The Evolution of Fiqh(6. MAIN REASONS FOR CONFLICTING RULINGS)

We have seen that although the Imaams of the four major

Madh-habs were all agreed on the primacy of the four fundamental

priciples of Islamic law (the Qur’aan, the Sunnah, Ijmaa’and

Qiyaas), certain differences have occurred and still exist among the

rulings of their Madh-habs. These differences arose for various

reasons, the chief ones being related to the following aspects:

interpretation of ward meanings and grammatical constructions;

Hadeeth narrations (availability, authenticity, conditions for

acceptance, and interpretation of textual conflict); admissibility of

certain principles (Ijmaa’, customs of the Madeenites, Istihsaan, and

opinions of the Sahaabah); and methods of Qiyaas. Mention will be

made of the positions of the four existing Madh-habs where relevant.

The interpretational differences, which occurred over the

meanings of words, took three basic forms:

a) Shared Literal Meanings

There are a few words which occur in both the Qur’aan and

the Sunnah with more than one literal meanings; for

example, the word Qur (plural Quroo’ or Aqraa’), which

means menses as well as the time of purity between menses.

Thus, scholars of Fiqh were divided into two camps

concerning the interpretation of the Qur’anic verse,

“Divorced women should wait three Quroo’.” Soorah al-Baqarah (2): 228.

The particular interpretation chosen makes an important

difference when considering the case of a divorced woman

who has started her third menses. According to those who

considered Qur’ to be the period of purity, the divorce

becomes finalized as soon as her menses have started , while

according to those who viewed Qur’ as the actual menses, it

is not finalized until her third menses have ended.

(i) Maalik, Ash-Shaafi’ee and Ahmad ruled that Qur’ meant

the period of purity.

(ii) Abu Haneefa, ruled that Qur’ meant the actual

menses.

Abdullaah ‘abdul-Muhsin at-Tarki, Asbaab Ikhtilaaf al-Fuqahaa,

(Riyadh: Matba’ah as-Sa’aadah, 1st ed. 1974), p. 190.

Note:

‘Aa’eshah r.a  said, “Umm Habeebah had irregualr menses

and she asked the Prophet (s.w.) about it. He told her to

stop praying during the days of her Qur’s.”Abu Daawood and an-Nasaa’ee

 ‘Aa’eshah r.a was also reported to have said, “I told Bareerah to

observe a waiting period (‘Iddah) of three menses.”

 Ibn Maajah and authenticated by al-Albaanee.

These narrations clearly indicate that the intended

meaning of Qur’ is the menses itself.
 

b) Literal and Figurative Meanings

There are also some words in the Qur’aan and the Sunnah

which have both literal and figurative meanings. For

example to word Lams (touch) is literally used to indicate

touching by the hand or the coming in contact of two

objects, and figuratively to indicate sexual intercourse. Thus,

the jurists were of three different opinions concernign the

meaning of the Qur’anic verse:

“… or you touched (Laamastum) women and can

not find water, then make Tayammum(Purificationwith dust in 
the absence of water) from clean earth.”
Soorah an-Nisaa (4): 43 and Sorrah a-Maaidah (5): 6.

This verse occurs in the context of the factors which

break the state of Wudoo.(A ritual state of purity stipulated as a precondition for certain acts of worship.)

(i) Ash-Shaafi’ee and most of his students ruled that Lams

meant the touch of the hand or body contact. Therefore,

if a man intentionally of accidentally touche a woman or

vice versa, skin, then both of them would lose their state

of Wudoo.

(ii) Imaam Maalik and most of his students also ruled that

Lams meant touching by the hand. However, he

stupulated that Wudoo would only be broken if the touch

were pleasurable, whether the touch were intended or

unintended, skin on skin or otherwise. This was also the

most well known position of Imaam Ahmad. They took

the position that the dciding factor was the occurrence of

pleasure due to the existance of accurate Hadeeths

stating that the Prophet (s.w.) used to touch his wife

‘Aa’eshah’s foot in order to move it out of the way when

he was making Sujood (prostration during prayer).Sahih Al-Bukhari

(iii) Imaam Abu Haneefah ruled that Lams in the verse under

consideration meant sexual intercourse and therefore,

touching a woman did not break Wudoo, whether it was

accompanied by a pleasurable feeling of not.Biddayah al-Mujtahid.

 This position was based on the previously mentioned Hadeeth

of ‘Aa’eshah as well as another from her reported by the

Sahaabee, ‘Urwah, that the prophet (s.w.) kissed some of

his wives then left for Salaah without performing

Wudoo.(Sunan Abu Dawud 
 

c) Gramatical Meanings

There were also certain grammatical constructions in Arabic,

which were ambiguous. For example, the word elaa (to)

could simply mean “up to but not including”, as in the case

of the Qur’anic verse, “And complete the fast up to (elaa) the night.” 
Soorah al-Baqarah (2): 187.

