IBN AZM'S
CONCEPT OF IJMĀ‘
By
Dr. Muhammad Amin A. Samad
بسم الله الرحمن الرحيم
و به نستعين
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..
فَقُْلْتُ هَلْ عَيْبُهُمْ لِيْ غَيْرَ أَننَّيِْ لاَ * أَقـُوْلُ بِالرَّأْيِ إِذْ فِـيْ رَأْيِهِم فَـتَنُ
وَ أَنَّنِي مُولَعٌ بِالنَصِّ لـَسْتُ إِلىَ * سِوَاهُ أَنْحُـْو وَلَا فِيْ نَصْرِهِ أَهِـنُ
لَا أَنـْثَنِي نَحْوَ آرَاءٍ يُقَالُ بِهـَا * فِيْ الدِّيْنِ’ بَلْ حَسْبِيَ القُرْآنُ وَالسُّنَنُ
إبن حـزم*)
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
*) سعيد الأفغاني , إبن حزم الأندلسي و رسالته في المفاضلة بين الصحابة (دمشق: المطبعة الهاشمية, ١٣٩٥\١٩٤٠), ص. ١٤٢
TABLE OF CONTENTS
ABSTRACT …………………………………………… iii
RÉSUMÉ ……………………………………………… iv
TABLE OF CONTENTS ………………….…………… vi
ACKNOWLEDGEMENTS ……………………… viii
TRANSLITERATION SYSTEM ……………………… x
INTRODUCTION ………………………………… 1
Endnotes ……………………………………………… 3
Chapter
I. HISTORICAL BACKGROUND ………..…………. 5
A. The Background of Ibn H.azm ………………. 5
1. A Short Synopsis of Ibn H.azm’s Life……… 5
2. Ibn H.azm’s Contact with Religious Scholars …… 7
B. The Problems of the Definitions and
Occurrence of Ijmā‘ …………………………………. 17
1. The Definitions of Ijmā‘ ………………………… 17
2. The Occurrence of Ijmā‘ ……………………………… 25 Endnotes to Chapter I ……………………… 28
II. JUDICIAL BACKGROUND ………………………. 35
A. Ibn H.azm’s View of the Basis of Ijmā‘ ……….. 35
1. Qur’ān……………………………………………….. 41
2. Sunnah ………………………………….. 43
3. Qiyās…….. ……….………..…………………… 52
B. Ibn H.azm ‘s View of the Types of Ijmā‘ ………. 53
1. Ijmā‘ on What is Known in Religion by Necessity … 54
2. Ijmā‘ of the S.ah.ābah …………………………. 55
3. Ijmā‘ of the People of Madīnah ………….… … 63
4. Ijmā‘ where no Challenge is Known………………. 69
5. Ijmā‘ with One Challenge ………………… .. 73
Endnotes to Chapter II……………………………… 82
CONCLUSION …………………………………………… 94
GLOSSARY …………………………………………… 98
APPENDIX ………………………………………… 103
BIBLIOGRAPHY ……………………………………. 104
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.
TRANSLITERATION SYSTEM
The English transliteration for Arabic names and terms followed in this thesis is as follows:
a. Consonants:
ا = a or ’ ب = b ت = t ث = th ج = j ح = خ = kh د = d
ذ =dh ر = r ز = z س = s ش = sh ص = ض = d. ط =
ظ = z. ع = ‘ غ =gh ف = f ق = q ك = k ل = l م = m ن = n هـ = h و = w ي = y ء = ’ (like alif)
b. Vowels:
Short: long:
Fatah: --َ-- = a ـا = ā
Kasrah: --ِ-- = i ـي = ī
D.ammah: --ُ-- = u ـو = ū
c. Tā’ Marbūt.ah: ah, e.g., sūrah (سُـوْرَة)
Tā’ Marbūt.ah in id.āfah: at, e.g., sūrat al-Baqarah (سُـوْرَةُ اْلبَقَـرَة)
d. Alif maqs.ūrah: á, e.g., qad.á (قَضَى) and shūrá (شُوْرَى)
Thursday, February 9, 2012
IBN H.AZM'S CONCEPT OF IJMA'. CHAPTER I. HISTORICAL BACKGROUND
INTRODUCTION
Ibn azm was one of the unique and controversial Muslim scholars in Islamic history. He lived in Andalusia (Muslim Spain) in the 11th 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 grand-father 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 (شُهْرَتُهُ) 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 al-Mans.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 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 al-Rah.mān IV al-Murtad.á, the Umayyad claimant to the caliphate, had been proclaimed caliph of Valencia, and was raising an army against the 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 al-Murtad.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 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 (أَحْكَامُ اْلقُرْآن), and the Qur’ānic exegesis (تَفْسِيْرُ الْقُرْآن) 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 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.s ān, 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 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 (جَرِيْءُ اللِّسَان), 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 al-H.asan al-Ash‘arī (d. 323/935), the founder of the Ash‘arī school of theology. [20] Ibn H.azm asserted in his book al-Fas.l that Abū al-H.asan al-Ash‘arī believed that īmān (faith, belief) was exclusively knowing Allah with one’s heart (َمَعْرِفَةُ اللهِ باِلْقَلْبِ فَقَطْ), 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 (أَهْلُ السُّنَّة), 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 in his time.[26] We are told that his writings were sufficient to be a heavy camel load (وِقْرُ بَعِيْر), [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 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 (إعَادَةُ دَوْلَةٍ إعْتَرَاهَا اْلإنْهِيَار) through moral social consciousness (وَعْيٌ إجْتِمَاعِي أخْلاقِي) .”[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 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:
هُوَ الَّذِي أَنْزَلَ عَلَيْكَ الْكِتَابَ مِنْهُ آيَاتٌ مُحْكَمَاتٌ هُنَّ أُمُّ الْكِتَابِ وَأُخَرُ مُتَشَابِهَاتٌ
فَأَمَّا الَّذِينَ فِي قُلُوبِهِمْ زَيْغٌ فَيَتَّبِعُونَ مَا تَشَابَهَ مِنْهُ ابْتِغَاءَ الْفِتْنَةِ وَابْتِغَاءَ تَأْوِيلِهِ وَمَا يَعْلَمُ تَأْوِيلَهُ
إِلَّا اللَّهُ وَالرَّاسِخُونَ فِي الْعِلْمِ يَقُولُونَ آمَنَّا بِهِ كُلٌّ مِنْ عِنْدِ رَبِّنَا وَمَا يَذَّكَّرُ إِلَّا أُولُو الْأَلْبَاب.
(آل عمران ٣: ٧)
He it is He Who hath revealed unto thee
(Muhammad) the Scripture wherein are clear
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:
إِنَّ الَّذِينَ يَكْتُمُونَ مَا أَنْزَلْنَا مِنَ الْبَيِّنَاتِ وَالْهُدَى مِنْ بَعْدِ مَا بَيَّنَّاهُ
لِلنَّاسِ فِي الْكِتَابِ أُولَئِكَ يَلْعَنُهُمُ اللَّهُ وَيَلْعَنُهُمُ اللَّاعِنُونَ
(البقرة ٢: ١٥٩)
“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.
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 al-Kāz.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 (إلهُ اْلمُتَقَابِلَيْنِ وَخَالِقُ الْخَصْمَيْنِ وَالْحَاكِمُ بَيْنَ اْلمُتَضَادَّيْن). [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 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 (الفَتَاوَى اْلمُغْرِضَة) 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, 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 al-Rah.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(مَجَاز) to the abode of eternity, so it is true
that there is no benefit (فَائِدَة) in this world and of being
in it, except [in] knowing what Allah the Almighty
has ordered us, teaching it to the ignorant ones
(أَهْلُ الْجَهْل) 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:
وَذِي عَذَلٍ فِيمَنْ سَبَانِيَ حُسْنُهُ * يُطِيْلُ مَلامِيْ فِي اْلهَوَى وَ يَقُوْلُ
أَفِيْ حُسْنِ وَجْهٍ لاحَ لَمْ تَرَ غَيْرَه * وَ لَمْ تَدْرِ كَيْفَ الْجِسْمُ أَنْتَ قَـتِيلُ
فَقُلْتُ لَهُ أَسْرَفْـتَ فِي الَّلوْمِ ظَالِمًا * وَ عِنْدَي رَدٌّ لَوْ أَرَدْتَ طَوِيْـلُ
ألمْ تَرَ أَنـِي ظَاهِـرِيّ وَ أَنَّـِنيْ * عَلَى مَا بَدَا حَتَّى يَقُوْمَ دَلِيْـلُ
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.
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.”أَجْمَعْتُ النُّهَب means “I collected the camels together (taken as booty).” The Arabic idiom فَلاة مجمعَة (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”. أَجْمَعْتُ اْلأَمْر means “I decide (determine) upon the affair.” It is in this meaning that it is mentioned in the Qur’ān, فَأَجْمِعُوا أَمْرَكُمْ وَشُرَكَاءَكُمْ (يونس ١٠ : ٧١) 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 (يُجْمِع) 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 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 (إجْمَاع نَقْلِي). [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] (فِي اْلحَضَر); 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
(كُلِّفَ اْلبُرْهَان عَلَى مَا يَدَّعِيْ) and there is no
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, 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 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
(جُمْلَةُ الزَّكَاة). 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 (اْلمَعْلُوْمُ باِلضَّرُوْرة). This is also the opinion of al-Shāfi‘ī who maintained that there was ijmā‘ in several ordinance (فَرَائِض) which could not be unknown to Muslims, so that if we said that people agreed upon a 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 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 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 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 (كُلُّ قَوْلٍ قَامَتْ حُجَّتُهُ حَتّى قَوْلُ اْلوَاحِد)”. [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 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, al-T.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 known, it is accepted as h.ujjah, while others are disregarded. Ijmā‘ is h.ujjah because it embodies the opinion of the imām which is itself h.ujjah.[84] Al-T.ūsī maintains that if time is supposed to be free from an infalible imām, ijmā‘ will not become h.ujjah, because there is no dalīl indicating that it is h.ujjah.[85]
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(سُنَّةٌ مَقْطُوْعٌ بِهَا) 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]
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 (مُوْجِبٌ لِلْعِلْم). 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]
1. 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.[91] Outside 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 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 opinion (مِنْ جِهَةِ الرَّأْيِ), 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(لاَ يَصِحُّ التَّعَلُّقُ بِهَا) , because they are akhbār āh.ād (sing. khabar wāh.id, h.adīths reported by one chain of authority) which do not necessitate knowing it (لَا يُوْجِبُ عِلْمًا) . [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 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 al-T.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.
Endnotes to Chapter I
1Al-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.
2Kunyah is the name consisting of Abū (father) or Umm (mother) followed by the name of the eldest son or daughter.
3Abū Zahrah, Ibn H.azm, pp. 26-27 quoting Ibn H.azm, T.ūq al-H...amāmah (Cairo: N.p., n.d.), p. 50.
4Ah.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).
5C. 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.
6Ibid
7Ibid.
8Ibid.
9It 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: al-Turāth 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.
10H. 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 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.”
11Abū 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.
12Abū Zahrah, Ibn H.azm, p. 82.
13Ibid., p. 36.
14Ibid., 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”).
