Islamic law: a question of adaptability

Abstract

The thesis “Islamic Law: A Question of Adaptability” seeks to research the concept of Sharia and Islamic religious law of Sunni branch and its capacity to be adapted in the changing time and living conditions. To achieve the object of the research, the question of adaptability of the Sharia and Islamic law is analysed in three directions: in the context of Islamic legal theory and Islamic historical development; in the conditions of the contemporary scholarly discourse on the subject of Islamic law; and on the question of how the Sharia and Islamic law is implemented today within Muslim communities in the West and in the current Middle East. First of all, the thesis focuses on the concept of the Sharia with the aim to clarify a number of overlapping definitions which are frequently used interchangeably with the Sharia, and to question an old-fashioned tendency to equate Sharia with law. The author suggests to refrain from the still prevailing mistaken tendency to equate Sharia with law in the scholarly discourse and jurisprudence because the Sharia=law approach is insufficient to reveal the concept of the Sharia in its essence. The second chapter of the dissertation analyses Islamic law in the historical context with the aim to prove the fact of adaptability of the Sharia and Islamic law. After the research of historical Islamic legal theories, their methodological basis and the results of implementation, the author concludes that the adaptability of Islamic law is a historical fact. The third chapter is devoted to the analysis of Islamic legal sources which shows that neither the sources of divine origins nor the sources of rational nature might be regarded as the obstacle in the human efforts to make the Sharia and Islamic law adaptable. Further, the author studies the concept of ijtihad through which Islamic fiqh law is derived from the sources of Islamic law. By means of comparative analysis the research takes into account a set of specific Islamic legal rules of four Sunni fiqh schools. Also, the author analyses traditional Hanafi fiqh law rules and their place in the selected civil codes of modern Muslim states in order to find out what place and role traditional Islamic law of Hanafi branch plays in modern legal acts. The fifth chapter explores the contemporary scholarly discourse on Islamic law and prevailing methodological approaches towards its sources and their interpretation. As the research of the newly formulated idea of reform suggested by the representer of reformative/liberal approach showed, the least developed questions of Islamic law, albeit solely on the scientific level, might be fully reformed. Eventually, the last chapter of the dissertation makes a threefold research of the Sharia and Islamic law as it is applied in the contemporary practice. The analysis of the worldwide phenomenon of issuing Islamic religious opinions (fatwas) as well as the research of the newly formulated methodological theory of fiqh for Muslim minorities living in non- Muslim countries proved well the potentiality of the Sharia and Islamic law to be adapted in the changing time and social circumstances. In addition to this, the research made in the chosen Islamic institution operating in the West and the analysis of the Western statutory law and court judgments showed how through these two channels the Sharia normative rules and Islamic law are partly implemented in the Western countries. In the end, the research of the contemporary state-made law of the Kingdom of Jordan revealed to what extent it is influenced by traditional Islamic law, what transformations Islamic law undergoes while being the consisting part of the Jordanian state-made law.