17. lucas - legal hadith

© Koninklijke Brill NV, Leiden, 2008 DOI: 10.1163/156851908X299232

Islamic Law and Society 15 (2008) 283-314 www.brill.nl/ils

Islamic Lawand

Society

Where are the Legal Ḥadīth? A Study of the Muṣannaf of Ibn Abī Shayba*

Scott C. Lucas

Abstract

The Muṣannaf of Ibn Abī Shayba provides unparalleled access into the legal thought of the “Companions of ḥadīth” in 2nd/8th and early 3rd/9th century Iraq. This article consists of a quantitative analysis of 3628 narrations found in the Muṣannaf in the books on zakāt, divorce, and ḥadd crimes. It demonstrates that the Prophet Muḥammad was an important authority in the Muṣannaf, but that he appears in only 8.7% of the narrations examined. Furthermore, it shows that the “Companions of ḥadīth” relied upon the legal opinions of many of the same Companions and Successors whom Joseph Schacht identified as the primary authorities for the “Companions of raʾy”. It also identifies a division within the “Companions of ḥadīth” between those who, like Ibn Abī Shayba, categorically reject the opinions of post-Successor jurists, and others who accept them.

Keywords

ḥadīth, Prophet Muḥammad, Companions, Successors, divorce, zakāt, ḥudūd

The early development of Islamic law is frequently cast as a struggle between two rival camps: the “Companions of raʾy” and the “Com-panions of ḥadīth”.1 The former camp is generally depicted as a

Correspondence: Scott C. Lucas, Department of Near Eastern Studies, Religious Studies Program, University of Arizona, 446 Marshall. E-mail: [email protected]

* An earlier version of this article was presented at the 2007 annual meeting of the American Academy of Religion in San Diego. I am most grateful to Atifa Rawan and the University of Arizona Library for acquiring the 2006 Riyadh edition of Ibn Abī Shayba’s Muṣannaf so that I could revise my statistics on the basis of this superior text. I also received valuable assistance from Mourad Mjahed during the initial phase of data entry.1) Ignaz Goldziher, The Ẓāhirīs: Their doctrine and their history, translated and edited by Wolfgang Behn (Leiden: E. J. Brill, 1971 [1884]), 3-19; Christopher Melchert, The For-

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284 S.C. Lucas / Islamic Law and Society 15 (2008) 283-314

small group of rationalists whereas the latter is portrayed as an unruly mass of anti-intellectual transmitters. It is generally assumed but has not been proven in the secondary literature that individual “Companions of ḥadīth” endeavored to ground their jurisprudence primarily upon prophetic ḥadīths.2 On the basis of my analysis of three books (kutub) of the massive Muṣannaf of Abū Bakr ʿAbd Allāh b. Muḥammad b. Abī Shayba (d. 235/849), I demonstrate that the “Companions of ḥadīth” of the late 2nd/8th and early 3rd/9th centuries had at their disposal relatively few prophetic ḥadīths on most legal topics and were united in their overwhelming reliance upon the legal

mation of the Sunni Schools of Law (Leiden: Brill, 1997), 1-31; and Wael Hallaq, The Origins and Evolution of Islamic Law (New York: Cambridge University Press, 2005), 74-6, 102-9, 113-28. An excellent overview of Western approaches to Islamic law can be found in Harald Motzki, The Origins of Islamic Jurisprudence, tr. Marion Holmes Katz (Leiden: Brill, 2002), 1-49. Although Joseph Schacht focuses more on the impact of ḥadīths on Islamic law than on the roles of individual “Companions of ḥadīth” in this process, he does state that “[the traditionists’] activity is an integral part of the development of legal theory and positive legal doctrine during the first half of the second century A.H.;” Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon, 1950), 253.2) The classic statement of this position is by Joseph Schacht, who claimed that, “the main thesis of the traditionists... is that formal traditions from the Prophet supersede the ‘living tradition’” and that their “most important activity” was the “creation and putting into circulation of traditions from the Prophet;” Origins, 253. Wael Hallaq asserts that the ahl al-ḥadīth, whom he calls “traditionalists,” “held that law must rest squarely on Prophetic ḥadīth,” although he observes that the “proto-traditionalists had not yet come to the point at which they would insist upon exclusive reliance on Prophetic ḥadīth;” Origins and Evolution, 74. Christopher Melchert’s depiction of the ḥadīth scholars’ methodology re presents a significant improvement over Schacht’s analysis, yet requires additional refinement. While he recognizes that the “Companions of ḥadīth” rely upon Companion and Successor reports, he also identifies them as “proponents of entirely Scriptural authority in theology and law;” see Melchert, Formation, 1-15, at 1. In his seminal article, “Tra-ditionist-jurisprudents and the Framing of Islamic Law,” Melchert correctly observes that, “the use of hadith reports from Companions and later authorities was not an issue dividing traditionist-jurisprudents from rationalistic [jurisprudents],” but is less accurate when he asserts that ḥadīth scholars would rely upon “Companion or later hadith if prophetic was unavailable;” see Melchert, “Traditionist-jurisprudents and the Framing of Islamic Law,” Islamic Law and Society, 8, no. 3 (2001): 383-406, at 405. I argue in this article that ḥadīth scholars did not distinguish between Companion and Successor reports and prophetic ḥadīths, and that they almost always cited post-prophetic reports even when prophetic ḥadīths were available.

S.C. Lucas / Islamic Law and Society 15 (2008) 283-314 285

precedents of Companions and Successors, but split over the authority of post-Successor jurists.

Abū Bakr Ibn Abī Shayba was an exemplary member of the “Companions of ḥadīth”.3 His primary scholarly activity consisted of collecting tens of thousands of Companion and Successor opinions, complete with isnāds, along with a substantial corpus of prophetic ḥadīth. Most of his major teachers were prominent Iraqi ḥadīth scholars whom Ibn Qutayba (d. 276/889) classified as “Companions of ḥadīth” in his Kitāb al-maʿārif.4 Ibn Abī Shayba wrote a brief refutation of approximately 120 opinions attributed to the central “Companion of raʾy”, Abū Ḥanīfa (d. 150/767) that is included in his Muṣannaf.5 In 234/848-9, after the infamous ʿAbbāsid inquisi -tion (miḥna) over the nature of the Qurʾān, Ibn Abī Shayba heeded the invitation of the Caliph al-Mutawakkil (r. 232-47/847-61) to promote anti-Muʿtazili ḥadīths in the Mosque of Ruṣāfa, a quarter of Baghdad on the eastern bank of the Tigris.6 Ibn Abī Shayba’s Muṣannaf was compiled and preserved by the Cordovan ḥadīth-champion Baqī b. Makhlad (d. 276/889), an iconoclastic scholar who refused to conform to the teachings of any single jurist and exercised ijtihād on the basis of his trove of transmitted ma terials.7 In short, the Muṣannaf of Ibn Abī Shayba was assembled by two

3) For biographies of him, see al-Khaṭīb al-Baghdādī, Tārīkh madīnat al-salām, ed. Bashshār ʿAwwād Maʿrūf, 17 vols. (Beirut: Dār al-Gharb al-Islāmī, 2001), 11:259-67; Shams al-Dīn al-Dhahabī, Siyar aʿlām al-nubalāʾ, ed. Shuʿayb al-Arnaʾūṭ, et. al., 11th printing, 28 vols. (Beirut: Muʾassasat al-Risāla, 2001), 11:122-7; “Ibn Abī Shayba,” The Encyclopaedia of Islam, CD-ROM Edition (Leiden: Brill, 2004). See also the extensive editors’ introduction to Ibn Abī Shayba, al-Muṣannaf, ed. Ḥamad al-Jumʿa and Muḥammad al-Laḥīdān, 2nd printing, 16 vols. (Riyadh: Maktabat al-Rushd, 2006), 1:13-127.4) Ibn Qutayba, al-Maʿārif, ed. Tharwat ʿUkāsha (Cairo: Wizārat al-Thaqāfa, 1960), 501-28.5) Ibn Abī Shayba, al-Muṣannaf, 13:80-195. For a modern refutation of Ibn Abī Shayba’s critique, see Muḥammad Zāhid al-Kawtharī, al-Nukat al-ṭarīfa fī ’l-taḥadduth ʿan rudūd Ibn Abī Shayba ʿ alā Abī Ḥanīfa, new edition (Cairo: al-Maktabat al-Azhariyya li-’l-Turāth, 1999).6) Al-Khaṭīb, Tārīkh, 11:261; al-Dhahabī, Siyar, 11:125; Christopher Melchert, “How Ḥanafism came to Originate in Kufa and Traditionalism in Medina,” Islamic Law and Society, 6, no. 3 (1999): 318-47, at 339.7) For biographies of him, see al-Dhahabī, Siyar, 13:285-96; Manuella Marín, “Baqi b. Majlad y la introducción del studio del ḥadīt en al-Andalus,” al-Qantara, 1, no. 1/2 (1980):


distinguished members of the “Companions of ḥadīth” and thus affords valuable insight into their jurisprudence.

My empirical analysis of the legal chapters of Ibn Abī Shayba’s Muṣannaf reveals that only one in eleven reports is a prophetic ḥadīth. This finding is not entirely surprising in light of Harald Motzki’s pioneering study of the Muṣannaf of ʿAbd al-Razzāq al-Ṣanʿānī (d. 211/827), in which he, too, found relatively few prophetic ḥadīths.8 However, with nearly 39,000 reports, the Muṣannaf of Ibn Abī Shayba is significantly larger than ʿAbd al-Razzāq’s book and draws liberally from the scholarship of Kufa and Basra, the two most significant cities of ḥadīth scholarship in the 2nd/8th century.9 Furthermore, my findings indicate a substantially lower percentage of prophetic ḥadīths in the legal books of Ibn Abī Shayba’s Muṣannaf than Christopher Melchert’s estimate of “about one in four” for the entire Muṣannaf, as well as Ḥamad al-Jumʿa’s and Muḥammad al-Laḥīdān’s estimate of one in six, and ʿAysha al-Mashʿabī’s finding of one in five.10 Although the Prophet Muḥammad is a major authority in the Muṣannaf of Ibn Abī Shayba, I will show that the Iraqi “Companions of ḥadīth” primarily cited the legal opinions of many, if not most, of the identical early religious authorities as did the Iraqi “Companions of raʾy”, a finding which suggests that the tension between these two parties did not derive from the ḥadīth scholars’ insistence upon prophetic reports in legal matters.

165-208; Isabel Fierro, “The Introduction of ḥadīth in al-Andalus,” Der Islam, 66 (1989): 77-84; “Baḳī b. Makhlad,” The Encyclopaedia of Islam, CD-ROM Edition.8) Motzki, The Origins of Islamic Jurisprudence; for a summary of his findings, see, “The Muṣannaf of ʿ Abd al-Razzāq al-Ṣanʿānī as a Source of Authentic Aḥādīth of the First Century A.H.,” Journal of Near Eastern Studies, 60, no. 1 (1991): 1-21.9) For discussions of the significance of Basra and Kufa in the development of ḥadīth scholarship, see Melchert, “How Ḥanafism Came to Originate in Kufa”; and Scott C. Lucas, Constructive Critics, Ḥadīth Literature, and the Articulation of Sunnī Islam (Leiden: Brill, 2004), 67-73 and 355-62.10) Melchert, “Traditionist-jurisprudents,” 401; Ibn Abī Shayba, al-Muṣannaf, 1:279. Several of the major findings of ʿ Aysha al-Mashʿabī’s M.A. thesis, “Abū Bakr Ibn Abī Shayba wa manhajuhu fī muṣannafih” (Mecca: Jāmiʿ Umm al-Qurā, 1408 AH) are reprinted in the editors’ introduction of al-Muṣannaf, 1:270-9.


