WWE LEGEND'S SON CONVERTS TO ISLAM

 

Understanding the four Madhabs. Refuting those anti-Madhhab

UNDERSTANDING THE FOUR MADHHABS

the problem with anti-madhhabism 

 Abdal-Hakim Murad

The ummah's greatest achievement over the past millennium has undoubtedly been its internal intellectual cohesion. From the fifth century of the Hijra almost to the present day, and despite the outward drama of the clash of dynasties, the Sunni Muslims have maintained an almost unfailing attitude of religious respect and brotherhood among themselves. It is a striking fact that virtually no religious wars, riots or persecutions divided them during this extended period, so difficult in other ways.

The history of religious movements suggests that this is an unusual outcome. The normal sociological view, as expounded by Max Weber and his disciples, is that religions enjoy an initial period of unity, and then descend into an increasingly bitter factionalism led by rival hierarchies. Christianity has furnished the most obvious example of this; but one could add many others, including secular faiths such as Marxism. On the face of it, Islam's ability to avoid this fate is astonishing, and demands careful analysis.

There is, of course, a straightforwardly religious explanation. Islam is the final religion, the last bus home, and as such has been divinely secured from the more terminal forms of decay. It is true that what Abdul Wadod Shalabi has termed ‘spiritual entropy’. has been at work ever since Islam's inauguration, a fact which is well-supported by a number of hadiths. Nonetheless, Providence has not neglected the ummah. Earlier religions slide gently or painfully into schism and irrelevance; but Islamic piety, while fading in quality, has been given mechanisms which allow it to retain much of the sense of unity emphasised in its glory days. Wherever the antics of the emirs and politicians might lead, the brotherhood of believers, a reality in the initial career of Christianity and some other faiths, continues, fourteen hundred years on, to be a compelling principle for most members of the final and definitive community of revelation in Islam. The reason is simple and unarguable: God has given us this religion as His last word, and it must therefore endure, with its essentials of tawhid, worship and ethics intact, until the Last Days.

Such an explanation has obvious merit. But we will still need to explain some painful exceptions to the rule in the earliest phase of our history. The Prophet himself (pbuh) had told his Companions, in a hadith narrated by Imam Tirmidhi, that "Whoever among you outlives me shall see a vast dispute". The initial schisms: the disastrous revolt against Uthman (r.a.) the clash between Ali (r.a.) and Talha, and then with Mu`awiyah. the bloody scissions of the Kharijites - all these drove knives of discord into the Muslim body politic almost from the outset. Only the inherent sanity and love of unity among scholars of the ummah assisted, no doubt, by Providence overcame the early spasms of factionalism, and created a strong and harmonious Sunnism which has, at least on the purely religious plane, united ninety percent of the ummah for ninety percent of its history.

It will help us greatly to understand our modern, increasingly divided situation if we look closely at those forces which divided us in the distant past. There were many of these, some of them very eccentric; but only two took the form of mass popular movements, driven by religious ideology, and in active rebellion against majoritarian faith and scholarship. For good reasons, these two acquired the names of Kharijism and Shi'ism. Unlike Sunnism, both were highly productive of splinter groups and sub-movements; but they nonetheless remained as recognisable traditions of dissidence because of their ability to express the two great divergences from mainstream opinion on the key question of the source of religious authority in Islam.

Confronted with what they saw as moral slippage among early caliphs, posthumous partisans of Ali (r.a.) developed a theory of religious authority which departed from the older egalitarian assumptions by vesting it in a charismatic succession of Imams. We need not stop here to investigate the question of whether this idea was influenced by the Eastern Christian background of some early converts, who had been nourished on the idea of the mystical apostolic succession to Christ, a gift which supposedly gave the Church the unique ability to read his mind for later generations. What needs to be appreciated is that Shi'ism, in its myriad forms, developed as a response to a widely-sensed lack of definitive religious authority in early Islamic society. As the age of the Righteous Caliphs came to a close, and the Umayyad rulers departed ever more conspicuously from the lifestyle expected of them as Commanders of the Faithful, the sharply-divergent and still nascent schools of fiqh seemed inadequate as sources of strong and unambiguous authority in religious matters. Hence the often irresistible seductiveness of the idea of an infallible Imam.

This interpretation of the rise of Imamism also helps to explain the second great phase in Shi'i expansion. After the success of the fifth-century Sunni revival, when Sunnism seemed at last to have become a fully coherent system, Shi'ism went into a slow eclipse. Its extreme wing, as manifested in Ismailism, received a heavy blow at the hands of Imam al-Ghazali, whose book "Scandals of the Batinites" exposed and refuted their secret doctrines with devastating force.

This decline in Shi'i fortunes was only arrested after the mid-seventh century, once the Mongol hordes under Genghis Khan had invaded and obliterated the central lands of Islam. The onslaught was unimaginably harsh: we are told, for instance, that out of a hundred thousand former inhabitants of the city of Herat, only forty survivors crept out of the smoking ruins to survey the devastation. In the wake of this tidal wave of mayhem, newly-converted Turcoman nomads moved in, who, with the Sunni ulama of the cities dead, and a general atmosphere of fear, turbulence, and Messianic expectation in the air, turned readily to extremist forms of Shi'i belief. The triumph of Shi'ism in Iran, a country once loyal to Sunnism, dates back to that painful period.

The other great dissident movement in early Islam was that of the Kharijites, literally, the seceders, so-called because they seceded from the army of the Caliph Ali when he agreed to settle his dispute with Muawiyah through arbitration. Calling out the Quranic slogan, "Judgement is only God's", they fought bitterly against Ali and his army which included many of the leading Companions, until, in the year 38, Imam Ali defeated them at the Battle of Nahrawan, where some ten thousand of them perished.

Although the first Kharijites were destroyed, Kharijism itself lived on. As it formulated itself, it turned into the precise opposite of Shi'ism, rejecting any notion of inherited or charismatic leadership, and stressing that leadership of the community of believers should be decided by piety alone. This was assessed by very rudimentary criteria: the early Kharijites were known for extreme toughness in their devotions, and for the harsh doctrine that any Muslim who commits a major sin is an unbeliever. This notion of takfir (declaring Muslims to be outside Islam), permitted the Kharijite groups, camping out in remote mountain districts of Khuzestan, to raid Muslim settlements which had accepted Umayyad authority. Non-Kharijis were routinely slaughtered in these operations, which brought merciless reprisals from tough Umayyad generals such as al-Hajjaj ibn Yusuf. But despite the apparent hopelessness of their cause, the Kharijite attacks continued. The Caliph Ali (r.a.) was assassinated by Ibn Muljam, a survivor of Nahrawan, while the hadith scholar Imam al-Nasai, author of one of the most respected collections of sunan, was likewise murdered by Kharijite fanatics in Damascus in 303/915.

Like Shi'ism, Kharijism caused much instability in Iraq and Central Asia, and on occasion elsewhere, until the fourth and fifth centuries of Islam. At that point, something of historic moment occurred. Sunnism managed to unite itself into a detailed system that was now so well worked-out, and so obviously the way of the great majority ofulama, that the attraction of the rival movements diminished sharply.

