Hz. Peygamber’den (sallallâhu aleyhi ve sellem) rivayet edilen bir hadiste, deve ya da koyunların olduğundan daha fazla sütlü gösterilerek satışa arz edilmesi yasaklanmış; böyle bir hayvanı satın alan kişinin muhayyer olduğunu hükme bağlamıştır. Söz konusu hadis “musarrâh hadisi” adıyla anılır. Musarrâh kelimesi, müşterinin rağbetini artırmak için bir süre sütü sağılmayan ve bu şekilde sütlü gösterilen hayvan anlamındadır. Mâlikî, Şâfiî ve Hanbelî fakihler bu hadisle amel ederek müşterinin “tedlis muhayyerliği”ne sahip olduğunu kabul etmektedirler. Tedlis, alışverişte satılık malın kusurunun müşteriden gizlenmesi demektir. Hanefî fakihlerin çoğu ise musarrâh hadisiyle amel etmemekte ve bunun gerekçesi olarak naklî ve aklî birçok izah yapmaktadırlar. Bazılarına göre mensuh olduğu için, bazılarına göre de âmir bir hadis olmadığı, anlaşmazlığa düşenlere tavsiye anlamı içerdiği için musarrâh hadisi delil alınmamıştır. Hanefîler’e göre musarrâh bir hayvan satın alındığında muhayyerlikten bahsedebilmek için satıcının müşteriyi aldatarak hayvanı yüksek fiyattan satması gerekmektedir. Bu çalışmada musarrâh hadisi ile ilgili meseleler, günümüzden yaklaşık iki asır önce yaşamış Muhammed b. Ali eş-Şevkânî’nin (v. 1250/1834) dört mezhep fakihlerinden yaptığı nakiller ve kendi görüşleri üzerinden incelenmeye çalışılacaktır. Mezhep taklidini reddederek ictihadın sürekliliğini savunan ve kendisini mutlak müctehid addeden Şevkânî, Neylü’l-evtâr isimli eserinde musarrâh hadisi ile ilgili mezhep görüşlerini, ihtilafları detaylı bir şekilde incelemiş, kendi tercihlerini belirtmiş, Hanefî fakihlerin musarrâh hadisiyle amel etmeme gerekçelerini eleştirmiştir. Bu çalışmayla Şevkânî’nin nakilleri, görüş ve tenkitleri incelenecek, isabet edip etmediği hususlar belirtilmeye uğraşılacaktır.
Muhammad Ibn Ali al-Shawkani lived in Yemen between the years of 1173 (1760 AH) and 1250 (1834 AH). Through his childhood he received education from both leading scholars and his father in the form of Zaidi method, which was dominant in his homeland. He had received commendation from his peers even before he finished his education. While continuing his own education, he had already become a teacher. In his twenties he started giving fatwa to the questions addressed to him, resulting him being a famous mufti. Alongside giving fatwa and teaching others he has authored a great number of books. Before he was thirty years old, he had left Zaidi school and claimed himself as a Mutlaq Mujtahid. Dedicating himself solely to scholarship, fatwa and authoring he became Head Qadi of Yemen. He stayed in this title until his death and played important roles in the affairs of state. Shawkani refused taqlid and supported the idea of continuous ijtihad. In almost every piece of work he has done, he accused members of schools of putting their school’s masters in front of Allah and his Prophet.
Aim of this study is analyzing Shawkani’s ideas in the light of musarrah hadith and the conclusions driven from them, which is an important part of muamalat. The main focus of this study is musarrah hadith. The word of musarrah comes from cattle which isn’t milked for a time in order to make them look like full of milk and therefore appealing to the customers. In hadith it is told the one who bought such a cow is allowed to back out from the trade deal because he’s deceived. Even though they dispute about the details of the hadith, all three schools, except Hanafi agree to act according to this hadith and they call these kind of permissions “right of rescind”.
Hanafi scholars reason for refusal comes from many viewpoints; some of which are about the owners of the quotation and some are about the actual text itself. According to such Hanafi scholars hadith may even be null. Shawkani in his “Nayl al-Awtar” explored these opinions of schools about musarrah hadith, inspected the controversies, expressed his own ideas and tries to respond to the Hanafi school’s objections.
One of the most important objections Shawkani emphasized upon is about Abu Hurairah, reciter of the musarrah hadith. Shawkani claims that Hanafi scholars believe that Abu Hurairah is not a fiqh scholar and his citation is against qiyas principles therefore unacceptable. Shawkani call this objection quite inaccurate. He indicates that Abu Hurairah had one of the strongest memories among the Companions and he cited a great deal of hadiths from the Prophet. To Shawkani, refusing Abu Hurairah means refusing half of the religion.
However, contradictory to the Shawkani, Hanafis believe that Abu Hurairah is indeed a fiqh scholar. If they would have refused the hadith because he’s not a fiqh scholar they should have concluded; for instance, laughing while praying doesn’t invalidate ablution or eating-drinking because you forgot you were fasting invalidates your fast. Even though there are hadiths which say these exact viewpoints, Hanafis chose to believe Abu Hurairah and act contrary. Furthermore, according to all of the schools except Hanafis, an Abu Hurairah hadith which is about pawning is considered unsatisfactory. And their reasoning behind it is quite similar to the previous example. In this study Shawkani’s numerous alike controversies including these instances are reviewed and evaluated.
Shawkani, in almost all these incidents within the area of this study, agrees with schools opposing Hanafis. It must be underlined that the Shawkani who always accuses scholars came before him of “blindfold taqlid” is indeed comes to same conclusions as with his.
Shawkani criticizes with a severity which almost shows that he’s not just against Hanafi school but to the school system altogether. His critiques push the boundaries of toleration. To emphasize, he claims that schools come to conclusions against hadiths with debate traditions and this means refusal of The Prophet Muhammad. He defines Hanafis as muqallids who leave genuine sunnah just to defend their school in a way that rejoices Satan. He accuses all scholars of playing word games and changing Allah’s judgement.
Shawkani who claims school views are decided with bigotry denounces these schools by just looking through an individual hadith from a shallow perspective. Yet anyone with a bit of fairness knows that in order to establish a school view, unlike his method, multiple “Nass” must be verified upon it, not just one. Multiple nass views should mesh together to form a unified focal point. Naming this process as bigotry must come from either ignorance or malicious intentions.