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
Abu Hanifa (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 (_qiyas_);
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. Abu Hanifa reduced it to a subjective formula. Under such
conditions he claimed the right of preference (_istihsan_) 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 `Abbasids 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.
Public-domain text, read in full here on John Shaqi.
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