Introductions to Dispute & Preference

When two evidences impacting a single issue do not align, how do scholars of Islam respond?

Repelling apparent contradiction between the scriptures and recognized forms of Islamic evidence is one of the highest forms of seeking knowledge, and thus jihad, resting upon tawfīq from Allah. Whether for the sake of fulfilling the curiosities of inquisitive and doubt-stricken Muslims or repelling the misconceptions propagated by critics of Islam, this has been a subject of study ever since the time of the Prophet Muhammad ﷺ. So it’s no surprise that nearly all of the work in this arena, theoretical and practical, has been completed by previous generations, leaving us only to rediscover their writings, understand them, and provide more examples and elaboration for a new generation, by Allah’s Will. Reconciling between seemingly opposing evidences is also from the tasks scholars must perform to determine the correct ruling when several texts seem to indicate opposing conclusions. Thus, theorists traditionally placed this subject matter in the section of ijtihad, the final major heading of Usul al-Fiqh studies.

 

In the fall semester of the 2015-2016 school year, I took a master’s level course in Malaysia called “Dispute and Preference in Islamic Law” under the guidance of Assoc. Prof. Dr. Hossam el-Din el-Saefy.

Most of this material came directly from the book:

الحفناوي، محمد إبراهيم محمد. (1408 ه/ 1987 م). التعارض والترجيح عند الأصوليين وأثرهما في الفقه الإسلامي. (ط2). القاهرة: دار الوفاء للطباعة والنشر والتوزيع.

After reading this work thoroughly from cover to cover more than once, I say:

–          The author almost never fails to prefer the Shafi`i opinion, and he rarely mentions the Maliki or Hanbali opinions, even when they have diverging opinions. He passes off the Shafi`i opinion as the jumhūr and even uses the word Ummah and Ijma` rather lightly to refer to their opinions and as a basis for their strength, even discounting other opinions because “the Ummah” already has an opinion. Other times, his preference is simply justified vaguely by “the strength and inscrutability of their evidences” (لقوة أدلتهم وسلامتها من المعارضة).

–          He frequently refers to secondary sources rather than primary sources. For example, a hadeeth might be in al-Bukhari, but he quotes it from a book that came later, who quoted it from al-Bukhari.

–          Gives long-winded logical mantiqi commentary of definitions.

–          Sometimes he will add a paragraph or so from other scholars, e.g. ibnul-Qayyim, Ibn Hazm or al-Shatibi, “to complete the benefit” (تتميماً للفائدة) and in that paragraph there will hardly be any new benefit apart from a single sentence or phrase.

Nonetheless, there is a much larger work by al-Barzanji (published about 10 years before this one I think) and this work seems to be, at least at first glance, a faithful and sufficient summary of the larger. Also, whenever the author used any theoretical or logical terms, he would provide detailed explanation in the footnotes, which was extremely beneficial.

 

Contradiction between Sacred Sources

 

Scriptures refer to conflict and contradiction with the word ikhtilāf, as Allah says:

{أَفَلَا يَتَدَبَّرُونَ الْقُرْآنَ ۚ وَلَوْ كَانَ مِنْ عِندِ غَيْرِ اللَّـهِ لَوَجَدُوا فِيهِ اخْتِلَافًا كَثِيرًا} ﴿٨٢﴾ سورة النساء

Do they not then consider the Qur’ān carefully? Had it been from other than Allah, they would surely have found therein much ikhtilāf contradiction.” [4:82]

Thus, some of the first works addressing this topic, by al-Shafi`i (d. 204) and Ibn Qutaibah (d. 276) were under the title Mukhtalif al-Hadeeth. Another word they and other early theorists chose for the phenomenon of scriptural conflict in the formative period was mushkil. Hence, some of them, like the Hanafi scholar al-Tahawi (d. 321), composed the encyclopedic Mushkil al-Āthār, wherein he compiled all the seemingly contradictory narrations and struck away at their apparent conflicts.

During the classical and medieval period, theorists chose the word ta`āruḍ [التعارض] which has since stuck and become ubiquitous for the phenomenon in books of theory ever since.

But aside from theory, the famous exegete and theorist Muhammad al-Amin ibn Muhammad al-Mukhtar al-Shanqīṭī (d. 1393) compiled Daf` Ῑhām al-Iḍṭirāb `an Āyāt al-Kitāb, explaining away numerous seeming Quranic contradictions.

But for the sake of theoretical studies, we will progress from a theoretical perspective.

“Ta’āruḍ” is derived from the root letters [ع ر ض] which suggest meeting face-to-face (مقابلة) and prevention (منع). The two texts meet, but they prevent or repel one another from each being realized completely.

