#14038 - The Sources J.Schacht And Fyzee - Islamic Law

The sources of Islamic Law – Joseph Schacht and FYZEE

Joesph Schact – An introduction to Islamic law

• As a result of development, the classical theory teaches that Islamic law is based on four principles or ‘roots’: The Quran, the Sunnah of the prophet which is incorporated in the recognised traditions, the consensus (ijma) of the scholars of the orthodox community, and the method of reasoning by analogy (qiyas).

• Shafi had called Quran and the Sunnah the two principles and considered ijma and qiyas subordinate to them, Tabari recognises three usul: Quran, Sunnah as expressed in traditions from the prophet and ijma, which for him is absolutely decisive; beside these he places qiyas.

• The later Hanbalis too, whilst treating qiyas as a recognised principle, avoid putting it formally on the same level as the other usul, although istihsan and istislah are admitted to the rank of controversial principles.

• The final admission of qiyas to the ‘classical’ group of four usul is the result of a compromise, on the lines envisaged by shafii, between the old, unrestricted use of ra’y and the rejection of all human reasoning in religious law.

• Malik and other early authorities of the maliki school, too, are known to have exercised istihsan in a number of cases; the maliki school, however, prefers the method of istislah, ‘having regard for the public interest (maslaha), a consideration which differs only in name and not in kind from the reasoning of the hanafis to which essentially the same qualification applies. The shafi’s and the hanbali’s too use istislah.

• The exact definition of ijma has always remained controversial. The Maliki’s recognise, beside the general consensus of the scholars, the consensus of the ancient scholars of Medina, the town of the prophet and, according to them, and the true home of his Sunnah.

• The concept of judicial practice (amal) had been prominent in theory of the ancient school of Medina, and the practice of Medina continued to play a minor part in the legal theory of the Maliki School.

• At one point, the maliki doctrine in Morocco upheld the principle that judicial practice prevails over the best attested opinion and it allowed a number of institutions rejected by strict Maliki doctrine. This western maliki amal is not customary law; it is an alternative doctrine valid as long as it is felt advisable to bring custom within the orbit of the shariah, and it mirrors, on a different plane, is predecessor, the amal of Medina.

• Nevertheless, it is true that Islamic law including the Maliki School, ignores custom as an official source of Islamic law. Custom also serves occasionally as the basis of istihsan or istislah.

• As a point of historical fact, custom contributed a great deal to the formation of Islamic law, but the classical theory of Islamic law was concerned not with its historical development but with the systematic foundation of the law, and the consensus of the scholars denied conscious recognition to custom.

• About the same time that the movement of the traditionists gave rise to the Hanbali School, Dawud ibn Khalaf founded the Zahiri School of law, the only school which owed its existence to and took its name from a principle of legal theory. It was their principle to rely exclusively on the literal meaning of the Quran and the traditions from the prophet and to reject as contrary to religion not only the free exercise of personal opinion which had been customary before shafi but even the use of analogical and systematic reasoning which shafii had retained. For instance, the Quran forbids interest and many traditions relate that the prophet forbade an excess in quantity and a delay in delivery in the sale of gold, silver, wheat barley and dates. The other schools extended this prohibition by analogy beyond the five commodities mentioned - the zaharis however refused to extend the ruling to commodities other than those mentioned in traditions.

• Ibn Tumart held that religious law should be based on the Quran, the Sunnah and the ijma, which last he restricted to the consensus of the companions of the prophet, but in establishing the Sunnah, he gave the practice of the people of Medina preference over traditions, so that the practice of Medina became his decisive argument. So here qiyas was admitted within very narrow limits. .

• There were several other personal schools of law but since about 700 of the hijra , only four schools of law have survived in orthodox islam; the hanifi, the maliki, the shafii and the hanbali schools.

