Development of Islamic Law

Various Muslim jurists and scholars have discussed the development of Islamic Law and Jurisprudence in their own ways. Mostly this has done from the point of view of Islamic history. But we are concerned here not with history but with development of law. We shall divide the whole development of Islamic law during the past 1500 years into four periods. The first period begins from the date when the Prophet Muhammad (PBUH) was inspired by the first revelation and terminates with the end of Prophetic career. The second period starts with the period of the first Caliph and covers the reign of four Caliphs. Some authors have extended this up to the end of the Bani Umayyah dynasty. The third period marks the beginning of the four Sunni schools of thought and then the fourth period begins where the period of Sunni schools of thought ends.



First Period:



The Prophet Muhammad (PBUH) was inspired by the first revelation by God. The whole Qur'an was then revealed to Him over a period of about 22 years. This is the period of prophetic career. The Qur'an became the first source of Islamic Law. It is this period during which not only was the Qur'an which became Law for us, revealed , but also were the precepts of the Holy Prophet(PBUH) made available to the community. This period of 23 years was marked by the most significant development of Islamic Law inasmuch as two primary sources, i.e, Qur'an and Traditions. It is for this reason that this period is known as the " Legislative period in Islam". The reason is that the Qur'an for Muslims has the force of Law: It is the embodiment of the dictates of the Almighty who is considered in Islam to be the supreme Legislator. The traditions of the Prophet Muhammad (PBUH) are no less important both in respect of their source as well as in their nature, as they are regarded as having in them the element of divinity.


Qur'an and Tradition, which format the basis of Islamic Law, laid down the following principles:


1. The executive authority of the government was established for the first time; that means with the promulgation of Islam and induction of the Holy Prophet (PBUH) into the position of the Prophetic assignment , the Prophet not only became the religious head of the entire Muslim community but also acknowledged as the temporal head of the people.


2. Justice, equality and universal brotherhood became the cardinal principles of Islamic Law.

3. War as an instrument of the State policy was enunciated. In other words, after the advent of Islam Prophet Muhammad(PBUH) declared that there would be no aggression and that wars shall be waged only in defense of Islam, Islamic state and Muslim community.

4. Reforms regarding the social status of women were brought about.

5. Individual private proprietary right was also recognized. Islam does not oppose the concept of individual property.


6. Contracts and their obligations were regarded sacrosanct. Promises were considered sacred. This is yet another remarkable tenet of Islamic Law that the rights and duties were thought as correlative and it was incumbent on Muslims to fulfill their contractual obligations.

7. Penal Laws were made and rights of God were separated from rights of men. Before Islam there was no distinction between rights of God and rights of men neither were there specific respective rules about punishments and their fixation.




Second Period:


The second phase of the development of Islamic Law is equally instructive and creative. Instructive because in this period, the vacuum created due to the exit of Prophet Muhammad(PBUH) from the scene was to large extent successfully filled by his able companions, creative because if not on so sound and solid a ground as was the case with divine law (Qur'an and Traditions) the law was developed by dint of hard effort and literal devotion by the Caliphs towards the ordinary sources of Islamic Law.

Speaking of the development of Islamic law in generally one should note that during A.H 11 or A.D 632, with the end of the Prophetic career, the community was left only with the Qur'an and the precepts of the Prophet (PBUH) for its guidance. The people eventually had to look to the trusted lieutenants of the Prophet (PBUH) Hazrat Abu Bakar, Umar, Usman and Ali (R.A). These pious people in turn had to decide matters in the light of the Qur'anic Injunctions and precepts of the Prophet (PBUH). If they felt a particular point was not sufficiently covered by the Qur'an or Traditions, they had to decide the matter in the light of reason. Another safe and reliable method, evolved by these companions, was the unanimous verdict of the group of the learned personalities known as Ijma. Ijma means the consensus of the learned people on any question of Law. Hence, consciously or unconsciously Ijma as a third source of Islamic Law, developed in this period. Even the election of the first caliph viz. Hazrat Abu Bakar (RA) as the chief executive of the community, was based on consensus. There was Ijma on the Qur'an and the Traditions as very sound and solid source of Islamic Law. Subsequent to the introduction of Ijma, as a method of reasoning, the use of Qiyas, i.e. analogy, also developed to a certain extent.

Hazrat Abu Bakar was, like others, known for his knowledge of and devotion to the primary sources of Islamic Law. For some time, after the death of Prophet (PBUH), since no Qazis (judges) were appointed, Abu Bakar, himself, administered justice.

It was Abu Bakar's farsightedness which prompted him to order compilation of the Qur'an. The compilation was completed during his reign. The manuscript prepared during the period of Abu Bakar (RA) was called "MUS'HAF".

