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Thread: The Scope Of Diversity And Ikhtilaf In The Shariah

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    Default The Scope Of Diversity And Ikhtilaf In The Shariah

    Interesting paper..

    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’ 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’être 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.


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    Varieties And Style


    The ‘ulama have classified ikhtilaf Into three varieties of praiseworthy -mahmud-, such as disagreement with the advocates of heresy and misguidance; blameworthy or madhmum, of the kinds mentioned in the ahadith cited above; and one which falls between the two. This last variety of ikhtilaf isthe more difficult of all the three types as it involves ambiguity and confusion that can be misleading, and may therefore demand greater effort to identify its pitfalls. Be that as it may, the hallmark of the distinction between the praiseworthy and blameworthy ikhtilaf issincerity and devotion, or the lack of it, as the case may be. Whether the purpose is a worthy one, such as the advancement of sound ijtihad, or one which is tainted with selfish interest and caprice is likely, in the final analysis, to play a crucial role in determining the merit or demerit of ikhtilaf.{19}

    In his Risalah, al-Shafi’i has divided ikhtilaf into two types: forbidden disagreement (al-ikhtilaf al-muharram)and permissible disagreement (al-ikhtilaf al-ja’iz). Disagreement is forbidden in matters which are determined by clear textual evidence in the Qur’an and the Sunnah of the Prophet (peace be on him) for anyone who is aware of it. Al-Shafi’i then quotes in support the Qur’anic directive to the believers: "And be not like those who are divided amongst themselves and fall into disputations (ikhtalafu)after receiving clear signs" (1105). God -the Most High- has denounced ikhtilaf in what has been regulated by clear evidence, which consists "either of a clear text of the Qur’an or the Sunnah or of analogy thereon".{20}

    As for matters on which the evidence is open to interpretation, which is the sphere of permissible ikhtilaf, al-Shafi’i refers to the general rules and guidelines of ijtihad which he has discussed in his Risalah with the proviso that priority should be given to supportive evidence that can be obtained from the Sunnah or by recourse to analogy -qiyas-.{21}

    Ibn Taymiyyah has distinguished two levels of disagreement, namely substantive disagreement amounting to contradiction (i.e. ikhtilaf al-tadad)and disagreement of variance (ikhtilaf al-tanawwu’). The former usually consists of two views that are diametrically opposed to one another and they cannot be reconciled. The majority opinion on this type of disagreement is that only one of the opposing views could be right and declared as such but not both. Examples of this type of ikhtilaf among scholars are found on the question of freewill and determinism or in the views and doctrines of different factions of jurists and mystics. Tile matter is different in ikhtilaf al-tanawwu’ which consists basically of variant interpretations. one of which may be recommended while tile other is neither denounced nor falsified. This is where preference (al-tarjih)finds valid expression, simply because both sides rely oil valid evidence. In Ibn Taymiyyah’s assessment, by far the largest portion of ikhtilaf that has arisen in the Muslim community falls under the latter variety of ikhtilaf.{22}

    The leading authorities of Islamic Jurisprudence are oil record in praising one another for their sincere contributions and have hardly, if ever, denounced One another for their differential opinions. They have, also urged their disciples not to be blind followers of the opinions of the founders of their madhab but to refer to the sources on which they had relied themselves. The leading authorities have all emphasised adherence to the Qur’an and the Sunnah as a matter of priority; then they counselled recourse to consensus (ijma’)and to analogy (qiyas)in the absence of a clear textual ruling oil a particular question.{23}

    Ikhtilaf
    isa well developed area of Fiqh and works of scholarship on ikhtilaf date as far back as those of Fiqh itself. The first extant work of ikhtilaf known to us was by Abu Hanifah (d. 150) which bore the title Ikhtilaf al-Sahabah (Disagreement among the Companions). Then his disciple Abu Yusuf (d. 182) wrote a book entitled ikhtilaf Abi Hanfiah wa Ibn Abi Layla. Al-Shafi’i also wrote a book entitled Ikhtilaf Abi Hanifah wa’l-Awza’i; has a chapter on ikhtilaf in his Risalah; and has recorded in Kitab al-Umm his own disagreements with Malik on many issues. Ibn Jarir al-Tabari (d. 307) wrote a more general work on ikhtilaf entitled Ikhtilaf al-Fuqaha’.

