Aplicación del process tracing al análisis decisional

The Shāfiʿī school is closest in methodology to the approach of ḥadīth scholars as to which ḥadīth it deems acceptable. The Sunnah is known through what is recorded in authentic ḥadīth. It is no accident that most of the pivotal scholars in the development of ḥadīth criticism have been from the Shāfiʿī school.

The Shāfiʿī school accepts isolated authentic ḥadīth (those that have sound and complete chains of transmission) as valid evidence for legal rulings. In the terms of ḥadīth scholars, these are the ṣahīh and ḥasan ḥadīth. Indeed, in the absence of evidence to establish that an authentic ḥadīth has been abrogated, it is obligatory to accept it.90

specification of [the text] with it, because it is effectively a form of consensus.” Ibn al-Qaṣṣār, al-

Muqaddimah fī al-Uṣūl, 104.

86 _{Abū al-Walīd al-Bājī, Iḥkām al-Fuṣūl. ed. ʿAbd al-Majīd Turkī. (Beirut: Dār al-Gharb al-Islāmī,}

1995), 1:274

87 _{Abū al-Walīd al-Bājī, al-Minhāj fī Tartīb al-Ḥijāj. (Riyadh: Maktabah al-Rushd, 2004), 41-42.} 88 _{al-Bājī, al-Minhāj, 229.}

89 _{Ibn al-Ḥājib not only resolves that “it does not stand as evidence”, but also identifies the opposing}

view to be that of the Ḥanafī and Hanbalī schools. ʻUthmān b. ʻUmar b. al-Ḥājib, Mukhtaṣar Muntahā

al-Su’l wa la-Amal fī ʿIlmay al-Uṣūl wa al-Jadal. ed. Nadhīr Ḥamādū (Beirut: Dār Ibn Ḥazm, 2006)

2:845.

90 _{Al-Shāfīʿī writes: “As for what is found in the Sunnah reported by individual narrators wherein it is}

possible for disagreement to exist and wherein interpretation is possible, when such reports come to us from individual narrators, then I would say that the evidence it contains has the force to make us abide by it, so they cannot reject what is stated therein any more than they can reject the testimony of a reliable witness. This is not because there is absolute certainty in the report like there is in the text of the Qur’ān or in a report of the general masses about God’s Messenger. If anyone is in doubt about this point, we would not tell him to repent. We would say to him: If you were a person of knowledge, you would have no right to doubt it, just as you would have no right if you were a judge to offer a judgment except in accordance with the testimony of reliable and trustworthy witnesses. Though a mistake is a possibility, you must pass judgment on the face value of their honesty, and God assumes responsibility over what you cannot perceive from them.” Muḥammad b. Idrīs al-Shāfiʿī, al-Risālah. ed. Aḥmad Muḥammad Shākir (Beirut: al-Maktabah al-ʿIlmiyyah, no date), 461.

In the Shāfiʿī school, unlike the Mālikī and Ḥanafī schools, mursal ḥadīth are not accepted as evidence for legal rulings.91 The early Shāfiʿī theorist, al-Khaṭīb al- Baghdādī writes: “An individual-narrator ḥadīth is not accepted until the integrity of its narrators and the continuity of its chain of transmission are verified.”92 The reason for this is that the unmentioned narrator’s acceptability cannot be ascertained. Even if the narrator who makes this omission is of the highest calibre, there is no guarantee that the narrator made a correct assessment of the reliability of un-named person from whom the ḥadīth was received.93 Shāfiʿi scholars, likewise, do not accept the statements and legal opinions of the Companions as evidence.

3. The Ḥanbali School

The Ḥanbalī school accepts isolated authentic ḥadith as an independent source of law in the same way that the Shāfiʿī school does, and they regard those ḥadīth as possessing the same degree of legislative authority. Ḥanbalī scholars differ from their Shāfiʿī counterparts in accepting mursal ḥadīth94 as well as certain ḥadīth with other forms of weakness in their transmission.95 They also accept the āthār and legal rulings

91 _{al-Shāfīʿī gives a number of stringent conditions for accepting the mursal narrations of senior}

Successors, but these conditions require corroborative evidence that relegates such reports to a mere supporting role. The mursal narrations of the elder Successor Saʿīd b. al-Musayyib were among those most readily accepted, some of which are cited in al-Risālah. However, none of the ḥadīth that appear as evidence in support of legal rulings concerning women’s leadership come from this narrow category of mursal narrations. Al-Shāfiʿī, al-Risālah, 461-464.

92 _{Aḥmad b. ʿAlī al-Khaṭīb al-Baghdādī, Kitāb al-Faqīh wa al-Mutafaqqih. ed. ʿĀdil b. Yūsuf al-}

Ghazāzī. (Dammam: Dār ibn al-Jawzī, 2000), 1:291.

