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The Development of Legal Thought in Hanafi Texts

Ya'akov Meron

Studia Islamica , No. 30. (1969), pp. 73-118.

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THE DEVELOPMENT

OF LEGAL THOUGHT IN HANAFI TEXTS

1. Hanafi legal handbooks I ) lend themselves to a threefolddivision: an cie nt, classical an d post-classical. Alth oug hmodern western scholarship advanced this classification 2 )

i t is inherent to the Hanaf i t ex t s an d em anates f rom them .

2. The earl iest Hanafi legal handbook A S L3 )

byS H Y N ~ (died 189/804) is l i tt le more th an a n agglomaration f legal proposi t ions without explanation, arranged in an

Th is s tu dy is dedicated to th e memory of t he la te Professor Uriel H eyd ,who encouraged my ear ly incl inat ions towards Moslem law.

1) By th i s t e rm i t i s in tended to exc lude f rom th e d i scuss ion the whole rea lmof principiology U S U L ) which, as wil l become a ppa rent , does no t helong to th edom ain of legal s tudies . There are , however, Hanafl legal texts , o ther thanhandbooks , which undoubtedly deserve close inves t igat ion, namely the numerouscol lect ions of responsa (F A T A W A ), the l i teratu re on legal formularies S U R O T )as well as the works on legal devices (H IY A L ). Th e s tu dy of th e developm ent oflegal thought in the handbooks seems however to be a prerequis i te for such aninvest igat ion, owing to the subsidiary nature of these speci f ic branches of theHanaf i li t e ra tu re . The same may be sa id of the l it e ra tu re on resemblances andsim ilitudes ( A E B A Hwa -N A ZA IR ) whose jur id ical valu e is ye t to be es tabl ished.Th e rare works on publ ic law ar e of l i t t le re levance to t he develop men t of Hanafil ega l tho ug h t .

2 ) The threefold division, though on sl ightly different l ines,was first suggestedby Professor Chafik Cheh ata . W e have exte nde d his scrupulous exam inat ionof th e Hanif i tex ts a lso to th e th i rd , Post Classical, period and related th e f indingsconcerning all the thre e per iods h is tor ical ly and geographically. This corroboratesProfessor C hehata s conclusions which were based on purely legal dat a .

3 ) Par t ly ed i t ed by Pro fesso r Cheha ta ; a l-ASL, a l QI Sr M u I - AW WA L ,I C I TA B u I - B U Y O ~ u a l - S AL A M , Cairo 1954 . T h e ASL is but one of a series



75EVELOPMENT O LEGAL THOUGHT I N H A N A F I TEXTS

th e books of marriage an d repudiation. W ithin th e bookdevoted to the maintenance obligations there is , furthermore,some kind of order. How ever, th e governing ideas dom inatingthis new order proposed by ABO '1-LAYTH are definitely notjuridical. T hu s he st ar ts his discussion b y listing ten womenwho have no right to maintenance, confusing married womenwhose right t o m aintenance is merely suspended with those whohave no claim against any husband, simply because theirmarriage is null a nd void. I ) Yet ABO '1-LAYTH'S tendencytowards orderliness is noteworthy since this characteristicis to find greater expression in the Classical period.

3. Th e characteristic features of Han afi Ancient law seem toreflect a young sy stem of law , sta rtin g chaotically and developingwit h a n increasing measu re of system atisation. Han afi lawdoes n o t comm ence, however, withA B ~ the supposedA N ~ F A ,founder of th e Ha nafi school (m ad hh ab ). We are no tafraid to ma int ain th a t th e so calledTera of th e found ers ofth e schools of law should no t be considered as th e beginn ingof an evolution. I t is ra th er th e end of it . 2 ) Indeed,even an old and well established system of law may manifestsimilar traits. One such system is Jewish law which prevailedin the close Jewish communities of the same period and thesame geographic region where Hanafi law developed.

Ev er since the codification of Rab bi J u d a h H anasi , composedin Palestine a t th e end of th e second ce ntu ry of th e Christian

Er a, Jewish law had a se t pat tern . This was an abstra ct ,tho ug h casuistic, formulation of legal rules, detached from the irBiblical fou nd ation s an d references. Th is codification iscalled MISHNA. 3 ) The editors of the TALMOD, boththose of t Jerusalem T AL M OD , who lived in P ales t ine ,and those of the Babylonian TA L M U D , who lived in what

1) S . , i b i d . , pp. 160-161.( 2 ) Ch. Chehata, In t roduct ion Genera le au Droi t M usu lm an, Facult6 de Droit

de Paris, Cours de e annee de Licence, 1966-67, p . 10. Later referred to asChehata, Introduct ion .

3 ) M. Elon , In t roduct ion to Jewish Law, edi ted by M Corinaldi ( in Hebrew),Akadmon, Jerusalem, 1968, pp. 41-78.



was later to be called ' I r iq , fol lowed the order established inth e M IS HN A. I n fa ct , t he t er m T A L M ~ Ds f requent lyused n o E d a y s in a s ense co ve rin g b o t h t h e M I W N A a n d t h eT A L M ~ D roper.

Among the changes d iscern ib le in Jewish law af te r the Arabconquest is a progress ive aban do nm ent of t he T almudica lpa tte rn , in favour of new forms. Th e beginnings were mo dest .D u r in g th e U m m a y a d p erio d Ra b b i A H A of S H IV H A 680-752), a native of I R A Q w h ere he s p e n t m o s t o f h i s life , b u tla te r a n imm igrant in Pa les t ine , pu t t o wri t ing lega l d iscussions

in a n unprecedented order. Fol lowing the sequence of th epor t ions of the Pe nta teu ch , read consecut ive ly in the synago gueon the Sa bb at hs , he l inks with e ach of t he m a discussion oflega l problems ar is ing f rom the passage read . Th us Ju da h 'sassu rance to Jac ob th a t he would s tand su re ty fo r h is youngerb ro th er Be n ja m in , o n g oin g do w n to Eg y p t (G e n . X L I I I ,9) .serves as a sufficient reason for a discussion of t h e law of su ret y.

A t the beginning of the 'Abbasid period R abb i YEHU DA E' .

w ho , a s h ea d of t h e g re at Ta lm ud ic al A ca de my a t S ~ R An' I r i q (d u r in g th e y e a r s 757-761) carr ies the t i t le Gaon ,m akes a fur t her s tep in rearranging th e presenta t ion of Jew ishLaw. His book ecided Judgments gives an int imation of anunder ly ing jur id ica l p lan , though he fo l lows to a la rge ex ten tth e order of the TA LM UD . His work was never the lesssuff ic ien t ly d is tan t f rom the TALMUD to ra ise apprehensionsl e s t i t m ig h t e n t a i l t h e t o t a l a b a n d o n m e n t o f t h e TA LMQ D

itself. l ) These apprehensions d id not prevent o thers f romfollow ing th e e x a m p le g iv en b y Ra b b i Y EH U D A Y G a o n .A century la te r a s imllar handbook, en t i t led Great Judgmentswas composed by Ra bb i HIM 'ON Q I YA R A , who lived inBasra, a town which served equally as a center of Hanafilaw.

The process of growing de tachment f rom the anc ien t tex tsreached i ts c l imax simultaneously with the arabization of the

Jew s unde r Abbasid ru le . Arabic replaced Aram aic as thelangua ge of Jew ish legal tex ts . Th e f irs t Jew ish au th or to

1 ) Elon, bid. pp 254-255.



D E V E L O P M E N T O F LEGAL THOUGHT I N H A N A F I TEXTS 7

compose such books, in the Arabic language but with Hebrewcharac ters , is R ab bi Sa adia Gaon 882-942). Born in Egyp the em igrated to Ira q, where he occupied the ven erable posta t t h e Acad emy in S ORA. His wr it ings at te s t to th e improvedsystematizat ion which accompanied the l inguist ic change.This is eviden t righ t from th e beginning of his book on th eLaw of In herita nce . I ) There, he declares that of the threemodes of acquisition, namely: inheritance, purchase, and gift ,his inten tion is to deal only with th e first , which is i tself dividedint o four parts . These he discusses seriatim. This metho dicalapproach br ings to mind the same au thor s order ly m anner inhis philosophical essay Bel iefs and Opin ions The influenceof con temp orary philosophy, mo st nota bly of th e M U TA ZILA ,is hardly questionable as far as this philosophical compositionis concerned. I t therefore seems probable th at the r igorousdiscipline originating in philosophy stimulated systematizationalso in his legal writings. I t may be argued tha t th i s t r endin Jewish law during this period is du e to oth er causes. Th e

restatement of Jewish law simply and concisely may havearisen out of the needs to combat Jewish heterodox sectswho gained s t rengh a t tha t t ime. 2 ) This argum ent , however,is consistent with th e abov e analysis . Since Jewish heterodoxsect s t ended to ass imi la te to a g rea ter ex ten t than the mainbody of Je w ry , Rabbi Sa adia Gaon in his at te m pt s to repelheterodox onsloughts may simply have been confrontingideas prevalen t in contem porary Gentile society. In an y

even t , the new fo rm Jewish l aw was assuming a t th a t t ime in anundeniable fact .

4. Hanafi law in its Ancient period does not offer examplesof highly developed legal thought s imilar to that apparent incontempo rary Jewish law, th a t i s in the t ime of Ra bbi Sa adiaGaon. Should Hanafi texts of a comparable level be disco-vere d, th e d a te of t h e beginning of t h e Classical period would

1) Published by Joel Muller s the n in th vo lume of a u u r e s Complefes de

R . S a a d i a Ben Iosef al F AY Y O M ? Par is 1897.2 ) Elon , ib id . , p . 253.



have to be advanced. W ith o ur present knowledge of th e H anafihandbooks, the Ancient per iod must be considered as las t ing

until the death of A B ~1-L AY TH -i '1-SA M AR QA ND I, a tthe end of the ten th cen tury.

5. Th e Classical period of H an afi law op ens with th e work ofthe outs tanding bagdadien jur is t Q U O R I (died 42811037 .

While in a certain respect his tiny opuscule, entitledMUKHTASAR I ) and also MATN, still bears the imprint ofhe Ancient period, containing no reasons for the proposit ions

of law, his terminology is so improved and his method soadvanced that there is no hesi ta t ion in placing him in the newClassical period.

Already the first scientif ic investigation into Hanafi law,and Moslem law genera lly, ind ica tes Q u D o R f l S super io r ity

in the a rran ge m en t of his legal da ta. a ) H e classifies Co ntrac tsin Hanafi law s tar t ing with Sale . Only af ter having discussedth e contr act of sale, by w hich the greatest nu m be r of r ights aretran sferred , Q U D O R ~he n proceeds to consider o ther con tracts ,conve ying lesser rights. H e is th e on ly Ha nafi jurist to do so.M oreover Q U D ~ R ~ w are of t h e an aly tical fram ew orksint o which th e con cep t of co nt rac t falls. Th is is evid ent fromhis familiarity with the basic distinction between legal acts

and legal facts , known in Roman law as the s u m m a d i v i s i o .The contract is c i ted by QUDoRf as the example of a legalact which, in Hanafi law, depends for i ts formation upon theoral declaration of th e co ntra cting parties. This legal ac t(Q A W L) is comp letely distinguished from th e legal f act(F I 'L )which depends in no wav on the intelligence or will of its

1 ) N o t t o be c o n f u s e d w i th t h e M U L H T A S A R of TAHAWI See abovcp . 74, n . 1 T h e e d i t io n u s e d h e r e is t h a t o f B o u s q u e t a n d B e r c he r, w i th o u t d a t e .2 ) Chaf lk Cheha ta , Essa i d 'une Theorie Generale de [ 'Obligation en Droit

M u s u l m a n , Le Ca i re 936 ( R e p r i n t e d in P a r i s 1 9 6 9 ) p . 11 3 . R e f e r r e d t o l a t e r a sC h e h a t a , Thior ie .



and which th ey cherished along wi th Q U D U R I 'S teachings , asif these two sources were of equ al value. T hu s th e exp lanatio ns

added in th e three Classical tex ts do n ot necessari ly ensure an ysuperiori ty over Q U D ~ R ~S legal thought.Th is c ritic ism appl ies fi rs t and fo remost to S A R A B S f

