Principles of Islamic Jurisprudence: Brief Introduction

by Shaykh ‘Abdur-Rahmân ibn Nâsir as-Sa’dî

From Ahya.org

Prologue

[Risaalah Lateefah Jaami’ah fee Usoolil-Fiqhil-Muhimmah, which is part of Manhajus-Saalikeen wa Tawdeehul-Fiqh bid-Deen (pp.101-112)]

All praise belongs to Allaah. So we praise Him for what He possess from His beautiful Names and lofty and perfect Attributes; and for His Judgement and Decree which encompasses everything in existence; and for His Divinely Prescribed Laws which encompass every field of legislation; and His Judgement concerning rewards for the doers of good, and punishments for the criminals.

I testify that none has the right to be worshipped except Allaah alone, who has no partner in His Names. Attributes or Judgement. And I testify that Muhammad is His Slave and Messenger; who clarified the Judgement and the rulings, made clear the halaal (lawful) and the haraam (prohibited), and established the fundamentals and expounded upon them – until the Religion was completed and establsihed firmly. O Allaah extol and send the blessings of peace upon Muhammad, and upon his family, his Companions and those that follow them, particularly the Scholars.

To proceed: This is a brief essay concerning usoolul-fiqh (fundamentals of jurisprudence), uncomplicated in wording, clear in meaning, and useful in learning its rulings for whosoever contemplates its meanings. We ask Allaah that He benefits both its compiler and its reader. Indeed He is the Most Generous.

Chapter 1
Usoolul-Fiqh: it is the science concerning the comprehensive evidences of fiqh. Since fiqh consist of either [i] masaa‘il (issues) concerning which the ruling by one of the five rulings is sought, or [ii] it is the dalaa‘il (evidences) employed in extracting and determining these masaa‘il (issues). So fiqh is actualy knowledge of the masaa‘il (issues) and the dalaa‘il (evidences).

These dalaa‘il (evidences) are of two types:-

Comprehensive evidences that encompass every ruling – from the beginning to the end of fiqh – of a single kind; such as our saying: “al-amr lil-wujoob (a command is indicative of an obligation).” Or: “an-nahee lit-tahreem (a forbiddance is indicative of a prohibition).” And other similar evidences. So these are part of usoolul-fiqh

Detailed evidences that are to be understood in the light of the comprehensive evidences. So when such is completed, then the ahkaam (rulings) can be resolved.

Thus, the ahkaam (rulings) are in need of their detailed evidences, and the detailed evidences are themselves in need of comprehensive evidences. So by this, we recognise the need and the necessity of knowing usoolul-fiqh, and that it aids in the understanding of fiqh itself, and that it is the foundations for deducing and making ijtihaad in the ahkaam (rulings).

Chapter 2
The ahkaam (rulings) upon which fiqh revolve are five:-

Waajib (obligation): that for which the one who performs it is rewarded, whilst the one who abandons it is punished.

Haraam (prohibition): this is the opposite of an obligation.

Masnoon (recommended): that for which the one who performs it is rewarded, whilst the one who leaves it is not punished.

Makrooh (detested): this is the opposite of a recommendation.

Mubaah (permissible): this is where both (its doing or leaving) are equivalent.
Those rulings which are waajib (obligatory) are divided into two catagories: fard ’ayn (individual obligation), the doing of which is sought from every mukallaf (morally responsible), baaligh (mature) ’aaqil (sane) person. The majority of the Sharee’ah rulings enter into this catagory. The second is fard kifaayah (collective obligation), the performance of which is sought from the morally responsible collectively, but not from every individual specifcally; such as the learning of the various branches of useful knowledge and useful industries; the adhaan; the commanding of good and forbidding of evil; and other similar matters.

These five rulings differ widely in accordance with its state, its levels and its effects.
Thus, whatever is of pure or of overwhelming maslah (benefit), then the Shaari’ (Lawgiver) has commanded its performance with either an obligation or a recommendation. Whatever is of pure, or of overwhelming mafsadah (harm), then the Lawgiver has stopped its doing with either an absolute prohibition or dislike. So this asl (fundamental principle) encompasses all matters commanded of prohibited by the Lawgiver.

As for those matters which the Lawgiver has permitted and allowed, then at times they lead to that which is good, and so are joined to those matters which have been commanded; and at other times they lead to that which is evil, and so are joined to those matters which are prohibited. So this is a great asl that: “al-wasaa‘ilu lahaa ahkaamul-maqaasid (the means take on the same ruling as their aims).”

From this we learn that: “maa yatimmul-waajib illaa bihi fahuwa waajib (whatever is required to fulfill an obligation is itself an obligation).” Likewise, whatever is required to fufill a masnoon (recomendation) is itself recommened. Whatever leads to the establishment of a haraam (prohibition) is itself prohibited. And whatever leads to the establishment of a makrooh (detested act) is itself detested.

