Disagrement among the Islamic Scholars.pdf

1. IBM 21043
Usul Al-fiqh
I. Saujan
Temp. Assistant Lecturer In
Islamic Law & Legislation
savjaniqbal@seu.ac.lk

2. Introduction
 The Qur’an is the most authentic and supreme guideline for human being that is of Almighty
Allah and communicated to the Prophet Muhammad (s.).
 There are few ways of law making process in Islam. There are two sects of Islam and these are
Sunnis and Shias. They have different schools among themselves. These schools, in other words,
madhabs interpret the sources of Islam and are the ways of law making. They vary from each
other in decision making but the faith and religion remain the same among the followers of these
madhabs.
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3. Schools of Islamic law - fiqh
Schools of
Islamic law
SUNNI SCHOOLS
Hanbali School
(d. 855)
Hanafi School
(d. 767)
Shafi'i
(d. 819)
Maliki
(d. 795)
02

4. Differences in Primary Sources of
Islamic Law
 The almighty Allah said:
“ َ‫ت‬ْ‫س‬‫ا‬َ‫ف‬ ْ‫م‬ُ‫ك‬‫ٮ‬ٰ‫ت‬ٰ‫ا‬ ۤ‫ا‬َ‫م‬ ْ‫ى‬ِ‫ف‬ ْ‫م‬ُ‫ك‬َ‫و‬ُ‫ل‬ْ‫ب‬َ‫ي‬ِ‫ل‬ ْ‫ن‬ِ‫ك‬‫ـ‬ٰ‫ل‬َّ‫و‬ ً‫ة‬َ‫د‬ ِ‫اح‬َّ‫و‬ ً‫ة‬َّ‫م‬ُ‫ا‬ ْ‫م‬ُ‫ك‬‫ـ‬َ‫ل‬َ‫ع‬‫ـ‬َ‫ج‬َ‫ل‬ ُ ‫ه‬
‫ّٰللا‬ َ‫ء‬ٓ‫ا‬َ‫ش‬ ْ‫و‬َ‫ل‬َ‫و‬
ٰ
‫ـر‬ْ‫ي‬‫ـ‬َ‫خ‬ْ‫ل‬‫ا‬ ‫وا‬ُ‫ق‬ِ‫ب‬
ِؕ‫ت‬ ”
“To each among you have we prescribed a Law and an open way. If Allah had so willed he would have
made you a single people but (His plan is) to test you in what he hath given you” (Al-Ma’ida 5:48).
And
“ َ‫ن‬ِ‫م‬ َ‫م‬َّ‫ن‬‫ـ‬َ‫ه‬َ‫ج‬ َّ‫َن‬‫ئ‬‫ـ‬َ‫ل‬ْ‫م‬َ َ
‫َّل‬ َ‫ك‬ِ‫ب‬َ‫ر‬ ُ‫ة‬َ‫م‬ِ‫ل‬َ‫ك‬ ْ‫ت‬َّ‫م‬َ‫ت‬َ‫و‬ ؕ ْ‫م‬ُ‫ه‬َ‫ق‬َ‫ل‬َ‫خ‬ َ‫ك‬ِ‫ل‬ٰ‫ذ‬ِ‫ل‬َ‫و‬ ؕ َ‫ك‬ُّ‫ب‬َ‫ر‬ َ‫م‬ ِ‫ح‬َّ‫ر‬ ْ‫ن‬َ‫م‬ َّ
‫َِّل‬‫ا‬
‫ا‬َ‫و‬ ِ‫ة‬َّ‫ن‬ ِ‫ج‬ْ‫ل‬‫ا‬
َ‫ن‬ْ‫ي‬ِ‫ع‬َ‫م‬ْ‫ج‬َ‫ا‬ ِ
‫اس‬َّ‫ن‬‫ل‬ ‫ا‬َّ‫و‬ ً‫ة‬َّ‫م‬ُ‫ا‬ َ
‫اس‬َّ‫ن‬‫ال‬ َ‫ل‬َ‫ع‬‫ـ‬َ‫ج‬َ‫ل‬ َ‫ك‬ُّ‫ب‬َ‫ر‬ َ‫ء‬ٓ‫ا‬َ‫ش‬ ْ‫و‬َ‫ل‬َ‫و‬
َ
‫َّل‬َّ‫و‬ ً‫ة‬َ‫د‬ ِ‫ح‬
َ‫ن‬ْ‫ي‬ِ‫ف‬ِ‫ل‬َ‫ت‬ْ‫خ‬ُ‫م‬ َ‫ن‬ ْ‫و‬ُ‫ل‬‫ا‬َ‫ز‬َ‫ي‬ ”
“If the Lord had so willed he could have made mankind one people: but they will not cease to dispute.
Except those on whom he hath bestowed his mercy: and for this did he create them” (Hood: 11:118-
119).
 Prophet Muhammad (pbuh) said:
"Difference of opinion among my community is a sign of the bounty of God." - Prophet Muhammad (pbuh)
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5. Continue….
 When we look at linguistic differences, it becomes clear quite quickly that the language itself
generates multiple understandings, when it is not definitive.
