IBN H.AZM'S CONCEPT OF IJMĀ‘ by Muhammad Amin Samad

IBN AZM'S

CONCEPT OF IJMĀ‘

Dr. M uhammad Amin A. Samad

‫‪ii‬‬

‫بسم اهلل الرحمن الرحيم‬

iii

ABSTRACT This book is an attempt to study Ibn H. azm’s concept of ijmā‘ (consensus). Ibn H. azm was a Muslim scholar of Persian origin, who revived the Z.āhirī school in Andalusia (Muslim Spain) in the fifth/eleventh century. The Z.āhirī school was founded by Dāwūd in Iraq in the third/ninth century. This school was known for its insistence on the literal interpretation of the nas.s. (divine text). Ijmā‘ is accepted by Muslim jurists en masse as the third source of Islamic law after the Qur’ān and the Sunnah (practice) of the Prophet. However, these jurists held different concepts on ijmā‘ according to the schools to which they belonged. As an exponent of the Z.āhirī school, Ibn H. azm’s concept of ijmā‘ is quite different from those of other jurists. In defending his concept and refuting those of his opponents, he based his argument upon the literal meaning of the nas.s..

So, I said: ‘Do they blame me for anything except that I do not uphold ra’y (personal opinion in religion), as there are discords in their opinion, ‘And that I am in love with nas.s. (divine text), and I do not lean upon other than it, nor shall I be weak in supporting it? ‘I will not incline towards any opinion said in religion; nay, the Qur’ān and the Sunnah (practices of the Prophet) suffice me.’ Ibn azm

TABLE OF CONTENTS ABSTRACT ……………………………………………

iii

RÉSUMÉ ………………………………………………

TABLE OF CONTENTS ………………….……………

ACKNOWLEDGEMENTS

………………………

TRANSLITERATION SYSTEM ……………………… INTRODUCTION

…………………………………

vii viii 1

Chapter I. HISTORICAL BACKGROUND ………..…………. A. The Background of Ibn H. azm

……………….

2 2

1. A Short Synopsis of Ibn H. azm’s Life………

2. Ibn H. azm’s Contact with Religious Scholars ……

B. The Problems of the Definitions and Occurrence of Ijmā‘ …………………………………. 1. The Definitions of Ijmā‘

…………………………

17 17

2. The Occurrence of Ijmā‘ ………………………………

II. JUDICIAL BACKGROUND …………………… .. ……

A. Ibn H. azm’s View of the Basis of Ijmā‘ ………..

1. Qur’ān………………………………………………..

2. Sunnah

…………………………………..

3. Qiyās…….. ……….………..……………………

43 55

B. Ibn H. azm ‘s View of the Types of Ijmā‘

……….

1. Ijmā‘ on What is Known in Religion by Necessity …

2. Ijmā‘ of the S.ah.ābah

………………………….

3. Ijmā‘ of the People of Madīnah ………….… …

4. Ijmā‘ where no Challenge is Known……………….

5. Ijmā‘ with One Challenge

………………… ..

CONCLUSION ……………………………………………

GLOSSARY

……………………………………………

100

APPENDIX

…………………………………………

105

BIBLIOGRAPHY

…………………………………….

106

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ACKNOWLEDGEMENT I would like to express my sincere gratitude to Dr. Charles J. Adams, the former Director of the Institute of Islamic Studies, McGill University, and Dr. Hermann Landolt, the former professor of this Institute for their support and encouragement in reading the draft of this work. I wish to express my gratitude and appreciation to Dr. Karim Crow for editing and proof-reading and Dr. H. Murtada Naqib for his assistance and advice, especially in writing the second chapter of this work. My thanks also go to Dr. Teddy Mantoro and others who have contributed, in one way or another, to the completion of this study. I sincerely express my deep thanks and appreciation for their support.

Canberra, December, 2011

M.A.S.

viii

TRANSLITERATION SYSTEM

The English transliteration for Arabic names and terms followed in this thesis is as follows:

a. Consonants: ‫ = ا‬a or ’

= th

= sh

=

=dh

= z.

= ‘

=gh

= ’ (like alif)

= =k

= kh

= d.

=

b. Vowels: Short:

long:

Fatah:

---- = a

= ā

Kasrah:

---- = i

= ī

D.ammah: ---- = u

= ū

c. Tā’ Marbūt.ah: ah, e.g., sūrah (

)

Tā’ Marbūt.ah in id.āfah: at, e.g., sūrat al-Baqarah ( d. Alif maqs.ūrah: á, e.g., qad.á (

) and shūrá

)

INTRODUCTION Ibn azm was one of the unique and controversial Muslim scholars in Islamic history. He lived in Andalusia (Muslim Spain) in the 11 th century where Mālikī school was followed by its rulers and people. After reading Shāfi‘ī's criticism of Mālik he followed the Shāfi‘ī school, but through his further research and study of criticism of this school, he finally abandoned it and based his fiqh (Islamic jurisprudence) exclusively on the Qur’ān and the Sunnah of the Prophet. This was also the view of the vanished Zāhirī school founded by Abū Sulaymān Dā’ūd in Iraq about two centuries earlier. He was then reviving this Zāhirī school which was based on literal interpretation of the divine text (the Qur'ān and the Sunnah of the Prophet) among people and scholars who did not share his views. As a Zāhirī school follower and exponent Ibn azm did not give any important value of the third and fourth sources of Islamic law, namely, the ijmā‘ (consensus of Muslim scholars) and the qiyās (analogy). The ijmā‘ of the whole scholars or the whole Muslim ummah (community) could not have taken place in the past nor will be in future, as there were Muslim scholars among jinn whose opinions were unknown. What other scholars call qiyās he called it dalīl (textual evidence). One example is that the killing of one's parents is prohibited based on the prohibition of saying to them a word of disrespect (Qur’ān 17:23). This qiyās was not accepted by Ibn azm, although he said the prohibition of killing one's parent but based on the Qur’ānic verse prohibiting the killing of anyone except in the just cause (Q. 6:151). Ibn azm was a judge in Muslim Andalusia and was considered one of the mujtahidīn. His views in many Islamic legal issues in general and his concept of ijmā’ in particular are still relevant to our research and study of Islamic legal thinking.

CHAPTER I HISTORICAL BACKGROUND A. The Background of Ibn H. azm 1. Short Synopsis of Ibn H. azm’s Life Ibn H. azm was born in Cordova (Spain) at the end of Ramad.ān 384/7 November 994, and died at Manta Lisham at the end of Sha‘bān 456/15 August 1064. His name was ‘Alī ibn (son of) Ah.mad ibn Sa‘īd ibn Ghālib ibn S.ālih. ibn Khalaf ibn Ma‘dān ibn Sufyān ibn Yazīd. The conversion of his ancestor Yazīd to Islam dates back to the time of the second caliph, ‘Umar ibn al-Khat.t.āb. He was a Persian client (mawlá) of Yazīd (the elder brother of Mu‘āwiyah) ibn Abī Sufyān. With the establishment of the Umayyad caliphate in Andalusia (Muslim Spain), Khalaf, one of the distant great grand-fathers of Ibn H. azm, moved to that country with the Umayyad household, and settled at Manta Lisham. Later, Sa‘īd, the grandfather of Ibn H. azm, settled in Cordova, where Ibn H. azm was born.1 Ibn H. azm’s agnomen (kunyah)2 was Abū Muh.ammad, but he was well-known ( ) as Ibn H. azm. Ibn H. azm was raised in a prosperous and respected family in Cordova. His distant great great grand-fathers had been Umayyad partisans, the rulers of their times. His father Ah.mad was vizier to alMans.ūr ibn Abī ‘Āmir and to his son al-Muz.affar. He learned handwriting, was taught and memorized the Qur’ān and many poems by the women—maids and relatives—in his house. He admitted that the suspicious character of these women had, to some extent, influenced him. He was suspicious of his opponents in general, especially those who attacked his views. This might be one of the causes of the antipathy that 1

Al-Dhahabī, Tadhkirat al-H.uffāz. (Hyderabad: Hyderabad Printing Press, 1376/957), vol. 3, p. 1146. (Hereafter referred to as Tadhkirat); Abū Zahrah, Ibn H. azm, pp. 22-26. 2

Kunyah is the name consisting of Abū (father) or Umm (mother) followed by the name of the eldest son or daughter.

existed between Ibn H. azm and the ‘ulamā‘ of his time. This also might be one of the reasons for his leaving politics to write and to teach religion. 3 This early phase of Ibn H. azm’s life lasted until he reached the age of fourteen, when disturbances occurred in the country. There was civil war, a struggle for power between Andalusians, Berbers, and Slavs which started in 398/1008. The Umayyad caliph Hishām II al-Mu’ayyid bi-Allāh was only a nine year boy. The power was in the hands of H. ājib al-Mans.ūr ibn Abī ‘Āmir to whom Ibn H. azm’s father became the vizier.4 Ibn H. azm’s family was compelled to move westward for safety, and they moved to their house at Balāt. Mughīth.Hishām II was overthrown and replaced by Muh.ammad II al-Mahdī. Ibn H. azm’s father, Ah.mad, who had plotted against the Slavs, was imprisoned, and his possessions were confiscated by the Slav general Wād.ih.. Although Muh.ammad II al-Mahdī was later assassinated and Hishām II retained his throne, it did not affect the fate of Ah.mad, who died in 402/1012. A year later, another disaster happened to Ibn H. azm. The house of his family at Balāt. Mughīth was destroyed by the Berbers. In the next year (404/1013-4) Ibn H. azm took refuge in Almeria. He was then a young man of twenty. Three years later, being suspected of making pro-Umayyad propaganda, he was imprisoned with his friend Muh.ammad ibn Ish.āq by the governor of the city, Khayrān. Khayrān and his ally, ‘Alī ibn H. ammūd, has successfully overthrown the Umayyad caliph, Sulaymān.5 With his friend Muh.ammad ibn Ish.āq, Ibn H. azm then went to a town called H.is.n al-Qas.r. A few months later they learned that ‘Abd alRah.mān IV al-Murtad.á, the Umayyad claimant to the caliphate, had been proclaimed caliph of Valencia, and was raising an army against the 3

Abū Zahrah, Ibn H. azm, pp. 26-27 quoting Ibn H.azm, T.ūq al-H.amāmah (Cairo: N.p., n.d.), p. 50. 4 Ah.mad had already become the vizier since 381/991. Ignaz Goldziher, The Z.āhirīs: Their Doctrine and Their History, trans. and ed. Wolfgang Behn (Leiden: E.J. Brill, 1971), p. 280. (Hereafter referred to as Z.āhirīs). 5 C. van Arendonk, “Ibn H.azm,” Shorter Encyclopaedia of Islam, ed. H.A.R. Gibb & J.H. Kramers (Leiden: E.J. Brill; London: Luzac & Co., 1961), p. 148. (Hereafter referred to as “Ibn H.azm,” S.E.I.). R. Arnaldez, “Ibn H.azm,” E.I.2. Abū Zahrah, Ibn H. azm, pp. 95 ff.

Berbers in Cordova. As a pro-Umayyad, Ibn H. azm and his friend Muh.ammad ibn Ish.āq went to Valencia by sea and joined the army of alMurtad.á. Al-Murtad.á appointed Ibn H. azm as his vizier. The army marched towards Granada. In the battle that ensued between al- Murtad.á’s army and that of the Berbers, Ibn H. azm was taken prisoner and then released.6 In 409/1018 Ibn H. azm returned to Cordova. The caliph at that time was al-Qāsim ibn H. ammūd, who was backed by the Berbers. When he was overthrown by ‘Abd al-Rah.mān V al-Mustaz.hir bi-Allāh in 414/1023 Ibn H. azm was appointed a vizier. Unfortunately for Ibn H. azm, al-Mustaz.hir was murdered seven weeks later, and he was again imprisoned. 7 In 418/1027, at the age of thirty-four, Ibn H. azm appeared at Jativa. He later became vizier again under caliph Hishām III al-Mu‘tadd bi-Allāh. But when the Umayyad caliphate lost its power forever in Andalusia in 422/1031 with the assassination of caliph Hishām III Ibn H. azm turned to writing books and teaching religion.8 He remained occupied with this work, defending his Z.āhirī school and the Umayyad claim for the caliphate, and attacking his opponents in his writings and teachings, for the rest of his life. More than thirty years later, Ibn H. azm died at the age of seventy-two in 456/1064 at his ancestral village Manta Lisham.9 2. Ibn H. azm’s Contact with Religious Scholars Ibn H. azm began studying the religious sciences at an early age. He studied H. adīth (Prophetic Tradition)10 before he reached the age of 6

Ibid Ibid. 8 Ibid. 9 It was said that Ibn H.azm died at the desert of Lablah (an old town on the Western part of Andalusia). Al-Dhahabī, al-‘Ibar, ed. Fu’ād Sayyid (Kuwayt: alTurāth al-‘Arabī, 1961), vol. 3, p. 239; Ibn Khallikān, Wafayāt al-A‘yān, ed. Muh.ammad Muh.y al-Dīn ‘Abd al-H.amīd (Cairo: Maktabat al-Nahd.ah al-Mis.riyyah, 1948), p. 15. 10 H. adīth literally means “speech,” “narrative,” “report.” The h.adīth of the Prophet is the Prophetic Tradition, i.e., the written expression of the Prophet’s 7

seventeen. He used to attend the sessions of the ‘ulamā’, accompanied by his tutor, Abū al-H. usayn ibn ‘Alī al-Fārisī.11 Since Ibn H. azm lived in Andalusia where the Mālikī school was dominant, it was a matter of course that he learned the fiqh (jurisprudence) of the Mālikī school. He studied Mālik’s al-Muwat.t.a’ under ‘Abd Allāh ibn Dah.h.ūn, a Mālikī jurist in Cordova. Ibn H. azm also studied fiqh from the qād.ī (judge) of Valencia, Ibn al-Fard.ī.12 Ibn H. azm was a truth seeker. He was not satisfied with the teachings of Mālik. We are told that Ibn H. azm said that he loved Mālik, but he loved truth more. This may indicate that Ibn H. azm had read al-Shāfi‘ī’s criticism of Mālik. Gradually, Ibn H. azm began to lean towards the Shāfi‘ī school, until finally he attached himself to the al-Shāfi‘ī school.13 Hence he began to differ from the people of Andalusia in general and their ‘ulamā ’ in particular. To increase his knowledge of Islamic law, Ibn H. azm read books written by scholars of different schools. He read the book of Ibn Umayyah, a Shāfi‘ī jurist, on laws of the Qur’ān ( ), and the Qur’ānic exegesis ( ) of Abū ‘Abd ‘Abd al-Rah.mān Baqī ibn Mukhlad, an ‘ālim (a learned man, a scholar) who did not attach himself to any madhhab (school of law). This Qur’ānic exegesis was considered by Ibn H. azm as the best of its kind. Ibn H. azm also read the Z.āhirī book on laws of the Qur’ān by a Z.āhirī qād.ī, Abū al-H. akam Mundhir ibn Sa‘īd, and statements, deeds, and tacit approvals. However, a h.adīth (a tradition) with a small “h.” is also used in this study to indicate the report of a particular saying, deed, or approval of the Prophet. A h.adīth is called by Ibn H.azm khabar, which literally means “a report,” “a news,” “an information.” 11 Abū Zahrah, Ibn H. azm, pp. 31-32. It was reported by Abū Muh.ammad ‘Abd Allāh ibn al-‘Arabī that Ibn H.azm started learning fiqh at the age of 26, because he did not know how to perform tah.iyyat al-masjid prayer, i.e., a prayer performed by a Muslim upon entering a mosque. Al-Dhahabī, Tadhkirat, pp. 1150-1151. This report has been rejected by our contemporary scholars, Abū Zahrah and ‘Abd al-Lat.īf Sharārah. For their arguments, see Abū Zahrah, Ibn H. azm, pp. 32-35, 82; A.L. Sharārah, Ibn H. azm al-Rā’id, pp. 63-64. 12 Abū Zahrah, Ibn H. azm, p. 82. 13 Ibid., p. 36.

studied Z.āhirī fiqh under the Z.āhirī jurist Abū al-Khiyār Mas‘ūd ibn Sulaymān ibn Muflit.14 Through further reading Ibn H. azm found himself leaning towards fiqh based exclusively on the Qur’ān and the Sunnah, which was also the fiqh of the Z.āhirī school. Later on, Ibn H. azm became a Z.āhirī, reviving a vanished school founded by Abū Sulaymān Dāwūd in Iraq about two centuries before him. By so doing, Ibn H. azm became a jurist who did not share the opinion of the ‘ulamā’ in his time inside and outside his country.15 There is a similarity between Ibn H. azm and Dāwūd in their educational studies and in Dāwūd’s establishing and Ibn H. azm’s reviving the Z.āhirī school. Dāwūd was born in Kufah in 202/817, where the H. anafī school was dominant. When his family moved to Baghdad, he learned Shāfi‘ī law as well as the H. anafī. He attended the lectures of many jurists, among whom was the Shāfi‘ī Abū Thawr (d. 246/860). Dāwūd became interested in Shāfi‘ī fiqh, and then shifted from the H. anafī to the Shāfi‘ī school. Later on, he went to Nishapur and studied under Ibn Rāhawayh (d. 237-8/851-2). After a profound study of Shāfi‘ī fiqh, he became dissatisfied with it. He then founded his own school, i.e., Z.āhirī, which was based exclusively on the Qur’ān and the H. adīth. Like Dāwūd, Ibn H. azm also did not follow the dominant school in Andalusia, i.e., the Mālikī, but he attached himself to the Shāfi‘ī, and then to the Z.āhirī. Both Dāwūd and Ibn H. azm accepted the ijmā‘ of the s.ah.ābah and rejected qiyās, ra’y (personal opinion), istih.sān, and taqlīd (decision based on the authority of preceding generations). Both Dāwūd and Ibn H. azm were prolific writers. Unfortunately, Dāwūd‘s works were lost, while some of those of Ibn H. azm have reached us. Ibn H. azm refers to Dāwūd in his

Ibid., pp. 82-5. Ibn Muflit (d. 426/1035) was the teacher who had greatest influence on Ibn H.azm. Omar A. Farrukh, “Z.āhirism ,” A History of Modern Philosophy, ed. M.M. Sharif (Wiesbaden: Otto Harrassowitz, 1963), vol. 1, p. 281. (Hereafter referred to as “Z.āhirism”). 15 A. L. Sharārah, Ibn H. azm al-Rā’id, p. 65

works. The fiqh of Dāwūd was collected by Muh.ammad al-Shat.t.ī (d. 1307/1887) based on the works of his (Dāwūd’s) followers.16 As a Z.āhirī jurist, Ibn H. azm was opposed by the ‘ulamā‘ in his time. His opponents at the theoretical level were the H. anafīs, and to a lesser degree, the Shāfi’īs. This is because he attacked the H. anafīs’ upholding of qiyās and istih.sān (preference, application of discretion in a legal judgement) as the bases of the sharī‘ah (the canonical law of Islam) in addition to the Qur’ān and the H.adīth, and the Shāfi‘īs’ assertion of qiyās. In theoretical and practical levels, his opponents were the Mālikīs, the followers of the prevalent madhhab in Andalusia of his time.17 Moreover, he denounced his opponents for their following their imāms (leaders), the founders of their schools, as authority instead of the Qur’ān and the H. adīth. Yet, he praised and prayed for these imāms of madhhabs in his writings, though he attacked them on some occasions. He said: Let it be known that anyone who accepts as authoritative, adheres to, or follows Mālik, Abū H.anīfah, al-Shāfi‘ī, Sufyān al-Thawrī, al-Awzā‘ī, Ah. mad, and Dāwūd, may Allah be pleased with them, they are innocent from him in this world, the Hereafter, and the Day of Judgement where written certification became manifested.18

Ibn H. azm was a notorious opponent. He attacked whoever disagreed with him. He was accused of having an insolent tongue ( ), and of neglecting to examine the truth of the news which reached him.19 The historian al-Subkī (d. 771/1370) denounced him for attacking Abū alH. asan al-Ash‘arī (d. 323/935), the founder of the Ash‘arī school of

O. A. Farrukh, “Z.āhirism,” pp. 176-7. R. Arnaldez, “Ibn H.azm,” E.I.2, p. 795. 18 Ibn H.azm, Ih.kām, vol. 1, pp. 89-90. See also ibid., p. 160; vol. 4, p. 531. 19 The allegation of al-Subkī about Ibn H.azm’s acceptance of reports brought to him without careful examination of the truth of these reports might be true for the following reasons: a) the suspicious character he inherited from women in his house; b) his acceptance of reports related by a single reliable person. 17

theology.20 Ibn H. azm asserted in his book al-Fas.l that Abū al-H. asan alAsh‘arī believed that īmān (faith, belief) was exclusively knowing Allah with one’s heart ( ), though one expressed his being a Jew, a Christian, or any other kind of infidelity. 21 Ibn H. azm’s al-Fas.l was considered by al-Subkī as one of the worst books which should not be read by people, due to its contempt of the main body of Muslims ( ), and its referring foolish words to their leaders without any examination. Ibn H. azm’s rashness in believing the reports which reached him and his immediate denunciation was one of many reasons for his expulsion from his village by Abū al-Walīd al-Bājī and his fellows,22 with whom Ibn H. azm had held a debate.23 Ibn H. azm attacked his opponents so severely that his harsh language was compared to the sword of al-H. ajjāj.24 However, Ibn H. azm was not totally wrong in his argument. O.A. Farrukh said about him as follows: “Ibn H. azm was a polemist by nature, and often right in his contentions…. Yet, he is to blame for the harsh language he used in his attacks on all religions and sects indiscriminately. On some occasions he attacked even some of those who shared with him the same doctrine.” 25 Though Ibn H. azm was often right in his contentions, he was unable to convince his opponents and to bring them to his side. His teachings remained unpopular 20

