The terms 'talfiq' and 'takhayyur' have gained prominence in the Islamic legal discourses as tools of legal reasoning in fatawa, especially in Islamic Finance.
With merging of opinions approved, diverging opinions are integrated by a qualified scholar who may employ the method of choice (takhayyur) or draw solutions, employing sub-methods of choice including utilitarian choice (maslahah).
A keen observation of modern Islamic laws reveals that the methods of talfiq and takhayyur are applied at various levels in the modern Islamic legislations.
In such cases of talfiq and takhayyur, the allegiance with the previously adopted school of thought is not abandoned altogether.
It is more appropriate to consider their methodology as takhayyur or ijtihad intiqa'i rather than mere talfiq, which is detestable for many contemporary jurists.
Eclecticism (Takhayyur): Modern trends of ijtihad in Islamic finance also exhibit that sometimes legal rulings are arrived through the method of choice, amongst various opinions of classical jurists.
The Ottoman Family Rights Law, also from 1917, which is a codification of family law that draws its stipulations from all four Sunni schools of law through the reformist eclectic mechanism (takhayyur
), includes a number of stipulations that address the topic of marital maintenance; however, this law refers neither to the use of informants in this context nor to the term shah[a.bar]dat al-istiksh[a.bar]f.
A code could therefore serve as a relatively effective means of restricting the state's ability to use its power of takhayyur
arbitrarily, relative to the default rule of the classical Islamic constitution which theoretically allowed the state and its officials to make case by case decisions on grounds of the public interest.
This selectivity (takhayyur
) among equally legitimate doctrines of Shari'a was already acceptable in principle, but not done in practice.
Indeed, "in most other countries, several schools co-exist, and the integration efforts attempted by the state [are] carried out through the process of takhayyur
(choice, eclecticism), and not through the imposition of any one school." (304)
But even measured by the standards of us[u.bar]l al-fiqh, Hallaq is too harsh on modern Islamic legislation: he dismisses modernist techniques such as takhayyur as "hav[ing] been forbidden in Islamic law, for both the jurists and 'state authorities' (p.
(14.) While al-Sh[a.bar]tib[i.bar] was concerned about the moral consequences of takhayyur, he also recognized that the political consequences of takhy[i.bar]r were of a different order and posed a graver concern.