First of all both terms ar-Raajih الراجح and al-Marjooh المرجوح, are not a topic which is usually discussed or expanded in general works on Osool al-Fiqh أصول الفقه. But the later has a huge impact on it in applied fiqh namely "pronouncing a fatwa" or "holding a specific view". But before explaining this impact it is worth explaining both terms:
What do both terms mean?
Maybe it is important to say that the whole topic must be regarded from the perspective of an imbalance in a "scale pan" to understand the meaning from an Arabic point of view!
In Arabic if we refer to something raajih راجح we want to express that it is more favorable, likely, preponderant, good enough, more acceptable, more preferable, more weighty ... so this we may favor this thing over another -which we may refer to as marjooh مرجوح- for what ever reasons.
So al-Marjooh usually refers to the opposite of ar-Raajih which is something, less favorable, likely, preponderant, not as good as, less acceptable, less preferable, less weighty or outweighed by something which we'd call raajih.
"Marjooh": what is outweighed by another. "Rujhaan": preponderance, overpowering. Original meaning of "rujhaan": excess. "Raajih": preponderant, powerful. "Tarjeeh": corroborating, preferring, enhancing. (Source)
In this regards we often speak of an act of at-Tarjeeh الترجيح (weighting) which simply speaking means a methodology of making a prioritization or a preference for a certain choice if many options are available or:
In the following where ever the text is presented in Arabic and English, I have translated the original Arabic text in my own words, please take these translations with care!
التَّغْلِيبُ وَالتَّفْضِيلُ، وَأَصْلُهُ مِنَ الرُّجْحَانِ وَهُوَ: الثِّقَلُ وَالزِّيَادَةُ، وَالتَّرْجِيحُ: جَعْلُ الشَّيْءِ فَاضِلًا غَالِبًا، وَمِنْ مَعَانِي التَّرْجِيحِ أَيْضًا: التَّمْيِيلُ والتَّقْوِيَةُ والتَّقْدِيمُ.
Outweighing and preference and it originates from ar-Rujhaan (preponderance) which is: Weight, increase, and at-Tarjeeh (weighting): making something more virtuous, more likely. Among the meanings of weighting is also: inclination (by creating in imbalance), strengthening and preference or prioritization over something else. (Source)
In the fiqh terminology
It is important to note that I'm no expert in Osool al-Fiqh, so my translations here and there might be somewhat blurry or even wrong, I've done my best to translate based on my own understanding.
It refers to a choice between different or even opposite evidences or views which a scholar, a mufti or madhhab (school of jurisprudence) may favor over a second or third etc. view based on a methodology.
Mainly each madhhab has such a choice which would be documented as the established maddhab المذهب المعتمد (see for example What is the "established madhhab" for each of the 4 sunni schools of fiqh? or Levels of obligatoriness of rulings within schools of law) or often referred to as the view which is usually held in fatwas of scholars of a specific madhhab.
From the above it should be clear that this topic is about fatwa choices and ijtihad and when discussed in Osool al-Fiqh, it would rather be discussed in books which expand on how to deal with evidences that seemingly contradict each other in for example chapters on at-Tarjeeh الترجيح (in which the outcome of the analysis of evidences is that an evidence is regarded weightier than another or others) and at-Ta'adul التعادل (in which the outcome of the analysis of evidences is that bot/all evidences have the same level: any of both could be acceptable).
But let's look for more definitions:
What is at-Tarjeeh?
تَقْدِيمُ المُجْتَهِدِ أَحَدَ الدَّلِيلَيْنِ المُتَعَارِضَيْنِ لِقَرِينَةٍ تَدُلُّ عَلَى ذَلِكَ (Source)
The preference of the mujtahid for one of two opposing evidences for a presumption that indicates that.
In other words it means creating a certain classification of evidences by declaring a view or evidence as weaker or stronger than another/others based on a followed methodology of verification and analysis.
And you may read where and how it could be addressed in books of Osool al-Fiqh:
يُطْلَقُ لَفْظُ التَّرْجِيحِ فِي بَابِ أَدِلَّةِ الأَحْكَامِ ، وَبَابِ القِيَاسِ ، وَبَابِ الاجْتِهادِ وَأَنْواعِهِ. وَيَرِدُ فِي كَلَامِ الفُقَهَاءِ وَيُرادُ بِهِ: تَقْدِيمُ مَا عَلَيْهِ أَكْثَرُ فُقَهَاءُ المَذْهَبِ أَوْ الذِي نَصَّ عَلَيْهِ إِمَامُ المَذْهَبِ.
The word weighting is used in the section on evidence for judgments (rulings), in the analogy (Qiyas) section, in the section on ijtihad and its types. It is mentioned in the words of the jurists and is intended to: To present (maybe also show its preference?) what most jurists of the madhhab (school of jurisprudence) are based on, or what the imam of the madhhab stipulated.
