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<p>1</p><p>The background and formation of the Four Schools of Islamic Law</p><p>By Eirini Kakoulidou</p><p>Islam’s Early Period & Pre ‐ Islamic Background</p><p>In Islamic faith, law and religion have developed a unique and very elementary association between them.</p><p>In the Western world, law and religious studies are known to research the role of religion in relation to the</p><p>State and its legal system. There is a vast contrast between the above and the focus of said studies in</p><p>Islam, where law and religion are very closely affiliated, and as a result one cannot follow or study one</p><p>domain in separation from the other1.</p><p>There are two main concepts that express the notion of divine law in Islam: those are fiqh and Shari’ah. In</p><p>its original sense, fiqh signifies a broad sense of understanding. It is also used in a more specific manner, in</p><p>order to express understanding towards the law. This meaning came up around the same time with the</p><p>first Islamic law texts, during the late 8th and early 9th centuries AD. Fiqh can be expressed through all of</p><p>the following examples: explaining the law in details; creating and institutionalising social norms; justifying</p><p>social norms in relation to holy texts; producing written texts, essays and books on the law. In contrast to</p><p>the above, Shari’ah is referred to the law of God and its divine quality. It indicates the practical application</p><p>of God’s or the Prophet’s will in relation to law, or the application of law that can be justified by holy texts.</p><p>Therefore, one of the main concepts to grasp is that practitioners of fiqh seek to find ways to express and</p><p>apply the principles the holy of law of Shari’ah2.</p><p>It is thought that the first three generations after Prophet Muhammad’s death (632 AD) are the most</p><p>important in relation to Islam’s cultural and religious development. This epoch is referred to as the First</p><p>Century of Islam, but it is also a time shrouded in obscurity due to the lack of historical evidence. During</p><p>that period, many important and distinguishing characteristics of Islamic law were founded, while the</p><p>newfound Islamic society established its own legal institutions. During most of the first century of Islam,</p><p>Islamic law did not exist by definition. As it were in the times of Prophet Muhammad, legislation and law</p><p>1</p><p>Schacht J. & Bosworth C.E The Legacy of Islam Oxford University Press 1979 p.392-393</p><p>2</p><p>The Oxford Encyclpaedia of the Modern Islamic World: Legal though and Jurisprudence (p.450).</p><p>2</p><p>were not inside the focus of religion, and therefore jurisprudence did not draw specific attention in the</p><p>Muslim world, as long as law technicalities and practices did not impose any religious or moral deviations3.</p><p>Islamic Jurisprudence did not start out with scientific intentions, i.e. to study the practice of courts within</p><p>the power of the established order. On the contrary, it served as an institution to protect the functioning</p><p>legal system’s practices from being attacked and analysed. The first Islamic law scholars were first and</p><p>foremost Muslim devotees and did not regard themselves as men of law. Their main ‐ and perhaps only ‐</p><p>interest was to explain and document the system of ritual law practice. Their interest in legislature and its</p><p>various relationships was a development that came later, taking most of its inspiration from the Abbasids</p><p>and their political agenda, as well as their approach to law in general. Therefore, one could argue that</p><p>those first scholars’ interest was mostly focused on religious ideals.</p><p>Two main tendencies were formed during the creation of jurisprudential processes in the late Umayyad</p><p>and early Abbasid period4. Firstly, in order to keep the Islamic doctrine consistent and coherent, lawful</p><p>procedures became more methodical; moreover, personal or arbitrary opinions (known as ra’y5) subsided</p><p>in order for a more analogical deduction (known as qiyas6) to arise. The second tendency was an increasing</p><p>importance of the practice of Sunnah or established doctrine7.</p><p>3</p><p>Schacht, J. An Introduction to Islamic Law. (Oxford: Oxford University Press, 1982)</p><p>4</p><p>Coulson, N, A History of Islamic Law. (Edinburgh: Edinburgh University Press, 1994) p. 36</p><p>5</p><p>Αl-ra’y -“Personal opinion”. Used by certain jurists opposed to the Traditionalists when interpreting religious law (fiqh).</p><p>Among the schools of law the Hanafites predominantly used it. (A Glossary of Islam, Dominique Sourdel & Janine</p><p>Sourdel-Thomine, Edinburg University Press, 2007).