Islamic law, namely shari’a, has been misconstrued by outside groups for centuries. Features that initially informed the law such as the Qur’an, hadith, fatwa, madhabs, the madrasa, waqf, and primary legal personnel, like the mufti and qadi, are not as common across Muslim legal institutions as they once were as a result. Figures in the original Islamic court had initially been responsible for the emergence of shari’a law in the Muslim world as an academic, legal and social institution. However, the pervasiveness of the law as a multidisciplinary institution, upon the establishment of the nation-state, cannot be described as a conventional shari’a legal system with mufti and qadi legal figures, among others. Under nation-state development, “re-Islamization trends” occur, as Wael B. Hallaq suggests in An Introduction to Islamic Law. After 1970, post-Muslim nation-states were subject to re-Islamization (Hallaq 140, 2011)-- an incursion created on the basis of a misunderstanding of shari’a law by the state. The emergence of the state’s presence in the shari’a legal structure impeded the legal, social, and academic superstructure of shari’a law. This article will explore cases of the re-Islamization trends from the 1970s onwards in the nation-state contexts of Egypt, Pakistan, Iran, and Indonesia. It will argue that shari’a law as conventionally understood in pre-modern Islamic societies informed by the key actors mentioned– is undermined by the nation-state in these post-1970 contexts.
Upon analyzing the operations of shari’a law, it is crucial to understand the social and political environments in which shari’a is rooted. Hallaq emphasizes the lack of an established sovereign state amidst the emergence of Islamic law, and specifically how this had implications for Muslim legal personnel. Pre-modern Islamic societies were comprised of minimal all-encompassing governance over societies. Hallaq highlights that bureaucracy and state administration were few and far between. When found, bureaucratic and administrative centers were primarily confined to urban areas. Thus, there was no tangible way to associate people and groups with regions in pre-modern Islamic society. Moreover, paperwork signifying citizenship did not exist, rendering nationality or “geographical fixity” of state borders murky (Hallaq 7-8, 2011). As a result, pre-modern Islamic societies resorted to “self-rule,” so governing factors that informed pre-modern Islamic law were not subject to the authority of the state, and self-rule was implemented (Hallaq 7-8, 2011). In understanding the structure of pre-modern Islamic societies and the law, shari’a cannot be understood as a product of the state; however, upon the establishment of the state, an abundance of intervention occurred, making the essence of shari’a law different from what it once was before modernization.
In terms of the key legal personnel that informed pre-modern Islamic law and were not subject to state authority, the mufti was a legal specialist tasked with making a non-binding, but heavily-relied-upon settlement for a dispute, or fatwa, in his community (Hallaq 9, 2011). To conclude a fatwa, the most sacred source and text of the law was utilized to inform this: the Qur’an (Hallaq 15, 2011). An additional major source behind the Qur’an is the hadith, which is everything the Prophet Muhammad has ever said or done (Hallaq 16, 2011). It is important to note that hadith has adopted narratives over time since the Prophet’s death in the seventh century. Moreover, one can only imagine how much hadith has changed regarding rhetoric since its inception. A primary element of Islamic law is the emphasis on rationality and its influence on life in shari’a society. Hallaq indicates that rationality is determined by God, which is advised by both the Qur’an and the Prophet. Ultimately, notions of reason and revelation derived from the Qur’an and the Prophet work to reinforce Islamic law and feed to its rationality (Hallaq 15, 2011).
Further, the qadi, or Muslim judge, mediated disputes– often involving disputes outside of the courtroom. For instance, the qadi may have been seen settling a dispute between a husband and wife in their home (Hallaq 11, 2011). An essential part of the qadi’s role is to be a community member and overseer. In terms of how the legal personnel became versed in the law or became a part of the ulama, was due to a heavy emphasis on academia and scholarship, specifically among legal personnel. Morality and the embrace of knowledge through scholarship were important values and aspects of early Islamic law. Under madhabs, or legal schools where ideas and opinions could be collectively adopted, those studying to be a part of the Islamic legal personnel studied in study circles, or madrasas when the law became more established in academia during the tenth century to earn their titles (Hallaq 31-32, 2011). These madrasas were educational, financial, and political institutions that allowed for hierarchy among professors and students, but also allowed for waqf endowments, which dedicated spaces for Islamic law to be studied, specifically within mosques (Hallaq 38, 2011). This conveys the importance of academia that has reinforced early Islamic law as education institutions manifested into financial institutions to become an academic and financial superstructure–fused into both.
