Layish

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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of the Moderniststo the The Contribution Secularizationof Islamic Law

AharonLayish
The liberally-oriented modernistmovement in Islam, foundedby Muhammad 'Abduh, has failed signally. It has not succeeded in achieving its main objective,viz. reshapingIslamicdoctrineso as to adaptit to the requirements of modern society. Its principalhistoric contributionlies in the field of legal reformism,althoughwe may wonder if its foundingfatherswould be proudof it today. They sincerelystrove to renew Islamiclaw from within through its authorized functionaries.' Not only did this endeavour miscarry, but the mechanism created by ideological infrastructureand technical-procedural them for this purpose caused, on the one hand, a disruptionof traditional Islamic legal doctrine and, on the other, preparedthe ground for intensive secularlegislation.In the following, we shall survey their main parliamentary innovationsand evaluatetheir significancefrom a shar'i point of view and in the context of the secularization of Islamiclaw. I.
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,lit. patch-work). Thus, 'Abduh suggested appointing a committee of 'ulamd' to prepare a comprehensive collection of laws concerning mu'dmaldt, the sphere of relationsbetween man and his fellow, and especiallymattersof personalstatus and waqf, basednot only on the Hanafischool but on other schools as well, as might be socially necessaryor desirable.Such a venture, he thought, might achieveperfectionsince 'the differences [betweenthe schools]are a boon to the umma(ikhtildfuhum rahma lil-umma)',i.e., the variantsmay be prove fruitful in legal respect.He also maintained that affiliationwith the Hanafischool was not a necessaryqualification for the office of qdd.l,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-'),that is to say, the differencesdo not concern basic principlesbut the development of the legal rules. In the matter of the schools, 'Abduh was guided by practical as well as theoretical considerations: a well-ordered, 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; the abandonmentof the Hanafi monopoly might also make it easier to find properly qualified
qadis.2
MuhammadRashid Rida likewise called upon 'ulamd' to free themselves from partisanship for particular schools. He methodically developed and improvedthe doctrineof takhayyurand talfiq.3 A concreteapplicationof this mechanismfor the purposesof reformsin matrimonialmattersmay be found
264
MIDDLE EASTERNSTUDIES
with Qasim Amin. E.g., in denying the validity of taldq divorceslacking the element of intention(niyya),Qasim Amin says that a warrantfor this reform could be found if sharl'a juristswould 'comparethe schools with one another and examine them comprehensively', i.e., as one material source for the creation of law. Similarly,he suggests grantingwomen the right to dissolve their marriage by legal proceedingson grounds recognised by non-Hanafi schools.' (b) Wideningthe Scope of the Doctrineof Siydsa Shar'iyya Siydsa (policy)as a means to introducereformsis nothing new. Accordingto traditionaldoctrine, the ruler may make administrativeregulations in the publicinterestprovidedthere is no substantivederogationfrom the shart'a.In fact, this was the only legitimatemeans of introducingreforms within the framework of the taql[d, the undeviating adherence to the consolidated doctrineof the four orthodox schools. The modernistsconsiderablywidened the applicationof this principle.According to their interpretation, the ruler may restrictthe jurisdictionof the sharl'a courts both as regardsthe subject matter and the substantive law.5 Thus, 'Abduh suggested, among other recommendationsfor reforms in the shar'l judicial system, 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.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.7 The most notableexampleis the modernisticinterpretation of the polygamy verses of the Qur'an (Suira4:3 and 129). Orthodox exegesis limitedthe husband'sduty of equal treatmentof his wives to matterscapable of mechanical measurement, such as maintenance, which includes the dwelling and conjugal duties, while matters of sentiment (mayl al-qalb), incapableof such measurement,were left to the individualconscience and subjectonly to ethicalrules.The modernistswished to prohibitpolygamyby a binding positive provision on the ground that an ordinarymortal cannot be expectedto treat his wives equally in mattersof sentiment.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,i.e., that a free, rationalistic approachto the sourcesof the religiouslaw - the Qur'anand the sunna - should be enabledin orderto adapt it to the requirementsof the time. This demand comprisedtwo proposals,a negative one and a positive one. The modernists wished to get rid of the oppressiveburden of the taqlFd; the selection within this narrow framework did not satisfy them. They also wished to restrictthe validityof the ijmd',the infallible consensus, by means of which the gates of the ijtihdd had been closed. Thus, Rid. wished to limit its validityin mattersof 'ibaddat, the sphere of relationsbetween man and God, to the generationof the Prophet,while in mattersof mu'admaldt, he did not recogniseits validityat all. Therewere those
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.9 The positiveproposalconsistedin the mechanismof the new ijtihdd,which in several materialrespectswas differentfrom the traditionalone. (1) TheInstitutionalization of the Ijtihdd The orthodox ijtihddwas practised by shari'a jurists: independent 'ulamd', fuqahd' and especially muftFs (jurisconsults), outsidethe establishment. Theirviews were not enforcedby the governmentbut acceptedby virtueof their personalscholarlyauthority.'?The modernists, on the other hand, wished to institutionalizethe ijtihdd.True, 'Abduh said that this right was reservedto the authorizedexponents of the sharira: '... and the 'ulamd' are duty-bound to deal with this question [polygamy], especially the Hanafites among them, in whose hands the authority lies (alladhfn bi-yadihim al-amr); their school should give a but we should rememberthat he was personallyassociatedwith decision,'11 the establishmentand, as we shall see below, strove to incorporate the muftfs into the judicial system. Ridalinks the reopeningof the gates of the ijtihddwith the institutionof the Caliphate.In mattersconcerningthe individual,a personalrightof ijtihddwas to be preserved,while in mattersconcerningthe community,the Caliphwas to be the supreme mujtahid,who was to consult with an elite of 'ulamd'- ahl al-hall wa'l-'aqd - authorizedto issue permissions and prohibitions.They were to have the statusof legislators.Ridarecommendedthe establishment of a special seminary for the training of mujtahids,from amongst whom the Caliph was to be elected.12 A contemporary Egyptian jurist, Muhammad Mustafa Shalabi, goes furthest.