This paper attempts to highlight the influence of western Colonialism and Secularization on the application of Islamic law in most Muslim countries in the nineteenth century. Before discussing the issues related to the impact of Western colonialism on the application of the Shari’ah law in some Muslim countries, the first part of this discussion will highlight the position of the Shari’ah in pre-colonial period in which the Shari’ah has been considered the core and the essence of Islamic civilization, and thus a key component in the fabric of Islamic thought. The second part will focus on the position of the Shari’ah law after the expansion of Islam in the vast regions of the Muslim world extending from Spain to central Asia. Throughout its long history, Islam has encountered many civilizations such as those of Greece, Persia, India and Byzantium, whose precepts were alien to the ethos of Islam.
The Shari’ah law was continued to retain its vigor and continued to prosper in the early years of its history with the formation of the four major schools of law. However the latest encounter of the Muslim particularly the Ottoman Empire, with western civilization of the eighteenth and nineteenth centuries ended up with their weakness and the adoption of the Western law. Before conclusion, the last part of discussion will be focused on the impact of colonialism and secularization on the application of Shari’ah law in the Muslim world in general and
Shari’ah Law in Pre-Colonial Era
Before the expansion of colonial empires of the European nations in the nineteenth century, the Muslim world was characterized by the predominant role of Islam and local customs. With the spread of Islam and the expansion of Muslim territories, Islamic law became the law of the land in vast regions extending from Spain to central Asia.1 As late as the seventeenth century, Islamic law was in force in the Indian sub-continent under the Monghuls. Its influence extended to lands which had never been subject to the political denomination of the Arabs even at the greatest expansion of their empire, such as Indonesia and certain parts of Africa. In expression used by David Bonderman, “this traditional ‘Muslim law’ has spread from modest beginning in Arabia to mix with divergent local and customary law from Morocco to Malaysia and from Central Africa to Eastern Europe and Turkistan, forming ‘Muslim’ Legal systems that very from place to place.”2
It had been claimed that for many parts of the Muslim world, Islamic law remained to have been, uninterruptedly and exclusively, the law of the land until the mid-nineteenth century, when it has to give way to Western type of codifications in many areas of the law.3 In view of such wide spread application of Islamic law which extended far beyond the confines of its original birth place and enduring in time, it is, therefore, amounted to be one of the major world legal systems beside Roman law and Common law.4 The Shari’ah law is thus considered to be among the most important written laws which followed in varying rites, and in varying degrees of accommodation with customary law from Morocco to Indonesia.5 The adoption of Islamic law as part of the law of the land is identifiable through the application of different schools of law in various territories of the Muslim communities.
The Hanafi school of law is followed by overwhelming majority of the Muslims Afghanistan, India subcontinent, and by the majority of the Muslims in China. In Arab countries, it is well presented in Iraq and Syria. It further became the favorite school of the Turks both in Central Asia and particularly in the Ottoman Empire; a part from Turkey proper, The Turkish Muslims in the Balkan countries, Cyprus, Rhodes and others are all Hanafis. This school of law had also gained minority followers in Jordan, Egypt, the Anglo-Egyptian Sudan, Libya, and among the Muslim population of Israel.6
The Maliki School had gained dominant followers in Egypt. It spread over particularly the whole of Muslim Africa: Upper Egypt, the Anglo-Egyptian Sudan, Libya, Tunisia, Algeria, Morocco and others. The Shafi’i School had gained its followers in lower Egypt, in the Hijaz ( including Mecca ), and in parts of South Arabia ( Aden, Hadramaut, and parts of Yaman ). It is further well represented in parts of Eritrea and Somaliland, and prevails among Muslims in Tanganyika and Kenya. There are also Shafi’is in some districts of Central Asia, and on the Malabar and Coromandell Coasts of India. Finally, the Shafi’i school is followed by the overwhelming majority of the Muslims in Indonesia and Malaya (Malaysia) and the rest of the British East Indies, by Muslims in Siam ( Thailand ), Indo-China, and the Philippines ( Sulu ).7
The Hanbali school had gained its foothold in many parts of Islamic world, including Persia ( before some of them became Shi’i’s followers ). Its adherents were numerous in Syria and Palestine, Hijaz and in the adjoining principalities of Gulf. This school has been officially recognized in Saudi Arabia, and the inhabitants of Najd are practically all Hanbalis.8 In view of its wide spread adherents, Islamic law is still amounted to be one of the great legal systems of the modern world, dealing with human affairs of a total Muslim population in various countries, and in fact, many states with the Muslim population continue to affirm in their laws, and often in their constitution and their adherence to the principles of Islam. By virtue of the spread of Islam, the Muslim world was bound together by belief, the acts of worship such as prayer, pilgrimage to Mecca, by literary and artistic expression, law, education and political ideas and institutions.
