Monday, December 12, 2022

Legal Pluralism of Islamic Sharia and Colonial Codification of Indian Muslim Personal Law

By Grace Mubashir, New Age Islam 12 December 2022 ----------------------------------------------------------------------------- Each nation has received different opinions, heard different hadiths, and lived according to what each of them had come to them from different kinds of legal views among the companions of the Prophet and among their descendants. It would not be appropriate to dismiss their views. It is better to let the people act as they act, and let each locality adopt the laws according to the laws it has received, and leave them to their own ways.” ----------------------------------------------------------------------------- "Abbasid caliph Abu Ja'far al-Mansur was asked by the minister and literary genius Ibn al-Muqafah to formulate a civil law code to unify Sharia jurisprudence for administrative transparency. Caliph Mansoor took such an opinion seriously in view of the correctness of administration and decided to convert 'Muwatta' by Ibn Malik into a law book as the most accurately codified Fiqh book of the time. Caliph Mansoor made that request to Imam Malik, the author of the Muwatta, during a Hajj: “I wish to send a copy of this book of yours to every town and instruct them to accept the laws just because of what is in it. You are from Medina. The knowledge of Madinah is authentic”. Rejecting the Caliph's demand, Imam Malik's response was: “Ameer ul Mu'mineen (leader of the believers), you should not do that. Each nation has received different opinions, heard different hadiths, and lived according to what each of them had come to them from different kinds of legal views among the companions of the Prophet and among their descendants. It would not be appropriate to dismiss their views. It is better to let the people act as they act, and let each locality adopt the laws according to the laws it has received, and leave them to their own ways.” Islamic Sharia and Civil Society Imam Malik's interest in rejecting the Caliph's demand to codify and determine the Islamic Sharia in a one-dimensional manner was to stop the power-interest, and in each case the scholars of the respective time and land should determine the solutions for the problems. After that, it was not until the nineteenth century that anyone dared to prepare a unified law book or penal code called 'Islamic Sharia'. Rather, it existed through numerous texts, circumstantial interpretations, served civil society, and pluralized and practiced Islamic jurisprudence in through multiple approaches. The multi-dialectical nature of the Sharia was not compatible with nineteenth-century colonial power interests. The features of decentralized Sharia were not amenable to the colonial administration and they tried to subsume it under their authority. Joseph Shatt , Ignaz Goldsier, and Snook were pioneers in the project. Orientalists and other viceroys of various Muslim lands claimed that the Islamic legal system was imprecise and demanded reform. The most important characteristic of the Sharia was that it was not subordinated to the interests of state power anywhere in history. The rules of Sharia were developed by scholars who acted as independent bodies. But in contrast to that, in European nations, laws existed as an exercise of power by the ruling class. Therefore, law-making systems remained part of the state in the European system of governance. The Sharia was operationalised by being integrated into civil society and influencing every part of their lives. It was therefore in many respects a system that was more closely related to civil society than to the state. Wa'il Hallaq says: “Shariah was not meant to be a problem-solving mechanism. It has greatly influenced all aspects of the society, economic, moral, spiritual and cultural. This is where Sharia differs from the modern legal system. Sharia takes shape and evolves from whatever society it was formed to serve. In that way, ordinary citizens are constantly aware of the legal system and become a constant part of their daily lives. The fuqaha/muftis were constantly imparting legal knowledge to the society.” Colonial Codes and the Open Legal System In Franz Kafka's short story 'Before the Law', the law is presented as inaccessible to the common people and distant from them. The main character in 'The Trial', who does not know what wrong he has been punished for, and the character in 'Before the Law', who has to wait until he dies at the door of the law to know what the law is, have the same problem. However, it arises from the fact that the modern legal system keeps a distance from society. The crisis of law standing apart from society, which Kafka reveals, does not therefore arise in the Sharia, which constantly interacts with society in all its aspects. Shariah was understood as a social and personal relationship between the people and the legal system rather than a tool to rule and control. Sharia was aligned with the legal positivist HLA Hart's observation that 'law is given its legitimacy by its sociality'. Khalid Abul Fadl writes: “The basis of Islamic jurisprudence was the principle that laws should stand for human good, administration of justice, and classification of good and evil. Sharia was based on the (independent) interpretations of the text by scholars, as opposed to the modern secular system based on laws set by the state. They [scholars] maintained that all such interpretations were at the same time different readings, and therefore all of them were correct and any of them could be accepted.” The European legal system existed as 'codes' such as the Dutch National Code, the British Penal Code and the Napoleonic Code. Therefore, all of them were recorded and determined in different books, and they were separated as a separate field from the society by building special buildings for management. But there were no 'special spaces' in Islamic history to enforce Sharia, find legal solutions to problems and air grievances. Sharia rules were discussed in the homes of scholars, the needy, in mosques, in