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Modern Legal Reform

Reforms affecting Islamic law in the nineteenth and twentieth centuries were more far-reaching than any undertaken previously. The impetus for reform came both from within the Islamic tradition, as specialists in Islamic law sought to reform laws in the face of changing attitudes and social needs, and from without, as political leaders imposed changes designed to eliminate archaic features that impeded governmental modernization programs. Although many reforms occurred during periods of European occupation or colonial rule, some of the earliest were undertaken under indigenous leadership, as in the Ottoman Empire and its semi-autonomous province Egypt, before the British occupation of 1882. Reforms proceeded at the levels both of theory and positive law. At the level of theory, outmoded doctrines were challenged or discarded and changes in methodologies were proposed. Reforms were made in positive law as states expanded the role of legislation to encompass areas formerly covered by juristic formulations of Islamic law. Legal reforms originating in the Middle East often radiated eastward and southward, whereas reforms originating elsewhere had relatively few repercussions in the Middle East.

The course of legal reform was linked to the problematic relationship of the Muslim world with the West. The Islamic law of nations was ill-adapted to the realities of this relationship; it was of necessity discarded. The encounter with European legal models led to extensive borrowings of both their substantive and systemic features and the reworking of Islamic doctrines. Although blends of Islamic and common law traditions emerged in some areas like the Indian subcontinent, Islamic law was for the most part assimilated into the civil law tradition of continental Europe, where laws were set forth in codified form. With the devising of Islamic codes, which offered uniform, systematic statements of Islamic law on various topics, states were able to dictate what would officially constitute Islamic law and to impose one version of it on their territories. Insofar as Islamic law survived as positive law, it was in variants circumscribed by national frontiers and in formulations that inevitably reflected the interplay of local political forces. Once the backlash against westernization made itself felt in the 1970s, states began enacting laws that selectively revived elements of Islamic law and tradition-without, however, abandoning the systemic features that had come in with westernization.

In the Ottoman Empire the process of creating new institutions began in the Tanzimat period with the Council of Judicial Ordinances in 1839, the 1847 establishment of mixed civil and criminal courts staffed by both European and Ottoman judges and utilizing elements of European procedure and evidence, and the promulgation in 1850 of a new commercial code to be applied by commercial tribunals. The latter were merged with the mixed courts in 186o; in the same era new European-style codes were enacted-a land code and a third version of a penal code in 1858, a new commercial code in 1861, and a maritime code in 1863. Commercial procedure and penal procedure codes were also enacted in this period. In 1868 a Council of State modeled after the French Conseil d’Etat and a Divan of Judicial Ordinances were created, the latter headed by Ahmet Cevdet Pasha (1822-1895), who later became minister of justice. In that capacity he instituted new courses for judges and established the secular Nizami courts. This pattern of enacting new codified laws and establishing parallel Western-style courts, including special courts for Europeans, was emulated subsequently in other countries. The expertise of scholars trained exclusively in the traditional Islamic academies of higher learning became less relevant for the actual operation of legal systems as legal education was reconstituted along European lines and the jurisdiction of religious courts was restricted or eliminated. Tensions developed between the `ulama’ and legal professionals trained along Western lines as the latter gained ascendancy in the newly-established Western-style legal institutions. The cultural gulf separating the two classes of legal specialists grew and impeded communication; only rarely did individuals combine full competence in both Western and Islamic systems. [See Tanzimat.]

The pace and extent of nineteenth-century reform varied with the subject involved. European models of public law were widely emulated at an early stage. Islamic criminal law, which was weakly developed and contained principles sharply at variance with modern norms, tended to be replaced by Western penal codes. Reforms in Islamic procedural rules, which were archaic and cumbersome, were neglected, the preference being simply for abandoning the old rules and adopting European ones. Similarly, European commercial codes were commonly adopted in lieu of reforming Islamic law affecting commerce.

The first major attempts to codify Islamic rules were undertaken in the late nineteenth century. The most influential Islamic code was the Ottoman Code of Obligations, the Mecelle (Majallah) compiled in 1869-1876. Its rules concerned contracts, property, torts, and some procedural rules; they were preceded by ninety-eight general maxims distilled from shari `ah law. The Mecelle incorporated rules taken from a variety of Hanafi jurists; regardless of whether they were idiosyncratic or minority views, these rules were selected according to what best furthered social welfare. The Mecelle stayed in force in some former Ottoman territories after the fall of the empire. [See Mecelle.]

