Comparative Fiqh

1. Comparative Fiqh
(
‫المقارن‬ ‫الفقه‬
)
Mr. I. Saujan
Temp. Asst. Lecturer
Department of Islamic Studies

2. Introduction
• The term ‘al-fiqh al-muqaran’ is composed of two words as following
manner:
Fiqh
Muqaran
al-fiqh al-
muqaran
(‫المقارن‬ ‫)الفقه‬
1. Linguistically- Means understanding and
knowing something.
2. Technically- the knowledge of the shari’ah
practical rulings acquired from detailed
evidences.
1. Linguistically-it has two meanings
1. First - Combining and Gathering
2. Second – Comparing
2. Technically – Muqaranah stands for
comparing two opinions to know the
similarities and differences between them
and to find which one is supported by
stronger evidence

3. Historical evaluation of Fiqh Muqaran
• Fiqh Muqaran has never existed in the time of Prophet Mohammad (PBUH)
because there was no disagreement on the doctrinal matters, although if any
dispute appeared the words of Prophet Mohammad (PBUH) were decisive
and shall be applied.
• This is a modern concept that traces its origins to the 20th century Egyptian
scholar Ahmad Ibrāhīm.
• Fiqh Muqaran arises and plays an essential role in reducing the size of the gap
between the Madhab by using significant methods such as Talfiq, Takhayur
and other methods which are adopted by the Mujtahedin.

4. Evaluation of al-Fiqh al-muqaran
Fiqh al-Ikhtilā
 it is a study of the opinions of the jurists
with or without an expose of their
respective evidences and answers to
opposing views.
 The primary objective this study is the
differences of the jurists.
 books related Ikhtilāf were written with
the purpose of presenting the differences
of the jurists whether the author only
mentions their opinions or supports the
evidence of the preferred view of his
madhhab.
 The 2nd century, scholars compiled
Hadīth collections on the reports and
differences of the Companions and
Successors on legal issues; the discipline
further evolved during the era of the
mujtahid scholars where they began citing
legal issues alongside the disagreements
therein.
al-Fiqh al-Muqāran
 Al-Fiqh al-Muqāran is a comparative study and
evaluation of the opinions and proofs of the
jurists by someone who neither ascribes to
the legal schools nor complies to their legal
theory.
 the Fiqh of this individual is not
acknowledged by the scholars of the legal
schools since he does not adopt any of their
juristic methodologies nor an accurate
method of evaluation, due to the absence of
reliable documented principles like the legal
theory of the madhhabs.
 Allāmah Ahmad Ibrāhīm (d. 1945) is the
leading jurist of the time who remodeled the
style of Islamic law in Egypt.”
 Ahmad Ibrāhīm was the first to address legal
issues in a comparative style similar to
conventional comparative law, which credited
him with remodeling Islamic law. This label
and idea were unknown to earlier Muslims;
they were an outcome of colonial thought and
influenced by secular law.
‘Ilm al-Khilāf
 ‘Ilm al-Khilāf teaches the method of
critically engaging the evidence of the
opposing view in accordance to the
protocols of debate and argumentation.
 It is defined as a study of the methods of
presenting shar‘ī evidence, answering
critiques, and dismantling disputative
arguments by adducing evincive proofs.
 Tāshkubrī Zādah writes, “The science of
disputation and differences can be placed
among the branches of Usūl al-Fiqh.”
 Abū Zayd al-Dabūsī (d. 430 AH) is
regarded as the founder of ‘Ilm al-Khilāf as
a result of the widespread and fervent inter-
madhhab debates during the 5th and 6th
centuries.
 ‘Ilm al-Khilāf is a description of the
differences of the scholars, not restricted to
deconstructing the opposing opinion. it is
more comprehensive and it includes the
first generations of scholarship and
continues to this day.
1 2 3

5. Process of Fiqh Muqaran
Point out the Scholars’ views about a specific controversial fiqh
issue and define the disagreement
Point out the reasons for disagreement and how evidences
support their argument
The opinions are discussed in a scholarly manner and the
counter argument are presented
The preponderant view will be selected with the
elaboration of the reasons justifying
A new opinion will be formulated on the ground of the
evidence that faqh deems stronger
01
02
03
04
05

6. The approaches of fiqh muqaran
1. Talfiq (Patchwork or combination)
2. Takhayyur (Selection)
3. Tarjih (Outweighing)
4. Taqleed (Blind Following)
5. Ittiba (Following)

7. 1. Talfiq (Patchwork or combination)
• Talfiq is a stretch of Takhayyur (patchwork or combination) it means the combination of
several opinions and views which are adopted by different Madhhad or jurists into one decisive
matter which was dissimilar to all.
• The approach of Talfiq is considered as an instrument of Ijtihad as well as the jurists utilize this
approach when they want to establish new judgment which is not exists or when there are
conflicting between more than one judgment in the same and particular issue in order to find
suitable solution and judgment
• Furthermore, it considers as jurisprudential concept which proposes that the Madhhad who
depends on weak evidence in the particular issue must give up his judgment and follow the
evidence which had offered by another Madhhad because it is realistic and compatible with the
requirements of the new Age.
• Therefore, the different opinions which are selected by the scholar integrate together in order
to formulate new judgment which differ from the previous one. Thus, selecting the opinions
freely without any restrictions will help to serve the goals of law.

