Transformation of Sharia into State Law in British India and its Current Relevance in Pakistan

Under the English legal system in British India Sharia was transformed into the state law to suit the requirements of the colonial state. The state wanted certainty of law. Therefore, classical legal texts such as the Hidaya and the Fatawa al-Alamgiriyya were translated and transformed into the ‘codes of law’. This adversely affected the traditional role of ulama as the custodians of Fiqh and intermediaries between the state and community.

Further, adjudication of legal disputes also played an important role in the transformation of Sharia because of the binding legal nature of the decisions of higher courts. Legal commentaries systematically organised these decisions in the form of textbooks. These textbooks were used by lawyers and judges. Some of the important legal commentators included Macnaghten, Ameer Ali, Wilson, Tyabji, Mulla, Abdur Rahim, Vesey-Fitzgerald and Fyzee. These textbooks were also taught at law schools. The graduates of local and foreign law schools replaced ulama as the cultural intermediaries between the colonial state and native community. This changed the pre-colonial arrangement between rulers, as the representatives of political power, and ulama, as the representatives of moral authority. This also diminished tri-laterial categorisation of Sharia (Fiqh), Qanun (rulers ordinances) and Urf (custom), which prevailed in the pre-colonial judicial system. The result of the interaction between Islamic and English legal systems was Anglo-Muhammadan Law, later called Muhammadan law or Muslim Personal law. This system did not require the participation of ulama in its operation.

The current legal and judicial system of Pakistan inherited this heritage from the colonial state. However, ulama tried hard to get their share in this system. In the 1980s they achieved considerable support from the state. The establishment of the Federal Shariat Court and the Shariat Bench in the Supreme Court gave them the position of judges, albeit their judicial powers remain limited. Ulama could have contributed in lessening the judicial problems by providing an alternate dispute settlement mechanism at least in family law cases. However, no substantial step in this respect has yet been taken. 

During the last couple of decades, a surge in Islamic banking and finance has given traditionally trained ulama an unprecedented leverage to influence the commercial activities and simultaneously improve their economic conditions. However, the chances of ulama getting back their moral authority over the society depend on their probity and piety as observed by the masses. 

In the socio-political context of Pakistan, it is hard, though not impossible, for an honest religious scholar to win political sympathies of the public. In this scenario, whether ulama would do better by staying away from dirty politics and by performing their historical and traditional function of guiding the society by setting personal example of piety and honesty? Ideally this should have been better for them and the society. Yet Pakistani political history has shown, time and again, that religion motivates the masses more than anything else. Therefore, as the custodians of faith, ulama can hardly keep themselves off politics. They will continue to play an important role in the political and legal system of Pakistan.