Editing Sharia (section)

==Modern legal reforms==
===Under colonial rule===
Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations.{{sfn|Hallaq|2010|p=174}} Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations.{{sfn|Vikør|2014}}

[[File:Warren Hastings.jpg|thumb|upright|[[Warren Hastings]] initiated far-reaching legal reforms in British India.]]
The first significant changes to the legal system of [[Presidencies and provinces of British India|British India]] were initiated in the late 18th century by the governor of Bengal [[Warren Hastings]]. Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, ''[[Al-Hidayah]]'', from Arabic into Persian and then English, later complemented by other texts.{{sfn|Hallaq|2010|pp=176–81}}{{sfn|Masud|2009}} These translations enabled British judges to pass verdicts in the name of Islamic law based on a combination of Sharia rules and [[common law]] doctrines, and eliminated the need to rely on consultation by local ulema, whom they mistrusted. In the traditional Islamic context, a concise text like ''Al-Hidayah'' would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case. The British use of ''Al-Hidayah'', which amounted to an inadvertent codification of Sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world.{{sfn|Hallaq|2010|pp=176–81}}{{sfn|Stewart|2013|p=503}}

British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed".{{sfn|Hallaq|2010|pp=176–81}} In the course of the 19th century, criminal laws and other aspects of the Islamic legal system in India were supplanted by British law, with the exception of Sharia rules retained in family laws and some property transactions.{{sfn|Hallaq|2010|pp=176–81}}{{sfn|Masud|2009}} Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment.{{sfn|Hallaq|2009b|p=378}}{{sfn|Masud|2009}}  The resulting legal system, known as ''[[Anglo-Muhammadan law]]'', was treated by the British as a model for legal reforms in their other colonies. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of Sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.{{sfn|Masud|2009}}

===Ottoman Empire===
[[File:1879-Ottoman Court-from-NYL.png|thumb|upright=1.5|An Ottoman courtroom (1879 AD drawing)]]
During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the [[Ottoman Empire]], the first such changes in the legal sphere involved placing the formerly independent [[waqf]]s under state control. This reform, passed in 1826, enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education. Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects.{{sfn|Hallaq|2010|pp=174–76}} 

The [[Tanzimat]] reforms of the 19th century saw reorganization of both Islamic civil law and sultanic criminal law after the model of the [[Napoleonic Code]].{{sfn|Rabb|2009b}}  In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the ''[[Mecelle]]'', was produced for use in both Sharia and secular courts. It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a ''[[qanun (law)|qanun]]'' (sultanic code), which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema.{{sfn|Hallaq|2010|pp=174–76}} The 1917 [[Ottoman family law|Ottoman Law of Family Rights]] adopted an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent.{{sfn|Mayer|2009}} The [[Republic of Turkey]], which emerged after the [[dissolution of the Ottoman Empire]], abolished its Sharia courts and replaced Ottoman civil laws with the [[Swiss Civil Code]],{{sfn|Rabb|2009b}} but Ottoman civil laws remained in force for several decades in Jordan, Lebanon, Palestine, Syria, and Iraq.{{sfn|Mayer|2009}}{{sfn|Rabb|2009b}}

===Nation states===
[[File:Mahkamah Syariyah Aceh.jpg|thumb|''Mahkamah Syariyah'' (Sharia court) in [[Aceh]], Indonesia]]

Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation-states of the Muslim world.{{sfn|Hallaq|2010|pp=182–83}} Sharia courts at first continued to exist alongside state courts as in earlier times, but the doctrine that sultanic courts should implement the ideals of Sharia was gradually replaced by legal norms imported from Europe. Court procedures were also brought in line with European practice. Though the Islamic terms ''qadi'' and ''mahkama'' (qadi's/Sharia court) were preserved, they generally came to mean judge and court in the Western sense. While in the traditional Sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court. In the 20th century, most countries abolished a parallel system of Sharia courts and brought all cases under a national civil court system.{{sfn|Vikør|2014}}

In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law. In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws.{{sfn|Vikør|2014}} Many Muslims today believe that contemporary Sharia-based laws are an authentic representation of the pre-modern legal tradition. In reality, they generally represent the result of extensive legal reforms made in the modern era.{{sfn|Hallaq|2010|pp=182–83}} As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes,{{sfn|Vikør|2014}} including:
* Selection of alternative opinions from traditional legal literature (''takhayyur''), potentially among multiple madhhabs or denominations, and combining parts of different rulings (''talfiq'').{{sfn|Hallaq|2010|pp=182–83}}{{sfn|Schacht|Layish|2000|p=155}}
* Appeal to the classical doctrines of necessity (''darura''), public interest (''maslaha''), and the objectives (''maqasid'') of Sharia, which played a limited role in classical fiqh, but were now given wider utilitarian applications.{{sfn|Hallaq|2010|pp=182–83}}{{sfn|Schacht|Layish|2000|p=155}}{{sfn|Stewart|2013|p=503}}
* Changes in administrative law that grant the courts discretionary powers to restrict certain practices which are not forbidden by substantive law (e.g., polygamy), in some cases imposing penal sanctions as additional deterrence.{{sfn|Hallaq|2010|pp=182–83}}{{sfn|Schacht|Layish|2000|p=155}}
* Modernist interpretation of Islamic scriptures without adherence to the rules or methodologies of traditional jurisprudence, known as ''neo-ijtihad''.{{sfn|Hallaq|2010|pp=182–83}}{{sfn|Schacht|Layish|2000|p=155}}

[[File:The Late Grand Moufti (1906) - TIMEA.jpg|thumbnail|upright|[[Muhammad Abduh]] exercised a powerful influence on liberal reformist thought.]]

