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CHAPTER: IV
F I Q H D I S A G R E E M E N T S A N D T H E I R S Y N T H E S I S
Shah W ali-u A llah ’s religious thought is extensively devoted to the nature,
science and schools o f fiqh. H is concern w ith the fiqh ow es considerably to his study o f
thp classical literature on the subject and the deep insight into the science o f hadith
acquired by him w hile his stay at the H arm ain1. The significance o f fiqh in the broader
fram e-w ork o f ulum-i Din (religious sciences), its source m ethodology and the nature o f
d isagreem ents am ong the various fiqhi schools are the m ain issues treated by W ali-u
A llah in his w ork2. Before attem pting at the analysis o f Shah W ali-u A llah ’s synthesis
o f the fiqhi disagreem ents in the present chapter, we shall first study the scicnce o f fiqh,
its sources and the disagreem ent which took place during the early ages o f Islamic
history.
Science of Fiqh
Fiqh literally m eans ‘understanding’ or ‘k now ledge’ or in te lligence’3. The
1. Cf. Mazhar Baqa, Usui Fiqh aur Shah Wali-u Allah, Islamabad, Pakistan,1973, PP.26-38 and Shah Wali-u Allah : A Saint Scholar of India, Islamabad, 1979; PP.50-52. See also supra chapter 2, pp.
2 His Hujjat Allah-al-Baligha, Al-lnsaf fi Bayan As^bab al-lkhtilaf, Al-’lqd *Jid fi Ahkam-i Ijtihad wa al- Taqlid and Izalat al-Khafa’ ‘an Khilafat al- Khulafa; are worth to mention.
3. Edward William Lane, Arabic English Lexicon, Part 6, P306, Asian EducationServices, New Delhi, 1985.
116
Q u r’an has it used m ore than one tim es in its broader sense4. In hadith it depicts the
same m eaning5. In the early period o f Islam , fiqh com prises o f all-em bracing principles
and laws o f Islam - beliefs, w orship and social dealings. A t the advent o f the influence
o f the Greek Sciences upon the M uslim s, know ledge dealing w ith beliefs began to be
called ilm al kalam (science o f Beliefs) and A bu H anifah (d. 150/767), called it fiqh al
akbar (the greater understanding)6. The com prehensive nature o f fiqh evolved a change
to the ex ten t that it w as d istinguished from 'ilm ‘Ilm w as attributed to know ledge that
com es from the authority - God or the P rophet(SA W )7. Tow ards the end o f the first
century H ijrah, those persons w ho reported hadith w ere called as m en o f 'ilm ’
(know ledge) and those w ho exercised their intelligence and gave legail decisions were
know n as fuqaha (jurists). A s a result o f i t , fiqh em erged as a specific and independent
science8. It confined itse lf in exercising hum an th inking upon the application o f nasus
(texts) in junctions and the furu'at (subsidiary rulings) o f the S hari’ah. The Q ur’an
4. Al-Qur’an, Tauba, 120.
5. See the following two ahadith of the Prophet (SAW) : “With whom Allah wishes to do good he is granted the understanding of Din (Islam) by Him”. Bukhari.
“People will come to you (Companions) for attaining the understanding of Din. Whenever they would come for this purpose, I advise you to behave well with them”. Trimizi (The citation is from M.T.Amini, Fiqh Islami Ka Tarakhi Passi-i- Manzar, Islamic Publishers Pvt. Ltd., Lahore, 1986, p.35.
6. Cf. Ahmad Hasan, The Early Development of Islamic Jurisprudence,Islamic Research Institute, Islamabad, Pakistan (1970), P.3.
7. Ibid; PP.4-5.
8. Ibid.
117
and the Sunnah provide the m ain principles and the laws for hum an life. Furu’at -
subsidiary laws for the particular and the new situations o f hum an life w hich are being
operated by the intelligence and judgem ent o f the fuqaha. N evertheless the broader
fram e-w ork o f the Q u r’an and the Sunnah rem ain the basis for their judgem en t9, All
those who began to write works on this particular science during the early period o f
Islam ic history either arranged hadith o f legal rulings or w rote their legal decisions in
book-forni. ‘A bd A llah ibn. al M ubarak (d. 181/797) is reported to have com piled a book
entitled ‘ilm having the arrangem ent o f legal to p ic s10. From the m iddle o f the second
century I lijrah a num ber o f books were written exclusively on fiqh. The decendants o f
A bu H anifah (80-150/696-767), A bu Y usu f (d .182/798) and al-Shaybani(d. 189/804)
w rote w orks which are described as the first system atic w ritings on the subject Al-
Muwatta o f M al-ik (94-179/712-795) is also rem arkable for its in term ingling o f fiqh and
hadith. It w as, how ever, a l-S hafi’i (150-205/767-820) w ho developed the fiqh in a
system atic w ay in tw o o f his w orks - Kitab al Umm, and al-Risalahu . The fiqh*
form ulations and m ethodology is extensively elaborated in these w orks and have been
highly valued by the fuqaha o f the successive generations.
9. Cf.Z.I.Ansari, “An Early Discussion on Islamic Jurisprudence”, Islamic Perspectives, New Delhi, (1987), PP.150-151.
10. Ahmad-Hasan, Op.Cit, P.9.
11. Cf.Allama M. Khudri, Tarikh al Tashri al-lslami (Urdu Trans, by Abdul SalamNadvi), Darul Musnifin, Azamgarh (1961) PP.344-356 and Tahaii Jabir alAlwani, Usui al Fiqh al Islami, The International Institute of Islamic Thought,USA, Herdon, PP.33-44.
118
Fiqh as the science o f rulings or laws o f the S hari’ah has four sources - the
Q ur’an, the Sunnah, Ijm ’a and qiyas. The Q ur’an and the Sunnah are the basic sources
• 19wlulc ijm a' and qiyas are dependent sources o f the S hari’ah .
T h e Q u r ’an
A t the very root o f M uslim conception, Shari’ah is regarded essentially Divine.
Its source is the D ivine revelation. The M uslim s believe that the Q ur’an is the m ost
perfect and the final revelation o f G od to m an and acts as the prim ary director to hum an
life and the source o f law. The Q ur’an w as revealed in tw enty three years to Prophet
M uham m ad (SA W ) and it contains statem ents and addresses suited to the occasions
about w hich they have been made. The M eccan period o f revelation is m ainly devoted
to the unity o f G od (Tawhid), beliefs, inculcation o f m orals (salihat) and eradication o f
evil practices. The M edinan revelatien is on the organization o f a righteous society o f
the M uslim s. Here the injunctions regarding fam ily life, econom y, crim e, war, treaties,
contracts, etc. are revealed for leading an organised social life13. The Q ur’an is,
The Sources o f Fiqh
12. Although ‘Shari’ah is the knowledge closely related to the Qur’an and the Sunnah it is sometimes synonymously used with the term fiqh’, The latter is to a large extent the product of human endeavour. Cf. Taha jabar al Alwani, Op.Cit., PP. 138.
