continue from LAW
The beginnings of the schools of law in Islam go back to the late Umayyad period, or about the beginning of the second Islamic century, when Islamic legal thought started to develop out of the administrative and popular practice as shaped by the religious and ethical precepts of the Qur’an and the hadith. The role of the Qur’an at this very early stage can be taken for granted, but the role of hadith, or traditions of the Prophet, has been subject to dispute among scholars; some maintain that they became efficacious only after Muhammad ibn Idris al-Shafi’i (d. 820) insisted that they be. In the main centers of the early Islamic world, local scholars and private jurists developed their doctrines based on combinations of local practice, the Qur’an, and their knowledge of the traditions, using varying degrees of analogical reasoning in the interpretation and application of the holy texts. This geographical variation thus gave rise to varying doctrines. Shafi’i says, “Every capital of the Muslims is a seat of learning whose people follow the opinion of one of their countrymen in most of his teachings.” He goes on to mention the local authorities of the people of Mecca, Basra, Kufa, and Syria; elsewhere he speaks of the Iraqis and the Medinese. They all followed their own doctrines based on what Joseph Schacht calls their “living traditions” and the free exercise of personal opinion, in the absence of strict rules for deriving legal norms like those elaborated by Shafi’i At this stage the adage had not yet arisen that the true home of the sunnah (the model behavior of the Prophet) was Medina. Comparatively little is known about the doctrines of the Meccans, the Basrans, and the Syrians, although we possess some documentation of the famous representative of the latter, `Abd al-Rahman al-Awza`i (d. 773), particularly about the laws of warfare. Of the Medinese and the Kufan doctrines we know more, possibly because they later developed into the MOW and the Hanafi schools, respectively, which have continued to this day. Shafi’i, the founder of the school that carries his name, considered himself a member of the Medinese school, but he was uncompromising in taking the Medinese and other early law schools to task for not making the traditions of the Prophet supersede their customary practices. He insisted that nothing could override the practice of the Prophet even if that were attested by only a single tradition. His insistence was to have a lasting influence on the legal theory of all schools that accorded traditions a place second only to the Qur’an in formulating rules, and that identified sunnah, previously understood as the model practice of the community, with the traditions of the Prophet. The Medinese until that time appear to have authenticated only those traditions agreed upon by the people of Medina, and to have allowed sound reason and analogy to supersede traditions. The Iraqis, who were accused by their opponents of caring little for traditions, seem actually to have been more knowledgeable about the traditions than were the Medinese, whose attitude toward traditions they shared. Still, some Iraqis, particularly Muhammad ibn al-Hasan al-Shaybani (d. 8o4), seemed to anticipate Shafi`i in insisting on the decisive role of traditions.
This article will treat the development of the various Sunni schools, four of which are extant and three extinct. It will discuss their main doctrines, their major figures, their major books, and their provenance and present locations. Although the legal theories as developed by the various jurists may be regarded as more closely related to the topic of usul al filth (“roots of jurisprudence”; the bases through which practical legal rules are derived), some reference will be made to them here as well. [See Usul al-Filth.]
Hanafi School. One of the geographical centers of legal thought was Kufa in Iraq. The servant and companion of the Prophet, `Abd Allah ibn Mas`ud (d. 653), had been sent there by the caliph `Umar as a teacher and jurist. His students and theirs in turn achieved prominence as jurists; notable among them were `Alqa-mah al-Nakha’i, Masruq al-Hamadani, al-Qadi Shurayh, Ibrahim al-Nakha`i, `Amir al-Sha’bi, and Hammad ibn Abi Sulayman (d. 738), the teacher of AN Hanifah, the eponym of the school.
