“Madh-habs are basically characterized by differences of opinions more
than they are characterized by uniformity and agreement and this is why we
should not follow any madh-hab.”
Before we can agree or disagree with the above
statement, let us analyse the statement further. The statement implies that the concept of
‘differences of opinions’ is bad while the concept of ‘uniformity and agreement’
is good. The statement also implies that
the main characteristic of the madh-hab is this implied negative concept of
‘differences of opinions’. Lastly, by the
logical assumption that we should embrace the good, we should reject the
concept of madh-habs.
Let us tackle first the concepts of ‘uniformity and
agreement’ and ‘differences of opinions’.
In the Qur’an[1],
there are several verses referring to mankind’s nature of holding different
opinions and divergent views such as 2:213, 2:253, 5.48, 11:118, 16:92-93,
17:84, 21:92-93, 22:67 and 23:52-54.
These verses imply that it is part of God’s will and plan that mankind
should hold divergent views. (Abou
El-Fadl , 2001, p. 29) One verse in particular holds an interesting implication
for our discussion:
“…Unto every one of you have We appointed a
[different] law and way of life.[2]
And if God had so willed, He could surely have made you all one single
community: but [He willed it otherwise] in order to test you by means of what
He has vouchsafed unto you. Vie, then,
with one another in doing good works!
Unto God you all must return; and then He will make you truly understand
all that on which you were wont to differ.” (Qur’an, 5:58)
In Asad’s commentary, he picked up on the Qur’an’s
specific use of the word ‘shir’ah’ (body of laws) and ‘minhaj’ (way of
life). Both terms imply something that varies
and changes ‘in accordance with the exigencies of time and of each community’s
cultural development’ (Asad, 1980, p. 153).
The history of law, including Islamic law, shows this to be true as
people confront new circumstances and therefore need to address those
circumstances. For example, taking the
early development of Islamic law, circumstances forced Umar al-Khattab r.a. to
suspend the execution of the law of theft during the famine even though it was
never suspended during the Prophet’s (s.a.w.) nor Abu Bakr’s (r.a.) time. It led to the legal precedence of suspending
such law during extra-ordinary and/or very difficult and trying circumstances
in Islamic law and later to the development of the maqasid al-Shari’ah[3]. Therefore, the choice of the words used by
the Qur’an is significant because it implies flexibility and adaptability which
is required in order to accommodate different circumstances – not only major
ones as in the case of the earlier quoted example but also individual
circumstances – and also differences in opinions.
It is not just the Qur’an that acknowledges the reality
of the differences in views and opinions.
Citing Al-Juwayni, Abou El-Fadl (2001, p. 10) noted the long-standing
tradition of disputation and disagreement that could be traced back to the time
of the Companions. There was also a
famous hadith, though its authenticity is disputed, that ‘disagreement of the
ummah is a source of mercy’ (Abou El-Fadl, 2001). Imam Malik r.a. resisted having his book,
al-Muwatta’, imposed as the uniform law of the land because he upheld the view
that there was no single juristic tradition/school amongst the many which have
formed that have an exclusive claim to the truth. This was so because each school based their
legal opinions on only part of the entire corpus of knowledge handed down by
the various Companions who settled in the various lands (Abou El-Fadl, 2001;
Philips, 2006). Each of the scholars in
the various schools was exercising his/her ijtihad
based on their knowledge and as the famous hadith in Sahih Muslim (Elias, 2012)
goes:
Amr ibn Al-As
reported: I heard the Messenger of Allah, peace and blessings be upon him, say,
“If a judge makes a ruling, striving to apply
his reasoning (ijtihad) and he is correct, then he will have two rewards; and if a judge
makes a ruling, striving to apply his reasoning and he is mistaken, then he
will have one reward.”
These various traditions in Islamic jurisprudence seem
to indicate that the Islamic jurisprudential tradition does embrace the idea of
diversity in opinions. The Islamic
jurisprudential tradition, which has striven hard to be true to the Qur’an and
Sunnah, would not embrace something that runs counter to them. Thus the idea of diversity in opinions does
not run counter to these sacred sources and cannot possibly be bad.
