Islamic Schools of Sacred Law
Islamic Schools of Sacred Law.
[This entry contains ten subentries on the Islamic schools of law. The first three subentries discuss three Shiʿi schools: Imami, Ismaʿili, and Zaydi. The last seven subentries discuss seven Sunni schools: the Hanafi, Hanbali, Khariji, Maliki, Shafiʿi, and Zahiri.]
Shiʿi Schools: The Imāmī School
The origins of the Imāmī school of law can be traced to Imam Muḥammad al-Bāqir (d. 743) and Jaʿfar al-ṣādiq (d. 765, the fifth and sixth Imams of Twelver Shiʿi Islam, respectively). A large body of legal doctrine is traced to the latter in particular, and hence the school is sometimes referred to as the Jaʿfarī madhhab. Jaʿfar was an accomplished jurist, who disputed with (and supposedly bested) Abū ḥanīfa (d. 765). From its beginnings in Medina, where these two scholars were based for much of their lives, the school spread to their followers in Iraq and Iran. Baghdad and Qumm became centers of Imāmī legal thought, particularly after the disappearance (ghayba) of the Twelfth Imam in 940. Under both the Umayyads and the early Abbasids, the imams were seen as political threats and were suppressed. Under the Shiʿi Buyid dynasty (945–1055), however, Imāmīs succeeded in gaining some political power, and the developing Imāmī school of law influenced some decisions in the Buyid courts. In positive law, the Imāmī school was based on the hadith reports from the imams, mainly those related from al-Bāqir and al-ṣādiq, but also some from ʿAli al-Riḍa (d. 818, the eighth Imam). The distinctive doctrines of the imams included, for example, a system of inheritance law in which the concept of ʿaṣaba (male relatives who inherit after the Qurʾanic heirs) was rejected and male and female relatives were given a greater measure of equality. The “marriage of pleasure” (mutʿa), which is contracted for a limited period, was considered licit by Imāmīs, though forbidden by the Sunnis. The absence of an imam also implied the illegitimacy of all current political power. Hence, the duty to pay religious taxes (zakat and khums) was thought by some early Imāmī jurists to be lapsed (sāqiṭ) since there was no legitimate power to collect and distribute them. The legal system that emerged was, however, similar to that of the rival Sunni schools in many respects.
Early Imāmī scholars collected legal hadiths, and were not concerned with constructing a practical legal system as such. Later jurists were more concerned with coherence, and hence developed a science of legal theory (uṣūl al-fiqh) which, similar to that of the Sunni jurists, attempted to present a comprehensive theory of law. In the early period, Imāmīs rejected ijtihād (personal juristic effort) and the uncertainty that it inevitably engendered in the jurist's mind. Al-ʿAllāma (d. 1325), however, argued for ijtihād, and adopted elements of Sunni jurisprudence. Subsequent Imāmī jurisprudence followed al-ʿAllāma's model, even through the Safavid and the Qajar periods in Iran, where it was partially instituted in the court system. The mujtahids faced opposition from the traditionalist Akhbārī school, but by the end of the nineteenth century, al-ʿAllāma's mujtahid theory dominated the Imāmī Shiʿi world.
Elements of Imāmī doctrine were included in Iranian legal codes in the twentieth century. This was the case primarily in the areas of personal law (marriage, divorce, and inheritance), as public law was under the control of the Pahlavi shahs. Although nominally Shiʿi, they pursued a modernizing agenda, abolishing the veil and suppressing the influence of Imāmī jurists. After the Iranian revolution of 1979, Imāmī jurisprudence gained a renewed influence in the Iranian legal system. Iranian judges were religiously trained jurists, who made judgments in both personal and public law on the basis of their traditional training. In southern Lebanon and in Pakistan, the Imāmī community has its own court system, primarily dealing with personal law. Even the secular Iraqi Baʿthist government attempted to include elements of Imāmī law in its personal codes. After the 2003 invasion of Iraq, the Iraqi Shiʿa proposed a system of courts staffed by traditionally trained jurists, and the future may well see the reemergence of traditional Imāmī jurisprudence in the Iraqi court system.
[See also ‘Amili, Muhammad b. Makki, al-; ‘Amili, Zayn al-Din b. ‘Ali b. Ahmad, al-; Ansari, Murtadd b. Muhammad Amin, al-; Baqir al-Najafi, Muhammad Hasan b. Muhammad; Bihbahani, Muhammad Baqir b. Muhammad Akmal, al-; Ibn al-Mutahhar, Hasan b. Yusuf al-Hilli, known as al-‘Allama; Hilli, Ja’far b. al-Hasan, al-; and Tusi, Muhammad b. al-Hasan, al-, Shaykh al-Ta’ifa.]
Gleave, Robert. Inevitable Doubt: Two Theories of Shīʿī Jurisprudence. Leiden: Brill, 2000. An examination of the conflict between traditionalism and rationalism within Imāmī Shiʿi jurisprudence.Find this resource:
Modarressi Tabatabai, Hossein. An Introduction to Shīʿī Law. London: Ithaca Press, 1984. A primarily bibliographical resource of works in Shiʿi law from the earliest period to the modern day, with useful introductory chapters.Find this resource:
Stewart, Devin J. Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System. Salt Lake City: University of Utah Press, 1996. A thorough resource for the history of Imāmī Shiʿi law, which concentrates on the influence of Sunni jurisprudence upon Shiʿi legal thought.Find this resource:
Shiʿi Schools: The Ismaʿili School of Law
Like the Imāmī Shiʿa, the Ismaʿilis accept Jaʿfar al-Ṣādiq (d. 765) as an imam—an infallible source of law. It is only after Jaʿfar's imamate that the Ismaʿilis differ from the Imāmīs concerning the identity of the imam, arguing that Jaʿfar's son Ismaʿil rather than Mūsā was the next Imam. Ismaʿili law, most evident in the works of the great Fatimid Egyptian jurist al-Qāḍi al-Nuʿmān (d. 974), resembles Imāmī law in some respects, being derived from Jaʿfar's teachings. However, Ismaʿili law is distinctive in the role it permits the imam of adjusting the dictates of the Shariʿa to the exigencies of the time. Hence the largest contemporary Ismaʿili group, the Nizārīs, follow a code of religious law (in terms of ritual and worship) which is very different from that of the Imāmīs and Sunnis.
After the collapse of the Fatimids (1171), the Ismaʿili movement fractured between rival claims to the imamate. The Nizārī (Agha Khani) Ismaʿilis had split earlier from the Fatimids and survived in small communities in Iran and Syria, and later in India. Most of the remnants of Fatimid Ismaʿilism were located first in Yemen and then in India. The prominence given to the imam, or for some sects the imam's representative (dāʿī muṭlaq “the supreme propagator”), meant that legal scholarship was of secondary importance. Since the imam was the source of law, he had the power to abrogate or change it. Legal interpretation, and hence jurists, were, to a certain extent, superfluous. For this reason the study of the Shari’a has not been a major element of Ismaʿili scholarship since the time al-Nu’man. Today, Ismaʿili communities have both codes of ethics and recommended ritual and community practice. These have the imprimatur of their various imams or dāʿī muṭlaqs. However, there is no mature science of legal exegesis: a living, omniscient guide renders interpretation unnecessary.
Daftary, Farhad, ed. Medieval Ismaʿili History and Thought. New York: Cambridge University Press, 1996. An edited collection of essays tracing the important elements of Ismaʿili thought, including jurisprudence in the medieval period.Find this resource:
Madelung, Wilferd. “The Sources of Ismaʿili Law.” Journal of Near Eastern Studies 35 (1976): 29–40.Find this resource:
Shiʿi Schools: The Zaydi School of Law
The Zaydis are a sect of Shiʿi Islam who take their name from Zayd ibn ʿAli (d. 740), a great-great-grandson of the Prophet Muhammad. Zayd led an abortive revolt in Kufa against Umayyad rule in 740 c.e. and died a martyr. His political example, as a rebel against unjust rule, has remained a cornerstone of Zaydi self-definition. On questions of law, the most significant repository of his learning is the work known as the Majmuʿ of Zayd ibn ʿAli. It has been claimed by Zaydis, and some Western scholars, to be the earliest work of Islamic law. Zayd's authorship, however, is a disputed matter. Wilferd Madelung, for example, has argued that it represents the Kufan legal tradition and that Zayd is unlikely to have had a significant part in it.
Throughout the ages, very few Zaydis have claimed to be followers of Zayd on questions of law. Rather, the Zaydi tradition has spawned several legal schools, each of them tracing its origin to an individual imam in the tradition. Of these imams, those with the most significant historical following were the Medinan Hasanid al-Qasim ibn Ibrahim (d. 860); his grandson al-Hadi Yahya ibn al-Husayn, the founder of the Zaydi state in Yemen; and the Caspian imam al-Nasir al-Hasan ibn ʿAli al-Utrush. Zayd's unimportance as a legal eponym has generated much controversy within Zaydi circles, as well as polemics with non-Zaydis, about what specifically defines Zaydism. The classical response of the Zaydis has been to state that Zaydism is defined by a commitment to a set of theological and political beliefs, and they have downplayed the importance of law. Furthermore, they have justified the diversity in legal opinions that characterizes their schools by stating that their imams, as mujtahids (independent jurists), are all correct in their views. This is known as the doctrine of infallibilism (taṣwīb), and it has played a major role in resolving tensions arising from the differences of opinion within the sect.
