Al-Salam Institute and the Question of the Part-time ‘Alim Course

Al-Salam Institute, co-founded by one of my teachers, Shaykh Akram Nadwi, recently asked me to teach a module of ‘ulum al-qur’an on the foundation year of their new 5 year part-time ‘alim course and I was happy to accept. The module has not started yet, as it will be in Term 3, taking place in 2015. I was also asked to give a short talk on Imam Abu Hanifa as part of the Al-Salam Open Day and ‘Agree to Disagree’ Event. Here I am in the middle of the talk, which took place at Queen Mary, University of London.

Recently I have noticed something of a backlash on social media (ie Twitter, where I tweet as @ibrahimharvey) and through email of people questioning, or even criticising the idea of ‘part-time ‘alimiyya’. The general line of critique being that Islamic knowledge is not a part-time matter, or that it is impossible to adequately cover the required texts in comparison to full-time courses (the reference here is basically to Hanafi Dars Nizami courses). I gave quite a lengthy email response to someone on this subject this week and I thought it would be useful to post an edited version of some of that message here (of course keeping the individual anonymous) for hopefully general benefit.

My personal view is that looking at a certain type of ‘alim course’ and then setting a standard of hours of instruction that other courses should follow is not that helpful in terms of the reality of Islamic knowledge and its acquisition. No-one becomes an alim in truth, by completing even the 6 year (or more) full-time courses. To become an ‘alim is a lifetime commitment and journey. The programmes that exist impart certain training as part of that journey. The question should rather be: how does the training of course A differ from that of course B? What is covered and what is left out, and why?

In these terms, I think it is valuable to compare Al-Salam’s offering (2 yrs advanced curriculum here) with that of your standard 6 year full-time dar al-‘ulum‎. So, what are the features of most of the Dars Nizami ‘alim courses? Arabic and foundational ‘ulum. A strong emphasis on fiqh and usul through different books of the Hanafi madhhab, a mixture of other disciplines, though usually fairly basic tafsir. Either no extensive focus on hadith (if lacking dawra year), or a year (or two) of pure hadith, however with the emphasis on a) covering all books with sama’ (listening to the hadiths), even if not in depth; and b) defending Hanafi positions.

Ok, that is quite a critical take, so let me make myself clear. I do not think these courses are bad, far from it: my first fiqh teacher who I deeply respect (and value as a friend) is a graduate from Dar al-‘Ulum Bury. They give a solid grounding in the shari’ah disciplines and particularly train students to be strong in fiqh. However, having met many graduates from these courses over the last 10 years, there is often an inability to apply their knowledge, as well as a lack of academic literacy and critical thinking‎. Thus, such students need additional years of training to become real scholars. Of course, all these courses are not the same and inevitably my comments are generalisations. However, the curriculum that is followed reflects the priorities of a particular time and place (18th century India) and should not be taken as an immutable ahistorical entity. Informally, many of the younger graduates and scholars accept that changes can, and perhaps should, be made. However, institutional change is usually a fairly slow process. Moreover, there is also a backlash against change in the name of preserving the ‘authentic Dars Nizami’.

Al-Salam’s course ‎is different in a number of ways. It is part-time, only one day a week in university time, which opens it up to a much wider range of students of all ages, than one will typically find at a dar al-‘ulum. I should also point out that there is a 10 day ‘umrah and separate summer residential, which although auxiliary, are meant to slightly address the lesser amount of time, both in terms of suhbah and the inculcation of piety (an important objective of any serious Islamic education), as well as ‘ilm.

The focus at Al-Salam, especially in the last 2 years which is exclusively taught by Shaykh Akram (rather than mainly his senior students as for the first 3 years), is on critical thinking and developing academic ability, as well as covering texts. The idea is that students will spend the time they are not being instructed studying the issues, researching or reading the texts, or other works. Thus, the course is somewhere between a traditional ‘alim course and say a Masters university degree. In terms of content, there is a big focus on in-depth study of hadith through al-Bukhari and al-Tirmidhi and study of tafsir, comparative early fiqh and usul, as well as history. A final point is that the whole course revolves around the thinking and approach of Shaykh Akram and so is only suitable for those who appreciate his areas of focus and approach to the disciplines. In my opinion he is a great scholar who tirelessly gives of himself for the community and for the serious student there is much to be gained.

Finally, it is useful to think about the potential outcomes of the generalised ‘traditional ‘alim course’ I have been writing about and the Al-Salam course. The former is focused first and foremost on training the student to be able to understand in detail all parts of Hanafi fiqh and to be able to provide evidences and arguments for the positions. They would also have a good general knowledge of Islamic disciplines and be grounded in reading texts within the different genres. This training is particularly helpful for someone becoming a mosque imam, mufti, or fiqh teacher, although particularly in the case of imams, desperately needs to be coupled with vocational training in community issues, as well as supplementary studies (e.g. of the type offered by Cambridge Muslim College, where I am currently employed as a Research Fellow).

The Al‎-Salam graduate would probably not be as strong in pure Hanafi fiqh, due to the comparative nature of the course and the lesser time for instruction. However, they would have, I think, a broader view of the different approaches that exist to interpreting the shari’ah and a better understanding of the history and genesis of the different madhahib. They would also have a superior appreciation of the mechanics of hadith criticism and would be better able to answer Western academia’s criticisms of this system, as well as take the first steps towards making their own judgements about hadith grading and interpretation, or at least be able to understand the arguments of the masters of the past. Finally, they would have better research and academic skills. Therefore, I think this training is particularly helpful for someone becoming an academic, researcher or intellectual.

The final caveat is this: to become an Islamic scholar in the true sense would take many more years after this, so deficiencies in either course could be rectified with attention to particular areas. Although one may earn an accreditation of ‘alimiyya after these courses, no-one should think that they are now the finished article. In traditional dar al-‘ulums there is a process of takhassus, or specialisation, into fields such as hadith, tafsir and ifta’ (giving fatwa). In Al-Salam, Shaykh Akram’s senior students continue to study with him, as well as other teachers. In fact, it was the Shaykh and the Institute who encouraged (and forced!) his students to start teaching, rather than them asking for it. More generally, we should strive not to be bogged down in the egotistical business of forging our ‘identity’ through our association with any particular approach or school, but rather realise that many things are open to a difference of opinion and likewise there are many ways to gain knowledge. We should also encourage the widening of benefit to all in the community through the different means that Allah makes available for us, wa Allahu a’lam.
 

 

 

 

 

 

 

 

 

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Understanding Q. 4:34-35

Islam is a complete way of life and provides guidance for humanity in all places, times and indeed states. As this guidance leads towards the path pleasing to God, it necessarily upholds the highest ideals, which are witnessed in the life of the Beloved Messenger. At the same time, in order to be of practical benefit to people at all levels of spiritual and moral development, the rulings of Islam must deal with the interpersonal problems that always have the potential to occur within society. One of these issues is that of marital discord, and with it, the threat of violence, particularly against women. As we shall see in the following investigation, this was a social problem that the Prophet fought against in his mission to educate and guide the Arabs of the 7th century – just as it remains endemic in modern societies – and faced social turmoil in Madinah due to his zeal in this regard. Furthermore, the Qur’anic verse in regard to this subject that is used by both some Muslims to defend the indefensible, as well as by critics of Islam to attack the faith, when read alongside the Prophet’s Sunnah, actually gives clear and peaceful steps that can be taken to attempt to resolve marital discord.

The Qur’an mentions the institution of marriage as a blessing from God, and speaks about it in the loftiest of spiritual terms:

‘Another of His signs is that He created spouses from among yourselves for you to live with in tranquillity: He ordained love and kindness between you. There truly are signs in this for those who reflect.’[1]

At the same time, there is no shame in the physical nature of the relationship between husband and wife, such that:

‘You [believers] are permitted to lie with your wives during the night of the fast: they are [close] as garments to you, as you are to them.’[2]

It is an undeniable fact that one of the distinguishing aspects of the marital relationship is its collapsing of barriers of personal space between the spouses, such that close physical contact becomes the norm. However, with this comes a danger of oppression from the stronger party, typically the husband towards his wife. In many cultures, such as the Arabs of the 7th century to whom the Prophet was sent, the use of violence can become endemic within marriage. The Messenger of God, as a perfect model of human character, was beyond such signs of weakness. It is thus dispassionately recorded about him – in a time in which this quality was not culturally seen as praiseworthy:

“The Messenger of God never hit anything with his hand, except when fighting in the path of God. Nor did he ever hit a servant or a woman.”[3]

When engaged in teaching his fellow countrymen the essentials of faith and pious behaviour, the Prophet openly showed his astonishment of the violation of the trust of marriage with violence:

“Not one of you is to strike his wife as if striking a servant, and then to sleep with her at the end of the day.”[4]

The correct interpretation of this hadith is neither that wife beating is permitted as long as it is not too hard, nor that it is acceptable as long as the husband stays away from his wife until the following day. Rather, the Prophet is expressing astonishment at how a man in a relationship based on love and mutual kindness, is able to treat his wife with such disrespect, yet continues to expect closeness and intimacy.