The second assumption in the statement is that
madh-habs are characterised by ‘differences of opinion’. Is this true? First, we need to understand what
a madh-hab is. A madh-hab is a school of
Islamic legal thought. The key word here
is ‘legal thought’. Benard G. Weiss
(2006, p. 22) states:
“It is a presupposition of Muslim juristic thought
that the law of God has not been given to human beings in the form of a
ready-made code. Law is not sent down
from heaven as a finished product.
Rather, it is something that human jurists must elaborate on the basis
of textual sources.”
Again the idea here is that the jurists have to
exercise their ijtihad in
interpreting the textual sources of the Qur’an and Sunnah in expressing the
legislation/law. Ijtihad means hard work and each mujtahid has the responsibility to
exert himself/herself to the issue even if it has already been done by others
and form his/her own opinion (Weiss, 2006, p. 132). Therefore the mujtahidis, and by extension
the madh-habs they identify with and/or belong to, derive their authority from
their ability to interpret the text through their hard work (Abou El-Fadl,
2001; Weiss, 2006) and due to human fallibility[4],
there is the possibility of diversity of interpretation for a single
issue. Even within a single madh-hab,
there is a diversity of opinions on the various issues. Ibn Rushd in his book Bidayat al-Mujtahid wa Nihayat al-Muqtasid (1994) describes the
various ikhtilaf and noted the
reasons for these differences in detail.
Thus, the statement that madh-habs are characterised by differences of
opinions does have some validity.
In order to understand why these differences of
opinions (ikhtilaf) arise, we need to
understand the methodology which the mujtahidis and the madh-habs use to
interpret the sacred texts of the Qur’an and Sunnah. The Qur’an and Sunnah are the two primary
sources of Islamic law. However, while
the Qur’anic text is agreed upon, the Sunnah is not. Even with the Qur’an, differences occur in
interpreting its text. For example, in
the case of a text in the form of a command there are differences of opinion as
to whether it becomes an obligation or a recommendation and similarly in the
case of a text of proscription (Ibn Rushd, 1994). As for the Sunnah, Yusuf (1996) and Duderija
(2012) made the differentiation between the Sunnah and hadiths. Both these authors emphasised that the Sunnah
refers to the practices (aml) as opposed to the hadiths which is the
documentation of the practices. Simply
put, as generations passed, there is a growing reliance on the hadiths to
remember the Sunnah. However, given that
documentation can be falsified, there arises different ways to authenticate the
hadiths – two main methodologies are those of the hadith scholars who look at
the isnad and matan to prove the ‘soundness’ of a hadith as its authenticity and
those of the legal theologists (usuliyyun)
who look at the tawatur (the multiple
channels of transmission) of the hadith to provide certainty of its
authenticity. These different methodologies,
combined with the different methodologies in interpreting the text (matan) of
the hadiths, naturally give rise to differences in opinions and judgement[5]. These differences of opinions and judgement have
ensured a rich Islamic legal tradition and heritage, manifested by the
madh-habs, which is not only able to respond to new issues but also to look at
old issues with new eyes/insight[6]. Therefore, even though the madh-habs are
characterised by the differences of opinions, it is a positive development
within the Islamic legal tradition that allows people to adopt an opinion
suited to their circumstances rather than be rigidly bound by a single, uniform
code of law which impose hardship upon the people because it is not suited for
their circumstances.
Finally, we come to the crux of the statement, i.e.
we should not follow the madh-habs because they are characterised by
differences of opinions. We have shown
that though the madh-habs are characterised by differences of opinions,
differences of opinions do not necessarily have a negative connotation and
within the Islamic legal tradition, these differences are seen as a mercy for
the Ummah made up of diverse communities and individuals. So the issue of following madh-habs or
otherwise should not be decided according to whether the madh-habs are rife
with differences of opinions but instead we need to understand what it means to
follow a madh-hab. As mentioned before,
a madh-hab is a school of legal thought.
Simply put, if we take out the current concept of madh-habs being
defined by the four major schools and perhaps the salafi and ahl-hadiths, a
madh-hab represents the opinions of a learned scholar.
