Voices of Islam (35 page)

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Voices of Tradition

in which the jurist may give a different ruling than that of the ‘‘predecessors’’ of the school.

The Maliki school was founded by Malik ibn Anas (d. 795
CE
), who led the Traditionist (
Ahl al-Hadith
) movement in Mecca and Medina and advocated the notion of the ‘‘Medina consensus’’ (
ijma‘ ahl al-Madina
) as the only authoritative form of consensus. His renowned work
al-Muwatta
(The Straight Path) is the earliest complete work of
fiqh
on record. It relies heavily on Hadith—so much so in fact that many have considered it a work of Hadith rather than a work of
fiqh.
Notwithstanding his leading position in the Tradi- tionist camp, Imam Malik relied extensively on personal opinion (
ra’y
). Two of his important doctrines, public interest (
istislah
or
maslaha
) and blocking the means to mischief (
sadd al-dhara‘i
), are rationalistic in their logic and rely mainly on the exercise of personal judgment. Maliki jurisprudence also attempted to forge a closer link with the practicalities of life in Medina and attached a greater weight to social custom. This is borne out by its recogni- tion of the Medina consensus as a source of law and validation. On this basis, for example, Malik allowed the testimony of children in cases of injury between themselves, provided they had not left the scene of the incident. He also held that the wife of a missing person can seek a judicial separation after a waiting period of four years.

Maliki law also recognized judicial divorce on the ground of injurious treatment of the wife by her husband. The majority ruling on this entitles the wife to judicial recompense, whereby the court may punish the offending husband. Maliki law ruled that if the treatment in question amounted to injury, the wife may request the court for a dissolution of the marriage on that basis. Another Maliki contribution in this area is in respect of
khul’,
a type of divorce in which the wife proposes dissolution of her marriage against a financial consideration, usually by returning the dower she received from her husband. Because this type of divorce is recognized by the Qur’an (2:229), it is allowed by all the schools, but in most cases, it can be finalized only with the husband’s consent. Maliki law took the matter a step further in favor of the wife by ruling that in the event of irreconcilable differences, the court may finalize a
khul’
divorce, even without the consent of the hus- band. For this and other reasons, the Maliki law of divorce has been adopted in the reformist legislation of many Muslim countries in the latter part of the twentieth century. Maliki law is currently predominant in Morocco, Algeria, Tunisia, Upper Egypt, Sudan, Bahrain, and Kuwait.

Muhammad ibn Idris al-Shafi‘i (d. 820
CE
), the founder of the Shafi i school of Islamic jurisprudence, was a student of Malik ibn Anas and a lead- ing figure in the Traditionist camp, but later he tried to strike a middle course between the Traditionists and the Rationalists. Shafi‘i’s impact on the devel- opment of the Shari‘a is most noticeable in the area of methodology of the sources of law, which is outlined in his pioneering work, the
Risala.
Shafi‘i’s role in articulating the methodology of jurisprudence has often been

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Law as the Way of God
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compared to that of Aristotle in logic. He maintained that the Sunna was a logical extension of the Qur’an and vindicated the exclusive authority of the Prophetic Sunna as a source of Shari‘a next to the Qur’an. He came close to saying that rejecting the Sunna also amounted to rejecting the Qur’an and that accepting one and rejecting the other was untenable. He took his teacher, Imam Malik, to task for placing undue emphasis on the Medina con- sensus and the precedent of the Companions at the expense of the Sunna of the Prophet.

Shafi takes an intermediate position between the Traditionist stance of the Maliki school and the pragmatism of the Hanafis. He was critical of Imam Malik’s validation of public interest and of Abu Hanifa’s frequent concession to details at the expense of general principles. Shafi‘i’s approach to the valid- ity of contracts was almost entirely based on the form rather than the intent of a transaction. He thus overruled enquiry into the motives of parties to a contract or a sale, even in circumstances that might arouse suspicion. Under Shafi‘i law, a man is within his rights to buy a sword even if he intends to kill an innocent person with it. A man may likewise buy a sword from someone he saw using it as a murder weapon. Transactions are to be judged by their conformity to the formal rules of law, not by the suspicion that the intent of a transaction is to violate the law. This reliance on the manifest form of contracts and other transactions is not peculiar to Shafi‘i, as the Hanafis have also shown the same tendency, but Shafi‘i exhibited it more frequently than most.

