The construction and function of precedent in Hanafi jurisprudence

By Amir Toft
Submitted to Session P4247 (Reading Islamic Texts: Law, Biography, and Social History, 2015 Annual Meeting
Law
Islamic World;
Islamic Law;
LCD Projector without Audio;
A fair number of leading scholars have identified positive law (furū‘) as the core of Islamic jurisprudence, at least among Sunni schools, and the debate continues unabated over how rightly to conceive of the historical reception and development of this body of knowledge. One influential image, advanced notably by Norman Calder, sees the law as a long-term accumulation and back-projection of material, though this view has recently come under attack. Another image regards jurisprudence as an elite private pursuit, a hidebound tradition mired in conformism (taqlīd) and concerned more with school preservation than addressing real-world contingencies. This latter image is given even for Hanafism, geographically the most widespread and, if all legal writing is considered, the most prolific legal school. Behnam Sadeghi has recently argued that Hanafis over centuries reconfigured the school’s analytical framework to meet the objections of opponents, with the purpose of doggedly safeguarding, above all else, the primitive legal positions of the school founders. While well researched and heavy in data, Sadeghi’s claims rest on a preliminary historical question that remains largely unaddressed by scholars. This question, which forms the central line of inquiry for this paper, is the function of legal precedent in the formation of law. In conversation with Sadeghi and others, I ask the following: How did Hanafis construct both a theory and substance of legal precedent, and how may theirs have differed from the precedent of other schools? Put another way, how did Hanafis receive and rank the legal opinions of prior authorities, and what status did this body of authority hold vis-à-vis other sources of positive law? My chief source material are selections from Muḥammad b. al-Ḥasan al-Shaybānī’s (d. 189/805) Aṣl, only recently brought out in a complete edition. I seek not only to trace how his influential rulings became embedded in the deliberations of successive future jurists, whose writings in time encompassed a trove of legal opinion; I also seek to understand what ideas about the functions of law, explicit or not, animated this practice among Hanafis. I argue that, far from lifeless ritual, the cultivation of legal precedent provided an intentional check against scriptural literalism and a productive way of debating and addressing emergent legal issues. This contention in turn ties in with what other scholarship has suggested about the classical jurist’s role in the broader legal apparatus of the state.