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)',that is to say, as in the days prior to parliamentary legislation.In fact, he does not admitthat the gatesof the ijtihddhad ever been really closed;13 in his opinion, 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. He thinksthat there were one or more mujtahidsin every generation,but that they operated clandestinely in order to elude the zealots of the taqlfd. Accordingto him, individual(fardi)ijtihddis not enough; what is needed is collective (jamd'il ijtihcd, 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'). Thisbody, which is to be Pan-Islamicin its composition,is to decidetopical questionsand to revise the ijtihad of the early 'ulamd' in accordance with present-dayrequirements. 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. 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 wishes to identifythat legislativebody with the ancient institutionof the shzurd.14 (2) TheInstitutionalisation of the Ijmd' While erodingthe classicalijmd',the
266
modernists,by givingthe ijmd'a new content, stroveto turn it into a principal instrumentfor the renewalof religiouslaw. The traditional ijmd'was general, infallible and negative with regard to the procedural mechanism for its application,as summed up in a saying attributedto the Prophet:'The umma will never be unanimous in a mistakeor an error'."5 An attemptto institutionalize the ijmd' is made in the teachingsof Rida; he needed this mechanism in order to apply the maslaha principle.The body operatingthe ijmd'is to consist of ahl al-hall wa'l-'aqd whom Ridawishes to identify with the ancient shurd. This body, too, 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', which was not possible in the days of the foundersof the schools.'6 The well-known architectof moderncivil codes, 'Abd al-Razzaq al-Sanhflri, who likewise invoked the authorityof 'Abduh, also regardedthe ijmd' as an instrumentfor the renewal (tajdfd)of the sharl'a, 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. 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.'7 The applicationof the new ijmd', which is opposed to orthodox doctrine, raises a series of practicalproblemsnot clearlyansweredby the modernists,such as the identity of the 'ulamd' participatingin the ijmd', the manner of their election, the validity of their decisionsand their relationswith the secularparliaments.'8 (3) The Maslaha The intellectualelement of the traditionalijtihdd,viz. the qiyds, the rational analogy confined to the sphere of the textual sources, is lackingin the new ijtihdd.The modernists,and especiallyRida,estimatedthat in orderto revitalizeIslamiclaw, to make it a rule of life, a humanistic-liberal element was required.Such an elementthey found in the principleof istisldh, the utilitarianhumanjudgmentnot limitedby materialsources.This principle had no recognisedstatusas a 'root' (asi)of law althoughit has a specialstatus in the Malikischool. The purelyutilitarian approachis aliento the sharr'a.The modernistsmade the social motive a main source of inspirationfor reforms. The public interest(maslaha)becamea sourceof law in its own rightas far as it did not conflict with the shari'a. Moreover, it might under certain circumstances(though not in the sphere of the 'ibddat)override an express provision of the textual sources.'9 The maslaha principleunderlies 'Abduh's and Qasim Amin's reforms in mattersof matrimony.Thus, the demand for the prohibitionof polygamy is supportedwith the argumentthat the prventionof injusticeis preferable to its redress and is therefore a matter of maslaha. 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.20 Shalabi,too, links the maslaha with the reopeningof the gates of the ijtihdd. Similarlyto Rida,he holdsthatthe qiydswas in factguidedby the maslaha.He suggests setting up a religious-legal body under state supervisionto apply the maslaha principleso as to adaptthe sharl'a to social requirements; but if the settingup of such a body should prove impossible,the competent'ulamd'are
267
are to carry out that function by issuing fatwas (legal opinions), as was customaryin the past.He fearsthat if neithercourse is adopted,the application of the maslaha principlewill be left to the secularrulers,who will abuse it.2' As stated, the modernistsdid not succeed in shaping a new legal doctrine amalgamating Islam with liberal elements of Western civilization. Their attemptto improvethe doctrineof selectionand reopenthe gates of the ijtihdd by refashioningtraditionalmechanisms was immature,unauthoritativeand unenduring.Theireffortswere not continued,at any ratenot by the authorized exponentsof the sharra. The failureof the modernistsas a movement of the of middlestrata religiousrenewal was due to the lack of a broadinfrastructure and liberal traditions in Islam, the decline of Western liberalism and the disappointment of the expectations placed in it on the ideological and institutionallevel.22As regardslegal reformism,the failure is principallyan intellectualone: the modernistsdid not succeedin freeingthemselvesfrom the religious-ethical approachof Islamic law and developinga positive approach instead.Their mechanismsfor reopeningthe gates of the ijtihdd,i.e., maslaha and ijmd', were hazily conceived and full of contradictionsowing to the difficulty of synthesizing utterly different legal methods. The modernists themselvesas bound by the orthodoxdoctrineof Islamiclaw even in regarded so far as their reform proposalsmeant a departurefrom it.23 Another adverse circumstancewas their ambivalentattitudetowards the West: while drawing inspiration from it, they were frightened by its ideologicalsuperiority.As a result,they becameimmersedin sterileapologetic debatewhich sappedtheirintellectual creativity.Enormousenergieswere, and still are, wasted to prove the superiorityof the sharlra over Western legal systems. Thus, Shalabienthusiastically in contrastto affirmsthat the sharlCa, secularlaws, is realistic(waqi'iyya)and adaptableto social requirements; that inspiration should be drawn from it for modern legislation; that all the principles and theories embodied in Western laws have already been enunciatedin the sharr'a;and that even Westernjurists are full of praise for the latter.24
II.
