النص المفهرس

opinions of Ibrahim anNakha'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 f a q i h of Iraq, had an initial influence on Abu Hanifa who
then formulated his own figh. 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 S u n n a, 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'1-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 aff l i c t i o n 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 f i q h 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 diff e r e n t forms of deduction. It
originated before him from the circles of the f u q a h a ' of opinion. Fu q a h
a ' 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 alBazdawi 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 Vi rt u e s: "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 h a d i t h on which
people were agreed and then form an analogy if that was possible. He would
then use i s t i h s a n 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 h a d i t h s w e r e 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.
The Book
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 a y a t s of
the Qur'an being badly mispronounced and so he thought that as an
allowance the nonArab should be permitted to recite the meanings of a y a t s
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 S h a r i ' 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 S h a r i ' a for all mankind. The S u
n n a 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 S u n n
a a r e 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 S
un n a clarifies the Qur'an is divided into three categories.
· Clarification by confirmation. This is when the S u n n a r e i nforces the
meaning of an ayat.
· Clarification by explanation. This is when the Sunna clarifies something
implicit in an a y a t when the text is general. This would include such things
explaining details of the prayer, z a k a t and h a j j, or defining the minimum
amount of theft which entails cutting off the hand.
· Clarification by supersession, which is abrogation. Abrogation 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.
The Sunna
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 S u n n a 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 s u n n a. 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 s u n n a is m a k ru h (disliked), but m a k ru h 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 S u n n a. 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." (alMizan, 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 f u q a h a ' 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 h a d i t h att a c k 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
figh, 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 said ... " 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 m u r s a l
ha dith is accepted from the Companions, Ta b i ' 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 authentici ty. We see that Imam Malik in
the Hijaz also accepted m u r s a l 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 S u n n a. 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.
Consensus
The definition on which most scholars who accept consensus as a principle of
Muslim figh 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 fi q h
on which he based his i j t i h a d? 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 un seemly. 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 i j tih a d, every Imam used to strive not to have d i v e rgent
positions contrary to those of the other f u q a h a ' o f 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 fu q a ha '
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."
Analogy
We have mentioned that if Abu Hanifa did not find a text in the Book, S u n n
a or fat w a s of the Companions, he exercised i j t i h a d 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, S u n
n a or consensus since both matters share the same underlying cause.
Abu Hanifa's i j ti h a d and his method in understanding the h a d i t h s,
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 a y a t h a d been
revealed. He studied those questions whose legal reasons were mentioned in
hadith until he was considered the best of those who explain h a d i th s ,
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.
Istihsan (Discretion)
Abu Hanifa used i s t i h s a n a lot as we have noted previously. The great
amount of the use of i s t i h s a n by Abu Hanifa was the focus for the attack

of those who criticised its worth in figh. 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 i j tih a d
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 m u j t a h i d 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.
Custom ('urf)
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 u n s e e m 1 y. 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 i s t i h s a n 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 f a t w a 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.
Concluding Note
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 m u j t a h i d s i n 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 fugaha' 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.
Imam ash-Shafi'i
(150/767 - 204/820)
Preface
Imam ash-Shafi'i's fi q h represents the fullest paradigm of Islamic fiqh at
the time when it flowered and its development was complete. His fiqh unites
the people of opinion (ra'y) and the people of hadith in a balanced manner.
He is the faqih who systematised opinion and set out the criteria for making
analogy. He was the first to attempt to formulate the Sunna and to lay down
rules and criteria for its legal use, to specify the methods for understanding
the Book and the Sunna and to clarify the abrogating and abrogated. Through
these efforts and setting out the principles of fiqh, he established firm
foundations for the science of deduction and the bases of extrapolation. To
study him and the method of his deduction is to study Islamic fiqh when its
growth was complete, its distinguishing features were clear and its methods
were established.
An examination of ash-Shafi'i and his fi q h will necessarily touch on the
fiqh of the people of the Hijaz and their methods of investigation because he
trained with Malik, the Imam of the Abode of the Hijra and Shaykh of the

