History of Fiqh Muamalat (revised) PDF

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History of Fiqh Muamalat in Islam...

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1.5 HISTORICAL EVOLUTION OF FIQH MUAMALAT Islamic commercial law starts with the revelation of the Qur’an. The unique validity of Islamic commercial law comes from it being manifested will of God. Its origins in addition to the Holy Qur’an are to be found in the judgements given by the Prophet (pbuh) himself, reflecting the application of rules, principles and injuctions already enunciated in the Qur’an. As the centuries passed these rules grew into a complete system of law. Since the time of Prophet, Muslims have understood that the means by wich the believer earns God’s favor, and with it salvation, is through obedience to the Divine Command as conveyed for all time in the words of the Qur’an and the Sunnah. The Sunnah is embodied in a great many written reports about the Prophet’s lifetime, each subjected to a careful process of authentication in various degrees. Thus the Sunnah, like the Qur’an ends up as a written text specific rules of behavior, indeed rules to govern all spheres of human life (include economy, trade, finance, etc.) After the Prophet (pbuh) demise, there were many informal groups of Companions and the Followers discussing and advising on the interpretation of the rules of the Qur’an and Sunnah. These groups gradually developed into more organized schools, and produced the schools of thought (mazahib). Eventually four slightly different schools of thought came to be recognized in Sunnism. Each of these schools of thought has its own system of theory and applications of law, although each recognizes the legitimacy of all the others. These schools are the Hanafi, the Maliki, the Hanbali, and the Shafie. The Hanafi School is followed by the majority of Sunni Muslims in Lebanon, Iraq, Syria, Turkey, Afghanistan, Pakistan, and Bangladesh and in different places in India. The Moors who ruled Spain were followers of the Maliki School which, nowadays, is found mostly in Africa. The Hanbali School is predominant in Saudi Arabia. Followers of the Shafie School today are found extensively in South East Asia. The four schools give different emphasis to the sources of the law. But all are unanimous in requiring that Islamic law be God-given and not man created. As such, the Qur’an and the Sunnah are fully binding. The other sources (ijmak and qiyas) are in one way or another justified by reference to these two basic sources. Islamic commercial law developed by the development of Islam itself and by the expansion of Muslim community from difference races, cultures and traditions. When Islam conquests other part of non-Arab lands shortly after the demise of the Prophet (pbuh), it was found difficult to enforce the Islamic law as the universal civil law of the whole Muslim community. The new Muslim community consists of peoples with their own ancient laws and customs, many of which they were unwilling to relinquish despite their acceptance of Islam. The continuation of a custom of a particular place or community is allowable under Islamic law, and may in fact assimilate into the Islamic law. Much later, in the last day of Ottoman Empire and under Western colonization, a system of secular law arose to supplement or replace Islamic law in all civil jurisdictions (excluded marriage and inheritance law).

Until the 19th century, no definition of contract is to be found in the treatises of Islamic law. This is because Islamic law never developed a general theory of contract. Instead, the overwhelming majority of Muslim jurists have focused on the contract of sale which they regarded as the model for all sorts of contracts. The Islamic civil law codification took place in the 19th century, namely the Majallah al-Ahkam al-‘Adliyyah and Murshid al-Hayran started to give a precise definition to a contract.

1.6 The stages of the history of fiqh muamalat 1. Faundation or the period of Revelation: the era of the Prophet Muhammad (Pbuh) (609632CE) a. This period is considered as the most important period as it lays down the foundation of Islamic law. b. This period consists of two phases: Mecan (13 years before migration) and Medinan (10 years after migration) c. Mecan revelation encompass on faith and moral values, whereas Medinan legislation concentrate on legal injunctions (al-ahkam al-‘amaliyyah) d. Beside the Quran and the Sunnah, ijtihad plays the important role to determine the law in this period. 2. Establishment: the era of the Khulafa’ al-Rashidin (632-661CE) a. The Quran was codified during the time of Abu Bakr al-Siddiq (ra) and completed (the compilation) during the time of Uthman b Affan (ra) b. Umar al-Khattab (ra) initiated to collect and compile the Sunnah but not completed. c. Most of the fiqh issue dealt were real issued that occur in the society d. Ijtihad developed in the sense of freedom of opinion amongst Companions e. There were no different mazahib during this period. 3. Building: Umayyad dynasty (661CE – the middle of 8th century CE) There are several obvious developments that had taken place during this period: a. Increase in the issues related to fiqh and ijtihad b. Spreading and fabrication of hadiths c. Emergence of the school of hadith (madrasah al-hadith) and the school of opinion (madrasah al-ra’yi) d. The Sunnah was not completely compiled during this period. However, Umar Abd al-Aziz instructed Ibn Hazm to compile it. 4. Flowering: Abbasid dynasty (The middle of 8th century CE – the middle of 10th century CE). The Salient features of this stage: a. Emergence of competent mujtahidun and the spread of debate and discussion. b. Compilation of fiqh

