Schools of Muslim Law There are two main schools of Muslim Law (i) the Sunni, and (ii) the Shia Both sects are again divided into a number of schools, the majority of the Muslims are Sunni and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise. The division between the Sunnis and the Shia originated in the dispute concerning the question of Imamat, or the spiritual leadership of Islam, which came up for the decision and settlement immediately on the death of the Prophet. The Shia advocated that the office should go by right of appointment and succession, and maintained that the Imamat Imamat was to be confined to the Prophet’s family or his nominees. The Sunni’s on the other hand, upheld the principle of own election by the Jammat (or the universality of the people), and ultimately chose out their Caliph (or Imam) by means of votes. This dispute gives a characteristic complexion to the judicial doctrine of the two schools. The Shias repudiate the authority of Jammat while Sunnis advocate it. Thus, the difference between the two lies in political events, rather in law or jurisprudence. The Sunnis further splitted into several sub sects in themselves, each sect representing a distinct school of Sunni law. There was a similar split also among the Shias.
Sunni Schools (1) Hanafi school or Kufa school (2) Maliki school or Medina school (3) Shafi school (4) Hanbali school
Hanafi School: This school is regarded as the most prominent among the four schools of Sunni law. Hanafi School is named after his founder Abu Hanifa (born in the way of Kaba, 699-767 699-767 A.D.). Abu Hanifa’s main contribution was that instead of accepting each and every tradition as law, he tried to find out the law in the texts of Quran itself through analogical deduction. In this
manner he preferred scientifically concluded private judgements based on Quran over a blind reliance on the traditions. According to him the law must be formulated in accordance with the changing needs of the society. In the absence of law in Quran it may also be obtained by the unanimous decision of Jurists. He is therefore, rightly called the ‘upholder of private judgement’ and the founder of Muslim jurisprudence. It is one of the salient features of this school that out of a large number of traditions, the Hanafi School recognises only those traditions which have passed through severe test regarding their originality. Those traditions which are not authentic are not to be accepted as law. Abu Hanifa is said to have relied upon eighteen traditions only. On the other hand Qiyas and Ijma as sources of law have been given prominence under this school. The doctrines of this school being practical and most suitable to the changing conditions of the society have always been favoured by Caliphs and the emperors. Iraq was the home of this school. The doctrines of this school spread not only in Iraq but also in Afghanistan, Syria, Turkey, Coastal Arabia, South Arabia, East Africa, Lower Egypt, Central Asia and South East Asia.
Maliki School: This school was established by Imam Malik-ibn-Anas (713-795 A.D.) who was born at Medina. Unlike Hanafis this school emphasises the importance of traditions as a ‘source of law’. According to the Maliki School, as far as possible the new rules should be obtained exclusively from the traditions. If it is not possible then only Qiyas and Ijma may be taken into consideration. But this school recognised Ijma of only such jurists who lived in Medina. Some of the points which make this school distinguished from others are as under: 1. Imam Malik placed importance to traditions of Prophet in interpreting the text and law but was not a very rigid traditionalist. Apart from traditions he also allowed other sources of propounding his doctrine. He followed the traditions and usages of the Prophet only. 2. When there was a conflict of traditions, then, he relied on the Ijma of Mujtahids.
3. Malik called Abu Hanifa’s school as Ahlal Rai (people of opinion) on the basis of using Qiyas. He also upheld the exercise of Qiyas on the failure of other sources. 4. He recognised the principle of Muslahat (public welfare) which was corresponding to Abu Hanifa’s Istihasan. Malik has written an exhaustive book namely, Kitab-al-Muwatta which is an authority on the Maliki doctrine. Another book, ‘al-Mukhtasar’ of Khalil-ibnIshak contains the teachings of Imam Malik. The Risala of Ibn-Abi-Zayd is also an authority on this school. The principles of this school spread not only in Medina, but also in North Africa, Central and West Africa, Egypt, Spain, Moracco and the Eastern Arabian Coast.
Shafei School: This school was established by Imam Mohammad Ibn-IdrisAsh-Shafei (767-820 A.D.) who was an eminent scholar of Islamic jurisprudence. Imam Shafi was born in Palestine. He was related to the Prophet. He developed his doctrine at Baghdad and Cairo. Ash Shafei also relied upon the traditions of the Prophet. He examined the traditions in the light of legal reasoning and logic in order to get a very balanced and systematic rule of law. Throughout his life he endeavoured to systematize the traditions. It was Ash Shafei who for the first time incorporated usual or principles of law in his book Kitab-ul-Umm. Some important features of his school are as follows: 1. Imam Shafi relied on the traditions more than Hanafis but also studied them more critically than Malik. He devised ways to compromise between contradictory traditions. 2. He based his analogy on the Quran, the Sunna, the Ijma and the Qiyas. 3. He adopted a midway between Imam Abu Hanafi and Imam Malik in using traditions and analogy. He made more use of analogy than Imam Malik. 4. He gave wide scope of Ijma than Imam Malik. 5. He was the creator of Classical theory of Islamic Jurisprudence. 6. He was also the founder of science of Usul.
