1 INTRODUCTION Ibn azm was one of the unique and controversial Muslim scholars in Islamic history. He lived in Andalusia (Muslim Spain) in the 11 th century where Mālikī school was followed by its rulers and people. After reading Shāfi‘ī's criticism of Mālik he followed the Shāfi‘ī school, but through his further research and study of criticism of this school, he finally abandoned it and based his fiqh (Islamic jurisprudence) exclusively on the Qur’ān and the Sunnah of the Prophet. This was also the view of the vanished Zāhirī school founded by Abū Sulaymān Dā’ūd in Iraq about two centuries earlier. He was then reviving this Zāhirī school which was based on literal interpretation of the divine text (the Qur'ān and the Sunnah of the Prophet) among people and scholars who did not share his views. As a Zāhirī school follower and exponent Ibn azm did not give any important value of the third and fourth sources of Islamic law, namely, the ijmā‘ (consensus of Muslim scholars) and the qiyās (analogy). The ijmā‘ of the whole scholars or the whole Muslim ummah (community) could not have taken place in the past nor will be in future, as there were Muslim scholars among jinn whose opinions were unknown. What other scholars call qiyās he called it dalīl (textual evidence). One example is that the killing of one's parents is prohibited based on the prohibition of saying to them a word of disrespect (Qur’ān 17:23). This qiyās was not accepted by Ibn azm, although he said the prohibition of killing one's parent but based on the Qur’ānic verse prohibiting the killing of anyone except in the just cause (Q. 6:151). Ibn azm was a judge in Muslim Andalusia and was considered one of the mujtahidīn. His views in many Islamic legal issues in general and his concept of ijmā’ in particular are still relevant to our research and study of Islamic legal thinking.
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Transcript
1
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.
2
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
( ) 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
3
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
4
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 ( ), and the Qur’ānic
exegesis ( ) of Abū ‘Abd ‘Abd al-Rah.mān Baqī ibn Mukhlad, an
‘ālim (a learned man, a scholar) who did not attach himself to any madhhab (school of law). This Qur’ānic exegesis was considered by Ibn
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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
6
degree, the Shāfi’īs. This is because he attacked the H.anafīs’ upholding of
qiyās and istih.sān (preference, application of discretion in a legal
judgement) as the bases of the sharī‘ah (the canonical law of Islam) in addition to the Qur’ān and the H...adīth, and the Shāfi‘īs’ assertion of qiyās.
In theoretical and practical levels, his opponents were the Mālikīs, the
followers of the prevalent madhhab in Andalusia of his time.17
Moreover,
he denounced his opponents for their following their imāms (leaders), the founders of their schools, as authority instead of the Qur’ān and the
H.adīth. Yet, he praised and prayed for these imāms of madhhabs in his
writings, though he attacked them on some occasions. He said:
Let it be known that anyone who accepts
as authoritative, adheres to, or follows Mālik,
Abū H. anīfah, al-Shāfi‘ī, Sufyān al-Thawrī, al-Awzā‘ī,
Ah.mad, and Dāwūd, may Allah be pleased with them, they
are innocent from him in this world, the Hereafter,
and the Day of Judgement where written
certification became manifested.18
Ibn H.azm was a notorious opponent. He attacked whoever disagreed
with him. He was accused of having an insolent tongue ( ), and of
neglecting to examine the truth of the news which reached him.19
The
historian al-Subkī (d. 771/1370) denounced him for attacking Abū 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 ( ), though one expressed his being a Jew, a
Christian, or any other kind of infidelity.21
Ibn H.azm’s al-Fas.l was
considered by al-Subkī as one of the worst books which should not be read
by people, due to its contempt of the main body of Muslims ( ), and
its referring foolish words to their leaders without any examination. Ibn
H.azm’s rashness in believing the reports which reached him and his
immediate denunciation was one of many reasons for his expulsion from
his village by Abū al-Walīd al-Bājī and his fellows,22
with whom Ibn H.azm had held a debate.
23
7
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 ( ),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.