    The style and content of these works have also changed over time. Initially the style of writing tended to be somewhat defensive and sought to vindicate one’s own views or school of following without expatiating in the works of the other madhahib, except perhaps where they differed from one another. Subsequent works on ikhtilaf such as that of Tabari’s Ikhtilaf al-Fuqaha’ and Ibn Rushd al-Qurtubi’s, Bidayat al-Mlijtahid tended to acquire a comparative style of writing, and later still, especially after the fifth century Hijrah, that is, following the decline of ijtihad, ikhtilaf works were influenced by regional developments and the focus was shifted to disagreements within the ranks of the schools. such as those between the leading imam and his disciples, or among the disciples themselves. Ibn ‘Abidin’s Radd al-Muhtar may be cited as an example of this approach. Another development of note in this context is that the writers began to indicate their preferable positions and there emerged a genre of juristic literature on preferences (al-tarjihat) which developed as an epiphenomenon of ikhtilaf.

    Two works that merit special attention are that of al-Kasani’s Bida’I al-Sama’I’ and al-Mughni of Ibn Qudamah for their balanced comparison which highlights not only the disagreements but also the points of unanimity and agreement among the madhahib.{24}

    Two Examples Of Ikhtilaf


    I refer here to two examples of ikhtilaf which relate to disagreement over the interpretation of the textual directives of the Qur’an and the Sunnah respectively.

    1. For an illustration of juristic ikhtilaf, I refer first to the differential rulings of the titadhahib on the revocation of a gift (al-ruju’ fi’l-hibah)prior to delivery. Malik and the ‘ulama of Madinah have held that it was not permissible and the only exception to this was a gift by one’s parents (father and mother) who were entitled to revoke a gift they had given to their offspring during their lifetime. Ahmad ibn Hanbal and the Zahiri school have held, on the other band, that it is not permissible for anyone to revoke a gift. Abu Hanifah has held the opposite view which entitles everyone to revoke a gift except when it is granted to a close relative who happens to be within the prohibited degrees of marriage. A general consensus seems, on the other hand, to have developed to the effect that no one may revoke a gift which was intended as a charity for the sake of gaining the pleasure of God.

    The basic ground of disagreement here consists of two ahadith, one of which declares that "one who revokes a gift is like a dog that turns back on its vomit{"25,} and the other hadith, on the authority of Tawus which provides that "it is not permissible for the donor of a gift to revoke it except in the case of the father{"26.} The mother’s position is said to be analogous to that of the father. Shafi’i is reported to have said: "Had the hadith of Tawus reached me (through reliable) isnad, I would have ruled upon it". As for the view that generally validates revocation of a gift except when the donee is a close relative, it is based on a report from the Caliph ‘Umar ibn al-Kbattab who has been quoted to the effect that "a gift granted to a close relative, or by way of-charity, may not subsequently be revoked".

    A general reference has also been made in this connection to the moral enormity of revoking a gift, and the hadith in which the Prophet (peace be on him) has said that I have been sent in order to accomplish what is morally virtuous{"27.} The jurists have resembled a gift prior to delivery to a promise (al-wa’d)which entails only a moral responsibility but which cannot legally be enforced. The only exception here is a gift that is intended as charity and the exception here has been endorsed by general consensus -ijma’-.
    The majority of jurists have held that when the father gives a gift to his son and then the son dies after receiving the gift, the father may receive it back through inheritance. It is reported that during the Prophet’s time, a man of the Anshar from Khazraj tribe had given gift of a garden to his parents and then the parents died leaving the same property in their estate. The matter was brought to the Prophet’ s attention whereupon lie said: "You have earned the reward for your charity and you may now take it back by way of inheritance{28}". It thus appears that taking the gift back through inheritance, or indeed after a lapse of time when the return is by mutual agreement, is not apprehended. The moral enormity attached to the revocation of a gift is, as already stated, prior to delivery. For transfer of ownership of the gifted object is completed upon delivery and possession, and from that point onwards, the matter is no longer a moral issue, but governed by legal rules, which means that any subsequent transfer of ownership must be by mutual consent of the transacting parties.

