Conclusion: codification, centralization and marginalization of ‘Islamic law'
This chapter has examined the relationships between several key concepts and processes that are often associated with the codification of Islamic law. I have suggested that several codification projects predated the modern period and its codification projects and, in many ways, can be perceived as their precursors.
The continuity between the pre-modern and modern codification projects, I have argued, may raise questions with regard to the meaning (or, rather, multiple meanings) ascribed to codification in different historical contexts by different actors. Moreover, I have pointed to the contribution of the codification projects to the emergence of local versions of ‘Islamic law’. This localization took place in different political organizations, from pre-modern empires, such as the Ottoman Empire, to the modern nation states. But whatever the political organization was, codification was an act of sovereignty that allowed sovereigns to organize and delineate legal spheres in their domains.The concluding question of this chapter, then, is whether or not the different codification projects of Islamic law led to the marginalization of Islamic law throughout the Islamic world. Some scholars of Islamic law, such as Peters, have focused on the institutional history of Islamic law in the late 19th and the 20th centuries and concluded that the codified version of Islamic law is a pale shade of the non-codified complexity and plurality of the Islamic jurisprudential discourse. Furthermore, the codified version has been applied selectively in a fairly limited number of legal spheres. Seen from this perspective, Islamic law has been marginalized and allocated to certain legal enclaves. On the other hand, as Iza Hussin has recently argued, the institutional support of the state and its legal system rendered ‘Islamic law’, albeit in its codified versions, into a central element of the quest for legitimacy of the state.40 Moreover, the reified category of ‘Islamic law’ enabled its proponents to promote what they considered Islamic substantive rules within different legal and political systems that were not necessarily considered ‘Islamic’, such as colonial states and secularist republics.
Notes
1 Avi Rubin, ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codification’, Journal of the Economic and Social History of the Orient 59(5) (2016): 825—56.
2 Avi Rubin, ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth Century’, Continuity and Change 22(2) (2007): 282—3. Numerous studies have been published about the Mecelle. For a recent evaluation of this codification project see Samy Ayoub, ‘The Mecelle, Shari'ah, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Century’, Journal of the Ottoman and Turkish Studies Association 2(1) (2015): 121—46.
3 One of the commentators on the Mecelle added to the code’s articles the citations (nuqul) from the Hanafi ‘books of high repute’, thus emphasizing the continuity between the code and the (Ottoman) Hanafi jurisprudential tradition.
4 In some cases, as in the late Ottoman Empire, jurists made a distinction between codified Islamic law and the non-codified Islamic law. As Susan Gunasti has recently pointed out, ‘In the late Ottoman context, as elsewhere in the Muslim world, Shari ‘ah acquired the meaning of a legal code and its invocation came to be associated with constitutionalism. Fiqh, by contrast, came to signify the Islamic legal tradition — a tradition that was well defined, had a clear corpus, and had authority figures with whom one must interact. Supporting Shari‘ah was about conferring legitimacy on the constitution, whereas supporting fiqh was more closely associated with the role of Islam in the law-making process. Susan Gunasti, The Late Ottoman Ulemas Constitutionalism, Islamic Law and Society 23(1-2) (2016): 98-9.
Kenneth M. Cuno, Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt (Syracuse, NY: Syracuse University Press, 2015), 166.
Ibid., 167.
Ibid., 169.
It is worth stressing that, as Ahmed Fekry Ibrahim has recently demonstrated, the practice of takhayyur and talfiq predated the codification projects of the 19th century.
See Ahmed Fekry Ibrahim, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse, NY: Syracuse University Press, 2015).Aharon Layish, ‘The Transformation of the Shari'a from Jurists' Law to Statutory Law in the Contemporary Muslim World', Die Welt des Islams, New Series 44(1) (2004): 85-113, 95.
Avi Rubin, ‘Modernity as a Code', in The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State, ed. Iza R. Hussin (Chicago: University of Chicago Press, 2016). For the codification of the Hanafi tradition in Afghanistan, see Faiz Ahmed, ‘In the Name of a Law: Islamic Legal Modernism and the Making of Afghanistan's 1923 Constitution', International Journal of Middle East Studies 48(4) (2016): 655-77.
Ron Shaham and Aharon Layish, ‘Tashri'', in The Encyclopedia of Islam, 2nd edn; and Iza R. Hussin, The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016), 150.
See, for example, Tobias Heinzelmann, ‘The Ruler's Monologue: The Rhetoric of the Ottoman Penal Code of 1858', Die Welt des Islams 54 (3-4) (2014): 292-321; Cuno, Modernizing Marriage, 158-84; and Rubin, ‘Modernity as a Code'.
See, for example, Wael B. Hallaq, Shari "a: Theory, Practice, Transformation (New York: Cambridge University Press, 2009), 357-70.
‘Abd al-Sattar al-Quraymi, Sharh al-Qawaid al-Kulliyya: Sharhan li-Qawaid al-Majalla (Jeddah, Saudi Arabia: Maktabat Rawa’i' al-Mamlaka, 2010); Mesut Efendi, Mir'at-i Mecelle (Istanbul: Matba'a-yi Osmaniye, 1881). Mesut Efendi included citations from the ‘authoritative books' of the Hanafi jurisprudential tradition. This is a practice that members of the Ottoman imperial learned hierarchy had been employing for centuries. In the endorsement (taknz) Cevdet Pasa wrote for 'Abd al-Sattar al-Quraymi's commentary, he weaved al-Quraymi's commentary in the Hanafi tradition by employing and manipulating elemts from the titles of major Hanafi legal works.