Abu Hanifah (699-767) is the agnomen of Nu’man ibn Thabit, of Persian extraction and a native of Kufa. He first studied scholastics and then concentrated on the jurisprudence of the Kufa school while gaining his living as a textile merchant. His training in scholastics coupled with his experience as a merchant imparted to him the unusual ability to use reason and logic in the application of rules to the practical questions of life, and to broaden those rules by the use of analogy (qiyas) and preference (istihsan). His liberal use of opinion in the formulation of analogy and preference caused his school to be dubbed the People of Opinion, as distinguished from the People of Traditions who depend on traditions in the formulation of rules-even though his school was not less knowledgeable about traditions. He was reported to have said, “This knowledge of ours is opinion; it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his opinion as we are entitled to our own.”
On the whole, the legal doctrines of Abu Hanifah evidence a liberality and a respect for personal freedom that are not that pronounced among other jurists. He was the first to formulate contract rules concerning contracts, which reflect his attachment to the principle of freedom of contract as exemplified in the contracts of salam and murabahah. The first allows the immediate payment of the price of goods for future delivery, although the contract of sale stipulates the immediate exchange of an object and its price; the second allows a merchant to sell to another what the former had bought at the original’ price plus a stipulated profit, provided that usury is not involved. In the field of personal law, he allows a free girl who had reached her majority to marry without the intercession of a marriage guardian, although later Hanafi doctrine restricted that right to a woman who had previously been married. Also contrary to all other jurists, including the dominant opinion in his own school, he would not interdict the spendthrift, contending that a person who has reached majority is independent and can do as he wishes with his property.
The legal thought of Abfl Hanifah was transmitted by his students, four of whom achieved fame-Abu Yusuf, Zufar ibn al-Hudhayl, Muhammad ibn al-Hasan alShaybani, and al-Hasan ibn Ziyad. In particular, Abu Yusuf and Muhammad were able to spread the influence of the school through their writings and their high positions in the `Abbasid state; they were often referred to as al-Sahiban (the Two Companions). Abu Yusuf, whose name was Ya’gflb ibn Ibrahim al-Ansari (731798), was appointed a judge in Baghdad and later became the first qadi al-qudat, or chief justice, with authority to appoint judges in the empire. On various occasions he differed with the opinions of his master, basing his decisions on traditions that may not have been available earlier. His book Kitab al-khardj is in the form of a treatise he prepared for Caliph Harun alRashid on taxation and the fiscal problems of the state.
To Muhammad ibn al-Hasan al-Shaybani (749-804) goes the credit for writing down the legal thought of the Hanafi school. He was trained in the jurisprudence of the Iraqi school as well as in that of Medina, for he traveled to Medina and studied under the scholar Malik ibn Anas, a version of whose book Al-muwatta’ was transmitted by him. Caliph al-Rashid appointed him qadi of Raqqah and later removed him, but he accompanied the caliph to Khurasan and died at Rayy. The books he compiled contain many of the detailed rules he extracted, particularly on the laws of inheritance, as well as the doctrine of his school. Often the dominant opinion of the school reflected his opinion on a disputed topic. His books have been classified into two categories: Zahir al-Riwayah, whose transmission from him has been authenticated, and al-Nawadir, books transmitted by less reliable authorities. The first category consists of the six books Al-mabsut, Al jami` al-kabir, Aljami` al-saghir, Al-siyar al-kabir, Al-siyar al-saghir, and Al-ziyadat. These books were collected in one volume known as Al-kafi by Abu al-Fadl Al-marwazi, better known as al-Hakim al-Shahid (d. 955). This collection was later annotated in a thirty-volume work, Al-mabsut, by the distinguished scholar Muhammad ibn Ahmad alSarakhsi (d. logo). This work was the basis of the Ottoman civil code of 1869, the Mecelle (Ar., Majallah), part of the legal reforms of the Tanzimat period. [See Mecelle.] The second category, al-Nawadir, consists of Amah Muhammad or Al-kaysaniyat reported by Shu’ayb al-Kaysani, Al-raqqiyat (cases submitted to al-Shaybani while he was a judge in Raqqah), Al-makharij ft al-hiyal on legal fictions and devices, and five other lesserknown collections.
