Codification and Islamic Law: The Ideology Behind a Tragic Narrative

in Middle East Law and Governance
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This article repositions historigraphically a particular thesis in Islamic legal studies that characterizes Islamic law as utterly incompatible with codification, and by implication the modern administrative state. This article departs from that argument by situating codification efforts in Muslim majority polities alongside other efforts at codification, specifically 19th century Germany and the United States. The article shows that the thesis of incompatibility relies on a constricted reading of the “Islamic”, an overdetermined conception of the state, and an under-appreciation of the populist-cum-democratic ideology that animates the thesis in the first place. A more fruitful way forward is to reify the “state” rather than rarefy it as a theophanic specter. To better appreciate the relationship between Islamic law and codification, the argument suggests, requires that scholars attend to the “state” while resituating the history of the “Islamic” in terms of a history of the “legal”.

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References

1

Wael B. Hallaq, Sharia: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 361.

2

Hallaq, Sharia, 361–2.

3

Hallaq, Sharia, 362.

4

 See also, Noah Feldman, The Fall and Rise of the Islamic State (reprint, Princeton: Princeton University Press, 2012), 61–68.

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Louis Althusser, “Ideology and Ideological State Apparatus (Notes Toward an Investigation),” in Lenin and Philosophy and Other Essays (1972; reprint, New York: Monthly Review Press, 2001), 85–126.

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Knut S. Vikør, Between God and the Sultan: A History of Islamic Law (New York: Oxford University Press, 2005), 222–253; Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Publications, 2001), 38.

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Ferdinand Fairfax Stone, “A Primer on Codification,” Tulane Law Review 29 (1954–1955): 300–310.

21

 See, Ferdinand F. Stone, Institutions fondamentales du droit des Étas-Unis (Paris: Librairie générale de droit et de jurisprudence, 1965).

23

Leonard Oppenheim, “Louisiana’s Civil Law Heritage,” Law Library Journal 42, no. 4 (1949): 249–254.

25

Gunther A. Weiss, “The Enchantment of Codification in the Common-Law World,” Yale Journal of International Law 25 (2000): 435–532.

26

Weiss, “Enchantment of Codification,” 500.

27

Weiss, “Enchantment of Codification,” 501. For an extended historical analysis of the Louisiana Civil Code, see Richard Holcombe Kilbourne, A History of the Louisiana Civil Code, the Formative Years, 1803–1839 (Baton Rouge: Paul M. Herbert Law Center Publications Institute, 1987).

28

Stone, “A Primer on Codification,” 303.

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S.A. Bayitch, “Codification in Modern Times,” in Civil Law in the Modern World, ed. Athanassios N. Yiannopoulos (Baton Rouge: Lousiana State University Press, 1965), 161–191.

33

Bayitch, “Codification in Modern Times,” 165.

35

Stone, “A Primer,” 303.

36

Ernst Freund, Legislative Regulations (New York: The Commonwealth Fund, 1932), viii.

37

James M. Beck, Our Wonderland of Bureaucracy: The Study of the Growth of Bureaucracy in the Federal Government, and its Destructive Effect Upon the Constitution (New York: The MacMillan Company, 1932), ix.

41

Hallaq, Sharia, 367.

46

 See for instance, James Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1999); Begoña Aretxaga, “Maddening States,” Annual Review of Anthropology 32 (2003): 393–410; Timothy Mitchell, “The Limits of the State: Beyond Statist Approaches and Their Critics,” The American Political Science Review 85, no 1 (1991): 77–96. On the state and competing approaches to its study, see Aradhana Sharma and Akhil Gupta, eds. The Anthropology of the State: A Reader (Oxford: Blackwell Publishing, 2006).

48

Weiss, “Enchantment of Codification,” 451.

50

Weiss, “Enchantment of Codification,” 456.

51

Hallaq, Sharia, 368.

52

Anderson, “Modern Trends in Islam,” 4.

53

Anderson, “Modern Trends in Islam,” 18.

54

Vikør, Between God and the Sultan, 226.

58

Weiss, “Enchantment of Codification,” 456.

59

Weiss, “Enchantment of Codification,” 456.

60

Vikør, Between God and the Sultan, 227.

65

Weiss, “Enchantment of Codification,” 458.

66

Hallaq, Sharia, 368.

69

Weiss, “Enchantment of Codification,” 462–3.

70

Hallaq, Sharia, 368.

71

Weiss , “Enchantment of Codification,” 466.

74

Weiss, “Enchantment of Codification,” 468.

75

Weiss, “Enchantment of Codification,” 469.

78

Weiss, “Enchantment of Codification,” 467.

79

Weiss, “Enchantment of Codification,” 467.

80

Hallaq, Sharīʿa, 444–445.

81

Layish, “The Transformation of the Sharīʿa,” 89.

82

Anderson, “Modern Trends in Islam,” 3.

83

Anderson, “Modern Trends in Islam,” 4.

84

Weiss, “Enchantment of Codification” 467.

86

Weiss, “Enchantment of Codification,” 468. On the politics of harmonization in eu law, see Stephen Weatherill, “The Consumer Rights Directive: How and Why a Quest for ‘­Coherence’ Has (Largely) Failed,” Common Market Law Review 49 (2012): 1279–1318; Lucia Hrehorovska, “Tax Harmonization in the European Union,” intertax 34, no. 3 (2006): 158–166. For a critique of legal harmonization, specifically with regard to a federal system, see Martin Boodman, “The Myth of Harmonization of Laws,” American Journal of Comparative Law 39 (1991): 699–724.

88

Anderson, “Modern Trends in Islam,” 3.

90

Weiss, “Enchantment of Codification,” 453.

