The Contribution of the Modernists to the Secularization of Islamic Law Author(s): Aharon Layish Source: Middle Eastern Studies

, Vol. 14, No. 3 (Oct., 1978), pp. 263-277 Published by: Taylor & Francis, Ltd. Stable URL: http://www.jstor.org/stable/4282714 . Accessed: 18/07/2013 06:51
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e.2 MuhammadRashid Rida likewise called upon 'ulamd' to free themselves from partisanship for particular schools. basednot only on the Hanafischool but on other schools as well.64.lit. the sphere of relationsbetween man and his fellow. 'Abduh suggested appointing a committee of 'ulamd' to prepare a comprehensive collection of laws concerning mu'dmaldt. It has not succeeded in achieving its main objective. we shall survey their main parliamentary innovationsand evaluatetheir significancefrom a shar'i point of view and in the context of the secularization of Islamiclaw. foundedby Muhammad 'Abduh. has failed signally.l. 'Abduh was guided by practical as well as theoretical considerations: a well-ordered.that this was not the time for fanaticaladherence(ta'assub) to one school or the otherand thatthere was in any case no materialdifferencebetween the various schools: 'The Roots (usul) are near to one another and the divergencesare only in the branches (furu-'). but the mechanism created by ideological infrastructureand technical-procedural them for this purpose caused. as might be socially necessaryor desirable. reshapingIslamicdoctrineso as to adaptit to the requirements of modern society. preparedthe ground for intensive secularlegislation. In the matter of the schools. LEGAL MODERNISM (a) Perfectingthe Doctrineof Takhayyurand Talfiq The moderniststried to synthesizethe materiaof the Sunni schools of law by the doctrine of selection (takhayyur)or combination(talfiq.In the following. Its principalhistoric contributionlies in the field of legal reformism. the abandonmentof the Hanafi monopoly might also make it easier to find properly qualified qadis.of the Moderniststo the The Contribution Secularizationof Islamic Law AharonLayish The liberally-oriented modernistmovement in Islam. the variantsmay be prove fruitful in legal respect. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . the differencesdo not concern basic principlesbut the development of the legal rules. They sincerelystrove to renew Islamiclaw from within through its authorized functionaries. I. Thus. clearly presentedcollection of laws might help qddts and privateindividuals who were hardput to graspthe intricacies of the shari'a with its contradictions and modes of deciding(tar/Fh) between differentviews. he thought.He also maintained that affiliationwith the Hanafischool was not a necessaryqualification for the office of qdd. patch-work). on the one hand. and especiallymattersof personalstatus and waqf. He methodically developed and improvedthe doctrineof takhayyurand talfiq.viz.i. a disruptionof traditional Islamic legal doctrine and.Such a venture.' Not only did this endeavour miscarry..althoughwe may wonder if its foundingfatherswould be proudof it today.30. on the other. might achieveperfectionsince 'the differences [betweenthe schools]are a boon to the umma(ikhtildfuhum rahma lil-umma)'.3 A concreteapplicationof this mechanismfor the purposesof reformsin matrimonialmattersmay be found This content downloaded from 132.93 on Thu.that is to say.

6 (c) Positivization of ReligiousLaw The modernists wished to give a binding positive character to ethical provisionsof the textualsourcesand thus to alterone of the basic peculiarities of Islamiclaw.93 on Thu. as one material source for the creation of law.the infallible consensus. the undeviating adherence to the consolidated doctrineof the four orthodox schools. which includes the dwelling and conjugal duties. 'Abduh suggested.he suggests grantingwomen the right to dissolve their marriage by legal proceedingson grounds recognised by non-Hanafi schools. among other recommendationsfor reforms in the shar'l judicial system. The modernistsconsiderablywidened the applicationof this principle. The modernists wished to get rid of the oppressiveburden of the taqlFd. the ruler may make administrativeregulations in the publicinterestprovidedthere is no substantivederogationfrom the shart'a. They also wished to restrictthe validityof the ijmd'.264 MIDDLE EASTERNSTUDIES with Qasim Amin.In fact.. the sphere of relationsbetween man and God. this was the only legitimatemeans of introducingreforms within the framework of the taql[d. E.a negative one and a positive one. Orthodox exegesis limitedthe husband'sduty of equal treatmentof his wives to matterscapable of mechanical measurement. rationalistic approachto the sourcesof the religiouslaw .7 The most notableexampleis the modernisticinterpretation of the polygamy verses of the Qur'an (Suira4:3 and 129).e. Thus. Therewere those This content downloaded from 132. This demand comprisedtwo proposals.were left to the individualconscience and subjectonly to ethicalrules. in denying the validity of taldq divorceslacking the element of intention(niyya).e. i. incapableof such measurement.5 Thus.' (b) Wideningthe Scope of the Doctrineof Siydsa Shar'iyya Siydsa (policy)as a means to introducereformsis nothing new. Rid.According to their interpretation. that a free. Accordingto traditionaldoctrine. that written documents(tawthiqbi'l-kitdba) should be a conditionof the competenceof the sharl'a courts in certain mattersand that the aforesaidcollectionof personal statusand waqf laws should be forcedupon the sharr'acourtsby decreeof the ruler. he did not recogniseits validityat all.30. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .The modernistswished to prohibitpolygamyby a binding positive provision on the ground that an ordinarymortal cannot be expectedto treat his wives equally in mattersof sentiment. Similarly..should be enabledin orderto adapt it to the requirementsof the time.64. while matters of sentiment (mayl al-qalb).i. by means of which the gates of the ijtihdd had been closed.g..8 (d) The Reopeningof the Gates of the Ijtihad The keystone of modernism was the demand that the gates of the ijtihdd should be reopened. to the generationof the Prophet.while in mattersof mu'admaldt.Qasim Amin says that a warrantfor this reform could be found if sharl'a juristswould 'comparethe schools with one another and examine them comprehensively'. wished to limit its validityin mattersof 'ibaddat. the ruler may restrictthe jurisdictionof the sharl'a courts both as regardsthe subject matter and the substantive law.the Qur'anand the sunna . the selection within this narrow framework did not satisfy them. such as maintenance.