(died 490/1097), au tho r of th e thir ty-volum e-work enti t ledI M B S ~ T I ) I t i s d i ff icu l t to say however, a t the presents tage of scienti fic research , w hether S A R A K H S ~ actually

onsulted Q U D U R P 'S work, tho ugh he is certainly a ware ofideas contained in i t . SARAKHSf gloses the text ofKITAB-u

I - K A F ~wri t ten by ~ ~ - H A K I M - U1-S HA H ~D (died 3341945).This work served as the basis of S A R A K H S I ' ~ B S ~ T

b u t is in itself a c o m m e n t a ry on t h e e a r l i e s t ~ a n a f i e x t t h eASL of SHAYBANI men tioned earlier. Conseq uently i f

~ A ~ A ~ ~ Z d i s c u s s e she maintenance obl igat ion in a chapter(BAB) contained in th e Book ( K I TA B ) of marriage, onecannot deduce f rom th is fact a lone whether he in tended todeviate from the precedent of A B ~1-LAYTH

an d Q U D ~ J R ~

who alloted a whole Book to th e law of m ainten ance , orwhether he s imply fol lowed what he found in the 'ASL andK A F I

The place granted to the discussion of the wife's maintenanceis significant in the Classical period, because it i l luminates theau tho r 's opinion ab ou t th e source of th e obligation. Th is isshown by < A L A - U'1-DIN-i '1-SAMARQANDf (d ied 53911144)au tho r of the Gifl t Ju r i s t s ( T U H FAT- u 1 - F u Q A H ~ ) . ( 2 )

Although he presents himself as a fervent disciple of Q u D u R ~ ,S A M A R Q A N D ~ ails to Q U D ~ R ~ ' ~ t o th euote referencesource of the ma intenance obligat ion. W hilst for Q U D o R fm aintenance is due to the wife from her hus ban d if she

delivers (SA LL AM AT ) herself in to his domicile , 3 ) forS M R Q N D P m aintenance is due because of th e hus ban d'sr ight of retent ion (H AB S) over her, [a r ight] exist ing b ymarriage . 4 ) does not ment ion marr iage atU D ~ R ~ all

11) Publ ished in Cairo 1324.2 ) Publ ished in Damasclrs 1964.

, 3 ) M C S KHTAS AR p 65.

4 ) Tl T? f F. I , 11/ 216.



83EVELOPMENT OF LEGAL THOUGHT IN HANAFI TEXTS

The theory which K kSA Nf thus advances wi th regard to thesource of the maintenance obligation obviously dictates acertain at t i t ud e towards the relationship between this obligationan d th e co ntra ct of marriag e. An ex am inati on of this pointin his Book of Marriage shows t h a t his insights ha ve ce rta inlim itation s. As is usua l in th e beg innin g of each one of hisbooks , the f irst pa rt contains a sum m ary of i ts structure.

In so doing a t th e beginn ing of his Book of Marriage hedeclares th a t marriage has two sorts of effects: essential ones(AS LIY YA ) an d accessory ones (TAW AB I') . He the n enume-rates the essential effects, without indicating anywhere whichare th e accessory ones. Th e ma intenance obligation whichappears in this l is t I ) is thereby presented as an essentialeffect (H U K M A SL f) of marriage. Only elsewhere, in th eBook of Inte rdic tion , does one discover w h at m us t heK A S A N I S

t rue opinion on this point , namely that maintenance is an obli-gation accessory to marriage. 2 )

Lim itations of this kind do no t overshadow K A S A N I S

extraordinary merit . In fact h is outs tanding s ta tur e hasbeen recognized by t h e first scientific stu d y of Ha nafi law. 3 )

However K A S A N ~ has left no impact on the further develop-m en t of Hanafi law. His nam e is hardly mentioned in th eHanafi works of th e thir t een th an d fourteenth centuries. Inlater periods when he is occasionally cited, his m ethod continu esto be completely ignored.7. This astounding fact calls for further examination of the

historical background of the Classical period in Hanafi law.The activity of the Classical authors, which stretches over aperiod of some two hu nd red years (from th e b irth ofQUDORIin 972 to the death of K A S A N I in 1191) was restricted to arat he r limited geographical area. Th e town of Ba gd ad ,Q U D ~ R ~ ' s place, w as a t t he tim e of his b ir th un de ri r th

( 1 ) BADA I , 111331-2.2) B A D A I , V I I / 1 7 4 D AY N T H A B ATA TA B A n F I M H H U W A

MU AQADA ka l -NAFAQA l B h B - i 1 - N I K h H .(3 ) Chehata , Th to r i e , p . 73 a l -K hS X N l se d i s t ingue au tan t par sa c la rtb que

par sa class ificatio n pro pre. I1 fait figure par t a BADA I reste sans contestele chef-d aeuvre de tou te cet te l it tbrature a



85EVELOPMENT OF LEGAL T H O U G H T I N HANAFI TEXTS

and K A s A N ~ . After an in trod uct ion of a pu rely religiousna ture , R abb i Shem uel sets o ut in full the t i t les of 3 1 chapterscontained in this book and proceeds to discuss their contentseriatim. I ) A considerable Arab influence is discernible,no tab ly in its language. In exam ining th e legal uses of th eArab terms K A FA L A D A M A N and H A M A L A 2 ) RabbiShemuel Ben HofnI states that Arab philologists ( 'uLAMA'-u'1-BALAEA sic ) consider these terms as syno nym s, b u t hetries nevertheless to compare the f irst two with what seem tohim to be equiv alent term s in Jewish law. This comparisonsuggests t h a t R abb i Shemuel Ben Hofn? was aware of thedifferent legal m ean ing sin w h at would otherwise have appearedto be a perfectly straightforward l i teral translat ion . Fu rthe r-more, one would also expect to find Hebrew terms in a texton Jewish law wri t ten, i t i s t rue , in Arabic but us ing Hebrewcharacters. Y et, despite this awareness an d the availabil i tyof Hebrew legal term s, R abb i Shem uel Ben Hofni' ab and on s th ewell established Heb rew term-"MEZONOT" (alim on y), an dsubs ti tutes the Arabic term "NAFAQ A" (expenses).S ) Thispreference for Arabic terminology is probably only a symptomof a far deeper Arab influence. In fact Rabbi Shemuel 'sson-in-law, Rabbi Hay Gaon, testifies that his father-in-law"read widely in the books of strangers". * )

Rab bi H ay Gaon (939-1038) headed the oth er great talmudicalacademy in Iraq, at Pum pedita. Like his father-in-law, headheres to the methodical approach first evolved by Rabbi

(1 ) Only flve chapt ers are preserved in the only manu script discovered so farin the Geniza (Cambridge T.-S. 8. G. 3.). It was published by Rabbi ProfessorS. ASAF in S i n a y IX , 1945, vol. 17, pp. 135-155.

(2) In th e beginning of th e fourth chap ter.(3) The pecuniary connot ation of the word NAFAQA in Arabic is vindic ated

by its use in documents "C" E and F of the consti tut ion of Medina writtenby MUHAMMAD a li ttle a fte r his arrival in Medina in 622, i e . a t the very beginningof Islam. See: R B. Serjeant, The Const itu tion o f Medina in: The Islamic Q uarterlyvol. VII I, no 1, and 2, January-July 1964, pp. 3-16, pp. 14, 13, 10.

( 4 ) See Rabbi Professor S. ASAF, in the a bove mentioned ar ticle p. 140, andin his book in Hebrew The Epoc h o f the Gaons and i ts Liferature Jerusalem, 1955,p. 194.



Sa'adia Gaon, and refers openly to Arabic sources. I ) H e

composed several monographs on various topics in Jewishlaw, the most important of which is theBook o Purchase andSale divided in to six ty gates each of which is subdivid edinto a num ber of ways . In i t , the au tho r covers exhaustivelyan d succinctly th e entir e field of th e Jew ish law of sale. R ab biH ay G aon's mo nographs are rated by Professor Elon as aprototype of orderly legal thought, consisting in excellentlegal definitions and generalisations and in a wonderfully

bright classification of the legal material .2 )

Th e works of R ab bi Sa'adia Gaon , du ring the H anafi AncientPeriod, and of Ra bbi Shemuel Ben H ofni and Ra bbi H ayGaon, the contem porar iesof Q U D O RI, paved the way for theach ieve m ents of M aimonides (1135-1204), whose period ofactivity corresponds with that of K A S A N ~(died 1191).Maimonides brought Jewish law to i ts upperm ost sum m itovershadowing an yth ing writ ten before or after him 3 ) , despitethe fact th a t he did no t belong to the Iraqi geographical region.Born in Spain, he wandered in North Africa, under pressure ofpersecution, reached Palestine, and finally settled in FiitimidEg yp t . H e never s tayed in Syr ia , where the la ter Hanaf iClassical au tho rs, including KA sAN I, lived. The resem-blances between the achievement of K A S A N ~and Maimonides,in the field of law, are nevertheless worthy of attention.

9. The three la te r Hanafi Classical au thors , S A R A M S I ,S A M A R Q A N D ~ n d K A s A N ~ lived n ot in Bagdad , bu t in th eneighbouring cou ntry of S yria, where the H am da nid regimecul tivated the ar t s and the sc iences as ardent ly as the B Qw ayhiddy nas ty did in ' IrSq. The Ha md anids however had to contendwith the Byzantine Empire, their neighbour to the North.In their continuous wars with the Byzantines the town ofAleppo changed han ds several times until i t reverted finally

1) citation by Rabbi Hay Gaon from KITAB-u 1- ULUM of the PhilosopherF A RA B~ ,s pointed out by A. A. Harkavi, Z ik a ro n l e a m a Ge on im in Hebrew),Berlin 1887, p. xxv.

2) Elon, ibid., p. 258.( 3 ) Elon, ibid. , p. 268.



87EVELOPMENT OF LEGAL THOUGHT I N H A N A FI TEXTS

to HamdBnf hands in 975 I ) With the extinction of theHamd2nP dynasty in 1003, Syria was left for about twentyyears under the tottering rule of the FBtimids, whose centerwas in Egy pt . For another s ix ty years (between 1023 and1079) the dy na sty of M IRD A S, of nom ad origin, was predomi-nant in Aleppo, The invasions of the Seljfiqs, who enteredBagdad in 1055, ravaged the countryside, bu t Aleppo und er th eMirdBsils seems to have continued unhindered in its materialand intellectual prosperity. =) The whole of Syria includingAleppo fell into th e ha nd s of th e Seljiiq sovereignMALIKSHAH

(1072-1092), to form p ar t of his va st empire which extendedin leng th f rom K B W a r , a town a t the ext reme end of the landof th e Turk s, to J erusalem , and in width from Co nstantinople tothe Caspian Sea . In this great dom ain all th e main roads weresafe, safe enough for cara van s, even for one or two m en,to travel peacefully and without special protection fromTransose ania to Syria . a ) I t is not surpris ing to learntherefore that S R K S P

lec tu red a t the H A L AW I Y YA

in Aleppo, and later, towards the end of his life, found himselfhis native country, Fargana, a province in Transoxania, inCentral Asia, where he underwent his legendary sojourn inprison.

Two generations later KASANP held until his death 4 ) thesame professorship a t the H A L AW I Y YA 6 ) in the same ci tyof Aleppo, where SA RA KH Sf had to ug ht beforehand. Besidesthis geographical link between the second and the fourth greatClassical author, there is also a family tie between the third,namely S A M A R Q A N D ~nd th e fo urth, his son-in-lawKAsANI.As wedding present K A S A N P received from his father-in-lawthe latter's treatise Gift to the Ju r i s t s ( T U H FAT- u I

FUQAHA,) . K A S A N I ' S masterpiece B D A 'IC '1-SANA'I

1 ) Hi t t i , p . 565 .2 ) II i t ti , p p . 580-581.3 ) Hi t ti , p . 476 ci t ing the b iographer of MALIKSHhH.4 ) IB N Q U T L U B U E A , TA J - u I-TARAJIIW-F? TA B Q AT- i I - H A N A -

F I Y Y A , BaQdad 1962, pp. 84-85.5 ) C . Brockelmann, Geschichte der arobischen Literatur, Leiden 1937-1949,

G I 375.



is presented b y biographers and bibliographers as mere com men-t a ry o n t h i s T U H FA . I t is c la imed t h a t K A S A N I offered

th i s iLco mmen ta ry 7 's a dower for his wife. Proverbially thist ransact ion is comm ented upon by the saying SH AR AH A

TUHFATA-h u wa-ZAWWAJA BINTA-h u I ) (KASANI)c o m m e n t e d u p o n h i s T U H FA a n d ( S A M A R Q A N D ~ )marriedh is daugh ter ( t o h im) .

