By Issam Eido
This is part two in a series of four posts on Ḥanafī criteria for using ḥadīth in the ‘courts and canons’ of early Islamic law.
There are many legal canons (uṣūl or qawāʿid fiqhiyya) pertaining specifically to court evidence, procedure, or conduct, such as “the burden of proof is on the claimant and the respondent may swear an oath of denial,” (al-bayyina ʿalā al-muddaʿī wa’l-yamīn ʿalā man ankar) “two women’s testimony for that of one man,” or “judges are to avoid deciding cases when angry and could be dismissed for cause” (lā yaqḍī al-qāḍī wa hūwa ghaḍbān). However, courts served as a public domain or a societal umbrella which helped in creating, developing, and interpreting the majority of canons.
According to Intisar Rabb in an earlier Islamic Law Blog post on Islamic Legal Canons as Memes, “[t]he canons come from both the classical enumeration of the four foundational sources (Qur’ān, Sunna, consensus, and legal reasoning) and from juristic and judicial practices addressing local disputes, responding to political authority and encapsulating social cultural norms.” Some of these sources, such as the Qur’ān and Sunna, included text-based canons such as “verily works are only according to their intentions (innama al-aʿmāl biʾl-niyyāt)” or “no harm and no reciprocating harm (la ḍarar wa la ḍirār).” A portion of these canons, Rabb explains, can be dated to the start of Islam, and some referred back to a Qur’ānic verse or prophetic statement, while others percolated through common judicial practice over time and later officially assumed the status of a legal canon. In the sub-genre al-Ashbāh waʾl-naẓāʾir (similar legal cases), which falls under the umbrella of legal canons, Khadiga Musa dates legal canons’ origin to the early Ḥanafī legal writings in the second, third, and fourth Islamic centuries.
The purpose of this post is to show how the Islamic legal canons genre was primarily a product of court-related work and how courts helped give birth to and develop new canons. In addition, this post attempts to show how the courts had been primarily dominated by Ḥanafī jurists, and how their domination helped in generating canons and new legal rulings.
A number of western studies claim that fiqh cannot be studied outside of its social, political and geographical contexts. Reading fiqh without understating its social history misleads our analysis. The writings of the formative period are significant in understating the text’s nature, sources, and milieu. To that end, early Ḥanafī writings can be approached as a primary engine for two operations: using scriptural canons, such as “no harm and no reciprocating harm”, and creating non-scriptural canons such as “certainty is not abandoned for probability” (al-yaqīn lā yutrak bi-l-ẓann). Both of these types of canons can be understood as a product of courts. On the other hand, they represent a crucial element in interpreting ḥadīth.
The biographies, judicial conduct literature (adab al-qāḍī), and early Muslim history consist of a large corpus on the name of judges, their madhhab, and ranks (for some sources, see the top part of figure 1). Analyzing these sources helps in understanding the connection between the authority of courts as a public domain and the produced legal texts including canons and other sub-genres like al-ashbāh waʾl-naẓāʾir and al-furūq (legal dissimilar issues). In the following paragraphs, I attempt to shed some light briefly on the transformations of judiciary among the main legal schools from the second/eighth century and to the fourth/tenth century.
By reviewing multiple sources (Ḥanafī and non-Ḥanafī), one comes to notice that courts had been primarily dominated by Ḥanafī jurists for at least one century of the formative period (see figure 1), from the mid-second to the late third Islamic century (166/783-270/884).
Over the course of this century, some Ḥanafī judges, like Abū Yūsuf (d. 182/798), occupied the rank “the judge of judges” or qāḍī al-quḍāt. Muhammad b. al-Hasan al-Shaybānī (d. 189/805) was assigned as chief judge of the ‘Abbāsid empire. In the late second Islamic century, his student ʿIsā b. Abān (d. 221/836) followed his teacher’s path, serving as a judge for the ‘Abbāsid authorities. Later, in the second half of third/ninth century, Abū Khāzim ʿAbd al-Ḥamīd (d. 292/905), a student of Ibn Abān who penned a treatise Adab al-qāḍī, was assigned as a judge of judges. It is attributed to Abū Ḥanīfa that he said: our circle consists of thirty six fellows, twenty eight of them are qualified to be judges, six are qualified to issue fatwā (legal opinion), and two (Abū Ḥanīfa points towards his two disciples Zufar d. 158/ 775 and Abū Yūsuf) are qualified to be a mentor of the first two the judge and muftī. While this period had witnessed some names from other non-Ḥanafī schools (see figure 2), the majority of courts had been dominated by Ḥanafī jurists.
