The Ḥanafīs

( The Ḥanafīs )

The Ḥanafī jurists are men of exactitude and of legal reasoning (raʼy) and of quick intelligence, and good is to be looked for from such men — provided they are kept clear of contrivance and of the legal devices (ḥiyal) for usury and for voiding the alms-tax, (1) and of pecking at the prayer, and of acting upon those cases in which they hear the prophetic texts run against them. (1) So, man: leave what makes you doubt for what does not make you doubt, and take precaution for your religion, and let your ambition not be to give judgement by your own school; for whoever guards himself against what is doubtful has kept his religion and his honour clear. If you act by your school in purification and in waters and in the witr prayer and in the sacrifice, then you are what you are; but if

— Notes —

[13] upon a fixed principle. Hence Mālik said: “The repentance of the zindīq is not recognized; he is put to death even if he makes a display of repentance, and his repentance is not accepted.” End. This he took from the outward sense of the word of God Most High — “Those who believed, then disbelieved, then believed, then disbelieved, then increased in unbelief: God was never one to forgive them” — and from the outward sense of the hadith concerning one who changes his religion, and from what is transmitted from Abū Mūsā, even though it goes against the position of ʻUmar and of those Companions who agreed with him, may God be pleased with them. And the Muslims have proceeded to adopt Mālik's word whenever the affair of the anarchic heretics grew rank and it was not possible to repel their evils by the word of the remaining imams: as they did at Baghdād in the days of al-Mustaẓhir bi-Allāh the ʻAbbāsid in the case of the Qarāmiṭah, and in Egypt after the passing of the ʻUbaydī state in the case of the hangers-on of the Bāṭinīyah, where the interest of the Muslims made it obligatory to adopt Mālik's word. Among the imams of the Maghrib, Baqī ibn Makhlad and Ibn al-Mawwāz differed from him and followed the remaining imams. And some make jibes at the Mālikī masters over this very question, which the interest of the Muslims may make it obligatory to adopt; and such jibing and innuendo is not fitting for the people of learning. In Intiṣār al-faqīr al-sālik li-madhhab al-imām al-kabīr Mālik: “I once heard a man fall into grievous speech touching prophecy, and I wished to bring him before the Shāfiʻī chief judge” — he means Ibn Ḥajar — “and I told him the story, and he said to me: Take him to the Mālikīs and hang it on Mālik's neck. Partisanship carried him to going against his own school; for it was his duty to hear the suit and not to expose the man to death by a school whose error he believes in, believing his own school sound in accepting repentance, while Mālik's school does not accept it. So he exposed the man to death wrongfully upon his own belief, and behaved ill toward Mālik.” End. And whoever had any tenderness in his religion used to be greatly afraid of the Mālikī judges in the days when the judgeship was in their hands.

[14] (1) Contrivance that issues in the cancelling of a ruling within the very legislating of rulings proceeds from none but a man whose religion is weak and whose certainty is diseased. But the seeking of a way out of straits without voiding a right or making good a falsehood, by delicate expedients that do not collide with the texts — that is what God and His Messenger have recommended, and what the imams of old and those who came after them have practised; and the setting out of the ways of it argues excellence and force of intelligence, on condition that it does not lead to what we have said above. The boldest of those who play at jurisprudence in extending contrivance are those most constantly attached to the judgeship. Among the forms of blameworthy contrivance is the giving of fatwās by anomalous opinions unsupported by proofs, and by weak transmissions that cannot stand up before criticism, with all their counterfeit gilding and ornament; and whoever falls into this out of want of scruple — God is his reckoner. As for what is imputed to Abū Yūsuf, that he came into connection with al-Rashīd by legal devices with which he answered him, so that al-Rashīd appointed him to the judgeship — that is a lie fabricated against him, like Mālik's singling out al-Rashīd with dispensations; for he held the judgeship before al-Rashīd, in the reign of al-Hādī, and continued in it in al-Rashīd's time, as al-Samʻānī and others have mentioned; and favouritism was no part of his character, as appears from his Kitāb al-kharāj and from his well-known conduct. Al-Dhahabī composed a separate fascicle on his life in which he praises his learning and his abstinence and his scruple, and extols him — and this though al-Dhahabī is known for frugality in the biographies of such men. As for what al-ʻAbbās ibn Muṣʻab mentioned in the History of the Men of Marw, where he speaks of ʻAqīl ibn ʻAnbasah: “Yūsuf ibn ʻĪsā related to us, from ʻAqīl ibn ʻAnbasah, who said: I said to Muḥammad ibn al-Ḥasan, I have property, and the alms-tax has not fallen due upon me for years. He said, How is this? I said: When the property is with me for less than a year, then before the year turns I make a gift of it to my child. He said: You are indeed a jurist!” End. — that is to be rejected, because Ibn ʻAnbasah is unknown, recognized by the fellows neither for jurisprudence nor for transmission; and there is nothing of this sort in Muḥammad's books, he being the very man who says of the ʻīnah sale: “This, to my mind, is blameworthy as the mountains are great.” And they have construed Abū Yūsuf's permitting of this sale as the case in which the object does not return to its owner, and so the two of them came

[15] to an agreement on the question. And al-Dhahabī said, in a fascicle he composed on the life of Muḥammad ibn al-Ḥasan, by way of al-Ṭaḥāwī from Aḥmad ibn Abī ʻImrān from Muḥammad ibn Samāʻah, that he said: I heard Muḥammad ibn al-Ḥasan say: “This book” — he means the Book of Legal Devices — “is not one of our books; it was merely thrown in among them.” End. He means that a book on legal devices was passing from hand to hand among those of little scruple in that age, and the author's name was not mentioned in the book, so they supposed it to be one of the books of Abū Ḥanīfah's fellows, and it is not so.

[15] (1) It is as though he were alluding to what Ibn Abī Shaybah criticized in Abū Ḥanīfah, in those few enumerated questions, in most of which what has come down falls under the category of conflicting hadith, so that what weighs the heavier with one man does not weigh the heavier with another, because of the difference in the imams' first principles in that matter. On the sifting of those questions there are books of their own, to be consulted. The fineness of the jurists' apprehensions may be hidden from the transmitters, who are then precipitate in judgement; so this subject requires exactness in the science of disagreement and disputation and in the roots of jurisprudence (uṣūl al-fiqh), together with a wide command of the hadiths of legal rulings and their defects (ʻilal), and of the verses of legal rulings and their exegesis, and of the imams' differences over the conditions for accepting reports, and of the modes of preferring one report over another, and the like; and the man on foot, in all this, has no right to overstep his station. Al-Najm al-Ṭūfī the Ḥanbalī said in his commentary on the Mukhtaṣar al-Rawḍah: “Abū Ḥanīfah assuredly did not oppose the sunnah out of obstinacy; in what he did oppose of it he opposed by independent judgement (ijtihād), upon clear proofs and sound, manifest indications; and his proofs are extant among men, and it is seldom that his opponents get the better of them.” End.