Juristic Differences and How to Resolve Them in an Islamic State 1567441122, 9781567441123

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JURISTIC DIFFERENCES AND

HOW TS

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ISLAMIC STATE.

AMIN AHSAN ISLAH|

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English rendering by

S. A. RAUF

Islamic Publications (Pt..) Ltd. 13-E, SHAHALAM MARKET LAHORE - PAKISTAN

All Rights of Publication Reserved

First Edition: March, 1986

2100

Published by Ashfaq Mirza, Managing Director Islamic Publications Limited 13-E, Shah Alam Market, Lahore Printed by Syed Afzal-ul-Haq Quddusi, Quddusi. Printers, Nasir Park, Bilal Gunj, Lahore.

CONTENTS Page

Foreword

by Mr. Justice (retd.)

Mohammad

Afzal Cheema,

Secretary General, Rabita-e-Alam-e-

(v)

Islami, Asian Branch

Preface Introduction Translator’s Note

Oa

Path to Unity in Islam

and

Practice

of Muslims till the Period of Hadrat Othman Ghani

13

How did Differences crop up?

41

Ahl-e-Hadith

and

their

Differences

60

with Jurists of Fiqh

Before and After the Fourth Genin Hijra

seit

74 90

Points of Difference

How to Resolve Differences of Figh in . 101

an Islamic State

Position of Muslim Sects in an pe with State

... 109

...

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FOREWORD

In my foreword to Maulana Islahi’s book “Islamic Law—Concept and Codification,’ which it was my privilege to write as far back as Ist of November 1977, I had observed as follows: “Realising the harm done by a rigid approach and indiscriminate blind adherence to the juristic doctrines of only one of the famous jurists, the Maulana has strongly advocated and emphasised, the need for

resolving the juristic diversities

and conflicts through

critical adoption of a particular view in determining in a spirit of intellectual freedom its proximity to and harmony with the foundational principles. In this context, it would not be out of place to refer to

Maulana’s

other

book

“Resolution

of

Juristic

Differences” (j~ & oS!

(i) which too could be

advantageously

into English.

translated

It is indeed

gratifying that my suggestion found faveur with the Maulana and it is once again my privilege to write the foreword of this much needed and important treatise “Resolution of Juristic Differences’, a subject on

which very little material language.

is available

in the English

It inevitably follows as a necessary

corollary

from the doctrine of Finality of Prophethood, which —

(¥)

(vi) indeed is a Fundamental Article of Islamic Faith, that in order to keep pace with the march of time and to resolve new and unprecedented juristic problems, Islamic Law originating from the two major sources of Quran and Sunnah, must

have

an

element of dynamism and progressiveness. This is conferred on it by “‘Ijtehad”’ a juristic expression which denotes the reflections and intellectual exercises of competent Muslim divines and jurists who have been variously described in the Quran as

2a! Jal and ple! G Osu! and blessed with ability Of Gi! ¢ «383 and O13 .:43 qualified to draw analogical

deductions

and inferences, a process

known as blsz.! or cil.

Holy Prophet (pbuh).

After

the

technically death

the Righteous

of the

Caliphs and

the Companions acting on the Quranic Principle es? Gyo poly tried to find solutions of new and unprecedented problems by mutual consultation and conference in the light of Quran and Sunnah. At

times, heated discussions took place and ultimately as a result of exchange

of views

freedom and objectivity, a consensus

in a spirit of

would

inyar-

iably emerge which would become the law of the land. This practice had to be pursued and continued

as

a matter

of necessity

and

led to

creation of a wealth of juristic literature, formulation of legal maxims, and principles which were

subsequently

adopted

and

incorporated

in the

western legal systems. While it is only recently that the orientalists have started recognising the

contribution

made by Islam to modern civilization

(vii)

and the pioneers’ role played by Muslim in the various

branches

scholars

of science, very few have

really appreciated the debt owed to Islam in the field of legal science and jurisprudence. One could furnish a long list of popular legal maxims and

juristic principles daily invoked and applied by members of the judiciary all over the civilized world, which are nothing

of the

principles

but a literal

formulated

translation

by early

Muslim

jurists on the basis of the Holy Quran and Sunnah. To mention just two instances, the so-called golden principle of giving the benefit of doubt to the

accused is directly based on the Tradition of the Prophet of Islam (pbuh). pri! be Grohe! y© raze)! §50! wlan Iylocble je0 glial) pitay OW,

Likewise, the universally

accepted doctrine of State Necessity which was invoked by the Supreme Court of Pakistan in Begum Nusrat Bhutto’s Case validating the present

Military regime is also based on the juristic principle of ol) 54-s0! &,5 O!)9,4)! which in turn is derived from the Quranic verses relating to )\,h

necessary intendment or connotation and

yas elas! the object or intention

of the law-giver,

Members of the Judiciary and legal profession with

(viii) Some background of Islamic Jurisprudence

cannot

fail to notice this identity and the universal adoption and invocation of these principles in matters of interpretation of statutes both in letter and spirit. While the Muslim doctors and divines of early days of Islam, some of whom had the privilege

of learning at the feet of

the Holy

Prophet’s

Companions l,5 djl» were responsible for the creation of voluminous juristic literature, the inevitable difference of opinion on certain issues

between contemporaries could be readily presumed. This applieda fortiori to changed situations and circumstances Gy b/'!y Ulsel in different times and places O& » ol} as reflected in the Juristic Maxim OLY! jwd.ce pb! 5283 JX:..Y. No wonder therefore that a large number of juristic schools of thought emerged between the first and fourth centuries headed by geniuses of profound learning and extraordinary

intellectual ability.

In fact juristic controversies

started raising their heads soon after the

death

of

the Prophet of Islam (pbuh) and raged in the Caliphate of Hadrat Ali, the earliest example having been furnished by the Khawarij. After the Righteous Caliphs, Madina and Kufa became the two famous seats of learning and the rallying centres of Muslim scholars. Then followed the Hanafi, Maliki, Shafi‘i

and

Hanbali

schools during

the Omayyad

and

Abbasid periods. These scholastic differences persisted and also took root in the Indo-Vak sub-Continent which despite the Quranic warnings

against dissension and disunity as contained in the

(ix) VETSES 3 CHT SGV 5 my

1453 Volasem wlll Jarry yenately —,

9 pes 15548 GAUL Ol oe. Cage pe elals day oo

L255. has led to acute factionalism

bydlicly

Lyia

on religious

grounds doing incalculable harm to the solidarity of the Muslim nation. This atmosphere of rigid and intolerant sectarianism has generated intense hatred and contempt occasionally culminating in outbursts of clashes in the name of Islam i.e. “ail no-ge «9 old’, What is all the more regrettable

and painful is that, these ignorantly accentuated minor juristic differences are being mischievously exploited by unscrupulous politica! adventurers including some ambitious Ulama who are responsible

for a religiously surcharged atmosphere in Pakistan.

Islam attaches great sanctity to human

life as

observed in the Quranic Verse : 5! .~i 524) wil YS gy ban! USE lola! cag 6 begem ela! Gard Lad 5 2) VI C5 ola lLeomee,

Itis a matter

of daily

observation

that

judges of Superior Judiciary while interpreting the same law, come to different conclusions expressing honest difference of opinion

in dissenting

judge-

ments in matters involving questions of life and death. On the contrary, minor differences of doctrinal nature are sought to be magnified as the fundamentals of Islam by the ignorant, prejudiced and self-centred mullahs which is the greatest

misfortune

of the country.

While fully appreciat-

ing these hazards in the nascent

State

of Pakistan,

Maulana had proposed concrete and constructive remedial measures in the context of codification of Islamic Law.. In fact, it was not till I became the

(x) Chairman of the Council of Islamic Ideology that I realised for the first time that religious sectarianism was perhaps the biggest hurdle in the process of Islamization and promulgation of Shariah in Pakistan. It was in this view of the matter that I

had suggested

exactly seven years before that the

Maulana’s present book, originally written in Urdu,

should be translated into English. The book is one of the earliest writings of Maulana and as mentioned by him in the preface was inspired by some articles of Hadrat Shah Waliullah oJ! w«»). In addition to its importance

and

utility

as the

most-needed

and invaluable

addition to juristic literature, on a topic which has comparatively received less attention, the book assumes special significance in the context of the present day religious dissensions in Pakistan with highly aggravated sectarianism whose repercussions are felt even beyond the sub-Continent as far as

the United Kingdom. Written in his unique style this book by the Maulana furnishes a superb example of J 5 Jib pS! 525 Le. the proverbial of brevity and

rationality,

having

condensed

art in a

little more than 100 pages vast and varied material

which normally would have consumed a much bigger volume. Starting with the Quranic

emphasis

on unity

and solidarity, the Maulana has traced the historical

development of Islamic Law and Jurisprudence originating from two major sources i.e. the Quran and Sunnah. He has then referred to the methodo-

(xi)

logy adopted by the Righteous Caliphs to resolve new and unprecedented problems and has briefly Mentioned the origin of the various schools of Islamic Jurisprudence, their intense differences including those between the conformists and the

non-conformists i.e. Au |.¢ » +i popularly known as in)! Jel, These were, by and large, the inevitable consequence and cumulative effect of want of a liberal approach, prejudice on account of local

affiliation or personal loyalty and undue emphasis on derivation g@.*i by some jurists while on traditions ( go to accommodate such differences ? What

attach to them?

significance

does

our Shariah

And finally what aspect of these

differences survives

in a truly Islamic State, and

what other aspect of them fades out? Because of ignorance on these matters not only the common man, but even our ‘Ulama‘, have magnified the differences of interpretations and I[jtihad—slpxl (interpretation of Islamic Law)tinto major differences of beliefs and fundamentals. Consequently, barriers 1.

SitibadevinMatptciniion of ieee Law.

prehension of Itjihad the reader will find an of it at page 25 of this book.

