William andrew kopwe the open university of tanzania

2.2.6.2 Hanbal School of Law

This school originated in Baghdad Iraq in 9^thC AD. The official school was in Saudi Arabia and Qatar. It was named after Ahamad bin Hanbal. He was a theologian and jurist. Ibn Khallikan who has written about all four schools of law says that Ibn Hanbal knew about one million aÈadīth by heart. Hanbal’s major surviving work is the collection of thirty thousand aÈadīth. He was beaten and put in prison by the caliph for his theological stand on uncreatedness of the Qur’ān (Waines, 1995). The school has many adherents in Palestine, Syria and Iraq. The recognized sources of law for this school are the Qur’ān, 0adīth, fatwas (legal pronouncement) of the Sahaba (Muhammad’s companions); analogy (|iyās Bottom of Form

) is used only when absolutely necessary. The school encourages the practice of independent reasoning (ijthad) through study of the Qur’ān and 0adīth. It rejects taqlid (blind following) of the opinions of other scholars, and advocates a literal interpretation of textual sources. Ritualistically, this is the most conservative of Sunni law. However it is the most liberal in the commercial laws (Esposito, 2003).

2.2.6.3 Maliki School of Law

It was originated in the Arabia Peninsula in the 8^thC AD. This was originally referred to as the School of Hejaz or the school of Medina. It was founded by Abu Abdallah Malik bin Anas of Medina (d. 779 AD). He had a profound devotion for the traditions of the prophet. His major work, muwatta (trodden way) is the earliest surviving textbook of fiÎh. It contains two thousand aÈadīth. Apart from the Qur’ān and Sunna, Maliki often refers to old Madinese practices which he took for granted as uncorrupted ways of early Muslims and indeed Muhammad himself. Maliki School of law is predominant in North Africa and significantly present in Upper Egypt, Sudan, Bahrain, United Arab Emirates, and Kuwait. It is characterized by strong emphasis on 0adīth; many doctrines are attributed to early Muslims such as Muhammad’s wives, relative and companions. A distinguishing feature of the school is its reliance on the practice of the companions in Medina as a source of law. Additionally, Malik was known to have used ray and |iyās Bottom of Form

  as the source of law (Esposito, 2003).

2.2.6.4 Shafii School of Law

This was founded in the 8^thC AD by Abu Abdallah Muhammad bin Idris As-Shafii (d. 820 AD). He was a descendant of the prophet’s tribe, Quraysh. He was the first jurist to define Sunna as the model behavior of the prophet. Shafii refined and systematized the legal thinking of his predecessors, including Hanifa and Malik. Shafii determined to reduce the range of differences in theoretical approach of the Sharī’a among schools of law. He was the one who formulated the classical theory of jurisprudence [Ußål-al- fiÎh (the root of law)] that is Qur’ān, Sunna, Ijmā’ and |iyās Bottom of Form

 . He hoped to eliminate bidah (innovations) by arguing that the whole Sharī’a could be derived from the Qur’ān and that Sunna should be narrowed to only that of the prophet as told by reliable Isnad⁶. He limited the use of jurists’ discretionary opinion based on ray (personal opinion) or istihsan (public good) to only that based on the Qur’ān and Sunna.

Unlike Hanafi and Maliki, Shafii took for granted that the Qur’ān and the tradition did not contradict each other. He also differs with others in the meaning of Ijmā’ as to be the consensus of scholars but he says that there is only one valid consensus that is of the entire Muslim community. He thus restricted the scope of Ijmā’ to obligatory duties, such as the daily prayer, on which such consensus could be said to exist. Though he is the pupil of both Hanafi and Maliki he differs with them. The Shafii School is now prevalent in Lower Egypt, Southern Arabia, East Africa, Indonesia and Malaysia and has many followers in Palestine, Jordan and Syria (Esposito, 2003).

2.3 Practical Uses of Sharī’a

Sharī’a functions in a multifaceted ways. Sharī’a functions in the world revolving around social, economical, political and religious issues. There is a lot of literature about the use of Sharī’a in the world. In this part the researcher presents selected literature which will help to build the foundation for the understanding of this study.

2.3.1 Position of Sharī’a in Islam

Sharī’a is a kernel of Islam. Jomier (1989) contends that Sharī’a is the very fundamental characteristic of Islam. For him Islam is a religion of law. Law is an integral part of Islam that one cannot separate Islam from law. Similarly, Waines (1995) informs that the most impressive and characteristics monument in the religious culture of Islam is Sharī’a. Sharī’a is the expression of the will of Allāh manifested in His guidance of Muhammad and preserved by the community in their scripture, the Qur’ān. Since according to Islam, the will of Allāh, the sole metaphysical reality, was both eternal and immutable, for Muslims, Sharī’a is eternal and immutable set of instructions.
Sharī’a occupies an important position in the lives of Muslims. Norman Anderson (1976) comments that Muslims’ daily conducts are supposed to be guided by Sharī’a. While theology teaches Muslims what to believe, Sharī’a teaches Muslims how to behave. Sharī’a is a distilled essence of Islam as a religion and the Islamic civilization. Rahman (1966) asserts that from theological perspective, Sharī’a and Din (which can loosely be translated as religion) are one. The two are inseparable and can be spoken of interchangeably. Hence Sharī’a is Islam and Islam is Sharī’a in the sense that Sharī’a encompasses the totality of Muslims’ life. On the same note, Hitti (1970) elucidates that according to the Muslim traditional views, Sharī’a is an integral part of the “word of Allāh incarnate. It coexisted with him.” Hence Sharī’a is eternal, perfect, universal, fit for all men at all times and in all ages. Because of this, Sharī’a does not differentiate between the sacred and secular. Hence Sharī’a implementation is tantamount to Muslims practicing their religion de jury.
Following the same line of argument, Norlén (2001) stresses the importance of Sharī’a in the Muslims’ life saying “The comprehensive approach of the Muslim Law reflects the very essence of Islam as a religion”. He further contends that according to the Islamic theology, life in society as well as the life of each individual has religious implications. Sharī’a does not make any separation between matters of religion and matters of practical guidance in society. As long as human beings live in the world, their relationship with fellow human beings and God are inseparable. They are all guided by Sharī’a in a way which makes Sharī’a to be such an important thing to the Muslims’ daily life.