Comparative Fiqh

(Al- Fiqh al- Muqaran)

presented by Hassan bin Suleiman

Online certificate course offered

by IIIT & AHAS KIRKHS 2022
 The synopsis of the subject:

The subject discusses the literal and technical

meaning of Comparative Islamic Jurisprudence, its
subject matter and benefits. It explains the nature
of the disagreement in Fiqh, its origin and
etiquettes. This course also discusses some selected
cases of Fiqh, taking into consideration the Fiqh of
the main scholars, by presenting their evidences
and highlighting the aspect of their disagreement
and its causes. presenting their evidences and
highlighting the aspect of t
 The synopsis of the subject :
 Besides, it indicates the arguments and its
Besides, it indicates the arguments and its counter-
arguments by their opponents. Lastly, this course
attempts to strike to a balance between these
opinions, supported by evidences without fanatical
enthusiasm to any school of Islamic legal thought.
eir opponents. Lastly, this course attempts 
to strike to a balance between these
opinions, supported by evidences without
fanatical enthusiasm to any school of
 Contents of the subject:

The subject's contents include:

contents include:

1: Introduction of Comparative fiqh, its subject matter

and
benefits

2: The meaning and Nature of Iktilāf (disagreement)

3: The subject matter.

4: The Causes of Juristic Disagreement in Early Islamic
Jurisprudence as well as the jurists.
 The subject's contents include:

 5: Etiquettes of disagreement.
 6: Selected disagreements Legal Issues (al- Masā’il al- Fiqhiyyāh
al- Khilāfiyyāh).
 The activities required here are as follows:

*The views of the schools of Islamic legal thought.

*Evidences
*Argument and counter-argument
*The chosen opinion.
7:The benefits of studying al-Fiqh al-Muqāran (comparative
Jurisprudence).
 The meaning of al-Fiqh al-Muqāran
(comparative Jurisprudence) and other
equivalent terms orterminology:

-Fiqh al-Muqāran
(comparative
Jurisprudence) and
The meaning The meaning
andother
Nature of equivalentand Nature of
IKhtilāf: IKhtilāf:
terms or terminology:
‫ا‬
:‫ أدلة ألموجبين‬:‫أول‬
The meaning of al-Fiqh al-Muqāran

a different position or
course from that of
another person either in
The Arabic term IKhtilāf denotes a different position or course from that of another
person either in opinion, utterance, or action. The related word Khitilāf is from the same
root as IKhtilāf and is sometimes used synonymously with it.

opinion, utterance, or
action. The with it.
other equivalent terms or terminology:
1: Dialectics (Jadal) ‫جدل‬

The stubborn adherence (‫ التزام‬/‫ )التقيد‬to its own opinion or position on

the part of one or both of two parties at variance (‫ )خالف‬with each
other, the attempt to defend this position, to prevail on others to
accept it or to hold it against them – these are all elements in
disputation or dialectics (jadal).
As a discipline, the “science” of dialectics (‘ilm al-
Jadal) is based on advancing evidence to show which
juristic rulings are more sound. (See: al- Jurjāni, al-
Ta’rifāt, 66, Aleppo.) However some scholars also
regard it as a discipline which enables a person to
maintain any position however false it is, or indeed to
demolish any position however true it is.
rulings are more sound. (See: al-
Jurckenables a person to maintain
any position however false it is, or
indeed to demolish any position
however true it is.
 2: Dissension (Shiqāq)
The term dissension (Shiqāq) may be applied to such a situation. The
word Shiqāq in Arabic has the original meaning of carving out a piece
of ground into distinct portions, and seem to suggest that one piece
of ground is not wide enough to accommodate both disputants at the
same time. For example, in Surah al- Nisa: 35, Allah said: “If you fear
that a breach (dissension) (shiqaq) might occur between a married
couple, appoint an arbiter from among his people and an arbiter from
among her people.” ja piece of ground into distinct
portions, and seem to suggest that one piece
of ground is not wide enough to
accommodate both disputants at t
3: School of thought (Madhāhib,
singular: madhhab)

