Shari`ah and State Formation: Historical Perspective

I. INTRODUCTION In the Islamic world, personal status laws concerned with marriage, divorce, child custody, and other issues pertaining to family, stem from the Islamic Shari'ah while other forms of law, lilie criminal or commercial codes, are imported from Europe and, more specifically, from France.1 However, the diffusion of law from one type of legal code to the other, specifically the impact of Western codes on personal status laws in most Islamic countries, receives little recognition. This is problematic for a number of reasons, the most important of which is that as long as the laws guiding gender relations are considered to be based purely on the Shari'ah-regarded as the word of God based on the Qur'an and Prophetic traditions as interpreted by legitimate Muslim clerics-it becomes almost impossible to change them. Deconstructing the genesis of modern personal status and other legal codes in Muslim countries is an essential first step in changing those codes dealing with gender relations, and therefore women's rights, in Muslim countries today. Studying the history of personal status codes currently applied in Muslim countries reveals that these codes are the product of modern state committees' selection and deliberation of nation-state building issues. This explains the significant differences in particular laws and their application in various Muslim countries, notwithstanding the claim that they are Shari~ah laws. Understanding gender issues in religious dogma and looking at the historical role of the Shari'ah could lead to greater freedoms and changes in gender roles and other forms of laws pertaining to governance and citizenship. Since these societies subscribe to discourses that rely on the Shari'ah as the source of family law and gendered conduct, any approach to legal change that does not take the SharTah as a starting point in Muslim societies has little potential for success. Thus, at least as a first stage in the struggle for women's rights, it is important to formulate strategies for success that take the ShariTah into consideration if prospective laws are to have any chance of passing maledominated legislatures and governments while gaining acceptance by the larger population. A starting point is to conceptualize the discourse surrounding Shari^ah not as the stagnant, unchanging, and unchangeable collection of laws that its critics and conservative advocates make it out to be, but rather as a venue for deliberation and designing laws that are preferable for society (istihbab and istihsan). The very lens through which to consider what is preferable for society should in itself provide an important prism for changing laws. What should the primary goal of such deliberative discourse be? Is it the individual good and hence rights that should be the primary goal? Is it the community at large? Or is it what is "preferable to Islam," as advocates of rigid Shari'ah rules insist? The fact that the Shari~ah has not been so rigidly understood in the past, but rather was regarded and applied dynamically in courts provides a basis for looking at the Sharivah as a source of laws for the common good rather than a rigid collection of laws. This flexible conception would enable all members of society to participate dynamically in governance and decision-making. The picture of a restricted Shari'ah that is interpreted and applied by a select few in a narrowly defined way simply does not fit with legal history in different parts of the Islamic world. It is therefore imperative to challenge the perception of a non-changeable Shari'ah. Examining legal practices over time is the best way of doing so in the face of claims of absolute authority by conservative and fundamentalist interpreters of Islamic law. In the following discussion, fiqh (jurisprudence) will be contrasted with practices in SharTah courts in an effort to illustrate the actual role played by fiqh in pre-modern Shari'ah courts. As this Article illustrates, Shari'ah courts played a central role in the life of people and the relations between them. …