History of Islamic Law

Following notes on History of Islamic Law have been taken from Principles of Mahomedan law By D.F Mulla.

LAW AND THE SCIENCE OF JURISPRUDENCE AFTER THE PROMULGATION OF ISLAM

The history of Muhammadan law subsequently to the promulgation of Islam and of the Muhammadan legal science is divisible into four distinct periods.

The first Period commenced with the Hijrat of the Prophet to Medina (A. D. 622) and ended with his death (A. D. 632).

This has been rightly called the , ‘legislative period’ of Islam when laws were enacted (passed) by the divine legislator and promulgated (broadcasted) in the words of the Qur’an, or by the precepts of Muhammad.

These are the texts upon which as their foundation the superstructure the four Sunni Schools has been constructed.

The second period extends from the date of the Prophet’s death to the foundation of different schools of jurisprudence, and would cover, roughly speaking, the time of the Companions of the Prophet (Ashab) and their successors (Tabi’iin).

It was an age as has been observed mainly of collection and of interpretation and extension of laws by collective deliberations.

The third period “Was marked by a theoretical and scientific study of the law and religion, and it was then that the four Sunni Schools of jurisprudence were established.

It commenced about the beginning of the second century of the Hijra and practically ended with the third century.

Since then there has been no independent exposition (explanation) of Muhammadan law, and jurists have been engaged within the limits of each School to develop the work of its founders. This may be called the fourth period in the history of Muhammadan law and cannot properly be said to have yet come to an end.

The First Period

The Quran

Many of the verses laying down rules of law were revealed with reference to cases which actually arose.

The Precepts or Ahadith

The other sources of the ordinances (orders) of God, during the lifetime of the Prophet, were his precepts or Ahadith.

Often questions arose for decision, for the solution of which no direct revelation was forthcoming (helpful), or certain points had to be explained and made clear.

The pronouncements made by the Prophet on all such occasions are known as Ahadith or precepts, and are regarded as of sacred authority.

Prophet’s approval or disapproval was sometimes implied from his conduct. If, for instance, a certain usage or course of action was followed by the Muslims within his knowledge, and the Prophet expressed no disapproval thereof, its legality was presumed (assumed). Similarly, if the Prophet studiously (profoundly) avoided a certain course of conduct, it has to be presumed that he disapproved it.

The Second Period

After the death of Prophet (in 632), the divine Book and the precepts and the precedents of the Prophet were left for reference and instruction.

If a text of the Qur’an or pronouncement of the Prophet covered a point, or if the Prophet had decided a similar case, there could be no difficulty.

But fresh facts and new circumstances often arose for which no provision had been made, specially as the affairs of the community became more complex with the growth of empire.

Those who were associated with the Prophet as his Companions, and often shared his counsels, must have known, as if by instinct (nature), the policy of Islamic law, and whether a particular rule or decision was in harmony with its principles.

It is presumed, therefore, that an agreement among the Companions in a particular view vouched for its absolute soundness, and even their isolated opinions are regarded as of high authority.

The first and the most momentous problem that the community had to solve on the Prophet’s death was that of finding a successor to him as the head of the Muhammadan Commonwealth. Over this question the  Muhammadan world has since then divided itself into  two hostile factions, the Shi’ahs who assert that the Imamate or Caliphate should have continued in the family of the Prophet, and the rest of the Muhammadans who support the right of the community (Jama’t) to elect the chief.

As the Muhammadan community was to be governed in the main on the principles already laid down for the purpose, the necessity of collecting the verses of the Qur’an and the precepts and precedents of the Prophet forced itself upon the attention of the early Muslims.

The Hadith was not collected by authority of the state

The sayings and decisions of the Prophet were not, however, collected by the authority of the State as was done in the case of the Qur’an.

Men who were most learned in the traditions soon gathered round them an increasing band of students eager to learn and store up every saying of the Prophet.

The traditionalist and Jurists:

All traditionists, however, were not necessarily jurists,

Among those who, by their learning and aptitude in deducing rules of secular and canon law, acquired eminence among the Companions of the Prophet, the names of ‘AH, ‘Urnar, Ibn ‘Umar, Ibn Mas’iid and Ibn ‘Abbas stand out most prominent, and many important principles of Muhammadan jurisprudence are based on their opinion.

