Understanding Usul Al-Fiqh by Abu Tariq Hilal - Abu Ismael al-Beirawi

The word Madhab means “school of Fiqh”. The following are some of the reasons for the existence of Madhahib (schools of Fiqh).

One Mujtahid may consider a certain Hadith authentic while others may not. This is due to their differences in the criteria for judging the authenticity of the Hadith.

Example:

The Hadith narrated by Amr b. Shuaib which mentions: “A woman came to the Prophet (saw) along with her child with two gold bracelets in her hand. He (saw) said: „Do you give the Zakat upon these?‟ She said: „No.‟ He (saw) said: „Would you like that Allah makes them into bracelets of Fire?‟” Some scholars consider this to be an authentic Hadith, while others consider it a weak Hadith due to the weakness in the Isnad. The scholars who said that there is no Zakah on jewellery are Aisha bint Abu Bakr (ra) Imam Jabir, Ibn Umar, Imam Malik, Imam Ahmad and Imam Shafi‟i.

Furthermore, one Mujtahid may know of a Hadith while another may not. It is due to this reason that the Mujtahideen used to say to their students, if you find a Hadith after you leave me, and it contradicts what I have told you, throw away my understanding and follow the Hadith.

Example: It is not permitted for a woman while she is menstruating to perform Tawaaf (circling around the Ka‟aba). Based on this, Umar (ra) used to forbid women from completing the Hajj even if the menstruating started after leaving Arafat, which is the most important part of the Hajj. When he (ra) was informed that the Prophet (saw) used to allow women to continue performing Hajj under similar situations, Umar (ra) subsequently lifted the ban, and allowed the woman to complete her Hajj.

Some scholars accepted the opinion of one Sahabi as a legislative source, while others treated the Sahabah (ra) as Mujtahids whose individual opinions were not legally binding.

Some scholars practiced Qiyas (see section 6.0) while others practiced Istihsan (see section 7.5).

Some scholars used Ijma‟ as-Sahabah only, while others used Ijma‟ Ahlel Madinah (People of Madinah), Ijma‟ Al-Mujtahideen, and various other types of Ijma‟ as well as discussed earlier.

Some Scholars used Maslahah Mursalah and other non definitive principles while others did not. This contributed to more differences among the scholars.

Some scholars took the literal understanding of the text, meaning that they took the text at its surface value, refusing to take deeper understandings. Some of these scholars were called Zahiris, or those who took only the apparent meanings of the texts.

In addition to the apparent meaning, some Scholars took deeper and implicit meanings in the texts.

There were differences in interpreting the forms and types of commands. For example, in the Hadith regarding the beard, there is a difference of opinion among the Scholars regarding whether the Hadith indicates Fard, Mandub or Mubah commands. For example, Ibn Taymiyya and Ibn Hazm said it is Fard. Ibn Qudamah, Shawkani, an-Nawawi and Qadi Iyad said it is recommended. Qadi Abu Bakr Ibn al-Arabi and Imam Qurtubi‟s opinion was that it is only permitted.

This may be due to a different understanding of the Arabic text where it offers more than one meaning. As an example, Allah (swt) says in the Qur‟an, in translation: “The divorced woman should wait for a period of three Quru” (TMQ Al-Baqarah: 228)

Quru‟ linguistically could mean the beginning of the menstruation period, and it could also mean the beginning of the purity period. The difference between these three Quru‟s from the beginning of menstruation and three Quru‟s from the beginning of the purity period is about 7 to 15 days.

Some scholars say Quru‟ means the purity period because of a Hadith in which the Prophet (saw) instructed a woman to wait for the purity period. Other Scholars say that this Hadith is not authentic considered the Qur‟an to mean the beginning of menstruation.

Besides all of this, one has to remember that the level of understanding of the text and the depth of thinking varies from one individual to another. These differences are a natural aspect of Allah‟s creation and a mercy from Him (swt).

It is for these reasons that we have different scholars forming different Schools of Fiqh. Some of these scholars had students who wrote their understanding of the text and these writings were considered as their Madhahib. These include Abu Hanifah, Malik, Shafi‟i, Ibn Hanbal, Jafar, and Zayd. Other scholars did not have the opportunity of having students write their understanding of the text, and these include Al-Awza'i, al-Hasan al-Basri, Sufyan al-Thawri, Ibn Jarir al-Tabari, Laith and others.