Fora fullcom-

elaborate

account

7 of prejudice have been raised ‘against each other by different schools of our Islamic Fiqh in the manner in which you might find them among any two sects holding different beliefs. Secondly, there are a number

of sects

within

the fold of Muslim society, or claim to be so, which differ from the majority of the Muslims not only in matters of Muslim Law,

and convictions; Khanis.

for

but

also

instance

These sects are

not

in their

Shi‘as and

beliefs

Agha

quite sure how they

would be able to safeguard freedom of their convic-

tions and practice within a purely Islamic Order. Due to lack of knowledge on these issues, they are at times led to nurse misgivings about the islamic Order. And they are led to think that, as compared

to the Islamic Order, they may be in a better position to protect their religious freedom in a secular system. The foregoing causes make it imperative that we explain in full detail the history of the juristic differences of the Muslim scholars, trace out their evolution and determine their nature and status in

our

Deen,

so that on

the one

hand we can help

eliminate the harmful prejudices which

have

deve-

loped in the followers of Figh, and on the other, make those gentlemen who hold an argument against Islamic

the various schools of it absolutely plain to up these differences as Order, that the differ-

ences

out

by no

means

make

a case against the

Islamic Order from any angle whatsoever. contrary these differences stand as

an

On the

evidence

of

8

liberality of Islamic principles.

In fact they could

have been a blessing for the Ummah

if they had

not been left to grow on their own like weeds, but had been kept under careful scrutiny to ensure that they

did

not

step

out

of bounds.

Only a truly

Islamic State could do this job. And unfortunately, for a long time now, the Muslims

that blessing !

are

strangers

to

Sees

Saye

—

—

Translators

Note

The need for an English translation of the book “je 5 OAs! pi Un CHhy -%!” by one of the top ranking religious scholars, Maulana Amin Ahsan

Islahi, was felt quite a few years ago, as has already been pointed out by Mr. Justice (retd.) Muhammad Afzal Cheema, Secretary General, Rabita-e-Alam-e-

Islami, Asian Branch, in his Foreword to this book. Juristic differences among the Muslims are not confined to this country—Pakistan alone, although perhaps they exist here in alarming proportions.

They are prevalent

in so many

countries

of the

world where Muslims live, and have been a cause of

deep concern to the righteous minded

‘Ulama‘

ever since such differences came to surface. The learned author has quoted some

ells well-

known authorities in this context as Abu Sulaiman Khatabi, Abu Talib Makki, Shah Waliullah and

Shaikh

Izzuddin bin Abdus Salam.

Their analysis

of the conditions obtaining at that time makes a sad 9

10 reading. One can easily see what a painful experience it was for them when they noticed that the Muslims had gradually drifted away from the right path of seeking guidance

through

the

Quran

and

Sunnah of the Holy Prophet (peace be upon him) and blindly accepted the opinions and verdicts of the local ‘Uilama‘, or the teachings of particular schools of Fiqh as sufficient testimony towards the solution

of their

day to day problems.

This was

nothing short of a tragic trend of mind which persists till today. And this has been a cause of incalculable harm to the unity of the

has deprived the Muslims

Ummah

more than one form. We must therefore look for an answer ills, in which our juristic differences—with

quent division

and

of Allah’s blessings in

of the Ummah

to our a ‘conse-

into different sects

and groups—stand out prominently throughout the Muslim world. The learned author has shown wus

the way. For such Muslim countries as are currently striving to establish Islamic order in society the English version of the book should be a valuable guide. This is particularly so where. identification of the status of different sects and of the minorities within the state, is also involved.

Finally, I have to express my feelings of indebtedness to Mr. Abdullah Ghulam Ahmad, Mr, Mahmud Ahmad Lodhi and Mr. Khalid Masud for their invaluable assistance in my difficult task of translating an Urdu work of a magnificent style.

I do not feel that my attempt could possibly touch

ii the fringe of effectiveness of that style.

However,

I am grateful to Maulana Amin Ahsan Jslahi for giving me an opportunity to undertake the job all the same.

Nevertheless,

| owe my apologies to the

learned author for all what appears uneven to a sophisticated taste, in the final outcome. Lahore:

14th March 1985.

S. A. Rauf

aeeewotks a

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5

PATH

TO UNITY IN ISLAM AND PRACTICE OF MUSLIMS TILL THE PERIOD OF HADRAT ‘OTHMAN GHANI (Allah’s blessings be upon him) Emphasis on Unity in Islam and how to Achieve it.

The differences and prejudices which have developed in the Muslims today are not on account of Islam but on the contrary, due to deviation from

Islam. Not only did Islam lay the greatest stress upon the Muslims to avoid differences but also pointed out explicitly towards the path which we must follow if we were to steer clear of the minefields of dissensions. At the same time it also revealed to us the evils which had in the past overtaken the nations which had chosen to deviate from the prescribed path, so that the Muslims could learn a lesson from their fate. Note what the

Quran says : Srardls TS) 9 7155a5 Vg Lape

eSmighed Gent B phe Lied

SLE

ETel

abl fit lew paccly

pr

SN Ste ail

Ughec ptt g TL lyst! dre aty pimpels

ane TpS ail Gyeesed WIDT blgatce pTAGS LG stl ge 9 pr)l Ji O 9-6 4.3 pS

Kr) f 9 b Kral

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OF

Cpa

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13

9

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14 re

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0)

5.5

gnhd

we

| ond gK5 Y 3

OO

jrchine) | pat

Oo ase wii. age Chto 9 Sorel ped Slim lis day oye

bearyers

Olee di

And hold fast all of you together to the cable of Allah, and be not disunited. And remember Allah’s favour to you when you were enemies, and He united your hearts so that you became as brothers by His grace. And you were upon the brink of an abyss of fire, and He saved you from it. Thus Allah makcs clear Hism essages to you that you

may be guided. And from among you there should be a group who invite to goodness and enjoin the right and forbid the wrong. Such are they who are successful.

And be not like those who became divided,

and

disputed after clear arguments had come to them. For such there is an awful doom.

(3 ; 103-105)

In the verses quoted above the Muslims have been enjoined to keep united, and at the same time

they have been given the under-noted

directions to

sustain that unity : Firstly that the entire Muslim Ummah should, together, hold fast to the Cable of Allah, and be not disunited.

By the ‘cable of Allah’ is meant that agreement and

covenant

which

was drawn up between us and

the Almighty Allah—the Covenant of the Holy Quran. The command to hold fast to the Holy

15 Quran implies that we have been directed to follow the code prescribed through the Quran for our individual as well as collective life. We are not to frame any other code on our own, nor are we supposed to prefer for our individual or collective life, an imported code which runs contrary to our own. We are required moreover, invariably to refer to this

Book whenever we are faced with any problem.

In

every difficult situation involving our convictions and ideology the Quran should be our

Steering us to safety.

guiding

star

for

We should up-hold as Truth

whatever the Quran declares as such ; and we should hold as false whatever the Quran ranks as such.

In all circumstances only the Book criterion

and

our guide.

should

be our

And in no case must we

accept anything whatsoever which runs contrary Quranic teachings. _ By “‘be not disunited”’ is implied that

we

to

must

not lose our grip on the cable of Allah and fall into the

snare

of prejudice by splitting into groups led

by different Imams and leaders, whereby Truth and guidance, instead of being radiated directly by the Holy Quran might appear to become the private property of certain individuals and personalities.

It could lead to such notions quoted with reference to the might be taken as the last for scrutiny in the light of

that whatever is then Imams and leaders word above any need the Quran. Nor for

that matter, would there be any room to admit that Truth could possibly lie in anything else than what comes through the lips of the Imams.

16

Second directive given to us is that a political institution (Caliphate—=ix%+) should be established among the Muslims to fulfil two main objectives— on the one hand it should all along mobilize human race towards the values of human good and welfare

to which the Holy Quran guides us, so that entire mankind and

should come to share the blessings of love

harmony,

the

avenues

of

which

Allah

the

Almighty has laid open to the Muslims after having saved On

the

them from the hell-fire of discord and chaos. other

hand

this

institution

of Caliphate

should, invariably enjoin upon the Muslims to do the right, and to abstain from the wrong, so that the Muslims do not sink once again into the depths of evil from which the Holy Quran rescued them mercifully, and do not once again get engulfed in the storm of differences as in the

pre-Islamic

dark

ages. Third directive for us is that after receiving clear guidance from Allah we should not become like those who, in spite of explicit Commandments of Allah, split up into dissenting groups, developed differences and picked up quarrels. The reference here is to the Jews and the Christians, who had chosen to lose their hold on the Cable of Allah, and identified themselves with

unwarranted prejudice of different Imams and priests, and thereby degenerated into such a tragic state of discord and chaos that each sect took their respective ‘u/ama and priests as their gods, cutting

off all links with the Book of Allah.

The Quran

17 has described words :

their degeneration

in the following

ANN O92 Gao Lats ged Lamy 9 oe gla! pees (ry y 2 wal)

They have taken as lords Rabbis and their monks.

besides

Allah

their

The Quran has also mentioned the punishment awarded to the Jews for the degradation into which they had fallen, as under : '

'

Cc A naed rs-?

oli

Lila

!

3 weir.

ned

Cs:

read

ex a

(iy : sAdetl) And because of their breaking their covenant, have cursed them, and made hard their hearts,

We

The Christians too met the same fate because they failed to preserve the torch of guidance which Allah the Almighty had granted them, but extinguished

it, and

with

that deprived themselves of the

very means, which could serve to bring about

con-

ciliation between them, and settle their differences. The result was that whatever differences once raised

their. head, there was just no way left ever to iron them out.