What happened was this. Sunni Islam, occupying the middle ground between the two extremes of egalitarian Kharijism and hierarchical Shi'ism, had long been preoccupied with disputes over its own concept of authority. For the Sunnis, authority was, by definition, vested in the Quran and Sunnah. But confronted with the enormous body ofhadiths, which had been scattered in various forms and narrations throughout the length and breadth of the Islamic world following the migrations of the Companions and Followers, the Sunnah sometimes proved difficult to interpret. Even when the sound hadiths had been sifted out from this great body of material, which totalled several hundred thousand hadith reports, there were some hadiths which appeared to conflict with each other, or even with verses of the Quran. It was obvious that simplistic approaches such as that of the Kharijites, namely, establishing a small corpus of hadiths and deriving doctrines and law from them directly, was not going to work. The internal contradictions were too numerous, and the interpretations placed on them too complex, for the qadis (judges) to be able to dish out judgements simply by opening the Quran and hadith collections to an appropriate page.

The reasons underlying cases of apparent conflict between various revealed texts were scrutinised closely by the early ulama, often amid sustained debate between brilliant minds backed up with the most perfect photographic memories. Much of the science of Islamic jurisprudence (usul al-fiqh) was developed in order to provide consistent mechanisms for resolving such conflicts in a way which ensured fidelity to the basic ethos of Islam. The term taarud al-adilla (mutual contradiction of proof-texts) is familiar to all students of Islamic jurisprudence as one of the most sensitive and complex of all Muslim legal concepts.

 Early scholars such as Ibn Qutayba felt obliged to devote whole books to the subject.

The ulama of usul recognised as their starting assumption that conflicts between the revealed texts were no more than conflicts of interpretation, and could not reflect inconsistencies in the Lawgiver's message as conveyed by the Prophet (pbuh). The message of Islam had been perfectly conveyed before his demise; and the function of subsequent scholars was exclusively one of interpretation, not of amendment.

Armed with this awareness, the Islamic scholar, when examining problematic texts, begins by attempting a series of preliminary academic tests and methods of resolution. The system developed by the early ulama was that if two Quranic or hadith texts appeared to contradict each other, then the scholar must first analyse the texts linguistically, to see if the contradiction arises from an error in interpreting the Arabic. If the contradiction cannot be resolved by this method, then he must attempt to determine, on the basis of a range of textual, legal and historiographic techniques, whether one of them is subject to takhsis, that is, concerns special circumstances only, and hence forms a specific exception to the more general principle enunciated in the other text.

 The jurist must also assess the textual status of the reports, recalling the principle that a Quranic verse will overrule a hadith related by only one isnad (the type of hadith known as ahad), as will a hadith supplied by many isnads (mutawatir ormashhur). If, after applying all these mechanisms, the jurist finds that the conflict remains, he must then investigate the possibility that one of the texts was subject to formal abrogation (naskh) by the other.

This principle of naskh is an example of how, when dealing with the delicate matter of taarud al-adilla, the Sunni ulama founded their approach on textual policies which had already been recognised many times during the lifetime of the Prophet (pbuh). The Companions knew by ijma that over the years of the Prophets ministry, as he taught and nurtured them, and brought them from the wildness of paganism to the sober and compassionate path of monotheism, his teaching had been divinely shaped to keep pace with their development. The best-known instance of this was the progressive prohibition of wine, which had been discouraged by an early Quranic verse, then condemned, and finally prohibited. Another example, touching an even more basic principle, was the canonical prayer, which the early ummah had been obliged to say only twice daily, but which, following the Miraj, was increased to five times a day.

Mutah (temporary marriage) had been permitted in the early days of Islam, but was subsequently prohibited as social conditions developed, respect for women grew, and morals became firmer. There are several other instances of this, most being datable to the years immediately following the Hijra, when the circumstances of the young ummah changed in radical ways.

There are two types of naskh: explicit (sarih) or implicit (dimni).The former is easily identified, for it involves texts which themselves specify that an earlier ruling is being changed. For instance, there is the verse in the Quran (2:142) which commands the Muslims to turn in prayer to the Kaba rather than to Jerusalem.In the hadithliterature this is even more frequently encountered; for example, in a hadith narrated by Imam Muslim we read: "I used to forbid you to visit graves; but you should now visit them."Commenting on this, the ulama of hadith explain that in early Islam, when idolatrous practices were still fresh in peoples memories, visiting graves had been forbidden because of the fear that some new Muslims might commit shirk. As the Muslims grew stronger in their monotheism, however, this prohibition was discarded as no longer necessary, so that today it is a recommended practice for Muslims to go out to visit graves in order to pray for the dead and to be reminded of the akhira.

The other type of naskh is more subtle, and often taxed the brilliance of the early ulama to the limit. It involves texts which cancel earlier ones, or modify them substantially, but without actually stating that this has taken place. The ulama have given many examples of this, including the two verses in Surat al-Baqarah which give differing instructions as to the period for which widows should be maintained out of an estate (2:240 and 234). And in the hadith literature, there is the example of the incident in which the Prophet (pbuh) once told the Companions that when he prayed sitting because he was burdened by some illness, they should sit behind him. This hadith is given by Imam Muslim. And yet we find another hadith, also narrated by Muslim, which records an incident in which the Companions prayed standing while the Prophet (pbuh) was sitting. The apparent contradiction has been resolved by careful chronological analysis, which shows that the latter incident took place after the former, and therefore takes precedence over it. This has duly been recorded in the fiqh of the great scholars.

The techniques of naskh identification have enabled the ulama to resolve most of the recognised cases of taarud al-adilla. They demand a rigorous and detailed knowledge not just of the hadith disciplines, but of history, sirah, and of the views held by the Companions and other scholars on the circumstances surrounding the genesis and exegesis of the hadith in question. In some cases, hadith scholars would travel throughout the Islamic world to locate the required information pertinent to a single hadith.

In cases where in spite of all efforts, abrogation cannot be proven, then the ulama of the salaf recognised the need to apply further tests. Important among these is the analysis of the matn (the transmitted text rather than the isnad of the hadith).Clear (sarih) statements are deemed to take precedence over allusive ones (kinayah), and definite (muhkam) words take precedence over words falling into more ambiguous categories, such as the interpreted (mufassar), the obscure (khafi) and the problematic (mushkil). It may also be necessary to look at the position of the narrators of the conflicting hadiths, giving precedence to the report issuing from the individual who was more directly involved. A famous example of this is the hadith narrated by Maymunah which states that the Prophet (pbuh) married her when not in a state of consecration (ihram) for the pilgrimage. Because her report was that of an eyewitness, her hadith is given precedence over the conflicting report from Ibn Abbas, related by a similarly sound isnad, which states that the Prophet was in fact in a state of ihram at the time.

There are many other rules, such as that which states that ‘prohibition takes precedence over permissibility.’ Similarly, conflicting hadiths may be resolved by utilising the fatwa of a Companion, after taking care that all the relevant fatwa are compared and assessed. Finally, recourse may be had to qiyas (analogy).

