Author : Palak Gupta, Student at Symbiosis Law School, Nagpur
One of the significant characteristics of the alleged Islamic rebirth is the call to reinstate the Sharia’s, the holy Islam’s law. Over the last more than two decades, this call has expanded eternally, given rise to sacred gestures, a vast amount of literature and lastly, influenced politics of the world. Doubtlessly, nowadays law of Islam is a remarkable keystone in the reestablishment of identity of Islam, not only as a matter of positive law but also, particularly as the basis of ethnic oneness. In reality, Muslims of today does not just recognize the law of Islam solely as a constitutional issue but as precisely rational.
The growing significance of the law of Islam in the world of Muslims since the late 1970s and early 1980s has given rise to curiosity in this field in western academia. Due to this, in prior decades, related scholarly interest was attracted. Even though, formative and modern periods were, are and will always be the most studied period in the past of the law of Islam. Yet, they are still unfamiliar to the people who practice Islamism.
Even though the significant contours of legal development at the time of the formative period can be extracted from already existing primary sources, there is much that remains unexplored. From the first centuries of Islam, the kind of sources is the one which creates problems. The point to be taken into notice here is that even if these problems were not there, then also these sources would be not enough. For instance, neither any source nor any court records can be seen that give us proof of how did the judiciary worked at the time of the formative period.
There is no clear idea of the kinds of issues that were prosecuted, how the parties represented themselves, how these issues were solved, how much open were the courts to women, what legal doctrines were applied, or how the judges utilized social ties to negotiate and settle disputes.
THE ORIGIN OF ISLAMIC LAW
Law of Islam shows one of the most significant legal systems in the world. For instance, the western legal system was shaped by Judaic law similarly, the law of Islam was from the crucial part of the religion, which is compulsory to be followed.
The Arabic word ‘Sharia’ means “the right path” referring to the Law of Islam as interpreted traditionally. It is derived from the sacred book of Islamic law known as ‘Quran”. Quran is derived from the Arabic word “Qurra” which means “the reading” or “that which ought to be read”. Quran is divided into ‘Ayat’ or versus. There is a total of 6237 verses forming a part of 114 chapters or ‘Sura’. The chapters deal with the multiple issues of life with their specific titles.
Quran is considered as the actual word of god by the people who practice Islamism. The Sharia is the central part of the teachings of Prophet Muhammad (Founder of Islam). Many legal scholars have tried explaining the teachings. The people following Islam believe that Allah (God of the Muslims) disclosed his real will to Prophet Muhammad.
The first revelation (Wahi) came to Prophet Muhammad in 609 A.D. Since then the revelations continued to come to Prophet Muhammad in fragments for 23 years till 632 A.D. Afterwards, Prophet Muhammad passed the commands of Allah to the people who practice Islamism in the religious book, i.e. Quran.
Muslims consider Sharia as sacred because it originated with Allah. Prophet Muhammad died in the 7th century. After the 10th century, many legal scholars tried interpreting the Sharia Law in different ways. They also attempted to compare it to the Muslim Empire, which was expanding at that time. An essential part of the golden age of Islam was represented by the Sharia of the 10th century. After these attempts were made, the scholar continuously interpreted the Sharia and then adapted it to dynamic conditions and newly emerged issues. In the modern era, during Colonialism tried to codify it.
DEVELOPMENT OF THE SHARIA
The nomadic tribes who lived in the Arabian Peninsula started worshipping idols before Islam began this practice. Fighting was one thing which these tribes regularly did. The customs of each tribe governed hospitality, marriage and revenge. Crimes against people were solved by an arbitrator or sometimes by personal retribution. In this chaotic world of Arab, a new religion was introduced by Prophet Muhammad. Only one god was considered valid by the residents of Islam. These residents demanded that they obey the laws and will of the god.
Basic standards of human conduct are set down by the Quran, whereas it does not provide a complete law code which is much needed. Legal matters are only dealt with in a few verses. While Prophet Muhammad was alive, he solved the doubts of people regarding the interpretation of provisions of the Quran. He also acted as a judge in legal matters. Therefore, Sharia became an integral part of the Muslim Religion.
Legal scholars were motivated by the Abbasids to debate on Sharia wholeheartedly. Some scholars out of the total said that the holy book of Muslims, the Quran and the teachings of Prophet Muhammad should be the ones to make up the Sharia. At the same time, the rest of the scholars were of the view that the opinions of experienced legal scholars should be included in the Sharia.
While the others were still thinking of a way of how to reconcile both these groups, Shafii, an intelligent legal scholar developed and systematized something which came to be known as “Roots of the Law”. Shafii believed that the Quran should be consulted by the government judge or the Kadi for solving a legal question. He also recommended that if after consulting the Quran, the dispute could not be sorted, then the judge should refer to the authentic sayings or the decision of the Prophet Muhammad.
If the judge fails to find an appropriate answer, he then should have a look at the consensus of Muslim legal scholars. After making so many attempts, if the answer could still not be found, then the last option left with the judge was to form his solution by analogical deduction which in other words is known as “Qiyas”. It is a primary source of Muslim law. It was a method in which the problem of the society was compared to a similar problem whose solution was already provided in the texts.
There was one more primary source of Muslim law known as “Ijma”. When traditions and Quran were not able to solve a new problem by applying any rule of law, the jurists used to agree unanimously. They gave their collective opinion on that matter. Such a unanimous decision or consensus opinion is called “Ijma”.
Shafii was the one who provoked controversy and criticized what was known as “People of Tradition” or “People of Reason”. He died in 820 AD. after some opponents attacked him. However, his approach was adopted throughout the Islamic world later. Around 900 AD., the classic Sharia took its shape. Handbooks for judges were collected to be utilized in making decisions by the specialists of Islam. The traditional Sharia was not a code of law, but a body of religious and legal principles which developed in the next 1000 years.
A few historians believe that Abu Bakr was the one who was selected by Prophet Muhammad to precede him after he died. The proof is that Prophet Muhammad, right before he died nominated Abu Bakr to host one of the crucial religious functionaries of the Muslims the Friday prayers. Some people were of the view that this was not in coordination with the essence of democracy that the people of Islam followed.
The argument raised by them was that it was left open by the Prophet Muhammad. The position of leader of Abu Bakr was illustrated by the offering of Baya (Oath) which was given to him by Sahaba (Companions of Prophet Muhammad). Baya was a handclasp which was utilized for sealing contracts by the Arabs. The reason why the Baya was given to Abu Bakr by the Sahaba was that because they considered him to be the best among them.
He proved the Sahaba right by taking up the task of collecting the Quran. The text of the Quran was preserved when Prophet Muhammad was alive. There is an inscription on various material as wood, stones and bones. He also solved the revolt that took place after the death of Prophet Muhammad. Islam spread to Iraq, Syria and Palestine.
After all this, Abu Bakr ordered the collection as well as codification of the Hadith or the sayings of Prophet Muhammad. So, people remember them over time. Everything done or mentioned by Prophet Muhammad without the reference of God is considered as the second primary source of Muslim law. Traditions or the secondary source are regarded as the injunctions of God said by Prophet Muhammad.
Umar became the second caliph and stepped into the shoes of Abu Bakr and became the leader after Abu Bakr died in 634 AD. in Medina. He acted fearlessly among the tribes. He added two places to the dominions of Islam, i.e. the whole Arabian Peninsula and Egypt. He also took up the task of building 12,000 Mosques. From Prophet Muhammad, he related almost 537 Hadith. During his reign, Islamic events were dated from the year of the Hijrah.
Uthman was the one who took the leadership, i.e. he became the third caliph shortly after the death of Umar in AH 23. Some of the tasks accomplished by him were that he added three more places the dominions of Islam, they were Cyprus, much of the Balkans as well as much of the North. He also completed the task of verification, collection and systematic compilation of the religious book of people who follow Islamism, i.e. Quran. Abu Bakr started this task, but Uthman was the one who completed the same. The written copies of the Quran after the job was completed were formed a part of a single volume. These copies were sent to all sectors of the Islamic world. He mentioned about 146 Hadith from the Prophet Muhammad.
Ali came to be known as the fourth and the last caliph after the death of Uthman. He was born in Mecca in 600 AD and cousin of Prophet Muhammad. The capital city was transferred by him from Mecca to Kufa after he took over the office in AH.35. Unlike the previous caliphs, he related hundreds of Hadith. Among the companions, he was one of the most learned persons. He was a diplomat and statesman of the highest echelon, and he often 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
How the domain of Islam was brought in the caliphate period has been described above. Due to the caliphate period, the people of the Islamic Empire got the knowledge of the importance, force and wielding that political power could bring. This was one of the many factors that became the reason for the foundation of Umayyad caliphate. Muawiyah became the first person who found Umayyad caliphate and so was the first caliph of the same. This caliphate was in existence from 661 AD to 750 AD.
When this caliphate was in existence, the law of Islam developed remarkably. The sphere of public law was codified, standardized and established. During the development of the public law sphere, private law spheres remained diverse. The first Jurisprudence on schools of Islamism was built with the sole purpose of teaching and spreading the teachings of Islam.
THE PERIOD OF THE ABBASIDS
The Abbasids were the cousins of Prophet Muhammad who took the throne in 750 AD. Persians were the ones who helped the Abbasids in taking over the throne. Umayyads were accused of dilution and distortion of the law of Islam to cope up with the demand of the changing times without even giving it a proper thought and due regard to basic tenets of Islam by the Persians.
A theory came into existence which in the principles and articles of the faith of Islam as well as the attributes of Allah were investigated, and they were also talked about with the sole purpose of determining the Unity of Allah. During their reign, the substantial areas of criminal were transferred to the government from the Kadis. After this happened, cases were handled by the Kadis revolving around family law, religious law, commercial law as well as the property law.
After all this, the doctrine of Constitutionalism was initiated. As a result of this doctrine, the council of states started representing every community. The legal scholars were cheered to examine, respect and deduce how the Muslim Community operated. The Jurisprudence of the sources of the law of Islam was written and codified. In addition to this, the traditions of Prophet Muhammad were collected. At last, the analyzation of the Quran was also done. This resulted in the making of four remarkable Sunni schools which preached legal thoughts. They were:
- The School of Abu Hanifa also known as The Hanafi School (700 – 795 AD)
- The School of Malik Ibn Anas also known as The Maliki School (713 – 795 AD)
- The School of Muhammad Ash-Shaefi also known as The Shaefi School (767 – 820 AD)
- The School of Ahmad ibn Hanbal also known as The Hanbali School (780 – 855 AD)
Apart from the Sunni schools, there were three Shia schools also. They were known as:
- Imamia School
- Ismailia School
- Zaidiyya School
TODAY’S SCENARIO OF ISLAMIC LAW
During the 19th century, several Muslim countries were influenced by Western colonial powers. The change in governance pattern caused a change in many areas like courts, punishments, even Western-style laws started appearing within the Sharia. Whereas, there are some countries, for instance, Turkey which adopted new law codes based on European systems and wholly banned the Sharia. But there are some Muslim countries which have given the power of prosecuting and punishing criminal acts to the government. In the areas of Family law, a large number of Muslim countries have already prohibited polygamy as well as the divorce by the husband’s repudiation of his wife.
Muslim legal scholars, and the modern legislations, showed how the Sharia is to be interpreted to those who are willing to find a connection between the will of Allah and the 20th century. This has even happened in Saudi Arabia, where Islam began. Since the year 1980, some Muslim countries like Iran which have the fundamentalist Islamic regimes, have also tried to reverse the trend of westernization and return to the classic Sharia. On the other hand, many legal scholars are of the view that the Sharia could coincide with current conditions without hampering the spirit of the law of Islam or for that matter, its religious foundations. Many countries like Saudi Arabia and Iran, the Sharia was adapted wholeheartedly by new conditions.
This article, explores definition of the Islamic Law, origin of the Islamic Law, definition of the Sharia, discussion on Prophet Muhammad, development of the Sharia, sources of Muslim Law, what happened after Prophet Muhammad died, discussion on various caliphs who took the throne one after the other, then the period of Umayyads and Abbasids. And finally, it gives an overview on the current scenarios of Islamic Law i.e. what all changes were done in 19th century and which countries adopted new law codes based on Sharia and how was Sharia accepted wholeheartedly.
This article seeks to create a new paradigm for the scholarly understanding of the origins of Islamic law. The people who are keen in knowing more about the topic, this article provides a general literature review.
 Mahima Mishra “Muslim Law: Origin, Sources and Who Is a Muslim?” (Accessed on 3rd July at 7:00 pm)
 Mahima Mishra “Muslim Law: Origin, Sources and Who Is a Muslim?” (Accessed on 3rd July at 7:40 pm)
 “BRIA 15 1 a The Origins of Islamic Law” (Accessed on 5th July at 2:00 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 6th July at 10:25 am)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 6th July at 10:55 am)
 Noel James Coulson “Shari’a” (Accessed on 7th July at 12:23 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 7th July at 5:20 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 7th July at 6:10 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 8th July at 11:56 am)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 8th July at 12:15 pm)
 Noel James Coulson “Shari’a” (Accessed on 9th July at 3:47 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 9th July at 5:00 pm)
 Abdul Malik Abubaker “The Historical Development of Islamic Law” (Accessed on 9th July at 6:12 pm)