Abu Hanifah and Abu Yfisuf




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Abu Hanifah and Abu Yfisuf
Chapter XXXIV

ABU HANIFAH AND ABU YUSUF



A

ABU HANIFAH



Life.-It was under the circumstances explained at the close of the pre­ceding chapter that abu Hanifah appeared on the scene and began his work.

His original name was Nu'man bin Thabit. Born at Kffah, capital of Iraq, in 80/699 according to authentic reports, in the reign of 'Abd al-Malik bin Mar­wan, when Hajjaj bin YOisuf ruled over Iraq, he lived the first fifty-two years of his life in the Umayyad regime, the later eighteen in the 'Abbasid. He was fifteen years old when Hajjaj left the stage; in the time of 'Umar bin 'Abd al-'Aziz he was a youth. The stormy days of the rule of Yazid bin Muhallab, Khalid bin 'Abd Allah al-Qasri, and Nasr bin Sayyar, over Iraq, passed before his eyes. He himself was a victim of the persecution of ibn Hubairah, the last Umayyad governor. He saw the rise of the `Abbasid movement with its centre at Kiifah, his home town, which remained virtually the main strong­hold of the new-born 'Abbasid State before the founding of Baghdad. His death occurred in 150/767 during the reign of Mansur, the second `Abbasid Caliph.

Abu Hanifah's ancestors belonged to Kabul. His grandfather Zuta (according to some the pronunciation is Zauta) came to Kfifah as a prisoner of war, accepted Islam, and settled there under the friendly protection of Banu Taim Allah. Zuta was a trader by profession and was known to 'Ali, the "Right­going" Caliph; in fact, he was close enough to him and sometimes entertained him with gifts.' Abu Hanifah's father, Thabit, also owned some business at Kiifah. According to a report coming from abu Hanifah, he owned a bakery there.'

Abu Hanifah's own account of his education describes him as applying him­self first to recitation (reading the Qui an properly), Hadith (Tradition), grammar, poetry, literature, philosophy, and other subjects in vogue in those days.' Then he turned to specialize in dialectical theology, and mastered it to such a degree that people looked to him as an authority in that science. His pupil Zufar (bin al-Hudhail) reports that his master himself told him that at first he took such interest in theology that people lifted their fingers towards him 4 In another report abu Hanifah says that at one time he was a past

' Al-Kardari, Managib al-Imam al-A'zam, Dairatul-Maarif, Hyderabad, 1321/ 1903, Vol. I, pp. 65, 66.

s Al-Muwaffaq bin Ahmad al-Makki, Manaqib al-beam al-A'zam Abi Haul /a/m, Dairatul-Maarif, Hyderabad, 1321/1903, Vol. 1, p. 162.

3 Ibid., pp. 57-58.

' Ibid., pp. 55, 59.

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master in the art of controversy and spent most of his time in debates. As Basrah was the main venue of these contests, he had been there about twenty times, occasionally staying there for six months or so at a stretch, and re­maining engaged in controversies with the different sects of the Kharijites, the Iballiyyah, the Sufriyyah, and the Has_hwiyyah.e It may be easily con­cluded from this that he was well versed in philosophy, logic, and theological divergences of the numerous sects without which a man cannot enter the field of controversy at all. The beautiful use that he later made of reason and common sense in the interpretation of Law and the resolving of abstruse legal problems which won him immortal fame owed a great deal to the intellectual training which he had received earlier from these exercises of logical argumen­tation.