The Zaydis have survived into modern times in the northern highlands of Yemen, where the legal school of al-Hadi Yahya, the founder of the first Zaydi state in Arabia, has dominated under the name of al-Hadawiyya. Al-Hadi's most important legal text is the Kitab al-ahkam, but his views were set in canonical fashion by Ahmad ibn Yahya al-Murtada (d. 1436) in Kitab al-azhar. The latter remains the standard work of reference for Zaydi law in Yemen.
A legal tradition emerged around al-Hadi's teachings, and it is common to recognize three ranks of legal activity. The first consists of the explicit statements of the eponymic imams (aṣḥāb al-nuṣūṣ), for example al-Hadi for the Hadawi madhhab. The second rank, the so-called muḥaṣṣilūn, is occupied by those who sifted and clarified these statements and articulated the principles upon which the imam's decisions rested, a process that is sometimes referred to as takhrīj. The third rank is that of the mudhākirūn who apply these principles to new cases. To the extent that the Zaydi madhhab in Yemen was identical to the elaboration of the teachings of al-Hadi by many generations of scholars, it had come to acquire an impersonal character. This in turn challenged its followers to provide a satisfactory theoretical explanation of how adherence to the madhhab constituted actual “emulation” (taqlīd) of the eponym.
In the fifteenth century, at the time that Kitab al-azhar was written, the Zaydi school came under attack from internal critics who rejected the fundamental principles of the existing legal schools, including their own. The first scholar in this anti-madhhab tradition was Muhammad ibn Ibrahim al-Wazir, and perhaps the most famous in this lineage is Muhammad ibn ʿAli al-Shawkani (d. 1834). Given that the theory of taqlīd would require reliance on a mujtahid, one of the most troubling questions that emerged from the attack on the madhhabs is where in the complex scholastic tradition that emerged around al-Hadi's doctrine could his followers find the requisite authority on which to base their taqlīd. The solution the opponents of the madhhabs proffered was a total rejection of taqlīd, and with it the whole madhhab structure, to be replaced by a reliance on the perpetual practice of ijtihād (independent judgment). By this they intend a constant citation by qualified scholars of revelatory texts, especially the canonical Sunni hadith collections, when elaborating legal opinions. The legal methodology of these madhhab opponents is the strict constructionism of the Sunni Traditionists (ahl al-ḥadīth), which in contemporary times is associated with the Salafis and Wahhabis.
In the eighteenth century the Zaydi state dominated most of Yemen and was headed by the imams of the House of Qasim. These sought to establish dynastic and patrimonial forms of rule, which clashed directly with the traditional Zaydi political doctrine that only persons fulfilling strict qualifications could become imams. A convergence of interests arose between the Qasimis and the anti-madhhab jurists, and this was concretized when Shawkani assumed the post of Chief Judge from 1795 until 1834. In return for state patronage, Shawkani developed a Sunni-oriented legal and ideological framework that legitimized Qasimi rule. In this period the majority of the state's subjects were Shafiʿi Muslims, and these found favor under, and would identify with, Shawkani's Sunni teachings.
In the twentieth century, the Zaydi state was reconstituted under the Hamid al-Din imams (r. 1918–1962) after the defeat of the Ottomans in World War I. These imams perpetuated the forms of rule established by the Qasimis while maintaining the Hadawi madhhab as the official school of law. A process of legal codification, influenced by Ottoman reforms as well as traditional imamic “choices” (ikhtiyārāt), was initiated by the Hamid al-Din imams, but it remained unaccomplished in 1962 when the dynasty was overthrown by republican revolutionaries. The modern Republic of Yemen has codified its laws, basing them primarily on Egyptian codes and processes. Officially, Zaydism is one of the recognized schools of law in Yemen, but the state has decided de facto to abandon its doctrines and rulings, which are applied ever more infrequently by an aging generation of judges who were trained in its legal manuals.
Haykel, Bernard. Revival and Reform in Islam: The Legacy of Muhammad al-Shawkani. Cambridge, U.K.: Cambridge University Press, 2003.Find this resource:
Madelung, Wilferd. Der Imam al-Qasim ibn Ibrahim und die Glaubenslehre der Zaiditen. Berlin: Walter De Gruyter, 1965.Find this resource:
Messick, Brinkley. The Calligraphic State: Textual Domination and History in a Muslim Society. Berkeley: University of California Press, 1993.Find this resource:
Würth, Anna. Aš-Šariʿa fi Bab al-Yaman: Recht, Richter, und Rechtspraxis an der familienrechtlichen Kammer des Gerichts Süd-Sanaa, (Republik Jemen) 1983–1995. Berlin: Duncker & Humblot, 2000.Find this resource:
Sunni Schools: The Hanafi School of Law
The first and largest of the four living Sunni schools of fiqh, each of which is a liturgical, ethical, and juristic system, originated in the eighth century in Kufa, Iraq, and was named after the leading jurisconsult Abu Hanifa (d. 767), who succeeded his master, Hammad ibn Abi Sulayman (d. 738), in a circle in the mosque of Kufa after the latter's death.
The school arose as a distinct juristic movement incorporating the legal traditions of the ancient schools of Kufa and Basra known as the Proponents of Opinion, ahl al-raʾy, vis-à-vis the Traditionists, ahl al-ḥadīth, who relied exclusively on hadith (sometimes called “traditions”) from the Prophet. It is distinguished from the other schools through more emphasis on rational methodology. When formulating his legal doctrine, Abu Hanifa collaborated with his disciples, laying the foundation of the methods and principles of the school, inquiring into contemporary doctrines, and discussing legal issues. Among his most outstanding disciples were Abu Yusuf, Muhammad al-Shaybani, Zufar ibn al-Hudhail, and Hasan ibn Ziyad al-Luʾlui.
The school's doctrine was documented mainly by the first two disciples, whose works continue to represent sources of supreme authority in legal matters among the Hanafis. These include al-Shaybani's works Al-mabsut [Al-asl], Al-jamiʿ al-kabir, Al-jamiʿ al-saghir, Al-siyar al-kabir, Al-siyar al-saghir, Al-ziyadat, and Muwattaʾ Shaybani, and Abu Yusuf's Kitab al-kharaj and Kitab al-athar. They also defended the school's doctrine against critics by means of hadith and concepts of legal theory, which formed its foundation. For instance, Abu Yusuf responded to the famous jurist al-Awzai, who wrote a refutation of Abu Hanifa's doctrine on international law, and al-Shaybani defended the school doctrine against the Traditionists in a book titled Al-hujja ʿala Ahl al-Madina. However, the jurists associated with these masters collected their unpublished materials (nawādir) and transmitted their works to succeeding generations. The scholars of the following centuries (mashāyikh, pl. of shaykh) focused on studying the masters’ legacy by unfolding concepts of legal theory, deducing the general principles and policies implicit in this legacy, refining the definitions of legal concepts, and applying the founders’ opinions to novel problems. All these efforts contributed to the formation of the Hanafi School as a legal, social, and religious institution.
The Spread of Hanafi Networks.
Starting from the eponym's own lifetime, the Hanafi school spread over vast areas of the Islamic world, especially toward the eastern provinces of the Abbasid caliphate, Khurasan and Transoxania, and was later favored by the sultans of the region. Balkh became the first major center of eastern Hanafi scholarship; then Samarqand emerged as the seat of the school during the early Samanid dynasty, with Bukhara as a major rival. Although a powerful Hanafi movement emerged in the eastern provinces, and its influence continues to the present time, the seat of leadership and prestige of the school as a whole remained for centuries undisputed in Baghdad.
Consequently, by the beginning of the tenth century, in the various centers of the Islamic world, several distinct academic networks of jurists were instituted around the leadership of certain Hanafi jurists. They adapted doctrines of the school to the circumstances of their territories by focusing on its legacy, wrote commentaries on the works of the masters, and produced legal manuals. Among the most prominent Hanafi legal works: in Egypt, al-Tahawi's Al-mukhtasar; in Iraq, al-Karkhi's Al-mukhtasar, al-Quduri's Al-mukhtasar, al-Mawsili's Al-mukhtar; in Transoxania, al-Hakim al-Shahid's Al-kafi and Al-muntaqa, al-Sarakhsi's Al-mabsut (a commentary on the above-mentioned Al-kafi), al-Kasani's Badaʾiʿ al-sanaʾiʿ, al-Marghinani's Al-hidaya, al-Nasafi's Kanz al-daqaiq, and Burhan al-Sharia Burhan al-Din Mahmud's Wiqaya al-riwaya; and in Ottoman Anatolia, Molla Khusraw's Durar al-hukkam and Ibrahim al-Halabi's Multaqa al-abhur. Ibn ʿAbidin (d. 1836), a Syrian jurist, wrote the last authoritative Hanafi legal compendium, titled Radd al-muhtar, a supercommentary on his fellow citizen al-Haskafi's Al-durr al-mukhtar. With respect to legal theory and methodology, the books of Abu Bakr al-Razi al-Jassas of Iraq (Al-fusul fi al-usul), Abu Zaid al-Dabusi (Taqwim al-adilla), Fakhr al-Islam al-Pazdawi (Kanz al-wusul ila maʿrifat al-usul), al-Sarakhsi (Usul al-fiqh), and Ala al-Din al-Samarqandi of Transoxania (Mizan al-usul) are the most celebrated works.
