By Issam Eido
This is part one in a series of four posts on Ḥanafī criteria for using ḥadīth in the ‘courts and canons’ of early Islamic law.
In this series of four essays, I examine briefly the interpretive standards that were followed by early Ḥanafīs for analyzing, verifying, or rejecting ḥadīth. The first essay discusses the significance of ḥadīth content in constructing some non-isnād tools and the difference between the so-called “living” report and “non-living” report. The second highlights the role of courts and general afflictions (ʿumūm al-balwā) as a crucial element in building a rational method and producing legal canons (qawāʿid fiqhiyya) that help in understanding each single ruling (farʿ). In addition, the second essay traces historical waves of judgeship occupation among the major Islamic legal schools, and the significance of Ḥanafī dominance over courts in the early Islamic period in producing and using legal canons and new interpretive tools. The third essay explains the main method (what-is-the-aṣl) that was used by the first Ḥanafī generations (second-fourth/eighth-tenth century) for constructing and analyzing furūʿ, and how said method helped later in producing a number of genres such as furūq, al-ashbāh waʾl-naẓāʾir, and qawāʿid fiqhiyya. In the fourth and final essay I discuss the importance of Muḥammad ibn al-Ḥasan al-Shaybānī’s Kitāb al-Ḥujja ʿalā Ahl al-Madīna in setting up the concept of fiqh through utilizing twenty interpretive tools that help in decoding scriptural texts, in particular ḥadīth.
It has been widely accepted among western researchers that the main focus of ḥadīth criticism has always been the isnād, or the chain of narrators who transmitted the report over the course of the first three centuries of Islam (mutaqaddimūn). This claim, considering the main critical works written in the formative period by primary ḥadīth critics and collectors, Ahl al-Ḥadīth, is accurate. However, those early proponents of ḥadīth had their own justification for that method. This justification can be found in earlier works like al-Muwaṭṭaʾ, where Mālik b. Anas (d. 179/795) differentiates between two types of evidence: regional practice vs. authenticity (ʿamal vs. ṣiḥḥa), and similarly in the reasoning of Aḥmad b. Ḥanbal (d. 241/855), who detaches ʿamal from unsound ḥadīth. Later, in the works of ḥadīth scholars from the 7th/13th centuries, these practices crystalized through the well-known principle of “disassociation of practice and soundness.”
However, this prevalent method among ḥadīth scholars does not fully represent the entire spectrum of all early Muslim schools’ works, including some exceptional examples among the early proponents of ḥadīth themselves. Other schools considered isnād to be a weak tool that could not be used alone to establish rulings, regulations, or principles pertaining to theological, legal, or societal cases. Filtering ḥadīth through the lens of these schools was a complicated process which required the comprehensive eye of a specialist as opposed to a general practitioner. An analogy can be drawn to medicine where certain cases require a surgeon or a specialist as opposed to a general primary care doctor. To that end, a set of technical terms representing multiple non-isnād tools were invented by two major schools during their formative periods of development: the Ḥanafīs and the Muʿtazilites.
Among these non-isnād tools that are used for filtering ḥadīth among Ḥanafīs and the Muʿtazilites are the concept of tawātur, public reports (al-khabar al-ʿāmm), unequivocal Qur’ānic texts (al-kitāb al-ladhī lā yaḥtamil al-maʿānī), consensus, the practice of Islam’s first generation (ʿamal al-ṣadr al-awwal), reasoning (ʿaql) used with multiple adjectives: sālim (sound), ghayr muḥtamal (absolute), or mūjibāt aḥkām al-ʿaql (necessary rational conclusions), the Sunna with a couple of qualifiers such as the conventional Sunna (Sunna maʿrūfa), the unequivocal Sunna (Sunna qāṭiʿa or al-maqṭūʿ biha), the well-known Sunna (Sunna mashhūra), the agreed-upon Sunna (Sunna mujmaʿ ʿalayhā), or the established Sunna (Sunna thābita), and finally, the authoritative report (al-khabar al-ḥujja). All of these tools are used explicitly at the advent of the post-formative period (post 3rd/9th century): the universal principles of theology (uṣūl al-kalām) and the universal principles of analogy (uṣūl al-qiyās).
