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The Historical Development of

Islamic Law
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The Pre-Islamic Period
The place where Islam was born is Arabian Peninsula. This country has a land of one
million square miles (or 625,000 squares Kms) which is mainly dominated by desert and
steppe areas. It was inhibited by Bedawin tribes who were nomads and pastoralists.
They were moving from place to place looking water and pasture for their flocks of
sheep and camels. The community was based on tribe that consisted of descendants of
the same blood and was bound not only together through blood but also a strong almost
unbreakable sense of fraternity.
The tribe had rules which held it together. These rules differ from tribe to tribe so we
may say there were no uniform set of laws. This task was left to be accomplished by
Islam as we will discuss next.
The Period of the Prophet (PBUH)
The Prophet was born in 570 A.D. He lost his father and mother at his child hood. For
that reason he was looked after by his grandfather who died when the Prophet was
eight. In spite of all those lose the Prophet was strong hearted.
In 595 AD at the age of 25 he married a rich widow named Khadijah who was not simply
a wife. Rather she was a disciple. Another woman who played an important role in Islam
was Aisha. It seems why Attallah. N. wrote” Central to the Story of the birth of Islam are
two remarkable women; Khadijah, the Prophet’s first wife and disciple, and Aisha, the
girl who became his youngest wife and the source for much of hadith”
Prophet Mohammed received the first revelation through the Angel Jibril (Gabriel) in
610A.D. First he started teaching Islam to his friends and family. Then in 613 A.D he
started teaching in public. This brought him opposition which led to the boy-cott of the
Hashim, Muhammed’s clan. The purpose of that boy-cott was organized to isolate him
and expose him for attack.
This led him to seek a suitable place to spread the message without obstacles.
Therefore in 620 A.D, he began consultation with clans in Medina to facilitate his move
there. Consequently he was visited by 12 men from Medina in 621 A.D. Again in 622
A.D he was visited by a group of 75 persons who declared their support for him and his
message. This resulted in his migration from Mecca to Medina in 622 A.D. This period
of departure and emigration of Mohammed and his followers from Mecca to Medina is
known as thehijirahto Muslims [PBUH], and is the starting point of Islamic history.
The Period of the Caliphs (Khalifs)
The prophet (PBUH) died in 632. The period of the caliphs followed. It was between
632-661 A.D. Four caliphs accessed the Prophet (PBUH). They were Abu baker (573-
634 AD), Umar (584-644 AD), Uthman (577-656 AD) and Ali (600-661 AD). Now we will
discuss each caliph at a time very briefly.
Abu baker
The Prophet (PBUH) shortly before his death selected Abu-Baker to lead the Muslims in
one of the most important religious functionaries (Friday Prayer).
For “Abu baker’s designation as a leader was symbolized by the offering of baya
(Oath), a handclasp used by the Arabs to seal a contract, in this case an oath of
obedience and allegiance The reason why the Sahaba (Companions of the Prophet)
gave this baya was for the Sahaba Knew him to be the best among them.
He also demonstrated that by accomplishing the following;
He took up on himself the task of collecting the Quran. During the life time of the
Prophet the text of the Quran was preserved.
In memories
Inscription on such material as stones wood and bone
He quenched the insurgency that had arisen immediately after the Prophet’s (PBUH)
death
Islam expanded to lands of Syria, Iraq and Palestine.
He ordered the codification and collection of the traditional sayings (Hadith) of the
Prophet (PBUH) before they were forgotten with the sands of time.
Umar
He was the second caliph who stepped into the seat of leadership that was vacated
when Abu baker died in Medina in 634 AD. Before we enumerate the task he
accomplished it is worth to mention one point about Umar which describes how he was
fearsome among his tribes. Al-Misri writes “(I) bn Masud later observed, “(W) e were not
able to pray by the Kaaba until Umar became Muslim”
The following tasks were undertaken by him
Egypt and all Arabian Peninsula were added to the dominions of Islam.
12,000 Mosques were built
He related about 537 Hadith, from the Prophet (PBUH).
Dated Islamic events from the year of the Hijirah
Uthman
He was the third caliph who received the caliphate shortly after Omar’s death in AH 23.
Some of the tasks accomplished by Uthman were
Much of the Balkans, Cyprus and much of the North Africa were added to the dominions
of Islam.
The task of collection, verification and systematic compilation of the Holy Quran which
was commenced with Abu baker was completed. Thus written copies were compiled in
to one single volume. This copy was sent to all sectors of the Islamic world.
He had related 146 Hadith from the Prophet (PBUH)
Ali
He was the fourth and the last caliph. He was born in 600 AD in Mecca. He was the
cousin of the Prophet (PBUH) who latter arranged a marriage between Ali and his
daughter Fatima whom he cherished and adored
Ali transferred the capital city from Mecca to Kufa when he took office in AH.35. Some
of his attributes were he:
He was among the learnt ones among the companions
He related hundreds of Hadith
He was a diplomat and states man of the highest echelon and showed familiarity of the
highest order in the political administrate in social and legal duties a governing body
owed to its people.
The Period of Umayyad
In the previous sections we have seen how Islam brought its domain into vast areas
during the caliphate period. Thus, people within the Islamic Empire became aware of
the importance, force and wielding that political power could bring. Among many factors,
that was then one that led to the establishment of the Umayyad governance which was
first established by Mu’a Wiyah. The Umayyad dynasty stayed on power from 661 AD to
750AD.
During this period significant progress was made in Islamic Law. The public law sphere
was standardized, codified and established while the private law spheres remained
diverse. The first Islamic Jurisprudence schools, whose main purposes were to spread
and teach the message of Islam, were established
The Period of the Abbasids
The Abbasids, who are the Prophet’s (PBUH) cousins, came to the throne in 750 AD.
They did that with the help of the Persians. They accused the Umayyad for distortion
and dilution of the Islamic Law to suit the exigencies of the times without a proper
consideration and due regard to the basic tenets of Islam. What are the achievements in
Islam?
A scholarly theology evolved where in the articles and principles of Islamic faith and the
Attributes of Allah were examined and conversed about, in order to ascertain the Unity
of Allah the Most High.
The doctrine of constitutionalism was created. Thus every community was represented
by a council of state.
Legal scholars were encouraged to respect, examine and deduce the mode of operation
of the law within the Muslim Community,
Traditions of the Prophet (PBUH) were collected and the jurisprudence of the sources of
Islamic Law were codified and written.
The Quran was analyzed.
This resulted in the birth of four notable Sunni schools of legal thoughts. These are:
The school of Abu Haifa (700-795 Ad)
The school of Malik ibn Anas (713-795AD)
The school of Mohammed ibn-Idris Ash Shafi (767-820Ad)
The school of Ahmad Ibn-Hanbli (780-855Ad)
In the next two consecutive chapters we will discuss the Sources of Islamic Law and
then the school of legal thoughts.

