Development of Muslim Law :
The process of the development of Muslim Law may be divided into five periods and may be discussed under the following period-wise heads –
(1) The period of Quranic precepts –
This period ranges from 1 to 10 A.H. (i. e., after Hijra or between 622-632 A.D.). From the time of that memorable flight, which marks the commencement of the Hijra era. The Prophet took the full responsibilities of a temporal sovereign, first over the city of Madina and ultimately over Arabia.
Thus the ‘Hijra’ or ‘flight’ from Mecca marks the beginning of the Muslim era, for Mohammad (PBUH) rallied his followers and defeated the Mecca in the battle of Badar (A.D. 623). The ten years of success (1 A.H. to 10 A. H.) had begun. The Hijra made division in the story of mission of the Prophet ,evident in the Quran. Actually he was the ruler of the State. Most of the legal verses of the Quran were revealed during this period. The Madinah Surahs differ therefore, from the ‘Meccan Surah’.
The latter gives guidance to the individual soul and to the Prophet as warner, the former gives guidance to a growing social and political community and to the Prophet as example, law-giver and reformer.¹ During this period, most of the judicial decisions and traditions of the Prophet also came into existence. It is the belief of Muslims that Wahi (Inspiration) may be of two kinds :
(a) Zahir (manifest), (b) Batin (implied).
Quran is Zahir wahi, because Quran is written in the very words of God. Hadis is Batin wahi, (the actions, sayings, teachings and judicial decisions of the Prophet are called Hadis). Hadis wer also inspired but inspiration was indirect. With the death of Prophet the direct source of inspiration came to an end.
(2) The period of Orthodox Khilafat.-
This period begins from 10 A.H. and ends with 40 A.H. (i.e., 632 to 661 A.D.). The Prophet died without leaving any son and without appointing any successor. This question divided the Muslim community into two groups. One group was headed by the Prophet’s daughter Fatima. This group contended that Ali, who was the cousin and sonin-law of Prophet Mohammad (husband of Fatima, daughter of the Prophet) was the rightful successor of the Prophet. The other group, headed by Ayesha (widow of the Prophet and daughter of Abu Bakr) advocated the cause of election. Majority of the Muslims agreed that election should be held for the purpose of finding out the successor of the Prophet.
Thus, Abu Bakr became the first Khalifa or Caliph. He died in 634 A.D. and then Omar was elected as the second Caliph. Omar was assassinated in 644 A.D. Osman became the third Caliph by election after him. He was also assassinated in 656 A.D. Ali was then elected as the fourth Caliph. According to the Shias, Ali was the first caliph and Abu Bakr, Omar and Osman were not rightful successors, they were merely usurpers. Ali was assassinated in 661 A.D. After the death of the Prophet, his first four successors (called “Khulafai-Rashidin” or “the Just Khalifa”) carried on the Government of the Muslim Empire in much the same manner as the Prophet had done.
The earlier Khalifas were at the same time actively and avowedly assisted by an advisory council of the Ashab (companions) of the Prophet, who claimed it as repositories of thoughts and ideals of the Prophet. This period ended with the assassination of Ali the fourth Khalifa followed by the accession of Muavia (40. A.H.) and the beginning of the Ummayyad Dynasty (as the defendants of Muavia were called). This period is also called the period of Sunnah because close adherence was kept to the conduct and sayings of the Prophet. A collection of the whole Quran was made and put in writing under the third Caliaph Osman during this period.