وَأَحْيَانًا يَقْصِدونَ بِالتَّرْجِيحِ: تَقْدِيمُ القَوْلِ الذِي تَشْهَدُ لَهُ أَدِلَّةُ الكِتَابِ وَالسُنَّةِ وِإِنْ كَانَ بِخِلَافِ الرَّاجِحِ فِي المَذْهَبِ، وَمِنْ أَلْفَاظِ التَّرْجِيحِ: المَشْهُورُ، الأَصَحُّ، الصَّحِيحُ، المُخْتَارُ، الأَشْبَهُ، وَغَيْرُهَا. (Source)
And sometimes they intend by weighting: to provide opinion, which has evidence in the qur'an and the sunnah, although it might be unlike the more correct in the madhhab, and among the words used in weighting: the famous, the more correct, the correct, the chosen, the alike, and others.
- Al-Marjooh المرجوح in the terminology of fiqh scholars is simply speaking explained as:
The weaker of two opposed pieces of evidence, which is outweighed by the other, and thus it is preferable to act upon the other. (Source)
- And this context we speak of al-Marjoohiyah المرجوحيّة which is:
"Marjoohiyyah" (outweighing) is a characteristic that is proven by evidence. It is the state in which one of two or more opposed pieces of evidence or opinions proves to be stronger and distinct in a way that gives precedence to the adoption and implementation of such evidence or opinion. This task is carried out by the mujtahid to settle conflicting views when it becomes impossible to reconcile them or abrogate either of them. "Tarjeeh" (preponderance) exists between two textual proofs from the Qur’an or the Sunnah, or between two logical proofs like two analogies, or between a textual proof and an analogy. The preponderance of a proof over the other sometimes relies on its level of authenticity, like preferring the collectively transmitted Hadiths to the isolated Hadiths. It might also rely on the type of evidence, like the preponderance of the Qur’an over the Sunnah. Other times, it is based on the denotative power, such as the preponderance of a statement over an action or of a prohibition over a command, and other factors of preponderance. (Source)
Some difference of opinion about the permission to use a al-Marjooh instead of ar-Raajih
There are mainly two different opinions in this regards (see here and in the next pages, in which details on the procedure and methodologies on how to threat to contradictory textual (qur'an, sunnah and all kinds of reports) evidences, contradictory analogy evidences and the contradiction between textual and analogy evidences), I will not display all the content of my source nor the discussion of the evidences of both side or their refutation as far as available:
The majority view is that one must follow the rajih evidence in case of two contradictory evidences. Evidences for their choice are:
- the ijma' of the sahabah () in this, as they've followed:
the prophet's () order "When the two circumcised parts meet, then bath is obligatory." (See for example in Sunan ibn Majah) and left following the statement "Water is for water,'" (as stated in Jami' at-Tirmdihi and Sahih Muslim) instead.
the report saying "The Prophet (ﷺ) was overtaken by dawn in the state of sexual defilement when he was fasting" (Sunan abi Dawod) and left the other saying: " he who is overtaken by dawn in a state of seminal emission should not observe fast." (as in the report of Sahih Muslim)
- The custom necessitates following with the most correct (ar-Raajid), and leaving the (next) more correct (al-Marjooh).
- It doesn't make sense to follow something less correct if we know it is less correct. In other words: if we did not act upon the most correct (ar-Raajih): it is necessary to act on the (next) correct (al-Marjooh). But preferring the preferred over the lesser preferred is logically impossible, so there is nothing left but following the most preferred and correct which is ar-Raajih.
Some scholars however hold the opinion that it is not necessary to follow the raajih opinion, but one is allowed to choose one or leave all together.
Some of their evidences:
They say conflicting evidence does not exceed the conflicting proof, and the weighting is not considered in proofs, so the conflicting evidence is here put in analogy against it, just as the testimony of four people is not outweighing the testimony of the two people, no evidence can be set higher than another.
They also add the statement:
"So take warning, O people of vision." (59:2)
as an evidence saying: Allah has commanded consideration in absolute without detail, so there is no reason for the obligation to act on the most correct (ar-Raajih) without considering the (next) most correct (al-Marjooh).
There's further a discussion whether a weighting is allowed based on the higher amount of evidences:
The majority holds the view that such a weighting is permissible.
The hanafi's say it is not permissible to give preference to the abundance of evidence, rather it is required that the evidence regarded as also correct is a description of the more correct evidence itself, not an independent evidence.
One of their evidences in this regards, is the one quoted above about 4 witnesses vs. 2 witnesses.
Another perspective and more examples
A few rather "clear" examples have already been quoted above.
An interesting source for some examples is this article on IslamOnline in which the apparently unnamed author explained a bit about the theory of the preferred view in case of a scholarly difference of opinion. Note that the following text is a rough translation (a summary of the paragraph) of the text followed by additional details, explanations and references.