THE EFFECTSOF LEGAL MODERNISM
(a) The Erosionof Orthodox Doctrine The modernists unwittingly made an appreciable contribution to the secularizationof Islamic law. That contribution was both destructive and constructive:the erosion of traditionalorthodox doctrine,on the one hand, and the supply of a refashioned shar'l mechanism for parliamentary legislation,on the other. As against orthodox doctrine,which treats Islamic law as a celestial,eternalcreationnot changeableby man, the modernistsstress The earthly, human elementsas sources for the developmentof the shari'a.25 weakening of the position of the traditionalijmd' by itself underminedthe authority of orthodox doctrine. 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.26 The modernistsundoubtedlyintendedthat the gates of the ijtihddshould be reopenedby the 'ulamd'andfuqahd', the authorizedexponentsof the sharr'a.
268
the ijmd'and the ijtihadby the At the same time, their desireto institutionalize establishmentof a body - albeit of 'ulamd' - with a clear-cut procedural mechanism for passing decisions in matters of religious law was alien to orthodox doctrine and, on the other hand, close to the concepts of Western parliamentarism. They thus unwittingly legitimizedthe infringementof the sovereigntyof Islamiclaw by the secularlegislator.27 Ridamade an appreciable contribution to the formationof a secularconcept of the legislativeauthority.He distinguishedbetween spirituallaw (in matters of belief and worship) and earthly law (in matters of public concern). The former is not changeableby man. On the other hand, there is nothing to prevent the Caliph from changing the earthly law, to which no religious sanctity attaches, 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 ;28 Rida saw no material difference between the procedural mechanismof the body he had in mind and that of a parliament,but stressed that Islam required the legislator to have special intellectual and moral qualities. Moreover, ahl al-hall wa '-'aqd are also the electors of the true Caliph,that is to say that the sovereigntyof the umma is embodiedin them. This concept comes very close to that of a Western legislativeauthority.29 Qasim Amin most definitelyexpects the reforms suggestedby him, while rooted in Islamic legal sources, to be carriedout by the governmentor the 'holders of power (awliyd' al-umar)',30 i.e., by the Egyptianparliament.Alwent one step furthertowards the secularizationof Islamic law by Sanhuirl the renewedijtihadandjudicialdecisions,on the same footing,and designating besides the parliamentarylegislation, as means to introduce reforms and develop the shan'a. In his opinion, the ijmd' can be applied to these three sources,that is to say that there is a definiteattempthere to shift a traditional level.3'Despitethe importantcontributionof mechanismto the parliamentary the qddfsto the development of the sharta in the earlyperiodof Islam,judicial decisions, let alone secular judicial decisions, had not been recognised as a source of law.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 - far beyond their own original intentions. They expandedthe doctrineof takhayyurand talflqso as to includealso extra-sunni elements. Thus, Rida denouncedsectarianfanaticismas splittingthe Muslim umma; he believed that the true Caliph,who accordingto his doctrine was also the suprememujtahid,was capableof uniting the sunni schools with the shlrtand other non-orthodoxsects. QdsimAmin did not hesitateto invoke the views of the shia and the Hanbali school - without distinctionas to their respective merits - in the matter of the invalidation of triple repudiation. Shalabilikewise refers to the Islamic legal heritage,with its various schools and groupings, including the shra, as one legal aggregatewithin which the legislator has wide freedom of action in applying the doctrine of selection. Moreover,the later modernistsdid not shrink from applyingthis mechanism to secularlegislation.Thus, al-Sanhirl, when about to drafta comprehensive
269
civil law, which was to include also matrimonialmatters,wished to 'take the opportunityof selectingfrom the shar'l books on these questionswhat is most At suited to the spiritof the time, without being tied to a particular school'.33 any rate,the main sourcesof inspirationfor this law are decisionsof Egyptian courtsand modernlegislation.The partassignedto the shart'ain this synthesis is the least importantand sometimes borderson lip service. Shar'f elements were chosen only in so far as they conform to Western legal principles.It seems that we should not over-rate the significance of 'secular Islamic legislation', as some observers are inclined to do. The secular elements Western and the national- are the dominantones.34 in fact widened the applicationof the doctrineof selectionvery Parliaments considerably. They reacheda stage where they did not shrinkfrom combining elements from different schools and jurists (talfiq), sometimes based on conflictinglegal premisses,so as to formulatea complexlegalrule unsupported by and occasionallynot even compatiblewith any of the sources from which the elements had been drawn.35 This method has rightly been describedas elements shrinkfrom incorporating 'legalopportunism'.36 Nor did parliaments of the shl'a into that legal synthesis in so far as they suited the legislator's purpose, 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. They went so farin developingthe talfq that accordingto some observersthe differences between the sunnl schools or betweensunni and shlf' law were almost obliterated.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."3
