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Law.

By:

Norman Calder, Joseph A. Kéchichian, Farhat J. Ziadeh, Abdulaziz Sachedina, Ann Elizabeth Mayer, Joseph A. Kéchichian, Intisar Rabb, Intisar A. Rabb, Jocelyn Hendrickson

Source:

The Oxford Encyclopedia of the Islamic World Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

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View Archived Article Click link to access earlier form of this article as published in the Oxford Enyclopedia of the Modern Islamic World

Law.

[To treat the interaction between Islamic law and religion, this entry comprises four articles:

• Legal Thought and Jurisprudence
• Sunnī Schools of Law
• Shīʿī Schools of Law
• Modern Legal Reform

The first surveys the historical development of religious law in Islam; the second and third trace the rise of schools of law in the Sunnī and Shīʿī traditions; and the last present an analysis of legal reform in the Muslim world in the nineteenth and twentieth centuries. For discussion of more specific fields of Islamic law, see Criminal Law; Family Law; Public Law. See also International Law

Legal Thought and Jurisprudence

The idea of divine law in Islam is traditionally expressed by two words, fiqh and Shari῾ah. Fiqh originally meant understanding in a broad sense. The specialist usage, meaning understanding of the law, emerged at about the same time as the first juristic literature, in the late eighth and early ninth centuries. All efforts to elaborate details of the law, to state specific norms, to justify them by reference to revelation, to debate them, or to write books or treatises on the law are examples of fiqh. The word connotes human and specifically scholarly activity. By contrast, Shari῾ah refers to God's law in its quality as divine. Loosely used, it can indicate Islam, God's religion. It refers to God's law as it is with him or with his Prophet, or as it is contained (potentially) within the corpus of revelation. Practitioners of fiqh (the fuqaha'; sg., faqih) try to discover and give expression to the Shari῾ah. For Muslims, the Shari῾ah evokes loyalty and is a focus of faith; fiqh evokes at best respect for juristic scholarship and for a literary tradition—and, among some modern thinkers, distaste for dry‐as‐dust legalism. The word Shari῾ah is sometimes used in place of fiqh, in which case its positive connotations will be transferred to the scholarly tradition; it also has been applied to actual bureaucratic systems thought to conform adequately to the norms expressed in theoretical writings—always a matter of perception. Western designation of the Muslim juristic tradition as “Islamic law” has led to the emergence, perhaps in the late nineteenth century, of the calque (realized in Arabic as al‐qunun al‐Islami), and now part of the vocabulary in all Muslim countries. This phrase, although applied to the tradition as a whole, carries many of the connotations of “legal system” in a Western sense, related to the bureaucratic structures of a nation‐state. Such ideas have now permeated much Muslim thinking about the law.

Juristic Schools and Hermeneutical Traditions.

The traditional processes of juristic understanding depend on a theological construct that is presented as history. It states that the words and actions of the prophet Muhammad (his sunnah), being an embodiment of the divine command and an expression of God's law (Shari῾ah), were preserved by the companions of the Prophet and their followers in the form of discrete anecdotes (hadith). These were transmitted from generation to generation, inspiring first discussion and then systematic juristic thinking (fiqh). Beginning in about the mid‐eighth century, a number of masters made distinctive contributions to the discipline that stimulated the emergence of separate traditions or schools. The most important masters for the Sunnis are Abu Hanifah (d. about 767 ), Malik ibn Anas (d. 795 ), Muhammad ibn Idris al‐Shafi῾i (d. 820 ), and Ahmad ibn Hanbal (d. 855 ), associated respectively with the Hanafi, Maliki, Shafi῾i, and Hanbali schools. The four Sunni schools acknowledged one another and gave more or less qualified recognition to a number of other short‐lived schools that emerged within Sunnism; the most important was probably the Zahiri (Literalist) school, whose major exponent was ῾Ali ibn Hazm (d. 1064 ).

Of sectarian groups, only the Ithna ῾Ashari (or Imami) Shi῾ah generated a continuous and creative juristic tradition that matched the Sunni traditions. They looked back to the sixth imam, Ja῾far al‐Sadiq (d. 765 ), as a founding figure. The Zaydis, Kharijis, and Isma῾ilis all produced minor traditions.

Development of the law within the schools can be seen to depend on two major hermeneutical principles. The first, the synchronic principle, required that any formulation of the law, at any time, must be justifiable by reference to revelation. The second, the diachronic principle, was equally important, although frequently overlooked by observers and possibly underestimated by some practitioners. It required that participants in a school tradition, whether Sunni or Shi῾i, preserve loyalty to the tradition by taking into account the interpretative achievement of older masters; the law had to be justifiable by reference to the continuity and established identity of the school. Muslim jurists were not, as individuals, in solitary and direct confrontation with revelation: they found their way back to the meaning of revelation through tradition. This principle was a source of strength and flexibility, for the tradition held the accumulated experience of the community and gave it a sophisticated literary form. It was, nonetheless, sometimes attacked. Within Sunnism, the Zahiris objected to precisely this feature of juristic thought and advocated instead a return to a literal reading of the sources. The same mood, if not the same extreme, is expressed in the Salafi (Primitivist—the world salaf refers to the earliest generations of Islam) orientation associated with Ibn Taymiyyah (d. 1328 ), and perhaps in the Akhbari movement within Imami Shiism. All these movements evince distrust of the complexity and indeterminacy expressed in the ongoing dominant traditions.

Revelation in the classical period meant the canonical collections of hadith (the Shi῾ah and the Sunnis had different collections) and the Qur'ān. These two were equal qua authority, although the Qur'ān was superior in its nature and origins (word of God, miracle). The hadith collections, by virtue of their size alone, dominated the hermeneutical process, but the relationship between Qur'ān and hadith was difficult to express. Some jurists accepted that the sunnah might “abrogate” the Qur'ān; others preferred to say that the sunnah “passed judgment” on the Qur'ān, or that it “clarified” and “explained.” There were variant views within schools. Whatever the preferred wording, none would disagree with the statement attributed to the Syrian jurist Awza῾i (d. 774 ) that the Book is in greater need of the sunnah than the sunnah is of the Book. The vitality, complexity, and exuberance of fiqh literature—and many of the fundamental norms of the law—are unthinkable except in relation to the large body of revelation constituted by hadith.

Western Scholarship on Islamic Law.

Modern historians have not generally accepted the traditional account of the origins of Islamic law. They have produced an important alternative account, associated with the names of the three scholars Ignácz Goldziher ( 1850 1921 ), Joseph Schacht ( 1902 1969 ), and John Wansbrough ( 1928 2002 ). Goldziher demonstrated that historical and theological hadith could not be accepted as reflecting the lifetime of the Prophet, but must be the product of dispute within the community throughout the first and second centuries after the Hijrah. Schacht extended this insight to include juristic hadith, perceived by him as not a cause but a product of juristic debate in Muslim communities. Wansbrough has argued that the Qur'ān, too, is not a product of the Prophet's lifetime but a liturgical reflection of two hundred years of community worship and sectarian debate. For this tradition of scholarship, revelation is not an event but a process; its creative agent is not the Prophet but the community (or communities); and its geographical locus is not the Hijaz but the Muslim cities of North Africa, Syria, and Iraq.

With specific regard to the juristic traditions, Schacht argued that these began as local traditions in Madinah, Basra, Kufa, and other cities, reflecting local practice at a greater or lesser distance. Even if the local traditions were claimed to be prophetic in origin (which is likely), the idea that legal norms must be related directly to prophetic hadith emerged only gradually, as a result of polemical debate among different communities or segments of community. The real architect of the classical hermeneutical system, according to Schacht, was Shafi῾i. In works attributed to him are found the first systematic arguments that defend norms by reference to hadith or derive norms directly from them. His Risalah contains the first general account of the methodology of relating law to revealed texts. Many Western scholars and Muslims have reacted to Schacht's theories with dismay and have tried to reassert the core of truth that (it is claimed) must lie behind the traditional accounts of the origins of Islam and of Islamic law.