    2. To illustrate juristic ikhtilaf that originates from the variant interpretations of the words in the Qur’an, I refer to the verse on the type of divorce known as al-ila’. The verse in question provides:


    Those who swear that they will abstain from intercourse with their wives should wait for four months. Then if they go back, God is surely Forgiving, Merciful. And if they resolve on a divorce, God is surely Hearing, Knowing (2:226).{29}

    Ila’
    typically occurs when the husband takes an oath of abstention, pledging he will abstain from sexual intercourse with his wife. Ibn ‘Abbas has stated that the pre-Islamic Arabs used to take such oaths frequently, and did so at times when the wife refused to comply with her husband’s demand over something, he would then take an oath that he shall not approach her. She was left in a state of suspense for one year, perhaps even two or three years, or even longer during which time she was neither a wife nor a divorcee{30}. Then this Qur’anic ruling came and set a limit of four months for the Muslims to determine the pbsition of their estranged wives one way or another after the completion of that period. Sa’id ibn al-Musayyab also explained that "when a man did not like his wife and yet did not wish to divorce her, he swore that he shall not approach her ever again ... God Almighty then set a limit to this form of abuse{31}". The above verse effectively declared that if the husband did not resume conjugal relations with his wife within four months. die wife shall be divorced. The rules of ila’ which tile jurists have elaborated also apply to instances of deliberate desertion of the wife by the husband without a valid excuse as I shall presently explain.

    The Qur’an has laid down the basic terms of ila’ without providing details as to the specific terms of its application and this is where the jurists have disagreed widely as follows:

    Abu Hanifah, Malik and their followers, as well as al-Awza’i and al-Nakha’i and many others have held that the Qui’anic terms of ila’ apply equally whether the marriage has been consummated or not, whereas al-Zuhri, ‘Ata’ and Sufyan al-Thawri have held that ila’ can only occur after consummation. The jurists have also disagreed as to the implications of the Arabic words fa-in fa’u (if they turn back) in the verse as it implies return from a state of anger, hence the interpretation, by many Companions, including All, Ibn ‘Abbas, Sa’id ibn Jubayr and many jurists of subsequent generations that ila’ can only occur when pronounced in a state of anger. The renowned Companion Ibn Mas’ud and numerous prominent ‘ulama, including Ibn Sirin, Malik, Shafi’i and Ahmad Ibn Hanbal have held -and this is the correct view- that like other varieties of divorce, ila’ can occur both in a state of anger and in the normal state. Ibn Rushd has confirmed this by saying that the words of the verse are general and specifying their import to the state of anger would need to be supported by evidence, of which there is none.{32}

    The jurists have also differed regarding the time period which is actually mentioned by the husband when pronouncing ila’. There are four views on this:
    (a) ‘Abd Allah ibn ‘Abbas has held that ila’ occurs only when the husband swears that lie will "never approach her" again.
    (b) Abu Hanifah, his disciples, al-Thawri and the ‘ulama of Kufah have held that the period of ila’ is four months and a divorce occurs upon the expiry of this time unless the husband resumes marital relations before that time.
    (c) Malik, Shafi’i and Ahmad ibn Hanbal have held that Ila’ does not occur unless the period actually exceeds four months. There may, in other words, be a pause, after the four months’ period, in which a decision has to be made on what to follow next.
    (d) According to another opinion even a single day that is specified in the oath of abstention is enough to make ila’ come into effect.{33}

    The reason for this disagreement is that the Qur’an has specified the waiting period for the wife but has not specified any period that the husband might mention himself. It is also stated that the word fa’u in the verse signifies sexual intercourse when there is no valid excuse on the part of the husband. But if the husband abstains for a valid reason such as illness, travelling or imprisonment, he may resume conjugal relations afterwards. Only when the excuse conies to an end such as by recovery from illness, or by release from imprisonment, and he still abstains from sexual intercourse, the spouses may be separated on ground of ila’.