The siyasa principle,perfectedby the modernists,was used by parliaments in the 20th century to restrictthe power of the sharr'acourts. It supplieda proceduraldevice for the introductionof amendmentsin variousmatrimonial matters,such as the preventionof evasion of the age of marriageprovisionsin Egyptianlegislationand the registrationof divorces in Jordanianlegislation. courts in Moreover,it served as basis for the completeabolitionof the sharfi'a Although Islamiclaw Egypt and the transferof their powers to state courts.38 is supposedto be appliedto mattersof personalstatus even in the latter,it is dispensed by civil judges who in matters of evidence and procedure are supposedto be subjectto secularlaw. True,the qddfshave been incorporated into the statejudicialsystem by the side of the civil judges,but this is supposed to be an arrangement without bindingforce39 and probablyintendedonly for a transitional period. To avoid a confrontation with 'ulamd' circles, the revolutionary regime in Egypt refrains from infringing the sharia by substantivelegislation;at any rate, no law on matrimonialmattershas been passed on Egypt since the coup d'etat, and countriessuch as Syria and Iraq, and even Jordan, are now ahead of Egypt, which was leading in reform measures in the first half of the 20th century, as to liberal, progressive legislation in this sensitive area. The Egyptian authoritiesapparentlyexpect theirwork to be done for them by the civil courtsby way of case law, much as a synthesis was found in BritishIndia between the sharCaand English legal principles(Anglo-Mummadan law): in fact, most reformsin matrimonialand
270
waqf mattersin Indiawere introducedin this way and not by legislation.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,just as they used to do in the shari'a courts.4'But there can be no doubtthat in the long run, as their place is taken by civil judges with a Westernlegal trainingand without a traditionalshar't education,the reform will make itself felt and Islamic law will be exposed to the influenceof Western legal principles.It is anticipated that other Arab countrieswill follow the example of Egypt (and Tunisia)in abolishing the religious courts. The next stage in this development will probably be the preparationof a code of matrimonial law, as part of a comprehensive civil code, for the use of state courts.42 Under these circumstances,it is not surprisingthat the abolition of the sharia courts in Egypt is regardedby some as an historicturning-pointmarkingthe end of the Shar'( State.43 Needless to say that the modernists did not intend to perfect the siydsa principlein order to underminethe sharCa. 'Abduh not only opposed the abolitionof the sharia courts but recommended extendingtheirjurisdiction to civil matters.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. But even among those recommendations there were some that unwittinglycontributed to weaken the position of the sharia. Thus, 'Abduh wished to institutionalize the muftis in the higher grades of the judicial system and give their opinions the force of non-appealable judgments,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.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.Sometimesamendmentswere thus introducedwhose basis in the sourcesis extremelyslender,e.g., the paymentof compensation to divorced women in the Syrian Law of PersonalStatus. The ExplanatoryNote to this law says that a direction of the ruler to abide by something that is recommended (manduib) or permitted, i.e., not prohibited by the sharra (mubdh),is binding (wdjib)on his subjects according to the Hanafi school, providedthere is some usefulness (maslaha)in it within the meaning of the shari'a." The maslaha principlewas so widely extended by the moderniststhat its link with the textual sources was severed and it became a purely utilitarian concept, easy to apply to secular legislation.Social need became a source of law in its own right. In fact, modern parliamentarylegislation has made considerable use of the maslahaprinciple.When no suitableelementscould be found in the Islamic legal heritage, 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. Moreover, where reformscould be based on elementsof the Islamiclegal heritage,it seems that
271
these were chosen according to the degree of their suitabilityto the social purpose pursued by the reformers,without referenceto the factual or legal context from which they were taken.47 Thus, 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, who does not necessarilyreturnto her father'shouse or remarry,i.e., of a social motive patentlyconffictingwith the shart'aconcept of maintenanceduringthe waiting-period ('idda).To legitimizeit, the legislator wished to base the revolutionaryinnovationon generalshar'F principles,such as the prohibitionof causing damage (i.e., a kind of maslaha rule) and the mut'a mentionedin the Qur'an(Sura 2:236 and 241)." In Syriaand Iraq,polygamy has been prohibitedby daringpenal legislation in relianceon the maslaha principleand on the modernisticinterpretation of the polygamy verses. At the same time, 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.49 have here, in a way, the adoptionof a line suggestedby the modernists.Qasim Amin suggestedempoweringthe qddtto prohibitpolygamousmarriages at his discretion in reliance on 'the interest of the umma', as he understood it.5" Sa'udi Arabia has granted to foreign companies oil concessions couched in shar'iterms and basedon the maslahadoctrine,which is sufficiently flexibleto The intensive use of legitimizeany contractrequiredby modern conditions.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, the analogy confined to the textual sources.52
III.
EVALUATIONSOF LEGAL REFORMISM
Thereare observerswho interpret 'religiouslegislation'in matrimonial matters as a development within the sharf'a. In their opinion, 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.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. As already hinted above, the applicationof this mechanism- in its modern version- is easiertoday, underconditionsof highly-developed technologyand communications, than at any time in the past. Those observers are only dividedover the identification of manifestations of the reopeningof the gatesof Thus, e.g., Anderson refers to the ban on polygamy (in Syria, Iraq, ijtihdd. Tunisia and Morocco) and the denial of the effect of a formula of divorce pronouncedoutsidea courtof law (in Tunisia,Iraq,Pakistanand Iran)as cases in point, and Coulson mentionsthe ban on polygamy and compensationto a divorcedwife (in Syria)in the same context. In all these cases, so it is affirmed, the reformersenactedpositiveprovisionsof law in relianceon an independent interpretation of Qur'anicprecepts."
