8. Schools of Islamic Criminal Law

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After the death of the Prophet Mohammed in 632 A.D. a dispute arose within the Muslim community over the question who would be the successor to the Prophet. Muhammad had not named anyone which caused a serious struggle of power between several would-be successors that all claimed 106 rightful authority in the name of Allah. Immediately after the death of the Prophet, Abu Baker, the father in law of the prophet was elected as the first Caliph by some of the followers of the Prophet. This election of Abu Baker divided the Muslim community into two groups that each had divergent views on the issue. As a consequence, the Shies and the Sunnis emerged as two rivalling branches of Islam. Besides those two major groups some minor ones appeared but are often seen as branches of the Shia.

Altogether six different sections of Islamic faith came into existence. The Sunni community is the largest one and includes approximately 85% of the entire Muslim community, followed by the Shia that represents around 10%. The remaining four groups are dogmatically close to the Shia School and represent the other 5 %: Muotazalah, Kahwarag, Zaydiyah, Jafariah, and Zahiris

The existence of a heterogeneous Muslim world as a result of the split up after the Prophet’s death also translates into the foundation of different Law Schools. But this was not an immediate consequence since those only began to flourish in the century following the arrival of Islam. Originally, no real Islamic Law School but rather a type of legal thought or a certain approach to legal matters had emerged that is usually referred to as madh-hab (school of fiqh). Legal judgement was passed out by representatives of the rulers but often did not meet the agreement of religious authorities of early Islam. Theology and jurisprudence did not form yet an indissoluble alliance.

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With the emergence of the Abbasids rule, the situation changed. They came into power after the Umayyad rulers (661-750 CE) were overthrown. In comparison to the Umayyad, the new power holders were more supportive of a true Islamic law and aimed at reconciling jurists and theological representatives of the Islam. As a result, the first real Law Schools emerged as we know it today. They succeeded in systemizing Islamic law and purifying the traditions of false components. The about twenty different “facets” of speaking and exercising Law that could be summarized as Madh-hab finally gave way to four major Sunni Schools of Law.

The four Sunni Schools (Schools of Fiqh) of thought (the four Madhahib) are: the Hanafi, Maliki, Shafi’i, and Hanbali. With regard to legal matters, these four orthodox schools emphasize the various sources of Islamic Law – the Koran, Hadith, Consensus of legal scholars and Analogy – differently and accord different weight to each of them. Therein lays the fundamental disagreement between the four. They compile their own corpus of legal doctrine but nevertheless recognize each other because there is a similarity between them in broad precepts. Differences on particular points occur on the ground of the absence of clear guidelines from the Koran and the Sunna.107

The first two schools, Hanafi and Maliki, were founded towards the end of the first century of Islam by Imam Abu Hanifa in Kufa (Iraq) and Imam Malik in Medina. The Kufans, followed a few years later by the Medinese, ascribed their new doctrines back to earlier jurists within their respective school: “By a literary convention, which found particular favour in Iraq, it was customary for an author or scholar to put his own doctrine or work under the aegis of an ancient authority.”108

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In the following century, the two other schools were founded: the Shafei School of Imam Idris al-Shafei in Egypt and the Hanbali School of Imam Ahmad ibn Hanbal in Baghdad. As already mentioned, one can identify them by focusing on their differences concerning legal matters. Imam Malik, for instance, preferred a principle known as Ahal-e-Madinah, that is the practices of the people of Medina. On the contrary, Imam Ahmad ibn Hanbal of Baghdad did not adopt that principle.

However binding the different legal approaches might be, one should not overestimate them. As a matter of fact, the loyalty to a particular Madhhab among Muslims is decreasing. Today Hanafi, Shafi`i, Maliki and Hanbali followers pray together and work together. Most scholars state that individual adherents to the Muslim faith are not required to follow a specific Fiqh School. The reason is that nothing can be demanded of a Muslim that cannot be traced back directly to Allah and His Prophet since the existence of different Law Schools reflects a historical and especially political development rather than divine desire. When in need of a Fatwa, Muslims could consult with any scholar regardless of his Madh-hab (School).