T he conc entrat ion, or a t least the sojourn , of al l these H anafilegal scholars , with Central Asian surnames, in Syria, andmore precisely in Aleppo, was facili tated by the continuation of

the patronage of the arts and sciences by the regime of theSeljQqids, in t he sam e pa t te rn as th a t of th e preceeding BQway-hfds and Ham dsnis . Despite the fact t h a t th e SeljQq sovereignsthemselves m ight hav e been i ll i terate, as was th e case with bothM A L I K S H A H (1072-1092), an d his f ath er Alp Arslan (1063-72),affairs of s ta te were ru n b y enlighte ned vizirs, of P ersianextract ion , notable am ongst whom isN I Z A M u '1-MULK.

Both before and during KASANI'S l ifetime Aleppo underwent

s ev era l po litical u ph ea va ls . A f te r t h e d e a t h of M A L I K ~ A H ,for one yea r the town rem ained in th e hand s of his son TU TU SH .La ter , between 1095 and 1119, i t was control led by his oth erson R I D WA N . The town was ruled by successive Turkishgovernors , unti l i t was f inally conquered b y Z A N W ~ ofM AW SIL (1127-1146), son of a form er slave of Alp Ars lan.In 1144 z A N M ~nflicted a great defeat upon the crusaders ,the ir first since the ir arriva l in th e region in 1097. By conque-

r ing Damascus zANGHf 's son , NUR-u '1-DIN, uni ted thewhole of Syria un de r his rule. NO R-u ']-DIN 'S general wassent to Egypt , agains t the FBt imids , but only h is bro therSALAH-u 'I-DIN united the whole of Egypt and Syria, esta-blishing th e AyyQ bid dyn asty . More th an a warrior andchampion of orthodox Islam, SALAH-u '1-DIN was a builderan d pa tro n of learning. H e founded schools, seminaries an dmosques in both Egypt and Syr ia . 2 )

1 ) C. Brockelmann, Geschichte der arabi scher ~ Li ter af ur Leiden 1937-1949,I 375.

2) Phillip K . Hitt i istory of S y r i a second edition, London 1957, p . 65.



89EVELOPMENT O LEGAL T H O U G H T IN H A N A F I TEXTS

The crusades cannot be considered as a reason for the extinc-tion of the Hanafi center of learning in Aleppo. Indeed , i t

is during the turbulent t ime of the clashes with the Crusadersthat Hanafi legal thought at tained some of i ts highest achie-vements, represented by the works of SAMARQANDI andespecially K A s A N ~ In fact, inland cities such as Aleppowere never conquered by the Crusadors, though they wereoccasionally attacked. I )

The exp lanation for the extinction of Han afi Classical tho ug htca nn ot be found b y m ere reference to th e political circumstances

in Syr ia a t the end of the twelf th century. Adm it tedly, thefac t tha t KASANi was to ta l ly unknown to the th i r teen thand four teenth century Hanaf i autho rs may be due to problemsof physical com mu nication. How ever, these do n o t explainwhy acquaintance with a Classical text did not ensure thedurab il i ty of i ts legal thou ght. Unlike K AS AN I S work,Q U D o R f s opuscule , having been w ri t ten in Bagd ad, thecapital of the Abbasid Em pire, was transm itted t o future

generations better than texts writ ten in more provincial centerssuch as Aleppo in Syria. B u t this transmission was in let te rr a the r t ha n in spi ri t. Even in Bagdad itse lf, Q U D ~ R T Sh om e c it y, w hen N A S A F ~ (d ie d 710/1310) composed hisK A N Z -u I-DAQA IQ, no d iscernible effort was m ade toarran ge th e legal d at a according to a juridical plan. NASAFTfollowed blindly the Central Asian commentary written byM A R G H ~ N A N ~ Q u D ~ R ~ . n Central Asian the text of

~ a n a f i a wbecame subjec t to re lig ious in fluence , the impli ra -tions of which will be exam ined later. I t m ay be assertedt h a t th e transm ission of Q U D ~ R ~ ~puscule through CentralAsia explains the fossilization of its Classical legal thought.

10. History cannot always provide answers to al l questions,b u t historians m ust a t least be aware of th e problems. F arfrom realizing th e existence an d extin ction of Ha nafi Classical

thought , as i t was shaped in Bagdad and Aleppo, the currentpres enta tion of Moslem law is confined t o a mere re sta tem en t of

1 ) Hi t t i i b i d . pp 59 7-8.



Schacht 's i l luminating findings on the first two centuries ofIslam, immediately fol lowed by vague general isat ions aboutthe state of decadence which preceded the contemporarymo dernization of Moslem law. T h e gr ea t crisis in th e

development of legal thought in Islam in purportedly explainedby the s tory ab ou t the closing of the gates of independ entreasoning ( IJ T I H A D ) . According to this assertion, byth e beginning of th e fo ur th ce ntu ry of Islam (C.900 c .E) t h epoint ha d been reached where th e form ative period of M oham-m ad an religious law ended . M oh am m ada n religious law wasthe n elaborated in detai l. A l i t t le later th e new sta te ofaffairs was sanctioned by the Consensus declaring that sinceth e fourth ce ntu ry of Is lam there have been no more scholarsqualified to derive Islamic law ind epe nde ntly from its sourceswh ich ar e: t h e Q UR 'AN , t h e HA DfT H th eI J M A a n d QIYAS.T his C onsensus h as been t re a te d a p ast at em en t of fact , I )

Moreover it is claimed t h a t th e closure of th e gates is a histo-rical fact . 2 ) I t has been s ta ted , however, th at the t rans i tionf ro m I J T I H A D to TAQLiD, the unreasoning acceptance ofthe final state of the doctrine as laid down for each schoolin i ts recognized handbooks, came about gradually, and therewas no sudden break . 3)

The very existence of the Classical period in the historyof Ha nafi law is th e best refutat ion of this m yth . Th e su m m itof legal thought , a t ta ined in Hanaf i law dur ing the eleventhand twelf th centur ies , p lays havoc wi th the asser t ion that

independent legal reasoning ceased in Islam, ever since theyear 900.

1 J . Schacht, The Schools of Law in: M Khadduri and J . J . Liebesny, Laruin the Middle East Washington 1955, pp. 57-58, p. 74. J. Schacht, Introductionto Islamic Law Oxford 1964, p. 202. Cf. E. Tyan, Methodologie et Sources duDroit Studia Islamica X 1959, pp. 79-109, p. 80, n . 2 .

2 ) S . C. Vesey-Fitzgerald, Nature and Sources of the SHARI A, in: Law in

the Middle East ibid. pp. 85-112, p. 106.3 ) J . Schacht, The Law in: G . E. von G runebaum, Uni ty and Variety in rMuslim

Cicrilization Chicago 1955, pp. 6 5-8 6, p. 77. Professor Schacht repeats the sameidea, though in a milder form, in his Introduction to Islamic Law Oxford, 1964,pp. 70-71.

I



DEVELOPMENT O F LEGAL THOUGH T I N H N FI TEXTS 9 1

Th e m y th of the closure of the gates of indep end ent reaso-ning' ' is generally accepted, because so far th e Classical lite ratu re

has been practically discarded. I t i s thus mainta ined thatfrom th e te n th centu ry on ward th e role of jurists was th a t ofcom me ntators upon th e works of th e pas t masters . I ) Thisconsisted mainly of a succession of increasingly exhaustivecomm entaries upon the works of t he f irst systematic exp one ntsof th e doctrine such as.. . Au thors, almo stA Y B A N ~witho ut exception, betraye d a slavish adherence, no t only tothe substance but a lso to the form and arrangement of the

doctrine as recorded in th e earlier writings . 2 ) Thesegeneralisations, which may apply to Post Classical Hanafil i terature, a s we shall see, are comp letely witho ut foundation w ithrega rd to such C las s i ca l au tho r s a s QUDoRf , SAMARQAND~and KAsAN~. Their independent arrangement of the doc-tr ine, their original argu me nts, as well as the ir ev er developingterminology all refute the accusations of slavishness.

Recognit ion must, however, be given to Schacht for having

qualified th e va lidity of th e closure of th e gates the ory b ypointing ou t t h a t the doctrine of each school is to be foundn ot in th e works of the old masters b u t in later handboo ks;for having recognized that the details of the growth of thedoctrine in these hand boo ks still rem ain a sub ject for scholarlyinvestigation 3 ) and th a t they conta in abs t rac t sys temat icconstruc tions which represent th e mo st technically juridicalp a rt of th e Islamic legal tho ug ht ; and finally for havin g

realized th a t these essential asp ects of M oslem law still remainto be investigated . 4 )

11 Contrary to current opinion, the break between Classicalan d decad ent law is a sha rp one. F a r fetched casuistic cases,mainly taken from the sphere of religious duties, however

1 ) N J Coulson, A History of Islamic Lam, Edinburg University Press, 1964, p. 81.2) N J Coulson, A History of Islamic Law, ibid. , p 8 4 .3 ) J Schacht Introduction io Islamic Law, ibid. , p. 7 1 .4 ) J Schacht Introduction, ibid. p. 72.



amusing they m ight seem to a W estern m ind, I ) prove nothingas to th e develop men t or decadence of legal thou gh t. T hedecadence should be gauged and is indeed recognizable, byreference to legal notions, as they find expression in the arran-gem ent of th e doctrine, in specific arg um enta tions , and inrules governing juridical reasoning.

A t t h e t i m e t h a t K A s A N I , in Syria, at tained the climax ofIianafi legal thought, decadence was heralded in Central Asia.T he roots of t h e crisis pro ba bly go ba ck far earlier. I t is possiblet h a t ABU I -LAYTH7 whom we considered above as the last

au tho r of the A ncient period, is in fact a fore-runner, in C entralAsia, of the phenomenon which we detect clearly in that regiondu ring the lifetime of K A s A N ~ . If this is the case, i t wouldseem that the Classical law which blossomed in the FertileCrescent of th e Middle Ea st , nam ely in th e cities of Bag dadand Aleppo, dur ing the e leventh and twelf th centur ies , had nobranches in Central Asia, where Ancient law turned directlyinto Post Classical, that is decadent, law. However, biogra-

phical information about ABU I-LAYTH being scanty, 2 )

and other texts of that region, dating from the same periodhaving as yet not been published, we are unable either torefu te or confirm this hypothesis.

The con temporary of K A s A N ~ , herald ing the Po s t C las-sical period in Cen tral Asia is B U R H A N -u I-DIN -i 1-

M AR GH iNA Nf, au tho r of d ied in 5931t he H ID AYA , who1197 in SAMA RQAN D. The peculiar tu rn taken by th is

au th o r is reflected in his arr an ge m en t of th e do ctrine. H eis the first Hanafi author to present the discussion of mainte-nance obl igat ions as a chapter incorporated in to the Book ofRepudiation. n i tself this change is no revolutionary inno-vat ion. The HIDAYA was wri t ten as a commentary onQ U D o R i s opuscu le . Al ready in th is la t te r work the Bookof Maintenance followed im m ediately a fte r th e Book o f Rep u-

(1 ) Coulson, o p c i t . p p . 81-82.12) Neither Brockelmann ( G I 195-196 S 1 3 4 7 nor Schach t ( ABC 'I-LAYTH

In E. nor an y one of t he Arabic biographies mentioned b y t he lat t er do not

state where ABC'I-LAYTH was born, where he lived or where he died.



9EVELOPMENT O F LEGAL THOUGHT I N H A N A F I T XTS

diation, so M A R G H ~ N A N ~ simply changeh a t h a d t o t h eti t le of th e di sc u ss io n o f the maintenance obligations fromBook into Chapter an d the merger was accomplished.

