CHAPTER ONE

GENERAL INTRODUCTION

 1.1 Introduction

It will be wrong for anyone to consider the divergent views of Muslim jurists (both early and present) on issues or matters as mere academic exercise. Differing is inevitable among mankind because of individual natural differences regarding thinking, understanding, power of assimilation, intellect, etc. Thus, differences and contradictions are a natural outcome. Allah The Most High says: “And if your Lord had willed, He could have made mankind one community; but they will not cease to differ”

Texts under Islamic Law are general in their nature, and give room for interpretations. Some of the provisions from the Qur‟an are not opento interpretations. On the other hand, some of its provisions are open to different interpretations. Similarly, there are parts of the texts of Sunnah which are subjected to interpretations and there are some which are not. Some matters are neither expressly mentioned in the Qur‟an nor the Sunnah, and this is regarded as silence of the texts regarding them. This has made the jurists to develop some certain principles. The detailed texts found in the Qur‟an and the Sunnah according to the Islamic Jurists, are divided into four types as follows:

1) Texts which are definitive (qat‟iyyah) both in respect of authority and meaning.

2) Texts which are authentic in their authority but speculative (zanniy) in meaning.

3) Texts which are of doubtful authority, but definitive in meaning.

4) Texts which are speculative in respect to both authority and meaning . Interpretation which gives room for decision or owing to opinion, does not apply to the first of the above categories, such as the clear provision (Nusus) concerning the prescribed penalties (Hudud) on the allocated shares (Furood) of inheritance both in the Qur‟an and SunnahAl-mutawatir (continuous Sunnah) that conveys definitive meaning. But interpretation can validly operate in regard to any of the remaining three types of texts .

Knowing the causes of juristic differences in interpretation under Islamic Law, helps in a long way, to overcome and at the same time to discard the blind following of one of the four major orthodox schools of Islamic Jurisprudence. The correctness of the orthodox interpretations was proportional to their innate capabilities and to the types and quantity of legal authorities (adillah) available to them at the time of making rulings. It is based on these facts, that the early jurists prohibited their followers from blind following in all aspects and disliked disagreement, as it has shown in their actual statements:

Abu – Yoosuf, Ya‟qoob, disciple of Imaam Abu Haneefah, reported that the Imaam once told him, “Woe be on you, Yaqoob. Do not write down all you hear from me, for surely I may hold an opinion today and leave it tomorrow, hold another tomorrow and leave it the day after” .

Ibn „Abdil-Barr reported that Imaam Maalik once said:

“Verily I am only a man, I err and am at times correct; so thoroughly investigate my opinions, then take whatever agrees with the Book and the Sunnah, and reject whatever contradicts them” .

Imam Ash-Shaafi‟ee stressed a very important point concerning personal opinion versus the Sunnah where he said:

“The Muslims (of my time) were of a unanimous opinion that one who comes across an authentic Sunnah ofThe Holy Prophet (peace be upon him) is not allowed to disregard it in favor of someone else‟s opinion” .

Imam Ahmad Ibn Hambal, in his warnings against blind following was reported to have said; “Do not blindly follow my rulings, those of Maalik,ash-Shafi‟ee, al-Awzaa‟ee, or ath-Thawree. Take (your rulings) from where they took theirs” .

The four Sunni Schools of Islamic Law are not sects. Each has been organized around a legal theory that it upheld and practised for legal deduction .

However, despite various handicaps, the early Muslim jurists discharged their duties to Islam and to their fellow mankind by using Allah‟s given power of intellect to interpret His purpose to mankind.

Hopefully, this work should encourage greater harmony between divergent opinions among presentday Muslim jurists and judges.

1.2 Statement of the Problem

Modern advocacy for adherence to hadith that has emerged in recent time, has painted a sordid picture of the classical jurists, depicting their works as mere academic exercise. This notion needs to be corrected. Otherwise, the Shari‟ah will, in turn, not be suitable and applicable to new situations for which there is no decisive ruling in both the Holy Qur‟an and the Sunnah. All the schools of Islamic law (al-Madhahib), have contributed in different degrees to the development of Islamic law in its totality. In other words, they remain the only tools ever used in expansion of the Islamic law.

It should also be known that these jurists, whatever the result of their exercise in the course of interpretation, positive or negative, it is rewarded. The Holy Prophet (peace be upon him) says:

“When anybody exercises ijtihad (juristic reasoning) and he is correct in his opinion, he will have two rewards, but if he errs in his effort, he will still have earned one reward” .

1.3Aim and Objectives of the Study

The aim of this work is to provide a ground for correcting the misgivings that many reserve against our past and present jurists and judges on cases where they differ.

