The Ethics of Disagreement in Islam

Chapter Seven: Reasons for Differences

Differences of opinion on intellectual issues, and - by extension - on juristic ones as well, are natural on account of the inherent disparities in intelligence, understanding, and analytic capacity with which people are created. If we accept that this statement is valid. Then we must also accept that differences of opinion between several Companions during the time of the Prophet and the rightly-guided Khulafaa' did occur, and these have been well documented. We would be doing a disservice to this religion if we denied this phenomenon. By the same token we do not regard an open discussion of these differences as detracting from the purity of the Islamic message or from the sincere intention of those Companions who had differences. Indeed we can say that in mentioning these differences openly we are in fact testifying to the objective reality and validity of the Islamic religion.

Natural Differences

Islam treats people on the basis that they are human beings who, because of a variety of factors, are often at variance with the naturally pure state in which they were created. What is comforting to the believer, however, is that the differences of opinion among the Companions did not spring from weakness in belief (`aqeedah) or any skepticism as to the truth of the Prophet's teachings. Instead, they resulted from a genuine desire to ascertain the truth through patient investigation and discover the purpose of the Lawgiver.

So long as the Prophet, may God bless him and grant him peace, was the source of these laws, we find that no disagreement lasted longer than it took to refer it to him. From what we have said above about early Muslim history, we can say that the causes of differences of opinion in most cass hinged on the inguistic and juristic interpretation of Qur'anic texts and the interpretation of the Sunnah of the Prophet, peace be on him. There were certainly no hidden malicious motives behind these differences, much to the disappointment of the hypocrites who were bent on sowing the seeds of discord in the community. This accounts for the ease and the speed with which these differences dissipated as soon as the disputants met the Prophet or as soon as a relevant text was produced by anyone. From the Companions' attitude, we can see the soundness of the saying that one who possesses a sound natural disposition (fitrah) supports truth wherever he finds it.

It is to be expected that some differences and the reasons behind them should have been passed on from one age to another - there is no way of restricting these differences to a given period. However, with the rapid spread of Islam after the demise of the Prophet, there surfaced new and more critical issues in the Islamic sphere which have in turn contributed to the spirit of disagreement.

After the Assassination of the Third Khaleefah

In particular, since the assassination of the third khaleefah, `Uthmaan ibn `Affaan, the new regions to which Islam had spread were exposed to violent agitations. This imparted a new and completely alien dimension to the previously staid tradition of differences of opinion. The atmosphere of political agitation and uncertainty impelled people of every city and town to become more protective of whatever knowledge of the Prophet's Sunnah they had. They were wary of attempts to corrupt or fabricate traditions.

The cities of Kufah and Basrah emerged as centers of intellectual activity. They also provided a fertile ground for the exchange of political ideas and the proliferation of various sects such as the Khawaarij, the Shee`ah, and the Murji`ah [ The Murji'ah or "Deferrers" is a sect which derives its name from the word irjaa' which means postponing or deferring. They defer judgment of a sinner to God and the Day of Judgment. They consider that where there is faith, sin or wrongdoing does no harm; similarly where there is unbelief (kufr) right action is of no benefit. This position is contrary to accepted Islamic belief.] as well as the Mu`tazilah, the Jahmeeyah and other speculative and deviant groups.

At this time, there were as many intellectual and rationalist tendencies as there were groups, with each group formulating its own methods and principles for interpreting the texts of the Qur'an and the Sunnah and for dealing with new controversies. There was a pressing need to put in place some controls for regulating the situation, for specifying the methodologies that could be used for deriving positive laws from the divine revelation, and for specifying what was allowed and what was not in the conduct of controversies.

Fortunately, the very principle of allowing differences of approach in matters of jurisprudence (fiqh) was generally accepted. These were matters of detail and required, to begin with, a highly specialized knowledge of evidence from the Qur'an and Sunnah. The word "fiqh" literally means understanding. By extension it is used to denote the particular understanding which a jurist or faqeeh (literally `one who understands') brings to certain issues. The word fiqh also refers to the body of knowledge, rulings, and judgments which comes from a jurist's understanding of issues in the light of clearly defined principles.

On the basis of the knowledge available to him, a jurist may pronounce a judgment which may actually conform to what the Lawgiver intends, or it may not. Whatever the outcome, he is not required to do more than exert the utmost of his intellectual effort to arrive at a judgment. It is likely that his judgment may coincide with the purpose of the Lawgiver or be as close as possible to it in essence, purpose, and effect.

Given this approach, difference of opinion was therefore regarded as legitimate provided it fulfilled two conditions:

1. Each disputant must have evidence or proof (daleel) to authenticate his argument. Failure to provide such evidence would invalidate an argument.

2. The adoption of a divergent opinion should not lead to anything preposterous or false. If the opinion is manifestly false from the beginning, it should be abandoned straight away.

