Volume 4, Spring 2023

Editor’s Introduction to the Special Issue

2023-06-09T16:18:16+00:00

This special issue explores the interactions between Islamic law and other legal traditions during the modern period, particularly in the contexts of colonialism, imperialism, and centralized bureaucratic states from the eighteenth to early twentieth centuries. The three essays in the issue contribute to the ongoing scholarly debates that present contrasting views on the fate of sharīʿa during this period. Between the two sides of this debate, there is a space ripe for exploring the fitness and movement of Islamic law in the contested period between tradition and modernity.

Debating Sharīʿa in Egypt’s National Courts

2023-06-09T16:23:52+00:00

This article explores debates about the role of Islamic law (sharīʿa) in the early development of the native courts in Egypt, established in 1883. Current literature focuses on the impact of European influence, arguing that the native courts and the codes they implemented broke away from a past dominated by Islamic law, sidelined pre-modern juristic (fiqh) understandings, and reflected an importation of European norms in service of a growing modern state. Using periodicals published within the first ten years following the establishment of the native courts, this article argues that, for both supporters and detractors, the question was not whether the sharīʿa was being implemented but how it should be understood and utilized. Ideas informed by external influences, such as the rule of law and the creation of an independent judiciary, were significant and helped to shape the development and operation of the native courts. However, these ideas were viewed by observers through a broader conceptualization of the sharīʿa that included the work of the political authority to achieve a central goal: to nationalize the sharīʿa and establish justice in a rapidly changing social and legal environment.

Forging a Habsburg Islamic Legal System

2023-06-09T16:17:34+00:00

The integration of Islamic law into the Habsburg administration in Bosnia and Herzegovina following the 1878 occupation marked a significant shift in the existing Islamic legal system. This paper examines the impacts of the legal reforms implemented by the Austro-Hungarian government, focusing on the agency of local qāḍīs and plaintiffs in the process. The Habsburg bureaucracy reduced the application of Islamic law to the private sphere of family and marriage and established a two-tier court system, including a Supreme Sharia Court in Sarajevo, under state control. The analysis suggests that the integration of the Sharia courts into the Habsburg administration began a process of translation of legal norms, knowledge, values, and practices, resulting in a unique blend of Ottoman Islamic legal practices and Habsburg legal structures and values. The paper argues that this created new opportunities for legal claim-making by local plaintiffs.

“Emancipating” Muslim Women in Early Nineteenth-Century Russia

2023-06-09T18:08:08+00:00

This paper examines the legal authority of Fathullah Huseyn ughli, a prominent jurist (ākhūnd) of the Volga-Ural region between the 1820s and his death in 1843. The analysis focuses on the fatwās he issued and legal cases he resolved regarding women’s divorce. Huseyn ughli’s fatwās reveal several significant points. Firstly, despite increased regulation of Muslim marriage and divorce by the Russian Empire during this period, Huseyn ughli maintained his legal authority and made independent legal decisions with the authorization of the Orenburg Assembly. Secondly, his fatwās highlight his support for women who were suffering and his efforts to find solutions for each unique case with the assistance of local Muslim communities. He utilized his legal authority to identify loopholes and deliver rulings that diverged from mainstream Ḥanafī opinions, particularly regarding divorce based on non-maintenance. However, his flexibility was limited after 1841–42, when Muftī Suleymanov intervened, establishing the mainstream Ḥanafī position that prohibited divorce in such cases and enforcing it as a rule for all Volga-Ural ʿulamāʾ.