Bayt al-Fatwa

Dr. Tarek Elgawhary

Codification of Islamic law is the process by which the various rulings of the Sharī‘a (al-aḥkām al-shar‘iyya) of a particular subject matter (property, torts, family law, etc.) are collected and restated in a succinct manner to form a legal code that has full effect within a given political jurisdiction. In the modern context the wording used in the restating of these laws and the outline of the code itself often overlaps with language and outlines of western European codes. The nature of the legal code is that it renders all other forms of law void and claims complete jurisdiction for itself.

This type of codification was not common of pre-modern Islamic law, which was largely scholastic and discursive. There were, however, early attempts at providing compendiums of law that made popular and sound opinions of a given legal school (madhhab) more accessible. However, these efforts are more accurately called legal consolidation and not legal codification, which is largely an outgrowth of the colonial enterprise (India and the Malay world) as well as the push for modernization and legal reform (the Ottoman Empire and North Africa). The process of codification of Islamic law began in the first of half of the 19^th century and continued until through the middle of the 20^th century when many Muslim nation states completed their process of legal codification and unified their judicial systems.

Early Efforts of Codification

The first recorded to have pressed for legal codification of Islamic law was Ibn al-Muqaffa‘ (A.H. 142/759 C.E.), the Abbasid literary scholar. Upon observing the great differences that existed between Muslims sometimes leading to civil strife and even murder based on religious justifications, Ibn al-Muqaffa‘ wrote a letter to the ‘Abbasid Caliph Abū J‘afar al-Manṣūr (r. 754-775) suggesting that he compile a book collecting the various rulings on various legal topics and unifying them as one code. This story does not represent codification as defined above per se, but rather demonstrates the early need to make Islamic law more accessible for official state legislation. There is no evidence that the Abbasid’s or any subsequent dynasty adopted Ibn al-Muqaffa‘’s recommendations. There were other efforts to consolidate Islamic law, however, and provide works that contained the soundest or most agreed upon opinions of a given school on a given subject. One such project in the later period was the 18^th century al-Fatāwa al-Hindiyya, a digest of Ḥanafī positions, commissioned by the Mughul ruler Aurangzeb (r. 1754-1760). It was an unprecedented effort that brought together several hundred jurists and scholars to debate the various points of law to arrive at these positions.

The experiment with formal codification of Islamic law, however, first took place under the British occupation of India. Rather than supplant local laws with British ones, the British colonial forces, under the leadership of Governor Hastings (in office 1773-85), slowly developed a hybrid legal system. British legal administrators oversaw British judges who themselves consulted with local Muslim jurists (both qādis and muftis) with regard to the minutiae of Islamic law. As this system proved too complicated for British administrators over time, the famous orientalist Sir William Jones (1746-94) offered that a code be drafted to incorporate both Muslim and Hindu law. To make Islamic law more accessible, a series of English translations began of key Ḥanafī texts. Charles Hamilton translated al-Marghīnānī’s Hidāya in 1791 and in 1792 Jones himself translated al-Sirājiyya in inheritance law. Neil Baille added to these translations in 1865 with his A Digest of Moohummuddan Law, which was a selected translation of parts of al-Fatāwa a-Hindiyya. These translations provided the substrate for what was to become the Anglo-Muhammadan Law; a purely invented code of law that took positions found in the Ḥanafī School and merged them with British laws, the latter being more prominent than the former.

