al-Qawl bima lam yusbaq bihi qawl
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- Dār al-Ḥaḍārah lil-Nashr wa-al-Tawzīʻ
al-Qawl bima lam yusbaq bihi qawl: Dirasah fiqhiyyah taʾsiliyyah tatbiqiyyah ("Adopting an Unprecedented Opinion: A Juristic, Theoretical, and Applied Study") is a contemporary legal treatise by the Saudi scholar Mardi ibn Mashwah al-Anzi examining the validity, legal theory, and historical practice of introducing novel or unprecedented juristic opinions ().
Subject and Scope
The book addresses the tension in Islamic jurisprudence between the theoretical prohibition against introducing novel rulings into established debates and the practical reality of jurists throughout history formulating unprecedented opinions . The author defines an "unprecedented opinion" (al-qawl bima lam yusbaq bihi qawl) as a legal view that was not previously articulated on a given issue . The scope excludes unprecedented rulings formulated for unprecedented contemporary occurrences (nawazil), on which scholars agreed that qualified jurists must provide guidance, focusing instead on new positions adopted regarding issues previously discussed by earlier authorities .
Structure and Method
The work comprises an introduction, a preliminary chapter, four core thematic chapters, and a conclusion:
- Preliminary Chapter (Tamhid): Clarifies the terminology of the title and details the traditional caution and reluctance of early scholars regarding advancing opinions without prior precedent .
- Chapter 1 (Hukm al-qawl bima lam yusbaq bihi qawl): Analyzes the legal rulings on adopting an unprecedented stance. It discusses the scholarly consensus prohibiting the creation of a second opinion where only one was previously established, as well as the three classical positions of legal theorists (usuliyyun) on introducing a third opinion into an issue where two views existed .
- Chapter 2 (Mukhalafat al-nass aw al-ijma'): Evaluates the boundaries of acceptable ijtihad concerning direct textual evidence and consensus, emphasizing that qualified jurists do not deliberately contradict definitive texts or definitive consensus .
- Chapter 3 (Tatbiqat fiqhiyyah): Explores twenty practical juristic applications spanning classical and contemporary jurists—such as the early school founders, Ibn Hazm, and Ibn Taymiyyah—identifying positions they took that had no known prior precedent and tracing the subsequent acceptance or rejection of those views .
- Chapter 4 (al-Qawl bima lam yusbaq bihi qawl bayn al-ta'sil wa-al-tatbiq): Focuses on the contemporary Saudi scholar Muhammad ibn Salih al-Uthaymin as a case study, highlighting specific rulings where he arrived at unprecedented positions based on scriptural evidence despite the theoretical warnings of earlier legal manuals .
The author concludes that while theoretical works frequently cite consensus against introducing subsequent opinions into settled matters, practical legal history shows that nearly every independent jurist (mujtahid) formulated unprecedented views . To balance rigor and legal development, the author recommends restricting such discretion to qualified scholars and submitting novel legal determinations to collective deliberative bodies such as fiqh academies and fatwa councils .
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