The Significance of the Sunni Schools of Law in Islamic Religious History

Author(s): George Makdisi

Source: International Journal of Middle East Studies, Vol. 10, No. 1 (Feb., 1979), pp. 1-8
Published by: Cambridge University Press
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Int. Y. Middle East Stud. IO (I979), i-8 Printed in Great Britain

George Makdisi

THE SIGNIFICANCE OF THE SUNNI SCHOOLS

OF LAW IN ISLAMIC RELIGIOUS HISTORY

One of the more interesting phenomena in Islamic religious history is the develop-
ment of the schools of law. This phenomenon has seldom failed to arouse our
interest, though it has consistently eluded our understanding. The difficulty in
grasping the significance of the schools of law is evidenced by vacillation in
translating the term madhhab. This term was first translated as 'sect,' then as
'rite' or 'school.' But a Sunni madhhab could not be a sect, since the term 'sect'
is applied to a dissenting religious body, one that is heretical in the eyes of other
members within the same communion. That is not the case with the Sunni
madhhabs, all of which are regarded equally as orthodox. Nor is the term 'rite' an
adequate one, since it applies to a division of the Christian church as determined
by liturgy; and, unlike a transfer from one rite to another in Christianity, a
transfer requiring certain formalities, the transfer in Islam is made from one
madhhab to another without any formalities whatsoever. The term 'school,' for
lack of a better term, is the most acceptable; it is the one that offers the least
difficulty. In using it we must keep in mind what the late Professor Schacht has
said about the early schools: that the term 'ancient schools of law' implies neither
any definite organization, nor a strict uniformity of doctrine within each school,
nor any formal teaching, nor any official status, nor even the existence of a body
of law in the Western meaning of the term.'
The idea of a school of law implies a body of doctrine followed by the members
of that school; but this idea does not accord with a system wherein jurisconsults
are expected to arrive at legal opinions individually after reflecting upon the
sources of the law to the best of their ability, that is, after practising ijtihdd,
personal reasoning, a very individual activity. The result of this ijtihdd is the
fatwd, or legal opinion. There was no such thing as a fatwd arrived at by a
committee of jurisconsults, let alone by a whole school of them. Furthermore,
Islam encourages the practice of ijtihdd. A tradition going back to the Prophet
makes it quite clear that a jurisconsult, in practising ijtihid, receives a reward
in the world to come, even if he should be mistaken; and if right, he is doubly
rewarded. The encouragement given him to practice ijtihdd is such that he is
rewarded regardless of the result.
AUTHOR'S NOTE: This paper was the presidential address delivered at the Annual
Meeting of the Middle East Studies Association in New York on io November I977.
1 J. Schacht, Esquisse d'une histoire du droit musulman (Paris: Max Besson, 1953), p. 24;
idem, An Introduction to Islamic Law (Oxford: Clarendon Press, i964), p. 28.
0020-7438/79/Oi08-o8o8 $0I50 ? 1979 Cambridge University Press

