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Law and Society >
Scholastic Contributions to Legal Thought

Hanafi application and interpretation of law is distinguished by its rationalist tendency and to some extent by its theoretical leanings in that it deals not only with actual issues but also with theoretical problems that are based on mere supposition. Because he was a merchant, Abu Hanifah's contributions to the law of commercial transactions are particularly noted. Abu Hanifah's legal thought is also distinguished by his emphasis on personal liberty and his reluctance to impose unwarranted restrictions on it. He thus maintained that neither the community nor the government is entitled to interfere with the personal liberty of the individual as long as the individual has not violated the law. Hanafi fiqh thus entitles a woman to conclude her own marriage contract without the consent of a guardian, whereas the other schools have stipulated the consent of a guardian as a requirement of valid marriage. The Hanafis have reasoned that the Quran (4:6) has endowed the adult female with full authority to manage her own financial affairs. This ruling has been extended by way of analogy to marriage. The majority of jurists of the leading schools, however, have considered this an “analogy with a difference” (qiyas ma al-fariq), which treats two different things (property and marriage) on the same footing, and therefore invalid. But Abu Hanifah called for equality (kafaa) in marriage and entitled the woman's guardian to seek annulment of a marriage in the event of a wide discrepancy in the socioeconomic status of the spouses. Equality is not a requirement according to the other leading legal schools simply because the guardian's consent is, according to them, a prerequisite of a valid marriage contract. Moreover, Abu Hanifah refused to validate interdiction of the foolish (safih) or the insolvent debtor on the analysis that restricting the freedom of these individuals is a harm greater than the financial loss that might otherwise occur. Abu Hanifah also held that no one, including a judge, may impose restrictions on an owner's right to the use of his or her property, even if that property inflicted harm on another person, provided that the harm is not exorbitant. Furthermore, because the judge cannot restrict the owner's liberty, the owner would not want to restrict his or her own liberty either. A charitable endowment (waqf) of one's personal property is consequently not binding on the owner, nor on his or her legal heirs. In other words, the owner or dedicator of endowed property is at liberty to revoke the endowment and thereby remove the self-imposed restriction on his or her right of ownership. The other legal schools disagree, mainly because they consider a charitable endowment as a binding commitment that the dedicator of the property must observe, once it has been duly instituted.

In one of his widely quoted statements, which represents a defining principle of the Hanafis, Abu Hanifah declared: “Whenever the authenticity of a hadith is ascertained, that is where I stand.” A more general statement, also attributed to Abu Hanifah, is: “When you are faced with evidence, then speak for it and apply it.” Consequently, it is evident that on occasions Abu Hanifah's disciples have differed with some of the rulings of the imam on the basis of newly uncovered evidence, often stating that the imam himself would have followed it had he known of it. A ruling by a disciple that differs from that of the imam is thus still regarded as a ruling of the school, sometimes in preference to that of the imam. Another saying of Abu Hanifah that represents another Hanafi principle is: “No one may issue a verdict on the basis of what we have said unless he ascertains the source of our statement.” These eminently objective guidelines were upheld during the era of ijtihad, but the ulama of subsequent periods departed from the spirit of that guidance. The early nineteenth-century Hanafi jurist Ibn Abidin thus stated the new position of the school in the following terms: “A jurist of the later ages may not abandon the rulings of the leading imams and ulama of the school even if he sees himself able to carry out ijtihad, and even if he thinks that he has found stronger evidence. For it would appear that the predecessors have considered the relevant evidence and have declared their preference.” The only exception here is made for “situations of necessity,” in which case the jurist may give a different verdict to that of the established ruling of the school, if this provides a preferable solution to an urgent issue that is not adequately covered by an established precedent of the school.

