Indexed OCR Text

fatwas are five. The first is firm texts. If there was a firm text, he gave a fatwa
accordingly, and did not pay any attention to what was contrary to it. That is
why he put the text before the fatwas of the Companions. Ibn al-Qayyim
gives examples of his disregarding fatwas of the Companions in favour of a
text. One example was his preferring the h a d i t h of the Aslamite woman
and so considering the 'idda of a pregnant widow to end when she gives birth
and not the longer of the two terms," which was the fatwa given by 'Abdullah
ibn 'Abbas and 'Ali in one of two transmissions. Nor did he pay any attention
to the position of Mu'adh and Mu'awiya about Muslims inheriting from
nonMuslims, because of the hadith which prohibits it.
The second basis is the undisputed fatwas of the Companions. If one of them
had given a fatwa and there was no known opposition to it, he did not follow
anything else, but he did not call that consensus. He said out of
scrupulousness, "I do not know of anything to refute it." An example was
accepting the testimony of a
1. Ahmad did not consider that she had to wait to the end of the full term of a normal ' id
d a or waiting period of four months and ten days. Her ' id da en de d when she gave birth,
even if that was only a day after the death of her husband.
slave. It is related that Anas said, "I do not know of anyone who rejects the
testimony of a slave." Ibn al-Qayyim said, "If Imam Ahmad found this type
of statement from a Companion, he did not prefer opinion or analogy to it."
The third of the five bases mentioned by Ibn al-Qayyim is that in the case of
a disagreement between the Companions, he would choose the statement
which was closest to the Book and Sunna but would not leave their
statements for anything else. If it was not clear which of the statements was
most in accord, he related the disagreement and did not take a definite
position. Ishaq ibn Ibrahim said in his Questions, "Abu 'Abdullah was asked,
'What about when a man is among his people and is asked about something
about which there is disagreement?' He said, 'He gives f a t w a according to
what agrees with the Book and S u n n a a n d avoids what disagrees with the
Book and Sunna."
The fourth basis is accepting mursal and weak hadiths if there was nothing
better on the subject. He preferred that to analogy. What is meant by weak is
not the false or munkar, or that about which there is something suspect in the

transmission, since that is not allowed. Ibn al-Qayyim mentioned that that
principle was accepted by many of the fuqaha'. It is also ascribed to Abu
Hanifa, Malik, and ash-Shafi'i.
The fifth basis which Ibn al-Qayyim mentioned is analogy. If Imam Ahmad
did not have text on a question, or a statement of one or more of the
Companions or a mursal or weak Tradition, he resorted to analogy, using it as
a last resort as Ibn al-Qayyim observed. Al-Khallal transmitted that Ahmad
said, "I asked ashShafi'i about analogy and he said, 'Resort to it if need be."
These principles are mentioned by Ibn al-Qayyim in his book, I'lam al-
Muwaqqi'in. But anyone who studies the books of principles which the
Hanbalis have written, or indeed studies what was written by Ibn al-Qayyim
in any of his books, must add to these five and note that they are not in fact
totally distinct from one another.
Regarding the first principle, the fact is that the texts in reality contain two
bases: the Book and the Sunna, since any text is either from the Book or the S
un n a; but Ahmad did as ash-Shafi'i had done before him and put them
together because the role of the Sunna is to clarify and expound the Book and
so they are considered as having the same rank.
The second principle, the fatwas of the Companions, overlaps with third,
which is the fatwa of a Companion when he disagreed with another
Companion. So the two can in fact be considered as one: the fatwas of the
Companions whether they agree or disagree.
The fourth is his acceptance of mursal or weak hadiths, which is in reality
part of the science of knowing which texts are fit to be used for derivation,
even though Ibn al-Qayyim mentioned it as a distinct and separate principle.
It is an implicit judgement of its rank in deduction that he does not give a
mursal or weak hadith precedence over the fatwa of one of the Companions.
Mutawatir and sound texts come over a f a t w a of a Companion. The fact is
that Ahmad considers the word "S u n n a" to include m u t a w a t i r hadiths,
sahih hadiths, fatwas of the Companions, and mursal and weak hadiths.
So we consider the principles which Ibn al-Qayyim mentioned to be in reality
four: the Book, Sunna, fatwas of the Companions and analogy. When we add

