Historical development of Muslim law may be divided into five periods:
(a) from A.H. 1 to A.H. 10, i.e., the period covering the last ten years of the Prophet’s life,
(b) from A.H. 10 to A.H. 40, i.e., the period of the first four Caliphs,
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(c) from A.H. 40 to A.H. 300, the most important period in the development and consolidation of Muslim Law,
(d) from A.H. 300 to 1924 A.D., in the West (i.e., west of India), when Caliphate was abolished, or to the establishment of British Rule in India, a period of general decadence, and
(e) in the West, from 1924 to our times, a period of legislative codification of Muslim Law in many countries, and in India from the establishment of British rule to our times—a period of stagnation.
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The First Period:
Mahommed was born on August 29, 570 A.D. From his childhood, he was a person of serious disposition, and when he grew into adulthood, he was often found meditating. It is said that when Mahommed was about forty years old, he received his first revelation.
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But nobody would believe him except his wife Khadija, Waraka, a blind scholar, and his father-in-law, Abu Bakr, who, after the death of Mahommed, became the first Caliph. These were followed by Ali, who later became the fourth Caliph; Omar, who later became the second Caliph and Osman, who later became the third Caliph. With his band of followers, Mahommed started preaching the new faith. E5ut he and his followers were persecuted and they fled to Madina in 622 A.D., the date from which begins the Hegira era.
At Madina, Mahomed was well received. Ultimately, he succeeded in not only having a large following, but also in establishing a political organization called the Umma. But the Meccans would not spare Mahommed, and Madina was invaded by them along with the Jews. This led to several battles, in which ultimately Prophet Mahommed emerged triumphant.
The last confrontation was with the Christian armies in which the supremacy of Prophet Mahommed was established. Thus, the Prophet ruled not merely at Mecca and Madina but also over the entire region. By 632 (A.H. 10), the prophet was well in the saddle.
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Prophet Mahomed breathed his last in 633 A.D. (A.H. 11).
The period between A.H. 1 to A.H. 11—the last ten years of the prophet’s life is the most glorious and fruitful in the history of the development of Muslim Law. It was during this period that all the verses of the Koran were composed, and most of the Ahadis came into existence.
The Muslims hold that wahy (revelation) may be of two types: (i) Zahir or manifest, (ii) batin or indirect. The Koran contains the direct or manifest revelation, i.e., the Koran which is said to contain the very words of God.
Ahadis, the sayings and deeds of the Prophet, are considered to be the indirect revelations. This means that before a rule (Sunna) is deduced from a hadis, its background and social context are to be taken into consideration.
The Second Period:
Since the prophet had not appointed a successor, the best course that some of his followers thought of, was the election of a successor. The successor was named the Caliph. Abu Bakr was elected as the first Caliph, and thus came into existence the institution of the Caliphate. With the election of Abu Bakr to the high office of the Caliph, begins the second period of development of Muslim Law.
The election of Abu Bakr to the Caliphate led to turmoil and dissensions in the Muslim world, giving birth to two main factions of Muslims, the Sunnis and Shias. The Koreishi tribes split into the Ommayadas and the Hashimites. The latter were of the view that Ali was the legitimate successor to the Prophet by propinquity as well as by nomination by the Prophet himself.
Abu Bakr died in 634 A.D., two years after his election. Then Omar was elected as the second Caliph. On Omar’s assassination of 644 A.D., Osman became the third Caliph. On Osman’s assassination in 656 A.D., Ali became the fourth Caliph. He, too, was assassinated in 661 A.D.
It was during this period that the collection and edition of texts of the Koran was undertaken and completed. The final reception of the Koran took place in the reign of Uthaman. Osman’s edition of the Koran is considered to contain the most authentic text of the Koran, being free from interpolations. This is also the most orthodox period of Islam where the traditional view of hadis was propounded.
