Remarks on Andalusi Jurisprudence

Ibn Hazm's general treatment of conduct of hostilities portrays a strong and recurrent theme: interest in reviving Islamic power. What is clear from his non- legal views is that he was severely disturbed by the weakness of the Muslim state in al-Andalus and the rise of Christian power at the northern border.

On the “domestic” front, Ibn Hazm was aware of the blurriness of legitimacy and the worldly interests of the warring parties. Arguably, it was his witnessing of the bloodshed caused by this “unreligious” conduct of hostilities that led him to propose a unique legal framework that guaranteed that all warring par­ties were put under scrutiny, a framework that ignored no one and that equally deprived everyone of solid legitimacy.

Ibn Rushd, equally disturbed by the hostile neighbour that kept al-Andalus in perpetual war for centuries, attempted to eliminate instances that would allow the enemy military advantage, seen, for example, in his position on the ransom of Muslims held captive by the enemy with weaponry, as well as his relatively harsher position on espionage. But, he was less troubled by the cor­ruption of the political authority. Unlike Ibn Hazm, who was in ongoing con­flict with the widely discredited ta’ifa kings, Ibn Rushd enjoyed a strong relationship with the circle of government during the time of the Almoravids. Moreover, the Almoravids relied heavily on jurists and were eager to perform their jihad duty. This model of governance arguably gave a jurist like Ibn Rushd sufficient confidence in the political regime to expand its discretion in apply­ing the law.

The juridical reasoning of both jurists, however, was influenced by other factors, one of the most important of which was ijtihad versus taqlld. As men­tioned earlier, Ibn Hazm resented taqlld and did not feel obliged to follow a predecessor's legal reasoning, while Ibn Rushd was a loyal follower of the Malikf school. Although both jurists were sensitive to policy considerations, they employed different tactics. Ibn Hazm engaged directly with primary sources to promote his position, whereas Ibn Rushd predominantly disguised his views under the rubric of tarjlh,^γ83 choosing among the different positions within the school, even if the result was a novel position not necessarily advo­cated by earlier jurists.