15A. L. Sharārah, Ibn H.azm al-Rā’id, p. 65
16O. A. Farrukh, “Z.āhirism,” pp. 176-7.
17R. Arnaldez, “Ibn H.azm,” E.I.2, p. 795.
18Ibn H.azm, Ih.kām, vol. 1, pp. 89-90. See also ibid., p. 160; vol. 4, p. 531.
19The 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.
20Al-Subkī, T.abaqāt al-Shāfi‘iyyah al-Kubrá, 1st ed. (N.p.: al-Mat.ba‘ah al-Mis.riyyah, n.d.), vol. 1, p. 43. (Hereafter referred to as T.abaqāt).
21Ibid.; 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).
22Al-Subkī, T.abaqāt, vol. 1, p. 43.
23Al-Dhahabī, Tadhkirat, vol. 3, p. 1154.
24A certain Abū ’l-‘Abbās ibn al-‘Arīf said: “The tongue of Ibn H.azm and the sword of al- H.ajjāj were two brothers (كَانَ لِسَانُ ابْنِ حَزْم وَ سَيْفُ الْحَجَّاجِ شَقِيْقَيْن), see al-Dhahabī, 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.
25O. A. Farrukh, “Z.āhirism,” p. 286.
26Though 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.
27Al-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.
28Ibid., p. 1152.
29The terms often used by Ibn H.azm in raising questions were: فَإِنْ قَالُوْا…قُلْنَا… (“if they say… we say…”); for examples, see Ih.kām, vol. 4, pp. 532 line 5, 533 line 9, and 544 line 18), فَإِنْ قَالُوْا…قِيْلَ لَهُمْ… (“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 4-5 and 6), فَإِنْ قَالَ…قِيْلَ لَهُ… (“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 13-14. 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 14-5, in which he used the term فَإِنْ قَالُوْا…قِيْلَ لَهُمْ… (“if they say … it is said to them…). (Hereafter referred to as ‘Uddat al-Us.ūl).
30A. L. Sharārah, Ibn H.azm al-Rā’id, p. 72.
31Abū 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.
32Ibid.
33Yet, 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.
34A. L. Sharārah, Ibn H.azm al-Rā’id, p. 64.
35Ibid.
36Ibid., p. 65.
37Ibn H.azm, Fas.l, vol. 2, p. 16.
38Qur’ān, 3:7
39Ibid. 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.”
40Ibid. 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.
41The other verse referred to by Ibn H.azm is: وَإِذْ أَخَذَ اللَّهُ مِيثَاقَ الَّذِينَ أُوتُوا الْكِتَابَ لَتُبَيِّنُنَّهُ لِلنَّاسِ وَلَا تَكْتُمُونَهُ... (آل عمران ٣ : ١٨٧) 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).
42Ibn H.azm, Ih.kām, vol. 4, pp. 492-493.
43A. L. Sharārah, Ibn H.azm al-Rā’id, p. 73. O. A. Farrukh, “Z.āhirism,” p. 275.
44Al-Shahrastānī, al-Milal wa ’l-Nih.al (in the margin of Ibn H.azm’s Fal), vol. 2, p. 29. B. Carra de Vaux, “Bāt.iniyya,” S.E.I., pp. 60-61.
45For further details, see M.G.S. Hodgson, “Bāt.iniyya,” E.I.2, vol. 1, pp. 1098-1100.
46O. A. Farrukh, “Z.āhirism,” p. 275.
47For 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).
48O. A. Farrukh, “Z.āhirism,” p. 275; A. L. Sharārah, Ibn H.azm al-Rā’id, p. 73.
49Ibn 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.
50Ibid.; for further details, see A. L. Sharārah, Ibn H.azm al-Rā’id, pp. 65-67.
51Ibn H.azm, Ih.kām, vol. 1, p. 8.
52Ibn 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” (حُسْنُهُ) instead of “her beauty” (حُسْنُهَا).
53This 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.
54Abū ’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-‘.
55M.M. Pickthall puts it in the verse 72, for he makes الر at the beginning of the su-rah (chapter) as one verse, whereas it is part of a verse, i.e., verse no. 1.
56Ibn 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-‘.
57Ibid.
58Ibn H.azm, Ih.kām, vol.1, p. 43.
59Camille 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).
60Ibn H.azm, Ih.kām, vol.1, p. 43
61Idem, 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.
62Ahmad Hasan, “Ijmā‘, an Integrating Force in the Muslim Community,” Islamic Studies 6 (Dec. 1967), p. 392. (Hereafter referred to as “Integrating Force”).
63Mohamad 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).
64See 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.
65This 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.
66See also Ibn H.azm’s view on the nature of ijmā‘ (صِفَةُ الإجْمَاع) 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).
67Idem, Ih.kām, vol. 4, pp. 510-511; see also ibid., p. 529.
68Muh.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.
69Perhaps the words يَقَعُ ذَلِكَ اْلجَمَاعَة here should be read يَقَعُ ذَلِكَ لِجَمَاعَة as we have translated above to give sense to the sentence. Ibn H.azm, Ih.kām, vol.4, p. 511.
70Ibid. See also ibid., pp. 530-531. The words عَلِمَه و فَعَلَه on p. 530 line 21 are inverted and should be read فَعَلَه و عَلِمَه to suit the definition given on p. 511.
71See 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..
72Muh.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 الإعْتِبَار on line 13 of this page is misprinted and should be readلَا إِعْتِبَار to suit the meaning of the sentence.
74This ijmā‘, is called ijmā‘ us.ūlī. Camille Mansosur, Autorité, p. 67.
75Ibn H.azm, Ih.kām, vol.7, p. 982; Badrān Abū al-‘Aynayn Badrān, Us.ūl al-Fiqh ([Egypt]: Dār al-Ma‘ārif, 1965), p. 216.
76In 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.
77The 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.
78Al-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.
79Al-Ghazālī, al-Mustas.fá min ‘Ilm al-Us.ūl, 1st ed. (Cairo: al-Maktabah al-Tijāriyyah 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).
80Abū 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.
81Al-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.
82Ibid., 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. .
83Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64.
84Ibid.
85For further details on al-T.ūsī’s argument in refuting the dalīls presented by his opponents among the Sunnī jurists for theحُجِّيَّةُ الإجْمَاع (the authority of ijmā‘), see ibid., pp. 64-75.
86Ibid., pp. 75-76; for further details, see ibid., pp. 77 ff.
87S.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 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.
88For further details on al-T.ūsī’s argument in refuting qiyās, see‘Uddat al-Us.ūl, vol. 2, pp. 89 ff.
89Ibid., vol. 1, pp. 41-42.
90See n. 83 above.
91Ibn 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‘a h. Ibid.
92Ibid.
93Ibid., vol. 4, pp. 502-503.
94The 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 al-Tijārīyah 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)
95Bihārī, Musallam, vol. 2, p. 211. Ibn al-Humām (d. 861/1457) asserts that al-Naz.z.ām rejects the possibility of the occurrence of ijmā‘, see Kamāl al-Dīn ibn al-Humām, 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 al-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.
97For 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.
98bid., pp. 74-75; cf. below, pp. 72-74
99Dr. Mukhtār al-Qād.ī, al-Ra’y, pp. 173-174.
Ibn azm was one of the unique and controversial Muslim scholars in Islamic history. He lived in Andalusia (Muslim Spain) in the 11th 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 grand-father 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 (شُهْرَتُهُ) 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 al-Mans.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 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 al-Rah.mān IV al-Murtad.á, the Umayyad claimant to the caliphate, had been proclaimed caliph of Valencia, and was raising an army against the 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 al-Murtad.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 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 (أَحْكَامُ اْلقُرْآن), and the Qur’ānic exegesis (تَفْسِيْرُ الْقُرْآن) 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 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.s ān, 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 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 (جَرِيْءُ اللِّسَان), 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 al-H.asan al-Ash‘arī (d. 323/935), the founder of the Ash‘arī school of theology. [20] Ibn H.azm asserted in his book al-Fas.l that Abū al-H.asan al-Ash‘arī believed that īmān (faith, belief) was exclusively knowing Allah with one’s heart (َمَعْرِفَةُ اللهِ باِلْقَلْبِ فَقَطْ), 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 (أَهْلُ السُّنَّة), 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 in his time.[26] We are told that his writings were sufficient to be a heavy camel load (وِقْرُ بَعِيْر), [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 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 (إعَادَةُ دَوْلَةٍ إعْتَرَاهَا اْلإنْهِيَار) through moral social consciousness (وَعْيٌ إجْتِمَاعِي أخْلاقِي) .”[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 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:
هُوَ الَّذِي أَنْزَلَ عَلَيْكَ الْكِتَابَ مِنْهُ آيَاتٌ مُحْكَمَاتٌ هُنَّ أُمُّ الْكِتَابِ وَأُخَرُ مُتَشَابِهَاتٌ
فَأَمَّا الَّذِينَ فِي قُلُوبِهِمْ زَيْغٌ فَيَتَّبِعُونَ مَا تَشَابَهَ مِنْهُ ابْتِغَاءَ الْفِتْنَةِ وَابْتِغَاءَ تَأْوِيلِهِ وَمَا يَعْلَمُ تَأْوِيلَهُ
إِلَّا اللَّهُ وَالرَّاسِخُونَ فِي الْعِلْمِ يَقُولُونَ آمَنَّا بِهِ كُلٌّ مِنْ عِنْدِ رَبِّنَا وَمَا يَذَّكَّرُ إِلَّا أُولُو الْأَلْبَاب.
(آل عمران ٣: ٧)
He it is He Who hath revealed unto thee
(Muhammad) the Scripture wherein are clear
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:
إِنَّ الَّذِينَ يَكْتُمُونَ مَا أَنْزَلْنَا مِنَ الْبَيِّنَاتِ وَالْهُدَى مِنْ بَعْدِ مَا بَيَّنَّاهُ
لِلنَّاسِ فِي الْكِتَابِ أُولَئِكَ يَلْعَنُهُمُ اللَّهُ وَيَلْعَنُهُمُ اللَّاعِنُونَ
(البقرة ٢: ١٥٩)
“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.
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 al-Kāz.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 (إلهُ اْلمُتَقَابِلَيْنِ وَخَالِقُ الْخَصْمَيْنِ وَالْحَاكِمُ بَيْنَ اْلمُتَضَادَّيْن). [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 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 (الفَتَاوَى اْلمُغْرِضَة) 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, 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 al-Rah.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(مَجَاز) to the abode of eternity, so it is true
that there is no benefit (فَائِدَة) in this world and of being
in it, except [in] knowing what Allah the Almighty
has ordered us, teaching it to the ignorant ones
(أَهْلُ الْجَهْل) 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:
وَذِي عَذَلٍ فِيمَنْ سَبَانِيَ حُسْنُهُ * يُطِيْلُ مَلامِيْ فِي اْلهَوَى وَ يَقُوْلُ
أَفِيْ حُسْنِ وَجْهٍ لاحَ لَمْ تَرَ غَيْرَه * وَ لَمْ تَدْرِ كَيْفَ الْجِسْمُ أَنْتَ قَـتِيلُ
فَقُلْتُ لَهُ أَسْرَفْـتَ فِي الَّلوْمِ ظَالِمًا * وَ عِنْدَي رَدٌّ لَوْ أَرَدْتَ طَوِيْـلُ
ألمْ تَرَ أَنـِي ظَاهِـرِيّ وَ أَنَّـِنيْ * عَلَى مَا بَدَا حَتَّى يَقُوْمَ دَلِيْـلُ
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.
