IBN H.AZM'S CONCEPT OF IJMA' (CHAPTER II)

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Furthermore, Ibn H. azm contends that there are bad people in Madīnah as well as in other cities. For instance, he maintains that in his time Madīnah was inhibited by the extremist Rawāfid.

(Deserters).131 Based on this contention, the agreement of this kind of people could not be accepted, in Ibn H. azm’s view, in spite of their living in Madīnah.

As for the validity of good people living in Madīnah, whom the Mālikīs claim to have special privilege, Ibn H. azm refuses this stand and wonders where they got this privilege which was not available to the people of other cities. 132 Just as he refutes the first argument advanced by the Mālikīs, so he does with the remaining arguments. Ibn H. azm maintains that the s.ah.ābah knew more about the ah.kām (sing. h.ukm) put forward by the Prophet than the people of Madīnah. They knew the Prophet’s last deeds, they knew the nāsikh and mansūkh without any preference whether they lived inside or outside Madīnah. To refute the idea that any h.ukm could not be unknown to the people of Madīnah who were the majority of the s.ah.ābah, Ibn H. azm contends that this could only occur if his opponents find an issue reported by all of the s.ah.ābah who were in Madīnah, and every one of them gave his legal opinion on it. This, in Ibn H. azm’s view, did not happen. There were legal opinions given by some of them. In this case, it is possible, according to Ibn H. azm, that a h.ukm given by the Prophet was not known by a group of s.ah.ābah, but known by one or more among them. This is significant, because the element of majority is not actualized and cannot be applied to Madīnah alone. Moreover, the s.ah.ābah might stay in or leave Madīnah.133 Ibn H. azm contends further that the above ijmā‘ is based either on ijtihād or tawqīf from the Prophet. If it were ijtihād of the s.ah.ābah or the people of Madīnah, Ibn H. azm rejected ijmā‘ based on ijtihād; if it were based on tawqīf, Ibn H. azm argues that should a h.ukm be known by some s.ah.ābah inside Madīnah, they must have informed

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people outside the city, so that the knowledge of people inside and outside Madīnah becomes equal. Had not they done so, then their ‘adālah would become nullified, and they would become subject to the curse of Allah. Ibn H. azm is referring to the Qur’ānic verse:

“Those who hide the proofs and the guidance which We revealed, after We had made it clear in the Scripture, such are accursed of Allah and accursed of those who have power to curse.”

(Qur’ān 2:159).

Since Allah protects them from this character, Ibn H. azm contends the necessity of ijmā‘ of the people of Madīnah becomes void.134 Ibn H. azm rejects the argument of the Mālikīs and maintains that the Mālikīs are at fault because they adhere blindly to the opinion of their imām, i.e., Mālik ibn Anas (d.

179/795).

One of many examples given by Ibn H. azm is that ‘Umar read (chapter 84) and (chapter 32) of the Qur’ān while he was delivering his khut.bah (Friday sermon), and then he descended from the minbar (pulpit) and prostrated, followed by the people of Madīnah. This practice, according to Ibn H. azm, was not followed by the Mālikīs.135 Moreover, Ibn H. azm argues, most of the forty issues which are considered by Mālik as the ijmā‘ of people of Madīnah are disputable among the people of that city themselves.136 It should be noted that al-Sarakhsī, like Ibn H. azm, rejects the position taken by the Mālikīs on the same ground. Though al-Sarakhsī accepts the merits of Madīnah, yet he maintains that these h.adīths apply exclusively to the age of the Prophet. As for

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the other ages, al-Sarakhsī rejects the merits of its people. He maintains that in his time there is no place in the Muslim lands where people have so less knowledge, are so ignorant, and so far removed from the motive of goodness than that of Madīnah. The h.adīths mentioning the merits of Madīnah, in al-Sarakhsī‘s view, refer to its condition in the time of the Prophet when the pilgrimage was enjoined, where Muslims gathered in the city, while bad people and apostates did not settle there. Al-Sarakhsī argued further, that the place could be protected though the people who were living in it were not on the right way. The example given by al-Sarakhsī was the condition of Makkah during the Year of the Elephant, when Allah protected the city from the invasion of Abrahah and his troops, though its inhabitants were idolaters.137 In spite of Ibn H. azm’s attack on this type of ijmā‘, the opinion of the people of Madīnah on the exact measure of mudd and s.ā‘ is accepted unanimously by the whole ‘ulamā’.138 The Madīnian mudd in the early period of Islam is 1.053 liter, if we estimate that 77 kg wheat equals 100 liters. The Madīnian s.ā‘, which equals four mudd is 4.2125 liters. However, the measurement of mudd in other Muslim cities is different.139 Ibn H. azm contends that it is not the ijmā‘ of the people of Madīnah which is accepted in this case, but the h.adīth which goes back to the Prophet transmitted successively ) ( upon which there is also disagreement among them. A Madinese, Mūsá ibn T.alh.ah ibn ‘Abd Allāh was reported to have a different opinion on this issue. On the other hand, Ibn H. azm contends that if the acceptance of this issue should be extended to others, the opinion of the people of Makkah would more deserve to be accepted. This is because the whole Muslim community agree to accept their opinion upon the locations of ‘Arafah, Muzdalifah, Mina, etc. 140 Moreover, the opinion of the people of Madīnah on the measure of mudd and s.ā‘ is accepted by Ibn H. azm, not because it is the opinion of the people of Madīnah, but because it is the minimum measure mentioned in the controversy. Some

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people, whom Ibn H. azm did not name, held the opinion that one s.ā‘ equals eight pounds, others assume that it is more than that, while the people of Madīnah maintain that it is five pounds and more. Therefore, there is no disagreement among the ‘ulamā’ in the acceptance of this minimum measure of s.ā‘ .

