Al-Insaf fi bayan sabab al-ikhtilaf a rational explanation of difference of opinion (in Fiqh)
Shah Waliullah Muhaddith Al-Dihlawi (rahi’mahullah)
In the name of Allah the most gracious and merciful

Praise be to Allah who sent our master Muhammad (صلى الله عايه وسالم) to mankind to guide them towards Allah with His permission and as a luminous lamp. Then He inspired the Companions, the Followers and the diligent (mujtahidin) jurists to preserve together the essence of their Prophet's (teachings) until the world is called to an end. This is to complete His favour. He has the power over every thing. I bear witness that there is no god but Allah alone and He has no partner. I (also) bear witness that our master Muhammad is His servant and Messenger after whom there is no Prophet (to come), may Allah bless him, his progeny and the Companions altogether.

To proceed: says the one in need of the mercy of Allah the Kind-Wali Allah b. 'Abd al-Rahim, may Allah al-Mighty complete His favours on both of them here and in the world hereafter: "Once Allah al-Mighty inspired my heart to a mizan (scale) which explained to me the cause of every disagreement that happened among the followers (milla) of Muhammad (صلى الله عايه وسالم). With (the help of) this (scale) I can recognise what is right in the sight of Allah and in the sight of His Messenger. It (also) enabled me to explain the cause of disagreements so plainly that there remains no doubt and ambiguity.

The reasons for difference of opinion amongst the Companions and Followers over the furu’

Behold that Fiqh in the noble time of the Messenger of Allah (صلى الله عايه وسالم), was not recorded. Neither was the search for laws in those days like the search of these Fuqaha'. (This is) because they take pain in establishing the basic principles (al-shurut), conditions (al-shurut) and the rules of conduct (adab) of everything (so that it could) be distinguished from each other on the basis of its evidence. They hypothesise conditions and then on the basis of those hypothetical conditions, they argue. They define what accepts definition and confine what yields to confinement. These and other things of this kind are of their (own) making.

As for the Messenger of Allah (صلى الله عايه وسالم), he used to do wudu (ablution) while the Companions would see him. They would then copy him without being explained by him that this is a rukn and that is an adab. And when he (صلى الله عايه وسالم) used to pray they would see him and pray as they had seen him praying. (Similarly) when he performed hajj, people saw him and did as they saw him doing.

This was his (صلى الله عايه وسالم)'s general practice. He did not explain that obligations (furud) of wudu were six or four. Neither did he prescribe that if a man performs wudu without observing muwalat (continuity) judgement would be made on the validity or invalidity of his wudu. On some occasions, however, he used to explain such things.

The Companions rarely asked him about such things. It is reported on the authority of 'Abd Allah b. 'Abbas (رضئ الله عنه d.68/687), as saying: "I have never seen a people better than the Companions of the Messenger of Allah (صلى الله عايه وسالم). They did not ask him (about anything) until he passed away except for thirteen questions, all of which are (mentioned) in the Qur'an. These include, "They ask you about the fighting in the sacred month, say fighting in it is a serious (offence)'', and "They ask you about menstruation'. He added: "They used to ask questions only about those things which were beneficial for them."

'Abd Allah b.'Umar (رضئ الله عنه d.73/692) said: "Don't ask about that which did not happen, because I heard 'Umar ibn al-Khattab (رضئ الله عنه d.23/643) cursing the one who asks questions about that which did not happen". AI-Qasim (b. Muhammad b. Abu Bakr al-Siddique) said: "Indeed you ask about (such) things, which we didn't use to ask. You delve into things, which we didn't use to delve in and you ask about things I don't know what they are. Had we known them it wouldn't have been permissible for us to hide them".

It is reported on the authority of 'Umar b. Ishaq as saying: "Certainly the Companions of the Messenger of Allah (صلى الله عايه وسالم) I met were more than those I missed. (But) I never came across a people who were more lenient in their attitude and less strict than them".