13. Dr.Riyaz-ul Hassan Gilani, The Reconstruction of Legal Thought in Islam, Markazi Maktaba Islami, Delhi (1982), PP.55-56.
therefore, the code o f rulings o f general as well as the specific nature. The num ber o f
general verses exceeds to those o f specific ones. In it lies the w isdom o f A llah, for the
book is meant for all tim es to com e and the general nature o f its teachings and rulings
suits to the developing and progressive matrix o f hum an civilization. The fuqaha
(jurists) epitom ise the Q ur’an as the basic code o f hum an conduct. They categorize its
rulings into (wo Imtadcr classes (lie lutlal (law ful) and (lie liarani (unlaw ful). The
categorisation is further extended, in the light o f the Q ur’an and the Sunnah, to other
legal d iv isions - mandub (recom m ended), mukru (disapproved) and mubah (neutral) -
w hich w idens the scope o f fiqh14. All M uslim s have concensus on the Q ur’an as being
the prim ary source o f the shari’ah for all tim es. The differences arise in m atters o f the
in terpretation and the application o f the rulings o f the Q ur’an. To resolve the differences
the ulam a have form ulated certain rules for the interpretation o f the laws and regulations
o f the Q u r’a n 15. A m ong them include the know ledge o f Arabic lexicon, the nasikh and
the m ansukh, the Shan-i nazul and the nazam o f the Q ur’a n 16 and their know ledge
m akes one to understand the Q ur’anic teachings and law s properly vig-a-vig their
application in day to day life.
14. Ahmad Hasan, Op.Cit.,, PP.34-39.•t
15. See for example Jalal ud-Din Suyuti, Al-ltiqSn fil Ulum al-Qur’an and Shah Wali-u Allah, Fauzal Kabir fil Usul-i Tafsir.
16. Some useful points have been also discussed with regard to the Qur’anic science by Dr.Riaz-ul Hassan Gilani, Op.Cit., under the heading “Rules of Interpretation”, PP.59-68.
120
The Sunnah
By the Sunnah is m eant the exem plary conduct o f Prophet M uham m ad(SA W ).
The Q ur’an was revealed to him and it ordains him to interpret and explain its teachings
and laws to the people both in w ord and deed17. This characterises the Q ur’an as the
theoretical m odel o f the Shari’ah and the Prophet as its practical m odel. Both are, thus,
18closely in terlinked and either o f the tw o cannot be isolated from the o ther . On the
authority o f the Q u r’an, the Prophet acts as legislator and law -giver o f the Shari’ah. His
conduct is described as ‘the best m odel’ to be follow ed in to to 19. It constitu tes his own
sayings and deeds and the practices o f his Com panions w hich attained his approval. His
m odel character is also term ed as H adith. In general sense both convey the same
m eaning20.
The P rophet’s sayings, irrespective o f their being related to faith or social
m atters, constitu te Sunnah and serve as rulings for the guidance o f the com m unity. The
sayings can even have the basis on the rulings previously revealed in the Q u r’an or serve
17. A l-Q ur’an, Al-Nahal, 44 and al-Nisa, 105.
18. Ibid., Al-Nisa, 60 and 65.
19’. Ib id., Ahzab, 21.
20. Ahmad Hasan, Op.Cit.,, P.87. The Sunnah Serves as a source of the Shari’ah in three ways- it colloborates a ruling which originates in the Qur’an, it may consist of an explanation or clarification of the Qur’an and may also consist of rulings on which the Qur’an is silent.
121
independently to establish legislation21. The Q ur’anic statem ents are m ore in
com prehensive ijmali (precise) m anner and details and furu 'at (branches) are left to the
explanation o f the Prophet (SA W ) . For exam ple the Q u r’an says, “Allah likes those
who like to keep them selves pure”22. It is the Prophet w ho has explained the details o f
ipurity by the practice o f istanja (cleansing the excretory parts o f hum an body) and
taharah (purification). In the Q ur’an there is the m ention o f jinabah (im purity after
sexual, in tercourse and sem inal em ission) in which one cannot offer his prayers. The
Prophet explains jinabah and circum stances to which it is applicable23. The Q ur’an
contains the instructions o f ablution, salah, fasting, hajj, inheritance, m arriage, tayyibcit
etc. and the Sunnah explains their details, necessary for hum an life. Hence P rophet’s
rulings relating to both faith and social m atters called Sunnah and act as the prim ary
source o f fiqh24. The Sahabah were w itness to his rulings w ho heard them , understood
them properly and follow ed them in their practical life. From the Sahabah, the T ab i’un
(Successors) received the Sunnah and onw ards it becam e a continued ‘p rac tice’ with the
T ab i’un (successor) and their successors. This consistent adherence to the Prophet
am ong the first two generations o f Islam is ordinarily term ed as Sunnah by som e
u lam a25.
21. Taha Jabir al Alwani, Op.Cit., PP.7-8.22. Al-Qur’an, al-Taubah, 108.23. M.Sayyid Abul ‘Ala Mawdudi, Sunnat ki Ayinl Hithiyat, Markazi Maktaba
Islami Delhi (1990), PP.89-90.24. Ibid.25. Ahmad Hasan, Op.Cit.,, PP.96-97.
122
The I jm a ’
Ijm a’ literally m eans ‘assem bling’ , ‘se tting’ or ‘co llecting’26. In the fiqh it
m eans concensus or settling o f a religious issue, the nature o f concensus, how ever,
varies on account o f the historical situations. As such there is the concensus (ijm a’) o f
the m ajority o f the com m unity on a religious issue27, the another kind o f concensus, is
described as those o f the fuqaha o f a particular age on the issue in question28. The third
k ind is also d iscernible w here m ost o f the fuqaha agree upon a certain point in question
and som e disagree w ith them . In the tim es o f the Sahabah the first kind o f ijm a’ is
found, w henever a new issue arose and they did not find its answ er in the nasus o f the
Q ilr’an and the Sunnah, they resorted to consult the other Sahabah. The pious K hulafah
used to call upon the Sahabah, had consultations w ith them on the issues and the
opinion they, agreed upon, becam e the S hari’ah ruling w hich was follow ed by the w hole
com m unity29. The appointm ent o f Abu Bakr, as the first K halifah o f Islam and that o f
‘U m ar and ‘U thm an w as also m ade on the concensus o f the com m unity. Their rulings
issued from tim e to tim e on social affairs do com e under this kind o f ijm a’ as there
26. Edward William Lane, Op.Cit, part 2, PP.455 and T.P.Hughes, Dictionary ofIslam, Rupa and Co..Delhi, 1988, P.197.
27. Cf. Muhammad Y, Farooqi, “The Development of Ijma”, The AmericanJournal of Islamic Social Sciences,, Vol.9, Summer, No.2, Herdon, U.S.A., P.183.
28. Ib id.
29. Ahmad .Hasan, Op.Cit., PP.164-165.
i
123
arose hardly any objection to reject their agreed upon ruling (ijm a’). D uring the tim es o f
the T ab i’un and their Successors the M uslim com m unity extended far and w ide and
ijm a' in this easy m ode o f the Sahabah becam e m ore or less im possible. The ijm a’ and
the fuqaha o f the local regions settled the religious issues o f their people. Their decrees
w ere al large and acted upon by the local fuqaha o f the tim e and follow ed by the people.
This m ode o f ijm a’ can be described as ijm a’ o f the fuqaha and its evidence is found in
the Iraqian School o f fiqh30. The th ird m ode o f ijm a’ w here m ajority o f the fuqaha are in
agreem ent and a few disagree with opinion or ruling, is also given the status o f ijm a’
•7 I
and it is p revalen t in the m odem tim es .
The reference to ijm a’ is found both in the Q ur’an and the H adith. The Q ur’an*
exhorts the M uslim s to have consultation in their m utual affairs32. The traditions —
“M y U lm ah w ill never agree on a deviation”33 and “W hatever the M uslim s consider
good is also good in the sight o f A llah”34 obviously recognize ijm a’ as the principle o f
the Shari’ah. H istorically the questioft o f ijm a’ arose w hen the Sahabah faced the new
problem s and decided to resolve issues by ‘consu lta tion’. The fuqaha o f the succeeding
ages gave their decrees on the religious problem s w hich is a kind o f ijma ’-i ijtihad and
3Q. Ibid., PP. 165-166 and see M.M.Taqi Amini, Fiqh Islami Ka Tarkhi Pass-i Manzar, Islami Publications Ltd., Lahore, 1986; PP. 153-154.