We do not agree with Ibn H. azm in assuming that the measure of the Madinian s.ā‘ is accepted by Muslims because it is the minimum measure in the controversy. It is true that s.ā‘ equals 5 1/3 pounds in Madīnah and 8 pounds in Baghdad, but the measure of the s.ā‘ is still the same, i.e., 4.2125 liters.141 This is because one Madīnian pound (rat.l) equals 1.5 Baghdādian one. The measurement of pound is also different in other Muslim countries For example, one pound in Madīnah, Iraq (as well as Yemen), and Andalusia is respectively equals 609.375 g, 406.25 g, and 453.3 g. 142 Although Ibn H. azm does not give us any details on the measure of mudd, his opinion in this issue and of the s.ā‘ is not different from any other school. This is because this issue is accepted as a mutawātir report by the people of Madīnah, handed down from the Prophet. An issue of this kind is considered h.ujjah by the four Sunnī schools. Abū Yūsuf from the H. anafī school, after receiving the explanation of this matter from Mālik, said that had this mutawātir report reached Abū H. anīfah, he would have accepted it. This report of the people of Madīnah is considered by Ibn Taymiyyah as the first category of ijmā‘ of the people of that city, which is, in Ibn Taymīyah’s view, accepted by Muslims as h.ujjah. The second category of this type of ijmā‘ is the earlier practice of the people of Madīnah before the assassination of ‘Uthmān. According to Ibn Taymiyyah, this practice is accepted as h.ujjah by the Mālikīs, the Shāfi‘īs, the H. anafīs, and apparently also H. anbalīs, as they accepted the practice of the rightly-guided caliphs as h.ujjah.

The third category of this type of ijmā‘ is that in case two dalīls contradicted one another in a certain issue, for example, two

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h.adīths or two qiyāses, and it is not known which of the two h.adīths or qiyāses is arjah. (preponderant), but one of them is practised by the people of Madīnah, the Mālikīs and the Shāfi‘īs choose the practice of the people of Madīnah. Abū H.anīfah does not have any preference for the practice of the people of Madīnah. In the H. anbalī school, Ibn Taymiyyah gives two views: a) al-Qād.ī Abū Ya‘lá and Ibn ‘Aqīl (d. 513/1119) do not choose the practice of the people of Madīnah; b) Abū ’l-Khat.t.āb (d. 138/755-756) does, which is also the view Ah.mad ibn H. anbal. Generally speaking, these three categories of ijmā‘ are accepted by the jumhūr al-‘ulamā’. The fourth category of ijmā‘ mentioned by Ibn Taymiyyah is the late practice of the people of Madīnah. This is not h.ujjah according to the H. anafīs, Shāfi‘īs, and H. anbalīs. This is also the view of the effective defenders of Mālikīs doctrines. Ibn Taymiyyah assumes that some Mālikīs in North Africa (al-Maghrib) consider it as h.ujjah. If this assumption is true, this might also be true for the Mālikīs in Andalusia whom Ibn H. azm attacks severely.143 In summary, the Mālikīs as we have seen are the advocates of this type of ijmā‘, and the position to which they adheres is in sharp contrast with Ibn H. azm’s. Since Spain during Ibn H. azm’s time adhered dominantly to the Mālikī school why does Ibn H. azm reject the Mālikī position? The answer to this question lies in the doctrinal and political rivalries between the Z.āhirī and Mālikī doctors. Doctrinal rivalry, because Ibn H. azm represents the Z.āhirī school, and it is known that the Z.āhirī s adhere to the nas.s. as the only source of law in religion. Political rivalry, because his motive is to demonstrate to the people and rulers in his time the falsehood of the Mālikī jurists in following their imām Mālik ibn Anas, instead of the Qur’ān and the Sunnah. This criticism can be interpreted to mean that Ibn H. azm was actually denouncing Mālikī judges and rulers themselves.

In Spain the position of wazīr (vizier, minister) and qād.ī were important ones and the Mālikī jurists did indeed occupy these

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positions. This was because the official madhhab to which the rulers of Spain adhered during Ibn H. azm’s time was the Mālikī madhhab. In the meantime, the rulers prevented Z.āhirī jurists like Ibn H. azm from occupying judicial and non-judicial positions in the government, because the Z.āhirī madhhab was strange to them. By so doing, Ibn H. azm was expressing his criticism against the religious orientation of his contemporary rulers and the Mālikī jurists who exercised taqlīd144 instead of ijtihād.

4. Ijmā‘ where no Challenge is Known According to Ibn H. azm, this type of ijmā‘ was advocated by the followers of the H. anafī, Mālikī, and Shāfi‘ī schools.

Unknown leaders of these schools maintain that if a legal judgement of a particular issue was put forward by a t.ā’ifah of ‘ulamā’, it becomes ijmā‘, provided that no ‘ālim has ever challenged its legal authority.145 Ibn H. azm cites two reasons for its legality: 1) the attribute of virtue, i.e., ‘ulamā’ involved in the legal judgement belong to the people of grace and religion ) ‫ا‬ ( whom Allah enjoins the believers to obey; 2) the ‘ulamā’’s acceptance of the decision of the jurists involved in the judgement. Therefore, the advocates of this type of ijmā‘, as stated by Ibn H. azm, maintain that the absence of any challenge indicates common agreement.146 But Ibn H. azm refuses to interpret the absence of challenge of an ‘ālim to the judgement of the ‘ulamā’ involved as an indication of common agreement. There are grounds for thinking that Ibn H. azm totally rejected the legality of this type of ijmā‘, i.e. the ijmā‘ where no challenge is known. The grounds for this are comprised of historical precedent, the use of nas.s. as the basis of ijmā‘, and the tendency among mankind to disagree in their daily life. Ibn H. azm is also uncertain whether the legal judgement involved, in effect, spread out among the ‘ulamā’, because they have been scattered through dār al-Islām.