</p><p>6</p><p>Qivas - “Reasoning by analogy”. Used by jurists to resolve problems of religious law (fiqh) not clarified in the texts. It</p><p>was first developed by Al Shafi’i on the basis of his study of the effective cause (illa) of a decision that might lead to</p><p>other unforeseen decisions and used subsequently in the Shafi’i school of law. Later Al Ghazali (died 1111) sought to</p><p>justify the logical nature of such reasoning. (A Glossary of Islam by Dominique Sourdel & Janine Sourdel-Thomine,</p><p>Edinburg University Press, 2007).</p><p>7</p><p>Sunna or Sunnah- Established custom normative preceded, conduct and cumulative tradition, typically based on</p><p>Muhammad’s example. The actions and sayings of Muhammad are believed to complement the divinely revealed message</p><p>of Qur’an. J.P. Esposito, The Oxford Dictionary of Islam, 2003.</p><p>3</p><p>More specifically, during the early Abbasid period, those ancient schools of law were established mainly</p><p>because of their geographic position and importance. Those schools later transformed into a new type of</p><p>institution, which pledged allegiance to an individual person, a master in the form of a learned scholar.</p><p>The geographically based schools of law were situated in various central positions of the Islamic world and</p><p>each had its own religious scholar, who had formed a certain minimum agreement on their doctrines.</p><p>Towards the half of the 2nd hijra century, many people had taken to following the teachings of a</p><p>recognised spiritual leader and the main principles of his doctrine, while maintaining the right to diverge</p><p>from any specific point they did not agree with. This is what essentially led to the formation of groups of</p><p>people within the ancient schools of law. In the Kufa school of Iraq, there were followers of Abu Hanifa,</p><p>and in the Medina8 school there were followers of Malik9.</p><p>Around the middle of the third hijra century, the conversion of ancient law schools into “personal” schools</p><p>(schools based on certain scholars) took greater effect. These law schools did not continue the long</p><p>standing tradition of geographically‐based schools, but rather focused on the doctrine of a certain</p><p>religious figure along with his followers. This transformation was a subsequent outcome that was long ago</p><p>cradled in the ancient Islamic schools of law, but was surely accelerated by the influence of the Shafi’i</p><p>school10.</p><p>The aforementioned development, which was for the most part carried out by al Shafi’i, influenced and</p><p>shaped Islamic law’s future as a whole. But as law focused on the teachings of religious dogma, the</p><p>application of law became more rigid and based on doctrine. Independent research and analysis was</p><p>increasingly prohibited, while law with its various facets was dependent on traditions and the strict</p><p>adherence to God’s command.</p><p>8</p><p>Of the many schools of law, which flourished in the different provinces of Islam at the early times, those of Medina and</p><p>Kufa were the most important. The Oxford Encyclpaedia of the Modern Islamic World: Legal though</p><p>and Jurisprudence</p><p>(p.450).</p><p>9</p><p>Abu Hanifa and Malik were the founders of two out of four law schools of orthodox Sunni Islam.</p><p>10</p><p>Schacht, J. An Introduction to Islamic Law. (Oxford: Oxford University Press, 1982) p.58</p><p>4</p><p>The Evolution Period</p><p>According to professor Joseph Schacht in his work An Introduction to Islamic Law, there are two main</p><p>schools of Islamic law, which prevailed during the 8th and early 9th century: Ashab al‐ra’y, considered as the</p><p>rationalistic jurisprudents, and Ashab al‐hadith, which was an adversary school known as the Traditionists11.</p><p>Al Shafi’i, Joseph Schacht says, tried to steer a middle course between them, accepting the</p><p>Traditionists’ stress on hadith but rejecting the crudeness of their legal thought 12.</p><p>Schacht13 indicates that ultimately Shafi’i did not succeed in replacing the established schools of law with</p><p>his new type of doctrine, which was based on concepts held by the “Traditionists”. However, Shafi’i</p><p>succeeded in creating a new thesis on Islamic law, which was indeed the outcome of his efforts in</p><p>searching to find a logical and indisputable expression of Shari’ah, as well as its function in legal theory.</p><p>Well‐known jurisprudents like the Hanafis and the Malikis continued the aforementioned ancient law</p><p>schools of Kufa and Medina, without changing their established legal doctrine according to Shafi’i</p><p>ideologies. However, they did in the end adopt a type of legal theory that was extensively based on the</p><p>Traditionist inspiration, much like the Shafi’i did.