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Commentaries On Islam

Islamic Schools Of Legal Thought

A school of law in Islam is a madhhab (pl. madhāhib). The Arabic word madhhab stands for a path or way (ṭ�arīqah). In Sunnī Islam, there are four main schools of law:

1. Hanafī;2. Mālikī;3. Shāfiʿī; and,4. Ḥ� anbalī.

In Shīʿa Islam, there are three main schools:

1. Zaydī;2. Ismāʿīlī; and,3. Imāmi.

Ibādī Muslims identify as neither Sunnī nor Shīʿa, and thus claim a school of their own. Each madhhab is characterized by different methods of interpreting laws and norms from the Sharīʿa. Though it often refers to law in a general sense, the word Sharīʿa literally means “a path to water,” and thus symbolizes Allah’s revealed norms, values, and rules as found in the Qurʾān and sunnah, or the Prophet Muḥ�ammad’s statements, actions, and tacit approvals. In Arabic the earliest word for the process of interpreting Sharīʿa from the Qurʾān

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and sunnah was fiqh. Fiqh literally means to discern and understand legal norms and rules, and this intellectual effort to find norms is also called ijtihād. In modern parlance, fiqh has come to mean a body of jurisprudence contained within a particular law school. It is important to distinguish between Sharīʿa and fiqh, especially because they are so often conflated in English under Medinan legists in the Hejaz claimed closer memory of the Prophet’s sunnah, and claimed to interpret the law with less corruption from innovations. Syrian legists were influenced by Syrian and Umayyad government.

Although law schools first emerged according to regional differences, each was also associated with a particular scholar. The largest madhhab in Sunnī Islam, the Ḥ� anafī school, bears the name of Abū Ḥ� anīfa (d. 767) of Kufa, in present-day Iraq. The founding works of Ḥ� anafī law are attributed to Abū Ḥ� anīfa’s students Abū Yūsuf (d. 798) and especially al-Shaybānī (d. 8058). Abū Ḥ� anīfa is generally regarded as the first legal scholar to institute analogy as a method for discerning legal norms and statutes when the Qurʾān and ḥ�adīth provided no definitive guidance. Ḥ� anafī thought is also distinct for the primacy it places on consensus. Ḥ� anafī scholars hold that the consensus of the ʿulamāʾ on a point of law constitutes evidence of the Will of Allah. In addition, Ḥ� anafī scholars accept local customs and norms, ʿurf, as a secondary source of law. Followers of this school range from the Levant, Central Asia, Afghanistan, Pakistan, India, Bangladesh, to parts of Egypt, Iraq, Turkey, the Balkans, and most of Russia.

The Mālikī school bears the name of Mālik ibn Anas (d. 795) of Medina, in present-day Saudi Arabia. The founding work of this school is Mālik’s al-Muwatta, or The Well-Trodden Path. The Mālikīs differed from the Ḥ� anafīs in that they considered ijmāʿ to mean consensus of the Medinan community. The Mālikīs also placed primacy on the ḥ�adīth, and Mālik’s al-Muwatta is the oldest surviving large collection of Prophetic traditions. When interpreting these ḥ�adīth, Mālikī scholars

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also draw upon istiṣ�lāh, or public interest, when discerning laws for the community. The Mālikī school is followed mostly by Muslims in North and West Africa, but small concentrations can also be found in the United Arab Emirates and Kuwait, parts of Saudi Arabia, and parts of Egypt.

The Shāfiʿī school is named after Muhammad b. Idris al-Shāfiʿī (d. 820). From an early age al-Shāfiʿī was a precocious student of law and theology, and he studied in Medina with Imām Mālik. The founding work of this school is Shāfiʿī’s al-Risālah, The Message or The Epistle [of legal theory]. In discerning laws and norms, Shāfiʿī placed more emphasis on the Qurʾān and the sunnah than his predecessors Abū Ḥ� anafī and Imām Mālik. Al-Shāfʿī’s legacy is often depicted as a combination of Ḥ� anafī rationalist tendencies with Mālikī traditionalist tendencies. Al-Shāfʿī also went to great lengths to verify the ḥ�adīth. When the Qurʾān or ḥ�adīth are ambiguous or lacking in direction on a matter, al-Shāfiʿī looked for records of consensus of the Prophet’s Companions, followed by personal opinions of the Companions (ijtihād), and only after this would he resort to analogy. The Shāfiʿī school is followed by Muslims in parts of Saudi Arabia, in Jordan, Palestine, Yemen, Somalia, parts of Egypt, Indonesia, Malaysia, Thailand, Brunei, the Philippines, Singapore, and parts of India.