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.”أَجْمَعْتُ النُّهَب means “I collected the camels together (taken as booty).” The Arabic idiom فَلاة مجمعَة (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”. أَجْمَعْتُ اْلأَمْر means “I decide (determine) upon the affair.” It is in this meaning that it is mentioned in the Qur’ān, فَأَجْمِعُوا أَمْرَكُمْ وَشُرَكَاءَكُمْ (يونس ١٠ : ٧١) 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 (يُجْمِع) 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 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 (إجْمَاع نَقْلِي). [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] (فِي اْلحَضَر); 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
(كُلِّفَ اْلبُرْهَان عَلَى مَا يَدَّعِيْ) and there is no
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, 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 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
(جُمْلَةُ الزَّكَاة). 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 (اْلمَعْلُوْمُ باِلضَّرُوْرة). This is also the opinion of al-Shāfi‘ī who maintained that there was ijmā‘ in several ordinance (فَرَائِض) which could not be unknown to Muslims, so that if we said that people agreed upon a 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 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 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 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 (كُلُّ قَوْلٍ قَامَتْ حُجَّتُهُ حَتّى قَوْلُ اْلوَاحِد)”. [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 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, al-T.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 known, it is accepted as h.ujjah, while others are disregarded. Ijmā‘ is h.ujjah because it embodies the opinion of the imām which is itself h.ujjah.[84] Al-T.ūsī maintains that if time is supposed to be free from an infalible imām, ijmā‘ will not become h.ujjah, because there is no dalīl indicating that it is h.ujjah.[85]
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(سُنَّةٌ مَقْطُوْعٌ بِهَا) 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]
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 (مُوْجِبٌ لِلْعِلْم). 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]
1. 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.[91] Outside 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 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 opinion (مِنْ جِهَةِ الرَّأْيِ), 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(لاَ يَصِحُّ التَّعَلُّقُ بِهَا) , because they are akhbār āh.ād (sing. khabar wāh.id, h.adīths reported by one chain of authority) which do not necessitate knowing it (لَا يُوْجِبُ عِلْمًا) . [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 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 al-T.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.
Endnotes to Chapter I
1Al-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.
2Kunyah is the name consisting of Abū (father) or Umm (mother) followed by the name of the eldest son or daughter.
3Abū Zahrah, Ibn H.azm, pp. 26-27 quoting Ibn H.azm, T.ūq al-H...amāmah (Cairo: N.p., n.d.), p. 50.
4Ah.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).
5C. 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.
6Ibid
7Ibid.
8Ibid.
9It 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: al-Turāth 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.
10H. 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 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.”
11Abū 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.
12Abū Zahrah, Ibn H.azm, p. 82.
13Ibid., p. 36.
14Ibid., 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”).
15A. L. Sharārah, Ibn H.azm al-Rā’id, p. 65
16O. A. Farrukh, “Z.āhirism,” pp. 176-7.
17R. Arnaldez, “Ibn H.azm,” E.I.2, p. 795.
18Ibn H.azm, Ih.kām, vol. 1, pp. 89-90. See also ibid., p. 160; vol. 4, p. 531.
19The 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.
20Al-Subkī, T.abaqāt al-Shāfi‘iyyah al-Kubrá, 1st ed. (N.p.: al-Mat.ba‘ah al-Mis.riyyah, n.d.), vol. 1, p. 43. (Hereafter referred to as T.abaqāt).
21Ibid.; 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).
22Al-Subkī, T.abaqāt, vol. 1, p. 43.
23Al-Dhahabī, Tadhkirat, vol. 3, p. 1154.
24A certain Abū ’l-‘Abbās ibn al-‘Arīf said: “The tongue of Ibn H.azm and the sword of al- H.ajjāj were two brothers (كَانَ لِسَانُ ابْنِ حَزْم وَ سَيْفُ الْحَجَّاجِ شَقِيْقَيْن), see al-Dhahabī, 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.
25O. A. Farrukh, “Z.āhirism,” p. 286.
26Though 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.
27Al-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.
28Ibid., p. 1152.
29The terms often used by Ibn H.azm in raising questions were: فَإِنْ قَالُوْا…قُلْنَا… (“if they say… we say…”); for examples, see Ih.kām, vol. 4, pp. 532 line 5, 533 line 9, and 544 line 18), فَإِنْ قَالُوْا…قِيْلَ لَهُمْ… (“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 4-5 and 6), فَإِنْ قَالَ…قِيْلَ لَهُ… (“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 13-14. 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 14-5, in which he used the term فَإِنْ قَالُوْا…قِيْلَ لَهُمْ… (“if they say … it is said to them…). (Hereafter referred to as ‘Uddat al-Us.ūl).
30A. L. Sharārah, Ibn H.azm al-Rā’id, p. 72.
31Abū 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.
32Ibid.
33Yet, 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.
34A. L. Sharārah, Ibn H.azm al-Rā’id, p. 64.
35Ibid.
36Ibid., p. 65.
37Ibn H.azm, Fas.l, vol. 2, p. 16.
38Qur’ān, 3:7
39Ibid. 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.”
40Ibid. 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.
41The other verse referred to by Ibn H.azm is: وَإِذْ أَخَذَ اللَّهُ مِيثَاقَ الَّذِينَ أُوتُوا الْكِتَابَ لَتُبَيِّنُنَّهُ لِلنَّاسِ وَلَا تَكْتُمُونَهُ... (آل عمران ٣ : ١٨٧) 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).
42Ibn H.azm, Ih.kām, vol. 4, pp. 492-493.
43A. L. Sharārah, Ibn H.azm al-Rā’id, p. 73. O. A. Farrukh, “Z.āhirism,” p. 275.
44Al-Shahrastānī, al-Milal wa ’l-Nih.al (in the margin of Ibn H.azm’s Fal), vol. 2, p. 29. B. Carra de Vaux, “Bāt.iniyya,” S.E.I., pp. 60-61.
45For further details, see M.G.S. Hodgson, “Bāt.iniyya,” E.I.2, vol. 1, pp. 1098-1100.
46O. A. Farrukh, “Z.āhirism,” p. 275.
47For 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).
48O. A. Farrukh, “Z.āhirism,” p. 275; A. L. Sharārah, Ibn H.azm al-Rā’id, p. 73.
49Ibn 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.
50Ibid.; for further details, see A. L. Sharārah, Ibn H.azm al-Rā’id, pp. 65-67.
51Ibn H.azm, Ih.kām, vol. 1, p. 8.
52Ibn 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” (حُسْنُهُ) instead of “her beauty” (حُسْنُهَا).
53This 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.
54Abū ’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-‘.
55M.M. Pickthall puts it in the verse 72, for he makes الر at the beginning of the su-rah (chapter) as one verse, whereas it is part of a verse, i.e., verse no. 1.
56Ibn 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-‘.
57Ibid.
58Ibn H.azm, Ih.kām, vol.1, p. 43.
59Camille 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).
60Ibn H.azm, Ih.kām, vol.1, p. 43
61Idem, 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.
62Ahmad Hasan, “Ijmā‘, an Integrating Force in the Muslim Community,” Islamic Studies 6 (Dec. 1967), p. 392. (Hereafter referred to as “Integrating Force”).
63Mohamad 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).
64See 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.
65This 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.
66See also Ibn H.azm’s view on the nature of ijmā‘ (صِفَةُ الإجْمَاع) 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).
67Idem, Ih.kām, vol. 4, pp. 510-511; see also ibid., p. 529.
68Muh.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.
69Perhaps the words يَقَعُ ذَلِكَ اْلجَمَاعَة here should be read يَقَعُ ذَلِكَ لِجَمَاعَة as we have translated above to give sense to the sentence. Ibn H.azm, Ih.kām, vol.4, p. 511.
70Ibid. See also ibid., pp. 530-531. The words عَلِمَه و فَعَلَه on p. 530 line 21 are inverted and should be read فَعَلَه و عَلِمَه to suit the definition given on p. 511.
71See 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..
72Muh.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 الإعْتِبَار on line 13 of this page is misprinted and should be readلَا إِعْتِبَار to suit the meaning of the sentence.
74This ijmā‘, is called ijmā‘ us.ūlī. Camille Mansosur, Autorité, p. 67.
75Ibn H.azm, Ih.kām, vol.7, p. 982; Badrān Abū al-‘Aynayn Badrān, Us.ūl al-Fiqh ([Egypt]: Dār al-Ma‘ārif, 1965), p. 216.
76In 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.
77The 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.
78Al-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.
79Al-Ghazālī, al-Mustas.fá min ‘Ilm al-Us.ūl, 1st ed. (Cairo: al-Maktabah al-Tijāriyyah 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).
80Abū 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.
81Al-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.
82Ibid., 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. .
83Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64.
84Ibid.
85For further details on al-T.ūsī’s argument in refuting the dalīls presented by his opponents among the Sunnī jurists for theحُجِّيَّةُ الإجْمَاع (the authority of ijmā‘), see ibid., pp. 64-75.
86Ibid., pp. 75-76; for further details, see ibid., pp. 77 ff.
87S.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 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.
88For further details on al-T.ūsī’s argument in refuting qiyās, see‘Uddat al-Us.ūl, vol. 2, pp. 89 ff.
89Ibid., vol. 1, pp. 41-42.
90See n. 83 above.
91Ibn 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‘a h. Ibid.
92Ibid.
93Ibid., vol. 4, pp. 502-503.
94The 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 al-Tijārīyah 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)
95Bihārī, Musallam, vol. 2, p. 211. Ibn al-Humām (d. 861/1457) asserts that al-Naz.z.ām rejects the possibility of the occurrence of ijmā‘, see Kamāl al-Dīn ibn al-Humām, 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 al-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.
97For 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.
98bid., pp. 74-75; cf. below, pp. 72-74
99Dr. Mukhtār al-Qād.ī, al-Ra’y, pp. 173-174.
Wednesday, February 8, 2012
IBN H.AZM'S CONCEPT OF IJMA'. CHAPTER II. JUDICIAL BACKGROUND
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‘ (سَنَدُ الإجْمَاع) 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. mujtahidīn).
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.[1] 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‘ (حُجِّيَّة ُالإجْمَاع), 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.,
وَمَنْ يُشَاقِقِ الرَّسُولَ مِنْ بَعْدِ مَا تَبَيَّنَ لَهُ الْهُدَى وَيَتَّبِعْ غَيْرَ سَبِيلِ الْمُؤْمِنِينَ
نُوَلِّهِ مَا تَوَلَّى وَنُصْلِهِ جَهَنَّمَ وَسَاءَتْ مَصِيرًا
(النساء ٤ :١١٥)
“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 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.[2]
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. [3]
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:
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ
فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ...
(النساء ٤ :٥٩)
“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).