</p><p>As J. Schacht indicates:</p><p>This 'classical' theory of Islamic law, or doctrine of the usul al‐fiqh, which was established during</p><p>the third century of the hijra (ninth century A.D.), was in many respects more elaborate than</p><p>Shafi’i s own theory, and differed from it in one essential aspect. Shafi’i, in order to be able to</p><p>follow the traditions from the Prophet without reservation, rejected the principle of the</p><p>consensus of the scholars, which embodied the living tradition of the ancient schools, and</p><p>restricted his own idea of consensus to the unanimous doctrine of the community at large. The</p><p>11</p><p>The Traditionst jurisprudents of the earlier ninth century, proposed that Islamic law be inferred from hadith, reports of</p><p>that the Prophet, his leading Companions, and the Follower had said or done, without significant resort to reason.</p><p>Contradictions among hadith reports they either resolved by means of isnad comparison or simply let stand, refusing to</p><p>define the law by their won preferences. Their adversaries the rationalistic jurisprudents (ashab al-ra’y) also used hadith,</p><p>but far less extensively and without significant use of the isnad comparison to sort out the sound from the unsound. In the</p><p>later ninth century, rationalistic jurisprudents, took up many of the forms formely peculiar to the traditionist jurisprudents,</p><p>especially formal dependence on hadith and isnad comparison to sort the sound from the unsound. Traditionist</p><p>jurisprudents in turn accepted the need for separate expertise in legal reasoning besides hadith criticism. Christopher</p><p>Melchert, Islamic Law and Society Vol. 8, No. 3, Hadith and Fiqh (2001), p. 383-406,</p><p>BRILL: http://www.jstor.org/stable/3399450.</p><p>12</p><p>Schacht Joseph, The Origins of Muhammadan Jurisprudence Oxford: Clarendon Press, 1950 p.56-57.</p><p>13</p><p>Schacht Joseph, An Introduction to Islamic Law Oxford University Press, 1982 p. 59.</p><p>5</p><p>classical theory returned to the concept of the consensus of the scholars, which it considered</p><p>infallible in the same way as the general consensus of the Muslims. But it had to take into account</p><p>the status, which Shafi’i had meanwhile won for the traditions from the Prophet, and it extended</p><p>the sanction of the consensus of the scholars to Shafi’i’s identification of the Sunna with the</p><p>contents of traditions from the Prophet 14.</p><p>In his book A History of Islamic Legal Theories, professor Wael B. Hallaq notes that Al Shafi’i was one of the</p><p>first few individuals to bring a new kind of analogical reasoning in order to approach the Qur’an and hadith.</p><p>This new understanding was different compared to the consensus (ijma) that fiqh scholars had</p><p>established; a consensus which had been the main way of interpreting the holy texts up until Shafi’i’s</p><p>work. This kind of legal reasoning became a core factor in the development of usul‐as‐fiqh and has been</p><p>widely referred to as “analogy” or qiyas. The latter provided the basis for laws to be established through</p><p>the process of analogical deduction, when the matters that needed legal consideration were not discussed</p><p>neither in the Qur’an or Prophet Muhammad’s Sunnah. Apart from the aforementioned quiyas, other</p><p>processes of legal decision making (or ijtihad) can be found in Islamic law, such as: istihsan, or juristic</p><p>“preference” and istislah, which is a method of reasoning based on public welfare when a problem is not</p><p>addressed in the sacred texts15.</p><p>Towards the end of the 9th century, the ideological clashes that Al Shafi’i’s presence brought in Islamic</p><p>legislature had subsided for the most part. The tradition of Sunnah, in other words the practice of the</p><p>Prophet Muhammad’s teachings in Islamic jurisprudence, had been introduced and solidified16.</p><p>As a result of the above, the classical theory has come to instruct that Islamic law as a whole is based on</p><p>four basic principles (“roots”), which are the following: The Qur’an, the Sunnah of Prophet Muhammad</p><p>which is inherited by the applicable traditions in law‐making decision, the consensus (or ijma) made up by</p><p>14</p><p>Ibid p. 60.</p><p>15</p><p>Hallaq Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Usul al-fiqh , Cambridge University</p><p>Press, 1997</p><p>16</p><p>Goulson N.J, The History of Islamic Law, Edinburg University Press, 2003 p.72 (chapter “Jurisprudence in Embryo, the</p><p>Early Schools of Law”)</p><p>6</p><p>scholars belonging in the orthodox Islamic community, and the method of analogical reasoning known as</p><p>quiyas17.</p><p>The Four Sunni Schools of Law: Madhabs</p><p>The foundations of Islamic law schools go way back to the end of the Umayyad period, or the beginning of</p><p>the second Islamic century. At that point in history, Islamic law had started to venture outside the borders</p><p>of institutional and popular law practice, the latter being shaped by religious concepts taken from the</p><p>sacred texts of the Qur’an and the hadith. The change in the political scenery that came with the</p><p>Umayyads’ fall from power and the emergence of the ‘Abbasids in 132 of the hijra (750 AD) also influenced</p><p>Islamic law as a whole. By that time, Islamic law had already developed its basic characteristics, while the</p><p>call of the Arab Muslim society for a suiting legal system had been met. At that stage, the early ‘Abbasids</p><p>did not only continue but also emphasised on the “Islamicising” trend in law, which had prevailed towards</p><p>the end of the later Umayyad period18.