Adding to this, Sunni Islam does not possess clerical hierarchies and centralized institutions which may be important when looking at legal authorities. The absence of a hierarchy has been advocated as a source of strength permitting the faith to adapt to local conditions. However, it has also been a weakness that makes it difficult for Sunni Muslims to achieve any significant degree of solidarity. Within the Sunni community one can find different divisions like the Kharjiites, Wahabis, Deobandi, Barelvi, Ahle-Sunnat, Wal Jamat, Ahle Hadith, Ghurba Ahle Hadits, Sunnis of Green Turban and the Sunnis of Brown Turbans. They declare each other wrong and seldom offer prayer behind each other.

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Among Sunni Muslims, an effective execution of power and the ability to maintain public order are sufficient in order to legitimise authority. This is in stark contrast to the more uncompromising Shia views of government who see it as the sole province of religious leaders. For Sunnis, even a bad Muslim ruler is preferable to chaos and anarchy, and the Sunni religious tradition contains only a limited right to rebel. However, if a ruler commands something that is contrary to God’s law, the subject’s duty of obedience lapses.

Therefore, the differences between Sunni and Shia and the various sub-divisions had originally a political background. However, those differences were also translated into theological and metaphysical interpretations. In principle, a Sunni approaches God directly; there is no clerical hierarchy. Some duly appointed religious figures, however, exert considerable social and political power. Imams usually are men of importance in their communities but they do not have to obtain any formal training; among the Bedouins, for example, any tribal member may lead communal prayers.

Committees of socially prominent worshipers, comparable to Western Church boards, usually control the mosque-owned land and gifts. In many Arab countries, the administration of waqfs (religious endowments) has come under the influence of the state. Kadi (judges) and Imams are appointed by the government, a principle that illustrates once more the strong link between state and religious matters.

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If jurists were free to go back to the roots of law and interpret them individually in the first two centuries of Islam, this approach stopped with the formation of the four Schools that started defending certain orthodoxy in terms of legal matters. The scope of free interpretation was gradually curtailed and “by the beginning of the 10th century, there was a consensus among the jurists that the principles of law as settled by the recognized schools were sacrosanct and immutable and that there was no any necessity for new legal principles to be deduced.”109

8.1. Hanafiyyah School

The Hanafiyyah School is the first of the four orthodox Sunni Schools of Law. It distinguishes itself from the other schools by according less authority to oral traditions as a source of legal procedure. Contrarily, it developed the exegesis of the Koran through a method of analogical reasoning known as Qiyas which necessitated a careful study of actual conditions in legal thinking. Furthermore, it established the principle that agreements of the Ummah (community) of Islam concerning a specific point in the Islam law codex, as represented by legal and religious Scholars, constituted evidence of the will of God. This process is referred to as Ijma', which means the consensus of the scholars. Thus, the school definitively established the Koran and its resulting principles known as Ijma' and Qiyas as the basis of Islamic law. In addition to these, Hanafi accepted local customs as a secondary source of the law. On the other side, it refrained from according too much authority to the principle of Tradition as legal source because this source related too heavily to particular conditions of time and space and, therefore, could not easily adapted to new challenges and circumstances. Consequently, von Kremer referred to it as “the highest and loftiest achievement of which Islam was capable.”110

The Hanafi School of Law was founded by Nu'man Abu Hanifah (699 - 766) in Kufa in what is today Iraq. It derived from the bulk of the ancient school of Kufa and absorbed the ancient school of Basra. Abu Hanifah lived in the period of the successors of the Sahabah (the companions of the Prophet). The Hanafi School was favoured by the first 'Abbasid caliphs in spite of the school's opposition to the power of the caliphs because it had originated in Iraq.

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The privileged position which the school enjoyed under the 'Abbasid caliphate was lost with the decline of the 'Abbasid caliphate. However, the rise of the Ottoman Empire led to the revival of Hanafi fortunes. Under the Ottomans, Hanafites were appointed judge and sent from Istanbul, even to countries where the population followed another madhhab. Consequently, the Hanafi madhhab became the only authoritative code of law in the public life and official administration of justice in all the provinces of the Ottoman Empire111. Even today the Hanafi code prevails in the former Ottoman countries like Jordan. It is also dominant in Central Asia and India. There are no official figures for the number of followers of the Hanafi School of law. However, it is followed by the vast majority of people in the Muslim world. The big advantage of the Hanafi School (Fiqh) results from the fact that it is easier to understand and act upon than the other systems of Fiqh.