I. Methodology

This article provides quantitative and qualitative analyses of the books on the alms tax (zakāt), divorce (ṭalāq), and ḥadd crimes (ḥudūd) in the Muṣannaf of Ibn Abī Shayba. These three books address topics that fall into the broad Islamic legal categories of acts of worship (ʿibādāt), transactions (muʿāmalāt), and penalties (ʿuqūbāt). In the recently published Maktabat al-Rushd critical edition of Ibn Abī Shayba’s Muṣannaf, the book on alms tax contains 1006 reports in 155 chapters, the book on divorce has 1627 reports in 283 chapters, and the book on ḥadd crimes consists of 995 reports in 183 chapters. This sample covers, in total, 3628 reports in 621 chapters. The quantitative analysis derives from a database into which, at a mini-mum, the first and final names of the isnāds for all 3628 reports were entered. This database makes transparent the identities of Ibn Abī Shayba’s most-frequently cited authorities and the immediate sources for his narrations. The purpose of this article is not to verify the authenticity of the isnāds within the Muṣannaf, but merely to determine the identity of the persons Ibn Abī Shayba and Baqī b. Makhlad thought they were citing in order to establish or justify specific legal positions. The qualitative portion of this study, which focuses on Ibn Abī Shayba’s adumbration of rulings concerning the ʿĪd al-Fiṭr alms tax and the khul ʿ procedure for terminating a mar-riage, invites us to reevaluate prevailing assumptions about the sig-nificance of prophetic authority in the jurisprudence of the early “Companions of ḥadīth.”

II. The Muṣannaf of Ibn Abī Shayba

The Muṣannaf of Ibn Abī Shayba is an Andalusian book that records a Kufan perspective on a large corpus of transmitted Islamic knowl-edge in circulation around the year 200/815. Its 39 books run the gamut from adab to zuhd, from law to history, and from hagiography to the apocalypse. Abū Bakr b. Abī Shayba, whose birth al-Khaṭīb al-Baghdādī dates to 156/773, was the son of a qāḍī of Fārs province and the grandson of a qāḍī of Wāsiṭ.11 Two of his brothers, ʿUthmān

11) For Ibn Abī Shayba’s father, Muḥammad b. Ibrāhīm (d. 182/798), see al-Khaṭīb, Tārīkh,


(d. 239/853-4) and al-Qāsim (date of death unknown) were also religious scholars, though with diametrically opposed scholarly repu-tations.12 Abū Bakr appears to have been more of a compiler of transmitted materials than a ḥadīth-critic, unlike his contemporaries Ibn Ḥanbal, Yaḥyā b. Maʿīn, and ʿAlī b. al-Madīnī. Despite the fact that Ibn Ḥanbal and Ibn Maʿīn graded him as merely “sincere” (ṣadūq),13 Ibn Abī Shayba’s ḥadīth are found in all of the “six Sunnī books,” with the exception of al-Tirmidhī’s Jāmiʿ. Further testament to the value of his narrations is the fact that both Muslim and Ibn Māja incorporated large numbers of his prophetic reports in their canonical books. In addition to his immense Muṣannaf, Ibn Abī Shayba is credited with compiling a qurʾānic commentary (tafsīr) and several other historical and theological books, portions of which are found in his Muṣannaf.14

Whether Ibn Abī Shayba actually arranged his most famous work in its current order is largely irrelevant because the only surviving recension of the Muṣannaf was transmitted in Cordova by Abū ʿAbd al-Raḥmān Baqī b. Makhlad and his disciple Abū Muḥammad ʿAbd

2:265-6. For his grandfather, Abū Shayba Ibrāhīm b. ʿUthmān (d. 169/785-6 or slightly later), see al-Khaṭīb, Tārīkh, 7:21-26 and Ibn Saʿd, Kitāb al-ṭabaqāt al-kabīr, ed. ʿAlī Muḥammad ʿUmar, 11 vols. (Cairo: Maktabat al-Khānjī, 2001), 8:506. Both al-Khaṭīb and Ibn Saʿd report the widespread consensus that Abū Shayba was a weak transmitter. I have not come across any cases of Ibn Abī Shayba quoting either his father or grandfather in the Muṣannaf.12) For ʿUthmān Ibn Abī Shayba, see al-Khaṭīb, Tārīkh, 13:162-7 and al-Dhahabī, Siyar, 11:151-4. ʿ Uthmān is cited frequently in al-Bukhārī’s Ṣaḥīḥ. Al-Dhahabī describes al-Qāsim Ibn Abī Shayba as “weak” (ḍaʿīf; ibid., 11:122) and neither he nor al-Khaṭīb provides an entry for him in their respective books. Both Abū Ḥātim and Abū Zurʿa al-Rāzī copied al-Qāsim’s narrations but refrained from disseminating them; Ibn Abī Ḥātim, al-Jarḥ wa-’l-taʿdīl, ed. ʿAbd al-Raḥmān al-Yamānī, 9 vols. (Beirut: Dār al-Fikr reprint of the 1952 Hyderabad edition), 7:120.13) Al-Dhahabī, Siyar, 11:123-4. The critic Abū Ḥātim al-Rāzī gives him the higher grade of “trustworthy” (thiqa); Ibn Abī Ḥātim, al-Jarḥ wa-’l-taʿdīl, 5:160.14) Ibn al-Nadīm attributes eight works to Ibn Abī Shayba, including three that appear as chapters in the Muṣannaf; Kitāb al-fihrist li-’l-Nadīm, ed. Reza Tajaddod (Tehran, n.d.), 286. Ibn Ḥajar al-ʿAsqalānī provides isnāds for the Muṣannaf, Tafsīr, Kitāb al-īmān, Tārīkh, Awāʾil, and Musnad in his bibliography, al-Muʿjam al-mufahras (Beirut: Muʾassasat al-Risāla, 1998), 50-1, 110-11, 117, 135, 171. See also Fuat Sezgin, Geschichte des Arabischen Schrifttums (Leiden: Brill, 1967), 1:108-9. The most thorough discussion of his books is in the editors’ introduction of al-Muṣannaf, 1:72-98.


Allāh b. Yūnus al-Qabrī (d. 330/941-2).15 These two scholars, whose names appear at the beginnings of many of the books of the Mu -ṣannaf, are probably responsible for establishing Ibn Abī Shayba’s cornucopia of transmitted materials as a “fixed form” book.16 Ac -cording to al-Dhahabī and Ibn Ḥajar,17 the Muṣannaf of Ibn Abī Shayba passed from ʿAbd Allāh b. Yūnus to Abū Muḥammad ʿAbd Allāh b. ʿAlī, known as Ibn al-Bājī (d. 378/988-9),18 of Seville, who began teaching in Cordova in 370/980-1 and transmitted this book to his son, Abū ʿUmar Aḥmad b. ʿAbd Allāh al-Bājī (d. 396/ 1005-6).19 Abū ʿUmar Ibn al-Bājī, who served briefly as a qāḍī in Seville, returned to Cordova to teach full time, where he earned the reputation of being one of the foremost religious scholars of the Andalusian Umayyad caliphate. He transmitted the Muṣannaf to his most illustrious pupil, Abū ʿUmar Ibn ʿAbd al-Barr (d. 463/1070),20 who cites it frequently in his large commentaries on the Muwaṭṭaʾ. From Ibn ʿAbd al-Barr, the Muṣannaf was preserved by the Cordovan ʿAbd al-Raḥmān Ibn ʿAttāb (d. 520/1126),21 who subsequently passed it on to the famous historian and occasional qāḍī of Seville, Abū al-Qāsim Ibn Bashkuwāl (d. 578/1183).22 Since Ibn Bashkuwāl

15) For more on Baqī, see above. Note that his father, like that of Ibn Abī Shayba, was also a qāḍī; Marín, “Baqi b. Majlad,” 173. ʿAbd Allāh b. Yūnus does not receive entries in al-Dhahabī’s books, but is found in Ibn al-Faraḍī, Tārīkh al-ʿulamāʾ wa-’l-ruwāt li-’l-ʿilm bi-’l-Andalus, ed. ʿIzzat al-Ḥusaynī, 2 vols. (Cairo: Maktabat al-Khānjī, 1954), 1:265-6.16) The “Book of Firsts” (awāʾil) was added later to the Muṣannaf as we have it now, as the isnād does not mention Baqī. For the difference between a “fixed form” book and lecture notes, see Gregor Schoeler, The Oral and the Written in Early Islam, edited by James E. Montgomery and translated by Uwe Vagelpohl (New York: Routledge, 2006), 33-6; originally published as Schoeler, “Die Frage der schriftlichen oder mündlichen überlieferung der Wissenschaften im frühen Islam,” Der Islam, 62 (1985): 210-15. 17) Ibn Ḥajar’s lineage of this book is found in al-Muʿjam al-mufahras, 50-1. Al-Dhahabī mentions the Muṣannaf transmission in each of the following entries, with the exceptions of Ibn Bashkuwāl and ʿAbd al-Raḥmān b. Makkī.18) Al-Dhahabī, Siyar, 16:377; Ibn al-Faraḍī, Tārīkh, 1:281. Ibn al-Faraḍī (d. 403/1013) describes Ibn al-Bājī as one of his favorite teachers.19) Al-Dhahabī, Siyar, 17:74-5.20) For more on him, see al-Dhahabī, Siyar, 18:153-63 and “Ibn ʿAbd al-Barr,” The Encyclopaedia of Islam, CD-ROM Edition. 21) Al-Dhahabī, Siyar 19:514-5.22) Al-Dhahabī, Siyar, 21:139-43 and “Ibn Bashkuwāl,” The Encyclopaedia of Islam, CD-


never left al-Andalus, we can assume that the Alexandrian trader, ʿAbd al-Raḥmān b. Makkī (d. 599/1202-3),23 who appears in Ibn Ḥajār’s isnād of the Muṣannaf, acquired it on one of his trips to al-Andalus and brought it to Egypt, where it must have stimulated a great degree of excitement among ḥadīth scholars familiar with Ibn Abī Shayba’s name but who had never seen his most famous book.24

Even if Ibn Abī Shayba did not arrange the Muṣannaf in its final fixed form, all of the transmitted materials in it claim to pass through him. He collected his narrations from a wide array of 2nd/8th century religious authorities, nearly all of whom lived in Iraq. Unlike ʿAbd al-Razzāq’s Muṣannaf, which draws heavily upon the collections of Maʿmar b. Rāshid (d. 153/770), Sufyān al-Thawrī (d. 161/778), and Ibn Jurayj (150/767),25 Ibn Abī Shayba’s compendium has only one predominant source, followed by materials from about a dozen supporting scholars. This source is the Kufan Wakīʿ b. al-Jarrāḥ (d. 197/812) and it is possible that his lost Muṣannaf is largely extant within Ibn Abī Shayba’s book.26 The next fourteen scholars who appear most frequently as Ibn Abī Shayba’s sources all hail from Kufa, Basra, Wāsiṭ, or Baghdad, with two exceptions: Sufyān b.

