Differences in Islamic Law

by Najah Nady

Allah (subhanahu wa ta`ala – exalted is He) has created humans with a variety of differences in languages, colors, interests, perceptions, and idiosyncrasies. These differences are a normal and universally accepted aspect of the nature of life and they are glaring proofs of the Almightiness and Omnipotence of Allah. Allah (swt) said, “And if your Lord had willed, He could have made mankind one community; but they will not cease to differ” (Qur’an, 11:118) and, “And of His signs is the creation of the heavens and the earth and the diversity of your languages and your colors. Indeed in that are signs for those of knowledge.” (Qur’an, 30:22)

Differences give rise to competition, in its positive sense, among people in their efforts to contribute to the development of the world and to the betterment of humanity across the ages. It is impossible to even try to imagine a world where no differences in opinions or outlooks exist, within such complex networks and social structures. It is these differences in minds and capabilities that allow for positive interactions and exchanges, which form the building blocks of the world we live in today.

This brings us to the topic of this paper: the wisdom behind differences in Islamic law (shari`ah) schools and how it brings about mercy and flexibility to Muslims. Within this paper questions arise such as:

What is the etiquette toward making the utmost use of these differences?
How can we identify the lawful and unlawful?
How do we deal with the negative effects which may arise due to disputes among people of different views?
Are there any disciplinary judgments that teach how to deal with jurisprudence differences?
What is the relationship between ijtihad (jurisprudence reasoning) and the fiqh of differing upon shari`ah laws?

Unity of the Ummah and Fiqh of differences in Shari`ah

Islam has stressed two main shari`ah issues more than anything else: “the testimony of monotheism” and “one Ummah’s word.” The first leads to a deep and pure belief in God; the second is a practical reflection of the first as it unites believers under one God, through the same prophet, and with the same holy book. Consequently the Ummah must have common rules and methodologies. Allah (swt) mentioned this issue in many Qur’anic verses as He said, “Indeed this, your religion, is one religion, and I am your Lord, so worship Me” (Qur’an, 21: 92). He also said, “And hold firmly to the rope of Allah all together and do not become divided. And remember the favor of Allah upon you – when you were enemies and He brought your hearts together and you became, by His favor, brothers. And you were on the edge of a pit of the Fire, and He saved you from it. Thus does Allah make clear to you His verses that you may be guided” (Qur’an, 3:103).

Prophet Muhammad emphatically stressed for the nation’s unity. In a hadith reported by Anas ibn Malik, Allah’s Messenger ﷺ said, “Do not hate, nor get jealous, nor enemies, and be O servants of Allah, brothers. It is not lawful for a Muslim to let his relations estranged with his brother beyond three days” (Bukhari).

Allah (swt) told us in the story of Moses and the Children of Israel that the prophet Aaron apologized to his brother Moses (peace be upon them) for not punishing the believers and waiting for him when the people of Israel started to worship the calf. Aaron’s excuse was to keep the bond of unity among the Children of Israel, for their dispersion would fall upon his responsibility:

And Aaron had already told them before [the return of Moses], “O my people, you are only being tested by it, and indeed, your Lord is the Most Merciful, so follow me and obey my order.” They said, “We will never cease being devoted to the calf until Moses returns to us.” [Moses] said, “O Aaron, what prevented you, when you saw them going astray, from following me? Then have you disobeyed my order?” [Aaron] said, “O son of my mother, do not seize [me] by my beard or by my head. Indeed, I feared that you would say, ‘You caused division among the Children of Israel, and you did not observe [or await] my word’”(Qur’an, 20:91-95).

Aaron considered that the division and disagreement among his people was more of a problem than their disobedience. This held him back from denouncing them.

Scholars of Shari`ah have concluded of this lesson, that the unity of Muslims, is something that Muslims cannot sacrifice when running into differences. Imam Ibn Taymiyah stressed on this explicitly. He wrote in his book Majmu’ al-Fatawa, “The coalition of the Ummah is one of the assets and principles of Islam, and the minor issues are but sub-branches. So how can one hold on the branches, and differ upon the principles?!”

The identity of Islam is crystal clear, as are its fundamentals, which have been agreed upon by consensus; that is the five obligatory prayers, alms-giving, fasting Ramadan, etc. It is permissible for Muslims to follow any of the schools of thought (Madhahib) as long as it has a sound knowledge background and supporting evidences. Differences in Madhahib and jurisprudence opinions are but a means of enriching the intellectual landscape of Muslim scholarship, on condition that they remain within the scope of legitimacy. The principle of consultation (shura) legislates differences in opinion when it comes to Shari`ah law. Allah (swt) said in Quran, “So pardon them and ask forgiveness for them and consult them in the matter.” (Qur’an, 3:159).

