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Islamic Law in Contemporary Scholarship

Published online by Cambridge University Press:  09 March 2016

Zouhair Ghazzal*
Affiliation:
Loyola University Chicago

Extract

Despite the importance of law in societal formations, and what looks like a revival in the field of legal studies, Islamic law is still by and large accessible to only a small group of specialists, and thus cannot claim a large audience even within Islamic and Middle (Near) Eastern studies, not to mention the much broader European and American legal scholarship. There are various reasons for such isolation, which are too complex to enumerate in a summary fashion, but which mostly involve the way the scholarship has evolved in the last few decades in Islamic societies, Europe, and North America, and which reflects the nature of Islamic law. First, unlike Roman law and all the continental codes that followed, and unlike the English and American common-law systems, what is commonly referred to as ‘Islamic law’ does not stand out as an organized set of codes, statutes, or even precedents. Instead, the body of Islamic law, which stretches over many centuries, has spawned several schools known as the madha̱hib, so that a modern scholar who needs to look at the legal framework of, say, an institution of the early ‘Abba̱sid period would have to dig hard into the labyrinth of the fiqh manuals only to realize that layers of interpretations follow each opinion, making it unrealistic to limit the ‘law’ to a set of codified norms. Second, modern scholars tend to look skeptically at the large corpus of Islamic law precisely because of its prescriptive nature and its uncertain historical evolution. We have consequently made little progress in assessing the nature of judicial decisionmaking and how the normative values prescribed by jurists affect it. Third, throughout the twentieth century, the majority of Islamic and Middle Eastern societies have adopted a new set of codes, a process that began in the second half of the previous century with Ottoman reforms, and which for the most part were derived from European civil-code systems. Since the implications of this rupture with the past have attracted little attention from scholars, the relevance of the classical legal systems is the biggest issue of concern here: will the transplanted systems utterly eclipse the various Islamic legal schools, or will there be a revival of the legal schools so as to make up for the inadequacies that result from the civil systems? Indeed, a lot needs to be done before more comprehensively elaborated codes are drafted, in particular in such domains as property, contract, and tort, which, under present conditions, seem like a hybrid mixture of Ottoman feudal practices and modern but poorly implemented Western notions.

Type
Essays
Copyright
Copyright © Middle East Studies Association of North America 2000

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References

page 193 note 1 Johansen, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999)Google Scholar.

page 195 note 1 Johansen, Baber, The Islamic Law on Land Tax and Rent: The Peasants’ Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London, 1988).CrossRefGoogle Scholar