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Furthermore, Ibn H.azm contends that there are bad people in

Madīnah as well as in other cities. For instance, he maintains that in his time Madīnah was inhibited by the extremist Rawāfid.

(Deserters).131

Based on this contention, the agreement of this

kind of people could not be accepted, in Ibn H.azm’s view, in

spite of their living in Madīnah.

As for the validity of good people living in Madīnah,

whom the Mālikīs claim to have special privilege, Ibn H.azm

refuses this stand and wonders where they got this privilege

which was not available to the people of other cities.132

Just as he refutes the first argument advanced by the Mālikīs, so he

does with the remaining arguments. Ibn H.azm maintains that the

s.ah.ābah knew more about the ah.kām (sing. h.ukm) put forward

by the Prophet than the people of Madīnah. They knew the

Prophet’s last deeds, they knew the nāsikh and mansūkh without any preference whether they lived inside or outside Madīnah. To

refute the idea that any h.ukm could not be unknown to the

people of Madīnah who were the majority of the s.ah.ābah, Ibn

H.azm contends that this could only occur if his opponents find

an issue reported by all of the s.ah.ābah who were in Madīnah,

and every one of them gave his legal opinion on it. This, in Ibn

H.azm’s view, did not happen. There were legal opinions given

by some of them. In this case, it is possible, according to Ibn H.azm, that a h.ukm given by the Prophet was not known by a

group of s.ah.ābah, but known by one or more among them. This

is significant, because the element of majority is not actualized

and cannot be applied to Madīnah alone. Moreover, the s.ah.ābah

might stay in or leave Madīnah.133

Ibn H.azm contends further

that the above ijmā‘ is based either on ijtihād or tawqīf from the Prophet. If it were ijtihād of the s.ah.ābah or the people of

Madīnah, Ibn H.azm rejected ijmā‘ based on ijtihād; if it were

based on tawqīf, Ibn H.azm argues that should a h.ukm be known

by some s.ah.ābah inside Madīnah, they must have informed

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people outside the city, so that the knowledge of people inside

and outside Madīnah becomes equal. Had not they done so, then their ‘adālah would become nullified, and they would become

subject to the curse of Allah. Ibn H.azm is referring to the

Qur’ānic verse:

“Those who hide the proofs and the guidance which We revealed,

after We had made it clear in the Scripture, such are accursed

of Allah and accursed of those who have power to curse.”

(Qur’ān 2:159).

Since Allah protects them from this character, Ibn H.azm

contends the necessity of ijmā‘ of the people of Madīnah becomes void.

134 Ibn H.azm rejects the argument of the Mālikīs

and maintains that the Mālikīs are at fault because they adhere

blindly to the opinion of their imām, i.e., Mālik ibn Anas (d.

179/795).

One of many examples given by Ibn H.azm is that ‘Umar

read (chapter 84) and (chapter 32) of the

Qur’ān while he was delivering his khut.bah (Friday sermon),

and then he descended from the minbar (pulpit) and prostrated,

followed by the people of Madīnah. This practice, according to

Ibn H.azm, was not followed by the Mālikīs.135

Moreover, Ibn

H.azm argues, most of the forty issues which are considered by

Mālik as the ijmā‘ of people of Madīnah are disputable among the people of that city themselves.

136

It should be noted that al-Sarakhsī, like Ibn H.azm, rejects

the position taken by the Mālikīs on the same ground. Though al-Sarakhsī accepts the merits of Madīnah, yet he maintains that

these h.adīths apply exclusively to the age of the Prophet. As for

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the other ages, al-Sarakhsī rejects the merits of its people. He

maintains that in his time there is no place in the Muslim lands where people have so less knowledge, are so ignorant, and so far

removed from the motive of goodness than that of Madīnah. The

h.adīths mentioning the merits of Madīnah, in al-Sarakhsī‘s

view, refer to its condition in the time of the Prophet when the pilgrimage was enjoined, where Muslims gathered in the city,

while bad people and apostates did not settle there. Al-Sarakhsī

argued further, that the place could be protected though the people who were living in it were not on the right way. The

example given by al-Sarakhsī was the condition of Makkah

during the Year of the Elephant, when Allah protected the city from the invasion of Abrahah and his troops, though its

inhabitants were idolaters.137

In spite of Ibn H.azm’s attack on this type of ijmā‘, the

opinion of the people of Madīnah on the exact measure of mudd

and s.ā‘ is accepted unanimously by the whole ‘ulamā’.138

The

Madīnian mudd in the early period of Islam is 1.053 liter, if we

estimate that 77 kg wheat equals 100 liters. The Madīnian s.ā‘,

which equals four mudd is 4.2125 liters. However, the measurement of mudd in other Muslim cities is different.139

Ibn

H.azm contends that it is not the ijmā‘ of the people of Madīnah

which is accepted in this case, but the h.adīth which goes back to

the Prophet transmitted successively ( ) upon which there is

also disagreement among them. A Madinese, Mūsá ibn T. alh.ah

ibn ‘Abd Allāh was reported to have a different opinion on this

issue. On the other hand, Ibn H.azm contends that if the

acceptance of this issue should be extended to others, the opinion of the people of Makkah would more deserve to be

accepted. This is because the whole Muslim community agree to

accept their opinion upon the locations of ‘Arafah, Muzdalifah, Mina, etc.

140 Moreover, the opinion of the people of Madīnah

on the measure of mudd and s.ā‘ is accepted by Ibn H.azm, not

because it is the opinion of the people of Madīnah, but because

it is the minimum measure mentioned in the controversy. Some

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people, whom Ibn H.azm did not name, held the opinion that one

s.ā‘ equals eight pounds, others assume that it is more than that,

while the people of Madīnah maintain that it is five pounds and

more. Therefore, there is no disagreement among the ‘ulamā’ in the acceptance of this minimum measure of s.ā‘ .

