10. THE POSITION OF FUQAHĀ’ (MUSLIM JURISTS)

During my stay in this city (Edmonton) I notice that disagreements and discussions among our Muslim brother sometimes occurred which led to hot debates. Fortunately, the issues did not deal with the essence of Islam, namely, the faith. I wonder why we do not consult the fuqahā’ (Muslim jurists) in the Islamic world instead of leading a discussion which does not lead anywhere.
It is normal to have different views. It is natural to be different. There is no harm in being different as long as we are tolerant and broad-minded. The following h.adith will hopefully give us a lesson.
After the campaign of al-Azāb the Prophet on his way to Madinah Jibrīl (Gabriel) came to him and told him that Allah ordered him to march towards Banī Qurayz.ah. He asked Bilāl to announce it to people which he did and said:
مَنْ كَانَ سَامِعًا فَلَا يُصَلِّيَنَّ الْعَصْرَ إِلَّا فِي بَنِي قُرَيْظَة
(أَخْرَجَهُ الطَّبَرَانِيُّ وَالْبَيْهَقِيُّ)
"Whoever heard this (announcement) should not
pray ‘As.r until he reaches Banī Qurayz.ah” 32
Some companions, by using ijtihād and reasoning, prayed on the way before ‘As.r time was over and said that the Prophet merely wanted them to arrive early at Banī Qurayz.ah, not to delay the ‘As.r prayer. In other words, they did not stick to the text of the Prophet’s order, but followed what they thought the Prophet meant by his order. The other group stuck to the literal meaning of the Prophet’s order, namely, whatever happened they should not pray ‘As.r until they reached Banī Qurayz.ah. When the Prophet heard this discrepancy, what did they say to them? He did not blame any of the two groups. He did not say that one of the two groups was right and the other was wrong. Why? Both groups were obeying the Prophet according to their understanding.
Dr. Muhammad ‘Abd al-Karīm al-Jazā’irī told us the following story: Sufyān b. ‘Uyaynah said: “Abū H...anīfah and al-Awzā‘ī met each other at دَارُ الْحَنَّاطِيْن (the barn) at Mecca. Al-Awzā‘ī asked Abū H...anīfah: ‘Why don’t you raise your hands when you bow down and when you raise from bowing in your prayer?’ Abū H...anīfah answered: ‘Because there is no sound report stating that the Prophet did it.’ Al-Awzā‘ī asked: ‘How? Al-Zuhrī narrated to me from Sālim from his father (Ibn ‘Umar) from the Prophet (p.b.u.h.) that he raised his hands when he started the prayer, when he bowed down and when he raised from bowing.’ Abū H...anīfah said: ‘H...ammād narrated to me from Ibrāhīm al-Nakhā‘ī from ‘Alqamah and al-Aswad that the Messenger of Allah (p.b.u.h.) did not raise his hands except in starting the prayer.’ Al-Awzā‘ī said: ‘I told you about the h.adīth narrated by al-Zuhrī from Sālim from his father, and you told me the h.adīth from H...ammād from Ibrāhīm.’ Abū H...anīfah said: ‘H...ammād knew more about fiqh (Islamic law) than al-Zuhrī; Ibrāhīm knew fiqh more than Sālim; al-‘Alqamah was not less knowledgeable in fiqh than Abdullah ibn ‘Umar; if ‘Abd Allāh had a merit of being a companion of the Prophet, al-Aswad had also many merits. ‘Abd Allāh is ‘Abd Allāh.’ So, al-Awzā‘ī kept silent.”
Another story is found in Qād. ī ‘Iyād. ’s book al-Ghunyah related by ‘Abd Allāh b. ‘Umar who said: “We were with al-A‘mash when he asked Abū H...anīfah about his judgement on certain legal issues. When Abū H...anīfah gave him his legal judgments, al-A‘mash asked: ‘Where did you get these answers from?’ Abū H...anīfah said: ‘From the h.adīth narrated by Ibrāhīm you have told me, and from the h.adīth narrated by al-Sha‘bī you have also told me.’ Al-A‘mash then said: ‘O Muslim jurists, you are the physicians and we [the traditionists] are the druggists.
These two stories indicate the prominence of the Muslim jurists over the traditionists. The h.adīths in solving legal issues are like medicines in curing diseases. The use of medicine without the physician’s prescription could be dangerous. A h.adīth without a jurist could lead us astray.