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2 George Makdisi

Ijtihad, being personal, naturally leads to disagreement. For one legal opinion
will be confronted by another or others, by members of the same school or by
those of other schools. This disagreement (khildf ) leads to disputation (mundzara)
the purpose of which is to defend the validity of one's own opinion, or thesis, and
to convince the opponent of its validity, or reduce him to silence by destroying
his thesis.
The process proceeded from personal legal opinion (fatwd), arrived at through
personal reasoning (ijtihad), and from there to disagreement (khildf), and
eventually to consensus (iWma'), through the instrumentality of the disputation
(munizara). This process is amply documented in the history of Muslim
education. It is a process that cuts across the schools of law (madhdhib), involving
individual jurisconsults of any and all Sunni schools. It worked this way at the
very beginning, in the first Islamic century, when there were no recognizable
schools of law; it worked this way in the following century when the schools
emerged designated geographically; it continued to work this way when they
became personal schools, and later still when the personal schools proliferated
so that their number was said to have multiplied into the hundreds; and the
process remained the same when the Sunni schools finally dwindled to four.
In short, the process was the same before the advent of the schools of law as we
know them, and it remained the same afterward throughout their development.
The reason for this is that the process involved, not the schools as such, but
rather the individual jurisconsult.
Indeed, the highest function of a jurisconsult was to issue legal opinions,
fatdwd, and he did so according to his own lights, knowing all the while that his
legal opinions had to confront other legal opinions of other jurisconsults. Within
each school, as well as among all schools, personal legal opinions were pitted
against one another, and the best-defended opinion survived. In the arena of
controversy, one may therefore find a jurisconsult of one school upholding the
thesis of a jurisconsult of another school against a third, of his own school. Had
it been otherwise, the schools of law would not have been acceptable to one
another, equally Sunni 'orthodox.'
Schacht quotes an interesting passage from Shdfi'i to the effect that every
Muslim capital has a body of legal knowledge and its jurisconsults follow the
opinion of one among them in most of his teachings (md min bilddi '1-muslimina
baladun illd wa-fthi 'ilmun qad sara ahiuha ild 'ttibd'i qauli rajulin min ahlihifi
akthari aqwdlih).2 This, of course, means that such a leading jurisconsult had
gained the reputation of a leader whose opinions prevailed over all others in the
arena of disputation. He had the reputation of successfully defending his thesis
and demolishing that of his opponent. This passage from Shdfi'!, in addition to
bringing out the significance of geographical regions as far as schools of law were
concerned - a point that Schacht wanted to make - also brings out the importance

2 J. Schacht, The Origins of Muhammadan Jurisprudence (Oxford: The Clarendon

Press, I950), p. 7. For the Arabic text, see Shdfi'i, Kitdb al-Umm, 7 vols. (Cairo: Bfilaq
Press, I32I-I325/I903-I907), VII, 246.

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 Sunni Schools of Law in Islamic Religious History 3

of the jurisconsult who has achieved leadership, or riyasa - a point I wish to

make here.
It is in fact this riyisa,3 or leadership, which led to the proliferation of the
personal schools of law. Some five hundred schools of law are said to have
disappeared at or about the beginning of the third/ninth century.4 But even
then the schools had not yet settled down to the number of four. We know that
the first century of Islam produced individual jurisconsults; that the early part
of the second century is the period during which the geographically designated
schools appeared; and that beginning with the second half of the second century,
geographical schools gave way to personal schools.
When we refer to the old sources for enlightenment regarding the personal
schools of law, we come across two terms that are also applied to theological
movements. The terms are ahl al-hadith, traditionalists, and ahl ar-ra'y,
rationalists, or ashdb al-hadith and ashab ar-ra'y. Besides the term ahl ar-ra'y for
the rationalists, other terms are used, such as ahl al-kahim, ahl an-nazar, and
ahl al-qivys.
The historical sources list the various personal schools of law under one or the
other of these two terms: the partisans of hadith or the partisans of ra'y. But the
sources are not consistent. Ibn Qutaiba5 lists all the eponyms of the schools of
law, except Ahmad b. Uanbal, as belonging to the rationalist movement of
ashdb ar-ray; and when he deals with ashMb al-hadith, or traditionalists, he cites
only individual tradition-experts. On the other hand, the tenth-century geo-
grapher al-Maqdisi considers the followers of Ahmad b. Hanbal, along with
those of Auzd'i (d. I57/774), Ibn Mundhir (d. 236/850-86i) and Ishdq b.
Rahawaih (d. 238/852-853), as ashlb al-hadith, as though they did not belong to
the schools of law (madhdhib al-fiqh), under which designation he cites the Han-
afis, Mlikis, Shfil'is, and Zdhiris.6 Elsewhere in the same work, al-Maqdis! cites
the Shdfi'is, in contrast with the Uanafis, as ashdb al-hadith;7 and in yet another
passage of the same author8 Shqfi'l and Ab5 Hanifa are considered as belonging to
ra'y in opposition to Ah.mad b. Hanbal.
Shahrastdni classifies Mdlik, Shdfi'i, Ahmad b. Hanbal, and Dwviid b.
Khalaf as ashdb al-hadith, and only the school of Abfu Ijanifa as ashaib ar-ray.9