Compared with Q U D ~ R ~ S work the only other modificationintroduced by M A R ~ I N A N I s the transfer of several ofQuDORf's sentences to a different place, near the end of thech apt er, where the y form an indep ende nt section (sing.FASL). One of these sections treats the questions of thewife's lodging and that of her maintenance in case of absenceof the husband. The rules concerning maintenance duringthe wainting-period after termination of marriage form aseond section a t the end of M A R W fN A N f ' s d iscussionof the wife's main tenance, whilst in Q U D O R i's opusculethis sub ject was dea lt with a t the beginning of his Book ofMaintenance. I t i s never theless to be noted that even whereMAR GHfNANf does d isplace several of Q U D ~ R I ' Sentenceshe d o e s n o t dare to change their wording. This s lavishnesscontrasts vividly with the spirit of independence which ani-ma tes the Classical tex ts. SAM ARQA NDf and K K S A N I

in Syria suppress entire chapters and reconstruct others, theyadvance a new terminology and inaugurate a new systemati-zation. N oth ing of all th is is to be fo un d in th e wo rks ofMARGHfNANf and his successors.

he new form adopted by the Classical texts has its implica-t ions on legal thou ght . From M A R G H ~ N A N I S ime onw ardsthe place occupied by the discussion of maintenance can nolonger be adduced as proof of the author's opinion about thesource of the maintenance obligation. MARGHfNANf andhis successors associate this discussion with thatofrepudiation.This arrangement of the doctrine may be justified on practicalgrou nds; th e m ainte nan ce obligation becomes a litigious problemwhen relat ions between husband and wife deteriorate, andrepudiation looms in the background. Repud iation can,however, by no means be considered as the source of the obli-gation. The maintenance obligation exists even when thereis no trace of repudiation.



12. Slowly but steadily the Post Classical authors lose sightof the source of the obligation. The earl ier ones amo ngst the msti ll do refer to this ab stra ct problem. Try ing to clarify thedelicate question of the relationship between the maintenanceobligation and the contract of marriage, M R G H ~ N N ~

presents the former as th e aim (MAQSOD)of th e & trac t ofmarriage. I ) B A B A R T ~ , n 'IrAqi who t rave lled to Syria andimmigrated to Egypt, where he died in 78611384, describesmarriage as the remote cause (SABAB) leading to (Y U F D IILA ) the direct or effective cause ( 'IL LA ).2 ) The effectivecause ( 'IL L A ) giving rise to the maintenance obligation is theretent ion (now termed I H T I B S and no t HABS 3 ) ) of the wifeby her husband . IBN-u ' I -HUMAM,an Egyptian who died in1457, offers the same analysis, but somewhat modifies theterminology. He considers the marriage as the remote cause,bu t calls i t ' ILLA BA 'fDA , and not SABAB. He also agreeswith B B R T ~ that the retention of the wife by her husbandis the direct cause of the maintenance obligation, but instead

of calling i t 'I LL A he describes i t as M U ' T H I R ~ ~ ~ - D H A T .4This Pos t C lassical ve rb iage is s t r i c t l y o f no v x e from

a juridical p oin t of view. I t is even misleading, becau se, as weshall see, the contract of marriage cannot be considered as thesource of th e obligation eith er directly or indirectly. Th ecommon denominator of all these terms in their origin in the

1) H I D A Y A , H L B^ Edi t ion 135511936, vol. 11, pp. 30 , 34 , 35 . T h eterm MAQSUD is to be found la ter on in the Post Class ical per iod, e . g . in IBNN IJ J AY M' s a l - B A H R - u I - R A I Q(see i n f ra , n. 8 0 ) vol. IV, pp. 180, 184. Howeverit was in use already in the Classical Period byK A S A N I (ana lysed by Y . Li n an tde Bellefonds, Tr ait e de Llroit Il.lusulrnan Co mp ar e, The orie Generale de I ActeJu r id ique , Paris 1965, p. 295. Also B A D A I I - S A N A I , IV /194 , ci ted by dcBellefonds, o p . c i t . ,p. 2 9 6 . Eve n earl ier in th e Classical period i t is mentioned byS A R A E S I ( M A B S U T , V/192 , where he rejects i t , and V1188, 191) bu t a d i s -t inct ion must be made between i t s use in a purely etymological sense, and i tsuse as a technical term.

( 2 ) I N A I A , in t.he margin of FAT H - u I - Q A D I H , A M I R I Y YA Press, Cairo

1316, vol. 111, p. 334. For a deflnit ion of ' ILLA see Chehata, Introduction,p 55 , 89 and see infra p . 95, n. 1 . For a different meaning of this term seeSch ach t , O r i g in s , o p . c i t . , p. 125.

3 ) Cf. sup. , 6 p. : n. 3, p. 8 2 an d n . 1

4 ) F AT H - u 1 - Q A D Z R , o p . c i t . ,1111348.



95EVELOPMENT O F LEGAL THOUGHT I N H A N A F I T XTS

science of principiology (USOL). I ) Indeed the search forcauses , as exemplif ied by the ample treatment given by the

~ S o ~ i s t P A Z D A W ~ (died 482/1089) to not ionsu thor theof SABAB and 'ILLA, 2 ) was the great preoccupation of theau th or s of treatie s on USO L. 3 ) In an e ffor t to a t t r ibu teth e propo sitions of th e La w to div ine origins, fiction wasdeveloped, according to which these legal propositions arenothing b u t branches ( F U R o t ) of sacred roots (USO L) .According to th e ~ S o ~ i s tay of thought a legal propositionmay have not only an immediate cause, which may sometimes

be i ts truly legal source, but also some other more distantcause, sanctioned by divine auth or i ty. 4 ) It is not fanciful toperceive here the influence of Greek philosophy, and the inspi-ratio n of th e Aristotelian distinction between prim ary , second aryand final causes . 5 )

Th e qu est for th is species of causes comes u p aga inst oneof the most hallowed precepts of the discipline of Law, that isthe existence of one single norm dominating an infinite variety

of legal propo sitions em an ati ng from it. T h e oneness of th isdom inating norm is a cond it ion necessary t o avoid contradictionbetween two or more proposit ions emanating from the samenorm. The legal norm mu st also hav e universal application,so as to exclude any conflict with other proposit ions stemmingfrom a different, co-existing, legal norm.

In the Post Classical period no Hanafi author would suggestt h a t the m aintena nce obligation is do minated by a single idea

such as ~~-&HARAJ DAMAN AN proposed by K A S A N I

( 1 ) De Bellefonds ( i b i d . ,p . 2 9 5 ) r ightly says tha t MAQSOD is a word s temm ingfrom l'ceuvre des specialistes en m&thodologie , and that S AB AB , in the technicallanguage of the specialists in USOL , is the act or rule which gives rise to a right oran obligation (d e Bellefonds, o p . c i t . , p . 290) .

( 2 ) For an appreciation on M A Q S O D see de Bellefonds, i b i d . , 11301, and onS A BA B, i b i d . , p. 290. A similar appreciation of ' ILLA in: Ch. Chehata, Logique

Juridique et Droit Musulman, Stud ia Islamica, XXIII, 1965, pp . 5-25, p . 2 1 .3) L. Milliot, Introduction l g tude d u Droif Musu lman , Paris 1953, p. 212,

and also, pp. 217, 218, 219, 242.4 ) Milliot, o p . c i t . , p . 220.5 ) Milliot, o p . c i t . , pp . 256, 2 5 7 .



du rin g th e Classical period. Ind eed du rin g the P os t Classicalperiod casuis t ry, enhanced by U So Li st tho ug ht , a t ta ins unpre-

cedented extrem es. The search for th e guidin g principleunderlying the various propositions of the Law is progressivelyaband oned . Ins tead , recourse is ha d to responsa (FATWA)collections. Th ere. Han afi auth ors find more an d more newcases, frequently involving trivial detail, which they use aspremises for deductions by way of anology, which is the onlyform of legal reasoning permitted by the USUL. Howeverlegal thought was bound to go astray even in this limited

dom ain allowed to i t by the U S~ TL . In the absence of an yguiding principle the Post Classical authors could not knowon which premises th ey could build the ir analogies. Th us ,being unaware of the legal principle by virtue of which thewife has her right to maintenance, IBN A B I D ~ N(a Syrian,died 1836 , the last great Hanafi author, compares her witha slave-w om an. Citing two collections of responsa I) IBN,i\BIDfN points out that a slave-woman is entitled to main-

tenance from her husband even if she leaves the matrimonialhome in order to work a t her master s place. On the basis ofthis premise IBN A B I D ~ Nargues a fortiori that when a wifegoes ou t to work she is enti tled to maintenance from he r husb and,since her righ ts as free wom an are gr ea ter th an those of aslave-woman. Yet, had IBN A B I D ~ Nconsidered this ques-t ion in the l ight of the legal principle enunciated by K A s A N ~ ,he would have surely arrived at a very different conclusion.A I - K H A RA Jbil-DAMAN, profit follows responsibility, means,n the context of the maintenance obligation, that the wife

receives he r ma inten anc e in con sideration of a loss which sh esuffers an d for which th e hu sba nd is responsible. This lossis effected by her confinement in th e hu sba nd s home. Inth e case of th e wife going o u t to work aq d , hence, earnin g herliving, this loss does no t occur. Th e hu sba nd is therefore no tresponsible, and need not pay maintenance to the wife. 2 )

( I ) The H I N D I Y Y and the TATr i K K H A l Y I Y YA , cited respectively onp p . 1001 a nd 100'2 of R A D D - u I - A f U H TA R ,B f i L A Q , 1284/1864, vol. 11

(2) The precedent of the slave-woman s inapt to serve as a premise for thisanalogy also for th e simple reason th at the right to leave her husband's horne



9EVELOPMENT O LEGAL THOUGHT I N H A N A F I TEXTS

In other words, the premise concerning the s lave-woman ledIBN AB IDiN to a wrong deduct ion .

Moreover, IBN A B I D ~ N is inconsistent when he allotsmaintenance to a woman going out regularly to work, whilerefus ing i t , on the o ther hand, to a woman going out casual lyto visit he r parents . He re, again, this conclusion is the resul tof a n ana logy based on a false premise. IBN A B I D ~ N Sargumentat ion runs as fol lows: in the same way as no main-tenance is due to the woman who lef t her husband in order tofulfil th e religious d u ty of pilgrimage, so no m ainte nan ce is du e

to a wife going out to vis i t her parents .I )

This analogicalconstruct ion is faul ty because i ts premise is an exceptionto the pr incip le governing the maintenance obl igat ion , andanalogies must not be buil t on exceptions. 2 ) Accordingto this principle, the wife, even on pilgrimage, should havebeen enti t led to maintenance, because the loss affect ing thewife an d entai ling th e h us ban d s responsibil i ty, does not ceasewhen she is on pilgrimage. Ind eed , K A s A N ~ ,dur ing the

Classical period, th ou gh t th a t the wife is ent i t led to m aintenan cefrom her husban d during her vis its to her paren ts . S)

We thus witness the ever deter iorat ing cr is is of the PostClassical law. U nd er th e influence of th e U S O L extraneousnon-juridical eleme nts infiltrate int o th e analysis of th e source ofth e obligation. Their s ter i l i ty f inally resul ts in a to tal ab an-donment of all investigation into the source of the obligation.New prob lems are no longer solved in th e light of a legal no rm ,

does not belong to her, but to her master. The master lends his slave-womanto her husb and for certain periods, at t he end of which th e maste r exercises hisright to receive her back. As an y othe r lender, th e master can reclaim her evenbefore th e period of t he lendin g elapses.

(1 ) RADD, o p . c i t . 1111028.(2 ) SHAF I'I's most impo rtant methodical rule regarding th e use of QIYAS

is that QIYAS cannot be based on a special case which constitutes an exceptionfrom a general rule; in other words th at exception cannot be extended b y analogy.Schacht, rigins pp. 123-124. By th e way, here lies SHAF I'I'S great weakness.The general rule mentioned here is a purely rational rule but F A F I ' I admitsno rational rules because they do not stem neither from the QURAN nor fromth e H A D ' f Z n or from th e I J M A .

(3) BADA I , IV/22.



