Distinguishing features:Hanafi school.

Shafi’i does not consider delivery
of possession necessary for a
gift, does not recognise a
neighbour’s right of preemption,
regards the testimony of
unknown persons as
inadmissible in transactions,
requires witnesses to marriage
to be reliable and just and rules
out as invalid the testimony of
dhimmis in their transactions
inter se. These things may be
practicable in countries still in a
primitive state, where
transactions are simple and of an
elementary nature, but not in
civilised countries, where
transactions are variegated and
complex and cannot be
conducted without a proper
determination of the rights of
the parties and the nature of the
subject matter. Abu Hanifah,
realising this, holds views
different from those of Shafi’i,
and it was Malik’s failure to
realise it that evoked from Ibn
Khaldun the well-founded remark
about his madhhab, namely, that
it gained currency only in
countries which had not made
much progress in civilisation.
The sagacity and clear
sightedness that Abu Hanifah
brought to bear upon his
formulation of rules relating to
secular transactions can properly
be gauged only by a detailed
examination of some of the
chapters into which these rules
are divided. But there is no room
for that in this short book. I
therefore content myself with
discussing the rules on marriage,
which pertain to both the
religious sphere and the secular.
The jurists have included
marriage among religious duties,
but this is only a technical
convention. Because of its
intimate connection with the life
of the community, marriage is
largely a social transaction. One
reason why I have selected the
rules about marriage, by way of
illustration, is that some
European writers have described
the Hanafi law of marriage as
barbarious and inhuman. But I
hope to prove that not even the
most civilised countries of the
world today have fairer and
more humane marriage laws
than those laid down in Hanafi
Fiqh. Bentham characterises the
Roman law of marriage as a
collection of unjust rules,
whereas the Hanafi law of
marriage, as I hope to show, is
the very antithesis of an unjust
dispensation. This may also,
incidentally, correct the
misconception that Hanafi Fiqh is
derived from Roman law.
Marriage forms a large part of
social life. According to a
philosopher, it is the binding
force of communities, the root of
civilisation and the foundation of
culture. It can, therefore, well be
said that a lawmaker who makes
a good exposition of marriage
laws has a good insight into the
laws that govern civilisation.
Although Abu Hanifah was not
the author of the marriage laws
he expounded, these having
been laid down in principle by
the Lawgiver Himself, yet the
perspicacity with which he
expounded them and deduced
detailed rules from them is the
hallmark of a great lawmaker.
The Lawgiver’s pronouncements
were at times mere aphorisms, at
times ambiguous statements, at
times broad hints, spelling out no
details. As a consequence, wide
differences arose among the
mujtahids about their
interpretation and application.
The way in which Abu Hanifah
worked out the details of general
statements, removed the
ambiguities, clarified the hints,
and framed specific rules was a
performance which only his
unique gift of ijtihad was equal
to. No other mujtahid is his rival
in this field.
The following are the broad
headings under which he deals
with marriage laws:
1) The persons between whom
marriage is permissible.
2) Guardianship for purposes of
marriage.
3) Stability of the marriage
contract.
4) The rights of the parties to a
marriage contract.
5) The ritual of marriage.
Restrictions on marriage exist in
all religions with slight
differences. All religions
prescribe certain prohibited
degrees, which are more or less
the same in all of them and all of
which are based on rational
considerations. Shah Wali-Allah in
the Hujjat-Allah al-Balighah and
Bentham in Utility, advance the
same arguments to justify the
prohibited degrees. As these are
in accord with nature and reason
and are clearly stated in the
Qur’an, all the mujtahids are
agreed on the principle
underlying them, but they
disagree on the details not
mentioned in the Qur’anic text.
One of the latter is the question
whether the prohibition is
created by illicit sexual
intercourse, which is the subject
matter of much controversy
between Abu Hanifah and Shafi’i.
Shafi’i holds that it is not. For
example, a man is not prohibited
from marrying a woman with
whom his father has had sexual
intercourse. In fact, Shafi’i
stretches this to the point of
saying that a man may even
marry his illegitimate daughter.
The argument he advances is
that, since illicit intercourse is an
illegal act, it cannot turn what is
lawful into what is unlawful. Abu
Hanifah holds the opposite view.