We do not agree with Ibn H.azm in assuming that the

measure of the Madinian s.ā‘ is accepted by Muslims because it

is the minimum measure in the controversy. It is true that s.ā‘

equals 5 1/3 pounds in Madīnah and 8 pounds in Baghdad, but

the measure of the s.ā‘ is still the same, i.e., 4.2125 liters.141

This is because one Madīnian pound (rat.l) equals 1.5

Baghdādian one. The measurement of pound is also different in

other Muslim countries For example, one pound in Madīnah, Iraq (as well as Yemen), and Andalusia is respectively equals

609.375 g, 406.25 g, and 453.3 g.142

Although Ibn H.azm does not give us any details on the

measure of mudd, his opinion in this issue and of the s.ā‘ is not

different from any other school. This is because this issue is

accepted as a mutawātir report by the people of Madīnah,

handed down from the Prophet. An issue of this kind is considered h.ujjah by the four Sunnī schools. Abū Yūsuf from

the H.anafī school, after receiving the explanation of this matter

from Mālik, said that had this mutawātir report reached Abū

H. anīfah, he would have accepted it. This report of the people of

Madīnah is considered by Ibn Taymiyyah as the first category of ijmā‘ of the people of that city, which is, in Ibn Taymīyah’s

view, accepted by Muslims as h.ujjah. The second category of

this type of ijmā‘ is the earlier practice of the people of Madīnah

before the assassination of ‘Uthmān. According to Ibn Taymiyyah, this practice is accepted as h.ujjah by the Mālikīs,

the Shāfi‘īs, the H.anafīs, and apparently also H.anbalīs, as they

accepted the practice of the rightly-guided caliphs as h.ujjah.

The third category of this type of ijmā‘ is that in case two dalīls

contradicted one another in a certain issue, for example, two

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h.adīths or two qiyāses, and it is not known which of the two

h.adīths or qiyāses is arjah. (preponderant), but one of them is

practised by the people of Madīnah, the Mālikīs and the Shāfi‘īs

choose the practice of the people of Madīnah. Abū H...anīfah

does not have any preference for the practice of the people of Madīnah. In the H.anbalī school, Ibn Taymiyyah gives two

views: a) al-Qād.ī Abū Ya‘lá and Ibn ‘Aqīl (d. 513/1119) do not

choose the practice of the people of Madīnah; b) Abū ’l-Khat.t.āb

(d. 138/755-756) does, which is also the view Ah.mad ibn

H.anbal. Generally speaking, these three categories of ijmā‘ are

accepted by the jumhūr al-‘ulamā’. The fourth category of ijmā‘

mentioned by Ibn Taymiyyah is the late practice of the people of

Madīnah. This is not h.ujjah according to the H. anafīs, Shāfi‘īs,

and H.anbalīs. This is also the view of the effective defenders

of Mālikīs doctrines. Ibn Taymiyyah assumes that some Mālikīs in North Africa (al-Maghrib) consider it as h.ujjah. If this

assumption is true, this might also be true for the Mālikīs in

Andalusia whom Ibn H.azm attacks severely.143

In summary, the Mālikīs as we have seen are the advocates of this type of ijmā‘, and the position to which they adheres is in

sharp contrast with Ibn H.azm’s. Since Spain during Ibn H.azm’s

time adhered dominantly to the Mālikī school why does Ibn

H.azm reject the Mālikī position? The answer to this question

lies in the doctrinal and political rivalries between the Z.āhirī

and Mālikī doctors. Doctrinal rivalry, because Ibn H.azm

represents the Z.āhirī school, and it is known that the Z.āhirī s

adhere to the nas.s. as the only source of law in religion. Political

rivalry, because his motive is to demonstrate to the people and

rulers in his time the falsehood of the Mālikī jurists in following

their imām Mālik ibn Anas, instead of the Qur’ān and the Sunnah. This criticism can be interpreted to mean that Ibn H.azm

was actually denouncing Mālikī judges and rulers themselves.

In Spain the position of wazīr (vizier, minister) and qād.ī were

important ones and the Mālikī jurists did indeed occupy these

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positions. This was because the official madhhab to which the

rulers of Spain adhered during Ibn H.azm’s time was the Mālikī

madhhab. In the meantime, the rulers prevented Z.āhirī jurists

like Ibn H.azm from occupying judicial and non-judicial

positions in the government, because the Z.āhirī madhhab was

strange to them. By so doing, Ibn H.azm was expressing his

criticism against the religious orientation of his contemporary rulers and the Mālikī jurists who exercised taqlīd

144 instead of

ijtihād.

4. Ijmā‘ where no Challenge is Known

According to Ibn H.azm, this type of ijmā‘ was advocated

by the followers of the H.anafī, Mālikī, and Shāfi‘ī schools.

Unknown leaders of these schools maintain that if a legal judgement of a particular issue was put forward by a t.ā’ifah of

‘ulamā’, it becomes ijmā‘, provided that no ‘ālim has ever

challenged its legal authority.145

Ibn H.azm cites two reasons

for its legality: 1) the attribute of virtue, i.e., ‘ulamā’ involved

in the legal judgement belong to the people of grace and

religion (ا) whom Allah enjoins the believers to

obey; 2) the ‘ulamā’’s acceptance of the decision of the jurists

involved in the judgement. Therefore, the advocates of this

type of ijmā‘, as stated by Ibn H.azm, maintain that the absence

of any challenge indicates common agreement.146

But Ibn H.azm refuses to interpret the absence of challenge

of an ‘ālim to the judgement of the ‘ulamā’ involved as an

indication of common agreement. There are grounds for thinking that Ibn H.azm totally rejected the legality of this type

of ijmā‘, i.e. the ijmā‘ where no challenge is known. The

grounds for this are comprised of historical precedent, the use of

nas.s. as the basis of ijmā‘, and the tendency among mankind to

disagree in their daily life. Ibn H.azm is also uncertain whether

the legal judgement involved, in effect, spread out among the ‘ulamā’, because they have been scattered through dār al-Islām.