The 1917 Ottoman Law of Family Rights embodied an innovative eclecticism, selecting rules not only from the four main Sunni schools but also from opinions of isolated jurists from minority and ancient schools of law, with the goal of making a code that was Islamic in derivation but also suited to the needs of contemporary society. Its impact was reduced by its abrogation in 1919 and the secularizing reforms adopted in Turkey in the 1920s, although it did remain in force in Jordan, Lebanon, Palestine, and Syria.

In 1923 the Treaty of Lausanne finally ended the regime of capitulations under which Ottoman Turkey had for centuries accorded subjects of Western powers exemptions from the jurisdiction of the local courts. The potential for further Islamic reforms in Republican Turkey was eliminated by the decision of its first president, Mustafa Kemal (1881-1938), later Kemal Atat irk, to adopt European codified laws across the board in 1926. A direct challenge to the popular notion that Islam had a political vocation came in Turkey with the 1924 abolition of the Ottoman caliphate, the 1928 elimination of the clause making Islam the state religion, and the 1937 declaration that Turkey was a secular state. A major controversy was generated in Egypt and elsewhere by the 1925 book, Al-Islam wa-usul al-hukm (Islam and the Principles of Government), by the al-Azhar scholar and judge, `All `Abd al-Raziq (1888-1966); this justified Turkey’s abolition of the caliphate and argued that Islam did not mandate any particular form of government-positions strongly opposed by conservatives.

With the disintegration of the Ottoman Empire and the abolition of the caliphate in the twentieth century, the nation-state emerged in practice as the only viable form of political organization. The political divisions of the state system proved difficult to reconcile with Islamic ideals of a unified ummah, and doctrinal disputes about the compatibility of the nation-state with Islamic law continued through the end of the century. Some national constitutions tried to reconcile the ideal of a supernational Islamic community with provisions affirming national sovereignty by asserting their commitment to promote Islamic unity or solidarity. The 1972 Charter of the Organization of the Islamic Conference, the international organization to which all Muslim countries belong, offered the compromise of affirming that the OIC aimed to promote Islamic solidarity among OIC members, which in turn were obligated to respect the sovereignty, independence, and territorial integrity of all other member states. By joining the United Nations system, Muslim countries in practice indicated their acceptance of a world order based on nation-states. [See Nation; Organization of the Islamic Conference.]

At the end of the twentieth century Atatfirk’s secularizing reforms remained the boldest undertaken in this area. In almost all other Muslim countries, the constitutions enacted after they achieved independence provided that Islam was the state religion-the idea of a state religion being borrowed from the West. Even Saudi Arabia, which only belatedly promulgated a basic law in 1992, adopted the concept of a state religion, providing in article 1 that the kingdom was an Arab Islamic state, enjoying full sovereignty, and that its religion was Islam. The 1973 Syrian constitution was unusual in failing to provide that Islam was the religion of the state. In practice, in all Muslim countries the majority sect of Islam enjoyed the favored status of an established religion. Constitutions commonly required that the head of state should be Muslim and that Islamic law should be either a source or the sole source of legislation. Opinions differed as to whether it was permissible to provide for popular sovereignty, or whether a constitution of a Muslim country should provide for the sovereignty of God. Constitutional rights provisions did not necessarily indicate the degree to which discriminatory features of Islamic law remained in force; constitutions might proclaim that all citizens were equal even though the rules of personal status relegated women to a subordinate status and non-Muslims encountered various forms of de jure discrimination.

Indian Subcontinent. The subcontinent was cut off from developments in the Middle East by being incorporated into the British Empire and thereby made part of the common-law world with its judge-made case law. Under British rule, the subcontinent adapted to a system of judicial precedent supplemented by statutes. The result was Anglo-Muhammadan law, in which English became the language of the law and the overall method and philosophy were of British inspiration. In this system, judges brought from Britain and British policies of justice, equity, and good conscience determined the scope and application of Islamic doctrine. The influence of Anglo-Muhammadan law extended to other Britishruled countries such as Burma, Singapore, and the Malay States. The hierarchy of courts established by the British enabled the appellate courts to exercise a unifying influence on Islamic law, and the impact was largely conservative, the British judges showing a reluctance to challenge doctrines established by great Islamic jurists. British legislative initiatives on the subcontinent included the Caste Disabilities Removal Act of 185o, abolishing the civil disabilities that Islamic law imposed for apostasy. The Muslim Personal Law (Shariat) Act of 1937 provided that the official version of Islamic law as embodied in statutes and case law should supersede conflicting custom. [See Anglo-Muhammadan Law.]

