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The Second Stage
Establishment
INTRODUCTION TO FIQH History of Islamic Law
Major Stages Of The Development Of Fiqh
FOUNDATION
The era of the Prophet s.a.w. (609-632CE)
ESTABLISHMENT
The era of the Khulafa’ al-Rashidin, from the death of the Prophet s.a.w. to the middle of the seventh century (632-661CE)’
BUILDING
The founding of the Umayyad dynasty (661CE) until its decline in the middle of the 8th century CE
FLOWERING
The rise of the ‘Abbasid dynasty in the middle of the 8th century CE to the beginning of its decline around the middle of the 10th century CE
CONSOLIDATION
From the decline of the ‘Abbasid dynasty at about 960CE to the invasion of Baghdad by the Mongols in the middle of the 13th century CE
STAGNATION AND DECLINE
The sacking of Baghdad in 1258 CE to the present time.
MAJOR STAGES OF THE DEVELOPMENT OF FIQH
Establishment Building Flowering Consolidation Stagnation & Decline
The Era of the
Umayyad Dynasty
Practices
introduced by the
Umayyad
Ijtihad
11AH – 40AH 41AH -132AH
The era of the
Righteous Caliphs
Problem-solving
procedures
Ijtihad of the
Companions
Difference of Views
among the Companions
The Abbasid Era
Golden period
of Fiqh
Positive
developments
The Abbasid Era II
Taqlid
Reasons for Taqlid
Contributions of
scholars
The Ottoman Era
Characteristics
Fiqh
literatature
Present state
of Islamic Law
132AH – 350AH 350AH – 656AH 656AH – Present
Characteristics
Realistic Fiqh Issues
Procedures in deducing
hukm
Personal Opinion
Non existence of
Mazhab
Characteristics
Increase in Issues
Spreading and
Fabrication of Hadith
Emergence of schools
of Fiqh
Factors Effecting the
Development of Fiqh
Gov support
Competence Mujtahid
Expansion of the empire
Compilation of Sunnah
Compilation of Fiqh
Emergence of schools of
Fiqh
Characteristics
Prevailing trend of
taqlid
The codification of
Islamic Law
Western colonization
and Islamic Law
STAGE 3 STAGE 4 STAGE 5 STAGE 6 STAGE 2
The beginning of
Prophet hood –
11AH
STAGE 1
Foundation
The era of Prophet
Muhammad p.b.u.h
Legislation in
Makkah
Legislation in
Madinah
Focus of Legislation
Characteristics of
Legislation
Sources of Islamic
Law
Characteristics
Gradation in Legislation
Removal of Difficulty
Abrogation [al-Naskh]
Factors of Taqlid
The collapse of the
empire
The schools of Fiqh
False claim of Ijtihad
Following a single
mazhab
THE ERA OF THE KHULAFA AL-RASHIDUN [11H-40H]
Begins from the Caliphate of Abu Bakr [11H-13H] & ends with the death of Ali ibn Abi Talib [40H].
The expansion of the borders of islamic state has resulted the emergence of numerous new issues of Fiqh as the Muslims were in contact of new systems, cultures, customs and patterns of behavior.
In solving these new issues the Righteous Caliphs relied heavily on:
a. Decisions by consensus [al-Ijma’]
b. Personal reasoning [ijtihad]
PROBLEM-SOLVING PROCEDURES OF THE RIGHTEOUS CALIPH
They would first search for the ruling in the Qur‘an and rule
accordingly.
If they did not find the answer there, they would then search in the
Sunnah, the sayings and actions of Prophet s.a.w. and ask the other
companions whether the Prophet s.a.w. has rule on similar incidents.
They will rule accordingly upon finding any indications in the Sunnah.
If they still did not find the answer, they would then call a meeting of
the major Sahabah and try to get consensus of opinion among them to
solve the problem. (This consensus is referred to as ijma' al-
Sahabah.)
If unanimity could not be arrived at, they would then take the
position of the majority.
If, the differences were so great that there is no majority opinion, the
caliph would make his own ijtihad based on the different views that
was discussed among the companions.
Al-Qur’an
al-Sunnah [sayings, actions] + ask for previous rules by the Prophet p.b.u.h
Call for consensus between the companions
Majority’s opinion
Personal Ijtihad [al-qiyas, masalih al-mursalah, istihsan, etc]
But in specific situation, if they were asked question that needs immediate answer where the call for al-ijma’ is impossible or near impossible, the Caliphs used to exercise personal ijtihad.