Evolution of Muslim Law, different stages of developmet of Muslim Law.

Islamic law has been developed through evolution under different stages. The stages are five in number.
___________________________________________

First period:

The first period extend from 1. A.H. (622 A.D) to 10 A.H. (632 A.D), i.e. the last ten years of the Prophets
life. This is the most important period because Quran and Hadith are concerned with this period. At this
period, most of the legal verses of the Quran were revealed and this period is related to most important
judicial decisions and traditions of the Prophet. The Prophet used the guidance of human beings. All the
problems were solved by the Quran and Sunnah during this period. The first period of evolution of
Islamic law came to an end with the demise of the Prophet.

Second Period:

The second period extends from the date of the demise of the Prophet (632 A.D) and lasted for about a
century. Two significant works were performed during this second period –

a. Collection of Quran and Hadith.


b. Study of law as a science.

At the beginning of this period, Hazrat abu Bakar were selected as head of the state. The third caliph of
Islam, Hazrat Usman,collected and edited Quran with the help of Zaid who was a companion of Prophet.
During this period Hadith which is the second sources of Islamic law was complied in book. Hadith was
discussed at the Medina, Damascus and at Kufa. Four caliphs administered the country from 10 A.H to
40 A.H during this period. The second period came to an end in 132 A.H.

Third Period:

This period extends from 132 A.H to the third century of the Hijri years. This period is remarkable for
three events:

a. Collection of Hadith ;

b. Development of four Sunni schools; and

c. A systematic and scientific study of law .