what the legists have also mentioned as among the principles of Ahmad being
- presumption of continuity (istishab), public interest (masalih) - and
judgement of the means (dhara'i'), the number increases.
The books of the Hanbalis also contain discussion about consensus which
resembles what ash-Shafi'i said about considering consensus to be evidence
when it occurred. However, if it was suggested to Ahmad that consensus was
evidence with respect to a specific question, he made it clear that there was
no consensus in it. This view was expressed by ash-Shafi'i, Abu Yusuf and
Ahmad himself, so we must mention it and discuss Ahmad's position and
whether he denied consensus or permitted it in some matters.
We will now explain the foundations of Ahmad's fiqh. They are: the Book
and the S u n n a, consensus, f a t w a s of the Companions, analogy (q i y a
s), is tis h a b, masalih mursala, and dhara'i'.
The Book
The Noble Qur'an is the foundation and basis of the S h a r i ' a and is its
primary source. It contains the basic premises and rulings which do not
change with time and place and which are universally applicable to all people
and not specific to one group rather than another. In it are universal rules,
exposition of the sound Islamic creed and definitive proof of the firm deen.
Because it is the primary source of the Muslim Shari'a, scholars have always
been concerned with studying it and finding the best means of deriving
rulings from its expressions, indications and texts, just as they have striven to
interpret what is unclear, define the general, clarify what needs to be
clarified, explain its general and specific terms, and discover the abrogating
and abrogated ayats and the reason for the abrogation and how it occurs.
Scholars differ about these details although they all agree that the Qur'an is
the first source of all the laws of Islam. They do not differ on that point, but
they disagree about the relationship of the S u n n a to it and whether it is an
additional factor or simply an extension of it.
We do not intend to delve deeply into this subject, since Ahmad did not dwell
on it, but there is one matter which we must discuss and clarify, which is

Ahmad's position regarding the rank of the S u n n a in relation to the
Qur'an: is it second or equal to it in respect of the derivation of rulings? No
scholars consider the S u n n a to have exactly the same status as the Qur'an.
Scholars agree that it is less because the Qur'an is the primary proof of Islam
and its first source. But the fact that the S u n n a is primary evidence is
established by the words of the Almighty: " W h e n Allah and His
Messenger have decided a thing it is not for any believing man or believing
woman to have a choice about it" (33:36); "Whatever the Messenger gives
you you must accept and whatever He forbids you you must forg o " (59:7);
and "Who e v e r obeys the Messenger has obeyed Allah." (4:80). There are
other ayats which indicate the evidentiary nature of the Sunna, but there is no
doubt that it has a lesser position than the Qur'an.
The fact that the Sunna ranks below the Qur'an with respect to deduction is
not questioned. The question is whether rulings from the Qur'an can only be
extrapolated by way of the Sunna, which serves to explain it. The Hanafis
and Malikis extrapolated rulings from the Book and compared single h a d i t
h s against the Book. They accepted those which agreed with the Book and
rejected those which did not. The Hanafis did the same regularly and the
Malikis on occasion, as when they rejected the hadith about having to wash
seven times any vessel licked by a dog because it contradicts the Qur'an.
The Shafi'is apply the Sunna to clarify the Qur'an when the literal sense of
the Qur'an contradicts the Sunna. The Sunna sometimes makes literal texts of
the Qur'an specific and the Qur'an is understood in that way. It acts as
clarification and explanation of the Book, so that one of the fuqaha' stated
that the Sunna governs the Qur'an since it is the means of explaining it,
detailing it, clarifying what is abrogated of the Qur'an and defining what is
undefined. This is why ash-Shafi'i put them on the same level: because the
second clarifies the first. Ahmad held the same view and Ibn al-Qayyim
rightly states that Ahmad put Qur'anic texts above Sunna texts in clarification
of rulings.
Ahmad was adamant in considering the Sunna of the Prophet a sound
explanation of the Noble Qur'an. He did not believe that there could be any
conflict between the literal text of the Qur'an and the Sunna, because the
Sunna clarifies it and explains the fiqh and rulings the Qur'an contains. He
wrote a letter in which he refuted anyone who took the literal meaning of the

Qur'an and abandoned the Sunna. He begins by saying:
Allah Almighty sent Muhammad "with the Guidance and the Deen of Truth
to give it victory over all other d e e n s, even if the idolaters dislike it." He
revealed His Book to him as guidance and a light for those who follow it, and
taught the Messenger of Allah what He willed of its inward and outward,
specific and general, abrogating and abrogated and what the Book intended.
The Messenger of Allah interpreted the Book of Allah and pointed out its
meanings. His Companions, with whom Allah was pleased and whom He
selected for His Prophet, bore witness to that and transmitted it from him.
They were the most knowledgeable of people about the Messenger of Allah,
may Allah bless him and grant him peace, and about what Allah meant by
His Book, being witnesses to the event. After the Messenger of Allah, may
Allah bless him and grant him peace, died they interpreted what was meant
by the Book.
This passage shows three things: Firstly, the apparent text of the Qur'an does
not have precedence over the Sunna: that is clearly stated. Secondly, the
Messenger of Allah, may Allah bless him and grant him peace, explained the
Qur'an and after him no one can interpret it or explain it because that is the
role of the Sunna alone and it may not be expounded by any other means.
Thirdly, the Companions explained the Qur'an since they transmitted from
the Messenger of Allah; they witnessed the Revelation and heard its
interpretation and knew the Sunna of Muhammad, may Allah bless him and
grant him peace, and so their explanation is part of the Sunna. Thus Ahmad
clearly states that there is no tafsir except through tradition. Ibn Taymiyya
stated in his treatise which he wrote on t a fs i r that if there was no tafsir
on an a y a t from the Companions he took that of the Tabi'un in some cases.
He disliked explaining the Qur'an by opinion in the way az-Zamakhshari did.
This takes us to the position of Ahmad ibn Hanbal regarding the
understanding of the Qur'an in the texts transmitted from the Salaf where
there was no teaching from the Prophet. He stated that he did not think that
the literal text of the Qur'an could refute the Sunna. The Sunna is what made
its evidence specific and so it was not possible for the Sunna to relate
anything contradictory to the general meaning of the Qur'an.
In relation to the Qur'an, Ibn al-Qayyim divided the Sunna into three