Approaching the late third Islamic century, we notice, as I will mention later, that the Ḥanafī authority over courts started to disappear in favor of the presence of other Islamic schools. When the famous Shāfiʿī scholar Ibn Surayj (d. 306/918) was appointed to be a judge over Shiraz, his contemporary, Abū ʿAlī al-Ḥusayn b. Ṣaliḥ b. Khayrān al-Baghdādī, cautioned him, saying: “this thing (judgment) was not a path of our Shāfiʿī associates; it was a path of Abū Ḥanīfa’s fellows.” Nevertheless, the fourth Islamic century witnessed a noticeable presence of Shāfiʿī and Mālikī jurists. Some of them were appointed to be chief judges (qāḍī al-quḍāt). Examples include two Mālikīs: Muḥammad b. Yūsuf al-Azdī (d. 320/932) and ʿUmar b. Muḥammad b. Yūsuf al-Azdī (d. 328/939), and the Shāfiʿī Abū al-Sāʾib ʿUtba b. ʿUbayd Allāh (d. 350/961). Later in the same century, Shāfiʿī jurists advanced in judicial appointments. For example, Abū Ḥāmid al-Marwarrūzī (d. 362/972) was depicted as an unrivaled judge (wāḥid ʿaṣrih fī ṣinā’at -al-qāḍāʾ).
Conversely, the famous Ḥanafī scholar Abū Al-Ḥasan al-Karkhī (d. 340/951), a student of the judge of judges Abū Khāzim ʿAbd al-Ḥamīd, was offered an appointment as a judge, but he refused it. Furthermore, he used to disassociate from any of his Ḥanafī associates who accepted a judgeship. Abū Bakr Aḥmad b. ʿAlī al-Rāzī al-Jaṣṣāṣ (d. 370/980), Karkhī’s student and one of the most important Ḥanafī figures in the early post formative period, likewise refused judicial appointments.
Ḥanafī dominance over the courts over the course of the second/eighth-third/ninth centuries had put them face to face with all sorts of complicated legal cases. Their literature suggests that fiqh had a huge impact on society, and could not be processed based upon single solitary bases, such as ḥadīths. To that end, their attempts of fiqh construction showed a sophisticated process, manifesting their craft of connecting dots through al-ashbāh waʾl-naẓāʾir and al-furūq (identical and dissimilar legal issues), digging deeply to find the root (aṣl) of each single legal case (farʿ). Fiqh, in this context, is understood as a broader concept and is not limited merely to what texts say; fiqh, as an umbrella term, also refers to the jurisprudence legal rulings (furūʿ al-fiqh) and interpretive processes (uṣūl al-fiqh) in a manner showing wisdom and proficiency in crafting the whole picture. Courts, as venues with an enormous impact upon Muslim societies, had not crafted only the canons pertaining to courts, but created and influenced the whole process of fiqh.
The courts made Ḥanafīs aware of the impact of relying on solitary texts, and the importance of combing both textual and non-textual sources when crafting any legal ruling. Ḥadīth (reports) for them carried authority when there was no room for contradiction with other textual and non-textual sources. But when a contradiction occurred, early Ḥanafīs followed a complex process to resolve it. One tool in the toolkit they used to resolve this contradiction, as I will discuss later, is the method of “what-is-the-aṣl.” Another method they used, which was apparently influenced by their control of the courts, is establishing five non-isnād tools that helped in analyzing, interpreting, and criticizing isnād-based texts.
Two of their five non-isnād tools are as follows: First and second, textual evidence of two types, namely, unequivocal Qur’ānic texts (al-kitāb alladhī lā yaḥtamil al-maʿānī) and established Sunna (al-sunna al-thābita). Accordingly, a clear text from the Qur’ān or Sunna needs to be definitive in terms of meaning and attribution in order to be a base for criticizing ḥadīth. The third tool is the rational argument called mūjibāt aḥkām al-ʿaql (necessary rational conclusions). The fourth and fifth tools were apparently a product of the influence of being in charge of the courts; general afflictions: ʿumūm al-balwā, and the practice of first generation: ʿamal al-ṣadr al-awwal. ʿUmūm al-balwā means literally generality of affliction, but the concept is based upon the idea that the whole society is impacted by a ruling. In this context ʿumūm al-balwā can be depicted as any ruling pertaining to public matters. In order to establish a ʿumūm al-balwā ruling, Ḥanafīs require a mass-narrated ḥadīth report (mutawātir). And if a solitary ḥadīth report, khabar wāḥid, contradicts the practice, then the report is depicted as anomalous (shādhdh).