Hanafism in the East.
In the eastern provinces of the caliphate, until the Mongol invasions, the Hanafi scholars strengthened their links with urban politics and filled key positions in urban offices, occupying legal, religious, and political positions as preachers, professors, judges, viziers, advisors, and envoys. The great families of scholars in cities and towns such as Bukhara, Samarqand, Isfahan, and Nishapur also competed with each other to wield political power as the hereditary chiefs (raʾīs) of the Hanafis. The Hanafis of the region were also in a fierce competition with the adherents of the Shafiʿi school. The scholars of both sides held debates about legal doctrine in the presence of sultans and great functionaries and wrote refutations to each other, producing a vast amount of polemical literature. The texts of this literature of the eleventh and twelfth centuries from Iran and Central Asia are remarkable for their argumentative structure and the extent to which they present the legal opinions of the rival school.
The Transoxanian Hanafis of Sunni persuasion demonstrated distinct characteristics in their own interpretation of Hanafi doctrine. But most Iraqi Hanafi scholars of the ninth century were in favor of the Muʿtazili theological doctrine, and many had an active role in the campaign against Sunni scholars. In the wake of this campaign, however, other Sunni legal schools gained power at the expense of the Hanafi school, and in line with this development, Muʿtazili and Muʿtazili-inclined scholars were eliminated from public service, in the early eleventh century even being required to repent their Muʿtazilism before the caliph. Thus the Hanafi school began to decline in its homeland, and its center of gravity shifted eastward.
The Transoxanian Hanafis tried to show that Hanafism is a Sunni legal school. In order to support this argument, they presented Abu Mansur al-Maturidi (d. 944) as the eponym of a Sunni theological school, Maturidism, over a century after his death. The Seljuq Turks, who identified Sunnism with the Transoxanian Hanafi school and revered the scholars representing it, brought them into their company during their westward expansion to the Fertile Crescent and endeavored to increase their prestige in public life and raise the authority of the Hanafi school above that of other schools, installing Hanafi scholars in prominent positions in Nishapur, Ray, Isfahan, and Damascus that had previously been held by Shafiʿis.
The Seljuqs realized the significance of founding madrasas to spread doctrine. Thus, wherever new Hanafi madrasas were founded, the professorial chairs were offered to eastern Hanafis. The policy of giving preference to eastern Hanafi scholars during the early Seljuq period and the Mongol invasions of Central Asia later in the thirteenth century encouraged a steady stream of emigration from Central Asia to the west. The works of Central Asian scholars began to predominate in Hanafi circles by the twelfth century in the Middle East and Anatolia. However, in the second half of the eleventh century (from 1067 on), when Nizam al-Mulk founded the system of Nizamiyya madrasas and sponsored the Shafiʿi school of law and the Ashʿari form of theology, the Hanafi school lost its privileges except in Central Asia (Turkestan, Transoxania) and some parts of Anatolia.
Madrasas and the Judiciary.
Legal learning has always been the most prestigious area of education throughout Islamic history. Before the advent of colleges it was often carried out in groups in mosques. By the end of the ninth century, several colleges (madrasas), which functioned primarily as schools of law, were founded in cities devoted to the Hanafi school, such as Samarqand (the Dar al-Juzjaniyya) and Nishapur (the madrasa of Abu al-ʿAla Saʿid, founded by Nasr ibn Sabuktekin, the brother of Mahmud of Ghazna, in 1000). In the course of time, legal education in many madrasas was limited mainly to the Hanafi school, either alone or together with the three other Sunni schools. Law was also studied in the Sufi monasteries. In 1854, the Ottomans introduced a law school called Muallimhane-i nüvvab, later Medreset-ul kuzat, to train jurists.
Although the Abbasid caliphs did not enforce any doctrine on the judges, the Hanafi school played a significant role in the central administration of the judiciary in the first century of Abbasid rule and became the dominant legal machinery of the state. When the dignity of the chief judge was established by Harun al-Rashid as part of his centralization policy, Abu Yusuf, the most prominent disciple of Abu Hanifa, was appointed to this position, and influenced the caliph to appoint judges in the empire's central and eastern provinces from among his companions and those belonging to his school. In addition, the Hanafi doctrine espoused in manuals was tremendously convenient to law practitioners at a period in which wide divergences in jurisprudence emerged. Thus, a student of Hanafi legal texts could be appointed as a judge more easily than a man who attended the sessions of jurisconsults for many years, as the celebrated theologian Jahiz (d. 869) observes. In the following centuries, however, judges were also appointed from other schools even in Baghdad. The chief judge Abu al-Hasan al-Damaghani (d. 1119) tried to make Hanafi doctrine the official law of the state, and the caliph al-Nasir (1180–1225) limited the appointment of judges to the four Sunni schools.
Mamluks and Ottomans.
The Hanafi school gained official status during the period of the Mamluks in 1265, when the four-judge system was introduced and the judges representing each of the four Sunni schools held court simultaneously in the principal cities. Since the Shafiʿi judge was given precedence in the hierarchy over the others (Malikis, Hanafis, and Hanbalis), Hanafis in this era competed with the Malikis and gained power at the expense of their rivals in the later period. Since the political and administrative bodies of Mamluks were generally Hanafi and were intensely involved in religious activities in this age, this caused the Hanafi population to rise in the course of time by shifting from other schools of law. After their campaign in Egypt in 1517, the Ottomans abolished this system, and the judgment seats were occupied by Hanafis sent from Istanbul. But in Arab territories where the population followed other schools, Ottoman judges appointed vice-judges and legal experts (muftis) from other schools for implementation of their doctrines among people of their schools, and an imperial edict given by Sultan Sulayman the Magnificent prohibited judges from issuing verdicts contrary to the defendant's school doctrine; however, these practices were abolished by the Egyptian governor Mehmed Ali in 1805, and the Hanafi doctrine was imposed, just as in the central provinces.
With the rise of the Ottoman Empire, Hanafi doctrine enjoyed preferential status as the official law of the state, and the dominant Hanafi opinion on each point, with some exceptions, became authoritative in public life and the official administration of justice. Although in the classical period the Ottoman legal system was based on the Hanafi doctrine, customary law derived from imperial edicts also accompanied it. This system underwent no essential changes until Ottoman modernization in the mid-nineteenth century. During this period, a committee headed by Ahmed Cevdet Paşa codified the legal views of Hanafi doctrine pertaining to principles of law, qawāʿid, contract law, procedural law, and some parts of personal status law in the first European-style Islamic civil code, namely the Mecelle (1869–1876), and it became the civil code over all the Ottoman provinces, with the exception of the Arabian Peninsula and Egypt. However, the Ottoman Law of Family Rights of 1917 adopted some opinions from other living or extinct schools.
After the decline of the Ottoman Empire, the Mecelle was abolished in Turkey (1926) but survived in the former Ottoman countries, such as Iraq, Syria, Jordan, Lebanon, Israel, and Palestine, later losing its status as an independent code during the twentieth century. Only in the courts of Palestine do certain sections remain part of the law applied today. When a conscious effort to integrate Islamic law and modern positive law was made by Sanhuri and his generation at the middle of the twentieth century, and rules concerning civil law, especially personal status and family law, waqf law (as far as it is legally recognized), and law of inheritance and wills, were selected from the Islamic schools of law, Hanafi legal doctrine played an important role.
The Current Situation.
The Hanafi doctrine is still an important part of Islamic law. The contemporary legislation relating most notably to personal status in most Muslim countries in the Middle East, Pakistan, Afghanistan, Bangladesh, and India has been inspired by provisions drawn from Hanafi principles. The legal system of Pakistan has also accommdated itself to classical Hanafi Islamic law to a certain degree in the areas of criminal and commercial law since the mid-1980s. Hanafi doctrine is specified by the codes of some countries as a subsidiary source of law in the absence of any textual provision, and its influence can be traced in the legislation of many Arab states. The vast majority of Muslims in countries such as Turkey, the Balkans, the Turkic republics of Central Asia, Russia, and China observe and practice their religious requirements as expounded by the Hanafi school. There are also Hanafi minorities in Iran, Malaysia, Sri Lanka, Kenya, and Tanzania. In the Arab world, Africa south of the Sahara, Iran, Indonesia, and Malaysia, the majority of Muslims traditionally adhered to other schools of Muslim law.
