Islamic Family Law in a Changing World

Article excerpt

LAW Islamic Family Law in a Changing World, ed. by Abdullahi A. An-Na'im. London, UK and New York: Zed Books, 2002. xvi + 303 pages. Gloss, to p. 311. Index of countries and general index to p. 320. $69.95 cloth; $27.50 paper.

Islamic Family Law in a Changing World, a survey of family law in Islamic countries, is the result of a collaborative effort including Abdullah A. An-Na'im, the editor of the book, and several other scholars. But the book is not a survey in the usual fashion of presenting a formalist exposition of the rules on the family. It also provides an account of the social and historical factors in the countries/regions surveyed and the way such factors interact with the law to produce "gender" in the Islamic world today. The goal is to impress upon the readers the complexity and uniqueness of Islamic family law in each of the localities covered in the book.

The book is impressive in the vast expanse of territory it surveys (from Central Asia and the Caucasus to East and Central Africa to Middle East and South Asia, among others) and in the range of subjects it covers (including social, cultural and historical background as well as detailed legal profiles of these various countries and regions). The entry on each country/region is encyclopedic in style, condensed, and quite informative. Its various chapters are written in summary form and are designed more to inform than to make any particular argument beyond the overall methodological one of combining law with society.

Besides seeking to inform readers, AnNa'im hopes that the book proves to be of use to advocates of reform of family in the Islamic world. As he argues in the preface, the question for these reformers is always "how to achieve significant and sustainable reform in the face of...rhetorical absolutist" arguments made by the conservative and fundamentalist forces from the right (p. xi). If you are a reformer, you are advised to know how to argue your case, and this book should help you do exactly that.

While the disparate chapters of the book provide the reviewer with little to comment on, the introduction to the book written by An-Na'im and for which he claims sole responsibility, is quite another matter. It is thoughtful and provocative, and thus deserves close attention in its own right.

Early in the introduction, An-Na'im makes a stark proposal: "I will argue for the transformation of family law into a normative system that is guided by modern notions of social policy as well as Islamic precepts, but not bound by Sharia, or represented as such" (p. 1). In case this quote leaves you to wonder the extent to which An-Na'im is advocating the de-Islamicization of family law in the Islamic world, the end paragraph of the introduction dispels all doubts:

For my part, I am hereby calling for a clear and categorical acknowledgement of the fact that family law in the Islamic countries today is not, and indeed cannot and should not be, founded on Shari'a. Like all aspects of the legal system of each country, family law is really based on the political will of the state, and not on the will of God. After all there is no way of discovering and attempting to live by the will of God except through the agency of human being (p. 20).

In other words, An-Na'im is not only calling for the secularization of family law in the Islamic world, but for the acknowledgement that it is already secularized. The starkness of his proposition comes from the fact that at this particular time, scholars of Islamic family law, historians and legal scholars alike, seem to have reached a consensus that transforming the rules on family law in the Islamic world is, normatively but also realistically, only conceivable within the paradigm of Shari'a and not outside it, as An-Na'im is proposing. Most such scholars would support their argument for reform of the rules either by advocating a fresh return to the main sources of the religion, or by appealing to some new rule that they argue is more authentically Islamic than the distorted rules of the present time, or by sifting through the rules to decide which are determinate and which are not. …