Opinionism and Umar Ibn Al-Khattab

By: Sayyid Ali Al-Shahristani
Naturally, the continuity of finding faults with the caliph, namely `Umar ibn al-Khattāb, would certainly impair his position and lessen his social status in the view of the Muslims. Furthermore, this would affect the structure of the position of caliphate as a whole. If the caliph allowed the Sahābah in general and the reporters in particular to find faults with him accusing him of ignorance and inaccuracy in the religious laws, they would certainly have the courage to stop in his face directly. It would thus be necessary to provide a new course owing to which the phenomenon of finding faults in the caliph’s verdicts would be eliminated and also the caliph’s deeds and personal judgments would be acceptably effective. In fact, to compare the caliph’s verdicts to the Holy Qur'ān and Sunnah, which would demonstrate the differences between the sources of the Islamic legislation and the caliph’s opinions, would give people the opportunity to criticize him and object to his judgments. As a result, the caliph’s position will be disrespected by people.
On the grounds of the previous consequences, `Umar believed that it is necessary to strengthen the trend of depending upon personal judgments in front of the divine instructions and publicize the concept of Ijtihād among the Sahābah so that he would be excused in any verdict that he would issue. As a consequence, `Umar adopted two conceptions that moved to some of the Muslims thereafter;
(1) the dependence on personal views and
(2) the acceptance of the Sahābah’s personal opinions as authority.
Later on in this book, we will present the historical progression of these two conceptions as well as their actuality. Let us first quote the statement of Muhammad `Abduh, the great Muslim intellectual, regarding the Sahābah’s personal identification of the advantage. He says,
“As if they believed that the origin of a judgment in an issue is to do what is good, not to follow the religious laws, the Sahābah used to issue a judgment that is compatible to their personal identifications of the advantage even if such would violate the Holy Sunnah.”[348]
Shaykh `Abd al-Wahhāb Khallāf says,
“Whenever they could not find a text in the Holy Qur'ān or Sunnah that is related to the issue with which they were dealing, the Sahābah would infer a judgment depending upon their personal views. In their practice of Ijtihād, they rested upon their talents that they had acquired from oral communication with the Holy Prophet as well as their familiarity with the secrets and general principles of the Islamic legislation. They, sometimes, compared the issues about which there was no holy text to similar issues explained in the Holy Qur'ān or Sunnah. On other occasions, they issued judgments depending upon their personal identification of the advantage without committing themselves to any other consideration. On this account, the scope of their Ijtihād in the matters that are not explained in holy texts was very much expansive that it could contain the people’s needs and interests.”[349]
Evidences on the accuracy of the aforesaid quotations are `Umar’s personal verdicts some of which have been previously illustrated. The gentle reader has thus realized the scope of `Umar’s Ijtihād that opposed the actuality of the Islamic legislation. It is thus probable that `Umar’s personal views that were not accepted by the Sahābah acted as motives beyond the issuance of the decision of prohibiting the reporting and recording of the Hadīth. At any rate, the undoubted result in this respect is that both the trends of the adoption of personal opinions and the compliance with the sacred texts perpetuated after the departure of the Holy Prophet.
The trend of the adoption of personal views and the consideration of the Sahābah’s opinions expanded its steps and did not stop at any red line after the departure of the Holy Prophet who was the only one to stop them. Overstepping all bounds, the Sahābah’s personal opinions crept into the issues about which there were clear-cut text from the Holy Qur'ān and Sunnah. To give it a title, this trend should be called ‘Ijtihād and Opinionism.’