The doctrine of this school spread to Lower Egypt, East Africa, South Arabia, Iraq, Persia, Indonesia, and Malaysia.
Hanabali School: This school was established by Imam Abu Abdullah AhmedIbn-Hanbal (780-855 A.D.). Imam Hanbal was born at Bagdad. He studies under several scholars of eminence, including Ash Shafei. His peculiar feature was that he rigidly adhered to the traditions of the Prophet. It is, therefore, said that Hanbal was traditionist rather than a jurist. He relied so much upon the traditions that other sources of law namely Ijma and Qiyas were neglected by him. He recognised Ijma only of companion of the Prophet. Musnad-ul-ImamHanbal, is an important book on Hanbali law. It is the collection of about 50 thousand traditions by Ibn Hanbal. At present very few Muslims are the followers of this school. Generally the Hanbalis are in Saudi Arabia and Qatar. Some of the distinguished features of this school are: 1. Imam Hanbal was more of a traditionalist than a jurist, but his interpretation of traditions was very liberal which did not satisfy the orthodox and fanatics. 2. He did not give importance to the Ijma and Qiyas, but relied solely on the traditions of the Prophet. 3. As a traditionalist, he perfected the doctrine of Usul. 4. He considered Ijma as confined to the Companions. 5. He permitted a very narrow scope to the doctrine of analogy. The followers of this school are in Saudi Arabia and Qatar.
Shia School (i) Ithna Asharia or Twelvers (ii) Ismaili School (a) Khojas (Eastern Ismailis); (b) Bohras (Western Ismailis) (iii)
Zyadias School or Seveners
It was the dispute over leadership of the Shia community in various stages of its development which causes the formation of the three schools:
The important features of the Shia Schools are following: 1. The Shias accepts only those traditions which emanate from the household of the Prophet, particularly of Ali. 2. They do not accept Qiyas (analogical deductions) 3. They affirm that Imam is the final interpreter of law. 4. They affirmed that the Ijma could be valid only when it was impossible to consult the Imam. 5. They do not recognise the principle of equity (Istihasan), public welfare (Muslahat) public policy and analogy. There is no important difference between these schools in so far as the law is concerned. (i) The Zyadis School: The Zaydis School is the first school of Shia law. The founder of this school was Zyad, one of the sons of the fourth Imam. The Zyadis were the first to defect from the general body of Shia Muslims. One of the peculiar features of this school is that its doctrines incorporated some of the Sunni principles as well. The followers of this school are not found in India, they are mostly in Yemen and South Arabia. Imam Zyadi’s famous work is ‘Majmu-ul-Diqh’. (ii) The Ismailia School: Upon the death of Jafar Sadiq, the sixth Imam in 765 A.D. there took place the second split in the Shia community. He had two sons Ismail and Musa Kazim. Here again, one group recognised Ismail as the seventh Imam but to the majority of them the younger son Musa Kazim was the seventh Imam. Followers of Ismail were called Ismailias or the seveners because according to them there had been only seven Imams the seventh being Ismail. In India, they consist of the two main groups: (a) Khojas (b) Bohras. The Khojas are Eastern Ismailis and the followers of Aga Khan, the 49
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Imam whereas the Bohras are Western Ismailis. The term ‘Bohra’ denotes ‘merchant’. They include Hindu Bohras, Sunni Bohras and other Bohras. The leading work of this school is Daaimul-Islam.
(iii) The Ithna Asharia School: The Arabic term ‘Ithna Ashari’ denotes twelvers. This is the third and most prominent among other schools of Shia law. This school has been followed by the majority of the Shia muslims in the world. The followers of this school believe in starting from Ali there has been twelve Imams who possessed spiritual powers. Everything that comes from the Imam is taken to be a law. This school is further divided into subsects: (a) the Akhbari and (b) the Usuli. The Akhbari are orthodox and rigid traditionalists. They are guided by authoritative expositions of laws laid down by their sages or mujtahids. They accept only certain resolutions of former scholars. On the other hand, the Usulis are guided by the traditions and also by their private judgements as equity in absence of Imams only. They allowed human reason in interpreting the Quran, where Imams are absent, so in presence as Imams, equity, public policy and Qiyas have no place in interpretation. The leading work of the Ithna Asharia school is Sharai-ul-Islam. The Ithna-Ashari spread to Iran, Iraq, Syria, Lebanon, Persia, Pakistan and India. In India, this sect prevails in number of princely families of Lucknow. Next of Hanafis, Ithna-Ashari sect has the largest number of followers.