If this happen, they strongly stressed out that this is their personal opinion and not the consensus.
Abu Bakar use to say the following sayings whenever he exercise individual ijtihad: “This is my opinion, if it is correct it is from Allah and if there is any mistake, it is from me and I ask forgiveness from Allah”.
‘Umar will inform whoever is writing his opinion to quote, “This is the opinion of ‘Umar” in order to differentiate between his personal opinion and the collective opinion and also to differentiate between his opinion given on individual capacity and on the capacity as the Caliph.
PROBLEM-SOLVING PROCEDURES [Cont’d]
IJTIHAD OF THE COMPANIONS
The companions were trained by the Prophet during his lifetime to exercise ijtihad in resolving the issues of Fiqh
During this period some of the fuqaha’ among the companions did actually exercised ijtihad.
It can be observed that, some companions are actively involved in giving their views in resolving the issues. Among them are:
a. ‘Umar ibn Khattab,
b. ‘Ali ibn Abi Talib and
c. ‘Abdullah ibn Mas‘ud.
Those who are less involve in giving their views including:
a. ‘Abdullah ibn ‘Umar,
b. ‘Abdullah ibn ‘Amr ibn al-‘As
c. Al-Zubayr.
IJTIHAD OF THE COMPANIONS [Cont’d]
Different in approach in understanding the text in
exercising ijtihad can be observed in this period:
a. Some of the companions will stick to the literal or
direct meaning of the Qur’an and Sunnah whereas,
b. Some other will try to find the reasons and rationale
of the injunctions in the text.
ATTITUDES OF COMPANIONS IN EXERCISING IJTIHAD
Total acceptance and enforcement of an authentic Hadith
When the companions exercised Ijtihad, if they gave their view on certain issues and were later informed of an authentic Hadith of the Prophet s.a.w. on the particular subject, they would immediately accept it
Click for Example
Respect the opinions of each other
The companions also used to respect the opinions of each other and would not force anyone to follow their opinion
EXAMPLES OF THE IJTIHAD OF THE COMPANIONS
1. Statement of divorce [talaq]
In order to discourage abuse of divorce, Caliph ‘Umar altered an
aspect of the law of divorce through his ijtihad
In the time of the Prophet s.a.w. the pronouncement of three
divorce statements at one time was considered to be merely one
divorce statement and it was reversible
Caliph ‘Umar declared such multiple pronouncements to be binding
and therefore irreversible.
[pronouncement of 3 divorce at one time will be considered as three
not one as previously ruled by Rasulullah s.a.w]
The tendency among the people to easily divorce their wives have
prompted the Caliph (Umar r.a. to take this decision. The ruling is
also imposed in order to discipline the society and to create
awareness among them on the seriousness of such matter.
EXAMPLES OF THE IJTIHAD OF THE COMPANIONS
2. Waging War against those who refuse Zakah
During the reign of Abu Bakar, some Muslims refuse to pay zakah, claiming that it shall only be paid to the Prophet s.a.w.
Abu Bakr decided to wage war upon them and said in his famous statement:
“ I will wage war against those who differentiate between the obligation of prayer and zakah as it is the obligation in ones property…”
اِل، واهلِل َلْو )َ
واهلل ألَُقاتَِلنَّ َمْن فّرق بني الصالِة والزكاة، فِإنَّ الزكاَة َحقُّ امل(َمنَ ُعْوِنْ عناقا َلَقاتَ ْلتُ ُهْم على َمْنِعِهمْ
DIFFERENCE OF VIEWS AMONG THE COMPANIONS
There are instances where the companions debated and differed their
opinions on various points of law in the process of resolving the issues
of Fiqh.
However, their differences are minor and rarely reached the level of
disunity and factionalism as can be observed in the later periods.
This was mainly due to:
a. The practice of shura in arriving to the consensus of opinion
followed by the righteous Caliphs.
b. Also the attitude of individual companions who are generally refuse
to make legal rulings but instead re-directing complicated questions to
other companions who were better qualified to answer them.
MAIN REASON FOR THE DIFFERENCES
Difference in their knowledge of the existence of a particular Hadith
of the Prophet s.a.w. in that particular issues of Fiqh.
