Were the Law Schools a positive development in the history of Islam?

When tackling the question of whether something is positive or negative to its own development, one must ask if the something is necessary for it to function. Law is something communities religious or otherwise - have all agreed that we need. Islamic Jurisprudence or (fiqh) was not present in the early Muslim community, which functioned as best it could within its own boundaries. One way to understand this is through (H.L.A) Harts theory of a Legal system, in which Islam was only at its second stage, a legal system may at one stage be unborn, at a second not yet wholly independent of its mother then enjoying a healthy independent existence,. One must have a judiciary, law-enforcement and Laws in order to keep the fabrics a welldefined society sewn together. In the modern world we live in, it as also necessary to analyse how Islams interpretation of these laws has changes over time, the meanings of the words (Qiyas & ijma). Schools of theology are also of great importance because without them there would be no Islamic dogmatic ifor a schools belief. Islamic law schools are unique in their own way, since none were founded in the proper Western sense and there were different practices in each religious school (madhab). In the 4 Sunni schools, for example, each mad'hab is regarded by its counterparts as being equal. This explains how and why there used to be such a large number of Mad'habs and why surviving schools are under constant pressure to change. This paper will analyse why, on the whole, the positive facets of something that is necessary, in retrospect, out-weigh the negative facets, by unifying a people that represent the Worlds fastest growing religion, clarifying doubt with regard to religious practices, with a framework to change with the will of a people. This aspect of legal certainty (nulla poena sine lege stricta) has existed since the start of Islamic Jurisprudence in Early Islam (7th BC) continuing up until the contemporary Muslim communitys elusive search for a modern identity. One should note that before the Islamic community there were no written laws (nulla poena sine lege fora) in a traditional sense. The Jewish, sedentary, and pagan laws each running alongside each-other made it difficult to be sure of the punishment at hand - promoting scuffles amongst various communities in the Arabian Gulf. Payment of blood money was practised within some communities; wars broke out between tribes unversed in modern conflict resolution. The Islamic like the Roman Empire expanded exponentially in its formative years. Muhammad's death brought about a need for (Itjihad), a way to interpret the sacred texts of which there was only one at that time. The well-known scholar Schacht puts the situation of the Islamic community at that time into context The very term fiqh, knowledge, shows that early Islam regarded knowledge of the sacred law of the knowledge par excellence ". Close followers of Khulafah Rashidun reiterating the ways by which these religious sources should be interpreted resulted in the Hadiths and Sunna that gave spiritual counsel to Muslims. This was a huge development in the history of Islam for it unified the Arabian Gulf and commenced the reign of the Caliphs. By the 8th century and although the reliability of the narrators and tribal divisions had effectively broken the Muslim community into two (Sunni & Shia), these various sources delivered a crucial framework, positive for the interpretation of these religious branches., Imam Malik, for example professed that the Hadith was the genuine Sunnah because the companions were the only ones who could ascertain the Prophets true practices. Whereas the Imams from the Twelvers believed that divine succession was the true infallible word of god. The respective spiritual advisors (Imams), the religious voices within the community, would naturally over the following centuries acting under or in support of the various Khalifas or rulers, in some cases demonstrating how the religious schools can act as an intermediary for the power-hungry who regarded themselves as divinely inspired. Examples of this are seen as far back as Al-Mansour in Spain in the 12th century who notably had Averroes participate regularly in his courts, or Mehmet II in the Balkans who used the schools of law to codify civil and criminal laws into one body. The rise of Islamic Law and theology schools in the East not only had consequences for the Maghreb and Asia Minor, as the Christian West was belittled by the abundance of Islamic literature
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being published at the time. Harun arRashid, the 5th Abbasid caliphate well known for his work of fiction Book of one thousand and one nights with stories of the great courts of law in Bagdad, which amazed early readers of Arabic in Western Europe, is referred to as a great warrior 10 centuries later in Henry Wordsworth Longfellows poetry. The work of the Andalusian philosopher, Averroes, heavily influenced the Christian west with translations of his work appearing in universities across Europe as early as the 13th century. Averroes, a member of the Maliki School of law, greatly advanced Islamic jurisprudence during this time, Bidayat al Mujtahid wa Nihayat al Muqtasid his book on Maliki doctrine marked the beginning of the revival of ancient Philosophy. The realms of theological and law schools, as with theology and law, are so intertwined that it would be illogical to refute the influence of Aristotelian philosophy in the form of Averroism on Islamic and Christian law. The Christian West owes a lot to Averroes for the recovery of classical Greek thought and other Islamic philosophers inspired by the same sources. European centres of learning sought to grow closer to its neighbouring religion despite the military conflicts raging in the Balkans and in the Spanish peninsula for over 800 years. Modern-day Europe would certainly not have been so advanced, had it not been for the resuscitation of Aristotles work. Among the many political players in modern day Islam, there lies the branch of the fundamentalists or neo-fundamentalist whose roles and viewpoints can be extremely controversial. Neo- fundamentalists or Islamic extremists are of the opinion that they alone can uphold the true quest of their religion. For this reason they are hostile to post-modern ideas whereas Islamic fundamentalist groups such as Hezbollah in Lebanon have gained a political foothold in the region (not to mention the PLOs failure) and although they are not democratic per se, these Islamic schools appear under the Hezbollah process, in the Hezbollah-afliated nationwide network of Mustafa schools, where pupils study religion and pray for Islamic Resistance ghters. This gives examples of how Islamic law could be democratized in post-modern Islamic regions. To add insult to injury, whilst we have witnessed on the whole, the negative sides of Islamic fundamentalism, it must be noted that in the case of the Islamic Mujahedeen who saw a religious leader in Bin Laden, it was the American Government and CIA which funded and created them on their rise to power, and with whom the USA and NATO are still fighting today. Under the pretext of Neo-fundamentalism, Sharia Law was and still is at times today imposed as the only norm which should be used to regulate the behaviour of a local population - in all areas of society. although even through analogical reasoning , this theory negates any reference to a culture that could develop its self-alongside Islam or through a margin of what is strictly religious: art, music, philosophy, literature, national customs or even other cultures customs (such as new year and Christmas). This version of Islam is in violent opposition to other religions (Jews and Christians), which can amount to the assassination of the monks of Tibhirine by the GIA in 1996, because they were erecting their own Churches on Saudi soil, or more recent examples in Syria and Iraq of the persecution of primitive Christian communities. However such devastations would not have occurred within the ethno-religious community of Egyptian Coptics and their Islamic brothers or the Christians and Muslims in Iran who live together in relative peace. This could be regarded as a negative facet to the development of Islamic History, although these atrocities cannot be solely pinned down on their Madhabs. To answer the question of Islams reformism one must characterize what needs to be changed, if anything. Is it our failure to allow the formation of new Madhabs or our inadequacy to reform current ones? Regardless of these points of friction, it is certain that the Muslim community has embarked on an elusive search for a modern identity. Examples of Islams political failures lie in it being one of the last empires of its kind which still equates its laws (and their enforcement) with its religion. Unlike international law and the west, which endorses the separation of state and religion, Political Islam stands out. The sole entity which could create new Madhabs or reform them would be contemporary Islamic jurists; they are the only power governing religious interpretation of law. Unification of a people through politics has sought to solve this issue, for example, the Muslim

