INSTITUTIONAL DEVELOPMENT OF THE MUSLIM CIVILISATION: THE EARLY PHASE (622-660 A.D) DEVELOPMENT OF LAW AND JUDICIARY IN EARLY ISLAM

 Introduction:

Prophet Muhammad (SAWW) taught theological dogmas to his adherents. He also gave as well as them laws concerning all activities of life, individual as well as collective, temporal spiritual. In addition, he created a state which he administered, built up armies which he commanded, set up a system of diplomacy and foreign relations which he controlled.

When he began his missionary life, the violent reaction of his compatriots obliged him to go into exile and settle down in another town, Madinah, where agriculture was the principal means of livelihood of its inhabitants. There he organised a type of state, the first a city-state was established, which was gradually transformed into a State which extended, at the time of his death, over the entire Arabian peninsula together with some parts of southern Iraq and Palestine.

International caravans traversed Arabia. It is well-known that the Sassanians and the Byzantines had occupied certain regions of Arabia, and established colonies or protectorates. In some fairs, particularly of Eastern Arabia, merchants were attracted every year as far away as India, China, and from the East and from the West, as Ibn al-Kalbi and al-Mas'udi have described. There were not only nomads in Arabia, butz also settled people, of whom the Yemenites and Lihyanites had developed a civilization dating from before the foundation of the cities of Athens and Rome.

The customary laws of the country were transformed, when Islam was introduced. And the Prophet (SAWW) had, for his adherents and subjects, the prerogative not only of modifying the old customs, but of also promulgating entirely new laws. His status as the messenger of Allah was responsible for the exceptional prestige he held. So much so that not only his words, but even his acts also constituted law for the Muslims in all walks of life. Even his very silence implied that he did not oppose a custom which was practised around him by his adherents. This triple source of legislation, viz. his words, which are all based on Divine revelation, his deeds, and his tacit approval of the practices and customs of his adherents, has been preserved for us in the Quran and the hadith.

While he was still alive, another source began to germinate, viz. the deduction and elaboration of rules, in cases where legislation was silent, and this was done by jurists other than the head of the State. In fact, there were judges and jurisconsults, in the time of the Prophet (SAWW), even in the metropolis, not to speak of provincial administrative centres. There were instructions which were given to Mu'adh when he was sent to Yemen as judge. There were cases when the provincial functionaries demanded instructions from the central government, which also took the initiative and intervened in cases of incorrect decisions of the subordinates, if and when they came to the notice of the higher authority. The order to change or modify the ancient customs and practices, or the Islamisation of the law of the whole country, could only take place gradually, because the judges did not intervene except in cases brought to their attention.

The death of the Prophet (SAWW) marks the cessation of the Divine revelations which had the force of ordering every law, abrogating or modifying every old custom or practice. Thereafter, the Muslim community was obligated to be content with the legislation already accomplished by the Prophet (SAWW), and with the means of the development of law authorized by this same legislation. "Development" does not mean abrogation of what the Prophet (SAWW) had legislated, but to know the law in case of the law being silent.

The Quran (4:24, 5:1) has, after instituting certain prohibitions, expressly added that all the rest was lawful (in the domain concerned). So, all that does not go against the legislation emanating from the Prophet (SAWW) is permissible, and constitutes good law.

Another source, surprising perhaps, is the direction given by the Quran (6:90) that the Divine revelations were received by the former prophets (and it has named almost a score of them, such as Noah, Abraham, Moses, David, Solomon, Jesus, etc). But its limited only to revelations, the authenticity of which was proved beyond doubt, that is, those range and scope was recognized expressly by the Quran or the hadith to be so.

Only 15 years after the death of the Prophet (SAWW), we see the Muslims ruling over three continents, over vast territories in Asia and Africa and in Andalusia in Europe. Caliph Hazrat Umar (R.A.) had judged the Sassanian fiscal measures to be good enough to be continued in the provinces of Iraq and Iran; the Byzantine fiscal measures he found oppressive, and changed it in Syria and Egypt; and so on and so forth. The whole of the first century of the Hijrah was a period of adaptation, consolidation and transformation. The documents on papyrus, discovered in Egypt, inform us of many aspects of Egyptian administration. From the beginning of the second century of the Hijrah, codes of law were compiled by jurists, one of the earliest of them being Zaid ibn Ali, who died in 120 A.H.

The absence of all interference from the governmental authority in the liberty of the opinionsof the judges and jurists proved greatly favourable for the rapid progress of this science; but it suffered from certain inconveniences too. In fact, an experienced and high-ranking administrator fran-al-Muqaffa complained in his Kitab as-Sahabah in the course of the second century of the Hijrah, of the enormous quantity of divergences in the Muslim case law, be that penal law, the law of personal status or any other branches of law, particularly in Basrah and Kufah, and he suggested to the caliph the creation of a supreme institution for the revision of the decisions of the judiciary and the imposition of a single, uniform law in all parts of the realm. The Suggestion proved abortive. He created, instead, an academy of law. With its forty members, of Quran, hadith, logic, lexicology, etc. - this academy undertook the task of evaluating the case whom each one was a specialist in a science auxiliary to law such as the exegesis of the law of the time, and of codifying the laws: it tried also to fill up the gaps in Muslim law on opinion. One of his biographers states that Abu Hanifah (d. 150 A.H.) "had promulgated half a points on which neither the text nor the precedents of the case law had pronounced any million rules" (cf al-Muwaffaq, 2/137), Malik at Madinah and al-Auza'i in Syria,undertook at the same time a similar task.

If Abu Hanifah laid an emphasis on reasoning, Malik preferred the usage of the population of Madinah to deduction or logical interpretation.

The Quran was "published" only a few months after the death of the Prophet (SAWW). The task of collecting the data on the sayings and doings of the Prophet (SAWW), as well as his tacit approval of the conduct of his companions (a material which is called hadith) was undertaken by

some persons in the life-time of the Prophet (SAWW), and later by many others after left to posterity valuable traditions, based on whatever they remembered on the subject. Some p Prophet's death. More than a hundred thousand of the companions of the Prophet (SAWW) have them down in writing and others conveyed them orally. These materials of very high legal value hare maturally dispersed in the three continents where the companions of the Prophet (SAWW had gone and settled in the time of the caliphs Hazrat Umar (R.A.) and Hazrat Uthman (R.A.).

 The evaluation of the case law and the codification of the hadith were completed as parallel works at the same time.