99EVELOPMENT O F LEGAL THOUGHT I N H A N A F I TEXTS

I t cannot be at tr ibuted to the Consensus (IJMA'), preciselybecause th e different Moslem schools are a t variance on thispoint. Nor does analog y acc ou nt for this difference. F a rfrom restr ict ing themselves to an analogy based on a textfrom the QUR'AN or the SU NN A, the Hanafi Classical autho rsproduce arguments appertaining to pure juridical technique.S A R A K H S i I ) 2 ) and K A S A N ~ explainSAMARQANDfthat the maintenance obl igat ion cannot be considered as par tof th e co nt rac t of marriage. W hilst th e S H A F I ~ juristsm a in ta in t h a t a s yn alla gm a tic c o nt ra ct s u c h z t h e c o nt ra ctof marriage, may contain two considerations (sing. ' IWAD)in exchange for one object (M U'A W W ID), the Hanafis upholdthe principle that in exchange for one object there can be nomo re th an one single consideration. Since th e dow ry isundoubtedly the consideration in the contract of marriage,maintenance-according to th e Hanafis-must be excludedfrom this con tract . A husb and who fails to m aintain his wifedoes n o t infringe th e co ntra ct of marriage , because th e obligation

to ma intain is alien to this c on trac t , which in itself does no tsuffice to impose upon the husband the obligation to maintainher. Fo r the same reason fai lure to ma intain can no t serve asvalid gro un ds for rescission of th e co ntr ac t of marriage. Inthe light of this analysis one can better understand the effortsof H ana fi Classical au th o rs to d iscover th e source of t h e main-tenance obligation outside th e orb it of t h e con tract of marriage.I t stresses once mo re th e futility of P o st Classical H ana fi

efforts to at tach the maintenance obligation to the contractof m arriag e, by th e use of usQ list terminolog y.

Yet, the first Post Classical author, M A R G H ~ N A N ~ ,s stillawa re of th e implications of th e H anafi str uc tu re of th e co ntra cton th e m aintenan ce obligation. He, as well as his Eg yp tiancom men tator IBN-u '1-HUMAM, more than two centuries later,st i l l ci te the Hanafi opposit ion to the SHKFI'I constructionof th e co ntra ct. ( ) Echoes of this oppo sition ar e to be found

1 ) M A B S ~ T ,o p . c i t ., V/184-5 .2 ) T U H F A , o p . c i t ., 111220.3 ) B A D A T , op. c i t . , IV/16.4 ) H I D A YA , o p . c i t . , 11/30, FAT H , o p . c i t ., I I /325.



even as la te as the middle of the s ix teenth century, in thevast encyclopaedic compila t ion of the Egyptian author IBN

NUJAYM (d ied 97011563). I ) The mention of this essentialpo in t by IBN NUJAYM, and perhaps a l ready by IBN-u'1-HUM AM, is however no more t h an a detail in th e m ass ofc i tat ions , mainly f rom responsa, a ll me an t to cover the sub jectof th e wife's mainte nan ce, n o t by establishing one single ruledomina t ing i t , bu t s imply by enumera t ing one by one everyconceivable difficult problem . Th e m entio n of th eBAF I I

doctrine is certainly no longer a me ans to stress th e v ery different

guiding principle which should govern the Hanafi practice.On th e con trary, Hanafi pract ice is assimila ted to H A FI ' ido ctrine . In co ntr ast w ith Classical law, where one findsdiscussions a iming to prove t h a t ~ A F I ~ himselfaseson very different premises when he g ran ts divorce to adeserted wife, j 2 Post Classical law cites numerous collectionsof responsa to t h e effect th a t , a t least in certain circumstances,a Hanafi deserted wife may very well obtain a divorce from a

W A F I I judge. 3 ) Furthermore, one of the preoccupationsof Post Classical authors is the question whether the Hanafiwife should address herself to a B A F I ' i o r to a HANBALfjudge, in order t o o btain th e desired effect.

I t is thu s clear how, concu rrently with th e decadence oflegal th ou gh t, borderlines betwee n th e so-called schoolsof Law (MADHAHIB)became ob scured. 4 ) This phenomenonca n n o t be dissociated from th e process of grow ing usiilist influ-

ence, which was described earlier by pointing t o t h e infil tration ofusQlist term s into Ha nafi legal arg um en tation s. T he theologicalbel ief that Divine Wil l d ic ta tes , through the QUR'AN,H A D f T H , I J M A and Q I Y & all legal rulings down to their

(1 ) A L - B A H R - u i l - R A I Q ,Cairo 1916, IV/180.(2 ) E. g. M A R S U T , o p . c i t . V/190, 191, 192.13) The scholars of S A M A R Q A N D , in Central Asia, seem to be the earliest

authority to recommend this course ( I N AYA , op. cit . , II/331). See also: F ATH,o p . cit . , III/329-330. B A H R , o p . eit., IV/217, R A D D , o p . cit . , II/1014-5.

(4 ) The modernists are , therefore, not t he first ones to disregard the logicalnecessity of abiding by one school in an y one particular ac t or transac tion.C f Schacht, In t roduct ion , p. 68, n. 1.



DEVELOPMENT O F L EG A L THOU HT I N H A N A F I TEXTS 1 1

minutest deta i l , finally p u t th e teachings of all th e schoolson the same footing. Th e differences between th e schoolshav e conseq uently been reduced to th e ran k of mere details .According t o th e usQlist tho ug ht, the fact th a t al l the schoolsderive their rulings from the same four sources, excludes thepossibility of a contradiction in principle between the schools.Hence mu tu al borrowings are, if n ot recomm endable, a t leastpossible.

14 The most severe damage inflicted upon legal thought

by the U S ~ L nvolves th e str uc tu re of th e legal norm . Thiscan once again be demonstrated by reference to a specificargumentat ion.

Hanafi doctrine in the Classical period suggests two possibletheories, each destined to explain b y itself th e infinite diversityof legal rulings bea ring up on wife's m ainte nan ce. One of thes etheories, upheld by HA Y BA NI , is preferred by th e m ajor ity ofHanafi au tho rs whose writings have come down to us. I ts

clearest exposition is found in K A S A N I S treatise, where hepresents i t as depending on the principle of al-KH AR AJbil-DAMAN , pro fit follows respo nsib ility. I ) As far asthe source of the obligation is concerned there are indeedtwo t ra i ts common to b oth the maintenance obl igation and th eprinciple inherent in the saying al-KHARAJ bil-DAMAN.n th e first place no co nt rac t is to be found a t the origin of

either the m aintena nce obligation o r th e principle of al-K H A RA J

bil-DAMAN. T he origin of th e obligation m u st th u s beat t r ibute d to some idea othe r tha n th a t of a contract . Secondly,the source of the obligation cannot be attributed to a formaltort, because Hanafi law recognizes only two categories ofto r t , 2 ) neither of which can be considered as including them ainten anc e o bligation o r the principle of al-E(HA RA J bil-D A M A N . Stemming neither from a contract nor from a

1) See sup., 6, p. 8 nn. 2 3.2) I T L F destruction) and G H S B usurpation). See: Ch. Chehata, L a

theorie de la responsabilite civ ile dan s les systdrnes juridiques des pay s du Proche-Orient in: Revue Internationale de Droit Compare X I X No. 4, Octobre-DBcembre1967, pp. 883-915, pp. 884-896.



tort , the Hanafi maintenance obligation must originate from atota lly different idea. This is, in ou r opinion, th e idea developed

in Greek law under the name of synallagma. I ) I t s s ta r t ingpoint ac tua lly was th a t of responsibility for m aterial dam agebut i t developed into an independent concept ion which, interm s of com parative law , serves as a cou nterbalan ce to th eRoman contractual obligation. 2 ) W hilst for the Greeksa t a l l t imes synallagma meant nothing but 'a re la t ionshipof civil responsability', so that Aristotle, for example coulddescribe tort s as unv olun tary synallagma ta ,( 7 the Romans

based the contractual obligation on the binding force of thepromise creating th e obligation. I t seems, however, t h a tin the most ancient Roman law an idea equivalent to thesynal lagma did exist. The sam e is claimed w ith regard toancient English law, and, with somewhat greater certainty,also with regard to Germ an law. I t plays a role in the cunei-form juridical sources as well as in Ancient Egyptian law.The synallagma m ay therefore be considered as the universal

counterweight to the Roman contractual obl igat ion. * ) Toour mind he principle conveyed in the saying a l -K H A RA Jbil-DAMAN, in the context of the maintenance obligation,appertains to the same basic idea as the Greeksynal lagma.W e permit ourselves, therefore, to designate H A YB A N I'Sund erstand ing of the Han afi m aintenance o bligation, as i t iselucidated by KAsANI, by the Greek termsynallagma.

1 ) H J Wolff, L a Struct ure de I Obligation Contractuelle en Droit Grec, in:Revue In te rnat iona le de Droi t F r a n ~ a i s t E t r anger, 1966, pp. 569-583.

2 Professor Schacht has very well foretas ted the exis tance of th esynallagmaby discerning th e l iabil ity arising from non -perfo rma nce of a con tract whichis reduced to l iabi l i ty ar ising from tor t -a t race of archaiclegal reasoning (Sc hac ht ,

Introduction, p. 148).3) Wolff, ibid. , p. 577. Aris to t le ' s notion of th e synal lagm a is the sub ject

of a paper by Constant in Despotopulos in :Archives de Philosophie de Droit, To meX I I I , Sur les notions du Contrat, Paris , 1968, but th is paper does not show the

extract ion of the synallagma from the not ion of tor t .4 ) l a fo rmat ion du d ro i t con t rac tue la part i r d e I 'idee de la responsab i l i te

pour dom mage s mater iels semble avoir Bte la con trepa rt ie , peut-8t re universelle ,de la solut ion romaine qui fa i t sor t i r le droi t contractuel de la force obl igatoi red'une promesse (Wolff, ib id . , p. 582) .



DEVELOPMENT OF LEGAL THOU HT IN HANAFI TEXTS 103

By virtue of S H Y B N ~ Z ~ S yn f f gm several controversialquestions find their answers: those relating t o th e source of t he

obligation, to various aspects of i ts nature, and notably to i tsenforceability. How ever, the syn ll gm cannot account forseveral oth er tra its of th e Han afi mainten ance. Th e difficultymost widely dwelt upon by the Hanafi authors is the inabil i tyof the widow to recover arrears of maintenance which hadaccumulated in her favour before the death of the husband. 1)

SH YB N~ offers no explanation of this apparent anomaly.Yet an insight into his view on this point can be gained by

considering the stand he takes on an ancil lary question: musta widow who had received from her husband maintenancein advance for a certain period, return the money in respect ofthe period which did n ot elapse before the husb and s dea th?

H Y B N ~ ~ Snswer to this question is: yes, in principle. a )

Being a kind of reparation, maintenance is due only when thehu sb an d inflicts a loss on his wife. Su ch a loss n ot beinginfl icted by him after his death, the widow must return the

maintenance she unjustifiably holds.ABO Y ~ S U F s nswer to these two quest ions is very d i fferen t.He compares the maintenance to a gi f t (HIBA). 3 ) A giftbelongs to the donee only as from the time he takes possession(Q AB D) of it . T hu s a n y mainten ance received by th e wife ishers, even if th e hu sb an d dies before the period for which it waspaid has elapsed. Conversely, the wife loses an y ma inten anc eaccu mu lated in her fa vo ur , if she does n o t tak e possession

(QA BD ) of i t before her h usban d s dea th. This explanat ionhas the merit of being consistent with ABO Y a S U F s ownposition concerning the source of the obligation: in much the

1 ) It is precisely this point which underwent a reform in the 1917 OttomanFamily Law. According to art. 100 and 154 of this law (See D E S T ~ R ,theOttoman omcial publication of Laws, Second Edition, Istanbul 1928, vol. 9,pp. 774, 7811 the widow does not lose the maintenance which was duly accumulatedin her favour b e f o ~ e er husband s death.

2) See M A B S U T , V /195 , w here S A R A E S I s et s f or th no t on ly S H AY BA N l sanswer, but also the contradictory opinion of ABO YOSUF, and V/206 whereS A R A S S l o pt s clearly for th e form er. K A s A N ~ also upheld E A Y B h v f sanswer. See _ B A D A I t , IV/29 -30, 38.

