HISTORY OF ISLAMIC LEGISLATION

The history of the development of Muslim law or legislation may be divided into seven distinct periods or stages.

1. First Period/Stage [Foundation – The Era of the Prophet Muhammad (SAW)]: The first period is the
period when the Holy Prophet was alive from the year 13 before Hijrah to 10 A.H. (608/609-631/632
A.D.). During the period of revelation in the lifetime of the Prophet Muhammad, all legal ruling were
derived from the following sources:
a. THE HOLY QUR’AN. This is the compilation of ALLAH’S divine revelation which serves as
the blueprint of the Islamic way of life. Many sections of the Qur’an were revealed to resolve
problems arising from the fledgling Muslim Community. This Method of gradual and experiential
legislation was most suitable for the nomadic Arab tribes who were used to a life of unbridled
freedom.
b. THE SUNNAH OF THE PROPHET. This consists of the acts and sayings of the Prophet
Muhammad and represents the application of the Qur’anic blueprint in the daily life of a Muslim.

2. Second Period/Stage [Establishment – The Era of the Four Rightly Guided Caliphs (Al-Khilafa
Rashidun)]: The second period is the period from 10 A.H. to 40 A.H. (631/632-660/661 A.D.). The thirty
years of the rightly guided Caliphs, the period of the Companions of the Prophet ( Ashab) and their
immediate successors (Tabi’un). This was the so called Golden Age of Islam. This was the period where
the compilation of the Glorious Qur’an was made and the appointment of First Judge as well as the
separation of the Executive branch of government and the Judiciary. This stage witnessed the rapid
expansion of the Islamic Empire to include Syria, Jordan, Egypt, Iraq and Persia (now known as Iran).
Hence, the early Muslim community came into immediate contact with new cultures, systems and
behavioral patterns which did not have specific corresponding provisions in the Shari’ah. Confronted
with situational conflicts, the Caliphs decides as follows:

a. Search first for a specific ruling in the Holy Qur’an

Fiqh was developed or introduced at this period/stage which was based on actual rather than hypothetical
conflicts. Later in the evolution of fiqh, this came to be called fiqh ul-waqi’ee to distinguish it from the
use of reasoning or ra’i from the Ahl ul-ra’i who rose to prominence in Kufa, Iraq during the Umayyad
Dynasty.

3. Third Period/Stage [Building – The Umayyad Dynasty]: The third period of Muslim law is the period
of the Umayyad Caliphate from 41 A.H. to 132 A.H. (661-750 A.D.). In this period, the Muslim empire
was transformed from an Islamic theocracy to an Arab secular state. In this period there arose different
parties such as the Shiahs, the Kharijites and the Sunnis. The use of ijtihad increased because of the
difficulty of gathering all legal scholars together in one place because of the expansion of the Islamic
Empire. The Sunnah of the Prophet was no longer readily accessible to Muslim populations far from
Madinah and Makkah, the two most important centers of Islam. Hadith narratives also became
widespread and there grew a tendency to falsify or fabricate them to suit personal purposes. This period
marked the first attempt to compile the ijtihad and ijma of the Sahabah. Clear-cut schools of legal thought
arose which would later become the Madhahib or Schools of Law. Four of these madhahib will survive to
become known as the Four Orthodox Schools of Islamic Law: Hanafi, Maliki, Shafi’i and Hanbali.
Scholars and students of law at this period were divided into the:
 a. Ahl ul-Hadith – those who limited their deductions to available Qur’anic and Hadith text, and
avoided reasoning out when there are no clearly defined text available
b. Ahl ul-Ra’i or those who favored extensive use of deductive reasoning or ijtihad. This latter
group used their reasoning to arrive at possible reasons when the reason for a particular law has
not been identified in the Qur’an or Hadith. This practice was based on the practice of some of
the Sahabah who deduced reasons from some of the divine laws.

4. Fourth Period/Stage [Flowering – The Ascent of the Abbasid Dynasty]: The fourth period in the
development of Muslim law is the period from 132 A.H. to 350 A.H. (749/750-950/961 A.D.), the period
of the early Abbassids. This period was marked by the merciless massacre of the Umayyad clan and the
treacherous liquidation of the Generals who installed the Abassids in power. This was done for fear that
the Generals might become too powerful and might surpass the power of the Abassids. The tombs of the
Umayyad caliphs were disturbed except for Umar bin Abdul Aziz who was allowed to rest in peace.
Other schools of thought founded at this time were:

a. Al-Awza’i School – founded by Imam Abu’ Amr’ Abd al-Rahman ibn ‘Amr; his family belonged
to al-Awza’a, a tribe in Yemen. He was born in Ba’labak (now in Lebanon) in the year 88 A.H.,
lived in Beirut until his death in 157 A.H.
b. The Zahiri School – founded by Daud ibn ‘Ali al-Isfahani, better known as Abu Sulayman al-
Zahiri was born in Kufah in the year 200 or 202 A.H. He was brought up in Baghdad where he
died in 270 A.H. At first he was an adherent of the Shafi’i school and later he founded a school of
his own.
c. The Tabari School – founded by Abu Ja’far Muhammad ibn Jarir al-Tabari. He was born in
Amul Tabaristan in the year 224 A.H., and died in Baghdad in 310 A.H. He is the author of the
great exegesis of the Qur’an.