    A number of early ‘ulama including, Ikrimah, al-Nakha’i and al-Awza'i have held that the husband may revoke the oath of ila’, even when he is ill or in prison, by declaring his intention in words, in the presence of witnesses, and according to Ahmad Ibn Hanbal, if the husband is unable to speak, he may revoke ila’ by gesture or even in his mind. Abd Hanifah is of the opinion that when unable to attempt sexual intercourse, the husband may just declare in words that I have returned to my wife". But there is an opinion attributed to Sa’id ibn Jubayr that revocation of ila’(which is called al-fay’) does not occur except through sexual intercourse, even when the husband is on a journey or in prison.{34}

    Then there is also the question of expiation (kaffarah)which the husband needs to make, for breach of oath, when he returns to his wife. There are two opinions on this, one of which maintains that the position here is analogous to breaking any other oath and the normal kaffarah for a breach of oath would apply. Thus when a man says to his wife: "By God I shall not speak to you" and then he speaks, or says: "By God I shall not approach you" and then he does, he is in breach of his oath and therefore liable to kaffarah. The second opinion on this question is that no kaffarah isnecessary, and this is because of the wording of the verse that "... If they go back, God is surely Forgiving, Merciful" (2:266). Others have held that the reference to mercy and forgiveness here is general and does not absolve the husband from the kaffarah.{35}

    The ‘Ulama have also differed over the interpretation of the phrase in the said verse which refers to a divorce (talaq)that "if they resolve on a divorce -wa in ‘azamu ‘l-talaq..."- Does the divorce that ensues ila’ take place automatically or whether it occurs by means of a judicial decree? Many ‘Ulama have held, and this included the leading Companions, ‘Umar ibn al-Khattab, ‘Uthman, ‘Ali, ‘Abd Allah ibn Mas’ud. and ‘Abd Allah ibn ‘Abbas, and also several leading ‘Ulama including Suf`yan al-Thawri and Abu Harilifah to the effect that divorce follows automatically; that is, upon the expiry of the four month period.

    There is also disagreement as to the nature of the divorce and whether it is a revocable or a final (raj’i)divorce. Many leading Companions, the majority of the madhahib and a number of jurists have held that if the husband does not resume marital relations with his wife, he must pronounce a divorce, otherwise the judge may order a revocable divorce. This is because all divorce in the Shari’ah ispresumed to be revocable unless there is evidence to prove otherwise. Yet Abu Hanifah has differed from the majority and has held that the divorce that follows is final (ba’in).

    The Maliki jurist Ibn al-‘Arabi has stated the Maliki position to the effect that When the husband deliberately abstains from conjugal relations with his wife with malicious intention - even though there is no valid impediment, such as illness, even if he has not taken the oath of abstention by way of ila’, his position is analogous to ila’. The wife may accordingly seek judicial relief, after four months of abstention, and the judge may then assign a time, as of the date of the complaint, for the husband to resume marital relations within that period, failing which the rules of ila’ will be invoked. For it is said that ila’ is not just a verbal pronouncement and may include anything that falls within its meaning, that is, any deliberate act of desertion that is intended to harm and humiliate the wife. Thus when a man swears that he shall not speak to his wife, or shall not support her and so on, and actually acts on his word while intending to harm her, his position is analogous to ila’ and the rules of ila’ apply to him. This is because the Qur’an has ordered the husband to live with them in fairness" (4:19) and any act which is deliberate and harmful is enough to violate the Qur’anic directive on fair treatment{36}. While referring to this view, the well-known contemporary jurist, Yusuf al-Qaradawi, has concurred, despite some disagreement that the ‘Ulama have recorded about it. There is a view, in particular, that the judge should not order a divorce and should merely advise the husband and admonish him to fear God and cease harming his wife. Al-Qaradawi has stated that if the conclusion is that the husband has violated the spirit of fairness as the Qur’an has decreed, then the judge must act in order to put an end to abuse.{37}
    In both of the above examples, it can clearly be seen that all instances of ikhtilaf that the ‘Ulama have recorded are based on sound evidence and they therefore belong to the category of permissible ikhtilaf. I may add here that I have not cited the often-quoted hadith which proclaims that "disagreement of my community is a source of grace or mercy" because of its doubtful authenticity. In his section on ikhtilaf in the Risalah, al-Shafi’i has not referred to this hadith nor is it recorded by al-Bukaari and Muslim, which is why some scholars have expressed some reservation about it. But supposing it were authentic, then grace or mercy (rahmah) can only be associated with ikhtilaf that is within its valid parameters and partakes in sound ijtihad.