Famous scholars of the next generation or two include Hilal al-Ra’y (d. 859); Ahmad ibn `Amr al-Khassaf (d. 874), author of Al-hiyal on legal fictions and devices, Al-waqf on religious foundations, and Adab al-qadi on procedure and evidence (commented on by Abfi Bakr
Ahmad ibn `All al-Jassas (d. 980), author of Ahkdm alQur’an; and Abfi Ja’far al-Tahawi (d. 933), author of Al jami` al-kabir ft al-shurut on legal formularies. Still later generations produced Abu al-Hasan al-Karkhi (d. 951); al-Sarakhsi, mentioned earlier; ‘Ali ibn Muhammad al-Bazdawi (d. 1089), author of Al-usul on jurisprudence; Abu Bakr al-Kasani (d. i191), author of Bada’i` al-sana’i` fi tartib al-shara’i`; and Burhan al-Din `All alMarghinani (d. 1196), author of the famous and authoritative Al-hiddyah, which has been the subject of many commentaries.
There followed a period of stagnation and imitation of earlier jurists in which existing works were abridged and annotated. An abridgement that received wide recognition was Al-mukhtasar by Ahmad ibn Muhammad alQudfiri (d. 1036). Also compiled were some fatwas, works presenting actual or theoretical questions and answers. Chief among these were Al fatdwd al-khdniyah by Qadikhan Hasan ibn Mansur (d. 1195), Al fatdwd al-khayriyah by Khayr al-Din al-Ramli (d. 1670), Alfatdwd al-Hindiyah-compiled in India by order of the Mughal emperor Awrangzib `Alamgir (d. 1707) and consisting of extracts from the authoritative works of the school-and Al -fatawa al-mahdiyah by the Egyptian mufti Muhammad al-`Abbasi al-Mahdi (d. 1897). In addition, a number of later Hanafi works achieved prominence in the Ottoman Empire, chief among which were Multaqd al-abhur by Ibrahim al-Halabi (d. 1549) and Radd al-muhtar by Muhammad Amin ibn `Abidin (d. 1836).
The Hanafi is the most widespread school in Islamic countries. The fact that it was the dominant school during the `Abbasid Caliphate, owing to the efforts of Abfi Yfisuf and other early Hanafis, gave it an advantage over the others. Moreover, it was the official school of the Ottoman Empire with its farflung dominions, and in 1869 its doctrines were enshrined in the Mecelle, or civil code, to be applied in the newly created secular (nizamiyah) courts, Hanafi law continued to be applied to Muslim personal-status matters. It is still the official school for issuing fatwds and for application to the personal-status matters of Sunni Muslims in the successor states of the Ottoman Empire, including Egypt, Syria, Lebanon, Iraq, Jordan, and Israel-Palestine. In Turkey, which is officially secular, Hanafi law governs religious observances. It continues to be the dominant school for application to personal-status matters and/or for religious observances among the Muslims of the Balkans, the Caucasus, Afghanistan, Pakistan, India, the Central Asian republics, and China. It is estimated that its adherents constitute more than one-third of the world’s Muslims.
Maliki School. This school developed in the Arabian peninsula, the original abode of Islam. It was originally referred to as the School of Hejaz or the School of Medina, and its doctrines are often attributed to such early Muslims as `Umar ibn al-Khattab, `Abd Allah ibn `Umar, Zayd ibn Thabit, `Abbas (the Prophet’s uncle), and `A’ishah (the Prophet’s wife). Of the early jurists of the school who achieved fame, mention may be made of Said ibn al-Musayyab, `Urwah ibn al-Zubayr, and Abu Bakr ibn `Abd al-Rahman. A later generation of jurists and traditionists were the teachers of Malik, the eponym of the school. These included Rabi`ah ibn `Abd alRahman (d. c.748-753), known as Rabi`ah al-Ra’y or Rabi`ah of Opinion (or of Good judgment, as suggested by Amin al-Khawli); Nafi` (d. 735 or 737), the freedman of Ibn `Umar; Ibn Shihab al-Zuhri (d. c.740-742); Ibn Hurmuz (d. 765); and Ja’far al-Sadiq (d. 765), the revered Shi’i imam and eponym of the Ja’fari Shi`i school of law.
