DOC-20241030-WA0002_pdf.txt

UNDERSTANDING THE FOUR —— he problem with antl-madhhabism :. 7 j

[revised edation with footnotes) .

—

The uminab’s greatest achievement over the internal Intellectual cohesion. From the fifth century of the H

‘ ra nliry duy, and despite the outward drama of the clash of reas ost to foaintained an almost unfailing attitude of religious respect and brotherhood amo, thenselves. Tt ds a striking fact that,virtually no religious w. ia

: c ars, viots or persecatl. divided therm. during this extended period, so difficult in other ways. _

past millennium has undoubtedly be the preseht

The history of réligious movements suggests that this Is an unusual outcome. The nécmal iological view, as expounded by Max Weber and his disgiples, is thatreligions enjoy an initial period of unity, and then descend into an increasingly bitter factionalism led by rival hierarchies. Christianity. bas furnished the most obvious example of this; but one cowdadd many others, including secular falths such as Marxism. On the face oft, Isl abfity to avold this fateis astonishing, and demands careful analysis.

jana's

Thereis, of course, a straightforwardly religious explanation. Islam is the final religion, thelast bus Jhome; and as such has been divinely secured from the more terminal forms

of decay. It is true that what Abdul Wadod Shalabi has termed ‘spiritual entropyTaJhas *

been at worle ever since Islam's inauguration, a fact which is well-su \pparted bya number of hegliths. Nonetheless, Providence has not neglected the ummah. Earlier religions slide

rootly of painfully into schism and irrelevance; but Islamic piety, while fading in quality, :

hasbeen given mechanisms which allowit to retain muchofthe sense of unity emphasised’ in its glory days. Wherever the antics of the emirs and politicians might lead; the biotherhood of believers, a reality in the initial career of Christianity and some other fo%hs, evntinues, fourteen hundred years on, to be a compelling principle for moe toumbers of the final and definitive community’of revelation in Islam. The reasoa Is

simple and unarguable: God has given us this religion as His last word, and it ant :

en ite

the Sinnl Muslints have

therefi —— oe et . ; ; ieee endure, with us essentials of tawhid, worship and ethics intact, until the Last

Such an explanation has obvious merit. Rut we will still need to explain some painful Seopans tothe ratein the earliest phase of our history. The Prophet himself (pbuh) had told his Companions, in a hadizh narrated by Imam Tinmidhi, that "Whoever among you

_ Outlives me shall see & vast dispute’. The initial schisms: the Ulsastrous revolt against Uthmoan (r.a.)[2}, theelash between Ali (ra) and Talha, and then with Mu"awijabf3], the bloody scisstons ofthe Kharijites(4] ~ all these drove kniyes of discord into the Muslim bady politte alias from the oultst, Only the inherent sanity and love of unity among scholats of the ummah assisted, po doubt, by Providence Svercame theensly spasms of factionalism, and erested a strong and harmonious Sunnism which has, at least’on the

purely religious plane, united pinety percent of the umumah for ninety percent df Its history[s})° vs eS a es mer

————s—

It will help ué greatly to understand our modern, ineéeasingly divided situation if we lock » Closely at those forces which divided us in the distant past. There were many. of these, ° Sotine of theni very eccentric; but only two'took the form of mass ‘popular movements, driven by religious ideology, and in active rebellion against majoritarian faith and scholarship. For good reasons, these two acquired the names of Kharijism and Shi'ism. _ Unlike Sunniem, both were highly pro ductive of splinter groups and sub-movements; but * they nonetheless remained as recognisable traditions of dissidencebecause of thelr ability’ to express the twogreat divergences from mainstream opinion on the key question of the source of religious anthority inIslam.. ag she

“Confronted with shat’ they.savv as moral slippage asnong early callphs; posthumous i partisans of Ali (2) developed a theory of religious authority which departed from the

older egalitarian assumptions by vesting tin a charismatic succession of Imams. Weneed

nof stop here to investigate the question of whether this Idea was Influenced by the - ae Eastern Christian background of some eatly converts, who had been nourished on the '

idea of the mystical apostolic succession to Christ, a-gift which supposedly gave the "Church the’unique ability to read his mind’ for latee-generations.-Wvat needs to be
appreciated is that Shi'ism, in its mytiad forms, developed as a response to a widely- © . sensed lack of definitive religious authority In early Islamic sockety. As the age of the

. Righteous Caliphr came to a closé, and ‘the Umayyad rulers departed ever mote

conspicuouily fromthe lifestyle expected of them as Conunanders of the Faithful, the

Scanned with CamScanner sharply-divergent and still nascent schools of figh seemed inadequate as sources of strong authority in religious matters. Hence the often icresistible

and unambiguous seductivences of the idea of an infallible Imare_[6] .

This interpretation of the rise of lmamism also helps Sbfi expansion. After the success of the fifth-century Sunni zevval, when Sunnism

seemed et lest to have become a fully coherent system, Shi'ism vent into a dts extreme wing, as manifested in Ismailism, received a heavy blowat the hands of Imam 2l-Ghazali, whose book "Scandals of the Batinites" expoced and refuted their eseret doctrines with devesteting force.(7] This teclifie in SAI't fortunes was only arrested after tie mid-seventh century, once the Mongol hordes under Genghis Khan had invaded and obliterated the central Jands ofIslam. The onslaught was unimaginably harsh: we ere told, for instance, that out of a hundred thousand former inhabitants ofthe city of Herat, only In the wake of

forty survivors crept out of the smoking ruins to survey the devastation [8]

this tidal wave of mayhem, newly-converted Turcoman nomads moved in, who, with the Sunni ulama of the cities ‘dead, and a general atmosphere of fear, turbulence, and The

Messlanle expectation in the air, turned readily to extremist forms of Shi'i belief [9] once loyal to Suanism, dates hack to that painful

triumph of Shi'ism fn Iran,‘a. country perjod.[10]

The otber great dissident snovement in early Islam was that of theKkarijites, literally, the -seceders, so-called because they seceded from the army of the Calph Ali when he agreed to settle his Gispute with Muawiyah through arbitration. Calling out the Quranic slogan, “Judgement is only God's", they fought bitter] ly against Ali and his acory which included

many of the leading Companions, until, in the year 38, Imam Afi defeated them at the

attle of Nekrawan, where some ten thousand of them perished fas}

Although the first Kharijites were destroyed, Kharijism itself live? on. As it formulated

itself, it turned into the precise opposite of Shi'isin, rejecting any nofion of inherited or ip of the couununity of believers

charismatic leadership, and stressing that Jeadersh should be decided by piety alone. This was assessed by very rudimentary criterla: the early

Fherjites were known for extreme toughness {n their devotions, and for the harsh

‘doctrine that any Muslim who commits a major sin fs an unbelievex. This notion of takfir (declaring Muslims to be outside Islam), permitted the Khasijite groups, camping out In * remote mountain districts of Miuzestan, to rald Muslim settlements which had accepted Umeyyad authority. Non-Kharijis were routinely slaughtered in these operations, which

to explain the second Breat phase fn-”

slow eclipse

" for the gadis (judges) to be able to dish outj

students of Islamic jurisprudence as one of the most sen.

brought merciless reprisals from tough Umayyad generals such as Has ns

But despite the apparent hopelessness of their caiise, the Kharjjte att Caliph Ali (r..) was assassinated by Ibn Muljam, a survivor of Nabrawan wiles > scholar Imam al-Nasai, author of one of the most respected collections ~ : likewise murdered by Kharijite fanatics in Damascus in 303/915, f12) 7 and 09 ore.

Like Shi'isny; Kharijism caused much instability in Trag and Centra] Asia, elsewhere, until the fourth and fifth centuries of islam. At that point, somethis ey nioment otourred, SuAnistn iianaged 16 unite itself Into a detailed system t OF 2,

0 Wall wotkedetut, and so obyioUily thd Way of thé Breat majority of wlame thie,

attraction of the rival movements dimlalshed sharply, | - : ;

" What bappened was thls. Susini Islam, occupying the middle ground between the tug extremes of egalitarian Kharijism and hierarchical Shi'ism, had Jong been Preoceusiag with disputes over its own concept of authority, For the Sunals, authority was, by

definition, vested In the Quran and Sunnah. But confronted with the enormous body of

ns throughout the lene

hadyths, which had been scattered in various forms and narratio!

and breadth of the Islamic world following the migration$ of the Companions ind Followers, the Sunnah sometimes proved difficult to in terpret. Even when the sour

hadiths had been sifted out from this great body of material" which totalled several ths which appeared to conlict

hundred thousand hadith reports, there were some hadi with each other, of even with verses of the Quran. ‘te was obvious that simplistic approaches such as that of the Kharjites, namely, establishing a small corpus of hadi and deriving doctrines and lav from them directly, was not going to work, The iutersal contradictiéns were too numerous, and the interpretations placed on them tho complex, ° udgements si mply by opening the Quran and hadith collections to an appropriate page… *- ia .

: ' f The reasons underlying cases of apparent conflict be ween various revealed texts were serutinived closely by the early ulama, often amid sustained debate between brilliant minds backed up with.the most perfect photagraph{e memoriay, Much abet, , x af Islamle Jurisprudence (tsud al-figh) was developed tn order ty en ol me ; mechanisms for resolving such conflicts in a way which ensured fidelity to th hee ie of Islam. The term faarud al-aililla (mutual contradiction, of proof. taney 6 re . Fs

ae r sitive and comple of al Muslim

Scanned with CamScanner _ ya] Early scholars such 2s Ibn Qu > f, epts-23] iy se tayba felt obliges seu ject 4) : . . inne Whole books

of usul recognised as their starting assumption that ; : Se rests were no more than conflicts of interpretation io te nces in the Lawgiver's message as conveyrd by he Prophet pee reflect Srislam had been perfectly conveyed before hs dersise: and the fonrenr eon

egholars was exclusively one of Interpretation, not of qaseuet Be amendment,

ith this alvareness, the Islamle scholar, when exarinty mam wi attempting a cerles of prelimInary academic tests and —— oon eae sayetelt developed by theearly wama was that iftwo Quranic or hed ith texts ne iia dicteach other, then the scholar must find analyse the texts linguls +h: dy ree contradiction arises from an evror In interpreting the Arabic. Wisconsin: ge resolved by this method, then he must attempt to deterriine, em the bask of a of textual, legal and historiographic techniques, whether eme o: thers la xebvect to thats, concerns special circumstances only, and hence forms # specific encegtion oe nore genera’ principle enu neiated [n the other text (35) The Jurist most also acest yond wtatua ef tha reports, recalling the prinelple that @ Qurenls weree wil overrule galeted by only one [nad (the type of hadith knows as ches), a9 wOl a bodies | by many isnads (mutawarir or mashhur).[18) Tf after applying all these toms, the jurist finds that the canflict remains, he rust then investigate the jy that one of the texts was subject to formal abrogation (masith) by the other.

principle of naskh Is an example of how, whea dealing with the delicats matter of ebaditla, the Sunni ulama founded their approach.on textual policies which had been recognised many times during the lifetime of the Prophet (pbuh). The ions knew by {/ma that over the years of the Prophets ministry, as he taught and * them, and broxght them from the wildness of paganism ta the suber and | opasefonate path of monotheism, his teaching had béen divinely shaped to keep pace heir development. The best-known instance of this was the progressive prohibition fone, which hod been discouraged by aa early Quranie verse, then condemned, and | Sypoohibite [17] Another example, touching an even more basic priaciple, was the lpreteal prayer, which the early ummah had beea obliged ta say enly twice dally, but PA following the Miro}, was increased to five times a day_[28] Mutak {temporary f ge) had been permitted in the early days of Islam, but wes subsequently prokibited

E .

ee nS

as social condit ie. £ . There are several aoe Fespect for women grew, and morals became firmer following the Hija, us, ‘stances of this, most being datable to the years | —- ~. en the crewnstances of the young urcinah, angst raed ,

identified, Remeber, explicit (sarit) or implicit (dimni) [20] The former is easil ia Her he volves texts which themselves specify that an earlier ruling is talag pie nants ance, there {s the verse {n the Quran (2!142) which commands the husliras In prayer to the Kaba rather'than to Jerusalem.(2i] In the hedith

Literature Imam — 3 frequently enconntered; for example, in. a hadith narrated by amen reads "I used to forbid you ta visit graves; but you should now visit eect menting on this, the ulama of hadith explain that in early Islam, when : a us practices were still fresh in peoples memories, visiting graves had been forbidden because of the fear that somenew Muslims might commitshirk.Asthe Muslims grewstronger in their monotheism, however, this prohibition was discarded.as no longer Necessary, so that today itis a recommended practice for Muslims to go out to visit graves. {n order to pray for the dead and to be reminded of the akhira.{23]

“Thy other type of naakh la more mubtlo, and often taxed the brilliance of the early viana

, to the limlt. It{nvelves texts which cancel earlier ones, or modify ther substantlally, but _

without actually stating that this has taken place. The wlama have given many examples * of this, including the two verses In Surat al-Baqarch which glve differing instructions as

_ta-the period for which widows should be malntalned out of an estate (2:240 and

294).{24) And In the hadith literatute, there is the example of the incident in which the Prophet (pbuh) once told the Companions that when he prayed sitting because he was. burdened by some illness, they should sit behind him. This hadith is given by Imam

‘Muslim. And yet we find another hadith, also narrated by Muslirh, which records an

incident in which the Corhpantons prayed standing while the Prophet (pbuh) was sitting, , ‘The apparent contradiction bs been resolved by careful chronological analysis, which shows that the Jatter incident took place after the formei, and therefore takes precedence over it.[25] This bas duly been recorded In the figh of the great scholars. ‘. P

‘The techniques of nqskh idestification have enabled the ulama to resolve most of the recognised cases of tdarud al-adilla, They demand arigorous and detailed knowledge not just of the hadith disciplines, but of history, sirah, and of the views held by the Companions and other scholars on the circumstances surrounding the genesis and

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eer Se ee Seta tee ; a =f —— erg

thet

exegesis of the hadith in question. In some cases, hadith schclars would travel throughout

the Islamic world to Jocate the required information pertinent to a single hadith.[26]

In cases where in spite of all efforts, abrogation cannot be proven, then the-ulama of the

. Salafrecognised the need to apply further tests. Important among these is the analysis of the main (the transmitted text rather than the,isnad of the kadih).[27] Clear (sarin) «

Statements are deemed to take precedence over allusivé ones [inayah), and definite

(muhkam) words také précedénce over words falling {nto more aabiguowis éategories,

such es the fnterpreted (mufaisar), thé obscure (k/ujiq* sad the problematic (inushkif).(28] It mimy also be necoseaty to ook at tha position of the narmtors of the

_ conflicting hadiths, giving precedence to the report issuing from the individual who was

more directly involved. A fanzous example of this is the hadith narrated by Maymunah

which states that the Prophet (pbuh) married her when not in a state of consecration (tram) for the pilgrimage. Becanse her report was that of an eyewitness, her hadith is given precedence over the conflicting report fiom Ibn Abbas, relaged by a similarly sound

isnad, which states that the Prophet was in fact in a state of dram af the time [29]

There are many other rules, such as that which states that ‘protubition takes precedence . _ over permissibility.'[30] Similarly, conflicting Aadiths may be zesolved' by utilising the fehwea of a Companion, after taking care that all the relevant fatwa are compared and assessed.(31] Finally, recourse may be had to giyas (analogy) [32] An example of this Is. the various reports about the solar eclipse prayer (salatal-hiisy), which specify different . nuribers of bowings and prostrations. The ulaina, having imestigated the reports meticulously, and having been-unable to resolve the contradiction by any of the . mechanisms outlined above, have applied analogical reasoning by concluding that since ' the preyer in question is still called sc/acr, then the usual form of salaat should be — followed, nzmely, one bowing and two prostrations. The wtber hadiths are to .be

abandoned.[33]

This careful articulation of the methods of resolving conflicting source-texts, so vital to the accurate derivation of the Shariah from the revealed sources, was primarily the work of Imam al-Shafi'. Confronted by the confusion and disegreemect among the jurists of his day, and determined to Jay down a consistent methodology which would enable a Sigh to be established in which the possibility of error was excluded 2s far as was humanly possible, Shafi'l wrote his brilliant Xisala (Treatise on Islasnic jursprudence), His ideas ,

Schools became universally accepted. This was formulat

were soon taken up, in varying ways, by jurists of the other major ; today they are fundamental to the formal application of thesharishy) be,

lings frog 2 most thts, ita Me a 2 Use hen Vat hil, times by

Shafi'i's system of minimising mistakes in the derivation of Islamie »

of evidence came to be known as usul al-figh (the roots of figh). Lik

formal academic disciplines of Islam, this was not an innovation fn the ‘i

but aworkinlg-out of principles already discernible in tha time of the cartes time, édoh Of the greatinterpritativa traditions of Sunil Jalant codified (ts 5 on these rdota, thoreby yielding insGind cued divergént branches (1.0, wecite practice), Although the-debates generated by these divergences could som cnérgetic, nonetheless, they were insignificant when compared to the gréat Seetatin al disagreeménts which had arisen during the first two centuries of Islam befyr te

leg f science of usul al-figh had puta stop to such chaotic discord.