93 _{al-Khaṭīb al-Baghdādī , al-Faqīḥ, 1:292.}

94 _{Muḥammad b. Ḥusayn Abū Yaʿlā al-Farrā’, al-ʿUddah fī `Uṣūl al-Fiqh. ed. Aḥmad b. ʿAlī b. Sīr al-}

Mubārakī (Riyadh: published by the editor, 1993), 3:906.

95 _{Abū Yaʿlā al-Farrā’, al-ʿUddah, 3:941. Abū Yaʿlā explains that the weakness Aḥmad accepts is quite}

limited in scope. He writes: “When Aḥmad says [he accepts] weak narrations, he means weak according to the ḥadīth scholars, because they describe as weak things that jurists are not compelled to regard as weak, like mursal narrations, chains of transmission with ambiguous terms of narration (tadlīs), and a single narrator relating a ḥadīth with additional wording not narrated by the rest of the narrators. This is found in their books: ‘So-and-so is the only one to come with this.’ So when he says: ‘It is weak’, this is what he is referring to. When he says: ‘It is to be acted upon’, he is referring to [what is acceptable] according to the jurists.” This means that the degree of weakness tolerated by Aḥmad is minor. Indeed, Ibn al-Qayyim asserts that the weak narrations Aḥmad accepts would actually be categorised ad good (ḥasan) narrations in the terminology of ḥadīth specialists: “Mursal and weak ḥadīth are accepted if there is nothing else on the topic to take precedence over them, and they are what takes precedence over analogical reasoning (qiyās). He does not mean by weak that which is false (bāṭil) or rejected (munkar), nor what has a suspect narrator in its chain of transmission, for acting upon such narrations cannot be justified. Rather, what he refers to as a weak ḥadīth is a division of what is authentic (ṣaḥīḥ), specifically it is a category of a good (ḥasan) ḥadīth. He did not categorise ḥadīth as authentic (ṣaḥīḥ), good (ḥasan), and weak (ḍaʿīf). Instead, he categorised them as authentic (ṣaḥīḥ) and weak (ḍaʿīf), with weak having many levels. If he did not find on a topic a narration, a statement of a Companion, or consensus which indicted something else, he would act upon this [weak ḥadīth] and

of the Companions as sources of law.96 For this reason, Abd-Allah observes that Ḥanbalī legal theory accepts more textual sources to be valid than any of the other schools.97

These sources are accepted with various conditions and have different degrees of textual authority. However, Ḥanbalī jurists will not resort to analogical reasoning (qiyās) or any other approach to deriving laws until they have exhausted all of these textual possibilities.98 Whereas Mālikī and Ḥanafī acceptance of mursal ḥadīth can be traced back to what was originally a broader and understanding of the Sunnah, one that was inclusive of the practices and understandings of the community, this cannot be said for the Ḥanbalī school, whose jurists have always regarded the ḥadīth as the sole repository of the Sunnah. It is rather that their commitment to textual evidence is so strong that they prefer reliance upon a weak ḥadīth to any exercise of juristic reasoning.

4. The Ḥanafī School

The Ḥanafī school, like the Mālikī school, traces its development back before the time the Sunnah became strictly synonymous with a standardised ḥadīth corpus. This had a similar influence in shaping Ḥanafī legal theory regarding the acceptance of ḥadīth. Like the Mālikī school, a number of restrictions are placed on the use of isolated individual-narrator ḥadīth as a source of law, though the restrictions themselves differ. Many of these conditions reflect the authority that the established practices of the community had in contrast to a individual-narratorhadīth, irrespective of the soundness of its chain of transmission. For instance, a individual-narrator ḥadīth cannot contradict the well-known general axioms of the Ḥanafī school, nor the well- known Sunnah, nor the practice of the Companions and Successors. Significantly, a individual-narrator ḥadīth cannot refer to something that would have to be generally known by the broader Muslim community (ʿumūm al-balwā), especially if the

give it precedence over qiyās.” Muḥammad b Abī Bakr b. Qayyim al-Jawziyyah, Iʿlām al-Muwaqqiʿīn

ʿan Rabb al-ʿĀlamīn. ed. ʿIṣām Fāris al-Ḥarastānī. (Beirut: Dār al-Jīl, 1998) 1:45.

96 _{Abū Yaʿlā al-Farrā’, al-ʿUddah, 4:1178.} 97 _{Abd-Allah, “Mālik’s Concept” 125.}

98 _{Ibn al-Qayyim writes: “If Imām Aḥmad did not find any textual evidence on the issue, nor the}

opinion of the Companions or of one of the Companions, nor a mursal or weak narration, he would then resort to the fifth source of law, qiyās, out of necessity.” Ibn Qayyim al-Jawziyyah, Iʿlām al-

Muwaqqiʿīn, 1:47.