According to him, the natural
effect of blood-relationship on
the relations between men and
women is not confined to
marriage, and this is the correct
view. The principle underlying
forbidden degrees does not
come into operation specially as
a consequence of marriage. It is
patently contrary to the laws of
Nature to permit marital relations
between a man and his own
daughter, even if born out of
wedlock. This is also true of the
concubine of one’s father. There
are hints about this in the
Qur’an, but as I am not
concerned with a textual debate,
I refrain from citing them.
The second broad question
concerns the competence to
enter into a marriage contract.
This is a very important question,
on the decision of which
depends the goodness or
badness of the institution of
marriage to a large extent.
According to Shafi’i and Ahmad
b. Hanbal, a woman even if she
has attained to puberty and
maturity is not competent to
contract marriage independently
and needs a guardian to consent
to her doing so. On the one
hand, they thus restrict a
woman’s legal powers to the
guardian that he can give her in
marriage even against her will.
According to Abu Hanifah, a
woman who is a major is
competent to contract marriage
of her own will and can, in fact,
on attaining puberty, refuse to
be bound by a marriage
contracted for her by her
guardian during her minority.
(Unless the marriage was
contracted by her father or
grandfather. She cannot annul a
marriage contracted by them –
Suzy)
This divergence of views stems
from a difference of outlook on
women’s rights. In all religions
other than Islam, women have
been assigned a low social status
and granted rights in a niggardly
manner. Among the Hindus and
Christians, they have no right of
inheritance, which was the case
in Arabia itself before Islam. In
many other matters they are
treated as men’s inferiors, but
Islam gave men and women
equal rights, declaring: “Men are
entitled to what they earn by
their deeds, and women to what
they earn by theirs.” Abu Hanifah
kept this equality in view in all
matters, which is a distinctive
feature of his Fiqh. For example,
according to him, in matters like
marriage, divorce and release
from the marital bond, women’s
testimony is of equal value to
men’s, whereas the other imams
regard it as unreliable. Even
where the latter consider
women’s testimony as
admissible, they impose the
condition that two women
should corroborate each other,
Shafi’i raising the number to
four. With Abu Hanifah, a
woman’s evidence is as reliable
as a man’s. Abu Hanifah
considers women as fit to be
appointed qadis, whereas the
other imams do not. As in these
matters, so in marriage, Abu
Hanifah concedes to women an
independent legal status equal to
men’s.
Apart from the principle of the
equality of the sexes, marriage is
a transaction which cannot be
dealt with on the analogy of
other secular transactions, since
it is a relationship which is many-
faceted and intended to be
lifelong. It is extremely unfair to
grant one of the parties to such a
relationship no rights at all.
Shafi’i relies on literalist
arguments to justify his stand,
but Abu Hanifah counters them
with stronger arguments of the
same kind. If Shafi’i quotes:
“There is no marriage without a
guardian,” Abu Hanifah rejoins
with: “A woman is entitled to
contract marriage herself rather
than through her guardian; the
consent of a woman who has
come of age is to be obtained.”
However, this is not the place to
go further into the debate.
The third broad question is
about the extent to which it is
necessary to make the marriage
contract stable and enduring.
Marriage can be the foundation
of civilised life and the binding
force of communities only if it is
a firm and lasting relationship;
otherwise it is only a means of
gratifying an animal appetite.
Abu Hanifah has kept this clearly
in view in laying down rules
about the method of performing
marriage, fixing the dower,
enforcing divorce and giving
effect to khal’ (divorce by the
wife). (But unlike other jurists,
Abu Hanifa does not permit a
woman to seek judicial divorce
on any grounds except ONE: if
her husband is missing and 99
(!) years have passed since his
birth. – Suzy)
Abu Hanifah’s most important
pronouncement in this
connection is that so long as the
relations between husband and
wife are good, divorce is
prohibited. Even where he
considers it permissible – that is,
when there are compelling
reasons for it – he prescribes a
procedure which leaves room for
rectification and revocation.
According to this procedure,
there must be three divorces at
intervals of one month, so that
the husband gets ample time to
reconsider his decision and, if he
so wishes, rescind it, which
indeed is mustahabb (desirable).
If there is no reconciliation
during this period, and it is
established that none is possible,
then there has of necessity to be
a divorce. After the divorce, the
husband has to pay the wife’s
dower and her maintenance
expenses for three months. The
idea behind this is that the wife
should have means of
subsistence until she can find a
new husband. I give below a
table showing Abu Hanifah’s
rules on this subject and those of
other imams. How important Abu
Hanifah considers the marriage
contract to be and how solicitous
he is to ensure that it remains
inviolate under any
circumstances will be clear from
the table.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s