Al-Subkī, T.abaqāt al-Shāfi‘iyyah al-Kubrá, 1st ed. (N.p.: al-Mat.ba‘ah alMis.riyyah, n.d.), vol. 1, p. 43. (Hereafter referred to as T.abaqāt). 21 Ibid.; see also Ibn H.azm, Kitāb al-Fas.l fī al-Milal wa ’l-Ahwā’ wa ’l-Nih.a l 5 vols. (Baghdad: Maktabat al-Muthanná ; Egypt: Mu’assasat al-Khānjī, n.d.), vol. 4, p. 188. (Hereafter referred to as Fas.l). 22 Al-Subkī, T.abaqāt, vol. 1, p. 43. 23 Al-Dhahabī, Tadhkirat, vol. 3, p. 1154. 24 A certain Abū ’l-‘Abbās ibn al-‘Arīf said: “The tongue of Ibn H.azm and the sword of al- H.ajjāj were two brothers ( ), see alDhahabī, Tadhkirat, vol. 3, p. 1154; see also al-Ziriklī, al-A‘la-m (N.p., n.d.), vol. 5, 2nd ed. p. 59. All-H.ajjāj ibn Yūsuf (d. 95/714) was an Umayyad statesman. When he was sent by the Caliph ‘Abd al-Malik as governor to the Iraq, he threatened to cut off the heads of the Khārijī mutineers. He was notorious for his pitilessness; see H. Lammens, “H.ajjāj ibn Yūsuf,” Encyclopaedia of Islam, ed. M.Th. Houtsma et al., 1st ed. (Leyden: Late E.J. Brill Ltd.; London: Luzac & Co., 1927), vol. 2, pp. 202-204. 25 O. A. Farrukh, “Z.āhirism,” p. 286.

in his time.26 We are told that his writings were sufficient to be a heavy camel load ( ),27 but most of them did not go beyond the gate of his village Lablah, due to the aversion of the fuqahā’ (jurisprudents) towards them. Some of these writings were burned and torn to pieces at Seville. 28 As a polemic writer who was defending his views, Ibn H. azm often did not mention his opponents by name, but rather the school to which they belonged. Because either he did not know their names, or when he did he was more concerned with refuting their views. Moreover, some of the contentions were merely suppositions raised and answered by Ibn H. azm himself.29 As a scholar who had studied the different schools and sects of Islam, Ibn H. azm came to the conclusion that the true school was the Z.āhirī, while the other schools were false.30 In his assertions, he never doubted the truth of his views and the falsehood of that of his opponents. This attitude was in contrast to that of other scholars who doubted the truth of their views 26

Though some people of Majorca island followed him during his stay there from 430/1039 to 440/1049, the majority of them did not follow him, despite the fact that he was supported by Abū ’l-‘Abbās ibn Ah.mad ibn Rashīd, the local governor of that island. Ibid., p. 281. 27 Al-Fad.l, Ibn H.azm’s son, said that his father’s writings reached four hundred books, containing about eighty thousand folios. Al-Dhahabī, Tadhkirat, vol. 3, p. 1147. 28 Ibid., p. 1152. 29 The terms often used by Ibn H.azm in raising questions were: (“if they say… we say…”); for examples, see Ih.kām, vol. 4, pp. 532 line 5, 533 line 9, and 544 line 18), (“if they say… it is said to them…”); for examples, see ibid., vol. 1, p. 226 line 21, vol. 5, p. 637 line 5, vol. 8, p. 1152 lines 45 and 6), (“if he [i.e., the speaker] says… it is said to him…); for examples, see ibid., vol. 8, p. 1153 lines 8 and 13; idem, Fas.l, vol. 1, p. 107 lines 1314. This method of raising and answering questions was common among polemic writers. See, for example, Abū Ja‘far al-T.ūsī, ‘Uddat al-Us.ūl fī Us.ūl al-Fiqh, 2 vols. (Bombay: Dutprasad Press, 1318 A.H.), vol. 1, pp. 130 lines 19-21, and 136 lines 145, in which he used the term … (“if they say … it is said to them…). (Hereafter referred to as ‘Uddat al-Us.ūl). 30 A. L. Sharārah, Ibn H. azm al-Rā’id, p. 72.

and the falsehood of their opponents.31 Moreover, Ibn H. azm’s attachment with respect to his own views prevented him from changing his opinion, for he obviously considered himself had found the truth. 32 For him, holding any discussion or debate was merely a means to prove the truth of his views and the falsity of that of his opponents, and not a means of reaching the truth.33 Ibn H. azm’s attachment regarding his Z.āhirī school did not change his pro-Umayyad attitude. On the contrary, through his Z.āhirī orientation, he continued to struggle for the return of the Umayyad caliphate. So, although he left politics in his late thirties, he did not altogether abandon it. According to ‘Abd al- L at.īf Sharārah, Ibn H. azm never left politics after he became a vizier of al-Mustaz.hir. Sharārah says: The fact which was not noted by those who wrote the biography of Ibn H.azm, and by those who spoke and wrote about him later, was that Ibn H.azm did not leave politics after he had become the vizier of al-Mustaz.hir. He did not stop thinking of it one day, and he never ceased to hope for the return of his family to it, if not himself, and particularly under the sovereignty of the Umayyad throne. 34

In Sharārah’s view, Ibn H. azm’s choice of fiqh as his field of work was because he intended “to bring back a dynasty afflicted with destruction ( ) through moral social consciousness ( ).”35 Sharārah further maintains that Ibn H. azm believed that the weakness of the Umayyad dynasty was due to “terrifying moral disintegration and obvious intellectual deviation, then the invented views 31

Abū H.anīfah, for example, after giving his legal judgement on a certain issue, was asked: “Is that the truth where there is no doubt of it?” He answered: “I do not know. Perhaps it is the falsehood where there is no doubt of it.” Abū Zahrah, Ibn H. azm, p. 188. 32 Ibid. 33 Yet, this attitude was subjectively justifiable among Muslims when he argued with non-Muslim opponents, for he was defending Islam which he considered the true religion. Ibid., pp. 189-190. 34 A. L. Sharārah, Ibn H. azm al-Rā’id, p. 64. 35 Ibid.

and interpretations imposed on the Qur’ān and the H. adīth, and lastly, the controversy among religions, sects, and faiths.”36 Ibn H. azm condemns mystics and asserts that religion has no inner meaning or secret. He maintains that the Prophet had never concealed a single word of the sharī‘ah to the people. There was never a single person among those who were close to the Prophet—as a wife, a daughter, an uncle, a cousin, or a s.ah.ābī (a companion of the Prophet)—who ever concealed what he or she received from him. 37 Ibn H. azm rejects the opinion of his opponents that al-rāsikhūn fī’l-‘ilm (those firmly established in knowledge)38 know the ta’wīl (interpretation, inner meaning) of the mutashābihāt (ambiguous verses) in the Qur’ān. They base their view on the Qur’ānic verse which they choose to read in the following way: “…none knoweth its explanation save Allah and those who are of sound instruction. They say: we believe therein, the whole is from our Lord….” 39 Ibn H. azm refutes their interpretation by the following arguments: a. The word “those who are of sound instruction” is not connected to the word “Allāh” as asserted by his opponents, but rather it is the subject of a new sentence. The conjunction wa (and) in this verse joins two sentences instead of two nouns. The complete reading and the translation of this verse as maintained by Ibn H. azm as well as the ‘ulamā‘ en masse is the following:

He it is He Who hath revealed unto thee (Muhammad) the Scripture wherein are clear 36

Ibid., p. 65. Ibn H.azm, Fas.l, vol. 2, p. 16. 38 Qur’ān, 3:7 39 Ibid. The translation is based on the wording of Mohammed Marmaduke Pickthall, The Meaning of the Glorious Koran (New York and Scarborough: George Allen and Unwin Ltd., n.d.). He translates al-rāsikhūn fī ’l-‘ilm as “those who are of sound instruction.” 37

revelations—They are the substance of the Book—and others (which are) allegorical. But those in whose hearts is doubt pursue, forsooth, that which is allegorical seeking (to cause) dissension by seeking to explain it. None knoweth its explanation save Allah. And those who are of sound instruction say: ‘We believe therein; the whole is from our Lord’; but only men of understanding really heed. (Qur’ān 3:7)40

b. Allah prohibited people from seeking the ta’wīl of the mutashābihāt, asserting that those who seek and follow its ta’wīl are doubters and followers of fitnah (dissension); c. If al-rāsikhūn fī’l-‘ilm had known its ta’wīl, they would have explained it to the people, because they are enjoined by Allah to do so. Ibn H. azm refers to the 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 the power to curse.” (Qur’ān 2:159).41

If they explained it to the people, Ibn H. azm goes on to say, it would not be ambiguous any longer, so that all people would have the same knowledge. Yet, this is not the case, as mentioned in the verse in question. Should they conceal it, on the other hand, they would be cursed by Allah. 40

Ibid. M.M. Pickthall translated the word mutashābihāt as “allegorical” instead of “ambiguous”. Reference to Qur’ānic verses and translation relating to them in other places of this book are mostly his. 41 The other verse referred to by Ibn H.azm is: And (remember) when Allah laid a charge on those who had received the Scripture (He said): Ye are to expound it to mankind and not to hide it….” (Qur’ān 3:187).

d. ‘Ā’ishah reported that the Prophet, after reading the verse in question said: “If you see people who follow what is ambiguous [in the Qur’ān], they are those whom Allah called such [i.e., those in whose heart is doubt]. Therefore, beware of them.”42 According to Sharārah and Farrukh the emergence of the Z.āhirī school in Iraq in the third/ninth century may be traced to a reaction to the following movements: the Ismā‘iliyyah and the Mu‘tazilah. 43 The Ismā‘iliyyah was an esoteric movement among the Shī‘ah which appeared in the second/eighth century. The members of this movement called themselves Ismā‘iliyyah, because they separated themselves from the Twelver Shī’ah in considering Ismā‘īl (d. 145/762), the eldest son of Ja‘far al-S.ādiq (d. 148/765), the sixth imām, as their imām, instead of Mūsá alKāz.im (d. 183/799), the seventh imām of the Twelver Shī‘ah. This movement had many nicknames. In Iraq it was called al-Bāt.iniyyah (the Bāt.inīs), al-Qarāmit.ah (the Qarmatians) and al-Mazdakiyyah (the Mazdakīs). In Khurasan it was called al-Ta‘līmiyyah (the Ta‘līmīs), and al-Mulh.idah (the Mulh.idīs). It was most widely known as the Bāt.iniyyah (seekers of the inner or spiritual meaning of the nas.s.), because they asserted that every z.āhir (apparent state of a thing) had a bāt.in (an inner or secret meaning). One example of this inner meaning was their statement that Allah is neither existent nor non-existent, neither knowing nor ignorant, because, in their view, actual affirmation of the attributes of Allah, like Existence, Knowing and so on, were shared by other existing things, and this was tashbīh (anthropomorphization of Allah). Therefore, they did not base their judgement about Allah’s attributes on absolute affirmation or absolute negation, but rather between the two. They said that Allah was the God of two opposite things, the Creator of two adversaries, and the Judge between two contradictory things ( ).44 According to the Bāt.iniyyah every verse of the Qur’ān, not only the mutashābihāt, but even any object, act, or person in it 42

Ibn H.azm, Ih.kām, vol. 4, pp. 492-493. A. L. Sharārah, Ibn H. azm al-Rā’id, p. 73. O. A. Farrukh, “Z.āhirism,” p. 275. 44 Al-Shahrastānī, al-Milal wa ’l-Nih.al (in the margin of Ibn H.azm’s Fal), vol. 2, p. 29. B. Carra de Vaux, “Bāt.iniyya,” S.E.I., pp. 60-61. 43

has an inner meaning. This inner meaning should not be imparted to the ‘awām (laymen), lest it would be misunderstood by them. It should be kept secret by the khawās.s. (the élite who know this inner meaning) themselves. To a lesser degree, beside the Ismā‘ilīyah, the term bāt.inīyah was also applied by Sunnī writers to those who, in their opinion, rejected the literal meaning of the nas.s. in favour of its inner meaning.45 Another movement which the Z.āhirī school was partly a reaction against, was the Mu‘tazilī theological school which emerged in the beginning of the second/eighth century. This school applied reason and philosophy in interpreting the nas.s. instead of referring to its traditional interpretation.46 They called themselves ahl al-‘adl wa ’l-tawh.īd (the Champions of Divine Justice and Oneness) for their rejection of the doctrine of Divine predestination and His attributes. 47 This Mu‘tazilī school was adopted by al-Ma’mūn as the official doctrine of the state. In the third/ninth century Dāwūd founded the Z.āhirī school in Iraq to counteract the Bāt.inīyah, the Mu‘tazilah, and those who went beyond the traditional interpretation of the nas.s.. This Z.āhirī school insisted on the literal meaning of the nas.s. and keeping away from any interpretation of it.48 Although the Z.āhirī school was disappearing in the East and was replaced by the H. anbalī school in the fifth/eleventh century, Ibn H. azm revived it in Andalusia as a reaction against the corruption in political and judicial fields. The nas.s. was violated and interpreted beyond its true meaning. Qiyās, personal opinion, and biased fatāwá ) ( were being exercised. Ibn H. azm was aware of how the people of Andalusia agreed and pledged allegiance to Hishām al-Mu’ayyid bi-Allāh in 365/976,

For further details, see M.G.S. Hodgson, “Bāt.iniyya,” E.I.2, vol. 1, pp. 1098-

1100. 46

O. A. Farrukh, “Z.āhirism,” p. 275. For further details, see Al-Shahrastānī, Milal, vol. 1, pp. 54 ff; ‘Abd al-Qāhir ibn T.āhir al-Baghdādī, al-Farq bayna’l-Firaq, ed. & comment. Ibn Khallikān, Wafayāt al-A‘yān, ed., Muh.ammad Muh.y al-Dīn ‘Abd al-H.amīd (Cairo: Mat.ba‘at al-Madanī, n.d.), pp. 114-202. (Hereafter referred to as Farq). 48 O. A. Farrukh, “Z.āhirism,” p. 275; A. L. Sharārah, Ibn H. azm al-Rā’id, p. 73. 47

who was still a boy of nine years.49 He witnessed how people in 399/1009 agreed to transfer the office of the Caliph to the non-Qurayshī ‘Abd alRah.mān ibn Mans.ūr al-‘Āmirī, while the Prophet had decreed that the imāmah (leadership) had to be among the Quraysh. 50 He realized that all this political instability and legal confusion occurred as the outcome of applying ta’wīl, qiyās, ra’y, and other excesses in the matters of sharī‘ah. In his view, the sole remedy for this corruption was to bring people back to the Qur’ān and the teachings of the Prophet. He maintains that the Qur’ān is clear, while what is implied in general terms (mujmal) is explained by other verses and by the Prophet himself. Whatever Allah and the Prophet did not pronounce upon is permissible (mubāh.). This is the view of Ibn H. azm in upholding what is apparent in the nas.s. without going beyond it is purely Z.āhirī in nature. In other words, the Z.āhirī school was seen by Ibn H. azm to be the only solution in saving Andalusia from corruption and destruction. This is the reason for his strong attachment to this school. Ibn H. azm’s motive for reviving and promoting the Z.āhirī school was both political and religious. However, in the second half of his life he confined himself to religious activity, for politics was closely related to religion. The establishment of the Islamic society and the appointment of an imām whose duty was to protect Islam and to apply its teachings in all of its aspects were parts of religion. Teaching the Z.āhirī fiqh to Muslims and their leaders was also a political activity, because through this teaching, they became guided and controlled. They would know their duties in the light of the sharī‘ah. Ibn H. azm stressed the importance of fiqh and teaching it to the people, and dedicated his life to this purpose. He said: …. And as we are sure that the world is not an everlasting abode, but an abode of trial and testing and a passing way) ( to the abode of eternity, so it is true that there is no benefit )‫ ( َفائِ َدة‬in this world and of being 49

Ibn H.azm considered the election of a boy for the position of caliph as violation of the sharī‘ah. He referred to a h.adīth where the Prophet said that a child is lifted from the obligation of Islam until he attains puberty; see Fas. l, vol. 4, p. 166. 50 Ibid.; for further details, see A. L. Sharārah, Ibn H. azm al-Rā’id, pp. 65-67.

in it, except [in] knowing what Allah the Almighty has ordered us, teaching it to the ignorant ones ) ( and acting according to it... 51

Ibn H. azm emphasizes his Z.āhirī belief, not only in his theological and legal writings, but also in his poetry. This is shown most pointingly in the following lines: * * * * A person blames me about someone whose beauty enchanted me, He prolongs his blame of me for [falling in] love and says: “Are you a victim of [love on seeing] a face which shone, [so that] you do not see other than it (the face), [i.e., the rest part of the body], And you do not know how the body is?” So, I said to him: “You have exaggerated in blaming [me] unjustly, And I have a long answer if you want [it]. Don’t you know that I am a Z.āhirī, And I [judge] Upon what is apparent until a dalīl (proof, evidence) stands [against it]?”52

In propagating and defending the Z.āhirī view, Ibn H. azm’s relation with other ‘ulamā‘ was not amicable. His school was considered intruding and shādhdh (deviating),53 for it was the revival of a vanished school among people who had already followed the Mālikī school. His books were destroyed, burned, or forbidden to be read by common people, due to his attack on leading scholars, like Abū ’l-H. asan al-Ash‘arī. Ibn H. azm, on his side, attacked and reproached them for their following their imām instead of the Qur’ān and the Sunnah.

Ibn H.azm, Ih.kām, vol. 1, p. 8. Ibn Khallikān, Wafayāt, vol. 3, pp. 14-15. In lyric poetry the poet often uses the masculine gender instead of the feminine in referring to his beloved, as the above poem of Ibn H.azm when he put “his beauty” ) ( instead of “her beauty” ) (. 53 This was rejected by Ibn H.azm. For him, shudhūdh (deviation) was only being away from the truth, and the true school is the Z.āhirī; cf. below, pp. 72-73. 52

B. The Problems of the Definition and the Occurrence of Ijmā‘ 1. The Definitions of Ijmā‘ Ijmā‘ is recognized by Muslims as the third source of Islamic jurisprudence. However, Muslim jurists do not agree in what ijmā‘ is. They give different definitions and interpretations of ijmā‘. The root meaning of ijmā‘ is: “to collect”, “to bring together”, and “to draw together.” means “I collected the camels together (taken as booty).” The Arabic idiom (falāt majma‘ah, mujmi‘ah or mujammi‘ah) means “an open ground where people assembled fearing to be lost or [from] other [danger].”54 Another root meaning of ijmā‘ is “to determine”, and “to decide”. means “I decide (determine) upon the affair.” It is in this meaning that it is mentioned in the Qur’ān, which means “so decide upon your course of action.” (Q. 10:71).55 The Prophet meant this root meaning of ijmā‘ when he said that fasting was not legal for one who had not decided ) ( to fast the night before.56 Another root meaning of ijmā‘ is: “to agree upon.” It is an agreement between two or more persons.57 Technically, there are many definitions given by Muslim jurists, based on their conceptions about it. In this section we shall deal with Ibn H. azm’s definition of ijmā‘ and that of his opponents among the majority

Abū ’l-Fad.l ibn Manz.ūr, Lisān al-‘Arab, (Beirut: Dār Bayrūt lil-T.ibā‘ah wa ’l-Nashr, 1375/1956), s.v. j-m-‘; Edward William Lane, Arabic English Lexicon (London and Edinburg: William and Norgate, 1863), s.v. j-m-‘. 55 M.M. Pickthall puts it in the verse 72, for he makes at the beginning of the su-rah (chapter) as one verse, whereas it is part of a verse, i.e., verse no. 1. 56 Ibn Manz.ūr, Lisān al-‘Arab, s.v. j-m-‘; Majd al-Dīn al-Fīrūzābādī, Qāmūs al-Muh.īt. (Egypt: Mat.ba‘at al-Sa‘ādah, 1272/1855-6), s.v. j-m-‘. 57 Ibid.

of jurists, as well as that of al-Naz.z.ām (d. 221/836) from the Mu‘tazilī theological school and al-T.ūsī (d. 460/1068) among the Shī‘ī sect. Ibn H. azm gives the following definition of ijmā‘: “Ijmā‘ which is based on h.ujjah (proof) in the sharī‘ah is the matter in which there is conviction that all the s.ah.ābah, may Allah be pleased with them, asserted and adhered to from their Prophet [Muhammad], peace be upon him.” 58 What Ibn H. azm means by this definition is that ijmā‘ is the exclusively the unanimity of the whole Muslim community (laymen as well as jurists) on what the s.ah.ābah received and witnessed from the Prophet. In other words, it is ijmā‘ based on transmission ) (.59 Ibn H. azm maintains that there is no ijmā‘ in religion other than this ijmā‘.60 In another version of his definition of ijmā‘, Ibn H.azm elaborates his view as follows: Ijmā‘ is what is known and asserted with conviction by all the s.ah.ābah of the Messenger of Allah, and none of them disagreed. It is like our certainty that they prayed with him the five-daily prayers, as they [i.e., the prayers] are in the number of their rukū‘ (bowing) and sujūd (prostration), or that they knew that he prayed with people; likewise is that all of them [i.e., all the s.ah.ābah] fasted with him in [the month of] Ramad.ān in the city [of Madinah] ) (; and so are the rest of the sharā’i‘ (sing. sharī‘ah, canonical laws of Islam) recognized with similar certainty. He who does not affirm them [i.e., the sharā’i‘] is not among the believers. This is what nobody disagreed on its being ijmā‘. They [i.e., the s.ah.ābah] were at that time the whole believers. There are no believers on earth other than they. Whoever claims that other than this is ijmā‘, he has to prove what he claims ) ( and there is no 58

Ibn H.azm, Ih.kām, vol.1, p. 43. Camille Mansour, l’Autorité dans la Pensée Musulmane: la Concept d’Ijmā‘ (Consensus) et la Problématique de l’Autorité (Paris: Librairie Philosophique J. Vrin, 1975), p. 67, n. 2. (Hereafter referred to as Autorité). 60 Ibn H.azm, Ih.kām, vol.1, p. 43 59

way [for him] to [do] it.61

From these two definitions of ijmā‘ given by Ibn H. azm we can draw the following conclusions: a. Ijmā‘ is the unanimity of the s.ah.ābah on what they saw, heard, knew, and received with certainty from the Prophet. It is the Sunnah itself. According to Ahmad Hasan, “… roughly until the middle of the second century of the Hijrah, Sunnah remained so close to ijmā‘ that both were used interchangeable, rather sometimes they were identified.”62 Another contemporary scholar, Mohammad Talaat al-Ghunaimi sates, “Ijmā‘ stands on the border line between primary and secondary source in the Islamic law.”63 The ijmā‘ which is maintained is identical to the Sunnah and stands as the primary source of Islamic law, while that maintained by his opponents, in our view, stands as the second one. b. What the s.ah.ābah had unanimously agreed upon should also be accepted by all Muslims in later generations in order for them to remain believers. As this type of ijmā‘ is identical to the h.adīth of the mutawātir type (see below on khabar al-tawātur), rejecting it would mean denying the Sunnah, and this would lead to infidelity. However, rejecting an ijmā‘ which is irrelevant to the Islamic faith, like the fact that the Prophet imposed taxes on the Jews of Khaybar does not lead to infidelity, but rather indicates one’s ignorance. c. Ibn H. azm insisted on the unanimity of all Muslims (jurists as well as laymen) in the occurrence of ijmā‘. As the time of the s.ah.ābah was the only time accepted by Ibn H. azm for the occurrence of ijmā‘, and as they comprised the totality of Muslims at that time, their unanimity, which was the total ijmā‘, occurred. This is also the view of Ibn H. azm’s 61

