Islamization and Judicial Activism in Pakistan: What Šarīʿah?

Abstract

Abstract The Islamization of Pakistani law started at the end of the 1970s under the stimulus of the executive and has continued in subsequent decades mainly through the judiciary. Increasingly, Pakistani High courts, and later on Islamic appellate courts, have applied uncodified šarīʿah principles to supplement and, at times, contradict codified law, particularly in the field of family matters and sexual crimes. On the basis of court records, the author reviews first, the religious sources referred to by the judges and, second, the implications of their religiously inspired “judicial activism”, with a focus on the interaction between the Zinā Ordinance and the Muslim Family Law Ordinance. The author argues that the enforcement of Islamic laws has been traversed by two opposite tensions—towards systematization and complexity—and that a traditional discourse based on the nuances of fiqh can either improve or worsen women’s status depending on the sources referred to by the courts.