First of all he said there's no sacredness in the fiqh views, so after a certain deep analysis one can rather safely refute and reject some of these views or accept them.
As these are results of ijtihaad of which some can be accepted and others can be chucked away as we know the Sahih hadith saying:
"If a judge gives a verdict according to the best of his knowledge and his verdict is correct (i.e. agrees with Allah and His Apostle's verdict) he will receive a double reward, and if he gives a verdict according to the best of his knowledge and his verdict is wrong, (i.e. against that of Allah and His Apostle) even then he will get a reward . (Sahih al-Bukhari and Sahih Muslim)
So ijtihad doesn't mean that one must necessarily come to the or a correct result!
And he gave an example of a woman asking him about the most preferable (ar-Raajih) view on the topic of "Eyebrow hair removal" where she introduced her question giving several contradictory fatwas (permission in general vs. permission if the husband asked for it vs. prohibition in any case). He answered her simply saying well no matter how deep my insight was in the matter I'll give you a fatwa following one of the known views and this will hardly help you find a preference.
Then he explained how such a preference is "established": a scholar would start listing all the scholarly view on a topic and verifying and analyzing them. And try to refute them in order to obtain a preference.
This may mean that he would rely on his Osool or those of his madhhab, for example the hanafi's may reject any hadith that is ahaad vs. a hadith that is muttawatir, the maliki's would reject an ahaad on the following basis:
Is it a statement of the prophet () or a report of something he () has done?
Is it in accordance to the qur'an or the muttawtir hadith they have at hand?
Is there a practical custom of the people of Medina supporting it.
Please note this must be regarded as an example if anything I've said is in contradiction to the Osool of Malik or those of abu Hanifa let me know.
Now according these Osool a Maliki faqih would for example favor a practice of the people of Medina over such a hadith or a Hanafi would reject the hadith at all and apply analogy instead. However a scholar who is rather athari (closer to sunnah and hadith, this must not necessarily mean he is a hanbali or shafi'i or salafi etc.) would consider doing more verification if he would disrespect the Osool of his maddhab or accept the hadith if it appears as authentic to him regardless the known Osool of his madhhab. Another part of the verification is the verification of the hadith circumstances and history too: For example a hadith of abu Hurrairah () in most cases reports something that happened in the last 2-3 years of the prophet's () life, this is a meaningful indication if the contradictory report can be dated as much earlier! So the verification here is in order to explore whether the ruling was not abrogated. Then comes a look into the content and whether the contradiction can be resolved etc. and here madhhabs have different approaches and different orders in these approaches: for example interpretation first or literal meaning first?
Does the wording can be interpreted as general or specific by any means etc.?
At the end the view which this scholar preferred over others will be his "ar-Raajih" view. However somewhere else another scholar actually claimed a different view as his "ar-Raajih" view in this context based on his own methodology or Osool. And so on... So the "ar-Raajih" view of scholar1 might be a "Marjooh" view with scholar2 etc.!
In these choices of scholars whether a scholar is "to some extent independent" or a follower (muqalid) of a or his madhhab play a huge role.
Then the author moved on quoting examples of topics on which there's a scholarly dispute, and in which each side or each maddhab has a clear preference:
- Music: For example Sheikh al-Qaradawi held the opinion that it is permissible in his book فقه الغناء والموسيقى (if the example actually is meant to be true) on the other hand another Sheikh for example al-Albani compiled a book (I think about virtuous of marriage if this is the book which was indicated) in which he presents his evidences and view that music is haram. This topic is discussed since around 1400 years it is known that since at least the 2nd hijri century most scholars are of the opinion that music is haram, however it was practiced in Medina without anybody saying it is and there are known musicians from the time like Ishaaq al-Muwsili and Ziryab, beside the known story that imam Malik wanted to become a singer, but his mother could convince him to study hadith ...
- Men's beard: can it be shaved, cut etc. must it be left grow? Are the evidences to be understood as an order of the prophet() or a personal choice of him () or a custom? See also What is the context of this hadith: "Trim your moustaches and save the beard"?
I'd like to add a third example
- the discussion about reciting the fatihah if the imam was reciting it aloud: there are several madhhabs: one saying the imam is reciting it for the congregation, so his recitation is sufficient, a second saying no one must recite it by following the imam (so following his recitation with the lips, while listening to him), others say no one must listen to the imam and recite it after he has finished.
Further this leads to a discussion whether a person following an imam must recite al-fatihah at all or must it be recited in each raka'a or is one recitation sufficient (and maybe when such a recitation is necessary).
Some related posts:
Salat started later
Can we recite two or more surahs in one rakat when praying?
What are the rules for reading 4 rak'a fard with jamat or alone?