The previous Chapter focused on discussing specific transposition issues of the consumer acquis in the national laws of seven Member States: Belgium, France, Germany, Ireland, the Netherlands, Romania and the UK. The central purpose of this comparative analysis, in line with the vast majority of writings covering the topic, was to provide a starting point for the exploration of factors that influence convergence. This Chapter focuses on the following points: in Section 1, the aim of the Chapter is presented together with a brief overview of previous work that is of interest for this study. Next, Section 2 explains the methodology leading to the creation of the Convergence Index, the novel tool this study aims to contribute with in measuring the legal convergence resulting out of harmonisation policies. On the basis of this methodology, Section 3 focuses on gathering data from the five directives and their transposition in the laws of the Member States as described in the previous Chapter. Section 4 uses the aforementioned data to ‘code’ values for the Convergence Index, and finally, Section 5 presents some preliminary conclusions.

Aim of the Chapter and Background in Previous Work

As comprehensive as descriptive analyses on the harmonisation of consumer law are, one perspective of this discussion remains under-represented in literature – the need to empirically measure the said harmonisation process. Previous works such as the compilation of the Consumer Law Compendium, or directive-oriented implementation studies are of tremendous help in understanding how European law is integrated into national legal systems. Accordingly, these studies look at contract law directives in a targeted manner and address legal issues in detail. However, apart from executive summaries and comparative tables, no other tools are used to highlight the overall findings of these comprehensive studies. The present research aims to fill this gap and contribute to the current framework with a comparative approach that looks at harmonisation in a cross-directive/crosscountry manner and evaluates the process on the basis of pre-determined factors, in order to measure its converging effect.

General Conclusions

This study aimed to bring a fresh contribution to the already-existing debate surrounding European consumer contract law. It did so by directing the discussion on two different paths – a comparative substantive overview and a mirroring numerical analysis. Three methodological conclusions can be mentioned in the light of this effort, and they are presented in what follows.

(i) Identifying a gap in the present discussion about the harmonisation of European consumer law

Firstly, as highlighted in Chapter 1, the harmonisation discussion is by no means novel. An ever-growing body of literature proves an increased interest in the field of European contract law, or more specifically, European consumer law. Recent developments such as the adoption of the Consumer Rights Directive or the withdrawal of the CESL announce thought-provoking times for contract lawyers. However, the nature of consumer contract law in itself, as well as the ever-growing body of knowledge that disseminates it, create a highly complex field that becomes more and more difficult to grasp in its entirety.

Moreover, while many authors venture into analysing specific Directives or national legal regimes, the attention paid to comprehensively studying the legal convergence arising from European consumer developments is not directly proportionate. Little attention is paid to the extent to which harmonisation, as a specific policy pursued by the European Commission leads to legal convergence as the effect of this policy. What is more, it is safe to say that to date, with the exception of the Convergence Index included in this study, no measurement tool has been developed to quantitatively assess this extent. For this reason, a gap has been identified in the harmonisation debate as it currently stands.

(ii) Filling the gap by developing a self-standing method

Secondly, the present study aims to fill the aforementioned gap. By developing a methodology that helps establish whether and to what extent there is convergence of laws in the field of European consumer contract law, this study wishes to further the academic and policy debates on the effects of European legislative design.

Introduction

A key challenge in the study of Islamic law is how to approach modern concepts that do not readily avail themselves of comparators within the Islamic legal traditions. This inquiry assumes a more complex nature when those conceptual comparators themselves are evolving, contested and open to varying definitions. Constitutionalism is one such concept which has become the subject of increasing scrutiny challenging traditional conceptions of Muslim state and government.

In its earlier, liberal conceptions, ‘constitutionalism’ was broadly defined and built upon three pillars: upholding the rule of law, the enforcement of effective limitations on governmental powers, and the protection of fundamental rights. This was essentially the model received in the Muslim world, upon which Islamic law was grafted so as to ‘Islamize’ constitutional texts and constitutionalism. But modern constitutionalism presents itself in various forms and raises many different challenges and potential contradictions within itself. Constitutionalism and democracy, for instance, appear ‘intimately related yet intrinsically opposed’, giving rise to much debate regarding ‘constitutional democracy’. Loughlin and Walker alert us to the paradox of constitutionalism in the tensions generated by the power inherent in the people on the one hand and in constitutional forms on the other, through which alone it may be exercised. Other issues at the centre of debates on constitutionalism include the impact of global, transnational and international law and governance networks. The constitutionalization of international law, as well as the pluralist nature of domestic legal structures, poses a threat to the very existence of constitutionalism in its classical form.

