Ibn Hazm and the Tahfa States

Ibn Hazm, whose father was a minister in al-Mansfir (371-392/981-1002) and al-Muzaffar's (392-398/1002-1008) courts,37 was at the centre of political activ­ity and Umayyad suzerainty in al-Andalus and enjoyed its wealth until his fa­ther's imprisonment in the civil unrest that ensued after al-Muzaffar's successor attempted to take over the caliphate.

Ibn Hazm is often described as a man of great zeal and little tolerance for whatever he perceived as a deviation from the ultimate truth of revelation.42 His zeal is evident in his harsh non-reconciliatory criticism of other scholarly views of Islamic law, as for example in his al-Muhalla. Maliki jurists who lent their support to those in power were not exempt from his unwavering criti­cism. Perhaps, it was this combative personality and approach to scholarship that precipitated his, and his students', harassment by other jurists.43 The in­timidation of Ibn Hazm reached its zenith shortly before his death, when the

37 Muhammad Abfi Zahia, Ibn IJa: IJayatabu a 'aubu, aratabu a fiqbubu, 2nd ed.

38 R. Arnaldez, “Ibn Hazm, Abu Mulammad 'Ali b. Almad b. Said,” in Encyclopaedia of Islam, ed. P. Bearman, Th. Bianquis, C. E. Bosworth, E. van Donzel and W. P. Heinrichs, ed. Brill Online, accessed 23 January 2011.

39 Abu Zahra, Ibn Hazm, 42-43.

40 Samir Kaddouri, “Ibn Hazm al-Qurtubi,” in Islamic Legal Tbougbt: A Compendium ofMus- IimJurists (Studies in Islamic Law and Society, vol. 36), ed. Oussama Orabi et al. (Leiden: Brill, 2013), 217.

41 Jose Miguel Puerta Vilchez, “Abu Mulammad Ali Ibn Hazm: A Biographical Sketch,” in Ibn

JJazm of Tbe Life and Works of a Controversial Tbinke, ed. CamdJa Adang,,

Maribel Fierro, and Sabine Schmidtke (Leiden: Brill, 2012), 13.

42 Abu Zahra, Ibn Hazm, 8.

43 Arnaldez, “Ibn Hazm.”

king of Seville ordered that the jurist's books be burned and that he be exiled to his ancestral village of Montija, where he died.44

Ibn Hazm was perhaps the ultimate embodiment of the pre-modern diverse intellectual, with expertise and ventures in various fields such as philosophy, literature, language, poetry, and comparative religion. He is claimed to have “produced 400 tomes amounting to approximately 80,000 pages.''45 His al-fisal fl l-milal wa-l-nihal has often been referred to as one of the earliest Muslim works in comparative religion.46 But the book is no more about other religions than it is about “erroneous” understandings of Islam. As Coope points out, the majority of the book was primarily a criticism of Muslim “heretic” creeds.47 He also published a response, to a work supposedly written by the Andalusi Jewish minister Ibn Naghrila.48 But as mentioned in Ibn Hazm's response, Ibn Hazm was unable to locate the original text of the work, so relied on a refutation writ­ten by another scholar to write his piece. As Adang notes, it is doubtful that the established Jewish minister would risk his status by writing a piece critical of the Islamic faith.49 It is hard to establish whether Ibn Hazm wilhrlly attributed such statements to Ibn Naghrila - whose name only appears in the title of the letter?o - but the response is indeed indicative of Ibn Hazm's views on the presence of non-Muslims in al-Andalus, as will be detailed later.

IbnfJaznfs Jsprud.encet'hTheoryo.f UsAkaJ-IAch

Ibn Hazm adhered to the main principles of the Zahiri theory of usul al-fiqh. He only recognized the Qur'an, the sunna, ijma^c, and dalll (evidence). With re­gards to the obligatory nature of the Qur'an and the sunna, Ibn Hazm states that the “Qur'an is the source [asl] against which all sharPas are measured, [so] we examined it and we found in it the obligation to obey the Prophet of God.''51

44 Vilchez, “Ibn Hazm,” 19-22.

45 Kaddouri, “Ibn Hazm,” 212.

46 According to some, al-fasl.

47 Jessica A. Coope, “With Heart, Tongue and Limbs: Ibn Hazm on the Essence of Faith,” Medieval Encounters 6, nos. 1-3 (2000), 104.

48 There is debate in the literature over the author of the claimed Jewish epistle. Some sources claim the author was Samuel Ibn Naghrila (d. 447/1056). Others claim it was his son who succeeded him as a minister, Joseph Ibn Naghrila (d. 458/1066). See IlsSn 'AbbSs, introduction to RasaIlIbn Hazm al-Andalusl, by Ibn Hazm, 2nd ed. (Beirut: al-Mu'assasat al-'Arabiyya lil-DirSsSt wa-l-Nashr, 1987)3:18-19.