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    Conclusion


    The existence of ikhtilaf as a well-developed and recognised branch of Fiqh is naturally indicative of a healthy climate of tolerance, among the leading ‘ulama and scholars of Islam. The fact that several schools of law have attempted to provide equally valid interpretations of the Shari’ah they have accepted one another and they, in turn, were accepted by the Muslim community at large. All this is a further evidence to the reality of pluralism in Islamic law.

    It is also interesting to note that in the formative stages of Islamic jurisprudence -during the first three centuries- the scholars tend to excel in the degree of latitude and acceptance of ijtihad-oriented ikhtilaf. The Companions have disagreed about matters of interpretation and it is even said that they had reached a consensus on this: the agreement to disagree, and their example also finds support among the leading authorities and ‘ulama of the era of ijtihad. One might expect that the subsequent generations of ‘ulama would have preserved and even enriched this valuable heritage. Somewhat contrary to such expectations, however, the climate of understanding and openness was subsequently subjected to restrictions during the era of imitation (taqlid)where one finds instances of verging on rigidity and stricture among the lower ranks of the ‘ulama. To accept the plurality of the schools of law is indicative of healthy ikhtilaf. Hence, for a scholar/ imitator to claim total superiority of his school and take an over-critical and dismissive view of other schools is decidedly unsound and contrary to the original spirit of ikhtilaf.

    Ikhtilaf
    has played an evidently important role in the development of the rich legacy of Fiqh and Shari’ah that will continue to provide a lasting source of influence. One can hardly overestimate the inspiring spirit of sound and principled ikhtilaf in our own generation. Yet ikhtilaf has a place in the legal and intellectual heritage of Muslims which should not be exaggerated. A legal order in society can simply not’ proceed on the basis of never-ending ikhtilaf. The value of ikhtilaf istherefore relative and not an independent to conformity and consensus that must clearly be accepted as the stronger influences which demarcate the ends of acceptable ikhtilaf. I say this partly because I believe that the madhhabi divisions in the present day Muslim ummah, especially between the Sunnis and the Shi’ah, and even among the students of different Sunni legal corpus often tend to violate the spirit of sound ikhtilaf. I have seen some Muslim youth in university campuses, some of whom-have associated themselves with partisan movements, to be restrictive and intolerant of even a mild degree of liberality and openness, or of conservative orientations, as the case may be, that they observe on the part of their peers and associates.

    This I believe to be a far cry from the healthy precedent and example that has enriched the intellectual legacy of Islam, and merits constant attention, and dignified appreciation and respect. We can simply not afford to be intolerant of our differences and disagreements on various issues.

    Yet we also need to be cautious about over-indulgence in ikhtilaf. Muslim individuals and scholars could perhaps afford to encourage ikhtilaf more widely in certain periods of their history when they enjoyed the confidence that was generated by the superiority of their political power and then a rigorously productive scholarship. But I believe that there is a great need today for Muslims to appreciate the value of unity and consensus while recognising in the meantime that unity and consensus which emerge out of open deliberation and principled ikhtilaf are what deserve our best attention. Ikhtilaf and consensus are often inseparable even if they appear to be at the opposite ends of one another.

    To say that the Muslim community can totally eliminate disagreement and ikhtilaf over all questions is plainly unrealistic and has no historical precedent. The reality of living in a world where disagreements must inevitably exist is one which has dominated the greater part of Muslim history and it is no longer a matter of choice for the contemporary ummah. But then the question may still arise as to how should the Muslims cope with ikhtilaf on issues that they encounter from time to time. I propose to end this section with providing a tentative response to this question.