An example of this is the various reports about the solar eclipse prayer (salat al-kusuf), which specify different numbers of bowings and prostrations. The ulama, having investigated the reports meticulously, and having been unable to resolve the contradiction by any of the mechanisms outlined above, have applied analogical reasoning by concluding that since the prayer in question is still called salaat, then the usual form of salaat should be followed, namely, one bowing and two prostrations. The other hadiths are to be abandoned.

This careful articulation of the methods of resolving conflicting source-texts, so vital to the accurate derivation of the Shariah from the revealed sources, was primarily the work of Imam al-Shafi'i. Confronted by the confusion and disagreement among the jurists of his day, and determined to lay down a consistent methodology which would enable a fiqh to be established in which the possibility of error was excluded as far as was humanly possible, Shafi'i wrote his brilliant Risala (Treatise on Islamic jurisprudence). His ideas were soon taken up, in varying ways, by jurists of the other major traditions of law; and today they are fundamental to the formal application of the Shariah.

Shafi'i's system of minimising mistakes in the derivation of Islamic rulings from the mass of evidence came to be known as usul al-fiqh (the roots of fiqh). Like most of the other formal academic disciplines of Islam, this was not an innovation in the negative sense, but a working-out of principles already discernible in the time of the earliest Muslims. In time, each of the great interpretative traditions of Sunni Islam codified its own variation on these roots, thereby yielding in some cases divergent branches (i.e. specific rulings on practice). Although the debates generated by these divergences could sometimes be energetic, nonetheless, they were insignificant when compared to the great sectarian and legal disagreements which had arisen during the first two centuries of Islam before the science of usul al-fiqh had put a stop to such chaotic discord.

It hardly needs remarking that although the Four Imams, Abu Hanifa, Malik ibn Anas, al-Shafi'i and Ibn Hanbal, are regarded as the founders of these four great traditions, which, if we were asked to define them, we might sum up as sophisticated techniques for avoiding innovation, their traditions were fully systematised only by later generations of scholars. The Sunni ulama rapidly recognised the brilliance of the Four Imams, and after the late third century of Islam we find that hardly any scholars adhered to any other approach. The great hadith specialists, including al-Bukhari and Muslim, were all loyal adherents of one or another of the madhhabs, particularly that of Imam al-Shafi'i. But within each madhhab, leading scholars continued to improve and refine the roots and branches of their school. In some cases, historical conditions made this not only possible, but necessary. 

For instance, scholars of the school of Imam Abu Hanifah, which was built on the foundations of the early legal schools of Kufa and Basra, were wary of some hadiths in circulation in Iraq because of the prevalence of forgery engendered by the strong sectarian influences there. Later, however, once the canonical collections of Bukhari, Muslim and others became available, subsequent generations of Hanafi scholars took the entire corpus of hadiths into account in formulating and revising their madhhab. This type of process continued for two centuries, until the Schools reached a condition of maturity in the fourth and fifth centuries of the Hijra.

It was at that time, too, that the attitude of toleration and good opinion between the Schools became universally accepted. This was formulated by Imam al-Ghazali, himself the author of four textbooks of Shafi'i fiqh, and also of Al-Mustasfa, widely acclaimed as the most advanced and careful of all works on usul, usul al-fiqh fil madhhab. With his well-known concern for sincerity, and his dislike of ostentatious scholarly rivalry, he strongly condemned what he falled ‘fanatical attachment to a madhhab’.While it was necessary for the Muslim to follow a recognised madhhab in order to avert the lethal danger of misinterpreting the sources, he must never fall into the trap of considering his own school categorically superior to the others. With a few insignificant exceptions in the late Ottoman period, the great scholars of Sunni Islam have followed the ethos outlined by Imam al-Ghazali, and have been conspicuously respectful of each others madhhab. Anyone who has studied under traditional ulama will be well-aware of this fact.

The evolution of the Four Schools did not stifle, as some Orientalists have suggested,[the capacity for the refinement or extension of positive law. On the contrary, sophisticated mechanisms were available which not only permitted qualified individuals to derive the Shariah from the Quran and Sunnah on their own authority, but actually obliged them to do this. According to most scholars, an expert who has fully mastered the sources and fulfilled a variety of necessary scholarly conditions is not permitted to follow the prevalent rulings of his School, but must derive the rulings himself from the revealed sources. Such an individual is known as a mujtahid, a term derived from the famous hadith of Muadh ibn Jabal.

Few would seriously deny that for a Muslim to venture beyond established expert opinion and have recourse directly to the Quran and Sunnah, he must be a scholar of great eminence. The danger of less-qualified individuals misunderstanding the sources and hence damaging the Shariah is a very real one, as was shown by the discord and strife which afflicted some early Muslims, and even some of the Companions themselves, in the period which preceded the establishment of the Orthodox Schools. Prior to Islam, entire religions had been subverted by inadequate scriptural scholarship, and it was vital that Islam should be secured from a comparable fate.

In order to protect the Shariah from the danger of innovation and distortion, the great scholars of usul laid down rigorous conditions which must be fulfilled by anyone wishing to claim the right of ijtihad for himself.These conditions include:

(a) mastery of the Arabic language, to minimise the possibility of misinterpreting Revelation on purely linguistic grounds;

(b) a profound knowledge of the Quran and Sunnah and the circumstances surrounding the revelation of each verse and hadith, together with a full knowledge of the Quranic and hadith commentaries, and a control of all the interpretative techniques discussed above;

(c) knowledge of the specialised disciplines of hadith, such as the assessment of narrators and of the matn [text];

(d) knowledge of the views of the Companions, Followers and the great imams, and of the positions and reasoning expounded in the textbooks of fiqh, combined with the knowledge of cases where a consensus (ijma) has been reached;

(e) knowledge of the science of juridical analogy (qiyas), its types and conditions;

(f) knowledge of ones own society and of public interest (maslahah);

(g) knowing the general objectives (maqasid) of the Shariah;

(h) a high degree of intelligence and personal piety, combined with the Islamic virtues of compassion, courtesy, and modesty.

A scholar who has fulfilled these conditions can be considered a mujtahid fil-shar, and is not obliged, or even permitted, to follow an existing authoritative madhhab.This is what some of the Imams were saying when they forbade their great disciples from imitating them uncritically. But for the much greater number of scholars whose expertise has not reached such dizzying heights, it may be possible to become a mujtahid fi’l-madhhab, that is, a scholar who remains broadly convinced of the doctrines of his school, but is qualified to differ from received opinion within it.There have been a number of examples of such men, for instance Imam al-Nawawi among the Shafi'is, Qadi Ibn Abd al-Barr among the Malikis, Ibn Abidin among the Hanafis, and Ibn Qudama among the Hanbalis. All of these scholars considered themselves followers of the fundamental interpretative principles of their own madhhabs, but are on record as having exercised their own gifts of scholarship and judgement in reaching many new verdicts within them.

It is to these experts that the Mujtahid Imams directed their advice concerning ijtihad, such as Imam al-Shafi'i's instruction that ‘if you find a hadith that contradicts my verdict, then follow the hadith’. It is obvious that whatever some writers nowadays like to believe, such counsels were never intended for use by the Islamically-uneducated masses. Imam al-Shafi`i was not addressing a crowd of butchers, nightwatchman and donkey-drovers.

