On the Study of Comparative Fiqh (al-Fiqh al-Muqāran)

By Dr. Salāh Abū al-Hājj

Translated by Muntasir Zaman

[The following is an abridged translation of Dr. Salāh Abū al-Hājj’s discussion on comparative Fiqh. The author describes three methods of studying the differences of the jurists. The third method, better known as comparative Fiqh, is a modern concept that traces its origins to the 20^th century Egyptian scholar Ahmad Ibrāhīm. Although the study of scholarly differences is integral to comprehension of Fiqh, the author concludes, its study should be undertaken only after developing proficiency in knowledge; a premature exposure to scholarly differences can leave a novice confused. For the purpose of brevity, only relevant parts were translated. For the entire discussion, see Abū al-Hājj, al-Madkhal al-Mufassal ilā al-Fiqh al-Hanafī, pp.435-42]

Definition and Origins

There are three distinct disciplines: (1) Fiqh al-Ikhtilāf; (2) ‘Ilm al-Khilāf; and (3) al-Fiqh al-Muqāran.

Fiqh al-Ikhtilāf is a study of the opinions of the jurists with or without an expose of their respective evidences and answers to opposing views. The primary objective here is the differences of the jurists. General Fiqh texts only tangentially mention opposing views to underpin the strength of the preferred view whereas books of Ikhtilāf are written with the purpose of presenting the differences of the jurists whether the author only mentions their opinions or supports the evidence of the preferred view of his madhhab. This discipline traces its origins to the beginning of Fiqh itself; it is part of the study of Fiqh and without it Fiqh is not firmly established. In the 2^nd century, scholars compiled Hadīth collections on the reports and differences of the Companions and Successors on legal issues; the discipline further evolved during the era of the mujtahid scholars where they began citing legal issues alongside the disagreements therein.[1]

‘Ilm al-Khilāf teaches the method of critically engaging the evidence of the opposing view in accordance to the protocols of debate and argumentation. It is defined as a study of the methods of presenting shar‘ī evidence, answering critiques, and dismantling disputative arguments by adducing evincive proofs.[2] Tāshkubrī Zādah writes, “The science of disputation and differences can be placed among the branches of Usūl al-Fiqh.”[3] Abū Zayd al-Dabūsī (d. 430 AH) is regarded as the founder of ‘Ilm al-Khilāf as a result of the widespread and fervent inter-madhhab debates during the 5^th and 6^th centuries.[4] Through the vast literary wealth these debates have left, it is clear that each legal school has cogent evidences to support their respective views. Based on the definition I provided – that is, a description of the differences of the scholars, not restricted to deconstructing the opposing opinion – ‘Ilm al-Khilāf is more comprehensive: it includes the first generations of scholarship and continues to this day.

Al-Fiqh al-Muqāran is a comparative study and evaluation of the opinions and proofs of the jurists by someone who neither ascribes to the legal schools nor complies to their legal theory. As such, the Fiqh of this individual is not acknowledged by the scholars of the legal schools since he does not adopt any of their juristic methodologies nor an accurate method of evaluation, due to the absence of reliable documented principles like the legal theory of the madhhabs. If an adherent of a reliable legal school engages in this manner of comparative Fiqh, he will not be acknowledged because he has not reached a satisfactory level of expertise in Fiqh where he possesses the juristic capability to evaluate opinions based on established principles. This discipline is a product of the present era. Dr. Muhammad ‘Uthmān Shabbīr writes, “’Allāmah Ahmad Ibrāhīm (d. 1945) is the leading jurist of the time who remodeled the style of Islamic law in Egypt.” Al-Zirikli describes him in more detail:

He was a professor at the department of rights at Madrasat al-Qadā’ al-Shar‘ī. He is noted for his research in comparing legal schools and religions. He authored roughly 25 book, such as Ahkām al-Ahwāl al-Shakhsiyyah fī al-Sharī‘ah al-Islāmiyyah, al-Nafaqāt, al-Wasāyā, and Turuq al-Ithbāt al-Shar‘iyyah in comparative Fiqh.

It is evident from the above that Ahmad Ibrāhīm was the first to address legal issues in a comparative style similar to conventional comparative law, which credited him with remodeling Islamic law. This label and idea were unknown to earlier Muslims; they were an outcome of colonial thought and influenced by secular law. […]

Fiqh al-Ikhtilāf is a well-known field of study; a student of Fiqh cannot hope to develop competence until he gains an understanding of it, and Muslim scholars throughout history were deeply involved in it. However, it is unacceptable to concoct laws by combining scholarly opinions without set principles and evaluate without established criteria and inadequate comprehension. The study of Fiqh in this comparative manner is unprecedented. Al-Mughnī fī Sharh al-Khiraqī, al-Majmū‘ fī Sharh al-Muhadhdhab, and al-Bināyah fī Sharh al-Hidāyah are not books of comparative Fiqh in this sense; they are purely madhhab related books where the authors present various opinions and proofs on a subject and then support their respective views with scriptural and rational evidence. In al-Muhallā, Ibn Hazm al-Ẓahirī presents his own opinions and mentions other opinions to refute them, and he relies on his own principles of deducing laws, bearing in mind the criticism of scholars in respect to them. There is no issue in labeling a study “comparative” or “general” Fiqh; these are mere terms and there is no restriction in terminology. However, the potential problem lies is the methodology, which if compliant to the methods of our early and latter-day authorities is incontestable.

When should Fiqh al-Ikhtilāf be studied?

Fiqh al-Ikhtilāf should be studied at the end of one’s academic journey. Under the etiquettes of seeking knowledge, scholars explain that it is imperative to avoid delving into scholarly differences during the initial part of one’s study, particularly Fiqh – that is, by studying more than one school simultaneously – because that will confuse and scatter the thoughts and weaken piety due to the conflicting opinions. This is particularly in the case of one who evaluates opinions and exercises ijtihād in respect to the views of the mujtahid scholars without understanding their statements, studying their methodology, or consulting their experts. Hujjat al-Islām al-Ghazālī cautions:

In the beginning, one who seeks to study a discipline should avoid delving into differences, be they in the mundane or religious sciences, as that will overwhelm the mind, weaken the capacity to reason, and make one despondent of acquiring expertise. Instead, a student should begin by perfecting one praiseworthy path that is approved by his teacher; only thereafter should he delve into differences and objections.

The study of Fiqh requires a gradual pace. Just as it is incorrect to present scholarly differences to a novice until he develops a firm grasp of the sciences and acquaintance with their principles, it is likewise important for a teacher to take his students through the subjects of one field gradually. Scholars divided the acquisition of knowledge into different stages. The first stage is iqtisār (sufficient), the middle stage is iqtisād (moderate), and the advanced stage is istiqsā’ (exhaustive). ‘Allāmah Sājuqlī Zādah writes, “In Fiqh, iqtisār is acquired by studying books like Mukhtasar al-Qudūrī, iqtisād with books like al-Hidāyah, and beyond that is istiqsā’ with books like Fatāwā Qādī Khān and al-Khulāsah.”[5]