( 3 ) M A B S U T , V/196.



same manner as the maintenance is paid to the wife by wayof gift, so is th e wife delivered t o th e hu sba nd 's home equallyby way of gift. Maintenance is , then, a gift from the husbandin consideration of a gift which he has received from his wife.Q U D ~ R ~d o p ts A B 0 Y ~ S U F ' s ositio n b y in sistin g o n t h edelive ry of th e wife. I ) The same view is a t t r ibuted to

A B ~Y ~ S U Fb y S A R A K H S f ( = ) SAMARQANDf 3 ) andKAsANI. 4 ) F or all t h e yc l as s ic a l au tho rs A B o Y ~ ~ S U F ' Sposition represents the antithesis of BAY BAN^ ^ synallagma.Indeed some of the early Post Classical authors, B A B A R T ~

and IBN-u ' I -HU M AM , specify th a t according to ZA HIR -u' I -RIWAYA, that is the authorised vers ion of S H AY B A N 1'swritings, th e delivery of th e wife is no t necessary. 6 )

The assimilation of the maintenance to a gift together withth e insistence on th e delivery of th e wom an, am ou nt to anexchan ge of gifts wh ich is nam ed in Han afi law as gift w ithconsiderat ion (H IB A bi-SHAR T-i '1- 'IWAD). 6 ) This isundou bted ly a rea l con t rac tTa l though the te rm rea l con t rac tdoes not exist in Hanafi law. ( ) However th is real contract ,no t less than S H AY B A N I S synallagma, fails to cover all thefeatures of th e m ain ten an ce obligation. A m inor, being legallyincapab le, can no t conclude a real con tract , b u t if he is ma rriedhe is obliged to p ay m ainte nan ce to his wife. Professor

(1) QU DO Rf s words are cited above, § 6, p . 80 n. 3 IBN-u 1-HUMAM quiterightly identifies Q u D o ~ f s osition with that of ABO YCSU F: wa-HIYA

RIWA YA AN ABf YOS UF wa-IKHTARA-ha I-QUDORf ( F A T H , o p . c i t . ,

111422 and also 1111427).(2 ) M A B S O T , V/186-7. While Q U D O R ~ used the verb SALLAMA,

S A R A E S f uses the verb INTAQALA. The idea is, however, identical.( 3 ) T U H F A , 111218. S AM AR QA ND ~uses th e ver b INTAQAL A. See th e

following note.(4 ) B A D A I , IV119-20. Both SAMARQANDf and KA SA Nl present ABC

Yo SU F s position only with regard to th e sick woman s right t o maintenance.Nevertheless, from the formulatio n of ABO Y OSU F S opinion by Q U D ~ R ~ndS A R A E S f we can infer tha t ABO YOSUF expressed his opinion as a generalrule, applying to every wife whether healthy or sick.

( 5 ) I N A Y A , 1111321; F A T H , 1111422.(6 ) About this peculiar contract see QU DO RI , the S A B ~ H dition, p. 75

and mainly B A D A I , VIl13.2.(7 ) Ch. Chehata, Le Concept de Representation en Droit Romain et en Droit

M u s ul m an C o m pa re s, R . H . D . F . E . , 1966, pp . 431-443, p. 442.



DEVELOPMENT O F LEGAL T H O U G H T I N HANAFI TEXTS 1 5

Ch ehata p ut s gre at stress on this difference between a n obligationstemming from a real con tract on the one hand and the m ain-tenance obligation o n th e oth er hand . I ) We beg to differ.To o ur mind this difficulty can be ov ercome. = ) The real diffi-culty for ABU YOSUF lies in the voluntary nature of the gift.No one can be forced to make a gift while payment of main-ten anc e can be enforced upon th e husb and with th e aid ofvarious measures of legal coercion. S)

Faced with these two faulty explanations of the nature ofthe Hanafi maintenance obligation S H Y B N P S syn l l gmon the one hand and BU real contract onOSUF ~ the

(1 ) Professor Chehata's insistence on thi s aspect is understandable becauseoriginally he came to formulate his interpre tatio n of t he Hanafi maintenanceonly throu gh his stu dy of legal capac ity.

2 ) In t he s ame way as th e fathe r acts on behalf of his minor son in concludingthe cont ract of marriage, so he can act on his behalf in concluding the real con tract .As for t he minor who is discerning (MUMAYYIZ) an d who has therefore full legalcapacity-he can conclude the real cont ract by himself. Admittedly, he is subj ect

to legal interdiction ( H AJ R) , bu t this applies only to his acts which are disad-vant ageo us to him. The gift with consideration which the discerning minorconcludes with his wife is adv ant age ous to him; he is therefo re capable of concludingi t. (An ord inary g if t w ith considera tion fa ll s, accord ing to ~ A Y B A N ~ , ntoth e intermediate category of transactions which are neither advant ageo us nordisadvantageous to the minor, e. g. sale. However, after authorization (IDHN)is given to th e minor he is fully capable of concluding thi s transac tion, as if i twere wholly advantageous to him).

An expression deno ting th e exchange of th e gift an d th e consideration isindispensable ( L A BUDD A MIN LAFZ YADULLU 'ALA '1-MUQABALA.BADA I , VI/ 30 ) an d the minor is capable of making this declaration. In fact

the declaration is necessary only where otherwise the gift might be equivocal.The declaration is needed to clarify the intention {NIYY A) of the donor a s towhether he intends to transfer full ownership, or only the use (I NT IF A' ) of theobject. In the latt er case the transaction would not be a gift (HI BA ) bu t merelya loan ('ARIYA). (BADA I , VI /I1 6) . The declaration is equally neededto mark th e transfer of a deb t from the creditor to the donee, who is not t he debtor.(wa-LA YAKTAFI Ff-hi bi l-QABD bi-HAPRAT-i '1-WhHIB, b i - G I L X FHIBAT-i '1-'AYN. BADA I , VI/119). As K A S B N i intimates in the lastthree words, where th e de b t consists of a specific object ( AYN) th e decl arationis superfluous. Indeed, th e Ott oma n Civil Code, the Mejelle 839, explicitlysta te s tha t th e declarations described irl 3 836 ar e not essential.

(3 ) KAShNI saw the dimculty (BADA I , I\'/26) but, to our mind, failed toovercome it . However this difficulty carries less weight th at one might supposebecause in Ha nafi law a gift implies in principle a consideration. See: Ch. Che ha ta,Le Contrat en Droit Musulman in: Archiues de Philosophie du Droit X I I I , 1968,pp. 129-141, pp. 138-9.



other, a mod ern lawyer mig ht very well reject them both . This isindeed the at t i tude adopted by Professor Chehata, who prefersa third explanation which is not explicitly considered in theHanafi tex ts. Cit ing IH E R IN G , who declared with regardto Rom an law th at we have the r ight and the du ty to explainand correct the form ulations of th e Ro m an jurists by th e factsof Ro m an law , Professor Ch ehata considers th a t we areequally a t liberty to act likewise with regard to Moslem law. I )

Only the Hanafi legal rulings matter; the explanations accom-panying them can be, indeed should be, ignored. =) Takingadvantage of this liberty Professor Chehata expresses theopinion that the Hanafi maintenance obligation does not arisefrom con tract ( legal ac t) , nor from to rt ( legal fact) , bu t is deriveddirectly from the Law itself. jS In other words, in his viewthe Hanafi maintenance is a legal obligation.

Though we agree, as would any lawyer, with ProfessorChehata's claim for liberty to reject untenable Hanafi explana-tions, we would not go so far as to ignore all the Hanafiexplan ations. The y m ay indeed frequen tly be associatedwith scholastic casuistry, b u t this does no t absolve us from th edu ty to examine every a rgument on i ts mer i t . I t may happen ,as it does in the case of the maintenance obligation, that aHanafi explanation is superior to what is offered by modernlaw. In fact , the crit icisms levelled again st W A Y B A N I'Ssynallagma are equally valid with regard t o the legal obliga-tion suggested by Professor Che hata. Moreover, th e assertionof several modern systems of law 4 ) tha t main tenance is a

(1 ) Chehata , the article cited above n. 99, p. 441. On p. 437 the aut ho r applieshis teaching by rejecting an explanation offered by KAsANI .

(2) Chehata, Thtor ie , pp. 44-45 a Si done une fld6lite scrupuleuse doit dtreobservee dans 1'8tude mdme des cas, une certaine liberte sera neanmoins accordeedans le domaine de la thkorie u.

:3) Chehata, C o n f r a t , p. 16 ; Chehata, Introduction, pp. 56/60.(4 ) For French law see: Mazeau, L e ~ o n sde Droit Ciuil, Par is 1962, t. 2, p p. 42, 44

J Carbonnier, Theoriedes Obl iga tions , Themis , Paris, 1963, pp. 61 ,6 3 ; P. Kayser,L obliga tion alim entaire et ses sanction s ciuiles en droit frangais, in: Journees Ju r i -diques de la Societ6 de Ldgislation Comparde.Par is 1965, pp. 283-292. Th e positionof Italian law on this point is similar to the French law. See: A . Torrenti, L obli-gation alimentaire et ses sanctions en droit ilalien, in: Journees Jur id iques , etc.,



DEVELOPMENT OF LEGAL THOUGHT I N HANAFI TEXTS 107

legal obligation proves to be far less juridical than eitherH AY B h N ' t l s synallagma or ABO YO SU F1 s real contract .

The legal source of the obligation does not suffice to explainall its ramifications. Mod ern sys tem s of law ha ve thereforerecourse to such vagu e notion as public interest I ) andL L p ~ b l i ~oncern e ) .

15. A mo dern law yer, faced with th e dilemma of choosingbetween two competing theories, each of which has its short-comings, must opt for the theory which leaves the smallestnumber of exceptions 3 ) and which covers therefore most ofth e propositions bearing upon the obligation. This me thodleads to the conclusion that the real contract , proposed byABO YOSUF in t he Ancient period and uphe ld by Q U D O R ~in the Classical period, best reflects the characteristics of theHanafi maintenance 4 ) .

This is not, however, the way all the Classical authors regardthis dilemma. To their mind i t is possible to draw uponS H AY B h N f l s synallagma to the ex ten t tha t i t se rvesas an exp lanation for th e maintenance obligation. W hereveri t fails to do so, th ey allow themselves t o resort to ABO YffS UF 'scontrad ictory thesis. This so rt of norm ative pluralism hasrecently been justified by t he claim th a t i t is inhere nt, and evennecessary, t o e v e r y system of law 6). However the moreconserv ative outloo k on th e problem of contrad ictionsin Moslem Law admits their exis tence, but c la ims that they

pp. 296-281, 2. Even English law which has never absorbed the same influencefrom the Napoleonic Code as Italian law did, maintains that the maintenanceobligation is a legal one. See E. L. Johnson, Fa m i l y L a w, London 1958, pp. 62-63.

( 1 ) Jean PBlissier, Les Obligations Alirnen taires, U ni te ou Dirlersite, Paris 1961,p. 329.

2 ) Johnson, o p . c i t . , p. 63 per Lord Atkin, in: I-iyman v . Hyman [I9291 A. C

601 H . L.).3) See, infra, p. 110 n. 1.

( 4 ) Y. Meron, L Obligation Alirnentaire Entre C po u x en Droit Mu sul manHanefite, Thbse, FacultB de Droit de Paris, 1968, p. 550, 230. Later referred toas L Obligation Alirnentaire.

5) J . P. Charnay, Plu ralis me normatif et ambigu ite duns le Fiq h, Siud ia Islarnica,S I X , 1963, pp. 65-82.



DEVELOPMENT O F LEGAL T H O U G H T IN HANAFI TEXTS 1 9

is th e disapp earan ce of t h e obligation of m u tu al aid imposedby the marriage. Since th e h ar m consists of a loss of the rig htto maintenance, the reparat ion, in order to be a deq uate , m usttake the a l imentary form I ) .

Dr. Pklissier criticizes this French theory in the followingterms: By p laying with the two aspects, indem nity and thealimentary, one never knows which one will outweigh the other(in a given case), nor why i t should outweigh i t . Certainauthors have very well percieved this weakness and havedenounced the arbitrariness of the courts which invoke this

or t h a t aspec t according to th e solution desired in each part icularcase. T hu s th e cou rts could easily valid ate renun ciationsof maintenance after divorce, by invoking the source inindemnity, and then declare the null i ty of such renunciationsby calling upon th e alim enta ry cha racte r of th e pension. Atheory which leaves so much place for arbitrariness and whichdoes no t dic tate a firm rule is har dly satisfactory. W hy ,then, is this theory so widely accepted? 2 ) .

The French maintenance obligation is to be found in such astate because French doctrine on this point has not so far hadsufficient tim e to evolve. Divorce itself ha s existed for ha rd lytwo centuries in French law, the maintenance obligationfollowing divorce even less. On th is po int French law isin a stage of de velopm ent similar to th a t of Han afi law in itsAncient Period. A t th a t period efforts were made to at t r ib u teevery proposition of th e Law to a governing idea. The various

manifestations of a single juridical phenomenon could thus beattr ib ute d to several governing ideas a t one and the same time.