categories and stated: "The S u n n a has three aspects in respect of the
Qur'an. First, it agrees with it from every aspect and so the Qur'an and S u n
n a provide multiple transmissions of the same ruling and hence it is multiple
evidence. Second, it clarifies and explains what the Qur'an means. Third, it
provides a ruling on something about which the Qur'an is silent or prohibits
something about which the Qur'an is silent. The Qur'an lays down the
principle that the Prophet should be obeyed and that one is not allowed to
disobey him. That is not putting the S u n n a over the Book of Allah, but
rather affirming the obedience to His Messenger which Allah has
commanded in it."
The position that the school of Ahmad holds is that the apparent text of the
Qur'an can only be explained by the Sunna; and that is also the course
followed by ash-Shafi'i, as he affirms in his Risala. Ahmad may have
adopted this from ash-Shafi'i when listening to him in Makka. In defence of
the position of Imam Ahmad, Ibn al-Qayyim states:
If it were permissible to reject the Sunna of the Messenger of Allah in favour
of someone else's understanding of the probable texts of the Book, then many
sunnas would be rejected and completely invalidated. So no one whose
position is countered by a sound sunna is permitted to hold to the general and
undefined texts and refuse to accept the Sunna in the way that the Rafidite
Shi'ites reject the hadith. 'We, the company of Prophets, leave no
inheritance' in favour of the general sense of the a y a t 'Allah instructs you
re g a rding your children: a male receives the same as the share of two
females.' (4:11)
The Sunna
This is the second principle of Imam Ahmad or, to be more precise, the
second half of the first principle. You know that when Ibn al-Qayyim
reported the principles of Ahmad, he considered the sound texts to be a single
principle and made the Book and sound Sunna a single joint principle. The
wisdom behind that has been explained above: the S u n n a expounds and
supplements the Q u r'an, and there cannot be any contradiction between
them because the one explains the other. This does not contradict the fact that
the Qur'an is the primary source because it is clear that it is the foundation on

which all laws are based.
But we are studying the Imam of the Sunna, to which he held for his entire
life, so we must mention above all the position of the S u n n a in Hanbali fi
q h alongside the Book in some small detail. That will further clarify the
views of the Imam. He often stated that knowledge of the Book is only
gained by way of the Sunna; that knowledge of the deen comes by way of the
Sunna; and that the easy way to seek the fiqh of Islam and its laws is by
means of the S u n n a. Those who confine themselves to the Book without
seeking the assistance of the Sunna in explaining its laws will be misguided
from the Straight Path. There are several reasons for this.
. The text of the Qur'an states that it is obligatory to obey the Messenger, and
obedience can only mean following his Sunna and taking judgement from the
Messenger in what he did during his life and what was related from him after
his death. That is established in the deen because Allah Almighty says, "No,
by your Lord, they are not believers until they make you the judge in the
disputes that break out between them." ( 4 : 6 5 ) This was revealed when the
Messenger of Allah judged in favour of az-Zubayr ibn al-'Awwam in a
dispute with an Ansari about who would get water first from a canal.
AzZubayr's land was closer to the water. When the Ansari was vexed by this
judgement, this was revealed. There are many ayats which indicate this
obligation, such as "Obey Allah and obey the Messenger" (5:93) and
"Anything the Messenger gives you you should take and anything He forbids
you you should leave alone." (59:7)
· The second reason is the evidence found in the hadiths which affirm the
obligation to follow the Sunna and not confine oneself to the Book. It is
related that the Prophet said, "One of you is about to say, 'This is the Book of
Allah: what is lawful in it we consider lawful and what is unlawful in it we
consider unlawful.' Whoever is told a hadith from me and denies it has cried
lies to three: Allah, His Messenger, and the one who reported it." He also said
"The time is approaching when one of you will be reclining on his coach and
will be told a hadith from me and will say, 'Between us and you is the Book
of Allah. We consider what is lawful in it to be lawful and what is unlawful
to be unlawful." These texts indicate that it is mandatory to seek the laws of
the de e n in the S un n a of the Messenger of Allah and that confining
oneself to the Book alone is an innovation.

