Preface (Mohammed Jawad Maghniyah
In the Name of God, the Beneficent the Merciful
God's benediction and peace be upon our Master Muhammad and his honorable Progeny and Companions.
It is reported in a noble tradition that Gabriel descended upon Adam, and said to him: “God commanded me to let you choose one of these three: intellect (`aql), religion (Dín), or modesty (\ayá').” Adam said: “I choose intellect.” Then modesty and religion said: “We shall come with you, O Adam, as God has commanded us to be with intellect wherever it be.”
The points to be derived from this tradition are:
1. Whatever is disdained by intellect has no place in religion, and one who has no intellect, has neither religion nor modesty, even if he or she spends the nights praying and the days fasting. Henceforth, one Islamic scholar said: “The proper criterion by which we can distinguish between the Prophetic and non-Prophetic tradition is by analyzing its rationale, since that which has no rational explanation is but utterance of Satan.”
2. As long as religion is inseparable from reason or intellect, closing the door of Ijtihád is regarded as closure of the door of religion. Arguably since Ijtihád means setting intellect free, and giving room to deriving Secondary Rules (Furú`) from the Primary Principles (U#úl), and since interdicting intellect is interdiction to religion due to the interrelation between them. In other words, if we call for closure of the door of Ijtihád we will be left with one of two options. Option one is to close the door of religion as a result of the closure of the door of Ijtihád. The second option is to accept the claim that intellect does not support religion, admitting none of its rules, which are neither accepted by the logic of shar` nor by reason.
3. A bigot scholar who preaches the supremacy of any particular creed (Madhhab) is worse than an ignorant (Jáhil) who is not fanatic. That is because in the case of a bigot scholar, his fanaticism is neither for a creed nor for Islam, rather it is fanaticism to the person who is the master of the school of thought. Knowing that the blind support of the person is not supported by reason, it follows that the disagreement with the master of a particular school of thought is neither necessarily a denial of the truths of Islam nor a rejection of the teachings of Islam. In fact, it is dissent with the master and with the mental image that he developed concerning Islam.
Whatever the case may be, we are all aware of the fact that in the first period of Islamic civilization there were neither schools of thought nor sects. Islam was free of any flaw and blemish, and Muslims have been the vanguard of all nations. We are also certainly aware that these sects and creeds have sown seeds of discord among Muslims. They have set up barriers and distances that prevented their attaining to might and treading one path toward one end. As a result, they have created a good atmosphere for the colonialists and enemies of Islam to exploit this division for instigating sedition. The West could never dominate and extremely exploit and subdue the East, if it was not for this disunity and crumbling of forces.
For this reason, the staunch leaders made up their minds to apply the idea of making agreement and consolidating the Islamic community, and striving for its interest with all available means, like opening the door of Ijtihád, and annulling the prevalence of following a certain creed.
The jurists argued that the closure of the door of Ijtihád was necessitated by the fear that if Ijtihád were to be left uncontrolled, chaos and disorder would be the immediate result. For the juniors from among knowledge-seekers and unqualified persons will acclaim authority over it. As a pre-emptive measure, the reformers (Mu#li<ún) sought to cure the disease by exterminating the patient, not by uprooting the disease!
This claim was stated by the early scholars in their books, and reiterated by the later ones without any investigation or study. I am however inclined to believe that the only reason for closing the door of Ijtihád was the ruler’s fear of freedom of speech and freedom of opinion that may challenge him and his entourage, so he resorted to trickery, using -- as usual -- the claim of protecting the religion, while inflicting his rough on freeman disdaining from cooperating with his government as it undertake its debauchery and dissipation acts.
The best evidence for this fact is that the call for reopening the door of Ijtihád has emerged only with the decline of the domination of the foreign and regressive powers, the call remains dependent upon attaining freedom in its fullest meaning.
More importantly, both imitation and submission to the avaricious are but slavery and servitude, which we have experienced for a long time. Now, it is about time to have freedom in our thoughts, as we are being free in our homeland. It is about time to abandon imitating a specific creed and a certain utterance, and to select from among the multitude of opinions of all schools of thought what can comply with development of life, and easiness of Islamic Law. If selecting from among the existing opinions is not an absolute Ijtihád, it may be considered anyhow some sort of Ijtihád.
On this basis, and for the sake of paving the way for selecting from among all the opinions of all the schools of thought, I committed myself to compiling this book, abridging in it all the opinions of the five schools of law: Ja`farí, \anafí, Málikí, Sháfi`í and \anbalí, as presented in their respective sources. These opinions include beliefs that conform to life and achieve justice along with ideas, which must be covered and rejected.
I have disdained from the latter for maintaining the honor of jurisprudence and jurists, and have published the former ones, doing my best to make them easy to understand by every knowledge-seeker, and expound them in a brief and explicit way. On this course, I met with the difficulties that are faced by anyone intending to translate any book from a foreign language to his own language, as the difference between the old method and new method of writing is like that between the Arabic language and any other languages.
