Law Reform in the Middle East

Abstract

O NE of the most significant, if least noticed, phenomena in the Muslim world today is the efforts which have been made, and are still being made, in country after country, to bring the law more into line with modern conditions and conceptions. This movement is of interest not only to the orientalist and the lawyer, but also to all those who have any contact with these countries or are in any way concerned in their progress and development-for some, at least, of these measures of reform provide at once a mirror and gauge of progress in social, and even national, development; an example of modernism in Islam, where law and theology always go hand in hand; and a fascinating illustration of how a nominally immutable law can in fact be modified and changed. The purpose of this paper, then, is to outline the major developments in law reform in the Middle East during the last few years, summarize the contemporary scene, and try to put this whole phenomenon into its proper perspective. Up till little more than a century ago the canon law of Islam, the Sharl'a, reigned supreme, nominally at least, throughout all these countries. In orthodox theory the life of the Muslim has always been dominated by the twin sciences of theology and law, the first prescribing all that he must believe and the second all that he must do. Thus the Shari'a covers every aspect of life and every branch of law-as well as an enormous amount of what would not be regarded as law at all in any modern sense. All, moreover, is built up on the basis of divine revelation, which is thought to provide the only safe criterion for the ethical evaluation of human actions. In the classical theory, then, the Sharl'a was derived from four main sources: the Qur'an, as the ipsissima verba of God; the Sunna or practice of Muhammad, as inspired in content if not in form; the consensus of the Muslim community, as yet another manifestation of divine inspiration; and the analogical deductions of jurists from these basic sources. With the passage of time orthodox-or Sunni-Islam came to comprise four distinct schools of law which differ from each other considerably in many points but mutually recognize each other's orthodoxy, while a number of heterodox sects-such as the Ibadis, and the different sects of the Shl'a-also arose. In addition many variant opinions 1 appeared within each of these, besides the views attributed to early jurists before the schools crystallized; but successive generations of jurists eventually determined the 'most authoritative opinion' within each school or sect. 1 Some based on the acceptance, or rejection, of various traditions attributed to the Prophet; others on differences of interpretation, analogical deduction, or systematic reasoning; and yet others on varieties of local custom and practice. 43