Islamic Law and the Challenge of Modernity

This book includes eight articles on various aspects of Islamic law in themodern world, as well as an introduction by the two editors. The articles grew out of a symposium held at Georgetown University in 2001 under the title of“Arab Legal Systems in Transition.” Despite the book’s title, however, itdeals exclusively with the Arab world.That said, the articles are generally very interesting and, in some cases,provocative. Wael Hallaq’s article is the most provocative, for he suggeststhat because the traditional socioeconomic infrastructure that supported theShari`ah as a social institution in the pre-modern world has vanished in theface of the centralized state, the Shari`ah cannot be restored without revolutionaryinstitutional changes in the Arab state that would, at a minimum,give religious scholars the institutional independence to formulate a legitimatevision of Islamic law. While there can be little disagreement with Hallaq’s observation that thetraditional institutions are gone and will not return, I am not sure why heassumes that the only type of legitimate Islamic law is one formulated by anindependent class of jurists. May it not be the case that a centralized state,subject to democratic controls, could formulate positive legislation that conformsin a meaningful sense with the Shari`ah’s principles? After all, legalmodernity has generally meant the rise of positive law at the expense ofjudge-made law, with the former greatly eclipsing the latter in importanceand prestige. It is highly improbable that Islamic countries could, even ifthey wished, escape the need for ever more positive legislation to cope withthe unique problems posed by modern social organization ...