Other categories of mujtahids are listed by the usul scholars; but the distinctions between them are subtle and not relevant to our theme. The remaining categories can in practice be reduced to two: the muttabi (follower), who follows his madhhab while being aware of the Quranic and hadith texts and the reasoning, underlying its positions, and secondly the muqallid (emulator), who simply conforms to the madhhab because of his confidence in its scholars, and without necessarily knowing the detailed reasoning behind all its thousands of rulings.

Clearly it is recommended for the muqallid to learn as much as he or she is able of the formal proofs of the madhhab. But it is equally clear that not every Muslim can be a scholar. Scholarship takes a lot of time, and for the ummah to function properly most people must have other employment: as accountants, soldiers, butchers, and so forth. As such, they cannot reasonably be expected to become great ulama as well, even if we suppose that all of them have the requisite intelligence. The Holy Quran itself states that less well-informed believers should have recourse to qualified experts: So ask the people of remembrance, if you do not know (16:43). (According to thetafsir experts, the people of remembrance are the ulama.) And in another verse, the Muslims are enjoined to create and maintain a group of specialists who provide authoritative guidance for non-specialists: A band from each community should stay behind to gain instruction in religion and to warn the people when they return to them, so that they may take heed (9:122).

 Given the depth of scholarship needed to understand the revealed texts accurately, and the extreme warnings we have been given against distorting the Revelation, it is obvious that ordinary Muslims are duty bound to follow expert opinion, rather than rely on their own reasoning and limited knowledge. This obvious duty was well-known to the early Muslims: the Caliph Umar (r.a.) followed certain rulings of Abu Bakr (r.a.), saying I would be ashamed before God to differ from the view of Abu Bakr. And Ibn Masud (r.a.), in turn, despite being a mujtahid in the fullest sense, used in certain issues to follow Umar (r.a.). According to al-Shabi: Six of the Companions of the Prophet (pbuh) used to give fatwas to the people: Ibn Masud, Umar ibn al-Khattab, Ali, Zayd ibn Thabit, Ubayy ibn Kab, and Abu Musa (al-Ashari). And out of these, three would abandon their own judgements in favour of the judgements of three others: Abdallah (ibn Masud) would abandon his own judgement for the judgement of Umar, Abu Musa would abandon his own judgement for the judgement of Ali, and Zayd would abandon his own judgement for the judgement of Ubayy ibn Kab.

This verdict, namely that one is well-advised to follow a great Imam as ones guide to the Sunnah, rather than relying on oneself, is particularly binding upon Muslims in countries such as Britain, among whom only a small percentage is even entitled to have a choice in this matter. This is for the simple reason that unless one knows Arabic, then even if one wishes to read all the hadith determining a particular issue, one cannot. For various reasons, including their great length, no more than ten of the basichadith collections have been translated into English. There remain well over three hundred others, including such seminal works as the Musnad of Imam Ahmad ibn Hanbal, the Musannaf of Ibn Abi Shayba the Sahih of Ibn Khuzayma, the Mustadrak of al-Hakim, and many other multi-volume collections, which contain large numbers of sound hadiths which cannot be found in Bukhari, Muslim, and the other works that have so far been translated.

 Even if we assume that the existing translations are entirely accurate, it is obvious that a policy of trying to derive the Shariah directly from the Book and the Sunnah cannot be attempted by those who have no access to the Arabic. To attempt to discern the Shariah merely on the basis of the hadiths which have been translated will be to ignore and amputate much of the Sunnah, hence leading to serious distortions.

Let me give just two examples of this. The Sunni Madhhabs, in their rules for the conduct of legal cases, lay down the principle that the canonical punishments (hudud) should not be applied in cases where there is the least ambiguity, and that the qadi should actively strive to prove that such ambiguities exist. An amateur reading in the Sound Six collections will find no confirmation of this. But the madhhab ruling is based on a hadith narrated by a sound chain, and recorded in theMusannaf of Ibn Abi Shayba, the Musnad of al-Harithi, and the Musnad of Musaddad ibn Musarhad. The text is: "Ward off the hudud by means of ambiguities."Imam al-Sanani, in his book Al-Ansab, narrates the circumstances of this hadith: "A man was found drunk, and was brought to Umar, who ordered the hadd of eighty lashes to be applied. When this had been done, the man said: Umar, you have wronged me! I am a slave! (Slaves receive only half the punishment.) Umar was grief-stricken at this, and recited the Prophetic hadith, Ward off the hudud by means of ambiguities."

Another example is provided by the practice of istighfar for others during the Hajj. According to a hadith, ‘Forgiveness is granted to the Hajji, and to those for whom the Hajji prays.’ This hadith is not related in any of the collections so far translated into English; but it is narrated, by a sound isnad, in many other collections, including al-Mu`jam al-Saghir of al-Tabarani and the Musnad of al-Bazzar.

Another example pertains to the important practice, recognised by the madhhabs, of performing sunnah prayers as soon as possible after the end of the Maghrib obligatory prayer. The hadith runs: Make haste to perform the two rakas after the Maghrib, for they are raised up (to Heaven) alongside the obligatory prayer. The hadith is narrated by Imam Razin in his Jami.

Because of the traditional pious fear of distorting the Law of Islam, the overwhelming majority of the great scholars of the past - certainly well over ninety-nine percent of them - have adhered loyally to a madhhab. It is true that in the troubled fourteenth century a handful of dissenters appeared, such as Ibn Taymiyyah and Ibn al-Qayyim; but even these individuals never recommended that semi-educated Muslims should attempt ijtihad without expert help. And in any case, although these authors have recently been resurrected and made prominent, their influence on the orthodox scholarship of classical Islam was negligible, as is suggested by the small number of manuscripts of their works preserved in the great libraries of the Islamic world.

Nonetheless, social turbulences have in the past century thrown up a number of writers who have advocated the abandonment of authoritative scholarship. The most prominent figures in this campaign were Muhammad Abduh and his pupil Muhammad Rashid Rida.[Dazzled by the triumph of the West, and informed in subtle ways by their own well-documented commitment to Freemasonry, these men urged Muslims to throw off the shackles of taqlid, and to reject the authority of the Four Schools. Today in some Arab capitals, especially where the indigenous tradition of orthodox scholarship has been weakened, it is common to see young Arabs filling their homes with every hadith collection they can lay their hands upon, and poring over them in the apparent belief that they are less likely to misinterpret this vast and complex literature than Imam al-Shafi'i, Imam Ahmad, and the other great Imams. 

This irresponsible approach, although still not widespread, is predictably opening the door to sharply divergent opinions, which have seriously damaged the unity, credibility and effectiveness of the Islamic movement, and provoked sharp arguments over issues settled by the great Imams over a thousand years ago.It is common now to see young activists prowling the mosques, criticising other worshippers for what they believe to be defects in their worship, even when their victims are following the verdicts of some of the great Imams of Islam. The unpleasant, Pharisaic atmosphere generated by this activity has the effect of discouraging many less committed Muslims from attending the mosque at all. No-one now recalls the view of the early ulama, which was that Muslims should tolerate divergent interpretations of the Sunnah as long as these interpretations have been held by reputable scholars. As Sufyan al-Thawri said: ‘If you see a man doing something over which there is a debate among the scholars, and which you yourself believe to be forbidden, you should not forbid him from doing it.’ The alternative to this policy is, of course, a disunity and rancour which will poison and cripple the Muslim community from within.