The Third Period:
With the death of Ali, the fourth Caliph begins the third period in the development of Muslim Law, and it extends to A.H. 300. On Ali’s death, his first son, Hasan, resigned in favour of Muavia, the founder of the Ommayad dynasty. Ali’s second son, Hussain, revolted and died fighting at Karbala. With this, the division of the Muslim world between the Sunnis and the Shias became final and permanent.
Muavia became the temporal and spiritual head of the Arabs. After the death of Muavia, the hereditary principle of succession was introduced in the Caliphate. The Ommayad dynasty continued to rule till its fourteenth sovereign was overthrown by the Abbasides. During the Ommayadas dynasty, the Muslim dominion extended far and wide. The Abbasides proclaimed themselves to be the spiritual head of the Muslims.
During this period came into existence the schools of Sunnis and Shias. The Sunni schools are: (i) the Kufa school or the Hanafi school named after Imam Abu Hanifa (699 A.D.—766 A.D.). It is the oldest school and it lays emphasis on the kiyas as a source of law. (ii) The Madina or the Maliki School, named after its founder, Malik ibn Anas (713-795 A.D.).
It rejects the kiyas and emphasizes the traditions and the ijmcL (iii) The Shafi School, founded by Imam Muhammad ibn Idris ash-Shafi (767-820 A.D.), who was the protagonist and propounder of the classical theory of Islamic jurisprudence.
He perfected the doctrine of ijma and founded the science of usui (iv) The Hanbali School, founded by Ahmed ibn Hanbal (780-855 A.D.), laid stress on the importance of the tradition or the sunna. He represents the extremists among the traditionalists. The Shias also split into three schools.
The first split took place after the death of the fourth Imam, Zaynul-Abdin, whose son, Zayd, was accepted as the Imam by some of the Shias, and thus arose the Zaydi School. The majority followed Imam Muhammad al Baquir, who was succeeded by Imam Jafar as Sadiq. After the death of Imam Jafar, another split took place among the Shias.
The majority followed Imam Musa Kazim. His followers are known as the Twelvers or the jthana Ashari School. The minority followed Ismail, the elder brother of Imam Musa Kazim. Thus, came into existence the third school, the Ismail School. The followers of this school are also known as the Seveners.
This period gains importance from the fact that during this period, a systematic drive was made to collect the traditions. The collections by Bukhari and Muslim are considered to be the most authentic.
The Fourth Period:
This period begins at about 962 A.D. At the beginning of this period the Abbasids were ruling the Muslim world. The Abbasids Caliphs, for the first time, used the title of the Imam, or Imam-al-Kabir, the supreme leader. The term, Imam, is used in different senses by the two schools. According to the Sunnis, the Imam is their leader, but he is a servant of the law, while, according to the Shias, he is the supreme law giver.
The Shias hold that the Imam is nominated by the previous Imam. They take the view that the Immamate descends in the direct male line of the Prophet by the Divine will. Thus, according to the Shias, the first three Caliphs were usurpers, and, therefore, are not recognized by them as such.
They consider Ali as the first rightful Caliph and the Imam, and hold that on Ali’s death the Caliphate descended to the family of Ali. Since the Shias hold the view that the Immamate comes into existence by Divine will, the Imam cannot be removed by the people.
In 1258 A.D. the Mongols invaded Bagdad, and the 37th Abbasid Caliph, Almusta sim B’lllah, was assassinated along with all the members of his family. The Caliphate, then, passed on to Abdul Kashim Ahmad, who was installed as the Caliph of the Sunni sect at Cairo in 1261 A.D. The dynasty of Abdul Kasim Ahmed continued to have the Caliphate for about 250 years.
These Caliphs were shorn off all temporal powers. In 1500 A.D., the Ottoman Ruler, Selim I, rose to power. In 1571 A.D. the Caliphate passed to Selim I by a deed of assignment. With this, Constantinople became the seat of the Caliphate, Selim I was also presented with the keys of Ka’aba by the Sherif of Mecca. In 1922, Mustapha Kemal Ataturk abolished the Sultanate of Turkey and the National Assembly at Ankara finally abolished the Caliphate in 1927.
