This final chapter is the core of our study since Abu Hanifa’s fiqh is the field for which he is famous. To apply oneself to the study of his fiqh, however, is not an easy task because Abu Hanifa did not write a book on it, and the only surviving books ascribed to him are about dogma. There is no text written by him to examine so as to ascertain exactly what his position was.
The transmission of Hanafi fiqh
The fact that Abu Hanifa did not write a book on fiqh is in keeping with the spirit of his age. Writing books only became widespread after the death of Abu Hanifa or at the end of his life when he was old. There were mujtahids in the time of the Companions who forbade their fatwas to be recorded and even forbade the Sunna to be written down, so that there would be no confusion between it and the Book of Allah. As time went on, however, scholars found it necessary to record the Sunna in order to preserve it, and so they did so and collected fatwas and fiqh as well. The Iraqis collected the fatwas of the Companions and the Tabi‘un. Abu Hanifa’s son, Hammad, made such a collection.
It is clear, though, that these collections were not books organised into chapters. They were more akin to private notes to which the mujtahid would refer and not a book for the general public. The mujtahid would write them down to avoid forgetting them.
Abu Hanifa’s students, however, did write down his views and record them. Sometimes that would be by his dictation but they were still in the form of individual notes. Sometimes he would ask them to read what they had written and he would confirm or alter it. Most of what we have from ash-Shaybani must have come via Abu Yusuf since ash-Shaybani and other students had not been with Abu Hanifa long enough to gain such comprehensive knowledge. We read in Ibn al-Bazzazi, “From Abu ‘Abdullah: I used to read Abu Hanifa’s statements to him and Abu Yusuf would also insert his own statements in it. I used to try not to mention the position of Abu Yusuf along with Abu Hanifa’s. One day I made a slip of the tongue and muddled them.”
We read in al-Makki, “Abu Hanifa was the first to record the knowledge of this Shari‘a which no one had done before him because the Companions and Tabi‘un did not set down their knowledge of the Shari‘a into topics or structured books. They relied on their strong memories and made their hearts the repositories of their knowledge. Abu Hanifa grew up after them. He saw that knowledge had become scattered and feared there would be unfortunate consequences if it were lost. The Prophet said, ‘Allah Almighty will not take away knowledge by stripping it from the hearts of people. It will be taken away by the death of scholars. Ignorant leaders will remain and give fatwas without knowledge and be misguided and misguide.’ Therefore Abu Hanifa recorded it and arranged it into topics.”
By this he means the recording done by his students which may have been suggested by him. Indeed, this is probable.
The Musnad of Abu Hanifa
Although Abu Hanifa does not have a book on fiqh, scholars mention a musnad of hadiths and traditions ascribed to him. It is arranged in the order of fiqh and its rulings. So is this musnad part of what he did and did he arrange it himself or was it transmitted by his companions who received it in the way his fiqh was received? Did they write down what he told them in his lessons and then collect it together in chapters and publish it? It is certain that Abu Yusuf collected many of those transmissions which he called al-Athar and that Muhammad ash-Shaybani also collected a group which he also called al-Athar. Many transmissions are the same in both books.
Many scholars think that the transmissions can be correctly ascribed to Abu Hanifa. Ibn Hajar al-‘Asqalani says in Ta‘jil al-Munfa‘a, “As for the Musnad of Abu Hanifa, he did not collect it. What is extant of the hadiths of Abu Hanifa is found in the Kitab al-Athar which Muhammad ibn al-Hasan related, and other hadiths of Abu Hanifa can be found in the books of Muhammad ibn al-Hasan and Abu Yusuf. Abu Muhammad al-Harithi, who lived after 300 AH, was interested in the hadiths of Abu Hanifa and collected them in a volume.”
This would indicate that the Musnad ascribed to Abu Hanifa is not actually his own collection. Other scholars state the same. It seems that the traditions ascribed to Abu Hanifa are valid, but that their actual collection and ordering were done by Abu Yusuf and ash-Shaybani.
Abu Hanifa’s knowledge transmitted by his students
It is clear that the only method we can use to discover the fiqh of Abu Hanifa is by way of his companions. We see that they wrote down the issues which they discussed with their shaykh after a specific opinion had been reached. We must, however, take note of three things:
- The writings of the companions of Abu Hanifa that have been mentioned do not preclude him having recorded his fiqh himself.
- The statements transmitted by his companions lack any proofs other than transmitted traditions or reports, reliance on the fatwa of a Companion, or the position of a Tabi‘i. Rarely are analogy or reliance on istihsan mentioned, except in the books of Abu Yusuf, and he only reports them occasionally. There is no doubt that this does not take us far towards understanding the use of analogy which was so strong in Abu Hanifa’s time that his opponents accused him of going too deeply into it and claimed that his analogies left the Sunna and exceeded the scope of the Muslim mujtahid. When we read the books of ash-Shaybani, we only rarely find an analogy in which the underlying reason is clarified so that we know how it was deduced and pursued. Also, where is the istihsan of Abu Hanifa which his students could not dispute because of his profound perception and insight? We have no evidence that the later form of deduction was the same method of thought as that followed by Abu Hanifa.
- Abu Hanifa’s companions served his school by transmitting its teachings clearly to following generations and their concern made Abu Hanifa respected. Each of those companions was an imam in his own right. Abu Yusuf was a respected and important imam. He was the Chief Qadi of the government for a long time. Muhammad ash-Shaybani was an imam like Abu Yusuf in both fiqh of opinion and fiqh of hadith. He also related the Muwatta’ of Malik as he related the fiqh of Iraq and he knew both.
We have no option but to take Abu Hanifa’s fiqh from those who accompanied him and so we should briefly mention those of them who transmitted his fiqh. Abu Hanifa had many students. Some travelled to him and stayed for a time and then returned home after learning his method and technique. Others remained with him. More than once, he mentioned the companions who remained with him: “They are thirty-six men: twenty-eight are fit to be qadis; six are able to give fatwa; and two – Abu Yusuf and Zafar – are fit to teach the qadis and those who give fatwa.” For Abu Hanifa to make such a statement, these students must have already been mature. Because of his age, this would exclude ash-Shaybani, although he is in fact the major source for the transmission of the fiqh of Abu Hanifa to subsequent generations.