It is reported on the authority of 'Ubada b. Busr al-Kindi, who was asked about a woman who died with a people and did not have a legal guardian (wali). (In response) he said: "I have met people who were not as much strict as you are, and who did not use to ask questions like yours". These traditions are related by al-Darimi (d.255/868).

(It was the practice of the Prophet (صلى الله عايه وسالم, that when) people consulted him over the events (waqa’i) he would advise them and pronounce the judgement on cases referred to him. When he would see people doing something good he would commend it and disapprove it if it was a reprehensible action (munkar). Whatever legal opinion he gave to an advice seeker, or a judgement he made in a case, or disapproval he showed of a person (for his reprehensible action), it (all) happened in public gatherings.

Similarly, the Shaykhain Abu Bakr (d.13/634) and 'Umar (رضئ الله عنه), when they didn't have the knowledge of an issue, they would ask the people about the Hadith of the Messenger of Allah (SAAS). (Once) Abu Bakr (رضئ الله عنه), said: "I did not hear the Messenger of Allah (صلى الله عايه وسالم) saying something about her, i.e. the grandmother's (share in inheritance)". So he asked the people (if they had heard something from him in this respect). After performing the Zuhr prayer he said: "Which one of you has heard the Messenger of Allah (SAAs) saying something about (the share of) grandmother?" Mughira b. Shu'ba (d.50/670) said: "I". Abu Bakr asked him: "What did he say?" Mughira replied: "The Messenger of Allah (صلى الله عايه وسالم) gave her one sixth (of the inheritance)". Then Abu Bakr asked him: "Does anyone else know that?" Muhammad b. Maslamah (d.43/663) said: "He is right”. So Abu Bakr gave her one sixth.

(Or take for example) the story concerning 'Umar's consultation with the people over the ghurra and then his retraction to the report (narrated) by Mughira. Also his consultation with the people over the epidemic (waba) and then his retraction to the report (narrated) by 'Abd al-Rahman b. Awf Similary his retraction to the report (narrated) by 'Abd al-Rahman b.'Awf with regard to the story of Magian (Majus). (Another example is) the delight of 'Abd Allah b. Mas'ud (d.32/651) over the report (narrated) by Ma'qil b. Yasar when it conformed to his view. (Or for instance) the report concerning the return of Abu Musa (al-Ash'ari d.42/662) from 'Umar's door, then 'Umar's inquiry about the Hadith, and Abu Sa'id's (al-Khudri's d.74/693) testimony in his (Abu Musa's) support. These kinds of instances are numerous, well known and reported in the two authentic (books of Bukhari and Muslim) and (other books of) Sunan.

In general this was his (صلى الله عايه وسالم)'s noble practice. Every Companion noticed what Allah facilitated him of his (SAAS) Worship, legal advices (fatawa) and judicial rulings. And so he remembered it, comprehended it and became familiar with the position of everything through circumstantial evidences (qara 'in) attached to it. The Companions interpreted some of these (practices) in the sense of permissibility (ibaha), some in the sense of desirability (istihbab) and some in the sense of abrogation (naskh) in view of the signs and circumstantial evidences that were sufficient in their opinion (to make such a judgement). The only criterion for them was the feeling of satisfaction and gratification without considering the methods of reasoning. This is just as you see the bedouins understand the purpose of conversation among themselves, and by clear (expression), gesture and indication their hearts are so much delighted that they do not realise (it).

And thus his noble time passed away but they remained on that (same pattern). Then they dispersed in towns and every one of them became a leader of an area. There appeared many events (waqa "i), and (jurisprudential) cases (masa "il) became subject of discussion. Therefore they were consulted for advice on these (matters) to which each one of them responded according to what he has remembered or inferred. And if he did not find in what he has remembered or inferred to suit the answer, he would exercise iitihad on the basis of his personal opinion. This is how he recognised the 'illa (reason) upon which the Messenger of Allah (صلى الله عايه وسالم) based the law in his clear injunctions (mansusat). In such circumstances the Companions would search for the law wherever they (could) find it sparing no efforts (in their bid) to conform to the purpose of the Prophet (صلى الله عايه وسالم) (concerning that rule). It was at this point that a variety of differences occurred among them.

