AS MUHAMMAD’s message spread into various areas, each in possession of its own set of local religious, legal, and cultural traditions, subsequent generations—unlike earlier generations, for whom “being Arab” went a long way to defining “Islam” and who relied largely on prevailing custom and human reason—needed some form of systematic law to deal with pressing issues such as expansion and conversion, and to define what exactly constituted Islamic belief and practice. As a result, courts and their legal rulings (fatwas), perhaps more than any other institution, began to shape various Muslim worldviews. This chapter focuses on the legal developments that made this possible, showing how the rise of Islamic law was intimately connected to the gradual emergence of “Sunnism.”
Muhammad was regarded by his immediate followers as a politician, a military leader, a judge, a prophet, and a religious guide. He most decidedly was not a legal jurist who put in place a system of law governing every aspect of a Muslim’s life. It is also highly unlikely that such a system developed either in his lifetime or in the period immediately thereafter. Too little is known about his life or even from the final redaction of the Quran to make such claims. What we can say with some degree of certainty is that customs of understanding Muhammad’s evolving message most likely subsequently crystallized into distinct theories of legal reasoning, which in turn led to the gradual formation of a systematic legal code. Moreover, it is important not to assume that the formation of Islamic law occurred in a vacuum; it most likely was also influenced by and responsive to earlier legal codes, especially Jewish and Roman.
1The name “Sunni” derives from a technical term that we have already encountered: “Sunna.” In
chapter 2, we saw how the latter term was used to refer to the customs and precedent established by an authoritative individual that ideally functioned as a model or paradigm of emulation for others.
2 When the term “Sunna” appears in Islamic legal theory, it is used in a more restrictive sense to refer to the normative life of Muhammad that was constructed and imagined as authoritative by later generations. (It should be noted, though, that Shi
ʿis also employ it to refer to the Sunna of their Imams.) This construction was certainly connected to the collection of hadith reports, wherein Muhammad’s Sunna is both established and encountered.
The name “Sunni” abbreviates a phrase that better clarifies the Sunni movement’s ideological parameters: “ahl al-sunna waʾl-jamaʿa” (the People of the Tradition [of Muhammad] and the Community). As with Shiʿism, however, it is imperative that we not regard this tradition as emerging fully formed at the time of Muhammad. On the contrary, it took time to develop, often in relationship to a series of legal and theological disputes, certain answers to which would emerge as “orthodox.” Although many of these answers would at a later date be taken to have existed at the time of Muhammad, there is no clear evidence that they did.
Sunni Islam is defined not by its allegiance to a particular individual (e.g., Ali and the
ahl al-bayt) or institution (e.g., the Imamate), as Shi
ʿism is, but by following one of the four authentic schools of law that are envisaged as representing the true elaboration of Muhammad’s Sunna. These schools took generations to develop and were done so largely by means of a group of legal scholars (
ulama; sing.,
alim), whose main concern was to determine what obedience to God should mean in a daily context.
3 The product of their collective efforts is the sharia, literally the “path” or “way” that Muslims should follow.
According to Muslim belief as it developed in these circles, God is the sole author of the law. Humans articulate this law by means of the science of jurisprudence (
fiqh). Although this law is ultimately considered to be an eternal and ideal system, human intelligence and experience are required to elucidate its parameters. So even though legal rulings may change over time, the law itself is considered to remain eternal. The rules of jurisprudence were elaborated by distinct methods and techniques developed in the centuries after the death of Muhammad. Because jurisprudence is considered a science (
ilm), it is overseen by specialists or “doctors of the law” (
fuquha; sing.,
faqih) who are responsible for working through its legal and ethical ramifications.
4 These
fuquha, it should be noted, did not simply pronounce the law but disagreed and debated over its formulation and application. And these disagreements and debates played a major role in the formulation of manifold Islamic identities.