. The third reason is that many Islamic rulings on which most of the Muslims
agree are taken from the Sunna, or are greatly reliant on the S u n n a . The
prohibition of marriage with those related to one by suckling and of marrying
a woman and her aunt at the same time are part of the Sunna. The details of
the prayer, zakat and hajj are part of the Sunna. The amounts of blood money
and other things are detailed in the S u n n a. Anyone who ignores fiqh from
the Sunna loses nine-tenths of Islamic fiqh or more.
Nevertheless, that it must be made clear that the Sunna is not all the same in
respect of the authority of its isnads and it is necessary for us to clarify their
relative status, the amount of deduction which may be based on them, the
ruling when there is a conflict, and what was Ahmad's position on the
subject. The fuqaha' divided hadiths into four categories with regard to their i
snad s: mutawatir hadiths, well-known or famous hadiths, hadiths with a
single transmitter, and h a d i t h s whose i s n a d is not complete but broken
at some stage.
Mutawatir hadiths are related from such a large number of people and in so
many disparate places that it is impossible to imagine that they could be
untrue. There are many such h a d i t h s. A mutawatir hadith entails
incontrovertible knowledge. Well-known h a d i t h s are those which the
second or third generation accepted and which are famous among them, even
if they are single hadiths related by only one narrator. Single Traditions do
not constitute definite evidence. Ahmad was imbued with love of the Prophet
and his Companions and so he was content to accept anything which was
ascribed to the Prophet. The fourth category of hadiths is those which are
mursal. Mursal can mean two things: one is a h a d i t h whose i s n a d stops
at a Follower without mentioning the Companion from whom he received it,
and the second is any hadith in which the isnad does not connect directly and
continuously to the Prophet. Their acceptance by the fuqaha' varied.
Malik and Abu Hanifa accepted mursal hadiths to the extent which they
thought correct. It is clear from studying the Muwatta' and the books of
Traditions associated with Abu Hanifa that they considered the mursal to
have the rank of the single hadith. When there was a conflict between them,
they applied the same criteria as when two reports contradicted. Their
strength in relation to a single ascription was in their opinion the same. Ash-
Shafi'i, however, did not give the mursal the same status in his Musnad. He

did accept mursal hadiths, but imposed certain conditions for doing so.
Ahmad considered mursal hadiths to be evidence, but put them below the
fatwas of the Companions, placing them on a par with weak h a d i th s , and
thus he both differed from his shaykh, ashShafi'i, and agreed with him. He
differed by putting m u r s a l hadiths after the fatwas of the Companions
because he considered the latter to be part of the Sunna, as we will explain.
Where there was nothing else he accepted mursal hadiths as he accepted
weak ha dith s because he preferred using them for making rulings to
analogy and opinion, which he applied only as a last resort.
But it is clear that Ahmad considered mursal hadiths to be weak reports
whose evidence can sometimes be refuted and not accepted, which is why he
put the fatwas of the Companions first. He never, however, put a fatwa of a
Companion ahead of a sound h a d i t h, so the fact that he did place such f a t
was before murs al ha dith s is evidence that he considered them to be
weak ha dith s, not sound h a d i t h s. He used them for making rulings in
cases of necessity because he did not want to give any fatwa about the deen
on his own accord when there was any tradition he was familiar with. So he
accepted them as long as he did not have an alternative in the form of a f a t
w a from the Companions. Hence we can say that Ahmad's acceptance of
mursal hadiths was certainly no greater than that of his shaykh ash-Shafi'i; it
was, if anything, less since he rejected them more on the basis of their being
in the category of weak hadiths.
Ahmad did not report from liars but only from reliable people of known
integrity. He related from those known for being godfearing and truthful.
Regarding his position on the Sunna, he said in a letter to Musaddad ibn
Mufassara al-Basri: "We consider the Sunna to be transmission from the
Messenger of Allah, may Allah bless him and grant him peace. The Sunna
explains the Qur'an and is the arbiter of the Qur'an. Analogy does not apply
in respect of the Sunna and it cannot be made subject to people's opinions
and whims. It is a matter of following what has come down and abandoning
whim." He did not make it a precondition for the acceptance of the Sunna
that it should agree with any set of precepts or be measured against them. He
did not reject any of it except when there was a sunna which conflicted with
one which was stronger and more reliable than it and had more reliable
transmitters.

We see that Ahmad only forbade transmitting from those who were known to
be deliberate liars. He related from the godfearing and accepted their hadiths
even if they were not completely accurate. But if he found someone more
reliable, he took their version. As we have seen, Ahmad used to accept weak
hadiths - but it is clear that he accepted only those relaters who were not
known for lying. He advised his son 'Abdullah, "Almost no one resorts to his
own opinion who does not have some defect in his heart. I prefer weak
hadiths to opinion." 'Abdullah said, "I asked him about situations where the
only alternatives are a person with knowledge of hadith who does not know
the sound from the weak and someone who is known to use opinion: which
one should be asked for a ruling? He said one should ask the one with hadith,
not the one with opinion."
Ahmad put weak h a d i t h s before analogy. He said to his son 'Abdullah,
"My son, I do not oppose a weak hadith unless there is something definite to
refute it. Ahmad preferred a middle course between opinion, which he
disliked in respect of the de e n, and hadiths lacking isnad connected to the
Messenger. He preferred to act in accordance with a h a d i t h out of cautious
concern for his deen, assuming its authenticity if there was no evidence to the
cont r a ry. Ahmad also avoided having to use his own opinion by accepting
the fatwas of some earlier fugaha' who were known for following tradition
rather than innovation, such as Malik, ashShafi'i, ath-Thawri and other jurists
who had great knowledge of Tradition. He followed this course when
exercising ijtihad.
The Fatwas of the Companions
Each of the Imams transmitted from a particular group of the Salaf in their
legal studies, preferring to act like them and follow the path they followed.
Abu Hanifa studied Iraqi fi qh largely ascribed to Ibn Mas'ud and some
Makkan fiqh, and he extrapolated in a particular manner from the fiqh of
Ibrahim an-Nakha'i, so their methods in deduction were close; and after that
he studied f i q h with his shaykh Hammad. Malik transmitted the fi q h of
the seven fuqaha' among the Tabi'un, Ibn Shihab, Rabi'a ar-Ra'y and others,
thus learning it from those who had learned it from the Companions. He
preferred deduction using their techniques since his legal training was on the
basis of their fiqh. Ash-Shafi'i transmitted from Ibn 'Uyayna in h a d i t h and