Efforts of Jurists to Develop Law:
During this period, a sustained effort was made by the jurists of each school to develop law. The beginning of this period also marks the end of the formative period of Muslim law. Muslim law was elaborated in detail by the scholars of various schools.
This is also the period in which the gate of independent reasoning was closed. The doctrine of ijtihad or independent reasoning has played a very important role in the development of Muslim law during its formative period.
The literal meaning of ijtihad is “exerting oneself to the utmost degree to attain an object”. Technically, it came to signify the laying down of a rule of law by independent reasoning. Originally, the sphere of ijtihad was very wide.
Tufi enumerated as many as 45 principles, all derived from the Koran and the Sunna, which constituted the basis on which a mujtahid could give his opinion. In the early Muslim law, the mujtahid, i.e., those who exercised independent reasoning, were an integral part of the system.
While formulating a rule of law, a mujtahid may take into consideration the social good, or the social harmlessness, of a thing, or social welfare and amenity. In the words of Sayeed Ahmad Akbarabadi.
‘The main tasks of a mujtahid are: (a) to suggest any change or amendment, if possible, in the law prescribed by the old doctors of Islamic jurisprudence in order to meet a new situation, and (b) to find out a solution to new problems arising out of the changed social and economic conditions of the world”.
What may be considered to be the most curious development in Muslim law is the notion that remoter one goes from the founder of the school; the inferior becomes the authority of the jurist.
In this process gradually and slowly, the mujtahid was denied the privilege and authority for developing Muslim law by independent reasoning, till we find that, in or about the tenth century A.D., the ijtihad was finally banned.
This is known as the closure of the gate of independent reasoning. By 900 A.D. a stage was reached when “scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have necessary qualifications for independent reasoning in law, and that, all future activity would have to be confined to the explanation, application, and, at the most interpretation of the doctrine as it had been laid down once for all”.
Ijtihad and Taqlid:
As the gates of ijtihad were closed, another doctrine-the doctrine of taqlid came into existence. What had actually happened was that with the banning of ijtihad, process of stagnation had set in.
In the words of Fyzee, “A Muslim has to follow the law; every man in the street could not be learned in the rule of Shariat, being ignorant, he was asked to follow the opinion of those who knew better.
Those who knew better, the ulama, were denied independence of judgment in any vital matter. Hence the vicious circle of qalid’. Taqlid literally means “imitation” but it came to signify to follow the opinion of another person without knowledge of the authority for such opinion.
The doctrine of taqlid, as formulated in its final form, implies that no one is permitted to deduce rules and principles independently from the Koran, the sunna and the ijma but one must follow the rules and principles as formulated by the various recognized schools of law.
The acceptable rules and principles of law are not those which were laid down by the old masters of the schools, but are those which are found in the works of those who are considered to be the authoritative exponents of the doctrines of each school.
The doctrine of taqlid was not accepted without any opposition. Several sustained efforts were made to reject it. The Zahiri School, founded by Dawud Ibn Khalaf, was in the forefront of the movement for the rejection of the doctrine of taqlid.
The others, who offered stiff resistance, were Ibn Tumart, the founder of the Almohad movement, Ibn Taymiyya, an eminent Hanbali, his disciple Ibn Kayyim al-Jawziyya, and the Wahhabis.
However, “whatever the theory might say on ijtihad and taqlid, the activities of the later scholars after the closing of the gate of ijtihad were no less creative, within the limits set by the taqlid; they continued their efforts to develop law. New sets of facts constantly arose in life, and they had to be mastered and moulded with the traditional tools provided by the legal science.
This activity was carried on by muftis. A mufti is a specialist in law and is entitled to give an authoritative opinion on point of law or doctrine. His considered legal opinion is called the fatawa.
