The 3rd Session of IIAS West Asia and North Africa Lecture Series | From Fiqh and ’Urf to Islamic and Customary Law: The Positivization of Legal Norms in Islamicate Societies (19th-20th Centuries)
On the afternoon of May 13th, 2021, the 3rd session of IIAS West Asia and North Africa Lecture Series was launched online, with the theme of “From Fiqh and Urf to Islamic and Customary Law: The Positivization of Legal Norms in Islamicate Societies (19th-20th Centuries)”. The lecture was presented by Prof. Baudouin Dupret, Research Director at the French National Centre for Scientific Research (CNRS) and Guest Lecturer at the Faculty of Law and Criminology, University of Louvain, and hosted by Mr. Ding Chenxi, a doctorate candidate at Institute for International and Area Studies, Tsinghua University (IIAS-THU).
Prof. Dupret introduced how the two concepts of “Islamic Law” and “Customary Law” were constructed step by step by scholars and colonial officials during the rule of European colonists over Muslim colonies through a number of vivid cases.
When the European powers started the wave of overseas colonial conquest, the concept of legal positivism was gradually dominating the thoughts of European jurists. The colonial movement in Europe also stimulated European scholars to explore overseas legal knowledge. Under this background, jurists and officials of the suzerains came to the Muslim colonies with a set of unique legal concepts (Legal Positivism). In order to effectively manage the local society, they strived to collect all kinds of materials that they regarded as “laws” and “customary laws”, and formed a unique knowledge system after summarizing, refining and sublimating theories. However, during this process, they imposed their unique legal concepts and scopes on the colonial social situation.
It is true that before the arrival of Europeans, there were norms and habits in Muslim societies that provided guidance for people’s behaviors, but these mobile norms were by no means positive laws in the conceptual system of European jurists in nature. Through the establishment of a centralized government and the promulgation of a unified code, the concept of positive law has been put into practice, while the norms in the original local societies have been tailored and finally stereotyped into “Islamic law” and “customary law”.
When this knowledge system of “Islamic law” and “customary law” was successfully established, in order to find their place in the colonial system, scholars from the colonies came to the law schools of universities established by the suzerains for study one after another, accepted the knowledge system of “Islamic law” and “customary law” constructed by western scholars, and completed the process of positivization of “Islamic law”.
Afterwards, Prof. Dupret demonstrated the effectiveness of the above theoretical framework by analyzing the examples of Dutch, British and French scholars and officials’ activities in colonies.
In the Q&A session, Prof. Dupret commented on the main research paradigms of “Islamic Law” in western academic communities and reviewed the pros and cons of each paradigm. In addition, in response to questions from the audience, he also explained the historical significance of the positivization process of “Islamic Law” and the influence of “Fiqh” and “Urf” on European Muslim immigrants.
Prof. Baudouin Dupret is Research Director at the French National Centre for Scientific Research (CNRS) and Guest Lecturer at the Faculty of Law and Criminology, University of Louvain. His research interests cover laws and norms in the Muslim world, sociology of law and anthropology of law. He is the author of Adjudication in Action: An Ethnomethodology of Law, Morality and Justice (Ashgate, 2011), Practices of Truth: An Ethnomethodological Inquiry into Arab Contexts (John Benjamins, 2011), Ethnographies of Islam: Ritual Performances and Everyday Practices (Edinburgh University Press, 2012), Law At Work: Studies in Legal Ethnomethods (Oxford University Press, 2015), What Is the Sharia (Hurst, 2018), and Ethnographies du raisonnement juridique (LGDJ, 2018), Legal Rules in Practice: In the Midst of Law’s Life (Routledge, 2020), Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge, 2021).
Text by: Wang Zijing
Typesetting by: Wang Zijing
Reviewed by: Ding Chenxi