The history and development of Uṣūl al-Fiqh and Fiqh in general passed through four primary eras: 1) The Era of the Prophet 2) The Era of the Rightly Guided Caliphs 3) The Era of the Companions and elder Successors and 4) The Era of Codification.
The development of Fiqh was a historical process. As long as the Prophet was alive, his example was necessary and sufficient for the guidance of the community. The Qur’an presents the doctrinal principles and ethical underpinnings of the Shariah. The Prophet clarified, substantiated and implemented the principles of the Qur’an. His death presented an historical challenge to his Companions to continue the process of realizing God’s will in the matrix of human affairs. The first generation of Muslims rose to this challenge. Where revelation was explicit or where the Prophet had given clear direction, they followed that direction. Where the Qur’an and Sunnah provided general principles but no directive for explicit implementation, they used the process of consultation and reasoning to find solutions to the pressing problems of the day. With time, this methodology developed into a broad tradition that was practiced by the first four Caliphs. This tradition is referred to as the Sunnah of the Companions, or the ijma (consensus) of the Companions. Such consensus was sometimes universal. At other times, it was the consensus of only some of the Companions. Differences of opinion were not uncommon. Such differences were not only tolerated, they were respected. The subtle nuances of Arabic and the cosmic power of the Qur’anic language, made differences in emphasis inevitable. These differences had their impact on the development of different schools of Fiqh.
Although the principles of Islamic jurisprudence were not documented until later centuries, we see the first full and complete implementation of the Shariah in a pluralistic society under Omar ibn al Khattab (r). It was Omar (r) who showed by his example that justice before the law was an Islamic duty. He established a full-fledged department of justice, appointed judges and gave them specific instructions, which included the following principles:
All men are equal before the law.
Justice is an Islamic duty ordained by the Qur’an and Sunnah of the Prophet.
Human beings are responsible for their actions.
All adult Muslims are legal persons and are answerable in accordance with the Shariah.
The burden of proof falls on the plaintiff.
All parties must be allowed to produce evidence for their positions.
If evidence contradicts a judgment, then the judgment must be revoked.
When the Qur’an and the Sunnah of the Prophet are silent on a matter, then extrapolation may be used from similar cases.
The collective will of the Muslim community provides a legitimate basis for law.
These principles were incorporated in later centuries by successive Muslim dynasties in their jurisprudence canons. The Caliph was not above the law. There are many examples from the life of Caliph Ali ibn Abu Talib (r), which illustrate how the head of state was treated the same way as any other citizen. Indeed, it was one of the judgments that Omar (r) rendered in a case brought by a Persian non-Muslim that led to his assassination.
Further challenges emerged with time. As the Companions passed away, intellectual leadership of the community passed on to the Tabeyeen (those who had followed or learned from the Companions). This was the second generation of Muslims. With time, this generation too passed away. The infusion of non-Arab blood into the Islamic milieu in the 8th century presented additional challenges to the Islamic jurists. There emerged the Mujtahideen and the Fuqahah who successfully took on these challenges. In the process, choices had to be made and these choices modulated and transformed Islamic history.
If one had lived in the year 740, one would witness with awe the extent of the Islamic Empire. Muslim armies had crossed into France and were knocking at Switzerland. Constantinople (modern Istanbul), the seat of the Byzantine Empire, had undergone multiple assaults. Muslim merchants had met up with the Chinese in Sinkiang along the ancient Silk Road and were actively trading in the Indonesian islands and eastern China. The center of Vedic culture in Sindh (in today’s Pakistan) was under Muslim rule.