In a Western-influenced global culture in which people are urged from early childhood to think for themselves and to challenge established authority, it can sometimes be difficult to muster enough humility to recognise ones own limitations. We are all a little like Pharaoh: our egos are by nature resistant to the idea that anyone else might be much more intelligent or learned than ourselves. The belief that ordinary Muslims, even if they know Arabic, are qualified to derive rulings of the Shariah for themselves, is an example of this egotism running wild. To young people proud of their own judgement, and unfamiliar with the complexity of the sources and the brilliance of authentic scholarship, this can be an effective trap, which ends by luring them away from the orthodox path of Islam and into an unintentional agenda of provoking deep divisions among the Muslims. The fact that all the great scholars of the religion, including the hadith experts, themselves belonged to madhhabs, and required their students to belong to madhhabs, seems to have been forgotten. Self-esteem has won a major victory here over common sense and Islamic responsibility.

The Holy Quran commands Muslims to use their minds and reflective capacities; and the issue of following qualified scholarship is an area in which this faculty must be very carefully deployed. The basic point should be appreciated that no categoric difference exists between usul al-fiqh and any other specialised science requiring lengthy training. Shaykh Sa`id Ramadan al-Buti, who has articulated the orthodox response to the anti-Madhhab trend in his book: Non-Madhhabism: The Greatest Bida Threatening the Islamic Shari`a, likes to compare the science of deriving rulings to that of medicine. "If ones child is seriously ill", he asks, "does one look for oneself in the medical textbooks for the proper diagnosis and cure, or should one go to a trained medical practitioner?" Clearly, sanity dictates the latter option. And so it is in matters of religion, which are in reality even more important and potentially hazardous: we would be both foolish and irresponsible to try to look through the sources ourselves, and become our own muftis. Instead, we should recognise that those who have spent their entire lives studying the Sunnah and the principles of law are far less likely to be mistaken than we are.

Another metaphor might be added to this, this time borrowed from astronomy. We might compare the Quranic verses and the hadiths to the stars. With the naked eye, we are unable to see many of them clearly; so we need a telescope. If we are foolish, or proud, we may try to build one ourselves. If we are sensible and modest, however, we will be happy to use one built for us by Imam al-Shafi'i or Ibn Hanbal, and refined, polished and improved by generations of great astronomers. A madhhab is, after all, nothing more than a piece of precision equipment enabling us to see Islam with the maximum clarity possible. If we use our own devices, our amateurish attempts will inevitably distort our vision.

A third image might also be deployed. An ancient building, for instance the Blue Mosque in Istanbul, might seem imperfect to some who worship in it. Young enthusiasts, burning with a desire to make the building still more exquisite and well-made (and no doubt more in conformity with their own time-bound preferences), might gain access to the crypts and basements which lie under the structure, and, on the basis of their own understanding of the principles of architecture, try to adjust the foundations and pillars which support the great edifice above them. They will not, of course, bother to consult professional architects, except perhaps one or two whose rhetoric pleases them nor will they be guided by the books and memoirs of those who have maintained the structure over the centuries. Their zeal and pride leaves them with no time for that. Groping through the basements, they bring out their picks and drills, and set to work with their usual enthusiasm.

There is a real danger that Sunni Islam is being treated in a similar fashion. The edifice has stood for centuries, withstanding the most bitter blows of its enemies. Only from within can it be weakened. No doubt, Islam has its intelligent foes among whom this fact is well-known. The spectacle of the disunity and fitnas which divided the early Muslims despite their superior piety, and the solidity and cohesiveness of Sunnism after the final codification of the Shariah in the four Schools of the great Imams, must have put ideas into many a malevolent head. This is not to suggest in any way that those who attack the great madhhabs are the conscious tools of Islam’s enemies. 

But it may go some way to explaining why they will continue to be well-publicised and well-funded, while the orthodox alternative is starved of resources. With every Muslim now a proud mujtahid, and with taqlid dismissed as a sin rather than a humble and necessary virtue, the divergent views which caused such pain in our early history will surely break surface again. Instead of four madhhabs in harmony, we will have a billion madhhabs in bitter and self-righteous conflict. No more brilliant scheme for the destruction of Islam could ever have been devised.

The Four Eponyms of Sunni Islamic

The Polemic of Ijtihȃd versus Taqlȋd
KASIM RANDEREE
The Four Eponyms of Sunni Islamic
Jurisprudence: An Examination of the Historical
Development of the Dominant Madhȃhib and the
Polemic of Ijtihȃd versus Taqlȋd

Abstract: The framing of Islamic law in the first four centuries of Islam is of great significance to scholars. During this period, the Islamic diaspora was in the earliest part of its development, establishing its identity and developing the foundations of its knowledge principles. These times were tumultuous; yet, at the same time, what occurred during these early centuries formed the bedrock upon which a further millennium of growth has taken place in this global religion.

Many forces were interplaying during these early years in the context of Islamic law. “Independents,” who formed a majority of Islamic theorists, gradually disappeared and gave way to “Muqallidȋn” and there was discourse and allegiance amongst “Rationalists” and “Traditionalists.” There was a shift away from early regional schools (of thought) to personal schools and tremendous debate raged about Ijtihȃd and Taqlȋd. In more recent times, over the past century, orientalist commentators on the period, who have painted a picture of these early centuries of the Islamic legal system and jurisprudence as being somewhat cut and dry, have begun to be challenged. Such for example, who wrote in the early to mid-twentieth century, later had his views nuanced by scholars such as Hallaq and others. This paper thus examines the early formation of the four schools of Islamic law, recounts brief biographical accounts of their founders, and discusses the challenges faced during those early years of Islamic legal history, which are a source of disagreement among contemporary scholars.

In essence, the foundation phase relates to the era of the prophetic mission of the Prophet Muhammad (609-632 CE), dominated by Qur’ȃnic revelation (Randeree, 2010) and prophetic Ḥadȋth providing legislation and rulings to the followers of the early Muslim population.

The second phase, establishment, deals with the period of the four Sunni Caliphs, namely,

Abȗ Bakr as-Șiddīq (Abdullah ibn Uthmȃn Abi Quhafȃ), Umar ibn Al-Khattȃb, Uthmȃn ibn

‘Affȃn and Ali ibn Abi Țȃlib. This period extended from the death of the Prophet Muhammad in 632 CE until the assassination of Ali in 661 CE.

The principles of deductive reasoning, or Ijtihȃd, were laid down in this time, in part out of the necessity to cope with the rapid and vast expansion of Muslim territories which brought with it new challenges requiring legal rulings distinctive from earlier times. Islamic jurisprudence and law thus remained linked to the state legislation governed by the Caliph and thus prevented the emergence of a plurality in Madhȃhib during this phase.

The third phase, building, covers the period of the Umayyad dynasty from 661 CE until the

middle of the eighth century. This was a period of tremendous upheaval and change, a shift from the centrality of the unifying Caliphs gradually to kingships, the dispersal of scholars across vast.

