The history of an Islamic school of law : the early spread of Hanafism 9780674014565, 0674014561, 2004101283

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The History of an Islamic School of Law The Early Spread of Hanafism

Harvard Series in Islamic Law Editor Frank E. Vogel, Harvard Law School

Editorial Board Khalid Abou El Fadl, UCLA School of Law William P. Alford, Harvard Law School Peri Bearman, Harvard Law School Charles Donahue, Jr., Harvard Law School Ian D. Edge, SOAS, University of London Mohamed Ali Elgari, King Abdulaziz University, Jedda Wolfhart P. Heinrichs, Harvard University Cemal Kafadar, Harvard University Martin W. Lau, SOAS, University of London Ann Elizabeth Mayer, Wharton School, University of Pennsylvania David S. Powers, Cornell University Frank E. Vogel, Harvard Law School Arthur T. Von Mehren, Harvard Law School, Professor Emeritus Mai Yamani, The Royal Institute of International Affairs, London

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Thejyistory of an Islamic School of Law The Early Spread of Hanafism

Published by the Islamic Legal Studies Program, Harvard Law School Distributed by Harvard University Press Cambridge, Massachusetts 2004

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Library of Congress Control Number: 2004101283

Copyright © 2004 by the President and Fellows o f Harvard College All rights reserved Printed in the United States o f America ISBN 0-674-01456-1

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CONTENTS

Acknowledgements...................................................................................... Preface ......................................................................................................... Chapter One

and Hanafi Biographical Sources ........

1

Chapter Two Iraq ................................................................................. 1. Kufa .................................................................................................. 2. Basra .................................................................................................. 3. Baghdad ............................................................................................ 4. Anbar ................................................................................................ 5. Wasit ..................................................................................................

17 17 30 40 53 56

Chapter Three West Iran ........................................................................ 1. Ahwaz ................................................................................................ 2. Isfahan .............................................................................................. 3. Hamadhan ........................................................................................ 4. Rayy .................................................................................................. 5. Qazwin ..............................................................................................

61 61 63 72 73 75

Chapter Four The Jazira ....................................................................... 1. Mosul ................................................................................................ 2. Raqqa ................................................................................................

77 77 82

Chapter Five Chapter Six

Semi-Hanafts

vii ix

Syria

...............................................................................

87

Egypt

...............................................................................

95

Chapter Seven

TheMaghrib

..................................................................

103

Conclusion ................................................................................................ Endnotes .................................................................................................... Bibliography .............................................................................................. Index ...........................................................................................................

116 121 176 183

ACKNOWLEDGEMENTS This book began as a doctoral dissertation under the supervision of Michael Cook, who also read drafts of all sections of the book that were added to the dissertation. His sound and insightful comments on these drafts gready improved the book. These comments, moreover, and the written dialogue I was fortunate to have had with him while I was his student, taught me an invaluable lesson in meticulous scholarship. In his own, caring way, Cook was a source of inspiration and encouragement, and it is a pleasant duty to acknowledge my deep debt to him. Throughout the many years in which this book was in preparation, Nimrod Hurvitz accompanied every stage of the work. I would like to thank him for always being an attentive listener and for the many con­ versations that we held, during which there grew ideas that found their way into the book. I also benefited from his comments on drafts of sec­ tions of the book. Thanks are due to Laila Parsons and Robert Wisnovsky for the time and care they took in improving the English of early versions of parts of the book; to Maribel Fierro and Miklos Muranyi for their help with the chapter on the Maghrib; and to Christopher Melchert, David Mendes, Frank Stewart, and David Wasserstein for their illuminating comments on drafts of various sections of the book. To David Wasserstein I am grate­ ful also for his patient help with many queries of English. I wish to express my gratitude to Yohanan Friedmann for his willingness to share with me his vast knowledge, and for his unfailing help and advice which put the various obstacles on the academic road in perspective, thus enabling me to overcome them. I am grateful also to Peri Bearman, Associate Director of the Islamic I-egal Studies Program, Harvard Law School, whose painstak­ ing editorial work refined the style of the book, and whose patience and constant readiness to help gready facilitated the task of preparing it for press. I should also like to thank the anonymous, but impressively critical readers I was fortunate to have. I have followed many of their suggestions. Versions of Chapter One and of section 2 of Chapter Three were pre­ viously published in Studia Islamica and Islamic Law and Society, respectively. I thank the editors of these journals for their permission to include this material in the book. I would like to acknowledge the financial assistance I received from Princeton University, the Fulbright Foundation, the Wolfsohn Foundation (the Hebrew University), the School of History (Tel Aviv University), and

