Schools of Muslim Law- History, Their Difference, Practice Obtainable

 

 

 

ABSTRACT

 

Muslim law is the personal law of the members of the Islamic Religion. There are two schools of Muslim Law.

 

In this article we shall be considering these schools of Muslim law. Our discussion shall flow in the following order:

 

1. Introduction
2. Emergence of Schools of Muslim Law
3. Discussion on the schools of Muslim Law
4. Practices obtainable in the schools of Muslim Law
5. Conclusion

 

INTRODUCTION

 

There are two major schools of  Muslim law. They are:

 

1. Sunni School
2. Shia School

 

However,  a third school,  which is a minority sect exists.  This school is the Motazila Sect/School of Muslim law.

 

These schools have greatly impacted the development of Muslim law, as it is known today. In order to appreciate Muslim law, there is need to have a basic history or knowledge on the two major schools of Muslim law. This is the aim of this article.

 

EMERGENCE OF SCHOOLS OF MUSLIM LAW

 

The death of Prophet Mohammed led to a chaotic situation in the spiritual leadership of the religion. Members of the Muslim religion were not in agreement as to who was to succeed as the Immamat i.e. the spiritual leader of the Islam religion. The major dispute arose in the formula to be used in choosing the Immamat.

 

The majority sect was of the view that the Jammat should be followed and the principle of election in the Jammat was the appropriate formula. This particular suggestion was spearheaded by the Prophet’s wife, Ayesha Begum. She was the youngest wife of Prophet Mohammed. This sect also wanted to use the election process to elect their own Imam. The minority sect, headed by Fatima, the daughter of the Prophet, wanted to appoint a successor from Prophet Mohammed’s family, as the new Immamat

 

The new spiritual leader was elected in line with the view of the majority sect. Abu Bakr, the father of Ayesha Begum, became the appointed leader and the first Caliph. Himself and his supporters formed the Sunni school and he became the Imam of the Sunni Muslims. The minority sect formed the Shia school. Fatima’s husband, Ali, who was also the cousin of Prophet Mohammed, was nominated as the Imam of the Shia Muslims.

 

Discussions on the Schools

 

• Sunni School

 

The Sunni is further divided into four sub-schools made up of the:

1. Hanafi
2. Malaki

• Shafei

1. Hanbali

 

The sub-divisions in the Sunni school were formed by certain Imams or Mujtahids, who were also jurists. These jurists were learned in law.

 

• Hanifi School:

 

• Abu Hanifa, an eminent scholar and Jurists, founded this school. It is the most popular school in Muslim law.
• In making deductions, he always resorted to the texts of the Quaran to find the law, rather than basing his decisions on traditional law.
• Where he could not find the law in the Quran, he obtained the unanimous opinions or decisions of other jurists.
• The sources of law recognized in this school are:

1. Quaran (which is the primary source of law)
2. Ijma

• Istehsam (juristic preference)

1. Customs and usages

• Hanifa’smajor tenets, which are the tenets of this school are that

1. Texts of the Quaran provide the law
2. Where a tradition did not pass the test of authenticity or originality, they cannot be accepted as law.
3. Justice could only be done under the law or through the principles of equity (Ijmaa and Istehsam)
4. Text should not be given a literal interpretation which will eliminate all logic.
5. Logic and private judgment should thrive.

• The Hanifi school is prevalent in India.

 

Malikis School:

 

• It was founded by Malik Iba Annas. He was a jurist.
• It has no prevalence in India; no part of India embraces this school
• The sources of law under this school are:

1. Customs; emphasis is placed on the importance of traditional laws as a source of law
2. Ijma; but to a limited extent – like the Ijma of the Medina

• Istidlal (The Malik’s principle of public welfare)
• Under this school, a woman and her properties are subject to the control of the woman’s husband. Without her husband’s consent she cannot deal with her property.

 

Shafei School

 

• It was founded by Ash Shafei, an eminent scholar of Islamic jurisprudence.
• The sources of law under this school are:
• Traditional law. However, they have a more logical approach to that of the Malikis. They aim to achieve a balanced system of the rule of law.
• They rely on the direct text or analogies deducted from the texts
• Traditions of Prophet Mohammed
• Qiyas
• Ijma
• Customs
• Recognize the Istaddlal (The Malik’s principle of public welfare)
• They do not accept the Principle of Juristic equity (Istihsan) propounded under the Hanifa’s school.
• Under this school, a woman is subject to obtain the consent of her guardian (her husband).
• Followers of this school can be found in the Western Coast of India.