Malik ibn Anas al-Asbahi, of Yemenite descent, was born in Medina in 713 and lived there until his death in 795, having left it only to perform the pilgrimage at Mecca. He thus epitomized the learning of the people of Medina. In his book Al-muwatta’, a collection of traditions from the Prophet, companions, and followers arranged according to the subjects of jurisprudence, he often would confirm a legal point by saying, “And this is the rule with us”, or “And this the rule agreed upon by consensus here.” It was said that Al-muwatta’ was transmitted in several versions, but only two have reached us: the version transmitted by the Hanafi alShaybani, mentioned earlier, and the version transmitted by Yahya al-Layth! (d. 848) and commented upon by al-Zarqani, al-Suyuti, and others. Fragments of a third version transmitted by the Tunisian ‘Ali ibn Ziyad (d. c.8oo) have also survived.
Malik was undoubtedly tradition-bound in his legal doctrines. He would often emphasize that he would not deviate from what he had received from his teachers or from the consensus of the scholars of Medina. Sometimes, however, he utilized a form of thinking similar to analogy, which has prompted Abu Zahrah to assert that Malik used ray (personal opinion) as well as giyas (analogy) in arriving at a rule. Actually, he himself said, “As for those matters that I did not receive from [my predecessors] I exercised my reasoning and reflection (ijtahadtu wa-nazartu) according to the course of those I have met . . . so that I would not deviate from the course of the people of Medina and their opinions (drd’ihim). If I did not hear anything specifically about a matter I attributed the opinion (ray) to me.” Amin alKhuli explains that the word ray at that time did not bear its later technical meaning of opinion vis-a-vis analogy, but meant rather “understanding” and “good judgment.” He also considers the attribution by some authors of the technical concepts of preference (istihsan) and public interest (masdlih mursalah) to Malik as rather anachronistic, because the science of usul al-fiqh was still in its infancy at that time.
In the field of law proper, the Maiki school, compared to the Hanafi school, evidences some conservative attitudes, particularly with regard to women. Perhaps this reflects the conservative milieu of Medina at the time of Malik. A woman can only be married with the consent and participation of her marriage guardian; in Hanafi law a guardian is necessary only for a virgin below the age of puberty, and she can repudiate the marriage upon attaining puberty. Also in Malik! law, the father or paternal grandfather has the right to give in marriage his virgin daughter or granddaughter without her consent and even, within some limits, against her wishes; in Hanafi law such susceptibility to compulsion (jabr) terminates at puberty.
Malik’s students included Muhammad ibn al-Hasan al-Shaybani, mentioned above, and Muhammad ibn Idris al-Shafi’i, the founder of the school that carries his name. His followers included Yahya al-Laythi, mentioned earlier as a transmitter of Malik’s Al-muwatta; the Tunisian Asad ibn al-Furat (d. 828); and `Abd alSalam al-Tanukhi, known as Sahnun from Kairouan (d. 854). Andalusian jurists who gained fame included Abu al-Walid al-Baji (d. 1081), Ibn Rushd (d. 1126), Ibn Rushd the grandson (d. 1198), and Muhammad ibn `Abd Allah ibn al-‘Arabi (d. 1148). Later generations of jurists included Abu al-Qasim ibn Juzayy (d. 1340), author of Al-qawanin al -fiqhiyah ft talkhis madhhab alMalikiyah; Sid! Khalil (d. 1365), author of the authoritative Al-mukhtasar; and Muhammad ibn `Abd Allah alKhirsh! (d. 1690), a rector of al-Azhar and author of a commentary on Khalil’s work. The major reference work for this school nowadays is Al-mudawwanah, compiled by Asad ibn al-Furat and later edited and arranged by Sahnun under the title of AZ-Mudawwanah al-kubrd. A concise work on law that has received some attention from Orientalists is Al-risdlah by Ibn Abi Zayd al-Qayrawani (d. 996). Maik jurists who attained fame in specific fields include the Egyptian Shihab al-Din alQarafi (d. 1285) and the Andalusian Abfi Ishaq alShatibi (d. 1388) in questions of jurisprudence, Ibn Farhun (d. 1396) in legal procedure, and Ahmad alWansharls! (d. 1508) and Muhammad Ahmad `Ulaysh (d. 1882) in fatawd works.
