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The History and Development of Islamic Law?Introduction???The endeavor to understand the origins and evolution of Islamic law can be daunting. This subject – whether from the standpoint of a historian or theologian – is largely fraught with complexities and inconsistencies. Many traditions and opinions exist as to how and when Islamic law actually developed in its entirety. It should be noted that the intention is not to blaspheme Islam as a religion, but rather analyze some of Islamic law’s possible origins. This history of law spans over thirteen centuries and much could be said on the matter. However, in order to focus on the early origins of Islamic law, our scope of interest will not extend beyond the 9th?century CE. Therefore, a necessary cross-examination of a variety of early sources, coupled with an elaboration on the traditional historicity of Islamic code, will provide for a thorough exploration of Islamic legal theory and its origins.Early sources of Islamic Law??????????????????To comprehend Sharia (the English term used to describe Islamic religious law) and its origins, one needs to begin at the source, which is to say, at the time of Muhammad. However, it must be reiterated that the origins of Islamic law are rather enigmatic. Even by examining the traditional history of Islam in conjunction with non-Islamic sources of the same time period, the true origins of Sharia law become difficult to decipher.????????????????? According to Islamic tradition, the angel Gabriel visited Muhammad in the year 610 CE. Traditional scholars explain that from 610 CE to 632 CE, Muhammad was in the process of receiving revelation (which would be compiled in the Quran) and establishing an actual religious empire in Arabia. Thus, by the time of the Prophet Muhammad’s death in 632 CE, Islam had two primary sources of law and religion, which were incorporated into a flourishing empire. The Quran was the first source and the second was the Sunna. To clarify the nature of these early sources, we begin with the Quran. The present-day Quran is a compilation of 114 suras (chapters) containing a total of 6,236 ayat (verses). This holy book is not a linear text like the Hebrew Bible. It does not offer a full narrative of the lives of Biblical prophets like Noah and Moses. Rather the Quranic text highlights these angelic men and their deeds, but not in the same strict chronology as the Old Testament. In contrast, the Sunna is simply a sacred guide, which demonstrates the way to live one’s life based on Muhammad’s example and the Quran. Therefore, the Quran provides general guidelines on matters of law and religion, and the Sunna elaborates more specifically on the Quran’s brief and ambiguous provisions. In essence, these two sources form a symbiotic relationship. By 632 CE, Muhammad completed the establishment of the one true Abrahamic religion in Arabia. Islam, as a monotheistic creed, was God’s gift to the Arabs in response to Christianity and Judaism, which according to Allah, had become largely polytheistic by nature. Hence, the traditional account is a sign of God’s divine providence, which was bestowed on Muhammad and his Arab followers. At the time of the great messenger’s death, the Arabs possessed their law and religion in its entirety, which came to them through the Quran and Sunna. ?Controversy arises when looking at the traditional account from the standpoint of a historian; it becomes rather incredible to think that such glorious happenings took place in so short a span of time. If we examine a non-Islamic origin, the development of early sources of Islamic law becomes less providential and more gradual and intricate.A good non-Islamic source of the time period is a man named John of Damascus. Born in Syria – either in the year 675 or 676 CE – John evidently became a firsthand source of Islamic doctrine during the late 600s and early 700s CE. More importantly, he was a man of influence. He was Christian, but served as a Chief Administrator for the Muslim caliph. If one were to assume that the Quran was compiled in its entirety even by the turn of the century, then John would serve to contradict this, or at least cast doubt on the notion. In John of Damascus’ book,?Concerning Heresy, he writes rather extensively about Islamic doctrine and legal practices. At one point, he interestingly cites a sura not found in the Quran, and makes mention of “other [Islamic] books”, in regards to religious doctrine. John of Damascus’s writings purport the notion that alternative or separate Islamic sources on theology and law were in circulation, and did not appear to be compiled into one cohesive piece. Additionally, John of Damascus expounds upon the laws and customs of the Arabs at that time. We understand that according to ayat 5:38 in the Quran, a thief should have his left hand cut off; however, John of Damascus writes that the custom of the time period was to flog the perpetrator.We see that a comparison of traditional Islamic history with non-Islamic sources of the period cloud the perception of Islamic law and its origins. Tradition holds that the Quran and Sunna were the source of legality in Islam’s infancy; however John of Damascus and even other traditional accounts (which will soon be explained) show that early Islamic law came from additional avenues.Amalgamation of sources??????????????????If we are to conservatively embrace the classical Islamic tradition and the writings left by John of Damascus, then it is only plausible to assume that Sharia law was borrowed from more sources. Returning to the traditional account, Islam was born out of a nomadic culture and society. Hence, while new theology came by way of the Quran and Sunna, tribal customs remained an important feature of Islamic