 

Hanbali School

 

• It was founded by Ibn Hanbal, who was a student of Ash Shafei.
• The sources of law believed by Ibn and members of this school are:

1. Traditions of the Prophet (primary source)

• He neglected the Qiyas and Ijma. Only the Ijma of the Prophet’s companions are recognized under this school.
• This school does not allow human reasoning and private judgments
• Their principles are very rigid.
• This school has no following in India. A few Muslims follow it and they are found mostly in Saudi-Arabia and Qatar.

 

• Shia School

 

It is subdivided into three schools

1. Imamia (Ithna Asharia School)
2. Ismailia

• Zaidia

 

Imamia (Ithna Asharia School)

 

• They believe that Ali, and the twelve succeeding Imams after him, possessed spiritual powers.
• Thus, whatever the Imam says or does becomes law.
• The source of law recognized by them is the traditions of Imams.
• They recognize ‘Muta’ which means ‘temporary marriage’
• Within this school, two sects exists which are
• Akhbari – who rigidly follow the traditions of Imam
• Usuli – who give practical interpretation to the Quaran
• This school is prevalent in India, Iraq, Lebanon, Pakistan and Iran.

 

Ismailia School

• They believe that the imams who came after Ismail (the eldest son of Jafar Sadiq, who was disinherited by his father, and who was not generally accepted as the seventh Imam of the Shia Muslims) are alive although they have decided to conceal their existence.
• Khojas and the Bohras form the two main groups of the Ismailia school in India.
• Daimul-Islam is the work on the doctrines of Ismailia.

 

Zyadis School

• It was founded by Zyad, a son of the fourth Shia Imam.
• Some of Sunni’s doctrines and principles are incorporated in this school.
• They do not have any following in India.
• Their following is in Yemen.

 

• The Motazila Sect/School

 

• They are a lesser sect to the Sunni and Shia Muslims
• It is believed that they defected from the Shia Muslims.
• The Quaran is the only source of law for them, and they have given a number of juridical interpretations to the texts of the Quaran.
• Majority of the traditional laws have been rejected by this sect.
• They recognize and practice Monogamy, strictly.

 

The Practices obtainable in the Schools

 

Sunni School

 

• A male Sunni Muslim is entitled to marry a pagan i.e. idolatress, a female who worships fire. Such a marriage is not improper. It is believed that the male’s marriage to the female pagan can be regularized because the female will be forced to embrace Islam.
• A female Sunni Muslim attains puberty once she is 15 years.
• For a proper Sunni Marriage, there must be witnesses to the marriage.
• Muta marriage i.e. temporary marriage, is a void marriage for the Sunni Muslim. The school does not recognize it.
• A male Sunni can easily divorce his wife by merely pronouncing that he divorces her. He does so in her presenc Even where there are no witnesses, the divorce is valid. The divorce is also valid even if he has no intention or reason for making the pronouncement.
• If a person makes a will after trying to commit suicide or taking poison, such a will is valid.
• The school recognizes bequest made in favour of an unborn child, as long as the child is born within six months from the day the will was made.
• However, a bequest to an heir is only valid if other heirs give their consent to it after the testator has died.
• Under this school, a murderer cannot be a benefactor of the person he murdered. Even if a bequest was made in his favour by the deceased, such bequest becomes invalid.
• A gift made in one’s favour can be revoked at any time, even if possession of the gift had already been delivered. However, there are exceptions.
• The rule of primogeniture and the principle of representation in inheritance are not recognized in Sunni law.

 

Shia School

 

• A male Shia Muslim cannot marry a non-Muslim; neither can a female Muslim marry a non-Muslim. Such marriage is invalid.
• A female Shia Muslim attains puberty between 13 – 14 years.
• For a proper Shia marriage, there must be witnesses to the marriage.
• Muta marriage i.e. temporary marriage, is a void marriage for the Shia The school does not recognize it.
• A male Shia Muslim can easily divorce his wife by merely pronouncing that he divorces her in her presence, but there must be The divorce is valid only when the husband can state his intention for the divorce. And he must not be intoxicated when pronouncing the divorce, if not it will be invalid.
• If a person makes a will after trying to commit suicide or taking poison, such a will is in
• The school recognizes bequest made in favour of an unborn child, and it remains valid even if the child is born after six months from the day the will was made.
• If a father bequest one-third of property to an heir it is The consent of the other heirs is not needed.
• Under this school, a murderer can only be a benefactor of the person he killed if the death was due to an accident and not an intentional conduct.
• A gift made in one’s favour can be revoked at any time, with no exceptions.
• A son inherits his father’s Quaran, ring, wearing apparel and sword.
• The principle of representation in inheritance is recognized in Shia

 

CONCLUSION

 

There are two major schools of Muslim law. But there is a third school which is minority sect The sub schools under these major schools of Muslim law have their basic tenets and sources of Muslim law.