Introduction by Dr. Imam Muhammad Ra’fat Othman,

Former Dean of Shari‘ah and Law Faculty at al-Azhar University

 بسم الله الرحمن الرحيم
 

We offer our Praise to God Almighty and ask His help and guidance; let Praise and Peace be upon our lord, Muhammad, his family, his companions, and upon all those who generously follow them, until the Day of Judgment.

In light of certain legal opinions that give the impression of Islamic law as a harsh and cruel system, Mr. Cherif Esmat ‘Abdel-Meguid, Chairman of El-Hatef El-Islami has asked me to provide an introduction to the present book, through which the fundamental flexibility of Islamic law, as set forth by God Almighty, may be shown.

Such flexibility is attested in the Qur’an:

 “Allah desireth for you ease; He desireth not hardship for you” (Q. 2:185)

 “And [He] hath not laid upon you in religion any hardship” (Q. 22:78)

 It is an established principle in Islamic law that some questions, to which final answers are unattainable (masa’il zanniya), are [therefore] open to a variety of legal opinions. For any such opinion to be legally valid, the jurist must ground his approach in evidence drawn from the sources of Islamic law. To our knowledge, none of the Imams or the senior scholars of law, working within or without Islamic law, said that his opinion, and only his opinion, is binding and free from error.

Rather, all of these scholars respected different, even contrary opinions to their own. This is why we find included, within books of fiqh and other legal sciences, the opinions of credible legal figures that are at odds with the opinions of the book’s authors. Indeed, after these [contrary] opinions are cited, the author invariably asks God Almighty to have mercy upon the opinion giver. Further, Imam al-Shafi‘i (r.a.) is reported to have said: “[to my mind] my opinion is correct, but there is always a possibility of error. By the same token, [to my mind] the opinion of someone other than me is incorrect, yet there is always a possibility that he is right”. While Abu Hanifa (r.a.) is reported to have claimed: “we [the jurists] realize that this is merely an opinion; yet, it is the best we have been able to reach. If someone produces an opinion better than this, we will accept it”. [Ultimately, it is clear that] No one following the Prophet (upon him be peace) has been capable of giving opinions that are entirely free of all error. Hence, we find ‘Abd Allah ibn ‘Abbas, ‘Ata’, Mujahidan, and Malik ibn ‘Abbas (r.a.) all saying that, except for the Prophet (upon him be peace), there is no-one whose words may not be rejected on occasion.[1]

The differences of opinion among the jurists enrich and widen the field of Islamic law. Such opinions were not churned out from the same factory line. Instead, they show great variation, particularly when jurists are confronted by new experiences [i.e. new questions], whether on an individual, group or national level. The resulting range of opinions draws attention to Islamic laws’ noble respect for freedom of opinion. Indeed, if there had not been such respect for the freedom of opinion, this vast reservoir of differing opinions would never have existed. The salient characteristic of our great scholars was clearly not to belittle the perspectives of others; here, except in a minority of cases – during which individuals went against the principles and the histories of their own law school – we find no zealotry or bigotry.

It was reported that one jurist, ‘Ubayd Allah ibn al-Hasan al-Karkhi (d. 340 AH), was particularly inflexible in his approach. Al-Karkhi placed any Qur’anic verse that contravened the rulings of the Hanafi scholars [which he followed] into one of two categories: metaphorically interpreted or abrogated.[2] But his understanding was flawed according to the principles established by the founders of the schools of Islamic law. For neither Abu Hanifa (the founder of the school Karkhi follows), nor any of Imams of the other schools, claimed either to be the sole possessor of the truth, or that their opinions were above correction.

Rather, the founders of the Sunni law schools admitted the possibility that, in drawing up their laws, some errors may have been committed. In support of this fact, one of them remarked: “If the meaning of a hadith is correct, then take this to be the ruling of my school, and ignore what I originally said”. This is the original method followed by the Companions (r.a.). Hence, when giving his legal opinion, Abu Bakr (r.a.) would say: “this is my opinion, if correct, then it is from God; yet, if wrong, then it is from me. And I ask forgiveness from God”.

In one conversation between ‘Umar ibn al-Khattab (r.a.) and a writer, the latter wrote down: “This is what God sees and also what ‘Umar sees”. ‘Umar responded angrily: “curses upon what you have written. Rather, you should have written: ‘that is what ‘Umar sees, if it is correct, then it is from God; if it is wrong, then it belongs to ‘Umar’”. Then, ‘Umar added: “God and His Prophet (upon him be peace) laid down the Sunna; one should not allow a mistaken opinion to become Sunna for the Umma [Islamic Community]”.[3]

[The same point is illustrated by] Ibn Mas’ud [who] was asked about a man who died before giving the dowry (mahr) to his new wife. People kept mentioning this to Ibn Mas’ud, who was reluctant to discuss the subject. After a month, the jurist eventually replied: “I shall give you my own opinion, and if it is correct then it is from God, while if it is wrong it is from Ibn ‘Abd Allah [i.e. from Ibn Mas’ud himself]. She takes her full dowry, similar to a dowry of any woman of her social status, without stinginess or extravagance; she should also take her full inheritance, and observe the standard three month waiting period (‘iddah) before marrying again”.

[In sum] Within Islamic law, there may be no objection to the existence of a variety of opinions and, following the Prophet (upon him be peace), no individual is infallible. In this book, certain opinions of scholars from al-Azhar will be at variance with the opinions of scholars preceding them. As we showed before, this is not a cause for concern, as long as the issues discussed are open to debate [rather than pertaining to established matters of religion], and built upon solid sources and evidence.

And God guide us to the Straight Path.

 

Dr. Muhammad Ra’fat Othman

February 23^rd, 2009