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Islamic Schools Of Jurisprudence
The great majority of Muslims belong to one of several madhāhib (pl. of madhhab), schools of Islamic legal doctrine whose jurisprudence developed beginning about a century after the death of the Prophet Muḥammad, in 632. The following subentries describe the Shīʿī and the Sunnī (madhāhib), respectively.
Shīʿa Schools Of Jurisprudence
The Imāmī School
The origins of the Imāmī school of law (madhhab) can be traced to Imām Muḥammad al-Bāqir (d. 743) and Jaʿfar al-Ṣādiq (d. 765), the fifth and sixth Imams2@2@w of Twelver Shīʿī 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 (or as the Twelver school). Jaʿfar was an accomplished jurist, who disputed with (and supposedly bested) Abū Ḥanīfah (d. 765). From its beginnings in Medina, where Muḥammad al-Bāqir and Jaʿfar al-Ṣādiq were based for much of their lives, the school spread to their followers in Iraq and Iran. Baghdad and Qom became centers of Imāmī legal thought, particularly after the disappearance (ghaybah) of the Twelfth Imam in 940. Under both the Umayyads and the early ʿAbbāsids, the Imams were seen as political threats and were suppressed. Under the Shīʿī Būyid dynasty (945–1055), however, Imāmīs succeeded in gaining some political power, and the developing Imāmī school of law influenced some decisions in the Būyid courts. In positive law, the Imāmī school was based on the ḥadīth reports from the Imams, mainly those related from al-Bāqir and al-Ṣādiq, but also some from ʿAlī al-Riḍā (d. 818, the Eighth Imam). The distinctive doctrines of the Imams included, for example, a system of inheritance law in which the Sunnī concept of ʿaṣabah (male relatives who inherit after the Qurʾānic heirs) was rejected and male and female relatives were given greater equality. The “marriage of pleasure” (mutʿah), which is contracted for a limited period, was considered licit by Imāmīs, though forbidden by the Sunnīs. The absence of an Imam also implied the illegitimacy of all current political power. Hence, the duty to pay religious taxes (zakāt and khums) was thought by some early Imāmī jurists to have lapsed (sāqiṭ), because there was no legitimate power to collect and distribute them. The legal system that emerged was, however, similar to that of the rival Sunnī schools in many respects.
Early Imāmī scholars collected legal traditions (sing. ḥadīth) 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) that, similar to that of the Sunnī jurists, attempted to present a comprehensive theory of law. In the early period Imāmīs rejected personal juristic effort (ijtihād) and the uncertainty that it inevitably engendered in the jurist’s mind. Al-ʿAllāmah (d. 1325), however, argued for ijtihād and adopted elements of Sunnī jurisprudence. Subsequent Imāmī jurisprudence followed al-ʿAllāmah’s model, even through the Ṣafavid and Qājār periods in Iran, where it was partially instituted in the court system. Those qualified to perform ijtihād (sing. mujtahid) faced opposition from the traditionalist Akhbārī school, which rejected reliance by the jurist on anything but the revealed sources, but by the end of the nineteenth century, al-ʿAllāmah’s mujtahid theory dominated the Imāmī Shīʿī world.
When the Ṣafavids came to power in 1501, they proclaimed Imāmī Shiism the state religion. The lack of centralized policy that had characterized the breakdown of Timurid rule was replaced with the clear dynastic power of the Ṣafavids and the enforcement of Imāmī doctrine throughout the land. This changeover to Shi’ism took some time, and influential non-Imāmī thinkers continued to operate in Iran well into the sixteenth century, but political and judicial influence was reserved for Imāmī Shīʿīs, and the Ṣafavids began to develop their own distinctive state-controlled judicial system. They inherited the position of ṣadr from their Sunnī predecessor dynasties, but they expanded the remit of the office. The ṣadr took control of mosques, religious schools, courts, and endowments and was charged with appointing local chief judges, giving them the title shaykh al-Islām, an honorific title for a position that had been elevated to a state-appointed, local official, religiously trained and legally qualified, who was in charge of the local court system in a town or province. A shaykh al-Islām was appointed for every major city during the Ṣafavid period. It was through this hierarchy of state-appointed religious scholars, from the Ṣafavid court down to the village chief, that the spread of Imāmī Shiism was achieved in the first century or so of Ṣafavid rule.
