2
known in religion by necessity cannot be denied by any Muslim as long as
he remains so. Moreover, the s
.
ah
.
ābah are those who witnessed the
teachings of the Prophet. Ibn H
.
azm contends that their testimony is
accepted, because they are reliable and people promised with Paradise.
Ibn H
.
azm rejects the ijmā‘ of a later age because the reliability of people
other than the
s
.
ah
.
ābah must be investigated. Moreover, Ibn H
.
azm does
not believe in the possibility of the occurrence of ijmā‘ other than that of
the
s
.
ah
.
ābah, because the ‘ulamā’ (learned people) of the Muslim
community had become scattered outside Madīnah in various Muslim
lands.
This thesis, therefore, attempts to define Ibn H
.
azm’s concept of
ijmā‘ and to compare it to the ijmā‘ formulated by his contemporary
orthodox jurists. In order to develop this theme we shall divide this thesis
into two chapters: historical and judicial. The first chapter deals with the
historical background of Ibn H
.
azm and the problems on the life and time
of Ibn H
.
azm. This has been done by Muh
.
ammad Abū Zahrah, Sa‘īī d al-
Afghānī, ‘Abd al-Lat
.
īf Sharārah, R. Arnaldez, and others.
5
However, we
shall provide a short synopsis of Ibn H
.
azm’s life in order to better
understand the legal issues relating to this thesis.
The second chapter of this thesis deals with the judicial background
of Ibn H
.
azm’s view of ijmā‘. Unlike the opinions of the majority of
jurists, Ibn H
.
azm only accepts the occurrence of ijmā‘ during the time of
the
s
.
ah
.
ābah, and he insists that ijmā‘ must be based on nas
.
s,
.,
i.e., texts
from the Qur’ān and the Sunnah. The Qur’ānic verses which are used by
jurists as arguments for the validity of ijmā‘ are interpreted by Ibn H
.
azm
as ijmā‘ based on nas
.
s
.
. The argument of Ibn H
.
azm in taking this stand is
that since Allah revealed that He had perfected the religion of Islam, it
follows that whatever Allah and His Messenger did not mention (as
something forbidden) in the Qur’ān and the Sunnah respectively is
permissible. Therefore, Ibn H
.
azm argues, any h
.
ukm (legal judgement)
which is not based on nas
.
s
.
, but is the product of qiyās (analogy), is an
innovation in religion. Moreover, Ibn H
.
azm denies the existence of ‘illah
(cause) for the issue of laws in religion. All these points will be discussed
in the second chapter, particularly in relation to the Z
.
āhirī school.
3
Endnotes
1
Muh
.
ammad Abū Zahrah, Ibn H
.
azm: H
.
ayātuhu wa ‘As
.
ruhu, Ārā’uhu wa
Fiqhuhu (Cairo: Dār al-Fikr al-‘Arabī, n.d.), pp. 362-3. (Hereafter referred to as Ibn
H
.
azm).
2
2
‘Abd al-Lat
.
īf Sharārah, Ibn H
.
azm: Rā’id al-Fikr al-‘Ilmī (Beirut: Manshūrāt
al-Maktab al-Tijārī li ’l-T
.
ibā‘ah wa ’l-Nashr wa ’l-Tawzī‘, n.d.), pp. 63-76.
(Hereafter referred to as Ibn H
.
azm al- Rā’id). Dr. Zakarīya Ibrāhīm, Ibn H
.
azm al-
Andalusī: al-Mufakkir al-Z
.
āhirī al-Mawsū‘ī
(Cairo: al-Dār al-Mis
.
rīyah lil-Ta’līf wa
’l-Tarjamah, n.d.), pp. 180 ff. (Hereafter referred to as Ibn H
.
azm al-Mufakkir)
3
Sunnah literally means “custom,” “use.” According to Muslim jurists the
Sunnah of the Prophet is his practice, including his statements, deeds and tacit
approvals. Sunnah also means “meritorious.” In order to make distinction between
these two kinds of Sunnah we shall use in this study the word “Sunnah” with capital
“S” to indicate its first meaning, i.e., the practice of the Prophet. Ibn H
.
azm gives the
following definition of Sunnah: “It is the sharī‘ah (the canonical law of Islam) itself.
Its root-meaning is ‘the aspect and the external appearance of something ) و ءﻲﺸѧﻟا ﻪѧﺟو
ﻩﺮѧهﺎﻇ( .’” He classifies the Sunnah into five categories: fard
.
(injunction), nadb
(recommended, which is synonym of sunnah), ibāh
.
ah (permission), karāhiyah
(reprehension), and tah
.
rīm (prohibition). Ibn H
.
azm contends that these five
categories of Sunnah had been established by the Prophet from Allah. See Ibn H
.
azm,
al-Ih
.
kām fī Us
.