Modern scholarship has made little progress in describing the characteristics of Islamic law in the classical period or in providing a sensible and justified periodization. From the tenth century to the nineteenth, the formal structures of juristic literature, and many specific statements, imply that the Shari῾ah is a set of static and unchanging norms. This is an illusion deliberately contrived to stress diachronic continuity and synchronic harmony with revelation. The literature in fact admits (to a degree) the reality of development, for example, in ubiquitous reference to the moderns and the ancients (al‐muta'akhkhirun, al‐mutaqaddimun). Western scholars have not found it easy to describe or assess this development. Failing to find a terminology that will uncover the purpose or acknowledge the degrees of openness and creativity that characterize hermeneutical traditions of this kind, they have perpetrated a number of errors. At the most general level, they have described nearly all of the tradition in terms such as decline, decay, failure, or ankylosis. More specifically, Schacht, in an uncharacteristically muddled set of arguments, asserted that the “closing of the door of ijtihad,” meaning an end to independent reasoning in the law, began about 900. He may have intended something sensible, but the pernicious results of these comments have haunted academic descriptions of Islamic law ever since; recent studies suggest improvement.

Juristic Literature.

The literature of fiqh is of two kinds, furu῾ al‐fiqh (branches) and usul al‐fiqh (roots). It is sometimes said that works of the latter type explore the four sources (or roots) of the law, namely, Qur'ān, sunnah, consensus (ijma῾), and analogical reason (qiyas). This is an indigenous but inadequate description. Such works do contain a definition of revelation, which may be extended to include the words and actions of the companions, but their main purpose is to describe the intellectual structures that can be brought to bear on revelation for the purposes of interpretation. These begin with linguistic and rhetorical sciences, usually dealt with under simple antithetical headings: general and particular, command and prohibition, obscure and clear, truth and metaphor. With regard to hadith alone, the epistemological categories of multiple and single transmission (tawatur and ahad, with only the former giving certain knowledge) are discussed. The workings of abrogation (naskh), the application, ramifications, and limitations of analogical argument, and the value and limits of consensus, are all discussed, along with a variable body of other materials. The whole set of interpretative structures is brought together in the idea of ijtihad. As a juristic term, this means the exertion of the utmost possible effort to discover, on the basis of revelation interpreted in the light of all the rules, the ruling on a particular juristic question. The theory of ijtihad in its several forms concedes that there will be variant views on all but the fundamental structures of the law. By acknowledging dispute, it preempts its capacity to divide. It justifies the authority of the fuqaha', who alone have the right to give rulings, which must be obeyed by the masses. Finally, it controls and justifies intellectual play and so permits the remarkable florescence of juristic literature that characterizes all Islamic societies down to the nineteenth century (and in some areas beyond it).

In spite of many differences of detail, the broad structures and all the major topics of usul works are the same for Sunnis and Shi῾ah. Initially resistant to the idea of ijtihad, the Shi῾i tradition embraced it in the works of ῾Allamah al‐Hilli (d. 1325 ), and, in spite of internal disputes, they have made it a central part of their juristic thinking. The Shi῾ah also lay considerable theoretical stress on the independent capacity of the intellect to make moral and ethical judgments, but this scarcely affected the overall structure of their works.

The literature of furu῾ consists fundamentally of norms that regulate (or appear to regulate) all areas of community ritual and public social life. They are usually divided into ῾ibadat (rituals) and mu῾amalat (social relations). More sophisticated divisions have been attempted, but the preferred approach of the fuqaha' was atomistic, topic by topic. Only the superior significance of ritual was consistently marked by placing it at the beginning of a work. The topics of ritual are purity, prayer, alms (zakat), pilgrimage, fasting, and sometimes jihad. The remaining topics occurred in no stable order and included at least the following: marriage, divorce, and inheritance; rules of buying, selling, lending, hire, gift, testamentary bequest, agency, deposit, and so on; crimes, torts, penalties, and compensations for injury; judicial practice and procedure; rules relating to slaves, land ownership and holding, contractual partnerships, slaughter of animals for food, oaths and their effects, and more. The list was capable of considerable conceptual refinement, but it was finite and more or less closed. Its major technical terminology was static. Real developments in social life following the formation of the tradition might be caught in the network of the law through exploration and refinement of concepts, but much was not; moreover, little was lost from the tradition, even when it became irrelevant to real life. Thus the terminology and the reality of governmental administration scarcely entered works of fiqh, even when it was more or less recognized by the fuqaha' as a realization of Shari῾ah (as under the Ottomans). Conversely, the fossilized terminology for the assessment of zakat on camels was a part of fiqh, even if camels were not a part of social life.

It is usual to state that works of furu῾ classify acts according to five headings: mandatory, recommended, permitted, abhorred, and prohibited. In fact, classificatory terminology goes considerably beyond this, and the full message of the fuqaha' is more complex than is implied by this classification. There are two major types of furu῾ literature, mukhtasars (concise epitomes of the law) and mabsuts (expansive compendia, characterized by proliferation of cases, intricate conceptual subdivision, recording of variant views from within the tradition or from other traditions, and generous provision of justificatory arguments for all recorded positions). The size of the great mabsuts marks the exploratory intentions of their authors—writers who, whether for strict practical ends or from mere intellectual exuberance, drew out endlessly the possibilities of a past that was never abandoned: there were no new beginnings in the tradition of fiqh. The point was reflected in literary form: commentary, gloss, supercommentary, multiple citation of authority—the signs not of a static tradition but of a hermeneutically engaged one.

The genre of mukhtasars was necessarily less exploratory. Works of this type were marked by organizational neatness, precise clarity of exposition, and sometimes by a conceptual and syntactic dexterity that charms and dazzles as well as teaches. The Mukhtasar of the Maliki scholar Khalil ibn Ishaq (d. 1374 ) was described admiringly as “woven on a magician's loom.” Aesthetic skills and intellectual exuberance were both a part of the task of the fuqaha', and clearly relevant to the expression as well as to the understanding of God's law.

The Shi῾i tradition was not substantially different from the Sunni in literary form or in presentational technique. The differences in detail among the four Sunni schools are of roughly the same order as those between them and the Shi῾i tradition. There is, however, one systematic difference that warrants comment. Wherever the rules of the Shari῾i required a governor as executive agent, the Sunni tradition recognized the actual ruler as having this right, at least potentially. The Shi῾i tradition initially perceived these functions as having lapsed during the absence of the hidden imam. Over time, however, they interpreted the acknowledged judicial authority of the fuqaha' as extending, again potentially, to all the executive functions otherwise reserved for the imam. One result was that the Shi῾ah fuqaha' became the managers of shar῾i taxes (zakat and khums) and so acquired financial independence; this, coupled with their potential claim to political authority, led (especially in the nineteenth and twentieth centuries) to a remarkable increase in their authority and power.

Social Influences and Legal Institutions.

The structures of the law of course had practical influence. Most broadly, they influenced education. From the tenth century onward, the dominant form of publicly accessible education in all Islamic lands began with training in the Qur'ān and sunnah and ended with training in fiqh. This discipline provided the basic conceptual structures through which Muslims thought about society and God's relationship to society and demands of it. The basic rules were a part of their moral life, the constituent principles of all normative thought. The training in systematic thought and controlled argument served the purposes of the merchant classes and governing bureaucracies and ensured a homogeneous educated class across vast geographical areas.

