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Islamic Law: Problem Areas of Sharī'ah Codification and Harmonisation

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 Koch 1

Thorsten Koch, MA
Postgraduate
University of Wales Trinity Saint David
03 July 2017

Islamic Law: Problem Areas of

‘Sharī’ah’ Codification and Harmonisation

Between legal modernisation and revisionism, Muslim-majority states have, in many cases, introduced
constitutional ‘repugnancy clauses’ which guarantee compatibility with Islamic principles. But constitutions
also formally guarantee democracy, which some see as a Western idea. It has become relatively undisputed in
the Islamic world that state institutions, such as parliaments, enact laws. The question is of what nature. The
historical Ottoman example shows how a Muslim-majority state can secularise law. The Arab Civil Codes,
created by Abdul Razeq Al-Sanhouri, on the other hand, exemplify how Western and Islamic legal elements can
be blended. There is still resistance against the codification of fiqh law into unified systems, not only from
traditionalists, but equally from some who defend the concept of personal piety. At the same time, there are
now tendencies throughout the Islamic world to harmonise common law in accordance with broad sharī’ah,
which may or may not lead to a ‘secular Islamic legislation’. Islamists have been employing sophisticated
strategies to enforce their own versions of harmonising existing legal systems with sharī’ah principles and fiqh
rules.

1) Jurist Resistance against State Influence

Opposition against codified law, in the Islamic world, is linked to opposing political
power. Long-standing resistance against state influence upon Islamic law came from Is-
lamic jurists who propagated a protected status against state rulers, for they saw legal
matters as their exclusive domain1. While Quraishi-Landes states that Muslims "for cen-
turies rejected" a monopole of interpretation on the part of the clergy 2, ‘ulamā (Islamic
scholars) and fuqahā’ (legal scholars) had been relatively autonomous from caliphs, emirs
and sultans in the early Islamic history, bestowed with the right of independent interpre-
tation of scripture3.

1
see Al-Muhairi, 1995, 295-96
2
Quraishi-Landes, 2015, 563-64
3
idem, 550
 Koch 2

Opposition later turned against the influence of former colonisers. Al-Muhairi cites
the ‘ulamā’s criticism of Western-inspired "infringements" of fiqh, stating that legal enact-
ments "severely undermin[e] sharī’ah doctrines", amounting to a "secularisation" of Is-
lamic law4. Constitutions, and even provisions for the sharī’ah within constitutions, are, in
his words, "rejected by the orthodox Sunnī clerics", as "all man-made laws are forbidden"5,
although fiqh rules are essentially human. This is being said, a number of countries, such
as Iran and Saudi Arabia, "impose limitations on the adoption of any treaties [and laws]
that contradict the sharī’ah"6. The traditionalist critique, notwithstanding, is of principal
nature: any "alternative understandings of Islam" are repelled7 8.

Mayer, thus, calls constitutions "illicit" under "orthodox doctrine" 9, but, as men-
tioned, resistance against constitutions on the part of Islamic scholars first arose in the
particular context and framework of anti-colonialism. Activist Shaikh Fazlallah, who is of
some historical importance, did make the accusation that constitutionalists wanted to
"revolutionize" Islamic law10. Modern researchers, however, have identified an eminent
community of moralist jurists whose ideas seemed to match constitutionalism, in that the
system of juristic norms which they stood for "functioned as an abstract social contract",
for instance protecting individual rights against a backdrop of state interference11. More
importantly, constitutions are now relatively undisputed by public opinion in the Islamic
world.

2) State Control or State-Jurist Symbiosis?

In the United Arab Emirates today, courts are to base their rulings upon "federal
codified laws" unless that is impossible and they must, then, refer to local laws and by-
laws12. However, most sharī’ah courts at the end of the 1990s recognized fiqh rules which

4
Al-Muhairi, 1996a, 44
5
226; see Brown & Revkin, 2015, 17
6
Brown & Revkin, 2015, 3
7
idem, 17
8
Tellingly, the reformist Muslim brethren upheld as a "principal slogan": "The Qur’ān is our constitution"
(Peters, 1988, 231).
9
Mayer, 1987, 138
10
ibid
11
Brown & Revkin, 2015, 5
12
Al-Muhairi, 1997, 311
 Koch 3

were in "incongruity" with state-enacted law, writes Al-Muhairi13, defending that the court
judges had "every reason to reject any type of governmental action viewed as violative of
the sovereignty" of Islamic law. States have reacted in various ways. In Turkey, the Ministry
for Religious Affairs, the Diyanet, is under strict state control, and so are supreme Islamic
institutions in many other nations. Against a backdrop of some jurists’ resistance, author-
ities realized that religious institutions "operating outside of the government’s jurisdic-
tion posed a potential challenge to their sovereignty and legitimacy", and subsequently
widened their reach "over the interpretation and application of Islamic law"14.

