Islamic Family Law: Forward by Antony Allott
It was over twenty years ago that the Department of law at SOAS presented a series of public lectures by members of the Department on 'Family Law in Asia and Africa', in which Islamic law figured prominently. These lectures were largely the idea and inspiration of the then Head of Department, Britain's foremost scholar of Islamic law, Professor Sir Norman Anderson. He also edited the publication which flowed from this initiative.
It is right that we recall these facts now, since Sir Norman and his colleagues, notably Professor Noel Coulson (so unhappily and prematurely taken from us), laid the foundations for mounting the conference which led to this book. We build on their pioneering efforts.
I may be the least qualified in Islamic law (though I have picked up a fair amount from my close association with Norman and Noel), but I would like to venture one or two brief reflections - as a layman - on the subject addressed in the book.
First of all, family law. I see family law as the core, key, and foundation of any legal system. What we are seeing in the West today is the virtual breakdown of the family and family law. Parental rights in England: now we refuse to recognise them, and insist instead on parental responsibilities. The control and authority which a parent may have over his or her children are such as may be conceded to them from time to time by a court or legal authority. Then, inheritance: from a period when English law recognised excessive individualism, when a testator could do as he pleased with his property and deprive his family of all rights, we have moved to a system of quota shares of capital and income for the benefit of dependants. The story is the same with marriage and divorce: one third of marriages now end in divorce, while young people in England and elsewhere are increasingly choosing not to get married but to enter informal relationships instead.
The developing world, with which this book is also concerned, tells an equally dismal story. Westernisation, the product both of colonialism and the pervasive effect of Western ideas, education and economic change, has imported these difficulties into Third World countries too. But in addition they have to face the problems of pluralism, largely a product of colonial rule, where the imported Western family law systems co-exist and often conflict with indigenous customary and religious systems. The world's largest under-class, women, is now emerging in many areas into greater social and legal equality. Just as the by-products of the industrial world are found today even in the pure air of the remotest Antarctic, so intellectual and social influences have radiated out from Western countries throughout the world.
So far has the process of deterioration gone that a French scholar could publish a few years ago in a legal journal an article with the arresting title of 'Requiem for the African family'. We are, perhaps, in the presence of a universal phenomenon.
Islamic law is in a special position in all this. As a worldwide system it may be contrasted interestingly with another global system, that of the common law, which has spread to every continent from its country of origin. Of course, Islamic family law, founded on the shari'a, has a special character as being partly of divine inspiration and partly the product of tradition. But similar questions arise. Just as the common law is the product of a particular society but now finds itself adapting to operation in many different kinds of changing society, so with Islamic law. One of the interesting questions is the extent to which Islamic law is susceptible of adaptation and change. Islamic law must operate today in societies where it is dominant, as well as in those in which it is merely one component of a plural legal system.
Modernisation, then, is one theme which must be explored. Legal pluralism -the recognition of variant ways of living and behaving, regulated by different systems of law - is another. We face in our own country, Britain, today, the fundamental question whether growing pluralism should be expressed in legal pluralism too: the possible recognition and application of Islamic personal law here is on the agenda.
The coverage of the book is ambitiously large. I attach just two minor comments of a geographical kind. First, from my personal standpoint it is a matter of of some regret that the countries of Africa (except in so far as they are reclassified as part of the Middle East) do not figure on the agenda, when one notes that practically all the problems of rcognising, applying and developing of Islamic family law in a modem country with a plural legal system are acutely demonstrated in a country like Nigeria, where this is currently a principal legal and constitutional issue.
Next, I note - without elaborating on the point - that a work on Islamic family law can include a discussion of the state of the shari'a in the United Kingdom. This tells us a good deal about what is going on, in legal and cultural terms, in our own country too. We are part of this particular world scene now, like it or not. One looks forward, with the keenest of interest, not just to reports of the present position, but to discussion and reflection on the policy and practical issues which now confront us as a result.
* Emeritus Professor of African Law at the University of London Former Head of the Law Department, S.O.A.S. Adapted from an opening address to the conference on 'Islamic Family Law: State Identity and Minority Rights', SOAS, 18–19 May 1989, where most of the papers included in this book were presented.
- JND Anderson ed., Family Law in Asia and Africa, London 1968. The lectures were given in London through the academic year 1965–1966.
- Roger Decottignies, 'Requiem pour la Famille Africaine', Annales Africaines, 1965, pp. 251–286.