Islam and Modernity: Part I

July 10, 2019

Islamic Sciences and the Prevalence of Islamic law

Among the Islamic disciplines, the discipline of law, fiqh, and its related sciences,¹ is the most prominent, at least due to its popularity among the masses.  The vast number of books and literature produced about fiqh and its related sciences, not to mention the large number of scholars who study it, is also evidence for its status compared to other disciplines. Other Islamic sciences like philosophy, theology, Quranic commentary, mysticism and ethics, which are arguably as important as fiqh, were not able to attract a mass audience and lay readership in the history of Islam. Even mysticism and irfan, which attracted many followers and advocates, particularly in the West, and among the “social elite were not able to achieve the popularity of fiqh and the status it has held in the history of Islam.

The popularity of fiqh, for the most part, came from its nature of dealing with the application of the law and its exoteric dimension, which answers the question of “what to do.” That is why “fatwa” does not deal with anything beyond the surface of the law. On the other hand, mysticism deals with the philosophy and esoteric dimension of the law, and thus it is less accessible to a mass audience. In other words, the prevalence and fame of fiqh are mostly due to its accessibility and relevance to the day-to-day lives of religious people. Fiqh is the means by which a Muslim makes all the moments of their life holy: how one can make their sleep blessed, what to do when they wake up, what supplication to recite when they leave their home, what they can eat and drink, what to do when someone dies, how to get married or divorced, how to distribute inheritance and wealth, which business is halal and which is haram, and with what country to be at peace or at war. In other words, fiqh essentially can teach religious people how to experience a godly life and lead an Islamic lifestyle in every single moment of their lives, from personal to family, as well as to the sociopolitical and international aspects of life.

The second reason for the prominence of fiqh, when compared to other Islamic sciences is due to the need of every society for a legal system. Muslim kings, in the history of Islamic countries, needed laws for governing, and among all other Islamic sciences fiqh was the only science able to provide laws and legal solutions relevant to their and other circumstances.

What we mention regarding the prevalence of fiqh over other Islamic sciences explains why, when we talk about Islam and modernity, we use the word Islam but normally mean Islamic law and modernity. Following the same norm, in this series, we will talk about the conformity or conflict of Islamic law with modernity. However, before answering whether Islamic law and modernity are in conflict, we need to explain the historical circumstances that played a role in the creation of such a question.

Modernity and its Challenges for Islamic law

The creation of modern universities and the democratization of knowledge challenged the ability of fiqh to serve as a foundation for the derivation and establishment of personal, interpersonal, and societal laws in Islamic countries.  Modern universities and their law schools became rivals to the traditional seminaries which historically administered the production of law. Eventually, secular lawyers took the positions previously filled by seminary graduates. For example, court positions, previously taken only by seminarians, now contained law graduates from modern universities. Eventually what were permissible and not permissible in banking contracts, financing, medical ethics, and so forth were written by lawyers with little or no consultation with Islamic Scholars (ulama).

In addition to the role of modern universities in decreasing the value, applicability, and relevance of fiqh in Islamic countries, the evolution of the nation-state and parliamentary representation in these countries also played a prominent role in that regard. Parliaments and secular institutions replaced the offices of ulama, which had been the references and recourse for Muslim kings in the development and implementation of law. The early modern history of Egypt, Iran, Malaysia, and Turkey is a great testimony to these shifts.² These developments in modern times created many questions about the relevance and applicability of fiqh as a science in terms of its competence to produce laws that resonated with the sociopolitical realities of our modern societies.

It is interesting that the same historical factors, which caused the marginalization of fiqh and its restriction to personal matters, opened the door for the growth of more esoteric Islamic sciences like spirituality, mysticism, and ethics. As fiqh lost its influence in the public sphere due to the development of secular nation-state institutions, spirituality, mysticism, and ethics gained the position of shaping the image and impact of religion in the public realm. This does not mean that those esoteric sciences have now achieved the status that fiqh held in the history of Islamic sciences. Instead, it explains the reason behind their rise in modern times.

After considering some of the historical challenges that fiqh has faced, the question becomes whether the Islamic legal system has the core elements and capability to produce laws that are compatible with modern societies. Hence, we will reflect in this series of articles on whether fiqh, if given another chance to enter the socio-political realm of modern life, would be able to produce sound and fair laws. The purpose of these articles is to prove that the Islamic legal methodology has, within its tradition, all the needed components and mechanisms to produce laws that are relevant under any social circumstance or context.

As such, we will cover the core elements required in any legal system in subsequent articles and describe how both Western and Islamic legal systems consider those core elements in the production of law. We will also touch upon three common misconceptions when contrasting the Sharia legal system with the Western/secular legal system.

Click here to read Part 2 of this series: Modern Knowledge: A Critical Review

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1. For example, the principles of jurisprudence (usul al-fiqh), hadith, and rijal.
2. For more on this read: Arskal Salim, Contemporary Islamic Law in Indonesia: Sharia and Legal Pluralism, (Edinburgh University Press, 2015), JSTOR, www.jstor.org/stable/10.3366/j.ctt14brz2b.
Wael B. Hallaq, Sharia: Theory, Practice, Transformations, (Cambridge, UK: Cambridge University Press, 2009).
Donald L. Horowitz, “The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change,” The American Journal of Comparative Law, 42, no. 3 (1994), 543–580, JSTOR, www.jstor.org/stable/840701.