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Islamic Law

The Modern Period

In the modern era, traditional Islamic law and its institutions have been eclipsed by secular law and institutions at the hands of the colonial powers and modern nation-states. In most Muslim nations, the endowment properties that supported legal education have been confiscated by the government and put under the control of a government ministry. The professors and others who teach and work in these institutions have become government employees. Secular education has radically reduced the importance of the madrasa s in the contemporary world. There has been a widespread application of Western legal codes, whether the Napoleonic code or the related Swiss code, on the law of modern nation-states in the Muslim world, especially in the areas of commercial and criminal law. The only areas that have remained under the purview of Islamic law in most countries are family law, including marriage, divorce, inheritance, and related topics. In these areas, the flexibility of the law has been radically reduced by attempts to establish a standard code. In British India, for example, the Hidaya by al-Marghinani (d. 1196), Minhaj al-talibin by al-Nawawi (d. 1277), and Shara'i' al-Islam by al-Muhaqqiq al-Hilli (d. 1276) were chosen to serve as the law codes for Hanafi Sunnis, Shafi'i Sunnis, and Twelver Shiis, respectively.

At the same time, beginning in the nineteenth century, Muslim reformers such as Muhammad 'Abduh, Rashid Rida, and others attempted to reform Islamic law from within. Approaches have varied widely. Some thinkers have criticized the insularity of the individual madhhab s, arguing for a sustained study of comparative law (fiqh muqaran) within traditional institutions. Other methods include choosing freely (takhayyur) among the opinions of past authorities, or combining the legal doctrines of various madhhab s to come up with an appropriate solution, a process termed talfiq ("patching, piecing together"). These last methods have been used in many actual reforms of Islamic family law, such as the well-known reform of Anglo-Muhammadan law that drew on the Maliki tradition to alter Hanafi marriage law so as to facilitate access to divorce for women in bad marriages. Other, more radical thinkers have argued that the law of the madhhab s should be jettisoned altogether and that a new Islamic law should be derived directly from the scripture, from the Koran alone, or from that portion of the Koran that was revealed at Mecca. These radical reforms have met with little success, as most movement in the Muslim world today seems to be in the opposite direction. In Saudi Arabia, Iran under the Islamic Republic, Afghanistan under the Taliban, and Sudan, various forms of Islamic law have been applied. In addition, Islamist political groups throughout the Muslim world are clamoring for application of the shari'a in an attempt to fend off Western cultural influence, fight corruption, and engender public morality and social justice. The classical legal system has not lost its vitality, and, given the centrality of a divinely ordained law to Islam, it cannot easily be replaced or substituted.

BIBLIOGRAPHY

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D. J. Stewart

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