Codification and Islamic Law: The Ideology Behind a Tragic Narrative

Abstract

This article repositions historigraphically a particular thesis in Islamic legal studies that characterizes Islamic law as utterly incompatible with codification, and by implication the modern administrative state. This article departs from that argument by situating codification efforts in Muslim majority polities alongside other efforts at codification, specifically 19th century Germany and the United States. The article shows that the thesis of incompatibility relies on a constricted reading of the “Islamic”, an overdetermined conception of the state, and an under-appreciation of the populist-cum-democratic ideology that animates the thesis in the first place. A more fruitful way forward is to reify the “state” rather than rarefy it as a theophanic specter. To better appreciate the relationship between Islamic law and codification, the argument suggests, requires that scholars attend to the “state” while resituating the history of the “Islamic” in terms of a history of the “legal”.

Islam, Authoritarianism, and Underdevelopment

“…12 Cesari pushes back on Hallaq's characterization of the state/Islam dialectic as one of incomparability (2018, 2-3; see also Emon 2016). For purposes of our discussion, however, I believe Hallaq is closer to the truth in terms of outlining the independence of the ulema in the face of executive authority.…”

Law and Society Review Special Issue Introduction: Islamic Law, Society, and the State

“…Operating in a similar register, the prominent scholar of Islamic law Khalid Abou El Fadl has surveyed the current state of affairs and found that “as an epistemology, process, and methodology of understanding and searching…Islamic law, for the most part, is dead” (El Fadl and Khaled : 170). These arguments—Anver Emon calls them the “tragic narrative” of Islamic legal studies (Emon : 280)—link the rise of nation states to the demise of a legal tradition nearly 14 centuries old. But this special issue offers a different perspective.…”

Seeing Like an Islamic State: Shari‘a and Political Power in Sudan

“…One of the consequences of this “tragic narrative” of Islamic law (Emon ) is that it leaves little space for genuine political action. Instead, all oppression becomes inevitable, all instability natural.…”