Judicial Activism and Islamic Family Law: A Socio-Legal Evaluation of Recent Trends in Bangladesh

Abstract

AbstractThis article critically examines instances of judicial activism in the field of Islamic family law in Bangladesh in an attempt to assess this judicial trend. Seeing 'judicial activism' mainly as an enlightened application of ijtihād and also as society-specific application of statutes based on, or related to sharī'ah, we highlight the justice-ameliorative role of this concept. The authors argue that judicial activism has led to the amelioration of the status of women in Bangladesh as compared to a traditional construction of the sharī'ah, and that judges have adequate authority and legitimacy to develop Islamic family law to ensure better justice in the home. We conclude that modernist judicial reform is not only desirable but also inevitable in the current South Asian socio-legal milieu, where legislative passivity vis-à-vis Islamic family law prevails.