Difference in their acceptance of Hadith.
Difference in the Interpretation and Understanding the Quranic
Text.
Different in the Method of Ijtihad on Issues Not Mentioned in the
Text.
EXAMPLE ONE
1. Marriage in Iddah
‘Umar ibn al-Khattab held the view that a women who
enters into marriage contract while she is still in her
waiting period [‘iddah] should be separated from the man
and it is forbidden for the man to re-marry her even when
her waiting period has come to an end.
However, ‘Ali ibn Abi Talib differ with him in this issue as
he does not see any reason to forbid the man from
marrying the women once the waiting period is over
2. Distribution of Confiscated Land
When Iraq was conquered by the Muslim army, the companions differ with regard to the distribution of the agriculture land confiscated from the enemy.
Bilal bin Rabah, ‘Abdul Rahman ibn ‘Auf, Yasir ibn ‘Ammar and some other is of the view that the land should be distributed according to the formula stated in the verse al-Anfal 41
“And know that out of all the booty that you may acquire (in war), a fifth share is assigned to Allah,- and to the Messenger, and to near relatives, orphans, the needy, and the wayfarer,…”
[Al-Anfal: 41]
However, ‘Umar, ‘Uthman, ‘Ali, Mu’az ibn Jabal and some others view that the land shall remain with the owners and they shall be requested to pay tax for it and the tax money shall be used for the interest of the Muslims.
EXAMPLE TWO
EXAMPLE I
After the Prophet s.a.w.’s death, the companions have
different views as to the place to bury him.
However, when Abu Bakr narrated to them that he had heard
Rasulullah s.a.w. saying that:
“Prophets are buried in the spot where they die”
They immediately accepted what he said and bury Rasulullah
s.a.w. in ‘Aishah's r.a. house.
CHARACTERISTIC
OF
2nd STAGE
REALISTIC ISSUES NON EXISTENCE
OF MAZHAB PERSONAL OPINION
PROCEDURS
OF RULINGS
Most of the Fiqh issues dealt with during this period are real issue that occur
in the society. The scholars do not deal with hypothetical or imaginary
issues.
This method (development of law with real issues) was later developed by
the scholars of al-Madinah, which resulted in the formation of the school of
Hadith [Madrasah ahl al-Hadith]
Note:
Hypothetical issues are issues which assumed to be happen but it hasn’t
occurred yet
The Righteous Caliphs) and some of the scholars among the companions
have developed certain procedures in deducing the rulings of Fiqh.
However, they did not prescribed that these procedures must be followed
by the Muslims in resolving the issues of Fiqh.
This open-minded attitude in areas which are not clearly defined by
Shari’ah reflects the companions respect for freedom of opinion in such
matters.
The using of personal opinion is one of the characteristics of Fiqh in this period
The majority of the companions preferred to stick closely to the literal meanings of texts of the Qur‘an
and the Sunnah. As a general practice, they avoided giving personal interpretations. Ibn ‘Umar, one of the
leading jurists among the companions who remained in Madinah all his life, followed this practice.
On the other hand, there were other companions, who favored the wide use of personal opinion in issues
not specified by either the Qur‘an or the Sunnah. However, they were careful to attribute any errors that
might result from their opinion entirely to themselves, so as not to bring discredit to Islamic law.
‘Abdullah ibn Mas’ud (who later settled in Iraq) represented this school of thought.
These two different approaches were later developed by the scholars and were evident in the
establishment of the School of al-Hadith (Madrasah al-Hadith) in al-Madinah and School of al-Ra’i
(Madrasah al-Ra’y) in al-Kufah.
There were no different mazhab (schools of jurisprudence) during the period of the Righteous
Caliphs. Even though there were individual ijtihad by the companions, it does not constitute a
mazhab as it were directly linked to the state as in was during the time of the Prophet s.a.w.
When problems occurs the decisions were made by the caliphs with shura among the companions
therefore it was the caliph himself who had the final saying in all legal decisions involving ijtihad
or ijma’.
Consequently, deduced rulings made by a caliph were never openly opposed by his successors
during his lifetime.
However, when the succeeding caliph came to power, his opinion would then be given precedence
over that of his predecessor and the deduced rulings of his predecessor would be changed to
conform to his opinion.