Idem, al-Muh.allá, ed. Ah.mad Muh.ammad Shākir, 11 vols. (Egypt: Mat.ba‘at al- Nahd.ah, 1374 A.H.), vol. 1, p. 54. 62 Ahmad Hasan, “Ijmā‘, an Integrating Force in the Muslim Community,” Islamic Studies 6 (Dec. 1967), p. 392. (Hereafter referred to as “Integrating Force”). 63 Mohamad T. al-Ghunaimi, The Muslim Conception of International Law and the Western Approach (The Hague: Martinus Hijhoff, 1968), p. 117. (Hereafter referred to as Muslim Conception).

predecessor, al-Shāfi‘ī (d. 204/820) who maintained the total ijmā‘.64 However, al-Shāfi‘ī did not restrict ijmā‘ to the first generation. We should remember that Ibn H. azm and Dāwūd, before they became Z.āhirī, were Shāfi‘īs. d. Matters agreed upon by the s.ah.ābah are necessarily known by them. There is no room for doubt in this matter.65 In the foregoing definitions of ijmā‘ Ibn H. azm gave us one type of ijmā‘, i.e., the ijmā‘ of the s.ah.ābah.66 However, he mentioned two types of ijmā‘ in his writings. The first one is as follows: It is everything which no Muslim doubts that whoever does not assert it is not a Muslim, like: bearing witness that there is no god but Allah and that Muhammad is the messenger of Allah, the injunction of the five-daily prayers, the fasting in the month of Ramad.ān, the prohibition against [eating] corpse, blood, or pork, the affirmation of the Qur’ān [as revelation], and the zakāh (alm tax) in general ) (. These are matters which when they come to someone’s ears and he does not affirm them, he is not a Muslim. If it is so, then everyone who affirms them is a Muslim. So, it is true that they are ijmā‘ of the whole followers of Islam. 67

This type of ijmā‘ involves i‘tiqādāt (articles of religious faith or practice) which should be accepted by Muslims, and things known by necessity ) (. This is also the opinion of al-Shāfi‘ī who maintained that there was ijmā‘ in several ordinance which could not be unknown to Muslims, so that if we said that people agreed upon a 64

See N.J. Coulson M.A., A History of Islamic Law (Islamic Surveys), vol. 2 (Edinburg: Edinburg University Press, 1971), p. 59. See also Fazlur Rahman, Islamic Methodology in History (Karachi: Ripon Printing Press, 1965), p. 23. 65 This is one example of Ibn H.azm’s adherence to the idea of rejecting z.ann (doubt, conjecture, uncertainty) in religion, see Ih.kām, vol.4, p. 531. 66 See also Ibn H.azm’s view on the nature of ijmā‘ ) ( in his Marātib al-Ijmā‘ fī ’l-‘Ibādāt wa ’l-Mu‘āmalāt wa ’l-I‘tiqādāt (Cairo: Maktabat al-Qudsī, 1357 A.H.), p. 12. (Hereafter refered to as Marātib). 67 Idem, Ih.kām, vol. 4, pp. 510-511; see also ibid., p. 529.

particular issue, no Muslim would object to its being ijmā‘. For example, the z.uhr (afternoon) prayer is four raka‘āt (units) and the intoxicant is forbidden.68 These are matters reported by Muslims from the Prophet and transmitted by them from one generation (i.e., that of the s.ah.ābah) to another until the present. The other type of ijmā‘ asserted by Ibn H. azm is as follows: It is something of the deed of the Messenger of Allah (peace be upon him), witnessed by all of the s.ah.ābah, may Allah be pleased with them, or known with conviction by everyone of them, who was absent from him, like: his deed at Khaybar, where he gave it [i.e., the land of Khaybar] to the Jews [to be cultivated] with [the condition to give the Prophet and the Muslims] half of its crops or dates; the Muslims were to driv them [i.e., the Jews from the land of Khaybar] whenever they want it [to do so]. There is no doubt for everyone about this [fact], that there would be no Muslim left in Madīnah who had not witnessed it, or not reached him. This happened to a group 69 of women, children, and weak people. There would be no Muslim left in Makkah and the remote land who had not known and spread it out. However, this kind of ijmā‘ was challenged by a group of people after the time of the s.ah.ābah, may Allah be pleased with them, due to their misgivings and [despite] their intention towards good, and due to their mistake in their exercising ijtihād (independent judgement in a legal question, based upon the interpretation and application of the Qur’ān and the Sunnah).70

This type of ijmā‘ is not so strong as the first one, for it is liable to be challenged and violated by some people after the time of the s.ah.ābah, due to their lack of information, or their wrong judgement drawn from their 68

Muh.ammad Idrīs al-Shāfi‘ī, Jimā‘ al-‘Ilm, ed. Ah.mad Muh.ammad Shākir (Egypt: Mat.ba‘at al-Ma‘ārif, 1359/1940), pp. 65-66. Idem, al-Risālah, ed. comment. Ah.mad Muh.ammad Shākir, 1st ed. (Cairo: Mat.ba‘at al-Babī al-H.alabī, 1358/1940), no. 1559. 69 Perhaps the words here should be read as we have translated above to give sense to the sentence. Ibn H.azm, Ih.kām, vol.4, p. 511. 70 Ibid. See also ibid., pp. 530-531. The words on p. 530 line 21 are inverted and should be read

to suit the definition given on p. 511.

exercising ijtihād. However, this ijmā‘ was adhered to by all of the s.ah.ābah, and the majority of people in later generations, and is called ijmā‘ of the s.ah.ābah. Although this ijmā‘ is liable to be challenged by later generations, this challenge will not affect its position as ijmā‘, because the challenger is not a s.ah.ābī. Otherwise, if the challenger is a s.ah.ābī, his challenge will be regarded, and the ijmā‘ will be invalid, because it lacks the unanimity of the s.ah.ābah, which is one of the conditions of ijmā‘ laid down by Ibn H. azm.71 We should bear in mind that the ijmā‘ recognized and adhered to by Ibn H. azm and the Z.āhirī school is the ijmā‘ of the s.ah.ābah in its broad meaning. It comprises the two types of ijmā‘ we are dealing with, because both types require the unanimity of the s.ah.ābah, who were the immediate transmitters of the teachings of the Prophet. This unanimity of the s.ah.ābah occurred after the death of the Prophet upon the legal judgement of a certain issue they had received from the Prophet. 72 Both types involve all Muslims. The first involves the s.ah.ābah and all Muslims in all times in later generations. The second type, or the ijmā‘ of the s.ah.ābah in its narrow meaning, involves the s.ah.ābah who were all Muslims in their time. Unlike Ibn H. azm’s view of ijmā‘, the majority of the fuqahā’ (jurisprudents) assert that ijmā‘ is the agreement of all mujtahidīn (sing. mujtahid; legists who exercise ijtihād) of the Muslim community in a particular time on the legal judgement of a particular issue based on ijtihād after the death of the Prophet.73 They also maintain that the occurrence of 71

See the definition of the second type of ijmā‘ on p. 19 above. The other condition of ijmā‘ is that it should be based on nas.s.. 72 Muh.y al-Dīn ibn ‘Arabī, the second treatise on the Z.āhirī school, Majmū‘ Rasā’il fī Us.ūl al-Fiqh, 1st ed. (Beirut: al-Mat.ba‘ah al-Ahliyyah, 1324 A.H.), p. 29. (Hereafter referred to as Majmū‘ Rasā’il). 73 ‘Umar ‘Abd Allāh, Sullam al-Wus.ūl li-‘Ilm al-Us.ūl (Egypt: Dār al-Ma‘ārif, 1956), p. 198; Dr. Mukhtār al-Qād.ī, al-Ra’y fī ’l-Fiqh al-Islāmī, 1st ed. (Cairo: Mat.ba‘at al-Fikrah, 1368/1949), 169. (Hereafter referred to as Ra’y). The word

ijmā‘ should be in a particular time after the death of the Prophet, including the time of the s.ah.ābah. It is because they assert the impossibility of the occurrence of the total agreement of all Muslims in all times (except on the day of Resurrection where all people will gather together and where ijmā‘ will not be needed). But like Ibn H. azm they maintain that ijmā‘ during the time of the Prophet was not needed, because the Prophet himself was the authority.74 Ijmā‘ which is the produce of ijtihād as advocated by the majority of ‘ulamā‘ is not accepted by Ibn H. azm, because ijtihād is fallible. The first event which was later considered by Muslim jurists as ijmā‘ based on qiyās is the election of Abū Bakr as Caliph. As the Prophet had appointed him to lead the prayer during his (the Prophet’s) illness before his death, ‘Umar nominated him to lead the community as Caliph. This proposal was accepted by the people, and Abū Bakr became Caliph.75 Ibn H. azm counters this view and maintains that the succession of Abū Bakr was based on nas.s.. He cites two h.adīths, each with two sanads (chains of narration). One of these h.adīths was reported by Ā’ishah, and the other from Ibn ‘Abbās. Ā’ishah reported the following: The Messenger of Allah, peace be upon him, said to me in his illness: ‘Call Abū Bakr and your brother to me so that I write a letter, for I fear that a wisher will wish and a speaker will speak: “I am more appropriate [for the succession],” whereas Allah and the prophets reject [anyone for the succession] except Abū Bakr.76

Ibn H. azm argues further that if Abū Bakr was elected Caliph by means of ijmā‘ based on qiyās, the application of qiyās in this case could be invalid. It is because in Ibn H. azm’s view, the ‘illah of the khilāfah (succession) is different from that of the prayer. An Arab, a mawlá (a on line 13 of this page is misprinted and should be read to suit the meaning of the sentence. 74 This ijmā‘, is called ijmā‘ us.ūlī. Camille Mansosur, Autorité, p. 67. 75 Ibn H.azm, Ih.kām, vol.7, p. 982; Badrān Abū al-‘Aynayn Badrān, Us.ūl alFiqh ([Egypt]: Dār al-Ma‘ārif, 1965), p. 216. 76 In another version, instead of “and the prophets” it reads “and the believers,” see Ibn H.azm, Ih.kām, vol.7, p. 985. For the other h.adīth, see ibid., p. 984.

client), a slave, and a man who does not master military and economic administration as well as laws and good conduct, can lead the prayer, while a caliph should be a solid Qurayshī, who knows politics and its aspects, even if he is not perfect in reading the Qur’ān. Ibn H. azm maintains that prayer is subordinate to and a far‘ (a branch, a section) of the imāmah, and not vice versa. Therefore, according to Ibn H. azm, applying qiyās for the succession of Abū Bakr is not permissible.77 With regard to al-Naz.z.ām’s view of ijmā‘, he rejects it as h.ujjah.78 However, we are told that he gives the following definition of ijmā‘: “It is every authoritative statement, even of a single person ( ”(.79 The example of ijmā‘ as reportedly given by al-Naz.z.ām himself is that if a person is passing by a house, sees signs of the washing of a dead person, and hears an old woman coming out of the house saying that so-and-so has died, this news (report) is accepted as authoritative, and therefore, as ijmā‘.80 Al-Naz.z.ām seems to be contradicting himself when he rejects the authority of ijmā‘, while at the same time he emphasizes its authority. But what he means is that he is rejecting the authority of ijmā‘ maintained by the majority of ‘ulamā‘, because it is based on their ijtihād which is, as mentioned before, fallible. In this case, his view is parallel to that of Ibn H. azm. On the other hand, al-Naz.z.ām’s emphasis on the authority of ijmā‘ indicates his skepticism on the occurrence of ijmā‘ not based on an authoritative statement. This statement, as we have seen in the above 77

The application of qiyās from far‘ to as.l, Ibn H.azm aruges, is itself prohibited by the adherents of qiyās. For further details, see, ibid., p. 986 ff. 78 Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64. Al-Sharastānī mentions thirteen views of al-Naz.z.ām which differ from those of other Mu’tazilīs; among them are his rejection of ijmā‘ and his assertion of the imāmah of ‘Alī instead of Abū Bakr. For further details, see Milal, vol. 1, pp. 67-74. 79 Al-Ghazālī, al-Mustas.fá min ‘Ilm al-Us.ūl, 1st ed. (Cairo: al-Maktabah alTijāriyyah al-Kubrá, 1356/1937), vol. 1, p. 173. (Hereafter referred to as Mustas.fá). Sayf al-Dīn al-Āmidī, al-Ih.kām fī Us.ūl al-Ah.kām (Cairo: Mat.ba‘at al-Ma‘ārif, 1914), vol. 1, p. 280. (Hereafter referred to as Ih.kām al-Āmidī). 80 Abū Bakr al-Sarakhsī. Us.ūl al-Sarakhsī, ed. Abū al-Wafā’ al-Afghānī, 2 vols (N.p.: Dār al-Kuttāb al-‘Arabī, 1372 A.H.), vol. 1, p. 330.

example, is what is known by necessity. Here again, al-Naz.z.ām has similar views with that of Ibn H. azm. Both al-Naz.z.ām and Ibn H. azm reject qiyās. However, Al-Naz.z.ām differs from Ibn H. azm by asserting that the statement of the infallible imām is a h.ujjah.81 But for Ibn H. azm, the only authority after the Qur’ān is that of the Prophet. There is an indication that al-Naz.z.ām accepts the ijmā‘ of the s.ah.ābah maintained by Ibn H. azm, as it is based on nas.s.. Al-Naz.z.ām considers the ijmā‘ of the s.ah.ābah on the penal law of an intoxicant drinker (i.e., eighty lashes) as an error, for he asserts that the consideration should be taken of the nas.s. and the tawqīf (the teachings of the Prophet), i.e., forty lashes.82 That may mean that al-Naz.z.ām accepts the ijmā‘ of the s.ah.ābah based on nas.s. as valid and sound, while ijmā‘ based on qiyās is rejected by him. This is because, like Ibn H. azm, he rejects qiyās. In this case al-Naz.z.ām has probably the same view as Ibn H. azm’s concurring the ijmā‘ of the s.ah.ābah. According to al-T.ūsī, the ijmā‘ of the ummah (Muslim community) is right and h.ujjah, because the opinion of the infallible imām must be included in this ijmā‘. It is because, al-T.ūsī contends, there is not a single period of time which is free from an infallible imām who preserves the sharī‘ah. The opinion of this imām is h.ujjah to which Muslims should return, just as they did with that of the Prophet. An opponent may argue that the opinion of the imām might be excluded from this ijmā‘. To this, alT.ūsī asserts that whenever the opinion of the imām is supposed to be isolated from ijmā‘, then this ijmā‘ is not ijmā‘ at all, because of the absence of unanimity which is necessary for the occurrence of ijmā‘.83 What is the significance of ijmā‘ and maintaining that it is h.ujjah? According to al-T.ūsī, the ijmā‘ is a means to know the opinion of the imām which is often unknown. However, when the opinion of the imām is 81

Al-Shahrastānī, Milal, vol. 1, p. 72. In this case al-Naz.z.ām is leading towards the view of the Shī‘ah considering the statement of the imām as h.ujjah. 82 Ibid., pp. 75-76. According to Ibn H.azm both forty and eighty lashes are Sunnah and are ijmā‘ of the s.ah.ābah based on nas.s.. 83 Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64.

known, it is accepted as h.ujjah, while others are disregarded. h.ujjah because it embodies the opinion of the imām which h.ujjah.84 Al-T.ūsī maintains that if time is supposed to be free infalible imām, ijmā‘ will not become h.ujjah, because there is indicating that it is h.ujjah.85

Ijmā‘ is is itself from an no dalīl

The ijmā‘ meant by al-T.ūsī is the unanimity of the ‘ulamā‘ of the Shī‘ah sect. It is because, in al-T.ūsī’s view, the opinion of the infallible imām will be identical with theirs. Should they disagree upon the legal judgement of a certain issue and divide themselves into two groups, al-T.ūsī asserts that the opinion of the imām can still be known. It is by finding any dalālah (indication) from the Qur’ān or a decisive Sunnah ( ) which denotes the rightness of one group among them. Once this dalālah is found, the opinion of the imām becomes known to be with that of this group. Otherwise, if no dalālah is available, the opinion of the members of the group who are known in person and by lineage is rejected, because none of them is the hidden and infallible imām whose opinion should be accepted. If both groups consist of known and unknown ‘ulamā‘, al-T.ūsī chooses any opinion of the two, and treats them like two contradictory khabar, i.e., h.adīth on which no preponderance is known. This also indicates the permission to choose any of the two opinions, because the opinion of the imām is not with any of the two. Otherwise, the imām should not remain concealed and silent any longer, for he has to reveal himself and unfold the truth on the issue concerned.86 Even though al-T.ūsī does not give the definition of ijmā‘ according to the Shī‘ah sect, the definition referred to this sect is: “It is the agreement which embodies the views of the infallible imām and not merely the agreement of the ‘ulamā‘ on an opinion.”87 84

Ibid. For further details on al-T.ūsī’s argument in refuting the dalīls presented by his opponents among the Sunnī jurists for the (the authority of ijmā‘), see ibid., pp. 64-75. 86 Ibid., pp. 75-76; for further details, see ibid., pp. 77 ff. 87 S.ubh.ī Mah.mas.s.ānī, Falsafat al-Tashrī‘ al-Islāmī, trans. J. Farhat Ziadeh (Leiden: E.J. Brill, 1961), p. 78. Amng the Shī‘ī jurists, ‘Alī al-Mushkīnī al-Ardabīlī gives us four types of ijmā‘ according to the Shī‘ah, which are: a) the agreement of 85

Unlike Ibn H. azm, al-T.ūsī does not limit the occurrence of ijmā‘ to a particular time after the death of the Prophet. However, he asserts that ijmā‘ is not h.ujjah per se, and that the only ijmā‘ which is h.ujjah is that of the ‘ulamā‘ among the Shī‘ah sect, because it embodies the opinion of the infallible imām. But like Ibn H. azm, he also rejects qiyās.88 Al-T.ūsī rejects the opinion of al-Naz.z.ām in accepting the authority of a single statement. He contends that if we see a man tearing his clothes, slapping his face (in lamentation), and states that the sick man who is with him has been dead, this statement cannot be accepted as something which necessitates knowing ) (. It is because this man’s action can be just pretension and was done for many purposes which will be discovered later.89 But al-T.ūsī shared the view of al-Naz.z.ām in considering the statement of the infallible imām as h.ujjah, as asserted by al-Shahrastānī above.90 2. The Occurrence of Ijmā‘ There is no common agreement among the fuqahā’ regarding the occurrence of ijmā‘, including Ibn H. azm. The majority of the fuqahā’ among the Sunnīs believe in its occurrence. Ibn H. azm accepts its occurrence exclusively during the time of the s.ah.ābah, i.e., after the death of the Prophet while they were all in Madīnah.91Outside this context, Ibn H. azm rejects the occurrence of ijmā‘. He bases his argument on the following: 1) Ijmā‘ would never and has never occurred other than in that the whole ‘ulamā’ including the imām, b) the agreement of some of them including the imām, c) the agreement of all of them excluding the imām, and d) the opinion of the imām alone; for further details, see al-Ardabīlī, Kitāb Mus.t.alah.āt al-Us.ūl (N.p.; 1383 A.H.), pp. 29 ff. 88 For further details on al-T.ūsī’s argument in refuting qiyās, see‘Uddat alUs.ūl, vol. 2, pp. 89 ff. 89 Ibid., vol. 1, pp. 41-42. 90 See n. 83 above. 91 Ibn H.azm, Ih.kām, vol.4, p. 502. It is possible that people of different nature agree on a matter on which they have the same level of perception, understanding, and being readily grasped, but this, Ibn H.azm believes, is not ijmā‘ in the field of the sharī‘ah. Ibid.

particular age and in that particular place, because he believes that it has been impossible since that time for all Muslim ‘ulamā‘ to gather together at the same time and at the same place. Following the death of the Prophet and the time of the s.ah.ābah most of the ‘ulamā‘ scattered to widely separated points. Since then they have never, and would never, gather together. Some of the were in Yemen, others were in Sind and the Kabul rivers, in the Western part of Berber land and till the frontiers of Armenia.92 2) It is the nature of human beings to differ in their opinions and characters, and this makes the occurrence of ijmā‘ impossible. Some people are tender-hearted, others are hard-hearted; some are powerful, others are weak; some incline to softness of life and tend to luxury, others tend to roughness, while some are moderate. Due to the difference of temper, nature and inclination, it would be by no means possible for all of the ‘ulamā‘ to agree in making a judgement with their own opinion. 93 Because of this Ibn H. azm, like many other fuqahā’, rejects the occurrence of ijmā‘. The evidence he uses to prove his position is totally different from that used by his opponents.94 While he differs from his opponents in the evidence he gives to support his stand, there is total agreement on the acceptance of ijmā‘. Concerning al-Naz.z.ām, he believes in the occurrence of ijmā‘, but not as h.ujjah.95 This is because, seen from the view-point of personal 92