. outsidethe establishment.93 on Thu.In fact. Thisbody.They were to have the statusof legislators.who was to consult with an elite of 'ulamd'. on the other hand.the Caliphwas to be the supreme mujtahid. Shalabidoes not suggest that all parliamentary legislation should be automaticallyscrapped: laws conforming with the principlesof the sharf'a should be retained and others amendedin their light. He thinksthat there were one or more mujtahidsin every generation. to be achieved by setting up a body he calls 'the juristicassembly'(al-majma'al-fiqhl)or 'the supremecouncil for religiouslaw and legislation'(al-majlisal-a'ld lil-fiqhwa 'l-tashrf').authorizedto issue permissions and prohibitions.while in mattersconcerningthe community.the This content downloaded from 132.a personalrightof ijtihddwas to be preserved. Shalabiexpectsthat this will in the courseof time producea generallaw based on the orthodox schools as far as they providethe elementssuitedto the needs and interestsof societyand on the ijtihadas faras they do not. strove to incorporate the muftfs into the judicial system.ahl al-hall wa'l-'aqd .He favoursthe reopeningof the gates of the ijtihdd'in orderthat the sharf'a may again take its place in the sphere of legislation (tashrr')and application (tatbfq)'.'11 the establishmentand.that is to say.MODERNISTSAND SECULARIZATION OF ISLAMICLAW 265 who held that the ijmd' did not exist or was not bindingbecausethe schools did not all recogniseit in equal measure. and the 'ulamd' are duty-bound to deal with this question [polygamy]. Theirviews were not enforcedby the governmentbut acceptedby virtueof their personalscholarlyauthority. in whose hands the authority lies (alladhfn bi-yadihim al-amr). (1) TheInstitutionalization of the Ijtihdd The orthodox ijtihddwas practised by shari'a jurists: independent 'ulamd'. the thesis that they had been closed was enunciatedby 'ulamd' without a basis in the textual sources or the ijma' for the sole purposeof preventingpersonsnot qualifiedfor ijtihddfrom entering. 'Abduh said that this right was reservedto the authorizedexponents of the sharira: '. as in the days prior to parliamentary legislation.'?The modernists. He wishes to identifythat legislativebody with the ancient institutionof the shzurd. fuqahd' and especially muftFs (jurisconsults).12 A contemporary Egyptian jurist. he does not admitthat the gatesof the ijtihddhad ever been really closed.which in several materialrespectswas differentfrom the traditionalone. especially the Hanafites among them. which is to be Pan-Islamicin its composition. what is needed is collective (jamd'il ijtihcd. goes furthest.13 in his opinion.9 The positiveproposalconsistedin the mechanismof the new ijtihdd. as we shall see below.64.from amongst whom the Caliph was to be elected. wished to institutionalizethe ijtihdd. Ridalinks the reopeningof the gates of the ijtihddwith the institutionof the Caliphate.True. Accordingto him. individual(fardi)ijtihddis not enough..is to decidetopical questionsand to revise the ijtihad of the early 'ulamd' in accordance with present-dayrequirements.but that they operated clandestinely in order to elude the zealots of the taqlfd. their school should give a but we should rememberthat he was personallyassociatedwith decision. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .In mattersconcerningthe individual. Muhammad Mustafa Shalabi.30.Ridarecommendedthe establishment of a special seminary for the training of mujtahids.14 (2) TheInstitutionalisation of the Ijmd' While erodingthe classicalijmd'.

links the maslaha with the reopeningof the gates of the ijtihdd. The public interest(maslaha)becamea sourceof law in its own rightas far as it did not conflict with the shari'a.the competent'ulamd'are This content downloaded from 132. too.266 MIDDLE EASTERNSTUDIES modernists.and especiallyRida. the rational analogy confined to the sphere of the textual sources. a humanistic-liberal element was required.Thus. stroveto turn it into a principal instrumentfor the renewalof religiouslaw. infallible and negative with regard to the procedural mechanism for its application. the manner of their election. to make it a rule of life. which is opposed to orthodox doctrine.'8 (3) The Maslaha The intellectualelement of the traditionalijtihdd. he needed this mechanism in order to apply the maslaha principle.such as the identity of the 'ulamd' participatingin the ijmd'. raises a series of practicalproblemsnot clearlyansweredby the modernists.'6 The well-known architectof moderncivil codes.The modernistsmade the social motive a main source of inspirationfor reforms.The modernists. the validity of their decisionsand their relationswith the secularparliaments.by givingthe ijmd'a new content. also regardedthe ijmd' as an instrumentfor the renewal (tajdfd)of the sharl'a. To justify the creation of additionalgrounds for dissolutionof the marriageon the wife's initiativeit is pointed out that the sharl'a does not oppose the advancementof women. but thought that for this purpose it would have to be transformed from a principle of accidental agreement (ittifdq'aradl)into an institutionof intentional (maqsuid) agreement."5 An attemptto institutionalize the ijmd' is made in the teachingsof Rida. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .This principle had no recognisedstatusas a 'root' (asi)of law althoughit has a specialstatus in the Malikischool.'7 The applicationof the new ijmd'. Moreover. which was not possible in the days of the foundersof the schools. is to bear a Pan-Islamic character:Rida notes that it is possible today to convene all living mujtahids from all over the Muslim world in one place for the purposeof applyingthe ijmad'.93 on Thu. the qiyds. The traditional ijmd'was general. The purelyutilitarian approachis aliento the sharr'a. This body.64.'9 The maslaha principleunderlies 'Abduh's and Qasim Amin's reforms in mattersof matrimony. who likewise invoked the authorityof 'Abduh.viz. but if the settingup of such a body should prove impossible.as summed up in a saying attributedto the Prophet:'The umma will never be unanimous in a mistakeor an error'.20 Shalabi. the utilitarianhumanjudgmentnot limitedby materialsources.30.too.He suggests setting up a religious-legal body under state supervisionto apply the maslaha principleso as to adaptthe sharl'a to social requirements. it might under certain circumstances(though not in the sphere of the 'ibddat)override an express provision of the textual sources.Such an elementthey found in the principleof istisldh. the demand for the prohibitionof polygamy is supportedwith the argumentthat the prventionof injusticeis preferable to its redress and is therefore a matter of maslaha. is lackingin the new ijtihdd.he holdsthatthe qiydswas in factguidedby the maslaha. Similarlyto Rida.The body operatingthe ijmd'is to consist of ahl al-hall wa'l-'aqd whom Ridawishes to identify with the ancient shurd. 'Abd al-Razzaq al-Sanhflri. He suggested setting up a body of representativesto engage in legislation (tashrl') and to be guided in its activity by the ijma' of all successive generationsand the requirements of modern civilization.estimatedthat in orderto revitalizeIslamiclaw.