The basic rules of the law both lived in the imaginations of Muslims and structured their activities. All Muslims knew, for example, that it was their duty to pray five times a day, that Muslims did not drink wine or take interest, that married persons who indulged in fornication were subject to death by stoning. In historical Muslim societies, of course, not all Muslims prayed five times a day; ways were found to secure access to wine and to interest; and fornication did not necessarily lead to the prescribed penalties. The interpreters of the law were both idealists and facilitators. Thus, the principle that fornication by married persons merited the death penalty was constantly restated (a sign of abhorrence), but the option of putting that penalty into effect was removed; the rules of evidence and procedure were carefully written so as to prevent the penalty from taking place. This is particularly noticeable in the Hanafi tradition, which has the longest history of practical experience and close alliance with government. (It is less obvious in the Shafi῾i tradition, which for many centuries did not aspire to partnership in government.) The prohibition on interest perhaps signaled distaste for exploitation. In practice, however, some forms of interest were required for normal economic activity; this was acknowledged by the fuqaha', who worked out legal devices (hilahs) to facilitate practice or simply affirmed that there were fair rates of interest (Ottoman Hanafi jurists in the sixteenth century usually cite 15 percent).

The point of contact, or the judgment of relevance, between theory and practice is not predictable. Different areas of the law generated different kinds of theory/practice relationships, few of which have been given serious consideration by modern scholars. Criminal law in the Shari῾ah is limited to only a few specified crimes. Exploration of these within fiqh is extensive but almost never refers to the reality of practical administration, although the fuqaha' were not unaware of the governmental systems, often based on local practice, that actually existed. Some principles of international law are articulated under the topic jihad, but the fuqaha' explored the tradition and not the needs or the desires of contemporary governors. No Sunni faqih, for example, denied the right of every individual Muslim to issue a valid and binding contract of safe‐conduct (aman) to individuals from non‐Islamic territory, yet no governing institution could ever have tolerated such practice.

The only areas of the law that were, in premodern times, systematically transformed into administrative structures were those related to the office of judge (qadi). His competence traditionally covered many aspects of family law (marriage, divorce, inheritance, testamentary bequest), the administration of charitable endowments (waqf) and the property of orphans, declaratory judgments on the significance and validity of contracts, and civil disputes. In order to make this administrative system work, there had to be compromises with theory. In the Sunni system, the governor (just or unjust) was accorded the absolute right to appoint judges and to define their spheres of competence; he also had the right in areas of juristic dispute to declare the rules that would be put into effect. Various types of judicial hierarchy emerged to ensure predictability and order in judicial decisions. Numerous subordinate officials and deputy judges derived their authority from appointment by the qadi. (In spite of the de jure illegitimacy of Shi῾i rulers, the practical situation was not very different under Shi῾i governments.)

Many aspects of civil and criminal law could not be dealt with under the norms of the Shari῾ah, and some of the norms of the Shari῾ah could not be rendered practically effective. (If the laws of evidence were preemptively stringent in the case of fornication, they were probably too easy in the case of wine‐drinking; few qadis could listen to unlimited complaints against neighbors who drank wine.) Careful definition of spheres of judicial competence was one way of dealing with these problems. But already by early ῾Abbasid times, a system of courts was required in addition to the qadis' courts, which would take a more expedient and flexible approach to shar῾i rules and might in some areas go beyond them. These were initially called mazalim (“injustices”) courts, though the nomenclature varied through time. They were administered directly by the governing bureaucracy, usually with the help and advice of trained jurists. They dealt with complaints against government officials and administered an extended criminal law that was only loosely related to Shari῾ah. Petty crimes were often dealt with by local police and market inspectors in accordance with local customs, again loosely linked to Shari῾ah.

Probably the most significant theoretical exploration of the law in relation to judicial practice, in the classical period, is contained in the Kitab adab al‐qadi of the Shafi῾i jurist al‐Mawardi (d. 1058 ), one of a long tradition of monographs on judicial authority. The most effective and complex practical exploitation of the qadi's office took place in the Ottoman Empire. Here the integration of the qadi's office into a bureaucratic structure was accompanied by a considerable expansion of the practical and administrative duties of the judge, causing the separate mazalim‐type structures to disappear.

The second major institutional office that emerged to serve the structures of fiqh was that of mufti. Originally, a mufti was any qualified mujtahid who was capable of providing reasoned responses (fatwas) to the questions of those not educated in the law. Informal muftis never disappeared, but, in the Sunni community, governmental structures often signaled official preference for some muftis over others. In the Ottoman period, officially appointed muftis became fully integrated into the structures of government. The rulings of a mufti could be issued on request to individuals, to qadis, and to agents of government, and could have broadly legitimizing effect (e.g., in respect to government policies) or, if translated into government edicts, strict practical effect (e.g., in relation to judicial practice).

The great Ottoman jurist‐administrator and grand mufti of Istanbul, Abu Sa῾ud (d. 1574 ), may be taken as representative of those jurists whose achievement in the law was thoroughly practical. He brought the real tax‐collecting activities of the empire (in practice varied and based on regional traditions) under the formal, technical terminology of fiqh. This was in part a control on arbitrary taxation, but it also provided a reasonable degree of legitimacy and authority to the working system of the day. For Abu Sa῾ud, the Ottoman system was a broad realization of the Shari῾ah, and his aim was to ensure that it was a practical, efficient, and more or less just system. This required the recognition of governmental decrees (qanuns), the promulgation of administrative rules that were not reflected in traditional fiqh (though they were felt not to contravene Shari῾ah), and decisive rulings on matters of dispute. In a fatwa, Abu Sa῾ud declared that there can be no decree of the sultan ordering something that is illegal according to the Shari῾ah, thereby committing jurists to a considerable hermeneutical task or to formal, discursive opposition. He declared that marriage without a qadi's knowledge was invalid, subsequent to the issue of a sultanic decree to that effect—thereby serving the interests of orderly administration, even though the Shari῾ah does not require any form of registration for a valid marriage. He also gave rulings in favor of the cash‐waqf (pious foundations in the form of cash). Governmental decrees confirmed the latter ruling, but in the tradition of Hanafi fiqh, the legitimacy of cash‐waqfs remained a matter of dispute.

In the Shia῾i world, though low‐ranking jurists might serve the government, the highest‐ranking jurists preserved their independence. Consolidation of theory and improvements in communication led in the nineteenth century to a strengthening of their position and the emergence of a new titulature (notably marja῾ al‐taqlid) reflecting their increasing status. They had great capacity for political gestures, usually marking their dissociation from government, but, significantly, no opportunity for the mundane, bureaucratic, participatory legitimizing activities of Sunni fuqaha'.

Modern Developments.

The nineteenth century brought changes, and in many areas a gradual end, to the indigenous traditions of fiqh. New ideas from the West, a defensive analysis of Islam, and not least the emergence of secular educational systems that excluded traditional juristic studies, all helped to precipitate new approaches to the law. Muslim administrators and Muslim reformists alike began to feel that the Shari῾ah ought to be practical and to resemble Western codes. The earliest sign of movement in this direction came with the enactment of the Mecelle in 1876 by the Ottoman authorities. This was a Hanafi codification of some parts of the Shari῾ah, designed for practical purposes. It remains partially effective in some former Ottoman territories (e.g., Iraq and Israel). The Egyptian reformer Muhammad ῾Abduh ( 1849 1905 ) advocated a new, creative approach to ijtihad: a disregard of school traditions as such, and an eclectic approach to the tradition as a whole (an approach known as talfiq, “patchwork”). His aim was to define and embody in administrative and institutional forms specific rules that would serve the needs of independent Muslim communities. The Shi῾i tradition showed its ability to accommodate modern law‐making techniques when a majority of high‐ranking jurists rallied to the cause of the constitution in Iran in 1906 .

