Islamic Law - Historical Developments

Historical Developments

The origin of sharia is the Qur'an, believed by Muslims to be the word of God, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca).

Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation. During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law. Since then, changes in Islamic society have played an ongoing role in developing sharia, which branches out into fiqh and Qanun respectively.

Among the Muslims, tribal laws were adapted to conform to sharia "for they could not form part of the tribal law unless and until they were generally accepted as such." Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations." So, while "each and every law must be rooted in either the Qur'an or the Sunnah," without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, "My community will never agree in error".

The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions. The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence. The Abbasid made the institution of qadi independent from the government, but this separation wasn't always respected.

Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Qur'an or the sunnah. Imam Shafi'i declared: "a tradition from the Prophet must be accepted as soon as it become known...If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favor of the tradition from the Prophet." Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behavior for Muslims.