Legal borrowing?

The possible continuity between canonization and codification and between earlier, pre-19th- century forms of codification and the 19th- and 20th-century codification projects have led several scholars to question the perception of the codification projects as foreign to the Islamic world.²⁶ However, as has been argued above, several codification projects, especially in the sec­ond half of the 19th century, were explicitly inspired by — or borrowed from — contemporary European codes, most notably the French Napoleonic codes.

In recent decades, scholars who studied legal reforms and the circulation of the notion of legal codification throughout the Islamic world, such as Donald Horowitz²⁷ for Malaysia and Avi Rubin²⁸ for the Ottoman Empire, have sought to explain this circulation through the analytical lens of legal borrowing or legal transplants.²⁹ To be sure, as Avi Rubin has pointed out in his study of legal borrowing in the 19th-century Ottoman Empire, numerous, if not most, legal systems have always borrowed to varying extents, implicitly or explicitly, from other legal systems. But as a conceptual framework, the lens of legal borrowing has enabled scholars to examine the dynamics between the ‘indigenous’ and the ‘foreign’. The main dif­ference between the employers of this framework is the extent to which they understand it as an ontological description of both the ‘indigenous’ and the ‘foreign’.

The study of the Ottoman codification project provides a useful example. Several stu­dents of the Mecelle have tried to trace its origin. In his discussion of the Ottoman Mecelle, for example, Joseph Schacht saw it as an outcome of ‘the influence of European ideas’ and ‘not an Islamic but a secular code’; while Majid Khadduri and Herbert Liebensky contended that the Mecelle is not a code in the European sense but a digest of existing rules of Islamic law.³⁰ Avi Rubin, on the other hand, has offered a third approach.

[w]hile the earlier versions of the criminal code contained a substantial presence of the Shariah, and the final version was clearly derived from Napoleonic law, it was not a wholesale adoption of the French code. The Ottoman reformers chose to leave out a number of articles that were part of the French code, and added others as they saw fit.³¹

Accordingly, Rubin has suggested abandoning the ‘either or’ approach with regard to the or­igin and source of inspiration of the Ottoman civil code, and to see the Mecelle as a ‘syncretic artifact’, containing both Islamic and European features.

Rubin’s interpretation of the Ottoman codification project as a ‘syncretic artifact’ (as well as Schacht’s and Khadduri and Liebensky’s approaches to the code) is based on an analytical categorization of certain features as ‘Islamic’ (or ‘indigenous’) and ‘European’ (or ‘foreign’), a categorization that is imposed to a significant extent by the historian. But in recent years, the semiotics of law and jurisdiction, that is, the focus on the ‘Islamic’ meaning ascribed to legal concepts and practices, has received a greater deal of scholarly attention. As Iza Hussin has recently pointed out,

Identification as a ‘Muslim state’ is self-selective and shifting: in some cases a state may be ‘Muslim’ in matters of public observances, such as the commemoration of state holidays but not in others — for example, the recognition of the Qur'an as a source of legislation; in some cases both the state and the groups that oppose it claim to represent Islam. Both the categories of ‘Islamic law’ and ‘Muslim state’, therefore, revolve around understanding of authority, legitimacy, and jurisdiction. Who decides the meaning of Islamic law? Who judges where it begins and ends, and where the role of the state is in Islamic law? Is Islamic law a part of the state or autonomous from it? Key to understanding these questions is that Islamic law is a site of contest and a realm for the articulation of state-society relationships.³²

Put differently, the ‘Islamicness’ and ‘foreignness’ of the codes were historically contin­gent and interpreted differently by different actors.

Finally, the issue of codification of Islamic law and the meaning ascribed to it reminds us that the ‘Islamic’ meaning of ‘Islamic law’ is far from fixed. By delineating legal spheres and by im­plementing certain substantive rules in specific legal realms, such as family law, self-proclaimed Muslim rulers, ruling elites and states (as well as, in some cases, non-Muslim states) have shaped the manner in which many of their subjects and citizens understand the nature of Islamic law.

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