19
The Third Stage
Building
INTRODUCTION TO FIQH History of Islamic Law
MAJOR STAGES OF THE DEVELOPMENT OF FIQH
Establishment Building Flowering Consolidation Stagnation & Decline
The Era of the
Umayyad Dynasty
Practices
introduced by the
Umayyad
Ijtihad
11AH – 40AH 41AH -132AH
The era of the
Righteous Caliphs
Problem-solving
procedures
Ijtihad of the
Companions
Difference of Views
among the Companions
The Abbasid Era
Golden period
of Fiqh
Positive
developments
The Abbasid Era II
Taqlid
Reasons for Taqlid
Contributions of
scholars
The Ottoman Era
Characteristics
Fiqh
literatature
Present state
of Islamic Law
132AH – 350AH 350AH – 656AH 656AH – Present
Characteristics
Realistic Fiqh Issues
Procedures in deducing
hukm
Personal Opinion
Non existence of
Mazhab
Characteristics
Increase in Issues
Spreading and
Fabrication of Hadith
Emergence of schools
of Fiqh
Factors Effecting the
Development of Fiqh
Gov support
Competence Mujtahid
Expansion of the empire
Compilation of Sunnah
Compilation of Fiqh
Emergence of schools of
Fiqh
Characteristics
Prevailing trend of
taqlid
The codification of
Islamic Law
Western colonization
and Islamic Law
STAGE 3 STAGE 4 STAGE 5 STAGE 6 STAGE 2
The beginning of
Prophet hood –
11AH
STAGE 1
Foundation
The era of Prophet
Muhammad p.b.u.h
Legislation in
Makkah
Legislation in
Madinah
Focus of Legislation
Characteristics of
Legislation
Sources of Islamic
Law
Characteristics
Gradation in Legislation
Removal of Difficulty
Abrogation [al-Naskh]
Factors of Taqlid
The collapse of the
empire
The schools of Fiqh
False claim of Ijtihad
Following a single
mazhab
THE ERA OF THE UMAYYAD EMPIRE [41H-132H]
Begins with the rise of the Umayyad Dynasty [41H] and ends
with the fall of this dynasty [132H]
The Umayyads were in power for approximately one century
starting from the death of the last of the Righteous Caliph
‘Ali ibn Abi Talib in 41H and the dominance of the founder of
the Umayyad dynasty, Mu’awiyah ibn Abi Sufyan, until the
last of the Umayyad Caliphs in 132H.
PRACTICES INTRODUCED BY UMAYYAD CALIPHS
The central treasury, the Bait al-Mal, was turned into the
personal property of the Caliphs and their families by some
of the Caliphs.
Music, dancing-girls, magicians and astrologers were officially
introduced as forms of amusement in the court of the Caliph.
In addition, the office of Caliph was converted into that of
hereditary kingship
[al-khilafah or the office of Caliph becomes something inheritable and were passed from one Caliph to his son or descendant]
THE THIRD
STAGE
Hadith:
Spreading
Fabrication
Increase
Of
Issues
Emergence
School of
Fiqh
CHARACTERISTICS OF FIQH THE THIRD STAGE
INCREASE OF ISSUES RELATED TO FIQH AND IJTIHAD
The expansion of the Islamic Empire has resulted in the increase in
the issues related to Fiqh and Ijtihad
[diversity & differences in methodology in deducing the rulings of
Fiqh]
The differences between scholars in their ijtihad in this period can be
attributed to the following factors:
a. Dispersion or the spread of the scholars among the companions and
their successors [tabi’in] throughout the Islamic region.
b. Breakdown of the principle of ijma
c. The different scholars in the different parts of Islamic region follow
different methodology in resolving the issues of Fiqh.
a. Dispersion or the spread of the scholars among the
companions and their successors [tabi’in] throughout the
Islamic region.
Whenever on outstanding scholar of Fiqh arose in an area, the
students and scholars in that region would gather around him.
Often, even students and scholars from other regions would join
them and in that way a number of schools of Islamic law
(Mazhabs) evolved.
Naturally, not all of them are equal in their knowledge about
the interpretation of al-Qur’an and Sunnah and other sciences
of Islam. They will try to solve the arising issues according to
the available sources and this resulted to the difference of
opinion among them.