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Legal Maxims of Islamic Law: A Brief Introduction

fiqhmaxims

Fiqh or legal maxims of Islamic law (Al-Qawaa’id Al-Fiqhiyyah) is a genre of Islamic sciences that focuses on general rules of fiqh which can be applied to a wide variety of particular situations. In fact, in Muslim countries a student cannot obtain a degree in Islamic sciences from an Islamic university without first having completed a course on this subject (Mohammed, 2005, p. 191). These maxims have been used by Muslim jurists for centuries to give verdicts. They assist in the matter of ijtihad because they organize the branches of fiqh and categorize cases and it is a must for every Muslim jurist to have knowledge of it (Elgariani, 2012, p. 380). This is why some scholars accurately depicted that “were it not for the law maxims, the fiqh rulings would have remained as scattered cases, outwardly discrete without any ideational connection between them” (Mohammed, 2005, p. 191).

There are a number of definitions given for this genre but perhaps the most inclusive one states that it “is an all-inclusive rule based on legal evidence written accurately in comprehensive words, and it includes all or most particles, juz’iyat (cases pertaining to fiqh) which come under it” (Mishkah University, 2013, p. 3). They are often written in short but expressive statements. They tend to express at times the goals and objectives of the Shari’ah and this is why some scholars treat this subject under the category of maqasid (rules and objectives of Shari’ah) (Kamali, Qawa’id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1). For example, one of the maxims states “hardship begets ease”. What it means is that in order for Shari’ah to guarantee itself relevance for all times and places, it never puts individuals in situations where the obligation becomes unbearable for them or makes their life difficult (Elgariani, 2012, pp. 238-239). This is why in Islamic law it is allowed for those traveling to shorten and combine their prayers, break their fast in Ramadan, and wipe over their socks for three days and nights. All of this is permitted to fulfill one of the objectives of Shari’ah to bring ease to the person because travel brings hardship, stress, and difficulty.

Some have suggested that the goals of these maxims are the following (Mishkah University, 2013, p. 31):

1. Simplify and assemble the branches of Islamic law
2. Extract and organize various branches of rulings under one subject to avoid conflicts
3. Assist scholars in deducing replies to contemporary issues
4. Allow scholars to do a comparison between various schools of thought
5. Prove that Islamic law can be incorporated to any place at any time

Kamali expressed it perfectly when he said that these maxims “represent…the apex of cumulative progress” (Kamali, Qawa’id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1) while others said that they “embrace secrets and the wisdom of the Shari’ah” (Mishkah University, 2013, p. 43) and assist in an appropriate understanding of the goals of the Shari’ah (Mohammed, 2005, p. 191).

These maxims are usually extracted from the sources of Shari’ah, both primary (Qur’an, Sunnah, ijmaa, qiyaas) and secondary ones (methods of ijtihad: istislaah, istishaab, etc.) (Elgariani, 2012, p. 379). As for their wordings, they can be excerpts from the Qur’an or hadiths but in most cases “reflect the phraseology of leading jurists and have been refined with the passing of time” (Mohammed, 2005, pp. 193-194). Due to this modification over time, the final wordings of each individual maxim are difficult to trace back to the first individual who uttered it (Elgariani, 2012, p. 60). For example, the maxim “actions are judged by intention” is deduced from the famous hadith about intention in which the Prophet Muhammad (pbuh) said, “Actions are judged by their intentions”, which means that actions in Shari’ah are to be judged by the intentions of the doer behind the acts (Mohammed, 2005, pp. 199-200). So if a person commits murder, then his punishment in Shari’ah is decided based on the intention of the killer. If his intention was to kill the victim, then his punishment is different as opposed to the one who accidentally kills a person or did it in self-defense.

The maxims are purposefully put in precise words in order to make them easy to remember and derive rulings without having to delve deeply into the texts. They are a sort of shortcut to same rulings that can be given and applied in many situations. For example, the maxim mentioned above about actions being judged by intentions can be applied to many circumstances related to worship, business transactions, and criminal law. Similarly, the maxim related to worldly things which states that “in general all things are permissible” can be applied to almost all situations of life. The scholars did an outstanding job of forming these maxims by doing a ”detailed study of several related rulings in order to extrapolate common factors that could be applied to similar matters” (Mohammed, 2005, p. 192). This is why some describe a maxim as “a general rule which applies to all of its related particulars…reflective of a consolidated reading of the fiqh” (Kamali, Qawa’id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1).

