Shariah: Beyond Theocracy and Secularism

March 19, 2009 Admin Why Do 80% of Muslims Still Want the Sharia? Beyond Theocracy and Secularism The force and popularity of Shariah as an ideal in the Muslim world today is remarkably at odds with the fear and suspicion with which it is greeted in the West. According to 2006 Gallup polls, for instance, about 80% of Muslims wish the Shariah were either the only or a major sour ce of their law.[1] To many, this gulf of perceptions is the single greatest reason for the perceived clash between Islam and the West-a gulf that often places Western sympathies and policies at odds with the forces of democracy in the Muslim world. The recently published The Fall and Rise of the Islamic State by Noah Feldman, professor of constitutional law at Harvard Law School, argues that the union of state and religion in Muslim societies, as demanded by the vast majority of Muslims today, should not be feared or impeded by the West.[2] This is because, when properly understood and soberly applied, the Shariah has not historically entailed the theocracy or religious tyranny that the union of church and state has produced in the West. To the contrary, Feldman argues, Shariah provided a rule of law in medieval Muslim societies that guarded the populace from the tyranny of a military state. He writes: The Islamic state is pre-eminently a Shariah state, defined by its commitment to a vision of legal order. The state historically organized under what I shall call the classical or the traditional Islamic constitution-a constitution that, like the English constitution, was unwritten and everevolving-was a legal state in both meanings of the term. The system was justified by law, and the system administered basic government through law.[3] This classical Islamic constitution was disrupted by the decline of the Ottoman Empire and its ill-conceived attempts at reform in the 19th and early 20th centuries. The regrettable state of the Muslim world today is a fall-out of that attempt and the colonization that followed it.[4] A careful examination of the history of Islamic political thought shows that Feldman is essentially right about the role of Shariah in Islamic history. In fact, privileging the convictions and wishes of the majority of Muslims over imposed secularism and dictatorships should be the natural impulse of the American people, who hold dear both democracy and religion. Instead of the horrific memories of religious persecution entrenched in the Western memory, Muslims recall a golden past when the Shariah played a more significant role in their collective lives. Shariah indeed saved the Muslim societies from the tyranny of the state. I endorse Feldmans suggestion to see the Islamic constitution as containing the balance of power so necessary for a functioning, sustainable legal state, and to emphasize not why it failed, as all forms of government eventually must, but why it succeeded so spectacularly for as long as it did.[5] Nevertheless, I must suggest a correction to each of Feldmans propositions. First, the relationship between Shariah and politics has been a lot more complex and colorful-and hence

instructive-than the unified image of a single classical Islamic constitution that Feldmans argument rests upon. There existed at least two, not one, major visions of the relationship between politics and Shariah within Sunni Islam throughout medieval Islamic history. Secondly, the full potential of the inherently Community-centered and anti-elitist message of the Quran and the Prophet Muhammads teachings, may the peace and blessings of God be upon him, were not actualized in medieval Islamic societies. Thus, the classical Islamic constitutional balance that Feldman refers to was often terribly lopsided. This imbalance explains the socio-political weakness and instability of medieval Muslim polities. Modern intellectuals, Muslim as well as non-Muslim, who are concerned with the future of Muslim polities, will do well to pay close attention to the richness and diversity of the Islamic tradition. The rest of this article will be devoted to substantiating these suggestions and considering their implications. Medieval Muslim polities, although far from theocratic or totalitarian tyrannies, were not politically successful either and therefore ought not to be a model for future Muslim states. The historians of the medieval Middle East can point out undeniable indicators of the failure of the military patronage states (from the Seljuqs to the Mamluks). For example, these states neither legitimately represented the Muslim community nor offered a sufficient measure of order, peace, or stability. These are not anachronistic projections emerging from our modern sensibilities; they are confirmed by the sense of crisis, decline, despair, and resignation in the writings of medieval Muslim intellectuals.[6] Yet, in the Sharia there exist mechanisms that can produce a balanced Islamic constitutional state. And this is what millions of Muslims in Muslim societies aspire to today. The rule of law and legal pluralism which characterized medieval Sunni Islam constitute only one piece, albeit an indispensable one, of the properly imagined vision of religion and state in the . Still, after the early Islamic caliphate, something crucial in the equation was lost, namely a legitimate political authority and a clear political sphere. Today, both are necessary components of a stable state. Most modern scholars and historians of Islam agree that, while the consciences and ideals of individual Muslims remain deeply connected to the Sharia, the contemporary Muslim is quite removed from these ideals, both on a social and political level. Most of those who adhere to the Sharia on an individual, personal basis are unfamiliar with the complexities involved in adopting it as a political ideal. The first reason for this distance from the Sharia is inherent to the Sharia itself: by its definition, it is the perfect, divinely-ordained way of life for humanity. As such, it is only divine as an ideal; as soon as it is actualized into a practical system of social relations, it becomes human. This is because such actualization of revelation requires human interpretation. Historically, the Islamic tradition has been keenly aware of this distinction. For example, it is well known that the primary sources of the Sharia are the divine scripture (Quran) and its elaboration in prophetic teachings (Hadith/Sunna). The actualized law, however, is derived from those two sources by means of hermeneutic tools. This derived law is called fiqh-literally, human understanding. Human understanding, it can be argued, is as much at work in living by the Sharia as it is in living by the American Constitution and the founding ideals, for example. The essential difference, of course, is that for Muslims, those ideals are given by God.