8. Example - I
• َ‫ت‬ ‫ا‬َ‫م‬ ‫ا‬ ْ‫و‬ُ‫م‬َ‫ل‬ْ‫ع‬َ‫ت‬ ‫ى‬ّٰ‫ت‬َ‫ح‬ ‫ى‬ ٰ
‫ار‬َ‫ك‬ُ‫س‬ ْ‫م‬ُ‫ت‬‫ـ‬ْ‫ن‬َ‫ا‬ َ‫و‬ َ‫ة‬‫و‬ٰ‫ل‬َّ‫ص‬‫ال‬ ‫وا‬ُ‫ب‬ َ‫ر‬ْ‫ق‬َ‫ت‬ َ
‫َل‬ ‫ا‬ ْ‫و‬ُ‫ن‬َ‫م‬ٰ‫ا‬ َ‫ْن‬‫ي‬ِ‫ذ‬َّ‫ال‬ ‫ا‬َ‫ه‬ُّ‫ي‬َ‫ا‬‫ـ‬ٰٰۤ‫ي‬
‫ب‬ُ‫ن‬ُ‫ج‬ َ
‫َل‬ َ‫و‬ َ‫ن‬ ْ‫و‬ُ‫ل‬ ْ‫و‬ُ‫ق‬
ِ‫س‬َ‫ت‬ْ‫غ‬َ‫ت‬ ‫ى‬ّٰ‫ت‬َ‫ح‬ ٍ‫ل‬ْ‫ي‬ِ‫ب‬َ‫س‬ ْ‫ى‬ ِ
‫ر‬ِ‫ب‬‫ا‬َ‫ع‬ َّ
‫َِل‬‫ا‬ ‫ا‬
ْ‫م‬ُ‫ت‬ْ‫ن‬ُ‫ك‬ ْ‫ِن‬‫ا‬ َ‫و‬ ؕ‫ا‬ ْ‫و‬ُ‫ل‬
ِ‫ط‬ِٕ‫ٮ‬ٓ‫ا‬َ‫غ‬ْ‫ال‬ َ‫ن‬ِ‫م‬ ْ‫م‬ُ‫ك‬ْ‫ن‬ِ‫م‬ ٌ‫د‬َ‫ح‬َ‫ا‬ َ‫ء‬ٓ‫ا‬َ‫ج‬ ْ‫و‬َ‫ا‬ ٍ
‫ر‬َ‫ف‬َ‫س‬ ‫ى‬ٰ‫ل‬َ‫ع‬ ْ‫و‬َ‫ا‬ ‫ى‬ ٰٰۤ‫ض‬ ْ‫ر‬َّ‫م‬
‫ا‬َ‫س‬ِّ‫الن‬ ُ‫م‬ُ‫ت‬ْ‫س‬َ‫م‬ٰ‫ل‬ ْ‫و‬َ‫ا‬
َ‫ء‬
ُ‫ح‬َ‫س‬ْ‫ام‬َ‫ف‬ ‫ا‬‫ب‬ِ‫ي‬َ‫ط‬ ‫ا‬‫ْد‬‫ي‬ِ‫ع‬َ‫ص‬ ‫ا‬ ْ‫و‬ُ‫م‬َّ‫م‬َ‫ي‬َ‫ت‬َ‫ف‬ ‫ء‬ٓ‫ا‬َ‫م‬ ‫ا‬ ْ‫ُو‬‫د‬ ِ‫ج‬َ‫ت‬ ْ‫م‬َ‫ل‬َ‫ف‬
ْ‫م‬ُ‫ك‬ْ‫ي‬ِ‫د‬ْ‫ي‬َ‫ا‬ َ‫و‬ ْ‫م‬ُ‫ك‬ِ‫ه‬ ْ‫و‬ُ‫ج‬ ُ‫و‬ِ‫ب‬ ‫ا‬ ْ‫و‬
‫ا‬‫ر‬ ْ‫و‬ُ‫ف‬َ‫غ‬ ‫ا‬ ًّ‫و‬ُ‫ف‬َ‫ع‬ َ‫ان‬َ‫ك‬ َ ّٰ
‫ّٰللا‬ َّ‫ِن‬‫ا‬ ؕ
ؕ
ek;gpf;if nfhz;ltu;fNs! ePq;fs; XJtJ ,d;dJ vd;W ePq;fs; mwpe;J nfhs;s
KbahjthW ePq;fs; Nghijapy; ,Uf;Fk;NghJ njhOiff;F neUq;fhjPu;fs;; md;wpAk;
Fspg;Gf; flikahf ,Uf;Fk;NghJ Fspf;Fk; tiu (gs;spf;Fs; nry;yhjPu;fs;; gs;spia)
ghijahf fle;J nrd;why; jtpu. ePq;fs; NehahspahfNth> ahj;jpiuapNyh> ky[yk;
fopj;Njh> ngz;fisj; jPz;bNah ,Ue;J (Rj;jk; nra;J nfhs;s) jz;zPiu ngwhtpbd;
Rj;jkhd kz;izj; njhl;L cq;fSila Kfq;fisAk;> cq;fSila iffisAk; jltp
“jak;Kk;” nra;J nfhs;Sq;fs;; (,jd;gpd; njhoyhk;) epr;rakhf my;yh`; gpio
nghWg;gtdhfTk;> kd;dpg;gtdhfTk; ,Uf;fpd;whd;. (me;ep]h 4:43).