After the rise of the six canonical ḥadīth collections and over the course of the post formative period, these non-isnād tools were challenged widely in the non-Ḥanafī works. However, their presence was still noticed in the Ḥanafī manuals of uṣūl al-fiqh and considered a consistent method amongst the majority of Ḥanafī theorists. However, in furūʿ writings we can witness that some later scholars supported the view of non-Ḥanafī schools and gave a preference to ḥadīth over these non-isnad tools. Nevertheless, the majority of later Ḥanafīs who have penned works on furūʿ remained loyal to the early method and included what-is-the-aṣl’s method, al-ashbāh waʾl-naẓāʾir, and al-furūq in their encyclopedic furūʿ books. Perhaps it is for this reason that we do not find before the late Ḥanafī jurist Ibn Nujaym’s (d. 970/1652) magnum opus Al-ashbāh wal-naẓāir an interest amongst the post formative Ḥanafīs in writing a special treatise on the genre, since all of these methods are included in their books.
 See Intisar Rabb, “Islamic Legal Canons as Memes,” Islamic Law Blog, February 28, 2021, https://islamiclaw.blog/2021/02/28/islamic-legal-canons-as-memes/
 Ṣaḥiḥ al-Bukhāri (Karachi: Dār al-Bushrā, 2017), 1:119, no. 1 and Ṣaḥiḥ Muslim (Karachi: Dar al- Bushrā, 2017), 3:1262, no. 1907
 Imām Mālik, Al-Mūwaṭṭaʾ, ed. Muḥammad Fūʾād ʿAbd Al-Bāqī (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1985), 2:745 and Ibn Mājah, Sunan, ed. Muḥammad Fūʾād ʿAbd Al-Bāqī (Dār Iḥyāʾ al-Kutub al-ʿArabiyya, n.d.), 2:784 and 2:341.
 See Intisar Rabb, “Islamic Legal Canons as Memes.” Rabb in her book Doubt in Islamic Law opines that there were three main stages for canons: first emerged canons (canonization through judicial practice), then there was a claim that they were based on texts or ḥadīths (textualization), which was then followed by a larger period of collection and interpretation of those principles formally labeled as qawāʿid fiqhiyya and their sub-genres (interpretation). See Doubt in Islamic Law, A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2014), 48-66.
 Khadiga Musa, A Critical Edition of ʿUmdat al-Nāẓir ʿalā al-Ashbāh wal-Naẓāʾir (Sheffield, UK: Equinox, 2018), 36-41. See also my review of Musa’s work, available at: https://readingreligion.org/books/critical-edition-umdat-al-n%C4%81zir-al%C4%81-al-ashb%C4%81h-wal-naz%C4%81-ir.
 This supports the major conclusion of Intisar Rabb’s Doubt in Islamic Law. Yet the purpose here is explicating more closely how this occurred within the Ḥanafī school.
 See, for instance, 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-Marghīnāniī (d. 593/1197)” (PhD diss, University of Oxford, 2017); Yossef Rapoport’s book Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005); 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/; and Najam Haider, “Future Avenues in the Study of Islamic Law,” Islamic Law Blog, December 22, 2020, https://islamiclaw.blog/2020/12/22/future-avenues-in-the-study-of-islamic-law/.
 These canons are Qur’ānic verses or prophetic statements.
 These canons are elicited from Qur’ānic verses or prophetic statements, or percolated through common judicial practice.
 Shaybānī, Kitāb al-Ḥujja ʿala Ahl al-Madīnah. ed. Mahdī Ḥasan al-Kaylānī al-Qādirī (Pakistan: Maktabat Ṭayyiba, n.d.), 3:354
 For a comprehensive biography of many Ḥanafī figures and the names of Ḥanafī judges of the early period, see Nurit Tsafrir, The History of an Islamic School of Law: The Early Spread of Hanafism (Cambridge, MA: Islamic Legal Studies Program at Harvard Law School, 2004), and Mathieu Tiller, L’invention du cadi: La Justice des musulmans, des juifs et des chrétiens aux premiers siècles de l’Islam, Bibliothèque historique des pays d’Islam 10 (Paris: de la Sorbonne, 2017).
 For a brief biography of Abū Yusuf see al-Kawtharī’s Ḥusn al-taqāḍī fī sīrat al-imām Abī Yusuf al-Qāḍī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), 69-145.
 Kawtharī, Bulūgh al-amānī fī Siyrat Muḥammad ibn al-Ḥasan al-Shaybānī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004),147-204.
 Laknawī, al-Fawāʾid al-bahiyya fī tarājim al-ḥanafiyya, ed. Aḥmad al-Zuʿbī (Beirut: Dār al-Arqam ibn Abī al-Arqam, 1998), 146-47.
 Ibid., 149-15; Ibn al-ʿImād al-Ḥanbalī, Shadhahrāt al-dhahab fī akhbār man dhahab, eds. ʿAbd al-Qādir al-Arnāʾūt and Maḥmūd al-Arnāʾūt, (Beirut: Dār Ibn Kathīr, 1986), 3:388.
 Kawtharī, al-Imtāʿ bi sīrat al-imāmayn al-Ḥasan ibn Ziyād wa ṣāḥibih Muḥammad ibn Shujāʿ (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), 20.