This is not completely unfamiliar. It is fair to say that, historically, in several in-
stances, the ‘ulamā "have enjoyed symbiotic and mutually beneficial partnerships with
political authorities", contrary to the assumption of their complete independence15. A ca-
liph did have "some discretion to select which of the conflicting rules of juristic opinion"
to apply16, which contributed to the blurring of "‘bifurcation’ between the jurists and the
ruling elite[, but i]t would be far too simplistic ... to think that sharī’ah and politics ever
were or could be separable"17.

3) Warranting Islamic Principles v. Warranting Democracy

Some Muslim-majority countries have introduced ‘repugnancy clauses’ which pro-

hibit laws incompatible with the rules and injunctions of fiqh18. Islamic jurists have been
given "the authority to review or invalidate laws" based on that principle19. Common pro-
visions give sharī’ah the status of either "the", or "a principal source of law": Eighteen of
over twenty countries having adopted "Islam as the official state religion" had by 2015
introduced such a constitutional clause, with some securing "a special area for personal
status law" such as "marriage, divorce, child custody, and inheritance"20.

13
idem, 313
14
Brown & Revkin, 2015, 14
15
idem, 15
16
Hamoudi, 2009, 306
17
Emon, 2012, 75
18
see Brown & Revkin, 2015, 2
19
idem, 3
20
ibid
 Koch 4

There are legal provisions which are adopted from Western ideas, on the other
hand: "Egypt, ... Bahrain, Yemen, Saudi Arabia, and Iran guarantee gender equality", if ap-
plicable under fiqh 21 . Although the 2005 constitution of Iraq names Islam as "a basic
source of legislation" and deserves primacy to Islamic rules, Article 2.1 (b) declares: "No
law can be passed that contradicts the principles of democracy"22. Article 5 says: "The law
is sovereign and the people are the sources of power and its legitimacy."23. The Pakistani
Supreme Court in 1992 decided that amendment which had the purpose of Islamicising
the constitution "shall not prevail over the other articles of the constitution", in line with
a so-called ‘harmonization doctrine’ which stresses that the various parts of that basic law
are interdependent24.

Constitutionalism and democracy have come a long way in many Islamic countries.
From the 1980s onward, intellectuals had become receptive to the idea that tawḥīd (divine
uniticy) "does not necessarily contradict popular sovereignty"25, identifying the Islamic
concept of shūrā (consultation) as the basis for democratic deliberation, with citizens "en-
titled to share or at least challenge the religious authority claimed by their leaders and
elite jurists"26. The respect for shūrā, be it consultation of the wider population or of the
technocratic elite, is increasingly becoming mandatory for state authorities in view of its
role within the theory of Islamic good governance27.

4) Consensus on Legal Enactment

Schacht describes legal modernization in Muslim-majority states as a top-down

process and identifies a cleavage between modernists and traditionalists. In the face of
legal changes, the latter essentially accept "the inevitable, and try to save as much as pos-
sible of the traditional doctrine"28. Al-Muhairi, in a similar mode, explains that sharī’ah as
"divinely ordained" does not depend on codification, thus human legislation "creates a

21
ibid
22
Hirschl, 2010, 39
23
ibid
24
idem, 41
25
Brown & Revkin, 2015, 18
26
ibid
27
idem, 10
28
Schacht, 1960, 118
 Koch 5

conflict"29. Despite this view, Saudi Arabia has adapted its legal system, with statuary law
regulating "trade and commerce, business and banking, labo[u]r and social security, cus-
toms and taxation"30. There is now a consensus among traditionalists that re-implement-
ing fiqh rules should be happening via "the modern nation-state" which has the monopoly
to decide upon, "enforce, and apply" law31. More often than not, this happens through for-
mally democratic institutions. Muslims in Middle Eastern states, including proponents of
Islamisation, have, according to all appearance, accepted the notion that law is "enacted
by government in the form of a statute or a code"32. Al-Muhairi confirms that Islamists
"effectively acknowledge" that legal provisions must be enacted as code by the state33.