With the withdrawal of imperialist and mandate authorities from the Middle East and elsewhere, modern Muslim nations have for the most part provided themselves with practical, eclectic law codes that draw on ideas from both the Muslim tradition and the West. It is in the traditional practical areas of marriage, divorce, and inheritance that the influence of the Shari῾ah has been strongest. Some countries (e.g., Tunisia) have achieved notably progressive codes of personal status while still asserting a very creative interpretative link between the code and the tradition of fiqh. The greatest theoretician of the idea that the Shari῾ah could be a source for practical and effective codification was probably the Egyptian jurist ῾Abd al‐Razzaq al‐Sanhuri , who played a part in drafting new civil codes for more than one Arab country. The magnitude of the achievement of modern Muslim states in creating and implementing their new legal structures is rarely appreciated outside legal circles, but it is an achievement of immense importance and complexity, and not one that is unduly at odds with the practical history of the Shari῾ah.

If codification is one aspect of the heritage of nineteenth‐century reform, another, more complex, is Islamic fundamentalism. This term is used in many ways, not always carefully. In the history of religious doctrine it can describe those movements that deny the authority of tradition and overleap the accumulated historical and intellectual experience of the community to return to the sources, the early generations, the fundamentals. In this sense, it is possible to recognize in the history of Islam a recurring fundamentalist tendency, which can be associated with, for example, the Zahiris (Literalists) and the Salafis (Primitivists). The word fundamentalist is also used to describe groups that espouse radical or activist political views. It is not accidental that many of these groups, from the Wahhabis of the eighteenth century to the Muslim Brothers of the twentieth, have also been fundamentalist in a strictly doctrinal sense. They are explicitly Salafi, and they look back to the great Salafi theoretician Ibn Taymiyyah as symbol and hero. Here, too, Muhammad ῾Abduh bears a measure of responsibility for initiating a tradition of distaste for the Muslim intellectual traditions (as well as for the mystical experience of the Sufis). Sayyid Qutb, the ideologue of the Muslim Brothers executed in Egypt in 1966 , was in this respect an intellectual descendant of ῾Abduh. For him, in the end, all of Islamic history after the early generations was only a continuation of the Jahiliyyah, the Age of Ignorance, and the works of the fuqaha' were something like a betrayal of the existential task they should have executed. In his work of Qur'ānic exegesis, Fi Zilal al‐Qur'ān, he frequently made the point: “The Shari῾ah has been revealed in order to be implemented, not to be known, to be studied, and to be changed into culture in books and treatises” (Beirut, 1971 , vol. 1, p. 746). This reverses the priorities and denies the achievement of an ancient juristic tradition of thought and literature; and it promotes the word Shari῾ah as if it designated a blueprint for the Islamic state. In this form, Shari῾ah could be part of a call to political action, and it was subject to the usual constraints of political expediency. This has sometimes taken the form of promoting fragments of the law as symbols of islamization. For example, in Sudan in 1983 , President Nimeiri enacted the Islamic canonical penalties for fornication, wine‐drinking, and other offenses. Politically insensitive at best, these moves (reenacted and extended later by an Islamic government) were also a trivialization of the tradition of fiqh.

The Islamic Revolution in Iran ( 1978 1979 ) is sometimes described as a fundamentalist movement, but it is not so in the strictly doctrinal sense. The theory that underlay the Ayatollah Ruhollah Khomeini's propaganda and provided him legitimacy in his own eyes and in those of his followers was central to the tradition of juristic thought in Shi῾i Islam. Khomeini built on the tradition; he did not abandon or cheapen it. And the tradition was not in the end incompatible with substantial continuity in the constitutional and legal structures of Iran, as well as in its political institutions.

Today, the application of Islamic jurisprudence in a Muslim country may be divided into three different categories. In the twentieth century, Islamic jurisprudence was increasingly subordinate to Shari῾ah in Iran and Saudi Arabia, although in other countries it was influenced by Shari῾ah. Several contemporary constitutions mentioned the Shari῾ah even if this was not an indication of its influence. In Algeria, for example, the Shari῾ah was not specifically mentioned as a source of jurisprudence, yet mixed marriages were prohibited, as in most other Muslim societies. Shari῾ah was quoted as one of the sources in Kuwait and Bahrain, but was considered the “main” source in Qatar and Syria, and even as the “only source” in Mauritania. Many modern Muslim constitutions did not mention the Shari῾ah—Algeria, Burkina Faso, Cameroon, Chad, Djibouti, Gambia, Guinea, Guinea‐Bissau, Iraq, Mali, Morocco, Niger, Senegal, Tunisia, and Turkey—and considered their jurisprudences to be independent from Shar῾iah. In general, however, Shari῾ah law tended to be at least partially in force, even if its application varied from country to country. In 2002 , the Shari῾ah was reintroduced in Afghanistan, and in parts of Nigeria, whereas efforts toward similar adoptions were underway in Malaysia and Indonesia.

After 2001 , and especially after Islam was associated with terrorism, a fresh approach was necessary to refute vile accusations that Shari῾ah Law fostered violence. In July 2005 , over 170 leading Muslim clerics from forty different countries gathered in Amman, Jordan, to attend the First International Islamic Conference. They endorsed religious edicts that banned the declaration of any Muslim an apostate and limited such credentials to qualified clerics from the eight schools of Islamic jurisprudence. All major religious authorities signed this petition, including the Shaykh Al Azhar Muhammad Sayyid Tantawi; the Ayatollah Al Sayyid ῾Ali Al Sistani of Iraq; the Mufti of Egypt ῾Ali Juma῾a; the Mufti of the Sultanate of Oman, Ahmad Bin Hamad Al Khalili; the Mufti of the Hashemite Kingdom of Jordan, Shaykh ῾Izzeddine Al Khateeb Al Tamimi, the Shaykh Dr. Yusuf Al Qaradawi , of Egypt and Qatar, and many others affixed their approvals. Representatives from all four Sunni schools (Hanafi, Maliki, Shafi῾I, and Hanbali), the Ja῾fari Shi῾ah school, the Zayidi school, the ῾Ibadhi school of Oman, and the Zahiri school—that may be the root of current Salafi movements based on Muhammad ibn ῾Abdul Wahhab—confirmed who was a Muslim. No believer could be declared an apostate if he believed in God, his messenger, and the pillars of the faith. In a significant departure from past renditions, these scholars announced that past disagreements between ῾ulamā' were only with respect to the ancillary branches of religion (furu῾) and not the principles and fundamentals (usul). Moreover, they underscored that furu῾ disagreements required mercy, especially since variance in opinion among ῾ulamā' was a good thing. The Amman message affirmed a renewed engagement to ensure moderation, mutual forgiveness, compassion, and dialogue with others. It mobilized learned as well as mundane opinion to foster genuine tolerance among Muslims and redefined the application of law in contemporary settings.

Islamic law has been throughout the history of Islamic culture the prime focus of intellectual effort. It is a correspondingly complex affair, a structure in which several traditions of juristic thought and many types of social reality have had to be discovered to be in some kind of justificatory harmony with one another and with the texts of revelation. Its rewards as an object of study are evident. For the Muslim community, the assimilation of its messages to the needs of the current generation is, now as in the past, both an intellectual and an imaginative challenge, as well as a generally acknowledged a religious duty.

