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Crucial issues of Islamic jurisprudence 
By Hakim Zillur Rahman Qasmi

Over the last few years the Islamic Fiqh Academy (New Delhi) has rendered yeoman service by introducing new generations of Muslims to the large body of work in the tradition of the four universally recognised imams of Sunni Islam—Imam Abu Hanifah, Imam Malik, Imam Shafi'ee, and Imam Ahmad ibn Hanbal.

Originally, Sunni Islam used to interpret the religious laws with reference to works of nine imams, which over the years and centuries got codified, condensed and confined to the four schools of thought propounded by the above-mentioned imams, the first two of whom lived in the second century Hijrah, while the other two (Imam Shafi'ee and Imam Ibn Hanbal) lived in the third century Hijrah.

In recent years, one comes across a hardening of attitudes in certain sections of followers of the four imams vis-à-vis each other, as well as between the followers of the imams and Salafis, who don’t have any officially declared preference for any single imam.

The Hanafis of the Subcontinent go by the dictum of the great 19th century scholar Shah Waliullah Muhaddis Dehlavi, who ruled that ordinary, illiterate Muslims would go astray if they did not firmly follow one of the four imams in interpreting the Shari'ah. The ulema, however, had a wider choice, he said. In fact, the ulema belonging to one school of jurisprudence have frequently referred to and followed the opinion of another school on different issues. Even the imams often followed other imams on certain issues, which created the universal consensus that all the four schools of Islamic jurisprudence (fiqh) are equally valid.

This was also Shah Waliullah’s position, whose following is reflected in Deoband, Nadwatul Ulema and an entire spectrum of Islamic seminaries and body of thought all over the Subcontinent. That is why when some of the recent rulings of the Islamic Fiqh Academy were assailed as manifestation of "kattar Hanafiat" (fanatical Hanafiism) one was forced to look into things. To begin with, one can hardly find any "kattarpan" (extreme views) in the long deliberations of the academy, which drew flak from certain quarters for its recent observations. The following three are major ones:

(I) INTEREST ON LOANS It has been erroneously alleged that the academy has legalised giving and taking interest on loans and deposits. This refers to a decision taken at a seminar organised by the academy at Hamdard University, New Delhi from Dec. 8-11,1989. The seminar was firmly of the view that both giving and taking interest was illegal in Islamic Shari'ah. However, there was one clear distinction between giving and taking interest on loans and bank deposits. Taking interest was illegal and forbidden per se, while giving interest on loans was illegal as a cause of perpetuation of the system of usury.

The seminar ruled that while taking interest was illegal (including on bank deposits) giving interest on loans could be allowed in certain severe conditions of compulsion. Believers intending to take loan against interest had to consult ulema detailing their particular situation to know whether agreeing to pay interest (and get a bank loan) was permissible or not in their particular condition.

As for taking interest on bank deposits, the ulema said it was forbidden. Yet they advised believers not to leave their interest on deposits with the banks. That money could be spent on the poor and destitute without expecting any reward for it from God. Some ulema thought it could be spent on general welfare activities also, while others thought it should be confined to only the poor and destitute. One thing was clear: such money should never be spent on mosques or affiliated work. The holy Qur'an is quite emphatic on the issue of interest (Surah al Baqrah, Surah Aale-e-Imran, Surah Rome).

If some ulema thought that giving interest also was as firmly forbidden, that showed the urgency of creating an interest-free economic system for the community to mitigate the problem and meet its dire needs. Now, one wonders where is the "fanatical Hanafiism" we have been hearing about so often of late.

(II) LIFE & GENERAL INSURANCE The other topic of fierce controversy is life and general insurance. The mistake occurred at the seminar because of a lexical problem: in Urdu every insurance is called bima. The ulema, deeply worried over recurring losses of Muslim property in communal riots, wanted to ensure that Muslims got compensation for their property destroyed by politically motivated rioters. Property insurance also worked as a deterrent against rioters because they knew that if Muslims were compensated for their losses, the rioters’ goal of economically crippling them would not be met. However, when it comes to life insurance, Islamic position is different: Life cannot, and should not, be insured. I confirmed it with major muftis of India and found that the lapse occurred because of the lexical confusion (that is, both life and general insurance being called bima in Urdu). 

As it is, two different sets of organisations work in the two different areas of insurance: Life Insurance Corporation of India for life insurance; Fire and General Insurance, New India Assurance Co. and National Insurance Co. for the other category.

There is every possibility that IFA would rectify the anomaly in its next seminar.

(III) DIVORCE IN SENSELESSNESS This is yet another issue on which IFA has been unnecessarily dragged into controversy. The seminarists were virtually divided in two equally numerical halves on the issue whether a man in altered state of consciousness (under the influence of something forbidden like alcohol, psychotropic substances or under the influence of some legally permissible medication or other cause) pronounces talaq should be taken as really having divorced or not. There were 24 ulema in a written declaration said divorce would not occur. These included the late Maulana Qazi Mujahidul Islam Qasmi, then chief of Muslim Personal Law Board, and Maulana Syed Nizamuddin, head of the prestigious Imarat Shari'ah, Bihar and Orissa, besides quite a few other eminences. This declaration was supported by more than 50 other ulema.

The understanding on this side of the legal opinion was that a man who is not in full control of his senses cannot reasonably be held responsible for his deeds. This is the position in democratic societies all over the world, including in non-Muslim societies.

This opinion also draws its sustenance from an important Hadith, narrated by Hazrat Ali, the fourth caliph, which says that the significance of an act lies in the intent behind the act. A person in an altered state of consciousness hardly knows his own intent with any degree of clarity. This contention was supported by the third caliph, Hazrat Usman and caliph Umar Abdul Aziz that divorce under the influence of alcohol would not count.

There were only 20 scholars on the other side, some of them well-known, who were of the opinion that a divorce occurred nonetheless. They too had their reasons.

Now, one wonders where is the "kattarpan" (extreme views) in all this. In fact, nothing could be more democratic and resilient. Interestingly, what the ulema had done was nothing new: even the major companions of the Prophet (PBUH) were divided on this issue. It is quite reassuring that Islam considers dissenting opinion a special favour of God to Muslims, a boon. The Prophet (PBUH) himself had observed that disagreement of views (on details) among Muslims was a blessing of God.

All this has to be taken in the light of Sunni Islam understood as ahl al Sunnah wa al Jamaat. Ahl al Sunnah implies that the ulema would refer to this great body of thought produced by the above four schools to come up with appropriate and practical solutions for religious issues in the light of the Qur'an and Hadith while the wa al Jamaat part means that the majority opinion of ulema would decide unprecedented and difficult issues in the Islamic spirit.

Finally, my humble advice to our critics: There is no disagreement on the matters of faith between us (thank God), and the dissenting opinion on details should be taken as the blessing that it is. Also, we are not chained to the Hanafi (or any other) doctrine forever. For instance, see the IFA’s opinion on a woman’s right to remarry whose husband has gone missing for years. That opinion is not a "kattar Hanafi" opinion at all, but refers to another imam. In fact, there is no "kattarpan" in Islam, which avoids extremes and supports the via media (Greek for middle path), which in Arabic is translated as awsat or wasat.
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