These examples illustrate that there have always been differences of opinion. The Sahabah (ra), Tabi‟een and Tab‟e Tabi‟een bear witness to this fact. The Mujtahidun Mutlaq differed in their methodology, which led to the birth of different schools of Fiqh. Although the Mujtahideen were most convinced by the Ijtihad they performed, they nevertheless recognised the possibility that they could be wrong. Accordingly, the Mujtahideen have stated that whatever is correct in their work is from Allah (swt) and the errors are from themselves.

However, just because a Mujtahid is wrong, it does not mean that he should be barred from exercising Ijtihad. On the contrary, the Messenger of Allah (saw) said, „Amr b. al-„Aas and Abu Hurayrah narrated that the Messenger (saw) said:

“If a judge passes judgment and makes Ijtihad and he is right then he will have two rewards. And if he makes a mistake he will have one.” (Bukhari & Muslim)

There is also a severe punishment for those who do Ijtihad without being qualified to do so, even if they are right. Allah (swt) says:

“.... pursue not that about which you have no knowledge; for surely the hearing, the sight, the heart, all of those will be called to account (on the Day of Judgment)” (TMQ al-Isra: 36)

One should not consider another opinion as being un-Islamic simply because it is different from the opinion that he has adopted. Instead, respect must be given to other opinion on the one condition that they are based on Islamic evidences. There is no need to respect opinions, which are not based upon a Daleel because there is no place in Islam for these opinions.

Therefore, it is necessary for every scholar to produce his Daleel in support of an opinion. This is to instil confidence in Muslims that his opinion is Islamic. Opinions given without evidence are baseless and should be rejected.

This view towards other Islamic opinions will ensure the correct Islamic attitude. However, this measure alone will not provide the total answer to the problems we face today, especially to the problems of unifying Muslims on certain key issues.

There will be many different opinions as to what the Hukm Shar‟i is. In many instances this will not be a problem. However, one can imagine where it is necessary for the Ummah to be united under one opinion; e.g. sighting the moon for the beginning of Ramadhan, electing the Khaleefah, etc.

Ijma‟ as-Sahabah has established that the Khaleefah has the authority to adopt certain rules and to enact them. The Shar‟i principles state:

“The Imam‟s decree settles the disagreement” “The Imam‟s decree is executed openly and privately.” All Muslims including the Mujtahideen have to follow the opinion adopted by the Khaleefah, but they can maintain their opinion and teach it, while their obedience should be to the opinion that the Khaleefah adopts.

An example of this is the adoption of an opinion in the distribution of funds by Abu Bakr (ra) and Umar (ra). When Abu Bakr (ra) was the Khaleefah, he paid equal grants to all of the Sahabah (ra). He (ra) did not distinguish between the early Muslims and the new Muslims. When the Islamic State started receiving larger funds through the liberation of various lands, Abu Bakr (ra) continues to distribute the wealth equally. Umar (ra) and some of the Sahabah (ra) insisted that the earliest Muslims should be given preference over the later converts. Abu Bakr (ra) told him that he was aware of the differences that Umar (ra) had mentioned; however, his opinion was that distributing the funds equally was better in the sight of Allah (swt) than the principle of preference. When Umar (ra) became Khaleefah, he replaced Abu Bakr‟s (ra) adoption of equality with his principle of preference. Umar (ra) did not like to pay the same amount to those who fought against the Prophet (saw) and those who fought with him. Accordingly, he gave a larger amount to the early Sahabah (ra) who fought in Badr and Uhud and the relatives of the Prophet (saw).

Thus, when Abu Bakr (ra) was the Khaleefah, Umar (ra) left his understanding and enacted the decree of Abu Bakr (ra), as did the judges, governors, and all Muslims. However, when Umar (ra) became the Khaleefah, he obliged the enactment of his opinion and the others implemented it.

Different opinions should not be viewed as a weakness or a source of disunity. As we have seen, Muslims have had varying opinions in many issues since the time of the Messenger of Allah (saw), as is mentioned in the Hadith of Banu Quraydhah. As long as the opinion is based on Islamic evidence, and this opinion does not contradict an assured law, it should be respected as an Islamic opinion.

Finally, the way to achieve Islamic unity is not by suppressing different opinions and calling for the abandonment of Madhahib. Rather, it is achieved by Muslims living under the ideological leadership of Islam where the Khilafah makes the decision of which opinion to adopt in key issues.