|The practical application of Shariah in most Muslim countries (as here, in this Egyptian courtroom) is in matters of family law.
This fourfold combination - the Koran, the path of the prophet as captured in the collections of reports, analogical reasoning and consensus
- amounted to a 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 these factors and not others formed the sources of the law? The first four caliphs, who knew the prophet personally, might have been able to make this claim for themselves. But after them, the caliphs were faced with a growing group of specialists who asserted that they, collectively, could ascertain the law from the available sources. This self-appointed group came to be known as the scholars
- and over the course of a few generations, they got the caliphs to acknowledge them as the guardians of the law. By interpreting a law that originated with God, they gained control over the legal system as it actually existed. That made them, and not the caliphs, into
"the heirs of the prophets."
Among the Sunnis, this model took effect very early and persisted until modern times. For the Shiites, who believe that the succession of power followed the
prophet's lineage, the prophet had several successors who claimed extraordinary divine authority. Once they were gone, however, the Shiite scholars came to occupy a role not unlike that of their Sunni counterparts.
Under the constitutional theory that the scholars developed to explain the division of labor in the Islamic state, the caliph had paramount responsibility to fulfill the divine injunction to
"command the right and prohibit the wrong." But this was not a task he could accomplish on his own. It required him to delegate responsibility to scholarly judges, who would apply
God's law as they interpreted it. The caliph could promote or fire them as he wished, but he could not dictate legal results: judicial authority came from the caliph, but the law came from the scholars.
The caliphs - and eventually the sultans who came to rule once the caliphate lost most of its worldly influence
- still had plenty of power. They handled foreign affairs more or less at their discretion. And they could also issue what were effectively administrative regulations
- provided these regulations did not contradict what the scholars said Shariah required. The regulations addressed areas where Shariah was silent. They also enabled the state to regulate social conduct without having to put every case before the courts, where convictions would often be impossible to obtain because of the strict standards of proof required for punishment. As a result of these regulations, many legal matters (perhaps most) fell outside the rules given specifically by Shariah.
The upshot is that the system of Islamic law as it came to exist allowed a great deal of leeway. That is why
today's advocates of Shariah as the source of law are not actually recommending the adoption of a comprehensive legal code derived from or dictated by Shariah
- because nothing so comprehensive has ever existed in Islamic history. To the Islamist politicians who advocate it or for the public that supports it, Shariah generally means something else. It means establishing a legal system in which
God's law sets the ground rules, authorizing and validating everyday laws passed by an elected legislature. In other words, for them, Shariah is expected to function as something like a modern constitution.
The Rights of Humans and the Rights of God
So in contemporary Islamic politics, the call for Shariah does not only or primarily mean mandating the veiling of women or the use of corporal punishment
- it has an essential constitutional dimension as well. But what is the particular appeal of placing Shariah above ordinary law?
The answer lies in a little-remarked feature of traditional Islamic government: that a state under Shariah was, for more than a thousand years, subject to a version of the rule of law. And as a rule-of-law government, the traditional Islamic state had an advantage that has been lost in the dictatorships and autocratic monarchies that have governed so much of the Muslim world for the last century. Islamic government was legitimate, in the dual sense that it generally respected the individual legal rights of its subjects and was seen by them as doing so. These individual legal rights, known as
"the rights of humans" (in contrast to "the rights of God" to such things as ritual obedience), included basic entitlements to life, property and legal process
- the protections from arbitrary government oppression sought by people all over the world for centuries.
Of course, merely declaring the ruler subject to the law was not enough on its own; the ruler actually had to follow the law. For that, he needed incentives. And as it happened, the system of government gave him a big one, in the form of a balance of power with the scholars. The ruler might be able to use pressure once in a while to get the results he wanted in particular cases. But because the scholars were in charge of the law, and he was not, the ruler could pervert the course of justice only at the high cost of being seen to violate
God's law - thereby undermining the very basis of his rule.
In practice, the scholars' leverage to demand respect for the law came from the fact that the caliphate was not hereditary as of right. That afforded the scholars major influence at the transitional moments when a caliph was being chosen or challenged. On taking office, a new ruler
- even one designated by his dead predecessor - had to fend off competing claimants. The first thing he would need was affirmation of the legitimacy of his assumption of power. The scholars were prepared to offer just that, in exchange for the
ruler's promise to follow the law.
Once in office, rulers faced the inevitable threat of invasion or a palace coup. The caliph would need the scholars to declare a religious obligation to protect the state in a defensive jihad. Having the scholars on his side in times of crisis was a tremendous asset for the ruler who could be said to follow the law. Even if the ruler was not law-abiding, the scholars still did not spontaneously declare a sitting caliph disqualified. This would have been foolish, especially in view of the fact that the scholars had no armies at their disposal and the sitting caliph did. But their silence could easily be interpreted as an invitation for a challenger to step forward and be validated.
The scholars' insistence that the ruler obey Shariah was motivated largely by their belief that it was
God's will. But it was God's will as they interpreted it. As a confident, self-defined elite that controlled and administered the law according to well-settled rules, the scholars were agents of stability and predictability
- crucial in societies where the transition from one ruler to the next could be disorderly and even violent. And by controlling the law, the scholars could limit the ability of the executive to expropriate the property of private citizens. This, in turn, induced the executive to rely on lawful taxation to raise revenues, which itself forced the rulers to be responsive to their
subjects' concerns. The scholars and their law were thus absolutely essential to the tremendous success that Islamic society enjoyed from its inception into the 19th century. Without Shariah, there would have been no Haroun al-Rashid in Baghdad, no golden age of Muslim Spain, no reign of Suleiman the Magnificent in Istanbul.
For generations, Western students of the traditional Islamic constitution have assumed that the scholars could offer no meaningful check on the ruler. As one historian has recently put it, although Shariah functioned as a constitution,
"the constitution was not enforceable," because neither scholars nor subjects could
"compel their ruler to observe the law in the exercise of government." But almost no constitution anywhere in the world enables judges or nongovernmental actors to
"compel" the obedience of an executive who controls the means of force. The Supreme Court of the United States has no army behind it. Institutions that lack the power of the sword must use more subtle means to constrain executives. Like the American constitutional balance of powers, the traditional Islamic balance was maintained by words and ideas, and not just by forcible compulsion.
So today's Muslims are not being completely fanciful when they act and speak as though Shariah can structure a constitutional state subject to the rule of law. One big reason that Islamist political parties do so well running on a Shariah platform is that their constituents recognize that Shariah once augured a balanced state in which legal rights were respected.
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