Perhaps unsurprisingly, the people of his time found it hard to at first implement the high standards of the Prophet, and he therefore became caught in the midst of a power struggle between the men and women of Madinah. The men felt that without recourse to this sanction to which they had become accustomed, their wives would gain the upper hand, whilst the women were not keen to relinquish their newly granted rights. This situation is narrated after the prophetic statement, which most clearly shows the prohibition of wife beating:

‘The Messenger of God said, “Do not hit the female servants of God,” so ʿUmar came to him and said, “The women have overpowered their husbands”, so the Messenger of God made an allowance for their hitting. Later, a great many women went around among the household of the Messenger of God complaining about their husbands. The Prophet said, “A great many women have gone around the household of Muhammad, complaining about their husbands – they [the husbands] are not the best of you.”’[5]

This hadith is very instructive, as far from the stereotypical image of women within the model Islamic community as cowed, it shows they were engaged and dynamic, not happy at the suspension of their protection, even if it was a temporary concession made in order to stabilise the rapidly transforming society. Furthermore, the justice of the Prophet was such that when thereafter a woman came to him personally complaining of having been hit, he ruled that her husband was to be given an equal injury in kind.[6]

The Divine Wisdom envelops all, however, and this incident was the causative event for the revelation of a verse, which when taken with the one that follows it, provides universal guidance for both a sound relationship between spouses, and a step by step method for resolving the problem of high-handedness without resulting to divorce:

‘Husbands should take good care of their wives, with [the bounties] God has given to some more than others and with what they spend out of their own money. Righteous wives are devout and guard what God would have them guard in their husbands’ absence. If you fear high-handedness from your wives, remind them [of the teachings of God], then leave them to their beds, then [lightly] tap them [to make clear the severity of the situation]. If they obey you, you have no right to act against them: God is most high and great. If you [believers] fear that a couple may break up, appoint one arbiter from his family and one from hers. Then, if the couple want to put things right, God will bring about a reconciliation between them: He is all knowing, all aware.’[7]

The beginning of these verses indicates that just as husbands have duties in terms of provision, their wives must remain chaste and responsible with the family’s wealth and property, when the husband is not there. The crucial point then follows, which presents a remedy to be applied in four increasingly severe stages if the marriage begins to seriously falter, for instance if there is a complete lack of due respect or openly indecent behaviour.

Thus the first step is admonition about the correct Islamic behaviour; second is ignoring one’s spouse within the bed, or sleeping apart for up to a month; then as a final action before seriously considering divorce – and bringing in family arbitration – is ‘lightly tapping’. This is the most suitable translation of the Arabic verb ‘ḍaraba’ in this context considering the many narrations from early Muslims about the extreme lightness of the contact meant. A light tap at this stage is not a reprimand or act of violence to ensure obedience, but an act of communication within the usually physical relationship of marriage after a month of non-contact. It is a last resort intervention meant to wake up the erring spouse to the severity of the situation, and no doubt accompanied with an urgent repeat of the earlier admonition that the pattern of behaviour, if continued, will end with divorce. The verse also makes clear that separation and the threat of divorce are not justified when conduct is good, and that the community at large have a duty to try to reconcile matters if possible through recourse to both families.

This process is exemplified in the life of the Prophet at the time of the incident in which he stayed away from his wives for an entire month, because of their repeated difficult behaviour with him, so that even his companions began to think he had divorced them all.[8] He was, however, demonstrating the guidance of God, such that when the month was completed, the verses were revealed:

Prophet, say to your wives, “If your desire is for the present life and its finery, then come, I will make provision for you and release you with kindness, but if you desire God, His Messenger, and the Final Home, then remember that God has prepared great rewards for those of you who do good.”’[9]

The Prophet returned to his wives and with the best of manners, recited this revelation to each of them in turn. As they all chose to remain with him and thus accepted the divine conditions mentioned in the verses that follow them in the Qur’an[10], the issue was resolved at that. Here we can see that the Prophet was honoured by his Lord and shielded by means of His love and concern from even having to take the step of even lightly tapping his wives, in order to convey to them the choice that they faced.


[1] Al-Rūm (30), 21.

[2] Al-Baqarah (2), 187.

[3] Ibn Majah.

[4] Al-Bukhari, v. 3, Kitab al-Nikah, Ch. 94, hadith 5259.

[5] Abu Dawūd, v. 1, Kitab al-Nikah, Ch. 43, hadith 2148.

[6] Al-Suyuti, Lubab al-Nuqul fi Asbab al-Nuzul, p. 78.

[7] Al-Nisā (4), 34-5.

[8] Al-Bukhari.

[9] Al-Aḥzāb (33), 28-29.

[10] Al-Aḥzāb (33), 30-34.

Certification of Halal Meat in the UK

The final version of my research on certification of halal meat in the UK has been published and is available for download from the CIS website here: http://www.cis.cam.ac.uk/Report%20-%20Certification%20of%20Halal%20Meat%20in%20the%20UK.pdf

As well as some revision in content and an improved format that can be referred to by other researchers, this published version also contains the full transcriptions of the interviews conducted with the heads of the HFA and HMC within the appendices.

I hope it can be of some benefit in advancing the condition of the meat industry generally and the ‘halal’ portion of it specifically.

Al-Sarakhsi’s Interpretation of Apostasy in Islam

Following an online discussion, I found it useful to go to al-Sarakhsi’s al-Mabsut and extract a more nuanced reading of his position on apostasy. All references are from the edition published by Dar al-Ma’rifah in 1989, vol X. These are research notes and not a developed thesis:

1) The idea, put forward by some scholars, that al-Sarakhsi did not hold the death penalty for the murtadd (apostate) is refuted by the opening lines of Bab al-Murtaddin (Chapter of the Apostates) on p. 98. He here repeats the standard Hanafi position that when a Muslim apostates, Islam is presented to him. He either enters into Islam or is killed on the spot, unless he asks for a delay, in which case he is given three days. What is very interesting about al-Sarakhsi’s discussion in al-Mabsut, however, is how he understands and explains the received rulings, and the legal reasoning that he demonstrates whilst doing so.

2) It is interesting to see where Bab al-Murtaddin is situated in his work. It is part of his Kitab al-Siyar (Book of Foreign Relations) and is followed by Bab al-Khawarij. It is not within Kitab al-Hudud. Also the plural title (al-Murtaddin) as opposed to the singular al-Murtadd gives an advance indication of the kind of understanding he will employ in this issue, one which distinguishes a political element to the rulings.

3) As part of his opening remarks in the chapter, al-Sarakhsi alludes to the following verse of the Qur’an in regard to the basis of obligation in the killing of apostates:

‘Tell the desert Arabs who stayed behind, ‘You will be called to face a people of great might in war and to fight them, unless they surrender: if you obey, God will reward you well, but if you turn away, as you have done before, He will punish you heavily.’ (al-Fath, 16)

However, he implicitly recognises that this is not clear evidence for the ruling by using the phrase ‘qila’ (it is said), which normally acknowledges a weaker opinion. He thereafter moves straight on to the evidences from the Sunnah. It can also be noted that the context of Surah al-Fath is one with a lot of emphasis on loyalty to God and His Messenger (saw), but punishment for failing in this is related to the Hereafter only (see verse 13).

4) Al-Sarakhsi quotes the ruling of Imam Abu Hanifah, recorded by Muhammad al-Hasan al-Shaybani, that female apostates are not to be killed but imprisoned until repenting or dying (p. 108). In putting forward his defence against the opinion of al-Shafi’i, who holds that the ruling is the same for a woman as for a man, he quotes narrations that suggest female apostates were only killed when they were combatants, or were encouraging fighting against the Muslims (p. 110).

5) The key passage follows:
‘It is probable that this [ruling of killing a certain female apostate] was from [Abu Bakr] al-Siddiq, may Allah be pleased with him, in the way of general welfare (maslahah) and politics, like he ordered the chopping of the hands of the women that beat the drum at the death of the Messenger, may Allah bless him and grant him peace, in order to convey their malicious joy. The meaning of it [the example of such a woman] is that she is a rejector of faith so is not killed – just like one who is initially a non-believer. This is because killing is not the punishment for apostasy, but is deserved on account of [violent] perseverance in rejecting faith. Do you not see that if such a person embraced Islam the punishment would be lifted on account of the absence of this perseverance? What is deserved as a punishment is not lifted by repentance – like the hudud. Once the cause of them is clear to the Imam, they are not lifted by repentance…Indeed, changing of one’s religion [away from Islam] and the initial state of disbelief are from the gravest crimes, but they are between a servant and his Lord, so the punishment for them is delayed until the the Abode of Requital. What is put forward in this world is of the nature of political legislation for the general benefit of humanity, like qisas (retaliation) for the preservation of life…in regard to the one persevering in rejecting faith, he is a belligerent to the Muslims, so he is killed to ward off warfare.’ (p. 110)

Thus we can see that al-Sarakhsi’s understanding of the issue is very much tied up with the political situation of the Muslim community and the meaning of apostasy as a political act and – in early Islamic history – one of hostility and war.

6) A final point relates to the terminology used by al-Sarakhsi. An interesting issue that has come up in discussion is the definition or meaning of ‘apostasy simpliciter’ and whether classical jurists would use such a term. On p. 109 al-Sarakhsi writes that ‘Women are not killed because they do not fight and in this there is no distinction between the initial and contingent states of disbelief (bayna al-kufr al-asli wa bayna al-kufri al-tari’). Here and elsewhere, al-Sarakhsi uses ‘al-kufr al-tari’ as a term to refer to apostasy as opposed to ‘al-kufr al-asli’ – the initial state of disbelief. His usage would suggest that al-kufr al-tari’ could be fairly well equated to ‘apostasy simpliciter’ (apostasy without qualification, usually understood in this discourse as apostasy in faith without necessarily comprising other further actions against the community), while ‘irtadd’ (apostasy) and ‘al-israr ‘ala al-kufr’ ([violent] perseverance in rejecting faith) refer to apostasy with a distinct political connotation. In al-Sarakhsi’s view, it seems it is this political element on which the death penalty is ultimately to be predicated, on the basis of maslahah (general welfare). Wa allahu a’lam.

The Legacy of Ibrahim al-Nakha’i in the Hanafi School

A critical assessment of the contribution of the jurist Ibrāhīm al-Nakhaʿī to the development of the legal methodology (uṣūl) of the early Hanafī school of jurisprudence, with a focus on the historical validity of the sources.