School of thought
(Madhāhib, singular:
madhhab)
Juristic
Perspectives
‫بيان أرأء ألمؤسسات ألفتاوى في مختلف ألبلدأن أإلسالمية‬
4: Fiqh (Jurisprudence)
Fiqh literally means "understand" or "to understand what is
intended by the speaker". Therefore, it is said 'fagihtu
kalamaka "meaning, "I understand what do you mean by
such and such". Moreover, the word fiqh or
Moreover, the word fiqh or its derivatives in the Qur'an carry the same
meaning as above i. e. being used to denote understanding of any matter.
Obviously, such a meaning is not intended in the technical sense of figh
as will be shown later. But what is clear from the previous illustration is
that the figh based on its original meaning was not applied in the legal
sense alone, but carried a wider meaning covering all aspects of Islam,
namely theological, political, economic and legal
questions. (See: Almustasfa, vol. 1, p.4, al- Amidi, al- Ihkam, vol.1, p.5.)
5: Taqlid (Uncritical adoption)
6: Salaf (Pious predecessors)
 Being a derivation of the root word rajaha,
tarjīh. Literally means to make
7: Al- Tarjīh
preponderate. ‫الترجيح‬
I In Arabic, it is described as
an infinitive noun for the t
The meaning of al- Tarjih:
Being a derivation of the root word rajaha, tarjīh. Literally means to
make preponderate. I In Arabic, it is described as an infinitive noun
for the transitive verb ; rajjaha, as clearly indicated in an Arabic
expression "raljaha hadha 'aia dhaka ": he made this outweigh that.
Thus tarjīh indicates preponderation or preference which makes the
balance of one thing heavier than the other. Accordingly, one
scholar has mentioned that tarjih literally means al-tamkin wa al-
taghlib. We understand from the above that tarj ih involves two
sides of a balance, one being arjah which is heavier and the other
marjuh which is outweighed, the latter in its proper usage meaning
surpassed or excelled. (see ibn Manzur, Lisa.n, vol. 2, p. 445 ; Lane.
Lexicom part 3. pp. 1034-1035 ; alRaz i. a1-it j. p. 234, Nihayah, vol. 3,
p. 212. See also Irshaci. p. 273 ; al-Turki, Ikhtilaf,, p. 198. The opposite
literal meaning of tarjib is al-tai/if. (Kash, vol. 4, p. 77.)
ur
Tarjih in a technical sense
As well as other terms in Islamic legal theory,
remained strictly undefined during the first stage
of the development of usul literature. Although
tarjih is nowhere explicitly mentioned in early
Islamic literature, I believe that the general
concept of tarjīh, in preferring what is more
reliable was already well-known to the early
scholars. However, according to al-Razi tarjih
technically is the strengthening of one side
(Taraf) over the other side so that the superior
(between) them can be known and applied while
the other is discarded. However, al-Armawi who
wrote an abridgement of al-Razi's al-Mahsul
defined tarjih as the strengthening of one method
(tariq) instead of one side (taraf). (See: Al-
MaflSuI. vol. 2. pp. 443-444. See also Nihayah, vol.
3, pp. 211-212, Al-Tahsil. vol. 2, p. 257.)
The meaning of al-Fiqh al-Muqāran or ‘ilm
al- Khilāf and its relationship with the
term al- Tarjīh:

 There is a relationship between tarjih and the so called al- Fiqh al-Muqaran i.
e. comparative study of Islamic law. On the one hand, one may argue that the
latter is only another name for tar,jih, for both are interchangeably used to
Indicate a process of evaluation or
refinement of different legal rulings to arrive at the most acceptable. Or one
may argue the contrary. Generally speaking, al- Fiqh al-Muqaran has two
distinctive meanings in legal study. The first lies in the fact that it is merely
collection and composition of varying legal opinions of cases in fiqh without
attempting to evaluate the bases of these rulings. The second goes beyond
this phenomenon whereby the collection of different legal rulings is always
followed by an evaluation of legal bases of these rulings seeking a proper
opinion (arjah ). (See: AI-Hakim,al- Usul. pp. 13,15.)
The second meaning of al- Fiqh al-
Muqaran,

The relationship between the two can be illustrated by saying that, since tarjih is
a comparative study of usul al fiqh, it is devoted to discussing comparative study
of figh. Many classical works have been carried out to undertake the task of
comparative study of fiqh in Islam. At the later stage, it becomes a distinct study
of fiqh in the way that only some of the jurists are capable of producing this type
of composition. Those who are qualified are commonly known as ashab al-tarjih
or ashab al-tashih. By this, it is quite clear that al- Fiqh al-Muqaran is a
reflection of tarjih. or rather, it is the practical implementation of tarj ih to
conflicting cases in Islamic law. In other words, the difference between the two is
an epistemological one tarjih is the mechanism through which comparative study
of fiqh is conducted.
How does the processes of al-
Fiqh al- Muqaran goes?
The Hukm of al- Tarjih: ‫الترجيح‬