To avoid possible confusion, it is said that the third Caliph got all other collections of the Qur'an destroyed retaining the one compiled by Zaid bin Thabit. This copy is considered to be the most authentic and infect this is the same Qur'an we still have amidst us.

The administration of Hazrat Umar (RA) is noted and stands out amongst the four Caliphs. Hazrat Umar (RA) was both learned as well as well balanced in his views. He was equally bold and courageous. It was He who appointed the first Qazi. This shows that he had taken steps to separate judiciary from executive. He also believed in the supremacy of Law and the independence of judiciary.


Hazrat Ali (RA), for the first time , systematically defined the powers and the jurisdiction of Qazis. He was a noted jurist like Umar. He, in fact, completed the task begun by Hazrat Umar in regard to the streamlining of the judicial machinery. This marks the end of the Caliphate, thereafter the rule of Bani Umayyah had begun: they had removed the seat of Caliphate to Damascus.


Taken as a whole, the period of Caliphate the age of rightly guided Caliph, was the golden age of Islam. It is this period which has witnessed the rise and fall of the institution of Caliphate: it is the second phase in the development of Islamic Law which is marked by the emergence of Ijma and to a certain extent Qiyas as a source of Islamic Law. The administrative decrees issued by the early Caliphs supplied answers to many legal problems.


Third Period:


We had indicated in the concluded stages of the second period that the period of Bani Umayyah had set in and the seat of activity was shifted to Damascus.Bani Umayyah were less known for their love and interest for knowledge. During this process came the downfall of this dynasty which was replaced by Bani Abbas. This dynasty was more awakened to learning and gave due encouragement developing the science of jurisprudence. It was in the reign of Bani Abbas that the four Sunni schools of law were founded.

Imam Abu Hanifah was the most out standing jurist of the four and he was responsible for developing the theory of Istehsan known as "Juristic Preference: which, eventually emerged and established itself as a source of Islamic Law.While Abu Hanifah was the first to have started the study of jurisprudence as a separate science, Imam Shafe'i was a pioneer in writing a book on jurisprudence. Hazrat Imam Malik is known by his "doctrine of public good". Imam Shafe'i accepted Qiyas and extensively used it to deduce rules of Law. It was again to the credit of Abu Hanifah that rules for the authenticity of the Traditions developed.

Imam Shafe'i was a learned personality, which the third period of Bani Abbas had produced. He also contributed his share to over all development of Islamic Law and Jurisprudence. He promoted the idea of studying Fiqh and Traditions from the technical point of view and himself worked intensively in the same direction. Hazrat Imam Malik and Ahmad bin Hanbal were also noteworthy for their services to the cause of the development of Islamic Law. As a whole this period is by far the most glittering, as in this period there came, into use economic terminology, a boom for knowledge and evolvement of new theories and formulas to meet the requirements of the time.

To sum up, we can say that in this age the compilation of Traditions was undertaken: Fiqh as a science of Islamic thought was studied, Commentaries were written both on Qur'an and Tradition and the fullest use was made for the development of legal notions.This was the last phase of the schools of thought when great teachers of Traditionary learning succeed the last Imam. The most out standing among them are known as the Imams of Tradition, as distinguished from the Imams of jurisprudence. We refer here to Abdullah Muhammad Abu Ismail al-Bukhari, Commonly known as Bukhari, who devoted his life to the scientific investigation of Traditions. Along with Bukhari, the names of Muslim Bin al Hajjaj, Tirmizi, Abu Daud, Ibn-e-Majah and Nisai are noteworthy.

Similarly the study of Qur'an and the science of its interpretation was undertaken during the fag end of this period.


Fourth Period:


After the close of third century of the Hijra, no significant work of research for the development of Islamic Law was done.The jurists who came into this period were conscious of the fact that all round development to the maximum extent had taken place. They paid attention only to such questions as had not been tackled by the Imams or their disciples. Sadru'sh Shari'ah was one of the last lawyers belonging to this age.

There has since been no significant research on Islamic Law, therefore the Law became static and its progress was retarded. The other view is that irrespective of the fact that the development of law was almost complete in the preceding age, we should not underrate the importance of the works done by the jurists of this age. In fact, this is by dint of hard labor put in by them that the intricacies of law are now known to us. We cannot, therefore, deny the services also rendered by the learned people of the fourth period.
That is why it is rightly said that if the Qur'an and Tradition are legislation, and Analogy is common law, Istihsan becomes equity.

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Be shak, Main tery liye he jeeta hoon or tery liye he marta hoon.....!(Baba Fareed)
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