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Since this is the case, the absence of challenge, Ibn H.azm

contends, is highly unlikely to occur. Moreover, Ibn H.azm is

also uncertain whether the absence of disagreement can be

interpreted as positive agreement among the involved ‘ulamā’. Ibn H.azm also contends that there are ‘ulamā’ among jinn

(demons, genii), whom we do not know whether the legal

judgement concerned reaches them or not.147

For Ibn H.azm, the

absence of disagreement in a legal context can also be viewed as

a legitimate disagreement in the same context. One historical precedent which Ibn H.azm cites is the example concerning the

experience of the s.ah.ābī, Abū Ayyūb al-Ans.ārī.148

During the

caliphate of ‘Umar he stopped performing two rak‘ah after the

‘as.r (late afternoon prayer), while prior to that caliphate, he had

been consistently performing these two rak‘ahs. But after the

death of ‘Umar he returned to his previous practice. When he was asked why he stopped practising the two rak‘ahs during the

time of ‘Umar, but resumed it later on, he said that he did so

because ‘Umar beat people who performed it.149

Ibn H.azm

interpreted this example as a proof that the fear caused by ‘Umar’s beating was responsible for Abū Ayyūb’s suspension of

that prayer, and with the absence of such fear, he resumed it. It

follows that his fear is also the cause of his silence in concealing his disagreement with ‘Umar in the matter of the two rak‘ah

prayer.

In addition to fear, Ibn H.azm mentions other reasons,

among which is that the ‘ālim may maintain silence, because the

side of the truth is not yet visible to him. In other words, he does not know whether the legal judgement of the ‘ulamā’ which

reaches him is right or wrong, and therefore, he cannot

challenge it. His silence, then, does not mean his agreement. Another reason for maintaining silence of the ‘ulamā’ is that

they actually give their disagreement, but they do not reach us,

though they reach other people in other parts of Muslim countries. Therefore, we think that they are silent, while actually

they are not.150

This argument of Ibn H.azm also indicates his

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rejection of the ijmā‘ sukūtī (tacit ijmā‘), though he does not

deal with it in a special chapter in his book al-Ih.kām.

Ibn H.azm also disputes the meaning of agreement or

disagreement on the basis of textual consideration. In his view,

a nas.s. is the key for deciding whether or not the ijmā‘ has any

validity of its own. According to Ibn H.azm an ijmā‘ on nas.s. is

undoubtedly a valid one, because it involves yaqīn (certitude).

Other than the element of yaqīn, any ijmā‘ based on any notion such as z.ann and ra’y has to be rejected. Ibn H.azm cited verses

from the Qur’ān which indicate the invalidity of z.ann, such as

the following verses:

“When ye welcomed it with your tongues,

and uttered it with your mouths that whereof

ye had no knowledge, ye counted it a trifle.

In the sight of Allah it is very great.:”

(Qur’ān 24:15, italics mine);

“Lo! ye are those who argue about that

whereof ye have some knowledge. Why then

ye argue concerning that whereof ye have no

knowledge? Allah knoweth. Ye know not.”

(Qur’ān 3:66, italics mine).

Ibn H.azm contends that assuming the occurrence of ijmā‘ on a

particular issue simply because no challenge is known is a kind of z.ann. Therefore, ijmā‘ based on z.ann is also based on what

someone has no knowledge of. This practice is forbidden by

Allah, and therefore, this type of ijmā‘ has no legal value.151

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In addition, the same thing is true about human nature and its tendency to disagree on a common issue. In Ibn H.azm’s

view, disagreement is inherent in man and more dominant in

him than agreement is. This means that Ibn H.azm does not

wholly believe in the absence of disagreement in the ijmā‘

where no challenge is known. To support this belief Ibn H.azm

cites the following Qur’ānic verses:

“…, yet, they (mankind) cease not differing save him on whom

their Lord hath mercy; and for that He did create them...”

(Qur’ān 11:118-119).

These verses indicate the natural tendency of mankind to

disagree with others. So far, Ibn H.azm’s belief in the nature of

disagreement among mankind leads him to reject ijmā‘ based on other than nas.s.. The reason for this thinking is that a Muslim

cannot disagree to the nas.s..152

Ibn H.azm’s argument in refuting ijmā‘ where no

challenge is known indicates that he consistently takes into

account the nas.s. as the only basis of ijmā‘ and that he insists on

rejecting anything in religion based on z.ann. Moreover, through

his observation of man’s psychology and the Qur’ānic verses dealing with human nature, he is convinced that there is not a

single agreement without any challenge except ijmā‘ based on

nas.s., because disagreement is natural in man. As a historian, he

gives us examples which prove the invalidity of his opponents’ argument.

So far, we have been discussing Ibn H.azm’s view of ijmā‘

where no challenge is known. Now we shall look into his view of ijmā‘ where one challenge is known. This type of ijmā‘ is

considered as ijmā‘ by its advocates, in spite of the existence of

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a challenge to it. Ibn H.azm opposes this type of ijmā‘.

Compared to the previous type of ijmā‘ this type is less

important, due to the existence of one challenge. However, it had been dealt with and rejected by leading ‘ulamā’ before Ibn

H.azm, like al-Shāfi’ī (d. 204/820). But it is still important to

know the argument of rejecting this type of ijmā‘ from the

Z.āhirī point of view as presented by Ibn H.azm.

