Juristic Authority vs. State Power The Legal Crises of Modern Islam-Wael B. Hallaq PDF

Juristic Authority vs. State Power: The Legal Crises of Modern Islam Author(s): Wael B.
Hallaq Reviewed work(s): Source: Journal of Law and Religion, Vol. 19, No. 2 (2003 - 2004), pp. 243-258 Published by: Journal of Law and Religion, Inc. Stable URL: http://www.jstor.org/stable/3649176 . Accessed: 24/01/2013 07:25
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JURISTICAUTHORITYVS. STATE POWER: THE LEGALCRISES OF MODERNISLAM*

Wael B. Hallaqt
is the cornerstone of any law or legal system To say thatauthority is to statethe obvious. Authoritynot only defines the law but in effect constitutesit formallyand substantively. There can be no functioning law or legal system without an underlyingstructureof authoritythat may in turn derive from another power-based or authority-based such as a state. This muchwe takefor granted. substrate, Although it is commonplacefor the Westernlawyer or jurist to such a view the state as a body wielding and exercisinglegal authority, for his normative Muslim nor and view is neitherobvious counterpart, even less obviousby far to the Muslim masses aroundthe world. Yet, the greatmajorityof today's Muslim countriesrun their paradoxically, on legal systems the operative-and very concrete-assumptionthatit is the state that produces legal authority. In other words, within the nationalbody politic of each moder Muslimcountrytherelies a source of legal powerthatpresumably legitimizesand enforcesboth the public actionsof the law andthe provisionsthatgovernthe privatesphere. Muslim thinking because in contemporary I say "paradoxically" there exists an obvious dislocation between two perceptionsof legal authority,one emanatingfrom the state and the other from elsewhere. This second source of authority has been the dominant, indeed unrivaled,conceptionfor over a millennium,while the perceptionof authoritylodged in the states was introducedin these nations only andsocial) rupture sumsup the legal (if not cultural sourcesof authority of so-called "modern reform." the introduction with thatoccurred As is well known, early in the 19th century,the OttomanEmpire, on a process of reformthat was to change includingEgypt, embarked not only the face of the then existing legal system, but also its inner structures. This sort of process also obtainedin FrenchNorth Africa
* This essay represents at the Middle East a slightlyrevised versionof a paperpresented 2003. heldby Yale Law School in Granada, Spain,in January Legal StudiesSeminar, Institute of IslamicStudies,McGillUniversity, Montreal, t Professor, Quebec,Canada.
during the 19th and 20th centuries. The dislocation between the two
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and, even earlier, in British India (which included today's Pakistan). The general featuresof this foundational change will become clear in due course. What I would like to propose in the meantimeis that this wave of crises in Muslim societies change created an unprecedented the world, throughout manifestingthemselves on the social, ethical, and moral, military technological levels among them. Nowhere, however, did these crises have an effect as severe as they did on the legal sphere, our concern here. In the process of reform, which was the nation-state, intimatelyassociatedwith the buildingof the "Muslim" this state from the of a law was appropriated hands by professionallegal elite. Relatively suddenly, law and all its provinces became a state enterprise,a colossal (if not devastating)leap in the Muslim tradition andpsyche. The effects of this suddenandmassiveleap were many, only one of which was the crisis of politicallegitimacy,which, in and by itself, is of no concernto us here. Ourconcernis ratherto show how this crisis of political legitimacy resulted from a systematic demolition of legal authority. No argumentis here needed to demonstratethe problems legal authorityand legitimacyin the Muslim world today, surrounding to except say that one majorsymptomof it (aside from the astounding political violence that it has generated)is the constant and consistent popular call to restore the Shari'a-a call that, at a minimalist resoundsin a deep search for culturaland unmistakably interpretation, dominates the discourseof moder Muslims, The call politicalidentity. and the tracts, pamphletsand books expoundingthis call are legion. it threatens to shakethe existing politicaland Forcefuland deep-rooted, in at least severalMuslim countries. It is imbuedwith legal structures significantpoliticalmeanings,one of which is embeddedin the message that restoringthe Shari'a amountsto nothing less than displacingthe of the modem nation-state,very much in the existing legal structures were createdto displacethe Shari'a same way that these very structures The call to restorethe Shari'a-however two centuries. the during past varied the contents of the call may be-is in effect an appeal to a counter-revolution. from the hands It is thus preciselythe shift in the axis of authority Muslim legal professionto the modernnation-state of the "traditional" that must commandour attention. From the perspectiveof authorityanalysis, this shift is the crux of the matter, and underlies the very legal andpoliticalcrises. meaningof the current The questionthat ariseshere then is: Whattype of authority lay at Islamiclaw? To answerthis question,it is useful the base of traditional