ūl al-Ah
.
kām, 8 vols. (Cairo: Mat
.
ba‘at al-Imām, n.d.), vol. 1, p. 43.
(The volume number will not be omitted, even though the page numbers are
continuous in these volumes. Hereafter the book will be referred as Ih
.
kām). In this
definition of Sunnah Ibn H
.
azm stresses its signification as laws prescribed by the
Prophet through his statements, deeds, and approvals, which were later accepted as
legally binding precepts. Ibn H
.
azm sometimes mentions Sunan (sing. Sunnah)
probably to indicate the embodiment of these five categories of Sunnah, or as the
synonym of h
.
adīths. For other definitions of Sunnah, see below p. 45, n. 36.
4
Ibn H
.
azm gives the following definition of nas
.
s
.
: “It is the word mentioned in
the Qur’ān or the Sunnah through which legal judgement of things is proven (or
reached), and which is nothing else than the wording of the text itself. Nas
.
s
.
may also
be applied to any (every) word (text) quoted in the very words of the one who uttered
it.” Ibn H
.
azm, Ih
.
kām, vol., p. 39.
5
Sa‘īd al-Afghānī in his book, Ibn H
.
azm al-Andalusī
wa Risālatuhu fi ’l-
Mufād
.
alah bayn al-S
.
ah
.
ābah (Damascus: al-Mat
.
ba‘ah al-Hāshimīyah, 1359/1940),
pp. 9-150. (Hereafter referred to as Ibn H
.
azm wa Risa
-
latuhu); idem, “Ibn H
.
azm fī
Siyar al-Nubalā’,” Majallat al-Majma‘ al-‘Ilmī al-‘Arabī
(Damascus, 1360/1941), pp.
4
400 ff; Roger Arnaldez, “ Ibn H
.
azm,” Encyclopaedia of Islam, 2
nd
ed. (Leiden: E.J.
Brill; London: Luzac & Co., 1971), vol. 3, pp. 790-9. (Hereafter referred to as “ Ibn
H
.
azm,” E. I. 2).
5
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 1604. 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 (ﻪﺗﺮﻬﺷ) 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
6
This early phase of Ibn H
.
azm’s life lasted until he reached the age of
fourteen, when disturbances occurred in the country. There was civil war,
a struggle for power between Andalusians, Berbers, and Slavs which
started in 398/1008. The Umayyad caliph Hishām II al-Mu’ayyid bi-Allāh
was only a nine year boy. The power was in the hands of H
.
ājib al-
Mans
.
ūr ibn Abī ‘Āmir to whom Ibn H
.
azm’s father became the vizier.
4
Ibn H
.
azm’s family was compelled to move westward for safety, and they
moved to their house at Balāt
.
Mughīth. Hishām II was overthrown and
replaced by Muh
.
ammad II al-Mahdī. Ibn H
.
azm’s father, Ah
.
mad, who
had plotted against the Slavs, was imprisoned, and his possessions were
confiscated by the Slav general Wād
.
ih
.
. Although Muh
.
ammad II al-
Mahdī was later assassinated and Hishām II retained his throne, it did not
affect the fate of Ah
.
mad, who died in 402/1012. A year later, another
disaster happened to Ibn H
.
azm. The house of his family at Balāt
.
Mughīth was destroyed by the Berbers. In the next year (404/1013-4) Ibn
H
.
azm took refuge in Almeria. He was then a young man of twenty.
Three years later, being suspected of making pro-Umayyad propaganda, he
was imprisoned with his friend Muh
.
ammad ibn Ish
.
āq by the governor of
the city, Khayrān. Khayrān and his ally, ‘Alī ibn H
.
ammūd, has
successfully overthrown the Umayyad caliph, Sulaymān.
5
With his friend Muh
.
ammad ibn Ish
.
āq, Ibn H
.
azm then went to a
town called H..
.
is
.
n al-Qas
.
r. A few months later they learned that ‘Abd
al-Rah
.
mān IV al-Murtad
.
á, the Umayyad claimant to the caliphate, had
been proclaimed caliph of Valencia, and was raising an army against the
Berbers in Cordova. As a pro-Umayyad, Ibn H
.
azm and his friend
Muh
.
ammad ibn Ish
.
āq went to Valencia by sea and joined the army of al-
Murtad
.
á. Al-Murtad
.
á appointed Ibn H
.
azm as his vizier. The army
marched towards Granada. In the battle that ensued between al-
Murtad
.
á’s army and that of the Berbers, Ibn H
.
azm was taken prisoner
and then released.