jurisprudence. Custom being an influence on religious law is logical even based on the classical tradition. Islamic history explains that during the latter reign of the Umayyad Empire and into the rise of the Abbasid Caliphate, Muslim expansion into new territories of the world was immense. As a consequence, the Muslim ruler or caliph became a remote figure to many of his subjects. Therefore, customs and local communities – mixed with emerging religious doctrine – remained the primary models of law.????????????????? By the end of the seventh century customary law gradually amalgamated itself with the Quran and Sunna. Through the fusing of traditions to Islamic legal theory, two new sources of legal thought developed known as qiya (analogy) and ijma (consensus). Qiya served as a base for finding common ground between a documented case and a new situation. The effectiveness of qiya depended on the complicated practice of ijma.?It should be mentioned that qadis (judges) served as the principal interpreters of religious law at the local level. These qadis had wide discretionary powers.?They were the primary representatives of the law who, were not only government employees, but also common citizens who lacked any formal legal training.?Qadis tried to rule as much on the principle of the Quran as possible. However, local traditions still required consideration, which emphasized the practice of qiya and ijma.?Another important note is that unlike the Qur'an and Sunna, ijma (and qiya) do not directly partake in divine revelation. As a doctrine of Sharia, ijma is basically a rational proof.??Qiya and ijma’s adoption as auxiliary provisions for legal jurisprudence further expounds upon the notion that Islamic law and its origins are opaque or fraught with complex precepts that evolved over time. For example,?the ijma, as defined by the ulema (body of Islamic scholars), must be a universal consensus of the community. Consequently then there is no room whatsoever for disagreement. According to one scholar, Mohammad Kamali, ijma also remains unresponsive to the relativity of values in the community. Thus the gap between the theory and practice of ijma remains apparent. Uncertainty is a major underlying theme of ijma, because the definition of the community and who or what that entails becomes a key point of discussion. Some advocate that the community is the body of legalists and scholars, while other interpretations promote that it is no less than the entire Muslim world. Ijma remains a speculative concept within Islamic jurisprudence. Another phenomenon occurred in the eighth and ninth centuries as Muslims attempted to create the proper legal system. This anomaly pertained to the writing down of the supposed traditions of the Prophet.HadithAccording to Islamic tradition, a Hadith is a script or report of either acts performed by Muhammad or something the great Prophet said which pertained to Islamic theology and law. Hadiths established a chain of transmitters wherein each link passed along a crucial message that had been originally imparted by the Prophet. A quick distinction should be made between the Hadiths and the Sunna. The?Hadith is a narration of the conduct of the Prophet whereas the Sunna is the example or the law that is deduced from said narration.In essence, scholars and jurists alike realized that Muhammad served as the ultimate example of piety and righteous living. Therefore, Qadis turned to the Quran and the Sunna as sole standards of legal practice.?A return to the primary sources of legal jurisprudence led to a massive production of Hadiths. The anomaly of composing Hadiths en masse continued well into the ninth century. Hadiths were a conscious attempt – within theological tradition – to pass down the examples and sayings of Muhammad, and therein provide a path on which each Muslim could tread.Accordingly then many scholars ventured to collect these traditions. Certain men were said to have amassed legendary numbers of Hadiths. Al-Bukhari (a well-known Muslim scholar) supposedly gathered and examined over 600,000 traditions of the Prophet. If there was an error in the translation process, then the veracity of Hadiths could be called into question. There existed no axis of regulatory power, which oversaw the writing of such traditions. Forgery was not only a possibility but a common occurrence. Examples of fabrication do exist. One Hadith reads ‘the trusted ones are three: I, Gabriel and Mu’awiyah.’ Clearly the author of such a Hadith possessed Umayyad sympathies, as Mu’awiyah was the first ruler of that empire. Furthermore, few might believe that Muhammad would vault Mu’awiyah to a similar level of spiritual zeal as say himself or Gabriel. Thus the underlying theme of the complex nature of Islamic law is glaringly obvious. Hadiths serve as palpable evidence of Sharia’s cryptic nature and origins.Hadiths morphed into such a complex field that by the ninth century, an entire new religious discipline developed in order to separate good Hadiths from bad ones. Today a growing number of Muslims do not now consider Hadiths a primary sources of legal theory. In the ninth century, a ruler of the state would respond to the complex nature of Islamic law and attempt to codify the Sharia into a written system. Codification of LawHistory indicates that in the beginnings of the eighth century, concern was growing over the new ideologies and methodologies present within the Muslim communities. Various philosophies emerged, despite the attempt by jurists to form laws based on Quranic principles. Local customs continued as the backbone of legal theory.?Also scholars began to view the principles of qiya, ijma, and various Hadiths, with suspicion.?Therefore, the Abbasid Caliphate (ruling Islamic empire of the time) and certain jurists made an active attempt to