Ikhtilaf (disagreement among jurists and its kinds)

Ikhtilaf (disagreement). In the lexicon it is the verbal noun of ikhtalafa, the opposite of agreement; whatever is not equal has differed. Khilaf is opposition; one opposes another to a thing when he disobeys him after forbidding him. Jurists use ikhtilaf in its lexical sense, and khilaf likewise. ¹ Related terms: some glossers distinguish khilaf from ikhtilaf: the latter is used of a view built on evidence, the former of what has no evidence; the distinction is not always kept, and the two words are sometimes used as one; khilaf is the wider, and is alone used of opposing a consensus. ^{1 2} Tanazu' (dispute) is sometimes used by the jurists in the sense of ikhtilaf. ² Iftirak, tafarruq and firqa (separation) mean that each group of people stands apart by itself; these are narrower than ikhtilaf. ² Disagreement in matters of ijtihad ('ilm al-khilaf): the jurist must establish the point of disagreement, since to report a disagreement on a point where there is none is an error. ² Kinds of disagreement: not every conflict between two views is a true disagreement; it is either in expression, or in variety, or in contrariety, and the last is true disagreement. ² Disagreement in expression: each of two disagreeing parties names the meaning in words other than the other's. The example: explaining the straight path as the Qur'an or as Islam, which agree since Islam is following the Qur'an. ² Disagreement of variety: each names some kinds of a general term by way of example and warning, not as an exact definition. The example: the explanations of the three kinds of servants named in the verse of Fatir (32), by the times of prayer, or by almsgiving, selling and usury. It may be obligation in one case and recommendation in another, as the duty of holy war on some, almsgiving on others, and teaching on a third. Collective duties are sometimes, in some times and places, become personal for one who is not discharged by others. ^{2 3} Al-Shatibi restricted the disagreement that is not true to ten kinds, including: disagreement in expression; a disagreement not on the same point; the varying views of one imam due to a change of ijtihad; and disagreement in act, not ruling, as the readers' differences in the modes of recitation, which they did not deny to one another but allowed. ³ The ruling on disagreement by kind: the matters of religion are either its principles or its branches, and each is either proved by decisive evidence or not, so there are four kinds: ³ First, principles proved by decisive evidence, such as God's existence and unity, the angels, the books, the mission of Muhammad and resurrection; there is no room for disagreement, and whoever misses the truth in them is an unbeliever. ³ Second, some matters of principle such as the vision of God in the hereafter, the creation of the Qur'an, and the exit of the monotheists from hell; some hold the one who disagrees is an unbeliever, al-Shafi'i among them; the condition of not declaring unbelief is that the dissenter accepts what the Messenger brought, and denial that declares unbelief is to deny what the Messenger reported and claim it is a lie. ^{3 4} Third, branches known from religion by necessity, such as the obligation of the five prayers and the prohibition of adultery; there is no room for disagreement, and whoever disagrees is an unbeliever. ⁴ Fourth, branches of ijtihad whose evidence may be hidden; disagreement occurs here, and the dissenter is excused for the hiddenness or conflict of the evidence, or disagreement over its establishment; this is the kind the jurists mean when they say there is disagreement on a matter. ⁴ If there is a sound, clear text which the jurist did not know of and therefore disagreed with it, he is excused after his effort, and those who follow him are excused in leaving his opinion for the sound evidence that proves he did not know it; but this is not counted as disagreement in legal matters, since it is ijtihad that did not meet its object. ⁴ Proof that disagreement in branch matters is permitted: first, what the Companions did at the Qurayza expedition, when the Prophet ﷺ said on the day of the confederates: «let none pray 'asr except in Qurayza»; some reached 'asr on the road and said we will not pray until we reach it, and others said we will pray, since that was not what was meant; the Prophet was told and did not rebuke any of them. ^{4 5} Second, the agreement of the Companions, in matters on which they disagreed, that each party accepts the others' acting on their own ijtihad, in worship, marriage, inheritance, allowances and government and the rest. ⁴ Disagreement without use: Ibn Taymiyya said disagreement may arise in the wording of Qur'anic exegesis without any basis in transmission from the Prophet, or on reports whose sound cannot be told from the weak, with no sound reasoning; such disagreement has no benefit, and speech in it is idle; what Muslims need to know God has set a proof for. Examples are the disagreement about the People of the Cave, the part of the cow with which Moses was struck, and the size of Noah's ark; such things are known only by transmission, and what comes from the