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Geneive AbdoFeldman is an ardent constitutionalist trying to show how, in theory at least, his democratic vision could be compatible with another country's traditions and institutions.
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"In Feldman's fascinating intellectual journey through history, Islamic law, and modern politics, you will discover the power of 'justice.' It is both the driving force behind efforts in the Arab world to democratize, constitutionalize, and modernize Islam, and a weapon for the worst kind of abuses and authoritarianism. Feldman's book works through these tensions between theology and power with consummate dispassion and scholarship."—Leslie H. Gelb, president emeritus of the Council on Foreign Relations and former New York Times columnist
"Noah Feldman has raised a central discussion in Islam about the nature of the Islamic state that is too often missed or misunderstood. Regardless of ideological or religious affiliation, the reader needs to engage with Feldman's clear and sympathetic arguments in order to make sense of what is happening in the Muslim world today."—Akbar S. Ahmed, American University
"Scholarly and sophisticated yet highly accessible, this book makes an extremely important contribution to contemporary discussions of both Muslim politics and Islamic law. Feldman's work provides a historical depth that has often been lacking in studies of law and constitutionalism in modern Muslim societies."—Muhammad Qasim Zaman, author of The Ulama in Contemporary Islam
"Whether you agree or disagree with Professor Feldman about what constitutes an Islamic state, you will most likely be captivated by the author's scholarly reflections."—Abdullahi A. Gallab, Journal of Law & Religion
"[T]his book is an insightful work with many original and fresh ideas and arguments about the rebirth and rise of the Islamic state in the modern Muslim world which has gained momentum after the 'Arab Spring'."—Tauseef Ahmad Parra, Muslim World Book Review
Copyright © 2008 Noah Feldman
All right reserved.
WHAT WENT RIGHT?
* * *
The Call for a New Islamic State
Not only Western experts but the educated classes of the Muslim world have been astonished over the last quarter century at the rise of a political movement calling for the creation of Islamic states in majority-Muslim countries. That many governments in Muslim countries are badly in need of reform is not in doubt. Especially in the Middle East, dictatorships and monarchies have failed to bring economic prosperity, military dominance, or even basically legitimate government. But why has this sorry state of affairs not led to the emergence of domestic political movements seeking the creation of liberal democracy as we saw, for example, in Eastern Europe? What is different about the Muslim world?
Deepening the mystery of the rise of a distinctively Islamic political vision is the fact that, for most of the twentieth century, the standard view among most experts both in and outside the Muslim world was that the classical Islamic state had failed. Islam, on this view, was the organizing principle of the Ottoman Empire, as it had been the basis for the Islamic dynasties before it. The OttomanEmpire had collapsed under the weight of its own backward-looking worldview, plunging the peoples who had lived under it into a shameful period of colonial subjugation. By the end of the twentieth century, it was obvious that the nationally organized states that succeeded the Ottoman Empire had not performed very well themselves, and that their distinctive brand of nationalism and state socialism was on its way out. But why should that have directed a frustrated public back in the direction of the form of government whose failure had opened the door for this sorry chapter in Muslim history?
Most observers who have set out to answer this question have emphasized the perception in the Muslim world that secularism was bound up in the failure of nationalist state socialism. Meanwhile, over the course of the twentieth century there had always been a few voices consistently calling for a return to Islam as the solution to political problems. For the most part, they had not been heeded, but once everything else had failed, more people began to ask: why not give Islam a try?
There is much to this account of the rise of Islamic political views to the forefront in recent years. If one notices that, for thirteen hundred years, Islam provided the dominant language of politics in the Middle East, and if one treats the twentieth century as a brief aberration, the argument gains still more force. Then the reemergence of Islam looks like a return to the norm, and the rise of a secular nationalism looks like the historical phenomenon in need of special explanation. The extraordinary capacity of Islam to generate a language of justice also helps explain its great value to people seeking to resist governments that are plainly unjust. But even this richer account fails to fully explain the goal that is always placed first in the political platform of those who call for an Islamic state: the restoration of the shari'a to its central role in Islamic society.
Indeed, to hear the Islamists tell it, the shari'a is precisely what makes the state Islamic. Consider the simplest and most eloquent slogan of the Islamist movement: "Islam is the solution." Taken out of context, it sounds fanciful and naive. How could Islam alone reverse deep problems of political dysfunction and economic stagnation? To the Islamists, though, and indeed to their intended audience, "Islam" means the shari'a, understood as an all-encompassing structure that precisely orders social relations and facilitates economic justice. As if to bring the point home, some Islamists also insist that "Islam is our constitution." Again, the claim makes little sense if taken as an abstraction. But to understand the shari'a as a constitutional ground rule is to invoke a rich and complex history of constitutional law and theory that stretches back centuries.
