18. CONFLICT OF EVIDENCES
Conflict (ta`arud) occurs when each of two pieces of evidence of equal strength requires the opposite of the other. This would mean that if one of them affirms something, the other would negate it at the same time and place. A conflict is thus not expected to arise between two evidences of unequal strength, as in this case the stronger of the two evidences would naturally prevail. Thus a genuine conflict cannot arise between a definitive (qat’i) and a speculative (zanni) evidence, nor could there be a conflict between the nass and ijma’, nor between ijma` and qiyas, as some of these are stronger than others and would prevail over them. A conflict may, however, be encountered between two texts of the Qur’an, or between two rulings of Hadith, or between a Qur’anic ayah and a Mutawatir Hadith, or between two non-Mutawatir Hadith, or between two rulings of qiyas. When there is a conflict between two Quranic ayat, or between one Hadith and a pair of ahadith, or between one qiyas and a pair of analogies, it is a case of conflict between equals, because strength does not consist in number and consequently a single ayah, Hadith or qiyas is not necessarily set aside to make room for the pair. The strength of two conflicting pieces of evidence is determined by reference to the evidence itself or to the extraneous/additional factors which might tip the balance in favour of the one over the other. For example, of the two conflicting solitary or Ahad Hadith, the one which is narrated by a faqih is considered to be stronger than that which is narrated by, non-faqih.
Conflict can only arise between two pieces of evidence which cannot be reconciled, in the sense that the subject- matter of one cannot be distinguished from the other, nor can they be so distinguished in respect of the time of their application. There are, for example, three different rulings in the Quran on wine-drinking, but since they were each revealed one after the other, not simultaneously, there is consequently no case of conflict between them. Similarly, if investigation reveals that each of two apparently conflicting rules can be applied to the same issue under a different set of circumstances, then once again there will be no conflict.
A genuine conflict can arise between two speculative (zanni) evidences, but not between definitive (qat`i) proofs. In this way, all cases of conflict between the definitive rulings of the Qur’an and Sunnah are deemed to be instances of apparent, not genuine, conflict. Furthermore, the ulema have maintained the view that a genuine conflict between two ayat or two ahadith, or between an ayah and a Hadith, does not arise; whenever a conflict is observed between these proofs, it is deemed to be only apparent (zahiri), and lacking in reality and substance. For the all-pervasive wisdom of the Lawgiver cannot countenance the enactment of contradictory laws. It is only the mujtahid who is deemed unable to envision the purpose and intention of the Lawgiver in its entirety who may therefore find cases of apparent conflict in the divinely-revealed law. Only in cases of evident abrogation (naskh), which are largely identified and determined by the Prophet himself, could it be said that a genuine conflict had existed between the rulings of divine revelation. When there is a case of apparent conflict between the rulings of the mucus, one must try to discover the objective of the lawgiver and remove the conflict in the light of that objective. Indeed, the rules of reconciliation and preference proceed on the assumption that no genuine conflict can exist in the divine laws; hence it becomes necessary to reconcile them or to prefer one to the other. This would mean that either both or at least one of the pieces of evidence at issue can be retained and implemented. The mujtahid must therefore try to reconcile them as far as possible, but if he reaches the conclusion that they cannot be reconciled, then he must attempt to prefer one over the other. If the attempt at reconciliation and preference fails, then one must ascertain whether recourse can be had to abrogation, which should be considered as the last resort. But when abrogation also fails to offer a way out of the problem, then action must be suspended altogether and both of the conflicting texts are abandoned.
A case of conflict between the nusus and ijma’, or between two rulings of the latter, is inconceivable for the obvious reason that no ijma’ can be concluded which is contrary to the Qur’an and Sunnah in the first place. Should a conflict arise between two analogies or proofs other than the nusus and ijma’; and neither can be given preference over the other and they cannot be reconciled, both must be suspended. Abrogation in this case does not offer an alternative course of action. For abrogation is basically confined to the definitive rulings of the Qur’an and Sunnah; it is irrelevant to ijma’ and can be of little help in cases of conflict between speculative evidence.
