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Comparative study on the law schools and overall structure of Islam and Judaism – Defining Madhhab

BS”D

 

When we take a look at the meaning and understanding of the term maḍhab, we are introduced for some short and not very informative explanations, such as a maḍhab being “a school of thought whether legal or philosophical (Bilal Philips), “a legal opinion or juristic principle adopted by a legist; a legal school” (Hallaq), “a school of thought, such as a school of law or theology” (Saeed), “’way,’ that is, one of the recognized Sunni schools of law” (Berkey).

According to these four short definitions, a maḍhab is a “school of thought,” concerning itself with either legal, philosophical or theological thoughts. Berkey states that it is a Sunni school of law, which leaves me a little baffled, since I would think it obvious that it also is used for the Shi’a ditto.

Nevertheless, I don’t quite feel that I have reached the core of the matter, still wanting to understand what constitutes, creates a maḍhab rather than just knowing what it is being defined as.

 

Hallaq attempts to define the meaning of the word, as well as the structure and evolution of the maḍhab in his Introduction to Islamic Law. The word maḍhab, he explains, holds several meaning, all of them interconnected, hinting at the following of an opinion or idea which one chooses to adopt, resulting here in the particular opinion of a jurist. Besides this definition there are three other meanings to define the word. One is as “a principle defining the conceptual juristic boundaries of a set of cases.” That is, what is the criterion for reaching a solution on a case in question. Hallaq uses here the case of misappropriation, that is, forcefully taking something. We are left with the question on how to define when that is. According to Hanbali it involves removing the object from its original place, while it merely needs to be taken hold of according to Hanafi. The definition here, that is “the conceptual juristic boundary” for the case, is defined as having to remove the item taken hold off from its place in the case of Hanbali, while it just have to be taken hold of in the opinion of Hanafi. The second meaning of the word is considering the opinion on the jurist of the highest authority in a certain school, that is, the jurist who has the last word. And the third referring to a group of jurist, of any size, who are loyal to an integral and collective legal doctrine attributed to the founder of a certain school, defined by a set of particular and distinct characteristics, not shared by other schools.

Based on this it would seem that we could get the understanding of a maḍhab as being a school, following a certain limits of opinions on definitions and how to reach these definitions, following the founder or highest authority within those limits. That is, if we relate to the Shafi’i school, then the founder of this school of thoughts is Imam Muhammad ibn Idrîs ash-Shafi’i, who established the limits of opinions and methods on the definitions and how to reach them.

If we look at the historic evolution of the maḍhab, we will have this understanding further strengthened, seeing that they were formed around what I guess can be called “a learned man,” forming study circles, which later on became more established, having formulated clear enough principles to differ them from each other.

The schools were formed in the time of the Umayyad Caliphate, where the Muslims experienced some socio-political problems, caused by a number of factors, among them the growing number of non-Arab Muslims, expanded rule, and internal struggle for power among various groups. This made it harder to establish a general consensus on questions of law, making it necessary for the local judges to make decisions based on other principles. The questions being presented for them, was typically solved while studying and discussing with their disciples or students, who would visit other study circles as well. With time some circles would attract more attention, and thereby becoming more notable. Also the area of their situation would play a factor, seeing that Mecca had one approach, traditionally being said to be focused on tradition, since the availability of people who actually had seen and talked with Muhammad, as well as their descendants, was high, while Iraq would be more based on reasoning, being somewhat distant to Mecca. It wasn’t always like that though, but true is it that the two places witnessed the creation of two distinct schools, Maliki in Mecca and Hanafi in Iraq.

 

That said, what I feel that I need to find in the Jewish counterpart are examples on individuals or groups, having some clear defined principles and methods on defining them, which makes them apart from other similar individuals and/or groups, which then created a precedent for a continued tradition formed around these principles.

This is going to be the harder part of the project I feel. There are some cases which could be the answer, though I feel that they each have some weaknesses, at least in the direct approach. One of them is the schism between the Ashkenazi and Sfaradi tradition, which both have different later legal authorities, though certainly have differing characteristics, though I feel that that is more based on tradition than principles on definitions. Another could be the Yerushalmi-Bavli schism between the two Talmuds, but I don’t know whether their difference is more based on different geographical locations than on differing principles on definitions. Yet a third example could be the Rabbinic-Karaite schisms, which was suggested me, though here I would rather think of the Sunni-Shi’a schism, rather than of the maḍâhib (maḍhab in plural), seeing that they disagree on the sources, the Karaites refusing the Oral Tradition.

So my challenge now consists in researching the various schisms and see whether any of them have any similarities to my definition and understanding of the maḍâhib. That’ll take some time for sure.

 

 

Recommended reading:

 

“An Introduction to Islamic Law,” Wael B. Hallaq. Cambridge University Press, 2010.

“A History of Islamic Legal Theories,” Wael B. Hallaq. Cambridge University Press 1997 (2008).

“The Formation of Islam: Religion and Society in the Near East, 600-1800,” Jonathan P. Berkey. Cambridge University Press, 2003.

“Islamic Thought,” Abdullah Saeed. Taylor & Francis, 2007.

“The Evolution of Fiqh,” Abu Ameenah Bilal Philips. Tawheed Publication, 1988.

“Comparing Religions through Law,” Jacob Neusner & Tamara Sonn. Routledge, 1999


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