Developing Five Islamic Schools of Law - Essay Example

Development of the Five Islamic Schools of Law Law is central to Islamic thought. (Shamsy 2007). The five major schools of Islamic law during the Abbasid period of 758 to 1258 were the Maliki, Hanifi, Shafi'I, Hanbali and Jafari schools of thought. It is both fascinating and useful to explore the creation and development of these five, distinct schools of Islamic law. To understand the progression of the formation of the five schools of Islamic law, it is important first to be familiar with an ancient community that was known as Medina. Many of the things that happened in Medina serve as background to the development of the Islamic schools of law, for this is where the Prophet Muhammad lived. Medina was the location that Muhammad and his followers settled in after traveling to it in 622. (Kahn 2001). Other Arab tribes as well as Jews were already living there, so Muhammad made a series of agreements with them in order to maintain an organized, peaceful relationship, as well as lawful order. These formal agreements have come to be known as the Constitution of Medina; it involved the rights, duties and methods of solving disputes among members of various classes. (Al-Muhajabah, 2003). The agreements also gave the prophet Muhammad jurisdiction over all of the people living there. His actions, including his jurisdiction, were based on his interpretation of and strict adherence to the Qu'ran. (Kahn, 2001). "In simple terms, the first Islamic state established in Medina was based on a social contract, was constitutional in character and the ruler ruled with the explicit written consent of all the citizens of the state." (Kahn, 2001). The constitution of Medina established a pluralistic state -- a community of communities. It promised equal security to all and all were equal in the eyes of the law. (Kahn, 2001). Each tribe had its own laws, and they all had to agree on them for them to be held as laws. "To the tribe as a whole belonged the power to determine the standards by which its members should live." (Coulson, 1994). The pluralism set forth by the community of Medina set the stage for the pluralism found of the separation of Islamic law into five distinct schools. The first school of law to be discussed is the Maliki school. The school of Islamic law referred to as Maliki was founded by Anas ibn Malik. This is the school that was formerly the ancient school of Medina. Thus it continued to accentuate the practices that were encompassed by the Medinese community. While the three other schools or jurisprudence adhered to using the Qu'ran as their primary source for law formulation, the Maliki school was the only one to use the practice of the people of Medina as not only a source but often the primary source (rather than the Qu'ran). Malik felt that utilizing the practices of the people of Medina was a good source because both Muhammad and his companions lived their for most of their lives. Malik considered the people of Medina to be "living Sunnah." (Wikipedia 2008). Although some reliance on "Hadith (traditions concerning the Prophet's life and utterances)" was still evident, the Malikites preferred traditional opinions and analogical reasoning. (Encyclopedia Britannica 2008). The Maliki school believed that their laws did not need to be based on the Qu'ran and could instead be based on Muhammad's companions, for he gave them a "distinction and knowledge" that God had given to him. There were no records of God's words save those in the knowledge shared by Muhammad. (Brockopp from Weiss 2002). "The Great Shaykh theory makes explicit what is implied in these texts: that individuals, such as Imams and teachers, are invested with such religious authority that their words can generate law. Ascribing religious authority to great individuals quickly became endemic in Islamic culture great men and women, while no longer prophets, were still thought to embody certain ideals of truth and justice which emanated from the divine realm." (Brockopp from Weiss 2002) While text from the Malik shows evidence of references being made to the companions and followers of the prophet Muhammad, these references are thought to have played a relatively minor role in the formation of the law. Much of the text is actually just Malik's own words. Much of his writing is done without any sort of prophet authority whatsoever. (Brockopp from Weiss 2002). "Imam Malik was particularly scrupulous about authenticating his sources when he did appeal to them, however, and his comparatively small collection of ahadith, known as Al-Muwatta ("The Approved"), is highly regarded. Malik is said to have explained the title as follows: "I showed my book to seventy jurists of Medina, and every single one of them approved me for it, so I named it 'The Approved'."" (Wikipedia 2008). It only seems fitting for this to have been the case - as stated previously, it was important for laws to be agreed upon by the entire community for them to be laws. The Maliki school had a tendency to focus on the present rather than the past. (Brockopp from Weiss 2002). When the Malikite school was first formed, many Shaykhs (great rulers) formulated laws that were transmitted through time. As time progressed, however, Shaykhs ceased to be a thing of the present, for "the dreams, prophecies and miracles