The second reason for the modern Muslims distance from the Sharia is historically based. Most Muslim nation-states today are the creation of Western colonial powers that occupied Muslim lands for one to two centuries and, in the process, destroyed or transformed the traditional Muslim societies of the pre-colonial era. In the wake of decolonization, the Muslim world found itself divided into newly created nation-states. All power fell into the hands of a Westernized, secular, military elite who directed several secular nationalist experiments in these Muslim states. As these experiments failed, however, reformist, nostalgic, and salvationist calls for a return to the Islamic ideal have regained rigor during the last few decades. These diverse movements consider Sharia the most significant manifestation of Islamic life and thus, demand the implementation of Sharia law. The major problem in these newly formed Muslim nation-states has been the lack of a healthy political sphere whose legitimacy is grounded in the ethical system of society. There is a deepseated mistrust of government and politics in these societies. This mistrust, which has made it difficult for Muslim societies to recover from the colonial onslaught, is a result of a longstanding cultural memory. Since the golden age of the Prophet and the early caliphate and a few rare historical exceptions, the Muslim state has not legitimately represented the Muslim Community, and hence, has not been grounded in the . This mutual implication of the Community and the Sharia does not seem self-evident. But, in the political history of Sunni Islam, it has been perhaps the best-kept secret. It is what explains the failure of the medieval Islamic polities and the lopsidedness of the classical constitution. In premodern Islam, the state was often disconnected from the Community and the Sharia, but that did not prevent the Sharia from governing peoples lives in important ways. By virtue of this disconnect from Community and Sharia, state politics remained theologically illegitimate. But when governing bodies were small-in the sense that they did not interfere with religious law, peoples private lives, education, spirituality, etc.-they mattered little. The Sharia remained significant and was actualized through traditional social structures that were not formally connected to the state. European colonization destroyed these traditional structures, however, and created all-encompassing polities in the form of nation-states. It is for this reason, in the wake of the all-powerful nation-state and fragmented societies, that the question of the political legitimacy of the state, has now come to the fore with a vengeance. There are two possible solutions to this problem. First, one could go back to the medieval model: let the Sharia be administered by apolitical social structures-such as the body of Islamic scholars (ulama), the spiritual brotherhoods, private legal guilds, and schools-while at the same time, reduce the nation-state to the minimal functions of defense and tax-collection. It is in such a circumstance that medieval Muslim jurisprudence was developed and functioned best. Despite their romantic appeal, however, such societies came at a price: states and their societies could not thrive without governmental political legitimacy. Hence, the governments in most medieval Muslim societies were unrepresentative, disconnected from any basis of legitimacy in the Community, unaccountable to the people, violent, and unstable. Anyone who reads the chronicles of the Mamluk period, for instance, cannot escape the impression that for long stretches of time, life was indeed nasty, brutish, and short. And the ulama too were often dragged into it, either as heroic victims who spoke truth to power or as partisans of a losing faction.[7] In brief, while these states were not theocratic tyrannies, and the Sharia did provide a