It hardly needs remarking that although the Four]mams, Abu Hanifa, Malik ibn An ShaGii and Jbn Hanbal, are tegarded as the founders of these four great traditions; whid if we were asked to define them, we might sum up as sophisticated techniques for ayoidix innovation, their tradi tions were fully systematised only by later generations of scholars The Sunni ulama rapidly recognised the brilliance of the Four Imams, and after the lt: third century of: Islarn we find that hardly any'scholars adhered to any other ¢pprosch. The great hadith specialists, including al-Bukharland Mus)iny, were all loyal adherentsc!

. one or another of the mnadhhabs, particularly that of Imam al-Shafl's, But within each’ madhhab, leading scholars continued to imprave and refine the roots and branches of their school. In some cases, ‘historical conditions made this not only possible, but necessary, For instance, scholars of the school of Imam Abu Manifa h, which was builton

the foundations of the early Jegal schools of Kufa and Basra, were wary of some haditts ; . x 1 ‘i

in etalon in Jraq because of the prevalence of forgery engendered, by: the strong

sectarian influences fhere. Later, however, once the canonical collections of Bukbat

Muslim and others became available, subsequent generations of Hanafi scholar: tok tbe

“entire corpus of Aadiths into account in formulating ‘and revising stake mn aha This. ’ : te Shs,

enturies, until the Schools reached a condition of

maturity in the fourth and fifth centuries of the Hijea.[35) _,

Tl was at that time, too, that the attitude of toleration'and 800d opinion | th i inion between, the ed by In azali, hints the author of four textbooks of Shafi‘ /tgA,[36] and also of, MiMmonnae om clever ae 7 re 1 Widely acclaimed

Scanned with CamScanner i] of all works on usul, usul al-figh ‘ . ge gt and his dislike of ‘ak oie oP ai ypathe falled fanatical attachment to amadbhab'(57) while , he oe oslo 19 follow 2 recognised madbbab in order to avert the ail ting thé sources, he must never fall into the trap of conslderin ki orto the others, with afew insignificant exceptions a d, the great scholars of Suninf Islam have followed the ethos putlleed ly respectful of each others madhhab.

Fan per f oe glaenll have been conspicuous ne under traditonal ulania will be well-aware of this fact.91)

A® passtucled

jd not stifle, as some Orlentallsts have ong sted v9) jnement OF extension of positive law [40] On the e avery, vailable whieh’ not only perinitted qualified intividusts

uranand Sunvah on thelr own authority, but actus y rolura, an expert who has fully mastered the

necessary nehelarly conditions Ia not per wtted to fotlow t derive the sulings himeelf from the revealed

Add (quta term derived froin the famows

F e and carefi ae for sincerity,

cad

sil

. r {or the ref chanisms were 4 hy fron the Q

According to most sel

the Four Sebools d

satel me

oath? sharia wa to 60 this. ied avariely of {his School, bul mus tychan gncividual is known 4 amid

nie feetand wlll

Bament culings ©

Fane Jabal.(42] ojously deny chat for a Mustin to vratene beyond established exp. top infos fgg vecourse directly to the Quran and Sunnah, he must be a sebolas of great The danger of Jessqualified Individuals misunderstanding the sources and Bis the Shariah [a a very real one, as was Showa by the Ciscord and strife . failited some early Musliins, and even some ofthe Companions themselves, Inthe igh preceded the establishment of the Orthidox Schools. Prior to Islam, entire dbeen subverted by Inadequate scriptural selolarshiy, and it war Vital that

{be sgeused from a comparable fate. on ation and distortion, the great

potect the Shariab from the danger of inn uel laid down rigorous conditions which must be fulfilled by anyone wishing 1

eright of jtihad for himselt{43) These conditions include: . Z COV i pe of the Arabic language, to minimise the possibility of misinterpreting

a ‘on purely linruistic erounds:

fens

madhhab, , thatis, a scholar who remains

(6) 4 profound . : : know! coo “ edge of the Quran and Sunnah and the circumstances surrounding °

the revelation of cach verse i and hadith, together with a full knowledge of the Quranicand

hadith com: : menta nes, and a control of allhe intespretative techniques discussed above;

(inane! ee ge of the specialised disci : . aad of the man tert : sacle of hadith, such asthe nssessinent of narrators

d) ae 7 . .

kaowledge of the vi rea ‘

sallthen cat eke “ the nen Followers and the great ams, and ofthe 4 ounded {n the textbooks of igh, combined with

knowledge of cover where a consensus (ifm) has been ecm . - :

‘ . a: , ¢) knamied gs of aotacme of juvidical analogy (qiyas), its types and conditions;

bnowked ps ' lef me ( ig: of ones own society and of public interest (maslakali);

jt ning the general objectives (magasid) ofthe Starlah; +

(ht a bigh degree ov intelligence and personal piety, combined with the Istumie virtues of

cunpasslon, courtesy, and modesty, ‘ dered a mnjtahid fi-shar, aud is

Ascholar who has frlflled these conditions can be consi horitative madbhab.[44] This is

not old’ged, or even permitted, to follow an existing aut what sone of the Imzma were saying when they forbade imltating them <ncritically. But forthe much greater number of scholars whose expertise has net perched such dizzying heights, It may he possible to become & muyjtahid fil- m broadly convinced of the doctrines ofhis school, but is qualllied to differ from received opinion within it-[45] of examples of uch men, for instancelman al-Nawawi among ai-Barr among the Maliki, Ibn Abidin among the Hanafis, and Ibn Hanbalis All of these scholars considered themselves followers of the fundamental i their own madhhabs, but are on record as having exercised

w verdicts within

principles of t Jarship and judgement in rea

thelr great disciples from .

‘There have been anumber ; the Shafi'ls, Qadi-Ibn Abd’ Qudama among the -

Scanned with CamScanner :m al-Shali "i was not addressing 2 crowd of butchers, nightwatcbman and

masses. Inia

_ donkey-drovers. — Other eategories of mujtahids arelisted by the usul scholars; bat the distinctions between them ére subtle and not relevant to our theme.[48] The remaining catégories can ‘in be reduced to two: the muttabi (follower), who follovs his madhbab while being

d hadith texts and the reaséning, underlying its positions,[49] -

eware of the Quranic an the mpgallid (emulator), who simply conformsio themadbhab because bf

practice ber

and secondly his confidence in its scholars, and without necessarily

behind all its thousands of rulings.[5 a) Clearly it is recommended for the mugallid to learn as much as he or she is able of the formal proofs of the madhhab. But it is equally clear that not every Muslim can’ he a scholar. Scholarship takes a Jot of time, and for the ummah to fenetion properly most people must have other employment: 2s accountants, soldiers; butchers, and so fgrth.[51) As such, they cannot reasonably be expected to become great illama as well, even if we suppose that all of ther have the requisite intelligence. ‘The Holy Quran itself'states that lecs well-informed believers should have recourse to qualified experts: So ask the people

of remernbrance, if you clo riot know (16:49).[52] (According ta the tq/st* experts, the people of remensbrance ate the ulama.) And in another'verse, the Muslims are enjolned

to create and maintain a group of specialists who provide authoxtative guidance for non- specialists: A band from each community should stay .behind to'gain instruction in * religion and to warn the people when they return to them, so that they may take heed (9:122). Given the depth of scholarship needed to undexstand the revealed texts.” accurately, and the extremie warnings we have been given against distorting the ” Revelation, It is obvious that ordinary Muslims are duty bound to follow expert opinion, rether than rely on their own reasoning and limited knowledge. ‘This obvious duty was well-known to the early Muslims: the Caliph Umar (r.2.) followed certain rulings of Abu Bakr (ra), saying 1 would be ashamed before God to differ from the view of Abu Bakr.

And Ibn Masud (ra), in turn, despite being a mujtahid In the fullestsense, used in certain issues to follow Umar (r.a.). According to 2l-Shabi: Six of the Companions of the Prophet

(pbuh) used to give fatwas to the people: Ibn Masud, Umar Ibn al-Khattab, All, Zayd ibn

“Thabit, Ubayy ilo Kab, and Abu Musa (al-Ashari). And out of these, three would abandon their own judgements in favour of the judgements of three others: Abdallah (ibn Masud) “ would abandon his own judgement for thejud gement of Umar, Abu Musa would abandon

Knowing the detailed reasoning —-

. Sunnah, retherthan relying on

this matter. This is for the simple reas'

other multi-volume collections, which contaln

. sejudperent ofAli-and Zayd would abandon his OWN judgems

his ownjudgement fo ‘o eget of Ubayy ibn Kab.[53] ” This verdict,namely that one is well-advised to follow a arent Imam as ones guide'ty the , oneself, is particularly binding upon Muslims in coin,

ly asmall percen tage is even entitledto have a choice i

on that unless one knows Arabic,[54] then, ver it,

one-wishes to read all the hadith determining a particular issue, one cannét. Fortvariol, reasons, including theirgreat length, no more than ten of the basic Aadithcollectisis have been translated into Englisb. There remain well over three hundred others, including such seminal works as the Musnad of Imam Ahmad [bn Hanbal,[55) thé Musannaf of thn abi Shaybayla6)the Sabih of Ibn Khuzaymns,(57) the Mfustadrak of al-Hakimn{$8) nd many

large numbers of sound hadiths which cannot be found fp Bukhati, Muslim, and the other works that have so far been translated,

Even if we assume that the existing translations ure entirely accurate, tt is obvious thata

policy of trying to derive the Sharich directly from the Book ané.the Sunnah cannot be

attempted by those who have no access to the Arable, To attempt to discern the Shaviah, merely on the basis of the Aadiths which have been translated will bo to Ignore nnd amputate much of the Sunnah, hence leading to setloud distoctions.(59] e ;

Let me give just two examples of this: The Sunni Madbhabs, in their rules for the conduct

of legal cases, lay down the principle that'the canonica) punishments (hudud) should hot”

be applied in cases where there is the least ambigulty, and that the qad! should actively strive to prove’ that such aunbiguities exist: An amateur reading in the Sound Six

such as Britain, among whom on

collections will find no confirmation of, this.[60] But the madhhab ruling is based ona

the hudud by means of ambiguities."(62] _

hadith narraied by a sound chair, and recorded in the/fusannaf of Ibn Abi Shayba, the

Musnad of al-Harithi, and the Musnad of Musaddad fbn Musarhad. The text is: "Ward

offthe Audud by means of'ambigulties."(61]) Imam al-Sanani, in hisbookALAnsalys narrates the circumstances of this hadith: "A man was found drunk, and was brou ‘ahi iv uN Ug i

Umar’ who ordered the hada of eighty lashes to be applied. When thishad been dane, the;

man sald: Umar, you liave wronged me! I am a slave! (Slaved-recelve only half the. ophetic hadith, Ward off

punishment.) Umar was grief-stricken at this, and recited the Pr

Another example is provided by.the practice of istighfar for others during the Hajj

According toahadith, ‘Forgiveness isgranted to the Hajji, and to those for whum the Hajji

Scanned with CamScanner ,paaith {snot related in eny of the tallectinns 89 fer tra

a} A ridlate! tone an an oy © ee ‘ = ot ae bya soond isnod, in many other earticg f, lncieg trees m Pk : at ry ebarnel and the Muenod of el Berzes [63] « J27 el a . wee . 8 the verdicts of : : w +, a ee; mogheny ‘Some of the preat 1 zs . _gcangie pensine to the lenportant practicn, Pecopnoed by the tae Metinatom atten NMBA the et oe ne OO Pa P aynnah preyert As JOON Ra powsine alter the god of the trees in 4. « wich was that “Sg tbe mosgoeatall. Now manylless committed ere + Make haste to perfaras tt = into, 2a thee} Masti, ed So Now Feealls the vig ofthe easly u P qehadith runs: Make Basie tp partons the two teas alter the Masha, @ Mn teeta Lave heey Aivergent interpretations ofthe Sanna ag ‘ F gvp (to Heaven) alongside the obligatory preyer. The hodich enmitiene” TRIE Cateye ge EE ABS Th — res ; : ties hoe . OU younelf Ver Which there is a debate eJomt At believe to be forbs among the scholars, and ' 4 ; | The albrnative to this plicy ie, reales yeu shoul ntti hin from singe opti he traditional plous fear of distorting the Law ef a eripplethe Muslim community bam i nt MeN whieh wl pln and ofthe great scholars of the past -crrtalndy well ower plnery. »: © peers or Ina Weternindumney " | a ‘herd loyally toa maghhab (64) Tt fs true thet in the treaties 4, an Saeseed

= . tobal culture! hie . 3 —— wrteent) press, Uhiak far themselves whitch people ure urged from eatly childhoo tn - _» Jofdlaventera apperred, avch eet Taymireh and fhe et Qeypinettgy bat 7 and to early coil to

challenge established ae

: *7 ToDtter entus ' : wathority, it cart sometimesbe ditfeult

© saviduee neve” recommended that eombeAoenied $0 sme whens aaa = oe Fecognise ones own lirdtations (71) We are all alittle \ke _jedhtiout expert help 4nd by any eaaa, although theme tut? oe haow prorat Leer btetpent or armadthaa curses heat oe ir pages 2

j evtpdand made pr ominent, (helt [nfluenoe eq the a chdcen se tertip ef chasetnal Arable, ere qal! fed to derl Miigtittsiedtiwie ee é

bo wag negligiboe, at la ruggested by the small murder of mane ripts of thelr wens egotiom maslag v Td, To young people provi es, 13 unexample of this

joa inthe great libraries of (he Islamic world [.]

, of thelr own Judgement, and unfamiliar worl the ccoplexity of the sources and thebrilliance of authentic scholarship, this canbe 7 an ities trap, which ends by luring them away [om tHe orthodex path of Islary and . fperbeltss, social turbulences have in the past century throws up a mamiber of wees {ata an unintentional agenda of provoking deep divistons among the Muslims, The fact

p)oeadwe tad the abandoament of authoritative scholarship. The mast prtewines that ll the yeat scholara’of the religion, {ncluding the hadith experts, themselves

pes a this campaign were Muhammed Abduh and bis pep) Mubsmaned Rashad : belongnt to madbhabs, and required their students tabelong to madhhabs, seems to bave o}Paualed by the triumph of the West, and informed in subtle weys by thelr owe bese fagotto, Selfertnte bas won amajor victory here \lccumented commitment to Freemasamy, these mea urged Masloas to throw off senponelbliny i} jeac.esoftaglid, and to reject the authority ef the Pour Schools. Today in some Arab f<s @peclally where the indigenous tradition of orthodox scholarship bas bees (hood It is common to see young Arabs filling ther homes with every Acdich } ontheycaa lay their hands upea, and poring over them ia the apparent belief chat }oslats Ukely to nusintenpret this vast and complex Uterature than Imam abShadl, feohmad, and the other gteat Imams, This irresponsible appreach, although ni" not "vs it predictably opeging the door ta sharply divergent opiaieas, which bie oi Ssaged the unity, credibiy and etiectiveness of the Islamic moversest, and”

uvercommon sense andIslamle . i .