Among the many instances of abrogation which the ulema have identified in the Qur’an, we may refer to only two; but in both cases a closer analysis will show that the conflict at issue is not genuine. Our first illustration is concerned with the precise duration of the waiting period (‘iddah) of widows. According to one of the two ayat on this subject (al-Baqarah, 2:234), the widow must observe a `iddah of four months and ten days following the death of her husband. This ayah consists of a general provision which applies to every widow regardless as to whether she is pregnant at the time her husband dies or not. But elsewhere in the Qur’an, there is another ruling concerning the `iddah of pregnant women. This ayah (al-Talaq, 65:4) also conveys a general ruling to the effect that the `iddah of pregnant women continues until the delivery of the child. This ruling also applies to a pregnant widow, who must wait until the termination of her pregnancy. Thus a pregnant woman whose husband dies and who gives birth to a child on the same day would have completed her `iddah according to the second of the two rulings, whereas she must, under the first ruling, still wait for four months and ten days. The two texts thus appear to be in conflict regarding the `iddah of a pregnant widow.
For a second illustration of an apparent conflict in the Qur’an, we refer to the two texts concerning the validity of making a bequest to one’s relatives. This is explicitly permitted in sura al-Baqarah (2:180) which provides: `It is prescribed when death approaches any of you, if he leaves any assets, that he makes a bequest to his parents and relatives.’ This ruling is deemed to have been abrogated by another text (al-Nisa’, 4:11) which prescribes for each of the close relatives a share in inheritance. This share is obviously determined, not by the will of the testator, but by the will of God. The two texts thus appear to be in conflict; however the conflict is not genuine as they can be reconciled, and both can be implemented under different circumstances. The first of the two rulings may, for example, be reserved for a situation where the parents of the testator are barred from inheritance by a disability such as difference of religion. Since the parents in this case would be excluded from the scope of the second ayah, the conflict would consequently not arise and there would be no case for abrogation. The same approach can be taken regarding the foregoing ayat on the waiting period of widows. Whereas the first of the two texts prescribed the `iddah of widows to be four months and ten days, the second enacted the `iddah of pregnant women until the termination of pregnancy. The two texts could be reconciled if widows were to observe whichever of the two periods were the longer. If the pregnant widow delivers her child before the expiry of four months and ten days following the death of her husband, then she should wait until this period expires. But if she waits four months and ten days and has still not delivered the child, then her `iddah should continue until the birth of the child. Thus the apparent conflict between the ayat under discussion is removed by recourse to specification (takhsis): the second ayah in this case specifies the general ruling of the first insofar as it concerns pregnant widows.
To reconcile two pieces of evidence, both of which are general (‘Amm), one may distinguish the scope and subject-matter of their application from one another by recourse to allegorical interpretation (ta’wil). Supposing there were two conflicting orders on salah, one providing that `salah is obligatory on my ummah‘ and the other that `salah is not obligatory on my ummah.’ To reconcile these two, one may assume the first to have contemplated the adult and competent members of the community and the second the minors and lunatics. If this is not possible, then the two rulings may be distinguished in regard to the notes of their respective application, or they might be assumed to have each envisaged a different set of circumstances. It is possible that one or both of the two rulings are in the nature of a manifest (Zahir) provision and may thus be open to ta’wil. The Zahir may be given an interpretation other than that of its obvious meaning so as to avoid a clash. This may be illustrated by the two apparently conflicting Hadiths on the subject of testimony. In the first of the two reports, the Prophet is quoted to have addressed an audience as follows: `Should I inform you who makes the best of witnesses?’ To this, the audience responded, ‘Yes O Messenger of God’, and the Prophet said, `It is one who gives testimony before he is requested to do so.
However, according to another Hadith, the Prophet said, ‘The best generation is the one in which I live, then the generation after that and then the next one, but after that there will be people who will give testimony although they are not invited to give it.
Thus the first Hadith recommends something which the second seems to be discouraging. The best form of testimony under the first Hadith is unsolicited testimony, whereas this is frowned upon in the second.
Since neither of the two Hadith have specified a particular context, it is suggested by way of ta’wil that the first Hadith contemplates the Rights of God (huquq Allah) whereas the second Hadith contemplates the Rights of Men (huquq al-‘ibad). In this way, the apparent conflict between the two texts is removed through an allegorical interpretation.