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Moreover,Coulsonclaims that substantiveand formalreforms,such as the of appealproceedingsand drawing-upof Western-type codes, the introduction the abolitionof the shart'a courts, are tantamountto outward manifestations of changes in Islamic legal philosophy: the sharia is said to have lost its characteras an eternal,immutablelaw and, except for mattersof worship, to be treatedas a functionof social conditions,which by their natureare liableto change. Such new departure,it is claimed, opens up possibilities for farreaching reforms, providedthey do not conflict with the sources of Islamic law; and as for mattersnot dealtwith in the textualsources,it is saidthat there at all on reforms,and that social need alone is sufficientto is now no restriction legitimizethem. This evaluation implies that Islam is on the thresholdof an actual reformation.The situationhas been viewed in terms of a synthesis of Islamic and Western law, similar to the process which occurred in the formativeperiodof the former.For the purposesof such a synthesis,it would firsthave been necessaryto identifythe essentialprinciplesof the Islamiclegal heritage.54 Although the legislatorstry to base their reforms on the teachings and prestigeof the modernists,it seems to us that modern legislationshould be viewed as a developmentoutsideIslamiclaw. Althoughthe directapproachof the reformersto the textual sources and their independentinterpretation of to ijtihddprocesses,this resemblance is Qur'anicverses bearsome resemblance purely technical. There are material differences as to the technique of approachingthe Qur'an and the sunna, the sources of inspirationand the motivation,subjectsand characterof the reforms:the approachto the textual sources is not effectedby means of the deductiveqiyds but of the utilitarian maslaha; some of the reforms have no basis at all in these sources; the reformistdrive is chiefly due to Western ideas and pressurescreatedby the disequilibrationof Muslim society in consequence of modernizationand Westernisation.'s The ijtihdd in its classical meaning is the work of muftis outside the establishment.Islam knows no mundane legislativeauthority.The sharifa as an eternallaw is above society, and the ruler is also subjectto it. On the other hand, the 'religious legislation' which uses mechanisms with religious connotationsis first and foremostthe work of sovereign secularparliaments. These set limits to the sharfa and decidewhich of its elementsto receive into the frameworkof statutorylaw. The reformersare mostly professional jurists who have had a modern legal training;The referenceto the modernistswas intendedto facilitatethe impositionof the reformsupon the exponentsof the shari'a, especiallyupon the shar'ijudicialsystem in so faras it stillexisted. But the reforms rely on governmental,not religious sanctions, and the rather forced adherenceto the Islamic sources from which they were taken was severed in the process of legislation; they have an autonomous existence, independent of those sources, and must be interpretedsolely within the framework of statutory legislation.56It should be noted that a reform restrictingthe right of taldq, linking it with legal proceedings, was first introduced by the Law of Personal Status of the Druze Community in Lebanon,of 1948, which makesthe validityof taldqconditionalon a decreeof the qddl; in this case, the questionwhethera reopeningof the gatesof ijtihddis involved obviously does not arise.57 Nor should the dozens of legal circulars
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issued by the GrandQddiof Sudan in mattersof administration of justice and the applicationof substantivelaw be viewed as the legislativeact of a religiouslegal functionary;they were intendedto confirmthe rightof the rulerto limit the powers of the religiouscourts - through one of his officials- by virtue of the siydsa principle.58 Moreover, Chehata even doubts the orthodoxy of takhayyur and talfiq since, in his opinion, each of the Sunni schools is homogeneous and autonomous. Although impressive reforms have been introducedby these techniquesthroughtheir pragmaticapproach,he rejectsthem for purely legal reasons: the dangers of mixing concepts from doctrinesdifferentas to their historical and disciplinary heritage. In his opinion, Arab legislators, by the Islamiclegalheritagewith topicalconsiderations, have created svnthetizing a droit transitoire;he is undoubtedlyreferringto an experimentmade in a secular context.59 The reforms introduced by means of procedural devices and penal legislation, e.g., in mattersof the age of marriageand of polygamy, do not terminatethe substantivevalidity of the sharlta as crystallizedin the taqlfd, and the question of the iftihddis thus irrelevant.On the other hand, many mattersdesignedto improvethe legal statusof women reformsin matrimonial and to equalisethem with men - especiallythe trendtowards a monogamous marriage, the curtailmentof the husband's right of taldq with a view to replacingthe latter with divorce by legal proceedings,and the equalityof the sexes in succession - erode the patrilinealand patriarchalstructureof the Muslim family, embodiedin the sharra and sanctifiedby ethical commands. This family is based on the principlesof the superiorityof men over women and the precedence of agnatic over cognatic relatives. These principlesare legitimized by many utterances in the Qur'an. The modem reforms in matrimoniallaw reflectchanges in the strucureof the family, especiallythe transitionfrom the extendedto the nuclearfamily and the social liberationof women, and accord with the norms of an increasinglyWesternisedsociety which are incompatiblewith the family concept of Islamic law.60 In sum, the legal reformsare deliberately secularlegislativeacts, carriedout in a traditionalmedium but outside Islamiclaw.