ISLAMIC LAW AND THE CHALLENGES OF MODERNITY – book Sample
ISLAMIC LAW AND THE CHALLENGE OF MODERNITY
In examining the transformation of traditional Islamic legal culture in a world of nation-states and tracing the as-yet uneasy relationship of the culture with Western notions of human rights and civil liberties,
this volume is a contribution to the long-standing debates among scholars both East and West on the nature and functions of shari’a, Islamic law, in the modern age. Both the Western notion of”Islamic law” and the use of the concept of “shari’a” by the traditionalist and Islamist cadres among the Muslim authorities have become problematic.
As globalization forces continue to push societies toward streamlining or standardizing legal norms and international etiquette based largely on West ern notions, local populations are asserting their rights to determine their own laws and to maintain their own traditions.
Examples can be found across the globe at both the local and the regional level. Some of these conflicts have become bloody, while others are resolved in quiet processes of sociopolitical change through legal and institutional means.
The ideological debates that would determine the path of the country are often waged between two or more well-defıned populations of citizens that the national government must attempt to balance while simultaneously facing the demands of international organizations that insist on democratic processes to determine that the will of the people is being met (but on occasion, the government refuses to recognize democracy when the popular results differ from its own ideas of the directions in which the country should be heading).
The following chapters examine the role of laws and legal institutions in the contemporary Arab world. Where appropriate, the authors situate their analyses of Arab legal systems within the broader context of the political, ideological, economic, and social changes that have marked Arab history from the onset of Western encroachment on Arab affairs in the nineteenth century to the creation of independent nation-states in the twentieth, the beginnings of globalization, and the age of the Internet.
Throughout this long and eventful period of time, the processes of legal modernization in the Arab world have been caught up in a spiraling dynamic of largely contradictory political and ideological impulses that have ranged from partial or wholesale adoption of Western codes of law to mass-based efforts in support of renewed Islamifıcation of laws and legal institutions and that have variously legitimized their activities in the name of “modernity” and “progress,” “morality” and “authenticity,” or a mixture thereof.
Arab traditional law and legal institutions, including the educational requirements and professional competencies of the clerics and jurists who interpreted and administered the law, were at fırst indirectly affected by changes enacted in the Ottoman legal system in the nineteenth century.
With the growing presence of European colonial powers in Arab lands earlier in the Maghrib (North Africa), later in the Mashriq (Southwest Asia)-the nineteenth and early twentieth centuries brought increasing pressure from the West to replace or, at least, to modify Islamic laws and legal systems according to Western models. Only small pockets of Arab territory, mainly in the Arabian peninsula, escaped direct colonization and thus retained their traditional legal systems.
After independence from Western domination-earlier in the Mashriq, later in the Maghrib-in the twentieth century, the newly emerging Arab nation-states promulgated national codes of law that, to various degrees, perpetuated Western influence in both form and substance while deferring to Islamic law whenever possible.
It was primarily in the areas of family law and gender relations that the struggles on how or even whether to maintain the validity of Islamic law have been paramount. Arab Muslim reformist scholar ship, both clerical and lay, focused at an early date on matters of the Muslim family and women’s Islamic rights and obligations, as represented, for example, by some of the work of the Egyptian lawyer-theologian Muhammad Abduh (d. 1905) and his Syrian disciple Rashid Rida (d. 1935), whose background was in journalism. Reformers were inspired by the need to modernize Islam-mainly in “their region”-in order to restore it to its original strength while crafting the framework for the Islamic renewal in terms that differed from the West.
A similar sense of mission continues to inform multiple Islamic discourses in the Arab world that range from the reformist/modernist to the traditionalist and the Islamist. Gender questions remain the battleground on which most of the cultural and legal wars about modernization, authenticity, and divine prescriptions are waged. It is for this reason that the second half of this volume is dedicated to these issues.
In principle though not in fact, the notion of the sovereignty of Islamic law over all spheres of life has continued to prevail in areas such as commercial and penal law that were reframed on the hasis of Western models well before the promulgation of the national personal status codes.
According to Frank Vogel, most Muslim scholars have long accepted the westernizing changes on the grounds of “necessity” but also have refused to endow them with legitimacy so that “Islamic law remains-in faith if not in legal reality-the criterion for right action in Muslim life.”1
In the Arab world, especially in the Mashriq, the 1970s marked a popular-based withdrawal of support from state-proclaimed secular ideologies such as nationalism, Arabism, and socialism that was in large part galvanized by the Arab defeat in the 1967 war and the loss of Jerusalem and the West Bank to Israeli control.
The 1970s was also the decade that marked both the coming of age of the fırst generation of young men and women who had attained Arabic literary profıciency in the post independence government-sponsored schools open to all citizens and the larger availability of television. Starting with the “Islamic resurgence” of the 1970s, it was not only the newly strengthened Islamist cadres who intensifıed and popularized their demands to “restore the shari’a.”
Many of the faithful, alienated by an impoverishing modernity that they perceived as inspired by the West and dangerous to their moral as well as economic well-being, sought refuge in leading more religious lives and as a matter of piety focused on earnestly (re)appropriating the shari’a-derived criteria of lawful (hala/) and forbidden (haram) as moral yardsticks, while others supported the call to restore the shari’a as a means toward regaining cultural autonomy and authenticity.
State-sponsored legislation responded to these demands in limited ways, such as inserting constitutional provisions that recognized the shari’a as a-or even the–principal source of the laws of the land or by promulgating a new civi1 code in countries such as Jordan and the United Arab Emirates.
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