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FAQ

irsyad usul fiqh 37

Question:

Assalamualaikum S.S Mufti. Can you give an explanation on a legal maxim which states that leaving khilaf is commanded?

 

Answer:

Waalaikumussalam w.b.t,

Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.

The phrase al-khilaf as stated by Fairuz Abadi means “Disagreeing with another person in a particular matter, which means having conflicting opinion from him”. Refer Al-Qamus al-Muhith, al-Fairuz Abadi (1/251).

While al-Jurjani defined khilaf by saying: “Disagreement between two persons to affirm the truth or refute falsehood”. See Al-Ta’rifaat, al-Jurjani. pg. 135

Some scholars give different definitions between the phrase khilaf and ikhtilaf. Among them are Syeikh Ayyub bin Musa al-Husaini in his book al-Kulliyyaat where he says: “Ikhtilaf is something based on dalil while khilaf is something not based on dalil”. Refer al-Kulliyyaat (Hlm. 61).

The same is for the opinion of Dr Salim bin ‘Ali al-Tsaqafi that the jurists (fuqaha’) sometimes use the phrase khilaf for disagreement among the madhhabs and particular sects. While ikhtilaf is disagreement among the ashabs within one madhhab. See Asbab Ikhtilaf al-Fuqaha, Salim bin ‘Ali al-Tsaqafi (Hlm. 18-19)

We are inclined to say that there is no difference between al-khilaf and al-ikhtilaf, in fact, the opinions which differentiate between these two revolve only around the terminologies. And a maxim says:

لَا مُشَاحَةَ  فِي الاصْطِلَاح

There is no discord on terminologies

The past companions always give their best to avoid khilaf by handling the issues with full equity and ethics. This is what is portrayed through the history when there was difference of opinion between Usman bin al-Affan and Abdullah Ibn Mas’ud related to shortening of prayer (qasar) for a traveler. Usman bin Affan was of the opinion of performing prayer by tamam (complete) while Ibn Mas’ud was of the opinion that the prayer should be performed by qasar. Yet, when Usman becomes the imam and Ibn Mas’ud was the ma’mum, Ibn Mas’ud followed him by performing prayer by tamam even when he held the opinion of qasar. So, when Ibn Mas’ud was asked pertaining the matter, he said:

الخِلَاف شَرٌّ

“Dissension is evil,”

Sunan Abi Dawud (1960)

The Definition of Legal Maxim “Al-Khuruj Min al-Khilaf Mustahab

Referring back to the question asked pertaining to the maxim الخروج من الخلاف مستحب which means walking away from khilaf is commanded. We state that it is an accepted and practiced maxim by majority of the Fiqh scholars.

Imam Tajuddin al-Subki said: “Among the famous maxim of the scholars in majority, which the jurists almost include it as an agreed maxim is; walking away from khilaf is prioritized and afdhal”. Refer Al-Asybaah wal-Nazhaair, Al-Subki (1/127).

However, for the Malikites, this maxim is known as ‘Mura’ah al-Khilaf’.

We have alreasy published an in-depth discussion on the maxim ‘Mura’ah al-Khilaf’ in Irsyad Usul Al-Fiqh Siri Ke-7: Huraian Kaedah “Mura’ah Al-Khilaf” Serta Pengaplikasiannya (Irsyad Usul al-Fiqh Series 7: Elaboration on the Maxim “Mura’ah al-Khilaf” and Its Application) which can be accessed through the following link: https://bit.ly/31iXoCe

Some scholars state that there are some conditions on the process of harmonizing the khilaf. Among them:

  • Harmonising the khilaf while not causing other khilaf.
  • Does not contradict with the sahih or hassan Sunnah.
  • Dalil which is the base for a mujtahid in an issue is strong.

Some Examples of the Application of the Maxim Al-Khuruj Min al-Khilaf Mustahab

The following we state some examples in explaining more on the maxim:

First: Retaking Ablution for Those with Salis al-Baul (Urinary Incontinence).

In this issue, the jurists have differing opinions on the ruling of retaking ablution for those with urinary incontinence. Some scholars like the Malikites are of the opinion that retaking ablution for these people for each prayer is Sunnah. While the majority of jurists other than the Malikites are of the opinion that it is wajib (obligatory) to retake the ablution for each prayer for those with salis al-baul except for jama’ prayers (so, it is not wajib to retake the ablution).

Imam al-Mawardi rahimahullah said:

والمستحاضة وَهِي الَّتِي ترى الدَّم فِي غير أَيَّام الْحيض كالطاهر إِلَّا أَنَّهَا تتوضأ لكل صَلَاة فَرِيضَة بعد غسل فرجهَا وَكَذَلِكَ الْمُبْتَلى بالمذي وَمن بِهِ سَلس الْبَوْل

A woman with istihadhah in which she bleeds not on days (period) of haid (mensturation), she is the same as those who are pure. Except that she has to take ablution for each obligatory prayer after she cleanses her private part. The same for those who are tested with abnormal discharge of mazi and those with salis al-baul (urinary incontinence).