People of the Book, such as Ka'b and Wahb, may neither be believed nor denied without proof. ^{4 5} Whether permitted disagreement is itself a kind of agreement: al-Shatibi holds that the disagreement which counts in appearance goes back in reality to agreement: disagreement in some legal matters goes back either to a matter lying between two clear sides that conflict in the view of jurists, or to the hiddenness of some evidence, or not having seen the evidence; the last is not true disagreement, since if the jurist saw the hidden evidence he would retract. As for the first, his wavering between the two sides is a search for the Lawgiver's purpose, and following the evidence that guides to it; they agree on this purpose, so the mutual love and harmony of those who disagree in matters of ijtihad becomes clear, since they meet in seeking the purpose of the Lawgiver, and so they do not become sects nor split apart. ⁵ Al-Sha'rani took another way, carrying each view to a state of those obliged: whoever is strong is addressed by the firm rule, and whoever is weak is addressed by the concession. ^{5 5} Is disagreement a mercy? It is the well-known view that the disagreement of the community's jurists in branch matters is a mercy and a breadth for it; those who say so cite the report of Ibn Abbas, very weak in its chain, «my companions are like stars in the sky; whichever you follow, you are guided; and the disagreement of my companions is a mercy to you», and the hadith «the disagreement of my community was made a mercy, and among those before us it was a punishment». ⁵ The jurists took support from sayings of some Successors: al-Qasim ibn Muhammad said God benefited by the disagreement of the Prophet's Companions in their practice, so that whoever acts on one of them sees himself in ease and sees that a better one has done it; Umar ibn Abd al-Aziz said he did not like the Companions to have had no disagreement, since if there were one view people would be in hardship; Yahya ibn Sa'id said the disagreement of the people of knowledge is an ease. ⁶ Ibn Abidin said that disagreement among the mujtahids in branch matters, not disagreement as such, is one of the signs of mercy, and the more disagreement, the fuller the mercy. ⁶ This rule is not agreed. Ibn Wahb reported from Malik that there is no ease in the disagreement of the Prophet's Companions; the truth is in one view. Al-Muzani, a disciple of al-Shafi'i, said God censured disagreement and ordered a return on it to the Book and the sunna. ⁶ Ibn Taymiyya took a middle way: disagreement may be a mercy and may be a punishment. A dispute over rulings is a mercy when it does not lead to grave evil; the truth in itself is one, and its being hidden from the obligated may be a mercy from God; likewise what is in the markets may in fact be usurped, and if a person does not know, all of it is lawful for him; hidden knowledge of what would bring hardship may be a mercy, as hidden knowledge of what would bring concession may be a punishment; the concession is a mercy; and what the soul dislikes may be more beneficial, as in holy war. ^{6 7} Causes of the jurists' disagreement: it either comes from desire or from ijtihad permitted by the law. Disagreement from desire is blameworthy, since the jurist follows the evidence; if he bends the evidence to what he desires, he makes the evidence follow his desire. Al-Shatibi said disagreement from desire is not true disagreement, and that desire leads to following the ambiguous, seeking victory and the excuse of disagreement, and to division and hatred; so the views of the people of desire are not counted in the disagreement the law recognises; they are mentioned only so that they may be refuted. ⁷ Permitted disagreement from ijtihad has causes, which the usulis touch on and which have been collected: early writers include Ibn al-Sayyid al-Batalyawsi in «al-Insaf fi asbab al-khilaf», Ibn Rushd in the introduction to «Bidayat al-mujtahid», and Ibn Hazm in «al-Ihkam». They go back either to the evidence itself or to the usuli rules concerning it. ⁷ Among causes going back to the evidence, Ibn al-Sayyid lists: generality and ambiguity of words open to interpretation; a text that may or may not stand alone for a ruling; a text that may be general or particular, as in the saying «there is no compulsion in religion», whether it is general or limited to the People of the Book who accept the poll-tax; differences of the readings of the Qur'an and the reports of hadith; claims of abrogation or not; and a jurist's not having seen a hadith or having forgotten it. ⁷ Causes going back to the usuli rules are hard to count, since every disputed rule of usul gives rise to disagreement in the branches built on it. ⁷ Denunciation and taking account of disagreed matters. First, denunciation: al-Suyuti said «what is disputed is not denounced, but what is agreed is denounced», and he excepted cases where a disputed view is denounced: where its basis is remote, as the hadd on a pledgee who has intercourse with a pledged slave-woman; where it comes before a judge who rules by his own belief; and where the denouncer has a right in it, as a Muslim husband who prevents his dhimmi wife from