 

Shāh Walī Allah (d. 1175/1762), in his magnum opus Ḥujjat Allah al-Bālighah, anticipated the critical light that modern academic scholarship would later throw on the traditionally dominant view of the origins of the Ḥanafī school of jurisprudence. In a passage that has provoked much controversy within Islamic scholarship[1], he refuses to reaffirm the pre-eminence of Abū Ḥanīfah’s (d. 150/767) ijtihād and rather states,

‘[He] was the closest of them to the way of Ibrāhīm (al-Nakhaʿī) and his contemporaries and very rarely departed from his teachings. He was extremely talented in making legal derivations based on Ibrāhīm’s school and was a precise inquirer into the meanings of the derivations, and he gave the fullest attention to positive law (al-furūʿ)…he doesn’t diverge from this procedure except on insignificant occasions.’[2]

The implication of this argument, which the author extends to Abū Ḥanīfah’s two companions, Abū Yūsuf (d. 182/798) and al-Shaibānī (d. 189/805), is that the early Ḥanafī school was reliant on the methodology of Ibrāhīm al-Nakhaʿī (d. 96/715) in its ijtihād, to the extent that it barely contributed to the development of legal theory at all. An alternative and almost opposite model, provided by Joseph Schacht in his Origins of Muhammadan Jurisprudence, views the body of doctrine ascribed to Ibrāhīm as essentially legendary[3], yet gives considerable credit to the legal advances made by Abū Ḥanīfah and his companions in Kufa[4].

This study seeks to make a serious contribution to this subject by investigating Ibrāhīm‘s legal methodology in some detail and tracing the extent to which it influenced the approach of the early Ḥanafī school. In order for this work to be academically credible, however, given the doubts that have been made about the reliability of the sources available for the formative period of Islam, it will be necessary to investigate what is at stake within the literature on this issue. The structure that will be followed will, therefore, first involve histiographical and methodological considerations, focusing on the debate that has centred about the use of the isnād in Islamic scholarship. After discussing the reasons for the impasse of scholars within the so-called traditional and sceptical camps, aspects of Harald Motzki’s work will be presented as showing promise for moving beyond the assumptions of both groups. A methodology allowing us to do just that in the case of Ibrāhīm will be utilised and the argument will be made that we can have a general confidence in the historicity of the material ascribed to him. Moving on to the intricacies of his legal methodology, his contribution to the early Ḥanafī school will be analysed under the categories of the Qur’ān, sunnah, ijmāʿ and ra’y, thereby approximating the classical order of the sources of Islamic law. Our conclusion will aim to concisely synthesise the findings of the investigation and to present an overall picture of the proper place of Ibrāhīm al-Nakhaʿī in the genesis of Ḥanafī legal theory.

In examining the subject of law in early Islam, the need for careful analysis of not just the historical sources used, but the methodological framework in which they are to be embedded, is crucial given the sceptical doubts that have been cast upon the reliability of the hadīth literature. While it is true that hadīth reports (in this study always understood in the wider sense that includes āthār) are by no means the sole source of Islamic law, they do occupy a special place in the present task; as statements relayed by means of isnād offer the only available information about the substantive teachings and, by implication, the legal methods of Ibrāhīm al-Nakhaʿī.  Due to the complexity of the sustained debate about the historical reliability and validity of the hadīth, however, it will be necessary to summarise the state of current research as it relates to this matter, before using it to situate the present inquiry and make a case for its methodology.

The traditional account of early Islamic legal history, implicit in the chains of authority cited throughout the fiqh literature and explicit in the genre of tabaqāt exemplified by the work of Ibn Saʿd, is well known.[5] Rather than repeating it here, it will suffice to comment on some of the underlying presuppositions informing its historical methods, before analysing the reasons why it has come under criticism.[6]

The basic tool that allows any attempt at historical inquiry into the development of ideas in the early Islamic period, for which significant documentary evidence is unavailable, is the isnād, which although most famously used in narrating prophetic hadīth, was ubiquitous in claiming the genuine ascription of a statement, or indeed literary production, to any particular individual. The traditional understanding of its origin is that it arose as a necessary means for the accurate transfer of prophetic reports between the generations of the companions and the successors, in an era dominated by sectarian strife or fitna, as alluded to in a remark attributed to Muḥammad ibn Sīrīn (d. 110/728) and usually interpreted as the period following the murder of the third caliph, ʿUthman (d. 35/656).[7]

It is interesting that while statements are commonly made about both the volume of fabricated reports and isnāds that were propagated and the excellence of the science of hadīth criticism that was developed to sift them out[8]; the fundamental maxim that underlay the isnād system often goes relatively unnoticed: ‘al-muslimūn ʿadūl’ or ‘Muslims are honest/acceptable in testimony’. This is, curiously enough, cited on the authority of none other than Ibrāhīm al-Nakhaʿī and is supported with the consideration that this acceptability is the usual state of affairs, provided nothing suspicious has become apparent.[9] While sceptical scholars of the modern period, as we shall see, would argue that this idea is hopelessly naive, it is important to understand an important subtlety in the use of this principle in its native Islamic context. A major stream of juristic thought held that even when narrated with a reliable isnād, an aḥad (solitary) report, the most numerous type, was considered to be conjectural evidence, not enough by itself to establish the truth.[10] Thus we can understand that in its approach to its own history, traditional Islamic scholarship has employed two balancing tendencies in regard to the use of the isnād: husn al-ẓann, the holding of a good opinion in the absence of other information, along with a recognition that what could usually be obtained through this means was a probable rather than definitive account of reality.[11]

Despite the above proviso, this traditional approach to Islamic legal history has attracted severe criticism by those who do not deem the principle of assuming integrity unless proven otherwise justifiable.[12] The arguments of the most influential of these scholars, Joseph Schacht, are of particular importance to this study, as his work has not only been seminal in the academic study of the ḥadīth literature, but has also paid close attention to the development of legal thought in Iraq, the home of Ibrāhīm al-Nakhaʿī and the early Hanafī school. For this reason, while the overall orientation of his theory in relation to the isnād system will be analysed here, his more specific commentary on individual jurists, doctrines and legal methodology will form an important point of reference later in this study.

The theory that Schacht presented in The Origins of Muhammadan Jurisprudence, when stripped down to its fundamentals, can be summarised in the following manner. Primarily using the four source texts contained in the writings of al-Shāfiʿī, the ‘Athār of al-Shaibānī, the ‘Athār of Abū Yūsuf and the Muwaṭṭa’ of al-Shaibānī, he makes two important observations. Firstly, that isnāds used earlier in juristic discussion tend to stop sooner than those of later collections, for instance at the level of successors, rather than companions or the Prophet, thus giving the appearance of them growing backwards.[13] Secondly, there seems to be a corresponding tendency to increasingly refer to ‘higher level’ authorities in disputation between juristic schools[14], culminating in al-Shāfiʿī, who consistently argued for the binding identification of only prophetic ḥadīth with the sunnah.[15] Schacht therefore draws the conclusion that isnāds were ‘improved’ and fabricated on a massive scale in order to extend local doctrines back to earlier authorities and to prevail in inter-school polemic.[16]

The glaring methodological flaw that runs throughout Schacht’s work, however, is that having unconditionally accepted Goldziher’s famous theory of the backwards growth of isnāds as his initial premise[17], he interprets all of the available evidence, in particular the two observations mentioned above, in a manner which supports it, before then reasserting it as his conclusion.[18] This, of course, leads him open to the charge of composing an invalid, circular argument. Defenders of the traditional account, such as M. Al-Azami, have given alternative explanations for the phenomena that Schacht observed, as well as criticising his specific examples and reasoning and have arguably thereby undermined many of his results.[19] However, other scholars of a more sceptical disposition, such as Norman Calder, have continued to see much merit in rejecting the principle of husn al-ẓann in the matter of isnāds.[20] While not necessarily accepting all of Schacht’s work, they have been severe on those who, in presenting coherent alternative accounts, have allowed this traditional principle to remain axiomatic in their methodology. This is what lies at the root of H. Berg’s excellent summary of the predicament of both scholarly perspectives,

‘The arguments of Abbott, Sezgin, and Azami rely on biographical materials that were produced symbiotically with the isnāds they seek to defend. These sources are not independent. And so their arguments seem no less contrived, circular, and contrary to reason as those of the sceptics seem to their opponents. As a result, we are left with two seemingly diametrically opposed theories for the origin and development of ḥadīths and, hence, of early Islam itself.’[21]

In looking for a way to move beyond this state of affairs, perhaps the most original and dynamic modern piece of research has been that of Harald Motzki, in The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools. In this work, he proposes to analyse the authenticity of the Muṣannaf of ʿAbd al-Razzāk (d. 211/826), in particular the legal traditions from Ibn Juraij (d. 150/767), which often refer to his teacher ʿAtā’ b. Abī Rabāḥ (d. 115/633). His major methodological innovation is in drawing up a range of indices, by which he seeks to determine if a particular name in an isnād is associated with a genuine authorial voice, thus demonstrating the implausibility of fabrication. What Motzki means by indices in the case of ʿAtā’’s jurisprudence as recorded in the tradition of Ibn Juraij is principally what he calls ‘two external and six internal formal criteria of authenticity’.[22]

As Motzki’s external criteria will prove more useful in this study than his internal[23], we will briefly examine them. The first, magnitude, refers to the frequency distribution of the narrator’s sources, while the second, genres, means the structure of the account’s text (matn) in terms of dicta (a statement not preceded by a question) and responsa (a legal opinion in response to a question). These genres can be further broken down into: answers to the narrator’s own direct and indirect questions (to ʿAtā’); those from other anonymous and known questioners; responses using ra’y, tafsīr, or other material and responses narrating prophetic, companion or successor hadīth.[24] In Motzki’s research these are largely statistically based measures, however considering the smaller scale of this study it will be sufficient to draw more general, albeit imprecise, conclusions about the corresponding data available in the corpus of isnāds available featuring Ibrāhīm al-Nakhaʿī.

Motzki argues that on the basis of these indices (along with those he calls internal) we have good reason to believe that the material in the Muṣannaf of ʿAbd al-Razzāk that is ascribed to ʿAtā’ b. Abī Rabāḥ via Ibn Juraij is an accurate representation of the teachings taken down by an honest and assiduous legal student from his well-respected master, a successor, who lived most of his life within the first Islamic century. Motzki further contends that having taken this preliminary step, it is then possible to compare information from traditional biographical sources, as well as to make reasonable assumptions in order to work towards a historical reconstruction of the early history of Islamic jurisprudence in Makkah, which is the purpose of his book. [25] The parallels with the present investigation into the near-contemporaneous Ibrāhīm al-Nakhaʿī are clearly discernable, although in this case as well as trying to determine authenticity and legal methodology, we will be looking for influence on the later Iraqian jurists of the Hanafī school.