Shafi‘i maintained that a
mujtahid
should not hesitate to change a previous ruling (
fatwa
) if this would make a better contribution to the quest for truth. Thus, he frequently changed his own previous verdicts, and sometimes recorded different rulings on the same issue. For example, if a man deceives a woman he marries by claiming a false family pedigree, he is liable to punish- ment. Shafi‘i has two separate views on this subject, but neither is given pref- erence over the other. The fi view entitles the wife to choose to either continue the marriage or separate. The second view rules that the marriage is void. The Shafi school is now prevalent in Indonesia, Malaysia, Brunei, Lower Egypt, Southern Arabia, and East Africa, and has many followers in Palestine, Jordan, and Syria. Muslim minorities in Thailand, the Philippines, and Singapore also follow Shafi‘i jurisprudence.

The Hanbali school was created by the followers of Ahmad Ibn Hanbal (d. 859
CE
), who led the Traditionist movement in Baghdad. This school of jurisprudence marked a reassertion of the high profi e of Hadith as source of the Shari‘a. Despite the common perception of the Hanbali school as the most restrictive of all the schools, Hanbali jurisprudence is in some respects more liberal than most. This is indicated by its extensive reliance on consider- ations of public interest (
istislah
). Ibn Hanbal issued a ruling, for example, that permitted compelling the owner of a large house to give shelter to the homeless. He also validated compelling workers and craftsmen who go on

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strike in consideration of fair wages so as to avoid inflicting hardship on the public.

Hanbali jurisprudence also takes a more open view of the basic freedom of contract compared to the other schools. The legal schools differ as to whether the norm in contract law is permissibility (to allow certain behaviors) or prohibition (to restrict certain behaviors), or an intermediate position between the two. Most schools of Islamic jurisprudence tend to be restric- tive, maintaining that the agreement of two parties creates a contract but that the requirements and consequences of the contract are independently deter- mined by the Shari‘a, not by the parties that drew up the contract. In this view, the parties to a contract do not create law but only a specific contract; their stipulations and terms of agreement should therefore be in conformity with the Shari‘a. The parties are not at liberty to interpret the terms of a con- tract in a way that would violate the purpose of contracts under the Shari‘a. The Hanbalis maintain, however, that the normative position regarding con- tracts is permissibility (
ibaha
), which prevails in the absence of a clear prohibition in the Shari‘a. They reason that the Qur’an has only laid down the general principles that contracts must be fulfi led (Qur’an 5:1) and be based on mutual consent (Qur’an 4:19). Since God, as Lawgiver, has not specified any requirements other than consent, consent alone is the validating factor that creates binding rights and obligations.

The principle of permissibility under Hanbali law can also form the basis of a unilateral stipulation (
iltizam
). This means that the individual is free to commit oneself to any lawful form of agreement in all situations in which the concept of permissibility applies. Thus, a man may stipulate in a contract of marriage that he will not marry a second woman, even though marrying up to four women is allowed in the Qur’an. Since polygyny is not required but is only permissible under the Shari‘a, a man is free to make monogamy the sub- ject of a stipulation. The other schools disagree with this view, reasoning that what is allowed by the Shari‘a cannot not be circumvented or nullifi through contractual stipulations. Ibn Hanbal ruled that the stipulations of a marriage contract must be strictly enforced. Consequently, when one of the spouses fails to comply with the terms of the marriage agreement, the other is entitled to seek annulment of the contract. Hanbali jurisprudence is pre- dominant in Saudi Arabia, Qatar, and Oman, and has followers in Egypt and Syria. The public interest provisions of Hanbali jurisprudence and its stress on the precedent of the Prophet Muhammad have also made it popular among Muslim reformers, particularly in the Arab world.

In Sunni law, the head of state is elected to office, but Shiite law maintains that leadership,
imama,
descends in the household of the Prophet through hereditary succession. Of the numerous Shiite schools, only three have sur- vived to the present day: the Ja‘fari school of the Ithna ‘Ashari (Twelver) Shi- ites, the Zaydi school, and the Ismaili school. Shiites differ mainly over the line of succession after the fourth Imam. The Twelver Shiites, the largest of

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the three groups, recognize 12 Imams, hence their name, as opposed to the Ismailiyya, who are also called Sab‘iyya (Seveners), as they focus on the first seven Imams. According to Twelver dogma, the twelfth Imam Muhammad al-Mahdi, the Imam of the Age, who disappeared in 873
CE
, will reappear to establish justice on earth.