which treats Islamic law as a celestial.the application of the maslaha principlewill be left to the secularrulers.Theireffortswere not continued.Enormousenergieswere. As against orthodox doctrine.i.who will abuse it.22As regardslegal reformism.at any ratenot by the authorized exponentsof the sharra. secularlaws. wasted to prove the superiorityof the sharlra over Western legal systems.2' As stated.the failure is principallyan intellectualone: the modernistsdid not succeedin freeingthemselvesfrom the religious-ethical approachof Islamic law and developinga positive approach instead. the decline of Western liberalism and the disappointment of the expectations placed in it on the ideological and institutionallevel. as was customaryin the past. they were frightened by its ideologicalsuperiority. maslaha and ijmd'. the authorizedexponentsof the sharr'a. Shalabienthusiastically in contrastto affirmsthat the sharlCa. human elementsas sources for the developmentof the shari'a. the modernistsdid not succeed in shaping a new legal doctrine amalgamating Islam with liberal elements of Western civilization. is realistic(waqi'iyya)and adaptableto social requirements. The failureof the modernistsas a movement of the of middlestrata religiousrenewal was due to the lack of a broadinfrastructure and liberal traditions in Islam. This content downloaded from 132.24 II.30. were hazily conceived and full of contradictionsowing to the difficulty of synthesizing utterly different legal methods..64. That contribution was both destructive and constructive:the erosion of traditionalorthodox doctrine.unauthoritativeand unenduring.eternalcreationnot changeableby man. that all the principles and theories embodied in Western laws have already been enunciatedin the sharr'a. and the supply of a refashioned shar'l mechanism for parliamentary legislation.26 The modernistsundoubtedlyintendedthat the gates of the ijtihddshould be reopenedby the 'ulamd'andfuqahd'.they becameimmersedin sterileapologetic debatewhich sappedtheirintellectual creativity. The demand for liberationfrom the taqld meant the removal of the dividing wall which had hermeticallysealed off Islamiclaw and protectedit from externalchallengesthroughoutthe periodof the decline of Islam. The modernists themselvesas bound by the orthodoxdoctrineof Islamiclaw even in regarded so far as their reform proposalsmeant a departurefrom it.e. that inspiration should be drawn from it for modern legislation. Thus. the modernistsstress The earthly.on the one hand. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .He fearsthat if neithercourse is adopted. THE EFFECTSOF LEGAL MODERNISM (a) The Erosionof Orthodox Doctrine The modernists unwittingly made an appreciable contribution to the secularizationof Islamic law.93 on Thu.MODERNISTSAND SECULARIZATION OF ISLAMICLAW 267 are to carry out that function by issuing fatwas (legal opinions).As a result. Their attemptto improvethe doctrineof selectionand reopenthe gates of the ijtihdd by refashioningtraditionalmechanisms was immature.25 weakening of the position of the traditionalijmd' by itself underminedthe authority of orthodox doctrine.23 Another adverse circumstancewas their ambivalentattitudetowards the West: while drawing inspiration from it.Their mechanismsfor reopeningthe gates of the ijtihdd.on the other.and that even Westernjurists are full of praise for the latter. and still are.

on the other hand.judicial decisions. while rooted in Islamic legal sources. including the shra.27 Ridamade an appreciable contribution to the formationof a secularconcept of the legislativeauthority.with its various schools and groupings.64.32 (b) The Provisionof a Traditional Mechanismto Parliaments with an improvedtraditional The modernistsprovidedparliaments mechanism that was used very dexterouslyfor the introductionof reformsin mattersof matrimony and waqf .albeit of 'ulamd' .Alwent one step furthertowards the secularizationof Islamic law by Sanhuirl the renewedijtihadandjudicialdecisions.30.the later modernistsdid not shrink from applyingthis mechanism to secularlegislation. Moreover. he believed that the true Caliph. Rida denouncedsectarianfanaticismas splittingthe Muslim umma. ahl al-hall wa '-'aqd are also the electors of the true Caliph..e. close to the concepts of Western parliamentarism.on the same footing. when about to drafta comprehensive This content downloaded from 132. On the other hand. by the Egyptianparliament. there is nothing to prevent the Caliph from changing the earthly law. Thus.was capableof uniting the sunni schools with the shlrtand other non-orthodoxsects. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .3'Despitethe importantcontributionof mechanismto the parliamentary the qddfsto the development of the sharta in the earlyperiodof Islam.far beyond their own original intentions. let alone secular judicial decisions. Moreover. the ijmd' can be applied to these three sources. as means to introduce reforms and develop the shan'a.29 Qasim Amin most definitelyexpects the reforms suggestedby him.who accordingto his doctrine was also the suprememujtahid.without distinctionas to their respective merits .He distinguishedbetween spirituallaw (in matters of belief and worship) and earthly law (in matters of public concern).Thus. This concept comes very close to that of a Western legislativeauthority. They expandedthe doctrineof takhayyurand talflqso as to includealso extra-sunni elements.that is to say that the sovereigntyof the umma is embodiedin them. al-Sanhirl. as one legal aggregatewithin which the legislator has wide freedom of action in applying the doctrine of selection.that is to say that there is a definiteattempthere to shift a traditional level.but stressed that Islam required the legislator to have special intellectual and moral qualities. to which no religious sanctity attaches. their desireto institutionalize establishmentof a body . to be carriedout by the governmentor the 'holders of power (awliyd' al-umar)'.with a clear-cut procedural mechanism for passing decisions in matters of religious law was alien to orthodox doctrine and. Shalabilikewise refers to the Islamic legal heritage.and designating besides the parliamentarylegislation. had not been recognised as a source of law. In his opinion. They thus unwittingly legitimizedthe infringementof the sovereigntyof Islamiclaw by the secularlegislator.30 i.28 Rida saw no material difference between the procedural mechanismof the body he had in mind and that of a parliament. in accordancewith social requirements.providedthat the enactments do not conflict with the textual sources and are made in consultationwith the 'personshaving authority(ualu al-amr)' and ahl al-hall wa '-'aqd . QdsimAmin did not hesitateto invoke the views of the shia and the Hanbali school .93 on Thu. The former is not changeableby man.in the matter of the invalidation of triple repudiation.268 MIDDLE EASTERNSTUDIES the ijmd'and the ijtihadby the At the same time.

