1 - Syariah in the State: The New Fiqh

Summary

In the contemporary world of Islam we have by now become accustomed to the fact that the formal expression of syariah differs from region to region. In practice this means that we have to be specific as to place and time when answering the question, ‘What is syariah and how is it known?’ At the level of nations—Egypt, Tunisia, Saudi Arabia, India, Malaysia and so on—we can give a specific reply to this question, but for the Islamic world as a whole there is no answer except at some almost meaningless level of generality. It is also possible to answer the question in terms of Western forms of law, that is, civil and common law reformulations which show, for example, that Malaysia and India have quite a lot in common whereas Malaysia and Indonesia do not, despite their similar languages and culture. In short, syariah in practice is various, not homogenous.

These comments should not be read as saying that the formal rules of positive law (fiqh) in the classical texts are no longer of any significance. It is easy to suppose this because of the nineteenth and twentieth-century state reformulations of ‘Islamic’ or ‘Muslim’ law, but it is wrong. Perhaps the best way of putting it is to say that the classical fiqh texts are fundamental but no longer primary on a dayto- day basis. This is not a paradox but, I believe, a plain assessment of fact.

The idea that fiqh is no longer important has come about because of the dominance of Western forms of law. However, as I argue below, that dominance is by no means uncontested. The main characteristic of state dominance is selection: the practice of taking from the classical (Arabic) legal thought that which is held to be appropriate for a particular state at a given time.