Historical development of Sharīʿah law

Historical development of Sharīʿah law

For the first Muslim community established under the leadership of the Prophet Muhammad at Medina in 622, the Qurʾānic revelations laid down basic standards of conduct. But the Qurʾān is in no sense a comprehensive legal code. No more than 80 verses deal with strictly legal matters; while these verses cover a wide variety of topics and introduce many novel rules, their general effect is simply to modify the existing Arabian customary law in certain important particulars.
During his lifetime Muhammad, as the supreme judge of the community, resolved legal problems as they arose by interpreting and expanding the general provisions of the Qurʾān, and the same ad hoc activity was carried on after his death by the caliphs (temporal and spiritual rulers) of Medina. But the foundation of the Umayyad dynasty in 661, governing from its centre of Damascus a vast military empire, produced a legal development of much broader dimensions. With the appointment of judges, or qāḍīs, to the various provinces and districts, an organized judiciary came into being. The qāḍīs were responsible for giving effect to a growing corpus of Umayyad administrative and fiscal law; and since they regarded themselves essentially as the spokesmen of the local law, elements and institutions of Roman-Byzantine and Persian-Sāsānian law were absorbed into Islamic legal practice in the conquered territories. Depending upon the discretion of the individual qāḍī, decisions would be based upon the rules of the Qurʾān where these were relevant; but the sharp focus in which the Qurʾānic laws were held in the Medinian period had become lost with the expanding horizons of activity.

Development of different schools of law

A reaction to this situation arose in the early 8th century when pious scholars, grouped together in loose, studious fraternities, began to debate whether or not Umayyad legal practice was properly implementing the religious ethic of Islam. Actively sponsored by the ʿAbbāsid rulers, who came to power in the mid-8th century pledged to build a truly Islamic state and society, the activities of the jurists (faqīh, plural fuqahāʾ) in these early schools of law marked the real beginning of Islamic jurisprudence. Their aim was to Islamize the law by reviewing the current legal practice in the light of the Qurʾānic principles and then on this basis adopting, modifying, or rejecting the practice as part of their ideal scheme of law.
Of the many early schools of law, the two most important were those of the Mālikīs in Medina and the Ḥanafīs in al-Kūfah, named after two outstanding scholars in the respective localities, Mālik ibn Anas and Abū Ḥanīfah. Inevitably the Mālikī and Ḥanafī doctrines, as they were then being recorded in the first compendiums of law, differed considerably from each other, not only because free juristic speculation was bound to produce varying results but also because the thought of the scholars was conditioned by their different social environments. A deep conflict of juristic principle emerged within the schools between those who maintained that outside the terms of the Qurʾān scholars were free to use their reason (raʾy) to ascertain the law and those who insisted that the only valid source of law outside the Qurʾān lay in the precedents set by the Prophet himself.
The jurist al-Shāfiʿī (died 820) aimed to eliminate these schisms and produce greater uniformity in the law by expounding a firm theory of the sources from which the law must be derived. Al-Shāfiʿī’s fundamental teaching was that knowledge of the Sharīʿah could be attained only through divine revelation found either in the Qurʾān or in the divinely inspired traditions (Sunnah) of the Prophet as ascertained through authentic reports (Hadith). Human reason in law should be strictly confined to the process of analogical deduction, or qiyās—problems not specifically answered by the divine revelation were to be solved by applying the principles upon which closely parallel cases had been regulated by the Qurʾān or Sunnah.
Al-Shāfiʿī’s insistence upon the importance of the Sunnah as a source of law produced a great activity in the collection and classification of Hadiths, particularly among his own supporters, who formed the Shāfiʿī school, and the followers of Aḥmad ibn Ḥanbal (died 855) who formed the Ḥanbalī school. Muslim scholarship maintained that the classical compilations of Hadiths—especially those of Bukhārī (died 870) and Muslim (died 875)—constituted an authentic record of the Prophet’s precedents. The general view of Western orientalists, however, is that a considerable part of the Sunnah represents the views of later jurists fictitiously ascribed to the Prophet to give the doctrine a greater authority.

Later developments

Al-Shāfiʿī’s thesis formed the basis of the classical theory of the roots of jurisprudence (uṣūl al-fiqh), which crystallized in the early 10th century. Juristic “effort” to comprehend the terms of the Sharīʿah is known as ijtihād, and legal theory first defines the course that ijtihād must follow. In seeking the answer to a legal problem, the jurist must first consult the Qurʾān and the Sunnah. Failing any specific solution in this divine revelation, he must employ analogy (qiyās) or certain subsidiary principles of reasoning—istiḥsān (equitable preference) and istiṣlāḥ (the public interest). The legal theory then evaluates the results of ijtihād on the basis of the criterion of ijmāʿ (consensus). As an attempt to define Allah’s law, the ijtihād of individual scholars could result only in a tentative conclusion termed ẓann (“conjecture”). But where a conclusion became the subject of unanimous agreement by the qualified scholars, it became a certain (yaqīn) and infallible expression of Allah’s law.
Two major effects flowed from this classical doctrine of ijmāʿ. It served first as a permissive principle to admit the validity of variant opinions as equally probable attempts to define the Sharīʿah. Second, it operated as a restrictive principle to ratify the status quo; for once the ijmāʿ had cast an umbrella authority not only over those points that were the subject of a consensus but also over existing variant opinions, to propound any further variant was to contradict the infallible ijmāʿ and therefore tantamount to heresy.
Ijmāʿ set the final seal of rigidity upon the doctrine, and from the 10th century onward independent juristic speculation ceased. In the Arabic expression, “the door of ijtihād was closed.” Henceforth jurists were muqallids, or imitators, bound by the doctrine of taqlīd (“clothing with authority”—i.e., unquestioned acceptance) to follow the doctrine as it was recorded in the authoritative legal manuals.
Sharīʿah law is a candidly pluralistic system, the philosophy of the equal authority of the different schools being expressed in the alleged dictum of the Prophet: “Difference of opinion among my community is a sign of the bounty of Allah.” But outside the four schools of Sunni, or orthodox, Islam stand the minority sects of the Shīʿite and the Ibāḍīs whose own versions of the Sharīʿah differ considerably from those of the Sunnis. Shīʿite law in particular grew out of a fundamentally different politico-religious system in which the rulers, or imams, were held to be divinely inspired and therefore the spokesmen of the Lawgiver himself. Geographically, the division between the various schools and sects became fairly well defined as the qāḍīs’ courts in different areas became wedded to the doctrine of one particular school. Thus Ḥanafī law came to predominate in the Middle East and the Indian subcontinent; Mālikī law in North, West, and Central Africa; Shāfiʿī law in East Africa, the southern parts of the Arabian peninsula, Malaysia, and Indonesia; Ḥanbalī law in Saudi Arabia, Shīʿite law in Iran and the Shīʿite communities of India and East Africa; Ibāḍī law in Zanzibar, ʿUman, and parts of Algeria.
Although Sharīʿah doctrine was all-embracing, Islamic legal practice has always recognized jurisdictions other than that of the qāḍīs. Because the qāḍis’ courts were hidebound by a cumbersome system of procedure and evidence, they did not prove a satisfactory organ for the administration of justice in all respects, particularly as regards criminal, land, and commercial law. Hence, under the broad head of the sovereign’s administrative power (siyāsah), competence in these spheres was granted to other courts, known collectively as maẓālim courts, and the jurisdiction of the qāḍīs was generally confined to private family and civil law. As the expression of a religious ideal, Sharīʿah doctrine was always the focal point of legal activity, but it never formed a complete or exclusively authoritative expression of the laws that in practice governed the lives of Muslims.

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