It is inescapable that a practising Muslim is
always bound by a madh-hab. A child
learning from his/her parents follows the parents’ school of thought and if he
is sent to study under a teacher, then she/he is following her/his teacher’s
opinions, i.e. his madh-hab. As she/he
grows older and learns from more than one teacher, he/she may then be able to
understand better and formulate his/her own choices from the various different
opinions…at this stage, he/she is known as a muqallaf until he reaches the
stage where he/she has the necessary skills to be a mujtahid whereupon he/she
is now no longer bound by the opinions of those more knowledgeable than
himself/herself. Rather than being
bound, the learned mujtahid can now engage in the process and becomes one of
the contributors.
One of the implications of rejecting the following
the madh-habs is that we are rejecting the Islamic jurisprudential tradition
with its wealth of knowledge built up through the centuries. It is as if we are cutting down the tree with
its branches, leaves and fruits in order to ‘go back to the roots’. A
gardener who wants to grow his own tree by grafting the ‘roots’ needs to be
equipped with the proper skills.
Similarly in the case of the person rejecting following the madh-habs,
he needs to be equipped with the necessary skills to interpret the sources and
form his own opinion. Unfortunately,
this is not the case of the majority of us.
What is therefore obligatory upon us is to strive to increase our
knowledge and strive to reach this level knowledge and skill if we can but
until then, we should honour the efforts of the mujtahidis and our ancestors
who have built the Islamic legal traditions by keeping faith with our teachers.
Reference:
Abou El-Fadl, K., 2001. Speaking in God’s Name: Islamic Law, Authority and Women. England,
U.K: Oneworld Publication Limited.
Abou El-Fadl, K., 2006. The Search for Beauty in Islam. U.S.: Rowman
& Littlefield Publishers, Inc.
Asad, M., 1980. The
Message of the Qur’an. Gibraltar: Dar al-Andalus Limited.
Duderija, A., 2012. Evolution in the Concept of Sunnah during
the First Four Generations of Muslims in Relation to the Development
of the Concept of an Authentic Hadīth as
based on Recent Western Scholarship. Arab Law Quarterly, 26, pp. 393-437.
Elias, A.A., 2012. Daily Hadith Online. [online] Available at: http://www.dailyhadithonline.com/2012/02/10/hadith-on-fiqh-a-judge-who-makes-sincere-ijtihad-is-still-rewarded-even-if-he-is-wrong/
[Accessed 26 November 2013].
Hallaq, W., 1999. The
authenticity of Prophetic Hadith: A Pseudo-problem. Studia Islamica, 99,
pp. 75-90.
Ibn Rushd, 1994. The Distinguished Jurist’s Primer/Bidayat al-Mujtahid wa Nihayat
al-Muqtasid. Translated from Arabic by I.A.K. Nyazee. Reading, U.K.: Garnet
Publishing Limited.
Philips, A.A.B., 2006. The Evolution of Fiqh: Islamic Law and the Madh-habs. Saudi Arabia:
International Islamic Publishing House.
Weiss, B.G., 2006. The Spirit of Islamic Law. Georgia, U.S.: The University of Georgia
Press. (Paperback ed.)
Yusuf, S.M., 1996. The Sunnah – Its Development and
Revision. In: P.K. Koya, ed. 1996. Hadith
and Sunnah: Ideals and Realities. Kuala Lumpur, Malaysia: Islamic Book
Trust, pp. 103-128.
[1] This paper will use Asad’s translation of
the Qur’an (Asad, 1980) for any Qur’anic references.
[2] The words ‘shir’ah’ or ‘shari’ah’ and
‘minhaj’ are translated into law and way of life respectively.
[3] This famous ruling was one of the first
steps towards the formulation of the maqasid of the Shari’ah where the most
essential category (al-darurat) of preserving human life (as in the time of the
famine) triumphs over the other essential categories, in this particular case
the category is the preservation of one’s wealth and property.
[4] Both Abou El-Fadl (2001) and Weiss (2006)
discuss the implication of fallibility of the jurists (mujtahid) on fiqh
(Islamic law).
[5] Though not touched in this paper, amongst the
secondary sources such as Qiyas, ‘Urf, Ihtisan etc, the madh-habs have always
differed in their preference for these secondary sources.
[6] One such issue that caught my attention was
on spousal abuse. Here, Abou El-Fadl
(2006) gave a fresh perspective on the related verses and hadiths.
