ISLAMIC LAW SCHOOLS The first school to take definite form was the Hanifite, founded by Abil Hanifa (d. 767), who left behind him a definite system. He used few traditions, and preferred to go back to the Qur'an, and extract from it by reasoning the rulings which fitted his ideas. The 'Abbasids adopted his school, and the Ottoman Turks also later, and it may be said to hold now a leadership among the four legal rites.
Malik ibn Anas, the founder of the Malikite school, used tra ditions much more generally than did Abu klanifa, 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 (istigtili); 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 (ijmcr), an idea which was to have indefinite importance in the future. When the surviving compan ions of the Prophet, after his death, agreed upon any point as belonging to their store of tradition and experience, their agree ment was accepted as final.
The third school was founded by ash-Shafi'i (d. 820), who laid great stress on tradition, but gave to the principle of agreement (ijma`) its full rights. The agreement of the Muslim peoples was to be the voice of God. "My people," said a tradition from Muhammad, "will never agree in an error." So, over traditions and over the Qur'an itself, the agreement tacitly or explicitly ruled and rules. It stamps as authoritative that which the other principles lay down. He also emphasized the principle of analogy (qiyas).
The four bases thus laid down by ash-Shaffi—Qur'an; tradi tions; 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 Qur'an is only one of the sources for Muslim faith and conduct.
The fourth, the Hanbalite school, was founded by the scholars of Ahmad ibn Hanbal after his death in 885. It minimizes agree ment and analogy, is literal in its interpretations, and is now by far the smallest of the four surviving schools.
All these schools of law administer a scheme of duties, law which for centuries has had only a partial connection with the real legal systems of the Muslim peoples. Among the Wahhabis and Ibaclites alone is it the whole of law. Elsewhere, since the Umay yad period, its courts have been in great part pushed aside by others, and its scheme has come to be regarded as an expression of impossible theory, to be realized, at best, with the coming of the millennium.
For as Islam spread, it came to regions, climates, customs, where the Arabian usages no longer held. Not only were the prescripts of Medina ill adapted to the new conditions; the new people had legal usages of their own to which they clung and which nothing could make them abandon. So, as in religion the faiths of the conquered peoples were thinly veneered with Muslim phrases, in law there grew up a customary code Cada° for each country, differing from every other, which often completely ob scured and annulled the prescriptions of the shareah. The one was
an ideal system, studied and praised by the pious learned; the other was the actual working of law in the courts.
There also arose a new and specific statute law, emanating from the sovereign, and sometimes codified as in the Turkish statute law (qawanin) derived from various European codes. Thus there has grown up in almost every Muslim country at least two sys tems of courts, the one administering the shari`ah, and taking cognisance of private and family affairs, such as marriage, di vorce, inheritance, its officials also giving rulings on purely per sonal religious questions, such as details of the ritual law, the law of oaths and vows, etc. ; the other, the true law courts of the land, administering codes based on local custom and the decrees of the local rulers.
A rift almost as important entered the legal life of the Muslim lands on another side. Non-Muslim communities, settled in Muslim territory, have been uniformly permitted to administer and judge themselves according to their own customs and laws. Accordingly, to various ecclesiastical organizations, Christian and Jewish, was given over the administration of these non-Muslim sections of the community, their bishops and rabbis becoming their responsible heads and the links of contact with the Muslim rulers.
In accordance with the same principle, the European merchant, living and trading in the East, was put first by usage and finally by treaty under the jurisdiction and control of his own consul. Thus there grew up the extra-territorial law of the capitulations and conventions, by which the sanctity of the person and house hold of an ambassador is extended to every European.
There may be said, then, in short, to be three elements in the legal life of a Muslim state : the shareah, the sacred and fixed law of Islam ; the civil law, based on the usages of the different peo ples, Muslim and non-Muslim, and on statutes going back to the will of rulers; the international law of the capitulations, with a contractual sanction of its own.
In modern times, frequent demands have been made by liberal Muslim thinkers that the principle of agreement should be so extended as to render possible changes in the shareah, so as to bring it into harmony with modern conditions; but the orthodox legists have steadily resisted any such change. In 1926, the Turkish Republic solved the problem by adopting the Swiss Civil Code and the Italian Penal Code, thereby abolishing the sacred law of Islam altogether.
BIBLIOGRAPHY.-Articles Fikh and SharVah in the Encyclopaedia of Islam (bibl.) ; Abdur Rahim, The Principles of Muhammadan Juris prudence 0910 ; D. Santillana, Istituzioni di diritto musulmano (1926, bibl.).