The rise of the Abbasids brought a change, but not a great one. They had promised a return to the old religious attitudes, and the promise was formally kept. But in substance they were as much as the Omayyads, and though the state was outwardly on a pious footing, and the religious sentiment of the people was respected, the old, absolute canon law was not restored. It was made possible for more theologians and lawyers to work with the state, but an irreconcilable party still remained, and the situation was fixed as it is to this day. It is true that the struggle to adapt such a single and detailed system to all the varying conditions, climates and times of the great empire was impossible; but the failure marked the great rent in the supposed unity of Islam between the church and the world, religion and law.
Yet the Abbasids did, in their way, encourage legal studies, and under them processes and results, long pursued in private, became public. Almost within the first century of their dynasty the four legal schools, or rites, were formed and the principles established which survive to this day.
The first school to take definite form was the Hanifite, founded by Abū Ḥanīfa (d. 767), who left behind him a definite system and many enthusiastic pupils. He was a man of means, in touch with commercial, but not with practical legal life, a speculative or philosophical jurist. Being of non-Arab origin, the usage of Medina had small interest for him. He therefore used few traditions, and preferred to go back to the Koran, and extract from it by reasoning the rulings which fitted his ideas. This he called the use of analogy (qiyās); but, in his hands, it became practically legal fiction, the application of a law in some sense undreamed by its first imposer. But he had another, and still freer instrument. The effect of differences in local conditions had been early observed and admitted in general terms. Abū Ḥanīfa reduced it to a subjective formula. Under such conditions he claimed the right of preference (istiḥsān) of a ruling suited to the local needs, even when the strict analogy indicated otherwise. This met and meets with vehement protest when formally stated, but the usage of Islam has practically accepted it. His system, finally, was not developed through the exigencies of actual cases, but was worked out as a system of casuistry, though in a good sense. He tried, that is, to construct a system of rules to answer any conceivable question. After his death his pupils elaborated it still further, and accepted public office. The ‘Abbāsids adopted his school, and threw their influence on its side; its philosophic breadth and casuistic possibilities evidently commended it to them. Later, the Ottoman Turks also adopted it, and it may be said to hold now a leadership among the four legal rites. Its influence has undoubtedly tended to broaden and humanize Moslem law.
Twenty-eight years after Abū Ḥanīfa, Malik ibn Anas, the founder of the Malikite school, died at Medina. In many points his situation was precisely opposite to that of Abū Ḥanīfa, and yet his results were very similar. He was a working jurist, in practical touch with actual life; he was in the centre of the tradition of the usage of the Prophet, in the line, one might say, of the apostolic succession. He, therefore, used traditions much more generally than did Abū Ḥanīfa, and when he, under pressure, took refuge in opinion, he certainly felt that he, under his conditions, had a better right to do so than any outsider. But two of his principles marked a distinct advance and showed that he was no mere traditionalist. For one, he laid down the conception of public advantage (istiṣlāḥ); when a rule founded on even a valid analogy would work a general injury it was to be set aside; justice must not be overcome by logic. And, for the other, he laid stress on the conception of the agreement (ijmā‘), an idea which was to have indefinite importance in the future. When the surviving companions of the Prophet, after his death, agreed upon any point as belonging to their store of tradition and experience, their agreement was accepted as final. In the first instance they agreed that such had been the statement of the Prophet. That easily passed over into an agreement that such was the true Moslem view, and finally into an acceptance of the principle that the Moslem Church, when unanimous, could formulate truth—practically as in the canon of Vincent of Lérins, Quod semper, quod ubique, quod ab omnibus. But such a broadly catholic position was still in the future, and for Malik, juristic agreement meant the agreement of Medina, though there are signs that he permitted the same latitude to other places also. It was a way of allowing for local conditions rather than of reaching the voice of the Church. His law book, the Muwaṭṭa’, the earliest in our possession written by the founder of a school, has already been mentioned. It is a collection of about seventeen hundred traditions of juristic importance, arranged according to subject, with appended remarks on the usage of Medina and on his own view of each matter.
So far opinion and local usage had fully held their own, and the philosophical jurist had been free to work out his system. The difference between the istiḥsān of Abū Ḥanīfa and the istiṣlāḥ of Malik was not great; students attended the lectures of both and combined their systems. But a reaction now began, and the traditionalist party finally made itself felt. We have the inevitable rivalry between the historical-empirical and the speculative-philosophical schools of jurisprudence, rendered all the more bitter in that the historical lawyers believed, in this case, that they were defending a divine institution. There resulted, first, one of the most important schools, the Shāfi‘īte; secondly, an extremely literal school for which ash-Shāfi‘ī did not go far enough, and which has now vanished; and thirdly, the Ḥanbalite school, still surviving in small numbers, more moderately traditional than the last.