As is the case with regard to so much in the formative period of Islam, there is considerable debate in the secondary literature concerning the origins of Islamic law. The major paradigm, supplied by the German Orientalist Joseph Schacht (1902–1969),
5 contends that Islamic law, as we recognize it today, did not exist during the first one hundred years after Muhammad’s death. Based on a close analysis of legal hadiths, Schacht argued that most if not all the legal texts were fabricated by scholars writing centuries after Muhammad’s death and that they reflect those jurists’ opinions. The origins of the Islamic legal tradition, according to Schacht, derived from unacknowledged borrowings from various Near Eastern (e.g., Persian, Jewish, Roman) legal codes. In the eighth century, roughly two hundred years after Muhammad’s death, circles of legal scholars arose in Mecca, Medina, Egypt, Kufa, Basra, and Yemen. These geographic schools of law were subsequently “personalized” around eponymous founders. The key figure in the history and crystallization of Islamic jurisprudence was Muhammad ibn Idris al-Shafi
ʿi (d. 820), who was largely responsible for creating the methodology for ascertaining legal principles, known as
usul al-fiqh (roots of jurisprudence). Within a century of al-Shafi
ʿi’s death, however, independent legal reasoning largely ceased, with the result that, according to Schacht, Islamic legal thinking became increasingly rigid.
Highly critical of Schacht’s methodology, Wael Hallaq disputes everything from Schacht’s chronology to the existence of distinct “geographical schools.”
6 He argues, for example, that in the eighth century schools associated with individual doctrines transformed into schools oriented around the doctrines of groups of like-minded scholars. Although Hallaq does not dispute al-Shafi
ʿi’s significance, he argues that the
usul al-fiqh did not arise until the century after al-Shafi
ʿi. He maintains that Islamic law, rather than becoming rigid after al-Shafi
ʿi’s death, actually became more dynamic and creative.
7Despite debates in the secondary literature concerning the origins of the Islamic legal tradition, it is important to be aware that the concept of “law” in the Muslim sense is much broader than our modern and non-Muslim understanding of it. Although words such as “religious” and “secular” derive their potency from a much later date, Islamic law, broadly speaking, pertains to both of these domains. It deals with subjects that we consider both religious (e.g., prayer, ritual purity) and secular (e.g., murder, adultery), thereby calling into question the utility of such terms within a religious studies context. One’s allegiance to this all-encompassing system of law is in theory the defining element of a Sunni Muslim’s identity. And although this concept of law also functions highly in Shiʿism, it is also connected to other concepts there, such as the role of the Imamate.
Determining the law is based on certain ways of reading, elucidating, and commenting on the Quran and Muhammad’s Sunna, as encountered in the hadith literature, which is believed to have been faithfully and accurately transmitted from Muhammad’s Companions to later times. Because of Muhammad’s purity as the vehicle of revelation, his life had to be constructed as perfect (hence, the use of adjectives such as “illiterate” and “sinless” to describe him). His Sunna accordingly represents the perfect embodiment of the individual before God, and his life becomes the ideal for every Muslim. However, what determines Muhammad’s Sunna, especially how this Sunna is meant to correspond to every feature of a Muslim’s life, is not always clear. For this reason, scholars arose to work out the legal precedents and other such minutiae to establish the law.
In its most general terms, the Muslim conception of the law is primarily ideal and theoretical in the sense that it did not emerge from a series of precedents. Rather, it developed at the hands of legal theorists in response to what they considered to be a set of concerns involving what the ideal Muslim response to various phenomena and instances should be. This process created a tension between the theoretical nature of the law and its more practical aspects. Much like the concept of the law in rabbinic Judaism, Muslim law is primarily “religious” in the sense that the threat of punishment comes primarily from God. For instance, one who does not fast during the month of Ramadan or who does not pray on a daily basis does not receive any sort of punishment in this world (although the issue of enforcement, as indicated in later chapters, is not always left to God). In the modern world, the place of sharia—or, as it is often called, “sharia law”—has been a topic of great interest and concern to secular European and North American nations (see
chapter 12).
Sharia is customarily divided into two domains:
ibadat (ritual actions) and
muʿamalat (social transactions). The majority of
ibadat deals with the various ritual obligations and acts of worship (e.g., prayer, fasting) that comprise Muslim life.
Muʿamalat, on the contrary, concern the more mundane and social aspects of a Muslim’s life (e.g., marriage, divorce, inheritance).
8The ultimate goal of sharia is to enable believers to secure a place in the world to come. The definition of this goal led to a five-fold taxonomy of human actions. Although all actions require correct intention (
niyya), such actions are classified as obligatory (
wajib); recommended (
mandub)
; permissible (
mubah); disapproved (
makruh); and forbidden (
haram). Without getting into all the subtle distinctions between these five groups, suffice it to say that these distinctions show the intersection of the legal, the ritualistic (i.e., the religious), and the moral. Obligatory actions are those that bring reward when performed and punishment when avoided. Forbidden actions are the opposite: they bring reward when avoided and punishment when performed. The majority of actions, however, fall into the “permissible” category and thus have little effect on one’s status in the hereafter.