The fast is continued up to Maghrib (sunset), the beginning

of the night, but does not include the night itself. There is no

dispute about this interpretation. However, elaa also means

“up to and including” as in the Qur’anic verse,

“And We will drive the guilty up to (elaa) Hell

like a weary herd.”Soorah Maryam (19): 86.

Thus, Fiqh scholars held two opinions concerning the

meaning of the following Qur’anic verse describing an

aspect of the performance of Wudoo:

“… then wash your faces and your hands up to

(elaa) your elbows.”Soorah al-Maa’idah (5): 6.

(i) Abu Hane4efah’s student Zufar, Ibn Daawood adh-

Dhaahiree166 and some of Maalik’s students

Shaakir in Jaami’ as-Saheeh,interpreted this verse to mean “up to but not

including the elbows.”

Ibn Qudaamah’s, al-Mughneevol. 1, p. 90.

(ii) The four Imaams all ruled that the verse meant “up

to and including the elbows.”
 al-Insaaf fee Bayaan Asbaab al-Ikhtilaaf, pp. 42, 43.

This position is

supported by the description found in authentic

Hadeeths of the Prophet’s (s.w.) method of

performing Wudoo.

Nu’aym ib Abdullah al-Mujmir said, “I saw Abu Hurayrah performing

ablution. He washed his face completely, then he washed his right arm

including a portion of his upper arm…then he said: This is how I saw

Allaah’s Messenger (s.w.) make Wudoo” (collected by Muslim (English

Trans.), vol. 1, p. 156, no. 477).
 

The causes of legal differences, which developed among jurists

over the narration and application of Hadeeths may be

subdivided as follows:

a) Availability of Hadeeths

There were numerous cases where certain narrations of

Hadeeths, did not reach some of the scholars, due to the fact

that the Sahaabah who narrated them had settled in various

regions throughout the Islamic empire, and the major Madhhabs

were founded in different parts of the empire before the

comprehensive compilations of Hadeeths were made. To be

more specific, the Madh-hab of Abu Haneefah (702-767

CE), Maalik (717-855 CE), Ash-Shaafi’ee and Ahmad (778-

855 CE) were founded between the middle of the eighth

century CE and the early part of the ninth, whereas the most

authentic and comprehensive compilations of Hadeeth (the

Sound SixBukhaaree, Muslim, Abu Daawood, at-Tirmidhee,) 
were not available until the latter  part of the

ninth century and the early decades of the tenth.

(i) Abu Haneefah ruled that Istisqaa (prayer for rain) did not

include formal congregational prayer (Salaah). His

position was based on the narration of Anas ibn Maalik

in which the Prophet (s.w.), on an occasion, made a

spontaneous Du’aa (supplication) for rain without

making Salaah.Sahih Muslim

(ii) However, his students Abu Yousuf and Muhammad and

the other Imaams all agreed that Salaah for Istisqaa was

correct.al-Mughnee

Their position was based on the narration of

‘Abbaad ibn Tameem and others in which the Prophet

(s.w.)was reported to have gone out to the prayer area,

made Du’aa for rain facing the Qiblah (direction of

Makkah), reversed his cloak and led the people in two

units of Salaah.Sahih Muslim
 

b) Weak Narrations of Hadeeths

There were cases where some jurists based their rulings on

Hadeeths which were in fact Da’eef (weak and unreliable),

because they were unaware of the unreliability of those

Hadeeths or because they took the position that a weak

Hadeeth was to be preferred to their Qiyaas (analogical

deduction)al-Madkhal, p. 210.

. For example,

(i) Imaam Abu Haneefah, his companions and Imaam

Ahmad ibn Hambal all held that the state of Wudoo

is broken by vomiting basing their ruling on a

Hadeeth attributed to ‘Aa’eshah in which she

reportedly claimed that the Prophet (s.w.) had said,

“Whoever is afflicted by Qay, Ru’aaf or Qals

(different forms of vomiting) should leave (the

Salaah), make Wudoo, then continue where he left

off without speaking during it.”

 Collected by Ibn Maajah from ‘Aa’eshah and rated Da’eef (inaccurate)

by al-Albaanee in Da’eef al-Jaami’ as-Sagheer (Beirut: al-Maktab al-

Islaamee, 1079), vol. 5, p. 167, no. 5434.

