Vol. 16 No.5 (May, 2006), pp.324-327

MUSLIM LAWS, POLITICS AND SOCIETY IN MODERN NATION STATES: DYNAMIC LEGAL PLURALISMS IN ENGLAND, TURKEY AND PAKISTAN, by Ihsam Yilmaz.  London: Ashgate Publishing, 2005.  270pp.  Cloth.  $99.95/£55.00.  ISBN: 0-7546-4389-1.

Reviewed by Mark Welton, Department of Law, United States Military Academy.  Email: Mark.Welton [at] usma.edu.

The premise of this timely book by Ihsam Yilmaz is simple but important.  Muslims living in modern states (in which they may be either a majority or a minority of the population) resist assimilation into the official legal culture of these modern states; instead, they “skillfully navigate” between meeting the requirements of official law and preserving their own unofficial, customary and Islamic legal traditions.  This is demonstrated by three case studies – England, Turkey, and Pakistan – and is evident most clearly in the area of family law.  These three states have adjusted with varying degrees of success to the legal pluralism that is an inescapable consequence of the post-modern conditions that prevail within them.  In an era of religious confrontation between and within societies, understanding the dynamics of this process is self-evidently valuable.

As described in the two introductory chapters (“Law, Politics, and Society in the Post-Modern Condition,” and “Dynamic Legal Pluralism”), modern states seek control of social organization by requiring uniform adherence to a single official structure of laws.  However, post-modern theory challenges the ability of states to achieve this control due to the prevalence of diverse local communities based on gender, ethnicity, culture and religion.  Legal pluralism, not uniformity, characterizes the populations of these states, in which local communities insist on preserving their own legal values alongside the official system.  These local communities have learned to navigate between the official and unofficial laws to best suit their needs.  While studies of legal pluralism in the past have focused on traditional societies, recent scholarship, including this study, applies theory to the phenomenon in modern, more urbanized states.  This has resulted in the insight that laws and societies are not just somehow dependent on one another, but rather interact in complex systems that must account for official laws, unofficial laws, legal rules, and legal postulates. 

Yilmaz’s discussion of “Muslim Legal Pluralisms” carries this theme forward, succinctly but thoroughly summarizing Islamic law and jurisprudence to provide a foundation for readers unfamiliar with the Shari’a and fiqh—that is, the structure and processes of Islamic law.  Despite the past and present variety of approaches to the formulation and interpretation of the Shari’a, there are certain methodologies and parameters to resolving disputes required by the Islamic system, and these must be understood in order to appreciate the interaction between Islamic law and [*325] official western or western-based legal systems.

The choice of England, Turkey, and Pakistan for the case studies provides a good balance.  The first is a modern western state in which Muslims are a minority, while Turkey is a modern secular state in which Muslims are a majority.  Pakistan is a modern Islamic state in which Muslims are also a majority.

The approximately two million Muslims in England have successfully adjusted to life “on their own terms,” maintaining their own cultural, religious, and even legal identities.  Although English law has officially recognized the legal claims of certain religious minorities (Jews and Sikhs), it has not accorded such recognition to Muslims; nevertheless, Muslims have not insisted on official recognition of the Shari’a in areas such as family life.  Instead, they have generally achieved a level of unofficial autonomy, for example, by resorting to mediation rather than the courts in many types of disputes, or by marrying or divorcing twice, once through official channels and again under the Shari’a rules.  The English legal system is sufficiently flexible to accommodate this pluralism without undue strain.

The chapter on “Muslim Legal Pluralism in Turkey” starts with a short history of the development of modern (“westernized”) Turkey from the late Ottoman Empire to the Turkish Republic.  Yilmaz concludes that, despite gradual secularization of law in the 19th century, and intense and thorough secularization of law immediately preceding and following the founding of the Republic in 1923, with new legal codes, procedures, institutions, and education, traditional Muslim law nevertheless continues to affect both the public and private lives of the people, who have “reconstructed” Islamic laws to satisfy both official (state) and unofficial (personal and communal) requirements.  As in the other chapters, Yilmaz supports his conclusions with relevant statistics regarding patterns of marriage, divorce, and other aspects of (primarily) family life, which reflect persistent adherence to Islamic local law and customs despite the demands of adherence to the rules of the official legal system.