drinking wine. ⁷ Ibn Taymiyya held that a jurist may believe that his opponent in matters disputed between the lawful and the forbidden has committed the forbidden, but the threat and the curse do not reach one who has made permitted ijtihad; he is excused and rewarded for his ijtihad, and so is one who follows him in a valid following. ⁸ Second, taking account of disagreement: whoever holds a thing permitted leaves it if another holds it forbidden; in the case of obligation, whoever holds it lawful is recommended to do it if some imam holds it obligatory: one who holds witr not obligatory is recommended to keep it, to leave the disagreement of those who make it obligatory. One who holds a thing obligatory cannot take account of the view of one who holds it forbidden, nor one who holds it forbidden of one who holds it obligatory. ⁸ The ruling on taking account of disagreement: al-Suyuti of the Shafi'is held leaving the disagreement is recommended, with conditions: that it does not cause taking account of another disagreement; that it does not oppose a established sunna, which is why raising the hands in prayer is a sunna and the Hanafi view that it invalidates prayer is disregarded, since it is established from fifty Companions; and that its ground is strong enough not to be a slip, which is why fasting on a journey is better for one who can bear it, and the view of Dawud that it is not valid is disregarded. ⁸ Taking account of disagreement after the act. Al-Shatibi notes another kind: the person commits an act whose prohibition or permission is disputed, and the jurist who holds it forbidden may let what has occurred stand, in a way that is just, because the act matched a view of the evidence in general, though weaker; keeping the state is better than undoing it when undoing harms the actor more. His example is marriage without a guardian: on the hadith «any woman who marries without her guardian's leave, her marriage is void», yet such a marriage establishes inheritance and lineage and is not treated as fornication, because the disagreement about it stands. ⁹ Al-Shatibi says the ignorant who errs has two regards: his opposition to command and prohibition, which requires nullity, and his intention to comply in general, since he enters the Muslims' ways and is judged by their rulings; his ignorance does not take him out of the Muslims' ruling unless the nullity is plainly required by a clear command. ¹⁰ The layman's choice or search in disputed matters. Some Shafi'is and Hanbalis held that a layman faced with conflicting fatwas from his scholars may choose whichever he likes, citing the agreement of the Companions not to object to acting on the less excellent view when the better is present. Others held that a preponderance is required; this is the view of the Hanafis, Malikis, most Shafi'is and a view of Ahmad. Then some said he takes the stricter view, some the lighter, and some the view of the most learned; al-Ghazali said he takes the view of the one most excellent in his eyes and most likely right. ¹⁰ Al-Shatibi supported the second view: the layman may not choose at will, since each of two muftis follows evidence that points to the opposite of the other's; to follow one from desire is to follow desire; so only preference by learning or the like remains; and free choice leads to hunting for the concessions of the schools without evidence. ¹⁰ What the judge and mufti do in disputed matters. The Shafi'is and Hanbalis, and a Maliki view, require that the judge be a mujtahid; ibn Qudama held that a judge may not rule by following another at all, whether the truth has appeared to him or not, and a mufti may not give fatwas by following. The Shafi'is accept a judge who follows, if the ruler of power appoints him when no mujtahid is available, out of necessity; the Malikis accept a following judge. The Hanafis regard ijtihad as only a condition of excellence. ¹⁰ On the first view, in a disputed matter with no text or consensus the judge rules only by what is preponderant by the principles of ijtihad. On the Malikis' view a following judge rules by the preponderant view in his school, not by a weak one nor by another school's view, otherwise his ruling is annulled, unless the weak view has a ground that appears preponderant to him. ¹¹ The Hanafi procedure: the judge rules by the Book of God, then the sunna of the Prophet, then what came from the Companions; if they differ he prefers one by his ijtihad, if he is a mujtahid, and may not oppose them all; if nothing comes from them, by the consensus of the Successors. When Abu Hanifa and his companions differed, Ibn al-Mubarak said one takes the view of Abu Hanifa, since he was of the Successors. ¹¹ Judgement ends disagreement for the case. When a judge rules in a case by a disputed ruling which may be held, since it contradicts no text or consensus, the dispute is ended for that case and the ruling becomes like an agreed one; no one may annul it, not even the judge who gave it; in other cases the disagreement is not ended by the judgement. ¹¹ This is one of the well-known rules, usually titled «ijtihad is not annulled by its like»: if such judgements were annulled, the annulment could be annulled