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territories and countless cultures, the emergence of sects such as Shi’i and the Khawȃrij, the fabrication of Ḥadȋth in support of sectarian views and the division of scholars along the lines of rationalist (Așḥȃb al-Ra’y) and traditionalist (Așḥȃb al-Ḥadȋth). The emergence of the early schools of law occurred during this time, though the emphasis appeared to be on geographic schools rather than personal schools in this phase. Most prominently, Abȗ Ḥanȋfah2 and Sufyȃn al-Thawri were active in Kufah, Mȃlik ibn Anas3 in Medina, al-Awzȃ’y in Beirut and al-Layth ibn Șa’d in Egypt.

The final formative stage, flowering, covered the Abbȃsid dynasty and occurred from the

middle of the eighth century and extended until around 950 CE. During this period,

jurisprudence took on a formative shape, the four Madhȃhib became firmly rooted, Islamic jurisprudence became well-defined into Ușȗl and Furu’, the sources of Islamic law established a definitive hierarchy, centres of learning became more established and recognised, particularly in Iraq and Medina, compilations well-known by contemporary scholars were written, including the texts by the founders of the Madhȃhib and books of Ḥadȋth were completed in their entirety, including the six Mashhur books of Ḥadȋth.4 Towards the latter part of this phase, however, the established Madhȃhib witnessed the emergence of rigidity amongst the scholars and Taqlȋd amongst their followers.

The Dominant Madhȃhib

The four schools of Islamic jurisprudence that became dominant display a number of nuances reflecting differences of opinion amongst their four eponyms. This is significant given the fact that, at some level or another, the founders were known to each other and in some cases, students or teachers of one another. “If one closely examines the Fiqh of the four schools, one will never come across any difference of opinions as far as the basic principles of Islam are concerned. The differences mainly centre around Furu’ȃt (tiny branches) of theology rather than the Ușȗl (the fundamental principles) of belief.”

This view is supported by Bilal Philips (1990) who demonstrated that all the eponyms had

the Qur’ȃn and the Prophet’s authority in common as their primary sources of Islamic law.

Islamic law and the Prophetic injunction in relation to it are of further interest when discussing areas of contention and commonality amongst the eponyms. Jackson (1993) expounds that al- Shȃfi’ȋ5, in his book al-Risȃla, elaborates about the issue of the Prophetic legislation being Abȗ Ḥanȋfah.

Imam Abu Hanifah

Abȗ Ḥanȋfah (Nucman bin Thâbit, 703-767 CE), born in Kufah, Iraq, regarded amongst the Tabi’ȗn due to his receiving knowledge from several of the companions of Muhammad, including Anas ibn Mȃlik (Abȗ Zahra, 2001), is best known for belonging to Așḥȃb al-Ra’y, basing his teaching method on that of group discourse, or Shuru’, and the concept of Istiḥsȃn (precedence of situation) and ‘Urf (local customs). His students most famously include Abȗ Yȗsuf, who was appointed chief judge by Hȃrȗn al-Rashȋd amongst others, and Muhammad ibn al-Ḥasan al-Shaybȃnȋ, also chief judge under the same ruler as well as a student of both Abȗ Ḥanȋfah and later Mȃlik ibn Anas in Medina. Abȗ Ḥanȋfah’s refusal to take up the post of chief judge when offered by Caliph Mansûr is reported to have angered the latter to such an extent that he had Abȗ Ḥanȋfah imprisoned and later poisoned, leading to the eventual demise of Abȗ Ḥanȋfah.

Imam Mȃlik ibn Anas

Mȃlik was born in Medina in 717 CE, where he remained for almost the entirety of his life until his death within the city at the age of 83, in 801 CE. He and his followers are commonly known as Așḥȃb al-Ḥadȋth, due to his strict avoidance of speculative theology or hypothetical Fiqh, as was well-known amongst the Ḥanafȋs. His sources of Islamic law included the practices of the people of Medina as well as Istișlȃḥ, and his major and famous work, al-Muwaṭṭa’, remains a central document in Mȃlikȋ jurisprudence. Even though the political capital of the Muslim empire had already relocated to Damascus, Medina remained important to Muslims due to its strong ties to the Prophet Muhammad, and thus it thrived as a centre of spiritual enlightenment, education and learning during and beyond the lifetime of Mȃlik.

Most authentic Ḥadȋth scriptures (Sahih al-Bukhȃrȋ, Sahih Muslim, Abu Dawud, Tirmidhi, Al-Nisa’i, Ibn Majah).

Imam Al Shafie

Muhammad ibn Idrȋs al-Shȃfi’ȋ

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binding, even on matters about which the Qur’ȃn did not comment; an example of the view held by all the Madhȃhib consistently. However, when the Prophet’s activities or more specifically, those that have a bearing on the derivation of Islamic law are analysed, nuances begin to emerge. To clarify the point, examine the roles of the Prophet Muhammad as Messenger, Muftȋ, Judge (Qȃdi) and Head of State (Imȃm) (Randeree, 2009). These four roles all have a direct relevance to derivation of law, namely and respectively, verbatim communications from Allȃh (messenger role); issuance of fatwa (Muftȋ role); judicial rulings (role as Qȃdi); and discretionary rulings (the right of veto as Head of State). In terms of the Madhȃhib, the view of Mȃlik and al-Shȃfi’ȋ in this context was that the majority of the Prophet’s actions constituted Fatwa in his role as Muftȋ, whereas the view of Abȗ Ḥanȋfah was that his (the Prophet Muhammad’s) actions were decrees in his role as the Head of State. This difference appears immaterial, but upon closer examination, the resultant effect can yield very divergent outcomes in terms of the ruling that is passed (Jackson, 1993). The eponyms differed on aspects such as Ijtihȃd, Qiyȃs, ‘Urf and so on, but, even these differences seem largely based on emphasis rather than substance, though an extensive number of published works have deconstructed the differentiations over the past century. Melchert (2001) outlines the most important transformations of mainstream jurisprudence in the first three centuries of Islam. At the outset, rational speculation was overshadowed by the use of textual sources, namely, the Qur’ȃn and Ḥadȋth. 

Furthermore, Ḥadȋth reports from the Prophet took precedence over reports from Companions and the later authorities particularly within Sunni Islam, with Shi’i jurisprudence relying more evidently on reports from Imȃms. The reliance on Ḥadȋth texts quickly brought into light the issue of chains of narration (Isnad) and the personal qualities of Ḥadȋth transmitters (Rijȃl). Thus, information was filtered based on the reliability of transmitters as well as their frequency of narration, and other tools at the disposal of scholars for the discernment of Ḥadȋth.

