LAW 499 - TOPIC 2HISTORICAL DEVELOPMENT OF ISLAMIC LAW

By PM SUE VALQUIS

HISTORY OF ISLAMIC LAW

• Six distinct periods:1) Period of Prophet Muhammad (609 – 632 AD)2) Companions of Prophet (631 – 660 A.D)3) Ummayyad Caliphate (661 – 750 AD)4) Abbasid Caliphate) (750 – 961 AD)5) (Ottoman Caliphate) (962 – 1258)6) Colonisation of Muslim territories by

European powers (1258 – 1922 AD)

Period of Prophet Muhammad

• Prophet Muhammad’s mission is to reform humanity.• Revelation of the Quran was during the lifetime of

Prophet Muhammad.• Whenever a problem arose the matter was referred

to the Prophet and he gave his ruling either in the form of revelation from Allah , i.e. a Quranic verse or in the form of his own sayings or explanation.

• Most of the verses dealing with legal matters were recorded during the last ten years in Madinah.

First period• The structure of Islamic law based on Quran and Sunnah was

completed during the life time of Prophet Muhammad. • The Quran was arranged as a book during the Prophet’s time. Among

companions who were given the task were Zaid ibn Thabit, Ali ibn Abi Talib, Uthman ibn Affan and others. The compilation however then was not systematic.

• Companions who recorded traditions of the Prophet during his lifetime were Abdullah ibn Amir ibn al-Aas, Anas ibn Malik and Hamman ibn Munabbih.

• The Quran and Hadiths do encourage people to regulate their conduct according to the moral principles revealed to the Prophet.

• Prophet’s aims was to create a model out of the conditions and materials in his time for the rest of the world and posterity.

First Period (cont)• During the lifetime of the Prophet the text of the Quran was preserved in the memories

of the Companions or being inscribed on bones,leaves or tablets of stone.• Creation of the Charter of Medina or the Medina Constitution.• Khalifah (caliphate) or vicegerency of man is by its nature rooted in the concept of trust

(amanah) which is also a Quranic principle and an attribute of political leadership in Islam. The head of state is elected by the community through consultation, nomination and bay’ah .Abu Bakar and Umar laid emphasis on the legitimacy of their leadership by resorting to shura, aqd and bay’ah.

• The cardinal duty of the govt. is to implement the Shariah. • Islamic state advocates simplicity and closeness to the people; The Prophet request that

no one should rise to stand for him upon his arrival. its is a welfare state with a centralised structure and authority.

• Zakat is collected and use for the basic needs of the needy. It is also a representative govt. which is accountable to the people.

• The constitutional theory of islam revolves around the concepts of ummah, shariah, khalifah, shura and bay’ah(oath of allegiance).

First Period (cont)• The theory of caliphate also discuss the rights of the caliph and

citizen’s duty to obey him.• The judicial system was set up. Quranic verses were referred to

but where there was no Quranic verse than qiyas was used. • Prophet Muhammad was a judge and he appointed others, to

administer the islamic principles – Ali was appointed as qadi.• Muad bin Jabal was sent to Yaman as qadi and Prophet

Muhammad interrogated him that if he does not find solutions in the Quran, or in the Sunnah than he shall should practice legal reasoning (ijtihad) or qiyas (analogical deduction).

2nd Period – Companions of Prophet

• Close adherence to the Quranic verses and Prophet’s traditions. Law was administered by the Head of stateor the Caliph.

• The fours Caliphs (Abu Bakar, Umar, Othman and Ali) were men of action.

• In the absence of direct authority, the Companions had to guide themselves by their personal reasoning (aql), having regards to the usages of the community, which had been approved or not condemned by the Prophet. An agreement or consensus among the Companions would vouch for its absolute soundness.

• Ijtihad was used to resolve issues of fiqh based on Quran and hadiths.

2nd Period (cont)

• In an expedition against imposter Musaylimah caliph Abu Bakar, at the suggestion of Umar, asked Zayd bin Thabit to officially compiled the Quran. An official edition of the Quran was compiled.

• Caliph Othman again utilised Zayd’s services to prepare the authoritative edition of the Quran based on the manuscript compiled during the period of Caliph Abu Bakar.