codify Islamic law; however, this attempt would not succeed. On the other hand, the event of codification will further serve to reiterate the difficult intricacies of Islamic law.Harun al-Rashid (reined from 786 CE to 809 CE) was a well-known Abbasid caliph in his own right, and attention turns now to this ruler in order to understand the case of codification. Furthermore, Rashid’s work in legal theory reveals other possible roots of Islamic law. Again, the eighth century witnessed growing concern over the legal system and its application, but it would be a logical fallacy to presume that at this crucial period in time the caliphs controlled the law.The Sharia was very much in the hands of the jurists at the various local levels. Traditionally, the caliph’s role was to enforce the law rather than create it. His legalists were commissioned with the authorship of the law. The caliph simply served as an emulation of the law, which therein legitimized his rule. Therefore, Harun al-Rashid’s move to actually codify religious law and bring it under the umbrella of caliphal authority was both a complex and controversial event, which adds more possible sources to the true origins of Sharia. The Islamic tradition makes hardly any mention of Rashid’s codification process. This is due to the lack of evidence that exists concerning the affair. Also, Rashid’s project would not serve the legal dialogue well as the event proposes unwanted origins – outside of Quranic and Arab traditions – as contributors of Islamic law.One scholar is convinced that Harun al-Rashid’s codification process took place and made things such as Jewish and Roman law additional facets, and early contributors to the Sharia. Benjamin Jokisch is the author of Islamic Imperial Law. Jokisch writes about the existence of Harun al-Rashid’s project. He advocates that Rashid, and important scholars of the time such as al-Shaybani, ambitiously attempted to codify the law. Al-Rashid formed a legal commission of scholars with Muslim, Christian, and Jewish backgrounds. The group then proceeded with the codification of Islamic law by using outside sources. Jokisch writes that, “apart from Roman law, which constituted the principal basis; they also drew on Jewish law and most probably Canon law. The output was impressive: Shaybani composed the monumental Mabsut.”Jokisch emphasizes the translucent congruencies between Islamic and Roman law. Shaybani’s al-Mabsut serves as the precedent for this concept. The Mabsut was part of a collection of authoritative works known as Zahir al-riwaya. The other books within Zahir al-riwaya are: Jami’ saghir, Jami’ kabir, Ziyadat, Siyar saghir, and Siyar kabir. The Islamic tradition acknowledges Shaybani’s Zahir al-riwaya as a vitally important contribution to Islamic law. However, Jokisch in his work proposes that the Mabsut – in addition to the other legal texts of the zahir al-riwaya – display stark similarities to the Corpus Iuris Civilis. The Corpus Iuris Civilis was a body of law that the Roman Emperor Justinian I had compiled in the early sixth century CE. So, Corpus Iuris Civilis served as a Western form of codification. Emperor Justinian’s work comprised four interconnected parts: Digests, Institutes, Code, and Novels. Jokisch states, “each part of the corpus has a specific function. While the Digests represent the principal and basic work containing almost the whole body of Byzantine-Roman law, the Institutes, form a small summary of the Digests […] All these works have a precise counterpart in Shaybani’s Zahir al-riwaya. The Mabsut, the most comprehensive work of Shaybani, corresponds to the Digests. The Jami’ saghir, a small summary of the Mabsut and intended as a handbook for the judges, is congruent with the Institutes.” According to Jokisch, Shaybani’s Zahir al-riwaya echoes the same principles and designs as Emperor Justinian’s Corpus Iuris Civilis, which was most likely used as a template for writing the Zahir al-riwaya. Hence the Sharia is as much derived from Roman law, as it is other sources. Jokisch also noted Jewish law as an additional origin of Islamic legal theory. Another scholar, Patricia Crone, elaborates on Jewish and Islamic transparencies: “the structural similarities between Jewish and Islamic law is obvious to the naked eye […] Since the order of the subjects in the Mishna and the Muslim law books is related, while in a subject such as ritual purity there is virtual identity of both overall category and substantive provisions, it evidently was not by parthenogenesis that the similarity arose.” The Mishna is sometimes called the “Old Torah” and was the first major Jewish alteration to the oral tradition of the law. Evidently the assertion that Muslim law shares the same genesis as Roman or Jewish statutes threatens as much the culture of the Arabs as it does their religion. Crone also writes: “the Islamic tradition consistently presents Islamic law as a modified version of Arab law.” Thus, to purport that Islamic law bears Roman and Jewish provenance creates important discussions about the Sharia and its origins. With good reason, traditional Islamic historians would elect to omit Rashid’s codifying ambitions from the Arab narrative. According to the traditional account the Quran, Sunna, qiya, and ijma are the mainstays of the Sharia. Harun al-Rashid and Shaybani still appear in the Islamic tradition as important Islamic figures. However, very little is said of their attempts to adopt Roman or Jewish law into Islamic legal theory.The argument over Jewish and Roman law’s influence in Arabia remains an ever-prevalent topic among contemporary scholars. The purpose here is not to explore the nuances of each scholar’s research, and then denounce Islamic law as an outcrop of Roman and Jewish legal theory. These arguments and controversial