The next stage was highly significant given the context of this paper, that is, personal

schools, such as the four schools of Islamic law, winning superiority over regional schools, such as the Kufan or Medinese schools. Thus jurisprudents were no longer identified as being from a geographical region or centre of learning, but rather by their allegiance to a founder or teacher of Islamic law. Hallaq (2001) expounds this topic to claim that, in fact, neither did geographic schools exist, nor did they transform to personal schools, but rather, the transformation was “from individual juristic doctrines to doctrinal schools.” This, again, is a challenge to Schacht’s work, whose major argument on the subject, in his book, An Introduction to Islamic Law, was that legal scholarship came together around geographical centres. Schacht, as cited by Hallaq

(2001: p. 2) says,

“The bulk of the ancient school of Kufa transformed itself into the school of the Ḥanafȋs, and the ancient school of Medina into the school of the Mȃlikȋs, and the ancient schools of Basra and of Mecca, respectively, became merged into them... This transformation of the ancient schools into personal schools ... was completed about the middle of the third century of the Hijra.”
Al-Shȃfi’ȋ was the best travelled of the four eponyms in his lifetime, a fact that has moulded and impacted the formation as well as the followers of his Madhhab. Al-Shȃfi’ȋ, was from Quraish, and a direct descendant of the Prophet Muhammad. He was born in 769 CE on the Mediterranean coast, he moved to Medina in his early life to study under Mȃlik, whose text, al-Muwaṭṭa’, Al-Shȃfi’ȋ memorised (Al-Baghdâdi, 1931, p. 59). After the death of the latter in 801 CE, he taught in Yemen for four years, was taken as a prisoner to Iraq (accused of Shi’i views), where he proved his
innocence to Hȃrȗn al-Rashȋd. He therefore remained in Iraq, where he studied under the Ḥanifȋ scholar, Muhammad ibn al-Ḥasan al-Shaybȃnȋ, before travelling to Egypt to study the Madhhab of al-Layth ibn Sa’d. He remained in Egypt until his death in 820 CE.
As a consequence of his travel and related studies, he effectively combined Ḥanafȋ and Mȃlikȋ jurisprudence. His three works, al-Hujjah, written in Iraq, articulating his early view, has become referred to as Madhhab al-Qadîm. His later work, al-Umm, written in Egypt and known as Madhhab al-Jadȋd, was, in contrast, the formation of his thoughts after absorbing the Madhhab of al-Layth, in which he reversed many of his earlier opinions. His most famous work, al-Risȃla, is well regarded, and is central to the establishment of Ușȗl al-Fiqh. His sources of Islamic law rejected both Istiḥsȃn and Istișlȃḥ, in favour of Istișḥȃb.

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This was followed by the establishment of core texts, which formed the foundation of literary knowledge for a few personal schools. Examples would include al-Muwaṭṭa’ of Mȃlik, al-Risȃla of al-Shȃfi’ȋ and the Musnad of Aḥmad ibn Ḥanbal.6 With this, the stage was set for Ḥadȋth studies and scholarship in jurisprudence becoming independent and distinct specialisations, with Muḥaddithȋn and Fuqahȃ’ becoming established prior to the development of Ușȗl al-Fiqh, as well as guild schools (which certified jurisprudents) appearing in the fifth and sixth centuries of Islam.

Another aspect to the founders of the four schools of thought is the pivotal role they played in the development of Islamic thought and jurisprudence. Al-Shȃfi’ȋ, for example, has long been credited with being the ‘Master Architect’ of Islamic jurisprudence. Contemporary scholars, however, are challenging this notion of prominence. Hallaq (1993), in his paper, “Was Al- Shȃfi’ȋ the Master Architect of Islamic Jurisprudence?” states that the leader of this view, in recent years, was Joseph Schacht, the author of “The Origins of Muhammadan Jurisprudence” published in 1975. Hallaq says,

“Such's portentous findings, coupled with the high esteem in which Shȃfi’ȋ is held in medieval and modern Islam, have led Islamicists to believe that Shȃfi’ȋ was the “father of Muslim jurisprudence” and the founder of the science of legal theory, properly called Ușȗl al-Fiqh.” (p.587)

He continues, “Shȃfi’ȋ’s synthesis was, and remained for a long time, a minority view. The traditionalists rejected his Qiyȃs, and the rationalists were reluctant to accept his thesis that revelation is the first and last judge of human affairs. It was only towards the end of the ninth century that the two camps drew closer to each other, and a synthesis of traditionalism and rationalism was accomplished.”

Independents to Eponyms

It is of value to understand, in the context of prominence and strict adherence to Sunni Madhȃhib, how these Madhȃhib were followed in the early centuries during their formation. One measure is to have an appreciation for Muslim jurists (Fuqahȃ’) during that period, as this provides insights as to the extent of followership commanded by the eponyms of the four main Madhȃhib. In their paper about the geographical distribution of 406 Fuqahȃ’ in the first four centuries of Islam, Bernards and Nawas (2003) found that 13% were Ḥanafȋs, 29% were Mȃlikȋs, 13% were Shȃfi’ȋs, 14% were Ḥanbalȋs, 5% were Switchers and 27% were Independents. Switchers are defined as Fuqahȃ’ who, during the course of their lives, switched from adherence to one Madhhab to adherence to another. Independents were those Fuqahȃ’ who did not adhere to any Madhhab. There sample size was based on biographical accounts collected for the Ulama Project, which was completed in 2000. The database thus consisted of 1,049 biographical accounts of Islamic scholars of the early centuries of Islam, within the five main disciplines of Islamic sciences. The 406 Fuqahȃ’ cited by Bernards and Nawas (2003) were those specialised.

Imam Ahmad bin Hambal

Aḥmad ibn Ḥanbal al- Shaybȃnȋ
Born in 778 CE in Baghdad, Ibn Ḥanbal studied, in his formative years, under Abȗ Yȗsuf (the famous Ḥanȋfȋ) and Al- Shȃfi’ȋ. Although he was persecuted and imprisoned at various points in his lifetime for some of his views, as were all his predecessor eponyms, Ibn Ḥanbal remained in Baghdad and taught until his death there in 855 CE. His extensive work, al-Musnad, which contains over 30,000 Ḥadȋth, remains a central manuscript underpinning the works of many of his followers, including Ibn Taymȋyyah and Ibn al-Qayyim. He is also reported to have taught both Bukhȃrȋ and Muslim, the authors of the two Șaḥȋḥs. In terms of his sources of Islamic law, he differed from the others by including weak Ḥadȋth in preference to Qiyȃs in his judgement and rulings, in circumstances where transmitters are known not to have been either degenerate (Fȃsiq) or liars (Kadhdhȃb). Today, the basis of the Kingdom of Saudi Arabia’s legal system is based primarily on Ibn Ḥanbal’s Madhhab.

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in Islamic law, thus establishing their relevance to the study of the background of the four

schools of Islamic law. Consequently, Bernards and Nawas (2003) found that, “For the entire 400-year period studied, the Mȃlikȋ Madhhab was the largest, followed by the “Independents”, those Fuqahȃ’ who were not claimed by any of the four Sunni Madhahib. The share of the other three Sunni Madhahib, the Ḥanafȋs, the Shȃfi’ȋs and the Ḥanbalȋs, was more or less equal. The phenomenon of switching from one Sunni Madhhab to another was marginal.”

