Juristic Differences in Sharia

Egypt's Dar Al-Ifta

Juristic Differences in Sharia

Juristic Differences in Sharia

Differences among humans are natural, as attested to by the Qur’anic verse: “And from among His signs is the creation of the heavens and the earth, and the variation in your languages and colors. In this are signs for the worlds.” (al-Rum: 22). In addition to differences in languages, colors and ideas, people vary with respect to their intellectual capacities. It is therefore impossible to build a life and establish a web of social relations only between people in agreement and of the same mind, for in that case, there would be no opportunity for interaction, engagement and learning.

The differences of opinion to be found in the shari’a are but a subset of this natural phenomenon. This is what we will be concerned with in this investigation so as to benefit from this phenomenon to the utmost, to capitalize on the advantages of juristic differences- namely that they are a mercy and facility to the umma – and to avoid the harms that result from following one’s whims. In order to do so, we must adhere to the shari’a protocols and etiquettes expected of those who differ, always having a presence of mind fixated on the ultimate goal, and a proper understanding of the matter. In this we have an ideal example in the Prophet (peace be upon him) and his Companions. We must also firmly establish and put into practice the spirit of harmony and unity insisted on by the shari’a, as God instructs us: “Hold fast all you together to the rope of Allah, and do not disunite.” (Aal Imran: 103).
All praise is due to God who made our pure shari’a an ocean from which all of the beneficial sciences flow.

-Entrenching harmony and permitting difference
Islam does not stress anything quite as much as it does the related concepts of monotheism and unity. The former invites to a pure, unadulterated belief in One God; and the latter is the practical reflection of the former. For those whose Lord is One, and whose prophet is one, and whose scripture is one, and whose direction of prayer is one, and the reason for their creation and living is one must by necessity consider themselves to be united. And there are Qur’anic verses which emphasize this: “Verily, this brotherhood of yours is a single brotherhood, and I am your Lord and Cherisher: therefore serve Me” (al-Anbiya’: 92) and “And hold fast, all together, by the rope which Allah (stretches out for you), and be not divided among yourselves; and remember with gratitude Allah's favor on you; for ye were enemies and He joined your hearts in love, so that by His Grace, ye became brethren” (Aal Imran: 103).

The Prophet (peace be upon him), too, has attested to this in numerous hadiths, among which is his statement, “Do not cut off relations with one another. Do not oppose one another. Do not harbor enmity towards one another. Do not envy one another. Be brothers as God has commanded you to be .”

When the Bani Isra’il took to worshipping a calf, the prophet Aaron offered as an excuse for his not speaking out and choosing instead to await the return of his brother, the prophet Moses, that he feared bearing responsibility for disuniting his people. “He (Moses) said: O Aaron! What held thee back when thou didst see them gone astray, That thou followedst me not? Hast thou then disobeyed my order? He said: O son of my mother! Clutch not my beard nor my head! I feared lest thou shouldst say: Thou hast caused division among the Children of Israel, and hast not waited for my word.” (Taha: 92-94). Here we see that Aaron excused himself from sternly opposing his people out of fear of division and disunity.

The scholars have concluded from this that unity and harmony are fundamentals, and secondary considerations are to be sacrificed for their sake. As Ibn Taymiyya said in his collection of Fatawa, “Holding fast to the community and maintaining harmony are from the fundamentals of the religion, and questions subject to differences of opinion are secondary matters. So how can it be that we diminish the fundamentals in order to preserve the inessential? ”

The identity of Islam is essential and cannot be disagreed upon, for it is necessarily known to be part of the religion. The same can be said of matters on which the nation has reached a consensus over the years and around the world. As for other questions, i.e. those subject to ijtihad and uncertainty, it is permitted for a Muslim to follow any school of thought as long as it is put forth by scholars entitled and qualified to perform ijtihad and examine the proofs. We exclude from this those who have not fulfilled the prerequisites and conditions of ijtihad.

Differences of opinion of this sort when they stay within the bounds of the shari’a are in fact a means of enriching the intellectual state of the umma. How else are we to understand the concept of shura (consultation) established by the shari’a except as legislating this sort of healthy debate and difference? As Allah says, “And consult with them upon the conduct of affairs” (Aal Imran: 159).

As well, the Prophet’s life furnishes us with numerous incidents in which he consulted with his companions and listened to them. Never did he consider himself wanting for taking their opinions. This is confirmed by the story of the prisoners of Badr. As related in Sahih Muslim on the authority of Ibn ‘Abbas, who said, “When the prisoners were taken, the Prophet (peace be upon him) said to Abu Bakr and ‘Umar, ‘What do you think should be done with these prisoners?’ Abu Bakr said, ‘O Prophet of Allah, they are our cousins and tribesmen. I think that we should take a ransom for then, thereby strengthening ourselves over the disbelievers. Perhaps this will guide them to Islam.’ Then the prophet asked, “What do you say, O Ibn al-Khattab?’ I said, ‘By God, O Messenger of Allah, I do not hold what Abu Bakr does. Rather, I prefer to strengthen ourselves by striking their necks. Let ‘Ali be strengthened by striking down ‘Aqil, and let me be strengthened by so-and-so (a relative of his). For these are the leaders and heads of the disbelievers.’ The Prophet liked Abu Bakr’s suggestion, and not mine. But thereafter, Allah revealed the verses: “It is not fitting for a prophet that he should have prisoners of war until he hath thoroughly subdued the land. Ye look for the temporal goods of this world; but Allah looketh to the Hereafter: And Allah is Exalted in might, Wise. Had it not been for a previous ordainment from Allah, a severe penalty would have reached you for the (ransom) that ye took. But (now) enjoy what ye took in war, lawful and good: but fear Allah: for Allah is Oft-forgiving, Most Merciful .” That is, the verses confirmed the advice of ‘Umar.