The Imāmī Ṣafavid jurists set about establishing a court system that would maintain their legal prerogative within the Ṣafavid administration. Religiously trained judges implemented Imāmī law in the Sharīʿah courts, and government bureaucrats oversaw the courts that applied the law of customary practice (ʿurf). This dual system survived the fall of the Ṣafavids in 1722, the rise of the Sunnī-oriented Nādir Shāh, and the power of the tribal Shīrāz-based Zand dynasty. Historical records suggest that the two jurisdictions worked closely together. There was a general division of labor, as trade and land disputes were covered by the ʿurf courts, while personal law and strictly religious matters (e.g., apostasy, endowment cases) were dealt with by the Sharīʿa judge.
Alongside these practical developments in the Iranian court system, the Imāmī religious scholars established for themselves a secure financial base through the remittance of religious taxes entirely separate from the state. This enabled them to continue the development of their own jurisprudence. This independence manifested itself in opposition to the policies of the Qājār shahs during the Constitutional Revolution (1905–1907) and in the call by some jurists for a Sharīʿa-based legislature as a device whereby the arbitrary imperial decree of the shah might be controlled. The call for a religious legislature did not survive the civil tumult of the Constitutional Revolution, as more secularized elements of the revolutionary movement took control.
Elements of Imāmī doctrine were included in Iranian legal codes in the early 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 Shīʿī, the Pahlavi shahs pursued a modernizing agenda, abolishing the headscarf and suppressing the influence of Imāmī jurists. The marginalization of religion in juridical matters, linked to the general secularization of the public sphere, led to popular discontent beginning in the early 1960s. This discontent grew under the Imāmī jurists, who, given their financial independence, operated as a focus for opposition to the Pahlavis. Several scholars, including Ruhollah Khomeini, were expelled in the mid-1960s for antigovernment activities.
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 under Saddam Hussein attempted to include elements of Imāmī law in its personal codes. After the 2003 invasion of Iraq, the Iraqi Shīʿah 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.
The Ismāʿīlī y School
Like the Imāmī Shīʿī, the Ismāʿīlīs accept Jaʿfar al-Ṣādiq (d. 765) as an imam, that is, an infallible source of law. It is only after Jaʿfar’s imamate that the Ismāʿīlīs differ from t2@he Imāmīs concerning the identity of the imam, arguing that Jaʿfar’s son Ismāʿīl, rather than Mūsā, was the next imam. Ismāʿīlī law, most evident in the works of the great Fāṭimid Egyptian jurist al-Qāḍī al-Nuʿmān (d. 974), resembles Imāmī law in some respects, being derived from Jaʿfar’s teachings. Ismāʿīlī law is, however, distinctive in the role it permits the imam of adjusting the dictates of the Sharīʿah to the exigencies of the time. Hence the largest contemporary Ismāʿīlī group, the Nizārīs, follow a code of religious law (in terms of ritual and worship) that is very different from that of the Imāmīs and Sunnīs.
After the collapse of the Fāṭimids (1171), the Ismāʿīlī movement fractured between rival claims to the imamate. The Nizārī (Agha Khani) Ismāʿīlīs had split earlier from the Fāṭimids and survived in small communities in Iran and Syria, and later in India. Most of the remnants of Fāṭimid Ismāʿīlīsm 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 Sharīʿah has not been a major element of Ismāʿīlī scholarship since the time of al-Nuʿmān. Today, Ismāʿīlī communities have both codes of ethics and recommended ritual and community practice. These have the imprimatur of their various imams or dāʿī muṭlaqs, but there is no mature science of legal exegesis: a living, omniscient guide renders interpretation unnecessary.
The Zaydī School’s
The Zaydīs are a sect of Shīʿī Islam that takes its name from Zayd ibn ʿAlī (d. 740), a great-great-grandson of the Prophet Muḥammad. Zayd led an abortive revolt in Kūfa against Umayyad rule in 740 and died a martyr. His political example, as a rebel against unjust rule, has remained a cornerstone of Zaydī lself-definition. On questions of law, the most significant repository of his learning is the work known as the Majmūʿ of Zayd ibn ʿAlī. It has been claimed by Zaydīs, and by some Western scholars, to be the earliest work of Islamic law. Zayd’s authorship, however, is a disputed matter. Wilferd Madelung (a German-American author and scholar of Islamic history), for example, has argued that the work represents the Kūfan legal tradition and that Zayd is unlikely to have had a significant part in it.