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to refer to the relevanttypes of authoritythat have been identifiedby sociologists and others,althoughwe can immediately,and for obvious reasons, isolate such types as moralor charismaticauthority. We may even exclude religious authority,despite the fact that Islamic law is supremelyreligious in character. Religion qua religion tends less to it with an auraof on Islamiclaw qua law thansurround bestow authority at the is most Islamic law fundamental level, religious only sanctity. more as a holistic entity than its particulardetail. As we shall see, not just because it is believed to be the Islamic law derivesits authority God did not reveal a law but only law of God, for hermeneutically textual signs or textual indicationsthat were to remainempty of legal the significancehadthey been left unexplored.Or more metaphorically, God of Islamrevealedonly the basic buildingblocks of the law with no as to how the House of Law should of a blue-print more thanintimations of these out blocks. Obedienceto a law is and formed be constructed certainly backed by God's authority,but what is precisely that law which requiressuch obedience? If Islamiclaw stipulatesprovisionX or a Y (the constitutiveelementsof the law), obediencemay be ultimately to God, but the authority backingthe very stipulationsof X and Y are not His alone, if at all. For He never revealed these stipulationsor provisions,and thereforecannotbe held responsiblefor them. All God did was to reveal the "textual signs" that form the speculative, basis of legal construction,and inasmuchas X and Y hermeneutical could be derived from these signs, so conceivably could the P andQ. constructions It is therefore the agents of interpretiveconstructionwho are responsible, and these are the jurists. They were the ones who constructedthe House of the Law, and they were fully responsiblefor of the very methodologyaccordingto which Islamiclaw the elaboration not only accurate but also it was to be. It is therefore edifice the became necessary to insist on the characterof Islamic law as "jurists' law" (without having to associate it too closely, for instance, with Roman law). Islamic law is jurists' law not only because it happenedto have been constructedby jurists, but mainly because the jurists are the it for over a millennium. This, in thatsustained carriers of the authority What to the leads us turn, type of authoritydid these jurists question: said as we earlier,is by no means sufficient carry? Religiousauthority, to explaintheirrole. If we were to insist on this typology,then all men of religion should be the carriers of this authority, including the theologiansandthe mystics. But we know full well thatthese two kinds
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of religious scholarsneitheraspiredto nor attained the statusof carriers of legal authority.It was only thejuristswho did, and if they succeeded in doing so it was because they were the sole agents of legal epistemologyand hermeneutics.Moreover,the juristsand those whom they trained and, in one way or another, supervised were also the custodiansof Muslim societies. They were the spiritualand practical guides of the umma(the Muslimcommunity); they controlledthe entire infra- and super-structures of legal education;they ran what we might term municipal affairs. They collected taxes and improved public the affairsof the market-place and controlledand ran works;supervised the charitable foundations, very foundations of their professional existence; and they functioned,inter alia, as guardiansof orphansand otherunprivileged social groups,administering theirfinancialand other affairs.' The legal profession,with the juristsat its head, was therefore at once a religious, moral, social, and legal force. It is difficult to conceive of, much less write,the social, culturaland legal historyof the to the centralrole the legists played Muslimworldwithoutdue attention in it. In fact, thereis little Islamichistoryto be writtenwithoutIslam's to its own civilization. legal professionandits contributions these social roles were admittedly In termsof generating authority, enhanced the image of the jurists as both supportive. They merely custodiansof the Shari'aand the unfailingcivic leadersof the Muslim communities. Instead,it was mainly the role thatthey played as legal which bestowed on the jurists their distinctive mode of interpreters was ultimatelyepistemic in In authority. this capacity,their authority and how it is be derived, interpreted the law to and nature-knowing epistemicauthority.2 appliedwere the qualitiesthatconferred ran throughthe entire It must be stressedthat epistemicauthority to bottom. The Islamic from top legal profession legal hierarchy, of legal "players," beginningwith the school acknowledgeda hierarchy eponyms-or founders of the legal schools-and ending with the and applied the legal muqallids, those who followed, reinterpreted, doctrinethat had been establishedby their superiorforerunners. The eponyms were deemed absolute mujtahidswhose legal knowledge, presumed to be all-encompassingand wholly creative, is causally connected with the founding of a school.3 The schools are not only
1. Emile Tyan, Judicial Organization,in Law in the Middle East 236, 259-263 (M. Khadduri & H.J.Liebesneyeds., TheMiddleEastInst. 1955). 2. Wael Hallaq, Authority, Continuityand Change in Islamic Law 1-23 and passim U. Press2001). (Cambridge 3. Id. at 1-23.
