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Muslim Laws, Politics and Society in Modern Nation States: Dynamic Legal Pluralisms in England, Turkey and Pakistan IHSAN YILMAZ SOAS, University of London, UK ASHGATE Ihsan Yilmaz 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the publisher. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hants GU11 3HR England Ashgate Publishing Company 131 Main Street Burlington, VT 05401-5600 USA Ashgate website: http://www.ashgate.com Law, Politics and Society in the Post-Modern Condition 1 Chapter 1 Law, Politics and Society in the Post- Modern Condition One of the most crucial legal and sociological issues of the modern age is how far and with what consequences law could be used in the process of the deliberate forming of society. In this regard, the modern nation-state law has often been employed as a modernizing agent or as an instrument of modernization. The law is expected to act as an agent of change and development. Almost all modern nation- states have steadily tried to use law as a tool of social engineering and as a mode of organizing beliefs and values to shape and to uniformize their societies in the modern era. Post-modernity provides a philosophical frame or paradigm in which modernity is critically examined, using primarily the techniques of „deconstruction‟ developed by hermeneutics and social linguistics.1 Post-modernity can be seen as a multifocal symbol, which in its most generalized usage challenges the assumption of universality inherent in the legitimating discourses of modernity such as secularism, rationality, social stratification, urbanization and industrialization. There are various façades of post-modernity: Indeterminacy, fragmentation, irony, the fictionalization of identity, carnivalization, decanonization and hybridization (Hassan 1985: 119). For Lyotard (1984: xxv), post-modern society is characterized by a disbelief in the availability of a privileged metanarrative or the ultimate discourse of the universal „truth‟. Instead, legitimization becomes plural, local and inherent within a specific context. Post-modern theory distrusts all attempts to create general, large- scale totalizing theories in order to explain social phenomena (Douzinas et al 1991: x). In the post-modern age, unitary theories of progress are increasingly being questioned. Objective „truth‟ has been replaced by the plurality of viewpoints. Relative truths are on the stage. This undermines the existence of social life as a contained and integrated totality, a unified system of meaning. As a result of this mentality, the particular, the multiple and the heterogeneous are acknowledged and legitimized. In the post-modern condition, what one sees is a proliferation of social codes relating to ethnicity, gender, culture and religion. As a result, a field of stylistic and discursive heterogeneity has emerged. This age is characterized by diversity and cultural relativity. 1 See in detail Connor (1991); Hollinger (1994); Tester (1993); Tourraine (1992); Rosenau (1992); Foucault (1986; 1987; 1988; 1992; 1994). Law, Politics and Society in the Post-Modern Condition 2 Post-modern scholars have argued that knowledge claims can only ever be partial and local, as post-modernity implies a mistrust of the metanarratives of modernity (Lyotard 1984: 82). It is accepted that differences do not go away. Thus, post-modernism represents a radical potential in the attempt to formulate a defence of difference, while toleration gains importance (Rosenau 1992: 98; Bauman 1992: 2-23, 30-36). Post-moderns advocate that „every culture... is equivalent to every other one‟ (Wagner 1995: 55). Legal modernity is challenged in this age as well. It is being recognized that social space is not a normative vacuum. Local laws, along with local cultures and identities, are preserved. Thus, totality in the legal arena is questioned. Post- modern analyses of law and social movements have assaulted the claims of universal theories. Legal pluralism is a key concept in a post-modern view of law. This broader conception of law indicates a more complex relation between law and society. Law is conceptualized as more plural, not located entirely in the state. This legally plural notion of law in which state law is only one of many levels does not give any privilege to centrality. While the legal officials and legal scholars assume the state monopoly of legal production, research on legal pluralism maintains the existence and circulation of a society of different legal systems, the state legal systems being only one of them. The whole structure of law of a people is not limited to the monistic system of state law. The whole structure of law as an aspect of culture should include all regulations which the people concerned observe as law in their cultural tradition, including value systems. An increase in attention to discourse, narrativity, and language along with legal culture, legal ideology, and legal consciousness could be observed in the post-modern condition. Faith