v ia

ACKNOWLEDGEMENTS

the Irene Young Endowment Fund for Scientific Publications (The Lesler and Sally Entin Faculty of Humanities, Tel Aviv University). The Insti­ tute for Advanced Studies at the Hebrew University, where I spent a semes­ ter (1999-2000) as a member, provided me with a suitable environment for working on the book, and Liba Maimon’s generous permission to use the facilities of the Institute for an additional semester enabled me to com­ plete it. Finally, I owe an immeasurable debt of gratitude to my parents. But for their constant, determined and unstinting support throughout, this book could not have been written.

PREFACE This book describes the spread of the Hanafi school of law for a period of about a century and a half, from its inception in the middle of the sec­ ond/eighth century until the end of the third/ninth century. The scholars who spread Hanafism usually belonged to one of two cat­ egories: either they were residents of a place where Hanafism prevailed who introduced it in a place where it was unknown, or they were resi­ dents of a place where Hanafism was unknown who traveled to a place where it prevailed, learned Hanafi doctrine there, and subsequendy taught it back home. These scholars were not necessarily Hanafis. The Hanafi school of the second/eighth century was in its very early stage, and did not yet have clear boundaries. Hanafi material, or material that was later labeled Hanafi, already existed and circulated, but many of those who taught or transmitted it were not exclusively Hanafis. They also followed and taught non-Hanafi legal opinions. I call these scholars “semi-Hanafis,” and devote the first chapter to them. The number of such semi-Hanafis decreased as time went on: they appear often at the beginning of the period covered by this book, and considerably less so towards its end. The rea­ son for this is that the Hanafi school’s lines of demarcation were refined during this period. A notion developed of what it meant to be a Hanafi, and part of this notion in the third/ninth century was a tendency towards loyalty to that school alone, and adherence to its law exclusively. Thus the story of the spread of the early Hanafi school which is told in this book touches necessarily (but does not focus) on the story of its formation. The Hanafi school, like the other three Sunni legal schools, was the product of a process that went on for centuries. The various elements that constitute these schools developed and gradually accumulated in the course of this process. Some of these elements have to do with the recognition of the authority of the school’s eponym; some are connected to content, such as the legal views accepted by the school or traditions supporting them; other elements, such as law books or biographical dictionaries, belong to the literary aspect of the school. Others again, such as institutions of learn­ ing, have to do with education, or with the followers of the school and their sense of affiliation to it. In recent years considerable progress has been made towards a better understanding of how these elements devel­ oped and how the schools were formed, particularly thanks to the works of Wael Hallaq and of Christopher Melchert. It is now widely believed that the formative period of the schools of law ended only in the fourth/tenth