A9 CamSfaAkang,, Muslim Wters on ]t^d^ciii^m c^r^d the Hebrew Bible: From Ibn R^c^b^b^c^n to Ibn

Hazm (Leiden: Brill, 1996), 68.

500 Adang, MusllmWrlters, 6⅛.

51 Ibn Hazm, al-Ihkamflusulal-ahkam, ed. Malmud HSmid 'UthmSn (Cairo: DSr al-Hadith,

1998), 111.

Ijma^c, on the other hand, is the consensus of the Companions over what they have learned from the Prophet and its authority again stems from the refer­ence to it in the Qur'an.53

Ibn Hazm emphasizes the importance of a well-connected and coherent chain of transmission for authoritativeness of sunna. He does not acknowl­edge al-hadlth almursal (a hadlth whose full chain of transmission cannot be authenticated)54 as a source of law. Nevertheless, he acknowledges the au­thority of any sunna, regardless of the number of Companions who recited the prophetic tradition, because of his belief in the arbitrariness and the lack of textual basis for attachment of a number of transmitters as a condition for es­tablishing the legitimacy of a hadlth.55 Thus, “khabar al-wahid al-^cadl [report­ed] from one to another [all the way] to the Prophet - peace and prayer be upon him - sets the obligation of both knowledge and action.''56 Commenting on Ibn Hazm's acknowledgement of the authoritativeness of al-khabar al- wahid, Tobgui argues that the resort to such sources can be considered some­how inconsistent with Ibn Hazm's approach to usul and his emphasis on the necessity of certainty of the tradition.57

It should also be noted that Ibn Hazm, unlike most schools of jurisprudence, does not always consider actions of the Prophet indicative of a rule in Islamic law and restricts authoritativeness of sunna to textual traditions.

52 Ibn Hazm, Ihkam, 62.

53 Ibn Hazm, Ihkam, 112.

54 See Ibn Hazm, Ihkam, 161.

55 Ibn Hazm, Ihkam, 119.

56 Ibn Hazm, Ihkam, 131.

57 Carl Sharif alTobgui, “The Epistemology of Qiyas and TaIil between the Mtazilite Abu 'l-Husayn al-Basri and Ibn Hazm al-Zahiri,” UCLAJournal of Islamic and Near Eastern Law 2 (2003), 344.

58 Ibn Hazm, Ihkam, 166.

59 Ibn Hazm, Ihkam, 230.

60 Ibn Hazm, Ihkam, 243.

to acknowledge the Prophet's approval of an act by one of his Companions as an indication of an obligation on other Muslims^

Ibn Hazm argues that the Qur'an and sunna can abrogate each other, re­gardless of whether the sunna is khabar wahid or mutawatira (ascertained by numerous chains of transmission)^ Moreover, since the Prophet's concur­rence of an act is an indication of its permissibility, if the Prophet witnessed an act committed by a Muslims without reprimanding the actor or denouncing the act, the Prophet's assumed acquiescence was taken as an indication of ab­rogating an earlier prohibition^ In other words, the Prophet would not have remained silent if one of his Companions had committed a prohibited act. Thus, his silence is an indication of abrogation of prohibition.

The two remaining sources are Jma^c and dalll. IJma^c proves the rule rather than establishes it. Accordingly, Jma^c must be supported by the Qur'an and the sunna and be linked with a strong chain of consensus all the way back to the Companions of the Prophet The proof for authoritativeness of Jma^c is that Companions often disagreed with each other, hence their consensus is an indi­cation of them witnessing the agreed opinion expressed by the Prophet Any disagreement by the Companions precludes iJmac because their lack of con­sensus prevents one from adopting one view over the other Dalll is a deduc­tive tool that is relied upon to address diverse legal issues dealt with by jurists.

61 Ibn Hazm, Ihkam, 166.

62 Ibn Hazm, Ihkam, 523.

63 Ibn Hazm, Ihkam, 528.

64 Ibn Hazm, Ihkam, 538.

65 Adam Sabra, “Ibn Hazm's Literalism: A Critique of Islamic Legal Theory (i),” al-Qantara

28, no. 1 (2007), 13.

66 Ibn Hazm, Ihkam, 586.

67 Ibn Hazm, Ihkam, 714.

68 Ibn Hazm, Ihkam, 714.

69 Ibn Hazm, Ihkam, 714.

fulfilled, the rule is applied.™ The third type is when a term is used in the text, so the usage of that term would preclude its opposite being applicable in that particular case. The fourth type is a form of Istishab (continuity), where the object of the rule maintains its status until proven otherwise.?؛ The three other types are logical extensions assumed from the text.72 The other category of dalll, the one deduced from ijma^c, is either accepting the narrowest agreed upon Ljma^c, consensus on istishab, consensus to abandon a particular state­ment, or consensus on the legitimacy of Muslim rule.73

