The Evolution of Islamic Law

Islamic Law had passed two periods of development and two periods of decay.[1] The first period of development occurred during the apostleship (609-632 C.E.) of the Prophet Muhammad (peace be upon him). During this period, the formal sources of law stem from the divine command expressed directly in the Qur'an or Sunnah.  

Fiqh was not formulated as a new branch of knowledge", because at that time the Prophet (peace be upon him) and his companions (who were unsurpassed in linguistic abilities) were still alive.[2]

The Qur'an at first dealt with religion and morals, particularly in the early verses revealed in Makkah.

Later, one finds legal rules relating to family organization, property, private and public affairs, peace and war, crimes and punishments, economic affairs and judicial procedure.   All these rules are mingled with religious concepts which account for the religious influence.  These legal rules largely constitute reforms realized by Islam to counter-balance general tendencies in pre­ Islamic society.

Thus, the  first  period  saw the  foundation  by which  Islamic  legislation  "significantly  translates  all the  social transformations required for the progress of the Ummah."[3]

The second period marked the scientific development of Fiqh as a new branch of knowledge. Thus, after the death of the Prophet (Peace be upon him), the Qur'an and Sunnah came "to be considered as basic sources and raw material which assigned to Islamic laws their directive and domain."

The second period emerged with the inclusion in Shari'ah of two derivative sources, such as Ijmah (consensus) and Qiyas (analogical reasoning) or Ijtihad (independent reasoning).

Qiyas is a mechanical application of analogy, to deduce a rule on the basis of the effective cause in a case, and to apply the same rule to another case whenever the effective cause for both is similar.

The jurists during the second period handled Islamic laws as a whole by the deductive methods of Qiyas and Ijtihad. The verses of the Qur'an which are considered to provide the basis for Qiyas and Ijtihad are Surah Saad, 38:29 and Surah Al-Ankabut, 29:69. The greatest achievement of this period was "the establishment of the Schools of Islamic law" (Mad Habs), marking the scientific development of Fiqh.[4]

The two periods of stagnation and decline cover "approximately six centuries starting with the sacking of Baghdad In 1258 C.E. and the  execution of the last Abbasid caliph, al-Musta'sim, and ending  around the middle of the 19th century of the Christian era:"[5]

The first period of the decline in the development of Fiqh is also known as the period of Taqlid (the blind-following of one particular school of law). This period, characterized by blind­ following, political antagonism and factionalism, led to the neglect of Ijtihad and the evolution of the madh-habs into totally separate entities closely resembling sects.[6]

Thus, Taqlid reduced "Islamic law practically to a frozen state.”[7] The reasons for the emergence of Taqlid include the "destruction of Baghdad as a centre of Muslim intellectual life, unrestrained activities of the 'rational thinkers', widespread sufism, and social anarchy in all walks of life.[8]

The second period of decline in the development of Fiqh occurred when the European colonizers, for 150 years, "directly ruled almost the whole of Asia and Africa, which were populated

to a large extent by the Muslims."[9] The European colonizers - the British, the French and the Dutch alike - Imposed their own legal system on the Muslims, except those related to family and property matters. They also "deculturized the Muslims In such a scientific manner as to ensure that it would be difficult to recover or organize themselves into a vital force again.”[10]

After 150 years, decolonization took place, but the Europeans left behind their own Western   legal   system and culture. The new Muslim leaders who grew up under colonialism were no doubt influenced by western thinking and values.

So, although the Muslims got their own Independence from the Western powers, in the physical or geographic sense, they are now under new and higher forms of colonialism, known as neocolonialism and imperialism.  The main indicators, in this respect, are predominance of the Western legal system and cultural values in most Muslim countries, despite the superiority of Islamic law and values.

Nowadays, the Muslim masses have begun to realize that the discarding of Islamic Law, the prevalence of Taqlid and factionalism, as well as the presence of Western legal system and culture, have all contributed to their retrogression or back­wardness. Many Muslims believe that the Ummah can regain its power and glory by reverting to Islamic Law and values.