Ibid. Ibid., vol. 4, pp. 502-503. 94 The opponents who accept ijmā‘ are the majority of ‘ulamā’ among Sunnī Muslims. For their argument in refuting the opinion of Ibn H.azm and those who reject the occurrence of ijmā‘, see Muh.ibb Allāh ibn ‘Abd al-Shakūr al-Bihārī, Musallam al-Thubūt, comment. ‘Abd al-‘Alī ibn Niz.ām al-Dīn al-Ans.ārī as Fawātih. Rah.mūt in the lower part of al-Ghazālī, al-Mustas.fá, 1st ed. (Cairo: al-Maktabah alTijārīyah al-Kubrá, 1356/1937), vol. 2, pp. 211-212. (Hereafter referred to as Musallam); Muh.ammad ibn ‘Alī al-Shawkānī, Irshād al-Fuh.ūl (Cairo: Mat.ba‘at Mus.t.afá al-Bābī al-H.alabī, 1356/1937), 1st ed., pp. 72-73. (Hereafter referred to as Irshād) 95 Bihārī, Musallam, vol. 2, p. 211. Ibn al-Humām (d. 861/1457) asserts that alNaz.z.ām rejects the possibility of the occurrence of ijmā‘, see Kamāl al-Dīn ibn alHumām, al-Tah.rīr fī Us.ūl al-Fiqh (Cairo: Mat.ba‘at Mus.t.afá al-Bābī al-H.alabī, 1351 A.H.), p. 399. (Hereafter referred to as Tah.rīr). But al-Subkī (d. 771/1369-1370) asserts that this is only the view of some of the followers of al-Naz.z.ām, for he himself believes in the occurrence of ijmā‘, see ‘Alī ‘Abd al-Rāziq, al- Ijmā‘ fī al93

opinion ) (, he believes in the possibility of ijmā‘ of the ummah in error. He asserts that this ijmā‘ in error may occur in any period of time. 96 Similar to the view of al-Naz.z.ām, al-T.ūsī asserts the possibility of the occurrence of ijmā‘, but not as h.ujjah, unless the opinion of the infallible imām is included in the ijmā‘. Like al-Naz.z.ām, he also believes in the possibility of the occurrence of ijmā‘ in error. His argument is that it is possible that the Muslim community could fall into a shubhah (judicial error) whenever they believe what is not dalīl as such, and base their ijmā‘ on it. This happened to their communities. For the example of the communities who fall into a shubhah as given by al-T.ūsī, is that Jews, Christians, and other non-Muslim communities agree on the nullity of Islam and the falsehood of Prophet Muhammad, in spite of their greatness in number.97 The h.adīth dealing with Allah’s protecting the Muslim community from error and that His hand is upon them are, in al-T.ūsī’s view, undependable, ) ( because they are akhbār āh.ād (sing. khabar wāh.id, h.adīthsreported by one chain of authority) which do not necessitate knowing it ) ( .98 Ah.mad ibn H. anbal (d. 241/855), the founder of the H. anbalī school of law which is close to the Z.āhirī, maintains in one report from him, that what is claimed to be ijmā‘ is a lie, and he who claims it is a liar, because people may disagree, and this disagreement has not reached us. This view is similar to that of Ibn H. azm in rejecting the occurrence of ijmā‘ other than that of the s.ah.ābah. However, in another report from Ah.mad ibn H. anbal, he accepted the ijmā‘ of the majority, which is contrary to Ibn Sharī‘ah al-Islāmiyyah (Cairo: Dār al-Fikr al-‘Arabī, n.d.), p. 10. (Hereafter, referred to as Ijmā‘). 96 ‘Abd al-Qāhir ibn T.āhir al-Baghdādī mentions the view of al-Naz.z.ām in the possibility of the occurrence of ijmā‘ in error as his 17th scandal, see al-Farq, p. 143. 97 For further details, see al-T.ūsī, ‘Uddat al-Us.ūl, vol. 2, pp. 65 ff. For the Shī‘ah, the majority of Muslims had gone away from the true path since the death of the Prophet, when they appointed and obeyed wrong rulers and deprived the rightful ones, the descendants of the Prophet, of their right. This also indicates, according to the Shī‘ah point of view, the fallibility of the Muslim ummah, except the Shī‘ah community. 98 bid., pp. 74-75; cf. below, pp. 72-74

H. azm’s view. These two views as reported from Ah.mad ibn H. anbal have been reconciled by the new H. anbalī scholar, Mukhtār al-Qād.ī, when he asserts that Ah.mad ibn H. anbal does not make total agreement a condition of ijmā‘, because ordinarily it could not occur, while ijmā‘ of the majority without challenge from the minority could happen. 99 We have seen in this section that the Z.āhirī Ibn H. azm, the Mu‘tazilī al-Naz.z.ām, and the Shī‘ī al-T.ūsī, hold similar yet different views on ijmā‘. Ibn H. azm maintains only total ijmā‘ which occurred exclusively during the time of the s.ah.ābah, and the necessity of basing ijmā‘ on nas.s.. Al-Naz.z.ām emphasizes the authority of the statement in ijmā‘, while alT.ūsī insists upon the embodiment of the opinion of the infallible imām in ijmā‘. All three scholars share the same position in considering ijmā‘ based on ijtihād as fallible. Ibn H. azm and al-Naz.z.ām maintain that since ijtihād is fallible, ijmā‘ based on it must also be fallible. Al-T.ūsī contends that Muslims could fall into shubhah which leads them to ijmā‘ in error, while h.adīths asserting the infallibility of the Muslim community are āh.ād which do not necessitate knowing them. Al-T.ūsī and al-Naz.z.ām hold the same view in considering the statement of the infallible imām as h.ujjah, while Ibn H. azm accepts exclusively only the Qur’ān and the H.adīth as h.ujjah. However, all these scholars share the same view in rejecting qiyās.

Dr. Mukhtār al-Qād.ī, al-Ra’y, pp. 173-174.

CHAPTER II JUDICIAL BACKGROUND A. Ibn H. azm’s View of the Basis of Ijmā‘ Before looking into Ibn H. azm’s view of the basis of ijmā‘ ( ) it is necessary to mention that ijmā‘ came directly from individual authorities, and was not a controversial issue, until the emergence of rival schools of theology and law, when the ‘ulamā’’s assessment of the concept of ijmā‘ began to be influenced by the stand taken in accordance with the schools they adhered to. Until then, ijmā‘ had been a legal process devised to solve disputed problems caused by the death of the Prophet, who was the ultimate authority on these problems. In this context the aim of ijmā‘ was to reach a decision based on the opinion of the community presented by its leaders, who were not divided by legal and theological differences. While ijmā‘ during the rule of the Prophet was not a necessary legal process, because he had the final answer to any problem, his death raised the issue, and the Prophet’s s.ah.ābah, tried to solve it by seeking solutions in the Qur’ān and in the Sunnah, even though some of the problems to which a solution was sought became further complicated by the nature of the new emerging fiqh schools. In addition, once a decision was reached by the authority on a certain problem, this decision did not became an ijmā‘ unless it was approved of by the community. Otherwise, the decision stayed at the stage of ijtihād, and the person exercising it was called a mujtahid (pl. mujtahidī n). As will be seen, Ibn H. azm declines to accept this kind of ijmā‘, because it is the product of ijtihād which he views as a concept fallible by nature, whereas the genuine ijmā‘, Ibn H. azm contends, is infallible.100 This is also the opinion of al-Naz.z.ām who argues that if ijmā‘ is based on positive evidence ) (, i.e., the Qur’ān and the Sunnah, it would be the 100

h.ujjah by itself; but if ijmā‘ is based on probable evidence ) (, i.e., reasoning, the ijmā‘ would not occur due to the difference of men’s nature. Dr. S.ubh.ī al-

Because of this stand taken by Ibn H. azm, we need to introduce the Qur’ān and the Sunnah as sources for the study of ijmā‘. The Qur’ān for Ibn H. azm is important not only because its texts provide proofs as to the validity of ijmā‘ ) (, but also because it provides evidence to refute ijmā‘ based on other than nas.s., save for the ijmā‘ which he propagates (i.e., ijmā‘ based on nas.s.), whereas his opponents use the Qur’ānic texts as evidence to justify the validity of ijmā‘ upon which they reached a decision. The verses which Ibn H. azm uses to demonstrate his theme of the basis of ijmā‘ are numerous, and are preserved in his works entitled al-Ih.kām and al-Muh.allá. Suffice it to cite a few examples so that we may compare Ibn H. azm’s stand with that of his opponents, e.g.,

“And whoso opposeth the messenger after the guidance (of Allah) hath been manifested unto him, and followeth other than the believers’ way, We appoint for him that unto which he himself hath turned, and expose him unto hell—a hapless journey’s end.” (Qur’ān, 4:115).

One interpretation of this verse is offered by al-Ghazālī (d. 505/1111) from the Shāfi‘ī school. According to him the verse contains Allah’s threat against those who follow a path other than that of the believers, and this in turn shows its unlawfulness, because the action is combined with another thing, i.e., opposing the Prophet, which requires a punishment for the individual involved. He considered this verse to be the strongest one in the Qur’ān to prove the validity of ijmā‘, for the ijmā‘ of the Muslim community is the path of the believers. But he and

S.ālih., al-Nuz.um al-Islāmiyyah: Nash’atuhā wa Tat.awwuruhā, 1st ed. (Beirut: Dār al-‘Ilm lil-Malāyīn, 1385/1965), p. 236.

Ibn al-H.ājib (d. 646/1248) from the Mālikī school believed that this verse was not a decisive textual proof and a positive evidence.101 Ibn H. azm’s view of this verse is quite different. He says that the verse indicates that Allah did not give His promise (threat) to the follower of other than the believers’ way, except for his opposition against the Messenger of Allah, and this came after the guidance had been manifested unto him. In addition, there was no other way at all for the believers except to obey the Qur’ān and the Sunnah of the Prophet, while creating laws (i.e., ijmā‘) without giving nas.s. was the way of infidelity. 102 Another verse cited by the advocates of ijmā‘ to justify its validity, but interpreted by Ibn H. azm as ijmā‘ based on nas.s., is as follows:

“O ye who believe! Obey Allah, and obey the messenger and those who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last Day.” (Qur’ān, 4:59).

101

Al-Ghazālī, al-Mustas.fá, vol. 1, p. 175. Al- T.abarī did not apply this verse to support ijmā‘. George F. Hourani, “The Basis of Authority of Consensus in Sunnite Islam,” Studia Islamica xxi (1964), p. 26, quoting al- T. abarī, Tafsīr al- T. abarī, e d. M. Shākir (Cairo: Ma‘ārif Press, n.d.), vol. 7, pp. 204-205. (Hereafter refereed to as “Basis of Authority”). The debate between the defenders and the opposers of ijmā‘ about the verse in question can be traced in the books of Islamic jurisprudence, e.g., Abū ’l- H. usayn al-Bas.rī (d. 436/1044), Kitāb al-Mu‘tamad fī Us.ūl al-Fiqh, ed. Muh.ammad H.amīd Allāh et al. 1st ed. (Damascus: al-Ma‘had al‘Ilmī al-Faransī lil-Dirāsāt al-‘Arabīyah, 1385/1965), vol.2, pp. 462-469; (hereafter referred to as Mu‘tamad); Sayf al-Dīn al-Āmidī, Ih.kām al-Āmidī, vol. 1, pp. 286-298; al-Shawkānī, Irshād, pp. 74-77. 102

Ibn H.azm, Ih.kām, vol. 4, p. 497.

Once more al-Ghazālī saw the verse as evidence to indicate that the unanimity of the community is right. 103 But according to Ibn H. azm this verse also proves that ijmā‘ should be based on nas.s.. The community in the verse should obey ūlī al-amr (those who are in authority) if they based their injunction on nas.s. from the Qur’ān and the Sunnah, like praying and paying zakāh.104 Al-Bas.rī, a Mu‘tazilī jurist who is also a contemporary of Ibn H. azm, gives us a different interpretation of this verse. According to him, this verse urges the believers to obey ūlī alamr, i.e., the umarā’ (emirs). But if they see that the ūlī al-amr are mistaken in their consideration upon any matter of religion or worldly matter, they should dispute with them and refer the matter to Allah and His Messenger. The case is similar to when someone says to his servants: “Obey the person I have entrusted you with, and when you have any dispute refer it to me.”105 Moreover, Ibn H. azm contends, following the ūlī al-amr, if it were accepted as ijmā‘, there are two possibilities: either a) there is disagreement among them, and in this case the opinion of some of them is not more entitled to be accepted than that of others, or b) there is no disagreement among them; in this case Ibn H. azm rejected the assertion of ijmā‘ without any basis from nas.s..106 Ibn Taymīyah (d. 728/1328) who shares Ibn H. azm’s view in ijmā‘ gives his commentary upon this verse. He says that whatever the Muslims agreed upon must have been traced back through divine text ) ( from the Prophet so that disagreeing with it would mean disagreeing with the Prophet, as disagreeing with him would mean disagreeing with Allah.107 If we go back to the sabab al-nuzūl (the 103

Al-Ghazālī, al-Mustas.fá, vol. 1, pp. 174-175. Ibn H.azm, Ih.kām, vol. 4, p. 498. 105 Mu‘tamad, vol. 2, p. 471. 106 This is one of many ways of Ibn H.azm in arguing with his adversaries. He gives them two alternatives in order to bring them to a deadlock and then to overcome them. Ih.kām, vol. 6, p. 772. 107 Ibn Taymiyyah, Ma‘ārij al-Wus.ūl (Cairo: Dār al-Zaynī lil-T.ibā‘ah wa ’lNashr, n.d.), pp. 38-39. (Hereafter referred to as Ma‘ārij). 104

occasion on which the verse was revealed) of this verse, the believers’ way means īmān, while other than theirs is kufr (infidelity), as the verse was revealed on T.u‘mah ibn Ubayriq who had stolen a coat of mail and joined the idolaters.108 Who are the ūlī al-amr? According to Ibn H. azm, they are the umarā’ (sing. amīr, emirs, rulers) as reported from Abū Hurayrah, the fuqahā’ as reported from Mujāhid, al-H. asan and ‘Ikrimah, and the ‘ulamā’ who are the authorities among Muslims. They are obeyed because of what Allah and the Prophet enjoined. It is also important to mention here that Ibn H. azm bases his view on the fact that there is no explanation in the Qur’ān as to who are the ūlī al-amr cited in the two verses involved;109 therefore, according to Ibn H. azm, the ostensible meaning of the verse ) ( should be accepted by the Muslims, i.e., that the ūlī al-amr are the rulers and the ‘ulamā’. However, Ibn H. azm argues further that since the Qur’ān does not say that they are the agreeing ‘ulamā’ their agreement is not ijmā‘.110 According to Ah.mad Shākir, if we go back to the sabab al-nuzūl of the verse in question the ūlī al-amr are those whom the Muslims give authority for their affairs, i.e., the rulers and judges. Obedience to them is obligatory between Allah and the Muslims themselves of what they command, as long as no nas.s. is available, and as long as they (ūlī alamr) do not order anyone to violate the nas.s.. The reason is that the verse mentioned above was revealed in the case of ‘Abd Allāh ibn H. udhāfah when he was appointed a chief by the Prophet in a sirrīyah (a detachment). He was angry with his soldiers in a certain matter and said: “Has not the Prophet ordered you to obey me?” they answered: “Yes, he has.” So, he ordered them to collect wood and make a fire and then 108

See ‘Alī ‘Abd al-Rāziq, al-Ijmā‘ fī ’l-Sharī‘ah al-Islāmiyyah (Cairo: Dār al-Fikr al-‘Arabī, n.d.), p. 27. 109 The second verse meant by Ibn H.azm is: “…. Whereas if they had referred it to the messenger and such of them as are in authority, those among them who are able to think out the matter would have known it.” (Qur’ān, 4:83). 110 Ibn H.azm, Ih.kām, vol. 4, pp. 497-498.

ordered them to enter into it. One of them argued and told them to ask the opinion of the Prophet. The Prophet said: “If you entered the fire you would never come out of it. Obedience is only to the right thing ( ) ”111. Another report said that the verse was revealed on the occasion of a dispute between Khālid ibn al-Walīd and ‘Ammār ibn Yāsir. Khālid at that time was appointed by the Prophet as the leader of an expedition somewhere outside Madīnah.112 Ibn H. azm does not cite the argument of his opponents whom he does not mention by name. However, he contends that his opponents’ stand is invalid if they mean that, should ūlī al-amr be followed exclusively on what they receive from the Prophet, then Allah would mention al-rasūl (the messenger) only without mentioning ūlī al-amr. To this, Ibn H. azm replies that if it is so, his opponents should also say that if the Prophet should be followed only on what he received from Allah, He would mention allāh (Allah) alone, without mentioning alrasūl in the verse mentioned above.113 In this way the opponents are faced with two alternatives because of the foregoing argument: 1) if they reject the above statement, then they contradict themselves; 2) if they agree to it, then Ibn H. azm will accuse them of believing in the possibility of the Prophet bringing laws which Allah has not revealed to him. Ibn H. azm mentions the verses in which Allah confirms that the Prophet says exclusively what has been revealed to him, namely, “I follow only what was revealed to me” (Qur’ān 6:50)114 and those in which Allah informs us that the Prophet does not speak of his own desires, such as, 111

Ibid., vol. 4, p. 500, n. 1 Ahmad Hasan,“The Political Role of Ijmā‘,” Islamic Studies 8 (June, 1969), p. 143 (hereafter referred to as “Political Role”), quoting al-T.abarī, Jāmi‘ al-Bayān ‘an Ta’wīl Āy al-Qur’ a-n, ed. Shākir (Cairo: n.p., n.d.), vol. 7, pp. 345346. With regard to ūlī al-amr many commentators of the Qur’ān said that they are: leaders, commanders of the expeditions, scholars and jurists, the s.ah.ābah, Abū Bakr, ‘Umar, and the sult.ān, see A. Hasan, “Political Role,” p. 143. 113 Ibn H.azm, Ih.kām, vol. 4, p. 498 114 For verses of similar meaning, see Qur’ān 10:16, 46:9, 7:203, 10:109, and 33:2. 112

“Nor doth he speak of (his own) desire, it is naught save an inspiration that is inspired” (Qur’ān 53:3-4) as evidence to justify his opinion.115 One proof which Ibn H. azm utilizes to refute the view of his opponents is the occurrence of the reference to al-rasūl and ūlī al-amr, two terms of great importance in understanding Ibn H. azm’s argument. First of all, Ibn H. azm contends that the significance of mentioning alrasūl and ūlī al-amr in the verse mentioned above is that if Allah commanded us to obey Himself alone, some people would think that the only obligation was what had been said by Allah in the Qur’ān, whereas what was said by the prophet without nas.s. from the Qur’ān would not be obligatory. Then the injunction to obey the Prophet removes this misunderstanding. Ibn H. azm argues further that if Allah commanded us to obey the Prophet—after obeying Allah without mentioning ūlī al-amr —some people would think that it would not be necessary to obey the Prophet except what we heard directly from himself. But as Allah commands us to obey the ūlī al-amr, the necessity to obey what the ‘ulamā’ brought to us from the Prophet becomes clear.116 But this, as mentioned by Ibn H. azm himself, is rejected by his opponents who are not identified. Still, according to him, they argue that if it is were so, what Allah says: “and if ye have a dispute concerning any matter, refer it to Allah and the messenger” would not have any meaning, as we should accept what is from Allah and the Prophet, no matter whether it is agreed or disagreed. His opponents, in his view, would fail to single out the difference between Allah’s command to obey ūlī al-amr and His command to refer to Allah and His Prophet in case of a dispute. Ibn H. azm counters this argument and says that there is no contradiction between the two commands, as both mean to obey Allah and the Prophet. Allah forbids us from following the authority of a particular scholar or school rather than the Qur’ān and the Sunnah directly.117 If we 115

Ibn H.azm, Ih.kām, vol. 4, pp. 498-499. Ibid., p. 499. 117 Ibid., and vol. 6, p. 808; for the example given by Ibn H.azm to support his view, see ibid., vol. 4, pp. 499-500. In fact, the verse above represents Ibn H.azm’s 116

scrutinized the construction of the words in the verse, the verb at.ī‘ū (obey) is mentioned before both words allāh and al-rasūl, and not before ūlī al-amr. This gives an indication that obeying Allah and His Messenger is without any condition, while obeying ūlī al-amr is on the condition that they order what is not contradictory to the order of Allah and His Messenger. There are many examples which provide us with the same stand taken by Ibn H. azm on the question of the Qur’ān as one of the bases of ijmā‘. In these two examples we have seen how Ibn H. azm gives us a different interpretation of the verses of the Qur’ān than that used by his opponents as component elements of their argument. In the first, he rejects ijmā‘ based on other than nas.s. and insists that the believers’ way is following Qur’ān and the Sunnah. In the second one, he uses the notion ūlī al-amr as the authority who transmits the sharī‘ah, and all in all, Ibn H. azm in this context does not accept an ijmā‘ other than in his own school, namely, the Z.āhirī. With regard to the Sunnah referred to by Ibn H. azm’s opponents to justify ijmā‘ based on other than nas.s., he mentions three h.adīths . One of them is as follows:

“There will remain a t.ā’ifah (a group) among my community who knows the truth and who will not be harmed by those who dessert them, until the decree of Allah comes to pass."118 (Reported by Muslim. Similar hadīths are also reported by al-Tirmidhī, Ibn Mājah, and Amad)

According to Ibn H. azm’s opponents this h.adīth indicates the justification of ijmā‘. On the contrary, Ibn H. azm contends that the view of the source of Islamic jurisprudence, i.e., the Qur’ān, the Sunnah, and ijmā‘ based on nas.s.. Ibid., vol. 1, p. 87. 118 Ibid., vol. 4, p. 497.

h.adīth indicates that the community of the Prophet will never agree in error, as there must always be among them those who will uphold the truth. Moreover, in Ibn H. azm’s view, this h.adīth also gives an indication of the existence of disagreement. 119 Ibn H. azm also stipulates that nas.s. as related to the Qur’ān and the Sunnah must be treated as the sanad of ijmā‘. This position Ibn H. azm shares with the Shī‘ī school and Ibn Jarīr al-T.abarī (d. 310/923). Yet it is contradictory to that of the majority of Sunnī jurists, who maintain the possibility of the occurrence of ijmā‘ based on ijtihād or qiyās, whenever nas.s. is not available. According to Qādī ‘Abd al-Jabbār ijmā‘ without sanad can occur. In his view, the ‘ulamā’ may agree upon the legal judgement of an issue and can be right in their judgement through the guidance of Allah to choose the right one. 120 In order to scrutinize this problem, we shall first deal with Ibn H. azm’s sanad of ijmā‘, i.e., the Qur’ān and the Sunnah, and compare it with the view of his opponents among the H. anafī, Mālikī, and Shāfi‘ī schools. Then we shall study Ibn H. azm’s refutation of qiyās, which is advocated by his opponents among the followers of the three above-mentioned schools as one of the bases of ijmā‘. Only then we can understand the nature of the issue and the Z.āhirī and non - Z.āhirī positions relating to it, and Ibn H. azm in particular. 1. The Qur’ān The Qur’ān as defined by Ibn H. azm, is “a revelation established in the Scripture ) ( ”121 also “revelation recited and arranged in such a way to account for its miraculous structure

(

) ”.122 The text contains divine laws intended to serve the human race (chiefly the Muslim community), but not all of the verses in the Qur’ān are fully explained in detail. Some of them are of the mujmal type, that is largely summarized and undefined rules. Mujmal in Ibn 119

Ibid. ‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 101. 121 Ibn H.azm, Ih.kām, vol. 4, p. 503. 122 Ibid., vol. 1, p. 87. 120

azm's definition “is a word which needs explanation taken from another one.”123 As an illustration, Ibn H. azm notes the injunction to Muslims to pray and to pay zakāh. Ibn H. azm contends that these acts require explanation as to how and when the Muslims should perform them.124 But the required explanation is available in the Sunnah.125 This position of Ibn H. azm, that the Qur’ān is one of the bases of ijmā‘ is undisputed among the jurists. The disagreement lies in the matter of the clearness or ambiguity of the verses of the Qur’ān. According to Ibn H. azm the verses of the Qur’ān are clear, except for some ambiguous ones. But Ibn H. azm contends that what are considered mutashābihāt126 by the Sunnīs and the Mu’azilīs have been explained either by the Qur’ān or by the Sunnah, except letters at the beginning of some sūrahs in the Qur’ān, like ‫( الم‬alif, lām mīm) at the beginning of sūrat alBaqarah (chapter 2), and Allah’s oaths in the Qur’ān, like “By the morning hours, and by the night when it is stillest” at the beginning of sūrat al-D.uh.á (chapter 93:1-2).127 According 123

Ibn H.azm gives the definition of mujmal as follows: (“It is a word which needs explanation taken from another one.”) Ibid., p.

