Monday, August 18, 2008

Shari'ah: A Muslim's Declaration of Independence - Part 2

A Few Thoughts Concerning the Idea of Schools of Jurisprudence

Although there have been more than five madhhabs, or schools of jurisprudence, which have arisen over the last 1300 years, or so, five such schools are generally recognized today as constituting the major, mainstream approaches to issues of so-called Islamic law. These are the Hanifa, Maliki, Shafi‘i, Hanbali, and Jafari madhhabs.

The four surviving schools of Sunni jurisprudence were established during the early Abbasid era [the Abbasids had challenged the Umayyad rule on the basis that the latter was not Islamic enough in its form of governance]. The Umayyads came to power after the rule of the four righteous caliphs came to an end with the assassination of Hazrat ‘Ali [may Allah be pleased with him] around 40 A.H. [660 A.D.]

There is an essential, potential difference between the idea of Sacred Law in Islam and schools of jurisprudence which purport to give expression to the former. Oddly enough, this realm of difference revolves around the fact that Sacred Law does not necessarily have anything to do with theories of jurisprudence.

Generally speaking, jurisprudence is defined as a collection of rules that is imposed on a community or nation by someone who, legitimately or illegitimately, claims to have authority to impose such laws upon others. The collection of rules being alluded to here concerns the manner in which the public space or commons of a community or nation is to be regulated with respect to what people will and will not be permitted to do with, or in, that public space, as well as in relation to what rights and principles of justice the people of a given community are to be entitled, along with a specification of whatever duties and obligations are believed to accrue to different individuals under various circumstances.

Sacred Law – in the sense of that to which Divine revelation [such as the Qur’an] gives expression and in the sense of the operating principles through which Creation is manifested – is a function of the reality or truth of being and Being. To say that such and such aspect of life is a facet of Sacred Law is to make a claim concerning the order, nature, and purpose of that aspect of life in terms of the manner to which it allegedly gives expression to truth and the reality of things as ordained by God. Sacred Law is a function of the manner in which God has arranged Creation, including whatever degrees of freedom are inherent in the structural properties and principles of Creation, as well as in terms of the purposes for which Creation has been so arranged by Divinity.

As such, Sacred Law is not necessarily a legal system per se. For example, the physical principles that govern the manner in which the physical/material dimensions of Creation operate are not legal rules in the sense of statutory provisions that have been established for purposes of judging the conduct of the physical world and whether, or not, that conduct conforms to, or deviates from, the established statutory provisions in question.

Physical principles give expression to the reality or truth of their nature by manifesting God’s truth concerning their modes of being. By acting in accordance with their essential nature – that is, the properties and qualities which constitute the reality of that which God has ordained them to be -- physical principles are manifestations of Sacred Law. Sacred Law is simply the way things operate in relation to that facet of created existence or being.

The law of gravity does not refer to a legal set of rules. When one fails to exercise due diligence in relation to such a law, one has not violated a legal rule, but, rather, one has failed to take into consideration the way reality operates within certain circumstances, and, as a result, one must suffer whatever consequences ensue from such a failure.

The reality of gravity is an expression of Sacred Law. Every aspect of Creation is a manifestation of Sacred Law.

Human beings are also governed by Sacred Law. Such Sacred Law concerns the potentials, capacities, faculties, qualities, and possibilities which are inherent in the human form – a form which ranges from: physical, mental, and emotional properties, to: spiritual qualities.

Once again, as was the case with gravity, such Sacred Law is not necessarily a matter of determining what statutory injunctions apply to human potential and behavior. Moreover, as was the case with gravity, such Sacred law becomes a matter of trying to understand the reality or truth with respect to the manner in which some given dimension of existence operates – in this case, human beings.

To whatever extent a given school of jurisprudence does not reflect the totality of the Sacred Law concerning the nature of how a given aspect of existence gives expression to the Sacred Law, then, to that extent such an approach to jurisprudence tends to introduce errors and problems into a person’s understanding of Sacred Law. Therefore, one issue which arises when attempting to ascertain the relationship, if any, between a given school of jurisprudence and the Sacred Law becomes a matter of seeking to establish or adjudge the degree of accuracy contained in a given perspective of jurisprudence with respect to the capacity of the latter to be able to reflect the truth of the reality of some dimension or dimensions of Sacred Law in relation to human beings.