These two conditions illustrate the difference between ikhtilaaf, which suggests a justifiable difference of opinion, and khilaaf, which is more akin to discord. Ikhtilaaf presumes that sincere intellectual effort is exerted to arrive at a judgment; on the whole it represents an objective methodology. Khilaaf on the other hand departs from one or both conditions mentioned above. It is a manifestation of impulsiveness and obstinacy. It has no link with objectivity.

The jurists whose schools of thought were variously adopted by the Ummah as a whole adhered steadfastly to the two conditions mentioned above: providing necessary evidence to authenticate an argument and abandoning any position that was patently preposterous. Legal historians are not at all unanimous in specifying the causes of the juristic differences in that period in spite of the vast literature on the theme. The causes, nevertheless, could be attributed to three main factors: linguistic factors, factors pertaining to the transmission of hadeeth, and factors pertaining to the principles and rules of deduction.

Linguistic Causes

A single word in a Qur'anic text or hadeeth may have several different meanings. The word `ayn for example can mean an organ of sight, running water, pure gold, or a spy. If such a word is used in a context where it is difficult to say precisely what it means, even scholars (mujtahidoon) who try hard may give variant meanings of a word or expression which can be sustained by the text. Meanings may also be suggested which are totally at odds with the intended meaning of the word.

A case in point is the disagreement among jurists as to the true meaning of the word qar' in the verse: "And divorced women shall undergo, without remarrying, a period of three quroo'." (2: 228) The word qar' (plural: quroo') can either mean menstruation or purity following menstruation. The actual length of the waiting-period can thus vary depending on which meaning is adopted. Some jurists from the Hijaz concluded that the waiting period should be three intervals of purity while jurists from Iraq concluded that it should be calculated on three occurrences of menstruation, which could mean a shorter waiting-period. [ See al Qurtubee, Tafseer, 3/113; and Ibn Qudaamah, al Mughnee, 9/77 ff.]

Sometimes an expression can have both a literal and a figurative meaning. There was, however, disagreement among some scholars on whether in fact it was at all appropriate that Qur'anic expressions should have figurative meanings. Most scholars confirmed that it was appropriate while a few, like Aboo Isfaraayeenee and Ibn Taymeeyah, rejected such a possibility.

Those who did not agree that a Qur'anic expression might have figurative connotations argued that such connotations had no real bearing on the original usage of the word. Accordingly, the word "lion" for example cannot be taken to mean "a brave man." They argued that the Qur'anic texts came to clarify laws and not to confuse them, as figurative interpretations would tend to do. Our purpose here is not to debate this issue. The majority of scholars, as we have said, were of the opinion that figurative connotations of Qur'anic texts were admissible. Ibn Qudaamah and other jurists in fact considered the rejection of figurative connotations as a mark of obstinacy. [ See Rawdat al Naazir, 35 (Salafeeyah ed.).]

Nonetheless scholars, in studying Qur'anic texts, did differ in their understanding of the purpose of the Lawgiver. If a word suggested two interpretations, some scholars opted for the literal meaning and some for a figurative meaning. The word meezaan for example literally refers to a scale or an instrument for weighing things. Figuratively, it may have the connotation of "justice" as in the verse:

And the firmament has He raised high, and He has set up the balance (meezaan) in order that you may not transgress the balance. So establish weight with justice and fall not short in the balance (55: 7-9).

In its last occurrence, the word meezaan above has the literal meaning of a scale used to weigh goods. In its first and second occurrences the word meezaan may signify "justice" (`adl) or balance, [ Ibn Katheer, Tafseer, 4/270.] as in the following verse as well:

We have sent Our Messengers with all evidence of this truth and through them We bestowed revelation from on high and the balance (meezaan) so that mankind might behave with equity. (57: 25).

Figurative speech is also to be found in the overall context of a Qur'anic passage as in the verse:

Children of Adam! We have sent down (anzalnaa) on you clothes to cover your nakedness, and a thing of beauty (7: 26).

The word anzalnaa literally means "We have sent down". Of course clothes were not "sent down" from the skies as clothes. A literal understanding of anzalnaa is therefore inadmissible. Anzalnaa may instead be taken to mean "We have bestowed the knowledge of making or using." This meaning would fit other occurrences of the verb anzala in the Qur'an as when God said that "He bestowed the knowledge of making or using (anzala) iron" (57: 25). We cannot translate this literally as "And God sent down iron."

Another possible explanation of God "sending down clothes" is that God sent down the rain and caused plants to grow. He also created animals with wool, fur, and hair, and from these we make clothes. Hence the verse may refer to the finished product as a manifestation of God's bounty rather than the original water which He sent down and which is described elsewhere in the Qur'an as the source of every living thing.

