One more excursus: Muslim law and religion

Four schools of Islamic jurisprudence became established in the ninth century, each building on the work of a fountainhead. These were the Shafi'i, MalikT, HanafT, and Hanbali schools (Redissi 2003a, 97). While these four schools are in agreement on the foundations of the Islamic faith, they differ on the weight that needs to be accorded to the sources of Islamic law and on the practical solutions that are best in each branch of law. They all start out from the basic premise of the centrality of the Qur’an, but whereas Malik and Ibn Hanbal ascribe primary significance to the expanded tradition encompassing the teachings of the Prophet Muhammad and his companions, Shafi'i sees the Qur’an and the prophetic tradition as having equal standing, while Abu Hanifa accords primacy to ijtihdd (the effort of reasoning).

Once the jurisprudence stabilized into different schools, the founders’ ijtihdd became taqlid (imitation), meaning that the legal solutions that had become established were no longer subject to interpretation. This system remained firmly in place until the colonial period of the nineteenth century, when the Western powers established their hegemony and Islamic law opened itself to foreign influences. This development set off a vast modernization process.

Central to this process was an effort to work out the relation between reason and revelation, leading thinkers like Muhammad Abduh (1849-1905) in Egypt to state that in cases where reason and tradition should come into conflict, “we need to take account of the solution indicated by reason” (quoted in Redissi 2003a, 105; my translation).

Between the nineteenth and twentieth centuries, the modernization process opened Islamic law to foreign models, as happened in the Ottoman Empire,

1

This is a question that Abu Zayd tackles by pointing out the need for critical scrutiny in figuring out what it means to make law in a society for which justice is an ideal to be pursued in keeping with God’s law: “Those who in the Islamic world are entrusted with legislating need to do their job with a good dose of critical thinking as they go about the task of constructing a just society, and one that is turned in the same direction as the word of God” (Abu Zayd 2012, 36).

but it also spawned independent reform efforts, as happened in criminal law, where corporal punishments were softened, and in family law. As Redissi points out, in the postcolonial states these trends led to the formation of a composite law, in that Islam was proclaimed the state religion, but Islamic law is not the same thing as the sharia. “This means that the Islamic state reserves the right to enact norms that do not conform to the letter of the shari'a or to the legal tradition” (ibid., 110).

In this regard we also need to bear in mind the distinction that exists between Arab and Islamic states. This is the distinction between states that apply the shari'a and those that “in various ways apply positive law.” As Redissi concludes, “the practical outcome is a composite law in which some subject matters are regulated under classic law, while others fall under classic fiqh" (ibid., 114), or Islamic jurisprudence. It is therefore worth considering how this legal landscape has changed as a result of the transformations set in motion by the Arab Springs.

 
Source
< Prev   CONTENTS   Source   Next >