An Introduction to Islamic Law (43 page)

The foregoing characterization of Islamic law, partial as it may be, bespeaks a complex reality that has largely disappeared. Over the past two centuries or so, the Shari
a has been transformed from a worldly institution and culture to a
textuality, namely, a body of texts that is entirely stripped of its social and sociological context – its ecological environment, so to speak. Furthermore, this textuality has been engaged in a kind of politics that its pre-modern counterpart did not know. Which is to say that the surviving residue of the Shari
a, its entexted form, functions in such uniquely modern ways that this very residue is rendered foreign, in substance and function, to any of its historical antecedents
.

This profound transformation was the outcome of the confrontation between the Shari
a and the most significant and weighty institution that emerged out of, and at once defined, modernity, i.e.,
the state. Conceptually, institutionally and historically, the state came into sustained conflict with the Shari
a, initially coexisting with it in a condition of contradiction, but soon succeeding in displacing it once and for all. Among the specific effects of this contest for mastery over the law was the desiccation and final dismantling of the Shari
a’s institutional structures, including its financially independent colleges and universities, and the legal environment and culture that afforded Muslim legists the opportunity to operate and flourish as a “professional” group. This dismantling (with the benefit of hindsight, inevitable and expected) finally led to the extinction of this group as a species, to the emergence of a new conception of law, and, in short, to the rise of new legal and cultural systems. Shari
a’s subject matter became no more than positive law, emanating from the state’s will to power. The transformation was embodied in, and represented by, a complex process that operated at nearly every level in the uneven relationship between colonialist modern Europe – the creator and exporter of the modern state – and Muslim (and other) societies around the world. The forces behind the transformation were, among many others, centralization, codification (in the widest sense of the word),
bureaucratization, homogenization and – to ensure totalistic compliance – ubiquitous militarization, all of which are in fact the props of the modern state project.

As we saw, it was in British India that the “entexting” of Islamic law first occurred – where, that is, it was
fixed
into
texts as a conceptual act of codification. British India, subjected to direct forms of colonialism, displayed the processes and effects of crude and naked power more clearly than, say, the Ottoman Empire, although the latter was no less affected by the domination of modernity, in all its aspects, than any other directly colonized subject. The Indian experiment (and no less the Ottoman) served an immediate function in the colonialist articulation of Islam, in
knowing
and managing it. What amounted to a large-scale operation by which complex Islamic legal and social practices were reduced to fixed texts created a new way of understanding India and the rest of the Muslim world. Integral to this understanding was the pervasive idea that to study Islam and its history was to study texts, and not its societies, social practices or social orders. Entexting the Shari
a therefore had the effect of severing nearly all its ties with the anthropological and sociological legal past, much like the consignment of events to the “dark ages” or medieval period in the European historical imagination.

Once the anthropological past was trampled under by an entexted Shari
a, the very meaning of Islamic law was severely curtailed, if not transformed, having been emptied of the content and expertise necessary for a genuine evaluation of Shari
a-on-the-ground, and of its operation within an “ecological” system of checks and balances. It was also, as a consequence, stripped of much of its previous relevance. The new nationalist elites, endowed with the legacy of colonial state structures, aggressively pursued this severance of Shari
a from its anthropological past. Entexting served the nation-state’s project of social engineering very well.
³

I have already noted that the entexted Shari
a was also engaged in a new world of politics, a world that its pre-modern counterpart did not know. The act of severance, in other words, was almost perfectly correlated with the process by which the surviving residue, the entexted body of Shari
a, was transplanted into a new environment. The transformation was then two-pronged, engendering juristic rigidity through entexting,
and
politicization through transplantation
. Whereas pre-modern Islamic law operated largely outside dynastic rule, the entexted and transplanted Shari
a had now come to be lodged
within
the structures of the state. To say that this transformation subjected the Shari
a to a profound process of politicization is merely to state the obvious. The Shari
a, however conceived by its modern followers, stands today as the centerpiece of political contention.