The Rule for Conflicting Evidences (حكم التعارض)

 

What is meant is the steps taken to resolve it.

The jumhūr^[1]Note that if I say “the majority” I mean linguistically, they are the larger number of legal theorists. Likewise, with “some” or “a few” then I mean simply that. If I say “the … Continue reading  deem the first step an observer must perform when two evidences appear contradictory—after discovering the point of contention (تحرير محل النزاع)—is harmonizing jam` between them, so that each evidence is still valid in our tradition and still applied in practice to some degree. The method of reconciliation here is of little consequence as long as it meets the basic guidelines explained later insha’Allah.

For example, many companions transmitted the prohibition of answering the call of nature while either facing the qiblah directly or having one’s back to it directly. But ibn `Umar mentioned that he saw the Prophet ﷺ facing the qiblah while in Hafsah’s quarters. Rather than claim one narration suggests abrogation, or rendering the prohibition less than binding, most scholars allowed facing the qiblah while indoors, prohibiting while outdoors. Their reconciliation was to give one narration a qualifier.

What happens if harmonizing does not seem plausible? If at least one or all of the conflicting evidences is of speculative authenticity, the jumhūr then perform preference tarjīḥ of one over the other(s). This is by looking at the evidences’ accompanying attributes that give it stronger authenticity or indication over the others, and then following it, while disregarding the rest. Perhaps the most well-known example of this is when the Prophet ﷺ married Maymūnah during the make-up `umrah, was he muḥrim or not. While some scholars tried to harmonize, claiming that contracting marriage is allowed but without consummation, the narrations are more rigid and leave little or no room for such an interpretation. Instead, scholars preferred the narrations stating that the Prophet ﷺ was not in ihram because the companions who transmitted those narrations were more connected to the incident than the companions who contradicted them.

When the conflicting and irreconcilable evidences are all of definite authenticity, then tarjīḥ is not a possibility because you cannot simply disregard something that is definitely authentic. In that case, they must look for the history (tārīkh) of the evidences, to see which one was the latter from the Legislator, and deem it abrogating (al-muta’khir al-nāsikh) the former (al-mutaqaddim al-mansūkh). The most famous example of this is from the Quran, regarding the waiting period of the widow. The first ayah revealed was Allah’s Word:

{وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا وَصِيَّةً لِّأَزْوَاجِهِم مَّتَاعًا إِلَى الْحَوْلِ غَيْرَ إِخْرَاجٍ ۚ} ﴿٢٤٠﴾ سورة البقرة

“And those of you who die and leave behind wives should bequeath for their wives a year’s maintenance and residence without turning them out,…” [2:240]

Later in history, but preceding it in the muṣḥaf, is Allah’s Word:

{وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا ۖ } ﴿٢٣٤﴾ سورة البقرة

“And those of you who die and leave wives behind them, the wives shall wait (before marrying) for four months and ten days,…” [2:234]

These two verses clearly clash with each other, and those who witnessed the revelation only ruled with the lighter one, giving a shorter time span. Other scholars attempted to harmonize, saying that the obligatory waiting period is four months and ten days, but then the woman is entitled to live off of the man’s estate for a whole year if she is not intending to marry during that time. Allah knows best.

If all those methods seem implausible, the jumhūr then drop suqūṭ the evidences, since it’s not allowed to perform preference or blind choice without any justification, as some claim.^[2]Although, drawing straws is a valid method in Islam and is even supported by recognized governments when elections turn out to be a draw. The evidence they then return to is istiṣḥāb of the original ruling—usually the default exemption from accountability (البَراءة الأَصْلِيّة).

Note that some of the Hanabilah used the word ta`ādul to refer to the specific division of ta`arud where the evidences are of equal strength and indication—necessitating harmonization or abrogation, but negating preferential tarjīḥ.

 

As for the juristic theorists—the Hanafis—the first step they advocate in handling apparent conflict between the evidences is looking at the chronology of the evidences, and judging the latter as abrogating the former (المتأخر ناسخ للمتقدم). Then, if that is implausible, they look to prefer one evidence over the other—assuming that the other is of speculative authenticity. When that is not possible, they’ll try to reconcile between the evidences’ indications. When even that is excused, they will leave those evidences. That’s a general outline.

But the Hanafis further divided conflicts into that wherein the two evidences are either of speculative authenticity [ظني الثبوت] or that wherein the evidences are each of definitive authenticity [قطعي الثبوت]. In the latter case, preference [الترجيح] is not an option, otherwise it would entail disregarding an authentic evidence. In any and every case, the course of action—for the Hanafis—is first to chronicle the evidences’ timings for the possibility of abrogation, and if excused, then try to reconcile between them. And since both evidences are definite, if those possibilities are implausible to the observer, then they have no choice but to suspend judgement.

The dilemma of the Hanafi approach comes when the two evidences each provide multiple separate rulings and benefits, but perhaps only clash on one single issue. Claiming that one of them abrogates the other leads all the other rulings provided by that other evidence as null and void—if we take abrogation to mean rendering the older revelation purely symbolic and no longer admissible for legislation. For example, Imam al-Shafi`I and other scholars discovered at least seventy benefits from the famous hadeeth of the Prophet’s ﷺ interaction with the young boy who played with a bird that died. Rhyming, being humorous, allowing playing with birds, giving a kunyah to someone without any children, etc. If there was another narration proven to have come later that forbade playing with animals, then the Hanafi approach would suggest nullifying and discarding all the other benefits we learned from this hadeeth—if I understand their position correctly, since they do not regard one as general and the other as specific. Hence, the Hanafis, far more than any other school, invoke abrogation.

However, if the reality of their position is to give preference to a latter statement in that single issue without nullifying all the rulings derived from the older evidence, then that does seem to be a very feasible position, and makes the Hanafi school very strong. But this gets tricky when the earlier statement is specific and the latter is general, because usually the specific specifies the general, but if the general came later, could it render the former specification moot? Another topic for future discussion insha’Allah.

One of the most famous, and in my opinion, irresponsible and detrimental examples of abrogation that has filled Hanafi books of fiqh, is their adoption of the opinion that the famous verse of the sword [al-Tawbah 9:5] abrogated dozens of verses of the Quran that call for mercy, leniency, forbearance, forgiveness and pardoning. They did not take the stronger opinion, that different verses apply to different circumstances. Thus, with comparative fiqh, the Hanafis are the quickest to bloodshed.^[3]There’s actually another reason for that, which has to do with qiyas and `illah. Scholars debated why Allah allowed waging war against some peoples and desanctifying their lives. The Hanafis … Continue reading

Many hadeeth jurists begin with harmonization but then prefer looking for abrogation before preference. While preference would be easier for them, since they have greater familiarity with the narrations’ minute strengths and weaknesses, they have greater appreciation and confidence in their overall strength, and prefer giving credence to all narrations, even if it means rendering the utility of older ones as having lost their applicable value. And if that cannot remove the conflict, then they suspend judgment or rule the evidences’ inadmissible.

As for the Ẓāhirī school, the first rule with them is dropping the two contradicting evidences, since if evidences contradict themselves, then they’re not evidences of Islam, as that is negated by clear scriptures. Judgment is suspended until a strong mode of preference presents itself.

After this introduction, future articles insha’Allah, may cover tarjīḥ, naskh, takhṣīṣ, taqyīd, jam` and tartīb al-adillah.