[Translated from Arabic by Omar Gebril, a
graduate from al-Azhar University, Islamic studies department.]
In a Nutshell: Hanafis have eight sources for deduction of their fiqh namely, Qur'an, Sunnah, qawl al-sahabah (statements of the Companions), ijma (consensus), qiyas (analogy), istihsan (juristic preference), urf (custom) and hiyal shari'ah (legal stratagems).Background
The juristic rulings (furu) deduced by Abu Hanifah are scattered in the books of his colleagues. He derived these rulings through deductive rules (usul) but did not record his usul in his books.
Only four books survived:
- al-Fiqh al-Akbar,
- al-Alim wa al-Mut'alim,
- Risalah to Uthman al-Bati and
- a book written in response to Qadariyah.
However, later scholars affiliated to the Hanafi madhab deduced the rules applied by Abu Hanifah from his rulings and ilal al-ahkam (underlying reasons of rulings) applied by Abu Hanifah in the processes of ilhaq (giving a similar ruling - similar to qiyas) and takhrij (deriving further rulings). (Ibn al-Nadeem, al-Fihris, Vol. 2, p. 338, Bazazi, al-Manaqib, Vol. 2, p. 108) Abu Hanifah's Sources of Legislation
After reviewing the Hanafi books of usul, eight main sources applied by Abu Hanifah in his deduction of rulings become evident, namely:
- Ijma (consensus),
- Qawl al-Sahabi (statements of a Companion),
- Qiyas (analogy),
- Istihsan (legal preference),
- Urf (custom), and
- Hayal Shari'ah (legal stratagems).
(Sarakhsi, al-Mabsut, Vol. 1, p. 12; Ibn Abdul Bar, al-Intiqa, Vol. 1, p. 82; Mufaq al-Makki, Manaqib al-Imam Abu Hanifah, Vol. 1, p. 89; Mana al-Qatan, Tarikh al-Tashri al-Islami, p. 322)1. Qur'an:
Abu Hanifah considered the Qur'an as the first and firmest source of legislation in Islam for Qur'an is qat'i al-thubut (transmitted in its original form without any doubt).
Only a mutawatir hadith (hadith transmitted by large numbers making its transmission beyond doubt) can be equal to any Qur'anic verse in respect of its absolute historical reliability and authority.
Therefore, Abu Hanifah thus viewed ahad hadith (non-tawatur transmitted hadith reported by 1-3 narrators in each layer of isnad) could not abrogate (naskh) the Qur'an. (Mawsili, al-Ikhtiyar, Vol. 1, p. 56, Ghawji, Sirat A'imat al-Madhahib, p. 110)2. Sunnah:
Sunnah is the second source of legislation after the Qur'an according to Abu Hanifah.
He used to scrutinize the trustworthiness of the narrators of a hadith and the authenticity of their narrations. He accepted only the mass transmitted hadith, or a hadith on which jurists of different regions agreed upon its validity thereupon it becomes a mashhur hadith (well-known hadith). Therefore, the validity of hadiths becomes limited in deduction of rulings. (Mana al-Qatan, Tarikh al-Tashri al-Islami, Vol. 223)3. Aqwal Al-Sahabah (Statements of the Companions):
Abu Hanifah considered the fatwas (verdicts) of Companions as a source of legislation. Although Abu Hanifah abides himself with the positions of the Companions of the Prophet (saw), he would choose the more recommended view when they disagree depending on their rank (being a faqih or narrator), authority of transmission or by using ijtihad in deducing the more likely correct view. But when there is no view narrated from them on a certain issue, he would use his ijtihad.