(ii) Imaam ash-Shaafi’ee and Imaam Maalik ruled for

two reasons that Qay’ (vomit) did not break Wudoo:

First, the above mentioned Hadeeth was not

authentic and second , Qay’is not specifically

mentioned in other sources of Islamic law as an act

which breaks Wudoo.
 

c) Conditions for the Acceptance of Hadeeths

Other differences among jurists in the area of the Sunnah

arose from various conditions they placed on its

acceptability. For example, Imaam Abu Haneefah stipulated

that a Hadeeth had to be Mash-hoor (well known) before

being regarded as admisible evidence, whereas Imaam

Maalik stipulated that a Hadeeth must not contradict the

customs of the Madeenites in order to be admissible. On the

other had, Imaam Ahmad considered Mursal(Hadeeth reported byone of the Students of the Sahaabah without

mentioning the name of the sahabee from whom he had heard it)

Hadeeths acceptable as proof, while Imaam ash-Shaafi’ee accepted

only the Mursal Hadeeths of Sa’eed ibn al-Mussayib which

most Hadeeth scholars felt were highly authentic.

Ibn Taymeeyah, Raf’ul-Malaam ‘an al-A’immah al-A’laam, (Beirut: al-

Maktab al-Islaamee, 3rd . ed. , 1970), p. 31.

d) Resolutions of Textual conflict in Hadeeths

The founders of the Madh-habs and their students took two

main approaches in resolving apparent contradictions

between the literal meanings of some of the recorded

narrations of Hadeeth. Some jurists chose the path of

{ Hadeeth reported byone of the Students of the Sahaabah without

mentioning the name of the sahabee from whom he had heard it.}

 “Tarjeeh” which meant giving preference to some Hadeeths

while rejecting others on the same topic. On the other hand,

some of the other jurists chose the path of Jama’, which

involved combining such Hadeeths using one in one in

general sense. For example, there is an authentic Hadeeth in

which the Prophet (s.w.) forbade Salaah at certain times

saying; “No Salaah (is allowed) after fajr prayer until the

sun has rised and after ‘Asr prayer until the sun has set.”Sahih Al-Bukhari
 At the same time there are other equally authentic Hadeeths

in which certain Salaahs were recommended without time

restriction. For example, “If any of you enters a masjid, he

should pray two Raka’aat (units of prayer) before sitting

down.”Sahih Al-Bukhari
 (i) Imaam Abu Haneefah gave preference to the firstHadeeth
 and  ruled that all forms of Salaah were

forbidden during the forbidden times.

(ii) Imaam Malik, Imaam ash-Shaafi’ee and Imaam Ahmad

combined the two Hadeeths, ruling that the first Hadeeth

was general and referred to voluntary Salaah (Nafl),

whereas the second Hadeeth was specific, allowing

highly recommended Salaah (Mustahabb) even during

the generally frobidden times.

The latter position is supported by the Prophet’s (s.w.) practise of

praying missed voluntary prayers of Dhuhur after the compulsory prayers of‘Asr which was reported by Umm Salamah and collected by al-Bukhaaree

There were among the Imaams some who developed a number of

controversial principles on which they based some of their

rulings. As a result, both the rulings and the principles became

source of differences among jurists. For example, the majority of

jurists recognized the validity of Ijmaa’ among the generations

after the Sahaabah, but Imaam ash-Shaafi’ee questioned its

occurrence while Imaam Ahmad rejected it outright. Similarly

the majority of jurists rejected Imaam Maalikreliance on the

customs of the Madeenites as a source of legislation. And Imaam

Abu Haneefah’s principle of Istihsaan and Maalik’s Istislaah

were both disallowed by Imaam ash-Shaafi’ee as being too

independent of the Qur’aan, the Sunnah, and Ijmaa’. That is to

say, they relied too much, in his opinion, on human reasoning.

On the other hand, Imaam ash-Shaafi’ee felt that the opinion of

the Sahaabah had to be accepted on legal matters, while others

felt that it was only reasoning on their part which was not

binding later generations.

Asbaab Ikhtilaaf al-Fuqahaa, pp. 126-138. See also Raf ‘ul-Malaam

‘anil-A’immah al-A’laam, pp. 11-49

The various approaches which jurists took in their

application of Qiyaas were perhaps the largest source of defferences

among them. Some narrowed down the scope of Qiyaas by setting a

number of preconditions for its use, while others expanded its scope.

Because this principle was based on opinion to a greater extent than

any of the others, there were no hard and fast rules with which to

contain it, and thus a wide range of differences developed.
 al-Madkhal, pp. 209-210.

 

1. Varying rulings arose from differences in interpretation which

were themselves attributable to variations in word meanings

(shared, literal and figurative) and grammatical constructions

(e.g. Qur’, Lams and elaa).

2. In the application of Hadeeths, a variation of legal rulings

occurred depending on the degree of availability of the Hadeeths,

their authenticity, the conditions imposed for their acceptance

and the methods of resolving textual conflicts.

3. Some Imaams evolved certain secondary legal principles and

made rulings based on them. Both the priciples and the rulings

were rejected by other Imaams (e.g. Istihsaan and Ijmaa’ of the

Madeenates).

4. The secondary principle of Qiyaas was generally accepted, but

the rules governing its deductive procedures varied among

Imaams, resulting in a variation in their rulings on similar issues.