From the Conclusion:
The jurists’ quest for the normative basis of shari’a very significantly demonstrates that in order to translate shari’a into a working law, even in the form of fiqh, it has to dig deep in social norms for its normative bases. Legal norms cannot be realized without their foundations in the social norms. The social norms, however, are never static. As a dynamic legal system, Islamic fiqh has had to continuously interact with the changing social norms. The semblance of continuity is provided by legal norms, which relate these changes to the texts of law. The task appears more formidable at present because the social construction of shari’a is now more complex due to the nature of modern social and political institutions, which are quite different from those that formed the current fiqh. It must be clear that the legal development of shari’a today demands a conscious distinction between legal and religious objectives. If this distinction is not made clear, shari’a may be reduced to a religious ritual or an ethnic cult. It loses its relevance as a source of law. On the other hand, when law is detached from its cultural setting, it gives rise to social contradictions that destroy the authority and effectiveness of a legal system. In order to gain greater understanding of the working of law in Islam, a twofold effort is necessary.
On the one hand, we must examine how Muslim jurists tried to develop a balance between legal and social norms, and how they rooted the normative basis of shari’a in social practices. On the other hand, we need to recognize the significance of the public space for the social construction of Islamic law.
The phenomenon of globalization has also introduced the idea of public sphere (Eickelman and Anderson 1999). The construction of shari’a in the form of fiqh has been the sole responsibility of the fuqaha for several centuries now. That this sense of fiqh is the exclusive domain of the ‘ulama is also clear from the definition of ijma’, consensus, which is described as agreement of the ‘ulama on a legal matter. In the early period, participation in ijma’ was quite broad in scope: it included the active participation of various other segments of society. The early terms for this authority, e.g. ahl al-hall wa’l-‘aqd, the people who could tie and untie, ahl al-shawka, the influential people, ahl al-ra’y, the people of opinion, also reflect the breadth of this scope. Gradually, the authority of consensus was restricted to the fuqaha. Today, alongside the ‘ulama, laymen and women are voicing their opinions on shari’a matters.
Interestingly, globalization was initially misunderstood as a movement for universalization, which went well with the movement for the restoration of shari’a. This, in turn, was due to the shari’a being considered universal. Yet globalization faced cultural resistance. Muslims justified this resistance on religious grounds. On the global level, the argument was in favour of regional values, which in fact stood for the cultural norms.
From this perspective, we may note three major developments in the ongoing debate on shari’a. The first development concerns the role of ‘ulama, or jurists. The use of modern technology, medicine, means of information, and economic institutions in daily practice has exposed Muslim jurists’ incompetence in dealing with these issues convincingly. Traditionally, a comprehensive training in jurisprudence and other sciences would have equipped them to handle such questions. Since Muslim religious institutions refused to update their curricula, the gap between the traditional and modern sciences has widened. Consequently, the ‘ulama have lost their intellectual leadership.
Muhammad Iqbal, a South Asian Muslim intellectual, admired Turkey’s adoption of the republican constitution. He called it an Islamic ijtihad that vested the authority in the people rather than in the person of the caliph (Iqbal 1986, 124). He saw in it a revival of the true Islam that had been eclipsed by Arab imperialism (ibid., 126). As to the role of the ‘ulama, Iqbal held that they must participate in the legislative activities as duly elected members (Masud 1995, 144–146), not as authorities in themselves. The modern debate has successfully shifted thefocus from the authority of the jurists to that of the text of the Qur’an.
The second development concerns the issue of equality, with a focus on gender equality. The debate has succeeded in placing the traditionalists and the Islamists in a defensive position. The third development has to do with the question of human rights. It also includes the notions of pluralism and globalism. The debate has particularly vitalized the relevance of the normative basis for the effectiveness of human rights laws. Different communities have different perceptions of norms and cultural preferences. Debate has emphasized the need of a pluralist rather than a unified approach to the definition of human rights.