Juristic Differences

Juristic Differences


Editorial

The Qur'anic text, although it is the Word of God protected from corruption and human interference, is expressed in human language which is the Arabic used at the time of revelation of Qur'an by the Arabs1. Despite its miraculous clarity2, its message could be, and has been, misunderstood by readers on many occasions, in spite of their good intentions because of their human limitations. There was an indisputable solution to the problem of interpretation of Qur'an in the person of the Prophet (sws) so long as he was alive. He clarified all misunderstandings about the message of the Qur'an and Sunnah and gave unquestionable verdicts on disputes arising in that connection. Indeed, as mentioned earlier, it was an important part of his Prophetic obligation to clarify the message of the Qur'an. With his demise, that important privilege was lost to the Muslims. Ever since, Muslim scholars have been unable to agree on many, if not most, of the important issues of Islamic jurisprudence. These differences are neither surprising nor regrettable. In the absence of a general agreement, however, it is vital to decide clearly how to deal with them individually as well as collectively. But before that, a word about the significance of these differences.

Anyone familiar with the work done on the Islamic Shari'ah in the last fourteen hundred years will not hesitate to agree that juristic differences amongst Muslims scholars are a general rule rather than an exception. The four famous schools of Islamic jurisprudence are named after the illustrious jurists who were the originators of their respective schools of thought. Although they all acknowledge that the Qur'an is the first source of the Islamic Shari'ah followed by the Sunnah of the Prophet (sws), there are still considerable differences in the principles they have derived from these original sources. Amongst these schools, the Hanafites rely mainly on analogy (Qiyas) and social utility (Istihsan). To the Malikites, an authentic Hadith from the Prophet's companions is more reliable than Qiyas. Moreover, to them, of all the reports about the practice of the Prophet (sws), the more reliable are those which are in compliance with the customs and traditions of the inhabitants of Madinah, the Prophet's city. The Shafites acknowledge the superiority of Ijma' (consensus) over a Hadith transmitted only by a few persons or not confirmed by several narrators. The Hanbalites' approach is not very different from the Shafites' except that in their view authentic H~adith is superior to Qiyas, Ijma' or the Prophet's companion's own interpretation. Moreover, a part of the differences among these schools of jurisprudence are attributable to the fact that they represent attempts to interpret the Shari'ah under different set of circumstances.

The reason why the number of juristic scholars is not larger than it could be can only be attributed to the tendency of unquestioned acquiescence to a certain school of thought (Taqlid) among a large number of latter-day scholars. Since directly accessing the original sources began to be considered a prerogative of the earlier scholars, many of the later doctors of Islamic law faithfully confined themselves to the task of applying the principles of their predecessors to contemporary issues. A few exceptions apart, the process has continued until now. Nevertheless, the differences in the first two centuries of the Muslim calendar had already assumed such proportions that it can rightfully be claimed that hardly any important area of Islamic law has remained unaffected.

Now the problem arises that an individual is bound to confront difficulties in choosing one point of view from amongst a number of those available in his attempt to follow the Qur'an and Sunnah. How can he achieve that objective given the differences on various issues?

There can be no one answer for all people. For religious scholars who have the ability to understand the original sources properly, the only way to follow the Shari'ah is to follow it in accordance with their own understanding of it. Those who do not possess that ability but can still appreciate the relative strengths of the contesting arguments, the opinion appearing to be the most convincing should be the one they should follow, even though that might result in accepting verdicts of different scholars on different matters. Scholars too will have to adopt this strategy in the areas they have not researched as yet. If there are individuals who are unable to find out clearly the most strongly supported case, they may then accept the opinion of the scholar who enjoys their confidence more because of his good character and sound knowledge.

Taqlid, despite being the predominant way of deciding about a religious verdict amongst a large number of the present-day Muslims, cannot be justified from the teachings of the Qur'an and Sunnah. First, because it implies that those following this approach have taken a decision not to use their own intellectual abilities. That is clearly against Qur'an3. Second, because it has to be assumed by those adopting this approach that the scholar they have chosen to follow is fault-free. There is none, according to the Qur'an, who is, apart from the Prophets, divinely guided and, therefore, fault-free.4 Third, Qur'an itself condemns the approach of those who choose to follow others instead of using their own intellect in religious matters.5




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