An Introduction to Islamic Jurisprudence with Special Reference to the Hanafi School of Law
Islamic society is unique among the societies in the pre-modern times in that it followed the principle of rule of law and because law in Islam evolved independent of the political authority. Before the Islamic revolution, Arab customary law governed the simple matters of tribal and nomadic existence of the desert bedouins. Pre-Islamic Arabia was however located at the junction of the trade highways connecting the major centres of the civilized world and was no doubt familiar with the legal cultures of these centres encompassing all the complexities associated with a sedentary society and its hierarchical nature. These influences went into making of Islamic law the basis of which undoubtedly was derived ultimately from the Quran and the Sunnah. Islam was an innovation due to its reforming values, which stood for a break from the vices of the past, but the religion also represented continuity with the past in that it absorbed socio-political, religious and legal concepts of the Middle East in general and Arabia in particular. Islamic law was not an exception to this trend as it continued several legal practices of the Past that were not contradictory to the principles of the Quran which found their way into the body of law because of the Quran’s silence or absence of objection to them.
Emergence of Schools of law
The earliest legal schools came into being as the circles of legal scholars who were authorities on Quran and Hadith and engaged in legal discussions and debates. Most of the scholars had their personal schools which flourished in major cities of Medina, Basra, Kufa, Damascus and Baghdad. It was common among the scholars of law to study under several masters and then combine the methodology and legal doctrines of the masters in their own legal practice. These students in turn became masters of law themselves and were followed by others who surrounded them and thus emerged newer schools of law. Most of these schools however failed to flourish after the death of their eponymous founder except for the four schools of law now extant: Hanafi, Maliki, Shafii and Hanbali.
Wael b. Hallaq suggests that it was their success in synthesizing the traditionalist and rationalist approaches, apart from government patronage (they had earned because of their general popularity among the masses), that translated into their survival where several other Schools of law failed to survive. It is imperative to remember that though the names of the Schools suggest that they were founded singlehandedly by the leaders after whom they are named, in reality the codification of positive law and establishment of methodology was the work of several generations of legal scholars and not of a single individual. The Imams of all the four schools were heavily indebted to their predecessors for their legal theories. Their followers as well derived from a large number of legal sources, including the legal doctrines of those legal masters who are now identified with Schools other than theirs. Thus all the four surviving Schools were indebted to the legal scholars who came before their eponymous imams as well as to each other during the phase of their initial development. A process evidenced in the early era of the development one of the major Schools, the Hanafi School of law.
Development of the Hanafi School of law
Hanafi School of law is named after Numan bin Thabit ibn-Zuta ibn-Marzuban (699-767 CE) popularly known as Imam Abu Hanifa. The history of evolution of the School based in Kufa however spans a much greater time period than the Imam’s life. The first influential Jurists of the Kufan School were Ibrahim al Nakhai (d. 713 CE), al-Shabi’I (d.723 CE) and Hammad b. Abi Suleiman (d. 738). Although their major works are lost, they undoubtedly were important formative influences on the Kufan legal theory and practice which later evolved into the Hanafi madhab. They are recognized as the main transmitters of the two books of Athar in the Hanafi Schools though the modern scholarship suggests that their contribution was far greater than mere transmission of Hadith. Imam Abu Hanifa was also indebted for his legal theories to Awzai, Imam Malik and Imam Baqir under whom he studied law. There are hardly any surviving books of Imam Abu Hanifa whose legal doctrines have reached us through the work of his successors Abu Yusuf (d. 798) and Muhammad al Shaybani (d. 804) both of whom, because of their extensive works, are considered to be the real creators of the Hanafi School. Abu Yusuf became the chief Qadi of Baghdad during the reign of Harun al Rashid and produced important work on taxation on the Caliph’s request. Muhammad al-Shaybani’s major work, Kitab al Siyar (Book of War) is one of the earliest writings on international law.
The earliest jurists compiled the transmitted traditions for legal use and authored their independent opinions. Working upon these foundational sources, later jurists produced more systematic and practically applicable works. The initial texts became the subject of commentaries and super-commentaries. Several works on Usul al fiqh and furu al fiqh, compendia and collection of fatwas were thus produced over time.
Hanafi legal methodology and the approach of the School to Usul-al-Fiqh
The legal rulings of all the Islamic Schools of law are based on the Quranic principles either in letter or in spirit or both. The Quran contains fairly substantial legislative material covering inheritance, marriage, divorce, laws of war, and several other civil and criminal issues. To solve further problems jurists resorted to the practices and words of the Prophet as contained in his Sunnah and after him, to the legal verdicts of those Companions who had been close enough to the Prophet to know what the Prophet had done had he been present at the moment. The Sunnah of the Prophet and the Companions was seen to emanate from the Quran itself as it was the principles of the Quran that they adopted and emulated in their lives. The Sunnah thus provided with valuable precedents in the legal practice. In an environment when a large number of Ahadith were being fabricated, the method for establishing the authenticity of a Hadith as adopted by Imam Abu Hanifa and other leading scholars required dual check, first regarding the credibility, experience, memory and righteousness of the transmitters transmitting in an unbroken chain and second regarding the content of the Hadith.
The Quran and Sunnah however did not offer the solution to every specific case that ever came before the community. The jurists in that case had recourse to such legal methods as Ijma (consensus) and Qiyas (analogical deduction). Ijma refers to the process of obtaining consensus regarding a particular legal problem among the Companions, their successors or all the mujtahids of any one of the future generations. A Hanafi scholar Shashi, writing in the eighth century CE, considers the consensus among few mujtahids accompanied by silence or absence of objection by all other Mujtahids a valid Ijma. The concept of Qiyas is of analogical deduction. If no direct solution is found regarding a particular case in Quran or Sunnah, the jurist identifies similar cases in these sources and if valid analogy is established between the two cases, the solution of the first case can be applied to the other. An example is that of permissibility of drinking date wine. The jurist finds out that the grape wine is prohibited because of its intoxicating affect. Since the harmful affect is also present in the date wine, it will also be prohibited as well. Apart from Ijma and Qiyas, Hanafi School introduced the concept of Istihsan (Juristic preference) as Maliki madhab introduced the method of istislah/maslah (public interest) to solve legal problems.
The concept of Istihsan
Istihsan is the method adopted by the Hanafi jurists to reach decisions on the basis of the principle of necessity. This principle was earlier equated with ray or reasoned opinion which was condemned by other scholars for they saw it as human legislation. Istihsan can be based either on consensus or the principle of necessity. For example, washing with ritually impure water would invalidate the prayer according to the decision reached at by qiyas, but istihsan does not invalidate the prayer in view of the fact that fresh, clean water is not easy to procure. Thus strict reason is abandoned in cases where it leads to nothing but hardship. Istihsan abandons the logic reached at through the method of qiyas on the principle of necessity. The acceptance of the principle of necessity is derived from and sanctioned by both the Quran and the Sunnah.