What would emerge as both Shi
ʿism and Sunni Islam created systems of law in response to developing need. Although these two denominations had radically different conceptions of what constituted authority and the structures perceived to surround it, they often developed comparable or even identical answers to similar legal questions and issues, which again presents evidence of the fluidity between the two denominations at an earlier stage before crystallization. It is for this reason that, despite real historical tensions between the two, they largely tend to regard each other as “Muslims” in the sense that they did not become separate religions. Where they differ legally, not surprisingly, is on matters relevant to their own particular concerns, especially as they relate to their specific “religious” and authoritative systems.
Powering the emergence of what would become full-blown Sunni Islam was a group of people known as
ahl al-hadith, whom Marshall Hodgson felicitously calls “Hadith folk.”
9 This group coalesced around the hadith reports attributed to Muhammad, which seemed to have functioned largely as one of their primary sources of religious authority. The hadith folk were interested in preserving the religious and moral authority of what they considered to be an ideal past (i.e., the time of Muhammad). They also tended, at least initially, to deprecate Ali and to elevate Mu
ʿawiya—Ali’s successor and founder of the Umayyad dynasty—as an associate of Muhammad.
Whereas the pathos emerging from the martyrdom of Husayn seems to have played a key role in the eventual development of Shiʿism, hadith folk were engaged in a process of self-definition based on a sense of community consciousness and personal devotion stemming from loyalty to this developing legal system. The rest of this chapter seeks to describe this legal system in greater detail.
It is important to realize that one of the earliest debates in the emerging Sunni movement—one that would have important consequences for subsequent legal and theological speculation—was between those who held that all legal matters could be derived solely from the hadiths and those who argued that there was also room for the deployment of common sense (
raʾy).
10In addition, the system of “law,” as it would emerge at the end of this process, functions in Sunni Islam as the perceived locus wherein the believer encounters God. In the period in which the law was being developed, this perception undoubtedly contributed to the formation of the idea—now omnipresent but still being worked out in the earlier period—that the Quran represents God’s eternal speech, the bedrock for legal formulation. This sentiment undoubtedly contributed to the elevation of the Quran and the Sunna as the constitutive elements of both communal and personal piety.
It quickly became apparent, however, that these two sources could not function as the sole arbiters of all legal, religious, social, or political concerns for the simple reason that they did not address all such concerns. There soon arose, then, the notion that they needed to be interpreted and supplemented. The result was the gradual formation and encoding of other principles to interpret the Quran and the Sunna so as to make them relevant to all possible features of a Muslim’s life. Taken together, all these sources succeeded in establishing the sharia as a universal and universalist code of law.
Muhammad ibn Idris al-Shafi
ʿi (767–820) is regarded as a towering figure in the development of Islamic legal practice. Although it is important to note that some scholars, most notably Norman Calder, date al-Shafi
ʿi’s main works, including the so-called
Risala (
Treatise), to a period about a century later than has generally been assumed,
11 very little is known about al-Shafi
ʿi’s life—the earliest biography dates to the tenth century and provides little more than a series of anecdotes. He seems, however, to have been largely responsible for both establishing and clarifying Muhammad’s Sunna as an authoritative basis of law. Tradition furthermore ascribes to al-Shafi
ʿi the formation of a series of principles known as the
usul al-fiqh, the four “roots of jurisprudence” responsible for ascertaining all legal decisions in Islam.
12 As Joseph Lowry has recently argued, al-Shafi
ʿi’s originality may not reside so much in the theoretical development of these “roots,” which appear only in passing in the
Risala, but in an increasingly and more narrowly defined relationship between the Quran and the Sunna.
13Against traditionalists who maintained that jurists could produce legal verdicts based only on authentic hadith, al-Shafi
ʿi argued that legists could in fact engage in
ijtihad (independent reasoning), but without engaging in arbitrary or personal deductions.
14 He attempted to standardize the procedure of legal reasoning. He argued that the only authoritative Sunna was that of Muhammad as passed down from Muhammad himself in contrast to those traditions passed on by the Companions. Al-Shafi
ʿi also reasoned that the Sunna could not contradict the Quran and that the Sunna could be used only to explain the Quran. Furthermore, he claimed that if a practice was widely accepted throughout the Muslim community, it could not be in contradiction to the Sunna. This claim is further evidence for the notion that Quranic commentary, the development of legal reasoning, and hadith criticism were interconnected “disciplines” in the formation of Islam.