Hijaz in his time. It will also touch on the fi q h of the people of Iraq because
he studied their books, was connected to Muhammad ibn al-Hasan ash-
Shaybani who wrote them down, and stayed among them and debated and
argued with them. A debater is affected by the method, path and thought
patterns of his opponent in the same way that a warrior is affected by the
strategy, tactics and thought patterns of his enemy.
Imam ash-Shafi'i, then, studied all the areas of Islamic fi q h when it was at
its high point of growth and perfection and was the one who laid down the
principles of fi q h, meaning the general principles for the deduction of legal
rulings from accepted sources. To study him is to study the fundamentals of f
i q h. He began to define and isolate and to make a position for himself that
was distinct from the earlier practitioners of fiqh. Ash-Shafi'i dictated or
wrote his general books on the principles of his school and the techniques of
his i j tih a d and he developed the science of legal methodology and
illuminated the way for those who wanted to study it and to know its path.
In this study we will look at his upbringing, education, shaykhs and students.
All of this is the study of his life. Then we will study his time and then his
figh. We will examine his works, how they were written, and how reliable
they are. We will study the principles which were set out for deduction and
the techniques which he used in making deduction, as well as his thought in
general.
Chapter One Lineage, Birth and Life History
Transmissions agree that Muhammad ibn Idris ash-Shafi'i was born in 150
AH which is the year in which Imam Abu Hanifa died. Some of them add
that he was born on the very night that Abu Hanifa died, although there is no
real evidence for this. Most historians say regarding his lineage that his father
was a Qurayshi descended from al-Muttalib and that his full name and
lineage is Muhammad ibn Idris ibn al-'Abbas ibn 'Uthman ibn Shafi' ibn
'Ubayd ibn 'Abu Yazid ibn 'Abdi'l-Muttalib ibn Hashim ibn 'Abd Manaf.
Both he and the Prophet are descended from 'Abd Manaf through 'Abdu'l-
Muttalib.
Ash-Shafi'i was descended from 'Abd Manaf whose sons were al-Muttalib,

Hashim, 'Abd Shams, the ancestor of the Umayyads, and Nawfal. Al-
Muttalib raised 'Abdu'l-Muttalib, the son of his brother Hashim, the
grandfather of the Messenger of Allah, may Allah bless him and grant him
peace. The Banu'l-Muttalib and Banu Hashim were one unit opposed by the
Banu 'Abd Shams in the Ja hili y y a . This had two consequences after the
advent of Islam.
Firstly, when Quraysh ostracised the Prophet and those of the people of his
clan who helped him, the Banu'l-Muttalib supported him, both Muslims and
unbelievers, and accepted the injury with him. Secondly, the Prophet, may
Allah bless him and grant him peace, gave them the share allotted to close
relatives according to the words of Allah, "Know that when you take any
booty a fifth of it belongs to Allah, and to the Messenger, and to close
relatives, orphans, the very poor and travellers," (8:41) and did not give it to
the Banu 'Abd Shams or Banu Nawfal.
His mother was from Azd and was not a Qurayshite. Some partisans of ash-
Shafi'i claim that she was an Qurayshite descended from Sayyiduna 'Ali, but
the truth is that she was from Azd. ArRazi mentioned that the transmission
that she was Qurayshite is rare and contrary to the general consensus. He
said, "As for the lineage of ash-Shafi'i from his mother, there are two
statements. The first, which is rare and is related by Abu 'Abdullah al-Hakim,
is that she was Fatima bint 'Abdullah ibn al-Husayn ibn 'Ali. The second is
that she was from Azd."
It is clear from this that ash-Shafi'i was Qurayshi. He grew up in a poor
family who were displaced in Palestine. They lived in the Yemeni quarter
there. A number of transmissions are related from ash-Shafi'i which indicate
that his father died when he was young and his mother took him to Makka to
live, fearing he would lose the title of being a s h a r i f. Yaqut reports that
ash-Shafi'i said, "I was born in Ghazza in 150 and taken to Makka when I
was two." It is also related that he was ten when he arrived in Makka.
Reports agree that he lived the life of a poor orphan. So ashShafi'i was born
with a noble lineage - the noblest of lineage in his time and one which is still
the noblest - but he lived a life of poverty until he was grown-up. Growing
up in poverty combined with a noble lineage gives a person strong character
and noble conduct. If there are no impediments and no irregularities, that
nobility from youth will cause him to direct himself to noble matters, to be