then the f i q h of Malik, compared that with Iraqi fi q h when he met
Muhammad ashShaybani, and then transmitted to posterity a complete
system which was a combination of all of them. That system was the science
of the fundamental principles of fiqh with precise criteria for deduction.
Ahmad ibn Hanbal had a school which reached back to the time of the
Messenger of Allah and his Companions, and produced in figh a legal
collection which transmits the decisions and rulings of the Prophet and those
of his Companions as well, whether they referred to the Book of Allah, the
Sunna of His Messenger or their own ijtihad in making them. That is the
collection which he transmitted. Ahmad went to all regions of Islam to collect
the material for the legal school which he developed and which supported his
various legal deductions and extrapolations. He was able to learn from ash-
Shafi'i the rules and methods of deduction so as to extrapolate from that
material and to assign to each text its appropriate strength.
The legal collection transmitted from the Companions is not an insignificant
one from which only a little fiqh was derived. It is large and varied and
dispersed and forms an immense collection of partial rulings in respect of
different events transmitted by disparate individuals. The f a t w a s of the
Companions reflect their environment and they varied greatly in the number
of fatwas they issued. Some gave many f a t w a s and some few. Those who
gave many were 'Umar, 'Ali, 'Abdullah ibn Mas'ud, 'Abdullah ibn 'Abbas,
Zayd ibn Thabit and 'A'isha. Those six are responsible for the greatest
number. After them come ten others: Abu Bakr, 'Uthman, Mu'adh, Sa'd ibn
Abi Waqqas, Talha, az-Zubayr, 'Abdullah ibn 'Amr ibn al-'As, Salman al-
Farisi, Jabir, and Umm Salama.
Ahmad used that legal collection as a guiding light and a torch of
Prophethood from the knowledge of the Messenger of Allah and the
knowledge of the Companions. He clung tenaciously to it and consulted it in
all that he was asked about. That is why he considered the statements and f a t
w a s of the Companions to be evidence which came second only to the sound
hadiths of the Prophet and before that of mursal hadiths and weak reports.
The scholars who transmit his fiqh are in complete agreement on that point.
All of them concur that he accepted the fatwas of the Companions and did
not exercise his own ijtihad as long as there was a fatwa transmitted from one
of the Companions on the matter in question.

He placed the f a t w a s of the Companions in two categories: those about
which there was no known disagreement, and those about which they
disagreed and there were two or three positions. With the first category he
took the position of the Companions but did not call that consensus, thus
agreeing with ash-Shafi'i. For instance, he took the position of Anas about
the testimony of a slave because it is reported that he said, "I do not know of
anyone who rejects the testimony of slaves." As for the second category,
when there was disagreement Ahmad took note of the diff e r e n t positions
and considered them all to be his own, so that he would have two or three
statements according to the various positions. He did so to avoid preferring
his own opinion to that of any of the Companions as they all had light and
guidance from the Messenger of Allah.
Ibn al-Qayyim reports another view: "One of Ahmad's principles was that
when the Companions differed, he chose from them the position which was
closest to the Book and Sunna. He did not depart from their statements."
There is another report that he referred first to the positions of the Rightly-
guided Khalifs. Ibn alQayyim mentioned that: "When a Companion made a
statement, it either was countered by another Companion or was not. If
someone equal to him countered it, neither is evidence against the other. If it
is countered by someone with more knowledge, as when the Rightly-guided
Khalifs differed from other Companions on a ruling, there are two statements
by scholars about that - and both are transmitted from Imam Ahmad." He
goes on to point out that the sound position is to prefer the Khalifs, especially
Abu Bakr and 'Umar.
It is clear that when Ahmad knew the opinions of the Rightlyguided Khalifs
he chose them first. If he did not know them he chose the opinions closest to
the Book of Allah and the Sunna of the Messenger of Allah. If none was
close in any way, he gave two positions on the matter. Of Imam Ahmad's
successors, some related the f a t w a he chose which was the position of the
khalifs and another transmitter only related the choice of what was closest to
the sources. A third related that he left all the positions as his own, and
transmitted all of them.
The rank of the fatwas of the Companions in the order of evidence is that it
comes after the firm texts, namely the Qur'an and sound h a d i t h s. Some
scholars claim that when Ahmad found a fatwa of a Companion he did not

