Malik was not great; students attended the lectures of both and
combined their systems. But a reaction now began, and the traditionalist
party finally made itself felt. We have the inevitable
rivalry between the historical-empirical and the speculative-philosophical
schools of jurisprudence, rendered all the more bitter in that
the historical lawyers believed, in this case, that they were defending
a divine institution. There resulted, first, one of the most important
schools, the Shāfiʽīte; secondly, an extremely literal school for which
ash-Shāfiʽī did not go far enough, and which has now vanished; and
thirdly, the Ḥanbalite school, still surviving in small numbers, more
moderately traditional than the last.
The school founded by ash-Shāfiʽī (d. 820), a pupil of Malik, came first in order of time. The others were really revolts against the mildness of his compromise. His characteristics were a broad-minded, steady grasp of means and ends, a perception of what could and what could not be done, a willingness to admit all the tried principles in due balance, and, at one point especially, the insight of genius as to the possibilities of these principles. He laid great stress on tradition; a clear, authentic tradition he regarded as no less valid than the Koran itself. If the tradition was chronologically later than a Koranic passage and corrected that passage, he followed the tradition. But in this he was only regulating a fixed tendency. The Koran may be regarded theoretically as the first of all the sources of law and theology; practically its clear statements have been over-ridden in many cases. Most important of all, the principle of agreement (ijmāʽ) came finally with him to its full rights. The agreement of the Moslem peoples was to be the voice of God. “My people,” said a tradition from Mahomet, “will never agree in an error.” And so, over traditions and over the Koran itself, the agreement tacitly or explicitly ruled and rules. It stamps as authoritative that which the other principles lay down. At the head of each section of a Shāfiʽīte law book we read, “The basis of this, before the agreement, is such and such.” But with the aid of a principle of this breadth it was easy to reject the opinion which was so objectionable to the traditionalist party. In its place he took analogy (qiyās), which, discreetly used, could serve almost the same purpose. The Koranic passage or the tradition with which an analogy was suggested should, he taught, be examined to see if there was a reason clearly stated for the command. If so, that reason would give a basis for the analogy. Analogy based on the mechanical or external could not hold.
The four bases thus laid down by ash-Shāfiʽī—Koran; prophetic usage as expressed in traditions; analogy; agreement—have come to be accepted by all existing schools. This applies to all spheres of life, ethical, social, theological, legal, and it should never be forgotten that the Koran is only one of the sources for Moslem faith and conduct.
Few words are needed for the other, reactionary schools. One, now long extinct, was founded by a certain Dāʽud uẓ-Ẓāhirī, “David the Literalist,” born three or four years before the death of ash-Shāfiʽī, and so called because he insisted upon an absolutely literal interpretation of his texts—Koran or tradition—without account of context or metaphor. In consequence he had to reject analogy, and limited agreement to that of the companions of Mahomet; the Church of Islam was to have no constructive authority. In one point he showed great sanity of judgment, namely in his rejection of the principle jurare in verba magistri, otherwise regnant in Islam. His school had long and interesting consequences, mostly theological, but is now extinct, and never took rank with the others. The Moslem world found his positions too impossible, and now no one swears to his words. The other, the Ḥanbalite school, was founded by the scholars of Aḥmad ibn Ḥanbal after his death in 885. He himself would never have revolted against his master, ash-Shāfiʽī, but it was soon felt that his system, so far as he had any, was in essential opposition. He had been no lawyer, but a theologian and a collector and student of traditions. All his life had been a protest against speculation in divine things. Where the Koran and traditions were silent, he, too, had been silent. For this agnostic principle he had witnessed and suffered, and his standing with the people was that of a saint. Naturally, then, the last still existent school of traditionalist protest was launched in his name. It minimizes agreement and analogy, is literal in its interpretations, and is now by far the smallest of the four surviving schools. Its external history is that of a testifying and violent minority.