X

PREFACE

century, when they acquired all their central elements and reached matu­ rity.1 The question when (and how) this formative period began is equally difficult, and awaits examination. It follows that most of this book describes the Hanafi school before its final consolidation, when it still lacked many (perhaps most) of the elements it possessed in the fourth/tenth century. But some of these elements— among the most important of the school, and those which remain its core— existed and started to spread as early as the second half of the second/eighth century, before any clear definition of the school was developed. One of these elements is a certain recognition of the authority of Abu Hanffa (d. 150/767), Zufar (d. 158/774), Abu Yusuf (d. 182/798), and alShaybani (d. 187/802). That such recognition existed already in the sec­ ond half of the second/eighth century can be learned from and is connected to another early element, namely, the existence and transmission of mate­ rial (legal views or traditions supporting legal views) on the authority of these men. That transmission of such material took place from as early as the second half of the second/eighth century in several locations in the cAbbasid empire is established, in its turn, by various pieces of evidence. We possess information testifying to the circulation in Isfahan in the sec­ ond half of the second/eighth century of traditions supporting Hanafi legal views, under the authority of Abu Hanifa and Zufar. Legal opinions of Abu Yusuf were transmitted by a scholar who moved to Egypt and died in 204/819. A work designated kutub Abt Hanifa (the “books” of Abu Hanifa) is reported to have been read in the mosque of Qayrawan before the year 190/805. We also know that al-Shaybani’s works had started to circulate as early as that time. His Kitab al-Asl, for example, was circulated in Iraq in the second half of the second/eighth century, and was already then transmitted from Iraq to the Maghrib. His al-Jamf al-kabir and al-Jam? alsaghtr were circulating in Egypt, and al-Jdmic al-kabir also in Iraq around the same time. In the first half of the third/ninth century works {kutub) of Abu Yusuf circulated in Mosul, al-Shaybani’s Kztab al-Asl was transmitted by a scholar from Rayy, and al-Siyar al-kabir in Qazwin. The information about the spread of al-Shaybanfs works not only testifies to the recogni­ tion of the Hanafi masters’ authority in the second/eighth century, it also instructs us regarding the doctrine transmitted under the name of these masters. This is not to say that we have a full picture of that doctrine in that time. The history of Hanafi legal doctrine can be constructed only on the basis of Hanafi legal literature, which I did not consult for the writ­ ing of the present book. But the details about the spread of al-Shaybanl’s works give us a concrete, if incomplete, idea about the legal content of early Hanafism, which is an essential thread connecting second/eighthccntury Hanafism with the Hanafi school up to the present.

PREFACE

xi

To these elements of the nascent Hanafi school we may add another one: qadis who followed and applied in court what the sources describe as “the teachings (qawl or madhhab) of Abu Hanifa.” The Kufi qadi and author Waki* (d. 306/918), for instance, documents the appointment in Basra in 171/787 of the first qadi who followed Abu Hanffa’s teachings. The fourth/tenth-century Egyptian historian Abu Sa‘id Ibn Yunus reports, on the authority of a second/eighth century Egyptian, that in Egypt the first qadi who followed the views of Abu Hanifa was appointed in 164/780. It is impossible to know what the exact doctrine followed by these qadis was, but from the description offered by the authors of the third/ninth and fourth/tenth-centuries, or their sources, it emerges that these qadis implemented legal doctrine of (or attributed to) Abu Hanifa, even though in the second/eighth century it may not yet have been called Hanafi. These elements, namely, the recognition of the authority of the Hanafi masters; the existence of Hanafi doctrine and its transmission; and the application in court of law ascribed to Abu Hanifa, thus existed already in the second half of the second/eighth century. Those who transmitted al-Shaybani’s works in second/eighth-century Qayrawan, those who at the same time transmitted traditions under the authority of Abu Hanifa and Zufar in Isfahan, and yet others who applied in the Egyptian court doc­ trine attributed to Abu Hanifa, had something in common. They all rec­ ognized, in one way or another, the authority of the scholars who came to be the Hanafi school’s masters, and the teachings of or attributed to these men. As just said, however, many if not most of these Muslims did not espouse Hanafi doctrine exclusively: they followed simultanously other teachers as well. Was this group of Muslims then something that we can justifiably designate “a Hanafi school,” or even “a Hanafi circle”? In other words, were those who taught and handed down Hanafi law bound together by virtue of this activity into anything distinguishable, though still fluid— something that can be taken as the first stage of a legal school? An answer to this question must rely on one or both of two kinds of evidence. The first is external evidence, evidence that the early Hanafi school was perceived as such by outsiders. We can conclude on the basis of such testimony by outsiders that a distinct Hanafi group existed even if we cannot point to all the characteristics of the group, or understand its nature completely. The other kind of evidence is internal: the fact that those who transmitted or applied Hanafi doctrine shared a sense of affiliation to one circle, or a commitment to follow the Hanafi masters or Hanafi doctrine in particular. The focus of my study dictates that my answer to this question relies principally on the external evidence. As I am concerned primarily with the spread of the Hanafi school, and not with its formation, I have found it