Notice here how the Prophet (peace be upon him) consulted with his companions with an open heart and mind, and found no reason not to implement their suggestions if he found them to be more appropriate and correct.

Knowledge therefore must be accompanied by the ethics and manners appropriate to it. It is improper to turn juristic opinions and schools of thought, all of which are subject to debate and discussion, into reasons for intellectual and political partisanship.

Scholars have warned us against this, as for example Ibn al-Qayyim: “Differences of opinion among people are inevitable and necessary due to the differences in their understanding and intelligence. What is detestable, however, is enmity for one another. So, if the differences are such that they do not lead to taking sides or creating distance between people, and each party intends by their position only obedience to God, there is no harm. Indeed, it is a matter which is necessary for human development. If the fundamentals are the same, and the end goal is the same, and the path to it is the same, there will hardly ever be differences of opinion, and what does occur will not be harmful as we know from the case of the Companions. For, the fundamentals on which they based themselves were one, the Book of God and the sunna of his Prophet; and their intentions were one, obedience to God and His Prophet; and their path was one, looking to the Qur’an and the sunna and giving it precedence over every opinion and analogy and preference and political policy .”

Ibn al-‘Arabi has said, “A scholar will not mature until he rises above scholarly partisanship.” It is also said that a man wrote a book on differences of opinion, and Imam Ahmad said to him, “Do not name it ‘differences’ (ikhtilaf), but rather ‘The book of spaciousness .’”

Certainly, there are many legal matters which are disagreed upon. For example, the issue of sighting the new moon in order to establish the fasting of Ramadan, or the Eid Festival. This is an issue that must not be given outsized importance, greater than the millions of opinions on which there are disagreements.

The Lawgiver has connected fasting to the sighting of the new moon, saying “Whosoever witnesses the month, fast.” (al-Baqara; 185) The Prophet (peace be upon him) said, “Fast upon its sighting. And terminate your fasting upon its sighting. And if it is overcast, complete the thirty days of Sha’ban .”

The Muslims have unanimously agreed that attempting to sight the moon for Ramadan is a communal obligation and not an individual one. As such, based on the practice of the Prophet, it is sufficient that some of the Mulims seek the new moon. There is however a disagreement among the scholars on whether or not we should take into account the difference in horizons amongst the various parts of the world. According to Hanafi law, it should not be taken into consideration. So, if a sighting is established in a country in the East, for example, all countries, Eastern and Western, are to adhere to it. This is because of the generality of the address in the hadith, “Fast upon its sighting.” Other Hanafi jurists have held that the differences among the countries with respect to their horizons is to be taken into account. The relied-upon fatwa in the madhhab, however, is the first opinion.

In Maliki law, there are three opinions. The first is that there is no consideration given to the different horizons, whether the countries in question are close to each other or not. The second is that they are to be considered as follows: if a sighting is established by a ruler or judge of a given area, his judgement is not to be generalized except for places which fall under his constituency. The third is the differences in horizons are of consequence for far-away lands. The fatwa here, and the dominant opinion (mashhur) in the school is that the differences in horizons are not to be taken into account.

In Shafi’i law, if the moon of Ramadan is sighted in one country and not in another, they are to be considered as one if they are close to one another. There is no difference of opinion on this. If they are far from each other, there are two well-known positions. One says that they may not fast, and the other says they must. The former is more correct.

In Hanbali law, if the people of one country sight the moon of Ramadan, all countries must fast. Zaydi and Imami law similarly differ on this matter. The Hadawiyya and Imam Yahya of the Zaydis say it should be taken into account, so if it is seen in one land, the ruling does not necessarily apply to a land with a different horizon. Whereas, al-Mahdi and some of the Zaydis generalized the testimony of a moon sighting to all lands. Al-Shawkani says this is the opinion we should rely upon, and a group of the Imamis agreed with him .

Shaykh ‘Abdullah bin Bayyah says in his fatwa. “The matter is capacious. If they desire, they may fast with Saudi Arabia or any other country that has legally established a sighting. Alternatively, they may seek the moon in their own country, or in a place close to their country. We have said that the large distances between lands prevent us from relying on sightings in other parts of the world, even when we take telescopes and astronomy into account. But these days, the science has developed greatly, to that point that some say that we can send a needle out into the atmosphere and be able to track it. So what of the new moon which is born and becomes visible two or three hours after conjunction, depending on its visibility at the given place and time?