The influence of the reformist thought of Shah Wall Allah (1703-1762) of Delhi was potent. A famous disciple of his, Sayyid Ahmad Khan (1817-1898), rejected the authority of any ijma`, or juristic consensus, advocating that legal rules be freely chosen from the doctrines of the four orthodox Sunni schools. As many Muslims of the subcontinent were inclined to do subsequently, he discounted the hadiths as a source of law, expressing doubts about their reliability and claiming that all those repugnant to reason or to the dignity of prophethood should be discarded. On various controversial issues, Sayyid Ahmad Khan took positions that tended to harmonize Islamic rules with contemporary norms, arguing for example that Islam condemned slavery, that jihad was meant to be defensive in nature, and that simple interest charges were allowable. [See the biographies of Wali Allah and Ahmad Khdn.]

Another influential reformist thinker was Muhammad Iqbal (1875-1938), who downgraded the significance of the juristic treatises and maintained that contemporary Muslims must be free to undertake ijtihad, independent reasoning from the sources. Iqbal maintained that the Qur’an had to be understood in the light of contemporary needs and that the hadiths should be used with caution. In a significant break with traditional conceptions of ijma`, Iqbal maintained that ijma`, could be exercised by the legislative assemblies of Muslim states. [See the biography of Iqbal

After the independence of India and Pakistan, case law and statutes reformed personal status law. In the Pakistani decision Balqis Fatima v. Najm-ul-Ikram Qureshi (1959 PLD Lah 566) the wife was given an absolute right to divorce in return for making an appropriate payment to the husband, a ruling that involved reinterpreting the traditional institution of khul` and borrowing the Maliki rule that a judge might dissolve a marriage on the grounds of discord, or shiqaq, between the spouses. In Pakistan the Family Laws Ordinance of 1961 undertook reforms to curb polygamy by requiring that the husband first obtain permission from his wife and an arbitration council before taking a second wife, and that to obtain a divorce the husband should notify his wife and an arbitration council, which was to try to effect a reconciliation. The wife’s right to a divorce was ensured by requiring that all marriages use a standard marriage contract, which delegated to the wife the husband’s right to divorce. The Indian case Itwari v. Asghari (1960 AIR All 684) ruled that in the conditions of contemporary India, a husband’s taking a second wife constituted such an insult to the first that, barring unusual circumstances, it would be inequitable to oblige the first wife to continue to live with the polygamous husband.

Algeria. France made Algeria its colony in 1830, and the powerful French influence on Algerian law warrants separately classifying le droit musulman algirien, which was shaped by French legal categories and concepts of equity and natural law. The establishment of a Frenchstyle hierarchy of courts exerted a unifying control on judicial decisions within Algeria. Over the course of French colonization Islamic law on most subjects fell into desuetude, the area of personal status being an exception. Whether Islamic law should be codified along

French lines was debated, and in 1916 the draft code known as the Code Morand presented a modernized version of Islamic principles selected on the basis of what would advance equity, morality, and economic interests, and conform to the state of social development. This draft code, which covered matters such as personal status, real property, and evidence, exerted considerable influence on Algerian jurisprudence even though it was never enacted into law.

Egypt. Among Arab countries, Egypt was the fulcrum of Islamic reform from the late nineteenth century onward. It was also one of the countries where Muslims were first exposed to French law and French legal education, Egyptian students having been sent to study law in France as early as 1828. Egyptians assumed a leading role in efforts to synthesize the French and Islamic traditions.