Among these (was the one) that one Companion (might have) heard a ruling or fatwa and the other didn't hear it. So the (latter) exercised ijtihad (on the basis of his personal opinion) in that (matter).

This happened in a number of ways; one of them was that his ijtihad conformed to Hadith. An example of this is what has been narrated by aI-Nasai' (d.302/914) and others. Accordingly, 'Abd Allah b. Mas'ud was asked about a woman whose husband had died and did not fix her mahr. He said: "I didn't see the Messenger of Allah (صلى الله عايه وسالم) giving judgement over this matter". The people, however, kept on coming to him for a month and urged (him to find the answer). Consequently he exercised his ijtihad on the basis of his personal opinion. He ruled that her mahr would be (equal to) that of women like her without any reduction or addition, and that she has to observe ‘iddah and was entitled to inheritance. There stood up Ma'qil b. Yasar testifying that the Prophet (صلى الله عايه وسالم) gave similar ruling about one of their women. Ibn Mas'ud was so much delighted that he had never experienced such a delight ever since (embracing) Islam.

The second (type of differences among the Companions) was that the debate (munazara) took place between the two (Companions). (As a result) the Hadith emerged in such a way that in strong probability (ghalib al-zann) it seemed acceptable. Consequently one of them would withdraw his ijtihad in favour of the narrated (Hadith).

An example of this is what the Imams have narrated of Abu Huraira (رضئ الله عنه d.59/678). Accordingly, he was of the opinion that if someone gets up in the morning in the state of ritual impurity (junub), his fast would not be valid. He held this view until he was told by some of the wives of the Prophet (صلى الله عايه وسالم) contrary to what he believed, and so he withdrew (his opinion).

Thirdly, the Hadith reached him but not in the way that in strong probability it seems acceptable, and so he would not abandon his ijtihad. Rather, he would question (the authenticity of') Hadith. An example of this is what Ashab al-Usul have reported of Fatima bint Qays. She testified before 'Umar ibn al-Khattab that she was triple divorcee, but the Messenger of Allah (صلى الله عايه وسالم) granted her neither (the right of) maintenance nor residence. ('Umar) rejected her testimony saying: "I will not abandon the Book of Allah on (the basis of) a woman's statement (whom) we don't know whether she has spoken the truth or lied. She (the divorcee) has the right to maintenance and residence." 'A'isha (رضئ الله عنها d.58/677) told Fatima: "Don't you fear Allah, i.e. in (your) statement (that the divorcee is) entitled to neither maintenance nor residence".

Another example (of this type of difference) is the report by Shaikhain (Bukhari and Muslim). Accordingly, 'Umar ibn al-Khattab was of the opinion that for a (ritually) impure person who does not find water, tayammum (substitute to ablution) does not suffice. In response 'Ammar told him that (once) he was travelling with the Messenger of Allah (صلى الله عايه وسالم) that he became ritually impure and did not find the water, so he rubbed the dust all over his body. He then mentioned this to the Messenger of Allah (صلى الله عايه وسالم). The Messenger of Allah (صلى الله عايه وسالم) said that it would have sufficed him to have done like this, tapping the ground with his hands and then rubbing with them his face and hands (arms). 'Umar, however, did not accept (the Hadith), because the evidence in his opinion could not be substantiated because of a bidden defect he found therein. (This view remained prevalent) until the Hadith became widespread in the second generation through many lines of transmission (turuq) and the defect (in the meantime) vanished. And so the Hadith was (consequently) accepted.

Fourthly, the Hadith did not reach him at all. An example of this is what (Imam) Muslim (d.282/895) has reported that ('Abd Allah) b. 'Umar used to ask women to untangle their hairs when they bathe. When 'A'isha (رضئ الله عنها) heard that, she said: "How strange it is of Ibn 'Umar to ask women to untangle their hairs. Why doesn't he ask them to shave their heads? Indeed I and the Messenger of Allah (صلى الله عايه وسالم) used to bathe with one vessel, which I would not pour it out over my head more than three times".

