Schools of Muslim Law

SCHOOLS OF MUSLIM LAW The political rift between followers of the principle of election and those favouring descent from the Prophet, generated some other differences between Sunni and Shia approaches to jurisprudence. For example, the Shia view the sayings of Fatima, the daughter of the Prophet, and his cousin Ali (Fatima's husband), the fourth khalifa of the Islam, as equally authoritative as the Sunna of the Prophet. The Sunni do not. There are other differences involving the structure of Islam, such as existence of an organized Shia clergy, which does not exist in the Sunni tradition. Among them the Shia allow the imam much wider latitude in government than the Sunni ever could in light of the principles of consensus and equality. The most important of all differences between Sunni and Shia relates to the interpretation of the Qur'an. The Sunni look more to the letter of the Qur'an; the Shia look more to its spirit. Thus the Shia religious hierarchy plays a determining role in interpreting the Qur'an. This role reinforces their spiritual and temporal influence in Shia society. SUNNI AND SHIA SECTS The two largest Muslim subgroups are the Sunni and the Shia. Sunni Muslims make up the largest percentage of Muslims overall. Until then the Prophet was the universally accepted head of the Islamic commonwealth. After his death, some thought the position should be given to person who people trust and thus an elected leader would suffice. Others thought that the spiritual leadership of the Prophet was more important and that this quality would have passed on through his blood. A gathering of some Muslims at Saqifah gave their allegiance to Abu Bakr, Muhammad’s father-in-law, as the first Caliph. Shia Muslims believe that the Prophet had appointed his son-in-law Ali ibn Abi Talib as his successor. Caliph was more of an administrative head whose job was to enforce the Shariat while the Imam was the religious head of the Shia community. These two sects differed on the political and legal issues too. Many Muslims, however, do not like to label themselves as from any of the denominations as they believe that the Quran bans the formation of sects within Islam, and therefore classify themselves as simply “Muslims”.

THE SUNNI SCHOOLS The full name of the Sunni branch is Ahl al-Sunna wa al-Jama’ah. Abu Bakr, the Prophet’s close friend and father-in-law, was the first Caliph. Sunnis initially believed that the position of Caliph should be democratically chosen, but after the first four Rightly Guided Calliphs, the position turned into a hereditary dynastic rule. After the fall of the Ottoman Empire in 1923, there has never been another

Caliph. According to sources, present estimates indicate that approximately 85% of the world’s Muslims are Sunni and approximately 15% are Shia. There were various interpretations by the jurists and thus many schools came up. Sunnis recognize four madhhabs (legal traditions): Maliki, Shafei, Hanafi, and Hanbali as of now. These schools are similar and differ mostly on the details. Although a number of other jurists also became popular during their times, only the above four are now recognised by the vast majority of Sunni Muslims. These four great jurists and theologians tried to systemise the Islamic law into a comprehensive rational system which covered all possible legal situations. The four prominent schools of Islamic law are named after their founders and are called the Hanafiyya, the Malikiyya, the Shafiyya,and the Hanbaliyya schools of religious law. Most Muslims regard these four schools as equally valid interpretations of the religious law of Islam. These schools are in good agreement on all essential aspects of the religion of Islam. They all acknowledge the authority of the Holy Qur’an and the Traditions as the ultimate source of the Islamic law. Only in areas and situations where these two sources are silent, do the four schools use their independent reasoning in which they may differ with each other. THE HANIFI SCHOOL Founded by Imam Abu Hanifa, Hanafi is considered to be the most liberal school. Abu Hanifa is often referred to as the Great Imam. It is predominant among Sunni Muslims in northern Egypt, the Indian subcontinent, Iraq, Turkey and in many western countries. It is the largest of the four schools; with a following of 45% of the Muslims world-wide. The most prominent propagators of this school were the Ottoman Empire and the Mughal Empire. Abu Hanifa tried to formulate law through the analogical deductions from the texts of the Quran. The school recognises only those traditions that have been severely tested for originality and passed. It is believed that Hanifa relied upon 18 traditions only. Qiyas and Ijma were given due importance. The doctrine of Istihsan (juristic equity) was used by this school for the first time. Some of the famous books of the school include Fatwai Alamgiri, al-Hidyaya and Radd-Al -Makhtar. THE MALIKI SCHOOL The Maliki School derives from the work of Imam Malik-ibn-Anas and practiced in North Africa and West Africa. It is the second-largest of the four schools, followed by approximately 25% of Muslims. It differs from the three other schools of law in the sources it uses for derivation of rulings. All four schools use the Quran as primary source, followed by the Sunna of the Prophet Muhammad, Ijma