So, the matter is expansive, and we ask the Muslims not to dispute among themselves about it. If someone follows a person who says that the distance between regions prevents them from following one another in this matter, he has followed a strong opinion. Similarly, if someone follows the opinion that says that a sighting in a given land applies to other lands, this is also a good opinion. And if someone seeks to draw upon and investigate astronomical calculations so that he may establish or confirm his sighting, this is a new type of proof that may help greatly in deciding on one opinion over another. The exception to this is if the moon was sighted definitively, while astronomical calculations claim it cannot be seen – in this case, we are not to rely on astronomical calculations. In this, I oppose the European Council of Fatwa and Research which holds that we should rely on calculations even in such a case. If a large group of people has seen the moon, we give priority to their sighting over the astronomical calculations.

This is a summary of what I hold on this matter, and I advise all to refrain from division and excessive disputation. Instead, they should confer among themselves and agree on one of the methods we have mentioned, for all of them can be found in the books of the people of knowledge.”

Indeed, this sort of disagreement on probabilistic matters was present even among the Companions. As Imam al-Qasim bin Muhammad bin Abu Bakr al-Siddiq says, “Allah has indeed granted us a great benefit as a result of the differences among the Companions of the Prophet (peace be upon him) in their actions. None of them would act in a given way without seeing that there was expansiveness in the matter and that someone better than them acted in the same way.”

The Imam al-Sha’rani relates in his book Al-Mizan al-Kubra that the Shaykh al-Islam Zakariyya al-Ansari said, “The fountain of the shari’a is like an ocean – no matter which side you take water from, it is but one .” Similarly, it is related that the Imam Ibn ‘Abdul Barr used to say, “No report has reached us about any of the Imams demanding that their students adhere to a specific school, and dismiss the validity of opposing opinions. Rather, what is transmitted about them is their permitting people to act upon the fatwas of various Imams, for all of them are upon the guidance of their Lord .”

Juristic differences are about diversity and multiplicity, not about dissension and discord
Shaykh ‘Abd al-Wahhab al-Sha’rani has a relevant commentary on this topic. In his book, he divided all the differences amongst the Imams of the madhhabs into two categories: “leniency” and “strict adherence”. He says,

“All of the Imams of the Muslims are at all times upon the guidance of their Lord. And whoever has not come to this conclusion through inspiration or direct witness, must believe in it out of faith and submission.

In the same way that it is impermissible for us to castigate the different laws brought by the prophets, it is impermissible for us to castigate what the mujtahid Imams arrived at through ijtihad and their judgment (istihsan)... So, you should know with certainty that the pure shari’a has come with two levels of judgements on every disagreed-upon issue: “leniency” and “strict adherence”, not only one level as some of the muqallidin claim. For this reason, they were led to contradictions, and not simply disagreements. The reality is that there is no contradiction, for all of the shari’a can be reduced to either a command or a prohibition. Each of these, in turn, can be divided into two levels: “leniency” and “strict adherence.” As for the fifth category of rulings, i.e, the permissible, it partakes in both sides – it may be deemed commendable and encouraged if it is accompanied by a good intention, and disliked if accompanied by a corrupt intention.

To further explain this, we may point out that there are Imams who took a linguistic imperative to denote obligation, while others took it to mean mere recommendation. Similarly, some of them took the linguistic prohibitive to mean outright prohibition, while others took it to mean that it was simply disliked. In each of these levels, we can locate people – those who are strong in faith and body are addressed at the level of commitment and strict adherence, while those who are weaker are addressed at the level of dispensation and leniency. This is alluded to by the general address in the Qur’an: “So keep your duty to Allah as best ye can” (al-Tahabun: 16). As well, we have the saying of the Prophet, “If I command you about something, undertake it to the best of your ability.”

As such, the strong person is not permitted to descend to the level of dispensation while he is able to commit to the higher level, for this would be playing games with religion. Likewise, the weaker person is not expected to rise to the level of higher commitment due to his incapability of doing so. Of course, if he takes it upon himself and does so, we do not get in his way except if there is a shar’i reason .

He then went on to clarify that the disagreements he is referring to are only on discrete legal judgments and not on fundamentals: “He has prohibited disagreement on the fundamentals of the religion, as for example his saying, ‘He hath ordained for you that religion which He commended unto Noah, and that which We inspire in thee (Muhammad), and that which We commended unto Abraham and Moses and Jesus, saying: Establish the religion, and be not divided therein.’ (al-Shura: 13). Understand this for it is priceless. And beware of obscuring matters by conflating disagreements on subsidiary matters with disagreements on fundamentals. To do so would be to enter into ruin. Indeed, the sunna is a judge for us, and we clearly understand from the statement of the Prophet (peace be upon him) that the disagreements of this umma are a mercy. Indeed, the Prophet considered these one of the distinguishing characteristics of his umma by saying that Allah “has made the differences of my nation a mercy, though it was a cause for punishment for those before us .”

Something that supports this reading is the famous legal principle articulated by Imam al-Shafi’i: “Acting on two separate hadiths or opinions by interpreting them such that they apply to different circumstances is better than discarding one of them.”

An example of these two levels can be found in the report from Ibn ‘Abbas who said that the Prophet (peace be upon him) said: “The angel Gabriel lead me in each prayer twice ... He lead me in the ‘isha prayer when the redness of the sky dissipated, then the fajr prayer when eating and drinking were no longer allowed for the fasting person, then the zuhr prayer when the shadow of everything was equal to its actual length, then the asr prayer when the shadow of everything was equal to two times its actual length, then the maghrib prayer when the fasting person broke his fast. The next day, he led me in the ‘isha prayer at the first third of the night, and the fajr prayer shortly before sunrise. He then turned to me and said, ‘O Muhammad, this is the time of prayer observed by the prophets before you, and the period for prayer is that which is between these two timings .” That is to say, the time for ‘isha is between when the sun disappears and the end of the first third of the night.

