The issues:
The same problem arises on matters like Islamic Finance, where there is khilaf amongst respected 'Ulema over the "halalness" of certain contemporary Islamic Financial products/services; a good example being the Amanah Mortgage Scheme by HSBC Bank. Now, say if someone follows Mufti Taqi Usmani on this, they may go ahead and invest in such a product. But then they may find that another scholar considers this same thing to be non-Islamic.
So what is the taklif of this muqallid ammi now? Is he absolved of responsibility before Allah ta'ala due to the shifting of that burden that taqlid provides? Myself, I have heard Shaykh Al-Ya'qoubi - hafiDHahullah - say this scheme is not Islamic, and because I respect him more, I will trust his opinion over Mufti Taqi, whom I only know by secondary sources. Additionally, Islamic Finance is also one of those areas where one tends to not accept mere taqlid, but wants to familiarise oneself with proofs/evidences.
Is this justified for the muqallid 'ammi again? When I reflected on this double-standard, the only justification I could think of was that by its nature, such a commitment (i.e. to a mortgage) involves much money, which then makes it difficult to extricate oneself if one later discovers it was not halal as one originally thought. So one needs to examine the matter as thoroughly as possible beforehand. But then one naturally hits that same brick wall, that how "thorough" can the investigation of a muqallid 'ammi be anyway, given that it would be led by the juristic preponderances of a scholar anyway?
Answer:
This is the first time I have heard about the HSBC Amanah Scheme—and may this be a sabab for strengths rather than a weakness—but even if sometime in the future were I to study this scheme and end up issuing a negative assessment regarding it following the path laid down by the jurists of my school, when there is already another scholar who had earlier gazetted an opposite ruling—as long as that scholar himself follows one of the orthopraxy schools and issued his 'Fatwa' according to the juridical processes of his school (which you will come to know in the Next world, but in this you only have to assume that he is doing so unless another jurist of his school makes clear that the fatwa was actually a fraud, which though possible is very unlikely)—then there is no question that in the event the Scheme is disclosed by Allah in the Next world to be illegal, all of the muqallids who followed the then wrong ruling will bear no burden whatsoever for not knowing something they could not have expected to know. (The scholar in question—as long as he was being true to himself [sidq] (e.g., not having any vested motive, about which only Allah can be the judge, in the Next world) in his intention [niyya] to seek the right answers but ended up giving a wrong answer—too will not be penalized, but rather, owing to his sincere efforts (i.e., his Ijtihad and ikhlas) he will be rewarded by it, and if not, only he alone will be penalized and none of his muqallids following his path.)
This is among the true beauties of this Umma and should bear fruit for us, as in the past, to a degree and in a manner of tolerance not witnessed during the inquisitions of Medieval and Reformation Europe, a tolerance which is so liberating a value and in which other religions were usually found wanting in those times:
al-muSIbu la-hu ajrAni wa-l-mukhTi'u la-hu ajrun wAHidun wa-kullun min-hum yaTlubu riDA LlAhi [the one (among the scholars) who is correct will have two points and the one who is mistaken will only have one point when every one of them was seeking the pleasure of Allah].
Taqlid cannot work without trusting one another, and the basis for this practical necessity and any other form of taqlid is ultimately derived from one of the Necessary Prophetic attributes, namely, Amana. Despite that, legal truths cannot be judged by our wahms and emotional faculties, while the thawabit of the Law are not influenced by our whims and impressions. Hence the great respect you have for your beloved teacher will in no way affect the right/wrong-value of the other less respected* 'alim's legal judgement.
(*How would you know one is *less knowledgeable* than the other? Put yourself in my shoes here. I ask myself now when I am neither a teacher to either of them and as someone who knows not about this and who is weak in knowledge, how could I possibly judge the one 'alim to be more knowledgeable than the other' feelings aside? And even if it turns out to be the case in the Hereafter that the one 'alim was indeed more knowledgeable than the other, it is still possible [jawaz 'aqlan] that the one with less knowledge and piety may just be right in this mas'ala!)
I have explained the minimum legal standards—that absolve the 'ammi from sin and responsibility—and if there remains shubuhat and controversy over the Scheme raised by one teacher against another (and it may be due to that that the 'ammi starts to have doubts over the permissibility of such transactions or products), then the way of Ihsan is to avoid the controversial product. (A Final Hojja Note: Although as Imam al-Ghazali would have it, to fall from such a peak will not result in sin even with the shubuhat.)
Whatever the case may be, and whoever you decide to follow in the end, especially were you not to adopt your own teacher's misgivings, it behoves you to always have a good opinion of him who first raised objections about it and assume therefore that he must in fact be taking the way of caution [ihtityat] that is beyond the minimum standards and that this may be among the reasons why there appears to be a khilaf.
If any reputable 'alim who is also a jurist of one of the four madhhabs has thrown the towel, so to speak, regarding a matter today, and an 'ammi decides to follow him in that legal question and this following is entirely a private and a personal decision on his part, even if that 'ammi does not belong to the same school as the 'alim then it will only be a disadvantage to the follower when he begins to investigate the matter further—maybe into hair-splitting detail—since Shaytan is a past-master at finding some sabab and cause for great hardship. As the wisdom of the Prophetic Sunna goes: yassiru wa la-tu'assiru [roughly: when it's easy don't make it harder!]. This is the meaning of 'taqlid'-of-the-type-of-blindly-following-someone which is only permissible in matters dealing with 'amal. The advantage of being a Muqallid here is indeed the rukhsa of not having to do *any* investigation whatsoever.
In any case, this episode shows why we have in the Sunna of our Prophet, and confirmed through the Athar of many of his companions and attested by the Ijma' of the Umma in the form of the following words of wisdom:
raHmatu l-ummati fI ikhtilAfi l-a'immati [The Umma's mercy is in the differences of the Imams] —but remember too, as long as he or she is among our Imams!
May this not be in waste; From the haqir in haste: M. Afifi al-Akiti 9th Jumada I 1425 28 June 2004
Reference: asunnifaqir.blogspot.com
