Message for Muslims

An introduction to the four Sunni judicial school

As there was such a large source of legal material on which to draw upon it should not be surprising that different juridical “schools” emerged. Such a school was called a madhhab. In the beginning a variety of opinions prevailed because each man sought his own path and some followed not so much the Qur’an or sunna but their own opinion (rai). These different “schools” struggled to gain recognition and disappeared one by one until, in the seventh century of the Hijra, it was agreed to recognize only four, viz, those founded by the famous Imams, or leaders, Abu Hanifa, Ibn Malik, Ash-Shafi, and Ibn Hanbal.

These Imams, though manifesting certain individual peculiarities, were all considered to be equally orthodox. They were reckoned to be mujtahids of the first class. The highest rank that a Muslim theologian could reach was that of a mujtahid. It is the conventional term for a learned Muslim who exerts the faculties of his mind to the utmost for the purpose of forming an opinion in questions of law respecting a doubtful case. The interest and importance attaching to these four men and their legal opinions will be apparent from the fact that it is the orthodox view, at any rate, that after them there has been no mujtahid.

 

1. Imam Abu Hanifa

Imam Abu Hanifa, who enjoys the greatest popularity was born at Basra in 699 but spent the greater part of his life at Kufa, dying at Baghdad. Unlike Malik, who lived at Medina, with its memories of Muhammad, Abu Hanifa made little use of the traditions as the basis of his judgments. At Kufa, Islam came into contact with peoples of other races, and for them the one law was the Quran revealed to Muhammad;

> “and We have sent down to thee the Book explaining all things” (An-Nahl 16:89).

> “Nothing have we omitted from the Book” (Al-An’am 6:38)

If, then, a verse could not be found bearing on any given question, analogical deduction was resorted to, and this was done to such an extent that Abu Hanifa came to be known as a master in the art of qiyas. An example of the reasoning of the Hanafi jurists may be given. The Quran says: “It is He Who hath created for you all things that are on earth” (Al Baqarrah 2:29). This is taken as to being a gift which annuls all other rights of property. The “you” refers to Muslims. The “earth” is classified under three heads; 1) land which never had an owner and has been abandoned; 2) land which had an owner and has been abandoned; 3) the person and property of the infidels. Arising out of the last interpretation, these jurists deduce the lawfulness of slavery, piracy, and constant war against the unbelievers.

Abu Hanifa admitted very few traditions as authoritative for his system, though his followers, the chief among them being his pupils Muhammad and Abu Yusuf, used them much more freely, and in consequence greatly modified his system.

 

2. Imam Malik

Malik bin Anas was born at Medina in 711, and died there at the age of eighty-two. He was a working judge and so was in touch with the daily life of the inhabitants of Medina. He opposed too free use of qiyas (reason by analogy) and so imbibed the spirit of the place that his system is founded on the “customs of Medina.” That city, indeed, was known as daru’s-sunna the abode of the customs (of Muhammad). Malik made it his business to arrange and systematize such traditions as were current in the city of the Prophet, and to form out of them and the sunna a system of jurisprudence embracing the whole range of life. He called his treatise Muwatta, or the ‘Beaten Path.’ It draws largely on the legal maxims and opinions delivered by the Companions, The traditions were his delight. It is said that his one fear, as death approached, was lest he should have exercised at any time his private judgement (ra’i), in delivering a legal opinion.

 

3. Imam Ash-Shafi’i

Imam Ash-Shafi’i was related to the founder of the Abbasid dynasty and was born in Palestine in 776. He was widely travelled and following his studies he set up a school in Baghdad. He was unrivalled for his knowledge of the Quran, the sunna, and the sayings of the Companions. He carefully studied the systems of Abu Hanifa and Ibn Malik, and subsequently developed an eclectic system of his own. As he was a Qurraishi (same tribe as Muhammad) and brought up in Mecca, he was able to mediate between the jurists who differed about the bases of the formulating law. Some said that law should be based on the Quran and tradition only, others said that untrustworthy traditions should be left out and a set of rules should be made using logic.