The most powerful single influence on liberal reformist thought in Islam was the work of the Egyptian `alim Muhammad `Abduh (1849-1905), who was educated at al-Azhar and was associated with the Egyptian nationalist cause. His international eminence as an Islamic reformer was enhanced by the stature he attained on becoming grand mufti of Egypt in 1899, in which capacity he rendered many fatwds. `Abduh’s liberal ideas and his commentary on the Qur’an, Tafsir al-mandr, were disseminated by his disciple Muhammad Rashid Rida (1865-1935) Ibn Taymiyah (1263-1328) was one of his intellectual precursors, particularly insofar as `Abduh held that only the Islamic rules related to matters of worship were inflexible, whereas rules covering the everyday lives of Muslims could be adjusted as circumstances warranted in accordance with the criterion of social welfare. There were also precedents for his ideas in the work of Muhammad ibn `Abd al-Wahhab (17031787), who advocated stripping Islam of its later accretions and restoring it to its original purity, an approach that justified disregarding solutions offered by medieval jurists and returning to the Qur’an and sunnah to make fresh interpretations. `Abduh also resorted to takhayyur, being prepared to devise legal solutions to problems based on a comparative evaluation and selection of rules taken from the doctrines of various schools of law. In his rationalism `Abduh also owed an intellectual debt to the long-suppressed Mu’tazilah. In practice he favored interpretative techniques that would produce rules that promoted the welfare of society. An example of his approach could be seen in his critique of polygamy, which rested on reading the Qur’anic verses 4.3 and 4.129 together. The permission of polygamy in surah 4.3 was accompanied by an injunction to those who feared being inequitable to marry only one woman, traditionally understood as being addressed to men’s consciences. `Abduh treated this as a legal precondition for a valid second marriage, and-given the remark in 4.129, “You will not be able to treat your wives equitably”-he concluded that polygamy should be ruled out except in the case of the exceptional man who was able to treat his wives equitably. `Abduh took into account his own observations that in practice husbands had proved unable to treat their wives justly. Although `Abduh’s influence on reformist thought was far-reaching, his actual impact on the reform of Egyptian law was limited, for by his day the process of adopting French law was already far advanced in Egypt, and the jurisdiction of shari`ah courts had been reduced. [See the biographies of the figures mentioned above.]

Muhammad Qadri (1821-1888) became an expert in the comparative study of Islamic and French law, and during his tenure as minister of justice (1879-1892) he oversaw the promulgation of a number of new codes. He also produced highly regarded codified versions of Hanafi law. `Abd al-Razzaq al-Sanhuri (1895-1971), a scholar who combined expertise in both Western and Islamic law, was one of the most influential figures in modern Arab legal history. Possessing a doctorate in law and political science from Lyon and a doctorate from the Institut des Hautes Etudes Internationales, he later became dean of the faculty of law at Cairo University and president of the Egyptian Conseil d’Etat. He wrote on a variety of legal topics, including the caliphate; he published a treatise on the latter in French in 1926, providing a program for reestablishing it and at the same time converting it into a modern organization along lines of the contemporary League of Nations. He published studies in 1936 and 1938 on the codification of civil law and proposed that the successful revival of the Islamic legal heritage would require that it be restudied in the light of principles of modern comparative law. Civil codes devised by Sanhuri were adopted by Egypt in 1949 and subsequently by most Arab countries. They synthesized Islamic doctrines within a matrix of codified laws inspired by a variety of models, including European law and existing Arab and Turkish codes, and actual court jurisprudence. They permitted reference to Islamic law and custom in default of applicable code provisions. With the adoption of this code, Egypt was able to enact a law abandoning its separate system of mixed courts, which beginning in 1874 had assumed jurisdiction over civil and commercial cases between Egyptians and foreigners, between foreigners of different nationalities, or where a foreign interest was involved. [See the biography of Sanhuri. ]

Egypt’s national courts, organized in 1884, functioned alongside the mixed courts. Personal-status matters remained relegated to shari `ah courts. The government undertook the regulation of the organization of the shari’ah courts and the qualifications of their judges, setting up a new school for their training in 1907. Meanwhile, various millah courts survived, serving the different non-Muslim religious communities as the forums for resolving their personal-status disputes; these were outside state regulation. Only in 1955 did Egypt unify its court system, placing all cases under the jurisdiction of the national courts. However, in personal-status cases, the applicable law remained indicated by the parties’ religious affiliations.

Personal-Status Reforms. In the twentieth century reform efforts focused on personal-status matters, which remained governed by Islamic law. Most governments enacted codified versions of Islamic family law, some of which dramatically deviated from the doctrines of the established schools of law. To minimize objections from conservatives, reforms were often taken indirectly via procedural expedients. For example, new laws commonly imposed requirements that in order to be legally valid marriages had to be registered, and that the spouses had to be of certain minimum ages, thereby deterring child marriages and forced marriages. To discourage polygamy and the husband’s use of discretionary divorce, governments required that marriages and divorces comply with certain bureaucratic formalities and conditions.

