Pre-Islamic Arabian Society:
Muslim Law had no existence before Mohammad became a Prophet and there was no general law of the races inhibiting the Arabian Peninsula. Each tribe was governed by its own laws, and matters in dispute were either referred to the Chief, or decided by an appeal to the sword. The conduct of the Arabs was regulated by customs. Most of the customs of the Arab people were barbarous and inhuman. Often the parents buried alive their female child. Usury, i.e., taking a very high interest on the debts, was common. Gambling was rampant.
It was days of superstition and idolatry; the position of women was not much better than that of animals; they had no legal rights; in youth they were the goods and chattels of the father, after marriage the husband became their lord and master. Polygamy was universal, divorce was easy and female infanticide was common. Such was the condition of the Arabian society in which reforms were introduced by Islam to bring about a complete transformation of the society.
The Arabs themselves were so much conscious of this change that they began to refer to the period before Mohammad as the Ayyam-e-jahiliya, i.e., the period of ignorance or rather wildness or savagery in contrast to the moral reasonableness of a civilized man.
Historical Development of Muslim Law:
Since the Sharia originated with Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Muslim legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire.
The classic Sharia of the 10th century represented an important part of Islam’s golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.
- During the Mughal Dynasty:
Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.
- During the British Era:
The Muslim law didn’t came till the enactment of Indian penal code (IPC) and the procedural laws. However the disputes with respect to the natives of Calcutta lay with the Muslim practices.
SCHOOLS OF MUSLIM LAW:
THE SUNNI SCHOOLS
There are four ancient/primary sources of Islamic law-the Quran the Sunna, the Ijma and the Qiyas. The main cause of division among Sunnis is probably their different degree of stress on one or more sources of law, though the Quran is accepted by all these.
The principles of the four sub-schools of Sunni school are substantially the same and they differ from each other merely in matter of detail. Each jurists having his own interpretation, had followers and thus the constituted a distinct or separate school.
The Sunni schools are:
- The Hanafi School
- The Maliki School
- The Shafei School
- The Hanbali School
(1) The Hanafi School
This is the most famous school of Sunni law.
This school of the Sunni sect is named after its founder Abu Hanifa who was an eminent scholar of his time and was widely known for his outstanding logical reasoning and technical legal thought.
His main contribution was that instead of accepting each and every tradition as law he tried to find out the law in the texts of Quran itself through analogical deduction.
In this manner he preferred scientifically concluded private judgement based on Quran over a blind reliance on the tradition.
According to him the law must be formulated in accordance with the changing needs of the society. In the absence of a law in Quran it may also be obtained by the unanimous decisions of the jurists.
(2) The Maliki School
This School of muslim law was established by Malik-ibn-Anas of Medina. He was a great scholar and is regarded to be an authority on traditions.
Unlike Hanafis this school emphasizes the importance of traditions as a ‘source of law’. It recognizes the traditions of the companions, and of successors of the companions.
According to Maliki School, as far as possible, the new rules should be obtained exclusively from the traditions.
If it is not possible then only Qiyas and Ijma may be taken into consideration. But this school recognizes Ijma of only such jurists who lived in Medina. The scope of ljma as a source of law is therefore limited under this school. Malik and the subsequent jurists of this school had the privilege of being judges and as such they had to solve day-to-day problems of the public.
(3) The Shafei School
Founder of this school, Ash Shafei was an eminent scholar of Islamic jurisprudence. He was noted for his balance of judgment and moderation of views.
He developed his doctrine at Baghdad and Cairo. He relied more upon traditions than Abu Hanifa but less than his master Malik. His reliance on the traditions was more critical than that of Malik. He examined the tradition in the light of legal reasoning and logic in order to get a very balanced and systematic rule of law.
Throughout his life he endeavored to systematize the traditions. Joseph Schacht rightly observes that his legal theory is the achievement of a powerful individual mind, and at the same time a logical outcome of a process which started when traditions from the Prophet were first adduced as arguments in law.
(4) The Hanbali School
The fourth and the latest school of the Sunni sect was established by Imam Ibn Hanbal. His peculiar feature was that he rigidly adhered to the traditions of the Prophet. His teaching was characterised by blind reliance on tradition.
He laid much stress on traditions and allowed a very narrow margin to the doctrine of analogy. It is therefore said that Hanbal was traditionist rather than a jurist. He relied so much upon the traditions that other sources of law namely ljma and Qiyas were neglected by him.
He recognised ljma only of the Companions of the Prophet. Under the school therefore, there is no scope for private judgement and human reasoning.
THE SHIA SCHOOLS
Ali was acknowledged to be the first Imam by the Shia community. He was accepted as the temporal as well as the spiritual head of the community. After the death of Ali, his two sons Hasan and Hussain became the second and the third Imam respectively.
After Hussain’s death, his son Zain-ul-Abdeen succeeded as the fourth Imam. Upto this stage the Shia community remained united but afterwards there were divisions and sub-divisions of this sect.
Zain-ul-Abdeen had two sons, Zyad and Muhammad Baqir. First split took place after the death of Zain-ul-Abdeen when some of the Shias acknowledged Zyad as their Imam but the majority followed Muhammad Baqir.
The followers of Zyad formed a separate sect called Zayds whereas Muhammad Baqir was accepted as the fifth Imam by the majority. This was the first division of the Shia sect. After Mohammad Baqir’s death his son Jafar Sadiq became the sixth Imam of this majority group.
Upon the death of Jaia Sadiq there took place the second split in the Shia community.
He had two Ismail and Musa Kazim. Here again, one group recognised Ismail (the elder son) as the seventh Imam but to thę majority of them the younger son Musa Kazim was the seventh Imam. Followers of Ismail were called Ismailis and constituted the second school of Shia sect. In the other section of Shia community headed by musa kazim.
This consists of three schools.
They are:
- Ithna Asharia School
- Ismailia School
- Zyadis School
1. Ithna Asharia School
This school is called as Imamia School. The followers of this school believed that starting from Ali there had been twelve Imams who possessed spiritual powers.
2. Ismailia School
The followers of Ismail are called the Ismalias or the Seveners because according to them there had been only seven Imams.
3. Zyadis School
The Zyadis were the first to defect them from the general body of Shia Muslims.
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