The Etiquette of Juristic Differenc...

Egypt's Dar Al-Ifta

The Etiquette of Juristic Differences

The Etiquette of Juristic Differences


Difference and diversity are universal laws that no sane person can deny or quell even with the good intention of seeking concord and harmony. Confirming their existence, God Almighty says, "If thy Lord so willed, He could have made mankind one people: but they will not cease to differ except those on whom thy Lord hath bestowed His mercy: and for this did He create them… ."

Any attempt to consolidate the religious, political, economic, or social ideas of the people will inevitably fail because it will come in conflict with this firmly established universal law evincing the greatness of the Creator, the Exalted and High and His overwhelming ability over His creation and its diversity.

For this reason, Islam has guided man to a type of jurisprudence that I consider obligatory at present. It is the jurisprudence of disagreement which guides us to the manner of managing this diversity which may, in some of its aspects, be a trove and enrich the cultural accomplishments of humans.

It is not possible to assume that differences [of opinion] bear any relation to knowledge either to its abundance or deficiency or to the existence or non-existence of piety. Differences of opinions existed in the best centuries and between the best of mankind after the prophets and messengers—the Companions of Prophet Muhammad (peace and blessings be upon him). Moreover, this occurred even during the Messenger's lifetime, a case in point being the Companions’ disagreement over the meaning of the Prophet’s words when he ordered them to pray the midafternoon prayer at Banu Quraydha. Hadith scholars and biographers have recorded many points of differences [of opinions] between the Companions (may God be pleased with them). These include:

1-Jurispredential differences of opinions with social manifestations. Examples include the difference of opinion between Ibn Mas'ud and Uthman (may God be pleased with him) on whether to offer the prayer in Mina in its full or shortened form and that between Umar and Ibn Mas'ud (may God be pleased with them all) concerning the marriage of fornicators.

Differences of opinion even arose on what today's seekers of knowledge consider doctrinal matters such as the difference of opinion between A`isha (my God be pleased with her) and Abdullah Ibn Abbas (may God be pleased with him and his father) on whether the Prophet saw his Lord on the night of al-Isra` (the Night Journey).

The important thing is that, in spite of the magnitude of these matters and their societal implications and political ramifications, we do not see anyone who has accused others of corruption, innovation, or disbelief nor that anyone has attempted to reject or doubt their religion or affiliation to Islam.

2-This orientation may be considered by some as political in the customary sense of the word. A case in point is when the Companions differed during the meeting at Saqifat Banu Sa'ada to elect a caliph to succeed the Messenger of God (peace and blessings be upon him). The matter was finally resolved by Umar (may God be pleased with him) who asked Abu Bakr to extend his hand so that he could pay him allegiance and others followed suit. Everyone was satisfied by the consultative assembly's decision and accepted Abu Bakr as caliph.

Another instance is the difference of opinion between the two greatest individuals in the Islamic community after the Messenger of God, Abu Bakr and Umar (may God be pleased with them both) over whether to fight those who apostatized and those refused to pay zakat. This ended with Abu Bakr having the upper hand since he was the ruler who bore the responsibility.

The above examples and others confirm that different opinions are not an end in themselves but an inevitable reality, a universal law, and a human disposition. However, the danger lies in the manner of managing such differences; this is what is lacking in our Muslim countries and between individuals of the community everywhere.

All parties must understand that the bases of this jurisprudence stem from making excuses for the differing parties and from refraining from alienating them or from being self-opinionated since no one has knowledge of the absolute truth. Our great jurists have taught us how to accept opinions that differ from ours and to consider the possibility of their preponderance. Al-Shafi'i (may God be pleased with him) said, "I believe my opinion is right with the possibility that it is wrong. And I believe the opinion of another who disagrees with me is wrong with the possibility that it is right."