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Since this is the case, the absence of challenge, Ibn H. azm contends, is highly unlikely to occur. Moreover, Ibn H. azm is also uncertain whether the absence of disagreement can be interpreted as positive agreement among the involved ‘ulamā’.

Ibn H. azm also contends that there are ‘ulamā’ among jinn (demons, genii), whom we do not know whether the legal judgement concerned reaches them or not.147 For Ibn H. azm, the absence of disagreement in a legal context can also be viewed as a legitimate disagreement in the same context. One historical precedent which Ibn H. azm cites is the example concerning the experience of the s.ah.ābī, Abū Ayyūb al-Ans.ārī.148 During the caliphate of ‘Umar he stopped performing two rak‘ah after the ‘as.r (late afternoon prayer), while prior to that caliphate, he had been consistently performing these two rak‘ahs. But after the death of ‘Umar he returned to his previous practice. When he was asked why he stopped practising the two rak‘ahs during the time of ‘Umar, but resumed it later on, he said that he did so because ‘Umar beat people who performed it. 149 Ibn H. azm interpreted this example as a proof that the fear caused by ‘Umar’s beating was responsible for Abū Ayyūb’s suspension of that prayer, and with the absence of such fear, he resumed it. It follows that his fear is also the cause of his silence in concealing his disagreement with ‘Umar in the matter of the two rak‘ah prayer.

In addition to fear, Ibn H. azm mentions other reasons, among which is that the ‘ālim may maintain silence, because the side of the truth is not yet visible to him. In other words, he does not know whether the legal judgement of the ‘ulamā’ which reaches him is right or wrong, and therefore, he cannot challenge it. His silence, then, does not mean his agreement.

Another reason for maintaining silence of the ‘ulamā’ is that they actually give their disagreement, but they do not reach us, though they reach other people in other parts of Muslim countries. Therefore, we think that they are silent, while actually they are not.150 This argument of Ibn H. azm also indicates his

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rejection of the ijmā‘ sukūtī (tacit ijmā‘), though he does not deal with it in a special chapter in his book al-Ih.kām.

Ibn H. azm also disputes the meaning of agreement or disagreement on the basis of textual consideration. In his view, a nas.s. is the key for deciding whether or not the ijmā‘ has any validity of its own. According to Ibn H. azm an ijmā‘ on nas.s. is undoubtedly a valid one, because it involves yaqīn (certitude).

Other than the element of yaqīn, any ijmā‘ based on any notion such as z.ann and ra’y has to be rejected. Ibn H. azm cited verses from the Qur’ān which indicate the invalidity of z.ann, such as the following verses:

“When ye welcomed it with your tongues, and uttered it with your mouths that whereof ye had no knowledge, ye counted it a trifle.

In the sight of Allah it is very great.:” (Qur’ān 24:15, italics mine);

“Lo! ye are those who argue about that whereof ye have some knowledge. Why then ye argue concerning that whereof ye have no knowledge? Allah knoweth. Ye know not.”

(Qur’ān 3:66, italics mine).

Ibn H. azm contends that assuming the occurrence of ijmā‘ on a particular issue simply because no challenge is known is a kind of z.ann. Therefore, ijmā‘ based on z.ann is also based on what someone has no knowledge of. This practice is forbidden by Allah, and therefore, this type of ijmā‘ has no legal value.151

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In addition, the same thing is true about human nature and its tendency to disagree on a common issue. In Ibn H. azm’s view, disagreement is inherent in man and more dominant in him than agreement is. This means that Ibn H. azm does not wholly believe in the absence of disagreement in the ijmā‘ where no challenge is known. To support this belief Ibn H. azm cites the following Qur’ānic verses:

“…, yet, they (mankind) cease not differing save him on whom their Lord hath mercy; and for that He did create them...”

(Qur’ān 11:118-119).

These verses indicate the natural tendency of mankind to disagree with others. So far, Ibn H. azm’s belief in the nature of disagreement among mankind leads him to reject ijmā‘ based on other than nas.s.. The reason for this thinking is that a Muslim cannot disagree to the nas.s..152 Ibn H. azm’s argument in refuting ijmā‘ where no challenge is known indicates that he consistently takes into account the nas.s. as the only basis of ijmā‘ and that he insists on rejecting anything in religion based on z.ann. Moreover, through his observation of man’s psychology and the Qur’ānic verses dealing with human nature, he is convinced that there is not a single agreement without any challenge except ijmā‘ based on nas.s., because disagreement is natural in man. As a historian, he gives us examples which prove the invalidity of his opponents’ argument.

So far, we have been discussing Ibn H. azm’s view of ijmā‘ where no challenge is known. Now we shall look into his view of ijmā‘ where one challenge is known. This type of ijmā‘ is considered as ijmā‘ by its advocates, in spite of the existence of

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a challenge to it. Ibn H. azm opposes this type of ijmā‘.

Compared to the previous type of ijmā‘ this type is less important, due to the existence of one challenge. However, it had been dealt with and rejected by leading ‘ulamā’ before Ibn H. azm, like al-Shāfi’ī (d. 204/820). But it is still important to know the argument of rejecting this type of ijmā‘ from the Z.āhirī point of view as presented by Ibn H. azm.