associated with these great shaykhs of the past was a sign to later generations that these individuals had received a special dispensation from God, making them worthy authorities to transmit His law and to found, in retrospect, the schools which eventually bore their names." (Brockopp from Weiss 2002). Anas ibn Malik died in 795. (Khalifah Institute, 2008). In the eyes of students of Maliki, traditionalists were believed to be prone to contradiction as well as dangerous in the sense that they followed a single transmitter (just Muhammad or the Qu'ran) rather than a group of people (such as Muhammad's companions and students). Not everyone saw traditionalists as a threat, however. Traditionalists saw the Maliki school as a threat because it did not look only to prophets and the Qu'ran for authority. (Brockopp from Weiss 2002). This concern played into the development of some of the other schools of law, including those of Shafi'I and Hanbali. The Hanifi school to be discussed next, however, was similar to the Maliki school. Imam Abu Hanifa founded the Hanafi school of Law. (Khalifah Institute 2008). Not only did Hanifa study under many teachers, including Ja'far al-Sadiq (Wikipedia 2008), but he met and spoke with a companion of Muhammad, making him one of the second generations of people that received oral transmission of the teachings of Muhammad. The companion he met happened to be Anas ibn Malik, the very founder of the Maliki school of law. "One of Abu Hanifa's main students, on whose teaching a lot of the Hanafi school is based, studied under Imam Malik as well." (Wikipedia 2008). It is believed that the Hanifi school of law is the oldest of the five schools of Islamic law. (Wikipedia 2008). Unlike the Maliki school of law, Hanifi was not founded in Medina, and there were very few companions of Muhammad whose insight could be looked to for the formulation of legislation. "For this reason Hanafi methodology involved the logical process of examining the Book and all available knowledge of the Sunna and then finding an example in them analogous to the particular case under review so that Allah's deen could be properly applied in the new situation. It thus entails the use of reason in the examination of the Book and Sunna so as to extrapolate the judgements necessary for the implementation of Islam in a new environment. It represents in essence, therefore, within the strict compass of rigorous legal and inductive precepts, the adaptation of the living and powerful deen to a new situation in order to enable it take root and flourish in fresh soil." (Abdalhaqq from Wikipedia 2008). While the Maliki school was thought to be liberal, the Hanifi school is thought of to be the most liberal of the five schools, as it places the most emphasis on human reason. (Wikipedia 2008). It does this because, as previously stated, it could not rely on companions of Muhammad for legal insight. Imam Abu Hanifa died in 767. (Khalifah Institute, 2008). Ja'far al-Sadiq, who lived from 702 to 765, is known to be responsible for the founding of another liberal school of Islamic law, which is referred to as Jafari jurisprudence. (Wikipedia 2008). Much of Jafari jurisprudence was taken from the Hanifi school. (Ahmad 2008). Al-Sadiq was not only very proficient in his knowledge of the Qu'ran and the Sunnah, but was also exceptional in a variety of fields including natural science, mathematics, philosophy, astronomy, anatomy and alchemy. "Ja'far Al-Sadiq was known for his liberal views on learning, and was keen to debate with scholars of different faiths and of different beliefs." (Wikipedia 2008). With a capacity for such a variety of subjects, it comes as little surprise that he was open to beliefs that differred with and perhaps even challenged his own. Scholars such as Muhammad Qadiri uphold the belief of the Ja'fari school as the fifth Islamic school of law to be a myth. The school was "an attempt by Shiites to gain acceptance from Muslims under the guise of a school of Islamic law." (Qadiri 2008). Qadiri feels that nothing distinguishes the Ja'fari school from either the Hanifi or Maliki schools, and thus to learn the legal theories one must learn about those schools. Whether the Ja'fari school should be considered the fifth Islamic school of law or not, it is important to understand its place in Islamic history and that it coincided with the development of the other schools. Ja'far al-Sadiq died in 765. (Columbia Encyclopedia 2008). Yet another follower of Malik, Shafi'i founded the Shafi'i school of Law. (Khalifah Institute 2008). "Imam Shafi'i was also taught by both Abu Hanifa's students and Imam Malik, and his respect for both men is also well-documented." (Wikipedia 2008). The element of respect will be brought back in more detail in a discussion yet to entail regarding the dialect that was crucial for the reduction of pluralism. For now, the Shafi'I school must be explicated further. Shafi'I was a member of the school of Medina and Maliki. He appreciated the liberalism of the Maliki school but wanted to address the pressing concerns of traditionalists as well. (Wikipedia 2008). Thus his studies led him to combine the two in such a way that led to the foundation of this new school of law that involved "a method for systematic reasoning without relying on personal deduction." (Wikipedia 2008). This