Xll

PREFACE

necessary to study more the external relations of the school than what hap­ pened inside it. Examining on the one hand the obstacles that the spread­ ing Hanafi school encountered and the way and degree to which it overcame them, and on the other hand the support it sought and often found, I have studied the relations of the Hanafi school with the ‘Abbasids, its atti­ tude towards various schools of theology, its competition with other schools of law, or the extent of its acceptance by Muslim communities in different places. All of these subjects shed light on how Hanafism was seen and treated by others. We can talk about “Hanafis” vs. “others” from, I believe, at least the second half of the second/eighth century. That is to say, those who transmitted material under the authority of the Hanafi masters or applied it in court, thereby giving expression to the importance they attached to this material and to its authors (or alleged authors), did form a distinct circle already in the second/eighth century. As normally with new institu­ tions, the contours of this rudimentary Hanafi circle were still blurred at that time, but it was recognizable. The existence of the early Hanafi circle can be learned, for example, from reports that some second-century men affiliated with it were referred to by their contemporaries in terms of their connection to Abu Hanifa or to his doctrine (and opposed by them because of this connection). In Chapter Two I discuss how residents of Basra during Harun al-Rashid’s reign (170-193/786-809) rejected a candidate for the office of qadi because he followed the example of Abu Hanrfa, whose laws, they argued, were different from those followed in Basra. Similarly, a qadi in Egypt in the second/eighth century met with opposition because of his attempt to apply Abu HanTfa’s legal views. Both events are known to us from second/eighth-century infor­ mants from the respective places. The men opposed by the Basris and the Egyptians must have followed particular legal doctrine ascribed to Abu Hanifa. By the time of the mihna,2 in the first half of the third/ninth century, the line between Hanafis and others is pronounced, among other things, by the fact that only (or almost only) the former sided with the official dogma of the created Q ur’an and participated in the implementation of the mihna. The dividing lines between legal schools conformed to those between theological schools to such an extent that, as I mention in Chapter Six, in Egypt those who opposed the official doctrine were indicated by their affiliation to their legal schools—Shafi‘is and Malikis—rather than by their dogmatic beliefs. A decisive external indication of the existence of a school of law whose outlines are well defined is a contest or competition or struggle between that school and another one. It is as a result of such strained relationships that the differences between the schools and their unique characteristics