 Ibn al-ʿImād al-Ḥanbalī, Shadhrāt al-dhahab fī akhbār man dhahab, 4:103.
 Ibid., 4:102.
 Ibid., 4:147-48.
 Ibid., 4:265.
 Ibid., 4:327.
 Ibid., 4:220; Laknawī, al-Fawāʾid al-bahiyya fī tarājim al-ḥanafiyya, 183-84; and Ibn Quṭlūbugha, Tāj al-Tarājim, ed. Muhammad Khayr Ramaḍān Yusuf (Damascus: Dār al-Qalam, 1992), 200-01.
 Ibid.; Ibn al-ʿImād al-Ḥanbalī, Shadhrāt al-dhahab fī akhbār man dhahab, 4:377.
 See, for instance, these two examples: bāb mass al-dhakar and bāb al-wuḍū’ min al-qubla in Kitāb al-Ḥujja ʿala Ahl al-Madīnah, ed. Mahdī Ḥasan al-Kaylānī al-Qādirī (Pakistan: Maktabat Ṭayyiba, n.d.), 1:53 and 57; Jaṣṣāṣ, Sharḥ mukhtaṣar al-ṭaḥāwī, ed. ʿIṣmat Allāh ʿInāyat Allāh Muḥammad (Beirut: Dār al-Bashāʾir al-Islamiyya, 2010), 1:379-403.
 These tools will be discussed in details in the following essays. However, here are some sources mentioning them: Jaṣṣāṣ, al-Fuṣūl fi’l uṣūl, ed. Muḥammad Muḥammad Tāmir (Beirut: Dār al-Kutub al-ʿIlmiyya, 2010), 3:122; Dabūsī, Taqwīm uṣūl al-fiqh wa taḥdīd adillat al-sharʿ, ed. ʿAbd al-Jalīl ʿAṭā (Damascus: Dār al-Nuʿmān li’l-ʿUlūm, 2005), 1:408; Sarkhasī, Uṣūl, ed. Abū al-Wafā al-Afaghānī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2nd ed., 2005), 1:339-40; ʿAlāʾ al-Dīn al-Bukhārī, Kashf al-asrār, ed. Muḥammad al-Muvtaṣim bi’llah al-Baghdādī (Beirut: Dār al-Kitāb al-ʿArabī: 3rd ed., 1997), 2:299; Ibn Malak, Sharḥ Manār al-anwār fi’ uṣūl al-fiqh (Beirut: Dār al-Kutub al-ʿIlmiyya, n.d.), 209-11; and Laknawī, Ẓafar al-amānī, ed. ʿAbd al-Fattāḥ Abū Ghudda (Aleppo: Maktabat al-Matbūʿāt al-Islamiyya, 3rd ed., 1416), 66-67.
 On the early usage of the term shādhdh, see Abū Yūsuf’s statement in Shāfiʿī’s al-Umm, ed. Rifʿat Fawzī ʿAbd al-Muṭṭalib, 11 vols. (Al-Manṣūra: Dār al-Wafāʾ, 2001), 9:188-89.
 For instance, the sub-continent Indian scholar Laknawī from pre-modern era. Though the Egyptian scholar al-Kamāl Ibn al-Humām is considered one of these Ḥanafīs according to Sohail Hanif, a number of legal cases show the opposite. On Ibn al-Humām see 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-Marghīnāniī (d. 593/1197).”
 For Khadija Musa, Islamic legal canons and other genres witnessed an emergence amongst Shāfiʿī, Mālikī, and Ḥanbalī scholars in the eighth Islamic century. See my review of her book, A Critical Edition of ʿUmdat al-Nāẓir ʿalā al-Ashbāh wal-Naẓāʾir (Sheffield, UK: Equinox, 2018) available at: https://readingreligion.org/books/critical-edition-umdat-al-n%C4%81zir-al%C4%81-al-ashb%C4%81h-wal-naz%C4%81-ir.
(Suggested Bluebook citation: Issam Eido, Early Ḥanafī Jurists, Court Practice, and the Authority of General Afflictions (ʿUmūm al-Balwā), Islamic Law Blog (Nov. 11, 2021), https://islamiclaw.blog/2021/11/11/early-%e1%b8%a5anafi-jurists-court-practice-and-the-authority-of-general-afflictions-%ca%bfumum-al-balwa/)
(Suggested Chicago citation: Issam Eido, “Early Ḥanafī Jurists, Court Practice, and the Authority of General Afflictions (ʿUmūm al-Balwā),” Islamic Law Blog, November 11, 2021, https://islamiclaw.blog/2021/11/11/early-%e1%b8%a5anafi-jurists-court-practice-and-the-authority-of-general-afflictions-%ca%bfumum-al-balwa/)