</p><p>The Hanafi School of Law19</p><p>Abu Hanifah (699‐767) is the alias of Nu’man ibn Thabit, a scholar of Persian descent and a Kufa native.</p><p>Hanifah studied scholastics while later he focused on deeply studying the jurisprudence of the Kufa School</p><p>of law. He earned his living by operating a business as a textile merchant. Hanifah is said to have always</p><p>used common sense and logic in the process of practical problem solving and philosophical ethics. He also</p><p>broadened his reasoning with the use of analogy (the aforementioned qiyas) and preference (known as</p><p>istihsan). Hanifah widely used the instrument of opinion in the process of legal thought analysis, together</p><p>with analogy and preference. This led to the characterisation of his school as “the people of opinion” (or</p><p>rationalists, ra’y), thus distinguishing his school from “the people of traditions”, the aforementioned</p><p>Traditionists. However, that does not imply that the Hanafi School was less meticulous concerning Islamic</p><p>traditions. Hanifah is also credited with the following words: “This knowledge of ours is opinion; it is the</p><p>best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his</p><p>17</p><p>Although the later schools of law shared the essentials of this classical theory, traces of the different doctrines of the</p><p>ancient schools have survived in some of them. (Joseph Schacht, An Introduction to Islamic Law, p.60)</p><p>18</p><p>The Oxford Encyclopaedia of the Modern Islamic World, Chapter “Legal Thought and Jurisprudence”, p.450</p><p>19</p><p>Ibid p.457</p><p>7</p><p>opinions as we are entitled to our own.” Although Abu Hanifa does not have a book on fiqh, scholars</p><p>mention a musnad of hadiths and traditions ascribed to him20</p><p>Abu Hanifah’s lifework as expressed in his legal thought displayed a deep belief in liberality and showed</p><p>reverence for personal freedom. This is something that cannot easily be found among other Islamic jurists</p><p>of his time. He was the first to establish laws in order to secure contracts, the latter being evidence of his</p><p>belief in the principle of protecting freedom, a fact demonstrated in contracts of salam and murabahah.</p><p>Salam, the first contract, secures the immediate payment of the goods which are to be delivered in the</p><p>future, even though sales contracts usually dictate the immediate payment of money in exchange for the</p><p>goods. Murabahah, the second type of contract, allows a trader to sell goods for their original agreed price</p><p>plus an extra predetermined profit as long as usury is not involved in the exchange process. As for laws on</p><p>personal freedom, Hanafi allowed unmarried women who had reached their adulthood to be able to marry</p><p>without the intervention of a marriage guardian. Nevertheless, later Hanafi doctrine restricted that right to</p><p>a woman who had previously been married. Despite the beliefs of the Kufa School (at which he belonged)</p><p>and the general legal ethos of his time, Hanafi did not sentence compulsive shoppers and spendthrifts, and</p><p>justified his action by stating that a person who has reached adulthood is free to spend their possessions</p><p>and/or property in any way that they wish21.</p><p>Abu Ηanafi’s doctrine was carried on by his students, four of which went on to become quite famous: Abu</p><p>Yusuf, Zufar ibn al Hudhayl, Muhammad ibn al Hasan al Shaybani and al Hasan ibn Ziyad.</p><p>Hanafi became the most prevailing Islamic school of law during the Abbasid Caliphate period, largely to</p><p>due to Abu Yusuf’s and other early Hanafis’ efforts, which gave Kufa an advantage compared to other</p><p>schools of law of the time. Hanafi was also the official law school of the Ottoman Empire. To this day,</p><p>Hanafi is the official school for the issuing of fatwas22 as well as for the application of “personal status”</p><p>matters of Sunni Muslims in countries that ensued the demise of the Ottoman Empire, i.e. Egypt, Syria,</p><p>Lebanon, Iraq, Jordan, Israel and Palestine. In Turkey, which is an officially secular state, it is the Hanafi law</p><p>20</p><p>Abu Zahra Muhammad, The four Imams- Their Lives, Works and Schools of Jurisprudence, Dar Al Takwa 2010 p.229</p><p>21</p><p>The Oxford Encyclopaedia of the Modern Islamic World p.457.</p><p>22</p><p>Fatwa: Authoritative legal opinion given by a mufti (legal scholar) in response to a question posed by an individual of a</p><p>court of law. J.P. Esposito, The Oxford Dictionary of Islam, 2003.