The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar [[Muhammad Abduh|Muhammad ʿAbduh]] (1849–1905). Abduh viewed only Sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence.{{sfn|Mayer|2009}} He championed a creative approach to ijtihad that involved direct interpretation of scriptures as well as the methods of ''takhayyur'' and ''talfiq''.{{sfn|Calder|2009}}{{sfn|Mayer|2009}}

One of the most influential figures in modern legal reforms was the Egyptian legal scholar [[Abd El-Razzak El-Sanhuri]] (1895–1971), who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of [[comparative law]]. He drafted the civil codes of Egypt (1949) and Iraq (1951) based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions.{{sfn|Mayer|2009}}{{sfn|Jones-Pauly|2009}} Sanhuri's Egyptian code incorporated few classical Sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code.{{sfn|Jones-Pauly|2009}} Sanhuri's codes were subsequently adopted in some form by most Arab countries.{{sfn|Mayer|2009}}

Aside from the radical reforms of Islamic family law carried out in Tunisia (1956) and Iran (1967), governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage. Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of [[Islamic inheritance jurisprudence|Quranic shares]].{{sfn|Mayer|2009}}{{sfn|Jones-Pauly|2009}} Some reforms have faced strong conservative opposition. For example, the 1979 reform of Egyptian family law, promulgated by [[Anwar Sadat]] through presidential decree, provoked an outcry and was annulled in 1985 by the supreme court on procedural grounds, to be later replaced by a compromise version.{{sfn|Mayer|2009}} The [[Mudawana|2003 reform of Moroccan family law]], which sought to reconcile universal human rights norms and the country's Islamic heritage, was drafted by a commission that included parliamentarians, religious scholars and feminist activists, and the result has been praised by international rights groups as an example of progressive legislation achieved within an Islamic framework.{{sfn|Rabb|2009d}}{{sfn|Mayer|2009}}

=== Islamization ===
{{Islamism sidebar|Concepts}}
{{Main|Islamization}}

The [[Islamic revival]] of the late 20th century brought the topic of Sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of Sharia.{{sfn|Vikør|2014}}{{sfn|Stewart|2013|pp=503–04}}  A number of factors have contributed to the rise of these movements, classified under the rubric of [[Islamism]] or [[political Islam]], including the failure of authoritarian secular regimes to meet the expectations of their citizens, and a desire of Muslim populations to return to more culturally authentic forms of socio-political organization in the face of a perceived cultural invasion from the West.{{sfn|Stewart|2013|pp=503–04}}{{sfn|Lapidus|2014|p=835}} Shiite leaders such as [[Ayatollah Khomeini]] drew on leftist anticolonialist rhetoric by framing their call for Sharia as a resistance struggle. They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice. In the [[Arab world]] these positions are often encapsulated in the slogan "Islam is the solution" (''al-Islam huwa al-hall'').{{sfn|Stewart|2013|pp=503–04}}

Full implementation of Sharia theoretically refers to expanding its scope to all fields of law and all areas of public life.{{sfn|Vikør|2014}} In practice, Islamization campaigns have focused on a few highly visible issues associated with the conservative Muslim identity, particularly women's [[hijab]] and the ''hudud'' criminal punishments (whipping, stoning and amputation) prescribed for certain crimes.{{sfn|Stewart|2013|pp=503–04}} For many Islamists, ''hudud'' punishments are at the core of the divine Sharia because they are specified by the letter of scripture rather than by human interpreters. Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application.{{sfn|Vikør|2014}} To the broader Muslim public, the calls for Sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia".{{sfn|Lapidus|2014|p=835}}

A number of legal reforms have been made under the influence of these movements, starting from the 1970s when Egypt and Syria amended their constitutions to specify Sharia as the basis of legislation.{{sfn|Stewart|2013|pp=503–04}} The [[Iranian Revolution]] of 1979 represented a watershed for Shiism advocates, demonstrating that it was possible to replace a secular regime with a [[theocracy]].{{sfn|Stewart|2013|pp=503–04}} Several countries, including Iran, Pakistan, Sudan, and some Nigerian states have incorporated hudud rules into their criminal justice systems, which, however, retained fundamental influences of earlier Westernizing reforms.{{sfn|Vikør|2014}}{{sfn|Mayer|2009}} In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate.{{sfn|Vikør|2014}}{{sfn|Otto|2008|p=20}} The supreme courts of Sudan and Iran have rarely approved verdicts of stoning or amputation, and the supreme courts of Pakistan and Nigeria have never done so.{{sfn|Otto|2008|p=20}} Nonetheless, Islamization campaigns have also had repercussions in several other areas of law, leading to curtailment of rights of women and religious minorities, and in the case of Sudan contributing to the breakout of a civil war.{{sfn|Mayer|2009}}

Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based "[[Islamic state]]" should take. This is particularly the case for the theorists of [[Islamic economics]] and [[Islamic finance]], who have advocated both free-market and socialist economic models.{{sfn|Mayer|2009}} The notion of "Sharia-compliant" finance has become an active area of doctrinal innovation and its development has had a major impact on business operations around the world.{{sfn|Stewart|2013|pp=503–04}}