5. Ijmā‘ with One Challenge

The advocates of this type of ijmā‘ disregard the challenger and insist on its legality, because they consider the

one challenger as an isolated instance from the opinion of the

‘ulamā’ in general. Ibn H.azm, it will be seen, rejects this

opinion and insists that a single challenge is itself a disagreement on the ground that there is no unanimity of

opinion which constitutes the ijmā‘. Moreover, the challenger,

contrary to the emerging view of the ‘ulamā’, might very well be on the true side, for Ibn H. azm contends that religious truth

does not depend on the number or numbers of its adherence.

To begin with, Ibn H.azm raises the problem of this type of

ijmā‘ in the context of a statement by the H.anafī qād.ī Abū

H.āzim ‘Abd al-‘Azīz ibn ‘Abd al-H.amīd153

and the historian

Abū Ja’far Muh.ammad ibn Jarīr al- T.abarī on the disagreement

of the s.ah.ābī Zayd ibn Thābit with the first four caliphs as to

what to do with the remainder of the inheritance left by a dead

person. Unlike the four caliphs, Zayd ibn Thābit thinks that this

remainder of the deceased should go to bayt al-māl (public treasury).

154 But Abū H.āzim disregards this view because he

abolishes the law of giving the bayt al-māl a share in inheritance

and adheres to the opinion of the caliphs, namely, the remainder

of inheritance should go to the deceased’s relatives on the

maternal side () .155

Al- T.abarī’s view is not stated. We

only know that he disregards a single challenger in ijmā‘.156

Since Ibn H.azm treats the two eminent scholars together, we

77

assume that al- T.abarī probably shared with Abū H.āzim the

same view.

Ibn H.azm does not tell us his view on the issue of the

remainder of the inheritance. Nevertheless, there is enough

evidence to indicate that he disagrees with Abū H.āzim and al-

T.abarī and those who disregard a single challenge in the

occurrence of ijmā‘. He offers us three arguments by his

opponents defending this type of ijmā‘.157

One, the opponents of Ibn H.azm claim that a single challenge of ijmā‘ is shudhūdh

(deviation) and madhmūm (reprehensible), while following the

opinion of the community is desirable. Two, a good number of

h.adīths indicate the infallibility of the Muslim ummah (nation,

people) and the injunction to the Muslims to adhere to the majority. Three, through the application of reason they (i.e., the

opponents of Ibn H.azm) are uncertain whether or not a single

challenger of ijmā‘ belongs to the jamā ‘ah (community). While

they do not doubt that those who are challenged by the single challenger belong to the jamā ‘ah, it is reasonable for them to

follow the majority whom they are sure belong to the jamā ‘ah

rather than the single challenger, who has no such distinction. This is because they cannot accept the idea that a single person

could constitute a jamā ‘ah.

Why is a single challenge shudhūdh and madhmūm?

According to Ibn H.azm’s opponents who advocate this type of

ijmā‘, an ‘ālim who stands alone in challenging the jamā ‘ah is considered by them as deviating from it. Therefore, a single

opinion which challenges that of the jamā ‘ah, which is

considered deviation and something reprehensible, as shudhūdh in religious definition is meant to embrace deviation from the

jamā ‘ah, which is forbidden in matters relevant to the

sharī‘ah.158

Ibn H.azm rejects this view by stating that the shudhūdh is

not altogether a matter of deviation from the jamā ‘ah. Rather, it

77

means disagreement at the expense of religious truth () ,

and anyone who disagrees in the realm of religious truth is

himself shādhdh (a deviated opponent). Ibn H.azm differs from

Abū Sulaymān Dāwūd ibn Khalaf, the founder of the Z.āhirī

school, and the jumhūr of Z.āhirī ‘ulamā’ on the occurrence of

shudhūdh. According to Abū Sulaymān and the jumhūr of his school,

shudhūdh occurs when the ‘ulamā’ agreed upon an issue,

and having done so, one of them challenged the agreement after

he had agreed to it.159

Why does Ibn H.azm see shudhūdh in the context of truth

alone? For him, the justification for not defining shudhūdh

merely as the deviation of one ‘ālim from the rest of ‘ulamā’ arises from the idea that the one ‘ālim might be correct, and

truth cannot be shādhdh. He contends that if shudhūdh is

defined as the separation of one ‘ālim from the rest of ‘ulamā’ this is not acceptable for him, because if the ‘ālim mentioned

above is true in his opinion he will become mah.mūd (praised)

and mamdūh. (laudable). As shudhūdh is madhmūm

(reprehensible) it should be impossible for a person to be

mah.mūd and madhmūm at the same time. As an example, Ibn

H.azm mentions that all the s.ah.ābah disagreed with Abū Bakr in

his intention to fight the apostates, while he alone was right and the whole s.ah.ābah were wrong.

160

Ibn H.azm’s contention that the one ‘ālim might be correct,

and truth cannot be shādhdh is also indicated by his rejection of

the claim made by his opponents in the context of a series of unlimited numbers of shudhūdh, suggesting that either they

should stick to the provision of limitation, or they should not

give such limitation. Ibn H.azm contends that if it were the

former, then they would give false statement without introducing any dalīl, so that they themselves would become

shādhdh from the truth. On the other hand, if it were the latter,

then the number of shudhūdh would be extended until they turn

away from al-ma‘qūl (the reasonable) and the ijmā‘ of the

77

community; again they themselves would become shādhdh from

the truth.161

This view of Ibn H.azm on the position taken by his

opponents is linked with another consideration, i.e., the use of

h.adīths as reliable grounds to prove the infallibility of the

Muslim community, plus the injunction of the Prophet to the Muslims to adhere to the majority. So important is this

consideration that it largely accounts for Ibn H.azm’s challenge

to his opponents in this matter. As illustrative examples we

shall mention two h.adīths. The first h.adīth says:

