people of Madina, used
munqati‘
,
mursal
and
mawquf
hadiths
, and the transmitted practice of the people of
Madina before resorting to analogy.
By the end of Abu Hanifa’s life, the schools began to come closer together again because they influenced
one another in their discussions and debates. Their motive was the same: to elevate the
Shari‘a.
To this end,
the one group had to study the knowledge of the other. Certainly, Abu Yusuf, one of the companions of Abu
Hanifa and the
fuqaha’
of opinion, accepted the study and memorisation of
hadiths
and their use as evidence.
If he found that an opinion he had previously held was contrary to the
Sunna
, he abandoned it for an opinion
which agreed with the
hadith
.
We have briefly explained the difference between the
fuqaha’
of opinion and those of the
Sunna
. But was
the ‘opinion’ in question merely legal analogy – which is to relate a matter on which there is no specific ruling
to another prescribed matter with a ruling since the same legal reasoning applies to both – or was it more
general than that? Anyone who studies the meaning of the word ‘opinion’ (
ra’y
) in the way it was used during
the time of the Companions and the
Tabi‘un
will find that it is general and did not refer to analogy alone. It
included analogy and much more besides. When we deal with the formation of the schools, we also find this
general use of the term. When we focus
on the time of the schools, we find that each school differs in the
explanation of the type of opinion which it is permitted to adopt.
Ibn al-Qayyim explains that the opinion which was transmitted
from the Companions and
Tabi‘un
was
what the heart felt was correct after reflection, consideration, and seeking to identify what was correct when
there were conflicting indications. The
fatwas
of the Companions and
Tabi‘un
and those who followed their
path show that the idea of ‘opinion’ includes everything about which a
faqih
gives a
fatwa
for which there is
no text, relying in his
fatwa
on what he knows of the
deen
in a general way, what agrees with its rulings in
general, or what resembles another matter for which there is a text when he connects like to like. The word
‘opinion’ in that context includes analogy,
istihsan
,
masalih mursala
and custom.
Abu Hanifa and his adherents used analogy,
istihsan
,
and custom, and Malik used
istihsan
,
masalih
mursala
(considerations of welfare) and custom. He was famous for the use of considerations of welfare. That
is why there was flexibility and receptivity for all the affairs of people in different
times although it was a
school in which analogy was not frequent. Malik said that
istihsan
was nine-tenths of knowledge but that was
only when there was no text or
fatwa
from a Companion and no precedent practice of the people of Madina.
Ash-Shafi‘i came and founded a systematic method of legal reasoning which ensured that there could be
reliable judgements in the event that no appropriate text was available and did not accept the previous latitude
in the derivation of judgements. He thought that opinion should only be exercised in the
Shari‘a
on the basis
of strict analogy, only permitting a matter without a text to be connected to the ruling on another matter for
which a suitable text existed. In such cases, opinion had to be traced back to
a text so that there was no
possibility of innovation in the
Shari‘a
. As for general deduction and justification for judgements without a
basis in a text, he considered that to be innovation in the
Shari‘a
.
That is why ash-Shafi‘i said, “Anyone who uses
istihsan
has legislated for himself.” He set out rules and
criteria for analogy and defended and supported it so precisely that he, in fact, went further than the Hanafis in
its formulation and affirmation. Ar-Razi commented, “The extraordinary thing is that Abu Hanifa is accused
of relying on analogy, and his opponents used to criticise
him for over-reliance on it, when it is not
transmitted from him or any of his companions that he wrote at all affirming the principle of analogy or that
he responded to the proofs of his opponents in denying analogy. The first to speak on this question and report
proofs in it was Imam ash-Shafi‘i.”
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