Referring to the representatives of this trend, Dr. Muhammad Sallām Madkūr says,
“Imitating the Sahābah in general and `Umar, the caliph, in particular who very frequently replaced some of the religious laws with others claiming having taken the advantage in consideration and interpreted the holy texts in a way compatible to the advantage, the generation that came next issued verdicts that were in violation of the Holy Sunnah, such as the permissibility of pricing of the goods although the Holy Prophet obviously prohibited such. On violating the Holy Prophet’s instruction, they claimed that because people exceeded all limits, they have to be restrained through pricing their commodities.”[350]
Further, `Abd al-Wahhāb Khallāf says,
“When the men of legislation (among the Sahābah) existed in large numbers, disagreement in some of the religious laws occurred. In a definite incident, they gave various opinions. As a matter of fact, such disagreements were necessarily expected, because each one of those issuers of verdicts had his own scope of understanding the holy text and thus his own viewpoint since they did not comprehend the Holy Sunnah in the same degree and, definitely, some of them were present during a certain event from which others were absent. Moreover, the advantages on the basis of which a verdict was issued were not estimated in the same way for the difference in the environments in which those authoritative individuals lived. For these reasons, miscellaneous judgments were issued in a certain issue. The scope of disagreement between the authoritative men of legislation expanded more and more during the second century (of Hijrahh) when a class of mujtahids came into sight in the Muslim community. However, in addition to the three aforesaid reasons beyond the disagreement among the Sahābah in issuing religious judgments, the reasons beyond the disagreement among the mujtahids of the second century were too many. Some of them were related to the sources of the legislation, the various tendencies of the Muslims and the linguistic principles upon which the understanding of the holy texts relied. On this account, the disagreement was not only in the verdicts and the secondary religious laws but also in the bases and plans of the legislation itself. Thus, each group formed a definite sect that adopted certain secondary laws inferred by a special plan of legislation.”[351]
From the previous citation, we conclude that the multiplicity of the centers of giving legal opinions created the disagreements of opinions and Ijtihād. Such a disagreement would possibly occur among the Sahābah or between the caliph and them. Shedding light on this point, Dr. Madkūr says,
“The Ijtihād of the Sahābah was not restricted to analogy; rather it included all the aspects of opinion where they rested upon intuition, nature, and observance of the spirit of the Islamic legislation in addition to a perfect recognition of the rational foundation of opinions and its role in the formation of the religious laws. Hence, when they practiced Ijtihād, they were fully aware of what they were doing. Nevertheless, the aspects of their Ijtihād were miscellaneous; some depended upon analogy, others depended upon the identification of the advantage and so on. The same thing can be said about the rational sources that were given terminological titles later on. It is natural that the Ijtihād that is based upon personal opinions results in disagreements in the viewpoints and variety in the verdicts. When the Muslim jurisprudents separated in the various regions of the Islamic State, they formed the core of the various trends that originated the two schools of Hadīth and personal opinion (Ra’y).”[352]
In the course of presenting the evidences provided by those who deny considering the Sahābah’s opinions as sources of the Islamic legislation, Dr. Dīb al-Baghā says,
“The Sahābah disagreed with each other on several questions, such as the issue of a grandfather’s share with the existence of the testator’s brothers and the issue of a husband’s saying to his wife, ‘Anti `Alayya Harām’ (You are forbidden for me.’ Had the sayings of the Sahābah acted as proofs against the following generations, the proofs of Almighty Allah would have been contradictory and any one of the coming generation would have had the right to follow the course, or verdict, of any of the Sahābah.”[353]
The acceptance of the validity of Ijtihād will make the multiplicity of opinions valid. Likewise, the validity of the disagreement in Ijtihād leads to the validity of accepting contradictory opinions. As he used Ijtihād as the starting point and justification in the understanding of the Sharī`ah, `Umar ibn al-Khattāb should have allowed the others to act upon the same idea so that his Ijtihād would be valid, the others’ words and interpretations would have supported his or, at least, his opinion would have been respected and accepted even unwillingly.
As he ordered Qaradhah to reduce reporting the Hadīth and then permitted the Sahābah to declare their personal opinions, `Umar proved that he only intended to move the subject of the Islamic legislation from the sacred texts to the personal opinions. Some of the Sahābah, however, referred to the inaccuracy of this idea since the right cannot be discerned by intellects -in other words, the right is too broad to be identified by ordinary intellects.- In this respect, Imam `Alī said,
“You have been trapped by confusion. Neither the right nor can the wrong be identified by men. On the contrary, if you realize the right, you will then realize its people.”
Having expanded the circle of Ijtihād, `Umar wanted to grant himself a special standing in the Islamic legislation through permitting the others to act upon their personal opinions. He, the political leader of the Islamic State, understood that he would never be able to pass his personal opinions unless he enjoyed a legislative authority. Undoubtedly, he would always regard himself as the right party because he was the worthiest of legislating due to his position of leadership.