However, another hadith on the authority of Ibn ‘Abbas has it that the Prophet (peace be upon him) said “The time for ‘isha prayer is until dawn.” Also, A’isha said, “The Prophet delayed the ‘isha prayer one night until most of the night had passed, and the people in the mosque fell asleep. Then, he went out and lead them in prayer, and said “This is part of the time for the prayer, so that I don’t place an undue burden on my community .”

The first hadith relates to strict adherence in suggesting that the time for prayer expires after the first third of the night, while the second hadith relates to leniency in allowing it to be delayed until dawn.

A second example is that which is related on the authority of A’isha who said that the Prophet (peace be upon him) said, “Whoever dies without having fulfilled all their fasts, let his friend fast on his behalf .” This is in contrast to the hadith related by Ibn ‘Abbas: “No one may fast on another’s behalf; instead he may feed the needy on his behalf.” As well, there is another hadith from A’isha who said, “Do not fast on behalf of your dead; instead feed the needy.” The first hadith is to be taken as leniency, permitting a dead person’s fasts to be made up by someone else. The second hadith is about strict adherence, not permitting fasts to be made up by another, but allowing the needy to be fed in its stead. It may be that the opposite is more appropriate for rich people, because feeding people is easier for them than fasting. Again, we return to the two levels of leniency and strict adherence.

What we understand from the above discussion is that disagreements among qualified scholars and mujtahids on matters which permit disagreement are a great mercy from God upon the Muslims. We must not allow what is in reality a mercy to become a cause for the quarrels and arguments we see these days in the intellectual field. This manner of disputation is a victory of the ego over the truth; it is a disease of which true knowledge and sincere knowledge seekers are innocent.

The causes of disagreement
The reasons for disagreements among the Companions, Followers, and the great Imams are many. We may mention among them:
1-That a hadith reaches one of them and not another. In that case, the person without knowledge of the hadith may base his ruling on the apparent meaning of a verse, or another hadith, or an analogy, or based on the presumption of continuity of a previous ruling. Sometimes, these may accord with the unknown hadith; other times, they may be in opposition to it.

For example, Abu Bakr al-Siddiq, despite his long attachment to the Prophet (peace be upon him), when asked about issues of inheritance, was unaware of any text from the Qur’an or sunna dealing with the matter. As Qabisa b. Dhu’ayb says in a hadith. “My grandmother went to Abu Bakr al-Siddiq to ask him about her inheritance. He replied, ‘There is nothing in the Book of God relating to your query, nor do I know anything in the sunna of the Prophet for you. So return home so that I may ask people.’ Then, he asked the people, and al-Mughira bin Shu’ba said, ‘I was in the presence of the Prophet (peace be upon him) when he gave her a sixth of the inheritance.’ Abu Bakr asked, ‘Was there someone else with you?’ Muhammad bin Maslama then stood up and confirmed what al-Mughira bin Shu’ba had said. So, Abu Bakr carried out this ruling for her .” Note that neither al-Mughira bin Shu’ba nor Muhammad bin Maslama had spent more time with the Prophet than Abu Bakr. However, even a person’s vast knowledge of the hadiths of the Prophet does not permit definitively ruling out others.

Another example is that which was related by ‘Ubayd bin ‘Umayr who said that, “It reached A’isha that ‘Abdullah bin ‘Amr was ordered women that when they washed they should undo their hair. She said, ‘How strange that Ibn ‘Umar orders women to undo their hair when they wash it. Why doesn’t he order them to shave it all off? I used to bathe with the Prophet from one vessel, and I do not unbraid more than three braids from my hair .’”

Yet another example has to do with the difference among the Companions as to where to bury the Prophet (peace be upon him) when he died. Ibn ‘Abbas said, “The Muslims differed about where they were supposed to dig a grave for him. Some said he should be buried in his mosque, while others said he should be buried with his Companions. Then, Abu Bakr said, ‘I heard the Prophet (peace be upon him) say, “No prophet has been seized [by death] except that he was buried where he was seized.”’ So, they raised the rug on which the Prophet had died, dug him a grave there, and buried him in it .”

2-That a hadith reaches one of the Imams in a manner which does not satisfy his requirements for its being a proof, whereas it satisfies the requirements of another. So, the latter acts upon the hadith, because for him it is a valid source because it comes to him through a continuous transmission. The former, however, does not act upon the meaning of the hadith for some reason or another. It could be because he does not consider the chain of transmission acceptable due to an unknown or unreliable narrator, and so cannot reliably attribute the hadith to the Prophet; or, because of the weak memories of some of the narrators; or, because the chain is broken; or because he attached conditions to acting upon a singularly-transmitted hadith that were not stipulated by others. As a result, their opinions may differ for any of these reasons.