brotherhood in the 50's to their current ousting of Mubarak in the recent Arab spring. We are yet to witness, whether these entities are actually behind the people of Egypt or for their own political gain. Tackling this ambiguity between Sharia Law and international Law may prove difficult, many believe they would not be compatible because of the physical punishments endorsed by Sharia which international law rejects, and would therefore conflict with human rights law, however when regarding the Universal Declaration of Human Rights the law schools agree on the majority of the 30 articles, not to mention that Violence in the Koran is not endorsed. And do not take any human being's life - that God willed to be sacred - other than in [the pursuit of] justice. Although the Koran does also condone the killing of infidels most Schools of thought are against killings. The declaration of human rights does not refute that fact that there is one god all schools of laws main belief. This could be re-examined by the various schools of thought through (qiyas & ijma). This would mean that sharia law could work alongside international law. And allow a more comprehensive reexamination of Sharia allowing the current or new Madhabs to gain even greater political control in their respective regions. The Quran stipulates that Interest should not be charged O you who believe! Devour not interest, doubled and redoubled i.e. that one should not engage in usury. The Shafi school after the 9th century instituted (usul al aqilyyah), laying down rules and applications to the development of it laws. Examples of these law schools legislative codes on commercial transactions can be seen in the Ottoman Empire when they instituted the Majallah al-Ahkam al-Adliyyah (the book of rules and justice) following the Hanafi schools beliefs. The current financial crisis brought through fractional reserve lending1 and derivatives2 is forbidden which demonstrates why an Islamic approach to economics is far safer for global finances that the west might learn a thing or two. The viewpoint is that if such boundaries are put in place the economic welfare of the community is safeguarded. While the Islamic Schools of thought have their divisions and contrasts, permissibly it seems as though their existence have safe guarded Islam from attacks such as western ones in the times of colonialism. Given the Muslim community an interpretatory framework to fall back, on and allowed them to further understand and study their religion through the reinterpretation of it. Certainly the Islamic religion is growing at an unprecedented rate, the recent emergence of new entities such as Hezbollah indicates that Islam is capable of readapt ability. HAVE YOU ANSWERED THE QUESTION IN THE TITLE? NOT ENTIRELY CLEAR A FEW MORE SENTENCES SUMMING UP THE ANSWER?

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Bibliography
Islamic Law, Adaptability and Financial Development. Islamic Economic Studies, Vol. 13, NO.2 February 2006. L'Echec de l'Islam politique. Paris: Seuil, 1992. 255 pp. Makdisi, G (1981). The Rise of Colleges. Great Britain: Edinburgh University Press. ?. Schacht Christopher Melhert Ramadan, T (2009). Radical Reform. New York: Oxford University press. p50 - 54 .
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1 2

The Lending of money which an entity does not hold. This is Essentially an I.O.U which can be resold.

Hashim Kamali, M (1991). Principles of Islamic Jurisprudence. Cambridge: The Islamic Texts Society . p34 - 56. Noel James Coulson, (1994) A History of Islamic Law, Edinburgh University Press , p. 100-104. Roy, O The Failure of political Islam., The Koran verse 17:33 http://www.un.org/en/documents/udhr/ (Universal Declaration of Human Rights)

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