Evolution of Islamic Jurisprudence Part 2

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The Foundation Stage

The first stage of the development of Fiqh covers the last twenty three years of the life of the Prophet (PBH) (609-632 C.E). The two main sources of law were introduced in that time; the Quran and the Sunnah. The Quran laid down the blueprint of man’s way of life, and the Sunnah filled in the details of how it was to be done. Many of the revelations were situational, therefore the context in which they were revealed was clear to everyone. There were times when the Prophet (PBH) actually waited for a legal provision to be revealed before deciding on a case. At times, the provisions were sent in stages and sometimes there were changes made to it. Such changes have been identified as abrogated verses. In any way, the foundation of the Shaaria was laid down gradually, to make the transition from darkness to light easy.

Meccan Period(609-622 C.E):

The first thirteen years of this period is termed the Meccan period. The Prophet (PBH) was born in Mecca and he received his first revelation in Mecca. There he spent thirteen years preaching. This was the early Muslim period. Muslims were few at that time. Those who became Muslims were under severe oppression. Even the Prophet (PBH) and his whole tribe was subjected to a inhuman three year social and economic boycott by their own tribe. The early revelations were more closely related with the basics of faith and spiritual development. They dealt more with the afterlife than with the provisions of life on earth. The Muslim had no authority over the then society and the early Meccan revelations thus concentrated on their spiritual growth, laying the foundation for a their future role. This foundation was non the less crucial. The bigger challenges for the new Muslims were yet to come and this had made them stronger believers. The details of Shaaria began to be revealed during the last eleven years of the Prophet (PBH), when he had migrated to Madinah and established a free Islamic State there.

Madinah Period(62-632 C.E):

The migration (Hijrah) marks the beginning of this era. The Prophet (PBH) was proclaimed as the ruler of Madinah after his migration there. The first Muslim constitution was drafted then, called the Madinah declaration. This document laid down the foundation of the new state. It provided for all the inhabitants of the new state-Muslims, Jews, Christians and Non-believers and made the Prophet (PBH) de facto head of state. With the framework under place, the Islamic society and legal order started to develop. Logically, it was during this period that the socials and economic laws began to be revealed. At this stage, intoxication and pork was prohibited and punishment for fornication, adultery, theft , murder etc were revealed.

The foundation of Sharia was laid down during this period. In Madinah, legal revelation came regarding family , property, trade, crime and war. Needless to say, some of the provisions shook the very foundation of pre-Islamic pagan norms, where as others merely varied it.

Examples of law during these periods:

Family Law:This is one area where Islam made landmark reforms. Pre-Islamic Arabia had little rights and privileges for Women. They were subjected to the whims of Men. Islam firmly established the rights concerning women. Existing social position of women were elevated almost overnight. Before Islam, there were only loose customs in the Arab society regarding family law. Male polygamous relationship had no limits nor any boundaries. Islam manifestly provided with a strong foundation in this area, consolidating the primary unit of society. Marriage was clearly defined and every other form of co-habitation was banned. Islam totally forbade uncontrolled and whimsical relationships between man and woman. Wife’s right over her husband and husband’s right over her wife was clearly marked. Free women were free to choose their husbands. As it is said in the Holy Quran :

“Wives have the same rights on husbands as the husbands have on them in accordance with well known principles” (2:228)

Marriage was established as the only acceptable relationship between man and woman. Forms and types of marriages have been subjected to debates by later scholars. It is held by the Sunnis that Mu’tah (temporary marriage) was made illegal at this period, whereas some of the Shi’ite believe that it was never abrogated. Nonetheless, it was a marriage in all its sense. It is also debated whether concubinage is permitted in Islam. Majority believe that it was not allowed in its popular sense. From the Holy Quran, it appears that relationship with slave girls were to be also under the veil of marriage, albeit of a different form.

And marry those among you who are single and those who are fit among your male slaves and your female slaves; if they are needy, Allah will make them free from want out of His grace; and Allah is Ample-giving, Knowing.” (24.32)

There is nothing to suggest otherwise. The Prophet (PBH) is said to have taken more wives than the usual limit of four. Therefore some have suggested that except four the rest were concubines. However this is a wrong presumption. He had wed locked all of them in marriage (including Mary the Copt). His crossing the limit of four was a special divine sanction ( likewise he had to pray special prayers which the other Muslims did not have to pray). Mahr was made mandatory for men. It was to be given by the groom to the bride before they consummated their marriage. Detail provisions relating to Mahr was kept flexible.

By a popular tradition from the Prophet (PBH), divorce is a matter most hated by Allah which was made legal. Naturally, as Islam had made systematic provision for the union of man and woman, so did it make systematic provisions for their separation. Both man and woman could initiate divorce. There had diverse range of opinion regarding details of divorce among the scholars. However, there is no doubt that the foundation of it was laid during this time.

Pre-Islamic Arabia did little justice to children. In many cases women would have multiple partners and have multiple children. There was no way of knowing which children belonged to whom. In such circumstances, the woman would designate a child belonging to any man. Islam eradicated this practice.

Trade and Finance Law: Trade law was relatively flexible during this period. The basis of contract was that it had to be mutually agreed and the content would itself had to be legal.Strictest prohibition was ordered regarding interests and trades that resemble gambling. Trade with Jews and Christians were allowed. The basic law of the market was that the traders must appropriately weight their products before selling, that is the goods must match their description and weight as stated. The law of finance was not very complex at this stage. However, the basic principles were established during this time. The sophisticated law of Islamic finance now being followed all around the world today in Islamic banking is derived from the foundation established during this era.

Criminal Law: Severe punishment was enacted for murder, adultery,rape and treason. They carried the death penalty; but had strong procedures to be followed before offenders can be sentenced. The Quran manifestly gave direction on theft, fornication and slander among others. The principle was that the offender would receive equal wounds against the wounds he inflicted upon others. Law of evidence was also set out during this time.

Law of War: Along side Arab customary law of war, Islam provided solid rules and regulations. The division of the booty of war was a major one. For example, a portion of the booty was divided among the soldiers, a portion to the state etc. The Prophet (PBUH) had specifically prohibited the killing of unarmed civilians. Even a tree should not be destroyed. [To be continued…]

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