The maxims can be used as proof for a judgement in the following four cases (Mishkah University, 2013, p. 33):

1. If the maxim is an exact statement from the Qur’an or Sunnah
2. If the maxim is derived from those proofs which are fully agreed upon (Qur’an, Sunnah, consensus)
3. If the maxim is derived from those proofs that are not fully agreed upon (qiyaas, istishaab, maslahah, ‘urf,), then it can be used as a secondary proof
4. If the maxim was derived from ijtihad, it can also be used as proof

There are also cases when some of the fiqh maxims are not applied:

1. There is a category of fiqh maxims known as dawabit (controllers), which are restricted to a particular chapter or theme of fiqh and are not applied outside of it (Kamali, Legal Maxims and Other Genres of Literature in Islamic Jurisprudence, 2006, p. 82). For example, the fiqh maxim “when the water reaches two qullahs, it does not carry dirt” is restricted to the chapter of cleanliness and is not applied outside of it. Similarly, the maxim “all the dead animals are impure except fish and locusts” is applied only in issues related to eating and drinking and not outside of it.

2. There are maxims on which there is a difference of opinion among the scholars. These differences are of two types: maxims upon which scholars of a particular school are in agreement while not other schools and maxims upon which the scholars of even a particular school are not in agreement (Elahi, 2013). There are also differences among scholars on the application of some of the maxims (Elgariani, 2012, p. 147). Therefore, in such instances a follower of a particular school or scholar may not apply a certain maxim while another will do so. However, there are five maxims which all schools of thought agree on. Some even have suggested that most of the fiqh maxims are just sub-maxims under these major five (Mohammed, 2005, p. 192). These five are as follows:

1. Matters are to be considered in light of their objectives/intentions
2. That which is established with certainty is not removed by doubt
3. The presence of difficulty requires that allowances be made to effect ease
4. Harm shall be removed
5. Cultural usage shall have the weight of law

The maxims allow exceptions and particularizations and at times this is stated vividly within the maxim itself (Mohammed, 2005, p. 193). For example, the maxim mentioned earlier above that “in general all things are permissible”, the exception to this is “unless there is evidence to the contrary”.

legal-maxims-characteristics


Bibliography

Elahi, M. M. (Writer). (2013). Islamic Legal Maxims: Module 1 Video Part b [Motion Picture]. Islamic Online University. Retrieved December 16, 2016, from https://www.islamiconlineuniversity.com/campus/mod/page/view.php?id=23528

Elgariani, F. S. (2012). Al- Qawa’id al-Fiqhiyyah (Islamic Legal Maxims): Concept, Functions, History, Classifications and Application to Contemporary Medical Issues. Exeter: University of Exeter. Retrieved December 14, 2016, from https://ore.exeter.ac.uk/repository/bitstream/handle/10036/4001/ElgarianiF.pdf

Kamali, M. H. (2006). Legal Maxims and Other Genres of Literature in Islamic Jurisprudence. Arab Law Quarterly, 20(1), 77-101. Retrieved December 15, 2016, from http://www.jstor.org/stable/27650538

Kamali, M. H. (n.d.). Qawa’id Al-Fiqh: The Legal Maxims of Islamic Law. The Association of Muslim Lawyers. Retrieved December 14, 2016, from http://www.sunnah.org/fiqh/usul/Kamali_Qawaid_al-Fiqh.pdf

Mishkah University. (2013). Al-Qawa’id Al-Fiqhiyyah (Legal Maxims of Islamic Jurisprudence) A Translated Compilation. Mishkah University. Retrieved December 14, 2016, from http://www.muslim-library.com/dl/books/English_Legal_Maxims_of_Islamic_Jurisprudence.pdf

Mohammed, K. (2005). The Islamic Law Maxims. Islamic Studies, 44(2), 191-207. Retrieved December 14, 2016, from http://www.jstor.org/stable/20838961

Why Muslim Scholars Differ: Notes From Ibn Taymiyyah’s Raf’ al-Malaam ‘an al-A’immah al-Al-A’laam (The Removal of Blame From the Great Imams)

isagreements

I had always wondered why certain scholars, especially the highly reputable ones like the four imams, chose to go against clear authentic hadiths which contradict their opinion(s).  It always bothered me and made me feel a bit uneasy but I could never really figure out why such was the case.  If the Qur’an and Sunnah are one, I would think to myself, then how can there be two or three or four different opinions on an issue?  Alhamdulillah, over the years, it had started to make more and more sense to me.  The more I learned and advanced in Islamic knowledge, the more clear and respect I started to gain for the differences of opinion especially for the scholars who held those opinions.  I realized that they have legitimate and good basis for their opinions.  There are many factors which take place that cause a scholar to affirm or deny an opinion.  No reputable scholar in Islam intentionally goes against a clear and confirmed hadith.

There are a few works written on this issue and are available in the English language, such as, The Differences of the Imams by the famous Hanafi scholar Muhammad Zakariyya Kandhelvi and Differences of Opinion Amongst the Scholars by the famous Hanbali scholar Muhammad ibn ‘Uthaymeen.  Both of these books are good introductory works to read in order to delve deeper into this topic.