Knowing the different kinds of medicine does not make you a physician, and knowing many h.adīths does not make you a jurist. You could kill a patient if you are not a physician, and you could make h.alāl (something permissible) h.arām (prohibited) and vice-versa. Let us have a moral lesson from the following German story:
A medical student was having an oral-examination. His professor asked him the symptoms of a certain disease and the medicine to cure it. The student answered correctly. But when he was asked the amount of medicine he should give to the patient he said “one tea-spoon”. On his way out of the room he remembered that he was giving a wrong answer. He came back and said to the professor: “Professor, the patient should be given three drops of the medicine instead of one-tea-spoon.” The professor said: ‘Es tut mir leid, der Patient ist schon gestorben” (I am sorry, the parent has passed away). The student failed. Had he been a physician he could have killed his first patient.
Many commercial advertisements of TV mislead people. For example, it was said that such-and-such medicine is stronger than the others. But this does not necessarily mean that it is better than the others, because it is stronger. On the contrary, it could be worse if your body cannot tolerate it. Physicians know this trick. That is why we consult them. If you want to kill a mouse, for example, a small stone could be sufficient. You do not have to use a bomb or dynamite, which is much stronger than a piece of stone.
In one tradition the Prophet said that having a bath on Friday is wājib (obligatory), but the jurists say it is recommended strongly as if it were obligatory. They interpret وَاجِب (obligatory) as كََالْوَاجِب (like obligatory), something necessary. So, if you have not taken your bath this week, it is time now to have it, because you will go to the mosque for the Friday prayer and mingle with people and we do not want people to be disturbed with your odour.
According to the Arabic language, the expression wājib could mean “highly recommended”, while h.arām could mean “strongly disproved”. The late Sayyid Darwīsh in his song said:
زُوْرُوْنِيْ كُلَّ سَنةٍ مَرَّةً * حَرَامٌ تَنْسُوْنِي بِاْلمَرَّةِ
which means “visit me once each year, it is h.arām to forget me completely.”
A traditionist (a h.adīth collector) is like a food supplier, and the faqīh (a jurist) is like a cook. He cooks the traditions supplied by the traditionist and makes his legal judgement out of them. He knows the tradition in which the Prophet prohibited people from drinking while standing, and in the meantime he knows also that it happened that the Prophet himself drank while he was standing.
Dr. Muhammad ‘Abd al-Karīm al-Jazā’irī said that there are some h.adīths which are temporary and deal with a particular time, such as the h.adīth narrated by ‘Abd Allāh b. ‘Umar that the Prophet said:
خَالِفُوا الْمُشْرِكِينَ وَفِّرُوا اللِّحَى وَأَحْفُوا الشَّوَارِبَ
(رواه البخاري ومسلم)
“Do not imitate the idolaters, let your beard
grow and clip your moustaches.” 33
In his commentary on this h.adīth ‘Abd al-Wahhāb Khallāf (d. 1375/1955), the former professor of Islamic Law at the Faculty of Law, Cairo University, in his article “Mas.ādir al-Tashrī‘ al-Islāmī Marinah” at Majallat al-Qānūn wa ’l-Iqtiād (May, 1945), as follows: “The construction of the text itself indicates that this h.adīth is about temporal law when the dress of idolaters was respected, the intention of which is to be different from them, while people’s dress changes continually.” However, many Muslim scholars consider that growing beards and clipping moustaches remains obligatory or highly recommended for Muslim males till the Judgment day, and Muslims should tolerate this difference of opinion.
Another temporal h.adīth is narrated by Ya‘lā b. Shaddād that the Prophet said:
خَالِفُوا الْيَهُودَ فَإِنَّهُمْ لَا يُصَلُّونَ فِي نِعَالِهِمْ وَلَا خِفَافِهِمْ
(رواه الحاكم و البيهقي وأبو داءود ).
“Do not imitate the Jews, they pray with
their shoes and slippers off.” 34
This tradition indicates that Muslims are enjoined to pray with their footwear on if they are clean. The reason is clear, to be different from the Jews in their prayers, even though the Jews were following Prophet Moses (p.b.u.h.) in taking off his shoes. Allah says in the Qur’ān:
إِنِّي أَنَا رَبُّكَ فَاخْلَعْ نَعْلَيْكَ إِنَّكَ بِالْوَادِ الْمُقَدَّسِ طُوًى (طه : ١٢).