Refer Al-Iqna’, Al-Mawardi (pg. 29)

Hence, the way of avoiding the khilaf between the ruling of Sunnah or wajib to retake the ablution is by taking the most ahwath (safe and cautious) action, which is by retaking the ablution for each prayer to be performed for those with this issue.

Second: Tawaf Wada’ for Those Performing Umrah

The jurists (fuqaha’) have differing opinions on the ruling of tawaf wada’ for those performing umrah. Some state that the ruling is wajib (obligatory). This is the opinion held by the majority based on a narration by Ibn Abbas R.Anhuma where the Prophet PBUH said:

لاَ يَنْفِرَنَّ أَحَدٌ حَتَّى يَكُونَ آخِرُ عَهْدِهِ الطَّوَافَ بِالْبَيْتِ

No one should leave (Mecca) until he performs the last circumambulation of the House (the Ka'bah).

Sunan Abi Dawud (2002)

Imam al-Nawawi said: “The most sahih opinion in our madhhab is tawaf wada’ is wajib and it obligates dam (fine) if abandoned”. Refer Al-Majmu’ Syarah al-Muhazzab, Al-Nawawi (8/284).

While some stated that it is only wajib for those performing hajj while it is not the case for those performing umrah. In other words, tawaf wada’ is only Sunnah for those performing umrah.

This is because, by looking into the dalil which obligates it, it refers to performance of hajj and not specifically for those who perform umrah.

Hence, for those performing umrah, then the effort of avoiding the khilaf between tawaf wada’ is Sunnah or wajib is by choosing the opinion which obligates (wajib) tawaf wada’ before leaving the holy land of Mecca.

Third: Wipe Over All Parts of the Head When Taking Ablution

In the issue of wiping head in the process of taking ablution, the scholars differ in term of which part of the head is obligated to be wiped. This is because, they have different opinion on the meaning of the following verse:

وَامْسَحُوا بِرُءُوسِكُمْ

“…and wipe over your heads,”

Surah al-Maidah (6)

The scholars have decided by consensus (ijma’) that wiping head is a fardh (requisite) in ablution. However, they differ on which part of the head is obligated to be wiped into several opinions as the following:

  • Some scholars are of the opinion that it is wajib to wipe all parts of the head during ablution. This is the opinion of madhhab Imam Malik and some other jurists.

Among the arguments of this group is a hadith narrated by Abdullah bin Zaid R.A where he said:

أَتَى رَسُولُ اللَّهِ صلى الله عليه وسلم فَأَخْرَجْنَا لَهُ مَاءً فِي تَوْرٍ مِنْ صُفْرٍ فَتَوَضَّأَ، فَغَسَلَ وَجْهَهُ ثَلاَثًا وَيَدَيْهِ مَرَّتَيْنِ مَرَّتَيْنِ، وَمَسَحَ بِرَأْسِهِ فَأَقْبَلَ بِهِ وَأَدْبَرَ، وَغَسَلَ رِجْلَيْهِ‏

Once Allah's Messenger (ﷺ) came to us and we brought out water for him in a brass pot. He performed ablution thus: He washed his face thrice, and his forearms to the elbows twice, then passed his wet hands lightly over the head from front to rear and brought them to front again and washed his feet (up to the ankles).

Sahih al-Bukhari (197)

  • While some other scholars are of the opinion that it is enough to wipe some parts of the head during ablution. This is the opinion of madhhab Imam Abu Hanifah and Imam al-Syafi’e. They just differ on the necessary area to be wiped from parts of the head. Some said that the wipe is enough with three strands of hair, while some said that it is one fourth of the head and some said half of the head.

The argument used by this group is by stating that the phrase بِ in the verse refers to للتبعيض (some) only.

Hence, if one intends to avoid the khilaf in this issue is by wiping all parts of the head. This is because, the action would fulfil all different opinions on this.

Imam Izzuddin ibn Abd al-Salam divide the process of avoiding khilaf into some parts as follow:

  1. If the khilaf happens between haram and permissibility, then avoiding khilaf is by leaving the action.
  2. If the khilaf happens between wajib and permissibility, then avoiding khilaf is by performing the action with the intention that it is wajib, so that it may be referred to the wajib ruling.
  3. If the khilaf happens between Sunnah and haram, then avoiding khilaf is by leaving the actions which is also prioritized.
  4. If the khilaf happens between makruh and wajib, then avoiding khilaf is by performing the action as a precaution steps from receiving the punishment due to abandoning the wajib. At the same time, performing the makruh actions will not cause harm towards himself.

Conclusion

As a conclusion, we state here that the application of the maxim Al-Khuruj min al-Khilaf is highly encouraged and would result in goodness on oneself. This is because one values the diversity of opinions by choosing the opinion which covers other opinions in a particular action.

Lastly, may Allah SWT bless us with the correct understanding for us in the religion. Ameen.