Ash-Shafi’i, therefore with his lawyer ‘s mind made an attempt to reconcile, through the principle of ijma’ (unanimous consent), the acute differences between the followers of those two systems. He and his followers succeeded in determining with greater exactitude the particular prescribed rules for the use of qiyas (reason by analogy), which had been open to abuse.

 

4. Imam Ibn Hanbal

Imam Ibn Hanbal was a Arab born at Baghdad In 780. He submitted to imprisonment and punishment rather than agree with some other theologians of his time that the Quran was created. He preferred to use even a weak tradition rather than agreement and analogy. His followers founded a school of law after his death. He was the author of a Musnad, or collection of traditions.

For a long time men only thought of him as an extreme traditionalist, so that when his followers sought recognition for his method as a separate juridical school they encountered opposition and it was only after many a bitter struggle that this fourth “school” was accorded a place. The system as such was a deliberate and uncompromising return to traditionalism, and manifested a combative tendency. It adhered to the letter of the Quran and the hadith. Of the four schools, it manifests the most hostility to Sufism.

Such an attitude is to be explained by the fact that during Ibn Hanbal’s day, under the Khalifa Al Ma’mun, the followers of Abu Hanifa were in favour. Ibn Hanbal thought they were carrying the principle of analogical deduction to dangerous lengths in their endeavour to please the Khalifa. Consequently, fearing that the faith would be undermined, he entirely discarded the principle of qiyas. On the other hand, he saw that the system set up by Malik, founded on the sunna of Medina was inadequate to meet the needs of a rapidly expanding empire; but in seeking to establish his system on what he held to be sure ground of the traditions he did not succeed in improving matters.

 

Characteristic features of the four judicial schools

The general tendencies of the four judicial schools can be illustrated by a few examples of their rulings.

 

Judicial views on prayer

All four schools are in agreement on the ritual and liturgical use of the Quran, while Ash-Shafi‘i expressly lays it down that the words used in prayer must be recited in Arabic. Abu Hanifa, on the other hand, allows an exception to be made in the case of the foreigner who is incapable of pronouncing the Arabic.

 

Judicial views on translating the Quran

Then th ere is the allied question: “Is it lawful to teach the Quran to non- Muslims? An occupation that inevitably entails the translation of the text. The more liberal Abu Hanifa sees no difficulty in the proposition. He relies on the hadith, and here finds himself in apparent agreement with the ruling of the Hanbal School. Ash-Shafi contents himself with setting forth the arguments for and against, but Malik is entirely opposed to the idea.

The latter is just as uncompromising over the question of a complete translation of the Quran. Ash-Shafi’i, as before, hesitates to make a definite pronouncement. The Hanafis and Hanbalis approve of interlinear versions, such as at present exist in Persian, Urdu, English, etc, or of a version in which the Quranic text in Arabic faces the translation, as is the case with the English translation made by Maulana Muhammad Ali, printed in England.

 

Judicial views on prisoners of war

Their judgments in other matters reveal the fact that they are by no means always in agreement. For instance, in regard to the important question as to what should be done to prisoners taken in a time of jihad, we find that Abu Hanifa rules that they should be condemned to death or slavery. Ash-Shaf’ii on the other hand, allows them to be freed on payment of ransom, or even without it.

 

Judicial views on apostates

They differ, too, in their attitude to a Muslim apostate; Abu Hanifa holds that before being condemned such must be invited to repent. But the Maliki School do not require this; both this school and the Shafi’i condemn the apostate, irrespective of sex, to death. Abu Hanifa rules that the punishment for a woman apostate shall be not death, but solitary confinement.

 

Judicial subtlety

Their disagreement shows itself also in matters where we should least expect it, e. g., in what was considered the legal duration of gestation. Compared with the other three Imams, Malik held the most extreme views, allowing the period to last as long as four years, thus permitting the absurd conclusion that a child born three years after its father’s death can claim its inheritance in law. Such reasoning inevitably led to casuistry, encouraging the ‘ulama to exercise their subtlety in the most fantastic fashion. All sorts of imaginary cases are discussed by them with the utmost seriousness; as for instance, whether marriages with the jinn, involve consequences affecting the law of inheritance. In this way a whole tradition of hypocritical laxity regarding the Sunni law has been introduced, permitting believers to respect the letter in order the more easily to act contrary to its spirit.