</p><p>8</p><p>which determines religious holidays. Furthermore, it is still the most established school in regard to the</p><p>application of personal status matters and the religious holidays of Muslims living in the Balkan area, as</p><p>well as Caucasus, Afghanistan, Pakistan, India, the Republics of Central Asia and China. It is reported that</p><p>its followers make up more than an impressive 1/3 of the world’s Muslim population23.</p><p>The Maliki School of Law24</p><p>The Maliki School arose in the Arabian Peninsula, the original home of all Islamic thought. It was initially</p><p>named the School of Hejaz25 or alternately the School of Medina. The doctrines developed by the Maliki</p><p>School are historically related to prime Muslim thinkers like Umar ibn al Khattab, Abbas (Prophet</p><p>Muhammad’s uncle) and A’ishah (Prophet Muhammed’s wife). Later on in the school’s history, some of</p><p>the most learned jurists were the teachers of Malik, whose name became the eponym of the school.</p><p>Malik ibn Anas al Asbahi was a Yemen descendant, born in Medina in 713 AD. He lived there until his death</p><p>in 795, the only times he left the city being those that he went to Mecca as a pilgrim. Therefore, Malik</p><p>epitomised the learning of the people of Medina. The Al Muwatta is a book written by Malik on Muslim law,</p><p>which contains a compilation of traditions handed down from Prophet Muhammed, his companions and</p><p>followers arranged according to the subjects of jurisprudence. In this book, Malik mentions the general</p><p>foundations of fiqh, which are the Qur’an, its texts, its outward meanings and understood meanings, the</p><p>Sunnah, the consensus and then analogy26.</p><p>Malik ibn Anas was a man profoundly committed to tradition throughout the development of his legal</p><p>doctrine. He often stressed the fact that he would not stray from the path that his teachers and the</p><p>consensus of the great thinkers of Medina had handed down to him.</p><p>Nevertheless, Malik studied and put to use a form of deductive thought process which was similar to</p><p>analogy. In his own words, “as for those matters that I did not receive from (my predecessors) I exercised</p><p>23</p><p>The Oxford Encyclopaedia of the Modern Islamic World p. 450 Law: Legal Thought and Jurispudence / Juristic</p><p>Schools and Hermeneutical Traditions, p. 456: Sunni Schools of Law.</p><p>24</p><p>The Oxford Encyclopaedia of the Modern Islamic World. (Oxford: Oxford University Press, 2001), p..459.</p><p>25</p><p>Western coastal province of Saudi Arabia, home to the pilgrimage cities of Mekka and Medina. It was the first region to</p><p>become part of the Islamic world under Muhammad’s leadership. J.P. Esposito, The Oxford Dictionary of Islam.</p><p>26</p><p>Abu Zahra Muhammad, The four Imams- Their Lives, Works and Schools of Jurisprudence, Dar Al Takwa 2010 p.89</p><p>9</p><p>my reasoning and reflection according to the course of those I have met… so that I would not deviate</p><p>from the course of the people of Medina and their opinions. If I did not hear anything specifically about a</p><p>matter I attributed the opinion (ra’y) to me.”27</p><p>Compared to the Hanafi School, the Maliki School is considered to be somewhat more conservative in its</p><p>approach to law, and especially in relation to issues concerning the female gender. This is perhaps</p><p>something linked with the fact that at the time, Medina’s scholars had traditionally followed more</p><p>conservative views. According to Malik’s doctrine, women can only get married with the approval and</p><p>involvement of a marriage guardian. Moreover, Maliki law grants fathers and parental grandfathers the</p><p>right to approve a marriage of their daughters and granddaughters without their consent, and in some</p><p>cases, even against their will.</p><p>Hanafi law, on the other hand, limits this coercion (known as jabr) in relation</p><p>to marriage to the age of puberty.</p><p>Among Malik ibn Anas’s students was Muhammad ibn Idris al‐Shafi’i., who was the founder of the school</p><p>going under his name.</p><p>The Shafi’i School of Law28</p><p>As discussed above, the Shafi’i school was not exactly a school based on the geographic tradition of a</p><p>certain area or city; it was an outcome of a single jurist’s efforts, who was very much knowledgeable in the</p><p>doctrines of the other two schools and was able to synthesise new doctrine out of both.</p><p>Muhammad ibn Idris ibn al‐Abas ibn Uthman ibn Shafi’i was born in Gaza, Palestine in 767 AD and died in</p><p>Egypt in 820 AD. He utilised the opportunity to merge the knowledge of the Iraqi as well as the Hejaz fiqh,</p><p>which, along with his extensive traveling in the Islamic world, gave him a profound and deep</p><p>understanding of Islamic law. As a result of the above, Shafi’i gained the opportunity to formulate a new</p><p>theoretical basis for law, which is expressed in his famous work, Al‐risalah. This book was written in</p><p>Bagdad during Shafi’i’s second stay and was revised when the scholar moved to Egypt during the years</p><p>814‐815.