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namedafterthem, but are purported to have originated with them. The and to the absolute attributed wide-rangingknowledge comprehensive is matched their assumed mujathids only by in-depth knowledge of, among other things, legal methodology(which is by necessity of their own creation),Quranicexegesis, the study and criticism of Prophetic traditions, the theory of abrogation, legal language, positive and substantive law, arithmetic, and the important science of juristic disagreement. The most salientfeatureof the founder'sinterpretive activity is no doubt the direct confrontationwith the revealed texts, for it is this privileged involvement with the divine word that required and presupposedthoroughfamiliaritywith so many fields of knowledge. Even when certain cases requiredreasoning on the basis of already establishedlegal rules and derivativeprinciples,the foundingjurists' is held to be, in the final analysis,thoroughlygroundedin hermeneutic the revealedtexts. The founders'doctrinesconstitutethereforethe only purely juristic manifestationof the legal potentialityof the revealed in other words, revelationwould language. Withoutthis hermeneutic, in it of the legal remainjust that, revelation,lacking any articulation content. Their doctrineslay claim to originalityand authoritynot only because these doctrinesderive directlyfrom the texts, but also because they are gleaned systematically,by means of clearly identifiable of hermeneutical principles,fromthese texts. The systematiccharacter the doctrinesis seen as a productof a unifiedandcohesive methodology thatonly the founderscouldhave forged. the centuriesto be the holders If the schools continuedthroughout it was by virtueof the fact thatthey both inheritedand of legal authority maintainedthe authorityof the respectivefoundersand their students. This maintenancewas achieved first by reenacting, and second by defendingthe founders'doctrines.4 But it is not the positive doctrine alone that they defendedor reenacted; rather,in most cases, what they the methodologyand positive defendedwas the founders'hermeneutic, the which law was derivedand interpreted. means of by legal principles It was in fact common enough for later jurists to deviate from the positive provisionsof the founders'legal doctrines,but never did they abandonwhat they perceivedto be the founders' legal methodology, positive principlesand hermeneutic. It was preciselythis loyalty-the and principles-that continuedto loyalty to the tradition'shermeneutic thereforeran on the laterschools. Epistemicauthority bestow authority
4. See id. at 86-120.
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through the entire legal hierarchy. The leading Imams acquired it themselvesandtheirfollowersacquired it derivatively. Elsewhere,sI have argued that two particular juristic functions served both as the axes of legal authorityand as agents of maintaining continuityand mediatingchange. These were the jurisconsult(mufti) andthe author-jurist. (Forthe westernlawyer,it may come as a surprise that the judge, the qadi, did not partakein this authority,but more on this later.) The mufti answeredquestions arising from all walks of Muslimlife, andit was frequently the case thatissues arisingin lawsuits to him first, eitherby the judge himself or by one of the were addressed litigatingparties. Whatthe muftisaid was takenseriouslyby the judge, even when the solicitorof the mufti'sopinionwas one of the disputing parties. The mufti,in other words, knew what the law was, and how and legal methodology worked. Thejudge quajudge,6on interpretation the other hand, did not, since his function was largely limited to the of doctrine.7 application a standard The author-jurist likewise represented referencefor the his that contained the who consulted authoritative doctrine writings qadi of the school.8 The author-jurist usuallystood in the highestranksof the legal profession,not in termsof financialprestigeor politicalpower,but ratheras the most learned. His authority,in the good traditionof the was also primarily founders, epistemic. It was the combinedwork of the mufti and the author-jurist that the law and gave it its legitimacy. Thefatwa represented authorized a in universal stated both the most terms, reflecting legal opinion law in the school as well as legitimizedlegal practice. It authoritative was the general rule that no fatwa was to be considered valid or authoritativeunless it was backed by the judicial practice of the community.9 The mufti's discoursethereforecombinedlegal doctrine
5. Id. at 166-235.
6. Some jurists occupied more than one of these functions. They may have been A distinguished mufti or author-jurist, when simultaneously judges, muftis, and author-jurists. facing a difficultcase in his capacityas a judge,may deal with it himself,but whenhe does, he is not acting solely as a judge. A "judgequajudge"is one who operatesas a qadi whenhe either See Hallaq, cannotor does not (wishto) wearthe otherhatsof muftior author-jurist. supran. 3, at 167-174. 7. This explains why the legal cultureof Islam did not acknowledgeas importantthe collection and publicationof court decisions, for the law was instead to be found in the "published" writingsof the muftiandauthor-jurist. 8. Hallaq,supran. 3, at 136-235. al-Durral-Mukhtar, 9. 'Ala' al-Din al-Haskafi, 8 vols. (n.p. 1979), I, 72-73; Ibn 'Abidin, in Ibn 'Abidin, Majmu'Rasa'il, 2 vols. (n.p. 1970), I, 38; Ibn HajaralSharh al-Manzuma, 4 vols. (1938), IV, 293; and Muhammad Mawahibalal-Hattab, Haytami,al-Fatawaal-Kubra, Jalil, 6 vols. (Tarablus 1969),I, 36.