The school founded by ash-Shāfi‘ī (d. 820), a pupil of Malik, came first in order of time. The others were really revolts against the mildness of his compromise. His characteristics were a broad-minded, steady grasp of means and ends, a perception of what could and what could not be done, a willingness to admit all the tried principles in due balance, and, at one point especially, the insight of genius as to the possibilities of these principles. He laid great stress on tradition; a clear, authentic tradition he regarded as no less valid than the Koran itself. If the tradition was chronologically later than a Koranic passage and corrected that passage, he followed the tradition. But in this he was only regulating a fixed tendency. The Koran may be regarded theoretically as the first of all the sources of law and theology; practically its clear statements have been over-ridden in many cases. Most important of all, the principle of agreement (ijmā‘) came finally with him to its full rights. The agreement of the Moslem peoples was to be the voice of God. “My people,” said a tradition from Mahomet, “will never agree in an error.” And so, over traditions and over the Koran itself, the agreement tacitly or explicitly ruled and rules. It stamps as authoritative that which the other principles lay down. At the head of each section of a Shāfi‘īte law book we read, “The basis of this, before the agreement, is such and such.” But with the aid of a principle of this breadth it was easy to reject the opinion which was so objectionable to the traditionalist party. In its place he took analogy (qiyās), which, discreetly used, could serve almost the same purpose. The Koranic passage or the tradition with which an analogy was suggested should, he taught, be examined to see if there was a reason clearly stated for the command. If so, that reason would give a basis for the analogy. Analogy based on the mechanical or external could not hold.
The four bases thus laid down by ash-Shāfi‘ī—Koran; prophetic usage as expressed in traditions; analogy; agreement—have come to be accepted by all existing schools. This applies to all spheres of life, ethical, social, theological, legal, and it should never be forgotten that the Koran is only one of the sources for Moslem faith and conduct.
Few words are needed for the other, reactionary schools. One, now long extinct, was founded by a certain Dā‘ūd uẓ-Ẓāhirī, “David the Literalist,” born three or four years before the death of ash-Shāfi‘ī, and so called because he insisted upon an absolutely literal interpretation of his texts—Koran or tradition—without account of context or metaphor. In consequence he had to reject analogy, and limited agreement to that of the companions of Mahomet; the Church of Islam was to have no constructive authority. In one point he showed great sanity of judgment, namely in his rejection of the principle jurare in verba magistri, otherwise regnant in Islam. His school had long and interesting consequences, mostly theological, but is now extinct, and never took rank with the others. The Moslem world found his positions too impossible, and now no one swears to his words. The other, the Ḥanbalite school, was founded by the scholars of Aḥmad ibn Ḥanbal after his death in 885. He himself would never have revolted against his master, ash-Shāfi‘ī, but it was soon felt that his system, so far as he had any, was in essential opposition. He had been no lawyer, but a theologian and a collector and student of traditions. All his life had been a protest against speculation in divine things. Where the Koran and traditions were silent, he, too, had been silent. For this agnostic principle he had witnessed and suffered, and his standing with the people was that of a saint. Naturally, then, the last still existent school of traditionalist protest was launched in his name. It minimizes agreement and analogy, is literal in its interpretations, and is now by far the smallest of the four surviving schools. Its external history is that of a testifying and violent minority.
Other men, such as Ṭabarī, the historian and commentator, have had dreams that they, too, might join the Four Imāms (see [Imām]) as founders of legal rites, but none has succeeded. The Four remain the ultimate exponents of this canon law, and under the banner of one or other of them every Moslem must range himself. As there is a principle of unity in Islam, expressed in the alleged prophetic saying, “My people will never agree in an error,” so there is a principle of variety, also expressed in an alleged prophetic saying, “The disagreement of my people is a mercy from God.” The four rites may differ upon many points, yet the adherents of one never dream of regarding the adherents of the others as outside the Church of Islam; they are not “dissenters” in the English sense. God is merciful to his creatures, and gives them so much liberty of choice. Yet in practice this liberty is not great. The principle of swearing to the words of the master is a dead hand laid upon Islam. A man’s legal rite is generally settled by the place and other conditions of his birth, and after he has once accepted a rite, he must, if good and pious, follow it in all its details. Only the avowed sceptic or the recognized eccentric can be an eclectic.
The geographical distribution of the rites is roughly as follows: Moslems in Central Asia and northern India and the Turks everywhere are Hanifites; in Lower Egypt, Syria, southern India and the Malay Archipelago they are Shāfi‘ītes; in Upper Egypt and in north Africa, west of Egypt, they are Malikites; only the Wahhābis (q.v.) in central Arabia are Ḥanbalites. But the will of the sovereign has also had a powerful influence and has frequently dictated the legal, as well as the theological, affiliations of his subjects. The Turks, for example, have thrown their weight almost everywhere on the Hanifite side. Their policy is to appoint only Hanifite judges (see [Cadi]), although for private and personal questions they appoint and pay Muftis (q.v.) of the other rites. In other cases, with a population of mixed legal adherence, the government has been known to appoint judges of different rites.