8
According to ‘Abd al- L at.īf Sharārah, Ibn H.azm never left politics after
he became a vizier of al-Mustaz.hir. Sharārah says:
The fact which was not noted by those who wrote
the biography of Ibn H. azm, and by those who spoke and
wrote about him later, was that Ibn H. azm did not leave politics
after he had become the vizier of al-Mustaz.hir. He did not stop
thinking of it one day, and he never ceased to hope for the
return of his family to it, if not himself, and particularly
under the sovereignty of the Umayyad throne.34
In Sharārah’s view, Ibn H.azm’s choice of fiqh as his field of work
was because he intended “to bring back a dynasty afflicted with
destruction ( ) through moral social consciousness (
).”35
Sharārah further maintains that Ibn H.azm believed that
the weakness of the Umayyad dynasty was due to “terrifying moral disintegration and obvious intellectual deviation, then the invented views
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
9
sentences instead of two nouns. The complete reading and the translation of this verse as maintained by Ibn H.azm as well as the
‘ulamā‘ en masse is the following:
He it is He Who hath revealed unto thee
(Muhammad) the Scripture wherein are clear
revelations—They are the substance of the Book—and
others (which are) allegorical. But those in whose hearts is
doubt pursue, forsooth, that which is allegorical seeking (to cause)
dissension by seeking to explain it. None knoweth its explanation
save Allah. And those who are of sound instruction say:
‘We believe therein; the whole is from our Lord’;
but only men of understanding really heed.
(Qur’ān 3:7)40
b. Allah prohibited people from seeking the ta’wīl of the mutashābihāt,
asserting that those who seek and follow its ta’wīl are doubters and
followers of fitnah (dissension);
c. If al-rāsikhūn fī’l-‘ilm had known its ta’wīl, they would have explained
it to the people, because they are enjoined by Allah to do so. Ibn H.azm
refers to the verse:
“Those who hide the proofs and the guidance
which We revealed, after We had made it clear in the
Scripture: such are accursed of Allah and accursed
of those who have the power to curse.”
(Qur’ān 2:159).41
If they explained it to the people, Ibn H.azm goes on to say, it would
not be ambiguous any longer, so that all people would have the same knowledge. Yet, this is not the case, as mentioned in the verse in
11
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 (
).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.
11
To a lesser degree, beside the Ismā‘ilīyah, the term bāt.inīyah was also
applied by Sunnī writers to those who, in their opinion, rejected the literal
meaning of the nas.s. in favour of its inner meaning.45
Another movement which the Z.āhirī school was partly a reaction
against, was the Mu‘tazilī theological school which emerged in the
beginning of the second/eighth century. This school applied reason and
philosophy in interpreting the nas.s. instead of referring to its traditional
interpretation.46
They called themselves ahl al-‘adl wa ’l-tawh.īd (the
Champions of Divine Justice and Oneness) for their rejection of the doctrine of Divine predestination and His attributes.
47 This Mu‘tazilī
school was adopted by al-Ma’mūn as the official doctrine of the state.
In the third/ninth century Dāwūd founded the Z.āhirī school in Iraq to
counteract the Bāt.inīyah, the Mu‘tazilah, and those who went beyond the
traditional interpretation of the nas.s.. This Z.āhirī school insisted on the
literal meaning of the nas.s. and keeping away from any interpretation of
it.48
Although the Z.āhirī school was disappearing in the East and was
replaced by the H.anbalī school in the fifth/eleventh century, Ibn H.azm
revived it in Andalusia as a reaction against the corruption in political and
judicial fields. The nas.s. was violated and interpreted beyond its true
meaning. Qiyās, personal opinion, and biased fatāwá () were
being exercised. Ibn H.azm was aware of how the people of Andalusia
agreed and pledged allegiance to Hishām al-Mu’ayyid bi-Allāh in 365/976,
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
12
purely Z.āhirī in nature. In other words, the Z.āhirī school was seen by Ibn
H.azm to be the only solution in saving Andalusia from corruption and
destruction. This is the reason for his strong attachment to this school.
Ibn H.azm’s motive for reviving and promoting the Z.āhirī school was
both political and religious. However, in the second half of his life he
confined himself to religious activity, for politics was closely related to religion. The establishment of the Islamic society and the appointment of
an imām whose duty was to protect Islam and to apply its teachings in all
of its aspects were parts of religion. Teaching the Z.āhirī fiqh to Muslims
and their leaders was also a political activity, because through this teaching, they became guided and controlled. They would know their
duties in the light of the sharī‘ah.