We will take a brief look at some of the companions who were responsible for recording the fiqh of Abu Hanifa, whether they were with him for a long time or whether, like Muhammad ibn al-Hasan ash-Shaybani, they were not. The criterion is whether they play an important role in the transmission of his fiqh.
He is Ya‘qub ibn Ibrahim ibn Habib al-Ansari al-Kufi. He was an Arab and not a client. He was born in 133 AH and died in 182. He grew up poor and in need and had to work to eat. Fervour for knowledge moved him to listen to scholars until Abu Hanifa noticed him and helped him financially. After that he devoted himself to knowledge entirely. He had been with Ibn Abi Layla before joining Abu Hanifa to whom he then devoted himself. It seems that after Abu Hanifa’s death, or while he was still alive, he also studied with hadith scholars.
He was qadi under three khalifs: al-Mahdi, al-Hadi and then ar-Rashid. Coupled with the fact that he was one of the fuqaha’ of opinion, his appointment as qadi was one of the reasons why some hadith scholars have avoided his hadiths. The Hanafi school benefited in several ways by the appointment of Abu Yusuf as qadi since his selection gave the school influence. A qadi deals with people’s problems and has to apply himself to solving them and thus the analogy and istihsan he used was derived from everyday life not theoretical situations. Through his appointment, the Hanafi school was put on a firm footing. Abu Yusuf may have been the first of the fuqaha’ of opinion to base opinions on hadith for he combined both disciplines.
The books of Abu Yusuf
Abu Yusuf wrote many books containing his opinions and those of his shaykh. The Index of Ibn an-Nadim mentions a number of them, most of which have not survived. There are also a number of books which Ibn an- Nadim does not mention, one of which is the Kitab al-Athar and books on differences with other fuqaha’. His best known book is the Kitab al-Kharaj, a treatise which Abu Yusuf wrote for ar-Rashid on the financial matters of the state. He clarified the sources of financial revenue for the state and the areas of taxation in great detail, basing himself on the Qur’an, transmission from the Prophet, and the fatwas of the Companions. He quotes hadiths and deduces their underlying intentions and the actions of the Companions. This book was entirely written by Abu Yusuf, but in it he mentioned his disagreement with Abu Hanifa regarding several questions. Is it reasonable to conclude that he agrees with Abu Hanifa when he does not mention that they disagree? This would seem to be the case. When he differs, he produces the method of reasoning involved in his reaching a separate conclusion.
The Kitab al-Athar is transmitted by him from Abu Hanifa and contains a number of fatwas which Abu Hanifa selected or opposed from the positions prevalent in Kufa at that time. This book has several important
scholarly implications for us:
- Its ascription to Abu Hanifa shows a group of his transmissions and the type of hadiths on which he relied in his deduction of rulings and fatwas.
- It makes it clear that Abu Hanifa accepted the fatwas of the Companions and how he accepted and used mursal hadiths.
- It includes some of what he selected of the fatwas of the Tabi‘un among the fuqaha’ of Kufa and of Iraq in general. It, therefore, provides a legal collection which was known and studied in Iraq.
Another significant book was The Disagreement of Abu Hanifa and Ibn Abi Layla: It contains the questions on which there was disagreement between the two. AbuYusuf supports Abu Hanifa although both of
them had been his teachers. As-Sarakhshi says about Abu Yusuf’s move:
“Abu Yusuf used at first to go to Ibn Abi Layla and studied with him for nine years. Then he moved to the gathering of Abu Hanifa. It is said that the reason for Abu Yusuf’s move was that he attended a marriage contract and sweets were distributed. Abu Yusuf had some and Ibn Abi Layla disliked that and spoke harshly to him, saying, ‘Do you not know that this is not lawful?’ So Abu Yusuf went to Abu Hanifa and asked him about that and he said, ‘There is nothing wrong with it. We have heard that the Messenger of Allah was with his Companions at the marriage contract of an Ansari and dates were distributed and the Prophet began to pick them up and tell his Compan-ions, “Take”. We also heard that during the Farewell Hajj when the Messenger of Allah sacrificed a hundred camels, he ordered that a piece of each camel be kept for him.’ When the disparity between them was clear, Abu Yusuf moved to Abu Hanifa.”
We find this transmitted from ash-Shaybani. The book also shows how Abu Hanifa utilised analogy in Iraqi fiqh. Abu Yusuf’s book illustrates the use of evidence and different aspects of analogy. It also shows the
disagreement between the people of Madina and the people of Iraq. An example of that is the share a horse receives from the booty.
Abu Hanifa said that a man with two horses only receives a share for one horse. Al-Awza‘i said that he receives the share for two horses and no further share and that this is what the people of knowledge say and the statement according to which scholars act. Abu Yusuf said, “Nothing about shares for two horses has reached us from the Prophet or any of his Companions except for one hadith. We consider a single hadith to be anomalous and do not take it as evidence. As for the statement that the Imams act by it and the people of knowledge follow it, this is like the statement of the people of the Hijaz, “And that is the past sunna.” This is not an acceptable position to adopt. Who is the Imam who does this and who is the scholar who accepts it?
We must look to see whether he is worthy to be transmitted from and certain about whether his position is based on knowledge or not. How can there be shares for two horses and not for three? How can there be a share for a horse tethered at camp which is not used in the fighting?”
Muhammad ibn al-Hasan ash-Shaybani
His kunya was Abu ‘Abdullah. He was a client. He was born in 132 and died in 189 AH. He was only about eighteen years old when Abu Hanifa died and had not been with him for a long time, but nonetheless he compiled a more complete study of the fiqh of Iraq than Abu Yusuf. He took from ath-Thawri and al-Awza‘i, and travelled to Malik and learned the fiqh of hadith, transmissions and the opinions of Malik, after having learned fiqh of opinion from the Iraqis. He stayed with Malik for three years. He was appointed a qadi under ar-Rashid but was never Chief Qadi. He had great skill in letters and so he had both linguistic training and analytic perception. He was concerned with his appearance so that ash-Shafi‘i said about him, “Muhammad ibn al-Hasan fills both the eye and the heart.” He also mentioned his great eloquence.