Apart from the meanings of individual words, linguistic difficulties arose over questions of grammar. It is common knowledge that a direct imperative of a verb, for example "Do!", often indicates a command to fulfill an obligation; the negative imperative (Don't do!") indicates prohibition. These imperative forms, however, are not always used in this absolute sense.

The direct imperative form of a verb may be used, for example, to indicate a commendable course of action, offer guidance, give a warning, or convey some news. The command to "write out a deed of freedom" (24: 33) for any enslaved person requesting such a deed is taken by scholars either as an absolute command which has the aim of the abolition of slavery as a social institution or as indicating a commendable course of action. The command to the believers who give or take credit to "set it down in writing" (2: 282) is regarded as offering guidance and advice. The command addressed to those who deliberately turn away from the Prophet's message to "Do what you will" (41: 5) is generally regarded as a warning against the consequences of obstinacy. [ See ft27al Mahsool, 2/39 ff where fifteen forms of the imperative are listed.]

Apart from direct prohibition, the negative imperative may be used to encourage abstinence from acts which are improper or disliked, to offer guidance, or to convey some news. When God says: "So turn not your eyes [longingly] towards the worldly benefits which We have granted to some of those [that deny the truth]" (15: 88), the negative imperative "turn not your eyes" is taken to encourage abstinence from a potentially distressing attitude. And when God commands the believers: "Do not ask about matters which, if they were to be made manifest to you (in terms of law), might cause you hardship" (5:101), this is taken as offering guidance in avoiding undesirable curiosity. [See ft27al Mahsool, 469. Also, al Aamidee, Ihkaam, 2/187 (Riyadh edition).]

The varying ways of interpreting both positive and negative commands have contributed to differences among jurists in their approaches and in their methods of deriving laws from the texts of the Qur'an. Sometimes scholars may be at variance on the contextual use of words, even if they fully agree upon the meaning of the words. A case in point is the differences over the Qur'anic verse (2: 282) which deals with the role of the scribe and the witness in the recording of business transactions.

One interpretation, based on the reading of Ibn `Abbaas, gives the meaning of the verse as: "And let neither scribe nor witness cause harm." This interpretation takes the verb as being grammatically in the active voice: the scribe is taken to be guilty of writing something different from what had been dictated to him, and the witness guilty of giving false testimony.

Another interpretation, based on a reading of Ibn Mas`ood, gives the meaning of the verse as: "And let neither scribe nor witness suffer harm." This interpretation takes the verb to be grammatically in the passive voice: both the scribe and the witness might have harm done to them if they were forced to write or testify at a time when it was not convenient for them to do so. Harm could also come to a scribe and a witness, for example, by being held responsible for the eventual consequences of the contract as such, or for the nonfulfillment of any of its provisions by either of the contracting parties. [ See Ibn al Sayyid al Batlayoosee, al Tanbeeh `alaa al Asbaab Allatee Awjabat al Ikhtilaaf bayna al Muslimeen (Warning on the Causes Which Make for Disagreement among Muslims), 32-3.]

Those who are interested in investigating such causes for differences in opinion will find many examples in individual words and in grammatical constructions. According to these differences, a text may be regarded, for example, as either general or specific, absolute or limited, summing up or clarifying. Our brief treatment of the subject here may encourage the reader to study these fascinating linguistic roots of juristic differences in the specialized works available. [ See Ibn al Sayyid al Batlayoosee, al Tanbeeh `alaa al Asbaab Allatee Awjabat al Ikhtilaaf bayna al Muslimeen (Warning on the Causes Which Make for Disagreement among Muslims), 32-3.]

Differences over Hadeeth

Most of the juristic differences among the early scholars can be traced back to the narration of sayings attributed to the Prophet, peace be on him.

Sometimes a hadeeth never reached a certain scholar and so he might formulate his judgment according to the explicit meaning of a Qur'anic text or another hadeeth available to him. Alternatively, he might resort to qiyaas from a relevant judgment made by the Prophet, or he would have recourse to the presumed continuation (istishaab) of a law not known to have been revoked where the circumstances were analogous. Or, he might base his judgment on the principle of not burdening people with obligations when there is no textual evidence to warrant it, or on some other accepted principle of reaching a judgment through ijtihaad.

Sometimes in actual fact, a different hadeeth from that available to one scholar would reach another scholar, and this would result in different judgments on the same issue.

At other times, a jurist may receive a hadeeth which he considers to be defective, thus preventing him from using it for making a legal ruling. The following are some possibilities in this regard:

1. The chain of narration (isnaad) going back to the Prophet may not be sound and may include a narrator who is obscure or untrustworthy, or whose memory is weak or defective.

2. The isnaad may be "interrupted," that is to say the narrator did not cite the first authority who had heard the hadeeth from the Prophet.

3. The jurist, especially in the case of a hadeeth reported by a single narrator, may impose certain conditions for the probity of a narrator which others do not impose. His conclusions and his judgments on these particular issues may therefore differ from those of others.