38 is supposedto be appliedto mattersof personalstatus even in the latter. True. courts in Moreover.the main sourcesof inspirationfor this law are decisionsof Egyptian courtsand modernlegislation.so as to formulatea complexlegalrule unsupported by and occasionallynot even compatiblewith any of the sources from which the elements had been drawn. are now ahead of Egypt. They reacheda stage where they did not shrinkfrom combining elements from different schools and jurists (talfiq). much as a synthesis was found in BritishIndia between the sharCaand English legal principles(Anglo-Mummadan law): in fact.it served as basis for the completeabolitionof the sharfi'a Although Islamiclaw Egypt and the transferof their powers to state courts.35 This method has rightly been describedas elements shrinkfrom incorporating 'legalopportunism'. as some observers are inclined to do.The partassignedto the shart'ain this synthesis is the least importantand sometimes borderson lip service.was used by parliaments in the 20th century to restrictthe power of the sharr'acourts.it is dispensed by civil judges who in matters of evidence and procedure are supposedto be subjectto secularlaw. without being tied to a particular school'. The Egyptian authoritiesapparentlyexpect theirwork to be done for them by the civil courtsby way of case law. most reformsin matrimonialand This content downloaded from 132. which was leading in reform measures in the first half of the 20th century.30.MODERNISTSAND SECULARIZATION OF ISLAMICLAW 269 civil law.This course of action ultimately led to the introductionof reforms which had no basis in the textual sources and were grounded solely on public interest not conflicting with the principlesof the shar'a. sometimes based on conflictinglegal premisses.such as the preventionof evasion of the age of marriageprovisionsin Egyptianlegislationand the registrationof divorces in Jordanianlegislation.It seems that we should not over-rate the significance of 'secular Islamic legislation'. such as the recognition of wills in favour of a legal heir in the EgyptianLaw of Testamentary Dispositionsof 1946 or the en blocadoptionof the shlta methodof successionin the Amendmentto the IraqiLaw of Personal Statusof 1963. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . They went so farin developingthe talfq that accordingto some observersthe differences between the sunnl schools or betweensunni and shlf' law were almost obliterated.perfectedby the modernists. progressive legislation in this sensitive area.but this is supposed to be an arrangement without bindingforce39 and probablyintendedonly for a transitional period.93 on Thu. It supplieda proceduraldevice for the introductionof amendmentsin variousmatrimonial matters.33 any rate.the qddfshave been incorporated into the statejudicialsystem by the side of the civil judges. no law on matrimonialmattershas been passed on Egypt since the coup d'etat."3 The siyasa principle.36 Nor did parliaments of the shl'a into that legal synthesis in so far as they suited the legislator's purpose. which was to include also matrimonialmatters. as to liberal. To avoid a confrontation with 'ulamd' circles.64. The secular elements Western and the national.34 in fact widened the applicationof the doctrineof selectionvery Parliaments considerably.are the dominantones. and even Jordan. Shar'f elements were chosen only in so far as they conform to Western legal principles.at any rate. and countriessuch as Syria and Iraq. the revolutionary regime in Egypt refrains from infringing the sharia by substantivelegislation.wished to 'take the opportunityof selectingfrom the shar'l books on these questionswhat is most At suited to the spiritof the time.

i. not prohibited by the sharra (mubdh). easy to apply to secular legislation.Rida believedthat if 'Abduh's recommendations for reformsin the judicial system had been accepted the replacementof the shart'a by parliamentarylegislation could have been avoided. 'Abduh not only opposed the abolitionof the sharia courts but recommended extendingtheirjurisdiction to civil matters. it adoptedelements that had no or only very tenuous roots in that heritageon the plea that they were in the public interest or that they were not contrary to the sharia. In fact.Sometimesamendmentswere thus introducedwhose basis in the sourcesis extremelyslender.30.. Thus..4'But there can be no doubtthat in the long run. The next stage in this development will probably be the preparationof a code of matrimonial law.it seems that This content downloaded from 132.45 The siydsa was also extensively used in modern legislation to introduce substantivereforms in matrimonialmatters: the ruler directedthe qddfs to choose from the variedlegal heritageof Islamsuch elementsas suitedconcrete social purposes.is binding (wdjib)on his subjects according to the Hanafi school.It is anticipated that other Arab countrieswill follow the example of Egypt (and Tunisia)in abolishing the religious courts.270 MIDDLE EASTERNSTUDIES waqf mattersin Indiawere introducedin this way and not by legislation.e.42 Under these circumstances. modern parliamentarylegislation has made considerable use of the maslahaprinciple. as part of a comprehensive civil code. But even among those recommendations there were some that unwittinglycontributed to weaken the position of the sharia.44 whereas al-Sanhfiri the incorporation regarded of the shart'a courts in the civil judicial system as merely a furtherstage in a naturaldevelopmentfollowing the absorptionof matrimonialmattersinto a generalcivil law. The ExplanatoryNote to this law says that a direction of the ruler to abide by something that is recommended (manduib) or permitted.43 Needless to say that the modernists did not intend to perfect the siydsa principlein order to underminethe sharCa. as their place is taken by civil judges with a Westernlegal trainingand without a traditionalshar't education.Social need became a source of law in its own right. providedthere is some usefulness (maslaha)in it within the meaning of the shari'a.When no suitableelementscould be found in the Islamic legal heritage. where reformscould be based on elementsof the Islamiclegal heritage.e.just as they used to do in the shari'a courts.the reform will make itself felt and Islamic law will be exposed to the influenceof Western legal principles." The maslaha principlewas so widely extended by the moderniststhat its link with the textual sources was severed and it became a purely utilitarian concept.64. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .40 An informantfamiliarwith the Egyptian legal system has told this writer in the early seventies that the judicial reform is so far devoid of real significancethat the qddfs apply Muslim family law and Muslim rules of evidence and procedurein the statecourts in strictadherenceto the taqlid. for the use of state courts.it is not surprisingthat the abolition of the sharia courts in Egypt is regardedby some as an historicturning-pointmarkingthe end of the Shar'( State.g.93 on Thu. 'Abduh wished to institutionalize the muftis in the higher grades of the judicial system and give their opinions the force of non-appealable judgments. Moreover. the paymentof compensation to divorced women in the Syrian Law of PersonalStatus.