A SELECTION FROM SHAFIʿI’s RISALA
On the importance of Sunna:
God has sent down to you the Book and the Wisdom, and has taught you what you did not know before; the bounty of God towards you is ever great (Q 4:113). So God mentioned His Book—which is the Quran—and Wisdom, and I have heard that those who are learned in the Quran—whom I approve—hold that Wisdom [referred to in this verse] is the sunna of the Apostle of God. This is what God Himself has said and God knows best! For the Quran is mentioned [first], followed by Wisdom; then God mentioned His favor to mankind by teaching them the Quran and Wisdom. So it is not permissible for Wisdom to be called here [anything] save the sunna of the Apostle of God. For [Wisdom] is closely linked to the Book of God, and God has imposed the duty of obedience to His Apostle, and imposed on men the obligation to obey His orders. So it is not permissible to regard anything as a duty save that set forth in the Quran and the sunna of His Apostle. For [God], as we have just stated, prescribed that the belief in His apostle shall be associated with belief in Him.
The sunna of the Apostle makes evident what God meant [in the text of His Book], indicating His general and particular [commands]. He associated the Wisdom [embodied] in the sunna with his Book, but made it subordinate [to the Book]. Never has God done this for any of His creatures save His Apostle.
*On usul al-fiqh:
We make decisions on the basis of the [text of the] Book and the generally accepted sunna, concerning which there is no disagreement, and we maintain that therefore such decisions are right according to both the explicit and implicit [meaning of the sources]. We also make decisions on the basis of a single-individual tradition on which there is no general agreement, and we hold that we have made the decision correctly according to its explicit meaning, since it is possible that he who related the tradition may have made an error in it.
We also acknowledge on the basis of consensus and analogy, although the latter is the weaker of the two instruments. Analogy is used only in the case of necessity, since it is not lawful if a tradition exists, just as performing the ritual ablution with sand renders one pure when one is travelling and there is no water; but it does not render one pure if water is available. It produces a state of purity only if water is not at hand. Similarly, a source other than the sunna can be used as the basis for a decision if there is no sunna.
†*Muhammad ibn Idris al-Shafi
ʿi,
Islamic Jurisprudence: Shafiʿi’s “
Risala,” trans. Majid Khadduri (Baltimore: Johns Hopkins University Press, 1961), 111–112.
Given his role in the elevation and systematization of the Sunna as recorded in the hadith, al-Shafi
ʿi was also a crucial figure in the development of “
isnad criticism,” the goal of which was to guarantee the authenticity of those who passed on Muhammad’s sayings (see
chapter 2).
In order to protect the law—by interpreting it “faithfully,” thereby maintaining correct procedure in its application—there arose a class of scholars, the so-called learned ones (ulama), those whose domain of expertise was knowledge (ilm), broadly conceived. It is from their ranks, for instance, that the legists (fuquha) emerged. These individuals were responsible for interpreting and elaborating on the legal program for both private and public life. The term ulama is in many respects an omnibus one. Although well versed in legal theory as the main class of Islamic lawyers, many ulama also specialized in other fields, such as Quranic interpretation, theology, and even philosophy, and in many instances all these fields were seen to overlap with one another.
The origin of the
ulama is not easily adducible. One account sees them emerge as a group that defined itself largely in terms of its adherence to and interpretation of Muhammad’s Sunna. In the second quarter of the ninth century, they began to challenge the caliph’s religious function as the sole arbiter of orthodoxy. This challenge was exacerbated by the
mihna (inquisition) imposed by the caliph al-Mamun (d. 833) to establish religious orthodoxy and requiring religious scholars to swear that they believed the Quran to be created (as opposed to eternal). Some scholars, however, contend that we should conceive of the relationship between the caliph and the
ulama as more complex and dynamic and not simply and necessarily antagonistic.
15As a social category, the
ulama are those Muslim scholars who have completed several years of specialized training and study of Islamic sciences (Quran, hadith, and the like). They were and indeed still are trained at institutions of Islamic higher education referred to as
madrasas. As legal scholars,
ulama tend to work within a preexistent tradition associated with one of the four legal schools (see the section “The Four
Madhahib”).
