Islamic Jurisprudence and its subdivision, inheritance lawsby Ibn Khaldun
Jurisprudence is the knowledge of the classification of the laws of God, which concern the actions of all responsible Muslims, as obligatory, forbidden, recommendable, disliked, or permissible.
These laws are derived from:
- the Qur’an
- the Sunnah (traditions)
- the evidence Muhammad has established for knowledge of the laws
The laws evolved from the whole of this evidence are called “jurisprudence” (fiqh).
The early Muslims evolved the laws from that evidence. But they unavoidably differed in the interpretation of it.
The evidence is mainly derived from Arabic texts. There have been many differences among them due to the meaning of words, especially legal concepts.
The traditions (Sunnah) differ widely in respect of the reliability of the recensions. Their legal contents, as a rule, are contradictory. Therefore, a decision is needed.
This makes for differences of opinion. Furthermore, evidence not derived from texts causes (still other) differences of opinion. Then, there are new cases which arise and are not covered by the texts.
They are referred by analogy to things that are covered by the texts. All of this serves to stir up unavoidable differences of opinion, and this is why differences of opinion occurred among the early Muslims and the religious leaders after them.
Moreover, not all of the men around Muhammad were qualified to give legal decisions. Not all of them could serve as sources for religious (practice). That was restricted to men who knew the Qur’an and were acquainted with the abrogating and abrogated, the ambiguous and unambiguous verses, and with all the rest of the evidence that can be derived from the Qur’an, since they had learned (these matters) from the Prophet directly or from their higher ranking colleagues who had learned it from him.
These men, therefore, were called “readers,” that is, men who (were able to) read the Qur’an. Because the Arabs were an illiterate nation, those who were able to read the Qur’an were distinguished by the name of “readers.” Their ability to read was a remarkable thing in those days.
It continued to be that way at the beginning of Islam. Then, the cities of Islam grew, and illiteracy disappeared from among the Arabs because of their constant occupation with the Qur’an. Now the development (of jurisprudence from its sources) took place.
Jurisprudence was perfected and came to be a craft and science. The Qur’an readers became jurists and religious scholars.
The jurists developed two different approaches to jurisprudence.
- The use of reasoning and analogy.
It was represented by the Iraqis. They had few traditions and so they used analogy and became skilled in it. Their school centered around their chief, imam Abu Hanifah.
- The use of traditions
It was represented by the Hijazis. The leader of the Hijazis was Malik b. Anas and, after him, ash-Shafi’i.
Later, the religious scholars called the Zahirites rejected analogy. They restricted the sources of the law to the texts and the general consensus. They considered obvious analogy and causality suggested by the texts as resting in the texts themselves, because a text that indicates a ratio legis permits legal decision for all the cases covered by (such a kind of reasoning). 171
The leaders of this school were Dawud b. ‘Ali 172 and his son and their followers.
These were the three schools famous among the Muslims. The ‘Alids invented their own school and had their own jurisprudence. They based it on their dogma requiring abuse of some of the men around Muhammad, and upon their stated opinion concerning the infallibility of the imams and the inadmissibility of differences in their statements.
All these are futile principles. The Kharijites similarly had their own school. The great mass did not care for these (unorthodox) schools, but greatly disapproved of them and abused them.
Nothing is known of the opinions of these schools. Their books are not being transmitted. No trace of them can be found except in regions inhabited (by these sectarians).
The legal text of the Shi’ah are thus found in Shi’ah countries in the West, the East, and in the Yemen. The same applies to the Kharijites.
All of them have (legal) writings and books and hold strange opinions on jurisprudence.
The Zahirite school has become extinct today as the result of the extinction of their religious leaders and disapproval of their adherents by the great mass of Muslims. It has survived only in books, which have eternal life.
Worthless persons occasionally feel obliged to follow this school and study these books in the desire to learn the Zahirite system of jurisprudence.
In doing so, they often are considered innovators, as they accept knowledge from books for which no key is provided by teachers. 174
That was done by Ibn Hazm al-Andalusi; 175 although he occupies a high rank in the expert knowledge of traditions. He turned to the Zahirite school and became skilled in it.
He gave his own independent interpretation of their stated opinions. He opposed their leader Dawud and attacked most of the Muslim religious leaders. For that, the scholars took their revenge on him. They greatly vilified his school and completely disregarded his books.
It went so far that sale of his books on the market was prohibited. At certain times, they were (even) torn up.
Nothing has remained except the schools of the representatives of opinion (reasoning) in the `Iraq and of the representatives of traditions in the Hijaz.
The leading authority of the Iraqis, around whom their school centered, was Abu Hanifah an-Nu`man b. Thabit.
His place in jurisprudence is unrivaled. This has been attested by persons of his own caliber, in particular, Malik and ash-Shafi’i. The leading authority of the IIijazts was Malik b. Anas al-Asbahi, who held the leading position in Medina. He is distinguished by the fact that he added another source of law to those known to other scholars, namely, the practice of the Medinese.
He was of the opinion that by virtue of their religion and traditionalism, the Medinese always necessarily followed each immediately preceding generation of Medinese, in respect of what they cared 176 to do or not to do. The (process would have gone back) to the generation that was in contact with the actions of the Prophet, and they would have learned from him (what to do and not to do).
In (Malik’s) opinion, the practice of the Medinese, thus, is basic legal evidence.
Many scholars have thought that the (practice of the Medinese) is (rather) one of the problems of the general consensus. Therefore, they have disapproved of (Malik’s use of) it, because use of the general consensus as a source of law is not restricted to the inhabitants of Medina to the exclusion of other (Muslims), butextends to all Muslims.
However, it should be known that general consensus means agreement concerning a religious matter on the strength of independent judgment.
Malik did not consider the practice of the Medinese in this light. He considered it in the light of the continuity of personal observation over successive generations, (going) back to the time of the Lawgiver (Muhammad).
The necessity of the traditionalism of the Medinese (caused by the fact that they have such excellent models to follow), supports that (attitude).
The problem (of the practice of the Medinese) has been mentioned in the chapter (of legal works) dealing with the general consensus. This is the most appropriate place for it, because both the (practice of the Medinese) and the general consensus are concerned with agreement.
However, the agreement of general consensus is the result of independent judgment and opinion (reasoning), in view of the (available) evidence. The agreement of the Medinese, on the other hand, affects their practice in as much as it involves reliance upon personal observation of (the practice of) their predecessors.
It would have been more appropriate if the problem (of the practice of the Medinese) were mentioned in the chapter on the actions of the Prophet, or in connection with (the topic of) evidence concerning which there are differences of opinion - as, for example, (the use as legal evidence) of the law of the religions preceding us (Islam), the (legal) opinions of men around Muhammad, and (the problems of) praesumptio legis (istishab). 178