I t is only a t a higher stage of development th a t legal doctrineatt ain s the phase of sifting th e various governing ideas, elimina-ting those which cover only a minority of the manifestationsof a single juridical phen om eno n 3 ) , and establishing only one

1 ) J . Pblissier op. cii., p 32.2 J . Pklissier ibid., p. 34.

3 In the French law of maintenance Dr. Pklissier attains this advanced phaseby repudiating ibid., p. 37 ) indemnity as a source and recognizing the a limentarycharacter as the only valid governing idea.



governing idea as the valid norm. The manifestat ions whichdo not come under the single norm are considered as excep-

tions I ) .

In Hanafi law i t is Q U D ~ R ~ ,t th e beginn ing of th e ClassicalPeriod, who reached this advanced stage, a t least as far asthe wife's ma intenance is concerned. Fu rth er historico-juridical studies in fields other than maintenance will showwh ether th is is an isolated case, or an in dication of an au then ticm ethod followed by th e B agdadi a uth or Q U D ~ R ~ .t m a yeven be found t h a t th e oneness of th e legal norm is cha racteris tic

of a whole school which m igh t hav e existed in Ba gd ad , for,as already mentioned, QUDoRf follows the teachings of thefirst Chief Justice in Islam, A B ~ ~ S U F ,who lived in thesame town of Bagdad, two centuries earlier.

I t must , however, be admit ted that the Class ical authorsoutside Bag dad, ish a t S A R A K HS f, S A M A R Q A N D ~ n dK A s A N ~ ,do not at tain the advanced stage which consistsof clinging to one single norm . As sta ted above, th ey present

the maintenance obligation as a synallagma, but deviate fromit whenever i t fails to account for a legal solution. Inste adof considering such a solution as an exception toS H AY B A N I Ssynallagrna, they regard i t as an expression of ~ S U F ' sreal contract . K A s A N ~ , the last great Classical auth or,elevates this normative pluralism to the rank of a principle(A SL ), and calls for the application of th e two governing ideasas far as possible 2 ) .

(1) Si dan s un a utre cas determine l on a besoin de considerer la conceptionrejetee plut6t que l autre, o n ne le fera pas. Le cas en question sera repute 6t re un rexception, puisque line autre conception a pr6valu dans une majorit6 d autrrs cas J

(Chehata, Theorie, p 46, and of 9).2 ) al- ASL Fl 1-AMAL bil- CA BA H- ay n INDA 1- IMKhN ( B A D A I ,

I V / 3 0 . AMAL-an bil-SJABAH-ayn ( o p . c i i . , IV/37). Wi th regard to giftwith consideration: AMAL-an bil-DALTL-ayn bi-QADR-i 1- IMKh N ( o p . c i t . ,1 1 3 2 See also the c rit ic izm of K h S h N t by Professor Cheha ta in :

L I K H T I L A F et la concep tion musu lman du d roi t, in: J Berque et J . P. Charnay,L ambivalence dan s la culture ar abe . Pa ri s 1968, pp. 258-266, 265, as well as in:Le Concept de representation en droit romain et en droit rnusulrnan compares, In:Revue Hisiorique de Droit Frangais et Btranger, 1966, pp 431-433, p . 437. Seealso p. 106 n. 1 sup ra .



DEVELOPMENT O F LEGAL THOUGHT IN HANAFI TEXTS

Indeed, the application of two competing governing ideasto one and the same legal phenomenon, is hardly feasible.

Dr. PBlissier s criticism of Fr en ch dev iation s ap ply perfectlyto our problem in Hanaf i law. By using the two governingideas, the synallagma and the real contract , one never knowswhich one will outweigh the other in a given case, nor whyit should outweigh it . Th e assimilation of th e rqaintenan ceto a gif t was used by Hanafi authors in order to deprivea widow of arrears of maintenance which she did not actuallyreceive from her husb and before his de ath . W hy should

this assimilation be limited o nly to th e case of d ea th ? I t wouldeasily be extended to the case of repudiation, which terminatesth e marriage as much as de ath does. The repudiated wifeshould lose the arrears of maintenance accumulated in herfavour just as the widow loses it .

16. This is precisely th e conclusion arrived a t by Po st Classicalautho rs. How ever, their methodical error is far graver, for

the y h ardly perceived an y legal norms a t all . Here is thebiggest difference between Classical and Post Classical authors.While most Classical authors are enslaved to normative plura-l ism because their legal thought is inchoate, during the PostClassical Period, succumbing under the pressure of u~Qlistteachings, Hanafi authors see no more than cases which theyuse for their analogical constructions. To t h e e x t e n t t h a tnorms are mentioned they have no longer a general application,

b u t dom inate only th e case und er discussion. There is th usno obstacle to introduce normative pluralism even where i tdid not exist earlier in the Classical Period I ) .

(1 ) This can be seen throu gh t he d i fference which exis ts between KA SB N Ia n d I R N N U J AY M in explaining the effects of adultery on the obligation ofmain tenance . KA SA NI admi t s t ac i t ly th a t , by l aw, adu l t e ry has no e ffec t ont h e ma in t en an ce o b li ga ti on . I t is o n l y b y w ay of Eq u i t y ( IST IH SA N ) t h a tadu l t e ry causes the marr i ed woman to fo rfe it her r igh t to main tenance . Th i s

equ i t ab le cons idera t ion does no t app ly to m ain tenance which i s du e dur ing thewai t ing per iod a f t e r repud ia tion . Th us the repud ia ted wom an observ ing thewai t ing period cont inues to be ent it led to maintenan ce even if she com mitsadu l t e ry.

O n t h e o t h e r h a n d , I B N N U J AY M in t roduces normut ive p lural ism in h is



Th e Po st Classical auth ors saw no reason why th e loss of th earrears of maintenance suffered by the widow should not serve

as a premise for an analogy depriving the repudiated womantoo, of h er r ight to the arrears of m aintenanc e a ccum ulatedbefore repudiation I ) . IB N N U JAY M saw the g rea t ha rmensuing from this an alogy, for i t enables unscrupulous hu sban dsagainst whom a claim has been ma de for arre ars of m aintenanc e,to counteract the legal proceedings by repudiating their wives.IBN NUJAYM asp i red , there fore , to demons t ra te tha t thedebt of maintenance s tays in tact even af ter repudiat ion.

However, submerged as he was by Post Classical casuistry,IBN NUJAYM did no t p roduce the lega l norm to subs tan t ia tehis opinion. Th e loss of the arrears of ma intenance b y de athis due to a special ruling relating to gifts, according to whicha gift is n o t exigible after dea th. This special ruling wh ich isjustif ied with regard to a real contract , has no applicationwhatever in case of repudiation, where both the donor ( theformer husb and ) and th e donee ( th e repudiated wife) are a liveand can car ry ou t the de l ivery TA S L P M )and the taking ofpossession (QA BD ) of th e main tenance. IBN NU JAY Mused no such arguments but confined himself , in the main, toproducing citations from other authors who share his opposit ionto the opinion which he rejects 2 ) . IBN B I D ~ N t akes upIBN NU JAY M1 s l i terary proofs an d refutes th em one by o neby showing tha t the au thors c i ted by IB N N U JAY M donot hold the opinion which IBN NUJAYM at t r ibutes tothem. F ina lly IBN A B I D ~ N accep ts to a ce rt ain ex ten tIBN NU JAY M s reservations , by ma king a d is t inct ion whichis , to our mind, untenable on both theoret ical and pract icalgrounds 3).

effort to explain the difierence in the rights to maintenance between an adulterouswife an d an adulterous repudiated woman observing th e waiting period af terrepudiation. See: L Obl iga f ion Al imen ta ire , o p c i t . , pp. 486-6.

1) wa-HA L YUQAS ALA 'I-MAWT? QAL.A 'I-HALAWAN!: Ff -hi KALAM .Another version of HA LA WA NP S words attr ibutes to him opposition to th isanalogy, hut no arguments are given I FAT H , 1111333).

2 ) B A f I R , o p . c i t . , IV 190-91.(31 L Obl iga t ion Al imenfa i re , o p c i t . , p 516.



DEVELOPMENT O F LEGAL T H O U G H T I N HANAFI TEXTS 113

Sifting the Hanafi legal opinions, and particularly belittlingthe au tho ri ty of th e P os t Classical auth ors, as we do, may seemheretical, from a n orth od ox po int of view. I t is thereforesignif icant to point out that such an or thodox author i ty asour contemporary Sheikh ABO ZAHRA, of a l - 'AZHAR,follows the same m etho d. He too tr ies to prove th a t , accordingto Hanafi law, the repudiated woman does not lose the arrearsof maintenance which the former husband owed her beforerepudia tion. She ikh ABU ZAH RA main ta ins th a t the ana logy( QI YAS ) between death and repudiation should not be madebecause th e difference betw een the two is "enormous" ( 'A ZfM ).O nly th e "later" au th ors ( M U T A ' A K H I R ~ N )ndulged inthis erroneous analogy. The c l as s ic al authors , whom theSheikh calls "early" (M U TA Q AD D Ii\InN ), do not men tionit ( I ) . This is a very judicious observation, consistent withthe method advocated by scientif ic research.

17. The Hanafi Post Classical handbooks belong to five"families" each of which has, as its "founder", a comp arativelyshort text , which, in the course of years, was endowed withcom me ntaries. Ea ch of these com me ntaries could hav e servedin its tu rn as a basis for a gloss. Som etimes i t even hap pen edt h a t such a gloss was itself th e objec t of a fu rthe r comp ositionbased on i t . In one w ay or ano ther the whole of this l i teraturedepends on the H I D A Y A of M A R B ~ N A N ~died 59311197).

T he firs t of the se five "families" consists of a uth or s wh ocommented directly upon the text of theH I D A Y A Theseare mainly the I raqi authors B A B A R T ~ ,who emigratedwestw ards an d died in E gy pt in 78611384, and IBN-u' -HUMAM(die d 86111457) who rep rese nts for us th e newr gen era tion s ofEg yp tian -bo rn H an afi lawy ers, heirs of th e patrim on y ofCentral Asian scholarship 2 ) .

Th e founder of th e second family is the Iraq i au th orNASAFI

(1) MUHAMMAD A B U ZAHRA, AQD-11 I - Z AWA J wa- ATHARU-hu.Cairo, 1958, p. 302.

2 Th e commentaries of both , B A B A H l f an d IHN-u I-HUMAM, were publishedtogether with the H I D A Y A itself in the XMIRIYYA, Edition, Cairo 1316.



(died 710/1310) whose opuscule K A N Z -u 1-DAQA IQ I)

i s based indi rect ly on the H I D AYA of MARGHINANi.

NASAFf inaugura ted a m ethod which is s t r ik ing b y i t ss imilar i ty to the same phenomenon in Jewish law of that t ime.A t the o t her end of the Moslem W orld , in Spain , Rabbi SH LOM OB E N AVRAH AM B E N A D E R E T A (1235-1310), briefly calledRASHBA and well known for his nunlerous responsa, for hisgreat erudi t ion in Jewish law as nel l as for his acquaintancewith Spanish and Roman laws, \vl-ote a systematic handbooliof Jewish ritual laws. In i t s method i t resembles the works

of Rabbi HAY Gaon, during the Hanafi Classical period inI raq . However, RAS HBA added to th is handbook, cal ledT O R AT H ha-BAY= ha-AROKH, a sum m ary in the formof a n indep enden t work called T O R A T H

h a - B AY T H

ha-

Q A SA R , con taining only th e conclusions of th e long legaldiscussions of th e ha nd bo ok . T he com position of tw o parallelworks, one-a detailed treatise con taining all the considerationsleading up to the legal conclusions, and the other-stating

briefly the bare legal conclusions, has later become the standardJewish method of codification 2 ) .