Muhammad ibn al-Hasan achieved what no other companion of Abu Hanifa did, except Abu Yusuf – he learned the fiqh of Iraq completely and then was appointed qadi. He studied with Abu Yusuf and then, as we have mentioned, he also learned the fiqh of the Hijaz from Malik and the fiqh of Syria from the shaykh of Syria, al-Awza‘i. He also had skill in calculating the distribution of inheritance. He was inclined to record things and he is truly considered to be the transmitter of the fiqh of the Iraqis to posterity. As we mentioned, not only did he transmit the fiqh of Iraq, but he also transmitted the Muwatta’ of Malik.
Ash-Shaybani’s position among the Iraqis came from him being a leading mujtahid who had valuable legal opinions. He did not relate fiqh directly from Abu Hanifa but by way of Abu Yusuf and others. He mentions his transmission from Abu Yusuf. Indeed, the entirety of al-Jami‘ as-Saghir is transmitted from Abu Yusuf. The one book which he did not review with Abu Yusuf was al-Jami‘ al-Kabir. The books of ash-Shaybani form the primary source for Abu Hanifa’s fiqh, whether it be what he transmits
from Abu Yusuf or what he records of the fiqh known in Iraq. Not all of ash-Shaybani’s books possess the same degree of reliability. Scholars divide them in two. Some are clear in transmission, like al-Mabsut, az- Ziyadat, al-Jami‘ as-Saghir, as-Siyar as-Saghir, as-Siyar al-Kabir and al-Jami‘ al-Kabir. The ascription of others is not as certain. The first group are the bedrock of the transmission of Hanafi fiqh.
Al-Mabsut or al-Asl, as it is sometimes known, is the longest of his books in which he collected questions on matters which Abu Hanifa gave fatwa. It contains the differences between Abu Yusuf and ash-Shaybani, when there were any, and matters on which there was no disagreement. Each chapter begins with the traditions they considered sound regarding the topic concerned and then various questions and their answers. It reports Iraqi fiqh, but not the legal reasoning behind it. Al-Jami‘ as-Saghir contains things which ash-Shaybani related from Abu Yusuf, as is mentioned at the beginning of every chapter. Some sources state that it is the only thing which he transmitted directly from Abu Yusuf. It is arranged according to legal topics.
In the case of al-Jami‘ al-Kabir, scholars agree that it did not come from Abu Yusuf, although he knew what it contained and many of the conclusions must have been transmitted from him. It, like as-Saghir, lacks legal deduction and there is no evidence for the conclusions reached, although a reader may discern it by reading between the lines. He has other books as well that clarify various rulings which reflect Iraqi fiqh and frequently illustrate the difference between Iraqi fiqh and Madinan fiqh. His books also include transmission of hadiths and later traditions which were transmitted by Abu Hanifa and the people of Iraq and which were used as sources by later Hanafi scholars.
Zafar ibn Hudhayl
He was a companion of Abu Hanifa before the other two. He died in 158 at the age of 84. His father was an Arab and his mother a Persian and he had traits of both races. He was strong in using evidence and took the fiqh of opinion from Abu Hanifa which dominated his work. He was most acute in analogy. There is a report in The History of Baghdad from al-Muzani: “A man came and asked about the people of Iraq. ‘What do you say about Abu Hanifa?’ ‘He is their master,’ was the reply. ‘And Abu Yusuf?’ ‘He is the one among them who most follows hadith.’ ‘And Muhammad ibn al-Hasan?’ ‘The one with the most secondary deduction.’ ‘And Zafar?’ ‘The most acute of them in using analogy.’”
No books are transmitted from him and it is not known that he recorded the school of his shaykh, and it seems that the reason for that was that he died soon after him – only eight years later – while the other two lived for more than thirty years and had time to write. He seems to have only orally transmitted Abu Hanifa’s teaching. He was qadi of Basra while Abu Hanifa was alive. Ibn ‘Abdu’l-Barr reports in al-Intiqa’: “When he was appointed qadi of Basra Abu Hanifa said to him, ‘You know the enmity, envy and rivalry which exists between us and the Basrans. I do not think that you will be safe from them.’ When he went to Basra as qadi, the people of knowledge gathered round him and began to debate with him about fiqh day after day. When he saw that they accepted his arguments, he told them, ‘This is the position of Abu Hanifa.’ They said, ‘Does Abu Hanifa find this good?’ ‘Yes,’ he replied. He continued in this vein until they accepted Zafar completely and had transformed their hatred into love.”
He took Abu Hanifa’s place in his circle after he died and Abu Yusuf took it after him. Several other fuqaha’ of the Hanafi school are considered to have transmitted the opinions of Abu Hanifa. Among them was al-Hasan ibn Ziyad al-Lu’lu’i (d. 204) who is said to have been a student of Abu Hanifa. He became qadi of Kufa in 194.
The place of Abu Hanifa’s fiqh in relation to earlier fiqh
We want to examine the principles on which Abu Hanifa based his deduction and which were the source of his fiqh and to relate it to a topic which some other writers have broached – the place of Hanafi fiqh in relation to the fiqh which preceded it. Did he innovate the method he followed? Did his fiqh cover an area not previously dealt with or did he simply follow a course plotted by others before him so that he did not bring anything new? Did Abu Hanifa complete a process which began in Iraq and culminated with him? These are the three possibilities and Abu Hanifa must fall into one of them.