Throughout the ages, very few Zaydīs have claimed to be followers of Zayd on questions of law. Rather, the Zaydī tradition has spawned several legal schools, each tracing its origin to an individual imam in the tradition. Of these imams, those with the most significant historical followings were the Medinan Ḥasanid al-Qāsim ibn Ibrāhīm (d. 860); his grandson al-Hādī ilā al-Ḥaqq Yaḥyā ibn al-Ḥusayn, the founder of the Zaydī state in Yemen; and the Caspian imam al-Nāṣir li-Dīn Allāh al-Ḥasan ibn ʿAlī al-Uṭrūsh. Zayd’s unimportance as a legal eponym has generated much controversy within Zaydī circles, as well as polemics with non-Zaydīs, about what specifically defines Zaydism. The classical response of the Zaydīs 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 differences of opinion within the sect.
The Zaydīs have survived into modern times in the northern highlands of Yemen, where the legal school (called al-Hādawiyya) of al-Hādī Yaḥyā, the founder of the first Zaydī state in Arabia, has dominated. Al-Hādī’s most important legal text is the Kitāb al-Aḥkām, but his views were set in canonical fashion by Aḥmad ibn Yaḥyā al-Murtaḍā (d. 1436) in Kitāb al-Azhār. The latter remains the standard work of reference for Zaydī law in Yemen.
A legal tradition emerged around al-Hādī’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-Hādī for the Hadawī 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 Zaydī madhhab in Yemen was identical to the elaboration of the teachings of al-Hādī 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 Kitāb al-Azhār was written, the Zaydī 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 Muḥammad ibn Ibrāhīm al-Wazīr, and perhaps the most famous in this lineage is Muḥammad ibn ʿAlī al-Shawkānī (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-Hādī’s doctrine, could his followers find the requisite authority on which to base their taqlīd. The solution that 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 Sunnī ḥadīth collections, when elaborating legal opinions. The legal methodology of these madhhab opponents is the strict constructionism of the Sunnī traditionists (ahl al-ḥadīth), which in contemporary times is associated with the Salafīs and Wahhābīs.
In the eighteenth century, the Zaydī state dominated most of Yemen and was headed by the imams of the House of Imām al-Manṣūr al-Qāsim ibn Muḥammad (d. 1620). These sought to establish dynastic and patrimonial forms of rule, which clashed directly with the traditional Zaydī political doctrine that only persons fulfilling strict qualifications could become imams. A convergence of interests arose between the Qāsimīs and the anti-madhhab jurists, and this was concretized when al-Shawkānī assumed the post of chief judge from 1795 until 1834. In return for state patronage, al-Shawkānī developed a Sunnī-oriented legal and ideological framework that legitimized Qāsimī rule. In this period the majority of the state’s subjects were Shāfiʿī Muslims, and these found favor under, and would identify with, al-Shawkānī’s Sunnī teachings.
In the twentieth century, the Zaydī state was reconstituted under the Ḥamīd al-Dīn imams (r. 1918–1962), after the defeat of the Ottomans in World War I. These imams perpetuated the forms of rule established by the Qāsimīs while maintaining the Hadawī madhhab as the official school of law. A process of legal codification, influenced by Ottoman reforms as well as traditional Imāmī “choices” (ikhtiyārāt), was initiated by the Ḥamīd al-Dīn 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.
Sunni Schools Of Jurisprudence
Islamic jurisprudence developed from about a century after the death of the Prophet Muḥammad in 632, with the result that the great majority of Muslims belong to one of a number of madhāhib (movements, schools of Islamic legal doctrine). The Sunnī madhāhib (sing. madhhab) emerged in the ninth and tenth centuries, giving form to the legal thought and legacy of particular authoritative figures or communities of the eighth and ninth centuries. This occurred after the schism between the followers of the Prophet’s Companions (ahl al-sunnah wa-l-jamāʿa, the people of tradition and community) and the followers of the Prophet’s son-in-law and cousin ʿAlī (shīʿat ʿAlī, in short Shīʿa, the partisans of ʿAlī) over the question of political succession after the Prophet’s death. This led to the emergence of the Shīʿī madhāhib, which is identified with various imams. For example, the Imāmī, or Twelver, school of law, which encompasses most Shi’ites, emerged after the Occultation of the twelfth imam in 941.
