The Ethics of Disagreement in Islam

Chapter Six: Juristic Perspectives

Schools of Jurisprudence (Madhaahib)

After the age of the Companions of the Prophet and their eminent successors - in the period from the end of the first century after the hijrah to the middle of the third century - there appeared some thirteen schools of thought (madhaahib; singular, madhhab) in Islamic jurisprudence. They all identified with Ahl al Sunnah (Upholders of the Sunnah) school, which was and still is the predominant school in the Muslim world. Unfor tunately, only the works of eight or nine of the leading scholars or a'immah of these schools have been fully or partially recorded. From these recorded works in their various forms, the juristic principles (usool) and methodologies of the different schools have become known. These leading scholars were:

1. Aboo Sa`eed al Hasan ibn Yasaar al Basree (d. 110 AH)

2. Aboo Haneefah al Nu`maan ibn Thaabit ibn Zootee (d. 150 AH)

3. Al Awzaa`ee Aboo `Amr `Abd al Rahmaan ibn `Amr ibn Muhammad (d. 157 AH)

4. Sufyaan ibn Sa`eed ibn Masrooq al Thawree (d. 160 AH)

5. Al Layth ibn Sa`d (d. 175 AH)

6. Maalik ibn Anas al Asbahee (d. 179 AH)

7. Soofyaan ibn `Uyaynah (d. 198 AH)

8. Muhammad ibn Idrees al Shaafi`ee (d. 204 AH)

9. Ahmad ibn Muhammad ibn Hanbal (d. 241 AH)

There are other a'immah such as Daawood ibn `Alee al Isbahaanee al Baghdaadee (d. 270 AH) better known as al Zaahiree because of his insistence on sticking to the manifest (.zaahir) or literal meaning of expressions in the Qur'an and the Sunnah; Ishaaq ibn Raahawayh (d. 238 AH); and Aboo Thawr Ibraaheem ibn Khaalid al Kalbee (d. 240 AH). There are others whose schools of jurisprudence did not spread, or whose followers were not many, or who in fact were considered to be followers of the schools of the more well-known scholars.

However, the a'immah whose schools have lasted to this day, who have followers throughout the Muslim world, and whose principles and jurisprudence are still employed in assessing issues and in making legal judgments are mainly four: Aboo Haneefah, Maalik, al Shaafi`ee, and Ahmad ibn Muhammad ibn Hanbal.

Methodologies of the Famous Scholars (A'immah)

The three leading scholars - Maalik, al Shaafi`ee, and ibn Hanbal - are considered as jurists of hadeeth and the established precedents of the Companions of the Prophet. Their jurisprudence was that of the people of Madinah whose knowledge they propagated. Imaam Aboo Haneefah, however, was the inheritor of the jurisprudence of upholders of independent reasoning (ahl al ra'y), becoming the foremost advocate of this school in his age.

The difference which existed between the school of Sa`eed ibn al Musayyib - whose teachings were based on the jurisprudence and established precedents of the companions of the Prophet and which enjoyed the support of the Maalikeeyah, the Shaafi`eeyah and the Hanaabilah - and the school of Ibraaheem al Nakha`ee which relies on independent reasoning in the absence of established precedent - this difference was naturally passed on to whoever adopted the methodology of either school. The intensity with which this difference was maintained was reduced considerably particularly after the khilaafah went to the Banoo `Abbaas - the `Abbaaseeyoon - in the middle of the second century. Following this shift of power, the `Abbaaseeyoon transferred some of the eminent scholars from the Hijaz to Iraq in order to spread the Sunnah among the people there. Some of these scholars were Rabee`ah ibn Abee `Abd al Rahmaan, Yahyaa ibn Sa`id al-`Iraaqee, [ Yahyaa ibn Sa`eed (d. 198 AH) was a contemporary of Imaam Maalik and one of the most distinguished authorities on hadeeth, of which he knew a great deal by heart. He often made judgments according to the jurisprudence of Imaam Aboo Haneefah.] Hishaam ibn `Urwah, [ Hishaam ibn `Urwah (d. 145 AH), one of the Taabi`oon, was one of the most eminent scholars of Madinah of his time. He was trustworthy, knew many ahaadeeth by heart, and was a competent jurist.] and Muhammad ibn Ishaaq [ Muhammad ibn Ishaaq was from Madinah. He took up residence in Iraq and died there in 151 AH. He was an authority on military campaigns (maghaazee) and international relations.]. At the same time, some of the Iraqi scholars went to Madinah and studied with scholars there. Yoosuf Ya`qoob ibn Ibraaheem [ Ya`qoob ibn Ibraaheem (d. 182 AH) was from Baghdad. He was an outstanding student and staunch follower of Imaam Aboo Haneefah. He was the chief judge during the khilaafah of al Haadee, al Mahdee, and al Rasheed.] and Muhammad ibn al Hasan [ Muhammad ibn al Hasan (d. 189 AH) was a colleague of Aboo Haneefah and a disseminator of his jurisprudence. He was appointed by the khaleefah Haaroon al Rasheed as a judge at al Riqqah and al Rayy.] studied with Maalik. All this resulted in a mutual exchange of ideas between Iraq and the Hijaz. Nonetheless, we find that the three scholars - Maalik, al Shaafi`ee, and Ibn Hanbal - were quite similar in their methodology even though they differed in some approaches in using deduction. But the methodology of Imaam Aboo Haneefah remained quite distinct.

