Prof. Abou El Fadl on The Modern Dynamics and the Islamic Legal Tradition, part 2

The pre-modern dynamic, and the normative values and understandings that informed the practice of Islamic law, do not exist today. Arguably, the state in Muslim countries has become too powerful and hegemonic to permit the autonomous existence of the Shari'ah. Furthermore, the Civil law system and the culture of legal codification have become pervasive in Islamic cultures. This has led to obsessive attempts to codify Islamic law, and to a compulsive tendency to focus all efforts on the implementation rather than the elucidation of the Divine law. Perhaps, considering the current circumstances, there is no real possibility of rekindling the Islamic juristic heritage.

The modern practice of Islamic law is, in a word, "suffocating" - a person with any respectable degree of intellectual curiosity or creativity will find very limited accommodations in the current intellectual climate. There are many complex reasons for this, but among the primary reasons is that Islamic discourses remain locked in the apologetic paradigms of the 1940s and 1950s or the pietistic regurgitations of the hadith hurlers. Classical Muslim jurists used to describe their own role as akin to the role of doctors, and the role of the hadith specialists as akin to the role of pharmacists. [11] In their view, pharmacy is a science while doctoring is an art, and an art without resourcefulness and creativeness is not worthy of the name. In the contemporary setting, it is clear the pharmacists of Islam have become the doctors, and have substantially dispensed with the need for any form of art, resourcefulness, or creativity. Part of the problem is the currently prevailing conception of Islamic law.

 And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses by Khaled M. Abou El Fadl, pg. 109-110