The Reform and Codification of Classical Fiqh Provisions of Family Law[127]

In the course of the twentieth century, as nation-states emerged among Muslim populations, classical fiqh conceptions of marriage and family were partially re­formed, codified and grafted onto modern legal systems in many Muslim-major- ity countries.^{[128] [129] The best-known exceptions were Turkey, which abandoned fiqh in all areas of law, Saudi Arabia, which preserved classical fiqh as fundamental law and attempted to apply it in all spheres of law, and Muslim populations that came under communist rule.}

All these changes transformed relations between Muslim legal tradition, state and social practice. Codes and statute books took the place of fiqh manuals; family law was no longer solely a matter for private scholars — the fuqaha — op­erating within a particular fiqh school; rather it became the concern of the legis­lative assembly of a particular nation-state. Confined to the ivory tower of the seminaries, fiqh and its practitioners became increasingly scholastic, defensive and detached from realities on the ground.

With the rise of Islam as both a spiritual and a political force in the latter part of the twentieth-century, Islamist political movements became closely iden­tified with patriarchal notions of gender drawn from classical fiqh. Political Islam had its biggest triumph in 1979 in the popular revolution that brought clerics into power in Iran. This year also saw the dismantling of some of the reforms intro­duced earlier in the century by the modernist governments — for instance in Iran and Egypt — and the introduction of the Hudood Ordinances in Pakistan that ex­tended the ambit of fiqh to certain aspects of criminal law. Yet this was the year when the United Nations General Assembly adopted the Convention on the Elim­ination of all forms of Discrimination Against Women (CEDAW), which gave gen­der equality a clear international legal mandate.

The decades that followed saw the concomitant expansion, globally and lo­cally, of two powerful but seemingly opposed frames of reference. On the one hand, the human rights framework and instruments such as CEDAW gave wom­en’s rights activists what they needed most: a point of reference and a language with which to resist and challenge patriarchy. The 1980s saw the expansion of the international women’s movement and the emergence of NGOs with interna­tional funds and transnational links that gave women a voice in policymaking and public debate over the law. On the other hand, Islamist forces — whether in power or in opposition — started to invoke ‘Shari‘a’ in order to dismantle ear­lier efforts at reforming and/or secularizing laws and legal systems. Tapping into

a discussion, see Fazlur Rahman, ‘A Survey of Modernization of Muslim Family Law’, Interna­tional Journal ofMiddle East Studies 11 (1980).

popular demands for social justice, they presented this dismantling as ‘Islamiza­tion’ and as the first step to bring about their vision of a moral and just society.

In other words, the twentieth century witnessed the widening of a chasm be­tween notions of justice and gender rights found in Muslim legal tradition and those that were being adopted internationally. This chasm, this dissonance, as we shall see, was as much political as epistemological. I now turn to the texts of Tahir Haddad and Fazlur Rahman, which try to negotiate and bridge the chasm. They appeared at two critical moments in the twentieth-century politics of modernism: the struggle against colonial powers, and the challenges posed by political Islam. At both moments, the issue of gender rights and Muslim legal tra­dition became part of an ideological battle between different forces and factions.