Ibn H.azm stressed the importance of fiqh and teaching it to the
people, and dedicated his life to this purpose. He said:
…. And as we are sure that the world is not an
everlasting abode, but an abode of trial and testing and
a passing way () to the abode of eternity, so it is true
that there is no benefit (ةَداِئَف) in this world and of being
in it, except [in] knowing what Allah the Almighty
has ordered us, teaching it to the ignorant ones
( ) and acting according to it... 51
Ibn H.azm emphasizes his Z.āhirī belief, not only in his theological
and legal writings, but also in his poetry. This is shown most pointingly in the following lines:
*
*
*
*
A person blames me about someone whose beauty enchanted me,
He prolongs his blame of me for [falling in] love and says:
“Are you a victim of [love on seeing] a face which shone, [so that]
you do not see other than it (the face), [i.e., the rest part of the body],
And you do not know how the body is?”
13
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.” means “I collected the camels together
(taken as booty).” The Arabic idiom (falāt majma‘ah, mujmi‘ah or
mujammi‘ah) means “an open ground where people assembled fearing to
be lost or [from] other [danger].”54
Another root meaning of ijmā‘ is “to determine”, and “to decide”.
means “I decide (determine) upon the affair.” It is in this
meaning that it is mentioned in the Qur’ān,
which means “so decide upon your course of action.” (Q. 10:71).55
The
Prophet meant this root meaning of ijmā‘ when he said that fasting was not
legal for one who had not decided () to fast the night before.56
Another
root meaning of ijmā‘ is: “to agree upon.” It is an agreement between two
or more persons.57
14
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 () .59
Ibn H.azm maintains
that there is no ijmā‘ in religion other than this ijmā‘.60
In another version of his definition of ijmā‘, Ibn H...azm elaborates his
view as follows:
Ijmā‘ is what is known and asserted with
conviction by all the s.ah.ābah of the Messenger
of Allah, and none of them disagreed. It is like our
certainty that they prayed with him the five-daily prayers,
as they [i.e., the prayers] are in the number of their rukū‘
(bowing) and sujūd (prostration), or that they knew that he
prayed with people; likewise is that all of them [i.e., all the
s.ah.ābah] fasted with him in [the month of] Ramad.ān in
the city [of Madinah] () ; and so are the rest of the
sharā’i‘ (sing. sharī‘ah, canonical laws of Islam) recognized
with similar certainty. He who does not affirm them [i.e., the
sharā’i‘] is not among the believers. This is what nobody
disagreed on its being ijmā‘. They [i.e., the s.ah.ābah] were
at that time the whole believers. There are no believers
on earth other than they. Whoever claims that other
than this is ijmā‘, he has to prove what he claims
() and there is no
way [for him] to [do] it.61
15
From these two definitions of ijmā‘ given by Ibn H.azm we can draw
the following conclusions:
a. Ijmā‘ is the unanimity of the s.ah.ābah on what they saw, heard, knew,
and received with certainty from the Prophet. It is the Sunnah itself.
According to Ahmad Hasan, “… roughly until the middle of the second century of the Hijrah, Sunnah remained so close to ijmā‘ that both were
used interchangeable, rather sometimes they were identified.”62
Another
contemporary scholar, Mohammad Talaat al-Ghunaimi sates, “Ijmā‘ stands on the border line between primary and secondary source in the
Islamic law.”63
The ijmā‘ which is maintained is identical to the Sunnah
and stands as the primary source of Islamic law, while that maintained by his opponents, in our view, stands as the second one.
b. What the s.ah.ābah had unanimously agreed upon should also be
accepted by all Muslims in later generations in order for them to remain believers. As this type of ijmā‘ is identical to the h.adīth of the
mutawātir type (see below on khabar al-tawātur), rejecting it would
mean denying the Sunnah, and this would lead to infidelity. However,
rejecting an ijmā‘ which is irrelevant to the Islamic faith, like the fact that the Prophet imposed taxes on the Jews of Khaybar does not lead to
infidelity, but rather indicates one’s ignorance.