The jurist of this period especially Abu Hanifa, Shafei and Malik formulated the principle of the science
of Usul or Islamic Jurisprudence. The main aim of the science of Usul is to interpret the texts of the
Quran, Hadith and Ijma and deuce Qiyas in the light of the three sources.

In this period, the works of compilation of Hadith was completed. Six authentic books on Hadith
including Bokhari and Muslim were complied. These books have permanent influence of Islamic
Jurisprudence. Besides the doctrine of Istihsan, Istislah were introduced in this period.

Fourth period:

This period extends forms the third century of Hijri to 1922 A.D. This period is treated as the periods of
Ijtihad and Taqlid. The classification of the Jurist or lawyers in this period was graded into seven
different categories starting from Ilmams of four schools. The later jurists hold the lower rank. In this
period a large number of eminent commentators like Tabari, Jamaksari, Baidabi, Bhajjali, fikhruddin
were born. Besides, Ibn Hammam, Ibn Nazim and Ibn Abedin made a lot of contributions to the
development of Hanafi schools.

Fifth Periods:

The fifth periods of the evolution of Islamic law began with the fifth century of the Hijri, i.e. with the
abolition of caliphate and this period has not came to an end.
Law and politics
Certain civil matters of jurisdiction for Muslims such as marriage, inheritance and waqf properties are
governed by the Muslim Personal Law which was developed during British rule and subsequently
became part of independent India with some amendments. Lack of knowledge especially by some
western writers tend to conflate Indian Muslim Personal Law with Sharia Law. Indian Muslim
personal law is not developed as a Sharia Law but as an interpretation of existing Muslim laws as
part of Common Law. The Supreme Court of India has ruled that Sharia or Muslim law holds
precedence for Muslims over Indian civil law in such matter.
Muslims in India are governed by "The Muslim Personal Law (Shariat) Application Act, 1937. It
directs the application of Muslim Personal Law to Muslims in marriage, mahr (dower), divorce,
maintenance, gifts, waqf, wills and inheritance. The courts generally apply the Hanafi Sunni law for
Sunnis; Shia Muslims are independent of Sunni law for those areas where Shia law differs
substantially from Sunni practice.
The Indian constitution provides equal rights to all citizens irrespective of their religion. Article 44 of
the constitution recommends a uniform civil code. However, attempts by successive political
leadership in the country to integrate Indian society under common civil code is strongly resisted and
is viewed by Indian Muslims as an attempt to dilute the cultural identity of the minority groups of the
country. The All India Muslim Personal Law Board was established for the protection and continued
applicability of "Muslim Personal Law", i.e. Shariat Application Act in India. The Sachar
Committee was asked to report about the condition of Muslims in India in 2005. The following
laws/acts of Indian legislation are applicable to Muslims in India (except in the state of Goa)
regarding matters of marriage, succession, inheritance, child adoption etc.

1. Muslim Personal Law Sharia Application Act, 1937


2. The Dissolution of Muslim Marriages Act, 1939
3. Muslim Women (Protection of Rights on Divorce) Act, 1986

Active Muslim political parties

 All India Majlis-e-Ittehadul Muslimeen (AIMIM), led by Asaduddin Owaisi active in states
of Telangana, Maharashtra and Karnataka.[196]
 Indian Union Muslim League (IUMN), led by E. Ahamed active in Kerala.[197]
 All India United Democratic Front (AIUDF), led by Badruddin Ajmal active in Assam state.[198]
Historical Development of
Muslim Law – 5 Main Periods
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,

(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:


Mohammed 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 Mohammed was about forty years old, he received his first revelation.

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.

Prophet Mohamed 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.
Islamic Law had passed two periods of development and two periods of decay.[1] The first
period of development occurred during the apostleship (609-632 C.E.) of the Prophet
Muhammad (peace be upon him). During this period, the formal sources of law stem from
the divine command expressed directly in the Qur'an or Sunnah.

Fiqh was not formulated as a new branch of knowledge", because at that time the Prophet
(peace be upon him) and his companions (who were unsurpassed in linguistic abilities) were
still alive.[2]

The Qur'an at first dealt with religion and morals, particularly in the early verses revealed
in Makkah.

Later, one finds legal rules relating to family organization, property, private and public
affairs, peace and war, crimes and punishments, economic affairs and judicial procedure.
All these rules are mingled with religious concepts which account for the religious influence.
These legal rules largely constitute reforms realized by Islam to counter-balance general
tendencies in pre Islamic society.

