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Given that Islamic law consists of different legal interpretations (ijtihads), which one will be relied upon in court?
27 Mart 2024 Çarşamba

Islamic law is a jurisprudence of jurists, that is, Sharia rulings are derived from the Quran and Hadiths by mujtahids (Islamic scholars capable of independent legal reasoning). Each mujtahid expresses what they understand from the sources of religion in a stylized legal principle.

A collection of principles deduced through ijtihad by a mujtahid is called a madhhab (school of thought). Therefore, assuming the fundamental principles are the same, there are as many legal principles as there are mujtahids for each issue. The common people will resolve their daily life issues by following the madhhab of a mujtahid. So, when a legal dispute arises and comes to court, according to which principle will it be resolved?

Each qadi (judge) looks into the case and gives judgment according to his own ijtihad. The government cannot interfere with them. There is complete judicial independence. Over time, even if they are very close to each other, different judgments began to be given on the same issue in separate courts. Although commendable from the aspect of freedom of thought, this situation was disrupting legal unity.

Don't Do That!

During the Abbasid period, Caliph al-Mansur, with the encouragement of his Iranian-origin vizier Ibn al-Muqaffa, attempted to declare Imam Malik's work "Al-Muwatta" as the official legal text. Thus, all the judges in the country would judge according to it, and the decisions of each court would be similar to each other.

However, when he discussed this during his pilgrimage, Imam Malik did not accept it. He said, "Don't do that! Because the Companions (Sahaba) of the Prophet disagreed on practical rulings of Islam (furu) and scattered to different lands. Each of them narrated hadiths in their respective regions. This means that each region has its own knowledge. It may be that they make ijtihad based on evidence that I have not heard of. The disagreement among mujtahids has been a mercy for this ummah (the Muslim community). Every scholar follows what he believes to be correct. They are all correct and all on the path of guidance."

In the subsequent years, an attempt by Caliph Harun al-Rashid in this direction also failed. However, during this caliph's reign, the position of "qadi al-qudat" (chief judge) was established. Imam Abu Hanifa's distinguished student, Imam Abu Yusuf, was appointed to this position. From then on, all the judges in the country would be appointed and supervised by this office.

Imam Abu Yusuf naturally appointed his own colleagues and students, whose scholarly qualifications he knew closely, to vacant judge positions. As a result, the majority of judges in the Abbasid state became followers of the Hanafi school. However, in places like Damascus and the Maghreb, judges from the Maliki school were also appointed, and in Egypt, judges from the Shafi'i school were appointed at times.

Legal Unity

Over time, the emergence of absolute (mutlaq) mujtahids became rare. Other than the four well-known schools of thought, the other schools of thought were also forgotten. Therefore, the practice of adhering to an official madhhab emerged to ensure legal unity. Subsequently, all Islamic states that followed implemented this practice.

In this system, judges were appointed to rule according to a specific madhhab. In almost all Islamic states, the official madhhab, following the Abbasid tradition, became the Hanafi madhhab. This was because, in this era, the Turks, who dominated the Islamic world, followed this madhhab.

An exception to this was the Ayyubid and Mamluk states ruling in Egypt, Syria, and the Hejaz, where the rulers adhered to the Shafi'i madhhab, and judges were appointed from this madhhab. The Seljuks also occasionally appointed Shafi'i scholars as judges, such as Siraj al-Din Urmavi.

Bigotry towards Madhhabs

In Muslim states such as Andalusia and the Maghreb where the entire population followed the Maliki madhhab, the Maliki madhhab was applied as the official madhhab. Similarly, in Muslim states such as Malaysia, Java, Sumatra, the Moro region in the Philippines, and the Maldives, where the entire population followed the Shafi'i madhhab, the Shafi'i madhhab was applied as the official madhhab.

After conquering Maghreb, Tunisia, and subsequently overthrowing the Almoravid state to establish dominance in Al-Andalus, the rulers of the Almohad Caliphate, Ibn Tumart (1130), Abd al-Mu'min (1163), and Abu Yusuf Yaqub (1199), prohibited the Maliki madhhab. Apart from collecting and burning books belonging to the four Sunni madhhabs, they also prohibited Maliki scholars from issuing fatwas. Only the reading of ten hadith books and making judgments according to one's own understanding were permitted in the country.

While Zahirism initially emerged as a Sunni madhhab, the deviant version of Sunni Zahirism, formulated by Ibn Hazm, was implicitly established as the de facto official madhhab in the country. The defeat suffered by the Almohads against the allied army of European Christians at the Battle of Las Navas de Tolosa in 1212 led to their withdrawal from Al-Andalus. Their dominance in Maghreb, Tunisia, and Algeria was also overthrown by the Abd al-Wadids, Hafsids, and Marinids, completely eradicated by 1269. Their successors granted freedom to the madhhabs. However, such divisive and destructive events that disrupted the unity of the Muslim population led to the loss of Muslim rule in Europe and the suffering of the people.

