Diversity and Ikhtilaf in the Shari�ah

Bi ismillahir rahmanir raheem

assalamu alaikum

The Scope of Diversity and Ikhtilaf (Juristic Disagreement) in the Shari�ah

By Dr. Muhammed Hashim Kamali

The Relative Value Of Ikhtilaf

It is due mainly to the recognition and tolerance of disagreement among the �Ulama over juristic issues that Islamic law is often described as a diversity within unity: that is, unity as regards basic principles, and diversity regarding details. A tangible manifestation of ikhtilaf in Islamic law is the prevalence of at least five different schools of jurisprudence which have survived to this day and have followers throughout the Muslim world. Islamic law has in fact nurtured a rich tradition of diversity and disagreement just as it has remained open to the influence of other legal traditions.

Having said this, however, we need to view ikhtilaf in conjunction with two other principles of Islam, namely tawhid, that is, belief in the oneness of God and the far-reaching Unitarian influence that it has on Islamic thought and institutions. Tawhid is the first article of the Muslim faith and a major theme of the Qur�an. There is only one God. Likewise, there is one Islam, one scripture, (i.e. the Qur�an) and one ummah (community) and one Shari�ah. A symbolic manifestation of this unity in faith is also evident from the fact that all Muslims pray in the direction of the Ka�bah. Unity in the essence of belief is not open to any level of compromise or ikhtilaf. The Qur�an (21:92) declares Muslims as one nation -ummatan wahidatan-which is at once the witness and guardian of its own unity in faith, and this is also true of the Shari�ah. We may have different schools and madhahibs, all incorporating equally valid yet different versions of the Shari�ah, but this level of plurality does not alter the fact that there is only one Shari�ah, which is manifested in the clear textual injunctions of the Qur�an and Sunnah. The madhahib that have emerged and survived in the course of centuries are the schools of Fiqh which have interpreted the Shari�ah in the light of the needs and realities of their time. None has claimed to be a Shari�ah unto itself, but interpretations of the same Shari�ah that is shared by all.

Fiqh has been defined as knowledge of the practical rules of the Shari�ah pertaining to the conduct of a competent person (mukallaf), a knowledge that is derived from the detailed evidence (adillah tafsiliyyah)in the sources of the Shari�ah. This definition is self-explanatory on the point that Fiqh is primarily concerned with the practicalities of conduct, and not with the essence of belief; it is also clear that Fiqh isneither coterminous, nor identical, with the Shari�ah. It is a part of the Shari�ah, the part which is concerned with practical legal rules. In point of fact, the Shari�ah iswider than Fiqh as it comprises in its scope not only practical legal rules, but also dogmatic theology (�ilm al-�aqa�id), and moral teachings (�ilm al-akhlaq). The definition of Fiqh also tells us that the rules of Fiqh are derived from a detailed study and interpretation of the evidence that is found in the Qur�an and Sunnah. Fiqh isthus a derived knowledge; it is neither totally original, nor entirely based on personal opinion.{1}

The comments that I have made so far are meant to place ikhtilaf in its proper perspective. Ikhtilaf basically operates in the realm of Fiqh. The dogma of Islam and its moral teachings are not open to ikhtilaf. Even the slightest level of disagreement over the normative validity of belief in the essentials of the faith, its five pillars, for example, and the essence of moral virtue is not tolerated and the �ulama have spoken in no uncertain terms on this. The Unitarian (tawhidi)outlook and philosophy of Islam is truly very strong, but people tend to notice disagreement more often than consonance and agreement. It is also worth mentioning, perhaps, that in recent times we have seen signs of a gradual strengthening of the voice of unity among Muslims. There were times, for example, when the schools of law during the era of imitation -taqlid- were emphatic about their own identity to the extent of occasionally making a self-righteous assertion of their own interpretations of the Shari�ah. But it is interesting to note that many a prominent Sunni jurist of the present century writes on the juristic legacy of the Shi�i �ulama and appreciates their contributions in the spirit of objectivity and acceptance. Note, for example, the late Muhammad Abu Zahrah, a well-known jurist and a prolific writer on Fiqh and on the contributions of the major fuqaha� of Islam, wrote a book on the life and works of the Shi�ite Imam, Ja�far al-Sadiq, and his contributions to the legacy of Islamic scholarship. The voluminous Fiqh encyclopaedias that have appeared in the later part of this century have also adopted the same catholicity of spirit: The subject arrangement therein is alphabetical and their contents are not confined to the views of only the four leading Sunni schools of Islamic law, but also include the views of the Shi�ah Imamiyyah, the Zahiriyyah, the Zaydiyyah and the Ibadiyyah. The academic style and content of the information that is recorded in several of these valuable works bears no obvious vestige of the narrow scholastic bias of the earlier times.{2}

Ikhtilaf and Ijma�

As we have already noted, ikhtilaf is accepted at the level of juristic interpretation only, and I shall presently elaborate on its origins and causes, but even at this level the two competing concepts of ijma�  (the Consensus of the Scholars) and ikhtilaf need to be seen together, as the one evidently limits the intensity and scope of the other. I would have no difficulty in providing a ready answer to the question as to which of these two carries greater authority and weight. For we know that ijma� commands normative validity as a proof and source of Islamic law, next to the Qur�an and the Sunnah.