in its modern version. the legislator wished to base the revolutionaryinnovationon generalshar'F principles. Tunisia and Morocco) and the denial of the effect of a formula of divorce pronouncedoutsidea courtof law (in Tunisia. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . At the same time. ijtihdd. the applicationof this mechanism.without referenceto the factual or legal context from which they were taken..i.e.49 have here. as he understood it. the reformerssoon realizedthat takhayyurand talfiq were not enough and that there was no escape from reinterpreting the textual sources (the Qur'anand the sunna) which is tantamountto reopeningthe gatesof ijtihdd.To legitimizeit. the reformersenactedpositiveprovisionsof law in relianceon an independent interpretation of Qur'anicprecepts. underconditionsof highly-developed technologyand communications. As already hinted above.such as the prohibitionof causing damage (i. than at any time in the past. in a way.5" the maslaha principle in parliamentarylegislation confirms that the earlier 'ulamd' had reason to oppose its explicit applicationfor fear that the rulers would exploit it to their own advantageand to preferthe qiyds.which is sufficiently flexibleto The intensive use of legitimizeany contractrequiredby modern conditions." In Syriaand Iraq. e. the ban is not intendedto impairthe substantivevalidityof religiouslaw: the qddfis given wide discretion to permit an additionalwife where it is provedto his satisfaction that the husbandis able to treat his wives justly and supportthem and that there is some usefulness Even as to legislativetechniquewe (manfa'a)in the polygamous marriage.93 on Thu.64. a kind of maslaha rule) and the mut'a mentionedin the Qur'an(Sura 2:236 and 241).Qasim Amin suggestedempoweringthe qddtto prohibitpolygamousmarriages at his discretion in reliance on 'the interest of the umma'.47 Thus. the adoptionof a line suggestedby the modernists..e.polygamy has been prohibitedby daringpenal legislation in relianceon the maslaha principleand on the modernisticinterpretation of the polygamy verses.. Those observers are only dividedover the identification of manifestations of the reopeningof the gatesof Thus.Iraq.MODERNISTSAND SECULARIZATION OF ISLAMICLAW 271 these were chosen according to the degree of their suitabilityto the social purpose pursued by the reformers.This was precededby an ideological loosening-up effort of the moderniststo make it clear that those gates had never been really closed and that the mechanism of ijtihddwas necessaryin orderto adaptthe sharifato the changingrequirements of society.5" Sa'udi Arabia has granted to foreign companies oil concessions couched in shar'iterms and basedon the maslahadoctrine.is easiertoday. so it is affirmed.g. In their opinion.52 III.30.Pakistanand Iran)as cases in point. In all these cases. Iraq. who does not necessarilyreturnto her father'shouse or remarry. EVALUATIONSOF LEGAL REFORMISM Thereare observerswho interpret 'religiouslegislation'in matrimonial matters as a development within the sharf'a. Anderson refers to the ban on polygamy (in Syria." This content downloaded from 132. the analogy confined to the textual sources. the compensationawarded by the Syrian Law of PersonalStatusto a wife arbitrarily divorcedand therefore likely to suffer damage was undoubtedly the outcome of the legislator's concern for the woman. of a social motive patentlyconffictingwith the shart'aconcept of maintenanceduringthe waiting-period ('idda). and Coulson mentionsthe ban on polygamy and compensationto a divorcedwife (in Syria)in the same context.

such as the of appealproceedingsand drawing-upof Western-type codes.The referenceto the modernistswas intendedto facilitatethe impositionof the reformsupon the exponentsof the shari'a. There are material differences as to the technique of approachingthe Qur'an and the sunna. the reformistdrive is chiefly due to Western ideas and pressurescreatedby the disequilibrationof Muslim society in consequence of modernizationand Westernisation. the 'religious legislation' which uses mechanisms with religious connotationsis first and foremostthe work of sovereign secularparliaments. was first introduced by the Law of Personal Status of the Druze Community in Lebanon. the introduction the abolitionof the shart'a courts.56It should be noted that a reform restrictingthe right of taldq. linking it with legal proceedings. some of the reforms have no basis at all in these sources.which by their natureare liableto change. On the other hand.For the purposesof such a synthesis.Islam knows no mundane legislativeauthority.subjectsand characterof the reforms:the approachto the textual sources is not effectedby means of the deductiveqiyds but of the utilitarian maslaha.The sharifa as an eternallaw is above society. and the rather forced adherenceto the Islamic sources from which they were taken was severed in the process of legislation. But the reforms rely on governmental. in this case. the questionwhethera reopeningof the gatesof ijtihddis involved obviously does not arise.it is claimed. the sources of inspirationand the motivation.93 on Thu. Such new departure. This evaluation implies that Islam is on the thresholdof an actual reformation. These set limits to the sharfa and decidewhich of its elementsto receive into the frameworkof statutorylaw. and must be interpretedsolely within the framework of statutory legislation.it seems to us that modern legislationshould be viewed as a developmentoutsideIslamiclaw.57 Nor should the dozens of legal circulars This content downloaded from 132.54 Although the legislatorstry to base their reforms on the teachings and prestigeof the modernists.272 MIDDLE EASTERNSTUDIES Moreover. providedthey do not conflict with the sources of Islamic law. independent of those sources. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . are tantamountto outward manifestations of changes in Islamic legal philosophy: the sharia is said to have lost its characteras an eternal. and as for mattersnot dealtwith in the textualsources.of 1948.it is saidthat there at all on reforms. The reformersare mostly professional jurists who have had a modern legal training. opens up possibilities for farreaching reforms.The situationhas been viewed in terms of a synthesis of Islamic and Western law.'s The ijtihdd in its classical meaning is the work of muftis outside the establishment. which makesthe validityof taldqconditionalon a decreeof the qddl.this resemblance is Qur'anicverses bearsome resemblance purely technical.Coulsonclaims that substantiveand formalreforms. Althoughthe directapproachof the reformersto the textual sources and their independentinterpretation of to ijtihddprocesses. to be treatedas a functionof social conditions. and the ruler is also subjectto it. they have an autonomous existence.64.30. similar to the process which occurred in the formativeperiodof the former. except for mattersof worship.not religious sanctions. especiallyupon the shar'ijudicialsystem in so faras it stillexisted.and that social need alone is sufficientto is now no restriction legitimizethem.it would firsthave been necessaryto identifythe essentialprinciplesof the Islamiclegal heritage.immutablelaw and.

through one of his officials.. by the Islamiclegalheritagewith topicalconsiderations.On the other hand.he is undoubtedlyreferringto an experimentmade in a secular context.60 In sum.62 technicalresemblanceto the ijtihddmay createthe illusion that they are an internaloverhaulof the sharia. e.. This family is based on the principlesof the superiorityof men over women and the precedence of agnatic over cognatic relatives. and accord with the norms of an increasinglyWesternisedsociety which are incompatiblewith the family concept of Islamic law.the abolitionof religious courts in Egypt was not so much prompted by considerationsof administrativeefficiency as it was to demonstrate national sovereignty by removing the remnants of the legal autonomy of foreigners. in mattersof the age of marriageand of polygamy.g.he rejectsthem for purely legal reasons: the dangers of mixing concepts from doctrinesdifferentas to their historical and disciplinary heritage. Thus. the legal reformsare deliberately secularlegislativeacts.93 on Thu. do not terminatethe substantivevalidity of the sharlta as crystallizedin the taqlfd. as far as possible.they were intendedto confirmthe rightof the rulerto limit the powers of the religiouscourts .63 On the other hand.by virtue of the siydsa principle. Chehata even doubts the orthodoxy of takhayyur and talfiq since. the creation of ideological indebtednessto the West. embodiedin the sharra and sanctifiedby ethical commands. each of the Sunni schools is homogeneous and autonomous. In his opinion. Although impressive reforms have been introducedby these techniquesthroughtheir pragmaticapproach. The parliaments wish to avoid. Shalabi calls for emancipationfrom 'legal imperialism'. the applicationof traditionalmechanisms in secular legislationwas to mitigateas far as possiblethe antagonismof the 'ulamd'and conservativecirclesto reformsin Islamiclaw. carriedout in a traditionalmedium but outside Islamiclaw. Arab legislators. as a conditionof full national liberation. Western laws imposedon Arabcountriesduringthe periodof colonialrule. have created svnthetizing a droit transitoire. especiallythe transitionfrom the extendedto the nuclearfamily and the social liberationof women. These principlesare legitimized by many utterances in the Qur'an. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . many mattersdesignedto improvethe legal statusof women reformsin matrimonial and to equalisethem with men .e. in his opinion. and the question of the iftihddis thus irrelevant.especiallythe trendtowards a monogamous marriage. The modem reforms in matrimoniallaw reflectchanges in the strucureof the family.61The mechanismsprepared for the implementation bonafideby the modernistsare used by the parliaments of a secular reformistpolicy for national and tactical reasons: although the source of inspirationfor the reformsis in the West.i.erode the patrilinealand patriarchalstructureof the Muslim family.58 Moreover.and the equalityof the sexes in succession . they ostensiblybase them on the Islamic legal heritage as a manifestation of the Arab national patrimony.64. Referenceto the modernistsin This content downloaded from 132.59 The reforms introduced by means of procedural devices and penal legislation. the curtailmentof the husband's right of taldq with a view to replacingthe latter with divorce by legal proceedings.30.MODERNISTSAND SECULARIZATION OF ISLAMICLAW 273 issued by the GrandQddiof Sudan in mattersof administration of justice and the applicationof substantivelaw be viewed as the legislativeact of a religiouslegal functionary.

