The book poses twofold thesis: First, the judicial process in Islamic court courts is informed by a very clear cultural logic that this logic itself is well informed by contrasting discourses and the play of contradictory elements. Second, Islamic courts are in fact strategic site for modernization of Malaysia.
Peletz in fact writes in a multi-disciplinary tradition involving political sciences, anthropology, sociology, and women studies, by which he provides ethnographic, historical, cross-cultural, and transnational perspective on recent development in Islam and laws. In this regard, his study is against Weberian account on Islamic law, in which Islamic law is seen as an irrational and backward, and against more general attitude of “orientalist” literature that consider Islam as incompatible with modernity, monolithic, and eternally unchanging. He is not the first one doing such studies and he confirms findings of other scholars such as Bowen, Eickleman and Piscatori, Lawrence, and Hefner.
He supports the first thesis by looking at what happens in the court. He find that the practice of Islamic court -- form the way they file the case, the way the judge handle the case, and the judgment they made -- necessarily flexible and dynamics. For example, he shows how the courts put the husband as the initiator who file the case rather than the wife so that the cost of adjudication is covered by the husband.
With regard to his second thesis, contribution of Islamic courts to modernization can be described in a way that Islamic courts and legal institution of Islam have encouraged a certain type of modernity and civil society. First, they provide a legitimate and confidential forum for people to articulate intimate experiences and feeling of different conception of moral injustice. Second, promoting contractual responsibilities among individuals in which they became realized that finally, in the Day of Judgment they individually are responsible, not with some larger groups. Third, the court has been playing a role of democratization of family relations, in which they do it through corrective advice and more encompassing discourses freeing people from constraints of extended kinship. Fourth, the court emphasizes that identities is something chosen, not natural, and therefore it is hybrid and protean.
To the extent that he describes the modernity of Islam, particularly Islamic court, he has done that well. But, there is a kind of contradictory argument in his positions toward Islamic Court. When he deals with the historical data such as punishment and Undang-undang Melaka, he argued the data should not be taken as evidence that such laws were widely known or systematically enforced in Melaka because, firs, there is much more justice and law than crime and punishment and, second, people tend to deal with the disputes and conflict by avoidance, negotiation, and mediation, and/or arbitration rather than adjudication. If we follow this argument, we may argue that what he finds in Islamic court is not strong argument to maintain that Islam can be modern, because what happens in the court, if it really represents modernity if Islam, is more exceptional than norm – majority of Malay Muslims are outside of the court. If Islamic courts democratize family relation, how many families do file their case to the court? If we refer to his own argument, it should be few families because in Malay tradition, informal dispute resolution (negotiation and mediation), are preferred than adjudication.
Another critical problem is the term “modernity” he used to judge his findings. The facts that courts promote equality between men and women, promote individual and contractual responsibility, or promote a kind of openness, are not enough to say that the court is modern. First, those are not new facts in Islamic tradition. For example, the general practice of avoiding Islamic inheritance law in Muslim countries, such as Morocco and Indonesia, can be considered as a Moslem’s way to support female heirs whose share is only half of male heirs in Islamic inheritance law. Second, one of important element in modernity, according to Geertz whose argument is referred by Peletz quoted (Peletz, 2002: 17), is self conscious sense of doctrine. If they do all of these “modern” attitudes without consciously referring to any doctrine, not systematically done, it is not modern.
Generally speaking, however, her study is the most comprehensive study on the recent development of Islamic legal institution, particularly on the practice of Islamic court. (*)
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