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The History and Development of Islamic Law

Introduction

The endeavor to understand the origins and evolution of Islamic law can be daunting. This

subject – whether from the standpoint of a historian or theologian – is largely fraught with complexities

and inconsistencies. Many traditions and opinions exist as to how and when Islamic law actually

developed in its entirety. It should be noted that the intention is not to blaspheme Islam as a religion,

but rather analyze some of Islamic law’s possible origins. This history of law spans over thirteen

centuries and much could be said on the matter. However, in order to focus on the early origins of

Islamic law, our scope of interest will not extend beyond the 9th century CE. Therefore, a necessary

cross-examination of a variety of early sources, coupled with an elaboration on the traditional historicity

of Islamic code, will provide for a thorough exploration of Islamic legal theory and its origins.

Early sources of Islamic Law

To comprehend Sharia (the English term used to describe Islamic religious law) and its origins,

one needs to begin at the source, which is to say, at the time of Muhammad. However, it must be

reiterated that the origins of Islamic law are rather enigmatic. Even by examining the traditional history

of Islam in conjunction with non-Islamic sources of the same time period, the true origins of Sharia law

become difficult to decipher.

According to Islamic tradition, the angel Gabriel visited Muhammad in the year 610 CE.

Traditional scholars explain that from 610 CE to 632 CE, Muhammad was in the process of receiving

revelation (which would be compiled in the Quran) and establishing an actual religious empire in

Arabia.1 Thus, by the time of the Prophet Muhammad’s death in 632 CE, Islam had two primary sources

of law and religion, which were incorporated into a flourishing empire. The Quran was the first source

and the second was the Sunna. To clarify the nature of these early sources, we begin with the Quran.

1
Dr. Tahira Basharat, "Islamic Legal Tradition,"
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The present-day Quran is a compilation of 114 suras (chapters) containing a total of 6,236 ayat (verses).

This holy book is not a linear text like the Hebrew Bible. It does not offer a full narrative of the lives of

Biblical prophets like Noah and Moses. Rather the Quranic text highlights these angelic men and their

deeds, but not in the same strict chronology as the Old Testament. In contrast, the Sunna is simply a

sacred guide, which demonstrates the way to live one’s life based on Muhammad’s example and the

Quran. Therefore, the Quran provides general guidelines on matters of law and religion, and the Sunna

elaborates more specifically on the Quran’s brief and ambiguous provisions.2 In essence, these two

sources form a symbiotic relationship.

By 632 CE, Muhammad completed the establishment of the one true Abrahamic religion in

Arabia. Islam, as a monotheistic creed, was God’s gift to the Arabs in response to Christianity and

Judaism, which according to Allah, had become largely polytheistic by nature. Hence, the traditional

account is a sign of God’s divine providence, which was bestowed on Muhammad and his Arab

followers. At the time of the great messenger’s death, the Arabs possessed their law and religion in its

entirety, which came to them through the Quran and Sunna.

Controversy arises when looking at the traditional account from the standpoint of a historian; it

becomes rather incredible to think that such glorious happenings took place in so short a span of time. If

we examine a non-Islamic origin, the development of early sources of Islamic law becomes less

providential and more gradual and intricate.

A good non-Islamic source of the time period is a man named John of Damascus. Born in Syria –

either in the year 675 or 676 CE – John evidently became a firsthand source of Islamic doctrine during

the late 600s and early 700s CE. More importantly, he was a man of influence. He was Christian, but

2
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 38.
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served as a Chief Administrator for the Muslim caliph.3 If one were to assume that the Quran was

compiled in its entirety even by the turn of the century, then John would serve to contradict this, or at

least cast doubt on the notion. In John of Damascus’ book, Concerning Heresy, he writes rather

extensively about Islamic doctrine and legal practices. At one point, he interestingly cites a sura not

found in the Quran, and makes mention of “other [Islamic] books”, in regards to religious doctrine. John

of Damascus’s writings purport the notion that alternative or separate Islamic sources on theology and

law were in circulation, and did not appear to be compiled into one cohesive piece. Additionally, John of

Damascus expounds upon the laws and customs of the Arabs at that time. We understand that

according to ayat 5:38 in the Quran, a thief should have his left hand cut off; however, John of

Damascus writes that the custom of the time period was to flog the perpetrator.4

We see that a comparison of traditional Islamic history with non-Islamic sources of the period

cloud the perception of Islamic law and its origins. Tradition holds that the Quran and Sunna were the

source of legality in Islam’s infancy; however John of Damascus and even other traditional accounts

(which will soon be explained) show that early Islamic law came from additional avenues.