His partisans state that he instigated a totally new way of legal thinking based on the Book, Sunna and sound tradition from the Companions but such claims are unsupported. Opposing them are those who claim that Abu Hanifa was merely a follower and brought nothing new, except in respect of extrapolation and speed of derivation, and that the source of the method which he followed was Ibrahim an-Nahka‘i. One such person is Shah Waliyullah ad-Dihlawi who states, “Abu Hanifa, may Allah be pleased with him, was the strongest proponent of the school of Ibrahim and his contemporaries. He did not go beyond it except as Allah willed. He extrapolated according to Ibrahim’s school.” He concludes that Abu Hanifa did not bring any new ideas but was merely a follower and transmitter of an-Nakha‘i.
There is no doubt that this is an attack on the position of Abu Hanifa in fiqh because it makes him an imitator, or a followed imitator, not the master of a school of ijtihad. If, however, Abu Hanifa had been like this, he would not have had such an effect on subsequent generations. Furthermore, we also find that Abu Hanifa transmits many traditions from other sources than Ibrahim. An illustration of this is found in the Kitab al-Athar by ash-Shaybani where it is reported from Ibn ‘Abbas that if someone on hajj has intercourse after standing at ‘Arafat but before his tawaf, he owes a camel, completes the hajj, and his hajj is complete. Then he reports from Ibrahim that if he has intercourse before or after ‘Arafat and before tawaf, he owes a sheep, completes the hajj and must perform hajj again the following year.
Ash-Shaybani says, “The correct position is what Ibn ‘Abbas said. The school of Abu Hanifa is as the books of the school state: intercourse before standing at ‘Arafat invalidates the hajj, but it does not invalidate it after the standing, which is the opinion of Ibn ‘Abbas.” From this it is clear that Abu Hanifa completely abandoned Ibrahim’s opinion and accepted that of Ibn ‘Abbas which was related by ‘Ata’. This is part of the fiqh of Makka, not Kufa. So he left Ibrahim and Kufa. How can this be blind imitation of Ibrahim or the people of Kufa? Such exceptions are often seen in the traditions of Abu Yusuf.
The truth is that Abu Hanifa came onto the scene when Iraqi fiqh was mature but he did not confine himself to what he found there. He followed a path which another had begun and went to the end of the road. We are not partisan here and take a middle course in this matter. There is no doubt that the opinions of Ibrahim an-Nakha’i had a tremendous effect on the formation of the legal reasoning of Abu Hanifa and that this was his starting point in fiqh, but that does not mean that Abu Hanifa did not take from anyone else or pursue any other paths. It seems that Abu Hanifa began his legal studies with what his shaykh Hammad reported of Ibrahim’s fiqh. Then he completed his studies with others and deduced using analogy and evidence from the moment he took Hammad’s place in his circle until his death, a period of about thirty years.
Whatever the position of Abu Hanifa in relation to Ibrahim, there is no doubt that Abu Hanifa and Ibrahim were the two eminent personalities in the formation of Iraqi fiqh and that their legal reasoning was so close that it led scholars to make that claim and make the personality of the latter vanish into the former. It is a false assertion because unity in thinking is not like unity in opinion. Abu Hanifa was not an imitator. He clearly stated that he used ijtihad as Ibrahim had done.
Ibrahim, as the faqih of Iraq, had an initial influence on Abu Hanifa who then formulated his own fiqh. Common factors in their manner of legal reasoning can be discerned. Both of them turned to analysis of hadith to extract the meaning as will become clear when we examine Abu Hanifa’s reliance on hadith. Both interpreted hadiths in a legal manner to deduce the reasons for the rulings in them in order to then extend them through analogy to other matters. Ibrahim used mursal hadiths and Abu Hanifa also accepted mursal hadiths and used them as evidence.
But in spite of this agreement in legal reasoning we find that they differ in two important matters. One is that Abu Hanifa used a lot of the fiqh of Makka and Madina as the musnad of his hadiths indicate. The second is that Abu Hanifa used a lot of ramification and hypothetical cases and did not confine himself only to what he was asked about. He used to hypothesise problems and clarify their ruling and evidence. We will deal with Abu Hanifa’s position in respect of this.
Abu Hanifa and hypothetical fiqh
By hypothetical fiqh we mean the giving of fatwas about situations which have not actually occurred but are only imagined. The people of analogy and opinion did this a lot. In the course of deducing the reasons behind rulings established by the Book and Sunna, they had to theorise situations in order to ascertain the causes for the rulings and apply them. Abu Hanifa frequently used this method since he used analogy a great deal and derived the causes from the texts and their contexts. Some claim that he devised 60,000 such hypotheses, others 30,000. The last number is more likely. The History of Baghdad reports that when Qatada came to Kufa, Abu Hanifa went to him and asked him, “Abu’l-Khattab, what do you say about a man who is absent from his family for years so that his wife thinks that he has died and remarries but then the first husband returns: what do you say about her dowry?” He had told his companions who had gathered, “If he relates a hadith he will be lying. If he speaks by his own opinion he will err.” Qatada exclaimed, “Bother you! Has this occurred?” “No,” he replied. He said, “Why do you ask me about something that has not happened?” Abu Hanifa replied, “We prepare for affliction before it occurs. When it occurs, we will know what to do it and how to get out of it.” (pt. 12, p. 348)
Abu Hanifa’s leaning toward hypothesis and theorising was due to his profound grasp of the texts and his acting according to the consequences of the meaning and applying the ruling to all situations with similar root causes. Al-Hajawi claims that Abu Hanifa is the one who originated hypothetical fiqh. He said, “Fiqh in the time of the Prophet was confined to explicit rulings about what had actually occurred. After him, the Companions and great and minor Tabi‘un used to clarify the rulings regarding what occurred in their time while preserving the rulings for what had occurred before them and thus fiqh increased in its branches. Abu Hanifa is the one who unleashed theoretical questions, hypothesising situations that might occur and what their rulings would be, either by analogy based on what had occurred or by extracting general principles. So fiqh developed and grew.” (al-Fikr as-Sami, pt. 2, p. 107)
In fact, Abu Hanifa did not originate this method but he promoted and expanded it and added more branches and different forms of deduction. It originated before him from the circles of the fuqaha’ of opinion. Fuqaha’ after him continued to do the same although there was disagreement about its permissibility.