5) Ottoman Secular Legislation

Sharī’ah as overarching legal order or underlying legal principles can be set apart
from fiqh, actual Islamic legal rules and jurisprudence, from qānūn, statute law34, and from
siyāsa, state legislation. While sharī’ah is to be placed in the spiritual realm, according to
Zahraa35, fiqh regulates social relations and the cohabitation of people. In the 19th century,
fiqh made a transition from a ‘jurists’ law’ to becoming a set of statutory provisions,
"promulgated by a national-territorial legislature"36. Incidentally, the legal development
of today’s Turkey is still relevant today.

"In many respects, the Ottoman qānūn may be regarded as secular legislation37. Is-
lamic law converged to some extend to the legal systems of the West38. Bälz, in this regard,
emphasises that "there is no contradiction between Islamic law ... and secular law, because
law is always man-made"39. Attempts throughout the 20th century, and more recently, to

29
Al-Muhairi, 1996b, 225
30
Sfeir, 1988, 729
31
Alam, 2007, 1262
32
Mayer, 1987, 152
33
Al-Muhairi, 1997, 311
34
see Krieger, 2004, 1
35
Zahraa, 2000, 189
36
Layish, 2004, 86
37
idem, 88
38
Bedir, 2004, 400
39
Bälz, 2008, 121
 Koch 6

align the modern Islamic law with the demands of Islamist "revivalism have been ineffec-
tive"40. Historically, amid the secular tendency and a borrowing from European legal pro-
visions, family law was generally exempted from secularisation, for "fear of popular re-
sistance"41. Initially, the population continued to apply "various traditional forms of Islam",
so that the "privileged position" of fiqh was not challenged42. During the course of Ottoman
rule, "the process of supplementing the sharī’ah" (i.e. fiqh) with qānūn elements began in
145143. The imperial legal system was "decentralized, diverse and dynamic to cope with
the wide religious, ethnic and cultural diversity of the population"44. One can, besides fiqh,
identify qānūn including "customary law as well as law of ‘minority communities’"45.

Ottoman fiscal law can be traced back to a compromise, formulated by Grand Muftī
Ebuussuud in the 16th century CE, between Ottoman land law and the fiqh-derived con-
cept of waqf (endowment)46. Ceremonial and feudal legislation were under the sole "ju-
ristiction of the sultans" at the time47. Later on, in the 19th century, during the tanzimat
period, Ahmed Cevdet Pasa, an Ottoman minister, turned to jurists who confirmed the
compatibility and complementary nature of secular courts and Islamic law 48. Since at-
tempts to codify law on the foundation of Islamic law, customs and practice were too time-
consuming, it was decided to adopt a Western system of law49, which turned out to be the
French code, which was, from the 1850s to the 1860s onward, valid in the realms of com-
mercial and penal law50. By 1876, however, the authorities had completed a European-
style codification of the fiqh law of obligations, the majalla (mecelle)51. Qānūn and mecelle
laws were considered "additional" to fiqh52. Secular Nizamiya courts first applied those of
the secular legal provisions which were outside of fiqh to the so-called sharī’ah courts53.
Their judges tried to apply rulings of Ḥanafī jurists which best reflected modern life54.

40
ibid
41
Kamali, 2007, 419
42
Mayer, 1987, 128-29
43
Glidewell Nadolski, 1977, 518
44
Turner, 2011, 153, citing An-Na’im, 2008
45
ibid
46
Glidewell Nadolski, 1977, 520-21
47
idem, 520
48
idem, 523; Bedir, 2004, 385
49
Glidewell Nadolski, 1977, 527
50
Bonderman, 1968, 1177; see Anderson, 1949, 19
51
ibid
52
Anderson, 1949, 19; see Al-Muhairi, 1996a, 36-37
53
Shahar, 2008, 129; see Schacht, 1959, 134-35
54
Anderson, 1949, 20
 Koch 7

"[I]n 1883, the Native Courts were instituted ... and the sharī’ah courts were hence-
forth confined to matters of marriage, divorce, parentage, guardianship, maintenance and
succession" 55 . As a concession, the penal code was officially declared an extension of
sharī’ah (i.e. fiqh) rules, however insertions were made rendering the application of the
death penalty dependent on the confirmation of the muftī, and confirming the alternative
payment of blood money to avoid execution56. The result of the legal reforms "was more
in line with contemporary European codes than with traditional fiqh"57. A second phase
of legal change came in the form of legislative modifications to Islamic law, which began
"with the Ottoman Family Law of 1917"58, which allowed for the dissolution of marriage
contracts for reasons of ill-treatment59.