“The community of Muhammad will never agree

on an error. Follow the majority. He who goes his own

way will also go his own way to hell.”162

The component element of the h.adīth focus on the

relationship of shudhūdh to the overriding nature of errors and

judgement by the majority. The opponents of Ibn H.azm judge

the contents of this h.adīth by responding that the h.adīth actually

refers to the infallibility of the community. This community by inference represents the majority of its members, whose

agreement is in effect an ijmā‘.163

Any opinion which isolates

itself from that of the majority (which is infallible) is automatically wrong and should be disregarded. One view

which agrees to the interpretation of Ibn H.azm’s opponents for

the h.adīth is preserved by al-Āmidī. They give an example that

if we say that Banū Tamīm protect their neighbours and give

hospitality to their guests this statement is to be interpreted to indicate that the majority of the Tamīmīs follow this practice,

and this by inference applies to the Tamīmī tribe as a whole.164

This view is not accepted by Ibn H.azm, because he throws

doubt upon the veracity of the h.adīth by disputing the reliability

77

of one of its chain of narrators, al-Musayyib ibn Wād.ih. by

name. Ibn H.azm contends that Ibn al-Musayyib is not a reliable

transmitter, because he falls into the category of munkar al-

h.adīth (a traditionist whose h.adīth gains no recognition).165

Ibn H.azm asserts that even if the above h.adīth were

sound, it would be irrelevant to the issue of an ijmā‘ based on

the opinion of the majority, so long as it indicates the necessity

for Muslims to follow the truth. The reason for underlining the truth as the h.adīth’s implication, is that Ibn H.azm interprets the

words (whoever deviates) in the h.adīth as

(whoever deviates from the truth), though the truth embraces

one person.166

But the first part of this h.adīth which has a

similar verse and constitutes a h.adīth in itself (i.e., “My

community will not agree on an error”) has been rejected by

several leading Orientalists, on the ground that al-Shāfi‘ī did not cite it as an argument for the validity of ijmā‘. Al-Shāfi‘ī did not

cite it either because he did not know it (as assumed by

Schacht), or he knew it, but he did not consider it genuine.167

Watt asserts that some Western critics consider it to be a forged

h.adīth intended to justify the validity of ijmā‘.168

In this

instance Ibn H.azm’s judgement in doubting the authenticity of

the above h.adīth cannot be totally ignored.

The second h.adīth cited by Ibn H.azm’s opponents says:

“O people, honour my s.ah.ābah, then the following generation

[i.e., the tābi‘īn], then the following of the following generation

[i.e., the tābi‘ī al-tābi‘īn]; afterwards falsehood will appear, so that

77

a man would swear before being asked and would bear witness before

being asked; whoever among you seeks the pleasure of Paradise, he

should follow the community; a man should not be alone with

a woman, for Satan would be the third of the two; Satan

can pursue one person, but stands far away from two;

whoever is displeased with his bad deeds and

pleased with his good ones is a believer.”169

According to Ibn H.azm’s opponents, this h.adīth justifies the

validity of ijmā‘ with one challenge, because it enjoined the Muslims to follow the

jamā‘ah. Moreover, one challenge in

ijmā‘ comes from one person whom Satan can pursue, while the

jamā‘ah is protected by Allah, because His hand is upon them. Again, Ibn H.azm is not sure of the soundness of this h.adīth,

because he asserts that it has not been reported by any

traditionist who makes the soundness of a h.adīth as the

condition of reporting it ( ( . But

Ah.mad hmad Shākir, the Egyptian qād.ī, asserts that Ibn

H.azm’s contention is false, and claims that the narrators of this

h.adīth were thiqāt (reliable authorities).170

Like to foregoing example, Ibn H.azm sees no relationship

between the implication of the h.adīth and the acceptance of

ijmā‘ under discussion. Moreover, the above h.adīth has no

bearing on religious questions (( 171

and should

not be taken in its wider context () . Ibn H.azm

adheres to this view, because he argues that by the reference to

Satan in the above h.adīth the Prophet would not mean that a

person who resides alone at home would be accompanied by Satan. He contends that if the above h.adīth were relevant to

religion and were accepted in its general meaning, falsehood

could be changed into truth. A person whose opinion differed

from that of other people, his opinion would be false, because as the h.adīth says, Satan can pursue him. But if his opinion was

backed by another one, this false opinion would turn into truth,

because Satan is away from the two. This is not the nature of

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religion, because false remains false even though it is backed by

thousands of people. Ibn H.azm contends further that the Prophet

would not have meant that Satan was away from infidels like the Jews, the Christians, or Muslim heretics, because they were

more than one person, or that they constitute the majority of

people. On the contrary, in Ibn H.azm’s view, the more they are

in number, the stronger is Satan with them than with one person.

172

Ibn H.azm was probably right in considering that the above

h.adīths have nothing to do with ijmā‘, but his views are

exaggerated. There is an indication that the Prophet warns his followers of separation from the Muslim community which

actually happened later. Every member of the community has

the right to express his opinion, but it does not mean that he has to leave the community. Moreover, difference of opinion is in

the nature of human beings. The solution is that everyone

among the community explains his argument honestly, for the sake of finding the truth, so that opponents can be convinced.

Otherwise, the opinion of the majority is to be accepted by all as

ijtihād of the ‘ulamā’, not as ijmā‘.

Furthermore, Ibn H.azm interprets the word jamā‘ah in the

h.adīth as reference to the jamā‘atu ’l-h.aqq (the community of

the truth). This jamā‘atu ’l-h.aqq, in Ibn H.azm’s view, has no

relation with the strength of its numerical order. In equating the jamā‘ah with jamā‘atu ’l-h.aqq, Ibn H.azm insists that they

constitute the minority of people. He cements his argument

with: 1) historical evidence, like the conversion of the Prophet’s

wife Khadījah to Islam; 2) nas.s. as based on the Qur’ān and the

Sunnah, all indicating that the believers constitute a minority and that though they are small in number, they belong to the

jamā‘atu ’l-h.aqq; 3) reason as exemplified by the non-believing

community, or by the Prophet’s relationship to his own

community.