3On the concept of riydsa, see the study by G. Makdisi in the forthcoming Melanges in
honor of G. C. Anawati and Louis Gardet (Louvain).
4A. Mez, The Renaissance of Islam (London: Luzac, 1937), p. 212.
5 Ibn Qutaiba, Kitab al-ma'drif, ed. F. Wiustenfeld (Gbttingen, 1850), pp. 248 f., cited
in I. Goldziher, Die Zdhirten, ihr Lehrsystem und ihre Geschichte (Leipzig: 0. Schulze,
1884), p. 4 n. I.
6 Al-Maqdisi, Ahsan at-taqdsimfima'rifat al-aqdlim, ed. M. J. de Goeje (Leiden: E. J.
Brill, I906), p. 37, lines 5, 7-8 (hereafter al-Maqdisi).
7 Ibid., p. 38, lines 8-9.
8 Ibid., p. 142, line Ii.
9 Shahrastani, al-Milal wa 'n-nihal, 5 vols. (on the margins of Ibn Hlazm, al-Fisal ft
'I-milal wa'l-ahwa' wa'n-nihal [Cairo: al-Adabiya Press, i317-321/1899-19301), II, 45,
lines 25-30, and p. 46, lines 15-i6.

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4 George Makdisi

Ibn Khaldin also has this classification, but places Ddwiid at the head of a
separate third class.10
Ibn an-Nadimil and al-Maqdisil2 classify the Hanbalis, Auzd'is, and Thauris
as the most important schools of law of the traditionalists (ashab al-hadith). At
the beginning of the fourth/tenth century the schools of jurisprudence mentioned
are the Shdfi'l, Mdliki, Thauri, Uanafi, and Ddwfidl, according to Subki.13 At the
end of that century, according to al-Maqdisi,14 they are the Hanafl, Mdliki,
Shdfi'i, and Ddwi)di. The Hanbalis are not cited as a school of law by these
sources in the fourth/tenth century.
One thing is clear: the sources are confusing. Some of the confusion results
from a misunderstanding of the term a1shib al-hadfth. Those who belonged to
this group were not necessarily experts on traditions; they were jurisconsults
who belonged to the traditionalist movement, and who were opposed to ration-
alism. The term ashdb al-hadith was confusing not only to modern scholars; it
had to be explained even to some of the Muslims themselves. For this reason,
Sha'rdni, in speaking of ahl al-hadith, took time to explain the meaning of the
term as follows: 'by ahl al-hadith is meant that which comprises the traditional-
ists [lit.: people of the Sunna] among the jurisconsults, even though they may not
be tradition-experts' (al-murddu bi-ahli 'I-hadith ma yashmulu ahla 's-sunna mina'
l-fuqahc', wa-in lam yakfinfi hizffwzan).1 5
One of the problems occupying the minds of scholars in this field is the
disappearance of the personal schools of law that had come into existence and the
survival of only four. Relying on a passage in al-Maqdisi's geography, scholars
have explained the phenomenon as owing to the school's geographical location
outside the mainstream of activity, away from the pilgrims' highways leading to
Mecca. In the passage in question, al-Maqdis! is answering an objection regard-
ing the Koranic scholar Ibn 'Amir (d. 118/736), whose variant readings of the
Koran are considered among the seven variant readings. Al-Maqdisi said that
had Ibn 'Amir been in the Hijdz or in 'Iraq he would not have been unknown, nor
would his readings have been aberrant; but he was in Egypt, an outlying district,
where he was visited by only the few who went there to see him, and who then
transmitted his readings. Then al-Maqdis! goes on to say: 'Do you not see al-
Auzd'i who was one of the leading jurisconsults, and whose school (madhhab),
for this reason, did not survive? Now if these two learned men had been on the