The implications of the difference between the Sunnī and Shi’ites over the question of succession extended to the development of schools of law, since the Sunnī did not develop a clerical hierarchy with clear authority to pronounce and interpret law, whereas the Shiites did. It became the role of master jurists (sing. mujtahid) to articulate the doctrine and scholarship of the madhāhib for both jurists and lay Muslims to follow. Sunnī judicial authority was built gradually by generations of scholars around multiple centers, both geographic and personal. Sunnī madhāhib were organized first around particular locales and then around prominent scholars. By the tenth and eleventh centuries, the Mālikī school (named after Mālik ibn Anas, d. 795), the Ḥanafī school (named after Abū Ḥanīfa, d. 767), the Shāfiʿī school (named after Muḥammad ibn Idrīs al-Shāfiʿī, d. 820), the Ḥanbalī school (named after Ahmad ibn Ḥanbal, d. 855), and the Ẓāhirī school (which followed Dāʾūd ibn Khalaf, d. 883) represented distinct schools of thought and jurisprudence. By the twelfth century, almost all jurists had aligned themselves with the doctrine of a particular school.
These schools also came to dominate in different geographic regions—the Mālikī in North Africa, the Ḥanafī in South and Central Asia, the Shāfiʿī in Egypt and Southeast Asia, and the Ḥanbalī in North and Central Arabia. Together, the Sunnī madhāhib encompass most Muslims today, and although they differ on matters of doctrine, method, and substantive law, they recognize each other’s validity and have continued to interact in legal debate and discourse.The Zaydī The Zaydī School
Development Of The Schools Of Law.
The sources of jurisprudence (uṣūl al-fiqh) for the Sunnī madhāhib are the Qurʾān, Sunnah (authoritative custom of the Prophet), ijmāʿ (consensusof the jurists), and qiyās (analogical reasoning). Despite the principle of mutual recognition, the Sunnī madhāhib differed in, and continued to be elaborated on the basis of, their approach to the authoritative sources of law, their methods of interpretation of those sources, their stance on the permissibility of applying human reasoning in jurisprudence, and their substantive rulings on specific local problems in law. Within each school there existed multiple ethnic, regional, intellectual, and scholarly variations, and a large part of the tradition of the madhāhib involves scholarly debates and disagreement over matters of substantive law and legal philosophy.
The Mālikī school of law, also known as the school of Medina or the school of the Hejaz, counts within its fold some of the first to follow the Prophet Muḥammad, such as his wife ‘Āʾishah and the second caliph ʿUmar ibn al-Khaṭṭāb. Accordingly, the school’s rules emphasize the customs and practices of the people of Medina and the early Companions of the Prophet. Mālik’s al-Muwaṭṭaʾ(‘The Well-Trodden Path’) is itself a compilation of traditions of the Prophet, the Companions, and the early Medinan Muslims, and his jurisprudence relied explicitly on these. This reliance on Sunnah, or custom, and not on authoritative ḥadīth until a later period, has also meant that Mālikī opinion on some matters reflected the practice of the time. Thus, on the personal status of women, it required a male guardian to consent to a woman’s marriage and gave male guardians the right to contract marriages without the woman’s consent. Mālikī influence spread from the Hejaz to Andalusia and North Africa because of contacts established during the ḥājj (pilgrimage to Mecca), and it replaced the Ẓāhirī school in these places under the patronage of the Umayyad dynasty. The Mālikī school is still dominant in these areas, as well as in many states of the Arabian Gulf.
The Ḥanafī school, originating in Kūfa (Iraq), combined an emphasis on human reasoning with a preference for the autonomy of the individual believer, which resulted in an approach to law that has widely been seen as the most liberal of the schools of law. The Ḥanafī madhhab was the first to develop rules on the performance of contracts. Its concepts of qiyās and istiḥsān (preference), which allowed pragmatic considerations to be a basis of jurisprudence, served to broaden the foundations on which Islamic law could rest. In this school, the autonomy of the Muslim individual extended to granting adult women the right to contract marriages for themselves (without the consent of a male guardian). The initial prominence of the Ḥanafī school can be traced to its elaboration by key actors in the ʿAbbāsid state who were students of Abū Ḥanīfa, in particular, by Abū Yūsuf (d. 798) and Muḥammad al-Shaybānī (d. 804). Later it became the dominant school in both the Mughal and Ottoman empires, and today it covers the broadest swath of the world’s Muslim regions, from China to the Levant.
Al-Shāfiʿī, one of Mālik’s students, embraced in his legal doctrines a synthesis between the traditionalism of the Mālikīs and the rationalism of the Ḥanafīs. His treatise Kitāb al-Umm (‘The Basic Book’) contains both the positive rules of his school and comparisons with the other schools of law, and it elaborates al-Shāfiʿī’s insistence upon the traditionalist approach in matters of legal theory (uṣūl al-fiqh). The Shāfiʿī madhhab became prominent in Egypt with the rise of the Ayyūbids and later the Mamlūks, is dominant in Southeast Asia, and has significant numbers of adherents in South Asia, Iran, the Levant, Egypt, Iraq, Yemen, and the Hejaz.