defense against and tame the military rulers, the romantic constitutional balance that Feldman suggests, and that I believe the proper Islamic model could furnish, did not exist in classical Muslim societies. If the medieval societies cannot provide for a viable modern-day application of the Sharia, what can? Why do 80% of Muslims still want Sharia? Do they really want the medieval constitution that Feldman speaks of, or do they aspire to something else? To answer this question, we will turn to a brief recap of the relevant history, before turning to the second possible solution to the governmental problems plaguing Muslim societies. Modern Scholarly Explanations of Islamic Political History: A Critical Review Scholars have long noted that the structure of the Shariah, particularly in Sunni Islam, admits no priesthood, which means no final hegemony of a person or an institution over the interpretation of Gods word after the death of the Prophet. The accessibility of the Scripture to all makes the Shariah supremely anti-theocratic, and the problem of authority thus created is at the heart of religious structure in Islam-a challenge which is to be solved by human means. This has frequently been observed by Western scholars: Islam (in its majority, Sunni form) never developed an ecclesiastical, hierarchical structure and, consequently, never gave rise to official institutions or bodies capable of authoritatively defining the content of faith.[8] How was the lack of ecclesiastical institutions dealt with in Islam? Ira Lapidus, a social historian of medieval Islam at Berkeley, suggests that there exist two sharply distinct answers to this question of politico-religious legitimacy in Islam. The first is the ideal of the golden age of the early caliphate: an age of equality, piety, and prosperity in which the Muslim caliphs (rulers who directly succeeded the Prophet Muhammad, upon him be peace) wielded unmitigated religious and political authority. For the Orientalists, this early model admitted no separation of religion and state. Rather, it accorded absolute authority to the caliph, and hence, would have been prone to theocracy of the type Westerners are familiar with e.g., the case of medieval papacy. Lapidus points out, however, that the absolutist authority of the caliph was contradicted by the fact that the Quran-the primary source of normative authority in Islam-was accessible to all. Lapidus, having accepted the premise of the absolute authority of the caliph, is forced to explain this supposed conflict by introducing the odd thesis that there was an inherent flaw in the Islamic structure of authority. He writes: The Caliphal version of Islamic civilization was inherently flawed. While Caliphs were considered the heirs of the Prophets religious authority as well as his political leadership, they did not inherit Muhammads prophethood. The Quran, the revealed book, stood apart from the Caliphs and was available to every believer. At the core of their executive and symbolic primacy there was a void, for the Caliphs did not have the authority from which Muslim religious conceptions and practices were derived.[9]

Rather than question the classical Orientalist image of the early caliph as an Islamic pope, Lapidus chooses to posit the existence of a dramatic break around the classical age (9th and 10th centuries CE) in Islamic thought, as the ulama struggled to fix this inherent flaw. They did this by wresting absolute authority from the caliphate and placing it in the Community. Over time, this meant that the caliphate was reduced to a mere symbol. Furthermore, real political authority rested with military rulers while religious authority belonged to the ulama. This is the second model that attempts to reconcile state power with Sharia, which Lapidus characterizes as secularization. [10] The Community-Centered Vision: What Makes Theocracy Incompatible with Islam Lapidus is right in suggesting a break between the early caliphate model and the compromise of medieval Muslim societies. He is incorrect, however, in grasping the nature of that break. The Quran was and has always been available to the Community of ordinary Muslims. In fact, it is memorized and recited daily. The fact that its message is forcefully egalitarian and anti-elitist could never have allowed the early caliphs to claim any absolute authority. Rather, rulers were always seen as representatives and employees of the Community. They had legitimate authority of both law and political power but only because they represented the Community. This essential structure of Islam and the content of the Quran are what make theocracy impossible in Islam. It is not an historical accident. Nor is it disenchantment with the idealism of the early caliphate, or the development of multiple legal schools, or the rise of private jurists as the sole source of normative authority. There is no doubt that these developments represent the primacy of Sharia over lay rulers and religious establishments. And there is no doubt that this primacy historically saved Muslim societies from the tyranny of such lay rulers and religious establishments, in sharp contrast with the history of Christendom. Yet, these historical developments simply resulted from the inherent structure of Islam, namely the wide and public access to the Scripture and, even more importantly, the content of the Quran itself. The Quran gives unequivocal primacy to the umma (Community) as the heir to the Prophetic mission. And the Prophetic tradition enhances this further by conferring upon the Community the status of infallibility. In the presence of such ideas, it is inconceivable that the early caliphs could claim absolute religious authority over the Community. Let us consider only briefly the persistent message in the Quran which places the Community as the recipient of the Islamic mission: Thus, We have made ye a Community of the golden mean, that ye might be witnesses unto humanity, and the Apostle [Muhammad] a witness unto ye[...] (Quran, 2:143). Another verse reads: Ye are the best of communities, evolved for mankind, ye enjoin right, forbid wrong, and believe in God. If only the People of the Book had faith, it were best for them [...] (3:110). Let there be a community amongst ye that calls to goodness, commands right, and forbids wrong [...] (3:104; italics inserted). Nowhere does the Quran mention a caliph or a ruler as the heir of the Prophetic authority or mission. In fact, the only two Quranic verses that accord any authority (religious or otherwise) over the Community explicitly base this authority within the Community itself and make such authority contingent upon obedience to God: O ye who believe, Obey God, the Apostle, and those charged with authority amongst ye, and if ye differ in anything amongst ye, refer it to God