In this part of our discussion, we shall examine the question of the validity of tarj i h. as viewed by the
jurists. Our main aim will be the clarification of this principle in terms of validity or invalidity in
removing any cases of legal contradiction. The majority of jurists or simply the Jumhur were of the
opinion that tarjih is legally valid and moreover, an obligatory practice to be undertaken with
reference to the most explicit indication, called rajih.
Some unnamed jurists who contended that tarjih is an unacceptable method of solving conflicting
pieces of evidence have raised however, an bjection to the applicability of tarjih. Instead of tarj i h,
the so-called takhyir and/or tawaqquf should be applied in such cases. (See: Al-Amidi, al-Ihkam, vol.
3. p. 257; Ijabah. p. 418; al-Muwafaqat, vol. 4, 13, 140- 147.)
This is because Allah mention in Surah al- Nisa: 59: “(…And) if you differ in anything amongst
yourselves, refer it to Allah and His Messenger (SAW), if you believe in Allah and in the Last Day. That
is better and more suitable for final determination.”

The Hukm of al- Tarjih: ‫الترجيح‬

Secondly, the jumhur, in order to maintain their point of view, have referred to the
practice of the Companions. Their aim is to show that tar,j ih was commonly accepted and
practised by the
Companions arguing that if tarjih was illegal, the Companions would certainly have
abstained from practising it.
 To this purpose, several instances and incidents have been frequently quoted. 31 One
scholar has remarked that the salaf were unanimously agreed on the need to grant
preference to some solitary
tradition i. e. transmitted by a single person, over other transmissions for example, in a
case when it is reported on the authority of the Prophet's wives over the one reported by
other women or even over the report which came through a well-known transmitter like
Abu Hurayrah, provided that all the contradictory ahadith concern the Prophet's family
affairs.
'Ä'ishah and Umm Salamah, for example, reported that the Prophet used to start fasting in
the morning when he was still in a state of janabah (ritually impure). Abu Hurayrah,
however, reported from the Prophet that such a fast is invalid; "man asbaha junuban fala
sauma lahu ".The
jurists, however, preferred the one which is reported by the Prophet's wives
because as stated by al-Amidi, the Prophet's wives were the persons most
likely to know what is actually said or done by the Prophet particularly in such private
matters.
The Condition of al- Tarjīh:
‫الترجيح‬

1: A murajjih, first of all, should be as objective as possible in examining legal conflict. No

other interest should co-exist in his purpose of examining legal conflict than to arrive at what
is the most likely interpretation to deserve full adherence. Then, he himself should avoid having
a pre-conceived and pre-determined bias )‫ )تحيز‬for a particular legal ruling or madhhab.
2: Also important is that the murajjih should be well versed in the skill of argumentation and
counter argumentation (‫ )مناقشة‬and with the hierarchical order of legal evidence.
3:The final element requires a murajjih to be familiar with disagreements Legal Issues (al-
Masā’il al- Fiqhiyyāh al- Khilāfiyyāh).
The benefits of studying
Comparative Fiqh:
i. Attempting to discover Allah's ruling regarding
issues that scholars disagreed about.
ii. Developing the fiqh skills through reviewing
scholars' opinions in debatable questions and
recognizing the scholars' ways to infer the Shari‘ah
rulings.
iii. Combating fanaticism and removing it from fields
of scholarly research.
iv. Opening the door to utilizing the different fiqh
schools and for selecting fiqh opinions that are
preponderant or that realize the public interests in
various contexts, times and places.
v. Appreciating and benefitting from the efforts of previous
scholars. This way, the Islamic legacy is safeguarded and the
calls to merge, cancel or freeze the fiqh schools are
thwarted.
vi. Highlighting the richness of the Shari‘ah and its
applicability to all times and places.
vii. Showing the value of fiqh and its close connection with
the sources of legislation.
viii. Demonstrating the necessity of studying Arabic, being
the language of the Quran without which the Quran cannot
be properly understood. Similarly, studying comparative fiqh
shows the necessity of learning the occasions of revelation
(asbab al-nuzūl), the abrogating and the abrogated (al-
nāsikh wa al-mansūkh), Hadith Methodology (muṣṭalah al-
hadīth), Principles of Fiqh (Uṣūl al-fiqh), and the rulings
verses and hadiths ('āyāt wa ahādith al-ahkām) and their
roles in the process of ijtihad (Al-Hakīm: 14, Al-Ashqar: 11, Al-
Farra: 6, Al-Maṣrī: 4-5 and Al-Būṭī: 5-6).
h (U
The Causes of Juristic Disagreement
(IKhtilāf) in Early Islamic Jurisprudence
as well as the jurists:

