The Sociology of Shari’a : Case Studies From Around the World

This edited collection focuses on the comparative analysis of the application of Shari’a in countries with Muslim minorities (e.g. USA, Australia, Germany and Italy) and majorities (e.g. Malaysia, Bangladesh, Turkey, and Morocco). Most chapters in this new edition have been revised and the book as a whole has been updated to give even more international coverage. This text provides a sociological and global analysis of a phenomenon that goes beyond the ‘West versus the rest’ dichotomy. One example of this is how included are case studies in Muslim minority countries not exclusively located in the West. Although the contributors of this book come from various disciplines such as law, anthropology, and sociology, this volume has a strong sociological focus on the analysis of Shari’a. The final part of the book indeed draws out from all the case studies explored some ground-breaking theories on the sociology of Shari’a such as the application of Black, Chambliss and Eisenstein’s sociological theories. This text appeals to students and researchers working in the sociology of religion. Contents 6 Chapter 1: Introduction: Legal Pluralism and Shari’a 8 1.1 Introduction: Legal Pluralism and Shari’a 8 1.2 The Breakdown of Legal Centralism 15 1.3 Shari’a and Legal Pluralism 17 1.4 The Structure of This Volume 20 1.5 Coda 23 References 27 Chapter 2: Sharī’a in the Qur‘an: A Word Meaning “Law” or a Metaphor Evoking “Path”? 30 2.1 Introduction 31 2.2 Four Contrasting Meanings of Sharī‘a 33 2.2.1 Sharī‘a as Islamic Law (in All of Its Complexity) 33 2.2.2 Sharī‘a As “Path” (in All of Its Simplicity) 36 Sharī‘a Reference in the Quran 36 Sharī‘a as a Path to Life-Giving Water 38 Other Metaphorical Qur’anic Terms for “Path” 39 Sharī’a in the Hadith 41 W.C. Smith on the Use of Sharī’a During the First Few Hundred Years of Islam 41 2.2.3 Sharī’a As God’s Perfect Law in Contrast to Fiqh (Human Beings’ Imperfect Understanding of God’s Law) 42 2.2.4 Sharī‘a as a Source of Positive Law of the Modern State 45 2.3 Law and the Qur‘an 51 2.3.1 Paths in Other Religions 52 2.3.2 Law in the Qur‘an 53 In Fact, a Relatively Small Portion of the Qur‘an Refers to Legal Matters 54 Lack of Legal Terms in the Qur‘an 54 The Qur‘an Does Not Provide a Comprehensive Basis of Law for the Modern State 55 The Qur‘an Does Not Explicitly Claim to Provide a Basis for the Governance of Any State (or Polity) Other Than That of Medina at the Time of the Prophet 57 2.4 Conclusion 58 References 59 Untitled 45 Untitled 49 Part I: Case Studies from Muslim Majority Countries 62 Chapter 3: One State, Three Legal Systems: Social Cohesion in a Multi-ethnic and Multi-religious Malaysia 63 3.1 Introduction 63 3.2 Embedding of Religious Diversity and Legal Pluralism in Malaysia: A Brief Historical Analysis 65 3.3 Social Impact of Religious Diversity and Legal Pluralism in Malaysia 69 3.4 The Social Impact of the Unresolved ‘Federalism’ Puzzle in Malaysia 70 3.5 Federalism and the Application and Non-application of Shari’a Law 71 3.6 Social Cohesion Impacts 74 3.7 Conclusion 75 3.8 Postscript to the Second Edition: Discourses on ‘Islamization’ and ‘Modernization’ in Malaysia: A Commentary 76 References 80 Chapter 4: Modern Law, Traditional “Shalish” and Civil Society Activism in Bangladesh 83 4.1 Introduction 83 4.2 Development of Modern Law in Bangladesh 88 4.3 Civil Society Activism 97 4.4 Legal Pluralism in Bangladesh 99 References 102 Chapter 5: Evolution of Unofficial Muslim Family Laws to Islamist Legal Pluralism in Erdogan’s Turkey 104 5.1 Introduction 104 5.2 Expected Secularization Versus Unofficial Muslim Law 105 5.3 Construction of Unofficial Muslim Family Law 107 5.3.1 Registration and Solemnization of Marriage 107 5.3.2 Age of Marriage: Child Marriages 110 5.3.3 Polygamy 112 5.3.4 Divorce 115 5.4 Conclusion 117 References 118 Chapter 6: The Clerics, Legal Schisms, and Pragmatism in the Islamic Republic of Iran 122 6.1 Religion and Politics in the Monarchist Era 123 6.2 Religion and the Clerics in the Islamic Republic of Iran 126 6.3 The Ja’afari School, Islamization of the Law, and Legal Pragmatism 128 6.4 Political Challenges and Institutionalization of Legal Pragmatism 130 6.5 Intra-clerical Schisms and Institutionalized Legal Control 133 6.6 Recent Pragmatic Changes to the Law 135 6.7 Contemporary Legal Challenges and Debates 136 6.8 Conclusion 141 References 141 Chapter 7: Equivocal Attitudes to Religion in Moroccan Law and Society 145 7.1 Introduction 146 7.2 State, Religion, and the French Protectorate (1912–1956) 147 7.3 The Muslim State and the Freedom of Worship 148 7.4 King as Commander of the Faithful and Guarantor of Free Worship 153 7.5 Religion and the Family Code 156 7.6 Religion and the Penal Code 159 7.7 Conclusion 160 References 160 Part II: Case Studies from Muslim Minority Countries 163 Chapter 8: The Philippine Shari’a Courts and the Code of Muslim Personal Laws 164 8.1 The Socio-Political Context 164 8.2 Our Work in Muslim Communities 165 8.3 The Code of Muslim Personal Laws and the Shari’a Courts: Cases and Incidence 167 8.4 The CMPL and the UN CEDAW 172 8.5 Community Practices of which Shari’a Courts Still Take Cognizance 174 8.6 The ARMM Gender and Development (GAD) Code 179 8.7 Concluding Remarks 180 8.8 Postscript 181 8.9 Postscript to the Second Edition: The Philippine Shari’a Courts & the Code of Muslim Personal Laws 182 References 183 Legislation and Legal Instruments 184 Chapter 9: Shari’a and Muslim Women’s Agency in a Multicultural Context: Recent Changes in Sports Culture 185 9.1 Introduction 185 9.2 Multicultural Citizenship and Policies 186 9.3 Does Multiculturalism Pose a Threat to Social Cohesion? 