Islamic banking and finance today is making giant strides in terms of the development, delivery of products and services and is spreading to all parts of the world. The development of global Shari’a-Compliant assets is estimated at over US$2.431 trillion with a growth rate of 7 to 10 percent per annum (please see Chapter 2), and Pakistan is considered to be one of the fastest-growing economies in terms of Islamic banking and finance.
- research Problem
This success has not emerged without challenges. These challenges are diverse and multi-dimensional. One of the major challenges the Islamic banking and financial industry is facing today is lack of harmonized rules and regulations and the non-uniformity in Islamic banking products and services being offered in various regions of the world.
Some scholars and researchers have mentioned this problem in their works. They have pointed out that the validity or invalidity of certain products offered by the Islamic banks across the world is due to divergence of opinion among Muslim jurists on the basis of the schools of fiqh (±anafÏ, M¥likÏ, Sh¥fi¢Ï and ±anbalÏ) they follow. Regional differences in interpretation and derivation of rulings in accordance with the popular school of law of that region, stand as the main reason for not having a standardized, harmonized, uniform and universal Islamic banking system across the world.
The resultant multiple interpretations by various schools of law and different jurists belonging to different madh¥hib al-fiqh regarding Islamic financial products, result in minor and major disparities. In view of this fact, it is logical that, without a universally unified and uniform Shari’a Code, the acceptability of products introduced in Islamic financial industry will remain fragmented.
Prompt attention and action by Muslim scholars and Islamic finance experts is essential. A failure would damage the growth of the Islamic banking and finance industry in the years ahead.
If global harmony and universal standardization of Islamic banking products and services cannot be achieved within the Muslim world, how can the Islamic economic and banking system be proposed as a viable alternative to the conventional economic and banking system to the world at large?
Considering the necessity and importance of the issue of standardization of products, we have made this particular point the subject of our research.
- hIstorIcal context of the Problem
Countries differ in their approach to Shari’a governance. For instance, Bahrain has both a Shari’a governance committee at the institutional level and the National Shari’a Advisory Board at the national level, i.e., in the Central Bank of Bahrain. However, its role is limited to advise the central bank on Shari’a matters. Malaysia and Indonesia have a higher Shari’a authority at the national level to standardize fatwa and Shari’a practices in IFIs [financial institutions]. In the case of other GCC countries such as Kuwait, UAE, and Qatar, they have their own Shari’a committees at the institutional level and another independent body, i.e., the Ministry of Awqaf and Religious Affairs or the Ministry of Justice and Islamic Affairs, which are given the authority to oversee Shari’a governance practices. The higher Shari’a authority in UAE, Qatar, and Kuwait only act when there are conflicts of opinion among Shari’a scholars regarding Shari’a rulings. In the case of Saudi Arabia, it prefers leaving the Shari’a governance practices at the voluntary choice of IFIs and at the influence of the market. They further state that the higher Shari’a authority is not effective in controlling the Shari’a compliance for IFIs resulting in negative impacts on the stability of the Islamic finance industry.
The different interpretations of Shari’a rules amongst Shari’a scholars create confusion in the general public as well as in banking communities. This difference of opinion applies not only to some of the products, but also to some of the operations of the Islamic banks.
For example, there is no uniformity in opinion pertaining to the principle of the trust financing contract (al-mu\¥raba) in business transactions. The M¥likÏ and Sh¥fi¢Ï schools of jurisprudence are of the view that al-mu\¥raba should be confined to trade and trade-related activities alone, and should not include the activities of manufacturing. According to them, the contract for manufacturing should be excluded from al-mu\¥raba, which is a profit-loss sharing contract but formed under a specific long-term contract whereby a party undertakes
- Rafay, Abdul, Ramla Sadiq and Mobeen Ajmal. “Fragmentation of Islamic Financial Products—An Exploratory Study of Islamic Schools of Thought.” Abasyn Journal of Social Sciences—Special Issue: Towards Financial Inclusion: 48.
- Kasim, Nawal, Sheila Nu Nu Htay and Syed Ahmed Salman. “Empowering the Shari‘ah Committee towards Strengthening Shari‘ah Governance Practices in Islamic Financial Institutions.” Review of European Studies 8 (March 2016): 144.
to manufacture, i.e., al-isti|n¥√. However, the ±anafÏ school of law does not object to the application of al-mu\¥raba for manufacturing activities, while the ±anbalÏ school of law allows two separate agreements using al-mu\¥raba and al-isti|n¥¢ principles as long as the two agreements do not impose conditions upon each other.3
Such non-uniformity of opinion amongst the Islamic scholars from different schools of law generates confusion amongst the bankers, the customers as well as the public. Customers will not really understand what are the ‘dos and don’ts’ of the Islamic banking industry, and will make their own personal interpretations. This situation is unhealthy for banker-customer relations, as both parties may have different interpretations.
- suggested solutIon
The reason behind this issue lies in strict conformity with one school of law (taqlÏd al-madh’hab) in a particular region, and with some other school of law in another region. A third school of law may be strictly followed by people of a third locality, while a fourth may be adhered to in yet another community. This principle of taqlÏd al-madh’hab—strict conformity with one school of law—seems to be the sole reason behind the whole confusion in the matter of standardization. The solution to this problem lies in adopting a “neo-juristic approach of inclusive accommodation and flexibility”. This approach is based on the Qur√¥nic principle of facilitation and juristic principle of expansion. This approach should be known as: conformity with all schools of law (taqlÏd al-madh¥hib).
- Qur√®nIc InjunctIons on the PrIncIPle of facIlItatIon (al-tas±¬l) and flexIbIlIty (al-tawassu¢)
DÏn was revealed to the Prophet a in order to facilitate human kind and remove burdens, difficulties and hardships, from their lives.
- The Qur√¥n states:
Allah desires ease for you and does not desire hardship for you.
