Muslim Laws, Politics and Society in Modern Nation States

Dynamic Legal Pluralisms in England, Turkey and Pakistan

Ihsan Yilmaz

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351916240
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Drawing on theories of legal pluralism, this book tests whether and to what extent claims of the modern nation-state laws to exclusive dominance over other spheres are tenable, and reassesses the operation of law in society. Incorporating a combination of legal theory, post-modern critique and socio-legal analysis of three current jurisdictions in which Muslims play an important role, the volume identifies Muslims' current socio-legal situation and attitudes from different perspectives and reconciles them with modern legal systems in three key countries. It analyzes the conflict between the assumptions of modern legal systems and plural legal realities, and also examines attempts by modern legal systems to impose official laws in the face of resistance from unofficial Muslim laws and discusses possible responses to the challenge of dynamic Muslim legal pluralism. A valuable resource for students, researchers and academics with an interest in the areas of Islamic law and politics, and the interplay between secular law and religious/cultural traditions.

Chapter 1
Law, Politics and Society in the Post-Modern Condition

One of the most crucial legal and sociological issues of the modern age is how far and with what consequences law could be used in the process of the deliberate forming of society. In this regard, the modern nation-state law has often been employed as a modernizing agent or as an instrument of modernization. The law is expected to act as an agent of change and development. Almost all modern nation-states have steadily tried to use law as a tool of social engineering and as a mode of organizing beliefs and values to shape and to uniformize their societies in the modern era.

Post-modernity provides a philosophical frame or paradigm in which modernity is critically examined, using primarily the techniques of ‘deconstruction’ developed by hermeneutics and social linguistics.¹ Post-modernity can be seen as a multifocal symbol, which in its most generalized usage challenges the assumption of universality inherent in the legitimating discourses of modernity such as secularism, rationality, social stratification, urbanization and industrialization. There are various façades of post-modernity: Indeterminacy, fragmentation, irony, the fictionalization of identity, carnivalization, decanonization and hybridization (Hassan 1985: 119).

For Lyotard (1984: xxv), post-modern society is characterized by a disbelief in the availability of a privileged metanarrative or the ultimate discourse of the universal ‘truth’. Instead, legitimization becomes plural, local and inherent within a specific context. Post-modern theory distrusts all attempts to create general, large-scale totalizing theories in order to explain social phenomena (Douzinas et al 1991: x). In the post-modern age, unitary theories of progress are increasingly being questioned. Objective ‘truth’ has been replaced by the plurality of viewpoints. Relative truths are on the stage. This undermines the existence of social life as a contained and integrated totality, a unified system of meaning. As a result of this mentality, the particular, the multiple and the heterogeneous are acknowledged and legitimized. In the post-modern condition, what one sees is a proliferation of social codes relating to ethnicity, gender, culture and religion. As a result, a field of stylistic and discursive heterogeneity has emerged. This age is characterized by diversity and cultural relativity.

Post-modern scholars have argued that knowledge claims can only ever be partial and local, as post-modernity implies a mistrust of the metanarratives of modernity (Lyotard 1984: 82). It is accepted that differences do not go away. Thus, post-modernism represents a radical potential in the attempt to formulate a defence of difference, while toleration gains importance (Rosenau 1992: 98; Bauman 1992: 2–23, 30–36). Post-moderns advocate that ‘every culture… is equivalent to every other one’ (Wagner 1995: 55).

Legal modernity is challenged in this age as well. It is being recognized that social space is not a normative vacuum. Local laws, along with local cultures and identities, are preserved. Thus, totality in the legal arena is questioned. Postmodern analyses of law and social movements have assaulted the claims of universal theories.

Legal pluralism is a key concept in a post-modern view of law. This broader conception of law indicates a more complex relation between law and society. Law is conceptualized as more plural, not located entirely in the state. This legally plural notion of law in which state law is only one of many levels does not give any privilege to centrality. While the legal officials and legal scholars assume the state monopoly of legal production, research on legal pluralism maintains the existence and circulation of a society of different legal systems, the state legal systems being only one of them. The whole structure of law of a people is not limited to the monistic system of state law. The whole structure of law as an aspect of culture should include all regulations which the people concerned observe as law in their cultural tradition, including value systems. An increase in attention to discourse, narrativity, and language along with legal culture, legal ideology, and legal consciousness could be observed in the post-modem condition. Faith in the progressive possibilities of law has been shaken. A new agenda about justice in today’s world of discursive power and decentred subjectivities emerged in which no group is authorized to construct a vision of a socially just world.

There are crosscutting ties that are maintained by individuals on various levels in the post-modem condition. These ties do not replace territorially-based communities or bureaucratically organized formal organizations, but are superimposed on them. The self-identified and reflexive post-modern navigator is in continual dialogue with formal organizations and with ethno-religious communities whose boundaries are not necessarily defined by geography. The boundaries of a society or of a community no longer correspond with the modern nation-state’s political borders. In that condition, ‘the local’ does not remain local since in the multicultural context of a country, ethnic or religious groups may appear as relatively isolated minorities, but when expanded into the global framework, their relationships must be understood as part of a transnational network (McLelland and Richmond 1994: 665).²

Law is a socio-cultural construct and not an Austinian political one, thus, legal pluralism or legal post-modernity always co-exist with multicultural reality. In the socio-legal sphere, which consists of numerous semi-autonomous fields, law both helps to constitute social interaction and is itself constructed by social action where there is a continual dialogue between small, local narratives and totalizing metanarratives. Muslims have become the main players of this post-modern process.

