In her the letter by Nik Noraini Nik Badlishah entitled Islamic Family Law bill fundamentally unjust, a claim was made which I think is preposterous and erroneous.
Nik Noraini says: 'Family laws codified in the Muslim world are based on conceptions of marriage that were not introduced by the Quran or the Sunnah of the Prophet (s.a.w.), but reflect medieval cultural practices and customs'.
A reference to the book Sumber Undang-Undang Islam dan Pandangan Orientalis by Abdul Halim El Muhammadi shows that Islamic law is based on more than just a reflection of medieval cultural practice.
To summarise, there are four sources of Islamic jurisprudence that are agreed upon by all scholars. They are the:
a. Al Quran - The Holy Revelations
b. As Sunnah - Traditions of the Prophet
c. Al Ijma - Unanimous agreement among scholars
d. Al Qiyas - Analogy
In addition, there are other sources of jurisprudence in Islam that are not agreed upon by all. They are the:
a. Istihsan - Discretion
b. Qawl as Sahabi - The opinions of the Prophet's disciples
c. Al Masalih Al Mursalah - Consideration of public interest
d. Istishab - Presumption of continuity
e. Syar Man Qabalan - Pre-Islamic divine laws
f. Uruf - Contemporary custom and culture
Since these sources are not agreed upon unanimously, laws derived form them are not agreed upon by all scholars.
Nik Noraini's notion that Islamic family law 'reflects medieval cultural practices and customs' is clearly rejected. If we were to go by Nik Noraini's word, we have to assume that other than the Al Quran and As Sunnah, the rest of the Islamic jurisprudence is based on none other than 'uruf'. Nik Noraini's notion denies the other sources of Islamic jurisprudence as stated above.
The question remains what is the source of Nik Noraini's claim? In the same book, Abdul Halim el Muhammady says that Islamic jurisprudence has been accused to have been sourced from many foreign sources by Western Orientalists. It has been accused of being sourced from Greek laws, Roman laws, Byzantine laws, Jewish and Talmudic laws and many others. Sadly for the Orientalists, all these claims are baseless and have been successfully denied. The fact that Western Orientalists cannot agree on where Islam is sourced from is a clear indication of these Orientalists' confusion.
Nik Noraini simply follows suit. The only difference here is that instead of Roman laws, Nik Noraini replaced it with 'medieval cultural practices and customs'. I am very sure that Nik Noraini's claim is as baseless as the claims made by Western Orientalists before this.
However, I am still open if Nik Noraini has any evidence to prove her claim.