Since the birthplace of the Malik! school was Medina, it was natural that the school should spread in the Hejaz. Because of the contacts that the scholars of North Africa and Andalusia established with the scholars of Medina during the yearly pilgrimage, the Maliki school spread to those parts and displaced the Zahir! school in Andalusia where the latter, now extinct, had held sway. It continues to be the predominant school among the people of Morocco, Algeria, Tunisia, and Libya. It has also spread to upper Egypt and the Sudan as well as to Bahrain, the Emirates, and Kuwait. A number of other countries also have some Malik! adherents.
Shafi’i School. This school was not so much the product of a geographical area as it was the result of a synthesis conducted by a single jurist who was thoroughly familiar with the doctrines of the two other schools. That jurist was Muhammad ibn Idris ibn al’Abbas ibn `Uthman ibn Shafi` (hence the nisbah or attribution Shafi’i), a companion of the Prophet and a descendant of al-Muttalib, brother of the Prophet’s ancestor Hashim. Thus he was closely enough related to the Prophet’ to qualify for a stipend from the fifth of the spoils of war assigned to kinsmen, among others. Shafi`! was born in Gaza, Palestine, in 767 and died in Egypt in 820. When he was two years old his father died, so his mother took him to Mecca to be among his kin and to preserve his noble heritage. After memorizing the Qur’an and studying hadfth, he was sent to the desert where he accompanied the Hudhayl tribe, which was famous for its eloquent speech and poetic tradition. Later he traveled to Medina to study fiqh under Malik, whose reputation had spread far and wide. When Malik died, Shafi’i worked with the governor of Yemen and later was taken to Iraq on the orders of Caliph al-Rashid to answer charges that he was an `Alid sympathizer. His eloquent defense, added to a word in his favor from the Qadi Muhammad ibn al-Hasan al-Shaybanl, saved his life. He then applied himself to the study of Iraqi fiqh under al-Shaybanl and read the latter’s books. This opportunity to combine the knowledge of Iraqi fiqh with that of the Hejaz, added to the experience gained in his extensive travels, placed Shafi`! in a good position to formulate the theoretical bases for law in his famous Alrisalah. Al-risalah was written in Baghdad during a second visit to that city and refined when the author moved to Egypt in 814-815.
In the field of law Shafi’i continued to regard himself as a member of the school of Medina even though he had adopted the essential thesis of the traditionists that the traditions were superior in the formulation of laws to the customary doctrines of the earlier schools. Through vigorous polemics he tried to convert the adherents of the other schools to his doctrine, but they were not willing to abandon their own doctrines, although they accepted his legal theory, which is traditionist by inspiration. Those legal specialists of both schools who accepted Shafi’i’s thesis completely became his followers, and thus a new school arose with a doctrine formulated by an individual founder. The doctrine was first formulated in Iraq, but when Shafi`! moved to Egypt he retracted some of his earlier pronouncements; the resulting doctrine has come to be known as the Egyptian, or new, version of the school.