The Quran

has

described

their

mutual

dissensions in the following words :

Nyaa Getter GAs! domed LA TILE Gall ges slit SN9 Selb pgareny Liner 7A) 195-53 lee Chie (yer 2 sill)

b heed! pgen od)

And with those who say, **Lo! we are Christians.” We made a covenant, but they forgot a part of that

18 whereof they were admonished. Therefore We have stirred up enmity and hatred among them till the Day of Resurrection,

Significance of the Book of Allah in the Deen, and its Pivotal Role.

The effect of such explicit directives in the Quran was that so long as the true spirit of Islam

throbbed

the pivotal

in the

hearts

role which

of

the

Ummah,

the Quran occupied in the

life of Muslims was not shared by any other thing. This

Book

and deed.

was

the main

spring of their thought

They would look up to it for guidance

for all their problems, and would focus all their efforts, first and foremost, on mastering its theory as well as practice. In this regard there is a saying

of Abdullah bin Masiid

(may

Allah’s

upon him), thus : jobeer ed 9 Cll pte pled 131 lee

blessings be

Gees OF SLs

OF Sealy yberilas wdpemed com Oe Among us, one who had learnt say, ten verses of the Quran, just would not proceed further unless and until he was thoroughly conversant with their meaning, and until he had commenced acting upon them in daily life.

In order

to have

an

idea of the

depth

of

reverence and affection which the Muslims nourished

in their hearts for the knowledge of the Quran, let us refer again to Abdullah bin Masid, He says : Sao

Lobb

abs

If ever I learnt

some

one

who

a! GbSy

from

knew

some

more

incl Sanat phiel sols

source

that

there

was

about the Quran than

19 I did, and it were possile to contact him by means of some sort of a conveyance, go and meet him.

I would not fail to

It was the Quran which alone provided the foundation for the entire legal structure. Therefore, all those who were appointed to decide legal cases, were

ordered

to give first and foremost priority to

the Quran in the course of their day to day problems. In this connection we have a saying of Hadrat Ma‘adh (Allah’s blessings be upon him), which runs as under : oles aie atl jo il gas) poten bed SlG ail

Dla clas tt

pene IS ets UT Slee gel Ul

SLE BOLT FY YS

SF

al

Pr) ue

Yue

el OLS

JLI

GI

GLE,

ail

Sgasey Kaseee cgi Rag wel OLE ail Sy euy drug’ ayl Sgn)

, A! Jgneey 5-59

ead

Sls

Peay Vy

Aa

A-g-2!

GAS! ad tore! Slay 0 Ane whew Arak . al J gauy 423 yao

It has been narrated by Ma‘adh-bin Jabal ‘“‘When the Holy Prophet (peace be upon ordered me to proceed to Yaman, he asked ‘When you are callcd upon to adjudge a case, ' will you proceed ?’

led

that: him) me: how

I said:

‘I-would decide it in the light of the Holy Quran’. He said: ‘If you do not find any clear guidance in the Quran, then ?’ I said ;

‘In that case I would decide it in accordance with the Sunnah of the Prophet’,

20 He said : ‘If you do not find anything even in the Sunnah of the Prophet of Allah to guide you in the case what will you do ?’ 1 said : ‘In such a situation I would resort to

|jtihad,

and

I would strain every nerve in that J]jtihad.’ When

the Holy Prophet (peace be upon him) heard

this from me he patted me on my chest and said: ‘All thanks to Allah, Who has gifted the representative of the Prophet of Allah, with that practical

wisdom which the Prophet of Allah approves.”

Exactly

on

the same

lines Hadrat

Umar (on

whom be the mercy of Allah) directed Qadi Shuraih. He wrote to Qadi Shuraih :

Mb cud Vg ay Qatls ab Ok G Let tes 13 ANSgaryKatee Snel 9AMT

yered Eogeat GUIS! 9 ened

pticd thal) Aepted Ol cated Ol EMT lol ad Gis eds Was Vell Gylls » 42 Gi js (5 cts dl, When you are able to find out something to guide you in the Quran, decide according to it, and do not look round for any other thing. And when you face a problem regarding which you do not come across anything in the Quran, nor does the Sunrah of the Holy Prophet (peace be upon him) throw any light on it, nor, for that matter, has any of your

predecessors left a precedent on that point, you may in such a case carry out Jjtihad if you

necessary.

consider

it

However, if you choose to defer Ijtiihad

you may do it. And in your case J think it is better

if you defer it,

21 Sayings bearing identical content, with a slight variation and narrated with

some elaborations, have also been reference to Abdullah bin Masid,

Abdullah bin Abbas and Hadrat Ali (may blessings be upon them). All these sayings indicate the priorities observed in that period. Foremost testimony in all cases was

for in the Holy

Quran.

Whenever

Allah’s clearly golden sought

a case

was

brought up before a Mufti or Qadi (Muslim judge), the latter would straightaway consult the Holy Book for guidance before taking a decision. If he did not find anything in the Quran, he would then turn

to the

Sunnah of the Prophet (peace be upon

him). If the Sunnah too did not offer any solution, only then he would resort to Ijtihad. Sunnah of the Prophet (Pbuh). It must be remembered that the Sunnah of the Prophet (peace be upon him), is by no means a thing apart from the Holy Quran, or in any way contrary

to it.

In no way does it harm the pivotal status of

the Quran in the Islamic society; nor again, is the Sunnah a thing which would in any manner impair the unity of the Ummah achieved through the “Cable of Allah’’. Sunnaéh of the Holy Prophet (peace be upon him) is; in fact, an elaboration and elucidation of

the Quran itself.

The Holy Prophet has elaborated

to us through word and deed all such matters the meaning and content of which would, on the face of

it, appear hidden

under the laconic style and allu-

sions of the Holy Quran.

Therefore, when we are

22

advised to refer to Sunnah in the second priority after the Quran, it certainly does not imply that we are being asked to refer to something alien to the Quran. In fact we have been directed to refer to the authentic elaboration and elucidation of the Quran itself, which has come to us through the recognized interpretation of the Holy Prophet

(peace be upon him). Obviously, no authority could possibly have a stronger claim to interpret and elaborate the Holy Quran than the Holy Prophet himself. And therefore no interpretation or elaboration coming from a source other than the Holy Prophet can carry greater weight with us, provided of course, that we make full investigation to ensure the veracity of the reference attributed to the Holy Prophet (peace be upon him).

This is what our scholars understood

with regard

of authority have

to the true philosophy of

Sunnah, and indeed have done so

testified by some

rightly.

This

is

of their replies to the questions

put to them by certain people who reject Hadith and

Sunnah. sy)

Let us quote a few examples : LH

eegd

Shi

ail

Cmem

Ge Olgas

66

Lend yeget Y Lag yl eget I)olatyy Aad! Gjeent 989 SGTzl) 9 Sb gehenall Avge SAL yemed Sel patebley

Ol

Th jeden I

GLAST Qi Ag!

SLE pi Lido

eS hS seated dread! Ol gy le pega! al GILES it has been quoted from Imram bin Haseen that he said to someone, (probably one of those who deny Hadith):

You

appear

to be stupid!

Do you think there

23 is any thing clearly mentioned in the Quran

to

indicate that Zuhr (mid-day) prayer consists of four Raka’ts, and that therein recitation is not to be done aloud ? Likewise, he recounted prayers, Zakat and commandments of simllar nature, and then put another

question— Do you find the details on these matters in the Quran? The Quran has only laid down such things in brief. It is the Sunnah which has elaborated them for us.

And this is what

another

renowned

scholar

said in this context—

Ont ADI Aaget gat Gye

Sli Aey Ol Gyeal Gre

Gi,

Ley VI Lyd sod Y pide tl

2) Sas

BA fet Jind

Ola

Kad 9 Yo

Ol tl

ly Ay

alee

= bisa ObpBSLy lel It has been quoted from Ayib that a person (probably one of those who deny Hadith and Sunnah), told Mutraf bin Abdullah bin Shikhir not to relate to the former anything except what was laid down in the Quran. Mutraf’s reply was— By Allah the Almighty, we do not offer anything which substitutes the Quran. On the contrary we _ offer to you teachings from one who knew more about the Quran than what we do (that is — the Holy Prophet, peace beupon him).

The

greatest

scholar

of Hadith and Sunnah,

Hazrat Imam Ahmad bin Hanbal (on whom

be the

mercy of Allah) is also quoted to have expressed the same opinion. He too maintains that the Sunnah is an interpretation and an elaboration of the Book of Allah, and at the

same

time

declares

24 most emphatically and in the clearest terms that the Sunnah cannot abrogate anything of the Quran; only the Quran can abrogate the Quran : J.mnm | ig?

Ol

Gay

a0) Aine Ley] Corwen

Gad)

Syd)

gas

clog} Ged heal! ls

haw

Ol Nace pee yea! lL. las Gls

9 heetee

Qe

de aty2li dal

poets Lt dl OF GLE KIT fe Agald dsdl ol 4) gail Sratam (yed tearnl Crise 9 head! Slo ated 9 CRI!

fewtee Y SLE O12

5-0

ae eeee

fant Y

~ Oa

YI Ob a

Fazal bin Ziad has narrated that Abu Abdullah (Ahmad bin Hanbal) was questioned in regard to the

Hadith,

which

implied

that ‘the Sunnah

can

give a decision against the Quran’. He replied— I dare not say that the Sunnah can ever decide against the Quran. The Sunnah simply elaborates the Quran. Fazal further stated that he heard Ahmad bin Hanbal say— The Sunnah cannot abrogate anything of the Quran ; only the Quran can abrogate the Quran.

Hazrat Imam Shafi‘i and the Imam Malik school of thought maintain the same convictions on the status of Sunnah. One thing may, however, be kept inmind.

