FAMILY LAW

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON

SCHOOLS OF MUSLIM LAW

For

COURSE ON ‘FAMILY LAW’

Course: B.Com., LL.B (Hons.) 5th Semester

Submitted by

ANUJ PRATAP SINGH

B.Com LL.B/2016-17/60

Roll No. - 09

Under the Supervision of

MUKESH GAUTAM

Asst. Prof. in Law

Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mukesh Gautam who gave
me the golden opportunity to do this wonderful topic “schools of Muslim law” which also
helped me in doing a lot of Research and I came to know about so many new things I am really
thankful to them.

ANUJ PRATAP SINGH

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Table of content

1. Introduction ........................................................................................ 05
2. The background and formation of the Four Schools of Islamic Law... 05-07
3. Sunni School .............................................................................................. 07-10
4. Shia School ............................................................................................... 10-11
5. Difference between the Sunnis and Shias ............................................. 11-13
6. Conclusion .............................................................................................. 14
7. Bibliography …………………………………………………………… 15

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RESEARCH METHODOLOGY

Area: Muhammadan Law

Topic: Schools Of Muslim Law

Objective: This project work has been designed to fulfill certain underlying objectives, which
are strategic in understanding as to what the difference between the shia and sunni school

Research Questions:

1. Schools of Sunni ,
2. Schools of Shia
3. Difference between the Shia and Sunni school

Sources

 The project would look into the books, journals, texts and websites in course of compiling
this project.

Time Schedule This project has been prepared in the course of the research made during the
last twenty days.

Footnoting Style: The footnoting style that would be adopted in this paper is the NLU Uniform
style based on the Harvard Blue Book Style.

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Schools of Muslim Law

1. Introduction
Sunni and Shia are the two main sects in Islam. A minority known as Ibadi, who are neither
Sunni nor Shia, are prevalent in some parts of Arabian sub continent.

On matters concerning which no explicit command of Allah nor any authority of the Prophet to
be found, when great scholars in different area decided on their own Quay’s, the usual
differences of opinion and difference in the interpretation that each of them had their own
explanation and reasons, they gave rise to different schools or codes of law. Such differences of
opinion sometimes caused conflicting judgments. For example, it is the law according to Qur-an
and Sunna that a wife entitled to maintenance from her husband. But whether a decree can be
passed for recovery of past maintenance, the Hanafi School says that it is wrong to decree past
maintenance which is lapsed by not claiming in time. But according to Shaffie School a wife is
entitled to recover past maintenance as dues from husband and his property. Both schools have
their own reasons and arguments for their opinion.

In these circumstances the Muslim world universally accepted all schools as right path and
come to the point that to follow any one school as all are in right paths. In all these schools or
codes of law there is no error or difference in law as to the meaning of Qur-an and Sunna. There
is no difference as to the basic belief of Islam and Islamic way of life. They are not separate
sects, parties or casts. One school is not higher or lower than the other and each school is
respecting other schools. All are uniting in the matters of faith worship and prayer. It is like to
choose one line to travel in four line traffic as we cannot drive through all lines at a time.

There are four important schools of law among Sunni. They are Hanafi, Maliki, Shaffie and
Hanbali. The three importance schools of law among Shia are Isna ashari, Ismaili and Zaidy.

2. The background and formation of the Four Schools of Islamic Law

2.1 Early Period & Pre - Islamic Background

In Islamic faith, law and religion have developed a unique and very elementary
association between them. In the Western world, law and religious studies are known to
research the role of religion in relation to the State and its legal system. There is a
vast contrast between the above and the focus of said studies in Islam, where law and
religion are very closely affiliated, and as a result one cannot follow or study one
domain in separation from the other1.