Actually, `Umar, step by step, became the only one who had the right to issue verdicts. A little while after that, he gave himself exclusively full rein to judge depending upon his personal views and to identify the advantage preventing the others from presenting their opinions since his views were always the most acceptable and irrefutable!
As a result, `Umar started identifying the features of the Ijtihād that he had invented so that he would have the lion’s share. He therefore answered the questions without consulting any of the Sahābah and without allowing any other opposing opinion to be in motion. He furthermore promulgated his personal opinions, after he had frequently sought the actual Sunnah, and insisted on his opinions even if they would violate the Holy Qur'ān and Sunnah since he was the most knowledgeable in these fields. He once gathered the Sahābah and said to them, “Do not separate from me, for I am more knowledgeable than you are. I will hear from you and reply.”[354]
He also did not allow `Ammār ibn Yāsir and other Sahābah to remind him of what he had done during the Holy Prophet’s lifetime.
Al-Nassā’iy narrated that a man came to `Umar and asked what he would do after he met the major ritual impurity (Janābah) while he had no water (with which he should perform the ritual ablution) at all. “Well, you should not perform the prayer such being the case,” answered `Umar.
`Ammār then reminded `Umar of a similar incident that occurred to him during the Holy Prophet’s lifetime. He said, “We were on a function when Janābah occurred to both of us. You then stopped offering the prayer while I rubbed my organs of ablution with dust and then offered the prayer. When I told the Holy Prophet about that, he said, “What you have done was sufficient. Teaching me the appropriate way, the Holy Prophet beat the dust with one hand then blew at it. He then rubbed his hand with the other and passed them over his face.”
Having listened to this incident, `Umar said, “I do not know what that is.”
`Ammār said, “If you wish, I will not tell it to anyone else.”[355]
This narration shows that `Umar did not decide that one on Janābah should perform the Dry Ablution (Tayammum) instead of the ordinary ablution; rather he permitted such individuals to neglect offering prayers until they find water.
Commenting on the aforesaid narration, al-`Ayniy says that `Umar did not decide the Dry Ablution for those who are on Janābah. This is proven by `Ammār’s saying to him, “You did not offer the prayer.” `Umar dedicated the Dry Ablution to the minor ritual impurity and, following his Ijtihād, issued that one on Janābah should not perform the Dry Ablution as substitute.[356]
Commenting on the incident, Ibn Hajar confesses that `Umar’s opinion in the issue is very famous.[357]
On the authority of al-A`mash, al-Bukhāriy has recorded that Shaqīq said: I was sitting with `Abdullāh and Abū-Mūsā al-Ash`ariy who said, “How is it acceptable for you to decide for one who is on Janābah and cannot find water of a whole month to stop offering the prayers until he finds water? Then, what do you say about the holy verse in the Sūrah of al-Mā’idah that reads,
‘And if you are sick or on a journey, or one of you come from the privy, or you have touched the women, and you cannot find water, betake yourselves to pure earth and wipe your faces and your hands therewith. [Holy Qur’ān: 6/6]’?”
Answering him, `Abdullāh said, “If people were allowed in such cases, they would certainly perform the Dry Ablution even if water would be a few steps away from them.”
“So, you have decided that for this reason only, have you not?” asked Abū-Mūsā.
“Yes, we have,” answered `Abdullāh.
Abū-Mūsā said, “Have you not heard what `Ammār said to `Umar about this issue when… etc.”[358]
The aforementioned narration has proven `Umar’s violation of the Holy Qur'ān and the Sunnah when he issued such verdicts because of which `Ammār ibn Yāsir and Abū-Mūsā al-Ash`ariy, two of the grand Sahābah, objected; and the Muslim jurisprudents have found strange the rulings that were created by `Umar. From this cause, it is definitely unacceptable to regard such verdicts and personal opinions as laws of the Islamic legislation and to argue that the Sahābah had the ultimate right to use their personal views in the religious issues and to define the religion as whatever was said by those Sahābah, even if it violated the Holy Qur'ān and Sunnah!