Ibn Hazm's limiting his sources to texts, to consensus relying on a text, and to evidence for the nature of the rule stemming from the apparent meaning of the text, led him to deny other sources adopted by others. For example, he was highly critical of qiyas and any other form of analogical deduction because they allow jurists to expand beyond the instruction of the text.74 He was equally critical of ruling on the basis of personal opinion75 and of emulating other people, including the Companions.76 Thus, according to Sabra, Ibn Hazm's Islamic legal theory was closed to the textual sources, which Ibn Hazm perceived to be unambiguous and unchanging, leading his perceived scope of Islamic law to be Hnite and limited to matters explicitly addressed in the texts.77 Finally, Ibn Hazm argued that orders and prohibitions were to be taken as clear instructions of duty and obligation unless otherwise stated.78 Accordingly, if a text was phrased as an order, it was to be taken as an instruction from God to Muslims to act according to the order and its apparent meaning.

70 Ibn Hazm, Ihkam, 714.

71 Abu Zahra, Ibn Hazm, 367-377.

72 Abu Zahra, Ibn Hazm, 367--77. Ibn Hazm gives examples of these three types, such as in the case of the statement of anything that intoxicates is prohibited, then we can deduce that some of the prohibited items are intoxicating, or like the deduction that Zayd is alive if we were to state that Zayd is writing, or finally the deduction that Abu Bakr is better than 'UthmSn if we are to state that Abu Bakr is better than 'Umar and 'Umar is better than 'UthmSn. See Ibn Hazm, Ihkam, 715.

73 Ibn Hazm, Ihkam, 714.

74 Ibn Hazm, Ihkam, 58.

75 Ibn Hazm, Ihkam, 799.

76 Ibn Hazm, Ihkam, 850.

77 Adam Sabra, “Ibn Hazm's Literalism: A Critique of Islamic Legal Theory,” in Ibn Hazm of

The Life c^r^d of a Controversial Ttoe, ed. CamA Adang,, Marftrel

Fierro, and Sabine Schmidtke (Leiden: Brill, 2012), 99.

78 Sabra, “Ibn Hazm's Literalism” (2012), 304.

Before moving on to Ibn Hazm's arguments on armed conflict, it is worth mentioning that despite the Zahiris being famed for their reluctance to employ human reason,79 most scholars agree that Ibn Hazm employed sophisticated reason to prove his arguments. As Arnaldez has argued, “In carrying out his projects, he explains ideas and the relations between them with perfect clarity.”8٥ In fact, his criticism of interpretive tools often perceived as rational tools, such as qiyas, was often directed at their incoherence and illogical na­ture. He used the texts and analogical tools of schools to prove that rational assumptions of similarity fail to understand the complexity and intentions of revelation.8i Ibn Hazm thus relied on reason in a limited, perhaps more argu­mentative, manner in order to prove his arguments and refute those of his op- ponents.82 Although this cautious approach to reason “empties it of any capacity to decree on its own,''83 it indicates Ibn Hazm's legal talent and his ability to approach the law in an exceptionally sophisticated and well-articu­lated manner.

2.. 2 THioicalContXtandIbnHaznfsRrngn War

Most scholars agree that Ibn Hazm was a strong upholder of his usul theory. Sabra argues that, “unlike some modern authors who have determined in ad­vance what conclusions they wish Islamic law to reach, Ibn Hazm genuinely attempts to understand the meaning of the sacred texts.''84 And although Ibn Hazm's comparative religious works were polemical and excessively aggressive in comparison to other works, Ibn Hazm did not allow his biases against other religions to affect his legal treatment of inter-religious re!ations.85 For exam­ple, in al-Muhalla, Ibn Hazm argued that the Prophet's instruction to wash an unbeliever's vessel before using it cannot be extended to washing an unbe­liever's clothes before using them, and that unbelievers may hold the Qur'an,

79 A claim refuted in Amr Osman, The Zahin Madhhab (3rd∕9th-10th∕16th Century): A Textualist Theory ofIslamic Law (Leiden: Brill, 2014).

80 Arnaldez, “Ibn Hazm.”

81 Josep Puig Montada, “Reason and Reasoning in Ibn Hazm of Cordova,” Studia Islamica 92 (2001), 169.

82 Montada, “Reason,” 169.

83 Montada, “Reason,” 170.

84 Sabra, “Ibn Hazm's Literalism” (2007), 10. Sabra also quotes two important French works,

arguing that Ibn Hazm's method is logically consistent. See Abdel Magid Turki, Polemiques entelbnlja etBagisur Iesprinciplesde la Iolmusulmc^ne AgreicseEwAteetADocuments,

1973), and Y. Linant de Bellefonds, “Ibn Hazm et le Zahirisme Juridique,” Revue Algerienne, TunisienneetMarocainedeLegislationetdeJurisprudence 76(1960) W43.