2nd Period (cont)• Fiqh in this period differed from the time of Prophet

Muhammad because of changes in the structure of the society, political and socio-economic development.

• Most of the fiqh issues dealt with real issues that occur in the society. The method were developed by scholars of al-Madinah.

• The companions developed certain procedures deducing the rulings of fiqh. Personal opinions were based on Quranic verses and sunnah.

• There were no mazhab during the time of the righteous caliphs.

3rd Period – Umayyad Caliphate• Death of Ali bin Abi Talib – Mu’awiyah ibn Abi Sufyan came to power. Period of

Umayyad Caliphate - From 41 A.H. to 132 A.H. or 661 A.D to 750 A.D.• Many contradictions occurred- Baitulmal was turned into personal property of

the caliphs; music and dancing girls, magicians and astrologers were amusement in the court of the Caliph. The office of Caliph became hereditary.

• The learned Muslims spread themselves to the various parts of the Muslim Empire. Dispersions of scholars resulted in the breakdown of the principle of ijma’. Emergence of the sects of Shi’ah and Khawarij.

• Persians, Syrians, Copts, Berbers flocked within the fold of Islam and intermarried with the Arabs.

• Basra and Kufa became centres of intellectual activities.• Efforts were made by Ikirimah, Nafi, Muhammad bin Sirin and Abd ar-Rahman

ibn Hurmuz to collect and transmit the traditions of the Prophet.

Ummayyad Caliphate (contd)• Differences between School of Hadith (Madrasah ahl al-Hadith) and the

School of Opinion (Madrasah ahl al-Ra’i) in deducing rulings of Fiqh. • People of Madinah were influenced by companions of Prophet Muhammad

such as Abdullah ibn Umar ibn Al-Khatab, Abdullah ibn Abbas, and Mujahid ibn Jubair, Ata ibn Abi Rabah and Tawus ibn Kisan, deduced fiqh based on available text.

• Kufah and Basrah became centres of intellectual activities. The people of Kufah preferred the views of Abdullah ibn Masud, and his followers such as Alqamah al-Nakha’i, al-Aswad ibn Yazid and Ibrahim al-Nakha’i. The people of Basrah were influenced by Abu Musa al-Ashari, Malik ibn Abbas and Muhammad ibn Sirin. These deduced fiqh based on personal reasoning.

• Non-Arabs such as Ikrimah, Nafi, Muhammad ibn Hurmuz – made efforts to collect and transmit the traditions of the Prophet.

Ummayyad Caliphate (contd).• Sunni and Syiah arose – originated from political matters and grew

into a separation of doctrinal and legal points. Shia considered Saidina Ali was wrongly deprived of the caliphate.

• The term “Shia” means faction. The Shia accepts the authority of the Quran but differ from the Sunni as regards the traditions and sources of law.

• After the death of the fourth Imam, Ali Zayn al-Abiddin in 122 A.H.( the son of Husayn) his son Zayd bin Ali was accepted as Imam. Thus rose the Zayadi School. Zayd is the author of Majmu al-Fiqh.

• Majority of Shia follows the the Imamiyah School. Two imams namely Imam Muhammad Al-Baqir and Imam Jafar as Sadiq , a man well-versed in law and science

Umayyad Caliphate (contd)• Syrian School is Awzai’ School.• The real basis of legal doctrine in the ancient schools is

consensus of the scholars. • The central idea of legal theory was that the living tradition

of the school was represented by the constant doctrine of its authoritative representatives – two aspects presented were retrospective and contemporaneous.

• The consensus of scholars , representing the accepted doctrine in each generation , expressed the contemporaneous aspect of the living tradition of each school.

4th period – Abbasid Caliphate • Founded by Caliph Abu Abbas • Abbasid Caliphate ruled from 750 A.D till 961 A.D. or 132 A.H till 350

A.H.• Caliphate last till the 4th century. The birth of the four schools of thought

– Imam Abu Hanifah, Imam Malik, Imam Shafii and Imam Ahmad bin Hanbal.