The history of compilation of fiqh began during the time of the Prophet (Pbuh) when he instructed some of his companion (sahabah) to compile ruling related to zakat and it was distributed to his Govenors in order to implement them. Similar trend was followed during the period of the companions but there was no systematic compilation until the second century of hijrah. During this time the scholars of al-Madinah compiled the opinions and views of Ibn Umar, Aishah, Ibn Abbas and some of the successors (tabi’in). An example of such compilation is al-Muwatta’ written by Imam Malik. The scholars of Iraq compiled the legal views of Ibn Mas’ud, Ali b Abi Talib, Suraih and others. An example of such compilation done by Ibrahim al-Nakhaie that consists of legal rulings, hadiths, opinions of the companions and successors. c. Emergence of Difference Schools of Islamic Law. The four well known mazahib namely The Hanafi, Maliki, Shafie and Hanbali established during this stage of the development of Islamic law. 5. Consolidation: from the declined of Abbasid dynasty (about 960CE) to the invasion of Baghdad by the Mongols in the middle of the 13th century CE. The obvious tendency was to follow the ijtihadat that was made by the earlier scholars and limit fiqh to these opinions. This phenomenon resulted in scholars calling for the closing of the door of ijtihad. 6. Stagnation and reinvention: from the sacking of Baghdad (1258) to the present time. a. The prevailing characteristic of this period was that of taqlid (the blind following of a mazhab). b. Despite that, there were some reformers who called for the exercising of ijtihad such Ibn Taymiyah (1263-1324CE), al-Shawkani (1757-1835CE), al-Dihlawi (1703-1762CE), alAfghani (1839-1897) and Muhamad Abdud (1849-1905CE). 7. Resurgence: starting from the middle of 19th century CE a. From the middle of the 19th century, nearly every Muslim country, under direct or indirect pressure from the newly dominant western countries, adopted laws and legal systems based on Western models, particularly in civil and commercial sphere. Only a few were able to avoid the westernizing tide and retain their traditional legal systems. b. As Muslim countries gained independence, they usually adopted codes paying deference to Islamic law. Even these, however, remained close in form and substance to Western codes. c. Calls to return to the application of Islamic law emerged into prominence during the 1970s. Many Muslim rulers and government responded to these calls with promises to bring domestic legal system into accord with Islamic law, but progress has been slow, particularly in the field of contract and commercial law. d. Concrete indications of legislative movement toward Islamic law are found chiefly in constitutional provisions recognizing shariah as a “principal source of legislation” in Jordan and UAE. But no country has abolished or revised all, or even most, of its Westdrived laws and legal institutions.

e. Clearly, recognition by Muslim states of Islamic contract and commercial law is to continue to advance, it will do so gradually and without wholesale break with Western legal norms and methods. Even though Islamic commercial law plays a minimum role to regulate contemporary trade and finance, the development of a regulatory framework upon new research and study, for a successful operation of trade and finance under the Shariah discipline, has been sought by Muslim scholars all over the world. Clearly, adapting classical Islamic commercial law to the modern financial world is a huge task. While a great deal has been achieved – for which a great many brilliant and hard-working scholars – the legal elaboration of Islamic finance is still at a beginning stage. But the pace of progress is increasing. Finance is presently the most innovative area of contemporary Islamic commercial law....