85 Adang, Muslim Writers, 253-54.

which proves that he did not allow his “biases” against non-Muslims to influ­ence his legal reasoning.86

Only two scholars writing in English have examined a potential controversy in Ibn Hazm's reasoning. The first argues that Ibn Hazm, a literalist objector to anthropomorphism, was unable to find plausible interpretations for the refer­ence to God in human terms, especially in reference to the well-known theo­logical controversy over the Divine's possession of bodily organs.87 The second scholar brings to our attention the limits of Ibn Hazm's theory that Islam abro­gated previous monotheistic faiths by relying on Quranic verses stipulating positive rewards for faithful Jews and Christians.88 What this section attempts to prove is that Ibn Hazm's approach to armed conflict was not as coherent as his jurisprudence is often viewed, and that his Zahirism did not preclude po­litical influences. It does not attempt to argue that every ruling reached by Ibn Hazm was inconsistent with his Zahiri thought or that he deliberately twisted texts for political objectives. Rather, it argues that the inconsistencies high­lighted here can be seen as potentially shaped by how Ibn Hazm related to the world around him rather than as a mere formalistic application of the textual sources.

2.2.1 Treatment of Non-Muslims

2.. 2.W Dhirnrnts

Ibn Hazm's rulings on dhimmts show an inclination to restrict relative “privi­leges and freedoms” generally granted and agreed upon by other jurists. A key Quranic text here is: “Fight those of the People of the Book who do not [truly] believe in God and the Last Day, who do not forbid what God and His Messen­ger have forbidden, who do not obey the rule of justice until they pay the tax and agree to submit.''89 Most jurists treated this verse as a licence to allow Peo­ple of the Book to payJizya, even if their convictions were assumed to be false. Ibn Hazm, however, introduced novel conditions for accepting the extension of the Jizya privilege to People of the Book.

Ibn Hazm provided a highly restrictive condition for accepting Jizya from non-Muslim scriptuaries. He argued that Jizya could only be accepted from Jews, Christians, and the magi if they declared that Muhammad was a

86 Adang, Muslim Writers, 254-55.

87 Al Makin, “The Influence of Zahiri Theory on Ibn Hazm's Theology: The Case of His Interpretation of the Anthropomorphic Text ‘The Hand of God,”' Medieval Encounters 5, no. 1 (1999), 120.

88 Coope, “With Heart,” 113.

89 Q 9:29.

prophet In order tojustify this position, he relied on an incident where a Jewish man greeted the Prophet by his name. One of the Companions pushed the Jewish man and said, “Won't you say: Prophet of God?”9i The Jewish man replied that they (Jews) call Muhammad by the name given to him by his fam­ily. The Prophet answered that Muhammad was indeed the name given to him by his family, and the Jewish man replied that the Prophet was correct and that he was indeed a prophet

And in this account, Thawban, May God be pleased with him, struck the Jew for not saying “Apostle of God,” and the Apostle of God, God's bless­ings and peace be upon him, did not denounce him for it. And therefore it is true that it is an obligatory right, as, if it had not been permissible he [the Apostle] would have denounced it, and the Jew said to him: “You are a prophet,” and the Apostle of God, God's blessings and peace be upon him, did not oblige him to renounce his religion because of it

Ibn Hazm also relied on the Quranic verse, “But if they break their oath after having made an agreement with you, if they revile your religion, then fight the leaders of disbelief - oaths mean nothing to them - so that they may stop.''94

While Ibn Hazm generally refused to interpret texts beyond their literal meaning, he was seemingly comfortable with drawing a legal ruling here on the basis of inference from the above sources rather than an explicit stipula- tion.95 As earlier stated, Ibn Hazm regarded the Prophet's silence or concur­rence as simply indicative of permissibility rather than obligation, unless proven otherwise. Yet, the hadlth relied upon here does not explicitly or im­plicitly state that the Prophet instructed the Jewish man to acknowledge his prophethood. On the contrary, when the Jewish man showed earlier reluctance to call the Prophet “the Messenger of Allah” and argued that Jews call the Prophet by his name, the Prophet concurred by confirming that “Muhammad is the name given to me by my family.''96 The Jewish man's “acknowledgement” that Muhammad was indeed a prophet was done voluntarily, without instruc-

90 Ibn Hazm, al-Muhalla bi-l-athar, ed. Almad Mulammad Shakir (Beirut: al-Maktab al- TijSri li-]-Tiba'a wa-l-Nashr, 1969), 7:316.

91 Ibn Hazm, Muhalla, 7:317.

92 Ibn Hazm, Muhalla, 7:317.

93 Ibn Hazm, Muhalla, 7:317. Translation in Nesrine Badawi, “Sunni Islam Part I: Classical Sources,” in Religion, War and Ethics: A Sourcebook, ed. Gregory Reichberg and Henrik Syse (Cambridge: Cambridge University Press, 2014), 325.