39. 124

Another example is the act of performing the h.ajj (pilgrimage). Ibid., p.

110. 125

Ibid., p. 93. Both Ash‘arīs and Mu‘tazilīs say that the mutashābihāt are explained by muh.kamāt. Each of these theological schools argue that the verses which agree with their school are muh.kamāt, while those which agree with the school of their opponents are mutashābihāt. For example, the verse: 126

“Then whosoever will, let him believe, and whosoever will, let him disbelieve.” (Qur’ān, 18:29) and “Yet, ye will not, unless Allah willeth.” (Qur’ān 76:30 and 81:29). According to the Ash‘arīs, the first verse is mutashābihah (ambiguous), while the second one is muh.kamah (clear). The Mu‘tazilīs have the opposite view. 127 Ibid., p. 44. According to Abū Bakr al-Sarakhsī, this opinion of Ibn H.azm is also the opinion of the experts on Qur’ānic exegesis ) ( . See al-Sarakhsī, Us.ūl al-Sarakhsī, ed. Abū ’l-Wafā’ al-Afghānī (N.p.: Mat.ābi‘ Dār al-Kuttāb al‘Arabī, 1372 A.H.), vol. 1, p. 16.

to Ibn H. azm, seeking and following the ta’wīl of what he calls mutashābihāt is forbidden.128 Ibn H.azm make a distinction between mutashābihāt in the Qur’ān and that in laws. In Ibn H. azm’s view, seeking the ta’wīl of the mutashābihāt in the Qur’ān (i.e., Allah’s oath and letters at the beginning of some sūrahs) is forbidden. With regard to the mutashābihāt in laws, namely, those which are between obviously prohibited ) ( and obviously permitted ( (, seeking their interpretations is enjoined upon Muslims in order to understand their religion.129 The explanation )

( of the mujmal verses in the Qur’ān is either:

commentary) (, exception ) (, or specification ) (.130 The examples mentioned by Ibn H. azm, where the mujmal verses in the Qur’ān are explained by other ones, are those dealing with divorce. These verses are clarified by verses in sūrat al-T.alāq (chapter 65).131 With regard to the Qur’ānic verses which are explained by the Sunnah, Ibn H. azm mentioned many examples. One of them is the injunction to pay zakāh. The Qur’ān does mention it several times, but it does not give us any specification or detail. It is the Prophet who teaches us in detail how to pay it, what kinds of property are liable to it, and many questions dealing with it.132 In spite of all these explanations the level of the ‘ulamā’’s insight in understanding them differs and depends upon their ability to grasp them and upon the guidance of Allah. A verse might not be clear to one 128

Ibn H.azm, Ih.kām, vol. 1, p. 44 Ibid., vol. 4, pp. 490 ff. 130 Ibid., vol. 1, p. 71. 131 Ibid., p. 73. For other examples, see ibid., pp. 72-73, vol. 4, p. 491. Ibn H.azm does not give us the verses in question, but through our investigation their location is in sūrat al-Baqarah (chapter 2):226 & ff passim. 132 Ibn H.azm, Ih.kām, vol. 1, p. 72. Again Ibn H.azm does not give us any verse from the Qur’ān or h.adīth concerning zakāh. Zakāh, the third pillar of Islam, is often mentioned after s.alāh (prayer), the second pillar. Qur’ān, 2:43; 5:55; 9:18; 22:78; 24:56; and 27:3. 129

‘ālim while it is clear to others. Among the examples given by Ibn H. azm is the verse dealing with the kalālah (a deceased person who has neither parents not children to give his inheritance to), which is understood by the s.ah.ābah except ‘Umar.133 The verse runs as follows:

And if a man or a woman hath a distant heir (having left neither parent nor child), and he (or she) hath a brother or sister (only on the mother’s side), then each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent. (Qur’ān 4:12).

The Prophet reproaches him and tells him that to understand the meaning of kalālah it is sufficient to refer to the verse revealed in summer134 which is as follows:

They ask thee for a pronouncement. Say: Allah hath pronounced for you concerning distant kindred. If a man die childless and hath a sister, her is the half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of 133 134

Ibn H.azm, Ih.kām, vol. 1, p. 78. Ibid., p. 79.

the share of two females. Allah expounded unto you, so that ye err not. Allah is Knower of all things. (Qur’ān 4:17 ).

2. Sunnah Ibn H. azm’s view of the Sunnah complements his view of the Qur’ān, although his assessment of the Qur’ān underlines some parallels with the Sunnah. Like the Qur’ān, the Sunnah is a revelation, because Ibn H. azm contends that the explanations of the Prophet have a value equal to that of the Qur’ān on the bases of the evidence contained in the verse: “Say (O Muhammad), unto mankind): I warn you only by the inspiration.” (Qur’ān 21:45) and because Allah provides us with the essential details relevant to the injunction which Allah gave to His servants. Ibn H. azm contends that Allah preserves the Sunnah, because it is revelation. Like the Qur’ān, Sunnah is also a dhikr (a reminder). Allah says: “Lo! We, even We, reveal the Reminder, and lo! We verily are is Guardian.” (Qur’ān 15:9). 135 But unlike the Qur’ān, the Sunnah from which the religious laws appear is revelation not established in the Scripture ) ( ,136 because its essence represents basically reports and transmitted prophetic revelation. He defines the Sunnah as an uncomposed text containing no miracles in its structure. Whereas the Qur'ān depends on the notion of reciting its verses, the Sunnah lacks this attribute, and revolves around the notion of reading it.137 Ibn H. azm sticks to his stand on the two kinds of text as the sanad of ijmā‘. The division of the Sunnah based on the number of its chains of transmitters into khabar al-tawātur (mutawātir, a h.adīth handed down by many chains of unimpeachable transmitters) and khabar al-wāh.id (āh.ād, a h.adīth reported by one chain of transmitters) also has 135

See Ibn H.azm, Ih.kām, vol. 1, pp. 87-88. bn H.azm, Ih.kām, vol. 4, p. 505. 137 bn H.azm also defines the Sunnah as 136

("revelation reported, transmitted with no arranged and miraculous structure, and not recited but read"). Ibid., vol. 1, p. 87.

a bearing on Ibn H. azm’s assessment of the sanad of ijmā‘. While there is no dispute on the acceptance of khabar al-tawātur as a reliable h.adīth among the ‘ulamā’, the status of khabar al-wāh.id is disputable. While the Mu’tazilīs are sceptical of it on the one hand, Ibn H. azm, as a Z.āhirī, accepts it totally. The Ash‘arī-Sunnīs stand in the middle. They accept it as a h.ujjah z.annīyah (probable evidence). In order to clarify Ibn H. azm’s position on these two kinds of h.adīths and their relation to the sanad of ijmā‘, we shall deal with them in some details. One. Khabar al-Tawātur Ibn H. azm defines khabar al-tawātur as a report continuously transmitted by the masses from one generation to another which traces its origin from the prophet ) (. It is a h.adīth related by a consecutive testimonies, so that there is no room for doubt, and no Muslim disagrees as to its acceptance; for example, the report that the Qur’ān was revealed to the Prophet, and that there are five daily prayers enjoined upon Muslims.138 One problem relating to the credibility of this kind of h.adīth is the exact number of its chains of transmitters. Ibn H. azm says that Muslims differ in evaluating khabar al-tawātur and the exact number of chains of transmitters relating to it. While some jurists whom Ibn H. azm does not specify say that khabar al-tawātur must be transmitted by numerous people from the East and West, others say that the number of transmitters must be uncountable; this is because it is so well-known. Some say that they must not be less than three hundred or so, as is the case in the example of the number of Muslims who fought at the battle of Badr. Some jurists say that their number must not be less than seventy, sixty, forty, twenty, twelve, five, four, three, and even two transmitters. 139 But this opinion as applied to a limited number of transmitters is rejected by Ibn H. azm, because the Qur’ān does not limit the number of transmitters for the acceptance of a h.adīth. Ibn H. azm also contends that 138 139

Ibid., pp. 93-94. Ibid. See also ‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 14, n. 2.

it is not reasonable to make a distinction between a h.adīth reported by seventy people and that by sixty-nine, so to speak.140 What Ibn H. azm is concerned about is not the gross number of transmitters. Rather, it is the transmitters’ action in persisting in forging a h.adīth ( which designates it as khabar al-tawātur. Here al-Sarakhsī (490/1056) from the H. anafī school shares the view of Ibn H. azm in his rejection of any limitation to the number of transmitters in khabar al-tawātur.141 Ibn H. azm thinks that it is highly important to investigate and to verify the credibility of the transmitters as the primary concern of an ‘ālim, regardless of the number of transmitters. In addition, a person or a group of people could agree in telling a lie if they had gathered together to fabricate ah.adīth if there were any motive behind the act of lying; for example, when the people involved were offered worldly matters ) ( or frightened ) (. Ibn H. azm excludes prophets from the occurrence of such cases. In addition, he thinks that such contemptible means are detectable through the use of (essential grasping of something 142 by means of sense power). However, Ibn H. azm points out that a report given by two or more reliable transmitters can be accepted as khabar al-tawātur on condition that theh.adīth had to be thoroughly verified by means of the foregoing investigation. In fact, we should make sure that the persons relating to the chain of transmitters (say two or three) have never met before, and the absence of any indication regarding deception and lying. In addition to that, the transmitters must give their report in different places with long narration, so that no other people can produce any statement similar to it. Ibn H. azm goes on to add that the transmitters must have received the report in the same way they did, as a prevention against the possibility of their receiving false h.adīth. Such reports, in a similar way as above, happen in our daily lives. To illustrate this, Ibn H. azm cites several examples, such as the report of somebody’s death, birth, 140

For further details, see Ibn H.azm, Ih.kām, vol. 1, p. 95. Ibid. Al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 294. 142 Ibn H.azm, Ih.kām, vol. 1, p. 96. 141

marriage, and many others. In all these examples, the number of transmitters involved is two or more.143 Two. Khabar al-Wāh.id Ibn H. azm defines khabar al-wāh.id as a h.adīth reported primarily by one transmitter, who traces his hearing of the h.adīth to the Prophet himself. But to accept the authority of this kind of h.adīth, Ibn H. azm contends that the transmitters must be reliable informants (transmitters). Once this stipulation is fulfilled, then the h.adīth, Ibn H. azm contends, is a sound and acceptable one. The Muslims should act according to its content and should know its soundness with certainty ( ) . According to Ibn H. azm, this is also the opinion of Dāwūd (Abū Sulaymān) ibn Khalaf (d. 270/884), the founder of the Z.āhirī school,144 and according to Ibn al-Qayyim al-Jawziyyah (d. 751/1350), a H. anbalī jurist, this is also the opinion of al-Qād.ī Abū Ya‘lá (d. 458/1065), the H. anafī school, Mālik ibn Anas, al-Shāfi‘ī, and many others.145 Contrary to the opinion of Ibn H. azm, al-Bāqillānī (d. 403/1013) reports that khabar al-wāh.id according to the fuqahā’ and mutakallimīn (Muslim theologians) is any h.adīth which lacks the necessity of knowing it with certainty, though it is reported by more than one transmitter. Yet, the content is valid and should be acted upon if the transmitter is reliable and if the h.adīth itself is not contradictory to any stronger one.146 143

Ibid., pp. 96-97. Ibid., p. 97. 145 See Ibn Qayyim al-Jawzīyah, al-S.awā‘iq al Mursalah ‘alá ’l-Jahmīyah wa ’l-Mu‘at.t.ilah, summar. Muh.ammad ibn al-Maws.ilī and rev. Zakarīyā ‘Alī Yūsuf (Egypt: Mat.ba‘at al-Imām, n.d.), pp. 474-475. (Hereafter referred to as S.awā‘iq). 146 Muh.ammad ibn al-T.ayyib al-Bāqillānī was an Ash‘arī-Sunnī jurist and one of the early contemporaries and opponents of Ibn H.azm. He does not specify the fuqahā ’ and mutakallimīn who uphold this view. See al-Bāqillānī, al-Tamhīd f -i ’l-Radd ‘ala- ’l-Mulh.idah wa ’l-Rāfid.ah wa ’l-Khawārij wa ’l-Mu‘tazilah, ed. & comment. Mah.mūd Muh.ammad al-Khayd.arī and Muh.ammad ‘Abd al-Hādī Abū 144

Ibn H. azm reproaches those who maintain that the sound khabar alwāh.id does not necessitate knowing it with certainty, though they accept its content as valid. They are, in Ibn H. azm’s view, the H. anafīs, the Shāfi‘īs, and the Mālikīs en masse ) (, all Mu‘tazilīs and Khārijīs.147 They accept khabar al-wāh.id as h.ujjah z. annīyah, because its transmitter is not free from committing error, though he is reliable. As an example, al-Sarakhsī says that khabar al-wāh.id does not necessitate convincing knowledge ) (, because of the possibility of the narrator’s committing error. Nevertheless, its content is valid. The h.ukm contained in this type of h.adīth belongs to the category of wājib in H. anafī terms. It is different from fard. which necessitates both knowing and acting upon it. For example, the reading of sūrat al-Fātih.ah (Qur’ān, chapter 1) as mentioned in the khabar al-wāh.id is wājib in prayer, not fard..148 Ibn H. azm contends that it is impossible for the laws of the religion to be lost through the passing of time, so that the h.arā’im (prohibited) and the fard. (command) will not be known with certainty and that Islamic laws will become mixed up with invented ones. 149 He does not accept al-z.ann in religion, because al-z.ann is other than the truth (al-h.aqq), and is prohibited by Allah.150 Ibn H. azm’s argument regarding the reliability of the khabar alwāh.id is based on several Qur’ānic verses and h.adīths, and though he alludes to the view of his opponents, the nature of their argument is not fully stated. However, Ibn H. azm’s position is clear, namely that sound h.adīth reported by one transmitter is preserved by Allah, because it is part of revelation.151 His argument that khabar al-wāh.id is also Raydah (Cairo: Mat.ba‘at Lajnat al-Ta’līf wa ’l-Tarjamah wa ’l-Nashr, 1366/1947), p. 164. (Hereafter referred to as al-Tamhīd). 147 Ibn H.azm, Ih.kām, vol. 1, p. 107. 148 For further details, see Us.ūl al-Sarakhsī, vol. 1, pp. 111-113. 149 Ibn H.azm, Ih.kām, vol. 1, p. 110. 150 Ibn H.azm mentions many Qur’ānic verses as evidence, see ibid., vol. 4, p. 531. For Ibn H.azm’s argument in rejecting al-z.ann, see ibid., vol. 1, pp. 110 ff. 151 Ibid., p. 109.

revelation and is preserved by Allah is that there are many mujmal verses in the Qur’ān which need the Prophet’s explanation, like: s.alāh, zakāh, and h.ajj. If these explanations, i.e., the Sunnah (mutawātir as well as khabar al-wāh.id) were not preserved by Allah, the nas.s. as well as most of the laws incumbent on Muslims would be nullified. 152 Ibn H. azm’s first proof for the reliability of khabar al-wāh.id is the following verse of the Qur’ān:

“…. A band from each community should stay behind to instruct themselves in religion and admonish their men when they return, so that they may take heed.” (Qur’ān 9:122).

According to Ibn H. azm, the word t.ā’ifah (a group, a band, a party) in Arabic applies to one as well as more than one persons, which is also the opinion of al-Sarakhsī. Al-Sarakhsī mentions four different opinions concerning the meaning of t.ā’ifah. They are the opinions of Muh.ammad ibn Ka‘b, ‘At.ā’ (d. d. 115/733), al-Zuhrī (d. 124/742), and al-H. asan (d. 204/820) who said that t.ā’ifah means one, two, three, and ten persons respectively.153 Therefore, Ibn H. azm maintains that the verse above indicates that the warning of those who stay behind, even if it is only one person, should be accepted.154 Al-T.ūsī155 gives us a different view on the verse in question. He maintains that the verse does not indicate that the Muslims should accept 152

Ibid., p. 110. See also idem, al-Fas.l, vol. 5, p. 114. Us.ūl al-Sarakhsī, vol. 1, p. 323. 154 Ibn H.azm, Ih.kām, vol. 1, pp. 98, 100-101. 155 Abū Ja‘far Muh.ammad al-T.ūsī was the shaykh (leader, master) of the Shī‘ah Imāmiyyah sect, and was one of Ibn H. azm’s contemporaries. The Imāmiyyah believed in the succession of ‘Alī, instead of Abū Bakr, with clear nas.s.. For further details, see al-Shahrastānī, Milal, vol. 1, pp. 218-224. According to ‘Abd al-Qāhir ibn T.āhir al-Baghdādī (d. 349/1037) there are fifteen sub153

the warners’ warning. Instead, it simply enjoined a group of people to give warning. hose who are warned should investigate the truthfulness of the warners through rational evidence ) (. The case is the same with the injunction to the Prophet to give warning to people. His warning is not to be accepted by them unless they have strong evidence of his truthfulness ) ( . According to al-T.ūsī, the khabar al-wāh.id which necessitates knowledge ) ( among the Shī‘ah Imāmīyah is the one reported by a reliable reporter and originates from the Prophet or from one of the ima-ms. He believes that the khabar al-wāh.id does not have any valid value unless it becomes convincedly known. As khabar al-wāh.id, in his view, does not necessitate knowing it authoritatively—except the one reported by a person from the above sect—it follows that it does not have any valid value. 156 The second proof is based on the Sunnah, namely, the incident relating to the messengers whom the Prophet sent to neighbouring rulers and kings. The Sunnah shows that he sent one envoy to every ruler, whether Christian or Arab.157 Attention should be focused on the dispatching of a single messenger to each corresponding king. To Ibn H. azm it also indicates that a single reliable report should be accepted. 158 The third proof which Ibn H. azm employs to assert the necessity of accepting khabar al-wāh.id is the story of Moses as mentioned in the Qur’ān. When someone running from the other end of the city telling him that the chieftains were plotting to kill him (Moses), he believed him. The Qur’ānic verses run as follows:

divisions of the Imāmiyyah, among which are the Twelver Shī‘ah and the Ismā‘iliyyah. Farq, p. 23. 156 ‘Uddat al-Us.ūl, vol. 1, pp. 47 ff. 157 Ibn H.azm, Ih.kām, vol. 1, p. 98. Al-Shāfi‘ī called this kind of h.adīth khabar khās.s.ah (a special report), see Risālah, p. 369. 158 Ibn H.azm, Ih.kām, vol. 1, pp. 97-98; idem, Muh allá, vol. 1, p. 52.

“And there came a man, running from the further end of the city. He said: ‘O Moses! The chiefs are talking counsel together about thee, to slay thee. So get thee away, for I do give thee sincere advice’. He therefore got away therefrom, looking about, in a state of fear….” (Qur’ān 28:20-1).

Also when Moses arrived at Midian, one of the girls whose sheep had been watered by him told him that her father called him to receive a reward, and he believed her. The Qur’ānic verse runs as follows:

“Then there came to him one of the two women, waling shyly. She said: 'Verily, my father calls you that he may reward you for having watered (our flocks) for us'…” 159 (Qur’ān 28:25).