 The Islamic pillars are definitive as is the ayah, Qul huwa Allahu Ahad, ‘Say there is One God.’
[112:1].
 The meaning is unambiguous – it is about the tawheed (oneness) of Allah Almighty.
 However when we have an ayah such as la mastum un nisa, ‘when you come into contact with
women’ [5:6], does it mean physical touching or is it a euphemism for sexual contact?
 The truth is that Allah Almighty wanted differences of opinions to arise. He could have, if He
wished, made the meanings unequivocally clear. But He deliberately chose a word which carries
more than one opinion. Why? To give ease to the ummah.
 Omar ibn Abdul Aziz made a beautiful statement that “he would dislike the companions to have
only one opinion. He was glad they had multiple opinions because this creates ease. Otherwise
there would be one inflexible opinion, which you would have to stick to regardless of your
circumstances. When we have room for more than one option, it makes life easy.”
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6. Continue….
 One of the characteristics of the shariah is ease.
 In the Qur’an Allah Almighty said:
“Allah intends for you ease. And does not intend for you hardship.” (2:185)
 The Prophet (peace be on him) always used to say to his companions, Yasiru wa la tuasiru:
“Make things easy for the people, and do not make it difficult for them” (Bukhari)
 This is the main theme. Allah Almighty never made hardship for you in his deen. I wonder why
some people are pushing the culture of hardship into our faces and into our community? Why?
This is not the prophetic understanding or practice. The Prophet (peace be on him) always opted
for the culture of ease.
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7. Differences amongst the fuqaha
Linguistic Difference
Evidence differences
Understanding differences
Differences in using Sources of Islamic
Law
 The differences amongst fuqaha can be understood as following manner
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8. 01. Linguistic Differences
 In the Arabic dictionary, ‘Quru’ is a homonym, i.e. it can mean two different things. In this instance,
they are opposites: one is tuhur (purity) and one is hayd (menstruation)? Which one is required here?
He left it open.
 Allah Almighty could have said let them wait for three hayd or three tuhur. But He never said which
because He wants ease. What are the consequences of difference in meaning? Huge. If a woman’s
husband passed away while she was on her period is she entitled to inheritance from him? If we follow
one opinion – then yes. If you follow the other, then no. So Allah Almighty gave us room to manoeuvre
here.
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9. Continue….
 The word aba’i (father) linguistically literally (haqiqa) means your biological father. Here it is not
the biological father, it is a metaphorical (majaz) father.
 In addition, the grandfather can be called the father as well, so the word has more than one meaning.
What are the consequences of this? Does the grandfather in the absence of the father inherit or not?
So there is room for discussion.
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10. 02. Evidence differences
“ ِ‫ط‬ِٕ‫ٮ‬ٓ‫ا‬َ‫غ‬ْ‫ل‬‫ا‬ َ‫ن‬ِ‫م‬ ْ‫م‬ُ‫ك‬ْ‫ن‬ِ‫م‬ ٌ‫د‬َ‫ح‬َ‫ا‬ َ‫ء‬ٓ‫ا‬َ‫ج‬ ْ‫و‬َ‫ا‬ ٍ‫ر‬َ‫ف‬َ‫س‬ ‫ى‬ٰ‫َل‬‫ع‬ ْ‫و‬َ‫ا‬ ‫ى‬
ٰٰۤ‫ض‬ْ‫ر‬َّ‫م‬ ْ‫م‬ُ‫ت‬ْ‫ن‬ُ‫ك‬ ْ‫ِن‬‫ا‬َ‫و‬
َ‫ت‬ ْ‫م‬َ‫ل‬َ‫ف‬ َ‫ء‬ٓ‫ا‬َ‫س‬ِ‫الن‬ ُ‫م‬ُ‫ت‬ْ‫س‬َ‫م‬ٰ‫ل‬ ْ‫و‬َ‫ا‬
َّ‫م‬َ‫ي‬َ‫ت‬َ‫ف‬ ً‫ء‬ٓ‫ا‬َ‫م‬ ‫ا‬ ْ‫ُو‬‫د‬ ِ‫ج‬
‫ا‬ً‫ب‬ِ‫ي‬َ‫ط‬ ‫ًا‬‫د‬ْ‫ي‬ِ‫ع‬َ‫ص‬ ‫ا‬ ْ‫و‬ُ‫م‬
ْ‫م‬ُ‫ك‬ْ‫ي‬ِ‫د‬ْ‫ي‬َ‫ا‬َ‫و‬ ْ‫م‬ُ‫ك‬ِ‫ه‬ ْ‫و‬ُ‫ج‬ُ‫و‬ِ‫ب‬ ‫ا‬ ْ‫و‬ُ‫ح‬َ‫س‬ْ‫ام‬َ‫ف‬”
“….or one of you comes after answering the call of nature, or you have been in contact
with women and you find no water, perform tayammum” (4:43)
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11. Continue….
 Allah Almighty is saying ‘if you have been in contact with women’, does it mean literal
touching? Or is it a metaphor? There are two interpretations for this.
