Many of the standard labels we use to describe historical periods of Islamic law are really theological claims. The basic premises are that 1) the history of Islamic law = the history of madhhabs, and 2) Islamic law has an ideal form (“classical”) and is not a living tradition.
Abu Hanifa, his students, Malik, Shafi’i etc are often presented as the “founders” of Islamic law (because it’s assumed that “Islamic law = madhhabs”) & their era (late 8th-mid-9th C) is often called the “formative period” of Islamic law.
In reality, they re-formed Islamic law
In reality, they re-formed Islamic law
But the figures in the generations before the late 8th century had a head start. They left a legacy of opinions and ways of thinking about parts of the law that could never fully be erased. Often these early opinions frustrate later scholars’ assumptions and categories.
I will provide some case studies in a moment, but first I should say a bit about the best sources we have available for early Islamic law.
Two of the most important sources are the hadith collections of ʿAbd al-Razzāq al-Ṣanʿānī (744-827) and Ibn Abī Shayba (775-849).
Two of the most important sources are the hadith collections of ʿAbd al-Razzāq al-Ṣanʿānī (744-827) and Ibn Abī Shayba (775-849).
ʿAbd al-Razzāq & Ibn Abī Shayba's collections preserve an earlier mode of fiqh. Most of their reports are not cited from the Prophet, but "Successors" like al-Ḥasan al-Baṣrī, ʿAṭāʾ b. Abī Rabāḥ, Ibn Shihāb al-Zuhrī.
AR & IAS narrate from important students of these figures.
AR & IAS narrate from important students of these figures.
[Note: if an opinion is cited from Successor (i.e. the generation after the Companions of the Prophet) it does not *automatically* prove that it is not *also* traced back to the Prophet. Sometimes an opinion is cited from a Successor in one place, & from the Prophet elsewhere]
[Similarly, reports from Successors don’t always preserve the reasoning they used. But just because there is no mention of a Qur’anic or prophetic basis, it doesn’t always mean the Successor is not using those sources. Again, sometimes there are “short versions” that omit detail]
In any case, there was generally much less of a focus on Prophetic hadiths in these early collections. This may be because these reports originate from a time before al-Shāfiʿī (767-820) had spearheaded the revolutionary idea that "sunna" = hadiths from the Prophet.
In her 2011 book, Imam Shafi`i: Scholar and Saint,
@kecia_ali
summarizes Shāfiʿī's innovative (& controversial) theory:
"Shafi‘i fundamentally reshaped the way sunna was understood, considerably narrowing its scope. First, he defined sunna as exclusively prophetic."
(cont'd)
@kecia_ali
summarizes Shāfiʿī's innovative (& controversial) theory:
"Shafi‘i fundamentally reshaped the way sunna was understood, considerably narrowing its scope. First, he defined sunna as exclusively prophetic."
(cont'd)
Ali continues, describing al-Shāfiʿī:
"Second, he insisted that properly transmitted hadith were the sole means of knowing the sunna. Third, he argued that sunna was co-equal to the Qur’an as a source of law and, in fact, was a form of revelation."
"Second, he insisted that properly transmitted hadith were the sole means of knowing the sunna. Third, he argued that sunna was co-equal to the Qur’an as a source of law and, in fact, was a form of revelation."
al-Shāfiʿī's concept of "sunna" was radically new and widely criticized -- esp. by jurists in Medina and Iraq. Kecia Ali adds:
"Medinans upheld the practice of their community not as a departure from or counterweight to prophetic precedent but as its most authentic embodiment."
"Medinans upheld the practice of their community not as a departure from or counterweight to prophetic precedent but as its most authentic embodiment."
Ali:
"Others, including Iraqis like Abu Hanifa, assumed that Companions’ practices would naturally reflect prophetic precedent, and thus that accounts of their words and deeds were legally authoritative. Shafi‘i dissented on both counts."
"Others, including Iraqis like Abu Hanifa, assumed that Companions’ practices would naturally reflect prophetic precedent, and thus that accounts of their words and deeds were legally authoritative. Shafi‘i dissented on both counts."
Also see Aisha Musa's 2008 book, Hadith as Scripture: Discussions on the Authority of Prophetic Traditions in Islam (pdf online).
Reviewed here by Devin Stewart: ajis.org
Reviewed here by Devin Stewart: ajis.org
Also see Umar F. Abd-Allah's 2013 book: Mālik and Medina: Islamic Legal Reasoning in the Formative Period (pdf online).