Allegorical interpretations may offer a solution even in cases where two conflicting orders are both specific (Khass). Recourse to ta’wil in this case would once again serve the purpose of distinguishing the subject matter and scope of each of the two conflicting orders. For example, if Ahmad issues two orders to his employee, one of which tells the latter to ‘pay 1000 dinars to Zayd’ and the other tells him `do not pay 1000 dinars to Zayd’, then if circumstances would so permit, the first order may be assumed to have contemplated normal relations between Zayd and Ahmad while the second had envisaged a hostile situation between the two parties.
In the event where one of the two conflicting rulings is general (‘Amm) and the other specific (Khass), they can be reconciled by accepting the latter from the scope of the former through a procedure which is known as takhsis al-`Amm, that is, `specifying a part of the general’. This would once again mean that each of the two rulings applied separately from one another to a different subject-matter, and both can remain operative. Similarly, a text may be absolute in its wording and appear to be in conflict with another text. They could be reconciled and the conflict between them removed if one of them is so interpreted as to limit and qualify the absolute terms of the other. Examples to illustrate these and other methods of interpretation can be found in the separate chapter of this work devoted to the rules of interpretation.
Should the attempt at reconciliation fail, the next step in resolving a conflict, as stated above, is to give preference to one over the other. Investigation may reveal that one of the two texts is supported by stronger evidence, in which case we are basically dealing with two texts of unequal strength. To prefer one over the other in this case may even amount to a form of clarification or explanation of one by the other. Inequality in strength may be in content (matn) or in proof of authenticity (riwayah). The former is concerned with the clarity or otherwise of the language of the text, and the latter with the historical reliability of the transmitters. Preference on the basis of content would require that the literal is preferred to the metaphorical, the clear (Sarih) to the implicit (Kinayah), the explicit meaning (`ibarah al-nass) to the allusive meaning (isharah al-nass), and the latter is preferred to the inferred meaning of the text (dalalah al-nass). Similarly, words which convey greater clarity are to be preferred to those which are less clear. Thus the Muhkam (perspicuous) will be preferred to the Mufassar (unequivocal), the latter to the Nass (explicit) and the Nass to the Zahir (manifest). Among unclear words, the Khafi (obscure) takes priority over the Mushkil (difficult), the latter over the Mujmal (ambivalent) and the Mujmal over the Mutashabih (intricate), in an order of priority which again has been stated elsewhere under the rules of interpretation.
Inequality in respect of transmission is mainly concerned with the Hadith: when, for example, the Mutawatir is compared to the Mashhur, the former is preferred to the latter. Similarly the Mashhur takes priority over the solitary (Ahad) Hadith, and the report of a transmitter who is faqih is preferred to the report of a transmitter who is not. Reports by persons who are known to be retentive of memory take priority over those which are transmitted by persons whose retentiveness is uncertain. On a similar note, ahadith that are transmitted by leading Companions are given preference to those transmitted by Companions who are less well known for their prominence and continuity of contact with the Prophet. The Hanafis also consider the action of the transmitter upon his own narration to be a supportive factor which adds to the strength of a Hadith. The Malikis on the other hand prefer a Hadith that is in agreement with the practice of the people of Madinah over one which is not. Similarly, the report of a transmitter who is directly involved in an incident is preferable to other reports. Thus with the Hadith which is reported by the Prophet’s wife Maymunah, to the effect that the Prophet married her while both of them were halal, that is outside the sacred state of ihram for the hajj ceremonies; this report is preferred to that of Ibn `Abbas to the effect that the Prophet married Maymunah while he was in the sacred state of ihram. In this way, a Hadith which is supported by a more reliable chain of transmission is preferred to a Hadith which is weak in its proof of authenticity.
At times the mujtahid may be confronted with a situation where each of the two conflicting Hadiths is stronger in respect of some of these factors but weaker in regard to others, in which case it is for the mujtahid to assess and determine the overall strength or weakness of the Hadith according to his own ijtihad.
