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Pluralism, Legal

By:
Ido Shahar
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Pluralism, Legal

Contrary to lay Western views of Islamic law as a monolithic, absolutist, and uncompromising system, it has been characterized, throughout its long history, by a considerable capacity to accommodate diversity. Across times and places, Islamic law has incorporated a variety of voices at the doctrinal and judicial levels. Furthermore, it has interacted with multiple other bodies of law that were enacted parallel to it. Put differently, the legal sphere in past and present Muslim polities has been marked by conspicuous legal pluralism.

The term “legal pluralism” was coined in the early 1970s by sociolegal scholars who sought to challenge the dominant view, at the time, that law is necessarily dependent on the existence of a state apparatus. Unlike those who believed that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions” (cf. Griffiths, 1986, p. 3), advocates of legal pluralism promoted a more polycentric view of the law. They claimed instead that (a) “not all the phenomena related to law and not all that are law-like have their source in government” (Moore, 1986, p. 15); and (b) “the judicial systems of most modern societies are not as monolithic and homogenous as seems at first glance” (Shelleff, 1999, p. 193). In the following decades, legal pluralism—as an object of study and a theoretical construct—gained prominence and became a salient theme in law and society scholarship. Concomitantly, it sparked heated debates focusing primarily on conceptual and definitional issues, such as: Is it theoretically and analytically admissible to talk of non-state law? If so, what distinguishes law from normative orders that are not legal? Can there be legal pluralism within a state legal system, and not only between this system and other bodies of law external to it?

Debates concerning the validity and meaning of legal pluralism eventually receded without leading to definitive conclusions. Nevertheless, sociolegal scholars have continued to endorse legal pluralism as a key analytical construct and have conducted empirical investigations into the phenomenon—as they understand it. Consequently, the literature on legal pluralism is rife with different definitions, conceptualizations, and typologies. A detailed discussion of these different conceptions of legal pluralism and of the theories that bred them is beyond the scope of this review. Instead, for the purpose of this entry, legal pluralism will be defined as broadly as possible as “the multiplicity of forms of law present within any social field” (Rouland, 1994, p. 51). This inclusive definition allows us to discuss various types of legal pluralism that permeate the legal sphere in Muslim societies. The review focuses on Sunnī Islamic law, and does not claim to be comprehensive or to exhaust the subject.

Legal Pluralism within the Parameters of Islamic Law.

Islamic legal doctrine is inherently pluralistic. This doctrine is overwhelmingly based on ijtihād (process of reasoning), a derivation and elaboration of law from authoritative sources that may be exercised by any accomplished jurist. Since no one but God can establish which mujtahid is correct in his interpretation, no single opinion is accepted as binding in and of itself. This generates one of the unique features of Islamic law: for any particular legal problem, one may find many different—and equally legitimate—juridical answers (Hallaq, 2009, Introduction, p. 27).

In the Sunnī Islamic world, authority came to be constrained by the doctrine of taqlīd. Most Sunnī Muslims came to accept that over time the number of jurists capable of practicing unfettered ijtihād had declined and, eventually, that no jurists were capable of developing new interpretations of Islamic law entirely without reference to previous jurists. All jurists came to be associated with one of four schools of law (maddhabs). Each of these four schools derived law using very similar methods of interpretation (uṣūl al-fiqh)—each of which was relied in part upon precedential reasoning. Because each of the four schools built upon different precedents, however, they evolved into distinct legal systems. Indeed, in certain matters, variations between the madhhabs may be dramatic. Take, for example, the rules pertaining to divorce or dissolution of marriage at the initiative of the wife. Whereas the Ḥanafīschool provides very narrow grounds for obtaining a judicial divorce, the Mālikī school holds that the husband’s non-provision of maintenance or his absence constitutes legal grounds for a judicial dissolution of the marriage. The Ḥanbalīschool goes even further, allowing the wife to insert stipulations into the marriage contract, to the effect that she can divorce on her own initiative if the husband violates the stipulations (e.g., by beating her or by marrying a second wife). Obviously, for a wife seeking a divorce, these differences between the schools can be dramatic.

Maintaining the pluralistic nature of Islamic law was apparently in the interest of both Muslim rulers and their subjects. During the Mamlūk and the Ottoman empires, rulers acted to preserve the quadruple structure of the judicial system, and prevented the monopolization of legal opinions (and legal decisions) by any single school.

Rulers benefited from the plurality of the legal system and from the ability to “forum shop,” that is, to choose from among several legal forums the one assumed to be most favorable to them. In Mamlūk Egypt, for example, the Shāfiʿī madhhab was considered the official school of the state, but in certain matters—whenever the need arose—rulers did not hesitate to seek out judicial decisions from qāḍīs belonging to other schools. Accusations of heresy are a case in point: Mamlūk sultans could benefit from the conviction of heretics because the property of executed heretics reverted to the state. They therefore had a vested interest in such convictions. However, since Shāfiʿīdoctrine—like Ḥanafīand Ḥanbalīdoctrines—does not require the execution of a repentant heretic, rulers often directed accusations of heresy to Mālikī qāḍīs, who were obliged, by Mālikī doctrine, to impose capital punishment in every case of proven heresy, regardless of subsequent repentance. The masses also enjoyed the benefits of forum shopping. Medieval and premodern sources provide abundant evidence for litigants’ active forum shopping across the Muslim world. This practice was generally approved by jurists as perfectly legitimate. Particularly useful, apparently, was forum shopping between Sharīʿah courts and non-Muslim communal courts (i.e., rabbinical courts and Christian courts), which was practiced by non-Muslim subjects (dhimmīs) of Muslim states.

