Part One: The story told about Islamic Law claims it needs reform
Most of Islam's history has been defined by the separation of State and Law, which prevented Sharī‛a criminal penalties from monopolizing the rule of law.
In the name of Allah, the most Gracious, the most Merciful
In a story related from the early days of Islam, it is said that the ‛Abbāsid Caliph asked Imam Mālik on three separate occasions to take responsibility for formulating his fiqh into a law binding on all Muslims. Each time, the mujtahid scholar declined. However, the Imam did produce a book of furū’ī legal opinions based on the methodology of his school of law, possibly as a response to the demand: al-Muwaṭṭa’.
What the ruler al-Manṣūr had wanted was a codified system, a set of fixed statutory regulations which the state could then enforce. Yet the early jurists’ well-earned reputations showed that their restraint and disciplined retreat from the corridors of political power did not make their uncodified schools of law any less successful or authoritative, albeit their madhāhib neither capitulated to the demands of temporal power nor allowed themselves to mutate into a forceful or binding official law of the imperial state.
In that early interaction between the State and the Law, the tension between political power and the custodians of Islam’s Divine Law was already evident.
The following post digs into that tension first by distinguishing between codified and uncodified law as it involves the history of Islamic Jurisprudence. The topic calls for renewed reflection since some historians now hold the view that we cannot simply criticize the reforms that endorsed codification (most notably the Ottoman Tanzimat and later Turkish modernization projects) as simplistic dilutions of our legal tradition because the modern enterprises still permitted complexity and allowed for interpretation by legal scholars.
In any case, this essay takes an altogether different perspective and thereby proposes a new argument. By analyzing the movement from uncodified to codified law (and from Islamic law to modern Western legal reforms) in Muslim majority nations, I argue that that historical trajectory has deteriorated not only the practice of family law but, because of the links between personal status and ḥudūd law that I have found historically in Islam’s legal heritage (detailed in my recent series of research articles), there has been a deterioration in how crime and punishment is applied in Muslim societies as well.
Indeed, it is equally true today that 1) the West and some proponents of international humanitarian law1 view the Sharī‛a as an enemy of human rights—the purveyor of the corporal punishments known as stoning and amputation—and, at the same time, that 2) authoritarian and military-ruled Muslim majority states are coopting Islamic penal law in the service of state violence.2 (The latter is a modern-day anomaly because, as Rudolph Peters notes in Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, the death penalty and bodily punishments known as fixed ḥudūd penalties were rarely applied during Islam’s entire classical period.)3 Thus, since the Western attitude and the Muslim despotic cooptation alike are problems of perception that misunderstand Islamic law as a primarily punitive criminal justice system, what is needed is a study that reveals the links between the actual historical practice of uncodified Islamic law (in terms of the restraint of punitive criminal law and the upliftment of women in family law) and the gradual ascendancy of dehumanizing narratives about it that came to have such unfortunate resonance and endurance.
The Initial Intervention: Marriage and Family Law
From the last post on this thread—the research article
we found that the attitude implicit in Islam’s revealed law on paying mahr/ṣadāq amid negotiation of a marriage contract designated female adult children and wards as individuals with a separate legal identity. On that assumption of women’s voice and agency, the early Muslim mujtahid Imams, Abu Ḥanīfa, Mālik, and al-Shāfi‛ī enshrined procedural remedies to alleviate harm from women as part of theorizing the offer and acceptance necessary to validate the nikāḥ proposal. One such remedy was a vote of protest available in the right to refuse the mahr/ṣadāq if the groom had delayed it—a non-verbal act that expressed disapproval of the offer.
And what was the one potential harm alluded to in such a scenario? An unwanted or perhaps abusive partner. In that way, the founders of Islamic Jurisprudence encouraged male guardians to heed their female children and wards’ inclination to reject an offer. Still, that response could not have been feasible immediately at that historical juncture. Instead, what stood between the ideal of the Sharī‛a conception and practical efforts to change Muslim women’s reality was the negative contemporary attitude prevalent in all ancient cultures: women were considered chattel property.