combination is viewed by writers Shacht and Hodgson as an attempt to reduce pluralism and unite Islamic law. "Shacht (1950), Marhsall Hodgson (1974), and others stress the connections of al-Shafi'I with the movement, common in the eighth and ninth centuries, to "Islamize" the territories which had come under Islamic rule following the death of the Prophet in 632. Schacht, in particular, argues that Islamic reasoning in matters of practice was characterized (prior to al-Shafi'I) by a conflict of local traditions. Such diversity seems to have been ill-suited to the needs of Islamic society in several ways. First, the variations among local traditions suggested a denial of that unity which the Qu'ran indicates ought to be the goal of humanity under God. (Kelsay 1994). The resultant Shafi'I school of law, as suggested by the Four Sources Theory, involves the use of four hierarchical sources to produce law. (Lowry from Weiss 2002). These sources, in order of importance beginning with the most important, are the Qu'ran, Sunnah, consensus and legal interpretation. (Coulson 1994). As the Qu'ran was viewed as the most important source, Shafi'I felt that any sort of community consensus or stories from companions that contradicted the Qu'ran were completely unacceptable. (Wikipedia 2008). Most of the interpretations of Shafi'I law involve the acknowledgement of these four sources. (Lowry from Weiss 2002). Using sources that are the closest to God's words (such as the Qu'ran) is done "in the faith that God, the creator and judge of all things, provides guidance that makes for the happiness of all creatures in this life and next. The human task is to learn to read the signs by which this guidance is given. (Kelsay 1994) As noted by Shafi'I, the Qu'ran is not always interpreted with ease. Thus Shafi'I stressed the importance and necessity of religious specialists. (Kelsay 1994). This theory implies that first one would look for a fitting law in the Qu'ran, and if there was none then they would go to the Sunnah, and so forth. Writer Joseph Lowry finds this explanation too simple. (Lowry from Weiss 2002). He believes that the context of a situation requiring legal contemplation is more important than following the order of the hierarchy of the sources. According to Lowry, Shafi'I writing suggests that "if one plans to choose between two competing interpretations, especially if one's choice is the less obvious of the two, then one must have a reason to support that choice." (Lowry from Weiss, 2002). While Lowry's contemplation is interesting, it should be noted that the majority of scholarly text currently upholds the Four Sources Theory. Shafi'I, the founder of the Shafi'I school was "also known as the "First Among Equals" for his exhaustive knowledge and systematic methodology to religious science. His approach to Islamic jurisprudence has become the standard reference of the scholars not only among his School but among others as well." (Wikipedia 2008). Shafi'I the founder died in 820 (Khalifah Institute 2008) and left behind him a remarkable legal methodology. The Shafi'I School of Law is to be considered one of the most conservative of the four schools of law. It "emphasizes proper istinbaat (derivation of laws) through the rigorous application of legal principles as opposed to speculation or conjecture." (Wikipedia 2008). Another conservative school is the final school to be discussed, the Hanbali school. Imam Ahmad ibn Hanbal founded the Hanbali school of law. "Imam Ahmad ibn Hanbal studied under Imam Shafi'i, and consequently there are many similarities between the two [Islamic schools of law]." (Wikipedia 2008). Similar to Shafi'I, Hanbali drew from the sources of the Qu'ran and the Sunnah first and foremost. When neither the Qu'ran or the Sunnah could provide evidence for proper legislation, verdicts issued by companions of Muhammad were to be considered. In the case that views of two or more different companions were in conflict with one another, the opinion most closely supported by the Qu'ran or the Sunnah prevailed. If no evidence was provided by the Qu'ran, the Sunnah, or the companions of Muhammad, Hanbali would then look to those individuals who had learned from someone who had learned from Muhammad - in other words, a link was missing. If evidence did not even reside with one of these individuals, only then would Hanbali resort to analogical deduction, and this was done with utmost caution. (Wikipedia 2008). Hanbali was known to have had a significantly fewer number of followers than the other schools of Islamic law. This may have had less to do with the validity of Hanbali thinking and more to do with the fact that Hanbali students often declined positions of authority. Rather than accept any sort of fame, when a Hanbali student excelled in knowledge he would spend his time thanking and worshipping Allah. Because few authority positions were held by Hanbalis, courts and lands were dominated by the other schools of law. In a land dominated by one of the schools of law, it was most wise for people in that land to study and familiarize themselves with those beliefs. (Wikipedia 2008). "Despite being an exceptional jurist, Imam Ahmad detested that his opinions be written and compiled, fearing that it may swerve his students away from studying the sources of Law, the Quran and the Sunnah. Yet, as