    The substance of the response that I attempt here is basically the same as has been known to Islamic jurisprudence throughout the ages. The main thrust of the responsibility to resolve ikhtilaf accordingly falls on the shoulder of the ulu ‘l-amr, government leaders and those in charge of the community affairs. They must address and determine ikhtilaf by reference to the nature of the questions involved and the urgency or otherwise of providing a solution for them. Thus we read in a legal maxim of Fiqh the declaration that the "command of the Imam puts end to disagreement" (amr al-Imam yarfa’ al-khilaf). The substance of this maxim is upheld in yet another maxim which simply provides that "the command of the Imam is enforceable" (amr al-Imam nafidh.). It is a prerogative. therefore, of the lawful government and the head of the state to select for purposes of enforcement an interpretation or a ruling of ijtihad that is in the best interest of the community. There may be several interpretations of a particular text of the Qur’an or the Sunnah, or indeed a variety of non-textually based ijtihad relating to tile same issue, in which case the Imam is within his rights to select one in preference to others. In doing so, the Imam, or those in charge of such a selection, must act on the best interest and maslahah of the people. This is, in fact, the subject of another legal maxim which provides that the "affair of the Imam is determined by reference to maslahah"(amr l-Imam maniut bi’l-maslahah). Once a maslahah- oriented selection has been made by the ruling authorities, everyone must comply with it: neither the mujtahid nor a layman is entitled to deviate from the command of the ulu ‘l-amr, asthis is where disagreement must be laid to rest.

    It is, accordingly, the responsibility of the ulu ‘l-amr to address issues of ikhtilaf that cause tension and disunity in the community generally as well as those that require urgent solutions. We know, of course, from the explicit terms of the Qur’an that the ulu ‘l-amr must resort to consultation, solicit expert opinion and counsel from the community itself, or even outside the community, if this proves to be necessary in order to resolve Ikhtilaf. Here we may refer once again to the Qur’anic directive which enjoins the believers to "ask those who have knowledge, if you yourselves do not know" (16:43). The search for consultative and well-informed solutions and participatory decision by the ulu ‘l-amr thus summarise the Qur’anic directives concerning the determination of ikhtilaf.

    Consultation in the present-day Muslim communities is conducted according to pre-determined procedures at the level usually of representative assemblies which normally uphold the majority opinion. When the authorities in charge and the ulu ‘l-amr have determined a disputed matter in the manner indicated. above, it becomes a hukni sharY and a duty therefore of the citizens to rally behind it and abandon ikhtilaf.

    Experience may have shown that due to a high level of sensitivity, certain issues have become a continuous hotbed of tension in the community, and it is possible that the ulu ‘l-amr impose a total ban on all manners of disagreement and ikhtilaf over them. This is once again a legitimate exercise of the same authority that is vested in the ulu ‘l-amr. We note, for example, the provisions in the constitution of Malaysia which totally proscribe disputation and public statements on racial issues as this is proven to be a highly sensitive question in that country. One can find. of course, similar provisions on the limitations that the applied law. or the Shari’ah, might have imposed oil the freedom of speech which may, effectively put those issues beyond the realm of ikhtilaf.

    To determine a correct procedure for the resolution of ikhtilaf in the present day Muslim societies, one should naturally refer to the constitution and laws of tile country or countries concerned. This also substantially means that we do not have a single formula, or a monolithic guideline, to provide us with a unified strategy for the resolution of ikhtilaf. Often we find that the Shari’ah, or the applied law of a given country, only provide us with general guidelines and leave specific decisions to be made by the experts or those who are in charge of community affairs.

