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

5

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.

24

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. 10

H. adīth literally means “speech,” “narrative,” “report.” The h.adīth of the

Prophet is the Prophetic Tradition, i.e., the written expression of the Prophet’s

statements, deeds, and tacit approvals. However, a h.adīth (a tradition) with a small

“h.” is also used in this study to indicate the report of a particular saying, deed, or

approval of the Prophet. A h.adīth is called by Ibn H. azm khabar, which literally

means “a report,” “a news,” “an information.” 11

Abū Zahrah, Ibn H. azm, pp. 31-32. It was reported by Abū Muh.ammad ‘Abd

Allāh ibn al-‘Arabī that Ibn H. azm started learning fiqh at the age of 26, because he

did not know how to perform tah.iyyat al-masjid prayer, i.e., a prayer performed by a

Muslim upon entering a mosque. Al-Dhahabī, Tadhkirat, pp. 1150-1151. This report

has been rejected by our contemporary scholars, Abū Zahrah and ‘Abd al-Lat.īf

Sharārah. For their arguments, see Abū Zahrah, Ibn H. azm, pp. 32-35, 82; A.L.

Sharārah, Ibn H. azm al-Rā’id, pp. 63-64. 12

Abū Zahrah, Ibn H. azm, p. 82.13

Ibid., p. 36.14

Ibid., pp. 82-5. Ibn Muflit (d. 426/1035) was the teacher who had greatest

influence on Ibn H. azm. Omar A. Farrukh, “Z.āhirism ,” A History of Modern

25

Philosophy, ed. M.M. Sharif (Wiesbaden: Otto Harrassowitz, 1963), vol. 1, p. 281.

(Hereafter referred to as “Z.āhirism”). 15

A. L. Sharārah, Ibn H. azm al-Rā’id, p. 65 16

O. A. Farrukh, “Z.āhirism,” pp. 176-7.17

R. Arnaldez, “Ibn H. azm,” E.I.2, p. 795. 18

Ibn H. azm, Ih.kām, vol. 1, pp. 89-90. See also ibid., p. 160; vol. 4, p. 531. 19

The allegation of al-Subkī about Ibn H. azm’s acceptance of reports brought to

him without careful examination of the truth of these reports might be true for the

following reasons: a) the suspicious character he inherited from women in his house;

b) his acceptance of reports related by a single reliable person.20

Al-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).21

Ibid.; see also Ibn H. azm, Kitāb al-Fas.l fī al-Milal wa ’l-Ahwā’ wa ’l-Nih.a l

5 vols. (Baghdad: Maktabat al-Muthanná ; Egypt: Mu’assasat al-Khānjī, n.d.), vol. 4,

p. 188. (Hereafter referred to as Fas.l). 22

Al-Subkī, T.abaqāt, vol. 1, p. 43.23

Al-Dhahabī, Tadhkirat, vol. 3, p. 1154. 24

A certain Abū ’l-‘Abbās ibn al-‘Arīf said: “The tongue of Ibn H. azm and the

sword of al- H. ajjāj were two brothers ( ), see 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. 202-204.25

O. A. Farrukh, “Z.āhirism,” p. 286.26

Though some people of Majorca island followed him during his stay there

from 430/1039 to 440/1049, the majority of them did not follow him, despite the fact

that he was supported by Abū ’l-‘Abbās ibn Ah.mad ibn Rashīd, the local governor

of that island. Ibid., p. 281.27

Al-Fad.l, Ibn H. azm’s son, said that his father’s writings reached four hundred

books, containing about eighty thousand folios. Al-Dhahabī, Tadhkirat, vol. 3, p.

1147.28

Ibid., p. 1152.29

The terms often used by Ibn H. azm in raising questions were:

(“if they say… we say…”); for examples, see Ih.kām, vol. 4, pp. 532 line 5, 533 line

9, and 544 line 18), (“if they say… it is said to them…”); for

examples, see ibid., vol. 1, p. 226 line 21, vol. 5, p. 637 line 5, vol. 8, p. 1152 lines 4-

5 and 6), (“if he [i.e., the speaker] says… it is said to him…); for

examples, see ibid., vol. 8, p. 1153 lines 8 and 13; idem, Fas.l, vol. 1, p. 107 lines 13-

26

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 … (“if they say … it is said to them…).