Although these two schools seem to have been completely aware of the content of the reports their method was not inclusive, that is, they did not apply their non-isnād tools to all reports. Their methods were confined only to reports that pertained to their area: legal and theological matters. This non-inclusive method got the critical attention of ḥadīth critics due to their (mostly Muʿtazilites) allegedly authenticating some weak or fabricated reports that do not pertain to legal and theological matters.
Consequently, the picture one can paint of the formative period is one of two major methods of managing reports: one applied a principle in which there is no association between authenticity and practice, and another applied a rule necessitating a connection between authenticity and practice or belief. Ḥadīth normativity, in both traditional and western works, mostly depicts one part of this picture, namely that ḥadīth did not receive content criticism. Yet, if we let the formative period speak for itself, a large corpus of texts demonstrates that scholars of the early period, before the canonization of both ḥadīth collections and ḥadīth criticism manuals beginning in the 5th/11th century, had engaged widely in content criticism. To that end, the main question of the formative period perhaps should be: were aḥadīth sought out to be authenticated considered living reports or non-living reports? While a living report entails both practice and authentication, a non-living report does not necessarily yield practice. By working upon reports pertaining to legal and societal issues, Ḥanafī scholars of the formative period apparently and considered them living. Conversely, concluding that a report was a non-living one meant putting said report on the shelf until someone else resurrects it.
However, considering a ḥadīth a non-living report (ghayr maʿmūl bihi) in the formative period does not mean the door is sealed for said ḥadīth. In other words, a non-living report can be revived later and reconsidered a living report if it matches some legal views and interpretations of the following generations. The dominance of post-canonical ḥadīth shows us historical shifts and multiple waves in the internal Ḥanafī process of resurrecting ḥadīth.
 See, for instance, Albrecht Noth, “Common Features of Muslim and Western Ḥadīth Criticism: Ibn al-Jawzī’s Categories of Ḥadīth Forgers” in Hadith, ed. Harald Motzki (London: Routledge, 2004), 309-16; Harald Motzki, “The Musannaf of ʿAbd Al-Razzāq Al-Ṣanʿānī as a Source of Authentic Aḥādīth of The First Century A.H.” in Hadith, ed. Harald Motzki (London: Routledge, 2004), 287-307; and Jonathan Brown “Critical Rigor vs. Juridical Pragmatism: How Legal Theorists and Ḥadīth Scholars Approached the Backgrowth of Isnāds in the Genre of ʿIlal al-Ḥadīth,” in Islamic Law and Society 14 (2007):1-41.
 See, for instance, al-Muwaṭṭaʾ, ed. Muḥammad Fūʾād ʿAbd Al-Bāqī (Beirut: al-Maktaba al-Thaqāfiyya, 1992), 2:671.
 Abū al-Wafā ʿAlī ibn ʿAqīl, al-Wādiḥ fī uṣūl al-fiqh, ed. Abdullah ibn ʿAbd al-Muḥsin al-Turkī (Beirut: Muaʾssasat al-Risāla, 1999), 5:21.
 See, for instance, Aḥmad Muḥammad Shākir, al-Bāʿith al-ḥathīth sharḥ ikhtiṣār ʿulūm al-ḥadīth of Ibn Kathīr, ed. Nāṣir al-Dīn al-Albānī (Al-Riyad: Maktabat al-Maʿārif, 1996), 1:139.
 One of these examples can be traced in Bukhārī’s treatise on raising hands in prayer (rafʿ al-yadayn fī’l-rukūʿ), in which Bukhārī explicitly does not separate between narration and action. For him, narrating means believing in the content and acting upon it. Bukhārī, Kitāb rafʿ al-yadayn fī’l-ṣalāh, ed. Badīʿ al-Dīn al-Rāshidī (Beirut: Dār Ibn Ḥazm, 1996), 128.