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hermeneutics and reasoning. It was largely on the mufti's work that the
and practice,therebybringingtogethersocial legal realitywith juristic his material. The law-manuals author-jurist dependedin constructing and extensive compendiaof the law producedby the author-jurist and used by the legal profession as authoritative referencescontainedthe Law of Islam. Thefatwa genre was systematicallyabsorbedby these author(iz)ed works which, in tur, sanctioned these fatwas as was a complex one, and we authoritative.This process of absorption need not deal with it here.'? Whatneeds to be said,however,is thatthe hermeneuticsinvolved in the fatwa and the authored work, whose contents reflected the interactionbetween the socio-legal reality and was responsiblefor the maintenanceof legal discursivejurisprudence, as elementof legal change. The as much the little appreciated authority the maintained of their school and and author-jurist legal tradition mufti in the process defended,improved,and appliedit. At the same time, a piecemealchangethatremainedentirelyfaithfulto they implemented withoutshakingany of its principlesor sensibilities. It was the tradition, a changethat was acutely sensitive to the society, its demands,and its and was ethos. Change,in otherwords, came fromwithinthe tradition, articulated and defended through its indigenous mechanisms and hermeneutical apparatus. the qadi had no real In contrastto the muftiand the author-jurist, role to play in maintaininglegal authorityand the school tradition. Simply put, the qadi qua qadi was not trustedas such an agent. The is repletewith referencesto the precariousand Islamic legal literature dubiousrole of qadis as agentsof corrupted politics. The qadi, until the Ottoman era, was the only legal functionarythat was exclusively appointed,paid and dismissed by governmentagencies. Receiving as a qadi was, for the appointee,often a cause for lament, appointment to associatedwith a strongsense of adversity. It is not an exaggeration was once liable to diminish the an accepted, say that such appointment, personalauthorityof the jurist, and could expose him to suspicion-if and lack of rectitude. And if this is not actualcharges-of corruption the case, it was by virtue of the fact that, for the legally-minded("the and "state"were routinelyassociated Folk of the Shari'a"),government with corruption,coercion and temporal predilection-all the more reasonto curtailtheir powers. If the qadi lackedprestigein legal and it is because of his associationwith political circles, a moral authority,
10. See id.; Hallaq,supra n. 3, at 166-235; and Wael B. Hallaq, 'FromFatwas to Furu':
Growth and Change in Islamic Substantive Law, 1 Islamic L. & Socy. 29 (1994).
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fact which explains why Islamic law and its legal system tried-and largelysucceeded-to keep largely(thoughnot entirely)aloof from the circles of politics for over a millennium. It is accurate to say that Islamic law was a system that operated outside of "state" and influence. And it did so with remarkable and government independence
success.
This unique relationshipbetween the law and the "state"claims on an explanation of long historicalantecedents. But before embarking this relationship, it mustbe brieflynotedthatbracketing the term"state" in any discussionaboutpre-modem Islamicpolity andpoliticalhistoryis eminently necessary. The Islamic "state," like all its pre-modem did not develop the featuresthathave come to exist in the counterparts, nation-state. It did not develop the notion of territorial European based on as the sovereignty conceptof nation,nor did it conceive of a nationalcitizenship. Moreimportantly, it did notfunction as the modem nation-statedid: it remainedlargely aloof from the affairs of society, the central,thoughoften interrupted, taxationremaining point of contact. Whereasthe nation-state came to civil dominate life by means ultimately of a systematicregulationof municipalaffairs and social-familialand economic relations,the Muslim rulerlargely left these domainsto the legal profession,keeping to himself absolutecommandof the military and strictlypolitical matters. Also significantis the glaring fact that political governancein pre-moder Islam was personal,in line with the traditional thatevolved in the Near East throughout forms of leadership the Islamic and pre-Islamic periods. In contrast, the nation-state operatedand still operatesin the mannerof a corporate entitybackedby a trenchant nationalideology and an all-pervading episteme (to borrow from M. Foucault)that go farbeyondthe personalwill-to-powerof the
ruler."1
the natureof the relationship between law and Now, to understand political governancein Islam, it is imperativeto turn to the formative and middleperiodsof this civilization,duringwhich the foundations of this relationship were laid, enabling it to last until the dawn of modernity.12 As earlyas the second/eighth century,it had become clear that a wedge existed between the rulingelite andthe emergingreligiolegal class. This wedge was to make itself evidentwith two concurrent developments,the first of which was the spreadof the new religious
11. See Martin van Creveld, The Rise and Decline of the State 189-335 (Cambridge U. Press
1999). 8 (Cambridge U. Pressforthcoming 2004).

