What happened to the classical Islamic legal system?

With the advent of the age of Colonialism, the Islamic legal system was consistently replaced by legal systems imported from Western colonial states. The factors contributing to the dete­rioration and replacement of Islamic law are numerous, but primary among those factors was the pressure exerted by foreign powers for a system of concessions and special jurisdictions that served the economic and political interests of the colonizers, and a parasitical native elite that derived and maintained its privileged status from the financial, military and cultural institutions of colonial powers.

Perhaps more destructive to the Islamic legal system was the fact that the institutional replacement of Islamic law was accompanied by a process of cultural transformation that led to the deconstruction of the very epistemological foundations of Islamic jurisprudence.

The cultural impact of Colonialism upon Muslim societies was and continues to be im­measurable. In the 19th century, the Western-educated intelligentsia played a critical role in the birth of the reform movement that sought to modernize Islamic law. In response to the transplantation of European codes of law into the Muslim world, especially in the 1850s and 1860s, Muslim legal experts, most often trained in Western institutions, sought to re­form Islamic law by making it more deterministic, uniform, and predictable. In most cases, this amounted to a process of codification, the most famous of which was the Mejelle (also known as Majallat al-Ahkdm al- Adliyya) completed in 1877. But these efforts at reform meant challenging the epistemological foundations of the Islamic legal system and a radical reinven­tion of Islamic law from a common law-like system to a system tailored after the civil law, especially the Napoleonic Code of 1804. Very frequently, legal reformers unwittingly trans­formed Islamic law from a system of common laws united by shared communities of legal practice, methodological and analytical tools, technical linguistic practices, and a coherent system of authoritativeness and legitimacy, to nothing more than a compilation of determin­istic commands.

Modern so-called Shari‘ah-law codifications exist in tension with the inherited classical legal tradition because they limit the interpretive possibilities by imposing a positivist model upon Islamic law. In many ways, these Shari ‘ah-law codifications collapse the distinction between Shari ‘ah and fiqh, and while they may increase the predictability of the law, they also substantially narrow the available space for searching or negotiating the Divine Will. This is to say, structurally and epistemologically, these Shari ‘ah-law codifications exist in considerable tension with the inherited Islamic classical legal tradition. As discussed earlier, the substantial epistemological tension between modern codes of law and the Islamic classical legal tradition has led a number of scholars to argue that Islamic law was not law at all.⁶¹ As noted earlier, whether this is true depends on how we understand and define law.