It would seem that the general contours of Motzki’s approach, if not necessarily his exact methods, will provide a route to assessing the historicity of the material ascribed to Ibrāhīm.[26] That this is a necessary pre-condition for credibly assessing his legal methodology, is shown by Schacht’s assessment that, ‘until their authenticity is proved, we must regard the alleged opinions and traditions of Ibrāhīm as being fully as fictitious as those of his contemporaries’[27] and his assertion that insufficiently proven are ‘a number of statements which attribute to Ibrāhīm ra’y or systematic reasoning in general’.[28] While we shall return to Schacht’s assessment, it is useful to analyse his general argument in regard to these fairly sweeping conclusions. His main idea is that Ḥammād b. Abī Sulaimān (d. 120/738), the major link between Abū Ḥanīfah and Ibrāhīm al-Nakhaʿī in the ḥadīth of the early Ḥanafī school – particularly the two Athār texts attributed to al-Shaibānī and Abū Yūsuf – put his own doctrines under the aegis of Ibrāhīm in order to secure greater authority for them.[29] His evidence for this seems to mainly lie in consequences stemming from his own theory of the backwards projection of traditions[30], a statement from Ibn Saʿd which he spuriously interprets as confirming it[31] and the contention that opinions attributed to Ibrāhīm showing abstract and technical reasoning could not possibly belong to his era, although they could be acceptably dated to Ḥammād who died only 25 years later. [32] As should be clear from this summation, there are good reasons to regard Schacht’s rejection of the historicity of Ibrāhīm’s doctrine as built on shaky foundations. This is not least because his assertion, in a pattern that becomes familiar upon reading his Origins, is a necessary consequence of his theory, while simultaneously seeking to stand as part of his argument for the same theory’s explanatory validity.

In trying to take a second look at the historical evidence for the authenticity of the corpus of doctrine ascribed to Ibrāhīm, while taking benefit from the methodology applied by Motzki, we must proceed cautiously. An essential realisation in relation to the above criticism of Schacht is that ‘one escapes the inadmissible circular conclusion only when it is possible to determine the genuineness and age of a source largely independently of features of content.’[33] What this means for our approach is rather than assuming what content is possible in the ḥadīth of Ibrāhīm, we must look first for signs of authenticity in the narrations made by Ḥammād, as well as cross-checking in other extant sources that narrate from Ibrāhīm (something notably absent from Schacht’s analysis and very important given his claim of fabrication by Ḥammād).[34]

A possible objection to the above method from the extremely sceptical perspective held by Calder, which was alluded to earlier, is that we have no guarantee that Abū Ḥanīfah really narrated from Ḥammād, that al-Shaibānī and Abū Yūsuf recorded traditions accurately from him and that the school preserved these texts in the period until the earliest available datable manuscripts. There are, however, a number of indications that such a position is neither necessitated by the textual evidence that we possess, nor more reasonable than the traditional alternative. Calder’s claims of the ‘organic growth’ of juristic literature, while in some ways more believable than Schacht’s conspiratorial picture, have greater credibility when, for instance, arguing that the expansive Kitab al-Asl, attributed to al-Shaibānī, may not be his work in its entirety.[35] As a text of furūʿ fiqh, its function was to give derived rulings on the needs of everyday life and its chapters may well have been extended, in order to cover new cases in a manner that in later centuries would have been replaced by the practice of writing differentiated commentaries. The texts that are being used in the present study, on the other hand, were not composed as fiqh manuals, but as collections of hadīth, with the exception of the Muwaṭṭa’ of al-Shaibānī which chronicles juristic dispute as well. The intention in the case of these hadīth was to give an accurate record of the juristic pronouncements of individuals, as well as their transmission of the sunnah, rather than to codify doctrine per se. The evidence for this assertion in the works under consideration is witnessed, for instance, in the fact that Ibrāḥīm’s opinion, through the narration of Ḥammād and others, remains in the text of al-Shaibānī’s Al-Āthār[36], even if not adopted by Abū Ḥanīfah and al-Shaibānī. Furthermore, while al-Shaibānī tends to agree with the verdict of his teacher, at least in this work, there are a number of cases in which he gives a different ruling and states that he does not adhere to that of Abū Ḥanīfah.[37] This indicates a genuine retention of information between different generations of independent scholars, each feeling no need to ascribe their opinions to others for authority. This form also seems inconsistent with significant tampering by later transmitters, as despite the instances of divergence cited above, it places Abū Ḥanīfah as an important link in a chain of scholarship. This is to some extent in contrast with later literature within the Ḥanafī school, which in emphasising his qualities of ijtihād, would sometimes neglect his debt to a rich juristic lineage.[38]

Our attention should now return back to the figure of Ḥammād b. Abī Sulaimān and the record of his narrations that exist in our sources. In terms of Motzki’s external criteria, the most notable feature of the magnitude of his narrations is that they overwhelmingly are cited on the authority of Ibrāhīm al-Nakhaʿī, with Saʿīd b. Jubair perhaps the second most common successor and others featuring rarely.[39] On the surface, this could be a sign of exactly what is claimed by Schacht, Ḥammād passing off his own doctrines as having come from Ibrāhīm. It could equally show that he enjoyed a long student-teacher relationship with the most prominent jurist of Kufa. Looking at the genres of Ḥammād’s narrations, it is notable that while in most cases he reports dicta on the authority of Ibrāhīm using ʿan, there are regular occurrences of questioning from Ḥammād engendering responsa, either initially or following on from a point, as well as indirect questioning from anonymous interlocutors.[40] This variation, along with the wide distribution of transmitted material between apparent ra’y, mursal narrations (prophetic and companion), and to a lesser extent continuous ḥadīth, seem unlikely to be the work of a fabricator and support the authenticity of Ḥammād’s association with Ibrāhīm.[41]

The internal criteria developed by Motzki, however, are of much less applicability to the case under investigation than they were in his study of Ibn Juraij, because of the differences in compilation between the two cases. Ibn Juraij, essentially engaged in composing his own Muṣannaf, which was later collected by ʿAbd al-Razzāk, included a great deal of his own comments on his teacher’s opinions, a practice similar to that of al-Shaibānī. It is clear from the texts that Ḥammād, on the other hand, is recorded in the context of the early Ḥanafī school, as primarily a link in a chain that stretches to his authoritative teacher. It therefore seems that either Abū Ḥanīfah did not transmit Ḥammād’s commentary on Ibrāhīm’s material, or that if he did, Abū Yūsuf and al-Shaibānī failed to mention it. Of course, the Schachtian interpretation is that the reason this is not to be found is precisely because Ḥammād attributed his own opinions to Ibrāhīm. Therefore, it seems there is a need for another method to secure the body of doctrine under discussion as genuinely from Ibrāhīm al-Nakhaʿī, if it is possible to meaningfully discuss his real, as opposed to apparent, contribution to the Ḥanafī school.

It is proposed that reasonable confidence in the authenticity of the āthār cited by Ḥammād as coming from Ibrāhīm can be gained by cross-checking the reference to the latter in a non-Ḥanafī source, the Muṣannaf of ʿAbd al-Razzāk, along with careful contextual reasoning to show that it is implausible to suggest that Ḥammād’s alleged deception could have gone undiscovered. The Muṣannaf records 29 reports from Ibrāhīm, via 24 different narrators, in which Ḥammād is represented only once.[42] This is vastly different to the distribution noted earlier, but not altogether surprising when it is remembered that ʿAbd al-Razzāk lived quite a distance from Kufa in Ṣaʿnā’, Yemen and would therefore have naturally only gradually received scattered reports of Ibrāhīm’s sayings.[43] There is, however, considerable consistency between the doctrine reported from these various channels and that found in the books of the Ḥanafī school, a strong sign that a body of real historical opinions can be traced to Ibrāhīm.[44] Perhaps even more telling is the fact that two of these reports are from the well-known Qatādah (d. circa 117/735), who resided in Basrah[45]. He is just one example of a contemporary of Ḥammād who received teaching from Ibrāhīm and also lived long enough to pass on reports to Abū Ḥanīfah.[46] This is important as it underlines how easy it would be for Ḥammād’s fabrication to be exposed and his credibility to be destroyed, if he had begun to attribute his own doctrines or newly invented ḥadīth to Ibrāhīm as Schacht suggests. There is, furthermore, the record in the sources of Abū Ḥanīfah receiving reports from Ibrāhīm via intermediaries other than Ḥammād, which would have allowed him to make up his own mind about the authenticity of his teacher’s narrations.[47] On the basis of the above arguments, it seems reasonable to suggest that we can accept the material transmitted as the doctrine of Ibrāhīm as historical unless proven otherwise, in contradistinction to Schacht’s formula, and use it as the basis for determining his legal methodology.

