Law and Society Review Special Issue Introduction: Islamic Law, Society, and the State (original) (raw)
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2016
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Muslim Laws, Politics and Society in Modern Nation States
This book identifies Muslims‟ current socio-legal situation and their legal attitudes from different perspectives. The main aim of this study is to analyze the conflict between the assumptions of modern legal systems and plural legal realities. While there is a reconstruction of unofficial Muslim laws in the modern and officially uniform secular legal systems of England and Turkey, in the case of Pakistan, where Islamic laws are recognized to a great extent, legal reform attempts in the areas of Muslim family law by the Islamic Pakistani state have so far not been successful and have led to intense clashes. The study shows that Muslims in these countries react to the modern frameworks of legal systems and do not abandon their locally formulated and interpreted Muslim laws. State formulations and interpretations of Islamic law, as in the case of Pakistan, or its more or less total disregard, as in the cases of Britain and Turkey, lead people to reconstruct their own unofficial Muslim laws.
That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region. However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all matters of state and law, is no more enthused than anyone else in permitting God’s Law to retain any real level of supremacy over the law of the state. Yet this is amply demonstrated by the Islamist obsession with seizing state control and enacting, selectively, shari’a as state law, rather than attempting the type of complete law overhaul that would be necessary to ensure the permanent primacy of the shari’a. The selectivity, while puzzling to one in search of logic in the law, provides in fact much guidance to precisely why the Islamist has chosen this road of incoherence, demanding that the law of man lie subservient to the Will of God on the one hand, and then gleefully ignoring the necessary consequences of taking such a notion seriously on the other. The fact is that while the Islamist may say that he wishes God’s Law to be supreme over that of man, there is nothing in his actions to suggest that this rhetoric, however sincerely held, is an accurate reflection of his actual aims. The Islamist does not want God’s Law to reign supreme in areas such as corporate law and the law of business entities, where the economic consequences might be dire. On the other end lies the law of the family, where God’s Law is deemed a vital necessity, and any development, any evolution, any alteration of the rules established centuries ago when caliphs walked the earth will meet with red-faced Islamist indignation at the suggestion of such outrageous sacrilege. With the power of lawmaking safely in the hands of the state, the Islamist need only bring sharia where he wishes it, and leave all other, largely transplanted, law, where it lies, which is to say in as authoritative a position as any shari’a derived enactment by the state. The wide scale adoption of secular, transplanted law and secular legal systems and their continuation in force even in the most thoroughly Islamized societies is not a matter very thoroughly discussed by our academy, except to the extent that it is asserted as largely irrelevant to the reestablishment of a true “Islamic state” where some form of shari’a does indeed reign supreme. Thus, much scholarly attention has been focused on the “repugnancy clauses” in various Muslim state constitutions, which prohibit the enactment of laws that are repugnant to the shari’a. The focus on such clauses is striking, and portentous phrases on their importance are rife in our scholarship, among them “the Rise of the Islamic State,” “theocratic constitutionalism,” and “Islamic constitutionalism.” On repugnancy, I offer only two points. First, to the extent that an “Islamic state” can be formed under such a conception, it only seems to confirm how fundamentally limited the role of shari’a has become in the “Islamic state." Secondly, no theory of repugnancy has been coherently laid out, let alone applied, in any Muslim state. Muslim states, and Islamist movements, are far too invested in their development to call for anything less than a selective application of shari’a, with the only real difference between the Islamist, the moderate and the secularist being precisely how much to select. Logic and coherence, in the end, has been forced to give way to the hard realities of our times, which cannot afford to Divinity the primary role in the making of law.
