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Islamic Legal Thought: A Compendium of Muslim Jurists

ISLAMIC LEGAL THOUGHT  – Book Sample

PREFACE – ISLAMIC LEGAL THOUGHT

Several years ago we conceived the idea of a volume that would focus on the work of significant individual jurists. We drew up a list of prominent jurists and planned a book in which a chapter for each jurist would include a scholarly biography along with a translated sample of his work.

We have contributed our own chapters, and twenty colleagues have joined us by contributing a chapter on a jurist they are engaged in studying. Each chapter offers new biographical material on a particular jurist, along with a new translation of selections of his work.

Otherwise we did not ask the contributors to follow any particular format. Although practical consider- ations made it impossible to include all major jurists from each century, and to represent all schools, we hope that the combination of biography and translation in these twenty-three studies will offer a new way of look- ing at the development of Islamic legal thought.

All references to the Encyclopedia of Islam are to the second edition unless otherwise noted. In general, we use the EI system of transliteration, except that we use j instead of dj and q instead of ḳ. We have not standardized translations of passages from the Qurʾān. Each contributor has used the translation he or she thinks best. Otherwise, we shortened references in the notes and provided a complete bibliography at the end of the volume.

ABŪ ḤANĪFA (d. 150/767)

Life, disciples and Scholarship

Abū Ḥanīfa Nuʿmān b. Thābit b. Zūṭā al-Fārisī was born ca. 80/699–700 in Kufa and died in Baghdad in 150/767, reportedly at the age of 70. it is generally held that his grandfather Zūṭā was captured and brought as a slave to Kufa, where he was manumitted. Like his father Thābit, Abū Ḥanīfa was a merchant who dealt with khazz, a kind of silk, and report- edly was successful.

it was the Kufan jurist and traditionist al-Shaʿbī (d. ca. 104/722–3) who first stimulated his interest in the study of law and theology. The list of traditionists and jurists with whom he studied includes the leading mec- can jurist ʿAṭāʾ b. Abī Rabāḥ (d. ca. 114/732–3), Nāfiʿ (d. ca. 117/735–6), the mawlā of ibn ʿUmar, who transmitted many ḥadīths from him, the medi- nese traditionist hishām b. ʿUrwa (d. 146/763–4), and the medinese legal authority Rabīʿa b. Abī ʿAbd al-Raḥmān (d. ca. 136/753–4).1

Abū Ḥanīfa regularly attended the circle (ḥalqa) of Ḥammād b. Abī Sulaymān for eigh- teen or twenty years, until the latter’s death in 120/737–8, whereupon Abū Ḥanīfa became the leader of the circle. Toward the end of the Umayyad period (41–132/661–750),

 Abū Ḥanīfa was flogged because of his refusal to take the office of qadi of Kufa, offered by Yūsuf b. ʿUmar b. hubayra, then governor of iraq (r. 129–32/746–9). in 130/747–8 he fled to mecca, per- haps to avoid further punishment, and remained there for several yea

rs until he returned to Kufa during the reign of the second ʿAbbasid caliph al-manṣūr (r. 136–58/754–75). When al-manṣūr summoned him to Bagh- dad to appoint him as a qadi, he again refused to take up the post and was imprisoned. it is not clear whether Abū Ḥanīfa died in prison or after his release.

According to ismāʿīl b. Ḥammād b. Abī Ḥanīfa (d. 212/827–8), his grandfather Abū Ḥanīfa had ten disciples, among whom ismāʿīl regardedAbū Yūsuf (d. 182/798) and Zufar b. al-hudhayl al-ʿAnbarī (d. 158/774–5) as the most distinguished.2 According to the Ḥanafī jurist al-Sarakhsī (d. 483/1090), however, the names most frequently associated with the dissemination of Abū Ḥanīfa’s teachings are, in addition to Abū Yūsuf and Zufar, al-Ḥasan b. Ziyād al-Luʾluʾī (d. 204/819–20) and al-Shaybānī (d. 189/805), neither of whom are included in the ten disciples listed by ismāʿīl.3

Whether or not Abū Ḥanīfa composed any work on law is a matter of dispute.4 There are many reports that refer to his “book(s)” (kitāb, pl. kutub) on law,5 but none of these books is extant. This is curious because sev- eral theological works attributed to him—some mistakenly—are extant. if Abū Ḥanīfa did write works on law, Abū Yūsuf and/or al-Shaybānī may have neglected to transmit them in an attempt to standardize Ḥanafī doc- trine (see below, pp. 18–21).