91

W.H. Bruford, “Germany Constitutional and Social Development, 1795–1830,” in The New Cambridge Modern History, Volume 9: War & Peace in an Age of Upheaval, 1793–1830, ed. C.W. Crawley, 367–394 (Cambridge: Cambridge University Press, 1965), 367 (Cambridge Histories Online. Web. 04 November 2014. http://dx.doi.org.myaccess.library.utoronto.ca/10.1017/CHOL9780521045476.016).

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Frederick C. Beiser, The German Historicist Tradition (Oxford: Oxford University Press, 2011), 234–235.

93

Weiss, “Enchantment of Codification,” 453. See also, Beiser, German Historicist Tradition, 233–234

95

Beiser, German Historicist Tradition, 235.

96

Reimann, “Historical School Against Codification,” 98.

97

Beiser, German Historicist Tradition, 237.

99

Wieacker, A History of Private Law in Europe, 285.

100

Wieacker, A History of Private Law in Europe, 311. Wieacker remarks that this approach to the “people” also reflects Savigny’s particular hostility to the “claim of the modern state to change its social structure by political means.” Wieacker, A History of Private Law in Europe, 312. Savigny was deeply committed to preserving the status and role of the jurist as the “exclusive representative of law in the people.” Wieacker, A History of Private Law in Europe, 311. As he remarked, law may start out as based on “custom and popular faith”, but ultimately it is developed by jurisprudence. Savigny, Of the Vocation, 30. The reference to jurisprudence implies the primacy of jurists (and not the broader populace) in articulating and representing the law. Savigny’s elistism puts his dispute with Thibaut into stark relief.

101

Savigny, Of the Vocation, 27.

102

Mathias Reimann, “The Historical School against Codification: Savigny, Carter, and the Defeat of the New York Civil Code,” The American Journal of Comparative Law 37, no. 1 (1989): 95–119, 98.

103

Savigny, Of the Vocation, 28–29; Beiser, German Historicist Tradition, 237, who also notes that the Thibaut-Savigny dispute was less a conflict between a revolutionary and a conservative, but rather a dispute about the appropriate mode of legal reform, whether wholesale from above or gradually by jurists from below.

104

Wieacker, A History of Private Law in Europe, 314.

105

Weiss, “Enchantment of Codification,” 475.

107

Postema, Bentham and the Common Law Tradition, 274–5.

108

Weiss, “Enchantment of Codification,” 475.

110

Weiss, “Enchantment of Codification,” 498–99.

114

Field, Speeches, arguments, and miscellaneous papers, 239.

115

New York State Constitution of 1845, Art I, s. 17 (available online: http://lib.law.washington.edu/waconst/sources/NYConst1846.pdf) (accessed October 27, 2014). See also Weiss, “Enchantment of Codification,” 505, for discussion of the 1846 Constitution and the space it created for Field to press for codification.

116

Weiss, “Enchantment of Codification,” 505.

120

James C. Carter, The Proposed Codification of Our Common Law (New York: Evening Post Job Printing Office, 1884), 5–7 (italics added).

121

Carter, Proposed Codification, 17–20.

122

Carter, Proposed Codification, 21. On police power, see Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: University of Chicago Press, 1904). On the 19th century regulatory state in the us, see, the exceptional study by Novak, The People’s Welfare.

123

Carter, Proposed Codification, 20.

125

Commager, The American Mind, 365–6. On the industrial revolution, inequality, and the limits of the law, see the essay by then-dean of Boston University Law School, Melville M. Bigelow, “Introduction: The Extension of Legal Education,” in Centralization and the Law: Scientific Legal Education (Boston: Little, Brown, and Company, 1906), 1–19, 4–5.

126

Waskey, “Industrial Revolution,” in Encyclopedia of World Poverty, ed. M. Odekon (Thousand Oaks, CA: SAGE Publications, 2006), 546.

127

Frank Johnson Goodnow, Social Reform and the Constitution (New York: The MacMillan Company, 1911), 1.

131

Field, A short response to a long discourse, 9. <http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F105898096&srchtp=a&ste=14> (accessed December 4, 2014).

133

Guy Bechor, The Sanhuri Code and the Emergence of Modern Arab Civil Law, (1932–1949) (Leiden: Brill, 2007), 3.

134

Bechor, The Sanhuri Code, 3.

137

Reimann, “The Historical School against Codification,” 116.

138

Reimann, “The Historical School against Codification,” 115.

139

Shalakany, “Between Identity and Redistribution,” 207.

141

Abou El Fadl, Speaking in God’s Name, 170.

142

 See for instance, Kecia Ali, Marriage and Slavery in Early Islam (Cambridge: Harvard University Press, 2010); Ayesha Chaudhry, Domestic Violence and the Islamic Tradition, Oxford Islamic Legal Studies Series (Oxford: Oxford University Press, 2013). Of course, Abou El Fadl is well aware of the patriarchal status quo, despite his emancipatory rhetoric of an untainted Islamic law as against the modern state. Abou El Fadl, Speaking in God’s Name.

143

Hallaq, Sharīʿa, 368–9.

144

 See, James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1999); idem., The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven: Yale University Press, 2010). The institutional/organizational turn in legal theory, calls attention to the state as comprised of a range of institutional actors, not all of which act in concert with one another. See, Scott Shapiro, Legality (Cambridge: Belknap Press, 2013); Cass R. Sunstein and Adrian Vermeule, “Interpretation and Institutions,” Michigan Law Review 101, no 4 (2003): 885–951.

145

Michel-Rolph Trouillot, “The Anthropology of the State in the Age of Globalization: Close Encounters of the Deceptive Kind,” Current Anthropology 42, no. 1 (2001): 125–138, 126 (quoting Radcliffe-Brown).

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