Salman Ibn Buraida reported that his father said, "Whenever the Messenger of God appointed anyone to lead an army or detachment, he would exhort him to be mindful of God and to be good to those with him. He would say, 'If you lay siege to a fort and the besieged appeal to you for protection in the name of God and His Prophet, do not guarantee to them the protection of God or that of His Prophet but accord to them your own guarantee and the guarantee of your companions for if you violate the protection given by you and by your companions is better than violating the protection granted in the name of God and His Prophet. And if you lay siege to a fort and the besieged ask you to deal with them in accordance with God’s Command, do not do so in accordance with His Command, but do so at your (own) command, for you do not know whether you will be able to carry out God’s command with regard to them."

I mention this hadith to confirm a very important matter that many of those working in the Islamic field are not aware of, especially when some of them consider their exegeses and understanding of the primary texts are infallible as though they are a revelation from God Almighty and that anyone with a differing opinion will perish. Such a person issues arbitrary accusations, forgetting that jurisprudence and Islamic law are more comprehensive than his own understanding or intellect. For this reason, Ibn al-Qayyim (may God have mercy on him) said, "It is impermissible for one to call his course of investigation ‘ijtihad’ [independent reasoning] when it is not based on a text saying that God has prohibited such-and-such, obligated such-and-such or that this is God's ruling."

Ibn Taymiyya (may God have mercy on him) said, "Many people erroneously attribute what they say to Islamic law. They maintain their position either out of ignorance or error or falsely and deliberately. No scholar is entitled to obligate the people to follow his opinions or a particular school of jurisprudence. On one occasion, Al-Mansur proposed to the imam of al-Medina, Malik Ibn Anas, to promulgate the book Al-Muwatta` in the provinces and states and obligate the people to abide by its rulings. However, Malik refused and said, "O leader of the believers! Do not do this for hadiths and opinions of the [Prophet’s] Companions have reached the people and they have been acting upon them. It is difficult to repudiate what they believe in so let them be and let each state follow what it chooses for itself."

It is important at this point to point out a collection of etiquettes that are to be observed by all parties holding different opinions. The most important of these is equity i.e. identifying with your contender and considering others equal. Ammar (may God be pleased with him) praised such manners saying, "Whoever has three traits combined will have accumulated faith. They are: equity, promoting peace, and charity/spending when money is tight" (recorded in the Sahih of Bukhari).

Such equity necessitates being aware that erroneously ascribing belief to another is of less magnitude than erroneously ascribing disbelief. This means that if a person reckons that another is a Muslim based on apparent actions even if that person is, for instance, a hypocrite, or is not, then this is of less consequence than hastening to describe him as an unbeliever. This protects one from coming under the warning of the hadith which says, "Whoever accuses another of disbelief or says [of another], "He is an enemy of God", when he is not, the accusation will revert to him."

This likewise necessitates that those with different opinions should not object to matters that are subject to ijtihad and to differences of opinion. This was mentioned by Ibn Taymiyya (may God have mercy on him) and is likewise the methodology of orthodox Muslims. He said, “They [scholars] do not consider anyone who exercises ijtihad in all matters without differentiating between primary and secondary issues (usul and furu') a disbeliever. Consequently, whoever is qualified and exerts his utmost to arrive at the purpose of God Almighty is not considered to have sinned but receives either one or two rewards. No sin is ascribed to one who [arrives at a ruling] through ijtihad. Believers should not differ on account of their opinions in jurisprudence, let alone in politics which is a constant cause of dispute.

Equity also requires being cautious not to accuse another of disbelief or even curse him, even if he were of a different sect or one whose opinions implicate disbelief. Imam Ahmed (may God have mercy on him) accused the Jahimiyya sect of disbelief and anyone who maintained the doctrine of the createdness of the Quran. In spite of this, he never accused anyone in particular—neither al-Ma`mun nor anyone else. Rather, he supplicated God for him, asked God to forgive him, and forgave him himself.

Each party is to judge the other based on their apparent actions and God will judge what is in their hearts. The Prophet (peace and blessings be upon him) said, “I have not been commanded to cut open people’s hearts nor search their inner selves.”

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