On Jurist Composition: Sheikh Ali Gum`a -- Part II
Now that spring break has started, and I have a short reprieve from teaching responsibilities, I'd like too catch up on some promied postings. Here is a second installment from Dr. Ali Gum`a's book of fatawa (see part I for full reference). Following a discussion of the juristic ruling that lack of virginity at marriage is not a valid foundation for anullment, as an illustration of the juristic mindset, he proceeded to say (starting page 232):
The questioner might ask: would that still apply even if he made it a condition that she must be a virgin?
We reply: Yes, even if he stipulated that condition, and that is the reported opinion of `A'isha (r) and Sufyan Al-Thawri. It is also one of two reported opinions of Ahmad, Al-Shafi`i, Abu Hanifa and the early jurists.
Here is a historical illustration:
Nafi` reported on the authority of ibn `Umar (r) that Abu Bakr (r) was in the masjid, when a man shocked him with obscene language. Abu Bakr asked `Umar (r) to look into the matter. The man said thhat he had hosted a guest, who slept with his daughter. At this point, `Umar punched the man in his chest, and cursed him for not protecting his daughter's reputation. Then, Abu Bakr ordered both of them to be lashed, and then they got married.
See then how the honorable companions (r) understeood "In the Name of Allah, the Most Merciful, the Most Beneficient", thus understanding God's infinite mercy, opening the gates of Shari`a to those who repent, rather than shutting those doors for people.
Thus, it is the jurist's thought process that is capable of distinguishing between one phrasing/understanding (التصوير) of the juristic question and another. The difference may appear minor to the questioner, but it may change the ruling.
For instance, if we obtain some fresh milk and ask someone: "what is this", he would say: "this is milk". However, if we add some dust to the milk and ask, he would tell us that it is mud. Thus: there is a difference between fres milk and milk mixed with a pure substance (dry dirt). Thus, we must train ourselves [to obtain the optimal] understanding of the juristic problem.
The first stage of juristic thought, thus, is understanding the question that is posed to the jurist. The second stage is determining exactly what happened.
For instance, a man may report that he told his wife: "you are divorced", and then during his narration of details, he says: "So, whhen I told her that I swear to divorce", the jurist must ask him: "what exactly did you say to her -- that she is divorced, or that you swear divorce?". ...[continued example, with various phrasings of what the questioner might have actually said and what he reported]
Thus, understanding the question fully is important for reaching a juristic ruling, and that is not possible without the juristic mentality's demarcation between different phrasings of the question. Understanding this issue can improve the relationship between the questioner and the mufti, or the questioner and the scholarly jurist. However, we must recognize that this is a very difficult problem.
It is for this reason that people complain that scholars differ in opinion, this giving one answer, and the other gving another. In this regard, we must recognize that this difference in opinion is a form of mercy for people, and should not lead to division. Instead, we should recognize that different jurists accept different opinions, and each has his proofs.
Thus, the jurist must fully understand the question and its objectives, and he must ask additional questions to reach such full understanding. The questioner must also undersand this process and not find it strange. The questioner must understand the process to ask proper questions, and to reach a deeper understanding of their own religion.
In this regard, the questoner should not himself do the juristic analysis and reach his conclusions, lest he would induce defects in his and other people's religion. For instance, you may understand how a surgery will be conducted, but you cannot perform the surgery if you are not a surgeon. You can understand how to build a struture, but would not dare to do so if you are not an engineer or contractor. Likewise is jurisprudence as a profession. You cannot rule what is permissible or forbidden without being a specialist in issuing fatwa, since you are incapable of doing the job, and lack factors required for that job.
Thus, as we study jurisprudence (fiqh), we must know that we do not study it to become jurists, but rather to have the proper education and culture, and to protect ourselves from uncertainty and perplexity (at differences in juristic opinions).
The first mental criterion to be qualified as a jurist who may issue fatwa is the ability to distinguish between different ways of framing the juristic question. Let me give you an example:
Someone came to me and said: "I heard you once say that if a girl committed a sin and wished to repent to God irrevocably, then she should not tell her father, brother or mother. Is that what the Law (Shar`) ordered?".