Schools of jurisprudence give expression to a set of methodologies which proponents contend will permit an individual to ascertain the nature of Sacred Law in any given set of circumstances involving human beings. Such schools of jurisprudence use the aforementioned methodologies to construct hypotheses which are said to be able to capture the governing principles of Sacred Law which an advocate of the school believes are at work in a given set of circumstances and, thereby, permit an individual to come to understand how to engage those circumstances in a manner which is consonant with Sacred Law.

In order to be able to generate a context for beginning to explore the relationship, if any, between the idea of a school of jurisprudence and the Sacred Law of God, it may be of value to briefly take a look at some of the ideas entailed by some of the different madhhabs or schools of jurisprudence. This discussion is not intended to be exhaustive but, rather, is merely intended to provide some food for thought before proceeding on in other ways.


Abu Hanifa al-Nu‘man ibn Thabit [80 AH/699 A.D. – 150 AH/767 A.D.] is credited by some as being among the first to put forth some of the working methods for engaging Sacred Law in order to try to understand the nature of one’s relationship to Sacred Law [a process which is now referred to – and, in fact, has been referred to in such terms for some time -- as a madhhab or school of jurisprudence]. Interestingly enough, there are a number of incidents which transpired during the lifetime of Abu Hanifa which give rise to some important questions concerning how one might approach the issue of understanding and applying that understanding to matters governed by Sacred Law.

More specifically, at one point in his life, Abu Hanifa had decided to turn down an offer to serve as chief judge – an offer which had been extended to him by Marwan ibn Muhammad, an Umawi caliph. As a result of this rejection, Abu Hanifa received a public punishment consisting of 110 lashes.

The reason which Abu Hanifa gave with respect to his refusal to serve as chief judge is relatively simple and straightforward. He did not want to be in a position where he would be required to pass legal judgment on other individuals.

When the ‘Abbasis overthrew the opposing Umawi caliphate in 132 AH, a new caliph – Abu Jafar al-Mansur [died in AH 158] – came to power. The new caliph wanted Abu Hanifa to be in charge of judicial proceedings in Baghdad.

Once again, Abu Hanifa declined an invitation that was being extended to him which would have required him to assume responsibility with respect to making judgments concerning others in relation to legal issues. Once again, he was punished – this time with imprisonment – and he remained in prison until he passed away in 150 AH.

Abu Hanifa believed in the importance of seeking to arrive at determinations concerning what the nature of Sacred Law may have been in a given set of circumstances. However, he apparently did not believe in the appropriateness of using such determinations to pass legal judgments on others.

Consequently, very early on in Muslim history we encounter a situation in which someone who is cited as being, in a sense, the founder of a school of jurisprudence did not believe that determinations involving the Sacred Law were necessarily a matter of jurisprudence. Instead, the individuals who were seeking to use Sacred Law as a system of jurisprudence were certain leaders who were attempting to impose a particular kind of authority and control over other human beings and using the Sacred Law as justification for what they were attempting to do in those respects.

One of the methods which Abu Hanifa emphasized in his approach to engaging issues of Sacred Law involved shura or consultation with others. Oftentimes, he would present a problem, case, or question concerning Sacred Law and, then, encourage his students to discuss the matter with one another while they analyzed and reflected on the challenge before them. Over a period of time – and this might last for a number of weeks – the group finally would reach a decision concerning the issue in question, and this would be a reflection of all that had gone into the process of consultation.

However, Abu Hanifa once counseled his students by saying: “Anyone who utters a fatwa based on my sayings is only permitted to do so if that individual knows what I used as proof [dalil].” The fatwa being referred to here was not a legal obligation incumbent on all who heard it, but, rather it was a pronouncement about a spiritual determination which had been reached concerning what Abu Hanifa believed was the nature of Sacred Law in a given set of circumstances.

For Abu Hanifa, truly knowing the roots of the proof of something is not at all the same thing as being able to read an account concerning that same something. Proof is in the experiential heart-knowledge and understanding of the hukm -- or the authoritative and governing spiritual principle(s) -- of whatever aspect of Sacred Law that was being explored.

Unless someone understood a given matter in the same way as Abu Hanifa did, then that individual would not understand the nature of the proof upon which Abu Hanifa rested his determination. If one lacked such an understanding, then Abu Hanifa did not want an individual to blindly make a fatwa or pronouncement concerning something which the individual did not properly understand and, then, merely use the name of Abu Hanifa as justification for what was being said.

To the extent that a true ‘proof’ existed concerning the matter at hand, the authority was not Abu Hanifa. Rather, the authority was in the extent to which a given ‘proof’ reflected a truth concerning the nature of Sacred Law in a given set of circumstances.