1
Schacht J. & Bosworth C.E The Legacy of Islam Oxford University Press 1979 p.392-393
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There are two main concepts that express the notion of divine law in
Islam: those are fiqh and Shari’ah. In its original sense, fiqh signifies a
broad sense of understanding. It is also used in a more specific manner,
in order to express understanding towards the law. This meaning came up
around the same time with the first Islamic law texts, during the late 8th
and early 9th centuries AD. Fiqh can be expressed through all of the
following examples: explaining the law in details; creating and
institutionalising social norms; justifying social norms in relation to holy
texts; producing written texts, essays and books on the law. In contrast to
the above, Shari’ah is referred to the law of God and its divine quality.
It indicates the practical application of God’s or the Prophet’s will in
relation to law, or the application of law that can be justified by holy
texts. Therefore, one of the main concepts to grasp is that practitioners of
fiqh seek to find ways to express and apply the principles the holy of
law of Shari’ah2.

It is thought that the first three generations after Prophet Muhammad’s

death (632 AD) are the most important in relation to Islam’s cultural and
religious development. This epoch is referred to as the First Century of
Islam, but it is also a time shrouded in obscurity due to the lack of historical
evidence. During that period, many important and distinguishing
characteristics of Islamic law were founded, while the newfound Islamic
society established its own legal institutions. During most of the first century
of Islam, Islamic law did not exist by definition. As it were in the times of
Prophet Muhammad, legislation and law

Two main tendencies were formed during the creation of jurisprudential

processes in the late Umayyad and early Abbasid period4. Firstly, in order
to keep the Islamic doctrine consistent and coherent, lawful procedures
became more methodical; moreover, personal or arbitrary opinions (known as
ra’y5) subsided in order for a more analogical deduction (known as qiyas6)
to arise. The second tendency was an increasing importance of the practice
of Sunnah or established doctrine3.

2.2 THE EVOLUTION PERIOD

According to professor Joseph Schacht in his work An Introduction to

Islamic Law, there are two main schools of Islamic law, which prevailed
during the 8th and early 9th century: Ashab-al-ra’y, considered as the
rationalistic jurisprudents, and Ashab -al-hadith, which was an adversary school
known as the Traditionists.

2
Schacht J. & Bosworth C.E The Legacy of Islam Oxford University Press 1979 p.392-393
3
Sunna or Sunnah- Established custom normative preceded, conduct and cumulative tradition, typically
based on Muhammad’s example. The actions and sayings of Muhammad are believed to complement the divinely
revealed message of Qur’an. J.P. Esposito, The Oxford Dictionary of Islam, 2003.
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Joseph Schach says, tried to steer a middle course between

them, accepting the Traditionists’ stress on hadith but rejecting the crudeness
of their legal thought4.

3.Sunni School
(1) Hanafi school or Kufa school
(2) Maliki school or Medina school
(3) Shafi school
(4) Hanbali school

3.1 Hanafi School

This school is regarded as the most prominent among the four schools of Sunni law.
Hanafi School is named after his founder Abu Hanifa (born in the way of Kaba, 699-767
A.D.). Abu Hanifa’s main contribution was that instead of accepting each and every tradition
as law, he tried to find out the law in the texts of Quran itself through analogical
deduction. In this manner he preferred scientifically concluded private judgements based on
Quran over a blind reliance on the traditions. According to him the law must be formulated in
accordance with the changing needs of the society. In the absence of law in Quran it may
also be obtained by the unanimous decision of Jurists. He is therefore, rightly called the
‘upholder of private judgement’ and the founder of Muslim jurisprudence. It is one of the
salient features of this school that out of a large number of traditions, the Hanafi School
recognises only those traditions which have passed through severe test regarding their
originality. Those traditions which are not authentic are not to be accepted as law. Abu Hanifa
is said to have relied upon eighteen traditions only. On the other hand Qiyas and Ijma as
sources of law have been given prominence under this school. The doctrines of this
school being practical and most suitable to the changing conditions of the society have
always been favoured by Caliphs and the emperors.