The renowned work Al-Muwatta (The Straight Path) of the eighth-century theologian Malik ibn Anas al-Asbahi is the earliest complete work of fiqh on record. It relies heavily on the hadith, so much so that many have considered it to be a work of hadith. Because it uses the hadith as basic evidence for juristic conclusions, however, it is rightly classified as a work of fiqh. Notwithstanding his leading position in the Traditionist camp (Ahl al-Hadith), Malik relied extensively on opinion (ray)—in some cases he did so even more than representatives of the other leading schools. Malik is the chief source of the two important doctrines of public interest and blocking the means, both of which are eminently rational and rely mainly on personal reasoning. Maliki jurisprudence also attempted to forge a closer link with the practicalities of life in Medina and attached greater weight to social customs than other jurists did. This is borne out by its recognition of the Medinan consensus as a source of law, a concept that is advanced only by the Maliki school. Malik thus validated, on this basis, using the testimony of children in cases of injury, provided they have not left the scene of the incident. He also held that the wife of a missing husband may seek judicial separation after a four-year waiting period. Maliki law also recognized judicial divorce on the grounds of a husband's injurious treatment of his wife. The majority ruling entitles the wife to judicial relief, whereby the court may punish the husband; Maliki law ruled that if the treatment in question amounted to injury (darar), the wife could request dissolution of the marriage on that basis. Another Maliki contribution in this area is a type of divorce known as khul, in which the wife proposes dissolution of marriage against a financial consideration, usually by returning the dowry she received from her husband. Because the Quran validates khul (2:229), it is recognized by all the legal schools, but it can only be finalized with the husband's consent. Maliki fiqh took this a step further by ruling that if there are irreconcilable differences the court may finalize the divorce even without the husband's consent. By the late twentieth century the Maliki law of divorce had generally been adopted in the reformist legislation of many Muslim countries.

Scholastic Contributions to Legal Thought

The Maliki school of law, which is prevalent in North Africa, prohibits an individual from appointing himself the administrator of a pious endowment, and most madrasas there were sponsored by the ruler, the only person who could afford such large sums. The Ben Yusuf Madrasa at Marrakesh, the largest in the Maghreb, was founded by the Saadian ruler Abdallah al-Ghalib in 1564–65.

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Muhammad ibn Idris al-Shafii's impact, as founder of the Shafii school of law, on the development of Shariah is most noticeable in the area of the methodology of law. His contribution is manifested by his pioneering work, the Risalah, in which he articulated the legal theory of usul al-fiqh, which consequently emerged, around the early ninth century, as one of the most important disciplines of learning in the history of Islamic scholarship. Al-Shafii's role in articulating the methodology of law has often been compared with that of Aristotle in logic. He maintained the authority of Sunna through his vision of the basic unity of the revealed sources came and close to saying that rejecting the Sunna also amounted to rejecting the Quran, and that accepting the one and rejecting the other was untenable. He took his teacher, the theologian Malik, to task for placing undue emphasis on the Medinan consensus and the precedent of the Prophet's Companions at the expense of the Sunna of the Prophet.

In its general orientation Shafii law takes an intermediate posture between the Traditionist stance of the Maliki school and the pragmatism of the Hanafis. Al-Shafii took an objective stand on issues at a time when the Traditionists and Rationalists were engaged in bitter controversies. He was critical of Malik's validation of unrestricted public interest and of Abu Hanifah's frequent concession to specific at the expense of general principles. Al-Shafii's approach to the interpretation of contracts and verification of their validity was almost entirely based on the form rather than the intent of a contract. He thus overruled inquiry into the intention of the parties, even in circumstances that might arouse suspicion. For example, a man is thus within his rights in buying a sword, even if he intends to kill an innocent person with it. A man may likewise buy a sword from someone he saw using that sword as murder weapon. Contracts and transactions are therefore to be judged by their obvious conformity to the law, not by a mere suspicion that they may have violated it. Al-Shafii thus understood the Shariah to be concerned with the evident manifestation of human conduct and maintained that the judge and jurist were not under duty to inquire into the hidden meaning of the text or into the thoughts and motives of individuals. This reliance on the manifest form of conduct, contracts, and transactions is not peculiar to al-Shafii, as the Hanafis have also shown the same tendency, but al-Shafii exhibited it more frequently than most.

Al-Shafii maintained that a jurist should not hesitate to change his previous verdict (fatwa) if that would make a better contribution to the quest for truth. Thus, it is noted that he frequently changed his verdicts, and he sometimes recorded different rulings on the same issue. If, for example, a man deceives a woman by presenting her with a false family pedigree, the man is liable to a deterrent (tazir) punishment, such as being whipped, imprisoned, or fined. Then two additional views are recorded on the same issue from the imam and neither is given preference. The first view entitles the wife to choose either to continue the marriage or to separate. The second view says that the marriage is null and void.