The conclusions and judgments of scholars also differed according to their individual conceptions and definitions of the actual text and implications of certain hadeeth. For example, they differed on the meaning of certain technical terms in some hadeeth - terms such as: al muzaabanah, [ Al Muzaabanah - sale of expected yield of a crop for actual produce, for example, the sale of dates on a tree in return for picked dates or of grapes in return for raisins.] al mukhaabarah, [ Al Mukhaabarah - similar to share-cropping, where the right is given by the owner of a plot of land to a farmer to till it in return for some of the produce.] al muhaaqalah, [ Al Muhaaqalah - the sale of a crop before it is harvested, as is the current practice in `futures' markets.] al mulaamasah, [ Al Mulaamasah - a form of sale in pre-Qur'aanic times which is concluded by a buyer touching the goods which at once become his property whether the vendor agreed or not.] al munaabadhah, [ Al Munaabadhah - a sale in which a seller would throw an article towards the intending buyer to signify the completion of a sale.] and al gharar. [ Al Gharar - a sale in which the goods were not in the possession of the vendor at the time of the contract, nor was the quantity known, nor was it certain that the seller would be able to deliver them in order to fulfill the contract.]

Occasionally, there might be textual variations in versions of the same hadeeth to the extent that a key word might be missing from one text, or the entire meaning of the hadeeth might change because of this missing word. Furthermore, some scholars might receive a hadeeth which had a consistent internal meaning whereby it was possible to get a good understanding of its intended sense. Others were not so fortunate and their understanding of the hadeeth would be at variance with the intended sense.

Differences of opinion would also occur when one narrator heard only part of a hadeeth while another heard it in its entirety. The original text of a hadeeth might also be changed through misspelling, misrepresentation, or interpolation during the course of transcription - thus resulting in divergent conclusions and judgments. A jurist might also consider a hadeeth to be sound but at variance with another which he regards as more reliable. He would naturally go by the latter. In another situation, it might not be clear to him which of two pieces of evidence is more reliable and he would refrain from using either until such time as he attains independent confirmation.

A certain jurist might come across information which abrogates a hadeeth or makes it more specific or limited in scope. Another would not have the benefit of such information and this would of course result in differences in their schools of thought. [ See Raf` al Malaam, 7.]

Differences over Juristic Methods

This is the third major factor in explaining the emergence of differences of opinion.

Usool al fiqh (sources and principles of jurisprudence) may be defined as the science which embodies knowledge of the proofs or evidences (adillah; singular: daleel) on which jurisprudence is founded, the methodology of making deductions from this knowledge, and the subject to which the law applies. All the principles and rules formulated by scholars for regulating the process of ijtihaad and deriving subsidiary laws of the Sharee`ah form part of the science of usool al fiqh. In their various methodologies, jurists specified the basic principles which they used for formulating laws and they gave the proofs (.hujjeeyah) for these laws. They elaborated all the steps they took from the beginning to arrive at a legal ruling.

The scholars of various schools of thought differed in the principles and rules they used. Some, for example, admitted the rulings of Companions of the Prophet as a sound basis for making a judgment on the grounds that a Companion of the Prophet, because of his moral probity, would only give a verdict on the basis of proper evidence, or proper understanding of the evidence, or on the basis of having heard a relevant statement directly from the Prophet which they were unaware of. Others did not place such a great reliance on the rulings of the Companions, choosing to go by only what the companions reported directly from the Prophet and not their interpretations, impressions, or actions.

Some scholars adopted the principle of al masaalih al mursalah (public interest) which is neither commanded nor prohibited in any primary source but is based on the conviction that all the laws of the Sharee`ah are intended for realizing the welfare or the good of mankind. Others did not take this principle as a valid source of law, and this led to actual differences in formulating laws.

There are many other principles of this kind on which the scholars were at variance. They differed over the admissibility of using the principles of "blocking the means to wrongdoing" (sadd al dharaa'i`); "juristic preference (istihsaan); "presumption of continuity" (istishaab); "adopting the more cautious" (al akhdh bi al ahwat); "adopting the more lenient" (al akhdh bi al akhaff); "adopting the more severe" (al akhdh bi al athqal); "customary law" (al `urf); and "local custom" (al `aadah). They also differed on the implications of primary texts, the methods of arriving at these implications, and what could justifiably be supported from these texts. In this way, there arose many differences in the field of subsidiary laws.

This is a brief outline of the most important causes for juristic differences. Those who are interested in further research or in finding relevant examples to clarify the various points of difference may draw upon available works, both classical and modern, which deal with these issues. [ See Nuzhat al Awliyaa', 392; Daa'irat Ma`aarif al Qarn al `Ishreen (Twentieth Century Encyclopaedia), 4/141.]