    What I have explored above may still leave us askance with regard to certain levels or types of ikhtilaf that the Muslims are experiencing today. Then we need to bear in mind that we have to live with some of the instances of unresolved ikhtilaf in juridical and even theological issues that history has left for almost every generation, and of which the present generation is no exception. This is also a function, to some extent, of the circumstantial character of ikhtilaf which tends to rise in relationship to new developments and unprecedented experiences. It must remain, by the same token, the responsibility of every generation of the ummah to seize the opportunities they may be endowed with, or which they have at their disposal, to pursue the quest for resolving ikhtilaf within the ranks of tile ummah,or else to find better ways of coming to terms with it.
    --------------------------------------------
    Notes and References
    1. Cf. Taha Jabir al-‘Alwani, Adab al-Ikhtilaf fi ‘l-Islam, 3rd ed. (Herndon Va: al-Ma’had al-‘Alami li ‘l-Fikr al-Islami, 1407/1987
    2. Cf. ‘Abd al-Rahman al-Sabuni, et al, al-Madkhal al-Fiqh wa Ta’rikh al-Tashri’ al-Islami (Cairo: Maktabah Wahbah, 1402/1982), 360.
    3. Cf. AI-‘Alwani, Adab ‘l-ikhtilaf, 104.
    4. Cf. AI-Sabuni, al-Madkhal al-Fiqhi, 316.
    5. Muhammad ‘Abd Allah al-Khatib al-Tabrizi-, Mishkat al-Masabih, ed., M.N. al-Albani, 2nd ed. (Beirut: al-Maktab al-Islami, 1399/1979), hadith no. 3285; Sali ‘Ali al-Bahnasawi, al-Sunnah al-Muftra ‘Alayha, 2nd ed. (Kuwait: Dar al-Buhuth al-‘llmivyah, 1401/1981), 186.
    6. The Qur’an, 5:6
    7. Cf. Muhammad Abu Zahrah, Usul al-Fiqh (Cairo: Dar al-Flkr al-‘Arabi, 1377/1958), 75.
    8. Cf. Abu lshaq lbrahim al-Shatibi, alMuwafaqat fi Usul al-Shari’ah, ed., Shaykh ‘Abd Allah Diraz, (Cairo: al-Maktabah al-Tijariyyah, n.d.), 3: 88.
    9. For Illustrations and details see the chapter entitled Commands and Prohibitions in Mohammad Hashim. Kamall, Principles of islamic Jurisprudence (Cambridge: The Islamic Texts Society, 1991), 139-149.
    10. Cf. Al-Sabuni, al-Madhkal, 314; Jamal al-Din‘Atiyah, al-Tanzir alFiqh (Doha: n. p. 1407/1987), 135.
    11. Cf. Bahnasawi, al-Sunnah, 183.
    12. Cf. Al-‘Alwani, Adab ‘l-Ikhtilaf, 110.
    13. Kamali, Jurisprudence, 99.
    14. See for details, Kamali, Jurisprudence, 71-79; Bahnasawi, al-Sunnah, 187.
    15. Abu Dawud al-Sijistani, Sunan Aba Daud, Eng. trans. Ahmad Hasan (Lahore: Ashraf Press, 1984), 3: 103, Hadith no. 3567.
    16. Cf. Bahnasawi, al-Sunnah, 189.
    17. Muhammad ‘Ali ibn Ahmad ibn Hazm, al-Ihkam fi Usul al-Ahkam, ed., Ahmad M. Shakir (Beirut: Dar al-Afaq, 1400/1980) 5: 66; al-‘Alwani, Adab al-ikhtilaf, 46
    18. Ibnu Hajar al-Asqalani, Fiqh al-Bari Sharh Sahih al-Bukhari (Cairo: Mustafa al-Halabi, 1378/1959), 13: 289; Tabrazi, Mishkat, Hadits no. 2212; alwani, Adab al-ikhtilaf, 47
    19. Cf. Al-‘Alwani, Adab al-ikhtilaf, 28
    20. "Muhammad ibn Idris al-Shafi’i, al-Risalah, ed., Muhammad S. Kaylani, (Cairo: Mustafa- al-Babi al-Halabli, 2nd. ed. 1403/1983), 245.
    21. Ibid
    22. Taqi al-Din Ibn Taymiyyah, Iqtida’ al-Sirat al-Mustaqim li-Mukhalafat Ashab al-Jahim, ed., Nasir A. al-‘Aql (n.p. 1404/1984), 124-134; see also for a discussion of ikhtilaf, Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: The Islamic Texts Society, 1997), 144-147.
    23. Ibn Taymiyyah, Iqtida’, 91.
    24. See for details ‘Atiyyah, al-Tanzir, 136-144; al-‘Alwani, Adab al-Ikhtilaf, 91-93.
    25. Abu’l Walid ibn Rushd al-Qurtubi, Bidayat al-Mujtahid (Lahore: Faran Academy, n.d). 2: 249.
    26. Ibid., see also for a discussion Jamal al-Din ‘Atiyyah, al-Tanzir, 144-145.
    27. Ibn Rushd, Bidayat al-Mujtahid, 2: 250.
    28. Ibid., 2: 250; ‘Atiyyah, al-Tanzir, 145.
    29. See for an early and detailed discussion of this verse, al-Shafi’i, al-Risalah, 249-254 (sections 1705-1752). See also generally on ila’ Ibn Rushd, Bidayat al-Mujtahid, 2: 74-78.
    30. Cf. Wahbah al-Zuhayli, al-Fiqh al-Islami wa Adillatuh, 3rd printing (Damascus: Dar ‘l-Fikr, 1409/1989), 7: 536ff.
    31. Yusuf al-Qaradawi, Madkhal li-Dirasat al-Shari’ah al-Islamiyyah (Cairo: Maktabah Wahbah, 1-411/1990), 181.
    32. Al-Zuhayli, al-Fiqh al-Islami, 7: 545.
    33. Al-Shafi’i, al-Risalah, 250 (section 1718); Ibn Ruslid, Bidavat al-Mujtahid, 2: 75.
    34. Cf Abd ‘Abd Allah Muhammad al-Qurtubi, al-Jami’ li-Ahkam al-Qur’an, (also known as Tafsir al-Qurtubi) (Cairo: Matba’ah Dar al-Kutub, 1387/1967), 3: 109; al-Qaradawi, Madkhal, 1.84.
    35. Fakhr al-Din al-Razi-, al-Tafsir al-Kabir (Cairo: al-Matba’ah al-Bahiyyah, n.d.), 6: 88; al-Qurtubi, Tafsir al-Qurtubi, 3: 111; Ibn Rushd, Bidayat al-Mujtahid, 2: 76-77; al-Qaradawi, Madkhal, 185.
    36. Abu Bakr ‘Abd Allah Ibn al-‘Arabi, Ahkam al-Qur’an (Cairo: Dar al-Sa’adah, 1330 H), 1: 178; Ibn Rushd, Bidayat al-Mujtahid, 2: 76.
    37. Al-Qaradawi, Madhkal, 186-187.


