Pragmatism in Islamic Law by Ibrahim Ahmed Fekry;

Author:Ibrahim, Ahmed Fekry;
Language: eng
Format: epub
Publisher: Syracuse University Press
Published: 2016-06-05T16:00:00+00:00

6

Codification and the Arab Spring

Can the Sharī‘a Be Restored?

I HAVE DISCUSSED in the previous chapters the place of pragmatic eclecticism in juristic discourse in both the premodern and the modern periods. This chapter is primarily concerned with the operationalization of pragmatic eclecticism through the partial codification of Islamic law in Egypt in the modern period. I will also discuss the future of Sharī‘a in the context of the attempts to implement further codification of Islamic law in post–Arab Spring Egypt.

It is important here to caution that although I argue for continuity as far as the tools utilized by modern jurists to accommodate modernity, I do not claim that there was always continuity in terms of actual substantive law. As we will see, Oussama Arabi demonstrates that there was a radical transformation in Egypt’s khul‘ law of 2000. Amira Sonbol has also shown ruptures in gender relations owing to the impact of nineteenth-century European gender values. Her discussion of transformation of the legal concept of the wife’s obedience (ṭā‘a) to her husband into the modern institution of “house of obedience” (bayt al-ṭā‘a) in 1920 represented a clear rupture with premodernity. The incarceration of the wife in the “house of obedience” does not have premodern Islamic pedigree.1

In my earlier discussion of legal reforms in the modern period, I noted that there was very little opposition to these reforms within both traditional and modernist circles. Needless to say, the lines between these two orientations to law became blurred because of the efforts of Muḥammad ‘Abduh, Rashīd Riḍā, and Muṣṭafā al-Marāghī, among others. Even the limited traditional opposition to codification that we saw in chapter 5 was not directed at the pragmatic selection of less stringent juristic views per se, but rather at the practice of selecting opinions from outside the four schools, or of depending on the opinions of the Companions over those of later jurists. I also argued in chapter 5 that there was no substantial discursive shift on pragmatic eclecticism in the modern period. By making this argument of continuity, I seek to show that some of the strategies and tools of legal modernization were more local than they are perceived to be. But before delving into legal codification in the twentieth century, a brief word about legal modernity and a discussion of some important legal transformations that took place in the nineteenth century are in order.

Legal Transformations in Nineteenth-Century Egypt

Legal modernity is characterized by three main objectives: the unification of laws across ethnic, religious, and class segments of society; limiting laws to the borders of the nation-state; and achieving “justice,” a notion that was epistemically and historically conditioned by colonialism and the discourses of modernity. In this study, I approach the process of legal modernization with these inherent assumptions about what constitutes legal modernity in the context of the modern nation-state.2 In order to achieve these stated objectives, the new nation-state had to create a written, fixed code. Central to European notions of justice was the creation of an appeal system and a hierarchy within the courts, consisting of defined jurisdictions.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.