turn to the texts at all because the fatwa of the Companion removed the
necessity for deduction since the decision had already been made. Since
Ahmad took the fatwas of the Companions as a source of fiqh and applied
them, how did he consider them? Did he take them as being part of the Sunna
or simply as ijtihad on the part of the Companions, and consider that it was
better to take their ijtihad?
The four fu q a h a ' who founded the well-known schools all accepted the
fatwas of the Companions, but they differed in how they considered them.
Ash-Shafi'i, as he stated in his Risala, took their fatwas as being ijtihad but
accepted them because he considered their ijtihad more fitting than his own.
Malik considered their f a t w a s to be part of the S u n n a and compared
them against other reports when there was a contradiction, which differed
from ashShafi'i. In the case of Ahmad, he did absolutely put the sound
hadiths before the fatwas of the Companion and did not compare them as
Malik did. We also find that he put them before mursal and weak hadiths.
I do not think that we can say that Ahmad considered all the fatwas of the
Companions as transmission, but he certainly accepted their statements as the
second source of understanding of the deen and the Muslim Shari'a after the
statements of the Prophet, may Allah bless him and grant him peace, because
they were closest to the Prophet. If there had to be opinion, then the best
opinion was that directly taken from the guidance of the Messenger of Allah.
Ibn al-Qayyim clearly states in I'lam al-Muwaqqi'in t h a t this is an aspect of
the Sunna:
When a Companion makes a statement or gives a judgement or a fatwa, it
may stem from discernment which he has and we do not, or from
discernment in which we share. As for what is particular to him, it is likely
that he heard it directly from the mouth of the Prophet, may Allah bless him
and grant him peace, or from another Companion narrating from the
Messenger of Allah. The knowledge which they possessed and to which we
do not have access is more than will ever be known, for none of them related
all that they heard. How much Abu Bakr as-Siddiq, 'Umar al-Faruq and the
other great Companions, may Allah be pleased with them, must have heard,
compared to what they related!
There are not even a hundred hadiths related from the Siddiq of the

Community [Abu Bakr], despite the fact that he was not absent from the
Prophet, may Allah bless him and grant him peace, in any of his battles and
he accompanied him from the time of his prophetic mission, or indeed even
before that, until his death. Abu Bakr was the most knowledgeable of the
Community about him, may Allah bless him and grant him peace, and about
his words, actions, guidance and conduct. The same applies to the majority of
the Companions: the amount that they transmitted from the Prophet is very
little indeed in comparison with what they actually heard and witnessed from
him. If they had related all that they heard and witnessed, it would have been
many times more than what Abu Hurayra transmitted. He was only a
Companion for about four years and yet related a great deal from him.
The statement "If the Companions had known anything about this matter ... "
can only be made by someone who does not understand the behaviour and
states of people. They were in awe of transmitting from the Messenger of
Allah, may Allah bless him and grant him peace, and attached great
importance to it. They did not often do so, fearing to add to, or subtract from,
his words.
Any fatwa which one of the Companions gave will be based on one of six
foundations:
. He heard it himself directly from the Prophet, may Allah bless him and
grant him peace.
. He heard it from someone else who heard it.
. He understood it from an ayat of the Book of Allah in a manner which is
unknown to us.
· It is something which all the Companions were agreed upon but only the
statement of the one who gave the fatwa has been transmitted to us.
. He understood it through his complete knowledge of the language and what
the phrase indicates, in a manner to which he had access and we do not, or by
direct knowledge of the actual circumstances which were being addressed; or
by the sum of things which he understood over the passage of time through
seeing the Prophet, may Allah bless him and grant him peace, and witnessing
his actions, states and behaviour and listening to his words, knowing his aims
and witnessing the arrival of Revelation and witnessing its interpretation
through action. Because of all this, the Companion was able to understand

things which we cannot.
If the fatwa is based on any of the above five criteria, it is authoritative for us
and must be followed. There is one more possibility:
· It was based on an individual understanding of something that the
Messenger, may Allah bless him and grant him peace, did not say and the
Compan-ion was wrong in his understanding.
Fatwas of the Tabi'un
We know the course followed by Ahmad regarding the fatwas of the
Companions - how he accepted them when nothing contrary to them was
known, and how he chose between them when they differed. Now we want to
ascertain his view about the fatwas of the Tabi'un when he found no earlier
text or report on a matter. Did he accept them in the same way that he
accepted the fatwas of the Companions, merely giving them a lesser rank, or
did he exercise ijtihad?
The majority of fuqaha' who stated that they did not take the fatwas of the
Tabi'un as a source in general used nevertheless to accept the fatwas of some
of the great Tabi'un. Abu Hanifa used sometimes to take the position of
Ibrahim an-Nakha'i even though did not consider the statements of the Ta b i
' u n to be one of the principles of deduction. He clearly stated that they were
merely men and that he was as able to come to a judgement as they were.
Malik used sometimes to take the position of Sa'id ibn alMusayyab, Yazid
ibn Aslam, and al-Qasim ibn Muhammad ibn Abi Bakr. Ash-Shafi'i used to
sometimes take the position of 'Ata'. This was on the understanding that
some of them were renowned for knowledge and were thus accepted on that
basis.
This was the view of the three Imams before Ahmad. As for Ahmad, reports
disagree about his opinion on the evidentiary status of their fatwas. Some say
that he accepted them and some that he did not and that, in his view, the fiqh
of the Tabi'un was like commentary. If there was no text on the subject and
no statement of a Companion or mursal hadith, then he accepted a fatwa from
one of the Tabi'un if it was not disputed.