INCREASE OF ISSUES [THE SPREAD OF SCHOLARS]
b. The dispersion of the scholars resulted in a breakdown of the
principle of ijma’
With the scholars scattered throughout the state, such unanimity or
consensus became impossible to establish.
This led to a significant increase in the individual ijtihad of scholars
and differences in their views as they attempted to deal with the
multiplicity of new customs and problems in their own areas.
The emergence of different sect [al-Firaq] within the Islamic
community such as the Shi‘ah and Khawarij and others has also
contributed to the diversity of methods in deducing the rulings of
Fiqh.
INCREASE OF ISSUES [BREAKDOWN OF IJMA’]
c. The different scholars in the different parts of Islamic
region follow different methodology in resolving the issues
of Fiqh.
As a result, the people of different regions follow the method and
views developed by their scholars.
Click
INCREASE OF ISSUES [SCHOOLS OF FIQH]
SPREADING AND FABRICATION OF HADITH
The narrations of Sunnah spread rapidly during this period as the need
for information grew.
Since there is no systematic compilation of Sunnah, the scholars in
their various capacities has to go in search of individual narrations of
the Sunnah handed down by the Sahabah and their students, in order
to make their legal judgments.
SPREADING AND FABRICATION OF HADITH - POSITIVE IMPACT
Positive impact
The extensive reference to the Sunnah of the Prophet s.a.w. in
resolving the issues of Fiqh as this source became easily accessible
to the scholars with the increase and spreading of the narrations
of Sunnah
SPREADING AND FABRICATION OF HADITH - NEGATIVE IMPACT
a. Increasing tendency towards fabrication of Sunnah.
False sayings and actions began to be attributed to the Prophet
s.a.w. for the first time. For a fabricator to be trusted he would
have to relay some true Hadith along with his fabrications.
Therefore, a mixture of true and false reports worked their way into
the body of Islamic knowledge and was inadvertently used by some
scholars in making decisions.
Fanaticism towards certain sects is one of the reasons for the
fabrication of Sunnah.
Some would create Hadith about the virtues of certain good deeds in
order to encourage people to practice them and similarly some
Hadith is created about the punishment for certain evil deeds in
order to discourage people from indulging themselves in such
activities.
b. Hindering/delaying and extending the process in arriving to the
legal rulings.
The scholars have to investigate the authenticity of all the narrations of
Sunnah. In addition, some scholars who rejected certain true Hadith
because they knew them through the Hadith fabricators of their areas
made some inaccurate rulings.
However, this phenomenon prompted the scholars of Hadith to lay down
certain conditions for the acceptance of Hadith.
It also led to the compilation of Hadith and the development of the
science of Hadith criticism, which assisted later scholars in arriving at
accurate decisions in their Hadith (legal rulings).
SPREADING AND FABRICATION OF HADITH - NEGATIVE IMPACT [cont’d]
EMERGENCE OF THE SCHOOLS OF FIQH
The two different approaches in deducing the rulings of Fiqh:
a. The inclination towards limiting the deductions based on the available text
b. The inclination towards deducing the rulings based on personal reasoning and logic.
The scholars and followers of these approaches increased significantly and the two approaches were transformed into two separate entity each one having different foundation and reasons in deducing the rulings of Fiqh.
These two approaches were later well known as:
a. The School of Hadith [Madrasah ahl al-Hadith]
b. The School of Opinion [Madrasah ahl al-Ra’i]
THE SCHOOL OF HADITH [MADRASAH AHL AL-HADITH]
It was well known by this name for the fact that they relied extensively
on the text of Hadith in deducing the rulings of Fiqh.
The center for Madrasah ahl al-Hadith was in al-Madinah
Scholars of Islamic legal history indicated that Madrasah ahl al-Hadith
was a continuation of the approach of those companions of the Prophet
whose fear of contradicting the texts (nass) made them to take the
precaution of not going beyond what is available in the text.
This approach was attributed to ‘Abdullah ibn ‘Umar, ‘Abdullah ibn
‘Amr ibn al ‘Ass, al-Zubayr, and ‘Abdullah ibn ‘Abbas.
THE SCHOOL OF OPINION [MADRASAH AHL AL-RA’Y]
They were called with such name as they were known for their
extensive reliance on opinion and logic in deducing the rulings of Fiqh.
Kufah in Iraq was the base for Madrasah ahl al-ra’i.
