Law Book Review
Impact of shari'a law
Ridwanul Hoque
This is a book on 'law and society' and shows how the shari'a law has impacted on the lives of Muslim women in South Asian societies. In Bangladesh, laws are rarely analyzed, applied and read with reference to the changing needs of society. This is particularly true of religious/state-made personal laws. Bangladesh's legal system, although it is essentially pluralistic, is heavily oriented in state-centrism, often ignoring that people may make the 'law' and that the law itself lives amongst the people. The law is not merely certain dry black and while letters; it is a process and negotiation. The present book under review succinctly presents how the South Asian secular courts have negotiated the Muslim personal law to adapt it to the present day scenarios.
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Alamgir Muhammad Serajuddin
Muslim family law, secularly courts and Muslim women of South Asia
Karachi: Oxford University Press ((2011),
pp. xvi+310. |
The core premise of the book is whether or not modern scholars or, for that matter, the judges, can interpret the Islamic law or the original sources of it - for example, the Qur'an and sunnah. Throughout Islamic history, qadis (judges) and jurists have acted as agents of socio-legal change. Despite the uniformity of its basic norms, the Islamic legal system is essentially pluralistic as evident in the diversity of its schools of legal thought. This inevitably necessitates the exercise of finding the correct or more appropriate rule of the law in light of a given novel problem through what is known as ijtihad. In the absence of consensus (ijma) on a particular point there is much scope in the law for juristic disagreement (ikhtilaf), allowing the use of “inferential reasoning” to formulate a situation-specific decisive rule. This interpretive diversity offers modern jurists or judges the opportunity to exercise ijtihad or judicial activism. The view that the door (scope) for ijtihad (bab al-ijtihad) became closed fourteen hundred years ago with the authoritative and final interpretations of Islamic rules by ancient jurists, a view once judicially imposed by the then Privy Council (see also the famous Hefzur Rahman Case at the Appellate Division) has now been authoritatively overruled. In effect, most authoritative jurists expressed their views as individual theoreticians, many of them cautioning against implementing them as the only version of Shari'a (An-Na'im 1994). Debates notwithstanding, exercise of judicial activism in adapting the traditional Islamic family law rules to the current needs of the judges' own societies has become entrenched in all South Asian societies.
The author is a leading commentator in South Asia on issues on which he has produced the present monograph, which is in sequence to his earlier landmark work on Shari'a law and society. By studying judicial decisions and modern day statutes, the author argues for a proactive judicial role in order to achieve genuine equality of rights between the sexes or to remove gender discriminations under Muslim family law. He shows that judicial activism in Muslim family law is not only legitimate but also necessary because, political and social contexts make it unlikely that the political lawmakers will legislate to remove gaps in this branch of law.
The book contains a total of six chapters. The first chapter introduces the complex concept of judicial activism firstly from the perspective of public law and then from the perspective Islamic law. In expounding the concept of judicial activism within the context of Muslim family law the author has, however, remained confined to views and analyses of modern-day judges, mostly from the Pakistani judiciary. There ought to be a little longer analysis of power, need, and legitimacy of judges' interpretations of Islamic law and that of course with reference to Islamic law scholars. Second chapter deals with the colonial courts' role in adjudicating Muslim women's rights. Set in a historical background, this chapter lays the foundation for the better understanding of nuances of judicial interpretations of Muslim law in post-1947 South Asia. It is shown here how the judges of the colonial regime misinterpreted or gave distorted meanings both to shari'a and ancient texts like Fatwa e-Alamgiri with long-lasting precedential burden on the post-Independence judges of this region. Chapter 3 is about development of Muslim family law in India through courts since 1947 by way of interpretation of both unofficial shari'a law and official statutory law, which presents a fascinating account of the Indian judicial trend in interpreting statutes and traditional Muslim law rules to expand the ambit of women's rights.
Chapter 4 deals with Muslim family law in Pakistan and the courts' role thereunder. In this region, most notable instances of activist interpretations of Islamic family law are made by Pakistani judges. In Pakistan, the whole legal system at some point became Islamized with Shari'a courts being installed. The impact of this systemic innovation on the development of family law rules has been anaylyzed in this chapter, showing how progressive development of Muslim family law became arrested in Pakistan at some point of time. Chapter 5 is about the development of Muslim family law and the judicial protection of Muslim women in Bangladesh. The issues covered up here are validity of marriage, divorce, maintenance, restitution of conjugal rights, and importantly, the hotly debated issue of fatwa. Under the head of 'tyranny of fatwa', the author's excellent analyses of court cases and the law lead to a conclusion that what has come to be applied against women in the name of fatwa is unlawful.
Chapter 6 is the concluding chapter. In this brief chapter the author sums up his findings and reiterates that judicial activism under Muslim family law has significantly enlarged the women's rights and bridged the gap between their rights in book and their actual pity position in society. Reading the conclusions, the reader may recall how the courts did a great job in establishing, e.g., the women's right to 'divorce' (or to take part in divorce), the right of maintenance, and the right against forced marriage under Islamic law. However, the author thinks that judicial activism is no substitute for systematic legislative action in this field but that it can mobilize the people's consensus that may eventually lead to political actions needed. One can not agree more with the author's conclusion.
The book under review follows the presentational style which is quite uncommon. Instead of presenting Muslim family law issues one after another or writing the book in the format of 'Sections' which most lawyers and judges are perhaps accustomed with, the book presents the issues with both historical and factual underpinnings and insights. The most outstanding aspect is that, the author presents the court cases relatively in factual detail and in their actual social context so that the law is not understood mundanely, divorced from its social, legal, cultural and economic contexts and background. In the recent history of academic wisdom no other book on Islamic family law has been written in such a social and anthropological setting.
I do not really find any major point for criticism. As a Bangladeshi reviewer with a deep interest in the subject myself, I would expected more detailed comments on the leading judicial decisions on the subject by the Supreme Court and a separate chapter on how trial court judges interpret the Muslim family law rules in Bangladesh. Also, in the concluding chapter the author would have profitably made a section by independently comparing the attitude and prejudices of the Bangladeshi, Indian, and Pakistani judges.
The book is an outstanding contribution to the field of comparative Muslim family law in South Asia and will undoubtedly sway the filed for many years to come. I wish, the book will be warmly welcomed by every one interested in Islamic family law of South Asian societies or in the study of law and society generally.
The writer is Associate Professor of Law, University of Dhaka.