See also Consensus; Diplomatic Immunity; Faqih; hadith; Hilli, Allamah ibn al‐Mutahhar al‐ ; Ijtihad; Marja῾ al‐Taqlid; Mecelle; Qadi; Salafiyyah; Usul al‐Fiqh; and Waqf

Norman Calder

Updated by Joseph A. Kéchichian

Sunnī Schools of Law

The beginnings of the schools of law in Islam go back to the late Umayyad period, or about the beginning of the second Islamic century, when Islamic legal thought started to develop out of the administrative and popular practice as shaped by the religious and ethical precepts of the Qur'ān and the ḥadīth. The role of the Qur'ān at this very early stage can be taken for granted, but the role of ḥadīth, or traditions of the Prophet, has been subject to debate among scholars; some maintain that they became efficacious only after Muḥammad ibn Idrīs al‐Shāfīʿī (d. 820 ) insisted that they be. In the main centers of the early Islamic world, local scholars and private jurists developed their legal doctrines based on combinations of local practice, the Qur'ān, and their knowledge of the traditions, using varying degrees of analogical reasoning in the interpretation and application of the holy texts. This geographical variation thus gave rise to varying doctrines. Shāfīʿī says, “Every capital of the Muslims is a seat of learning whose people follow the opinion of one of their countrymen in most of his teachings.” He goes on to mention the local authorities of the people of Mecca, Basra, Kufa, and Syria; elsewhere he speaks of the Iraqis and the Medinese. They all followed their own doctrines based on what Joseph Schacht calls their “living traditions” and the free exercise of personal opinion, in the absence of strict rules for deriving legal norms like those elaborated by Shāfīʿī. At this stage the adage had not yet arisen that the true home of the sunnah (the model behavior of the Prophet) was Medina.

Comparatively little is known about the doctrines of the Meccans, the Basrans, and the Syrians, although we possess some documentation of the famous representative of the latter, ῾Abd al‐Raḥmān al‐Awzāʿī (d. 773 ), particularly about the laws of warfare. Of the Medinese and the Kufan doctrines we know more, possibly because they later developed into the Mālikī and the Ḥanafī schools, respectively, which have continued to this day. Shāfi῾ī, the founder of the school that carries his name, considered himself a member of the Medinese school, but he was uncompromising in taking the Medinese and other early law schools to task for not making the traditions of the Prophet supersede their customary practices. He insisted that nothing could override the practice of the Prophet even if that were attested by only a single tradition. His insistence was to have a lasting influence on the legal theory of all schools that accorded traditions a place second only to the Qur'ān in formulating rules, and that identified sunnah, previously understood as the model practice of the community, with the traditions of the Prophet. The Medinese until that time appear to have authenticated only those traditions agreed upon by the people of Medina, and to have allowed sound reason and analogy to supersede traditions. The Iraqis, who were accused by their opponents of caring little for traditions, seem actually to have been more knowledgeable about the traditions than were the Medinese, whose attitude toward traditions they shared. Still, some Iraqis, particularly Muḥammad ibn al‐ Ḥasan al‐Shaybānī (d. 804), seemed to anticipate Shāfi῾ī in insisting on the decisive role of traditions.

This article will treat the development of the various Sunni schools, four of which are extant and three extinct. It will discuss their main doctrines, their major figures, their major books, and their provenance and present locations. Although the legal theories as developed by the various jurists may be regarded as more closely related to the topic of uṣūl al‐fiqh (“roots of jurisprudence”; the bases through which practical legal rules are derived), some reference will be made to them here as well.

Ḥanafī School.

One of the geographical centers of legal thought was Kufa in Iraq. The servant and companion of the Prophet, ῾Abd Allāh ibn Mas῾ūd (d. 653 ), had been sent there by the caliph ῾Umar as a teacher and jurist. His students and theirs in turn achieved prominence as jurists; notable among them were ῾Alqamah al‐Nakha῾ī , Masrūq al‐Hamadānī , al‐Qāḍī Shurayḥ , Ibrāhīm al‐Nakha῾ī , ʿʿĀmir al‐Sha'bī , and Ḥammād ibn Abī Sulaymān (d. 738 ), who was the teacher of Abū Ḥanīfah , the eponym of the school.

Abū Ḥanīfah ( 699 – 767 ) is the agnomen of Nu'mān ibn Thābit, of Persian extraction and a native of Kufa. He first studied scholastics and then concentrated on the jurisprudence of the Kufa school while earning his living as a textile merchant. His training in scholastics coupled with his experience as a merchant imparted to him the unusual ability to use reason and logic in the application of rules to the practical questions of life, and to broaden those rules by the use of analogy (qiyās) and preference (istiḥsān). His liberal use of opinion in the formulation of analogy and preference caused his school to be dubbed the People of Opinion, as distinguished from the People of Traditions who depend on traditions in the formulation of rules—even though his school was not less knowledgeable about traditions. He was reported to have said, “This knowledge of ours is opinion; it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his opinion as we are entitled to our own.”

On the whole, the legal doctrines of Abū Ḥanīfah evidence a liberality and a respect for personal freedom that are not that pronounced among other jurists. He was the first to formulate rules concerning contracts, which reflect his attachment to the principle of freedom of contract as exemplified in the contracts of salam and murābaḥah. The former allows the immediate payment of the price of goods for future delivery, although the contract of sale stipulates the immediate exchange of an object and its price; the latter allows a merchant to sell what he had bought at the original price plus a stipulated profit, provided that usury is not involved. In the field of personal law, Abū Ḥanīfah allows a free girl who had reached her majority to marry without the intercession of a marriage guardian, although later Ḥanafī doctrine restricted that right to a woman who had previously been married. Also contrary to all other jurists, including the dominant opinion in his own school, he would not interdict the spendthrift, contending that a person who has reached majority is independent and can do as he wishes with his property.

The legal thought of Abū Ḥanīfah was transmitted by his students, four of whom achieved fame— Abū Yūsuf , Z?ufar ibn al‐Hudhayl , Muḥammad ibn al‐Ḥasan al‐Shaybānī , and al‐Ḥasan ibn Ziyād . In particular, Abū Yūsuf and Muḥammad were able to spread the influence of the school through their writings and their high positions in the ῾Abbāsid state; they were often referred to as al‐Ṣāḥibān (the Two Companions). Abū Yūsuf , whose name was Ya'qūb ibn Ibrāhīm al‐Anṣārī ( 731 – 798 ), was appointed a judge in Baghdad and later became the first qāḍī al‐quḍāt, or chief justice, with authority to appoint judges in the empire. On various occasions he differed with the opinions of his teacher, basing his decisions on traditions that may not have been available earlier. His book Kitāb al‐kharāj is in the form of a treatise he prepared for Caliph Hārūn al‐Rashīd on taxation and the fiscal problems of the state.

To Muḥammad ibn al‐Ḥasan al‐Shaybānī ( 749 – 804 ) goes the credit for writing down the legal thought of the Ḥanafī school. He was trained in the jurisprudence of the Iraqi school as well as in that of Medina, for he traveled to Medina and studied under the scholar Mālik ibn Anas, a version of whose book Al‐muwaṭṭa' was transmitted by him. Caliph al‐Rashīd appointed him qāḍī (judge) of Raqqah and later removed him, but he accompanied the caliph to Khurasan and died at Rayy. The books he compiled contain many of the detailed rules he extracted, particularly on the laws of inheritance, as well as the doctrine of his school. Often the dominant opinion of the school reflected his opinion on a disputed topic. His books have been classified into two categories: ẓāhir al‐Riwāyah, whose transmission from him has been authenticated, and al‐Nawādir, books transmitted by less reliable authorities. The first category consists of the six books Al‐mabsūt, Al‐jāmi' al‐kabīr, Al‐jāmi' al‐ṣaghīr, Al‐siyar al‐kabīr, Al‐siyar al‐ṣaghīr, and Al‐ziyādāt. These books were collected in one volume known as Al‐kāfī by Abū al‐Fad?l Al‐marwazī , better known as al‐Ḥākim al‐Shahīd (d. 955 ). This collection was later annotated in a thirty‐volume work, Al‐mabsūt, by the distinguished scholar Muḥammad ibn Aḥmad al‐Sarakhsī (d. 1090 ). This work was the basis of the Ottoman civil code of 1869 , the Mecelle (Arabic, Majallah), part of the legal reforms of the Tanzimat period. The second category, al‐Nawādir, consists of Amālī Muḥammad or Al‐kaysānīyāt reported by Shu'ayb al‐Kaysānī , Al‐raqqīyāt (cases submitted to al‐Shaybānī while he was a judge in Raqqah), Al‐makhārij fī al‐hiyal on legal fictions and devices, and five other lesser‐known collections.