People say that the Hanbalis disagree about whether the fatwas of the Ta bi '
u n should be given precedence over analogy. One group put it before
analogy because analogy is only resorted to in emergency. Another group put
analogy first. In any case we know that Ahmad disliked exercising ijtihad by
his own opinion and that when there was no Tradition he often took the
fatwas of scholars of Tradition like Malik, at-Thawri, Sufyan ibn 'Uyayna,
al-Awza'i and others. Therefore it is more likely he would have accepted the
fatwas of well-known and reliable Tabi'un.
Consensus (Ijma')
Ibn al-Qayyim did not consider consensus to be one of the principles of
Hanbali fi q h. He did not mention it and it has been reported that he said,
"Whoever claims the existence of consensus is a liar." He often denied its
existence, or knowledge of its existence outside of the Companions. We
basically accept his opinion regarding consensus in respect of its evidentiary
status and its rank as evidence. We will not delve into the words of the legists
on consensus. They differ a great deal regarding its universal and particular
questions and its place in the knowledge of the basic principles of fiqh.
To define consensus we should explain what was meant by those who used it
as a legal principle. But the truth is that we cannot find anyone who taught it
as a principle except ash-Shafi'i, and we know what he understood by
consensus. Ash-Shafi'i mentions the reality of consensus in his Book on the
Invalidation of Istihsan:
"Neither I nor any of the people of knowledge would say 'this is agreed on'
except concerning facts about which you would never find any scholar who
would fail to repeat them to you and relate them from a predecessor, such as
the D h u hr prayer being four rak'ats, wine being unlawful, and similar
matters."
There is no doubt that Ahmad adjudged such consensus to be very tenuous on
most questions. Ahmad ascertained all the claims and counter-claims about
consensus and studied the subject with his shaykh, ash-Shafi'i in his first stay
in Makka. That is why we prefer the view that he found the existence of
consensus unlikely outside well-known matters of the d e e n . He was keen

not to impute to scholars things that they had not said or to make unsound
claims, and so out of scrupulousness when he mentioned a position about
which no dispute was known, he did not say that there was consensus about
it, but used to say, "I do not know of anyone who opposes it."
Ibn al-Qayyim mentioned that Ahmad used to dislike a claim of consensus
without evidence, his position in that regard was like that of ash-Shafi'i. He
said that Ahmad refuted those who claimed consensus and would not allow it
to be put before a sound hadith. Ash-Shafi'i said the same in his New
Treatise: when he said that something about which there is no known dispute
should not be called consensus. 'Abdullah ibn Ahmad ibn Hanbal said, "I
heard my father say, 'Anything that anyone claims consensus on is a liar.
Anyone who claims consensus is a liar. People may disagree without him
knowing about it. He should say, "We do not know of any disagreement
between people on this."""
Imam Ahmad and all Imams of hadith have too much respect for the texts of
the Messenger of Allah to prefer to them the illusion of consensus when there
is no known disagreement. If that were allowed, then texts would become
unnecessary and anyone who did not know of any disagreements about a
ruling could use his ignorance of any disagreement to overrule sound texts.
This is what Imam Ahmad and ash-Shafi'i sought to avoid by rejecting
claims of consensus.
Two things should be noted here. The first is that Ahmad did not completely
deny the existence of consensus; he denied the claims made for it by some
scholars of his generation, in the same way that Abu Yusuf denied the claim
made by al-Awza'i that consensus denotes the opinion of the general mass of
the people of knowledge. Ash-Shafi'i also denied it with those he debated
with and did not use the evidence of consensus to refute a sound hadith. The
second point is that Ahmad affirmed that there are questions about which no
disagreement is known of and that such questions are accepted when there is
no hadith on the subject. But he does not claim in such cases that that is
perfect consensus, but says that he does not know of any disagreement. That
is scrupulousness in the deen.
Thus we can say that the opinion of Ahmad regarding consensus was that he
divided it into two categories. The first, which is the higher, is the consensus