(See pp. 102-107 for how Shafi'i differed from his peers when it came to dealing with hadiths from Companions and the generation after them.)
(See pp. 102-107 for how Shafi'i differed from his peers when it came to dealing with hadiths from Companions and the generation after them.)
Anyway... al-Shāfiʿī changed a lot. But so did Abū Ḥanīfa before him.
Abū Ḥanīfa was famous for teaching through a question/answer format where he presented complex, puzzling cases to his circle, challenging his students to find the subtle theoretical principles behind them.
Abū Ḥanīfa was famous for teaching through a question/answer format where he presented complex, puzzling cases to his circle, challenging his students to find the subtle theoretical principles behind them.
Abū Ḥanīfa's circle used Q&A to produce a highly systematic vision of law. @sohailhanif writes that this format "ensure[d] thorough & consistent theorisation" and led to a "new genre of writing: structured legal works that address structured questions of each chapter of the law"
[↑ from "The Questions of Abū Hanīfa" (2020), 1369 dergipark.org.tr]
Hypothetical, analogy-driven questions from Abū Ḥanīfa's circle were later presented to Mālik's students, serving as "a catalyst for the fullest articulation of Medinese…law" (Mālik and Medina, 70).
Hypothetical, analogy-driven questions from Abū Ḥanīfa's circle were later presented to Mālik's students, serving as "a catalyst for the fullest articulation of Medinese…law" (Mālik and Medina, 70).
Anyway:
Reports in the early hadith collections of ʿAbd al-Razzāq & Ibn Abī Shayba generally do NOT show the systematic, theoretical approach to law that Abū Ḥanīfa's circle made famous. Nor do they focus primarily on Prophetic reports -- which al-Shāfiʿī would insist on doing.
Reports in the early hadith collections of ʿAbd al-Razzāq & Ibn Abī Shayba generally do NOT show the systematic, theoretical approach to law that Abū Ḥanīfa's circle made famous. Nor do they focus primarily on Prophetic reports -- which al-Shāfiʿī would insist on doing.
Baugh looks at minor marriage in the early hadith collections of ʿAbd al-Razzāq, Ibn Abī Shayba & al-Awzāʿī (d. 774).
The first 2 collections are both called "al-Muṣannaf" - a generic term for a hadith collection organized by topic (vs. a musnad, which is organized by narrator)
The first 2 collections are both called "al-Muṣannaf" - a generic term for a hadith collection organized by topic (vs. a musnad, which is organized by narrator)
She compares early reports about minor marriage to later legal texts.
Baugh notes some key differences. First, later texts mostly focus on girls, but "early figures did not differentiate between the sexes with regard to the right of the father…to contract their marriages" (228)
Baugh notes some key differences. First, later texts mostly focus on girls, but "early figures did not differentiate between the sexes with regard to the right of the father…to contract their marriages" (228)
Secondly, Baugh observes that "the vast majority" of legal reports in the early Muṣannaf collections "affirm and reaffirm a right to protest and overturn a father’s contract, even for the virgin (no age specified)" (p. 63). Only a minority allow a father to force marriage.
The categorical insistence on getting a daughter's permission for marriage - widespread in the late 7th/early 8th C reports - is sidelined in the opinions of "founding" jurists (late 8th/ early 9th C), who generally agreed that a father could compel his "virgin" daughter to marry
The idea that a virgin daughter *could* be compelled to marry (even if she *should* be consulted) became a standard position in later Sunni fiqh (Hanafis only allowed it for minor virgins). This often gets portrayed as the rule "in Islamic law," as if earlier views did not exist.
This is hardly a new problem. The Syrian hadith scholar Ibn Kathīr (d. 1373) took fellow jurists to task for claiming there was consensus against selling ummahat al-awlad. He disproved this using early reports, including from Ibn Abī Shayba's collection. academia.edu
We need to pay more attention to early Islamic law. Already by the late 8th century, there were significant changes in legal reasoning, use of evidence & substantive rules. This period was not a blank slate, nor was it a "less developed" version of an inevitable madhhab future.
The point of this thread is not to disparage madhhabs, by the way. I believe that deeper study of the early period -- in its own right, rather than as an earlier Pokemon form of the madhhabs -- can yield valuable insights into how the schools of fiqh became the way they are/were.
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