I tell you what the Law ordered. The Law says that if a person committed any blameworthy action (munkaraN), and wished to repent, then he should repent to Allah, and protect his reputation (و أن يستر نفسه). This is what the Prophet (p) reported to us. Abu Qatada Al-Ansari reported that the Prophet (p) said: "All of my nation is forgiven, except for those who publicize [their faults]", he was asked who those were, and he said (p): "The ones who do something at night, and God covers their sins, then he tells people in the morning, thus pulling God's cover off his sins". This Hadith was also reported by Salam ibn `Abdullah also reported on the authority of Abu Hurayra.
This is what the Law says. Thus, we should distinguish in our questions between issues that relate to activities of accountable Muslims and other questions (which may pertain to Hadith, exegesis, good character, crede, etc.). The latter issues relate to teh Law, but do not relate directly to jurisprudence (fiqh) as a specialized discipline. Thus, we must understand that we cannot all be jurists. Jurisprudence requires an academic specialized training in all the sciences that feed into the science of jurisprudence. Thus, we cannot all be jurists, for God even ordered only a portion of Muslims to perform da`wah [calling to righteousness] [2:104].
Thus, we all agree that the sources of jurisprudence are Qur'an and Prophetic Sunna, and all jurists ahherre to them. However, it is very painful to find some young people hastily declaring Muslims as innovators. This is an extremely, extremely dangerous matter, which weakens the community in times of crisis. Indeed, we find today a condescending attitude by some factions of the community towards the community at large, as if there is an established and common innovation in Islam that has no basis in the religion. This is not the case. There have been many differences in opinion in the past, and none of the Imams ever accused others' views and practices as forbidden innovations(بدع).
All disagreements can be traced to one of two reasons. The first reason is the issue of Prophetic Traditions with weak chains of narration. A majority has agreed to accept such weak Traditions as possibly valid, whereas another faction have determined that they will never accept any ruling based on a weak Traditions.
So, my brother, if you decide not to accept rulings based on weak traditions, do not deny others the right to accept such rulings. It is a laughable matter when you read in their books statements about traditions such as: "rejected, and it is weak" (موضوع و هو ضعيف), which means that he has equated the two categories of rejected and weak Hadiths, which is extremely curious.
So, if you hold the opinion that you will not accept rulings based on weak Traditions, then don't, but let alone the ones who accept such rulings.
In fact, a weak Tradition is accepted as a basis for rulings on acts of righteousness, and it is accepted as long as it does not contravene any of the fundamentals of religion. Moreover, a weak tradition is deemed superior to reasoning by analogy for the Hanafis and other schools. A weak Tradition is generally deemed authoritative if there are no other Traditions on the same subject. There is a long history pertaining to weak Traditions, which were not rejected by Muslims. Even Imam Ahmad ibn Hanbal, who was strict in his reporting of Sunna, and who was the Imam of the followers of Sunna without match, even he reported weak Traditions in his Musnad. Similarly, Tirmidhi and Abu Dawud reported weak Traditions in their Sunan. Also, Al-Bukhari reported weak Traditions in his Al-Adab Al-Mufrad. Even though he made the foundation his SaHiH, in which he only reported valid Traditions with strong chains of narration, he did report weak traditions in his other book on Adab (character, proper behavior, etc.). The latter are such noble subjects, and for that reason scholars accept weak Traditions that urge people to act in such noble fashion.
The second issue that has led to disputation is rejection by some of differing interpretations. Thus, some people declare that there is only one way to understand a Tradition: "we understand this Tradition as such, and it is impossible to interpret it otherwise; and anyone who disagrees with me is wrong". This is an invalid approach, and this monopoly over unitary interpretation of Texts constitutes a superiority complex towards other Muslims.
It also leads to misunderstanding the Imams and their methodologies in dealing with religion and life, and in dealing with Muslims living in different locales: east and west.
We hope that Muslims will understand this clear methodology that our righteous forebears followed, and to which scholars continue to adhere. Thus, one must rule based on Qur'an and Sunna, and one must not stop at the level of particular juristic precedents (لا يقف عند المسائل). Instead, one must apply the general methodologies and epistemologies, as well as Legal objectives and accepted general rules. Finally, one must consider how best to reconcile life with religion. Nobody, no group and no school of thought or inclination can have a monopoly on this religion. It is the universal religion sent by the Lord of the Universe to all of his creation, until the final day.