab and famous for his commentary on the Muwatta’ of Imam Malik, saying:

وهذا لا خلاف فيه بين المسلين ممن يعتد به في الإجماع في منع الفتيا بغير المشهور والمقلد مثله

“And there is no difference of opinion, between the scholars, whose opinions are relied upon for consensus, about the prohibition of giving fatwa contrary to the mashoor. And the same goes for the muqallid.”

Shaykh ‘Ulaysh also quotes Ibn Abi Jamrah (699 A.H):

كذا يذكر عن ابن أبي جمرة أنه لايحل أن يفتى في دين الله إلا بالمشهور.

“And likewise it is mentioned from Ibn Abu Jamrah that it is not permissible to give fatwa in the religion of Allah except by the mashoor.”
Shaykh ‘Ulaysh also mentions in his book al-Ajwibah:

إذ يجب العمل بالراجح والمشهور مذهبنا, وإن لم نعلم دليله ولا قوّته ولا الاتفاق عليه, فإنه – أي ما ذكر من الراحج أو المشهور- حجة علينا ما دمنا في ربقة التقليد. قال ونظْرُنا في الأدلة والاتفاق والاختلاف فضول, إذ وظيفتنا مخض التقليد واتّباع الراجح أو المشهور, والله سنحانه وتعالى أعلم.

“…. For one is obligated to follow in one’s practice [the opinion] that is rajih, or mashoor in our madhhab [that is, the Maliki madhhab] even if we do not know the proof for that opinion, nor the strength of the opinion nor the fact that there is agreement, for it [that is, the rajih, or the mashhur] is the compelling authority over us as long as we are tied with the tether of taqlid. Our speculation (nazr) based on the proofs and on the agreement [of the fuqaha] and their disagreement is meddling, for our job is pure taqlid, and to follow the rajih, or the mashhur. Allah, Whom I declare to be Perfect beyond all defects and Exalted beyond all comparison, knows best.”

Shaykh ‘Ali al-Sa‘idi al-‘Adawi (1189 A.H), the author of the famous margin-commentary called Hashiyah‘ala Kifayat ul-Talib al-Rabbani:

وأما إذا كان أحدهما [أي القولان] مشهورا, فيجب العمل بالمشهور, ولا يجوز العمل بالضعيف, ولو في خاصة نفسه.

“However, if one of them ,of two contradictory opinions, is mashoor, then one is obligated to follow, in one’s practice, the mashoor, and it is not permissible to follow the weak opinion in one’s own practice.”

Imam al-Shatibi ( 790 A.H) in his celebrated work entitled al-Muwafaqat quotes al-Maziri – one of the most authoritative Maliki scholars in his time (as well as one of the scholars whom Shaykh Khalil relied upon in his Mukhtasar) as saying:

ولست ممن يحمل الناس على غير المعروف المشهور من مذهب مالك وأصحابه؛ لأن الورع قل، بل كاد
يعدم، والتحفظ على الدينات كذلك، وكثرت الشهوات، وكثر من يدعى العلم ويتجاسر على الفقوى فيه

“I am not one of those who give people fatwa other than what is known to be the mashoor opinion in Malik’s madhhab and that of his companions. That is because piety and god-fearfulness has deteriorated, indeed almost absolutely gone and likewise the preservation of religious practice .Vain desires are soaring; numerous are those who claim to be knowledgeable and give bold and reckless fatwa.”
Seeing what the scholars have mentioned here, one should not be mislead into believing that contemporaries have the freedom to rule by the “weak opinion”unconditionally; meaning without it being a weak opinion that was acted upon by the mujtahids in fatwa within the school long before us (such as Ibn Rushd, Al-Maziri and others).

Those weak opinions established by the mujtahids in fatwa take a new technical status called ” ما جرى به العمل ” which in general refers to “those weak options that are given preference/selected over the the mashoor by a mujtahid in fatwa within the school, for a particular existing reason, in a specific time and place, under a specific circumstance”. These issues are numbered within the school and does not apply to “any weak opinion” that a contemporary assumes to opt for in giving a fatwa. In fact the established protocol (as we have seen previously) is that a person who is not at the level of mujtihad in fatwa is not allowed to rule by a weak opinion, but rather their job is simply to transmit the mashoor opinion of the Maliki madhhab and have the wisdom to teach others how to apply it in a practical and meaning manner. We see in this article just a few of many renowned scholars of the school, throughout different centuries and different places, unified under this protocol. Yet in our times, when sacred knowledge is like an endangered species, we have those who assume they are independent of the protocols established by the competent predecessors whose knowledge has been undoubtedly attested for. As Al-Maziri puts it ” it is an example of the decadence of knowledge and religious integrity”.