12. The next few paragraphs draw on my work The Origins and Evolution of Islamic Law ch.
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ethic amongthe ranksof the legal specialistswho increasinglyinsisted upon ideal human conduct driven by piety. In fact, it is nearly impossible to distinguishthis ethic from the social category of legal was entirelydefinedby this ethic scholars,since the latter'sconstitution of piety, mild asceticismand knowledge of the law and religion. The second was the increasingpower and institutionalization of the ruling after the first of to elite, who, century Islam, began departfrom the forms of tribal that the earliercaliphshad known, egalitarian leadership and accordingto which they had conductedthemselves. Caliphsnow lived in palaces, wielded coercive powers, and gradually but distancedthemselvesfromthe peoplethey ruled. increasingly The religious impulse-permeated with ethical and idealistic values and inspired and enriched by the proliferationof religious narratives-began to equategovernmentand political power with vice, to the same degree as the pious seeing them as infestedwith corruption were repletewith virtue. This attitudeoriginatedsometimearoundthe beginning of the second/eighth century, and was reflected in the details speakingof appointment multitudeof accountsand biographical to the office of judgeship. As of this time, and continuingfor nearly a the themeof judicial appointment millenniumthereafter, as an adversity inflicted upon the legists who received it became a topos and a narrative. detailof biographical dominating But this profoundsuspicionof associationwith the politicaldid not refusedjudgeships,nor even that mean that the legists predominantly they did not desire them. In fact, by and large, they accepted these appointmentsand many junior legists must have viewed them as an in their careers. On the other hand, the ruling elite accomplishment could not dispense with the jurists, for it had become clear that legal authority, inasmuch as it was epistemically grounded, was largely divorced from political authority. Religious and, by definition,legal knowledge had now become the exclusive domain of the jurist, the private scholar. It is precisely because of this essentially epistemic qualitythatthe rulingelite neededthe legists to fulfill the empire'slegal thatthe legists' loyaltieswere needs, despiteits profoundapprehensions not to the governmentbut to their law and its requirements, which conflictedwith the views of the rulingclass. This disjunction frequently the unshakable betweenthe politicalandthe legal constituted foundation betweenwhatmightroughlybe called herethejudicial of the separation and the political-executivepowers, a separationthat is nowadays deemedessentialin liberaldemocracies.
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Yet, the legists and the rulers needed each other, and thus both learned how to cooperate-and cooperate they did, albeit from a distance. The legists dependedon royal and government the patronage, to their financialwell-being. They single most importantcontributor were often paid handsomesalarieswhen appointedto a judgeship,but they also received generous grantsas private scholars. On the other was in dire need of legitimization, which it found hand,the government in the circlesof the legal profession. It was one of the salientfeaturesof the pre-modemIslamic body-politic that it lacked systematic control of the civil populationsit ruled. The legists over the infrastructures the masses fromwhose servedthe rulersas an effective tool for reaching ranksthey emergedandwhom they servedandrepresented. Hence the religious scholarsin generalandthe legists in particular were often called upon to express the will and aspirationsof those belonging to the non-elite classes. They not only intercededon their behalf at the higher reaches of power, but also representedfor the masses the ideal of piety, rectitude and fine education. Their very profession as Guardiansof Religion, experts in religious law and exemplarsof virtuousMuslim lifestyle made them not only the most of the masses but also the true "heirs of the genuine representatives as one Prophetic reportcame to attest.13 Prophet," The rulersthereforehad no option but to endorseboth the jurists and the religiouslaw whose authority dependedon the humanabilityto exercise eruditehermeneutic. Those who perfectedthis exercise were the jurists, and it was they and their epistemologicaldomainthat set restrictionson the absolute powers of the rulers, whether they were caliphs,provincialgovernorsor theiragents. not only broughtthem easy access The prestigethe juristsacquired to the royal court and to the circles of the political elite,14 but also renderedthem highly influential in governmentpolicy as it affected legal matters,and perhapsin other mattersof state. Almost all major were made at the recommendation of the Chief judicial appointments Justice at the royal court or the assembly of jurists gatheredby the caliph, or both. At times, the jurists' influencein politicalmatterswas immeasurable. Our sources portraythem as men of learning who managedto make themselves equally accessible to both the common folk and high society, includingthe supremerulers. Some of them are
Jami' Bayanal- 'Ilmwa-Fadlihi,I, 34 (n.d.). 13. Abu 'UmarYusuflbn 'Abd al-Barr, 14. Waki',Akhbar al-Qudat,3 vols. III,'158, 174, 247, 265, (n.d.)andpassim;Shamsal-Din al-A'yan,4 vols., II, 321, 322 (n.p. 1997); III, 204, 206, 247, 258, 388, Ibn Khallikan,Wafayat Tarikh 389; andal-Khatib al-Baghdadi, Baghdad,14 vols., IX, 66 (n.p. 1931).
