To return now to modern times, Chapter i of this volume instructs us how, beginning about 1850, most legal systems framed by siyasa were rapidly and radically transformed. Ruling regimes, possessed of novel powers under the new centralising dispensation brought about by the advent of modern poli tical, bureaucratic and technological forms and means, used the opportunity to roll back the rights and privileges of the 'ulama'.The realms oflaw assigned to the scholars’ law rapidly shrank, their place taken by state issued compilations deriving from Western laws. At the same time the religious courts lost juris diction. After a short time the shari'a, the 'ulanyx' and the religious courts remained in control only over the laws of the family and religious endowments (waqfs). At first the family law continued to be applied as before, by 'ulamaP in their religious courts, but eventually in most countries even the family law underwent codification by the state and application by law trained judges.4
4 While modern codes reflect the old sharl'a law most densely in the sphere of family and waqf law, borrowings from sharl'a can also be found elsewhere in civil and criminal law.
Only in Turkey did this transformation carry on to the end, to supplanting shari'a altogether and abolishing religious law and courts. But in most coun tries the facade of siyasa shar'iyya legitimacy was never wholly abandoned. As long as the state applied shari 'a law in one sphere at least the family one could argue that the rest was merely a gross expansion, under the stress of extraordinary times, of the ruler’s power to legislate in the interests of the general utility. Even this justification has, except among legal specialists, largely eroded from memory. What is left is a sense that by degrees a part of the old system, itself already a compromise, has now usurped nearly the whole, and that the principle of divine sovereignty over the state and its laws, though never rejected, is vestigial to the point ofirrelevance. A resulting sense of malaise opens a wide door for movements calling for return to shari'a and decrying legal importations as ungodly arrogations, forced by alien powers, of God’s own sovereignty.
In contrast to such states (which we might call 'semi secular’), there are two other types of Islamic states. A second type is states one might label them 'traditionalist’ that still manifest the old siyasa shar'iyya model, never having experienced the transformation of their legal and constitutional systems in the manner of the majority. Examples here are Saudi Arabia; to a lesser extent Afghanistan (pre Marxist and post Taliban); and the small states of the Persian Gulf littoral though these are now transforming rapidly. A third type of state, which we might call 'radical', are those states that, after a revolution or coup, transformed themselves from one of the other two types and asserted themselves as Islamic in a new, more radical sense. The examples here are Iran after its revolution of i979,Sudanforsomeyearsafter its Islamist coup of 1989 and Afghanistan under the Taliban from roughly 1996 to 2001.
Let us explore as case studies two of the states just mentioned Saudi Arabia and Iran each a clear example of its type, employing the five precepts above to analyse and contrast their character. These states apply Islamic law to a greater degree than any other states in the world. In their commonalities and their contrasts, therefore, lie many lessons for the significance of shari 'a as law and constitution in today’s world.
World History
