Law and Society Review Special Issue Introduction: Islamic Law, Society, and the State

By Moustafa, Tamir; Sachs, Jeffrey Adam | Law & Society Review, January 1, 2018 | Go to article overview

Law and Society Review Special Issue Introduction: Islamic Law, Society, and the State


Moustafa, Tamir, Sachs, Jeffrey Adam, Law & Society Review


Islamic law occupies a relatively minor place in the legal systems of most Muslim-majority countries, with jurisdiction often limited to matters of family law. In a smaller number of countries, its reach includes criminal and constitutional matters as well. Yet whatever its formal scope, state claims to Islamic law frequently generate controversy and contention. There is a certain irony here: most states that seek to regulate Islamic law do so with the expectation that its role can be carefully stage managed and choreographed. Instead, state leaders more typically find themselves contending with new demands and unexpected forms of claimsmaking; whether from women's groups advocating for gender equality grounded in Islam, from conservative groups calling for the adoption of an Islamic criminal code, or from liberals and secularists challenging the state's claim to Islamic law altogether.1 When it comes to Islamic law, everyone has an opinion.

Many readers will understand these struggles as a politics of tradition versus modernity. But the collection of essays that make up this special issue of Law & Society Review present a different perspective. They demonstrate that contention around Islamic law is, in fact, a quintessentially modern phenomenon. That is to say, the present-day politics of Islamic law are both unique to the contemporary era and contingent on modern state institutions for their expression and distinctive salience. This special issue focuses on what state regulation of Islamic law gives rise to-the new forms of politics it creates, the governing strategies it enables, the modes of resistance it makes possible, and the types of legal or religious consciousness it generates.

More generally, this special issue is intended to connect sociolegal scholars with new research at the intersection of Islamic law and society. This is a bridge that is sorely missing at present. Terms such as "Islamic law" "sharia," and "fatwa" are widely cir culated given contemporary political realities, round-the-clock news coverage, and growing Muslim communities in Europe and North America. Poll after poll suggests that these terms, and the Islamic legal tradition more broadly, carry negative associations for many in the "West" (Green 2015). Even within the scholarly community, there is still too little understanding of, or interest in, the Islamic legal tradition. Thus, few are aware of the extent to which the English common law borrowed from the Islamic legal tradition (Makdisi 1998), the impact of Europe's encounter with Islamic law on the development of international law (Pitts 2018), or the prominent role of Islamic law in global finance and commerce, both historically (Bishara 2017) and in the present (ElGamal 2006). Indeed, with few exceptions (e.g. Quraishi 2006), there has been little comparative work across these legal traditions. Yet Islamic law, nevertheless, remains a persistent and vital feature of the global legal landscape.

Each essay in this special issue draws on a context-rich case study to shed light on a different aspect of the relationship between Islamic law and the state. Together, they explore how state institutions refract the Islamic legal tradition, altering it in ways both subtle and profound. This framing essay opens with a brief introduction to the Islamic legal tradition, as well as to some of the major questions that animate the scholarship on Islamic law and society. It then presents case studies from Egypt, India, Malaysia, and Sudan to offer theoretically informed and empirically grounded research into the myriad ways in which Islamic law and state institutions intersect. Together, the contributions examine how binaries of public versus private, religious versus secular, and, yes, "tradition" versus "modernity" are legally, socially, and politically constructed. The special issue will be of general interest to law and society scholars and of particular interest to those who specialize in law and religion, legal pluralism, legal consciousness, family law, comparative judicial politics, and rights contestation. …

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