Consequently, shari’a law, in several cases, when applied in the contemporary, does not resemble shari’a in a pre-modern context. In part, this is due to how shari’a has been misconstrued, misrepresented, and therefore undermined by governance structures upon being placed in the hands of the western, hegemonic nation-state. This is enshrined in Egypt, Pakistan, Iran, and Indonesia. Consistent misrepresentation has created discourse on shari’a law persisting into the 21st century. One example of a case in which shari’a law is prevalent is in the present day (21st century) nation-state of Zamfara, northern Nigeria, as conveyed in the documentary, Inside a Shari’ah Court. The synopsis of the film is comprised of the following: a narrator that is a Muslim woman from Britain, where shari’a law is not practiced. In the film, she travels to Zamfara to investigate, in an ethnographic vein, the operations of shari’a law and better understand the questions many bring into the overarching discourse: the inclusion of shari’a law in British juristic practice. The documentary conveys similarities between the juristic practices embraced in Gusau and those during pre-modern Islamic society, specifically the community fashioned orientation of legal personnel and community members, the role of the judge, and the importance of knowledge to inform the law. Upon her arrival to the village of Gusau, Zamfara, the narrator approaches Judge Isah, the Muslim judge of the community, with her questions about the operations of shari’a law in this community, many of which are combative.
The narrator of the documentary provides a thick description through what I have denoted as an anthropological and ethnographic process. Here, she qualitatively observes and inquires about the juristic practices of shari’a law in Gusau. However, a key question that emerges from the work done in this film is the symbiotic relationship between power and knowledge; is it fair for the knowledge and experiences shared in this documentary by the residents of Gusau to be thickly described and expertly accounted for by BBC? Ultimately, the film reveals shari’a as backward, oppressive, and uncivilized. This conveys shari’a as a very misrepresented practice, not only by non-Muslims but outside groups that do not practice shari’a law (BBC, 2007). Ultimately, a contemporary film like this enshrines how systems of coloniality has further unfolded through more nation-state agendas like western research and documentary as these structures reinforce a claim of expertise, knowledge, and control by westerners.
Furthermore, though shari’a law is present in modern-day Nigeria, there are many Muslim states in which the circumstances are not the same. The modernization of the law in conjunction with state intervention has made it so that the legal system appears vastly different than it did before the end of the first World War. The hands of the Nationalist elites took over Muslim societies through implementing modern technology, cultural institutions, among western nuances that align with the emergence of global capitalism (Hallaq 135, 2011). Even before this, Hallaq suggests that the earliest forms of pre-modern governance perpetrated by the Ottoman Empire during the sixteenth and seventeenth-century set the stage for the modern transformations that occur from the 19th century onwards. In part, this is due to the sovereign’s implications for shari’a law. The Circle of Justice established by the sovereign saw the military as inextricably linked with sovereignty and became laced into shari’a law. Additionally, the transformation of the qadi under the Ottomans was made to be appointed and dismissed by the sovereign (Hallaq 72-73, 2011). The Ottomans were also responsible for constructing the largest Muslim empire by the end of the sixteenth century, responsible for both Egypt and Iran.
Persisting into a further period of modernization, the colonization of the law has also enabled the modernization of shari’a law that occurs during the latter half of the 20th century. The Ottomans could not keep up with the rapid modernization of their European counterparts, so they were less successful by the 17th century. One example of European colonization of Islamic law is Dutch Colonial rule in Indonesia and the establishment of adat to apply “normative” law practices in the legal system with the intent to “unify the law,” which is eventually embraced by the state of Indonesia in the late 20th century (Hallaq 90, 2011). I will soon convey the Indonesian state’s application of colonized Islamic law in the late 20th century and how it does not result in a unified legal system.