Legal Pluralism between Islamic Law and Other Bodies of Law.

Despite the claims of some Muslims that Islamic law should regulate all aspects of a Muslim’s life, Islamic law over the years has generally been applied alongside other, non-Sharīʿah bodies of law. The early Islamic dynasties (the Umayyads and the ‘Abbāsids) maintained, in conjunction with the office of qāḍī, several “secular” regulative offices such as chief of police (ra’īs al-shurṭah) and investigator of complaints (ṣāḥib al-maẓālim or nāẓir fi maẓālim), which enacted extra-Islamic normative orders that were nevertheless compatible with the Sharīʿah. In the Il-Khanid, Timurid, and Ottoman states, Islamic law was applied alongside permutations of highly institutionalized legal codes—the Mongol Yasa and the Qānūn, respectively. In many modern Muslim states, Sharīʿah courts operate side by side with “secular” or civil courts. In all these cases, jurisdictional struggles between the Sharīʿah and non-Sharīʿah bodies of law were not an uncommon sight.

An illustration of the accommodating attitude displayed by Muslim jurists toward non-Sharīʿah bodies of law can be found in the complex and multifaceted relations between the Sharīʿah and local customs (ʿurf, ʿādah) in many Muslim locales. Admittedly, some scholars presume that representatives of “orthodox” Sharīʿah (qāḍīs and jurists) will always strive to enforce Sharīʿah norms and to Islamize custom (Layish, 2011). Nevertheless, as a practical matter, one finds in most Muslim societies over the centuries a sort of modus vivendi, which allows co-existence of Sharīʿah and customary norms. For example, the Minangkabau of West Sumatra, who converted to Islam in the sixteenth century, still maintain a matrilineal kinship system that is anchored in their customary law (adat) and that is in sharp contradiction to the patrilineal and patriarchal principles of Sharīʿah law. The matrilineal adat system continues to regulate their kinship relations, group affiliations, and inheritance arrangements, but the Minangkabau nevertheless view themselves as pious and observant Muslims. The history of the Minangkabau is thus characterized by ongoing negotiations between Sharīʿah and adat, which have coexisted and accommodated one another for centuries.

The Ḥanafīschool, the dominant school in the Ottoman Empire, was especially tolerant toward local customs. Indeed, Sharīʿah courts in the Ottoman Empire were apparently institutions that actively facilitated a regime of legal pluralism. Qāḍīs presiding in these courts applied not only Sharīʿah law, but also customary law and the imperial qānūn—a “secular” code promulgated by a succession of Ottoman sultans. A similar amalgamation can be observed in present-day Indonesia, where judges, jurists, and lawyers draw on different normative orders—the Sharīʿah, the many forms of adat (custom), statutory law, and human rights law—in the process of legal reasoning. As argued by Bowen (2003, p. 257), these normative orders are formally distinct from one another, but in practice they intertwine to constitute a heterogeneous normative space. Furthermore, they continuously influence, shape, and reshape one another as actors creatively combine elements that they draw from them. Indeed, complex interactions between Sharīʿah, adat, colonial rules, and, at later periods, national legislation, are particularly characteristic of the legal sphere in the “Malay world” (Malaysia and Indonesia), and have therefore attracted much scholarly attention.

A vast body of literature on legal pluralism has accumulated since the 1990s. It shows that the legal sphere in contemporary Muslim societies in the Middle East, Africa, and the Caucasus is just as conspicuously pluralistic as that of Malaysia and Indonesia. This should cause us to be skeptical about the lament of some scholars over the loss of openness and pluralism in Islamic law because of its codification in the modern era. Clearly, in many nation-states in the Muslim world, statutorily unified Sharīʿah codes replaced the open-ended jurists’ law. Nevertheless, other forms of pluralism were quick to emerge. In particular, globalization processes have augmented the continuous, profound encounters between Sharīʿah norms and values and other normative orders.

This new development is evident not only in Muslim communities in the West, but also in the modern Arab world and in Muslim South Asia. In the context of globalization, new information technologies, and transnational social networks, Muslim jurists around the globe struggle to provide answers to new moral and social dilemmas. In so doing, they also define and redefine what the Sharīʿah is: what common ground it has with other normative systems, such as international human rights law, and what makes it a singular normative system with its own claims for truthfulness, morality, and justice. This intellectual effort is no less impressive than the efforts of mujtahids in previous generations, and it sustains the vitality and pluralism of the Sharīʿah as a normative system.

[See also ‘ABBāSID DYNASTY, ROLE IN LAW; ADAT; CAUCASUS; DHIMMīS; EAST AFRICA; ḤANAFī SCHOOL OF LAW; ḤANBALī SCHOOL OF LAW; IJTIHāD; MADDHAB; MāLIKī SCHOOL OF LAW; MAMLūK STATE AND LAW; OTTOMAN EMPIRE, ISLAMIC LAW IN; SHāFIʿī SCHOOL OF LAW; SOUTH AFRICA; SOUTHEAST ASIA, subentries on INDONESIA and MALAYSIA; TAQLīD; UMAYYAD DYNASTY AND LAW; ʿURF; and WEST AFRICA.]

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