Ibn al-Jawzi comments, Allah knew the sincerity in his heart and raised around him faithful students who would record his opinions, such that an independent school of jurisprudence and theology was formed and attributed to Imam Ahmad." (Wikipedia 2008). He died in 855 (Khalifah Institute 2008) but his legacy lived on through his faithful students. What eventually developed from the progression of these five schools was what Hallaq referred to as a "Great Rationalist-Traditionalist Synthesis." Hallaq calls it this because Islamic law combined the sacred text of the Qu'ran and prophetic Hadith with methods of contemplation and analogical reasoning. Ahmed el Shamsy of Harvard University notes that while writer Joseph Schacht believes this reasoning was achieved in the 9th century, Hallaq attributes it to the 10th century when Islamic law had reached its "final form" with its "essential attributes." (Shamsy, 2007). Ahmed argues against Hallaq, reasoning that ideas of the hierarchical four sources had been proposed and agreed upon by scholars in the early 8th century. (Shamsy, 2007). I believe that Hallaq is not necessarily wrong in that his "Great Synthesis" perhaps refers to the more evolved and synthesized rather than hierarchical form of the four sources that was eventually accepted. With an assortment of Islamic schools of thought, people of the Islamic faith often referred to themselves as which school they believe in. One could say, for example, that they were Maliki or Shafi or so forth, rather than simply stating that they are Muslim. Evidence from the Qu'ran suggests disproval of this sort of pluralism. "As for those who divide their religion and break it up into sects, you have no part in them in the least." (Qu'ran, 6:159). It is important to note, however, that the schools are not sects of Muslim, but rather schools of jurisprudence. In addition to this defense, attention must be drawn also to the fact that most Muslims believed that all of the five schools had "correct guidance." (Wikipedia 2008). "It should be noted that experts/scholars of fiqh follow the usul (principles) of their own native madhab (schools of law), but they also study the usul (sources), evidences, and opinions of other madhabs." (Wikipedia 2008). Dialectic was very important in reducing pluralism. "In the tradition of Aristotle, Muslim scholars reckoned that success is achieved when one secures the agreement of his opponent on a view which one advocates. Minimizing differences of opinion on a particular legal question was of utmost importance, the implication being that truth is one, and for each case there is only one true solution." (Hallaq, 1987). Many of the founders of the various schools respected each other, studied with and from one another, and so forth. "Uncertain judgments left the door open for jurists to try and discover other, more certain judgments or at least judgments that were closer to what they conceived to be God's intent." (Hallaq, 1987). Even if one of the schools of law during the Abbasid period was more true than the others, it could not have likely existed without the creation and development of the others. The relationship among the five schools was mutual; the development of one depended on the development of the others. The investigation of the development of the five Islamic schools of law lends immense insight into Abbasid Islamic life. Sources Cited Ahmad A (2008) 'Difference between the schools of law' viewed 22 May 2008 from Yahoo: http://answers.yahoo.com/question/indexqid=20071213101720AANtQBl Al-Muhajaba (2003) 'the Constitution of Medina,' Al-Muhajaba's Islamic Blogs, viewed 18 May 2008 http://www.muhajabah.com/islamicblog/archives/veiled4allah/005169.php. Bearman P (2006) The Islamic School of Law: Evolution, Devotion, and Progress Harvard Law School. Columbia Encyclopedia (2008) 'Ismailis' Columbia Encyclopedia viewed 22 May 2008 from HighBeam Encyclopedia: http://www.encyclopedia.com/topic/Ismailis.aspx. Coulson N (1994) A History of Islamic Law Edinburgh University Press. Encyclopedia Britannica (2008) 'Mlikyah,' Encyclopedia Britannica Online, viewed 18 May 2008, http://www.britannica.com/EBchecked/topic/360203/Malikiyah. Hallaq W (1987) "A tenth-eleventh century treatise on juridicial dialect" Muslim World 77 no 3-4 p 197-228. Hallaq W (2004) The Origins and Evolution of Islamic Law Cambridge: Cambridge University Press. Kelsay J (1994) 'Divine Command Ethics in Early Islam: Al Shafi'I and the Problem of Guidance' Journal of Religious Ethics 22 no 1 p 101-126. Khalifa Institute (2008) 'The Abbasid Caliphate,' Islamic World viewed 18 May 2008, http://www.islamic-world.net/islamic-state/abbasiah.htm. Khan M (2001) 'The Compact of Medina: A Constitutional Theory of the Islamic State,' Mirror Internationa, viewed 18 May 2008 from IJTIHAD http://www.ijtihad.org/compact.htm. Mumisa M (2002) Islamic Law: Theory and Interpretation Maryland: Amana Publication. Qadiri M (2008) 'The Myth of a "Ja'fari" Madhab' Islam Awareness viewed 22 May 2008, http://www.islamawareness.net/Madhab/Jafari/myth.html. Shamsy A (2007) "The origins and evolution of Islamic law" Journal of Religion 87 no. 1 p 145-146. Weiss B (2002) Studies in Islamic Legal Theory Brill. Wikipedia (2008) 'Madh'hab' Wikipedia the free encyclopedia viewed 19 May 2008 http://en.wikipedia.org/wiki/Madhab Read More