Amalgamation of sources

If we are to conservatively embrace the classical Islamic tradition and the writings left by John

of Damascus, then it is only plausible to assume that Sharia law was borrowed from more sources.

Returning to the traditional account, Islam was born out of a nomadic culture and society. Hence, while

new theology came by way of the Quran and Sunna, tribal customs remained an important feature of

Islamic jurisprudence. Custom being an influence on religious law is logical even based on the classical

tradition. Islamic history explains that during the latter reign of the Umayyad Empire and into the rise of

the Abbasid Caliphate, Muslim expansion into new territories of the world was immense. As a

3
Suzanne Conklin Akbari, Idols in the East: European representations of Islam and the Orient, 1100-1450,Cornell
University Press, 2009 p.204
4
St. John Damascus, "St. John of Damascus’s Critique of Islam," Writings, 37 (2006): 153-160,
http://orthodoxinfo.com/general/stjohn_islam.aspx (accessed March 20, 2014).
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consequence, the Muslim ruler or caliph became a remote figure to many of his subjects. Therefore,

customs and local communities – mixed with emerging religious doctrine – remained the primary

models of law.5

By the end of the seventh century customary law gradually amalgamated itself with the Quran

and Sunna. Through the fusing of traditions to Islamic legal theory, two new sources of legal thought

developed known as qiya (analogy) and ijma (consensus). Qiya served as a base for finding common

ground between a documented case and a new situation. The effectiveness of qiya depended on the

complicated practice of ijma.6 It should be mentioned that qadis (judges) served as the principal

interpreters of religious law at the local level. These qadis had wide discretionary powers. They were the

primary representatives of the law who, were not only government employees, but also common

citizens who lacked any formal legal training.7 Qadis tried to rule as much on the principle of the Quran

as possible. However, local traditions still required consideration, which emphasized the practice of qiya

and ijma.8 Another important note is that unlike the Qur'an and Sunna, ijma (and qiya) do not directly

partake in divine revelation. As a doctrine of Sharia, ijma is basically a rational proof.9

Qiya and ijma’s adoption as auxiliary provisions for legal jurisprudence further expounds upon

the notion that Islamic law and its origins are opaque or fraught with complex precepts that evolved

over time. For example, the ijma, as defined by the ulema (body of Islamic scholars), must be a universal

consensus of the community. Consequently then there is no room whatsoever for disagreement.

According to one scholar, Mohammad Kamali, ijma also remains unresponsive to the relativity of values

5
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
115.
6
Andrew Rippin, Muslims, (New York, NY: Routledge, 2012), 93.
7
Wael Hallaq, An Introduction to Islamic Law, (New York, NY: Cambridge University Press, 2009), 39.
8
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
115.
9
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 155.
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in the community. Thus the gap between the theory and practice of ijma remains apparent.10

Uncertainty is a major underlying theme of ijma, because the definition of the community and who or

what that entails becomes a key point of discussion. Some advocate that the community is the body of

legalists and scholars, while other interpretations promote that it is no less than the entire Muslim

world. Ijma remains a speculative concept within Islamic jurisprudence.

Another phenomenon occurred in the eighth and ninth centuries as Muslims attempted to

create the proper legal system. This anomaly pertained to the writing down of the supposed traditions

of the Prophet.

Hadith

According to Islamic tradition, a Hadith is a script or report of either acts performed by

Muhammad or something the great Prophet said which pertained to Islamic theology and law. Hadiths

established a chain of transmitters wherein each link passed along a crucial message that had been

originally imparted by the Prophet. A quick distinction should be made between the Hadiths and the

Sunna. The Hadith is a narration of the conduct of the Prophet whereas the Sunna is the example or the

law that is deduced from said narration.11

In essence, scholars and jurists alike realized that Muhammad served as the ultimate example of

piety and righteous living. Therefore, Qadis turned to the Quran and the Sunna as sole standards of legal

practice.12 A return to the primary sources of legal jurisprudence led to a massive production of Hadiths.

The anomaly of composing Hadiths en masse continued well into the ninth century. Hadiths were a

conscious attempt – within theological tradition – to pass down the examples and sayings of

Muhammad, and therein provide a path on which each Muslim could tread.