The fundamental principles on which Abu Hanifa based his fiqh
Abu Hanifa subjected questions to extensive ramification and close study, which inevitably led to hypothesising situations which had not occurred but which might occur, in order to clarify what their rulings would be. The books of ash-Shaybani are full of secondary questions transmitted from him. If we study them and analyse them in detail, we see that they must have been based on particular principles and that there must have been a basis for the rules of deduction used to extrapolate the rulings derived. History does not provide us with an exposition of these rules in detail connected to Abu Hanifa himself. However, there is no doubt that there are rules which Abu Hanifa used as a basis for his deductions and extrapolation.
We find such principles detailed in the books of the later people who forward them as the principles of deduction used in the Hanafi school and mention the differences between the Imams of that school on these principles and state: “This principle is the opinion of Abu Hanifa and that is the opinion of his companions and that is the opinion of all of them,” and so forth. Since the principles normally mentioned by writers are deduced by later writers and not mentioned by the Imams or their students, three points must be made.
- No detailed principles for the rulings of Abu Hanifa were related from him, although he must have had principles which he used in his reasoning, even if he did not write them down, just as he did not write down secondary rulings.
- The scholars who deduced the recorded principles, like al-Bazdawi and others, used to look for them in the statements of the Imams and the secondary rulings transmitted from them when they ascribed the principles to them. There are two categories: those ascribed to the Imam as the principles which they observed in deduction and the opinions of the fuqaha’ of the Hanafi school.
- Although detailed rules are not transmitted from Abu Hanifa for deduction, general rules for deduction are reported.
Abu Hanifa and legal evidence
As we read in The History of Baghdad. Abu Hanifa said, “When I do not find the ruling in the Book of Allah or the Sunna of the Messenger of Allah I can then take the statement of his Companions if I wish and leave those of other people. But I do not disregard their words for the words of anyone else. But when it is a question of Ibrahim an-Nakha’i, ash-Sha‘bi, al-Hasan, Ibn Sirin, or Sa‘id ibn al-Musayyab, then I can exercise ijtihad in the same way that they did.”
Al-Makki states in The Virtues: “Abu Hanifa took what was reliable, avoided the unseemly, and investigated people’s behaviour and what was correct for them and was in their best interests. He used analogy for matters but, if analogy led to something unseemly, he used istihsan if it was appropriate. If it was not appropriate, he referred to what the Muslims generally did. He used to attach himself to a known hadith on which people were agreed and then form an analogy if that was possible. He would then use istihsan and take whichever of them was more correct. Sahl said, ‘This knowledge of Abu Hanifa is, in fact, the knowledge of the common people.’”
He also says, “Abu Hanifa investigated which hadiths were abrogating and which abrogated and acted according to the hadith when he considered it established from the Prophet via his Companions. He knew the hadiths of the people of Kufa and was strong in following what he found in his land.”
From these sources, we can see that the order of legal evidence used by Abu Hanifa was the Book, then the Sunna, then the statements of the Companions, then consensus, then analogy, then istihsan and lastly custom. We will now have a brief look at these sources.
Fuqaha’ in the Hanafi school reflected on whether the Qur’an constituted text and meaning or meaning alone. Most scholars agree that the Qur’an constitutes text and meaning and it is important, at this point, to ascertain what Abu Hanifa’s opinion about it was. There is no definitive text by Abu Hanifa making that clear but there are secondary sources which point to a conclusion. One thing indicating his view is the fact that he allowed recitation of the Qur’an in the prayer in Persian and considered the person to have in that case fulfilled the obligation of recitation, whether or not he was able to recite in Arabic, even though he disliked him doing it if he was capable of reciting in Arabic. Abu Yusuf and Muhammad ash-Shaybani said, “Recitation in other than Arabic is only accepted in the case of inability to recite in Arabic.” Ash-Shafi‘i said, “It is not allowed in other than Arabic even if someone is unable. In such a case a person must call on Allah with what he knows and glorify Him.” Al-Bazdawi reports from Nuh ibn Abi Maryam that Abu Hanifa retracted that position. It states in the Kashf al-Asrar, “He returned to the common position.”
We must not forget the time in which Abu Hanifa lived, fifty years of which was under the Umayyads. He encountered Persians when they became Muslim in droves and their tongues made mistakes in Arabic and did not pronounce it well and many did not understand it well. He saw the ayats of the Qur’an being badly mispronounced and so he thought that as an allowance the non-Arab should be permitted to recite the meanings of ayats which were not subject to interpretation in a translated form. Then Abu Hanifa modified his position, only permitting the recitation of the Qur’an in translation for someone who was unable to recite it in Arabic.
The Qur’an contains the totality of the Shari‘a and in it are defined general rules and those rulings which will not change over the course of time. Thus it contains the eternal and universal Shari‘a for all mankind. The Sunna of the Prophet derives its strength from it and clarifies what needs to be clarified in it and provides necessary detail. Hence the Qur’an and the Sunna are inseparable as the basis of the Shari‘a. Scholars studied its composition and expressions and clarified the rulings it indicated and the strengthen of its evidence One area of Qur’anic evidence worth mentioning is the force of the ‘amm in the Hanafi school. ‘Amm (general) can be defined as a word which indicates various things with a shared meaning, for instance, as ‘human being’ indicates man, woman, black, white, Zayd, Bakr and Khalid while khass (particular) applies to a specific aspect of what is alluded to by a general expression, like ‘white’or ‘man’ in relation to ‘human being’. The Hanafis hold that, like the khass, the ‘amm is definitive in its evidence and can abrogate the khass, whether it occurs in the Qur’an or the Sunna. Al-Bazdawi mentioned that this was the view of Abu Hanifa. Accordingly, a particular solitary hadith will not alter the general meaning of the text.
Some ayats of the Qur’an connected to judgements require further clarification. They require some more details, or there is something implicit in them which requires explanation, or they are unrestricted and need to be qualified. Scholars – both fuqaha’ of opinion and fuqaha’ of tradition – agree that this is what the Sunna often does with respect to the Qur’an. Therefore the fuqaha’ who expounded the principles of the school of Abu Hanifa and its adherents undertook to clarify the Noble Qur’an. The manner in which the Sunna clarifies the Qur’an is divided into three categories.