Unlike England and Turkey, Pakistan is built on an ideological foundation of Islam, but like the other two countries, state law is the only official legal authority.  Despite the ideological foundation of Islam, and more than in England and Turkey, the conflict between official (Anglo-Mohammedan) state law and unofficial (Shari’a) law in Pakistan, especially in the area of family law, has led to serious social fragmentation.  This is exacerbated in Pakistan because the “Islam” followed by its adherents is heavily tinged with customs that are Hindu in origin, resulting not only in confusion about what the Shari’a requires, but even greater resistance to official state laws that deviate from customary practice.  Moreover, official laws are viewed as formalities that provide ineffective punishment or other forms of deterrence.  As a result, official limits on the age of marriage, on polygamous marriages, and [*326] the husband’s right of divorce have achieved only limited success.

Yilmaz summarizes these case studies with the observation that just as the state, society, and religion interact with one another in the socio-legal sphere, the legal arena is characterized by the interaction of official law, unofficial law, and legal postulates.  Legal pluralism is a characteristic of post-modern societies, even to the extent of accommodating traditional religious systems such as the Shari’a.  The reluctance of modern states to accept legal (as opposed to social) pluralism has been overcome by the ability of Muslims to transverse the gap between official and unofficial law in numerous ways.  In the future, these states may need to adopt a “supra-modern” legal system that takes greater account of legal pluralism within their borders.  At the same time, Islamic law itself will have to adapt to developments among the Muslims who will continue to insist on applying their legal norms to the conditions of modern western and Islamic states. 

There are many strong points about this book.  The text is supported frequently and consistently with authoritative citations.  The writing style is concise, free of unnecessary jargon, and contains full explanations of Islamic and other technical terms.  The bibliography is extensive.

On the other hand, the plethora of citations and statements based on them can sometimes lead to confusion.  For example, Yilmaz states (with numerous citations) that “[in Turkey] polygamous marriages are only exceptional; the ratio of polygamous marriages has been minimal in the history of Turkey,” but shortly thereafter he notes (with three citations) that “the polygamous local tradition, in the same proportion in which it existed in the past, is still rife. . . .  In public, the number of males who marry polygamously and defend that state of affairs has been steadily increasing” (p.114).  The editing is sometimes poor; there are frequent errors of punctuation, such as semicolons in place of commas and sentences that repeat almost verbatim the preceding sentences.  

Moreover, the author’s repeated instance on certain motifs – for example, Muslims as “skilled” cultural navigators in situations of legal pluralism – can be overdone.  Not all Muslims are necessarily skilled in the postmodern art of transversing the domains of their own laws and customs and the official legal systems of the host country.  Conflicts of identity and allegiance to the state and to Islam within families and communities, especially between generations, are also common and problematic, particularly within western states.

Nevertheless, on the whole, the text is readable and convincing.  The point is well-made that many Muslims have successfully employed strategies to satisfy the requirements of their own laws within the context of state legal systems that, to various degrees, accommodate or resist such accommodation.  Tradition and custom, reflected and reconstituted in Islamic law, remain compelling forces within modern societies in which Muslims are both a minority (England) and a majority [*327] (Turkey and Pakistan).  The degree to which modern states can adjust their laws to accommodate this dualism varies, and Yilmaz’s conclusions seem to be supported by other examples, such as the thousands of Muslims in New York who rely on local imams rather than official channels for resolution of legal problems, and by the recent public demonstrations in France by Muslim women, who insist on religious dress (hejab) in schools, and the government of that state that seems perhaps the least willing of any modern western state with a substantial Muslim population to yield its official monopoly on law, including a rigid secular dress code in public schools.  These conflicts are likely to persist.  This study is a therefore a timely and valuable contribution to understanding the dynamics of this important subject.

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© Copyright 2006 by the author, Mark Welton.