(3) Period of theoretical study and collection –
This period ranges from 40 A. H. to the 300 A. H. During this period, in the reign of the ‘Ummayyads’ the full possibilities of the traditions as a source of law began to be realised. The articles of Law, or the “Commandments and Prohibition of God” says ‘Iban Kheldun’ “were then born in hearts of men, who knew that these maxims drew their origin from the books of God and from the doings and sayings of the Prophet.” Under the circumstances, the Traditions very soon increased to such an extent that it became not only advisable but also necessary, to make collections of them, and to separate those which were authentic, from those which were of doubtful authority.¹
Bukhari’s compilations were recognised as authoritative Ahadis. It was only during 99101 A.H. that Abu-Ibn-Shurab-az-zuhri (who died in 120 A.H.) made the first known collection of the Traditions. Abdul Malik Ibn Juraiji made collections at the same time. These collections were however arranged not according to subjects with which they dealt with but according to the name of the companions relating them, and were thus called Masnads. Till it is not the appearance of the Muwatta of Malik Ibn Anas, died in 179 A.H. that we get a Musannaf. This was a collection of Traditions arranged and classified according to subjects. This book has been called the first great Corpus of Mohammedan Law.
In the year 127 A.H. Marwan, the Ummayyad Khalifa, was defeated and dethroned and the Empire fell into the hands of Abdul Abbas-As-Saffah, the first of the Abbaside Khalifas of Baghdad. Learned men of Islam congregated in the Court of the Abbasides from all corners of the Muslim world and studied Islamic Jurisprudence. During the earlier part of this period there appeared four schools of Sunni law.
(a) Hanafi School :-
This school was named after Imam Abu Hanifa (669767 A.D.). It is the most liberal of the four schools because this school relied on the principles of Qiyas or analogical deductions. A number of scholars think that Imam-Abu-Hanifa was the founder of Qiyas; this is not correct. ImamAbu-Hanifa used Qiyas because the knowledge of Hadis had developed insufficiently by that time.
(b) Maliki School :-
This school was also named after its founder, Malik-Ibn-Anas (713-795 A.D.). This school does not accept Qiyas as source of law and gives importance to the Traditions of the Prophet and Ijma as sources of law.
(c) Shafi School :-
The founder of this School was Mohammad-ash-Shafi (767-820 A.D.). Shafi was one of the greatest jurists of Islam and the creator of the classical theory of Islamic jurisprudence. Shafi perfected the doctrine of Ijma and founded the Science of usul.
(4) Period of evolution of Ijtihad and Taqlid :-
This period begins with establishment of the four Sunni Schools (that is from the third century of the Hijra) and extends upto 1924 A.D. After the four great Imams, namely, Abu jurists of Islamic law continued the process of interpretation. During this period Hanifa, Malik Ibn Anas, Mohammed Ash-Shafi and Ibn Hanbal, the learned there emerged two parallel doctrines, namely, the Ijtihad and Taqlid. The word Ijtihad means ‘labouring hard’ or ‘studying intensely to arrive at a sound opinion or judgment’. The persons, who were doing this were known as Mujtahids.
It must, however, be noted that the authority of the Majtahid is not based on his holding any office in the State, but it is derived purely from the learning and reputation of the individual. The power of forming one’s own opinion (Ijtihad) was; however, cut down by the parallel doctrine of Taqlid which connotes “following the opinion of another person without knowledge of the authority for the such opinion.” This doctrine grew because a man on the street was ignorant could not be expected to learn the rules of Shariat and consequently he was asked to follow the opinions of those who knew it.¹
During this period, the growth and development of law was stopped. No jurist was ever afterwards recognized as having the same rank as the founder himself. The classification of the lawyers of this period is very elaborate; seven different grades are recognized, beginning from the Imams as founders down to the ordinary juris consult or mufti.²
(5) The Fifth Period (1924 A. D. to the present day) –
This period may be called Modern Period. In 1924 A.D., the Caliphate was abolished. Therefore, since 1924 A. D. there has been no Caliph who in his capacity of religious head can execute and enforce Shariat (Muslim’s religious law). Shariat has now become merely a moral and religious code of conduct and has lost its juristic sanction. In modern Islamic countries like Tunisia, Turkey, Egypt, etc., the laws have been codified in such a manner that they should fulfil the needs of modern society without losing the inherent character of Shariat.