Methodology of Imaam Aboo Haneefah

The principles of Aboo Haneefah's methodology are summarized in his own statement:

I first resort to the book of God to find evidence [if I am faced with an issue]. If I do not find any [reference] therein, I resort to the Sunnah of the Messenger of God, may God bless him and grant him peace, and authentic precedents from him which have been handed down by trustworthy persons. If I do not find anything in the Book of God or in the Sunnah of His Messenger, I resort to the statements of his Companions, drawing [freely] upon these as I wish. I do not go beyond this to the statements of others. If the line of enquiry descends to the rank of Ibraaheem, al-Sha`bee, or Ibn al Musayyib, then I am entitled to endeavor to use my ijtihad in the same way as they had done.

These are the cardinal principles of Aboo Haneefah's madhhab. There are however some subsidiary or secondary principles which appear to give rise to differences with the other scholars:

Aboo Haneefah is reported to have said: "We know that this is an opinion and it is the best we were able to produce. However, whoever comes with a better opinion, we will accept it."

Methodology of Imaam Maalik

Maalik, may God be merciful to him, adopted a different approach. He is reported to have said: "How is it that whenever someone comes to us [with an argument], we abandon what Jibreel brought to Muhammad, God's peace and blessings be on him, and argue with him?" [ Al Fikr al Saamee, 1/378.] We have already mentioned that Maalik's methodology was that of the people of the Hijaz, upholders of the school of Sa`eed ibn al Musayyib. The principles of Maalik's school of thought may be summarized thus, in order of priority:

After these five principles with regard to the Qur'an, there are ten others from the Sunnah in order of priority:

Methodology of Imaam al Shaafi`ee

The principles of the school of thought of al Shaafi`ee, may God be merciful to him, are contained in his book al Risaalah, which is considered to be the first and most comprehensive book on the principles of Islamic jurisprudence. Al Shaafi`ee says in this book:

The Qur'an and the Sunnah are the original sources of Islamic jurisprudence. If there is no clear evidence in these two, the legist may resort to qiyaas from these two. If there is a hadeeth of the Prophet whose chain of transmission is sound, no other sources shall be consulted. Ijmaa` is more authoritative than the report of a hadeeth transmitted by a single person. The interpretation of a hadeeth should be based on its clearly apparent meaning. If the hadeeth is open to various interpretations, preference should be given to the interpretation which is closest to the apparent meaning. If a number of ahaadeeth pertaining to a special issue are equal in their import, preference should be given to the hadeeth whose isnaad is sound. In this respect, a hadeeth whose isnaad is interrupted (munqatee`) should not be consulted except those reported by Ibn al Musayyib.

Analogy from a principle (asl) which has already been deduced from a previous principle is not admissible. There should be no question as to "why" or "how" with regard to the original source. Questions as to why should only be addressed to a subsidiary source of law. If analogical deduction from the original source proves to be sound, it should be accepted as such and as a basis for proof. [ Al Risalah]

Al Shaafi`ee therefore considered the Qur'an and the Sunnah as equal in formulating legislation. No condition should be imposed on a hadeeth except its authenticity and correct chain of transmission, since it is in itself a (primary) source of law. Consequently, there should be no question as to "how" or "why" about a valid source of law. Al Shaafi`ee would not impose any condition on a hadeeth which is "well-known" (mashhoor) [ The mashhoor is defined as a hadeeth which is originally reported by one, two, or more Companions from the Prophet or from another Companion but has later become well-known (mashhoor). It is of a lesser degree than hadith mutawaatir.] when it pertains to matters of general necessity, as does Aboo Haneefah. Unlike Maalik, al Shaafi`ee believes that a hadeeth need not be in agreement with the practice of the people of Madinah. However, he rejects hadeeth mursal (a hadeeth transmitted by a Successor without indicating the Companion who reported it to him) in general, but accepts the hadeeth mursal of Sa`eed ibn al Musayyib because in his case he possessed continuous chains of transmitters. Maalik, al Thawree, and his contemporaries among the Ahl al Hadeeth (those specializing in and adhering to hadeeth) differed from al Shaafi`ee in this regard and used such hadeeth mursal to refute contrary arguments. [ Al Fikr al Saamee, 1/399.] Unlike the Maalikeeyah and the Hanafeeyah, al Shaafi`ee rejected istihsaan as a source of Islamic law. In refutation of this principle, he wrote a book titled Ibtaal al Istihsaan ("Invalidating Juristic Preference") in which he made his famous statement: "Whoever argues from juristic preference is making himself the Lawmaker." He also rejected the formulation of laws on the principle of the "public interest" (al maslahah al mursalah) together with the proofs advanced to support this principle. He rejected the use of analogy that was not based on an effective cause (`illah) that was established and clearly manifest (in the Qur'an and Sunnah). He rejected proofs based on the practice of the people of Madinah. He was critical of the Hanafeeyah for their non-compliance with many of the Sunnah practices, because the hadeeth on which they were based failed to meet some of their conditions - conditions for example such as the popularity of a hadeeth. Finally, he did not con fine himself to the hadeeth of the people of the Hijaz as Maalik did.