</p><p>27</p><p>Professor Amin al-Khuli, a reformist scholar, explains that the word ra’y at that time did not bear its later technical</p><p>meaning of opinion vis-à-vis analogy, but meant rather “understanding” and “good judgment”. The Oxford</p><p>Encyclopaedia of the Modern Islamic World, p. 459</p><p>28</p><p>Oxford Encyclopaedia of the Modern Islamic World. p. 460</p><p>10</p><p>Shafi’i regarded himself as a representative of the law school of Medina, even though he had openly</p><p>accepted the Traditionists’ central views. (The Traditionist approach propagated that that Islamic tradition</p><p>was more important for the formulation of law compared to the doctrines developed by the various</p><p>schools, which emerged across the Islamic world). Shafi’i first developed his doctrine in Iraq, but when he</p><p>moved to Egypt he retreated back to some of his early views on law. Thus, this resulting doctrine came to</p><p>be known as the Egyptian doctrine, or new version of Shafi’i’s school. Shafi’i dictated Al‐umm to al‐Rabi ibn</p><p>Sulayman, a close student of his. It is a highly influential piece of work that did not only define Shafi’i’s own</p><p>doctrine, but also many of the elements and differences among other Islamic schools of law. This seven‐</p><p>volume book deals with many law topics, some of them being: transactions, religious holidays,</p><p>penal/criminal matters and personal status manners. The book also makes references to the differences in</p><p>Islamic thought on law, such as those between Ali and Ibn Masud, and those between Shafi’i and Malik. In</p><p>Al‐umm, Shafi’i delves into his most loved topic, which is attacking those who do not regard the traditions</p><p>of Islam as necessary in the formulation of jurisprudence. He also nullifies the importance of juristic</p><p>preference (known as istihsan29) as a valid form of law.</p><p>Among Shafi’i’s students was Ahmad ibn Hanbal, whose name was given to the school he founded.</p><p>Since Egypt was home of Shafi’i’s doctrine, the Shafi’i School has deep roots in this particular country. It</p><p>was the official school in the times of the Ayyubid dynasty (1169‐1252 AD) and maintained a prestigious</p><p>rank during the Mamluks, who succeeded the Ayyubids. The Shafi’i School was replaced by the Hanafi</p><p>School much later, when the Ottoman Empire conquered Egypt in 1517 AD. Nowadays, the Hanafi School</p><p>constitutes the official law practiced in courts as far as personal status matters go. However, many</p><p>Egyptians (especially of the rural areas of the country) follow the doctrine of the Shafi’i school for their</p><p>religious observances. The same happens in many other areas of the Muslim world, i.e. in the greater parts</p><p>of Palestine and Jordan, and has many followers in Syria, Iraq, the Hejaz, India, Pakistan, Indonesia, and the</p><p>Sunni parts of Iran and Yemen30.</p><p>29</p><p>Istihsan –“Search for the best solution.” - Refers particularly to the methods used by scholars of school of law of Hanafi</p><p>to resolve practical problems posed by the application of the law (Shari’ah). A Glossary of Islam by Dominique Sourdel</p><p>& Janine Sourdel-Thomine, Edinburg University Press, 2007).</p><p>30</p><p>The Oxford Encyclopaedia of the Modern Islamic World. p. 460</p><p>11</p><p>The Hanbali School of Law31</p><p>Hanbali is another school based on the heritage of a scholar, since it embodied the doctrine, opinions and</p><p>fatwas of another important Islamic lawmaker: Ahmad ibn Hanbal. Hanbal was born in Baghdad in 780 AD</p><p>and died in the same city in 855. He traveled extensively the Islamic world, in countries like Syria, Yemen</p><p>and the Hejaz, as well as Kufa and Basra cities in Iraq. He did so in order to gather as many Islamic</p><p>traditions concerning all aspects of law and produce his seminal work, Musnad al‐Imam Ahmad. It is a</p><p>colossal piece of work, which extends over six volumes and contains more than forty thousand items. The</p><p>Musnad al‐Imam Ahmad, together with the fact that Hanbali did not write any books on fiqh like many</p><p>other of the scholars of his time, leads many Muslim historians to think that he should be regarded a</p><p>traditionalist rather than a jurist. Nevertheless, his students assembled his opinions on legal matters as</p><p>well as fatwas (juristic rulings) he produced, which led to a set of principles and laws important enough to</p><p>create a school out of this great thinker’s work on law.</p><p>The dedication of the Hanbali School to the traditions of Islam can also be found in its separation from the</p><p>views of other schools regarding the sources of law. According to Ibn Qayyim al‐Jawziyah (d. 1350), a late</p><p>Hanbali legist, there are five main sources of law32: the holy texts of the Qur’an and Sunnah, the fatwas of</p><p>scholars as long as they do not contradict the scriptures, the sayings and opinions of jurists that fall in line</p><p>with the holy texts, traditions without a specific lineage of transmission and ownership, and finally the</p><p>reasoning which is based on analogy if there are no other means available.