Citation for Consolidation, Reform, and the Current Status of Islamic Law

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MLA

Kamali, Mohammad Hashim . "Law and Society." In The Oxford History of Islam. Ed. John L. Esposito. Oxford Islamic Studies Online. Dec 5, 2021. <http://www.oxfordislamicstudies.com/article/book/islam-9780195107999/islam-9780195107999-div1-27>.

Chicago

Kamali, Mohammad Hashim . "Law and Society." In The Oxford History of Islam. , edited by John L. Esposito. Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/book/islam-9780195107999/islam-9780195107999-div1-27 (accessed Dec 5, 2021).

Law and Society >
Consolidation, Reform, and the Current Status of Islamic Law

Poor access to Islamic law has been one of the problems that has hampered efforts toward the revival of rational and independent reasoning. The bulk of scholastic Islamic law is contained in voluminous works of medieval origin in Arabic, which are poorly classified and difficult to use; this scholarship tends toward scholastic exclusivism and isolation. The 1876 Ottoman work entitled Mejelle was an attempt by the Turkish government and the ulama to codify the Hanafi law of civil transactions. It contains 1,851 articles that primarily address contracts and transactions, evidence and court procedures, but it excludes family law. It was followed in 1917 by the promulgation in Turkey of the Law of Family Rights. This law used Hanafi fiqh as well as that of the other three legal schools more widely than the Mejelle. Although Turkey itself abandoned these laws, the works remained influential nevertheless. The 1929 Egyptian Law of Personal Status drew not only from the justice legacy of the four leading schools but also from the opinions of individual jurists, when these issues were deemed to be conducive to public interest. The 1953 Syrian Law of Personal Status was another step in the direction of attempting independent reasoning through the modality of statutory legislation. This neo-ijtihadi approach to legislation was followed by similar attempts in Morocco, Tunisia, Iraq, and Pakistan, where statutory reforms were introduced in the traditionally Shariah-dominated laws of marriage, polygyny, and divorce.

The Islamic Law Conference that was held in Paris in 1951 called for the compilation of a comprehensive encyclopedia of fiqh, and several projects were undertaken toward that end. The University of Damascus began a project in 1956, and the governments of Egypt and Kuwait started their own projects in 1951 and 1971, respectively. The multi-volume Egyptian and Kuwaiti encyclopedias, both bearing the titles Mawsua al-Fiqh al-Islami and al-Mawsua al-Fiqhiyya respectively, have continued over decades. The Kuwaiti edition has been completed in 45 volumes in 2006, but its Egyptian counterpart in 21 volumes was published in 1990. These are multi-author works. The Syrian jurist, WahbaÑ al-Zuhaili has added to the list his own single-authored work, Mawsua al-Fiqh al-Islami in twelve volumes (2012).These and other compilation projects have shown latitude by treating the major schools of fiqh strictly on the merit of their contributions and the entries in them are not confined to the contributions only of the four leading schools but extend to eight, adding the Zahiri, Shi’a—Jaafari, Zaydi, and Ibadi schools. The information compiled is relatively free of sectarian bias. Yet by the very terms of their reference, the encyclopedic collections were designed to consolidate rather than to reform existing Islamic law. Undoubtedly they provide valuable resources, but they consist basically of an uncritical description of the scholastic heritage of fiqh.

The need was then felt to supplement and enrich the scope of these endeavors by establishing a forum to facilitate collective interpretation on new issues. A project was undertaken by the Organization of Islamic Conference (now Cooperation), which led to the formation of the Fiqh Academy in Jidda, Saudi Arabia, in 1981 and another Fiqh Academy in Mecca by the Muslim League. India and Pakistan have each established fiqh and Shariah academies of their own. There are also a number of international institutes and organizations that undertake specialized research in Islamic legal themes. An even earlier attempt along these lines was made by al-Azhar University in Cairo, which set up the Islamic Research Academy in 1961. Following that, King Abdul Aziz University in Jidda established its International Center for Islamic Economic Research in 1977. The International Islamic University of Malaysia and that of Islamabad started operations in the early 1980s and both institutions are currently building a stronger and more balanced infrastructure for specialized research efforts in Islamic law. International Islamic universities have mushroomed in recent decades and a feature they have in common is to adopt English as their main medium of instruction.