Heffening, W., and Joseph Schacht. “Hanafiyya.” In The Encyclopaedia of Islam, 2d ed., Vol. 3, pp. 162–164. Leiden, Netherlands: Brill, 1960–2004.Find this resource:
Johansen, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Leiden, Netherlands: Brill, 1999.Find this resource:
Kaya, Eyyup Said. “Continuity and Change in Islamic Law: The Concept of Madhhab and the Dimensions of Legal Disagreement in Hanafi Scholarship of the Tenth Century.” In The Islamic School of Law: Evolution, Devolution, and Progress, edited by Peri Bearman, Rudolph Peters, and Frank E. Vogel, pp. 26–40. Cambridge, Mass.: Harvard University Press, 2006.Find this resource:
Krueger, Hilmar. “Zum zeitlich-räumlichen Geltungsbereich der osmanischen Mejelle.” In Liber amicorum Gerhard Kegel, edited by Hilmar Krüger and Heinz-Peter Mansel, pp. 43–63. Munich, Germany: Beck, 2002.Find this resource:
Madelung, Wilferd. “The Westward Migration of Hanafi Scholars from Central Asia in the 11th to 13th Centuries.” In I.mam Mâturîdî ve Maturidilik, edited by Sönmez Kutlu, pp. 433–446. Ankara, Turkey: Kitabiyat, 2003.Find this resource:
Schacht, Joseph. Introduction to Islamic Law. Oxford, U.K.: Clarendon Press, 1964.Find this resource:
Tsafrir, Nurit. The History of an Islamic School of Law: The Early Spread of Hanafism. Cambridge, Mass.: Harvard University Press, 2004.Find this resource:
Sunni Schools: The Hanbali School of Law
The Hanbali school is a school of Sunni law and theology whose foundations were laid during the later decades of the ninth century and in the early tenth century, largely under the influence of Ahmad ibn Hanbal (d. 855 c.e.) and his leading disciples. Thanks in part to the discovery of new sources and in part to advances in scholarship—reflected in the work of Henri Laoust, George Makdisi, Christopher Melchert, and others—our understanding of Hanbalism has undergone a virtual revolution since the early 1940s. In contrast to the older view of Hanbalism, based to a large extent on non-Hanbali sources, the school that has emerged is one characterized by significant diversity and by continuing evolution over the course of its history. Far from being an implacable foe of speculative theology (kalām) and Sufism, as it was once thought to be, the school did in fact make a place for representatives of both. Indeed, one of the hallmarks of Hanbalism is precisely its diversity.
The Formative Period (855–945 c.e.).
As a bona fide legal entity, the Hanbal school emerged in two stages. During the first stage, the later decades of the ninth century, the teachings of Ibn Hanbal were collected and organized into quasi-authoritative sources of instruction. The two most important for the history of Hanbalism were the Musnad, a compendium of hadith collected by Ibn Hanbal and those close to him, and the Masaʾil, a collection of Ibn Hanbal's opinions on a variety of questions. Ibn Hanbal's sons, Salih (d. 880) and ʿAbd Allah (d. 903), played a crucial role in the compilation of both. Because Ibn Hanbal held to the primacy of scripture—the Qurʾan, the Sunna of the Prophet—as the proper basis of Muslim belief and practice, he resisted the collection of his teachings lest they come to acquire the status of an authoritative source. Following Ibn Hanbal's death in 855, however, this traditionalist emphasis was gradually, and perhaps inevitably, weakened through an increasing insistence on the authoritative character of his own teaching, a trend reinforced through the collection and compilation of his teaching.
The work of Ibn Hanbal's two sons was complemented by the efforts of others, among them Abu Bakr al-Khallal (d. 923). Along with these second-generation efforts at codification, a serious attempt was made to elaborate a juridical system that enshrined those doctrines that were deemed to be central to the teaching of Ibn Hanbal. Al-Khallal, considered by Melchert to be the real founder of Hanbalism as a school of law, assembled a monumental collection of Ibn Hanbal's teaching and wrote a history of the Hanbali school.
This second-generation effort to codify and systematize the teaching of Ibn Hanbal appears to have produced a reaction among traditionalist elements of the school. Al-Khallal and like-minded Hanbalis were seen as hav-ing compromised the position so clearly articulated by Ahmad ibn Hanbal as to the primacy of the primitive scriptural tradition. Although the opposition survived within the school—through the efforts of men like al-Barbahari (d. 940) and others—it seems not to have threatened the reforms introduced by al-Khallal. Al-Khiraqi (d. 945/46), a younger scholar but solidly within the camp of al-Khallal, produced one of the earliest manuals of Hanbali law, the Mukhtasar, which remained the standard text on Hanbali jurisprudence well into the thirteenth century.
Although Baghdad remained the school's vital center well into the thirteenth century, Hanbalism was carried early into the great cities of Iran, where it remained a significant factor. As early as the tenth century, branches of the school were established in Palestine and Syria, and eventually also in northern Mesopotamia.
Despite the differences within the school, it did come to represent a more or less coherent body of doctrine. Theologically, Hanbalism was generally traditionalist. In matters of law (uṣūl al-fiqh), it emphasized the primacy of the Qurʾan and Sunna as authoritative sources along with the teachings of Ibn Hanbal. Notwithstanding its traditionalist leanings, the school did make a place, however limited, for ijmāʿ (consensus) and for qiyās (analogical reason), as well as for other forms of reason (raʾy), reflected in the increased importance attached to such legal concepts as istiṣḥāb (the relative claims of established practice), maṣlaḥa (public interest), and ijtihād (independent judgment). One of the defining features of classical Hanbali jurisprudence was a rigorous emphasis on strict adherence to scripture, while at the same time allowing for the greatest possible latitude in those areas not covered by the divine commands. It was this tension that gave Hanbali law a degree of flexibility and allowed for the possibility of adjustment as new questions arose.
The Buyid Period (945–1061).
Building on earlier achievements, Hanbalis adopted a two-pronged policy vis-à-vis the Buyid dynasty. On the one hand, insofar as the Buyids supported Shiʿi and Muʿtazila causes, Hanbalis took a firm stand against them; on the other, Hanbalis vigorously promoted the traditionalist cause through their teaching and through public action. Hanbali efforts came to partial fruition in 1041–1042 with the public proclamation, supported by the Abbasid caliph al-Qadir, of a creed that was traditionalist in orientation. This achievement, together with the enhanced public profile of the school, was partly a result of the remarkable intellectual leadership produced within the school during this period. Among the many who were active as scholars and writers, three deserve special mention: Ibn Batta, Ibn Hamid, and Abu Yaʿla.
The writings of Ibn Batta (d. 997), and especially his two Ibanas, remained for centuries a source of inspiration and guidance for Hanbalis. Through his teaching and his writings, especially in the area of uṣūl al-dīn (principles of religion), Ibn Hamid (d. 1012) made important contributions to the further evolution of Hanbali doctrine. It is in the writings of Abu Yaʿla (d. 1066), however, that one can see most clearly signs of Hanbali openness to a number of intellectual currents, among them Ashʿari kalām, to which Hanbalis had traditionally been opposed. Abu Yaʿla's Muʿtamad was one of the earliest of the many works touching on kalām to come out of the Hanbali school.
Under the Later Abbasid Caliphs (1061–1258 c.e.).
Although Hanbalism had made important strides in extending its influence during the Buyid period, it was in the period marked by the arrival of the Seljuqs that the Hanbali school of Baghdad achieved its greatest successes. Having established a popular base of support over the preceding two centuries, the school became a significant force in the political and religious life of Baghdad especially during the twelfth century. Several of the most influential Abbasid viziers during this century—above all Ibn Hubayra (d. 1165) and Ibn Yunus (d. 1196)—were Hanbalis. Ibn al-Jawzi (d. 1201), one of the most influential Hanbalis of the century, served as the favored preacher of the Abbasid court during the reign of al-Mustadiʾ (1171–1178) and the early years of al-Nasir's reign (1179–1225). As an indication of the school's growing influence, the caliph al-Mustadiʾ, in a highly symbolic move, redecorated the tomb of Ahmad ibn Hanbal in 1178.
Among the leading scholars and intellectual leaders during the heyday of Baghdadi Hanbalism, special mention must be made of the following: ʿAbd Allah ibn Muhammad al-Ansari (d. 1089), a Hanbali mystic whose writings became classics of Sufism; al-Kalwadhani (d. 1117), author of the Hidaya, a highly respected manual of Hanbali fiqh; Ibn ʿAqil (d. 1119), a seminal thinker whose works in both theology and jurisprudence reflect a sensitive and subtle mind, as well as an openness to diverse perspectives; ʿAbd al-Qadir al-Jilani (d. 1166), a jurist, preacher, and mystic whose influence continued to be felt long after his death both within and beyond the school; Ibn al-Jawzi, a jurist, historian, and above all preacher whose mastery of the art of waʿz (preaching) and whose many compositions in that genre made him one of the most celebrated Hanbalis of his time; and Ibn Qudama (d. 1223), author of the Mughni, a major compendium of law that continued to be the object of study well into the Ottoman period.
The influence of the Hanbali school of Baghdad was not, however, destined to last indefinitely. As a result partly of internal divisions and partly of the rapidly evolving politics of the late twelfth and early thirteenth century, Hanbalis found themselves slowly but progressively marginalized. With the arrival of the Mongols and the destruction of Baghdad in 1258, Baghdadi Hanbalism was severely weakened.