3-That they hold the Prophet to have performed a specific action for the purpose of drawing nearer to Allah, whereas others considered it to have been merely permissible. An example of this is the opinion of the majority that raml (walking quickly) during the circumambulation of the Ka’ba is a sunna, while Ibn ‘Abbas held it to be merely permissible because the Prophet did it for a specific reason. Ibn Tufayl said, “I asked Ibn ‘Abbas, ‘Have you seen this practice of performing raml for three circuits, and walking normally for four circuits? Is it a sunna? Your people claim that it is.’ He replied, ‘They are both correct and wrong.’ I replied, ‘What do you mean they are both correct and wrong?’ He said, ‘The Prophet came to Mecca and the polytheists made fun of them, saying that Muhammad and his Companions are unable to circumambulate the Ka’ba. They were jealous of him. As a result, the Prophet ordered them to perform raml for three circuits and walk normally for four .’”

4-That the hadith reached him, and he affirmed its validity, but then he subsequently forgot it. This occurs in both the Qur’an and the sunna. An example is the famous hadith on the authority of Sa’id bin ‘Abd al-Rahman bin Abzay on the authority of his father, that a man came to ‘Umar and said, “I became ritually impure, but did find any water.” He responded, “Do not pray.” Then, ‘Ammar said, “Do you not remember, Commander of the Faithful, when we were part of a squadron, and we became ritually impure and could not find water. You did not pray, but I used dust and prayed. The Prophet said, “It would have been sufficient if you struck your hands on the ground, blew on them, and wiped your face and hands with them.” ‘Umar said, “Fear god, ‘Ammar.” He said, “If you wish, I will not speak about it.” ‘Umar said, “We entrust you with what you have been entrusted with .”

5-Allah’s permission to the Prophet and the umma to engage in ijtihad if there is no text, or if there is a need for it. Indeed, the Companions engaged in ijtihad in the presence of the Prophet, as we know from the story of the two Companions who performed tayammum and thereafter found water. One of them repeated his prayer, and the other did not. On the authority of ‘Ata bin Yasar on the authority of Abu Sa’id al-Khudri who said, “There were two men on a journey. When the time for prayer came, neither of them had water, so they performed tayammum (dry ablution) on a pure surface and prayed. Thereafter, they came across some water while the time for prayer had not expired. One of them performed the ablution and repeated his prayer, while the other did not. Then they came to the Prophet (peace be upon him) and related the story to him. He said to the one who repeated his prayer, ‘You have followed the sunna and your prayer is valid.’ And he said to the one who performed the ablution and repeated his prayer, ‘You have two rewards .’”

There are also other examples that make clear the manner in which the Prophet trained his Companions to perform ijtihad by understanding the reasoning behind issues, attempting to derive rulings from general texts, and understanding those texts. He did this so that they may be examples for those who come after them.

6-The differences in their understanding of the texts before them. Or, alternatively if there is no text, the differences in their ijtihad. The most famous example of this is related by Nafi’ bin ‘Abdullah, who said “The Prophet (peace be upon him) called out to us on the day we departed form al-Ahzab, ‘Do not pray the zuhr prayer until you are in Banu Qurayzah.” Some people were worried about the time for prayer expiring, so they prayed before Banu Qurayza. Others said, ‘We will not pray even if the time passes, in obedience to the command of the Prophet.’” Nafi’ went on to say, “He did not rebuke either of the two camps .”

Since the Prophet did not reprimand either of the two camps, it is upon the jurists to follow this sunna, making matters expansive for people and refraining from re-entering into a domain that has been settled by the Prophet himself.

7-A lack of knowledge of the meaning of the texts.

A-Sometimes this is due to the presence of a strange word in the hadith, such as the words muzabana or muhaqala

B-Sometimes, this is because a word is used both literally and figuratively, and so they differ about how it should be used in a given case. An example of this is the imperative and prohibitive. It is known that their default uses are as follows: an unconditioned imperative denotes obligation, and an unconditioned prohibitive denotes prohibition. However, both have been used for meanings other than these. The imperative sometimes means recommendation as in the verse, “And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if ye know any good in them” (al-Nur:33); and the prohibitive is sometimes used only for guidance, such as “O ye who believe! Ask not questions about things which, if made plain to you, may cause you trouble” (al-Ma’ida:101). So, the jurists may disagree on the nature of the rulings as a result of these linguistic considerations.

C-Sometimes, this is because a word is homonymous , or unclear, or at times literal and at other times figurative. So, the jurist adopts what seems more appropriate to him, even though what is meant is the other meaning. An example of this is the jurists’ disagreement over the word qur’ in the verse, “Divorced women shall wait concerning themselves for three quru’” (al-Baqara: 228). This word means both purity and menstrual period. So, the jurists disagreed as a result on the waiting period of a divorced woman – is it to be considered three periods of purity or three periods of menstruation? There are two positions.

D-Sometimes, this is because the meaning of a text is not obvious. There are many ways to understand words, and because people are of different capacities, they may not all be capable of arriving at the true meaning of a given word. Understanding language well is in fact a gift and favor from God.

