Development of Muslim law and its schools
Family Law II - Mohammedan Law · Unit I · Topic 1 of 23 · 6 min read
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1. Advent of Islam and the growth of the law
Islam was preached by the Prophet Muhammad in Arabia in the early seventh century. During his lifetime there was no separate body of law: disputes were settled by the revelations of the Quran and by the Prophet's own words and conduct (the Sunna). After his death in 632 AD the community faced questions the texts did not answer directly. The jurists answered them by consensus (ijma) and by analogy (qiyas), and over the next two centuries the law was worked out by scholars rather than enacted by rulers. The science of law is called fiqh; the revealed law as a whole is the Shariat.
The first split was political. On the question of succession to the Prophet, the majority accepted the elected Caliphs (Abu Bakr, Umar, Usman and Ali) and came to be called Sunnis. A minority held that leadership belonged by divine appointment to Ali and his descendants, the Imams, and came to be called Shias. The difference later produced separate legal schools.
2. Muslim law in India
- Muslim rule. From the Delhi Sultanate to the Mughals, Muslim law (largely Hanafi) was the law of the State in criminal and civil matters. The Fatawa-i-Alamgiri, compiled under Aurangzeb, is the best-known Indian collection of Hanafi law.
- British period. Warren Hastings' plan of 1772 directed that in suits about inheritance, marriage, caste and religious usages, the laws of the Quran would apply to Muslims. Muslim criminal law, evidence and contract were gradually replaced by general statutes (the Penal Code 1860, the Evidence Act 1872, the Contract Act 1872), leaving Muslim law as a personal law of family and succession.
- Statutory consolidation. The Muslim Personal Law (Shariat) Application Act, 1937 made the Shariat the rule of decision in listed family matters, overriding contrary custom, and the Dissolution of Muslim Marriages Act, 1939 gave women statutory grounds of divorce. Later statutes are the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Muslim Women (Protection of Rights on Marriage) Act, 2019.
- Courts. Judges of the High Courts and the Privy Council, notably Mahmood J. of the Allahabad High Court and Ameer Ali J. of the Calcutta High Court and the Privy Council, shaped Anglo-Muhammadan law through decisions.
3. The Sunni schools
- Hanafi. Founded by Imam Abu Hanifa of Kufa (d. 767). Gives wide room to reasoning, analogy and istihsan (juristic preference). Developed by his two disciples, Abu Yusuf and Imam Muhammad. Most Indian Sunnis are Hanafis, and where a Sunni's school is not proved the court presumes he is a Hanafi. The Hedaya is its leading text.
- Maliki. Founded by Imam Malik ibn Anas of Medina (d. 795). Relies heavily on the practice of the people of Medina and on istislah (public interest). His Muwatta is among the earliest law books. Followed in North and West Africa. Several grounds in the 1939 Act were drawn from Maliki law because Hanafi law gave a wife almost no right to divorce.
- Shafi'i. Founded by Imam al-Shafi'i (d. 820), a pupil of Malik. He systematised the theory of sources (usul) in his Risala, giving ijma and qiyas their settled place. Followed in Egypt, South-East Asia and, in India, by many Muslims of the Kerala and Konkan coasts.
- Hanbali. Founded by Imam Ahmad ibn Hanbal (d. 855). The strictest traditionalist school, accepting even weak traditions in preference to analogy. Followed mainly in Saudi Arabia; hardly any following in India.
4. The Shia schools
- Ithna Ashari (Twelvers). The largest Shia school; believers in twelve Imams, the last of whom is in occultation. Followed in Iran and by most Indian Shias. It has two sub-schools, the Akhbari (traditionalist) and the Usuli (who allow reasoning by qualified jurists).
- Ismaili. Followers of Ismail, elder son of the sixth Imam. In India they are the Khojas (Nizari Ismailis, whose head is the Aga Khan) and the Bohras (Mustaali Ismailis, the largest group being the Dawoodi Bohras). Before 1937 both groups followed many Hindu customs in succession; the Shariat Act displaced those customs in the matters it covers.
- Zaidi. Followers of Zaid, a grandson of Husain. The Shia school closest to the Sunnis. Found in Yemen; no following in India.
5. The Motazilas
The Motazilas were a rationalist school of theology of the early Abbasid period. They held that reason is a source of knowledge alongside revelation and that the Quran was created, not eternal. They are sometimes listed as a separate school, but they are a theological movement rather than a school of law, have no followers in India and are of no practical importance in an Indian court. One line in an essay is enough.
6. Sunni and Shia law: the differences that decide answers
- Sources. Shias accept only traditions handed down through the Prophet's family, accept ijma only when it includes the Imam's view, and reject qiyas in favour of aql (reason) exercised by their jurists.
- Witnesses to marriage. Essential in Sunni law (two males, or one male and two females); not required in Shia law.
- Muta marriage. Valid only among Ithna Asharis; void for Sunnis.
- Irregular marriage. Sunni law has a middle category of fasid (irregular) marriages; Shia law treats a marriage as either valid or void.
- Marriage with a kitabia. A Sunni male may marry a Christian or Jewish woman in permanent marriage; an Ithna Ashari only in muta.
- Talaq. Shia law requires the formula to be pronounced orally before two witnesses and does not recognise talaq-ul-biddat; Hanafi law recognised it until Shayara Bano (2017) and the 2019 Act.
- Dower. Where the contract does not say whether dower is prompt or deferred, Shia law treats the whole as prompt; Sunni law splits it according to custom.
- Gifts. Hanafi law makes a gift of an undivided share (musha) in divisible property irregular; Shia law treats it as valid if possession is given.
- Wills. A bequest to an heir is valid in Shia law within the bequeathable third without the other heirs' consent; Sunni law requires their consent after the testator's death.
- Inheritance. Hanafi law prefers agnates (relations through males); Shia law groups heirs into three classes without that preference. A childless Shia widow takes nothing from her husband's land.
How this is examined
As an essay: “Trace the origin and development of Muslim law” or “Explain the schools of Muslim law.” Start with the advent of Islam and the Sunni–Shia split, set out the four Sunni and three Shia schools with founder, method and area, add a line on the Motazilas, and finish with a table of Sunni–Shia differences; that table is what lifts an answer above the average. As a short note: Hanafi school, Ismailis (Khojas and Bohras), or Shia and Sunni schools compared. The differences in section 6 are also the facts on which later problems on marriage, gifts and wills turn, so state the party's school at the start of every problem answer.
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