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in the royalcourts,to the as havingbeen inordinately influential reported extent of "dominating" the caliphs. In the OttomanEmpire,whose life spanneda good five centuries,this fundamental dependenceon the legal professionled to the creationof the office of Shaykhal-Islam,the chief mufti, who occupied the second highest rank of governanceafter the acted as a brakeon thatof the latter. caliphhimself andwhose authority In the wordsof a distinguished the Shaykhal-Islam Ottomanist, of the sultan.He was regarded actedas thereligiousadvisor as the in the wholereligiousorder: it was a sign most exaltedpersonage andhis powerto curbandrebukethe of his freedomof judgment of the sultan'sdivanof holdersof powerthathe was nota member officials.'5 high That the caliphs and sultansstrove to acquirelegitimacythrough obvious. But this religiousandjuristic channelsis thereforeabundantly cannot mask the fact that there always remained a point of friction between worldly, secular power and religious law. This relationship between the two was constantlynegotiated,and it was never devoid of sporadicchallengesmountedby political forces againstthe law and its representatives.This was most obvious at the provincialandperipheral levels, but there was a marked decrease in the frequency of such nearerthe centerof politicalpower. For the challengesas they occurred sultan or perceived himself, and was generally perceived, as caliph of justice accordingto the holy law; and upholdingthe highest standards with this moral responsibility, he generally conducted himself in with these expectations. accordance The overwhelmingbody of evidenceat our disposalcompels us to conclude that, as a rule, the caliphs, sultans and their provincial upheldcourtdecisionsandnormallydid not intervenein representatives the judicial process.16 However, when caliphs or their subordinates became involved in the judicialprocess-however rarely-it was often the case thatthey did so within the standard, acceptablelegal channels. if for no other reason than in with the law, complied They generally
A Historyof the ArabPeoples 224 (BelknapPressHarv.U. Press 15. AlbertHabibHourani, 1991). 16. This is borneout by the fact thatthe sourcesrecordthe unusual,those eventsworthyof and historianswere not interestedin note, because they stood out from the rest. Biographers routineof thejudiciary,andif we know somethingaboutthis routine,it the day-to-day recording is becauseit often creepsinto those relativelyfew accountsof an unusualnature. Thus,whatever to be recorded in the historical on thejudiciaryhappened encroachment caliphalor governmental out of cases and,therefore, annalsof Islam,they were likely to havebeen exceptional statistically due to the fact of-cases thatwent unnoticed of thousands to the-probably hundreds proportion course. thatthey were"usualcases"in whichlaw andthejudicialprocesstook theirnormal
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orderto maintain theirpoliticallegitimacy. Yet, it appears reasonable to assume that their compliance stemmed from their acceptance of force in both society andempire, religiouslaw as the supreme regulatory coupled with the conviction that they were in no way rivals of the religious legal profession. Instances of judges deciding in favor of personswho litigatedagainstcaliphs and governorsare well-attestedin the literature, with the latteracceptingand submitting to such verdicts.17 The relativeinfrequency of the rulers'encroachment on the legal sphere appearsto follow a particular pattern,namely, that such infringements were usually associatedwith cases in which the rulers' own interests were involved. Although this in no way means that encroachment occurred whenever such interests were present, it does suggest that wheneverrulersstakedtheirinterestin the judicialprocess,they had to their ends weigh their overallgains and losses. To have accomplished throughcoercionwould have meantthat theirlegitimacyhad failed the test. On the otherhand,total compliancewith the law at times meant thattheirquestfor material gain or will-to-powerwould be frustrated.It was this equationthatthey attempted to work out and balancecarefully, at times succeedingand at others failing. Pre-moder Islamic history to maintainan equationin favor suggests that rulersgenerallypreferred of compliancewith the religious law, since compliancewas the means by which the ruling elite could garer the sympathies,or at least tacit of the populaceandits legal representatives. To say thata rule approval, of law prevailed in pre-modem Islamic societies, polities, and civilizationsis merelyto statethe obvious. Enterthe modem legal reformwhose most significantfeaturewas the transformation thattook place in the command of the law, wherethe nation-stateassumeda new role. Whereasthe traditional ruler,as we considered himself to the law and left the saw, subject judicial and and functions to legislative authority the legal profession,the modem nation-statereversedthis principle,thereby assumingthe authorityto dictate what the law is or is not. The ruler's traditionalrole was and dismissal of judges, coupled generallylimited to the appointment with the occasionalenforcement of the qadi's decisions. Interference in the legislative processes,in the determination of legal doctrine,and in the overallinternal dynamicsof the law was nearly,if not totally,absent. In this context, one must not exaggeratethe importanceof the
Ottoman siyasa shar'iyya and the qanunnames (which were no more
17. See e.g. IbnKhallikan,Wafayat, III, 392; and Ibn 'Abd Rabbih,al- 'Iqdal-Farid,ed. M. al-'Aryan,8 vols. I, 38-48 (n.p. 1953).
