(Part 27)
The Fifth Topic
The Third Speech: Disagreement in Legal (jurisprudential) Sources
Disagreement on the Authority of Certain Legal Sources
Differences in jurisprudential rulings also stem from disagreements over the validity of certain legal sources. Jurists have differed in their acceptance of sources such as mursal hadith, istihsan (juristic preference), maslahah mursalah (unrestricted public interest), the Shariah of previous nations, and ‘urf (custom).
The Quran, Sunnah, and consensus (ijma’) are universally accepted sources. Most jurists accept qiyas (analogy) as a valid source, though Zahiris, some Mu‘tazilites, and Ja‘faris reject it.
Many scholars have used istihsan and consider it a valid source of law, while others, like the Shafi‘is, reject it. Imam Shafi‘i is quoted as saying: “Istihsan is the indulgence of desire.”
Scholars agree that maslahah mursalah cannot be used in acts of worship, but they differ in its use in transactions. Shafi‘i and Hanafi jurists, despite being generally considered opponents of maslahah mursalah, have applied it in some cases. The Maliki and Hanbali schools accept it as a legal source.
Sadd al-dhara’i‘ (blocking the means to evil) is used to prohibit permissible acts that may lead to corruption. It has several categories:
- Where harm is rare.
- Where harm is frequent.
- Where misuse by the obligated person leads to harm.
There is disagreement regarding the second category. Hanbalis and Malikis prohibit such actions, while Shafi‘is and Zahiris do not.
Scholars also differ on the authority of the Companions’ opinions. If their opinion is based on non-ijtihadi knowledge, it is considered binding. If there is consensus among the Companions or no opposing view, it is binding. But if it stems from personal reasoning, scholars differ—some accept it as proof, others do not.
Regarding the Shariah of previous nations (Shar‘ man qablana), if a ruling is mentioned in the Quran or Sunnah without indication of its continuation or abrogation for Muslims, scholars differ. Some Hanafis accept its authority, while others reject it.
Istishab (presumption of continuity) does not establish a new ruling but is referred to when no specific evidence exists. According to Hanafis and their supporters, it is authoritative in negating new rulings (i.e., maintaining the status quo). Others, like Shafi‘is and Hanbalis, consider it valid both in negating and affirming previous rulings. (Zaydan, 2011, pp. 155–278)
The Fourth Speech:
Disagreement on the Conditions for the Authenticity of Hadith (khabar ul wahid)
Hanafis classify khabar al-wahid (solitary report) differently from mutawatir (mass-transmitted) and mashhur (well-known) hadith. Other scholars consider khabar al-wahid simply as a hadith that is not mutawatir. According to the majority, khabar al-wahid conveys probable knowledge (ẓann rajih) if it is authentically attributed to the Prophet (peace be upon him), while Zahiris and some hadith scholars believe it provides definitive knowledge (‘ilm).
Differences in jurisprudential rulings are also influenced by disagreements over the criteria for the authenticity of hadith.
Hanafi jurists are strict regarding khabar al-wahid and have set specific conditions for its acceptance. For instance: It should not relate to matters that occur frequently (as they require mass transmission). It should not contradict sound analogy or established principles of Shariah. The narrator’s actions should not contradict his narration.
Maliki jurists require that: The report must not contradict the practice of the people of Madinah. It must not go against the established principles of Shariah, as the practice of Madinah holds the same weight as narration from the Prophet (peace be upon him). Acting upon the narration of a group is preferred over following a solitary report.
The Shafi’i and Hanbali jurists have held that acting upon a solitary (ahad) hadith is contingent upon its authenticity, not upon the practice of the people of Medina.
If the hadith is mursal (a hadith in which the chain of narration is missing a companion), there is a difference of opinion regarding acting upon it. The Zahiris believe it is not authoritative and hence not obligatory to act upon. The Shafi’is, however, have stipulated conditions for accepting a mursal hadith. If these conditions are met, the mursal hadith is considered authoritative. These conditions include: it being among the mursal reports of senior Tabi’un (successors), it aligning with the opinion of a companion, or the majority of scholars acting upon it. (Zaydan 1390 AH, pp. 166–174)