"The Baty Quran commands Muslims touie their minds and reflective capacities; and the fozur of following qualified scholarship {3 an area in which this facully must be very carefully deployed. The basic point should be appreciated that.no categoric difference exists between usul al-figh and any other specialised scleoce requiring lengthy training, Shaykh Sa’id Ramadan al-Buti, who has drticulated the orthodox response to the antl- Madhhsh tread in his bocis Non-Machhabism: The Greatest Bida Threatening the [clomic Steri’a, likes to compare the science of deriving rulings to that of medicine. “If

“SED arguMEeNts over issues settled by the great Imams over a thousand y , = an On ROW to see young activists prowling the mosques encsing ober “SS Sorwhat they Selleve to be defects in their worship, even whea thei Wcos

cnes child is seriously fi, be asks, “does one look for oneself in the medical textbocks for the proper diagnosis and care, or should one go to 4 trained medical practitioner?” Clearly, nity dictates the latter option. And so itis in matters of religion, which are in peslity eves more Important and potentially hazardous: we wauld be both foctish and

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irresponsible to try to Jook through’ the sources ourselves, 2nd become our own Tauftis. © Instead, we should recognise that those-who have spent their entire lives studying the © Sunnah and the principles-of laware far Jess likely to be mistaken than we are[73] °

Another metaphor might be added to this, this time borrowed from astronomy. We might - compare the Quranic verses and the hadiths to the stats. With the naked eye, we are unable tosee many of them clear] ly; So we need.a telescope. Ife arefoolish; or proud, we may try to build one Gurselves. If we are sensible and modest, however, we wil] behappy * to use one built for us by Imam al-Shafi'l or Ibn Hanbal, and refined, polished and improved by generations Of great astronomers. Amadbhabis, aflerall, nothing morethan + a piece of precision equipment enabling us to’see Islam with the maximum clarity: possible. If we use our own devices, our amateurish atlempts will inevitubly distort our.

“ Wision. . F

“Atbird image might also be déployéd. Au ancient build ing, forinstance the Blue Mosque

‘ia Istanbul, might seem imperfect to some who worship init Young enth usiasts, burning. with a desire to make the building still more exquisite and well-made (and no doubt more . in conformity with their own.time-bound preferences), might gain access to the crypts and basements which lie under thestrueture, and, on the basis oftheir own understanding

of the principles of architecture, ty to adjust the foundations 2nd pillars which support the great edifice above them. They will not, of course, bother to consult professional | architects, except perha \Ps one or two whose rhetoric pleases then nor will they be guided * : by the books and memoirs of those who have maintained the strarture over the centuries. Their zeal and pride Jeaves them with no time for thal Groping through the basements, . they bring out their picks and drills, and set to work with Lheirmsual enthusiasm, -

There is a real danger that Sunnt Islam js being treated In a similar fashion, The edifice has stood for centuries, withstanding the most bitter blows of jts enemies, Only from within can it be weakened. No doubt, Islana has its intelligent foes among whom this fact. . is well-known. The spectacle of the disunity gnd Stnas which divided the early Musliras despite their superior piety, and the solidity and cohesiveness of Sannisiri after the final - codification ef the Shariah in the four Schools of the great Imams, must have put ideas * into many a malevolent head, This Is not to Suggest in any way that those who attack the’, great machhabs are the conscious tools of Islam's enemies, But it may go some way to

Kamusu (Istanbul,1949-52), I, 911-338.

ty [6] Fora brief accouut of Shlism, see C. Glace, The Concine Encyclopedia of Isiam he ‘i . . =% : ndon,

a6 The History af the World-Conqueror (Manchester, 1958)

and with'taglid dismissed’ as a sin rather than a humble and mt oe divergent views which caused such rain in our early history will surely b a, again. Instead of four madhbabs in harmony, we will have a billion ma dbbateine and self-righteous conflict. No more brilliant scheme for the destruction of Ilan

dd. 7 . . ever have been devised.{74] _ . 8 “ie . ri : ae

. .

. a * . y Footnotes - a . Fi Se . ?

[:) Abdul Wadod Sha)abi, Islam: Religion of Life (a ed, Dorton, 1989), 10. ThiaIs the pupae ofthe famous hadith : The best genéyation fs uy own, then that whieh follows them, then thay which follows them’. (Muslim, Fada'll alSahaba, 2to, it, a19,214) ; ‘

" [a] The Kalifa ‘as killed by Muslin rebels fain Eppt, whose filevances Included his alleged “Iethibtation’ of

Inbodueing a standard text of the Holy Kovun, (Evidently the bellefaniong fome inadem Mualiins Usat theveean beng such thing as.a ‘good Innovntion* (bio Hiasana) has along Mstaryl) For the full story, Ste pages 6}-710f MA. Shaban, Jslamte History AD 600-750 CH 132):A Neul Interpretation (Cambridge, 1971),

[3] Shahan, 73-7. - [al For the Kharijtes see Imam wl-Taba ct, History, vol. XVIT1, tran slated by'M, Morvay (New Yorks, 1987), 241. ‘Their moustrous Joy at having acsassinated the Khalifa “All fon Abt Talib is reenvded ont page 22. .

[5] For an account of the historical development ‘of the sigh. see Abmad Hnsan, The Barly Development af Islamig Jurisprudence Csrlamabad, 1970); Html Ziya Ulken, Talam Dusuncest (Istanbul, 1946), 68-100; Omer Nasulj Ellmen, Hukudt Istonity ye ve Jetalahatl Pikhtwe

orny

*% - amg 1989), 36470", (7) Fada'ih al-ntiniya, ed. ‘Abd a)-Rahman Badawi (Calro, 2964) " ae oy

Fs Se, a

[8) Fora detailed but highly readable account of the Mongol onsleught, iii api Th

based on Eastern and Western Accounts Uf the Thirteenth o ned Fourtenng), Coinage ae ofthe Mongols,

kuowti account by a Muctin historian is *Ala’ al-Din Juwayny, Perit tangurers wate the a 1 timeslas JA. Boy

Scanned with CamScanner ; - 1 ; * . _gdeviema,seetbe dramatic accountofAhena’ Aas » — ° ei ie * sg: . . \ . t= who states that chola arm, : mS ; 3 : eee : art 1959-61) b 22+" acta ser800 ‘ were Wileg Sthedy, so ae . "ae * . ‘ . ,

18? kes : . 5 _ . . “st off for fratts, Or the spad ° : . * \ { i . a - ; Pec ofthe y- Xofa pal; a ¥ Fee * ‘ < % wl e thing stolen is Wee, and thatthe ict : ‘ ' yi sernstood in67a/i4b9, when the Monge] ler of tron was Scfeted bythe Team gp mis Shur "hRisela,r05.) MAMET oe dna or mre'Qinte es ould nét be cat offunless the a} 4 cat ay iawese tn Utes dy Sih Dea", an eves Sib, yng aol 2 ES Ewatte Abra Daud, Sma ace \y J ae ee sule which normed tran into a Shi f country. (The Combnttae History Wine meet Princptes of 2 Lo. : i sl f es of isla: ; pe at - eho 4 Sabzaved, tr. Soyyid Hasan Amin, Islarte Fofiices nd Jeeridicns iy aoe Afghan schulye by tri oa Pee Cea sh asks Tat Pr . "Ls . me Thee lg Tequired reg, furoma 4 . + wee? fol - . . fr every stn wo wikestg ney Tay B the Chewy of ilacie Jv, and shouldbe : i ial , : : : ‘westons concerning the Sharia disdples ‘ pel? et .. ; : Oath. verses In question : Fc anas represent RARE AE ER aa ena be iti, . Log 889445) and5:99.SeeKamal abe, :
D | e . . - yo vaany facto thelr principles were newer fully codified. They were textvalles, _ Kamat, *soilbn Reha The Distingutshed Zur {sri : : ats i "7 pntetectval vojected the condition of Quatdite bith Tor thelr teen, and : ‘sade, 1994), hla new trpnstaten ofthe si sab oe a attend Haha Mal Ret \ ae e outside thelr grouping to be Kafi, For Boma Interteting accoants, see 2. reat sPPMEN Ke ochatup espana of Uistaengeane eu ee 1 wed suse of Karin’ Bullutin aftha Faculty of Arts ofthe Untwersity Sf Reet, xy eacholars ofthe reen ents over the proof texts (edilfa) nsed by” - ; an “ne

pe ton Haz, al Meal f'binifal wat-nltial (Cairo, $380), TY, v8 8-p 2, heading Tereaty

opal a) '

eer gare premier etatrnuautman du Maphireb (Parka, 1987). at Of Lt .

s ccanpethe hat wilitert a book celebrating the virtues of the caliph "Ali fee Toe tele ol" Ase hual abiy best si . .

5 Ghazal, ol-Mustasfa nity

; antzed madihate, tn Rashid w “Ah the usual respéet and ubfectlvtty, Hon Ruslidl was a Mal

‘itm ab Atlas (the "Knowledge nf Vai

iM gad, hut presents the viewsof other scholars ‘The works the best-known example uf a bock of the Sharia selencent HontRullngy; fora definitlen af th ‘ilm obudul, (Calro, 332.4)1, 9),

{t9) Kamal, 150 quoting Shatibl, Miauefaat, ur, 63."

hs sefence see Tmarn Hujjat al-Llatn al +

Po _tuyceydevabad, 1329) bh 36-40. peat"

(20) Kamal, 154-160; Dali, Sigt3-450; Shirl, go-5; Juwayni, $91412-1454; Ghazal, Mustosfa,1, 107-229. The Problem was first adireased systenvuteally by Lmara al-Shai'iTherewre cevtaia holiths which agredwith one * . ‘another, and others which are contradictory to ove another; the abrogatingand the abrogated hadith& ave cleatly Gistinguished (in soma of them); 1n others the hadiths which ara abrogating and abrogated are not indicated! " *Qisalo, 179) Por easealn whieh the Holy Koran has abrogated a hadith, or (more rarely) hadith has abrogated ; , eKoranle verse, see Charoll, Mustag/o, [, 124-6; Bali, $429-39; Juvnynl, §144de3. The sunna ls able to nbrognte . the Koran because tttou ty a revelation (wohy); 24 Imam ol-Baji explains it, The Diessed) Prophet's own sunnas da not in reality abrogate onything themselves; they only state that Allah has.cancelled the ruling of a Knranic, passage. Hence the abrogation, In reality; is from Alla, whether theabrogating pastage {s in the Koran o¢ the

«top examnple, Tmnam abHaramayn alJuwaynl, aldurhan fi weed al gigh (Cele, gee),

pebeess> : .

jae Qoyba Tahol Mubhtalifabsladith (Coli, 1998), Readeva of Preach will beset om the ev palation i : | a ie Letra! -rdes divergences du hadith d' Tin Qutayhe (Demesout, pts), Tere be we dyer litedy |oedtowyal The Life and Works af Tha Quteyba (Belrut, 1950). Meation should wha be mate of a laney fy cetempects siodtar werk, hy Tsai al-Tahawd (dl 32a): Mustiil ehdher (Hpleabed, 33), which 5

pprvely noel saving the alema, *

Ros Sunnar’ (Baj, 435) wit .

[Pinan Abat- Wahid al-Baji (d. @ Thkam atPusul fa “fbn ef-Usul, ed A. Turd (Beiret, r ' , ;

ger), thu84-207, a Scena (dara), al.Luma'fi usual alfigh (Cxlro, 1577) {21} Forthisas an Instance of abrogation, see Shaft'f, Risalu (Khaddui), (33. ; jy Soni, Slan752, 1247; Imam al-ShaGi“l, te. Majid Khaddurt, Al Shgft fs Bissle: Treatise ae

[22] Musiro, Jaoair, 100., = i er .

cdotlons of Islerse Juertspradmece (Carwbridge, rgS7), 1903-8. Shafi gives 2 number by frowueninples of Korante texts being subject to talAsis, Far instance, the verse its for be

‘malt and female, ext of their hands as a retribution from Allah,’ (5-42) appears to be Soro) however it is subject ta tabhsis by the Aedith which reads "Hands should not be

{23} Kamal, 154.

_ fina) Kamali, agg; set also Shali"lRisala (khadduri), 169,

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bts] '

Stee ey ne ~

[25] Sayf ad-Din Abmed Ibn Muhammad, ALAIbani Unueiled: An Exposition of His Errors ond Other Important Issues (London, 2 ed, 1435), 49-513 Ibn Rnsbd, Th The Distinguished Jurist’s

Seip 168-270; <n, Ohad, 199-202. -

la J MZ — Hodith Literoture, its Origins, Decrlopmont and Special Features (Revised ed. Cambridge, 1993), 3. 40,126. . ws .

(27) Defects in the mdtn can sometimes ceue a Aadith: weakereniits imadi is ound (Sididigi, * 113-6).

(28) Kemali, 361; Bilmen, I, 744, 82-4. The dassification of revealed fats ander these headings fs one of ad *

mast sénsitive areas of usud al-figh. [29] Kamali, 361.

[30] Kamali, 362.

itis a ii wee oo,

(32) For solne expositions ufthe difficult topic ofgivas, ser Kantali, r9pzals; Sairag, 3-63; Jutvayni | ne True Soff 21-Din al-Amidi (alAkam,f Usul abAhkani, Cairo, 1332/1914), UT, 261-437, TV, a6.

[33] Kamali, 363-4: ‘ 2*

(34) Tue accessible English transhtionofhis best-known work ap legat roy bas alreuly been mentionedabove in note 15. . ' :

[35] The question Is often asked why only four sch 00}s should be foDowea today. The answer i ver

(Mugaddirma, tr, F, Rosenthal (Princeton, r958}, OI, 6.)

[6] These are (in order of length, shortest firs), alXtulaw, ab-teiis ob-Wasit ang ic peazed over ahurdred otter boots, earaing him frome grateful Uhnma the te "Haj ay wi *

Esta). It is hardly surprising that when ihe ulema quote the famous ‘SaiA hadith “Alay sh) nig

Umma at the beginning of cach century sameone who wil renew forritits religion,’ they ite fram, _ the tecewerofthe! Gfdh cearuryof Islam, See forinstanee Ima fubammadal a-Sakhani PR sie.