1-Conflicting proofs and choosing between them. This comes in many forms. It could be due to apparent conflicts between:
a-different verses in the Qur’an
b-the Qur’an and the sunna
c-the Qur’an and scholarly consensus (ijma’)
d-the Qur’an and analogy (qiyas)
e-different hadiths/sunna
f-the sunna and scholarly consensus
g-the sunna and analogy
h-between two ijmas
i-between ijma’ and qiyas
j-between two analogical deductions

An example of (a) is with regards to two verses related to oaths. The first is “Allah will not take you to task for that which is unintentional in your oaths. But He will take you to task for that which your hearts have garnered” (al-Baqara: 225). The second is, “Allah will not take you to task for that which is unintentional in your oaths, but He will take you to task for the oaths which ye swear in earnest” (al-Ma’ida: 89).

An example of (b) is with regards to the apparent conflict between the verse “Read from it what is easy for you” (al-Zumar: 20) and the hadith of ‘Ubada bin al-Samit that the Prophet said, “There is no valid prayer for he who does not recite the Opening of the Book [i.e., al-Fatiha] .”

2-Scholars differing about the permissibility of relying on certain types of proof. These include istihsan (juristic discretion/equity), istishab (the presumption of continuity); al-masalih al-mursala (public welfare); sadd al-dhara’i (cutting off the means to evil), etc.

For example, some mujtahids permit taking into account considerations of public welfare not mentioned in revelatory texts. Those who do believe that if a mujtahid deems there to be benefit in certain matters, he is entitled to judge in its favor on the basis that the Lawgiver only puts forth rulings in the interest of people’s welfare.

3-A scholar’s belief that a given text is not to be taken for its literal or obvious signification because of some other proof, for example the specification of general statements, the restriction of unconditional statements vs. restricted ones, or a literal statement that should be taken figuratively.

4-Differences in undertaking qiyas (analogy). Qiyas is the application of the ruling of one case to another based upon a common element . Scholars may differ on deciding whether or not an element is common between the two cases. As a result, their positions on the cases in question may well differ because they are based on this method of analogy.

5-Differences due to abrogation (naskh ) or a claim of abrogation. An example is the abrogation of the fasting on the day of ‘Ashura (mentioned in the sunna) by the fasting of Ramadan. A verse says, “The month of Ramadan, in which was revealed the Qur’an: a guidance to mankind, and clear proofs of the guidance and criterion. So, whosoever among you witnesses the month, let him fast.” (al-Bqara: 185). And it is related that A’isha (may God be pleased with her) said, “Ten sacred things periods were revealed, and five were abrogated.” The scholars differed in accordance with the claim of abrogation in one of the texts and not in the other.

6-The geographical dispersion of the Muslim community into different cities as a result of the Islamic conquests and the spread of the Islamic message. This dispersion meant that the Imams encountered new environments and were confronted by novel customs, traditions and practices, previously unknown to the Arabs. As a result, their opinions differed due to their different contexts, as well as their differing levels of knowledge, ability to understand the objectives of the shari’a and deduce rulings in line with them. This is matter recognized by the scholars, and expressed in the maxim that “fatwas change as a function of the changes in peoples, time periods, places, and circumstances.”

There is no doubt that if this occurred during the early generations, there is good reason to think that it occurred to a greater extent, and on a larger scale among later jurists. This is because they were not granted the opportunity to see and hear the Prophet directly as the Companions were. So, it is no surprise that the differences among them were greater.

The Prophet (peace be upon him) would point out the etiquettes of disagreement when he needed to. Narrated Ibn Abi Mulaika: Once the two righteous men, i.e., Abu Bakr and 'Umar were on the verge of destruction (and that was because): When the delegate of Bani Tamim came to the Prophet, one of them (either Abu Bakr or 'Umar) recommended Al-Aqra' bin Habis At-Tamimi Al-Hanzali, the brother of Bani Majashi (to be appointed as their chief), while the other recommended somebody else. Abu Bakr said to 'Umar, "You intended only to oppose me." 'Umar said, "I did not intend to oppose you!" Then their voices grew louder in front of the Prophet whereupon there was revealed: 'O you who believe! Do not raise your voices above the voice of the Prophet..a great reward.' (49.2-3) Ibn Az-Zubair said, 'Thence forward when 'Umar talked to the Prophet, he would talk like one who whispered a secret and would even fail to make the Prophet hear him, in which case the Prophet would ask him (to repeat his words) ."

In addition Abu Huraira narrated: A bedouin urinated in the mosque, and the people rushed to beat him. Allah's Apostle ordered them to leave him and pour a bucket or a tumbler (full) of water over the place where he has passed urine. The Prophet then said, " You have been sent to make things easy (for the people) and you have not been sent to make things difficult for them ."

In summary, we can conclude that there are specific, detectable reasons for juristic differences. It is important to highlight these so that we may take advantage of the benefits of this expansive manner of understanding the shari’a.

-Principles for dealing with disagreement
The scholars of the shari’a have established some important ground rules for dealing with disagreement. They restricted excessive disputation between the parties in an effort to regulate their debates, to organize their priorities, and to correct their intentions. Basing themselves on the shari’a texts, they strove to ensure that their disagreements do not constitute mere partisanship or simply following their whims and desires.