But, the codification of the law under nationalist regimes during the early 20th century established an ultimate shift towards modernization that differs from the governance happening in pre-modern Islamic societies: the shift from a more collective approach to the law, to one that strives towards individualism and treats families as individual “units” existing “on their own,” under the law, aligning with the capitalist system that was rapidly emerging (Hallaq 135, 2011). This modernization of legal structures is further enshrined in the post-1970s “re-Islamization trends” that Hallaq describes, which are primarily state doings that worked to mold Islamic societies in Egypt, Pakistan, Iran, and Indonesia. In essence, the laws applied in these contexts cannot be described as shari’a law as it once was recognized in a pre-modern, stateless society.
Hallaq identifies Egypt as one of the longest experiments in legal modernization and ideological secularization. Specifically, two groups from the mid-nineteenth century onwards were established in Egypt, one being the Azharis. The Azharis strongly identified with the ulama and conventional visions of shari’a law. Another religious group that was even more prevalent in Egypt during this time was the “Muslim Brothers,” or better denoted, Islamists, which spread beyond the confines of Egypt to other countries in the Middle East, South Asia, and Southeast Asia (Hallaq 143-144, 2011).
These similarities between pre-modern shari’a legal societies and those of the Islamist majority with an Azhari minority in Egypt, pressured the government to consider using shari’a as their legal system. Largely, this required compliance to nationalism from the Azharis, which was implemented. It also included suppression of Islamist political formations under the Nasser regime at the time. In turn, the subordination of both groups on behalf of Nasser’s regime made it so that the implementation of shari’a in the first place could be disregarded by the state. In 1971, the SCC (Supreme Constitutional Court) was established to “curb infringements” by the legislative and executive branches. However, the impacts of the SCC were ambiguous, lacking a definition of what shari’a law was until 1993. Even so, the SCC took a rather ignorant and audacious stance in its definition of shari’a law, ignoring hadith and suggesting that any judge versed in national courts could interpret shari’a. Though the state of Egypt during the late 20th century had agreed to implement shari’a law, this is merely their misinterpretation of what had been established in pre-modern Islamic society: the sacred and fundamental superstructure of shari’a. So, key ideas that initially informed shari’a law have been ignored. For instance, the SCC did not regard hadith or the value of the ulama because they suggested that any judge educated about the national court was qualified to adjudicate in a shari’a context. This suggests fewer exclusive qualifications for legal personnel, namely Muslim judges, that are defined in pre-modern shari’a societies (Hallaq 145-147, 2011).
Comparatively, in post-1970 Pakistan, state intervention to implement shari’a juristic practices was nationalized and misunderstood. Pre-modern shari’a practices were not implemented to their fullest extent. An example of this is under the Objectives Resolution of 1949, which initially was included as a Preamble to the Constitution in Pakistan. This resolution intended to expunge all laws contradicting the traditional laws of shari’a. In turn, it was intended that each High Court would have a “Shariat Bench,” but this was codified into a single FSC (Federal Shariat Court) in 1980. Hallaq accentuates the impediments faced by the FSC in court: The Supreme Court could deny the FSC’s decisions and the FSC could not adjudicate the Constitution, fiscal, procedural, or personal status laws. Additionally, the five judges in the FSC were from national courts rather than the ulama class, so they were not versed in the same juristic practices that synthesize knowledge and scholarship with the law. This is similar to the nationalization of judges in the Islamic courts perpetuated by the SCC in Egypt around the same period. The case of Egypt also worked to devalue the importance of knowledge about shari’a across the ulama. In this way, it is made clear that traditional shari’a law was subordinated by the state of Pakistan (Hallaq 150-151, 2011).