Abu Hanifah explains his methodology with regards to aquwal al-sahabah and the above sources as reported by the ibn Abd al-Bar in his book al-Intiqa:
آخُذُ بِكِتَابِ اللَّهِ , فإن لَمْ أَجِدْ فَبِسُنَّةِ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ , فَإِنْ لَمْ أَجِدْ فِي كِتَابِ اللَّهِ وَلا سَنَةٍ رَسُولِ اللَّهِ صَلَّى اللَّه أَخَذْتُ بِقَوْلِ أَصْحَابِهِ، آخُذُ بِقَوْلِ مَنْ شِئْتُ مِنْهُمْ , وَأَدَعُ قَوْلَ مَنْ شِئْتُ مِنْهُمْ، وَلا أَخْرُجُ مِنْ قَوْلِهِمْ إِلَى قَوْلِ غَيْرِهِمْ،فإذا انْتَهَى الأَمْرُ أَوْ جَاءَ إِلَى إِبْرَاهِيمَ وَالشَّعْبِيِّ وَابْنِ سِيرِينَ وَالْحَسَنِ وَعَطَاءٍ وَسَعِيدِ بْنِ الْمُسَيِّبِ وَعَدَّدَ رِجَالا فَقَوْمٌ اجْتَهَدُوا , وَأَجْتَهِدُ كَمَا اجْتَهَدُوا - ابن عبد البر، الإنتقاء 1/ 82 4. Ijma (Consensus)
Firstly, I follow the Book of Allah, but if I do not found (the ruling) in the Book of Allah, then I follow Sunnah of the Prophet (saw), then if I have not found (the ruling) in the Book of Allah or the Sunnah of the Prophet (saw), I follow the positions of the Companions. I follow whomever I wish among them but I do not disregard their words for the words of anyone. But when it is a question of Ibrahim Nakha'i, Sha'bi, Ibn Sirin, al-Hasan, or Said ibn Musayyab, then I can exercise ijtihad in the same way that they did. (Ibn Abd al Bar, al-Intiqa, Vol. 1, p. 82)
Hanafis as well as the majority of Muslim jurists including Shafi'is, Malikis and Hanbalis, agree on the validity of ijma as a source of legislation. (Jassas, al-Fusul fi al-Usul, Vol. 3, p. 271)
Ibn al-Arabi defined Ijma as the unanimous agreement of the mujtahids (who can deduce rulings from the primary sources) of the ummah in a specific age on a certain legal ruling. (Ibn al-Arabi, al-Mahsul, p. 121)5. Qiyas (Analogy)
According to Hanafis, Qiyas is a secondary source of legislation that comes after the primary sources i.e. Qur'an and Sunnah.
Scholars, such as Ibn al-Arabi, define qiyas as the process of linking a known (ma'loom) situation (but carries no ruling in shari'ah) with a known situation and its ruling, as regards to the confirmation or negation of a hukm (ruling) by a way of confirmation or negation of a sifa (property). (Ibn al-Arabi, al-Mahsul, p. 124)
Abu Hanifah employed qiyas to explain a matter without a text by comparing it to a matter whose ruling is known by Qur'an, Sunnah or Ijma, in which both matters share the same underlying cause.
Abu Hanifah also extended his use of qiyas because of his method in understanding the hadith, as he considered it was not enough to know the ruling, but one needs to know the events and context of the text, its intention and how it benefited people, the reasons behind it, as well as any peculiarities which might affect the rulings. (Mana al-Qatan, p. 332)Objections:
Abu Hanifah was fiercely criticized by many of his contemporaries and successive scholars for the excessive use of qiyas over text (nass).
Abu Hanifah rejected their claims out of hand by saying:
كَذَبَ وَاللهِ وَافْتَرَى عَلَيْنَا مِنَ يَقُولُ: إِنَّنَا نُقَدِّمُ القِيَاسَ عَلَى النَصِّ، وَهَلْ يَحْتَاجُ بَعْدَ النَصِّ إِلَىَ قِيَاسِ - السرخسي، المبسوط 12/1، وعلي جمعة، المدخل إلي دراسة المذاهب الفقهية 93
By Allah, the claim of those who said we give priority to qiyas over text (nass) is false. Is there any need for qiyas when a text (nass) exists?! (Sarakhsi, Al-Mabsut, Vol, 1, p. 12; Ali Gomah, Al-Mudkhal li Dirasat al-Madhab al-Fiqhiyyah, p. 93)
نَحْنُ لاَ نَقِيسُ إِلاَّ عِنْدَ الضَّرُورَةِ الشَّدِيدَةِ، وَذَلِكَ أَنَّنَا نَنْظُرُ فِي دَلِيلِ المَسْأَلَةِ مَنَ الكِتَابِ وَالَسُنَّةِ أَوْ أَقْضِيَةِ الصَّحَابَةِ فَإِنْ لَمْ نَجِدْ دَلِيلاً قِسْنَا حِينَئِذٍ مَسْكُوتًا عَنْهُ عَلَىَ مَنْطُوقٍ بِهِ - السرخسي، المبسوط 12/1، وعلي جمعة، المدخل إلي دراسة المذاهب الفقهية 93
We only make qiyas in necessary cases. That is when we search for the evidence in the Qur'an, Sunnah and verdicts of the Companions and did not find the ruling in these sources. We then drew an analogy between an unlegislated case and a legislated matter. (Sarakhsi, Al-Mabsut, Vol, 1, p. 12; Ali Gomah, Al-Madkhal li Dirasat al-Madhab al-Fiqhiyyah, p. 93)
These narrations illustrate Abu Hanifah did not give priority for qiyas over nass and sought to apply qiyas only in limited cases.
