Religious law and social progress in contemporary Islam

Looking to the future there are two principal features of modernist legal activities which command attention.

In the first place the current expression of the law rests upon a striking diversity of juristic criteria, which represent varying degrees of fusion between the two basic influences of practical necessity and religious principles. During the first stage of legal modernism these two influences had produced a clear-cut dichotomy in the law. Western law was directly adopted in the field of crime and civil transactions generally, while traditional Shari’a doctrine continued to govern the sphere of personal status. Recent trends, however, have tended to break down this firm division. In the civil law a growing emphasis has been placed on religious principles. A merger of foreign and Islamic elements is the outstanding feature of the Iraqi Civil Code promulgated in 1953. Family law, on its side, has been increasingly permeated with Western standards and values, and its here that the juristic basis of the law, viewed as a whole, appears most complex.

Economic grounds alone were thus held to justify the total abolition of family settlements under the traditional waaf system (a settlement of property under which ownership of the property is “immobilized” and the usufruct thereof is devoted to a purpose which is deemed charitable by the law) in Syria in 1949 and in Egypt three years later, while social necessity has been the declared basis of certain recent reforms in that traditional most invulnerable sphere of Shari’a – the law of succession. In 1945 a judicial circular in Sudan allowed bequests to be male, within the established limit of one-third of the net estate, in favour of legal heirs, and expressly stated the reason for this reform to be the need felt by testators to make additional provision for the less fortunate of these heirs.

An even more radical departure from the traditional law of succession is contained in the Tunisian law of 1959 which provides that any lineal descendant of the deceased, male or female, excludes the deceased’s collateral relatives from intestate succession; for under the agnatic system of traditional law the brothers of the deceased, in the absence of any surviving male ascendant or descendant, are the primary residuary heirs. It could in fact be argued with some facts that this provision does implement the general spirit of the Qur’anic legislation. For one of the basic trends of the reforms introduced by the Prophet was the replacement of the wider social unit of the tribe by the unit of the individual family. This purpose had been largely nullified by the traditional law, in inheritance at least, by its retention of the customary tribal system, which gave superior rights to male agnate relatives. But it is obviously the concept of the family, as consisting of the husband, wife, and their issue, which inspired the Tunisian reform.

The second feature of modern Islamic law which is relevant to the question of potential future development is the fact that many of the substantive reforms must appear, on a long-term view, as temporary expedients and piecemeal accommodations. This is not to deny the present efficacy of the reforms in solving the immediate problems of the areas in which they have been introduced. But certain provisions, such as the partial restrictions placed upon polygamy and repudiation, point inevitably towards the direction which future progress must follow and can represent only the intermediate stage in the advancement of a society along this road. In some cases novel provisions lie in uneasy juxtaposition with the traditional law. The introduction of the representation rule in the succession in Pakistan, for example, is completely disruptive of the finely balanced scheme of priorities established by the Shari’a. In other cases reforms, far-reaching in themselves, disclose a root problem which has still to be solved. The restriction of polygamy and repudiation is obviously aimed at the ultimate goal of equality between the sexes.

Radical though the break with past tradition which such an approach involves might be, it is nevertheless a break with a particular construction of the religious law and not with its essence. This, at any rate, would seem to be the only realistic basis for future development and the only alternative to a complete abandonment of the notion of a law based on religion. Law, to be a living force, must reflect the soul of a society; and the soul of present Muslim society is reflected neither in any form of outright secularism nor in the doctrine of the mediaeval text books.

Answer the following questions:

1) What is the first feature of modern Islamic law?

2) What is the second feature of modern Islamic law?

TASK 5. Translate from Russian into English:

1. В шариатских судах истец должен был предоставить двух взрослых мужчин-мусульман, чтобы они подтвердили справедливость его требований. 2. Письменные показания в этих судах не принимались. 3. Суды шариате никогда не достигали позиции органа высшей судебной власти. 4. Иудейские и христианские общины платили подушный налог в обмен на защиту властей. 5. В Коране содержится много положений, касающихся порядка наследования. 6. Коран запрещает ростовщичество. 7. Коран содержит много правил о разводе и браке.

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http://dic.academic.ru/dic.nsf/ruwiki/488241

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