Difference between the Sunnis and Shias 1. Sunnis do not have formal clergy, just scholars and jurists, who may offer non-binding opinions. Shias believe that their supreme Imam is a fully spiritual guide, inheriting some of Mohammad’s inspiration (light). Their Imams are believed to be 02inerrant interpreters of law and tradition. 2. On a practical daily level, Shias have a different call to prayer, they perform wudu and salat differently including placing the forehead onto a piece of hardened clay from Karbala, not directly onto the prayer mat when prostrating. They also tend to combine prayers, sometimes worshipping three times per day instead of five. 3. Law of Marriage: (1) Among the Shias temporary marriage (Muta) is lawful but it is unlawful among the Sunnis. (2) According to the Shias only the father and grandfather are guardians for marriage, others are regarded as Fazuli or unauthorised persons and, consequently, marriages contracted by the latter have no legal
effect, unless ratified by the party concerned on attaining puberty. The Sunnis recognise a long list of other guardians for marriage besides the father and the grandfather who can act as Wali-ul-Nikah, they being father, father’s father how highsoever, brother, other paternal relations, mother, paternal uncle, etc. (3) The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition. The Shia law requires the presence of two witnesses at the time of dissolution of marriage, but under the Sunni law, presence of witnesses is not necessary at the time of divorce. (4) As regards consummation of marriage, the Sunni law presumes consummation if there has been a valid retirement of the husband and wife into the nuptial chamber under circumstances which leave no doubt as to sexual intercourse (Khilwat-us-Shiha). But this doctrine of valid retirement is not recognised in Shia law. Under Shia law consummation is presumed by actual intercourse only. 4. Dower: Ten Dirhams is the minimum amount of dower, under Sunni law, whereas under Shia law there is no minimum limit fixed. But under the Shia law ‘proper’ dower should not exceed 500 Dirhams. Under the Sunni law no upper limit is laid in any case. 5. Divorce (Talaq): (i) Talaq under Sunni law may be affected orally or by a written document. Under the Shia law a Talaq must be pronounced orally in the presence of two witnesses and a talaq communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally. (ii) The pronouncement of Talaq under the Shia Law must be strictly in accordance with the Sunnat. So Talaq-ul-Biddat is not recognised under it, whereas Sunni law recognises it. (iii) Under Sunni law, if the words of divorce used by the husband are ‘express’ the divorce is valid even if it was pronounced under compulsion or in a state of voluntary intoxication whereas the Shia law does not recognise divorce pronounced under such circumstances. 6. Maternity: Maternity under Sunni law is fixed in the woman who gave birth to the child whether from the adulterous intercourse or of a valid contract of marriage. The Shia law, on the other hand, distinguishes
between child of fornication and child whose mother was validly married before the conception but her husband disavowed its parentage. In the case of latter, maternity is established in the woman while the former is deemed to have no mother at all. 7. Guardianship: The mother under Sunni law is entitled to the custody of a boy until he has completed the age of seven and girl until she has attained the age of puberty. Under the Shia law, the mother is entitled to the custody of a boy until he attains the age of two years and a girl until she attains the age of seven years. In default of her, it belongs to the father and in default of him to the grandfather. 8. Maintenance: Under the Sunni law the liability to maintain the father rests on his children. The sons are liable even if the father is earning. But under the Shia law it is not obligatory to maintain if the father is in a position to earn. 9. Gift: A gift of undivided share (mushaa) in a property which is capable of division is irregular under Sunni law, unless some special conditions are satisfied. Under Shia law a gift of an undivided share is valid, though it is a share in a property capable of partition. Similarly, Shia law recognises a gift of a property to two or more donees as valid, though no division is made either at the time of gift or subsequently. 10. Waqf : (a) A waqf inter vivos is completed under Sunni law by a mere declaration of endowment by the owner, whereas under Shia law a Waaqf inter vivos cannot be created by a declaration. There must also be delivery of possession. (b) Under Sunni law the settlor (i) May provide for his maintenance out of the income of the waqf property (ii) May reserve the whole income for himself, for his life, or (iii) May provide for the payment of his own debts out of the income of the Waqf property. Under the Shia law the settlor cannot reserve for himself a life-interest in the income of the Waqf property or provide for the payment of his personal debts out of the income of the Waqf property.
