Professional Documents
Culture Documents
SCHOOLS
Author(s): KEMĀL A. FARŪKI
Source: Islamic Studies, Vol. 10, No. 2 (JUNE 1971), pp. 129-136
Published by: Islamic Research Institute, International Islamic University, Islamabad
Stable URL: https://www.jstor.org/stable/20833023
Accessed: 24-08-2018 13:18 UTC
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AL-SH?FFPS AGREEMENTS DISAGREEMENTS WITH
THE M?LIKI AND THE HANAFI SCHOOLS
KEM?L A. FAR?KI
At the time of his birth Islamic law was at the beginning of the
fourth phase in its formative period. The first phase was the time of the
Prophet himself. The second was that of the orthodox Caliphate based
on Medina where the environment was such that theory and practice, legis
lation and administration, government and governed, were all working in
close harmony. The practice of the Prophet was well-known and his
influence was close and direct and circumstances had not changed to any
appreciable degree from what they had been in his time; the two divergen
cies that were to manifest themselves later had not appeared, namely the
divergency which takes place, even when circumstances remain virtually
unchanged, when a custom or practice is handed down from person to
person and generation to generation and the other divergency which takes
place when circumstances change and the existing practice is found to be
inapplicable or inappropriate to the changed circumstances.
The third phase in the formative period starts with the violent
change of the Umayyads shifting the capital to Damascus and the absorp
tion of large areas into the expanding Muslim state and the growth of new
centres of activity outside the Hij?z, notable in 'Iraq and to a much lesser
extent in Syria and later in Egypt. This third phase lasts for about three
quarters of a century or to the beginning of the second century. On the
basis of the available records it appears that in Hij?z the main centre was
Medina with Mekka being secondary, while in 'Iraq it was centred around
Kufa with Basra being secondary. Groups of jurists, in the rudimentary
sense of term, arose both in Hij?z and 'Iraq who answered questions
concerning Islam put to them and dealt with practical disputes on ques
tions of law. Although our knowledge of Medina and Kufa in this
activity is more detailed than that of Mekka an d Basra, even so the earliest
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130 KEMAL A. FARUKI
of the Medinese and Kufan jurists are vague shadowy figures known only
by references to them in later times rather than directly. In Kufa the tra
dition of deciding actual questions of law was established at an early
date when the second Caliph 'Umar b. al-KhattSb appointed a companion
'Abd Allah b. Mas'?d (d. 32) as a teacher and a judge there and one of his
successors Ibrahim al-Nakh'? (d. circa 95) was considered a great jurist
in his day. But it is of his immediate disciple Hamm?d b. AM Sulaym?n
(d. 120) that clear historical knowledge is available in the field of law for the
first time.
In Medina on the other hand, there are the 'seven lawyers of Medina'
who all died between the years 90 and 106 A.H. but it is with Zuhr? (d. 124)
that a definite historically known figure emerges.
What seems clear is that in both regions these early figures were
concerned with asserting the Islamic norm as against the secular adminis
trative practices which were dominating the capital Damascus. It also
seems true that both centres, Medina and 'Iraq, were concerned with assert
ing the sunna, which at this stage meant the practice of the Community
in which the practice of the Prophet and the Companions were impercep
tibly merged and at the same time both centres used m'y or their considered
'opinion' when this seemed appropriate or necessary. But circumstances
tended to make one centre emphasize the sunna more and the other centre
emphasize r?'y. The milieu of Medina was the direct heir to that of the
Prophet and his Companions and the early Caliphate and the established
sunna continued with relatively minor disturbances or new factors from
generation to generation. In 'Iraq, on the other hand, large elements from
the conquered Sassanid and Byzantine regions had entered the garrison
city of Kufa bringing with them from their pre-Islamic cultures developed
legal systems and customs which had now to be absorbed within the frame
work of Islamic norms. For this the sunna of Medina would have
proved insufficient. The new situations called for a far wider exercise of
r?'y rather than the assertion of a sunna from a distant and differing place.
