A very, very brief history

1.1 Consider, first, a medieval Sunni summary of the matter

This is how Baydawi (d. 658/1260) introduces the subject.¹

Could two arguments be totally equal in strength? Karkhi (d.

The question at the beginning, then, is whether such a condition is possible. If you believe that jurists are searching for one law, God’s law, would not there have to be a suc­cessful set of arguments by which to arrive at this law? Isnawi (d. 772/1370) takes it from here, stating that his discussion of it falls under four queries, three on equal but conflicting arguments and one on determining what superior argument is. The three queries on equal argument address the presence of conflicting sources of the law that could not be eliminated or sidestepped, i.e. to the Qur'an and juristic consensus. The Quranic verses in ostensible conflict can only be a matter of a legist’s research that finds an instance of ‘particular’ lan­guage in one verse and ‘general’ language in another, or an instance of abrogation, where a subsequent verse cancels an earlier one. Juristic consensuses, similarly, do not genuinely clash. Both the Prophet Muhammad’s reports and reasoning based on analogy, by contrast, are subject to determining which is superior and which inferior.

Before delving into this discussion, let us clarify the question at hand. We have noted that Baydawi’s text introduces the matter of conflicting but equal arguments as itself a matter of disagreement. He reports that some legal theorists thought it happens and others did not. What he neglected to mention, according to Isnawi, is that this discussion addresses whether this conflict is possible when we consider the full scope of an argument. In other words, what jurists disagreed on is whether a group of first-rate scholars could exhaust a given en­quiry, assembling all reasonable and acceptable arguments that pertain to it, and ultimately conclude that these arguments are both equal in strength and irreconcilable in indication. Baydawi could have also told us something about this condition of equality-cum-conflict of argument within and inside the same intellect — the mind of one jurist. Isnawi states that, were he to do that, he would have told us that there was no disagreement that this condition was possible; in fact, it may simply be too obvious and mundane. What is a bit more inscrutable, given its theological and logical implications, is the condition of ultimate impasse, where all the minds think equal and conflicting arguments are all there is.

Is it really possible for jurists to labour all the way to find that there are conflicting ar­guments of equal power? Some legal theorists simply refused to think that this could take place. Abu al-Hasan al-Karkhi and Ahmad b. Hanbal, according to Ibn al-Hajib’s reporting, were among this group. They argued that, were this to happen, it would lead to accepting ‘contradiction’ (in Arabic, ijtima al-mutanaqidayn). Were jurists to make an unreasoned pick, ignoring one argument and following the other, this would be an acknowledgement of the presence of mere nonsense and chance, a condition completely devoid of purpose. It would be an acknowledgement, in effect, of the presence of disorder in God’s presumably orderly world.

Isnawi then inserts a note of clarification, taking away what appears to be the require­ment of the fulfillment of an insurmountable task. There is no denial that arguments leading to certainty cannot conflict; nor can an argument leading to likelihood or high

Consequences of accepting that arguments may be both equal and conflicting

I I I

Contradiction Rule of desire Disorderly universe

Figure 10.1. confidence truly conflict with one leading to certainty. What is possible is a conflict be­tween two arguments that yield a position one may hold with high confidence, rather than certainty.

Contrasting with the view attributed to Karkhi, the majority of legal theorists say these equal-cum-conflicting arguments do exist. They appear to see things differently and in a way more simply and realistically. This is reported by Razi (d. 606/1209), Amidi (d. 631/1233) and Ibn al-Hajib (d. 646/1248). It is not difficult to imagine, so goes the argument, that two upright reporters of what the Prophet said or did would diverge, one reporting the presence of an event or statement and the other reporting its absence. This group of theorists then attacked the view of those who rejected equality and conflict in arguments. They said the logical division the rejecters consider is missing an important possibility, the very simple possibility that the conflicting arguments be reconcilable. That is to say, that the conflicting arguments be considered as elements or components of one and the same argument. The jurist must, at the end of the day, apply his reasoning to this condition, preferring one element of the argument to another or simply declining to rule on the matter.

What remains is a note on the provenance of this idea that a disorderly universe must be posited, if conflicting indicators of seemingly equal power present themselves to the mind. Isnawi states that this idea originates from the Mutazili tahsin/taqbih doctrine. This doctrine assumes that the human mind, being able to detect the qualities that make an act ‘good’ or ‘bad’, should not find itself in an impasse, where conflicting indications of what is good or bad are available. There simply must be a way to decide the goodness and badness of good and bad; otherwise, this tool — the human mind — is not what we assumed it was. Isnawi gives this quick identification of the argument’s source without a comment. His reader will take Isnawi’s silence as a kind of sneering, given that by now, the reader will have encountered multiple instances of attacking Mutazili doctrines by Isnawi, including instances of attack on this very skeletal doctrine.