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than episodic regulationspromulgated by the Empire)that this siyasa generated. It has been the argumentof some historiansand political scientiststhatcentralization-a necessaryconditionof the nation-stateand governmentlegislation have begun early in Ottomantimes, thus ushering in the transformationsthat led to government-controlled, codified legal systems.18 This argument,however, is largely, if not entirely,unfounded,precisely because the Muslim "state,"at its most active period of judicial interference,never managed to effect any control over the law as a reasoneddoctrineapplied to a sociological context. The state'srole, in otherwords,remained-until the reformsof legal significantlymarginalboth as a legislator and as determinant With the onset of the the modem nationreforms,however, authority. to itself the statusof a legislatorand,at the same time, a state arrogated has position above the law. Legislative interference,often arbitrary, since become a centralfeatureof modem reform,and is itself evidence of the dramatic shiftin the balanceof legal power.'9 A direct effect of this shift was the adoptionby the new nationstate of the model of codification,therebyalteringthe natureof the law. Codification is not an inherentlyneutral form of law, nor is it an innocenttool of legal practice,devoid of politicalor othergoals. It is a choice in the exercise of politicalandlegal power,a meansby deliberate is placed upon the interpretive which a consciousrestriction freedomof and In the Islamic the context, lawyers.20 jurists,judges adoptionof codification has an added significance since it represents a highly efficacious modusoperandithroughwhich the law was refashionedin the traditional structured means ways. Among otherthings,it precluded of the law fromever cominginto play. An essentialtool, indeed a vital component,of the nation-stateis centralization. In additionto codification,which could not have been achieved without this tool, centralizingmechanisms were carefully harnessedto confiscatethe realm of law in favor of state control. As early as 1826, for example, the OttomanSultan MahmudII and his advisorscreatedthe so-called Ministryof ImperialPious Endowments
18. The implication being that the modernlegal reformsrepresent indigenousdevelopments of colonialdomination.Thisargument andareindependent is advanced typicallyby bothMuslim the formerseeking to show the inner capabilityof Islam to apologistsand some Orientalists; as Europe was able to do, while the latterto exonerate achieve"progress" Europeof its colonialist liabilities. This Orientalistargumentmay also derive from the erroneousassumptionthat is a universal thatis as muchEastern in all its features, as Western. phenomenon modernity, 19. See Wael Hallaq,Can the Shari'a be Restored?,in IslamicLaw and the Challengesof 21-53 (YvonneY. Haddad ed., WalnutCreek2004). Modernity 20. PaulKoschaker, Recht183 (n.p. 1966). Europaunddas romische
256
[Vol. XIX
which brought the administrationof the Empire's major waqfs All majorendowments (charitable trusts)undercentraladministration.21 alongwith theirrevenuesand assets-that supported legal educationand were supervisedfor centuriesby the legal profession in the Empire's various regions-came under Istanbul's direct supervision. This of resources ushered in a new era during which the commandeering jurists graduallylost control over their own source of power, making them heavily dependenton state allocations which diminished in a steadyand systematicmanner. But this was not all. The chipping away of the powers of the religious elite was acceleratedby the creationof alternativeelites that beganto be formedduringthe firsthalf of the nineteenth century. Under Mahmud II, there was already a proliferationof technical schools of the religiouscolleges, schools thaterodedthe monopoly independent traditionally enjoyedby the religiousinstitutionsover the legal system. As if this were not enough, both the Ottomansultans and the local Egyptianrulerscreateda new body of legal professionalswho began to legal elite. Withthe adoption-indeed, coercive displacethe traditional enforcement22-of Western-stylehierarchicalcourts and law schools, these new elites were easily incorporatedinto the emerging legal structures,while, at the same time, the traditionallegal profession, andweak, founditself unequipped to deal with this new nearlybankrupt reality. The new courtsoperatedon the basis of codes, and the lawyers who staffed them had little, if any, knowledge of the workings of judiciallyor otherwise. On the other religiouslaw, whetherdoctrinally, to the hand, while the foreign legal elements were incomprehensible traditionallegal hierarchy,their madrasas, which depended almost exclusivelyon the dwindlingwaqfrevenues,were systematically pushed aside, and later totally displaced by modem, university-basedlaw faculties. The traditionallegal specialists lost not only their judicial and courtofficials, but also their offices as judges, legal administrators and educational functions,that is, the backboneof their teachingposts a the coup de grace, as existence profession. This loss constituted very for not only did it rob them of theircareersbut also of theirprocreative theirpedigree. The faculties:they were no longer allowedto reproduce ruin of the madrasa was the ruin of Islamic law, for its compass of
MedreseSystem Priorto the 21. MadelineC. Zilfi, "TheIlmiyeRegistersand the Ottoman et sociale de I'Empireottoman309-327 (n.p. Contribution ia 'histoireeconomique Tanzimat," 1993). Courtsin Egyptand the Gulf 22. Cf. NathanJ. Brown,TheRule of Law in the Arab World: U. Press1997). 26-29, 33-40 (Cambridge