(consensus of the People) and Qiyas (analogical deductions). The Maliki School uses the practice of the people of Medina (amal ahl al-medina) as a source too. This source, as per Malik, sometimes supersedes hadith, because the practice of the people of Medina was considered “living Sunna,” as the Prophet migrated there, lived there and died there, and so did most of his companions. They followed more of Ijma than Qiyas. Their approach to law was even more practical than that of Hanafis. They introduced the principle of Istidlal or public welfare. A married woman’s property, under this school, remains under her husband’s control. Imam Malik had a comparatively small collection of ahadith that was well authenticated and highly regarded, known as Al-Muwatta. Malik is said to have explained the title as follows: “I showed my book to seventy jurists of Medina, and every single one of them approved me for it, so I named it ‘The Approved’.” THE SHAFEI SCHOOL Shafei was founded by Imam Muhammad ibn Idris ‘Ash Shafei’, a pupil of Malikibn-Anas and was related to the Prophet. It is most prevalent in Egypt, Somalia and Singapore and is the school of thought officially followed by the government of Brunei Darussalam and Malaysia. It is followed by approximately 15% of Muslims world-wide. The Shafei School of thought stipulates authority to four sources of jurisprudence: the Quran, the Sunna of the Prophet, Ijmah and Qiyas as well as the opinions of the Prophet’s companions. The school widened the scope of Qiyas. The school emphasizes on the proper istinbaat (derivation of laws) through the rigorous application of legal principles as opposed to speculation or conjecture. Ash-Shafei argued that Sunna contradicting the Quran were unacceptable, claiming that Sunna should only be used to explain the Quran. He claimed that if a practice is widely accepted throughout the Muslim community, it cannot be in contradiction of Sunna. But a woman cannot be a free agent in her marriage even if she is an adult. Ash Shafei incorporated the principles of law or Usul in his book Kitab-ul-umm. He is also known as the founder of ‘usul’. His “Risala” contains principles of jurisprudence or legal theory. THE HANBALI SCHOOL Hanbal is considered to be the most conservative of the four schools. The school was started by a student of Imam Ahmad, Ahmad bin Hanbal, who had studied under Ash Shafei also. He is often referred to as the ‘Traditionalist’. It is more predominant in the Arabian Peninsula. It is also referred to as the Textualist school. Hanbali rigidly followed the traditions of the Prophet and thus, ignored the other sources like Qiyas and Ijma. There was no scope for private judgements and

human reasoning. Although the Hanbali School was small, it did produce many noted scholars. Musnad-ul-Imam Hanbal was a collection of 50 thousand or so traditions by Ibn Hanbal. The doctrine of Usul was perfected by this school.

