continued.....
Now let us move on to a different field of Islamic Law and that is, how the Islamic jurists of the mazhabs have extracted Islamic legal maxims to solve new issues, which is not explicitly mentioned in Holy Quran and Sunnah Saheeh:
Example one: Allah forbids in holy Quran the eating of pork, except when one is under duress Allah allows it. The verse is mentioned in Al-Baqarah. The jurists have decided the principle or you can say legal maxim which is ''Necessity permits prohibitions'', and they have extended this legal maxim in to branches one of which is ''The degree to which a prohibition is permitted depends on the degree of the necessity at hand''.
Example two: A man came to Prophet (saas) and said that he finds something irritating in his stomach while prayer and he fears he may pass gas. The prophet (saas) said to him not to break his prayer unless he hears noise or smells something. The Jurists have extracted a legal maxim which is ''Certainty is not invalidated by doubt''. So you have done wudu (ablution) but you forgot after a while or after some time and is unsure about your Wudu or not, but the last thing you remember was that you did wudu, so applying this will imply that you do not have to repeat wudu.
The jurists of the mazhabs have extracted like this well over hundred legal maxims. The first man to begin writing on this was Imam Al-Karkhi of the Hanafi mazhab., back in about 200-300 Hijri, or close to it. The jurists of the mazhabs at places may vary as to how to implement such maxims, because it needs mastery to apply the proper maxim at the proper place at the proper way.
The question needs to be asked: ''can you by yourself reading Holy Quran and hadeeth saheeh be competent enough to extract such, apply them properly, without following a mazhab and scholarly guidance?'' You will just make a big mess of the order.
Let us now move to the field of Islamic court system or more proper to be called it as Islamic legal procedure:
A woman, wife of Muwaiya (ra) came to the Prophet (saas) and complained about her husband saying him as very stingy in spending on her. The Prophet (saas) said to her to take from her husband's wealth what she needs for her necessity, without her husband's permission. The scholars differed as how to implement this Sunnah but they agreed on the ruling. Their difference is that they asked this simple question: ''Did the holy Prophet (saas) pass down this ruling as a judge or a mufti (jurist)?''. If you say ''as a judge'' then it is not allowed for any woman to just take from her husband's wealth in necessity, without the court order of the Islamic state, because safeguarding the property of the husband, which she is entrusted with is obligatory on wife. If you say ''as a jurist'' then it is applicable on all women similar to the case of the mentioned wife in the hadeeth. If any say that the Prophet did it and that is enough for us to follow then it should be said, the prophet also ordered executions of capital punishments in Islam, so are to do carry out these capital punishments whenever we get the chance, by ourselves? That would make a chaos, in the nation.
Here again we see the necessity of following a mazhab and the necessity for the state to adopt a mazhab to implement Islam.
I do not want to extend the discussion of necessity of following a mazhab, because it can take pages after pages. There are many issues that have not been discussed such as the position of the mazhabs as to what constitute a saheeh hadeeth, or what constitutes an acceptable hadeeth. There is also the discussion about how mazhabs approached in case there has been a conflict in legal evidence, that is to say, how the mazhabs approached to solve such conflicts, and so on. In reality Islam has no contradictions, but it is lack of our understanding to this great and true religion at times. We thus need to respect the mazhabs whether theological or legal and should adopt one, and leave the analysis and interpretation to the masters, i.e. the scholars. Who am I, or you to throw away thousand years of legal and theological treasures of Islam with the good yet empty slogan of following Holy Quran and hadeeth saheeh, yet in reality we do not know what they imply of?
Now let us move on to a different field of Islamic Law and that is, how the Islamic jurists of the mazhabs have extracted Islamic legal maxims to solve new issues, which is not explicitly mentioned in Holy Quran and Sunnah Saheeh:
Example one: Allah forbids in holy Quran the eating of pork, except when one is under duress Allah allows it. The verse is mentioned in Al-Baqarah. The jurists have decided the principle or you can say legal maxim which is ''Necessity permits prohibitions'', and they have extended this legal maxim in to branches one of which is ''The degree to which a prohibition is permitted depends on the degree of the necessity at hand''.
Example two: A man came to Prophet (saas) and said that he finds something irritating in his stomach while prayer and he fears he may pass gas. The prophet (saas) said to him not to break his prayer unless he hears noise or smells something. The Jurists have extracted a legal maxim which is ''Certainty is not invalidated by doubt''. So you have done wudu (ablution) but you forgot after a while or after some time and is unsure about your Wudu or not, but the last thing you remember was that you did wudu, so applying this will imply that you do not have to repeat wudu.
The jurists of the mazhabs have extracted like this well over hundred legal maxims. The first man to begin writing on this was Imam Al-Karkhi of the Hanafi mazhab., back in about 200-300 Hijri, or close to it. The jurists of the mazhabs at places may vary as to how to implement such maxims, because it needs mastery to apply the proper maxim at the proper place at the proper way.
The question needs to be asked: ''can you by yourself reading Holy Quran and hadeeth saheeh be competent enough to extract such, apply them properly, without following a mazhab and scholarly guidance?'' You will just make a big mess of the order.
Let us now move to the field of Islamic court system or more proper to be called it as Islamic legal procedure:
A woman, wife of Muwaiya (ra) came to the Prophet (saas) and complained about her husband saying him as very stingy in spending on her. The Prophet (saas) said to her to take from her husband's wealth what she needs for her necessity, without her husband's permission. The scholars differed as how to implement this Sunnah but they agreed on the ruling. Their difference is that they asked this simple question: ''Did the holy Prophet (saas) pass down this ruling as a judge or a mufti (jurist)?''. If you say ''as a judge'' then it is not allowed for any woman to just take from her husband's wealth in necessity, without the court order of the Islamic state, because safeguarding the property of the husband, which she is entrusted with is obligatory on wife. If you say ''as a jurist'' then it is applicable on all women similar to the case of the mentioned wife in the hadeeth. If any say that the Prophet did it and that is enough for us to follow then it should be said, the prophet also ordered executions of capital punishments in Islam, so are to do carry out these capital punishments whenever we get the chance, by ourselves? That would make a chaos, in the nation.
Here again we see the necessity of following a mazhab and the necessity for the state to adopt a mazhab to implement Islam.
I do not want to extend the discussion of necessity of following a mazhab, because it can take pages after pages. There are many issues that have not been discussed such as the position of the mazhabs as to what constitute a saheeh hadeeth, or what constitutes an acceptable hadeeth. There is also the discussion about how mazhabs approached in case there has been a conflict in legal evidence, that is to say, how the mazhabs approached to solve such conflicts, and so on. In reality Islam has no contradictions, but it is lack of our understanding to this great and true religion at times. We thus need to respect the mazhabs whether theological or legal and should adopt one, and leave the analysis and interpretation to the masters, i.e. the scholars. Who am I, or you to throw away thousand years of legal and theological treasures of Islam with the good yet empty slogan of following Holy Quran and hadeeth saheeh, yet in reality we do not know what they imply of?
No comments:
Post a Comment