94 Q 9:12.

95 Badawi, “Sunni Islam,” 325.

96 Ibn Hazm, Muhalla, 7:317.

tion. There is no further reference to the Prophet requiring the Jewish man's voluntary acknowledgement. The incident, if it implies anything, implies that the Prophet permitted Jews to call him by his name rather than the Messenger of Allah, or mutual recognition by the Prophet and the Jewish man that the Prophet may be called by either his name or his “title” as a prophet. However, Ibn Hazm argued that since the Prophet did not reprimand his companion for pushing the Jewish man, then his silence here indicates that the companion's act was right and obligatory, because if it were not, the Prophet would have denounced the act. But if one were to follow Ibn Hazm's rules of usul, then the Prophet's silence would simply indicate the permissibility of the companion's act, not its obligatory nature. Moreover, following the same reasoning, one can argue that the Prophet did not reprimand the Jewish man for calling him by his name. In fact, there is more evidence in this instance to argue that the Prophet concurred with the Jewish man's calling him by his name because it was the name given to him by his family, or even possibly that the Prophet's response to the Jewish man in this case was a subtle denunciation of the companion's act. The Quranic verse used by Ibn Hazm similarly contradicts his theory of limitation on opinion and analogical deduction. The verse can be understood as allowing the killing or Hghting of People of the Book who explicitly revile the religion or break their oaths to the Prophet, or both. The assumption that reviling the religion or explicitly denouncing the Prophet can be equated with a condition for explicit recognition of the prophethood of Muhammad is ac­cordingly ill-founded by strict logical deduction, let alone by the reasoning of a scholar who rehrsed to acknowledge legal instructions beyond the literal, ap­parent textual meaning.

If the mere application of the sources hardly leads Ibn Hazm to the conclu­sion arrived at above, then perhaps this restriction on dhimml statius is best understood in light of Ibn Hazm's reactions to the political surroundings of his time. As a witness to the disintegration of al-Andalus, Ibn Hazm was in all like­lihood outraged at the loss of Andalusi power vis-a-vis their Christian enemy. “The disintegration of al-Andalus was, of course, the opportinity for the Chris­tian princes in the North, and, though occasionally still quarrelling among themselves, they did not fail to make use of the opporttnity"97 They attacked the northern Andalusi states, and “the pattern by which the small Christian states had paid tribute to the awesome state ruled from Cordoba was almost exactly reversed.''98 The reversal of the power structtre encouraged Christians to aspire to the expulsion of Muslims from the peninsula. The Christian policy generated “a new fear, not only of losing political power in the peninsula but

97 Watt,IsomS a,9¾.

98 Wasserstein, Party-Kings, 249. having to leave Spain altogether.''99 Ibn Hazm's fear and shock is made clear by his own words, as quoted below, from Wasserstein. While it was directed pri­marily against Muslim kings and their weakness, it portrays anger at the advan­tage assumed by Christians and their capture of Muslim women, men, and children with the aid of some Muslim rulers:

By God, I swear that if the tyrants were to learn that they could attain their ends more easily by professing the religion of the cross, they would certainly hasten to profess it! Indeed, we see that they ask the Christians for help and allow them to take away Muslim men, women and children as captives in their land. Frequently, they protect them in their attacks against the most inviolable lands and ally themselves with them in order to gain security.100

There is also no denying that Ibn Hazm perceived Christianity and Judaism as rivals to Islam in the Iberian peninsula, leading him to write extensively on their falsehood. In his al-fisal, Ibn Hazm's “knowledge of other religions co­exists in interesting ways with a profound contempt for them; his polemic is a combination of erudition and furious outrage at the stupidity and wickedness of non-Muslims.''101 He perceives his task in the book as an attempt to reveal the fabrication of monotheistic religions' holy texts and establish that “anyone with a semblance of reason” would see that 102

In addition to being anxious over the rising power of his Christian neigh­bours, he was outraged by the position and power reached by Jews within the Muslim community: “They [Jews] had a large share in the operation of tax col­lecting and general administration. Such actions conflicted greatly with the normal Islamic prohibition on allowing dhimmls, Jews or Christians, to be in a position of authority over Muslims.''!03 As mentioned earlier, Ibn Hazm was particularly offended by the Jewish minister Ibn Naghrras alleged attack against the tenets of Islam. Ibn Hazm's response to this attack may have been triggered partially by the ascent of his Jewish colleague, especially when com­pared to his own downfall from power. 104 Regardless of Ibn Hazm's ulterior motives or the controversy over Ibn Naghrrla's authorship of the book allegedly

99 Wasserstein, Party-Kings, 279.

100 Ibn Hazm translated in Wasserstein, Party-Kings, 280.

101 Coope, “With Heart,” 102. For similar analysis of al-fisal, see Wasserstein, Party-Kings, 238, and Adang, Muslim Writers, 65.