31. Cf. Mohammad Y. Faruqi, Op.Cit., P.184.
32. Al-Qur’an, al-lmran, 159 and ai-Shura, 38.
33. See M.M.Taqi Amini, Op.Cit., (1986), P.144.34. Ibid. ’
124
the people follow ed their rulings. All the four Schools o f fiqh recognize ijm a’ as the
source o f the Shari’ah. It is assum ed that A bu H anifah w as the first ju ris t w ho m ight
have discussed ijm a’ as the source o f fiqh with his pupil, M uham m ad Hasan al-
Shaybani, as the latter has m ade an attem pt to give an intellectual basis for it35. W hile
d iscussing the usfil (principles) o f fiqh, al-Shabani enum erates the Q ur’an, the Sunnah,
ijm a’ and qiyas as its sources. A bu Y usu f (d. 182/798) also follow s this m ethod,
form ulated by his teacher. Im am M alik (d. 179/795) also recognises ijm a’ as the source
o f fiqh. Imam al-S hafi’i (d .204/819) discuses ijm a’ in his cil-Risalah and al-Umm
w here he accepts it as a legal doctrine and a source o f fiqh. He, how ever, bases it on the
evidence o f the Q ur’an, the Sunnah and the practice o f the C om panions and disagrees
w ith the ijm a’ based on ra ’y (opinion)37. The other ju ris ts o f his school like al-M aw ardi
and aI*Ghazali accept the ijm a’ based on ra 'y or istidlal. A hm ad Ibn H anbal (b. 164/780)
and the ju ris ts o f his school accept ijm a’ as a legal doctrine. He has tw o opinions o f
ijm a’. O ne is that he recognizes only ijm a’ o f the Com panions and the second is that he
view s it as m andatory in every age38. Later I lanbali ju ris ts like Ibn al-Fara and Ibn
Q udam ah accept ijm a’ a valid authority on fiqh m atters. A part from its
35. Mohammad Y. Faruqi, O p.Cit, P.179.
36. Although he is alleged of upholding onlyth-e ijma’ of the people of Medina yet there is no evidence of his rejection of the ijma’ of Ummah.
37. Mohammad Y. Faruqi, Op.Cit.
38. Ibid.
125
m inor differences, the classical definition o f ijm a’ accepts it as the concensus on the
Shari’ah ruling. Due to its technical nature and specially its practice is lim ited to those
who are qualified for ijtihac/39 and are called fuqaha and ulam a interchangeably while
Gazzali and A m idi call them ahl al hall wa 'al 'aqd. or mujtahidun.
Q iyas
Q iyas is another dependent source o f the S hari’ah. Literally it m eans ‘m easuring’
or ‘ad jo in ing ’40. In the term inology o f the fuqaha it m eans to resolve the issue in
question on the basis o f illah (effective cause) in the context o f previous decree or
precedcnce. The previous decree is either the text (nass) o f the Q u r’an, the Sunnah or
the estab lishm ed practice - ijm a’.
The use o f qiyas in fiqh is found right from the tim es o f the Prophet him self41.
W hat distinguished the early use o f qiyas from that o f the successive tim es is
found in its varied term inology an d 'm o d es . D uring the tim e o f the Prophet (SA W )
and his Sahabah it was term ed as rd ’y (opinion) and exercised for the interpretation
and the application o f the Q u r’an42. The Q ur’anic verses — “ So take heed, o, you
w ho have eyes to see”43 and “ So that (som e people) m ay understand the w ay o f
39. M.M.Taqi Amini, O p.C it, PP. 147-148.
40. Edward William Lane, Op.Cit, part 7, P.2577.
41. Ahmad Hasan, Op.Cit., PP. 177-178.42. Ibid.
43. Al-Qur’an , al-Hashr, 2.
126
A llah”44 - substantiate to the exercise o f ra y. Those who exam ine things through their
senses, attem pt to gain understanding (tafaqu) o f Din w ith hikmah (w isdom ) are
characterised as the desirable triats by the Q ur’an45. The Sunnah also recognizes the
exercises o f ra ’y in the legislation o f laws for new situations. There is am ple evidence
about the P rophet’s (SA W ) exercise o f ra ’y in the day to day m atters o f life. H is use o f it
is guarded by A llah and w henever it falls tow ards error it is corrected by revelation46.
This renders the ra ’y o f the Prophet infallible. The tw o traditions narrated by the tw o
w ell-know n Sahabah o f the Prophet (SA W ) nam ely M ’adh bin Jabal and A bu M usa
A sh ’ari propound the exercise o f ra ’y in legal m atters in clear term s47. A ll the four pious
K hulafah o f Islam resorted to ra ’y w hen they faced the new problem s.48 They
categorically stated that i f their opinion com es true it is from A llah yet i f w rong it w ould
be from Satan49.
44. A l-Q ur’an, al-Tauba, 122.
45. A l-Q u r’an, al-’lmran, 64 and Al-Baqarah, 269.
46. Cf. M.S.Abul A’la Mawdudi, Op.Cit,, PP.102-105.
47. Taha Jabir al-Alwani, Op.Cit.,, PP.8-9.
48. Ibid.
49. According to one Tradition of the Prophet the mujtahid is doubly rewarded. If his opinion comes out true he is doubly rewarded. If not so then the jurist will get the single reward for his sincere exertion of thinking to operate the correct ruling of the Shari’ah. Taha Jabir al-Alwani, Op.Cit., P.10.
127
A ll the four school o f fiqh have system atized ra ’y. It gradually took the form o f
Q iyas50. This is found in the fiqh o f A bu Hanifa, Im am M alik, a l-S hafi’i and Ibn
Hanbal. Abu Hanifah and his students - A bu Y usu f and al-Shaybani - developed the
use o f Qiyas in their fiqh works. The school also evolved the concept o f istihsan
(public good) in fiqh w hich is the extensive use o f Q iyas tak ing into consideration the
public equity, their social behavior and custom s51. Imam M alik also recognizes Qiyas as
a source o f fiqh and its exam ples are found in his al-Mawatta. Like A bu H anifa he
establishes m ore com prehensive doctrine called al-masalih al-mursalah (general good
or interest). It ensures that law rem ains sufficiently elastic and adaptable to deal with
unexpected problem and its m ain purpose is the w elfare o f the peop le52. A l-S hafi’i
considers qiyas as a source o f fiqh and it is to be applied, acco rd ing to him , when there
is no guidance in the Q ur’an, the Sunnah or the ijm a’. He confines ijtihad to Qiyas
(analogical reasoning) and does not recognize its exercise by ra ’y53- He has established
the principle o f al-istishab (presum ption o f continuity)in his fiqh w hich is equivalent to*
A bu H an ifa ’s istihsan and as such resorts to ra ’y, leaving Q iyas aside, in order
to concentrate on the equity o f the people54. The follow ers o f his school o f fiqh like
50. Ahmad Hasan, Op.Cit., PP.136-138.
51. Mohammad Y. Faruqi,’’Early Fuqaha on the Development of Ijtihad”, HamdardIslamicus, Hamdard Foundation Pakistan, Karachi, Vol.XV, Autumn 1992, No.3, P.7.
52. Ibid., P.11.
53. Ibid., P.15.54. Ibid.
128
al-M aw ardi, al-G hazali and A l-A m idi, how ever, accept the exercise o f ra ’y in deducing
legal rulings o f the Shari’ah. A hm ad Ibn H anbal also accepts qiyas as the source o f fiqh
and considers even ijm a’ as the outcom e o f Q iyas55. H is follow ers like Ibn Q udam ah,
Ibn Taym iyah and -Ibn Qaym all recognize qiyas as a source o f the S hari’ah and apply it
to the legal rulings.
