ISLAMIC LAW

Some Foundational
Discussions and Debates
 Ḥanafī school -- Abū Ḥanīfah (d. 767)

 Influence in Kūfa, Iraq. Amongst prominent jurists

of the school are Abū Yūsuf (d. 798), Muhammad b.
Ḥasan al-Shaybānī (d. 804). This school gained
prominence in the Abbasid and Ottoman rule. It is
widespread now in Syria, Jordan, Turkey, North
India, Pakistan, Central Asia, and China

 It emphasizes on qiyās, especially by determining

‘illah (ratio legis)

 Istiḥsān (juristic preference: Q. 39.18, 39: 55, 2: 185)

 ijmā‘ (invoking the number of “logical”
arguments and textual sources as the ḥadīth
“my people will never agree upon error”)

 It regards this consensus of its qualified legal

authorities of a given generation as infallible.
In practice, local consensus is also accepted
at times
 Mālikī school
 In Upper Egypt and North Africa

 Relates to Mālik b. Anas (d. 796), who was Median

scholar and compiler of Ḥadīth (al-Muwaṭṭā [the
Trodden Path]). His emphasis was on ‘amal ahl al-
Madīnah (the practice of people of Medina).

 Istiṣlāḥ(public good) is also a principle kept in

consideration in this school particularly for protection
of religion, life, intellect, lineage, and property.
Shāfi‘ī school,
 Relates to Muḥammad b. Idrīs al-Shāfi‘ī (d.820).

 Influence in Lower Egypt, South India, and

Malaya.

 al-Shāfi‘ī studied in Mecca, Median, Iraq, and

Syria. His al-Risālah emphasized understanding
the Qur’an through the Sunnah (precept) of the
Prophet, which Sunnah, in his opinion was to be
found in sound Ḥadīth (narratives related to the
life, statements, and approvals of the Prophet;
often transmitted as akhbār aḥād
 Note “sound” or Ṣaḥīḥis not necessarily
mutawātir: it could refer merely to a high
degree of probability)

 (Singular of akhbār aḥād: Khabr wāḥid).

 al-Shafi‘ī accepted the “ijmā‘” of the entire
Muslim Community in matters related to the
“content” of religion (as the number ritual
sessions in prayer; he termed this as “whole
generation to generation transfer [naql al-
kāfah ‘an al-kāfah]), but privileged ḥadīth
through akhbār aḥād over the ijmā‘ of
scholars in interpretation and ijtihād. This was
a major shift from emphasis on opinion(s) of
jurist(s). However, he did accept qiyās in the
form of pure analogy
Ḥanbalī school
 Found in Saudi Arabia and Qatar, traces its
origins to Aḥmad b. Ḥanbal (d. 855).

 He is well known for his Ḥadīth Collection,

Musnad Aḥmad b. Ḥanbal. His approach was
literalist and Ḥadīth based.

 Even Ḥadīth with weak asnād (chains of

transmitters or narrators) were privileged over
juristic opinions.
 Later Ḥanbalis (as IbnTaymiyya [d. 1327] and
‘Abd al-Wahhāb [d.1792]) also emphasized on
opinions of the Companions of the Prophet.
Shiite Schools
 Begin more formally with the sixth Imām, Ja‘far
al-Ṣādiq (d. 765) in Medina.
 In Shiite principles, apart from the emphasis on
the continuity of Divine guidance through the
ma‘ṣūm (infallible) imāms, another difference
with Sunni theory was in terms of exclusive
acceptability of aḥādīth regarded as
considerable by Shiite authorities (which
aḥādīth, in the opinion of some authorities
could contain Sunni narrators as well – with
some conditions however).
Canonical Shiite Ḥadīth
 Muhammad Kulaynī (d. 940), al-Kāfi fi ‘ilm al-
Dīn (Baghdad). Contains 16,199 aḥadīth
through ahl al-Bayt.
 IbnBābūwayah, Abu Ja'far Muhammad al-
Qummī, also called al-Ṣaddūq (d. 991), Man La
Yaḥḍhurhu al-Faqīh; 5,973 aḥādīth; and
 Muḥammad al-Ṭusī (d. 1067). He taught in
Baghdad. His Ḥadīth compilations are Tahdhīb
al-aḥkām, 12,590 aḥādīth; al-Istibṣār 5,521
aḥādīth.
Any flaws in transmission?
 One of the issues between the Akhbāris and
Uṣūlīs was the issue of whether or not all the
aḥādīth in these four collections are ṣaḥīḥ. For
example, in his Sharḥ, Bahā’ al-Dīn al-‘Āmilī (d.
1621) estimated over one third of the aḥādīth in
Man La Yaḥḍhurhu al-Faqīh as mursal (that is,
with omission in the first link of narrators; in
Shiite Science of Ḥadīth, this kind of narration is
subject to further investigation; in Sunni
science, it is not necessary as all companions of
the Prophet are considered “just” [trustworthy])
Akhbārīs and the Uṣūlīs

 Muḥammad Amīn Astarabādī’s (d. 1626)

criticism of ijtihād and the use of reason as a
basis for juristic authority.
 Ijtihād was thus a point of disagreement as
for the Uṣūlīs, in the absence of the Imām,
ijtihād was indispensable whereas the
Akhbārīs rejected it on the grounds that it led
to probable knowledge.
 The Akhbārīs regarded the akhbār
transmitted through the infallible Islamic
narrative as the exclusive source of
knowledge since it yielded certainty.
 Uṣūlīs regard the mujtahid as the
intermediary between the Imāms and the
layperson (muqallid), who is therefore
supposed to refer to the jurist for his matters
in religion and law. The leading mujtahid of a
given generation is called marja‘ al-taqlīd (the
object of emulation) and is the ultimate
authority in religious matters.
 In Shī‘ī uṣūl al-fiqh, which was said to be
influenced by Mu‘tizalite thought owing to its
emphasis on reason, Sharīf al-Murtaḍā (d.
1024) argued for the authority of aḥādīth but
rejected those he found those contrary to
reason or transmitted by only one narrator .
Ijmā‘ was accepted as consensus of the
“Muslim (Shiite)” community when it
corresponded to the opinion of the infallible
imāms.
 Muḥammad b. Ḥasan al-Ṭusī (d.1067), also
known as Shaykh al-Ṭā’ifah (Shaykh of the
Community) accepted traditions transmitted
by only one narrator, if Shiite.
 ‘Allāma Āyat Allāh al-Ḥilli (d. 1325) considered
ijtihād as the prerogative of the ‘ulamā, but
regarded mujtahids as fallible.

 For further details, see HosseinModarresi, An

Introduction to Shī‘ī Law: A Bibliographical Study (London:
Ithaca Press, 1984)
 Case Study:
Blasphemy Law in
Pakistan