 

Judicial views and the Sunni Muslim

However, these four Imams are recognized to be of one mind on all the fundamental doctrines of Islam, and their “agreement” is enough to establish a general law which is binding on all Sunnis, that vast body of the orthodox to which the majority of the Muslims belong. It is the belief of the Sunnis, though in this the Shi’as differ, that there has been no first rank mujtahid (enlightened theological doctor) since the time of the four Imams.

Such phrases as the following occur in the works of Muslim authors’ “We are shut up to following the four Imams. “It is of the grace of God, that we are shut up to these four Imams. God approves of this, and into this matter proofs and explanations do not enter.”

Every Muslim is expected to belong to one of the four orthodox madhahib schools, and to conduct himself in accordance with the fiqh of that school. He is not necessarily bound to it for life; should he desire, he may pass to another school. In the same family for instance, father and son may belong to different schools.

 

The position today

It has been agreed among the orthodox that from the fourth century A. H., “the door of ijtihad (a legal ruling by an enlightened theological doctor) is closed.” All that can be done is to interpret the ijima’ (common consent) of the four Imams. But to this idea that all judgments are shut up to the ijma’ of a bygone age some modern Muslims take the strongest exception. It is to them a crime committed against Islam by the ’ulama in the name of religion.

The school with the most adherents is the Hanafi school and they dominate in Turkey, Central Asia and North India. The second most populous school is the Shafi’ School whose influence is found in Southern Arabia, East Africa, South India and the Indian Archipelago, Palestine, the Hijaz and Lower Egypt. Ash-Shafi’i's tomb is in Cairo, and in Al Azhar, the celebrated mosque of that city, his teaching is regularly expounded. The Maliki School adherents are found in the West, in the Sudan and all Northern Africa (with the exception of Lower Egypt), and in districts of Arabia. The adherents of the system of Ibn Hanbal cherish his memory chiefly because of the importance he attached to tradition. For this reason the revolt of the Wahhabis, the puritans of Islam, in the eighteenth century brought about a revival of Ibn Hanbal‘s system.

 

The principles of Shi’a judical law

The Twelver Shi’a Muslims recognise the Quran, and the sunna of Muhammad and their twelve Imams as the bases of their schools of law. Only their own books of Shi’a traditions which go back through ‘Ali or their own Imams are accepted by them. Their Imams, being divinely-guided and, have infallible authority. The high level of violence in their history makes martyrdom and murder an inescapable part of the sunna.

Most Shi’a writings of the early centuries concerned the doctrine of the infallible Imams. Although the Persian Empire had been defeated by the Arab invaders, and the Persians had become Muslims, their resistance to the Arabs continued by developing a different doctrine.

The law school does teach that after the disappearance of the twelfth Imam, reason would be recognised as the third basis for law, and that the agreement of the majority of the leading lawyers would be considered as the fourth principle.

Shi’ites recognize a living ’Mudjtahid’, the leading jurist of Iran, who is regarded as the spokesman of the Hidden Imam. A Mudjtahid seems to have the teaching authority that strictly belongs to the divinely-guided Hidden Imam, and is therefore able to make decisions based on the Quran and sunna, through analogy and consensus. Such a position is not allowed by the Sunnis as all Shi’a authority must go back to the Imams, also the law schools must be attributed to them.

A school of law was founded by Dja’far al-Sadiq, a descendent of ‘Ali, contemporary of Abu-Hanifa. Dja’far al-Sadiq was an Arab, the sixth of the twelve Imams, and he made a special study of tradition. As the sixth Imam, he could be acceptable to both the Severners and the Twelvers.

Some smaller sects have their own jurisprudence. The basis seems to be the Quran, Muhammad’s example and the agreement of their community.

Shi’ites reject the idea of co-ordinate schools of law, and say that there can only be one truth, and there can be no variation in it, even in details. Possibly because of the violence and persecution which has existed among the different sects, some of their books are guarded from outsides. As the Mudjtahid of Iran has the power to issue new commands, Shi’ite law does not appear to be finalized.

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