Another early experiment in codification of Sharī‘a took place under the Dutch in Java. Like India, Javanese society was syncretic. Local custom and tradition (adat) ran alongside Islamic law. The Dutch, unlike the British, were not interested in a hybrid system or a codification of local laws. Their approach was to create codes that governed Dutch settlers that would eventually affect natives. So, by 1848 the Dutch had issued codes related to civil procedures (Burgelijk) and criminal procedures (Strafvorderong). A penal code for natives came later in 1873 that was nearly identical to the Dutch national penal code. As was the case in British India, Dutch colonial officials controlled local Sharī‘a and adat courts, which gave final authority to Dutch judges and by default Dutch law. Rather than provide translations of Islamic law to Dutch jurists, the notable exception is that al-Nawāwī’s Minhāj al-Ṭālibīn was translated into French by L.W.C. van den Berg in 1882 which was itself translated into English by E.C. Howard in 1914, the Dutch preferred to promote adat law and courts over Sharī‘a. The Dutch study of adat law, termed adatrecht, was spearheaded by two famous Dutch orientalists: Cornelius van Vollenhoven (d. 1933) author of Het Adatrecht van Nederlandsch-Indië as well as Christian Snouck Hurgronje (d. 1936). Research and writings on adat slowly morphed into codes that were used by both the Dutch and Indonesian jurists. By1927 the Dutch government had officially recognized adat as law, not the Sharī‘a.

In the Ottoman Empire, legal reforms began in the early 1830s. By 1840 there was a codified Penal Code based on Islamic Law. A Code of Commerce, taken from European codes, followed in 1850. The most famous, however, of all the Ottoman codifications was the Mecelle-i Ahkām-i Adilye (Ar: Majallat al-Aḥkām al-‘Adiliyya) issued between 1870-77 and containing 1,851 articles pertaining to commercial transactions, oaths, and court procedures as found in the Ḥanafī School. The Mecelle was produced by a committee of jurists headed by Ahmet Çevdet Pasha (d. 1895) and was meant to make the Sharī‘a more accessible for courts and to ward off claims that the Ottomans were using European codes instead of Islamic ones. This was the first attempt within the Ottoman world to codify Islamic law proper. Its importance spread beyond the Anatolian context, however, and it was the subject of numerous commentaries in both Turkish and Arabic. These new codes were introduced into the Niẓāmiyye that were established as a result of the Tanzimāt reforms that began in 1839.

Egypt was also a major center for legal reform throughout this period. Like many other areas under colonial rule and influence, Egypt’s legal system was plural and not singular, containing a mixed array of native and colonial legal jurisdictions. Accordingly, there were multiple efforts of codification occurring at the same time. There was an effort to create a national code to be administrated by a new national court system (al-maḥākim al-ahliyya), and there was the area of personal status law (al-aḥwāl al-shakhṣiyya) that was administrated by the Sharī‘a courts. In 1866 Rifā‘a al-Ṭahṭāwī (d. 1873), the polymath Azharite scholar, translated and published the French Civil Code, and in 1868 he published a translation of French Trade Law. By the 1870s Khedive Ismā‘il (r. 1863-79) was asking various ‘ulamā’ for their thoughts and opinions on the viability of codification of Islamic law and adopting aspects of French law. Ṭahṭāwī’s famous student and one time Minister of Justice Qadrī Pasha (d. 1886) took an interest in codification and provided three works of codified Islamic laws: al-Aḥkām al-Shar‘iyya fi’l-Aḥwāl al-Shakhṣiyya (a collection of Ḥanafī rulings related to personal status laws) published in 1880, Murshid al-Ḥayrān ilā Ma‘rifat Aḥwāl al-Insān (a collection of Ḥanafī rulings pertaining to trade) published in 1890, and Qānūn al-‘Adl wa al-Inṣāf lil qadā’ ‘alā Mushkilāt al-Awqāf (a work seeking to codify rulings of religious endowments) published in 1894. In 1876 the Mixed Courts were established in Egypt, which provided jurisdiction to non-natives and was claimed to be an improvement on the Ottoman capitulations that Egypt had inherited. An eclectic-European code was drafted to govern these courts, mostly influenced by French codes. The significance of the Mixed Court Code is that it become the major influence on the drafting of Egypt’s civil code in 1881.

