Author: Merve Nur BAYRAKTAR
Shariah and Modernism
In this study, I will reveal my reflections about the relationship between the shariah and modernism according to Wael B. Hallaq’s book, which named as “ An Introduction to Islamic Law”. He did not only explain the Islamic rules but also regarded them from a modernist view. So, we will see the basic rules of Islamic law instead of complicated issues of fıkh.*After revealing the main points of the article, I will put my own ideas for every part.
In the first part, he introduces the reader to what was Islamic Law meant in pre-modern times. In that way, he explains the origins of it in which Islamic law occurred. We see that he insistively looks for by whom these rules were created. This is a vital point that makes Islamic law, Islamic. Islam is an authority itself and the Islamic state is established based on this authority. Contrary to a modern state, there is no constitution for the Islamic State, which is constructed by the state. It does not mean Islam has a constitution which is listed according to the issues and some people who obey that, gather and establish a state. It means Islamic states wrote their own constitution by looking at the precedents. These precedents were not ordinary, daily events; they were the decisions of Islamic judges.
And then he explains the four legal personnel of Islamic State. They are mufti, author-jurist, the judge (qadi) and law professor ( Fakih). Instead of redefining them, I will point the differences which Hallaq emphasized.
Firstly, in the pre-modern state, the central authority was not able to reach all locations of the country. So contrary to today’s Turkey -where the speech of Friday ceremony is prepared by the state every week- muftis were the authority of religion for small places like villages. This method was also useful not to create a chaos because, in pre-modern states, centralization was not at the level of modern states’. Also, the lack of communication makes it different from each other even for nearby locations. Thus, we can say that fatwa’s belonged to the places where they were produced. When these fatwas arranged in a book, these books became the law of Islam.
The other point Hallaq emphasized was that religion men did not belong to an upper class in Islamic states. It was different even in pre-modern Christian societies, clergymen were not the same as the public; they were belonged to an upper class and probably because of that this point made Hallaq surprised.
The last difference was the fatwa circle. In which students attended to learn about Islam. It was different from modern educational institutions. Students didn’t give a fee to mufti for this education or mufti had no fixed salary for that. They only accept gifts from the society, the people of the village they lived in, or families of students if they give voluntarily. No registration, no diploma, no degrees. I mean it was a totally informal way of education, which we can not see a similar to it in modern institutions.
But most differences occur because of the era. I mean a source of difference is not Islam; it is the belonging of pre-modern times.
The second part is more focused on the law and how it is founded. The first thing he thinks about is applying rationalism. Many of Muslim believed that God created the whole world and us. He knows what we can explore and what we can not. Ration helps us to find what is good and what is evil but it has limitations. At that point, He sent us vahy via prophets. It also helps people at the process of looking for the “good”. This path also helps people to find God.
Transmission of texts: Islam has four sources. They are the Quran, Sunnah, Consensus (icma) and qiyas. Quran is the main resource in which the words are totally said by God and sent to us via Prophet Mohammed. The prophet is the one who understands and practices the Quran also a modal for Muslims.
When a conflict occurs between hadith and Qur’an, abrogation is used to correct that situation.
Reasoning: In some cases, jurists cannot decide what should be done by looking at the Quran and hadith. At that point jurists establish new norms for every private case. This is not creating new rules as the name of Islam. It is finding solutions without leaving the mainstream.
After defining the Quran and Sunnah we will point the consensus(icma). Technically, the consensus is defined as the agreement of the community as represented by its highly learned jurists living in a particular age or generation, an agreement that bestows on those rulings or opinions subject to it a conclusive, certain knowledge.
The last one is qiyas which can be named as a kind of analogy. Jurists apply it at the end.
Legal pluralism;(ictihad) refers to a kind of interpretation which provides many solutions for one case. Owing to that one case can have variable solutions according to location and period. But these solutions are not clear as much as Quran or Sunnah. Making plural ways reduces the possibility of being true.
After introducing four legal schools of Islam( Hanafi, Shafi, Hanbali and Maliqi) and system of caliphate he focuses on jurists, legal education and politics under the fourth title.
For the Islamic education part, he induced four dynamics:
- The relationship between the legal scholars and caliphate to understand the connection between political elites interests and jurists decisions.
- A brief account of legal education which stayed same until 19th century
- The rise of madrasa and law of waqf, which has a great effect on madrasa system
- The relationship between ruling elite and legal profession.
The last factor reminds “enlightened despotism” at first glance. Because in pre-modern times in Europe, the enlightened class wasa tool in the hand of the ruling class. It means ruling elites were paying to the enlightened class to justify their politics by the terms of science. I think this doubt comes from this background.
The madrasa, as an institution, developed in eighth century when waqfs take the responsibility of it. It provided all social and economic needs of students and professors. By the time they progressed more and more and became a center of life.
Physically, the madrasa was constituted of a building that at times was the mosque itself, but at others was a special structure built as an annex to a mosque.
The law of waqf, therefore, represented the glue that could bind the human, physical and monetary elements together. Essentially, waqf was a thoroughly religious and pious concept, and as a material institution it was meant to be a charitable act of the first order.
Hallaq insistively ask that in pre-modern states, it was usual that the state reaches to the little towns and use direct control over them. So why it did not happen in Islamic state?
To answer this question he says that in Muslim States communication between the public and the government was limited. So, the state failed to provide control over them. But I have another idea for Ottoman and SeljukianEmpires. Maybe the first Islamic State which was established by Prophet Mohammed and Sahaba can be concluded. These Islamic based governments had an ideal which is known as Jihad. In their opinion, instead of making a rigid pressure over their own public; to conquer non-Muslim territories was more important. When we look at their historical movement we see a hard effort to go through Europe from the begining of their history. I do not claim that was what should be done or not. But in my mind to blame the Islamic States with insufficient control over the public is not true. Because control the society’s religious behavior belongs to secular state understanding. In the Islamic States it was unnecessary.
- Hallaq, Wael B. , An Introduction to Islamic Law, Cambridge University Press, Cambridge, 2009
 Control the resource for more detailed information. (Chapter 3)
About The Author
Merve Nur Bayraktar / TESA English Translator / Political Science Researcher
Istanbul University Political Science and International Relations (Bachelor)
Istanbul Şehir University Political Science and International Relations (Master) (English)