Research Handbook on Islamic Law and Society
American Journal of Islamic Social Sciences, 2019
The premise of the adaptability, flexibility, and compatibility of Islamic normative teachings (sharīʿa) to new social contexts is already documented by many scholars, including John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shari‘a Councils and Michael G. Peletz’s Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Unlike those works, this textbook is organized by theme which provides a unique contribution to our understanding of the overall function of contemporary Islamic law. Such an approach shows that the ‘right’ answer in one country is not necessarily the ‘right’ solution in another Muslim community, which explains the diverse application of Islamic law. The book challenges Wael Hallaq’s observation that the modern codification of Islamic law resulted in the absence of hermeneutical possibilities or led to a single mode of judicial application. Perhaps Hallaq’s proposition is accurate if we examine the function of Islamic law in a spec...
European Journal of Law Reform (EJLR): Special Issue on Islamic Law
European Journal of Law Reform
The present preview is based on the final set of proofs of the EJLR Special Issue on Islamic Law. The page numbers will still change, starting with page 207, since issue 1 of 2014 had 206 pp. Otherwise, some minor spelling and formatting errors need to be corrected before we go to print. The preview contains the ToC, the editorials, the first pages with the abstracts of each article, the entire catalog of human rights in Islamic law included in Professor Mattar's article, and the entire set of book reviews. The full and final text of the Special Issue cannot be distributed here for free because of copyright ownership. However, I will post the final ToC as soon as the issue goes to print. Please contact Eleven International Publishing to purchase the issue and/or a subscription to the European Journal of Law Reform.
1. Introduction: investigating the role of sharia in national law
Sharia Incorporated
Ideological-religious currents and discourses The moderate-puritan dichotomy and beyond Major discourses about incorporation of sharia 1.6 Towards a realistic history of sharia and national law Selecting turning points and historical periods The millennium of sharia as the living law (c. 800-c. 1800) 1.7 A voyage around the Muslim world Notes Bibliography 1.1 Theme, purpose, and approach What this book is about This collaborative study intends in the first place to explore the incorporation of sharia-based 1 rules in national legal systems. It tries to answer pertinent questions about islamisation of law throughout the Muslim world: Where? When? To what extent? How? Why? The fact that since the 1970s a number of Muslim countries, notably Iran, Pakistan and Sudan, have followed this course has been a cause for concern, both in Muslim countries and in the West. It has suggested a sidelining of modernising groups, weakening of the legal positions of women and religious minorities, and a return to cruel corporal punishments. One can hardly avoid the impression that islamisation of law equals disrespect for the rule of law and human rights. Yet, the discussion about these developments is hardly based on actual facts; rather, it is filled with controversy, speculation and all sorts of prejudices. This book provides a factual and comparative overview of the role and position of sharia-based law in the national legal systems of twelve, representative Muslim countries. Each country study consists of two interrelated parts. The first part of each chapter describes the history of how the present legal systems of Muslim countries have been shaped by socio-political developments. It records major changes in governance and law, tracing in particular the role of Islam and sharia in this process. The second part presents the actual legal situation and shows to what extent national legal systems have or have not distanced themselves from the tenets of 'classical sharia' (see 1.2 below); these sections also address the compatibility of these systems with the rule of law and human rights (see 1.4 below). The country studies focus on those areas of national law, where the introduction of sharia has caused most concern, namely constitutional law, family and inheritance law, and criminal law. Purpose and perspectives This book does not only offer a wealth of data, it also employs a set of conceptual perspectives, or frames, in order to forge the data into a useful body of knowledge. Through our first frame, we look at a particular country and its national legal system, for we can only start to understand the relationship between sharia and national law by looking at countries individually. Therefore this book is in the first place a repository of country-based knowledge. In addition, this frame also serves as a tool to gain insight into the broader picture of 'the Muslim world'. The first frame is
Islamic Law in A Predominant Muslim State
This article is set out to examine the logicality and the practicability of justice dispensation through the Islamic legal injunctions in a predominant Muslim Community -whether that community is a state within a state or an entirely independent state. In doing this we start with a working definition of the Shari'ah (Islamic law); its philosophy and testing the principles contained in the philosophy with the examples of the penal code in Islam and.wrap up with an assessment of the consistence of the shari'ah in a predominant Muslim state.