10
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 155.
11
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 49.
12
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
116.
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Accordingly then many scholars ventured to collect these traditions. Certain men were said to

have amassed legendary numbers of Hadiths. Al-Bukhari (a well-known Muslim scholar) supposedly

gathered and examined over 600,000 traditions of the Prophet.13 If there was an error in the translation

process, then the veracity of Hadiths could be called into question. There existed no axis of regulatory

power, which oversaw the writing of such traditions. Forgery was not only a possibility but a common

occurrence. Examples of fabrication do exist. One Hadith reads ‘the trusted ones are three: I, Gabriel

and Mu’awiyah.’14 Clearly the author of such a Hadith possessed Umayyad sympathies, as Mu’awiyah

was the first ruler of that empire. Furthermore, few might believe that Muhammad would vault

Mu’awiyah to a similar level of spiritual zeal as say himself or Gabriel. Thus the underlying theme of the

complex nature of Islamic law is glaringly obvious. Hadiths serve as palpable evidence of Sharia’s cryptic

nature and origins.

Hadiths morphed into such a complex field that by the ninth century, an entire new religious

discipline developed in order to separate good Hadiths from bad ones.15 Today a growing number of

Muslims do not now consider Hadiths a primary sources of legal theory. In the ninth century, a ruler of

the state would respond to the complex nature of Islamic law and attempt to codify the Sharia into a

written system.

Codification of Law

History indicates that in the beginnings of the eighth century, concern was growing over the

new ideologies and methodologies present within the Muslim communities. Various philosophies

emerged, despite the attempt by jurists to form laws based on Quranic principles. Local customs

continued as the backbone of legal theory. Also scholars began to view the principles of qiya, ijma, and

various Hadiths, with suspicion. Therefore, the Abbasid Caliphate (ruling Islamic empire of the time) and

13
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
117.
14
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 67.
15
John Eposito, Islam: The Straight Path, (New York, New York: Oxford University Press, 1988), 81
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certain jurists made an active attempt to codify Islamic law; however, this attempt would not succeed.

On the other hand, the event of codification will further serve to reiterate the difficult intricacies of

Islamic law.

Harun al-Rashid (reined from 786 CE to 809 CE) was a well-known Abbasid caliph in his own

right, and attention turns now to this ruler in order to understand the case of codification. Furthermore,

Rashid’s work in legal theory reveals other possible roots of Islamic law. Again, the eighth century

witnessed growing concern over the legal system and its application, but it would be a logical fallacy to

presume that at this crucial period in time the caliphs controlled the law.

The Sharia was very much in the hands of the jurists at the various local levels. Traditionally, the

caliph’s role was to enforce the law rather than create it. His legalists were commissioned with the

authorship of the law. The caliph simply served as an emulation of the law, which therein legitimized his

rule.16 Therefore, Harun al-Rashid’s move to actually codify religious law and bring it under the umbrella

of caliphal authority was both a complex and controversial event, which adds more possible sources to

the true origins of Sharia. The Islamic tradition makes hardly any mention of Rashid’s codification

process. This is due to the lack of evidence that exists concerning the affair. Also, Rashid’s project would

not serve the legal dialogue well as the event proposes unwanted origins – outside of Quranic and Arab

traditions – as contributors of Islamic law.

One scholar is convinced that Harun al-Rashid’s codification process took place and made things

such as Jewish and Roman law additional facets, and early contributors to the Sharia. Benjamin Jokisch is

the author of Islamic Imperial Law. Jokisch writes about the existence of Harun al-Rashid’s project. He

advocates that Rashid, and important scholars of the time such as al-Shaybani, ambitiously attempted to

codify the law. Al-Rashid formed a legal commission of scholars with Muslim, Christian, and Jewish

backgrounds. The group then proceeded with the codification of Islamic law by using outside sources.

16
Wael Hallaq, An Introduction to Islamic Law, (New York, NY: Cambridge University Press, 2009), 43.
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Jokisch writes that, “apart from Roman law, which constituted the principal basis; they also drew on

Jewish law and most probably Canon law. The output was impressive: Shaybani composed the

monumental Mabsut.”17

Jokisch emphasizes the translucent congruencies between Islamic and Roman law. Shaybani’s

al-Mabsut serves as the precedent for this concept. The Mabsut was part of a collection of authoritative

works known as Zahir al-riwaya. The other books within Zahir al-riwaya are: Jami’ saghir, Jami’ kabir,

Ziyadat, Siyar saghir, and Siyar kabir.18 The Islamic tradition acknowledges Shaybani’s Zahir al-riwaya as

a vitally important contribution to Islamic law. However, Jokisch in his work proposes that the Mabsut –

in addition to the other legal texts of the zahir al-riwaya – display stark similarities to the Corpus Iuris