Any treatise of classical Islamic legal theory, uṣūl al-fiqh, will usually begin with defining the Qur’ān as the first source of law and delimiting the acceptable hermeneutic rules for deriving rulings from it. In approaching the legal methodology of Ibrāhīm al-Nakhaʿī, it is also appropriate to begin with his use of the Qur’ān, which first must be put into its proper context. Upon reading through the source texts referred to earlier, containing Ibrāhīm’s narrations on the different chapters of fiqh, it becomes clear that the Qur’ān greatly shaped the very intellectual framework in which he was jurisprudentially active, in both ritual and strictly legal matters. This is such an obvious and striking fact, that it is very difficult to understand how any scholar has been able to think otherwise.[48] Z. Ansari has commented in regard to traditions of the Prophet, although his words apply equally to later juristic work:

‘An overwhelming majority of them are addressed to problems which either presuppose or seem to have been raised by Qur’ānic legislation. This legislation usually consists of such broad and general statements of principle that any attempt to put them into practice necessarily requires their elaboration and the determination of their precise form.’[49]

If we are to take even a cursory glance at the range of legal topics that Ibrāhīm engaged with, either in his own ijtihād or through transmitting other materials, it is clear that Qur’ānic rulings and norms are presupposed in the discussion, which then becomes a case of outlining the ṣunnah, an issue that will be dealt with later. Just a few of many examples of subsidiary implications and practicalities of legislation arising from the Qur’ān, which he dealt with: statements in regard to divorce, which take for granted the Qur’ānic ruling of three menstrual periods, qurūʿ, for the ʿiddah[50]; the implementation of the physical punishments, hadd, for theft[51]; the methods of expiation for an oath[52]; and the delimiting of the different varieties of homicide and their relationship to retaliatory payments.[53]

Having established that Qur’ānic provisions and legal norms formed the general background of Ibrāhīm’s rulings, it is possible to investigate what we can ascertain about his more specific techniques of legal exegesis and to what extent they contributed to the early Ḥanafī school. We can by no means assume that the few explicit comments that we have in the sources are all that Ibrāhīm knew on the subject. On the other hand, it would also be rash to assume we can detect the presence of a fully formed hermeneutic method based on the evidence we have available, unless an exhausting study of his ijtihād is made in this regard, which is impossible here. While the question of ijtihād will be touched upon later in regard to what is meant by ra’y in reference to him, for the present we will survey a number of technical methods to which he clearly was able to make recourse in determining the legal import of the Qur’ān. The significance of these methods for the Ḥanafī school will often be directly witnessed by comments from al-Shaibānī, in which he usually endorses or refines Ibrāhīm’s reasoning or ruling.[54]

In one narration, Ibrāhīm quotes two Qur’ānic verses that use the imperative form, but which he holds to be indicating encouragement or permissibility, anticipating the categories of mandūb and mubāḥ respectively. He argues from this that the performance of a bath on the day of jumuʿah (Friday) is similarly only strongly recommended, despite the existence of a ḥadīth in which it is commanded by the Prophet.[55] He does not, however, employ a technical vocabulary in this regard, while al-Shaybānī uses a loose cluster of terms to express mandūb, including afḍāl and aḥabbu, but follows Ibrāhīm in using lā ba’s (no harm) for mubāḥ.[56]

Ibrāhīm also reveals that he is familiar with the concept of extracting specific legal rulings from more general Qur’ānic statements. He narrates the successor ʿAlqamah’s interpretation of Q24:23, ‘It is He who accepts repentance from His slaves and pardons evil acts and knows what you do” and the fact that he held this as permission that a man may marry a woman whom he has fornicated with.[57]

W. Hallaq mentions that Ibrāhīm al-Nakhaʿī was one of a prominent group of successor legists, exegetes and collectors of traditions, who were at the forefront of discussing the theory and practice of naskh, or abrogation of verses of the Qur’ān.[58] This can be sustained with reference to the Al-Āthār text of al-Shaibānī, in which Ibrahīm is quoted as stating as abrogated a provision in Sūrat al-Mā’idah (5:106), that allows for ‘two from other than you’, interpreted as referring to non-Muslims, to give testimony about a will. Al-Shaibānī clarifies the legal point under discussion and extends the prohibition of the testimony of non-Muslims to all other Muslim affairs.[59] A second instance, this time cited by Ibrahīm on the authority of Ibn Masʿūd, refers to the abrogation of the ʿiddah of widows which was set at four months and ten days in Sūrat al-Baqarah (Q2:234) if they were pregnant. The abrogating verse in this case was in Sūrat al-Talāq (Q65:4), which set their ʿiddah as continuing until they gave birth.[60] That this interest in naksh was an influential aspect of Ibrahīm’s methodology is shown not only by the continued use of this principle within the Ḥanafī school, but also its narration by Abū Ḥanīfah as one of the principles informing his fiqh, ‘The Book of Allah has abrogating and abrogated, and the hadith has abrogating and abrogated.’[61]

Other Qur’ānic interpretation found in narrations from Ibrahīm includes: reasoning from Q23:6, ‘…except from their wives or those they own as slaves’ that a slave may not take a concubine as, ‘she is neither his wife nor his property’[62]; explaining the precise legal implication of the word au (or) in relation to provisions for expiation[63]; and clarifying the extent to which the exceptive clause ‘…except for those who after that are repentant and put things right’ applies to the stipulations preceding it in the legislation of Q24:5 regarding the slanderous accuser of adultery, in which he said, ‘The appellation of being a deviator is lifted from him, but his testimony is never again valid.’[64] Not only does al-Shaybānī concur in all of the above, usually stating that it is also the verdict of Abū Ḥanīfah, but it can be observed that this use of exegetical methods was extended by the early Ḥanafī school and increasingly operated within formalised rules, which were eventually recorded in its uṣūl literature.[65]

In regard to Ibrāhīm al-Nakhaʿī’s use of sunnah as a source of law, it should be noted that the meaning of this term, in particular whether in the early period it primarily referred to the practice of the Prophet, has been almost as greatly contested as the authenticity of the ḥadīth literature itself.[66] Ansari, however, has provided a rigorously documented and convincing semantic analysis of the concept of sunnah, extending from the pre-Islamic era, into its juristic usage in the first two centuries of Islam, in which he argues that the essential normative concept was in place from the Prophet’s lifetime.[67] It will be argued in what follows that despite a reputation for ra’y, Ibrāhīm extensively utilised the sunnah as a source of his legal ijtihād, both explicitly through narrations that can be classed as muttaṣil (continuous) and mursal (skipping a link in the isnād), as well as in many reports that ostensibly originate with him, yet actually reflect a type of inherited ‘practice’ that was seen to derive from the fuqahā’ (legal scholars) among the companions and their Kufan successors.

In determining the weight that Ibrāhīm places on transmitting points of sunnah as legal verdicts, it is important to not only consider his explicit narration of authorities, but seek to discover the juristic environment in which he operated and the role that this played in his usual practice in these matters. In other words, it is paramount to avoid evaluating his legal work by technical distinctions and conventions that emerged later, in particular the almost unilateral identification of the sunnah with continuously narrated ḥadīth that began its classical formation under al-Shāfiʿī.[68] In the words of Brunschvig,

‘If we could free ourselves from the hold of al-Shāfiʿī, whose ingenious synthesis has falsified our perspectives for a long time indeed…we would perhaps be able to see the origins of fiqh with new eyes.’[69]

The most noticeable aspect of Ibrāhīm’s practice of transmission is a very high proportion of mursal reports (in comparison to muttaṣil), which in most cases skips the immediate successor link in the isnād and directly cites a companion, often Ibn Masʿūd, ʿUmar b. al-Khaṭṭāb or Alī b. Abī Ṭālib.[70] Schacht has scathingly attacked the authenticity of this connection by stating that, ‘reference to Ibn Masʿūd himself, as an authority on law, developed out of an earlier stage which consisted in a more general reference to the Companions (aṣḥāb) of Ibn Masʿūd…the name given originally to an anonymous group of Kufians’. He further claims, ‘the doctrine which went under the name of Ibrāhīm al-Nakhaʿī was artificially connected with the very beginnings of Islam in Kufa in the time of Ibn Masʿūd.’[71] From within this perspective, the practice of narrating mursal reports is evidently seen as further sign of Ibrāhīm covering up for the lack of a genuine connection to his named authorities.

In order to examine these statements and to ascertain whether there is a plausible connection between Ibrāhīm and transmitted sunnah from the Prophet and his companions, as well as an explanation for the use of mursal isnāds, it is useful to examine some key dates in regard to Kufa. The city was founded in Iraq in 17/638, under the Caliphate of ʿUmar b. al-Khaṭṭāb (d. 23/643-4) and quickly was home to between 20,000 and 30,000 Muslim residents. It was the centre of teaching for Ibn Masʿūd between 21/642 and 32/652-3 and became the capital of Alī b. Abī Ṭālib’s Caliphate between 36/656 and 40/660.[72] Ibrāhīm al-Nakhaʿī was born in the city in 50/670 and is quoted to have met the companion Anas b. Mālik (d. 91-3/709-11), as well as the Prophet’s widow ʿĀ’ishah (d. 58/677-8).[73] Assuming that Ibrāhīm was active in acquiring knowledge by the age of 15 (if not earlier), there would have been a minimum of 42, 33 and 25 years between him and the direct teaching of ʿUmar, Ibn Masʿūd and Alī respectively. As can be seen, this is a gap which could be bridged by a single generation, or isnād link. Therefore, the following question must be asked: is it reasonable to hold that a young person seeking knowledge of the sunnah, living in a city which during the previous generation hosted celebrated teaching circles from senior companions, such as Ibn Masʿūd, would be unable to find any individuals among the successors who had taken over his mantle? The answer to this, of course, is perhaps mainly indicative of one’s outlook on early Islamic history and its sources, as discussed in detail earlier. Yet, at least from the point of view adopted in this study, it does contest the logic behind the merely shadowy existence, which Schacht allots for the ‘companions of Ibn Masʿūd’.[74]

The problem still remains as to why Ibrāhīm al-Nakhaʿī would transmit using the mursal form of narration in some cases, while quoting full isnāds in others. An answer to this is actually attributed to him by Ibn Sa’d on the authority of al-Aʿmash,

‘I said to Ibrāhīm, “When you narrate to me from ʿAbd Allah [Ibn Masʿūd], give a chain of transmission!” He said, “When I say, “ʿAbd Allah [Ibn Masʿūd] said…”, then I heard it from more than one of his companions, and when I say, “so and so narrated to me…”, then that person [only] narrated to me.”’[75]

While it is possible to regard this as merely an ex post facto justification of the practice, it remains a compelling explanation of why an individual who demonstrated that he was confident in naming authorities, would nonetheless extensively use mursal reports. It seems to reflect a juristic environment in which, diametrically opposed to Schacht’s view, Ibrāhīm’s connection to his sources was well-established and in a context that had not witnessed the school polemics of the 2nd/8th century, it was acceptable for him to take the liberty of omitting the links in common narrations.