Famous scholars of the next two generations include Hilāl al‐Ra'y (d. 859 ); Aḥmad ibn ῾Amr al‐Khaṣṣāf (d. 874 ), author of Al‐ḥiyal on legal fictions and devices, Al‐waqf on religious foundations, and Adab al‐qāḍī on procedure and evidence (commented on by Abū Bakr Aḥmad ibn ῾Alī al‐Ja ṣṣāṣ (d. 980 ), author of Aḥkām al‐Qur'ān; and Abū Ja'far al‐Ṭaḥāwī (d. 933 ), author of Al‐jāmi' al‐kabīr fī al‐shurūṭ on legal formularies. Still later generations produced Abū al‐Ḥasan al‐Karkhī (d. 951 ); al‐Sarakhsī, mentioned earlier; ῾Alī ibn Muḥammad al‐Bazdawī (d. 1089 ), author of Al‐uṣūl on jurisprudence; Abū Bakr al‐Kāsānī (d. 1191 ), author of Badā'i' al‐ṣanā'i῾ fi tartīb al‐sharā'i῾; and Burhān al‐Dīn ῾Alī al‐Marghīnānī (d. 1196 ), author of the famous and authoritative Al‐hidāyah, which has been the subject of many commentaries.

There followed a period of stagnation and imitation of earlier jurists in which existing works were abridged and annotated. An abridgement that received wide recognition was Al‐mukhtaṣar by Aḥmad ibn Muḥammad al‐Qudūrī (d. 1036 ). Also compiled were some fatwās, collections presenting actual or theoretical questions and answers. Chief among these were Al‐fatāwā al‐khānīyah by Qāḍīkhān Ḥasan ibn Manṣūr (d. 1195 ), Al‐fatāwā al‐khayrīyah by Khayr al‐Dīn al‐Ramlī (d. 1670 ), Alfatāwā al‐Hindīyah—compiled in India by order of the Mughal emperor Awrangzīb ʿʿĀlamgīr (d. 1707 ) and consisting of extracts from the authoritative works of the school—and Al‐fatāwā al‐mahdīyah by the Egyptian mufti Muḥammad al‐῾Abbāsī al‐Mahdī (d. 1897 ). In addition, a number of later Ḥanafī works achieved prominence in the Ottoman Empire, chief among which were Multaqā al‐abḥur by Ibrāhīm al‐Ḥalabī (d. 1549 ) and Radd al‐muḥtār by Muḥammad Amīn ibn ʿʿĀbidīn (d. 1836 ).

The Ḥanafī school is the most widespread of the existing schools in Islamic countries. The fact that it was the dominant school during the ῾Abbāsid Caliphate, owing to the efforts of Abū Yūsuf and other early Ḥanafīs, gave it an advantage over the others. Moreover, it was the official school of the Ottoman Empire, with its far‐flung dominions, and in 1869 its doctrines were enshrined in the Mecelle, or civil code, to be applied in the newly created secular (nizāmīyah) courts. Ḥanafī law, therefore, continued to be applied to Muslim personal‐status matters. It is still the official school for issuing fatwās and for application to the personal‐status matters of Sunnī Muslims in the successor states of the Ottoman Empire, including Egypt, Syria, Lebanon, Iraq, Jordan, and Israel‐Palestine. In Turkey, which is officially secular, Ḥanafī law governs religious observances. It continues to be the dominant school for application to personal‐status matters and/or for religious observances among the Muslims of the Balkans, the Caucasus, Afghanistan, Pakistan, India, Bangladesh, the Central Asian republics, and China. It is estimated that its adherents constitute more than one‐third of the world's Muslims.

Mālikī School.

This school developed in the Arabian peninsula, the original home of Islam. It was originally referred to as the School of Hejaz or the School of Medina, and its doctrines are often attributed to such early Muslims as ῾Umar ibn al‐Khaṭṭāb , ῾Abd Allāh ibn ῾Umar , Zayd ibn Thābit , ῾Abbās (the Prophet's uncle), and ʿʿĀ'ishah (the Prophet's wife). Of the early jurists of the school who achieved fame, mention may be made of Sa῾īd ibn al‐Musayyab , ῾Urwah ibn al‐Zubayr , and Abū Bakr ibn ῾Abd al‐Raḥmān . A later generation of jurists and traditionists were the teachers of Mālik, the eponym of the school. These included Rabī῾ah ibn ῾Abd al‐Raḥmān (d. c.748 – 753 ), known as Rabī῾ah al‐Ra'y or Rabī῾ah of Opinion (or of Good Judgment, as suggested by Amīn al‐Khawlī;) Nāfi' (d. 735 or 737 ), the freedman of Ibn ῾Umar; Ibn Shihāb al‐Zuhrī (d. c.740 – 742 ); Ibn Hurmuz (d. 765 ); and Ja'far al‐Ṣādiq (d. 765 ), the revered Shīʿī imam and eponym of the Ja'farī Shīʿī school of law.

Mālik ibn Anas al‐A ṣbaḥī, of Yemenite descent, was born in Medina in 713 and lived there until his death in 795, having left it only to perform the pilgrimage at Mecca. He thus epitomized the learning of the people of Medina. In his book Al‐muwaṭṭa', a collection of traditions from the Prophet, companions, and followers arranged according to the subjects of jurisprudence, he often would confirm a legal point by saying, “And this is the rule with us,” or “And this the rule agreed upon by consensus here.” It was said that Al‐muwaṭṭa' was transmitted in several versions, but only two have reached us: the version transmitted by the Ḥanafī al‐Shaybānī, mentioned earlier, and the version transmitted by Yaḥyā al‐Laythī (d. 848 ) and commented upon by al‐Zarqānī , al‐Suyūṭī , and others. Fragments of a third version transmitted by the Tunisian ῾Alī ibn Ziyād (d. c.800 ) have also survived.

Mālik was undoubtedly tradition‐bound in his legal doctrines. He would often emphasize that he would not deviate from what he had received from his teachers or from the consensus of the scholars of Medina. Sometimes, however, he utilized a form of thinking similar to analogy, which has prompted Abū Zahrah to assert that Mālik used ra'y (personal opinion) as well as qiyās (analogy) in arriving at a rule. Actually, he himself said, “As for those matters that I did not receive from [my predecessors] I exercised my reasoning and reflection (ijtahadtu wa‐nazartu) according to the course of those I have met … so that I would not deviate from the course of the people of Medina and their opinions (ārā'ihim). If I did not hear anything specifically about a matter I attributed the opinion (ra'y) to me.” Amīn al‐Khūlī explains that the word ra'y at that time did not bear its later technical meaning of opinion vis‐à‐vis analogy, but meant rather “understanding” and “good judgment.” He also considers the attribution by some authors of the technical concepts of preference (istiḥsān) and public interest (maṣāliḥ mursalah) to Mālik as rather anachronistic, because the science of uṣūl al‐fiqh was still in its infancy at that time.

In the field of law proper, the Mālikī school, compared to the Ḥanafī school, evidences some conservative attitudes, particularly with regard to women. Perhaps this reflects the conservative milieu of Medina at the time of Mālik compared to that in Abū Ḥanīfah's time. The Mālikī ruling states that no woman can be married without the consent and participation of her marriage guardian; whereas in Ḥanafī law, a guardian is necessary only for a virgin below the age of puberty, and she can repudiate the marriage upon attaining puberty. Also in Mālikī law, the father or paternal grandfather has the right to give in marriage his virgin daughter or granddaughter without her consent and even, within some limits, against her wishes; in Ḥanafī law such susceptibility to compulsion (jabr) terminates at puberty.