The modern period has witnessed a considerable loss of the
ulama’s authority and influence, a loss that has largely occurred on two fronts. First, many secular Arab governments attempted to control the madrasas’ influence by nationalizing them. In 1961, for example, the Egyptian president Gamal Abd al-Nasser put the
ulama at al-Azhar University, one of the oldest institutions of Islamic learning, under the state’s direct control. Second, the rise of more militant varieties of Islam has stemmed the influence of the
ulama today. Later chapters discuss this topic more fully, but suffice it to say here that such militant individuals and groups are highly critical of the traditional authority associated with the
ulama. They contend that the
ulama, as an institution, are often complicit with the interests of the secular and by definition corrupt states, for whom they are little more than state employees.
One of the earliest set of legal concerns in the emerging Islamic tradition was the concept of
naskh (abrogation), a principle used in Islamic legal exegesis to account for apparent contradictions within the Quran itself or between the Quran and the Sunna. It eventually would become a full-blown issue—complete with its own hermeneutic—in ascertaining the law.
Naskh is based largely on the principle of chronology and progressive revelation, with the assumption that Muhammad lived for more than twenty years as a prophet and that the Muslim community’s social, political, and thus legal situation changed as it grew. To account for these changes, it was acknowledged that certain verses might have been only temporary and then replaced as new situations demanded. Earlier verses might have been replaced by later verses for several reasons:
SPECIFICATION
Later verses made the concepts expressed in earlier verses more specific. In Quran 2:175, we have a fairly open-ended proscription: “Prescribed for you, when any of you is visited by death, and he leaves behind some goods, is to make testament in favor of his parents and next of kin honorably—an obligation on the God-fearing.” This verse is abrogated—made more specific—by another verse:
God charges you as regards your Children: to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the heirs, the mother has a third; if the deceased has brothers, the mother has a sixth. The distribution in all cases after the payment of legacies and debts. Ye know not whether your fathers or your sons are nearest to you in benefit. These are settled portions ordained by God. And God is All-knowing, All-wise. (4:11)
INTENSITY
Later verses also intensified earlier verses. A verse that seems to tell the believer to avoid being drunk during prayer is intensified by the banning of alcohol (in addition to other practices) altogether. “O ye who believe! Approach not prayers when you are drunken, until you know what you are saying” (4:46) is abrogated by “O believers, wine and arrow-shuffling idols, and divining arrows are an abomination, some of Satan’s work; so avoid it; haply you may prosper” (5:92).
Abrogation applies to both the Quran and the Sunna. A Quranic verse may abrogate another Quranic verse, and a prophetic Sunna may likewise abrogate another prophetic Sunna. The possibility of abrogation between these two sources, though, is a much more contentious issue.
As should now be apparent, the two major sources of the law in Sunni Islam are the Quran and the Sunna of Muhammad; in Shi
ʿism, they are Muhammad and the Imams. Both the Quran and the Sunna, it must be remembered, took years to develop and be codified as a collection of texts. As Islam spread and encroached into larger and more cosmopolitan centers, however, it had to develop an expanded and more complex legal system. To apply these two sources to every legal situation proved both impossible and untenable. Even though the Quran is regarded as the most important text in Islam, it provides no clear or consistent method of jurisprudence. In like manner, it does not deal with many aspects of human life that fall under the broad category of “law.” On a practical level, then, the Quran and the Sunna had to be understood as legal documents. However, neither provides strict legal guidance for all aspects of Muslim life precisely because neither was composed as a legal document in a strict sense. As a result, subsequent scholars would play a formative role in the creation of Islamic legal theory that they perceived to emerge from these two sources. Several hermeneutical principles developed that could be employed to derive the law from these two sources. Taken together, these principles are the four “roots of jurisprudence” (
usul al-fiqh): the Quran, the Sunna,
qiyas, and
ijma. The first two have already been discussed in some detail, so let us move on to the latter two.
Qiyas
Whenever a legal problem arose for which the Quran and the Sunna could not provide an answer, legists would search for an analogous situation (
qiyas) for which a clear ruling had already been made. The result is that most laws in the Islamic legal tradition derive from this principle owing to the paucity of legal rulings in the Quran and the Sunna.