(Hereafter referred to as ‘Uddat al-Us.ūl). 30

A. L. Sharārah, Ibn H. azm al-Rā’id, p. 72.31

Abū H. anīfah, for example, after giving his legal judgement on a certain issue,

was asked: “Is that the truth where there is no doubt of it?” He answered: “I do not

know. Perhaps it is the falsehood where there is no doubt of it.” Abū Zahrah, Ibn

H. azm, p. 188.32

Ibid.33

Yet, this attitude was subjectively justifiable among Muslims when he argued

with non-Muslim opponents, for he was defending Islam which he considered the

true religion. Ibid., pp. 189-190.34

A. L. Sharārah, Ibn H. azm al-Rā’id, p. 64.35

Ibid.36

Ibid., p. 65.37

Ibn H. azm, Fas.l, vol. 2, p. 16.38

Qur’ān, 3:7 39

Ibid. The translation is based on the wording of Mohammed Marmaduke

Pickthall, The Meaning of the Glorious Koran (New York and Scarborough: George

Allen and Unwin Ltd., n.d.). He translates al-rāsikhūn fī ’l-‘ilm as “those who are of

sound instruction.” 40

Ibid. M.M. Pickthall translated the word mutashābihāt as “allegorical”

instead of “ambiguous”. Reference to Qur’ānic verses and translation relating to

them in other places of this book are mostly his.41

The other verse referred to by Ibn H. azm is:

And (remember) when Allah laid a charge on those

who had received the Scripture (He said): Ye are to expound it to mankind and not to

hide it….” (Qur’ān 3:187).42

Ibn H. azm, Ih.kām, vol. 4, pp. 492-493.43

A. L. Sharārah, Ibn H. azm al-Rā’id, p. 73. O. A. Farrukh, “Z.āhirism,” p. 275.44

Al-Shahrastānī, al-Milal wa ’l-Nih.al (in the margin of Ibn H. azm’s Fal),

vol. 2, p. 29. B. Carra de Vaux, “Bāt.iniyya,” S.E.I., pp. 60-61.45

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

1100.46

O. A. Farrukh, “Z.āhirism,” p. 275.47

For further details, see Al-Shahrastānī, Milal, vol. 1, pp. 54 ff; ‘Abd al-Qāhir

ibn T.āhir al-Baghdādī, al-Farq bayna’l-Firaq, ed. & comment. Ibn Khallikān,

27

Wafayāt al-A‘yān, ed., Muh.ammad Muh.y al-Dīn ‘Abd al-H. amīd (Cairo: Mat.ba‘at

al-Madanī, n.d.), pp. 114-202. (Hereafter referred to as Farq).48

O. A. Farrukh, “Z.āhirism,” p. 275; A. L. Sharārah, Ibn H. azm al-Rā’id, p. 73.49

Ibn H. azm considered the election of a boy for the position of caliph as

violation of the sharī‘ah. He referred to a h.adīth where the Prophet said that a child is

lifted from the obligation of Islam until he attains puberty; see Fas. l, vol. 4, p. 166.50

Ibid.; for further details, see A. L. Sharārah, Ibn H. azm al-Rā’id, pp. 65-67.51

Ibn H. azm, Ih.kām, vol. 1, p. 8.52

Ibn Khallikān, Wafayāt, vol. 3, pp. 14-15. In lyric poetry the poet often uses

the masculine gender instead of the feminine in referring to his beloved, as the above

poem of Ibn H. azm when he put “his beauty” () instead of “her beauty” () .53

This was rejected by Ibn H. azm. For him, shudhūdh (deviation) was only

being away from the truth, and the true school is the Z.āhirī; cf. below, pp. 72-73.54

Abū ’l-Fad.l ibn Manz.ūr, Lisān al-‘Arab, (Beirut: Dār Bayrūt lil-T.ibā‘ah wa

’l-Nashr, 1375/1956), s.v. j-m-‘; Edward William Lane, Arabic English Lexicon

(London and Edinburg: William and Norgate, 1863), s.v. j-m-‘.55

M.M. Pickthall puts it in the verse 72, for he makes at the beginning of the

su-rah (chapter) as one verse, whereas it is part of a verse, i.e., verse no. 1.56