Supposing that the aforesaid suppositions had been true, `Umar would not have had the right to order `Ammār, using words of scolding and warning, to hide that issue because, according to the supposed opinion, `Ammār concluded the religious ruling from the sacred text and from what he had heard from the Holy Prophet in addition to the spirit of the Islamic legislation that he had very well discerned, for he was one of the grand Sahābah. `Umar thus should not have objected to him; rather he should have respected `Ammār’s opinion. The same thing can be said about the other Sahābah; had all the Sahābah had the right to act upon their personal opinions, `Ammār, Abū-Mūsā, and the others should not have objected to `Umar as regards the issue.
I should thus wonder whether `Umar had not heard the narrations of Abū-Hurayrah, Abū-Dharr, and the other Sahābah concerning the Dry Ablution and the many narrations that reported from the Holy Prophet the necessity of the observance of the obligatory prayers that must not be stopped under any circumstance. In any event, sufficed to us is the following narration of `Imrān ibn al-Husayn, the grand companion of the Holy Prophet:
The Holy Prophet, once, asked a man the reason for having not joined the Congregational Prayer.
“I am on Janābah and I could not find water,” answered the man.
The Holy Prophet instructed, “You should have used dust (to perform the Dry Ablution). It is sufficient in such cases.”[359]
All the previous narrations prove that `Umar was inaccurate in this issue and, accordingly, was not more experienced than others in the field of the religious issues, as was later on claimed by him, and was not marked with such an unparalleled mentality that enabled him to see what others could not see, as claimed by Dr. Nādiah al-`Umariy and her likes.
Not only did `Umar issue inaccurate religious laws, but also he issued various verdicts in the same issue. In this respect, Mas`ūd al-Thaqafiy is reported to have said,
`Umar, once, issued that the paternal half-brothers, the mother, and the maternal half-brothers of a testator should be the partners in one-third of the legacy. When a man reminded him that he had issued another verdict in the same question, `Umar answered, “Well, that verdict was for that occasion and this verdict is for this one.”[360]
These narrations confirm that `Umar worked for sketching the principles of his own jurisprudence regarding it as the only one that should be adopted. This view was in fact derived from the circumstances that he had to experience; yet it extended after him so largely that some of the Muslims have decided to regard the Sahābah’s opinions as above the Words of Almighty Allah. In this respect, Dr. Madkūr says,
It is undeniable that all the religious rulings during the lifetime of the Holy Prophet were derived from the Divine Revelation; and this rule has not been violated except by those who have argued that the Holy Prophet had the right to depend upon his personal opinions in the issuance of religious verdicts. However, al-Dawālībiy, in al-Madkhal ilā `Ilm Usūl al-Fiqh (A Preamble to the Islamic Jurisprudential Fundamentals), claims that the Holy Prophet founded Ijtihād as the third source[361] of the religious laws. This is in fact not accurate. Ijtihād was not regarded as source of the Islamic legislation during the Holy Prophet’s lifetime.[362]
The followers of the Caliphate School have furnished a justifying analysis for `Umar’s opinions that violated the Holy Qur'ān and Sunnah by different ways.
If truth be told, `Umar’s having invited the Muslims to adopt his personal opinions and to stop reporting and recording the Hadīth was a political necessity imposed on him by the social reality, for the Holy Prophet did not say any single word in this respect. Regarding the prohibition of reporting and recording the Hadīth, had the Holy Prophet said anything about it, `Umar would have certainly reminded the Muslims of it and have betaken it as his argument. Yet, he declared his responsibility alone for this decision.
It was the surrounding conditions, some of which have been previously discussed, that forced him to invent this view and violate the sacred texts. On this account, `Umar’s objectional situations with the Holy Prophet can be explained in the same way. In the pre-Islamic era, `Umar practiced some personal competences that he wanted to expand in Islam with the Holy Prophet. Yet, the difference between the two ages is extremely big.