The fact that Abu Hanifa offered a proof in a given case does not necessarily mean that the issue for which a proof was being provided was correctly or fully understood by him, any more than it necessarily follows that because a ‘proof’ is offered by any given individual, then, therefore, such a ‘proof’ must be correct. Be this as it may, at this point I am far less concerned with whether Abu Hanifa was right or wrong with respect to the ‘proofs’ offered in this or that instance than I am concerned with some of the methodological considerations which appear to have shaped certain features of his perspective.

The features which seem to stand out for me in this respect are two in number. The first methodological principle involves the manner in which Abu Hanifa seemed to be disinclined to use the process of seeking spiritual determinations concerning Sacred Law as a basis for passing judgment on others in any sense which carried legal ramifications. A second methodological principle revolves around the importance of acquiring an understanding of, and insight into, the precise nature of a ‘proof’ which is being offered in conjunction with some given spiritual determination concerning the Sacred Law – blind adherence to such a determination or citing someone’s name as the authority for such a determination is not enough.


Malik ibn Anas, a second name with which a major school of jurisprudence or madhhab is associated, was believed to have been born somewhere between 90 AH and 97 AH. He died in 179 AH [796 AD].

Apparently, Malik ibn Anas did not leave any explanation concerning the specific methodology which he used for making a determination or judgment concerning the Sacred Law in any particular case. His students indicated that he used a variety of tools through which he sought to assess a given problem, issue, or question concerning what he believed to be the operative aspect of Sacred law in any particular case. These tools included: the Qur’an, the sunna of the Prophet Muhammad (peace be upon him), the practices [or amal] of the people of Medina, a form of analogical reasoning, as well as considerations of public interest [that is, maslaha] and various kinds of custom.

Of course, all of the major madhhabs considered the Qur’an, along with the sunna of the Prophet, to constitute two essential sources to be utilized in seeking determinations concerning the way Sacred Law might be related to a given set of circumstances. However, citing these two sources as having central importance to any process of spiritual deliberation is one thing and demonstrating that the manner in which one understands and applies those sources is another matter altogether.

Malik was not only very much aware of the foregoing difference, but he also realized that there could be more than one way of utilizing the Qur’an and the sunna to arrive at a spiritual determination in any given instance. For this reason, Malik sought to indicate to the ‘Abbasi Caliphs that his approach to attempting to understand the nature of the Sacred Law in any particular case should not be the only methodology considered when trying to solve a problem or resolve a conflict.

Once again – as was also the case in relation to the previous discussion involving Abu Hanifa -- I am not as much interested in the specific determinations which Malik may have reached in any particular case as I am interested in a certain dimension of his general approach to the process of trying to understand the nature of the Sacred Law. To this end, one of the most important themes which I see being given expression through his approach to such matters is his willingness to acknowledge that there could be more than one way to pursue Sacred Law, and, as such, there should be no one “official” position concerning how to go about trying to understand the nature of Sacred Law.

Malik was not attempting to establish a systematic and definitive legal code with respect to the nature of Sacred Law. Rather, he was trying to provide food for thought which might be reflected upon by others in relation to various problems, questions, and issues.


Ahmad ibn Hanbal, a third name with which a major school of jurisprudence is associated, lived from 164 AH to 241 AH -- that is, 780 A.D. to 855 A.D.. Like Malik before him, ibn Hanbal also sought to dissuade others from attempting to systematize the latter’s modes of thinking about various matters concerning the nature of Sacred Law.

He was opposed to the idea of codifying shari‘ah. In fact, ibn Hanbal’s teachings often can be understood as a reaction against the tendencies to codify matters of shari‘ah that had been emerging not only during his lifetime but in earlier times, as well.

For instance, Ibn Hanbal was strenuously opposed to the practice of taqlid – that is, blind obedience – which was beginning to become commonplace during his lifetime. Consequently, as one means of countering this tendency toward blind obedience, he instructed his students that none of his deliberations and determinations concerning any particular case should be written down.

For ibn Hanbal, the Qur’an and the sunna were the preeminent authorities in all efforts of spiritual deliberations. In fact, he was inclined to give preference to a weak Hadith rather than use some form of analogical reasoning in order to reach a spiritual determination concerning the Sacred Law in a given set of circumstances.

On the other hand, sometimes ibn Hanbal would encounter issues in which neither the Qur’an nor the sunna seemed to provide a solution in conjunction with a problem or question that was being considered. On such occasions, ibn Hanbal might use analogical reasoning as a tool of last resort.

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