Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 3.5: The role of courts in “making” Islamic law: South and Southeast Asia
Many chapters in this volume explore how Asian courts have been usurping the traditional prerogatives of legislatures and bureaucracies and are finding ways to “make law.” In this chapter, I will discuss what may seem an even more startling phenomenon. Judges in South and Southeast Asia are not merely poaching on the traditional turf of legislators and bureaucrats. They are sometimes poaching as well on the traditional turf of religious scholars. Until fairly recently, Sunni Muslims believed that interpretive authority in questions of religious law lay with scholars trained in the classical Islamic sciences and that this authority was located primarily outside the judiciary. Thus, when faced with open questions of Islamic law, judges were generally expected to seek an advisory opinion from eminent independent scholars. Once the private scholars had provided an interpretation of the law, judges would apply this rule to the case at bar. Today, however, in some parts of Muslim Asia, judges do not rely on religious scholars to interpret Islamic law or to identify new rules where Islamic law has hitherto been silent. Particularly in constitutional courts, many judges who do not have classical religious training are refusing to defer to scholarly opinions about the law. Rather, these judges are developing and applying rules of Islamic law that they are developing for themselves. In this chapter, I will explore how this phenomenon developed and how it has been manifesting itself in three countries in Muslim Asia. I will also briefly consider some of the implications of this development.
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