Controversial Questions and Dialectics

Islamic jurisprudence is based on religious evidence. It involves many differences of opinion among scholars of independent judgment.

Differences of opinion result from the different sources they use and their different outlooks, and are unavoidable.

These differences occupied a very large space in Islam. Originally, people could adhere to any (juridical authority) they wished. Later on, the matter was in the hands of the four leading authorities in the Muslim cities. They enjoyed a very high prestige.

Adherence was restricted to them, and people were thus prevented from adhering to anyone else. This situation was the result of the disappearance of independent judgment, because (the exercise of independent judgment) was too difficult a matter and because, in the course of time, the scholarly disciplinesconstituting material for independent judgment had multiplied.

Also, there existed nobody who might have organized a school in addition to the existing four. Thus, they were set up as the basic schools of Islam. Differences of opinion among their adherents and the followers of their laws received equal status with differences of opinion concerning religious texts and legal principles (in general). The adherents of the four schools held disputations, in order to prove the correctness of their respective founders.

These disputations took place according to sound principles and fast rules. Everyone argued in favor of the correctness of the school to which he adhered and which he followed. The disputations concerned all the problems of religious law and every subject of jurisprudence.

The difference of opinion was on occasion between ash-Shafi’i and Malik, with Abu Hanifah agreeing with one of them. Or it was between Malik and Abu Hanifah, with ash-Shafi’i agreeing with one of them. Or it was between ash-Shafi’i and Abu Hanifah, with Malik agreeing with one of them. The disputations clarified the sources of the authorities as well as the motives of their differences and the occasions when they exercised independent judgment.

This kind of scholarship was called “controversial questions.”

The persons who cultivate it must know the basic rules through which laws can be evolved, just as they are known to scholars of independent judgment. However, the latter need those basic rules in order to find the law, while the former need them in order to guard the legal problems that have been evolved against destruction by the arguments of an opponent. It is, indeed, a very useful discipline.

It affords acquaintance with the sources and evidence of the authorities, and gives students practice in arguing whatever they wish to prove. Works by Hanafites and Shafi’ites are more numerous on the subject than those by Malikites. As one knows, analogy is for the Hanafites a principle on which many details of their school depend.

Therefore, they are the people who speculate and investigate. The Malikites, on the other hand, mostly rely on tradition. They do not speculate. Furthermore, most of them are Maghribis who are Bedouins, who care only a little for the crafts. There are the following works on the subject= the Kitab al-Ma’akhidh 292 by al-Ghazzali, the Kitab at-Talkhis by the Malikite Abu Bakr b. al-‘Arabi, 293 who imported (the subject) from the East, the Kitab at-Ta’liqah by Abu Zayd adDabusi, and the ’ Uyun al-adillah by the Malikite shaykh Ibn al-Qassar. 294 In his Mukhtasar on the principles of jurisprudence, Ibn as-Sa’ati has collected all the controversial law that is based on the principles of jurisprudence. 295 In connection with every problem, he noted the controversial questions that are based on it.

Dialectics

“Dialectics” involves knowledge of the proper behavior in disputations among the adherents of the legal schools and others.

The choices of rejection and acceptance in disputations are numerous. In arguing and answering, each disputant lets himself go in his argumentation.

Therefore, the authorities had to lay down the proper rules of behavior by which the disputants would have to abide. These concern rejection and acceptance; how the person advancing an argument should behave and how the person replying to the argument should behave; when it is permissible for a disputant to advance an argument; how he (should admit) defeat 296 and stop; when he should interrupt or contradict (his opponent); and where he should be silent and permit his opponent to talk and advance his arguments.

This discipline is the knowledge of the basic rules of proper behavior in arguing, which help either to safeguard an opinion or to demolish it.

There are two methods.

1. The method of alBazdawi, which is limited to the evidence of the religious law from texts, general consensus, and argumentation.

2. The method of al-‘Amidi 298 which applies quite generally to every argument used in argumentation, no matter to which scholarly discipline it belongs.

Most of the (subject) is concerned with argumentation. It is a good procedure, but, by its very nature, it contains much sophistry. If it is considered under the aspect of logic, it is, as a rule, quite similar to sophistical reasoning.

However, the (correct) forms of arguments and syllogisms are carefully observed in it, in that the methods of argumentation in this respect are chosen as it is proper. The ‘Amidi just mentioned was the first to write on his method. 299

Therefore, its (invention) was ascribed to him, He wrote a brief book, entitled al-Irshad.

Later on, he was followed by such recent scholars as an-Nasafi 300 and others who walked in his steps and followed the way he had shown. Many works were written on the method. At this time, no regard is paid to it, because scholarship and scientific instruction have dwindled in the Muslim cities. It is, after all, a luxury, and not a necessity.