After the Abbasid Era.
Under the early Mamluks, Syria and Palestine quickly became the center of the school's influence. Three names dominate the history of Hanbalism during the early Mamluk period: Taqi al-Din ibn Taymiyya (d. 1328), his disciple Ibn Qayyim al-Jawziyya (d. 1350), and Ibn Rajab (d. 1393). Ibn Taymiyya, though frequently at the center of controversy, was one of the most original thinkers in the history of the school. Far from being an implacable foe of Sufism and kalām, as is frequently claimed, Ibn Taymiyya was influenced by both. Though a relentless critic of Ibn ʿArabi's brand of Sufism, Ibn Taymiyya was himself a member of the Qadiri Sufi order. Beyond the traditional disciplines, on which he wrote extensively, Ibn Taymiyya's work also included a serious interest in philosophy.
Given the outlook of his master, it is hardly surprising that Ibn Qayyim should develop a serious interest in Sufism, reflected especially in his commentary on the Manazil al-Saʾirin of al-Ansari. Ibn Rajab is known primarily for his history of Hanbalism, the Dhayl ʿala Tabaqat al-Hanabila, and his work on jurisprudence.
In spite of the school's gradual decline during the later Mamluk and Ottoman periods, Hanbalism continued to be represented by a line of respected scholars, among them Ibn Muflih (d. 1480) and al-ʿUlaymi (d. 1521), as well as others whose biographies may be found in the latter's Manhaj and the Mukhtasar of Hasan ibn ʿUmar Shatti (d. 1858). Given its history and its stand on doctrinal questions, Hanbali influence was destined to occupy an important place in reformist circles of the modern period up to the present.
[See also Abu al-Khattab, Mahfuz ibn Ahmad al-Kalwadhani; Abu Yaʿla, Muhammad ibn al-Husayn ibn al-Farraʾ al-Baghdadi; Ibn ʿAqil, Abu al-Wafaʾ ʿAli; Ibn Hanbal, Ahmad; Ibn Qayyim al-Jawziyya, Muhammad ibn Abi Bakr; Ibn Qudama, Muwaffaq al-Din Abu Muhammad ʿAbdallah; Ibn Taymiyya, Taqi al-Din Ahmad ibn ʿAbd al-Halim; Khallal, Abu Bakr Ahmad ibn Muhammad ibn Harun, al-; and Khiraqi, Abu ʿUmar ibn al-Husayn ibn ʿAbdallah, al-.]
Hallaq, Wael B. Ibn Taymiyya against the Greek Logicians. Oxford, U.K.: Clarendon Press, 1993.Find this resource:
Laoust, Henri. “Le Hanbalisme sous le califat de Bagdad.” Revue des études Islamiques 27 (1959): 67–128.Find this resource:
Makdisi, George. “Hanbalite Islam.” In Studies on Islam, edited and translated by Merlin Swartz, pp. 216–274. New York: Oxford University Press, 1981.Find this resource:
Makdisi, George. Ibn ʿAqil et la résurgence de l’Islam traditionaliste. Damascus, Syria: Institut Français de Damas, 1963.Find this resource:
Makdisi, George. “Ibn Taymiya: A Sufi of the Qadiriya Order.” American Journal of Arabic Studies 1 (1974): 118–129.Find this resource:
Makdisi, George. The Rise of Colleges: Institutions of Learning in Islam and the West. Edinburgh: Edinburgh University Press, 1981.Find this resource:
Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th–10th Centuries c.e. Leiden, Netherlands: Brill, 1997.Find this resource:
Sunni Schools: The Khariji School of Law
The Kharijis (Arabic khawārij, sing. khārijī) were those who withdrew from ʿAli's army when he agreed to arbitration at the battle of Siffin. The verb kharaja, from which the name is derived, means in a broader sense “to take the field against someone” and “to rise in revolt”; in the case in point, it means “to secede from the community.” In Qurʾan 9:46, the root kh-r-j, meaning “to go out to combat,” is opposed to qaʿada, meaning “to remain behind, referring to people who held back from the war.” ʿAli's early opponents were also called Harurites, from Haruraʾ, the place where about twelve thousand men who had seceded from ʿAli's party after the conclusion of the arbitration agreement gathered. They were also known as Muhakkima, from their motto “No judgment but God's” (lā ḥukm illā li-llāh). They accused the supporters of the arbitration of having acted contemptibly in a matter concerning God by appointing human arbitrators. Arbitration was a mistake because no one had the right to substitute a human decision for God's clear pronouncement.
The rupture among ʿAli's followers proved serious. The Kharijis from Kufa and Basra assembled in Nahrawan. After calling for resumption of the war with Muʿawiya, who had been proclaimed caliph before the end of a.h. Dhu al-Qaʿda 37/April-May 658 c.e., ʿAli invited them to join him and to fight their common enemy. As the Kharijis refused, ʿAli decided to deal with them before carrying out his campaign to Syria. The battle of Nahrawan (9 Safar 38/July 17, 658) turned into a massacre of the Kharijis. It set the seal on the division between Shiʿi and Khariji and made the split between the Kharijis and the community irreparable.
The Khariji Movement in the First Centuries.
During the Umayyad caliphate, several Khariji revolts broke out in various Muslim countries. Basra was threatened by the Azariqa, one of the main branches of the Kharijis, while the revolts of the Ibadis, a moderate Khariji branch, broke out in the Maghrib, the Hadramawt, and Oman. After occupying the Hadramawt and Sanaa, the capital of southern Arabia, in 129/746–747, the Ibadi army, under the command of Abu Hamza, took Mecca and Medina. About the middle of Jamada I 130/January 21, 748, the Umayyad army reconquered Medina and then Mecca, but were forced to conclude a peace with the Ibadis of the Hadramawt.
The Khariji revolts continued after the ascent of the Abbasid dynasty. The Ibadis and the Sufrites, another moderate branch of Kharijism, succeeded in establishing their rule in the Maghrib. The spread of Ibadiyya in North Africa was a direct consequence of the collapse of the movement in the central portions of the empire. After being defeated by the Umayyads in Iraq and in central Arabia, the Ibadis emigrated to North Africa, where their movement was swollen by many Berber tribes. In the year 140/757, under the leadership of Abu al-Khattab, they succeeded in founding an imamate that controlled most of the Maghrib. After the defeat by the Abbasid army in the battle of Tawurgha and the death of Abu al-Khattab in the year 144/761–762, the Ibadis experienced a temporary setback in North Africa. Nevertheless, they staged several uprisings against the Abbasids and after a long and arduous struggle were able to establish the Rustamid dynasty in the central Maghrib in 162/776. The Rustamid imamate, with its center at Tahert, managed within about half a century to unite all the Ibadis of North Africa. In 908 it fell to the Fatimids, and the Ibadi survivors moved farther south into the interior of the Algerian Sahara, to the oasis of Wargla.
In Oman, the Ibadis had some success in a revolt about 132/750. Toward the second half of the second/eighth century they rose up again and recommenced their activities in the region, creating an imamate that continued almost without interruption for over twelve hundred years.
In other regions there were revolts that were successful for some years and then died out. In various districts around Mosul, in northern Iraq, there were at least sixteen revolts between the middle of the second/eighth and the first half of the fourth/tenth century. Other regions in which there were several Khariji revolts were Sijistan and southern Khorasan.
The Kharijis made an important contribution to Islamic thought and to the formation of Islamic culture as a whole. Khariji doctrine shared a number of features with Muʿtazilite theology as a result of a parallel development, since the center of Ibadism was still Basra at the time when the founders of Muʿtazilism were active there. In general, the dogma of the Kharijis resembled on certain main points that of the Muʿtazilis, such as anti-anthropomorphism and the Qurʾanic theory of creation. The core of the theological teaching of the Kharijis was the concept of a righteous God who demands righteousness from his subjects. Kharijism attached great importance to religious principles that stressed the responsibility of the individual, such as the obligation of “enjoining good and forbidding evil” and the relationship between works and faith. Anyone who committed capital sins, failed to obey divine law, or introduced innovations was an infidel and was fought so long as he or she remained dissident. This doctrine was used to support the Khariji view that the killers of ʿUthman could be justified. Moreover, contrary to Sunni doctrine, anyone who committed mortal sins would be condemned to eternal punishment in hell if he or she did not repent.
The question of the imamate was fundamental for the Khariji movement. It was around this question that the movement split into different sects over minor differences. The Kharijis insisted upon the personal qualities of the imam and the duty of enjoining good and forbidding evil. They held that the limitation of the imamate to the Quraysh tribe was not valid: the most meritorious Muslim should be chosen regardless of his ethnic origins, with personal merits overruling considerations of descent. Leadership stemmed from personal excellence, in their view, and the confidence that the community placed in its imam constituted his authority. The Kharijis supported the principle that any Muslim could be elevated to the supreme dignity of the imamate, even if he was “an Abyssinian slave whose nose has been cut off” (Shahrastani, p. 87). This formulation has often been misunderstood: it actually means that the Kharijis held any qualified Muslim eligible to the imamate provided that he was of irreproachable character. Indeed, the Ibadi sources do not regard slaves as eligible for the caliphate.