After keeping himself busy in polemical controversies for a long time and growing sick of them, he turned to Fiqh, i.e., Islamic Law. Here, with the bent of mind that he possessed, he could not interest himself in the Traditionist school (ahl al-hadith). He, therefore, joined the Iraqian school of reason with its centre at Kfifah. This school of law traced its origin to 'Ali and ibn Mas'ad (d. 32/652), after whom their disciples Shuraib (d. 78/697), 'Alqamah (d. 62/ 681), and Masruq (d. 63/682) became its accredited leaders, followed in their turn by Ibrahim Nakh'i (d. 95/714) and Hammad (d. 120/737). Abu Hanifah took Hammad for his master and kept him company for eighteen years till the latter's death. Frequently he also consulted the other learned masters of Law and Tradition in the Hijaz on the occasions of pilgrimage, and acquainted himself also with the Traditionist school of thought. On Hammad's death he was chosen to succeed him. He occupied that place for thirty years, delivering lectures and discourses, issuing legal verdicts, and doing the work which formed the foundation of the Hanafi school of law named after him. In these thirty years he answered some sixty thousand (according to other estimates, eighty-three thousand) legal queries, all of which were later compiled under different heads in his own life-time.6 Some seven to eight hundred of his pupils spread to different parts of the Islamic world and filled important seats of learning. They were entrusted with issuing legal opinions and guiding the education of the masses, and became objects of heartfelt veneration for the multitudes. About fifty of them were appointed judges after his death during the 'Abbasid reign. The law as codified by him was adopted as the law of the great part of the Muslim world. The 'Abbasids, the Saljfigs, the Ottomans, and the Mughuls espoused it, and millions of people follow it today.

Abu Hanifah, like his forefathers, earned his living by trade. He dealt in a kind of cloth, called k)tazz, in Kufah. Gradually, his business flourished till he had a factory where this cloth was manufactured? The business was not


  • Ibid., p. 59.

  • Ibid., p. 96; Vol. II, pp. 132, 136.

7 Al-Yafi'i, Mir'dt al-Jinuin wa 'Ibrat al-Yagzan, Dairatul-Maarif, Hyderabad, 1337/1918, Vol. 1, p. 310.

restricted to Kufah; his goods had a good market in far-off places. The growing recognition of his integrity converted his firm into a bank where people de­posited huge sums of money on trust. These deposits ran to fifty million dirhams at the time of his death.8 Extensive experience of financial and com­mercial matters gave him a deep insight into various aspects of law such as seldom falls to the lot of a theoretical lawyer. Later on, when he set himself to the task of codifying the Law of Islam this personal experience proved of immense help to him. A further testimony to his deep understanding and proficient handling of practical affairs is provided by the fact that when in 145/762 Mansnr undertook the task of constructing the new city of Baghdad, he appointed abu Hanifah to supervise the work, and for four years it re­mained under his supervision.'

In private life he was most pious, a man of known integrity. Once he sent out his partner in business to sell some merchandise. A part of the goods to be sold was defective. He instructed his partner to let the buyer know the defect. The partner, however, forgot to do so, and returned after selling the whole lot without apprising the buyer of the defect. Abu Hanifah did not keep that money. He gave away the whole of it (and it amounted to 35,000 dirhams) in charity.10

His chroniclers have recorded occasions when ignorant persons would come to his firm selling goods at lower rates than what they were worth. Abu Hanifah would tell them that their wares were worth more than what they put them at, and bought them at their actual rates." All his contemporaries speak highly of his honesty. The famous learned divine, 'Abd Allah bin Mubarak, said, "I have yet to see a more pious man than abu Hanifah. What will you say about the man to whom they offered the world and its wealth and he kicked it away, who was flogged and remained steadfast, and who never accepted those posts and honours which people hanker after."1s

Justice ibn Shubrumah said, "The world followed him but he would have none of it. As for us, the world would have none of us and we run after it."1° According to Hasan bin Ziyad, abu Hanifah never accepted a gift or favour

from the rich.14

He was also very generous, never sparing in spending, particularly on the learned and the scholarly. A part of his profits was earmarked for them and expended throughout the year; and whatever of it was left over was distributed among them. Extending them such help he would say: "Be pleased to spend
9 Al-Makki, op. cit., p. 220.

9 Al-Tabari, Vol. VI, p. 238; ibn Kathir, al-Bidayah w-al-Nihayah, Vol. X, p.97. 1° Al-Khatib, Vol. XIII, p. 358; Mulla 'Ali Qari, Dhail al-Jawahir al-Mudi'ah,

Dairatul-Maarif, Hyderabad, 1332/1913, p. 488.

" For an instance of this see al-Makki, op. cit., pp. 219-20.

19 Al-Dhahabi, Manaqib al-I7narn Abu Hane/ah wa Sahibaihi, Dar al-Kutub

al-'Arabi, Egypt, 1366/1946, p. 115. 19 Al-Rag_hib al-Asbahani, p. 206. 14 Al-Dhahabi, op. cit., p. 26.