The study is conducted with the following objectives:

1) To show that the nature of the Qur‟anic provisions makes the phenomenon of Ikhatilaaf (difference of opinion) among the jurists inevitable.

2) To show that the nature of the provisions found in the Sunnah gives room for difference of opinion in interpretation among the jurists.

3) To show that apparent Silence of the Shari‟ah regarding some matters has contributed on a large scale, to difference of opinion among the jurists.

1.4 Justification

Knowing the causes of juristic differences in interpretation under Islamic law is relevant and important to the law makers, judges and researchers. Law makers across the globe will find this study relevant because it will help in formulating relevant policies on issues under Islamic law. Judges will also benefit from the work because it will guide them in taking proper decision on cases that may be brought before them under Islamic law. Certainly the work would provide a ground for correcting the misgivings that many reserve against our past and present jurists and judges on cases where they differ as it presents the nature of the texts of both the Qur‟anand the Sunnah and silence of the texts as the causes of juristic differences in interpretation.

Above all, the work will be of great value to policy and decision makers, teachers and leaders in Islamic law. It is hoped also that the work would fill a literature gap by contributing to knowledge and useful as reference material for juristic reasoning (Ijtihad), as it is strongly believed by the writer that the door has not been closed.

1.5 Scope of the Study

The research deals substantially with the textual aspects regarding the causes of juristic differences in interpretation under Islamic law which has major impact on legal interpretation and juristic opinion.

However, the research covers territorially, all Sunni Muslim existing areas where legal decisions under Islamic law are in operation throughout the whole world.

1.6 Methodology

With regard to the aspect in which this research is said to cover, as stated in its scope, the doctrinal method being the most considerable method with regard to legal research will be relied upon.

The writer in his findings will incorporate the primary sources of Islamic law, namely the Qur‟an and Sunnah of the Prophet (peace be upon him) and secondary sources also be based on the classical works of the jurists on Islamic legal theories such as Ilmu Usil al-Fiqh by Khallaf, al-Wajeez fi usil-al-fiqh by Zaydanee, Usul Fiqh, by Khudaree, al-Muwa faqaat fi „usil al-Ahkam by al-Shatibee, al-Ihkaam fi usulil-ahkaam by al-Aamidee, arRisaalah by ash-Shafi‟ee, Al-Mustasfaa by Imam Ghazalee, Usul al-Fiqh, by Abu Zahrah, Theories of Islamic law by Nyazee, and Principles of Islamic jurisprudence by Kamali among others in discussing the

characteristics features of the Quranic legislation and the Sunnah, and their methods of qiyas where the text is silent while their works on jurisprudence or fiqh such as Ar-rad „Ala Seeril Auzaa‟ee by Abu Yusuf, Bidaayatulmujtahid Wa Nihayatul-Maqtasid by Ibnu Rushd, al-Qawaanin al-fiqhiyah by Ibnu Juzay, Al-Istidhkaa Li Madhahibi A‟immatil Amsaar by Ibnu „Abdil Barr, Tuhfatul Fuqahaa by as-Samarqandee, Al-Furu‟ by alMuqdisee, al-Mugnee, by Ibnu Qudaamah, Al-Fiqul-Ismalee wa Adillatuhu by az-Zuhailee and Al-kaafee fi Fiqh Ahlil Medinah by al-Qurtubee, among others in discussing differences among the jurists and giving instances on issues that they differ over and this will also be supported by other works on differences or causes of differences among them such as Raf‟ul Malaam

„anil-Aimmatil A‟alaam by Ibnu Taimiyah, Ikhtilaaful – Aimmatil

Ulama,by as-Shaibaanee, Eetharul – Insaaf Fi Athaaril Khilaaf, by Ibnu

Zawzee, Al-Jaami‟ul Mufeed Fi Asbaabi Ikhtilafil Fuqahaa, by Hamidee, Al-khilaaf bainal „Ulama, by Usaimin, and Al-Insaaf Fit-Tanbeeh „Ala

Asbaabil Ikhtilaaf, by al-Batlaimusee, among others.

1.7 Literature Review

The writer has come across certain works on this topic, although the approach and the scope differ from that of the writer.

Works of both early scholars and contemporary scholars which discussed juristic differences that must not left out in mentioning among the others are:

Raf‟ul Malaam „anil-Aimmatil – A‟laam, Imam Ibnu Taimiyah, Ahmad bin Abdul Halim.

The writer of this work discussed the differences as well as their causes among the companions of the holy Prophet (peace be upon him). In this approach, all the causes that were mentioned related only to the Sunnah.

Causes of difference due to the Qur‟anic provisions and silence of both the Qur‟an and the Sunnah were not mentioned, that is the gap which this work would bridge, as it presented them in a more simplified method.