viewcontentil.pdf

(2056 KB) Pobierz
DONALD L. HOROWITZ
The Qur' an and the Common Law: Islamic Law
Reform and the Theory of Legal Change
Editor's Note: In Part One of this article, published in the last
issue, Professor Horowitz noted the rapid legal change taking place in
many parts of the world. Widespread Isl,amic law reform forms a
prominent part of the process of change. Professor Horowitz pointed
out that there is an inadequate supply of good theory to -explain the
sources and the directions of legal change, particularly theory that is
genuinely comparative, and he then provided a critical survey of the
main theoretical approaches that might be brought to bear on the
problem of change. Thereafter, Professor Horowitz laid out the con-
tours of the extensive statutory changes that have taken place in Ma-
laysian Islamic law, explaining that the Malaysian drafters had
borrowed freely, both from other Islamic systems and from British-
derived secular law, which has strong roots in Malaysia.
Copyright
©
HI94
by Donald L. Horowitz.
DONALD L. HonoWITZ is Charles S. Murphy Professor of Law, Duke University. I am
grateful to the Bost Research Fund at Duke Law School for making possible the re-
search on which this paper is based. Much of the research for this project was con-
ducted while I visited the Law Faculty of Universiti Kebangsaan Malaysia during
1991, 1992, and 1993. I am deeply indebted to the faculty and
to
its Dean, Dato'
Shaharuddin Mohd. Saaid, for their hospitality and intellectual encouragement. I
benefited also from interviews with a good many members of the Shariah bar and
bench and from lengthy conversations with prominent lawyers and Islamicists at
UKM and elsewhere, most notably Tan Sri Dato'
~ad
Ibrahim, Dato' Abdul Hamid
Othman, MoM. Ali Baharum, Raymond L.M. Lee, Mahfodz Mohamed, Abdul Majid
Nabi Baksh, Abdul Monir Yaacob, Samsuddin Subor, Sharifah Zaleha Syed Hassan,
and Zainah Anwar. lowe a very great debt of gratitude to Suzanna Mohd. Isa of the
UKM Law Faculty for providing me with an enormous volume of useful information
and to Maimunah Abdul Kadir for putting her library resources and her prodigious
energy at my disposal. My research assistants at UKM, Mohd. Faris Othman and
Norelin Ahmad YusofT, provided invaluable help, as did the ever-reliable Azizah
Ishak and Hishamuddin Abu Sein, among others in the Law Faculty office. At Duke,
Susan Redick Gruber proved a thoroughly devoted and resourceful research assistant.
Important contributions were also made by Natalie Kay Sidles and Michele Vroman.
Portions ofthi,l paper were presented at workshops at N.Y.U. Law School, Yale Law
School, and Duke Law School. Helpful comments were received from Mohammed Al-
sheaibi, Lea Brilmayer, Mark Cammack, R.H. Helmholz, Lewis Kornhauser, Made-
line Morris, Shaharuddin Mohd. Saaid, and Laura Underkuffier. Despite all of this
help, responsibility for every statement of law and fact, and every conclusion in this
work, is entirely mine. I emphasize this, because I know that not all of my judgments
would be sharHd by those who were kind enough to help me.
543
544
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 42
In Part Two, Professor Horowitz shows the powerful influence of
common law methods on legal reasoning, on the reshaping of old Is-
lamic law doctrines and the creation of wholly new obligations, and
on the legal process in general. He then reevaluates the predominant
approaches to legal change and makes the case for legal accultura-
tion-a syncretic process by which the norms of one system infuse
those of another, without necessarily
.
undermining the latter's
authenticity.
CONTENTS
PART ONE
I. Islamization: The Malaysian Experiment. . . . . . . . . . . . . ..
II. Visible and Invisible Hands: On the Theory of Legal
Change .................................................
A. Evolutionist Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . ..
B. Utilitarian Approaches .............................
C. Social Change Approaches..........................
D. Intentionalist Approaches ..........................
E. Competing Approaches and the Malaysian Case:
The Logic of a Quest.. .. .. .. .. .. .. .. .. .. .. .. .. .. ....
III. The Malaysian Changes.. .. .. .. .. .. .. . .. .. .. .. .. .. .. ...
A. The Inherited Duality ..............................
B.
Realigning the Inherited Court System .............
C. The New Statutes: Hybridization, Borrowing, and
Convergence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
1.
Procedure and Evidence. . . . . . . . . . . . . . . . . . . . . . . ..
2. Family Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .
(a) Marriage and Divorce.. .. .. .. .. .. .. .. .. .. ...
(b) Polygamy...................................
3. Islamic Business Rules and Charitable Taxation.