It happened that I stopped by some libraries, as I usually do every day, searching for recently published materials where I saw a student from the Tunisian mission who is specializing in the Lebanese University, flipping through books. When his eyes fell upon the book `Ali wa al-Qur’án in my hand, he asked my permission to look into it, but as soon as he read the advertisement on the cover about the book al-Fiqh `alá al-Madháhib al-Khamsah, he rejoiced and said: “We are in dire need for a book like this.”
I said: What for? He replied: “We in Maghreb (a.k.a. North Africa) follow the school of Imám Málik, and he is very strict in matters with which other Imáms deal leniently. We, the youth, whatever be our culture and trends, and regardless of others' opinions and charges against us, never intended to oppose Islam or rebel against its commandments. But we, at the same time, do not desire to be in distress and impediment while applying and abiding by Islam's rules, so in case of facing any trouble in which Málik is strict, we would like to know others' opinions in it, hoping for finding a way out to perform, feeling certain of not perpetrating any forbidden act. But getting acquainted with the fiqh of other schools of law has been infeasible for us, because our scholars ignore or disregard whatever contradicts Imám Málik's decrees. If we refer to ancient books, it will be impossible for us to comprehend them due to the complexity, obscurity and prolixity that lead us nowhere, but in your book we shall find the simplification and facilitation badly needed by every youth.”
His statement pleased me and encouraged me to finish the other volumes. Such comments made me not regretful or sorry for abandoning my earlier decision. Initially I intended in the outset to mention along with every opinion of every school, the proof upon which it was based, including a Qur’ánic verse, or narration, or consensus (ijmá`), or reason (`aql), or a companion's tradition. But I have been recommended to suffice with mentioning the sayings alone, as this being easier for people to comprehend, and a good motive for the circulation of the book, as the proofs can only be recognized by knowledgeable people. It seem as if this saying has drawn my attention to a fact inherent inside me, since a large number of those who acquired fiqh are more concerned with the decree more than with its proof or source, so how about others? Then I changed my mind again. I decided on abridging and exposing the opinions of the five schools of law and abandoning the idea of giving proofs and comments, except in some rare cases. My objective in the final analysis is to produce a book for all people, one that would benefit public as well as the interested scholars.
Those who have done similar work can only appreciate the task of translation and its challenges. This project was especially difficult far exceeding any work I have undertaken before. I heard someone saying: “Writing the Formal Legal Opinions (Fiqh) according to the schools is too easy, as it is just a narrative, no more no less!” Such a statement is similar to the saying: “War is no more than holding a weapon, and coming forth toward battle field, with no consequences!” The fact is that fiqh is an infinite sea, as one matter can be divided into different ramifications, about any of which the schools' opinions may be numerous and contradictory, and rather the opinions of the jurists of the same school, or even the opinions of the same scholar. Someone trying to have full conception of any ethical matter will encounter the severest hardship and suffering, so how about writing the whole fiqh, with its branches: the Acts of Worship (`ibádát) and the Transactions (mu`ámalát) according to all schools? !
When al-’Azhar intended to prepare the book al-Fiqh `alá al-Madháhib al-'arba`ah in 1922, it chose a committee of renowned scholars for this purpose, each writing according to his school. The committee embarked on a task that lasted for years. Finally they managed to compile the Rules without the Proofs, as is the case in this book. While admitting that this work provided me with some relief, it caused me many troubles in numerous matters. For instance I was compelled to search and investigate many new and voluminous and abridged books. This in spite of thirty-three years I have spent studying, teaching and compiling fiqh, so how about one who knows nothing about it except the name?!
While the book al-Fiqh `alá al-Madháhib al-'arba`ah reports every school's opinion separately, as stated in the books of its jurists except what is concurred by all the four schools, this book states together the agreement of two or more schools in one sentence, for the sake of brevity and easiness.
I have never experienced a hardship like that I found in contradiction of transmission, and multiplicity in narration from one Imám about one matter; while one book supposes prohibition, a second one permission, and a third book considers the same matter as an offering. Since my intention was to facilitate the presentation for the readers, so I avoided, as much as possible, reporting various narration, and limited my self to narrating from the previous authors, especially when the narrator being a follower of the Imám he is quoting. I may sometimes report the concurrence of the four Sunni Imáms about an issue being agreed upon by three of them, while two narrations have been reported from the fourth Imám: one concurs with the three and the other contradicts them. So I choose the concurrent one for the sake of narrowing the gap and circle of difference and dispute. But if the narration being concurred by all, I mention the disagreeing one explicitly referring most the time to the four schools: Sháfi`í, \anafí, Málikí and \anbalí by the term al-'Arba`ah" (the four) alone.
As for the Ja`farí fiqh represented by the Imámís, I have reported from it that which received their consensus, and chosen only what is widely known from the issues upon which they differed.
In conclusion I would like to reiterate the statement mentioned in the preface of the book al-Fiqh `alá al-Madháhib al-'arba`ah which was compiled by seven renowned scholars from al-'Azhar. The statement reads: “It is no fault that this book being blamed for any shortage, since perfection is only God’s attribute, but faulty is he who sees the wrong and never guides to the right, and he who guides to the right but never corrects his wrong.”
We implore God, the Exalted, to guide us to the truth, making these pages of benefit for those seeking it, and praise be to Him at first and last.
Muhammad Jawád Maghniyyah
Beirut, October 1st, 1960