in the progressive possibilities of law has been shaken. A new agenda about justice in today‟s world of discursive power and decentred subjectivities emerged in which no group is authorized to construct a vision of a socially just world. There are crosscutting ties that are maintained by individuals on various levels in the post-modern condition. These ties do not replace territorially-based communities or bureaucratically organized formal organizations, but are superimposed on them. The self-identified and reflexive post-modern navigator is in continual dialogue with formal organizations and with ethno-religious communities whose boundaries are not necessarily defined by geography. The boundaries of a society or of a community no longer correspond with the modern nation-state‟s political borders. In that condition, „the local‟ does not remain local since in the multicultural context of a country, ethnic or religious groups may appear as relatively isolated minorities, but when expanded into the global framework, their relationships must be understood as part of a transnational network (McLelland and Richmond 1994: 665).2 2 So far as the Muslim minorities and their laws including their customs are concerned, this phenomenon is of paramount importance, since Muslims and Muslim law issues have started to frequently occupy the global public sphere. Although they might be minorities in some non-Muslim States, at the same time, they are a part of a transnational universal Law, Politics and Society in the Post-Modern Condition 3 Law is a socio-cultural construct and not an Austinian political one, thus, legal pluralism or legal post-modernity always co-exist with multicultural reality. In the socio-legal sphere, which consists of numerous semi-autonomous fields, law both helps to constitute social interaction and is itself constructed by social action where there is a continual dialogue between small, local narratives and totalizing metanarratives. Muslims have become the main players of this post-modern process. Muslims not only have challenged the presumptions of legal modernity but have also shown that „they can become citizens while at the same time retaining their Muslim identity‟ (King 1995: 112). They are not lost between cultures. They skilfully navigate across different cultures. In the normative space they reach the same end as „skilful legal navigators‟: They apply relevant law in relevant contextual situations aiming to meet demands of different overlapping normative orderings. This phenomenon is a post-modern response to legal modernity. It reminds us again that legal modernity has limits and that legal post modernity is a reality. People retain their Muslim law in even secular and modern contexts in a post-modern way although uniform legal systems try to transform society through law, aiming for homogenization. This book identifies Muslims‟ current socio-legal situation and their legal attitudes from different perspectives. The main aim of this study is to analyze the conflict between the assumptions of modern legal systems and plural legal realities. While there is a reconstruction of unofficial Muslim laws in the modern and officially uniform secular legal systems of England and Turkey, in the case of Pakistan, where Islamic laws are recognized to a great extent, legal reform attempts in the areas of Muslim family law by the Islamic Pakistani state have so far not been successful and have led to intense clashes. The study shows that Muslims in these countries react to the modern frameworks of legal systems and do not abandon their locally formulated and interpreted Muslim laws. State formulations and interpretations of Islamic law, as in the case of Pakistan, or its more or less total disregard, as in the cases of Britain and Turkey, lead people to reconstruct their own unofficial Muslim laws. In these three scenarios, modern legal systems try to impose official laws, yet face the resistance of unofficial Muslim laws. The study argues that Muslims recreate, reconstruct, redefine and restructure their Muslim laws as unofficial laws even within a secular or modern framework and thus undermine and obstruct, in various ways, the claim of official law to be the unique regulator of human behaviour in any given social field. The main objective of the study is to show that there will always be dynamic legal pluralism stemming from unofficial Muslim laws. In the case of Britain, it seems that the Muslim minority has not abandoned its adherence to customary laws and has reconstructed it in a new form. This study shows the same phenomenon in Turkey as well. In Turkey, at least some segments ummah with „transnational universal‟ laws which clash, encounter and interact with modern nation-state laws. Law, Politics and Society in the Post-Modern Condition 4 of the Muslim population have reacted negatively to the official, modern, and supposedly entirely secular legal system and are instead following Islamic rules.

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