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Philosophy and Fundamentals of Sharī’ah for Islamic Finance
SHA0011
Factors Contributing to the Differences of Opinions among the Schools of
Islamic Legal Thought.
As indicated earlier, divergence of opinions in fiqh is inevitable due to the
very nature quranic texts and Prophetic tradition. On top of that, the differences
of opinions is attributed by the following factors :

1. Differences in Methodologies of Uṣūl al-Fiqh

Scholars of various Schools of Islamic Legal Thought differed in the principles
they applied. For instance accepted the rulings of the companions of
the Prophet SAW as a sound basis for Sharī’ah rulings, while others
do not not place such a great reliance on the rulings of the companions.

Some Scholars adopted the principle of unrestricted/public interest
(Maṣlaḥah Mursalah) while the others did not take this principle
as a valid source of law, and this leads to actual differences in
formulating the laws.

2. Authority of Sunnah

Most of the juristic differences among the early scholars can be traced back
to the narration of sayings attributed to the Prophet SAW. A jurist may
receive a Ḥadīth which he considers to be defective, thus preventing him
from using it for making a legal ruling. The following are some possibilities
in this regard:

a. The chain of narration (isnād) going back to the Prophet SAW
may not be weak and may include a narrator who is obscure
or untrustworthy, or whose memory is weak or defective.

b. The isnād may be “interrupted,” that is to say the narrator did
not cite the first authority who had heard the Ḥadīth from
the Prophet SAW.

c. The jurist, especially in the case of a Ḥadīth reported by a single
narrator, may impose certain conditions for the probity of a
narrator which others do not impose. His conclusions and his
judgements on these particular issues may therefore differ from
those of others.

3. Differences in Accepting Particular Sources of Sharī’ah
There are many principles of this kind of which the scholars were at
variance. They differed over the admissibility of using the principles
of “blocking the means to wrongdoing” (sadd al-dharā’i‘), “juristic
preference” (istiḥsān), “presumption of continuity” (istiṣḥāb),
“adopting the more cautious”
(al-akhdhu bi al-aḥwaṭ), “adopting the more lenient” (al-akhdhu bi
al-akhaff), “adopting the more severe” (al-akhdhu bi al-athqal),
“customary law” (`urf), and “local custom” (al-‘ādah). They also
differed on the implications of primary texts, the methods of arriving
at these implications, and what could justifiably be supported from
these texts. In this way, many differences in the field of subsidiary
laws arise.