Understanding Minority Fiqh [2] Respecting Differences: al-’Allamah Sh. Bin Bayyah


By Dr. Bin Bayyah [may Allah preserve him] | Translated by Suhaib Webb

Taken from sunat al-fatwa wa fiqh al-Aqaliyat

One of the important legal axioms related to the axiom of ‘ease’ is:

‘If there are [scholarly] differences surrounding issues of contention, or issues involving independent judgement [ijtihad]; in the absence of a scholarly rebuke, such differences are excused.’

Ibn al-Qayyim said, ‘If there is no sunna, or unanimity, on an issue, and independent judgement is possible, then one should not be reprimanded for acting on such an issue whether layman or scholar.’ ‘ilam al-Muwaq’in ‘an rabi al-’Alamin 3/365

al-’Iz bin ‘Abdul al-Salam said, ‘If someone comes with something whose forbiddance is disputed, if he believes it to be permissible [and he qualifies for ijtihad or his a muqalid of one qualified for it], the he should not be reprimanded for acting on it unless his case is weak.’

Imam al-Harmain wrote, ‘Furthermore, it is not allowed for a mujtahid to rebuke [by force] another mujtahid since every mujtahid is correct, regarding secondary issues, according to us [the Shaf'i school]

The Scholars and Differences:

Hisham bin ‘Ubaydullah said, ‘One who is not familiar with the differences of the scholars of fiqh is not a faqih.’

Qatada said, ‘One who has not familiarity with the differences of the scholars has never smelled [the fragrance] of fiqh.’

‘Ala said, ‘It is not acceptable for one to give legal verdicts until he is well versed with the differences of the scholars.’

Giving the Easier Opinion

al-Zarkhashi wrote in al-Bahr al-Muhit:

‘Taking the easier opinion could be related to  different fiqh schools madhahib or to different possibilities [legal outcomes]. Those who follow this opinion base it on [the verses] ‘Allah wants ease for you.’ and ‘He placed no hardship in the faith.’ and [the hadith] ‘I was sent with the religion of ease and compassion.’ After discussing the different opinions surrounding this al-Zarkhashi wrote that the goal is to remove hardship and harm thus the opinion based on ease is correct.’ al-bahr al-muhit 4/34

al-Muzi wrote: ‘Fom the principles of the law is that one guides others with what is easier when there is a difference between the two.’

Shawkani wrote: ‘Taking the difficult opinion is not something desired. On the contrary, taking the easier opinion [is what agrees] with the objectives of Shariah.’

The leeway afforded to scholars in choosing the easier opinion when presented with a host of possibilities is one of the outcomes related to the principle of ‘ease’ it affords the jurist the right to address the difficulties of his community and provide them with a healthy religious expression within the confines of their societies.

Part 3: What is the difference between ease and negligence?

 

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