An Introduction to Islamic Law (26 page)

By 1871, the Algerian legal class was in disarray, in part because certain of their numbers lost moral authority by cooperating with the French. This coopting was the inevitable byproduct of the French reordering of local political organization, a reordering reminiscent of the Ottoman reconstructive introduction of the
municipal councils. While many of the legists serving on these councils represented the interests of their fellow Muslims, there were others – together with notables and landed aristocracy – who cooperated, or appeared to cooperate, with the French beyond what were seen as appropriate bounds. But the more significant reason for the decline of their status and power had to do with the depletion of the resources that had been at their disposal and that now largely vanished into the hands of the French after the
centralization and large-scale
confiscation of
waqf
s. These transformations in the
habous
system affected not only their economic status but their command of the field of
education, on both the elementary and the law college levels. Like the Ottomans before them, the French acquired an educational monopoly on the production of Muslim legists and
qadi
s. The
madrasa
s of Algiers, Tlemcen and Constantine became the official colleges from which future
qadi
s were to be recruited. But the poor (now centralized) funding of these
madrasa
s, among other factors, contributed to a dramatic lowering of the standards of legal education, and consequently of the quality of
qadi
s and
law professors (a phenomenon that persists in the great majority of today’s Muslim countries)
. Simultaneously, the streamlining of education permitted the French to inject a pro-colonialist reading into the legal training of these men, another phase in the project of “conquering the mind
.” The French judges also began to displace
qadi
s and religious courts, while all litigation pertaining to real property and crime, even when the parties to the litigation were all Muslim, was removed from the purview of Shari
a jurisdiction. The effect of the overall tendency to encroach on the domain of the Shari
a led to a dramatic reduction in the number of Muslim courts in the country, from an already reduced 184 in 1870 to 61 in 1890. By the time Algeria gained its independence in 1962, the Shari
a was reduced to no more than a regime of
family law
.

By 1900, the Shari
a in the vast majority of Muslim lands had been reduced in scope of application to the area of
personal status, including child custody, inheritance, gifts and, to some extent,
waqf
. In the
Malay states and the
Indonesian Archipelago, its sphere was even narrower, partly because of the
adat
which had long prevailed in some of these domains, and partly because of massive
Westernization of its contents and form. The present chapter therefore focuses on personal status, following the fortunes (indeed misfortunes) of Islamic law roughly from the end of World War I until the dawn of the twenty-first century.

The Islamic law of personal status was saved from the death blows dealt to other Shari
a laws (except rituals) by virtue of the fact that it was of no use to the colonial powers as a tool of domination. Even this disinterest was turned into an advantage, however, for colonialist Europe and its academics promoted the idea that the personal law was sacred to Muslims and that, out of sensitivity and respect, colonial powers left it alone. However, once the laws of personal status were
culturally
marked as such, they were taken as the point of reference for the modern politics of identity. If
family law emerged as “the preferential symbol of Islamic identity,”
¹
it did so not only because it was built into Muslim knowledge as an area of a sensitive nature, but also because it represented what was taken to be the last fortress of the Shari
a to survive the ravages of modernization.

While the popular Muslim imagination, even today, appears to hold these remnants of the Shari
a to be an authentic and genuine expression of
traditional family law, the fact of the matter is that even this sphere of law underwent structural and fundamental changes that ultimately resulted in its being severed from both the substance of classical religious law and the methodology by which this law had operated. For to maintain this methodology would have amounted not only to maintaining the linguistic and legal interpretive system, but also the human and institutional bearers of this complex tradition. This, in other words, would have required the maintenance of the very system that produced the entire sociology of legal knowledge, including the institutions of
waqf
and
madrasa
. But we have seen that these otherwise independent institutions stood in the way of the emerging state and its culture, which is to say that they represented an impediment to
centralization, be it fiscal, legal or otherwise. Thus, it was both essential to and an inevitable consequence of the ways of the nation-state that personal status had to be severed from its own, indigenous jural
system
, its own ecological environment, so to speak.

This severance was effected through various devices that included both administrative and interpretive techniques. Attributed to nebulous origins in Islamic tradition and history, these devices were cultivated and augmented to yield results that had never been entertained before. The first of these devices was a concept that has come to be used, often implicitly, to justify any and all change in the law. In traditional Islamic law, one was permitted to avoid harm to oneself even if this entailed a violation of the law, e.g., consuming ritually impure food if one is threatened with starvation. This substantive legal principle, the concept of “
necessity” (
DARURA
), was fundamentally transformed by modern legists in two ways: first, it was transposed from the domain of substantive law (where it regulated relatively few cases) to the realm of
legal theory that in turn came to regulate the construction and operation of
POSITIVE LAW
generally. Second – and partly derivative of the first – the scope of the principle was widened beyond recognition, so that instead of delimiting the boundaries of “necessity” within those of the law, the law in its entirety was (re)defined within utilitarian principles of necessity. The legal principle was thus turned on its head, from being subordinate to the larger imperative of the law to being the dominating and all-encompassing principle.

The second device was procedural, which is to say that, without changing certain parts of Islamic substantive law, it was possible through this device to exclude particular claims from judicial enforcement, thus in effect leaving significant provisions of Islamic law mere ink on dusty paper. For instance, for many decades during the reform period,
child marriage was not explicitly outlawed, but to cancel the effects of this law, the bureaucratic offices – which now in effect possessed the authority to declare what was legal and what was not – were instructed not to register
any contract in which the parties to it had not attained the age of majority. A similar change was effected in the area of
oral testimony and oral evidence, where the courts were instructed not to hear claims lacking documentary or written evidence.

The third device, one of the most effective methods by which new positive law was created from the virtual dispersal-cum-restructuring of Shari
a law, consisted of an eclectic approach that operated on two levels:
TAKHAYYUR
and
TALFIQ
(lit. “selection” and “amalgamation,” respectively). The former involved the adoption as law not only of “weak” and discredited
opinions from the school, but also of opinions held by other schools. The options created by this device seemed boundless, since not only could
Twelver-Shi
i opinions be absorbed by the codes of
Sunni countries, but so also could those of long defunct schools.
Talfiq
involved an even more daring technique. While
takhayyur
required the harvesting of opinions, for a single code, from various schools,
talfiq
amounted to combining elements of one opinion from various quarters within and without the school. In some countries, notably
Egypt and
Iraq, this double-tiered device was used to produce radical changes even in
inheritance law, e.g., making lawful a bequest in favor of an heir (prohibited in
Sunni but not in Shi
i law), with the proviso that the total bulk of the bequeathed property not exceed one-third of the estate. The consent of the other heirs was furthermore no longer required. It may be noted that traditional Islamic law made it forbidden for both the jurists and “state authorities” to resort to such devices.

The fourth device is the so-called
neo-
ijtihad
, an interpretive approach that is largely free of traditional legal interpretation. In a sense, the device of
takhayyur-
cum
-talfiq
rests on this general approach, since the act of combining different, if not divergent, elements of one opinion entails a measure of interpretive freedom
. But there are other examples of a new kind of interpretation, such as limiting the period of pregnancy to one year, a period which some authoritative classical jurists, attempting to keep conceptions out of wedlock within family bounds, had extended at times to up to four years. Another example is the
1956 Tunisian Code of Personal Status which prohibits
polygamy on the grounds that the Quran explicitly predicated the permission to marry up to four wives on the man’s ability to treat them with complete fairness and justice, a requirement that was interpreted by modern law-makers as essentially idealistic and impossible to achieve
.