Madhhab

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MADHHAB

MADHHAB . For lack of a better term, "legal school" is the most acceptable translation of madhhab, and it is preferable to both "sect" and "rite," terms which have been used in earlier works. A legal school implies a body of doctrine taught by a leader, or imam, and followed by the members of that school. The imam must be a leading mujtahid, one who is capable of exercising independent judgment. In his teaching, the imam must apply methods and principles which are peculiar to his own school independent of others. A madhhab must also have followers who assist their leader in the elaboration and dissimination of his teachings. A madhhab does not imply, however, a definite organization, a formal teaching, or an official status, nor is there a strict uniformity of doctrine within each madhhab. The membership of the present-day madhhab s is ascertainable on the basis of both individual confession and a loosely defined association of a country or a group to a particular madhhab. Legal school is a fitting description of madhhab simply because law is the main area in which the schools have widely disagreed. Their differences on the principles of the faith, at least among the Sunnī schools, are negligible. But disagreement on subsidiary matters (furūʿ ) extends to almost every subject.

The Earliest Schools

The first major split occurred between the Sunnī and the Shīʿī schools of law barely three decades after the death of the Prophet, about 660 ce. The secession of the Shīʿah from the main body of the Muslims, the Sunnīs, took place on political grounds, owing mainly to their differences on the nature and devolution of political authority. The Sunnīs accepted as legitimate the leadership of the four "Rightly Guided" caliphs, the Khulafāʾ Rashidun. But the Shīʿah claimed that ʿAlī, the fourth caliph and the cousin and son-in-law of the Prophet, had a superior claim to leadership over any of his three predecessors, hence their name, the Shīʿah ("party") of ʿAlī.

The bitter controversies which arose in the early period of Islam led to the formation of numerous groupings. The range of contested issues must have been extremely diverse: some five hundred schools are said to have disappeared at or about the beginning of the third Muslim century (ninth century ce). But even then the schools had not yet settled down to the number they are now. The real formation of Islamic law starts, at the hands of individual jurists, in the latter part of the first century ah (seventh century ce). This period is followed in the early second/eighth century by the emergence of two geographical centers of juristic activity in the Hejaz and Iraq. Each of these was further divided into two centers: Mecca and Medina in the Hejaz, and Basra and Kufa in Iraq. Of these four centers, usually referred to as the ancient schools of law, Medina and Kufa were the most important. With their further development in the latter half of the second century, geographical schools gave way to personal schools, named after an individual master whom the members of the school followed.

The ancient schools of law adopted two different approaches to jurisprudence. The jurists of Mecca and Medina, cities where the Prophet had lived and Islam had its origin and early development, laid emphasis on tradition as their standard for legal decisions. They thus acquired the name ahl al-ḥadīth, or "partisans of tradition." Being away from the Hejaz and culturally more advanced, the Iraqi schools, on the other hand, resorted more readily to personal opinion (raʾy ), which is why they acquired the name ahl al-raʾy, or "partisans of opinion." This group had a tendency to imagine hypothetical cases in order to determine their legal solutions. They had a flair for scholasticism and technical subtlety. The ahl al-ḥadīth, on the other hand, were averse to abstract speculation; they were more pragmatic and concerned themselves with concrete cases. Abū Ḥanīfah was the leading figure of the Iraqi school, whereas Mālik, and after him al-Shāfīʿī, led the Hejazi school of legal thought.

The ḤanafĪyah

The founder of the Ḥanafī school, Abū Ḥanīfah Nuʿmān ibn Thābit (d. 767), was born in Kufa, where he studied jurisprudence with Ibrāhīm al-Nakhaʿī and Ḥammād ibn Abī Sulaymān. He delivered lectures to a small circle of students who later compiled and elaborated his teaching. Qiyās, or analogical reasoning, which became one of the four sources of law, receives the greatest support from Abū Ḥanīfah. Because of this, and his extensive use of raʾy, Abū Ḥanīfah was criticized by the traditionists for emphasizing speculative opinion at the cost of the ḥadīth. Abū Ḥanīfah has left no work except a small volume on dogmatics, Al-fiqh al-akbar (The greater understanding). His teachings were documented and compiled mainly by two of his disciples, Abū Yūsuf and al-Shaybānī. The Ḥanafī school was favored by the ruling Abbasid dynasty. Abū Yūsuf, who became the chief justice of the caliph Hārūn al-Rashīd (r. 786–809), composed, at Hārūn's request, a treatise on fiscal and public law, the Kitāb al-kharāj.

Muḥammad ibn Ḥasan al-Shaybānī, a disciple of both Abū Ḥanīfah and Abū Yūsuf, compiled the corpus juris of the Ḥanafī school. Six of his juristic works, collectively called the Ẓāhir al-rawāyah, or works devoted to principal matters, became the basis of many future works on jurisprudence. All of the six works were later compiled in one volume entitled Al-kāfī (The concise), by al-Marwazī, better known as al-Ḥākim al-Shahid (d. 965). This was subsequently annotated by Shams al-Din al-Sarakhsi in thirty volumes, entitled Al-mabsūṭt (The comprehensive). Ḥanafī law is the most humanitarian of all the schools concerning the treatment of non-Muslims and war captives, and its penal law is considered to be more lenient.

The Ḥanafī yah has the largest following of all the schools, owing to its official adoption by the Ottoman Turks in the early sixteenth century. It is now predominant in Turkey, Syria, Jordan, Lebanon, Pakistan, Afghanistan, and among the Muslims of India, and its adherents constitute about one-third of the Muslims of the world.

The MĀlikĪyah

The Mālikī school was founded by Mālik ibn Anas al-Aṣbaḥī (d. 795), who spent his entire life in Medina except for a brief pilgrimage to Mecca. He served as an official jurisconsult (muftī), which may explain why he broke away from the casuistic practices of his predecessors and attempted to formulate the principles underlying the tradition, to which he devoted his famous work, Al-muwaṭṭaʾ (The leveled path). Mālik is distinguished by the fact that he added another source of law to those known to other schools, namely the practice of the Medinese (ʿamal ahl Madīnah ). Since the Medinese followed each generation immediately preceding them, the process would have gone back to the generation that was in contact with the teachings and actions of the Prophet. In Mālik's opinion, the practice of the Medinese thus constitutes basic legal evidence. This pragmatic feature of Mālik's doctrine has been retained to the present in the legal practice (ʿamal) of the Maghreb, which takes more notice than other schools of the prevailing conditions and customs. (Islamic law in general does not recognize custom as a source of law although it may validly operate in a subsidiary capacity.) The major reference book of the Mālikī school is Al-mudawwanah (The enactment), compiled by Asad al-Furāt, and later edited and arranged by Saḥnūn, who published it under the name Al-mudawwanah al-kubrā (The greater enactment). The Mālikī school is currently predominant in Morocco, Algeria, Tunisia, Upper Egypt, the Sudan, Bahrain, and Kuwait.

The ShĀfiʿĪyah

The third major surviving school is called the Shāfiʿīyah, after its founder, Muḥammad ibn Idrīs al-Shāfiʿi (d. 819). A pupil of Mālik, he formulated the classical theory of jurisprudence in the form that it has largely retained ever since. This theory teaches that Islamic law is based on four basic principles, or roots, of jurisprudence (uṣūl al-fiqh ): the word of God in the Qurʾān, the divinely inspired conduct or sunnah of the Prophet, consensus of opinion (ijmāʿ ), and reasoning by analogy (qiyās ). Al-Shāfiʿi studied the works of his predecessors and found that despite the existence of traditions from the Prophet, the early jurists occasionally preferred the opinion of the companions, or ignored traditions when they were contrary to local practice. Insisting on the overriding authority of tradition, al-Shāfiʿi said that authentic traditions must always be accepted. Whereas Abū Ḥanīfah and Mālik felt free to set aside a tradition when it conflicted with the Qurʾān, for al-Shāfiʿi a tradition could not be invalidated on this ground: he took it for granted that the Qurʾān and tradition did not contradict each other.

Al-Shāfiʿi also differed with both Abū Ḥanīfah and Mālik on the meaning of ijmāʿ. To al-Shāfiʿi's predecessors ijmāʿ meant the consensus of the scholars, but al-Shāfiʿi denied the existence of any such consensus. There could only be one valid consensus—that of the entire Muslim community. He thus restricted the scope of ijmāʿ to obligatory duties, such as the daily prayer, on which such a consensus could be said to exist. But the legal theory which prevailed after al-Shāfiʿi returned to the concept of the consensus of the scholars, when it considers infallible in the same way as the general consensus of the Muslims.

Al-Shāfiʿi essentially restricted the sources of law to the Qurʾān and the sunnah. Should there be no provision in these sources for a particular case, then the solution must be found through the application of analogy, which basically entails extending the logic of the Qurʾān and the sunnah. Any expression of opinion which is not related to these sources is arbitrary and excessive. Al-Shāfiʿi thus restricted the scope of ijtihād (independent reasoning) by subjecting it to the requirements of strict analogical reasoning; hence he considers ijtihād and qiyās synonymous.

Al-Shāfiʿi has left many works, of which the most important on jurisprudence are the Risālah (Letter) and the seven-volume Kitāb al-umm (The book of essentials). The Shāfiʿi school is now prevalent in Lower Egypt, southern Arabia, East Africa, Indonesia, and Malaysia and has many followers in Palestine, Jordan, and Syria.

The ḤanĀbilah

Even al-Shāfiʿi's degree of emphasis on tradition did not satisfy the uncompromising traditionists, who preferred not to use any human reasoning in law and chose, as much as possible, to base their doctrine on the Qurʾān and the ḥadīth. This was the avowed purpose of the two new schools which emerged in the third century ah (ninth century ce). The first and the only successful one of these was the Ḥanbalī school, founded by Aḥmad ibn Ḥanbal (d. 855), the orthodox opponent of the rationalists and the ahl al-raʾy (the other was the Ẓāhirī school of Dāwūd al-Ẓāhirī which is now extinct). Ibn Ḥanbal's reliance on tradition was so total that for some time he and his adherents were regarded not as real jurists (fuqahāʾ ) but as mere traditionists. His main work, Al-musnad (The verified), is a collection of some twenty-eight thousand traditions. He uses qiyās very little and draws mainly on the sacred texts. Ibn Ḥanbal's teaching was later refined and developed by his disciples and commanded a widespread following, but in spite of a series of brilliant scholars and representatives over the centuries, the numbers suffered a continuous diminution after the fourteenth century ce. In the eighteenth century, the Wahhābīyah, the puritanical movement in the Arabian Peninsula, derived their doctrine and inspiration from the Ḥanābilah as it had been expressed by the celebrated jurist and theologian Ibn Taymīyah (d. 1328).

Ironically, the Ḥanābilah are in some respects more liberal than the other schools. Ḥanbalī law, for example, adopts the doctrine of ibāḥah (lit., "permissibility") on matters which are not expressly prohibited by law. It presumes that the validity of acts and transactions is overruled only by the existence of proof to the contrary. For example, only Ḥanbalī law would allow the stipulation of a clause in a marriage contract to prevent the husband from entering into a polygamous contract in the future. While the other schools regard this as interference with the sharīʿah, Ḥanbalī law maintains that the basic purpose of the law is fulfilled by monogamy; since polygamy is merely permitted by the law, it may be validly restricted in this manner. Other examples of this nature that may be cited include Ibn Qayyim al-Jawzīyah's validation of one witness of just character as legal proof, and his approval of the acts of a bona fide catalyst (fuḍūlī ), both of which the other schools have rejected. The Ḥanbalī school is currently predominant in Saudi Arabia, Qatar, and Oman.

ShĪʿĪ Schools

In Sunnī law, the head of state, or caliph, is to be elected to office, and his main duty is to supervise the proper implementation of the sharīʿah, the divine law of Islam. Shīʿī law, on the other hand, maintains that leadership, the imamate, belongs to the descendants of ʿAlī through hereditary succession. Of the numerous Shīʿī schools, only three have survived to this day: Ithnā ʿAsharī (Twelver), Zaydī, and Ismāʿīlī. The differences among these groups stem from their divergence over the line of succession after the fourth imam. The Twelvers, who are the largest of the three groups, recognize twelve imams, hence their name, Ithnā ʿAsharīyah, or Twelvers, as opposed to the Ismāʿīlīyah, who are also called Sabʿīyah, or Seveners, because they differed with the other Shīʿī groups over the identity of the seventh imam. According to Twelver dogma, the twelfth imam, the imam of the age, who disappeared in 873 ce, will reappear to establish the rule of justice on earth.

For the Sunnīs, divine revelation, manifested in the Qurʾān and the sunnah, ceased with the death of the Prophet. For the Shīʿāh, however, divine revelation continued to be transmitted, after the death of the Prophet, to the line of their recognized imams. Accordingly, they maintain that in addition to the Qurʾān and the sunnah, the pronouncements of their imams, whom they believe infallible (maʿṣūm ), constitute divine revelation and therefore binding law. The Shīʿāh, moreover, accept only those traditions whose chain of authority (isnād ) goes back to one of their recognized imams; they also have their own ḥadīth collections. Since the imam is divinely inspired, the Shīʿāh basically do not recognize ijmāʿ. Twelver doctrine, however, permits ijmāʿ as interpretation of the command of the imams on a particular question by the jurist (mujtahid). The Twelvers are divided into two branches, the Akhbārī and the Uṣūlī. The Akhbarīyah do not recognize qiyās, but the Uṣūlīyah do. Shīʿī law, which mainly originates in the teaching of the sixth imam, Jaʿfar al-Ṣādiq (d. 765) bears similarity to Shāfiʿī law but differs with it on many issues. Temporary marriage, or mutʿah, for example, is valid only in Shīʿī law. The Shīʿī law of inheritance is also very different from the law of any other school in this field. Twelver doctrine was officially adopted in Persia under the Safavids in 1501; it still commands the largest following in Iran, and it has also followers in Iraq, Lebanon, and Syria.

According to the Ismāʿīlī dogma, the esoteric meaning of the Qurʾān and its allegorical interpretation is known only to the imam, whose knowledge and guidance is indispensible to salvation. The Ismāʿīlīyah are divided into two groups, eastern and western. The former are centered in India, Pakistan, and Central Asia, and their leader is the present Aga Khan, forty-ninth imam in the line of succession. The Western Ismāʿīlīyah followed al-Mustaʿlī, the ninth Fatimid caliph. This line went to the twenty-first imam, al-Ṭayyib, but he became mastūr (occult). This group resides in southern Arabia and Syria.

The Zaydīyah follow Zayd ibn ʿAlī, the fifth imam in the order of the Shīʿī imams. They endorse the legitimacy of the caliphs who preceded ʿAlī on the belief that an acceptable leader has a legitimate title notwithstanding the existence of a superior claimant. Their legal doctrine is the nearest of the Shīʿī schools to the Sunnīs, and they mainly reside in the Yemen.

Consensus and Divergence among the Schools

To summarize, disagreement among jurists is basically a consequence of the freedom of ijtihād which they enjoyed, particularly in the first three centuries of Islam. They have differed mainly in four areas: interpretation of the Qurʾān, acceptance and interpretation of the ḥadīth, rationalist doctrines, and subsidiary matters. Concerning the Qurʾān, the jurists have disagreed over the abrogation (naskh ) of some of the Qurʾanic verses by others where two verses provide divergent rulings on the same subject, or when the ḥadīth overrules a Qurʾanic verse. While al-Shāfiʿī's doctrine of naskh is based on the rule that the Qurʾān can only be abrogated by the Qurʾān and sunnah only by sunnah, the other three schools add that the Qurʾān and the sunnah may also abrogate one another.

The words of the Qurʾān are divided into general (ʿāmm ) and specific (khāṣṣ ). The jurists have disagreed regarding the meaning and implications of such words. For example, X is unable to pay his debt. His brother Y pays it while acting on his own initiative and out of good will. The question arises as to whether Y, who is called fuḍūlī, or catalyst, is entitled to claim his money back from X. Mālikī and Ḥanbalī law answer this question in the affirmative on the authority of surah 55:60 of the Qurʾān: "Is the reward of goodness (iḥsān ) aught but goodness?" But for the Ḥanafīyah and Shāfiʿīyah the words of this verse are too general to be applied to the case in question; hence they deny the fuḍūlī the right to a repayment.

The scope of disagreement concerning the sunnah is even wider, for in this area differences extend not only to the interpretation of ḥadīth but also to its authenticity. Whereas the Ḥanafīyah, and to some extent the Shāfiʿīyah, apply strict rules to verify the authenticity of ḥadīth, the Mālikīyah and Ḥanābilah are relatively uncritical. Al-Shāfiʿi and Ibn Ḥanbal, for example, accept a solitary (aḥād ) tradition, one which is reported by a single narrator, but Abū Ḥanīfah and Mālik accept it only under certain conditions. The jurists have also applied different rules to cases of conflict and abrogation between traditions. Whereas the majority would not, for example, allow the abrogation of a mutawātir (a tradition reported by numerous narrators) by an aḥād, the Ḥanafīyah permit this in principle.

Disagreement over rationalist doctrines such as raʿy, consensus, analogy, and ijtihād has already been discussed. It may be added here that Ḥanafī law applies istiḥsān, or juristic preference, as a doctrine of equity where strict implementation of analogy leads to hardships and undesirable results. The Mālikī school, however, adopts istiṣlāḥ (regard for the public interest), which is essentially similar to istiḥsān, albeit with some difference of detail. Al-Shāfiʿī rejects both istiḥsān and istiṣlāḥ, which he considers as no more than frivolous and arbitrary interference with the sharīʿah. Alternately, the Shāfiʿīyah, the Ḥanābilah, and the Twelver Shīʿah adopt istiṣḥāb, or deduction by presumption of continuity. Istiṣḥāb, for example, assumes freedom from liability to be a natural state until the contrary is proved.

Differences of ijtihād concerning subsidiary matters need not be elaborated, as the abundance of legal doctrines and schools within the sharīʿah is indicative of such diversity. By the beginning of the fourth century ah there was a consensus established to the effect that all essential issues had been thoroughly discussed and finally settled. With this "closing of the door of ijtihād," as it was called, ijtihad gave way to taqlīd, or "imitation." From then on every Muslim was an imitator (muqallid) who had to belong to one of the recognized schools. By consensus also the four schools were accepted, and accepted one another, as equally orthodox. Notwithstanding the emergence of prominent scholars in later centuries (including Ibn Taymīyah and Ibn Qayyim al-Jawzīyah) who objected to taqlīd, no one actually provided an independent interpretation of the sharīʿah. Taqlīd remained a dominant practice for about a thousand years until the reform movements of the late nineteenth century (notably the Salafīyah, whose prominent figure is Muḥammad ʿAbduh) and the modernist school of thought in the present century which challenged taqlīd and called for a return to ijtihād.

A Muslim may join any orthodox school he or she wishes, or change from one school to another, without formalities. Furthermore, Islamic countries have made frequent use of divergent opinions of other schools, including Shīʿī legal doctrines, in modern legislation. In order to achieve desired results, modern reformers have utilized procedural expedients permitted in the sharīʿah, such as takhayyur and talfīq. Takhayyur, or "selection," enables the jurist to adopt from the various interpretations of the sharīʿah that which is deemed to be most suitable. Reformers in the area of personal status, for example, have frequently adopted a variant doctrine of a recognized school as the basis of reform. Sometimes the view of an early jurist outside the established schools has been so selected. Furthermore, legal rules have been occasionally constructed by combining part of the doctrine of one school or jurist with part of the doctrine of another school or jurist. This variation of takhayyur is known as talfīq, or "patching," a procedure which has been employed in the modern laws of the Middle East. (For interesting illustrations and details on these procedural devices see Coulson's A History of Islamic Law.)

Bibliography

A useful biography of the well-known Sunnī and Shīʿī Jurists of early Islam, including the founders of the schools and their doctrines, can be found in Muhammad al-Khuḍarī's Taʾrīkh a-ltashrīʿ al-islāmī, 4th ed. (Cairo, 1934). Subhī Rajab Mahmassani's Falsafat al-tarshrīʿ fī al-Islām: The Philosophy of Jurisprudence in Islam, translated by Farhat J. Ziadeh (Leiden, 1961), contains more condensed information on both the Sunnī and Shīʿī madhhab s. This book also provides a useful bibliography of Arabic works on the subject. An accurate exposition of the roots of jurisprudence (uṣūl al-figh ) in the Sunnī schools can be found in Muhammad Ma'ruf al-Dawalibi's Al-madkhal ila 'ilm usul al-figh, 5th ed. (Cairo, 1965). Noel J. Coulson's A History of Islamic Law (1964; reprint, Edinburgh, 1971) and Joseph Schacht's An Introduction to Islamic Law (Oxford, 1964) remain the best English works on the jurisprudence and history of the Sunnī madhhabs. There is also much useful information, and a bibliography, on the subject in Nicolas P. Aghnides's Muhammadan Theories of Finance (New York, 1916). And finally, Ignázc Goldziher's Introduction to Islamic Theology and Law, translated by Andreas Hamori and Ruth Hamori (Princeton, 1981), is comprehensive on the Shīʿī madhhabs and their theological doctrines.