distinguish between rigid and flexible sources in Islam ?
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The last decades have witnessed a sustained critique of the mainstream Orientalist notion that classical Islamic family law was rigid, inflexible, and homogeneous. Many historians have used innovative methods to demonstrate that jurists and judges in precodification times enjoyed the intellectual space to translate the principles of theand Sunna into socially workable rules. Yet, perhaps unwittingly, these authors have presented classical Islamic family law as flexible by contrasting it with postcodification legal practice. The latter is represented as characterized by rigidity and textuality due to, among other things, the prominent role of the nation-state in many Muslim countries. On the basis of extensive fieldwork in 2002–2003, this article juxtaposes the claim of inflexibility with ethnographic material in order to properly conceptualize the present-day practice of Islamic family law. I argue that the role of the state should not be overemphasized at the expense of the analytical significance of actors’ agency, including that of the judges, in effecting change. The analysis shows that, despite codification, Islamic family law in many Muslim countries is still characterized by flexible, heterogeneous, and context-bound implementation.
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Abstract
The last decades have witnessed a sustained critique of the mainstream Orientalist notion that classical Islamic family law was rigid, inflexible, and homogeneous. Many historians have used innovative methods to demonstrate that jurists and judges in precodification times enjoyed the intellectual space to translate the principles of theand Sunna into socially workable rules. Yet, perhaps unwittingly, these authors have presented classical Islamic family law as flexible by contrasting it with postcodification legal practice. The latter is represented as characterized by rigidity and textuality due to, among other things, the prominent role of the nation-state in many Muslim countries. On the basis of extensive fieldwork in 2002–2003, this article juxtaposes the claim of inflexibility with ethnographic material in order to properly conceptualize the present-day practice of Islamic family law. I argue that the role of the state should not be overemphasized at the expense of the analytical significance of actors’ agency, including that of the judges, in effecting change. The analysis shows that, despite codification, Islamic family law in many Muslim countries is still characterized by flexible, heterogeneous, and context-bound implementation.... As a result, the independence becomes blurred, and at the same time, the group's character still persists in each of them. Conflict resolution, which in the past can be resolved by customary agreements or local mediation based on consensus, equality, and mutual respect, becomes ineffectively abandoned due to the rigidity of existing legal regulations (Shehada 2009). In this context, the role of civil society is needed to participate in advocating for the interests of the lower classes, restoring harmonious relations and advocating for various interests of the community in the modern state system (Paffenholz 2010). ...