Ikhtilaf in Fiqh
Ikhtilaf in A rabic m eans taking a different or d issim ilar w ay or opinion in things,
affairs or cases56. This suggests that a person can differ from the o ther in his opinion,
utterance or action. In its broader sense ikhtilaf docs not accept the direct opposition to
som ething. It is because the tw o opposites are necessarily d ifferent from each other
w hereas tw o things or opinions that differ are not necessarily opposed or in conflict to
each other. D ifference im plies difference in leading to argum entation and m utual
w rangling. The term ikhtilaf may, therefore, represent a m ere d ifference o f opinion or*
im ply active controversy, discord or schism . The Q ur’an m akes a m ention o f ikhtilaf
(disagreem ent) in all these three senses. It speaks o f C hristian sects that differed from
one ano ther57, o f people w ho held divergent view s and positions58, o f others w hose
•f
55. Ib id., P.16.
56. Edward William Lane, Op.Cit, part 2, P.795.57. A l-Q u r’an, 19:37.
58. A l-Q ur’an, 11:118.
129
beliefs and utterances were discordant in relaxation to the tru th59, and o f G o d ’s eventual
judgem ent o f people w ho differed am ong them selves; and on the issue on w hich they
differed60. In this way ikhtilaf may refer to absolute d iscordance in beliefs, opinions or
attitudes. It could also refer to differences in situations or positions w hich people m ay
follow 61.
W ith regard to the d iscipline o f fiqh differences (ikhtilajat) are here confined and
system atized. D ifferences im ply here the differences o f deducing rulings o f the Shari’ah.
The m ethod o f interpretation and derivation o f the Shari’ah law s goes w ith argum ents
and counter argum ents in fiqh. Founding o f mcdahib (schools o f law ) and the adherence
(itibah) to these schools led the em ergence o f fiqhi differences extensively in Islam ic
history. Shah W ali-u A llah exam ines these fiqhi difference and attem pts at their
synthesis. By synthesis is m eant his review o f the reasons o f the differences em erged
am ong the Sahabah. the T aba’uii and the fuqaha or iamah to approach the possibilities
o f their reconciliation and moderatioii*on reliable grounds.
Shah Wali-u Allah’s Approach to the Disagreements During the Sahabah
In his synthetic approach, Shah W ali-u A llah first finds out the reasons o f
ikhtilaf am ong the Sahabah and the T ab ’un. He believes that the Sahabah w ere the
59. Ibid, 51:8.
60. Ibid, 10:93.
61. Cf. Taha Jabir ‘Alwani, The Ethics of Disagreements in Islam, TheInternational Institute of Islamic Thought, Herdon, USA, 1993, PP.11-12.
130
people w ho had very little differences on the legal issues because they avoided them to a
great extent62. Their differences arose due to the non-availability o f the specific hadith,
the historical situation and the far fetched interpretations o f the P rophet’s practice. They
depict little logical and dialectical rigour in their approach to the S hari’ah63. Shah W ali-
u A llah in his review , enum erates the follow ing reasons o f their fiqhi differences.
a) The first reason is stated as the know ledge o f the particular hadith or ahadith
w ith w hich one Sahabah was acquainted and the o ther had not such advantagous
position .T he form er decided the issue on the basis o f it w hile the latter had to
resort to ijtihad. Som etim es the ijtihad o f the Sahabah w ould com e out exact to
the ru ling o f the hadith64. A bdullah ibn M as’ud ’s ijtihad on the question o f m ahr
o f the w om an w hose husband died before sharing the bed w ith her, cam e out
true by confirm ing to H adith, serves as an exam ple. Ijtihad is left aside w hen it
contradicts to the decision o f the Hadith. It is borne out in A bu H arirah’s
considering the break in the lasting for one$remaining_/Mw/6/ (im pure on account
o f sexual intercourse) upto m orning. He secedes from his opinion w hen he is
objected by the pious w ives o f the Prophet (SA W ) w hose practice does not
ju stify the fo rm er’s op in ion65. W hen the hadith does not conform to the Q ur’an,
62. Shah Wali-u allah; Al-lnsaf fi Bayan Asbab al-lkhtilaf (Urdu Tr. by Sadr al-Din Islahi), Ikhtilafi Masa’il Main Ptidal ki Ray, Markazi Islami, Delhi, 1987, P.10. Henceforth the book will be also cited as Al-lnsaf in the present work.
63. Shah Wali-u Allah, Hujjat Allah al Baligha, P.341.64. Shah Wali-u Allah, Al-lnsaf, P. 16.65. Ibid.
131
the Sahabah hardly use it in their fiqh. ‘Um ar, the second K halifah o f Islam,
rejects the H adith narrated by Fatim ah bin Q ayas stating that the Prophet neither
perm itted nafqa (m aintenance) to her nor house after she had received three
talaqs (divorces). ‘U m ar rejects it for its being contrary to the tex t o f the
Q ur’an66. Sim ilarly 'Aishah refutes the view o f Ibn ‘U m ar on the question o f
w om en’s bath by stating that she needsnot to spread out all her hair to w ash on
the occasion o f bath (ghasal) w hich, according to 'A ishah, has been approved by
the Prophet (SA W )67.
b) The difference also arise on account o f the Sahabah’s determ ining the practice o f
the Prophet. The P rophet’s practice is w itnessed by m any o f them but the
interpretation depends on ind iv idual’s understanding and capacity. Som e o f
them interpret the particular practice o f the Prophet as ibadah w hile others call it
mubah (perm issible). The P rophet’s getting dow n in the valley o f A btah during
his Hajj jou rney is conceivedjas ibadah by A bu H ararah and Ibn ‘U m ar w hileas
‘A ishah and Ibn A bbas consider it an accidental event and it does not form the
part o f the Sunnah68. Sim ilarly the Sahabah interpret variedly ‘reml ’ (putting
66. Ibid, PP.17-18.
67. Ibid, P.19.
68. Ibid.
132
forth the body net in w alk ing to show fearlessness) o f the Prophet w hich he did
on the occasion o f tawaf o f K ’abah69.
c) The w eak m em ory or forgetfulness caused the Sahabah to differ on the issues.
Ibn ‘Um ar narrates that the Prophet (SA W ) had one ‘Um rah in Rajab. ‘A ishah
differs from him on the issue by saying that Prophet had not any ‘U m rah in the
m onth o f R ajab70.
d) D eterm ining the HI ah o f the practice o f the Prophet (SA W ) also caused the
differences am ong the Sahabah. They interpreted variedly the P rophet’s standing
up w hen a funeral body o f a Jew passed by his side. Som e o f the Sahabah
determ ined the cause o f his standing position as to show honour to the angles
w ho used to be w ith the jinZizah o f both M uslim and non-M uslim . O thers
interpreted its cause m erely the funeral body o f a Jew ; w hen it w as carried by the
side o f the Prophet the latter iliil not want.fto be above his head and thus stood
up. The second group o f the Sahabah, unlike the form er, confined the follow ing
o f the practice only in case o f the funeral procession o f the non-M uslim 71.
e) The difference arose am ong the Sahabah on the use o f tatbiq betw een a hadith or
practices o f the Prophet w hich apperently seem to be contradictory. On the
69. Ibid. P.20.
70. Ibid. P.22.
71. Ibid. P.23.
133
occasion o f K haybar war, the Prophet allow ed m u t’a and later on prohibifcSt. On
the w ar o f A tas the perm ission for m ut’a was resum ed again yet was stopped
soon. Ibn A bbas is o f the opinion that the perm ission for mut ’a has been granted
because o f exigency and w hen the exigency ceases to ex ist the perm ission is
receded although the ruling is there. The m ajority ho ld that the P rophet’s
perm ission o f m ut’a was a mubah ruling and it w as later on forbidden by the
Prophet perm anently. They term it abrogated (mansukh) and do not find any
72contradiction betw een such a hadith on mut ’a .