- The entire religion of Islam is structured upon the provision of ease and the removal of difficulty. Allah u says:
He has chosen you, and has not laid upon you any hardship or constriction in the matter of DÏn.6
- He also said,
Allah does not want to make things hard for you.
Since Allah u knows the weakness of human beings, He has lightened for them the legal
responsibilities and lessened from them the obligations that they would not be able to fulfil.
Allah intends to lighten your burden. And man has been created weak (and infirm).8 He also said,
Allah has, at present, lightened the burden (of His commandment) on you. He knows that there is (some degree of) weakness in you.9
- evIdence from the hadIth
J¥bir g reported that Holy Prophet a said,
“Indeed, Allah did not send me to be harsh or cause harm; He sent me to teach and make things easy.”10
¢®√isha j said:
“Never was Allah’s Messenger a presented with two options except that he would choose the easier of the two, so long as it was not a sin.”11
- According to Anas b. M¥lik g, the Prophet a said,
“Make things easy and do not make things difficult. Give glad tidings and do not make people feel averse.”
- Ab‰ Hurayra g reports that Allah’s Messenger a said,
“You were sent to make things easy and not to make things difficult.”
- Imam A^mad b. ±anbal narrated in al-Musnad that the Holy Prophet a said:
“Verily, the best of your DÏn is the easier part. Verily, the best of your DÏn is the easier part. Verily, the best of your DÏn is the easier part.”14
That’s why ¢All¥ma Ibn Qud¥ma—a great jurist of al-Fiqh al-±anbalÏ—writes in his book “Raw\a al-N¥ir fÏ ƒ|‰l al-Fiqh”: “If a jurist is approached for an edict and his edict remains devoid of openness and flexibility because of his rigidity the edict-seeker should be guided towards some other jurist who is open-minded and flexible.”
Furthermore, ¢All¥ma Ibn Qud¥ma reports that al-±usayn b. Bashsh¥r inquired from Imam A^mad b. ±anbal about an issue. He said, “If he does it, he will become a perjurer.” al-±usayn b. Bashsh¥r said: “If someone issues me the edict that he will not be a perjurer then (what will be the case)? Imam A^mad replied, “Do you know of the Medinans’ session (at Ra|¥fa)?” He asked, “If they issue the edict, would that be permissible?” Imam A^mad replied in affirmative.16
Here, Imam Ahmad himself is guiding the inquirer to go to Ra|¥fa and get the answer from the Medinan scholars because their opinion was based on openness, inclusion, flexibility and facilitation. These juristic principles are always closer to the basic spirit of Islamic teachings.
- lIterature revIew: methodology of jurIstIc exPansIon and InclusIon
Someone may question where the idea of taqlÏd al-madh¥hib—benefitting from all schools of law instead of one particular school—has sprung from?
- Addressing this question, I would quote Imam ±asan b. ¢Amm¥r al-Shurunbul¥lÏ al-±anafÏ, the author of N‰r al-¬\¥^ and Mar¥qÏ al-Fal¥^. He has promulgated this concept of taqlÏd al-madh¥hib in his treatise—al-¢Iqd al-FarÏd li-Bayan al-R¥ji^ mina√l-Khil¥f fÏ Jaw¥z al-TaqlÏd—which is yet in manuscript form. He has quoted Imam Ab‰ al-Ma^¥sin al-R‰y¥nÏ al-Sh¥fi¢Ï (415–502 ah), one of the great ancient jurists, who says:
“Conforming to different schools of law or departing from one and shifting towards others is permissible on three conditions.
“Firstly, a person should not accumulate or assimilate them in a way that contravenes the consensus of Umma (ijm¥¢).
“Secondly, He should believe that Prophetic traditions on the subject in question have reached the one he wants to conform with, which were possibly not available to the madh’hab he is conforming with currently.
“Thirdly, he should not follow the objective of the licenses and freedoms provided by different schools of law in order to avoid the commandments of Shari’a (i.e. adopting and following only all lenient instructions and exemptions offered by every school and abandoning the strict ones).”
- ¢All¥ma al-ShinqÏ~Ï al-M¥likÏ (1152–1233 ah) supports the same viewpoint in his book Nashr al-Bun‰d ¢al¥ Mar¥qÏ al-Sa¢‰d.
- A similar viewpoint has been promoted by Imam Ab‰ al-¢Abb¥s A^mad b. IdrÏs al-Qar¥fÏ al-M¥likÏ (d. 684 ah) in his book Shar^ TanqÏ^ al-Fu|‰l il¥ Ikhti|¥r al-Ma^|‰l fi√l-U|‰l. He states quoting Imam Ya^y¥ al-Zan¥tÏ:
“Conformity with schools of law and shifting from one school to the other in periph- eral matters is permissible under three conditions:
“First, one should not accumulate or assimilate two schools in a way that contravenes the consensus of the Umma (ijm¥¢).
“Second, he should believe that hadiths on the subject in question have reached the one he wants to conform with.
“Third, he must not be looking for the licenses provided by different schools of law. Indeed, all the schools of law are paths that lead to piety and Paradise. The one who treads anyone of these paths, will certainly reach the ultimate goal.
“Admonition: (Apart from al-Zan¥tÏ) other Jurists have said, “Conformity with and turning towards schools of law is permissible in every matter wherein the Lawgiver’s decree is not infringed. Remember that the Lawgiver’s decree is breached in four ways: violation of the consensus of the Umma (ijm¥¢), basic principles of Shari’a, Divine text or manifest analogy.”
- Imam al-Qar¥fÏ al-M¥likÏ further describes a rule with these words:
“There is consensus on it that a person who embraces Islam has the choice to adopt conformity with any of the Imams without any restriction. Similarly, there was a common consensus between the Companions l about a person who sought an edict from Ab‰ Bakr al-ßiddÏq and ¢Umar b. al-Kha~~¥b k, or conformed to them, had the right to seek an edict from Ab‰ Hurayra, Mu¢¥dh b. Jabal k and others and could also abide by their verdict without any constraint.”