The Koran repeatedly underlines the assumption that God wishes to be gentle and not strict with his followers. The Prophet declared that he had come to the people with a gentle and easy Sharia. Following this, it is Islam's special pride in comparison with other religions, as often stated by Muslim scholars, that it is far removed from principles like monasticism; that its ritual is not rigorous and that its enjoinments are easy to understand and act upon. Within this context, the Hanafi Fiqh is superior to its rivals on similar grounds.

So well known is the fact that HanafiFiqh is easy and liberal that poets and writers often employ it as a proverb. A rather curious example of this is a simile used by the Islam scholar Anwari, in which he speaks of the liberties allowed by Abu Hanifah.112 The simile occurs in an improper context, but the point it makes is clear. On any question - whether pertaining to the duties of worship or to worldly transactions - one finds Abu Hanifah's precepts easy and gentle and those of the other imams difficult and harsh. This becomes evident if one looks at the rules regarding theft for illustration purpose. Those were laid down in the Kitab al-Jinayat (The Criminal Code) and the Kitab al-Hudod (the Penal Code).

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It is agreed by all authorities that the punishment for theft is cutting off the right hand. However, the mujtahids have linked the execution of the punishment to certain conditions when defining theft. Regarding the criminal act of theft according to the Hanafi School pardon is allowed at all the time as well as the testimony of women which is granted an equal value than that of men.

A large part of Fiqh deals with prohibitions and permissions. In this connection, there are many precepts of the other imams, which, if they were to be closely followed, would make life unbearable if not impossible, while Abu Hanifah's precepts are easy to follow. For example, according to Shafi'i School, the following acts are impermissible: bathing or performing ablution with water heated on dung-fire; eating out of clay vessels baked on dung-fire; using vessels made of tin, glass, crystal and agate; wearing garments made of wool, sable fur and leather (in which prayer cannot be offered); vessels, chairs and saddles with silver work on them; common sales in which there is no declaration of selling and buying and so on. Abu Hanifah considers all these acts permissible.

The School also contributed largely in adding new restrictions and regulations concerning the proceeding of business and its legal dimensions. Its founder was “fully alive to the new demands on religion as a consequence of the expansion of Muslim political [and economic] power.”113 The primitive civilisations of the Arab Peninsula up to the first centuries of Islam did not know then the world of contracts, legal documents that are written down, legal procedures aiming at the settlement of disputes or the adducing of evidence. Abu Hanifah was the first to introduce rules for all of these. Herein lays the basic idea of the Hanafi School: In an ever altering world with constantly changing circumstances, a system of law needs to be permanently adapted to those new situations and calls for new considerations. Therefore, it “possesses greater power of creative adaptation than any other School of Muhammadan Law.”114  

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Today, the Sunni Hanafi School is dominant in India, Pakistan, China, and Afghanistan. Most of the Kurds are Sunni Muslims and follow the Hanafi School as well. Furthermore, followers of Imam Abu Hanifa are found among ethnic Kazakhs but also in Turkey, Iraq, Syria, China, North Africa, Egypt and in the Malay. They also constitute the majority of the Muslim population of Albania, the Balkans, Central Asia, Kazakhstan, and Jordan.

8.2. Maliki School

The founder of the second Islamic School of Law, Iman Malik bin Anas (715 – 95) came from Medina and had direct access to some of the most trustworthy and reliable authorities on hadith. This is because many of the leading companions of Muhammad lived there and narrated sayings and actions of the Holy Prophet. Therefore, his legal approach was heavily influenced by their narrations and the juristic verdict given by them. Malik bin Anas himself became a leading authority on hadith in addition to the fame he won as a renowned jurist115. Such was his stature that it is said three 'Abbasid caliphs visited him while they were on Pilgrimage to Medina.

As a result of the circumstances Malik bin Anas has been confronted with, the Malikis' concept of ijma' differed from the one of the Hanafis in that they understood it to mean the consensus of the community represented by the people of Medina Prophet City. Imam Malik's major contribution to Islamic law is his book al-Muwatta (The Beaten Path). The Muwatta is a code of law based on the legal practices that were operating in Medina. It covers various areas ranging from prescribed rituals of prayer and fasting to the correct conduct of business relations. The legal code is supported by some 2000 traditions attributed to the Prophet. One could view it a corpus juries because of the density and complexity it includes. It forms the connecting link between the fiqh literature and the vast hadith collections of latter days; this is why the School usually assumes an intermediary position in case of disputes between different scholars of Islamic Law since it refers to both, the legal approach and the principle of tradition as evoked by the hadith collections.