Whatever the case may be, the most authoritative doctrines of Abū Ḥanīfa, Abū Yūsuf and al-Shaybānī, known collectively as ẓāhir al-riwāya (“authoritative transmission”), are compiled in six works (all extant) that are also called ẓāhir al-riwāya: Kitāb al-aṣl (or the Mabsūṭ), the Jāmiʿ al-ṣaghīr, the Jāmiʿ al-kabīr, the Ziyādāt, the Siyar al-ṣaghīr, and the Siyar al-kabīr—the chronological order in which they were first compiled.6 They are called ẓāhir al-riwāya because they were transmitted from al-Shaybānī by trustworthy persons through “either multiple or well-known chan- nels of transmission (immā mutawātira aw-mashhūra).”7

 Although the six works are attributed to al-Shaybānī, he is not their ultimate author. Al-Sarakhsī writes, regarding the compilation of the Jāmiʿ al-ṣaghīr, that Abū Yūsuf told him to put together what he remembered from what Abū Yūsuf had related to him on the authority of Abū Ḥanīfa.”8 This indi- cates that the original Jāmiʿ al-ṣaghīr contained the opinions of only Abū Ḥanīfa, excluding those of Abū Yūsuf and al-Shaybānī, which is not true…

Contribution to Ḥanafῑ Legal doctrine

Whereas muslims have traditionally regarded Abū Ḥanīfa, Abū Yūsuf, and al-Shaybānī as the founders of the Ḥanafī school of law, some modern western scholars have called into question their contribution to Ḥanafī doctrine. Schacht writes that it was common practice in iraq for a legal scholar or an author to ascribe his own doctrine to his master; for this reason, statements attributed by al-Shaybānī to Abū Ḥanīfa or Abū Yūsuf do not necessarily go back to these two scholars.11

 Schacht adds that the same holds for later Ḥanafīs, who attributed to the founders of the school opinions that they could not have held or opinions diametrically opposed to their real views.12

 hallaq clarifies in detail the process whereby legal opinions transmitted by the founders of a law school from their predeces- sors were subsequently ascribed to the founders themselves as well as the process of projecting later doctrine back to early authorities.

 he concludes that the authority of the founder of a school, including Abū Ḥanīfa, was constructed by attributing to him numerous legal opinions advanced by his predecessors and successors.13

To assess Abū Ḥanīfa’s real contribution to Ḥanafī doctrine, we must determine the authenticity of the opinions attributed to him in the works of (more exactly, in currency under the authorship of) al-Shaybānī.

The first question to be asked is: Can we regard the opinions ascribed to Abū Ḥanīfa in these works as genuine? As the above-mentioned modern schol- ars have suggested, it is often difficult to determine with certainty that such-and-such an opinion is that of Abū Ḥanīfa, while such-and-such an opinion was added by a Ḥanafī author active in the middle of the 3rd/9th century, who used the same premises as Abū Ḥanīfa.

A cursory examination of some of the books that constitute the Aṣl shows, however, that their compilers and/or transmitters carefully indicate the source of the opinions contained in them. For example, the compiler and/or transmitters of the chapter on leases (ijārāt) in Kitāb al-aṣl distinguish between, on the one hand, the citation of a statement of the founders of the school, either preceded by the phrase “such-and-such a person said” (e.g., “Abū Ḥanīfa said [qāla Abū Ḥanīfa]”) or expressed as “according to such-and- such a person” (e.g., “in the thesis of Abū Ḥanīfa [ fī qawl Abī Ḥanīfa]”), and, on the other hand, a solution inferred by systematic reasoning, usu- ally followed by a phrase such as “according to qiyās from the thesis of Abū Ḥanīfa ( fī qiyās qawl Abī Ḥanīfa)” (see below, Text A).

By extract- ing Abū Ḥanīfa’s opinions from the chapter on leases, we discern that they are in general so fully developed that the contribution of Abū Yūsuf and al-Shaybānī to Ḥanafī positive rules appears to have been secondary. For example, Abū Ḥanīfa’s statements regarding the contract of manufac- ture (istiṣnāʿ ) cover most of the topics discussed in later standard Ḥanafī works such as the Badāʾiʿ of al-Kāsānī.14

This is not to say that Abū Ḥanīfa created the main corpus of Ḥanafī positive rules. By examining al-Shaybānī’s Āthār and Kitāb al-ḥujja ʿalā ahl al-Madīna, we can assess the extent to which Abū Ḥanīfa owes his doctrine to his predecessors. most of the headings found in later Ḥanafi legal works are also found in the Āthār, with only a few exceptions such as usurpation (ghaṣb), agency (wakāla), waqf, and partnership (sharika).

The foundation of what became Ḥanafī doctrine was laid by the sayings attrib- uted to Abū Ḥanīfa’s iraqi predecessors, especially ibrāhīm al-Nakhaʿī (d. ca. 95/713–4). in Kitāb al-ḥujja, al-Shaybānī usually invokes the opin- ions of these iraqi predecessors to defend Abū Ḥanīfa’s position against those of the medinese jurists, but only after citing the relevant sayings of the Prophet and/or the Companions. Thus, the teachings of Abū Ḥanīfa

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