In fact, his application of qiyas was based on exacting methodological standards, and not subject to whims and desires. Hanafis rejected qiyas in the presence of a well-established text from Qur'an and Sunnah and even ahad hadith. Qiyas could not violate ijma of scholars and rejected when considering legal numerical values (al-maqadir) (such as the menstruation period) and in the establishment of hudud (legal fixed punishments) and kafarat (expiations). Besides, they disallowed qiyas in naskh (abrogation), and in particularisation of the general expression (takhsis al-aam) not specified by the Qur'an or the well-established Sunnah. (Jassas, al-Fusul fi al-Usul, Vol. 4, p. 105)6. Istihsan (Juristic Preference)
Istihsan was controversially used by Abu Hanifah and his school as a source of legislation. Sarakhsi defines istihsan as moving away from qiyas to what is better for the people. Some said:
Istihsan means to seek ease and convenience in legal injunctions whether in al-khas (the specific) or al-aam (the general).
It is to adopt what is accommodating and seek mildness. Other group said: it is to adopt tolerance and seek what gives comfort. (Sarakhsi, Al-Mabsut, Vol. 10, p. 145)
These definitions indicate that the general idea of istihsan is to deviate from hardship and seek ease. This notion is in tune with the shari'ah which seeks for us ease and does not intend for us hardship, as Allah says,
يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ - البقرة 185/2Difference between Qiyas and Istihsan:
Allah intends for you ease and does not intend for you hardship (Qur'an 2:185)
Qiyas and istihsan represent two types of qiyas: qiyas jali (obvious analogy), called qiyas, and qiyas khafi (hidden or assumed analogy), called istihsan.
Qiyas khafi is stronger in effect than qiyas jali. Thus, qiyas khafi is called istihsan or qiyas mustahsan (approved analogy). (Sarakhsi, Al-Mabsut, Vol, 10, p. 145)
For examples, the jurists said that waqf (charitable endowment) of cultivated land may include all ancillary rights (rights of flow, water and passage) attached to the property without being indicated in waqh. They based this ruling on istihsan.
In qiyas jali (obvious analogy), however, these ancillary rights are not included in contract and they can only be included in waqf if they are explicitly identified. Analogy has been drawn between sale and waqf as both involve a transfer of ownership.
Application of qiyas jali leads to inequitable results: the waqf of cultivated land, without its ancillary rights, would frustrate the basic purpose of waqf, which is to facilitate the use of the property for charitable purposes. To avoid hardship, resort is made to qiyas khafi (i.e. istihsan). In istihsan, the parallel is drawn to the contract of lease (ijarah) since both involve a transfer of usufruct (benefit). Since the rights of flow, water and passage are included in ijarah, even without a clear reference to the usufruct, these ancillary rights would be attached to waqf even without a reference to it. (Ibid, Vol, 10, p. 145)7. Urf
In the absence of text (nass) Abu Hanifah applies qiyas and istihsan on a matter. But in the absence of qiyas and istihsan, Abu Hanifah resorts to urf (custom) of the people. That is their normative customs among them. He acted on urf when there was no text in Qur'an, Sunnah or Ijma, and no application of qiyas based on another ruling or istihsan.8. Legal Stratagems (Hiyal Shari'ah)
According to Hanafis, hiyal shari'ah represents a makharaj (legal exit) to ease difficulties by providing a legal exit.
The majority of scholars (especially the Malikis and Hanbalis) refuse to validate such a concept as instead, they theorize the doctrine of sadd al-dhara'i (blocking the ways to evil and sins) which contradicts the concept of hiyal shari'ah.
However, most of hiyal shari'ah ascribed to Abu Hanifah are usually in cases related to issues of ayman (oaths) in general, and divorce in particular. In fact, these hiyal are not pretexts to abolish a valid ruling, but rather are based on a jurisprudential deduction that seeks to find a way out of a deadlock.
