In praise of Hanafi Maslak

Edited by Syed Mumtaz Ali
Part I:
The Supreme
Way of Life
and the Honourable Hanafi
School of Law
Among the Muslims the framing
of laws has always been the
preserve of the religious leaders,
men distinguished for their
extreme devoutness and piety.
The qualities prized most in
religious people are detachment
from worldly matters, aloofness,
strictness in the performance of
duties, unawareness of public
affairs and dislike of the
followers of other religions. All
these are qualities adverse to
social progress. People
characterized by an excess of
these qualities, especially if they
are inborn in them, are unable to
understand the requirements of
a developing civilization. For all
the veneration such people
rightfully enjoy because of their
holiness and purity, they can
offer little guidance to men and
women in the conduct of their
mundane affairs. Who can deny
the exalted rank of godly men
like Junaid Baghdadi, Ma’ruf
Karkhi, Shibli, and Dawud Ta’i;
but one cannot imagine them in
the role of legislators. Even the
mujtahids who framed personal
and public laws under the title of
Fiqh, although no anchorites like
these holy men, did not know
enough about mundane matters
to legislate about them. That
explains why some of their laws
are so rigid and unimaginative as
to be difficult of enforcement. For
example, Shafi’i and some other
mujtahids maintain that no one
but a reliable man can be a
witness to a marriage, that a
neighbour has no right of
preemption, that it is
impermissible to sell gifts, that
the testimony of dhimmis is not
admissible in any circumstances,
and that if a Muslim kills hundred
of innocent dhimmis, he is not
punishable for this. Laws of this
kind are simply not workable.
Abu Hanifah was alone among
his contemporaries in combining
religious piety with an
understanding of worldly needs,
and especially the needs of a
growing society. Because of the
legal references constantly made
to him, he had become
acquainted with thousands of
complicated questions
concerning human relations. His
consultative council was to all
intents and purposes a supreme
court, which had decided
hundreds of thousands of cases.
It virtually had an official status
and was consulted by State
functionaries. Most of his
disciples and associates, who
numbered hundreds, were
people holding judicial posts. To
crown all, he was a born jurist
with a flair for the finer points of
law and an intuitive appreciation
of its operation in human affairs.
A good illustration of this is
provided by the following
incident narrated by most of the
historians who have written
about him.
One day Abu Hanifah called on
Qadi Abi Laila and found him
engaged in hearing a case. The
plaintiff alleged that the
defendant had defamed him by
calling his mother an adulteress.
The Qadi inquired of the
defendant, who also was present
in court, what he had to say in
his defence. Abu Hanifah,
intervening, said to the Qadi that
the suit was not yet ready for
being heard and advised him to
ask the plaintiff if his mother was
alive, because, if she was, she
should also join the suit and be
either personally present or
authorise the plaintiff in writing
to represent her. On the Qadi
questioning him accordingly, the
plaintiff stated that his mother
was dead. The Qadi thereupon
wished to proceed with the
hearing. Abu Hanifah intervened
again and suggested that the
plaintiff be asked whether he
had any brothers and sisters,
because if he did, they should
also be joined to the suit. There
were a number of further
questions which Abu Hanifah
caused the Qadi to put to the
plaintiff. After these questions
had been answered, Abu Hanifah
declared that the case was ripe
for hearing and advised the Qadi
to proceed with the examination
of the plaintiff. It is clear from
this account that, but for Abu
Hanifah’s intervention, the Qadi
would have proceeded with the
case in a manner no better than
the rough-and-ready manner in
which the common people settle
their disputes. Abu Hanifah
desired the case to be heard in
accordance with the proper
judicial procedure, an essential
requirement which was that all
the persons who could claim to
be aggrieved by the cause of
action should be parties to the
suit so that it should not be
necessary for the court to
adjudicate severally upon a
number of claims arising from
the same facts.


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