It is also worth mentioning that some scholars have denied this fact regarding `Umar as one of those who committed themselves to the Holy Prophet’s practice. For instance, it is narrated that while he was standing on the Rukn of the Holy Ka`bah, `Umar said, “I do realize that you are no more than a rock that neither harms nor is useful. But unless I saw my dear, the Holy Prophet, kissing and touching you, I would never kiss or touch you.” He then approached and kissed it.[363]
It is also narrated that Ya`liy ibn Umayyah, once, was with `Umar ibn al-Khattāb when he took his hand to touch the Rukn. “While you were circumambulating the Holy Ka`bah, did you see the Messenger of Allah touching it?” asked `Umar.
“No, I did not,” answered Ya`liy.
`Umar commented, “So, let this thing. You should have in the Messenger of Allah an excellent example (i.e. you should imitate him in everything.)”[364]
Although such text cannot refute the fact that `Umar founded and practiced Ijtihād so expansively, they can prove that he did not intend to violate the sacred texts through adopting his personal opinions; rather he planned for another thing.[365] By notice of the question that `Umar, through words and instructions, confirmed the necessity of adherence to the Hadīth and negligence of personal opinions and the question that he did depend upon his personal opinions so expansively that he had to violate the sacred texts, one can conclude that it was the circumstances that forced him to adopt such a trend due to which he, intentionally or intentionally, had to violate the Holy Sunnah. The perpetuity of the trend of finding faults with the caliph would have definitely created a gap between the political and scientific authorities of the Muslims which, as a result, would lead to the Muslims’ abandonment of the habit of resting upon one person only, as was followed during the Holy Prophet’s age, as well as their disrespect to that authority’s spiritual standing. Advancing as a pretext the identification of advantage, they have argued that the personal opinions of the Sahābah can stand as a third source of Islamic legislation besides the Holy Qur'ān and Sunnah. Particularization has occurred even to this point; the opinions of Abū-Bakr and `Umar were regarded as the worthiest of being followed according to Hadīths that they have reported from the Holy Prophet.
All the Muslims realized that the ruling of any new incident would be deduced from the sacred texts and the Holy Prophet’s words, deeds, and confirmations and, in this field, nobody at all is allowed to issue personal verdicts. Because the caliph did not comprehend all the words of the Holy Prophet or did not have the capacity of interpreting them, he founded analogy to act as the justification of his personal opinions so that the others will say that the caliph’s opinion was based upon a definite source of the Islamic laws.
Thus, Ijtihād has become such a familiar thing for the Muslims that it could be practiced by all the Sahābah taking into consideration that some of them issued verdicts originated from personal views while the others’ verdicts were based upon the sacred texts although they did not accept reporting anything except the Holy Qur'ān or the Holy Prophet’s words and practices. Such being the case, those Sahābah worked in the frame of the accurate deduction from the source of the Islamic legislation through following nothing but the proper ways that take to the exact denotations of the sacred texts and, thus, this is not regarded as personal opinions.
Nevertheless, the truth is something else; the legislation of Ijtihād was no more than a political step taken by `Umar so as to stop any criticism of his verdicts and make everybody follow him. In this respect, it has been narrated while Abū-Mūsā al-Ash`ariy informed people about the legality of the temporary marriage, one of the attendants interrupted him saying, “Slow down in issuing such verdicts! You do not know what Amīr al-Mu'minīn, `Umar, has decided in this matter.” As he was asked about the matter, `Umar answered, “I know that the Holy Prophet and the Sahābah practiced the temporary marriage. Yet I dislike for people sleeping with their women under the trees. Then, they will come to the Hajj with wet heads.”[366]
This wording and its like confirm the idea of the religious laws’ having yielded to `Umar’s personal opinions. Thus, although he was one of the grand Sahābah, Abū-Mūsā al-Ash`ariy could not inform about the legality of the temporary marriage because he did not know the caliph’s situation about it. He should have waited until a decree would come from `Umar. Furthermore, `Umar condemned others because they had issued personal verdicts. He said, “How do you issue verdicts while you are not the leader? None should enjoy this right except the leaders.”[367]
After the investigation of the accompanying conditions of the Islamic legislation, it has been possible to say that the claims of regarding the Sahābah’s personal views as proofs and the taking advantage of the concept of the Holy Prophet’s Ijtihād, such as his inaccuracy in the issues of the redemption of the prisoners of the Battle of Badr, the offering prayers to the body of a hypocrite, and the fabrication that he said, ‘I am no more than an ordinary mortal. If I instruct you about a religious question, you should obey; but if I instruct you out of my own opinion, you should not, because I, like any other mortal, may be right or wrong,’[368] as well as similar things—all these were no more than worthless claims sketched in order to support `Umar’s personal views and to justify his decisions. When the caliph consulted the Sahābah about a religious question or when the Sahābah asked him about such an issue, this meant that everybody desired to identify the very decision of Almighty Allah and the Holy Prophet in that question. Accordingly, had the personal views of `Umar been regarded as sufficient proofs for issuing religious laws, the Sahābah would have followed him and would not have objected and reminded him of the Holy Prophet’s decision in that respect and he himself would not have retreated on many occasions. Obviously, the Sahābah’s objections to `Umar and to each other prove that the so-called ‘Sīrat al-Shaykhayn’ (the conducts of Abū-Bakr and `Umar) was not taken as proof by the first generation of the Muslims up to the foundation of the Shūrā Committee. Had the Hadīth that reads, ‘Follow the two who will come after me—Abū-Bakr and `Umar’ been true, the Sahābah would have certainly adhered to it and would not have objected to Abū-Bakr and `Umar on many occasions.