The

Sunnah is that commentary of the Quran which has come to us from a personage divinely guided and protected ; whose Jjtihad is infallible, and deducThat is why we tions conclusive and unambiguous. take it as imperative for us not oniy to act upon Sunnah (next to the Quran), but at the same time

25 we believe it to be proper for us to solve our problems on the basis of guidelines and principles derived from the details of the Sunnah exactly in the same manner as we solve our problems in the light of guidelines and principles derived from the Holy Quran. After the Book of Allah only the Sunnah of the Holy Prophet (peace be upon him) is entitled

to that high status.

The deductions or

]jtihad of any Imam or any Mujtahid—-,« does not

hold that status which is enjoyed by the Sunnah of the Holy Prophet. Nor could their deductions and Ijtihad serve as a criterion or yardstick (like the Sunnah of the Holy Prophet) for the derivation @* of solutions to our problems. Tjtihad. Just as Sunnah is not a thing apart from the Holy Quran, in the same manner Ijtihad is

not something unrelated to the Holy Quran and Sunnah. To define Ijtihad we should say that whenever in a Certain case before us, we do not find any guidance in the Quran or in the Sunnah of the Holy

Prophet (peace be upon him), we should deliberate deeply over the relevant allusions of the Holy Quran and Sunnah, and take a decision which is closest to the spirit of both. Islamic Shariah has laid down certain pre-conditions for attempting

Ijtihad. Accordingly, only such persons are reckoned competent for this difficult task as have a mature understanding of the Deen. Their perception must be in full harmony with the spirit of the Quran and Sunnah. They must possess a deep study of the

26 intricacies of human life, and at the samé time niust be fully appreciative of the objectives and wisdom underlying the Commandments of Shariah. And most important of all—in their personal morals and conduct they must be completely above board, to

the extent that it is impossible could

ever

succumb

to imagine they

to selfish motives,

or would

ever carry out a false Ijtihad or pronounce false Fatwas ds,# (judgments) under influence of fear favour.

or

Caution observed by the Ancestors in matters of Fatwa and Ijtihad.

So long as the spark of religion kept alive in the Muslims, no commonplace person could ever dare to pick up his pen for conducting Ijtihad or giving Fatwas (verdicts). The Holy Prophet (peace

be upon him) declared in this context— -

plus

ies

esd pao!

Lacie

ts

—) puol

Whosoever from among you is the most daring to give a Fatwa, he is in fact the most daring to

take a leap into the hell-fire.

After this warning from the Holy Prophet (peace be upon him), people became so cautious to conduct Ijtihad or give Fatwas, that it is hard to imagine how one could be more cautious in this direction.

Hazrat Bra’ relates—

I have met one hundred and twenty Companions of the Prophet (peace be upon him) who observed such

severe

caution that whenever they were ques-

tioned on a new Shariha matter, each one of them

27 wished in his heart of hearts that some one elsé would

rather

come

forward

and

shoulder

the

responsibility for the answer.

Duties of Caliph

Umar

bin Abdul

blessings be upon him),

Aziz

(Allah’s

included judgments

legal cases coming up before him, as also

on

guidance

of the Qadis and Governors whenever they sought his advice. He wasso meticulous in this ma ter that on one occasion when one of his Governors referred a case to him for advice he wrote back :— dune

Gteag

(os (ral

dgh=s

yee2o~e

Ul len ail 5

cag pte, By God! As long as I can escape the responsibility of giving a Fatwa, I would not like to pronounce one. Your own knowledge would suffice for this problem.

The same caliph has also observed— Lge

e-g-lege! 9 (eget Rael USgerededhiey

clic wt

ahs! ei

The more one is conscious of the heavy responsibility of aFatwa, the tighter his lips are sealed. And lesser the feeling of its gravity, the greater the ' daring to readily pronounce a Fatwa.

Sifian

Thauri

has

said,

that

the jurists «8

of

those days would try to avoid the responsibility of giving a Fatwa as far as they could. They would

undertake it only if it were absolutely unavoidable. Likewise,

Ahmad

bin

Hanbal

(on whom

be

the

mercy of Allah) has observed that one who comes forward to pronounce a Fatwa in fact takes on

28 himself a very grave responsibility.

A Mufti i

(Muslim judge) should bear in mind that he pronounces verdicts touching commandments and prohibitions on behalf of Allah the Almighty, and he stands answerable for them all on the Day of Judgment. Hadrat Umar (Allah’s blessings be upon him) remarked in this respect— You want me to pronounce a Fatwa! Would that I were never approached for that (grave responsi-

bility) !

It has been quoted from

Hadrat

Imam

Malik

(on

whom be the mercy of Allah), that whenever he was

asked to give a Fatwa on a problem, he used to do it while overwhelmed with a sense of fear and

anxiety as if he found himself standing in between Paradise and Hell.

There is a whole record full of such quotations from the ancestors. Now the question can be asked, why were these ‘Ulama so meticulous and hesitant towards IJjtihad and Fatwa? How is it that a matter over which an ordinary school teacher

of a religious institution of today, is worried in the least, would in the past cast a chill over the entire being of such revered personalities as Umar bin Abdul Aziz and Imam Malik (on both of whom be the mercy of Allah)? What were the hazards in the wake of such an undertaking? The answer is that the ‘Ulama of old fully realized that to utter a word on an issue regarding which no guidance

could be clearly found either in the Holy Quran or in the Sunnah, was a matter of the gravest responsi-

29

bility.

They believed that in cases like this it was

not so simple to arrive at a solution—which should be closest to the spirit of the Shariah of Allah and the Holy Prophet—by striving to seek guidance in the subtle allusions underlying the Quran and Sunnah.

They were not unaware of the secret

that

the blood stream of the Ummah could only be sustained through a close contact with the Book of Allah. A Mujtahid and a Mufti could, through sheer

negligence

or

ignorance,

cause

a _ serious

damage to this life-line. That could be catastrophic for the entire Ummah ; and that could also imperil his own life Hereafter.

They were also not unaware

of the fact that a Mujtahid and a Mufti virtually acts as an interpreter between Allah and His servants, and declares a thing lawful or forbidden on His behalf.

It is therefore that any error

in this

field

could not be dismissed as just an ordinary mistake. On the contrary, under certain conditions, his error

could raise a fundamental controversy of Tauheed 4,>9) (monotheism) and Shirk 5,4 (polytheism).

Now if, like the Muftis of to-day, our revered ancestors too had in front of them compiled Fighs of

different Imams and they were expected

merely to

memorize them, only to quote them later—without attempting to investigate if the Quran and Sunnah did support their quotations, and if they did so, to what extent—the matter in that case would have been simple. But as we know, so far as the Deen

is concerned, they had neither fallen into such ease and indifference, nor had they allowed themselves

30 to be steeped into prejudice in favour of different

Imams, On the contrary their one supreme concern was to faithfully maintain the relation of every affair of the Muslims to the Quran and to the Sunnah of the Prophet (peace be upon him). That is why they were so hesitant to shoulder the heavy res-

ponsibilities of the onerous task of Ijtihad. Procedure of Ijtihad and Fatwa during early days of Islam.

Because of this spirit of caution and Taqwa (guarding against evil) pervading through the early days of Islam, professional Fatwa writers did not exist. Only such men were obliged to undertake the responsibilities of Ijtihad and Fatwa as were deputed on this job by the government for their competence. What to say of the grave responsibilities of Fatwa and adjudication, an average person of those days dared not to come forward even to admonish and advise others through

commonplace

sermons.

Such

duties

too

were

undertaken only by persons specifically authorised

by the government for the purpose. In this connection there is a narration mentioned in Sunan-e Abi Dawood too, from which we understand that ‘it is for the head of the state, or for his authorised representative, to deliver the congregational sermons. Those who go about delivering sermons with a view to gaining cheap popularity by making a display of Oratory with a glib tongue, despite the fact that no such duty devolves upon them, have a strong

31 disapproval him).’

of the Holy Prophet

au! So-uy Saramace Sls ghee YRS

(peace be upon ort eyes

ont

jguslan 9) rw! NI yoint y J 9a-9 ohne G Andes ail ew (yore

| a) wl

og!

#!)

- Jlszs r)

It has been narrated by ‘Auf bin M4lik Ashja‘i that he heard the Holy Prophet (peace be upon him) say—No one should deliver congregational sermons except the head of the state (Ameer), or the one who has been authorised by the Ameer: unless he is a person who is eager to show off.

(Chapter fil Qasas) Abi Dawood.

That is the reason why in the early days of Islam Ijtihad did not breed dissension and discord. in those days, to begin with, people were extremely cautious in expressing their views in their individual capacity. However, even if they did so, their

expression was not reckoned as anything beyond an ‘opinion’. A Mujtahid would act upon his own Ijtihad limited only to his own personal life. Nevertheless, he would make no attempt to bring round others to follow his Jjtihad ; nor for that matter, would he dare to declare the Ijtihad of others as incorrect as compared to his own.

The

followers

of any. one Mujtahid too would not blame others who followed a different Mujtahid. It was generally accepted that such Jjtihadds of individual scholars, even of the calibre of the Companions of the Prophet, might be expected to come out correct, but might just as well contain an error of judgment. Therefore no one could claim that truth was entirely

32 on

his side,

and

others had got it wrong.

If the

Companions (Allah’s blessings be upon them) happened to disagree on a particular issue, they would graciously agree all the same that in every aspect of the issue the possibility of both right or wrong could not be ruled out. In the early days, actual procedure for carrying out Ijtihdd was that whenever people faced a problem they would place it before the Ameer or someone designated on his behalf, who would then decide the matter in the light of the Quran and Sunnah,

If, however, it were a complicated

issue,

the Ameer would get together an assembly of the scholars well versed in Jjtihad and jurisprudence and place before them the issue involved. Whatever decision was taken collectively was proclaimed to the public, This is what is known as [jmd ‘¢l.e| (consensus) and this is what assumes the status of a Hujjat =~ (a conclusive verdict) in the Deen, because the Khulafd-e-Rdshidin have decided all such cases in full consultation with top ranking men of learning and Ijtihad of that golden age. yi

Pale)

ently

on

crepe!

yt

pst alae coe!

gat! al Syneey at Lge’ ond Led eed *. isfy leeged

oS5—i 15

Gare SLI gp.reial 9 Lgond! gareczaml

Darmi has quoted Musayyeb bin Rafe‘ as saying that when a problem came up before the Companions regarding which they did not find any narration from the Holy Prophet (peace be upon him), they would get together to deliberate on the issue. Whatever verdict was finally passed by them came to be reckoned as verity.