ROM Edition. Al-Dhahabī does not explicitly mention the Muṣannaf among the books transmitted by Ibn Bashkuwāl.23) Al-Dhahabī, Siyar, 21:392-3. Al-Dhahabī does not mention the Muṣannaf of Ibn Abī Shayba in this entry.24) Ibn Taymiyya’s transmission of the Muṣannaf passed from Ibn Bashkuwāl to Jaʿfar b. ʿAlī al-Hamadānī to his teacher, al-Fakhr b. al-Bukhārī; see Ibn Abī Shayba, al-Muṣannaf, 1:198 (editors’ introduction).25) Motzki, The Origins of Islamic Jurisprudence, 58-9. Motzki mentions alternative death dates of 152 or 154 for Maʿmar (p. 63).26) In a remarkable parallel, Wakīʿ’s Muṣannaf was probably lost early on in the eastern Islamic lands, but was transmitted in al-Andalus by Baqī’s chief rival, Ibn al-Waḍḍāḥ (d. 289/900), then passed from Ibn ʿAttāb to Ibn Bashkuwāl, and finally landed in the hands of Jaʿfar b. Alī al-Hamdānī (d. 636/1238) in Egypt; Ibn Ḥajar, al-Muʿjam, 50. For more on the peripatetic Alexandrian Jaʿfar b. ʿAlī, who transmitted many books, including Ibn Abī Shayba’s Muṣannaf (see note 24), from al-Andalus by ijāza, see al-Dhahabī, Siyar, 23:36-9. Ibn al-Waḍḍāḥ obtained Wakīʿ’s Muṣannaf from Mūsā b. Muʿāwiya al-Ṣamūdiḥiyya in Qayrawān, a scholar who had traveled to Kufa and Rayy in order to collect ḥadīths and was a friend of the great Mālikī jurist Saḥnūn; Siyar, 12:108-9. For more on Wakīʿ’s Muṣannaf, see Schoeler, The Oral and the Written, 31-2.


ʿUyayna, who was born in Kufa and moved to Mecca; and the Kufan Jarīr b. ʿAbd al-Ḥamīd, who moved to Rayy in his adult years (see Table 1). Even though several of these scholars have books attributed to them in Ibn al-Nadīm’s Fihrist,27 where they are classified as “jurists among the ḥadīth scholars and the companions of ḥadīth,”28 it is quite likely that Ibn Abī Shayba acquired their narrations through listening to their lectures and/or copying their lecture notes rather than from actual books.29 On the basis of the evidence of the isnāds in the Muṣannaf, Ibn Abī Shayba appears to have obtained portions of Ibn Jurayj’s collection from his Basran teacher Muḥammad b. Bakr and selections of Saʿīd b. Abī ʿArūba’s (d. 156/773) book from ʿAbd al-Aʿlā b. ʿAbd al-Aʿlā and ʿAbda b. Sulaymān.30 Muslim scholars have long held that the books of Ibn Jurayj and Saʿīd b. Abī ʿArūba are among the first books “arranged according to topics” (muṣannaf )31 and one can safely assume that Ibn Abī Shayba would have been keen to include their contents in his collection.32 Other prominent mid-2nd/8th century compiler-transmitters whose narrations Ibn Abī Shayba includes in his Muṣannaf are Sufyān al-Thawrī and, to a much lesser degree, Maʿmar b. Rāshid.33

27) The following major teachers of Ibn Abī Shayba have books attributed to them: Wakīʿ, Ibn al-Fuḍayl, Hushaym b. Bashīr, Yazīd b. Hārūn, and Ibn ʿUlayya; Ibn al-Nadīm, al-Fihrist, 282-4.28) Fuqahāʾ al-muḥaddithīn wa-aṣḥāb al-ḥadīth.29) On the important role of lecture notes or private written records (hypomnēma) in early Islamic scholarship, see Schoeler, The Oral and the Written, 28-49.30) Ibn Jurayj is present in 192 narrations in this sample of the Muṣannaf, while Saʿīd b. Abī ʿArūba is found in 179, all but one of which are in the “Book on Divorce” and the “Book on Ḥadd Crimes.” Muḥammad b. Bakr, who is almost entirely absent from the “Book on Divorce,” provides 48% of the narrations that trace through Ibn Jurayj. ʿAbd al-Aʿlā supplies 28% of the narrations from Ibn Abī ʿ Arūba and ʿ Abda provides an additional 26%. 31) Motzki, Origins, 274-5.32) Ibn Abī Shayba occasionally transmits from ʿAbd al-Razzāq, whom he may have met during one of his pilgrimages to Mecca, since his biographers do not report that he traveled to Yemen. He certainly did not rely on ʿAbd al-Razzāq for Ibn Jurayj’s collection in any substantial manner.33) Sufyān al-Thawrī appears in 316 isnāds, while Maʿmar is present in 100.


Table 1: Ibn Abī Shayba’s Most Frequently Cited Sources

Name Death Date City Reports: Zakāt

Reports: Divorce

Reports: Ḥudūd

Total

1 Wakīʿ b. al-Jarrāḥ 197/812 Kufa 225 283 155 663 2 Ḥafṣ b. Ghiyāth 194/809 or

810Kufa 43 83 55 181

3 ʿAbd al-Aʿlā b. ʿAbd al-Aʿlā

189/805 Basra 25 93 56 174

4 Jarīr b. ʿAbd al-Ḥamīd

188/804 Kufa,Rayy

41 73 32 146

5 Ibn ʿUlayya, Ismāʿīl b. Ibrāhīm

193/809 Baghdad 16 103 21 140

6 Hushaym b. Bashīr 183/800 Wāsiṭ 19 78 27 124 7 Abū Usāma

Ḥammād b. Usāma201/816 or 817

Kufa 54 34 14 102

8 Muḥammad b. Bakr 203/818 or 819

Basra 61 1 37 99

9 ʿAbd al-Raḥīm b. Sulaymān

184/800 Kufa 55 6 32 93

10 ʿAbda b. Sulaymān 188/804 Kufa 11 60 22 9311 Abū Muʿāwiya

Muḥammad b. Khāzim

195/810 or 811

Kufa 24 42 25 91

12 Yazīd b. Hārūn 206/821 Wāsiṭ 10 49 28 8713 Sufyān b. ʿUyayna 198/814 Mecca 23 42 21 8614 ʿAbd Allāh b. Idrīs 192/808 Kufa 15 44 26 8515 Muḥammad b.

al-Fuḍayl195/810 or 811

Kufa 9 48 22 79

III. Quantitative Findings

Three-quarters of the narrations in the books on the alms tax, divorce, and ḥadd crimes in the Muṣannaf of Ibn Abī Shayba claim to report the opinions of fourteen early Muslim authorities (see Table 2). Unlike Ibn Abī Shayba’s direct teachers, nearly all of whom are Iraqi, slightly more than half of his legal authorities lived in Mecca and Medina. Seven of these authorities are of the Successor genera-tion, and most of them lived from the mid-1st/7th century into the


early 2nd/8th century. One in three reports in the Muṣannaf is the putative opinion of either al-Ḥasan al-Baṣrī, Ibrāhīm al-Nakhaʿī, ʿĀmir al-Shaʿbī, or ʿAṭāʾ b. Abī Rabāḥ. The Companions ʿUmar and ʿAlī are cited 12% of the time, and each of them appears nearly twice as frequently as ʿAbd Allāh b. ʿUmar, Ibn Masʿūd, and Ibn ʿAbbās. Four additional Successors--al-Zuhrī, Saʿīd b. al-Musayyab, the caliph ʿUmar b. ʿAbd al-ʿAzīz, and al-Ḥakam b. ʿUtayba--round out the list of Ibn Abī Shayba’s top authorities and are cited in an additional 12% of the reports in these books.

Table 2: Ibn Abī Shayba’s Most Frequently Cited Authorities34

34) Al-Dhahabī mentions a range of 89/707-8 to 105/723-4 for Ibn al-Musayyab’s death date, although he prefers 94; Tadhkirat al-ḥuffāẓ, 5 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1998), 1:45.

Name DeathDate

City Number of Reports

Percentage of TotalSample Reports

1 al-Ḥasan al-Baṣrī 110/728 Basra 363 10.0 % 2 Ibrāhīm al-Nakhaʿī 95/714 Kufa 360 9.9 % 3 Prophet Muḥammad 11/632 Mecca,

Medina315 8.7 %

4 ʿĀmir al-Shaʿbī Between 103/721 and 110/728

Kufa 296 8.2 %

5 ʿUmar b. al-Khaṭṭāb 23/644 Medina 227 6.3 % 6 ʿAlī b. Abī Ṭālib 40/661 Medina, Kufa 211 5.8 % 6 ʿAṭāʾ b. Abī Rabāḥ 114/732 or

115/733Mecca 211 5.8 %

8 Ibn Shihāb al-Zuhrī 124/742 Medina 130 3.6 % 9 ʿAbd Allāh b. ʿUmar 73 or 74/ 692-3 Medina 128 3.5 %10 Saʿīd b. al-Musayyab 94/712-334 Medina 123 3.4 %11 ʿAbd Allāh b. ʿAbbās 68/687-8 Mecca 122 3.4 %12 ʿAbd Allāh b. Masʿūd 32/652-3 Kufa 120 3.3 %13 ʿUmar b. ʿAbd

al-ʿAzīz (ʿUmar II)101/720 Medina, Shām 100 2.8 %

14 al-Ḥakam b. ʿUtayba 114/732 or 115/733-4

Kufa 92 2.5 %


Where does the Prophet Muḥammad fit into this analysis? Even though he appears in only 8.7% of these legal narrations, he emerges as the third most frequently cited authority. He is overwhelmingly the most significant authority in the “Book on Zakāt” and is the second most-frequently cited authority in the “Book on Ḥadd Crimes” (see Table 3). In the longer “Book on Divorce,” the Prophet is cited only 54 times among 1627 narrations (3.3%). This data suggests that prophetic ḥadīths played a more important role in the laws of worship than in the laws of transactions, a finding that is consistent with the proportionately larger books on prayer and pilgrimage in the canonical Sunni ḥadīth collections.

