Chapter 68 of 987 min read

4. Istishab

٤. الاستصحاب في المذهب الحنبلي

Qabeelat Tayybah TCE Notes Revolution 82

Presumption of continuity; using for something that has no established rule. If something isn’t in Qur’an or Sunnah, they would see what was done in pre-Islamic days. If that action wasn’t condemned in Islam, they would follow it. The Position of the Dhahiri Madhab On other Usool of Fiqh: They don’t have one usool. Each case is studied independently, each hadith on its own and then a ruling is deduced for that particular case. o Qiyas: The Dhahiri Madhab is very harsh against Qiyas. Imam ibn Hazm was very extreme in the refutation of Qiyas and especially the Hanafi Madhab. o Masalih Mursala: Ibn Hazm regarded this as bid’ah. On the other four madhaahib: Ibn Hazm was pro ijtihaad. His followers were called Al-Hizmiyah. He warned against the culture of Madhabism though. Major References for the Dhahiri Madhab The books of Imam ibn Hazm: (They aren’t recommended for beginners at all). Al Ihkam fi Usool al-Ahkam in Usool al-Fiqh Al-Muhalla bil A’athar in Fiqh: It’s a huge encyclopedia. In Contemporary Time Many of the contemporary scholars of ahl al-Hadith are called Dhahiri because they chose to use Hadith literally and truth be told, some fuqaha’ of our time did in fact have some Dhahiri aspects in their rulings. Faqeeh Says… A consideration which is proper and harmonious with the objectives of the lawgiver, is that it secures a benefit or prevents a harm, but the Shari’ah provides no indication as to its validity or otherwise. For example, the Companions decided to issue currency, to establish prisons and to impose a tax on agricultural lands despite the fact that no textual authority could be found for these measures. Qabeelat Tayybah TCE Notes Revolution 83

THE REVOLUTIONIST FAQEEH Imam Ibn Hazm Al Andalusee (384H-456H/994CE-1064CE) His Early Life Born in Andalus, Spain. His great grandfather was Persian. He lived in the royal court of Umayyads. His father was minister of the royal court. He learned all Islamic Sciences from the women of the palace. He did not join male activities until his beard starting growing. Ibn Hazm, the Minister He became a minister of the Ummayyads 2 to 3 times. During his time the political arena was in turmoil between many rivals who were trying to take the rule over Qortoba. The Umayyads were trying to take back leadership from Banu Ibn Abi Umar. One of the Andalusee Khulafa tried to take power. There was no stability for some time. Each geographic locality was on its own. They had their own ameers. His Works Two books that were mentioned above. His Revolution against the Fuqaha of his time He was against the fuqaha of his time and spoke out against "madhabism," meaning following any one particular school of thought. The fuqaha complained about him to the authorities and the authorities banned him from talking in public but he wanted to teach. He was independent of the four madhaahib. His books were burned in public court but he committed them all to memory and rewrote all of his books, which then survived until today. His reason for memorizing was so "if they destroy the papers, the knowledge is not in the papers, it is in my heart." Ibn ul Areef said about him, "The tongue of Ibn Hazm and the sword of Al-Hajjaj were indeed but twin brothers." Because of his tongue, he got into a lot of trouble. Imam Dhahabi criticized him for his tongue but also mentioned how much he loved Ibn Hazm. He taught the virtue of ijtihaad and studying fiqh independently. People admired him for his character and his persistence of teaching and spreading knowledge but they also said that his tongue did not help him; he was very sharp. The reason for his harsh tongue could have been because of his Persian descent or because he had an ulcer. His Contribution to Fiqh He left a great legacy of ilm, which contributes to fiqh greatly until it became an official madhab. He was a source of fiqh for those who did not want to stick to one madhab. The Shade of Ibn Hazm on Dhahiri He was the one who organized the madhab. After his death, people had to admit that he was a great scholar of his time. He had written a book in every subject in Islam. He has a plethora of knowledge. When Shaykh Yaser said he was rude, he did not mean he would curse, but when he would write, he would criticize the opinion of other scholars. He would use wording like "Those who claim themselves to be Hanafi" and "And some foolish say…" Dhahiri Location Part of Al Maghrib (No not AlMaghrib Institute, but referring to Morocco), Andalus and Baghdad. Qabeelat Tayybah TCE Notes Revolution 84