Aḥmad ibn Ḥanbal, a student of al-Shāfiʿī, compiled more than forty thousand traditions of the Prophet and his Companions in his Musnad. This traditionalism is reflected in the Ḥanbalī definition of legal theory as containing five sources of law, arranged in order of priority:
- The Qurʾān and sunnah;
- Fatwas of the Companions;
- Narrations by individual Companions;
- Traditions with weaker chains of transmission (isnād); and,
- Analogy (qiyās).
Taking a strong stance against the rationalist doctrine that the Qurʾān was created, rather than eternal, Ibn Ḥanbal defied the ʿAbbāsid caliph al-Maʾmūn despite torture and imprisonment during the miḥna (the inquisition of Baghdad, from 833 to 861). Always the smallest of the four Sunnī madhāhib, two followers of the Ḥanbalī school, Ibn Taymiyya (d. 1327) and Muḥammad ibn ʿAbd al-Wahhāb (d. 1792), have been credited with its revival in more recent times. The jurisprudence of the Wahhābiyya movement rejects later scholarship and opinion in favor of such sources as the Qurʾān, sunnah, and a vision of a pure Islam from the time of the Prophet. It has gained popularity as a form of global Islamic reformism, being associated in particular with Saudi Arabia. The Ḥanbalī madhhab is also dominant in Qatar and parts of Iraq, Palestine, and Syria.
Traditionalism And Rationalism
The Ḥanbalī and Shāfiʿī madhāhib have been known as traditionalist, and its members as “followers of ḥadīth” (ahl al-ḥadīth), in contrast with the Ḥanafīs, who have been called rationalists and “followers of opinion” (ahl al-raʾy). In the writings of Mālik@ ibn Anas, the practice of the Medinan Muslims represented the most authoritative tradition (sunnah). The Ẓāhirī madhhab rejected all human opinion and analogical reasoning as a valid tool in jurisprudence in favor of the “literal” (ẓāhir) meanings of revealed text. Both the most rationalist of the ahl al-raʾy (the Muʿtazilī movement of theologians) and the most literalist of the ahl al-ḥadīth (the Ẓāhirīs) eventually declined in prominence, the latter being no longer considered a madhhab, although their approaches to law continue to exert influence.
Al-Shāfiʿī himself played a major role in the development of the madhhab, his synthesis of the traditionalist and rationalist approaches to law providing both the systematic basis for the elaboration of rules and the theoretical foundations on which later scholars could build. Al-Shāfiʿī placed these sources in a hierarchy of four. He prioritized (1) the Qurʾān and (2) the sunnah of the Prophet when transmitted by an authoritative chain of narrators (isnād), defined (3) ijmāʿ as the consensus of scholars, and replaced raʾy (human opinion) with the more constrained (4) qiyās (human reasoning that drew analogies between existing rules and new situations for law). Such followers of al-Shāfiʿī as Abu al-Abbas ibn Surayj (d. 918) taught his texts and methods and trained generations of important scholars, who in turn further established the techniques and legitimacy of this madhhab throughout much of the Muslim world.
Political Implications Of The Madhāhib
Scholars affiliated with a madhhab were often supported by a private endowment (waqf). Such endowments funded colleges of higher Islamic learning (sing. madrasa) where scholars were trained in law and where debate was fostered. The madhāhib thus became institutionalized within regimes, supplying judges, jurists, and other legal officials who acted both for the state and independently. The madhāhib became recognized both as bodies of legal doctrine and interpretation and as communities of scholars of law and religion.
The relationship between scholars of Islamic law and the political power of the state has involved, at least since the ʿAbbāsid period, a delicate balancing act: it was the scholar (ʿulamāʾ, sing. ʿālim, henceforth, ulema) who interpreted the texts and made authoritative laws pronounced by the state, and it was adherence to and propagation of the law that made the state Islamic. The institutionalization of the legal schools and their affiliation with ruling regimes led to pressures to conform to earlier opinions and traditions within each school, but also to the development of legal doctrine to respond to new challenges. While later legal scholarship in each madhhab did tend to lean on commentaries on existing texts, which led to increasing doctrinal deference to established madhhab opinion (taqlīd), each madhhab also had mechanisms by which new legal ideas were authorized and legitimized. The Ḥanafī madhhab, for example, developed the concept of juristic preference (istihsān) beyond the four foundational sources of law.