10 Ibn Khaldfin, al-Muqaddima (Cairo, I274/1i857-i858), p. 2i8, line i; in the

translation of F. Rosenthal, The Muqaddimah, 3 vols. [New York: Bollingen Foundation,
I958], III, 5), cited in Goldziher, Die Zdhiriten, p. 5 n. 3.
'1 Fihrist, p. 225, cited in Mez, Renaissance of Islam, p. 209 n. 3.
12 Al-Maqdisi, p. 37.
I3 Subki, Tabaqdt ash-shdfi'iya, 6 vols. (Cairo: al-Husaimiya Press, I324-I906), II,
337-
14 Al-Maqdisi, p. 37, line 5.
15 Ash-Sha'rani, Kitdb al-Mizdn, 2 vols. (Cairo: Qastalli, 1279/I862-I863), I, 63, cited
in Goldziher, Die Zdhiriten, p. 3 n. i. Sha'rani was commenting here on a saying trans-
mitted by Abfu Bakr b. 'Aiyash (d. I 93/808-809; see Ibn al-'Imad, Shadhardt adh-dhahab,
8 vols. [Cairo: Qudsi Press, I350/1931-I932], I, 334, lines 5-9).

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 Sunni Schools of Law in Islamic Religious History 5

pilgrims' highway, their doctrines (madhhab) would have been transmitted by the
pilgrims of East and West.'
This opinion of al-Maqdisi may well be true of these two learned men as well
as of others. But it does not explain why such schools of law as that of Ibn Jarlr
at-Tabari, which was founded in Baghdad like that of Ibn Hanbal, eventually
disappeared, whereas the Ijanbali school survived. Moreover, there was nothing
to stop a legal school from flourishing anywhere in Islam; for as far as its
advocates were concerned, their freedom of movement was unrestricted; they
could move about from city to city to propagate their teachings. A Muslim was
a 'citizen' in any Muslim city, unlike his counterpart in the Latin West.
Another reason given is that certain schools survived because they were
favored by the prince. This, if true, would have helped only in a certain locality,
the region under the prince's government. But this reason is also inadequate.
For one thing, princes were rarely in power for very long. More important,
however, is the fact that the prince bestowed his favors where it did the most
good for the prince. The doctors of the law, or the school of law, had first to be
important enough to attract the prince's attention and to secure his favors in
return for what the school could do for him.
To my mind, the key to understanding the phenomenon of the schools of
law in Islam is to be found in the interplay of law and traditionalism. It is to be
found in the struggle between traditionalism and rationalism, the turning-point
of which struggle was the mihna, or Inquisition. Moreover, it is to be found in
Baghdad, cultural center of the Muslim world.

The development of the schools can be best understood when the facts
regarding the development of prophetic traditions and legal studies are taken
into consideration. In the history of this development there are two moments of
great significance; they have to do with the last two schools of the four surviving
schools of law: the school of Shdfi'i and the school of Ahmad b. Hanbal; Shdfi'i,
for his synthesis of reason and authority in the law; and Ibn Hanbal, for
heroically surviving the Inquisition.
I need not dwell on Shdfi'i's achievement which Schacht has dealt with so
well. Through Shafi'i the traditionalist thesis was accepted over that of the
ancient schools; that is, he replaced the 'living tradition' of a given city with the
tradition of the Prophet.
But the big struggle between the rationalists and the traditionalists, and the
decisive one, was yet to come, that between ahl al-kaldm, the Mu'tazilis, and ahl
al-hadith, the traditionalists. Note that these are the two antagonistic groups of
Shdfi'i's time. The rationalists had not lost their importance after Shafi'i. On the
contrary, their forces were increasing in political strength. In fact, when Shdfi'i
died in 204/820, Mu'tazilism was just reaching the peak of its political power, in
the caliphate of al-Ma'miln. It was the period of the important movement of
translation from the Greek of works on philosophy and science. It was also the
period of the great Inquisition. The Inquisition, set afoot by the Mu'tazills,