</p><p>Ibn Hanbal is famous throughout the annals of Islamic history for being a steadfast believer in all things</p><p>Muslim in his personal life. He maintained a solid stance, which passionately defended the idea of an</p><p>uncreated and eternal Qur’an. His denial towards the doctrine of the “createdness” of the Qur’an led to his</p><p>imprisonment during the Inquisition in Baghdad, involving hard conditions and beatings. Hanbal’s strict</p><p>adherence to doctrine is mirrored in the voices of two followers who brought his school back to life: one is</p><p>Ibn Qayyim (another great Sunni Islamic jurist) and the great Hanbali school teacher, Tawi al‐Din ibn</p><p>Taymiyah (d. 1327). Echoes of Hanbali’s personal views can also be found in the career of Muhammad ibn</p><p>Abd al‐Wahhab (d. 1792), who was a famous Hanbali reformer of Nejd.</p><p>31</p><p>Ibid. p. 461</p><p>32</p><p>Ibn Qayyim al-Jawziyya, Ibn Taymiyya, and Islamic Theology, J. E. Lowry and D. Stewart. p.201-222</p><p>12</p><p>Hanbal’s school includes many followers, an important one being Muwaffaq al‐Din ibn Qudamah (d. 1223),</p><p>the author of the twelve‐volume masterpiece Al‐Mughni, as well as author of the Al‐umdah. The revived</p><p>Hanbali School, which lacked popularity among Muslim followers before the abovementioned Ibn</p><p>Tayamiyah, gained even more strength during the 18th century AD. Ibn Abd al‐Wahhab</p><p>was head of a</p><p>reformist movement in Arabia, which sought to drive Islam back to its original, pristine foundations. Those</p><p>foundations were impeccably loyal to the Qur’an and the Sunnah, instead of the thought of later Islamic</p><p>law scholars.</p><p>The success of the Wahhabis33 and the return of the famous Saudi Arabian family in the early 20th century</p><p>established the Hanbali School as the official law school of Saudi Arabia. Hanbali is also the official law</p><p>school of Qatar, and has many followers in Syria, Iraq, Palestine and other places of the Muslim world.</p><p>The two approaches of studying usul al fiqh</p><p>Ensuing the establishment of the madhabs (schools of Muslim law), the ulema (the educated class of</p><p>Muslim legal scholars) of various schools assumed two separate stances to the study of usul al‐fiqh. One is</p><p>theoretical, while the other one is based on deductive methods. The main differences of the two</p><p>approaches have to do for the most part with their basic orientation: the first one is ultimately based on</p><p>the strict adherence to theoretical doctrines and traditions, while the second is more pragmatic because it</p><p>sees theory as something formulated according to the legal issues at hand and the way they need to be</p><p>tackled. The gap between those two approaches is more akin to their whole design and approach and has</p><p>less to do with legal thought in its entirety. The first approach remains loyal to the principles and their</p><p>application in law, while the second approach aims to combine traditions and principles in order to meet a</p><p>specific case’s needs. The theoretical approach to studying usul al fiqh is followed by the Shafi’i School. On</p><p>the other hand, the deductive approach is connected with the Hanafi School. The theoretical approach is</p><p>33</p><p>Wahhabis - Eighteenth century reformist/revivalist movement for socio-moral reconstruction of society. Founded by</p><p>Muhammad ibn Abd al-Wahhab, a Hanbali scholar in Arabia. Proclaimed tawhid (uniqueness and unity of God) as its</p><p>primary doctrine. Wahhabism began in response to the perceived moral decline and political weakness of the Muslim</p><p>community in Arabia. It proposed a return to an idealized Islamic pas through reassertion or monotheism and reliance on</p><p>Qur’an and hadith, rejection medieval interpretations of Islam and jurisprudence. Emphasized education and knowledge</p><p>as weapons in dealing with nonbelievers. Known for its sometimes violent opposition to the popular cult of saints,</p><p>idolatry, and shrine and tromp visitation, as well as the sacking of Shii shrines in Najaf and Karbala in 1802. Formed an</p><p>alliance with Muhammad ibn Saud in 1747, which served at the basis for the consolidation of the present-day kingdom of</p><p>Saudi Arabia. (Esposito John, The Oxford Dictionary of Islam).</p><p>13</p><p>known as usul al‐Shafi'iyyah or tariqah al‐Mutakallimin; the deductive approach is known as usul al‐</p><p>Hanafiyyah, or tariqah al‐fuqaha'34.