The Ḥ� anbalī school is named after Ahmad b. Hanbal (d. 855). Ibn Ḥ� anbal studied with Shāfiʿī, and, like his teacher, placed great emphasis on the Qurʾān and carefully chosen ḥ�adīth. In discerning laws and norms, Ibn Ḥ� anbal introduced the concept of preferring “a weak “ḥ�adīth over a strong analogy.” Unlike the other three Sunnī schools, Ḥ� anbalīs do not derive laws and norms from independent reasoning of individual jurists or customs of the community. The modern political theology known as Wahhabism, which provides the foundation for the Kingdom of Saudi Arabia, draws upon Ḥ� anbalī legal traditions developed in the medieval period by Ibn Taymīyah (d. 1328) and his student, Ibn Qayyim al-Jawzīyah (d. 1350). Wahhabi Muslims disregard most bodies

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of jurisprudence in the law schools, instead favoring a strict interpretation of the Qurʾān and ḥ�adīth. The Ḥ� anbalī school is the smallest of the Sunnī schools, followed primarily in Saudi Arabia and Qatar.

Shīʿa Islam developed after the first civil war in Islam, and Shīʿa Muslims argue that only persons from the Prophet’s family can be considered rightful leaders of the Muslim community. There are many variants of Shīʿa Islam, each with a different conception of the Imāmate. The largest branch is known as the Imāmi, who believe that Allah ordained twelve leaders, or Imāms. They also believe that the final Imām, Muḥ�ammad al-Mahdī, is in occultation but will eventually reappear as the Mahdī, or guided one. The Imāmi consider these Imāms to be the rightful successors to the Prophet Muḥ�ammad, and believe that only they can truly interpret norms and laws from the Qurʾān and sunnah. Followers of this school can be found mostly in Iran, where it is the state religion, and in Azerbaijan, Iraq, Bahrain, and Lebanon.

Ismāʿīli Shīʿa disagree with the Imāmi on the Imām’s line of succession after al-Ḥ� usayn’s great-grandson Jaʿfar ibn Muḥ�ammad, also called Jaʿfar al-Ṣ�ādiq (d. 765). When Jaʿfar died, some Shīʿa chose to follow his son, Ismāʿīl, as their leader, from whom they derive their name. The Ismāʿīlis are notable for having established their own polity, known as the Fāṭ�imid Dynasty, which ruled primarily in North Africa from 909 to 1171, but also spread to parts of Egypt and the Levant. The Ismāʿīlis are also sometimes referred to as the bāṭ�inīyah, for their emphasis on the bāṭ�in, or inner, meaning of sacred texts and traditions. Accordingly, they dismiss many Sunnī ḥ�adīth, instead favoring the guidance of their Imāms. The largest Ismāʿīlī communities have historically been in Pakistan, Afghanistan, and India, but today Ismāʿīlī Muslims can be found living in Bangladesh, Syria, Iran, Central Asia, East Africa, Yemen, Lebanon, and even South Africa.

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The Zaydī Shīʿa form their own branch based on disagreements over the line of succession in the Imāmate. The Zaydī school was the first to develop as a coherent branch within Shīʿism, and they draw their name from Zayd ibn ʿAlī (d. 740), a grandson of the Prophet Muḥ�ammad. Zaydī Muslims are unique for believing that the succession of Imāms was not to be hereditary. Rather, the Imām would have to be a descendent of either Ḥ� asan or Ḥ� usayn (the Prophet’s grandsons), but would still need to earn the title of Imām based on scholarly learning, charisma, and military conquest. The Zaydī believe Zayd ibn ʿAlī to be the fifth Imām, contrary to other Shīʿa, who believe the fifth Imām was Muḥ�ammad al-Baqīr. In their legal thinking, the Zaydī refute the ḥ�adīth-centered approach of the Sunnī madhhabs, instead relying upon the discernment of Shīʿa scholars. Today most Zaydi Muslims live in Yemen, but, as with all Muslims, can be found in other areas throughout the world, including the United States.