‘et Hasomt fi bayon hathirin mis al-abeadith almushtahira ‘ale al-aleina (Beirut, 1408), 2954 vag ‘renewers’ as follows: Umartdn “Abd al; 'Azle, al-Shafi'l, thn Suray} Abu Hania eee al-Ghazal, Fakhr al-Dinal Raal, thu Dagaq al-"Id, al-Balginot Imam Iba “Asaklr (d. s7uAH' nAH) in bitlpane Tebyin Kaiti al. Muftert fier nusiby ila at. Imam AbMT-Hasan alAsh ‘ari ed, Imam Mubanomad 2a Kawthad (Daniascus, 1947, reproduced fae ul, 1404), 52. “b has the Tllowing lists “Umar iba “Adda g

Shafi Cash “art, al- at aa a-Ghivall :

(37) Imam Abu Hamid actuate thy “Ulurn al-Din (CalvorM ustafa a-HalLbl, 1347), U1, &

(38) ‘The moat charueteristle qlee of the peat ulenna ure digally and sevenily, respect for other schay contpassiona fe concern for the Unni, wid following the Prophel, upon whom bo blessIngs and pense, who view was slways broad, hls wisdany perfect, and hls toleration superb." Linany Yusuf al-Dajnee (4. 196549

Magalst wa-Fatawe (Calin: Maju’ al-Buhuth al- Eslamiya, 1402), If, 5AJ. “Truc falrness Is to regard all de Towns a6 worthy; whoever follows the radii ofn Migtahld becnuea ha haa not prratliad! the love of {tha Ie not harmed by the (eet that other Inwma differ frum hls own! (Shuctb), 2 'véaeaen, (1, ado.) There wre muy examples cited by the scholars ta shaw the reapectofthe madiviahs foreach other, For Iustanee, Shaykh Ibnihin al-Samadj (d. 1662), a pious scholar af Dainascus, anee prayed to be'given four sons, go’ that each mlght falqe ane of thé recognized mudhhabs; thereby bringluy a fourluld blessing to hils house. (Auhaniniad al-Amin Mubibly, Xrulosoe al-atat fi a yen ul-qarn ubhadt ‘ashar [Calto, 1248), 1, 48.) And Jt was not uneaunmon at « scholars ta be able to give fahwas In more.than one ntadhhab (such 2 man was kuawn technically as nuh Airag), (Iho al-Qalanisi, Dhayt Torikh Dinasg (Beirut, 1908), 311.) Hostility between the Madhhabs was rare desplee some abuse fn the late Orton péridd, A-Dhahabl vounsels ‘his rondlers 18 follows: ‘Do not tak that: , your madhhab Is the best, und dhe une mvt belovecl by Allah, for you hive nv pruofof-ehie, The lmaris may |

Allah be pleased with them, all follow greet goodness; when they dre sight, they receive two rewards, aivd with “ they are wrong, they still receive owe rewind." (al-Dhabebl, Zaghal af- ‘Hin wa eTalab, 15, quoted In Sud.

Ramadan al-Buti, Al-Lamadhhubi ive Akhiar Bid ‘a tuhaddid al Sheet ‘a eel-Sslaniya, 3° eclition, Belrut, 1404: 81.) The final here (righ feward are taken frow a well -known Aadith 10, thls effect (Bulharl I'tlsam. 21.) Lag) Mast notoriously N. me Conflicts and Tensions In Islamie Jurisprudence (Chica, Watt. : 1969), 43, 50, 96; but also I, Goldzlber, Louls Andetand Montgomery Wa

Scanned with CamScanner | aga beset hereto refulz an accusation made by some Oriectatate wid oiiatihe scholars were reluctant to chstienge the mathhob ren

Meas W they 217 eo ive qudl positions, sestrleted to followers of ld. Lymsot eee en On Athada Scheal, weal be berrat ,

| oe puritoslarly dlotarnefal examgle of the moderz lendency to slander fren whew oni bas ap ios impressive tan thel fearing: $0 suggest Uhat the prest ems of tetan, lolierend ihe te ry shat theyeld simply forfinancis) reasons Is Ineulting and » Gingracefel Lorre of ole “ae nite be easily refuted. The great ulema of the Past wert in kimont every cose mea ” sini Jct and did not need to earn from thelr scholarchip. Yor inetance, foun Tos Tages bad Inbectnad iia, eis eter (al-Saldawl, of: Daw" al-Lam[* UAL al-Garn of-Tosi* (Cairn, 2359-23, Th, 9640} inn jpsicare orm prominent ond wealthy Carfly of chxAl servants (ore bie Opn Mute lM dodere§ plher foro P¥tahira (Caley, 1921), 4 493, 203), Por tocumples wf schtars whe achieved fomanctet inlenahisiisia pettor'sontes tn Un Jom’ a's Tadhkirnt alSam(ff Adahal- ‘Alin wet Meuse “ONG Dylon rey) ayes poo dietall wasa erefsmian who made gold Jeaft ‘his neadenile ‘ssapeletes recell thet be uped ts 22 rot un pee | 2 wis big bond aurw from the effects uf the hammer” (Dhahwhl, Tudhddre, UL Seyped white ty Rall ta fog, also a Malik], waa n soldler who hud taken part tn the tbereton of Alereatits bres the (Crretore nad fro pave hic fight classes wile all wearing his chaln mall and heliort CBepwtl Mama al iulindong, Lee Jaed os typieal forthe great scholats ta Nive lite of great fiupality:' tam ef Wasik, the died se the apr elgg, tt (to howe daunaged ts hea}th by hls agcetic lifestyle: for instance, be declined te est ed thie fools ef Demastie,

fore hie tavght, because ft was grown on land whose legal vatas he teperded as seepect (eT ], Wire of

per wo: Tbrat nl-Yagran(Hyverabad, 1998], IV, W945) N ls not easy to nee how nach men cmelld have owed toes of inaneled gin to dictate thelr appiench to Weliglon. ‘

WAnngtehid Isa scholar qualifled to perform (/tihad, defined ax “persocal effort 13 derive 2 faculing ofthe suru’ froin the revealed sources.’ (Slbnen, I, 247.) His chief task: theacmal beess of derivation ~ Ly called iztinbat, originally signifying in Arable “bringing up water with Boulty froma well." (Bilmen, 1, 237.) < .

[When alah’s Messenger, upon him be Dessings and peace, wished tasend Muadh Ba Jubslto the Yemen, hed bie: "How wil pou Judge if an iscue is presented tayou for judgement?”’By what isin Ah’ Bock, he fet And if you do not find it in ABah’s Boct?"“Thea by the Suuaa of Allah's Messenger."“Ard ifit is not in Bema uf Allah's Messenger?’ Thea I shal strivetn ny on judgemint’ (qtahidy ra'y9. (Abu Daal, Aggy

‘i .

Kamat. 385-309, especially 374-7; see also Amidi, IV, 219-11: Shirazi, 71-2} Bilmea, I. 247,

. (45) Kamal, 388; Bitmen, 1,248,

nee ofa religious du

(46) The major followers of the

_ Instance, that Abu Yusuf and al-Shaybant frequerily dtssented from the positfon oF Abu Hanif. Infact, It ishaid lo And tahyle question of AgA whieh ts jot suncuuded by adebate, In which the lndepandennt ssaiacnas Vtihuelofaheschola 4, und Lhelt determination tu locate the preclyy truth, are very tonaplewous. In this wey wwe find tram a-shaf"t determining, Inhiy newanadhhab, thar the tinie for Maghrib does nat Gitend inte the late twilight (shofoq); while fs followers departed fram this postion fn order to (ollow a different prooftext (dali?)

Sinallarls, thn ‘Abd al-Dary nod Abu Dake ibn al-"Arabi hold many divergent views in the madhhab of Tmant Malik. And soon.'(Tra) al-Dajawi, 11, 504) .

Sreat Tiname did not almply Troftate hem as same have elifined, We know, for *

. . : f

(47] ‘Whenever a wngtalid reaches a fudgement in which he goes against fina’, or the basale principles, or an namblguous text, or a clear qlyts (al-qiyas al-Jali) free of any proof which contradicts {t, ils mugallidls not permilted to convey his view to the people or to give a fahwa ln accordance wth It… however no-onaen nknow whether this hag occucred who has not Mastered, he prineiples of Jurlepriidence, clear giyas, unamblguods texts, and anything that eould Intervene in these things; and to know this one ts obliged to learned usul abfigh.and immerse oneselfin the ocean of figh.' (imam Shihab al-Din al-Qarafi, al-Purng (Calro, 134 8), TI, 109.)

l4 8) The uleraa usually recognize seven differentdegreesof Muslinss from the polntof viewol their learning, and: for those who are Interested they nre listed bere, in order of scholarly status, (1/2) The taustohidun fit-shar* (Mujtohids in the Shari'y) and the mujtah{duni'l-madhhab (Mujjalids in the Machhab) have already been,

mentinnod, (3) Muftohidun f't-masa'il(Mujeahids on Particnlar Issues) are seholarswho remain within a schorl, +

but are competent to exercise [tihad on certain aspects within it which they know thoroughly. (4) Ashab al-

Takhrij(Resolvers of Ambiguity), why aye competentio indicate which ylewwas preferablein cases of ambiguity, *

orreganiing sultability to prevailing conditions’ (5) Ashad al-Tarjih (People of Assessment}are'thase tompetent to make comparisons nnd clistingw'sh the correct (sohil) ond the preferred (rajih, arjali) and the agreed-upon

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(musta biha) views from the weak ones’ inside the madhhab. (6) Ashab al-Tashih (People of Correction): ‘those

who could distinguish between the manifest (2ohir al-riwoyo) and the rare and ohsare {noxcadin) views of the _ Schouls of their following.” (7) Mugellidun: the ‘emul; ators, including all noa-schabasy. (Kamab, 357-9. Seé also Bilmeu, 1, 250-3, 324-6.) Of these seven categories, only the first three are considered to be mujtahids.

[49] This is explained by iment al-Shatibi in the context of the following passage, all of whichis --

quoted hert to furnish # further Swwamary of the orthodox position On taglid.tA person obliged to Follow the ules Of thé Shari'a mins fall ito ote of three categéries. Di] Hemky be A ruytahid, . jawhich caso he Will practice the Jega) conelusions to which hleYtlhad leads him, Pt) He maybe. 2 complete mugallid, unappratsed of the Jnowledge required. In his case, he must have'a guide

. te lead him, and an arbiturtor to give judgements for him, and a scholar fo emulate. Obviously, he follows the guide only inbfs capacityas man possessed ofthexequisitc knowledge. Thepréof for thisisthatifhe knows, or even suspects, thathe doesnatin factpossessit, itisnotpermissible far him to follow him orto accepthis judgement; in fact, no individual, whethereducated érnot,

should think of follo wing-through taglid someone who helmows is notqualified, in the way that

sick man should not puthimsélfin the hands of someone whom he knows Is nota doctor, [TT]

guestions. In his case, one must either recognize his preferences and views, or not. If they are Tecoguized, then he becomes liken mujtchidonthatissue; iftheyare not then hemust he.classed zlone with other ordinary non-specialist Muslims, who are obliged to ZoHow FMujtahids, (al- Mtisam (Cairo, 1913-4] LHL, 251-3.) : ‘ _ ;

. . a. Fl An equivalent explanation of the'status of the suttabi* 6 given by Amia:, 1¥,306-7:Ifanon. scholar, not qualified to make titthad, has acquired som tof the lnowledgereauired for titihad, : he must follow the verdicts of the Mujtahids, Thisisthe view of the correct scholars, although it has been rejectea by some of the Mu"tazilites In Faghdad, who state: “That fs not allowable, dhe isfollowing.” But the Tina" and the intellect,

[50] A mugalti# is a Muslim who practices faglid, which isthe Shari'a orm fai ;

person of thejudgement ofa ardent LaSt8)Thevoet meee nese be sue slaY who authen tically transmits the verdict ofa muptahid. “Astor theordiiary PEDAL omg i ai obllz® pee upon him to make tdglid of the wemz" (Bajt, $783.) The actual choice of ehleh mies we yo" "a! cpails - should follows clearlya major responsibility, "A mugallid may only make taghoticoe, = ey, od . be ee 7 gholert i exanilaing his credentials, andubtuining relinble third-party testimony to his sche _ Ran yi i “st078 one who * . $11). (fmani tha Furak, héwever hulds thatn mibjtahid's own teli-testimony tes ied . an a of ov [ io for ® Gn to Ob2erva (yagi) that ta ly Neceasiiy: 1a follow the destnuyftahid evallable; Wea ay ~ rae nat it is a - al-Baji ($794). See also Shinui (;.. 72): Iris not permissible for someone asking fora fares 3 ie oe in kale wecon lest he ask someone who hasno Knuwdedge of the,figh. Instead itis obligatory (W9) for hig 7 Ry, at “atl 63 * ssi scholar’s learnlog and tristwérthiness.” And Qarafi (IT, 110): The Salaf, maj Allah be pleased ys . gee al for then. A gd ho

Intensely reluctant to sive fatwas, Imam Malik sald, "A scholarshould not Bir fetus unit he's ‘ ow wey"

outa Manet : ; ‘ tcf ar competent to do so both by himself aad by others." In other Words, the scholars a be wii jose aaistenee oftaql ra

gthat tine ttnetlont ™

. qualifientions. Imam Malliccid now begio to aive Jatwos until he had been given penmission Wer) eay, undartertl dls avait forty turbaned ones Cecholars).' Et F ‘ . ror they wed ta . : : — UnAatl for the

: r Ee of se the dee" e me of transmission (tawa Tine ¢

o Ibn Khalilun, Mugae

2 . ; - a a eee [s1] ‘The dali fur our position is Allah's eommandmient: Se ask the peuple Of Fememirnay you do not know, For if we forbade teglid, tyeryone wouldneed tabecomnean advanced si.

. : gee olf and no-one would be able Chave time] to earn anything, and the earth would lie unnhiat see 0

stulte pivefatiuas, and fylami we soewig hed learnt the Koran, der 1, ambiguous Qmutashabihy ‘lfatures! Andl also Tavan al-D heUlona, One proof of this Ls wiatulned the Wegree of {tiled teetomething which happened j “Ue contrary, they guve th

Tlamie ruling atull, and this isi Vivlation ofthe Ijima', or, alterna Bvely, he will adopt an Lizz ruling, either by investigating the proofs {nvolved, or hy taqlid. Butan adequate investigalord the proofs is not possible for him: for it ould oblige bim, and al] humanity, fully to invesip: the dalits pertaining to the issues, thereby distracting them, from thels lending to the extinetion of crafts and the min ofthe the dalils for the legitimacy of following the verdlete ° who looks Into these discussions and Seeksto deduce

right tools, namely, ic science of the rulings of th

Seiurees of incoms ail World.’ (Amidi, Thkam, TV, 307-8.) Gned

Fthe scholars Is ou thenowledge thatanyat

rulings ofthe Shanitg Will need tochaye be

principles of rhetorle and thy Arabiclanguage, and Ott Sclencesnten and ea alt figh tlt She thaltts mong the “ “und which mast people cannot attain tovAnd even ifsome F them 12 are not easily nequired Fi Taha Tha sy ay di) iy after long study, Investigation und very great effort, whieh ie Pal tot, they onlydoi Bra, is Yah, “Ate themselves entirely to this and du nothing else; and if ordinary aig Fequire-that dey devitt Whe “S ADU Tlung yr to-do this, there would be no cultivation, commerce, or Othep enplo Were Under the obligation “ie ‘Zen, (1499) for the continuance of humanity = and itis the fima “of the Umma ta Which are essenthl “usted ore yy

7 “ . “Tis Is Something which : YS teen 4

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oer

angthe scholars that this verse ls a Coramandment to whoever doesnotknowa ruk -— neone who does. Almast nil the scholars of val olsfigh hay "oF agew som h

muftahic”(ad-Buit, yy

~ i ‘d pivobtastory for an ordinary person tu follows scholar whe isa & goin KE 7) * ° . +”

7 8 niet ‘The Companions and Followers used to Sivefatwason legal issues maya ther. Attimes they would mention the source, if this was Necessary,while ae aNimitthemselvesto specifying the ruling? Al-Ghazall (ntustasfz, i" Hiss ae eect teglid and fotwa among the Companions is z dalilfor the mera i a distinctlon: ‘The ‘proof that taglfd S* obligetory Ly the Ymat of the . rer ehey ured to give fatwas to the ordlnacy people and didnot contnjand them to

feqrce of inhadl for themselves, This Is Snown necessarily (61%daruna) ay by je the eee’ mission (tawatur) from both the scholars and the non-scholare among | ee na Mugealdima (Bulaq ed, p, 216): ‘Not all the Companions were

ore sues, and [slanrwas not taken from all ofthen. ot '

That privilege was held only felte oe the Koran, Imew what It contalned by what of abrogated and abrogating ed (omutaskabik) and perspicaous (mschkarn) expreasions, and [ts ‘other pesteres! Aud also Imam al-Bajl (6793): ‘Ordinary Muslims bave no alternative but to [peter One proof of this is the {ima * of the Companions, for those among ther who jeune? che degree of ffeihad used to ask the ulema of the Companions for the Correct jeesomessing which happened to them. Not one of the Companions criticized ther for so , jotie contrary, they gave them faftons on. the issues they had asked about, without pring thera ertelllng them to derive the rulings themse)ves [from the Korah ang Sunna].” fleamel-Amidi: innote 49 above. « . (Geruylis among the Camparionsiis given by Fuwayni (851494-9); they Include the Four Take iba “Ubeydillah, Abd al-Rahmaan ibn “Awé, and Sad ibn Abi Wagaqas, Others (eft, such as Abu Hurayra, who despite his nsany narrations of hadiths was never ; (he bis jutgements (51497). Shirazt (p. 52) confirms the obvious polnt that some, :

(Beare considered more worthy of being followed {n Jegal matters than others,

fPersee show, he ulema regard a mastery of the Arable lengusge os one of the essential Peeiesiioy Ue Shori'a cirectly fron) the Koran and Sunna, Sce Jusyaynt, §§70-216, where this ts | es A

"Avery young yp: . BRChe wad comet P * And very dilGeule oul et by the pent giehonte bp ty,

. (8) Thists on Important

, Lor] Ibw Abi Shayba, Musannay, 10, 70.

een ae

Ms that fare SLAY Fa en orzo te hers

‘ames fn Caf . 4403), alsp contains mya roinsas3 MA. Anctiser wt iy lien, the Kitab al Ladi (Bcseat,

(56) Published ing Volumes fg andestisiaig 286 and : ; np.