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6 George Makdisi

established a reign of terror during the reigns of four caliphs: al-Ma'miln, al-
Mu'tasim, al-Wathiq, and al-Mutawakkil. It was not until the second year of
al-Mutawakkil's caliphate that it was brought to a halt. From that time on,
Mu'tazilism was finished as a political power. Traditionalism assumed its
ascendancy over the rationalistic forces. The hero of the traditionalist movement
was Ahmad b. Hanbal who weathered the persecution by sheer patience and
pertinacity. Against the passive resistance of this pious man, the Mu'tazilite
movement exhausted its political strength; it would never again recover it.
The struggle between the two antagonistic forces becomes apparent when the
schools of law change from the geographical designation to the personal one. For
the change into personally designated schools of law is in itself indicative of a
rallying call of the traditionalists to emulate the Prophet and his disciples
(aushb). Just as the Prophet was the leader with followers, each school consisted
of a leader (imdm), with followers (ashab). The criterion of leadership was
universal acceptance of the one with the greatest knowledge of Islamic law.
The proliferation of personal schools was accomplished in this manner. Many
schools came into existence, each with its leader, but only four survived. The
first three came into existence before the Inquisition. If the other numerous
schools disappeared it was not because of lack of legal knowledge on the part of
their leaders. To my mind, it was rather because of a natural movement on the
part of the traditionalists to close their ranks in order to present a solid front
against the perennial enemy, rationalism.
Contemporary with the development of the school of Ibn Hanbal, other
personal schools came into existence, lasted for varying periods of time, then
disappeared. Two prominent schools of this period, next to the Hanball School,
were the Zdhirl and Jariri schools of law. Before the fifth/eleventh century was
over, both had disappeared from Baghdad. But the Hanbali school remained,
surviving the attack of the leader of the Jariri school, the great historian Ibn
Jarir at-Tabari, who unsuccessfully impugned Ahmad b. Hanbal's qualifications
as a jurisconsult.
But legal knowledge was not at issue, however justified or unjustified the
criticism of Ibn Jarlr might have been. The Hanbali school came into existence
not as the result of a legal stance taken by its leader, but rather as the result of a
traditionalist theological stance taken against Mu'tazilite rationalism on the
question of the created character of the Koran. Against the Mu'tazilis, Ibn
Hanbal maintained that the Koran was the uncreated word of God; and this
doctrine remained the strict traditionalist thesis of Islam. The creed promulgated
under the name of the Caliphs al-Qddir and al-Qd'im in the first decades of the
fifth/eleventh century includes the doctrine of the uncreated word of God. True
to its origins, the school of Ibn Hanbal is a theological-juridical school, and the
only one in Islam to survive in this dual character.
One conclusion is very clear in Islamic religious history. Islam is, first and
foremost, a nomocracy. The highest expression of its genius is to be found in its
law; and its law is the source of legitimacy for other expressions of its genius. The

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 Sunni Schools of Law in Islamic Religious History 7