Official Madhhab

Official Madhhab

In the early centuries, Ottoman judges, like those in the Abbasid and Seljuk periods, were predominantly followers of the Hanafi madhhab. Naturally, they would issue judgments according to their madhhab. However, when necessary, they also sometimes issued judgments by imitating the Shafi'i madhhab. In other words, they were not obligated to issue judgments strictly according to the Hanafi madhhab.

From the 16th century onwards, during the tenure of Ebussuud Efendi as the Sheikh al-Islam, a new practice emerged. In Anatolia and Rumelia, known as Diyar-ı Rum (land of Rum) because they were taken from the Romans (Byzantines), judges were ordered to rule strictly according to the predominant opinions of the Hanafi madhhab, known as "asah al-aqwal."

In Islamic law, a representative acts according to the conditions set by the principal. Similarly, since judges acted as representatives of the caliph, this was legitimate. Regardless of the parties' madhhabs, the judge would apply his own madhhab in court. If the ruler demanded the application of a specific madhhab or ijtihad (legal interpretation), even if the judge's madhhab was different, they would act according to the ruler's command.

For instance, according to the Hanafi madhhab, a mature girl can marry a suitable man without the permission of her guardian. However, due to the increase in kidnappings of girls, in the 16th century, the opinion of Imam Muhammad al-Shaybani, who required the consent of the girl's guardian in marriage, was legalized. According to this, a girl who marries without the consent of her guardian will not be considered married in the eyes of the government.

But What About Followers of Other Madhhabs?

However, not all Muslims living in the Ottoman Empire were Hanafi. After the conquest of Arab and Kurdish regions by Sultan Selim I, Muslims from other madhhabs also became Ottoman citizens.

In the Ottoman Empire, where freedom of religion and conscience was fundamental, representatives (qadi deputies) from other madhhabs were appointed to places where people of these madhhabs lived, especially in cities like Mecca, Medina, Jerusalem, Baghdad, Aleppo, and Cairo. This era exemplifies the respectful and democratic attitude of Muslims towards human rights and freedom of thought.

For public order-related criminal and tax cases, the Hanafi judge would rule according to the Hanafi madhhab and the legal codes. However, in personal matters closely related to individuals, such as competence, guardianship, family, and inheritance cases, the principle of ruling according to the parties' madhhab was introduced. Those who wished could request a judge deputy from their own madhhab to rule in their case.

These deputies were under the authority of the Hanafi chief judge. The ruling they issued was confirmed and executed by the Hanafi judge. In places where such deputies were not available, the parties chose a scholar from their own madhhab as an arbitrator. If the parties belonged to different madhhabs, a scholar from the defendant's madhhab was selected. Alternatively, the judge himself could appoint such a person as a deputy for that case.

Fifth Madhhab

If Shiite and Kharijites who were Ottoman citizens did not take their cases to an arbitrator from their own sect, but appeared before the Ottoman judge, Hanafi jurisprudence would be applied there. This was because madhhabs outside the four Sunni schools were not officially recognized in the country. They were considered people of innovation (ahl al-bid'ah) according to the principles of the Ottoman State's official belief in Sunni doctrine (Ahl al-Sunnah).

The request made by the Iranian Shah Nadir during the reign of Sultan Mahmud I for the Imami Shia branch to be recognized as a fifth madhhab in the Ottoman Empire was rejected. A similar request during the reign of Sultan Abdulhamid II was also not accepted.

For the first time in Ottoman history, in 1911, during the Young Turk government, a judge from the Zaidi branch of Shia Islam was appointed in Yemen to represent their madhhab.

Period of Eclecticism

Since the time of the Young Turks, the traditional methods applied for centuries regarding Islamic legal matters were abandoned, and an eclectic approach was adopted. For example, the 1917 Family Law Decree was prepared by mixing the rulings of the four Sunni madhhabs.

After the collapse of the Ottoman Empire, in the states established where the majority of the population was Muslim, with the influence of modernism, the practice of following the ijtihad of a single madhhab ceased. With concerns about the adoption of Western law, a process of legal codification began with an eclectic approach.

Egypt Is Another Realm

The Fatimids from the Ismaili branch of Shiism had banned the practice of Sunni madhhabs in Egypt and North Africa. When the Ayyubids came to power, they made the Shafi'i madhhab the official madhhab. During the reign of Mamluk Sultan Baybars, from 1265 onwards, judges from the four Sunni madhhabs began to be appointed.

After the Ottoman conquest, the judges sent from the center to Egypt were from the Hanafi madhhab. However, taking into account the situation of the residents here, judges and muftis (legal advisors) from the four madhhabs were appointed to the districts of Egypt, including those in the Hejaz. In 1805, the Governor of Egypt, Muhammad Ali Pasha, established the dominance of the Hanafi madhhab parallel to Ottoman practice in Egypt, replacing this method.