102 Ibn Hazm, al-Fisalfl l-milal wa-l-ahwa‘ wa-l-nihal (Cairo: al-Knji, 1899), 2:2.

103 Wasserstein, Party-Kings, 206. ١0A Adang,, MuslimWriters, 6⅛.

criticizing Islamic faith, Ibn Hazm's intolerance for Jewish prominence is made clear in his response. In al-Radd, Ibn Hazm starts out by complaining to God about Muslim kings who diverted their attention to accumulating wealth at the expense of managing Muslim territory, which created the opportunity for dhimmls to assume that role.105 In the text, Ibn Hazm's response was even more aggressive than his usual approach with opponents, where he referred to the writer with several derogatory terms such as lowly, rude, ignorant, and stu­pid, and to Jewish belief as “altered disbelief and fabricated (muharraf) lies with the widest falsehood and stinkiest of meanings.''0 The rest of the text simply attempts to reftrte the arguments with the same aggressive manner and prove inadequacies within the Jewish faith.

Ibn Hazm was also probably as sceptical of Christian presence in Muslim- dominated territories, “where foreign interventions represent[ed] no more than attempts by Christian rulers to capitalize on the existence of Christian communities or institutions in Muslim Spain.”i٥7 The usage by Christian lead­ers of Christian minorities as a pretext to intervene in Spain, more significant in the era of the party kings than in earlier phases of strong Muslim rule in al- Andalus, and the fact that Muslims could barely protect their territory, must have made the presence of Christian dhimmls more a liability than an asset in Ibn Hazm's mind.

Ibn Hazm's anxieties are evident in his definition of subjugation/humbling, as referred to in the Quranic verse demanding that Muslims:

Fight those who believe not in Allah and the Last Day and do not forbid what Allah and His Messenger have forbidden - such men as practice not the religion of truth, being of those who have been given the Book - until they pay the tribute out of hand and have been humbled.108

Many scholars define Sighar (subjugation) as submission to the applicability of Islamic law, which Ibn Hazm also asserted, stating that “‘humbling' is that the law of Islam binds them and that they make apparent naught of their disbelief, nor anything which is proscribed by the religion of Islam.”i٥9 But, Ibn Hazm went further than this, stating that humbling/subjugation “entails that they do

105 Ibn Hazm, “Radd Abi Mulammad b. Hazm 'ala Ibn al-Naghrila al-Yahudi la'anahu Allah,” in RasaIl Ibn Hazm al-Andalusl, ed. Il san 'Abbas, 2nd ed. (Beirut: al-Mu'assasat al- 'Arabiyya lil-Dirasat wa-l-Nashr, 1987), 3:41.

106 Ibn Hazm, “Radd,” 3:45.

107 Wasserstein, Party-Kings, 231.

108 Q 9:29.

109 Ibn Hazm, Muhalla, 7:346. Translation in Badawi, “Sunni Islam,” 327. no harm to a Muslim, nor take them as servants and that none of them take a position of power in which their command would bind a Muslim.”٥؛؛ Whereas this demand was asserted by some other jurists, Ibn Hazm - a staunch critic of taqlld and an advocate of a Iiteralist, strict interpretation who demanded that acts not explicitly prohibited by the text ought to retain their permissibility - provides nojustification for the above-mentioned prohibitions, prohibitions that largely resonate with his view of the place of non-Muslims in Muslim al- Andalus.

2.. 2..1-.2 CoertstoIsla'm

Ibn Hazm coupled his narrowing and restricting of dhimml status with at­tempts to scrutinize non-Muslims' conversion to Islam, or more precisely to ensure converts' commitment to Islam before acknowledging their conversion. Again, his approach to conversion is innovative, in that it relies only weakly on textual sources. Despite the general Islamic acceptance of the shahada (testi­mony that there is no god but God and that Muhammad is his prophet) as a declaration of Islam, Ibn Hazm argued that, in order to be accepted as a Mus­lim, someone who belongs to the People of the Book must add that he is a Muslim and that he rejects all other religions.؛؛؛ From an extensive survey of Islamic jurisprudence on the regulations of jihad, as well as relevant textual sources, I have failed to find any textual basis for this condition. Hence, the absence of sources to support Ibn Hazm's proposition led him to rely on a se­ries of hadlths that make no reference to such a condition, and to adopt inno­vative arguments to prove this issue. He argued that anyone, other than People of the Book, who pronounces the shahada is considered converted to Islam. But the Jews, Christians, and magi must add the above-mentioned denuncia­tion of other religions. He then listed a few hadlths that support his argument that idolaters are considered to have converted if they pronounce the shahada. But he provided no evidence of references to the rejection of conversion of one of the People of the Book upon pronouncing the shahada. Accordingly, he re­ferred to the earlier mentioned incident of the Jewish man greeting the Proph­et by his name, concluding that if the Jewish man were considered a Muslim for acknowledging Muhammad as a prophet, then the declaration of the sha- hada would be sufficient as proof of conversion of the People of the Book. However, the incident does not indicate rejection of shahada as a declaration of faith by People of the Book, because acknowledging Muhammad as a pro­phet and declaring one's faith through the formalistic pronunciation of the