Other men, such as Ṭabarī, the historian and commentator, have had dreams that they, too, might join the Four Imāms (see Imām) as founders of legal rites, but none has succeeded. The Four remain the ultimate exponents of this canon law, and under the banner of one or other of them every Moslem must range himself. As there is a principle of unity in Islam, expressed in the alleged prophetic saying, “My people will never agree in an error,” so there is a principle of variety, also expressed in an alleged prophetic saying, “The disagreement of my people is a mercy from God.” The four rites may differ upon many points, yet the adherents of one never dream of regarding the adherents of the others as outside the Church of Islam; they are not “dissenters” in the English sense. God is merciful to his creatures, and gives them so much liberty of choice. Yet in practice this liberty is not great. The principle of swearing to the words of the master is a dead hand laid upon Islam. A man’s legal rite is generally settled by the place and other conditions of his birth, and after he has once accepted a rite, he must, if good and pious, follow it in all its details. Only the avowed sceptic or the recognized eccentric can be an eclectic.
The geographical distribution of the rites is roughly as follows: Moslems in Central Asia and northern India and the Turks everywhere are Hanifites; in Lower Egypt, Syria, southern India and the Malay Archipelago they are Shāfiʽītes; in Upper Egypt and in north Africa, west of Egypt, they are Malikites; only the Wahhābis (q.v.) in central Arabia are Ḥanbalites. But the will of the sovereign has also had a powerful influence and has frequently dictated the legal, as well as the theological, affiliations of his subjects. The Turks, for example, have thrown their weight almost everywhere on the Hanifite side. Their policy is to appoint only Hanifite judges (see Cadi), although for private and personal questions they appoint and pay Muftis (q.v.) of the other rites. In other cases, with a population of mixed legal adherence, the government has been known to appoint judges of different rites.
The Shīʽite canon law is dealt with separately, but some mention of two outstanding sects is here in place. The Ibāḍites (see Mahommedan Religion: Sects) have a system of canon law which in essentials is of older codification than that of any of the orthodox schools, going back to Abdallah ibn Iḅād himself, of the first century of the Hijra (Hejira). Its basis is above all the Koran, then a sparing use of traditions, natural to their early origin, and finally the agreement of their own learned men, again natural to an extreme dissenting sect, and it still rules the Ibāḍite communities at Oman, Zanzibar and the Mzab in southern Algeria. At all these places they, the last descendants of the Khārijites, hold severely apart, while the other Moslems shrink from them as heretics of the worst. Not nearly so far from ordinary Islam, but still of an extreme self-conscious Puritanism are the Wahhābis. They are really Ḥanbalites, but apply the rules of that school with uncompromising, reforming energy. The doctrine of the agreement of the Church of Islam they reject; only that of the immediate companions of Mahomet is valid. The people of Mahomet can err and has erred; each man must, on his own responsibility, draw his doctrine from the Koran and the traditions. Here they follow the Ẓāhirites.
All these schools of law administer a scheme of duties, which, as has already been remarked, comes nearest to the canon law of the Roman Church, and which for centuries has had only a partial connexion with the real legal systems of the Moslem peoples. Among the Wahhābis and Ibāḍites alone is it the whole of law. Elsewhere, since the Omayyad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized at best with the coming of the millennium. The causes and methods of this change call now for detailed notice.
As Islam spread beyond the desert and the conditions in which the life of Mahomet and his companions had been cast, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. It was rather the Moslem leaders who were compelled to abandon their ideas and for the sake of the spread of Islam to accept and incorporate much that was diametrically opposed to the original legislation either of the Koran or of Mahomet’s recorded decisions. As in religion the faiths of the conquered peoples were thinly veneered with Moslem phrases, so in law there grew up a customary code (‘ādāt) for each country, differing from every other, which often completely obscured and annulled the prescriptions of the canon law. The one was an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts.
But besides the obstinate adherence of various peoples to their old paths, the will of individual rulers was a determining factor. When these ceased to be saints and students of divine things, and came to be worldly statesmen and opportunists, followers of their own objects and pleasures, no system could hold which set a limit to their authority. The Oriental ruler must rule and judge on his own initiative, and the schools of canon law tended to reduce everything to an academic fixedness. There thus arose a new and specific statute law, emanating from the sovereign. At first he judged in the gate as seemed good in his eyes and as was his right and duty (cf. “court of oppressions”; see Mahommedan Institutions); later, his will was codified as in the Turkish statute law (qawānīn) derived from various European codes. Thus there has grown up in almost