- Clarification by confirmation. This is when the Sunna reinforces the meaning of an ayat.
- Clarification by explanation. This is when the Sunna clarifies something implicit in an ayat when the text is general. This would include such things explaining details of the prayer, zakat and hajj, or defining the minimum amount of theft which entails cutting off the hand.
- Clarification by supersession, which is abrogation. Abro-gation of the Qur’an by the Qur’an is permitted by the Hanafis, as is abrogation of the Qur’an by the Sunna, if it is confirmed by multiple transmission or well-known transmission.
This is the second source on which Abu Hanifa relied in his deduction. It is ranked after the Book because the Book is the foundation, root and primary source of the Shari‘a, while it is clear that the Sunna is one of its secondary sources, coming after it in consideration. It elucidates the Book and what elucidates comes after what is elucidated and serves it. Many traditions report that the Sunna is the second source of deduction and we see this in the hadith of Mu‘adh when the Prophet sent him to Yemen and asked him, “By what will you judge?” He replied, “By the Book of Allah.” He asked, “And if you cannot find it?” “By the Sunna of the Messenger of Allah,” he replied. He asked, “And if you do not find it there?” He replied, “Then I will exercise my opinion.”
‘Umar wrote to Shurayh the Qadi, “When a case comes before you, judge by what is in the Book. If something not in the Book of Allah comes to you, then judge by what is in the Sunna of the Messenger of Allah.” Similar things are related from other Companions. This is confirmed in what is transmitted from Abu Hanifa. He clearly stated the same We also find that the Hanafis differentiate between a matter established by the Qur’an when the evidence is definitive and a matter established by a confirmed sunna. Those commands established by Qur’an are obligatory (fard) and what is established in the Sunna is mandatory (wujub). It is the same with prohibitions. Anything forbidden by the Qur’an is haram, if there is no uncertainty in the evidence, and anything forbidden by a confirmed sunna is makruh (disliked), but makruh in a prohibitive way, whatever the evidence. This is a slightly lesser rank. There was conflict between the fuqaha’ regarding the amount on which Abu Hanifa relied on the Sunna in his legal reasoning, so that some of them went so far as to claim that he advanced analogy before the Sunna.
This requires some examination. Abu Hanifa was accused by his opponents, even during his lifetime, of clashing with the Sunna. Abu Hanifa himself denied this accusation. He stated, “By Allah, it is a lie about us
if someone says that we advance analogy over a text. Is there any need for analogy when a text exists?” (al- Mizan, ash-Sha‘rani)
So he only used analogy when there was strong need for it. He used to say, “We only use analogy when there is strong need for it. We look for evidence about the question in the Book, the Sunna and the decisions of the Companions. If we do not find anything then we use analogy since there is silence about the matter.”
(al-Mizan, ash-Sha‘rani) He also said, “We first take the Book, then the Sunna, then the decisions of the Companions, and we do what they agree about. If they differ, we use analogy by comparing one ruling with another when they have the same underlying cause so that the meaning is clear.” (al-Mizan, ash-Sha‘rani, p. 52) He also said, “We act first by the Book of Allah, then by the Sunna of the Messenger of Allah and then by the hadiths of Abu Bakr, ‘Umar, ‘Uthman and ‘Ali.” (al-Mizan, ash-Sha‘rani, p. 52)
It is reported that al-Mansur wrote to him, “I have heard that you advance analogy over hadith.” Abu Hanifa wrote back, “The matter is not as you have heard, Amir al-Mu’minin. I act first by the Book of Allah, then by the Sunna of the Messenger of Allah, and then by the decisions of Abu Bakr, ‘Umar, ‘Uthman and ‘Ali, and then by the decisions of the other Companions, and then, if they differ, I use analogy.” These are clear statements from Imam Abu Hanifa in which he strenuously refutes those allegations about preferring analogy over the hadith.
Abu Hanifa was one of the first fuqaha’ to accept single hadiths as evidence and to formulate his views according to them if he found a hadith which contradicted his opinion. We have mentioned how he retracted his view about the safe-conduct of the slave on the strength of the fatwa of ‘Umar which was related to him by a single source. Since he did that with the decision of a Companion, he is far more likely to have done so with the hadiths of the Prophet. This can be seen in the books of Abu Yusuf and ash-Shaybani.
Although it is evident that Abu Hanifa accepted the single report, there is disagreement about his position when single reports contradicted analogy. Did he reject the single report which clashed with analogy and consider the contradiction to be a flaw in the hadith, or did he accept the hadith and ignore the analogy because there is no analogy when there is a text?
Ibn ‘Abdu’l-Barr says, “Many of the people of hadith attack Abu Hanifa for rejecting a lot of single hadiths since his method of dealing with them was to compare them with what he had collected of hadiths and meanings of the Qur’an. If it deviated from that corpus, he rejected it.” However, according to al-Bazdawi, if the tradition came from a well-known Companion, famous for his fiqh and insight, like the four Rashidun khalifs, it was preferred over analogy. If the source was someone not known for his fiqh, then it was considered in the light of analogy and accepted or ignored.
Abu Hanifa and the evidentiary status of mursal hadiths
A mursal hadith is one where the Tabi‘i who relates it fails to mention the Companion who transmitted the hadith to him, saying, “The Messenger of Allah saidÉ” without making it clear how the hadith reached him. Al-Bazdawi used a wider definition of mursal and said that it is any hadith in which the isnad to the Prophet is not mentioned, and so it includes hadiths which a Companion did not hear directly from the Prophet, the mursal of the Tabi‘i or of any reliable person at any time. The Hanafis say that a mursal hadith is accepted from the Companions, Tabi‘un and the third generation, but not from those after them.