traditionists themselves had to find expression in the schools of law; and the
Hanbali school is the ultimate expression of their triumph. In Islam, law,
perennially a conservative force, is both the legitimizing agency and the agency of
moderation, for it must rest on both authority and reason. Legitimacy was sought
by various movements through association with one of the schools of law; as, for
instance, the Mu'tazilis who infiltrated the Hanafi school, and the Ash'aris, the
Shdfi'i school.16
As the agency of moderation, Islamic law held the line of the traditionalist
development of its schools with that of the Hanbalis, eventually rejecting the
Zdhiri school which had gone to extremes in traditionalism by refusing to accept
the principle of analogy.'7 By the end of the third quarter of the fifth/eleventh
century, this school had become extinct in Baghdad,18 which means that it had
lost its effectiveness in that city long before that date. The significance of the
emergence of the Zdhiri school lies in the fact that the movement of traditionalism
had been growing ever more traditionalist. It is indicative of the traditionalist
momentum gone berserk. Its demise is an indication of the effectiveness of the
law as an agency of moderation. As for the Jariri school, its demise may well have
been due to its founder's attack against Ahmad b. Hanbal, designating him as a
tradition-expert (muhaddith), not a jurisconsult (faqih). This may well have
roused the suspicions of the traditionalist jurisconsults that the Jariri school was
likely to develop in the direction of anti-hadith rationalism.
Moderate traditionalism triumphed, finding its final expression, both in law
and theology, in the founding of the Hanbali school. When attrition had taken
its toll of the schools that had burgeoned into existence, the Hanbali school
emerged as the seal of the schools of law.
The primacy of the law and the triumph of the traditionalist movement are
amply attested to by the development of Islam's institutions of learning following
the failure of the Inquisition. The masjids, which had developed as colleges for
one or another of the Islamic sciences, now became more and more the private
preserve of the jurisconsults. The titular professors were becoming more
exclusively professors of law. The teaching of law became the chief object of the
learning activity, the other subjects being offered as ancillaries. Masjids developed
into masjid-khdn complexes to accommodate students from out of town, from
all parts of the far-flung Islamic lands. For, unlike the student of hadith who
traveled in order to learn traditions, with no set time limit on his stay in various
places or with various teachers, the student of law had a curriculum to follow, and
the basic course took him usually four years to finish. Hence the need for a place
of lodging on a long-term basis and near the college where he had two long
16 See G. Makdisi, 'Ash'arl and the Ash'arites in Islamic Religious History,' Studia
Islamica, Vol. XVII (I962).
17 On Zahirism and giyds, see Goldziher, Die Zdhiriten; and R. Arnaldez, Grammaire et
thiologie chez Ibn .Hazm de Cordoue: Essai sur la structure et les conditions de la pensie
musulmane (Paris: J. Vrin, I956).
18 G. Makdisi, Ibn 'Aqil et la resurgence de I'Islam traditionaliste au Xie sitecle (Damas-
cus: Publications de l'Institut Franiais de Damas, I963), p. 28o and notes.

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8 George Makdisi

sessions each day, one in the morning and the other in the evening. The suhba
period of his studies, that is, the years of his graduate studies, and his apprentice-
ship for the professorship of law took many more years, during which he worked
as assistant to his professor. The masjid-khiin complex then developed into the
madrasa: the college of law par excellence.
By the time this institutional evolution had taken place from masjid, to
masjid-kha4n, to madrasa, the rationalist movement of Mu'tazilism had gone
underground. Ash'arism, a movement of more moderate rationalism, had taken
its place. Both movements, in order to gain legitimacy, had infiltrated the schools
of law whose ascendancy was now a fait accompli. Mu'tazilism infiltrated the
Hanafi school, and Ash'arism, the Shdfi'i school. But the schools of law remained
overwhelmingly traditionalist, with the Hanbali school acting as the spearhead of
the traditionalist movement.
This infiltration contributed greatly to the development of the Hanafi and Shdfi'i
schools of law and to the swellings of their ranks with new members, for the
madrasas acted as recruiting centers for the schools of law they represented.
The flourishing of the madrasa in the fifth/eleventh century was concentrated in
the Uanafi and Shafil schools of law. These madrasas, unlike the masjid-
colleges, gave room and board to the students of law. The traditionalist reaction,
once again, made itself felt in the following century, with the adoption of the mad-
rasa by the Hanbali school of law, and with the introduction of a new institution of
learning, the dir al-hadDth, or college of traditions, serving once again to rally the
forces of traditionalism in all four schools of law.
These institutions of learning were based on waqf, the charitable trust, a basic
principle of which was that nothing could take place in a waqf institution which
would be incompatible with the tenets of Islam. The teaching of rationalist
theology, for instance, could not be carried on openly in such an institution. This
principle guaranteed the traditionalist evolution of the institutions of learning.
The Hanbali school of law represents a unique achievement of the traditionalist
movement in Islam. It epitomizes the fusion of law and traditionalism more
perfectly than in any of the other schools of law. For the core of the Islamic
genius is expressed in both law and traditionalism; and Islam, at its core, is a
traditionalist nomocracy. That is why the Hanbali school, in spite of its peren-
nially smaller membership, in spite of its perennially restricted geographical
representation, survived nonetheless down through the centuries, and went on to
influence modern movements in Islam.

UNIVERSITY OF PENNSYLVANIA
PHILADELPHIA, PENNSYLVANIA

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