In 1926, modern Turkey, in a wide-ranging change, replaced the Ottoman Family

Law, which had defined "domestic relations, inheritance, charitable or religious endow-
ments, and other personal status matters closely associated with the religious and social
mores of the people", with the Swiss civil code60. However, what Turkish leader Atatürk
had abolished was not fiqh in the narrow sense but "the legal codes that had been derived
from it in the tanzimat period"61. Glidewell Nadolski describes Turkey’s shift from Otto-
man law to the Swiss civil code as "radical" and "revolutionary"62. The ruling Kemalists,
according to Turner, attempted to restrict Islamic belief to the private sphere, banning Sufi
orders, training imams in state schools, and setting up the state authority for religious
affairs, Diyanet63. A conflict between secularists and traditionalist citizens arose64. A com-
mission came to the following conclusion: family laws and land laws were the most con-
tentious issues65, whereas the issue of "equality of shares" in heritance between male and
female family members was seemingly acceptable to the people66. Of course, such findings
depend on the cultural specificities of a particular country and cannot be generalised.

55
ibid
56
ibid
57
Bedir, 2004, 389
58
Schacht, 1959, 134-35
59
Anderson, 1949, 20
60
Sfeir, 1988, 7499
61
Bedir, 2004, 390
62
Glidewell Nadolski, 1977, 528
63
Turner, 2011, 153
64
see Toktas & O’Neil, 2015, 30
65
Glidewell Nadolski, 1977, 529
66
idem, 531
 Koch 8

From the age of empire to modern times, Turkey went through the phases of "(1)
supplementation, (2) reform (tanzimat and the mecelle), (3) change (abrogation of the ca-
pitulatory system), (4) complete secular change in civil law (adoption of the Swiss civil
code)"67, and is facing a possible re-Islamification. In contemporary Turkey, "fault lines
still exist between the sacred and secular"68. Current legal provisions in place have "not
fully displaced ... the public’s commitment to aspects of Islamic law"69. In many instances
in Turkey, people follow a "new hybrid rule system" amalgamating custom, fiqh and official
law – holding civil and religious weddings, for instance70.

6) Sanhouri’s Arab Civil Codes

Egypt started adopting Western legal code beginning in 1875, enacting French civil
law provisions and setting up mixed courts, followed by the establishment of national
courts71. Albeit, so-called sharī’ah courts were responsible for matters of personal status,
inheritance, and religious endowments, and traditional fiqh continued to hold a dominant
position72. The elites were long divided between upholding nominally sharī’ah-derived
law and the introduction of Western law73. Jurist Abdul Razeq Al-Sanhouri drew up a com-
promise, namely the maintenance of fiqh law "only if ... in accordance with the require-
ments of a modern state". Merely "elements subject to abuse" came to be reformed 74 .
Hence, 80 per cent of the civil code of 1949 was based on custom and fiqh law within the
former "civil code and on judicial precedents of the Egyptian civil courts" 75. Albeit, some
scholars argue that it closely resembled the Napoleonic code, with visible "disjunctions
between French law" and Islamic property law76. Resistance towards the French elements
of the Civil code ceased, but resurfaced in the 1930s when the Muslim Brotherhood

67
Glidewell Nadolski, 1977, 517
68
Toktas & O’Neil, 2015, 37
69
Toktas & O’Neil, 2015, 29
70
idem, 30
71
Al-Muhairi, 1996a, 37; Al-Ahram Weekly, 2013, 1
72
ibid; Peters, 1988, 231
73
Shaham, 2011, 289
74
Powell, 2010-12, 336
75
Shaham, 2011, 289
76
Hegel-Cantarella, 2011, 97-98
 Koch 9

emerged77. Despite the predominance of fiqh elements, the system was "too secular in the
eyes of the proponents of Islami[s]ation"78.