The ulema of Hadith are in agreement that a Hadith which is reported by all the six imams of Hadith, namely al-Bukhari, Muslim, Abu Dawud, al-Nasa’i, al-Tirmidhi, and Ibn Majah, takes priority over that which might have been reported only by some and not all of these authorities. Among ahadith which are not reported by all the six authorities, those which are reported by the first two are preferred, and if one of the two conflicting Hadith is reported by al-Bukhari and the other by Muslim, the former is preferred to the latter.
According to another rule of preference, affirmative evidence takes priority over the negative. This may be illustrated by the two rulings of Hadith concerning the right of a slave-woman to a divorce upon her release from slavery. It is reported that a slave woman by the name of Barirah was owned by `A’ishah and was married to another slave, Mughith. `A’ishah set her free, and she wanted to be separated from Mughith, who was still a slave. The case was brought to the attention of the Prophet, who gave Barirah the choice either to remain married to Mughith or be separated. But a second report on the same subject informs us that Barirah’s husband was a free man when she was emancipated. The two reports are thus conflicting with regard to the status of the husband. But since it is known for certain that Mughith was originally a slave, and there is no dispute over this, the report which negates this original state is therefore ignored in view of the general rule that the affirmative, that is, the evidence which affirms continuation of the original state, takes priority over that which negates it. The jurists have consequently held that when a slave-woman is set free while married to a slave, she will have the choice of repudiating or retaining the marriage. If the husband is a free man, she will have no such choice according to Malik, Shafi’i, and the majority of scholars. Abu Hanifah, however, maintains that she will have the option even when her husband is a free man.
Another rule of preference which may be mentioned briefly is that prohibition takes priority over permissibility. Thus if there are two conflicting rules of equal strength on the same issue, one prohibitory and the other permissive, the former will take priority over the latter. Having said this, however, it is possible that the mujtahid may depart from this rule and instead apply that which brings ease in preference to the one that entails hardship.
If the attempt at reconciling two conflicting texts, or at preferring one over the other, have both failed, recourse may be had to abrogation. This would necessitate an inquiry into the occasions of revelation (asbab al-nuzul), the relevant materials in the Sunnah, and the chronological order between the two texts. If this also proves unfeasible, then action must be suspended on both and the mujtahid may resort to inferior evidence in order to determine the ruling for the issue. Thus if the conflict happens to be between two rulings of the Qur’an, he may depart from both and determine the matter with reference to the Sunnah. Should there be a conflict between two rulings of the Sunnah, then the mujtahid may refer, in a descending order, to the fatwa of Companions, and failing that the issue may be determined on grounds of qiyas. However, if the mujtahid fails to find a ruling in any of the lower categories of proofs, then he may resort to the general norms of Shari’ah that may be applicable to the case. These may be illustrated in the following example. A conflict is encountered between the two rulings of Qur’an concerning the recitation of portions of the Qur’an in congregational prayers. The question which needs to be answered is, whether in a congregational salah, the congregation member, that is the muqtadi, is required to recite the sura al-Fatihah after the imam, or whether he should remain silent. Two conflicting answers can be derived for this question from the Qur’an. The first of the two ayat under discussion provides: `And when the Qur’an is being read, listen to it attentively and pay heed, so that you may receive mercy’ (al-A’raf, 7:204). It would appear that the muqtadi, according to this ayah, should remain silent when the imam recites the Qur’an. However, according to another ayah, everyone, that is both the imam and the muqtadi, is ordered to `read whatever is easy for you of the Qur’an’ (al- Muzammil, 73:20). Although neither of the two texts make a particular reference to salah, they appear nevertheless to be in conflict with regard to the position of the muqtadi. There is no additional evidence available to enable the preference of one to the other; action is therefore suspended on both and the issue is determined with reference to the Sunnah. It is thus reported that on one occasion when the Prophet led the salah, he asked the members of the congregation whether they recited the Qur’an with him, and having heard their answers, he instructed them not to recite the Qur’an behind the imam. But there still remains a measure of inconsistency even in the ahadith that are reported on this point, which would explain why the jurists have also differed on it: Abu Hanifah, Malik, Ibn Hanbal, and al-Shafi’i (according to his former view which he revised later) have held that it is not necessary to recite al- Fatihah behind the imam in those prayers in which he recites the Qur’an aloud, but that when the imam recites quietly, the worshippers should recite al-Fatihah. The later Hanafi jurists have, however, held the view that it is not necessary for the worshipper to recite the Quran behind the imam in either case.