An example of hiyal would be a man swearing to have sexual intercourse with his wife during the day in Ramadan. Thus, Abu Hanifah gave him a fatwa to travel during the day in Ramadan with his wife (for travelling is one of the causes that permit the fasting person to break his fast). (Mana al-Qatan, Tarikh al-Tashri al-Islami, p. 334)
Sarakhsi presented some evidences from the Qur'an and sunnah to legalize this concept.
وَخُذْ بِيَدِكَ ضِغْثًا فَاضْرِبْ بِهِ وَلَا تَحْنَثْ – ص 38/44
And take in your hand a bunch [of grass] and strike with it and do not break your oath. (Qur'an 38:44)
This verse is about Ayoub (as) who had vowed to lash his wife one hundred lashes when she told him to slaughter a goat in the name of Satan. Allah instructed Ayoub (as) how to find an exit from this vow whilst at the same time fulfilling his vow.
Also, when Prophet Yusuf (as) undertook a trick to have his brother brought to him as mentioned in the Qur'an:
وَلَمَّا جَهَّزَهُم بِجَهَازِهِمْ قَالَ ائْتُونِي بِأَخٍ لَّكُم مِّنْ أَبِيكُمْ ۚ أَلَا تَرَوْنَ أَنِّي أُوفِي الْكَيْلَ وَأَنَا خَيْرُ الْمُنزِلِينَ – يوسف 12/59
And when he had furnished them with their supplies, he said, "Bring me a brother of yours from your father. Do not you see that I give full measure and I am the best of accommodators? (Qur'an 12:59)
فَبَدَأَ بِأَوْعِيَتِهِمْ قَبْلَ وِعَاءِ أَخِيهِ ثُمَّ اسْتَخْرَجَهَا مِن وِعَاءِ أَخِيهِ ۚ كَذَٰلِكَ كِدْنَا لِيُوسُفَ ۖ مَا كَانَ لِيَأْخُذَ أَخَاهُ فِي دِينِ الْمَلِكِ إِلَّا أَن يَشَاءَ اللَّهُ ۚ نَرْفَعُ دَرَجَاتٍ مَّن نَّشَاءُ ۗ وَفَوْقَ كُلِّ ذِي عِلْمٍ عَلِيمٌ – يوسف 12/76
So he began [the search] with their bags before the bag of his brother; then he extracted it from the bag of his brother. Thus did We plan for Joseph. He could not have taken his brother within the religion of the king except that Allah willed. We raise in degrees whom We will, but over every possessor of knowledge is one [more] knowing. (Qur'an 12:76)
Also, when a man told the Prophet Muhammad (saw) he had vowed to divorce his wife if she contacted his brother, he (saw) answered him:
طَلِّقْهَا وَاحِدَةً، فَإِذَا انْقَضَتْ عِدَّتُهَا فَكَلِّمْ أَخَاكَ ثُمَّ تَزَوَّجْهَا – السرخسي، المبسوط، 30/210Conclusion
Divorce her once, and when she completes her waiting period, then make contact with your brother and then marry her. (Sarakhsi, al-Mabsut, vol. 30, p. 210)
Abu Hanifah did not record his personal deductive rules (usul), instead, later scholars from his madhab deduced these rules from his narrated judgements and ilal al-ahkam (underlying reasons of rulings).
Hanafis cite eight usul they adopt within their school of thought namely:
- Qawl al-Sahabah (statements of the Companions),
- Ijma (consensus),
- Qiyas (analogy),
- Istihsan (juristic preference),
- Urf (custom) and
- Hiyal shar'iah (legal stratagems).
With regards to claims of some critics that Abu Hanifah gave priority to qiyas over text (nass), this claim is invalid as he would always follow Qur'an and Sunnah, and if he could not find a ruling in either he would apply reason. References
Khatib Baghdadi, Tarikh Baghdad
Ibn al-Nadeem, al-Fihris
Ibn al-Bazazi, al-Manqib
Ibn Abdul Bar, al-Intiqa
Ghawji, Sirat A'imat al-Madhahib
Mufaq al-Maki, Manaqib al-Imam Abu Hanifah
Wahbi Suliman Ghauqi, Sirat A'amat al-Madhahib al-Fiqhiyyah
Musili, Al-Ikhtiar li Ta'lil al-Mukhtar
Mana al-Qatan, Tarikh al-Tashri al-Islami
Ali Gomah, Al-Mudkhal li Dirasat al-Madhab al-Fiqhiyyah
Jassas, al-Fusul fi al-Usul