Mālik's students included Muḥammad ibn al‐Ḥasan al‐Shaybānī , mentioned above, and Muḥammad ibn Idrīs al‐Shāfi῾ī , the founder of the school that carries his name. His followers included Yaḥyā al‐Laythī , mentioned earlier as a transmitter of Mālik's Al‐muwaṭṭa; the Tunisian Asad ibn al‐Furāt (d. 828 ); and ῾Abd al‐Salām al‐Tanūkhī , known as Saḥnūn from Kairouan (d. 854 ). Andalusian jurists who gained fame included Abū al‐Walīd al‐Bājī (d. 1081 ), Ibn Rushd (d. 1126 ), Ibn Rushd the grandson (d. 1198 ), and Muḥammad ibn ῾Abd Allāh ibn al‐῾Arabī (d. 1148 ). Later generations of jurists included Abū al‐Qāsim ibn Juzayy (d. 1340 ), author of Al‐qawānīn al‐fiqhīyah fī talkhīṣ madhhab al‐Mālikīyah; Sīdī Khalīl (d. 1365 ), author of the authoritative Al‐mukhtaṣar; and Muḥammad ibn ῾Abd Allāh al‐Khirshī (d. 1690 ), a rector of al‐Azhar and author of a commentary on Khalīl's work. Al‐mudawwanah, compiled by Asad ibn al‐Furāt and later edited and arranged by Saḥnūn under the title of Al‐Mudawwanah al‐kubrā, has become the major reference book for the school. A concise work on law that has received some attention from Orientalists is Al‐risālah by Ibn Abī Zayd al‐Qayrawānī (d. 996 ). Mālikī jurists who attained fame in specific fields include the Egyptian Shihāb al‐Dīn al‐Qarāfī (d. 1285 ) and the Andalusian Abū Isḥāq al‐Shāṭibī (d. 1388 ) in questions of jurisprudence, Ibn Farḥūn (d. 1396 ) in legal procedure, and Aḥmad al‐Wansharīsī (d. 1508 ) and Muḥammad Aḥmad ῾Ulaysh (d. 1882 ) in fatāwā works.

Since the birthplace of the Mālikī school was Medina, it was natural that the school should spread in the Hejaz. Because of the contacts that the scholars of North Africa and Andalusia established with the scholars of Medina during the yearly pilgrimage, the Mālikī school spread to those parts and displaced the Ẓāhirī school in Andalusia where the latter, now extinct, had held sway. It continues to be the predominant school among the people of Morocco, Algeria, Tunisia, and Libya. It has also spread to upper Egypt and the Sudan as well as to Bahrain, the Emirates, and Kuwait. A number of other countries also have some Mālikī adherents.

Shāfi῾ī School.

This school was not so much the product of a geographical area as it was the result of a synthesis conducted by a single jurist who was thoroughly familiar with the doctrines of the two other schools. That jurist was Muḥammad ibn Idrīs ibn al‐῾Abbās ibn ῾Uthmān ibn Shāfi' (hence the nisbah or attribution Shāfi῾ī), whose great‐grandfather Shāfi' was a companion of the Prophet and a descendant of al‐Muṭṭalib, brother of the Prophet's ancestor Hāshim. Thus he was closely enough related to the Prophet to qualify for a stipend from the fifth of the spoils of war assigned to kinsmen, among others. Shāfi῾ī was born in Gaza, Palestine, in 767 and died in Egypt in 820 . When he was two years old, his father died, so his mother took him to Mecca to be among his kin and to preserve his noble heritage. After memorizing the Qur'ān and studying ḥadīth, he was sent to the desert where he accompanied the Hudhayl tribe, which was famous for its eloquent speech and poetic tradition. Later he traveled to Medina to study fiqh under Mālik, whose reputation had by then spread far and wide. When Mālik died, Shāfi῾ī worked with the governor of Yemen and later was taken to Iraq on the orders of Caliph al‐Rashīd to answer charges that he was an ῾Alīd sympathizer. His eloquent defense, added to a word in his favor from Qāḍī Muḥammad ibn al‐Ḥasan al‐Shaybānī , saved his life. He then applied himself to the study of Iraqi fiqh under al‐Shaybānī and read the latter's books. This opportunity to combine the knowledge of Iraqi fiqh with that of the Hejaz, added to the experience gained in his extensive travels, placed Shāfi῾ī in a good position to formulate the theoretical bases for law in his famous Al‐risālah. Al‐risālah was written in Baghdad during a second visit to that city and refined when the author moved to Egypt in 814 – 815 .

In the field of law, Shāfi῾ī continued to regard himself as a member of the school of Medina even though he had adopted the essential thesis of the traditionists that the traditions were superior in the formulation of laws to the customary doctrines of the earlier schools. Through vigorous polemics he tried to convert the adherents of the other schools to his doctrine, but they were not willing to abandon their own doctrines. However, they did accept the validity of his legal theory, which is traditionist by inspiration. Those legal specialists of both schools who accepted Shāfi῾ī's thesis completely became his followers, and thus a new school arose with a doctrine formulated by an individual founder. The doctrine was first formulated in Iraq, but when Shāfi῾ī moved to Egypt he retracted some of his earlier pronouncements; the resulting doctrine has come to be known as the Egyptian, or new, version of the school.

Shāfi῾ī authored or dictated to his pupil al‐Rabī ibn Sulaymān (d. 884) the book known as Al‐umm, a truly seminal work that defines not only the doctrine of Shāfi῾ī but also many of the differences among the other schools. The seven‐volume work deals with the various topics of law including transactions, religious observances, penal matters, and matters of personal status. It also includes such topics as the differences between ῾Alī and Ibn Mas῾ūd, the disagreement between Shāfi῾ī and Mālik , the refutation by al‐Shaybānī of some doctrines of Medina, the dispute between Abū Yūsuf and Ibn Abī Laylā , and the reply of Abū Yūsuf to the work on siyar, or the law of war and peace, by al‐Awzāʿī. Al‐umm above all treats Shāfi῾ī's favorite topic, an attack on those who do not accept the entire body of traditions in the formulation of rules, and the invalidation of preference (istiḥsān) as a source of law. On the page margins of volume seven of Al‐umm as printed in Cairo ( 1968 ) is another work by Shāfi῾ī entitled Ikhtilāf al‐ ḥadīth, also reported by al‐Rabī.

Certain students of Shāfi῾ī in Iraq founded their own schools; these were Aḥmad ibn Ḥanbal , Dāwūd al‐ẓāhirī , Abū Thawr al‐Baghdādī , and Abū Ja'far ibn Jarīr al‐T?abarī . All but the school of Ibn Ḥanbal have become extinct. In Egypt Shāfi῾ī's students included Abū Ya'qūb al‐Buwayṭī (d. 845 ), Ismāʿīl al‐Muzanī (d. 877 ), the author of Al‐mukhtaṣar on Shāfi῾ī jurisprudence, and al‐Rabī.

Some famous jurists who later propagated the Shāfi῾ī school included Abū Isḥāq Ibrāhīm ibn ῾Alī al‐Shīrāzī (d. 1083 ), the author of Al‐muhadhdhab and the scholar for whom the vizier Nizām al‐Mulk built the Nizāmīyah school in Baghdad; the philosopher and jurist Abū Ḥāmid al‐Ghazālī (d. 1111 ), who authored Al‐mustasfā and Al‐wajīz in jurisprudence and law; ῾Izz al‐Dīn ibn ῾Abd al‐Salām (d. 1261 ), the author of Qawā'id al‐aḥkām fī maṣāliḥ al‐anām, a magnificent treatment of detailed principles and maxims of jurisprudence; Muḥyī al‐Dīn al‐Nawawī (d. 1277 ), the author of the famous Minhāj al‐ṭālibīn; Taqī al‐Dīn al‐Subkī (d. 1355 ), the author of Fatāwā al‐Subkī; and the encyclopedic author Jalāl al‐Dīn al‐Suyūṭī (d. 1505 ), who wrote Al‐ashbāh wa‐al‐nazā'ir on Shāfi῾ī law.