“Verily I am your Lord! Therefore put off thy shoes:
thou art in the sacred valley of Tuwa.” 35
In another h.adīth Abū Sa’īd al-Khud.arī said:
صَلَّى بِنَا رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ ذَاتَ يَوْمٍ فَلَمَّا كَانَ فِي بَعْضِ صَلَاتِهِ
خَلَعَ نَعْلَيْهِ فَوَضَعَهُمَا عَنْ يَسَارِهِ فَلَمَّا رَأَى النَّاسُ ذَلِكَ خَلَعُوا نِعَالَهُمْ فَلَمَّا قَضَى صَلَاتَهُ
قَالَ مَا بَالُكُمْ أَلْقَيْتُمْ نِعَالَكُمْ قَالُوا رَأَيْنَاكَ أَلْقَيْتَ نَعْلَيْكَ فَأَلْقَيْنَا نِعَالَنَا فَقَالَ رَسُولُ
اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِنَّ جِبْرِيلَ أَتَانِي فَأَخْبَرَنِي أَنَّ فِيهِمَا قَذَرًا أَوْ قَالَ أَذًى
فَأَلْقَيْتُهُمَا فَإِذَا جَاءَ أَحَدُكُمْ إِلَى الْمَسْجِدِ فَلْيَنْظُرْ فِي نَعْلَيْهِ فَإِنْ رَأَى فِيهِمَا
قَذَرًا أَوْ قَالَ أَذًى فَلْيَمْسَحْهُمَا وَلْيُصَلِّ فِيهِمَا
(رواه أحمد وأبو داءود والبيهقي وابن حزيمة وابن حبان)
“While the Prophet was praying with us he took off
his shoes and put them on his left side. Seeing that, people
also took off their shoes. After the prayer the Prophet asked:
‘Why did you take off your shoes?’ They said: ‘We saw you
taking off you shoes.’ The Prophet said: ‘Gabriel came to me
and told me that my shoes were dirty, so I took them off.
Therefore, if any of you come to the mosque, he has
to look at his shoes. If they are dirty he should
wipe them and pray with them on.’” 36
The jurists did not stop here and stick to this h.adīth without further study and say that wearing shoes is obligatory in prayer, in order to be different from the Jews who prayed barefoot. The Prophet himself sometimes prayed barefoot and sometimes with his shoes on. He used to put them on his left side. Narrated by Abū Hurayrah the Propet said:
إِذَا صَلَّى أَحَدُكُمْ فَلَا يَضَعْ نَعْلَيْهِ عَنْ يَمِينِهِ وَلَا عَنْ يَسَارِهِ
فَتَكُونَ عَنْ يَمِينِ غَيْرِهِ إِلَّا أَنْ لَا يَكُونَ عَنْ يَسَارِهِ أَحَدٌ وَلْيَضَعْهُمَا بَيْنَ رِجْلَيْهِ
(رواه أبو داءود والبيهقي والحاكم وابن حبان وابن حزيمة).
“If anyone of you prays he should put his shoes
neither on his right nor on his left; otherwise [if he puts
them on his left]they will be on somebody else’s right,
except if nobody is on his left.Therefore,
he should put them between his legs.” 37
The above h.adīth is supported by the following h.adīth, narrated by Abū Hurayrah, that the Prophet said:
إِذَا صَلَّى أَحَدُكُمْ فَلْيَلْبِسْ نَعْلَيْهِ ،
أَوْ لِيَخْلَعَهُمَا بَيْنَ رِجْلَيْهِ، وَلَا يُؤْذِيْ بِهِمَا غَيْرَهُ
(رواه الحاكم و إبن حبان و إبن حزيمة).
“If any of you prays he should put his shoes on,
or take them off and put them between his
legs so that not to disturb others” 38
These temporal h.adīths are for the Muslims’ benefit as individuals as well members of the community. When the reason for the ruling does not exist any longer the ruling also does not exist. This kind of traditions deal with mu‘āmalāt (behaviour towards others) and ethics only, and not with īmān (faith) and ‘ibādāt (worship). Therefore, the rulings of these temporal h.adīths do not always apply permanently. They have, according to Ibn al-Qayyim al-Jawziyyah’s term, tashrī‘ ‘ām (general ruling).

Footnotes:

32. Reported by al-Tabrānī and al-Bayhaqī
33. Reported by Bukhari and Muslim
34. Reported by al-Hākim, al-Bayh.aqī and Abū Dāwūd
35. Qur’ān, T.āhā, [20]:12
36. Reported by Ahmad, Abū Dāwūd, al-Bayhaqī, Ibn H.uzaymah and Ibn H.ibbān
37. Reported by Abū Dāwūd, al-Bayhaqī, al-H.ākim, Ibn Hibbān, and Ibn H.uzaymah
38. Reported by al-H.ākim, Ibn H.ibbān, and Ibn H.uzaymah