Islamic law relates to society more effectively in some areas than others. In the areas of matrimonial law and inheritance, the Shariah has remained in force with revisions and has been adopted by statutory legislation in almost every Muslim country. Saudi Arabia and Afghanistan have generally retained the Shariah. In most other areas, however, the Shariah has been marginalized for many reasons. Some of the earlier distortions, such as the closing of the door of ijtihad and the ensuing prevalence of the imitative tradition of taqlid, were exacerbated by persistent alienation between the ulama and government. This was condoned and reinforced by the subsequent domination of Western colonialism and the ascendant secularity that came with it. Western law dominated almost every aspect of the law, from constitutional to commercial law, to civil litigation, criminal procedure, and evidence. The abolition of Shariah courts in Egypt in the late nineteenth century was followed by similar developments in other countries and the prevalence of national courts that often combined elements of both Western and Shariah laws. This pattern is currently prevalent in most Muslim countries, although some countries, such as Malaysia, operate a dual system of national and Shariah courts, each having separate jurisdictions. In recent decades many Muslim countries have attempted to revive the Shariah on a selective basis and in varying degrees. Only Iran has adopted it generally. Measures have also been taken in Middle Eastern countries, Pakistan, Sudan, Egypt, and elsewhere to confirm that their constitutions and laws of court procedure, property, and evidence are acceptable to the Shariah. The latest development in Malaysia was the government's announcement in early 1997 that they would raise the status of the Shariah courts, to bring them up to that of the civil courts. Islamic laws of transactions have also seen a concerted revivalist effort in the wake of successful experiments in Islamic banking, Islamic bonds (sukuk) and Islamic insurance (takaful). Considerable interest is also taken by Islamic institutions of higher learning in the Islamization of disciplines, with a view to harmonizing the teaching of social sciences and humanities with Islamic values and outlook.

These efforts continue, but they have not been devoid of difficulties because of political upheavals and unrest that have been a feature of the Islamic resurgence movement in recent decades. Governments in Muslim lands are apprehensive of these movements and the prospect of the ulama and Islamist ascendancy to power. The Algerian experience in the mid-1990s, which has involved violent confrontation between the religious strata and government, and the collapse in June 1997 of the Islamist government in Turkey are cases in point. Islamic revivalism regained momentum in these countries and elsewhere—culminating in what became known as Arab Spring, which started in 2010 with popular agitation and demands for democracy and good governance in Tunisia, then Egypt, then Yemen and elsewhere in the Middle East. The Islamic component of these revolts were not evident to begin with but soon became prominent almost everywhere. Many are revising their constitutions and are likely to make the Sharia a more visible aspect of their new legal and political order. The first decade of 21st century also saw a significant re-orientation in Turkish politics, with the coming into power of Erdogan’s Justice and Development (Islamic) Party, Turkey has adjusted its secularist overtones toward a more Islamically-oriented system of rule. Iran's example of Islamic revolution evidently has not been followed in other Muslim countries. To a large extent, this revolution has remained a significant but nonetheless exceptional development.

The individualist propensities of the Islamic legal theory have already been discussed in this chapter. The question now is whether the contemporary Muslim community has inherited a legacy that is often at odds with their prevailing political reality and experience. Perhaps Islamic legal thought has traveled too far in its individualist, even antigovernment, orientation to offer easy options in an era in which the nation-state and its legal machinery have become increasingly collectivist and representative. Unless reformist measures are introduced to make independent reasoning a concern of the legislative assembly and parliament, its practice by the private jurist is no longer a realistic alternative. Regarding the principle of consensus, it basically envisioned the agreement of private jurists who are relatively uninvolved in state affairs. As such, the main issue is also one of institutionalization and the prospect of making it a part of the normal function of the state machinery, measures that have been suggested more than half a century ago but that have remained unfulfilled. The secularist orientations of the nation-state in present-day Muslim countries are not particularly conducive to the revival of consensus and independent reasoning as the principal modes of statutory legislation. It seems that ijtihad has in the past been used as an instrument more of diversity and disagreement rather than that of uniformity and consensus. Schools and scholars gained recognition through differentiation and diversity, which did little to promote consensus. There is a growing current of opinion that consensus-based solutions to issues merit greater attention by present-day Muslim thought leaders and ulama. A basic change of direction appears to have taken place, as there is now greater awareness of broader Islamic values and objectives. Furthermore, the pressure of public opinion in countries with majority Muslim populations is likely to influence government policy in making the Shariah a reality of Muslim life. The era of revolution seems to be waning, and it is increasingly giving way to selective and gradual restoration of the Shariah through the recognized channels of legal reform.

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