EWIC-Islamic Law, Overview

Law: The Four Sunn Schools of Law
Overview
This entry initially examines the factors that precipitated the rise of the four legal schools in Sunn
Islam, the various methodologies the schools utilized in the derivation of juridical rulings, and the
cultural factors that influenced the rulings they
issued. These were important considerations in the
issuance of rulings on women in Sunn jurisprudence. Based on the rulings stated in various juridical tracts, the entry also compares and contrasts the
treatment of women in these schools.
The establishment of the
schools of law (madhhib)
With the establishment of the Umayyad dynasty
in the eighth century, Muslims were living under
rulers who were not regarded by many as the
proper authority to create the Qurnic ideal of a
just social order. It was at this time that the office
of a definitive group of scholars interested in
recording traditions took shape. Many Followers
(tbi n) of the Prophet are also mentioned as having acumen in juridical matters. These experts in
the legal field tried to define and expound Islamic
legal doctrine especially on issues that pertained
to rituals, inheritance, marriage, divorce, and so
forth. The early scholars in the legal field formed
the provenance of the fuqah a group of scholarly elite who specialized in the study of Islamic
legal science, the Shara.
Initially, the jurists were private individuals who
were keen to discern Gods intent on a particular
ruling. The goal of the jurists endeavor was to
reach an understanding ( fiqh) of the Shara, that is,
to comprehend in precise terms the law of God.
Guided by a corpus of precepts and laws and their
own independent reasoning, the jurists, especially
in the Abbsid period, attempted to construct a
legal edifice by developing and elaborating a system of Shara law binding on all Muslims. They
began to interpret and develop Islamic law, invoking various hermeneutical principles such as
malaa (derivation and application of a juridical
ruling that is in the public interest), qiys (analogy),
ijtihd (independent reasoning), istisn (preference of a ruling that a jurist deems most appropriate under the circumstances), and other innovative
interpretive principles. They aimed to respond to
the needs of the times and to go beyond the rulings