Once more al-Ghazālī saw the verse as evidence to indicate that the unanimity of the community is right.[4] 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.[5] 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 al-amr, 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.” [6]
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..[7]
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 (مَنْصُوْص) from the Prophet so that disagreeing with it would mean disagreeing with the Prophet, as disagreeing with him would mean disagreeing with Allah. [8] If we go back to the sabab al-nuzūl (the 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.[9]
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; [10]therefore, according to Ibn H.azm, the ostensible meaning of the verse (ظَاهِرِيَّةُ الآيَة) 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‘.[11]
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 al-amr) 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 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 (إنَّمَا الطَّاعَةُ فِي ْالمَعْرُوْف)” .[12] 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. [13]
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 al-rasūl in the verse mentioned above.[14] 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, إِنْ أَتَّبِعُ إِلَّا مَا يُوحَى إِلَيَّ... (الأنعام ٦ : ٥٠) “I follow only what was revealed to me” (Qur’ān 6:50)[15] and those in which Allah informs us that the Prophet does not speak of his own desires, such as, وَمَا يَنْطِقُ عَنِ الْهَوَى. إِنْ هُوَ إِلَّا وَحْيٌ يُوحَى (النجم ٥٣ : ٣-٤) “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.[16]
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 al-rasūl 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.[17]
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.[18] If we 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:
لَا تَزَالُ طَائِفَةٌ مِنْ أُمَّتِي ظَاهِرِينَ عَلَى الْحَقِّ لَا يَضُرُّهُمْ
مَنْ خَذَلَهُمْ حَتَّى يَأْتِيَ أَمْرُ اللَّهِ
“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." [19]
(Reported by Muslim. Similar hadīths
are also reported by al-Tirmidhī,
Ibn Mājah, and Amad)
According to Ibn H.azm’s opponents this h.adīth indicates the justification of ijmā‘. On the contrary, Ibn H.azm contends that the 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.[20]
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. [21] 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 (وَحْيٌ مُثَبَّتٌ فِي اْلمُصْحَف) ” [22]also “revelation recited and arranged in such a way to account for its miraculous structure (وَحْيٌ مَتْلُوٌّ مُؤَلَّفٌ تَأْلِيْفًا مُعْجِزَ النِّظَام) ”.[23] 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 azm's definition “is a word which needs explanation taken from another one.”[24] 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.[25] But the required explanation is available in the Sunnah.[26]
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 mutashābihāt[27] 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 الم (alif, lām mīm) at the beginning of sūrat al-Baqarah (chapter 2), and Allah’s oaths in the Qur’ān, like وَالضُّحَى وَاللَّيْلِ إِذَا سَجَى (الضُّحَى ٩٣ : ١-٢) “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).[28] According to Ibn H.azm, seeking and following the ta’wīl of what he calls mutashābihāt is forbidden. [29] 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 (الْحرَامُ البَيِّن) and obviously permitted ((الْحَلاَلُ الْبَيِّن, seeking their interpretations is enjoined upon Muslims in order to understand their religion.[30]
The explanation (بيَان) of the mujmal verses in the Qur’ān is either: commentary(تَفْسِيْر), exception (إسْتِثْنَاء), or specification (تَخْصِيْص).[31] 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). [32]
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.[33]
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 ‘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. [34] The verse runs as follows:
... وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ
وَاحِدٍ مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ
يُوصَى بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ وَصِيَّةً مِنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَلِيمٌ.
(النساء ٤ :١٢)
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 summer [35] which is as follows:
يَسْتَفْتُونَكَ قُلِ اللَّهُ يُفْتِيكُمْ فِي الْكَلَالَةِ إِنِ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ
مَا تَرَكَ وَهُوَ يَرِثُهَا إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ وَإِنْ كَانُوا إِخْوَةً
رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ يُبَيِّنُ اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ
(النساء ٤ : ١٧٦)
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
the share of two females. Allah expounded unto you,
so that ye err not. Allah is Knower of all things.
(Qur’ān 4:176).
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: قُلْ إِنَّمَا أُنْذِرُكُمْ بِالْوَحْيِ... (الأنبياء ٢١ : ٤٥) “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: إِنَّا نَحْنُ نَزَّلْنَا الذِّكْرَ وَإِنَّا لَهُ لَحَافِظُونَ (الحجر ١٥: ٩) “Lo! We, even We, reveal the Reminder, and lo! We verily are is Guardian.” (Qur’ān 15:9).[36] But unlike the Qur’ān, the Sunnah from which the religious laws appear is revelation not established in the Scripture (وَحْيٌ غَيْرُ مُثَبَّتٍ فِي ْالمُصْحَف) , [37] 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.[38] 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 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.
a.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 (مَا نَقَلَهُ كَافَةٌ بَعْدَ كَافَةٍ حَتّى تَبْلُغَ بِهِ النَّبِيّ). 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.[39]
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.[40]
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 it is not reasonable to make a distinction between a h.adīth reported by seventy people and that by sixty-nine, so to speak. 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 (التَّوَاطُؤُ عَلَى اْلكَذِب) 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.[42]
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 a h.adīth if there were any motive behind the act of lying; for example, when the people involved were offered worldly matters (رُغِبُوا) or frightened (رُهِبُوْا). 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 ضَرُوْرَةُ الْحِسّ (essential grasping of something by means of sense power).[43]
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 the h.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, marriage, and many others. In all these examples, the number of transmitters involved is two or more.[44]
b. 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 (وَجَبَ اْلعَمَلُ بِهِ وَ وَجَبَ اْلعِلْمُ بِصِحَّتِهِ أَيْضًا). 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,[45] 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.[46]
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.[47]
Ibn H.azm reproaches those who maintain that the sound khabar al-wāh.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 (جمُْهُوْرُ اْلَمالِكِيِّيْن), all Mu‘tazilīs and Khārijīs.[48] 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 (لَا يُوْجِبُ عِلْمَ اْلَيَقِيْن), 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..[49] 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. [50] 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.[51]
Ibn H.azm’s argument regarding the reliability of the khabar al-wāh.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. [52] His argument that khabar al-wāh.id is also 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. [53]
Ibn H.azm’s first proof for the reliability of khabar al-wāh.id is the following verse of the Qur’ān:
... فَلَوْلَا نَفَرَ مِنْ كُلِّ فِرْقَةٍ مِنْهُمْ طَائِفَةٌ لِيَتَفَقَّهُوا فِي الدِّينِ
وَلِيُنْذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ
(التوبة ٩ : ١٢٢)
“…. 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.[54] 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. [55]
Al- T.ūsī [56] gives us a different view on the verse in question. He maintains that the verse does not indicate that the Muslims should accept 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 (أَدِلَّّةُ اْلعَقْل) . 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 (إلاّ دَلَّّ اْلعِلْمُ الْمُعْجِزُ عَلىَ صِدْقِه). According to al-T.ūsī, the khabar al-wāh.id which necessitates knowledge(مُوْجِبٌ لِلْعِلْم) 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.[57]
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.[58] 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.[59]
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:
وَجَاءَ رَجُلٌ مِنْ أَقْصَى الْمَدِينَةِ يَسْعَى قَالَ يَا مُوسَى إِنَّ الْمَلَأَ يَأْتَمِرُونَ
بِكَ لِيَقْتُلُوكَ فَاخْرُجْ إِنِّي لَكَ مِنَ النَّاصِحِينَ. فَخَرَجَ مِنْهَا خَائِفًا يَتَرَقَّبُ ...
(القصص ٢٨ : ٢٠-٢١)
“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:
فَجَاءَتْهُ إِحْدَاهُمَا تَمْشِي عَلَى اسْتِحْيَاءٍ قَالَتْ
إِنَّ أَبِي يَدْعُوكَ لِيَجْزِيَكَ أَجْرَ مَا سَقَيْتَ لَنَا...
(القصص ٢٨ :٢٥)
“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'…”
(Qur’ān 28:25).[60]
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.[61] 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. [62] 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‘,[63] 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.[64] 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. [65]
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:
a.Qawl (the statement) of the Prophet
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 al-nadb (recommending). [66] 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.
b. 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. [67] 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.[68]
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.[69]
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:
لَقَدْ كَانَ لَكُمْ فِي رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَةٌ لِمَنْ
كَانَ يَرْجُو اللَّهَ وَالْيَوْمَ الْآخِرَ وَذَكَرَ اللَّهَ كَثِيرًا.
(الأحزاب ٣٣ : ٢١)
“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 لَقَدْ كَانَ لَكُمْ . Ibn H.azm says further that if we say هذَا لَكَ (this is for you), you may take it or leave it, while if we say عَلَيْكَ هَذَا (this is [incumbent] upon you) you must do it. [70] 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. [71] 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.[72]
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 (آكَدُ مِنْ أَوَامِرِه) , while some Mālikīs and H...anafīs consider them like his orders (الأَفْعَالُ كَاْلأَوَامِر). 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.[73]
c. 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).[74] 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. [75]
3. Qiyās
Essentially, Ibn H.azm rejects the idea of qiyās on the ground that an act of this nature is false and prohibited. [76] 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.[77] The proponents of qiyās are all of the Shāfi‘īs, groups among the H.anafīs and Mālikīs, as mentioned by Ibn H.azm.[78] 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.[79] 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),[80] according to him, also nullifies wud.ū’.[81] As a Z.āhirī who refuses qiyās as one of 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’.[82]
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. [83] 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…” [84] Ibn H.azm denies this accusation and says that his dalīl is purely based on nas.s.. [85]
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 al-Maqdis.[86]
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; [87] b) that the application of qiyās is wrong, because it is based on the idea of ‘illah, and Ibn H.azm rejects it.[88]
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 (اْلمَعْلُوْمُ بِالضَّرُوْرَة), 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.
