All praises and thanks are due to the Lord of the
worlds, and may He send His salaah upon Muhammad, the slave of Allaah and His Messenger, and His chosen one and friend. May
Allaah send His salaah and peace upon him and his family and his companions in abundance till the day of judgement.
ask Allaah Jalla wa 'Alaa for success in attaining righteous actions and firmness in action and in speech for myself and you
all. And I ask Him for success in every affair and I ask Him, Subhaanahu, that He makes us of those whom He blesses with beneficial
knowledge and righteous actions and that He doesn't lend us to ourselves for a blink of an eye, we have no might or power
except in Him, Subhaanuhu. Oh Allaah guide us to righteous action, and bless us with that which You Love and are Pleased with.
for what follows:
We will mention an introduction regarding benefitting from the books of fiqh, and how the student
of knowledge may study fiqh in the best of ways.
Fiqh and its different issues:
issues which were around at the time of the Prophethood so there are ayaat or there is an ayah about them and the Prophet
(sallallaahu 'alayhi wa sallam) has clarified their rulings. So these issues have texts for their rulings and in most cases,
the texts which prove these rulings are very clear as to their meaning. And from them are those issues which are met with
the differences of the mujtahideen regarding the understanding of the texts regarding these issues.
And from fiqh are
issues which appeared after the time of the Prophet (sallallaahu 'alayhi wa sallam) and these issues were needed by the people
due to the increase in size of Islaamic lands, and due to the 'arabs mixing with others. And it is known that the customs
of the people of Makkah and Madinah and the people of the peninsula are not like the customs of the people of Shaam and 'Iraaq
and the people of Persia and the people of Khurasaan and the people of
Egypt. So customs differ according
to the differing situations of communities, in their lands, due to time, and atmosphere, etc. So issues came up which the
people needed and they asked the sahaabah (ridhwaan Allaahi 'alayhim) about them.
And this is the second type, which
are issues which the sahaabah (ridhwaan Allaahi 'alayhim) made ijtihaad about. And the ijtihaad of the sahaabah regarding
these issues was built upon the implication of a text by taking a similar issue and applying it to a more general one, or
by using something general as a proof in this issue, or by using a general principle which there is some daleel for like the
well-known principle "removing hardship" and "hardship brings ease" and "matters are by their intentions," and the likes of
these from the general principles.
And there are other issues they made ijthiaad about and the ijtihaad was not very
clear in its proof, meaning it has proofs for it and against it. So the sahaabah had different stances regarding these matters.
And this type is from that which the statements of the sahaabah are written down and collected. And these issues will have
two or more opinions from the sahaabah, like the issue of the ruling of the prayer in which two prayers are combined due to
rain, should this just be for Maghrib and 'Ishaa' or should it go for Thuhr and 'Asr as well. Similarly there is the different
statements about the periods, are they during the pure times or during the menses, and things similar to these issues in which
the sahaabah differed over. And this is from the type of differeing which has proofs from the texts.
And there are
other issues as I mentioned to you which came up like using fabricated products or food, like the kuffaar that use, in some
of their products, certain things like the rennett of dead animals and the likes of this. This didnt appear except when 'Iraaq
became part of the Islaamic lands. Afterwards the likes of these issues came up, like the different clothes that were particular
to them, and like the public baths, and entering them. The public bath is a place where there is hot water which used to be
found in Shaam and near there.
And similarly this is like the different types of buying and selling which weren't known
at the time of the Prophet ('alayhis salaat was salaam), and they only came about after that. And the likes of these are differed
over much by the sahaabah (ridhwaan Allaahi 'alayhim). This differing amongst the sahaabah (ridhwaan Allaahi 'alayhim) was
usually in the issues of ijtihaad, and very little was it in the issues of khilaaf. And the difference between the two is
that the issues in which there is some differing are sometimes issues of ijtihad and sometimes issues of khilaaf. So the issues
of ijtihaad are those in which there is no text therefore this ijtihaad was made, and it also entails that for which there
is a text. And we mean by a text that which contains a proof from the Book or the Sunnah. However this proof could be understood
from more than one perspective. So one will make ijtihaad in the issue and understand something from the proof and another
will get something else from it. "And the divorced women should wait three periods" So here, is the period when she is pure
or when she is in menses? This is part of the issues of ijtihaad which there is no burden upon the mujtahideen regarding their
The second type: the issues of khilaaf. And this is the presence of differing regarding some issues, and
as we have mentioned this was little amongst the sahaabah (ridhwaan Allaahi 'alayhim), and the differing is due to ijtihaad
by ones opinion along side some proof for instance how ibn 'Abbaas (radhi Allaahu 'aynhu) used to judge in the issue of ribaa.
He used say there is no ribaa except in "nasi'ah" (a type of ribaa) or that "tafaadhul" is not from ribaa, and that it isnt
usurous profit, but rather only nasi'ah ("at-Ta'jeel" or having to do with placing a time in the contract upon which ribaa
will be collected) is ribaa. And as for "tafaadhul" with two different things, which is known as "ribaa al-Fadhl", then he
did not count this as ribaa. So this is ijtihaad along side a text.
And similarly he allowed, for a long period of
his life, (radhi Allaahu 'anhu) muta'ah marriages, and he thought they weren't abrogated. And this includes other than these
issues in which there is a clear proof. These are called issues of khilaaf. And differing in them is weak and it is not permissable
to establish proof based upon it, because the mujtahid from the mujtahideen from the sahaabah, and those after them, may make
ijtihaad and yet some text is hidden from them or some proof is hidden from them, or he has some understanding but it is in
opposition to the understanding of most. So this is what the people of knowledge, and shaykhul Islaam bin Taymiyyah, specify
as "issues of khilaaf". And the issues of khilaaf are different from the issues of ijtihaad. And the well known addage: "There
is no rejection regarding the issues of khilaaf" is then corrected as: "There is no rejection regarding the issues of ijtihaad"
So using the term issues of ijtihaad instead negates those issues of khilaaf.
And if there are two opinions: where
one of them has clear proof and the other doesnt, then we say: this is not from the issues of ijthiaad, rather it is from
the issues of khilaaf, and khilaaf is forbidden. And if the 'Aalim clearly opposes a proof then it is said this is his ijtihaad
and he has his reward, but he is wrong in this matter. And his ijtihaad is not given precedence with the presence of a text.
These opinions occured much in the time of the taabi'een. And in the time of the taabi'een there was an increase in new matters
and the fatwas about the new matters were based upon similar to what we mentioned regarding their establishing proof by the
Book, by the Sunnah, and their establishing proofs by the ijmaa' of the sahaabah. And so from this there came the different
statements of the taabi'een regarding these issues. And from that which is established is that if there is some issue that
was present at the time of the shaabah, and then if a another opinion comes up, in addition to the opinions of the shaabah,
then this is counted as being from the weak differences. Meaning if the sahaabah differ over a matter having two opinions,
then if a taabi'i adds an opinion, then that is counted as being from the weak differences by most of the people of knowledge.
That is because the third opinion is a new understanding of the proofs, and an additional understanding to the sahaabah's
understanding of the proofs. And if it were like that (i.e. that their opinion is strong despite its being additional to the
sahaabah's opinion) then the sahaabah would have missed out on a correct understanding of an ayah, and that is impossible
because the sahaabah have the correct understanding of the ayah with them and there is no way that a correct understanding
is with the others, which they would have missed and would be hidden from them, but rather all goodness is with them because
they are the most pure in heart of the Ummah and the most firm in knowledge and the least in burden as ibn Mas'ud (radhi Allaahu