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AL-SHAFITS AGREEMENTS AND DISAGREEMENTS 131
of Ab? Han?fa has survived except to the extent that they are reproduced
in the writings of his disciples Ab? Y?suf and ShaybSn?, there has come
down to us from MSlik his Muwatt?\
This was the position at the time of Al-Sh?fi'?s birth in the year
Ab? Han?fa died. After spending some time at an early age with bedouins
from where he acquired his command of Arabic poetry and indeed of
the Arabic language he moved to Mekka and came to Medina at about the
age of 20 where he studied under MSlik until the latter's death in 179.
Soon thereafter he was in Yemen in government service from where he
was recalled to 'Iraq by the Caliph H?r?n al-Rash?d. a victim of local
jealousies and interests.
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132 KEMAL A. FARUKI
A. The Qur'?n
A great deal of al-ShSfi'?'s writings on the Qur'Sn put in systematic
form what was already generally felt if not expressed or systematized and
no question of agreement or disagreement with the Medinese or 'Iraqians
was involved. This included his treatment of Qur'Snic rules as being
classifiable into those of 'general' and those of 'particular' application
and those of 'explicit' and those of 'implicit' significance.
B. Sunna
Whereas the Medinese held that the sunna of the Prophet was best
understood by the sunna of the Companions and that this in turn was best
understood by the sunna of Medina, the Kufans would not accept a sunna
(of whatever kind) which made their doctrine inconsistent and where
'everyone has abandoned it' treating such a case as one of repeal. Like
the Medinese, the 'Iraqians used sunna in an omnibus sense including much
besides formal traditions from the Prophet but in their case the 'living
tradition' was that of their school in 'Iraq.
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AL-SHAFITS AGREEMENTS AND DISAGREEMENTS 133
tions going back directly to the Prophet (and not by practice or consensus)
and that when once this was ascertained he further attempted to maintain
that this possessed decisive authority only capable of repeal by another
such tradition.
In al-Sh?fi'?'s time it appears that the setting aside of the rule reached
in favour of one based on general equitable considerations was normally
described as istihs?n although in later times this was considered to be
specifically IJanafi as distinguished from the MSlik? istisl?h (also called
al-mas?lih aUmursald). The meaning of istihs?n is the preferring as better
a ruling on general equitable considerations as compared to the normal
conclusion which results from strict ijtih?d; ijtih?d being used here in
its finished classical sense. This equitable preference is essentially arbi
trary, even extra-ghari'a and is a result of what appeals to the jurist as more
desirable or just. Istisl?lt is a similar setting aside of a conclusion reached
by strict ijtih?d but this time in favour of one which appears to the jurist
as more conducive to the public welfare. Thus istisl?h is slightly more
restrictive than istihs?n but both were opposed by al-Shafi'? as being arbi
trary forms of r?'y.
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134 KEMAL A. FARUKI
E. Ijm?*
The Medinese restricted ijm?' ('consensus') to that of Medina and
to the scholars of Medina in more precise terms. This of course was a
logical sequel to the importance they attached to the continuous general
sunna from the time of the Prophet through the companions and Succes
sors down to the living sunna of Medina. In cosmopolitan Kufa on the
other hand the 'Iraqian school extended consensus in theory to all countries
but also restricted it to the scholars. They used it to justify their use of
r?y' and the rejection of weak or isolated tradition, thereby fore-shadowing
the later importance of ijm?* in the final classical theory.
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AL-SHAFF t/S AGREEMENTS AND DISAGREEMENTS 135
F. Summary
In summary, the effect of al-Shafi'? on the ancient schools of the
ahi al-Hij?z and ahi aVIraq was to reduce to precise terms of art the
words used in very general fashion, often overlapping and sometimes even
used in contradictory senses and to make them acutely aware of the need
for systematizing their doctrines into consistent pattern.
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136 KEMAL A. FARUKI
NOTES:
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