markets, and in royal assemblies. There was no specific text to highlight that 'this is Sharia Law'. Because in Shariah, the book was not important, rather it was the person seeking legal protection and their environment. The modern liberal approach to such an open legal system can be read in the words of an American judge: "We are not Muslim Qadis who sit under a tree and interpret the book in their hand to dictate the law as it seems." Modernity and Sharia: From Ottoman Egypt to Anglo-Muhammadan Law Orientalists and colonial authorities were interested in codifying Islamic laws by proposing to reject the uniqueness of the Islamic Sharia outside the European system. They therefore tried to rewrite the existing Sharia systems in other Muslim countries based on their own system. Thus, the first official codification of Islamic Sharia took place in India under the British Raj. It was creating a hybrid legal system under Governor Warren Hastings. By British Orientalist Sir William Jones under the directive of viceroy, the British company began efforts to make Muslim and Hindu laws into a unified code. To codify Muslim law, texts from the Hanafi Madhhab such as Margini's Hidaya in 1791 were translated by Charles Hamilton , Sirajiyah in 1792, and Fatawa Alamgiriyya in 1865 by Nile Bailey, which formed the 'Anglo Muhammadan Law' in 1860. But in Anglo-Muhammadan Law, the 'Anglo' lock prevailed over the 'Muhammadan' Law. This led to the later colonial Muslim law of 1937, the 'Muslim Personal Law Application Act', which made Sharia exclusively personal/civil law. By the 20th century, the colonial power had completely established the supremacy of the European legal system in the monetary and criminal-penal laws in the Muslim world. Thus, colonialism reduced Sharia to personal laws only. By the 1880s, there was a proposal to codify the Sharia in Egypt, and a group of Qadis and British officials drafted the Muslim Personal Law incorporating the dominant views of the Hanafi madhhab. By the 1930s, the French regime had similarly formulated a Sharia code in Morocco. Similarly, in 1873, the code created by the Dutch administration in Java, incorporating Sharia and local customs, was almost identical to the Dutch National Code. Then, what happened when the Shariah was codified by the colonial authorities in various places was the rejection of the most important features of the Sharia, namely pluralism. The 'Personal Sharia Laws' codified one of many opinions and reduced the painstaking process of 'Iftaa (giving legal opinion) to one that any officer could do by reading a single book. In addition, colonial regimes were able to codify Sharia law under state control. However, that process created many legal, social and religious crises and caused the term Sharia to be misunderstood. According to Mark Fathi Masood, head of the University of California Law School, the rise of religious fundamentalists and the misuse of Sharia is traced to the Sharia system created by the colonial authorities. He observes that bringing Sharia under the authority of the state is exactly what the fundamentalists have done in countries like Iran, Saudi Arabia, Somalia, and Nigeria, which is the reverse and consequence of colonial interest itself. Amira Zahri Sombol explores the point in the current political context. She writes that it was very easy for a woman to get a divorce during the Ottoman period and that the Sharia itself had provisions to implement many possibilities for the good of women. But they observed that in post-colonial Egypt, obtaining a divorce has become a difficult legal process for a woman, and divorce is granted only if it can be proven on the basis of strong evidence or by the husband's own confession that the wife has been subjected to severe torture. While sexually assaulted women were protected and compensated under the early modern Sharia system, they were often punished or euthanized by their families in the post-colonial system. In the same way, Saba Mahmoud states in the book 'Religious Difference in the Secular Age' that the rights of minorities were protected under the Ottoman Sharia system in Egypt, but the modern secular Egyptian system has failed to protect the rights of minorities. The Possibilities of Sharia beyond Foucauldian 'Laws' For Michel Foucault, 'laws are instruments of power'. Law reinforces the relationship of power through all its institutions and materials. He points out that laws are not just certain principles or directives, but an ever-evolving exercise of power. Ibrahim Musa's understanding of colonial codification based on Foucault's arguments is as follows: “The colonial powers secured power not only through military-political-economic power, but also by imposing their legal wisdom on the colonized. The consequence is that even after independence, the colonized are trapped under the legal system of the same colonial powers that oppressed them.” Therefore, it is not possible to formulate and understand Sharia in terms of European legal theories, since Islamic Sharia exists in contrast to the centralized European legal system. As Derrida observes in 'Force of Law: The Mystical Foundation of Authority' with Walter Benjamin in mind, law in the European system has always functioned only for the survival of the 'law/state'. Its primary objective is always, 'its own self-sustainment'. Hence its mission is to 'maintain established authority without crisis'. So, the basis of modern laws is always authority. But since the Shariah, in contrast, essentially aims at 'the moral formation of civil society and the protection of rights', its basic characteristic is 'decentralization of power'. Thus, it never becomes 'absolute' in itself like modern laws. Rather, Islamic Shariah is a decentralized one, constantly in the process of 'becoming', renewing itself and renewing society through dealings with social conditions 'external' to it. ----- A regular columnist for, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist. URL: New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism

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