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 Malik-
ibn-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.