Understanding Fiqh Disagreements: A Guide to Islamic Jurisprudence

Navigating Differences in Islamic Scholarship: A Balanced Approach

AN INTRODUCTION TO FIQH -13

WHAT SHOULD WE DO REGARDING THE DISAGREEMENT ?

The attitude that should be taken is as follows:

• disagreement among scholars should not be a cause for aversion and dispute.

One should not attack one another, accuse them of transgression or disbelief or slander one another due to this disagreement. If this happens then it is an unacceptable mistake.

An example of this is that when it was said to someone that Maalik does not approve Khiyaar al Majlis, he replied, “Maalik should be given a chance to repent and if not, he should be killed.” There is no doubt that this statement is utterly false and a mistake.

• In the issues which are subject to ijtihaad, one should excuse the opponents in case of differences.
The scholars differentiate between matters that are subject to ijtihaad and controversial issues for which there is a definitive text. If there is a scholar who has exercised ijtihaad in an issue because the text has not reached him, then the text reached him afterwards,

Let’s assume that the issue is the case of Imaam Abu Hanifah with Muhammad ibn al Hasan ash Shaybani.
For example, if a Hadith did not reach Imaam Abu Hanifah then it reached Muhammad ibn al Hasan ash Shaybani. In this case, he has to adhere to this Hadith. Therefore, scholars retract their opinions and change their minds on issues of fiqh and fatwa as soon as the text reaches them.

In issues that are related to whether a text has reached the scholar or not, if there is a text that settles the dispute but has not reached the scholar then the scholar must reconsider the issue when the text reaches him.

~ An introduction to Fiqh by shaykh Aamir Bahjat حفظه الله

• Impermissibility of pursuing Rukhas (concessions), and this issue is of the utmost importance

If a person pursues the concessions and lenient opinions of each school of fiqh, he ends up accumulating all kinds of evil.

Example:
The school of Imaam Abi Hanifah considers marriage without a wali (guardian) to be valid. There is disagreement within the school concerning the details of this issue but generally, marriage without a guardian is considered valid but the presence of witnesses is a condition, in addition to other conditions.
What if someone says, “I will follow the school of Imaam Abi Hanifah in marriage without a wali.”
Then, when asked about the witnesses, he says, “according to the school of Imaam Maalik, the presence of witnesses is not a condition in marriage.”
In the school of Imaam Maalik, the presence of witnesses in marriage is a condition but the guardian is also a condition.
He says, “No, I will follow the school of Imaam Maalik in which the presence of two witnesses is not a condition.”

But Maalik stipulates the declaration and announcement of marriage. He says, “Yes, Maalik stipulates the announcement, but imaam Ahmed doesn’t.”

 Instead imaam Ahmed opined that the announcement of marriage is recommended. We say, Imaam Ahmed, who says that the declaration is recommended also states that presence of witnesses is a condition.
He says, “I followed Maaliki’s view concerning the presence of witnesses followed Ahmed’s view regarding the announcement and followed Abu Hanifah’s view concerning the guardian.”

 In this case, he would meet a woman in the street and say, “you are my wife,” and they go home.
NONE OF THE SCHOLARS HAVE ALLOWED SUCH AN APPROACH!

 It is very dangerous to pursue concessions, for this could lead to issues that a scholar could never allow them to gather in one case.
That’s why the Salaf said: “whoever pursues concessions, he will become a heretic.”

For this reason, some scholars used to say that it is better for a person to follow and adhere to one specific school. This way, even in case of weak faith, it does not lead them to pursue concessions.

Pursuing concessions may depend on the person’s intentions. A person might ask a scholar for a fatwa on an issue, and the scholar might give him a concession. In this case, he is not sinning by following this scholar’s opinion because he is seeking to know the legal ruling.

~An introduction toFiqh by shaykh Aamir Bahjat حفظه الله

• the fact that there is only one correct opinion

A Mujtahid is rewarded but he might be right or wrong. Because the hadith says: “When a judge strives for a correct decision and succeeds, he gets two rewards. If he strives but errs, he gets one reward.” However, the mistake here is neither blameworthy nor considered a sin. The truth is only one in this issue. It is not possible that the same issue can be both Halaal and Haraam at the same time in Allaah’s Religion. This is impossible. So, we don’t say that the truth is relative or that the truth is multiple.

Concerning the attitude towards the disagreements, the disagreement should not be used as evidence or as an argument. One of the biggest mistakes is that some people think that the existence of disagreement itself is evidence of permissibility.

Is Ijma’ (unanimous consensus) evidence or not ?
Ijma’ is evidence but disagreement is not evidence.

If the scholars disagree on an issue, some of them say, “it’s Halaal” while others say, “it’s Haraam”.
Can we then say, it’s Halaal because the scholars disagreed on it ? This is completely incorrect. Using disagreement as evidence for permissibility cannot be based on any of the principles of inference.

~An introduction to Fiqh by shaykh Aamir Bahjat حفظه الله