 It is widely narrated among the early generation that a 2nd/8th century ḥadīth critic and narrator al-Aʿmash (d. 148/765) depicted the Ḥanafī method as the method of physicians, and Ahl al-Ḥadīth’s method as the method of pharmacists. See Ibn ʿAbd al-Barr, Jāmiʿ bayān al-ʿilm wa faḍlih, ed. Abū al-Ashbāl al-Zuhayrī (al-Dammam: Dār Ibn al-Jawzī, 1997), 2:1030. See also a number of anecdotes portraying the Ḥanafī method in al-Kawtharī’s works: Bulūgh al-Amānī fī Sīrat Muḥammad ibn al-Ḥasan al-Shaybānī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), 185, and Lamaḥāt al-naẓar fi sīrat al-imām zufar (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004) 211.
 A number of Ḥanafī and Muʿtazilite sources used these tools. Among them, for instance, are Ḍirār ibn ʿAmr’s al-Taḥrīsh, Khayyaṭ’s al-Intiṣār, Jaṣṣāṣ’s al-Fuṣūl fi’l-uṣūl, Balkhī’s Qabūl al-Khbār wa maʿrifat al-rijāl and al-Maqālāt, ʿAbd al-Jabbār’s Faḍl al-iʿtizāl, and al-Mughnī fī abwāb al-ʿadl wa’l-tawḥīd, Dabūsī’s Taʾsīs al-naẓar and Taqwīm uṣūl al-fiqh, Abū al-Ḥusayn al-Baṣrī’s al-Muʿtamad. See also Racha El-Omari, “Accommodation and Resistance: Classical Muʿtazilites on Ḥadīth” Journal of Near Eastern Studies 71, no. 2 (2012):231-56.
 See Balkhī, Qabūl al-Khbār wa maʿrifat al-rijāl, ed. Abu ʿAmr al-Ḥusaynī ibn ʿUmar ibn ʿAbd al-Raḥīm (Beirut: Dār al-Kutub al-ʿIlmiyya), 1:17.
 See Dabūsī, Tʾasīs al-naẓar, ed. Muṣtafā Muhammad al-Qabbānī al-Dimashqī (Beirut: Dār Ibn Zaydūn, n.d.), 156-57.
 As suggested by Christopher Melchert, “Traditionist-jurisprudents and the framing of Islamic Law” Islamic Law and Society 8, no. 3 (2001): 383-406, and Robert Gleave in his “Shīʿī Law/Islamic Law: Some Category Problems,” Islamic Law Blog, December 10, 2020, https://islamiclaw.blog/2020/12/10/shi%CA%BFi-law-islamic-law-some-category-problems/.
 The term “lived report” is borrowed from Yossef Rapoport’s term “lived law.” For a brief description see his interview on the Islamic Law Blog: Islamic Law Blog, ed., “Studying a Lived Law: An Interview with Yossef Rapoport,” Islamic Law Blog, December 15, 2020, https://islamiclaw.blog/2020/12/15/studying-a-lived-law-an-interview-with-yossef-rapoport/.
 One of many examples of this process is can be found in the works of a pre-modern sub-continent Indian Ḥanafī figure Muḥyī al-Dīn al-Laknawī. Sohail Hanif’s thesis “A Theory of Early Classical Ḥanafism: Authority, Rationality and Tradition in the Hidāyah of Burhān al-Dīn ʿAlī ibn Abī Bakr al-Marghīnānī (d. 593/1197)” (PhD diss. University of Oxford, 2017) is a useful source for tracing this Ḥanafīs trajectory.
(Suggested Bluebook citation: Issam Eido, Lived or Non-Lived Ḥadīth? Content vs. Narrator Criteria in Early Ḥanafī Law, Islamic Law Blog (Nov. 4, 2021), https://islamiclaw.blog/2021/11/04/issam-eido-guest-editor/)
(Suggested Chicago citation: Issam Eido, “Lived or Non-Lived Ḥadīth? Content vs. Narrator Criteria in Early Ḥanafī Law,” Islamic Law Blog, November 4, 2021, https://islamiclaw.blog/2021/11/04/issam-eido-guest-editor/)