CHAPTER 1

Islamic Schools of Law and General Maxims

1. The Main Division: Shia and Sunnis

During the lifetime of the Prophet, no controversy arose over general principles or detailed particulars. Every question was decided through Revelation either in the , the Word of God, or the Sunna, (the Prophet's acts or sayings) believed to be of divine origin under the Quranic verse 'His words are not his own devising.' (53:4). The Quran and the Sunna were then, and remain for ever, the paramount authorities of the Sharia, the Divine Islamic Law. No school disputes this. That explains why, on matters of principle, the resemblance between the various Muslim schools of law is 'most striking';1 and why Goldziher and Fyzee do not talk about Islamic 'sects', but about 'schools'.2 Differences do exist though, and not only on details, of which there are many, even within the same group of schools: the Sunni and the Shii. The reason is that although they accept the absolute authority of the Quran and the Hadeeth, they differ on their interpreta­ tion of the Holy Scriptures and their assessment of the reliability of, and the meaning they attach to the reported H adeeth. But the fundamental difference between the two groups, the Sunni and the Imami Shia, is the latter's doctrine of Imamat which sets them apart in their respective theories of government, their vision of the substantive Sharia Law () and its theoretical bases (usulul-fiqh). This doctrine explains what is usually described as the Shii idealism and transcendentalism as contradistinct from the Sunni basic pragmatism. The Imamat doctrine provides a systematic approach to the main themes of the Sunni and Shii positions:

A. The Sunni Position The Sunni is an abbreviation of Ahlus-Sunnati Wal Jamaat, 'People of Tradition and Community.' They constitute 90% of Muslims all over the world, hence the reference to them in Sharia manuals as Al-Jumhoor, 'the public at large', the word originally meaning 'the overwhelming majority' (Lisanul Arab Dictionary). The definition of the phrase is 'a Sharia term used to denote the

1 David & Brierly, Major Legal Systems, London, 1968, p. 390. 2 Fyzee, op. cit. p. 36.

17 18 The Islamic Law of Personal Status general public of Muslims who have not been affected by political differences and stayed away from the divisions amongst various sects and parties.' 3 Shia authors, e.g. an-Numan, the author of the Ismaili manual 'Daaim ul ' refers to the Sunnis as al-Aamma, the laity or commonality (as distinct from al­ Khaassa, the elite, namely the Shia).4 They are the traditional or orthodox Muslims and represent the mainstream of Islamic theology and jurisprudence. They believe they are the exponents of the original and unadulterated Islamic orthodoxy as revealed in the Quran and in the Traditions and precedents set by the Prophet and his Companions, and as elaborated by the great early Islamic thinkers. Under this broad paradigm, two trends have been referred to above, namely the early schools of manifest content (ahlul Hadeeth) and reasoned opinion (Ahlul-Ra-ay). When they talk about 'Imams' they do not mean the word in the Shii sense; i.e. a religious and secular leader of the Umma, but the founding fathers of the four surviving Sunni schools of law, the Madhaahib (singular Madh-hab). The ruler is usually called 'the Caliph', i.e. successor of the Prophet, or Ameerul­ Moemeneen, i.e. the Commander of the Faithful. As shown in the historical survey, he was elected by the people to uphold the rule of the Sharia and conduct the affairs of the Umma. We have seen how the first two Patriachal Caliphs exercised both political and religious leadership. But they were aware of their shortcomings when they had to interpret the Sharia, and admitted their opinions were their own: if right, then it was by the Grace of God, if wrong, they alone were to blame. The same pious and self effacing attitude was adopted, as we have seen, by the four great Sunni Imams, in the Sunni sense of the term: , Malik ash-Shafii and Ahmad ibn-Hanbal. Their schools, named respectively after them, can be summed up as follows: ( 1) The doctrine spread during the Abbasid Dynasty and was the official doctrine under the Ottoman Empire, and thereafter in Egypt, Syria, Jordan, Palestine, Lebanon and Sudan. It is followed now by the Muslim population of Turkey, Albania, the Balkans, Caucasus, Afghanistan, Pakistan, China, India and . Imam Abu Hanifa was meticulous about ascertaining the authenticity of any Tradition attributed to the Prophet, making ample use of (analogical reasoning) and 'istihsan', i.e. giving preference to a rule other than the one reached by the more obvious form of analogy. His juristic research was not confined to factual questions, but included hypothetical cases. 'Legalistic devices' (hiyal shariya) are an essential characteristic of his doctrine used in an attempt to compromise between the legal, the ideal and the real, to bridge the gap between jurisprudence and reality, stressing the fundamental pragmatism of his own doctrine and that of the Sunni doctrines in general. Imam Abu Hanifa refused the highest judicial office in spite of tremendous pressure from the Caliphs. But his closest disciple, Abu Yusuf Yaqub bin Ibrahim al- ( 113-183 AH, circa 730-798 AD) reached the office of Chief Justice and amalgamated the Hanafi School of Opinion and the Hijazi School of Tradition, his judicial experience providing the link between theory and practice,

3 Qasim, op. cit. pp. 113 and 1291T. 4 Daaim ul Islam, vol. 1, pp. 76/7.