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To be precise, the historical evidence cited by Ibn H.azm to

prove that the jamā‘ah intended in the second h.adīth is the

jamā‘atu ’l-h.aqq and that they belong to minority is the state of

the Prophet just after he was chosen as a prophet by Allah. At

this time he was the only person who belonged to the truth. The rest of the world were in falsehood. In this case it was the

Prophet alone whom people should follow, although the people

of his community were unbelievers and constituted the majority of people. When Khadījah converted to Islam she and the

Prophet belonged to the truth, because of his prophethood and

Khadījah’s acceptance of his message, while the majority of people opposing them were in falsehood. Similar evidence

mentioned by Ibn H.azm is the case of Zayd ibn ‘Amr ibn

Nufayl, who lived in pre-Islamic Arabia, and who refused to

worship idols instead of Allah. Because of this attitude he was the only person in his time who belonged to the truth, and

according to a h.adīth, he would be raised on the Judgement Day

as an ummah (a nation, a community, people) in itself.173

It was

narrated by Jābir ibn ‘Abd Allāh that the Messenger of Allah was asked about the case of Zayd ibn ‘Amr ibn Nufayl who

faced the Ka‘bah and said:

"O Allah, my god is the god of Abraham,

and my religion of the religion of

Abraham, peace be upon him",

then prayed and prostrated. The Prophet said:

"This [person] is a nation by himself,

he will be assembled [in the Resurrection Day]

between me and ‘Isa ibn Maryam,

peace be upon him.".174

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

175

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There are a good number of Qur’ānic verses and prophetic traditions which Ibn H.azm uses to support his contention that

the jamā‘atu ’l-h.aqq belongs to minority. In the course of his

presentation Ibn H.azm cites four verses and seven h.adīths. Of

this total, the verses revolving around the term mu’minīn

(believers) and the h.adīth equally relating to it constitute the

focus of this argument. We shall first cite two nas.s.es and then

present the analysis. One Qur’ānic verse occurs in sūrat Yūsuf

(chapter 12) verse 103, which belongs to the Makkan period and relates a group of people (nās) to the term mu’minīn, and does

not refer to jamā‘atu ’l-h.aqq. This verse runs as follows:

“And although thou try much,

most men will not believe.”

(Qur’ān 12:103).176

Ibn H.azm‘s comment on this verse is limited in two

points: 1) that the believers are meant to be the jamā‘atu ’l-h.aqq; 2) that the latter, in turn, constitutes a minority. This

view of Ibn H.azm is shared by qād.ī ‘Abd al-Jabbār (d.

415/1025) who maintains that the greatness in number of the

upholders of an opinion does not indicate that it is true, nor that

the smallness in number indicates its falsehood.177

Ibn H.azm

defines jamā‘atu ’l-h.aqq as people who follow the Qur’ān and

the genuine h.adīth of the Prophet ( ) . Ibn H.azm

means that believers who mistakenly follow a forged or an

unsound h.adīth do not belong the jamā‘atu ’l-h.aqq, and

therefore, they should not be followed by other believers.178

The other verses quoted by Ibn azm to indicate that the

jamā‘atu ’l-h.aqq belong to minority are as follows:

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“…, save such as believe and do good

works, and they are few.”

(Qur’ān 77:77).

“…but most of mankind know not.”

(Qur’ān 12:21, 40, and 68).

“…If thou obeyedst most of those on earth

they would mislead thee ...”

(Qur’ān 6:116).

The h.adīths which Ibn H.azm cites as a proof to support

his stand revolves around the key-word mu’minīn and jamā‘atu

’l-h.aqq. Moreover, Ibn H.azm believes that the h.adīths as

naes give vidence to the meaning derived from the verse.

Among these h.adīths are as follows:

“The Doomsday will not come upon

someone who says ‘there is no god

but Allah’ [i.e., a believer]”.

“Verily, the Doomsday will not come except upon

those who have no good with them.”

From these h.adīths Ibn H.azm extracts two points: 1) a

believer belongs to jamā‘atu ’l-h.aqq, and 2) this jamā‘ah

belongs to a minority, as the number of believers will diminish before Doomsday; and during that day, there would be no

believer.

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As for his reasons, Ibn H.azm argues that the only possible

meaning of the jamā‘ah whom the Muslims should follow is the jamā‘atu ’l-h.aqq, i.e., the Muslim community in its general

meaning, because non-believers which are also jamā‘āt (sing.

jamā‘ah) should not be followed by Muslims, though they

constitute the majority of people. In its particular meaning, jamā‘atu ’l-h.aqq means any group that follows the Qur’ān and

the genuine h.adīths of the Prophet, because Muslims themselves

are divided into jamā‘āt. The heretics among them are excluded

from the jamā‘atu ’l-h.aqq, while the Sunnīs are divided into

jamā‘āt, i.e., the H.anafī, Mālikī, Shāfi‘ī, and H.anbalī schools,

as well as the people (followers) of Tradition () , and

none of them deserves more to be jamā‘atu ’l-h.aqq than the

others, because of their equality in authenticity.179

For evidence by reason, Ibn H.azm states the view of his

opponents on the issue whether the one challenger of ijmā‘

belongs to the Muslim ummah. Dissociating with this one

challenger, they assert that those who participate in ijmā‘ belong to the Muslim ummah whom every Muslim should follow. With

regard to the one challenger, they doubt he belongs to that

ummah. They contend that it is reasonable to follow those whom they are sure belong to the Muslim ummah rather than

those whom they doubt belong to it.180

But Ibn H.azm rejects

this view, because he maintains that it is disobedience to Allah,

who enjoins Muslims to refer to the Qur’ān and the Sunnah whenever a dispute arises. He is referring to the Qur’ānic verse

which reads:

“…; and if ye have a dispute concerning any matter,

refer it to Allah and the messenger…”

(Qur’ān 4:59).

