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The need for Islamic legislation or codification has been apparent since the second half of the nineteenth century. It was begun by the enactment of the Majallah al-Al-Ahkam al-‘Adliyyah in the Ottoman empire as a law of the state along side the Muslim religious law in 1877. Since then, this process has gained momentum respectively as a by-product of the emergence of modernism and the establishment of the nation-state in post-colonial Muslim countries in the mid-twentieth century.
There have been appeals for Islamic law to be implemented in modern societies, i.e islamic legislation. Unfortunately, such Islamic legislation interrupted in many Muslim countries, since they have experienced conflicting relationships between the ideas of Islamic political movements and the state. A number of Islamic legislation and legal reforms and in many Muslim countries have taken place since their independence. However, its jurisdiction has been mostly limited in the area of family law. Consequently, the content of Islamic law as well as its textual formulation has been affected.
This has actually been the case of Turkey Islamic legislation, for example, that places its judicial reforms entirely in the programme of secularization. Morocco also has been conducting its judicial reforms in rather different way which evokes both confrontation and accommodation of fiqh and French modern code. This is an approximation of the situation in which changes and reforms in Islamic law have come into being.
Nevertheless, later many Muslim jurists have come to accept the idea that Islamic law, as it has been detailed in fiqh books, should be positivized and enacted through legislation. So, this is precisely the problem. Islamic law has not been enforced by the state through a codification of the law. Furthermore, any legislation that has focused only on fiqh books has reduced Islamic law to personal or private affairs which has weakened Islam itself.
Because of the basic form and characteristics that the traditional Islamic jurisprudence takes, which Weber states is close to “jurist law”, many aspects of it could not be legislated. In addition, legislation reflects only recent developments in the history of Islamic jurisprudence. For this reason, Joseph Schacht considers this issue the most important manifestation of Islamic modernism. However, he characterizes it as historically problematic. Islamic legislation also entails the changing of structural authority in Islamic law and sacrifices important dimensions of Islamic law and its characteristics. Layish is even more radical in his beliefs, stating such legislation entails profound implications regarding the de-privatization of fuqaha’, specifically their authority in developing Islamic legal norms and the investment in secular legislature. Accordingly, Islamic law is at the crossroads, facing dilemmas of secularization in the context of nation-states in our modern era.
However, the question still remain, why such transformation from fiqh to state law through legislation mean parallel to secularize Islamic law? In what sense really does this sort of secularization take place? Are they common phenomena in all Muslim countries? Can such transformation take a local context of Islamic legal reformism?
There have been appeals for Islamic law to be implemented in modern societies, i.e islamic legislation. Unfortunately, such Islamic legislation interrupted in many Muslim countries, since they have experienced conflicting relationships between the ideas of Islamic political movements and the state. A number of Islamic legislation and legal reforms and in many Muslim countries have taken place since their independence. However, its jurisdiction has been mostly limited in the area of family law. Consequently, the content of Islamic law as well as its textual formulation has been affected.
This has actually been the case of Turkey Islamic legislation, for example, that places its judicial reforms entirely in the programme of secularization. Morocco also has been conducting its judicial reforms in rather different way which evokes both confrontation and accommodation of fiqh and French modern code. This is an approximation of the situation in which changes and reforms in Islamic law have come into being.
Nevertheless, later many Muslim jurists have come to accept the idea that Islamic law, as it has been detailed in fiqh books, should be positivized and enacted through legislation. So, this is precisely the problem. Islamic law has not been enforced by the state through a codification of the law. Furthermore, any legislation that has focused only on fiqh books has reduced Islamic law to personal or private affairs which has weakened Islam itself.
Because of the basic form and characteristics that the traditional Islamic jurisprudence takes, which Weber states is close to “jurist law”, many aspects of it could not be legislated. In addition, legislation reflects only recent developments in the history of Islamic jurisprudence. For this reason, Joseph Schacht considers this issue the most important manifestation of Islamic modernism. However, he characterizes it as historically problematic. Islamic legislation also entails the changing of structural authority in Islamic law and sacrifices important dimensions of Islamic law and its characteristics. Layish is even more radical in his beliefs, stating such legislation entails profound implications regarding the de-privatization of fuqaha’, specifically their authority in developing Islamic legal norms and the investment in secular legislature. Accordingly, Islamic law is at the crossroads, facing dilemmas of secularization in the context of nation-states in our modern era.
However, the question still remain, why such transformation from fiqh to state law through legislation mean parallel to secularize Islamic law? In what sense really does this sort of secularization take place? Are they common phenomena in all Muslim countries? Can such transformation take a local context of Islamic legal reformism?
