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3.

0 - The Contribution of Imam Abu Hanifah in Islamic Jurisprudence After Imam Abu Hanifah was versed in Kalam knowledge, he started to explore the knowledge of fiqh, as he learnt from As Syeikh Himaad Bin Abi Sulaiman as well as from Syeikh Ibrahim an Nakhaie. His knowledge in fiqh is said had reached the highest level which cannot be achieved by other scholars at that time as Imam Syafie said, the scholars in fiqh are depending on Imam Abu Hanifah.1 Throughout his involvement in business activities, he also had a wide knowledge in muamalat practically, and he had an ability to make hukum in rayi and manthiq as he also had the ability to practically use Islamic Jurisprudence law in various situations in human life. Therefore, he was regarded as one the jurists that open the door to the wide use of rayi and he also the Imam of Madrasah Ar-Rayi at that time. The largest contribution of Imam Abu Hanifah is the Hanafi school, as he is the founder of this school of law which is the most dominant in Islam world as there are many countries mostly in South East follow this Hanafi school.2 There are seven elements in scholarly making a hukum in Hanafi school. Firstly is the Qur'an, the basis of all the thoughts and religious rules and basic resources in any regulations. Secondly is Sunnah, or Al-Hadith, which serves to explain the Book of Allah and represents the effort of the Prophet (p.u.b.h) in delivering the message of Allah. Thirdly is the word from companion of the Prophet, because they are fully aware of the events that led revelation, witnessed the execution by the Prophet, and impart their knowledge to the next generation. The fourth element or source is qiyas, which means to fit a clear nas to some other related things, because of the similarity of basic reason (illah) from them. The fifth is
1

Mohammad Najeeb Qasmi. Imam Abu Hanifah:His Status in Fiqh and Hadith 11 March 2012. www.deoband.net 19 October 2013 2 en.wikipedia.org. Hanafi 25 September 2013. en.wikipedia.org 19 October 2013.

ihtihsan, which is to leave a clear analogy (qiyas) in an attempt to build different law with it. This is because the analogy is found in contravention of the other half. what the scholars do is to try to determine other illah on the problem questioned have in common with something else. It also cited a hidden analogy. Leaving analogy is also used when the analogy contrary to the clear texts (nas) or ijma' or custom. The sixth is the Ijma, which is the mutual consent of the all scholars regarding one problem. Lastly is Al-urf, referring to the common practice of a community of Muslims which are related to the practices that are not described in the Qur'an, the Hadith or the opinion of the Companions of the Prophet. However, al-urf must not be contrary to the clear texts (nas), if not it cannot be used.

3.1 Qiyas Abu Hanifah was refered as the primary figure in the School of Reasoning as he made the greatest contributions to this Islamic legal approach. The method in responding is used to the peoples needs in his locality where there were numerous new developments and a scarcity of reliable hadith knowledge, which demanded an increased emphasis on original thinking and juristic analogy (qiyas).3 Literally, qiyas or analogical reasoning means measuring or comparing and is the method whereby the rule contained in a clear text (nas) of the Quran or sunnah or even a rule has benn sanctioned by ijma (Quran and sunnah), is extended to cases not explicitly covered by the Quran and sunnah on the grounds of a material similarity in the nature of two cases or by

Salman al-Oadah. School of Hadith vs. School of Reasoning 26 September 2013. www.onislam.net. 19 October 2013.

investigating the illa of the privision in the Quran and sunnah and identifying the existence of the same illa in the new case and, thereafter, deciding it similarly 4
"All jurists concluded that qiyas is a form of probabilistic (al-zann al-rajih) evidence. Other than the form of qiyas in which the illah is clearly identified in the texts, qiyas is never deemed to be as high an authority as text or ijma which are deemed as definitive or decisive evidences (qati). Rather, qiyas is recognized as a probability the degree of which is measured by the 'proximity and harmony' with the textual authorities."5

The hanafi jurists were famed for their wide use of qiyas, often citing it in favour of a singly transmitted hadith, as legal historians have mentioned that the greater use of secondary sources by hanafi and maliki jurists is at least partly attributed to their residency in societies outside of the Arabia Peninsula.6 3.2 His Books

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Kemal A.Faruki. (1975) Islamic Jurisprudence 2nd Edition. Karachi: National Book Foundation. P.63 Dr. Mohammad Omar Farooq. Qiyas (Analogical Reasoning) and Some Problematic Issues in Islamic law Upper Iowa University. June 2006.
6

Hassan Ahmad. Investigating Secondary Source Usage by Hanafi Jurists to Enhance Contemporary Relations in Muslim Minority Societies Osgoode Hall Law School. 12 April 2010.

