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Zahiri School of Law

By:
Amr Osman
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

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Zahiri School of Law

The Ẓāhirī madhhab is a medieval Sunnī legal school that was once among the leading madhāhib in the range of its geographical distribution and reportedly the official madhhab of some Muslim dynasties.

A Brief History of the Madhhab.

Dāwūd al-Ẓāhirī (d. 883 C.E. in Baghdad, where he lived most of his life) is generally considered the founder of this madhhab, and there is evidence that he laid down the main tenets of Ẓāhirism. However, the Andalusian Ibn Ḥazm (d. 1064 C.E.) remains by far its most important scholar, and his extensive legal writings remain our main source for its legal thought. Recent studies have collected names of more than a hundred Ẓāhirī scholars in various parts of the medieval Muslim world, but biographical information about most of these scholars is scanty, and reports indicate that some of them followed other madhāhib in their legal careers as judges, for instance. By the sixteenth century, polemics of scholars belonging to other madhāhib had succeeded in alienating the Ẓāhirī madhhab, but never in completely effacing its memory.

The Legal Doctrine of the Madhhab.

The anti-Ẓāhirī polemics of medieval scholars were to a large extent a reaction to the Ẓāhirīs’ own polemics against the very idea of madhhab. Madhāhib, Ẓāhirī scholars maintained, required the blind following of the legal views of some early authority. The Ẓāhirīs insist that only the scriptural texts of the Qurʾān and the Prophet’s sunnah can serve as evidence in legal issues. Views of earlier authorities should therefore be discarded if they contradict some textual evidence. The Prophet’s deeds, considered compelling evidence in other Sunnī madhāhib, only establish recommendation for Ẓāhirīs, not obligation. Ijmā‘ (consensus) after the generation of the Prophet’s Companions cannot be ascertained and therefore cannot be a source of law. Neither can qiyās (legal analogy), for it is based only on an uncertain understanding of God’s reasons for permitting or prohibiting things and on a presumed relationship between two cases. In addition, only things that are clearly prohibited by a proven legal text are prohibited; everything else is not, and we cannot and need not find out the rational for these prohibitions or permissions.

This last point made it possible for Ẓāhirī scholars to consider lawful things prohibited in other madhāhib. Ironically, the Ẓāhirīs’ notorious reliance on textual evidence and disregard of all nontextual evidence and considerations, particularly legal analogy but also public interest, customs, convenience, and so forth, led to the perception that they engaged in “blind” following of the legal texts without consideration of their purposes (maqāṣid). As a result, some critics branded Ẓāhirism as rigid and deficient “literalism.” For these critics, ẓāhir (lit. clear or apparent) refers to the “literal” meaning of texts (hence Ẓāhirism) (it is noteworthy that Ẓāhirism is the only madhhab that is named after its legal doctrine rather than its founder.) Ẓāhirīs, said some medieval scholars, did not qualify as fuqahā’ (jurists), for fiqh (jurisprudence) requires more than the mere identification of the surface meaning of religious texts. For example, since it is “obvious” that the Qurʾānic prohibition of grape wine is due to its intoxicating effect, it follows that any intoxicant should be similarly prohibited, which the Ẓāhirīs reject (Ẓāhirīs prohibit all intoxicants on the basis of another textual evidence). But once it has been established for a Ẓāhirī scholar that something is textually prohibited, it remains immutably so regardless of what seems to be the purpose that the prohibition was meant to serve. In the view of their detractors, this failure of the Ẓāhirī scholars to grasp the spirit and objectives of legal rulings led them to “absurdities” that contradicted reason and common sense.

Contradicting “reason” is not an offense that the Ẓāhirīs would deny. Reason, in their view, amounts to nothing but the arbitrary and whimsical views of legal scholars, and these cannot be a source of law. Ẓāhirīs clearly sought to rid law of the subjectivity that led non-Ẓāhirī scholars to hold contradictory and inconsistent views, whereas Ẓāhirīs maintain that there must be only one correct answer to each legal question. This objectivity produces coherence and consistency, and these, rather than convenience and practicality, should be the features of just legal systems. To achieve this consistency, Ẓāhirīs resolved presumed textual contradictions either by rejecting the authenticity of some of texts, or by ingeniously reconciling them.

