"IKHTILAF" IN ISLAMIC LAW WITH SPECIAL REFERENCE TO THE SHAFI'I SCHOOL (1995)

Islamic Studies 34:4 (1995)

 "IKHTILĀF" IN ISLAMIC LAW 

WITH SPECIAL REFERENCE TO THE SHĀFI'Ī SCHOOL

A. QODRI AZIZY

INTRODUCTION

When al-Shafi'i (d. 204/820) fitst came to Egypt, the Egyptians considered him a member of the Maliki school of law. Al-Safadi writes that al-Shafi'i changed his former opinion because, after he had stayed in Egypt, he saw that Malik's opinion had already become a doctrine which was believed as dogmatically as Christ's doctrine was believed. Therefore, al-Shafi'i contradicted Malik to show people that Malik was merely a thinker who could be wrong or right. Al-Safadi tells us that his judgement above is based on al-Shafi’I’s own statement: "1 have never seen [anyone] like the Egyptians who turn 'foolishness' into 'knowledge'; they say in every case, 'this is what Malik said'." Al-Shafi'i had die capacity for purely scholarly and religious considerations to change his opinion; he did not contradict Malik merely for the sake of contradiction. In fact al-Shafi'i was of such humble disposition and so self-denying that he did not even want his works to be attributed to him. AI-Shafi'i's second phrase, which condemned the Egyptians because of their rigid adherence to Malik's opinions, is in harmony with his own way of thinking. Thus, the reason why al-Shafi'i changed his former opinion in all cases is not just to contradict Malik, but rather because of differences of place, time, custom, and so on. We are told that when al-Shafi'i discussed the Successors (Tabi'un), he said: "They were people and we are [also] people {hum rijal wa nahnu rijal). This means that he would not blindly accept what the Successors had already decided; he preferred to have independent views. This attitude will certainly recognize differences of opinion (ikhtilaf) among jurists as legitimate.

What al-Shafi'i practised concerning the different opinions between himself and others, is discussed in his legal thought in his Risalah and Umm. These typically different opinions are later employed by his followers. Ikhtilaf occurred not only among his followers, but also between his followers and himself. Ikhlilaf among scholars has, in fact, characterized Islamic legal thought.

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