33 The status of such collective. decisions was completely different from the Ijtihad of individuals. Collective decisions were ranked as AMujjat of a permanent character to be followed as Shariah Law. The Qadis and Muftis used to refer to them wher-

ever applicable, and would take decisions and pass judgments on their authority. It has been quoted from Ibn-e-Abbas that if on

a certain issue he could not obtain any guidance in the Sunnah of the Holy Prophet (peace be upon him), he would look for such guidance in the

precedents of Hadrat Abu Bakr Siddique and Hadrat Umar (Allah’s blessings be upon both of them), and if he did find that guidance, he would act accordingly. To my mind the reason thereof is that both the revered personages took their decisions in most cases in consultation with the Council of Advisors, and the status of their decisions was that of Jjmda or consensus. A narration from Hadrat Ali states that the Holy Prophet (peace be upon him) observed : If. you do not come

accross any guidance in my

Sunnah on a certain issue, decide

deliberations '5)9.

it on

collective

Do not decide on individual

opinion.* * Author’s Note: Certain people have expressed doubts on the authenticity of this Saying. Possibly the wording may differ, However, the practice of- Khulafd-e-Rashidin does testify to the

spirit of this Saying,

34

Practice of the Muslims upto the time of Hadrat Othman Ghani—

From

the foregoing analysis we

can clearly

see that during the period of Khulafa-e-Rashidin, despite full freedom of expression and of Jjtihad, there was just no conflict inthe minds of Muslims,

nor was their political unity affected in the least. In every sphere of their individual as well as collec-

tive life, they would seek direct guidance in the Book of Allah. In case they did not find. any guidance in the Book of Allah, they would then look up to the Sunnah of the Holy Prophet (peace be upon him). In case they did not find any light

in the Sunnah too, they would refer the problem to those in authority YIyJs!,

It was then the duty of

those in authority to consult men

of piety and

learning and decide upon a solution which should be closest to the spirit of the Quran and Sunnah of the Prophet (peace be upon him). Thereafter,

whatever

decision.

accepted by all. was

at

was

taken

by them,

it was

Prior to such a decision every one

liberty

to express his views without fear.

However, once strictly acted Quran has also the collective the undernoted

a consensus was reached every one upon it in communai life. The Holy laid down the same procedure for and political life of the Muslims in verses of Sura An Nisa :—

3 Jee, II | g2-2—bl 3 ail_gx,. bl Tyra

09 Syd

Set

so w-3-6 plant ols

| ose

Lgegly

& rSniee yr

ol

(oq 2 Tard!) Uyem tly ait I O ye who

believe!

Obey Allah, and obey the

35 Messenger

and obey those of you

who

are in

authority ; and if you have a dispute concerning any matter, refer it to Allah and the Messenger.

In this verse the Muslims have been exhorted to obey Allah, and the Prophet and those in authority.

At the same time it has been emphasized that

in case

a difference

of opinion arose on a certain

issue, it should be decided in the light of the Holy Quran and the Sunnah of the Prophet (peace be

upon him). can

take

Evidently such a difference of opinion only two forms.

One—there may not be

any guidance at allon the problem under review either in the Quran, or even in the Sunnah. And two—the guidance may be there, but it may lend itself to more than one interpretation. In both the cases we have been commanded to look to the Quran and the Sunnah for guidance. In other words, if it be a case of more than one interpretations, we are required to adopt the one which is supported by parallel precedents appearing in the Quran and Sunnah. And if the problem under review calls for Ijtihad, then

we

must

look

for a

solution which bears the closest nexus to the spirit of the Quran and Sunnah. Now; in the verse quoted above, two things are

to be noted in particular—

Firstly, where obedience

is involved

we have

been ordained to obey three authorities—Allah,

the

Prophet and Ul-il-amr »Y\33!. This is because a political system cannot be established unless and until along with

the obedience

to Allah and the

36 Prophet (peace be upon him), we do not obey those in authority who are responsible for the enforcement of the Shariah of Allah and the Prophet (peace be upon him). However, in case of a dispute we have been directed to have recourse only to Allah and His Prophet (peace be upon him), Ul-il-amr is out of the picture here; the reason

being that the springs of Islamic Law emanate from Allah the Almighty and His Messenger

(peace be upon him).

Men

in authority neither

happen to be the source of Islamic Law, nor do they possess any authority to take a step divorced from the Law of Allah and His Prophet. In fact the

command conveyed to us in the verse under discussion to refer a disputed issue to Allah and the Prophet, has primarily been addressed to Ul-il-amr, since in their capacity as the heads of the political

structure it is their direct responsibility to guide the masses towards the path prescribed by Allah and the Prophet (peace be upon him). Andif on a certain occasion we find ourselves at the cross-roads where we could differ as to which would be the right path, the Ul-il-amr should step in to decide upon the right course in the light of the commandments of Shariah. Secondly, the word !s«:b! (obey) has been used in the verse separately for Allah and for the Prophet. However, it has not been repeated for

Ul-il-amr. This is significant submission to the commands Prophet

is absolute

and

and implies that of Allah and the

unconditional ; however,

37 obedience to U/-il-amr is not absolute or unconditional. On the contrary it is subject to the condition that orders issued by them are in conformity with the Commandments of Allah and His Prophet (peace be upon him). Whatever has been stated above, the practice of the Muslims continued on these lines till the time of assassination of Hadrat Othman Ghani (Allah’s blessings be upon him). Let us see what Shah

Wali Ullah (on whom be the mercy of Allah) has to say in this regard in his book J/zdélatul-Khifa

lise)! N51: Until that time congregational sermons and Fatwa depended on the discretion of the Caliph. Without

his permission no one could address congregational sermons

people

or

give a Fatwa.

Later

on,

however,

started addressing congregational sermons

and giving Fatwas without any authority from

the

Caliph. Consequently, the established practice of mutual consultation in matters of Fatwa could not survive. ... The fact is that

upto

Caliph

on Islamic Fiqh had

‘Othman

differences

the

period

of

not yet emerged to surface. Whenever there was difference of opinion on a certain issue, it was referred to the Caliph. The Caliph would consult

his

advisors—men

formulate

an

of

learning and

piety—and

opinion, which would eventually be

accepted as a consensus.

After

the assassination

of Hadrat ‘Othm4n (Allah’s blessings be upon him), every religious leader took upon himself to pronounce Fatwads, That is what led to differences in the Muslim Millat. Now, it is not at all true to

say that these differences cropped up soon after the demise of the Holy Prophet (peace be upon him), as

38 has been mentioned by. Shehristani in his book Al Milal Wan Nihal j=)\9 jes). If during a discussion people offer different opinions and at the end a single view-point is adopted leading to a consensus, this cannot be called ‘differences, or dissensions’. Dissension means that on a certain

issue two distinct schools of thought should emerge, and each one of them should claim the right to survive only for itself, aud wish to see the other

Wipcd out ........... The greatest

damage

that such

an attitude did was that the later generations conferred on these diffcrences the status of Sunnah purely on the presumption that whatever had been stated by their predecessors (in the form of different opinions) must surely have been founded on the Sunnah of the Holy Prophet (peace be upon him). And a non-conformist of such different opinions, or the one lukewarm to them, was accused by them as a non-conformist of Sunnah.

From the observations of Shah Wali Ullah

whom be the meicy of Allah) it is evident

(on

that so

long as the Islamic System was in force in its original purity, differences of opinion were never converted into dissensions and’ discord among the Muslims, in spite of the fact that all sorts of differences of Fiqh did arise in the Ummah and were indeed debated freely by men of learning. The reason for this happy position was that every debatable issue was in the end placed before the Caliph who would, after

consulting

authoritative

his

Advisory

decision

which

Council,

was

give

an

accepted by all.

Even if anyone disagreed with that decision, it would be taken

as a personal

opinion of that particular

39 person. All judicial cases in law courts were indeed decided in accordance with the decision of the

Caliph and the Advisory Coucinl.

|

beshal e190 23109 wal 1) 29289, Isioibui

oat lo. .nojetgab “od, dtiw, sanebrerotad a:

usgion

bA pul lakao3) vioaivsd

viewpoint ie Rdopea is

-

Cee ee

ali ea

C mcs

JrFLR

¢

that

:

“at sel })

t af

tis

f

meu

ait

rm

i

ats

his

AGY

tO

was uthoritative, 2 séisio u Which ‘ent anyone igagre ec with! ink

on, a8 a personal ‘opin

* ut on

a

}

HOW Two

DID DIFFERENCES factors

mainly

CROP

contributed

UP?

towards

fer-

menting differences in Islamic Figh after the assassination of Hadrat Othman Ghani (Allah’s blessings be upon him) :

Firstly—With that tragic event the real blessings of Khilafat-e-Rashidah virtually faded away. Undoubtedly Hadrat Ali (Allah’s blessings be upon him) was Rashidin.

a member of the group of Khulafa-eHowever, his entire reign was marred

by chaos. The Caliphate no longer radiated that glory which had attracted people to the centre for solving their problems. After Hadrat Ali (Allah’s blessings be upon him), whatever was left of the original greatness, that too declined. With his assassination came into power a regime which, no doubt, managed a strong grip over the masses through their political might, but could never win full confidence of the Muslims in. general in regard to their ability to guide the latter in matters of Shariah. The result was that there was just po means left to reconcile the differences on matters

of Figh

that

arose

from

time

to

time.

