WE CONTINUE with issues resulting from the collecting and weighing of evidence and why scholars may rule differently based on the evidence they have, or have not, received—and their trust in it.
3. The scholar receives a hadith that, in fact, is abrogated and he has no knowledge of the abrogating hadith.
In this case the ḥadîth may be sound and the event is comprehended but it has been abrogated. Since the scholar does not know that it is abrogated, he has an excuse as the rule is that there is no abrogation unless the superseding evidence is known.
An example of this is seen in the opinion of Ibn Masʿûd concerning the position of the hands in bowing during Ṣalah. In the beginning the rule was that one should hold one’s hands together and put them between the knees. This was abrogated and replaced with what is presently known and reported by Bukhâri, namely placing the hands on the knees. Ibn Masʿûd didn’t know about the abrogation, so he continued to hold his hands between his knees. He prayed once beside ʿAlqamah and Al-Aswad. They placed their hands on their knees. Ibn Masʿûd instructed them not to do so but to hold their hands together. Why? Simply because he was not aware of the abrogation. One is not obligated beyond his capabilities or knowledge: Allah burdens not a person beyond what he can bear. He gets reward for the good which he has earned and he is punished for the evil which he has earned [Sûrat Al-Baqarah, 2:286].
4. The case where the evidence reaches the scholar but his understanding of it is different from what it actually means.
An example of this is in the Quran where Allah says: But if you are ill or on a journey or any of you comes from answering the call of nature, or you have been in contact with women, and you find no water, then perform tayammum with clean earth [Sûrat Al-Mâ’idah, 5:6].
Scholars differed in their understanding of the meaning of “or you have been in contact with women.” Some understood it to mean generally touching of any kind, others as touching that might arouse sexual desire, and still others as only sexual intercourse. The last was Ibn ʿAbbâs’ opinion.
If one reflects on the verse, one will find that the truth is with those who understood it to mean sexual intercourse. Allah mentioned two circumstances requiring purification with water: wuḍû’ (ablution) and janâba (sexual defilement). Allah has said regarding ablution: Wash your faces and your hands up to the elbows, rub your heads, and wash your feet up to the ankles. But He states with regard to janâba, lf you are in a state of janâba, purify yourselves.
The eloquence of the language necessitates that the circumstances requiring purification with water be mentioned, as well as those requiring tayammum. Or [if] any of you comes from answering the call of nature is a reference to the need for purification from minor ḥadath (minor ritual defilement, such as passing wind) whereas or you have been in contact with women refers to the need for purification from major ḥadath (major ritual impurity, such as one resulting from sexual intercourse).
If one were to state that contact with women means any touching, the verse would only be referring to two requirements for purification from minor ḥadath, with no reference to major ḥadath purification requirements. This is simply not the usual style in the Quran. For those who understand contact as any type of touching, when a man touches with desire the skin of a woman his ablution is nullified. However, if he touches the skin of a woman with no desire, his ablution is not nullified.
The fact is that ablution is not nullified in either case. It was narrated that the Prophet ﷺ kissed one of his wives then prayed without making ablution. This ḥadîth was narrated in several transmissions that support one another.
Another example is when the Prophet ﷺ returned from the battle of Al-Aḥzâb and put down his weapons; Jibrîl (the angel) came to him and said, “We have not yet put down the weapons. Go to Banû Qurayẓah.” So the Prophet ﷺ commanded his companions to do that and said, “Do not perform the ʿAṣr Prayer until you get to the place of Banû Qurayẓah.”
The Companions differed in their interpretations of this statement by the Prophet ﷺ. Some understood that the Prophet ﷺ wanted them to hasten to the place of Banû Qurayẓah so that they would be there in time for ʿAṣr. The time for ʿAṣr arrived while they were still on the road, so they performed it and did not delay it until its time would elapse—which would have been the case if they had continued to Banû Qurayẓah without stopping. The other group understood that the intent of the Prophet ﷺ was that they should not perform ʿAṣr except at the place of Banû Qurayẓah. Thus they delayed performing ʿAṣr until they had arrived at that place, even though the time of ʿAṣr had already passed.
