Codification and the localization of Islamic law
Codification, as an act of sovereignty, was instrumental in producing local versions of ‘Islamic law’. While this localization of Islamic law is often associated with the rise of the nation state across the Islamic world, the earlier, pre-19th-century codification, or semi-codification projects invite us to include other moments of localization of Islamic law that took place in other polities, such as the Ottoman and Mughal Empires.
In any case, it is worth reiterating, the localization was a result of the intervention of the ruling dynasty or the state.More generally, the different codification projects throw into sharp relief the tension between the universal and the local in Islamic legal and theological discourses: while some trends in Islamic legal and political thought have tended to emphasize the commitment of the Muslim community to God’s will, which is not territorially bounded, others have been more concerned with defining political and legal spaces where this will could be implemented. As Khaled Abou El Fadl has suggested,
[t]he creation [... ] of a territorial state that is charged with the implementing of the specific and positive rules of Shari'ah law, [. ] is not an Islamic imperative. In effect, this position maintains that political boundaries, legal institutions, and territory need not define that Islamic moral community.34
Indeed, as an ongoing engagement with Revelation, the Islamic tradition(s) have recognized that the divine message was intended to humanity in general, despite the concrete historical circumstances of Revelation (the Prophet was an Arab from a specific tribe who spoke Arabic, hence the Qur'an refers to itself as an ‘Arabic Qur’an’). The dividing line was between those who accepted the revealed divine message of the Prophet and constituted the community of believers (the umma) wherever they may reside, and those who rejected the message, the infidels.
To be clear, those jurists never relinquished the ideal of a territorial polity that implements Islamic law in its domains,35 but they also allowed Muslims who did not live in such a polity to remain wherever they were as long as they were able to lead their lives in accordance with the Qur’an and Sunnah of the Prophet. On the other hand, some jurists developed a division of the world into two major domains, the Abode of Islam (the lands that were under Muslim rule) and the Abode of War (the lands that were under non-Muslim rule), and introduced a geographical divide between believers and infidels. These jurists argued that Muslims living in lands ruled by non-Muslims should migrate to the Abode of Islam.36On a somewhat different level, most jurists kept the Muslim community, and not the specific polity within the Islamic world, their main point of reference. Indeed, the considerable amount of independence from rulers that the jurists maintained enabled Islamic (Sunni) jurisprudential discourse to remain what Sheldon Pollock has described as ‘cosmopolitan’. This is not to say that Islamic (Sunni) jurisprudential thought has not articulated over the centuries several perceptions of territory and territoriality (beyond the above-mentioned distinction between the Abode of War and the Abode of Islam). For example, it has recognized the property rights of Muslims and non-Muslims over their lands and homes.37 Moreover, jurists have been willing to accept regional judicial differences and customs (often referred to as Urf or 'dda),3it but before the rise of dominant legislating rulers, these concepts referred to local judicial practices and concepts within the broader, supra-territorial legal sphere of the umma.
The codifying ruling elites significantly altered the relationship between the legal sphere of the Muslim community and the local political entity. While some codification projects still nodded to the notion of a broader Islamic community and to the pan-Muslim notion of divine revelation, the act of codification took place in the context of a territorially bounded polity that was ruled by a specific sovereign, be it the sultan, a king or ‘the people’.
Further, since each code produced a specific version of ‘Islamic law’, as codification entailed selecting certain views and rejecting or marginalizing others, it created local, territorially bounded versions of ‘Islamic law’ across the Islamic world. The codification-as-localization of Islamic law and the implementation of the codes were enabled by the different legal institutions of the state. The proliferation of religious and legal establishments with standardized and hierarchical career and training tracks on the one hand, and the state’s legal system on the other were instrumental in this process. These establishments provided the state with Islamic legitimacy (although this legitimacy was occasionally contested).39 In addition, officially appointed juristconsults (muftis) and judges were also important in the codification process, as they emphasized in their rulings certain legal views while marginalizing others. Moreover, the legal system followed and promoted their codes in its rulings and procedures. In so doing, it propagated to its employees and the litigants the code’s particular interpretation of Islamic law.Finally, a few words about the relationship between the different Islamic legal codification projects and the rise of the nation state as the main form of political organization throughout the Islamic world are in order. As I have already suggested, certain codification projects of Islamic law predated the rise of the nation state. However, the codification and the localization of Islamic law served the emerging nation states in cementing the political and legal boundaries of the state. Moreover, in terms of legitimacy, the codification allowed the nascent nation states to make certain claims about their role as protectors and promoters of an Islamic conduct in public life. This is an important tension of the codification projects of Islamic jurisprudence, as will be discussed in the concluding section of this chapter.
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