Can Islamic Law Evolve Without the Interference of the State?
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Transcript: English(auto-generated)
00:07
My research is about how religious scholars in Saudi Arabia understand Islamic law. So Saudi Arabia is a really interesting place to study Islamic law, because it is the only major country in the world in which the legal system is almost entirely dominated by trained Islamic jurists.
00:26
This means that all Saudi jurists are trained in Islamic law, and they apply Islamic jurisprudence in their daily work at court. There is no written law in most areas of Saudi law. And instead, the judges turn to Islamic jurisprudence,
00:43
which is a century-old tradition of interpreting the foundational texts of Islam, and most importantly, the Quran, the Holy Book of Islam, and the teachings of the Prophet Muhammad, the Sunnah. And they understand Islamic law as non-state law.
01:01
There is no connection between the law applied in Saudi Arabia to the state in most questions. Technically speaking, from their perspective, Islamic law has to be applied to all Muslims around the world. And in this particular paper, I asked how legal change in Islamic law can take place under these circumstances.
01:22
Because usually, when we look at law reform in the Middle East, we usually associate it with the state. But what happens if there is no state that has control over the law? Can the law change without state interference? So in order to answer this very broad question, I chose to focus on a case.
01:45
I looked at the case of khula divorce, which is the form of the type of divorce that is initiated by the wife. Unfortunately, Islamic divorce law is a bit complicated since there are numerous forms, types of divorce. But very generally speaking, we can say that the wife has limited access to divorce.
02:04
And the husband can divorce his wife without presenting any reasons. However, the wife can go to court and she can file for divorce. But at least according to mainstream jurisprudence, she can only get the divorce if she presents some reasons for that.
02:20
There has to be something wrong with the husband. For example, if he hits her or if he doesn't pay maintenance and so on. But if she simply does not actually remain with her husband, it will be very difficult for her to get the divorce. This shows that the question of khula divorce is one of the key questions if we look at how Islamic law can be more gender equal.
02:42
In order to answer my question, I combined the study of tax sources with fieldwork in Saudi Arabia. I did a close reading of Saudi court judgments and I combined it with a deeper study of Islamic legal tax. My fieldwork mostly consisted of interviews that I conducted in Saudi Arabia with leading Saudi Islamic scholars, judges, but also with lawyers.
03:09
There are a lot of challenges when you want to do fieldwork in Saudi Arabia. At least at the time of my research, it was impossible, at least for a German citizen, to just travel to Saudi Arabia. So I had to find another way. I had to apply for a research visa.
03:24
To get the research visa took me more than a year. And when I was in Saudi Arabia, I still had to get access to the jurists. So in the past, Saudi jurists were known to be difficult to approach. Not only for foreign researchers like myself, but also for other Saudis.
03:45
They didn't like to talk about their work at court. They didn't like to talk about their ideas. And they didn't publish court judgments. And until the end of the 20th century, they also didn't publish books. But in recent years, the situation has changed completely.
04:01
Now I found that many Saudi jurists are actually very interested in talking to an outsider and they love to change ideas. And they are especially interested in how German law, the law I'm trained in, answers certain questions that they face in their daily work at court. And this new openness enabled me to get a deeper insight into the Saudi legal system.
04:28
What I found was surprising. I could observe that Saudi scholars, without any state interference, came up with a new approach to Islamic divorce law. Before the modern period, very few scholars, often very obscure scholars, allowed women to get a divorce without the consent of their husband.
04:45
The major schools of Islamic law agreed that it would be only recommended for the husband to grant his wife a divorce if she wants to. But it was not mandatory. These divorce laws found their way into the laws of many Arab countries.
05:01
And this didn't change until the year 2000, when the Egyptian government introduced a new law on Khula, which allowed women to file for divorce, to go to court and file for divorce without the consent of their husbands. And this law caused great controversy in Egypt, but also among foreign observers.
05:23
And many argued that the example of the Egyptian law would show that Islamic law can only be reformed with the state. That this would constitute a new age of Islamic jurisprudence, which is dominated by the state. But if we look at Saudi Arabia, this notion is not quite true.
05:41
From the middle of the 20th century onwards, Saudi scholars started to force husbands to grant their wives a divorce if they wanted to. And I found that this view became prevailing by the end of the 20th century. And today there are very few people in the Saudi legal system, in the Saudi legal discourse, that
06:03
doubt that the woman should be granted the divorce if she doesn't want to remain with her husband. As one scholar told me, it would be something very normal and logical in today's world, that the wife shouldn't remain in an unhappy marriage. But I want to emphasize, this does not mean that women in Saudi Arabia have equal rights.
06:23
This is simply not true. But the case of hula divorce shows us that Islamic law can develop without state interference. I think to analyze legal change in Islamic law can help us to better understand social and political developments in Muslim majority countries.
06:46
Calls for reform are easily made, but if one wants to get into a dialogue, one has to understand how reform actually takes place. I think this is especially true for Saudi Arabia. The example of hula can tell us a lot about the political developments inside the kingdom.
07:04
Saudi Arabia is changing fast, and many of the changes have to do with changing interpretations of Islamic law. Like the ability for women to travel without the consent of their guardians, or the lifting of the very controversial ban of female drivers.
07:21
These all have to do with changes in Islamic law. Saudi Arabia is becoming more influential every day in the political landscape of the Middle East. The Saudi Crown Prince Mohammed bin Salman wants to make Saudi Arabia the leader of the Muslim world. And he wants to combine Islam with modernity.
07:44
And I think we should closely follow what this actually means in practice. You might say that Saudi Arabia and Saudi scholars, that this is something very far from Europe or life in Europe. But Saudi scholars are increasingly influencing the thoughts of Muslims in Europe.
08:03
Due to their resources, their money, but also their impressive openness towards new technologies. If you look up a certain question of Islamic jurisprudence on the internet like, is it allowed to eat a certain food? But also more political questions like, is it allowed to join the police force or the military of a non-Muslim country?
08:26
You most likely end up on a Saudi sponsored website. On the one hand, I think that the Saudi example can remind us to also pay attention to the role of jurists in other Muslim majority countries.
08:44
We often look at the civil society when we analyse legal changes, which I think is very important. But we often neglect the role of the jurists. On the other hand, I think that there are many questions that still have to be answered on Saudi law.
09:02
And the important developments about to happen. In early 2021, the Saudi Crown Prince Mohammed bin Salman announced a new law, a new family code, that probably will change the relationship between the scholars and the ruler, the Saudi king.
09:23
But it will also have an impact on how Islamic law is practiced in Saudi courts. Will the jurists remain in control over the law or will the king take over the judiciary? What does this mean for the future of the Saudi kingdom?
09:41
What are the implications for the future of Islamic jurisprudence in the contemporary world? I hope that more scholars focus on Saudi Arabia and help to answer these questions.