Kedourie. Al-Khildfaaw al-Imdmaal-'Uzmd.we should regardproceduraldevices and penal legislationas means to introducereformsinvolving no confrontation. in the context of heterodoxy and contemporarypolitics see E.67The 'ulamd' of Aleppo describedthe abolitionof the sharra courts in Egypt as 'a blow to divine law and a wound inflictedon the heart of Islam'. which in his opinion were 'ibdddt.70 The 'ulamd'had no constructiveproposalsfor reform.30. case of greatdifferences compensationto divorcedwomen and custody of the childrenafterexpiry of the period of hadana. Islamiccharacter. Rida criticized the al-Azhar 'ulamd' of his time for not opposing the suggestionto cast the shar'( matrimoniallaws. pp. cit. 66. 1967. Schacht. Hourani.The approachof the reformers is pragmatic.Successionin This content downloaded from 132.Jamal al-Din al-Afghaniand Muhammad 'Abduh. 4. 1966. Cairo. V-VII. The conservativeones stronglyopposed the reforms. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . not theoretical: they want social results with a minimum risk. O. 1964. 38-40 and 64-6. London. second ed. 1900. Thus. For an appraisalof the fathersof modernism. in the hope that responsibilityfor the adaptation of the shari'a to social requirements in these matters would be shifted from parliamentto the religiouscourts (a hope which was disappointed).U. 54. into the mould of a statute and to abolish the shart'a courts.An Introduction to IslamicLaw. like the exponents of Westernization for the loss of the state's (mutafarnijun). pp. MuhammadRashidRid. 3.Neithergroupseemedto be aware of the long-rangesignificanceof the reforms. 1923. the neo-ijtihdd was a device to bring this about and the reform processes underminedthe foundations of the Muslim faith. London. Q6sim Amin. Hourani.which they regardedas deliberateattemptsto seculariseIslamiclaw. op. he also charged that they neglected their duty of adaptingthe sharVato social requirementsand thereby became responsible.much like the declared status of Islam as the state religion and of the sharia as the main source of Arab countries. p. permissionfor polygamy. N. 154 and 161-2. 5. J.274 MIDDLE EASTERNSTUDIES the explanatorynotes to the new matrimoniallaws was to give the reformsa shar'Fcolouring and thus make them acceptableto a potentialopposition. 152-3. Tahrtral-Mara. A. Part of them were guided by enlightened views and part by the belief that moderate reforms ostensibly based on the shar'a were the lesser evil . 15.68 Still. pp.66 The attitudeof the 'ulama'towardslegal reformismis also significantin this connection.. 236-7.that stubbornoppositionon their part would mean complete abolition of the sharia with all this implied in regardto theireconomic.P. the discretion of the qdd(s was widened to an unprecedented degreein modernlegislationin matterssuch as marriagein the in age betweenthe spouses.and this probablymade it easierto securetheir acquiescencein the secularistpolicy of the regime.93 on Thu.64. in their opinion.an Essay on Religious Unbeliefand PoliticalActivismin ModernIslam.there were 'ulamd'who adopteda passiveattitudetowardsthe reforms or even supportedthem to varying degrees.Arabic Thoughtin the LiberalAge 1798-1939. Muhammad'Abduh.. Coulson. p.Afghani and 'Abduh. although their livelihoods and prestige were at stake. J.64 Phenomenaof this kindshould be treatedas lip service. 1941.. TaqrfrfiIslah al-Mahdkimal-Shar'iyya. Cairo.65 legislationin the constitutionsof several Mediterranean In this connection. pp.69 Thus.social and politicalposition. 2. Cairo.71 NOTES 1.