In all these examples, Ibn H. azm points out the necessity of accepting the report of a trustworthy person, especially the h.adīth which belongs to khabar al-wāh.id. It follows that this kind of h.adīth must be known as authoritative and be considered as valid. 160 What gives this kind of h.adīth an important status is the fact that Ibn H. azm considers it, as well as the khabar al-tawātur, as part of revelation. To sum up, Ibn H. azm’s stand in accepting the khabar al-wāh.id reported by a reliable person as positive evidence in Islamic law is one of his and the Z.āhirīs’ differences from other ‘‘ulamā’ of other schools and sects. This is because he rejects the occurrence of z.ann in religion.161 159

Ibn H.azm, Ih.kām, vol. 1, pp. 106, 123- 4. Ibn H.azm, Ih.kām, vol. 1, p. 107. 161 Ibn H.azm attacks the Mu‘tazilīs in their acceptance of the matter of beliefs exclusively through khabar al-tawātur. For further details, see ibid., pp. 119 ff. The Mu‘tazilī qād.ī Abū ’l-H.asan ‘Abd al-Jabbār maintains that matter of beliefs should not be accepted through khabar al-wāh.id. Sharh. al-Us.ūl al-Khamsah, ed. Dr. ‘Abd al-Karīm ‘Uthmān, comment. al-Imām Ah.mad ibn al-H.usayn ibn Abī 160

As for the khabar al-tawātur and the khabar al-wāh.id, Ibn H. azm accepts both kinds as the second source of Islamic law and as revelation, the first being the Qur’ān. As a Z.āhirī, who believes in the literal meaning of the nas.s., he believes that the Sunnah is the explanation of the Qur’ān, and he stresses that the loss of any h.adīth, either khabar al-tawātur or khabar al-wāh.id, would mean the loss of part of the nas.s.. This, in Ibn H. azm’s view, would mean the destruction of religion, which is contrary to Allah’s promise, whereas He has promised to make religion of Islam perfect and to guard the nas.s. from being lost. Though Ibn H. azm accepts khabar al-wāh.id as sanad of ijmā‘,162 beside the khabar al-tawātur, khabar al-wāh.id cannot be ma‘lūm bi ’l-d.arūrah except very rarely, when there is an indication of being so. Ibn H. azm gives many examples where a report from a single person becomes ma‘lūm bi ’l- d.arūrah. Among them are: the report of the death of a person who will be buried, and the report of a postman about the sultan’s letter which he is carrying.163 This view is identical to that of al-Naz.z.ām who maintains that if we are informed by someone about the death of a person whom we know is very ill, this information is ma‘lūm bi’l-arūrah.164 Having reviewed Ibn H. azm’s view of the Sunnah and its types based on transmission, we now mention his view on the types of Sunnah based on its essence. Our purpose in this will be to determine if all these kinds are capable of being considered to be sanad of ijmā‘ and we shall see how Ibn H. azm applies his Z.āhirī views to them. These types of Sunnah are as follows: One. Qawl (the statement) of the Prophet

Hāshim, 1st ed. (Cairo: Mat.ba‘at al-Istiqlāl al-Kubrá, 1384/1965), p.769. (Hereafter referred to as Sharh. al-Us.ūl). 162 Ibn H.azm, Ih.kām, vol. 4, p. 506. 163 Ibn H.azm, Fas.l, vol. 5, p. 118. 164 Qād.ī ‘Abd al-Jabbār, al-Mughnī, 20 vols (Cairo: Mat.ba‘at ‘Īsá al-Bābī alH.alabī, 1385/19650, vol 15, p. 393.

According to Ibn H. am a qawl of the Prophet is a h.ujjah which can serve as sanad of ijmā‘. This is the same view of the leading Sunnī jurists. His orders are incumbent upon Muslims, as long as there is no indication that they are outside the category of commandment, like alnadb (recommending).165 This is because he is ordered by Allah to explain what has been revealed to him, for example, the h.adīth dealing with zakāh, where he explains when and how it should be paid. Two. Fi‘l (the deed) of the Prophet Ibn H. azm, as well as the Z.āhirīs, says that the Prophet’s deed is not incumbent upon Muslims, but is recommended (mandūb). The deed of the Prophet is only a model (uswah) for the Muslims, except if it is accompanied with his qawl, or there is an indication of its being obligatory (wājib). This is also the view of the Shī‘ī jurist al-T.ūsī.166 In this case it becomes h.ujjah. Ibn H. azm explains this view by saying: We are only recommended to perform the deeds of the Prophet as a model, we do not leave it with the notion of disliking it, but [we leave it] as we leave all what is recommended to us in which if we do it we shall be rewarded. If we leave it, we shall neither be sinful nor rewarded, except the Prophet’s deeds which [serve] to explain an order (amr) or to execute a legal issue (h.ukm). In this case the deeds are obligatory (fard.), for they are preceded by the order. Therefore, they are explanation of the order. 167

For example, if a given deed is intended to execute a certain injunction, then it becomes wājib, as it is in the case of the Prophet’s prayer, for he says: “Pray the way you see me praying,” and the Prophet’s intention to burn the houses of those who failed to attend the congregational prayers.168 165

Ibn H.azm, Ih.kām, vol. 1, p. 138. Abū Zahrah, Ibn H. azm , pp. 298-300. ‘Uddat al-Us.ūl, vol. 2, pp. 3, 53 ff. 167 Ibn H.azm, Ih.kām, vol. 4, p. 422. 16 8For further examples, see Ibid., p. 431; see also idem, Muh.allá, vol. 1, p. 166

101.

The view of Ibn H. azm in considering the Prophet’s deed as uswah is the application of the literal meaning of the Qur’ānic verse:

“Verily in the messenger of Allah ye have a good example for him who looketh unto Allah and the Last Day, and remembereth Allah much.” (Qur’ān, 33:21).

Ibn H. azm says that the word lakum (for you, i.e., you have) in the above verse indicates permission to leave it, while if the Prophet’s deeds were an injunction to the Muslims, the verse would have said ‘alaykum (upon you). The text of the verse says . Ibn H. azm says further that if we say َ‫( هذَا لَمك‬this is for you), you may take it or leave it, while if we say (this is [incumbent] upon you) you must do it .169 Ibn H. azm supports this claim by a h.adīth mentioned by him, where the Prophet took off his sandals while he was leading a prayer, the s.ah.ābah who were praying behind him did the same. After the prayer the Prophet asked them why they had taken off their sandals. When they told him that they thought that taking off the sandals was an injunction during the prayer, the Prophet said that he took his sandals off because Gabriel came to him and told him that his sandals were dirty. This is an indication, Ibn H. azm contends, that the deeds of the Prophet are not enjoined upon the Muslims.170 Ibn H. azm argues further, that if the Prophet’s deeds were an injunction upon the Muslims, this injunction would be unbearable, as nobody could do the same as the Prophet did in everything; for example, Muslims would have to put their hands, walk, and see in the place, way and direction as the Prophet did respectively. 171

169

Ih.kām, vol. 1, p. 140. Ibn H.azm reproaches some Mālikīs who neglect many deeds of the Prophet which, in his view, indicate injunction. For details, see ibid., vol. 1, pp. 141-142. 170 Ibid., vol. 4, p. 430. 171 Ibid., p. 435.

This view of Ibn H. azm in considering the deeds of the Prophet as merely uswah is parallel to that of some Shāfi‘īs. However, it is contrary to that of some Mālikīs, who consider the Prophet’s deeds stronger than his orders ) (, while some Mālikīs and H.anafīs consider them like his orders ) (. Others among the Mālikīs and some Shāfi‘īs believe that these deeds depend on their dalīl which determines whether they are obligatory (wājib), recommended (mandūb), or permissible (mubāh.). Among the Shāfi‘īs who maintain this view are Abū Bakr al- S.ayrafī (d. 330/942) and Ibn Fūrak (d. 406/1015), and this is also the view of al-H. asan al-Karkhī (d. 340/952), which we think the right one.172 Three. Taqrīr (approval) of the Prophet While Ibn H. azm characterizes the deeds of the Prophet as actions having conditional value, and therefore, not always representative of sanad of ijmā‘, the Prophet’s taqrīr, like his qawl, has an overall value. Still, there is a difference between the two, in that Ibn H. azm considers the qawl as h.ujjah, while he denies taqrīr a similar status. In his view, taqrīr is no more than permitted act (mubāh.), but the act itself implies no h.ujjah at all. This view is contrary to that of the Sunnī ‘ulamā’ who contend that taqrīr is h.ujjah. By doing so, those ‘ulamā’ related h.ujjah to ijmā‘. Ibn H. azm opposes this view. His argument is that since the duty of the Prophet is tablīgh (conveyance of the message), he would never keep silent if he saw or knew of any munkar (reprehensible action).173 This means, in Ibn H. azm’s view, that anything which the Prophet does not disapprove of is permissible. The example given by Ibn H. azm is the Prophet’s listening to the singing of two slave girls in his house, and his displeasure with the disapproval of Abū Bakr.174

172

Ibid., p. 422; al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p.55. Ibn H.azm, Ih.kām, vol. 1, p. 139. 174 For more examples, see ibid., vol. 4, p. 436. According to Ah.mad Shākir the Prophet tolerated the singing because it was performed by two little girls only; see ibid., n. 1. 173

3. Qiyās Essentially, Ibn H. azm rejects the idea of qiyās on the ground that an act of this nature is false and prohibited.175 Yet, those who apply it in their exercising ijtihād are, in Ibn H. azm’s view, ma‘dhūr (excused) and ma’jūr (rewarded) as long as no h.ujjah has ever reached them.176 The proponents of qiyās are all of the Shāfi‘īs, groups among the H. anafīs and Mālikīs, as mentioned by Ibn H. azm.177 Prior to his conversion to the Z.āhirī school, Ibn H. azm, let us emphasize, was a member of the Shāfi‘ī school and studied Shāfi‘ī fiqh. In rejecting the H. anafī views of istih.sān al-Shāfi‘ī notes that istih.sān is outside the realm of the Qur’ān and the Sunnah, and does not have any legal authority. Ibn H. azm in turn uses al-Shāfi‘ī’s argument on the question of istih.sān to assert that the same is also true about qiyās, namely, like istih.sān, qiyās is bound to be out of the realm of the sharī‘ah.178 As we noted above, Ibn H. azm argues at length on this issue, because he regards qiyās as an innovation and which therefore needs to be strongly refuted. One of many examples given by Ibn H. azm in refuting qiyās is the opinion of Abū H.anīfah (d. 150/767) that the flow of blood from the body nullifies wud.ū‘ (ablution). This opinion is the result of the application of qiyās. In Abū H.anīfah’s view, since the discharge of urine and stool from the body which are two dirty things (najisān) nullify wud.ū’, the flow of blood which is also a dirty thing (najis),179 according to him, also nullifies wud.ū’.180 As a Z.āhirī who refuses qiyās as one of 175

Ibid., vol. 8, pp. 1055-1056, 1065. Ibid, p. 1166. 177 Ibid., vol.7, p.929. 178 Abū Zahrah, Ibn H. azm, p. 37. 179 The Qur’ān does mention the prohibition of blood poured forth as well as carrion and swine-flesh for food, as they are foul, but it does not state whether blood nullify wud.ū’ or not. Qur’ān, 6:146; see aloso ibid., 2:173 and 15:115. 180 Ibn H.azm, Ih.kām, vol. 1, p. 930. The application of qiyās among the H.anafīs in this matter is not recommended according to Abū Yūsuf (d. 182/798) as reported by Abū al-H.asan al-Karkhī.. Abū Yūsuf does not like the use of qiyās in 176

the sources of Islamic law, Ibn H. azm rejects this view, because he has never known any nas.s., ijmā‘ or dalīl stating that the flow of blood nullifies wud.ū’.181 In spite of Ibn H. azm’s rejection of qiyās, he and his Z.āhirī school were accused of being obliged to use it and called it dalīl.182 . For example, the Shāfi‘ī jurist al-Māwardī (de. 450/1058) said: “…. The other category of people does reject analogy, but still uses independent judgement in legal deduction through reliance on the meaning (spirit) of the words and the sense of the address. The ahl al-z.āhir bellong to the latter…”183 Ibn H.azm denies this accusation and says that his dalīl is purely based on nas.s..184 Another example given by Ibn H. azm to show the fallaciousness of qiyās and to prove the non-existence of ‘illah in religion is that if the holiness of the valley of T.uwā’ in Sinai is the ‘illah for Allah’s ordering Moses to take off his sandals when he was in that valley (see Qur’ān 20:7), the Muslims also should take off their sandals when they enter that valley, or any other holy places, like Makkah, Madīnah, and Bayt alMaqdis.185 Judging by these examples it is fairly evident that Ibn H. azm wants to prove two things: a) that qiyās is not only unnecessary, but even superfluous to religion, because religion has been made complete; 186 b) this matter, since the nullification of wud.ū’ with the existence of a clot of blood on the head of the wound is also the opinion of the s.ah.ābī, Ibn ‘Abbās. Abū Yūsuf gives priority to the opinion of a s.ah.ābī over the application of qiyās, whereas alKarkhī prefers qiyās to the opinion of a s.ah.ābī. Us.ūl al-Sarakhsī, vol. 2, pp. 105106. 181 Ibn H.azm, Ih.kām, vol. 7, p. 931. 182 Goldziher, Z.āhirīs, p. 35 n., quoting Abū ’l-Fidā, Annales, II (n.p., n.d.), p. 262. 183 See ibid., quoting Constitutiones Political, ed. Enger (N.p., n.d.), p. 111. 184 IFor further details, see Ih.kām, vol. 5, pp. 676- 8. 185 Ibid., pp. 929 ff. 186 Ibid., vol. 8, pp. 1049 ff. For Ibn H.azm’s argument in refuting qiyās, see ibid., vol. 7, pp.929 ff.

that the application of qiyās is wrong, because it is based on the idea of ‘illah, and Ibn H. azm rejects it.187

B. Ibn H. azm’s View of the Types of Ijma-‘ Primarily, ijmā‘ can be divided into many types, depending on time, place, and the people who exercise it. Of these types, the most common ones are the following: 1) ijmā‘ on what is known in religion by necessity ) (, for example, the injunction of five-daily prayers for Muslims; this type of ijmā‘ is as strong as the nas.s. itself, and no Muslim will disagree to its being h.ujjah; 2) ijmā‘ of the s.ah.ābah is unanimously accepted by the advocates of ijmā‘, and there is no disagreement between Ibn H. azm and his adversaries in its nature, validity and significance; 3) ijmā‘ of the people of Madīnah is advocated by the Mālikī school alone, but it is not so important as the previous type of ijmā‘, and most of the ‘ulamā’ outside this school do not attach any significance to it and so do not consider it ijmā‘; 4) ijmā‘ where no challenge is known assumes the status of ijmā‘, because of the absence of any dispute regarding its nature; 5) ijmā‘ with one challenge; although this type of ijmā‘ is considered by its exponents to have the status of ijmā‘, it lacks unanimity which is one of the basic conditions laid down by Ibn H. azm for judging the validity of ijmā‘. Of these types of ijmā‘ Ibn H. azm recognizes only the first and the second ones, and this recognition is in harmony with his view of the Qur’ān and the Sunnah as the sources of Islamic law. Having outlined Ibn H. azm’s view of ijmā‘ and the definitions covering this concept, we shall focus on each of the above five concepts, analyzing their nature, significance and validity, all within the framework of Ibn H. azm’s writings. Although Ibn H. azm accepts only two of the above types, his argument in relationship to the remaining types is also important. For this reason we shall study them as well. We shall try, when possible, to elaborate on the view of Ibn H. azm’s opponents and the evidence used for supporting their argument. 18

7For further details, arguments and examples, see ibid., vol. 8, pp. 1138 ff.

1. Ijmā‘ on What is Known in Religion by Necessity This type of ijmā‘ is the agreement of all of the Muslims upon what has already been stated by clear nas.s. ) ( and what is known in religion by necessity. Ibn H. azm offers many examples for this type of ijmā‘, among which is the Muslim’s witness that there is no god but Allah and Muhammad is the Messenger of Allah. 188 Beside its being stated by a clear nas.s. this type of ijmā‘ is transmitted by the whole Muslim community from one age to another. 189 That it is the strongest type of ijmā‘ as indicated by the strength of its nas.s. which is derived from evidence preserved in the Qur’ān and the Sunnah of the mutawātir type. According to Ibn H. azm, anyone who denies it is basically an infidel.190 However, Ibn Taymiyyah in his naqd (critique) of Ibn H. azm’s Marātib asserts that judging rejecters of ijmā‘ as infidels is only valid if they reject the known ijmā‘ ) (. Ibn Taymiyyah also asserts that many ijmā‘ are unknown by people. Moreover, some ‘ulamā’ consider the nas.s. on which the ijmā‘ is based as d.a‘īf (weak) or mansūkh.191 But this type of ijmā‘ is not considered ijmā‘ by Ibn H. azm’s opponents, namely, the jumhūr al-‘ulamā’ (the ‘ulamā’ en masse). They maintain that the ijmā‘ on what is known by necessity is no more than a mere agreement on the nas.s. itself. The examples which they cite are not different from those cited by Ibn H. azm, for instance, those given by alShāfi‘ī.192 In addition, al-Naz.z.ām, who was notorious for his rejection 188

Other examples given by Ibn H.azm involve the other pillars of Islam, such as the injunction of fasting in Ramad.ān. Ibid., vol. 4, pp.529-531. 189 Ibid., p. 505 190 Idem. Marātib, pp. 7 and 10. 191 Ibn Taymiyyah, Naqd Marātib al-Ijmā‘ (in the lower part of Ibn H.azm’s Marātib al-Ijmā‘) (Cairo: Maktabat al-Qudsī, 1357 A.H.), pp. 7, 10-11, and 16. (Hereafter referred to as Naqd). 192 Examples given by al-Shāfi‘ī are: the injunction of five-daily prayers, fasting in Ramad.ān, pilgrimage to Makkah for those who can afford it, zakāt, the prohibition of adultery, killing, stealing, intoxicants, etc. These things belong to the category of what al-Shāfi‘ī calls ‘ilm ‘āmmah (knowledge known by public),

of the occurrence of ijmā‘193 and its validity, is not considered an infidel by Ibn H. azm.194 Moreover, al-Naz.z.ām accepts ijmā‘ which is exclusively based on an authoritative statement, like the statement of the woman about the death of a person with some indications of her truthfulness. Obviously, what is known by necessity is itself an authoritative statement. Therefore, this may indicate that al-Naz.z.ām accepts this type of ijmā‘. To sum up, the position taken by Ibn H. azm and Ibn Taymiyyah are basically the same, namely, that the agreement on what is known in religion by necessity is ijmā‘, but this position is not in accordance with the view of the jumhūr al-‘ulamā’ because this type of ijmā‘ according to them is identical to nas.s.. However, Ibn Taymiyyah considers this type of ijmā‘ as a second proof besides the nas.s.. He maintains that sometimes the Prophet’s legal judgement on a certain issue is known to some people through ijmā‘ only.195 This is also the view of the Mu‘tazilī Abū ’lH. usayn al-Bas.rī, who maintains that the existence of this type of ijmā‘ exempts people from seeking the proof in the nas.s..196 However, the fact that Ibn Taymiyyah approves of Ibn H. azm’s position indicates some common stand among the Z.āhirīs and the H. anbalīs regarding the above ijmā‘. But it is not certain whether the position taken by Ibn H. azm and Ibn Taymiyyah reflects the views of the Z.āhirī and the H. anbalī schools as a whole. 2. Ijmā‘ of the S.ah.ābah This ijmā‘ as formulated by Ibn H. azm centers on the conceptual and semantical arguments put forward by the proponents and the opponents of ijmā‘. Among the leading members of the former are Ibn where no one who reaches adulthood and has sound mind can be ignorant of it. See Risālah, pp. 357-358. 193 Kamāl al-Dīn Ibn al-Humām, al-Tah.rīr fī Us.ūl al-Fiqh (Cairo: Mat.ba‘at Mus.t.af á al-Babī al-H.alabī, 1351 A.H.), p. 399. 194 Ibn Taymīyah, Naqd, p. 11. 195 Idem, Ma‘ārij al-Wus.ūl, p. 38. 196 I Al-Barī, Mu‘tamad, vol. 2, p. 521.

H. azm and the jumhūr al-‘ulamā’. Two concepts are central to their basic positions, namely, the exact definition of the s.ah.ābah and the concept of tawqīf (the teaching of the Prophet). Despite the differences, the general trend among both groups is their approval of the concept and its validity. To begin with, Ibn H. azm, as well as the Z.āhirī school, links this type of ijmā‘ to a particular era, namely, the period covering the lives of the s.ah.ābah. Hence the concept centers on the s.ah.ābah.197 This position is accepted by Ibn H. azm’s opponents, i.e., the jumhūr al‘ulamā’, but it is not certain how far they agree on the details of the conditions relating to it. In the instance of Ibn H. azm, he stipulates that such ijmā‘ of the s.ah.ābah had the status of ijmā‘ only when they were living in Madīnah and before they had been scattered in the dār al-Islām (Muslim lands). In essence, the s.ah.ābah as defined by Ibn H. azm, are the Prophet’s contemporaries who saw him once or more than once, also any of those who heard him saying something, and neither opposing him nor rejecting his prophethood.198 This is also the opinion of the jumhūr al-‘ulamā’ in which they assert that the s.ah.ābah are those who believe in the Prophet and met him, even though the meeting may have lasted only for a short time ) (. Whether they report about him or not is not a condition. Ibn H. azm rejects the opinion of those who maintain that there would be a limit of time and number in seeing the Prophet and being in company with him to qualify as a s.ah.ābī. Ibn H. azm also maintains that since there is no such limit available, this is crucial to the acceptance of the concept. Moreover, Ibn H. azm argues, the origin of the word als.uh.bah relates to anyone with whom somebody has a certain matter and 197

Ibn H.azm, Ih.kām, vol. 4, p. 509. The s.ah.ābah include free people as well as slaves, even children, like the Prophet’s grand-son al-H.asan and al-H.usayn. Ibn H.azm argues further that the s.ah.ābah exclude the hypocrites of Madīnah, and those whose conditions are unfavourable, like Hīt the effeminate, whom the Prophet ordered to be banished, and the expelled al-H.akam. Ibid., vol. 2, p. 203; vol. 5, pp. 663- 4. Al-Qād.ī ‘ Iyād. (d. 554/1149, the Mālikī jurist and historian who became qād.ī of Cordova in 531/1136-1137), reported that the historian al-Wāqidī (d. 206/822, who became qād.ī of Baghdad) excluded children from being s.ah.ābah, but this opinion was rejected by the jumhūr al-‘ulamā’. Al-Shawkānī, Irshād, p. 70. 198

on account of this he is considered to have accompanied him. As for anyone who has seen the Prophet and neither opposes him nor denies his prophethood he deserves to be called a s.ah.ābī, in Ibn H. azm’s view.199 This view of Ibn H. azm is similar to that of Ibn Taymiyyah, Ah.mad ibn H. anbal, and Mālik ibn Anas.200 On the basis of this argument, Ibn H. azm rejects the view reported by Sa‘īd ibn al-Musayyib201 which imposes the condition of living with the Prophet for at least one year or joining him in one of his campaigns in order to be considered a s.ah.ābī.202 According to Ibn H. azm the s.ah.ābah include those who heard from the Prophet when they were still infidels, then became Muslims, and gave their reports, if they were persons of good reputation (‘adl).203 According to Ibn H. azm all of the s.ah.ābah were (sing. , honest people), (eminent) and (among the people of Paradise). He bases this view on five Qur’ānic verses and one h.adīth. These Qur’ānic verses are as follows:

199

Ibn H.azm, Ih.kām, vol. 5, p. 665. Ibn Taymiyyah, S.ih.h.at Us.ūl Madhhab Ahl al-Madīnah, ed. & comment. Zakarīyā ‘Alī Yūsuf (Citadel [Cairo]: Mat.ba‘at al-Imām, n.d.), p. 19. (Hereafter referred to as S.ih.h.at Us.ūl). 201 Sa‘īd ibn al-Musayyib was one of the tābi‘īn (the generation following that of the s.ah.ābah) who lived in Madīnah. Ibn H.azm, Jawāmi‘ al-Sīrah wa Khams Rasā’il Ukhrá, ed. Dr. Ih.sān ‘Abbās and Dr. Nās.ir al-Dīn al-Asad, rev. Ah.mad Muh.ammad Shākir (Egypt: Dār al-Ma‘ārif, n.d.), p. 325. (Hereafter referred to as Jawāmi‘); idem, Ih.kām, vol. 5, p. 668, line 17. 202 Al-Shawkānī, Irshād, p. 70. 203 Ibn H.azm, Ih.kām, vol. 2, p. 203. 200

“Muhammad is the messenger of Allah. And those with him [i.e., the s.ah.ābah] are hard against disbelievers and merciful among themselves. Thou (O Muhammad) seest them bowing and falling prostrate (in worship), seeking bounty from Allah and (His) acceptance. The mark of them is on their foreheads from the traces of prostration. Such is their likeness in the Torah and and their likeness in the Gospel—like as sown corn that riseth firm upon its stalk, delighting the sowers—that He may enrage the disbelievers with (the sight of) them. Allah has promised, unto such of them as believe and do good works, forgiveness and immense reward.” (َQur’ān 48:29)

“Lo! Those unto whom kindness hath gone forth before from Us, they will be far removed from thence. They will not hear the slightest sound thereof, while they abode in that which their souls desire. The Supreme Horror will not grieve them, and the angels will welcome them, (saying): This is your day which ye were promised.” (َQur’ān 21:101-3)

“… Those who spend and fought before the victory are not upon a level (with the rest of you). Such are greater in rank than those who spent and fought afterwards. Unto each hath Allah promised good. And Allah is Informed of what you do.”