The fatawa have great persuasive authority, though they are binding on none, neither on the parties who obtained them nor on the Kazi who considered them. Yet the importance of the fatawa in the development of Muslim law has undoubtedly been great.
The Fifth Period:
According to Fyzee, the fifth period commences with the abolition of the Caliphate or the Sultanate. About this period, he observed: “As there is no one to execute the behests of the shariat, a new situation arises and legal fictions have to be created.
The shariat becomes a moral code and loses its juristic sanction, for how can we conceive of a law without someone to administer it and execute its decrees? Thus, with the changing time. Islamic law all over the world must now be considered in a different light, juristically.
It is submitted that the spontaniety in the development of Muslim law had been lost much earlier. The ijma and the Kiyas had spent their force as vehicles of legal development. The jurists were not allowed to formulate new rules and principles. The doctrine of taqlid, too, could not be further stretched.
Thus, a stage was reached when the vehicle of legal development had to be somewhat different from what the Muslim world had hitherto known. Looked as from this angle, the abolition of the Sultanate and the Caliphate was a natural culmination of the process which had set in earlier.
A stage was reached when the law could develop only through the process of legislation. This is precisely what happened in most of the countries, west of India. Keeping all these facts in view, the fifth period, it is submitted, should begin with the process of codification.
The Near East could no longer escape the Western influence, which had begun to make a powerful impact in the later part of the nineteenth century, when the process of codification had begun in several Muslim countries. Muhammad Kadri Pasha of Egypt was the first to undertake such a codification in respect of the Hanafi family law and the law of inheritance.
In 1876, the majalla, the family code, was enacted in Turkey. Thus, the present submission is that the fifth period should be considered to begin in 1872-76. The Muslim law of evidence was modified in Egypt by the Reglement des Mehkemehs of 1897, followed by further modifications in 1910 and 1931.
These modifications were substantially adopted by Lebanon in 1943 and by Syria in 1947. The modernist legislation has invaded many Muslim countries, west of India. Far reaching reforms in family law have been enacted in Egypt, Syria, Lebanon, Sudan, Jordan, Iraq and Libya.
Schacht very aptly remarks: ‘This legislative interference with the central part of Islamic law itself (as opposed to the silent or explicit restriction of its sphere of application by custom or by legislation) presupposes the reception of Western political ideas.
Whereas a traditional Muslim ruler must, by definition, remain the servant of the sacred law of Islam, a modern government, and particularly a parliament, with the modern idea of sovereignty behind it can constitute itself its master.
The legislative power is not any more consent with what the sharia is prepared to leave to it officially or in fact; it wants itself to determine and to restrict the sphere left to traditional Islamic law, and to modify according to its own requirements what has been left”.
The task has not been easy. It was vehemently opposed by the traditionalists, who would not permit ijtihad to anybody, and the ulama proclaimed fatwa against the modernist trends. But a breakthrough has been made, and the shariat is no longer a hindrance, even though what has been achieved is not very modern, and many modernists are not satisfied with these reforms in the Muslim countries. But, it is submitted, what matters is that the trend towards legislative modifications of the Muslim law has been firmly set.
In India, the fifth period begins with the establishment of the British rule in India. Once the Muslim rule was over, and the British rule was firmly established, process of abrogation of Muslim law, in many areas, began. The most far-reaching change was introduced in 1860, when the Muslim Criminal law was abrogated, and it was replaced by the Indian Penal Code, 1860.
Gradually and slowly, a stage was reached, when, what was left of Muslim law, was the Muslim personal law only. But what was left remained traditionally conservative. Some inroads in this law were made under the doctrine of equity, justice and good conscience, and by the process of judicial interpretation.
The Sharit Act of 1937 was passed to make the grip of Muslim law strong on all those persons who professed to be Muslims. Only one major reform has been made, viz., the Muslim Dissolution of Marriage Act, 1939, which enables a Muslim wife to sue for dissolution of marriage on certain grounds.