Removal of Blame against the Notable Imams1 Faqeeh Says… Have you ever wondered why the Imams disagreed on opinions of Fiqh when the source of Fiqh was only one? If the hadith was sahih and it was there in sahih al–al-Bukhari, why then did they disagree over it? Couldn’t they just tolerate differences of opinion and save us from this confusion? Here is the answer for your questions. Khilaaf & Ikhtilaf Disagreement and Difference of opinion Definition The contradictions and opposition in opinions of the Fuquha. The word khilaf 76فcomes from a tree in the desert. It is called a willow tree, which is a barren tree, it does not carry any fruit. This seems to indicate that Khilaf does not create any benefit. Nature of Khilaf in Fiqh • The default in fiqh discussions is to seek to arrive at an agreement. In books, they establish agreement, then discuss matters of disagreement (Ijma then Khilaf). • Emotional arguments are not tolerated. We should be completely objective in matters of Fiqh. It’s okay to have Khilaaf and it is allowed, SET ۡ T5 ٓ UV W TX VEY SZTCT[SE T\]T ^_ ۟T ٲ ۖ ۟ a)T`U TES MTeTEWPS dc/T aabT Allah says [in Surah Hud]: "And if your Lord had so willed, He could surely have made mankind one Ummah [nation or community (following one religion only i.e. Islâm)], but they will not cease to disagree" (alQur’an 11: 118) • Some is considered blameworthy, some praiseworthy Example of Praiseworthy – different interpretation of an ayah • "Any khilaaf that leads or causes animosity, division, among the muslim ummah is blameworthy and not from Islam" ~ Ibn Taymiyyah Reasons for hatred and animosity are caused by two things: -Baghi: transgression (which happens when things get personal) -Lack of Sabr: lack of patience from the other side. If the first party does not transgress and the second party shows patience, we would not have any problems in our ummah. You can apply this to 1 The title of this chapter is exactly the title of a book authored by Shaykh al-Islam Ibn Taymiyyah on the very same topic. Qabeelat Tayybah TCE Notes Revolution 85

any situation in our communities, even to family life. (i.e. when man transgresses and the woman doesn’t show patience). Categories of Khilaaf • Acceptable vs unacceptable ‘Unacceptable’ revolves around matters that are among the Ahkaam of Islam Example: Riba, or zina • Diverse vs Contradictory Diverse, both opinions are considered right and acceptable (For example, where you put your hands doesn’t invalidate your salah) Contradictory, is when there are two contradicting opinions one says halal and one says haram, and they cannot easily reconcile between both opinions. For example, according to Ibn Abbas, muta’ is halal, however everyone else is of the opinion that it’s haram. • The default in fiqh is as much agreement as possible. If you open any book of fiqh, the first statement of any imam is that they show the stuff they agree on and then they start talking about matters of disagreement. Hence, one first establishes agreement and them moves on to disagreement. Defending oneself and making the other person’s opinion seem wrong isn’t correct. Benefits of Khilaaf • ‘disagreement in my ummah is a mercy’ [weak Hadith, but concept is valid] The Reasons for Differences:

Chapter 68 of 987 min read

4. Istishab

٤. الاستصحاب في المذهب الحنبلي

Qabeelat Tayybah TCE Notes Revolution 82

Presumption of continuity; using for something that has no established rule. If something isn’t in Qur’an or Sunnah, they would see what was done in pre-Islamic days. If that action wasn’t condemned in Islam, they would follow it. The Position of the Dhahiri Madhab On other Usool of Fiqh: They don’t have one usool. Each case is studied independently, each hadith on its own and then a ruling is deduced for that particular case. o Qiyas: The Dhahiri Madhab is very harsh against Qiyas. Imam ibn Hazm was very extreme in the refutation of Qiyas and especially the Hanafi Madhab. o Masalih Mursala: Ibn Hazm regarded this as bid’ah. On the other four madhaahib: Ibn Hazm was pro ijtihaad. His followers were called Al-Hizmiyah. He warned against the culture of Madhabism though. Major References for the Dhahiri Madhab The books of Imam ibn Hazm: (They aren’t recommended for beginners at all). Al Ihkam fi Usool al-Ahkam in Usool al-Fiqh Al-Muhalla bil A’athar in Fiqh: It’s a huge encyclopedia. In Contemporary Time Many of the contemporary scholars of ahl al-Hadith are called Dhahiri because they chose to use Hadith literally and truth be told, some fuqaha’ of our time did in fact have some Dhahiri aspects in their rulings. Faqeeh Says… A consideration which is proper and harmonious with the objectives of the lawgiver, is that it secures a benefit or prevents a harm, but the Shari’ah provides no indication as to its validity or otherwise. For example, the Companions decided to issue currency, to establish prisons and to impose a tax on agricultural lands despite the fact that no textual authority could be found for these measures. Qabeelat Tayybah TCE Notes Revolution 83