- Imam al-Qar¥fÏ al-M¥likÏ further quotes Imam ¢Izz al-DÏn b. ¢Abd al-Sal¥m al-Sh¥fi¢Ï (577–660 ah) with the following words:
“We believe in permissibility of conformity as well as in shifting from one school of law to the other. However, we maintain it only in issues where the ruling of the judge is not breached.”
- He elaborates the idea by saying:
“This is the adopted view of ¢Izz al-DÏn b. ¢Abd al-Sal¥m, Sayf al-DÏn al-®midÏ and a group of other scholars as already described, it is governed by the condition that one should not assimilate all schools of law in a way that goes against the consensus of the Umma.”
- al-Qar¥fÏ commenting on the issue, further says:
“The Prophet a has said: ‘I have been raised with the DÏn that provides facilitation.’22 This Prophetic statement demands its permissibility at large because this is a type of ease and lenience. The Islamic law does not want to put people in trouble, rather it declares mandatory the acquisition of special and better expediencies, if they are burdened heavily.”
- Imam Sayf al-DÏn Ab‰ al-±asan al-®midÏ al-Sh¥fi¢Ï (551–631 ah) writes in al-I^k¥m fÏ U|‰l al-A^k¥m:
“When a conformist, following his Imam, acts upon his verdict about a matter per- taining to ritual prayer (al-|al¥ al-makt‰ba), the Imams agree that, in regard to this matter, he does not have the right to turn towards some other Imam. However, in matters other than acts of worship, the Imams disagree about turning towards other Imams and following them. It has been prohibited as well as permitted by different jurists. The consensus amongst the Companions l makes it evident that a conformist has the right to seek a verdict from any scholar regarding any disputation. Nothing has been reported about any Imam from the pious predecessors, prohibiting common people from it. Had it been prohibited, it would not have been permissible for the Companions l to be negligent of this prohibition or observe silence on this forbiddance.”
“In view of that, if a person determines to fix for himself a school of law for adherence, like Sh¥fi¢Ï or ±anafÏ or any other school, and declares to stick to it, a large group of Imams have accorded permissibility to following another Imam or school of law in a given matter.”
- Imam Kam¥l al-DÏn b. al-Hum¥m al-±anafÏ (790–861 ah) writes in al-Ta^rÏr fÏ U|‰l al-Fiqh, al-J¥mi¢ bayn I|~il¥^ay al-±anafiyya wa√l-Sh¥fi¢iyya, which is his mas- terpiece on the amalgamation and combination of terminologies of the ±anafÏ and Sh¥fi¢Ï schools of law:
“[The conformist should not turn towards any other imam about an issue for which he abides by a specific school.] This idea raises the question whether or not the conformist should pursue, for a disputation, an imam other than the one whom he adheres to in other matters. According to the adopted school (al-madh’hab al-mukht¥r), he can certainly do it because people have been seeking edicts the first time from one scholar and the second time from another, without conforming to only one jurist for all the matters. It is said that if one adopts a specific school of law such as ±anafÏ or Sh¥fi¢Ï, then one must hold it fast. However, at the same time, it has also been said that he should not adhere to one school alone for all the issues in consideration. It is also viewed that such a person would be perceived as if he was not originally bound to any school. So, he adheres to one jurist in one matter and to the other in another. He further states: This also establishes the conformist’s justi- fication of following the permissions provided by different schools of law. There is no legal prohibition to stop him from this option, because one has the lawful right to adopt the easier option, while the mode to utilize it is also available. This is so because he has not adopted the verdict of other Imam in this regard. The Prophet a too would like ease and comfort for his followers.”
- Ibn AmÏr al-±¥jj al-±alabÏ al-±anafÏ (d. 879 ah) wrote the explanation of the above-mentioned book of Ibn al-Hum¥m. He says:
“[The Prophet a would like ease and comfort for his followers.] As has been described in the preceding section about preference, Imam al-Bukh¥rÏ has narrated a hadith reported by ¢®√isha j with the word ¢an-hum (for them), while another narration has reported m¥ yukhaffif-u ¢an-hum. The Prophet a would like anything that causes ease and relaxation for his Umma. Therefore, we have mentioned several hadith reports that prove the principles (of ease and relaxation).”
He further elaborates the concept, saying:
“It connotes that, apart from the Imam one has conformed with in one issue, he can also conform with another Imam (in another disputation), like the conformist who would abide by Imam Ab‰ ±anÏfa in a problem and followed some other Imam in some other issue. (This is the adopted view) as has been described by al-®midÏ and Ibn al-±¥jib. (Yes, most certainly) he can do it on the basis of ample and accom- plished proofs (al-istiqr¥√ al-t¥m). (Indeed) in the Companions’ times, the edict seek- ers of every era and their Successors (used to get a verdict now from this and then from that mujtahid, without tenaciously adhering to any mufti). This has been a general and repeated practice, and, this has not been denied. … Moreover, it is stated by Imam al-R¥fi¢Ï and others that determining according to a particular school of law in every matter is not mandatory. Nothing is imperative for a man other than what Allah and His Messenger a have declared obligatory. Allah and His Messenger a have not made it imperative for a person to adopt the way of anyone of the Umma and only conform with what he says and give up everything else.”
- ¢All¥ma ¢Abd al-±ayy al-FaqÏh al-±anafÏ al-LaknawÏ has also supported the same idea answering a particular question in his Majm‰a¢ al-Fat¥w¥:
“The ±anafÏ school does not imply hiding the truth so that the searcher of that truth should exit from the ±anafÏ school of law. Many of the eminent ±anafÏ authorities have endorsed this permission in their books. One of the eminent scholars MuftÏ al-±anafiyya of Mecca (d. 1061 AH) Muhammad b. ¢Abd al-¢AÏm al-MakkÏ has written in his booklet al-Qawl al-SadÏd fi Ba¢\ Mas¥√il al-Ijtih¥d wa√l-TaqlÏd:
‘It is not binding on us that we should not accept the opinion or the evidence from what appears right against our own opinion, because Almighty Allah has plentifully blessed us with the wealth of contemplation through which it is possible to find what is right or appropriate in a given situation. Despite this openness, thank God, we do not exit from the conformity with Imam Ab‰ ±anÏfa’27.”