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it on your needs, and thank none but God for it. I don't give you anything of mine. It is God's bounty; He has given it to me for your sake."15 A number of his pupils entirely depended on him, particularly abu Ydsuf. He met all the expenses of the latter's house since his parents were poor and wanted their son to give up studies and take to some work to earn a living.16

That was the man, who tackled in the first half of the second/eighth century the knotty problems arising from the awkward circumstances that followed the "Right-guided" Caliphate.

Abu Hannah's Pronouncements and Opinions.-First of all we shall take those problems about which his opinions as recorded by himself are available to us. He was no prolific writer. Therefore, in order to know his views we have generally to resort to other reliable sources. But on certain issues, mainly raised by the above-mentioned sects (the Shiites, the Kharijites, the Murji'ites, and the Mu'tazilites) he has written, against his wont, with his own pen, drawing up in brief but eloquent words the creed and doctrine of the ahl at­sunnah w-al-ja-ma'ah (lit., the followers of the Prophet and his Companions' tradition) who formed (as they still do) by far the largest section of the Muslim community. Naturally, in an estimate of his work the first place must be given to what flows from his own pen.

Al-Fiqh al-Akbar.-We have already stated in the preceding chapter how the differences that cropped up among the Muslims during 'Ali's reign and the first years of the Umayyad regime led to the birth of four big sects in the community, which not only expressed but also adopted as tenets of faith contradictory opinions or, certain vital issues affecting the constitution of Muslim society, the Islamic State, the sources of Islamic Law, and the decisions adopted by common consent in the earlier period. The creed of the majority in regard to these matters was clear; it was embodied in the practice of the common man and not infrequently in the spoken word or behaviour of the great divines and men of learning. But nobody had drawn it up in clear-cut words and put it into the form of a treatise. Abu Hanifah was the first person to put down perspicuously in his famous work, al-Figh al-Akbar," the Sunni point of view regarding matters of divergence against the doctrines of other sects.

Is Al-Khatib, Vol. XIII, p. 360; al-Makki, Vol. I, p. 262.

16 Ibn Kallikan, Vol. V, pp. 422-23; al-Makki, Vol. II, p. 212.



17 Before gaining currency as a term of the scholastics, the term Fiqh covered beliefs, general principles, law-in fact, everything under it. The differentiation was made by callingbeliefs and general principles Fiqh al-Akbar, the fundamental or the main Fiqh, and abu Hanifah gave that name to his compendium. Recently, some scholars have doubted the authenticity of some parts of this book; they believe them to have been included later. However, the authenticity of those parts which we discuss here is undoubted, as whatever other sources we tap to collect abu Hanifah's opinions on these matters, we find these tallying with them. For instance, abu Hanifah's al- Wasiyyah, al-Figh al-Absat reported by abu Muti' al-Balkhi, and 'Agidah Tahawiyyah in which Tahawi (c. 229-321/843-933) has described the

doctrines reported from abu I,Ianifah and his pupils, abu Yi7suf and Muhammad bin

Hasan al-fi aibani.

The first question relevant to our discussion answered by him in the book is regarding the position of the "Right-guided" Caliphs. The dissenting sects had posed the question about some of them whether they were rightly raised to the office of the Caliphate. Some wanted to know who were superior to whom, and whether there was any among them who could not be called a Muslim at all. These questions were not merely queries regarding some per­sonages of old history; in fact, they mooted another fundamental question, viz., whether the way these Caliphs were elected to their office was to be recognized as the constitutional way of electing the Head of the Islamic State or not. Moreoever, if the title of anyone of them proved doubtful, the question would be raised whether the decisions taken by "consensus of opinion" in his regime would form part of the Islamic Law or not; whether his own deci­sions would continue to form precedents in law or cease to operate as such. Besides that, the questions whether they were entitled to the Caliphate, whether they were endowed with faith at all, and whether some of them were superior to others, naturally gave rise to another question of a very vital import, and that was, whether the Muslims of later times could repose any trust in either the members or the collective decisions of the early Islamic community brought up under the direct care and supervision of the Prophet of God, the people through whom the teachings of the Qur'an, the Prophet's Tradition, and the Islamic Law came to be transmitted to later generations.

