By Issam Eido
This is part three in a series of four posts on Ḥanafī criteria for using ḥadīth in the ‘courts and canons’ of early Islamic law.
Before the emergence of the canonical ḥadīth books, courts served as one of the main factors in the formative period in impacting the concept of fiqh and the way how scholars approached ḥadīth. A Ḥanafī method for resolving interpretive disputes, in ways not based on textual arguments is called “What-is-the-aṣl,” and it is one of the many byproducts of this period.
The word aṣl has multiple meanings. It was used over the course of the early period in different ways. It can be traced back to the work of Muḥammad b. al-Ḥasan al-Shaybānī’s al-Aṣl or al-Mabsūṭ, one of his six reliable Ẓāhir al-Riwāya books.[1] The aṣl was used also as a single evidence (dalīl) for single legal cases, and used later as a plural form uṣūl under the genre uṣūl al-fiqh, meaning the hermeneutic principles followed by theorists.[2]
However, the concept of aṣl also has unique usage in the Ḥanafī writings: it means source or legal canon. The earliest usage can be traced to some anecdotes reported in Ibn Abī al-ʿAwwām’s (d. 335/946) Faḍāʾil Abū Ḥanīfa wa akhbāruh wa manāqibuh. In one of these anecdotes, he compares two disciples of Abū Ḥanīfa: Yūsuf b. Khālid al-Samtī (d. 189/805), known for fabricating ḥadīth,[3] and Zufar b. al-Hudhayl (d. 158/775), one of the main disciples of Abū Ḥanīfa known for narrating ḥadīth in his early career and then for his legal opinions in his later career.[4] The author discusses how these two figures presented their fiqh expertise to the Basran community and its faqīh, ʿUthmān al-Battī. Upon Samtī’s failure in his attempt to convince the circle of fuqahā’, the people of Basra began to curse his teacher Abū Ḥanīfa. Thereafter Zufar came to the scene and started attending al-Battī’s lessons delivered in a teaching circle. Once he identified the aṣl (waqafa ʿalā al-aṣl) on which Battī’s circle based its legal rulings (furūʿ), he started examining the individual rulings that they categorized under that aṣl. Upon finding that they departed from their aṣl, he asked Battī to show him the connection between the aṣl and the legal ruling. We learn from the discussion that Battī failed to do so, twice, resulting in his circle somewhat distancing themselves from their teacher. In that moment of failure and distancing, Zufar proclaimed that this subject (bāb) has a better aṣl and that all legal rulings can be systematized beneath.[5]
Earlier, Zufar learned this method in his early encounters with Abū Ḥanīfa, who taught him the techniques of reading ḥadīth and how to elicit the rationales behind them (ʿilal).[6] Because of these techniques, Zufar abandoned the camp of Ahl al-Ḥadīth.
A few decades later, the same scenario occurred with ʿIsā b. Abān who also abandoned the proponents of ḥadīth (Ahl al-Ḥadīth) for the proponents of opinion (Ahl al-Raʾy) upon a meeting with Shaybānī, who would become his teacher. During that meeting, Shaybānī resolved for him a contradiction he had identified in twenty-five aḥādīth.[7]
The usage of aṣl is found in two types of Ḥanafī literature: biographical dictionaries and legal treatises (furūʿ works). In biographical dictionaries, we find a number of discussions of how the concept was used among those in the immediate circle of Abū Ḥanīfa.[8] It is Shaybānī’s works, in particular his magnum opus, Kitāb al-Ḥujja ʿala Ahl al-Madīna, where the concept of aṣl, even though not verbally mentioned, seems to have been applied. The main narrator of al-Ḥujja was Shaybānī’s disciple ʿIsā b. Abān, whose lost works’ main content is completely focused on ḥadīth criticism.[9] Fortunately, his views on ḥadīth criticism have been preserved through quotations by the later Ḥanafī jurist Jaṣṣāṣ in his jurisprudential work al-Fuṣūl fiʾl uṣūl,[10] which explicitly used the term and concept aṣl (pl. uṣūl).[11] Al-Jaṣṣāṣ’s other work, Sharḥ Mukhtaṣar al-Ṭaḥāwī, an encyclopedic work on furūʿ, can be described as an applied manual of the aṣl concept.[12]
A few decades later, the term solidified, became more visible, and gained consistency in the works of the Ḥanafī jurist Abū Zayd al-Dabūsī (d. 430/1038). Dabūsī’s brief manual Taʾsīs al-naẓar presents two types of uṣūl: first al-qiyās ʿala al-uṣūl or qiyās al-uṣūl and second al-uṣūl or uṣūl al-qiyās.[13] The first usage of uṣūl refers to single cases used as a model for furūʿ; this is typically what legal analogy means where we use aṣl as a model for farʿ when both of them share the same legal rationale (ʿilla). The second usage of uṣūl refers to a legal canon shared locally across a specific chapter or globally in all chapters. This aṣl or canon could be a text-based canon (based on a Qur’ānic verse or ḥadīth), or a non-text-based canon elicited partially or wholly from legal rulings in fiqh chapters or judicial practice.