The early Ḥanafī school, on the other hand, certainly was put under increasing pressure to provide continuous and full isnāds from the second half of the 2nd/8th century onwards by the methodology of al-Shāfiʿī, who argued in his al-Umm that the prophetic sunnah could only be definitely established through continuous narrations.[76] Despite this, the legacy of Ibrāhīm’s method can be seen in the Ḥanafī school’s relatively more lenient stance towards the acceptability of mursal hadīth, in the case of those that attribute directly to the Prophet from the generation of the companions or successors.[77]

A more indeterminate area of Ibrāhīm’s legal methodology is to be found in those of his verdicts that lack any higher authority, or in narrations that simply report his practice in the form ‘he used to do….’ The prevalence of these forms has tended to give Ibrāhīm a reputation for the uninhibited use of ra’y, or personal opinion.[78] While there is no doubt that this is part of what is being observed, there is a need to both clarify what exactly this broad term means when applied to the juristic activity of Ibrāhīm and to ascertain whether the mere lack of attribution to a previous sunnah really denotes the absence of a precedent. As the issue of ra’y will be tackled below in analysing Ibrāhīm’s legal reasoning, the focus now is to whether an essentially non-hadīth, or practice based sunnah, was part of his methodology. While it is impossible here to make a full investigation into the corpus of his āthār to test this possibility, a few general observations seem to argue for its favour. Ibrāhīm was born within half a century of the emergence of a legally concerned Islamic polity, corresponding with the emigration of the Prophet to Madīnah, a time in which arguably the sunnah could be reliably transmitted informally through human ʿamal (practice), rather than solely restricted to discrete texts.[79] Also the very existence of statements of Ibrāhīm’s ‘opinion’ or ‘practice’ on subjects in which discrete ḥadīth texts are also recorded from him and on points of ritual, or matters that would have be commonly dealt with by the community for a considerable length of time, seems to preclude the assumption that these were pure ra’y. Without thereby denying the presence of legal ijtihād in his thought, particularly in regard to the new cases that he came across, a blanket assumption of ra’y in reports that lack authorities is not warranted from the sources. Again, an understanding of the juristic culture in which Ibrāhīm was embedded allows us to better understand his methods.

Evidence that both supports the above argument and shows how changing times dictated a shift in the acceptability of ‘practice’ as a source of law is expressed in the statements of Abū Yūsuf. The former is recorded as ‘taunting the Medinese for sanctifying their practices into sunna even though these practices might probably have been introduced merely by some market-inspector or administrative official.’[80] However, another passage is very revealing as it demonstrates that the major thrust of his argument is to refute the transmission of the sunnah through the ʿamal of the common people of Madinah, as favoured by Mālik:

‘There are cases which I could mention where the great mass (ʿāmma) violates a prohibition of the Prophet. In these questions one has to follow the sunna from the Prophet and the forbears: his Companions and the fuqahā’.’[81]

Thus in Abū Yūsuf’s formulation, the fuqahā (legal scholars) are the proper conduit for the sunnah, which originates primarily in the Prophet and secondarily in the Companions.[82] His extensive narration of the practice of Ibrāhīm, the successor faqīh par excellence for the early Hanafī school, shows that he did accept some kind of role for his ‘informal’ authority in the sunnah. This was, however, tempered by the increasing requirement for adducing standardised discrete reports in order to establish rulings arising from polemical discussion with representatives of the jurisprudential perspectives associated with Mālik and al-Shāfi’ī. The result of this was a synthesis in which Abū Yūsuf demanded ‘well attested traditions’ and conceptualised the sunnah as ‘ḥadīth transmitted by trustworthy people and supported by those noted for their fiqh (legal understanding).’[83] Overall then, it seems that while the standards for the transmission of the ḥadīth required to authenticate the sunnah were put on a trajectory of increasing rigour into the 3rd/9th and 4th/10th centuries, Abū Yūsuf left the possibility open for the partly practice-based understanding of the sunnah by fuqahā authorities, such as Ibrāhīm, to inform the use of these formal reports within the ijtihād of the school’s jurists.[84]

In regard to ijmā’ (consensus), we can state that the development of its legal usage between Ibrāhīm al-Nakhaʿī and the early Hanafī school is fairly unproblematic and can be seen to issue from its retrospective character. Living at an earlier date and being more geographically confined, Ibrāhīm’s concept of consensus is mainly limited to that of the companions. For instance he states in regard to certain ritual practices, ‘The companions of Muḥammad never had consensus (lam yajtamiʿ) like they had consensus upon…’[85] It is not surprising that Ibrāhīm, being himself within the generation of successors, was not able to refer to the agreement of its scholars on any particular issue.

The doctrine of the early Ḥanafī school in regard to ijmā’ makes reference to the ‘consensus of scholars in all countries’[86] and thus is essentially identical to its classical formulation.[87] It seems that with the effective ending of the generation of the successors, it was possible to extend the idea of the consensus of the companions, inherited from Ibrāhīm and his contemporaries. Furthermore, the increasing cross-fertilisation of fiqh between different regional centres in the Abbasid era that began in the 2nd/8th century, typified by al-Shaibānī’s trip to Madinah to narrate the Muwaṭṭa’ from Mālik, was instrumental in making possible a judgement of those issues he termed ‘agreed upon by the legal scholars with no difference of opinion.’[88]

Finally we come to the use of ra’y within the legal methodology of Ibrāhīm al-Nakhaʿī. It has been noted in the literature that while this term is a generic expression for an individual’s opinion or reasoning, in early Islamic legal usage, it can also cover a range of finer meanings: qiyās (analogy), istiḥsān (breach of strict analogy to achieve substantive justice), as well as acting as a synonym for ijtihād.[89] Given this terminological indeterminacy, it is unsurprising that a number of these categories were subsumed under Ibrāhīm’s ra’y, a point that can be missed if judging the early sources by the later, narrower and almost pejorative sense of the word.[90]

The primary meaning, closest to the word’s semantic root, usually denotes ruling upon a legal issue according to one’s own judgment and without a set method, when failing to find anything appropriate in the authoritative primary sources (the Qur’ān and sunnah). An apparent example of this sort of reasoning by Ibrāhīm is the verdict: ‘If pressed fruit juice is cooked and two-thirds of it evaporates leaving a third before it ferments, there is no harm in it.’[91] Another reads: ‘The fingers of the hands and [the toes] of the feet are the same, for each digit there is a tenth of the [full] compensatory payment.’[92] Both of these cases are posited on a kind of numerical rationale, the second approaching close to a kind of analogy between number of fingers and value. However, this type of ra’y was open to the criticism of arbitrariness and was eventually to be largely replaced in the Ḥanafī school by more systematic qiyās according to clearly defined rules.[93] Ibrāhīm was one of the pioneers of this method, as can be seen from the following report from Ḥammād:

‘Ibrāhīm said, “There is no harm in wiping with a napkin after ablution.” [Ḥammād said] So Ibrāhīm made an analogy (fajā’ Ibrāhīm biqiyās). He said to me, “Is it your opinion (ara’aita), that were you to take a bath on a cold night, you would wait until you dried?”’[94]

This example also, however, highlights the informality of some of the qiyās that Ibrāhīm undertook, as unlike the standard formula that was to be used later, the aṣl (original case) that he makes an analogy upon here is not a source text (naṣṣ), but itself a proposition of ra’y.[95] Nevertheless, the extent to which his openness to making analogy contributed to the methodology of the early Ḥanafī school is manifest in al-Shāfiʿī’s comment that the Iraqians were the ‘adherents of qiyās.’[96] The increasingly complex and rigorous application of qiyās in the 2nd/8th century, arguably also presented the danger of losing sight of the justice that was held to be the hallmark of the law. For this reason, the Ḥanafī school formally introduced the concept of istiḥsān, in which, at juristic discretion, the logical consequences of strict analogy could be ignored for a more equitable outcome.[97] In doing so, however, it seems that they may have given a formal justification for a legal tool that Ibrāhīm had already used implicitly.

When the different aspects of Ibrāhīm al-Nakhaʿī’s legal methodology are appraised, as we have endeavoured to do within this study, the meaning of ra’y that comes to the fore is the activity later termed ijtihād. The striving to derive juristic rulings for new cases not covered by currently existing sources was essential for Ibrāhīm’s context of Kufa – a central hub of the dynamic and evolving Ummayad Iraqian society.[98] He found that through the use of specific tools, such as qiyās, he was able to induce general propositions that could be applied consistently to derive a coherent body of rulings. For instance, he used the Qur’ānic principle that the liability of a slave is half that of a free person in connection with a wide range of other legal topics.[99] In this regard, Ansari has stated:

‘The main achievement of Ibrāhīm was that he surveyed the entire field of legal doctrines and in so doing he formulated the tentative framework of Kufian doctrines. Thanks to his interest in the positive doctrines as a whole rather than merely in parts of it, he brought about greater coherence and systematic consistency.’[100]

To draw all the findings of the above investigation together is no mean task, so we will suffice ourselves with trying to resolve the issue of where to situate Ibrāhīm al-Nakhaʿī in relation to the early Ḥanafī school. We feel that given the evidence adduced, we can state that a large corpus of Ibrāhīm’s doctrine is extant within the redacted texts of the school and presents the intellectual profile of an influential Kufan jurist from the generation of the successors in the first century of Islam. While his contribution to both Ḥanafī positive law and legal theory was profound, it was certainly not as all encompassing as Shāh Walī Allah has argued. Instead, we have uncovered that across the whole range of the sources and methods of Islamic law: from exegesis of the Qur’an and transmission of the sunnah; to determining ijmāʿ and carrying out qiyās and ijtihād; the changing juristic context within which the early Ḥanafī school operated led it to accept and develop certain aspects of Ibrāhīm’s legacy, while rejecting and curtailing others. The pattern which emerges, therefore, is one of a dynamic and creative interaction, which tended towards a formalisation of his implicit methodology into distinct rules for referring to standardised sources of authority and deriving legal verdicts.

Ramon Harvey

 

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[1]For instance see Ḥasan, M, [in al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, (Turath, 2006), Introduction, p. XXXIII-IV.

