Shari'a and Islamic Family Law: Transition and Transformation

By An-Na'im, Abdullahi Ahmed | Ahfad Journal, December 2006 | Go to article overview

Shari'a and Islamic Family Law: Transition and Transformation


An-Na'im, Abdullahi Ahmed, Ahfad Journal


Abstract

This paper is an introduction to the book Islamic family law in a changing world edited by professor Abdullahi Ahmed An-Na'im. The introduction offers an overview of the nature and development of Shari'a in general and a clarification of the context in which the terms Shari'a and 'Islamic Law' are used. Through a historical review the paper offers an introduction to why Shar'ia became confined to family law in many Islamic countries. An-Nai'm argues for the transformation of family law into a normative system under the guidance of modern notions of social policy as well as Islamic precepts, without a representation that Shar'ia (in the context used in this paper) is binding this transformation. This introduction clearly sets the basics for a whole reform project.

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Islamic family law in a changing

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Introduction:

We have simplified the system of transliterating Arabic terms in order make he book accessible to the widest possible range of readers, while also remaining faithful to the authentic pronunciation of Arabic terms. Many texts with Arabic terms use a simplified and modified system of transliteration, wherein they use just two diacritical marks: the single closing apostrophe' to represent hamza and single opening apostrophe ' to represent 'ayn. Both hamza and 'ayn are Arabic letters that do not have any correspondence in the Latin alphabet. Hamza is a letter that is not even pronounced other than as a stop. In this text, we have chosen to simplify natters further by representing both hamza and 'ayn by a single neutral, apostrophe mark'. The rationale for this pertains to the objectives of the text and the target audience for the book. It has been conceptualized as an information resource for academics in a range of disciplines and students at all levels of study, as well as laypersons.

The basic objective of the research project under which this volume has been prepared is to explore the possibilities of reform in Islamic Family law (IFL) from a human rights perspective. In order to found that effort on the most factual and least controversial information, we have attempted to collect and organize in this volume a global overview of Islamic societies and aspects of the legal systems of their countries that are most relevant to family law. To provide some context for understanding this material in relation to the underlying objective of the project as a whole, I will present in this Introduction an overview of the nature and development of Shari'a in general, and its transition into being limited to family law matters in particular, as is the case today in most Islamic countries. By Islamic countries I mean those countries with majority Muslim populations, regardless of the nature of the state and its ideology and legal system. Against the background of this review of well-known and widely accepted developments, 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 Shari'a, or represented as An understanding and justification of this transformation is critical for realization of the reform objectives of this project as a whole. But first, a clarification of the terms Shari'a and 'Islamic Law' as used in this book.

Shari'a refers to the general normative system of Islam as historically understood and developed by Muslim jurists, especially during the first three centuries of Islam--the eighth to tenth centuries-CE. In this commonly used sense, Shari'a includes a much broader set of principles and norms than subject matter as such. While the term Islamic Law is generally used to refer to the legal aspects of Shari'a, it should also be noted that Muslims tend to believe that the legal quality of those principles and norms derives from their assumed religious authority. …

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