Notwithstanding the difficulties that we now face over the feasibility of ijma�, in theory at least, it is the only binding proof next to the nusus (textual injunctions) that is known to Islamic jurisprudence. Ijma� essentially embodies the collective conscience of the Muslim community, their agreement and undivided consensus over the correct interpretation of the text and propriety in ijtihad. An individual opinion and ijtihad, however authoritative and sound, is not binding on anyone, and everyone enjoys the liberty to have an opinion, and so disagreement is naturally expected before an ijma� materialises over a particular ruling. For ijtihad can hardly be visualised without disagreement and it is, in this sense, another name for ikhtilaf. But ikhtilaf, which is acceptable at this level, must meet two basic requirements, one of which is that each of the opposing views is based on valid evidence, and the other that none of the opposing views leads to what is unfeasible, or entirely unrealistic. Disagreements which fail to meet these requirements have no credibility and should be abandoned{3}. These two conditions also differentiate ikhtilaf from what is known as khilaf, that is unreasonable disagreement. It thus appears that ikhtilaf must have a basis in ijtihad in that it is supported by valid evidence.

A great deal of what is known by the name of ijma� begins with ijtihad, and disagreement in ijtihad isnot only tolerated but considered to be beneficial. If the issue over which ijtihad isexercised is important to the community as a whole, then it calls for general consideration and scrutiny by the �ulama and mujtahidin. Two possibilities can then be envisaged: the individual mujtahid isnot supported by ijma�, in which case it remains an isolated opinion, or else it is elevated to the rank of ijma� when general consensus materialises In its support. In this process ikhtilaf is tolerated as a matter of principle and no one is entitled to pressurise a scholar, a jurist or a mujtahid so as to prevent him from expressing opinions in accordance with his true convictions. But when there is general consensus over a particular ruling ikhtilaf must come to an end, and-the scholar or mujtahid who might have a different opinion is expected, like everyone else, to abandon his opinion and follow the ruling of ijma�. This is precisely what is meant when we say that ijma� is a binding proof. The raison d��tre of ijma� is clearly to put an end to ikhtilaf and ultimately to vindicate the outlook and spirit of unity that is of central importance in Islam.

Causes Of Ikhtilaf

Disagreements among the �Ulama are caused by a variety of factors which may be summarised into three: (1) disagreement over linguistic matters that relates to the understanding and interpretation of the relevant text; (2) disagreement over the knowledge and authenticity of ahadith relevant to a subject; and (3) disagreement over the proofs and principles of Usul al-Fiqh. The first of these, that is, differences over interpretation was known during the lifetime of the Prophet, and those questions which were brought to his attention were clarified by the Prophet himself. But the �Ulama have noted numerous instances in the text of the Qur�an and Sunnah on which no clear information is recorded from the Prophet (peace be on him) or the Companions and the matter therefore remained subject to interpretation and ikhtilaf. Outside the definitive injunctions of the Qur�an, in the areas of speculative and general (zanni and �amm) rulings of the text, they still remain open to interpretation even if they have received an interpretation in the valid precedent. It may be stated as a matter of principle that disagreement is not valid over clear and decisive texts of the Qur�an and Sunnah. But as we have. noted above the Qur�an contains words and sentences that remain open to interpretation. Disagreements over the meaning of a word may be due to the occurrence of homonyms which carry more than one meaning. The word quru� (2:228), for example, has more than one meaning. The text in question is concerned with the waiting period (�iddah)of a divorced woman, which she must observe before she marries again. Her �iddah consists of three quru�, which could mean either three menstruations (hayd) or three clean periods (tuhr) between menstruations. The latter meaning would actually imply four menstruations and, therefore, a longer waiting period. The Companions differed over this and some among them, including �Uthman ibn �Affan, �A�isah and Zayd ibn Thabit held the latter meaning whereas �Umar Ibn al-Khattab and �Abd Allah ibn Mas�ud held the former. The �ulama of Iraq, including the Hanafis, have followed �Umar ibn al-Khattab�s interpretation whereas the majority of the �ulama of Hijaz, including the Shafi�is. have followed �Uthman and �A�ishah, and the ikhtilaf has remained unresolved ever since.{4}