In the course of presenting the evidences provided by those who deny considering the Sahābah’s opinions as sources of the Islamic legislation, Dr. Dīb al-Baghā says,
“Unanimously, the Sahābah who enjoyed the right of Ijtihād agreed upon the permissibility to disagree with each other. As a result, neither Abū-Bakr nor did `Umar object against those who disagreed with them on religious issues;[369] rather they asked each mujtahid to adopt his personal views. Had the Sahābah’s opinions been within the sources of the Islamic legislation, it would have been obligatory upon each of them to follow the other. This is of course impossible.”[370]
As a matter of fact, people wanted to know the conducts of the Holy Prophet, not Abū-Bakr and `Umar. Yet, the caliph did not know all the aspects of the Holy Prophet’s conducts. Therefore, he had to face a serious problem for which he should have found a solution. The Sahābah, through reporting and recording the Hadīth, would reveal before the people their caliph’s weak opinions and detachment from the Islamic legislation; and this would naturally do wrong to the fresh entity of the caliphate through making a separation between the political and scientific leaderships, which would serve neither the general situation nor the caliph’s decision. As a result, it became necessary to put a plan and sketch a course that would take the caliph out of this ordeal. First of all, `Umar adopted the claim that personal opinions and analogy can stand as proofs on the validity of a religious law. Although he had denied these two matters, `Umar adopted them again since they acted as supports for issuing personal opinions. We have previously cited some examples in which the Sahābah used the styles of simile and exemplification in order to convince `Umar of their objections to him, such as the narration of Abū-`Ubaydah who said to `Umar ‘Is it lawful to kill a master as retaliation for his having killed his slave?’ and Zayd ibn Thābit who likened the testator to a tree… etc. Hence, analogy and simile were the rational exit that some people have taken as courses to the recognition of the religious rulings while the Sahābah had adopted them for convincing `Umar who also adopted them, though he had concentrated on analogy, for convincing people of his personal views. In his epistle to Shurayh, `Umar says,
“You should judge according to the Book of Allah (the Holy Qur'ān) and nothing else. If you face an issue whose judgment is not existing in the Holy Qur'ān, you should move to what the Messenger of Allah had decided. If you face an issue whose judgment is existing neither in the Holy Qur'ān nor was said by the Messenger of Allah, you should judge according to the consensus of people. If you face an issue whose judgment is existing neither in the Holy Qur'ān nor in the Sunnah nor has been mentioned by anyone, you should then either use your own opinion or suspend it. In fact, I think it will be better for you to suspend.”[371]
In a similar epistle, `Umar says to Abū-Mūsā al-Ash`ariy,
“You should first recognize the matches and examples of an issue so that you will compare one to another. Afterwards, you should follow the most similar to the right.”[372]
Ibn Hazm doubted that `Umar had sent the aforesaid epistle to Abū-Mūsā al-Ash`ariy and accepted the one directed to Shurayh with little reservation.[373] Dr. Nādiah al-`Umariy says,
“Although `Umar ibn al-Khattāb used the term of analogy in his epistle to Abū-Mūsā, these terms and rules were not common during that period.”[374]