110 Badawi, “Sunni Islam,” 327.

111 Ibn Hazm, Muhalla, 7:316. shahada are separate actions. The conclusion that the acts are of the same na­ture is a rational, albeit perhaps stretched, deduction that pays little attention to the intentions of the subject. Clearly, however, it is incompatible with his theory of usul al-fiqh. In this narrative, there is no indication of theJewish man's interest in Islam, nor is there an indication that he said the shahada in its widely accepted format. Additionally, Ibn Hazm makes no reference to a textual source stipulating the requirement of saying “I am a Muslim and I re­nounce all other religions.” Even if one were inclined to accept the stretched rejection of the shahada as a proof of conversion, Ibn Hazm would still need to provide us with convincing textual evidence for the modified format he pro­poses and for the specification of this particular format to People of the Book.

But why would Ibn Hazm be reluctant to accept those converts, if conver­sion represents a defeat for competing faiths? His writing portrays an unwaver­ing interest in one ultimate truth - Islam as he understands it. If he was willing to accuse his opponents of heresy for minor differences over legal issues, he could fairly be assumed to have been sceptical of unfaithful conversions. After all, as expected, there are several accounts of non-Muslims converting to Islam to guarantee their ascent to power in that era. 112 It is likely, the restrictions imposed by Ibn Hazm, even if formalistic and practically irrelevant, were re­sponses to such conversions.

2.2.2 Conflicts Between Muslims

Aside from his tendency to restrict the freedoms of non-Muslims in Muslim territories, Ibn Hazm was heavily invested in devising a regime that could regu­late the chaotic inter-Muslim fighting witnessed during the era of the party kings. By the time of Ibn Hazm, the doctrine of rebellion was well articulated to offer significant protections for rebels against excessive force by the caliphs.113 Most jurists agreed on the need for a legitimate, even if erroneous, interpreta­tion to qualify for baghy status. Considering the established juristic tradition of rejecting personal or tribal rebellion, and considering also Ibn Hazm's willing­ness to denounce any deviation from Islam as he perceived it, “it was natural for Ibn Hazm to disrespect the princes who requested the assistance of the Christians, showing them loyalty and paying them a poll tax.”ii4 Perhaps be­cause of his uncompromising nature, and possibly after witnessing an extreme

W2. WassersLein, I>artyKings,212.

113 See Khaled Abou El Fadl, Rebellion and Violence in Islamic law (Cambridge: Cambridge University Press, 2001).

114 Abu Zahra, Ibn Hazm, 97.

state of internal strife, his scepticism of warring parties led him to deviate from the traditional treatment of fighting between Muslims in jurisprudence.

Ibn Hazm made two unique contributions to the Islamic regulation of con­flict between Muslims. While most other scholars focused on the obligation of the imam in his conflict with rebels and were silent on the obligation of rebels, Ibn Hazm set an obligation on rebels not to rebel against a just imam for world­ly objectives and to refrain from terrorizing people on the road, from taking their money, and from shedding their blood.115 If rebels committed any of these acts, their legal position was transferred from bugha (rebels; sing. baghi) to muharibun (bandits; sing. muharib). Although the insistence on a valid in­terpretation was widely adopted by jurists, the conditioning of baghy status on conduct was definitely a novelty.

To support his argument for considering rebels who terrorize other bandits, Ibn Hazm relied on the Quranic verse commanding Muslims to fight trans­gressors until they comply with the command of God. The verse does not, how­ever, provide for anything beyond fighting the transgressor, regardless of his conduct. The lack of obligation set on rebels in the verse led Ibn Hazm to con­sult other sources to prove his distinction. Accordingly, he relied on two hadtth^⅛-.

There would arise at the end of the age a people who would be young in age and immature in thought, but they would talk (in such a manner) as if their words are the best among the creatures. They would recite the Qur'an, but it would not go beyond their throats, and they would pass through the religion as an arrow goes through the prey. So when you meet them, kill them, for in their killing you would get a reward with Allah on the Day of Judgment. 116

[A] sect that would be among his Umma which would emerge out of the dissension of the people. Their distinctive mark would be shaven heads. They would be the worst creatures or the worst of the creatures. The group who would be nearer to the truth out of the two would kill them. 117

While these two hadlths do not go beyond an instruction to fight and kill those groups, Ibn Hazm argued that the description of the violating transgressor as

115 Ibn Hazm, Muhalla, 11:97.

116 Sahih Muslim, 5:2328, online:, accessed 25 January 2011.

٦٦7 S⅛Musltm,5∙.232⅛

the “worst of people” provides a legal basis for their transfer from the rebellion paradigm to banditry.118 The three texts he relied on make no reference to re­bels' conduct during conflict. The description of a group of rebels as “the worst” can hardly be seen as a legal basis for a literalist Zahiri to conclude transfer from one legal framework to another, especially given that the transfer carries practical implications for how those rebels are to be treated.