Iraq was the home of this school. The doctrines of this school spread not only in Iraq but
also in Afghanistan, Syria, Turkey, Coastal Arabia, South Arabia, East Africa, Lower Egypt,
Central Asia and South East Asia.
Abu Hanifah (699-767) is the alias of Nu’man ibn Thabit, a scholar of
Persian descent and a Kufa native. Hanifah studied scholastics while later he
focused on deeply studying the jurisprudence of the Kufa School of law.
He earned his living by operating a business as a textile merchant. Hanifah is
said to have always used common sense and logic in the process of
practical problem solving and philosophical ethics. He also broadened his
reasoning with the use of analogy (the aforementioned qiyas) and preference
(known as istihsan). Hanifah widely used the instrument of opinion in the
process of legal thought analysis, together with analogy and preference.
This led to the characterisation of his school as “the people of opinion” (or
rationalists, ra’y), thus distinguishing his school from “the people
of traditions”, the aforementioned Traditionists. However, that does not

4
Schacht Joseph, The Origins of Muhammadan Jurisprudence Oxford: Clarendon Press, 1950 p.56-57
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imply that the Hanafi School was less meticulous concerning Islamic
traditions. Hanifah is also credited with the following words: “This knowledge
of ours is opinion; it is the best we have been able to achieve. He
who is able to arrive at different conclusions is entitled to his
opinions as we are entitled to our own.” Although Abu Hanifa does not
have a book on fiqh, scholars mention a musnad of hadiths and
5
traditions ascribed to him

Abu Hanifah’s lifework as expressed in his legal thought displayed a deep

belief in liberality and showed reverence for personal freedom. This is
something that cannot easily be found among other Islamic jurists of his
time. He was the first to establish laws in order to secure contracts,
the latter being evidence of his belief in the principle of protecting
freedom, a fact demonstrated in contracts of salam and murabahah. Salam,
the first contract, secures the immediate payment of the goods which are to
be delivered in the future, even though sales contracts usually dictate the
immediate payment of money in exchange for the goods. Murabahah, the
second type of contract, allows a trader to sell goods for their original
agreed price plus an extra predetermined profit as long as usury is not
involved in the exchange process. As for laws on personal freedom,
Hanafi allowed unmarried women who had reached their adulthood to be
able to marry without the intervention of a marriage guardian.
Nevertheless, later Hanafi doctrine restricted that right to a woman who
had previously been married. Despite the beliefs of the Kufa School (at
which he belonged) and the general legal ethos of his time, Hanafi did
not sentence compulsive shoppers and spendthrifts, and justified his action
by stating that a person who has reached adulthood is free to spend their
possessions and/or property in any way that they wish.

3.2 Maliki School

This school was established by Imam Malik-ibn-Anas (713-795A.D.) who was born at
Medina. Unlike Hanafis this school emphasises the importance of traditions as a ‘source of
law’. According to the Maliki School, as far as possible the new rules should be obtained
exclusively from the traditions. If it is not possible then only Qiyas and Ijma may be taken
into consideration. But this school recognised Ijma of only such jurists who lived in Medina.

Some of the points which make this school distinguished from others are as under:

1. Imam Malik placed importance to traditions of Prophet in interpreting the text and law but
was not a very rigid traditionalist. Apart from traditions he also allowed other sources of
propounding his doctrine. He followed the traditions and usages of the Prophet only.
2. When there was a conflict of traditions, then, he relied on the Ijma of Mujtahids.
5
Abu Zahra Muhammad, The four Imams- Their Lives, Works and Schools of Jurisprudence, Dar Al Takwa 2010
p.229
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3. Malik called Abu Hanifa’s school as Ahlal Rai (people of opinion) on the basis of using
Qiyas. He also upheld the exercise of Qiyas on the failure of other sources.
4. He recognised the principle of Muslahat (public welfare) which was
corresponding to Abu Hanifa’s Istihasan.
Malik has written an exhaustive book namely, Kitab-al-Muwatta which is an authority on the
Maliki doctrine. Another book, ‘al-Mukhtasar’ of Khalil-ibn- Ishak contains the teachings of
Imam Malik. The Risala of Ibn-Abi-Zayd is also an authority on this school.
The principles of this school spread not only in Medina, but also in North Africa, Central and
West Africa, Egypt, Spain, Moracco and the Eastern Arabian Coast.

