Opinions found in the Maliki school are as follows:
- 1. Mutafaq Alyhi (agreed upon within the madhhab)
- 2. Raajih (Stronger by it’s evidences)
- 3. Mashhoor (Dominant in it’s number of scholars who held it)
- 4. Musaawi (multiple opinions equal in strength)
- 5. Daeef (Weak – opposite of raajih)
- 6. Shadh (Odd – opposite of mashhoor)
Imam al Aghlali organizes the order in which the fatwa of the school should be in his Boutlayhiyya saying
فما به الفتوى تجوز المتفق * عليه فالراجح سوقه نفق
فبعده المشهور فالمساوي * إن عدم الترجيح في التساوي
The organization goes in the same order from 1-4 above. The problem presented here is that the ulema say the put the mashhur in front of the raajih while in texts such as the Boutlayhiyya and works of usul al fiqh say that the raajih is to be given preference. Is this a contradiction?
In his refutation of Ibn al Qaasim al Umayri’s (d. 1178 AH) Risala fi Al Fatwaa bi Ghayr al Mashhoor wal amal bihi – Treatise on the permissibility of fatwa by other than the mashhur and acting upon it – Mohamed ibn Abdul Salam Al Bijri (d. 1169) puts forth a discussion on the definition of what the Mashhur means.
He quotes the great scholar of the madhhab Ibn Bahsir rA saying “The scholars have differed in defining the mashhur on two opinions;
The first is that it is that which it’s evidence is stronger
The second is that which it’s opinion has been popularized”
The first is in accordance to what the raajih was defined as above where as the second is in accordance to what the mashhur was defined as above.
Ibn Abdul Salam comments on this saying that the first is in relation to the Mujtahid which the second is for the Muqalid and that based on this the difference on the definition of mashhur is a semantical difference since it is only the mujtahid who is to look at evidences and decide what position is stronger while the muqalid should follow what the majority of his madhhab is upon. By this, there is no contradiction in the issue mentioned above especially since the books of usul al fiqh are written to aid the student in arriving at the level of ijtihad so they are speaking to the one who is a mujtahid. As for the ulema and muftis who put forth the mashhur, it is because for the ones who do not have the right to do direct ijtihad from the Qur’an / Sunnah it is upon them to follow the mujtahids of their madhhab which becomes the evidence for them.
What is left then is to know the levels of mujtahid’s in the madhhab as it relates to tashheer or – declaring a position mashhur. Al Hattab says in his famous commentary on Mukhtasar Khalil:
“If the one’s declaring a position as mashhur are not in the same level then the one chosen is the the declaration of the more knowledgeable one” he later quotes Ibn al Furaat saying “The tashheer of Ibn Rushd is put ahead of Ibn Baziza’s and Ibn Rushd, Al Mazari, and Abdul Wahhab are all equal”