A p p ro a c h to th e D ilTcrcnccs A m ong the T a b i’un a n d th e ir S uccesso rs
T ab ’un were the people who learnt fiqh from the Sahabah w hen the latter were
either sent to the o ther provinces o f the khilafah as teachers and qadis and spread over
the various places after U thm an’s shahadah- v is-a -v is the consequent political crises in
the Khilafah73. Since the Sahabah, says W ali-u A llah, are at variance in their legal
rulings, it is inherited by the T ab i’un74. The latter heard the had ith from the Sahabah
preserved their m adhahib for using them in their fiqh. They preferred the decision o f
<»
one Sahabah to that o f the o ther and som etim es ignored the decree o f the Sahabah
had ith75. O w ing to their adherence to the iam ah - Sahabah and the influence o f the
72. Ibid.
73. Supra n. 61, PP .57-58 .
74. Shah Wali-u allah, Op. cit., P .25 and Supra n.63, P .346.
75. Ibid.
134
local situations the tib i’un ulam a form ed their own m adhahib in their local cities.
A lm ost in all the cities o f A rabia the m adhahib o f fiqh started developing on the pattern
o f the respective iam ah76. For exam ple in M edina, people fo llow ed S ’ad Ibn M usayb
(d.94/712) and Salim Ibn A budullah (d. 107/725). In M akka A tta Ibn Abi R abbah
(d. 114 /732), in Kufah Ibrahim N akh’i (d. 96/714) and Shabi (d .103/721), in Basrah
H asan B asari (d. 110/728), in Y em en Ia ’w us K iasan and M ukhul (d. 113/731) in Syria
becam e the i ’amah o f the people77. The others learnt from them hadith, sayings and
fatawa (decrees) the Sahabah v is-a-v is their own decisions and sayings on the grow ing
issues o f the society78.
The period is rem arkable for w itnessing the early developm ent o f fiqh and the
tw o fiqhi schools - o f M edina and Kufa - attained the prom inence. Both the schools
differ in their opinions and m ethods o f operating laws. The school o f M edina, led by
s a ’id Ibn M usaib, based its fiqh on the fatwa and sayings o f ‘U m ar, U thm an, A bdullah
Ibn ‘um ar, A ishah and Ibn ‘A bbas79.This school decides the m atters on the basis o f
ijm a’ o f U lam a-i M edina and w here ever they found som e variance they restored to
ra 'y. R esorting to ra ’y becam e preferable to them either on its use by the m ajority o f the
ulam a or on its conform ing to the clear deduction from the Q ur’an and the Sunnah80.
76. Ibid., PP.25-26.77. Ibid.
78. Ibid., and Supra n. 63, PP.346-347.
79. Shah Wali-u Allah, al-Ansaf Bayan Asbab al-lkhtilaf , P.26.80. Ibid.
135
The school differs from the K ufan school, led by Ibrahim a l-N akh’i on the latters’
01
seeking answ ers to the legal m atters in the fataw a o f A bdullh Ibn M a s’ud and ‘A li .
A ccording to W ali-u A llah the school preserved the decrees and sayings o f their leading
82ulam a and extracted legal rulings from them like those o f the u lam a o f M edina .
D uring the period o f the successors o f the T ab i’un the fiqh developed in a
system atic w ay and the differences betw een the schools are here conspicuously
expressed. The ulam a am ong the successors (Taba T ab i’un) becam e trustees o f
know ledge, w hich cam e through the T ab i’un-ulam a and the form er learnt from them the
w ays o f ibadah (w orship), social dealings v is-a-v is hadith and preserved the decrees o f
the qadis (jurists) o f their respective cities83. A ccording to Shah W ali-u A llah the
m ethod o f the fiqh o f these schools represent follow ing outstanding characteristics :
a) They used both musnad (isnad o f a hadith, uninterrupted and goes back to the
P rophet) and mursal (transm ission o f a sucessor from the Prophet directly
dropping the C om panion from the isnad) hadith in their fiqh84.
b) They had concensus on this point that they could use the sayings o f the Sahabah
and the T ab i’un to operate law s o f the S hari’ah - as S har’i istidlal. Their use o f
81. Ib id., P.27.
82. Ibid.
83. Ib id., P .29.
84. Ib id., P .30.
136
the sayings w as based on the tw o reasons : (1) The sayings could be hadith o f the
Prophet w hich they rendered, under the circum stances, in muquf form s (a kind
o f hadith in w hich the Sahabah does attribute the content directed by the Prophet
to the Com panion). W hen Ibrahim al N akh’i and im am S h ’bi was asked about it
they replied by saying that they did so to avoid the fear o f m isquoting the
Prophet. To them it is better to quote from the Sahabah than from the Prophet
(mcirfu hadith) as the form er are reliable source o f the Sunnah85. The second
reason w as that the saying could be the ru ling w hich their i’am ah had extracted
from the Q ur’an and the Sunnah by way o f ijitihad86.
c) W henever they found an inherent contradiction in any hadith they resorted to the
. sayings o f the Sahabah and on the latters’ opinion they term it either abrogated
(mansukh) or beyond the proper understanding87.
d) W henever they found the difference o f opinion betw een the Sahabah and the
T ab i’un on any issue they usually did turn to the madhab (legal ruling) o f the
ulam a and the teachers o f their local cities. They did so because they considered
their m aster-ulam a as fully conscious about the m erits and the short-com ings o f
their predecessor ulama-aslaf. For this Im am M alik (d. 179/786) m aintains that
85. Ibid.
86. Ibid. P.31.87. Ibid.
137
the practice 011 which people o f M adina had concensus could w ork as hujjah
(proof) o f the Shari’ah. The people o f Kufa, on the o ther hand, resorted to their
own m adhab, developed by their local i’am ah on the basis o f the sayings o f
A bdullah Ibn M as’ud, ‘Ali and the decrees o f Qadi Sharah, S ha’bi and Ibrahim
N ak h ’i88. This dependence upon their local m asalik (fiqhi approaches), led
A lqam a to raise an objection to M usruq bin al- A jd a’ (d .63/682) on the la tte r’s
preference to follow the saying o f zaid bin Thabit w hich the people o f M adina
did fo llow on the issues o f tashrik (lending land for cultivation on sh a re -b asis to
on
any other person) . It show s that the ulam a o f this period, according to Shah
W ali-u A llah, used to prefer the opinions, decisions or sayings o f their local
teacher-ulam ah, or i ’am ah on questions o f legal im port.
Approach to the differences Among the Popular madhahib (Schools) o f Fiqh■»
The fiqhi sayings o f the predecessor ulam a and i ’am h found such a system atic
and extensive use after the tab i’un that it finally led to the em ergence o f several popular
m adahib o f fiqh (schools o f ju risprudence). A m ong them four schools attained the
w orld-w ide fam e and are nam ed after their founders — M aliki, Hanafi, S hafi’i and
H anbali schools. In approaching the differences am ong the first three schools, Shah
W ali-u A llah ’s conclusions are little different from those w hich he draw s about the
successors o f the T ab i’un. The reason is that the i ’amah w ith w hom the schools are
88. Ibid., P.32
89. Ibid., P.33.
138
associated coincide, at large, w ith the age o f the T ab i’un and the existence o f the
difference seem s apparent.