averse to the base and above the lowly. He will not be content with lowliness
but will strive for glory with zeal and resolve to remove the infamy of
poverty and the baseness of need.
Another result of the fact that he grew up poor in spite of his proud ancestry
was that it made him aware of the feelings of people when he was with them
and enabled him to recognise the things hidden inside them and their society
and to be aware of their emotions. That is a necessary quality for all who
devote themselves to the reform of society and the regulation of its states and
ties, as well as to elucidating the Shari'a, extracting its truths and discovering
its measures and criteria.
Ash-Shafi'i grew up in a poor household as an orphan, as we have explained.
His mother wanted to connect him to his relatives out of fear of his losing
touch with his lineage. The various transmissions make it clear that his
intelligence and cleverness became apparent during his primary education.
For instance, when ashShafi'i memorised the Qur'an, his great intellectual
capacity was evident from the speed with which he memorised it. Then after
memorising it, he proceeded to memorise the h a d i t h s of the Messenger of
Allah, may Allah bless him and grant him peace, and was eager to do so. He
listened to hadith scholars and memorised the hadiths he heard, and then
wrote them down sometimes on clay tablets and sometimes on skins. All
transmissions indicate that he was devoted to knowledge of and love for the
hadiths of the Prophet from his earliest youth.
Along with the memorisation of Prophetic h a d i t h s and the Book of Allah,
he sought to become eloquent in Arabic and to avoid the non-Arabic words
which had begun to invade Arabic because of contact with non-Arabs in
cities and towns. This was the primary education of ash-Shafi'i, which was
the most exemplary Arabic education at the time: memorisation of the Qur' a
n , seeking ha dith , clear and eloquent Arabic, and training in
horsemanship which was known by settled people and nomads.
His quest for knowledge
Ash-Shafi'i sought knowledge in Makka from f u q a h a ' a n d hadith
scholars who were there, becoming so eminent that Muslim ibn Khalid al-

Zanji gave him permission to give fatwa, saying to him, “Give fatwa, Abu
'Abdullah. You may now give fatwa."
Ash-Shafi'i could have stopped when he reached this stage but his zeal for
knowledge did not stop at any limit, for knowledge has no limits or borders.
He heard about Malik, the Imam of Madina. At that time the name of Malik
had spread throughout the lands of Islam and people travelled to him for
knowledge from far and wide. He was the most important source of
knowledge and hadith. Ash-Shafi'i was eager to emigrate to Madina to seek
knowledge but did not want to go to Madina without some knowledge of
Malik's teaching. He borrowed Malik's book al-Muwatta' from a man in
Makka and read it; according to the transmission, he memorised it. He read
al-Muwatta' to increase his desire to go to the Imam of the Abode of the
Hijra.
Ash-Shafi'i went to Malik with a letter of recommendation from the governor
of Makka. It was with this emigration that the life of ash-Shafi'i began to be
directed towards figh in particular. When Malik, who had great insight, saw
him, he said, "O Muhammad, fear Allah and avoid acts of disobedience. You
will be a man of great standing. Allah Almighty has cast light into your heart,
so do not extinguish it through disobedience. Then he told him, "Come
tomorrow and bring what you have read." Ash-Shafi'i said, "I went to him
and began to read aloud with the book in my hand. When I wanted to stop
because of my awe of Malik, he indicated that he liked my reading and
inflection and said, 'Go on, boy,' until I had read it to him in a few days."
After ash-Shafi'i had related the M u w a t t a ' from Malik, he remained with
him to learn fi q h and to study the problems on which Malik gave fatwa
until the latter's death in 179 AH. AshShafi'i had now reached the prime of
his youth. It seems that during the time he spent with Malik he also used to
absent himself from time to time and would make journeys to other lands of
Islam to learn what an intelligent traveller can learn about the circumstances
of their people and the situation of their communities. He used to go to
Makka to visit his mother and seek her advice. She was a lady of nobility,
good behaviour and excellent understanding. Thus his remaining with Malik
did not prevent him from travelling and broadening his experience.