- the PrIncIPle of dIstInctIon and oPtIon of choIce between
dIfferent jurIstIc verdIcts
The intent of the wholesome of Shari’a is to create ease and facilitation for humankind. Keeping in view this principle, the jurists have promoted ease, expansion and facilitation for humans in making inferences from the sources. While describing various disputations, they have reported different verdicts and opinions that contain greater flexibility and facilitation. Mentioning these verdicts, the Imams have frequently referred to statements, using descriptions like:
H¥dh¥ a|a^^ (This is the most correct.) H¥dh¥ awsa¢ (This is the vastest.) H¥dh¥ a^wa~ (This is the safest.) H¥dh¥ aqyas (This is the best analogy.) H¥dh¥ awl¥ (That is better.)
H¥dh¥ aw\a^ (This is more evident.)
H¥dh¥ awfaq li√l-qiy¥s (This is more compatible to analogy.)
H¥dh¥ arfaq li√n-n¥s (This is more lenient and easier for the people.)
The jurists who have used such epithets do not represent any specific period, nor do they belong to any single school of law; rather they belong to all the eras and all the schools of law. They include Imam Ab‰ ±anÏfa, Imam M¥lik, Imam al-Sh¥fi¢Ï, Imam A^mad b. ±anbal, Imam Muhammad, Imam Ab‰ Y‰suf, al-SamarqandÏ, al-SarakhsÏ, al-K¥s¥nÏ, al-Zayla¢Ï, al-SubkÏ, al-NawawÏ, al-ShurbÏnÏ, al-RamlÏ, Ibn ±azm, Ibn Mufli^, Ibn Qud¥ma, Ibn Tay- miyya, Ibn Nujaym, al-±a|kafÏ and Ibn ¢®bidÏn al-Sh¥mÏ, etc. Here are some examples of their inclusive accommodation and flexible approach:
- al-±anaf¬ authorItIes
- Ibn Nujaym states in al-Bahr al-R¥√iq:
“He [Q¥sim b. Qu~l‰bugh¥] says at the end: It is proven that the position (qawl) of Imam Ab‰ ±anÏfa is the most correct view (a|a^^). And by this it is apparent that no legal ruling (fatwa) is to be passed or acted upon unless it is the verdict (qawl) of al-Im¥m al-A¢am [Ab‰ ±anÏfa]. His position will not be abandoned for the position of [Imam Ab‰ Y‰suf and Imam Muhammad], or either of them, or anyone else besides them, except in the case of necessity due to weakness of evidence or in the case where popular practice and conventions are against his verdict, such as sharecropping (al-muz¥ra¢a) [for example].
“If the scholars declare that the legal ruling (fatwa) is on the verdict of [Imam Ab‰ Y‰suf and Imam Muhammad], as in this example and quoted in al-Sir¥j al-Wahh¥j, then their position is [to be viewed as] the more accommodating (awsa¢) position, whereas the Imam’s position is the more precautionary (a^wa~).”
- Ibn Nujaym says at another occasion:
“Something more accommodating (awsa¢) than that has been stated by our teachers/ colleagues, and that is: if an upright jurist (faqÏh) is asked for a legal ruling (fatwa) and he passes judgment on the nullification of an oath (al-yamÏn), it is permitted for him to act upon his legal ruling (fatwa) or to withhold it. Even something more accommodating (awsa¢) than this has also been reported, and that is: if a legal expert (muftÏ) passes a legal ruling (fatwa) for permissibility and then another [legal expert (muftÏ)] passes a legal ruling (fatwa) for impermissibility after the first legal ruling (fatwa) has been passed, then the second legal ruling (fatwa) can be implemented with regards to another woman, but not the first. Both legal rulings can be implemented in two (separate) incidents.”
- In a matter of theft, al-±askafÏ quotes two verdicts, the ±anafÏte and the Sh¥fi¢Ïte. Regarding the first he says: It is the most correct view (a|a^^). And about the second verdict he says: It is the more accommodating (awsa¢) position, thus it would be adopted for practice in times of necessity.
- al-±askafÏ discussing the time of the Maghrib ritual prayer, quotes two positions on determining the meanings of twilight. He says:
In al-Mabs‰~, it is related that Imam Ab‰ ±anÏfa’s position is the safest (a^wa~), whereas their (Imam Ab‰ Y‰suf, Imam Muhammad and Imam al-Sh¥fi¢Ï) position is the more accommodating (awsa¢), i.e. more lenient for people.32
- Imam al-SarakhsÏ relates two positions regarding the size of the water basin in order to explain the apparent standpoint of the madh’hab in interpreting what constitutes ritual ablution; first the position of Imam Ab‰ ±anÏfa and the second of Imam Ab‰ Y‰suf. Finally he says, the report of Imam Ab‰ ±anÏfa, however, is more accommodating (awsa¢).
- Imam al-SarakhsÏ writes in al-Mabs‰~:
“If two people entrusted a person with gold coins (dÏn¥r), silver coins (dirham), clothes, riding beasts and servants, and then one of them went back to reclaim his possessions from him, according to Imam Ab‰ ±anÏfa it would not be permitted for him to do so unless both are present. Whereas according to Imam Ab‰ Y‰suf and Imam Muhammad, he will be ordered to divide the property and pay him his rightful share.
“Imam Muhammad states in al-Am¥lÏ: The verdict of Imam Ab‰ ±anÏfa is closer to juristic reasoning (aqyas), while the verdict of Imam Ab‰ Y‰suf is more accommodating (awsa¢).”
- It is stated in Bad¥√i¢ al-ßan¥√i¢:
“As for the case of a well—where it [first] becomes impure, then its water sinks into the earth with its bottom part becoming dry, and then it is replenished with water again—in the opinion of Nu|ayr b. Ya^y¥, it is pure, whereas according to Muham- mad b. Salama it is impure. The same is said to be the opinion of Imam Ab‰ Y‰suf.”