A ccording to W ali-u A llah, M aliki school is based on the hadith transm itted
through the predecessor ulam a o f M adina, on the decisions o f ‘um ar, ‘A bdullah ibn
‘Um ar, ‘A ishah and the other seven fam ous fuqaha90. It is d istinguished for its naqli
(reported) character o f a hadith and atharn . The ‘narrations’ and the sayings o f Imam
Mfllik have been collected by his pupils and com m ented upon critically by them .
Mawatta o f Im am M alik, view s the Shah, is a good representation o f the fiqh
m ethodology o f th is school. The school o f A bu H anifah follow s the pattern o f Ibrahim
N ak h a’i ’s line o f ulam a o f the T ab i’un. The differences betw een M alik i and Hanafi
schools, according to the Shah, are found in their treatm ent o f takhrij (derivation o f
legal rulings). The form er takes it ordinarily w hile the latter m akes its use extensively.
In the school o f A bu H anifah, it is found that his pupils - A bu Y u su f and Imam
M uham m ad ibn H asan differed from him on certain issues93. On>
90. The seven fuqaha (fuqaha Sabb’ah) are S’eed bin Musayb (2) Urwah ibn Zubair (3) Qasim ibn Muhammad ibn Aby Bakr siddiq (4) Abu Bakr ibn abdul Rehman Makhzumi (5) Kharijah ibn Zayd ibn Thabit (6) Ubiad ullah ibn Abdullah ibn Utbah Mas’udi (7) Sulyman ibn Yasar Hilali.
91. Supra n. 79, P. 37.
92. Ibid.
93. Ibid., P.38:
139
such occasions they leave aside their m aster’s opinion for its being w eak or he prefers it
to any other saying o f the Kufan alim that seem s reliable to him . In the M aliki school o f
ju risprudence W ali-u A llah hardly draw s such kind o f differences betw een the teacher
and his pupils.
Imam Shafi’i, how ever, seem s to the Shah as differing from the above
m entioned schools o f law on m any points. These points are o f the m ethodological
nature, relating to the use o f nusus sources o f the S hari’ah. Shah W ali-u A llah refers to
the fo llow ing points about the disagreem ents betw een Im am Shafi’i school and those o f
A bu H anifah and Im am M alik:
a) Imam S hafi’i objects the other tw o schoo l’s use o f mursal (a hadith
transm itted by the successor from the Prophet d irectly dropping the
C om panion from the isnad) and munqatah (an isnad having a single link
m oving som ew here in the m iddle, in one place or m ore) ahadith
(T raditions) w hich adm ittedly tend to unreliability94.
b) S hafi’i does not consider the ijtihadat o f the o ther tw o Imam s as reliable
for their ignoring o f the tatbiq betw een the nusus — texts o f the Q ur’an
and the hadith. This is, according to the Shah, illustrative in Shafi'i
d iscussion w ith Im am M uham m ad on the question o f the required
num ber o f w itnesses for legal cases
94. Ibid., P .40.
140
and on the issue o f wasiyah (w ill) to the heir at the tim e o f legato r’s approaching
death95.
c) Shafi’i holds that the T ab i’un ulam a had rem ained unacquainted w ith m any such
ahadith w hich were collected properly by the later scholars o f Islam . In presence
o f an authentic hadith, considers Imam Shafi’i, the ijtihad o f the T ab i’un stands
unreliable and the form er is unequivocally valid. W hile citing the exam ple o f
'hadith-i-qultain' and 'hadith-i Khayr-i majalis ’ w hich rem ained unacessible to
the T ab i’un and as such could not becom e the part o f Im am A bu H anifah and
M aliki fiqhi ru lings96.
d) Shafi’i also objects A bu H anifa’s use o f istihsan and considers it a
m isunderstanding o f the difference, betw een the r a ’y and the Qiyas. Shafi’i
• • 07recognizes qiyas on the basis o f the nusus rather than on ra y .
T h e P lace o f A hl al H a d ith a n d A hl al r a ’y in F iq h D isag reem en t
The period that follow s soon after the successors o f the T ab a’un classifies,
according to Shah W ali-u A llah, the fiqhi disagreem ents o f the ulam a into tw o broader
divisions, One is term ed as ahl al hadith (the traditionists) and the o ther as ahl al ra ’y
(the rationalists). A lthough the rudim ents o f both the schools are found in the earlier
95. Ibid., P.41.96. Ibid., P.44.
97. Ibid., P.45.
141
form ulations o f the fiqh, yet in the course o f history they tended tow ards such a
direction that w idened the scope o f the fiqh rem arkably. A bout the school o f ahl al
hadith, Shah W ali-u A llah view s that it was the aptitude o f som e o f the Sahabah and the
T ab i’un to avoid ra ’y in their fiqh. They avoided it to guard them selves against falling
into error by confusing the law ful (halal) w ith the unlaw ful (haram) or vice versa. Their
concern w as to operate the legal rulings solely from the nnsus and the athar98. The trend
continued am ong the succeeding ulam a o f the tim es and it reached the extent that Imam -
i Shabi (d. 103/721) had to say that the saying, attributed to the Prophet, only is worth
fo llow ing and the one that com es from a person’s opinion should be a v o id ed " .
The group o f ahl al hadith m ade a fresh research in the collections o f hadith and
sim ultaneously, took full advantage o f them for deciding their legal issues. Their
extensive endeavors in collecting the hadith, calling others for its com pilation and
attem pting at the scruiting o f hadith led to the classification o f hadith for their veracity
and the degrees o f reliability. Such dhdeavors brought a vast treasure o f hadith to light
and they becam e easily accessible to the fuqaha for deciding the m atters in a specific
w ay and w ith reliab ility100.
A bout the contribution o f ahl al hadith to fiqh, Shah W ali-u A llah, m akes a
m ention o f their fo llow ing characteristics :
98. Ibid., P.48.
99. Ibid., P.49.
100. Ibid., P.50.
142
a)
b)
c)
d)
101.
102.
103.
104.
Alial al hadith or llie Iradionists were the ulam a w ho had been prim arily
concerned w ith the science o f hadith and they turned to fiqh gradually101.
U nder the ulam a o f ahl al hadith the fresh research was m ade in the collection,
secruitiny and the classification o f hadith into various degrees - mursal,
munqatcth, gharib. mushier, etc. This obviated the doubt about hadith and
explored the Shari’ah rulings w ith reliab ility102.
The school, for the first tim e, discouraged the liking for taqlid o f a particular
im am or ulam a o f local cities. They did so, because having enough access to the
hadith they found som e o f the decisions o f the fuqaha contrary to the hadith.
A lthough they follow ed the faqhi or their m adhahab in certain circum stances but
they d id not becom e the strict follow ers (muqoladin) o f the madhahabm .
T heir m ethod o f extracting laws o f the Shari’ah was that on any issue when they
found clear guidance from the»Qur’an, deviation from it w as not perm issible. On
the issue in question in w hich the com m andm ents o f the Q ur’an adm its m ore
than one in terpretation their decisive factor w as the S unnah104.
Ib id . P.53.
Ib id. P.52. Ib id . P.54. Ib id.
