Question 18. “Is it conceivable that a judge could make a judicial ruling that is based on a controversial rule of substantive law if the source for the decision is a matter of agreement, or is it inconceivable that he would rule in accordance with a controversial rule of substantive law except on account of contradictory and different sources for the rule, since by stipulation we are concerned with controversial rules? And how could it be that the substantive rule of law be controversial if its source is a matter of agreement? Indeed, if they agree on its source, they should agree on the substantive rule.”

The Answer

Yes, it is conceivable that a judge can rule on the basis of a controversial rule of substantive law even though the basis for the rule is a matter of agreement. The opposite is also true: a judge can rule based on a noncontroversial rule of substantive law even though the basis for the rule is controversial, as a matter of both logical consistency and logical necessity.1

This is because if what is meant by “basis” is the factual evidence on which the judge relied in making his ruling, like witnesses, and similar things, and not the revealed indicants underlying legal opinions, like the Quran and the Sunna, it is conceivable that the evidentiary basis of the judicial ruling might be noncontroversial, whereas the substantive rule governing the substantive case is controversial, as is the case when two just witnesses testify before a judge that a man and woman suckled once from the same breast,2 or that he had entered into a conditional divorce [72] with regard to the woman whom he subsequently married.³ In these two cases, assume the judge rules to annul the first marriage and invalidate the second. The judicial ruling in both of these cases is controversial, even though their factual basis—and that is the testimony of two witnesses—is not.

The contrary can occur when the factual evidence is controversial but the substantive rule of law governing the case is not. For example, the right to retaliation or compensation for injuries is a matter of universal agreement, but most scholars deny that the evidence of one witness combined with the claimant’s oath is sufficient to establish liability. This, however, is the well-established doctrine of Mālik, may God show mercy to him. Accordingly, both possibilities are conceivable if what is meant by “basis” is the factual evidence presented by the litigants.

If what is meant by “basis” is the revealed indicant which is the underlying basis of the master jurists’ legal opinions, however, sometimes the substantive rule is controversial even though the basis in this second sense is a matter of universal agreement. Controversy may ensue in these circumstances, either because the opponent understands the indicant in a manner contrary to the way the other jurist understands it, or because he interprets it according to what it entails while the other believes it to have been abrogated, or because one of them believes it to be subject to a countervailing argument that the other does not accept as valid.

This is the case, for example, when the Ḥanafīs hold that the capital of a valid endowment (waqf) must not consist of movable property, in reliance on the statement of God [73], sublime is He, “God has not decreed either the baḥīra or the sāʾiba.”4 Abū Ḥanīfa reasoned that an endowment is a kind of sāʾiba. This controversy exists even though there is no dispute that the verses of the Noble Quran are a valid source of legal rules. This is also the case when Shāfiʿīs hold that a marriage continues to be valid, despite the occurrence of a conditional divorce prior to the time of the contract, in reliance on the Prophet’s statement, may God bless him and grant him peace, “Divorce is the right of the one in possession of the woman.”⁵ And, they, the Shāfiʿīs, invalidate sales in reliance on the “option of the bargaining session,”⁶ while Ḥanafīs and Mālikīs do not, despite their shared agreement regarding the validity of this report (ḥadīth),⁷ and there are many similar cases.

It is also the case that sometimes the substantive rule might be a matter of agreement, but the basis for the rule is controversial, as occurs when there are two Prophetic reports applicable to the case, each one of which is valid according to the one upholding that rule of substantive law but invalid according to the other. In this case, they agree on the substantive rule of law in reliance on the two Prophetic reports but differ on which report forms the basis of the rule, each one relying on a different report.

It is therefore manifest that it does not follow that agreement with respect to the basis of either a substantive rule of law or a rule of evidence produces agreement with respect to the substantive judicial ruling or the general rule of law; nor is the converse true, that is, that disagreement with the basis of either a substantive rule of law or a rule of evidence produces disagreement with respect to the substantive judicial ruling or the general rule of law [74, 75].