However, my most favorite book on this topic [as of yet], is Raf’ al-Malaam ‘an al-A’immah al-Al-A’laam by the legendary scholar Shaykh ul Islam Ibn Taymiyyah and it has been translated into English under the title The Removal of Blame From the Great Imams and can be downloaded.  It is much more comprehensive than the previous two books and is an excellent book to study on the topic.  The reader will come out with intense respect for the intelligence and diligence of Muslim scholars.

In short, he argues that the reputable Muslim scholars are not to be blamed for having differences of opinion and then goes on to provide some reasons as explanation of why they differed.  His intent in the work is to create a good image of the scholars in the mind of the reader and to keep away any evil thoughts about them, hence, the title of the book The Removal of Blame From the Great Imams.  He also provides extensive examples to back up his claims which are very helpful.  It may be a difficult read for someone who has never studied fiqh or usul ul fiqh at a basic level.  The previous two books mentioned above may be better suited for such an individual.

I read Ibn Taymiyyah’s translated book recently and took notes and wanted to share them here, because I find this to be a very important topic in our times.  Confusion over this issue has led to two extreme positions.  On one side, you have the extreme conservatives who think that some of these reputable scholars intentionally went against opposing authentic evidence.  On the other side, you have the extreme liberals who think that these Muslim scholars are just making up opinions out of a hat, therefore, they should not be relied upon.  This is only due to their ignorance over this topic and lack of understanding.  They do not realize the amount of work, pondering, research, and effort that goes into forming these opinions by such scholars.

The notes are below.  I only took notes from his work on what is related to the topic.  Ibn Taymiyyah has a habit of going into long tangents in his works so I avoided that aspect.  May Allah make it beneficial for myself, first and foremost, and anyone who reads it.  I apologize for any mistakes or misunderstandings on my part from his work.


Notes

  1. None of the imams intentionally opposed the Prophet Muhammad (pbuh)
    1. They believe that words of anyone other than the Prophet may be accepted or rejected
  2. If the opinions of any of the accepted imams are found to be in opposition to an authentic hadith, there is a valid excuse for it and generally falls into one of three categories
    1. First Category: Scholar does not believe that the Prophet (pbuh) ever said such a thing. There are various reasons for this
    2. Second Category: Scholar does not think that the hadith is intended to refer to the issue in question
    3. Third Category: Scholar believes that the ruling is abrogated