Causes of Iktilaf Among the Companions:

During the lifetime of the prophet (SAW)
fiqh was not codified, there was no
research carried out as was done by the
jurists of later periods who propounded
and explained what constitute essentialjh,
conditions (shurut), and adjuncts (adab).
Same was the case during the period of the
companions, where fiqh (jurisprudence)
remained uncodified. However, juridical
discourse were being carried out.
Companions had to undertake the duty of
guiding the Muslims community in its
spiritual as well as worldly affairs after the
prophetic era.
 People confronted new problems which called for
novel solutions. If a text of the Quran or
pronouncement of the prophet (SAW) covered such
a problem or if the prophet had decided a similar
case, there could be no problem. But new facts and
circumstances kept arising for which no provisions
had been made. This was partly due to the fact that
the affairs of the community expanded with the
expansion of the Muslims community itself.
The companions disagreed due to
several factors.
Following could be the basis causes of
the Iktilaf among the companions:
1: IKhtilāf owing (‫ )بسبب‬to the different
understanding and interpretation of the
legal text.
2: Occurrence of Homonyms in the
legal text.
3: Several factors related to Hadith
which caused Iktilaf such as:
* Dought in the authenticity of Hadith
* Absence of information of a Hadith.
* Contradiction report of Hadith on the
same issues.
4: Absence of a text on a particular
issue.
1:IKhtilāf owing to the
different understanding
or interpretation of a
legal text
When Iraq & Egypt were conquered the
question regarding the distribution of the
land arose. Umar (R.A) was of the opinion
that it should be left in the hands of the
origin owners and the land tax, (Kharaj)
should be imposed upon them and the
proceeds of the land tax should be utilized
for the welfare of the Muslims, whereas
others were of the view that it should be
distributed among the soldiers. What is the
reason for this disagreement?
er
2: Occurrence of Homonyms
(MUSHTARAK) in the legal
text.
f Homonyms (MUSHTARAK) in the legal
text.
There are words in Arabic language which
carry more than one meaning and
sometimes even opposite meaning and thus,
would give rise to different interpretations.
Such words are called Homonyms
(mushtarak) . There are many Qur’anic texts
where homonyms occurred, and to which
different interpretations have been given by
the companions as well as the jurists.
For instance, the word QADA ‫ قضى‬is used
in the Qur’an in different meanings. At
some places, it refers to adjudication, while
at other places, the word qada is used to
denote command, enjoin, convey, e.t.c.
Same happen to the word ‫النكاح‬
The companions disagreed on
certain legal issues due to the
occurrence of homonyms in the
legal texts. For instance, in the
Qur’an we read in the context of
‘IDDA for divorce woman
"‫والمطلقات يتربصن بأنفسهن ثالثة قروء‬
“Divorce woman wait concerning
themselves for three quruu periods”
Surah al- baqarah: 227.
What is the meaning of quruu in the
verse?
3: IKhtilāf due to the
controversy over Hadith:
Several factors related to Hadith
which caused Iktilaf such as:
i: IKhtilāf due to dought over
the authenticity of a Hadith.
*For example, during the reign of first
Caliph Abu Bakr (R.A) a woman came to
Abu and requested him to give her a share
of inheritance from her deceased
grandson’s property. Abu Bakr refused to
give her any share since there was no any
provision known to him either in the Qur’an
or the Sunnah providing her such a share.
When he consulted the people on this
matter, Mughira b. Shu’aba (R.A) said that
the prophet has given her one six of a
share. Then Abu Bakr asked mughira is
there anyone else with you who heard this
hadith from the prophet (S.A.W)?
ii: Absence of Information of a
Hadith on the issue:
Another factor that caused ikhtilaf
among the companions was the
absence of information of a hadith.
In some cases a hadith was not
known to a companion. Hence, he
decided a legal problem on the
basis of his own opinion. It was
indeed not practically possible for
all companions to attend the circle
of the prophet (S.A.W) on every