The most radical reforms of Islamic family law were taken by Tunisia in 1956, which abolished polygamy and gave men and women equal rights in divorce. This law, in theory based on Islamic principles, was applicable to all citizens of Tunisia. In 1958 adoption was legalized. In recognition of the financial hardships often faced by divorced women under Islamic law, an amendment was enacted in 1981 providing that a divorced wife could be given either a payment or an allowance to maintain her in the same standard she had enjoyed when married.

The Iranian Family Protection Act of 1967 was almost as far-reaching as its Tunisian counterpart. It placed strict conditions on polygamy, requiring that a husband persuade a court that he was able financially and otherwise to treat more than one wife justly. The husband and the wife were accorded the same ability to obtain a divorce from a court, which first had to seek to reconcile the two. Part of the law’s text was deemed to be inserted in all marriage contracts, with the result that the husband’s right of divorce would be in all cases delegated to the wife. Courts were also assigned a central role in deciding matters of child custody and post-divorce maintenance. The Islamic Revolution of 1979 heralded a reversal in the previous policy of enhancing women’s rights; it was followed by laws imposing disabilities on women in the name of adhering to Islamic principles.

In Egypt, a reforming personal-status law was promulgated by decree by President Anwar Sadat in 1979. Among other things, it eliminated a husband’s right to compel his disobedient wife to return to the marital home, required that a husband would have to register a talaq divorce and inform the wife he was divorcing her, provided that a husband’s taking of a second wife constituted grounds for divorce as of right by the first wife, and enhanced the wife’s rights in matters of maintenance, child custody, and post-divorce division of property. Even such modest reforms provoked a strong counterreaction on the part of conservatives, and in 1985 Egypt’s High Constitutional Court ruled that the manner of its promulgation had been unconstitutional, to the great disappointment of Egypt’s growing feminist movement. After the nullification of the 1979 law, in an attempt to placate both sides, a compromise law that diluted the 1979 reforms was enacted by the People’s Assembly.

The conservative shift in legal trends was evinced by Algeria’s decision in 1984, after long debates, to enact a family law that resurrected most institutions of Maliki law, except for forced marriage. The law relegated women to the status of wards of male marriage guardians, accorded the husband the right to divorce at will while requiring the wife to establish grounds, and reaffirmed the husband’s right to have up to four wives.

The aspect of Islamic personal status least susceptible to reform was inheritance law, where one saw only occasional modest reforms-such as measures designed to augment the portion going to the widow and to enable orphaned grandchildren to inherit. The boldest reform measure attempted by an Arab government came in Iraq, the population of which was divided between the Sunni and Sh!’! sects, where a 1959 law adopted German inheritance taw. A 1963 law canceled this change, adopting an original reform scheme, whereby elements of the dissimilar Sunni and Shi’i inheritance rules were combined. The order of priorities by class established under Shi i law was to be followed in all cases, but the schemes for distributing shares within a class could follow either Sunni or Shi’i 11 law. [See Family Law; Marriage and Divorce; Polygyny.]

Developments in Asia. In Indonesia, the Malay States, the Philippines, the Straits Settlements, and Singapore, local customary or adat law was a powerful force. Muslims disputed whether Islam should be understood in terms of the local culture or whether Middle Eastern versions of Islamic law should be treated as authoritative; similar disputes arose in Bangladesh after it separated from Pakistan. Singapore’s Administration of Muslim Law Act of 1966 allowed Malay custom to modify the application of Islamic law. In the colonial era Britain had tended to respect Malay adat law. After independence in 1957, the States of Peninsular Malaysia moved in the direction of Islamic legalism via legislation and setting up religious courts and agencies. Councils were established that could issue fatwas, following Shafi’i doctrine except where it was not in the public interest, in which case they could choose rules from other schools. However, the (secular) High Court remained the ultimate authority in legal disputes. Islamization measures carried out in the 1980s included placing Islamic judges and courts on a par with the civil judiciary, promoting the ideas of Islamic economics, and reinforcing the Malaysian version of Islamic morality with penal sanctions.

Despite the existence of a large Muslim minority, in the Philippines Islamic law had tended to be only erratically applied. In 1977 a Code of Muslim Personal Laws was enacted, which restated general principles of Shafi’i law and set up new shari’ah courts to apply it. The code allowed liberal grounds of divorce for the wife, but it retained the Islamic rule that adoption could not confer legitimacy, a rule which went against the local adat law.