187 9.4 Is Multiculturalism Bad for Women? 188 9.5 Multiculturalism, Power and Agency 189 9.6 Shari’a and Dress 190 9.7 Shari’a, Dress and Sport in a Multicultural Context 193 9.8 Conclusion 197 References 198 Chapter 10: Shari’a Law in Catholic Italy: A Non-agnostic Model of Accommodation 202 10.1 Introduction 202 10.2 Shari’a Law and Italian International Private Law 207 10.3 Moving on: Islam as an Officially Recognized Religion 211 10.4 Conclusion 217 References 218 Legislation 220 Case Law 220 Chapter 11: Trial and Error: Muslims and Shari’a in the German Context 221 11.1 Introduction 221 11.2 The Starting Point 222 11.3 Changing Atmosphere 224 11.4 The Learning Process 225 11.5 Refugees and Increasing Islamophobia 228 11.6 German Islam Culture 229 11.7 Barriers to Overcome 229 11.8 Shari’a: Controversies Abound 230 11.8.1 Food Preparation Issues for German Muslims 233 11.8.2 Financial Issues under Shari’a 234 11.8.3 The Circumcision Issue in Germany 235 11.9 Concluding Comments 236 References 236 Chapter 12: Islam in Europe: Balancing Between Conflicting Values and Interests – The Case of Unanaesthetised Slaughter of Animals 238 12.1 Introduction 238 12.2 The Legal Framework in European Countries 240 12.3 Recent Judgments in Europe 241 12.4 Socio-Religious Opinions 245 12.5 The Way Forward? A Plea for More Consistent Legal Thinking 246 References 249 Chapter 13: Between the Sacred and the Secular: Living Islam in China 252 13.1 Introduction 253 13.2 A Brief History of Islam in China 256 13.3 Politics of Muslims Identities in China 260 13.4 Variations in Acculturation and the Practice of Shari’a Among China’s Muslim Communities 261 13.5 Islam and the State in China 264 13.6 Migration, New Communities, and Extra-Territorial Rights 267 13.7 Conclusion 271 References 272 Chapter 14: The Case of the Recognition of Muslim Personal Law in South Africa: Colonialism, Apartheid and Constitutional Democracy 275 14.1 Introduction 275 14.2 Historical Background 276 14.3 A Basic Framework of Islamic Family Law 277 14.4 Islamic Marriage and Divorce 278 14.4.1 Marriage (Nikah) 278 14.4.2 Divorce 279 14.4.3 Custody 280 14.5 Present Day Practice of Muslim Personal Law in South Africa 281 14.6 Overview of the Muslim Marriages Bill 287 14.7 Disputed Issues in the Bill 290 14.8 Islamic Law Issues 291 14.9 Constitutional Law Issues 294 14.10 Conclusion 296 References 296 Legislation 297 Case Law 298 Part III: Theoretical and Comparative Considerations 299 Chapter 15: Contradictions, Conflicts, Dilemmas, and Temporary Resolutions: A Sociology of Law Analysis of Shari’a in Selected Western Societies 300 15.1 Introduction 300 15.2 Cautionary Note 301 15.3 Chambliss’ Basic Approach 302 15.4 Extending Chambliss’ Ideas 305 15.5 Shari’a in Canada: The Ontario Case 305 15.6 Shari’a in America: Battles in the States 308 15.7 Australian Controversies Over Shari’a 311 15.8 Conclusion 313 15.9 Epilogue 315 References 318 Chapter 16: Shari’a and Multiple Modernities in Western Countries: Toward a Multi-faith Pragmatic Modern Approach Rather Than a Legal Pluralist One? 322 16.1 A ‘Clash’ or a Diversity of Modernities? 322 16.2 Shari’a and an Islamic Aggiornamento? 326 16.3 The New Australian Conservative Modernity and its Obstacles to Post-Secularism 327 16.4 How to Embrace a Multi-faith Pragmatic Approach to Family Law? 330 16.5 Conclusion 332 References 333 Chapter 17: The Future of Legal Pluralism 336 17.1 The Growth of the Shari’a in the West 337 17.2 Liberalism, Religion and Citizenship 343 17.3 Postscript to the Second Edition 344 References 347 Index 349 This edited volume offers a collection of papers that presents a comparative analysis of the development of Shari?a in countries with Muslim minorities, such as America, Australia, China, Germany, Italy, Singapore, South Africa and the Philippines, as well as countries with Muslim majorities, such as Malaysia, Bangladesh, Turkey, and Tunisia. The Sociology of Shari?a provides a global analysis of these important legal transformations and examines the topic from a sociological perspective. In addition, the third part of the book includes case studies that explore some ground-breaking applications of theoretical perspectives such as those from Chambliss and Eisenstadt.