In Isnawi’s reporting, Amidi (followed by others, such as Urmawi (d. 682/1283)) ex­plained that, in some cases, one act may bear two different rulings. An owner of 200 camels may, for example, pay his zakat/alms by delivering four camels that are three years of age or five camels that are two years of age. The rulings are different, but they apply to two different acts in the natural world and do not entail an unacceptable conclusion. As for two conflicting rulings applying to the same act, this is possible but not acceptable in the eyes of the law. In effect, a legal convention saves the practitioner of the law from the wild world of unhinged logical possibilities.

In Amidi’s Ihkam, the matter is presented as a matter of tarjTh or deciding what is superior argument as an outcome of ta‘arud or ‘conflict’ — plain and simple. Amidi stipulates that tarjih is needed when two arguments satisfy two conditions.

Staying with laws and legal conventions and setting logic aside, we now consider practical solutions to this condition when it seems to arise. The practical solutions are the ones we learned earlier: Some say that a pure act of choice of argument by the jurist will do. This is the view of Abu Bakr al-Baqillani (d. 403/1013) and al-Jubba'is — uncle and nephew, whom Baydawi mentioned. Others say conflicting arguments cancel out each other, and the human act under consideration becomes permissible or neutral — the principal condition of human activities before the law. If what is under consideration is simply a private matter in the jurist’s life, he gets to choose. If it concerns others, he gives the questioners all options. If it is a ju­dicial matter, he must make a decision, since he cannot leave it up to conflicting adversaries. Once he takes a decision in one case, all similar cases must be decided similarly, because of the Prophet’s instruction of Abu Bakr, which Baydawi cited.

1.2 The conflict of laws in one and the same school

You will have noticed in the above discussion that there were two ways to look at God’s cosmic plan. The Mutazili view, as described here by an Ash'ari author, is that the human mind must be able to assume a consistency in God’s plan for the world and for humans in it and must be able to discern qualities in human acts that allow the jurist to judge these acts as good or bad. The Ash'aris have relinquished this task and acknowledged that things sometimes do not add up, and this is part of why the divine ways are above human compre­hension.³ While this disagreement has some consequences, it is not always consequential.

Legal knowledge is distinct from natural knowledge by its standing on manufactured authority. If I am the lawmaker, I can say this is the law, and it does not have to be consistent the way knowledge of nature is imagined or presumed to be. Yet a premodern jurist, unlike a lawmaker of absolute authority, must explain his conclusions. The only meaningful crisis of equal-conflicting legal imperatives is transferred to the inside of the jurist’s mind (if one jurist is building a system) or to the clique of legal elites inside a legal system (as in modern national laws, for example).

When one and the same person finds conflicting indicators or considerations leading him in different directions, he may not be able to answer the question at all. But he may also answer it twice. This is what we colloquially refer to as being ‘of two minds’ about some­thing. One of the medieval jurists whose ability to apparently produce two different legal systems in one lifetime was the founder of the school that our Isnawi followed — the Shafi'i school of law.

Somewhat counter-intuitively, Shafi'i scholars argued that their school founder’s two-doctrine school system was an indication of the strength of his scholarly mind and religious prudence. In practice, a two-doctrine school system required more work from the school followers, since they had to develop some tools to decide which doctrine to pick when these are in conflict. One tool jurists use is to measure the conflicting views against other views by the same scholar, in order to decide which one of the conflicting views is more consistent with other views by the same jurist. As a broad principle, these scholars said, the doctrine Shafi'i held when he lived in Egypt, toward the end of his life, is deemed superior to his Iraq-time views. In a few cases, approximately 19 (depending on how a jurist counts juristic questions, since legal questions are interrelated), the old (Iraq) doctrine, when reported with certainty, is considered superior. What complicates the matter for Shafi'i jurists is that an additional standard, which is ‘conformity with incontrovertible textual evidence (hadith),’ is used to decide which of the school founder’s views carries the day. It was an instruction by the school founder himself, Shafi'i that is, to his followers that led to employing this standard.

1.3 Now: consider a disagreement on the Friday prayers in Jafari law

In the absence of the imam, the legitimate leader of the community, Jafari jurists wonder how duties such as the Friday prayer may be fulfilled. A consensus is reported that the prayer is obligatory, based on an apparent instruction in the Qur'an,⁴ requiring good reasons for a claim to an exception to be made.⁵ An opposed consensus stipulates, among other requirements, that the permission of an upright imam is required, and draws partial support from the simple fact that people tend to gather for bad reasons more frequently than they gather for good.⁶

The reason we end up with ostensibly equal and conflicting arguments, then, is that there is no question that the presence of the imam or his deputy (jurist) is a condition in the prayer and there is also no question that the prayer is obligatory. The continual absence of the imam and his deputy does hence create something of a paradoxical situation. But, of course, there are solutions to paradoxes, which will only appear to be illusory after the solution.