[57] Edited by o.1, shA'aaml, Belrut; s39t097,

{s9] Needless to Say, the amateurs wha deny taglid and tryty derive the Zallngs for themscivcy

orantofthe derivative sources of Shari athan tvey areatthe Koran tndSunca

recs do not only include the famous ones sack arijma’ and qiyes. For instances, ‘he fatwas of the Compinions are considered by thé ulemats bla Sucthes fmpertact source of Jegislation. mantal-Shafi"l throughout his We truphtthat diya (bloodmoney) was increased in cases af crimes coramitted in the Haramayn or the Sacred Months, and hi had no basis for this other than the Sthtemenits of the Companions." (Juwayni, 51001) :

(60) There Ina yerslon pf thls hodith fn Timidhi (Tudo, 2) tet attached to an lsnad which imciudea Yack a Zlyad. whg Iswonk, * ort ‘

(62) Sakhuwst.34-5.

[63] Sakhawl742. *

» [64] For a crunplete list of vie most famous scholars of Islam, and the nadbhahs to which they belonged sez Sayf

al-Din Ahmad, AbAlbani Unveiled, 97-9.

—- a

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"i g ¢ r. ‘the Traveller - [65] Forthese writers seeAlmad in Sa oa sie saa, i, -60, 1057-9. The attitude of Ibn euasis ‘ens oe a oeueen vsvnnoagatixneseems0 suggest that anyBinslimis quelified to as ste nahogr divedtly fron the Koran and Sunna. Bat in other passages he takes a nore ‘s concaties For jnstance, he writes: ‘Is it permissible caren ate aa. ous madhhab of his Imam to give a fatwa in accordance with Se ane correct ia his View? [The answer is] if he is [simply] following ae nies ol cet procedures of fjtihad and aecertnining the prooi-texts [ie isa a I 7 F 7 ts permitted to Yollow tab View Of Another muffahfd-whleh he gohaides worredt.! (77 art Miseaggl"in, IV, 237.) This ls a broad approach, but ls nonetheless very fat from the notion simply following the ‘dalif every tinie rathér than following a qualified interpreter. This quote 2nd several others are givenby Shaykhal-But to show the varfousopinionsheldby Ibn al-Qayyim on this issue, which, according to the Shayich, reveal ‘reraarkable conteadicsions’, (ALButi, 56- Go.)

[é] Many of Iba Taymiye's warks exist only as single manuseripts; and even the others, when compared to the warks of the Ereat scholars such as al-Suyutiand 2] -Nawavwi, seem to have been cupied ouly very rarely. See'the Lint of ancient manuscripts of his works given by C. Brockelmana, Geschichte der ardiéschen Litteratur (2-4, Ed. Leiden, 1543-9), IL 126-7, Supplement, U, s99-226; ah 4

i Lé7] “hbdah; in tun, was influenced by his teacher and coll (835-97). Afghani was associated with that transitional 'y created the likes of Namik Kemal and (somewhat Jater) Zia dezply traumatized by the success of the Western powers and falure, and who Sought a cuhturad renewal by jettisoniy malncalning authenticity byretuining a‘pristine Sssener, In this they were inspired, consclously | oF otherwise, by the wider 194 century quest for authenticity: the Bationalist Philosophers Merder and Le Bon, who had oatlined a similar revivalist-essentiulist ‘Project for France wid: ‘Germany based on the ‘original Sources" of their natio

mal cultures, had been translated a id wer widely seed Jn the Muslim world at the time. Afghani “ne

aboralor Jamal al-Din al-Afghant Sung Ottoman” generation which.” Gokalp and Sati? al-Husazi: men

the spectacte of Ottoman military . ng Ristorie Mush ‘culture while

Kenan cuncersing the detline

of Atal’ civilization, itbecomes established, this

be wrote of Islam: Feligionty :

ded to stifle the sclences and ft

. “Xhajnadi, of which an smended version exists In English, ‘This text arauseit considernble concern wrung te

its designs by despotism.’ (Reply to Renan, translated by N,

ie.

Jperdalinn: Foliticaland Religious Writings ofSayyid Jamatabdin tie, Los Angeles,i968), 183, 187. Its hanily surprising that “Abdu shoula suppress the Arabic translation ofthiswork! #

» “ meatal aa)

Afghan?s refornilst ideology led ‘him to found a national political party inFos o ’ . ; ny] hich ‘all Christians and Jey tt

“Watant, Including not only Mualiros, but Ln w! Wa Whe ling wine

“oF Egypt were'eliglble for membershty.* (Jamal Ahmed, ‘The Treatlectual Orlptns ve : Natsnatinn London, 1960), 16.) Tala depdbpure from traditlonal telanig Nptldas ef gh-,

ff :

canbeacenaen product of Afghant’y epocitia attitude to tegtid. Dut tts Dval' own Jatin

often far more radical, perhaps because “Abduh's ‘partiality for the Britis) Atutheriy wy gfe me eel ” pursuedsimllar)ines ofveformand gavo hint support' (Ahmed, 35). Weare Notsurprisedtztg., ar ak co and pene ey onaot es that the Rritish governor of Egypt, Lord Cromer, wrote: ‘Tor many years | Baveto Mchanny ante! pyalbe gah yea peep : , : j 3 wy ye # Abdu all the’encouragement In my power"(Lord Cromer, Modern Egypt tNew Yer, 2908).y wo a orknoml® “ anil ai 150). An exaniple Is the declaratlonin ‘Abduh's tqfsir (much of which fs by Ridi) thatthe ttesig, rmert veausfevent {ror se “ * 4 Pe . che ati of statues fs halal. The same argument was belng Invoked by Ataturk, who, when asked why, pa a ordinary P ih a ; ik idles gata dy opinie was erecting a statue of himself in Ankara, elabmed that ‘the maklng of stutues Js not forbidis 2 iil jestrom, thely © ws aa today as It was when Muslims were jist out of Idolatry, nnd that It ls nceéssary forthe Tukey wal v notovet be fous, he ™ * . seta dl ‘ practice this art, foritis one of the arts ofclyilization’, (C. Adam, Jelamand Modernism In Egypt Bp gis nin miay We neve

[London, 1933), 193-4… * "

. oe

(68) A poorly-argued but well-financed cxnple of bool In this category isa short text by the Saudi writerd-

len when It first sppeared fn the 39608, and Shoykh Sa‘id Ramndan al-Rutt's book: was [in (net writen specifically In refutation of it, The second and subsequent editions of al-Butl's work, which shows hovy Khojiiad i systematically mulaquoted and distorted the,texts, contain n preface which Includas an ncenunt of f mechit between al-Buti and the Albanian weiter Maste al-Din al-Albanl, who was assoclated with Khajnadl’s Kens. The : three-hour meeling, which was taped; was curfous Inasmuch xs a-Albuni denied that Khafnnd[ was vtaringtat all Muslims can derive rulings directly from the Koran: arid Sunua, For Instance where Khajnadl makes the Sppareuily misleading statement that “As for the Madithalis, these ure the views and Uuihads of She ulenia on certain Issues; and neither Allah nor His messenger have compelled nnyune ig follow ther,’ Al-Albunt explalns that ‘anyone! (ohac here tu fict refers to ‘anyone qualified to makegjtihad, (ALDuti, 13.) Al-Albant went oa to cile several other Instances of how readers had unfortunately misunderstood Khajnady's Intention. Shaykh al- ‘Buti, quite Teasonably, replied jo the Albanlan writer; ‘No scholar would ever use language j aud make such generalizations, and Intend to say something sb different tawhar he Retually and clearly says; in ‘Ket, no-one would understand his words as you have Interpreted them,* Alban SFespunse was: The man

Nuch a loose way

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alii that day’ weerna nlege qj nae oven the moal alinpla Jurtal aaa and toleratlon, Th

aud the Saudi wetter al Tuwayfled | ‘dsora ol-Muslima, uses the Mowe

sar ce in pubillicy “ithe Alban in th

while Uelattes, |

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igarabiowas that ofa foreigner, so he was pot able to make himse! fas de ies got? 3 vernon give bim the benefit of the doubt and impose the ase Ser asan Arbus i © teal interpre is ek sa) bot al-Albant, despite his protestations, is reliably saidio b hati pie tailabfloh - Bow that tostid ig

wr, Wark! .*

Jeni geo quote the following guiding principles of Islaratejurisp i a wa. inked peed not be condernoed as [objectively] wrong unless all aan i (mt 5 epajant IT, g83-) Irnarn a1-Dafuw (1, 575) also makes the follow! as On i pet ofopiniunamons the ulema area great mercy (raha) upon this Um tices pth declared: “It would not please me If the Ciligiihaita al theme Umar ghd al ‘| and peace, bad not disagreed, for had they not done so, no mercy mis ee ga'ld, one of the great hadith narrators among Ube Sihovmatcomem am people ofknowledge aren people of broadness Calif tanel"a). They wossheas woe C ajich ure ifferent Fro" cach other, und nu scholar reprosches another etveter for hie ae Hawerets ifordinary people tool (hele rullnge wtralght fron the Koraq ond Sete, enn euien desires, thely’ oplafona would be far move discordant than Uhia, and the Pour ' .

old longer be four, burthusande. Should thiol day come, 1 wil baling Cinuster epen

ppc vs Mutling vay’ we D

over Jive ta nee [tr 1 -

gt ubat day’ Heeme alrgady tobe upon ug, anil that The ree tttag widening ofthe

: the most almpl Juridient matters Ie no longer tempered hy the erpqwitie -

jpiuert on even ftoclplet of politenes® an fact and che Saudi writer wl-Tuwayjlel fx a typleal Instance, The former veriten, La hls book

fbeltfor's olsMustirma, uses the Koran and Sunna to defend his views Chat a worgan may josther face fn public; while the latter, In hisalsarin alMeshhur “ala AAl ai-Tuborrs wat- firjatiacks Alban Inthe most vituperative terms for failing to draw from the revraled sowces

d toleration, The flercely Insulting debate between Nasir al-Da ab

Unoppesedly obviows conclusion that women nist always veil their faces from non-makram : Other example of this bitter hatred generation by the non-Madhheb style of discord, based

beanpts at direct detinbat, are unfortunately many Hardly any mosque er Islamic . feution nowadays sceims to be free of them. :

. ‘

boltion is to recall the principle referred to above, namely tbat hwo mujtalids can hold - Pngepinions on the furu*, and still be rewarded by Allah, whileboth opinions will eonstimute beste Agi. Guwayni, §$1455-S; Rilmen, I, 249) This is clearly indicated in the Koranic And Daud and Sulayman, when they gave Judgement concerning the field, when WY steep had scrayed ‘and brduted therein by night: end We were weimess to their

tation wecacs -

% fotwas and Sulayman ‘ (21:78-9) The two Prophets, andhenceDaud's judg,

mone,

Judgement, We mes Fi

winakt Co unde: ie : mite, rstimd [the co¥e}; and Unto ench of them We gave * vupon them be peace, had given different

Prophets they were infallible (ma*non),

"s was the more correct, but as

Smentwas agerptable also.> + Understanding : ‘

: ‘hb Is the key “os °

i to, * z Imex somnuarizes the ioc the spirit of tolerance among Muslishs, Shaykh D basic docttine, the shiguto posl¥on as follows: "The fundumantels siaezaih 7 ~~

q Ratory status of the fi . Cee subject of universal lems fice ‘orms of worship, and the ethical virtues, are the suhseribe. Those wa ns m Greenient to which everyone is rellgiously obliged to endiany Maslima are a from the rullnge accepted by the overwhelming ‘majority of (probf-texts) establishty nie to be the people of bid’a and misguldance, since the dalils differences of opint : ¥ thent are clenr. But tt ts not a violation of any Tslanvc obligation for on'to ealat concerning the fir’ (branches) and juz'iyy at (accondary Issues}

which devolve fron th ese baslepriuclyles. Trt fact, such differences az the Dhue wisdom (Bilmen 1, 39) ws renceg aren “a expression of

wmaenee. ay ating. Ifthe Jurlsts nay legitiantély disagree howshould the Istamic cami. tas Pie _ Vhroughiqut lta territories? Clearly, the law mugt be the same eonseeinr is; ates states the pnewer clearly: The head of siqte gives a Judgement + y ecaceabearaiatr ss nye whieh huva been raachedby) Yethad, and ha dows away belt the

] igea thona who follow (/tliad verdicts whichconfilctwiththeleadofatatn's * toadepthia verdict, (Qarafi, 11, 109; afirrned also ln Anal, TV, 275-4.) Obviously thislsa counsel specifically for gadir, and sipplles ony to questions pf public law, not ta rulings oa warship.”

(Go) Thinveas undersund as erly na the xB eonnuty,A-Dual quotes Shah Wallullah asDahine gigarallahal Bofigha, J, 192) as pbserviog: The Ummu np:lu the prewat date . has ununirnously agreed. thar these fyar recorded madhhobs may be followed by way of tonlid. ta its there are manifest benefits and advantages, : especiallyin these days ia which enthusfasm has dlmmied greally, and souls have been glvento driak oftheir awn passions, 30 that everyone with an opinion Ws delighted with hia aptalon.' This reminds us that Islam fi not 0 fotalisirim relighon which dentes the possibility and legilmacy of variant opinions, The Muslim scholars are agreed thal the mujtahid cannot incur a sin in regard lo his legitimate {jtZud exercised ta derivejndgementgal + Shari'a. [Orly the likes of] Bishr al-Mayigl, Tn “Aliyys, Abu Bakr'sl-Asamm and the denlers af qlyas, such as" the Ma*vaites andthe Thalver Shia, believe that ere fs only one true wuling ath Segal fesue, s0 that shoever docs not attain lo jis a sinner’ (Amnidl, IV, 244.) This fa of course an aspect ofthe Dirine mercy, and a token of the sane and gencroas breadth of Islam. “Alla desires ease for you, not difficulty: (Koran, 2-185) fam seal to puske things emsy, vet to make them more difficult.” (Bukhari, “Um, 12) Never was Allah's Messenger,

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=Sonies of the Fire." Eves lmam el-Sha Complexity of the figh, did not Bilmen, Las6.) .