In particular, the Arabs before Islam had followed the practice of “bride-price”, which defined marriage as the exchange of property between the groom and the bride’s father, who received the dower. Yet, historians have established that the underlying assumption that women were men’s property was true of all ancient societies. In Jewish law, a woman only received a dower on the dissolution of a marriage or death of a husband, and a surviving brother of a deceased man inherited the widow as his wife. In Athenian and Roman law, women were required to give their husbands a dowry or material incentive to marry them. Meanwhile, in Christianity, there was more of an emphasis on Grace than Law to distinguish the religion from its Judaic origins, so while no strict regulations governed marriage, it was likely that local custom (either Hebrew or Greco-Roman) was operative.
Therefore, the early Muslim legal experts first had to contend with existing and limiting social norms. Thus, it was in the domain of Family Law (marriage, inheritance, divorce) that the mujtahid scholars allowed women’s objection to a marriage-offer and, in that way, indicated a woman’s right to try to avert a harmful union. Accordingly, the non-verbal act associated with accepting the gift of mahr/ṣadāq (which, at the same time, uplifted women economically and accorded them social and filial respect) instituted by the Sharī‛a and rigorously developed further by the ‛ulamā’ class became a mechanism by which these male elites could then leverage other non-verbal acts as expressions of rejection, indicating that the founders of Islamic Law worked in support of women’s agency (voice).
Here, we must pause and underscore the fact that Islamic law did not pander to misogyny or conform to an economic logic that would continue to privilege male elites, thereby disadvantaging women and retaining their classification as chattel property. We cannot proceed without acknowledging that this process was a reversal of the trajectory substantiated through the transatlantic slave trade as Suzanne Miers and Igor Kopytoff pointed out in Slavery in Africa: Historical and Anthropological Perspectives.
“In the New World, however, almost all slaves entered the society as the chattels of private persons, acquired for economic ends, and further formal limitations on their mobility were often imposed by society at large on the basis of race”4 [bolding mine]
Yet, if family law was the province of Islamic Jurisprudence that first attempted to mitigate harms to groups subject to exploitation, it was not the full extent of that project. As the second article in this thread,
showed, Imam al-Shāfiʿī’s usūl al-fiqh (legal methodology) negotiated a historical turning-point in articulating a legal defense for women, falsely accused of wrongdoing, who fell into a variety of socio-economic and legal categories. By giving women from all walks of life a self-defense procedure (again, voice and agency), the architects of Islamic law thereby focused on those most vulnerable to exploitation as the standard for constructing legal rules in the domain of criminal and penal law.
As I have previously argued in these research articles, the fact that the five schools of Islamic law (Ḥanafī, Mālikī, Shāfi‛ī, Ḥanbalī, and Shī‛ī) intersected in one historical figure—the illustrious Imam Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820), who traveled widely, and as a result met and learned from the leaders of all other madhāhib (including the Shī‛ī Zaidī school)—means that especially their contradictory positions on women’s issues in family law may have been deliberate, purpose-laden attempts at ensuring that no category of women was at risk of falling through the net of the legal remedies that Islamic law secured. This characteristic flexibility (in service of social and economic relief) was recognized up until the mid-twentieth century. Thus, the underlying assumption must have been recognized as well—namely, that the modus operandi of fiqh was more an interlacing network than a stubborn attachment to one school’s set of legal opinions.
To grasp what that element of flexibility made possible and what the fiqh of family law could accomplish, at its height, in terms of providing women with legal standing as late as the twentieth century, two examples can carry us through the recent historical arc of Islamic personal status law.
The Ottoman Experience
The first interlude represented an official state movement, and it took place in 1916 when the Ottoman Empire issued a decree within the sphere of family law on behalf of women. The decree stipulated that if a husband left his wife without returning and without paying maintenance, she was permitted to initiate a divorce. What made this rule a major break from tradition, on the one hand, is that the Ottomans had, from the start of their empire, chosen Abu Ḥanīfa’s school as their official state madhhab. Further, Ḥanafī doctrine did not allow women to dissolve a marriage through judicial procedure. So, by implementing the 1916 firman, the Empire overturned the standing Ḥanafī authoritative rule and displayed a commitment in favor of giving women caught in a dire situation a legal remedy.
