What Went Wrong with Islamic Law?

As I have mentioned in some recent posts, I have been reading books on Islamic law as part of the research for a book I am writing on legal systems very different from ours. A number of scholars, most notably Wael Hallaq, argue that the traditional legal system, in which law was for the most part out of the control of the state, worked well for a long time but was destroyed in the course of the 19th and 20th centuries, leaving modern Muslim countries with a system of law made and controlled by the state, even if based in part on the traditional rules. 

Their argument is obviously relevant to current controversies, since if correct it implies that although "fundamentalists"  claim to want to return to Shari'a, what they are actually proposing is something quite different, a legal system that takes some of its rules from traditional Islamic jurisprudence but rejects the central features of the traditional system. But the argument is also relevant to broader and, to me, more interesting questions. One of them is why, if those scholars are correct, a system that functioned, and functioned well, for more than a thousand years eventually vanished. 

Part of Hallaq's answer is that what destroyed the non-state legal system was the rise of the nation state. In the traditional system, legal rules were deduced by schools of legal scholars, based on religious sources—the Quran and the traditions of what Mohammed and his companions did and said. The conclusions of the schools were transmitted to individuals and judges by muftis, private experts in the law whose authority was based on reputation, not government appointment. Only the final stage of the process, the trial where the legal rules generated by the scholars were applied to the facts of an actual controversy, involved an official, the judge (qadi), appointed and paid by the state.

In Hallaq's view, rulers, frequently Turkish princes ruling non-Turkish populations, were mostly willing to give the legal experts a free hand in interpreting law in exchange for support of the rulers' legitimacy. And the existence of multiple schools of law, four of which have survived in Sunni Islam, meant that individuals had a substantial degree of choice over the legal rules that applied to them. Two people who wanted to enter a contract permitted according to one school, forbidden according to another, could  contract in a court of the former school and have any subsequent disagreements adjudicated under the rules of that school. 

Details varied from time to time and place to place—in some times and places one school was to some degree dominant—but a large city was likely to have courts for all four schools, plus additional courts for disputes between Christians, between Jews, or between Shia Muslims, with legal rules to determine what court ruled in disputes between adherents of different schools or different religions.

The part of Hallaq's account that I find least convincing is his attempt to blame the eventual changes on western influence, direct in the case of Islamic populations under western rule (India, Indonesia, Algeria), indirect elsewhere. The reason I find it unconvincing is the case of the Ottoman Empire.

Hallaq argues that, although the Ottoman Empire was never a colony, it was under severe western pressure during the 19th century, pressure responsible for a series of changes that converted the traditional system into one in which the state controlled both the content of the law and the training, employment, and promotion of legal scholars. The problem with that story is that, so far as I can tell, the relevant changes go back much farther than the nineteenth century, back to a time when the Ottoman Empire was a successful, expanding state. In particular:

The Ottomans favored one school of law, the Hanafi. In the core area of the Empire, law was Hanafi law. In areas annexed by the Ottomans where other schools had been important, their courts survived, but their judges were deputy judges, and the Hanafi chief judge had to approve their verdicts. Over time, more and more legal scholars shifted to the Hanafi school, since that was where the money and power lay. Further, while the traditional system allowed a judge of a school some freedom in choosing among alternative legal interpretations within that school, the Ottoman Sultan had, and sometimes used, the power to order judges to follow a particular Hanafi rule, not necessarily the one considered best supported by Hanafi scholars.

The Sultan also had the power to make legal rules called kanun, creating a legal system running in parallel with the traditional fiqh, the interpretation by the schools of the legal implications of Shari'a, divine law. Kanun could be inconsistent with fiqh and overrule it. Thus, for example, all four schools held that loans at interest were forbidden. Kanun specified maximum legal interest rates.

In the traditional system, scholars were trained in and employed by madrassas, legal schools supported by endowments, usually provided by wealthy patrons in the distant past. The Ottomans took control over that system, putting it under the authority of a state appointed Chief Mufti.

All of this happened long before the 19th century, so it is hard to see how it can be blamed on western influence. Further, the changes in the Ottoman Empire parallel the rise of absolute monarchy in the west. Compare the Sultan's seizure of control over the system of religious law, complete with the Sultan's claim to the Caliphate, with Henry VIII's seizure of the English church, putting himself in place of the Pope at its head. Compare the Ottoman annexation of waqf, endowments used to, among other things, fund religious education, with Henry's annexation of the monasteries.

My conclusion is that Hallaq et. al. may well be correct in arguing that the rise of the nation state destroyed the traditional Islamic legal system. They may be correct that that traditional system was, on the whole, a pretty good one, as legal systems go, although I suspect they exaggerate how good it was. But the ultimate cause was some exogenous factor operating on both the west and the Islamic world, with similar effects on both.