Table 3: Ibn Abī Shayba’s Top Authorities by Topic

Zakāt Divorce Ḥudūd

1) Prophet Muḥammad

(155 reports)

1) Ibrāhīm al-Nakhaʿī

(197 reports)

1) al-Ḥasan al-Baṣrī

(107 reports)

2) al-Ḥasan al-Baṣrī

(83) 2) al-Ḥasan al-Baṣrī

(173) 2) Prophet Muḥammad

(106)

3) Ibrāhīm al-Nakhaʿī

(81) 3) al-Shaʿbī (162) 3) al-Shaʿbī (94)

4) ʿUmar (64) 4) ʿAṭāʾ (94) 4) ʿUmar (84)

5) ʿAṭāʾ (61) 5) ʿAlī (92) 5) Ibrāhīm al-Nakhaʿī

(82)

6) Ibn ʿUmar (49) 6) Ibn al-Musayyab

(86) 6) ʿAlī (78)

7) ʿAlī (41) 7) ʿUmar (79) 7) ʿAṭāʾ (56)

8) al-Shaʿbī (40) 8) Ibn ʿAbbās (74) 8) al-Zuhrī (48)

9) ʿUmar b. ʿAbd al-ʿAzīz

(35) 9) Ibn Masʿūd (72) 9) ʿUmar b. ʿAbd al-ʿAzīz

(37)

10) al-Zuhrī (26) 10) Ibn ʿUmar (59) 10) al-Ḥakam b. ʿUtayba

(26)

10) Ibn ʿAbbās (26) The Prophet’s presence in legal chapters reaches its apogee when we shift the analysis from raw numbers of reports to the distribution of these reports across legal topics. If we assume that each chapter (bāb) in the Muṣannaf represents a single legal topic or position,


we find that the Prophet Muḥammad is quoted in 33% of the chapters on zakāt, in 21% of the chapters on ḥadd crimes, but in only 11% of the chapters on divorce. Even if we assume that Ibn Abī Shayba did not include all of the prophetic ḥadīths at his disposal in the Muṣannaf,35 it is clear that he refrained from invoking pro-phetic authority in the overwhelming majority of legal topics he addressed.

The isnāds of the Muṣannaf indicate that Ibn Abī Shayba exerted great effort to acquire his 315 narrations of prophetic ḥadīths.36 His primary teacher, Wakīʿ, provides 59 ḥadīths (18.7%) in the three books under consideration and the Kufan qāḍī Ḥafṣ b. Ghiyāth relates 20 of them. Sufyān b. ʿUyayna and ʿAbd al-Raḥīm b. Sulaymān each contribute 17 prophetic ḥadīths, while ʿAbd Allāh b. Numayr (d. 199/814-5) adds 16 to the Muṣannaf. Abū Khālid al-Aḥmar (d. 189/805) and Yazīd b. Hārūn also supply 13 ḥadīths apiece. The total number of ḥadīths that Ibn Abī Shayba transmits from these seven “Companions of ḥadīth” is 155, or 49% of his total yield, which means that he collected an average of just 5 ḥadīths from each of his approximately thirty additional teachers.

The efforts of Ibn Abī Shayba to collect prophetic ḥadīths during the second half of the 2rd/8th century can be discerned even more clearly from the “Book on Zakāt” in his Muṣannaf. We have seen that Ibn Abī Shayba musters an impressive collection of 155 pro-phetic ḥadīths in this book.37 Wakīʿ provides 28 of them and ʿAbd

35) Both Muslim and Ibn Māja include ḥadīths they claim to have heard from Ibn Abī Shayba in their collections that are not found in Baqī’s recension of the Muṣannaf. Of course, it is also highly probable that Ibn Abī Shayba had many additional Companion and Successor reports as well that did not make it into the surviving editions of the Muṣan-naf, so it is unlikely that the absence of these ḥadīths would affect my findings.36) This point is reinforced by the short “Book on the Judgments of the Messenger of God,” which consists exclusively of 81 prophetic ḥadīths on diverse legal topics. Ibn Abī Shayba collected these ḥadīths from 32 teachers; the only individuals from whom he acquired 4 or more ḥadīths are Wakīʿ (11 ḥadīths), Shabāba b. Sawwār (6), Ibn ʿ Uyayna (5), Muḥammad b. Bishr (5), Yazīd b. Hārūn (5), Abū ’l-Aḥwaṣ (4), Ibn ʿUlayya (4), and Ibn Abī Zāʾida (4); al-Muṣannaf, 9:483-506. In short, Ibn Abī Shayba averaged a mere 2.5 ḥadīths per teacher. 37) Five of these ḥadīths are transmitted by two of Ibn Abī Shayba’s teachers with otherwise identical isnāds and matns, so one could argue that there are actually 160 ḥadīths in it.


al-Raḥīm adds another 12. Three additional teachers--Abū Usāma, Ḥafṣ, and Ibn Numayr--contribute 9 ḥadīths apiece. Ibn Abī Shayba draws upon another seven teachers for 41 more ḥadīths, which brings his total to 108 ḥadīths from 12 teachers. The remaining ḥadīths come from 30 more teachers, 17 of whom contribute a single nar-ration apiece. If there were individual Iraqi ḥadīth scholars fabri cating large numbers of legal ḥadīths during the latter half of the 2nd/8th century, it appears that Ibn Abī Shayba either shunned them or only incorporated a small sample of their product in his Muṣan naf.

A closer examination of the prophetic material in the book on ḥadd crimes sheds additional light on the role of prophetic authority in the Muṣannaf. Ibn Abī Shayba explores the crimes of theft, fornication, intoxication, apostasy, and the false accusation of for-nication (qadhf) in Kitāb al-ḥudūd.38 I have grouped most of the remaining chapters of this book under the rubric of “general rules” (see Table 4).39 For the purpose of our analysis, it is necessary that we distinguish between a ḥadīth, which is a claimed statement, action or episode in the Prophet’s life, and a narration (or report), which is a specific account of this statement, action or episode attached to an isnād. This distinction allows us to reduce multiple narrations of the identical episode or statement to a single ḥadīth, an adjustment that is necessary for an accurate count of prophetic rulings. For example, the three prophetic reports in the Muṣannaf that state, essentially, “Whoever raises a sword against us no longer counts as

38) There are also five chapters on apostasy in the “Book on Military Conduct (siyar);” Ibn Abī Shayba, al-Muṣannaf, 11:283-96.39) Examples of “general rules” for which Ibn Abī Shayba provides prophetic ḥadīths include the prohibitions against shaving a criminal’s head as punishment (al-Muṣannaf, 9:389-90), inflicting ḥadd punishments in the mosque (9:391-2), and women’s testimony in ḥadd crimes (9:403-4); and details on the procedures for amputation (9:381-2) and flogging (9:397-8). The topic of banditry (ḥirāba) is usually considered one of the ḥadd crimes, but Ibn Abī Shayba discusses it in only two chapters of Kitāb al-ḥudūd (Bāb fī ’l-muḥārib yuʾtā bihi ilā ’l-imām; Bāb fī ’l-muḥārib idhā qatal wa-akhadh al-māl wa-akhāf al-sabīl); it is treated in greater depth in Kitāb al-siyar (11:296-302). Only one prophetic ḥadīth, which describes the Prophet’s harsh treatment of the bandit-apostates of ʿUrayna, is found among these chapters on ḥirāba, (11:283). Ibn Abī Shayba also discusses very briefly the punishment of the sorcerer (sāḥir) in Kitāb al-ḥudūd; 9:466-7.


one of us,”40 are equal to one ḥadīth since the multiple narrations communicate a single ruling. Were we to equate each narration (rather than each ḥadīth) with a legal ruling, we would inflate significantly the actual number of legal opinions attributed to the Prophet in the Muṣannaf.

Table 4: Overview of Prophetic Ḥadīths in the “Book on Ḥadd Crimes”

Subtopic of Ḥudūd Number of Ḥadīths

Number of Narrations

Number of Mursal or Munqaṭiʿ Narrations

Number of Ḥadīths in the Muṣannaf and Ṣaḥīḥ Muslim

General Rules 12 14 9 2Theft 14 20 7 4Fornication 19 44 7 7Intoxication 3 4 0 1Apostasy/ Conversion 12 22 5 6False Accusation of Fornication(qadhf )

1 1 1 0

Total 61 105 29 20

Four features of this analysis merit attention (Table 4). First, the sharp reduction of 105 narrations to 61 ḥadīths indicates a sub-stantially lower number of prophetic rulings than our initial findings suggested. Second, there is only a single prophetic report in the Muṣannaf related to the crime of the false accusation of fornication (qadhf)41 and not more than 19 ḥadīths for any single category or crime. Third, some of the ḥadīths concerning theft, fornication, and apostasy/conversion are transmitted in multiple narrations, whereas those on general rules and drinking are relayed primarily in single narrations.42 Finally, a high percentage of these narrations exhibit

40) Ibn Abī Shayba, al-Muṣannaf, 9:453-4 (Ḥudūd: Bāb fī ’l-rajul yaḍrib al-rajul bi-’l-sayf wa-yurfaʿ ʿalayhi ’l-silāḥ). This ḥadīth is transmitted from Ibn ʿUmar, Abū Hurayra, and Salama b. al-Akwaʿ.41) This discovery is even more surprising when we consider that approximately one-quarter of the chapters in Kitāb al-ḥudūd relate to qadhf.42) Only four ḥadīths are found in five or more narrations in Kitāb al-ḥudūd. The most exceptional episode concerns the story of Māʿiz b. Mālik al-Aslamī, who confessed four


defective isnāds, a finding that is parallel to Harald Motzki’s results in his study of ʿAbd al-Razzāq’s Muṣannaf.43 Evidently, some of the “Companions of ḥadīth” were not averse to transmitting flawed reports, a practice they shared with the “Companions of raʾy”.

Even though the Muṣannaf contains multiple narrations with inferior isnāds, we should not overlook the substantial presence of prophetic ḥadīths which Muslim scholars evaluated as authentic because this indicates that Ibn Abī Shayba was capable of transmitting the finest available narrations. Nearly one-third of the 61 ḥadīths in the “Book on Ḥadd crimes” are also found in either the “Book on Ḥadd crimes” or the “Book on Belief (īmān)” in Muslim’s Ṣaḥīḥ (Table 4). Muslim relays 14 of these ḥadīths directly from Ibn Abī Shayba and another six ḥadīths, with nearly identical texts and isnāds to ḥadīths found in the Muṣannaf, from Ibn Abī Shayba’s con-temporaries.44 A good example of Muslim’s appropriation of Ibn Abī Shayba’s ḥadīths is the case of the minimum value of stolen goods that necessitates the amputation of a thief ’s hand.45 Ibn Abī Shayba transmits five prophetic ḥadīths that specify different minimum values of stolen property for which amputation is valid, and Muslim includes narrations from him of four of them. These four ḥadīths found in both the Muṣannaf and Muslim’s Ṣaḥīḥ all claim to originate in Medina: two of them are from ʿĀʾisha→ ʿUrwa b. al-Zubayr,46

times to the Prophet that he committed adultery and was then stoned to death; see chapters 83, 118, and 128 of Kitāb al-ḥudūd.43) Harald Motzki found that only 68% of his sample of prophetic ḥadīths had isnāds and, of these, only 69% were continuous; Origins, 241-2.44) Al-Nawawī, Ṣaḥīḥ Muslim bi-sharḥ al-Nawawī, ed. Fūʾād ʿ Abd al-Bāqī, 18 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 2000), 11:151-88. Muslim transmits prophetic narrations found in Kitāb al-ḥudūd of the Muṣannaf directly from Ibn Abī Shayba in: Kitāb al-ḥudūd: Bābs 1, 4, 5, 6, 8; and Kitāb al-īmān: Bābs: 8, 32, 41. Muslim transmits ḥadīths found in the Muṣannaf from sources other than Ibn Abī Shayba in: Kitāb al-ḥudūd: Bābs 2, 3, 5, 9; and Kitāb al-īmān: Bābs 8, 41. 45) Ibn Abī Shayba, al-Muṣannaf, 9:284-9 (Ḥudūd: Bāb fī ’l-sāriq man qāla yuqṭaʿ fī aqall min ʿasharat darāhim; Bāb man qāla lā yuqṭaʿ fī aqall min ʿasharat darāhim); al-Nawawī, Ṣaḥīḥ Muslim, 11:151-5 (Ḥudūd: Bāb 1)46) “Amputation is for [theft of goods worth] one quarter dīnār and greater”; and “[The hand of the thief ] who stole something without value was not amputated at the time of the Prophet.” (In Ṣaḥīḥ Muslim, this report includes mention of the round shield found in Nāfiʿ’s narration below.)