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. (نَصٌّ جَلِيّ) 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.[89] 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. [90] 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.[91] 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‘ (الإجْمَاعُ اْلمَعْلُوْم) . 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.[92]
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 al-Shāfi‘ī[93]. In addition, al-Naz.z.ām, who was notorious for his rejection of the occurrence of ijmā‘ [94] and its validity, is not considered an infidel by Ibn H.azm.[95] 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.[96] This is also the view of the Mu‘tazilī Abū ’l- H.usayn al-Bas.rī, who maintains that the existence of this type of ijmā‘ exempts people from seeking the proof in the nas.s..[97] 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 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. [98] 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. [99] 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 (سَاعَة). 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 al-s.uh.bah relates to anyone with whom somebody has a certain matter and 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. [100] This view of Ibn H.azm is similar to that of Ibn Taymiyyah, Ah.mad ibn H.anbal, and Mālik ibn Anas.[101] On the basis of this argument, Ibn H.azm rejects the view reported by Sa‘īd ibn al-Musayyib [102] 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.[103] 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).[104]
According to Ibn H.azm all of the s.ah.ābah were عُدُوْل (sing. عَدْل, honest people), فاَضِل (eminent) and مِنْ أَهْلِ اْلجَنَّة (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:
مُحَمَّدٌ رَسُولُ اللَّهِ وَالَّذِينَ مَعَهُ أَشِدَّاءُ عَلَى الْكُفَّارِ
رُحَمَاءُ بَيْنَهُمْ تَرَاهُمْ رُكَّعًا سُجَّدًا يَبْتَغُونَ فَضْلًا مِنَ اللَّهِ وَرِضْوَانًا
سِيمَاهُمْ فِي وُجُوهِهِمْ مِنْ أَثَرِ السُّجُودِ ذَلِكَ مَثَلُهُمْ فِي التَّوْرَاةِ وَمَثَلُهُمْ
فِي الْإِنْجِيلِ كَزَرْعٍ أَخْرَجَ شَطْأَهُ فَآزَرَهُ فَاسْتَغْلَظَ فَاسْتَوَى عَلَى سُوقِهِ
يُعْجِبُ الزُّرَّاعَ لِيَغِيظَ بِهِمُ الْكُفَّارَ وَعَدَ اللَّهُ الَّذِينَ آمَنُوا
وَعَمِلُوا الصَّالِحَاتِ مِنْهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا
(الفتح ٤٨ : ٢٩)
“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)
إِنَّ الَّذِينَ سَبَقَتْ لَهُمْ مِنَّا الْحُسْنَى أُولَئِكَ عَنْهَا مُبْعَدُونَ. لَا يَسْمَعُونَ
حَسِيسَهَا وَهُمْ فِي مَا اشْتَهَتْ أَنْفُسُهُمْ خَالِدُونَ. لَا يَحْزُنُهُمُ الْفَزَعُ الْأَكْبَرُ
وَتَتَلَقَّاهُمُ الْمَلَائِكَةُ هَذَا يَوْمُكُمُ الَّذِي كُنْتُمْ تُوعَدُونَ
(الأنبياء ٢١ : ١٠١-١٠٣)
“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)
... لَا يَسْتَوِي مِنْكُمْ مَنْ أَنْفَقَ مِنْ قَبْلِ الْفَتْحِ وَقَاتَلَ أُولَئِكَ أَعْظَمُ دَرَجَةً
مِنَ الَّذِينَ أَنْفَقُوا مِنْ بَعْدُ وَقَاتَلُوا وَكُلًّا وَعَدَ اللَّهُ الْحُسْنَى وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ
(الحديد ٥٧ : ١٠)
“… 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).[105]
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:
دَعُوا لِي أَصْحَابِي، فََلَوْ كَانَ لِأَحَدِكُمْ مِثْلَ أُحُدٍ ذَهَبًا
فَأَنْفَقَهُ فِيْ سَبِيْلِ الله مَا بَلَغَ مُدَّ أَحَدِهِمْ وَلَا نَصِيْفَهُ
“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]. ” [106]
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.[107]
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 al-Bāqillānī 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 certain Qur’ānic verses and h.adīths, among which are those mentioned by Ibn H.azm above. [108]
b. The view of Abū ’l- H.usayn ibn al-Qat.t.ān (d. 359/970), and al-Naz.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 Wahshī who 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 (فِيْ حَيْنِ النَّذَارَةِ وَ اْلمَجِيْءِ بِالْخَبَر), not when he was witnessing what he had reported (لَا فِيْ حِيْنِ مُشَاهَدَةِ مَا أَخْبَرَ بِه). 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 known.[109] 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.[110]
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 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.[111]
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 (تَقْدِيْمُ أَخْذِ اْلقَوَد) 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.[112]
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”,[113] namely, that they are “in constant contact with the Prophet and fully aware of his intentions.” [114] 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.[115] 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.[116] One of these examples cited by 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). [117] 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 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.[118] 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‘.[119]
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 al-Rah.mān ibn ‘Awf, another s.ah.ābī says the minimum h.add (fixed punishment) is eighty lashes. [120] 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 lashes for every cup drunk by the intoxicant drinker. [121] 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. [122] 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.[123]
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.[124]
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 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(نَقَلَهُ ثِقَةٌ عَنْ ثِقَةٍ) , 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. [125]
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‘ī [126] and al-Layth ibn Sa‘d [127] 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.[128] 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.
c. The people of Madīnah were eye-witnesses of the last deeds of the Prophet, and they know the nāsikh (abrogative) from mansūkh (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.
d. 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.[129]
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..[130] 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:
وَمِمَّنْ حَوْلَكُمْ مِنَ الْأَعْرَابِ مُنَافِقُونَ وَمِنْ أَهْلِ الْمَدِينَةِ مَرَدُوا عَلَى النِّفَاقِ
لَا تَعْلَمُهُمْ نَحْنُ نَعْلَمُهُمْ سَنُعَذِّبُهُمْ مَرَّتَيْنِ ثُمَّ يُرَدُّونَ إِلَى عَذَابٍ عَظِيمٍ
(التوبة ٩ : ١٠١)
“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
relegated to a painful doom.”
(Qur’ān 9:101),
and
إِنَّ الْمُنَافِقِينَ فِي الدَّرْكِ الْأَسْفَلِ مِنَ النَّارِ وَلَنْ تَجِدَ لَهُمْ نَصِيرًا
(النساء ٩ : ١٤٥)
“Lo! The hypocrites (will be) in the lowest deep of the fire,
and thou wilt find no helper for them”
(Qur’ān 4:145).
ENDNOTES:
1This is also the opinion of al-Naz.z.ām who argues that if ijmā‘ is based on positive evidence (دَلِيْلٌ قَطْعِيّ) , i.e., the Qur’ān and the Sunnah, it would be the h.ujjah by itself; but if ijmā‘ is based on probable evidence (دَلِيْلٌ ظَنِّيّ), i.e., reasoning, the ijmā‘ would not occur due to the difference of men’s nature. Dr. S.ubh.ī al- S.ālih., al-Nuz.um al-Islāmiyyah: Nash’atuhā wa Tat.awwuruhā, 1st ed. (Beirut: Dār al-‘Ilm lil-Malāyīn, 1385/1965), p. 236.
2Al-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.
3Ibn H.azm, Ih.kām, vol. 4, p. 497.
4Al-Ghazālī, al-Mustas.fá, vol. 1, pp. 174-175.
5Ibn H.azm, Ih.kām, vol. 4, p. 498.
6Mu‘tamad, vol. 2, p. 471.
7This 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.
8Ibn Taymiyyah, Ma‘ārij al-Wus.ūl (Cairo: Dār al-Zaynī lil-T.ibā‘ah wa ’l-Nashr, n.d.), pp. 38-389. (Hereafter referred to as Ma‘ārij).
9See ‘Alī ‘Abd al-Rāziq, al-Ijmā‘ fī ’l-Sharī‘ah al-Islāmiyyah (Cairo: Dār al-Fikr al-‘Arabī, n.d.), p. 27.
10The second verse meant by Ibn H.azm is: ... وَلَوْ رَدُّوهُ إِلَى الرَّسُولِ وَإِلَى أُولِي الْأَمْرِ مِنْهُمْ لَعَلِمَهُ الَّذِينَ يَسْتَنْبِطُونَهُ مِنْهُمْ ... (النساء ٤ : ٨٣) “…. 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).
11Ibn H.azm, Ih.kām, vol. 4, pp. 497-498.
12Ibid., vol. 4, p. 500, n. 1
13Ahmad 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. 345-346. 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.
14Ibn H.azm, Ih.kām, vol. 4, p. 498
15For verses of similar meaning, see Qur’ān 10:16, 46:9, 7:203, 10:109, and 33:2.
16Ibn H.azm, Ih.kām, vol. 4, pp. 498-499.
17Ibid., p. 499.
18Ibid., 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 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.
19Ibid., vol. 4, p. 497.
20Ibid.
21‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 101.
22Ibn H.azm, Ih.kām, vol. 4, p. 503.
23Ibid., vol. 1, p. 87.
24Ibn H.azm gives the definition of mujmal as follows: لَفْظٌ يَقْتَضِيْ تَفْسِيْرًا فَيُؤْخَذُ مِنْ لَفْظٍ آخَر. (“It is a word which needs explanation taken from another one.”) Ibid., p. 39.
25Another example is the act of performing the h.ajj (pilgrimage). Ibid., p. 110.
26Ibid., p. 93.
27Both 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: ... فَمَنْ شَاءَ فَلْيُؤْمِنْ وَمَنْ شَاءَ فَلْيَكْفُرْ ... (الكهف ١٨ : ٢٩) “Then whosoever will, let him believe, and whosoever will, let him disbelieve.” (Qur’ān, 18:29) and وَمَا تَشَاءُونَ إِلَّا أَنْ يَشَاءَ اللَّهُ ... (التكوير ٨١ : ٢٩؛ الدهر ٧٦ : ٣٠) “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.
28Ibid., 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 (أَهْلُ التَّفْسِيْر) . 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.
29Ibn H.azm, Ih.kām, vol. 1, p. 44
30Ibid., vol. 4, pp. 490 ff.
31Ibid., vol. 1, p. 71.
32Ibid., 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.
33Ibn 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.
34Ibn H.azm, Ih.kām, vol. 1, p. 78.
35Ibid., p. 79.
36See Ibn H.azm, Ih.kām, vol. 1, pp. 87-88.
37bn H.azm, Ih.kām, vol. 4, p. 505.
38bn H.azm also defines the Sunnah as وَحْيٌ مَرْوِيٌّ مَنْقُوْلٌ غَيرُ مُؤَلَّفٍ وَ لَا مُعْجِزِ النِّظَامِ وَ لَا مَتْلٌوٍّ وَ لَكِنَّهُ مَقْرُوْء ("revelation reported, transmitted with no arranged and miraculous structure, and not recited but read"). Ibid., vol. 1, p. 87.
39Ibid., pp. 93-94.
40Ibid. See also ‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 14, n. 2.
41For further details, see Ibn H.azm, Ih.kām, vol. 1, p. 95.
42Ibid. Al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 294.
43Ibn H.azm, Ih.kām, vol. 1, p. 96.
44Ibid., pp. 96-97.
45Ibid., p. 97.
46See 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).
47Muh.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 ‘al a- ’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 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).
48Ibn H.azm, Ih.kām, vol. 1, p. 107.
49For further details, see Us.ūl al-Sarakhsī, vol. 1, pp. 111-113.
50Ibn H.azm, Ih.kām, vol. 1, p. 110.
51Ibn 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.
52Ibid., p. 109.
53Ibid., p. 110. See also idem, al-Fas.l, vol. 5, p. 114.
54Us.ūl al-Sarakhsī, vol. 1, p. 323.
55Ibn H.azm, Ih.kām, vol. 1, pp. 98, 100-101.
56 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 sub-divisions of the Imāmiyyah, among which are the Twelver Shī‘ah and the Ismā‘iliyyah. Farq, p. 23.
57‘Uddat al-Us.ūl, vol. 1, pp. 47 ff.
58Ibn 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.
59Ibn H.azm, Ih.kām, vol. 1, pp. 97-98; idem, Muh allá, vol. 1, p. 52.
60Ibn H.azm, Ih.kām, vol. 1, pp. 106, 123-124.
61 Ibn H.azm, Ih.kām, vol. 1, p. 107.
62Ibn 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 Hāshim, 1st ed. (Cairo: Mat.ba‘at al-Istiqlāl al-Kubrá, 1384/1965), p.769. (Hereafter referred to as Sharh. al-Us.ūl).
63Ibn H.azm, Ih.kām, vol. 4, p. 506.
64Ibn H.azm, Fas.l, vol. 5, p. 118.
65Qād.ī ‘Abd al-Jabbār, al-Mughnī, 20 vols (Cairo: Mat.ba‘at ‘Īsá al-Bābī al-H.alabī, 1385/19650, vol 15, p. 393.