ḥadīth’s ruling is not found to have been expressed by the jurists.99 On the other hand, they treat mursal narrations and ḥadīth with connected chains of transmissions as having equal strength, as long as all of the narrators are reliable and trustworthy who in turn only narrate ḥadīth from other equally trustworthy and reliable narrators.100 They regard the āthār and legal rulings of the Companions as additional sources of evidence for determining and clarifying the Sunnah.101

From the above, we can see that Ḥanafī scholars recognise an inherent uncertainty in individual-narrator ḥadīth. Ḥanafī legal theory places great emphasis on the certainty or uncertainty of evidence. Unlike the other three schools of law, they make a distinction between legal obligations, designating some as compulsory (farḍ) and others as obligatory (wājib). The former are more heavily binding due to their being established with evidence that engenders certainty (qaṭʿ), while the latter rulings are less emphatic due to the uncertainty (ẓann) of the evidence upon which they are

99 _{Al-Kawtharī explains the logic behind these conditions as follows: “Regardless of whether a report}

has a connected chain of transmission or is mursal, a condition for its acceptance is that it does not go against their generally accepted axioms. This is because the jurists exercised every effort to account for all textual sources from the Qur’an, Sunnah, and verdicts of the Companions, until they referred every comparable and agreed-upon textually-supported ruling back to a general axiom that it could be derived from, the general axiom being what all comparable rulings fall under. They did this for every set of comparable rulings, until they had thoroughly examined and surveyed everything. In this way, they developed general principles – which are elaborated in books dedicated to the topic of axioms and divergent rulings – and they used these to critique individual-narratorreports. Whenever a [single- narrator] report contradicted or deviated from these principles, they regarded it to be in conflict with what constituted more firmly grounded evidence, since a principle derived from multiple sources of law is equivalent to a report of the general masses.” Muḥammad Zāhid al-Kawtharī, Fiqh Ahl al-ʿIrāq

wa Ḥadīthuhum. ed. Muḥammad Sālim Abū ʿĀṣī. (Cairo: Dār al-Baṣā’ir, 2009), 35. He also says:

“Another of their principles is to reject individual-narratorreports in matters which would clearly have to be known to everyone and therefore the need to relate it would make the report widespread. The circumstances therefore attested to its falsehood. It is also a condition that the report is well-known by the generality of the jurists.”Fiqh Ahl al-ʿIrāq, 36.

100 _{Al-Sarakhsī invokes the possibility that mursal narrations from trustworthy narrators might actually}

be stronger, because these narrators leave out mentioning their sources only when they have heard the ḥadīth from a large number of reliable sources. He cites statements to this effect from prominent early narrators like Ibrāhīm al-Nakha’ī and ʿĪsā b. Abān. Al-Sarakhsī, Uṣūl, 1:371.

101 _{With respect to matters wherein there is no room for the exercise of reason, Ḥanafī legal theorists}

are agreed that the statement of a Companion is legal proof if there is no contradictory opinion expressed by another Companion. Al-Sarakhsī says: “There is no disagreement among our earlier and later scholars that the statement of one of the Companions is legal proof in matters wherein analogical reasoning (qiyās) has no role in determining the ruling. This includes the determination of quantities that cannot be known through the exercise of opiniuon,. Therefore, we adopted ʿAlī’s statement that the dowry is set at ten silver coins.” As for other matters, he mentions some disagreement about which is given precedence, but favours the view that the Companion’s statement takes precedence over qiyās. al-Sarakhsī, Uṣūl, 2: 110 and 2:108.

established.102 This is unique to Ḥanafī Law. The terms farḍ and wājib are essentially synonymous in the other legal schools. The Ḥanafī school makes an equivalent distinction with respect to prohibited things. The term “prohibited” (ḥarām) is used for prohibitions established by certain evidence, while the term “disliked as prohibited” (makrūh taḥrīman) is used for prohibitions established by uncertain evidence.103

Likewise, Ḥanafī scholars regard any addition to the meaning of a ruling in the Qur’an to be a form of abrogation requiring evidence providing certainly to make such additions.104 A individual-narrator ḥadīth, being uncertain, cannot provide anything that adds to or modifies a ruling in the Qur’an. It can, however, be strengthened by other factors which enable it to do so. One of these is to claim that the ḥadīth should be graded as well-known (mash-hūr), which means that though it begins by being narrated by a limited number of Companions, it subsequently then becomes widespread in later stages of its narration.105

In summary, the Ḥanafī and Mālikī schools set conditions upon the acceptance of individual-narrator ḥadīth that give them greater leeway in rejecting a ḥadīth with a sound chain of transmission if it goes against established general precepts or practices within the school, whereas the Shāfiʿi and Ḥanbalī schools place the final authority in

102 _{A ruling is farḍ if “it is established by evidence which is certain, containing no uncertainty” and}

wājib if “it is established by evidence containing uncertainty, like a verse requiring interpretation or an

authentic individual-narratorreport.” al-Shāshī, Uṣūl, 239.