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The existence of one challenge is a legal and binding dispute

according to Ibn H.azm and it cannot be disregarded.

To sum up, what Ibn H.azm wants to prove is that the

notion of religious truth in Islam has noting to do with the

number of people who adhere to it. While his proofs are largely

a combination of Qur’ānic verses and Prophetic traditions, and while reference to the Z.āhirī school is not evident, this may be

because he found that the true madhhab corresponds with the

Z.āhirī to which he belongs and represents. Hence, his strong

attempt at propagating and defending it is obvious. It should be

recalled that this school applies the nas.s. of the Qur’ān and the

Sunnah as proofs to implement sharī‘ah and reason. It is nas.s. which guides reason to find the religious truth. Reason alone is unreliable in its judgement, because it is merely a worker, and

not a ruler.

The difference between this type of ijmā‘ and the previous

one is that this type of ijmā‘ is less important than ijmā‘ where

no challenge is known, because the existence of one challenge in ijmā‘ causes the loss of its unanimity, which is a condition for

the agreement in the occurrence of ijmā‘ brought about by the

majority of ‘ulamā’.

We have discussed and anylized Ibn H.azm’s argument in

refuting ijmā‘ with one challenge. We have also discussed Ibn H.azm’s view about ijmā‘ on what is known by necessity, ijmā‘

of the s.ah.ābah, ijmā‘ of the people of Madīnah, and ijmā‘

where no challenge is known. Ijmā‘ on what is known by

necessity is the strongest one in Ibn H.azm’s view, as no Muslim

will remain Muslim if he denies it. Ijmā‘ of the s.ah.ābah is the

second ijmā‘ accepted by Ibn H.azm, where no s.ah.ābī denies it.

Ijmā‘ of the people of Madīnah is rejected by Ibn H.azm,

because, in his view, the people of that city have no privilege

over other people in other cities. Ijmā‘ where no challenge is known is also rejected by Ibn H.azm on the basis that knowing

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the opinion of the whole ‘ulamā’ other than the s.ah.ābah in a

certain issue is impossible due to their greatness in number.

Likewise, knowing the existence or non-existence of any challenge to this type of ijmā‘ is also impossible.

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131

Ibn H. azm, Ih.kām, vol. 4, pp. 554. The Rawāfid. (sing. Rāfid.ah)

was originally applied to groups of soldiers who have deserted their

leader. It was applied to a certain sect of the Shī‘ah of Kūfah who

deserted Zayd ibn ‘Alī ibn al- H. usayn ibn ‘Alī when he refused to speak

against Abū Bakr and ‘Umar, for he said: “Both were ministers of my

grand-father Muhammad.” The term Rawāfid. is also applied by Sunnī

Muslims to any sect of Shī‘ah. Finally, it is applied to apostates or

schismatics who speak against the s.ah.ābah.132

Ibid.

133Ibid., pp. 554-555

134Ibid., pp. 558-559.

135Ibid., vol. 4, pp. 556-557; vol. 6, p. 878.

136Ibid.. vol. 4, p. 558; vol. 6, p. 879.

137For further details, see al-Sarakhsī, Us.ūl al-Sarakhsī, vol. 1, pp.

314 ff. Unlike al-Sarakhsī, Ibn Taymīyah and Ibn Qayyim al-Jawziyyah

from the H. anbalī school lean to the Mālikī position. As for the argument

of Ibn Taymiyyah for the ijmā‘ of the people of Madīnah, see S.ih.h.at

Us.ūl, pp. 17 ff; for the opinion of Ibn Qayyyim al-Jawziyyah, see, I‘lām

al- Mūqi‘īn, vol. 2, pp. 434 ff.138

Ibn Taymiyyah, S.ih.h.at Us.ūl, p. 23. 139

For further details, see Walther Hinz, Islamische Masse und

Gewichte, Handbuch der Orientalistik, ed. Bertold Spuler, suppl. Vol. 1,

book 1 (Leiden: E.J. Brill, 1955), pp. 45-47 and 51. (Hereafter referred to

as Islamische Masse). 140

Ibn H. azm, Ih.kām, vol. 6, p 876.141

See W. Hinz, Islamische Masse, p. 51.142

For further details on pound (rat.l ), see ibid., pp. 28-33.143

Fur further details, see Ibn Taymiyyah, S.ih.h.at Us.ūl, pp. 23-27;

see also Muh.ammad al-Khud.arī, Us.ūl al-Fiqh, 4th

ed. (Cairo: Mat.ba‘at

al-Sa‘ādah, 1382/1962), pp. 304-307.144

Ibn H. azm denounces taqlīd. For his arguments against taqlīd,

see Ih.kām, vol. 6, pp. 793 ff.145

Ibid., vol. 4, p. 531. This type of ijmā‘ had been alluded by al-

Shāfi‘ī, see Jimā‘ al-‘Ilm, pp. 60-64. 146

Ibn H. azm, Ih.kām, vol. 4, p. 531.147

Ibid., p. 535.148

Abū Ayyūb was one of the s.ah.ābah, who gave their futyā

(fatwá, formal legal opinion) in one or two issues only. Ibid., vol. 5, p.

666 line 21; idem, Jawāmi‘, p. 320.