4.0 Issues of Marriage and Divorce among Muslims 4.1 His Opinion in Marriage, the Similarities and Contradiction between Sunni Scholars As Imam Abu Hanifah is famous in emphasizing the freedom and equality of right of human, he had different opinion than other sunni jurists in several aspects regarding to marriage and divorce in Islam. The concept of marriage in Islam is it is an institution for the protection of society in order that human beings remain chaste and unpolluted.7 Two people of different sexes unite in a perfectly lawful way would become the primary base of any society. Muslim marriage is considered as an ibadah (devotion to God) and muamalat (dealings among men) which the consent of both parties is essential to conclude the marriage contract. 4.1.1 Minimum Age of Marriage From the view of Hanifah school, the minimum age of marriage is being set at 18 years for male and 16 years for the female is in fact in conformity with Imam Abu Hanifah that a boy will be considered major at 18 years and girl will be considered major at 16 years, with the absence of other evidence of puberty. However, Imam Shafii agrees instead with view of Imam Abu Yusuf and Imam al-Shaybani that if a boy gets night-pollution and a girl begin to menstruate or both complete 15 years of age, they shall be considered major. 8

7 8

Ali, Z. S. (1987). Marriage and Divorce in Islam: An Appraisal. Bombay: Jaico Publishing House P.63 Nik Noraini, N.B.S. (1998) Marriage and Divorce under Islamic Law. Selangor:International Law Book Services. P.9

4.1.2 Marriage Guardianship According to Imam Abu Hanifah, a woman has a complete freedom to select her husband and to conclude the marriage contract herself. She also cannot be forced to accept guardians verdict so long as she is an adult and of sound mind. However, if she selects a man who is considered as her inferior, her guardian can intervene and petition for a nullification of the contract. On the other hand, Shafii school allows females continues to be in force until she is duly married and emancipated from paternal authority even if she has attained puberty and discretion. Thus, the marriage guardian of a Shafii girl who is not a minor may contract her first marriage with or without her consent. However, although Malikis and Hanbalis consider consent essential to the validity of a contract of marriage, yet, she cannot contract herself into a marriage without the intervention of Wali (guardian). Therefore, among Shafii, Malikis and Hanbalis, the approval of a guardian is essential to the validity of a marriage contract.9

4.1.3 Marriage Witnesses In this aspect, the Hanafis have the same view with Shafiis and Hanbalis which consider the presence of witnesses as an essential condition of the validity of the marriage contract. Imam Malik, on the other hand, does not consider the presence of witnesses as an essential, provided the marriage is duly publicized. Regarding the competency of the witnesses, there is a generally a consensus of opinion that they must be adult, sane, free and Muslim. In addition, Imam Abu

Ali, Z. S. (1987) PP.72-74

Hanifah makes a fine distinction between a person who is present at the marriage ceremony and witnesses the marriage and the witness who give evidence before a court. According to Hanafis, the qualification that a witness must be just becomes relevant only when he appears before a court.10

4.1.4 Conditions in Marriage Contract Even though Sharia jurists accept that a marriage contract may include conditions for either both spouses which must be observed if they are advantages to either party, there are also some differences opinions between the scholars on the validity of certain conditions. For instance, Hanafis and Shafii would consider it is void in a stipulation where a husband who agreed in his marriage contract not to take another wife during the continuance of the marriage would be bound by stipulation so that the first wife would be entitled to dissolution of the marriage in the event of its breach. Hanbali however agreed to any condition agreed between the parties, but must be honoured and given effect, and any party who made that condition shall retain the right of cancellation if the condition is broken.

10

Nik Noraini, N.B.S. (1998) P.26

4.2 His Opinion in Divorce Issues, the Similarities and Contradiction between Sunni Scholars Based on the concept of divorce in Quran, it is strongly condemn by the religion of Islam. Both Quran and Sunnah show that though the divorce is permitted eventually, but the right still can be exercised only exceptional circumstances.11

4.2.1 Nafkah or Maintainance Under the Hanafi law, a marriage is not to be dissolved on the husbands failure to maintain his wife. A wife only can apply for a divorce when the husband is possessed the means and is able to provide support of both himself and his wife but willfully refuse to do so. In contrast, under Malikis, Shafii and Hanbali laws the dissolution of marriage when the husband is so poor as to be unable to maintain the wife or when he is capable of maintain the wife but fails or refuses to do so.12

11

Ali, Z. S. (1987). P.166

12

Ali, Z. S. (1987). P.227-228

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