 Both schools have evidences. In the Hanafi school, mere touching doesn’t break wudu. And one
evidence to support this interpretation is in Bukhari, (narrated by Aisha) when the Prophet (peace
be on him) would kiss his wife and then go to pray without renewing wudu.
 However the Shafi school bring other narrations and maintain that it breaks wudu. For all newly
weds, even when they are Shafi, they become Hanafi! This is the culture of ease. We will explore
later how to choose a school with the right etiquette.
 Ultimately it is a matter of evidence, when the evidence is authentic it is accepted by scholars. It is
the scholars- not lay people, who establish rulings.
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12. 03. Methodology of the Different Schools
 In general, when you study the four schools, and see the different approaches of the rationalists
and the traditionalists, you find the Hanafis on one side and the remainder on the other. Even in
usool ul fiqh they have their own schools.
 An example of this is whether it is an obligation to recite the Fatihah in salah or not. There are
plenty of narrations. The Prophet (peace be on him) said: “Whoever performs a prayer in which
he does not recite Ummul Quran (the Mother of the Qur’an, i.e. Al Fatihah), it is deficient; not
complete.” (ibn Majah)
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13. Continue….
 Shafis and Hanbalis and Maliks say that if you were behind an imam but did not recite Al Fatihah in
your salah, your salah is not valid. The Hanafi say that you should not recite the Fatihah behind the imam.
The difference comes from the different methodology used to deduce rulings.
 The Hanafi school consider fard on top, then wajib (close to fard) and then Sunnah. However the other
schools refer to only the fard and the Sunnah without the wajib in between. The wajib was invented by the
Hanafis. They said it is above the Sunnah but below the fard. Thus the recitation of the Fatihah is not
obligatory because we cannot contradict the Qur’an. The Qur’an says:
“So, recite you of the Qur’an as much as may be easy for you. (73:20)”
 Therefore this verse is from the highest level of authority (mutawatir) and clear. Therefore this is the
obligation and whatever else comes from the Sunnah cannot override the Qur’an.
 Therefore the Hanafi says reciting Fatihah is lower than fard, but wajib. In order to combine between the two
the Hanafi says the obligation is only to recite Qur’an in your salah. How does this affect us? If you are a
new Muslim and you have not learned the Fatihah, can you recite anything from the Qur’an – according to
the Hanafis, yes, it will be valid.
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14. 04. Differences in Sources
 When deriving rulings and law, the four madhabs rely on the primary sources of Islam to varying
degrees.14 For example, the Hanafi Madhab relies more on ijtihad than the Hanbali madhab. On
the other hand, The Maliki madhab appears to view the Qur'an verses more literally than the other
madhabs.
 Secondary sources of legislation include Urf (social customs), Maslaha (public interest), Istasna
(exceptional cases), Istihsan (opinion preference over another).16 Importantly, they are not limited
to these secondary sources abovementioned.
 For instance, Imam Malikhimself regarded the Urf of the Medina people as a valid secondary
source of law while all three other madhabs reject it. Hanafis regard Istihsan as a valid secondary
source of law while Shafis reject it entirely.
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15. More Reasons for Disagreements
 Language, evidences and understanding are not the only reasons for differences in opinions.
 Differences can also stem from misunderstandings or making a personal choice.
 There is a difference between public fatwas and personal choices. Sometimes it is
desire (hawa) and not evidence. The Qur’an states so many times, do not follow whims and
desires, because they take you away from the path of Allah Almighty.
And do not follow vain desires (5:48)
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16. References
1. Agha Talal, ‘What are the differences between Hanafi, Shafi, Hanbali and Maliki in Islam? ‘(2017)
https://www.quora.com/What-are-the-differences-between-Hanafi-Shafi-Hanbali-and-Maliki-in-Islam
2. Bassiouni M, 'Schools of Thought in Islam' (Middle East Institute, 24 January 2012)
https://www.mei.edu/publications/schools-thought-islam
3. ‘Difference between 4 madhabs/schools of thought?’
https://www.reddit.com/r/islam/comments/1kdvbf/difference_between_4_madhabsschools_of_thought/
4. M H, ‘The Main Differences between the Three Schools of Usul al Fiqh’ <
https://www.academia.edu/4067031/The_Main_Differences_between_the_Three_Schools_of_Usul_al_Fiqh>
5. Mughniyya M J, ‘The Five Schools of Islamic Law’<https://www.al-islam.org/shiite-encyclopedia/prayer-salat-
according-five-islamic-schools-law-part-1>
6. RafiqA Tschannen, 'What are the differences between Hanafi, Shafi, Hanbali and Maliki in Islam?' (The Muslim
Times, 8 October 2017) https://themuslimtimes.info/2017/10/04/what-are-the-differences-between-hanafi-shafi-
hanbali-and-maliki-in-islam/
7. ‘What are basic (osol al fiqh) differences & similarities between the 4 (existing) Legal Sunni Schools: Hanafi,
Hanbali, Maliki, & Shafi'i? Charts?’ https://islam.stackexchange.com/questions/35293/what-are-basic-osol-al-
fiqh-differences-similarities-between-the-4-existing
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