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Imam Malik’s approach did not differ that much from the Hanifite School but he did not place as much reliance on the principle of Qiyas and rather leaned to Sunna. However, he upheld the importance of individual judgement when other sources failed. Since Imam Maliki was in a better position than Hanifi in terms of knowing the Laws as laid down by the Prophet and his companions and their successors, he also included more of them into his system.

The School that was founded spread westwards through Malik's disciples and become very influential if not dominant in North Africa and Spain. The second 'Abbasid caliph, al-Mansur (died in 775), even approached the Medinan jurist with the proposal to establish a judicial system that would unite the different judicial methods that were operating at that time throughout the Islamic world.

Despite those tendencies, it lost some of its appeal. Much later, in the Ottoman period, the Maliki School had to cede most of its influence to the Hanafite School because under the Ottomans judicial relevance was especially granted to the latter. North Africa, however, remained faithful to its Malikite heritage. Such was the strength of the local tradition that kadis (judges) from both the Hanafite and Malikite traditions cooperated with the local ruler. Following the fall of the Ottoman Empire, Malikiyyah regained its position of ascendancy in the region. Today Malikite doctrine and practice remains widespread throughout North Africa, the Sudan and regions of West and Central Africa.

8.3. Shafaiah School

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Between the relatively liberal Hanifi School and the more orthodox Maliki School one can observe a few other legal approaches that are all considered to assume a rather conciliatory position. One of the best known examples is the Shafi’I School that was founded by and named after Imam Muhammad bin Idris al-Sharii (767 – 819) who had been a descendant of the Prophet's uncle, Abu Talib. The intermediary position of his School can at best be observed when looking at his personal background. The founder was a student of a follower of Imam Malik but was also taught law by one of the adherents of Imam Hanifi. Therefore, he came into contact with both Schools and searched an intermediary position between the independent legal investigation that is characterized by the weight it accords to the careful study of an actual condition in legal thinking and on the other side the more conservative traditionalism of his time that found its expression in the study of hadith. However, he came to believe in the overriding authority of the traditions from the Prophet and identified them with Sunna.

Baghdad and Cairo were the chief centres of the Shafi'iyyah. From these two cities Shafi'I’s teaching spread into various parts of the Islamic world. In the tenth century Mecca and Medina came to be regarded as the School's chief centres outside of Egypt. In the centuries preceding the emergence of the Ottoman Empire the Shafi'is had acquired supremacy in the central lands of Islam. It was only under the Ottoman sultans at the beginning of the sixteenth century that the Shafi'i were replaced by the Hanafites, who were given judicial authority in Constantinople, while Central Asia passed to the Shi'a as a result of the rise of the Safawids in 1501.

In spite of these developments, the people in Egypt, Syria, Jordan, Palestine, Sudan and the Hidjaz (Gulf Area) continued to follow the Shafi'i madhhab. Today it remains predominant in Southern Arabia, Bahrain, Indonesia, East Africa and several parts of Central Asia. Shafi'i is practiced in Malaysia and the Philippines. It is followed by approximately 15% of Muslims worldwide. Additionally, most Kurds in Iraq follow the Shafii School of Sunni Islam. Only a minority, concentrated in parts of the areas of Kirkuk, follow the Hanafi School. In terms of number of adherents and also in terms of importance, the School takes rank next only to the Hanafi School.116

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The Shaf'i School is considered the easiest School and the Hanbali is considered the hardestin terms of social and personal rule. Hanafi took Shafi as his rival and vice versa. Tradition, the Consensus of the Muslim community and reasoning by the principle of Analogy are the chief characteristics of this School. Its founder had taught in both Baghdad and Cairo and followed a somewhat eclectic legal path, laying down the rules for Analogy that were later adopted by other legal schools. He was noticed for his balance in judgement and consideration of views resulting from his intermediary position between the Hanafi and the Maliki School. Within this context, he allowed a more flexible and workable interpretation of the Prophet’s dictum that his people would never agree on error.

At the time of Al-Shafi'i, the Prophet's ahadith were gathered from different countries, and the disagreements among the scholars increased until Al-Shafi'i wrote his famous book, Al-Risalah, which is considered the foundation of Islamic jurisprudence117. He was also the first one to write a treatise on the basic principles and methods of jurisprudence.