Imam al-K¥s¥nÏ commenting on both opinions, says:
“The second position is more precautionary (a^wa~), whereas the former is the more accommodating (awsa¢).”
- At another occasion, Imam al-K¥s¥nÏ reports:
Nu|ayr b. Ya^y¥ and Ab‰ Bakr al-Isk¥f said: ‘There is no good in it.’ Ibn al-Mub¥rak was asked about it and he said, ‘There is no harm in it.’ It is also the verdict of
Shaykh Ab‰ ±af| al-KabÏr, and this is the more accommodating (awsa¢) position, but the first is the more precautionary (a^wa~).”
- At another place, al-K¥s¥nÏ, after quoting two different opinions, says:
“What is stated by Imam Muhammad is closer to juristic reasoning (aqyas), but the position of Imam Ab‰ Y‰suf is more accommodating (awsa¢).”
- Imam al-K¥s¥nÏ states in the section of ritual seclusion (al-i¢tik¥f):
“If he leaves the mosque without an excuse, then his ritual seclusion (al-i¢tik¥f) in the mosque is nullified according to Imam Ab‰ ±anÏfa, even if it is momentarily. Whereas according to Imam Ab‰ Y‰suf and Imam Muhammad, it is not nullified unless he leaves for more than half a day.
“Imam Muhammad said, ‘The verdict of Imam Ab‰ ±anÏfa is closer to juristic reasoning (aqyas), while the verdict of Imam Ab‰ Y‰suf is more accommodating (awsa¢).’”
- The same approach has been endorsed by al-Zayla¢Ï in these words:
“His position is closer to juristic reasoning (aqyas), whereas their position is based on juristic preference (al-isti^s¥n), and it is the more accommodating (awsa¢) position.
- Ab‰ al-Layth al-SamarqandÏ also reports the same comments in Tu^fa al-Fuqah¥√.
- Ibn ¢®bidÏn al-Sh¥mÏ, discussing a situation related to the question of purity, says:
“The former opinion is closer to juristic reasoning (aqyas), whereas the latter is more accommodating (awsa¢). And this is the position adopted in al-Durar as the legal ruling (fatwa).”
- Ibn ¢®bidÏn al-Sh¥mÏ discussing about the purification of honey and oil, mentions two positions and states:
“This is according to Imam Ab‰ Y‰suf, whose position is in contrast to Imam Muhammad. His position is the more accommodating (awsa¢), and it is upon this position the legal ruling (fatwa) is based. This is what has been stated in the commentary of Shaykh Ism¥¢Ïl from J¥mi¢ al-Fat¥w¥.”
- Ibn ¢®bidÏn al-Sh¥mÏ says:
“It is stated in al-±ilya: ‘Yes, there is a difference of opinion between the scholars concerning the beginning of dawn, the scattering of light or its spread over the horizon as mentioned in Shar^ al-Z¥hidÏ from al-Mu^Ï~.’
“It is mentioned in Khiz¥na al-Fat¥w¥ from Shar^ al-SarakhsÏ ¢al¥ al-K¥fÏ that the first position is more precautionary (a^wa~), while the second is more accommodating (awsa¢). He says in al-Ba^r: ‘The apparent position (of the madh’hab) is the last opinion.’”42
- The ±anafÏ jurists have decreed on several issues pertaining to the protection of people’s rights on the basis of the rules of other schools. For example, a person owes money to someone but does not pay him. Then it so happens that some belonging of the debtor, somehow, gets into the hands of the creditor. In the ±anafÏ original view, it is not permissible for the creditor to sell it for the compensation of his right. How- ever, the later ±anafÏ jurists declared it permissible, following the Sh¥fi¢Ï verdict.
¢All¥ma Ibn ¢®bidÏn al-Sh¥mÏ reports from al-±amawÏ:
“Non-permissibility of recovering one’s right from the opposite gender in the olden times of jurists was owing to the common practice of observance of the rights of the people. However, in modern times, by having power and possession of other’s prop- erty or wealth, an edict exists on the permissibility of recovering from that, especially in case of our countries, because people are persistently practising disobedience.”
- The original text of al-Durr al-Mukht¥r reads as under:
“It is not lawful for a (legally) rightful person to recover his right from other than the gender of his own right. However Imam al-Sh¥fi¢Ï, has declared it permissible, and this is the more capacious view. (This provides facility to the people, so this should be adopted.)”44
- In the case of a sale before time or its advance payment, the ±anafÏs make it a pre-requisite that the material sold must remain in the market until the stipulated time expires. However, Sh¥fi¢Ïs find it sufficient if it is print on the time of actual sale. As found in al-Hid¥ya, there is no harm if this verdict is followed in the time of need; this is allowed.
- The ±anafÏ school does not hold silent or sleeping partnerships lawful, but Imam M¥lik regards it permissible. Some modern ±anafÏ jurists have held that the partners setting up a company shall not have only an investing partnership (al-shirka bi√l-nafaqa), rather their partnership can also be operational and material in business (al-shirka bi√l-¢ur‰\).47 It is stated:
“According to a report narrated by Imam A^mad b. ±anbal, partnership in operation and investment in material (for sale) is permissible. As described in al-MughnÏ, this is the verdict of Imam M¥lik and Ibn AbÏ Layl¥ as well.”
It is stated in al-Mudawwana al-Kubr¥, Ibn al-Q¥sim said that this is what reached him from Imam M¥lik as he adopted the accommodating (awsa¢) position in respect to performing the tayammum over something frozen.
- al-sh®fI¢¬ vIew
- Imam al-Sh¥fi¢Ï says, explaining a verse of the Holy Qur√¥n:
“Some of my companions said to me: it applies only to the distribution of inheritance. And others said: it includes the distribution of inheritance and other similar matters, such as the spoil of war. This is the more accommodating (awsa¢) position and it is dearer to me.”