Codification of Personal Status Law

By the turn of the 20^th century, colonial powers had dominated areas of commercial and criminal law throughout large parts of the Muslim world. While there were some elements of Islamic law that were retained as many scholars have demonstrated, the major drive and model for these types of codification were European codes. As these areas of the law became settled, attention was given to a new area of law and one that had up until the turn of the century been the exclusive domain of the ‘ulamā’ and the various Sharī‘a courts, personal status law. Personal status laws were laws pertaining to marriage, divorce, custody, inheritance, religious endowments, and gifts.

In the Ottoman Empire, personal status laws were codified in 1917 as the Ottoman Law of Family Rights. Although Turkey officially stopped implementing Islamic law in 1926, the 1917 code was adopted in the Levant. Unlike earlier Ottoman efforts at codification, with the exception of the Mecelle, the Law of Family Rights was purely based on Sharī‘a.

Egypt followed suit with a reordering of the Sharī‘a courts from a procedures point of view in 1857. By 1880, it was ordered that the Sharī‘a courts would follow the most agreed upon opinions of the Ḥanafī School (arjaḥ aqwāl al-ḥanafiyya). This set in motion the formation of the Committee on Personal Status Law that was to provide a codification of these opinions. The committee was mixed with secular trained lawyers, a profession that arose in the late 19the century, and ‘ulamā’. The code that was established was modified with specific laws throughout the early decades of the 1900s. When the Sharī‘a courts were disbanded in 1955, the Code of Personal Status Law was subsumed into the national code that was drafted by ‘Abd al-Razzāq al-Sanhūrī in 1948, an improvement on the code of 1881. Modifications to areas of personal status laws continued until the modern era.

A similar organized process took place in Morocco. Frustrated by the French imposed Dahir berbére of 1930 which cast aside local customs and Sharī‘a law, Moroccan reformers turned to legal codification after their independence from France in 1956. King Muhammad V (r. 1927-61) established a committee to produce a personal status code headed by ‘Allal al-Fāsī (d. 1974), the well-known resistance fighter and founder of the Istiqlal party. The initial code was completed in 1957 and was titled Mudawwanat al-Aḥwāl al-Shakhṣiyya. While this code was to be based on the Mālikī School, in similar fashion to the Egyptian code with respect to Ḥanafī positions, it also incorporated weaker positions to satisfy modern concerns. The code of 1957 was revised and updated many times up until recent times.

‘Ulamā’ reactions to codification

While the process of codification of law, both civil and personal status, is today a forgone conclusion throughout the Muslim world, such was not the case throughout the 19^th and early parts of the 20^th century. It would be correct to say that the process of codification was “forced” on Muslim countries as a result of colonization (both direct and indirect) as well as the push for reform and modernization. While the ‘ulamā’ were largely excluded from the various codification efforts of civil law (commercial codes, penal codes, etc.) they were heavily involved in the codification of personal status law, which became the last major area of law dominated exclusively by the Sharī‘a.

Opinions of the ‘ulamā’ towards codification of Sharī‘a varied often depending on whether or not they were selected to serve on the various committees of personal status. While there were significant detractors to codification, it is fair to say that a majority of the ‘ulamā’ who commented on this topic through independent works and newspaper articles accepted the process of codification as a necessary step towards national unity and securing a role for the Sharī‘a in modern society.

One can think of the ‘ulamā’ as falling into one of four categories vis-à-vis opinions towards codification. There were ‘ulamā’ who actually wrote the codes, there were ‘ulamā’ who supported the concept and process of codification, but were not included in the formal process, there were ‘ulamā’ who were against codification altogether, and there were ‘ulamā’ who accepted the concept of codification, but often times had problems with the actual codes that were drafted.

