History of Muslim Law | Family Law - CLAT PG PDF Download

Historical Antecedents

The First Period 

• Prophet Muhammad was born in 570 AD. In his adulthood, he often engaged in meditation.
• At the age of 40, he received his first revelations, marking the beginning of the Islamic calendar (AH 1).
• Initially, only his wife and a few others believed in his teachings. Among them were:
•  Abu Bakr:  He became the first Caliph after Muhammad's death.
•  Ali:  He later became the fourth Caliph.
•  Omar:  He became the second Caliph.
•  Osman:  He became the third Caliph.
• Due to persecution, Muhammad and his followers fled to Madina in 622 AD, marking the start of the Hegira era.
• In Madina, Muhammad was welcomed and succeeded in gaining a large following. He also established a political organization called the Umma.
• By 632 AD, the Prophet ruled over Mecca, Madina, and the surrounding regions. He passed away in 633 AD (AH 11).
• The period from AH 1 to AH 11, especially the last 10 years of the Prophet's life, was crucial for the development of Muslim Law. During this time, the verses of the Koran were composed, and most Ahadis were recorded.
• The Koran contains the direct words of God, while Ahadis consist of the sayings and deeds of the Prophet, representing indirect revelations.

The Second Period: Development of Muslim Law under the Caliphate

After the death of the Prophet Muhammad, the lack of a designated successor led to the election of  Abu Bakr  as the first Caliph, marking the beginning of the  Caliphate  and the second period of Muslim law development.

•  Abu Bakr's election  sparked significant turmoil and divisions within the Muslim community, resulting in the emergence of the two main factions:  Sunnis  and  Shias  .
• Abu Bakr served as Caliph until  634 AD  , after which  Omar  was elected as the second Caliph.
• Omar was assassinated in  644 AD  , leading to  Osman  becoming the third Caliph.
• Osman was assassinated in  656 AD  , and  Ali  then became the fourth Caliph.
• Ali's rule was also short-lived, as he was assassinated in  661 AD  .

 Collection and Edition of the Koran 

• During this period, significant efforts were made to  collect  and  edit  the texts of the Koran.
• The final compilation and reception of the Koran occurred during  Osman's reign  .
• Osman's edition of the Koran is considered the most authentic, being free from  interpolations  and alterations.

The Third Period of Muslim Law (Up to 300 AH) 

 Transition of Power 

• After the death of  Ali, the Fourth Caliph  , a significant shift occurred in the Muslim leadership.
•  Hasan, Ali's eldest son  , initially took on the role of Caliph but soon  renounced his claim  in favor of  Muawiya  , the founder of the  Umayyad dynasty  .
•  Hussain, Ali's younger son  , opposed this transition and  led a revolt  . He was ultimately killed in the  Battle of Karbala  , a pivotal event that cemented the division between the  Sunnis and Shias  .

 Establishment of the Umayyad Dynasty 

•  Muawiya  became the temporal and spiritual leader of the Arabs.
• After Muawiya's death, the principle of  hereditary succession  was established in the Caliphate.
• The Umayyad dynasty  ruled for several generations  until its fourteenth sovereign was overthrown.

 Rise of the Abbasid Dynasty 

• The Abbasids  overthrew the Umayyads  and declared themselves the spiritual leaders of the Muslims.

 Development of Sunni and Shia Schools 

• During this period, the  Sunni and Shia schools of thought  were formally established.
• There was a  systematic effort to collect and preserve traditions  (Hadiths), which are crucial to Islamic law and practice.

The Fourth Period of Muslim Law Development (Circa 962 AD) 

This period marks a significant phase in the evolution of Muslim law, characterized by the formalization of legal principles and the role of different Schools of thought.

 Key Developments 

•  Title of Imam:  The Abbasids were the first to use the title "Imam," meaning Supreme Leader. Sunnis view the Imam as a servant of the law, while Shias see him as the Supreme lawgiver.
•  Jurists' Efforts:  Jurists from various Schools made concerted efforts to develop and elaborate Muslim law in detail.
•  Doctrine of Ijtihad:  Ijtihad, or independent reasoning, became a significant aspect of legal development during this period.
•  Doctrine of Taqlid:  Taqlid, the principle of adhering to the rules and principles set by recognized Schools of law rather than deducing them independently, was also established.
•  Sources of Law:  The primary sources of law remained the Koran, the Sunna, and ijma (consensus), but the emphasis was on following the established interpretations of these texts.

This period reflects the dynamic and evolving nature of Muslim law, with a focus on interpretation, consensus, and the role of established legal authorities.

The Fifth Period of Muslim Law Development 

According to Fyzee, the fifth period marks a significant shift in the development of Muslim law, beginning with the abolition of the caliphate or Sultanate. During this phase, the spontaneity and flexibility that characterized earlier periods have diminished.

 Key Characteristics of the Fifth Period 

•  Abolition of the Caliphate/Sultanate:  The period starts with the end of the caliphate or Sultanate, leading to a loss of spontaneity in legal development.
•  Decline of Ijma and Qiyas:  The tools of ijma (consensus) and qiyas (analogy) have lost their effectiveness as means of legal development.
•  Restriction on Jurists:  Jurists are no longer permitted to create new rules and principles, marking a significant change in the legal landscape.
•  Shift to Legislation:  The development of law becomes reliant on legislation rather than traditional methods, as seen in various countries, including India.

 Fifth Period in India 

• In India, the fifth period begins with the establishment of British rule.
• With the end of Muslim rule and the firm establishment of British authority, the process of abrogating Muslim law in many areas commenced.
• The common law system covered various subjects, leaving primarily Muslim Personal Law in place.
• The  Shariat Act of 1937  was enacted to strengthen the application of Muslim law on individuals professing Islam.
• One significant reform during this period was the  Muslim Dissolution of Marriage Act, 1939  , which allowed Muslim wives to sue for the dissolution of marriage on specific grounds.

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