The trajectory of the second usage of the aṣl can be traced in the Ḥanafī works in both the formative period and the post formative period. The formative period witnessed a slow and gradual evolution of the concept beginning with the circle of the founder Abū Ḥanīfa and his three immediate students: Zufar and the two judges Abū Yūsuf and Shaybānī, then developed by the judge ʿIsā ibn Abān, the main narrator of Shaybānī‘s Ḥujja. After Ibn Abān, two figures played a significant role in carrying on the tradition of aṣl: first, the judge of judges, Abū Khāzim ʿAbd al-Ḥamīd, the student of Ibn Abān and the teacher of the second figure, Abū Jaʿfar al-Ṭaḥāwī[14] whose work, Sharḥ maʿānī al-athār can be considered the text that paved the road for Jaṣṣāṣ’s aṣl-applied text, Sharḥ Mukhtaṣar al-Ṭaḥāwī.
Sharḥ maʿānī al-athār appears to have been written as a response to the early Ahl al-Ḥadīth’s accusations of lacking ḥadīth expertise among Ḥanafī jurists alongside another accusation, namely that Shaybānī did not build his fiqh on isnād-based evidences.[15] Ṭaḥāwī’s style shows a sophisticated method applying the techniques of early ḥadīth scholars where they criticized ḥadīth for lacking one of the five famous criteria of sound ḥadīth alongside his Ḥanafī techniques, where the legal canon[16] and comprehensive, systematic, and coherent reading of ḥadīth was used for verifying any ḥadīth.[17]
After the formative period, two works highlighted explicitly the concept of aṣl; Jaṣṣāṣ and Dabūsī. (Figure 1 portrays the aṣl’s trajectory, and Figure 2 shows a broader map of the early four centuries of the Ḥanafī school. The blue shows the main route of aṣl and the red line defines the dividing line between the early and the late period of the Ḥanafī school (salaf and khalaf).)
(Figure 1)
(Figure 2)
A close reading of all these Ḥanafī primary sources: Shaybānī’s Ḥujja, Ṭaḥāwī’s Sharḥ maʿānī al-athār, Jaṣṣāṣ’s two works Sharḥ Mukhtaṣar al-Ṭaḥāwī and al-Fuṣūl fiʾl uṣūl, and Dabūsī’s works Tʾasīs al-naẓar and Taqwīm uṣūl al-fiqh paint for us a picture that the concept of “legal canon” was used widely and manifested through different forms such as furūq (dissimilar issues), al-ashbāh waʾl-naẓāʾir (similar issues), and uṣūl (specific and general canons).
All of these forms gradually evolved and ended up as independent genres: furūq, al-ashbāh waʾl-naẓāʾir, qawāʿid fiqhiyya. Over the course of the post formative period, all of these genres have been interwoven and mixed throughout the Ḥanafī furūʿ literature. It was the Ḥanafī jurist Ibn Nujaym Zayn al-Dīn b. Ibrāhīm b. Muḥammad (d. 970/1652) who finally, after a long lacuna and a complicated external process that happened outside Ḥanafī circles, revived the early Ḥanafī interest and method through his independent book al-Ashbāh wa’l-naẓāʾir. To that end, the claim that Ḥanafis did not pen treatises on these genres before Ibn Nujaym seems inaccurate if we consider the content of Ḥanafī furūʿ books where all of these terms aṣl, furūq, ashbāh wa naẓāʾir, and qawāʿid are discussed.[18]
Notes:
[1] On the meaning of aṣl and its significance in Shaybānī’s al-Mabsūṭ, see the editor’s introduction to the book, -Shaybānī, al-Aṣl, ed. Mehmet Boynukalın (Qatar: Wizārat al-Awqāf wa’l-Shuʾūn al-Islamiyya, 2012), 43-46, and see also his detailed section on all hermeneutic principles found in ibid., 176-293.