1. Opinions on disagreed-upon matters are not to be dismissed; only variant opinions on agreed-upon matters may be rejected

According to this principle, neither of the parties to the disagreement may dismiss the importance and the characteristics of the other’s thought. Nor may he deny the other’s particular positions as long as they do not contradict unanimously agreed-upon considerations. However, there are circumstances in which the scholars have permitted rejecting variant opinions so as not to make a game of the matter.

i) If an opinion contradicts a central principle. If this opinion has no legitimate evidence, it is appropriate to protest against it, and reject anyone who rejects it.
ii) If the case is brought before a judge, and he rules according to his belief. He is not permitted to rule contrary to his belief.
iii) If there is a right associated with this denial of a belief. An example is a man who disallows his wife from drinking nabidh, even though she believes in its permissibility .

Al-Zarkashi says in his Al-Manthur fi’l-Qawa’id: “Opinions may only be rejected when they are to do with a matter that is agreed upon. There is no rejecting opinions on matters which are subject to disagreement and differences of opinion. For, every mujtahid is correct. Or, rather, one of them is correct, but we do not know which. There were always differences among the early Muslims in legal matters, but none of them rejected the opinion of another on matters which were subject to ijtihad. They only denied that which directly contradicted a text or a definitive consensus or an obvious analogy.

2. When a person encounters a matter upon which there is a difference of opinion, he may follow the one who deems it permissible.

This is a very important principle in the context of people’s lived reality. The diversity of solutions available to someone confronted with a problem permit him to adopt the one most appropriate to his situation, for this religion is one which engages the reality of people’s lives. As Allah says, “Allah wants to make things easy for you, not difficult.” (al-Baqara: 185). Similarly, the intent of the shari’a is to eliminate hardship: “He has imposed no difficulties on you in religion” (al-Hajj: 78). As well, the Prophet (peace be upon him) has said, “You have been sent to facilitate things for people, not to make them difficult.” It is no secret that there is of course great difficulty and hardship in expecting all people to adhere to one position, especially given their particular circumstances, understandings, needs capabilities, and particular crises.

3. It is commendable to find a way out of the difference of opinion

Al-Suyuti says in al-Ashbah wa’l-Naza’ir, “Finding a way out of a difference of opinion is commendable.” There are innumerable examples of this, but we may simply mention the encouragement (istihbab) to rub when cleaning oneself, and the disliking (karaha) of a person praying alone in a row during congregational prayer. These are both ways of escaping the disagreements of those who considered these invalid.

Al-Zarkashi says in his book al-Manthur fi al-Qawa’id, “The first point with regards to differences of opinion is that it is commendable to find a way out of it by avoiding that which some (though not all) have deemed to be prohibited, and performing that which some (but not all) have deemed to be obligatory.”

Some of the scholars say that this principle is not universal; rather there are different types of differences of opinion:

i. Some deem a certain action prohibited, while others deem it permissible. It is best to get out of this difference by refraining from it.

ii. Some deem a certain thing obligatory, while others deem it merely praiseworthy and encouraged. In this case, it is best to perform this action.

iii. A disagreement over the legitimacy of an action, such as reciting the basmala as a part of al-Fatiha (the opening chapter of the Qur’an). It is disliked according to Malik, and obligatory according to al-Shafi’i. Another case is that of performing a prayer during an eclipse in the manner related in the hadith. It is a sunna according to al-Shafi’i, but Abu Hanifa denied this. In such cases, performing the action is better.

The criteria here are as follows: If the principle behind the variant opinion is extremely weak, it is not to be considered, especially if contradicts a related judgment. On the other hand, if the proofs are similar such that the variant opinion is not so far off, in such a case one should find a way out of the disagreement, out of cautiousness that the truth could rest with either of the opposing positions .

It is necessary to promote these principles of interaction and to understand them properly in order to make clear that the realm of probabilistic matters is one of mercy, and not of punishment, excessive disputation or internecine fighting. It exists only so that the religion may be light, easy and spacious for people, because Allah wishes it to be a universal religion that address people of all times and places.

The illustrious history of the Companions and Imams
Just as the Companions and the Followers before them, the Imams differed on speculative matters. The person who pays attention to the history of these forebears finds that the goal of their disagreements was always to expend every effort to arrive at the truth, and not to follow their whims and desires, nor to pursue disagreement for its own sake. Rather, their behavior was characterized by wisdom and excellent character even when they did not agree. Indeed, Imam al-Shafi’i would insist that “we remain brothers though we may disagree on some matters.”

The Rightly-guided Caliphs set the best example of this character. It is related about ‘Umar bin al-Khattab that he gave a sermon one day, limiting what men should give to women, citing the practice of the Prophet who would give no more than a specific amount. A woman then stood and say, “O ‘Umar, you have deprived us of what God has given is. Does not Allah say, ‘But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, Take not the least bit of it back’ (al-Nisa’: 20).” ‘Umar responded, “This woman is correct, and ‘Umar has erred. ”

A similar hadith is narrated from Abu al-Duha on the authority of Masruq, who said, “A scribe once wrote a letter for ‘Umar which said, ‘This is what Allah holds.’ ‘Umar scolded him and said, ‘Write instead this is what ‘Umar holds. If it is correct, it is from God. If it is incorrect, it is from ‘Umar .’”

Here is a case where ‘Umar took the advice of ‘Ali and felt no embarrassment in acting upon his legal position, though he was the leader of the Muslim community. This makes clear the generous character and abundant ethics which graced the Companions. It also shows that their main preoccupation was not having their opinions emerge victorious, but rather it was clarifying the shari’a, acting properly upon it, and arriving at the truth no matter what.