D. The Sources and Results of Statutory Innovation...
PART
236
238
244
247
249
250
252
254
254
258
267
270
273
273
284
290
292
545
545
.
556
557
563
566
567
567
Two
IV. Judicial Doctrine: A Common Law of Shariah . . . . . . . . ..
A. Divorce and Polygamy: New Standards and
Interstate Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
B.
Marital Property and Consolatory Gifts: Changing
Law, Changing System .............................
1.
Marital Property: Merging and Emerging Law..
2. Consolatory Gifts: Clarified Doctrine, Enhanced
Enforcement ....................................
3. The Two Payments and the Sources of Change ..
V. Legal Acculturation and the Quest for Authenticity. . . ..
A. Approaches to Legal Change and the Mirror of
Authenticity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
1994]
ISLAMIC LAW REFORM
545
B.
Borrowing and Legal Dualism .,....................
570
C. Driving in Two Lanes: Legal Syncretism and
Authenticity........................................
578
PART
Two
OF
SHARIAH
IV.
,JUDICIAL DOCTRINE:
A
COMMON
LAw
Proponents of Islamic reform in Malaysia have not been content
to move the law along by means of legislative enactment alone: case
law has also been a vehicle. Here the most visible evidence is heavily
in the appeal boards and committees of jurisdictions following the
Federal Territory model, two of them
in
particular. The decisions of
these appellate bodies are replete with secular methods of statutory
interpretation, applied even to sacred sources, with common law in-
crementalism, with holdings in the alternative, with distinctions
among prior cases and disavowals of earlier dicta, and with avoidance
of ultimate questions. The decisions often articulate new standards,
occasionally clashing with those of other jurisdictions. Like the stat-
utes, the Islamic case law evidences convergence with the secular
law.
A.
Divorce and Polygamy: New Standards and Conflicts
Consider first a talak case, decided by the Selangor Appeal Com-
mittee in
1991.
As
we have seen in Part One,328 the statute prohibits
(indeed, it penalizes329) utterance of a talak out of court. Traditional
Shafi'i doctrine, however, finds extrajudicial talak to be completely
normal and effective for divorce. 33o In this case,
Zainab binti
Mahmood and Abd. Latif bin JUSOh,331
there were no witnesses to
the extrajudicial talak, except the wife, who denied it had been ut-
tered. Under customary Shafi'i doctrine, neither witnesses nor the
wife's presence would be required. Consequently, the kadi held the
repudiation to be effective. The appeal committee reversed, holding
that the statute provides the exclusive way to register a talak divorce
when the wife does not agree. 332 That is, application must be made
to the court, and the conciliation process must be followed. Moreover,
said the Selangor Committee, the Qur'an
~equires
that a talak be wit-
nessed by two adults of good character, failing which it is invalid. 333
The witnessing, the committee implied, must be done in the kadi's
court. Talak remains the husband's right in Islam, but it may not be
328.
329.
330.
331.
332.
333.
Supra at 274.
Selan~:or
Islamic Family Law Enactment 1984, No.4 of 1984,
§
124.
Nawawi, supra n. 193, at 327-44.
Civil Appeal Case No. 16 of 1990 (Selangor App. Comm. 1991).
Id., slip op. at 4.
Id. at 6-7.
546
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
42
uttered arbitrarily. Accordingly, concluded the committee, there is
no conflict between the statutory provision and the
Qur'an~c
ones. 334
Of course, it may be asked how talak can be 'the husband's right
if
the statutory ground in which the right is now subsumed requires a
judicial finding of irretrievable breakdown. 335 And if talak may not
be uttered at the pleasure of the husband, why do the Shafi'i sources
recite innumerable ways to utter a repudiation, including: "Go back
to your family,"
"Go
away," "Leave me alone," "Bid me good-bye," and
the singularly expressive "Your rope is on your withers"?336 To be
sure, the statute is clear enough in failing to countenance extrajudi-
cial repudiation or, for that matter, repudiation even in court without
a finding of breakdown. But that merely makes the statute more
problematic in Islamic terms, and it cannot be doubted that a good
many kadis were....,-'-and are---registering divorces based on talaks ut-
tered long before the parties got to court. The
Zainab
decision was
not popular among
ulama.
There is a clear doctrinal trend here, but
it is not uncontested ..
If
Zainab
was unpopular,
Aishah bte. Abdul Rauf v. Wan Mohd.
Yusof bin Wan Othman,337
decided by the same appeal committee a
year earlier, produced a storm of protest in the Malay press. 33S Wan
Yusofwas a well-off businessman who applied for permission to take