one is from Ibn ʿUmar→ Nāfiʿ,47 and the final one is from Abū Hurayra→ Abū Ṣāliḥ.48 The one ḥadīth that Muslim does not include in his Ṣaḥīḥ relays an unusual position; since it is found in the Muṣannaf in only a single narration with an interrupted isnād, there can be little wonder as to why Muslim did not include it in his book.49

III. Qualitative Analysis

The data concerning the role of prophetic ḥadīths in the Muṣannaf of Ibn Abī Shayba presents us with a paradox: Muḥammad is the third most frequently cited authority, yet he appears in only 8.7% of the reports under examination. He is present in as many as 33% of the zakāt chapters, but only 11% of the divorce chapters. Let us now examine two specific legal topics in an effort to determine more precisely the scope of prophetic authority in Ibn Abī Shayba’s jurisprudence.

III.1 The ʿĪd al-Fiṭr Alms Tax

The obligatory alms tax at the conclusion of the month of Ramaḍān, known as ṣadaqat (or zakāt) al-fiṭr,50 is nowhere mentioned in the Qurʾān and is a good example of a universally-accepted sunnaic practice. The Muṣannaf of Ibn Abī Shayba addresses thirteen issues pertaining to ṣadaqat al-fiṭr in the “Book on Zakāt.”51 The Prophet is not cited in the chapters about paying ṣadaqat al-fiṭr with coins,52

47) “The Messenger of God amputated [the hand of the thief who stole] a round shield (mijann) that was worth three dirhāms.”48) “God curses the thief who steals an egg or a rope; their hands are to be amputated.”49) This ḥadīth sets the minimum value for amputation at five dirhāms. Its isnād is munqaṭiʿ since it traces directly from Ibn Masʿūd (d. 32/652-3) to al-Shaʿbī, who was born around the year 30/650; Ibn Abī Shayba, al-Muṣannaf, 9:284. 50) The terms ṣadaqa and zakāt are essentially interchangeable in the Muṣannaf and so I will reproduce whichever one Ibn Abī Shayba uses in the following section. See also the helpful entry, “ṣadaḳa,” The Encyclopaedia of Islam, CD-ROM Edition.51) Ibn Abī Shayba, al-Muṣannaf (Zakāt: Bābs 66-73, 107, 117, 134, 145, 153).52) Ibn Abī Shayba, al-Muṣannaf, 4:282 (Zakāt: Bāb fī iʿṭāʾ al-darāhim fī zakāt al-fiṭr).


paying on behalf of a Christian slave or a co-owned slave,53 whether the Bedouins owe it,54 or if one can pay it a day or two prior to the ʿĪd.55 He does, however, appear in the following four topics:

1) Zakāt al-fiṭr is collected prior to the [ʿĪd] Prayer;56 2) The amount of ṣadaqat al-fiṭr is half a ṣāʿ57 of wheat (burr);58 3) The amount of ṣadaqat al-fiṭr is one ṣāʿ of barley, dates, or

wheat (qamḥ);59

4) Ṣadaqat al-fiṭr is obligatory.60

There are only four uninterrupted and two mursal prophetic ḥadīths in these chapters, all of which record statements of Companions or Successors describing how things supposedly were at the time of the Prophet:

1) Ibn ʿAbbās (d. 68/687-8) said: “The Messenger of God made ṣadaqat al-fiṭr obligatory upon every freeman or slave, whether a youth or adult, male or female, of the amount of one ṣāʿ of dates or barley, or one half ṣāʿ of wheat (burr).”61

53) Ibn Abī Shayba, al-Muṣannaf, 4:283 and 335 (Zakāt: Bāb mā qālū fī ’l-ʿabd al-naṣrānī; Bāb fī ’l-mamlūk yakūn bayna rajulayn ʿalayhi ṣadaqat al-fiṭr).54) Ibn Abī Shayba, al-Muṣannaf, 4:324-5 (Zakāt: Bāb fī ’l-aʿrāb ʿalayhim zakāt al-fiṭr).55) Ibn Abī Shayba, al-Muṣannaf, 4:369 (Zakāt: Bāb fī taʿjīl zakāt al-fiṭr qabl al-fiṭr bi-yawm aw yawmayn; also a few reports in Bāb zakāt al-fiṭr tukhraj qabl al-ṣalāt).56) Ibn Abī Shayba, al-Muṣannaf, 4:274-6 (Zakāt: Bāb zakāt al-fiṭr tukhraj qabl al-ṣalāt).57) The quantity of one ṣāʿ has varied and chapter 73 (Bāb bi-ayy ṣāʿ yuʿṭī fī ṣadaqat al-fiṭr) of Kitāb al-zakāt in the Muṣannaf addresses exactly whether the local ṣāʿ (and mudd) measurement or the Medinan measurement should be used for calculating ṣadaqat al-fiṭr. According to the modern Muʿjam lughat al-fuqahāʾ (Beirut: Dār al-Nafāʾis, 1996) by Muḥammad Rawwās Qalʿajī, a mudd is 543 grams of grain (815.39 for the Ḥanafīs) and a ṣāʿ is 2172 grams of grain (3261.5 grams for the Ḥanafīs); p. 419. See also, “ṣāʿ,” The Encyclopaedia of Islam, CD-ROM Edition.58) Ibn Abī Shayba, al-Muṣannaf, 4:276-9 (Zakāt: Bāb fī ṣadaqat al-fiṭr man qāla niṣf ṣāʿ burr).59) Ibn Abī Shayba, al-Muṣannaf, 4:280-2 (Zakāt: Bāb man qāla ṣadaqat al-fiṭr ṣāʿ min shaʿīr aw tamr aw qamḥ).60) Ibn Abī Shayba, al-Muṣannaf, 4:360-1 (Zakāt: Bāb man awjaba ṣadaqat al-fiṭr wa qāla hiya wājiba).61) Ibn Abī Shayba, al-Muṣannaf, 4:276 (Zakāt: Bāb fī ṣadaqat al-fiṭr man qāla niṣf ṣāʿ burr). An abbreviated narration of this ḥadīth is also found in chapter 145.


2) Ibn ʿUmar (d. 73 or 74/692-3) said: “The Messenger of God made obligatory ṣadaqat al-fiṭr, which is a ṣāʿ of dates or a ṣāʿ of barley.” Nāfiʿ said: “Ibn ʿUmar used to pay it for his dependent wives and their slaves, except for two mukātab slaves.”62

3) Ibn ʿUmar said: “The Messenger of God made obligatory ṣadaqat al-fiṭr, which is a ṣāʿ of dates or a ṣāʿ of barley, for every slave or free person, youth or adult.”63

4) Abū Saʿīd al-Khudrī (d. 74/693) said: “By God, I will only pay the ṣadaqa we paid at the time of the Messenger of God—a ṣāʿ of dates, or a ṣāʿ of barley, or a ṣāʿ of raisins, or a ṣāʿ of cottage cheese (aqiṭ).”64

5) Al-Zuhrī (d. 124/742) said: “The Messenger of God com-manded [Muslims] to bring forth the zakāt al-fiṭr prior to the [ʿĪd] prayer.”65

6) Saʿīd b. al-Musayyab (d. 94/712-3) said: [The Messenger of God] was asked about ṣadaqat al-fiṭr, to which he replied: “[It is] half a ṣāʿ of wheat (burr) or a ṣāʿ of dates or barley for every young or adult [free-person] or slave.”66

While it is possible that these ḥadīth provided decisive evidence concerning the amount of ṣadaqat al-fiṭr owed by each household member, each one of them is accompanied in the Muṣannaf by the

62) Ibn Abī Shayba, al-Muṣannaf, 4:279 (Zakāt: Bāb fī ṣadaqat al-fiṭr man qāla niṣf ṣāʿ burr). This ḥadīth and the following one were discussed extensively in an exchange during the 1990s between G.H.A. Juynboll and Harald Motzki; see Juynboll, “Nāfiʿ, the mawlā of Ibn ʿUmar, and his position in Muslim Ḥadīth Literature,” Der Islam, 70 (1993): 207-44; and Motzki, “Quo vadis Ḥadī¨-Forschung? Eine kritische Untersuchung von G.H.A. Juynboll: ‘Nāfiʿ, the mawlā of Ibn ʿ Umar, and his position in Muslim Ḥadīth Literature’,” Der Islam, 73 (1996): 40-80 and 193-231.63) Ibn Abī Shayba, al-Muṣannaf, 4:280 (Zakāt: Bāb man qāla ṣadaqat al-fiṭr ṣāʿ min shaʿīr aw tamr aw qamḥ).64) Ibid.65) Ibn Abī Shayba, al-Muṣannaf, 4:274 (Zakāt: Bāb zakāt al-fiṭr tukhraj qabl al-ṣalāt). This ḥadīth is mursal.66) Ibn Abī Shayba, al-Muṣannaf, 4:277 (Zakāt: Bāb fī ṣadaqat al-fiṭr man qāla niṣf ṣāʿ burr). This ḥadīth is mursal. For more on Ibn al-Musayyab’s death date, see above note 34.


opinions of a wide array of Companions and Successors who reiterate the point or expand upon it. The most vivid example of this practice is found in chapter 67, “Ṣadaqat al-fiṭr is half a ṣāʿ of wheat,” in which 21 authorities, in the following sequence, overwhelm the prophetic ḥadīths transmitted by Ibn ʿAbbās, Ibn ʿUmar, and Ibn al-Musayyab:67

1) ʿUthmān b. ʿAffān (d. 35/656): [Ṣadaqat al-fiṭr is] a ṣāʿ of dates or half a ṣāʿ of wheat (burr).

2) Abū Bakr [al-Ṣiddīq; d. 13/634]: [It is] half a ṣāʿ of food (ṭaʿām).

3) Ibrāhīm al-Nakhaʿī (d. 95/714): [It is] half a ṣāʿ of wheat (qamḥ) for each free person or slave, youth or adult.