- The same approach is found in the words of Sulaym¥n al-Jamal al-Sh¥fi¢Ï. But the statement of al-ZarkashÏ is more accommodating (awsa¢) than it.
- Shams al-DÏn al-RamlÏ also uses the same legal expression in the words: “‘The first is the more accommodating (awsa¢) [and hence permissible].’”
- al-M¥wardÏ elucidates the rationale of this approach in these words:
“This command relates to the common good and this principle can also be extended to other transactions and agreements.”
- al-±anbal¬ vIew
- Ibn ±azm states expressing the same principle:
“RabÏ¢a said: ‘I do not think there is anything more accommodating (awsa¢) on the issue of the animal’s foetus than the ijtih¥d adopted by the Imam.”
- Ibn Mufli^ al-±anbalÏ also expresses the same juristic rule in the words:
“This comes under public interest (al-ma|¥li^ al-mursala). But al-Q¥\Ï has adopted a position more accommodating (awsa¢) than this in al-A^k¥m al-Sul~¥niyya.”
- Imam Ibn Mufli^ further says at another occasion:
“However, the absolute nature of cash is more accommodating (awsa¢), and for this reason it is validated in kinds of transactions.”
- Imam Ibn Qud¥ma states:
“This is because letting out (al-ij¥ra) for the same purpose is permissible but borrow- ing (al-i¢¥ra) is the more accommodating situation (awsa¢).57
- ¢All¥ma Ibn Taymiyya states:
“The position of Imam A^mad (on this issue) is more accommodating (awsa¢) than others.”58
- jurIstIc strategy for resolvIng Contemporary Issues through the
PrIncIPle of InclusIon and exPansIon
In this regard, a reasoned strategy needs to be developed, which will enable us to benefit from the juristic reservoir of all the four Schools in order to sort out the complexities of life without any deferment and hindrance.
- Pursuing this principle, Imam WalÏ All¥h al-Muhaddith al-DihlawÏ states:
- In most of the juristic reasoning characterized by differences of opinion, the truth spreads through all of these opinions.
- There is no narrowness in DÏn; rather it offers ease, expansion and accommodation.
- Sticking only to one way and believing firmly that the opponent’s viewpoint is definitely wrong, is baseless.59
- Imam ¢Izz al-DÏn b. ¢Abd al-Sal¥m, expressing the same strategy, states:
“Successful is the person who acted upon things the scholars agreed upon and refrained from things that the scholars declared unlawful without any disagreement, and believed in the permissibility of matters, which the scholars and jurists decreed unanimously, also performed the acts, which the scholars unanimously regarded commendable; and abstained from the acts that the scholars unanimously agreed to disapprove.
“However, the things where the scholars disagreed and could not concur on one opinion can be divided into two forms.
- The matter wherein they have had difference of opinion on the disputations about which the command of the Lawgiver can be repealed. In this case, no chance of following that opinion remains permissible, because such a ruling will be considered a mistake in totality. It will be rejected because the mistake lies in its original legality, and this mistake has detached the ruling from the basic will of the Lawgiver and spirit of the textual law.
- The second form is related to the matter where difference of opinion does not pertain to the issues about which the command of the Lawgiver can be repealed. There is no harm in obeying or disobeying such a ruling, with the condition that one should follow some authentic juristic opinion and not an unauthentic one. The practice in the early centuries of Muslim Umma, when the traditional schools of law were not formulated and enforced, was not to follow any specific jurisprudence; but people used to follow any legal opinion of a competent scholar, which at least enjoyed the consensus of some jurists.”
- Imam ¢Izz al-DÏn b. ¢Abd al-Sal¥m further asserted on a question:
“If the school that he is abandoning and the one that he is adopting are without much distance closer to one another in their sources and origins, then it is permissible to leave one and join the other. It is because from the period of the Companions until the formation of four juristic schools, the Muslims have been following all the schools of jurisprudence instead of one of them. Whoever, one would consider a better scholar, superior in God-consciousness, he would approach him for an edict and follow him. Nobody used to dislike this way, nor was considered disliking by anyone worth any notice. Had it been the wrong way, the scholars would have rejected it and stopped others to follow it.”
- categorIes of jurIstIc oPInIons
Imam WalÏ All¥h al-DihlawÏ further writes that the difference of opinion is of four kinds:
- DETERMINED OPINION: The difference of opinion is not justified in matters wherein the truth is absolutely and certainly determined. Its compliance is mandatory and differing from this position is definitely void.
- PREFERRED OPINION: The problem where the truth is determined by majority vote of the schools and the jurists and it weighs in predominant scale. Differing from this position is probably voidable.
- UNPREFERRED OPINION: This is a problem where both aspects are under equal authority and none of the aspects is preferred to the other. In this matter, an open choice between the two opinions is granted definitely.
- COMPATIBLE OPINION: This is an issue where similar choice is given on both sides with a dominant opinion. Therefore, in this case also, a jurist is free to adopt either of the two authorities or opinions, based on the compatibility of the evidence and the given circumstances.
Therefore, the scholars and jurists, leaving the first kind aside, can use their juristic discretion in adopting any viewpoint in the last three situations, following the above-mentioned principles of jurisprudence.
“It is an established fact that the difference amongst the jurists and mujtahid‰n arose due to four reasons:
- A mujtahid found a hadith about an incident, while the other missed it. In this case, the one who found the truth is called mujtahid mu¢ayyan.
- Every mujtahid has hadiths of the Prophet a and the reports of the Companions. Every one of them exercised ijtih¥d (deductive reasoning) in preferring or finding compatibility among hadiths and Companions’ reports regarding any given legal situation. Their ijtih¥d (deductive reasoning) took it to the status of a determined command, due to which the difference of opinion transpired to the scope of adopting any of the opinions.
- The mujtahids differed in the following matters:
- The connotations and interpretation of words and idioms in use and determining their meanings and implications.
