Islamic Law

DEVELOPMENT OF ISLAMIC LAW

It might be useful to have a quick glance at the history of the development of Islamic law. In the lifetime of the Prophet (SAW ), the law could be enacted and amended by divine revelation and any disputes or problems that could be referred to him for solution. After his demise, the law could not be developed further through divine inspiration since the medium of Divine communication was no more. If any problems, arose the Muslim had to solve them by reference to the Qur'an or the Sunnah. It was the practice of the early caliphs to try arrive at solution through discussion and consensus among those best fitted to do so. Practical problems received their practical solutions. The caliph n power took an active role in the deliberations. When once a solution was arrived at, it became binding on other Muslim. The early caliphs never tried to dictate or impose their wills, In many cases the caliphs were told that the solutions they proposed were contrary to the teachings of Islam, and they accepted the criticism and at under the circumstances. The practice of the Muslims thus conformed to the teachings of Islam.

After the time of the early caliphs, there came a time when the development of Islamic law came to be divorced from its practice. The Umawi caliphs, for the most part, left the administration of Islamic law to the state officials, the qadis, not all of whom were qualified to exercise the duty of ijtihad. The result was that the law that was administered by the qadis ceased to draw its inspiration from Islamic law. Practice diverged from theory, and it became dangerous to rely on the practice of the Muslims as a mirror of the conscience of Islam. The scholar of Islam criticized the administration of the law and in the process built up their own system of theoretical law.

Thus the law was developed by scholar jurist rather than by judges or by an executive in power. This meant that Islamic law had no longer the advantage of the Muslims experience of living and marrying, of buying and selling, and contracting. This explains why the student f Islamic law or a Qadi today seeks the normative injunction of Islamic law not in the decisions of the courts or the rulings of the executive power but in the theoretical writings of scholar jurist. There is of course a " silver lining, namely " that the efforts of scholar jurist have helped to preserve Islamic law and to keep in free from the influence of secular rulers and their agents, even when these were Qadis. For this we should be grateful to the scholar jurist. They have left a vast treasure of learning as an inheritance to us. It is for us to learn how to use it.

In the thirteenth and fourteenth centuries, the Muslims came under the influence of the Europeans. Most Muslims countries lost their independence. Executive, legislative and judicial power came to be influenced or exercised by the Europeans. European code and system of law were substituted for Islamic law and for centuries the law of the land was exercised, by decree of the colonialist rulers. In the Arab countries, European commercial, criminal, and civil codes were adopted. In Turkey, after an attempt to codify the Theoretical civil law, the whole of the Muslim law was abandoned in favor of a European code. In India, the Penal Code, Evidence Act, Contract act, and others were enacted, again to replace Muslim law. In most cases, Muslim governments and people are still trying t adjust to this invasion of foreign legal systems and practices. The result, however, are still far from satisfactory.

In some Arab countries, attempts have been made to replace the European codes more compatible with Islamic law. New civil codes were promulgated in Egypt, Libya, and Iraq. More recently, attempts are being made in a number of Muslim countries to reintroduce Islamic criminal law. Muslim scholars everywhere feel that they should return to that law. Unfortunately, their difficulties are exacerbated by a class of Western educated judges and executives who combine ignorance of Islamic law and jurisprudence with inferiority complex toward Western laws and institutions t which they have become accustomed