For the Sunnis, divine revelation, manifested in the Qur’an and the Sunna, ceased with the death of the Prophet Muhammad. For the Shi‘a, however, divine inspiration continued to be transmitted after the death of the Prophet, to the line of their recognized Imams. Accordingly, they maintain that in addition to the Qur’an and the Sunna, the pronouncements of their Imams, whom they believe to be infallible, constitute divine inspiration and therefore binding law. The Shi‘a, moreover, accept only those traditions whose chain of authority goes back to one of their recognized Imams: they also have their own Hadith collections. Since the Imam is divinely inspired, the Shi‘a do not recognize the validity of juridical consensus (
ijma‘
) if the Imam is present. Shiite law, which mainly originates in the teaching of the sixth Imam, Ja‘far al-Sadiq (d. 765
CE
), is somewhat similar to Shafi‘i law but differs from it on certain issues. Temporary marriage (
mut‘a
), for example, is valid only in Shi- ite law. The Shiite law of inheritance is also different from the law of the Sunni schools. Twelver doctrine was officially adopted in Iran under the Safa- vids in 1501
CE
; it still commands the largest following in Iran, and it also has followers in Iraq, Lebanon, and Syria.

According to the Ismaili doctrine, the esoteric meaning of the Qur’an and its allegorical interpretation are known only to the Imam, whose knowledge and guidance is indispensable to salvation. The Ismailis are divided into two groups, Nizari and Musta‘ali. The Nizaris are centered in India, Pakistan, Central Asia, and Syria, and their leader is the present Aga Khan, 49th Imam in the line of succession. The Musta‘ali Ismailis believe that the 21st Imam became hidden. This group resides in southern Arabia and India.

The Zaydi Shi‘a follow Zayd ibn ‘Ali, the fi h Imam in the order of the Shiite Imams. They endorse the legitimacy of the first three caliphs who pre- ceded the Prophet’s cousin and son-in-law ‘Ali (d. 661
CE
) on the belief that an acceptable leader has a legitimate title notwithstanding the existence of a superior claimant. Their legal doctrine is the nearest of the Shiite schools to the Sunnis, and they mainly reside in Yemen.

SALIENT FEATURES OF THE SHARI‘A

This section draws attention to some of the characteristic features of the Shari‘a, such as its identity as a religious law, its tendency to balance continu- ity and change, its support for rationality, and its gradualist approach to social reform. The Shari‘a also advocates the moral autonomy of the individual and seeks to balance its individualist and communitarian orientations in the for- mulation of its laws.

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Religious and Moral Aspects

Because Islamic law originates in divine revelation, it is an integral part of the religion. This implies that adherence to its rules is at once a legal and a religious duty for Muslims. The concepts of permissible and prohibited (
halal
and
haram
), for example, are both religious and legal categories and involve duties toward God and fellow human beings. Although the legal and religious aspects of the Shari‘a tend to reinforce one another overall, there is an equally signifi but often neglected aspect to the Shari‘a, which is civil and positive in character. This is the area of command and prohibition (
ahkam
), which guides court decisions and government practices. Judges do not issue judgments on religious considerations alone. A distinction is drawn between the religious and legal aspects of Shari‘a obligations. For example, if a debt is not paid by a debtor and then some property of the debtor comes into the creditor’s possession, the moral teachings of the religion would entitle the creditor to take the equivalent of what is due to him without the debtor’s permission. However, if the matter is brought before a court, the creditor will not be allowed to take anything unless he proves his claim through normal methods. Consider also a case in which the creditor has waived the debt by way of charity to the debtor without actually informing him of this, and later he changes his mind and sues the debtor for his claim. In this case, the creditor is entitled to receive payment judicially because the debt was not offi lly forgiven. However, on moral grounds the creditor would not be able to make such a claim, since an act of charity, even if it is done in secret, may not be revoked.