People gradually drifted towards a tendency either to depend confidence

on their own views or to place their in the ‘U/ama of their own region. 4]

42 And

since there was

available

to them

for

no longer any institution converting their differences

into harmony, the very urge for seeking harmony and unity started to wither away in their hearts. Secondly—With the expansion of the Islamic State, persons of all shades took up the responsibilities of Fatwa and Qada \43 (administration of justice) at different centres of the State. In spite of their being in complete agreement on fundamental principles, there was bound to be some sort of difference in their approach, their understanding, and their methodology for conducting Ijtihad. In spite of the fact that these differences were superficial and did not carry any weight so far as the

Deen

is

concerned,

nevertheless,

since

the

common man in any one region is inclined to have confidence primarily in the ‘U/ama of his own region, it is therefore but natural that he develops an attachment for the local Figh in preference to the one

practised

in

other

towns.

When

this

instinct crossed the mark of moderation it turned into prejudice and a damaging factor and therefore only wrought mischief. In order to have a clear picture of the historical background of these differences it is necessary to have an idea of the pattern of personalities who took over charge of the judicial offices of Fatwa and Qada in different towns of the Islamic State during the reign of the Tabi‘in «4 , who succeeded the Companions of the Holy Prophet (peace be upon

43 him).

We shall also see what impact their Jjtihads

in Figh made on the minds of the people. Period of the Tabi‘in cn» (Successors of the Companions)

After the Companions of the Holy Prophet (peace be upon him), the under noted persons held appointments against different posts of Fatwa and Qada at various centres of the Islamic State:

Madina ——Saeed bin Musayyib, Salim bin Abdullah bin Umar,

and then Imam Zahri, Qazi Yahya Saeed, Rabi‘ya bin Abdur Rehman.

bin

Makkah——‘Ata bin Rabah. Kafa —— Basra —— Yaman ——

Ibrahim Nakh‘i, Sha‘bi. Hasan Basri, T4aoos bin Kaisan.

Sham (Syria) —— Makhul. These were the authorities with whom all matters of law and justice came to be associated. It was through them

that

knowledge

and

practice

of the Holy Prophet (peace be upon him) and the sayings and traditions of his Companions were passed

on

to the

later

generations.

It was

the

Ijtihdd and vis Tafagquh (knowledge of jurisprudence) of these people that used to cut the difficult knots of problems arising from time to time in Muslim society. In that period two persons in particular can be seen towering above others, one—Saeed bin

44

Musayyib who was from Madina, and the other— Ibrahim Nakh‘i who was from the people of Kauafa: Both of them, with the help of their associates, collected together all sorts of Masdil J'\.- (problems)

related to different aspects and subjects of Figh, and acquainted themselves with the principles and rules and regulations governing each subject laid down by the predecessors. Saeed bin Musayyib and his associates were of the opinion thatin the realm of Fiqh the people of Makkah

and

Madina

held

a higher

status

as

compared to others. Therefore they raised the edifice of their school of Fiqh on the foundations of the verdicts of Hadrat Umar and Hadrat Othman Ghani (Allah’s blessings be upon them), on the judgments given by the law courts of Madina and on the Fatwas pronounced by Abdullah bin Umar, Hadrat ‘Aishah Siddiqa and Hadrat Ibne Abbas. Whatever they learnt from these Companions, they took good care to preserve it in true form after meticulous scrutiny and research. If

they found the people of Madina unanimous ona certain issue, they would adopt it forthwith. Where they discovered dissent, they would decide in favour of any one view in preference to others keeping in mind the guidelines Jaid for such preference. If, however, the problem turned out to be the one on which there was guide them, in that case

nothing on they would

record to resort to

Ijtihad to arrive at the solution. In this manner we now find a whole treasure piled up in the form of

45

their research and ljtihad on every subject of Fiqh. Simultaneously,

functioning

a parallel school of Figh was

in Kifa,

Ibrahim Nakh‘i.

and

it was

led by Hadrat

Ibrahim Nakh‘i and his associates

were of the opinion that Abdullah

bin Mas‘ad and

his associates were more authentic and more trustworthy in their knowledge of Fiqh. In this connection it is widely quoted of ‘Alqamah that he said to Masraq— I do not find any one from Madina who is more reliable than Abdullah bin Mas’id in matters of

Fiqh. Similarly, there

is a well-known quotation from

Imam Abt Hanifa (on whom be the mercy of Allah) who said to Imam Auza‘i— Ibrahim is a greater Fagih uti (Scholar than

Salim.

And

of Fiqh)

if if it were not for the stature

of Abdullah bin Umar as a Companion of the Holy Prophet (peace be upon him) I should have said that ‘Alqamah is a greater Fagih than Abdullah bin Umar.

Ibrahim the

Fatwads

Nakh‘i founded his school of Fiqh on of Hadrat

Abdullah

bin

Mas‘id

and

Hadrat Ali (Allah's blessings be upon

them),

and

on the verdicts of Qazi Shuraih and other judges the courts of Kifa He also took great pains

scrutinize and sift the whole

record

and

of to

available

material even as did the scholars of Madina in case of their records.

From the position explained seen

that

as early as

during

above the

it can be

period

of the

46 Tabi‘in, Islamic Fiqh had already developed two standing schools of thought. One comprised of the scholars and jurists of Kafa with its centre at Kifa; the other Jed by the scholars of Figh and Jjtihad from Madina, with its centre at Madina.

There was hardly any fundamental or essential difference between the two schools of Figh. The only difference was that the people of Madina gave preference to the scholars and jurists of their own town ; and the people of Kiafa chose to give preference to the scholars and jurists of their own town. Toacertain extent, a preference for local ‘Ulama is but a natural trend of mind, and as

Shah

Wali Ullah has pointed out, to that extent it is acceptable. And so long as there is at the centre a

suitable authority capable of striking a balance bring about

happy harmony

to

between such varied

trends, there is no fear of a grave setback in things. If, however, the situation departs from the line of

moderation

to enter

the field of excess,

and at

the same time a central deciding authority does not exist any longer to be able to control the centrifugal tendencies, there is then every room for all sorts of mischief, and that is exactly what happened later.

Period of the Fuqaha \;-# (Jurists) After the Tabi‘in followed the period of the Fuqgaha. People of this period acquired knowledge of the Deen from the Tabi‘in in the

as

the

T7dabi‘in had

done

from

employing. the same vigour exhibited by their predecessors.

same

manner,

the Companions, and enthusiasm as They polished their

47 knowledge

of Islam with their own

investigation

and research, with their unique art of narration and

Critical assessment and with their own Ijtibad and knowledge of Islimic Law. So far as the technique of Ijtihad is concerned this period is to a great extent identical

to the one preceding it.

are a few points characteristic which are worthy of note.

Firstly,

in this

period

However, there

of the later

period

they

freely

started

accepting all sorts of Mauquf and Mursal

Ahadith,

besides taking even the sayings of the Companions and

Tabi‘in

as

authentic

testimony.

One

reason

for this liberality was the view advanced that all Mauquf and Mursal Ahadith were in fact traced back right upto the Prophet himself, and had been

classified as Mauquf only for the sake of brevity. Another view believed to support it was that the Companions no doubt, had taken decisions based on some of the immutable directives u-»«i of the Quran and Sunnah and had carried out Ijtihad in the light of the Quran and Hadith,

which

in any

case

1. Translator’s Noie. Introductory note to the Urdu Translation of Hafiz lbne MHajar’s Baligh-ul-Maram (by Mohammad Sulaiman Kailani), explains these terms of Hadith as under :— Mauqif (4535+): If a tradition of a Companion of the Holy Prophet has been narrated without any reference to the

Prophet himself, such a Hadith will be graded as Mauqif. Mursal (j~.~): If in the continuous chain of narrators of a Hadith there is a break at the end, i.e. the name of the Companion at the end is not disclosed, such a Hadith is graded

48 Marsal,

48 carried much greater weight due to higher standard of their ljtihad and knowledge of Islamic Law as compared to that of their successors. And therefore their Ijtihad deserved recognition. Some people have additionally supported this view with the theory that instead of tracing the thread of a narration right upto the Holy Prophet (peace be upon him)—and

thus assuming the grave responsibi-

lity with regard to its veracity or otherwise, as also with regard to its meticulous accuracy it is safer to terminate the issue at a personality of a lower level. Secondly, if on a particular issue different sayings of the Prophet were available, the Fugaha would

scrutinize the statements of the Companions

on the subject. There would be no difficulty if they discovered anything which threw light on its abrogation.

Otherwise

any

reference

they

would

come across to the effect that the Companions were unanimous on dropping the Hadith, was considered enough testimony to give up the Hadith.

Thirdly, if the scholars of this age found that the observations of the Companions and of the Tabi‘in differed on a particular subject, they would prefer to follow

the

local

school

of thought

and

would look to the jurists and scholars of their own town for guidance as was the trend during the period of the Tabi‘ia. Accordingly we could see that the people of Madina gave preference to the sayings of Hadrat Umar, Hadrat Othman, Hadrat Abdullah bin Umar, Hadrat ‘Aishah, Ibn-e-Abbas, Zaid bin Thabit, Saeed bin Musayyib, ‘Urwah, Salim, ‘Ata bin Yasar,

49 Qasim, Zahri, Yahya

bin

Saeed,

Zaid

bin

Aslam,

Rabi‘ah etc. Fiqh of Hadrat Imam Malik has entirely been based on the traditions and sayings, and on the practice and Jjtihad of these revered personages. On the contrary the people of Kifa stood for preference to the school of Hadrat Abdullah bin Mastd and his followers, to the judgments deliver-

ed by Hadrat Ali, Qadi Shuraih and Sha’bi, and to the Fatwads

recorded

by Ibrahim Nakh‘i.