Notwithstanding their official allegiance to the Shafi’i school, Indonesian Muslims tended to follow adat law and to be unfamiliar with fiqh. In Indonesia under Dutch rule, Islamic law was subordinated to adat law and the religious courts accorded an inferior position. The Regulation on Mixed Marriages of 1898 abandoned a fundamental rule of Islamic law by allowing Muslim women to marry non-Muslim men. Generally, however, the Dutch showed little interest in changing Islamic substantive law, being more concerned with regulating the courts and the procedural or bureaucratic aspects of the legal system. After Indonesia achieved independence in 1949, rulings by religious courts generally depended on secular courts for their execution and enforcement; secular courts could review the rulings on procedural, evidentiary, and policy grounds. Subsequent legislation indicated that religious courts had jurisdiction over personal status cases only to the extent that local customary law indicated that they were to be resolved according to the shari `ah. In their approach to cases, Indonesian courts tended more to focus on the practicalities of dispute resolution rather than strictly following Shafi’i doctrine. When liberal reforms of Islamic personal-status law were proposed in the early 1970s, they were strongly opposed by conservatives. The family law enactment eventually passed as the Marriage Law of 1974 was stripped of the bolder reforms that had earlier been proposed; these had included the legalization of adoption, allowing free intermarriage between faiths, and requiring that a husband obtain permission from a secular court to marry more than one wife or to obtain a divorce. Because of the gap between Indonesian and Middle Eastern culture, there was advocacy of establishing a separate Indonesian national madhhab (legal school). [See Adat.]

Islamization Programs. Beginning in the 1970s and continuing into the 1980s initiatives were launched to reinstate Islamic law in Libya, Iran, Pakistan, and the Sudan, and revivalist groups who had long called for the repeal of Western laws in other countries demanded similar islamization measures. These programs resulted in selective retrieval of elements of shari `ah law that were then integrated in legal systems that remained profoundly influenced by the previous westernizing reforms.

The most important islamization program was undertaken in Iran. There the victory of clerical forces in the 1979 Islamic revolution heralded a halt to the process of liberal reform, and the inauguration of policies of entrenching clerical power over political and legal matters, resulting the dismantling of Iran’s westernized judiciary and legal profession. According to article 4 of the constitution, all laws were based on Islamic principles, which were to prevail over not only the laws but even over the constitution. Laws were to be enacted by elected members of the parliament, and their conformity with Islam was to be ensured by having them vetted by six clerical members of the Council of Guardians. Important proposed legislation was blocked by rulings that violations of Islamic principles were involved. In 1989 several constitutional amendments were adopted, including one providing for a new council to try to mediate conflicts between the parliament and the Council of Guardians regarding the compatibility of legislation with Islamic criteria. The rights and freedoms of women and minorities were reduced by new policies and legislation, and Islamic criminal laws were enacted and enforced with zeal. With the adoption of the 1979 constitution, Iran became the first contemporary Muslim country where the structure of government itself was altered to conform to a theory that the state should be headed by an Islamic jurist, following the ideas of Ayatollah Ruhollah Khomeini about vilayat-i faghh (Ar., wildyat al faqih), or government by the jurist. Article 167 of the Iranian Constitution called for courts to make decisions based on codified laws, only in default of which were they to consult Islamic sources or fatwas. [See Wilayat alFaqih. ]

Pakistan struggled since its founding to resolve the role that Islam should play in its government and constitution. In the 1973 constitution, Article 227 provided that all laws should be brought into conformity with the Qur’an and sunnah and that no law should be enacted that was repugnant to their “injunctions.” The Islamic Ideology Council played a major role in the islamization campaign that commenced in 1979 and led to the replacement of many existing laws by rules taken from Sunni fiqh. The most striking changes came with the revival of Islamic criminal law, the enactment of a law converting the zakdt (charitable tithe) into a tax payable to the state, laws designed to eliminate interest from many bank deposits and investments, and the replacement of judges with secular training by persons with Islamic legal education. In 1991 an Enforcement of Shari’ah Act was announced that aimed to make Islamic law the supreme law in the country, overriding both previous laws and the constitution. Because of the turbulence that characterized the political scene in the wake of the death of President Zia ul-Haq (d. 1988), it was unclear to what extent the islamization campaign would be pursued.