[2] On the usages of the term aṣl, see Zuḥaylī, Uṣūl al-fiqh al-islāmī (Damascus: Dār al-Fikr, 1986), 1:16.
[3] Laknawī, al-Fawāʾid al-bahiyya fī tarājim al-ḥanafiyya, ed. Aḥmad al-Zuʿbī (Beirut: Dār al-Arqam ibn Abī al-Arqam, 1998), 376.
[4] It is reported that upon Abū Ḥanīfa’s death, three of his disciples led his circle, Zufar, Abū Yūsuf, and Shaybānī, respectively. See al-Kawtharī, Lamaḥāt al-naẓar fi sīrat al-imām zufar (Bierut: Dār al-Kutub al-ʿIlmiyya, 2004) 228.
[5] Ibn Abī al-ʿAwwām, Faḍāʾil Abū Ḥanīfa wa akhbāruh wa manāqibuh, ed. Laṭīf al-Raḥmān al-Bahrāʾijī al-Qāsimī (Mecca: al-Maktaba al-Imdādiyya, 2010) P 297.
[6] Ṣaymarī, Akhbār Abī Ḥanīfa wa-aṣḥābih (Beirut: ʿAlam al-Kutub, 1985) 112-113.
[7] Kawtharī, Bulūgh al-Amānī fī Siyrat Muhammad ibn al-Ḥasan al-Shaybānī (Bierut: Dār al-Kutub al-ʿIlmiyya, 2004), 185-86
[8] In particular his two disciples: Zufar and Abū Yūsuf.
[9] Al-Ḥujaj al-kabīr, al-Ḥujaj al-ṣaghīr, and Shurūt qabūl al-akhbār.
[10] For instance, see 3:35.
[11] See, for instance, 3: 129, 134, 136, 165, 168 and 169.
[12] See, for instance, Jaṣṣāṣ, Sharḥ Mukhtaṣar al-Ṭaḥāwī, ed. ʿIṣmat Allāh ʿInāyat Allāh Muḥammad (Beirut: Dār al-Bashāʾir al-Islamiyya, 2010), 1/436-37.
[13] See Dabūsī, Taʾsīs al-naẓar, ed. Muṣtafā Muḥammad al-Qabbānī al-Dimashqī (Bierut: Dār Ibn Zaydūn, n.d.), 156-57.
[14] Abū Khāzim is also the teacher of Abū al-Ḥasan al-Karkhī who represents a different method in reading ḥadīth based on the Qur’ān and well-known sunna (sunna mashhūra). For more details on his method see ʿAlāʾ al-Dīn al-Bukhārī, Kashf al-asrār, ed. Muhammad al-Muʿtaṣim bi’llah al-Baghdādī (Beirut: Dār al-Kitāb al-ʿArabī, 3rd ed., 1997), 2:707
[15] See Maḥfūẓ Aḥmad, al-Fawāʾid al-muntaqā min amālī imām al-ʿasr Muhammad Anwar Shāh al-Kashmīrī (Amman: Dār al-Fatḥ, 2019), 97.
[16] The contemporary Ḥanafī scholar Muhammad Zāhid al-Kawtharī (d. 1371/1951) depicted Ṭaḥāwī’s method as the method of al-aṣl al-jāmiʿ (the universal canon). See Kawtharī, al-Ḥāwī fī sīrat al-imām Abī Jaʿfar Al-Ṭaḥāwī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), 249.
[17] On his method, see the brief description in ibid. 248-49.
[18] See my review of Khadiga Musa’s A Critical Edition of ʿUmdat al-Nāẓir ʿalā al-Ashbāh wal-Naẓāʾir (Sheffield, UK: Equinox, 2018), as well as my review, 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. For more details on the evolution and historical development of Islamic legal maxims, see Necmettin Kizilkaya, Legal Maxims in Islamic Law: Concept, History and Application of Axioms of Juristic Accumulation (Leiden, Boston: Brill, 2021).
(Suggested Bluebook citation: Issam Eido, Canons: Specific and General aṣl, Islamic Law Blog (Nov. 18, 2021), https://islamiclaw.blog/2021/11/18/canons-specific-and-general-a%e1%b9%a3l/)
(Suggested Chicago citation: Issam Eido, “Canons: Specific and General aṣl,” Islamic Law Blog, November 18, 2021, https://islamiclaw.blog/2021/11/18/canons-specific-and-general-a%e1%b9%a3l/)