These are the salient and the most important principles of al Shaafi`ee's school of thought. The differences between them and those formulated by the schools of Maalik and Aboo Haneefah are quite obvious.

Imaam Ahmad ibn Hanbal

The principles of the Hanbalee school of thought are extremely close to those of the Shaafi`ee school. These principles, in order of priority are:

1. When evidence is available in the texts of the Qur'an and the Sunnah, he does not consult any other source. If there is a hadeeth which is "raised" (marfoo`) to the level of authenticity, he does not give priority to any other source such as the practice of the people of Madinah, independent reasoning, analogy, a Companion's saying, or consensus based on the lack of knowledge of the questions in dispute.

2. If no text is available on a question, Ibn Hanbal resorts to the juristic judgments of the Companions. If he finds a Companion's saying which is not contested by other Companions, he adheres to this saying and gives it priority over any other practice, opinion, or analogy.

3. If there is a difference of opinion among the companions over a particular issue, he chooses the opinion which is closest to the Qur'an and the Sunnah and does not go beyond this. If it is not clear to him which opinion is closest to the Qur'an or the Sunnah, he would report the controversy in complete objectivity and abstain from making any decision.

4. He takes as an authority any hadeeth, whether mursal or da`eef (weak), whose authenticity - in either its chain of transmission or content - is not absolutely beyond question, provided it does not clash with an established practice, a Companion's saying, or a consensus of opinion. He would give such a hadeeth priority over analogical deduction.

5. In his opinion, analogy should only be resorted to as a source of law when there is a necessity of passing judgment on an issue which cannot be settled by referring it to any one of the above-mentioned sources and principles.

6. He would adopt the principle of sadd al dharaa'i` (blocking the means to wrongdoing). [ Dharee`ah (pl: dharaa'i` ) refers to the means or the route which leads to a forbid den act. For example, "looking" at persons outside of marriage is a means (dharee`ah) which could lead to adultery. The forbidding of such looks is therefore considered as blocking (sadd) the means to wrongdoing or immoral and harmful acts.]

Methodology of al Imaam Daawood al Zaahiree

It is perhaps appropriate to give a brief idea of the principles and sources of the Zaahiree school of thought, inasmuch as it is one of the Islamic schools which still has some influence and a following among those who uphold the Sunnah. There were serious controversies between this school and that of Aboo Haneefah, and later Maalik, ibn Hanbal, and al Shaafi`ee. However, al Zaahiree recognised his great debt to al Shaafi`ee.

The salient feature of the Zaahiree school is its adherence to the outwardly manifest meanings of the texts of the Qur'an and the Sunnah. Priority is given to these meanings over any other considerations of alternative interpretation, judgment, or public interest. Followers of this school do not practice analogy and contend that it is only applicable when there is an effective cause or ratio legis (`illah) in a text that can be applied to another case which, though not covered by the language, is covered by this cause or reason in the text. This means that the existence of an `illah is a prerequisite for applying analogy.

They prohibit the use of istihsaan and only draw upon the ijmaa` arrived at during the time of the Companions. Unlike the Maalikeeyah, the Hanafeeyah and the Hanaabilah, they do not use any hadeeth which is mursal or munqati`. They do not accept the validity of any laws previous to the Qur'an and they do not allow anyone to apply independent reasoning on the basis of the Qur'anic verse: "Nothing have We omitted from the Book" (6: 38). According to this, they argue that the laws are expressly stated in the original sources and that to disregard this is to transgress the limits set by God Almighty. They consider that following the rulings handed down by a given school (taqleed) is prohibited to the common man, as it is to the scholar, and that every adult Muslim has the responsibility of striving to learn the correct ruling by himself.

It is true to say that many of the principles which are attributed to the leading jurists do deviate from their actual statements and are not corroborated by authentic reports. These baseless principles are then adhered to and defended against any criticism or opposing view. All this gives rise to constant controversy and ultimately detracts attention from the Qur'aan and the Sunnah. This is one of the main causes of pernicious controversy which the a'immah themselves never intended. Latter-day Muslims have drifted far away from matters of high priority and have become engrossed in trivial matters. This accounts for the low depths to which Muslims have sunk.