SOAS Research Online

Abstract

According to our present interpretation of Islamic legal history, the total body of the traditional Shari'a reflects an evolution of social circumstances and moralities of past days. Now that social circumstances of the twentieth century are different from the previous centuries of Islam, one would expect that the Shari'a, when enforced today as a law of personal status, is still evolving, this time according to twentieth century circumstances and values. True to expectations there have been changes in the Shari'a as now applied in statutes, A question still remains, however: How deep and within what limits are these changes? The original limits on the growth of the Shari'a were only the Qur'an and the Sunna of the Prophet and of Followers. As the centuries progressed, the limits on the Shari'a became more numerous. The law became what the jurists dictated. The ''door of 'ijtihad" closed. H.A.R. Gibb succinctly describes the import of the closing of the door: "The principles on which jurists built the system were regarded as immutable and in time the system built on these principles was itself considered an inseparable part of the principles and hence immutable too," (Mohammedanism, Oxford, 1962, page 95) In this century two Muslim countries are considered to have diverged radically from the "immutable" system. They are Turkey and Tunisia. Turkey totally rejected the Shari'a as a source of law to be enforced by the State, even though her leaders and citizens profess the Muslim faith. One may follow the Shari'a in private life, but never expect the State to enforce claims on the basis of the Shari'a. The logic behind the rejection is compelling: The one's can be viewed in its history as a manual that people expected to be enforced in a day when one's religious status was to a large extent one.s legal status. Today one's religious status is a personal matter, not affecting one's legal capacities. Therefore, people cannot expect the Qur'an to be enforced as a law of the State. Islam will still prosper, but only as a religion. Tunisia, on the other hand, has retained legal enforcement of some provisions of the Shari'a and dispensed with others. Tunisia has not explicitly rejected the Quran as a basic source of law, neither has she explicitly named it as a basic source of law. In contrast, Moroccan law provides that where the Code of Personal Status has gaps, the traditional Shari'a shall apply (article 82 of the Code du Statut Personnel et des Successions, Dahir No. 1-57-343 of Rebia II 1377 (22 November 1957) for Parts I and II). Tunisia came closest to denying that the Islamic ethic is the source of the law when one of its enactments provided that no one's religious creed has enough authority to deny the authority of the Tunisian law (Law 57-40 of 27 September 1957-(2 Rabia I 1377) on the suppression of the Rabbinical courts; Beylical decrees of 25 September and 25 October 1956 on suppression of the courts of the Shari'a - By these three laws all Tunisians became subject to the Code of Personal Status promulgated by Beylical decree of 13 August 1956, effective 1 January 1957). On the other hand there are many indications that the law of personal status grew and continues to grow out of the Islamic ethic. The annotated version of the Code of Personal Status (M.T. ES Snoussi, 1970), government memos, the Constitution of June 1959 (Preamble: "The will of the people is to remain bound to the teachings of Islam" - J.O.R.T. NO. 30 of 1 June 1959) all imply that judges shall refer to the Shari'a to answer points not covered in the Code of Personal Stauts. Furthermore, when the Tunisian judges and the President himself speak of the historical evolution of the Shari'a according to social circumstances, the meaning of evolution covers only the reasoned interpretations which old jurists have placed on the Qur'an and the 'ahadith. The concept of evolution does not apply to the Qur'an and the 'ahadith. These basic religious sources re-main for all time; it is the deductions from these sources that change. Tunisians recognise that, in the past, deductions from the Qur'an were coloured with opinions of what was possible and what was not within given century. Today people have a different sense of what is possible and what is not. It is the Tunisian, rather than the Turkish, alternative to legal reform that motivates this dissertation. Tunisians have, in terms of Gibb, kept the principles of Islam immutable; but the system built on them is no longer. regarded as immutable. Tunisia accepts the "moral imperative" of Islam (Gibb, page 191), that is, the obligation to give legal force to the Qur'an as a practical expression of obedience to Allah. Why Tunisia has chosen to accept the imperative; how far she practises obedience; What she has substituted for old interpretations of the Qur'an and 'ahadith and the traditional methodology for arriving at a new practical expression of Islam are questions to which this dissertation addresses itself. (Abstract shortened by ProQuest.).