Syariah and Codification of Islamic

Law and Its Implementation in

Modern States

Warning: Only for the use of IXGH6111 course. Quotation in not

permitted. © 2015 Ahmad Hidayat Buang
 Levels of Syariah
Implementation
• Individual
• Rituals
• Personal obligations and ethics

• Society Islamic Principles

• Social relations transcends at all
• Marriage levels
• Family

• State
• Settlement of disputes
• Protection of rights
• Punishment for crimes
 Ways to Implement Syariah

• Education

• Missionary and social awareness

• Political power through codification

• Advantage of this method
• Ideas of reform can be easily embedded
• Fast implementation and result
• Avoid disagreement and promote uniformity
• Better address social needs and problems
 Historical Background
• Codification means to select the appropriate views of fiqh in form of modern law
legislation to be implemented by the state authority

• Attempt by Harun al-Rashid to codify Malik’s Muwatta’

• Attempt by Aurangzeb to codify Fatawa Hindiyya

• Promulgation of Majallah al-Ahkam al- ‘Adliyyah

• Modern Islamic legislation throughout the world

• Constitutions (Pakistan, Iran, Egypt, Yemen etc.)
• Family Laws
• Marriage and divorce ((Almost all except Turkey)
• Succession (Egypt, Tunisia, Iran)
• Laws of Obligations (Iran, Sudan, UAE etc.)
• Property Laws – Waqf (Egypt)
• Hudud Law (Pakistan)
Problems of Law Codification

• Choosing appropriate principles or views

• Traditionalists v. Reformist (Liberal)
• Legalistic v. Objectives

• Legacy of colonial practice and culture

• No modern precedence
• Dominance of colonial institutions and traditions

• Question of consistency
• Too many variations

• Political will or politicization

• Shortage of experts
 Critics to Codification

• Traditionalists of the view Shariah cannot be codified

• Preserving of past heritage
• Allow only administrative aspects to be codified
• In Saudi Arabia known as Nizam
• Reformists/Modernist/Liberal view the needs of
codification but different in approaches
• Reformists -Legislative Council not the Ulema having the
task and authority to legislate
 Revivalist or Neo Revivalist
Approach
• Or known as atomistic/microscopic approach
• Denounce excessive secularism, openness
• Resistance to westernization
• Islam way of life
• Rejection of textual reinterpretation
• Ijtihad only on matters not cover by texts
 Modernist/Liberal Approach

• Known as contextual approach

• Avoidance of literal interpretation
• Selective use of Sunnah
• Original thinking
• Distinction between Shariah and Fiqh
• Avoidance of sectarianism
• Reversion to methodology/solution of classical law
 Methods of Reform through
Codification
• Administration (siyasah)
• Selection of views (takhayyur)
• Talfiq
• Ijtihad
• Neo Ijtihad
• Secularization?
• Islamization
• Harmonization
 Organization in
Implementation of Syariah
• Courts
• Courts Officials
• Judges
• Muhtasib
• Prosecutors
• Lawyers
• Court Hierarchy

• Muftis
• Official muftis
• Organizational Muftis
• Method of Ijtihad
• Jama‘i
• Specialist ijtihad