Civilis. The Corpus Iuris Civilis was a body of law that the Roman Emperor Justinian I had compiled in the

early sixth century CE. So, Corpus Iuris Civilis served as a Western form of codification. Emperor

Justinian’s work comprised four interconnected parts: Digests, Institutes, Code, and Novels.19 Jokisch

states, “each part of the corpus has a specific function. While the Digests represent the principal and

basic work containing almost the whole body of Byzantine-Roman law, the Institutes, form a small

summary of the Digests […] All these works have a precise counterpart in Shaybani’s Zahir al-riwaya. The

Mabsut, the most comprehensive work of Shaybani, corresponds to the Digests. The Jami’ saghir, a

small summary of the Mabsut and intended as a handbook for the judges, is congruent with the

Institutes.”20 According to Jokisch, Shaybani’s Zahir al-riwaya echoes the same principles and designs as

Emperor Justinian’s Corpus Iuris Civilis, which was most likely used as a template for writing the Zahir al-

riwaya. Hence the Sharia is as much derived from Roman law, as it is other sources.

17
Benjamin Jokisch, Islamic Imperial Law: Harun-al-Rashid's Codification Project, (Berlin, Germany: Walter De
Gruyter GmbH & Co., 2007), 3.
18
Subhi Mahmassani, "The Philosophy of Jurisprudence in Islam." (lecture., 1961).
19
Benjamin Jokisch, Islamic Imperial Law: Harun-al-Rashid's Codification Project, (Berlin, Germany: Walter De
Gruyter GmbH & Co., 2007), 105.
20
Benjamin Jokisch, Islamic Imperial Law: Harun-al-Rashid's Codification Project, (Berlin, Germany: Walter De
Gruyter GmbH & Co., 2007), 106.
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Jokisch also noted Jewish law as an additional origin of Islamic legal theory. Another scholar,

Patricia Crone, elaborates on Jewish and Islamic transparencies: “the structural similarities between

Jewish and Islamic law is obvious to the naked eye […] Since the order of the subjects in the Mishna and

the Muslim law books is related, while in a subject such as ritual purity there is virtual identity of both

overall category and substantive provisions, it evidently was not by parthenogenesis that the similarity

arose.”21 The Mishna is sometimes called the “Old Torah” and was the first major Jewish alteration to

the oral tradition of the law.

Evidently the assertion that Muslim law shares the same genesis as Roman or Jewish statutes

threatens as much the culture of the Arabs as it does their religion. Crone also writes: “the Islamic

tradition consistently presents Islamic law as a modified version of Arab law.”22 Thus, to purport that

Islamic law bears Roman and Jewish provenance creates important discussions about the Sharia and its

origins. With good reason, traditional Islamic historians would elect to omit Rashid’s codifying ambitions

from the Arab narrative. According to the traditional account the Quran, Sunna, qiya, and ijma are the

mainstays of the Sharia. Harun al-Rashid and Shaybani still appear in the Islamic tradition as important

Islamic figures. However, very little is said of their attempts to adopt Roman or Jewish law into Islamic

legal theory.

The argument over Jewish and Roman law’s influence in Arabia remains an ever-prevalent topic

among contemporary scholars. The purpose here is not to explore the nuances of each scholar’s

research, and then denounce Islamic law as an outcrop of Roman and Jewish legal theory. These

arguments and controversial events in history are brought to light merely to indicate that Sharia origins

are difficult to decipher.

21
Patricia Crone, Roman, provincial and Islamic law, (London, UK: Cambridge University Press, 1987), 3.
22
Patricia Crone, Roman, provincial and Islamic law, (London, UK: Cambridge University Press, 1987), 2.
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Sufficed to say, the attempts to codify God’s will never became a historical reality, and the

differences between many scholars and legalists only augmented in the eighth century.23 Thus a new

phenomenon emerged in that time period, which still exists today. In the next section the final and

better-understood developments of early Islamic jurisprudence will be made manifest. It is important to

examine this section from the standpoint of the Islamic Tradition as this important event forms part of

that tradition.

