CONCEPT OF TAKHAYYUR

CONCEPT OF TAKHAYYUR 

by Muhamad Afiq Abd Razak

In jurisprudence Islam (fiqh) there are concept in which jurists (fuqaha') discussed pertaining to mixing of madhabs or in other word, adhering to more than one madhab. There are four (4) forms of mixing of madhabs that are most popular in the discourse of usul al-fiqh known as:

1. Talfiq 
2. Takhayyur 
3. Tatabbu' al-rukhas
4. Tarjih

Though these four concepts are almost similar - since some scholars used them interchangeably, and in fact that these terms shares common ground of consolidating of madhabs but they are certainly possess their own unique attributes. Initially, to my humble opinion, one should holds into a certain madhab and ideally for its entirety but the more we read from the literature, it is common practice within Islam scholastic since it is not restricted at least before the 4th century. Nevertheless, scholars, jurists have their own stand toward these as some of them permitted such concept while others put restrictions for their application. This is to safeguard the means of shara' that not to be taken for granted, or to impart deviation. Later scholar distinguish these as follows:

Talfiq
The act of consolidated taqlid upon two (opinions of) imams or more in an action that has its own rukn (tenets) and having interrelated juz'iyyat of one to another. (Wahbah Zuhailiy) 

Takhayyur
Process of selecting one opinion from many or ruling from different opinion of different madhab. 

Tatabbu' al-rukhas
Taking the easiest ruling from every madhab towards upcoming problem.

Tarjih
A process of selecting an opinion based on the strength of its evidence (dalil). This process also a part of ijtihad intiqa'i (selective deduction - as opposed to ijtihad insya'i or creative deduction) coined by Dr Yusuf al-Qaradhawi in which choosing the strongest opinion amongst all available opinion - and this is the method used by previous mujtahids for generations. Note: ijtihad intiqa'i defined as determination of fiqh law which is carried out by revealing the opinions of previous scholars and the arguments used by them then comparing and choosing opinions that have stronger arguments and are more in line with current conditions (Sufriadi et al., 2021).  

These can further categorised into ijtihad and taqlid, where for tarjih, it is essentially an offshoot of ijtihad - because tarjih involves analytical approach in sieving the strongest dalil. Whereas for others (takhayyur, tatabbu' al-rukhas and talfiq) are essentially fall under taqlid since the approach does not involve analyse-to-develop ruling but rather utilizing the existing opinions. 

The question is, what is the ruling or hukm to apply any of these? To simply put, here are one of the opinion that ruled out these 4 approaches:

Talfiq*: permissible but with conditions
Takhayyur*: permissible as long as does not by desire unjustly. 
Tatabbu' al-rukhas*: Mainly not permissible as it is looked as way for escapism or taking for granted. 
Tarjih: Fardh kifayah (collective obligatory).

(*) approach is basically employed by commoners that does not possess credential to assess the strength of dalil in any madhabs (Anisah Ab. Ghani et al., 2007). 

On takhayyur

A study by Esposito explained that takhayyur means the right of Muslim to select and follow the teaching of a law school other than his own with regard to a particular legal transaction. To some extent, the usage of takhayyur within Islamic law (in some Muslim countries) associated with the notion of legal reform. Hitherto it is evidenced that takhayyur applied within Islamic world in Islamic Family Law (Esposito, 1976) and Islamic Finance (Khan, 2013). 

Bibliography

Anisah Ab. Ghani et al. (2007). Penerimaan masyarakat Islam di Malaysia terhadap amalan percampuran mazhab dalam isu-isu ibadat. Jurnal Fiqh (4), 197-222

Esposito, J.L. (1976). Muslim family law reform: towards an Islamic methodology. Islamic Studies, SPRING 1976, Vol. 15(1) page 19-51, Islamic Research Institute, International Islamic University, Islamabad

Khan, G. G. (2013). Application of Talfīq in Modern Islamic Commercial Contracts. Policy Perspectives, 10(2), 133–159. http://www.jstor.org/stable/42909314

Sufriadi et al. (2021). Ijtihadi models in fiqh studies.  Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Volume 4, No 3, August 2021 , Page: 7149-7160 DOI: https://doi.org/10.33258/birci.v4i3.2568