On) be Iman al-Dajani, Il, 579: ‘By Allah, this View

(thet rdinary People should nel fp) Madhhobs) fe Socding ets thon aN atletapt ty fling the door Wide open for people's individuat preter Y Liming the book and the Sunn inuy Playthiogs to Le Wanipulated by those deluded fools, drs Ven “ompounded Decrees ang their Corrupt imaginings his Obvinus thar Personal Drelerénees y ent Dongle © at their conetuston

legs, §, what will |

are uble nner inthe ay OF their ie According to heir prefetencer .

(74) Nowe, 17-4, Tie me imay ef, “eed LY Tra, Nyaze ‘Tagtid, AS Us tiy Cd fron, dng erty, de the foundation af all relay Onalips based op, UUs, Mee Uh, Crees, Paticn;

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j discussed by the earlier Jurists, a —

A * . ,

1 . 3.° provide withi ing j

; . 7 Within the text, the meaning in Fo af the entj

; terminology used by the earlier Saakg ™ ™

I. ” Pega the dite topics of lai law in on improved mn : unique arrangement that meets Rot only the sequirenents of

traditional Islamic law, but also takes Jato account the sends of

modern Jaw, .

been discussed in a comprehensive book on usii l-figh, which will be published, hopefully, by the International Institute otldamic Troughs, », The’ present book deals briefly with usill al-figh 23 well as with Sa. . As such it covers the entive field of Islamic law aad jusispradense. . . ‘ f

i *

2 History of Islamic Law

” The history of Islamic law is divided into seven periods, The state of the society in the pre-Islamic period may be examined before studying

these periods: -.

2:1 Nature of Pre-Islamic Law

Arab society, before Islam, was based upon tzibal loyalties, and these ‘= turn arose from blood kinship, adoption and affiliation. Vicleace tribal wars, raids and plunder were the norm, The fainily structure was weak rotlyer phage aperchrderepatireaelvepfecd sacle tance and were often subjected to concubinage a permissive society. Despite this type of existence, the law was not totally rudimentary.

The customary law regulated relations between the members of the society. eee ee Ee anes ol male ee actions w: se governed by the customary Jaw of net obligations. The existence of this law is evident from : amaane ogy used in the Qur'sn, The enforcement of the commercial

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[6S + cgrried on by the traders themselves

fadinah, there were elementary: forms of land tenure.

Criminal Jaw had advanced from the stage of strict liatility.to that of a system of reparations (diyat). An elementary form of legal admin- §stration was also in existence. It was, administered mostly. through,

arbiters called hakem. Tt was at this juncture th

tion engulfed the Arab Peninsula and made far-reaching modifications

zn the existing law, modifications that not only changed the life of the Arabs, but also the future course of history. Over time, ‘the primitive Yaw of the Arabs was- gradually converted into a mature legal system thet served many nations and peoples. * Wc, ane

2.2 The First Period

The first period in the history of Islamic lew commences with revela- tion and ends with it (610 A.D. to 632 A.D.).-The first source of law during this petiod was the Qur’én, ‘The Qur’an:The Qur’dn was revealed o of which over 12 years represent the Makkaa period prior to the Hi- jrah and 10 years fall within the Madinan period. The laws Taid down in the Qur'an coveted: the position of women, childzen, orphans end the week; restrictions on the laxity of.:oréls sad -atrengthoning of the mariage tie and family life; the law of retaliation, theft, drinking, gambling,"prohibition of usury and interest in all forms, and the per- formance of contracts. Most of these laws’ were yevealed in & gradual smanner in response to issues and cases faced by the Muslims: , The Sunnah: The Sunnah was the second source of law daring this period. The Sunnah too was laid down in response to actual eases like the verses of the Qur’an, The Sunnah did not enjoy the status of a text in this period, but it-did so for later periods, when it was relied upon for the derivation of the rules. In this period it w cases end providing legal guidance to the Muslims: Pigh: Figh was not developed as an independ: riod. Law was clothed in the general. ethical and moral'teachings of the sharf’ah. Revelation began laying emphasis on general concepts of ihsGn, gist, ‘adl, afw and compassion for the weaker members of the s0- ciety. Once the community had fully absorbed the general objectives of the shori‘ah detailed rules were Jeid down. The law of homicide prevailing in’ pre-Islamic times was based on a system of private jus- tice, and was-dominated by the notion of tribal vengeance. This was radically allered and replaced by .gisas (retaliation), Serual offences,

‘through ‘their Jaw merchant, In .

at the law of Islam was revealed. Revelo~. .

while the second wes the Sunnah. « ; ver a period of abonk 25 years, -

ag directly settling. |

ent subjést in this pe- -

(6d)

which were non-existent, were subj

penalties for a ected too.

shent, The drinking of wine was ‘grad = . punisliable. © 39 Eredually condemaed aad go “his,

Changes in society: The formati sis stroyed the roots-of tribalism and ene: nate MIC seded by the family as a basic unit of saciet ve UP Wes tote} -* position of women was totelly anion aes result of wii regulated by, injuictione of faliplsy sad bere was condemned and declared’a wer ageinst ree While wsizy (rae, All transactions involving gembling and dacepti and lis Propies addition to all this, e large number of eaiechane mete eliminated 5 down which guided the future generations to fom, dae Were bi . Tales,

’ Compilation: The Qur’an was qi recorded 'in this period. A ‘by the soz, |

" ofthe Prophet (p.b.u.h). The Sunnah and judicial decisions of this

‘riod were not recorded like the Qur’a ; : an, but were preserved i 7 ory of the Companions. These ached the eg Ul va the men. narrations: Perhaps, the reason why the Sunnch Sea Moreeg this early period was the fear of jts being mixed rp a x i . . . as ‘ = ra . . . . . . cellars

2.3 .The Second Period: al-Khulafa’ al-Rashidan

‘This period begins with the death of the Prophet (p.buh), in!

41 A\H,y and ends with the EE re sini roma ibn AbT Sufyfn, in the year 4] A.H,'In ‘this period the C pune reached different parts of the globe performing Shimon chen generals, judges and mujtis. The rapid growth of the Islamic stat ml interaction with other races influenced the growth of figh. _ Sources, of law: To the sources of the first period, another sOurte wes added in this period. This was ijma‘ (consensus of opinion); This arose from the -practice of the Orthodox Caliphs of conning ihe

4 Companions on important issues. It is obvious that some of the Com- . panions were using other methods too like giyds, istihsiin and moslchah

muréalah, although they were not known ‘by these names during this period,-In this petiod, the Qur’an was collected and compiled and fur ther soine rules.could be discerned in the practice of the Companions with respect to the acceptance of traditions, however, the Companiozs

_ inthis period were very strict in accepting traditions. . _ © It was in this period that thé foundations of Islamic legal system

were refined and developed. A large number of legal principles west

_laid down and established through the decisions of the Companieas.

The period is-characterized -by freedoin of expressing opiliions. Tk wes

these opinions that became precedents for later periods. ,- r

Scanned with CamScanner Islamic Jurisprudence 52.5 i : : } f ae . 3 « “phe Third Period: Tabi‘in (Followers) a jod beeins in’ the year 41 AM. and extends upto ear] 2nd phils Pe of ijrah (132 A.I]). The entire period, then, fells within the rule? cs of figh: The sources of Islamic lew in this era were the same ur an ‘mn the one preceding it; namely, the Qur'an, the Sunnah, and tho {analogy and istifsdn became much morte systematic

oi The use © ;

mee nd of this period through the methods of the founders of 1 ols, The occurrence of ijmd‘ with the participation cf all thee iets of the ummah became more difficult. It was now confined ae 5 and hence the schools of each region. This is how we find to eid in most books of figh: In other words, a claim of ijma* in i nates perio“ usunlly means consensus on a principle of Jaw within schoo! of 1a. se - ‘ or wey

gation of Traditions: 7 he narration, of tradi Hons became ‘8 red. The need for knowing traditions had also increased due to dom © coming up for.deyision, The areas in which knowledgenb]+ Compas 08 lived became centres of learning of truditions and fich. The growing, need for tra 08 in the merracion of traditions. False tradjtions compelled some of the incists to evolve Very strict rules for checking the authenticity. This pare | affected the development of Islamic law. the Rise of the Marly Schools: This period saw tha birth of so {the greatest Juriste of Islam, Ab(eHantfah wag born Jn 80 A.H. and e was 52 years of age at the close of this pérlod. His‘student Abd ‘tsuf (b. 113 AHL) must have been close to finishing his education.'

ly scho

tuhammad al-Shaybani was born in 132 A.H. and must have studied _

nder his teacher for a-few years, because Abi Hantfah died ‘in 150 “H, Milik ibn Anas was born in 95 A.H. and was almost 40 years

dat the close of the period, Besides these jurists, there were many

her jurists like Ibiahim al-Nakha‘, al-Awza'T, Ibn Abi Layld and a

1 for traditions as precedents also ted to falseiced |

st of other who lived during.this period. Many of these jurists were

pointed gédis and theit decisions were later recorded by Muhammad

Shaybant in his wel] known books. Collectively; these early schools decided such es that the foundations of Islamic law as 8 legal system were firmly | It's pethaps for this reason that Joseph Schacht maintained that law as we know it today ‘was more or Jess settled in this et no

a & large number of.

(for his own weil, °

$ law was then Tecorded by al-Shaybani, in the next period, school, but also for those like Ibn Abi Layla and Us Us

Zo. nina 5 {slamic Jurisprudence 13

2.5 The Fourth Period: Growth

ae Period. begins in early 2nd century Hijrah (132 AH.) and con-

Inues upto 350 A.H. thus spreading over a period of more than 200 years. It stands out, as comparéd to the Periods which preceded it and those which followed it, because of three main distinctions:

1, Figh flourished in this period and achieved maturity.

Compilation of all kinds of knowledge took place, the most re- markable being that of figh., . ¢
The remaining schools of figh were formed in this period and

established.

Growth and compilation of figh: There were many factors which -

had‘an impact on the growth of figh, the most ‘important of these were: the concern of the Abbasices for figh and the fugaha’, most of whom were appointed gadis; freedom of expressing juristic opinions; the knowledge movement made unrivalled progress in every field lead-

ing to compilation and translation of innumerable works. The Muslim

scholars in general and the fugaha’ in particular, benefited immensely

from these developnients,

The compilation of figh began toward the end of the period of Bani

Umayyah. An outstanding example is Malik’s Muwatia’ in which he

has recorded the decisions from ‘A’isliah, Ibn ‘Umar, Ibn ‘Abbas and

"+ others, Ibr8htma al:Nalchn't collected the opinions of his teachers, The wes followed by AbO Yasuf's, Kitdb-aleifhardj; The ficst true works of ,

figh, however, that determined thé shape of all future works on Islamic law were Imam Muhammad al-Shaybani’s books called the Zahir al-

Riwayoh, As these works are’ huge, it appears that the work. must +

have commenced shortly after the death of Abii Hantfah in 160 A.H- Al-Shaybani died in 189 A.H. Fifty years later, al-Shafit wrote his, book al-Risalah, which is the first book on usil al-figh. He also wrote his books called al-Umm and Ikhtilaf al-Hadith. The first major work of the Maliki school, called al-Mudawwanah al-Kubra, was compiled during the early part of the third century by Sabniin, This was a compilation of the opinions given by Ibn al-Qasim on the issues settled in al-Shaybani’s books. Ahmad ibn Hanbal was born in 164 A.H. and

“died in 241 AH. He was primarily a traditionist and collected around

of his Musnad.- His school was

40,000 traditions in the six, volumes developed Jater by his students. - ae so

During this period, figh became an independent science in which great thinkers specialized. Islamic History and history in ‘general is: witness to the achievements of these scholars. Usiil al figh as a science

o-0-0 oad SOI RARE EEO TP EE HE

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il igor pat

ws PNG ee follow. The work of these centuries stood

. o” gfor use to those who were to r oft within reach of évery scholar aspiring to be a jurist.

the Sunnok passed

Compilation of the Sunnah; The. compilation of a ‘

ghrough three phases: — :

The-first phase. The first phase commences in early 2nd century

Hijrah when ‘Umar ibn Abdul ‘Aziz, one year prior to his death, asked his’ representative. in Madinah, Abd Bakr Muhammad ibn ‘Amir ibn Haim,-to record the traditions of the Prophet . (p.b.u.b.). Ibn Iazm recorded traditions in the form of a book, which unfortunately the IChalifah,was not able to read himself ‘as death had overtaken him: Thus began the movernent for the recording of traditions. All areas of the Muslim world partici- pated in this noble task. Traditions were collected in Makkah by Ibn Jurayj, ia Madineh by Muhammad ibn Ishaq and Malik ibn ‘Anas, in Basrah by al-Rabi‘ ibn Sabih and Hammad ibn Salamah, in Kifah by Sufyan al-Thawsi, in Syria by al-Awaa'7, in Yemen by Ma‘miar, in Khurdaein by iba al-Mubirak, and in Egypt * by al-Layth ibn Sad: The method adopted by theae ‘ulamk! wah - to collect ‘and arrange traditions according, to subjects in sepa- rate chapters like traditions pertaining to saldt, sales (buyii').

The second phase The setond phage begins with the ced of the 2nd century Hijrah. During this period the ‘ulami’ were occupied with collecting the traditions {n accordance with the methods of masanid. The.content of this method was to collect traditions, which a particular Contpanion had narrafbdt like Abu Hurayrah - for example, in one chapter, This would be called musnad of Abii Hurayrah and the. traditions in it dealt with different subjects. The basis of such compilation was the unity of the narrator not

_ the unity of the subject matter as against the previous method, The foremost of these masdnid were of ‘Abd Allah ibn Musa al-K iff, of Hammad al-IChazzi, of Ishig ibn Rahwih, of Uthmin - ibn Shaybah: Though there were many of these\masinid they

_ have not reached us except-that of Imam Ahmad iba Hanbal,.

through which is known'the method adopted in the zaasanid. .