For example, wine drinking is forbidden in Islam because of its intoxicative properties. Intoxication is considered bad because it removes Muslims from their duties, including mindfulness of God. Although there is no ruling in the Quran or Sunna on the use of cocaine or other “hard” drugs, legal scholars can rule that they, too, are forbidden because their effects are analogous to the effects of wine.
One of the biggest fears in Islam is that one can be charged with
bida (innovation)—a concept often regarded as heretical from an orthodox legal or doctrinal perspective—so the employment of
qiyas is not without criticism. However, most law schools gradually accepted analogy as a principle in various forms. Perhaps not coincidentally, there exists a hadith that dates the principle of analogy to the time of Muhammad. According to this report, when Muhammad sent a Companion to Yemen, he asked him the following question:
“How will you decide when a [legal] question arises?” [The Companion] replied, “According to the Book of God.” [Muhammad then said]: “If you do not find the answer in the Book of God?” [The Companion replied]: “Then according to the
Sunna of the messenger of God.” [Muhammad then said]: “What if you do not find it in either the
Sunna or the Book?” [The Companion replied]: “Then I will come to a decision according to my own opinion without hesitation.” Then the Messenger of God slapped him on the back with his hand, saying, “Praise be to God who has led the messenger of the Messenger of God to an answer that pleased him.”
16
It should not come as a surprise that many of the same scholars responsible for the transmission of the hadith were also responsible for the formation of the various legal schools and the principles associated with them.
IJMA
The principle of
ijma ideally refers to the consensual agreement of those responsible for the formation of legal rulings. Its justification also comes from a hadith attributed to Muhammad: “My community will never agree on an error.” Consensus is often regarded as the most important source after the Quran and the Sunna because it is the principle by which the legal scholars agree on subsequent principles. In other words, if consensus had not accepted
qiyas as authoritative, it would not be a valid source of Islamic law.
The principle of ijma would subsequently become the most important principle in the Islamic legal tradition. It is also the principle by which the Sunna and the Quran are confirmed as authoritative. Yet consensus paradoxically derives from precisely these two sources. Ijma works on the notion that if there are no dissenting voices from the next generation in which a law has to be developed, then the law is subsequently deemed confirmed. It is thus not necessary for every generation to reach consensus on laws that have already been formulated according to this principle.
Some have argued in the modern period that the principle of
ijma makes Islam compatible with democracy.
17 It is worth pointing out, without getting into the issue of the compatibility between Islam and democracy here, that the term
ijma in its classical usage refers solely to the consensus of male scholars. Some reformers, however, have claimed that this concept should be expanded so as to include not just legal scholars, but the entire Islamic community.
18Ijtihad (independent reasoning) was employed in the period of the formation of Islamic jurisprudence as a way to create legal rulings independently of the other two main principles, consensus (
ijma) and analogical reasoning (
qiyas). It is intimately related to the latter owing to the fact that one derives rulings analogically owing to the free exercise of one’s intellect. In the century or so after al-Shafi
ʿi, at least according to Schacht, Muslims increasingly tended to accept on authority the legal rulings of their predecessors without relying on original reasoning. Implicit in such a claim is that al-Shafi
ʿi represents the zenith of jurisprudential thought in Islam up until the present. The opposite of
ijtihad is
taqlid (imitation), when one simply imitates the legal rulings of one’s predecessors. It is customarily said that the “gates of
ijtihad closed” in the tenth century. Others, however, most notably Wael Hallaq, have argued that the gates of
ijtihad never closed and that much creative legal thought occurred in the centuries after al-Shafi
ʿi up to the present.
19
After Muhammad’s death, many local customs arose for interpreting and understanding the Quran and the emerging Sunna in relationship to new situations. In the ninth century, older regional schools were redefined largely as personal schools.
20 Sharing common interpretations of the ways in which the law should be deduced and interpreted, these schools (
madhahib; sing.,
madhhab) began to coalesce around the teachings and names of well-known teachers. It is unlikely that these eponymous individuals intended to form schools in their names; but certain schools, even though originally inchoate, began to share a common interest in a body of legal interpretation that seems to have originated with a particular founder and that was expounded on and developed by his subsequent followers.