Reasons for the Differences

  1. Reason 1: The hadith may have never reached him
    1. Hence, he gives a ruling based on a verse of Qur’an or another hadith
    2. It’s not possible for one person to know all of the hadiths
      1. Mujtahaid’s objective should be to know most of the hadiths so that only a few of the details will escape him
    3. This is the most likely reason that is found in the opinions of the pious predecessors (salaf)
      1. Ex: Abu Bakr did not know the inheritance of the grandmother even though he spent so much time with the Prophet and Umar didn’t know the Sunnah on seeking permission before entering a house. Similar examples are there from Uthman and Ali’s lives.
        1. Those less knowledgeable than them had the hadiths with them and told them about it
        2. If this was the case with the Sahabah, the most knowledgeable, then what of those in later generations?
    4. The collections of hadiths that were compiled came after these imams
  2. Reason 2: The hadith reached the Mujtahid but not authentically
    1. But it may have reached other imams authentically
      1. Ex: the hadith reaches one Mujtahid with a broken chain but to another with an unbroken chain
    2. It may be that the Mujtahaid thinks the hadith is not authentic but it actually is
      1. Ex: he considers someone in the chain as unknown but he is known to another imam
    3. This reason was common among the Tabi’een and the Tabi’ Tabi’een up to the time of the well-known imams
      1. Because hadiths had spread wide by then and to some they reached authentically while to others they did not
      2. This is why the imams in this era would say if a hadith reaches them authentically, they would change their ruling on a matter
  3. Reason 3: The scholar makes ijtihaad and declares the hadith weak
    1. But another scholar’s ijtihaad may conclude it to be authentic
      1. Reasons
        1. One scholar considers a particular transmitter in the hadith as not trustworthy while another scholar disagrees
        2. One scholar does not believe that the transmitter heard the hadith from the narrator he is transmitting from while another scholar disagrees
        3. One scholar thinks that a particular narrator transmitted the hadith in a state of confusion [he may have lost his books, he became confused later in age, etc.] while another scholar disagrees and believes the narrator reported the hadith in his sound state
        4. Transmitter forgets that he related a particular hadith and is unable to remember it at a later date or denies that he ever related such a hadith. This causes one scholar to deny the hadith considering it defective while another scholar still accepts it and does not consider it defective
        5. Many Hijaazi scholars held the view that unless a hadith originated in Hijaaz, it should not be cited as evidence. Hence, they did not accept hadiths that originated in Iraq or Shaam.
          1. Because they thought that the Hijaazi people had mastered the Sunnah so that not a single hadith had escaped them and they looked at hadiths originating in Iraq or Shaam with suspicion
            1. Some of the Iraqi scholars thought the same about hadiths originating in Shaam
            2. Ibn Taymiyyah points out that most people of knowledge don’t use this criteria as a basis to weaken hadiths. He further says that the hadiths should be accepted as long as its chain of narrators is sound no matter where it originated from.
        6. There are other reasons as well, Ibn Taymiyyah points out, but does not mention them.
  4. Reason 4: One scholar stipulates certain conditions for the acceptance of a hadith while another scholar opposes him because he does not accept such conditions
    1. Examples
      1. Some say the hadith must be compared to what is in the Qur’an and established Sunnah
      2. Some say that the transmitter must be a jurist if his narration contradicts that which can be deduced through textual principles
      3. Some say that the narration of the hadith needs to be widespread and known if it deals with an issue known to have occurred frequently at the time of the Prophet
      4. There are other conditions placed as well which Ibn Taymiyyah does not mention
  5. Reason 5: The hadith reaches the scholar authentically but he has forgotten about it.
    1. Ex: When Umar gave a fatwa saying that a person in a state of major ritual impurity must not pray until he finds water. Then ‘Ammar reminded him of the hadith in which prophet allowed Umar and ‘Ammar to do Tayammum in such a case
      1. After this reminder Umar still could not recall the incident
    2. Such incidents frequently occur among the early and later scholars
  6. Reason 6: The scholar does not know the implication of the concerned hadith
    1. Reasons
      1. The scholar is unfamiliar with a particular term mentioned in the hadith or he disagrees with other scholars with regards to its meaning
        1. Ex: the word ighlaaq. Scholars differed as to what it means
      2. The scholar understands a particular term in the hadith in a way which is common in his own custom and dialect; however, it was understood differently at the Prophet’s time
        1. Usually because he views that a word retains its original meaning until proven otherwise
        2. Ex: some thought the word khamr in the Qur’an and Sunnah refers to intoxicants made from grapes only because this was what it meant in their own dialect. But there are hadiths which clarify that its meaning refers to every type of intoxicating drink
      3. Certain terms in the Qur’an and hadiths can be homonyms, ambivalent in their meanings, or hovering between the literal and the metaphorical. So the scholar takes what he thinks is the nearest to the intended meaning but is wrong
        1. Ex:
          1. The companion who thought the white and black thread in the Qur’anic verse about beginning the fast was literal but it was only metaphorical
          2. The scholars who understand the word hands in the verse dealing with dry ablution (tayammum) to mean entire arm up to the armpit
        2. Sometimes the hadith’s import is obscure
          1. Indications that can be drawn from a statement are very diverse and people differ in their ability to comprehend them
            1. Ex: a scholar might know the general implication of a text but he might not recognize that this specific case is included within that general context
              1. Or he may have realized it but had forgotten later on
        3. It is also possible that a person commits a mistake by deriving from a statement what is not conceivable within the Arabic language with which the Prophet (peace be on him) was sent
  7. Reason 7: Scholar thinks that the hadith does not carry any specific implication
    1. The difference between this reason and the one before it is that in the previous [instance] the scholar did not know that specific implication whereas in this reason he knows the specific implication but believes that it ought not to be applied based on some principles he had which invalidated that implication, regardless of whether he was in reality right or wrong.
      1. Ex: scholar believes that the specified general text is not a valid proof, or that the implication is not a valid proof, or that a general ruling established for a specific cause is applied only where that cause exists, or that a general imperative does not necessitate obligation or immediate compliance, or that the alif and laam [constituents of the Arabic definite article] do not denote generality, or that negated verbs neither negate its essence nor all of its rulings, etc.
    2. Half of the disputes arisen in usul ul fiqh fall under this field [of implications]
  8. Reason 8: The scholar deems that implication of the text to be opposed by something indicating that it could not have been so intended
    1. Ex: general term being opposed by a specific one, an absolute term (al-mutlaq) by a qualified one (al-muqayyad), an absolute imperative by that which negates it, or the literal (al-haqiqah) one by that which indicates a metaphor (al-majaz), and so on.
  9. Reason 9: The scholar thinks that the hadith is opposed by contrary evidence which is accepted by all scholars, such as a Qur’anic verse, another hadith, or consensus, thereby indicating the hadith’s weakness, abrogation, or interpretation if it is amenable to interpretation
    1. Two types
      1. The scholar believes that the contrary evidence is preferable (rajih) in general, leading to one of the three possibilities without specifying any one of them
        1. Weakening of the hadith
        2. Its abrogation
        3. Its interpretation away from the undesirable meaning
      2. The scholar specifies one of the three possibilities mentioned above
        1. He may err though
          1. There is the possibility, however, that he might commit a mistake regarding the abrogation by considering the later evidence to be the earlier one
          2. He might err in interpretation by understanding the hadith in a way which its wording does not permit, or where there is something extraneous which rules out that interpretation
          3. It is possible that the opposing hadith is not equal in strength to the first one in terms of the authenticity of its chain of transmitters and the clarity of its text (matn)
        2. In most cases, the claim of a consensus is actually no more than the absence of knowledge about any opposing opinion
          1. This is due to the fact that the ultimate aim for many scholars is to know the opinions of the scholars who were their contemporaries within their region while not knowing the opinions of other scholars
            1. Some knew opinions of only the Medinan or Kufan scholars while not others
            2. Some knew only 2-3 reputable scholars’ opinions and not others so they thought it was a consensus
          2. Fearing to go against the consensus or believing that they may be going against the consensus led many scholars to not adhere to the obvious import of the evidence [in some cases]
  10. Reason 10: The scholar thinks the hadith was opposed by evidence indicating the hadith’s weakness, abrogation, or contrary interpretation, whereas his view that this is a contrary evidence is not shared by other scholars, or even by those who belong to his group, or the contrary evidence is not in reality the prevalent one
    1. Ex: Kufans who, when an authentic hadith is opposed by the apparent meaning of a Qur’anic text, believe that the apparent Qur’anic text, such as one expressing generality, is given preference over the explicit meaning of a hadith
    2. Sometimes a scholar might consider something to be apparent which is not in reality apparent; this is because there are many potential implications of a statement