THE SHIA SCHOOLS The Arabic word Shia literally translates into the word ‘supporters’ or ‘followers’. Shia Muslims believe that Ali was appointed by Muhammad to be the direct successor and leader of the Muslim community and thus regard him as the first Imam. Initially, they were known as Shiat-ul-Ali (the supporters of Ali). The majority of Shia Muslims believe in a total of twelve Imams. Imam is the final interpreter and he is the leader by divine right and not by election. The twelfth Imam is believed to have vanished and is awaited to appear at a pre-determined time. Shia Muslims believe that Mohammad’s family were the best source of knowledge about the Quran, Islam, and the best-qualified teachers of Islam after Mohammad, and the most trusted carriers and protectors of Muhammad’s Sunna. Thus, Shias reject the rule of the initial three Sunni Caliphs the same way as the Sunnis reject the Imamate of the Shia Imams. Shia scholars have a larger authority than Sunni scholars and have greater room for interpretation. THE TWELVE IMAMS: Name Title Year of birth and death 1) Imam 'Alí ibn Abu Talib al-Murtadha (The Satisfied One) 600–661 2) Imam Hasan ibn Ali al-Mujtabah (The Chosen One) 625–669 3) Imam Husayn ibn Ali Sayyid al-Shuhudah (The Lord of the Martyrs) 626– 680 4) Imam 'Alí ibn Husayn Zayn al-Ábidín (The Jewel of the Believers) 658–713 5) Imam Muhammad al-Báqir (The Spreader of Knowledge) 676–743 6) Imam Ja'far al-Sádiq (The Truthful One) 703–765 7) Imam Músa al-Kazim (The Patient One) 745–799 8) Imam 'Alí al-Ridhá (The Accepted One) 765–818 9) Imam Muhammad al-Taqí (The Pious One) 810–835 10) Imam 'Alí al-Naqí (The Pure One) 827–868 11) Imam Hasan al-Askarí (The One with an Army) 846–874 12) Imam Muhammad alMahdí (The Rightly-Guided One) 868

Shia Islam is the second largest denomination of Islam. There were subsequent divisions in the sect due to difference on doctrinal points rather on issues of interpretation. THE ITNA ASHARIA SCHOOLS It is also called Imamia and majority of Shias belong to this school. The followers believe that from Ali onwards, there have been 12 Imams who possessed spiritual powers. They believe that the 12th Imam who disappeared as a child will re-appear in the future. They believe in Muta marriage-temporary marriage. They are further split into Akbari and the Usuli who follow the traditions very rigidly and believe in the interpretations to work out practical problems respectively. They can be found in Iran, Iraq, Lebnon and India. Shari-ul-Islam is one of their authoritative texts. THE ISMAILIA SCHOOL The Ismailis and Twelvers both accept the same initial Imams from the descendants of Muhammad and share much of their early history. However, a dispute arose on the succession of the Sixth Imam, Jafar as-Sadiq. The Ismailis became those who accepted Jafar’s eldest son Ismail as the next Imam, whereas the Twelvers accepted a younger son, Musa al-Kazim. They believe that there have been only seven Imams with Ismail being the seventh one. They believe that from Ismail onwards there has been a series of concealed Imams. They can be found in the Central Asia, Syria. In India they consist of two major groups: a) Khojas who were iinitially Hindus; and b) Bohras. Daimul-islam is an authoritative text on the doctrines of this school. THE ZYADIS SCHOOL Zaiddiyahs separated from the Twelver and Ismaili sects of Shia Islam over a disagreement as to who the fifth Imam was. Zayd was the son of the fourth Imam. This school incorporated some Sunni principles in it too. They can be found in Yemen. They are not present in India. APPLICATION OF THE LAW OF THE SCHOOL/ CHANGE OF THE SCHOOL OR SECT If the Muslim personal law has to be applied in a court of law, first the sect of the parties will be looked into as each sect has its own book of authority that may not be binding on other sects. The second step is to ascertain the sub-sect of the parties so that specific law will be applied to them. If the parties belong to different schools, the defendant’s school is applied. In matrimonial matters, if the parties belong to different school or sects, the laws of that school/sect will be applied under which the marriage was performed and

solemnized. In India, it will generally be presumed that the parties are Hanafis unless they prove otherwise and the burden of proof lies on the person who claims that they don’t belong to this school. The reason for this presumption is that the majority of the Muslims in India are Sunnis and in particular, Hanafis. Every Muslim who has attained the age of puberty can change his sect or school to one of his liking. From the instance of adopting another sect or school, the laws of the new sect or school will apply to the person.

It is suggested to go through the class notes also.