stated in the revealed texts while at the same time
paying respect to the very texts that had empowered them.
Increased legal activities by the fuqah led to the
development of ancient schools of law in different
parts of the Islamic world. Initially, the schools of
law did not imply a definite organization or strict
uniformity of teachings within a school. Gradually,
the jurists constructed a program for private and
public living centered on the Shara. The Shara, as
articulated by these jurists, became a structured
normative praxis and a comprehensive system that
governed personal and public demeanor. The
schools were named after their founders or prominent jurists in the area.
The jurists of the schools of
law
Derivation of legal rulings (akm) was contingent on local circumstances and the employment of
different sources of law. In Medina the sunna (practices of Muammad) was informed not only by
transmitted reports from the Prophet but also by
the transmitted practices of the community. The
local character of the traditional practices was
partially incorporated in the Medinese concept of
Prophetic sunna. Preponderance was frequently
given to local practice over reports of Prophetic
practice since it was argued by the Medinese that
contemporary practice could interpret or supplement earlier practice.
In his al-Muwaa, Mlik b. Anas (d. 179/795)
often transmits earlier or contemporary Medinese
practice on a legal point. He also cites different
reports on the practices of the Prophet to vindicate
his own legal opinion. He then accepts or rejects
these in the light of his own reasoning and based on
the practices of Medina. This selective process can
be corroborated from his frequent usage of the
statement, This is the opinion that we [the people
of Medina] hold. In essence, Mlik jurisprudence
attempted to forge a closer link to practical considerations by attaching greater weight to social customs than did jurists in other areas.
In contrast to the Mliks, the jurists of Kufa saw
their interpretations based on reasoning (ray) as
an equally authoritative factor in the decision of a
point of law. The ray of a scholar was partially
overview
incorporated by Ab anfa (d. 150/767) as an
important element in jurisprudence. The jurists of
Kufa also used qiys (analogy) in the extension of
Prophetic practice and often formulated the law on
rational grounds as opposed to ruling on the basis
of transmitted practice that purportedly reflected
Prophetic practice.
Kufan society was very cosmopolitan as it was
exposed to different cultures and classes. Its class
distinctions were not felt in the closely-knit Arab
society of Medina. The school of Medina was conservative and bound to the laws established in
Medina, whereas, animated by a spirit of independent thinking and analogy, the school of Kufa
was eclectic and receptive to foreign legal systems.
The Kufans also incorporated the customs of the
divergent cultures that were prevalent there including some Sassanian customs appropriated
from Persia.
The views of another prominent jurist of the
time, Muammad b. Idris al-Shfi (d. 205/820),
differed considerably from those of Medina and
Kufa. Shfi contended that the personal opinion
of the jurist must arise within rather than outside of
the perimeters of Prophetic sunna. If this cannot be
demonstrated, he said, then the sunna cannot be
accepted as it might have arisen from the opinions
of local authorities or arbitrary reasoning.
Focusing on the famous Qurnic verse Obey
God and His messenger, Shfi further circumscribed the definition of the sunna, restricting it to
a textual and transmitted record of Prophetic practice. The Medinese and Kufans would have to base
their rulings on a universal standard, the sunna as
reported in accredited traditions. Although he depended on traditions from the Prophet, Shfi also
allowed limited usage of analogy and a more
restricted form of reasoning excluding arbitrary
opinions and discretionary decisions. Recognizing
the presence of spurious traditions he stipulated
strict conditions for the acceptance of traditions.
By insisting on the sunna of the Prophet, Shfi nullified the concept of local practices and arbitrary
reasoning. Through his efforts, the four schools
came to subscribe to a common theory of the
sources of law (Qurn, tradition, consensus, and
analogy).
In contrast to the other schools of law, the main
thesis of the ahl al-adth (people of tradition) was
that traditions transmitted from the Prophet and
his companions superseded local traditions and
legal injunctions that were derived independently
of revealed sources. They produced traditions to
vindicate their views and based their legal system
on the Qurn and traditions purportedly transmit-
441
ted from the Prophet. Even though many of these

traditions were spurious, the ahl al-adth spurned
all forms of reasoning and some jurists, such as
Amad b. anbal (d. 241/855), even claimed that
weak traditions were better than human reasoning.
The use of various hermeneutical devices, exposure to diverse cultural influences, and a variegated
understanding of the sources, derivation, and contents of the sunna were thus important factors that
precipitated differences between the schools and
influenced the rulings that were issued by them.
Encyclopedia of Women
& Islamic Cultures
volume ii
Family, Law and Politics

General Editor
Suad Joseph
Associate Editors
Afsaneh Najmabadi
Julie Peteet
Seteney Shami
Jacqueline Siapno
Jane I. Smith
brill
leiden boston
2005
Copyright 2005 by Koninklijke Brill NV,

Leiden, The Netherlands
Koninklijke Brill NV incorporates
the imprints Brill Academic Publishers,
Martinus Nijhoff Publishers and VSP
ISBN
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without
prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate
fees are paid directly to The Copyright Clearance Center,
222 Rosewood Drive, Suite 910, Danvers MA 01923,
USA. Fees are subject to change.
Cover design: beeldvorm, Pijnacker
ISBN
90 04 12818 2 (Vol. I I )
90 04 13247 3 (Set)
This book is printed on acid-free paper.
printed in the netherlands

For authors template, see:
http://www.brill.nl
http://www.sjoseph.ucdavis.edu/ewic

EWIC-Islamic Law, Overview

Uploaded by

Copyright:

Available Formats

EWIC-Islamic Law, Overview

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

EWIC-Islamic Law, Overview

Uploaded by

Copyright:

Available Formats

Law: The Four Sunn Schools of Law

the needs of the times and to go beyond the rulings

ted from the Prophet. Even though many of these

Family, Law and Politics

Copyright 2005 by Koninklijke Brill NV,

Cover design: beeldvorm, Pijnacker

This book is printed on acid-free paper.

printed in the netherlands

You might also like