Shafi’i authored or dictated to his pupil al-Rabi ibn Sulayman (d. 884) the book known as Al-umm, a truly seminal work that defines not only the doctrine of Shafi’i but also many of the differences among the other schools. The seven-volume work deals with the various topics of law including transactions, religious observances, penal matters, and matters of personal status. It also includes such topics as the differences between `All and Ibn Mas’ud, the disagreement between Shafi`! and Malik, the refutation by al-Shaybani of some doctrines of Medina, the dispute between Abu Yfisuf and Ibn Ab! Layla, and the reply of Abfi Yfisuf to the work on siyar, or the law of war and peace, by al-Awza’i. Al-umm above all treats Shafi’i’s favorite topic, an attack on those who do not accept the entire body of traditions in the formulation of rules, and the invalidation of preference (istihsan) as a source of law. On the page margins of volume seven of Al-umm as printed in Cairo (1968) is another work by Shafi`! entitled Ikhtildf al-hadfth, also reported by al-Rabi.
Certain students of Shafi`! in Iraq founded their own schools; these were Ahmad ibn Hanbal, Dawud alZahiri, Abfi Thawr al-Baghdadi, and Abfi Ja’far ibn Jarlr al-Tabari. All but the school of Ibn Hanbal have become extinct. In Egypt Shafi’i’s students included Abfi Ya’qub al-Buwayti (d. 845), Isma’il al-Muzani (d. 877), the author of Al-mukhtasar on Shafi’i jurisprudence, and al-Rabi.
Some famous jurists who later propagated the Shafi`i school included Abu Ishaq Ibrahim ibn `All al-Shirazi (d. 1083), the author of Al-muhadhdhab and the scholar for whom the vizier Nizam al-hulk built the Nizamiyah school in Baghdad; the philosopher and jurist Abu Hamid al-Ghazali (d. 1111), who authored Al-mustasfd and Al-wajiz in jurisprudence and law; `Izz al-Din ibn `Abd al-Salam (d. 1261), the author of Qawacid alahkam fi masalih al-andm, a magnificent treatment of detailed principles and maxims of jurisprudence; Muhyi al-Din al-Nawawi (d. 1277), the author of the famous Minhaj al-tdlibin; Tag! al-Din al-Subki (d. 1355) the author of Fatdwa al-Subki; and the encyclopedic author Jalal al-Din al-Suyuti (d. 1505), who wrote Al-ashbah wa-al-nazd’ir on Shafi’i law.
Since Egypt was the home of the new school of Shafi`i, it was natural that it would strike deep roots there. It was the official school during the Ayyubid dynasty (1169-1252) and occupied a prime position during the Mamluk regime that followed. Only when the Ottomans occupied Egypt in 1517 did the Hanafi school displace it. Today, although the Hanafi school is officially enforced by the courts in matters of personal status, many Egyptians, particularly in the rural areas, follow the Shafi`i school in their religious observances. So do the great majority of Muslims in Palestine and Jordan, many adherents in Syria, Lebanon, Iraq, the Hejaz, Pakistan, India, and Indonesia, and the Sunni inhabitants of Iran and Yemen.
Hanbali School. This is also a personal school in that it represented in the main the legal opinions, sayings, and fatwas of a single person, Ahmad ibn Hanbal. Ibn Hanbal was born in Baghdad in 78o and died there in 855. He traveled widely to Syria, the Hejaz, and Yemen as well as to Kufa and Basra in Iraq in pursuit of the traditions collected in his monumental work Musnad alImam Ahmad in six volumes containing more than forty thousand items. This, added to the fact that he never authored a work on fiqh at a time when many others were writing on the subject, made many Muslim biographers consider him a traditionist rather than a jurist. His students, however, collected his legal opinions and fatwas, and the result was a body of juristic principles and laws worthy of being designated a school.
The attachment of this school to traditions is reflected in its departure from the other schools concerning the sources of law. According to Ibn Qayyim al-Jawziyah (d. 1350), a late Hanbali jurist, the sources are five: the texts of the Qur’an and sunnah; the fatwas of the com panions when not contradicted by the former sources; the sayings of single companions when in conformity with the Qur’an and sunnah; traditions that have a weak chain of transmission or lack a name of a transmitter in the chain; and finally, reasoning by analogy when absolutely necessary.