PREFACE

Xlll

come to the fore, the loyalty to the school is then strengthened, and its boundaries are sharpened. As discussed in Chapter Seven, a major ele­ ment in the social and political history of third/ninth-century Qayrawan is the struggle and tension between the Hanafi and the Maliki schools there, which were clearly distinguished from each other. Under the impres­ sion of the sharp division between these two schools o f law, Muhammad b. al-Harith al-Khushani (d. 371/981), the author of Kitab Tabaqat ‘ulama3 IJnqiya, a major source for early Muslim Qayrawan, devotes separate chap­ ters in his book to followers of each of them. The sense of affiliation with and loyalty to the schools of law also led followers of the Maliki and the Hanafi schools in Qayrawan in the third/ninth century to produce works defending or supporting the doctrine ascribed to the eponyms of their respective schools. In Chapter Seven I also try to give a sense of how much different and more coherent the Hanafi school in Qayrawan was in the third/ninth cen­ tury, particularly in its second half, in comparison to Hanafism there a century earlier. What started as legal doctrine that was brought and cir­ culated in Qayrawan mainly if not only by semi-Hanafis, attracted a group of followers who gradually grew in number, developed a tendency towards loyalty to that doctrine, and came to form a school of law without whose contribution we are unable to imagine the history of Qayrawan in that period. This change was not limited to Qayrawan. In other areas, too, Hanafism underwent a similar gradual transformation. A relatively small number of Muslims who taught, transmitted or applied Hanafi law—of whom many were at the same time associated with other legal traditions— turned into large groups centered more clearly around Hanafi doctrine, and within more defined lines. In the third/ninth century the presence of these Hanafi groups is clearly visible in various areas of the caliphate, and in various realms of the public sphere. Since central Hanafi elements can be discerned already in the sec­ ond/eighth century, I call the group of those associated with these ele­ ments in this century a “Hanafi circle.” The adjective “Hanafi” is justified, as mentioned above, by reference both to recognition of the authority of the Hanafi masters and to the acceptance of doctrine ascribed to them. The term “circle,” rather than “school,” indicates the fact that the border lines of this group are not clear (many of its members are semi-Hanafis), and also that it lacks other characteristics that later made it a school. From around the beginning of the third/ninth century the number of men who are described in the sources as Hanafis, and who are not known to have been connected with other legal traditions increases considerably, while semi-Hanafis disappear almost completely. I therefore usually use the term “Hanafi school” with regard to the third/ninth century, although the trans­

XIV

PREFACE

formation of a Hanafi circle into a Hanafi school is gradual, and cannot be assigned an exact date. * The geographical span of this study is more easily defined. The book cov­ ers the major cities of Iraq and western Iran, the Jazira, Syria, Egypt, and the Maghrib. I have not included Yemen, since too much of the relevant material remains in manuscripts that are not available to me. Neither do I study here the spread of the Hanafi school in eastern Iran; the works of Wilferd Madelung largely fill this gap.3 My description of the spread of the Hanafi school differs considerably from one location to another. This is partly because the school spread and established itself in different ways and with different degrees of success in different areas, and partly because the information we possess on the early Hanafi school in different places is very uneven. For some places, usually those about which local bio­ graphical dictionaries were written and preserved, we know enough to dis­ cern the beginnings of Hanafism in considerable detail. Such, for example, is the case for Isfahan or Qayrawan. O ur information about other places such as Rayy or Qazwin is scanty, being confined to a handful of names of Hanafi scholars or qadis. The Hanafi biographical dictionaries, which are not limited to people from a single place or region, do not help to fill this gap: they devote biographies to numerous Hanafi scholars from some places, but for other places they offer scant information at best. It follows that the chapters of this book, each usually devoted to one location, vary greatly in length and in detail. Some of them are more detailed, and offer a reconstruction, if not always a complete one, of the process by which Hanafism was introduced and established in a certain place. Others are very short, amounting to a mere report of the little relevant information that is available. The picture that emerges from all this is patchy, yet it shows rather clearly the mechanism by which Hanafism spread, who supported or encour­ aged it, what obstacles it faced, and how it overcame them. This picture includes most of the aspects of the spread of the school, but not all of them. Above all, the purely legal aspect is missing. That is, the picture offered here does not show the change in the content of law that must have accompanied the spread of the Hanafi school in its formative period. This deficiency reflects the nature of the biographical dictionaries, which are the main source for this book. Biographical dictionaries provide much information on the non-legal aspects of the legal schools, but very little on the content of their law. As I have said, only by examining legal litera­ ture can this deficiency be overcome, and the description of the spread of the Hanafi school be completed. Evidence for the political aspect, on the

