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Essay on the Historical Development of Muslim Law in India

January 17, 2019 0 Comment

I. The First Period (622-632 A.D.):

The first stage in the development of Muslim Law begins with 622 A.D. (Hejarat) and ends with 632 A.D. the death of the Prophet. This period is called the legislative period. As mentioned earlier, the first message of God came to the Prophet in 609 A.D. at Mecca.

Since then, the divine messages were communicated to him from time to time and he used to convey them to the people at Mecca. But those people did not believe that Mohammad was giving them the message of God and also disbelieved everything what he said about God (Allah).

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Therefore, the Prophet’s first task at Mecca was to make them believe the existence of one God. The result was that most of the revelations at Mecca were religious or spiritual and did not contain positive law (Fiqh). In 622 A.D. Prophet Mohammad went to Medina where the messages of God, already revealed at Mecca, were easily believed.

In the revelations at Medina, therefore, the Prophet generally laid down the principles to regulate the conduct of the people (i.e. positive law). There had been revelations solving each and every problem of the society.

This continued till the death of the Prophet. Thus, most of the law-making revelations were made between 622 A.D. and 632 A.D. Divine messages or the revelations, whether explaining the concept of God or laying down rules of positive law were collected and contained in the holy book Quran.

We have seen that the messages from God came to the Prophet only on those occasions when he used to be inspired with divine powers. Rest of the time Prophet lived the life of a normal human being. Sayings or the doings of the Prophet without divine inspiration were also followed by the people as his precepts or traditions. Laws, which were not available in the direct words of God {Quran) were formulated through the traditions of the Prophet.

Thus we see that the last ten years before the death of the Prophet, were very important from the point of view of the legislation of Muslim law. Most of the important rules of law were laid down during this period either through the words of God or through Prophet’s own words.

According to Abdur Rahim, the first period has rightly been called the ‘legislative period’ of Islam when laws were enacted by the divine legislature and promulgated in the words of Quran or, by the precepts of Muhammad.

II. The Second Period (632-661 A.D.):

This is called the period of first four Caliphs of Islam. During his life, Prophet Mohammad had been an absolute authority on law and religion. He was spiritual as well as the administrative head of the Muslim State. After his death, the question arose as to who would be the successor of the Prophet. Majority of the people agreed that there should be an election for his successor.

Accordingly, an election was held in which Abu Bakr was elected. Thus, Abu Bakr became the first Caliph and headed the community of the Muslims. He was father of Ayesha Begum, the youngest wife of the Prophet. Abu Bakr was very popular among the Muslims of Arabia even during the life of the Prophet.

He died in 634 A.D. and after him Omar was elected as the second Caliph. Omar was the Chief for ten years, and was assassinated in 644 A.D. After him, Osman became the third Caliph through election. He headed the community for twelve years but he was also assassinated by the opponents in 656 A.D.

After him, Ali, who was the husband of the Prophet’s daughter Fatima, was elected and he became the fourth Caliph. Ali too was killed in 661 A.D. These first four Caliphs are known as the ‘rightly guided Caliphs’ (Khulfai-i-Rashidin) because they had the privilege of being very close companions of the Prophet.

At the time of the Prophet’s death, the divine communications were in the scattered form. Some of them were only in the memories of the people. One of the notable features of this period is that all the divine messages were collected, arranged subject-wise and written to give a final shape. This collection is known as the holy book Quran.

The first collection of Quran was by Zaid (a close companion of the Prophet) during the rule of Abu Bakr. But subsequently this collection was found to be incorrect and contradictory at many places. Osman, the third Caliph asked Zaid once again to revise the holy book and correct it. The earlier version of Quran was, however, destroyed by him.

Thus, the only authentic version of Quran now available to us is the Osman’s compilation. Another important feature of this period is that traditions of the Prophet were strictly followed. Thus, in the second stage of the development of Muslim law the only sources of law were the Quran and the traditions.

In so far as the administration of justice is concerned, it was during this period that Omar the second Caliph, appointed the first Quadi (or Qazi) to decide the disputes of secular nature, he declared that law is supreme and is above the executive authority.