9. Example - II
• The case of Gulam Ahmed v. Muhammad Ibrahim in 1864.
girl who adopted the Shafi‟ Madhab which stipulated that the consent of father is
necessary for making the marriage valid but she made her marriage without taking the
permission of her father.
When the case brought to the court, she alleged that she decided to change her Madhab
and to follow the Hanafi Madhab which allowed the adult Muslim woman to make a
marriage without fathers consent.
In other hand, there are two views which determine whether Talfiq is accepted or
unaccepted: The first opinion stated that Talfiq is not allowed because it creates third
opinion in the issue which already has two opinion.
The second view is that Talfiq is allowed especially in the case when Talfiq will be
subjected to probable Ijtihad not to the ijma

10. 2. Takhayyur (selection)
• Takhayyur means election or selection one opinion or view which is adopted by single
Madhhad or more than one Madhhad in different issue (not in the same issue).
• this concept had utilized to estimate potential alternatives from the huge number of jurist’s
views about a specific point as well as it used with the intention to reduce the restriction in the
application of fatwa in the issues
• It helps the Faqhi to select the most favorable opinion which is adopted by the one of the major
Jurisprudential Schools.
• Therefore, this method has been used widely by the jurists because this method is flexible tools
especially in case of selecting the existing rules which adopted among the Madhhabs.
• Takhayyur has a tremendous significance in improving a number of personal law or family laws
which established in the Muslim countries.

11. Example - I
• the Muslim woman who seeks to the dissolution from marriage
and she adopts Hanafi Madhab which imposes difficult
requirements in order to allow the wife to end the marriage
compared with the Maliki Madhab which is elastic because it gives
a power to the wife to end the marriage by using the reasons of
cruelty and truculence of her partner. Such as Syrian law of
personal rights 1953.

12. 3. Tarjih (Outweighing)
• If there is conflicting among evidences and one of these evidences has an advantage
over another. So, this process can describe Tarjeeh (outweighing), In other words, to
give preponderance to one evidence over another because it is strong.
• Tarjeeh particularly occurred among the speculative evidences. In contrast, it does
not happen in the definite matters which do not face any contradiction in the
particular issue.
• Therefore, the jurists who want to perform Tarjih should have clear and accurate
knowledge in Q’uran and Sunnah, also he should cover everything in Ijama for
protecting himself from issuing Tarjih which clashes with any Ijama, he should has a
back ground in Qiyyas, he must has huge experiences and back ground in term of
rules and grammars of the Arabic language.

13. Example - I
• A perfect instance which describe the meaning of Tarjeeh is the
determining the Salat al Asr time according to the bulk of
jurists. Asr time begins immediately when your shadow and
length are equal, In contrast, the Imam Abu Hanifa adopts different
view which stipulates that the time of Salat Asr begins when your
shadow is double your length. So when jurist looks to the different
evidences which adopted by both the majority of imams and imam
Hanafi will see that the evidences of the majority are stronger than
the evidences of Hanafi. So, if the Faqhi follows the majority that
mean he makes a preponderance to evidence upon another

14. The benefits of Fiqh Muqaran
I. Illustrates the difference and the similarity between all Madhhad and opinions by
clarifying the original reasons which lead to dissimilarity.
II. Shows the ways which are used by Imams in order to adopt these Ijtihad and
elicitation.
III. Compares with the different opinions to select the powerful and useful evidences
which bring plenty of benefits for individuals as well as leads to improve the
Islamic nation. For example in Syria the Personal Status Law has amended to
cover the four Madhhad without any prejudice to Hanfi Madhhad because
previously the personal law in Syria followed only the Hannfi Madhhad.
IV. Reduces the lacuna between all Madhhad in hand, and in other hand at least helps
to know the nearest Madhhad to the right way in order to apply it.
V. Motivates and encourages the jurists to study the sharia law which considers the
main source of law
VI. Helps to increase the abilities of scholars in the area of analyzing and deducing
the judgments.