In practice, when an Egyptian judge is unable to find a provision in the civil code,
he must turn to Ḥanafī volumes79 and ‘urf, customary law. According to scholar Ahmad
Sayf al-Islam, these are ‘grey areas’80. Besides, the Egyptian Appeals Court does interpret
not French law literally, but rather bends it in line with tradition to make it compatible
with the "different schools of thought81. This does not solve issues of incongruence in the
codified law, however. Hence, as "part of Islami[s]ation program[me]s, countries have ini-
tiated extensive reviews of existing legislation to identify areas where the secular law con-
flicts with the" broad sharī’ah principles82. But, on the bottom line, a "legal historian ... who
examines the output of official Islami[s]ation programs must have doubts whether many
Islami[s]ation measures can be accurately said to be making the law more Islamic or more
religious"83. Islamist parties and movements are political entities, after all.

Sanhouri drew up reformed legal codes for a number of other Arab countries in the
mid-20th century, including Iraq, Libya and Kuwait84. His premise was that "Islamic law ...
could not be reintroduced in its totality, or applied without strong adaptation to the needs
of modern Islamic societies85. This kind of syntheses with traditional code incorporated
into "modern state law" bore much potential86. Schacht writes that statutory law in Egypt,
Iraq, and Syria (inspired by the former) had "taken on a family-likeness" to the extent that
Sanhouri "could speak of ‘the Arab Civil Code’"87. Egypt and Syria adopted new civil codes
in 1949; in 1951, the Law of Family Rights was introduced in Jordan; The Syrian Code of
Personal Status was enacted in 1953, and Tunisia (1957), Morocco (1958), Iraq (1959 and
1963) followed in passing personal status legislation88.

77
Shaham, 2011, 289
78
Mayer, 1987, 150
79
Sayf al-Islam & El-Gawhary, 1995, 26
80
ibid
81
ibid
82
Mayer, 1987, 163
83
idem, 150
84
An-Naim, 2010, 20
85
ibid
86
idem, 4
87
Schacht, 1960, 122
88
Bonderman, 1968, 1182
 Koch 10

7) The Cases of the UAE and Malaysia

The 1985 Civil Code of the United Arab Emirates (UAE) "is firmly based on sharī’ah
principles"89 "and the French legal system", superseding a range of common law systems
"in the area of criminal law"90. However, with regard to ribā (bank interest), the supreme
court left the decision of whether to permit it to the legislature91. Twelve Northern Nige-
rian states restored fiqh criminal law in 199992, whereas, in the decades after Nigerian
independence, only personal status had remained subject to fiqh93 94.

The mixed legal framework of Malaysia is unique95, with common law and fiqh el-
ements, "tribal codes and human rights legislation"96. Jurisdiction is also separated be-
tween Islamic law, applied by the sharī’ah courts in matters of family and inheritance, and
civil courts whose responsibility extends to Islamic banking97. However, much of the "civil
and statutory laws ... are in harmony with the sharī’ah"98, and the autonomy of the sharī’ah
courts is safeguarded by a list of competencies from "marriage, custody, inheritance, apos-
tasy" to the issue of "conversion to and from Islam"99.

8) Sharī’ah-Mindedness

Emon states that any attempt towards fixed codification, reduces "Islamic law to a
set of positivist legal assertions divorced from the historical, institutional, and jurispru-
dential context"100, or, as Hamoudi puts it, "from lengthy and extensive rules in virtually
all areas of law into a series of limited prohibitions and grants of permission"101. Quraishi-

89
Ballantyne, 1986, 245
90
Al-Muhairi, 1996c, 356, 288
91
idem, 1996b, 244
92
Lawan, 2014, 303, 327
93
idem, 307
94
On the other hand, Qatar possesses a dual system where civil and sharī’ah courts are sharply
independent from each other (Turner, 2011, 145).
95
Hasan, 2007, 1
96
Turner, 2011, 141
97
Hasan, 2007, 1
98
Kamali, 2007, 395-96
99
Hirschl, 2010, 40
100
Emon, 2012, 66
101
Hamoudi, 2009, 329
 Koch 11

Landes sees an impossibility to ‘enact’ God’s law – the "most one could do, would be to
select [one’s] preferred fiqh", which, in turn cannot "claim with certainty to be the correct
understanding"102. The same broad sharī’ah principle can be interpreted in diverse ways,
in the form of a fiqh rule or verdict. Thus, social justice is seen by some as the command-
ment of the zakah (almsgiving tax) to provide some aid for the poor, others argue that "the
rich must be exhorted to part with some of their riches"103. The concept of shūrā (consul-
tation) is being regarded in similarly divergent ways104. For Quraishi-Landes, sharī’ah is
hence an overarching "rule of law, not a mere collection of rules"105 106. This is exemplified
by the existence of state legislation, or siyāsa, which has existed in parallel to "fiqh rules
extrapolated from scripture"107.

