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17 — Characteristics of the Issuer of Legal Opinions and the Seeker of Legal Opinions

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The issuer of legal opinions must be knowledgeable of the roots and branches of legal science, including the opinions of his own school of law and the disagreements of other schools. He must be fully competent in diligent inquiry. He must know all that he needs to know for determining legal values, in several fields: grammar, language, the science of the men who related traditions, the explanation of verses concerning legal values, and reports concerning legal values.

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The seeker of legal opinion must be one who follows existing opinions, and he must follow the opinion of the issuer.

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A scholar may not follow existing opinion, though some say that he may.

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To follow existing opinion is to accept without proof what someone has said. According to this definition, to accept what the Prophet (God’s blessing and peace be upon him) said is called following existing opinion.1 Some say that to follow existing opinion is to accept what someone has said without knowing where he got it. On this definition, if we hold that the Prophet (God’s blessing and peace be upon him) used to speak on the basis of analogy,2 then accepting what he said can be called following existing opinion.

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Key terms

    • issuer of legal opinions: muftī
    • seeker of legal opinions: mustaftī
    • following existing opinion: taqlīd
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Notes

  1. Some copies correct this to “is not called following existing opinion,” presumably to avoid the consequence that a scholar may not accept what the Prophet said without proof. This correction is not necessary; it may be that al-Juwaynī mentions this consequence of the first definition to show that the second definition is preferable. ↩
  2. The question of whether the prophet sometimes relied on analogy or engaged in diligent inquiry, as opposed to speaking solely on the basis of revelation, is debated. ↩
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Source: http://waraqat.vishanoff.com/e/e17/