(Qur’ān, 57:10).204

The h.adīth upon which Ibn H. azm bases his view of the good reputation and eminence of the s.ah.ābah is that the Prophet said:

“Leave for me my s.ah.ābah. For if any of you had gold as big as Mt. Uh.ud and you spent it in the path of Allah, it would not reach [the reward or the merit of] one mudd (about 1.053 liter) [of barley or dates] or a half of it [spent by them in the path of Allah]. ”205

As the s.ah.ābah are the only people whose salvation was guaranteed by Allah, Ibn H. azm contends that they are reliable people. Their ‘adālah (honesty, honourable record) does not need investigation, and their reports should be accepted without any condition. Unlike the s.ah.ābah, people of the following generation (tābi‘īn) and of further generations do not have such a guarantee of salvation, and therefore, in Ibn H. azm’s view, their ‘adālah should be investigated.206 There are five views on the ‘adālah of the s.ah.ābah. These views are as follows: a. The view of many ‘ulamā’ which is similar to that of Ibn H. azm. Ibn al-H.ājib from the Mālikī school maintains that many ‘ulamā’ accept the report of the s.ah.ābah without investigating their (the s.ah.ābah’s) conditions. This view, according to the Shāfi‘ī qād.ī Abū Bakr alBāqillānī is that of the salaf (the first generation of the s.ah.ābah) and the jumhūr al-khalaf (the tābi‘ūn and other generations en masse). According to the Shāfi‘ī jurist Imām al-H. aramayn al-Juwaynī (d. 478/1085), the ‘adālah of the s.ah.ābah is ijmā‘. He bases his view on 204

Ibn H.azm, Ih.kām, vol. 5, p. 664. Ibn H.azm, Ih.kām, vol. 5, pp. 664-665; idem, Fas.l, vol. 4, p. 114. 206 Idem, Ih.kām, vol.5, p. 665.

205

certain Qur’ānic verses and h.adīths, among which are those mentioned by Ibn H. azm above.207. b. The view of Abū ’l-H. usayn ibn al-Qat.t.ān (d. 359/970), and alNaz.z.ām is that the ‘adālah of the s.ah.ābah, like that of other people, should be investigated. Ibn al-Qat.t.ān gives the examples of the s.ah.ābah whose ‘adālah is rejected, like Wahshīwho killed H. amzah, and al-Walīd who drank intoxicants (khamr). Al-Naz.z.ām among the Mu‘tazilīs gives the example of a s.ah.ābī who slandered another s.ah.ābī. If the slanderer was right, al-Naz.z.ām contends, the slandered would not be ‘adl. Yet, if the slanderer was wrong, he would not be ‘adl. c. The view of the Mu‘tazilī ‘Amr ibn ‘Ubayd (d. 142/760) who maintains that the s.ah.ābah were all ‘udūl, before the fitan (sing. fitnah, dissentions), i.e., the civil wars, e.g., the battles of S.iffīn and al-Jamal. After these fitan, the ‘adālah of the s.ah.ābah should be investigated. d. The view of a group among the Mu‘tazilīs and the Shī‘īs who maintain that all of the s.ah.ābah were ‘udūl. e. The view of al-Māwardī (d. 450/1058) who maintains that a s.ah.ābī who was known for his keeping company with the Prophet was ‘adl; otherwise, his ‘adālah should be investigated. Like Ibn H. azm, Shawkānī (d. 1255/1839) accepts the first view and rejects the four others. Ibn H. azm does not mention the other views about the ‘adālah of the s.ah.ābah. However, he asserts that the s.ah.ābah include the infidel who heard the Prophet and later became a Muslim. He was then also ‘adl. According to Ibn H. azm the ‘adālah of a person in the time of the s.ah.ābah became a condition only during the time he was giving the warning and the report ) (, not when he was 207

Al-Shawkānī, Irshād, p. 69.

witnessing what he had reported ) (. This is because there were hypocrites in Madīnah during the time of the Prophet, as well as people whose conditions were unfavourable. There were also an unidentified man who falsely claimed to have been sent and authorized by the Prophet to rule the people of an area at Banī ’l-Layth, two miles outside of Madīnah. With his trick he intended to marry a girl who had rejected him in the time of the Jāhilīyah (pre-Islamic paganism). But his scheme was discovered when people came to the Prophet. This man, and any person who deceived the Prophet, was not considered a s.ah.ābī. Ibn H. azm contends further that reports are accepted only from respectable persons whose merit was known208. This statement seems to contradict the previous one where Ibn H. azm maintained that all the s.ah.ābah were ‘udūl. What Ibn H. azm meant was that if a person is known to be a s.ah.ābī he is ‘adl. There are many ways to know whether a person is a s.ah.ābī, among which are: his participation in one of the Prophet’s campaigns and battles, e.g., the battles of Badr, Uh.ud, H. unayn, etc., his participation in one of the two pledges of ‘Aqabah, and his participation as a member of the envoys from the Arab tribes which visited the Prophet. On the other hand, there were only 130 and some s.ah.ābah who reported fatāwá (sing. fat wá, futwá or .futyā, formal legal opinions) in matters of ‘ibādāt (acts of devotion) and ah.kām (sing. h.ukm, laws, legal judgements). Ibn H. azm mentions them by name in his writings.209 Ibn H. azm asserts that the s.ah.ābah included those who fought ‘Alī ibn Abī T.ālib in the battle of S.iffīn, where the army of ‘Alī and that of Mu‘āwiyah ibn Abī Sufyān were engaged, and in the battle of al-Jamal, where ‘Ā’ishah, T.alh.ah, and al-Zubayr fought ‘Alī and his partisans. According to Ibn H. azm, neither ‘Alī nor his partisans, nor his opponents intended to fight at the battle of al-Jamal. But rather, both parties met together in Bas.rah to discuss the assassination of ‘Uthmān and to apply the Islamic penal law upon the assassins. But the assassins, who were 208

Ibn H.azm, Ih.kām, vol. 2, p. 303. Ibid., vol.5, pp. 665-667; idem, Jawāmi‘, pp. 319-323.

209

almost thousands in number, were afraid of the punishment. Therefore, they secretly incited people to fight, so that both parties were compelled to defend themselves, and the battle occurred. 210 With regard to the battle of S.iffīn, Ibn H. azm contends that ‘Alī fought Mu‘āwiyah, not because of Mu‘āwiyah’s rejection to pledge allegiance to ‘Alī as a caliph, but rather because of his rejection to carry out his orders in the entire land of Shām (Syria), while ‘Alī as Caliph, should be obeyed. Ibn H. azm asserts that ‘Alī was right, and Mu‘āwiyah did not deny the merit and the right of ‘Alī for the post of the caliph. It was Mu‘āwiyah’s ijtihād which led him to give priority to taking retaliation ) ( for the assassins of ‘Uthmān over the bay‘ah (the pledge of allegiance). According to Ibn H. azm, Mu‘āwiyah was wrong in this ijtihād.211 Another concept which is essential for the assessment of ijmā‘ of the s.ah.ābah is what Ibn H.azm alled tawqīf which means “teaching from the Prophet”,212 namely, that they are “in constant contact with the Prophet and fully aware of his intentions.” 213 It is directly received by the s.ah.ābah alone, and this is the ijmā‘ of the s.ah.ābah, in Ibn H. azm’s view.214 To this, the jumhūr al-‘ulamā’ are in agreement with Ibn H. azm’s opinion. The disagreement lies in the jumhūr’s insistence on the ijmā‘ of the s.ah.ābah beyond the tawqīf, i.e., ijmā‘ based on qiyās and ijtihād. They contend that there are many examples where the s.ah.ābah exercise their ijmā‘ based on ijtihād.215 One of these examples cited by 210

Idem, Ih.kām, vol. 2, p. 204; for further details, see idem, Fas.l, vol. 4, pp. 156-159. 211 For further details, see idem, Fas.l, vol. 4, pp. 159-163. 212 We use here ta‘līm (teaching) as the meaning of tawqīf, which is the interpretation of Abū Zahrah. This is the only meaning which we know is appropriate for the context. Abū Zahrah, Ibn H. azm, p. 357. 213 O.A. Farrukh, “Z.āhirism,” p. 277. 214 According to al-Sarakhsī, the chief merit of the s.ah.ābah is not their precedence of the witness, but to be believers, though he accepts the ijmā‘ of the s.ah.ābah as the strongest one. Us.ūl al-Sarakhsī, vol. 1, pp. 313 and 318. 215 Beside the occurrence of ijmā‘ among the s.ah.ābah, disagreement among them also occurred. One example is their disagreement over the issue of umm al-

the jumhūr is the agreement of the s.ah.ābah upon the election of Abū Bakr through ijtihād and ra’y. The jumhūr add that the s.ah.ābah maintain that as the Prophet was pleased with him for the sake of their religion, they should be pleased with him for the sake of their worldly matters. This opinion was rejected by Ibn H. azm on two points: a. He maintains that the election of Abū Bakr as khalīfah (caliph) through qiyās was never held by anyone at that time, but this opinion is adhered to by people of a later generation among the followers of qiyās who used whatever they could find to defend their opinions. b. Even if qiyās is supposed to be valid, its application in this case is false, because the ‘illah of khilāfah, as Ibn H. azm argues, is different from that of prayer. This is because an Arab, whether a master or a slave, who has knowledge of the military policy or of ruling the country can lead a prayer, while the man who takes the position of khalīfah must be of the Quraysh tribe. Furthermore, imāmah, i.e., khilāfah is an a s.l (basis), while prayer is one of the furū‘ (branches).216 Abū Bakr was elected, in Ibn H. azm’s view, through nas.s. from the Prophet. Ibn H. azm refers to a h.adīth where the Prophet walad (a slave-girl who has borne her master a child). According to ‘Umar, she could not be sold unless to set her free. Ibn Mas‘ūd, Ibn ‘Abbās, and Ibn al-Zubayr, however, asserted that she could be sold by her master, but if her child is alive when her master dies, she is set free at the expense of her child’s share in the inheritance. Joseph Schacht, “Umm al-Walad,” S.E.I., pp. 601-603. Ibn H.azm mentions the report of Jābir ibn ‘Abd Allāh who asserts that umm al-walad was sold during the time of the Prophet and Abū Bakr, while ‘Umar prohibited her being sold. Another report mentioned by Ibn H.azm is that ‘Alī, during his rule, asserted that he followed ‘Umar and ‘Uthmān in their rulings on setting free umm al-walad. According to Ibn H.azm, the right view is setting her free. He bases his view on a h.adīth which states that when Māriyah, the Prophet’s concubine, bore Ibrāhīm, the Prophet said: “She is set free by her child.” Ih.kām, vol. 4, p. 520. For other examples of disagreements among the s.ah.ābah, see Ibn Qayyim alJawzīyah, I‘lām al-Mūqi‘īn ‘an Rabb al-‘Ālamīn (in the lower part of his H.ādī ’lArwāh.), 3 vols. (Egypt: Mat.ba‘at al-Nīl, n.d.), vol. 2, p. 327. (Hereafter referred to as I‘lām al-Mūqi‘īn). 216 Ibn H.azm, Ih.kām, vol. 7, pp. 982-987; see also idem, Fas.l, vol. 4, p. 109.

in his illness before his death asked ‘Ā’ishah to call Abū Bakr and her brother, so that he might write a kitāb (a document, a message) for the succession of Abū Bakr.217 However, some modern scholars disagree with Ibn azm in this matter. Among those who disagree with Ibn H. azm is Ahmad Hasan, who maintains that the election of Abū Bakr was initiated by people who were present in the mosque. Later on, this election was justified on the basis of ijmā‘.218 Another example cited is the agreement of the s.ah.ābah, through the exercise of ijtihād during the khilāfah of ‘Umar, on the punishment of an intoxicant drinker with eighty lashes, while it was forty lashes during the time of the Prophet and Abū Bakr. On this, ‘Alī says that if someone drinks, he would be drunk; if he was drunk, he would talk irrationally; if he did so, he would slander. Therefore, ‘Alī would apply to him the legal punishment of slanderers, i.e., eighty lashes. ‘Abd alRah.mān ibn ‘Awf, another s.ah.ābī says the minimum h.add (fixed punishment) is eighty lashes.219 Ibn H. azm maintains that ‘Umar would not establish a penal law without any basis from the nas.s.. The additional forty lashes, in Ibn H. azm’s view, is ta‘zīr (discretionary punishment), for it is legal for one who continually drinks to be punish with eighty lashes, while the one who drinks at first sight is punished with forty lashes. Therefore, Ibn H. azm denies the existence of ijmā‘ based on ijtihād in this case, i.e., the eighty lashes for the punishment of an intoxicant drinker. Ibn H. azm refers to the report that when ‘Abd Allāh ibn Ja‘far was flogging an intoxicant drinker ‘Alī counted until forty and said: “Stop, the Messenger of Allah, peace be upon him flogged with forty, Abū Bakr with forty, and ‘Umar with eighty [lashes], and all are Sunnah.” According to Ibn H. azm “all are Sunnah” means ta‘zīr is also Sunnah. This is rejected by his opponents, because ta‘zīr is with ten lashes only. To this, Ibn H. azm replies that ‘Umar might punish with ten 217

For further details on Ibn H.azm’s argument on the issue of the succession of Abū Bakr, see idem, Ih.kām, vol. 7, pp. 982-987. 218 Ahmad Hasan, “The Political Role of Ijmā‘,” Islamic Studies 6 (June, 1973), p. 139. 219 Al-Āmidī, Ih.kām al-Āmidī, pp. 379-380; al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 301.

lashes for every cup drunk by the intoxicant drinker. 220 In accepting the two kinds of h.add (i.e., forty and eighty lashes), Ibn H. azm maintains that the ‘ulamā’ (among the s.ah.ābah) agree to this view as ijmā‘ of the s.ah.ābah (i.e., based on nas.s.) and that the h.add should not exceed eighty lashes.221 According to al-Sarakhsī, the eighty lashes is Sunnah, because, through investigation, the number of people who were ordered by the Prophet to beat the intoxicant drinker with their pairs of sandals were forty. Therefore, the jurists agree that the punishment of the intoxicant drinkers is eighty lashes.222 In fact, Ibn H. azm sometimes mentions only one type of ijmā‘ which he advocates, namely; ijmā‘ in what is confirmed that the whole s.ah.ābah say, know, and have no disagreement about. The example given by Ibn H. azm are things known in religion by necessity, e.g., that the s.ah.ābah prayed with the Prophet, or that they knew that the Prophet prayed with the people. Ijmā‘ also includes things which no Muslim would remain a believer if he does not believe in it, e.g., the five-daily prayers. Abū Zahrah apparently bases his view on this when he mentions only one ijmā‘ advocated by Ibn H. azm, and when he says that the essence of ijmā‘ in Ibn H. azm’s view is what is known in religion by necessity, while the occurrence of ijmā‘ is only during the period of the s.ah.ābah.223 What makes us divide the ijmā‘ propagated by Ibn H. azm into two types is that: a) in other places in his books, Ibn H. azm himself mentions two types of ijmā‘; Ibn H. azm mentions three ways of the transmission of laws of religion, which include ijmā‘. They are: 1) laws transmitted by the whole community from one age to another, like: belief (īmān), prayers, and fasting. Ibn H. azm maintains that there is nothing disagreed upon in this category. This we call what is known in religion by necessity, and we put it as the first type of ijmā‘. 2) laws transmitted by way of tawātur, like many Sunan (practices) of the Prophet, some of 220

Ibn H.azm, Ih.kām, vol. 4, pp. 516-517. Idem, Marātib, p. 133. 222 Us.ūl al-Sarakhsī, vol. 1, p. 301. 223 Abū Zahrah, Ibn H. azm, pp. 354-358. 221

which are agreed upon and others are disagreed upon. However, the disagreement does not come from the s.ah.ābah, but rather, from people of later generations. The examples are: the prayer of the Prophet in sitting, witnessed by the s.ah.ābah, who were present at that time, and that the Prophet levied tax on the Jews of Khaybar, for half of the crops of the land they were cultivating. These deeds of the Prophet are legal actions, as they are the execution of certain injunctions, i.e., prayer and the tax levied to the Jews of Khaybar. Therefore, they are h.ujjah, and sanad of ijmā‘. This we call ijmā‘ of the s.ah.ābah, and we put it as the second type of ijmā‘ advocated by Ibn H. azm; 3) laws which are transmitted by one reliable person on the authority of another )ٍ ( , i.e., khabar al-wāh.id. Some of these laws are also disagreed`upon by people in later generations. Ijmā‘ of this type is very rare.224 Apart from these two types of ijmā‘, i.e., the ijmā‘ on what is known in religion by necessity and the ijmā‘ of the s.ah.ābah, Ibn H. azm does not see any reason to call the remaining types ijmā‘, because they are based upon other than nas.s., and occurred at an era other than that of the s.ah.ābah. We shall discuss briefly some of these remaining types of ijmā‘, focusing on the reason why Ibn H. azm refutes the legal arguments of those who adhere to them. 3. Ijmā‘ of the Peoples of Madīnah Ibn H. azm was a leading opponent of this type of ijmā‘ which had been primarily advocated by Mālikī jurists. Although Ibn H. azm was a leading opponent of this type of ijmā‘, he was not the first to reject it. Several leading ‘ulamā’, such as al-Shāfi‘ī225 and al-Layth ibn Sa‘d 226 224

Ibn H.azm, Ih.kām, vol. 4, pp. 505-506; see also idem, Fas.l, vol. 2, pp. 8182. Khabar al-wāh.id can be known by necessity. In being so, ijmā‘ based on it can occur. 225 Al-Shāfi‘ī, al-Risālah, pp. 533-535. 226 Abū Zahrah, Ibn H. azm, p. 362; al-Layth ibn Sa‘d was one of the tābi‘ī tābi‘īn (the following of the following generation of the s.ah.ābah), who lived in Egypt. See Ibn H.azm, Jawāmi‘, p. 332.

preceded him in this respect. This ijmā‘ was also attacked by the H. anafī jurist al-Sarakhsī. The legal history of this ijmā‘ and the arguments supporting it need not be studied here in detail, as long as the notion has been disapproved by Ibn H. azm. Rather, we shall concentrate on why Ibn H. azm rejects this type of ijmā‘, accounting simultaneously for the opponents’ arguments. It is not known whether Ibn H. azm‘s rejection of this ijmā‘ was influenced by the view of his predecessors in this field. We know only that he refused the ijmā‘ of the people of Madīnah and virtually any ijmā‘ agreed upon by scholars of a given Muslim city. The Mālikīs, as we know from Ibn H. azm, propagate the ijmā‘ of the people of Madīnah, and their arguments presented by Ibn H. azm are as follows: a. They maintain that Madīnah is the best city in dār al-Islām by virtue of several h.adīths mentioning the merits of that city.227 They also maintain that Madīnah is the place of the descent of revelations, the land of migration, the gathering place of the s.ah.ābah, and the residence-place of the Prophet. Since other rival cities had no such status, they do not hesitate to single out Madīnah with the privilege of ijmā‘. b. They also claim that the people of Madīnah have more knowledge and are more familiar with the ah.kām (laws) of the Prophet than the people of any other city. Three. The people of Madīnah were eye-witnesses of the last deeds of the Prophet, and they know the nāsikh (abrogative) from mansūkh

227

Ibn H.azm does not offer details, because the h.adīths involved have been dealt by him in his book al-Īs.āl which is not extant, see Ih.kām, vol. 4, pp. 552-553. Nonetheless, al-Āmidī of the Shāfi‘ī school does mention the h.adīths used by the proponents of this type of ijmā‘, among which is: “Verily, Madīnah is pure, it removes its dirt like a pair of bellows remove the dirt of iron.” Ih.kām al-Ā midī, vol. 1, p. 349.