Islamic legal theory seems to have had its origins in different regional centers under the early dynasties. The most important center, perhaps not surprisingly, was apparently Medina, but Iraq (Basra and Kufa) and Syria (Damascus) also witnessed important traditions of interpretation. Each center developed its own ways of understanding and interpreting the law that were undoubtedly connected to the local traditions found therein. Although many different schools of legal thought emerged in these centers, over time they consolidated into only four main schools, which survive today. One of these schools is associated with Kufa and Abu Hanifa (d. 767), and the other three are associated with Medina and three individuals: Malik ibn Anas (d. 795), Muhammad ibn Idris al-Shafi
ʿi (d. 822), and Ahmad ibn Hanbal (d. 855).
By the end of the tenth century, the four schools associated with these four individuals had so crystallized their legal positions that no further legal schools emerged thereafter. This certainly does not mean that no further legal speculation occurred, only that such speculation largely took place within the parameters established by these particular schools.
The differences between these schools should not be exaggerated. Each recognizes the others as orthodox, and although they may differ slightly on certain minor points (e.g., certain points of taxation), they all agree on the four usul al-fiqh (principles of jurisprudence): the Quran, the Sunna, consensus, and analogy. However, the legal rulings produced by the various courts associated with these schools did more than anything to shape Muslim life.
THE HANAFI MADHHAB
The Hanafi school, like the other three Sunni schools, was the product of a process that went on for centuries. This process most likely involved the gradual recognition of the authority of a school’s eponym, acceptance of the school’s legal views as valid, a sense of affiliation to the school, the application of the school’s legal teachings and rulings by
qadis (judges) in court, and so on. It is now widely believed that the four schools’ formative period ended as late as the tenth century, by which point they had acquired all their central elements and reached maturity.
21 The spread of these schools was contingent on government support in particular regions as well as on individual jurists’ community and tribal connections.
22Of the four schools, the Hanafi school is the largest and generally considered to be the most liberal in terms of its use of reason and interpretation of the law. Early on it stressed the importance of
raʾy (personal opinion) in deriving legal rulings; however, with time, this principle largely fell out of use in favor of a reliance on past authority. Its founder, Abu Hanifa, is often credited with perfecting the principle of
qiyas, analogical reasoning, in Islam. Today this school is the dominant
madhhab among Muslims in Central and western Asia (Afghanistan to Turkey), Lower Egypt (including Cairo), and the Indian subcontinent.
THE MALIKI MADHHAB
The second oldest legal school is associated closely with Malik ibn Anas, who played an important role in the transmission of many hadith. The Maliki school had its origins in Medina, but it spread in the generations following him. It seems to have been an attempt to follow a more traditionalist form of jurisprudence compared to the Hanafi school, but without the rigid dogmatism and avoidance of power of the more conservative Hanbali school.
23 This
madhhab is today prominent in Upper Egypt and throughout North Africa.
THE SHAFIʿI MADHHAB
We have already encountered the importance of al-Shafiʿi in the development and systematization of fiqh. He is largely responsible for the standardization encountered in all the schools. He was also responsible for replacing the more independent legal reasoning associated with ijtihad with the more conservative notion of ijma, consensus. The madhhab associated with his name is found today mostly among Muslim communities in Southeast Asia, southern Arabia, southern Egypt, and the Indian Ocean.
THE HANBALI MADHHAB
The most conservative of the four schools in terms of its reliance on tradition, the Hanbali
madhhab, is associated with Ahmad ibn Hanbal, a poor individual who spent time in jail for defying the caliphal decree to assent to the notion of the Quran’s createdness.
24 His refusal and time in jail, where he was reportedly tortured, captivated the imagination of many and seems to have been the impetus for the eventual overthrow of a legal status quo that stressed reason and personal opinion in favor of a perceived strict adherence to scripture and hadith. This school would play a large role in the formation of more conservative or fundamentalist movements in later centuries—such as the Wahhabis/Salafis (see
part IV). It is the dominant legal school in the Arabian Peninsula and Persian Gulf states.
The existence of these various schools further reveals the diversity in the Islamic world. Yet, despite this diversity, many commentators, both non-Muslim and Muslim, insist on referring to sharia law as if it were a monolith.
Like their Sunni counterparts, Shi
ʿi legal scholars acknowledge the Quran and the Sunna as authoritative sources. They expand the concept of Sunna, however, to include not just Muhammad, but also the Twelve Imams. The Shi
ʿi law schools tend to differ from one another based on their particular denomination. So, for example, Twelvers, who believe that the Twelfth Imam is in occultation, have their own
madhhab, and the Isma
ʿilis, who believe that there is an uninterrupted succession of living Imams, have their own. The most prominent Shi
ʿi
madhhab is the Ja
ʿfari—a Twelver legal school named after the sixth Imam, Ja
ʿfar al-Sadiq (702–765). In Twelver Shi
ʿism, the concept of
ijtihad has remained open; legal scholars are largely responsible for interpreting the Twelfth Imam’s will until he returns in the messianic era.