Another example (of such differences) is what has been mentioned by (Muhammad b. Muslim al-Shihab) al-Zuhri (d.124/741). Accordingly, Hind had not known the concession (rukhsa) (given) by the Messenger of Allah (صلى الله عايه وسالم) to the menstruating (mustahada). Therefore she used to cry for not praying (during the period of her menstruation).

Among those kinds (of differences was also the one) that they saw the Messenger of Allah (صلى الله عايه وسالم) doing something, but then some of them interpreted it in the sense of nearness (qurba) and some in the sense of permissibility (ibaha). An example of this is what has been reported by Ashab al-Usul in respect of the question of al-tahsib-i.e. stopover at al-abtah (valley) during al-nafar. The Messenger of Allah (صلى الله عايه وسالم) stopped there. Abu Huraira and Ibn 'Umar construed this (stopover) in the sense of nearness and treated it as Sunnah of hajj, while 'A'isha and Ibn 'Abbas considered this (stopover) a (mere) coincidence and not a Sunnah.

Another example (of this phenomenon) is the majority view that ramal in tawaf (circumambulation of the Ka'ba) is Sunnah. Ibn "Abbas, however, believed that it was done by the Prophet (صلى الله عايه وسالم) as a coincidence in response to an incident. And that was the (taunting) remarks by the polytheists that the fever of Yathrib (Madina) had weakened the Muslims. (Therefore in his opinion ramal was) not a Sunnah.

Among these (kinds of differences) was (also) the difference of assumption (al-wahm) in interpretation. For example, the Messenger of Allah (صلى الله عايه وسالم) performed hajj and was seen by (many) people. Some of them thought that he was Mutamatti', some considered him Quarin, others thought he was Mufrid.

Another example (of this kind is the one) reported by Abu Dawud (aI-Sijistani d.275/910) on the authority of Sa'id b. Jubair (d.95/713). He said: "I told 'Abd Allah b. 'Abbas that I was astonished at the (degree) of disagreement among the Companions of the Messenger of Allah (صلى الله عايه وسالم) over the ihlal of the Messenger of Allah (صلى الله عايه وسالم) when he put on ihram for hajj and performed the necessary acts of ihram". In response,' Abd Allah b.'Abbas said: "I know better about that. Truly it was the only pilgrimage of the Messenger of Allah (صلى الله عايه وسالم) and from there arose disagreement among them".

The Messenger of Allah (صلى الله عايه وسالم) set out for hajj. After performing the two rak'at prayer in Dh'ul-Hulaifa Mosque he put on ihram in the same place and uttered talbiyah for hajj. After completing his two rak'at prayer, many people heard him saying that and remembered it. Then he embarked upon his journey and when his she-camel lifted him up he uttered talbiyah, and many people saw that. This is because people were coming (to him) in groups and so they heard him uttering talbiyah when his she-camel lifted him up, hence they said: "Surely the Messenger of Allah (صلى الله عايه وسالم) uttered talbiyah when his she-camel lifted him up". Then he continued his journey. When he ascended the top of the steep he uttered talbiyah and many people noticed that. So they said: "Indeed he uttered talbiyah only when he ascended the top of the steep". By Allah indeed he put on ihram and performed the necessary acts of ihram at his musallah and uttered talbiyah when his she-camel lifted him up, and he uttered talbiyah when he ascended the top of the steep".

These (differences also) took place because of the difference of inattentiveness and forgetfulness. An example of this is the report that Ibn 'Umar used to say: "The Messenger of Allah (صلى الله عايه وسالم) performed 'umra in Rajab". When 'A'isha heard this, she ruled inattentiveness on his part.

These (differences also include) the difference of accurate understanding and retention (dabt). An example of this is what Ibn "Umar or 'Umar reported from the Prophet (صلى الله عايه وسالم) that the dead person is chastised because of the wailing of his family over him. "A'isha ruled that he did not perceive the Hadith in its context. "(Once) the Messenger of Allah (صلى الله عايه وسالم) was passing by (the grave of) a Jewess that he found her family wailing over her. There he said: "'They are wailing for her while she is being chastised in her grave". Hence he (Ibn 'Umar or 'Umar) considered chastisement a cause of bewailing and thought the rule was generally applicable to every dead person.