Ibn Mas’ud for a long time gave lectures in Hadith and law at Kufa, while other jurists and traditionists carried on the work of teaching at Madina.

These two places, especially the latter, continued for a long time to be the seats of sacred learning. Of Ibn Mas’ud’s pupils the names of Al-qama and Aswad are best known.

Al-qama occupied the professorial seat, and when the latter died he was succeeded by Aswad. On Aswad’s death the mantle (blanket) of the teacher fell on the shoulders of the famous Ibrahim an-Nakha’f, who was known as ‘ the jurist of ‘Iraq ‘.

Ibrahim is reported to have made a collection of the principles of law that had been hitherto established, and Hammad, under whom Abu Hanifa afterwards studied jurisprudence, had a copy of this collection.

Administration of Justice under four Caliphs:

Abu Bakr was the first to establish a prison-house for the malefactors (criminals).

His successor ‘Umar appointed the first Qadi, and he enforced the principle that the majesty of law was supreme, and that the administration of justice must be above the suspicion of subservience to executive authority.

The study of Law and traditions during Umayyad Caliphate

The first act of the Umaiyad dynasty, their successors, was to remove the seat of the Caliphate to Damascus, outside the limits of Arabia Proper.

The Qadi still administered justice, but law during the reign of the Umaiyads grew and developed only in the lecture rooms of the professors, who did not come into contact with the practical concerns of the administration of justice.

The distinction of first classifying the laws under different subjects, of introducing the use of technical phraseology, and of arranging the different sources of law is ascribed (credited) by some to Wasil ibn ‘Ata, the founder of the Mu’tazila sect.

Laws encouragement by Abbasids

With the fall of the house of the Umaiyads and the accession of the ‘Abbasides to power, in A. H. 132, a new impetus (motivation) was given to the study of jurisprudence.

Baghdad their capital became the centre of culture and attracted jurists and traditionists from Hijaz, Syria, Mesopotamia and other parts of the empire.

The ‘ Abbaside Caliphs appointed as Qadis men noted for their learning an legal acumen, and gave them handsome salaries and a high place of dignity in the State.

Foundation of Sunni School of Law:

It was during the reign of the ‘Abbasides that the four Sunn! Schools of law, with whose jurisprudence we are now concerned, were founded.

The principles of these four Schools are substantially the same, and they differ from each other merely in matters of detail.

They are classed together in contradistinction to the only other important existing school of law among the Muhammadans, namely,the Shi’ah school, though the differences even between the Shl’ahs and the Sunnis centre more round questions relating to political events of the past, rather than to any general principles of law or jurisprudence.

Abu Hanifa

Abu Hanifa an-Nu’man ibn Thabit, commonly known as Imam Abu Hanifa, the founder of the most important of the Sunni schools, was born in the year A. H. 80, during the time of the Umaiyad Caliph, ‘Abdu’l-Malik.

He attended the lectures of Ja’far as-Sadiq and of Hammad, the first of whom, a descendant of the Prophet, was noted for his great learning and piety, and is regarded as an Imam of the Shi’ah School.

Abu Hanifa was endowed with talents of an exceptional nature and had the true lawyer’s gift of detecting nice distinctions. He possessed remarkable powers of reasoning and deduction, which, combined with the resources of a retentive (retaining) memory and a clear understanding, brought him into rapid prominence as a master of jurisprudence.

He was considered by his contemporaries to rely less upon the traditions in arriving at legal conclusions and more upon deductions than the other jurists.

In his time the jurists were broadly divided into two classes: those of Hijaz or Arabia Proper who were called ‘ the upholders of the traditions ‘. And those of ‘Iraq who were known as ‘upholders of private opinion ‘.

In sifting (scrutinizing) the traditions Abii’Hanifa was undoubtedly more strict than the others, and the tests that he applied to them resulted in excluding many traditions which the people generally accepted as genuine.

His chief work lay in formulating the theories and principles of jurisprudence, and he was in fact the founder of the Muhammadan science of law as we find it.

Qiyas and Istihsan:

He was the first to give prominence to the doctrine of Qiyas or analogical deduction, though, as a principle of law, it was undoubtedly in practical operation before his time.

He, however, assigned a distinctive name and prominent position to the principle by which, in Muhammadan jurisprudence, the theory of law is modified in its application to actual facts, calling it istihsan which bears in many points remarkable resemblance to the doctrines of equity (justice).

Abu Hanifa also extended the doctrine of Ijma’ (consensus of opinion) beyond what many of the contemporaries were willing to concede (allow).

Some were of opinion that the validity of Ijma’ as a source of laws of opinion should be confined to the companions of the Prophet and others would extend it to their successors, but no further.

Abu Hanifa affirmed its validity in every age.

Codification of Law by Abu Hanifa and his Disciples

He also instituted, it is said, a committee consisting of forty men from among his principal disciples for the codification of the laws.

It took thirty years for the code to be completed, but each part as it was finished was circulated broadcast.

The entire code, however, has now been lost, an irreparable loss no doubt to the cause of Muhammadan jurisprudence.

We have, however, a small collection of traditions based on his authority and called ‘ Musnadu’l-Imam Abu Hanifa ‘ and a letter which he wrote for the instruction and guidance of his disciple Abu Yusuf in his office of Qadi is still in existence.

Abu Hanifa was offered the office of Qadi, and because he refused to accept it on conscientious grounds, Ibn Hubaira, the Governor of Kufa, had him flogged. Al-Mansiir at last cast him into prison, ostensibly for the same reason, and there the great jurist expired, having been, as believed, poisoned at the instance of the Caliph.

Malik

Malik was born in A. H. 95, at Madina, and there he studied and taught and did all his work.

He was not only a traditionist but a jurist, and founded a school of law which exercised great influence in his lifetime.

Malik leaned more upon traditions and the usages of the Prophet and the precedents established by his Companions.

He attached a preponderating weight to the usages and customs of Madina, relying on the presumption that they must have been transmitted from the time of the Prophet.

He recognized a principle, corresponding to that of Abu Hanifa’s istihsan, namely, that of public welfare (muslahat) as a basis of deduction.

To the four main sources of law, the Qur’an, the Hadith, Ijrna’ and analogical deduction he would add Istadlal as a fifth source.

Istadlal is a principle of juristic deduction which according to his School does not come within the scope of analogy.

Malik ibn Anas died twenty-nine years after Abu Hanifa.

Imam Malik’s ‘Al-Muwatta ‘, a collection of traditions, is well known and contains about three hundred traditions.

Shafi’i

Among Malik’s pupils, Muhammad ibn Idris Ash-Shafi’i attained even greater eminence as a jurist than the master himself.

He was born in Palestine, being descended from ‘Abdu’l-Muttalib, the grandfather of the Prophet.

He attended lectures on law and traditions not only of Malik ibn Anas, but of other noted doctors in law including Muhammad, the disciple of Abu Hanifa.

At an early age he evinced (demonstrated) proofs of great talents, and while still a youth delivered lectures in jurisprudence. His fame soon spread and the doctrines which he enunciated (articulated) found great vogue (trend).

The school of law with which his name is associated takes rank in the number and importance of its followers next only to the Hanafi school.

Egypt is the principal stronghold of his doctrines, but his followers are to be found in other parts of Africa, in Arabia and also some in India, specially in Bombay and Madras.

He adopted a middle course between Abu Hanifa and Malik in the use of traditions.

Ahmad ibn Hanbal

Among the scholars who attended Ash-Shafi’i’s lectures was Abu ‘Abdi’llah Ahmad ibn Hanbal, known as Imam Hanbal, who founded the fourth and the latest of the Sunni Schools of jurisprudence.

He was born at Baghdad (A. H. 164) and studied under different masters including Shafi’i.

But from all the accounts that are left of him, he appears to have been more learned in the traditions than in the science of law.

In law he adhered (followed) rigidly to the traditions, a much larger number of which he felt himself at liberty to act upon than any other doctor.

His interpretation of them was literal and unbending, and according to some he allowed a very narrow margin to the doctrines of agreement and analogy.

He was a man of great piety and uncompromising opinions, and was persecuted (offended) by the Caliph Al-Ma’mun, because he adhered to his own views on certain points of divinity, and refused to conform (follow) to those that had found favour in court.

His followers, who were regarded as reactionary and troublesome, were persecuted from time to time.

Now his School consists only of a few followers and those only in certain parts of Arabia.

With Imam Hanbal, therefore, the age of independent jurists came to an end, and the work that has been done since then in developing the laws and legal science has been mainly supplementary (additional).

Study of science of Traditions:

A new band of scholars, the most prominent of whom are known as the Imams of tradition as distinguished from Imams of jurisprudence, headed by Abti ‘Abdi’llah Muhammad Abu Isma’il al- Bukhari commonly known as Bukhari, a pupil of Hanbal himself, devoted themselves exclusively to a scientific investigation of science of Traditions.

From the latter half of the third until the earlier part of the fourth century (A. H.) the task of collecting and sifting the traditions was undertaken in the same spirit of comprehensive (complete) thoroughness which characterized the work of Abu Hanifa, Shafi’i and Malik in the domain (area) of jurisprudence.

Bukhari “was the pioneer (forerunner) in this enterprise (initiative) and his collections are regarded by the Muhammadans of Sunni Schools as the most authoritative.

His book contains about 7,000 traditions which he selected as authentic out of 600,000.

He died in A. H. 256 (A.D.869).

Side by side with Bukhari and in the same field and with same scientific methods though independently, worked Muslim ibnu’l-Hajjaj of Nishapur known as Muslim. He died in A. H. 261 (A. D. 874).

Muslim’s work, though smaller in bulk, can hardly be said to be of inferior authority to that of Bukhari, and the collections of these two are pre-eminently distinguished as the two ‘ Sahihs ‘ or the two correct collections out of the six collections which are regarded by the Sunnis as authentic.

The remaining four collections are by Tirmidhi (died A.H. 279 or A. D. 892), Abu Da’ud (died A.H. 275 or A.D. 888), Ibn Majah (died A.H. 273 or A. D. 886) and Nisa’i (died A.H. 303 or A.D. 915).

They all worked independently of each other, so that the same tradition is often to be met with in more than one of their books, and the greater the number of collections in which a particular tradition finds a place, its authority is held to be proportionately strengthened.

Still it is not to be supposed, because a tradition is reported in one of these collections even in Bukhari’s or Muslim’s, that it is always accepted as genuine by the followers of the Sunni Schools.

Indeed nothing has been a more fruitful source of conflicting opinions in matters of law among the Sunni jurists than the question whether a particular tradition is to be regarded as genuine or not, although it may be one for whose authority one or more of these writers may have vouched.

Influence of traditionalist on jurisprudence:

Their work has directly tended, as was to be expected, to strengthen the position of the jurists of Hijaz, or ‘ the upholders of traditions’, especially of the Shafi’f and Maliki Schools.

Though indirectly and perhaps more or less imperceptibly it has also exercised considerable influence on the ‘ followers of private judgement ‘, that is the ‘ Iraqi school of thought with which the name of Abu Hanifa is especially identified.

If we bear in mind that Abu Hanifa himself, who lived at a time when the precepts and usages of the Prophet were fresh in the memories of the successors of the Companions, and came into contact with almost all the great traditionists of the age, is reported to have accepted only seventeen or eighteen of them as genuine, and that the number of traditions, which his followers since his time have acted upon as authentic, may be counted by hundreds, one cannot help inferring that the stand-point of the Hanafi school of thought must have undergone great modification under the influence of Bukhari and his collaborators.

The study of Quran and the science of its interpretation:

Of the numerous commentaries that have been written on the science of interpretation of Quran (Tafir), those by Tabari (died in A.H. 310 or A. D. 9*22), Zamakhshari (died in A.H. 538 or A. D. 1143), Baidawi (died in A.H. 685 or A. D. 1286), Ghazzali (died in A.H. 504 or A.D. 1110), the two Jalalu’d-dins (one of whom died in 1459), and Fakhru’d-dfni’r-Razi are well known.

To this list may be added ‘ Tafsir-i- Ahmadi ‘, a most useful commentary on those verses of the Qur’an, from which rules of law have been deduced, written by Ahmad, commonly known as Mulla Ji’wan, who lived in the time of Aurangzeb.

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