Updated: Jul 24, 2021
“Advent of Islam’’ and development of Islamic Law.
Islam - its basis : Islam is the last revealed religion. “Islam" is an Arabic word meaning “submission”. It denotes complete submission to the One Almighty God. Muhammad Identified himself as a simple human being sent by God as a Prophet to the people.
The Quran is the Divine Book which is God’s own word as revealed to Muhammad through the Angel of Revelation. It dictates the Law, initiates into the Unseen, purifies the soul and guides social progress. It can be said to be a complete code of conduct for all time. The Quran, as we have it now, is a record of what the Prophet said while in the state of ecstatic seizure. The recording of the Prophet’s words in the beginning was haphazard. Verses were written on palm leaves, stones, the shoulder-blades of animals-in short, any material which 'was available. There is no doubt that at the death of Muhammad, a good deal of the Quran was already written down, though not all of it, for while the Prophet was alive, new chapters were constantly being added. There is also no doubt that a 'great deal of the Quran had been learned by heart.
THE DEVELOPMENT OF ISLAMIC LAW
(1)The first period in the development of the Islamic Law is of ten years the one between 1 A. Hejira and 10A.H. This is the most important period so far as . the first two sources of law, viz., the Quran and ‘hadith’ are concerned. The Prophet had conquered Mecca, and in the last few years of his life, he took upon himself the task of legislation. Most of the verses of the Quran revealed during this period deal with legal aspects. So also do some of the Prophet’s most important judicial decisions and traditions. The precept of the Prophet acquired binding force because Muslims believed that the actions and the saying of the Prophet were inspired or commanded by God.
(2)The second period is the period of thirty years from 10A.H. to 40A.H. when the rightly-guided Caliphs, viz., Abu Bakr, Umar, Usman and Ali were the Caliphs. During this period, there was a close adherence to ancient practice under the guise of adherence to the ‘sunnah’-the precept of the Prophet. During this period, the collection and the editing of the Quran also took place. The authorized text of the Quran-which remains without change or corruption to this day-was first published during the reign of Usman, the third Caliph.
(3)The third period is a long one which ranges from 40A.H. to the third century after Hejira and is very important. It was during this period that the work of collection of the ’traditions’ of the Prophet took place. During the earlier part of this period, there appear the four schools of Sunni law, which are named after their four founders.
The Hanafi School, named after Imam Abu Hanifa, placed reliance on the principles of ‘qiyas’ or analogical deduction. Imam Abu Hanifa employed ‘qiyas’ because the doctrine of haduth had not developed fully at that time. There was also no recognised collections of the ’hadith’. The Maliki School named after Imam Malik does not differ much from the Hanifi School: Imam Malik, however, placed greater reliance on systematic reasoning.
The Shaafi School was named after Imam Shaafi who preferred the doctrine of ‘ijma’ or consen-sus of the learned. The Hanbali School, founded by Imam Ahmed bin Hanbal, advocated the principle of adhering to the hadith literally.
(4)The fourth period in the development of Islamic law extends from the third century after Hejira to the present day. After the four recognised schools had been founded, later scholars applied them-selves to the methods laid down by the founders and developed each system in a particular manner. However, no individual jurist was ever afterwards recognised as having the same rank as the founder himself. After the abolition of the Caliphate, a new situation arose and there was no one to execute the behests of the Shariat. During the last period, the doctrine of ‘taqlid'-following by imitation-and ‘ijtihad’-the power of inde-pendent interpretation of law developed and came into prominence.
The Shia School of thought In our consideration of the development of Islamic Law. we must not lose sight of the Shia School.
The term ‘Shia’ by itself means faction and is a contraction of the word 'Shia-t-i-Ali' or the 'faction of Ali'. The Shias deny and dispute the principle of election by the people in the matter of the Caliph-ate and hold that the Prophet had appointed Ali as his successor. The Shias are divided into a large number of schools, the two most important of which are the Ismailis and the IthnaAshari. In India, the Ismailis consist of two main groups, viz., the Khojas and the Bohras. The Khojas are the followers of the Aga Khan and the Bohras are mainly the followers of Syedna or Dai. The majority of Shias belong to the IthnaAshari School. The word Shia is, in India, applied in general to the IthnaAshari School of Shias.
The Imarriat - According to the Sunni doctrine, the leader of the Muslims, at any given moment, is the Caliph. He is more or less a temporal ruler than a religious chief; in religious matters, he has merely to follow the shariat. The concept of the Imam according to the Shias is totally different. It is here that the fundamental difference between the Shia and the Sunni theology comes in. According to the Shias, the Imam is the final interpreter of the laws. He is the leader, not by election, but by divine right, as he is the successor of the Prophet-a descendant of AN. The Shias hold that no hadith is valid unless it is related by an Imam descended from the Prophet. They accept the authority of the Quran, but say that only the Imam can say what the correct interpretation of the law is. According to the Shias, the Imam is the law-giver himself, but as he is hidden, the ‘mujtahid1 2 3- corresponding to the Sunni Kazis-are his agents, the interpreters of the law. ‘Ijtihad’-the power of independent interpretation of the law-therefore has an altogether different significance in the Shia Law. The Shia Mujtahid can give decisions on his own responsibility. The doctrine of qiyas(analogical deduction) and ijma(consensus of opinion) as understood by the Sunnis is not accepted by the Shia' School of thought. Therefore, law, according to the Shia School, consists of rules of conduct based on authoritative interpretation of the Quran and the Sunnah and the decisions of the Imams through the mujtahids.
Development of Muhammadan Law in India ;
The Mughal emperors being Hanafis, the Hanafi law was administered till the establishment of British Rule.The British applied Muhammadan Law as a branch of personal law to those who belonged to the Muslim religion in accordance with the principle of their own school or sub-school. In all suits regard-ing inheritence, succession, marriage and caste and other usages or institutions, the laws of,the. Quran in accordance with the opinion of the maulvis were invariably adhered to in the case of Muslims. With the changing social conditions, the need for a change in some of these laws became apparent. On the other hand, certain portions of the law were abolished, such as the banning of slavery and forfeiture of rights on apostacy. Similarly, certain portions of the customary law were altered to make the original rules of the Islamic Law applicable.
The Wakf Act, 1913, was enacted on these lines. Today, the law of Marriage, Divorce, Dower, Legitimacy, Guardianship, Wakfs, Wills and Gifts and Inheritance among Muslims is uniform all over India. The Shariat Act of 1937 abrogated custom and restored to Muslims their own personal law in almost all cases. We thus see that the Muhammadan Law as applied in India is the shariat modified by the principle of English common law and equity.