Some Muslim imperial states favored particular madhāhib and extended their reach over localities that had previously been dominated by other schools. The ʿAbbāsids and Ottomans favored the Ḥanafī school—hence its large geographic spread. Efforts by Ḥanafī scholars to develop a jurisprudence with clear hierarchies among opinions and increasing standardization of doctrine lent their school to state administration and the extension of imperial power. The articulation of Ottoman or other imperial law over Muslim subjects of a different madhhab itself required new techniques and theories to reconcile multiple systems or prioritize the imperial madhhab. The needs of the state and calls for reform in Islamic law also occasioned new kinds of exchanges between the madhāhib. Thus, the methods of talfīq (“patching” rules from different madhāhib together) and takhayyur (“choosing” to apply rules from different madhāhib) came into common use. The Ottomans in 1876 codified portions of Ḥanafī law relating to contracts, procedures, and torts in the Mejelle (civil code), and in 1917 promulgated a family law based upon an amalgamation of doctrines of marriage, divorce, and personal status from various madhāhib.
Colonial And Contemporary Times
European colonialism and the development of modern states, with their near-monopoly on law-making and jurisdiction, have posed serious challenges to the juristic integrity of the madhāhib and their influence on legal practice. European colonial powers often sponsored and supported the translation of particular texts of Islamic law and extended their application to all areas under their jurisdiction, to the exclusion of other texts and interpretations, thus contributing to a sense of Islamic law as being rigid and unchanging. One example of this development was the nineteenth-century English translation and use of Al-Hidāya (divine guidance), by Burhān al-Dīn al-Farghānī al-Marghīnānī (d. 1196), as a textbook of Ḥanafī law in British India — a text that excised ambiguities from the original text and in many cases replaced local experts with the letter of the law as taken from the Anglo-Muḥammadan Hedaya.
The reorganization of Islamic legal institutions, including the institutions of learning and adjudication that housed scholars of Islamic law, and their incorporation into the colonial state had profound implications for the modern development of the madhhab system. Some, such as the Deoband school in India, which followed Ḥanafī law, have developed in competition and cooperation with the modernizing state, while others have seen their influence wane as the institutions and resources on which they relied became marginalized and replaced by state administration. The madhāhib have also faced the challenge of adapting doctrine to new issues that face increasingly mobile communities of Muslims, with the result that global issues of immigration, communications, and other problems have transformed the regional character of the madhhab.
While the madhāhib continue to find expression in the national legal systems of many Muslim states, their jurisdiction, with a few notable exceptions (such as Saudi Arabia), has been limited mostly to the domain of personal status, family law, and some areas of ritual practice. In addition, national laws and state legal institutions have exercised increasing amounts of control over legal interpretation, with non-Sharīʿa-trained judges, lawyers, and policymakers taking over the domain of the Sharīʿah scholar in the elaboration of law-, and the state legal academy encroaching on the domain of the Islamic scholar in the development of legal theory. In the contemporary period, national legal practice and state law, rather than the madhhab, have come to determine much of Muslim legal practice, and the influence of the madhāhib in each jurisdiction depends on the position of local ulema and Islamic institutions in the national system. Some ulema, such as those in Indonesia, have responded with calls for a new, national madhhab, while others rely less on the formal doctrine of a particular madhhab and more on the formulation of new rules based on the Qurʾān and sunnah alone.
Islamic movements that are global, rather than nation-state–focused, have drawn upon various madhāhib to appeal to Muslims worldwide, often characterizing local practices as “impure” Islam and offering an interpretation of Islam based strictly on the Qurʾān and sunnah. The Ḥanbalī madhhab in particular has been represented as a version of Islam whose strong adherence to the sunnah of the Prophet offers an antidote to both impure local Islamic traditions and the ills of modernization and Westernization. This variant of Ḥanbalī practice has been labeled, often pejoratively, as Wahhabism because of its perceived sponsorship by Saudi Arabia. Other movements, such as networks of ulema based in Indonesia who belong to the Shāfiʿī school but distance themselves from the doctrine of Indonesian state-based ulema, and some scholars based in the United States and other non-Muslim-majority states, offer a liberal interpretation of Islamic law aimed at solving problems faced by contemporary Muslims without the focus on the jurisprudence of a particular madhhab or region.
Islamic Schools Of Jurisprudence
311 – 011
Last Update: 04/2021