cit. Studiesin OldOttoman Criminal Law. 135.op. 1964. Rida.op. p. 180 and 192-3. 70 and 79. p. 1976. VII (1971). Kerr. Yesterday. Shalabi. 1967. Meron.. 27. 20. pp.. 204-5 and 207. cit. Al-Fiqh al-. Usuil al-Qdnan. 138-40. 12. cit. Hourani.op cit. Kerr. 4 and 120f.'sldmt bayn al-Mithdliyya wa 'l-Wdqi'iyya.and that it could adaptitselfto changingconditionswhile relyingon the principleof maslaha in cases of which no express provision (nass) is made in the Qur'anor the sunna.MuslimLaw in Israel(in Hebrew). 1963. 34 and 66. 1-2. Al-Khildfa. pp.. Berkeleyand Los Angeles. pp. pp.op. 151-2 and 166. 98. 8. 165-6. and more. J. 349-50. p. N. 18.. Al-Khildfa. 158 and 161. 24. M. C. D. 15.cit. cit. XLVIII.op. cit.Al-Khildfa. 5. Amin. 14 Sept. Safran.op. 187.. Tafsfral-Qur'anal-Haklm.. N. Cairo. cit. 177 and 194-5. Smith. M. The modernists were preceded in this respect by Ottoman 'ulamd' in the 15th-17th centuries. It is interestingto note that similar assertionshave recently been made by Sa'udi 'ulamd'. 234. 21. 30. 198ff. 'Abduh and Rida.They. 178. 13. Coulson. cit. 6. pp. Heyd.Law Reformin the Muslim World.'The Abolitionof the Shar'iCourtsin Egypt'. Cf. See also 'Abd alRazzaqal-Sanhuriwa-Ahmad Abu Satit. Ben Shemesh. op. Anshen (ed.. Kerr. Gibb. than mortal man could comprehend. pp.. Mid-East: World-Center. W.op. pp.. pp.op. Muhammad'Abduh and MuhammadRashidRida. 67. ed. 230 and 233-4. 1971. in Symposiumon IslamicNorthernAfrica.. 6-11. cit. cit. Islam in ModernHistory. R. See Nadwa 'llmiyya hawla al-Sharf a al-Isldmiyyawa-Huquiq al-Insdnfi al-Isldm. pp.pp. 10. D.. Cairo. 4.pp. Kerr.op cit.1957. Gibb. in R. 88.op. 9.). 12. pp. Kerr. cit. TheMuslim World. 'Abduh. pp. 23. p. 189. Hourani. Rida. 166. In a dialogue between them and Europeanscholarsand juristsin Riyad on March 22. Hourani. Rida. pp. 15. 202-3. 91-2. cit. London. 1973. Menage. 19. 34. cit. 133. pp. 1973. 11..Majallatal-Qdnuin wa 'l-Iqtisdd. Goiteinand A. pp. 26. Alexandria.. Edinburgh. op. pp. too . 22.. 'Abduh and Ridi. pp. Gibb. S.Vol. 183 and 187. Schacht.. 17. 147. pp. cit. L. p. Coulson. p. 240 and 244. Islamic Reform: The Politicaland Legal Theoriesof Muhammad'Abduhand Rashid Ridd. op.30..Today.. p. Khadduri. 201. 72-3 and 75-8.P. cit. 13.unconsciously. 55-6. 61. 90f.. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . op. Kerr. Beirut.op.op. op. 1956. pp.pp. that it comprised everything. Schacht...(1958). Asian and AfricanStudies. Anderson and N.. 2 8. and Abu Satit. pp. p.third printing. p. cit. and Tomorrow. 12-14. N. Shalabi. J.pp. op. 3 1. pp. 'Contemporary ReligiousThoughtamong the 'Ulamd'of alAzhar'. pp.Jerusalem. pp. cit. pp.Vol. A. 16. C. 197 and 203. Schacht. pp.Vol.New York. J. ex fasciculo XXX. Hourani. Kerr.. cit. Norman Anderson. 1972. Muhammad Mustafa Shalabi. Coulson.64. See also Hava Lazarus-Yafeh. 97f. by V. op. 29. pp. London. Amin.op. cit. cit. N.See U. 14.London. N. cit. cit. J. Smith.U.ModernTrendsin Islam. Andersonin consultationwith N. 'Modernization: IslamicLaw'.'Wujub Tanqihal-Qanunal-Madanial-Misriwa-'ala ay Asas yakfn hadhaal-Tanqih'. 7. 80 and 102. 211-36. 194-97. 224. 126 and 155. H. 21-2 and 25. 44. 'Abd al-Razzaqal-Sanhuri. 140. pp. New York. 10-1. 350-1. Vol. Cf.'From Religiousto National Law'.op. pp... 115-16. 59 and 80. 137. p. op. 121-2. pp. 'The Developmentof Legal Thoughtin HanafiTexts'. IV. cit. pp. p. Amin. 189-91..provided a shar't legitimationand a mechanism(siyasa of secularlegislation(the qdnuin shar'iyya. VI.maslaha)for the intervention andfirmanof the Sultan) in criminal law with a view to restrictingthe applicationof the sharia and adaptingit to the requirements of societyand state. Y.A Historyof Islamic Law.Chicago. Al-Sanhuirl This content downloaded from 132. 1941.pp. they claimed that Islam was differentfrom other religionsin that it was compatiblewith science and human reason. 156-7 and 164. Hourani..op. Islamic Law in Contemporary Cultural Change.93 on Thu.op. 1966. 1947. D. Gibb. p. J.op. 1971.. cit. p. p. 348-9.MODERNISTS ANDSECULARIZATION OFISLAMIC LAW 275 the MuslimFamily. 155-6.. Munchen. H. 91. 80. op. 17and 201. cit..op. 25. 76. pp.1960. Studia Islamica.

