Is it permissible for a mufti to follow the dispensations (rukhas) of scholars in a matter for which he has not found a stronger position, while knowing that it contradicts an authentic hadith?
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The questioner : There is a problem here, my Shaykh. If a man comes to us with his problem and I do not find a solution for it, is it permissible for me to follow the dispensations (rukhas) in the schools of jurisprudence?
The Shaykh : It is not permissible.
The questioner : For example, if we apply this man's problem to the Hanafi school, which permits a girl to marry without the permission of her guardian, while I believe that the hadith is authentic and so on.
The Shaykh : I did not apply this.
Al-Huwaini: No, this is a question.
The Shaykh : Ah, a separate, second question.
Al-Huwaini: Yes, if I applied it, I would be sinful, given my belief in the authenticity of the hadith of Aisha or Abu Musa.
The Shaykh : Of course, of course, it is sinful. For example, you believe that you are contradicting the hadith; but the matter there is not like that; because he believes that the girl's father is a disbeliever.
Al-Huwaini: Well, here every person has the right to interpret it according to his own interpretation.
The Shaykh : This is what we said earlier. We said that it is misleading after they have studied the knowledge; but this is a reality, the situation has occurred; they do not have the right to exercise independent legal reasoning (ijtihad). We say that in a matter simpler than this, they are in error when they exercise independent legal reasoning (ijtihad) and then do not know how to understand a text from the Book of Allah or a hadith of the Messenger of Allah (peace and blessings be upon him). That is, we only have this problem; what is the way to solve it? We cannot say that your contract is invalid, and that these are illegitimate children, as long as it is not like the case of the one you are asking about, who knows that there is no marriage without a guardian and then contradicts that. So, if he marries, there is no doubt that his contract is invalid, even if offspring come from him; this is an invalid marriage. But that case is not like this one, and Allah knows best. Yes.
The Shaykh : It is not permissible.
The questioner : For example, if we apply this man's problem to the Hanafi school, which permits a girl to marry without the permission of her guardian, while I believe that the hadith is authentic and so on.
The Shaykh : I did not apply this.
Al-Huwaini: No, this is a question.
The Shaykh : Ah, a separate, second question.
Al-Huwaini: Yes, if I applied it, I would be sinful, given my belief in the authenticity of the hadith of Aisha or Abu Musa.
The Shaykh : Of course, of course, it is sinful. For example, you believe that you are contradicting the hadith; but the matter there is not like that; because he believes that the girl's father is a disbeliever.
Al-Huwaini: Well, here every person has the right to interpret it according to his own interpretation.
The Shaykh : This is what we said earlier. We said that it is misleading after they have studied the knowledge; but this is a reality, the situation has occurred; they do not have the right to exercise independent legal reasoning (ijtihad). We say that in a matter simpler than this, they are in error when they exercise independent legal reasoning (ijtihad) and then do not know how to understand a text from the Book of Allah or a hadith of the Messenger of Allah (peace and blessings be upon him). That is, we only have this problem; what is the way to solve it? We cannot say that your contract is invalid, and that these are illegitimate children, as long as it is not like the case of the one you are asking about, who knows that there is no marriage without a guardian and then contradicts that. So, if he marries, there is no doubt that his contract is invalid, even if offspring come from him; this is an invalid marriage. But that case is not like this one, and Allah knows best. Yes.
Source
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