5. Ijmā‘ with One Challenge The advocates of this type of ijmā‘ disregard the challenger and insist on its legality, because they consider the one challenger as an isolated instance from the opinion of the ‘ulamā’ in general. Ibn H. azm, it will be seen, rejects this opinion and insists that a single challenge is itself a disagreement on the ground that there is no unanimity of opinion which constitutes the ijmā‘. Moreover, the challenger, contrary to the emerging view of the ‘ulamā’, might very well be on the true side, for Ibn H. azm contends that religious truth does not depend on the number or numbers of its adherence.

To begin with, Ibn H. azm raises the problem of this type of ijmā‘ in the context of a statement by the H. anafī qād.ī Abū H. āzim ‘Abd al-‘Azīz ibn ‘Abd al-H. amīd153 and the historian Abū Ja’far Muh.ammad ibn Jarīr al-T.abarī on the disagreement of the s.ah.ābī Zayd ibn Thābit with the first four caliphs as to what to do with the remainder of the inheritance left by a dead person. Unlike the four caliphs, Zayd ibn Thābit thinks that this remainder of the deceased should go to bayt al-māl (public treasury).154 But Abū H. āzim disregards this view because he abolishes the law of giving the bayt al-māl a share in inheritance and adheres to the opinion of the caliphs, namely, the remainder of inheritance should go to the deceased’s relatives on the maternal side ) (.155 Al-T.abarī’s view is not stated. We only know that he disregards a single challenger in ijmā‘.156 Since Ibn H. azm treats the two eminent scholars together, we

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assume that al-T.abarī probably shared with Abū H. āzim the same view.

Ibn H. azm does not tell us his view on the issue of the remainder of the inheritance. Nevertheless, there is enough evidence to indicate that he disagrees with Abū H. āzim and alT.abarī and those who disregard a single challenge in the occurrence of ijmā‘. He offers us three arguments by his opponents defending this type of ijmā‘.157 One, the opponents of Ibn H. azm claim that a single challenge of ijmā‘ is shudhūdh (deviation) and madhmūm (reprehensible), while following the opinion of the community is desirable. Two, a good number of h.adīths indicate the infallibility of the Muslim ummah (nation, people) and the injunction to the Muslims to adhere to the majority. Three, through the application of reason they (i.e., the opponents of Ibn H. azm) are uncertain whether or not a single challenger of ijmā‘ belongs to the jamā ‘ah (community). While they do not doubt that those who are challenged by the single challenger belong to the jamā ‘ah, it is reasonable for them to follow the majority whom they are sure belong to the jamā ‘ah rather than the single challenger, who has no such distinction.

This is because they cannot accept the idea that a single person could constitute a jamā‘ah.

Why is a single challenge shudhūdh and madhmūm?

According to Ibn H. azm’s opponents who advocate this type of ijmā‘, an ‘ālim who stands alone in challenging the jamā ‘ah is considered by them as deviating from it. Therefore, a single opinion which challenges that of the jamā ‘ah, which is considered deviation and something reprehensible, as shudhūdh in religious definition is meant to embrace deviation from the jamā ‘ah, which is forbidden in matters relevant to the sharī‘ah.158 Ibn H. azm rejects this view by stating that the shudhūdh is not altogether a matter of deviation from the jamā ‘ah. Rather, it

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means disagreement at the expense of religious truth ) (, and anyone who disagrees in the realm of religious truth is himself shādhdh (a deviated opponent). Ibn H. azm differs from Abū Sulaymān Dāwūd ibn Khalaf, the founder of the Z.āhirī school, and the jumhūr of Z.āhirī ‘ulamā’ on the occurrence of shudhūdh. According to Abū Sulaymān and the jumhūr of his school, shudhūdh occurs when the ‘ulamā’ agreed upon an issue, and having done so, one of them challenged the agreement after he had agreed to it.159 Why does Ibn H. azm see shudhūdh in the context of truth alone? For him, the justification for not defining shudhūdh merely as the deviation of one ‘ālim from the rest of ‘ulamā’ arises from the idea that the one ‘ālim might be correct, and truth cannot be shādhdh. He contends that if shudhūdh is defined as the separation of one ‘ālim from the rest of ‘ulamā’ this is not acceptable for him, because if the ‘ālim mentioned above is true in his opinion he will become mah.mūd (praised) and mamdūh. (laudable). As shudhūdh is madhmūm (reprehensible) it should be impossible for a person to be mah.mūd and madhmūm at the same time. As an example, Ibn H. azm mentions that all the s.ah.ābah disagreed with Abū Bakr in his intention to fight the apostates, while he alone was right and the whole s.ah.ābah were wrong.160 Ibn H. azm’s contention that the one ‘ālim might be correct, and truth cannot be shādhdh is also indicated by his rejection of the claim made by his opponents in the context of a series of unlimited numbers of shudhūdh, suggesting that either they should stick to the provision of limitation, or they should not give such limitation. Ibn H. azm contends that if it were the former, then they would give false statement without introducing any dalīl, so that they themselves would become shādhdh from the truth. On the other hand, if it were the latter, then the number of shudhūdh would be extended until they turn away from al-ma‘qūl (the reasonable) and the ijmā‘ of the

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community; again they themselves would become shādhdh from the truth.161 This view of Ibn H. azm on the position taken by his opponents is linked with another consideration, i.e., the use of h.adīths as reliable grounds to prove the infallibility of the Muslim community, plus the injunction of the Prophet to the Muslims to adhere to the majority. So important is this consideration that it largely accounts for Ibn H. azm’s challenge to his opponents in this matter. As illustrative examples we shall mention two h.adīths. The first h.adīth says:

“The community of Muhammad will never agree on an error. Follow the majority. He who goes his own way will also go his own way to hell.”162

The component element of the h.adīth focus on the relationship of shudhūdh to the overriding nature of errors and judgement by the majority. The opponents of Ibn H. azm judge the contents of this h.adīth by responding that the h.adīth actually refers to the infallibility of the community. This community by inference represents the majority of its members, whose agreement is in effect an ijmā‘.163 Any opinion which isolates itself from that of the majority (which is infallible) is automatically wrong and should be disregarded. One view which agrees to the interpretation of Ibn H. azm’s opponents for the h.adīth is preserved by al-Āmidī. They give an example that if we say that Banū Tamīm protect their neighbours and give hospitality to their guests this statement is to be interpreted to indicate that the majority of the Tamīmīs follow this practice, and this by inference applies to the Tamīmī tribe as a whole.164 This view is not accepted by Ibn H. azm, because he throws doubt upon the veracity of the h.adīth by disputing the reliability

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of one of its chain of narrators, al-Musayyib ibn Wād.ih. by name. Ibn H. azm contends that Ibn al-Musayyib is not a reliable transmitter, because he falls into the category of munkar alh.adīth (a traditionist whose h.adīth gains no recognition).165 Ibn H. azm asserts that even if the above h.adīth were sound, it would be irrelevant to the issue of an ijmā‘ based on the opinion of the majority, so long as it indicates the necessity for Muslims to follow the truth. The reason for underlining the truth as the h.adīth’s implication, is that Ibn H. azm interprets the words (whoever deviates) in the h.adīth as (whoever deviates from the truth), though the truth embraces one person.166 But the first part of this h.adīth which has a similar verse and constitutes a h.adīth in itself (i.e., “My community will not agree on an error”) has been rejected by several leading Orientalists, on the ground that al-Shāfi‘ī did not cite it as an argument for the validity of ijmā‘. Al-Shāfi‘ī did not cite it either because he did not know it (as assumed by Schacht), or he knew it, but he did not consider it genuine. 167 Watt asserts that some Western critics consider it to be a forged h.adīth intended to justify the validity of ijmā‘.168 In this instance Ibn H. azm’s judgement in doubting the authenticity of the above h.adīth cannot be totally ignored.

The second h.adīth cited by Ibn H. azm’s opponents says:

“O people, honour my s.ah.ābah, then the following generation [i.e., the tābi‘īn], then the following of the following generation [i.e., the tābi‘ī al-tābi‘īn]; afterwards falsehood will appear, so that

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a man would swear before being asked and would bear witness before being asked; whoever among you seeks the pleasure of Paradise, he should follow the community; a man should not be alone with a woman, for Satan would be the third of the two; Satan can pursue one person, but stands far away from two; whoever is displeased with his bad deeds and pleased with his good ones is a believer.”169

According to Ibn H. azm’s opponents, this h.adīth justifies the validity of ijmā‘ with one challenge, because it enjoined the Muslims to follow the jamā‘ah. Moreover, one challenge in ijmā‘ comes from one person whom Satan can pursue, while the jamā‘ah is protected by Allah, because His hand is upon them.

Again, Ibn H. azm is not sure of the soundness of this h.adīth, because he asserts that it has not been reported by any traditionist who makes the soundness of a h.adīth as the condition of reporting it ( (. But Ah.mad hmad Shākir, the Egyptian qād.ī, asserts that Ibn H. azm’s contention is false, and claims that the narrators of this h.adīth were thiqāt (reliable authorities).170 Like to foregoing example, Ibn H. azm sees no relationship between the implication of the h.adīth and the acceptance of ijmā‘ under discussion. Moreover, the above h.adīth has no bearing on religious questions ( (171 and should not be taken in its wider context ) (. Ibn H. azm adheres to this view, because he argues that by the reference to Satan in the above h.adīth the Prophet would not mean that a person who resides alone at home would be accompanied by Satan. He contends that if the above h.adīth were relevant to religion and were accepted in its general meaning, falsehood could be changed into truth. A person whose opinion differed from that of other people, his opinion would be false, because as the h.adīth says, Satan can pursue him. But if his opinion was backed by another one, this false opinion would turn into truth, because Satan is away from the two. This is not the nature of

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religion, because false remains false even though it is backed by thousands of people. Ibn H. azm contends further that the Prophet would not have meant that Satan was away from infidels like the Jews, the Christians, or Muslim heretics, because they were more than one person, or that they constitute the majority of people. On the contrary, in Ibn H. azm’s view, the more they are in number, the stronger is Satan with them than with one person.172 Ibn H. azm was probably right in considering that the above h.adīths have nothing to do with ijmā‘, but his views are exaggerated. There is an indication that the Prophet warns his followers of separation from the Muslim community which actually happened later. Every member of the community has the right to express his opinion, but it does not mean that he has to leave the community. Moreover, difference of opinion is in the nature of human beings. The solution is that everyone among the community explains his argument honestly, for the sake of finding the truth, so that opponents can be convinced.

Otherwise, the opinion of the majority is to be accepted by all as ijtihād of the ‘ulamā’, not as ijmā‘.

Furthermore, Ibn H. azm interprets the word jamā‘ah in the h.adīth as reference to the jamā‘atu ’l-h.aqq (the community of the truth). This jamā‘atu ’l-h.aqq, in Ibn H. azm’s view, has no relation with the strength of its numerical order. In equating the jamā‘ah with jamā‘atu ’l-h.aqq, Ibn H. azm insists that they constitute the minority of people. He cements his argument with: 1) historical evidence, like the conversion of the Prophet’s wife Khadījah to Islam; 2) nas.s. as based on the Qur’ān and the Sunnah, all indicating that the believers constitute a minority and that though they are small in number, they belong to the jamā‘atu ’l-h.aqq; 3) reason as exemplified by the non-believing community, or by the Prophet’s relationship to his own community.