25Al-Azhar, founded in 970, represents the oldest and most venerable institution of learning and jurisprudence in the Sunni world. Its mission includes the propagation of Islam throughout the world, including appointing and training individuals in the proselytization (
dawa) of non-Muslims. Its
ulama render legal opinions (fatwas) on disputes submitted to them from all over the Sunni Islamic world regarding proper conduct, whether for individuals or for society at large (recent examples include the illegality of suicide bombing and the prohibition against female circumcision).
In 1961, Nasser established al-Azhar as a university and introduced a wide range of secular faculties, such as economics, medicine, and engineering. An Islamic women’s faculty was also added. In 1959, the rector of al-Azhar, Mahmud Shaltut (1897–1963), issued a fatwa to establish a
taqrib (rapprochement) between Sunni and Twelver Shi
ʿism. Shaltut, generally considered to be a modernist and a reformer, argued that the legal school of Twelver Shi
ʿism—the Ja
ʿfari
madhhab—should be recognized as one of five acceptable traditions of interpreting the law (in addition to the Sunni Hanafi, Maliki, Shafi
ʿi, and Hanbali schools). Needless to say, many on both sides have disagreed with Shaltut, especially on topics such as marriage, divorce, and inheritance.
THE EMERGENCE OF THE MEDIEVAL
ISLAMIC UNIVERSITY
Institutions of learning (madrasas) did not exist when Islam was born. Their early formation is most likely traceable to the early Islamic custom of meeting in places—for example, mosques—to discuss any number of religious issues. Those seeking guidance tended to gather around those more knowledgeable than themselves, and these informal teachers later became known as shaykhs, an honorific title meaning “elder.” These shaykhs began to hold regular religious education sessions, which gradually formed into the institution of the madrasa.
The oldest such madrasa was the Jamiʿat al-Qarawiyyin established in 859 in the Fez, Morocco. In 970, the famous al-Azhar was founded in Cairo. During the late Abbasid period, Nizam al-Mulk, the Seljuk vizier, established the madrasa nizamiyya (named after himself), which formed the basis of the system of state madrasas in various Abbasid cities.
During the twelfth to fourteenth centuries, many of the madrasas taught what we would consider to be both religious subjects (e.g., fiqh [jurisprudence]) and secular subjects (e.g., logic, philosophy). It is significant to note, however, that madrasas were not centers of advanced scientific study, something that was usually carried out by scholars working under the patronage of a royal court. The madrasa curriculum varied widely and was often contingent on the wishes of either the founder or the patron.
Some scholars have noted parallels between madrasas and medieval European universities, inferring that the latter might well have been influenced by the former.
* Many, however, argue that they merely developed at the same time, but that one did not necessarily influence the another.
*See, for example, George Makdisi,
The Rise of Colleges: Institutions of Learning in Islam and the West(Edinburgh: Edinburgh University Press, 1981).
This chapter has presented a survey of Sunni Islam as it emerged out of the legal tradition of the early period. Although the authoritative and ideological impetuses for both Sunnism and Shi
ʿism were most likely present at the death of Muhammad, it is imperative to remember that what would eventually emerge as the two main branches of Islam did not exist at the beginning. On the contrary, both took centuries to crystallize, at times overlapping with each other, at other times defining themselves in explicit opposition to each other.
Chapter 5 charted the rise of Shi
ʿism in the sectarian battles surrounding the successorship of Muhammad, and this chapter has charted the role of law and legalism in the formation of Sunni Islam.
Chapter 7 describes yet another possible paradigm of early Muslim religiosity, which, like the Shi
ʿi and the Sunni, would emerge in the aftermath of Muhammad’s death and eventually form as a full-blown movement.
NOTES
SUGGESTIONS FOR FURTHER READING
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——. “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies 16, no. 1 (1984): 3–41.
Hurvitz, Nimrod. The Formation of the Hanbalism: Piety into Power. London: Routledge, 2002.
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Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th–10th Centuries C.E. Leiden: Brill, 1997.
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