Islamic Law schools

Also in the eighth century, and alongside the developments of codification, madhahib (schools)

arose wherein scholars and jurists shared the same ideals and philosophies about the process of legal

deduction.24 Deciphering and comprehending the Sharia and its origins becomes an even greater task

with the adoption of madhahib or legal schools. It is pertinent to make note of these institutions as they

created a multiplicity of interpretations of Islamic law. In conjunction with the evolution of legal theory,

the law schools started at the local centers. According to the traditional account, these schools began as

simple institutions, which reflected the regional understanding of the Sharia.25 It is also believed that at

one point hundreds of madhahib existed across the Muslim empire.26

The rapid growth of various legal institutions, in Islamic history, indicates that still to this point in

time, a clear path for interpreting, deducing, and codifying religious laws based on the four sources of

the Quran, Sunna, qiya (analogy), and ijma (consensus) had neither been discovered nor implemented.

These legal schools developed as an internal need, since no legal authority existed within the political

structure of the day.27

23
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
117.
24
Andrew Rippin, Muslims, (New York, NY: Routledge, 2012), 88-89.
25
Andrew Rippin, Muslims, (New York, NY: Routledge, 2012), 90.
26
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
117.
27
Wael Hallaq, An Introduction to Islamic Law, (New York, NY: Cambridge University Press, 2009), 35.
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The law schools competed for supremacy, and as tradition explains, only a handful of them

survived to contemporary times. The four primary Sunni schools are Hanafi, Maliki, Hanbali, and Shafi’i;

two Shiite institutions (Ja’fari and Zaidi) remain very influential in Islamic jurisprudence. Each school

derives its name from one of its founders. One could imagine the complex web of legal theory that

would develop from each school as the institutions simultaneously attempted to interpret the law. For

example, Abu Hanafi (founder of the Hanafi school) refused to eat watermelon because he could find no

hadith that cited the Prophet Muhammad as ever having consumed the fruit. Other schools’ founders

probably ate watermelon, and possessed different interpretations about the Prophet’s policy on

produce. This is one example in many.

In essence, the law schools are further evidence that Islamic origins are riddled with delicate

intricacies, which cannot be easily deduced from the Islamic traditional account. However, out of this

crop of schools came some clarity on properly deducing Sharia law.

One scholar, al-Shafi’i, simplified the interpretation process of legal theory and essentially

systemized chaotic legal reasoning of the day.28 Al-Shafi’i – after whom the Shafi’i School is named –

made the Sunna the single most important tradition for Islamic law. Al-Shafi’i advocated that the Sunna

took precedence over the opinion of the community, or even the companions and successors of the

Prophet.29 Al-Shafi’i still recognized the four sources of law: Quran, Sunna, analogy, and consensus. He

simply demanded that jurists approach the deciphering of a legal issue in that order.30 The Islamic

tradition recognizes al-Shafi’i as an immensely central figure in creating some degree of uniformity in

the Sharia. Much of the tradition is true in the sense that al-Shafi’i’s process of law deduction became

very influential among the schools. However, the myriad of institutions and their differing

interpretations on legal matters still serve to create a complex and dense law system.

28
Andrew Rippin, Muslims, (New York, NY: Routledge, 2012), 91.
29
Mohammad Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, 1996), 50.
30
Vernon Egger, A History of the Muslim World to 1405, (Upper Saddle River, NJ: Pearson Education, INC., 2004),
119.
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Conclusion

The attempt to explore and understand the origins and evolution of Islamic law can be daunting.

The traditional Islamic account instills the philosophy that in the seventh century the Prophet

Muhammad received divine revelation, which was compiled into the Quran. Through God’s providence,

the Arabs received the Abrahamic religion of Islam and were oriented back onto the correct

monotheistic path. The Quran and Sunna were to serve as the primary sources for then deducing the

proper frame of law that all Muslims needed to follow. These two primary sources eventually

supplemented with important Arab sources such as qiya (analogy) and ijma (consensus). Conflicting laws

arose by way of Hadiths and multiple madhahib (legal schools). The traditional account recognizes this

conflict, but the work of men like al-Shafi’i ensured that Islamic law was properly deduced from the four

primary sources. However, as we have seen from the works of men like John of Damascus and al-

Shaybani, the possibility exists that the Sharia is derived from additional sources.

Again the purpose of this work was not to label Islam as a borrowed religion; the focus ever

remained on the exploration of the Sharia and its origins. An examination of the traditional Islamic

history – coupled with non-Islamic sources like John of Damascus and the research of contemporary

scholars – indicates that this subject is fraught with complexities and inconsistencies. Historical research

reveals that the provenance and development of Islamic law is still open to debate. Yet despite its

suspect and complex origins, Islamic law remains a pervasive topic in contemporary religious study and

practice. The precise origins and sources of Islamic law continue to be an expanding field of study and

will probably remain as such for the foreseeable future.