143
f) W hen the Q ur’an w as silent on the issue in question they sought guidance from
the Hadith. In such a case they follow ed Hadith irrespective o f its fam iliarity
with the ju ris ts or popularity confined w ithin any fam ily or the Sahabah and the
fuqaha’s acting upon it. To them ijtihad is o f no use in presence o f a H ad ith105.
g) W hen,in spite o f their deep research, they did not find any H adith on the issue
they resorted to the sayings o f the Sahabah and the T ab i’un. Their recourse to
such sayings w as different from the earlier ulam a w ho sought answ ers to their
local ulam a. The ahl al H adith sought answ ers from the athar o f the m ajority o f
the fuqaha and those o f the K hulafa al-R ash idun106.
f) W henever they found the opinions o f the fuqaha at variance they used to prefer
e ither o f that person w ho w as renow ned for his know ledge, piety and m em ory o f
Hadith or o f the ju ris t w hose saying had gained popularity am ong the people. In
case the saying o f both the ju ris ts had equal w eight they term ed the m atter as
double-decreed issue and any o f the tw o decrees could be fo llow ed107.
g) If none o f the conditions, m entioned above w as available to guide, then the
course w hich ran closest to the basic principles o f the Q ur’an and the Sunnah,
105 Ibid.
106. Ibid., P.55.
107. Ibid.
144
to their subtle allusions and to their dem ands on the believers, was adopted by
the ulam a o f ahl al H ad ith108.
The other school o f fiqh called ahl al ra ’y (rationalists) em erged, according to
Wiili-u Allah, during llie lim es o f Imam Malik and Sufyan Thuri. Its nourish ing and
popularity in far and near cam e, how ever, late in the history. To this group o f ulam a
asking queslions on m ailers was not w rong nor they hesitated in giving decrees on the
issues, they held that the fiqh is the basis o f Din (religion) and to spread its know ledge
and science is an im portant duty. A bout their m ethod and fiqhi differences with the
group o f ahl al Hadith, Shah W ali-u A llah observes :
a) The school. Al ahl al ra ’y hesitated in citing a Hadith directly from the Prophet
(SA W ) under the fear that any error m ight be com m itted by them while
narrating or transm itting the Hadith. They w anted to be at safer side and
safeguard them selves against attributing any false saying to the Prophet and
com m it a s in 109.
b) A hl al ra ’y group, unlike the traditionists, did not take it their concern that they
should collect the athar o f the various Sahabah and ulam a and have critical
evaluation and discussions on th em 110. W hile ignoring th is task they had no
a c c iss to the enough treasure o f fiqhi sayings to decide their legal m atters.
108. Ibid.
109. Ibid., P.67.110. Ibid., P.69.
145
c) Since enough a H adith and the athar w ere not available to the group o f ahl al
ra ’y they had to depend upon the decrees and the sayings o f their i ’am ah w hom
they regarded as o f high status in the field. This developed a deep faith in them
about their local ulam a and directed tow ards the adherence o f the latters
principles and the decrees o f fiqh111.
d) Shah W ali-u A llah calls this approach o f ahl al ra ’y to fiqh a takhiiji (derivation)
process. In it the alim or ju ris t who propounds ijtihad o f his m aster or imam is
w ell learnt in the latter’s fiqh and m em orises their sayings, know s the principles
o f preference o f the one saying to the other, etc. to exercise his ijtihad. By this
m ethod he could derive legal rulings from the aqwal o f his m aster to resolve the
em erging issues o f the society112.
e) In its extensive form the takhrij m ethod, according to W ali-u A llah, becam e>
takrij dar takhrij (derivation from derivation) w ith the group o f the ulam a o f ahl
al ra ’y. It is found in them w hen they had no exact decree or saying on the issue
and they had to resort to the illah or allusions o f the decree to resolve the issues.
I lore they arc at variance with ahl al hadith who neither confined their rulings to
the particular i ’am ah nor practise the takhrij m ethod o f the re la tionalists113.
111. Ibid.112. Ibid., P.70.
113. Ibid., P.71.
146
f) A ccording to Shah W ali-u Allah the extensive use o f the takhrij m ethod in fiqh
by the rationalists tended them tow ards the confinem ents o f their ijtihad w ith in
the particular m adhab. He is o f the opinion that the em phasis o f ahl al ra ’y on
derivation o f the law by a particular alim or on the m ethod o f a particular imam
or on m em orising the mabsut (recorded sayings) o f the m aster m ujtahid,
characterizes their ijtihad as ijtihad fil madhab114. Such use o f the ijtihad m ade
them little attentive about the Hadith. U nlike ahl al H adith, their m ajor
concentration w as on the extensive use o f reason rather than on collecting
H adith and applying them to the new situations
S yn thesis o f the F iq h i D isag reem en ts
Apart from his review o f the em ergence and the nature o f fiqhi disagreem ents
during the various stages o f Islam ic history, Shah w ali-u A llah seem s m uch concerned
w ith synthesis and m oderation o f fiqhi differences in his w ritings. This synthesis or
m oderation can be understood at various levels in his religious thought and analyzed
briefly as follow ing:
In the first p lace Shah W ali-u A llah conceives the synthesis o f the fiqhi
differences as found in its early schools. The differences am ong these early schools -
the Iraqi and the M edina schools - w ere not in the fundam ental principles o f the*
S har’iah but in furu ’at (subsidiary laws). N or was there any deliberate attem pt from the
114. Ibid., P .72.
147
either school to differ from the other. The differences arose from their exercising o f
ijtihad on the particular problems o f the society. To the Shah, it is the method o f
extracting the Shari’ah rulings adopted by the fuqaha that makes them to differ from one
another in their op inions115. The method o f the Iraqian school o f fiqh which was led by
Ibrahim al N a k h ’i, tended more towards istinbat (the process o f extracting laws) from
the Q u r ’an and the sunnah than to marfu ahadith. In principle the school, never denied
the Hadith marfu and it was, states the Shah, under their fear o f attributing a saying to
the Prophet (SA W ) that might comeout incorrect and led them to com m it s in116. To
avoid this fear they resorted to m uquf and mursal ahadith in juxtaposition with musnad.
The M edina school o f fiqh which was led by S a ’yid ibn M usayb, on the other hand,
concentrated more on the Hadith and the athar than on istinbat. The reason for this was
that the fuqaha o f M edina had easy access to the Hadith com e dow n through the
practices o f the Sahabah and transmitted by their Successors (T ab i’u n )117. Unlike the
Iraqian school they hardly had the tendency to ignore Hadith; and if they did so it was
for its being abrogated (mansukh) by other Hadith or its reasonable rejection by the
Sahabah. This variance in the m ethods o f the two schools, according to W ali-u Allah,
was never on prejudice or a deliberate opposition but due to certain
115. Ibid., P P .14-15.
116. Ibid., P .30.
117. Ibid., P .32
I48
circumstances and o f superficial character. When taken as a whole, they act as
complementary to each other, in formulating the comprehensive and the reliable
approach to the f iqh118.