Although analogy, in its terminological concept, was used many ages after the Rāshidite Caliphate, the results of its seeds and origins emerged clearly with Abū-Bakr and `Umar chiefly. This fact cannot be denied except by unreasonable contenders. Whether he did or did not use analogy as a term, `Umar practiced and applied it in his jurisprudential opinions. The present critiques of the methodology of Abū-Bakr and `Umar and their fans as regards the sources of the Islamic legislation were not unnoticed by the majority of the Sahābah; rather many of them, on many occasions, opposed the personal opinions, analogies, and the so-called identifications of the advantage on the grounds of which many of the religious laws were modified, suspended, or distorted. Moreover, having not been sufficed with opposition, condemnation, and finding faults, some of the grand Sahābah declared a general rule, though has been mentioned by both the Holy Qur'ān and Sunnah, saying that it is unlawful to use personal opinions in the religious questions because any opinion that is not deduced from the two sources of the Islamic law will definitely indicate imperfections of the code of the divine law and the conveyance of the Holy Prophet. No Muslim would ever claim such imperfections. It will also indicate that the Sahābah recognized a general law that had not been realized by the Legislator; or that some religious laws had been concealed from the publics; or that some of the Sahābah recognized the laws that the conveyor, namely the Holy Prophet, had not shown to people! In fact, some of these indications contributed greatly in the materialization of the concept of Ijtihād and personal opinions (Opinionism).
Because the imperfect mentalities of human beings cannot comprehend all the advantages of the rulings, Almighty Allah has not granted anybody the right to issue judgments. It is He, the All-knowing of what is good and what is bad, Who is the only source of all laws.
Thus, the code of the Islamic law is perfect and meticulous; and all of its laws have been demonstrated through the aspects of identification to which the Holy Prophet guided the choice ones. It is thus the mission of those whom are described as ‘firmly grounded in knowledge’ (al-rāsikhūn fī’l-`Ilm) to show the religious rulings to the people and to deduce them from the Holy Qur'ān and Sunnah as exactly as commissioned by Almighty Allah avoiding depending upon their personal identifications of the advantage and the tendencies of their imperfect intellects.
In addition to many of the grand Sahābah, Imam `Alī and `Abdullāh ibn Mas`ūd declared this fact when they affirmed that men’s understandings are too short to realize the purposes of the divine legislations; they (the people) therefore think that a definite law is not found in the Holy Qur'ān. In this respect, Imam `Alī is reported to have said,
“The knowledge of all things is existing in the Qur'ān; yet, men’s intellectualities are too short to recognize it.”[375]
`Abdullāh ibn Mas`ūd is also reported as saying,
“The judgments of all questions are shown in the Qur'ān; yet, our intellects are too short to realize them. Almighty Allah says:
And We have sent down unto thee (also) the Message; that thou mayest explain clearly to men what is sent for them. [Holy Qur’ān: 16/44]”[376]
The aforesaid quotations prove that all the religious laws are existing in the Holy Qur'ān and the Holy Prophet is commissioned to show them to the people; therefore, Almighty Allah has ordered the believers to refer to the Holy Prophet. He says,
“O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination. [Holy Qur’ān: 4/59]”
This holy verse also confirms that every matter of dispute is existing in the Holy Qur'ān and Sunnah. Had this not been accurate, Almighty Allah would not have ordered us to refer to the Holy Prophet since it is illogic to refer to the unqualified.