30f.in his Political Trendsin the Arab World. cit. cit....op.276 MIDDLE EASTERNSTUDIES 32. IV.pp.Droit Musulman. 42.Application au ProcheOrient. op. 28 and 133-4.pp. Coulson. pp. Esposito. Andersonand Coulson.The IslamicQuarterly. Anderson. 186-7. Vol. Amin. Wiesbaden. 83 and 89f. J.. Schacht. N. 87-8. Khadduri. op. Succession. Goitein and Ben Shemesh. al-Mandr.is likewise basedon a 'modernist' of the polygamy verses of the Qur'an. the fear that the new reforms would not be sufficiently radicalcomparedwith those in countrieslike Tunisiaand Syria. 65ff.art.. 230. cit. I 12. ExplanatoryNote to the Syrian Law of PersonalStatus. Al-Sanhfiri.Law Reform. 87. 86 and 90. pp. idem.pp.. 45. idem. p. op. 206-10. pp.A History. Conflicts and Tensionsin Islamic Jurisprudence. 151-2.Law Reform. 209-10 and 222.op. 22.op. Anderson.. 26. 231f. Anderson. 184 and 188. idem. Hinchcliffe.Law Reform. Coulson. See A. idem. 61. Anderson. Heyd.p.. Vol.p.. cit. 242-4. Cf.. Anderson. 51ff. 'Abduh.pp.London. Anderson.. op. Law Reform.64. 189 and 198.op. 93.Bulletinof the Schoolof Orientaland AfricanStudies. cit.. pp. 539-42. pp. pp. 1959.. 'Problems of Modern Islamic Legislation'. 6 and 138.Baltimoreand London. J.An Introduction. 'MadaniyyatalQawanin (wa-Sa'y al-Mutafarnijin li-Nabdh Baqiyyatal-Shari'awa-Hadamal-Din)'. Another reason for the discontinuanceof legal reformism in post-revolutionary Egypt was.. cit. Anderson. XXIII. pp. cit. Succession.pp. 42. 25-6. See also Explanatory Note to the OttomanFamily Rights Law concerningthe increaseof the age of maturity.pp.pp.Law Reform.. pp. Law Number462. It should be noted that the ban on polygamy in Druze religious law. cit. 1.. On the advantagesof reformsthroughcase law see ibid. and 45f. (1970). 46. pp 33f. Coulson.p. p. op. 3. pp. 22-3 and 26-7..Vol. Al-Sanhiri.). Kerr.'Modernization'. cit. idem. 54..'Polygamy in Traditionaland ContemporaryIslamic Law'. 102-4 and 115-16. 220 and 221.op.93 on Thu. 49.pp.Al-Khildfa.. See Explanatory Note to this Law. 153. 1971. pp. 7 and 58ff. 39. 36. 42. Coulson. p. p.pp. 54. 35.. ExplanatoryNote to the Syrian Law of PersonalStatus. 1 (1954).A Dissertation submittedto the Temple Universityfor the Degree of Doctor of Philosophy. pp.art. p. D. 78 and 82. 1970. 'Problems'.. idem. Shalabi. Anderson. 37. 140. 264. I. 133. op. 170-1. Al-Sanhuri. Amin. Coulson. 147 and 150. p. p. 95-6. cit. cit. This content downloaded from 132. 230. A History.Journal of the AmericanOrientalSociety. 1955 Concerningthe Abolitionof the Sharia Courtsand the Religious to the National Courts.p. Studia Islamica.A History. 94f. 52.A History.op. 41-2. Gibb.op. pp. Chicago.p. 77ff. Safran. pp. 51. cit. Anderson and Coulson. pp.. J. cit. cit.op. originatingin the Isma'iliyya(it is ascribedto the Fatimidal-Mu'izzli-Din Allah). 1969. No.pp.. 38.Law Reform. cit. von Grunebaum (ed.Paris. in G. 194-5.Law Reform.Law Reform.op. 'The SyrianLaw' pp. Courtsand the Transferof their Jurisdiction 40. 47. D. E. D.IslamicLaw in the ModernWorld. 20-2. 36.Law Reform. p. cit.op. 221 and 222. pp. 60. Anderson and Coulson. XVII (1955). op. 55. 185-6. pp. cit.A History. cit. No. 195. p. 41. Schacht.. p. Cf. pp. 'Free Thought and Secularism'. Rida. 1970... Idem. 'From Religious'.pp. 50.pp. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions .. p.op. 1974. cit. Schacht.Vol. 105. 2. 92. 120-21. 164f. 43. Islam and the ModernAge..pp. Law Reform. al-Sanhiri and Abu Satit. (in press)and the sources indicated there. 41.A History. 'The Shari'a and the Civil Law (The DebtOwedby the New CivilCodesof Egypt and Syriato the Shari'a)'.30. Anderson.p. pp. 137. Coulson.pp. 51. pp. p. 20. Muslim Family Law in Egypt and Pakistan: A Critical Analysisof Legal Reform. Anderson. 249 and 258ff. 71. 197-201. 34. See Anderson. 53.. Theology and Law in Islam. Kerr. 44. 221. idem.op. p. pp. The SyrianLaw of PersonalStatus. 'The Syrian Law'.The Role of Ideas and Ideals in Politics. Conflicts. 48.pp. Muhammad Rashid Rida. Succession. Hourani. Coulson. Coulson. p. pp.. 'The Syrian Law of PersonalStatus'.Law Reform. op.Its Sources and Methodological Problems. 4. 117. 110ff. Coulson. Layish. XII (1960). A History. For an up-to-dateconfirmation of this evaluationsee Anderson.'Theologyand Law in Islam'.. idem. cit. op. 16.p. 'Polygamy and the Druze interpretation Family in Israel'. pp. J. ChafikChehata. Safran. Kerr. N.. pp.J. Vol. pp. Anderson. Khadduri. 6. cit. 29-30 and 32-3. 33.. in Anderson'sview. 172f.

22-3 and 26-7.p. pp. cit. cit. Family in Contemporary in his (ed. of 1964. 155 and 223. 221.p. p.. 2. ScriptaHierosolymitana. Andersonand Coulson. idem. Conflicts. and 31 1. Anderson.p. 134-5. Liebesny. 134. art. Heyd.pp. I 12-1 3. 229. Law Reform. 'The Ottoman'Ulema and Westernization in the Time of Selim III and Mahmud II'. Anderson. p. 1968.Law Reform. XXXI. 65. 1606 1. and the Constitution of the Egyptian Arab Republicof 1971. p. 59. pp.p. 221-34. 122..p. 61.Libyaand Egypt)of 1971. pp.. Coulson. A History. 133. 1970. 68. Succession. 543-6.op. Safran.. S. Safran. pp. Conflicts.30. 540-3. op.'The PersonalLaw of the DruzeCommunity'. Sudan Notes and Records. 'Problems'.. p.A History. Coulson. cit. 63-96.). new impression.. Safran.op.Die Weltdes Islams. 25-6. Khadduri. 229. in his (ed. p. Khadduri. pp. Khadduri.FamilyLaw in Asia and Africa.Islamic Law in Africa.. 63. 107. 221. 3 (2). J.London.. N. 177-8 and 215-19.op. 67. the Constitution See.64. on the other hand. Rida. op. 121 and 122. 34. 71. Anderson. pp. 86. II (1952). cit.op. Cf. 69.. cit. 3 and 183. Safran. Conflicts.. cit. 114. p. art. 66.g. 70. 62.p.pp. Jerusalem.An Introduction. cit.p. J. 60. Heyd. IX. cit. Liebesny. Anderson.'From Religious'. p. I (1950). pp.). TheMiddleEast Journal. J. pp. 57.pp. Schacht. 87 and 90. idem.London. D. See Rida. N. N. 29. art. pp. Vol. the SyrianProvisionalConstitution of the Federation of Arab Republics(Syria.. 112f. 181. idem. pp. 'Recent Developmentsin Shari'aLaw in the Sudan'. Safran. p.Law Reform.'Problems'. This content downloaded from 132. cit. Schacht. U. 135-6 idem. Andersonand Coulson. pp. 31-2. Coulson.. 132. cit. 'madaniyyat'. e.Vol. cit. p. Coulson. 90.. 106.op. pt.Studiesin Islanic Historyand Civilization.'The Eclipseof the Patriarchal Islamic Law'. p. 91-2.op.. cit. 58.pp.1961. cit. p.. 304f. Safran.op... Cf. cit. 'Madaniyyat'. 233. cit. cit. Anderson.op. 51.An Introduction. p.pp.93 on Thu.A History. D.'Stabilityand Change in Islamic Law'.op. p.A History.. J. 75.'From Religious'. 221. 6. Coulson. Shalabi.MODERNISTS ANDSECULARIZATION OFISLAMIC LAW 277 56. 64. Coulson. 94f. XXI (1967). D. H.p.op. pp. Schacht. pp.op... Safran. pp. Anderson. idem.op.op. 18 Jul 2013 06:51:04 AM All use subject to JSTOR Terms and Conditions . 134. 39. Vol. Liebesny. Andersonand Coulson.op. pp. 93. Anderson. Cf.N. p. 83. Chehata. 97-8 and 114.Islamic Law. pp.'From Religious'.

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