The Ibadi School of Law.
The Ibadis are today the only survivors of the Khariji. They form the main part of the population in the oases of Mzab in Algeria, of Zawara and Jebel Nefusa in Tripolitania, on the island of Jerba in Tunisia, and in Oman; small groups are also found on the island of Zanzibar. According to tradition the sect appeared in 65/684–685 in Basra when ʿAbd Allah ibn Ibad broke away from the Khariji extremists over the attitude to be adopted toward other Muslims.
The Ibadi school is one of the oldest surviving schools of law. It is said to have been founded by Jabir ibn Zayd (d. c. a.h. 100). Recent studies have demonstrated that, contrary to what the eminent scholar Joseph Schacht averred (pp. 260 ff.), the Ibadis distinguished themselves from the Sunni schools from the outset and contributed to the general development of Islamic jurisprudence. During the first three centuries of Islam, Ibadi law underwent a process of development that reflects the general development of Islamic law as well as the particularities of the Ibadi madhhab. Toward the beginning of the second/eighth century, some of the doctrines that were to characterize Ibadi law began to be defined, for example:
1. The permanent impediment to marriage between a couple who have fornicated. This theory is ascribed to Jabir.
2. The lack of a right to inheritance between a slave owner and a freed slave when the latter had no legitimate heirs. This doctrine is also ascribed to Jabir. Later Ibadi jurisprudence developed Jabir's doctrine further, providing that the inheritance of a manumitted slave belongs to the people of his same stock (jins) if he leaves no heirs. If it cannot be proved that he belongs to any particular stock, his inheritance is to be given as alms.
3. The principle that usury (ribā) does not exist in the simultaneous exchange of precious metals. Two ancient Ibadi sources, the Aqwal Qatada ibn Diʿama and the Mudawana of Abu Ghanim al-Khurasani, reported that the Prophet had no objection to the exchange of one dinar for two, or one dirham for two, if both lots were delivered immediately. He only objected to it if the delivery of one lot was postponed.
4. A nisāb (minimum amount of wealth subject to zakat, or alms tax) smaller than the amount under Sunni law. The minimum number of oxen under Ibadi law is five head, the same as camels, while Sunni law applies a minimum of thirty head for oxen, fewer than thirty being zakat-free.
In the present-day legal system of the sultanate of Oman, the influence of Ibadi legal thought is restricted to rules concerning personal status (al-ahwāl al-shakhsiyya), particularly family and inheritance law. Civil and commercial law, as well as the law of civil procedure, procurement, etc., are mainly based on Egyptian law, which adopted the French model. The sultanate of Oman still does not have a civil code, but in 1990 a Commercial Code (Act 55) was enacted. The courts usually refer to Egyptian sources (laws, cases, and legal literature) in cases of obligations and contracts.
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Ibn Hazm, ʿAli ibn Ahmad. Kitab al-fisal wa al-milal wa-al-nihal. 5 vols. Baghdad: Maktabat al-Muthanna, 1964.Find this resource:
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Khurasani al-Ibadi, Bishr ibn Ghanim al-. Al-Mudawwana al-kubra. 2 vols. Oman: Wizarat al-Turath al-Qawmi wa-al-Thaqafa, 1984.Find this resource:
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Sunni Schools: The Maliki School of Law, Part 1
The rise of the Maliki school of law in Sunni Islam is connected with the name of the scholar Malik ibn Anas (d. 795 or 796), identified as the founder of this madhhab (school of legal thought). It also looks back toward an older tradition in legal thought, to scholars in Medina in the early eighth century.
Noteworthy jurists (fuqahāʾ) and traditionalists (muḥaddithūn) prior to Malik ibn Anas paved the way for the development of Medinese legal scholarship: Rabiʿa ibn Abi ʿAbd al-Rahman; Ibn Abi al-Dhiʾb, whose legal work was still known in the late tenth century in al-Andalus in an Egyptian edition; ʿUthman ibn ʿIsa ibn Kinana; and others. A few fragments remain from pre-Maliki fiqh (jurisprudence) books of the Medinese scholar al-Majishun, Malik's older contemporary. The presentation of legal principles follows the form of the free interpretation of the hadith known in Medina, without introducing their content into the chain of transmission (isnād). In his Muwattaʾ, Malik ibn Anas combines legal doctrine with hadith, thereby taking into account the generally accepted legal practice of his time (ʿamal ahl al-Madina). His pupils handed down his works, in versions deviating from each other, in the early ninth century.
The transmittal of the Medinese legal teachings, as well as the development of their content, was the work primarily of scholarly circles in Egypt and North Africa. Undoubtedly, the key figure in the dissemination and commentary of Malik's work is the Egyptian Ibn al-Qasim al-ʿUtaqi (d. 806), whose collection of legal questions, arranged by the Cairo scholar Sahnun ibn Saʿid, is contained in the mudawwana (body of law). Malik's Muwattaʾ is fragmentarily preserved in his version with his own addenda.
The writings of the Egyptian Ashhab ibn ʿAbd al-ʿAziz, in the Qairawan Mosque Library, show that the Maliki doctrines are strongly oriented toward raʾy (personal judgment) and only seldom connected with hadith or Medinese legal practice (ʿamal and Sunna). This is equally true of the teachings of ʿAbd Allah ibn ʿAbd al-Hakam, who comprehensively discusses legal themes without recourse to the Sunna of the Prophet, from the point of view of pure jurisprudence, in his Al-mukhtasar al-kabir as a corpus iuris. Al-Abhari (d. 985), the most important representative of Malikism in Iraq, compiled a well-structured commentary (sharḥ) to this work, which was famous as a handbook of this school of law, particularly in the Muslim East.
The presentation of Maliki legal doctrine in the form of collections of individual questions (masāʾil)—often under the title Samaʾ—is characteristic of both the Egyptian–North African and the Andalusian schools. Preserved in fragments, the book by Shabatun Ziyad ibn ʿAbd al-Rahman of Córdoba is a collection of the sayings of several authorities of the Medinese fiqh, of which Malik was merely a peripheral member. Al-ʿUtbi (d. 869) of Córdoba continued this tradition; in his monumental work al-Mustakhraja—also called, after him, Al-ʿUtbiyya—he gathered the juridical questions of his day that Sahnun had not included in his mudawwana. This collection has been lost, except for a few fragments. Abu al-Walid ibn Rushd (or Averroës), who also worked in al-Andalus, cited the collection nearly verbatim in his commentary on al-ʿUtbi in his work Al-bayan wa al-tahsil, and subsequently annotated it, from other Maliki sources, in eighteen printed volumes.
ʿAbd al-Malik ibn Habib of Córdoba discussed in detail the Prophet's Sunna according to the standards of the Medinese scholars, often adapting them to suit local needs. A few fragments of his Al-wadih fi-l-sunan have been preserved. In his Samaʾ he posed legal questions to scholars from Medina and Egypt, and thereby bore witness to internal disparities within the Maliki fiqh. He worked with Yahya ibn Yahya al-Laythi and other scholars as a legal expert in the qadi court of Córdoba. Ibn Sahl then published these collected legal judgments in his Ahkam al-kubra. The most important legal works of the Maliki school, which appeared in the century or so after Malik's death, were assembled by Ibn Abi Zaid al-Qairawani (d. 996) in his Al-nawadir wa-l-ziyadat, in fourteen printed volumes. This work was considered the most comprehensive presentation of Maliki legal teaching in the tenth century and an indispensable source for the study of the lost writings of this school. His famous Risāla, which succeeding generations repeatedly and extensively commentated, served as teaching material for eastern and western law schools.
With the Almoravid takeover in the Maghrib and al-Andalus, Malikism began to spread as far as Timbuktu, Ghana, Darfur, and bordering regions south of the Sahara. Muslim Spain also saw a new flowering of this school under the Almoravids in the eleventh century. The comprehensive Muwattaʾ commentaries of al-Baji and Ibn ʿAbd al-Barr in Córdoba formed the basis for the recognition of Maliki legal thought as a source for jurisprudence and fatwas. A monumental copy of the Muwattaʾ, in Yahya ibn Yahya's edition with annotations from other editions, survives from this period. It was written on parchment in 1108 for the library of ʿAli ibn Yusuf ibn Tashufin in Marrakech.