103 _{The ruling of “disliked as prohibited” (makrūh taḥrīman) should not be confused with “disliked as}

disdainful” (makrūh tanzīhan), the latter being equivalent to the ruling of “disliked” (makrūh) in the terminology of the other three schools of law. It is rather a subcategory of what the other schools of law recognize as “prohibited” (ḥarām). Nevertheless, the expressions of the Ḥanafī theorists sometimes add to the confusion. Ṣadr al-Sharīʿah discusses the discrepancy between the terminology’s wording of the and the actual division of the rulings as follows: “The ruling of being disliked is two types: disliked as disdainful, which is closer to the ruling of permissibility, and disliked as prohibited, which is closer to the ruling of prohibition. According to Muḥammad [al-Shaybānī]: ‘Indeed, [disliked as prohibited] is the ruling of prohibition, but with evidence that is uncertain, in the same way as wājib is to farḍ’.” Ṣadr al-Sharīʿah ʿUbayd Allah b. Masʿūd al-Maḥbūbī, Tanqīḥ al-Uṣūl. (Beirūt: Dār al-Kutub al-ʿIlmiyyah, 2001 – published with al-Talqīḥ), 453.

104 _{Al-Sarakhsī says: “An addition to a text is abrogation, so it cannot be established except with what}

can establish abrogation, and abrogation cannot be established by a individual-narratorreport, so likewise, an addition cannot be established by it.” He also says: “An addition to the text takes the form of a clarification [of the text], but is an abrogation in its actual meaning, regardless of whether the addition is to the [ruling’s] cause or to the ruling [itself].” al-Sarakhsī, Uṣūl, 1:126 and 2:81-82.

105 _{Al-Sarakhsī explains: “It is permissible to use this type of report to establish an addition to the text,}

since the scholars received it with full acceptance and acted upon it. This indicates that it is binding evidence, because consensus (ijmāʿ) occurring in the second and third eras is binding evidence. Therefore, we permit it to establish an addition to the text.” al-Sarakhsī, Uṣūl, 1:303.

the text of the ḥadīth as long as its chain of transmission is sound. Ḥanafī and Mālikī jurists accept mursal narrations – those in which some of the narrators are not mentioned – as being comparable in authority to narrations with continuous chains of transmission as long as the narrators who are mentioned are trustworthy. This is because of their conviction that a trustworthy narrator would not neglect to mention a source unless that source was also trustworthy, or because the omission was possibly due to the large number of sources that the narrator heard it from. Ḥanbalī scholars accept mursal narrations as being of lesser authority than ones with complete chains of transmission, while Shāfiʿi jurists reject nearly all mursal narrations. All four schools of law agree on the principle of rejecting narrations with extremely weak, unreliable, or suspect narrators in their chains of transmission.

The ḥadīth that are cited as evidence in the surveyed legal works will now be discussed in detail. For each ḥadīth, the text of the ḥadīth is given, followed by where it appears in the surveyed works. The authenticity of its chain of transmission is then briefly discussed to provide a frame of reference for the jurists’ potential acceptance and rejection of the ḥadīth on that basis, bearing in mind that different jurists will have been aware of, or concerned with, these considerations to varying degrees, depending on their school of law and the time period in which they lived. Finally, how that ḥadīth is used by the jurists’ in their legal arguments is analysed in detail.

B. A People Who Grant a Woman Authority to Rule Them Al-Ḥasan al-Basrī relates from Abū Bakrah:106

God benefited me during the days of the [Battle of the] Camel with words I had heard from God’s Messenger, after I had almost joined in the fight on the side of the companions of the Camel.107 When God’s Messenger had heard that the

106 _{Ṣaḥīḥ al-Bukhārī (4425) and in a slightly abridged form (7099).}

107 _{This was the faction led by the Prophet’s widow ʿĀ’ishah in opposition to the faction led by his}

cousin and son-in-law ʿAlī b. Abī Ṭālib at the battle of the camel which took place in Basra in the year 656 CE. ʿAlī’s faction was victorious.

Persians appointed Khosrau’s daughter108 to rule them, he said: “A people who grant a woman authority to rule them will not succeed.”