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To be precise, the historical evidence cited by Ibn H. azm to prove that the jamā‘ah intended in the second h.adīth is the jamā‘atu ’l-h.aqq and that they belong to minority is the state of the Prophet just after he was chosen as a prophet by Allah. At this time he was the only person who belonged to the truth. The rest of the world were in falsehood. In this case it was the Prophet alone whom people should follow, although the people of his community were unbelievers and constituted the majority of people. When Khadījah converted to Islam she and the Prophet belonged to the truth, because of his prophethood and Khadījah’s acceptance of his message, while the majority of people opposing them were in falsehood. Similar evidence mentioned by Ibn H. azm is the case of Zayd ibn ‘Amr ibn Nufayl, who lived in pre-Islamic Arabia, and who refused to worship idols instead of Allah. Because of this attitude he was the only person in his time who belonged to the truth, and according to a h.adīth, he would be raised on the Judgement Day as an ummah (a nation, a community, people) in itself. 173 It was narrated by Jābir ibn ‘Abd Allāh that the Messenger of Allah was asked about the case of Zayd ibn ‘Amr ibn Nufayl who faced the Ka‘bah and said:

"O Allah, my god is the god of Abraham, and my religion of the religion of Abraham, peace be upon him",

then prayed and prostrated. The Prophet said:

"This [person] is a nation by himself, he will be assembled [in the Resurrection Day] between me and ‘Isa ibn Maryam, peace be upon him.". 174

He was said to have been seen by the Prophet plunging in the rivers of Paradise.175

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There are a good number of Qur’ānic verses and prophetic traditions which Ibn H. azm uses to support his contention that the jamā‘atu ’l-h.aqq belongs to minority. In the course of his presentation Ibn H. azm cites four verses and seven h.adīths. Of this total, the verses revolving around the term mu’minīn (believers) and the h.adīth equally relating to it constitute the focus of this argument. We shall first cite two nas.s.es and then present the analysis. One Qur’ānic verse occurs in sūrat Yūsuf (chapter 12) verse 103, which belongs to the Makkan period and relates a group of people (nās) to the term mu’minīn, and does not refer to jamā‘atu ’l-h.aqq. This verse runs as follows:

“And although thou try much, most men will not believe.”

(Qur’ān 12:103).176

Ibn H. azm‘s comment on this verse is limited in two points: 1) that the believers are meant to be the jamā‘atu ’lh.aqq; 2) that the latter, in turn, constitutes a minority. This view of Ibn H. azm is shared by qād.ī ‘Abd al-Jabbār (d.

415/1025) who maintains that the greatness in number of the upholders of an opinion does not indicate that it is true, nor that the smallness in number indicates its falsehood. 177 Ibn H. azm defines jamā‘atu ’l-h.aqq as people who follow the Qur’ān and the genuine h.adīth of the Prophet ) (. Ibn H. azm means that believers who mistakenly follow a forged or an unsound h.adīth do not belong the jamā‘atu ’l-h.aqq, and therefore, they should not be followed by other believers.178 The other verses quoted by Ibn azm to indicate that the jamā‘atu ’l-h.aqq belong to minority are as follows:

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“…, save such as believe and do good works, and they are few.”

(Qur’ān 77:77).

“…but most of mankind know not.”

(Qur’ān 12:21, 40, and 68).

“…If thou obeyedst most of those on earth they would mislead thee ...”

(Qur’ān 6:116).

The h.adīths which Ibn H. azm cites as a proof to support his stand revolves around the key-word mu’minīn and jamā‘atu ’l-h.aqq. Moreover, Ibn H. azm believes that the h.adīths as naes give vidence to the meaning derived from the verse.

Among these h.adīths are as follows:

“The Doomsday will not come upon someone who says ‘there is no god but Allah’ [i.e., a believer]”.

“Verily, the Doomsday will not come except upon those who have no good with them.”

From these h.adīths Ibn H. azm extracts two points: 1) a believer belongs to jamā‘atu ’l-h.aqq, and 2) this jamā‘ah belongs to a minority, as the number of believers will diminish before Doomsday; and during that day, there would be no believer.

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As for his reasons, Ibn H. azm argues that the only possible meaning of the jamā‘ah whom the Muslims should follow is the jamā‘atu ’l-h.aqq, i.e., the Muslim community in its general meaning, because non-believers which are also jamā‘āt (sing. jamā‘ah) should not be followed by Muslims, though they constitute the majority of people. In its particular meaning, jamā‘atu ’l-h.aqq means any group that follows the Qur’ān and the genuine h.adīths of the Prophet, because Muslims themselves are divided into jamā‘āt. The heretics among them are excluded from the jamā‘atu ’l-h.aqq, while the Sunnīs are divided into jamā‘āt, i.e., the H. anafī, Mālikī, Shāfi‘ī, and H. anbalī schools, as well as the people (followers) of Tradition ) ( , and none of them deserves more to be jamā‘atu ’l-h.aqq than the others, because of their equality in authenticity.179 For evidence by reason, Ibn H. azm states the view of his opponents on the issue whether the one challenger of ijmā‘ belongs to the Muslim ummah. Dissociating with this one challenger, they assert that those who participate in ijmā‘ belong to the Muslim ummah whom every Muslim should follow. With regard to the one challenger, they doubt he belongs to that ummah. They contend that it is reasonable to follow those whom they are sure belong to the Muslim ummah rather than those whom they doubt belong to it.180 But Ibn H. azm rejects this view, because he maintains that it is disobedience to Allah, who enjoins Muslims to refer to the Qur’ān and the Sunnah whenever a dispute arises. He is referring to the Qur’ānic verse which reads:

“…; and if ye have a dispute concerning any matter, refer it to Allah and the messenger…”

(Qur’ān 4:59).

