Sunna's
fiqh

Fikh of divergence II

III. Demonstrating the great value of the Ulemas of Sharia.

The Ulemas of Sahria have high position and great value. Ibn Qaim El-Djawzia was among the Ulemas who expressed and stated this value in his book Iîlam El-Muwaqiûn (Informing the Signer). He said: "The Ulemas of his nation (.i.e. the nation of the prophet Muhammad -may peace be upon him) were of two categories: those who learn the Hadith and the Fuqaha of Islam, they were stars and Allah made them skilled and guided them to adjust the rules of Hallal (the lawful things) and the rules of Haram (the forbidden things)". [Volume 01, page 08 and 09].

- Ibnu Taymia said in his book Rafû El-Malam ân El- Aimma El-Aâlam (Removing Reproach from the Eminent Ulemas):"…They are the successors of the prophet -may peace be upon him- in his nation, they are the ones who revive what died out from his Sunna, the ones by whom the Book is raised and the ones raised by the Book, they are the ones whom the Book mentioned and the ones who mentioned the Book…Indeed, they all agree on the obligation of following the prophet -may peace be upon him- and the saying of each one of them may be considered or neglected except that of the prophet -may peace be upon him".

IV. The mental restrictions of divergence.

1- The perception of the reasons of divergence between the Ulemas.

Omar bnu Abedl Aziz said: «What delights me is the fact that the companions of the prophet -may peace be upon him- diverged, because if they did not diverge, there will be no permissions for us».   

 In fact, the divergence of the prophet's companions was in the branches and not in the principles/rudiments of the Islamic Sharia.

Concerning the divergence between the doctrines, the Council of the Islamic Fiqh Complex in its tenth assembly held in Mecca in Safar 1408 Hegira which corresponds to October 1987 AD decided that the divergence which is based on legal reasons is wisdom and a mercy for the nation.

2- Adopting moderation and temperance.

Ibn Massûd reported that the prophet -may peace be upon him- said: «Perished are the fanatics». [Reported by Muslim]. This Hadith informs about the end of fanaticism/fanatic persons which is eternal damnation and total loss. This information is true because it is said by the prophet -may peace be upon him- who is a truthful person. It may also carry a curse and the curse of the prophet -may peace be upon him- is not rejected.

The Ulemas interpreted "the righteous way" in the Almighty Allah's saying «Guide us to the rightaous way». [Surat Al-Fâtiha/The Opening of the Book, 06] as the moderate way.

The Almighty Allah said: «And so we have appointed you as just and distinguished nation, to be witnesses over all people, and the messenger is a witness over you…». [Surat Al-Baqara/The Heifer, from the verse 143].

3- The non disavowal in the divergent matters.

It is not permissible to be dogmatic in a given divergent matter. For instance, the matter of shortening the prayer: For Abu Hanifa, it is a determination and he prefers its shortening, but for the other Fuqaha like Imam Mâlik, Esh-Shafiî and Ahmed, it is permission.

- The matter of El-Fârr divorce (i.e. the divorce that is pronounced by the person who is on the verge of his death). Abu Hanifa said that the divorced woman inherits her husband as long as her legal prescribed period (Idda) is not finished yet. Imam Ahmad said that she gets her share of inheritance as long as she is not yet married and Imam Mâlik claimed that she has the right to inherit him even if she is remarried according to the following rule: «He who precipitates a matter before it happens is punished contrarily to what he intended».

4- Cooperation in what is agreed on and tolerance in what is disagreed on.

This is called 'El Manâr' rule which is written by Sheikh Muhammad Rechid Reda.

1. The matters agreed on: These matters are numerous, among them:

- Monotheism.

- The five pillars of Islam.

- The rules of lawful and the forbidden things.

- Morals.

2. The matters disagreed on: The Ulemas' divergence in these matters is legally justified. Among these matters, we mention:

- Raising the hands during invocation.

- Praying arm crossed or letting the hands down.

- Raising the hands when kneeling down and raising.

- Uttering the invocation "in the name of Allah, the Most Gracious, the Most Merciful" in the prayer loudly, silently or not uttering it at all.

V. The moral and the educative restrictions.

1- Sincere devotion or faithfulness to Allah in any deed and saying. The Almighty Allah said: «Say: "surely my prayer and devotion, my life and my death are all for Allah, the Lord of the Worlds. No partner has he, and this is what A have been commanded, and A the first of those who are Muslims». [Surat Al-Anâm/The Cattle, 162 and 163].     

2- Averting fanaticism: the sects, the doctrines, the parties as wall as the individuals must keep away from fanaticism.

3- Avoiding harming the opponents and having good opinion of them and their sayings, especially when the Ulemas are concerned because they are the heirs of the prophets -may peace be upon them.

The Almighty Allah said: «…Shun most suspicion; some suspicion is a sin…». [Surat Al-Hujurat/The Chambers, from the verse 12].

4- Sticking to friendly discussions with the opponents. The Almighty Allah said: «…And reason with them a well mannered way…». [Suart An-Nahl/The Bee, from the verse 125].

VI Conclusions

1- The divergence that is allowed is the one which is based on legal reasons and warrants.   

2- The banned divergence is the one which is based on longing and self inclinations.

3- If the Ulemas strive to solve a matter and succeed, they are rewarded twice and if they failed, they receive the reward of their diligence. The prophet -may peace be upon him- said: «If a judge strives (in a given matter) and hits the mark in his judgment, he will be rewarded twice, and if he strives and misses the mark in his judgment, he will be rewarded once». [Reported by El Boukhari].

4- Divergence must not affect the relations between the opponents not to spoil love and affection that join them.    

5- When divergence occurs, it must be based on ethics and legal reasons.

6- Imitating the great Ulemas in their behaviors towards the opponents in case of divergence. For example:

- Imam Esh-Shafiî diverged with his teacher Imam Mâlik, but whenever Imam Mâlik is mentioned before him, he says: "If the Ulemas are mentioned, Imam Mâlik is (their) star".

- Imam Ahmad too differed with his teacher Esh-Shafiî but he remained for many years invoking Allah for him. Once, his son said to him: "O my father! I heard you multiplying invocation for Esh-Shafiî, so who is he?" Imam Ahmad answered: "Esh-Shafiî was like the sun for the earth, and like a cure for people, so is there a substitute for them?"

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