HISTORY OF ISLAMIC LEGISLATION

The history of the development of Muslim law or legislation may be divided into seven distinct periods or stages. 1. First Period/Stage [Foundation ± The Era of the Prophet Muhammad (SAW)]: The first period is the period when the Holy Prophet was alive from the year 13 before Hijrah to 10 A.H. (608/609-631/632 A.D.). During the period of revelation in the lifetime of the Prophet Muhammad, all legal ruling were derived from the following sources: a. THE HOLY QUR¶AN. This is the compilation of ALLAH¶S divine revelation which serves as the blueprint of the Islamic way of life. Many sections of the Qur¶an were revealed to resolve problems arising from the fledgling Muslim Community. This Method of gradual and experiential legislation was most suitable for the nomadic Arab tribes who were used to a life of unbridled freedom. b. THE SUNNAH OF THE PROPHET. This consists of the acts and sayings of the Prophet Muhammad and represents the application of the Qur¶anic blueprint in the daily life of a Muslim. 2. Second Period/Stage [Establishment ± The Era of the Four Rightly Guided Caliphs (Al-Khilafa Rashidun)]: The second period is the period from 10 A.H. to 40 A.H. (631/632-660/661 A.D.). The thirty years of the rightly guided Caliphs, the period of the Companions of the Prophet (Ashab) and their immediate successors (Tabi¶un). This was the so called Golden Age of Islam. This was the period where the compilation of the Glorious Qur¶an was made and the appointment of First Judge as well as the separation of the Executive branch of government and the Judiciary. This stage witnessed the rapid expansion of the Islamic Empire to include Syria, Jordan, Egypt, Iraq and Persia (now known as Iran). Hence, the early Muslim community came into immediate contact with new cultures, systems and behavioral patterns which did not have specific corresponding provisions in the Shari¶ah. Confronted with situational conflicts, the Caliphs decides as follows: a. Search first for a specific ruling in the Holy Qur¶an b. If there is no such ruling in the Holy Qur¶an, search for a ruling from the Sunnah of the Prophet c. If there is no ruling in the Sunnah, meet with the major Sahabah and obtain a unanimous agreement on the solution to the conflict. This unanimity became known as Ijma. If there is no unanimity, obtain the majority¶s position. d. If the differences are great and no significant majority can be obtained, the Caliph can make his own ijtihad, which will now be the rule in the conflict. Fiqh was developed or introduced at this period/stage which was based on actual rather than hypothetical conflicts. Later in the evolution of fiqh, this came to be called fiqh ul-waqi¶ee to distinguish it from the use of reasoning or ra¶i from the Ahl ul-ra¶i who rose to prominence in Kufa, Iraq during the Umayyad Dynasty. 3. Third Period/Stage [Building ± The Umayyad Dynasty]: The third period of Muslim law is the period of the Umayyad Caliphate from 41 A.H. to 132 A.H. (661-750 A.D.). In this period, the Muslim empire was transformed from an Islamic theocracy to an Arab secular state. In this period there arose different parties such as the Shiahs, the Kharijites and the Sunnis. The use of ijtihad increased because of the difficulty of gathering all legal scholars together in one place because of the expansion of the Islamic Empire. The Sunnah of the Prophet was no longer readily accessible to Muslim populations far from Madinah and Makkah, the two most important centers of Islam. Hadith narratives also became widespread and there grew a tendency to falsify or fabricate them to suit personal purposes. This period marked the first attempt to compile the ijtihad and ijma of the Sahabah. Clear-cut schools of legal thought arose which would later become the Madhahib or Schools of Law. Four of these madhahib will survive to become known as the Four Orthodox Schools of Islamic Law: Hanafi, Maliki, Shafi¶i and Hanbali. Scholars and students of law at this period were divided into the:

).H. From these two schools of law will branch out and develop two more. (962/950-1258 A. all the madhahib had analyzed the details of their rulings and reduced them to fundamental principles which were then codified for consolidation purposes. At this stage. his family belonged to al-Awza¶a.. He was brought up in Baghdad where he died in 270 A.H. the period of the early Abbassids. The period saw a decline in the strength of the Muslim empire which disintegrated into separate provinces.H. In this period the schools of Muslim law were developed into separate and independent schools. Fourth Period/Stage [Flowering ± The Ascent of the Abbasid Dynasty]: The fourth period in the development of Muslim law is the period from 132 A. to the abolition of the Caliphate in 1340 A. a tribe in Yemen. c. This latter group used their reasoning to arrive at possible reasons when the reason for a particular law has not been identified in the Qur¶an or Hadith. and differences between them became more developed. the Shafi¶i and Hanbali. b.H. thus separating them from each other. to the fall of Baghdad in 656 A. Competitive debates (Munaad Haraat) between the Madhahib flourished and caused negative differences among their adherents. (12581922 A.a.H.H. The tombs of the Umayyad caliphs were disturbed except for Umar bin Abdul Aziz who was allowed to rest in peace.. to 350 A. The spirit of this rivalry spread to the masses and resulted in factionalism. their scholars were forced to base their ijtihad solely on the usul or fundamental principles of their respective madhab. and died in Baghdad in 310 A. Ultimately.D. Fiqh became clearly divided into fundamental principles (usul) and secondary principles of scientific.H. This was done for fear that the Generals might become too powerful and might surpass the power of the Abassids. Al-Awza¶i School ± founded by Imam Abu¶ Amr¶ Abd al-Rahman ibn µAmr. and grew because of government support to intellectual endeavors.H.D. This was known as the ijtihad madhhabi. He was born in Ba¶labak (now in Lebanon) in the year 88 A. .H. Ahl ul-Hadith ± those who limited their deductions to available Qur¶anic and Hadith text. lived in Beirut until his death in 157 A. Other schools of thought founded at this time were: a. Fiqh took shape as an independent and systematic science at this time. The structure of the surviving madhahib became highly systematized and rigid. The sources of Islamic law were defined and differentiated from each other and the two surviving Schools of Law (Hanafi and Maliki) from the Umayyads were formalized by their chief adherents. The Tabari School ± founded by Abu Ja¶far Muhammad ibn Jarir al-Tabari. 4. This period was marked by the merciless massacre of the Umayyad clan and the treacherous liquidation of the Generals who installed the Abassids in power. the road to ijtihad has been closed and they confined themselves to following the principles laid down by the Imams to which everyone respectively belong to. He was born in Amul Tabaristan in the year 224 A. Ahl ul-Ra¶i or those who favored extensive use of deductive reasoning or ijtihad.H. independent ijtihad was discarded in favor of ijtihad limited to the fundamental principles of a particular school. philosophical and theological works (furuu). (749/750-950/961 A. The jurists of this period were called the muqallidun. hence. Sixth Period/Stage [Decline and Stagnation ± End of Abbasid and Reign of the Ottoman]: The sixth period of Muslim law is the period from 656 A.D). 5. At first he was an adherent of the Shafi¶i school and later he founded a school of his own. He is the author of the great exegesis of the Qur¶an.). This practice was based on the practice of some of the Sahabah who deduced reasons from some of the divine laws. Fifth Period/Stage [Consolidation ± Decline of the Abbasid Dynasty]: The fifth period of Muslim law is the period from 351 A. In this period. as they regarded themselves as the followers of the different schools of law. 6. and avoided reasoning out when there are no clearly defined text available b. blind following or imitation of earlier madhahib ruling was used to decide legal conflicts. Various compilations of Hadith and Fiqh were made during this period. better known as Abu Sulayman alZahiri was born in Kufah in the year 200 or 202 A. The Zahiri School ± founded by Daud ibn µAli al-Isfahani.H.H.

In this period the Sultanate of Turkey was abolished (1924). . This was the period where there are many writers. commentators and annotators arose and books on Islamic Law were published. the Muslims are not only permitted but definitely encouraged to develop side with this unchanging law. like Egypt. Islamic laws in many Muslim countries were replaced by European codes. legal analysis and reinterpretation in the mode of the ijtihad days of the past have not really prospered among Islamic legal circles. In the political sphere we find the rise of independent Muslim countries. subjects which have always form part of the central domain of Muslim Law. which would apply the spirit and the actual injunctions of the Divine Law to the social requirements of each time and place. a changeable and changing law. however. Madhahib factionalism has been significantly reduced due to the increasing tendency to study comparative fiqh and utilize juristic tools that enable a Muslim to shift from one school of law to another. Irag. Indonesia. The dynamism of fiqh was lost because many of the laws became increasingly outmoded and inapplicable in their existing forms. The Last Period/Stage: The seventh period is from 1922 to present. Eventually. It is interesting to note that while the unequivocal ordinances of the Qur¶an and Sunnah must for all times remain valid as the unchangeable Muslim Law. Morocco. Libya. the Shari¶ah has been replaced by codified secular laws in all fields of law except those relating to family law and personal status. The Federation of Malaya (now known as Malaysia). It is only in the present generation that the ground has been prepared for legislation by Muslim governments on the law of family. In recent years. Pakistan.although there are still few who still adheres to ijtihad. Sunni Islam had no recognized head and the history of Muslim law in this period is the history of its application in the separate Muslim countries. the law of succession. the law of waqf or charitable endowments. Algeria. As a result. Movement of Islamic Modernism arose which aims at adapting Islam to modern conditions by renovating those parts of its traditional equipment which are regarded as medieval and out of touch with modern times. However. In many Muslim countries. Nigeria and other Muslim states in Africa. After that. with the growing strength of European colonialism. 7. European and other western legal precepts came in to fill the void.

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