The second question related to the position of the Prophet's Companions. One of the sects, the Shi'ah, called the vast majority of these Companions sinners, gone astray, and even infidels, because they had selected the first three Caliphs to rule them; and a fair number was put outside the pale of faith or declared "transgressors" by the Kharijites and the Mu'tazilites for reasons of their own. This, too, was not a purely historical question, for it naturally led one to ask whether the laws and traditions transmitted by persons of doubtful bona fides to posterity would remain authentic sources of Islamic Law or not.

The third basic question dealt with in the book relates to "faith," its defini­tion and distinction from unbelief, and the consequences of sin-issues of grave controversy and debate in those days among the Kharijites, the Murji'ites, and the Mu'tazilites. This again was not merely a theological question but one that was closely related to the constitution of Muslim society and its answer affected the civic rights and social relations of Muslims. A question that closely followed from it was whether in a Muslim State governed by the sinful and the wrong-doer it was possible to perform correctly such religious duties as the Friday and other prayers, or political functions like dispensing justice or participating in war.

Abu Hanifah's answers to these questions embodying the Sunni creed are as follows:

1. "The best of men after the Prophet of God (on whom be peace) was abu Bakr. After him was 'Umar, after him 'Uthman, and after him 'Ali. They were

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all just men and abided by the right."18 'Aqidah Tahawiyyah further explains it like this: "We believe abu Bakr (with whom God be pleased) to be the best of men after the Prophet of God (on whom be everlasting peace). We recognize his title of the Caliphate as prior to that of others, then 'Umar's, then 'Uthman's, then 'Ali's-and they are the Right-guided Caliphs and the 'Right-going leaders."'L9

It is a matter of interest to note that personally abu Hanifah loved 'Ali more than 'Uthmgn,20 and believed that neither of them should be ranked above the other.21 Formulating the creed, however, he accepted whole­heartedly the decision of the majority of his day in choosing 'Uthman as Caliph after 'Umar, and agreed that in the ranking of the "Right-guided" Caliphs the order of their Caliphate was also the order of their superiority to one another.

2. "The Companions of the Prophet are not to be spoken of but respect­fully."22 'Agidah Taitawiyyah elucidates it further: "We treat all the Com­panions of the Prophet respectfully. We do not love anyone of them beyond measure, nor censure anyone of them. We do not like one who bears them malice or mentions them with disrespect. We mention them in none but a

good way ."23

Abu Hanifah did not hesitate to express his opinion on the mutual war of the Companions, and said unambiguously that in the war between 'Ali and his adversaries (and evidently the participants of the battles of the Camel and Siffin are included among them) 'Ali stood by right more than they,84 yet he altogether refrained from inflicting reproach on the other side.

3. "Faith is synonymous with owning and believing. To have faith is to own and believe (in God and His Prophet). "25 In al- Waslyyah it is explained in these words: "To have faith in something is to own it with the tongue and believe in it from the heart," and further: "Faith is not owning alone, nor believing alone." In another place we find: "Action is something different from faith, and faith different from action. Often a man is exempt from a certain action but he is not exempt from faith. For instance, it may be said



is Mulls 'Ali Qari, Shark al-Filth al-Akbar, Delhi, 1348/1929, pp. 74-87; al­Mag_hnisawi, Shark al-Filth al-Akbar, Dairatul-Maarif, Hyderabad, 1321/1903, pp. 25, 26.

19 Ibn abi al-'Izz al-Hanafi, Shark al-Taluiwiyyah, Dar al-Ma'arif, Egypt, 1373/ 1953, pp. 403-16.

so Al-Kardari, Vol. II, p. 72.

21 Ibn 'Abd al-Barr, al.Intiga', al-Maktabat al-Qudsi, Cairo, 1370/1950, p. 163; al-Sarakkh i, Shark al-Siyar al-Kabir, Vol. I, Shirkah Musahmah Misriyyah, Egypt, 1957. The same was Malik's and Yahya bin Said al-Qattan's opinion. Ibn 'Abd al-Barr, al-Isti'ab, Vol. II, p. 467.



sa Mulla 'Ali Qari, p. 87; al-Magh_nisawi, p. 26.

as Ibn abi al-'Izz, p. 398.

24 Al-Makki, Vol. II, pp. 83, 84; al-Kardari, Vol. II, pp. 71, 72. This too was not the opinion of abu Hanifah alone. All the ahl al-sunnah had agreed upon this. Ibn Hajar, al-Isabah, Matba'ah Mustafa Muhammad, Egypt, 1939, Vol. II, p. 502.

