During the period of the Umadayyas, the important step of appointing Kadis was taken. The pre-Islamic institution of arbitrators no longer remained adequate to the needs of the new Arab society, and, therefore, it became imperative to supplant the Arab hakim by the Kadi (judge).
The credit of laying down the foundations of Muslim law goes to these Kadis, who, while tendering decisions in cases coming before them, exercised a very wide discretion. In this process, they drew freely upon the custom, practice, administrative regulations and the Koranic norms.
The Kadis set the ball rolling for Islamicizing the customary law. As we reach the eighth century A.D., the work of the Kadis became highly specialized, and the practice of appointing specialists in law was established. Within the purview of these specialists of law came the entire field of customary law, existing practices, religious and otherwise, and the rules of Islamic law.
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And law was mingled with religious and ethical ideas, thereby emphasizing the imperativeness of duties of every Muslim, in all walks of life and in all matters. Thus, the scope of law was much widened.
The fact of the matter is that the Muslim society had advanced considerably from the time of the Prophet. During the times of the Umadayyas new social situations, new social conditions demanded new sets of rules. Looked at from that angle, the Kadis of the Umadayyas period were the first Muftis of Islam.
These specialists, who grew in number, constituted “the ancient schools of law”. They were not as clearly demarcated as were the later schools; nor did they follow any individual master. These specialists were private individuals who were held in high esteem and revered, both by the people and the rulers, because of their profound learning and knowledge.
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These schools flourished at Kufa and Basra in Iran, at Madina and Mecca in Hizaz, and also in Syria. Whatever differences existed between them, they were, on account of geographical factors, local variations in social conditions, customs, and practices. These schools, for the first time, took the Koranic injunctions seriously. They drew conclusions from the religious and ethical body of the Koranic maxims.
The outstanding features of these schools are that they developed the theory of the “living traditions of the schools”. On the one hand, effort was made to consolidate and systematize the existing traditions, practice customs, and to put them on the scales of ideal element in law that ought to be, and thus were laid the foundations of the normative sunna.
On the other hand, the consensus of the scholars, to use Schacht’s phrase, doctrines achieved in each generation, represented the synchronous aspect of the living tradition of each school. It was so worked out that whatever was the consensus of the last generation was accepted as the normative practice.
Thus, the Iraqians “transferred the term Sunna of the Prophet from its political and theological into a legal context, and identified with it the Sunna, the idealized practice of the local community and the doctrine of its scholars”.
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The idea of the living tradition of the Syrians was “the uninterrupted practice of the Muslims, beginning with the prophet, maintained by the caliphs and by the later rulers, and verified by the scholars”.
A reaction had set in against this living tradition. This was opposed by the tradionalists. The traditionalists propounded the notion that formal traditions (ahadith) coming down from the Prophet, superseded the living traditions of the ancient schools of law.
The traditionalists disliked “all human reasoning and personal opinion which had become integral part of living tradition of the ancient schools and which had, indeed been constituent element of Islamic legal thought from its very beginning”. Ultimately, the traditionalists scored the point, and the living tradition of the ancient schools was buried in the pages of history.
The era of Muslim law—the era of the ancient schools of law and of the movement of the traditionalists in opposition to them—is the era where two opposite tendencies existed side by side: one of Islamicizing the law, and the other of rationalizing and systematizing it. But, gradually, as the rules developed and settled, the freedom that was enjoyed by the jurists was suppressed and fanaticism set in.