Muslims not only have challenged the presumptions of legal modernity but have also shown that ‘they can become citizens while at the same time retaining their Muslim identity’ (King 1995: 112). They are not lost between cultures. They skilfully navigate across different cultures. In the normative space they reach the same end as ‘skilful legal navigators’: They apply relevant law in relevant contextual situations aiming to meet demands of different overlapping normative orderings. This phenomenon is a post-modern response to legal modernity. It reminds us again that legal modernity has limits and that legal post modernity is a reality. People retain their Muslim law in even secular and modern contexts in a post-modern way although uniform legal systems try to transform society through law, aiming for homogenization.

This book identifies Muslims’ current socio-legal situation and their legal attitudes from different perspectives. The main aim of this study is to analyze the conflict between the assumptions of modern legal systems and plural legal realities. While there is a reconstruction of unofficial Muslim laws in the modern and officially uniform secular legal systems of England and Turkey, in the case of Pakistan, where Islamic laws are recognized to a great extent, legal reform attempts in the areas of Muslim family law by the Islamic Pakistani state have so far not been successful and have led to intense clashes. The study shows that Muslims in these countries react to the modern frameworks of legal systems and do not abandon their locally formulated and interpreted Muslim laws. State formulations and interpretations of Islamic law, as in the case of Pakistan, or its more or less total disregard, as in the cases of Britain and Turkey, lead people to reconstruct their own unofficial Muslim laws.

In these three scenarios, modern legal systems try to impose official laws, yet face the resistance of unofficial Muslim laws. The study argues that Muslims recreate, reconstruct, redefine and restructure their Muslim laws as unofficial laws even within a secular or modern framework and thus undermine and obstruct, in various ways, the claim of official law to be the unique regulator of human behaviour in any given social field. The main objective of the study is to show that there will always be dynamic legal pluralism stemming from unofficial Muslim laws.

In the case of Britain, it seems that the Muslim minority has not abandoned its adherence to customary laws and has reconstructed it in a new form. This study shows the same phenomenon in Turkey as well. In Turkey, at least some segments of the Muslim population have reacted negatively to the official, modern, and supposedly entirely secular legal system and are instead following Islamic rules. In Pakistan, again the traditional population has reacted to the modern legal system, which clashes with traditional local understandings and applications of Islam, even though the modern legal system claims to be Islamic.

Thus, in all three manifestations, Muslims are affected by official laws while at the same time maintaining their Muslim laws and local customary practices. Consequently, unofficial laws are reconstructed. In the English and Turkish cases, the net result is reconstruction of adapted Muslim unofficial laws. It is very clear that this evolution of Muslim laws is a direct consequence of interactions between specific groups of Muslims and the modern legal systems in which they live. As a result of this interaction, new hybrid laws have reconstructed. When official law cannot solve or does not recognize the problems of Muslim communities, people invent their own laws and find solutions to their problems even in a secular framework.

In addition, this study argues that in all cases, the official law is undermined. Recognizing that law has limits, modern legal systems, on some points, make some concessions; they are forced to accommodate more diversity and to make further readjustments over time.

The study also elaborates on the question of what would be a proper response from the side of both modern legal systems and Muslims to the challenge of postmodern legality. In that context, the question whether a Muslim personal law system can and needs to be introduced in Britain and Turkey will be examined. On this issue, the current situation of Pakistani Muslim law, and problems and issues in the Pakistani personal law system, are matters of considerable relevance and shed important light on the debates in Britain and Turkey. The case of Pakistan shows most clearly that whether one introduces a personal law system (and gives recognition to Muslim family law) or not, legal diversity and legal pluralism will not be overcome.

This study first attempts to depict a clear picture of the operation of law in society with special reference to legal pluralism studies. The study also endeavours to apply the theories of legal pluralism to the practical sphere of Muslims, Muslim laws and legal postulates. Thus, it portrays the Muslim dimension of jurisprudence or legal philosophy studies vis-à-vis legal pluralism. Muslim legal pluralism can exist at four different levels: Individual, communal, national, cross-national or global. Firstly, legal pluralism emerges at the individual level of the Muslim. Secondly, one sees legal pluralism at the community level. Thirdly, legal pluralism is an issue at stake on a national level within the borders of a country. Fourthly, legal pluralism emerges as a cross-national or global phenomenon as a result of the notion of universal ummah.