8.4. Hanbali School

The Hanbali School is the fourth important orthodox School of Law within Sunni Islam. Like the other ones it derives its decrees from the Koran and the Sunna, but places them above all forms of Consensus, opinion or inference. That’s why it characterized by an uncompromising attitude. However, the school accepts as authoritative an opinion given by a companion of the Prophet, providing there is no disagreement with another companion. In the case of such disagreement, the opinion of the Companion nearest to that of the Koran or the Sunna will prevail.

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The Hanbali School of Law was established by Ahmad bin Hanbal (780 - 855). He studied law under different masters, including Imam Shafi'I, the founder of the third school. Hanbal was regarded as more learned in the Traditions than in jurisprudence. His status also derives from his collection and exposition of the hadiths. One even has to say that his austerity in life combined with the remarkable erudition in traditional learning gave rise to the study of hadith. In number of traditions that he collected, no one approached him. Thus, his major contribution to Islamic scholarship is a collection of fifty thousand traditions known as Musnadul-Imam Hanbal 118. With Imam Hanbal, the true evolution of an Islamic Law and the age of independent legal scholars had come to an end. All major contributions that were done afterwards adding to the development of legal science were only supplementary.

In spite of the importance of Hanbal's work his school did not enjoy the popularity of the three preceding Sunni Schools of Law. Hanbal's followers were regarded as reactionary and troublesome on account of their reluctance to give personal opinion on matters of law, their rejection of analogy, their fanatic intolerance of views other than their own, and their exclusion of opponents from power and judicial office. Their unpopularity led to periodic bouts of persecution against them. The later history of the school has been characterised by fluctuations in their fortunes. However, latter Hanbali scholars such as Ibn Taymiyya (died in 1328) and Ibn Qayyim al-Jouzia (died in 1350) did display more tolerance to other views than their predecessors and were instrumental in making the teachings of Hanbali more generally accessible119.

From time to time Hanbaliyyah became an active and numerically strong school in certain. areas under the jurisdiction of the 'Abbassid Caliphate. Nevertheless, its importance gradually declined under the Ottoman Turks. On the other side, the emergence of the Wahabi in the nineteenth century in Central Arabia and its challenge to Ottoman authority enabled Hanbaliyyah to enjoy a period of revival. Today the school is officially recognised as authoritative in Saudi Arabia and areas within the Persian Gulf.

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Today, the government of Saudi Arabia vigorously enforces its prohibition against all forms of public religious expression other than that of those who follow the government’s interpretation and presentation of the Hanbali school of Sunni Islam. This is despite the fact that there are large communities of non-Muslims and Muslims from a variety of doctrinal Schools of Islam residing in Saudi Arabia.

Under the Hanbali interpretation of Shari’a law, judges may discount the testimony of people who are not practicing Muslims or who do not have the correct faith. The explanation of Saudi officials is that their Hanbali School of Islam religiously mandates that they deny other religions the right to function openly on the Arabian Peninsula - a right that is clearly protected under international law.

Fußnoten und Endnoten

106  Rahim, Mohamed, Encylopedia of Islam, Delhi 1971, 488ff.

107  Mahmassani, S., The philosophy of Jurisprudence in Islam, Leiden 1961, 71ff.

108  Schacht, Joseph, Pre-Islamic Background and the early development of Jurisprudence, in: Law in the Middle East 28, 1955 London, 43ff.

109  Serajuddin, , Alamgir Muhammad, Sharia Law and Society, Oxford 1999 2ff.

110  von Kremer, Alfred, Geschichte der herrschenden Ideen des Islam, Leipzig 1868, 398ff.

111  Yozsef, Mousa, Abu Hanifeh , Baghdad 1982, 171ff.

112  Anwari, M., Die Zeichen Gottes. Die religiöse Welt des Islam, München 1995, 46ff.

113  Hanif, Islamic concept of crime and justice, New Delhi 1999, 18ff.

114  von Kremer, Alfred, Geschichte der herrschenden Ideen des Islam, Leipzig 1868, 397ff.

115  Abu Zahra, Mohamed, Islam Madahib, Cairo 1981, 231ff.

116  Hanif, Islamic concept of crime and justice, New Delhi 1999, 20ff.

117  Abu Zahra, Mohamed, History of Islam Law, Cairo 1976, note 2, 275ff.

118  Nishi, Purohit, Mohamedan law, Allahabad India 1998, 41ff.

119  Abu Zahra, History of Islam Law, Cairo 1976, 358ff.

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