2s Mulls 'Ali Qari, p. 103; al-Mag_hnisawi, p. 33.

that a poor man is exempt from the payment of zakat (prescribed charity), but it cannot be said that he is exempt from bearing faith also."29 Thus abu Hanifah refuted the Kharijite theory that action formed part of faith and

hence sin was synonymous with disbelief, or, in other words, that a crime necessarily meant treason.

4. "We do not excommunicate a Muslim for any sin, however grave it may be, unless he affirms that it is 'allowed.' We do not divest him of belief. We call him a believer. A believer may be a transgressor, without being an infidel."E7

In al- Wasiyyah he writes: "The sinners among the followers of Mubammad (on whom be peace) are all believers, not infidels. 1128 'Agidah Tahawiyyah elucidates it further: "A man does not go out of the pale of faith except by denying the creed that had put him inside it."E9 A discussion of the Kharijites with abu Hanifah over this issue throws further light on this doctrine and its social consequences. A large party of them once came to him and said, "There are two biers at the gate of the Mosque. One is of a drunkard who died drink­ing, the other of a woman who got illicitly pregnant and took her own life in shame."

"To which community did they belong? Jews, were they?" he asked. "No," they said.

"Christians, then, or Majusis?"

"No," they answered again.

"Then, to which community did they belong?" asked he.

"To the community which bears witness to the creed of Islam," they replied.

"Is that one-third of the faith, or one-fourth, or what?" asked he. They said, "There is no one-third or one-fourth of faith."

"After all, what part of faith is this bearing witness to the creed of Islam ?" said he.

"The whole faith," said they.

"When you yourself call them faithful, what is it you want of me?" asked he. "We ask whether they would go to heaven or hell."

He replied, "If you ask me that, 1 will say about them what the Prophet of God, Abraham, said about sinners worse than they, '0 God, he who follows me is mine, and he who disobeys-Thou art the Forgiving, the Compassionate'; or what the Prophet of God, Jesus, said about sinners worse than they, 'If You punish them they are Your creatures, and if You forgive them, Thou art All-Powerful and Wise'; or what the Prophet of God, Noah, said, 'Their

reckoning rests with God, would that you understood; and I do not wish to turn my back upon the believers.'"so

Y8 Mulla Ijusain, al-Jauharat al-Muni/at fi Shark Wastyyat al-Imam Abu Hani/ah,

Dairatul-Maarif, Hyderabad, 1321/1903, pp. 3, 6, 7.

17 Mulla 'Ali Qari, pp. 86-89; al-Magh_nisawi, pp. 27-28. 28 Mulls Husain, p. 6.

2s Ibn abi al-'Izz, p. 265.



as Al-Qur'an, xiv, 27; v, 118; xxvi, 113-14.

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Hearing this the Kharijites felt outwitted and avowed their mistake.31

5. "Prayers can be offered behind any of the faithful, good or bad." 32 'Aqidah Tahawiyyah elucidates it further like this: "The pilgrimage and jihad (war) will continue to be performed to the Day of Judgment under the rulers of the faithful, whether they be good or bad. Nothing will make them unlawful or discontinue them."33

Al-Jassas has more clearly explained abu Hanifah's point of view in this matter. "Some people," writes he, "suppose that abu Hanifah approves the Imamate or Caliphate of the corrupt. If it has not been deliberately invented, the misunderstanding probably springs from this that abu Hanifah (and not be alone, all the learned scholars of Iraq whose opinions are widely known are one with him in this) says that if a judge is himself just, his decisions will be accepted, no matter how corrupt a master has appointed him; and prayer may be lawfully offered behind corrupt masters despite their corruption. This attitude is absolutely correct in its own place, but it does not mean that abu Hanifah finds no fault with the Caliphate of the corrupt." 34

These elucidations make it clear that abu Hanifah, unlike the Kharijites and Mu'tazilites, differentiated between Caliphs de jure and Caliphs de facto. A necessary corollary to the position taken by the above-mentioned sects was that in the absence of a just and pious ruler, i. e., a Caliph de jure, all functions of Muslim society and State would remain suspended. There would be no pilgrimage, and no Friday or other congregational prayer; the courts would stop, and there would be no other religious, social, or political work. Abu Hanifah, on the other hand, contended that if at a time the Muslims were deprived of a Caliph de jure, the functions of their society would continue to be exercised lawfully under a Caliph de facto, though his right to Caliphate may be disputable. In the pages to come we shall point out what, according to him, were the essential prerequisites of a lawful Caliphate and what he thought of corrupt and unjust Caliphs.