Notwithstanding the common perception or stereotype of the Hanbali school as the most restrictive of the leading legal schools, Hanbali jurisprudence is in some respects more liberal than most. This is indicated by its extensive reliance on considerations of public interest. The imam ibn Hanbali issued a verdict, for example, that permitted compelling the owner of a large house to give shelter to the homeless. He also validated compelling workers and craftspeople who join together to deprive the public of their services to continue to provide those services at a fair wage to avoid inflicting hardship on society. The Hanbali school also takes a considerably more open view of the basic freedom of contract than other schools do. The legal schools differ on whether the norm in contract is permissibility, prohibition, or an intermediate position between the two. The majority tend to be restrictive in maintaining that the agreement of parties creates the contract, but the contract's requirements and consequences are independently determined by Shariah. The parties therefore are not at liberty to alter the substance of these nor to circumvent them in a way that would violate their purpose. The parties making the contract do not create the law but only a specific contract; their stipulations and terms of agreement should therefore be in conformity with the provisions of Shariah. The schools differ over details, however. The Malikis and Hanafis tend to take a moderate position by making many exceptions to the basic norm of prohibition. Similarly, the Shafii position, like that of the Zahiris, tends to proscribe altering the basic postulates and attributes of contracts through mutual agreement. The Hanbalis maintain that the norm regarding contracts is permissibility (ibaha), which prevails in the absence of a clear prohibition in the Shariah. The reason is that the Quran has only laid down the general principle that contracts must be fulfilled (Quran 5:1), and that they must be based on mutual consent (Quran 4:19). Because the Lawgiver (God) has not specified any requirements other than consent, consent alone is the validating factor. The will and agreement of the parties can therefore create binding rights and obligations.

The principle of permissibility under Hanbali law can also form the basis for unilateral obligation, which means that the individual is free to commit himself or herself in all situations in which this principle can apply. Thus a man may validly stipulate in a marriage contract that he will not marry a second wife. Because polygyny is only permissible (that is, it is not required) under the Shariah, the individual is free to make it the subject of stipulation. The other legal schools disallow this, saying that the Shariah has made polygyny lawful, a position that should not be circumvented or nullified through contractual stipulation. Therefore, any stipulation that seeks to do so is not binding. Ibn Hanbal stated that stipulations in a marriage contract must be strictly observed, even more so than in other contracts. Consequently, when one spouse fails to comply with the terms of the agreement, the other spouse is entitled to seek the annulment of the contract.

Shiite law permits temporary marriage (mutah) for any period of time up to the maximum of ninety-nine years. Under Shiite law, temporary marriage is a contractual arrangement whereby a woman agrees to cohabit with a man for a specified period of time in return for a fixed remuneration. This arrangement does not give rise to any right of inheritance between the spouses, but the children are legitimate and entitled to inheritance. Sunni law prohibits temporary marriage altogether. The differential rulings of Sunni and Shiite law relate to the interpretation of verses in the Quran (2:236; 4:24); because mutah can mean both “temporary marriage” or a “gift of consolation” given to a divorced woman, the Sunnis have upheld the latter meaning and the Shiites the former. The Prophet himself permitted mutah in the early years of Islam, but he later declared it forbidden, according to Sunni but not according to Shiite reports in the Prophetic hadith.

Another area in which Shiite law differs significantly from its Sunni counterpart is the system of priorities in inheritance. Male agnates—such as the father's father, germane brothers (who share both parents) and consanguine brothers (who share a father but have different mothers), and paternal uncles of the deceased—are often entitled to a share of the inheritance, even if there are closer female relatives, under Sunni law, but they are likely to be excluded from inheritance under Shiite law. Whereas Sunni law tends to uphold the basic concept of the extended family, Shiite law rests on the notion of the nuclear family, consisting of parents and lineal descendants. Under both systems the son of the deceased enjoys the same entitlement, but all other male relatives, particularly the collaterals, are often much less favorably placed under the Shiite law. The divergent systems of Sunni and Shiite succession are premised on their respective political and theological doctrines. For example, the principle of Shiite succession that any lineal descendant, particularly the child of a daughter, has complete priority over all collaterals reflects the Shiite view that the political title of the Prophet was properly inherited by his lineal descendant, through his daughter Fatima, not by the agnate collaterals through the Prophet's uncle al-Abbas ibn Abd al-Muttalib (566-ca. 653).

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