|The practical application of Shariah in most Muslim countries (as here, in this Egyptian courtroom) is in matters of family law.
From Shariah to Despotism
But if Shariah is popular among many Muslims in large part because of its historical association with the rule of law, can it actually do the same work today? Here there is reason for caution and skepticism. The problem is that the traditional Islamic constitution rested on a balance of powers between a ruler subject to law and a class of scholars who interpreted and administered that law. The governments of most contemporary majority-Muslim states, however, have lost these features. Rulers govern as if they were above the law, not subject to it, and the scholars who once wielded so much influence are much reduced in status. If they have judicial posts at all, it is usually as judges in the family-law courts.
In only two important instances do scholars today exercise real power, and in both cases we can see a deviation from their traditional role. The first is Iran, where Ayatollah Khomeini, himself a distinguished scholar, assumed executive power and became supreme leader after the 1979 revolution. The result of this configuration, unique in the history of the Islamic world, is that the scholarly ruler had no counterbalance and so became as unjust as any secular ruler with no check on his authority. The other is Saudi Arabia, where the scholars retain a certain degree of power. The unfortunate outcome is that they can slow any government initiative for reform, however minor, but cannot do much to keep the government responsive to its citizens. The oil-rich state does not need to obtain tax revenues from its citizens to operate
- and thus has little reason to keep their interests in mind.
How the scholars lost their exalted status as keepers of the law is a complex story, but it can be summed up in the adage that partial reforms are sometimes worse than none at all. In the early 19th century, the Ottoman empire responded to military setbacks with an internal reform movement. The most important reform was the attempt to codify Shariah. This Westernizing process, foreign to the Islamic legal tradition, sought to transform Shariah from a body of doctrines and principles to be discovered by the human efforts of the scholars into a set of rules that could be looked up in a book.
Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority. Codification took from the scholars their all-important claim to have the final say over the content of the law and transferred that power to the state. To placate the scholars, the government kept the Shariah courts running but restricted them to handling family-law matters. This strategy paralleled the British colonial approach of allowing religious courts to handle matters of personal status. Today, in countries as far apart as Kenya and Pakistan, Shariah courts still administer family law
- a small subset of their original historical jurisdiction.
Codification signaled the death knell for the scholarly class, but it did not destroy the balance of powers on its own. Promulgated in 1876, the Ottoman constitution created a legislature composed of two lawmaking bodies
- one elected, one appointed by the sultan. This amounted to the first democratic institution in the Muslim world; had it established itself, it might have popularized the notion that the people represent the ultimate source of legal authority. Then the legislature could have replaced the scholars as the institutional balance to the executive.
But that was not to be. Less than a year after the legislature first met, Sultan Abdulhamid II suspended its operation
- and for good measure, he suspended the constitution the following year. Yet the sultan did not restore the scholars to the position they once occupied. With the scholars out of the way and no legislature to replace them, the sultan found himself in the position of near-absolute ruler. This arrangement set the pattern for government in the Muslim world after the Ottoman empire fell. Law became a tool of the ruler, not an authority over him. What followed, perhaps unsurprisingly, was dictatorship and other forms of executive dominance
- the state of affairs confronted by the Islamists who seek to restore Shariah.
A Democratic Shariah?
The Islamists today, partly out of realism, partly because they are rarely scholars themselves, seem to have little interest in restoring the scholars to their old role as the constitutional balance to the executive. The Islamist movement, like other modern ideologies, seeks to capture the existing state and then transform society through the tools of modern government. Its vision for bringing Shariah to bear therefore incorporates two common features of modern government: the legislature and the constitution.
The mainstream Sunni Islamist position, found, for example, in the electoral platforms of the Muslim Brotherhood in Egypt and the Justice and Development Party in Morocco, is that an elected legislature should draft and pass laws that are consistent with the spirit of Islamic law. On questions where Islamic law does not provide clear direction, the democratically chosen legislature is supposed to use its discretion to adopt laws infused by Islamic values.
The result is a profound change in the theoretical structure underlying Islamic law: Shariah is democratized in that its care is given to a popularly elected legislature. In Iraq, for example, where the constitution declares Shariah to be
"the source of law," it is in principle up to the National Assembly to pass laws that reflect its spirit.