Ibn Manz.ūr, Lisān al-‘Arab, s.v. j-m-‘; Majd al-Dīn al-Fīrūzābādī, Qāmūs

al-Muh.īt. (Egypt: Mat.ba‘at al-Sa‘ādah, 1272/1855-6), s.v. j-m-‘. 57

Ibid.58

Ibn H. azm, Ih.kām, vol.1, p. 43. 59

Camille Mansour, l’Autorité dans la Pensée Musulmane: la Concept d’Ijmā‘

(Consensus) et la Problématique de l’Autorité (Paris: Librairie Philosophique J. Vrin,

1975), p. 67, n. 2. (Hereafter referred to as Autorité).60

Ibn H. azm, Ih.kām, vol.1, p. 4361

Idem, al-Muh.allá, ed. Ah.mad Muh.ammad Shākir, 11 vols. (Egypt: Mat.ba‘at

al- Nahd.ah, 1374 A.H.), vol. 1, p. 54. 62

Ahmad Hasan, “Ijmā‘, an Integrating Force in the Muslim Community,”

Islamic Studies 6 (Dec. 1967), p. 392. (Hereafter referred to as “Integrating Force”).63

Mohamad T. al-Ghunaimi, The Muslim Conception of International Law and

the Western Approach (The Hague: Martinus Hijhoff, 1968), p. 117. (Hereafter

referred to as Muslim Conception).64

See N.J. Coulson M.A., A History of Islamic Law (Islamic Surveys), vol. 2

(Edinburg: Edinburg University Press, 1971), p. 59. See also Fazlur Rahman, Islamic

Methodology in History (Karachi: Ripon Printing Press, 1965), p. 23.65

This is one example of Ibn H. azm’s adherence to the idea of rejecting z.ann

(doubt, conjecture, uncertainty) in religion, see Ih.kām, vol.4, p. 531.

28

66

See also Ibn H. azm’s view on the nature of ijmā‘ () in his Marātib

al-Ijmā‘ fī ’l-‘Ibādāt wa ’l-Mu‘āmalāt wa ’l-I‘tiqādāt (Cairo: Maktabat al-Qudsī,

1357 A.H.), p. 12. (Hereafter refered to as Marātib).67

Idem, Ih.kām, vol. 4, pp. 510-511; see also ibid., p. 529.68

Muh.ammad Idrīs al-Shāfi‘ī, Jimā‘ al-‘Ilm, ed. Ah.mad Muh.ammad Shākir

(Egypt: Mat.ba‘at al-Ma‘ārif, 1359/1940), pp. 65-66. Idem, al-Risālah, ed. comment.

Ah.mad Muh.ammad Shākir, 1st ed. (Cairo: Mat.ba‘at al-Babī al- H. alabī, 1358/1940),

no. 1559.69

Perhaps the words here should be read as we have

translated above to give sense to the sentence. Ibn H. azm, Ih.kām, vol.4, p. 511.70

Ibid. See also ibid., pp. 530-531. The words on p. 530 line 21 are

inverted and should be read to suit the definition given on p. 511.71

See the definition of the second type of ijmā‘ on p. 19 above. The other

condition of ijmā‘ is that it should be based on nas.s.. 72

Muh.y al-Dīn ibn ‘Arabī, the second treatise on the Z.āhirī school, Majmū‘

Rasā’il fī Us.ūl al-Fiqh, 1st ed. (Beirut: al-Mat.ba‘ah al-Ahliyyah, 1324 A.H.), p. 29.

(Hereafter referred to as Majmū‘ Rasā’il).73

‘Umar ‘Abd Allāh, Sullam al-Wus.ūl li-‘Ilm al-Us.ūl (Egypt: Dār al-Ma‘ārif,

1956), p. 198; Dr. Mukhtār al-Qād.ī, al-Ra’y fī ’l-Fiqh al-Islāmī, 1st ed. (Cairo:

Mat.ba‘at al-Fikrah, 1368/1949), 169. (Hereafter referred to as Ra’y). The word

on line 13 of this page is misprinted and should be read to suit the meaning of

the sentence.74

This ijmā‘, is called ijmā‘ us.ūlī. Camille Mansosur, Autorité, p. 67.75

Ibn H. azm, Ih.kām, vol.7, p. 982; Badrān Abū al-‘Aynayn Badrān, Us.ūl al-

Fiqh ([Egypt]: Dār al-Ma‘ārif, 1965), p. 216.76

In another version, instead of “and the prophets” it reads “and the believers,”

see Ibn H. azm, Ih.kām, vol.7, p. 985. For the other h.adīth, see ibid., p. 984.77