In Sudan there was a brief experiment in 1983-1985 with an idiosyncratic islamization campaign conducted by the military dictatorship, a campaign in which the implementation of hudud penalties figured prominently. After a brief interlude of democracy, islamization was pursued in a more sustained and systematic way under a new military dictatorship, which seized power in 1989 and was allied with a Sudanese faction of the Ikhwan or National Islamic Front. Distracting the government from its goal of making Sudan into a model Islamic state was the conflict resulting from determined resistance of African Sudanese in the south, mostly animists or Christians, who opposed both islamization and the arabization policy that accompanied it. The civil war that had broken out over islamization in 1983 continued unabated into the 1990s.

In Egypt in the 1970s and 1980s proposals for measures to islamize laws were put forward that would have, among other things, reinstated Islamic criminal law, banned interest charges, and imposed a strict version of Islamic morality according to which women were to be segregated from men in public transport and university education and excluded from certain professions. Egypt’s Coptic community objected to some of the Islamization proposals-such as the one that would have made apostasy from Islam a capital offense-and confessional tensions rose in consequence. Although most proposals came to nothing, a law prohibiting alcohol was passed and came into force in 1976-but with exceptions that vitiated its impact. Meanwhile, drafts of various new codified versions of Islamic law were prepared under governmental auspices, but after their presentation to the People’s Assembly in 1982, none of the draft codes were ultimately enacted into law. As a concession to the sentiment favoring Islamization, the second article in Egypt’s constitution was altered in 198o to make the shari `ah “the principal source” of legislation, rather than “a principal source” as it had been in the previous wording. An attempt in 1985 to obtain a ruling from the High Constitutional Court that a civil code provision calling for interest to be charged when a loan repayment was delayed should be voided as being contrary to the reworded article 2 was rejected, the court ruling that the article had no retroactive effect on existing legislation that was in conflict with the shari `ah. In Egypt the calls for making the state and its laws more Islamic were countered by proponents of the idea that the unity of religion and state under modern conditions was deleterious to both, among them Muhammad Said al`Ashmawi and Faraj Fawdah (d. 1992).

Powerful fundamentalist movements, appealing to popular sentiment and favoring the application of the shari’ah and the reinstatement of Islamic law, were vigorously repressed in many countries, where governments with basically secular outlooks saw in them a threat to their hold on power. In Algeria in 1991 a fundamentalist party almost came to power by democratic processes, but it was forestalled from actually taking over the government by military intervention in early 1992.

Recent Trends. Especially from the 1960s onward, the implications of the Islamic sources were developed in areas where Islamic law had not previously been elaborated or where earlier doctrines were deemed inadequate, such as matters of public law. As Muslims produced theories that eluded traditional categories, the barriers formerly dividing the doctrines of schools of law and Shi’is and Sunnis became more permeable. A new literature was produced by Muslims with a variety of educational backgrounds and outlooks, many of whom were oriented more toward ideology than jurisprudence. A major concern was rethinking the application of Islamic precepts to public-law issues such as government, penal law, and macroeconomic principles. In the area of macroeconomics, the traditional prohibition of riba (interest or usury) was reinterpreted as a principle that required the elimination of interest charges. Among those writing on this subject were Sayyid Abu al-A`la Mawdudi (1903-1979) a Pakistani fundamentalist ideologue, and Muhammad Baqir al-Sadr (1931198o), an Iraqi Shl’! cleric. However, whereas proponents of Islamic economics concurred that Islamic banks needed to be established in which interest would be prohibited, they disagreed sharply on other economic issues, such as whether Islam allowed for a free market or required the adoption of socialist policies, as evinced by the controversies in Iran after the Islamic revolution over issues like land reform and state control of trade. Proponents of islamization advocated establishing “Islamic” states, that is, states constituted according to Islamic criteria, although there was no consensus as to what this model entailed. One of the influential writers on the role of Islam in the state was the Sudanese Hasan al-Turabi, a Western-educated law professor who went on to a career as an ideologue of Islamic revival and a leading force in Sudanese politics. In these circumstances, theoretical debates went on about the degree to which Islam was compatible with the post-World War II system of international law and the degree to which an Islamic system could incorporate democratic principles. [See Banks and Banking; Interest; and the biographies of the figures mentioned above.]

