DIVINE AND HUMAN LAWS: CRISIS AND CONFRONTATION TODAY
Already in the middle of the nineteenth century in many Islamic countries, the rule of theShari‘ah as a legal system was either limited to personal laws governing the family, inheritance, and so on or replaced by Napoleonic codes or English common law and European-style courts. By the time most Islamic countries gained their independence after World War II, the fullShari‘ah was applied only in a few lands such as Saudi Arabia, the Yemen, and Afghanistan.
These countries may have had various political and economic problems, but at least they did not experience the tension between two different legal systems and philosophies that other Islamic countries did. Unfortunately, the application of theShari‘ah did not prevent Yemen and Afghanistan from being invaded by foreign forces and having their traditional patterns of life, including their legal aspects, deeply disturbed and in some places shattered.
Despite these tragedies, however, Shari‘ite Law played a central role in preserving the religious character of the life of the people of these countries even under great duress.
Despite all the political turmoil in the Islamic world during the past half century, there has been an attempt in most Islamic countries to return to the Divine Law as contained in theShari‘ah , while incorporating and taking into consideration human laws associated with modern situations in which Muslims find themselves. Moreover, there continues to be extensive discussion on theShari‘ah itself.
In the Sunni world, as already mentioned, many want to open the gate of ijtihad again, and there are those who speak of combining rulings from different classical schools of Law such as the Shafi‘i and the Hanafi. Also, there are now a number of lay lawyers (not formal members of the class of ‘ulama’, the traditional custodians of theShari‘ah ) who believe that they have the right to make juridical decisions(fatwas) and formulate new Shari‘ite rulings. Even in Shi‘ite Iran, where the ijtihad is practiced afresh in every generation, a number of modernized religious thinkers speak of the “dynamicShari‘ah ,” which they contrast with the old static one. In the field of law, just as in the field of politics, which is closely related to it, there is much debate and discussion going on throughout the Islamic world, but there is no doubt that the question of the revival of theShari‘ah after its eclipse during the colonial period is at the center of the concerns of contemporary Islam.