And the

amount of stress the people of Kifa laid on their preferences could be assessed from their expressions quoted in the preceding pages. Thus we find that the period of Fugaha commenced on a note of marked inclinations as explained above, culminating in laying the foundations of of Figh,

as many which we

as three standing schools shall explain in brief with

characteristics of-each. Maliki Figh Hadrat Imam Malik! (on whom be the mercy of Aliah), is the pioneer of the school of Maliki

Figh.

Imam

Malik

was

the greatest authority

on the knowledge and practice of the people of Madina, on the judgments delivered by Hadrat Umar

(Allah's

blessings

be

upon

on the sayings and Jjtihads of Abdullah Hadrat

‘Aishah

and

other

eminent

him),

and

bin Umar, Companions

(Allah’s blessings be upon them all). When he occupied. the chair of instruction and _justice, the

7. Born

93 AH. died 179 A.H-

oo La

50 knowledge and practice of these towering personages was transmitted to his comrades after having undergone at his hands severe tests of research and

scrutiny,

and integrity of narration and critical

assessment—reflecting therein full lustre of his Jjtihad and legal acumen. His comrades further elaborated and summarized these records and decided

problems through the process of derivation e+ in the light of the principles laid down by the Imam, and properly codified rules and regulations thereof. It was through the efforts of these comrades that the knowledge and practice of the great predecessors spread far and wide in various parts of the Muslim World and particularly in the North African regions. Hanafi Figh

The leading authority of Hanafi Figh is Hadrat Imam Abt Hanifat (on whom be the mercy of Allah). Imam Aba Hanifaé was a great scholar of the school of Ibrahim Nakh‘i and his comrades,

and

in all matters

through

of his

derivations,

the principles laid down

Ijtihad,

would

seek

by Ibrahim

and

research

guidance

in

Nakh‘i and

his comrades. Hadrat Shah Wali Ullah has observed, in his book Aujjatuliah-il-Baligha wil! a) dee and in his treatise Al-insaf-fi-Bayan-eSabab-ul-Ikhtilaf GOWN oe Oly G GhalVI :If you collect together the sayings of

Ibrahim

Nakh‘i, his comrades and contemporaries out of Imam Mohammad’s Kitabul-Asar )VY\ OGS , Jame‘

by Abdurr-Razzak Glyle¢ ale , and Musannaf

1. Born 80A.H. died 150 A.H,

5] cites

by Abu

Bakr

bin Shaibah,

and make

a

comparison thereof wi‘h the sayings of Imam Abu Hanifa, you will arrive at the conclusion that in his Ijtihad, the Imam rarely ever departs from the line of Ibrahim Nakh‘i’s School ; and if ever he does, he would nevertheless, confine himself strictly within the intullectual field of the jurists of Kufa,

Among the disciples of Imam Abia Hanifa two persons in particular made their mark—Qadi Abi

Yousuf and Imam Mohammad.

,

Qadi Aba Yisuf held the office of Chief Justice during the reign of Caliph Haroon Al Rashid, and was thereby instrumental in spreading the Figh of the Imam in the countries

of Iraq,

Khurasan

and

Mavara-un-nebr 4-5! ely9 (Trans-Oxus region of Central Asia). Imam Mohammad, first of all, completed his

education in Fiqh with Imam Abi

Hanifa.

Then

he went to Madina and studied Moatta bs. under the guidance of Imam Malik. It is believed that thereafter he personally undertook to compare and weigh each and every proposition wt. of Hanafi

Figh against Moatta. agreed

in

both,

Propositions which mutually were

straightaway

accepted.

However, in other cases with differences, his method was that if on a certain issue he found any group of the Companions of the Prophet (peace be upon him), or of the Tabi‘in in support of his own views,

he would adopt that point. However, thought that the case was based on weak or weak analogical deductions «':i authentic Iraditions, and the practice of

where he arguments ans that the Com-

52 panions

in general

ran contrary to it, in that case

he would select that course out of the different doctrines of the predecessors which in his eyes deserved preference. Looking broadly at their work as explained

above we could say that both Qadi Abi Yisuf and Imim Mohammad are themselves scholars of Ijtihad. However, since both of them generally do not make a departure from the creed and methodology of Imém Nakh‘i

and

his comrades,

therefore reckoned among the followers

they are

of Hanafi

Figah.

Shafi‘i Fighs Both the schools of Figh elaborated above were still in their infancy as regards their composition and compilation, when Imam Shafi’i appeared on the horizon. When he examined the methods of derivation and Ijtihad of both the schools he felt that they had certain defects. To impove upon them he laid down fresh rules and regulations for the science of Ijtihad and derivation, as also for the classification and compilation of the fundamentals and related branches thereof. Towards this end he kept in view certain important points which he has mentioned in the opening pages of his book—Kitab-ul-Umm p¥l ols, We shall reproduce here some of those points with reference to Shah Wali Ullah,

so

that

we

can

see

the field of differences of the Shafi‘i school as compared to the Maliki and the Hanafi school, and 1. Born 150 A.H. died 204 A.H,

53 understand the nature thereof. Some Characteristics of Shafi‘i School The following are some of the prominent points in which the Shafi‘i school stands out from the Maliki and Hanafi schools : 1.

It has already been explained in the forego-

ing pages that the Maliki and the Hanafi schools of Figh used to accept freely all sorts

and

Mungata’

-%%.

arrested this freedom.

Traditions.

of Mursal

Ju,

Imam _ Shafi‘i

He argued that on

scrutiny

of all the methods of narration of Hadith put together, it had been revealed that most of the Mursal Traditions were completely groundless, to the extent that some of them even ran contrary to the authentic

ones,

which

gave

rise

to

serious

disorder in the Deen. To obviate such harmful effects the Imam laid down some pre-conditions to be observed before one should accept a Mursal Tradition. It is not possible here to go into details of those pre-conditions, which however, can be found in relevant books on the principles of Figh. 2.. Secondly, the Hanafi and the Méailiki schools had not laid down a systematic procedure for collection and reconciliation of Traditions. On this account, in several cases they had to experience set-backs in their Ijtihads. Imam Shafi‘i prescribed rules and regulations for collection and reconciliation of Traditions and tried to remove the snags which caused such set-backs. He was thus a pioneer to write a book on the principles of Fiqh.

54 3. Thirdly, there were instances wherein sonie Ahddith had not reached some of the successors to the Companions ¢.°:5 who were at that time performing the duties of administration of Justice and Faiwa,

were

In that case, when on a certain

issue

in the dark about a relevant Hadith

they

they

would pronounce a verdict in the light of the Fatwas (rulings) of the Companions of the Prophet (peace be upon him) or through their own Ijtihad following the guidelines of Shariah. Now when such Ahdadith as were yet unknown to them came to light for the first time during the time of the third generation, the ‘Ulama of that period would not take them into account on the ground that th y did not fall in line with the prevalent practice and creed of the people of their own town. To their mind that was something objectionable in a Hadith as has already been explained above. Likewise, they missed

some

which had not come to light even

more

Ahddith

during the time

of the third generation. They were discovered much later when the scholars of Hadith travelled far and

wide to every corner of the land in hectic search for every single Hadith.

They probed all the media

of

narration and eventually placed before the Ummah every Hadith that any living person could unfold on personal contacts, — On such Traditions Imam Shafi held that if the people of a certain region did not take into

account certain Ahadith, by itself that did not go to prove that inherently there was

any

flaw in those

55 Ahadith.

The Companions

of the Prophet (peace

be upon him) as well successors of the Companions would in all matters, first and foremost, look up to

the Holy Quran for guidance ; but next to it would invariably

look

for a Hadith on the subject.

They

would resort to Jjtihad only in case they did not come

across

a Hadith.

If at a later stage they did

find a Hadith, they would retrace their steps, give up

their

Ijtihad,

and

instead

adopt

Therefore if people of a region

consideration any Hadith weakness

in the Hadith

the

did not

B dith.

tale

into

this hardly indicated a itself.

only be said to be weak when

A Hadith

could

the flaw had been

duly identified. It was indeed this doctrine which led Imam Shafi‘i to adopt quite a different view over the

Ahadith

regarding

Qullatain 3.33 and Khiar-e-

Majlis »=» 5':+ from that of Imam Malik and Imam Abu Hanifa. And the students of Hadith and Figh

are quite familiar with the flood of arguments

that surged on the subject during the later days. 4. Fourthly, when during the time of Imam Shafi‘i quotations and sayings of the Companions were collected, lot of variations was revealed therein. Besides, since a number of authentic Ahadith had

not reached some people. So far, some of the Sayings and quotations were actually found to clash

with the authentic Ahadith.

In such a situation

the practice of the predecessors was that as soon as a Hadith came to light they would readily adopt it. Therefore, in the event of variations in the sayings of the Companions Imam Shafi‘i did not

56 think it proper to accept the testimony sayings, and said, Slim 4) Od

of such

3 JLo ay pe®

They are human beings and we too are human beings. .

5.

Fifthly,

some

of the

jurists

of Figah,

according to Imam Shafiii hardly made

any distinc-

tion between an ‘opinion’ 35

of solution to the problems of Figh started to be conducted in the light of these principles. Taking one step further they opened the door to a kind of restricted Derivation which itself was based simply on the previous Derivations @,%5 3° @*3; so that there appeared a class of Mujtahids who carried out Ijtihad confining themselves to the

principles

of one

particular

Fiqah.