In understanding these positions, two important points must be kept in mind. The first is that while codification of law did emerge from a close relationship with western Europe, either by way of colonization or interest in modernizing and westernizing, it has often times been attacked as an imperial tool. To understand the arguments against codification, therefore, it is important to divorce opinions of colonization from the issue of the permissibility, or lack thereof, of codifying the Sharī‘a. The second point is that when discussing codification, it is important to understand that there was a simultaneous process of codifying both civil law and personal status laws. Almost all of the various branches of civil codes were taken primarily from European codes. There were efforts, however, to make sure none of these positions violated accepted norms of the Sharī‘a. The work of ‘Abd al-Razzāq al-Sanhūrī in this regard is well known. However, in the case of areas of personal status law, codification was solely based on Sharī‘a.

Impact on fiqh

The codification of Islamic law that took place in the last half of the 19^th century and the first half of the 20^th century was a process that had never occurred before in the history of Islamic legislation. Not only was the concept new, it drew criticism from conservative ‘ulamā’ who felt that such a process was completely incompatible with normative Islamic juristic norms. The major issues were not, however, related to simply taking rulings of the Ḥanafī, Mālikī, or any school and stating them in a point-by-point code. In fact such works like the Mecelle and the works of Qadrī Pasha were welcomed and studied in Sharī‘a schools throughout the Muslim world from the late 1800s onwards. The controversy, rather, had to do with broader political issues and the manner in which the Sharī‘a came to be defined.

The process of codification of Sharī‘a entailed three broad issues for the ‘ulamā’ who underwent the process. The first issue was their understanding of the authority of the state (specifically the ruler) to legislate. The relationship between the ‘ulamā’ and the state (referred to as al-siyāsa al-shar‘iyya) is something that had always existed within the Muslim world. The ‘ulamā’ recognized the right of a ruler to rule and legislate, and the ruler in turn recognized the ‘ulamā’ as the defenders and interpreters of the Sharī‘a. This religious-political relationship was carried over into the modern period by the ‘ulamā’ and applied to the permissibility of codifying personal status law. That is to say, the ‘ulamā’ involved in the codification process were of the opinion that it was within the rights of the ruler to ask for Islamic law to be compiled and codified as long as the ‘ulamā’ were retained to undergo the process and define the parameters of the law.

The second issue was a certain perspective towards independent legal reasoning (ijtihād). As opposed to the classical period, which was dominated by a spirit of taqlīd (following a specific school of law to the exclusion of others), the 19^th century ushered in a revival of the need to engage in independent legal reasoning to solve the many social issues that had emerged and presented legal changes to the Sharī‘a establishment. In the case of personal status law, issues surrounding women’s rights quickly rose as key social issues that many of the ‘ulamā’ sought to address through independent legal reasoning. This often meant re-examining established rulings and in some cases deriving new rulings all together.

The third issue was legal eclecticism (talfīq). In the actual process of codification, the ‘ulamā’ came to the conclusion that it would be impractical to rely on one of the four Sunnī schools of law to the exclusion of the others. Rather, an eclectic approach of choosing appropriate rulings as they were found in any of the schools was applied. While the concept of talfīq was theoretically accepted within Islamic legal theory with certain broad parameters, practically it was usually shunned and considered unacceptable. What made the taflīq approach in the codification process different than its classical treatment is that opinions were taken not only from the four Sunnī schools, but from schools of law that were considered “dead” and extinct. This approach even extended to adopting opinions found in Shi‘ī law (known as the J‘afarī School) when deemed appropriate.

These three broad issues employed in the process of codification of personal status law challenged and re-negotiated traditional nodes of authority vis-à-vis Islamic legal interpretative methodology. Not only did these discussions help create a codification of personal status law based on Islamic law, they also helped form a new understanding of legal methodology that continues to impact the interpretation of Sharī‘a today.

Conclusion

Codification of Islamic law is a product of the modern world. It was an unparalleled experiment that pushed the boundaries of legal authority and created a great deal of controversy. While codification of law emerged largely as a western colonial influence, by the middle of the 20^th century, it was something that Muslim nations and modern ‘ulamā’ were calling for themselves. Codification of all sectors of the law occurred, but it was largely codification of personal status laws that brought the ‘ulamā’ into the discussion.

Codification of Law