66Ibn H.azm, Ih.kām, vol. 1, p. 138. Abū Zahrah, Ibn H.azm , pp. 298-300.
67‘Uddat al-Us.ūl, vol. 2, pp. 3, 53 ff.
68Ibn H.azm, Ih.kām, vol. 4, p. 422.
69For further examples, see Ibid., p. 431; see also idem, Muh.allá, vol. 1, p. 101.
70Ih.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.
71 Ibid., vol. 4, p. 430.
72Ibid., p. 435.
73Ibid., p. 422; al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p.55.
74Ibn H.azm, Ih.kām, vol. 1, p. 139.
75For 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.
76Ibid., vol. 8, pp. 1055-1056, 1065.
77Ibid, p. 1166.
78Ibid., vol.7, p.929.
79Abū Zahrah, Ibn H.azm, p. 37.
80The 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.
81Ibn 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 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 al-Karkhī prefers qiyās to the opinion of a s.ah.ābī. Us.ūl al-Sarakhsī, vol. 2, pp. 105-106.
82Ibn H.azm, Ih.kām, vol. 7, p. 931.
83I. Goldziher, Z.āhirīs, p. 35 n., quoting Abū ’l-Fidā, Annales, II (n.p., n.d.), p. 262.
84I See ibid., quoting Constitutiones Political, ed. Enger (N.p., n.d.), p. 111.
85I For further details, see Ih.kām, vol. 5, pp. 676-678.
86Ibid., pp. 929 ff.
87Ibid., vol. 8, pp. 1049 ff. For Ibn H.azm’s argument in refuting qiyās, see ibid., vol. 7, pp.929 ff.
88For further details, arguments and examples, see ibid., vol. 8, pp. 1138 ff.
89Other 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.
90Ibid., p. 505
91Idem. Marātib, pp. 7 and 10.
92Ibn 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).
93Examples 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), where no one who reaches adulthood and has sound mind can be ignorant of it. See Risālah, pp. 357-358.
94Kamāl 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.
95Ibn Taymīyah, Naqd, p. 11.
96Idem, Ma‘ārij al-Wus.ūl, p. 38.
97I Al-Barī, Mu‘tamad, vol. 2, p. 521.
98Ibn H.azm, Ih.kām, vol. 4, p. 509.
99The 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. 663-664. 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.
100Ibn H.azm, Ih.kām, vol. 5, p. 665.
101Ibn 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).
102Sa‘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.
103Al-Shawkānī, Irshād, p. 70.
104Ibn H.azm, Ih.kām, vol. 2, p. 203.
105Ibn H.azm, Ih.kām, vol. 5, p. 664.
106Ibn H.azm, Ih.kām, vol. 5, pp. 664-665; idem, Fas.l, vol. 4, p. 114.
107Idem, Ih.kām, vol.5, p. 665.
108Al-Shawkānī, Irshād, p. 69.
109Ibn H.azm, Ih.kām, vol. 2, p. 303.
110Ibid., vol.5, pp. 665-667; idem, Jawāmi‘, pp. 319-323.
111Idem, Ih.kām, vol. 2, p. 204; for further details, see idem, Fas.l, vol. 4, pp. 156-159.
112For further details, see idem, Fas.l, vol. 4, pp. 159-163.
113We 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.
114O.A. Farrukh, “Z.āhirism,” p. 277.
115According 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.
116Beside 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-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 al-Jawzīyah, I‘lām al-Mūqi‘īn ‘an Rabb al-‘Ālamīn (in the lower part of his H...ādī ’l-Arwāh.), 3 vols. (Egypt: Mat.ba‘at al-Nīl, n.d.), vol. 2, p. 327. (Hereafter referred to as I‘lām al-Mūqi‘īn).
117Ibn H.azm, Ih.kām, vol. 7, pp. 982-987; see also idem, Fas.l, vol. 4, p. 109.
118For 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.
119Ahmad Hasan, “The Political Role of Ijmā‘,” Islamic Studies 6 (June, 1973), p. 139.
120Al-Āmidī, Ih.kām al-Āmidī, pp. 379-380; al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 301.
121Ibn H.azm, Ih.kām, vol. 4, pp. 516-517.
122Idem, Marātib, p. 133.
123Us.ūl al-Sarakhsī, vol. 1, p. 301.
124Abū Zahrah, Ibn H.azm, pp. 354-358.
125Ibn H.azm, Ih.kām, vol. 4, pp. 505-506; see also idem, Fas.l, vol. 2, pp. 81-82. Khabar al-wāh.id can be known by necessity. In being so, ijmā‘ based on it can occur.
126Al-Shāfi‘ī, al-Risālah, pp. 533-535.
127Abū 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.
128Ibn 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: إنَّ اْلمَدِيْنَةَ طَيِّبَةٌُ تَنْفِيْ خُبْثَهَا كَمَا يَنْفِيْ الكِيْرُ خُبْثَ الْحَدِيْدِ “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.
129For further details of the position of the Mālikīs, see Ibn H.azm, Ih.kām, vol. 4, pp. 552-553.
130Ibn 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.
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‘ (سَنَدُ الإجْمَاع) 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. mujtahidīn).
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.[1] 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‘ (حُجِّيَّة ُالإجْمَاع), 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.,
وَمَنْ يُشَاقِقِ الرَّسُولَ مِنْ بَعْدِ مَا تَبَيَّنَ لَهُ الْهُدَى وَيَتَّبِعْ غَيْرَ سَبِيلِ الْمُؤْمِنِينَ
نُوَلِّهِ مَا تَوَلَّى وَنُصْلِهِ جَهَنَّمَ وَسَاءَتْ مَصِيرًا
(النساء ٤ :١١٥)
“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 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.[2]
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. [3]
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:
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ
فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ...
(النساء ٤ :٥٩)
“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).
Once more al-Ghazālī saw the verse as evidence to indicate that the unanimity of the community is right.[4] 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.[5] 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 al-amr, 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.” [6]
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..[7]
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 (مَنْصُوْص) from the Prophet so that disagreeing with it would mean disagreeing with the Prophet, as disagreeing with him would mean disagreeing with Allah. [8] If we go back to the sabab al-nuzūl (the 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.[9]
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; [10]therefore, according to Ibn H.azm, the ostensible meaning of the verse (ظَاهِرِيَّةُ الآيَة) 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‘.[11]
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 al-amr) 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 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 (إنَّمَا الطَّاعَةُ فِي ْالمَعْرُوْف)” .[12] 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. [13]
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 al-rasūl in the verse mentioned above.[14] 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, إِنْ أَتَّبِعُ إِلَّا مَا يُوحَى إِلَيَّ... (الأنعام ٦ : ٥٠) “I follow only what was revealed to me” (Qur’ān 6:50)[15] and those in which Allah informs us that the Prophet does not speak of his own desires, such as, وَمَا يَنْطِقُ عَنِ الْهَوَى. إِنْ هُوَ إِلَّا وَحْيٌ يُوحَى (النجم ٥٣ : ٣-٤) “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.[16]
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 al-rasūl 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.[17]
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.[18] If we 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:
لَا تَزَالُ طَائِفَةٌ مِنْ أُمَّتِي ظَاهِرِينَ عَلَى الْحَقِّ لَا يَضُرُّهُمْ
مَنْ خَذَلَهُمْ حَتَّى يَأْتِيَ أَمْرُ اللَّهِ
“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." [19]
(Reported by Muslim. Similar hadīths
are also reported by al-Tirmidhī,
Ibn Mājah, and Amad)
According to Ibn H.azm’s opponents this h.adīth indicates the justification of ijmā‘. On the contrary, Ibn H.azm contends that the 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.[20]
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. [21] 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 (وَحْيٌ مُثَبَّتٌ فِي اْلمُصْحَف) ” [22]also “revelation recited and arranged in such a way to account for its miraculous structure (وَحْيٌ مَتْلُوٌّ مُؤَلَّفٌ تَأْلِيْفًا مُعْجِزَ النِّظَام) ”.[23] 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 azm's definition “is a word which needs explanation taken from another one.”[24] 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.[25] But the required explanation is available in the Sunnah.[26]
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 mutashābihāt[27] 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 الم (alif, lām mīm) at the beginning of sūrat al-Baqarah (chapter 2), and Allah’s oaths in the Qur’ān, like وَالضُّحَى وَاللَّيْلِ إِذَا سَجَى (الضُّحَى ٩٣ : ١-٢) “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).[28] According to Ibn H.azm, seeking and following the ta’wīl of what he calls mutashābihāt is forbidden. [29] 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 (الْحرَامُ البَيِّن) and obviously permitted ((الْحَلاَلُ الْبَيِّن, seeking their interpretations is enjoined upon Muslims in order to understand their religion.[30]
The explanation (بيَان) of the mujmal verses in the Qur’ān is either: commentary(تَفْسِيْر), exception (إسْتِثْنَاء), or specification (تَخْصِيْص).[31] 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). [32]
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.[33]
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 ‘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. [34] The verse runs as follows:
... وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ
وَاحِدٍ مِنْهُمَا السُّدُسُ فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ مِنْ بَعْدِ وَصِيَّةٍ
يُوصَى بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ وَصِيَّةً مِنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَلِيمٌ.
(النساء ٤ :١٢)
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 summer [35] which is as follows:
يَسْتَفْتُونَكَ قُلِ اللَّهُ يُفْتِيكُمْ فِي الْكَلَالَةِ إِنِ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ
مَا تَرَكَ وَهُوَ يَرِثُهَا إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ وَإِنْ كَانُوا إِخْوَةً
رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ يُبَيِّنُ اللَّهُ لَكُمْ أَنْ تَضِلُّوا وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ
(النساء ٤ : ١٧٦)
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
the share of two females. Allah expounded unto you,
so that ye err not. Allah is Knower of all things.
(Qur’ān 4:176).