occasion. Furher, the companions
learned Hadith by memorizing it.
Except a small number the hadith-
unlike qur’an was never recorded in
writing during the life time of the
Examples:
*Ibn Abbas & Ali (R.A) were of the
opinion that the Idda (prescribe or waiting
period) of a pregnant woman following the
death of her husband would one of the
longer periods (namely four month and ten
days if she gives birth within that period, if
not until her child birth). They were not
aware of the Sunnah of the prophet
(S.A.W) in case os Sabi’ah al- Aslamiyya
who is reported to have said that the ‘Idda
(waiting period) for her, was fixed until her
child birth.
* In another incidence, it was stated Abu
Huraira (R.A) held the view that the fasting of a
person who had wet dream is not valid. This is
because he was not aware of a Hadith reported
by ‘Aisha and Ummu Salama (R.A) at times
Allah’s apostle (S.A.W) used to get up in the
morning in the state of junub after having
sexual relations with his wife. He would then
take a bath and fast.
When Abu huraira (R.A) was informed of the
Hadith mentioned reported by Aisha & Umma
Salam, he changed his opinion saying that both
of them are more knowledgeable about the
prophet (S.A.W) than me.
 iii: Ikhtilaf owing to Contradictory
report of Ahadith on the same issue:
On occasions two contradictory Ahadith were
reported from the prophet (S.A.W). some
companions followed one of these while others
followed the other.
Example:
*Tradition on usury (riba) provide the best
illustration on this point.
Ibn ‘Abbas (R.A) reported on the authority of
usamah b. Zaid from the prophet (S.A.W) that there
is no riba except on loan. ‫ال ربا إال في النسيئة) أخرجه‬
‫)البخاري من حديث أسامة بن زيد‬
But Ubadah b. al- Samit, Abu said al-
Khudri, Uthman b. affan and Abu Huraira
reported the famous Hadith of riba in six
commodities in a hand to hand transaction
the Hadith thus provided that:
“Gold for gold, silver for silver, wheat for
wheat, barley for barley, dates for dates, and
salt for salt must be equal for equal, hand to
hand…”
Transaction in these commodities must in
other words, be without excess on either
side and delivery immediate. Otherwise the
transaction would amount to usury which is
forbidden. However, according to Ibn abbas
view riba will just be in loan, however it was
reported Ibn Abbas had already changed his
opinion on that.
 4: Ikhtilaf due to Absence of
legal text on a particular issue.
After the end of the prophetic era, the companions were
spread out in different parts of the Muslim world. Most of
the them occupied the positions of intellectual and religious
leadership. They were approached by the people of their
regions for decisions regarding various problems. They gave
their decisions sometimes according to what they had learnt
and retained in their memory from the commandments of the
prophet (SAW); and at other times according to what they
understood from the Qur’an and the Sunnah.
 Causes of Juristic Disagreement
(IKhtilāf) among the succeeding
generations:
The causes of Ikhtilaf among the prominent
scholars of succeeding generations are almost the
same as we I have explained earlier in the case of
companions. However, increasing number of fresh
problems which are not directly specified in the
Quran or Sunnah widen the scope of the Ikhtilaf
in this period. Following are some of the main
causes of Ikhtilaf among the jurists of succeeding
generations.
 reported on
the sakthe
Causes of Juristic Khilāf among the
authencity ofgenerations:
succeeding
Hadith.
iii:
Contradictor
y Ahadith
1: Ikhtilaf on the basis of understanding and interpreting the legal
texts of the Quran.
reported
2: Ikhtilaf on factors with regard to hadith such
due to certain
the same
a2: Ikhtilaf due to certain factors with regard to hadith such as:
s: subject
matter.
i: Controversy over ahad Hadith

ii: Doubt over the authencity of

r.
Hadith.
iii: Contradictory Ahadith reported
on the same subject matter.
 Causes of Juristic Khilāf Among the succeeding
generations:

3: Ikhtilaf due to difference in understanding commands (‫ )األمر‬and prohibitions

(‫)النهي‬.

4: Ikhtilaf owing to differences on the approaches of the fuqaha’

towards the sources of Islamic law.