The quest for a code
Most accounts of Islamic legal codification point to the significance of the Ottoman experiments with codification over the course of the 19th century, starting with the Land and Penal Codes of 1858 up to the quite famous civil code, the Mecelle (or Mecelle-i Ahkam-i Adliyye), two decades later.
While scholars have been debating the extent to which the codes were ‘authentically’ Ottoman or responses to European codification projects (a point that will be discussed in greater detail below), it is evident, as Avi Rubin has argued recently, that the Ottoman codification project should be understood as part of a global codification trend that took place simultaneously in several centres across the world.1 From the perspective of Islamic legal history, the Mecelle is of particular significance. Compiled by a committee ofjurists led by the renowned jurist and statesman Ahmed Cevdet Pasa (d. 1312/1895), the Mecelle is frequently referred to as the first attempt of a state to codify Islamic (more specifically, Hanafi) jurisprudence. While some members of the Ottoman elite suggested translating the French Civil Code and applying it throughout the empire, the opinion ofjurists who thought that the Ottoman civil code should draw on Islamic jurisprudence prevailed.2 The committee selected the opinions from ‘the most reliable works’ of the Hanafi school and, in some cases, the opinions that were ‘more suitable for the needs of our times’.3 Indeed, in the following decades and centuries, jurists across the Islamic world were inspired by the Mecelle and attempted to produce their own codes.The historical interest in codification has been mirrored in the historiography. Scholars of codification of Islamic law have devoted considerable attention to the emergence of legal codes throughout the Middle East and the Islamic world more generally.
In their studies of codification of Islamic law, scholars have often looked for a specific type of document, similar to European codes (such as the Napoleonic legal code). In such a document, the contending views and multivocality of Islamic jurisprudence are suppressed in favour of a single opinion and the numbered articles are organized thematically. Moreover, significant aspects of Islamic jurisprudence, most notably rules concerning rituals (‘ibdddt), were not included in the code.4 However, different legal codes vary in the extent to which they cover the remaining spheres of law.Consider, for example, the late 19th-century Egyptian codification of personal status law (al-ahkdm al-shar‘iyya ft al-ahwal al-shakhsiyya). Inspired to a considerable extent by the French experience with codification of Islamic jurisprudence in Algeria earlier in the 19th century, Muhammad Qadri Pasha (d. 1306/1888), roughly a contemporary of the aforementioned Cevdet Pasa, published the Egyptian code of personal status according to the Hanafi jurisprudence in 1875, after a failed attempt by the Egyptian ruler Khedive Ismail to initiate the compilation of a civil law code similar to the Mecelle in Egypt. In the following decades, several Egyptian codes that were based on al-Qadri’s code were published.
Much like the Ottoman Mecelle, Qadri’s code was an attempt to ‘(re)construct [...] Hanafi jurisprudence in the form of positive law, as a code’.5 Intended as a reference manual in the newly founded Mixed Courts, the code drew heavily on what Qadri considered the predominant view (arjah al-aqwdl) of the Hanafi school of law. In so doing, in the words of Kenneth Cuno, Qadri eliminated ‘the lack of uniformity [of Hanafi jurisprudence] so as to make Muslim family law legible to foreigners and Egyptians who were trained in French law’.6 Qadri’s code consisted of 647 numbered articles, which were divided into chapters and sections (138 pages in the printed edition).
More importantly, the code stated the preferred rule, but did not dwell on the different opinions within the Hanafi tradition concerning the issue at stake or the jurists’ reasoning that led them to this ruling. In short, ‘Qadri’s code may have made Muslim family law appear to be an unvarying set of rules’.7Consider the following example. Hanafi jurists had been debating the question of a woman’s right to arrange a marriage contract on her own. While some jurists argued that a legally capable woman had an absolute right to marry on her own except in the case of the unsuitability of the groom (in which case her guardian could intervene), others argued that the marriage was valid regardless of the unsuitability of her future husband. A third view argued that a woman could not contract a marriage on her own without her guardian’s consent. In his code, Qadri endorsed the view that a legally capable woman could contract her own marriage without the intervention of the guardian, assuming that her husband is suitable and that the dower is at the going rate. This was the preferred opinion at the time, but Qadri nevertheless did not mention the alternative views in the code.
Moreover, codifiers at times transgressed the doctrinal boundaries of the schools of law. In some cases, codifiers picked rules from different Sunni jurisprudential traditions (a practice known as takhayyur or talfiq).3 In other cases, they chose to interpret the Qur'an and the Prophetic traditions directly, while overlooking centuries ofjurisprudential and hermeneutic debates among jurists.9
Although — or perhaps because — the legal codes considerably reduced the plurality of views of the different Islamic jurisprudential traditions, they enjoyed significant popularity throughout the Islamic world over the course of the late 19th and the early 20th centuries. This popularity may be understood in the broader, global context, in which legislators and rulers sought to propagate the ‘legibility and rationality’ of their respective legal systems.