too, and the second is no stronger than the first; the first is strengthened by the judgement's having been given. Abu Bakr gave judgements which Umar disagreed with, and did not annul them; Umar ruled in the case of the shared inheritance that it was not shared, then ruled in another case that it was shared, and said: «that was by what we judged, and this is by what we judge». So a judge does not annul the past, and may judge the future differently. ¹¹ The ending of disagreement by the act of the imam or his deputy. When the imam or his deputy acts in a matter disputed among the valid views, what he has done is not annulled and becomes like what is agreed for the past; for the future he may act otherwise if the view of the public good changes. Abu Bakr set equal shares; when Umar came he gave precedence by seniority and nearness to the Prophet. Jurists said the imam may annul the acts of earlier imams, since he follows the public good, and the public good may change. ^{11 12} Ibn Nujaym: if the imam saw something and died or was removed, the next may change it where it concerns public matters, the rule against annulling ijtihad by ijtihad being excepted, since this is a ruling that turns with the public good, and when the next sees it, following it is required. Ibn Taymiyya held that where a matter is one of disputed ijtihad which the dispute has spread in, no one may object to the imam or his deputy, nor annul what they did; yet the scholar or ruler is not infallible, so it is lawful to show the truth that must be followed, even if that shows where a scholar or ruler erred. ¹² Praying behind one who disagrees in its rulings. The imams gave indications that the worshipper may follow an imam whose ijtihad in prayer rules differs from his own, even if he believes what the imam did invalidates the prayer or that another is better; for since the imam's ijtihad or following is valid, to stand apart from him is a kind of division, and differing outward acts lead to differing inner states. Abu Yusuf prayed behind Harun al-Rashid, who had been cupped and had not renewed his ablution, on the opinion of Malik, and did not repeat his prayer; al-Shafi'i omitted the qunut in the dawn prayer when he prayed with a Hanafi congregation in a mosque near Baghdad, which the Hanafis took as courtesy to the imam, and the Shafi'is as a change of his ijtihad at that time; Ahmad, asked about one who saw an imam cupped and pray without ablution, said: «how could I not pray behind Malik and Sa'id ibn al-Musayyab?». Some later jurists tended to be strict. ¹² The imam's accommodation of those praying behind him who disagree: this is recommended as above: the imam does what the worshipper holds a condition, pillar or obligation even if he does not hold it so; but where the worshipper holds a thing a sunna which the imam holds disliked, such as raising the hands at transitions or the audible basmala, no leaving of the disagreement is possible. Ibn Taymiyya said that if the disagreement is over the better course, the imam may leave what he holds better when it wins the hearts of the congregation, and when he cannot bring them to the better course, the benefit of agreeing with them is preferred. ^{12 13} Disagreement between contracting parties: two may dispute a right to God or one's right against the other, arising from a contract such as sale, hire or marriage, or from a dissolution such as cancellation or divorce; the way to end it is a claim before the judge; the general rule is stated under the chapter on claims. ¹³ Disagreement of witnesses: if the two witnesses of a sale or the witnesses of adultery disagree, this prevents full testimony in some cases; details are under testimony. ¹³ Disagreement between texts and other evidence: if evidences differ, reconcile them where possible; if not, prefer one; if no preference is possible, the later of the two is taken to abrogate the earlier, as treated under the chapter on preference among evidences in the usuli annex. ¹³

The Sheikh states a principle of legal theory: a disputed matter does not become a binding ruling. As an example he gives a matter Abu Hanifa holds to be permitted while the Shafi'is dislike it ¹⁴. He says Abu Hanifa's view is not binding on others, nor is al-Shafi'i's, that one binds another only where the verse is clear, and that the Messenger, unlike others, is protected from error ¹⁵. He mentions that hadith scholars may weaken a hadith because of a flaw in the chain or because it is not certain in transmission and meaning, that some hadiths count as gharib, and that single-narrator hadiths (as the context suggests) are not used for matters of creed, since creed needs what comes from the Book of God ¹⁶.

The presenter asks how to handle the disagreement among jurists, and the fact that some judge others to be wrong ¹⁸. The Sheikh holds, as his own opinion, that a scholar may argue by evidence, that argument is not in itself forbidden, and he says that Arabs have not raised their children in the manners of disagreement and dialogue (needs_source) ¹⁷.

The Sheikh poses the question whether conspiracy, or internal disputes among believers, explains the defeat of Muslims in Iraq (needs_source) ¹⁹.