In these troubled times, Islamic law does not inspire opinions so much as stances. Many devout Muslims idealise its theoretical perfection, while downplaying or ignoring injustices perpetrated in its name. Critics equate a jurisprudence built up over 1,400 years with its most misogynistic and brutal modern practitioners. Each group could usefully learn from the other. The mundane manifestations of God's law owe plenty to politics and historical accident – but its durability alone is evidence of qualities more positive than compulsion.
As Mathias Rohe illustrates in this magisterial survey, Islamic law has not historically been either regressive or especially rigid. Literalism, so often associated with simplistic religious interpretation, was not even an option for early Muslim jurists, because orthodoxy has always held that God's message to the Prophet Muhammad evolved gradually over two decades. Contextualisation of the Qur'an's verses, and of thousands of associated oral traditions, was therefore essential. The possibility of over-zealous enforcement was also lessened by techniques that would be familiar to any modern lawyer. Harsh rules were mitigated by invoking God's benign purposes, leading to the development of presumptions as merciful as they might be implausible – memorably, the finding of scholars that childbirth could take place several years after conception, which has twice so far this century saved pregnant Nigerian divorcees from being stoned for adultery.
All the malleability has a flipside, however. A flexible law can also be an unpredictable and uncontrollable one and, as later sections of Rohe's account make plain, rules attributed to God are proving very susceptible to abuse in parts of the modern Muslim world. Self-proclaimed defenders of sharia often cherry-pick those interpretations that legitimise gender inequality, violent punishments and systematic religious discrimination, and the risks of arbitrary injustice are increased yet further by the dearth of developed checks and balances in classical Islamic jurisprudence. In regions that typically lack established procedural limits on governmental power anyway, radicals have consequently found an audience for their visions – as inventive as they are supposedly traditional – of a utopian Islamic state.
One potential way forward – a root-and-branch overhaul – is unrealistic. Even the word ‘reform’ tends to raise hackles among traditionalists when applied to laws attributed to God, and, as Rohe astutely observes, most modernisers therefore imagine ‘renewal’, ‘revival’ or ‘correction’ instead. This may be pious, even humble, but it often speaks of caution and cynicism as well. Some radicals and conservatives resist proposed improvements to the application of Islamic law not with substantive counter-arguments but with complaints of neo-imperialist scheming or apostasy. Secularism is meanwhile liable to be caricatured: portrayed not as an attempt to hold the ring between competitive ideas and faiths but as an amoral state of godlessness.
It is to Rohe's credit that he navigates this variegated and thorny terrain with skill. Combining an academic background, fieldwork and professional legal experience (the author used to be a judge in his native Germany), Islamic Law in Past and Present addresses an eclectic range of contemporary viewpoints and might thereby usefully complement more established texts, such as those by Wael Hallaq and Mohammad Kamali. Though it was evidently researched and written in large part before the so-called Arab Spring, the book nods at some more recent developments and remains timely. The tone is also refreshing. Rohe's coverage is dense, perhaps inevitably, but he does not make futile attempts to sound neutral: he aims instead at impartiality, and expresses opinions which, while subtle, are unequivocal.
As Rohe shows, contemporary Islamic law still has not ossified into a stultified set of rules. Insular legal interpretations prevail – in no small part, he points out, because conservative traditionalists were disproportionately favoured by British colonial administrators – but they have been coming under serious pressure from several directions in recent decade. And that process, while volatile, is not predictable. With this in mind, Rohe identifies several aspects of Islamic jurisprudence that could work for the benefit of disadvantaged groups. In relation to matrimonial law, for example – a contentious topic, originally moulded by the patriarchal assumptions of militarised, pre-modern societies – he points to several ways in which Muslim activists and societies are seeking to challenge rules about divorce, maintenance and child custody. They are engaging in purposive re-interpretation: for example, emphasising the evidential requirements of classical Islamic jurisprudence, and enacting laws which require Muslim husbands to comply with relatively onerous registration procedures if they want to exercise their traditional right to pronounce their wives divorced.
The final section will be of particular interest to many readers. Rohe looks at three countries where Muslims are in the minority – India, Canada and Germany – in order to consider what place sharia ought to have in a secular state. As he appreciates well, the answer is not straightforward, because the sharia is a code of behaviour equivalent to the Jewish halakha, incorporating guidance on subjects ranging from worship to diet and personal hygiene. No matter how controversial its rules about criminal justice might be, a respect for these social norms has long been central to the identity of any Muslim. But, though Rohe accepts that certain concessions to religious sentiment might properly foster community cohesion (he is critical of a 2012 decision of the Cologne Court of Appeal that briefly criminalised male circumcision, for example), he is very wary of giving up too much ground. In the West at least, Islamic dispute resolution procedures should not be given ‘even a semblance of government approval’.
Insofar as this is meant to be relevant to the United Kingdom – and Rohe's frequent use of British examples suggests that it is – this opinion is questionable. The Muslim organisations in this country that most often assert a jurisdiction to determine questions about sharia law are voluntary mediation and counselling bodies, and the large majority of people who use their services are unhappy wives who want (and usually obtain) an escape from oppressive marriages that is legitimate in their eyes, and those of their co-religionists. But Rohe's analysis, here and throughout, is measured – in keeping with a hope he expresses to steer clear of both ‘trivialisation and demonisation’ – and should therefore only be welcomed. As his book thoughtfully demonstrates, the most influential scholars of Islamic law have not spent the last fourteen centuries ignoring difficult arguments; their work has been defined by it.