(abrogated). Such knowledge, according to the Mālikīs, is important because it gives us information about the latest laws from the Prophet which should be followed by Muslims. Four. The h.ukm of the Prophet is known by the majority rather than the minority of the s.ah.ābah. Since the majority in this instance are the people of Madīnah, and since there are few followers of the Prophet in other cities, they (the majority) had a better knowledge of the h.ukm and its implication. On the basis of these four arguments they claim the ijmā‘ of the people of Madīnah as h.ujjah. 228 Ibn H. azm rejects all these arguments. Regarding Madīnah and its status, he disputes the uniqueness of the city and contrary to this, he maintains that Makkah is the best city, because it is confirmed by nas.s..229 If Madīnah were the best city, Ibn H. azm would say that there will be no way to assume that the agreement of its people is ijmā‘. To support this view, he cites two Qur’ānic verses which mention the existence of hypocrites in Madīnah and that the hypocrites will be in the lowest deeps of Hell. They are:

“And among those around you of the wandering Arabs there are hypocrites, and among the townspeople of Al-Madīnah (there are some who) persist in hypocrisy whom thou (O Muhammad) knowest not. We, We know them, and We shall chastise them twice; then they will be 228

For further details of the position of the Mālikīs, see Ibn H.azm, Ih.kām, vol. 4, pp. 552-553. 229

Ibn H.azm does not give us any nas.s. to prove that Makkah is the best city. However, the position of Makkah as the holiest city in Islam is indisputable.

relegated to a painful doom.” (Qur’ān 9:101),

and

“Lo! The hypocrites (will be) in the lowest deep of the fire, and thou wilt find no helper for them” (Qur’ān 4:145).

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). 230 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. 231Just 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 230

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 alH.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. 231

Ibid

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.232 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 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.233 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 232 233

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

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.234 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.235 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 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 alSarakhsī‘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.236 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’.237 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. Ibid., vol. 4, pp. 556-557; vol. 6, p. 878. Ibid.. vol. 4, p. 558; vol. 6, p. 879. 236 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. 237 Ibn Taymiyyah, S.ih.h.at Us.ūl, p. 23. 234

235

However, the measurement of mudd in other Muslim cities is different.238 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. 239 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 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.240 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.241

238

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). 239 Ibn H.azm, Ih.kām, vol. 6, p 876. 240 See W. Hinz, Islamische Masse, p. 51. 241 For further details on pound (rat.l ), see ibid., pp. 28-33.

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 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 (alMaghrib) 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.242 242

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.

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 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 taqlīd243 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.244 Ibn H. azm cites two reasons for its legality: 1) the attribute of virtue, i.e., ‘ulamā’ involved 243

Ibn H.azm denounces taqlīd. For his arguments against taqlīd, see Ih.kām, vol. 6, pp. 793 ff. 244 Ibid., vol. 4, p. 531. This type of ijmā‘ had been alluded by al-Shāfi‘ī, see Jimā‘ al-‘Ilm, pp. 60-64.

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.245 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. 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. 246 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.247 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 245

Ibn H.azm, Ih.kām, vol. 4, p. 531. Ibid., p. 535. 247 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. 246

beat people who performed it.248 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. 249 This argument of Ibn H. azm also indicates his 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:

248

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. 249 I For further details, see ibid., p. 537.

“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.250 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). 250

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

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..251 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 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 251

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

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. amīd252 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).253 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 ) (.254 Al-T.abarī’s view is not stated. We only know that he disregards a single challenger in ijmā‘.255 Since Ibn H. azm treats the two eminent scholars together, we 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 al-T.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‘.256 One, the opponents of 252

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 al-Shīrāzī, T.abaqāt al-Fuqahā’, ed. Dr. Ih.sān ‘Abbās (Cairo: Dār al-Rā’id al-‘Arabī, 1970, p. 141. 253 bn H.azm, Ih.kām, vol. 4, p. 544; vol. 1, p. 180. 254 Ibid., p. 544 255 Ibid. 256 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

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.257 Ibn H. azm rejects this view by stating that the shudhūdh is not altogether a matter of deviation from the jamā ‘ah. Rather, it 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

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

an issue, and having done so, one of them challenged the agreement after he had agreed to it.258 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.259 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 community; again they themselves would become shādhdh from the truth.260 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 258

Ibid., vol. 5, p. 661. Ibid. 260 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. 259

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.”261

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‘.262 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.263 261

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 community…” instead of “The community of Muhammad…”), among which are al- Bukhārī in his al-Jāmi‘ al-S.ah.īh. (Kitāb alFitan), al-Tirmidhi’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. 262 Ibn H.azm, Ih.kām, vol. 4, p. 545. 263 Al-Āmidī, Ih.kām al-Āmidī, vol. 1, p. 339.

This view is not accepted by Ibn H. azm, because he throws doubt upon the veracity of the h.adīth by disputing the reliability 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 al-h.adīth (a traditionist whose h.adīth gains no recognition).264 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.265 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.266 Watt asserts that some Western critics consider it to be a forged h.adīth intended to justify the validity of ijmā‘.267 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:

264

bn H.azm, Ih.kām, vol. 4, p. 545. Ibid. 266 Joseph Schact, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), p. 91; George F. Hourani, “Basis of Authority,” pp. 157158. 267 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. 265

“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 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.”268

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).269 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 268

Ibn H.azm, Ih.kām, vol. 4, p. 545. 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. 269

questions

(

(270 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 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. 271 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 270

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). 271 Ibid.

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. 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. 272 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 272

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).

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.". 273

He was said to have been seen by the Prophet plunging in the rivers of Paradise.274 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).275

273

Ibn Banī ‘Āim, al-Āād wa ’l-Mathānī, vol. 2, p. 363 (al-Maktabah alShāmilah). 274 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). 275 Ibid., p. 547.

Ibn H. azm‘s comment on this verse is limited in two points: 1) that the believers are meant to be the jamā‘atu ’l-h.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. 276 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.277 The other verses quoted by Ibn azm to indicate that the jamā‘atu ’l-h.aqq belong to minority are as follows:

“…, save such as believe and do good works, and they are few.” (Qur’ān 83:42).

“…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. 276

‘Abd al-Jabbār, Sharh. al-Us.ūl, pp. 61-62. Ibn H.azm, Us.ūl, vol. 4, p. 548.

277

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. 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 nonbelievers 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.278 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 278

Ibid.

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.279 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).

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’.

279

Ibid., p. 550.

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 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.

CONCLUSION Ibn H.azm, who revived the Z.āhirī school in the fifth/eleventh century in Andalusia, faced severe reaction from his contemporary ‘ulamā ’ and rulers, who considered the Z.āhirī school as an intruding one, for they had already followed the Mālikī school. His motive for propagating and defending this school, which he considers the right one, is political and religious. Political, because, as a pro-Umayyad, he intends to keep the Umayyad caliphate from losing its control in Andalusia. Religious, because he intends to bring the people of Andalusia in general, and its ‘ulamā’ and rulers in particular, back to the pure Islamic teaching. He believes that the political instability and the corruption in the country are due to the people’s deviation from and violation of the nas.s., i.e., the Qur‘ān and the Sunnah of the Prophet. Because Ibn H. azm believes that politics and religion are inseparable, he confines himself to teaching people the Z.āhirī fiqh to achieve his goal. Ibn H. azm insists upon the total agreement of Muslims for the occurrence of ijmā‘. Due to the existence of natural and inherent disagreements and divergences in the human kind, Ibn H. azm insists on nas.s. as the only basis of ijmā‘, for no Muslim should deny its authority. The ijmā‘ maintained by Ibn H. azm is that of the s.ah.ābah in its broad meaning. It comprises two types: a) ijmā‘ on what is known in religion by necessity, like the injunction of five-daily prayers, and b) ijmā‘ of the s.ah.ābah in its narrow meaning, i.e., on what the s.ah.ābah witnessed and heard from the Prophet, like the tax he imposed on the Jews of Khaybar. However, the ‘ulamā’ en masse do not consider this ijmā‘ as such, for it is not more than the transmission of the nas.s. by the s.ah.ābah from the Prophet to their following generation. Although to some extent there is a similarity of view on ijmā‘ between Ibn H. azm and al-Naz.z.ām as well as al-T.ūsī, this similarity is merely accidental, caused by different motivations and backgrounds. Ibn H. azm, al-Naz.z.ām and al-T.ūsībelong to the Z.āhirī school of law, the Mu‘tazilī school of theology, and the Shī‘ah sect respectively. However,

we know that the Mu‘tazilah and the Shī‘ah have similar view on the createdness of the Qur’ān as well as on the names and attributes of Allah. Basing ijmā‘ on nas.s. alone, i.e., the Qur’ān and the Sunnah, Ibn H. azm asserts that, like the Qur’ān, the Sunnah of the Prophet is also a wah.y and preserved by Allah. The loss of the Sunnah, mutawātir as well as āh.ād,would cause the destruction of religion, because Sunnah provides us with essential details on Allah’s statements and instructions in the Qur’ān for human beings. However, Ibn H. azm maintains that unlike the Qur’ān, the Sunnah is not an established text in the Scripture, and contains no miracle in its structure. Unlike to opinion of the majority of ‘ulamā’ in accepting khabar al-wāh.id as probable evidence Ibn H. azm considers it as convincing evidence, provided that it was reported by a reliable transmitter, who traced his hearing to the Prophet through reliable transmitters. Ibn H. azm does not accept the validity of z.ann in religion, because he asserts that z.ann is other than the truth and is prohibited by Allah. Contrary to the opinion of the majority of ‘ulamā’, Ibn H. azm does not accept the taqrīr of the Prophet as h.ujjah, because he contends that whatever the Prophet did not disapprove of is permissible. The Prophet’s fi‘l is considered as mandūb and uswah for Muslims, unless there is an indication of its being wājib, like his execution of a certain injunction. It is the qawl of the Prophet which is accepted by Ibn H. azm as a h.ujjah by itself, while the majority of ‘ulamā’ consider qawl, fi‘l, and taqrīr of the Prophet together as h.ujjah. Qiyās is rejected by Ibn H. azm as one of the sources of Islamic law or as sanad of ijmā‘, for he considers it as an innovation and superfluous to religion. He maintains that whatever Allah does not state as something enjoined or prohibited is permissible, and as Allah has perfected the religion of Islam, any law based on other than nas.s., is to be rejected. The existence of an ‘illah upon which qiyās is based, is rejected by Ibn H. azm.

Although al-T.ūsīand al-Naz.z.ām share the view of Ibn H. azm in rejecting qiyās, they differ in their solving an emerging issue, which is usually solved by the majority of ‘ulamā’ by applying qiyās. Ibn H. azm will exercise ijtihād to find its legal judgement based on nas.s.. If he does not find any dalīl in the nas.s., the issue is considered permissible, which is the basic legal judgement of everything. Al-T.ūsī will try to find the opinion of the hidden imām on the issue. But if it is still unknown, it will be revealed in the ijmā‘ of the ‘ulamā’ of the Shī‘ah. If no agreement has been reached, the opinion of the imām will be with one which has dalālah from the nas.s.. If no dalālah is available, the opinion of those who are unknown in person and by lineage is with that of the imām. If the groups of disagreeing ‘ulamā’ consist of both known and unknown ‘ulamā’, the opinion of any group is accepted. Although the opinion of the imām is not with any of the disagreeing groups, their opinions are permitted. Otherwise, if they are not permitted, the imām should not remain silent any longer. The opinion of al-Naz.z.ām on this issue is unknown. However, he accepts the statements of the hidden imām as h.ujjah, as asserted by al-Shahrastānī. Other than the ijmā‘ which he advocates, i.e., ijmā‘ of the s.ah.ābah based on nas.s., Ibn H. azm rejects ijmā‘ and its authority. Dealing with ijmā‘ of the people of Madīnah, he asserts that ijmā‘ of the people of Makkah is more deserving of acceptance than that of Madīnah, if the ijmā‘ of the people of Madīnah should be accepted. Moreover, Ibn H. azm protests that there were hypocrites and Rawāfid. in Madīnah. Asserting the occurrence of ijmā‘ merely because no challenge is known is also rejected by Ibn H. azm. For him, the absence of challenge in ijmā‘ does not necessarily indicate one’s agreement, but it may indicate his fear. Furthermore, a challenge might not reach the ‘ulamā’ in their ijmā‘, so that they assume its absence. Ibn H. azm reminds his opponents of the existence of ‘ulamā’ among jinn whose agreement or challenge has never been known to them. Knowing the opinions of all the ‘ulamā’ of Islam is impossible due to their greatness in number, except those of the s.ah.ābah before they scattered to different points outside Madīnah. Like the opinion of the majority of ‘ulamā’, Ibn H. azm also rejects ijmā‘ with one challenge. The idea that a single challenge must be shudhūdh is

rejected by Ibn H. azm, for the truth might be with the single challenger. The shudhūdh which is intended in the h.adīth cited by his opponents, if that h.adīth should be accepted, is understood by him to be “disagreeing with the truth.” But he doubts the soundness of that h.adīth as well as another h.adīth which orders the believers to follow the jamā‘ah cited by his opponents. However, he contends that the jamā‘ah intended in the h.adīth is jamā‘atu’l-h.aqq. In its general meaning, jamā‘atu’l-h.aqq denotes the Muslim community as the opposite of the non-Muslim community. In its particular meaning, it means any group among the Muslim community who follow the Qur’ān and h.adīths of the Prophet in contrast to Muslim heretics and those who follow fabricated h.adīths. To what extent is the Z.āhirīsm of Ibn H. azm similar to that of its founder, Abū Sulaymān Dāwūd, is beyond the scope of this study. However, we know that Ibn H. azm follows Dāwūd in rejecting qiyās, ra’y, istih.sān, and taqlīd, and in accepting the ijmā‘ of the s.ah.ābah. This type of ijmā‘ which is considered the third source of Islamic law, is of minor importance. His opponents do not even consider it as ijmā‘, but rather as the nas.s. itself. The dalīl, the fourth source of Islamic law in the Z.āhirī school, is considered by Ibn H. azm’s opponents as qiyās in disguise, although it is also based on nas.s.. In this instance we may say that Ibn H. azm, as a Z.āhirī, sticks to the nas.s. alone. In one of his poems he said: “I will not incline towards any opinion in religion; nay, the Qur’ān and the Sunan [of the Prophet] suffice me,” as we have cited on the front page of this book.

GLOSSARY ‘adālah, honesty, honourable record ‘adl, (pl. ‘udūl), an honest man, a person with an honourable record āh.ād (khabaru’l-wāh.id), a h.adīth (tradition) reported by one chain of authority ah.kām, (sing. h.ukm), laws, legal judgements. ‘ālim (pr. ‘ulamā’), a scholar, a learned man, a savant amīr (pl. umarā’), an emir, a ruler Andalūsia, al-Andalus, Muslim Spain arjah., preponderant asbāb al-nuzūl (sing. sabab al-nuzūl, see below) as.l (pl. us.ūl), basis, principle, theory (of divine law) ‘awām, laymen bāt.in, an inner or secret meaning Bāt.inīyah, seekers of the inner or spiritual meaning of the nas.s.. Bay‘ah, the pledge of allegiance bayt al-māl, public treasury d.a‘īf, weak dalālah, indication dalīl, prove, evidence dhikr, a reminder; it also means remembering and mentioning, which is a technical term for the ritual recitations of the dervishes and their services fād.il (pl. fud.ūl), eminent faqīh (pl. fuqahā’), a jurisprudent, a jurist whose professional interest is in fiqh far‘ (pl. furū ‘), branch, section, positive or substantive law fard., command, an incumbent duty of religion the performance of which is obligatory fatāwá (sing. fatwá, futwá, or futyā), the formal legal opinions of a canon lawyer (in matters of ‘ibādāt and ah.kām) .fatwá (see fatāwá above) fiqh, jurisprudence in Islam fitan, (sing. fitnah), dissension, civil strife, discord fitnah, (see fitan above)

fud.ūl (see.fād.il above) fuqahā’ (see faqīh above) furū‘, (see far‘ above) futwá, (see.fatāwá above) futyā, (see.fatāwá above) h.add, fixed punishment; punishment indicated in the na s. s. h.adīth, news, a story, and finally a technical term for the tradition of what he Prophet said, did, or approved h.ajj, pilgrimage (to Makkah) h.arām, prohibited, forbidden, unlawful, sinful h.ujjah, proof, evidence h.ujjah z.annīyah (probable evidence). h.ukm, (pl. ah.kām), legal judgement, law ‘ibādāt (sing. ‘ibādah), acts of devotion, religious observances ijmā‘, the consensus of the Muslim community ijtihād, independent judgement in a legal question, based upon the interpretation and application of the Qur‘ān and the Sunnah ‘illah, cause, reason Imām, leader. It is used in a general sense, e.g., the leader in prayer, and in the particular sense of a community leader. Among the Shī‘ah the imāms take the place that the caliphs have among the Sunnī Muslims Imāmah, leadership īmān, faith, belief istih.sān, preference, the application of discretion in a legal judgement istithnā’, exception i‘tiqādāt, articles of religious faith or practice Jāhiliyyah, pre-Islamic paganism, (lit. state of ignorance) jamā‘ah (pl. jamā‘āt), group, community jamā‘āt (see jama‘ah above) jamā‘ātu‘l-h.aqq, the community of the truth. It is used by Ibn H. azm in a general sense as the Muslism community, and in the particular sense of the followers of the Qur’ān and the genuine H.adīth jinn, demons, genii, intelligent creatures of air and fire jumhūr, mass jumhūr al-‘ulamā’ , the ‘ulamā’ en masse (in the mass)

kalālah, a deceased person who has neither parents nor children to give his inheritance to khabar, news, report khabar khās.s.ah, a special report khabar al-wāh.id (āh.ād ), a h.adīth reported by one chain of transmitters khabar al-tawātur (mutawātir), a h.adīth handed down by many chains of unimpeachable transmitters khalaf, the tābi‘ūn and other generations khalīfah, caliph khamr, intoxicant, wine, liquor khawās.s., the élite who know the inner meaning of the nas.s. khut.bah, sermon, especially the Friday sermon kitāb, document, message kufr, infidelity kunyah, the name consisting of Abū (Father) or Umm (mother) followed usually by the name of the eldest son or daughter madhhab, a school of law among Sunnī Muslims ma‘dhūr, excused madhmūm, reprehensible mah.mūd, praised ma’jūr, rewarded ma‘lūm bi’l-d.arūrah, known by necessity mamdūh., laudable mandūb, recommended mansūkh, abrogated matn, text, the subject-matter of a h.adīth mawlá, , client minbar, pulpit muh.kamah (pl. muh.kamāt), precise, clear verse of the Qur’ān mujmal, a word which needs explanation taken from another one; what is implied in general terms or expressed by implication mujtahid (pl. mujtahidīn), a legist who exercises ijtihād mujtahidīn, (see mujtahid above) munkar, reprehensible action mutakallimīn (sing. mutakallim), Muslim theologians mutashābihāt (sing. mutashābih), ambiguous verses of the Qur’ān mutawātir, (see khabar al-tawātur above)

nadb, recommending naqd, critique nāsikh, abrogative nas.s., the divine text qād.ī, judge qiyās, analogy, especially in jurisprudence rak‘ah (pl. raka‘āt), unit in prayer, bowing rasūl, messenger ra’y, personal opinion sabab al-nuzūl, the occasion on which the verse was revealed s.ah.ābah, (sing. s.ah.ābī), companions of the Prophet s.ah.ābī, (see s.ah.ābah above) salaf, the first generation of the s.ah.ābah s.alāh, prayer sanad, chain of narration shādhdh, deviating sharī‘ah (pl. sharā’i‘), the canonical law of Islam; the body of regulations which makes up the religious law shaykh, old man, leader of a tribe or a group, master, a title of respect shubhah, judicial error shudhūdh, deviation sirriyyah, detachment Sunnah (pl. sunan), properly a custom or practice, and later narrowed down to the practice of the Prophet or a h.adīth recording the same. Sunnah includes the Prophet’s sayings, deeds and tacit approval. In this respect often synonymous with adīth. Sunnah also means meritorious. sūrah, a chapter or a section of the Qur’ān tābi‘ī (pl. tābi‘īn), a person succeeding the generation of the s.ah.ābah tābi‘ī tābi‘īn, the following of the following generation of the s.ah.ābah tablīgh, conveyance of the message, religious instruction tafsīr, commentary of the Qur’ān t.ā’ifah, group, band, party takhs.īs., specification taqlīd, decision based on the authority of preceding generations ta’wīl, interpretation, inner meaning

tawqīf, the teaching of the Prophet ta‘zīr, discretionary punishment thiqah (thiqāt), reliable authority ‘udūl, (see ‘adl above) ‘ulamā’, (see ‘ālim above) ūlī ’l-amr, those who are in autority umarā’, (see amīr above) ummah, nation, people, party, community ummu’l-walad, a slave-girl who has borne her master a child us.ūl, (see as.l above) uswah, model wājib, obligatory wazīr, vizier, minister wud.ū’, ablution, the lesser cleansing necessary before prayers yaqīn, certitude z.āhir, apparent state of a thing z.akāh, alms tax z.ann, doubt, conjecture, uncertainty (in religion)

APPENDIX THE UMAYYAD DYNASSTY IN ANDALUSIA (138/756-422/1031) !

(1) ‘Abd al-Rah.mān I al-Dākhil (138/756-172/788) |

(2) Hishām I (172/788-180/796) |

(3) Al-H.akam I (180/796-206/822) |

(4) ‘Abd al-Rah.mān II (206/822-238/852) |

(5) Muh.ammad I (238/852-273/886) ________________________________ !

(7) ‘Abd Allāh (275/888-300/912)

(6) Al-Mundhir (273/886-275/888)

Muh.ammad |

(8) ‘Abd al-Rah.mān al-Nās.ir li-Dīn Allāh (300/912-350/961) ______________________________________________________________________ | |

Sulaymān

(9) Al- H.akam III al-

‘Abd al-Malik

‘Abd Allāh

Muntas.ir bi-Allāh (350/961-366/976) |

‘Abd al-Jabbār

(10) Hishām II alMu’ayyid bi-Allāh

Al-H.akam

‘Abd al-Rah.mān

Muh.ammad

(366/976-399/1009) (400/1010-403/1013)

Hishām

(12) Sulaymān alMusta‘īn bi-Allāh

(400/1009-407/1016) _____________________ |

(13) ‘Abd al-Rah.mān IV al-Murt.ad.á

(11) Muh.ammad II al-Mahdī (399/1009-400/1010)

(408/1018-410/1019) (14) ‘Abd al-Rah.mān V

(15) Muh.ammad III al-Mustakfī bi-Allāh

al-Mustaz.hir bi-Allāh (414/1023)

(414/1024-416/1025)

Hishām I Al-Mu‘tadd bi-Allāh Adopted from

(418/1027-422/1031)

1. E.D. Zambaur, Manuel de Généologie et de Chronologie pour l’Histoire de l’Islam (Berlin: Thormann & Goetsch, 1927), pp. 3-4. 2. Stanley Lane-Pole, The Mohammedan Dynasties (Paris: Paul Geuthner, 1925), p. 22.

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