To illustrate disagreements over the meaning of words in the Hadith, I would refer to a hadith on the subject of divorce which proclaims that "no divorce nor manumission (can take place) in a state of ighlaq" (La talaq wa la itaq fl ighlaq). While many have held that the word ighlaq means duress, others have held it to mean anger. Ibn Qayyim al-Jawziyyah, concurring with his teacher, Ibn Taymiyyah, is of the opinion that ighlaq means obstruction of the faculties of awareness and purpose (insidad bab al-�ilm wal-qasd)and has consequently held that divorce pronounced in a state of insanity, intoxication, extreme anger and even by an imbecile (maftuh)are all null and void.{5}

The word of the text may sometimes convey both a literal and a metaphorical meaning and there are instances of this in the Qur�an. For instance, in the context of ritual cleanliness, the ablution (wudu�)that is taken for obligatory prayers is normally vitiated in various ways, including physical contact with members of the opposite sex. The words that are used in the Qur�an are "... or when you touch women -aw lamastum al-nisa�- then you must take a fresh ablution". The Hanafis understood the word lamastum to mean sexual intercourse, whereas the Shafi�is maintain both the literal and the metaphorical meanings of the word which means that wudu� is broken not only by sexual intercourse but also by a mere handshake with the member of the opposite sex. The ikhtilaf of this question has also remained unresolved ever since.{6}

In a similar vein, the Qur�anic language oil the subject of commands and prohibitions is not necessarily value-specific. A word may occur in the imperative mood and it may convey either ail obligation (wujub), a mere recommendation (nadb), or even a permissibility (ibahah), which is far removed from the idea of a command. Thus the Qur�anic word fa�ktubuh (reduce into writing) transactions involving future obligations, or credit-based transactions (see 2:282) is linguistically a command but documentation here is generally held to be only recommended, not obligatory. Only the Zahiriyyah have held that the text here conveys an obligation and have consequently made documentation a requirement of every loan and deferred transaction.{7} We also read in the Qur�an command forms such as kulu wa-�shrabu (eat and drink, 7:31) and also with reference to the hajj ceremonies it is provided that when you finish the hajj, then you [proceed to] hunt -fa�stadu- (5: 2). The words in both these examples only convey permissibility even though they are in the imperative mood.{8}

A prohibition (nahy) in the Qur�an may likewise convey a total ban, which is the normal meaning of a prohibition, or it may convey a mere reprehension (karahiyyah), or guidance (irshad) or indeed a host of other meanings, and the precise import of the words of the text is often determined by reference to supportive evidence in the Qur�an itself or the Hadith, and the �Ulama are not always in agreement over the conclusions they have drawn from their readings of the text.{9}

Another cause of ikhtilaf among the leading schools of law is due to the variation of localities, customary practices (�urf) and cultural environments. The Hanafi madhab was developed in Iraq whereas the Maliki school was mainly developed in the Hijaz and they have each reflected the cultural leanings and custom of the society in which they had emerged. It is interesting to note, for example, that Shafi�is scholastic work was developed initially during the years of his residence in Baghdad, and subsequently in Egypt where he resided for several years. It is claimed that he found the customs of the Egyptians so different that he revised and changed a great deal of his earlier rulings, so much so that he is generally known to have developed two schools, the old and the new. Changes of time and place and developments in the customs and culture of society are not confined to these schools but are generally reflected in the works of the �ulama.{10} An ikhtilaf that originates due to cultural and customary differences is not always confined to minor issues as the scope of disagreement among schools and scholars often extend from specific issues to methods of reasoning, attitudes and perceptions over the basic evidence of the Shari�ah.

Another cause of ikhtilaf isthe ignorance of a hadith, especially in the early period, that is, prior to the compilation and collections of ahadith in mid-third century Hijrah. Some of the disagreements that arose between the Traditionists (Ahl al-Hadith)and Rationalists (Ahl al Ra�y)related to-the fact that the scholastic centres of Kufah and Basrah in Iraq had not known some of the ahadith that were known in Makkah and Madinah. This would explain why the �ulama of Kufah resorted more frequently to ray and qiyas on issues over which they had not known of ahadith. Even the �ulama ofMadinah were not at times well informed of the relevant hadith and resorted to Medinese practice (�amal ahl al-Madinah)or to qiyas.