The third phase. The third phase begins in the middleof the 3rd’ Century Hijrah and continues till its end. In this age the ‘ulama’" distinguished the sahth from the ghayr sahify and each Imam of

the traditions Jajid: down, conditions for judging the traditions -and / &

which are sometimes similar to those laid down by-others sometimes different. These Imams compiled their books in ac- cordance with the chapteérs of figh recording under each head

trated on collecting what had been’ 2.6 ‘The Fifth Perio

that we deem as the original sources of Islamic law is a product of this literature of the Shafi'T and Hanbali

traditions related to a single subject alone, IF

method that was adopted for the compilation of th st Sang . & Unnoh ; : a

. the first phase. : The followers of this method are the six nz privilege of preserving ‘the Sunnah from ae me have the Muhammad ibn Isma'd] .al-Bukhart’(d. 266 AIT Vk They tte: Hajjaj al-Nisipirt (4. 261 A.H), Abii Dawng gay’ eesti ~ , Ash‘at ul-Sijjistint (d. 275), Abi ‘Isa Muhainmad iho? al. Salm¥ al-Tirmidhi (d. 279 A.1.), Abii ‘Abd Allah Sa al. ibn-Yazid nl-Quawayni better known es Ibn Majah (a tag and AbG ‘Abd al-Rahman Ahmad ibn Shuhay} shape AN. A.H,). The books enjoy a great status jn Islamic litera} (d. 393 for the later jurists they ore the second source of figh afer nt ; te

Qur'an, :

Compilation of Tafair During the ‘time of the Tabi‘, os ‘ ; t

fafsir had increased manifold, espectally the tafsir of the ema te

ing to the ahkam. These {utorpretationa were narrated moatly Es = up with the Sunnah‘ and the olkeni of Jigh. Towards the end ae

perlod of the Tabi‘tin, the scholars began collecting tha meanings of

the Qur'an and started compiling these in the forin of a' separate field of knowledge called ‘im al-tafsiy, ‘The ‘scholars of each area concen:

passed on through their teachers

from the Companions or the Prophet…

During the period of the Abbasides, scholars ungeftook the com. * pilation of these fafasir and arranged ther in accordance with verses ‘and siirahs of the Qur'an. Most of these works are not available, though

al-Tabari has quoted some of them,

d: The Maturing of the Legal System. . f a "s : This period extends from 350 A.H to the 8th beaikiiey of the Hijrah, and is characterized by. most writers #9 one of stagnation and teglid. Such labels attached to this period amount to gross injustice to the great minds of the Muslim world who lived in-this period, Our entire method of studying Islamic law and more than 95% of the literature

golden period. In fact, the entire

schools is a product of this age. ; . ‘ This was the age of the great systematizers, Jt was through their greatest

efforts that the Islamic legal system reached full rnaturity. The

Scanned with CamScanner Jslamic Jurisprudence _ 52.7 : “ se . 2. ‘ . 18 ' . . ad ___Islamic Jurisprudence’ : 17 sc yitnessed during the ae ea centuries of the Hit —_

gvity © : ced the great minds who are ousehold words, so to say.- did not deal swith. adi ie . . € Jt pre Dis, 3[-dessas, el-Mawardi, al-Shireai, a; al Sera¥hsi, . * ie autonomous The gdis had there oe courts and were more or 2 |

rts ey Juwaynl: al-Ghazali, Ibn_Rushd, al-Kasani, al-Raai, Avcode meany‘a dit ef : se: ate n <edaws acai p)-Marghinata, Sadr al-Shani‘ah, Tbn Qudimah - In this of laws promulgated and enforced by the state. '

eva) OF jaran, h ia shining ecamplootiie out : sense, there had never been cny codification in Islamic law. ; -

New ‘gq and 2 host of others are tne om y g examples o this period, + n early. suggestion by Tbn Mugaffsh to-Abii Ja‘far al-Mansir could. - : ' sites js period a5 one of stagnation is to display ignorance about; not be implemented as-Malik is sald to have advised against itin the , qo tet = reciation of, the true history of Islamic Jaw. . year 148 A.H. when the Ichalifah went there to- te. . !

d2lec of app ibuti f this period would requi if in 167 AH, ‘ ts heparan jer waliegelt ane estimate the contribu ies et f oe ceils ieee ra : . ats he had written the Muwatia’, The obvious reason

1d be pertinent to say f at Bl eccip = 2 im assificahons ' ates to c the desire of.the rulers not to interfere with the part of

11" stions are & contribution of this period, Usill el-figh was truly ‘ e sharfah that dealt with the personal matters of people, in which aden”, as a, discipline during this period. Most of the credit 'given they followed the school of their choice’ This situation continued till I developer eeds to be shared with the jurists of this period. A new the Ottoman times. oe : . | to al-Sha iat fi Ayah,.as a discipline, owes its existence to the jurists The Ottoman Qandn: The first real-attempts at codification were 4 geld of ne he theory of the purposes of Jav. or the magasid al- made'by the Ottoman rulers. These dealt-mainly with the criminal law of tus pees ._ more developéd than the modern thenries chintaese | ‘and were called gandj: ndmohs. The process reached its zenith during | shor‘, ae: duct of this age. The separate discipline of chkam. - une Period of Sulayman ‘Alichain when Turkey dominated Europe in- aad vols, = 3 of the greatest commentaries (injsirs) are a clading the sea rcutes. Jeseph Schacht writing about this period said- ' al Qur’én 23 well senoms that these laws were the “swiftest laws in Europe.” Uriel Heyd’ has contsibution of aed of the doctrines and movements that may made a detailed study of the Ottozaan criminal Jaws of these times ;

fis iso true thas some ‘ao ihe product of thie age, Foe and has‘even. translated a number of the firmans and gantin'ndmahs, \

injiets sore modern minds ia 38 vied aaa this period. The" The Mughal Empire: Awrangzeb ‘Alamgir, 11th century A.H./17th, s

exemple, taglid og a doctrine was ea Abl elHadtth els Ee century CE made some efforts at codification too. He issuéd jirmdns

coxtroversy between the Ahl al-Ra’y and the Ab : relating to.ta‘zir, but his major contribution was in the area of shari‘ah i

Ag & . _ ed on the Zahir, al-Riwayah, He appointed 2 commission headed }

law Bas i ; . . a BH ge Beg : by the Nizam of India. The result was,the Fatawa ‘Alomgiriyah. it is 27 The Sixth Period: The Age of Qaniin and Cod- ; Sous work based on the model of the Hidayah and comprises ‘ . om eg six volumes. : wr ; “This, however, was not a code in the modern sense of the term, as it was not binding upon the subjects. Further, it covers the entire spectrum of Islamic Jaw as expounded by the fugaha’, but it does not

cover the law administered .by the state. ’

tp full bloom: in this period.

ification . xiend from the 14th century CE to the Mth century CE before the advent of colonization. In this period some. atempts were made to codify laws. Two outstanding examples are

povided by the Ottoman state in ‘Turkey and the Mughel empire . aie, ; ; cee. P casail . ludiz, especially the rule ef Awrangzeb Pens ete Minden -2.8 The Seventh Period: Colonization and After — dns ‘ aed ithi mic legal 5. ' ose ee es : . weal piminsetretion ne annes ie ca sphere3. ‘The state i During the age of colonization most Islamic laws were slowly.replaced- ee eee esin general; while . "by Western laws. Oaly the areasof personal Jaw were left intact.

weré adopted by choice. This process was

This period may be said to e

‘as responsible for military, fiscal matters and crim! ‘ 1 the juris : hn aq/s, coramerce and the. In Turkey, European laws 5 , i are insite i igscatien jen pad dealt with by the " slartad in 1880. The shorFpenlies vere, dropped and taking of in: ’ ies. The courts respon! orn «astitutions terest was mace permissible. 2” . tate were called mazalim courts. -Besides these, there were i i of “A civil code based on the shari‘ah was also prepared. This was and the insti Mojaltat al-Ahkam al-‘Adliyah (The Corpus of Juridical ae

“<e the inspector of the markets (@mil al-siq) wt ir the mahte sit, Shrmsenrct he state was called siyasah. a apes Forts, ittar healed +a Ahggad Jawdas eee nahey eros by nate le Pia te ae aa re Med Sara

dant twide area and covered almost every ore+ t M229 9 oP oR 9.0 9

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<<2%_ India, the Britis

nd-a law was passed ju 1772 <p, marriage, and

laws lating to inheritance

. Jied to all cases Felatine beens all parts

saul sen of persona Jaw. Al-Hidayah, Sich ee kart

of sora manuals were raneaed, ar oarer the abolitsdn of

is * ched and resulted

a legislative movement we ee Fone eal Procedt e.Gode {1862), Shariat Act {1937)

1843;-Penal Co FP cee Act (1872), Companies Act (1913),

" glaver: 3

: jodie. Evidence Act (

and a host of other Jaws. . ; : F Secauas icati Islamic laws the judges did not always"

lication.of the shea

the a ; ar Rategant the manuals of Islamic Jaw an

ene ee Anglo-Muhemimadan law. 4 - i: ngio-. . ; ie —_— ha "erpl ibe shah Jaw had been the official law, with some inter- muptions, til] the Ottoman rulers made Henaff lew the official Jaw of the ‘country. In 1874, after independence from ‘Turke Code wes enacted and Islamic law was relegated to personal maatters., ‘A code was also made for the shart ‘ah courts embodying 647 articles. In 1920 the Maliki and Shafi Jaws were reintroduced for certain mat- ters. In 1936, ‘A prepare anew code incorpora code consists of 1149 articles. The

' , judge should have recourse'to the principles, of the Islamic shari‘ah jn the absence of Jegislative provision in any par icular-case,.The code was enforced in 1949. The Egyptian constitution, however, places a

ting some Islamic provisions as well. The

Jimitation on this by admitting only those rules that are definitive,

i.e, those about which there can be only one opinion. , .-

3 The Schools of Islamic Law .

The schools of Islamic Jaw are not sects; they are ‘eputan of in- terprétation, Each school has its own independent set. of principles which cannot be mixed up with thé principles of other schools witht

. out causing inner‘contradictions and analytical inconsistency. The set

of principles adopted by each school is followed by the jurists within the school. It is obvious that the use of one set of ptinciples xia lead different legal opinion on the detived law, For’ example; it fo an

Rene phe Pua ‘of Companion of the Prophet, ‘especially a jurist Companion; sets precedent for the’ later jurists: it has to be followed. The

FA. dersthe; Ottoman:reg oe : terri Patter Wwoeld War ‘ye while-in-tbe ‘Lebano> and = vs Jertare ty S ae iy ze ; ; ; imi ge British itted the application of persona! ee aera tha! provided that the shosi"ah

y the.National Civil -

bd al-Raz2iq Sanhiiri Basha headed.e committee to

‘established principle within the Hanafi schoo] that the Jegal opinion

first-article of the code providedthat

owas born in Kufah in the year 80 A.H. (699 AD) and died . eda

“Torahim 4l-Nakha't, Qady Shurayh, and Hammad iby gyi ts : Sus

. the kingdom. He, thus, had the

ms a. a .

3.1 The Hanalt Schoo] -

Kufah, a city in Iraq, gradually turned into —_ ing. ‘Lhe reason for its’ being so is traced to Prag of Fgh . (R), who/sent “Abd Allah ibn Mes‘td (R) (4 39 tian or and gadi for this area. This learned Companicy 4, ") Situs ber of jurists, who in turn produced students mag 2 gan W, 1

great fame. Among these jurists were Algamah Nive AB

Founder: The founder of the Hanafi School was Aba Haas : ibn Thabit ibn Zitah, possibly of Afghan otigin, Imam Abj ea, A.H. (767 A.D.). He is also called Imam A‘zam cr the G, a began his early education in scholastics (kalam) and pase Inia, 2, interest for jurisprudence under the tutorship of his Sh. Berea g ibn Abi Sulayman (d. 120 A.HL). Shay, Hann He wad a textile merchant by profession dit fs aai .

this: reason hie igh reflects, his Nesetlaal prea et ie Abi HanIfah'was later given the title of the leader fae Ahl al-Ra’y, He is reported to have met some Compan eee foremost amongst them is Anas ibn "Malik, say Jurists of the School: Out of the pupils of Abi Haiish, jurac famous; they were: Abi ‘Yusuf Ya'qib-ibn Ibrahim al-Ansia a 182 A.H.), Ziifar ibn Hudhay! ibn Qays (110-158 A.HL), Mohan ibn al-Hasan ibn Fargad, al-Shaybini (132-189 A.H.), and Hasan in Ziyad al-Lu’li’i. Through these disciples, the fame of the Henafiscud spread far and wide, Abii Yisuf was appointed judge in-Baghdad al later became the Chief Qadi with authority to appoint judges all one oppo: ity to. school of the great Imam: _ e ae * i ” , Barly works: Muhammad ibn al-Hasan al-Shaybani, who must her been 18 years old when’ Abii Hanifah died, takes thé credit for recordhag not only the first books of the Hanafi school, but also those of the ealie Islamic legal system. The books written by him were of tro types: {he ‘ first were called zahir al-riwayah or books of the primery issues, wt

: the second were called‘al-nawadir or unusual.cases: - sinh ‘ola'Anl ol

‘Madinah, a book on-the use of traditions,

In addition to the above, he wrote Kitab ol-Hu 7 and another ook an traditions called al. Athar. His version of Mlik’s Muwatta'is oo sidered highly reliable, Abi Yiisuf ‘also wrote a book on tradition called al-Athar, and his Kitab al-Kharaj is very well know ., The above books form the foundation of Hanafi figheln fachi h of the books of the other’schools are a response to what aaa | . Z 5 bi . . rv

Scanned with CamScanner islamic Jurisprudence $3. wv to , a . 1s, A-Mudawwanch al-Kubré of the Malila schoo compiled ees? ae is 2 response to the rulings given in the above books, by so ails work is also in response to these works, . ach of = The Hanafi school was predominant in Traq during the Ai fafnener ate since it was preferred officially, Tt was also.the official ppside C the Ottoman State and in the Mughal kingdom in India. Its oy nstitute more than one-third of the Muslims of the world wers are in a majority in Pakistan, India, Bangladesh, Turkey, Iraq, Syria, and the newly independent states of

: veents 00 a d its fallo Afghanis Oa af School and Legal Theory: Hanafite legal theoty re. The « ound the use of general principles. ‘The first task for the Hanafr volves af n he is faced with' a new case, is to see whether this casa . jurist SS antsled under a general principle. If the case Is covered can be a a principle, the jurist finds na difficulty in assigning-to it cuegelt OY ( the governing principle. If the vas: does not fall under Jee the jurists would try to acce=n-nodata it under another . ee A painciple thet governs a-case inay itself be a sub-principle as piinciple, or even bs an exemptior from it or a cocollary, ner Hexiteh, however, is reported ta have said: "This knowledge of | - e an opinion; it is the best we have been able to achieve. He wlio ee arrive at a different conclusion js entitled to his opinion es we ee entitled to our own.” Explaining thenttiodes of ijtihad adopted by « ie hesaid: “II do not find my answers in the Book of Allah ur in the iteditions of the Prophet (p.b.u.b,),'T seak the vlows of the Prophet's Companions, from wiose opinion I do not Geviats, But when it comes oo Tbribim, al-Sha'bi, Ibn Sirin, al-Hasan, ‘Ata aiid Said ibn Jubayr, vall, they were persons who resorted to independent interpretation nd J will do likewise.” ‘ Ea i ’ The principles according Abi Hanifah are; proof by the Qur’an nd by the Sunnah, ima‘ and the opinion of a Companion. He does ot mention giyas (analogy) and istihsén (juristic preference) as tliese: ve principles of interpretation rather than true’ sources ‘of Islamic w. Istihsin is the preference of a general principle: over analogy, | Skaybant, however, uses anaiogy and istihsan ‘in his books and at- ibutes it to his teacher as well. _ thes been mentioned by Ibn Khaldiin in the Muqaddimah that 0 Hanifah acted upon ra'y and did not accept the majority of the aditions, He accepted only 17 traditions, says Ibn Khaldin. This } tw is not correct and is based on vicious propaganda against the x / ‘aff School, Anyone who-studies the Jigh of the Hanafi school will Hig that ABO Hanifah accords the Sunnah its proper status, Tike

a en

384 ; - Islamic Jurisprudence 21

even the opinion ofa Companion as binding on him refuse to consider the Stinnah as binding or reject traditions without justification,

Aba Hanifah Bccepted giyas (analogy) end acted upon it like the omer founders of tiie Sunni schools: On’ a closer examination of the Principles relating to yds used by the Hanafi school, it becomes ap- Parent that jts Scope is narrower when compared with the methods

of the other schools, This strictness is overcome by the principle of *

; istihsan, Istihsén js nothing more than the Preference of a stronger: Principle Sver strict analogy. Istihsan is also used by the Maliki school, . but it is rejected by the Shafi'is, :

:3.2 The Malik Schoo] The Malik school emerged as the school of the people of Medina or the people of Hijaz. In its methods it owes its origin to ‘Abd Alizh ibn

“Umar (and to ‘Umar (R) himself according to some), Zayd ibn Thabit,

Ibn ‘Abbas, ‘Mishah, Sa‘id. tbn al-Musayyib and other Companions (may Allah be pleased with them all). , ;

_ Ihe Imam of this Fchool was Malik ibn Anas iba Malik ibn AbT ‘Amir al-Asbahi, Malik was born in Madinah ‘in the year 93 AH. (or 95 or 97). He lived all:-his life in Madinah’ where he died in the

year 179 A-H, (795 CB). He received his early education from,*Abd -

al-Rahmin Harmag and then became a student of Rabi‘sh ibn ‘Abd al- Rahman, known as Rabi'at al-Ra'y. At the age of I7 he started giving

_ lessona In figh and traditiona, He ‘himpelfsays, "I began teaching when

Seventy Shaykhs had approved that T wes qualified to'do so,” He was

‘untiversally acknowledged as a Jurist. AL-ShafiT is teported,"to haye

" said of him: “After the Tabi‘in, -Malik is God's authority amongst

His creatures, .., If traditions carry ‘the Malik's authority hold on to

ans authority of Malik as a traditionist fs undisputed. He studied

” traditions under Nafit, the client of Ibn “Umar, under al-Zubri, Abi al-

Zinad, and Yahya ibn Said al-Angati, Bukhari says that the soundest

. chain of narration is: “Malik from .Nafi‘ from Ibn “Umar,” aad then

“Malik from ‘al-Zuhet from Salim'from his father." ‘This is sufficient proof of the authority that Malik’enjoyed as a traditionist,.