events in history are brought to light merely to indicate that Sharia origins are difficult to decipher.Sufficed to say, the attempts to codify God’s will never became a historical reality, and the differences between many scholars and legalists only augmented in the eighth century. Thus a new phenomenon emerged in that time period, which still exists today. In the next section the final and better-understood developments of early Islamic jurisprudence will be made manifest. It is important to examine this section from the standpoint of the Islamic Tradition as this important event forms part of that tradition. Islamic Law schoolsAlso in the eighth century, and alongside the developments of codification, madhahib (schools) arose wherein scholars and jurists shared the same ideals and philosophies about the process of legal deduction. Deciphering and comprehending the Sharia and its origins becomes an even greater task with the adoption of madhahib or legal schools. It is pertinent to make note of these institutions as they created a multiplicity of interpretations of Islamic law. In conjunction with the evolution of legal theory, the law schools started at the local centers. According to the traditional account, these schools began as simple institutions, which reflected the regional understanding of the Sharia. It is also believed that at one point hundreds of madhahib existed across the Muslim empire.The rapid growth of various legal institutions, in Islamic history, indicates that still to this point in time, a clear path for interpreting, deducing, and codifying religious laws based on the four sources of the Quran, Sunna, qiya (analogy), and ijma (consensus) had neither been discovered nor implemented. These legal schools developed as an internal need, since no legal authority existed within the political structure of the day.The law schools competed for supremacy, and as tradition explains, only a handful of them survived to contemporary times. The four primary Sunni schools are Hanafi, Maliki, Hanbali, and Shafi’i; two Shiite institutions (Ja’fari and Zaidi) remain very influential in Islamic jurisprudence. Each school derives its name from one of its founders. One could imagine the complex web of legal theory that would develop from each school as the institutions simultaneously attempted to interpret the law. For example, Abu Hanafi (founder of the Hanafi school) refused to eat watermelon because he could find no hadith that cited the Prophet Muhammad as ever having consumed the fruit. Other schools’ founders probably ate watermelon, and possessed different interpretations about the Prophet’s policy on produce. This is one example in many.In essence, the law schools are further evidence that Islamic origins are riddled with delicate intricacies, which cannot be easily deduced from the Islamic traditional account. However, out of this crop of schools came some clarity on properly deducing Sharia law.One scholar, al-Shafi’i, simplified the interpretation process of legal theory and essentially systemized chaotic legal reasoning of the day. Al-Shafi’i – after whom the Shafi’i School is named – made the Sunna the single most important tradition for Islamic law. Al-Shafi’i advocated that the Sunna took precedence over the opinion of the community, or even the companions and successors of the Prophet.?Al-Shafi’i still recognized the four sources of law: Quran, Sunna, analogy, and consensus. He simply demanded that jurists approach the deciphering of a legal issue in that order. The Islamic tradition recognizes al-Shafi’i as an immensely central figure in creating some degree of uniformity in the Sharia. Much of the tradition is true in the sense that al-Shafi’i’s process of law deduction became very influential among the schools. However, the myriad of institutions and their differing interpretations on legal matters still serve to create a complex and dense law system.ConclusionThe attempt to explore and understand the origins and evolution of Islamic law can be daunting. The traditional Islamic account instills the philosophy that in the seventh century the Prophet Muhammad received divine revelation, which was compiled into the Quran. Through God’s providence, the Arabs received the Abrahamic religion of Islam and were oriented back onto the correct monotheistic path. The Quran and Sunna were to serve as the primary sources for then deducing the proper frame of law that all Muslims needed to follow. These two primary sources eventually supplemented with important Arab sources such as qiya (analogy) and ijma (consensus). Conflicting laws arose by way of Hadiths and multiple madhahib (legal schools). The traditional account recognizes this conflict, but the work of men like al-Shafi’i ensured that Islamic law was properly deduced from the four primary sources. However, as we have seen from the works of men like John of Damascus and al-Shaybani, the possibility exists that the Sharia is derived from additional sources. Again the purpose of this work was not to label Islam as a borrowed religion; the focus ever remained on the exploration of the Sharia and its origins. An examination of the traditional Islamic history – coupled with non-Islamic sources like John of Damascus and the research of contemporary scholars – indicates that this subject is fraught with complexities and inconsistencies. Historical research reveals that the provenance and development of Islamic law is still open to debate. Yet despite its suspect and complex origins, Islamic law remains a pervasive topic in contemporary religious study and practice. The precise origins and sources of Islamic law continue to be an expanding field of study and will probably remain as such for the foreseeable future. ................
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