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    this is GOLD!
    'Rebelliousness is an over-praised virtue, it is important to say something and not just threaten to say something, and there are better things to do with even a defective inheritance than trash it. - Clifford Geertz.


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    salam,

    ok, as far as i know, the mahdi will be a mujtahid imam, and so we will obliged to follow his ijtihad.
    now, where does leave ikhtilaf?
    and if there is no ikhtilaf, what happens to the hadith about ikhtilaf in the ummah being a mercy?

    wslm


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    Quote Originally Posted by sahih-baba
    salam,

    ok, as far as i know, the mahdi will be a mujtahid imam, and so we will obliged to follow his ijtihad.
    now, where does leave ikhtilaf?
    and if there is no ikhtilaf, what happens to the hadith about ikhtilaf in the ummah being a mercy?

    wslm
    Quote Originally Posted by from article
    I may add here that I have not cited the often-quoted hadith which proclaims that "disagreement of my community is a source of grace or mercy" because of its doubtful authenticity. In his section on ikhtilaf in the Risalah, al-Shafi’i has not referred to this hadith nor is it recorded by al-Bukaari and Muslim, which is why some scholars have expressed some reservation about it. But supposing it were authentic, then grace or mercy (rahmah) can only be associated with ikhtilaf that is within its valid parameters and partakes in sound ijtihad.
    The general import of the hadith is sound however, in light of the other evidences.

    Dire circumstances necessitate extreme responses - the time of Imam Mahdi will be a dire one in which it will effectively be muslims vs the rest according to most interpretations (nobody knows exactly how it will be). In such a conflict situation, one naturally follows the command of the commander - who will indeed actually be the only valid mujtahid of the time having what is *guaranteed* to be a correct usul, as opposed to the four madhabs which are approximations to the correct usul (one reason they are mutually acceptable is that we do not know which is correct as all are equally valid in their methodological derivation).

    As for what happens after. Well, who knows. I would imagine that in situations of war, it would be difficult to cover all aspects of the Shariah via ijtihad however.. We'll see.


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    To the top.


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    Where is this brother currently? I love his post (even though it is not his article).


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    This phrase is very misleading:

    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.
    This seems to imply that Ja'far as-Sadiq was a shi'i in the way that the term is understood today, yet there is not a single shred of evidence to link Imam Ja'far as-Sadiq with either the 'aqidah of today's rafidhi shi'ah nor their so-called "Ja'fari madhhab".


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