In case the assembly gets it wrong, however, the Islamists often recommend the judicial review of legislative actions to guarantee that they do not violate Islamic law or values. What is sometimes called a
"repugnancy clause," mandating that a judicial body overturn laws repugnant to Islam, has made its way into several recent constitutions that seek to reconcile Islam and democracy. It may be found, for example, in the Afghan Constitution of 2004 and the Iraqi Constitution of 2005. (I had a small role advising the Iraqi drafters.) Islamic judicial review transforms the highest judicial body of the state into a guarantor of conformity with Islamic law. The high court can then use this power to push for a conservative vision of Islamic law, as in Afghanistan, or for a more moderate version, as in Pakistan.
Islamic judicial review puts the court in a position resembling the one that scholars once occupied. Like the scholars, the judges of the reviewing court present their actions as interpretations of Islamic law. But of course the judges engaged in Islamic judicial review are not the scholars but ordinary judges (as in Iraq) or a mix of judges and scholars (as in Afghanistan). In contrast to the traditional arrangement, the
judges' authority comes not from Shariah itself but from a written constitution that gives them the power of judicial review.
The modern incarnation of Shariah is nostalgic in its invocation of the rule of law but forward-looking in how it seeks to bring this result about. What the Islamists generally do not acknowledge, though, is that such institutions on their own cannot deliver the rule of law. The executive authority also has to develop a commitment to obeying legal and constitutional judgments. That will take real-world incentives, not just a warm feeling for the values associated with Shariah.
How that happens - how an executive administration accustomed to overweening power can be given incentives to subordinate itself to the rule of law
- is one of the great mysteries of constitutional development worldwide. Total revolution has an extremely bad track record in recent decades, at least in majority-Muslim states. The revolution that replaced the shah in Iran created an oppressively top-heavy constitutional structure. And the equally revolutionary dreams some entertained for Iraq
- dreams of a liberal secular state or of a functioning Islamic democracy - still seem far from fruition.
Gradual change therefore increasingly looks like the best of some bad options. And most of
today's political Islamists - the ones running for office in Morocco or Jordan or Egypt and even Iraq
- are gradualists. They wish to adapt existing political institutions by infusing them with Islamic values and some modicum of Islamic law. Of course, such parties are also generally hostile to the United States, at least where we have worked against their interests. (Iraq is an obvious exception
- many Shiite Islamists there are our close allies.) But this is a separate question from whether they can become a force for promoting the rule of law. It is possible to imagine the electoral success of Islamist parties putting pressure on executives to satisfy the demand for law-based government embodied in Koranic law. This might bring about a transformation of the judiciary, in which judges would come to think of themselves as agents of the law rather than as agents of the state.
Something of the sort may slowly be happening in Turkey. The Islamists there are much more liberal than anywhere else in the Muslim world; they do not even advocate the adoption of Shariah (a position that would get their government closed down by the staunchly secular military). Yet their central focus is the rule of law and the expansion of basic rights against the Turkish tradition of state-centered secularism. The courts are under increasing pressure to go along with that vision.
Can Shariah provide the necessary resources for such a rethinking of the judicial role? In its essence, Shariah aspires to be a law that applies equally to every human, great or small, ruler or ruled. No one is above it, and everyone at all times is bound by it. But the history of Shariah also shows that the ideals of the rule of law cannot be implemented in a vacuum. For that, a state needs actually effective institutions, which must be reinforced by regular practice and by the recognition of actors within the system that they have more to gain by remaining faithful to its dictates than by deviating from them.
The odds of success in the endeavor to deliver the rule of law are never high. Nothing is harder than creating new institutions with the capacity to balance executive dominance
- except perhaps avoiding the temptation to overreach once in power. In Iran, the Islamists have discredited their faith among many ordinary people, and a similar process may be under way in Iraq. Still, with all its risks and dangers, the
Islamists' aspiration to renew old ideas of the rule of law while coming to terms with contemporary circumstances is bold and noble
- and may represent a path to just and legitimate government in much of the Muslim world.
Noah Feldman, a contributing writer for the magazine, is a law professor at Harvard University and an adjunct senior fellow at the Council on Foreign Relations. This essay is adapted from his book
"The Fall and Rise of the Islamic State," which will be published later this month.
New York Times (2008)
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