4) Mujāhid b. Jabr (d. between 102/720-1 and 104/722-3): [It is] half a ṣāʿ of wheat, a complete ṣāʿ of dates, raisins, cottage cheese (aqiṭ), or barley.

5) al-Shaʿbī (d. between 103/721 and 110/728): [It is] half a ṣāʿ of wheat or a ṣāʿ of dates or barley for free people who fasted and for slaves who fasted or did not fast.

6) al-Ḥasan al-Baṣrī (d. 110/728) agreed with al-Shaʿbī that free people who did not fast did not owe any ṣadaqat al-fiṭr.

7) Ibn Masʿūd (d. 32/652-3): [It is] two mudds68 of wheat (qamḥ) or a ṣāʿ of dates or barley.

8) Jābir b. ʿAbd Allāh (d. between 73/692-3 and 78/697-8): (same as Ibn Masʿūd).

9) Ṭāwūs (d. 106/725): [It is] half a ṣāʿ of wheat or a ṣāʿ of dates.

10) Makḥūl [al-Shāmī; d. 112/730-1 or 113/731-2]: [It is] a ṣāʿ of dates or barley.

11) ʿAṭāʾ b. Abī Rabāḥ (d. 114/732 or 115/733): (same as Ibn Masʿūd).

12) Ibn al-Zubayr (d. 73/692): (same as Ibn Masʿūd).13) al-Ḥakam b. ʿUtayba (d. 114/732 or 115/733-4): [It is] half

a ṣāʿ of wheat (ḥinṭa).

67) Ibn Abī Shayba, al-Muṣannaf, 4:276-9.68) Two mudds are equivalent to one half ṣāʿ.


14) Ḥammād [b. Abī Sulaymān; d. 119/737 or 120/738]: (same as al-Ḥakam).

15) ʿAbd al-Raḥmān b. al-Qāsim (d. 126/743-4): (same as al-Ḥakam).

16) Saʿd b. Ibrāhīm (d. before 127/745): (same as al-Ḥakam).69

17) ʿAbd Allāh b. Shaddād (d. 82/701): [It is] half a ṣāʿ of wheat (ḥinṭa) or flour (daqīq).

18) ʿAlī (d. 40/661): [It is] a ṣāʿ of dates or a ṣāʿ of barley or a half ṣāʿ of wheat (burr).

19) Asmāʾ [bint Abī Bakr; d. 73/692]: [It is] half a ṣāʿ of wheat (burr) or a ṣāʿ of dates or barley for both living and deceased family members.70

20) ʿUmar b. ʿAbd al-ʿAzīz (d. 101/720) wrote to the Basrans: “Ṣadaqa of Ramaḍān is incumbent upon every child and adult, free or slave, male or female, of the amount of a half ṣāʿ of wheat or a ṣāʿ of dates.”

21) Ibn ʿAbbās (d. 68/687-8): [It is] a ṣāʿ of dates or half a ṣāʿ of food (ṭaʿām).

Seen from this angle, the few prophetic ḥadīths concerning ṣadaqat al-fiṭr do not appear to be decisive proofs for Ibn Abī Shayba. Rather, Ibn Abī Shayba transmits them alongside the putative opinions of the earliest religious authorities of Sunni Islam in order to impress upon his readers that the overwhelming majority of these pious men and women are in agreement upon this legal topic.

III.2 The Khul ʿ Procedure

The second case study that facilitates our assessment of the role of prophetic ḥadīths in Ibn Abī Shayba’s jurisprudence is the khul ʿ procedure, in which a woman returns her dower in order to terminate her marriage. This procedure is based primarily on the qurʾānic sentence, “If you suspect that the couple may not be able to stay

69) The opinions of al-Ḥakam, Ḥammād, ʿ Abd al-Raḥmān b. al-Qāsim, and Saʿd b. Ibrāhīm are all transmitted by Shuʿba→ Abū Dāwūd al-Ṭayālisī in a single report (#10442).70) Note that Asmāʾ bint Abī Bakr is the mother of Ibn al-Zubayr, whose opinion is also cited in this chapter.


within the bounds set by God, then there will be no blame on either of them if the woman opts to give something for her release,”71 and the story of the wife of Thābit b. Qays, whom the Prophet instructed to return her husband’s gifts in order to be free of him.72 Curiously, Ibn Abī Shayba relates only a highly abbreviated mursal narration of the story of the wife of Thābit b. Qays that has a peculiar addition in which the Prophet tells the woman, “Do not give back to [your husband] in excess of what he gave you.”73

There are 23 chapters totaling 152 reports on the topic of khul ʿ in the Muṣannaf of Ibn Abī Shayba. The opinions of 53 individuals, including the Prophet, are cited in these chapters, although 21 of them appear in only a single narration. As might be expected from the earlier statistics, al-Shaʿbī, al-Ḥasan al-Baṣrī, and Ibrāhīm al-Nakhaʿī appear 17, 16, and 15 times, respectively, whereas ʿAlī and ʿUmar are called upon 7 and 6 times, respectively. Ibn al-Musayyab, al-Zuhrī, and ʿAṭāʾ voice their opinions in 28 narrations, while the remaining 23 authorities, including the Prophet, are cited on any-where from two to six occasions.74

There are only six prophetic reports related to khul ʿ in four chapters of the Muṣannaf. Three of these prophetic narrations are found in the chapter entitled, “What is disapproved of for those

71) Fa-in khiftum an-lā yuqīmā ḥudūd Allāh fa-lā junāḥa ʿalayhimā fī mā-’ftadat bihi (If you suspect that the couple may not be able to stay within the bounds set by God, then there will be no blame on either of them if the woman opts to give something for her release); The Qurʾan, trans. M.A.S. Abdel Haleem (Oxford, 2004), 26 (slightly modified).72) This ḥadīth can be found in: Mālik, al-Muwaṭṭaʾ (Ṭalāq: Bāb 11); al-Dārimī, Sunan (Ṭalāq: Bāb 7); al-Bukhārī, Ṣaḥīḥ (Ṭalāq: Bābs 12, 13); Ibn Māja, Sunan (Ṭalāq: Bābs 21-3); Abū Dāwūd, Sunan (Ṭalāq: Bāb 18); al-Tirmidhī, al-Jāmiʿ (Ṭalāq: Bāb 10).73) Ibn Abī Shayba, al-Muṣannaf, 6:504 (Ṭalāq: Bāb man kariha an yaʾkhudh min al-mukhtaliʿa akthar mimmā aʿṭāhā).74) These authorities are the Companions ʿ Uthmān (6 reports), Ibn ʿ Abbās (6), Ibn ʿ Umar (4), Ibn Masʿūd (3); and the Successors Ṭāwūs (6), Shurayḥ (4), Qabīṣa b. Dhuʾayb (3), Maymūn b. Mihrān (3), Ḥammād b. Abī Sulaymān (3), Ibn Sīrīn (3), Abū Salama (3), ʿIkrima (3), ʿUrwa b. al-Zubayr (3), al-Ḍaḥḥāk (2), Khilās (2), Sulaymān b. Yasār (2), Makḥūl (2), Qatāda (2), al-Qāsim b. Muḥammad (2), Miqsam (2), al-Ḥakam b. ʿUtayba (2), Jābir b. Zayd (2), and ʿAmr b. Shuʿayb (2). The final authority is the Prophet (6 reports).


women who seek khul ʿ.”75 Ibn Abī Shayba transmits a mursal trans-mission of the ḥadīth, “The Prophet said, ‘Those who do khul ʿ and tear themselves away [from their husbands] (muntaziʿāt) are among the hypocrites’,”76 along with two narrations of the ḥadīth, “The Prophet said, ‘Any woman who asks her non-abusive husband for a divorce will never enjoy the scent of Paradise’.”77 One of these two narrations is mursal from the Basran Successor Abū Qilāba (d. between 104/722-3 and 107/725-6), while the other one has a continuous isnād.78 The remaining three ḥadīths also lack Com-panions in their isnāds and, as can be seen from the following summary, depict the Prophet as merely one among a host of early religious authorities: 1) To what is a khul ʿ equivalent?79

A. It is equivalent to a single irrevocable divorce (taṭlīqa bāʾina),80 according to:

Abū Salama, ʿAṭāʾ, al-Ḥasan al-Baṣrī,81 Ibn Masʿūd, Ibn al-Musayyab, Ibrāhīm al-Nakhaʿī, Qabīṣa b. Dhuʾayb,82 Saʿīd b. Jubayr, al-Shaʿbī, Shurayḥ, Ubayy, ʿUrwa, ʿUthmān, and al-Zuhrī.

75) Ibn Abī Shayba, al-Muṣannaf, 6:661-2 (Ṭalāq: Bāb mā dhukira min al-kirāha an yaṭlubna ’l-khulʿ).76) A ḥadīth with a similar text but totally different isnād is relayed by al-Tirmidhī, who evaluates it as “poorly attested” and possessing a weak isnād; al-Tirmidhī, al-Jāmiʿ (Ṭalāq wa Liʿān: Bāb 11).77) This ḥadīth is not found in the Ṣaḥīḥs of al-Bukhārī or Muslim, but it is present in al-Dārimī, Sunan (Ṭalāq: Bāb 6); Ibn Māja, Sunan (Ṭalāq: Bāb 21); Abū Dāwūd, Sunan (Ṭalāq: Bāb 18); al-Tirmidhī, al-Jāmiʿ (Ṭalāq: Bāb 11).78) The missing links that appear in the second narration are Abū Asmāʾ [ʿAmr b. Marthad] ←Thawbān.79) Ibn Abī Shayba, al-Muṣannaf, 6:488-92 (Ṭalāq: Bāb mā qālū fī ’l-rajul idhā khalaʿ imraʾatahu kam yakūn min al-ṭalāq).80) In other words, the husband cannot take her back as his wife during her waiting period, but he can remarry her with a new dower after her waiting period has ended if she approves. A single divorce usually implies that the husband has the right to take her back during her waiting period.81) In one narration, he adds that any conditions she imposes upon him are valid.82) The Medinan Successor Qabīṣa (d. 86/705) does not use the term bāʾina; rather he just says that the husband must give her a new dower if they remarry.


B. It is equivalent to a single divorce, unless she specified some-thing else: ʿUthmān.

C. It is equivalent to a single divorce: ʿAlī, Prophet,83 Makḥūl,84 and ʿUthmān.

2) Can the husband demand more than what he has given his wife for her khul ʿ payment? A. It is reprehensible for him to take more than he has given

her:85 ʿAlī, ʿAmr b. Shuʿayb,86 ʿAṭāʾ, al-Ḥakam, Ḥammād b. Abī

Sulaymān, al-Ḥasan al-Baṣrī, Ibn al-Musayyab, ʿIkrima, May-mūn,87 Prophet,88 al-Shaʿbī, Ṭāwūs,89 al-Zuhrī.

