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In this topic, we will be discussing what the scholars have proposed as methods or criteria to weigh one evidence over another, called in Islamic jurisprudence Tarjeeħ.

This foundational discipline is very important because it leads to discarding of opinions that may be valid. I'd like to say in the outset that the story of praying Asr (the afternoon prayer) at Banu Qurayzha tells us that the Prophet (PBUH) approved both conclusions, even though one of the two conclusions lead the Muslims who made it to miss the prayer!

Why would the Prophet (PBUH) condone that? Because, IMHO, he wanted to teach us: (a) that proper analysis may lead to two different yet valid conclusions and (b) that a matter may have more than one legitimate ruling.

Therefore, while preponderance of evidence may have its place, it should not always lead to discarding meritorious arguments just to arrive at only one conclusion.

In his book الاعتبار في الناسخ والمنسوخ من الآثار, pages 7-8, Abu-Bakr Al-Hamdaani indicates that he approves of the preponderance criterion suggested by the scholars of Koofa (Iraq), namely, deference to a trusted narrator. As an example, Al-Hamdaani cites the hadeeths about how many times to wash a pot after a dog bobs in it. Most of the narrations say seven times, but a hadeeth narrated by Abu-Hurayra says three times. Scholars therefore concluded that the seven times have been abrogated down to three.

I certainly agree that narrations made by honorable scholars, such as the Sahaaba, should be placed high in an analysis, but that should not necessarily result in discarding other meritorious opinions, because those scholars were still human and may have erred. Furthermore, closer inspection of texts they narrated may uncover circumstances or contingencies that reconcile two seemingly contradictory texts.

In that regard, Al-Hamdaani seems to agree with Koofi scholars who said that it is the quality, and not the quantity, of narrators that is important.

The example Al-Hamdaani gives to support this rule, however, leaves a lot to be desired. His example is testimony regarding debt. Testimony of fifty women, he said, is not accepted, while testimony of two men is. What's wrong with this example, IMHO, is that the reason for requiring testimony of women to be of two women and one man is the probability of forgetfulness, as God has clearly stated in 2:282. In Seventh Century Arabia, most women were not involved in finances at all. Ubiquity of testimony from multiple women, on the other hand, removes the probability of forgetfulness.

Continuing his validation considerations, Al-Hamdaani, on page 10 of his book الاعتبار في الناسخ والمنسوخ من الآثار, states that a narration from a boy is less credible than from a man. Then he again says that testimony is not so, since, he argues, testimony concerns one unchangeable event, while narration involves words, conditions, reasons to doubt it, possible confusion or misconstruing, etc.

I respectfully disagree. It is well known that, jokingly, when the police asks ten people about an accident they witnessed, they get eleven answers! Testimony can be quite different depending on the witness and circumstances, just like a narration.

Narrating is testifying, IMHO. Therefore, all the verification and conditions set in the Quran for testimonies should also be applied to narrations.

On page 11 of his book الاعتبار في الناسخ والمنسوخ من الآثار, author Abu-Bakr Al-Hamdaani suggests a validation rule for preponderance be to take an oratory narration over a written one. His reasoning is that a book doesn't guarantee the author heard the narration he reported.

If he is talking about failure to reference, then he would be right. But most scholarly books have taken pains to include the complete narration chain. So, I think this validation rule is academic.

He gives an example, which is easily refuted. He says that scholars accepted an oratory narration by Ibn Abbaas in which he says, "Any skin dyed has been cured." Meaning it's permissible to use. Scholars, on the other hand, turned away a written narration by Abdullah ibn Hakeem in which he said, "Do not make use of any skin or piece of a dead animal."

But the two narrations can be taken together to mean "unless you cure it by dying it, you cannot make use of a dead animal's skin." That wasn't hard, was it?

Al-Hamdaani continues suggesting validation rules for preponderance, on page 11 of his book الاعتبار في الناسخ والمنسوخ من الآثار. He suggests two interesting ones:

• To take the narration of a person who was involved directly with the event he narrated about, over a person who did not. As an example, he prefers the narration of Abu-Raafi` about the marriage of the Prophet (PBUH) to Maymoona (bint Al-Haarith, RA). Abu-Raafi` was the intermediary between the two. He rejected the narration of Ibn Abbaas who was not involved.
  