Arguing the first position, that the prayer remains an obligation, the Second Martyr, Zayn al-Din al-Amili (d. 966/1558) first acknowledges the powerful disagreement on the matter.⁷ Yet, he is adamant that he has the tools to resolve it. The side that argues that a ‘call to the prayer’ (adhdn) is valid only when performed by the rightful authorities does have a point. He comes back, however, with a rebuttal:

Once a command establishes an obligation, my conclusion is established. This is based on the consensus of all Muslims, our fellow scholars [Shi'is] and the bulk of Muslims [Sunnis] included. The obligation is not, in itself, contingent on the adhdn or proper call to prayer. It is simply made to appear conditional in order that the call be taken seriously — such that some scholars stated that the adhdn itself is a separate obligation. The same is true regarding a requirement of ‘moving toward a place to perform the prayer, since it is a requirement because it leads to a requirement. But if moving to a place to perform the prayer is a re­quirement, the prayer itself is actually the ultimate requirement, since the act of moving itself cannot be seen as good (hasan) without requiring it.⁸

Unlike their Sunni counterparts, Ja'fari scholars could adjudicate disagreement, eliminate it in effect, and show that either the equality or the conflict of the arguments is illusory. Many of their ground rules rhyme with, when they are not mirror image of, those given by Sunni legal theorists. In an introduction to his commentary on al-'Allama al-Hilli’s Summary of the Law (Mukhtasar al-Shara'L), Jamal al-Din Miqdad al-Suyuri (d. 826/1423) provides a statement of method on evaluating conflicting legal dicta.⁹ He first states that sectarian, often desire-bound, opinions have diverged, the correct path of the People of the House (the scholars of authority in Ja'fari law) being the one chosen by the author. While already cutting the number of choices for a jurist, this fundamental turn toward specific authorities does not eliminate all disagreement. Al-Suyuri moves on to enumerate the authorities of the school (madhhab), from Muhammad al-Baqir to his son, the school’s eponym, Jafar al-Sadiq (d. 148/765) to al-Kazim (Musa), the fifth, sixth and seventh of the 12 leaders of the com­munity. He warns that reporting from these authorities is not of the same quality. In some cases, the reporting produces knowledge that is close to certain, having acquired the status of ‘abundantly reported’ (mutawdtir). In other cases, all you have to go by is a single reporter or a handful of them. The latter, in turn, can be of different (totalling six) types. The author essentially offers two scales, one describing the quality of the reporters, descending from the highest (sahih), all the way to a report with deservedly blameworthy reporters (da‘df). The other scale attends to the connectability of the chain of reporters from known and connected (musnad) to a report whose authorities are not even fully identified (mursal ).¹⁰

Suyuri then addresses the different classes of legal reports and views. Pointers to favourable evaluation of one report or view over the other are indicated by language such as ‘al-ashhar’ (ie. the more common report), ‘al-azhar (the more accepted in fatwa), ‘al-ashbah’ (more con­sistent with other school doctrines), ‘al-ahwaf (the safer choice to satisfy or remove personal responsibility) ‘al-akthar (more common among jurists), ‘al-ansab’ (a synonym for al-ashbah) and ‘al-awla’ (decidedly superior view, based on a certain a rationale). He then attends to the possibility of a gridlock or the presence of conflicting and equal arguments by introducing the term ‘taraddud’.¹¹ He finally makes it one of the tasks of his commentary to spell out juris­tic disagreements and the manner in which one report or view may be seen as superior over the other (wajh al-azhariyya wa-l-ashbahiyya wa-l-aslahiyya) and the reasons jurists may encoun­ter cases where deciding who is right remains unattainable (manatiq al-taraddud).¹²

1.4 Come modernity

One can invite new types of heated disagreement when one considers, in a modern environ­ment, the question of whether conflicting arguments can be of equal strength and whether reconciling existing arguments (or data) is necessary all the time. Deciding these matters will depend on what phenomenon one is considering. There will be no interesting disagreement about the certainty bequeathed by a universal, sensory experience, such as deciding the exis­tence of a flower based on observing it. But there is scientific knowledge that the image of the sun we possess is a dated, 7-minute-old image. Sensory experience tells us something wrong here, and we must then concede that certainty did not result from the senses.

There must be those who believe that so-called conflict of arguments leading to certainty ought to be eliminated from serious academic research. On this view, there is no such a thing as arguments leading to certainty, which in turn means that a conflict of two arguments lead­ing to certainty is an imaginary problem. But I will take it that certainty remains an issue, and moderns (philosophers and laymen) maintain the desire to reconcile arguments and keep the faith that conflicting arguments can only lead to a temporary wonder (or crisis) that must end after further research is conducted.

The reason these ostensibly irrelevant scientific and logical/epistemological discussions come to mind here is that questions of what establishes human knowledge were part of the question of how humans obtain legal knowledge, which medieval jurists are asking. Re­member that these jurists are looking for a law that regulates human action, and this law, in its essential design, is made by a magnificent, omniscient, omnipotent being and must reveal itself to these human minds as they labour to extract it. Even as these jurists made distinctions between and among types of human knowledge, including human knowledge that affects the law, they could not imagine a whimsical universe, or a whimsical God, and a need for juristic sleights of hand to make the world consistent.

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