Islamic Law and the Challenge of Modernity

Yvonne Yazbeck Haddad and Barbara Freyer Stowasser, eds., Lanham, MD: AltaMira Press, 2004. 264 pages.

This book includes eight articles on various aspects of Islamic law in the modern world, as well as an introduction by the two editors. The articles grew out of a symposium held at Georgetown University in 2001 under the title of “Arab Legal Systems in Transition.” Despite the book’s title, however, it deals exclusively with the Arab world. That said, the articles are generally very interesting and, in some cases, provocative. Wael Hallaq’s article is the most provocative, for he suggests that because the traditional socioeconomic infrastructure that supported the Shari`ah as a social institution in the pre-modern world has vanished in the face of the centralized state, the Shari`ah cannot be restored without revolutionary institutional changes in the Arab state that would, at a minimum, give religious scholars the institutional independence to formulate a legitimate vision of Islamic law.

While there can be little disagreement with Hallaq’s observation that the traditional institutions are gone and will not return, I am not sure why he assumes that the only type of legitimate Islamic law is one formulated by an independent class of jurists. May it not be the case that a centralized state, subject to democratic controls, could formulate positive legislation that conforms in a meaningful sense with the Shari`ah’s principles? After all, legal modernity has generally meant the rise of positive law at the expense of judge-made law, with the former greatly eclipsing the latter in importance and prestige. It is highly improbable that Islamic countries could, even if they wished, escape the need for ever more positive legislation to cope with the unique problems posed by modern social organization.

This alternative – Islamic law in the context of a centralized modern state – is explored by Nathan Brown and Adel Omar Sherif, the latter being a justice of Egypt’s Supreme Constitutional Court. In addition to providing a useful history of experiments with constitutional rule in the Arab world, the authors also consider the role of Islamic law in modern Arab states. Unlike Hallaq, they are relatively optimistic as regards the amount of Shari` ah norms that Arab states have managed to incorporate into their domestic legal systems. Significant attention is paid to the experience of Egypt’s Supreme Constitutional Court and its interpretations of Article 2 of the Egyptian constitution. (Article 2 declares that Islamic law is the source of all legislation in Egypt.)

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