In the event where an issue cannot be determined by reference to the Sunnah, the mujtahid may resort to the fatwa of a Companion, and failing that, to qiyas. There is, for example, an apparent conflict between the two reports concerning the way that the Prophet performed the salat al-kusuf, that is, prayer offered on the occasion of a solar eclipse. According to one of the reports, the Prophet offered two units (i.e. two rak’ahs) of salah, each consisting of two bowings (ruku`) and two prostrations, (sajdah). But according to another report, each of the two units contained four bowings and four prostrations. There is yet another report to the effect that each of the two rak’ahs contained three bowing, and three prostrations. The conflicting contents of these reports can neither be reconciled nor given preference one over the other. Hence action is suspended on all and the matter is determined on grounds of qiyas. In this case, since salat al-kusuf is a variety of salah, the normal rules of salah are applied to it. Since all obligatory salah, without any variation, contains one bowing and two prostrations, this is also by way of analogy extended to salat al-kusuf.
In the event of a conflict occurring between two analogies, if they cannot be reconciled with one another, then one of them must be given preference. The qiyas whose effective cause (‘illah) is stated in an explicit text is to be preferred to the one whose ‘illah has been derived through inference (istinbat). Similarly, a qiyas whose `illah is founded in an allusive text (isharah al-nass) takes priority over qiyas whose ‘illah is merely a proper or reasonable attribute which is derived through inference and ijtihad. When the ‘illah of qiyas is explicitly stated in the nass or when the result of qiyas is upheld by ijma’, no conflict is expected to arise. In the unlikely event when the mujtahid constructs an analogy on the basis of an inferred effective cause ( ‘illah mustanbatah) while the `illah is explicitly stated in the nass, and he reaches a divergent result, it is put down to his ignorance of the nass, and the result that he has reached will be ignored.
A conflict may well arise between two analogies which are both founded on an inferred `illah, since this type of `illah involves a measure of speculative reasoning and ijtihad. Two mujtahids may thus arrive at different conclusions with regard to the identification of an ‘illah. This is, for example, the case regarding the `illah of compulsory guardianship (wilayah al-ijbar) in the marriage of a minor girl. Imam Abu Hanifah considers the ‘illah of the guardian’s power of ijbar in marriage to be the minority of the ward, whereas Imam Shafi’i considers the ‘illah to be her virginity. This difference of ijtihad would in turn give rise to analogies whose results diverge from one another depending on which of the two effective causes they are based on. However, differences of this nature are tolerated and neither of the two Imams have attempted to discourage diversity in ijtihad. In the event where neither of the two conflicting analogies can be preferred to the other, it is for the mujtahid to choose the one that seems good to him even if there is no basis for such preference other than his own personal opinion.
If none of the foregoing methods can be applied in order to determine the ruling of an issue, then the mujtahid may base his decision on the original norms of the Shari’ah. This would be done on the assumption that no specific indication could be found in the Shari’ah on the case. An example of this is to determine the ruling of the Shari`ah that might have to be applied to a hermaphrodite whose gender, whether male or female, cannot be determined and where neither side could be preferred to the other. A recourse to the original norms in this case means that the issue remains where it was in the first place. Since neither of the two possibilities can be preferred to the other, action will be based on one side or the other, not because of any evidence to warrant such a preference but as a precautionary measure when the circumstances may indicate such a course of action. Thus in some situations, in the distribution of shares in inheritance, for example, the hermaphrodite will be presumed a male, while he will be presumed a female in other situations as considerations of caution and prevention of possible harm to him may suggest.
In making such decisions, it is essential that the mujtahid does not act against the general principles and spirit of the Shari’ah. When he weighs the merits and demerits of conflicting evidence he must never lose sight of the basic objectives of the Lawgiver.
by M. H. Kamali.
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