Brunschwig, Robert. “Polémiques médiévales autour du rite de Malik.” Al-Andalus 15 (1950): 377–435.Find this resource:
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Idris, Hady Roger. La Berbérie orientale sous les zirides. Paris: Adrien Maisonneuve, 1962.Find this resource:
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Jundi, Khalil ibn Ishaq al-. Abrégé de la loi musulmane selon le rite de l’Imam Malek. Translated by G.-H. Bousquet. Algiers: En-Nahdha, 1956–1961.Find this resource:
Müller, Christian. Gerichtspraxis im Stadtstaat Córdoba: Zum Recht der Gesellschaft in einer malikitisch-islamischen Rechtstradition des 5./11. Jahrhunderts. Leiden, Netherlands: E. J. Brill, 1999.Find this resource:
Muranyi, Miklos. Ein altes Fragment medinensischer Jurisprudenz aus Qairawan: Aus dem Kitab al-Hades ʿAbd al-ʿAzjz b. ʿAbd Allah b. Abj Salama al-Maišun (st. 164/780–81). Stuttgart: Franz Steiner, 1985. Fragments from the Kitab al-hajj published in: Al-ʿUtbi, Kitab al-hajj. Edited by Miklos Muranyi, pp. 173–191. Beirut: Dar Ibn Hazm, 2007.Find this resource:
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Sunni Schools: The Maliki School of Law, Part 2
Under the reign of the Andalusian Umayyads, the Maliki school of law became the dominant and later the official madhhab of the Muslim realm in the Iberian peninsula.
An institution central to the judicial system of Muslim Spain was the office of the supreme qadi (qāḍī al-jamaʿa), who was supported by a council (shūrā) of jurist-scholars who acted as muftis consulted by the supreme qadi. These institutions lasted until the end of the Muslim reign in the Iberian peninsula.
The Maliki school in Islamic Spain was dominated by families of scholars like the Banu Mughith or the Banu Rushd in Córdoba and Seville, and the Banu ʿAsim in Granada. Some families even took over the reign in their cities. The system of education based on madrasas, schools of higher Islamic learning, introduced in the East in the eleventh century found its way to al-Andalus in 1347 when the first madrasa was founded in Granada.
Central to the teachings of the Maliki school is the concept of ʿamal, the juridical practice followed at the local courts. Applied in early Islamic times to the teachings followed in the city of Medina, the home, Malik ibn Anas, of Malik ibn Anas, the eponym of the Maliki school, the concept was transformed to be used for the judgments of courts. In North Africa the ʿamal of the Moroccan city of Fez became important.
The Malikis dominated intellectual life in North and West Africa from the twelfth century, establishing their preeminence through a network of scholarship centered especially on the Moroccan higher schools of Islamic learning. The most influential work on Maliki legal pronouncements (fatwas) was collected by the Moroccan scholar Ahmad ibn Yahya al-Wansharisi (d. 1508). The Islamic reform movements in the eighteenth and nineteenth centuries in western Africa were also influenced by Maliki teachings.
Important Maliki authors are Malik ibn Anas (Al- Muwattaʾ), Sahnun (Al-Mudawwana al-kubra), Ibn Abi Zayd al-Qayrawani (Risala, Kitab al-nawadir wa-l-ziyadat), Ibn Rushd (Al-bayan wa-l-tahsil), Ibn al-ʿAttar (Kitab al-wathaʾiq), Ibn ʿAsim (Tuhafat al-hukkam), Khalil ibn Ishaq (Mukhtasar), and al-Tasuli (Al-bahja).
The Malikii school of law is still important in the field of personal status law in several Arab states, for example Morocco, Algeria, Mauritania, and Kuwait. The legal system of Kuwait has been influenced by Egyptian and French law, but the Maliki school of law is the official madhhab and as such is the main source of legislation. In Mauritania the Maliki school has not been constitutionally established as an official madhhab. In Morocco the older, pre-modern Maliki school of law is still important in modern jurisdiction. The Supreme Court of Morocco refers constantly to the classical legal literature in its jurisdiction. Important modifications of the Maliki law in Morocco have recently been introduced in the field of personal status law. The Algerian law of personal status is much more conservative in its worldview than is that of Morocco.
[See also Ibn Rushd, Abu al-Walid Muhammad ibn Ahmad; Khalil ibn Ishaq, ibn Musa al-Jundi; Maghrib and al-Andalus (Muslim Spain); Qayrawani, Ibn Abi Zayd al-; and Sahnun, ʿAbd al-Salam ibn Saʿid al-Tanukhi.]
Müller, Christian. Gerichtspraxis im Stadtstaat Córdoba: Zum Recht der Gesellschaft in einer malikitisch-islamischen Rechtstradition des 5./11. Jahrhunderts. Leiden, Netherlands, and Boston, Mass.: E. J. Brill, 1999.Find this resource:
Santillana, David. Istituzioni di diritto musulmano malichita. 2 vols. Rome: Istituto per l’Oriente, 1925–1938.Find this resource:
Sunni Schools: The Shafiʿi School of Law
The Shafiʿi School is one of the four principal Sunni schools of law (madhhab, pl. madhāhib). It is named after its founder, Muhammad ibn Idris al-Shafiʿi ( a.h. 150–204/767–820 c.e.).
The first group of students formed around al-Shafiʿi in the beginning of the ninth century c.e. in Baghdad; another group coalesced in Egypt, where he moved in 814 or 815. Although al-Shafiʿi's works and followers from the Egyptian period played a more significant role in the construction of the later school, his Iraqi teachings were also incorporated into the Shafiʿi school corpus, albeit with an inferior status.
Al-Shafiʿi clearly sought to perpetuate his teaching by appointing a successor, Abu Yaʿqub al-Buwayti. However, he forbade “blind following” (taqlīd) by his students. In particular, should his opinion be contradicted by prophetic tradition, he instructed his students to defer to the latter. This tension between adherence to al-Shafiʿi's jurisprudence on the one hand and critical evaluation of it on the other created a space within which al-Shafiʿi's students worked out their own interpretations of their master's teaching.
Of works composed by al-Shafiʿi's immediate students, the Mukhtasar (Abridgment) of Abu Ibrahim al-Muzani achieved the greatest popularity, becoming the subject of numerous commentaries, particularly in the tenth and eleventh centuries. Nevertheless, the Shafiʿi school maintained an internal school-historical consciousness. Subsequent generations of scholars preserved a wide range of opinions attributed to al-Shafiʿi by his numerous students, and much of the intellectual dynamic of the school was derived from debates concerning the authority and merit of these divergent opinions.
Influence on Islamic Law.
While al-Shafiʿi's jurisprudence (fiqh) formed the core canon around which the school itself grew, his legal theory (uṣūl al-fiqh) had an impact on the development of Islamic law beyond the Shafiʿi school. By providing a coherent hermeneutic system for interpreting and extending the sources of the law, al-Shafiʿi made possible the later emergence of a common methodological ground shared by all four of the emergent legal schools.
The Egyptian variant of Shafiʿism spread from Egypt to Syria and Baghdad, where it intermingled with the teachings of al-Shafiʿi's Iraqi students. Further eastward expansion, often carried by peripatetic scholars traveling the Silk Road, brought it to Transoxiana. The main intellectual centers of the Shafiʿi school in the tenth and eleventh centuries were Iraq (especially Baghdad, but also Basra), and Khorasan (particularly the city of Nishapur). The school also had a strong presence in Egypt, Syria, the Hejaz region of the Arabian Peninsula, Gujarat on the Indian subcontinent, and southern and eastern Yemen. Of the two principal branches, Khorasan scholars such as al-Juwayni and al-Ghazali on the whole adhered less closely to al-Shafiʿi's opinions than their Iraqi counterparts, who included al-Shirazi and al-Mawardi. The former also shared a tendency to incorporate Ashʿari theology into their legal theory, while the Iraqi scholars maintained a more rigid disciplinary division.
The influence of Shafiʿism within the judiciary lagged behind its popularity among scholars. Although al-Shafiʿi's son Abu ʿUthman had already served as a judge in Syria and/or northern Iraq, it was only in the early tenth century—with the emergence of rivals to the Hanafi-favoring Abbasid dynasty—that significant numbers of Shafiʿi jurists began to receive appointments as judges. By the mid-tenth century, Shafiʿis had held important judgeships in key jurisdictions such as Egypt and greater Syria, Shiraz, and even the Abbasid capital Baghdad.
Relations with Other Legal Traditions.
The Shafiʿis’ principal intellectual adversaries were the members of the Hanafi school. Countless written refutations and counter-refutations bear witness to this rivalry, which extended from the legal into the theological realm: most Shafiʿis were staunch adherents of Ashʿari theology, while early Hanafis typically followed rival Muʿtazili doctrine. In eleventh-century Khorasan this tension combined with political jostling to escalate into physical hostility. A brief but vicious campaign of persecution against Shafiʿi scholars was followed by privileged status during the term of Nizam al-Mulk, chief minister of the Seljuq empire and the founder of the Nizamiyya madrasa network.
After the Mongol invasion in the thirteenth century, official support in the region east of the Tigris vacillated between the Hanafi school and variants of Shiʿi Islam, causing the focus of Shafiʿi intellectual activity to shift to Egypt and Syria, where Shafiʿism had long dominated both the judiciary and the educational realm. This dominance was diminished under the rule of the Mamluks (1250–1517) by the establishment of formal equality among the four main Sunni schools and the appointment of four chief justices, one from each school. The ensuing competition among the schools resulted in a revitalization and flourishing of Shafiʿi scholarship in Mamluk Egypt and Syria that lasted until the Ottoman conquest of the Mamluk realm in 1517 and the subsequent state promotion of Hanafism. Of major Shafiʿi works written in this period, al-Nawawi's books on jurisprudence became standard works used both as teaching texts and even as quasi-codifications for Shafiʿi judges. In the field of legal theory, al-Subki's Jamʿ al-jawamiʿ (The Compendium of Compendia) came to be used as a basic text not only by Shafiʿis but also by scholars of other schools, both Sunni and Shiʿi, and al-Zarkashi's Al-bahr al-muhit (The All-Encompassing Ocean) continues to serve as a standard reference work.