The Biography of the Prophet Muhammad ﷺ narrates many situations where the Prophet ﷺ consulted his companions, and listened to them with an open mind and heart, and he never rebuked their differences in opinion. He ﷺ encouraged them to think, be creative, and gave them all freedom to speak their thoughts expressively. Youth were even encouraged to make Ijtihad (jurisprudence reasoning) whenever they came over any issue that did not have a clear rule. In a hadith narrated `Amr ibn al-`Aas, Allah’s Messenger ﷺ said, “When a judge gives a decision, having tried his best to deduce the right ruling, and succeeded, he shall have a doubled reward. And if it (the ruling he strived to deduce) turned to be wrong, he shall have a single reward.” Based on this hadith, we are required to strive and exert our utmost and sincere efforts and means in trying to reach the right ruling: this is the meaning of Ijtihad.

It is also necessary to combine between knowledge and moral ethics. We should not turn the discretionary opinions and schools of thought into a variety of ideological partisanship and political intolerance. Ibn al-‘Arabi said: “A (sound) scholar does not reach sublime maturity in knowledge until he overcomes honorably all forms of fanaticism.”

Differing over the minor and supererogatory issues happened during the Prophet’s companion’s lives (radi Allahu `anhum – may Allah have mercy on them). Imam al-Qasim ibn Muhammad ibn Abi Bakr said, “Allah (swt) granted us benefits from the companions differing over issues. No one follows their opinions (or acts in accordance to one of them), but that he shall recognize how easy it is, and that a better person had once performed this act.”

Imam Sha’rani narrated in his book Al-Mayzan Al-Kobra (The Great Balance), that Shaykh al-Islam Zakaria al-Ansari said, “ Shari`ah is like a sea; if one drinks from any of its shores, (they) are all the same (in goodness).” He also quoted Imam Ibn Abd al-Barr as saying, “We had never been asked by any of the Shari`ah school Imams to follow a certain school of thought (madhab), but it was reported that they permitted people to follow fatwa rulings of each other because all are equally guided by their Lord.”

We believe that the Islamic law is extraordinarily diverse, it is suitable for all times and all places, and it does not lack internal development, we have to recognize the vastness of its development. If there were two million life issues subject to debate in the Islamic Shari`ah, only a hundred out of these were met with complete consensus.

Differences/Ijtihad

In this context, we would like to quote Shaykh Abdullah Bin Bayyah saying, “Shari`ah is suitable for all eras and regions. This is achieved by the deployment of Ijtihad in perpetually connecting time and Shari`ah, in literature, objectives, and principles. This is based on two foundations: intellect and interest, as well as interpreting three objectives: [dealing with] essentials, needs [and] improvements. The existence of such a vast space for Ijtihad naturally colors Islam with three characteristics: forbearance, reconciliation, and ease.”

On the basis of what Shaykh Bin Bayyah has said, we can determine that the term Ijtihad (rational reasoning) and the legitimacy of the differences are co-related. Allah (swt) allows people to use their minds, and the Prophet Muhammad ﷺ teaches his followers how to deal with the religious sources (the Qur’an and Hadith), and encouraged them on Ijtihad even in his presence. This clearly implies that differences are expected and permissible.

Knowing how to reason and derive laws from given texts and materials are embedded in the Muslim Ummah’s ethos, and is a benchmark in the intellectual tradition to Islam. Allah (swt) encouraged His Messenger ﷺ and the Muslim nation to resort to rational reasoning when facing a situation about which a clear religious text was not revealed. One implication of the hadith we mentioned before narrated by `Amr b. al-`Aas is that Allah (swt) and the Prophet ﷺ have given the Ummah the permission to do Ijtihad and have shown its great importance.

Another clear evidence for this Hadith is narrated by Ibn Umar:

“On the day of Al-Ahzab (i.e. clans) the Prophet ﷺ said, “None of you (Muslims) should offer the `Asr prayer but at Banu Quraida’s place.” The ‘Asr prayer became due on the way. Some of them said, “We will not offer it till we reach the place of Banu Quraiza” while some others said, “No, we will pray at this spot, for the Prophet ﷺ did not mean that for us.” Later it was mentioned to the Prophet ﷺ and he did not berate any of the two groups.” (Bukhari)

It is obvious from this evidence that the Prophet ﷺ allowed them to work with what they understood of what he said after thinking about it, which is the wisdom behind Ijtihad.

However, given its essential importance and the necessity of the rational reasoning process, the scholars specializing in Usul al-Fiqh (Fundamentals of Jurisprudence) have placed firm foundational rules to regulate and control it. Doing this has preserved the religion against claiming falsifications not supported by a solid basis of proper knowledge. Some of these foundational rules come from the scholar (Mujtahid), while some are derived from the textual evidence and their validity for law derivation.