Rejecting completely the arguments of Ismā’īl Ad-ham and Ahmad Tawfīq Shawqiy and their likes who have called for adherence to the Holy Qur'ān and negligence of the Holy Sunnah, I just want to hint at the point that it was possible for the mindful Sahābah who lived with the Holy Prophet to conclude the religious law from the Holy Qur'ān; and when this was arduous, he would find it in the Holy Sunnah. As a general rule, all the religious rules are existing in the Holy Qur'ān and Sunnah; it is thus impossible to refer to personal views or analogy. If a Sahābiy could not deduce the law, this would not mean that the law did not exist there, because if he referred to the other experts, he would find the answer. Many examples have been cited on `Umar’s having referred to the Sahābah when he could not recognize a religious ruling. It is thus unacceptable for `Umar to say in his instructions to Shurayh, “If you face an issue whose judgment is existing neither in the Holy Qur'ān nor was said by the Messenger of Allah, you should judge according to the consensus of people.” Not all the religious laws that which we ignore were not explained by the Holy Prophet; therefore, `Umar should not have instructed his official to act upon his personal opinions. Too many are the narrations that have carried warnings against dependence upon personal opinions. Having contradicted his instruction to Shurayh, `Umar said on another occasion,
“O People: Trust not your opinions about the religious affairs. I used to object to the Messenger of Allah out of my personal view… On that day when people of Makkah and the Messenger of Allah agreed to sign a truce, they rejected his suggestion to begin the truce with the phrase ‘Bism-illāhir-rahmānir-rahīm (In the Name of Allah; the All-compassionate, the All-merciful)’ claiming that they had not yet believed in the Messenger of Allah. They insisted to write down instead, ‘Bismik-Allāhumm (In Your Name; O Allah)’ Although the Messenger of Allah accepted, I rejected ferociously until the Messenger of Allah said to me, ‘I have accepted and you are still rejecting!’ Only then did I accept.”[377]
From the following saying of `Umar himself, it is understood that one who depends upon one’s personal views in the issuance of the religious laws is in fact unacquainted with the Holy Sunnah:
“Beware the Opinionists, for they have become the enemies of the Sunnah. When they have been too short to comprehend it or to catch it, they have vied with it using opinion; they had therefore gone astray and misled the others.”[378]
This is extremely ironic! `Umar, once, defended and legislated the resting upon personal opinions in the face of the Holy Prophet’s words and deeds so intensely that he prevented them from carrying out the Holy Prophet’s order of bringing a paper and a pen to write down his final will and claimed that the Holy Messenger of Allah was hallucinating!
The one and only explanation of such ironic situations is that `Umar passed through two different stages each of which imposed him to take a definite situation.
In case there are several aspects of analogy, what should an analogist, on the criteria of `Umar, do to choose the one more acceptable by Almighty Allah? If analogy has been one of the sources of the Islamic legislation, the one whom should be sentenced to whipping penalty must be the accuser of atheism rather than the accuser of fornication. Similarly, there must be no difference in the ruling regarding the discharge of semen and the discharge of the menstruation blood as regards the re-performance of the obligatory prayer since the ritual bathing (ghusl)must be done for both the discharges. In the same manner, the pre-seminal fluid, the urination, and the semen are having separate rulings while their source is the same. As a religious ruling, it is unlawful to look at women’s hairs while it is lawful to look at their faces. The ruling concerning the hunting of games is the same whether it was intentional or unintentional while the ruling of intentional murder is different from the unintentional. All these religious rulings are against analogy.[379]
Beyond dispute, analogy is generally based upon conjecture against which the Muslims are warned according to Almighty Allah’s saying:
“And pursue not that of which thou hast no knowledge. [Holy Qur’ān: 17/36]”
“But they have no knowledge therein. They follow nothing but conjecture; and conjecture avails nothing against Truth. [Holy Qur’ān: 53/28]”
Is analogy not based upon the difference of views about the religious laws; while there must not be any contradiction between the religious laws?
Al-Wāfi al-Mahdiy says,
“The Sahābah rested upon analogy. As they elected Abū-Bakr as the successor of the Holy Prophet, they rested upon the incident that the Holy Prophet had appointed Abū-Bakr as his representative in the congregational prayer. Hence, they said, ‘We must accept for leading our worldly affairs the one whom the Holy Prophet had accepted for the religion.’ Abū-Bakr, too, rested upon analogy; he compared the zakāt to the obligatory prayer and said, ‘I will certainly fight against anyone who differentiates between the prayer and the zakāt.’ When he appointed `Umar as his successor, Abū-Bakr compared the will to the contract.”[380]
Although this topic necessitates more presentation, let us suffice with this amount so that the gentle reader will have a thorough view about the conceptual trends during the first age of Islam and identify the roots of the fundamentals of the Islamic jurisprudence.