Another example is about Abu Bakr, on the authority of Sha’bi, who said, “Abu Bakr was asked about the word kalala. He said, ‘I will give you my opnion. If it is correct, it is from God. And if it is incorrect, it is from me and from Satan. I believe it to mean ‘that which is free of both child and father.’ When ‘Umar succeeded him, he said, ‘I would be ashamed before God to reject anything Abu Bakr said .’”

Similarly, it is related on the authority of ‘Abdullah b. ‘Utba ibn Mas’ud, that a man married a woman, but died before consummation. He had not set a dowry for her, so the people disagreed about it for a month or so, and then came to Ibn Mas’d to say that he must pronounce on the matter. He said, ‘I rule that she was to be given a dowry similar to women of her status, no more no less; that she should get her share of the inheritance; and that she should observe the waiting period. If I am correct, it is from Allah. If I am wrong, it is from myself and from Satan, and God and His Prophet are innocent of my mistake.’ Then, a group from the Ashja’ stood up, among them al-Jarrah and Abu Sinan, and said, ‘We bear witness that the Prophet of God ruled similarly about one of our women, Barwa’ bint Washiq, whose husband was Hilal bin Murra al-Ashja’i.’ Ibn Mas’ud became extremely happy that his judgment agreed with that of the Prophet (peace be upon him) .”

Perhaps the best example of the etiquettes and manners of disagreement is the message sent by the jurist and imam of Egypt, Layth bin Sa’d, to imam Malik of Medina. He presented therein his point of view on the positions of Malik and his disagreement with them, in a highly civilized way. He said, “In the name of God, The Compassionate, the Merciful. From Layth bin Sa’d to Malik bin Anas, peace be upon you. I praise God, other than Whom there is none worthy of worship. To proceed: May God forgive us and grant us the best of dealings in this world and the afterlife. I have received your letter, in which you mention your good condition. This makes me happy. May God always keep you in this state, and aid you in thanking and praising Him, and increase you in His Goodness ... It has reached you that I have pronounced fatwas on matters that go against the positions of a group of people among you [in Medina] .

Layth bin Sa’id went on to mention in his letter the reasons for the differences between him and Imam Malik (may God have mercy on them both) with regards to the authoritativeness of the practice of the people of Madina. He showed that many of the early Companions, after being trained by the Prophet, set out to both the East and the West, struggling in accordance with what they learned from the Qur’an and the Prophet’s sunna. He also made clear that the Followers differed on a number of things, as did those who came after them.

He then cited examples of issues on which he disagreed with Imam Malik: joining prayers on a night of rain, judging in agreement with a witness and an oath (instead of two witnesses), delaying the payment of the dowry until the couple divorces, the format of the prayer for rain, and others. At the end of his letter, he said, “I have left out many things that resemble these. I prefer that Allah grants you success and a long life. I hope this for the people that they may benefit from it, and I fear for them if they lose you.”

It is related that the Rightly-guided Caliph ‘Umar bin ‘Abd al-‘Aziz would say about the disagreements among the Companions, “What pleases me about the Companions of the Prophet is that they differed with each other, for if they hadn’t there would be no dispensations for us.”

Notice how these Imams gave us these wonderful examples to show us that diversity is necessary and that disagreement is natural, and that accepting this is not enough, but that we must respect our opponent’s thoughts, and consider them as enriching the nation’s intellectual state.

The feeling that the truth is only on one’s side, and that everyone that opposes one’s opinions is partaking in falsehood is incorrect and a serious mistake that we must distance ourselves from. It leads us to close off our hearts and become furious when we hear the other side. It moves us to act rashly in opposing others, and to block off their lines of argument, out of suspicion of their motives. As Allah says, “some suspicion is a sin.”

We may summarize from the above some of the sublime Islamic etiquettes that scholars must adopt when they disagree with one another, and how they must interact with different opinions. As ‘Abdullah bin Mubarak said, “We are in greater need of a little bit of manners than we are of a lot of knowledge .”

1-The spirit of brotherhood must be the foundation of Islam, and take priority over whether there is agreement or difference on speculative issues.

2-Discussion should be focused on seeking the truth. The differences between them must not be the product of individuals’ whims nor desire for gaining the upper hand. Rather, the search for the truth must be the goal of all. This is reflected in the hadith of the Prophet, “Wisdom is the lost treasure of the believer. Wherever he encounters it, he is entitled to it .”

3-Fellow discussants must be seen as helpers in this quest for truth, not opponents. They must be thanked when they point out one’s errors and clarify the truth.

4-The religion of Allah must not be spoken about without knowledge. As Allah says, “And pursue not that of which thou has no knowledge” (al-Isra’: 36). Before entering into disagreements on a matter, one should understand it well.

5-The disagreements must not go beyond speculative matters, and enter into foundational or doctrinal issues.
And Allah is the Granter of Success. He is Sufficent for us and the Best of Guardians. O Lord, do not lead our hearts astray after you have guided, and grant us Your Mercy, for You are the Giving. O Allah, show us the truth as truth and grant us the ability to follow it. And show us falsehood as falsehood and grant us the ability to abstain from it.

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