The essay provides a general account of some of the main changes that Islamic law has undergone since the late 19th century: the transformation of Islamic law from a jurists’ law to a statutory law; the displacement of the ʿulamāʾ as the exclusive interpreters of Islamic law; and the secularization and nationalization of Islamic law through the judicial practice of the Constitutional Court and civil courts in Egypt.
Other issues include the impact of the West on Islamic law; the reduction of Islamic law in Turkey to the status of custom; the collapse of traditional family law and the waqf institution; the Islamization of custom in tribal societies; and the application of Islamic law in a non-Muslim state. In the conclusion, I assess the chances of reinstating Islamic law and Islamizing the statutory legal corpus based on the experience of Iran, the Sudan and Egypt.
The purpose of this essay is to provide a general account of some of the main changes in Islamic law in the Middle East since the late 19th century, with special attention to its position in the state legal system. The main issues discussed are the transformation of the sharīʿa from a jurists’ law to a statutory law and the displacement of the ʿulamāʾ as the exclusive interpreters of the sharīʿa, to the point that they have lost control of sharʿī discourse; and the secularization and nationalization of Islamic law through the judicial practice of the Supreme Constitutional Court and the civil courts applying sharʿī personal law in Egypt. Other issues discussed include the impact of the West on Islamic law, the abolition of the sharīʿa in Turkey and its reduction to the status of custom, the collapse of traditional family law and the institution of waqf, the Islamization of customary law in tribal societies, and the application of the sharīʿa in a non-Muslim state (Israel). In the conclusion, I assess the chances of reinstating the sharīʿa as a jurists’ law and Islamizing the statutory legal corpus, based on the experience of Iran, the Sudan and Egypt (since the 2011 Arabic Spring). The issues discussed reflect three different alternatives regarding the source of authority and the position of Islamic law in the state legal system: (1) secularization and nationalization of Islamic law; (2) Islamization of statutory law; and (3) reinstatement of Islamic law as a jurists’ law.
Throughout the essay, I make occasional references to Jewish law – a jurists’ law of a transcendental nature that experienced “closure of the door of law” – its integration in the Israeli legal system, its nationalization and the prospects for its reinstatement, in an effort to provide better insight into the status of the sharīʿa in modern times.
Since the late 19th century Islamic law has experienced dramatic changes, many of them no doubt caused by the impact of the West. These changes have been so profound that Wael Hallaq, one of the most prominent and influential scholars of Islamic law in our generation, concludes categorically that “traditional sharīʿa can surely be said to have gone without return.” Apparently, Hallaq rules out the possibility of restoration of Islamic law as a jurists’ law. Indeed, the legal impact of the West has been so great that Muslims call it “legal colonialism” (istiʿmār qānūnī). Of course, other, internal factors have also affected Islamic law in modern times, although the Western impact has been the strongest incentive for change. For instance, Saudi Arabia, which emerged from the Wahhābiyya, a puritan revivalist movement in the late 18th century, never experienced colonial rule; the Wahhābī movement regards the first century of Islam as a model to be imitated. Yet even the Saudi Arabian effort to adapt Islamic law to modern conditions has been influenced to a very large extent by its increasing contacts with the West.
Title: Islamic Law in the Modern World
Author: Aharon Layish
Published in: Islamic law and society 21 (2014) 276-307
Length: 31 pages