PREFACE

XV

other hand, is dealt with in detail, and one of the conclusions emerging from this evidence is that the ‘Abbasids contributed considerably to the spread of the Hanafi school. This was pronounced, among other things, in their appointment of Hanafi qadis. For this and for other reasons which I explain in the book, the ‘Abbasid selection of qadis in a particular place is an indication of the spread of Hanafism in that place. Therefore, fol­ lowing the discussion of each place I append a list of the qadis there, together with their legal affiliation, if known. As to dates: exact dates have been given according to both the Hijri calendar and the Common Era, but I have generally given only the year of the Common Era in which the Hijri year begins. Approximated dates presented a different problem. When speaking of the second half of the second century A.H., for example, it was not possible to give a Common Era equivalent in the same form, because the two systems do not march in parallel. In order to avoid inaccuracy and the clumsiness of such for­ mulas as “the second half of the second century/the late 760s to the mid­ dle 810s,” I have generally chosen to give the exact Common Era equivalent of Hijri approximations. Thus “the second half of the second century/ 768-815.” I have tried to minimize the use of Arabic terms in the book. Most Arabic expressions are given in English, with the Arabic in transcription alongside the first occurrence of the term. The few terms that do appear in Arabic are explained or translated upon first appearance.

One SEMI-HANAFIS AND HANAFI BIOGRAPHICAL SOURCES

The chapters following this one describe the first century and a half of the spread of the Hanafi school. How do we decide whether a given man was a Hanafi? The answer to this question is very important for the (legal) his­ torian who sets out to describe the school’s spread, yet this answer is not simple. In these early years the boundaries of the school were not yet clear, and it was not always apparent whether a given scholar was or was not a follower of it. Many scholars who had connections with the early Hanafi circle were not Hanafis, but semi-Hanafis. In the present chapter I shall investigate the semi-Hanafis in some detail. In classifying a scholar as a Hanafi or semi-Hanafi we depend to a large extent on Hanafi biographical dictionaries. But in consulting these dictio­ naries we need to consider the possibility that scholars whose affiliation with the school is questionable were included in them because of the com­ pilers’ desire to demonstrate the connection with the Hanafi school of as many scholars as possible. It follows that a study of the semi-Hanafis is related to the history of Hanafi biographical literature. In this study I iden­ tify Hanafis largely on the basis of al-Jawáhir al-mudiyya j i tabaqát al-Hanafiyya by the Egyptian Ibn Abi al-Wafa’ al-Qurashi (d. 775/1373), while quali­ fying and supplementing the information in this source by earlier sources. In this chapter I therefore discuss also the Jawáhir and earlier sources used, their problems, and my approach to using them.

I. Unquestionable Hanafis, Questionable Hanafis, and Semi-Hanafis in the Jawáhir The Jawáhir is the best-known Hanafi biographical dictionary. It was com­ pleted towards the end of its author’s life,1 and contains biographies of more than two thousand scholars, spanning the period from the lifetime of Abü Hanifa up to the eighth/fourteenth century. The book is of immense importance: it registers the Hanafi scholars who were documented in the sources extant in the eighth/fourteenth century, and preserves material about these scholars from earlier sources that are in some cases no longer extant. But while many of the biographees in the Jawáhir were clearly Hanafis,

2

CHAPTER ONE

the affiliation of others with the Hanafi school may be questioned. It is accordingly possible to divide all the biographees in this book into two groups: unquestionable Hanafis and questionable Hanafis. I classify as unquestionable Hanafis those of whom we know to have both studied under Hanafi teachers and to have had Hanafi students, and also those of whom we know to have written Hanafi law books, or to have subscribed exclu­ sively to Hanafi law. Unquestionable Hanafis are, for example, the Baghdadi Muhammad b. Samaca (d. 233/847) and the Basri Hilal al-RaJy (d. 245/859). All the rest of the second/eighth- and third/ninth-century biographees in the Jawahir I consider questionable Hanafis. It follows that the question­ able Hanafi category contains a very wide range of people. With regard to some of them there are evidential problems. Consider, for instance, the case of the famous Wasiti scholar ‘All b.