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.)The Arabic word for the legal school is MADHHAB, a term that has several meanings, all of which are interconnected.Generally, the word means that which is followed and, more specifically, the opinion or idea that one chooses to adopt; hence, a particular opinion of a jurist.Historically, this meaning of the term is of early provenance, probably dating back to the end of the seventh century, but certainly to the middle of the eighth.By the early ninth century, its use had become common.The term madhhab is associated with three other meanings that have emerged out of, and subsequent to, this basic usage, and which reflected the formation of schools.The first of these meanings is a principle defining the conceptual juristic boundaries of a set of cases.For example, an assumption of the Hanafis is that misappropriation, in order to obtain, must involve the unlawful removal of property from its original place, where it had been in the possession of the owner.The Hanbalis, on the other hand, define misappropriation as mere seizure of property, whether or not it is removed from its original place of ownership.Thus, taking possession of a rug by sitting on it (without removing it) is considered misappropriation by the Hanbalis, but not by the Hanafis.In terms of recovery of damages, this basic difference in definition contributed to generating significant differences between the two schools.Whereas the Hanbalis make the wrongdoer liable to the original owner for all growth of, and proceeds from, the misappropriated object, the Hanafis place severe restrictions on the ability of the owner to recover his accruing rights.The reasoning here is that the growth or proceeds of the misappropriated property were not yet in existence when the property was “removed” from the hands of the rightful owner, and since they were not in existence, no liability on the part of the wrongdoer is deemed to arise.This example illustrates a central meaning of the term madhhab as a legal doctrine concerning a group of cases – in this instance cases pertaining to the recovery of damages – which are subsumed under a larger principle.And it is in this sense that it can be said that one school’s doctrine differs, sometimes significantly, from another’s.The second meaning of madhhab is a jurist’s individual opinion when this enjoys the highest authority in the school, as distinct from the third associated sense of madhhab where it is used to refer to a group of jurists who are loyal to an integral and, most importantly, collective legal doctrine attributed to a master-jurist from whom the school is known to have acquired particular, distinctive characteristics.Thus, after the formation of the schools, jurists began to be characterized as Hanafi, Maliki, Shafii or Hanbali, as determined by their doctrinal (not personal) loyalty to one school or another.This doctrinal loyalty, it must be emphasized, is to a cumulative body of doctrine constructed by generations of leading jurists, which is to say, conversely, that loyalty is not extended to the individual doctrine of a single master-jurist.By the middle of the tenth century, or shortly thereafter, these meanings were all present, which is to say that by this time the legal schools had come into full maturity.How and when did the concept of madhhab evolve from its basic meaning into its highly developed sense of a doctrinal school? As we have already seen, the early interest in law and legal studies evolved within the environment of the STUDY CIRCLES, where men learned in the Quran and the general principles of Islam began to discuss, among other things, various quasi-legal and often strictly legal issues.By about 730 AD, such learned men had already assumed the role of teachers whose circles often encompassed numerous students interested specifically in religious law.However, by that time, no obvious methodology of law and legal reasoning had yet evolved, so that one teacher’s lecture might not have been entirely distinguishable, methodologically and as an articulated body of principles, from another’s.Even the body of legal doctrine they taught was not yet complete, as can be attested from each teacher’s particular interests.Some taught rules of inheritance, while others emphasized the law of ritual, which was a fundamental part of the law.More importantly, we have little reason to believe that the legal topics covered later were all present at this early stage.During the first half of the eighth century, with SUBSTANTIVE LAW having become more systematic, the jurists had begun to develop their own legal assumptions and methodology.Teaching and intense scholarly debates within study circles must have sharpened the methods by which jurists were doing law, which in turn led them to defend their own, individual conceptions of the law.Each jurist, on adopting a particular method, gathered around him a certain following who learned their jurisprudence and method from him.Yet, it was rare that a student or a young jurist would restrict himself to one circle or one teacher; indeed, it was not uncommon for young jurists to attend several circles in the same city.During the second half of the eighth century, aspiring jurists did not confine themselves to circles within one city, but traveled near and far in search of reputable teachers (one of the notable characteristics of learning in pre-modern Islam).Each prominent teacher attracted students who “took law” from him.A judge who had studied law under a teacher was likely to apply the teacher’s doctrine in his court, although, again, loyalty was not exclusive to a single doctrine.If he proved to be a sufficiently promising and qualified jurist, he might “sit” as a professor in his own turn, transmitting to his students the legal knowledge he gained from his teachers, but seldom without his own reconstruction of this knowledge [ Pobierz całość w formacie PDF ]