  He says that's why `Aa'isha (RA), when she was asked whether it was permissible to wet the shoes instead of washing the feet during ablution, she replied, "Ask Ali; he used to travel with the Prophet."
  
  
• To take the narration of a person about something that happened to him or her over narrations by others about other people.

One of the validation criteria for accepting one narration over another, writes Abu-Bakr Al-Hamdaani in his book الاعتبار في الناسخ والمنسوخ من الآثار, page 17, is that one evidence is a clear statement while the other is an implication.

He cites the hadeeth that specifies the required Zakah (alms) out of sheep, "Out of every forty sheep one sheep." He says it contradicts the hadeeth, "The pen is lifted concerning three...a boy until he reaches puberty." He says that this latter implies that a boy is not addressed by religious commands and therefore is not required to pay Zakah on his sheep. He argues against that by saying that the boy's guardian is still addressed and therefore Zakah is required.

While his conclusion may be correct, his argument has three problems IMHO:

• This is not preponderance; it's exemption.
  
  
• What if the boy doesn't have an adult guardian? He did not address that possibility.
  
  
• "The pen has been lifted" means that actions of a boy are not written down in his record of deeds. If the boy does not have an adult guardian and he decides to give Zakah, he will be rewarded by God for doing a good deed, not for obliging a religious requirement. If he decides not to pay Zakah, he will not be punished.

All that being said, the validation criterion that implication is no basis for preponderance is a valid criterion.

Al-Hamdaani suggests a preponderance rule, in his book الاعتبار في الناسخ والمنسوخ من الآثار, page 17, which is rather strange. He says that general text is taken over specific text. His argument is specificity "weakens" the generality. He added that many scholars have regarded specificity as a "figure of speech."

Specificity does not weaken a generality; it specifies something that the generality does not apply to. That is akin to exception. That is also what most scholars of foundations have stated.

No wonder why so many abrogation claims made by scholars were in reality very simple cases of specification.

The notion of specification seems to elude Al-Hamdaani, because, on page 19, he gives an example for another preponderance suggestion he makes. His suggestion is that similar rulings in another matter give weight over different rulings. He cites the hadeeth, "there is no donation to be made (required alms) in less than five freights of dates." He says this is taken over the hadeeth, "In what the sky watered is one tenth." He says the reason for making this decision is the hadeeth: "There is no donation is less than five ounces of silver." He says the two rulings are similar.

But the two rulings are for two different categories of property! Furthermore, the one-tenth hadeeth is general. It is made specific for date loads that are less than five freights. Where is the contradiction? If the sky irrigated your date crop, but the crop was less than five freights, then you are not required to give alms on it. If it is heavier than that, you are.

The last preponderance criterion Al-Hamdaani suggests in his book الاعتبار في الناسخ والمنسوخ من الآثار, page 20, is that the matter being decided is ruled on by a Sahaabi whom the Prophet (PBUH) praised for his knowledge about it, e.g., Ali for judgments, Mu`aazh for allowance or prohibition and Zayd ibn Thaabit for inheritance.

I have a reservation on this. Clearly the opinions of such prominent scholars should be highly regarded, but that is not the same thing as overruling other meritorious opinions. We know from the story of praying Asr at Banu Qurayzha that the Prophet (PBUH) approved both conclusions. Clearly he wanted to teach us that analysis may lead to two different but valid conclusions and that a matter may have more than one legitimate ruling.

Indeed, scholars of inheritance law, for instance, chose the opinion of Ali over Zayd in certain cases. They did not have a hard and fast rule of deferring to Zayd, like Al-Hamdaani suggests.

Al-Hamdaani then says that a corollary of this criterion is to take the opinion of any Sahaabi over the opinion of a second generation scholar. He cites the hadeeth, "My fellows are like stars, whomever of them you follow, you will be guided."

Even if this hadeeth was not weak in its authenticity, it does not lead to the conclusion Al-Hamdaani makes, because it does not exclude other scholars. What the hadeeth means is that the Sahaaba are all good examples to follow; we won't stray if we followed their opinions. That does not mean that we will stray if we prefer the opinion of a later scholar if we see more merit to it. Indeed, Muslims did just that when they preferred the opinions of Ash-Shaafi`i that were different from the Sahaaba's.