Examination of the sources shows that Abu Hanifa used to accept mursal hadiths from the first three generations, but not necessarily subsequent ones. We see that Abu Hanifa accepted mursal hadiths from those he knew and whose method he preferred and trusted. Ibrahim an-Nakha‘i was the shaykh of his shaykh and he preferred his path, whether his fiqh differed or agreed with his own opinion. In both cases, he was reliable and his transmissions were not doubted. Al-Hasan al-Basri enjoyed a comparable reliability. Abu Hanifa accepted his mursal hadiths and those which came from anyone who had a position of equivalent reliability.
In fact, mursal hadiths enjoyed widespread acceptance in Abu Hanifa’s time. This was before there was a great deal of forgery of hadiths so that scholars came to require isnads to ensure authenticity. We see that Imam Malik in the Hijaz also accepted mursal hadiths.
Fatwas of the Companions
We have mentioned that Abu Hanifa said that he acted by the decisions of the Companions in the absence of a text from the Book or Sunna. If there were differing opinions among the Companions, he chose from among their views, taking the position of whomever of them he wished, and he did not abandon their position for anyone else. When it came to the generation of the Tabi‘un, like Ibrahim an-Nakha‘i, Ibn Sirin, Sa‘id ibn al-Musayyab and others, he exercised ijtihad as they had done. He did not follow the opinion of a Tabi‘i or imitate him as he did in the case of the Companions.
Abu Hanifa used to differ from the Companions on matters in which there was scope for opinion. On matters in which there was no scope for opinion and where there was firm transmission, he followed them. That is why he took the period of menstruation to be a minimum of three and a maximum of ten days based on the position of Anas and ‘Uthman ibn Abi’l-‘As. He considered things such as this to be a matter of oral transmission not ijtihad. In brief, Abu Hanifa put the position of the Companions before analogy and this can be seen in many of his rulings. Some later Hanafis did the reverse, preferring opinion to the statement of a Companion. Abu Hanifa did not consider that it was mandatory to follow the fatwas of the Tabi‘un.
The definition on which most scholars who accept consensus as a principle of Muslim fiqh agree is that it denotes the agreement of the mujtahids of the Muslim Community on any matter at the time of ruling. This is the soundest definition and it is that which the majority of scholars prefer. It is the one which ash-Shafi‘i mentions in his Risala and he was the first to define its meaning and explain how it is used as evidence and to give it its weight in Islamic fiqh. Did Abu Hanifa also consider consensus as one of the principles of his fiqh on which he based his ijtihad?
Scholars of the Hanafi school state that it is one of his principles. They state that Abu Hanifa and his companions used to accept tacit consensus and thought that opposition to such consensus was only valid if scholars had two different opinions on a matter. We find two instances in the sources where this principle is mentioned. One is in The Virtues of al-Makki when he says: “Abu Hanifa was tenacious in following what the people in his land agreed upon.” (pt. 1, p. 98)
The second is what Sahl ibn Muzaham said: “Abu Hanifa took what was reliable and fled from the unseemly. He examined people’s behaviour and what they based themselves on and what was in their best interests.” (pt. 1, p.82)
These two transmissions from his contemporaries clarify that among his principles was that he followed what the fuqaha’ of his land agreed on. In matters about which there was no text, he proceeded in accordance with the behaviour of the people. This makes it clear, without a doubt, that he accepted the consensus of the mujtahids in general and was strong in following that. It appears that the consensus which counts as evidence with the fuqaha’ has three pillars:
- The Companions sometimes exercised ijtihad regarding questions which were presented to them. In many cases which arose where public well-being was concerned, ‘Umar would consult them and opinions would be exchanged. When they agreed, that would be his policy. If they differed, they argued until they reached something on which they agreed.
- In the era of ijtihad, every Imam used to strive not to have divergent positions contrary to those of the other fuqaha’ of his land so that he would not be considered aberrant in his thinking. Abu Hanifa was firm in following that on which there was consensus between the earlier fuqaha’ of Kufa. Malik, likewise, put the consensus of the people of Madina before single traditions.
- There are also traditions which confirm the evidentiary nature of consensus like the words of the Prophet, “My Community will never agree on misguidance,” and “What the Muslims see as good is good in the sight of Allah.”
We have mentioned that if Abu Hanifa did not find a text in the Book, Sunna or fatwas of the Companions, he exercised ijtihad and opinion to ascertain the different aspects to be examined in the question under review. Sometimes he was guided by analogy and sometimes by istihsan – the best interests of people and lack of harm in the deen. He used analogy unless doing do would lead to something unseemly and not in keeping with people’s behaviour, in which case he would use istihsan. People’s behaviour was his guide in both istihsan and analogy.
The analogy which Abu Hanifa mostly used was defined by scholars after him in a general definition: to explain the ruling about a matter without a text by ruling it according to something whose ruling is known by the Book, Sunna or consensus since both matters share the same underlying cause. Abu Hanifa’s ijtihad and his method in understanding the hadiths, coupled with the environment in which he lived, made him use a lot of analogy and ramify secondary rulings accordingly, because in his ijtihad, Abu
Hanifa did not stop at investigating the rulings of problems which had actually occurred but would extend his reasoning to rulings in respect of problems which had not occurred. He would theorise in order to be prepared for circumstances before they occurred so as to be ready to deal with them.
Thus Abu Hanifa’s method in understanding texts led to using a lot of analogy since it is not enough to recognise simply what the rulings indicate. One must know the events which formed the context of the text and how it was intended to benefit people and the reasons behind it, as well as any peculiarities which might affect the rulings. It is only on this basis that analogy can be correct. He used to ascertain the circumstances in which an ayat had been revealed. He studied those questions whose legal reasons were mentioned in hadith until he was considered the best of those who explain hadiths, because he did not confine himself to the outward sense but explained the intentions underlying the outward sense and what the hadiths indicated. The fact that there were not a great number of hadiths to be found in Iraq also compelled him to make more extensive use of analogy than he might otherwise have done. Abu Hanifa divided texts into two categories: those dealing with worship in which case he did not investigate the reasons behind the rulings because analogy was of no use in them, and those dealing with matters of this world. In these texts he would attempt to infer the underlying reason which could then be applied to other cases.