[2] Shāh Walī Allah, The Conclusive Argument from God (Ḥujjat Allah al-Bālighah), trans. Marcia K. Hermansen, (E. J. Brill, 1996), p. 431-2.

[3] Schacht, J, The Origins of Muhammadan Jurisprudence, (Oxford University Press, 1950), p. 236.

[4] Ibid, p. 87; 235; 270. It should be noted that C. Melchert in [How anafism Came to Originate in Kufa and Traditionalism in Medina, (Islamic Law and Society, v. 6. n. 3, 1999) p. 318-47] argues from 3rd century biographical dictionaries (tabaqāt) that Ḥanafism was originally a phenomenon of Baghdad and came to be mythically seen as having originated in Kufa. The evidence that he presents, however, aside from its inconclusive nature, seems to be explainable from the traditional accounts of the lives of Abū Ḥanifah and his companions. For instance, Abū Ḥanifah is said to have taught in prison in Baghdad for the last four years of his life, while it is known that Abū Yūsuf and al-Shaibānī were later appointed as official Qāḍis by the Abbasid Caliphs, who were based in the city. [See Hussain, M, Imam Abu Hanifah Life and Works, English Translation of Shibli Nuʿmani’s Sirat-i-Nuʿman, (Darul Ishaat, 2000), p. 39; 211; 215.] Notwithstanding the possibility of a later transplant into Baghdad then, the background of the fiqh of the early Ḥanafī school was fundamentally Kufan, as we shall see.

[5] See Ansari, Z. The Early Development of Islamic Fiqh in Kufah with special reference to the works of Abu Yusuf and Shaybani, (McGill University PhD Thesis, 1966) p. 13-119. Ansari’s account, although written in the modern academic style, generally remains close to that found in classical Islamic texts.

[6] It should be noted that scholarship on these matters has involved a great deal of counter-refutation between the various positions, which is impossible to fully analyse here given the subsidiary nature of the subject in this study. In order to give a coherent account of what is at stake, therefore, it has been decided that the discourses of the two main camps, traditional and sceptical, will be broached before looking at the possibility of credibly going beyond the dichotomy between them. This does, however, mean that the positions held will be pared down to their fundamentals, with an attendant loss of some nuances. For a detailed analysis of the scholarly debate over hadīth see Berg, H, The Development of Exegesis in Early Islam, (Curzon Press, 2000), p. 6-64.

[7] Berg, H, The Development of Exegesis in Early Islam, (Curzon Press, 2000), p. 7.

[8] For a book-length treatment of the traditional Islamic methods for dealing with this problem, see Kamali, M, A Textbook of adīth Studies, (The Islamic Foundation, 2005).

[9] Al-Jaṣṣāṣ, al-Fuṣūl fī al-Uṣūl, (Kuwait, 1994), v. 2, p. 148.

[10] Kamali, M, Principles of Islamic Jurisprudence, (The Islamic Texts Society, 2003), p. 96-7.

[11] It should be noted that the above, just like the literature expressly critical of the validity of the isnād system, is dealing with the historical status of accounts determined authentic by the traditional science of adīth criticism. It is presumed that so-called weak reports would carry even less weight, if any, in this regard.

[12] See Schacht, J, The Origins of Muhammadan Jurisprudence, p. 3-5; Calder, N, Studies in Early Muslim Jurisprudence, (Oxford University Press, 1993), p. 236-7.

[13] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 163-72.

[14] Ibid, p. 156-7.

[15] Ibid, p. 11-20.

[16] Ibid, p. 4-5; 156-7.

[17] Ibid, p. 4.

[18] A similar criticism was made very early by J. W. Fück, an expert on Ibn ‘Ishāq, who in reviewing Schacht’s thesis argued that he made a schema and then declared inauthentic that which did not fit. [in Motzki, H, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, (Brill, 2002), p. 28-9.

[19] See Al-Azami, M, On Schacht’s Origins of Muhammadan Jurisprudence, (The Oxford Centre for Islamic Studies and The Islamic Texts Society, 1996).

[20] Herbert Berg views Calder’s analysis of early Islamic jurisprudence as reflecting the logical conclusion of a thorough-going scepticism about the authenticity of isnāds. Whereas Schacht at least credited figures such as al-Shāfiʿī and al-Shaibānī as being the genuine authors of the works ascribed to them, Calder sees the entire juristic literature, at least until later datable redactions in the 3rd/9th and 4th/10th centuries, as exhibiting signs of organic growth and not reliably attributable to individuals. His opinion in regard to isnāds seems to be that they are almost entirely a backwardly-projected phenomenon, as he describes the entire corpus present in juristic writings as having been invented (or discovered) during a process of mutual isnād criticism at the end of the 3rd century. [See Calder, N, Studies in Early Muslim Jurisprudence, p. 236-7 (in regard to isnāds). Also Berg, H, The Development of Exegesis in Early Islam, p. 45-8; (p. 64 n. 174 for criticism of Calder’s approach)].

[21] Berg, H, The Development of Exegesis in Early Islam, p. 26.

[22] Motzki, H, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, p. 94.

[23] The six internal criteria for authenticity are all concerned with the manner in which Ibn Juraij puts forward his tradition of ʿAtā’ and whether there are stylistic features which make a genuine personal profile of both figures apparent and therefore mitigate against the projecting of his doctrine upon his source. They are categorised as follows: the existence of his own legal opinions; his commentary, including additions and contradictions, on the corpus of his teacher’s work; indirect traditions of his teacher (taken from a third source); uncertainties about what his teacher meant in certain cases; the recording of slightly variant traditions – showing a desire for exactitude in transmission; and the presence of comments that demonstrate weakness in some of his teacher’s opinions and reasoning. [Ibid, p. 83-94.] For the reason why they are less useful in determining the state of Ḥammād’s narrations from Ibrāhīm, see below.

[24] Ibid, p. 77-80.

[25] Ibid, p. 94. Also see p. 253.

[26] Berg has, however, levelled two criticisms at Motski’s approach, stating that his ‘comparison on the basis of isnāds do seem to preclude systematic fabrication. But it is precisely the isnāds that sceptics would say have been fabricated and so should not be the basis of any comparison. Moreover, Motzki’s observed “consistent individual character” could be a product of separate fabrications: systemic fabrication need not be systematic fabrication.’ [Berg, H, The Development of Exegesis in Early Islam, p. 38.] Berg’s comments can be largely answered with reference to what has been described of Motzki’s methodology above. He actually makes relatively little use of isnād comparison in his work on early Makkan jurisprudence and, when he does, it is to give some indication as to whether the pattern revealed is consistent with forgery. It simply does not follow from the possibility of isnād fabrication, that they could not reveal internal patterns that indicate this very state of affairs. In terms of the second contention involving multiple or systemic fabrication, it should be remembered that Motzki is generally careful to qualify his findings as essentially a convincing model. If someone is interested in demonstrating fabrication in the particular case that he cites, they are required to produce a more convincing alternative to Motzki’s explanation of the observed phenomenon.

[27] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 236.

[28] Ibid, p. 237.

[29] p. 238.

[30] Ibid, p. 238.

[31] The quote he cites is: ‘When he [Ḥammād] decided according to his own opinion (ra’y), he was generally right, but when he related traditions on the authority of others than Ibrāhīm, he made mistakes.’ [Ibid, p. 239.] While it is clear why Schacht used this quote which seems to identify Ḥammād’s opinion with traditions from Ibrāhīm, it is certain that Ibn Saʿd merely meant that he was more accurate with the adīth that he received from this teacher than with others, a fact which is confirmed by the explicit mention that Ḥammād wrote down traditions from Ibrāhīm [see Ibn Sa’d, al-Ṭabaqat al-Kabīr, (Leiden: Brill, 1904-40), v. 6 p. 190].

[32] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 235.

[33] Motzki, H, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, p. 95.

[34] As well as the two Āthār texts and the Muwaṭṭa’ of al-Shaibānī, we will be able to make reference to the Muṣannaf of ʿAbd al-Razzāk.

[35] Calder, N, Studies in Early Muslim Jurisprudence, p. 39-49.

[36] The Āthār of al-Shaibānī is particularly appropriate for demonstrating this argument, as al-Shaibānī gives a direct comment following each report, a feature not present in the Āthār of Abū Yūsuf and only made in relation to the opinion of Mālik in the Muwaṭṭa’.

[37]See al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, Appendix I, p. 541-557. The editor of this English translation of al-Shaibānī’s al-Āthār has listed over one hundred occasions within the text where Abū Ḥanīfah or sometimes al-Shaibānī through a different chain, has narrated the verdict of Ibrāhīm, or one of the companions or successors and then differed with it. Rarer, but nevertheless present within these, are occasions where al-Shaibānī differs with Abū Ḥanīfah directly.

[38] See Hallaq, W, Authority, continuity, and change in Islamic law, (Cambridge University Press, 2001), p. 27-31.

[39] From reading the isnāds in the sources mentioned above, it is obvious that Ḥammād refers to Ibrāhīm in over 90% of narrations. Saʿīd is mentioned from him in al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 87, 110, 117, 159, 323, 334, 353, 822 (not exhaustive) and Abū Yūsuf, Kitāb al-Āthār, (al-Qahirah: Maṭbaʿat al-Istiqāmah, 1936) n. 12, 24, 154, 457 (not exhaustive).

[40] See al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, follow-on questions: n. 6, 139, 158; indirect questions: n. 60, 79, 114, 131, 169, 797 etc.

[41] For instance, from a sample of the first 200 instances in which Ḥammād narrates from Ibrāhīm in Abū Yūsuf’s Kitāb al-Āthār, approximately 60% feature Ibrāhīm as the ultimate mentioned authority, which as we will see later, is possibly, but not necessarily ra’y; 22% are mursal, in which Ibrāhīm usually narrates from a companion that he did not meet; while the remaining are continuous narrations reaching to a successor, companion or the Prophet. It must be asked why someone seeking to pass their own doctrine as coming from a higher authority, as Ḥammād is accused in regard to Ibrāhīm , would simultaneously cite so many mursal hadīth from this very person, alongside fuller isnāds. For the moment, it suffices to note that this rather seems to show the pattern of someone who is honest in transmitting what they have received, while the issue of Ibrāhīm’s use of ra’y and adīth will be tackled in reviewing his legal methodology.