Ibn Hanbal became famous in Islamic history for his rigorous attachment to his faith and his principled stand against the doctrine of the createdness of the Qur’an during the Inquisition in Baghdad, even though he was beaten and imprisoned. This tenacious attachment to principle was later reflected in two followers who rejuvenated his school-Ibn Qayyim, mentioned above, and his teacher Tag! al-Din ibn Taymiyah (d. 1327), both of whom were imprisoned in the citadel of Damascus. It was also apparent in the career of Muhammad ibn `Abd al-Wahhab (d. 1792), the famous Hanbali reformer of Nejd.
Followers of this school include Muwaffaq al-Din ibn Qudamah (d. 1223), the author of the monumental twelve-volume Al-mughni as well as Al-`umdah; Taqi alDin ibn Taymiyah, author of the famous Fatawd and Al-siyasah al-shar’iyah; and Ibn Qayyim al-Jawzlyah, author of I’lam al-muwaqqi`in and other works. The rejuvenated school, which had not enjoyed many followers before Ibn Taymiyah, was further strengthened in the eighteenth century by Ibn `Abd al-Wahhab and his reform movement in Arabia, which aimed at taking Islam back to its simple and pristine beginnings, depending on the Qur’an and the sunnah instead of later scholars. The success of the Wahhabiyan and the return of the Saudi family to power early this century established the Hanbali school as the official school of Saudi Arabia. It is also the official school of Qatar and has many adherents in Palestine, Syria, Iraq, and elsewhere. [See Wahhabiyah; Saudi Arabia; and the biographies of Ibn Taymiyah and Ibn `Abd al-Wahhab.]
Extinct Sunni Schools. The most important of these were the schools of al-Awza’i, al-Zahiri, and al-Tabari. `Abd al-Rahman al-Awaza’i was born in Lebanon and died there in 773, his tomb being just south of Beirut. His school flourished in Syria and Spain for some time but was overwhelmed by the Shafi’i), and the Maliki schools in those two regions, respectively. What is known about it is derived from the writings of the other schools, particularly on the laws of war and peace, since we possess no independent works on its jurisprudence. Apparently it depended on traditions for its doctrines. Abu Sulayman Da’ud al-Zahiri (d. 883), a student of Shafi’i, founded his own school on the apparent and literal (zdhir) meanings of the Qur’an and the sunnah, rejecting many of the other sources accepted by the other schools. The school flourished in Spain but died out by the fourteenth century. One of its most celebrated adherents was Ibn Hazm (d. 1064), author of Al-ihkdm fi usul al-ahkam on jurisprudence and Al-muhalld on fiqh.
The historian and exegete Abu Ja’far Muhammad ibn Jarir al-Tabari (d. 922) was also a jurist who developed his own school, which lasted until the twelfth century. Among his books on jurisprudence was Ikhtildf alfuqahd’, a comparative study of the various schools of law.
Two developments this century have the potential to affect the structure of law schools in the Islamic world. One was the call for a new ijtihdd that would disregard, or at least not follow completely, the established schools. The motivating spirit for this call has been the progressive teachings of prominent Islamic leaders such as Shaykh Muhammad `Abduh (d. 1905) in Egypt and Sir Sayyid Ahmad Khan (d. 1898) and the Aligarh movement in India. Although the call was strong, the end results were very modest. [See Aligarh and the biographies of `Abduh and Ahmad Khan.] A proponent of this course of reform, the prominent Egyptian judge Muhammad Said al-`Ashmawi, has recently been the target for attacks by conservative elements. In Syria this call for a new ijtihdd has been vehemently attacked in several articles by prominent rectors of mosques and muftis in a book edited by Ahmad al-Bayanuni of Abfi Dharr Mosque in Aleppo. The prospects for this call in the present era of fundamentalist thinking are, therefore, not very promising, although the exercise of new ijtihdd has resulted in the decree of monogamy in Tunisia.