• Compilation of hadiths began seriously.• Caliph al-Mansur consulted Imam Malik to use the Muwatta as the state

constitution however Imam Malik turn him down.• Caliph Harun al-Rashid requested Imam Abu Yusuf (disciple of Abu

hanifah) to draft law related to administration of land and the Imam wrote the book called Kitab al-Kharaj. Imam Abu Yusuf was appointed as Chief Judge .

Abbasid Caliphate (contd)• States of North Africa and Spain split from the Abbasid

Empire. The empire further expand to include Persia, India and Southern Russia.

• Capital of the empire move from Damascus (Damsik) to Baghdad.

• Among others who embarked on the compilation of Hadiths were: Ibn Jurayj in Makkah, Sufyan al-Thauri in Kufah, Imam al-Auza’I in Sham, Hammad ibn salamah and laith ibn Sad in Basrah, Jarir ibn Abdul Hamid and Ibn Mubarak in Khursan and Ibn Ishak and Imam Malik ibn Anas in Madinah.

Abassid Caliphate (cont)• Shia movement was active.• The sixth Imam was Jafar as-Sadiq (died 148 A.H.) He was followed by

Imam Musa Qasim and through him 6 other imams emerged and they were called the Twelve Imams (Ithna ‘Ashari). Among the Ithna ‘Ashari jurists was Muhammad bin Yaqub ar-Razi Kulini who wrote al-Kafi.

• Those who followed the elder brother of Imam Musa Qasim , namely Imam Ismail became known as the Ismailis. Nu’man bin Muhammad bin Mansur ibn Haiyyan, an Ismailis, wrote the Da’aim al-Islam.

• Another sect of the Ismailis that arose in Egypt in 1026 was the Fatimids. When the Fatimids fell in Egypt , Yaman became the center for the Mustali branch which spread to India. In 1588 the Bohora in Yaman did not recognised Daud head of the Indian branch as head of the Yaman sect and Yaman set up a new sect with Sulayman as head and Daud is recognised as a deputy for the branch in India.

Abbasid Caliphate (contd)

• The fundamental difference between Shia and Sunni systems is the doctrine of Imamat developed by the Shia which is different from the Sunni concept of Khalifa.

• The Imam is the final interpreter of law on earth. He is a leader of divine right because he is the decendant of the Prophet or Ali. The Twelve Imams are of Divine essence. He is the Ghaib and Muntazar. He live and is deadless and will appear at a preordained time to fill the earth with justice.

Abbasis Caliphate (contd)

• Majority of Shia belongs to Ithna ‘Ashari School which is followed in Iran, Iraq and India.

• In 250 A.H., Hasan bin Zayd and Qasim bin Ibrahim founded a Zaydi School at the South of the Caspian Sea.

• In India there are two sects of Shia – Akhbari and Usuli.

5th Period – Decline of Abassid Caliphate

• From 351 A.H to 656 A.H. or 962 A.D. – 1258 A.D. Till the downfall of Baghdad at the hands of Mongols

• Disintegration of the Empire into separate provinces. • The schools of Muslim Law developed into separate schools.

The views of Imams were followed. Rivalry and sectarianism grew. Qadis and judges appointed tend to regard themselves as belonging to a particular school of law and confine himself to the doctrines of the school he belongs.

• Jurists of this period is called murajjihin (followers of views of the founders of school). Consolidation of views of the founders.

Decline of Abbasid Caliphate• From the Mazhab Hanafi - Shams al-Aimmah Abu Bakar

Muhammad bin Ahmad as-Sarakhsi (died in 483 A.H. or 1090 A.D.) wrote the Mabsut; Abu Husayn Ahmad bin Muhammad al-Quduri (died in 428 A.H. or 1036) wrote the Mukhtasar.

• Mazhab Shafii – Abu al-Ma’ali Abd al-Malik bin Muhammad Abd’ Allah al-Juwayni (died 478 A.H. – 1085 A.D.) wrote the Nihayat al-Matlab;Muhyiudin Abu Zakariya Yahya al-Qizami al-Dimashqi an-Nawawi (died 676 A.H. – 1277 A.D. ) wrote the Minhaj at-Talibin , the Rawdah and the Majmuk.

Decline of the Abassid Caliphate• Mazhab Maliki – Ubayd Allah bin Abdurrahman bin Abu

Zayd al-Qairawani (d. 386 A.H. or 996 A.D.) wrotr Kitab an-Nawadir and the Risalah.

• Mazhab Hanbali – Abd al-Aziz bin Jafar (d. 363 A.H. or 974 A.D.) wrote the Muqni; Muwattaaq ud-din bin Qudamah (d. 620 A.H. or 1223 A.D.) wrote Mughi.

• Shia School – Shayhk Muhammad bin Muhamad al-Mufid (d. 413 A.H.) wrote Fiqh ar-Rida and AlMughni’a fil Fiqh; Jafar bin al-Hasan al-Hilli (d. 676A.H. ) wrote Sharai al-Islam.

• Zahiri School – Abu Muhammad Ali bin Ahmad bin Said ibn Hazm (d 456 A.H. – 1065 A.D. wrote the Muhalla.

6th Period – Ottoman Caliphate From 1258 A.D. till 1922

• Jurists of this period are called muqaliddin – followers of different schools of thought, they occupied themselves in determining which of the conflicting versions of the schools, was correct in the event of difference of opinion and whose view should be taken as representing the law.

• They felt that all essential questions has been thoroughtly discussed and a consensus was effected that no one should ijtihad. The denial of ijtihad brought with it the unquestioning acceptance of doctrines of established schools (Taqlid). A jurist of this period is to obey and is denied the use of independent judgment.

Ottoman Caliphate

• Jurists of the period were:• Ibn Hazm (died 456 A.H./1064 A.D.) wrote Kitab

Al-Muhalla.• Ibn Qayyim Al-Jawziyyah d. 751 A.H./1321 A.D.) • Ibn Hajar al’Asqalani (d.852 A.H. /1448 A.D.)

wrote Al-Fath al-Bari and Bulugh al-Maram.• Shaykh Muhammad Abduh (d. 1905 A.D.) and

Shaykh Muhammad Rashid Rida (d. 1935) editor of al- Manar.

Ottoman Caliphate• Ibn Taymiyyah (661 A.H. to 728 A.H.) from the Hanafi

School reject the Taqlid practice. He calim his writings follow the Quran and the Sunnah and did not think it wrong to apply qiyas or reasoning by analogy in arriving at his arguments. His disciple was Ibn Qayyim (d 751 A.H. /1350 A.D.)

• The teachings led to the Wahabi movement which started in 1157 A.H/1744 A.D.) when Muhammad Abd al-Wahhab (1703 – 87) , with the support of the House of Ibn Sa’ud, began a revival campaign on the puritan Hanbali School and anti-sufi policies of Ibn Taymiyyah.

Wahhabi movement• Condemned saint worship and other sufi innovations as heresy

and infidelity and attacked the orthodox schools for their compromises with these innovations. To restore the primitive purity of the faith the Saudi princes took up arms against their neighbours and conquer Central and Eastern Arabia, turned against the Ottoman princes in the North and the shariffs of Makkah in the Hijaz.

• Karbala in Iraq was sacked in 1802, and mekah was captured in 1806. the Governor of Egypt, Muhammad Ali took up arms against them on behalf of the Sultan of Turkey. And in 1818 the Wahhabi movement was broken. The Saudi prince, Abd Al-Aziz created the kingdom of Saudi Arabia.

Wahhabi movement• In its original phase it shocked the conscience of the Muslim

community by the intolerance it displayed against saint-worship but also against accepted orthodox rites and schools. By holding them guilty of infidelity and excluding them from the status of true believers, the early Wahhabis lost the support of the orthodox Muslims. But by challenging the contamination of pure Muslim monotheism by the infiltration of animistic practices and pantheistic notions, the Wahhabis had revitalised the whole Muslim world.

• In the 19th century Wahhabis revolt against an apostate Muslim government, those govts which fell more and more under European influence and control.

Wahabbi movement• Revivalist Jamal ud-Din Afghani (1839- 1897) stroved all his

energies to bring inspiration and a popular programme to the pan-Islamic movement by reinstating the basis of the Muslim community in terms of nationalism. Pan-Islamism was politically aimed against European penetration. Jamal ud-din also attackedthe abuses within Islam and the evils of Muslim Governments. Muslims should purify themselves from religious errors and compromises and that Muslim scholars should be abreast of modern current thoughts and that a Muslim state should stand out as the political expression and vehicle of sound Quranic orthodoxy.

Wahhabi movement

• Jamal ud-Din Afghani’s pupil is Shaykh Muhammad Abduh (1849 – 1905) who is most influential and helped to isolate the religious element in the reform movement from the emotional influences of the revolutionary or nationalist programme. As a young teacher in al Azhar he tried to introduce a broader and more philosophical conception of religious education.

India• Movements were led by Shariat Allah and Sayyid Ahmad

against the Mughal Empire and the British.• One of the leaders of modernist reform movement was Shah

Wali Allah of Delhi (1703 – 1763).• He saw the decline of the Mughal Empire.• Though a Sufi himself, he attacked the corrupted Sufi

practice. He dispproved of blind taqlid or adherence to particular Imam and recommends adoption of the best opinion of the four schools.

• Shariat Allah and Sayyid Ahmad of Bareilly preached puritanism and revolt against saint worship.

India (contd)• Sir Sayyid Ahmad Khan (1817 -1898) assert the true justification

of Islam to modern scientific studies. He opened a college and in 1920 this college became Muslim University of Aligarh and moved to reevaluate the social ethics of the Muslim community.

• Jamalud-Din al-Afghani disagreed with him.• Syed Amir Ali (1849 – 1928) popularised the new liberal

theology and ethics and wrote a book called The Spirit of Islam i.e. self-esteem of muslim in facing the western world.

• Sir Muhammad Iqbal (1876 – 1938) – looked into sufism philosophy and published a book called Reconstruction of Religious Thought in Islam.

Indonesia

• Kiyai Haji Ahmad Dahlan of Jogjakarta founded the Muhamadiyah ( a Muslim organisation) which set up schools, public libraries, hospitals, poor homes and orphanages; created a Muslim information service, managed waqf funds and translated Muslim literature to native dialects.

• Most students studied at Azhar University or in Makkah.Two Shafii texts widely used in Indonesia are Tuhfah and Nihayat.

Abolition of the Ottoman Caliphate

• Abolition of the Caliphate is evident with the abolition of the Sultanate of Turkey in 1924.

• Colonisation of previous Islamic territories by certain European powers and Shariah is replaced by codified secular law in all fields except those relating to family law and personal status. Among codes introduced were the Commercial Code 1850, Land Code 1858, Criminal Code, the Code of Commericial Procedure and Civil Procedure Code. All these were based on foreign codes in text, spirit and arrangement.

• Ottoman law of Family Rights 1917 was introduced in Turkey.

Rise of Islam and Muslim nations

• The rise of Muslim nations like Egypt, Libya, Iraq, Persia, Algeria, Nigeria, Sudan, Morocco, and Pakistan was an independent move to secure the practice of Islam.

• Pakistan and Afghanistan are Islamic states.• The Al-Quran is their constitution.

Islam in Malaysia• Before coming of the British , Malacca was a port of call for traders.• European powers rushed to the east looking for wealth.• East India Company arrived on the shores of Kedah and Francis Light entered

into the Treaty of Kedah 1786 with the ruler of Kedah and the outcome was Penang was leased to the Company.

• The First Charter of Justice was introduced in Penang in 1807, and English law was applied to Penang.

• The Straits Settlement was formed in 1824 and the Second Charter of Justice was introduced in 1826. The Third Charter of Justice was given in 1855.

• Malaya was wholly colonised by the British after the Japanese Occupation, and gained its independence only in 1957.

• The administration of the religion of Islam however was left in the hands of the Malay Rulers.

Islam in Malaysia (cont).

• Islam is mainly a state matter. However, Article 3 of the Federal Constitution provides that Islam is a religion of the Federation but other religions can be practiced in peace and harmony in any part of the Federation.