Other Issues

  1. It is possible in many cases that the scholar has a proof for not acting upon a hadith which we are not aware of because the ways of comprehending knowledge are manifold and we cannot know all of what is in the hearts of the scholars
    1. But it is not permitted for us to follow this opinion in light of an opinion that is established with an authentic hadith and is followed by some people of knowledge
      1. Because the opinion of the scholar whose evidence is unknown may be wrong
    2. Hence, he may have a valid excuse for not following the Shari’ evidence
  2. The Mujtahid, despite his error, is rewarded because of his ijtihad and his mistake is forgiven due to the fact that arriving at the correct opinion on every occasion is either impossible or highly unlikely
  3. Three possibilities for one who did not act in accordance to a given hadith. Either:
    1. His leaving the hadith was permissible
      1. For example, he was unaware of it
    2. His leaving the hadith was not permissible.
      1. This is unlikely for the great imams. They would not leave a hadith unless due to a legitimate reason
    3. He gave an opinion without fully comprehending the issue
      1. He may be deficient in his deduction so he concludes without an evidence though he may have used some sort of ijtihaad
        1. He may be influenced by a custom or predisposition
        2. He may have not taken his reasoning to its appropriate conclusion
  4. Scholars sometimes disagree whether a given hadith is explicit (nass) or apparent (zaahir) in its implication
  5. Conceivable interpretation of the texts plays a role in differences as well
  6. Some scholars differed whether a certain action was totally forbidden or just disliked
  7. If a scholar has a reasonable interpretation for a hadith, then it cannot be said that he will be liable for the punishment stated in the hadith
    1. Ex: a hadith says such and such should not be done else will be punished in the afterlife but scholar allows that action based on interpreting the hadith differently
    2. For the punishment to apply, there must be absence of all conditions which prevent the blame from taking place (evidence never reached the scholar, he misunderstood something, etc.) and the absence of all the impediments (repentance, doing good deeds which remove bad deeds, Allah’s Mercy, trials and tribulations in life which may make up for it, etc.)
      1. It may apply to those who were aware
        1. It’s case by case basis [my comment]
  8. Majority of the Salaf say that Allah has only one [correct] ruling with regard to any given issue and the one who differs from this position based on an acceptable piece of ijtihad is mistaken, excused, and rewarded
  9. Whenever it is possible for a person to know the truth and he falls short, he is not to be excused
    1. Those who fall short in their ijtihad due to invalid reasons or those who imitate with a standard that could not make the action permissible could be liable to punishment in the hereafter
      1. Unless there are other impediments which may remove it (repentance, good deeds which remove bad ones, etc.)
      2. If however he sought the truth [to the best of his ability] and did not leave it to his own desires, then Allah does not burden a soul beyond what it can bear
    2. Those who practice legitimate ijtihaad are not included under this because they have a valid excuse, rather, they will be rewarded for their ijtihad even when wrong
  10. In disputed matters, it is not allowed to say that specific people are cursed under the threat of punishment mentioned in certain hadiths because there may be impediments which prevent the threat and/or punishment from them (repentance, good deeds erasing bad ones, etc.)
    1. Ex: a hadith says those who do such and such are cursed but you find a scholar who allows that action. It may be that the scholar interprets that hadith differently [based on sound evidence] or if the doer is a layman, he might repent or his good deeds outweigh his bad ones or tribulations in his life might remove that sin from him or Allah may have mercy on him, etc.  These impediments could apply to the mujtahid as well.
    2. Hadiths which speak about cursing those who perform certain actions are to be understood in general terms and not specific. So we say those who do such acts are under the threat mentioned in the hadith but we don’t specify certain people individually of being guilty of the curse because the curse may not apply to them due to absence of certain conditions (ex: the knowledge did not reach him) or presence of certain impediments (ex: repentance, Allah’s Mercy, good deeds remove bad deeds, etc.).