c. Ibn H.azm insisted on the unanimity of all Muslims (jurists as well as
laymen) in the occurrence of ijmā‘. As the time of the s.ah.ābah was the
only time accepted by Ibn H.azm for the occurrence of ijmā‘, and as
they comprised the totality of Muslims at that time, their unanimity,
which was the total ijmā‘, occurred. This is also the view of Ibn H.azm’s
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
16
In the foregoing definitions of ijmā‘ Ibn H.azm gave us one type of
ijmā‘, i.e., the ijmā‘ of the s.ah.ābah.66
However, he mentioned two types
of ijmā‘ in his writings. The first one is as follows:
It is everything which no Muslim doubts
that whoever does not assert it is not a Muslim, like:
bearing witness that there is no god but Allah and that
Muhammad is the messenger of Allah, the injunction of the
five-daily prayers, the fasting in the month of Ramad.ān, the
prohibition against [eating] corpse, blood, or pork, the affirmation
of the Qur’ān [as revelation], and the zakāh (alm tax) in general
() . These are matters which when they come to someone’s
ears and he does not affirm them, he is not a Muslim. If it is so,
then everyone who affirms them is a Muslim. So, it is true
that they are ijmā‘ of the whole followers of Islam.67
This type of ijmā‘ involves i‘tiqādāt (articles of religious faith or
practice) which should be accepted by Muslims, and things known by
necessity () . This is also the opinion of al-Shāfi‘ī who
maintained that there was ijmā‘ in several ordinance which could
not be unknown to Muslims, so that if we said that people agreed upon a
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 group69
of women, children, and
17
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.
18
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
19
maintains that prayer is subordinate to and a far‘ (a branch, a section) of the imāmah, and not vice versa. Therefore, according to Ibn H.azm,
applying qiyās for the succession of Abū Bakr is not permissible.77
With regard to al-Naz.z.ām’s view of ijmā‘, he rejects it as h.ujjah.78
However, we are told that he gives the following definition of ijmā‘: “It is
every authoritative statement, even of a single person (
”(.79
The example of ijmā‘ as reportedly given by al-Naz.z.ām
himself is that if a person is passing by a house, sees signs of the washing of a dead person, and hears an old woman coming out of the house saying
that so-and-so has died, this news (report) is accepted as authoritative, and
therefore, as ijmā‘.80
Al-Naz.z.ām seems to be contradicting himself when he rejects the
authority of ijmā‘, while at the same time he emphasizes its authority. But
what he means is that he is rejecting the authority of ijmā‘ maintained by the majority of ‘ulamā‘, because it is based on their ijtihād which is, as
mentioned before, fallible. In this case, his view is parallel to that of Ibn
H.azm. On the other hand, al-Naz.z.ām’s emphasis on the authority of ijmā‘
indicates his skepticism on the occurrence of ijmā‘ not based on an authoritative statement. This statement, as we have seen in the above
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
21
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 (
) 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
21
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 () . 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
22
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 () , he believes in the possibility of ijmā‘ of the ummah in
error. He asserts that this ijmā‘ in error may occur in any period of time.96
Similar to the view of al-Naz.z.ām, al-T.ūsī asserts the possibility of
the occurrence of ijmā‘, but not as h.ujjah, unless the opinion of the
infallible imām is included in the ijmā‘. Like al-Naz.z.ām, he also believes
in the possibility of the occurrence of ijmā‘ in error. His argument is that it
is possible that the Muslim community could fall into a shubhah (judicial
error) whenever they believe what is not dalīl as such, and base their ijmā‘ on it. This happened to their communities. For the example of the
communities who fall into a shubhah as given by al-T.ūsī, is that Jews,
Christians, and other non-Muslim communities agree on the nullity of
Islam and the falsehood of Prophet Muhammad, in spite of their greatness in number.
97 The h.adīth dealing with Allah’s protecting the Muslim
community from error and that His hand is upon them are, in al-T.ūsī’s
view, undependable ( ), because they are akhbār āh.ād (sing.
23
khabar wāh.id, h.adīths reported by one chain of authority) which do not
necessitate knowing it () .98
Ah.mad ibn H.anbal (d. 241/855), the founder of the H.anbalī school
of law which is close to the Z.āhirī, maintains in one report from him, that
what is claimed to be ijmā‘ is a lie, and he who claims it is a liar, because people may disagree, and this disagreement has not reached us. This view
is similar to that of Ibn H.azm in rejecting the occurrence of ijmā‘ other
than that of the s.ah.ābah. However, in another report from Ah.mad ibn
H.anbal, he accepted the ijmā‘ of the majority, which is contrary to Ibn
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.