• The four schools are equally covered by ijma, they are all deemed to translate into individual legal rules the will of Allah as expressed in the Quran and in the Sunnah of the prophet; their alternative interpretations are all equally valid, their methods of reasoning equally legitimate so they are equally orthodox.

• To the earliest specialists in religious law, the search for legal rulings had been identical with the exercise of their personal opinion (itjihad al-ray), of their own judgment on what the law ought to be.

• The question as to who was a qualified scholar and who had the right to independent exercise of his own opinion had not yet arisen – it was open to anyone sufficiently interested to embark upon this kind of speculation on religious law.

• The field of individual decision was continually narrowed down, but nevertheless during the whole of the formative period of Islamic law, the first two and a half centuries of Islam, there was never any question of denying to any scholar or specialist of the sacred law the right to find his own solutions to legal problems.

• It was only after the formative period of Islamic law had come to an end that the question of itjihad and of who was qualified to exercise it was raised – by this time, the term itjihad had been separated from its old connexion with the free use of personal opinion (ra’y), and restricted to the drawing of valid conclusions from the Quran, the Sunnah of the prophet, and the consensus, by analogy (qiyas) or systematic reasoning.

• This ‘closing of the door of itjihad’, as it was called, amounted to the demand for taklid, a term which had originally denoted the kind of reference to companions of the prophet that had been customary in the ancient schools of law, and which now came to mean the unquestioning acceptance of the doctrines of established schools and authorities.

• A person entitled to itjihad is called mutjahid, and a person bound to practice taklid, mukallid.

• Under the rule of taklid as it was finally formulated, the doctrine must not be derived independently from the Quran, Sunnah and ijma, but it must be accepted as it is being taught by one of the recognised schools which are, of course, themselves covered by consensus.

• The transition from the regime of itjihad to the regime of taklid occurred, of course, only gradually, and this is reflected by the theory of several degrees of itjihad in descending order.

• The rule of taklid did not impose itself without opposition.

• In later generations, there were scholars who held that there would always be a mujtahid in existence, or who were inclined to claim for themselves that they fulfilled the incredibly high demands which the theory had by then, laid down as a qualification for itjihad.

• Other scholars did not so much claim itjihad for themselves and reject the principle of taklid. This was the case of Dawud ibn Khalaf, the founder of the zahiri school and Ibn Tumart, the founder of the almohad movement – these scholars considered it unauthorised and dangerous to follow blindly the authority of any man, accepting only the prophet, in matters of religious law.

• The theoretical rejection of taklid became one of the doctrines of the Zahiri School.

• Ibn Taymiyya did not explicitly advocate the reopening of the door of itjihad, let alone claim itjihad for himself; but as a consequence of his narrowly formulated idea of consensus, he was able to reject taklid, to interpret the Quran and the traditions from the prophet again, and to arrive at novel conclusions concerning many of the institutions of Islamic law.

• Movement of salafiyya reject traditional taklid. Some modernists in particular combine this with extravagant claims to a new, free itjihad which goes far beyond any that was practiced in the formative period of Islamic law; but neither type of movement has produced any results worth mentioning in the field of positive religious law. The recent reshaping of the institutions of the shari’a by a secular legislation in several Islamic countries takes its inspiration from modern constitutional and social ideas rather than from the essentially traditional problem of the legitimacy of itjihad and taklid.

• Whatever the theory might say on itjihad and taklid, the activity of the later scholars, after the closing of the doors of itjihad, was no less creative, within the limits set to it by the nature of the shari’a, than that of their predecessors. New sets of facts constantly arose in life, and they had to be mastered and moulded with the traditional tools provided by legal science – this activity was carried out by the muftis.

• A mufti is a specialist on law who can give an authoritative opinion on points of doctrine; his considered legal opinion is called fatwa. A mufti’s main function was to advise interpreted members of the public on what was, in their opinion, the correct course of action from the point of view of the sacred law.

• From the beginning, the specialists had formed groups of like-minded amateurs, and in the time of Shafi’I a class of professionals had...