How Muslim Scholars Deal With Perceived Contradictions in Islamic Texts

Following is what I gathered from the notes of Sh. Riaz Ansary that he provided to us during a lecture on Usul-ul-Fiqh (Fundamentals of Islamic Jurisprudence) at IOU.  I found it quite enlightening and thought it would be useful for many students of this sacred knowledge.  What follows are his notes (mostly) and a few of my own comments where I felt clarification was needed.

Methodology of the Majority of Scholars of Islam

The perspective that guides each step of the process [for them] is maintaining the validity and viability of the evidence as far and as much as possible.

  1. Reconciling where possible – the justification is that the Lawgiver only provided the evidence in order to guide humanity to the rules He intends for them; therefore, to use all the evidence on an issue is preferable to rejecting some of it; and it is the best method for preserving the Shari’ah from charges of imperfection.  Therefore, if two seemingly contradictory pieces of evidence from the text can be understood in a way where both can be harmoniously followed, it is the first and most preferred way for the majority.
  2. Tarjih where possible – to give preponderance to one evidence over another, to consider it weightier. That is because the evidence which is overridden can be resurrected under changing circumstances; for example, the position that stoning the Jamaraat before the zenith during the Days of Tashreeq [at the pilgrimage to Mecca] is lawful, based upon the lack of stipulation of a specific time by the Lawgiver is worthy of resurrection in an era of intense crowding; whereas previously, precedence was given to the practice of the Prophet (pbuh), i.e., he stoned each day after the zenith.
  3. Naskh (Abrogation) – it comes after the first two choices above cannot be applied because the abrogated evidence is permanently disabled.  It is determined through chronology of the evidence.  The earlier text is abrogated by the later text.
  4. Disqualifying both pieces of evidence – it comes [as a] last [resort], because it causes the permanent loss of the two pieces of conflicting evidence. In such circumstances, one returns to the starting assumption (al-bara’ah al-asliyyah – everything is allowed unless evidence that it is prohibited [in worldly matters], there is no obligation unless there is evidence to indicate that it is so, etc.)

Methodology of the Hanafis

  1. Naskh – Unlike the majority, they turn to it first.  Their reasoning is that, if you know the date, you have to go with the later of the two  evidence.  They say that this was the practice of the companions of the Prophet (pbuh).
  2. Tarjih – When it is impossible to determine the dates of the evidence, they turn to tarjih. The argument they use to give it precedence over reconciliation is that all rational people agree that a weaker evidence cannot be treated on a par with a stronger evidence; therefore tarjih is warranted.  The majority’s response to the Hanafis: One compares the relative strength of two pieces of evidence to disqualify one of them when they conflict; but if it can be shown that they do not conflict, then there is no need for that.
  3. Reconciliation – Same concept as discussed in the section of the majority
  4. Disqualifying both pieces of evidence – Same concept as discussed in the section of the majority

Methodology of Some Hadith Scholars

  1. Reconciliation
  2. Naskh
  3. Tarjih
  4. Disqualifying both pieces of evidence

The Role of ‘Urf (Custom) in Islamic Law

culture

Islamic law is primarily derived from the Qur’an and Sunnah according to the consensus of the Muslim scholars.  However, there is a difference of opinion among the scholars on how to approach issues that are not explicitly and directly mentioned in these two sources.  In other words, there is no indication from the Qur’an and Sunnah on how to approach the issue.  This opens the door for ijtihaad, for a highly qualified group of scholars, to give rulings on these issues based on principles derived from the two primary sources and to utilize secondary sources, as a form of tool, in deriving Islamic law.  The authority of these secondary sources in deriving Islamic law is disputed among the scholars.  Therefore, a scholar may reject a particular secondary source while accepting another and so on.  ‘Urf (Custom) is among these disputed secondary sources.  Mohammad Hashim Kamali defines ‘urf as “recurring practices that are acceptable to people of sound nature.”[1]  Hence, this definition will exclude “recurring practices among some people in which there is no benefit or which partake of prejudice and corruption.”[2]  One of the reasons for the scholars’ hesitancy in accepting ‘urf as a proof is because of its instability.  It can change based on time and place at any given period.  This means a ruling of Islamic law will not be constant but changing based on time and place.[3]  However, the scholars, in general, have adopted it in one form or another and have based rulings on it.