The Ibāḍ� ī consider themselves a distinct theological branch of Islam with their own school of thought. Their origins trace back to the same time period as the Khawārij, an early Muslim sect that called for insurrection against the Caliph ʿAlī and the early Umayyad caliphs. From their beginnings, the Ibāḍ� ī held unique legal and theological positions on questions of justice, leadership, and sovereignty. Under the political leadership of ʿAbdallah b. Ibāḍ� (d. 708), from whom they draw their name, and the spiritual guidance of Jābir b. Zayd, who became the first Ibāḍ� ī Imām, the Ibāḍ� ī developed a political theology based on the idea that any Muslim deemed morally pure could be elected Imām, regardless of his race, tribe, or lineage. The Ibāḍ� ī also emphasize the community’s right to depose a ruler if deemed necessary. In their legal thinking, the Ibāḍ� ī emphasize the Qurʾān foremost, and place less emphasis on the ḥ�adīth than either the Sunnī or the Shīʿa. Today the Ibādī are found most prominently in Oman, where it is the official religion, but there are also Ibāḍ� ī communities found throughout North Africa.

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The law schools remain an important part of Muslim tradition. In the modern era European colonialism challenged this tradition by introducing non-indigenous knowledge traditions and the worldview of modernity. Questions regarding how best to apply the classical Islamic tradition of fiqh, and the place of the law schools in public and private life, have been at the center of Muslim debates induced by the spread of modernity. An important component of these debates has been the issue of bioethics. New scientific discoveries and philosophical discourses in the realm of bioethics have challenged Muslim jurists, theologians, and intellectuals throughout the various madhāhib to creatively rethink tradition and contemporary legal thought.

Bioethical-legal debates are rooted in the moral overtones of the Qurʾān. The Qurʾān repeatedly reminds Muslims of their collective moral duty to bring about what is right and forbid what is wrong, sometimes referred to as ḥ� isbah (3:104, 110, 114; 9:112; 22:41). This injunction complements the revelation that the Qurʾān is a source of guidance (ḥ�udā) for moral excellence (2:2; 17:9). The Qurʾān also confirms for Muslims that the ultimate goal of the Prophet Muḥ�ammad’s mission was to fulfill and actualize the value of mercy among mankind (21:107). Adding to this moral milieu is the concept of tawakkul, or complete trust in Allah. The emphasis on ethics and morality has, throughout history, been a guiding principle in how Muslims interpret fiqh and Sharīʿa, including in contemporary debates on bioethics.

Thus, the basic question the ʿulamāʾ wrestle with when debating bioethics is how to reconcile “human fiqh-based legal rules” with the “divine moral vision” of the Sharīʿa. This is a contemporary debate that mirrors an historical trend in Muslim legal thought of balancing between the concepts of ḥ� iyal, istiḥ�sān, and maṣ�laḥ�ah. Ḥ� iyal refers to legal devices meant to ensure formal compliance with the letter of the law, even at the expense of its “ethical spirit.” Istiḥ�sān refers to equity or juristic preference, and maṣ�laḥ�ah refers to utility for the

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common good. Istiḥ�sān developed in the Ḥ� anafī school as a counterweight to qiyās, or analogical reasoning. Jurists drew upon istiḥ�sān to make certain decisions when resorting to analogical reasoning was perceived as clashing with a higher moral objective of the law. Similarly, as the Muslim community expanded and percolated with new norms and ideas from societies it came in contact with, maṣ�laḥ�ah became increasingly useful when jurists sought to justify social benefits or needs not explicitly sanctioned in the Sharīʿa. Maṣ�laḥ�ah, taken more broadly as the idea that the law should not only perpetuate ethical norms, but should also serve the common good, was an important component in framing a new development in Muslim legal thought, maqāṣ�id al-Sharīʿa, or the ultimate goals of the Sharīʿa. It is generally agreed that there are five ultimate goals (maqāṣ�id) of the Sharīʿa, which all human-derived laws (aḥ�kām, s. hukm, or fiqh more broadly) should support: the preservation of:

1. Life;2. Religion;3. Reason;4. Wealth; and,5. lineage.

Each of these concepts form an important part of Muslim juridical traditions. The discourse surrounding them, spurred by debates in bioethics, reflect broader debates in contemporary Islam on the nature of authority. At the center of Muslim debates on bioethics is determining how to reinterpret these concepts and the process of discerning laws (fiqh) in the light of contemporary understandings of science and medicine, as well as secular ethical paradigms. Many contemporary scholars argue that a moral-ethical vocabulary, informed by the fields of social and natural sciences, should be the primary point of departure in legal deliberations, including bioethics. The primary sticking point for many members of the ʿulamāʾ is reconciling aspects of the tradition with these new forms of knowledge, when

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contemporary scientific practices such as gene splicing, heart transplants, or human cloning would have been unthinkable to the persons who framed the tradition being drawn upon. Thus, as Ayman Shabana has posited, perhaps the major questions confronting Muslims today in the realm of bioethics are the role of traditional authority and methods of discerning laws and norms in the articulation of answers to bioethical challenges, and the extent to which Muslim bioethical deliberations should be informed by the perspectives of other stakeholders in the interdisciplinary field of bioethics.

Answers to these questions fall along a spectrum of opinions. Tariq Ramadan, for instance, has argued that there should be a “shift in the center of gravity of authority” away from a strictly madhhab-based approach to bioethics, toward an approach providing scientists authority within Islamic bioethical discourses. Similarly, Ebrahim Moosa calls for “innovation” in Muslim ethics and the way Muslims conceptualize their tradition, to emphasize more the current social contexts in which Muslims find themselves. Legal opinions (fatāwā, s. fatwā) from the ʿulamāʾ in countries such as Saudi Arabia, Egypt, Kuwait, Iraq, and Iran have generally demonstrated consensus on the permissibility of many bio-technical procedures such as organ transplantation. The ʿulamāʾ in India or Pakistan, however, have been far more resistant to such procedures, often taking a more circumspect position on bioethical deliberations.

Many of the most critical bioethical questions and deliberations remain unresolved in Muslim legal thought, and there are significant disagreements on bioethical issues even within particular law schools. Today some of the most influential bodies of Islamic bioethical deliberation are the Organization of Islamic Conferences’ Islamic Fiqh Academy (OIC-IFA), the Muslim World League’s Islamic Research Council (MWL-IRC), and the Islamic Organization of Medical Sciences (IOMS). These organizations are transnational, and often bring together scientists, medical doctors, and traditionally trained Muslim

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jurists from across the different schools of law. Since no particular body speaks for either Sunnī Islam or Shīʿa Islam, and no one categorically speaks for any one law school, there remains a multiplicity of opinions on bioethics in Islam. Because of their inclusive nature, however, the opinions of the OIC-IFA, the MWL-IRC, and the IOMS carry significant weight, and are recognized as the forefront of Muslim efforts to address ethico-legal challenges brought forth by modern technological advances.

Muslim legal responses to the challenge of bioethics highlight a broader epistemological challenge in contemporary Islam. The role of the law schools in the lives of contemporary Muslims, and the influence of these schools in shaping the norms and values by which contemporary Muslims live their lives, is at the center of this challenge. For nearly a century there has been a robust debate seeking to encourage ijtihād, original thinking in matters of law and norms, a move welcomed by reformers but resisted by ultra-orthodox traditionalists. Some Muslim intellectuals, as part of what has been labeled the “Qurʾān only movement,” find little use for the law schools in contemporary Muslim life, and advocate for discerning laws and norms from the Qurʾān instead of bodies of classical jurisprudence. Another variant of this approach can be found among some Salafīs, who argue that the law schools and the jurisprudence contained within them are the work of man, rather than Allah, and thus not adequate for deriving norms and values. However, many contemporary jurists, such as Yūsuf al-Qaraḍ�āwī continue to draw upon the sources and methods of this classical tradition for discerning laws and norms today. Some critical-progressive reformers, such as Fazlur Rahman, Khaled Abou El Fadl, and Ebrahim Moosa, among others, argue that the collection of fiqh and the sources and methods of the law schools are an important source and archive of Muslim thinking in the past. However, this tradition requires critical scrutiny through an ethical lens that puts

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the tradition in conversation with other forms of knowledge, such as science and philosophy, and the Muslim experience in the present.

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