Joseph Schacht argues that the broad sharī’ah is a concept and methodology 108
which to bring into uniformity means distorting it 109 110 . Islamisation "has collapsed
sharī’ah into just fiqh", Quraishi-Landes deplores111. Calling fiqh rules ‘sharī’ah’ therefore
constitutes a political manipulation, divinifying "fallible human interpretations", which
the advocates of Islamisation fail to mention, all too often112. Instead of ‘sharī’ah’, Islamists
insert "selected fiqh rules into monist nation-state structures that have exclusive control
over all law", rendering these states theocratic and disrespecting legal diversity113. It must
be added that historical Islamic law consists of manifold components which cannot all be
traced back to the revealed and divinely sanctioned sources, contrary to claims and com-
mon belief.

Sharī’ah can be regarded as an expression of ‘personal piety’, everyday practices of

virtue, leading from "pietisation" in revivalist majority-Muslim contexts to "sharī’ah-

102
Quraishi-Landes, 2015, 555
103
Peters, 1988, 244
104
ibid
105
Quraishi-Landes, 2015, 563-64
106
As little of the divine will is explicit, and the core of Islamic law is fiqh, sharī’ah must be considered a
utopian ideal an Islamic community can strive for be never reach.
107
idem, 545-46
108
The methodologiy is actually fiqh.
109
Hamoudi, 2009, 305
110
In practice, sharī’ah application and implementation must be subsumed under fiqh.
111
Quraishi-Landes, 2015, 262
112
ibid
113
idem, 563-64
 Koch 12

i[s]ation"114. An’Na’im agrees that sharī’ah "plays a fundamental role in shaping ... ethical
norms and values", however he considers that the enactment of specific parts of fiqh and
siyāsa can solely be channelled through "the democratic political process"115. He supports
balancing the "personal and private domain" with the public domain through a regulation
"of religion in politics". "As a Muslim", he says, "I need a secular state in order to live in
accordance with sharī’ah out of my own genuine conviction and free choice"116. Secular-
ism, then, will allow for a mediation "among different communities", for as long as it "safe-
guards ... constitutionalism, human rights, and citizenship"117. In this sense, Sparr asks
how Islamic law can be reformed "while retaining the moral principles of sharī’ah" and
how citizenship can be lived out as a common "identity marker, as opposed to religion,
culture, or ethnicity"118. In the West, among Muslim communities, such are mainstream
views.

Many Muslims in Islamic countries are sympathetic of both "Western values, laws
and institutions" and preserving "Islam with its own traditional values, law, and institu-
tions" 119 . Youssef sees a solution for this blended allegiance in a "moderate form of
sharī’ah law … in a dual ... or ... a completely secular system where sharī’ah ... influences
local custom"120. Rutherford hence holds it likely that there will, in the near future, be ex-
change between proponents "of liberal constitutionalism and Islamic constitutionalism",
bringing about "a distinctive form of democracy that resembles Western democracy in in-
stitutional terms but differs with regard to the purpose of the state, the role of the individ-
ual in politics and society, and the character and function of law"121.

114
Turner, 2011, 149, referring to Hodgson
115
An’Na’im, 2008, 1
116
idem, 268
117
idem, 276-77
118
Sparr, 2014, 37, 41
119
Al-Muhairi, 1996b, 225-26
120
Youssef, 2013, 5
121
Rutherford, 2006, 731
 Koch 13

9) Harmonisation Strategies

Harmonisation is a positively connotated term. In Islamic legal struggles, it is being

instrumentalised. Formally, there are set tools to achieve legal coherence, essentially com-
prising of takhayyur (selection) and ta’līq (combination), "with a view to harmonizing
them into ... unified formulas"122. Proponents of harmonisation have, for the most part and
for strategic reasions, projected to harmonise only "certain reasonable differentials in se-
lected area of the sharī’ah and common law"123. Advocates of legal Islamisation have taken
a similar position, largely following the strategy of gradualism. Thus, Khan contends: "The
prospects for Muslims to achieve state recognisance of Islamic law in Western countries
would be bolstered if they focussed on establishing religious arbitration boards to hear
commercial disputes before seeking to expand such tribunals’ jurisdiction into more sen-
sitive fields"124. This would, in the end, strengthen sharī’ah courts and their political influ-
ence, ultimately reinforcing fiqh law. Another approach would be to generally emphasise
legislative projects which are "in harmony with the sharī’ah"125. Conversely, as a gesture
of the traditionalists’ or Islamists’ good will, when it comes to legal decisions, a judge
"should strive to ensure that his ijtihad [(independent legal reasoning)] is in harmony with
statutory law"126 which is in place, even if it still includes Western elements.