Malik is the author of thé well known book: al-Muwatia’, which is at once a book of traditions and figh. It is said that he wrote this book over a period of 40 yeats, Al-Shafi'T said of this text: “No book on earth, after the Book of Allah, is more accurate than the book of Malik.” (It should be noted that the sound (sahih) compilations Were compiled much later), Al-Muwatta’ Waa transmitted in several °

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"the pupils of Malik inclide Mike ch ibn flanaft schoo] and Mubammad ibn Idris el-Shatt th SnafiT school, Those ‘belonging to'the Maliki school 7; the narrator of olMuwatta’, Asad ibn: al

Layth f 213 AHL), ‘Abd al-alam a. als an (d. 240 A.H.), ‘Abd al-Rahman ibn 2. Ashbab ibn ‘Abd al-‘Aziz al-Qaysi (d. 204 ‘A.HL), ond ‘Abd al-Hakam (d. 214 A.EL)- A Among the later jurists o Aba al-Walid al-Bajy, Ibn Rushd (the i andson, author of Bidayat al-AMfujtahid), Ibn al‘Arably

|-Qasim (d. 191 f.the school, wh

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a chool is al-Mudawwanak ol-Kubra,

i al-Khirasht. se ke att ‘The earliest major work of the 6 H Tbn al-Qasim, who was the student of Malik for 20 years, jssued rulings on cases already decided by the jurists of Iraq (primarily the Hanafis) "when these were presented to him-by Asad ibn al-Furat. The.decisions were rendered. in the light of M alik’s opinion as well as Ibn al-Dasim’s own: ‘The decisions ware recorded by Sahniin. The w and makes very: iriteresting teading- As Sabniin died work must have beet’ compiled a few Pears ‘earlier (say sround 230 AH). Other works are ol-Mukhtasg? by Sidi Khalil. Many commen- tariés have been written on this work.Ibn Rus is well known. It is unique because of its compara js used for instructional purposes in many institutions. . Maliki School and Legal Theory: Malik’s name ‘and method are usually associated-with the Ahl al-Hadith, beca itionist. Malik’s stature 2s a traditionist is acknowledged by all, but’ _ he wasan equally great jurist. This w who on visiting him said: “He truly is a fugih.” When Maliks opinions and those of his school are examine " that the preferred method was analytical based on thé, use of-geueral ¢s. In fact, the methodology of this school is closer to that of | of the traditionists. Both accept:

tive approach, and

the Han istinsan and the opinion of

the principles of maslahah and sadd. al-dhart‘oh, which are

more than the use of general principles, a ‘ “/ Malik did not lay down his principles separately in a compiled form. is students and later jurists of the school, derived these principles from Malik's figh end compiled them. These jurists maintain that ‘the sources of figh according to Malik are: the Qur’an; the Swnnah;-ijma';

nothing

‘a. ie : hé*founder of the . were: Yahya al- Furst’ al-Tamist (4. | }Tanhukt, also jmown as Sahniia fom- : AE),.

ho attained fame were: . d (the grandfather), Ibn Rushd (the * Sidi Khalil, ,

ork ig volaminous . in 240 A-H., the -

hd’s Bidayat al-Mujtohid,”

ause he wes the first tra- - as acknowledged by Abi Hanifah,

din sorne detail, it becomes obvious .

afi schoo! than to any schoo. a Companion. The Maliki school accepts ,

‘Abd ANah ibn - -

him to give legal’ opinions when he was only 15 ye

Miah Of igtihgy

d. Practice of the people of Madinah preferred ov s oe "OVER. gia,

‘9 Maslahah Mursaich. Maslahah mursatah j é vee pba aa isd I by fant

_ as.that interest which has neither been eeprecdly wan PY ti the Lawgiver nor has it been’ rejected. ‘In other bile med by” -principle derived by the jurist after seeking spare! ra : a

. ‘purposes of law.° 3.. Opinions‘of the Companions Malik holds th bite . ! € i . dons of the Compantons constltute a valid risal toon the afham and should be praferred over.giyas, This bee when there js no tradition from the Prophet on the pa “

Siniak (Khabar Wahid). Malik ls iadivich ie hid). M ys down that i narrations should not be contrary to the reackenvat ts ce ple of Medinah. If an individual narration is contradicting see practice then it is not a legally valid proof (hujjah). : b.-Tatihedin. Malik hes upheld the principle -dittian te wisi stihsar plé of .istihsaa . his decisions, The Méllikt juris te (particularly Ibn ase hee : " explained the mréaning of this principle as practisgs by Malik, Thé Maliki school was quite influential in Muslim Spain {Andalus). Its followers can be found today in North Africa, Central and West Africa and Eastern Atabia. Modern jurists place a high value on his doctrine

ibn al‘Abbas ibn ‘Uthman ibn al-ShafitT al-Hashimt al-Matlabt. He Ghasa in the year 150

belonged to the Quraysh tribe and was born in A.H, (767 A.D.) and died in Egypt in the year, 204 ABZ, (819 AK) ; "_. When he was two years .old his father died and his mother took him to Makkah, He memorised the Qur’an at the age of T years. He went to the desert to live with the tribe of Hudhayl where he Jesto! the language and poetry. On coming.back he studied.under the Mult of Makkah, Muslim ibn Khalid al-Zanjy. It is said that al-Zanji allowed ars old, AL-Shai travelled throughout his life from one-place to another. At the ag

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1 é . id post by the Governor of Yemen. As 2 result of Sie we ee subsequent accusation he wes deported from Yemen df jst OG, ghdad in the year 184 A.H. to appear before the gre” cent t Muhammad 2l-Shaybani played an effective role ~

| Fe + said thal : ore Fh Jt 3 and he was released. He stayed with 2l-Sheybant and a dge from him, He refers, in the Kita al-Umm, to tha 3 in took plece. He had earlier been the student of Malik is * ql Mewatta’ under him. ALShafiT left for Makkah in the a 163 AH. eee to Hijaz. In 198 AH. he paid his third visit PF years and Te , ths left for Egypt. It is said thet he wrote two Jd after @ few mon : ie crapyreraiailes ip ker LRisclah, KGtab al-Umm, and Tkh tilaf al--Hodith in Egypt. al then, he must have written all this in the last six years itis ee ch appears to be an‘incredible tack. . of es Iie, L |.Risalah 3a considered to be the first systematic work on Fis boo : al-Umm; however, is considered to be more important. us He oS tue seven iis end has been recorded in a scientific pe book fe" J form by his pupil, al-Habi‘ ibn Sulayman. There has ed an around the real author of this book in recent times pea 2 contr of what some earlier scholars like al-Ghazali and others on be rer + the book-was actually written by al-Buwayti a student eee en rceataad 4h at alles gl-Duwayir idl weltten it Rabi! Aad it Dr; Zald Mabscak- endured ‘hn Sulayman expanded and rearranged i . Dr. iM en th ew jn 1994. This, however, does not undermine the value of the gabe had no parallel in ae works of those days os far os its sition is concerned. ‘ i oe _ Fieve srontzet jurists ‘of the Shafi school are: Ismail ibn Yehya iMuzeni, the author'of al-Mukhtasar, Yiisuf ibn Yohya al-Buwaytt, tuba ibn Sulayman and Ahmad ibn Hanbal. These were his pupils and nlater times the Shafi'i school has produced outstanding personalities ike cl-Shirdzi, al-Juwayni, al-Ghazali, al-Razi, al-Nawawi.and many ithers. 48g - . Thee is, however, a big gap between the works ‘of eh shafit and

he later well known works of the school. In fact, thelgap extends

Ma two or mote centuries. The fully developed schdal-upheld certain- eltires that were not upheld by the founder. Perhaps, the doctrinés ‘ae being refined and tested during this large gap of two and a half tahiries. It is possible ‘that there were a large number. of works, an Gren, but these are not extant: . ee hag School and Legal Theory: The method of interpretation fone! by al-Shaa'i was directed against the use of general principles. oe

. scala Ais = és welabign wae ape the desire FET Fas Pboie rable

mG. both Pita Funanifics. Tl

195 A.H. he camé back to Iraq and stayed ‘there for.

34° — ‘a H Islamic Jurisprudence : 25

was: “Ifthe chain of 2 tradition is complete and sound; it must be fol-

iA . Be at lowed.” This Tule, he insisted, should be followed irrespective of gencral -

ei Accordingly, Tost of his other principles of interpretation eee to be designed against the strengthening af general principles. LShE8 Twas the first jurist to write about the rules of literal con-

struction and then construct his figh.on them. These principles are.

available in his book al-Risalah and are visible in the Kitab al-Umm.

“In this book he also discussed giyds al-ma ‘na, iim’, ond istihsdn..The.

major emphasis, howeyer, was on the Sunnah as a source of Jaw. Ina way, he is the leader of the Abi al-Hadith or those who are inclined towards applying the traditions literally once a sound chain is estab- lished. He laid down conditions for the acceptance of the traditions on the basis of which he ig sometimes:given the title of the helper (ndsir) of the Sufnah. He accepted the four sources of Jaw: the Qur'an.’ the Sunnah, fima' and giyas. Al-Shaf't does not consider the opinion of a Companion as-a valid principle not does he attach weight to the Practice of the people of Madinzh, .

Al-Shafi't attacked the principle of istiAsdn used by the Hanafis as Well as Malikis and condemned it. A closer examination of his argu- ments, however, reveals that he did not identify the exact nature of

. this principle as used by both Hanafis, and Malikis, which is very much

Within the ambit of the texts, and this is acknowledged by some Shafi'T jurists like al-Ghazaly. a

The principle of ijma' is accepted by al'Shali'r, but not exactly in a _

form lald down by the classical definitlon, Al-Shafil.dges nat mention maglahoh mursaloh in his principles. The jurists of his school reject it outright, howeyer, {t is maintained by modern writers that al-ShofA'r uses this-principle and calls it giyas ff al-gawa'id, but this opinion is

not supported. by al-Shafi'Ts works, especially when his methodology

was directed against general principles.

3.4 The Hanbali School : \

" The founder of the school is Abi ‘Abd Allah Ahmad ibn Hanbal ibn

Asad al-Shaybant al-Baghdadi. He was horn in the year 164 A/H. (780 A.D.) in Baghdad and died there in 241 A.H. (855 A.D.). He visited < Syria, Hijaz, Yemen, Kufah and Basrah for purposes of callecting tra- ditions. He was a pupil of al-Shafi'T for some time. He compiled a major work on traditions entitled Afusnad al-Jmam Ahmad, which contains * more than 40,000 traditions. . i a, . ; Among the jurists of this school are Muwaffaq al-Din ibn’ Qudam ah, the author of al-Mughni, Shams al-Din ibn Qudaimah al-Maqdisi, tha

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2 Je eP. : ‘ bali-Sc! FOC g ae tc SS itis He ool is similat to that of BE Shani echool: ee a ined t0- “Jiteralist than the shaft school we fe 7 ie iti -the Hanbalt scho erred. ept mursal traditions, ‘the #2 aie oi ae | principles and on analogy cons me aver fe cabal school derives its literature from the later junsts = | down the principles of their imam. Jb Qayyim ab-Jewsiye!

these principles are five:

y. The rexts (Nusus). The Qur’én and th chains are complete ate to be preferred ov

source whether textual or rational. - of a Companion, These ‘are of two kinds: First, an ‘ opinion of » Companton in which he hes.not been opposed by

others;-this is necepted, Second, vem the opinions over a7 issue are more than one. ‘Yn such a case that which Is closest to the

have laid di

states that : osé traditions whose .

er any, other kind of

g, Opinion

texts is to be accepted. ; ;

4, The Da‘if- and Mursal Traditions. We have said that al- . Shafi'T does not eccept a tradition the chain of which is cut up

or there is a defect,in it; Ahmad ibn Hanbal does, These tradi- |

tions are not to be rejected totally, but are to be used for the . establishing of the ahkdm in order of strength. ‘These traditions

also are preferred by the Imam over giyas.,”

aw'as a last resort, When all the hukm the jurist may, then have

Giyds Qiyas is the source of | above sources fail to reveal a recourse to gigas (analogy)… 7. | :

The Hanbeli school existed for some time in Iran, before that coun- ‘ dad. ‘The school then faced virtual

try becarne Shi‘ah, and also in Bagh extinction before it was rejuvenated by Ibn ‘Taymiyah and his pupil Ibn

Qayyim 2)-Jewziyzh in the seventh and eighth centuries -Jt- came to life again in the 18th century in Saudi Arabia at the hands of Mubammiad. _jbn ‘Abd al-Wabhab. In the time of Iing.‘Abd al-‘Agiz al-Sa‘tid it was declared as the official schoo! of ‘the Kingdom. The followers of this school, sometimes called Wahhabis, are found in central, Sandi Ar abla,

ind in Pakisten and India as well. It is to bé noted thal the majority [ ,

af the neovle in Saudi Arabia are Shafi'ss.

" schools did-not ac

pape: Bxtinct Scho ols There, wore -three, other Sunni schools, besides the four — a above, but they became extinct. These: were the school of al-Awaay' the Zahir school and the school of al-Tabati: Most of the extinct cept analogy as & Source of law, and this could be

the reason for their extinction.

3.5.1 The Aw2a'T School

Aba ‘Amr ‘Abd al-Rahman ibn ‘Amr, known. as al-Awza'l, was of Yeinini origin, bul was born in Ba‘labak (Lebanon) in the year'gs AH. and died in 157 A.H, This makes him a contemporary of Abi Hanifah. His namé ia associated with the Ah] alHadith, who do.not | - accept analogy and opinion‘as & source of law, Al-Awza'l was the , jmam of Syria, just as AbG Henifah was in Kufah. What is known about him.is through Abi Yisuf’s work called Kitab Siyar al-Awzi4, © whigh és found in yolume 7 of al-Shafl ‘"'g Kitad al-Vmm, Some material haw been published in Saud! Arabla, whleh includes some mare work on the opinions of Awza't. His opinjon's are also found in al-Shaybant's

works, ; : Pa . ~The Awz8 school flourished in Syria and later moved ‘to Spain,

“however, with the emergence of thé Shaft school in Syria and the Maliki school in Spain, the echool disappeared. The maingréadon for

its extinction appears to be the non-acceptance of analogy: as @ source of law. - .

3.5.2 The Zahiri School

. This school gets.its name from the word zahir (apparent), which was, .

also a title given to its founder. The name implies a literslist method

. of looking at the apparent meaning of the texts and rejecting analogy:

It may be considered an extension of the method adopted by al-Shafi‘. , Al-Shafi', however, accepted analogy, while this school condemned end, rejected it. It is, perhaps, also for this reason that-the Shafi school survived, but this school did not. . ; : . : Dawid ibn ‘AN-al-Isfahani, better known as ‘Abii Sulayman al-° Zahisi, the founder of the school, was born in Kcufah in the'yeat 200 AH, and ‘died in 270°A.H, At first he was a follower of the Shafit- method, but later switched over to his own method and, founded 8 ' school. He was called al-Zahiri, because’ he followed the literal meat” ings of the Qur'an and the Sunnah. His method was similar té that af al-Shafi’s, but he'differed when he vehemently rejected ana OBY!

al alae

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