A recent study has argued that Ẓāhirism is not literalist, but resembles to a large extent American legal textualism. As legal philosophies, Ẓāhirism and textualism share fundamental views on the nature of the law, the role of the legal interpreter, and hermeneutics. Both insist on the absolute supremacy of legal texts and disregard (or so they claim) all nontextual considerations. They share views on the sharp division of labor between lawmakers who make the law and formulate it in a certain deliberate way and legal interpreters (judges and jurists) whose task is to identify the textual evidence relevant for each case and apply it faithfully, regardless of the outcome. They also agree that the only intent of the lawmaker that matters is the application of the law, not serving what the judge or jurist believes to be the objectives of the law or the interests that it seeks to protect. Further, although textualism and Ẓāhirism share with literalism assumptions about language, the attainability of the correct and intended meaning, and the ability of interlocutors to engage in meaningful communication, they differ from literalism in one crucial aspect. Unlike literalism, which assumes that texts can be interpreted independently of any context, Ẓāhirism and textualism maintain that the historical and textual contexts are indispensable in the process of identifying the intended meaning.

The Ẓāhirī Madhhab in Contemporary Islam.

The Ẓāhirī madhhab is officially recognized in some contemporary religious institutions, such as al-Azhar’s Council of Islamic Research in Egypt. Distinct Ẓāhirī views are readily adopted either in personal fatāwā or in legislation in some Muslim countries. Ibn Ḥazm’s works are regularly published in most parts of the Muslim world. Despite occasional hostile remarks about Ẓāhirism and its scholars, admiration for the faithfulness of the Ẓāhirīs to the legal texts and their concern for consistency are frequently expressed by Muslim legal scholars. In the late twentieth century a number of scholars have announced their adherence to the Ẓāhirī madhhab, collecting and publishing Ẓāhirī works and maintaining a website for “neo-Ẓāhirīs” to exchange views and writings on Ẓāhirism. These facts notwithstanding, the Ẓāhirī madhhab is still generally considered a “defunct” medieval Sunnī school of law.

Bibliography

  • Ghalbazūrī, al-, Tawfīq. Al-Madrasa al-Ẓāhiriyya fī al-Maghrib wa-l-Andalus (The Ẓāhirī School in the Maghreb and Andalus. Riyad: Dār ibn Ḥazm, 2006.
  • Goldziher, Ignaz. The Ẓāhirīs: Their Doctrine and Their History. Translated by Wolfgang Behn). Leiden, The Netherlands: E.J. Brill, 1971.
  • Maḥmūd, Aḥmad Bakīr. Al-Madrasa al-Ẓāhiriyya bi-l-Mashriq wa-l-Maghrib (The Ẓāhirī School in the Mashreq and the Maghreb). Beirut: Dār Qutayba, 1990.
  • “neo-Ẓāhirīs” website. [aldahereyah.net/forums/showthread.php?p=8134]
  • Osman, Amr. The History and Doctrine of the Ẓāhirī Madhhab. Unpublished PhD dissertation. Princeton University, 2010.
  • Sabra, Adam. “Ibn Ḥazm’s Literalism: A Critique of Islamic Legal Theory (I).” Al-Qanṭara vol. 28.1 (2007), pp. 7–40.
  • Sabra, Adam. “Ibn Ḥazm’s Literalism: A Critique of Islamic Legal Theory (II).” Al-Qanṭara 28.2 (2007), pp. 307–348.
  • Turki, Abdel Magid. Polémiques entre Ibn Ḥazm et Bāği sur les principes de la loi musulmane: Essai sur le littéralisme Ẓāhirīte et la finalité malikite. Alger: Etudes et Documents, n.d.
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