of the Companions, or rather the consensus of everyone on the principal
obligations of the de e n, and the consensus of the Companions on the
questions which they examined and on which they exchanged opinions until
they reached a specific view. Such a consensus is evidence and relies on a
text of the Book or sound Sunna. It is strong evidence and there is no sound h
a dit h which opposes it because the Companions transmitted the words,
actions and decisions of the Prophet. It is not possible that their consensus be
criticised or there be a hadith contrary to it.
The second category comprises well-known opinions no one is known to
oppose. It is this second type which is generally called consensus. In the view
of Ahmad this is less strong than a sound hadith but ranks above analogy,
because if there is even one faqih who opposes it there is no consensus - and
how much more is that the case if there is a contrary text.
Analogy
In Islamic fi q h, analogy means connecting a matter without a text giving a
ruling for it to another matter with a text which does give a ruling, on the
basis that they both have the same cause. Ibn al-Qayyim said, "The essence
of all deduction is based on considering two similar things as having a
correspondence and separating those which are dissimilar. If it were not
allowed to compare similar matters in this way, all deduction would be
vitiated and the doors to it locked." This is the true nature of analogy. Since
events are endless, there must necessarily be some use of analogy in Islamic
figh, be that little or much. The Qur'an indicates this, as do the h a d i t h s of
the Prophet. Allah mentions rulings and mentions their causes or states the
correspondence, as He says, "They will ask you about menstruation. Say, 'It
is an impurity, so keep apart from women during menstruation and do not
approach them until they have purified themselves"" (2:222) and "They will
ask you about menstruation. Say, 'It is an impurity, so keep apart from
women during menstruation and do not approach them until they have
purified themselves." (5:9)
There was, however, one group of scholars who totally rejected analogy and
another group who went to excess in it. The first group denied the causes,
meanings and qualities of similar situations, while the second expanded the

scope of analogy beyond all reason and connected together things which were
in reality dissimilar.
Ahmad, the hadith scholar and faqih, held a position between these two. He
did not completely reject analogy as did the Dhahirites, who judged only by
texts and were not concerned with giving people fatwas, so that people did
not go to them as they did to Abu Hanifa, Malik, ash-Shafi'i and Ahmad. He
was not excessive in analogy as were the Iraqis who followed Abu Hanifa
and his students: they contrived unlikely similarities when there was a
conflict between the texts and the f a t w a s of the Companions. Ahmad
accepted analogy and affirmed it, as Ibn Qudama alHanbali states in ar-
Rawda: Ahmad said about it, "No one can dispense with analogy." That is a
true statement in respect of the m u ft i who must give f a t w a and must use
analogy at some point when there is no text or precedent about a particular
matter.
The Hanbalis all affirm that Ibn Hanbal used analogy, and support their
words with what he said. In this he was not an innovator but a follower. The
Companions deduced according to their understanding, using analogy to
compare new events with prior events. Al-Muzani said, "F u q aha ' from
the time of the Messenger of Allah until today have applied criteria in fiqh to
all kinds of rulings in their deen and they agree that the like of the truth is
true and the like of the false is false. It is not allowed for anyone to reject
analogy out of hand."
Ahmad made use of analogy and thus it has a place in Hanbali fiqh. It may be
true that the Hanbalis accord it more weight than Ahmad himself did, owing
to the needs of the time. It is new events which necessitate the use of analogy
to arrive at rulings through deduction.
Istishab (Presumption of Continuity)
This is a legal principle on which all the four Imams and those who follow
them agree. They vary, however, in the amount they use it. It is used least by
the Hanafis and most by the Hanbalis, then the Shafi'ites, and the Malikis are
in the middle. It is clear that the amount of i s t i s h a b used by the Imams
depends on the amount of scope they allow to other evidence. Those who

allow wide scope to analogy and istihsan and consider custom to be part of
the evidence of the S h a r i ' a use istishab less, considering the number of
situations where it is observed as minimal. These are the Hanafis, next to
whom come the Malikis because they also expanded the arena of deduction
by applying the principle of public interest, masalih, which was a means of
reducing the rulings in which they relied on istishab. The Hanbalis and
Shafi'is, who did not consider analogy a valid course to pursue except in
necessity, expanded the means of deduction by means of i s t i s h a b. The
Shi'ites used it the most.
We will now explain exactly what istishab is. Ash-Shawkani explained it as
follows: "It means that the basic position established in the past remains in
the present and the future. It is derived from 'musahaba', which means that
the matter remains as it is as long as nothing comes about to change it."
According to Ibn al-Qayyim, it means that what is proven continues to be
proven and what is denied continues to be denied unless there is definite
evidence to the contrary. For instance, ownership by a purchaser is deemed to
continue unless there is definite evidence of a change. There are several
forms of i s t i s h a b which Ahmad ibn Hanbal and the Hanbalis affirmed.
· Continuity of what a contract or the Law affirms. A loan, for instance, is
presumed to continue unless there is evidence to the contrary; and a marriage
is presumed to continue to exist unless there is evidence of divorce.
· Presumption that a state of affairs does not exist unless there is definite
evidence that it does. This is like presumption of innocence and original
freedom from liability.
· Continuity of original attributes, so that pure water is presumed to remain
pure unless the contrary is definitely established and a missing person is
presumed to be alive unless there is clear evidence of his death.
· Presumption of the continuity of consensus about general rules and
principles of the law.
It is clear that the Hanbalis accepted istishab as one of the principles on
which a f a t w a may be based and used it more widely than did the Hanafis
and Malikis, and about the same amount as the Shafi'is. What can be
observed is that whenever fuqaha' want to expand the scope of deduction by