This-may be illustrated by reference to the hadith concerning the option of contractual session (khiyar al-majlis), which neither Abu Hanifah nor Malik, the leaders respectively of the Ahl al-Ra�y and Ahl al-Hadith, had implemented in their rulings on the matter. The reason for this is that the hadith in question was either not known to them or that they had known it but did not consider it reliable enough since it was a solitary hadith and was not widely known to them to rely on it. Malik referred the issue to the Medinese practice which did not correspond with the hadith. But when subsequent investigation tent support to the hadith and the fact that it was recorded by both Bukhari and Muslim as a marfu� hadith (i.e. hadith that goes back to the Prophet), it was generally followed by the majority of the madhahib, except for the Maliki madhhab, which still disagreed and upheld �amal ahl al-Madinah.{11} The hadith in question provided that "when two men negotiate a sale, each of them has an option to withdraw until they part company". A mujtahid who had known a particular hadith, or had known it but considered it weak of authenticity, might have relied instead on a manifest -Zahir- text of the Qur�an or arrived at a ruling by way of analogy to the text. Another mujtahid might have known a more relevant hadith and the result would be differential conclusions over the same issue. {12} Another level of ikhtilaf that originates in a hadith relates to variation in the reports of different narrators of the hadith. A hadith issometimes narrated by more than one narrator, one of which may have conveyed a fuller version than the other, or that one of them might refer to the efficient cause (�illah)of its ruling and the other does not. The mujtahid may consequently consider one to be more reliable than the other and various possibilities of ikhtilaf can arise in such situations. The third cause of ikhtilaf that is known to the �ulama� isover the same issue.

If methodology and principles of Usul al-Fiqh. Considerable differences have arisen among schools over the acceptance or otherwise of a certain proof or principle of Usul al-Fiqh. There are differences, for example, with regard to juristic preference (istihsan)which the majority have accepted as a valid proof and source of the Shari�ah but which the Shafi�i have rejected altogether. Istihsan isthe nearest Shari�ah equivalent of the doctrine of equity in Western jurisprudence and it authorises a judge and a mujtahid to find an alternative solution to an issue in the event where strict application of the existing law leads to rigidity and unsatisfactory results. And then with reference to ijma� we note that the Malikis have held the Medinese consensus - ijma� ahl al-Madinah- to be the most authoritative, or even the only valid form of ijma�. The majority on the other hand, considers ijma� as anembodiment of the general consensus of the learned mujtahids of the Muslim community without it being necessarily confined to any particular region as such.

The leading schools have also differed over the authority of the fatwa of a Companion as a proof and basis of judgement (hukm). Whereas some have seen the verdict and ruling of a Companion as a true manifestation of the Sunnah of the Prophet (peace be on him) and therefore authoritative. Others have disagreed and stated that the fatwa of a Companion is authoritative over something which the latter has narrated from the Prophet (peace be on him), but not otherwise. Similar differences of orientation have arisen over considerations of public interest -istislah-and custom -�urf-. The Malikis, on the other hand, are the main exponents of istislah, and the Hanafis of �urf, the other leading schools accept them each to a limited extent and the result is usually shown in their different rulings and conclusions over specific issues.
The scope of ikhtilaf over methodological principles also extends to rules of interpretation and the implied meaning of word forms such as the general and the specific (�amm and khass). Compare, for instance, the position of the Hanafis to that of the majority - jumhur - on the implications of the general and specific rulings of the Qur�an and Sunnah. The general (�amm)ruling of the text is definitive (qat�i)according to the Hanafis but it is speculative (�amm)according to the majority (jumhur). One of the consequences of this would be that no conflict can arise between the �amm and the khass, according to the majority, since the latter will always prevail over the former. But since the Hanafis consider the �amm to be definitive - qat�i -, a conflict can arise between one qat�i textual evidence and another.