III. The Third Period (661-900 A.D.):

Ah, the fourth and the last of the “rightly guided Caliphs” had two sons, Hasan and Hussain. After the death of Ali, Hasan was made the Caliph. But Hasan was a saint and did not like to involve himself in administration. He voluntarily resigned in favour of Muavia of the Umaiyad family. Thus Muavia became the next Caliph of the Muslim world. From him started the Ummaiyad dynasty.

Two noticeable events happened during his reign. First, the seat of Caliphate was shifted from Medina to Damascus and secondly, the office of Caliph, which had been elective, was made hereditary. Following the principle of succession, Muavia’s son Yezid became the next head of Muslim empire. Meanwhile Hasan, although not involved in the administration, was poisoned to death by his own wife at the instigation of Yezid.

However, Hussain, the younger son of Ali, revolted against Yezid. But he too was killed mercilessly at Karbala. It is significant to note that during Umaiyad’s rule, Caliphate became regular kingship. As was obvious, those kings were interested in the expansion of their empire rather than in the development of law.

In 750 A.D. the Umaiyad’s dynasty was captured by Abbasids who were the descendants of the Prophet’s uncle Abbas. Abbasids made their capital at Baghdad and proclaimed (unlike Umaiyads) also the religious or spiritual headship of the Muslim empire.

The Umaiyad rulers, as heads of the Muslim State, did nothing remarkable for the development of law. Similarly, as rulers the Abbasids too did not contribute to the development of law. In the absence of deliberations by the State authority, further exposition of law was undertaken privately by the learned scholars at Mecca, Medina and Kufa.

As is obvious, study of law by individual scholars gave rise to conflicting opinions. Each scholar claimed his interpretation of law to be the correct one. The academic differences among the scholars led to the formation of different schools of the Sunni sect. The Sunnis were divided into four sub-sects, Hanafi, Shafie, Maliki and Hanbali, each named after the scholars who expounded the law according to their own interpretations and reasoning.

Similarly, the Shias were also divided into three sub-sects, Ithna Ashria, Ismailia and Zaidi. This period is of great significance from the point of view of the development of Muslim law. First of all, the traditions of the Prophet, which were numerous and also scattered, were collected and examined. Only authoritative traditions were accepted to be the law.

Collections by Bukhari, Muslim and Malik-Ibn-Anas are some of the authoritative collections of traditions during this period. Secondly, where a law was not available in the texts of Quran or the traditions of the Prophet, a theoretical exposition of law was undertaken by the jurists.

As the Muslim society developed beyond expectations and became more complex, Quran and the traditions could not solve the problems of the society. In such a situation a theoretical formulation of law on the basis of those two texts was the only alternative. One method was to obtain a law through the consensus opinion of the jurists (Ijma).

Another method was to deduce a law directly from the texts of Quran or traditions by establishing similarity between the situations enumerated in the texts and the situation for which the law was then required.

This is called analogical deduction (Qiyas) and was treated to be the most scientific method of legislation. In both of the methods we find superb juristic approach in finding out a law for the society. New concepts in the juristic sicence such as equity, reasoning, public welfare etc. were also introduced during this period.

IV. The Fourth Period (900-1924 A.D.):

This period in the Islamic legal history begins with the establishment of the four Sunni schools and extends up to 1924 A.D. The Abbasids ruled for five centuries and were overthrown by the Mongols in 1258 A.D. For some time, the Sunni community remained without any Caliph. In 1261 A.D. Abdul Kasim Ahmed was made the Caliph with his capital at Cairo. This dynasty has been in power for more than two centuries.

A notable feature of the Caliphate in this dynasty was that Caliphs had no administrative powers. In the beginning of the sixteenth century, however, the Ottoman ruler Selim I was invited to head the community.

“The Caliphate was transferred to Selim I by a deed of assignment in 1571 A.D. Thus, the Caliphate passed to the Ottomans and Constantinople became the Dar-ul-Khilafat” Subsequently the Sultanate of Turkey was abolished by Mustafa Kamal Ataturk in 1922 and the Caliphate was also abolished forever in the year 1924 A.D. by the National Assembly of Ankara.