6. "We do not say that sin does not do a believer any harm. We neither say that a believer will never go to hell, nor that he will live eternally in hell if he is a transgressor." 31, "We also do not say, like the Murji'ites, that our good deeds will be certainly rewarded and our bad deeds undoubtedly for­given."3s



'Ag1dah Tabawiyyah has a further addition to it: "We decide in respect of no believer that he is destined to go to heaven or to hell. We do not accuse any Muslim of infidelity, polytheism, or hypocrisy, unless we see him actually

81 Al-Makki, Vol. I, pp. 124-25.

39 Mulla 'Ali Qari, p. 91; al-Mag-hnisawi, p. 28. 38 Ibn abi al-'Izz, p. 322.



84 Ahkdm al-Qur'an, Vol. I, pp. 80-81; al-Sarakhsi has also explained this in his

al-Mabsut, Matba'at al-Sa adah, Egypt, 1324/1906, p. 130.

3s Mulla 'Ali Qari, p. 92; al-Maghnisawi, pp. 28-29. 36 Mulla 'Ali Qari, p. 93; al-Mag_hn1sawi, p. 29.

engaged in them. As for intentions and motives we leave them to God to

judge."37

Thus abu Hanifah steered a middle course through the opinions held by the Murji'ites, the Kharijites, and the Mu'tazilites, and formulated a doc­trine of balance which, on the one hand, preserves the Muslim society from disintegration through mutual hatred and violence, and, on the other, insures against its falling into moral indiscipline and getting emboldened to commit sins with impunity.

Abu Hanifah on State and Caliphate.-The opinions mentioned above related to issues which had cropped up in consequence of the political turmoil of the day and vitally affected the legal system and the political and social orders of Muslim society. Now, let us examine abu Hanifah's views concerning the State and Caliphate. Since there is no work of his own touching these matters, we have to resort to the following two kinds of sources for information: first, his opinions quoted in the traditions and books of the Hanafi school; and, secondly, the attitude he adopted towards his contemporary governments of the Umay­yads and the 'Abbasids. The latter also includes a number of spoken words coming from his mouth during the course of his struggle with these govern­ments, and these throw further light on his points of view under discussion.

The Problem of Sovereignty and Legislation.-Abu Hanifah's views on sovereignty were identical with the generally known basic view of Islam oil this issue, namely, (1) that the true sovereign is God, (2) that the Prophet is to be obeyed as God's accredited vicegerent, and (3) that the Sbari'ah, i.e., the Law of God and His Prophet, is the supreme Law to which all must submit without demur or reservation. Abu Hanifah, pre-eminently a jurist, has stated this doctrine rather in terms of law than of politics. He says: "When I find an order in the Book of God, I take it from there. When I do not find it there I take it from the accredited practice, word, or tradition of the Prophet, coming down to us through reliable sources. When I do not find it either in the Book of God or in the Prophet's Sunnah, I follow the (agreed) opinion of the Prophet's Companions. In case of difference of opinion among them I adopt the opinion I like and reject the one I do not like; but I do not reject them all to follow an opinion from outside.... As for others, I have as much right to sift and draw conclusions as they have."38

Ibn Hazm states: "All his pupils are agreed that abu Hanifah's practice was that even a weak tradition was to be preferred to (one's own opinion

formed by) analogieal reasoning (giyas) or private judgment (rd'y)."39

This leaves absolutely no doubt that abu Hanifah regarded the Qur'an and the Sunnah as the final authority. Legal sovereignty, according to him, rested with God and the Prophet; and reason and judgment (giyas and ra'y) were



37 Ibn abi al-'Izz, pp. 312-13.

39 Al-Khatib, Vol. XIII, p. 368; al-Makki, Vol. I, p. 89; al-Dhahabi, p. 20. 39 Al-Dhahabi, p. 21.

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