Avi Rubin has recently suggested that these developments, at least in the Ottoman case (but in other contexts as well), are rooted in the legal response to the growing economic integration of different parts of the Islamic world into the world economy in the 19th century and, in some cases, such as in India and Southeast Asia, in response to direct and indirect demands and expectations of the colonial authorities.10 By the mid-20th century, the legal code had become a norm. In 1948, for example, the Egyptian jurist 'Abd al-Razzaq al-Sanhuri (d. 1391/1971) compiled another civil code, which was based on the late 19th-century codes and incorporated several rules that originated from the Sunni jurisprudential tradition. Syria (in 1949) and Libya (in 1954) based their civil code on al-Sanhuri’s code. At the same time, Iraq, Kuwait and Jordan’s codes were inspired by the Ottoman Mecelle, as were the codes of other Muslim countries, such as Malaysia.11To conclude this section, it is worth pointing to two key issues that figure prominently in many studies of codification of Islamic law in the 19th and the 20th centuries. The first is the emphasis on the physicality of the code: students of codification have stressed, quite rightly, that the code’s mise-en-page and arrangement were evidently different from other genres of Islamic legal writing.12 Accordingly, most studies of Islamic legal codification in the modern period have looked for a document or reference manual with specific features. But it is quite possible that pre-19th-century jurists had a ‘codification mindset’ that did not result in a document or a manual. Instead, pre-19th-century jurists may have been interested in specifying the opinion within the school that jurists need to apply. In so doing, they, too, reduced in practice the multivocality of the Islamic jurisprudential tradition. In the Ottoman Empire, for example, members of its highly regularized learned hierarchy were expected to know what opinions and jurisprudential works to consult on specific issues, although the learned hierarchy never produced a code.
The second issue that is often emphasized in studies of codification is the unidirectionality of the codification project. Studies of Islamic legal codification have tended to present a narrative, sometimes lamentingly,13 that leads from the plurality of voices and opinions in the pre-codified Islamic jurisprudential tradition to the succinct and selective nature of the code. This narrative has tended to overlook the commentaries that jurists wrote about the legal codes at least in the early decades of Islamic legal codification. Late Ottoman jurists, such as 'Abd al-Sattar (who was also a member of the Mecelle committee) and Mesut Efendi,14 wrote commentaries on the Ottoman civil code in which they reinserted the code into the Hanafi jurisprudential tradition, in a similar manner to their colleagues in previous centuries with other abbreviated jurisprudential texts. To put it differently, some readers and commentators of the code who were well read in the Islamic legal tradition maintained the multiplicity of voices of the tradition in different genres. While most modern scholarship has tended to emphasize the emergence of the codes, much less attention has been devoted to the venues and genres that (re)introduced multiplicity ofjudicial opinions around the legal code.15 Parenthetically, one may add that relatively little attention has been paid to the resistance of jurists to the codification project over the course of the 19th and 20th centuries.
I.
1.1 Whose code and what 'Islamic law'?
In most histories of codification of Islamic law in the 19th and the 20th centuries, the state — be it an empire ruled by Muslims (such as the Ottoman Empire), a colonial state (as in North Africa, much of South East Asia, Central Asia and South Asia), or nation states with different political regimes — figures quite prominently as the driving force behind the codification project. For many scholars of Islamic law, the emergence of a state as a central legislator marks a major rupture in Islamic legal history.