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: قُلْ إِنَّمَا أُنْذِرُكُمْ بِالْوَحْيِ... (الأنبياء ٢١ : ٤٥) “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: إِنَّا نَحْنُ نَزَّلْنَا الذِّكْرَ وَإِنَّا لَهُ لَحَافِظُونَ (الحجر ١٥: ٩) “Lo! We, even We, reveal the Reminder, and lo! We verily are is Guardian.” (Qur’ān 15:9).[36] But unlike the Qur’ān, the Sunnah from which the religious laws appear is revelation not established in the Scripture (وَحْيٌ غَيْرُ مُثَبَّتٍ فِي ْالمُصْحَف) , [37] 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.[38] 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 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.
a.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 (مَا نَقَلَهُ كَافَةٌ بَعْدَ كَافَةٍ حَتّى تَبْلُغَ بِهِ النَّبِيّ). 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.[39]
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.[40]
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 it is not reasonable to make a distinction between a h.adīth reported by seventy people and that by sixty-nine, so to speak. 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 (التَّوَاطُؤُ عَلَى اْلكَذِب) 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.[42]
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 a h.adīth if there were any motive behind the act of lying; for example, when the people involved were offered worldly matters (رُغِبُوا) or frightened (رُهِبُوْا). 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 ضَرُوْرَةُ الْحِسّ (essential grasping of something by means of sense power).[43]
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 the h.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, marriage, and many others. In all these examples, the number of transmitters involved is two or more.[44]
b. 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 (وَجَبَ اْلعَمَلُ بِهِ وَ وَجَبَ اْلعِلْمُ بِصِحَّتِهِ أَيْضًا). 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,[45] 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.[46]
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.[47]
Ibn H.azm reproaches those who maintain that the sound khabar al-wāh.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 (جمُْهُوْرُ اْلَمالِكِيِّيْن), all Mu‘tazilīs and Khārijīs.[48] 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 (لَا يُوْجِبُ عِلْمَ اْلَيَقِيْن), 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..[49] 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. [50] 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.[51]
Ibn H.azm’s argument regarding the reliability of the khabar al-wāh.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. [52] His argument that khabar al-wāh.id is also 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. [53]
Ibn H.azm’s first proof for the reliability of khabar al-wāh.id is the following verse of the Qur’ān:
... فَلَوْلَا نَفَرَ مِنْ كُلِّ فِرْقَةٍ مِنْهُمْ طَائِفَةٌ لِيَتَفَقَّهُوا فِي الدِّينِ
وَلِيُنْذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ
(التوبة ٩ : ١٢٢)
“…. 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.[54] 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. [55]
Al- T.ūsī [56] gives us a different view on the verse in question. He maintains that the verse does not indicate that the Muslims should accept 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 (أَدِلَّّةُ اْلعَقْل) . 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 (إلاّ دَلَّّ اْلعِلْمُ الْمُعْجِزُ عَلىَ صِدْقِه). According to al-T.ūsī, the khabar al-wāh.id which necessitates knowledge(مُوْجِبٌ لِلْعِلْم) 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.[57]
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.[58] 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.[59]
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:
وَجَاءَ رَجُلٌ مِنْ أَقْصَى الْمَدِينَةِ يَسْعَى قَالَ يَا مُوسَى إِنَّ الْمَلَأَ يَأْتَمِرُونَ
بِكَ لِيَقْتُلُوكَ فَاخْرُجْ إِنِّي لَكَ مِنَ النَّاصِحِينَ. فَخَرَجَ مِنْهَا خَائِفًا يَتَرَقَّبُ ...
(القصص ٢٨ : ٢٠-٢١)
“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:
فَجَاءَتْهُ إِحْدَاهُمَا تَمْشِي عَلَى اسْتِحْيَاءٍ قَالَتْ
إِنَّ أَبِي يَدْعُوكَ لِيَجْزِيَكَ أَجْرَ مَا سَقَيْتَ لَنَا...
(القصص ٢٨ :٢٥)
“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'…”
(Qur’ān 28:25).[60]
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.[61] 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. [62] 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‘,[63] 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.[64] 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. [65]
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:
a.Qawl (the statement) of the Prophet
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 al-nadb (recommending). [66] 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.
b. 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. [67] 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.[68]
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.[69]
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:
لَقَدْ كَانَ لَكُمْ فِي رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَةٌ لِمَنْ
كَانَ يَرْجُو اللَّهَ وَالْيَوْمَ الْآخِرَ وَذَكَرَ اللَّهَ كَثِيرًا.
(الأحزاب ٣٣ : ٢١)
“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 لَقَدْ كَانَ لَكُمْ . Ibn H.azm says further that if we say هذَا لَكَ (this is for you), you may take it or leave it, while if we say عَلَيْكَ هَذَا (this is [incumbent] upon you) you must do it. [70] 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. [71] 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.[72]
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 (آكَدُ مِنْ أَوَامِرِه) , while some Mālikīs and H...anafīs consider them like his orders (الأَفْعَالُ كَاْلأَوَامِر). 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.[73]
c. 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).[74] 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. [75]
3. Qiyās
Essentially, Ibn H.azm rejects the idea of qiyās on the ground that an act of this nature is false and prohibited. [76] 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.[77] The proponents of qiyās are all of the Shāfi‘īs, groups among the H.anafīs and Mālikīs, as mentioned by Ibn H.azm.[78] 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.[79] 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),[80] according to him, also nullifies wud.ū’.[81] As a Z.āhirī who refuses qiyās as one of 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’.[82]
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. [83] 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…” [84] Ibn H.azm denies this accusation and says that his dalīl is purely based on nas.s.. [85]
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 al-Maqdis.[86]
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; [87] b) that the application of qiyās is wrong, because it is based on the idea of ‘illah, and Ibn H.azm rejects it.[88]
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 (اْلمَعْلُوْمُ بِالضَّرُوْرَة), 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.
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. (نَصٌّ جَلِيّ) 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.[89] 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. [90] 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.[91] 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‘ (الإجْمَاعُ اْلمَعْلُوْم) . 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.[92]
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 al-Shāfi‘ī[93]. In addition, al-Naz.z.ām, who was notorious for his rejection of the occurrence of ijmā‘ [94] and its validity, is not considered an infidel by Ibn H.azm.[95] 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.[96] This is also the view of the Mu‘tazilī Abū ’l- H.usayn al-Bas.rī, who maintains that the existence of this type of ijmā‘ exempts people from seeking the proof in the nas.s..[97] 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 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. [98] 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. [99] 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 (سَاعَة). 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 al-s.uh.bah relates to anyone with whom somebody has a certain matter and 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. [100] This view of Ibn H.azm is similar to that of Ibn Taymiyyah, Ah.mad ibn H.anbal, and Mālik ibn Anas.[101] On the basis of this argument, Ibn H.azm rejects the view reported by Sa‘īd ibn al-Musayyib [102] 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.[103] 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).[104]
According to Ibn H.azm all of the s.ah.ābah were عُدُوْل (sing. عَدْل, honest people), فاَضِل (eminent) and مِنْ أَهْلِ اْلجَنَّة (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:
مُحَمَّدٌ رَسُولُ اللَّهِ وَالَّذِينَ مَعَهُ أَشِدَّاءُ عَلَى الْكُفَّارِ
رُحَمَاءُ بَيْنَهُمْ تَرَاهُمْ رُكَّعًا سُجَّدًا يَبْتَغُونَ فَضْلًا مِنَ اللَّهِ وَرِضْوَانًا
سِيمَاهُمْ فِي وُجُوهِهِمْ مِنْ أَثَرِ السُّجُودِ ذَلِكَ مَثَلُهُمْ فِي التَّوْرَاةِ وَمَثَلُهُمْ
فِي الْإِنْجِيلِ كَزَرْعٍ أَخْرَجَ شَطْأَهُ فَآزَرَهُ فَاسْتَغْلَظَ فَاسْتَوَى عَلَى سُوقِهِ
يُعْجِبُ الزُّرَّاعَ لِيَغِيظَ بِهِمُ الْكُفَّارَ وَعَدَ اللَّهُ الَّذِينَ آمَنُوا
وَعَمِلُوا الصَّالِحَاتِ مِنْهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا
(الفتح ٤٨ : ٢٩)
“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)
إِنَّ الَّذِينَ سَبَقَتْ لَهُمْ مِنَّا الْحُسْنَى أُولَئِكَ عَنْهَا مُبْعَدُونَ. لَا يَسْمَعُونَ
حَسِيسَهَا وَهُمْ فِي مَا اشْتَهَتْ أَنْفُسُهُمْ خَالِدُونَ. لَا يَحْزُنُهُمُ الْفَزَعُ الْأَكْبَرُ
وَتَتَلَقَّاهُمُ الْمَلَائِكَةُ هَذَا يَوْمُكُمُ الَّذِي كُنْتُمْ تُوعَدُونَ
(الأنبياء ٢١ : ١٠١-١٠٣)
“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)
... لَا يَسْتَوِي مِنْكُمْ مَنْ أَنْفَقَ مِنْ قَبْلِ الْفَتْحِ وَقَاتَلَ أُولَئِكَ أَعْظَمُ دَرَجَةً
مِنَ الَّذِينَ أَنْفَقُوا مِنْ بَعْدُ وَقَاتَلُوا وَكُلًّا وَعَدَ اللَّهُ الْحُسْنَى وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ
(الحديد ٥٧ : ١٠)
“… 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).[105]
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:
دَعُوا لِي أَصْحَابِي، فََلَوْ كَانَ لِأَحَدِكُمْ مِثْلَ أُحُدٍ ذَهَبًا
فَأَنْفَقَهُ فِيْ سَبِيْلِ الله مَا بَلَغَ مُدَّ أَحَدِهِمْ وَلَا نَصِيْفَهُ
“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]. ” [106]
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.[107]
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 al-Bāqillānī 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 certain Qur’ānic verses and h.adīths, among which are those mentioned by Ibn H.azm above. [108]
b. The view of Abū ’l- H.usayn ibn al-Qat.t.ān (d. 359/970), and al-Naz.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 Wahshī who 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 (فِيْ حَيْنِ النَّذَارَةِ وَ اْلمَجِيْءِ بِالْخَبَر), not when he was witnessing what he had reported (لَا فِيْ حِيْنِ مُشَاهَدَةِ مَا أَخْبَرَ بِه). 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 known.[109] 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.[110]
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 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.[111]
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 (تَقْدِيْمُ أَخْذِ اْلقَوَد) 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.[112]
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”,[113] namely, that they are “in constant contact with the Prophet and fully aware of his intentions.” [114] 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.[115] 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.[116] One of these examples cited by 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). [117] 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 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.[118] 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‘.[119]
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 al-Rah.mān ibn ‘Awf, another s.ah.ābī says the minimum h.add (fixed punishment) is eighty lashes. [120] 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 lashes for every cup drunk by the intoxicant drinker. [121] 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. [122] 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.[123]
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.[124]
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 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(نَقَلَهُ ثِقَةٌ عَنْ ثِقَةٍ) , 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. [125]
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‘ī [126] and al-Layth ibn Sa‘d [127] 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.[128] 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.
c. The people of Madīnah were eye-witnesses of the last deeds of the Prophet, and they know the nāsikh (abrogative) from mansūkh (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.
d. 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.[129]
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..[130] 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:
وَمِمَّنْ حَوْلَكُمْ مِنَ الْأَعْرَابِ مُنَافِقُونَ وَمِنْ أَهْلِ الْمَدِينَةِ مَرَدُوا عَلَى النِّفَاقِ
لَا تَعْلَمُهُمْ نَحْنُ نَعْلَمُهُمْ سَنُعَذِّبُهُمْ مَرَّتَيْنِ ثُمَّ يُرَدُّونَ إِلَى عَذَابٍ عَظِيمٍ
(التوبة ٩ : ١٠١)
“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
relegated to a painful doom.”
(Qur’ān 9:101),
and
إِنَّ الْمُنَافِقِينَ فِي الدَّرْكِ الْأَسْفَلِ مِنَ النَّارِ وَلَنْ تَجِدَ لَهُمْ نَصِيرًا
(النساء ٩ : ١٤٥)
“Lo! The hypocrites (will be) in the lowest deep of the fire,
and thou wilt find no helper for them”
(Qur’ān 4:145).