They

were

known as Gye! (3 4eiz- i.e, Mujtahids of a particular school. They were not supposed, of necessity, to

keep in touch with the Holy Quran and Sunnah. It was enough for them to memorize the books of their Imams, as also the Ijtihad and Fatwas

delivered by their Imams. And whenever any issue was brought to them, they would conveniently dispose it off through an Ijtihad based on the

67 details of the stock preserved in their memory and if

that were not possible they would base their verdict on the general precepts and injunctions of that stock and would declare it to be “OW ads Jeo ¢ydecSl Jal”

(a derivation from such and such school of thought), as a proof of their complete understanding of the Deen. This trend developed to such an extent that the Quran and Sunnah receded into alleys of a dim past as the sources of the Deen, and their authority was usurped by the principles and the Ijtihad laid down by the religious leaders. No wonder that it came to be accepted as a criterion that whosoever memorized the Mabsit bs,.. would pass for a Mujtahid. The position on the other hand was that the

custodians of Hadith ,.).~+ were extremely sensitive in defending their own principles

(which

obviously

were not spelled. out by the Quran or Sunnah, but were laid down by the scholars of Hadith themselves). What to say of accepting an interpretation from an opposite camp, they would themselves on

occasions,

choose

selection

and

to be arbitrary and unfair in the

acceptance

of

a Riwayat

! 9 S34 (Narration and Saying) and the other—

adherents of Figh and Nazar _4i 9 (jurisprudence and judgment). From the point of view of their utility and significance, neither of them could be denied its status. If Hadith be taken as the foundation, Fiqh would be reckoned as its superstructure. A building raised without a sound foundation underneath, is sure to collapse. And likewise, a foundation which is not destined to have a building raised over it, would only present a deserted sight.”

After explaining the true worth and merits of both the schools, acknowledging the need and significance of both and finally praying for a harmonious and fruitful relationship between them. Abi Suleman Khatabi proceeds to point out the

drawbacks obtaining on both sides in the following words : “So far as the Ahl-e-Hadith are concerned the highest aspiration of most of them is just to collect as many Ahadith as they can. It matters little to them what

kind of Ahadith they are.

At times they accept even

such rare Ahfadith as are based on just a single narrator —3)© major portion of which might even be

Mauda‘ €2°s or Maqlib.

They do not pay much

1. Mauda‘ Hadith—is defined as one the narrator of which is given to lies and falsehood. Maqlib Hadith—is that, in two different narrations which, the names of nafrators have been changed.

of

70 attention

to the text,

nor

try properly

to get at the

meaning and spirit of the theme, but concentrate on raising objections and criticizing the men of Figh and keep on accusing them of opposing the Sunnah. Little do they realize that they have denied themselves the wider range of knowledge available to the other group,

and

by constantly reproaching the latter, they are only

committing sin’.

Thereafter he has

and

negligence

commented

on

of the scholars

the apathy

of Figh in the

following terms: “‘Now, take the other group—the men of jurisprudence

and judgment 5% » «i. to Ahadith.

They do not give much heed

It does not matter to them if a Hadith

genuine or weak.

is

What concerns them is whether the

Hadith which has reached them agrees with their own views and convictions or not. If it does, they would not hesitate to use it as a lever to knock out their

adversaries

in debates.

These gentlemen happen to be

very careless in accepting Da‘if 2 §:4 Ahadith!, On that inditterence

and Munqata’ they all appear

to have joined hands and are happy so long as these Ahadith gain easy popularity with their supporters and are readily assimilated by them. They are not worried

if the source worthy,

1.

of the Hadith

be thoroughly

untrust-

and the possibilities of error on the part of the

Da‘if Hadith—is

one which

Hasan Hadith ; or a certain

narrators; or a certain

link

narrator

is contrary

is missing

in between

to Sahih or

in the chain

of

is not found to

qualify.

~* Munqata Hadith—is that form of Da‘if Hadith in which a narrator is found to be missing in the middle of the chain of narrators.

71 harrator be very great. Contrarily however, if you narrate in front of them something out of the Ijtihad of one of their own Imams, they would react differently

and would first like to question and establish the worth and authority of the narrator, even though the matier may purely be of the nature of Ijtihad. The Méailiki sect would accept the sayings of just the top-notch

scholars of their own school of thought, like Ibn-eQasim or Ashhab w+-\>\ + and refrain from laying undue stress on such points in the face of more convincing evidence. In this manner when both the groups draw closer to each other at a point of conciliation a

major cause of mutual irritation will automatically be eliminated. 3. The third factor which encouraged differences is the trend to follow just one particular

Imam,

bowing only to his Ijtihad and his sayings.

Naturally, as a result of that exclusive

followers

of different Imams

are

attitude the

bound

to stay

away from each other. The gap is likely to widen further when each group firmly believes verity and righteousness to be the sole monopoly of its own Imam and his school of thought. That sort of prejudice must inevitably stem from the blind following of a single person, and it is almost impossible for such a follower to escape its harmful effects, Except for the Holy Prophet (peace be upon

him) Islam has not conferred on anyone else that towering status in deference

from

his

to which

every

word

lips-be quietly accepted without any

98

criticism.

In fact our Shariah calls upon

every

educated person that in all affairs of the Deen he must make full use of his intellect and understand-

ing, and should not act upon a thing until he makes

sure

that what

he is going

to follow

conforms

to the tenets of the Shariah laid down by Allah. In case, however, a person is not educated enough to be able to fully understand the commandments

of Shariah directly he is duty bound to seek the guidance of persons in whose knowledge and _piety he has full faith, irrespective of their affiliations to

any Imam or sect. There is no room in Islam for a born Hanafi or a born Ahl-e-Hadith. It is the sacred duty of our ‘Ulama’ elle to make

these prejudices

them.

endeavour

than

create

to obviate

or aggravate

They must rid the Muslim Millat of the evil

of sectarianism

Ullah,

every

rather

just as, according

to Shah

Wali-

the Muslims of the pre-fourth century were

innocent of it. They must develop in the Muslims a high sense of respect for genuine knowledge righteousness rather than for sects

and

groups,

and so

that for guidance in matters concerning the Deen they look up to every such person in whom they

observe these sterling qualities.

An effective way

to bring about a change in mental approach, and inculcate a spirit of broad-mindedness is that, instead of teaching the Figh of one particular Im4m in our religious institutions,

students

in

comprehensive

should thus be producing

we

Islamic

educate

the

Fiqh.

We

scholars who would be

99 free from sectarian prejudice and would cherish complete Islamic Fiqh as their proud heritage. Such scholars would select out of the whole Islamic

Figh

whatever

lies

closest

to the Quran

and

Sunnah and would not only act upon it themselves with an unbiased mind, but would guide others too to act upon the same.

4, The fourth point which has been a cause of so many disputes of Figh is the display of unwarranted prejudice and intransigence by the people instead of a spirit of tolerance and broad-mindedness in important matters like Ijtihad. In its final

verdict any Ijthihad can be right, and it can even be wrong—even though it may be from the penofa scholar of the highest calibre.

It is therefore that

while a Mujtahid 4;=- is himself bound by his own Ijtihad, he is neither competent to impose it on others, nor does it grant a right to any one to elevate it to the status of Nasus o*>5.«) (the immutable commandments of the Quran and Sunnah), and assuming that right, to take up arms against others. If, for instance, a person considers it necessary to

perform

Rafa‘ Yadain ;:4: -) (lifting up hands upto

shoulders during prayers), he may well act upon

But then

it.

he has no right to go around quarrelling

with others on this point.

Nor do others have any

right to be after his blood just because in Rafa‘ Yadain.

he believes

So far as our revered Imams are concerned,

we

have already quoted a few instances of their broad-

minded approach ‘in the preceding chapters.

We

100 have seen that not only did the Ijtihad of others have great weight with them, but they would even go so far on occasions as to give preference to the ]jtihad of others over their own and act upon it. The real cause of prejudice and fanaticism in fact is ignorance. To begin with, the present day education in Figh is generally sect-oriented and the scholars of a particular group have

no

Opportunity

to acquaint themselves with the point of view and arguments of the other groups. Secondly, people of each group are generally conscious only of the propositions

ji...

facing

their

group.

However,

the arguments advanced in favour of those propositions are mostly not available to them. Therefore they are inclined to assign a rather exaggerated place to their own verdicts. In case they were acquainted with the Ijtihad of others too. as also with their supporting arguments, this would

most certainly help them acquire a balanced outlook. And if they acquaint themselves at least with the relevant arguments supporting their own

verdicts they would certainly be able to understand

and appreciate their verdicts in a proper perspective.

They would surely be able to understand that in a matter concerning which they are laying so much of stress, what is the source of that matter in the Deen, and what is the status of that source ?

HOW

TO RESOLVE DIFFERENCES IN AN ISLAMIC STATE

The followers

of different

OF FIQH

schools of Figh in

this country have no doubt, unanimously demanded introduction of an Islamic order in the State, and no

group,

however

small, has ever opposed it for any

possible hypothetical fears.

In fact apart from the

different groups of Fiqh. even certain sects with convictional differences have upheld the majority demand. In spite of that happy position there is room for apprehensions that the opponents of the Islamic order will try to undermine the faith of some

of them with scheming designs.

It seems necessary

therefore to identify the response of a truly Islamic government

towards

matters

relating

to Fiqh, so

that ignorance of such issues may not give rise to misgivings on the part of anyone. Moreover it should help to clear any misunderstanding

in good

time in case any group be upholding the majority demand for an Islamic order with undue expectations in mind. In order to identify the approach of a truly Islamic State towards the affairs of Fiqh we must

bear in mind two fundamental things :—

1. One—that an Islamic State does not take notice of all the details of the articles of Faith o\:! or of the details of convictions és and practice Jles! 101

102 of the people. It is simply concerned with Islam—in other words, in a limited way, with such apparent practices and convictions as are reflected in the collective and socio-political life of the community.

Broadly speaking we can say that the direct concern of an Islamic State will purely be with matters such as the fundamental belief in the Unity of Allah ~2=53, and Prophethood