By the later Middle Ages, Shafiʿism had reached Southeast Asia, spreading to Malaysia and Indonesia via travelers and traders from Gujarat and Yemen. The Shafiʿi school has remained predominant in these countries to the present day. It has also retained a prominent position in parts of the Middle East, particularly Yemen, Syria, and Egypt. However, in the modern age the importance and influence of Shafiʿism, especially in the Middle East, has been weakened by two factors that, with certain exceptions, have affected all Sunni schools of law. The first of these is the erosion of the school's independence and perceived authority that followed the founding of centralized nation-states in the colonial and post-colonial period, and the appropriation by the state of key functions related to the definition and enforcement of law. Second, the insistence of Islamic modernists on fresh ijtihād or legal reasoning, and their hostility to the perceived intellectual rigidity of the established legal schools, has undermined the legitimacy of the Shafiʿi school's foundation, namely its members’ loyalty to the legacy of its founder.
[See also Egypt, subentry on Islamic Law in Egypt; Ghazali, Abu Hamid Muhammad; Iran, Islamic Law in; Iraq, Islamic Law in; Islamic Law, subentry on Sources and Methodology of the Law; Juwayni, ʿAbd al-Malik ibn Abi Muhammad, Imam al-Haramayn; Muzani, Abu Ibrahim Ismail ibn Yahya; Shafiʿi, Muhammad ibn Idris al-; and Subki, ʿAbd al-Wahhab ibn ʿAli al-.]
Halm, Heinz. Die Ausbreitung der safiʿitischen Rechtsschule von den Anfängen bis zum 8./14. Jahrhundert. Wiesbaden, Germany: L. Reichert, 1974. The standard account of the spread of the Shafiʿi school (available only in German).Find this resource:
Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th–10th Centuries c.e. Leiden, Netherlands: E. J. Brill, 1997. An influential revisionist history of the early Shafiʿi school; focuses primarily on the institutional self-reproduction of the school.Find this resource:
Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford, U.K.: Clarendon Press, 1953. A good introduction to the legal thought of the school founder, al-Shafiʿi.Find this resource:
Wüstenfeld, Ferdinand. Der Imam el-Schafiʿi: Seine Schüler und Anhänger bis zum J. 300 d.H. 3 vols. Göttingen, Germany: Dieterich, 1890–1891. A collection of short biographies of early Shafiʿis from medieval Muslim sources (available only in German).Find this resource:
The Zahiri School of Law
One of the six major Sunni Islamic legal schools established in the ninth and tenth centuries, the Zahiri school owes its name to a hermeneutic system that emphasized the prima facie meaning—the ẓāhir—of scriptural texts, shunning all methods of discovery of God's legal rulings that depended on human interpretive subjectivity. The school was founded in Baghdad, the capital of the Abbasid Caliphate and the foremost intellectual center of the Islamic world, by Daʾud al-Isbahani (802–884), and for this reason the school is also referred to as the Daʾudi legal school. It flourished for nearly two centuries but subsequently died out, like the Jariri legal school founded by Muhammad ibn Jarir al-Tabari (d. 923).
Daʾud began as a follower of the methods of Muhammad ibn Idris al-Shafiʿi (d. 820), eponym of the Shafiʿi legal school. Daʾud wrote two works in praise of al-Shafiʿi and contended with al-Muzani (d. 864) and other disciples of al-Shafiʿi to be recognized as the chief proponent of the master's scholarly legacy and the truest adherent to his hermeneutic principles. Daʾud understood that al-Shafiʿi had intended to limit the sources of law to scripture alone—the Qurʾan and hadith, transmitted reports of what the Prophet Muhammad had said or done—eschewing recourse to raʾy (considered opinion) and istiḥsān (juristic preference) on the grounds that they were subjective and fallible. The Zahiris rejected not only raʾy and istiḥsān but also qiyās (legal analogy) as inadequate methods of discovering the law, for the rulings of the sacred law had to be known by tawqīf (divine designation). This approach tended to limit the extrapolation of legal rules to cases that were not explicitly addressed in scripture, on the grounds that men could not determine the underlying cause or principle on which a particular ruling was based.
In place of these methods, Daʾud and later Zahiris proposed the concept of istidlāl, which they took to mean determining the full set of implications behind a given scriptural text. In their view, this was not the same as subjective inquiry, because istidlāl only retrieved meanings already contained in the linguistic construction of the text. Under this rubric Daʾud and the Zahiris used a number of rational arguments that other jurists included under the rubric of qiyās, such as reductio ad absurdum and arguments a fortiori. Reports transmitted through a single chain by authorities with a record of moral integrity were held to provide certainty, so Zahiri jurisprudence relied heavily on hadith. The opinions of the companions of the Prophet were fallible individually, and so were unacceptable as legal proof on their own, but a consensus (ijmāʿ) of the Prophet's companions was binding because it was presumed to discover the Prophet's opinion. The unanimous agreement of later generations, however, was not taken into consideration.
Unlike the Hanbalis and other traditionalists, the Zahiris were not antitheoretical, as has often been supposed. Rather, they were highly theoretical and skilled dialecticians, drawing on the arguments of Muʿtazila theologians such as al-Nazzam (d. 825–835). Massignon's claim that all the Zahiri jurists were Muʿtazilas in theology is probably overstated, but it is true for many figures. The Imami Shiʿis of the late ninth and tenth century also had strong ties to the Zahiri school, which, in its emphasis on scriptural texts, they saw as the most amenable of the Sunni legal schools. The Zahiris’ emphasis on strict adherence to the text often led to their adoption of liberal rather than conservative positions, again in contrast to the Hanbalis.
Daʾud is reputed to have lectured to more than four hundred students at a time at his assemblies in Baghdad. He was extremely prolific, writing many large works on the law, as well as several works treating topics of legal theory. His son, Abu Bakr Muhammad ibn Daʾud (d. 910), took over his teaching upon his death; Daʾud was succeeded in Baghdad by Ibn al-Mughallis (d. 936) and others. Zahirism had spread to Egypt, Syria, and Khorasan by the tenth century. One Zahiri jurist, Ibrahim ibn Jabir (d. 922), served as judge in Aleppo in the early decades of the tenth century. In the eleventh century the center of Zahiri scholarship shifted from Baghdad to Shiraz, where the legal school was patronized by the Buyid sultans (r. 945–1055). In the West, Zahirism enjoyed a revival in the work of the Andalusian Ibn Hazm (d. 1064) and several followers, but it died out soon thereafter. Daʾud's works and those of most of his followers have been lost completely. Most surviving Zahiri legal material derives from the works of Ibn Hazm, particularly his extensive legal work Al-muhalla and his manual of legal theory Al-ihkam fi usul al-ahkam.
The Zahiris exercised a great influence on the history of Islamic legal theory, sparking a heated debate on the validity of legal analogy that shaped later tradition and forced other legal theorists to justify much more carefully the application of extratextual methods in Islamic legal hermeneutics. The Zahiris also influenced other fields, including grammar, rhetoric, and exegesis. The Andalusian Ibn Madaʾ (d. 1195), for example, followed Zahiri method in his Kitab al-radd ʿala al-nuhah (Refutation of the Grammarians), rejecting all syntactical explanations that were not based on elements explicit in the text, such as assuming the ellipsis of a regent (governing word)—for example, of a verb that would require a direct object or cognate accusative—or the ellipsis of a virtual regent, as in al-ibtidāʾ (inchoation), which would cause a noun standing alone or at the beginning of a sentence to take the nominative case.
Goldziher, Ignác. The Zahiris, Their Doctrine, and Their History: A Contribution to the History of Islamic Theology. Translated by Wolfgang Behn. Leiden, Netherlands: E. J. Brill, 1971. Originally published in German in 1884, this classic study of Daʾud and the Zahiri school has been superseded in part by recent accounts based on sources unavailable in the late nineteenth century.Find this resource:
Mahmud, Ahmad Bakir. Al-Madrasah al-Zahiriyah bi-l-mashriq wa-l-maghrib. Beirut, Lebanon: Dar Qutaybah, 1990. An informative, extensive survey.Find this resource:
Massignon, Louis. The Passion of al-Hallaj: Mystic and Martyr of Islam. 4 vols. Princeton, N.J.: Princeton University Press, 1982. Translated by Herbert Mason. Includes a detailed discussion of Daʾud's son, Abu Bakr Muhammad ibn Daʾud, one of the jurists who condemned al-Hallaj as a heretic, and brings out the strong connections of the Zahiri school with Muʿtazili theology and Twelver Shiʿism.Find this resource:
Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th–10th Centuries c.e. Leiden, Netherlands: E. J. Brill, 1997. The most convenient survey available.Find this resource: