We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time. Find out more The Oxford History of Islam - Law and Society - The History of Islamic Law - Oxford Islamic Studies Online
Select Translation What is This? Selections include: The Koran Interpreted, a translation by A.J. Arberry, first published 1955; The Qur'an, translated by M.A.S. Abdel Haleem, published 2004; or side-by-side comparison view
Chapter: verse lookup What is This? Select one or both translations, then enter a chapter and verse number in the boxes, and click "Go."
:
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result

Law and Society >
The History of Islamic Law

Islamic legal history is in a sense the history of fiqh rather than of the Shariah. The Shariah had a short history, as its development began and ended in just over two decades during the Prophet's mission in Mecca and Medina. Only the rudiments of fiqh were laid down during this period, and there was no distinction between the legal subject matter of Islam and its other parts at this early stage. Fiqh in this period referred to the knowledge of religion in general; the distinction that confined fiqh to practical legal rules was made by the ulama (religious scholars) of later periods. This was to a large extent stimulated by the documentation of hadith (a verified account of a statement or action of the Prophet Muhammad) and the extensive materials that were consequently made available for fresh inquiry and research. Legal historians have distinguished six periods in the development of fiqh. In the initial phase—the prophetic period (ca. 610–32 C.E.)—the Quran was revealed and the Prophet explained and reinforced it through his own teaching and practice, the Sunna. There was a general preoccupation with the Quran and the emphasis was not as much on law as on the dogma and morality of Islam. The legal rulings of the Quran, which were mainly revealed during the second decade of the prophetic mission, were primarily issue-oriented and practical. There was no need for speculative legal reasoning (ijtihad) simply because the Prophet himself provided definitive rulings on issues as and when they arose.

The History of Islamic Law

Devotional matters (ibadat), including cleanliness and ritual prayer, are treated much the same by all schools of law. For example, everyone must remove shoes before prayer. Here, a group of Muslim men put their shoes back on outside a London mosque as they return to their daily lives.

view larger image

The second period of the development of fiqh—the era of the Prophet's Companions (ca. 632–61)—is one of interpretation and supplementation of the textual subject matter of the Shariah. In this period fiqh and ijtihad find their historical origins. The Companions of the Prophet took a rational approach toward the textual materials—the Quran and the Sunna. Their understanding and interpretation of the texts were not confined to the meaning of words; rather, the Companions sought to understand their underlying rationale, effective cause, and purpose. The Companions’ interpretations are generally considered authoritative, not only because they were the direct recipients of prophetic teachings but also because of their participation and insight into the Quran's phenomenology (asbab al-nuzul). The Companions frequently resorted to personal reasoning and consultation in the determination of issues. The first four caliphs—Abu Bakr, Umar ibn al-Khattab, Uthman ibn Affan, and Ali ibn Abi Talib, collectively known as the “rightly guided caliphs”—are particularly noted for their interpretations.

The third phase in the development of fiqh, known as the era of the successors, began with the Umayyads coming to power around 661 and ended with that dynasty's demise in 750. Because of the territorial expansion of the Umayyad state, new issues arose that stimulated significant developments in fiqh. This period is marked by the emergence of two schools of legal thought that left a lasting impact on the subsequent development of fiqh: Traditionists (Ahl al-Hadith), who were centered mainly in Mecca and Medina in the Hejaz, and the Rationalists (Ahl al-Ray), who were active in the Iraqi cities of Kufa and Basra. Whereas the Traditionists relied mainly on textual authority and were averse to the use of personal opinion (ray), the Rationalists were inclined, in the absence of a clear text, toward a more liberal use of personal reasoning. Although the Traditionists opposed the approach, the Rationalists maintained that the rules of the Shariah, outside the sphere of devotional matters, pursued objectives and were founded in causes that provided the jurist and mujtahid with guidelines for further inquiry and research. The secession of the Shiites from the main body of Muslims, the Sunnis, which took place as a result of disagreement over political leadership, led to the emergence of the Shiite school of law during this period. The Shiites maintained that Ali, the cousin and son-in-law of the Prophet, was the rightful caliph and leader, but that his predecessors, Abu Bakr, Umar, and Uthman, denied Ali that right. The Shii school advocated doctrines that are significantly different from those of their Sunni counterparts.

The History of Islamic Law

Civil transactions (muamalat), including matrimonial law and civil litigation, vary significantly according to the different schools of law. This scene shows the bride carried to the groom's car in a traditional doli as she begins her married life with his family in Kashmir.

view larger image

The next two centuries (ca. 750–950), known as the era of independent reasoning, marked the fourth phase in the history of fiqh. This phase saw major developments that were later manifested in the emergence of the legal schools that have survived today: the Hanafi, Maliki, Shafii, and Hanbali. The Hanafi school, named after Abu Hanifah al-Numan ibn Thabit (699–767), presently has the largest following of all the surviving schools, in part because of its official adoption by the Ottoman Turks in the early sixteenth century. Abu Hanifah advocated legal reasoning by analogy (qiyas), which gained general acceptance over time, but his liberal recourse to personal opinion and juristic preference (istihsan) were criticized by the Traditionists. To this day the Hanafi school has retained its relatively liberal stance. The Maliki school, founded by Malik ibn Anas al-Asbahi (ca. 715–95), led the Traditionist movement in Mecca and Medina and advocated the notion that the Medinan consensus (ijma) was the only valid consensus. Despite its traditionalist leanings, however, the Maliki school over time has embraced a number of important doctrines that are inherently versatile, and its jurisprudence is in many ways more open than that of the other legal schools. It is the only school, for instance, that has accepted almost all the subsidiary sources and proofs of the Shariah, about which the other schools have remained selective (accepting some and rejecting or expressing reservations about others). The Maliki school is predominant today in Morocco, Algeria, Tunisia, northern Egypt, Sudan, Bahrain, and Kuwait; the Hanafi school prevails in Turkey, Pakistan, Jordan, Lebanon, and Afghanistan.

Muhammad ibn Idris al-Shafii (767–820) is also a leading figure in the Traditionist camp, but he tried to reconcile the various trends and strike a middle course between the Traditionists and Rationalists. The controversy between the Traditionists and Rationalists had by al-Shafii's time accentuated the need for methodology. Al-Shafii saw the need to articulate the broad outline of the legal theory of the sources, the usul al-fiqh. He spent the last five years of his life in Egypt, where he found the customs of Egyptian society so different from those of Iraq that he changed many of his legal verdicts. The Shafii school is now prevalent in southern Egypt, the Arabian Peninsula, East Africa, Indonesia, and Malaysia, and it has many followers in Palestine, Jordan, and Syria. Even al-Shafii's degree of emphasis on tradition and his strong advocacy of the Sunna did not satisfy the uncompromising Traditionists, who preferred not to rely on human reason and chose instead to base their doctrines as much as possible on the precedents established in the Quran and the hadith. This was the avowed purpose of the two new schools that emerged in the ninth century. The first (and the only successful) of these was the Hanbali school, founded by Ahmad ibn Hanbal (780-855). The other was the Zahiri school of Dawud ibn Ali al-Zahiri (819-91), now extinct. The number of ibn Hanbal's followers declined until the eighteenth-century Wahhabi puritanical movement (named after the scholar Muhammad ibn Abd al-Wahhab) in the Arabian Peninsula gave it a fresh impetus. The Hanbali school is now predominant in Saudi Arabia, Qatar, and Oman. Until the time of Jaafar al-Sadiq (d.765), Shiism remained political in character, focusing mainly on the issue of succession and lacked a juristic doctrine of its own. It was through the works of Muhammad al-Baqir (d. 715) and Jaafar al-Sadiq, the fifth and sixth Shii Imams, that Shiism also became a school of juristic thought.

The History of Islamic Law

During the era of independent reasoning (ijtihad), four major schools of Islamic law developed—the Hanifi, Maliki, Shafii, and Hanbali. Most madrasas, or theological colleges, are devoted to a single school, but occasionally all four were included in a single building. The huge funerary complex founded by the Mamluk Sultan Hasan in the mid-fourteenth century in Cairo, seen in David Roberts' nineteenth-century lithograph, has a cruciform congregational mosque with a madrasa for each of the four schools in the corners of the courtyard.

view larger image

The fifth phase in the formative history of fiqh began around 950. This period is characterized by the institutionalization of the dominant schools, with emphasis not on new developments but on following precedent (taqlid). The jurists occupied themselves with elaboration and commentaries on the works of their predecessors. By far the longest phase, this period lasted for about nine centuries and witnessed the downfall of the Abbasid and Ottoman Empires, the expansion in the military and political powers of the West, and the industrial revolution and colonial domination of Muslim lands by European powers. The colonial powers propagated their own doctrines and legal codes in almost every area of the law. As a result, fiqh lost touch with social reality and underwent a sustained period of stagnation. Original thinking and direct recourse to the sources of the Shariah, which had characterized the first three centuries of development, were no longer encouraged. A climate of opinion prevailed that the early predecessors had exhaustively used and developed the resources (the Quran and the Sunna), and the digested version of fiqh that they had produced was to be strictly followed. Imitation and following precedent thus gained ground, and the so-called “closure of the gate of ijtihad” followed.

The History of Islamic Law

Madrasas were initially established by Sunnis to combat the spread of Shiism, but with time, Shiites established madrasas of their own. The Madar-i Shah Madrasa in Isfahan, seen in this early photograph by Captain G. C. Rigby, was built by the Safavid Shah Husayn (1694–1722). Since the Islamic Revolution, it has been returned to its original function as a theological college.

view larger image

The sixth and final phase in the development of fiqh began at the turn of the twentieth century. It is marked by less emphasis on precedent and greater emphasis on original thinking and the quest to make the Shariah once again relevant to the social reality and experience of contemporary Muslims. The revivification of fiqh and its necessary adjustment to respond to the prevailing needs of society is generally seen as an important component of the Islamic resurgence of the recent decades.

The History of Islamic Law

The mosque of al-Azhar in Cairo, founded under the Fatimids in the tenth century, became a major center of learning in the Arab world. The curriculum there was reformed at the turn of the twentieth century, the time depicted in this photograph, and legal opinions issued by the shaykh there exemplify one type of independent reasoning (ijtihad).

view larger image

A large number of Sunni jurists have acknowledged the so-called “closure of the gate of ijtihad” and the onset of imitation around the mid-tenth century. Sunni and Shiite jurists are in agreement, in principle, that ijtihad is a collective obligation (fard kifa'i) of the Muslim Community. The Sunnis maintain that ijtihad should never be abandoned. The Shiite jurists have held, alternatively, that ijtihad is a collective obligation of all Muslims in the absence of the imam (the divinely appointed leader and successor of Muhammad). Independent reasoning is thus viewed not simply as a meritorious endeavor that might succeed or fail but as an effort to reach the highest possible degree of objective truth in the absence of the infallible imam. This effort must constantly be renewed in the hope of coming ever closer to objective truth. Intellectual exertion thus remains an open process until the return of the imam, who alone can offer certainty and truth. Furthermore, the Shiite imams have gone on record to instruct their disciples to remain diligent in ijtihad, especially regarding the implementation of the general principles of Shariah. In time, Shiite jurisprudence adopted the notion that a fully qualified mujtahid (one qualified to exercise independent reasoning) is a representative (naib) of the imam and performs the functions of the imam regarding judgment and administration of the people's affairs. The leading Shiite mujtahids who expounded Shiite principles included Seyyed Morteza Alam al-Huda (d. 1060), Abu Abd Allah al-Mufid (d. 1044), Muhammad ibn Hassan al-Tusi (d. 1067), and Morteza al-Ansari (d. 1864). Morteza al-Ansari's two major words, Faraid al-Usul and Makasib, are currently used as textbooks on Shiite law.

In modern times legal interpretation or reasoning has occurred in the following three ways: statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings. Instances of legislative interpretation, which Noel Coulson referred to as “neo-ijtihad,” can be found in the modern reforms of family law in many Muslim countries, particularly with reference to polygyny and divorce, both of which have been made contingent upon a court order, and therefore are no longer the unilateral privilege of the husband. Current reformist legislation on these subjects derives some support from the jurists’ doctrines of the Maliki and Hanafi schools, but these reforms are essentially based on novel interpretation of the Quran's relevant portions. Morocco provides a good example of such reforms. The Moroccan law of Personal Status 2004, known as the Mudawwana for instance, revised the fiqh rules on guardianship (wilaya) in favour of women, who now share joint responsibility for the family with their husbands, and the wife’s traditional obligation to obey her husband has consequently been eliminated. Women are no longer placed under the guardianship of male relatives. The minimum age of marriage is set at 18 for both men and women, and women have the same right as men to obtain divorces – both must go through the courts.

Numerous instances of independent reasoning are also found in the views of the ulama, such as the collections of published opinions of Muhammad Rashid Rida in the 1920s and those of the late shaykh of Azhar, Mahmud Shaltut, in the 1950s, and subsequently of Mustafa al-Marghi, Muhammad Tantawi, Yusuf al-Qaradawi and many others. In the 1967 case of Khursid Bibi vs. Muhammad Amin, the supreme court of Pakistan's decision to validate a form of divorce, known as khula, that can take place at the wife's initiative, even without the consent of the husband, can be cited as an example of judicial ijtihad. Another example of ongoing reinterpretation is the scholarly contribution of the Egyptian scholar Yusuf al-Qaradawi, who validated air travel by women unaccompanied by male relatives. According to the rules of fiqh that were formulated in premodern times, women were not permitted to travel alone. Al-Qaradawi based his conclusion on the analysis that the initial ruling was intended to ensure women's physical and moral safety, and that modern air travel fulfills this requirement. He further supported this view with an analysis of the relevant hadiths on the subject and arrived at a ruling better suited to contemporary conditions.

  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result
Oxford University Press

© 2021. All Rights Reserved. Cookie Policy | Privacy Policy | Legal Notice