Thus, the first period saw the foundation by which Islamic legislation "significantly
translates all the social transformations required for the progress of the Ummah."[3]

The second period marked the scientific development of Fiqh as a new branch of knowledge.
Thus, after the death of the Prophet (Peace be upon him), the Qur'an and Sunnah came "to
be considered as basic sources and raw material which assigned to Islamic laws their
directive and domain."

The second period emerged with the inclusion in Shari'ah of two derivative sources, such
as Ijmah (consensus) and Qiyas (analogical reasoning) or Ijtihad (independent reasoning).

Qiyas is a mechanical application of analogy, to deduce a rule on the basis of the effective
cause in a case, and to apply the same rule to another case whenever the effective cause
for both is similar.

The jurists during the second period handled Islamic laws as a whole by the deductive
methods of Qiyas and Ijtihad. The verses of the Qur'an which are considered to provide the
basis for Qiyas and Ijtihad are Surah Saad, 38:29 and Surah Al-Ankabut, 29:69. The
greatest achievement of this period was "the establishment of the Schools of Islamic law"
(Mad Habs), marking the scientific development of Fiqh.[4]

The two periods of stagnation and decline cover "approximately six centuries starting with
the sacking of Baghdad In 1258 C.E. and the execution of the last Abbasid caliph, al-
Musta'sim, and ending around the middle of the 19th century of the Christian era:"[5]

The first period of the decline in the development of Fiqh is also known as the period
of Taqlid (the blind-following of one particular school of law). This period, characterized by
blind following, political antagonism and factionalism, led to the neglect of Ijtihad and the
evolution of the madh-habs into totally separate entities closely resembling sects.[6]

Thus, Taqlid reduced "Islamic law practically to a frozen state.”[7] The reasons for the
emergence of Taqlid include the "destruction of Baghdad as a centre of Muslim intellectual
life, unrestrained activities of the 'rational thinkers', widespread sufism, and social anarchy
in all walks of life.[8]

The second period of decline in the development of Fiqh occurred when the European
colonizers, for 150 years, "directly ruled almost the whole of Asia and Africa, which were
populated

to a large extent by the Muslims."[9] The European colonizers - the British, the French and
the Dutch alike - Imposed their own legal system on the Muslims, except those related to
family and property matters. They also "deculturized the Muslims In such a scientific
manner as to ensure that it would be difficult to recover or organize themselves into a vital
force again.”[10]

After 150 years, decolonization took place, but the Europeans left behind their own
Western legal system and culture. The new Muslim leaders who grew up under
colonialism were no doubt influenced by western thinking and values.

So, although the Muslims got their own Independence from the Western powers, in the
physical or geographic sense, they are now under new and higher forms of colonialism,
known as neocolonialism and imperialism. The main indicators, in this respect, are
predominance of the Western legal system and cultural values in most Muslim countries,
despite the superiority of Islamic law and values.

Nowadays, the Muslim masses have begun to realize that the discarding of Islamic Law, the
prevalence of Taqlid and factionalism, as well as the presence of Western legal system and
culture, have all contributed to their retrogression or backwardness. Many Muslims believe
that the Ummah can regain its power and glory by reverting to Islamic Law and values.

[1] See Abdul Ghafur Muslim, ‘Islamic law in historical Perspective: An investigation into
Problems and Principles in the field of Islamization’, According to Abu Ameenah Blial Philips,
there are six stages of development of Fiqh, namely (1) Foundation stage, which covers the
era of the Prophet. (2) Establishment stage, which covers the era of four rightly guided
Caliphs. (3) Building stage, from the founding of Umayyad Dynasty until its decline in the
middle of the 8th Century CE. (4) Flowering stage, from the rise of Abbasid Dynasty in the
middle of the 8th century CE to the beginning of the decline around the middle of the
10th century C.E. (5) Consolidation stage, from the decline of Abbasid Dynasty from about
900 CE to the murder of the last Abbasid Caliph at the hands of the Mongols in the middle
of the 13th century C.E. (6) Stagnation and decline stage from the sacking of Baghdad in
1258 CE to the present. See Evolution of the Mad Habs, op. ctl. p. 3.

[2] As S

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