Secondly, W ali-u A llah ’s synthetic response is found in his approach to the
differences o f the three madhahib (schools) o f fiqh—the Hanafi, the Maliki and the
Shafi’i. Like the early schools o f fiqh, these schools also do not depict the differences in
the basic principles o f the Shari’ah but are at variance in furu ’i laws. Although these
scljools, views the Shah, found their emergence under the particular political and the
local circumstances and their main concentration remained on providing Shari’ah
guidance and rulings to their societies. Their decrees, fatawa and fiqhi writings
constitute their fiqh which has been explained as well as developed considerably by
their pupils and the ulama o f their line119. In this chequered developm ent o f the schools
o f fiqh, Shah Wali-u Allah finds many such elements which act as the moderating
principles to all o f them. This is discernible in Imam M uham m ad, the pupil and the
follower o f Abu Hanifa, when he leaves aside his m aster’s opinion on its contradicting
with that o f the majority o f the ulama or the authentic H ad ith120. From this it can be
drawn out that the Hanfi schools method o f fiqh corresponds to that o f Imam Malik and
Imam-i Shafi’i in a good deal. Imam Shafi’i hardly resorts to qiyas in presence o f a
118. Ibid., P.34, Cf. Supra n.73, PP.57-67.
119. Supra n.117, P.37.
120. Ibid,. P.38.
149
haclith even it is khabr-i wahidn \ In principle Abu Hanifah, according to the Shah, does
agree with the form er’s m ethod and the ignoring o f Hadith by h im is found only w hen it
is either unreliable or has not yet come to light122. In such cases Abu Hanifah resorts to
qiyas. At the advent o f Imam Shafi’i a good num ber o f Hadith had been collected and he
considered them vital for the fiqh purposes. W hile formulating his fiqh both on the
nusus nrnl the qiyus, Imam Sha ll ' i contributes remarkably towards the synthesis o f the
principles o f istinbcit o f the Hanafi school and the traditionalism o f the M alki school. It
is relevant to mention here that shah wali-i Allah h im self inherited the adherence to
Hanafi m adhab from his father, Shah Abdul Rahim (b. 1057/1647), but his studies under
some prominent teachers at Haramain influenced him equally with their madhahib
which they fo llow ed123. In him the liking was more towards muhadithun- fuqaha and it
did not confine him within the Hanafi school but directed towards the other madhahib
particularly that o f Im am Shafi’i124. As such in his practical life Shah wali-u Allah is
seen as m aking adjustment (tal^fiq) between the fiqhi saying o f the Hanafi and the
Shafi’i schools o f f iqh125.
Thirdly, Shah Wali-u Allah conceives o f the synthesis o f the schools o f ahl al
Hadith and ahl al ra ’y. He is o f the opinion that a scholar o f the hadith should not be
122. Ibid.
123. Dr.Mazhar Baqa, Usul-i Fiqh aur Shah Wali-u Allah, P.24.124. Ibid., PP.25-29.
125. Ibid., P.29-30.
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extremist on his scholarship o f the hadith nor should be he extremist on his particular
method o f fiqh relating to the use o f the hadith and denial o f the cjiyas in his f iqh126. It is
because his m ethod isn’t authenticated by the riasus in clear terms and cannot be called
final. It does not, thinks Wali-u Allah, suit to ahl al Hadith to reject any Hadith on the
slightest doubt o f its being mursal or munqalah121'. He cites the examples o f Ibn Hazm
who objects the authencity o f the Hadith, narrated by Imam Bukhari about the
unlawfulness o f singing and m usic128. His rejection o f the Hadith is merely on this
ground that there lies doubt in its having broken chain o f the narrators. The principle
worth to follow here should be to search out i f the Hadith is contradictory to the other
H ad ith129. The other extremist position o f the ulama o f ahl al Hadith, according to
W ali-u Allah, is their restricting the narration o f Hadith within a particular person and it
boosts them to prefer the narration o f the latter to those o f o thers130. Similarly ahl al
ra ’y should not derive such meaning from the kalam or opinion o f their m aster mujtahid*
which may be contrary to its actual meaning. Nor should they create confusions by>
misunderstanding the illah and similitude (nadir) o f their m aster’s decrees
while m aking takhrij from th em 131. Wali-u A llah’s attempt is at searching out the
126. Supra n.122, .75.
127. Ibid.
128. Ibid.
129. Ibid.
130. Ibid., 75-76.131. Ibid., P.77.
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synthesis o f the m ethods o f the two schools to widen the scope o f their fiqh. He holds
that ahl al Hadith should not take it for granted that their every Hadith is authentic and
Ion such ground reject ijtihad or qiyas o f the ahl al ra ’y even i f it has reliable basis
Ahl al ra ’y are, at the same time, directed not to make a free use o f takhrij or qiyas in
their fiqh when it is liable to go contrary to the kalam or ijtihad o f their master mujtahid.
It does not suit to the ulama o f ahl al ra ’y to reject an authentic Hadith by preferring a
qiyas or ra y to i t133. The Shah guards against using the two m ethods o f the schools as
poles apart but should be harmonized and moderated to such an extent that may enrich
and widen the fiqh as a whole. He is o f the opinion that the total denial o f derivation
(takhrij) by the ahl al Hadith m ay deprive them o f its merits o f interpretation o f the
nusus and their application to the new situations. Similarly the rejection o f f Hadith by
the ahl al ra y m ay devoid them o f the reliability and stability in their fiqh.M oreover the
m ethod o f takhrij (derivation ) should be used in a moderate way rather than using it in4
the form o f takhrij dar takhrij. Shah W ali-u Allah quotes Hasan Basari (d. 110/728)>
appropriately w ho observes that the truth is that both the processes have their own place
and we ju s t cannot do without either. W e can neither ignore the Hadith nor can deny
the need o f ‘derivation’. The right course is to make up for the weakness o f the one with
the strength o f the o ther134.
132. Ibid. P.75.
133. Ibid. P.77.
134. Ibid. P.74, Cf. Amin Ahsan Islani, Juristic Differences and How to Resolve
them in an Islamic State, International Islamic Pub., New Delhi (1993) P.68.
152
To sum up, W ali-u A llah’s review o f the fiqhi disagreements am ong the
Sahabah, T ab i’un, the successors o f the T ab i’un and the popular madahib is
characteristic o f his wide and proper approach to the subject. The differences are o f
superficial and subsidiary nature, influenced by the diverse individual capacities o f the
mujtahids, local conditions o f the regions and the scholars’ aptitude towards particular
m ethods o f formulating o f shari’ah rulings. The laws o f the shari’ah were interpreted
variedly by the scholars o f Islam and so went on their application to the situations o f
life. W ali-u A llah ’s refutation o f aggrandizing the differences and taking the rigid
positions o f extremism is remarkable otherwise they sustain the factionalism and
fanaticism am ong the M uslims and harm the solidarity o f the U m m ah. In his description
o f the subject, W ali-u Allah highlights the ethics o f the differences found am ong the
various mujtahids and the schools o f the figh. It evaluates the ethics and behaviour o f
the imtjtahidin and the ahl al ra ’y with regard to their treatment to the formulations o f
the fiqh. In this way Wali-u Allah works out a synthesis o f these fiqh disagreements and
>obviates the misunderstanding and rigidity that is found am ong some o f the baised
followers (muqlidin) o f the m ujtahids or m adahib o f fiqh. This trend o f moderating the
fiqh differences has been given a considerable treatment even by some m odem scholars
o f Islam. Both the Arabian and the scholars o f the Indian sub-continent also
substantiate to this position o f m oderation and reconciliation in fiqh. A m ong them,
worth to note are Shiekh Abdur Rehm an Jazir i135, Shiekh Abdul Qadir
135. See his al-Fiqh al Madahib al Arb’an.
153
A w d a h 136 (d.1954). Taha Jabir al ‘A lw an i137 (b.1935) Sayyid Abdul A ’la M aw dud i138
(1905-1979) M. Am in Ahsan Islahi139, Mufti M uham m ad ShafiH O and Qari
M uham m ad Tayyib141. They do not involve themselves in defensive tangles tor
supporting any particular mujtahid or school o f fiqh and refuted the biased approach to
the subject. Their writings are concerned with the objective understanding o f the fiqh,
high-light its truthfulness and viability to ensure the welfare and the solidarity o f the
Ummah.
136. See his al Tashri al Janai al Islami.
137. See his Ethics of Disagreements in Islam, Herdon, USA (1992).
138. See his Tafhimat, Part I and IV, Delhi, (1988) and (1990).
139. See his Juristic Differences and How to Solve Them in an Islamic State,Delhi (1993).
140. See his Wahdat-i Ummat, Delhi.
141. See his Maslak-i Ulama’ Deoband, Deoband, UP, (1989).
154