6
In 409/1018 Ibn H
.
azm returned to Cordova. The caliph at that time
was al-Qāsim ibn H
.
ammūd, who was backed by the Berbers. When he
was overthrown by ‘Abd al-Rah
.
mān V al-Mustaz
.
hir bi-Allāh in 414/1023
7
Ibn H
.
azm was appointed a vizier. Unfortunately for Ibn H
.
azm, al-
Mustaz
.
hir was murdered seven weeks later, and he was again
imprisoned.
7
In 418/1027, at the age of thirty-four, Ibn H
.
azm appeared at Jativa.
He later became vizier again under caliph Hishām III al-Mu‘tadd bi-Allāh.
But when the Umayyad caliphate lost its power forever in Andalusia in
422/1031 with the assassination of caliph Hishām III Ibn H
.
azm turned to
writing books and teaching religion.
8
He remained occupied with this
work, defending his Z
.
āhirī school and the Umayyad claim for the
caliphate, and attacking his opponents in his writings and teachings, for the
rest of his life. More than thirty years later, Ibn H
.
azm died at the age of
seventy-two in 456/1064 at his ancestral village Manta Lisham.
9
2. Ibn H
.
azm’s Contact with Religious Scholars
Ibn H
.
azm began studying the religious sciences at an early age. He
studied H
.
adīth (Prophetic Tradition)
10
before he reached the age of
seventeen. He used to attend the sessions of the ‘ulamā’, accompanied by
his tutor, Abū al-H
.
usayn ibn ‘Alī al-Fārisī.
11
Since Ibn H
.
azm lived in
Andalusia where the Mālikī school was dominant, it was a matter of
course that he learned the fiqh (jurisprudence) of the Mālikī school. He
studied Mālik’s al-Muwat
.
t
.
a’ under ‘Abd Allāh ibn Dah
.
h
.
ūn, a Mālikī
jurist in Cordova. Ibn H
.
azm also studied fiqh from the qād
.
ī (judge) of
Valencia, Ibn al-Fard
.
ī.
12
Ibn H
.
azm was a truth seeker. He was not satisfied with the teachings
of Mālik. We are told that Ibn H
.
azm said that he loved Mālik, but he
loved truth more. This may indicate that Ibn H
.
azm had read al-Shāfi‘ī’s
criticism of Mālik. Gradually, Ibn H
.
azm began to lean towards the
Shāfi‘ī school, until finally he attached himself to the al-Shāfi‘ī school.
13
Hence he began to differ from the people of Andalusia in general and their
‘ulamā
’ in particular.
To increase his knowledge of Islamic law, Ibn H
.
azm read books
written by scholars of different schools. He read the book of Ibn
8
Umayyah, a Shāfi‘ī jurist, on laws of the Qur’ān ( نﺁﺮѧﻘﻟا مﺎѧﻜﺣأ), and the
Qur’ānic exegesis ( نﺁﺮѧﻘﻟا ﺮﻴﺴѧﻔﺗ) of Abū ‘Abd ‘Abd al-Rah
.
mān Baqī ibn
Mukhlad, an ‘ālim (a learned man, a scholar) who did not attach himself to
any madhhab (school of law). This Qur’ānic exegesis was considered by
Ibn H
.
azm as the best of its kind. Ibn H
.
azm also read the Z
.
āhirī book on
laws of the Qur’ān by a Z
.
āhirī qād
.
ī, Abū al-H
.
akam Mundhir ibn Sa‘īd,
and studied Z
.
āhirī fiqh under the Z
.
āhirī jurist Abū al-Khiyār Mas‘ūd ibn
Sulaymān ibn Muflit.
14
Through further reading Ibn H
.
azm found himself leaning towards
fiqh based exclusively on the Qur’ān and the Sunnah, which was also the
fiqh of the Z
.
āhirī school. Later on, Ibn H
.
azm became a Z
.
āhirī, reviving
a vanished school founded by Abū Sulaymān Dāwūd in Iraq about two
centuries before him. By so doing, Ibn H
.
azm became a jurist who did not
share the opinion of the ‘ulamā’ in his time inside and outside his
country.
15
There is a similarity between Ibn H
.
azm and Dāwūd in their
educational studies and in Dāwūd’s establishing and Ibn H
.
azm’s reviving
the Z
.
āhirī school. Dāwūd was born in Kufah in 202/817, where the
H
.
anafī school was dominant. When his family moved to Baghdad, he
learned Shāfi‘ī law as well as the H
.
anafī. He attended the lectures of
many jurists, among whom was the Shāfi‘ī Abū Thawr (d. 246/860).