</p><p>Relationship between the Four Schools of Law</p><p>The traditional schools of law discussed throughout this essay have generally shared relationships of</p><p>mutual toleration and respect, despite acts of religious fanaticism of the past. These acts mainly took place</p><p>in the high Middle Ages and were carried out by rulers and members of the public alike. However, the</p><p>attitude of mutual tolerance dates back to the time of the ancient schools of law reviewed above. These</p><p>schools had managed to accept their geographical differences of doctrine as natural. As early as the</p><p>second century of the hijra, there was a saying that scholarly religious disagreement between Muslim</p><p>communities (known as ikhtilaf) was a sign of spiritual expression. However, this saying came to be known</p><p>as a saying of Prophet Muhammad much later. This mutual tolerance between the Islamic schools of law</p><p>did by no means come easy, and went through many trials and tribulations, as each school aimed to</p><p>maintain its own doctrine unchanged and loyal to its geographical tradition. Shafi’i’s innovative input is</p><p>what enabled the opportunity for debate on matters of principle between the schools of law and as a</p><p>result, the various schools managed to reach some common ground. Moreover, the consensus, which is</p><p>generally considered as the unifying principle of Islam, has proved to be very successful in smoothing out</p><p>the differences of doctrine and opinion that different law schools have had, without needing to eliminate</p><p>those said differences.</p><p>The four schools discussed throughout this essay have proved to be equally respectful to ijma (the</p><p>consensus of the Muslim community). All of the schools have the objective to apply and instill the will of</p><p>Allah in all of their legal work, by staying close to the holy texts of the Qur’an and Prophet Muhammad’s</p><p>Sunnah. Their individual interpretations of the holy texts and principles can all be considered equally valid</p><p>and important, and their methods of reasoning can be seen in the same light. Ultimately, all of those</p><p>schools belong in the orthodox Islamic thought. Any follower of Islam has the right to choose and join the</p><p>school of their choice, and also change their adherence to a specific school according to their wish and</p><p>without hindrances. With a simple transaction and for any reason be it personal convenience or any other</p><p>motive, Muslim followers have the right to depart from the one they follow normally, i.e. because of their</p><p>34</p><p>M. H. Kamali, Principles of Islamic Jurisprudence International Islamic University, Malaysia, March, 1991 p. 17-19</p><p>(Chapter: Two approaches to the study of Usul al-fiqh)</p><p>14</p><p>geographical status and place of residence. This procedure is known as taklid. Nevertheless, is an individual</p><p>wishes to carry out the above procedure; they are to follow the principle of their school of choice in every</p><p>way until the procedure is complete. Muslim individuals are not supposed to combine different doctrines</p><p>from various schools, because this would be considered as talfik, the act of religious unlawfulness. Finally,</p><p>it should be noted that Modernists within Islamic culture have disregarded this last rule.</p><p>GEOGRAPHICAL UNITS</p><p>REFERENCES & BIBLIOGRAPHY</p><p> The Oxford Encyclopaedia of the Modern Islamic World. (Oxford: Oxford University Press, 2001).</p><p> Coulson, N. A History of Islamic Law. (Edinburgh: Edinburgh University Press, 1994)</p><p>15</p><p> Schacht, J. An Introduction to Islamic Law. (Oxford: Oxford University Press, 1982)</p><p> Schacht, J. The Origins of Muhammadan Jurisprudence. (Oxford: Clarendon Press, 1950) published in</p><p>paperback in 1979.</p><p> Wael B. Hallaq, An Introduction to Islamic Law, Cambridge University Press 2009.</p><p> Wael B. Hallaq, The Origins and Evolution of Islamic Law. Cambridge University Press, third printing,</p><p>2007.</p><p> Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al‐fiqh , Cambridge</p><p>University Press, 1997.</p><p> Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice. The New</p><p>Edinburgh Islamic Surveys, Edinburgh University Press 2004.</p><p> M. H. Kamali, Principles of Islamic Jurisprudence (International Islamic University, Malaysia, 1991)</p><p> Muhammad Abu Zahra, The four Imams‐ Their Lives, Works and Schools of Jurisprudence, (Dar Al</p><p>Takwa 2010)</p><p> Hossein Esmaeili, The Nature and development of Law in Islam and the rule of Law challenge in the</p><p>Middle East and the Muslim World (Connecticut Journal of International Law Vol. 26:329)</p><p> Joseph Schacht and C.E Boswsorth, The Legacy of Islam, Oxford University Press 1979 (second</p><p>edition).</p><p> Dominique Sourdel & Janine Sourdel‐Thomine, A Glossary of Islam, (Edinburg University Press, 2007)</p><p> John Esposito, The Oxford Dictionary of Islam (Oxford University Press, 2003</p><p> Seyyed Hossein Nasr Islam: Religion, History and Civilization, Harper Collins e‐books, 2003</p><p> Malise Ruthven with Azim Nanji, Historical Atlas of the Islamic World, Oxford University Press 2004.</p><p> John L. Esposito, What everyone needs to know about Islam, Oxford University Press 2002.</p>