THE REVOLUTIONIST FAQEEH Imam Ibn Hazm Al Andalusee (384H-456H/994CE-1064CE) His Early Life Born in Andalus, Spain. His great grandfather was Persian. He lived in the royal court of Umayyads. His father was minister of the royal court. He learned all Islamic Sciences from the women of the palace. He did not join male activities until his beard starting growing. Ibn Hazm, the Minister He became a minister of the Ummayyads 2 to 3 times. During his time the political arena was in turmoil between many rivals who were trying to take the rule over Qortoba. The Umayyads were trying to take back leadership from Banu Ibn Abi Umar. One of the Andalusee Khulafa tried to take power. There was no stability for some time. Each geographic locality was on its own. They had their own ameers. His Works Two books that were mentioned above. His Revolution against the Fuqaha of his time He was against the fuqaha of his time and spoke out against "madhabism," meaning following any one particular school of thought. The fuqaha complained about him to the authorities and the authorities banned him from talking in public but he wanted to teach. He was independent of the four madhaahib. His books were burned in public court but he committed them all to memory and rewrote all of his books, which then survived until today. His reason for memorizing was so "if they destroy the papers, the knowledge is not in the papers, it is in my heart." Ibn ul Areef said about him, "The tongue of Ibn Hazm and the sword of Al-Hajjaj were indeed but twin brothers." Because of his tongue, he got into a lot of trouble. Imam Dhahabi criticized him for his tongue but also mentioned how much he loved Ibn Hazm. He taught the virtue of ijtihaad and studying fiqh independently. People admired him for his character and his persistence of teaching and spreading knowledge but they also said that his tongue did not help him; he was very sharp. The reason for his harsh tongue could have been because of his Persian descent or because he had an ulcer. His Contribution to Fiqh He left a great legacy of ilm, which contributes to fiqh greatly until it became an official madhab. He was a source of fiqh for those who did not want to stick to one madhab. The Shade of Ibn Hazm on Dhahiri He was the one who organized the madhab. After his death, people had to admit that he was a great scholar of his time. He had written a book in every subject in Islam. He has a plethora of knowledge. When Shaykh Yaser said he was rude, he did not mean he would curse, but when he would write, he would criticize the opinion of other scholars. He would use wording like "Those who claim themselves to be Hanafi" and "And some foolish say…" Dhahiri Location Part of Al Maghrib (No not AlMaghrib Institute, but referring to Morocco), Andalus and Baghdad. Qabeelat Tayybah TCE Notes Revolution 84

Removal of Blame against the Notable Imams1 Faqeeh Says… Have you ever wondered why the Imams disagreed on opinions of Fiqh when the source of Fiqh was only one? If the hadith was sahih and it was there in sahih al–al-Bukhari, why then did they disagree over it? Couldn’t they just tolerate differences of opinion and save us from this confusion? Here is the answer for your questions. Khilaaf & Ikhtilaf Disagreement and Difference of opinion Definition The contradictions and opposition in opinions of the Fuquha. The word khilaf 76فcomes from a tree in the desert. It is called a willow tree, which is a barren tree, it does not carry any fruit. This seems to indicate that Khilaf does not create any benefit. Nature of Khilaf in Fiqh • The default in fiqh discussions is to seek to arrive at an agreement. In books, they establish agreement, then discuss matters of disagreement (Ijma then Khilaf). • Emotional arguments are not tolerated. We should be completely objective in matters of Fiqh. It’s okay to have Khilaaf and it is allowed, SET ۡ T5 ٓ UV W TX VEY SZTCT[SE T\]T ^_ ۟T ٲ ۖ ۟ a)T`U TES MTeTEWPS dc/T aabT Allah says [in Surah Hud]: "And if your Lord had so willed, He could surely have made mankind one Ummah [nation or community (following one religion only i.e. Islâm)], but they will not cease to disagree" (alQur’an 11: 118) • Some is considered blameworthy, some praiseworthy Example of Praiseworthy – different interpretation of an ayah • "Any khilaaf that leads or causes animosity, division, among the muslim ummah is blameworthy and not from Islam" ~ Ibn Taymiyyah Reasons for hatred and animosity are caused by two things: -Baghi: transgression (which happens when things get personal) -Lack of Sabr: lack of patience from the other side. If the first party does not transgress and the second party shows patience, we would not have any problems in our ummah. You can apply this to 1 The title of this chapter is exactly the title of a book authored by Shaykh al-Islam Ibn Taymiyyah on the very same topic. Qabeelat Tayybah TCE Notes Revolution 85

any situation in our communities, even to family life. (i.e. when man transgresses and the woman doesn’t show patience). Categories of Khilaaf • Acceptable vs unacceptable ‘Unacceptable’ revolves around matters that are among the Ahkaam of Islam Example: Riba, or zina • Diverse vs Contradictory Diverse, both opinions are considered right and acceptable (For example, where you put your hands doesn’t invalidate your salah) Contradictory, is when there are two contradicting opinions one says halal and one says haram, and they cannot easily reconcile between both opinions. For example, according to Ibn Abbas, muta’ is halal, however everyone else is of the opinion that it’s haram. • The default in fiqh is as much agreement as possible. If you open any book of fiqh, the first statement of any imam is that they show the stuff they agree on and then they start talking about matters of disagreement. Hence, one first establishes agreement and them moves on to disagreement. Defending oneself and making the other person’s opinion seem wrong isn’t correct. Benefits of Khilaaf • ‘disagreement in my ummah is a mercy’ [weak Hadith, but concept is valid] The Reasons for Differences: