An Introduction to Islamic Law (7 page)

 

One of the most important features of the Shari
a and indeed of Islam as a whole is the pervasive role of the doctrinal legal schools. In
Sunni Islam, these schools were four: the
HANAFI
,
MALIKI
,
SHAFI
I
and
HANBALI
, named after the four
MASTER-JURISTS
who were assumed to be their founders. (It is worthwhile noting that these schools are entirely different from, and share no characteristics with, the law schools in our universities nowadays.)

The Arabic word for the legal school is
MADHHAB
, a term that has several meanings, all of which are interconnected. Generally, the word means that which is followed and, more specifically, the opinion or idea that one chooses to adopt; hence, a particular opinion of a jurist. Historically, this meaning of the term is of early provenance, probably dating back to the end of the seventh century, but certainly to the middle of the eighth. By the early ninth century, its use had become common.

The term
madhhab
is associated with three other meanings that have emerged out of, and subsequent to, this basic usage, and which reflected the formation of schools. The first of these meanings is a
principle defining the conceptual juristic boundaries of a set of cases. For example, an assumption of the
Hanafis is that misappropriation, in order to obtain, must involve the unlawful removal of property from its original place, where it had been in the possession of the owner. The
Hanbalis, on the other hand, define misappropriation as mere seizure of property, whether or not it is removed from its original place of ownership. Thus, taking possession of a rug by sitting on it (without removing it) is considered misappropriation by the Hanbalis, but not by the Hanafis. In terms of recovery of damages, this basic difference in definition contributed to generating significant differences between the two schools. Whereas the Hanbalis make the wrongdoer liable to the original owner for all growth of, and proceeds from, the misappropriated object, the Hanafis place severe restrictions on the ability of the owner to recover his accruing rights. The reasoning here is that the growth or proceeds of the misappropriated property were not yet in existence when the property was
“removed” from the hands of the rightful owner, and since they were not in existence, no liability on the part of the wrongdoer is deemed to arise. This example illustrates a central meaning of the term
madhhab
as a legal doctrine concerning a group of cases – in this instance cases pertaining to the recovery of damages – which are subsumed under a larger principle. And it is in this sense that it can be said that one school’s doctrine differs, sometimes significantly, from another’s.

The second meaning of
madhhab
is a jurist’s individual opinion when this enjoys the highest authority in the school, as distinct from the third associated sense of
madhhab
where it is used to refer to a group of jurists who are loyal to an integral and, most importantly,
collective
legal doctrine attributed to a
master-jurist from whom the school is known to have acquired particular, distinctive characteristics. Thus, after the formation of the schools, jurists began to be characterized as
Hanafi,
Maliki,
Shafi
i or
Hanbali, as determined by their
doctrinal
(not personal)
loyalty to one school or another. This doctrinal loyalty, it must be emphasized, is to a cumulative body of doctrine constructed by generations of leading jurists, which is to say, conversely, that loyalty is not extended to the individual doctrine of a single
master-jurist. By the middle of the tenth century, or shortly thereafter, these meanings were all present, which is to say that by this time the legal schools had come into full maturity.

How and when did the concept of
madhhab
evolve from its basic meaning into its highly developed sense of a doctrinal school? As we have already seen, the early interest in law and legal studies evolved within the environment of the
STUDY CIRCLES
, where men learned in the Quran and the general principles of Islam began to discuss, among other things, various quasi-legal and often strictly legal issues. By about 730 AD, such learned men had already assumed the role of
teachers whose circles often encompassed numerous students interested specifically in religious law. However, by that time, no obvious methodology of law and legal reasoning had yet evolved, so that one teacher’s lecture might not have been entirely distinguishable, methodologically and as an
articulated
body of principles, from another’s. Even the body of legal doctrine they taught was not yet complete, as can be attested from each teacher’s particular interests. Some taught rules of inheritance, while others emphasized the law of ritual, which was a fundamental part of the law. More importantly, we have little reason to believe that the legal topics covered later were all present at this early stage.

During the first half of the eighth century, with
SUBSTANTIVE LAW
having become more systematic, the jurists had begun to develop their own legal assumptions and methodology. Teaching and intense scholarly debates within
study circles must have sharpened the methods by which
jurists were doing law, which in turn led them to defend their own, individual conceptions of the law. Each jurist, on adopting a particular method, gathered around him a certain following who learned their jurisprudence and method from him.

Yet, it was rare that a student or a young jurist would restrict himself to one circle or one teacher; indeed, it was not uncommon for young jurists to attend several circles in the same city. During the second half of the eighth century, aspiring jurists did not confine themselves to circles within one city, but traveled near and far in search of reputable
teachers (one of the notable characteristics of learning in pre-modern Islam). Each prominent teacher attracted students who “took law” from him. A judge who had studied law under a teacher was likely to apply the teacher’s doctrine in his court, although, again, loyalty was not exclusive to a single doctrine. If he proved to be a sufficiently promising and qualified jurist, he might “sit” as a professor in his own turn, transmitting to his students the legal knowledge he gained from his teachers, but seldom without his own reconstruction of this knowledge. The legal doctrines that
Abu Hanifa,
Malik and
Shafi
i, among many others, taught to their students were largely a transmission from their own teachers. None of these, however, despite the fact that they were held up as school founders, constructed his own doctrine in its entirety, as later Islamic history would have us believe. Rather, all of them were in fact as much indebted to their teachers as these latter were indebted to their own.

During the eighth century, therefore, the term
madhhab
meant a group of students,
LEGISTS
,
judges and
jurists who had adopted the doctrine of a particular leading jurist, such as Abu Hanifa – a phenomenon that I call here a “
personal school.” Those who adopted or followed a jurist’s doctrine were known as associates, namely, those who studied with or were scholarly companions of a jurist. Most leading jurists had such associates, a term that also meant “followers.” Thus, all
master-jurists were linked with a
madhhab
, namely, a personal school revolving around both his circle and personal legal doctrine.

Nonetheless,
doctrinal loyalty was not yet in order. As we noted, it was not unusual for a legist to shift from one doctrine to another or simultaneously adopt a combination of doctrines belonging to two or more leading jurists. This became inconceivable once the doctrinal schools emerged.

Indeed, as it came to pass, the standard reference of the technical term “
madhhab
” was to the doctrinal school, which featured several characteristics lacking in its personal counterpart. First, the personal school comprised the substantive legal doctrine of a single leading jurist, and, at times, his doctrine as transmitted by one of his students. The doctrinal
school, on the other hand, possessed a cumulative doctrine of substantive law in which the legal opinions of the leading jurist, now the assumed “founder,” were only the first among equals; that is, equal to the rest of the opinions and doctrines held by various other jurists, also considered leaders
within
the school. In other words, the doctrinal school was a collective and authoritative entity, whereas the personal school remained limited to the individual doctrine of a single jurist.

The second characteristic was that the doctrinal school constituted as much a methodological entity as a substantive, doctrinal one. In other words, what distinguished a particular doctrinal school from another was largely its legal methodology and the substantive principles it adopted in dealing with its own law. Methodological awareness on this level had not yet developed in the personal schools, although it was on the increase from the middle of the eighth century.

Third, a doctrinal school was defined by its substantive boundaries, namely, by a certain body of law and methodological principles that clearly identified the outer limits of the school as a collective entity. The personal schools, on the other hand, had no such well-defined boundaries, and departure from these boundaries in favor of other legal doctrines and principles was a common practice.

The fourth characteristic, issuing from the third, was loyalty, for departure from legal doctrine and methodological principles amounted to abandoning the school, a major event in the life of a jurist. Doctrinal loyalty, in other words, was barely present in the personal schools, whereas in the later doctrinal schools it was a defining feature of both the school itself and the careers of its members
.