B. It is perfectly acceptable for him to do this:90 al-Ḍaḥḥāk,91 Ibn ʿAbbās, Ibn ʿUmar, Ibrāhīm al-Nakhaʿī,

Mujāhid, ʿUmar.3) How long is the waiting period (ʿidda) of the woman who does

the khul ʿ procedure? A. Same as the divorced woman (muṭallaqa):92

Abū ʿIyāḍ,93 ʿAlī, al-Ḥasan al-Baṣrī, Ibn al-Musayyab,

83) This ḥadīth is mursal from Ibn al-Musayyab.84) One narration says he cannot take her back unless she wishes so.85) Ibn Abī Shayba, al-Muṣannaf, 6:504-5 (Ṭalāq: Bāb man kariha an yaʾkhudh min al-mukhtaliʿa akthar mimmā aʿṭāhā).86) ʿAmr b. Shuʿayb (d. 118/736) is a Medinan Successor and great-grandson of ʿ Abd Allāh b. ʿAmr b. al-ʿĀṣ; al-Dhahabī, Siyar, 5:165-80.87) Maymūn b. Mihrān (d. 117/735) is a Successor and manumitted slave who grew up in Kufa and later settled in Raqqa; al-Dhahabī, Siyar, 5:71.88) This ḥadīth is mursal from ʿAṭāʾ.89) Ṭāwūs goes so far as to declare this practice unlawful (lā yaḥill).90) Ibn Abī Shayba, al-Muṣannaf, 6:505-7 (Ṭalāq: Bāb man rakhkhaṣa an yaʾkhudh min al-mukhtaliʿa akthar mimmā aʿṭāhā).91) Al-Ḍaḥḥāk b. Muzāḥim is a Successor from Balkh who studied in Kufa and transmitted qurʾānic exegesis ascribed to Ibn ʿAbbās, which he almost certainly obtained from one of his pupils. Al-Dhahabī offers possible death dates of 102/720-1, 105/723-4, and 106/724-5; Siyar 4:598-600. 92) Ibn Abī Shayba, al-Muṣannaf, 6:493-4 (Ṭalāq: Bāb mā qālū fī ʿ iddat al-mukhtaliʿa kayfa hiya). In other words, her ʿidda lasts three menstrual cycles, three months if she is not menstruating, or until delivery of her child if she is pregnant. 93) There are only two men known as Abū ʿ Iyāḍ in the kunyā section of Ibn Ḥajar’s Tahdhīb al-tahdhīb, and considerable confusion exists over the identity of the more probable


Ibrāhīm al-Nakhaʿī, Khilās,94 Sālim,95 al-Shaʿbī, Sulaymān b. Yasār, and ʿUrwa.

B. One menstrual cycle:96 Ibn ʿAbbās, Ibn ʿUmar,97 Prophet,98 and ʿUthmān.

The muted role of the Prophet in these three legal topics and his total absence from issues concerning the validity of a divorce after the khul ʿ procedure has been completed,99 maintenance and lodging during the ʿidda of the woman who executes a khul ʿ,100 the khul ʿ initiated during the husband’s terminal illness,101 along with several others, reinforces our finding that the legal rulings in the Muṣannaf derive overwhelmingly from the opinions of a dozen or so Successors and Companions, and that the role of prophetic ḥadīths is essentially peripheral to Ibn Abī Shayba’s jurisprudence.

IV. Conclusion

The theory that early Muslim jurisprudence was largely the handiwork of the Successors and subsequent generations of scholars has long been advocated almost exclusively on the basis of studies drawing upon the proto-madhhab books of the early “Companions of raʾy” without taking into consideration the early works of the “Com-panions of ḥadīth”.102 This situation has begun to change with

candidate, Abū ʿ Iyāḍ al-Madanī; Ibn Ḥajar, Tahdhīb al-tahdhīb, 12 vols. (Beirut: Dār Ṣādir, 1968 [reprint of the 1907-9 Hyderabad edition]); 12:194-5.94) Khilās b. ʿAmr is a Basran Successor; al-Dhahabī, Siyar, 4:491. Ibn Ḥajar reports that he died just prior to the year 100/718-9; Tahdhīb al-tahdhīb, 3:178.95) His full name is Sālim b. ʿAbd Allāh b. ʿUmar b. al-Khaṭṭāb.96) Ibn Abī Shayba, al-Muṣannaf, 6:594-5 (Ṭalāq: Bāb man qāla ʿiddatuhā ḥayḍa).97) In one narration, Ibn ʿUmar claims to have been of the opinion that her waiting period should be three cycles (like a divorced woman), until he heard ʿUthmān give his verdict in the case of a woman named Rubayyiʿ that it was only one cycle. Sulaymān b. Yasār also relates this episode, but does not indicate whether he agrees with this position.98) This ḥadīth is mursal from ʿIkrima.99) Ibn Abī Shayba, al-Muṣannaf, 6:497-500.100) Ibn Abī Shayba, al-Muṣannaf, 6:495, 500, 536-7.101) Ibn Abī Shayba, al-Muṣannaf, 6:509-10.102) This approach is epitomized by Norman Calder, who claims that his methodology is,


Harald Motzki’s study of ʿAbd al-Razzāq’s Muṣannaf, Susan Spectorsky’s studies of the fiqh of Ibn Ḥanbal and Ibn Rāhawayh,103 and Chris-topher Melchert’s article on ḥadīth-scholar jurisprudence.104 All of these valuable studies have skirted around the Muṣannaf of Ibn Abī Shayba, which, I have argued here, is one of the most significant books for elucidating the legal thought and methodology of the “Companions of ḥadīth”. Assuming that Ibn Abī Shayba did not fabricate the bulk of its narrations,105 the importance of the Muṣan-naf derives from the fact that all of its reports date to the 2nd/8th century and are contemporary with the great jurists Abū Yūsuf, Muḥammad b. al-Ḥasan al-Shaybānī, and al-Shāfiʿī.

How significant a role do prophetic ḥadīths play in the legal chapters in the Muṣannaf of Ibn Abī Shayba? While the Prophet Muḥammad emerges as the third most popular authority, he appears in only 8.7% of the narrations in the three books under con-sideration. Despite the prominence of prophetic ḥadīths in the books on zakāt and ḥudūd, their utility is marginal when it comes to a topic such as the regulations of the ʿĪd al-Fiṭr alms tax, essentially absent in the case of the crime of false accusation of fornication, and far from decisive concerning the minimum value for which the hand of a thief must be amputated. The lack of influence of prophetic authority on divorce law is even more striking, as Muḥammad appears in a mere 3.3% of the reports on this topic

“a close literary analysis of illustrative passage from all the major early juristic texts;” Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), ix.103) Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin: University of Texas Press, 1993); idem, “Aḥmad ibn Ḥanbal’s Fiqh,” Journal of the American Oriental Society, 102, no. 3 (1982), 461-465; idem, “Ḥadīth in the Responses of Isḥāq b. Rāhwayh,” Islamic Law and Society, 8, no. 3 (2001), 407-431.104) Melchert, “Traditionist-Jurisprudents.” 105) Ibn Abī Shayba lived in the heartlands of ḥadīth and āthār transmission among many scholars who studied with his teachers and would have registered some record of their complaints of his transmissions with the ḥadīth-transmitter critics of his day had he been forging materials wholesale. Even G.H.A. Juynboll appears optimistic about the authenticity of the postprophetic reports in books like Ibn Abī Shayba’s Muṣannaf. In one article, he writes that these opinions, “may in fact be historically ascribable to the 1st/7th century personalities under whose names this category of transmitted material is preserved;” see Juynboll, “Some Notes on Islam’s First Fuqahāʾ Distilled from early Ḥadīt Literature,” Arabica, 39 (1992): 287-314, at 300.


and is cited in only four cases concerning the khul ʿ procedure. Finally, many of the narrations of prophetic ḥadīths in the Muṣannaf have defective isnāds, a feature which might help explain the dramatic growth of ḥadīth criticism from the time of Ibn Abī Shayba’s teachers, such as Wakīʿ, Ibn al-Mubārak, and Yaḥyā b. Saʿīd al-Qaṭṭān, to his contemporaries, Ibn Saʿd, Ibn Maʿīn, Ibn al-Madīnī, and Ibn Ḥanbal.106

This paucity of legal prophetic ḥadīth is also visible in the trans-mission profiles of Ibn Abī Shayba’s three most frequently cited teachers. While it would be erroneous to assume that Ibn Abī Shayba incorporated all of his teachers’ narrations in his Muṣannaf, at the very least, we can acquire a sense of what they had to offer him. As we shall see, each of these teachers transmitted a unique set of primarily Companion and Successor reports.

Wakīʿ b. al-Jarrāḥ’s 663 reports, which comprise 18% of the legal content of the Muṣannaf, mention at least one opinion of over 60 early Muslim authorities. Wakīʿ cites the opinion of al-Shaʿbī 75 times, Ibrāhīm al-Nakhaʿī 61 times, and the Prophet Muḥammad 59 times. ʿAlī, ʿUmar, al-Ḥasan al-Baṣrī, and Ibn Masʿūd appear respectively on 45, 39, 31, and 30 occasions, while Ibn ʿUmar and ʿAṭā each make 28 appearances. Even the third caliph ʿUthmān is cited a dozen times, something one might not expect from a pre-eminent Kufan scholar like Wakīʿ.

Ibn Abī Shayba’s narrations from Ḥafṣ b. Ghiyāth and ʿAbd al-Aʿlā are substantially different from both Wakīʿ’s profile and each other. Ḥafṣ’s 181 reports contain 17-23 opinions apiece of Ibrāhīm al-Nakhaʿī, al-Shaʿbī, al-Ḥasan al-Baṣrī, ʿUmar and ʿAlī, while 11% of them are prophetic ḥadīths. By contrast, a slight majority of ʿAbd al-Aʿlā’s 174 narrations are just the opinions of al-Zuhrī (48 reports) and al-Ḥasan al-Baṣrī (45 reports), and Ibn Abī Shayba transmits only a single prophetic ḥadīth from him.107 Ḥafṣ’s isnāds are more diverse than those of ʿAbd al-Aʿlā, as the latter transmits nearly all

106) For the rise and development of ḥadīth criticism, see Lucas, Constructive Critics, 113-56.107) Qatāda, Ibn al-Musayyab, and Ibn Sīrīn also voice their opinions 12, 11, and 10 times, respectively, in ʿAbd al-Aʿlā’s narrations.


of his Zuhrī reports from Maʿmar and his Ḥasan reports from Yūnus b. ʿUbayd (d. 139/756-7) and Hishām al-Dastawāʾī (d. 153/770 or 154/771). This brief excursus into the transmission profiles of three of Ibn Abī Shayba’s teachers suggests that each of the “Companions of ḥadīth” offered him a unique array of Companion and Successor reports and only occasionally provided him with prophetic ḥa- dīths.