Abu Hanifa used istihsan a lot as we have noted previously. The great amount of the use of istihsan by Abu Hanifa was the focus for the attack of those who criticised its worth in fiqh. Some fiercely attacked the use of istihsan, and Abu Hanifa and his followers for using it, because they regarded it as allowing a ruling to be reached that was based on personal interpretation and feeling rather than an actual text and defined judgement.
Scholars at the time of Abu Hanifa and after him disagreed about istihsan. Malik, Abu Hanifa’s contemporary, used to say that istihsan was nine-tenths of knowledge, but ash-Shafi‘i, who came after them, used to say, “Anyone who uses istihsan has legislated for himself,” and he devotes a chapter in al-Umm to the “invalidation of istihsan”. But what was the istihsan about which some fuqaha’ disagree but about which there was no disagreement between the fuqaha’ of the Hijaz and Iraq, and which Malik considered nine-tenths of knowledge but which ash-Shafi‘i criticised? Hanafi fuqaha’ have explained the istihsan transmitted from Abu Hanifa and laid down the rules for legal reasoning in exercising ijtihad which involves istihsan. Part of their definition is that it is clear that the istihsan used by Abu Hanifa did not part from the text and analogy. The istihsan which he used was to restrain the analogy, if allowing its general application would be contrary to public interest, concern for which was the overriding consideration of the Shari‘a.
Fuqaha’ disagree regarding the istihsan which Abu Hanifa and his adherents used. Some of them define it as being, “Departure from what analogy entails to a ruling which is stronger than it.” This is a definition which does not embrace all forms of istihsan. The best definition in my view is that stated by al-Karkhi: “That the mujtahid depart from an established precedent in favour of another ruling for a stronger reason which necessitates turning away from the precedent.” This definition embraces all forms of istihsan.
We recall that earlier we mentioned what Sahl ibn Muzaham said about the basic principles on which Abu Hanifa based his deduction: “Abu Hanifa took what was reliable and fled from the unseemly. He examined people’s behaviour and what they based themselves on and what was in their best interests.” He also mentioned that he consulted the custom of the Muslims. This shows us two things:
- Things are carried out according to analogy or istihsan, even if there is no text, and the Muslim uses whichever of them is most in keeping with the case and the aims of the Shari‘a.
- When there is no analogy or istihsan on the question, Abu Hanifa looked to see what the behaviour of the people was. The behaviour of the people is the normative custom among them. He acted by the custom if there was no text in the Book, Sunna or consensus, and there had been no application of analogy based on another ruling or istihsan with all its methods.
Generally speaking, the sources indicate that making use of custom is one of the sources of deduction and one of the principles which can be used in the absence of any of the other principles. Ibn ‘Abidin says about the mufti, “The person who makes rulings must know the fiqh regarding the rulings of universal events and possess understanding of the actual situation and people’s circumstances in order to be able to distinguish between the truthful and liar, true and false and so forth. Thus when the mufti gives a fatwa based on custom, he must know the circumstances of the time and know whether this custom is general or particular.”
A note about Abu Hanifa’s fiqh
Abu Hanifa was a free man who wished for others’ freedom just as he desired it for himself. For that reason, he was very eager in his fiqh to show respect for man’s independence in his dealings, as long as he was sane. So he did not allow anyone to become involved in the private dealings of a sane person. It was not up to the community, or the authorities who represented it, to involve themselves in people’s private affairs as long as a religious injunction had not been violated or other people’s rights breached. Although it is necessary for the authorities to become involved in preserving public order, a person is not to be compelled to live his private life in a particular manner nor is it stipulated how he must deal with his private property. An example of this is seen in Abu Hanifa’s view of the authority of a sane adult woman regarding her marriage. He did not accord her guardian any authority over her and he is the only one of the four imams to take that position. We also find that he forbade declaration of legal incompetence in the case fools, heedless people and debtors and he also forbade any restriction whatsoever on the way a person disposed of his property except where the deen was concerned.
The Hanafi school, discussed by scholars, on whose principles questions are extrapolated, is not simply the position held by Abu Hanifa alone. It consists of his positions and those of his companions. If you wish, you could say that it is the position of the school of Abu Hanifa in Kufa, and then after his death it was taken by his students, Abu Yusuf and ash-Shaybani, to Baghdad. That is why the Hanafi school was an amalgamation and did not purely reflect the positions of Abu Hanifa in the way that the positions of Malik are reflected in the Maliki school and those of ash-Shafi‘i in his school. There are several reasons which resulted in the Hanafi school comprising this fusion of the opinions of Abu Hanifa, his companions and the fuqaha’ in Iraq contemporary with him, like ‘Uthman al-Batti, Ibn Shibrama and Ibn Abi Layla.
One reason for this was that Abu Hanifa’s statements are not transmitted in detail as distinct from the positions of others. The Iraqi position is transmitted as a corpus in which it is not easily possible to disentangle the various strands into the statements of each individual. Another reason is that, in his study of various problems, Abu Hanifa relied on the debate and discussion of those issues that took place among his students. Due to his immense scrupulousness, belief in the truth and respect for freedom of thought, he asked his students to follow the direction to which the evidence led. Abu Yusuf recorded the positions of Abu Hanifa along with his own views. Thus the positions presented are a composite.
Abu Hanifa’s students were in fact independent mujtahids in their own right. Each of them had his own opinion which might be similar or far from that of his shaykh, even if the methods they used were similar. If you read the books of the school of Abu Hanifa, you will often see a great difference in opinions because of this characteristic of his school. It was not only the companions of Abu Hanifa whose positions were mixed together. After them the views of other fuqaha’ were added to what had been transmitted from him and his companions. Some were Hanafis and some were not. All of this resulted in a lot of divergent views and choices, all of which was based on exact rules and clear principles. Thus what came to be Hanafi fiqh represents the fiqh of Iraq rather than simply the views of Abu Hanifa.
By: Shaykh Muhammad Abu Zahra (1898–1974), taken from The life and Time’s of Imam Abu Hanifah.