Similar ly in Hanaf i law, NAS AFI S opuscule KA NZ -u1-DAQA IQ summar izes a long comm entary wr i t t en by NA SAF ihim self -u po n M A R W I N A N1 s HID A YA. NASAFf s opus-cule gained wide popularity, probably because its concisenessfacili tated th e learnin g of i t by hear t. I t s conciseness was,however, a t the expense of i ts cleari ty, so th a t i t gave r iset o

a very great num ber of comm entar ies upon i t . Noteworthyamong them are : T A B Y ~ N - u 1-HAQA IQ, composed by~ ~ - z A Y L W ~of Abyssinian origin, who immigrated to Cairo,where he died in 74311342 3 ) , and al-B AH R-u 1-RA IQ 4 )

wri t ten by t h e Eg y p t ian au th o r IBN NUJAYM, died 970/1563

The encyclopedic nature of the lat ter compilat ion, resul t ingfrom the fact that i t s au thor drew upon numerous sources ,

1) Published in t h e margin of BAHR, sup., n. 80.2) Elon, op. cot., pp 124, 169, 313.3) Brockelmann, GI1 78, 196 SII 86, 265.4 ) See sup., p 100 n 1.



DEVELOPMENT O F LEGAL T H O U G H T IN H A N A F I TEXTS 5

made la ter generat ions re ly upon i t more than on any otherHa nafi tex t. Once again the parallelism with Jew ish law isstr iking, for IBN N UJA YM is the co ntem pora ry of R abb iJos ep h Caro, born in Spa in in 1488, wherefrom he was exiledand passing through Constantinople sett led in Palest ine, wherehe died in 1575. R ab bi Jos ep h Caro's encyclopedic trea tiseis of overwhelm ing imp orta nc e for late r Jewish law , an d form uch the same reason. Th e difference between these twoencyclopedic works is , however, that Rabbi Joseph Caro addedto his vast treatise also a summary, following the example ofthe RASHBA. The summ ary is called S H U L H A NA R ~ K H

nd is considered as the latest Jewish codification I ) .

The summaries of Hanafi law cannot be compared to RabbiJosep h Caro's s um m ary of Jewish law, because, being inten dedto be learnt by hear t , these Hanaf i texts are so condensed asto become uninte ll ig ible . Th us when N A s A F ~ declares th a tmaintenance is no t due L A TA JIB U ), one never knowswhether this expression means that the obligation exists ornot. Comm enting upon this expression, IBN NU JAYMclaims t h a t wh at is m ea nt by the fact of no t being due ( 'ADAMW U J ~ B )s that the maintenance is not incumbent as anexigible de bt (D A Y N ) upon the husband 2 ) . Indeed thegrea t m ajori ty of Han afi authors recognize th a t mainten anc eis due (T A JIB U ) even before i t becomes an exigible d eb t( D AY N ) 3 ) , but th is only proves that NASAFf used the termWAJ IB inaccurately.

Such inaccuracies did not deter authors in later generationsfrom producing similar summ aries. After theHID AYA hadpenetrated to Anatolia, concurrently with i ts introduction intoMamlQk Eg ypt , i t s teachings were t ransformed into a s um m arynam ed E U R AR-u 'I-'A HK AM accompanied by the commen-t a r y D U R A R - u I-HUKKAM j4 both wri t ten by one and the

1 ) Elon, op . c i t . pp. 189, 303, 332, 341.

2) B A H R IV/187.3) LIObl igat ion Al imen ta i r e op . c i t . p . 2 1 0 .4 ) Published in Istanbul 1329.



same au thor : MENLA I ) K H O S R O 2 ) (died 8 85/1480), a sonof a Greek conver ted to K a m who, himself , a tta ined veryhigh posts in th e O ttom an judiciary. In th e course of timethis work was endowed with other Anatolian commentaries,forming togethe r ou r th ird P ost Classical family .

An other Turkish family was founded ab ou t the t ime of theabove ment ioned IBN NUJAYM, by a Syr ian namedIBRAHIM-u '1-HALABf who l ived in Egypt when i t wasconquered in 1517 by the Ot tomans , and then moved to thecap ital of the new dom inating power: Constantinople. Therehe died in 956/1549, at the advanced age of 90 years, afterhaving tought in his new place and raised a new generationof disciples. His Co nfl ue nc ~ of the Seas MULTAQA'I-'ABH UR ) served for centuries as the t e x t of instructionin the Turkish Medreses j3 and was the f i rs t Hanaf i text tobe translated into a European language j4 . Largely becauseof this reason i t ha d a n ex traordin ary success in the orientalistworld 5 ) . In fact, from the point of view of the development

of legal thought , i t i s nothing but one more decadent textreflecting the shortcomings characteristic of the Post ClassicalPeriod 6 ) .

The same century which witnessed the composit ion of thevast encyclopedic compilat ion by IBN NUJAYM,as well asHALABf's small opuscule, likewise saw T I M I R T S H ~ j 7(died 1004/1595) writing both a long tre atise a nd a s h o r tsum m ary of i t . Once again i t is the sum m ary named

1 ) A Turk i sh co r rup t ion of the Arab ic word M AWLA .2) Pronounced in Turk i sh K HO SR EV . The Turk i sh fo rm of the Pers i an

nam e Cyrus .3 ) P. K. Hi t t i , op . c i t . sup. n . 31 pp. 7131714. Aghnides, w ho lived a t the

t ime of the F i r s t W or ld W ar, s t il l main ta ined th a t a t p resen t i t i s the s t an dar dHanaf l t e t ex t N . P. Aghnides, Mo ham med an Theorie s of F inance , SecondImpression. Lahore 1961,p. 182 Xt) . ) .

(4 ) In 1787, by d 'ohsson , in h i s Tableau Gene ra l de [ Em pi r e Ot toman .(5) Even the recent review of Hanafl law contained in Schacht ' sIn t roduc t ion

to I s l amic Law, Oxford 1964, presen t s I jALABI ' s M U L T A Q A as the fu l ly deve-loped doc trine of H an afi Law in i ts final fully developed form (p .11 2 ) .

6 ) For specific faults in his terminology and legal resoning seeL O bl iga t ionAlimentaire, op. ci t . , 2 2415, 285.

7 ) T1MIRTASI-f in Turkish is a p roper name mean ing I ron-Stone .



DEVELOPMENT OF LEGAL THOU HT IN HANAFI TEXTS 7

TANWfR-u '1- 'ABSAR 1 ) which attracted the attention ofcom men tators. These belong ma inly to th e same geogra-phical area as the founder of this family . While T IM IR -T aS H f l ived in the town of Gaza, h is comm entato r H A S K A F ~(died108811677) was a M U F T -i n in Damascus. However,the style of the seventeenth century favoured variety.HASKAFf did not l imit himself to writ ing onT I M I RTA S H I ST A N W ~ R u t also com m ented u pon a n A natolian t e x t z h a tis HALABPSM U LTA Q A 2 ) . Similarly B U R U N B O L A L ~ ,thou gh living in E gy pt where he was professor a t al- 'AZH AR

(died 1069/1658), comm ents upon an Anatolian tex t: DU RR -u' I -HUKKAM 3 ) . The las t g reat Hanaf i au thor, IBN 'h B ID fN(died 125211836), being of Dam ascus, bui lt his edifice RAD D-u'1-MUHTAR as a commentary on the texts of his fellowcountrymen in Greater Syria: T I M I R T ~ S H ~and HASKAFf .He did, however, write various other commentaries based ontex ts appertain ing to families o ther th an th a t of TIM IR-T A S H ~( 4 ) .

18. This analysis of the development of legal thought in theHanafi handbooks has compelling implications with regard tothe method of research in Hanafi law, and probably in Moslemlaw in general. No one Han afi te x t can be considered asrepre sentin g by itself an y fully developed stage of thi sLaw 6 ) , a11 th e m ore so if th is ha ppe ns to be a P ost Classical

1 ) The newest and best edition, published with IjAS KAF I's a l - D U R R - uI - M U H T A R (see infra) started to appear in Cairo 1966.

(2) A l - D U R R - u I - M U N T A Q Apublished with SHAYKHZBDfi's M A J M AI - A N I I U R , Istanbul 1327.

(3) H U N Y A T DH WT I - A R H A M published with the D U R A R , Istanbul1330.

(4 ) For a chronological outline of some of t he works of IBN 'A BI DI N, seeL Obligation Alimentaire, p. 130.

(5) Finding in QUDORI'S M U K H T A S A R that maintenance is due onlyafte r the wife "delivers" herself into her husban d's home (sup. 6, n. 22), Professor

Y. Lina nt de Bellefonds thinks tha t maintenance is "certainly not" due af ter t heconclusion of th e con tra ct of marria ge before this "delivery" tak es place. (Tra i tede Droit Musulman Compare, I1 Le Mar iaye , Par is 1965, pp. 264, 265). Being sofully convinced t ha t Q UD OR '~ position represents Hanafl Law, Professor Li nan tde Rellefonds claims tha t if the Otto man , Syrian and Iraqi laws grant maintenance



t e x t , be M A R G H ~ N A N ~ , L B^ IB Nt o r N U J AY M .Moreover, later texts lack essential ideas to be found in earlierones l ) . Later texts a lso misrepresent the authent ic opi i l ionof earlier au tho rs. Ideas proceeding from con tradicto rypremises are frequently blurred in a later, Post Classical , s tageof dev elo pm en t, so as to form some kind of a n eclectic concep-t ion 2 ) . These en tag lements can be sor ted ou t , and the exac tmeaning of legal terms can be ascertained, only by tracingtheir use throughout the three ages of Hanafi law; Ancient ,

Classical and Post Classical.Ya ' akov M E R O N

( Je rusa lem)

to t he wi fe a l ready a f te r th e conc lus ion of the m arr iage , befo re she de liversh er se lf i n t o h e r h u s b a n d ' s h o me , t h i s is me re l y a mi s t a k e d u e t o Q A D R I PA S H A 'Sobscure fo rmula t ion of th i s po in t . ( I b i d . , p . 265 , 876) . In fac t , however, th eO t t o ma n , S y r i a n a n d I r a q i l a w s r e f l e c t o n t h i s p o i n t t h e a u t h e n t i c v i e w o fS H AY B A S I . ( S e e M A B S U T , V/186-7 , c i t ing Z A H I R - u I - R I WA YA ) .

1 ) Th e fu n d a m e n t a l an t i t h e si s b et w e en A B G Y O S U F a n d % H AY BA NIconcern ing th e sou rce of th e main ten ance ob l iga t ion i s un du ly reduced b y l a teClass ical au tho rs who conf ine i t on ly t o th e case of t he s ick woman 's main ten ance .See sup . , p . 104 n . 4 . S imi la r ly, TA H A W I (3211933) never says th a t h i s op in ionconcern ing th e sou rce of th e main ten ance ob l iga tion i s connec ted w i th t h a t o fS H AY B A N I (1 8 9 / 8 0 4 ) . S o r d o e s Q U D C 'R I o p e n ly d e c la r e t h a t h e fol lo w sEC YO SU F (1821798) . SeeL Ob l igaf ion Al imen ta i r e , p . 23 . ABC' YO SU F'Sop in ion is to ta l ly mis rep resen ted by Po s t C lassica l au tho rs who a t t r i bu te i t mere lyto several l a te r sages of B A L S - a town in Cen t ra l As ia . SeeD U R A H ,11413 . On the o ther hand , ce r ta in deve lop men ts of the theo r y of abuse of r igh t sa re found in Pos t C lass ica l wr i t ings , bu t no t in ea r l i e r t ex t s . See : Ch . Cheha ta ,L a Theorie de 1 Abus de Droits Chez les Jurisconcrlltes M us nlm an s, in R.I .D.C. ,1952, pp . 217-224.

( 2 ) F o r I B N ' B B I D I N TA S L IM a n d I1 ;IT IB AS a r e s y n o n y m s ( S eeL Obligat ion Alimenta ire , p p . 1 4 0 -1 4 1 ) , a l t h o u g h fo r Q U D O R I , e i gh t c e n t u r i esc a rl ie r, t h e TA S LIM i mp l ie d a r e a l c o n t r a c t , a n d fo r K A S A N I , s ev e n c e n t u r ie se ar li er t h a n I B N ' A B I D I N , I H T I B d S c o nn o te d t h esyna l lagma, t h a t i s t h ean l i thes i s of Q U D U RI 'S TAS LIM . A s imi lar ob l i t e ra t ion of the exa c t mean ingof th e l ega l t e rm W A J I B can be t raced th rou gh ou t the P os t C lassica l per iod(See L Obligation -4limentaire, p . 2 6 9 ) .

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