The madhahib have also differed over their methodologies of establishing the authenticity of a hadith, especially the solitary (ahad) hadith. It is a report of odd individuals, which remains below a mutawatir or a mashhur hadith. The Hanafi methodology concerning the ahad ahadith tends to be more stringent thereby precluding a chain of transmission, or isnad, in which there is weakness more rigorously than the other madhahib. For instance, the Hanafis prefer the manifest (zahir)of the Qur�an over the ruling of the ahad hadith. To illustrate this I refer to the subject of guardianship in marriage of an adult woman. The Hanafis- maintain that the adult female is entitled to conclude her own marriage contract, whereas the other three schools require the presence of the legal guardian (wali) to validate the marriage. The majority have relied on one of the ahad aha.dith which simply declares: "There shall be no marriage without a guardian". The Hanafis have relied instead on the Qur�anic verse: If lie has divorced her, then she is not lawful to him until she marries (hatta tankiha)another man" (2: 29). The occurrence of the Arabic word form tankiha in the feminine singular mode has enabled the Hanafis to conclude that an adult woman may contract her own marriage. The text here is characterised as zahir (manifest) in respect of guardianship as this is a secondary theme of the text, the main theme being that of divorce, which is why it (i.e. zahir) isconsidered a weaker evidence. Yet the Hanafis have preferred it to the hadith mentioned above, which, although definitive in meaning, is less than it in respect of authenticity and proof.{13} The Hanafis have also preferred the general (�amm)of the Qur�an, and at times even a ruling based on analogy (qiyas), to a weak hadith. With reference to eating out of forgetfulness during the fast of Ramadan, for example, the Hanafis, unlike the majority, did not follow the hadith which exonerated this and allowed the person to Ignore it and complete his fast. The Hanafis instead held, by analogy, that a belated fast should be observed. The Malikis have generally preferred the Medinese practice to ahad hadith, and such differences of methodology have naturally had a bearing on the rules which the madhahib have derived from the available evidence.{14}

Etiquette Of Disagreement - Adab Al - Ikhtilaf

The science of Usul al-Fiqh is, from beginning to end, concerned with establishing a correct and effective methodology for ijtihad, and therefore also for ikhtilaf. Usul al-Fiqh is designed to encourage ijtihad in accordance with a set of guidelines. These guidelines go a long way to help distinguish acceptable ijtihad from that which is arbitrary and excessive. For so long as we accept in principle the validity of ijtihad, we must also accept ikhtilaf within its valid parameters. The Qur�an and the Sunnah are generally supportive of rational enquiry into its laws, which is borne out by the fact that the Companions were actively engaged in discussing legal questions. They differed from one another on matters of interpretation and ijtihad but at the same time they tended to acknowledge and tolerate juristic ikhtilaf among themselves. Their method to resolve matters relating to ikhtilaf in ijtihadi issues was by having recourse to consultation - shura - which is a Qur�anic principle and the Prophet (peace be on him) had regularly resorted to it himself. But before they resorted to shura, the Companions normally referred to the Qur�an and the Sunnah, in search of solutions to issues. Only, In tile absence of a clear ruling in the text did the Companions resort to shura and ijtihad. The following hadith is often quoted as a theoretical basis for legitimating ijtihad: "When a Judge exercises ijtihad and gives a right judgement, lie will have two rewards, but if lie errs in his judgement lie will still have earned one reward".{15}

In addition to providing the basic ground for ijtihad, this hadith also encourages tile spirit of tolerance in academic endeavour by promising a reward even for one who might have inadvertently fallen into error. Since the hadith has taken a positive view of such efforts, other scholars and fellow mujtahids are also required-to exercise restraint in denouncing a view which they might consider erroneous. This hadith also lends support to the conclusion that a judicial decision that is made in the true spirit of ijtihad isenforceable and the judge may not be taken to task for it if it later turns out that lie had made an error of judgement. Similarly, when a person trusts the integrity and knowledge of a scholar of the Shari�ah and acts upon. his verdict (fatwa)on a legal question but later discovers that the fatwa was erroneous, he would have committed no wrong, simply because the hadith exonerates all error of that kind in the first place.{16} The reward that is promised in this hadith is, however, earned by judges and mujtahidswhose sincerity and devotion to a good cause are not in question.

The Prophet (peace he on him) also directed his Companions to avoid disagreement that is purposeless and destructive. �Abd Allah ibn �Umar has reported that oil one occasion the Prophet (peace be on him) heard two people arguing over a verse of the Qur�an apparently on some minor points such as accentuation and vowelling. The Prophet (peace be on him) heard their arguments and came out evidently angered with the kind of ikhtilaf in which they were engaged and said: "Verily people were destroyed before you for (their excessive) disagreement over the scripture"{17}
Yet on another occasion when a similar disagreement had arisen over the recitation of a portion of the Qur�an, the Prophet (peace be on him) noted the sincerity of the disputants and addressed them in these words: "Both of you are well-meaning". He, however, warned them to "avoid (excessive) disagreement. For people before you were destroyed because of that".{18}

This hadith isquoted by al-Bukhari in a chapter bearing the title "Karahiyyat al-Ikhtilaf " (the Reprehensibility of ikhtilaf)which evidently portrays an image of how al-Bukhari viewed ikhtilaf. The expression halaka (they were destroyed) occurs in both tile ahadith referred to above. Ikhtilaf can, in other words, be destructive even if the parties might mean well.

Edited by rami