Among (these kinds of differences) was (also) their disagreement over (the interpretation of) tbc cause of rule. An example of this is the (observance of) standing for funeral (procession). Some said this was to show respect for angles and therefore would include believer and non-believer alike. Others said it was because of the horror of death and would therefore include both of them. Hasan b. 'All (رضئ الله عنه d. 50/669), however, said: "(Once) a funeral procession of a Jew was passing by the Messenger of Allah (صلى الله عايه وسالم) that he stood up out of his dislike lest it pass over his head". Hence (this rule) specifically applies to non-believer.

These (differences also) include their disagreement over reconciliation between the two contradictory (or inconsistent) Ahadith (al-jam' bayn al-mukhtalifain). For example, the Messenger of Allah (صلى الله عايه وسالم) allowed mut 'a (temporary marriage) during the year of (the conquest of) Khaybar. He allowed it (again) in the year of awtas, and then he prohibited it. 'Abd Allah b. 'Abbas said: "The permission was (given) out of necessity and the prohibition (was made) in view of the cessation of necessity and (therefore) the law remains effective in that (final) form". The majority (of scholars), however, said: "The permission was (given) in the sense of permissibility and prohibition (was made) for its abrogation".

(Here is) another example (of this phenomenon). The Messenger of Allah (صلى الله عايه وسالم) prohibited from facing the qiblah (Ka 'ba) during istinja. A group of people believed in the generality (umum) of this rule, and that it was not abrogated. One year before he (صلى الله عايه وسالم) passed away, Jabir (رضئ الله عنه) saw him facing the qibla while urinating so he thought it an abrogation of previous prohibition. And (once) Ibn 'Umar (رضئ الله عنه) saw him (صلى الله عايه وسالم) answering the call of nature while be was backing towards the qibla and facing to Syria, therefore, he rejected their (above-mentioned) view.

A group (of scholars), however, reconciled between the two reports. Al- Sha'bi and others thought the prohibition was (specifically) related to the desert and that in lavatories there was no harm in facing and backing to (Ka 'ba). Another group believed the statement (of the Prophet (صلى الله عايه وسالم) was general and definite ('am muhkam) and that the action (of the Prophet (صلى الله عايه وسالم) has the likelihood of being specific to the Prophet (صلى الله عايه وسالم) and therefore does not stand to be either abrogator or a specific matter (mukhassas).

In general the views (madhahib) of the Companions of the Prophet (صلى الله عايه وسالم) became divergent and so the Followers learned from them whatever it was possible for them. As a result they remembered and comprehended whatever they heard of the Hadith of the Messenger of Allah (صلى الله عايه وسالم) and the views of the Companions. They reconciled between al-mukhtalifat (contradictory or inconsistent Ahadith) as much as it was possible for them. They also gave preference to some of the views (of the Companions) over others. Some of these views became less significant in their opinion even though they were reported on the authority of great Companions such as the reported view of Ibn 'Umar and Ibn Mas'ud about (the validity of) tayammum for (ritually) impure person. This view became weak when the Ahadith transmitted by 'Ammar, 'Imran b. Husain (d.52/672) and others gained widespread currency.

By that time every scholar among the Followers had (developed) his own madhhab. Consequently in every town an Imam was appointed. For example in Madina Sa'id b. al-Musayyab (d.93AH/711AD) and Salim b.'Abd Allah b.'Umar who were succeeded by al-Zuhri, Qadi Yahya b. Sa'id and Rabi'a b. Abu 'Abd al-Rahman (d.136AH/753AD); in Makkah 'Ata b. Abi Rabah , (d.114AH/732AD), in Kufa Ibrahim al-Nakh'i (d.95AH/713AD) and , al-Sha’bi ('Amir b. Shrahil d.103AH/721AD); in Basra Hasan al-Basri (d.110AH/728AD); in Yemen Ta'us b. Kaysan and in Syria Makhul (al-Shami d.l18AH/736AD). Allah made people's hearts , thirsty of their knowledge and they craved for it. From these scholars people learned Ahadith, fatawa and the views of the Companions, as well as the madhahib and investigations (developed) by these scholars themselves.