Dāwūd became interested in Shāfi‘ī fiqh, and then shifted from the
H
.
anafī to the Shāfi‘ī school. Later on, he went to Nishapur and studied
under Ibn Rāhawayh (d. 237-8/851-2). After a profound study of Shāfi‘ī
fiqh, he became dissatisfied with it. He then founded his own school, i.e.,
Z
.
āhirī, which was based exclusively on the Qur’ān and the H
.
adīth. Like
Dāwūd, Ibn H
.
azm also did not follow the dominant school in Andalusia,
i.e., the Mālikī, but he attached himself to the Shāfi‘ī, and then to the
Z
.
āhirī. Both Dāwūd and Ibn H
.
azm accepted the ijmā‘ of the s
.
ah
.
ābah
and rejected qiyās, ra’y (personal opinion), istih
.
s ān, and taqlīd
(decision based on the authority of preceding generations). Both Dāwūd
and Ibn H
.
azm were prolific writers. Unfortunately, Dāwūd‘s works
were lost, while some of those of Ibn H
.
azm have reached us. Ibn H
.
azm
refers to Dāwūd in his works. The fiqh of Dāwūd was collected by
9
Muh
.
ammad al-Shat
.
t
.
ī (d. 1307/1887) based on the works of his
(Dāwūd’s) followers.
16
As a Z
.
āhirī jurist, Ibn H
.
azm was opposed by the ‘ulamā‘ in his
time. His opponents at the theoretical level were the H
.
anafīs, and to a
lesser degree, the Shāfi’īs. This is because he attacked the H
.
anafīs’
upholding of qiyās and istih
.
s ān (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 ( ﺪѧّﻠﻗ),
adheres to, or follows Mālik, Abū al-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 (ﻪﻨﻣ نوءﺮﺒﻣ) in this world, the
Hereafter, and the Day of Judgement where written certification
became manifested ( مﻮﻳ دﺎﻬﺷﻹا مﻮﻘﻳ ).
18
Ibn H
.
azm was a notorious opponent. He attacked whoever disagreed
with him. He was accused of having an insolent tongue ( نﺎﺴѧﻠﻟا ءيﺮѧﺟ), 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 ( ﻂﻘﻠﻓ ﺐﻠﻘﻟﺎﺑ ﷲا ﺔﻓﺮѧﻌﻣ), 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 ( ﺔﻨﺴﻟا ﻞѧهأ), 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
10
immediate denunciation was one of many reasons for his expulsion from
his village by Abū al-Walīd al-Bājī and his fellows,
22
with whom Ibn
H
.
azm had held a debate.
23
Ibn H
.
azm attacked his opponents so severely that his harsh language
was compared to the sword of al-H
.
ajjāj.
24
However, Ibn H
.
azm was not
totally wrong in his argument. O.A. Farrukh said about him as follows:
“Ibn H
.
azm was a polemist by nature, and often right in his contentions….
Yet, he is to blame for the harsh language he used in his attacks on all
religions and sects indiscriminately. On some occasions he attacked even
some of those who shared with him the same doctrine.”
25
Though Ibn
H
.
azm was often right in his contentions, he was unable to convince his
opponents and to bring them to his side. His teachings remained
unpopular in his time.
26
We are told that his writings were sufficient to be
a heavy camel load ( ﺮѧﻴﻌﺑ ﺮѧﻗو),
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
11
Ibn H
.
azm’s attachment regarding his Z
.
āhirī school did not change
his pro-Umayyad attitude. On the contrary, through his Z
.
āhirī orientation,
he continued to struggle for the return of the Umayyad caliphate. So,
although he left politics in his late thirties, he did not altogether abandon it.
According to ‘Abd al- L at
.
īf Sharārah, Ibn H
.
azm never left politics after
he became a vizier of al-Mustaz
.
hir. Sharārah says:
The fact which was not noted by those who wrote the biography of
Ibn H
.
azm, and by those who spoke and wrote about him later, was
that Ibn H
.
azm did not leave politics after he had become the vizier of
al-Mustaz
.
hir. He did not stop thinking of it one day, and he never
ceased to hope for the return of his family to it, if not himself, and
particularly under the sovereignty of the Umayyad throne.
34
In Sharārah’s view, Ibn H
.
azm’s choice of fiqh as his field of work
was because he intended “to bring back a dynasty afflicted with
destruction ( ﻋإــ ﻟود ةدﺎـﻋإ ﺔـﻬﻧﻹا ﺎهاﺮﺘـرﺎﻴ ) through moral social consciousness
( ﻲﻗﻼﺧأ ﻲﻋﺎﻤﺘﺟا ﻲﻋو).”
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
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