One could compare the commentaries on the codes to commentaries of abridged legal manuals (mukhtasar) in the pre-modern period. In the centuries following the compilations of these manuals, numerous commentaries were written. Many of these commentaries situated the opinions cited in the mukhtasar within the broader range of opinions of the school. For a comparison of the codes with the mukhtasars see Knut S. Vikor, Between Good and the Sultan: A History of Islamic Law (London: Hurst, 2005), 230-1. See also Mohammad Fadel, ‘The Social Logic of Taqlid and the Rise of the Mukhtasar', Islamic Law and Society 3(2) (1996): 193-233.
Rudolph Peters, ‘From Jurists' Law to Statute Law or What Happens When the Shari'a is Codified', in Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 83. Ibid., 88.
Layish, ‘The Transformation of the Shari'a', 85-6.
Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (Chicago: University of Chicago Press, 2012), 226.
Hussin, Politics of Islamic Law, ch. 3.
Maribel Fierro, ‘Codifying the Law: The Case of the Medieval Islamic West', in Diverging Paths? The Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana Rodriguez (Leiden: Brill, 2014), 100-1.
Muhammad Qasim Zaman, ‘The Caliphs, the ‘Ulama’, and the Law: Defining the Role and Function of the Caliph in the Early 'Abbasid Period', Islamic Law and Society 4(1) (1997): 1-36.
Fierro, ‘Codifying the Law', 99-118.
Guy Burak, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (New York: Cambridge University Press, 2015).
Vikor, Between God and the Sultan, 230-1.
Ibid.; Fierro, ‘Codifying Islamic Law'; Burak, The Second Formation.
27 Donald L. Horowitz, ‘The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change', The American Journal of Comparative Law 42(2) (1994): 233—93.
28 Rubin, ‘Modernity as a Code'.
29 Alan Watson famously coined this term: see Legal Transplants: An Approach to Comparative Law (Charlottesville: University Press of Virginia, 1974).
30 Both views are cited and discussed by Abi Rubin in his ‘Legal Borrowing and Its Impact on Ottoman Legal Culture', 283.
31 Ibid., 282.
32 Hussin, The Politics of Islamic Law, 15.
33 Mecelle-yi Ahkam-i Adliyya (Istanbul: n.p., 1901—4), 3.
34 Khaled Abou El Fadl, ‘The Unbounded Law of God and Territorial Boundaries', in States, Nations and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York: Cambridge University Press, 2003), 217-18.
35 Ibid., 219.
36 Abou El Fadl has argued that this divide was quite ambiguous in the writings of many pre-modern jurists. Certain jurists allowed Muslims to reside in what was considered the Abode of War as long as these lands afforded them safety and freedom to practise their religion. Ibid., 218.
37 Ibid., 214-28.
38 See, for example, Gideon Libson, ‘On the Development of Custom as a Source of Law in Islamic Law', Islamic Law and Society 4(2) (1997): 131-55.
39 Burak, The Second Formation of Islamic Law; Hussin, The Politics of Islamic Law; Maurits S. Berger, ‘Shari'ah and the Nation State', in The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate Publishing Ltd, 2014), 223-34.
4 0 Hussin, The Politics of Islamic Law.
Selected bibliography and further reading
Abou El Fadl, Khaled. ‘The Unbounded Law of God and Territorial Boundaries'. In States, Nations and Borders: The Ethics of Making Boundaries, ed. Allen Buchanan and Margaret Moore (New York: Cambridge University Press, 2003), 214-28.
Ahmed, Faiz. ‘In the Name of a Law: Islamic Legal Modernism and the Making of Afghanistan's 1923 Constitution'. International Journal of Middle East Studies 48(4) (2016): 655-77.
Cuno, Kenneth M. Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early TwentiethCentury Egypt (Syracuse, NY: Syracuse University Press, 2015), esp.
ch. 5.Fierro, Maribel. ‘Codifying the Law: The Case of the Medieval Islamic West'. In Diverging Paths? The Shapes of Power and Institutions in Medieval Christendom and Islam, ed. John Hudson and Ana Rodriguez (Leiden: Brill, 2014), 98-118.
Heinzelmann, Tobias. ‘The Ruler's Monologue: The Rhetoric of the Ottoman Penal Code of 1858'. Die Welt des Islams 54 (3-4) (2014): 292-321.
Hussin, Iza R. The Politics of Islamic Law: Local Elites, Colonial Authorities, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016).
Layish, Aharon. ‘The Transformation of the Shari'ah from Jurists' Law to Statutory Law in the Contemporary Muslim World'. Die Welt des Islams, New Series 44(1) (2004): 85-113.
Peters, Rudolph. ‘From Jurists' Law to Statute Law or What Happens When the Shari'ah is Codified'. In Shaping the Current Islamic Reformation, ed. B. A. Roberson (London: Frank Cass, 2005), 81-94.
Rubin, Avi. ‘Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth Century'. Continuity and Change 22(2) (2007): 279-303.
Rubin, Avi. ‘Modernity as a Code: The Ottoman Empire and the Global Movement of Codification'. Journal of the Economic and Social History of the Orient 59(5) (2016): 825-56.