Furthermore, the last eponym (Aḥmad ibn Ḥanbal) died in 241 AH; thus to focus examination on the first two and a half centuries, is of greater value. This, Bernards and Nawas (2003) reveal, demonstrates that 13% were Ḥanafȋs, 18% were Mȃlikȋs, 2% were Shȃfi’ȋs, 9% were Ḥanbalȋs, 5% were Switchers and 54% were Independents. In contrast, the following 150 years beyond the demise of the last eponym show that the figures changed dramatically, with 13% being Ḥanafȋs, 37% being Mȃlikȋs, 21% being Shȃfi’ȋs, 17% being Ḥanbalȋs, 5% being Switchers and 7% being Independents. Thus, as would be expected, proportionately most Independents disappeared in the duration of the first four centuries, with their proportions declining from 54% (0 - 250 AH) to 7% (250 - 400 AH). Consequently, large proportions of Fuqahȃ’, in the most part, migrated from being Independents to being Mȃlikȋs (18%; 0 - 250 AH to 37%; 250 - 400 AH), and Shȃfi’ȋs (2%; 0 - 250 AH to 21%; 250 - 400 AH).

The evaluation of the emergence and formation of the schools of Islamic law is further confounded by the classification of jurisprudence along rationalist (Așḥȃb al-Ra’y) or traditionalist (Așḥȃb al-Ḥadȋth) lines. Melchert (2001) states that as late as the fourth century, Ibn al-Nadȋm classified jurisprudents in eight distinct categories based on their allegiance to opinion or prophetic sayings. These were: 1) Mȃlikȋyȋn; 2) Abȗ Ḥanȋfah and his followers, the Iraqis or Așḥȃb al-Ra’y; 3) al-Shȃficȋ and his followers; 4) Dȃwȗd al-Zahȋrȋ and his followers; 5) Shi’i jurisprudents; 6) Traditionalists (Așḥȃb al-Ḥadȋth) and traditionalist-jurisprudents (al- Muḥaddithȋn); 7) al-Ṭabarȋ and his followers; and 8) Khȃrijȋ jurisprudents (Shurat). Only the first three of these classifications clearly demarcate one of the four Sunni schools of thought.

Ijtihȃd and Taqlȋd

During the seventh century CE, efforts were made to formalise the doctrine of the legal schools and, consequently, the aspect of Ijtihȃd and Taqlȋd began to emerge as one of the central themes within a discourse on the development of the Madhȃhib. In the beginning, the Qȃdi had complete freedom as a Mujtahid, to rule on issues that had no governance under revelation. As the Muslim nation expanded, this freedom began to be eroded and challenged in favour of more uniform regulations aimed at unifying the legal authorities and producing documents which could form the basis of a codification of laws. 

Fadel (1996) explores this issue with regard to theschool of Mȃlikȋ jurisprudence, stating that the school underwent a transformation from a case law system to one approaching civil law, with the only immunity being for upper-level jurists who retained the right to mitigate these canonical laws in special circumstances. The Mȃlikȋ School also effected abrogation to overcome contradiction when establishing these canons. Thus emerged the genre of the Mukhtașar, with two works in Mȃlikȋ law, the Jȃmic al-Ummahȃt by Ibn al-Ḥȃjib and the Mukhtașar Khalȋl in the seventh and eighth centuries respectively (Fadel, 1996). Two corresponding works were also important in Shȃfi’ȋ law, al-Ghaya al-Quswa fȋ Dirȃyȃt al-Fatwȃ, by Qȃdi al-Baydȃwȋ and the Minhaj of al-Nawawȋ, both of which were written in the seventh century.

Most references on the subject tend to indicate that Ijtihȃd had a higher intellectual standing than Taqlȋd. However, others challenge this view as it implies relegating Taqlȋd into being less desirable than Ijtihȃd. Fadel (1996), for example, cites Schacht, as being of the view that, over time, jurists had achieved near perfection of the law that Taqlȋd was a natural and inevitable

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 The view of Taqlȋd as a negative force, however, remains to the present day. In citing Hallaq (1986), Fadel (1996, p. 194) says, “Taqlȋd was more than a negative phenomenon – it was an apocalyptic sign of the end of religious knowledge and a harbinger of the final destruction of the Muslim community.”

A further aspect to the Taqlȋd / Ijtihȃd debate revolves around the extinction of Ijtihȃd in its entirety (Hallaq, 1984). Much has been published on the controversy, known as ‘Insidȃd Bȃb al- Ijtihȃd’, or ‘closing the gate of Ijtihȃd’. Schacht, Anderson and Gibb have all upheld that the gate of Ijtihȃd was indeed closed by the beginning of the fourth century. Schacht claims that this was out of a demand for Taqlȋd. In more recent times, the view that Ijtihȃd exists, and has consistently remained throughout Islamic history to the present day has become more pronounced. Hallaq (1984) cites its continuity based on the continuous developments in positive law and legal theory, which could not have occurred without Ijtihȃd. Furthermore, he cites individuals who were proponents and practitioners of Ijtihȃd beyond the fourth century. In particular, he states that Juwaynȋ, al-Ghazȃlȋ and Ibn cAqil were opponents of Taqlȋd as well as being Mujtahidȋn who were accepted as such by others well into the fifth century.

In relation to the formation and development of the schools of law, the Ḥanbalȋs in particular were proponents of the view that Mujtahidȋn have existed continually throughout Islamic history, whereas, in contrast, the Ḥanafȋs have contended that extinction was likely (Hallaq, 1986 pp.

129-130).

Conclusions

A number of key issues have been brought to light in this paper.

1. Discourse and disagreement about the first four centuries of Islam in relation to the
development of Islamic law has been steadily broadening over the past century, with a
number of disagreements of contemporary (past thirty years) scholars becoming more
pronounced. An example of this is the writings of Schacht in the early twentieth century
and the rebuttals by Hallaq in the later part of the same century.

2. The evolution of Islamic law meant that Taqlȋd seemingly was a natural progression, as
Islamic law slowly became more understood and the Islamic state became more
structured. Consequently, rigidity could play a greater role. However, the spread of
Islam and the exposure of existing Muslims to new cultures and environments, in
addition to people accepting the Islamic religion within these new environments, played
an important and growing role. Further to this, a greater number of prophetic traditions
were being published beyond the death of the eponyms, which meant that Ijtihȃd and
Qiyȃs based upon them had to play a greater role to accommodate the interplay between
geographical expansion and the emerging new knowledge.

3. The interrelationships between the eponyms were discussed and it can be clearly seen
that Taqlȋd was never the intent of their work. In fact, they seemingly learned from one
another as well as altered their views when new and overwhelming evidence was
presented to them. They also, very much lived in their place and time in history and
made judgements based on a level of pragmatism within the framework of Islamic
teachings.

4. Another key point is that many other Madhȃhib did exist. The dying out of these and

the remainder of only the four major schools of thought clearly needs further

investigation. Many Muslim commentators have argued that the survival of the four

major schools of thought was due to the personal sacrifice of the eponyms in their

lifetimes, standing up against the status quo or, in some cases, resisting the pressure of

the Caliph of their time to issue Fatȃwa in his favour, often resulting in torture and

imprisonment. This view requires more research in order to substantiate if indeed there

is a relationship between the schools’ enduring prominence and the personal sacrifice of

the eponym.

5. Finally, the shift from being independent to following an eponym, amongst the Fuqahȃ’
of the first four centuries as well as the migration from regional schools to personal
schools is of great interest, particularly when examining the stabilization of Islamic law.