The best description offered, and Allah knows best, is when two or more evidences converge in at least one issue, and their individual apparent indications compete with each other for the issue’s proper ruling. Most scholars who defined ta`arud did not mention “issues”, but instead focused on how two evidences prevent each other from completely being given all the rulings that they indicate. I’ve chosen to explain it as:

اعتذار إعمال دليلَين فأكثر من أجل تمانعهما في المدلول عليه ظاهراً

Inability to implement two or more evidences because of their apparent mutual exclusivity in what they each indicate

Some scholars may add qualifiers to this definition. This may be based on what kinds of evidences are subject to conflict, limiting that to speculative evidences, like āḥād narrations, intellectual evidences, or implicit and ambiguously phrased scriptures. They may even refer to speculative evidences as amārāt, and definitive evidence as dalīl, but the usage of the Arabs for the words indicates no special differentiation, nor has it caught on among theorists.

When ta’āruḍ occurs, scholars choose either to prefer implementing one over the other (an act called tarjīḥ of evidences), or they reconcile between the two by assuming an unnamed qualifier, or they regard one as abrogating the other.

 

And then the scholars differed, if harmonization/reconciliation is valid and plausible between two apparently conflicting evidences, should they still be considered among the contradictory evidences?

One group said yes, since reconciliation is a sign of difference and for the sake of returning to later if more evidences further direct us. Another group said no, since harmonization is a sign of agreement and absence of conflict. Thus, scriptural commentators may say, “see, look there’s no contradiction here.” My chosen opinion is that yes, such evidences should be considered among the contradictory, because there exists an issue or many, where they compete with each other for a proper ruling, forcing the observer to look for a reasonable qualifier that is not explicitly mentioned in the scripture, but probably intended. This forever leaves that issue a point of conceivable retraction should more evidences from elsewhere give strength to other possible opinions. What those evidences shouldn’t be considered, is from tanāquḍ. And in my observations, whenever scholars negate conflict, they are negating complete total unresolvable tanāquḍ.

 

This leads us to another question, is conflict between the scriptures real or just perceived in the mind of the observer, and why?

Classifying conflicts may help us understand the answer insha’Allah. We can break down evidential conflicts into two types—and this is my own classification: intended by Allah and then spurned inadvertently by transmitters.

Firstly, there is clearly conflict which is intended by the Legislator, but only as a way of testing the slaves’ patience and faith, and distinguishing the qualified and gifted observers1)al-Nāẓir is a common word for mujtahid used in books of uṣūl. from the rest. And this “conflict” is negated by Allah, but to the untrained and insincere, it is there. As Allah says,

{هُوَ الَّذِي أَنزَلَ عَلَيْكَ الْكِتَابَ مِنْهُ آيَاتٌ مُّحْكَمَاتٌ هُنَّ أُمُّ الْكِتَابِ وَأُخَرُ مُتَشَابِهَاتٌ ۖ فَأَمَّا الَّذِينَ فِي قُلُوبِهِمْ زَيْغٌ فَيَتَّبِعُونَ مَا تَشَابَهَ مِنْهُ ابْتِغَاءَ الْفِتْنَةِ وَابْتِغَاءَ تَأْوِيلِهِ ۗ وَمَا يَعْلَمُ تَأْوِيلَهُ إِلَّا اللَّـهُ وَالرَّاسِخُونَ فِي الْعِلْمِ …} ﴿٧﴾ سورة آل عمران

It is He Who has sent down to you the Book. In it are Verses that are entirely clear, they are the foundations of the Book; and others not entirely clear. So, as for those in whose hearts there is a deviation, they promote that which is not entirely clear thereof, seeking discord and pursuing hidden meanings, but none knows its interpretation except Allah and those who are firmly grounded in knowledge…” [3:7]

Many examples of this kind of semantic conflict were discovered, debated and ruled on by the Prophet’s companions, even if they differed in how to properly harmonize it. One famous example is whether or not all people will be questioned on the Day of Resurrection, since different āyāt both confirm and negate questioning. Ibn Abbaas responded to such conflict by saying that the Day of Resurrection is long, some parts will have interrogation, while at other parts they will not be allowed to be heard. Although this example does not cover applicable fiqh and is instead in the realm of faith, it does demonstrate one example of how reconciliation occurs between two verses with seeming contradiction.

Second, some conflict appears as a result of human error, regarding the transmission of the Prophet’s words and actions. For example, the dispute between ibn `Abbaas and other narrators over the Prophet’s status when he married Maymūnah, was he muḥrim or not? Another example is the conflict on ibn Abbaas’ report of the existence of a new mahr/sadaaq for Zainab or not, when the Prophet ﷺ returned her to Abu al-`As when he accepted Islam. Most of these conflicts were ruled over by the four imams and their colleagues. This kind of conflict was not intended directly as a part of the Revelation, since Allah does not reveal weak aḥādīth, for example, but is a part of the exercise Muslim scholars are commanded to sift through to find the best opinion. And this kind of meaningful conflict is definitely real, not just perceived in the mind of observers.

In conclusion, the conflict present in authentic scripture is negated by the Quran (4:82) and must be reconciled or given to abrogation. As for the conflict which is genuine, then it is a result of human error and wahm, and usually forces the fuqahā’ to either prefer one over the other, or reconcile if feasible.