From the point of view of the development of Muslim law, this period is not significant at all because at this stage further exposition of law had stopped. The reason is that after the death of the founders of the four Sunni schools, no scholar of their eminence and learning was available who could propound new theories of law.

As no jurist was deemed competent for individual interpretation, the law could not be formulated through Ijtihad (opinion of the jurists). The result was that what was already laid down as a rule of law by those four jurists was simply followed by the society. In this manner, there developed the doctrine of Taqlid (following or imitation).

Under this doctrine the opinions of those great jurists were followed by the scholars (muftis) of this period without adding anything new to it. The scholars of this period have, however, written exhaustive commentaries on the law already laid down by the jurists of their respective schools.

Those scholars, being lower in rank, could not give independent judgments on a point of law; but they could give their opinions as an explanation or commentary on what had already been laid down. The opinions of those scholars are termed as Fatwas.

Although the Fatwas i.e. the opinions cannot be treated as rules of Muslim law, yet their worth in explaining a law can never be ignored. Some of the very important Fatwas are the Fatwai-Alamgiri and the Fatwai Qadi Khan.

V. The Fifth Period (1924 A.D. to present day):

With the abolition of Caliphate in 1924 A.D. began the modem period of Islamic law. This period still continues. After 1924 there is no Caliph as a religious head to administer and execute the traditional law of Islam.

This situation has been tackled by theoretically separating Islamic law from the religion (Shariat). Without any competent authority to execute it, the Islamic religion became the moral code of conduct whereas the Muslim law with the sanction of the State was viewed juridically.

It is however, evident that juridical exposition of Muslim law has largely been influenced by the science of law in European countries. Thus, efforts were made by modem Islamic countries like Turkey, Tunisia, Egypt etc. to codify their laws in such a manner that the inherent character of Shariat being preserved, the law is formulated in accordance with the requirements of the present society.

Another significant point to note is that formerly all aspects of human conduct (civil as well as criminal) were regulated by traditional Islamic laws but “subject after subject was gradually excluded from the purview of the traditional Islamic law in several parts of the Muslim world. Eventually, the scope of Islamic law was considerably narrowed down. Modern Codes of Civil and Criminal laws were enacted in many countries inhabited or ruled by Muslims”.

Before establishment of the British rule in India, the Moghul Emperors applied Muslim law as law of the land and all matters, whether pertaining to family status or crime or revenue, were governed by Muslim law. The British Government had changed this system by enacting several Acts which applied to Muslims and non-Muslims alike in the non-personal matters.

It may be said therefore, that in India the modem period begins with the establishment of the British Courts. A noticeable feature of the Anglo-Indian Courts was that they did not apply Muslim law in each and every affair of the Muslims. Matters relating to the family status e.g. marriage, dower, divorce, gift, will, inheritance, etc. were continued to be governed (as they still are) by the Muslim personal law.

But other affairs of non-religious or non-personal nature were regulated by Acts of Parliament. The Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, Contract Act, Transfer of Property Act etc. were applicable to everyone in India whether he was Muslim or a non-Muslim.

After independence, the same set-up has been adopted and is being followed. The Shariat Act of 1937 clearly established this situation by laying down that except questions relating to agricultural land, in all questions regarding intestate or testamentary succession, or any other provision of personal law, (marriage, divorce, dower, maintenance, guardianship etc.) the rule of decision, in cases where the parties are Muslims, shall be the Muslim personal law.

But, just two years after the Shariat Act, the Dissolution of Muslim Marriages Act, 1939 was enacted by the Parliament which has made revolutionary changes in the law of divorce. Several other enactments have been passed by the legislature which lay down rules of Muslim personal law. But, most of them either re-establish or clarify the provisions of traditional Muslim law.

Except the Dissolution of Muslim Marriages Act, 1939 and to some extent, the Muslim Women (Protection of Rights on Divorce) Act, 1986 there has been no legislative enactment for modification of the principles of Muslim law. However, within their own limits the courts have boldly attempted on several occasions to rationalise or otherwise explain the rules of Muslim personal law.

These judicial decisions have liberalised the application of traditional Muslim law according to the changing socio-economic conditions. The present Muslim law of India, therefore, includes the traditional law, the legislative enactments and, the judicial precedents.

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