The Proof of ‘Urf

Mohammad Hashim Kamali states, “The Shari’ah has, in principle, accredited approved custom as a valid ground in the determination of its rules relating to halal and haram.”[4]  There is no explicit text in the Qur’an and Sunnah which tells us that ‘urf is allowed to be used as proof in Islamic law, however, we do have certain implications from the Prophet (pbuh) and his companions that show the permissibility of its usage.  For example, some of the companions used to practice a type of birth control popular in that period called ‘azl:

We used to practice coitus interruptus (‘azl) during the lifetime of Allah’s Messenger (pbuh) while the Qur’an was being revealed.”[5]

This report signifies that the Prophet approved of this custom among those not wanting to have children.  For if it was wrong, Allah would have sent down a command through His Prophet prohibiting this practice in Islam.

At other times, Islam allowed a custom to be practiced but put conditions on it in order to bring “them into line with the principles of the Shari’ah.”  Slavery is an example of such a custom.  Before Islam, slaves were treated like animals and there was no compassion or value for them.  When Islam came into the picture, it allowed the custom of slavery to continue, though strongly encouraging to free them, but it put certain rules in place to regulate their treatment. For example, the Prophet Muhammad (pbuh) is reported to have said, “It is essential to feed the slave, clothe him (properly) and not burden him with work which is beyond his power.”[6]

There were also times in which Islam wanted to completely eradicate a particular custom.  In such instances, either Allah would send down a verse from the Qur’an or the Prophet (pbuh) would state a hadith prohibiting such custom.  An example of this is when Allah commanded His Messenger (pbuh) to marry the divorcee of his adopted son Zayd.  In the Arabian culture at that time, an adopted son was considered the same as a real son; hence, the father marrying his adopted son’s ex-wife was inconceivable.  However, Allah wanted to show that there is nothing wrong with this practice because they are not their blood relatives through the example of His Messenger (pbuh).  So, Allah sent down the following:

When Zayd had no longer any need for her, We married her to you in order that there not be upon the believers any discomfort concerning the wives of their adopted sons when they no longer have need of them. (Qur’an 33:37)

What all of the above shows us is that “The basic principle with regard to customs is that they are permissible, unless it is narrated in sharee’ah that they are forbidden”[7] or regulated.  And this is rightly so because in general, asking people to go against the custom, which neither constitutes oppression, corruption, lewdness, etc., is a form of hardship on them which is not one of the aims of Shari’ah as Allah stated in the Qur’an, “Allah intends for you ease and does not intend for you hardship.” (Qur’an 2:185)

Types of ‘Urf

‘Urf is divided into several categories and subcategories.

The first two categories are the general divisions which cover all other subcategories:

Approved or Valid Custom (al-‘urf al-sahih)–   “One which is observed by the people at large without there being any indication in the Shari’ah that it contravenes any of its principles.”[8]

Disapproved Custom (al-‘urf al-fasid) – “Also practiced by the people but there is evidence to show that it is repugnant to the principles of Shari’ah.”[9]

The approved custom category above is divided into two types:

Verbal (qawli) – “Consists of the general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning.  As a result…the customary meaning tends to become dominant…the original or literal meaning is reduced to the status of an exception.”[10]  Examples of this are the words salah, zakah, hajj, etc.  They are understood based on their custom meanings and not their literal meanings.

Actual (fi’li) – “Consists of commonly recurrent practices that are accepted by the people.”[11]

The two categories above are each subdivided into two types:

General ‘Urf (al-‘urf al-‘aam) – “One which is prevalent everywhere and on which the people agree regardless of the passage of time.”[12]

Special ‘Urf (al-‘urf al-khaas) – “[It] is prevalent in a particular locality, profession or trade…it is not a requirement…that it be accepted by people everywhere.”[13]

Conditions of Valid ‘Urf

Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which Islamic law may be derived:[14]

  1. Custom must be a common and recurrent occurrence.  It must be dominant to the point that it is upheld in most of the cases to which it applies, otherwise, it does not hold any authority. Also, the practice of a few people in a large community is not sufficient; rather, it must be a regular occurrence among the masses.
  2. In contracts and commercial transactions, custom must still be in existence at the time of the conclusion of the transaction.
  3. Custom must not violate a clear stipulation of an agreement. Contractual agreements take preference over custom. Latter will only be resorted to in absence of the former.
  4. Custom must not go against the definitive principles (nass) of Islamic law.  If it does so, custom will be given no consideration.  In case “the custom opposes only certain aspects of the text, then custom is allowed to act as a limiting factor on the text.”[15]

 

Bibliography

Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. Cambridge: The Islamic Texts Society, 2003.


[1] Kamali, Pg. 369

[2] Ibid

[3] Ibid, Pg. 380

[4] Kamali, Pg. 371

[5] Bukhari Book 67, Hadith 142

[6] Muslim Book 27, Hadith 64

[8] Kamali, Pg. 378

[9] Ibid

[10] Kamali, Pg. 376

[11] Ibid, Pg. 377

[12] Ibid

[13] Ibid

[14] Ibid, Pg. 373-374

[15] Ibid, Pg. 374