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The existence of one challenge is a legal and binding dispute according to Ibn H. azm and it cannot be disregarded.

To sum up, what Ibn H. azm wants to prove is that the notion of religious truth in Islam has noting to do with the number of people who adhere to it. While his proofs are largely a combination of Qur’ānic verses and Prophetic traditions, and while reference to the Z.āhirī school is not evident, this may be because he found that the true madhhab corresponds with the Z.āhirī to which he belongs and represents. Hence, his strong attempt at propagating and defending it is obvious. It should be recalled that this school applies the nas.s. of the Qur’ān and the Sunnah as proofs to implement sharī‘ah and reason. It is nas.s. which guides reason to find the religious truth. Reason alone is unreliable in its judgement, because it is merely a worker, and not a ruler.

The difference between this type of ijmā‘ and the previous one is that this type of ijmā‘ is less important than ijmā‘ where no challenge is known, because the existence of one challenge in ijmā‘ causes the loss of its unanimity, which is a condition for the agreement in the occurrence of ijmā‘ brought about by the majority of ‘ulamā’.

We have discussed and anylized Ibn H. azm’s argument in refuting ijmā‘ with one challenge. We have also discussed Ibn H. azm’s view about ijmā‘ on what is known by necessity, ijmā‘ of the s.ah.ābah, ijmā‘ of the people of Madīnah, and ijmā‘ where no challenge is known. Ijmā‘ on what is known by necessity is the strongest one in Ibn H. azm’s view, as no Muslim will remain Muslim if he denies it. Ijmā‘ of the s.ah.ābah is the second ijmā‘ accepted by Ibn H. azm, where no s.ah.ābī denies it.

Ijmā‘ of the people of Madīnah is rejected by Ibn H. azm, because, in his view, the people of that city have no privilege over other people in other cities. Ijmā‘ where no challenge is known is also rejected by Ibn H. azm on the basis that knowing

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the opinion of the whole ‘ulamā’ other than the s.ah.ābah in a certain issue is impossible due to their greatness in number.

Likewise, knowing the existence or non-existence of any challenge to this type of ijmā‘ is also impossible.

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131

Ibn H.azm, Ih.kām, vol. 4, pp. 554. The Rawāfid. (sing. Rāfid.ah) was originally applied to groups of soldiers who have deserted their leader. It was applied to a certain sect of the Shī‘ah of Kūfah who deserted Zayd ibn ‘Alī ibn al-H.usayn ibn ‘Alī when he refused to speak against Abū Bakr and ‘Umar, for he said: “Both were ministers of my grand-father Muhammad.” The term Rawāfid. is also applied by Sunnī Muslims to any sect of Shī‘ah. Finally, it is applied to apostates or schismatics who speak against the s.ah.ābah.

132 Ibid.

133 Ibid., pp. 554-555 134 Ibid., pp. 558-559.

135 Ibid., vol. 4, pp. 556-557; vol. 6, p. 878.

136 Ibid.. vol. 4, p. 558; vol. 6, p. 879.

137 For further details, see al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, pp.

314 ff. Unlike al-Sarakhsī, Ibn Taymīyah and Ibn Qayyim al-Jawziyyah from the H.anbalī school lean to the Mālikī position. As for the argument of Ibn Taymiyyah for the ijmā‘ of the people of Madīnah, see S.ih.h.at Us.ūl, pp. 17 ff; for the opinion of Ibn Qayyyim al-Jawziyyah, see, I‘lām al- Mūqi‘īn, vol. 2, pp. 434 ff.

138 Ibn Taymiyyah, S.ih.h.at Us.ūl, p. 23.

139 For further details, see Walther Hinz, Islamische Masse und Gewichte, Handbuch der Orientalistik, ed. Bertold Spuler, suppl. Vol. 1, book 1 (Leiden: E.J. Brill, 1955), pp. 45-47 and 51. (Hereafter referred to as Islamische Masse).

140 Ibn H.azm, Ih.kām, vol. 6, p 876.

141 See W. Hinz, Islamische Masse, p. 51.

142 For further details on pound (rat.l ), see ibid., pp. 28-33.

143 Fur further details, see Ibn Taymiyyah, S.ih.h.at Us.ūl, pp. 23-27; see also Muh.ammad al-Khud.arī, Us.ūl al-Fiqh, 4th ed. (Cairo: Mat.ba‘at al-Sa‘ādah, 1382/1962), pp. 304-307.

144 Ibn H.azm denounces taqlīd. For his arguments against taqlīd, see Ih.kām, vol. 6, pp. 793 ff.

145 Ibid., vol. 4, p. 531. This type of ijmā‘ had been alluded by alShāfi‘ī, see Jimā‘ al-‘Ilm, pp. 60-64.

146 Ibn H.azm, Ih.kām, vol. 4, p. 531.

147 Ibid., p. 535.

148 Abū Ayyūb was one of the s.ah.ābah, who gave their futyā (fatwá, formal legal opinion) in one or two issues only. Ibid., vol. 5, p.

666 line 21; idem, Jawāmi‘, p. 320.