Islamic legal theory of the classical schools of jurisprudence regarded Islamic law as immutable religious law. Man could interpret and explain the law, but he could not himself legislate. Nevertheless, the requirements of daily life and expanding culture necessitated adaptation of legal rules to new situations. In this situation the Muslim jurists not only based their legal judgment on the Qur’an and the Sunnah, but they also sometimes referred to the other two main sources, namely consensus ( ijma' ) and analogical reasoning ( qiyas ). As such, Islamic law is rather a system of rules, hierarchical in degree, supported by the science of jurisprudence which guided the individual reasoning in reaching the Islamic solution for the new problems. The development of the science of jurisprudence ( ‘ilm usul al-fiqh ) is a peculiar characteristic of Islamic law.9 By applying the Islamic legal methodology( ‘usul al-fiqh ), Islamic law was capable of developing and flourishing throughout the Muslim caliphate without the use of one Roman or Greek term or institution.10
Throughout its long history, Islam has encountered many civilizations, such as those of Greece, Persia, India and Byzantium, whose precepts were alien to the ethos of Islam. Each time, however, as a result of those encounters, Islam had successfully assimilated various aspects of those civilizations, producing higher forms of culture.11 The best illustration that can be referred to is the case of Muslims’ encounter with Greek civilization, as a result of which there came about the Golden Age of Islamic philosophy and science. Muslim intellectual heritage of this period reached such a remarkable success which considered to have contributed to the reintroduction of Aristotelian philosophy into pre-Renaissance Europe, and to have laid the foundation for the blooming of scientific knowledge in the West. Similarly from the encounters of the Muslims with Indian and Chinese civilizations, there came about the important heritage of Islamic medicine and many form of technology, as well as the magnificence of Islamic art and architecture.12
This phenomenon was due largely to the force of Islam; the Muslims were exalted by a new faith which generated the spirit of constant dedication, universalism, tolerance and open-mindedness towards other cultures. Although the Arabs (the Muslims) assimilated much of the civilization which they found in the Mediterranean countries, they were not Romanized, rather the conquered countries embraced Islam.13 Seyyed Hussein Nasr has attributed the success of Islam to the primordial character of its revelation, and its confidence that it was expressing the Truth at the heart of all revelations, permitted Islam to absorb ideas from many sources, historically alien yet inwardly related to it. This was especially true in regard to the science of nature, because of the ancient cosmological science-Greek, as well as Chaldean, Persian, Indian, and Chinese- had sought to express the unity of nature and were therefore in conformity with the spirit of Islam.
The Muslim united these sciences into a new corpus, which was to grow over the centuries and become part of the Islamic civilization, integrated into the basic structure derived from the Revelation itself.16 Furthermore, the success lies in the confidence which resulted in the formation of the Islamic institutions as well as the intellectual activity of the religious scholars. From its inception, Islam enjoyed a history of success, victory and glory. The Muslim political and military victories had guaranteed an environment most conducive to cultural synthesis, one from which a grand civilization was born.14
Islam reached its maximum extent when it was the seat of three great empires: the Ottoman ( 1517-1918 ) in the Eastern Mediterranean; the Safavid ( 1501-1722 ) from Iraq northeastward into the highlands of Central Asia; and the Mongul Empire ( 1526-1857 ) in the Northern India.15 Although “ Islamdom” and the institution of caliphate in the Medieval era had decayed from within, Islamic society for a while under these three smaller empires continued to prosper and maintained their image in its early years of history. The introduction of foreign law into the Middle East, as Enid Hill observes, occurred at different times and under varying circumstances. “Reception” of foreign law has meant everything from a colonial power’s imposition of its law upon its colony to the voluntary adoption of a foreign civil code. Some countries adopted the laws of other countries in form, but not in substance; other countries, like Egypt, have received their law from one foreign power while being occupied by another.16