3.3 Shafei School

This school was established by Imam Mohammad Ibn-Idris- Ash-Shafei (767-820 A.D.)
who was an eminent scholar of Islamic jurisprudence. Imam Shafi was born in
Palestine. He was related to the Prophet. He developed his doctrine at Baghdad and Cairo.
Ash Shafei also relied upon the traditions of the Prophet. He examined the traditions in the
light of legal reasoning and logic in order to get a very balanced and systematic rule of law.
Throughout his life he endeavoured to systematize the traditions. It was Ash Shafei who for
the first time incorporated usual or principles of law in his book Kitab-ul-Umm.

Some important features of his school are as follows:

1. Imam Shafi relied on the traditions more than Hanafis but also studied them more
critically than Malik. He devised ways to compromise between contradictory traditions.
2. He based his analogy on the Quran, the Sunna, the Ijma and the Qiyas.
3. He adopted a midway between Imam Abu Hanafi and Imam Malik in using traditions and
analogy. He made more use of analogy than Imam Malik.
4. He gave wide scope of Ijma than Imam Malik.
5. He was the creator of Classical theory of Islamic Jurisprudence.
6. He was also the founder of science of Usul.

The doctrine of this school spread to Lower Egypt, East Africa, South Arabia, Iraq, Persia,
Indonesia, and Malaysia.

3.4 Hanabali School

This school was established by Imam Abu Abdullah Ahmed- Ibn-Hanbal (780-855 A.D.).
Imam Hanbal was born at Bagdad. He studies under several scholars of eminence, including
Ash Shafei. His peculiar feature was that he rigidly adhered to the traditions of the Prophet. It
is, therefore, said that Hanbal was traditionist rather than a jurist. He relied so much upon the
traditions that other sources of law namely Ijma and Qiyas were neglected by him. He
recognised Ijma only of companion of the Prophet. Musnad-ul-Imam- Hanbal, is an important
book on Hanbali law. It is the collection of about 50 thousand traditions by Ibn Hanbal. At
present very few Muslims are the followers of this school. Generally the Hanbalis are in Saudi
Arabia and Qatar.
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Some of the distinguished features of this school are:

1. Imam Hanbal was more of a traditionalist than a jurist, but his interpretation of traditions
was very liberal which did not satisfy the orthodox and fanatics.
2. He did not give importance to the Ijma and Qiyas, but relied solely on the traditions of the
Prophet.
3. As a traditionalist, he perfected the doctrine of Usul.
4. He considered Ijma as confined to the Companions.
5. He permitted a very narrow scope to the doctrine of analogy. The followers of this school
are in Saudi Arabia and Qatar.

4. Shia School

(i) Ithna Asharia or Twelvers

(ii) Ismaili School -
(a) Khojas (Eastern Ismailis);
(b) Bohras (Western Ismailis)
(iii) Zyadias School or Seveners

It was the dispute over leadership of the Shia community in various stages of its development
which causes the formation of the three schools:
The important features of the Shia Schools are following:
1. The Shias accepts only those traditions which emanate from the household of the
Prophet, particularly of Ali.
2. They do not accept Qiyas (analogical deductions)
3. They affirm that Imam is the final interpreter of law.
4. They affirmed that the Ijma could be valid only when it was impossible to consult the
Imam.
5. They do not recognise the principle of equity (Istihasan), public welfare
(Muslahat) public policy and analogy.

There is no important difference between these schools in so far as the law is concerned.

4.1 Zyadis School:

The Zaydis School is the first school of Shia law. The founder of this school was Zyad, one of
the sons of the fourth Imam. The Zyadis were the first to defect from the general body of Shia
Muslims. One of the peculiar features of this school is that its doctrines incorporated some of
the Sunni principles as well. The followers of this school are not found in India, they are
mostly in Yemen and South Arabia. Imam Zyadi’s famous work is ‘Majmu-ul-Diqh’.