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, they ostensiblybase them on the Islamic legal heritage as a manifestation of the Arab national patrimony;62 technicalresemblanceto the ijtihddmay createthe illusion that they are an internaloverhaulof the sharia. The parliaments wish to avoid, as far as possible, the creation of ideological indebtednessto the West. Thus, Shalabi calls for emancipationfrom 'legal imperialism',i.e., Western laws imposedon Arabcountriesduringthe periodof colonialrule, as a conditionof full national liberation;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.63 On the other hand, the applicationof traditionalmechanisms in secular legislationwas to mitigateas far as possiblethe antagonismof the 'ulamd'and conservativecirclesto reformsin Islamiclaw. Referenceto the modernistsin
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the explanatorynotes to the new matrimoniallaws was to give the reformsa shar'Fcolouring and thus make them acceptableto a potentialopposition.64 Phenomenaof this kindshould be treatedas lip service,much like the declared status of Islam as the state religion and of the sharia as the main source of Arab countries.65 legislationin the constitutionsof several Mediterranean In this connection,we should regardproceduraldevices and penal legislationas means to introducereformsinvolving no confrontation.The approachof the reformers is pragmatic, not theoretical: they want social results with a minimum risk. Thus, the discretion of the qdd(s was widened to an unprecedented degreein modernlegislationin matterssuch as marriagein the in age betweenthe spouses; permissionfor polygamy; case of greatdifferences compensationto divorcedwomen and custody of the childrenafterexpiry of the period of hadana, 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).66 The attitudeof the 'ulama'towardslegal reformismis also significantin this connection. The conservativeones stronglyopposed the reforms,which they regardedas deliberateattemptsto seculariseIslamiclaw; in their opinion, the neo-ijtihdd was a device to bring this about and the reform processes underminedthe foundations of the Muslim faith.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'.68 Still,there were 'ulamd'who adopteda passiveattitudetowardsthe reforms or even supportedthem to varying degrees. 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 - that stubbornoppositionon their part would mean complete abolition of the sharia with all this implied in regardto theireconomic,social and politicalposition.Neithergroupseemedto be aware of the long-rangesignificanceof the reforms.69 Thus, Rida criticized the al-Azhar 'ulamd' of his time for not opposing the suggestionto cast the shar'( matrimoniallaws, which in his opinion were 'ibdddt, into the mould of a statute and to abolish the shart'a courts, although their livelihoods and prestige were at stake; he also charged that they neglected their duty of adaptingthe sharVato social requirementsand thereby became responsible, like the exponents of Westernization for the loss of the state's (mutafarnijun), Islamiccharacter.70 The 'ulamd'had no constructiveproposalsfor reform,and this probablymade it easierto securetheir acquiescencein the secularistpolicy of the regime.71
NOTES 1. For an appraisalof the fathersof modernism,Jamal al-Din al-Afghaniand Muhammad 'Abduh, in the context of heterodoxy and contemporarypolitics see E. Kedourie,Afghani and 'Abduh;an Essay on Religious Unbeliefand PoliticalActivismin ModernIslam, London, 1966. 2. Muhammad'Abduh, TaqrfrfiIslah al-Mahdkimal-Shar'iyya, Cairo, 1900, pp. V-VII, 15, 38-40 and 64-6; A. Hourani,Arabic Thoughtin the LiberalAge 1798-1939, London, 1967, pp. 152-3. 3. MuhammadRashidRid, Al-Khildfaaw al-Imdmaal-'Uzmd, Cairo, 1923, p. 66; Hourani, op. cit., pp. 236-7. 4. Q6sim Amin, Tahrtral-Mara, second ed., Cairo, 1941, pp. 154 and 161-2. 5. J. Schacht,An Introduction to IslamicLaw, O.U.P., 1964, p. 54; N. J. Coulson,Successionin
MODERNISTS ANDSECULARIZATION OFISLAMIC LAW
