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Islamic Law

Legal Literature And Institutions

The origins of Islamic law are obscure, mostly because many seminal works have been lost. As mentioned earlier, the oldest extant legal compendia show that the study of the law was already quite sophisticated; there are indications that its systematic formulation dates back to the first half of the eighth century. It is likely that it was significantly influenced in its early stages by Roman provincial, Byzantine, Sassanian, and Rabbinic law. A few specific instances of influence have been suggested, such as P. Crone's study on the law of the patronate, but scholarship in this field is still in its infancy. The theoretical development of the law seems to have taken off in Iraq under the Abbasid caliphate (750–1258 C.E.). By 900 C.E., all the main genres of legal literature had been established, including extensive legal compendia (mabsut), epitomes of the points of law (mukhtasar), collections of model legal documents (shurut, watha'iq), collections of model court records (mahadir, sijillat), manuals for judges (adab al-qadi, adab al-qada'), collections of responsa (fatawa, masa'il), and manuals of jurisprudence or legal method and interpretation (usul al-fiqh).

In the course of the ninth and tenth centuries, the madhhab s, or schools of law, were formed, in an attempt, it has been claimed, to maintain autonomy from the caliph and exclude the dogmatic theologians and sectarian groups from religious authority. They had no charters, patents, or membership lists; their organization was informal. Nevertheless, by the mid-tenth century, it became impossible to study and teach Islamic law without belonging to one of the established schools. Six legal madhhab s, each named after a famous jurist of the past, gained recognition in Sunni Islam: the Hanafi madhhab, named after Abu Hanifah (d. 767); the Maliki madhhab, named after Malik b. Anas (d. 795); the Shafi'i madhhab, named after Muhammad b. Idris al-Shafi'i (d. 820); the Hanbali madhhab, named after Ahmad b. Hanbal (d. 855); the Dawudi or Zahiri madhhab, named after Dawud b. Khalaf al-Isbahani (d. 884); and the Jariri madhhab, named after Muhammad b. Jarir al-Tabari (d. 923). The projection of the institution back to the time of these jurists is anachronistic except in the case of al-Tabari, and perhaps Dawud b. Khalaf. The Dawudi and Jariri madhhab s, although important in the tenth century, dwindled and died out in the eleventh; the four remaining madhhab s survived until modern times. In general, the jurists of the madhhab s recognized each other's traditions as legitimate and their opinions on disputed legal questions as equally valid. Together, the four surviving legal madhhab s have represented Sunni legal orthodoxy, an idea confirmed by such historical developments as the establishment of four chief judge-ships, one for each madhhab, under the Mamluks (1250–1517) in Egypt and Syria. They played the crucial role in shaping legal interpretation and the transmission of legal knowledge, and at the same time provided a strong element of continuity and homogeneity in Islamic society over space and time.

Closely related to the madhhab was the institution of the madrasa, or college of law, which began in the eleventh century in Baghdad with the founding of the Nizamiyya in 1067 and subsequently spread throughout the Muslim world. The madrasa was usually a building that provided space for teaching large classes as well as lodging for students, often on an upper story. It was supported by a perpetual endowment (waqf) that generated income from the produce of agricultural land or the rent from a row of shops, for example. These funds paid the salaries of the overseer of the endowment (nazir, mutawalli), the professor of law (mudarris), the repetitor (mùid), and other staff, as well as student stipends, repairs, and other expenses. Generally, the madrasa was devoted in the endowment deed (waqfiyya) to the law of one of the four madhhab s and had one professor who taught the law of that madhhab. Stipends were also provided for students who studied the law of that particular madhhab. Madrasa s soon became the most important institutions of learning in the Muslim world. They tended to exclude the teaching of the Greek sciences, including philosophy, medicine, astronomy, and so on, relegating their teaching to private settings, and to accept the teaching of other religious sciences, such as Arabic grammar, rhetoric, hadith, scriptural commentary, and so on, but as ancillary to the study of the law. The system of legal education that developed in conjunction with the madhhab and the madrasa involved three main levels: ancillary studies in Arabic grammar, rhetoric, and related fields; intermediate study of the legal tradition of the madhhab; and advanced study on the disputed questions of the law (khilaf). Disputation and dialectic (jadal) were major foci of the advanced law student's training; they played an important role in the elaboration of the law. Certainly by the thirteenth century, but possibly earlier, the completion of legal study was recognized by the conferral of a diploma termed the ijazat il-ifta' wa'l-tadris ("authorization to grant legal responsa and teach law"), granted by a master jurist to his student.

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