- Pinpointing and determining the confines of usages.
- The true recognition of conditions and constituent elements of a legal act or its effects. Thus ijtih¥d (deductive reasoning) of every mujtahid took him to a separate and permanent opinion in framing the legal position of that act.
- A different approach in formulating the juristic principles. Since the framed juristic principles or conditions were different from one another, resultantly, difference of legal opinion occurred also in peripheral issues.
That is why the Prophet a said: “Difference of opinion amongst my Umma is a blessing.”
This difference of opinion has been declared to be a blessing of Almighty Allah, because none of them is negating the command of God. All of them are trying to determine the meanings and specify the implications of a particular verse, hadith or word in question in different ways. Therefore, these juristic differences have expanded the scope of legal options for the Umma.
“Therefore, all of the mujtahids are on straight path in all the above-mentioned forms when their sources are akin to and compatible with the indicated methodology. That is why, one can easily accept anyone of them without any confusion.”
It can be asserted in the light of legal arguments that, apart from the Prophets, it is not legally prohibited to differ with any person of any exalted position in any issue under any circumstances. This station is only exclusive for Allah and His exalted Messenger a. The four Imams too have expanded upon this matter. The Qur√¥n states:
Y¥ ayyuha√l-ladhÏn-a ¥man‰ a~Ï¢ul-L¥h-a wa a~Ï¢ur-Ras‰la wa uli√l-amr-i min-kum [O believers! Obey Allah and obey the Messenger (a) and those who hold the authority amongst you.]65
The Qur√¥n and Sunna come under the article of:
A~Ï¢ul-L¥h-a wa a~Ï¢ur-Ras‰la [Obey Allah and obey the Messenger (a).]
The schools of law and their Imams fall under the article of:
Uli√l-amr-i min-kum [Those who hold the authority amongst you.]
As mentioned in this verse, the commandment of “a~Ï¢‰” [obey] has been repeated for Ras‰l in the same way as for Allah, to declare the absolute and unconditional authority vested with the commandment of the Holy Prophet a. However, in the case of “uli√l-amr”, the command of obeying “a~Ï¢‰” has not been verbally repeated. This style of linguistic composition signifies that the obedience rendered to “uli√l- amr” is qualified, conditional and challengeable. That is why, Almighty Allah has further commanded:
Fa-in tan¥za¢tum fÏ shay√in fa-rudd‰hu ilal-L¥h-i wa√r-Ras‰l-i in kuntum tu√min‰n-a bilL¥h-i wa√l-yawm-il ¥khir [Then if you disagree amongst yourselves over any issue, refer it to Allah and the Messenger (a for final judgment), if you believe in Allah and the Last Day.]68
This Qur√¥nic article promulgates three basic principles:
- The principle of the supreme and absolute juristic authority of the Qur√¥n and Sunna.
- The principle of subordinate and conditional authority of the Juristic opinions.
- The principle of permissibility of differing from one opinion and adopting the other, due to the reason of stronger supporting evidence of the Qur√¥n and Sunna.
- Qur√¥n 4:59.
- Imam WalÏ All¥h al-DihlawÏ states:
“The overwhelming majority of scholars belonging to the four schools have followed the middle course between two extremes of excess and paucity we have mentioned. All the four Imams instructed their followers of the same path of moderation. Shaykh
¢Abd al-Wahh¥b al-Sha¢r¥nÏ has reported from Imam Ab‰ ±anÏfa in al-Yaw¥qÏt wa al-Jaw¥hir, saying, ‘It is unjust for a person who is not acquainted with the proof contained in my words to issue an edict just on the basis of my words.’ When he decreed his edict he would point towards himself and say, ‘As far as I know, this is the opinion of al-Nu¢m¥n b. Th¥bit [Ab‰ ±anÏfa], and, this is more acceptable to me. If there is a better opinion, that is more authentic and would be closer to the truth.’ Similarly, Imam M¥lik used to say, ‘Except for the Messenger of Allah a, everyone can be seized for his words and his words can be rejected.’ al-±¥kim and al-BayhaqÏ have reported from Imam al-Sh¥fi¢Ï, saying, ‘When the authenticity of hadith is proved, that is my school.’”
- al-ZarkashÏ states:
“The Companions had a common agreement on this point that there was a difference in their level of knowledge and understanding but, despite that, there was consensus among them on the permissibility of following a path of a person of lower rank in the presence of a person enjoying a higher rank in knowledge and wisdom.”
This principle reveals that, under peculiar circumstances, it is permissible to prefer another Imam’s verdict due to legal expediency, evidential strength or circumstantial necessity. The majority of jurists maintain the same standpoint. However, the juristic conditions and limits have to be observed compulsorily.
- Ibn Taymiyya states:
“Sometimes, Allah Most High bestows upon a scholar the wisdom and insight which the other lacks.”
- Ibn ¢®bidÏn al-Sh¥mÏ al-±anafÏ has stated with reference to al-¢Iqd al-FarÏd authored by ¢All¥ma al-Shurunbul¥lÏ al-±anafÏ:
“It is not imperative for a person to follow a particular school of law in all cases, without any exception.”
He further states:
“In certain issues, it is permissible for a person to follow another Imam’s school against the school of his own Imam, provided he cares for all the terms and conditions fixed by the other Imam.”
We learn from these proofs and statements that, about a given disputation, shifting from one juristic school to the other is permissible. However, this permissibility is dependent upon the fulfilment of certain conditions described by the jurists.
- categorIes of conformIst jurIsts and theIr ways of framIng the
According to the juristic classification, after the three levels of MujtahidÏn (al-Mujtahid fÏ√l-Shar¢, al-Mujtahid fÏ√l-Madh’hab and al-Mujtahid fÏ√l-Mas¥√il), there are three categories of Conformist Jurists:
- ass±®b al-takhr¬j (jurIsts: who are comPetent to conduct Inference)
They get to the origin of the proof and apply it to new circumstances according to the similarity or compatibility of the origin (a|l) and the branch (far¢). In this way, they conduct juristic research with analogies and examples and continue extending and applying the rules on newly emerging situations.