In essence, then, the call for an Islamic state is the call for the establishment of Islamic law. Once we take this demand seriously, we can begin to understand why so many people in the Muslim world find themselves attracted to Islamic politics. Looking at their own states, they see clearly that power, not law, is structuring political, economic, and social relations. They simultaneously see that their states are broken. Law sounds as though it might be a solution. What is more, law seems to hold particularly great promise because, in the collective memory of the Muslim world, it is still dimly remembered that the classical Islamic state was a state that was governed by law and that governed through law.
The Birth of Islamic Law
To Westerners, and even to those Muslims educated under Western-influenced conditions, it may sound extremely strange to describe the classical Islamic state of the Ottoman Empire and the many dynasties that preceded it as fundamentally legal. Western writers have for centuries gone to great lengths to describe the Muslim world as the home of Oriental despots who did what they would, free from the constraints supposedly imposed on Western rulers. In fact, many of the most enlightened, law-loving Western thinkers-Montesquieu is one famous example-used the image of the Islamic East as a literary device for projecting their vision of the worst possible non-legal regime.
For the most part, they did this not out of hatred or spite, but simply because every good political allegory needs a contrast between a utopia and a dystopia. Even sophisticated thinkers like the great German sociologist Max Weber used Islam in something like this way. When Weber wanted to describe judgment handed out without legal rules of decision, he used the image of the Muslim qadi sitting under the palm tree, dispensing justice as he saw fit.
Nothing could have been further from the truth. The qadi was supposed to judge according to law, and when he did not know the law, he was supposed to refer the inquiry to a qualified jurist who would answer in the form of a fatwa, a legal responsum. The roles of both the judge and jurist were carefully defined by law and by custom. The judge would have been appointed to his post by an official charged with this task and responsible ultimately to the caliph, who sat at the top of the legal structure of the Sunni Islamic state. The jurist, for his part, would have earned the title of mufti, conferring the right to issue fatwas, after a rigorous education at the hands of more senior scholars who reserved the right to authorize their students to engage in this formal legal practice.
The self-regulating community of scholars expert in the law was as much a part of the legal system as was the judge, who was usually appointed from among their ranks. But unlike judges, who became part of the state apparatus by accepting a caliphal appointment and what pay came with it, members of the scholarly class were not named by anyone connected to the government. They became scholars by education and deportment, and their status was determined by the reputation they enjoyed among their fellow scholars. And it was as scholars, not as judges, that they exercised their exclusive right to explicate God's law.
How did this arrangement come about? How did the scholars, men with little direct political power, no armies, and often no government posts, become the sole keepers of the shari'a, and hence the only meaningful check on the power of the ruler? The answer goes back to the way Islamic law itself developed alongside the Islamic state.
In his lifetime, the Prophet Muhammad was both the religious and the political leader of the community of Muslim believers. His revelation, the Qur'an, contained some laws, pertaining especially to ritual matters and inheritance; but it was not primarily a legal book and did not include a lengthy legal code of the kind that can be found in parts of the Hebrew Bible. When the first generation of Muslim believers needed guidance on a subject that was not addressed in the revelations they had heard, they went directly to Muhammad. He either answered of his own accord or, if he was unsure, awaited divine guidance in the form of a new revelation.
With Muhammad's death, revelation to the Muslim community stopped. The joint political-religious leadership position passed to a series of caliphs who stood in the Prophet's stead. The Arabic word khalifa ("caliph" is an anglicized version) means a substitute or stand-in.
It appears that some of the earliest caliphs may have thought of themselves as stand-ins for God. That would presumably have given them enormous authority to speak on God's behalf, even if they did not claim to receive prophecy. Within a few generations at the outside, though, it became accepted that the caliph was a stand-in for God's messenger, Muhammad, and not for God. That left the caliph in a tricky position when it came to resolving difficult legal matters. The caliph possessed Muhammad's authority, but not his direct access to divine revelation. It also left the community in something of a bind. If the Qur'an did not speak clearly to a particular question, how was law to be derived?
The answer that developed over the first couple of centuries of Islamic rule was that the direct revelation of the Qur'an could be supplemented by reference to things that the Prophet had done or said in his lifetime-collectively, his path or sunna. These actions and words were captured in an oral tradition of reports passed from one person to another, beginning presumably with someone who witnessed the action or statement firsthand. But of course even a report (hadith) deriving from a particular factual situation cannot answer most legal problems that arise in future cases. For that it was necessary to reason by analogy from one situation to another. There was also the possibility that there might be a communal consensus about what to do under particular circumstances, and that, too, was thought to have substantial weight.