[42] See ʿAbd al-Razzāk, al-Muannaf, (Beirut: al-Majlis al-ʿIlmī, 1970) n. 116, 775, 1766 (via Ḥammād), 1777, 1889, 3021, 3624, 3700, 4882, 5665, 6118, 7158, 7705, 10166, 10152, 12748, 13181, 14400, 14444, 14457, 15008, 15016, 15109, 15174, 16019, 16050, 16239, 16332, 20366.

[43] 12 of these reports were reported to ʿAbd al-Razzāk from al-Thaurī (d. 161/778), a Kufan, who is known to have studied in the circle of both Ḥammād and other prominent Kufan jurists, before going into exile in Yemen for political reasons. [See Raddatz, H.P. “Sufyān al- T̲H̲awrī.” Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2009. Brill Online. School of Oriental and African Studies (SOAS). 26 February 2009 http://www.brillonline.nl/subscriber/entry?entry=islam_SIM-7130.] This fact both adds historical plausibility to the real transmission of the isnāds that he narrates, as well as providing a compelling source for Ibrāhīm’s doctrine that is independent of any possible school bias.

[44] For instance, there is a striking similarity between al-Muannaf n. 775 and 1777 with Abū Yūsuf, Kitāb al-Āthār n. 73 and 86 respectively. Also al-Muannaf n. 3021 mentions a report from both Ibrāhīm and Saʿīd b. Jubair, while Abū Yūsuf, Kitāb al-Āthār n. 12 mentions them both holding the same opinion in regard to a different matter.

[45] ʿAbd al-Razzāk, al-Muannaf, n. 13181 and 14444.

[46] See al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 828, in which Abū Ḥanīfah narrates a report from Qatādah.

[47] For instance in al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 316, Abū Ḥanīfah narrates from ʿAmr b. Jubair on the authority of Ibrāhīm on a matter regarding the giving of zakāh.

[48] Schacht, for instance, writes that ‘apart from the most elementary rules, norms derived from the Koran were introduced into Muhammadan law almost invariably at a secondary stage.’ [Schacht, J, The Origins of Muhammadan Jurisprudence, p. 224.] However, as our discussion will show, it was the basic Qur’ānic rules and norms that were the driving force for the elaboration of the unnah and the development of fiq through the exercise of ijtihād.

[49] Ansari, Z, The Contribution of the Qur’ān and the Prophet to the Development of Islamic Fiqh, in Journal of Islamic Studies, 3:2 (1992), p. 159.

[50] Al-Shaibānī, The Muwatta of Imam Muhammad, (Turath, 2004), n. 606.

[51] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 629.

[52] Ibid, n. 710.

[53] Ibid, n. 568.

[54] Although, as we have seen, differing with the verdict of Ibrahīm is by no means unheard of in early Ḥanafī texts, there seems to be agreement on matters regarding the Qur’ān.

[55] Al-Shaibānī, The Muwatta of Imam Muhammad, n. 64.

[56] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, Introduction p. LXV; Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, (Arabica, T. 19, F. 3, Oct. 1972), p. 296.

[57] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 431.

[58] Hallaq, W, A History of Islamic Legal Theories, (Cambridge University Press, 1997), p. 9.

[59] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 639.

[60] Ibid, n. 479. There seems no reason to doubt the attribution of this opinion to Ibn Masʿūd, given the fact that Ibrāhīm was content to declare a verse abrogated without mentioning a companion for authority and that such an issue would have arisen early in the life of the community. Ansari writes in regard to Ibrāhīm , ‘His references suggest that the theory of repeal (naskh) was well-known, was generally accepted, and not infrequently used.’ [Ansari, Z. The Early Development of Islamic Fiqh in Kufah with special reference to the works of Abu Yusuf and Shaybani, p. 98.]

[61] Ḥasan, M, [in al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, Introduction, p. XXXV, quoted from al-Ṣaimarī, Manāqib al-Imām Abī anīfah, on the authority of ʿAlī b. Ṣāliḥ, a Shiʿāh contemporary, whose differing sectarian affiliation, along with the content of this report adds plausibility in this case as to its authenticity.

[62] Ibid, n. 396.

[63] Ibid, n. 721.

[64] Ibid, n. 641.

[65] See Al-Jaṣṣāṣ, al-Fuṣūl fī al-Uṣūl, v. 1.

[66] See Schacht, J, The Origins of Muhammadan Jurisprudence, p. 73-75 (in regard to his opinions on the Iraqian concept of sunnah.)

[67] Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 259-282.

[68] Dutton, Y, The Origins of Islamic Law, (Curzon Press, 1999), p. 179.

[69] [Brunschvig, Polémiques, p. 413, quoted from Dutton, Y, The Origins of Islamic Law, p. 5.] This quote is taken to mean, following Dutton, that there are alternative models in which to conceptualise the relationship between the sources of Islamic law and the early development of fiqh than that utilised by Shāfiʿī, without necessarily denying validity to his approach.

[70] A sample of the sort of ratio that can be found has already been presented in footnote 41.

[71] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 232.

[72] See Djaït, Hichem. “al- Kūfa.” Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2009. Brill Online. School of Oriental and African Studies (SOAS). 01 March 2009 http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0536; Vadet, J.-C. “Ibn Masʿūd , ʿAbd Allāh b. G̲h̲āfil b. Ḥabīb … b. Hud̲h̲ayl.” Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2009. Brill Online. School of Oriental and African Studies (SOAS). 01 March 2009 http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0338.

[73] Sezgin, F, Geschichte des arabischen Schrifttums, (Leiden: E. J. Brill, 1967-84), v. 1, p. 403.

[74] In fact, the part of Schacht’s argument in which he specifies that the legal authority of Ibn Masʿūd’s anonymous companions, whom are only designated in relation to him, nonetheless pre-dates his own authority, is absurd. [See Schacht, J, The Origins of Muhammadan Jurisprudence, p. 232.]  Surely they could only have received this appellation because their authority was derived from association with him.

[75] Ibn Sa’d, al-Ṭabaqat al-Kabīr, v. 5, p. 272.

[76] Dutton, Y, The Origins of Islamic Law, p. 179.

[77]Kamali, M, Principles of Islamic Jurisprudence, p. 108-10. This approach is shared by the Mālikī school following their eponym’s practice in his Muwaṭṭa’ [Dutton, Y, The Origins of Islamic Law, p. 17.]

[78] Sezgin, F, Geschichte des Arabischen Schrifttums, v. 1, p. 403.

[79] Rahman, F, Islam, (University of Chicago Press, 1979), p. 51-64. However, it should be noted that in this matter we do not accept Rahman’s inference from the fact that sunnah could be transmitted in an informal fashion by individuals with juristic interests, that hadīth was not memorised, recorded and narrated from the earliest days, as intimated in Dutton, Y, The Origins of Islamic Law, p. 18-20; 179-80. Also see Schoeler, G, The Oral and the Written in Early Islam, (Routledge, 2006) p. 42, in which he writes about the pre and early-Islamic specialised job of the transmitter of poetry called the rāwī, who would memorise, record and narrate for a specific poet. If it is accepted that the sayings of the Prophet and his companions became more valuable to the early Islamic community than poetry, it is clear that the skills required for the role of the muhaddith were already well known.

[80] Tr. I, p. 11, [Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 275.]

[81] Tr. I, p. 11, [Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 276.]

[82]The reasoning behind the Ḥanafī school’s allocation of the status of sunnah to the actions of the companions, particularly the first four Caliphs and those deemed to be particularly knowledgeable in fiqh, reflects the opinion that their intimate knowledge of the Prophet’s life gave a unique insight into which practices should be taken as the normative sunnah. [Also see Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 280-1.]

[83] Ibid, p. 281-2.

[84] The Sharh Maʿānī al-Āthār of al-Tahawī (d. 321/933) provides an excellent example of this development, for while the number of narrations from Ibrāhīm is negligible, the influence of the Kufan transmission of sunnah is apparent in the doctrinal positions taken. While Hallaq [Authority, continuity, and change in Islamic law, p. 27-31] has referred to this kind of phenomenon as part of a process of constructing authority, it rather seems more like a real shift in authority in the direction of increasingly text-based jurisprudence from the time of Abū Ḥanīfah onwards.

[85] Abū Yūsuf, Kitāb al-Āthār, n. 98.

[86] Tr. IV, p. 256, [Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 285.]

[87] Kamali, M, Principles of Islamic Jurisprudence, p. 228.

[88] Al-Shaibānī, Kitāb al-ujjah ʿalā ahl al-Madīnah, p. 161, [Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 287.] Interestingly enough, Ansari thinks that this expression itself was derived from his contact with Mālik.

[89] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 98-9.

[90] See [Melchert, C, How anafism Came to Originate in Kufa and Traditionalism in Medina, p. 329-333] for how the shift in the connotation of ra’y when applied to Kufa can be traced in 3rd century abaqāt literature.

[91] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 836.

[92] Al-Shaibānī, The Kitāb al-Āthār of Imām Abū anīfah, n. 560.

[93] Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 290-2.

[94] Abū Yūsuf, Kitāb al-Āthār, n. 115.

[95] For the classical method of qiyās, see Kamali, M, Principles of Islamic Jurisprudence, p. 267.

[96] Schacht, J, The Origins of Muhammadan Jurisprudence, p. 231.

[97] Ansari. Z, Islamic juristic terminology before Shāfiʿī: a semantic analysis with special reference to Kūfa, p. 292-4.

[98] Djaït, Hichem. “al- Kūfa.” Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2009. Brill Online. School of Oriental and African Studies (SOAS). 01 March 2009 http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0536

[99] Ibid, 106-7.

[100] Ansari, Z. The Early Development of Islamic Fiqh in Kufah with special reference to the works of Abu Yusuf and Shaybani, p. 106.