Perhaps the best illustration of the magnitude of such deviation is a com­parison with his own position on the definition of the just and the unjust (re­belling) party to the conflict. Although most other scholars accepted baghy as rebellion against the ruler, Ibn Hazm made no such distinction. On the con­trary, he argued that “whoever forbids evil and promotes good, supremacy (izhar) of Qur'an, sunna, and justice is not a transgressor, but the transgressor is the one who opposes him.''119 Most jurists equate transgression with rebel­lion and do not delve into the conduct of the ruler and how it affects his status before the law. By contrast, Ibn Hazm shifted towards fluidity of the legal sys­tem, whereby the primary criterion is adherence to Islam. Thus, he argued that the imam should be considered a baghl and the rebels be considered just groups and that this is justified by the Quranic verse addressing rebellion^ since there is no basis in the verse for equating rulership with justice and rebel­lion with transgression.121 This treatment of baghy is a strong example of de­viation from his theory of usul. In determining who the baghl (rebel) is in an ensuing conflict, he showed strict adherence to the sources and reluctance to go beyond instruction of the text in order to allow him to argue against the definition of transgression as rebellion against those in power. On the other hand, he used opinion-charged arguments in order to deduce inadmissibility of the regulation of baghy to groups rebelling against ajust imam without taWll and resorting to terror-inducing activities.

This contradiction reflects Ibn Hazm's interest in revolutionizing the legal framework of rebellion. His intellectual revolution seems to have been aimed at limiting, to the greatest extent possible, Hghting parties' immunity from re­ligious scrutiny, as noted by Abou El Fadl.122 According to the framework sug­gested by Ibn Hazm, the imam is not guaranteed legitimacy by virtue of being a ruler, rather he is subject to fluidity of his position and transfer from legiti­macy to transgression if his acts fall short of compliance with God's laws and

118 Ibn Hazm, Mujialla, 11:98.

119 Ibn Hazm, Muhalla, 11:98.

120 See Q 49:9.

121 Ibn Hazm, Muhalla, 11:99.

122 Abou El Fadl, Rebellion, 214. justice. At the same time, rebels are subject to the same criteria by being forced to conform to religious instructions and proper conduct, or otherwise they lose any protection proposed by the regulations on transgression/rebellion. Abou El Fadl suggests that the regime established by Ibn Hazm “did not distinguish between the need for law and order and the imperatives of correct belief.”123 In other words, Ibn Hazm was setting up an idealistic and moralizing regime that had little practical applicability. But this argument does consider that the ex­isting political structure would have rendered the established tradition of re­bellion irrelevant. To a great extent, the model envisioned by formative jurists like al-Shaybanr and al-Shaffi, establishing the ruler as the legitimate authority and the rebel as the transgressor, had to negotiate a legal system with the wide­ly acknowledged political authority. In that context, it is expedient to disregard legitimacy debates, because the entity in power will always perceive itself as legitimate, or at least present itself as such. Accepting the legitimacy of the ruler and, at the same time, establishing rules to govern his conduct with re­bels, despite their error, effectively brings the ruler under the umbrella of the advocated legal system. But this assumed structure was simply irrelevant in the era of the ta’ifa states. With princes constantly Hghting each other, rulers fre­quently changed. At the same time, those very rulers proved incapable of meeting Ibn Hazm's assumed model of Islamic governance, especially if they were subordinated to Christian kings and if they were interested in accumulat­ing wealth, which Ibn Hazm harshly criticized. Rather, from his perspective, it was impossible (and at the same time undesirable) to establish legitimacy of rule for any of them. Thus, he was consciously and pragmatically seeking to destabilize their regime by undermining their presumed legitimacy on the ba­sis of holding power and treating it as irrelevant in Hghtingbetween Muslims.124 A legal system that lent legitimacy to whoever carried the banner of Islam was the most logical system to be advocated by Ibn Hazm in a society that he per­ceived to be in need of a true Islamic salvation. In other words, Ibn Hazm's proposed regime of rebellion was not an idealistic one. Rather, it was a frus­trated response to the assumed failure of the established regime to regulate the state of affairs in his time, as well as an attempt to pave the path for a change in the political outlook on legitimacy.

On the other hand, the plunder and destruction of Andalusr land was also an extreme case that warranted an innovative response due to the terror and instability witnessed by citizens. In some instances, people built a mosque and a bath in their houses out of fear of the dangers they might incur if they

123 Abou El Fadl, Rebellion, 210.

124 Badawi, “Sunni Islam,” 312. ventured out on the street.125 In this context, it would also make sense for Ibn Hazm to address a matter seldom addressed by other jurists, the conduct of rebels. As much as rulers lacked the legitimacy to guarantee their treatment as the just group, other fighters equally warranted scepticism with their resort to violent, terror-inducing tactics. It is reasonable to argue that, in order to con­trol them, rebels who resorted to terrorizing tactics should be deprived of their privileges under this legal regime and be transferred to a more criminal zone, that of hiraba.

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