The new school of Shāfi῾ī struck deep roots in its birthplace, Egypt. It was the official school during the Ayyūbid dynasty ( 1169 – 1252 ) and occupied a prime position during the Mamlūk regime that followed. Only when the Ottomans occupied Egypt in 1517 did the Ḥanafī school displace it. Today, although the Ḥanafī school is officially enforced by the courts in matters of personal status, many Egyptians, particularly in the rural areas, follow the Shāfi῾ī school in their religious observances. So do the great majority of Muslims in Palestine and Jordan, many adherents in Syria, Lebanon, Iraq, the Hejaz, Pakistan, India, and Indonesia, and the Sunnī inhabitants of Iran and Yemen.

Ḥanbalī School.

This is also a personal school in that it represented in the main the legal opinions, sayings, and fatwās of a single person, Aḥmad ibn Ḥanbal. Ibn Ḥanbal was born in Baghdad in 780 and died there in 855. He traveled widely to Syria, the Hejaz, and Yemen as well as to Kufa and Basra in Iraq in pursuit of the traditions later collected in his monumental six‐volume work Musnad al‐Imām Aḥmad, which contains more than forty thousand items. This, added to the fact that he never authored a work on fiqh at a time when many others were writing on the subject, made many Muslim biographers consider him a traditionist rather than a jurist. His students, however, collected his legal opinions and fatwās, and the result was a body of juristic principles and laws worthy of being designated a school.

The attachment of this school to traditions is reflected in its departure from the other schools concerning the sources of law. According to Ibn Qayyim al‐Jawzīyah (d. 1350 ), a late Ḥanbalī jurist, the sources are five: the texts of the Qur'ān and sunnah; the fatwās of the companions when not contradicted by the former sources; the sayings of single companions when in conformity with the Qur'ān and sunnah; traditions that have a weak chain of transmission or lack a name of a transmitter in the chain; and finally, reasoning by analogy when absolutely necessary.

Ibn Ḥanbal became famous in Islamic history for his rigorous attachment to his faith and his principled stand against the doctrine of the createdness of the Qur'ān during the Inquisition in Baghdad, even though he was beaten and imprisoned. This tenacious attachment to principle was later reflected in two followers who rejuvenated his school—Ibn Qayyim, mentioned above, and his teacher Taqī al‐Dīn ibn Taymīyah (d. 1327 ), both of whom were imprisoned in the citadel of Damascus. It was also apparent in the career of Muḥammad ibn ῾Abd al‐Wahhāb (d. 1792 ), the famous Ḥanbalī reformer of Nejd.

Followers of this school include Muwaffaq al‐Dīn ibn Qudāmah (d. 1223 ), the author of the colossal twelve‐volume Al‐mughnī as well as Al‐῾umdah; Taqī al‐Dīn ibn Taymīyah, author of the famous Fatāwā and Al‐siyāsah al‐shar῾īyah; and Ibn Qayyim al‐Jawzīyah, author of I'lām al‐muwaqqi῾īn and other works. The rejuvenated school, which had not enjoyed many followers before Ibn Taymīyah, was further strengthened in the eighteenth century by Ibn ῾Abd al‐Wahhāb and his reform movement in Arabia, which aimed at taking Islam back to its simple and pristine beginnings, depending on the Qur'ān and the sunnah instead of later scholars. The success of the Wahhābiyan and the return of the Saudi family to power early this century established the Ḥanbalī school as the official school of Saudi Arabia. It is also the official school of Qatar and has many adherents in Palestine, Syria, Iraq, and elsewhere.

Extinct Sunnī Schools.

The most important of these were the schools of al‐Awzāʿī, al‐ẓāhirī, and al‐Tabarī. ῾Abd al‐Raḥmān al‐Awzāʿī was born in Lebanon and died there in 773 , his tomb being just south of Beirut. His school flourished in Syria and Spain for some time but was overwhelmed by the Shāfi῾ī and the Mālikī schools in those two regions, respectively. What is known about it is derived from the writings of the other schools, particularly on the laws of war and peace, since we possess no independent works on its jurisprudence. Apparently it depended on traditions for its doctrines.

Abū Sulaymān Dā'ūd al‐ẓāhirī (d. 883 ), a student of Shāfi῾ī, founded his own school on the apparent and literal (zāhir) meanings of the Qur'ān and the sunnah, rejecting many of the other sources accepted by the other schools. The school flourished in Spain but died out by the fourteenth century. One of its most celebrated adherents was Ibn Ḥazm (d. 1064 ), author of Al‐iḥkām fī uṣūl al‐aḥkām on jurisprudence and Al‐muḥallā on fiqh.

The historian and exegete Abū Ja'far Muḥammad ibn Jarīr al‐Tabarī (d. 922 ) was also a jurist who developed his own school, which lasted until the twelfth century. Among his books on jurisprudence was Ikhtilāf al‐fuqahā', a comparative study of the various schools of law.

Two developments in the twentieth century have the potential to affect the structure of law schools in the Islamic world. One was the call for a new ijtihād that would disregard, or at least not follow completely, the established schools. The motivating spirit for this call has been the progressive teachings of prominent Islamic leaders such as Shaykh Muḥammad ῾Abduh (d. 1905 ) in Egypt and Sir Sayyid Aḥmad Khān (d. 1898 ) and the Aligarh movement in India. Although the call was strong, the end results were very modest. A proponent of this course of reform, the prominent Egyptian judge Muḥammad Sa῾īd al‐῾Ashmāwī, has recently been the target for attacks by conservative elements. In Syria this call for a new ijtihād has been vehemently attacked in several articles by prominent rectors of mosques and muftīs in a book edited by Aḥmad al‐Bayānūnī of Abū Dharr Mosque in Aleppo. The prospects for this call especially in the present era of fundamentalist thinking are, therefore, not very promising, although the exercise of new ijtihād has resulted in the decree of monogamy in Tunisia.

The other development, which has proven to be more successful, is crossing the boundaries of the various schools in an effort to find juristic opinions that support reform in many aspects of the law of personal status as it is applied in most Islamic countries. This process is called takhayyur, or choosing a juristic opinion, and was applied successfully in several reforms of the law. For instance, the Ottoman Law of Family Rights of 1917 derived several of its provisions from the dominant doctrines of Sunnī schools other than the Ḥanafī, which was the official school. Later reforms in Egypt and the Sudan went even further by accepting any opinion of a jurist from one of the Sunnī schools, or even a Shīʿī opinion, without announcing its provenance. An example of the latter is the Egyptian Law of Testamentary Dispositions of 1946 , which allowed a bequest to an heir within the “bequeathable third” without the consent of the other heirs, although the Sunnī position has always been that there can be no bequest to an heir. Reformers even resorted to talfīq, or combining parts of the doctrines of different schools or jurists, into a new doctrine. Because the four orthodox Sunnī schools are considered authentic and acceptable by all Sunnīs provided one is adhered to consistently by an individual, a sentiment has arisen among modern Muslims that it is perfectly acceptable to effect reform by drawing on the provisions of all four when necessary. See also Aḥmad Khān, Sayyid ; Aligarh; Ibn Taymīyah, Taqī al‐Dīn Aḥmad ; Ibn ῾Abd al‐Wahhāb ; Mecelle; Saudi Arabia; Uṣūl al‐Fiqh ; and Wahhābīyah