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the MuslimFamily, C.U.P., 1971, p. 137; J. N. D. Andersonin consultationwith N. J. Coulson, 'Modernization: IslamicLaw', in Symposiumon IslamicNorthernAfrica, London, 14 Sept. 1971, pp. 1-2; Norman Anderson,Law Reformin the Muslim World,London, 1976, p. 12. 6. 'Abduh, op. cit., pp. 34 and 66. 7. Schacht,op. cit., pp. 4 and 120f. 8. Muhammad'Abduh and MuhammadRashidRida, Tafsfral-Qur'anal-Haklm, Cairo,Vol. IV, pp. 348-9; Amin, op. cit., pp. 138-40; H. A. R. Gibb,ModernTrendsin Islam,Chicago, 1947, p. 135; Hourani,op. cit., p. 166. 9. Gibb,op. cit., p. 13; Hourani,op. cit., pp. 230 and 233-4; N. J. Coulson,A Historyof Islamic Law, Edinburgh, 1964, pp. 202-3. 10. S. D. Goiteinand A. Ben Shemesh,MuslimLaw in Israel(in Hebrew),Jerusalem,1957, pp. 21-2 and 25. 11. 'Abduh and Rida, op. cit., pp. 349-50. 12. Rida, Al-Khildfa,pp. 70 and 79; M. H. Kerr, Islamic Reform: The Politicaland Legal Theoriesof Muhammad'Abduhand Rashid Ridd, Berkeleyand Los Angeles, 1966, pp. 165-6; Hourani,op. cit., pp. 240 and 244. 13. Cf. Y. Meron, 'The Developmentof Legal Thoughtin HanafiTexts', Studia Islamica, ex fasciculo XXX, pp. 90f. 14. Muhammad Mustafa Shalabi, Al-Fiqh al-.'sldmt bayn al-Mithdliyya wa 'l-Wdqi'iyya, Alexandria,1960, pp. 189-91. 15. Kerr,op.cit.,pp. 10-1. 16. Rida, Al-Khildfa,pp. 80 and 102. 17. 'Abd al-Razzaqal-Sanhuri,'Wujub Tanqihal-Qanunal-Madanial-Misriwa-'ala ay Asas yakfn hadhaal-Tanqih',Majallatal-Qdnuin wa 'l-Iqtisdd,Vol. VI, pp. 115-16. See also 'Abd alRazzaqal-Sanhuriwa-Ahmad Abu Satit, Usuil al-Qdnan, Cairo, 1941, p. 98. 18. J. N. D. Anderson and N. J. Coulson, Islamic Law in Contemporary Cultural Change, Munchen, 1967, p. 88. 19. Schacht,op. cit., p. 61; Kerr,op. cit., pp. 55-6, 76, 80, 187, 189, 194-97, 201, 204-5 and 207; Hourani,op cit., pp. 151-2 and 166. 20. 'Abduh and Ridi, op. cit., pp. 350-1; Amin, op. cit., pp. 140, 147, 155-6, 158 and 161; Kerr,op. cit., pp. 97f. 21. Shalabi,op. cit., pp. 178, 180 and 192-3. 22. W. C. Smith, Islam in ModernHistory,third printing,New York, 1963, pp. 67, 72-3 and 75-8. 23. Kerr,op. cit.,pp. 6-11, 15, 17and 201. 24. Shalabi,op. cit., pp. 4, 5, 183 and 187. Cf. Smith,op. cit., pp. 91-2, 126 and 155; Gibb, op. cit., p. 44. It is interestingto note that similar assertionshave recently been made by Sa'udi 'ulamd'. In a dialogue between them and Europeanscholarsand juristsin Riyad on March 22, 1972, they claimed that Islam was differentfrom other religionsin that it was compatiblewith science and human reason; that it comprised everything, and more, than mortal man could comprehend;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. See Nadwa 'llmiyya hawla al-Sharf a al-Isldmiyyawa-Huquiq al-Insdnfi al-Isldm, Beirut, 1973, pp. 12-14. See also Hava Lazarus-Yafeh, 'Contemporary ReligiousThoughtamong the 'Ulamd'of alAzhar', Asian and AfricanStudies, Vol. VII (1971), pp. 211-36. 25. The modernists were preceded in this respect by Ottoman 'ulamd' in the 15th-17th centuries.They, too - unconsciously- provided a shar't legitimationand a mechanism(siyasa of secularlegislation(the qdnuin shar'iyya,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.See U. Heyd, Studiesin OldOttoman Criminal Law, ed. by V. L. Menage, London, 1973, pp. 198ff.; Schacht,op. cit., p. 91. 26. Gibb, op. cit., p. 34; N. Safran,'The Abolitionof the Shar'iCourtsin Egypt', TheMuslim World,Vol. XLVIII.(1958), p. 133; M. Khadduri,'From Religiousto National Law', in R. N. Anshen (ed.), Mid-East: World-Center, Yesterday,Today, and Tomorrow, New York, 1956, p. 224. 27. Hourani,op. cit., p. 234. 2 8. Kerr,op cit., pp. 177 and 194-5. 29. Rida,Al-Khildfa,pp. 59 and 80; Kerr,op. cit., pp. 197 and 203. 30. Amin, op. cit., pp. 156-7 and 164. and Abu Satit, op. cit., pp. 121-2. 3 1. Al-Sanhuirl
276
32. Goitein and Ben Shemesh,op. cit., pp. 25-6. 33. Rida,Al-Khildfa,p. 105; Hourani,op. cit., p. 230; Amin, op. cit., pp. 151-2; Shalabi,op. cit., pp. 184 and 188; Al-Sanhiri, op. cit., p. 60. 34. Al-Sanhfiri,op. cit., pp. 77ff.; Anderson,Law Reform,pp. 83 and 89f.; idem, 'The Shari'a and the Civil Law (The DebtOwedby the New CivilCodesof Egypt and Syriato the Shari'a)',The IslamicQuarterly,Vol. I, No. 1 (1954), pp. 30f., and 45f.; Coulson,A History,p. 153; J. Schacht, 'Problems of Modern Islamic Legislation', Studia Islamica, Vol. XII (1960), pp, 120-21; Khadduri,op. cit., pp. 231f.; idem, 'Free Thought and Secularism',in his Political Trendsin the Arab World;The Role of Ideas and Ideals in Politics,Baltimoreand London, 1970, pp. 242-4; Kerr,op. cit., p. 16. 35. Coulson,A History,pp. 197-201; Anderson,'Modernization', p. 2; idem,Law Reform,pp. 51ff. 36. Coulson, A History,p. 221. 37. Idem, Conflicts and Tensionsin Islamic Jurisprudence, Chicago, 1969, pp 33f.; Anderson and Coulson,op. cit., pp. 86 and 90; Anderson,Law Reform,pp. 41, 42, 51, 54, 71, 133, 147 and 150. 38. Coulson, A History,pp. 172f.; ChafikChehata,Droit Musulman;Application au ProcheOrient,Paris, 1970, p. 93. 39. Law Number462, 1955 Concerningthe Abolitionof the Sharia Courtsand the Religious to the National Courts,art. 4. Courtsand the Transferof their Jurisdiction 40. Coulson,A History,pp. 164f.; Schacht,An Introduction, pp. 94f.; idem, 'Problems',p. I 12. Another reason for the discontinuanceof legal reformism in post-revolutionary Egypt was, in Anderson'sview, the fear that the new reforms would not be sufficiently radicalcomparedwith those in countrieslike Tunisiaand Syria. See Anderson, Law Reform,pp. 221 and 222. On the advantagesof reformsthroughcase law see ibid., pp. 78 and 82. 41. For an up-to-dateconfirmation of this evaluationsee Anderson,Law Reform,pp. 220 and 221. 