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149

It is important to remember that the Prophet recommended that people perform sunnah prayers at home. Moreover, when his house and mosque were being built in Madīnah he lived temporarily in the house of Abū Ayyūb. Idem, Jawāmi‘, p. 95. Perhaps during this time he saw the Prophet performing this two rak‘ah prayer. For further details, see idem, Ih.kām, vol. 4, pp. 536-537.

150 For further details, see ibid., p. 537.

151 Ibid., pp. 533-534. For further arguments of Ibn H.azm in refuting al-z.ann, see ibid., vol. 1, pp. 117 ff passim.

152 Ibid., vol. 4, pp. 502-503.

153 It is probable that instead of ‘Abd al-‘Azīz ibn ‘Abd al-H.amīd, the correct name of this H.anafī qad.ī was Abū H.āzim (or Abū Khāzim) ‘Abd al-H.amīd ibn ‘Abd al-‘Azīz. He died in 292/904. See Abū Ish.āq alShīrāzī, T.abaqāt al-Fuqahā’, ed. Dr. Ih.sān ‘Abbās (Cairo: Dār al-Rā’id al-‘Arabī, 1970, p. 141.

154 Ibn H.azm, Ih.kām, vol. 4, p. 544; vol. 1, p. 180.

155 Ibid., p. 544 156 Ibid.

157 Ibn H.azm does not give us the argument of Zayd ibn Thābit, but he does criticize his opponents among the Mālikīs and Shāfi‘īs for following Zayd ibn Thābit. Ibn H.azm does not believe in the soundness of the h.adīth claiming that “Zayd is the most learned man among you on the law of inheritance ) ).” Ibn H.azm contends that if this h.adīth were sound it would be against his opponents themselves, because it goes on with “… and Mu‘ādh is the most learned among you in Islamic jurisprudence ) (.” This is because they do not follow Mu‘ādh in his fatwá dealing with the penalty of death upon apostates (without asking them to repent) and the legality of inherited property by a believer from a non-believer. Ibid., vol. 6, pp. 819-820.

158 Ibid., vol. 4, p. 544; vol. 5, p. 661.

159 Ibid., vol. 5, p. 661.

160 Ibid.

161 Ibid., p. 622. This is in the main the style of Ibn H.azm. He cites other examples, too. For details, see his arguments on the issue regarding the number of chains of transmitters in the khabar al-tawātur. Ibid., vol.

1, p. 95.

162 This h.adīth is a combination of three of h.adīths, totally cited by a single chain of narration, see ibid., vol. 4, p. 545. The first one, “The community of Muhammad will never agree on an error” was cited by many h.adīth collectors, but with different versions, (i.e., “My

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community…” instead of “The community of Muhammad…”), among which are al- Bukhārī in his al-Jāmi‘ al-S.ah.īh. (Kitāb al-Fitan), alTirmidhi’s al-Jāmi‘, (the chapter dealing with Fitan), Ibn Mājah’s Sunan (chapter Manāsik Fitan), Ah.mad ibn H.anbal’s Musnad, IV, 101 and V, 145; another version was also cited by al-Ghazālī, al-Must.ass.fá, vol. 1, p. 175. The second h.adīth was cited by Ibn Mājah in his chapter on the nature of Fitan. The third h.adīth with a similar version was cited by al- Ghazālī, see ibid.

163 Ibn H.azm, Ih.kām, vol. 4, p. 545.

164 Al-Āmidī, Ih.kām al-Āmidī, vol. 1, p. 339.

165 bn H.azm, Ih.kām, vol. 4, p. 545.

166 Ibid.

167 Joseph Schact, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), p. 91; George F. Hourani, “Basis of Authority,” pp. 157-158.

168 W. Montgomery Watt, Islam and the Integration of Society (London: Routledge & Kegan Paul, [c. 1961]), p. 204 as quoted by A. Hasan, The Early Development of Islamic Jurisprudence (Islamabad: Islamic Research Institute, 1970), p. 157.

169 Ibn H.azm, Ih.kām, vol. 4, p. 545.

170 Ibid., p. 546. This is one of many sound h.adīths which is considered weak by Ibn H.azm. Sound h.adīths are disputed by Ibn H.azm, either through finding weak narrators in their sanad, or through his investigation on the matn (text) of h.adīths, like the one mentioned above.

For sound h.adīths which are doubted by Ibn H.azm, see ibid., vol. 5, p.

702; vol. 6, pp. 764, 809, 820, 1003, and 1015.

171 Ibid., vol. 4, pp. 548-549. Notice that Ibn H.azm repeats the words three times during the course of his argument, see ibid., pp. 548 (line 26) and 549 (lines 18 and 26).

172 Ibid.

173 Ibid., pp. 546-547. Another proof to justify the possibility of considering a person who belongs to the truth as an ummah which is not used by Ibn H.azm is the following Qur’ānic verse, “Lo! Abraham was a nation (ummah), obedient to Allah, by nature upright, and he was not of the idolaters.” (َQur’ān 16:120).

174 Ibn Banī ‘Āim, al-Āād wa ’l-Mathānī, vol. 2, p. 363 (alMaktabah al-Shāmilah).

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175

Qurt.ubī, Abū ‘Abd Allāh Muh.ammad ibn Ah.mad al-Ans.ārī al-.

Al-Jāmi‘ li Ah.kām al-Qur’ān. 20 vols in 10 bindings. (Beirut: Dār Ih.yā’ al-Turāth al-‘Arabī, 1967), vol. 10, p. 172 (al-Maktabah al-Shāmilah).

176 Ibid., p. 547.

177 ‘Abd al-Jabbār, Sharh. al-Us.ūl, pp. 61-62.

178 Ibn H.azm, Us.ūl, vol. 4, p. 548.

179 Ibid.

180 Ibid., p. 550.