By way of an example, let’s take the issue of sighting of the crescent of Ramadan, which should not exceed its limit as a differed-upon issue (the same as the two million other debatable issues in Shari`ah). Allah (swt) said in the Qur’an, “Every one of you who is present (at his home) during that month should spend it” (2:185). There is a difference or opinion between scholars in the consideration of the differences of longitude from one country to another. If the crescent appears somewhere in the East, does it mean that all Muslims in the world (east and west) are required to follow this country and fasting according to the rising of the crescent in this country? Or should each country follow the crescent rising in this same county?

There are many opinions concerning this single issue, and everyone can follow what suits his situation best. It is possible to fast according to any other country, it is possible to wait for each country to see the crescent itself, and so on. All these are valid.

Thus, this difference among jurists and scholars is a source of mercy. However, we should first be trained on how to deal with such differences.

Rules to deal with differences:

Scholars of Islamic law such as Imam Al-Suyuti, Al-Zarkashi, Al-Shatebi and others had set several rules in order to control and manage differences among jurists, in hopes of rationalizing the debates and avoid the disadvantages of intolerance.

The first rule: “Verily, the issues of consensus are only permitted for reasoning and deduction, while the contested ones should not be.”

According to this rule we should not belittle the other’s thoughts nor should we deny the benefits we can get out of the other’s different points. Moreover, we should not undermine the importance of a scholar’s thinking or what is true of his views even if we are not going to adopt the views because there is a difference between accepting and adopting.

Second rule: “Whenever one is inflicted with a differed-upon issue, he shall follow the opinion which sets this issue as permissible.”

This rule is of utmost importance when it comes to the practical realities of Muslims all over the world. The multitude of solutions for each issue or problem forces one to think thoroughly through the situation they are facing, and ultimately guides them to the appropriate answers. This is proof of the flexibility of Shari`ah in dealing with different people, situations, and cultures. Allah (swt) has said, “Allah intends for you ease and does not intend for you hardship and [wants] for you to complete the period and to glorify Allah for that [to] which He has guided you; and perhaps you will be grateful” (Qur’an, 2:185).

Third rule: “It is recommended to flee away from the differed-upon matters, and follow the matters common among schools of thought.”

In this light, I would like to note that the Prophet Muhammad ﷺ explained the concept of complete faith in the hadith, “A person will not attain the level of complete faith until s/he loves for humanity what s/he loves for him/herself.” I believe this cannot be attained until we free our minds and hearts from the slightest particle of envy or hate against anyone. The journey to reach this level of faith is long, and I hope that we can work together in order to reach this level of faith. The classical scholar Abdullah ibn al-Mubarak (may Allah have mercy on him) said, “We are in dire need to attain the slightest portion of delicacy and moral treatment, rather than the great portion of knowledge.”

To sum up, Islamic shari`ah has legitimated the jurisprudential differences, and has stated some rules in order to effectively deal with these differences. There are some considerable morals within the general Islamic teachings which we should follow and put into consideration when dealing with others:

The brotherhood, which is one of the Islamic principles, should be above the agreement or the disagreement on the debatable issues. We have to put this into consideration in order to strengthen the bonds of cooperation among Muslims and instill the value of moderation and tolerance among the youth.
Dialogue and discussion should be seeking truth, and should not have pride or arrogance. Narrated Abu Hurairah, the Prophet ﷺ said, “The wisdom (wise lessons deduced) is the goal of a believer, so he should seek it wherever is possible.”
One should consider the one who he disagrees with as his partner, not his opponent, and should thank him when he shows him the truth.
One should not talk and argue in any issue without proper knowledge; Allah (swt) has said, “And do not pursue that of which you have no knowledge. Indeed, the hearing, the sight and the heart – about all these [one] will be questioned” (Qur’an, 17:36).
It must be understood that Islamic law was revealed for humans’ happiness in both realms: this world and the Hereafter, and to ultimately serve their best interest within the conditions bestowed by Allah upon his servants. Allah (swt) did not request His creation to do anything they cannot endure. As He (swt) said in the Qur’an, “He has chosen you and has not placed upon you in the religion any difficulty. [It is] the religion of your father, Abraham. Allah named you “Muslims” before [in former scriptures] and in this [revelation] that the Messenger may be a witness over you and you may be witnesses over the people. So establish prayer and give zakah and hold fast to Allah. He is your Protector; and excellent is the Protector, and excellent is the Helper” (22:78).
The principles (maqasid) of Shari`ah must be considered in the process of Ijtihad and so does the consequences of the ruling in reality. It has a significant role in facilitating Shari`ah.
Following the moderate approach (to be balanced) is mandatory in the Islamic paradigm, as Allah (swt) said, “And thus we have made you a just community that you will be witnesses over the people and the Messenger will be a witness over you” (Qur’an, 2:143).

That was some of the Islamic teachings in dealing with the jurisprudential differences. It is a priority to respect each other and always spot the common points and mutual understanding in order to deal effectively as human beings.