According to many narratives of Islamic legal codification, Islamic jurisprudence before the modern era (i.e. before the 19th century) was by and large the realm of the jurists (‘ulama ’ and fuqaha '). Accordingly, Islamic law is often referred to as jurists’ law to differentiate it from other legal regimes where the ruler (the king, prince or ‘the people’) is the legislator and an important source of legislative authority and legitimacy. According to this narrative, the predominance of jurists who were independent from the state/ruler in the process of law making shaped Islamic jurisprudential discourse. Rudolph Peters, for example, has argued that the jurists were involved in a scholarly debate, in which conflicting and often contradictory views were discussed ‘because of differences in understanding the texts and in the use of the hermeneutical tools, the Shari'ah as laid down by the jurists is not uniform’.16 The intervention of the state significantly reduced the plurality of views. Furthermore, Peters interprets the codification project as an attempt to subjugate Islamic law to the state: ‘Codification [... ] implies that only the state determines what law is and that state law is the highest form of law’.17 In a similar vein, Aharon Layish has contended that ‘the codification of Shari'ah by Muslim legislatures [... ] brought about the transformation of Shari ‘ah from “jurists’ law” [...] to “statutory law” [... ]. This transformation entails profound implications the importance of which is the deprivation of the fuqaha ' of their “legislative” authority and its investment in secular legislature’.18 What is more, as has been suggested above, the codification of Islamic law enabled rulers and states to carve out specific legal spheres and spaces where the codified Islamic law could be applied, such as personal status law. By carving those spheres, as Husseyn Agrama has pointed out, ‘th[e] sovereign power of decision is, and has been, an expression of the state’s sovereign powers. This sovereign power of decision, in turn, is typically vested in state legal authority and the structure of the rule of law’.19 In other words, codification has to be perceived as a manifestation of the state’s sovereignty throughout the Islamic world, and the subjugation of the jurists to this perception of sovereignty. Moreover, as will be further discussed below, the codification enabled rulers and states to localize their version of Islamic law and bound it within the political boundaries of their polity.
To be clear, the fact that states and rulers initiated the different codification projects does not mean that 'ulama' were not involved in those projects. To a considerable extent, their involvement was required to provide a sense of Islamic legitimacy to the codification projects. Doubtlessly, some jurists, like Cevdet Pasa, genuinely believed in the importance of producing an Islamic legal code and were involved in the compilation of the codes. The emergence of the code, however, meant that jurists were no longer the sole applicants of the Islamic jurisprudential tradition, and judges, who were not trained as fuqaha '/'ulama ', could and did apply the code.
One of the more significant outcomes of the processes I have surveyed thus far is that ‘Islamic law’ increasingly became a reified body of substantive rules. Therefore, one cannot easily speak about the ‘codification of Islamic law’, since the very notion of ‘Islamic law’ is a product of this codification.20
Paying closer attention to the role the state and legislators who did not hail from the ranks of the 'ulama ' in the codification projects of the 19th and 20th centuries may also enable us to situate these projects in the broader context of the relationship between the jurists and rulers/ states throughout Islamic history. As Maribel Fierro has recently argued,
Codification can also have a more general meaning, that of the creation of codes in the sense of compilations of written rules and regulations collected and arranged in a systematic way, usually by subject. Codification in this general sense did exist in the Muslim world, starting from the ‘canonical’ compilations of hadith (traditions of the Prophet) [... ].21
Indeed, attempts by rulers to intervene in the doctrines of Islamic jurisprudence and produce codes of sorts may be seen as early as the eighth century. Quite famously, the Abbasid vizier Ibn al-Muqaffa' (d. 139/757) tried (unsuccessfully) to convince the Caliph al- Mansur to produce a jurisprudential code for his empire.22 Furthermore, Fierro has pointed to attempts to codify Islamic law in the Islamic West. The tenth-century Fatimid caliph al-Mansur (r. 946—953), for instance, issued a compilation of laws that was fairly close to a legal code. However, these codification projects were the exception and not the rule in the pre-Ottoman (or, arguably, the pre-Mongol) period, as jurists asserted their independence from the rulers in determining the doctrines of Islamic jurisprudence.23
The post-Mongol period in the eastern Islamic lands (from the 13th century onwards) marks a new chapter in the history of the relationship between jurists and rulers. Elsewhere, I have suggested that the Ottomans and many of their post-Mongol contemporaries sought to regulate the doctrines within the Hanafi school of law that members of the imperial learned hierarchy were supposed to consult and apply. The citation practices of the imperial learned hierarchy captures this development: provincial muftis who were appointed by the Ottoman dynasty, for instance, were expected to cite the jurisprudential texts they relied on in their rulings. As I have suggested above, although this doctrinal regulation did not result in a physical code, it contributed to the marginalization of certain views within the Hanafi Madhhab. The Ottoman case, therefore, may offer an example of a codification project without a code.24
The intervention of the state/ruler also illustrates the difference between these codification projects and other types of canonization of Islamic law, such as the rise of the legal compendium (mukhtasar) that Knut S. Vikor has proposed to consider as a predecessor to the Ottoman Mecelle (and, by extension, to other Islamic legal codes).25 While one could argue that codification is a form of canonization, not every type of canonization requires the intervention of the ruler/state. Despite the institutional difference between canonization and codification, as the above - mentioned commentaries on the Ottoman Mecelle suggest, it is quite possible that many across the Islamic world discerned this continuity between the mukhtasar and other legal compendia and the codification projects.
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