The other development, which has proven to be more successful, is crossing the boundaries of the various schools in an effort to find juristic opinions that support reform in many aspects of the law of personal status as it is applied in most Islamic countries. This process is called takhayyur, or choosing a juristic opinion, and was applied successfully in several reforms of the law. For instance, the Ottoman Law of Family Rights of 1917 derived several of its provisions from the dominant doctrines of Sunni schools other than the Hanafi, which was the official school. Later reforms in Egypt and the Sudan went even further by accepting any opinion of a jurist from one of the Sunni schools, or even a Shi`i opinion, without announcing its provenance. An example of the latter is the Egyptian Law of Testamentary Dispositions of 1946, which allowed a bequest to an heir within the “bequeathable third” without the consent of the other heirs, although the Sunni position has always been that there can be no bequest to an heir. Reformers even resorted to talfiq, or combining parts of the doctrines of different schools or jurists, into a new doctrine. Because the four orthodox Sunni schools are considered authentic and acceptable by all Sunnis provided one is adhered to consistently by an individual, a sentiment has arisen among modern Muslims that it is perfectly acceptable to effect reform by drawing on the provisions of all four.
BIBLIOGRAPHY
Abu Zarah, Muhammad. Ibn Hanbal. Cairo, n.d. Account of the life and jurisprudence of the founder of the Hanbali school.
Abu Zarah, Muhammad. Muhadardt fi tarikh al-madhahib al -fiqhiyah. Cairo, n.d. Comprehensive history of law schools in Islam.
Abu Zarah, Muhammad. Al-Shafi’i. Cairo, n.d. Account of the life and jurisprudence of the founder of the Shafi’i school.
Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Comprehensive treatment of the philosophy and methods of reform, and the actual achievements of reform, in various fields of law. Bayanuni, Ahmad ‘Izz al-Din al-. Al-Ijtihad wa-al-Mujtahidun. Aleppo, 1968.
Coulson, Noel J. A History of Islamic Law. Edinburgh, 1964. Highly readable survey of the genesis of Islamic law, doctrine and practice in the medieval period, and Islamic law in the modern world.
Al fatawa al-`alamgiriyah. Translated by Neil B. E. Baillie as A Digest of Moohummudan Law (1865). Reprint, Lahore, 1957. This is the work ordered by Sultan Awrangzib and based on the most famous Hanafi texts. It is also called Al fatawa al-hindiyah.
Fyzee, Asaf A. A. Outlines of Muhammadan Law. Oxford, 1949. Comparatively modern treatment of the application of Islamic law in the Indian Subcontinent.
Khuli, Amin al-. Malik: Tarjamah Muharrarah. 3 vols. Cairo, n.d. Marghinani, `All ibn Abi Bakr al-. Al-Hiddyah. Translated by Charles Hamilton as The Hedaya (1791). Reprint, Lahore, 1957. Convenient source for Hanafi law.
Nu`man ibn Muhammad, Abu Hanifah. Da`a’im al-Islam. Edited by Asaf A. A. Fyzee. Bombay, 1974. Major Isma’ili work on jurisprudence and law.
Schacht, Joseph. The Origins of Muhammadan jurisprudence. Oxford, 1950. Pioneering work on the early development of schools of law and doctrine.
Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Concise treatment of the historical development of schools and doctrine, and a systematic presentation of legal topics.
Shak’ah, Mustafa al-. AI-a’immah al-arba’ah. Cairo, 1979. Account of the life, work, and jurisprudence of the founders of the four orthodox schools of law.
Vesey-FitzGerald, Seymour Gonne. Muhammadan Law: An Abridgement. Oxford and London, 1931. An old classic about the actual application of Islamic law in the Indian Subcontinent and East Africa. Outlines the doctrines of the various schools.
FARHAT J. ZIADEH