Meanwhile, international organizations like the Organization of the Islamic Conference sponsored initiatives that had the potential to encourage greater uniformity in approaches to Islamic law. For example, the OIC issued a statement of Islamic human rights principles in 1990. [See Human Rights.] Controversies were engendered about women’s rights in Islam, in which fundamentalists and other supporters of shari`ah rules as they had stood in the past were pitted against increasingly outspoken Muslim feminists. Muslims’ growing familiarity with feminist ideas and international human rights principles meant that laws affecting women, including those of Islamic provenance, were increasingly evaluated in terms of their conformity with the modern norm of male-female equality. Fatima Mernissi, a Moroccan, became one of the most vigorous advocates of the proposition that male attitudes rather than authentic Islamic teachings stood in the way of women’s equality. [See Feminism; and the biography of Mernissi.]

Mohammed Arkoun, an Algerian Islamologist teaching in France, produced provocative and original analyses of the state of Islamic thought and proposals for updating methodologies and enhancing interdisciplinary and comparative dimensions of the study of Islam. Although not specifically directed to the problems of legal reform, the implications of Arkoun’s work for the science of interpretation of the Islamic sources are potentially great. [See the biography of Arkoun. ]

Kuran, Timur. “The Economic Impact of Islamic Fundamentalism.” In Fundamentalisms and the State: Remaking Polities, Economies, and Militance, edited by Martin E. Marty and R. Scott Appleby, pp. 302-341. Chicago, 1993. Examination of Islamic economics and review of recent experiments in applying its tenets.

Lewis, Bernard. The Emergence of Modern Turkey. 2d ed. London and New York, 1968. Fine history of the late Ottoman period and the early republic, exploring reformist influences and trends.

Mayer, Ann Elizabeth. “The Fundamentalist Impact on Law, Politics, and Constitutions in Iran, Pakistan, and the Sudan.” In Fundamentalisms and the State: Remaking Polities, Economies, and Militance, edited by Martin E. Marty and R. Scott Appleby, pp. 110-151. Chicago, 1993. Assessment of the legal changes wrought by fundamentalist programs in three countries.

Peters, Rudolph. Islam and Colonialism: The Doctrine of Jihad in Modern History. The Hague, 1979. Thoughtful examination of how the doctrine of jihad has evolved.

Sanhuri, `Abd al-Razzaq al-. Le califat, son evolution vers une societe des nations orientale. Paris, 1926. Treatise by an eminent Arab jurist on how the principles of the caliphate can apply in contemporary political circumstances.

Ziadeh, Farhat. Lawyers, the Rule of Law, and Liberalism in Modern Egypt. Stanford, Calif., 1968. Excellent historical survey of the development of modern legal institutions and the legal profession in Egypt.

ANN ELIZABETH MAYER

BIBLIOGRAPHY

Adams, Charles C. Islam and Modernism in Egypt: A Study of the Modern Reform Movement Inaugurated by Muhammad `Abduh. London, 1933. Excellent study of `Abduh’s life and impact on Islamic reform.

Ahmad, Aziz. Islamic Modernism in India and Pakistan, 1857-1964. London, 1967. Valuable general study.

Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Concise overview of contemporary legislative reforms.

Arkoun, Mohammed. Pour une critique de la raison islamique. Paris, 1984. Collection of essays offering original and critical perspectives on the Islamic heritage, by a distinguished Muslim intellectual. Borrmans, Maurice. Statut personnel et famille au Maghreb de 1940 d nos jours. Paris, 1977. Outstanding in-depth study of law reform affecting personal status in North Africa.

Enayat, Hamid. Modern Islamic Political Thought. Austin, 1982. Survey of trends in Sunni and Shl’! thought.

Esposito, John L. Women and Muslim Family Law. Syracuse, N.Y., 1982.

Ghunaymi, Muhammad Tal`at al-. The Muslim Conception of International Law and the Western Approach. The Hague, 1969. Useful survey comparing Islamic and Western approaches to international law. Hooker, M. B. Islamic Law in South-East Asia. Singapore, 1984. Surveys of recent developments involving Islamic law in the region. Kerr, Malcolm H. Islamic Reform: The Political and Legal Theories of Muhammad `Abduh and Rashid Rida. Berkeley, 1966. Scholarly examination of the ideas of two central figures in Islamic reformist thought.

Azhar Niaz Article's Source: http://islamicus.org/modern-legal-reform/
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  • writerPosted On: July 28, 2014
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