While the discussion on harmonisation is gathering momentum, there are tenden-

cies of international madhhab convergence, merging the different Islamic schools of law,
which would likely bolster the Salafī, revisionist position of Islamisation. Madhhab con-
vergence is not a new tendency: in the Ottoman Empire, jurists at times applied both tra-
ditional Ḥanafī and Hanbalī opinion on divorce in case of disease, just to name an exam-
ple127. In modern times, the Muslim Brethren also called for an application of rules deriv-
ing from more than "one single madhhab"128.

122
Kamali, 2007, 391
123
Hasan, 2007, 4
124
Khan, 2006, 801
125
Kamali, 2007, 420
126
ibid
127
Bonderman, 1968, 1181
128
Peters, 1988, 231
 Koch 14

Harmonisation is also pursued by moderate and modernist forces, but the general
question arises whether the legal systems of the broad sharī’ah and common law can be
harmonized in an acceptable manner, in a sense that common law principles "not contrary
to Islamic law" can be introduced or maintained129. For instance, due to the prohibition of
ribā, there is separation between conventional banking and Islamic banking130. Schacht
(1960, 120) makes the fundamental observation that "[m]odernist Islamic jurisprudence
and legislation, in order to be sound and permanent, is in need of a more solid and con-
sistent theoretical basis". That still rings true today. In theory, harmonisation and even
convergence is possible, as fiqh is, to some extent, "capable of adaptation"131. Then, there
are the underlying, basic principles of sharī’ah132, which can be used to provide a founda-
tion to modern law in efforts towards ‘secular Islamic legislation’133. Since the field of fiqh
legal interpretations is vast, however, a codification forcibly entails simplification.

10) A Brief Outlook

According to Sparr, fiqh is "human and not divine" and thus "always serves a
political purpose"134. The law being politicised, will there be an all-out tendency towards
a nationalisation of fiqh provisions?135 In the UAE, traditional fiqh laws can be applied by
sharī’ah courts due to a "degree of commitment [of the government] to traditionalism",
however a "return to sharī’ah and its diverse doctrines is [deemed] impossible", and
modernisation of the already encoded fiqh rules "desperately needed", according to
experts – however not throughout, as this would mean countering mainstream UAE
culture 136 which is opposed to a complete overhaul of the law. More generally, while
Islamic nations apply diverse concepts of Islamic law "from the completely secular [to a]
theocracy", Halmo 137 assesses that "typically", states "seek to strike a constitutional
balance between" fiqh and "other governing law", as the cases of Iraq and Egypt illustrate.

129
Hasan, 2007, 2-3
130
Kamali, 2007, 399
131
idem, 395
132
The safeguarding of religion, life, intellect, offspring, and property.
133
Schacht, 1960, 120
134
Sparr, 2014, 42
135
Layish, 2004, 109
136
Al-Muhairi, 1997, 328-29
137
Halmo, 2013, 3
 Koch 15

Egypt’s new constitution sees fiqh, so-called sharī’ah law, as "the main source of
legislation", however recognising "the civil law system that has been applied in Egypt since
1875"138, and the country, which continues to be under authoritarian rule, is not the most
peculiar of examples in the Islamic world.

Bälz sees the hybridisation of Islamic "with Western legal thought" as productive
throughout, in countries from North Africa to South Asia starting in the 19th century,
having "triggered a process of reform"139, with manifestations such as laws, constitutions,
‘Islamic human rights’, and hedge funds modelled after Islamic principles140. But despite
the apparent benefits, since there are instances of re-Islamisation in Muslim-majority
countries, a long-ranging prediction turns out to be problematic. Already, non-Islamic
legal terms and tools are being rejected by some revisionists, for symbolic and ideological
reasons.

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