42. J. N. D. Anderson,IslamicLaw in the ModernWorld,London, 1959, pp. 95-6; idem,Law Reform,pp. 170-1; Andersonand Coulson, op. cit., p. 87; Safran,op. cit., pp. 22-3 and 26-7. 43. Safran,op. cit., pp. 20, 26, 28 and 133-4. 44. 'Abduh, op. cit., pp. IV, 29-30 and 32-3; Muhammad Rashid Rida, 'MadaniyyatalQawanin (wa-Sa'y al-Mutafarnijin li-Nabdh Baqiyyatal-Shari'awa-Hadamal-Din)', al-Mandr, Vol. XXIII, pp. 539-42. 45. Al-Sanhuri,op. cit., p. 61; al-Sanhiri and Abu Satit, op. cit., p. 264. 46. ExplanatoryNote to the Syrian Law of PersonalStatus;J. N. D. Anderson, 'The Syrian Law of PersonalStatus',Bulletinof the Schoolof Orientaland AfricanStudies,Vol. XVII (1955), p. 42; idem, Law Reform,pp. 65ff.; Coulson, Succession,p. 137. Cf. Heyd, op. cit., pp. 185-6. 47. Coulson, Succession,p. 6. 48. The SyrianLaw of PersonalStatus,art. 117; See Explanatory Note to this Law; Anderson, 'The SyrianLaw' pp. 41-2; Coulson,A History,pp. 209-10 and 222. See also Explanatory Note to the OttomanFamily Rights Law concerningthe increaseof the age of maturity. 49. ExplanatoryNote to the Syrian Law of PersonalStatus; Anderson, 'The Syrian Law', p. 36; D. Hinchcliffe,'Polygamy in Traditionaland ContemporaryIslamic Law', Islam and the ModernAge, Vol. 1, No. 3, (1970), pp. 20-2; Anderson,Law Reform,pp. 110ff. 50. Amin, op. cit., p. 140. 51. Anderson,Law Reform,pp. 186-7. 52. Kerr,op. cit., pp. 194-5. 53. It should be noted that the ban on polygamy in Druze religious law, originatingin the Isma'iliyya(it is ascribedto the Fatimidal-Mu'izzli-Din Allah),is likewise basedon a 'modernist' of the polygamy verses of the Qur'an. See A. Layish, 'Polygamy and the Druze interpretation Family in Israel',Journal of the AmericanOrientalSociety, (in press)and the sources indicated there. 54. Anderson,Law Reform,pp. 7 and 58ff.; Coulson,A History,pp. 206-10; idem, Conflicts, pp. 102-4 and 115-16; idem, Succession, pp. 6 and 138; Anderson and Coulson, op. cit., pp. 87-8; J. Schacht,'Theologyand Law in Islam', in G. E. von Grunebaum (ed.), Theology and Law in Islam, Wiesbaden, 1971, p. 22; Gibb, op. cit., p. 92; Kerr,op. cit., pp. 189 and 198; Khadduri, 'From Religious', p. 230; J. Esposito, Muslim Family Law in Egypt and Pakistan: A Critical Analysisof Legal Reform,Its Sources and Methodological Problems.A Dissertation submittedto the Temple Universityfor the Degree of Doctor of Philosophy, 1974, pp. 249 and 258ff. 55. Cf. Anderson,Law Reform,p. 195.
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56. See Rida, 'Madaniyyat', pp. 543-6; Coulson,A History,p. 221; Andersonand Coulson,op. cit., pp. 87 and 90; Anderson,Law Reform, pp. 94f.; Schacht,An Introduction, p. 106; idem, 'Problems',pp. 112f.; Safran,op. cit., p. 133. 57. J. N. D. Anderson,'The PersonalLaw of the DruzeCommunity',Die Weltdes Islams,N. S. II (1952), p. 83. 58. J. N. D. Anderson,Islamic Law in Africa, new impression,London, 1970, pp. 304f. and 31 1; idem, 'Recent Developmentsin Shari'aLaw in the Sudan', Sudan Notes and Records,Vol. XXXI, pt. I (1950), pp. 91-2. 59. Chehata,op. cit., pp. 121 and 122. Cf., on the other hand, H. J. Liebesny,'Stabilityand Change in Islamic Law', TheMiddleEast Journal, Vol. XXI (1967), p. 29. 60. J. N. D. Anderson,'The Eclipseof the Patriarchal Islamic Law', Family in Contemporary in his (ed.),FamilyLaw in Asia and Africa,London, 1968, pp. 221-34; Coulson,A History,p. 221; idem, Succession,pp. 135-6 idem, Conflicts, pp. 51, 97-8 and 114. 61. Schacht,An Introduction, p. 107; Safran,op. cit., p. 134. 62. Anderson,Islamic Law, p. 93; Khadduri,'From Religious',p. 233. 63. Shalabi,op. cit., pp. 3 and 183; Coulson, Conflicts,p. 39; Safran,op. cit., pp. 22-3 and 26-7. 64. Coulson, A History,p. 181; Liebesny,op. cit., pp. 31-2. 65. Schacht,'Problems',p. 122; Khadduri,'From Religious', p. 229; Safran,op. cit., p. 132. of 1964, art. 3 (2); the Constitution See, e.g., the SyrianProvisionalConstitution of the Federation of Arab Republics(Syria,Libyaand Egypt)of 1971, art. 6; and the Constitution of the Egyptian Arab Republicof 1971, art. 2. 66. Coulson, Conflicts,p. 114; Anderson,Law Reform, p. 221; Liebesny,op. cit., p. 34. Cf. Heyd, op. cit., pp. 177-8 and 215-19. 67. Coulson,op. cit., pp. I 12-1 3; idem,A History,pp. 1606 1; Andersonand Coulson,op. cit., p. 90. 68. Safran,op. cit., pp. 25-6. 69. Anderson, Law Reform,pp. 75, 155 and 223; Andersonand Coulson,op. cit., p. 86; Safran, op. cit., p. 134. Cf. U. Heyd, 'The Ottoman'Ulema and Westernization in the Time of Selim III and Mahmud II', in his (ed.),Studiesin Islanic Historyand Civilization, ScriptaHierosolymitana, Vol. IX, Jerusalem,1961, pp. 63-96. 70. Rida, 'madaniyyat',pp, 540-3. 71. Khadduri,'From Religious',p. 229; Safran,op. cit., pp. 134-5.

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

of the Moderniststo the The Contribution Secularizationof Islamic Law

MODERNISTSAND SECULARIZATION OF ISLAMICLAW

MODERNISTSAND SECULARIZATION OF ISLAMICLAW

MODERNISTSAND SECULARIZATION OF ISLAMICLAW

MODERNISTSAND SECULARIZATION OF ISLAMICLAW

MODERNISTSAND SECULARIZATION OF ISLAMICLAW

MODERNISTS ANDSECULARIZATION OFISLAMIC LAW

MODERNISTS ANDSECULARIZATION OFISLAMIC LAW

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