- ass±®b al-tarj¬± (jurIsts: who are comPetent to conduct Preference)
They give priority or preference to rulings and verdicts available within their own school on the basis of analogies and strength of other evidences in order to prove them more capacious, facilitating and beneficial for the people.
They are equipped with the capability of making distinctions, as to which verdict or evidence is stronger, strong or weak, or which opinion is the most correct, correct or incorrect.
On the basis of the principles of takhrÏj (Inference) and tarjÏ^ (Preference) and tamyÏz (Distinction), the Jurists continue expanding the juristic vision and its content, to make it all-inclusive and accommodating based on the inherent vastness of the legal evidence.73
- aPPlIcatIon of Intra-school PosItIon to Inter-school PosItIon
In like manner, the above-mentioned intra-school principles should be applied to inter- school matters, in order to infer, extend, prefer or adopt a verdict of any of the schools of law as per requirements. This is how the truthfulness and veracity of all the four schools of law would be practically applied and enforced. Otherwise, it will negate Islam’s global immensity and vastness.
One of the main Divine objectives, and why various schools of law earned acceptance and popularity amongst the Umma, was that all the commands and teachings of the Prophet Muhammad a should be protected, practiced and transmitted in their real manifestation. In this way every single Sunna of the Holy Prophet a would always remain alive. None of the Prophets’ practices, teachings and commands may be abandoned at any given time. Almighty Allah has practically protected all aspects of the holy life of the Prophet a in the form of different schools of law.
Nevertheless, the protection of the whole of the Sunna of Holy Prophet a would not have been possible through one school of law only, because some variations and alterations gradually took place in the Sunna from time to time, in accordance with occasional needs and circumstantial requirements. Therefore, the real purpose of the existence of different madh¥hib is to create a total comprehension of the Prophetic practices, and not to create a narrow and rigid vision of Islamic commands.
- guIdIng PrIncIPles for the methodology of InclusIon and
The following are the guiding principles for finding juristic solutions for modern issues, through the methodology of inclusive accommodation and flexibility (al-tawassu¢).
- As far as possible and whatever way it works, we should normally try to draw infer- ences from the rulings of the great Imams and must not exit from all of the four schools of jurisprudence. There is no harm in deserting one school of law and taking up the other in solving a specific complicated issue.
- Of the followed schools, whichever offers any key or solution to any modern-day complication or complex development, should be adopted to solve the problem. Therefore, conducting a modern ijtihad does not become the only solution, nor do we open the door of ijtihad to every Tom, Dick and Harry.
- This is so because the demand of necessity or compulsive intervention of time neither does open the door of ijtih¥d wide apart, nor shuts it absolutely. The right and moderate path lies between these two extremes, so that juristic reasoning is practiced under real necessity. And this juristic reasoning does not transgress or go independent of the principles and juristic procedures laid down by the schools of law. In brief, if the desired solution is found in the master books of any of the four schools, the edict can be issued from there, and so new juristic reasoning remains beyond any need.
- The change of school of law should not be due to personal desire; it should rather be owing to religious necessity or general expediency as stated by ¢All¥ma Ibn ¢®bidÏn al-Sh¥mÏ:
“A person’s change from one juristic school to the other due to worldly desires and pursuits without a solid reason will be an extremely condemnable act, because he has followed the prohibitions of DÏn and degraded his School of law.”
- Ibid., Radd al-Mu^t¥r ¢al¥ al-Durr al-Mukht¥r, 4:80.
- Leaving one’s own Imam’s verdict and following the other’s should be based on the strength of proof, legal expediency or circumstantial necessity. It should not be for the sake of avoiding the Divine Commandments.
- Only such a person is allowed to shift from one school to another who is sufficiently competent to distinguish between weak and strong reasons and equipped with knowledge of legal expediencies.
- If a solution is not explicitly found, even in any of these sources, there is no harm in exercising analogical deduction [al-ijtih¥d al-qiy¥sÏ] for unsolved matters provided the analogy is not absolutely differential [al-qiy¥s ma¢ al-f¥riq].
- However, if all the four schools do not offer any analogical solution to a modern-day problem, then we should go for exegetical deduction (al-ijtih¥d al-bay¥nÏ). This is reinterpretation of the text, following the exegetical and juristic principles and gen- eral legal provisions of the Qur√an and Sunna.
- Last but not the least, if we do not find any clear text of the divine command that can be used as juristic basis for the above-mentioned deductions, then we should go for deductive reasoning based on public interest. This can be conducted in the forms of: juristic preference (al-isti^s¥n), presumption of continuity (al-isti|’^¥b), public good (al-isti|l¥^), common benefit (al-ma|¥li^ al-mursala)’, ‘usage (al-¢urf) and convention (al-¢¥da)’, ‘legal necessity (al-\ar‰ra)’, ‘change of law by change of time (taghayyur al-a^k¥m bi taghayyur al-zam¥n)’, etc.
- There are some juristic principles, agreed upon and practised by all great scholars of the early Islamic generations, before the schools of law were formulated. One of these principles relates to interactions. According to this principle, wherever flexibility and facilitation is necessarily required, anyone of the four schools or any one of the Shari’a evidence will be adopted on the basis of compatibility between the spirit of Islamic teachings and the demands of the time.
In view of the current national and international complexities and changing ground realities, the jurists have followed the path of openness, flexibility and liberality (al-tawassu¢) instead of tenacious adherence to a single school of law or the path of narrowness and rigidity. As the basis of the problems grows wider and expands in span and novelty, the rules to resolve the problems also demand adoption of an open-minded and a holistic approach. If the issue is related to personal matters, adherence to a particular school of law will be preferred. However, if the problem happens to be wide-spectrum and involves a broader span of activity and extensive international repercussions, the methodology to deal with it would also be all-inclusive, liberal and wide-ranging.