As in most areas of the Islamic legal traditions, opinion on Islamic constitutionalism too is far from unanimous. Most Islamic law scholars agree that ‘constitutional law (usul-al-hukm) is one of the most under-developed areas of Islamic law and jurisprudence’. Some Qur'anic verses and the Sunna, however, provide elements on which the structure of constitutionalism may be built, including shura (consultation), bay'ah (allegiance), principles of justice and the accountability of rulers. Other antecedents, including the Medina Charter (discussed below), are also cited in support of the historical beginnings of an Islamic constitutionalism. Despite a number of discernible trajectories within Muslim intellectual thought on the subject, claiming an Islamic constitutionalism as inherently a part of the Islamic traditions would in the opinion of some scholars be an exaggeration and ‘falling prey to an anachronism’.

Introduction

One of the main arguments advanced in this book is the inherent dynamism of the Islamic legal traditions and their responsiveness to social realities through various juristic techniques, mechanisms and institutions. Historically, one such mechanism has been the fatwa (plural fatawa) through which an individual, a qadi (judge) or a ruler sought a non-binding response to a specific legal issue. Over time these opinions grew into an imposing body of materials, some of which was incorporated into legal textbooks and manuals for future reference. As a flexible vehicle of legal interpretation, fatawa are a reflection of evolving norms of Islamic law and society in language comprehensible to lay members of Muslim communities.

Today, in an age of print and electronic media, the institution of ifta (the act of issuing fatawa) has undergone significant transformation whilst retaining its core function. Beyond the mediums of newspaper, radio and television, fatawa in their latest manifestation are being issued by ‘Internet muftis’ to a growing, Internet-savvy population of fatwa-seekers. Discourse on Internet fatawa as an interpretative and pedagogical tool, as well as an emerging discursive space in a virtual environment, is an ever-expanding field of investigation.

The present chapter looks at the idea that, in employing a combination of traditional ifta tools as well as the virtual environment of the World Wide Web, Internet fatawa simultaneously challenge tradition and modernity. Tradition is being challenged by a fragmentation of authority and a democratizing of knowledge, making it more accessible to individuals and communities at the national, transnational and international levels; while modernity is being challenged in the way Internet fatawa are legitimating and reviving historical formulations of legal interpretations.

Drawing upon a selection of fatawa on women, gender and family law norms from selected Internet sites, this chapter makes a number of observations. Most basically, the arrival of Internet fatawa has led to a dislocation of traditional forms of authority within the Islamic legal traditions. Internet fatawa exist within a virtual space, available within the privacy of the home, that makes women in particular more confident in raising questions which they would not pose face-to-face.

Introduction

A significant articulation of plurality and evolution within the Islamic legal traditions and conceptions of sharia came about with large numbers of Muslims migrating to non-Muslim-majority jurisdictions and putting down roots there. In the United Kingdom, for instance, the application of Islamic law and sharia is continuously undergoing a transformative process, emerging and evolving as what has been called Angrezi (‘English’ in Urdu) sharia – a hybrid of Islamic law and UK law. In common with Muslim-majority jurisdictions, the focus of Islamic law lies in the sphere of family law, this being central to group identity and cultural preservation through control of members of the group, especially women. An example of such control comes in the form of dispute resolution, focusing on family matters, in Sharia Councils.

The fact that British Muslim communities’ interest in Islamic law and sharia lies foremost in being able to control the outcome of marriage and divorce disputes resonates with how the wider British public and state institutions perceive Islamic law. In 2008, the then Archbishop of Canterbury, Dr Rowan Williams, famously declared that Muslim communities sought the freedom to live under sharia law, and that there needs to be ‘access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK’. He then qualified this by cautioning that ‘recognition of “supplementary jurisdiction” in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women’.

Lord Bach, speaking in the House of Lords a year after Dr Williams's speech, was of the view that we

Reflecting at the Dihliz

As we reach the concluding pages of Modern Challenges, the vantage point from where I stand at the dihliz enables me to look back at the ground covered and offer some reflections. My vantage point has opened up for me panoramic views of wide-ranging pluralities within the Islamic legal traditions, especially when I have looked through the lens of culture and tradition. When I have shifted my sightline to look from a Western and a global angle, I have been able to see the multiple challenges and opportunities posed to Islamic law and sharia by tradition and modernity.

The dihliz, this in-between place, is both interior and exterior to the traditions I have sought to explore. Critically placed at the intersection of overlapping discourses and intellectual universes, the dihliz has for me facilitated insights into various texts and interpretations and cultural frameworks. Privileged to have grown up with multiple identities and languages, and with lived experiences from Muslim-majority and non-Muslim jurisdictions, crossing and negotiating boundaries has always come naturally to me. At times and places where civilizations and cultures meet, interact and are transformed, language and terminology assume a great importance. The richness and depth of the Islamic traditions, steeped in so many cultures, can only be captured by listening to ‘linguistic communities’ other than those of the academy. The vital and living oral traditions of Muslim communities continue to inform the day-to-day dynamics of the Islamic legal traditions, and they cannot remain unheeded.

Poised at the dihliz, I conceptualized the sharia as a flowing stream composed of varying currents – intertwined, dynamic, vibrant, and responsive to changing place and time.