4.2 Ismailia School

Upon the death of Jafar Sadiq, the sixth Imam in 765 A.D. there took place the second split in
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the Shia community. He had two sons Ismail and Musa Kazim. Here again, one group
recognised Ismail as the seventh Imam but to the majority of them the younger son Musa
Kazim was the seventh Imam. Followers of Ismail were called Ismailias or the seveners
because according to them there had been only seven Imams the seventh being Ismail. In
India, they consist of the two main groups:
(a) Khojas
(b) Bohras.

4.3 Ithna Asharia School:

The Arabic term ‘Ithna Ashari’ denotes twelvers. This is the third and most prominent among
other schools of Shia law. This school has been followed by the majority of the Shia muslims
in the world. The followers of this school believe in starting from Ali there has been twelve
Imams who possessed spiritual powers. Everything that comes from the Imam is taken to be a
law.
This school is further divided into sub- sects:
(a) the Akhbari and
(b) the Usuli.
The Akhbari are orthodox and rigid traditionalists. They are guided by authoritative
expositions of laws laid down by their sages or mujtahids. They accept only certain
resolutions of former scholars. On the other hand, the Usulis are guided by the traditions and
also by their private judgements as equity in absence of Imams only. They allowed human
reason in interpreting the Quran, where Imams are absent, so in presence as Imams, equity,
public policy and Qiyas have no place in interpretation. The leading work of the Ithna
Asharia school is Sharai-ul-Islam. The Ithna-Ashari spread to Iran, Iraq, Syria, Lebanon,
Persia, Pakistan and India. In India, this sect prevails in number of princely families of
Lucknow. Next of Hanafis, Ithna-Ashari sect has the largest number of followers.

5. Difference between the Sunnis and Shias

1. Sunnis do not have formal clergy, just scholars and jurists, who may offer non-binding
opinions. Shias believe that their supreme Imam is a fully spiritual guide, inheriting some of
Mohammad’s inspiration (light). Their Imams are believed to be 02inerrant interpreters of law
and tradition.
2. On a practical daily level, Shias have a different call to prayer, they
perform wudu and salat differently including placing the forehead onto a piece of hardened
clay from Karbala, not directly onto the prayer mat when prostrating. They also tend to
combine prayers, sometimes worshipping three times per day instead of five.
3. Law of Marriage:
(1) Among the Shias temporary marriage (Muta) is lawful but it is unlawful among the
Sunnis.
(2) According to the Shias only the father and grandfather are guardians for marriage, others
are regarded as Fazuli or unauthorised persons and, consequently, marriages contracted by the
latter have no legal effect, unless ratified by the party concerned on attaining puberty. The
Sunnis recognise a long list of other guardians for marriage besides the father and the
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grandfather who can act as Wali-ul-Nikah, they being father, father’s father how highsoever,
brother, other paternal relations, mother, paternal uncle, etc.
(3) The Sunni law prescribes the presence of two male witnesses at the time of marriage
which the Shia law does not deem it a necessary condition. The Shia law requires the presence
of two witnesses at the time of dissolution of marriage, but under the Sunni law, presence of
witnesses is not necessary at the time of divorce.
(4) As regards consummation of marriage, the Sunni law presumes consummation if
there has been a valid retirement of the husband and wife into the nuptial chamber under
circumstances which leave no doubt as to sexual intercourse (Khilwat-us-Shiha). But
this doctrine of valid retirement is not recognised in Shia law. Under Shia law consummation
is presumed by actual intercourse only.
4. Dower:
Ten Dirhams is the minimum amount of dower, under Sunni law, whereas under Shia law
there is no minimum limit fixed. But under the Shia law ‘proper’ dower should not exceed
500 Dirhams. Under the Sunni law no upper limit is laid in any case.
5. Divorce (Talaq):
(i) Talaq under Sunni law may be affected orally or by a written document. Under the Shia
law a Talaq must be pronounced orally in the presence of two witnesses and a talaq
communicated in writing is not valid unless the husband is physically incapable of
pronouncing it orally.
(ii) The pronouncement of Talaq under the Shia Law must be strictly in accordance with the
Sunnat. So Talaq-ul-Biddat is not recognised under it, whereas Sunni law recognises it.
(iii) Under Sunni law, if the words of divorce used by the husband are ‘express’ the divorce
is valid even if it was pronounced under compulsion or in a state of voluntary
intoxication whereas the Shia law does not recognise divorce pronounced under such
circumstances.
6. Maternity:
Maternity under Sunni law is fixed in the woman who gave birth to the child whether from
the adulterous intercourse or of a valid contract of marriage. The Shia law, on the other hand,
distinguishes between child of fornication and child whose mother was validly married before
the conception but her husband disavowed its parentage. In the case of latter, maternity is
established in the woman while the former is deemed to have no mother at all.
7. Guardianship:
The mother under Sunni law is entitled to the custody of a boy until he has completed the age
of seven and girl until she has attained the age of puberty. Under the Shia law, the mother is
entitled to the custody of a boy until he attains the age of two years and a girl until she attains
the age of seven years. In default of her, it belongs to the father and in default of him to the
grandfather.
8. Maintenance:
Under the Sunni law the liability to maintain the father rests on his children. The sons are
liable even if the father is earning. But under the Shia law it is not obligatory to maintain if the
father is in a position to earn.
9. Gift:
A gift of undivided share (mushaa) in a property which is capable of division is irregular
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under Sunni law, unless some special conditions are satisfied. Under Shia law a gift of an
undivided share is valid, though it is a share in a property capable of partition. Similarly, Shia
law recognises a gift of a property to two or more donees as valid, though no division is made
either at the time of gift or subsequently.
10. Waqf:
(a) A waqf inter vivos is completed under Sunni law by a mere declaration of
endowment by the owner, whereas under Shia law a Waaqf inter vivos cannot be created
by a declaration. There must also be delivery of possession.
(b) Under Sunni law the settlor
(i) May provide for his maintenance out of the income of the waqf property
(ii) May reserve the whole income for himself, for his life, or
(iii) May provide for the payment of his own debts out of the income of the Waqf property.
Under the Shia law the settlor cannot reserve for himself a life-interest in the income of the
Waqf property or provide for the payment of his personal debts out of the income of the Waqf
property.