The application of qiyās from far‘ to as.l, Ibn H. azm aruges, is itself

prohibited by the adherents of qiyās. For further details, see, ibid., p. 986 ff.78

Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64. Al-Sharastānī mentions thirteen views

of al-Naz.z.ām which differ from those of other Mu’tazilīs; among them are his

rejection of ijmā‘ and his assertion of the imāmah of ‘Alī instead of Abū Bakr. For

further details, see Milal, vol. 1, pp. 67-74.79

Al-Ghazālī, al-Mustas.fá min ‘Ilm al-Us.ūl, 1st ed. (Cairo: al-Maktabah 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).80

Abū Bakr al-Sarakhsī. Us.ūl al-Sarakhsī, ed. Abū al-Wafā’ al-Afghānī , 2 vols

(N.p.: Dār al-Kuttāb al-‘Arabī, 1372 A.H.), vol. 1, p. 330.

29

81

Al-Shahrastānī, Milal, vol. 1, p. 72. In this case al-Naz.z.ām is leading towards

the view of the Shī‘ah considering the statement of the imām as h.ujjah. 82

Ibid., pp. 75-76. According to Ibn H. azm both forty and eighty lashes are

Sunnah and are ijmā‘ of the s.ah.ābah based on nas.s. . 83

Al-T.ūsī,‘Uddat al-Us.ūl, vol. 2, p. 64. 84

Ibid.85

For further details on al-T.ūsī’s argument in refuting the dalīls presented by

his opponents among the Sunnī jurists for the (the authority of ijmā‘), see

ibid., pp. 64-75.86

Ibid., pp. 75-76; for further details, see ibid., pp. 77 ff.87

S.ubh.ī Mah.mas.s.ānī, Falsafat al-Tashrī‘ al-Islāmī, trans. J. Farhat Ziadeh

(Leiden: E.J. Brill, 1961), p. 78. Amng the Shī‘ī jurists, ‘Alī al-Mushkīnī al-Ardabīlī

gives us four types of ijmā‘ according to the Shī‘ah, which are: a) the agreement of

the whole ‘ulamā’ including the imām, b) the agreement of some of them including

the imām, c) the agreement of all of them excluding the imām, and d) the opinion of

the imām alone; for further details, see al-Ardabīlī, Kitāb Mus.t.alah.āt al-Us.ūl (N.p.;

1383 A.H.), pp. 29 ff.88

For further details on al-T.ūsī’s argument in refuting qiyās, see‘Uddat al-

Us.ūl, vol. 2, pp. 89 ff. 89

Ibid., vol. 1, pp. 41-42.90

See n. 83 above.91

Ibn H. azm, Ih.kām, vol.4, p. 502. It is possible that people of different nature

agree on a matter on which they have the same level of perception, understanding,

and being readily grasped, but this, Ibn H. azm believes, is not ijmā‘ in the field of the

sharī‘a h. Ibid.92

Ibid.93

Ibid., vol. 4, pp. 502-503.94

The opponents who accept ijmā‘ are the majority of ‘ulamā’ among Sunnī

Muslims. For their argument in refuting the opinion of Ibn H. azm and those who

reject the occurrence of ijmā‘, see Muh.ibb Allāh ibn ‘Abd al-Shakūr al-Bihārī,

Musallam al-Thubūt, comment. ‘Abd al-‘Alī ibn Niz.ām al-Dīn al-Ans.ārī as Fawātih.

Rah.mūt in the lower part of al-Ghazālī, al-Mustas.fá, 1st ed. (Cairo: al-Maktabah 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)95

Bihārī, 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)

31

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. 143.97

For further details, see al-T.ūsī, ‘Uddat al-Us.ūl, vol. 2, pp. 65 ff. For the

Shī‘ah, the majority of Muslims had gone away from the true path since the death of

the Prophet, when they appointed and obeyed wrong rulers and deprived the rightful

ones, the descendants of the Prophet, of their right. This also indicates, according to

the Shī‘ah point of view, the fallibility of the Muslim ummah, except the Shī‘ah

community.98

bid., pp. 74-75; cf. below, pp. 72-7499

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