as his second wife a Malay film star, Noor Kumalasari. Aishah, his
first wife, refused to concur and contested his application in the
kadi's court outside Kuala Lumpur. Noting Wan Yusof's financial
ability and finding him able to satisfy the emotional needs of both
women, the kadi granted permission. Aishah appealed, and the com-
mittee reversed.
On the question of financial ability, the appeal committeeac-
cepted the kadi's finding but cautioned ominously that
in
future ap-
plicants for polygamous marriages will need to provide documentary
evidence, including income tax records. 339 The committee then went
on to hold that Wan Yusof had failed to prove that the second mar-
334. Id. at 9.
335. Selangor Islamic Family Law Enactment 1984,.No. 4 of 1984,
§§
47-48.
336. Nawawi, supra n. 193, at 327·44 ..
337. [1990] 3 M.L.J.
Ix
(Selangor App. Comm. 1990).
338. For small portions of the debate, see A. Nazri Abdullah, "Undang-undang
Kekeluargaan Islam: Siapa yang Keliru? [Islamic Family Law: Who is Confused?],"
Berita Minggu,
Aug. 5, 1990, at 10; Khalid Mohd., "Sejauh manakah undang2 boleh
halang poligami [How Far Can the Laws Change Polygamy?],"
Mingguan Malaysia,
Aug. 5, 1990, at 9; "Polygamy not a right enshrined in the Quran,"
New Straits Times,
Aug. 20, 1990, at F·17. See also "Noorkumalasari Appeals to Trader's Wife,"
Star,
Aug. 4, 1990, at 3.
339. [1990] 3 M.L.J. at lxii. The reliance on documents for such purposes is not
customary in Islamic law. See generally J.A.
Wakin,The Function of Documents in
Islamic Law
(1972); Messick, "The Mufti, the Text and the World: LegalInterpreta·
tion in Yemen," 21
Man
(n.s.) 102, 114 (1986).
1994]
ISLAMIC LAW REFORM
547
riage was "ju.st and necessary," as the statute requires. 340 His stated
inability to control his love for Noor Kumalasari would not make a
second marriage just. And, added the committee, the bare statement
by a husband that he intends to treat his first wife and existing chil-
dren fairly does not make it so. At the very least, witnesses must
testify that the husband is a God-fearing and observant Muslim.341,
The committee turned finally, but briefly, to the religious validity
of the four polygamy conditions of the Selangor statute, which, as we
have just seen, go beyond conventIonal Shafi'i doctrine. The commit-
tee held that they are not in conflict with the Qur'an. The Qur'an
appears to permit up to four wives unless the husband fears that he
will "not be able to deal justly with them . . . ."342 The statute does
not aim
"to
abolish polygamy," said the committee, "but it merely pro-
vides constructive requirements in the hope that justice in the Mus-
lim family may be better achieved. "343
Perhaps so, but, with an open-ended burden of proof about future
conduct placed on the husband, it is difficult to imagine
tha~
many
applications for polygamous marriages will be approved if the first
wife objects.
It
is said that the Sultan of Selangor was concerned
about the legality of his own polygamous marriage after this decision,
and the four remaining conditions came under serious scrutiny.344
None of this was of more than passing concern to Wan Yusof. He
and Noor Kumalasari traveled to the east coast state of Trengganu,
there to be married by a kadi who did not inquire or did not care what
the Selangor Appeal Committee had done. 345
'
At the time of the marriage in Trengganu, that state's Family
Law Enactment simply
r~quired,
in general terms, the permissiori of
a Shariah court judge for a polygamous marriage. 346 The Selangor
standards, however, purport to apply to prospective polygamous hus-
bands who are resident in Selangor, even if they are to be married
outside Selangor. 347 The Trengganu act provides that marriages are
generally to be solemnized in the
mukim
or area in which the bride
resides, unless the kadi or Registrar of Marriages allows solemniza-
340. Selangor Islamic Family Law Enactment 1984, No.4 of 1984,
§
23(3).
341. [1990] 3 M.L.J. at
lxiii.
342. Sura An-Nissa', quoted in id.
343. Id.
344. I am drawing here on an interview with a prominent Islamic jurist, Kuala
Lumpur, Apr. 27, 1992. The appeal committee was called in by the Sultan and asked
to explain the decision; and the state mufti was asked to examine the legality of the
four statutory conditions for polygamy. Id.
345.
It
is not uncommon for husbands refused permission to take a second wife to
leave the jurisdiction and marry her in another state or in southern Thailand. Raja
Rohana, supra n. 161, at 65.
346. Terengganu Administration ofIslamic Family Law Enactment 1985, No. 12 of
1985,
§
21.
347. Selangor Islamic Family Law Enactment 1984, No.4 of 1984,
§
23(2).

Plik z chomika:

Inne pliki z tego folderu:

Inne foldery tego chomika:

Zgłoś jeśli naruszono regulamin