Friday, April 9, 2010

Usurpation Of Islam And Syariah

Islamic law was first confronted with codification at the advent of the nineteenth century during the period of the Ottoman Empire. Then, faced with political, commercial and cultural incursions of the West, the Muslim world was inundated with the modernizing effects of Europe. Associated with such modernizing effects were extensive programs of political and administrative restructuring, of which codification was a convenient means to achieve the desired administrative and bureaucratic efficiencies within the Islamic empire.

The increasing contact between the Islamic and European civilizations saw two main forms of statutory codification. The first form of codification was the reception of virtually complete codes from Europe, evident from the Tanzimat reforms – these codes would have no traces of the Syariah. The second form of codification was statutory codification along Western patterns of various domains of the Syariah. Examples include the Majalla and the later codes on personal and family law. This development subjected Syariah to being “compared, translated and re-described” through codified statues. It is submitted that codification based on the “prototype” classification of the laws of Europe effected such fundamental changes to traditional Islamic legal doctrine and Islamic ideological infrastructure that what emerged thereafter is a mere veneer of Islamic law. This move reduced the richness and flexibility in the interpretation of Syariah and the open-system exercised prior to codification – perhaps as an act of “familiarization” in reducing the vast unknowns to smaller, digestible legal concepts that can be grasped (legislated, and hence controlled) by political agendas.

More of a doctrine and method rather than a code, the act of enactment is in itself antithetical to traditional Islamic law. The codified Syariah draws its authority from the power of the State and its value ascribed by the legislature, and not through its connection with God. Importantly, codification resulted in the unofficial adoption of a single strand of doctrine, representing a synthesis of the variant doctrines of the different schools (madhhab) especially in the field of family law. The principle underlying codification was that the political authority has the power, in the interest of uniformity as opposed to truth, to select one rule from among equally authoritative variants, and through legislative means, for the courts to apply that rule.

With codification of Syariah principles, standards of behavior that were regarded as imposing only a moral obligation upon the individual conscience have now been transformed into positive legal requirements. Codification enabled its substance to be more accessible to a judiciary that was not trained in the particular skills and expertise required to ascertain the law from the labyrinth of Arabic legal manuals. This led to an evolving system of legal education in Islamic law – enabling Syariah to conform to the standards of which the general “European” law (civil, commercial and criminal laws) was expressed in codes, in the procedures and techniques of the courts through which it was applied, and in the methods of its legal education. This resulted in Syariah becoming externally divorced from religion, not in the sense that it ceased to have any categorical religious significance, but in the sense that it lost its traditionally close and exclusive association with religious personages and institutions and became instead the province of the professional lawyer and the judiciary. The mechanism of hermeneutic interpretation, the backbone of Islamic law, ceased to operate.

There is no doubt in my mind that there is no such thing as an Islamic nation/republic within the past two centuries, despite claims by Pakistan, Iran or Saudi Arabia. All of these "Islamic" nation-states operate under a prototypical political, religious, legal (to name but a few) model of a certain construct for a certain political aim. With codification, Islam and Syariah have been usurped to fulfill other objectives of social and political re-engineering apart from that of pursuing faith. The devastating result leads to these two significant realities: (a) Islam and Syariah, now being a matter of persuasion and not of truth, is interpreted and born out of contestation within the juridical courtrooms and political hanglings in the legislature; and (b) this dogmatic product gives birth to a counter-reactionary movement outside the institutional infrastructure of re-interpreting political Syariah, as clearly evidenced by groups such as the Muslim Brotherhood and/or personages such as Osama bin Laden.


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