The literature as discussed in chapter 2 confirms a general principle that there is an inseparable and dynamic interrelationship between law and culture, as law is a cultural construct. The whole picture of law as it operates in society is composed of three levels: Official laws, unofficial laws, and legal postulates, since law must be understood as a cultural construct involving ideas, structures, processes, and practices. Law exists at every level of society, sometimes as state law, sometimes as norms or rules of conduct, and it usually conveys a cultural and historical meaning. People may be born into a particular culture and brought up to uphold certain values, but in the process of interacting with structures, they also create, continue, and constitute those structures. Law is a process shaped by rules and a cultural logic that is called a ‘legal postulate’. The socio-legal sphere is not a normative vacuum and the operation of law is constantly under the influence of legal postulates that exist in this sphere. Individuals and communities deal with sociolegal issues under the influence of legal postulates. These postulates could be religious, ethnic, racial, political and economical. Here, unofficial law is not only indigenous law, but might be of several types as can be seen in the cases of England (ethnic minority laws and customs), Turkey (Muslim local law and customs) and Pakistan (local Muslim laws and customs other than the ‘Islamic law’ of the state). Law can evolve in expected and unexpected ways, through many small institutional changes and through people interacting at the borders of law who create new normative patterns and semi-autonomous spheres. The maintenance of law is a dynamic process of constant struggle and readjustment. Law has a tendency to intrude into all types of relationships, interacting with them, and changing itself until both become altered. As a result, a reconstruction process emerges in which laws change and adapt.

Legal pluralism is not only an issue for traditional societies, but also a concern for contemporary ones, as virtually every society is, in a sense, multicultural. Thus, dynamic legal pluralisms have come into operation as ubiquitous phenomena of the post-modern age. As a consequence of the interconnectedness of social orders, there is a mutually constitutive relation between official law and unofficial law(s). Dynamic legal pluralism is a direct result of the relationship between official law and society. It is not an issue of domination but constitutive of social life. Both official law and semi-autonomous social fields are composed by their interrelations to one another.

In the process of the active interaction between official and unofficial laws, official law may use the symbols of the unofficial law. On the other side of the fence, however, unofficial law may use the symbols and meanings of the state system, too. As a result of this mutual influence, while unofficial law may transform the meaning and effect of official law, the character of unofficial law may be affected at the same time in unanticipated ways by developments in the official law.

Whilst unofficial law may actively resist the demands of a modern official legal system, it may also actively incorporate the rules of the official law into its own rule system. In this process, unofficial law is open-ended, responsive to and grounded in social relations, albeit continually subject to normalization and partial termination. In the post-modern condition, ‘there is a continual dialogue between small, local narratives and totalizing metanarratives’ (McLellan and Richmond 1994: 668). A reconstruction of unofficial laws takes place as merely another swing in the pendulum towards increasing complexity in the dialogue. The post-modern stage of legal development is one of plurality rather than facile uniformity. In addition, at this stage, one can even talk about Utopian legal subjectivity; a transformation ‘from the law-abiding citizen to the law-inventing citizen’ (Santos 1995: 573). This legal subjectivity is facilitated by ‘an interplay of synchronic and diachronic perspectives that continually construct and reconstruct identity’ (McLellan and Richmond 1994: 669). Individuals in the post-modern arena would become subject to more than one law and might, in some cases, be diametrically opposing as sujets de droits. However, they would overcome this challenge as skilful legal navigators and, in a way, would manipulate the laws and combine and amalgamate different types of normative orderings. They are the main actors of a post-modern scene in which new laws are continuously invented. It would appear that law, be it official or unofficial, would thence be continually constructed and reconstructed.

It is plausible to argue, then, that this phenomenon is ubiquitous and may be the case for Muslims as well, as they have become important main players in the postmodern process. This study asks whether dynamic Muslim legal pluralism, as a glocal phenomenon, is on the stage, and whether the reconstruction of unofficial Muslim laws is a mundane reality of everyday life that challenges legal modernity. It is also analyzed in the subsequent chapters whether Muslims recreate, redefine and reconstruct their laws and customs as ‘skilled legal navigators’, and, in the case of family law issues, if they develop strategies to satisfy the requirements of both official legal systems of modern nation-states and their ‘Muslim law’.

The study consists of eight chapters. Following this introduction, the second chapter undertakes five major functions: Firstly, it briefly discusses the definition of law as a socio-cultural construct. Then, it analyzes legal modernity, the limits of law and the interaction between official and unofficial laws. Thirdly, it focuses on the theories of legal pluralism in some detail. In this context, a survey of legal pluralism studies is provided and classifications of legal pluralism are discussed. Fourthly, this chapter tries to find a formulation of the operation of law in society, while combining the theories of post-modernity and studies of legal pluralism. It, then develops an analytical tool to observe dynamic legal pluralism. Fifthly, still remaining at a theoretical level, the chapter elaborates on local, ethnic, and religious laws in a dynamic legal pluralist context. The following chapters are based on this theoretical framework.

The third chapter is another theoretical analysis: Muslim legal pluralisms in the post-modern age. It first looks at the traditional Muslim legal plurality or internal Muslim legal pluralism. In this context, the concepts of Shari’a, fiqh and ijtihad are defined and discussed. Almost 90 percent of all Muslims all over the world are Sunni Muslims. Shia Muslims who are seen as heteredox by the majority are mostly concentrated in Iran and Iraq. There are also some small Shia minorities in Turkey and Pakistan but the great majority of Muslims who live in all the three countries studied here are Sunni and almost ...