Historical Development of

Muslim Law – 5 Main Periods

Article shared by 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.

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.