The fourfold combination of Qur'an, the path of the Prophet as captured in the collections of reports, analogical reasoning, and consensus amounted to the basis for a legal system. But who would be able to say how these four factors fit together? Indeed, who had the authority to say that it was these factors and not others that formed the sources of the law? The first four caliphs, who knew the Prophet personally and were leading a rapidly expanding empire that was focused more on conquest than on governance, might have been able to make this claim for themselves. But after them, the caliphs were faced with a growing group of persons who asserted that they, collectively, could ascertain the law from the available sources. There comes a point in the birth of every legal system at which someone must make a foundational assertion that he is entitled to say what the law is. And there is safety in numbers. The self-appointed group who asserted authority to identify the law came to be known as the scholars-and over the course of a few generations, aided no doubt by the need for an organized legal system in a large empire, they got the caliphs to acknowledge them as the guardians of the law.
The Heirs of the Prophet
The exact process whereby the scholars simultaneously created Islamic law as a distinct category and established themselves as its definitive interpreters remains somewhat obscure. That is not at all unusual for the origins of a legal system. The history of legal systems is often murky, and so it is always desirable for the class that controls the law to act as though it has always been in charge. In English common law, the judges dealt with this problem of origins by claiming that the law itself ran back to a time out of mind of man. For the Islamic scholars, the opposite assertion applied. Men's memory did run back to the time of the Prophet, and indeed memory was the crucial source of the sayings that provided evidence about the Prophet's path. The simplest thing to do was to act as though, from the moment of the Prophet's death, there had always been proto-scholars gathering accounts of his practice and reasoning from these to legal conclusions. In some sense this must surely have been the case, since people always need to resolve concrete disagreements. It seemed natural for the scholars to understand stories of property disputes between, for example, the Prophet's daughter Fatima and Abu Bakr, the first caliph, in terms of legal principles that were assumed to have been at work in them.
Not that the scholars naively assumed that everything said about the Prophet was true. Relatively early in Islamic history they began trying to distinguish between reliable reports and those that may have arisen by error or fabrication. As reports proliferated, memorized in the thousands by increasingly specialized transmitters, it became increasingly important to sort out good from bad.
Eventually there developed a set of criteria for doing so, based largely upon the chain of transmission of the reports from one transmitter to the next, which were conveniently incorporated and memorized alongside the reports themselves. By the time collections of the reports were being written down (now more than three centuries after the events recorded in them), there was said to be a "science of reports" evaluating the characters of the transmitters, their reliability, and the soundness of the entire chain, which could not be stronger than its weakest link. Evaluating reports regarding the Prophet was just one component of legal study. But from the scholars' perspective what mattered was that, like other pieces of the legal reasoning process, it remained their exclusive preserve.
In charge of both assembling the relevant legal materials and interpreting them, the scholars could truly be called, in the words of one report, "the heirs of the prophets." Technically speaking, the scholars could not make the law. Only God could do that, and only prophets could report that he had done so. According to a theological doctrine broadly embraced among Muslims, Muhammad was "the seal of the prophets," after whom no revelation would be forthcoming. That left the scholars to interpret and apply God's law. In theory, the scholars discovered the law in a manner not entirely unlike that of English judges who claimed to discover the common law by reasoning from ancient precedents. In practice, though, both sets of judges were as good as making the law-not by total invention, but through the tremendous power of interpretation.
Over time, different schools of legal thought among the scholars coalesced around certain key figures whose influence stretched over particular geographical areas that were under Islamic rule. Markers of a mature legal system, the schools of legal thought had an institutional component that emerged from their intellectual cohesion. A young scholar could attach himself to a particular school, which meant learning the doctrines of that school and committing himself to following those doctrines when it came to issuing actual legal rulings. The different schools were aware of each other, and they often defined their doctrines through a kind of indirect dialogue. The greatest scholars typically preserved the right to decide an issue based on the teachings of one of the schools to which he did not belong, or by looking outside of the school doctrines altogether and back to the original sources. But for most ordinary jurists, the obligation to stay within the doctrinal constraints of his own school created a certain amount of regularity and predictability. After all, one thing that makes a legal system effective and lawlike is that the decisions of legal actors are shaped or even determined by the legal materials they have in front of them and the authoritative techniques of interpretation recognized by the system itself.
Scholars and Caliphs
Legal institutions like the schools do not develop in a political vacuum. For law to be practically relevant, as opposed to purely abstract or theoretical, it must have some connection to the way power is deployed by those in authority. Although Islamic law was "jurists' law" in that its content was determined by the jurist-scholars, and not the state, it was also state law in that it had a mechanism for being enforced by the state. That mechanism was the judiciary, appointed by the caliph and serving under his direct authority.
Excerpted from The Fall and Rise of the Islamic State by Noah Feldman Copyright © 2008 by Noah Feldman. Excerpted by permission.
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PART I: What Went Right? 17
PART II: Decline and Fall 57
PART III: The Rise of the New Islamic State 103