 

The Place (مجال) and Conditions (الشروط والأركان) for Irreconcilable Conflict

 

Of course theorists considered synonyms of ta’āruḍ and their possible indications to use for classification, like tanāquḍ. Some scholars pointed out that tanāquḍ in speech is when one suggested possibility must be true and the other must be false, which, they said, is the exact meaning of ta’āruḍ. The Hanafis and many jurists and hadeeth scholars deem it a theoretical type of ta’āruḍ that scholars cannot plausibly reconcile or prefer one over the other. Thankfully, this has not been found among the authentic scriptures of Islam, and to Allah belongs all praise. Al-Shāṭibī (d. 790) mentioned that there exist no two texts which the scholars agreed upon their irreconcilability, forcing them to discard them twain or suspend judgment indefinitely [al-Muwafaqat, 5/341]. If tanāquḍ existed, it would either require discarding both evidences, or blindly choosing the implementation of one over the other, or suspension of judgment indefinitely.

Scholars made conditions for true tanāquḍ, mentioning:

1 – The two evidences provide contradictory rulings, like obligatory or allowed versus forbidden.

2 – The two evidences are of equal authenticity, equal indicative strength, and, according to the Shafi`is, of equal number. For example, if we were comparing two opposing rulings provided by two sets of narrations, we would say that each ruling, has, for example, one narration supporting it; and both narrations are transmitted by equally trustworthy jurists in each link of the chain—none longer than the other or collected or transmitted by a greater authority than the other; and each possesses a strong but perhaps not certain probability of the ruling indicated, e.g. speculative indication. That’s just an example. The Hanafis however considered true tanāquḍ to be present even if one ruling was narrated by two companions, but the other ruling was only narrated by one. For this, I agree with the Shafi`I opinion.

3 – The evidences collide in one single issue that cannot be separated by place, time or situation.

As for setting where other conflict may occur2)Al-Hafnawi discussed this from pp. 53-64., the Four Schools generally said that true conflict is negated from the Sharia entirely, since it is not from the objectives or Spirit of the deen. Some of the Shafi`is like al-Baiḍāwī (d. 685 ah) and al-Shīrāzī (d. 476) allowed conflict between speculative evidences, while ibn al-Subki (d. 771 ah) allowed it all together. Al-`Izz ibn Abd al-Salaam (d. 660 ah) said that conflict is only in the causes of speculation, which is not too far from an opinion mentioned by al-Shawkānī (d. 1250 ah), that contradiction may appear in the mind, but not exist in reality. I disagree with this, since, for example, the conflict between some evidences is as a result of human error of transmission. The conflict is real, but it’s up to us to discover and justify which human transmitter was closer to the truth. But as for the interpretation of completely authentic evidences, then yes, that conflict is only perceived, but I do believe that Allah intended the uncertainty to test His slaves to use sound principles to recognize the worthier interpretation, see 3:7. After all, Allah could have used an unambiguous word like aṭhār or ḥiyaḍ in [2:228] instead of the controversial qurū’, which provoked dedicated truth-seekers to delve deeper into the language of the Quran and discover its subtleties.

And elsewhere, as al-Hafnawi mentioned (pg. 30), the majority of the scholars have said that scriptural conflict is only between speculative proofs and does not occur between definitive proofs. The Hanafis disagreed, allowing it to occur between definitive proofs. And personally, I find the position of the majority inconsistent. Do they mean conflict that leads us to tarjīḥ preference, or conflict subject to abrogation and harmonizing as well? Because if it’s the former, then they’re not defining all types of conflict, only the conflict subject to preference. If it’s the latter, then what evidence do they have that a mujtahid could never have a delusional mistake into seeing two definite evidences as contradictory in an issue?

The Hanafis’ generalization of the types of evidences subject to harmonization and abrogation and preference is much more acceptable. Because there are evidences which are definite in meaning and authenticity, and they collide, but one abrogates the other. These semantic and linguistic disputes among theorists are an unfortunate side effect of not differentiating between conflict (ta’āruḍ) and contradiction (tanāquḍ).

Properly, al-Shafi`I said, “There are no two authentic Prophetic narrations contradicting each other, one negating what the other confirmed, without generality and specificity or ambiguity and explanation, except by abrogation.” (al-Shawkānī, pg. 275). And Ahmad al-`Abaadi al-Shafi`I (d. 994 in Medinah) said, “There is no conflict between two evidences with definite indication, whether intellectual or scriptural or mixed, unless one abrogates the other.” This is because intellectual evidences, like a reason and an analogy, generally are never of definite indication unless the scholars have agreed unanimously over it.

References   [ + ]

1. al-Nāẓir is a common word for mujtahid used in books of uṣūl.
2. Al-Hafnawi discussed this from pp. 53-64.
About Chris

Chris, aka AbdulHaqq, is from central Illinois and accepted Islam in 2001 at age 17. He studied Arabic and Islamic theology in Saudi Arabia from 2007-13 and most recently earned a master’s in Islamic Law from Malaysia. He is married with children.

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