Islamization of Laws: Various Determinants, Modern State and Codification

Abstract

Islamization is vast terminology to understand and comprehend in a nut shell. Before implementing the idea of Islamization it is mandatory to define the entire concept. While applying this legal norm and analyzing its prospects, consequences and ground realities, an absolute idea from the early Fiqh i concept would be helpful. It should be defined whether “Islamization “ means to codify the Sharia rules into state legislation or a mere tailoring of any existing law or statute will be included in Islamization. There arises another question that if a law has been legislated on some defined political and legal agenda, whether mere insertion of some clauses will be adequate to serve the purpose. For instance “Sharia Guarantee Clauses” in the constitution can be considered exhaustive in terms of Islamization of laws or not. This research aims to explore the historical evidences from Islamic legal history where Islamization of state law, whether borrowed or originally legislated, has taken place. In this regard, we find some fiqh manuals having resemblance with the modern codes to guide the judicial officers and court proceedings. There are several Fatawa and codes prepared for guiding the judges in Ottoman and Mughal Empire. While consulting these manuals to devise a new Islamized code, the methodology and principles followed to design and prepare “Majallah Al Ahkam Al Adliyah and others will be studied. This study intends to inquire another valid and relevant question that what will be the qualities of the law makers for the said task? If we say that a code will be a mere compilation of opinions of early jurists, it won’t be adequate and efficient with modern day needs of the subjects of law. This study aims to focus on the issue if some substantive and procedural codes are undergoing the Islamization process, then how the Islamization can be termed appropriate without a set criteria or standard to check? In light of modern day state system how a state can be given the task to Islamize a law while state cannot be given the status of a Shar’? This research will also try to find out Who (the Islamization institute or Legislation) will be given the preference if there is a conflict between legislature and the said institution? In this context the status of legislature will also be discussed. Another issue to be discussed is the effect of Islamization of different Schools of thought? Whether the whole legal system be brought under one methodology or the current state of merger between different schools on different issues will be applied?