Analysis of the Muṣannaf of Ibn Abī Shayba reveals that the “Companions of ḥadīth” relied very heavily on the teachings of most of the same religious authorities as those whom the “Companions of raʾy” valued. Four of the most-frequently cited men in the Muṣan- naf—al-Ḥasan al-Baṣrī, Ibrāhīm al-Nakhaʿī, al-Shaʿbī and ʿAṭāʾ— are also among the most frequently cited authorities in the early legal treatises that Joseph Schacht analyzed in The Origins of Mu hamma dan Jurisprudence.108 The most important prophetic Com-panions in the eyes of the “Companions of ḥadīth”—ʿUmar, ʿAlī, Ibn ʿUmar, Ibn Masʿūd, and Ibn ʿAbbās—are also, according to Schacht, the most important prophetic Companions for the “Com-panions of raʾy.”109 Even Abū Ḥanīfa’s master teacher, Ḥammād b. Abī Sulaymān, appears regularly in the Muṣannaf of Ibn Abī Shayba, occasionally even in narrations transmitted by Shuʿba b. al-Ḥajjāj (d. 160/776), one of the most highly respected members of the “Companions of ḥadīth”.110 Regardless of one’s opinion of the authenticity of this vast corpus of reports, it is undeniable that both the “Companions of ḥadīth” and the “Companions of raʾy” tell essentially the same story about the origins of Muslim juris-prudence, and that both parties rely upon the legal opinions of most of the same early authorities.

108) Schacht, Origins, 228-37 and 250-1. Ibn al-Musayyab and al-Zuhrī are also common to both parties; ibid., 243-6.109) Schacht, Origins, 25, 30-1, 249-50.110) Christopher Melchert reports al-Fasawī’s observation that Shuʿba said, “al-Ḥakam was greater as to hadith, while Ḥammād was the more excellent of them as to raʾy,” in his article “How Ḥanafism came to Originate in Kufa,” 337. Shuʿba reports the opinions of Ḥammād on 45 occasions in the chapters of the Muṣannaf under review; for example, see Kitāb al-ḥudūd: Bābs 22, 36, 38, 43, 46, 56, 63, 67, 80, 82, 118, 140, 149. Ḥammād’s personal opinions appear 79 times (2%) in the portion of the Muṣannaf under consideration.


Where the “Companions of ḥadīth”, or at least Ibn Abī Shayba, break with the “Companions of raʾy” is over the latter party’s willing-ness to speculate upon a constellation of matters untouched by the Companions and Successors and to overturn their precedents. For some unspecified reason, Ibn Abī Shayba refrains from relaying almost any personal legal opinions, not only from Abū Ḥanīfa, but also from the ḥadīth-friendly Sufyān al-Thawrī, al-Awzāʿī, and Mālik.111 This openness to the opinions of early 2nd/8th century religious authorities and boycott of the opinions of later jurists is a subtle difference between Ibn Abī Shayba and ʿAbd al-Razzāq, the latter of whom includes numerous personal opinions of Sufyān al-Thawrī in his Muṣannaf.112 We seem to have located a division within the “Companions of ḥadīth” in the early ʿAbbāsid period between one party, which relied almost exclusively upon the legal opinions of the Prophet, Companions, and Successors, and another, which drew upon the teachings of these same religious authorities, along with the opinions of a handful of post-Successor jurists. This refined understanding of the ḥadīth scholars helps explain why al-Bukhārī, like Ibn Abī Shayba, usually shuns the teachings of post-Successor jurists in his Ṣaḥīḥ, in contrast to his pupil, al-Tirmidhī, who includes the opinions of al-Thawrī, Mālik, al-Shāfiʿī, the Kufans (i.e., Abū Ḥanīfa and his disciples), and even Ibn Ḥanbal and Ibn Rāhawayh, in his canonical Jāmiʿ.

More importantly, we can conclude from this investigation of the Muṣannaf of Ibn Abī Shayba that the role or authority of prophetic ḥadīths in Muslim jurisprudence was probably not a burning issue for most religious scholars in early 3rd/9th century Iraq, for the simple reason that the quantity (and quality) of legal ḥadīths was modest and of limited utility relative to the magnificent volume of Com-panion and Successor reports in circulation.113 Rather, the real

111) Only 10 of the 3628 narrations under consideration report Sufyān al-Thawrī’s personal opinions; one of them mentions the opinion of Abū Ḥanīfa, while none of them cite the opinions of Mālik or al-Awzāʿī.112) Motzki found that approximately 19% of al-Thawrī’s contribution to the Muṣannaf of ʿAbd al-Razzāq consisted of his personal opinions, which would equal 4% of the entire Muṣannaf; Origins, 58-9.113) The enormous Musnad of Ibn Ḥanbal, which contains about 27,600 reports, has been


debate was over the right of the post-Successor jurists to break new ground and issue opinions on topics for which either no precedents existed or which challenged the precedents set by the earliest genera-tions of pious authorities. While the “Companions of raʾy” were zealous champions of the earlier authorities and a few post-Successor jurists, the 3rd/9th-century “Companions of ḥadīth” were split over the authority of the post-Successor jurists.

Seen in this light, I propose that Ibn Abī Shayba is representative of the strictest “Companions of ḥadīth” who addressed a wide array of legal topics without any real input from post-Successor jurists, while his contemporary, Ibn Ḥanbal, may have been the most suc-cessful ḥadīth scholar to undergo adoption by factions from both those “Companions of ḥadīth” who accepted him as a post-Successor legal authority, along with a group of “Companions of raʾy” who admired his opinions. Al-Shāfiʿī (along with Abū Ḥanīfa at a much later date) was the greatest jurist to become a hero for another segment of the “Companions of ḥadīth” who accepted his personal opinions and decided not to join the emerging Ḥanbalī or Mālikī schools.114 Finally, Mālik (or perhaps Sufyān al-Thawrī or al-Awzāʿī)

used as evidence that Iraq was awash in ḥadīths in the early 3rd/9th century; see, for example, G.H.A. Juynboll, Muslim Tradition (Cambridge: Cambridge University Press, 1983), 24-30. However, this enormous number of reports is seriously misleading with respect to legal ḥadīths, since the Musnad is highly repetitive, contains many defective narrations, and, according to Christopher Melchert, nearly half of its content is irrelevant to Muslim jurisprudence; see Christopher Melchert, “The Musnad of Aḥmad ibn Ḥanbal: How it Was Composed and What Distinguishes It from the Six Books,” Der Islam, 82 (2005): 32-51, at 45. A more accurate picture of the scale of legal ḥadīths comes from Abū Dāwūd al-Sijistānī, who claims that he could not find more than 4800 reports (including those concerning ritual practices and possibly matn repetitions) in his quest throughout the Muslim lands for this material; Risālat Abī Dāwūd ilā ahl Makka fī waṣf Sunanih, ed. Muḥammad al-Ṣabbāgh (Dār al-ʿArabiyya, 1975?), 32. An even more suggestive statistic is that there are only 2161 ḥadīths in al-Rāfiʿī’s (d. 623/1226) large commentary on al-Ghazālī’s al-Wajīz; see Ibn Ḥajar, Talkhīṣ al-ḥabīr fī takhrīj aḥādīth al-Rāfiʿī al-kabīr, ed. ʿĀdil ʿ Abd al-Mawjūd and ʿ Alī Muʿawwaḍ, 4 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1998). Ibn Ḥajar’s own collection of legal ḥadīths, Bulūgh al-marām min adillat al-aḥkām, contains only 1235 ḥadīths in its legal chapters; Bulūgh al-marām: Attainment of the Objective according to Evidence of the Ordinances, 2nd edition (Riyadh: Darussalam, 2002). 114) It took even longer for ḥadīth scholars to accept his ḥadīths, very few of which are found in the great collections of the 3rd/9th century.


appears to be the first major post-Successor jurist to have had something to offer absolutely everyone: prophetic, Companion, and Successor reports for the “Companions of ḥadīth” and the “Com-panions of raʾy”; and a wide array of personal opinions that inspired a core of loyal supporters among the “Companions of raʾy” to found the law school bearing his name.115

Over the course of the 4th/10th century, many, if not most, of the “Companions of ḥadīth” assimilated to one of the crystallizing Sunni legal schools. Christopher Melchert has offered some compelling reasons as to why “purely traditionalist jurisprudence” failed to sustain itself, ranging from the ḥadīth scholars’ reluctance to “identify authori-tative teachers of jurisprudence,” to the impractical number of ḥadīths one had to memorize to qualify as a jurist of this per suasion.116 I agree with Melchert that the “Companions of ḥadīth” suffered from a “theoretical weakness,” but I do not think it was the irresistible elegance of Shāfiʿī’s logic that subdued them. The strict “Companions of ḥadīth,” such as Ibn Abī Shayba and, to a lesser degree Ibn Ḥanbal, were committed to the principles of juristic disagreement (ikhtilāf) and the essentially equal juridical authority of the Prophet, Companions and Successors. It was inconceivable for them to sub-scribe to the theoretical construct of a post-Successor “absolute mujtahid” that Wael Hallaq has shown was a crucial feature of the surviving doctrinal schools.117 In contrast to this first party, the more adventuresome “Companions of ḥadīth,” like al-Tirmidhī or al-Ṭabarī, were committed to the principle of juristic disagreement yet also recognized the legal authority of the same post-Successor jurists as those whom the “Companions of raʾy” admired. It was perhaps inevitable for members of this latter group of ḥadīth scholars to favor one of the famous post-Successor jurists over another, and

115) It is a touch ironic that the Mālikī school, founded by a few distinguished “Companions of raʾy” in Egypt and Qayrawān, later cultivated one of the greatest ḥadīth scholars in Islamic history, Ibn ʿ Abd al-Barr, who, as we have seen above, played a vital role in preserving the very same Muṣannaf of Ibn Abī Shayba that the strictest “Companions of ḥadīth” had failed to safeguard. 116) Melchert, Formation, 22-7.117) Hallaq, Origins and Evolution, 157-64; also, idem, Authority, Continuity, Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 24-56.


many of the more prolific ḥadīth scholars developed a staunch loyalty to al-Shāfiʿī’s personality and jurisprudence.118 Ibn Abī Ḥatim, Ibn Khuzayma, Abū al-ʿAbbās al-Aṣamm, Ibn ʿAdī, al-Dāraquṭnī, and al-Ḥākim al-Naysābūrī, among others, all contributed in their own ways to magnifying al-Shāfiʿī’s reputation among “Companions of ḥadīth” over what Jonathan Brown has dubbed “the long 4th/10th-century.”119 Further examina tion of the largely unexplored corpus of 4th/10th century ḥadīth collections should yield valuable insights into how and why so many gifted members of the “Companions of ḥadīth” joined the Shāfiʿī madhhab and why both Ibn Abī Shayba’s methodology and Muṣannaf failed to capture their imagination.

118) Ahmed El Shamsy has recently argued that al-Buwayṭī’s Mukhtaṣar played a significant role in this process; see “The First Shāfiʿī: The Traditionalist Legal Thought of Abū Yaʿqūb al-Buwayṭī (d. 231/846),” Islamic Law and Society, 14, no. 3 (2007): 301-41.119) Jonathan Brown has demonstrated the close link between ḥadīth scholars involved in the canonization process of the Ṣaḥīḥayn and the emerging Shāfiʿī school from the late 3rd/9th century until the mid-5th/11th century in Nishapur, Jurjān, Baghdad, Central Asia, and Isfahan; see chapter 4 of his monograph, The Canonization of al-Bukhārī and Muslim (Leiden: Brill, 2007).

17. lucas - legal hadith

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