During this time frame, Iran was experiencing the prodigious Iranian revolution of 1979. As a result, this had vast implications for the structure of Islamic law. Ayatullah Khomeni, leader and theorist of the Iranian revolution and Pahlavi state of Iran, emphasized that the “Marja-Taqlid, or Jurist-in-Charge,” must fulfill the role of the Imam, or leader of the prayer if the Imam is not present. Formally, this was embedded in the 1979 Constitution of the new Republic, where Article 5 indicates such specifically. Khomeni also emphasizes the notion of itijihad, or Islamic legal mastery, and how it must be embraced by an Islamic state complying with shari’a law. To ensure this, the Marja-Taqlid will supervise the activities of the Islamic state and render things ‘Islamic’ or ‘un-Islamic.’ Khomeni theorized how he felt Islam should operate in Iran and suggested a rather paradoxical theory: “Islamic governance grounded in the shari’a’s rule of law was gradually fading away in favor of a modernist perception of governance.” (Hallaq 153, 2011)
However, the reality of his regime cultivated a modern state and modern perceptions of governance, hence its paradoxical nature. This is perpetuated by the state in practice under the Pahlavi legal system. For example, according to Article 167 of the 1979 Constitution of the new Republic, court judges are required to adjudicate cases utilizing codified law. Upon the absence of codified law, their decisions rely on a fatwa given by a qualified jurist -- to the state’s standards and construction. The codification of the law by the state here conveys a modernized form of shari’a law that does not resemble the initial facets of pre-modern shari’a. As a result, the state was granted the ability to pronounce what is and is not Islamic. Further, any vague law requires the court to make a fatwa based on the principles of Islamic law, or even the judge himself can exemplify itijihad. As seen in Iran, Egypt, and Pakistan, the ulama is undermined here when the qualifications to legal mastery are made less exclusive upon modernization on behalf of the state (Hallaq 154-156, 2011).
In Indonesia after 1970, shari’a law was held to a similar standard. Hallaq identifies Law No. 14 of 1970 as a law that reinforced the judicial powers of shari’a courts, thus allowing them to be mediators of disputes before the level of adjudication, which assumes a courtroom setting with a case decision being determined. This is important to consider because it undermines shari’a law in that it was not emphasized as a law appropriate to make an adjudication. Rather, shari’a jurists mediate outside of the court in this context and are not given access to the courtroom. Likewise, the new Compilation of Islamic Law in Indonesia, which had the objective to foster unification of Islamic law across the country, drew on a more modernized version of the law. This resulted in many counterintuitive impacts that were exacerbated by the state (Hallaq 161, 2011).
For instance, after the collapse of the Suharto regime in 1998 via the operation of “decentralization” (aka Otonomi Daerah), laws No. 10 and 32 established in 2004 under the new Compilation, acknowledged the “relative autonomy” of the districts in Indonesia. This gives the federal government powers over both domestic and global policies while leaving domestic affairs up to the individual districts themselves. As a result, the residual impacts of this have caused a lack in a unified ideology of shari’a practiced across sixteen districts in Indonesia, unification being an imperative aspect of the pre-modern structure that informed shari’a. With that said, upon Indonesia’s decision to give powers to the state, it diminishes early objectives to achieve a unified ideology (Hallaq 162, 2011).
Fundamentally, the misconceptions concerning Islamic law have merely been upheld by the actions of the nation-states in the cases of Egypt, Pakistan, Iran, and Indonesia. The contents of this paper have analyzed the modernization of Islamic juristic practices in the latter part of the 20th century and only one isolated 21st-century context examined through a thickly described lens. With that said, extrapolation beyond the 20th century would further strengthen the assessment of whether shari’a law is prevalent and resembles its pre-modern structure. Seeing as the political context of four of these nation-states has fluctuated in time, perhaps Islamic law has been even further modified and resembles pre-modern shari’a structure even less than it did in a post-1970s context before the twenty-first century.
References
Hallaq, Wael B. An Introduction to Islamic Law. New York, NY: Cambridge University Press,
2011.
Hamid, Ruhi. Inside a Shari'ah Court. BBC, 2007.