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6. CONCLUSION

The traditional schools of law discussed throughout this essay have

generally shared relationships of mutual toleration and respect, despite acts
of religious fanaticism of the past. These acts mainly took place in the
high Middle Ages and were carried out by rulers and members of the
public alike. However, the attitude of mutual tolerance dates back to the
time of the ancient schools of law reviewed above. These schools had
managed to accept their geographical differences of doctrine as natural.
As early as the second century of the hijra, there was a saying
that scholarly religious disagreement between Muslim communities (known
as ikhtilaf) was a sign of spiritual expression. However, this saying came
to be known as a saying of Prophet Muhammad much later. This mutual
tolerance between the Islamic schools of law did by no means come
easy, and went through many trials and tribulations, as each school
aimed to maintain its own doctrine unchanged and loyal to its
geographical tradition. Shafi’i’s innovative input is what enabled the
opportunity for debate on matters of principle between the schools of law
and as a result, the various schools managed to reach some common ground.
Moreover, the consensus, which is generally considered as the unifying
principle of Islam, has proved to be very successful in smoothing out the
differences of doctrine and opinion that different law schools have had,
without needing to eliminate those said differences.

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BIBLIOGRAPHY

Primary Sources :
 Muslim Family Law Ordinance, 1961 .

Secondary Source

 Tahir Mahmood & saif Mahmod, Introduction to Muslim Law, 104-108(Universal

Law Publishing,Gurgaon, Haryana, India, 2nd Edn.,2018)
 Dr. Paras Diwan, Family Law ,63(Allahabad Law Agency, Near Kingsway Camp
Delhi, 10th Edn.,2013)
 R.R. Maurya ,Mohammadan Law, 99-109 (Cental law Publication ,107-Darbhanga
Allahabad,2nd Edn.,1993)

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