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149

It is important to remember that the Prophet recommended that

people perform sunnah prayers at home. Moreover, when his house and

mosque were being built in Madīnah he lived temporarily in the house

of Abū Ayyūb. Idem, Jawāmi‘, p. 95. Perhaps during this time he saw

the Prophet performing this two rak‘ah prayer. For further details, see

idem, Ih.kām, vol. 4, pp. 536-537.150

For further details, see ibid., p. 537.151

Ibid., pp. 533-534. For further arguments of Ibn H. azm in

refuting al-z.ann, see ibid., vol. 1, pp. 117 ff passim.152

Ibid., vol. 4, pp. 502-503.153

It is probable that instead of ‘Abd al-‘Azīz ibn ‘Abd al-H. amīd,

the correct name of this H. anafī qad.ī was Abū H. āzim (or Abū Khāzim)

‘Abd al-H. amīd ibn ‘Abd al-‘Azīz. He died in 292/904. See Abū Ish.āq al-

Shīrāzī, T.abaqāt al-Fuqahā’, ed. Dr. Ih.sān ‘Abbās (Cairo: Dār al-Rā’id

al-‘Arabī, 1970, p. 141.154

Ibn H. azm, Ih.kām, vol. 4, p. 544; vol. 1, p. 180.155

Ibid., p. 544156

Ibid.157

Ibn H. azm does not give us the argument of Zayd ibn Thābit, but

he does criticize his opponents among the Mālikīs and Shāfi‘īs for

following Zayd ibn Thābit. Ibn H. azm does not believe in the soundness

of the h.adīth claiming that “Zayd is the most learned man among you on

the law of inheritance ) ).” Ibn H. azm contends that if this

h.adīth were sound it would be against his opponents themselves, because

it goes on with “… and Mu‘ādh is the most learned among you in Islamic

jurisprudence ( ) .” This is because they do not follow Mu‘ādh

in his fatwá dealing with the penalty of death upon apostates (without

asking them to repent) and the legality of inherited property by a believer

from a non-believer. Ibid., vol. 6, pp. 819-820.158

Ibid., vol. 4, p. 544; vol. 5, p. 661.159

Ibid., vol. 5, p. 661. 160

Ibid.161

Ibid., p. 622. This is in the main the style of Ibn H. azm. He cites

other examples, too. For details, see his arguments on the issue regarding

the number of chains of transmitters in the khabar al-tawātur. Ibid., vol.

1, p. 95.162

This h.adīth is a combination of three of h.adīths, totally cited by

a single chain of narration, see ibid., vol. 4, p. 545. The first one, “The

community of Muhammad will never agree on an error” was cited by

many h.adīth collectors, but with different versions, (i.e., “My

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community…” instead of “The community of Muhammad…”), among

which are al- Bukhārī in his al-Jāmi‘ al-S.ah.īh. (Kitāb al-Fitan), al-

Tirmidhi’s al-Jāmi‘, (the chapter dealing with Fitan), Ibn Mājah’s

Sunan (chapter Manāsik Fitan), Ah.mad ibn H. anbal’s Musnad, IV, 101

and V, 145; another version was also cited by al-Ghazālī, al-Must.ass.fá,

vol. 1, p. 175. The second h.adīth was cited by Ibn Mājah in his chapter

on the nature of Fitan. The third h.adīth with a similar version was

cited by al- Ghazālī, see ibid.163

Ibn H. azm, Ih.kām, vol. 4, p. 545.164

Al-Āmidī, Ih.kām al-Āmidī, vol. 1, p. 339.165

bn H. azm, Ih.kām, vol. 4, p. 545.166

Ibid. 167

Joseph Schact, The Origins of Muhammadan Jurisprudence

(Oxford: Clarendon Press, 1950), p. 91; George F. Hourani, “Basis of

Authority,” pp. 157-158.168

W. Montgomery Watt, Islam and the Integration of Society

(London: Routledge & Kegan Paul, [c. 1961]), p. 204 as quoted by A.

Hasan, The Early Development of Islamic Jurisprudence (Islamabad:

Islamic Research Institute, 1970), p. 157.169

Ibn H. azm, Ih.kām, vol. 4, p. 545.170

Ibid., p. 546. This is one of many sound h.adīths which is

considered weak by Ibn H. azm. Sound h.adīths are disputed by Ibn H. azm,

either through finding weak narrators in their sanad, or through his

investigation on the matn (text) of h.adīths, like the one mentioned above.

For sound h.adīths which are doubted by Ibn H. azm, see ibid., vol. 5, p.

702; vol. 6, pp. 764, 809, 820, 1003, and 1015.171

Ibid., vol. 4, pp. 548-549. Notice that Ibn H. azm repeats the

words three times during the course of his argument, see

ibid., pp. 548 (line 26) and 549 (lines 18 and 26).172

Ibid.173

Ibid., pp. 546-547. Another proof to justify the possibility of

considering a person who belongs to the truth as an ummah which is not

used by Ibn H. azm is the following Qur’ānic verse,

“Lo! Abraham was a nation

(ummah), obedient to Allah, by nature upright, and he was not of the

idolaters.” (Qَur’ān 16:120).174

Ibn Banī ‘Āim, al-Āād wa ’l-Mathānī, vol. 2, p. 363 (al-

Maktabah al-Shāmilah).

77

175

Qurt.ubī, Abū ‘Abd Allāh Muh.ammad ibn Ah.mad al-Ans.ārī al-.

Al-Jāmi‘ li Ah.kām al-Qur’ān. 20 vols in 10 bindings. (Beirut: Dār Ih.yā’

al-Turāth al-‘Arabī, 1967), vol. 10, p. 172 (al-Maktabah al-Shāmilah). 176

Ibid., p. 547. 177

‘Abd al-Jabbār, Sharh. al-Us.ūl, pp. 61-62.178

Ibn H. azm, Us.ūl, vol. 4, p. 548.179

Ibid.180

Ibid., p. 550.