ENDNOTES:
1This is also the opinion of al-Naz.z.ām who argues that if ijmā‘ is based on positive evidence (دَلِيْلٌ قَطْعِيّ) , i.e., the Qur’ān and the Sunnah, it would be the h.ujjah by itself; but if ijmā‘ is based on probable evidence (دَلِيْلٌ ظَنِّيّ), i.e., reasoning, the ijmā‘ would not occur due to the difference of men’s nature. Dr. S.ubh.ī al- S.ālih., al-Nuz.um al-Islāmiyyah: Nash’atuhā wa Tat.awwuruhā, 1st ed. (Beirut: Dār al-‘Ilm lil-Malāyīn, 1385/1965), p. 236.
2Al-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.
3Ibn H.azm, Ih.kām, vol. 4, p. 497.
4Al-Ghazālī, al-Mustas.fá, vol. 1, pp. 174-175.
5Ibn H.azm, Ih.kām, vol. 4, p. 498.
6Mu‘tamad, vol. 2, p. 471.
7This 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.
8Ibn Taymiyyah, Ma‘ārij al-Wus.ūl (Cairo: Dār al-Zaynī lil-T.ibā‘ah wa ’l-Nashr, n.d.), pp. 38-389. (Hereafter referred to as Ma‘ārij).
9See ‘Alī ‘Abd al-Rāziq, al-Ijmā‘ fī ’l-Sharī‘ah al-Islāmiyyah (Cairo: Dār al-Fikr al-‘Arabī, n.d.), p. 27.
10The second verse meant by Ibn H.azm is: ... وَلَوْ رَدُّوهُ إِلَى الرَّسُولِ وَإِلَى أُولِي الْأَمْرِ مِنْهُمْ لَعَلِمَهُ الَّذِينَ يَسْتَنْبِطُونَهُ مِنْهُمْ ... (النساء ٤ : ٨٣) “…. 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).
11Ibn H.azm, Ih.kām, vol. 4, pp. 497-498.
12Ibid., vol. 4, p. 500, n. 1
13Ahmad 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. 345-346. 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.
14Ibn H.azm, Ih.kām, vol. 4, p. 498
15For verses of similar meaning, see Qur’ān 10:16, 46:9, 7:203, 10:109, and 33:2.
16Ibn H.azm, Ih.kām, vol. 4, pp. 498-499.
17Ibid., p. 499.
18Ibid., 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 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.
19Ibid., vol. 4, p. 497.
20Ibid.
21‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 101.
22Ibn H.azm, Ih.kām, vol. 4, p. 503.
23Ibid., vol. 1, p. 87.
24Ibn H.azm gives the definition of mujmal as follows: لَفْظٌ يَقْتَضِيْ تَفْسِيْرًا فَيُؤْخَذُ مِنْ لَفْظٍ آخَر. (“It is a word which needs explanation taken from another one.”) Ibid., p. 39.
25Another example is the act of performing the h.ajj (pilgrimage). Ibid., p. 110.
26Ibid., p. 93.
27Both 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: ... فَمَنْ شَاءَ فَلْيُؤْمِنْ وَمَنْ شَاءَ فَلْيَكْفُرْ ... (الكهف ١٨ : ٢٩) “Then whosoever will, let him believe, and whosoever will, let him disbelieve.” (Qur’ān, 18:29) and وَمَا تَشَاءُونَ إِلَّا أَنْ يَشَاءَ اللَّهُ ... (التكوير ٨١ : ٢٩؛ الدهر ٧٦ : ٣٠) “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.
28Ibid., 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 (أَهْلُ التَّفْسِيْر) . 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.
29Ibn H.azm, Ih.kām, vol. 1, p. 44
30Ibid., vol. 4, pp. 490 ff.
31Ibid., vol. 1, p. 71.
32Ibid., 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.
33Ibn 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.
34Ibn H.azm, Ih.kām, vol. 1, p. 78.
35Ibid., p. 79.
36See Ibn H.azm, Ih.kām, vol. 1, pp. 87-88.
37bn H.azm, Ih.kām, vol. 4, p. 505.
38bn H.azm also defines the Sunnah as وَحْيٌ مَرْوِيٌّ مَنْقُوْلٌ غَيرُ مُؤَلَّفٍ وَ لَا مُعْجِزِ النِّظَامِ وَ لَا مَتْلٌوٍّ وَ لَكِنَّهُ مَقْرُوْء ("revelation reported, transmitted with no arranged and miraculous structure, and not recited but read"). Ibid., vol. 1, p. 87.
39Ibid., pp. 93-94.
40Ibid. See also ‘Alī ‘Abd al-Rāziq, Ijmā‘, p. 14, n. 2.
41For further details, see Ibn H.azm, Ih.kām, vol. 1, p. 95.
42Ibid. Al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 294.
43Ibn H.azm, Ih.kām, vol. 1, p. 96.
44Ibid., pp. 96-97.
45Ibid., p. 97.
46See 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).
47Muh.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 ‘al a- ’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 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).
48Ibn H.azm, Ih.kām, vol. 1, p. 107.
49For further details, see Us.ūl al-Sarakhsī, vol. 1, pp. 111-113.
50Ibn H.azm, Ih.kām, vol. 1, p. 110.
51Ibn 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.
52Ibid., p. 109.
53Ibid., p. 110. See also idem, al-Fas.l, vol. 5, p. 114.
54Us.ūl al-Sarakhsī, vol. 1, p. 323.
55Ibn H.azm, Ih.kām, vol. 1, pp. 98, 100-101.
56 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 sub-divisions of the Imāmiyyah, among which are the Twelver Shī‘ah and the Ismā‘iliyyah. Farq, p. 23.
57‘Uddat al-Us.ūl, vol. 1, pp. 47 ff.
58Ibn 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.
59Ibn H.azm, Ih.kām, vol. 1, pp. 97-98; idem, Muh allá, vol. 1, p. 52.
60Ibn H.azm, Ih.kām, vol. 1, pp. 106, 123-124.
61 Ibn H.azm, Ih.kām, vol. 1, p. 107.
62Ibn 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 Hāshim, 1st ed. (Cairo: Mat.ba‘at al-Istiqlāl al-Kubrá, 1384/1965), p.769. (Hereafter referred to as Sharh. al-Us.ūl).
63Ibn H.azm, Ih.kām, vol. 4, p. 506.
64Ibn H.azm, Fas.l, vol. 5, p. 118.
65Qād.ī ‘Abd al-Jabbār, al-Mughnī, 20 vols (Cairo: Mat.ba‘at ‘Īsá al-Bābī al-H.alabī, 1385/19650, vol 15, p. 393.
66Ibn H.azm, Ih.kām, vol. 1, p. 138. Abū Zahrah, Ibn H.azm , pp. 298-300.
67‘Uddat al-Us.ūl, vol. 2, pp. 3, 53 ff.
68Ibn H.azm, Ih.kām, vol. 4, p. 422.
69For further examples, see Ibid., p. 431; see also idem, Muh.allá, vol. 1, p. 101.
70Ih.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.
71 Ibid., vol. 4, p. 430.
72Ibid., p. 435.
73Ibid., p. 422; al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p.55.
74Ibn H.azm, Ih.kām, vol. 1, p. 139.
75For 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.
76Ibid., vol. 8, pp. 1055-1056, 1065.
77Ibid, p. 1166.
78Ibid., vol.7, p.929.
79Abū Zahrah, Ibn H.azm, p. 37.
80The 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.
81Ibn 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 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 al-Karkhī prefers qiyās to the opinion of a s.ah.ābī. Us.ūl al-Sarakhsī, vol. 2, pp. 105-106.
82Ibn H.azm, Ih.kām, vol. 7, p. 931.
83I. Goldziher, Z.āhirīs, p. 35 n., quoting Abū ’l-Fidā, Annales, II (n.p., n.d.), p. 262.
84I See ibid., quoting Constitutiones Political, ed. Enger (N.p., n.d.), p. 111.
85I For further details, see Ih.kām, vol. 5, pp. 676-678.
86Ibid., pp. 929 ff.
87Ibid., vol. 8, pp. 1049 ff. For Ibn H.azm’s argument in refuting qiyās, see ibid., vol. 7, pp.929 ff.
88For further details, arguments and examples, see ibid., vol. 8, pp. 1138 ff.
89Other 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.
90Ibid., p. 505
91Idem. Marātib, pp. 7 and 10.
92Ibn 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).
93Examples 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), where no one who reaches adulthood and has sound mind can be ignorant of it. See Risālah, pp. 357-358.
94Kamāl 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.
95Ibn Taymīyah, Naqd, p. 11.
96Idem, Ma‘ārij al-Wus.ūl, p. 38.
97I Al-Barī, Mu‘tamad, vol. 2, p. 521.
98Ibn H.azm, Ih.kām, vol. 4, p. 509.
99The 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. 663-664. 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.
100Ibn H.azm, Ih.kām, vol. 5, p. 665.
101Ibn 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).
102Sa‘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.
103Al-Shawkānī, Irshād, p. 70.
104Ibn H.azm, Ih.kām, vol. 2, p. 203.
105Ibn H.azm, Ih.kām, vol. 5, p. 664.
106Ibn H.azm, Ih.kām, vol. 5, pp. 664-665; idem, Fas.l, vol. 4, p. 114.
107Idem, Ih.kām, vol.5, p. 665.
108Al-Shawkānī, Irshād, p. 69.
109Ibn H.azm, Ih.kām, vol. 2, p. 303.
110Ibid., vol.5, pp. 665-667; idem, Jawāmi‘, pp. 319-323.
111Idem, Ih.kām, vol. 2, p. 204; for further details, see idem, Fas.l, vol. 4, pp. 156-159.
112For further details, see idem, Fas.l, vol. 4, pp. 159-163.
113We 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.
114O.A. Farrukh, “Z.āhirism,” p. 277.
115According 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.
116Beside 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-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 al-Jawzīyah, I‘lām al-Mūqi‘īn ‘an Rabb al-‘Ālamīn (in the lower part of his H...ādī ’l-Arwāh.), 3 vols. (Egypt: Mat.ba‘at al-Nīl, n.d.), vol. 2, p. 327. (Hereafter referred to as I‘lām al-Mūqi‘īn).
117Ibn H.azm, Ih.kām, vol. 7, pp. 982-987; see also idem, Fas.l, vol. 4, p. 109.
118For 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.
119Ahmad Hasan, “The Political Role of Ijmā‘,” Islamic Studies 6 (June, 1973), p. 139.
120Al-Āmidī, Ih.kām al-Āmidī, pp. 379-380; al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, p. 301.
121Ibn H.azm, Ih.kām, vol. 4, pp. 516-517.
122Idem, Marātib, p. 133.
123Us.ūl al-Sarakhsī, vol. 1, p. 301.
124Abū Zahrah, Ibn H.azm, pp. 354-358.
125Ibn H.azm, Ih.kām, vol. 4, pp. 505-506; see also idem, Fas.l, vol. 2, pp. 81-82. Khabar al-wāh.id can be known by necessity. In being so, ijmā‘ based on it can occur.
126Al-Shāfi‘ī, al-Risālah, pp. 533-535.
127Abū 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.
128Ibn 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: إنَّ اْلمَدِيْنَةَ طَيِّبَةٌُ تَنْفِيْ خُبْثَهَا كَمَا يَنْفِيْ الكِيْرُ خُبْثَ الْحَدِيْدِ “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.
129For further details of the position of the Mālikīs, see Ibn H.azm, Ih.kām, vol. 4, pp. 552-553.
130Ibn 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.
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