People used to consult them for advice on legal matters and (thus) discussion on (such) issues became rotating among them. (As a result) disputes were referred to them (for solutions). Sa'id b. al musayyab, Ibrahim al-Nakh'i and people like them had collected the , entire sections of Fiqh. In every field of Fiqh they had principles, which they had acquired from the predecessors.

Sa'id and his companions were of the opinion that the people of Haramayn were the most reliable in Fiqh. The basis of their madhhab were the fatawa of 'Umar and 'Uthman (رضئ الله عنه), and their legal decisions, and the fatawa of 'Abd Allah b. 'Umar, 'A'isha and lbn Abbas (رضئ الله عنه), and the legal decisions of the judges of Madina.

Out of all that they collected whatever Allah facilitated them. They examined it with a view of consideration and scrutiny. Of this whatever was agreed upon among the scholars of Madina they would adhere to it firmly, and on whatever there was disagreement among them they would accept (that view which was) the strongest and the most preferable. (The strength and preference of a view depended on the fact) that either because this was the opinion of the majority or because it was in concordance with a strong analogy or clear deduction of the Book (of Allah) and the Sunnah (of the Prophet (صلى الله عايه وسالم) and so on. And if they did not find the answer to the question in what they had collected from them (the 'ulama' of Madina), then they would deduce from their (salaf's) statement and search for the signs (al-ima) and alluded meanings (al-iqtida) (in the text). Thus they developed a collection of many masa 'il in every field (of Fiqh).

Ibrahim (al-Nakh'i) and his companions were of the opinion that 'Abd Allah b. Mas'ud (رضئ الله عنه) and his companions were the most reliable in Fiqh. This is just as 'Alqama said to Masruq (b. 'Abd al-Rahman al-Ajda' al-Hamdani d.62AH/681AD): "Is there anyone among the Companions more reliable (in Fiqh) than 'Abd Allah (b. Mas'ud)?" And Abu Hanifa (رضئ الله عنه)'s (d. 150AH/767AD) remarks to al-Auza'i ('Abd al-Rahman d.157AH/773AD): "Ibrahim is more knowledgeable than Salim (b.'Abd Allah b. 'Umar). If it were not for the excellence of Companionship, I would have said that 'Alqama is more knowledgeable than 'Abd Allah b.'Umar". And 'Abd Allah (ibn 'Umar) is (too well known).

Ibrahim's school of thought is based on the fatawa of 'Abd Allah b. Mas'ud and the legal decisions of 'Ali (b. Abi Talib رضئ الله عنه) (d.40AH/660AD), and the decisions of Shuraih and other judges of Kufa. From all this he collected what Allah facilitated him and then he treated their traditions (dthdr) just as the people of Madina treated the traditions of their (scholars). Then he deduced the way they deduced, and this is how he developed a collection of many masa 'il in every field of Fiqh.

Sa'id b. al-Musayyab was the spokesman of the jurists of Madina. He was the best of them at remembering the legal decisions of 'Umar and the Ahadith (reported) by Abu Huraira (رضئ الله عنه). On the other hand, lbrahim was the spokesman of the jurists of Kufa. Whenever they both spoke about something and did not attribute it to anyone, it was mostly (understood to be) attributed to one of the ancestors either expressly or by way of indication and other things like that. Then the jurists of their respective cities would agree on it, adhere to both of them, comprehend it and make deduction on the basis of it, and Allah knows best.

Difference of Opinion in Fiqh - Shah Waliullah Muhaddith al-Dihlawi (rahi'mahullah) 1114-1176 AH/ 1702-1762 Translated By Dr.Muhammad Abdul Wahhab