The correct interpretation, of course, is with those who performed the Ṣalah during its proper time, because all the texts on the obligation of performing Ṣalah within its time are muḥkam (entirely clear), while the text here is mutashâbih (ambiguous). The legal maxim stipulates that the mutashâbih Text is to be understood in the light of the muḥkam Text. As a result, this becomes one of the reasons for differences in interpretation of evidence seemingly contrary to the intent of Allah u or His messenger ﷺ.
5. The scholar receives the evidence but believes that it is in conflict with a stronger evidence that is in a Text or that is derived by a consensus (ijma’).
This is routinely found in those issues in which the notable legal jurists differ. There is also a great deal heard about claims of consensus by some scholars; however, upon closer examination of the issue it is found that there was no consensus at all.
One of the strangest issues of consensus is the claim that there is consensus regarding the acceptability of a slave’s testimony, while on the other hand, there is a claim of consensus on the unacceptability of a slave’s testimony. The reason for these two contradictory claims is that people tend to think that when people around them agree on something there are none that disagree with them, especially when they believe that the ruling adheres to what the Texts indicate. So the evidence from the Text and the consensus make the scholar strongly believe in the ruling. Sometimes he may think that the ruling is the result of sound analogy and judgment and therefore he concludes that no one would disagree with his ruling.
An example is seen in the opinion of Ibn ʿAbbâs regarding riba al-faḍl (unequal exchange undeterred). It is narrated in a sound ḥadîth that the Prophet said: Riba is indeed only in nasî’a. But in another sound ḥadîth narrated by ʿUbâdah ibn Al-Ṣâmit and others, the Prophet ﷺ said: Riba is in the nasî’a and in the increase. The scholars, later have agreed that there are two kinds of riba: riba al-faḍl and riba al–nasî’a. According to Ibn ʿAbbâs, riba is only in nasî’a, which is to increase the selling price of an item for a like item in return for a deferred period of time.
However, if you sell one amount of gold for a larger amount of gold and receive it on the spot (which is riba al–faḍl), Ibn ʿAbbâs would not consider it to be riba. According to Ibn ʿAbbâs, the use of the word innama (Arabic for: indeed only) in the ḥadîth, implies the restriction and limitation of the type of riba.
6. The scholar may use a received but unsound hadîth as evidence.
Unfortunately, this is a very common occurrence among scholars. Take, as an example, the Tasbîḥ Prayer. This prayer was mentioned in an unsound ḥadîth. Some consider it a reprehensible innovation, as well as doubt the authenticity of the ḥadîth on which it is based. Imam Ahmad, for instance, said: “The Tasbîḥ Prayer is not authentically transmitted from the Prophet.” Ibn Taymiyyah said: “The ḥadîth on this prayer is spurious.”
Looking closely at this prayer (one would pray two rakʿahs, reciting Al–Fâtiḥah in each, and saying tasbîḥ 15 times, make rukûʿ and sujûd while saying the tasbîḥ in each position), one will find that it is of an unusual and irregular nature. The prescribed acts of worship in Islam are all beneficial to the heart at any time and place. This prayer, which is to be performed once a day, week, month, or in a lifetime, has nothing similar to it in Islam. As such, its unusual nature is found inherent in the text and line of transmission. Ibn Taymiyyah was correct in saying that it is a lie. He also added: “No noted imam of fiqh has recommended it.”
We chose this example because people frequently ask questions about the Tasbîḥ Prayer. The fact is—and many may not like to hear this—this prayer is bidʿa, for it has no legitimate basis in the Quran and the Sunnah.
Some scholars may take a strong piece of evidence but use it in a weak analogy. A case in point is the ḥadîth: The slaughtering of an animal fetus is the slaughtering of the mother. Scholars interpreted this ḥadîth to mean that the slaughtering of the mother results in the slaughtering of the fetus, such that when the fetus is delivered dead after the mother’s slaughtering, it [the fetus] does not need to be actual slaughtered.
Other scholars interpreted this ḥadîth differently. They state that the slaughtering of the fetus should be like that of the mother, i.e., the fetus should also be slaughtered and the blood drained completely from its body. This interpretation is inconsistent with reality.
The complete drainage of the fetus’s blood cannot be achieved after its death simply because of its mother’s death. The ḥadîth states: If the blood is completely drained and the name of Allah is mentioned, then eat; and it is not possible to drain the entire blood of a dead animal.