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activitiesepitomizedall thathadmade Islamiclaw whatit was. Thus, the demise of the Shari'a was assured by the strategy of "demolish and replace:" The weakening and final collapse of educationalwaqfs, the madrasa,positive Islamic law and the Shari'a court was collaterally,diachronicallyand causally conjoinedwith the of state finance (or, more accurately,finance throughthe introduction controllingagency of the state), Western-stylelaw schools, European courtsystem. codes anda European of the traditional Whathas remained systemin the moder codes is than a veneer. no more Penal indeed law, land law, commercial little, and much else have been totally law, bankruptcy, law, torts,procedural replaced by their Europeancounterparts,and supplemented,in due course, by several other codes and regulations, such as the law of copyrightlaw, patent law and maritimelaw. Traditional corporations, doctrinesare still to be found in the law of personal status,but these have been uprootedfrom theirindigenouscontext, a fact bearingmuch significance. As is well-known,one of the modernists'favoritetools is the methodof takhayyur, namely,picking and choosinglegal rules from a variety of sources.23Thus, the principlesand rules of the marriage contract,for instance,may draw on more than one Sunni legal school, expediencybeing the sole rationaleand motive, with the result that an arbitraryamalgamationof doctrines make up much of reformist "methodology." For modernlegislators in Sunni countrieshave even resortedto Shi'i law in order to supplementtheir civil codes where Sunni law was deemed insufficient for their needs.24 And they have been daringnot only in terms of the sources on which they draw, but doctrine: also in the mannerin whichthey drew on traditional they often to a several elements known as in a pertaining combined, talfiq, process of the one than more from issue source,irrespective positive legal single principles, reasoning and intellectual integrity that gave rise to the in that it does not rulings in the first place. This approachis arbitrary take into serious account-as it ought to-the subtle and intricate connectionthatexists betweenthe social fabricand the law as a system on the of conflict resolutionand social control. These considerations, in the minds of the traditional otherhand,were ever-present jurists and a fact thatexplainsthe constancyand stability the systemtheyproduced, of classicalIslamiclaw overthe long courseof twelve centuries.
Sir James Norman Dalrymple Anderson, Law Reform in the Muslim World 34-85
23.
(AthlonePress 1976).
24. Id.
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of the command The point I wish to make is thatthe transposition of the law from the hands of the faqihs (the traditional legal professionals) to those of the state represents the most important phenomenonof modem legal reform,one that signified simultaneously the eternalloss of epistemic authorityand the dawningof the muchof the state. The emergenceof the stateas carrierof abhorred authority legal authority(or, strictly speaking, legal power) is seen as doubly in Islamic countriesnot only because the state appropriated repugnant law fromthe community-rooted groupsof the religiousjurists,but also because it had shown itself, for over a millennium,to be an entity severely lacking in religiosity,piety and rectitude. If Islamic law had to Muslimsthe best of "din"(religion)then the state stood represented of for the worst of"dunya"(worldlyexistence). Withthe appropriation law in the wake of the reforms,the statehas sunkinto even lower levels of repugnancy. It committeda third felony: it substitutedGod's law with a foreignlaw; and to make things much worse, a fourthfelony, it chose none otherthanthe law of the colonizersto do so. If modern Muslims are demandinga returnto the Shari'a, it is that all these violationshave wreakedhavoc because of theirperception with their lives. The modern "Muslim"nation-state(however many nor is it has not commanded, contradictions may lie in this phraseology) its Muslim masses to of the the to will, conformity likely command, much less their respect. Put differently,the moder "Muslim"nation state failed to gain authorityover its subjects, for authority,unlike power, does not necessarilydepend on coercion. When the traditional of they did so by virtueof the erudition authority, legal schools acquired theirjuristswho provedthemselvesnot only devotedto the best interests of the umma(whom they servedvery well) but also the most competent human agency to discover God's law. Their erudition was their authority, and erudition implied, indeed entailed, a hermeneutical engagement with the divine texts without which no law could be God andHis jurists' conceived. The state,on the otherhand,abandoned of law, and could find no other tools to replaceit thanthe instruments and coercion power. imperial worldly

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Juristic Authority vs. State Power: The Legal Crises of Modern Islam Author(s): Wael B.

JURISTICAUTHORITYVS. STATE POWER: THE LEGALCRISES OF MODERNISLAM*

JOURNALOF LAW& RELIGION

VS.STATEPOWER JURISTIC AUTHORITY

JOURNALOF LAW& RELIGION

JURISTIC A UTHORITY VS.STA TEPOWER

JOURNALOF LAW& RELIGION

JOURNALOF LAW& RELIGION

1999). 8 (Cambridge U. Pressforthcoming 2004).

JURISTIC AUTHORITY VS.STATE POWER

JOURNALOF LAW & RELIGION

VS.STATE JURISTICAUTHORITY POWER

JOURNALOF LAW& RELIGION

JURISTIC AUTHORITY VS.STATE POWER

JOURNALOF LAW& RELIGION

JURISTIC AUTHORITY VS.STATE POWER

JOURNALOF LAW& RELIGION

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