Fiqh took shape as an independent and systematic science at this time, and grew because of government
support to intellectual endeavors. Fiqh became clearly divided into fundamental principles (usul) and
secondary principles of scientific, philosophical and theological works (furuu). The sources of Islamic
law were defined and differentiated from each other and the two surviving Schools of Law (Hanafi and
Maliki) from the Umayyads were formalized by their chief adherents, and differences between them
became more developed, thus separating them from each other. From these two schools of law will
branch out and develop two more, the Shafi’i and Hanbali. Various compilations of Hadith and Fiqh were
made during this period.

5. Fifth Period/Stage [Consolidation – Decline of the Abbasid Dynasty]: The fifth period of Muslim law
is the period from 351 A.H. to the fall of Baghdad in 656 A.H. (962/950-1258 A.D.). In this period the
schools of Muslim law were developed into separate and independent schools. The period saw a decline
in the strength of the Muslim empire which disintegrated into separate provinces. Competitive debates
(Munaad Haraat) between the Madhahib flourished and caused negative differences among their
adherents. The spirit of this rivalry spread to the masses and resulted in factionalism. The structure of the
surviving madhahib became highly systematized and rigid; hence, their scholars were forced to base their
ijtihad solely on the usul or fundamental principles of their respective madhab. At this stage, all the
madhahib had analyzed the details of their rulings and reduced them to fundamental principles which
were then codified for consolidation purposes. Ultimately, independent ijtihad was discarded in favor of
ijtihad limited to the fundamental principles of a particular school. This was known as the ijtihad
madhhabi.

6. Sixth Period/Stage [Decline and Stagnation – End of Abbasid and Reign of the Ottoman]: The sixth
period of Muslim law is the period from 656 A.H. to the abolition of the Caliphate in 1340 A.H. (1258-
1922 A.D). The jurists of this period were called the muqallidun, as they regarded themselves as the
followers of the different schools of law. In this period, the road to ijtihad has been closed and they
confined themselves to following the principles laid down by the Imams to which everyone respectively
belong to, blind following or imitation of earlier madhahib ruling was used to decide legal conflicts,
 although there are still few who still adheres to ijtihad. This was the period where there are many writers,
commentators and annotators arose and books on Islamic Law were published. The dynamism of fiqh was
lost because many of the laws became increasingly outmoded and inapplicable in their existing forms. As
a result, European and other western legal precepts came in to fill the void. Eventually, with the growing
strength of European colonialism, Islamic laws in many Muslim countries were replaced by European
codes.

7. The Last Period/Stage: The seventh period is from 1922 to present. In this period the Sultanate of
Turkey was abolished (1924). After that, Sunni Islam had no recognized head and the history of Muslim
law in this period is the history of its application in the separate Muslim countries. In recent years,
however, Madhahib factionalism has been significantly reduced due to the increasing tendency to study
comparative fiqh and utilize juristic tools that enable a Muslim to shift from one school of law to another.
However, legal analysis and reinterpretation in the mode of the ijtihad days of the past have not really
prospered among Islamic legal circles. In the political sphere we find the rise of independent Muslim
countries, like Egypt, Pakistan, Indonesia, The Federation of Malaya (now known as Malaysia), Irag,
Algeria, Libya, Morocco, Nigeria and other Muslim states in Africa. In many Muslim countries, the
Shari’ah has been replaced by codified secular laws in all fields of law except those relating to family law
and personal status. Movement of Islamic Modernism arose which aims at adapting Islam to modern
conditions by renovating those parts of its traditional equipment which are regarded as medieval and out
of touch with modern times. It is only in the present generation that the ground has been prepared for
legislation by Muslim governments on the law of family, the law of succession, the law of waqf or
charitable endowments, subjects which have always form part of the central domain of Muslim Law. It is
interesting to note that while the unequivocal ordinances of the Qur’an and Sunnah must for all times
remain valid as the unchangeable Muslim Law, the Muslims are not only permitted but definitely
encouraged to develop side with this unchanging law, a changeable and changing law, which would apply
the spirit and the actual injunctions of the Divine Law to the social requirements of each time and place.