Madrasah ahl al-Ra’i is said to be the extension of the school of ‘Umar
ibn al-Khattab and ‘Abdullah ibn Mas‘ud who were known in their use
of ra'y (opinion). In turn, ‘Alqamah al Nakha‘i , the uncle and teacher
of Ibrahim al Nakhai, was influenced by this approach of the
companions.
Ibrahim then trained Hammad ibn Abi Sulayman who was one of the
prominent teachers of Abu Hanifah.
Click
MAJOR DIFFERENCES BETWEEN THE TWO SCHOOL
The two schools are in agreement in the utilization of most
of the sources of Islamic law such as al-Qur’an, Sunnah,
ijma’ and qiyas, however, they differ in two main areas:
1. The exercising of personal opinion
2. Finding solution for hypothetical Fiqh issues.
THE EXERCISING OF PERSONAL OPINION
Scholars of Madrasah ahl al-Hadith leaned towards limiting their
deductions to available text of the Qur’an and Sunnah in deducing the
rulings of Fiqh.
They will avoid making personal legal rulings on an issue if there are no
clearly defined texts from the Qur’an or the Sunnah related to the
issue.
Some even refuse to issue legal verdict on existing issues for fear on
making mistake in their rulings. This is obvious in the case of a person
who came to Salim ibn ‘Abdullah ibn ‘Umar and asked him about an
issue.
THE EXERCISING OF PERSONAL OPINION [CONT’D]
As for the scholars of Madrasah ahl al-Ra’i, they favored the extensive
use of deductive reasoning and personal ijtihad in deducing the rulings of
Fiqh.
This is based on their believe that all of the various laws revealed by
Allah had identifiable reasons and objectives behind them, whether
these reasons and objective where identified by Allah and His Prophet
s.a.w. or not.
In cases where reasons for a law were not specifically defined, these
scholars used their powers of reasoning to arrive at possible reasons.
They will then apply such law to other circumstances, which had similar
causes (‘illah). Indeed, the scholars of this approach felt, it their duty
to uncover the objectives and the wisdom as well as the causes behind
the laws, and to make the connection between them; so that if the
reasons for any law were to lose relevance with the passing of time and
the changing of circumstances, the law would no longer be valid.
HYPOTHETICAL FIQH
The scholars of Madrasah ahl al-Hadith will always try to find the
solution for the current issues and resolved them based on the text
available. They will not try to act pro-actively by finding the solutions
for hypothetical matters, which has not happened and for the most
part, the Fiqh of this Madrasah (school) was practical and based on
real problems.
On the contrast, the Fiqh of Madrasah ahl al-Ra’y developed along
hypothetical lines. Problems were invented and variations of existing
situations guessed at, then imaginary solutions were worked out and
recorded. In their discussions they often used the phrase, "What if it
was like this?" and thus they were also nicknamed the (ara’itiyyin) or
the one who always say: “Whaf if?”
40
al-Madinah
- Abdullah ibn Umar
- Abdullah ibn Abbas
[Mujahid, Ata’ ibn Abi Rabah, Tawus ibn
Kisan]
al-Misr
- Abdullah ibn ‘Amr al-’As
[al-’Iz ibn Abd al-Salam]
al-Syam
- ‘Ubadah ibn al-Samit
- Muaz ibn Jabal
[Abi Idris al-Khaulani, Umar ibn Abd
al-Aziz, al-Auza’i]
al-Kufah
- Abdullah ibn Mas’ud
[AlQamah, al-Aswad ibn Yazid, Ibrahim al-
Nakh’ii]
Al-Basrah
- Abu Musa al-Ash’ari
[Muhammad ibn Sirin, Hasan al-Basri]]
41
Madrasah ahl al-Hadith
Abdullah ibn Umar + Abdullah ibn Abbas
[Mujahid, Ata’ ibn Abi Rabah, Tawus ibn Kisan]
Malik ibn Anas
[the founder of Mazhab al-Malikiyyah]
Al-Madinah
Madrasah ahl al-Ra’y
Umar ibn al-Khattab + Abdullah ibn Mas’ud
[Alqamah + Ibrahim al-Nakh’i + Hammad Abu Sulayman]
Abu Hanifah
[the founder of Mazhab al-Hanafiyyah]
Al-Kufah