As a result, the enterprise was still a codification (a more unyielding form of law) that established one formerly non-binding legal opinion among many as the fixed and only statutory rule that expressed the state position on the issue. On the other hand, the mechanism, at the same time, still borrowed something from the uncodified past of Islamic personal status and family law. In all prior periods, Ottoman judges had been more open—and were accustomed—to adopting positions from the other, non-Ḥanafī madhāhib to rule in favor of women applicants in family law whenever that measure might alleviate distress. Thus, the criterion of mitigating harm to a disenfranchised population was the criterion and goal that drove both the uncodified and codified applications of law up until 1916 in the Ottoman state.
British Administration of Muslim India
The second example involved a legal case that took place in 1937 under the British rule of Muslim India. For the Muslim populace, state authorities in India had passed a law known as the Muslim Personal Law Shariat Application Act. As a result, this codification, too, like the Ottoman example, lifted specific legal positions out of Abu Ḥanīfa’s fiqh and injected them directly into official state law. In 1937, however, in a trial case involving a wife’s application to terminate her marriage under financial hardship, the British court administering Islamic family law denied the claim of wives applying for dissolution of marriage. According to the reasoning, such a judgment was unavailable because it was not permitted in the Ḥanafī madhhab.
By asserting that the courts would offer no remedies for wives under this new Muslim Marriage Act, the British Empire’s decision offered no judicial relief, thereby worsening the social and economic plight of Muslim women. The ruling drew the ire of Indian Muslim jurists, who objected that it had always been acceptable to adopt Mālikī, Shāfi‛ī, or Ḥanbalī positions to relieve the distress experienced by Muslim wives. However, the British courts would not reverse the decision. By contrast, the significant outcry from the ‛ulamā’ class represented a public recognition that a rigidity had been imposed on Islamic family law from the outside after its own rich and lengthy ethical tradition. As this example discloses, especially outside of Türkiye, the regions of the Muslim populated world that had experienced European colonization after having been satellite provinces of the Ottoman Empire or after having been subject to the predominance of Ḥanafī fiqh, were territories where Muslim lived experience lost relatively more flexibility than their Turkish co-religionists, especially in remaining responsive to the exigencies women faced.
والله أعلم
Thank you for reading, and please check out the next post in the series:
REFERENCES:
Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, Cambridge University Press, 2006.
Lubna A. Alam, ‘Keeping the State Out: The Separation of Law and State in Classical Islamic Law’, Michigan Law Review, 2007, 105(6), pp 1255-1264.
Ann E. Mayer, Islam and Human Rights: Tradition and Politics, 5th Ed, Routledge, 2018.
Dawoud Sudqi El Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, Kluwer Law International, 1996.
Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists, HarperCollins, 2005.
Muḥammad ibn Idrīs al-Shāfi‘ī, The Epistle on Legal Theory, Ed. and Transl. by Joseph E. Lowry, New York University Press, 2013.
Wael B. Hallaq, The Origins and Evolution of Islamic Law, Cambridge University Press, 2005.
Slavery in Africa: Historical and Anthropological Perspectives, Ed. by Suzanne Miers and Igor Kopytoff, University of Wisconsin Press, 1977.
Kristen Stilt, Salma Waheedi, Swathi Gandhavadi Griffin, “The Ambitions of Muslim Family Law Reform”, Harvard Journal of Law & Gender, Vol 41.
Walter Rodney, How Europe Underdeveloped Africa, Verso, 2018.
Jemima Pierre, “Slavery, Anthropological Knowledge, and the Racialization of Africans”, Current Anthropology, Oct 2020, Vol 61, Issue S22.
Ann E. Mayer is one such author who invokes Samuel Huntington’s language of a clash of civilizations to object against the compatibility of Sharīʿa with international rights standards. See Mayer, Islam and Human Rights, 169.
As of this writing, and according to AI, twelve Muslim majority countries officially practice Islamic criminal law and apply the hudud penalties. In addition, many more Muslim populations around the world are calling for their governments to implement rule by Sharīʿa law.
Peters, Crime and Punishment in Islamic Law, 92-93, 100.
Miers and Kopytoff, Slavery in Africa, 40.