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 Fal), 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.