and the Apostle [...] (4:59; 4:83 has a similar message). In the face of a scriptural -and hence, widely accessible-message like this, one can only imagine the enormous difficulty that any ruler or religious institution would face in monopolizing authority. And the traditional accounts of early Islam, despite their internal variances, all fully corroborate that the early caliphs claimed no independent authority; their authority was wholly contingent upon compliance with the Sharia and representation of the Community. In brief, in this initial Community-centered vision of the golden age, both the authority of Sharia law and Sharia politics were centered around the Community (although in the beginning, law and politics were rather undifferentiated). The Fateful Transformation: The Disappearance of the Community and the Decline of the Political Sphere The key question is: what happened to the Community that had been given the torch of the Islamic mission, the torch of commanding right and forbidding wrong, and of choosing and holding accountable rulers and scholars? How did the Community-centered vision give way to the medieval Muslim societies where the Muslim polities no longer represented the Community, where Sharia law became the exclusive preserve of the ulama? With the decline of legitimate political authority, the rise of authoritarian rulers, and the increasing stratification of social and political life, the religio-political significance of the Community declined. What happened was not the separation of religion and state as Lapidus suggests, but, as George Makdisi has put forth, is better described as the separation of power from authority. This process occurred in many complex steps that cannot be explained here with any fairness, but a brief account will be given. (i) As a result of the loss of the states legitimacy (namely, its disconnection from the will of the Community) in the medieval ages, (ii) the state first tried to wrest the normative authority from the Community and turn itself into an absolute authority akin to the medieval papacy.[11] (iii) That brief attempt not only failed, but marked a watershed in history after which religious authority was granted exclusively to the Islamic scholars. But in return for this privilege, the scholars-as the true normative leaders of the Community-also had to relinquish the Communitys claim on politics.[12] (iv) Subsequently, the scholars increasingly became the exclusive authorities of the Sharia. But since their authority stood solely on their privileged interpretation of the scripture and not on any political basis, they grew both conservative in their approach and distinct from the Community as a professional class.[13] (v) The scholars also increasingly idealized the early caliphate and deliberately made it inaccessible to the wielders of power[14] in order to guard the religion from political manipulation. Furthermore, they hesitated from sanctioning political models that could give legitimate authority to the political rulers, while at the same time, making necessary concessions to the military rulers so as not to lose their cooperation. (vi) The problem was not only that the scholars wished to withhold legitimacy from political rulers, but for many complex reasons, the very idea of the Community as a political entity disappeared. This made legitimate polities impossible, for the Community had been the only source of political legitimacy in the Sharia. This transformation, namely the disappearance of the Community and hence the normative political sphere from Islamic thought, had occurred in response to complex socio-political,

military, but most importantly, intellectual factors, which have only been listed but cannot be discussed in any detail in this brief space. A comparison might help us imagine it better: let us consider what Western political thinkers have long lamented happened when the political ideas of Plato and Aristotle, hatched within a polis, confronted the power organization of the Roman Empire. Speaking of the failure of the heirs to the Athenian political philosophy in the face of the expansion of the Roman Empire, the political theorist Sheldon Wolin says: If we ask: what was the intellectual response to the primacy of power? the answer is that nowhere was the failure of political philosophy more effectively demonstrated than in its inability to account, in political terms, for this central fact in the political life of these centuries. Confronted with power, one impulse of political philosophy was to flee and seek refuge in a golden age located somewhere in the pre-political past.[15] The refuge that Muslim society sought was in the legal sphere, abandoning active political participation, forced at first by the primacy of brute power and invasion of horse-warriors. But this flight from the political sphere became inscribed in aspects of the classical theological, legal, and political literature. This does not mean, of course, that all Muslim scholars accepted it; there was much internal debate and attempts to reform-and that internal intellectual struggle has never ceased. The rise of the West, needless to say, has greatly impacted this internal dialogue within the Muslim tradition about the role of law, the norms of politics, and the nature and extent of the reform needed. Can this classical arrangement be characterized as the balanced constitution that the modern Muslim aspires to? Far from it. As stated earlier, there was no successful or balanced unwritten constitution in practice in the medieval past, and the flaws of the classical political arrangement can be seen in theory as well. The biggest flaw of this constitution, whether unwritten or formulated in classical theories of the caliphate, was that there was no room for any legitimate political authority that could represent the Community. The scholars elaborated the law, but the law is not an institution of representation or an expression of will. Rather, it is concerned with restraint and guidance. Naturally, the Community had no say in the divine law (though this is not to say that the law did not adjust to the needs of the people). The law, however, had become the sole repository of Sharia, since the political power in place at the time was, according to the law, illegitimate. All classical political theories that tried to legitimize the military rulers because of necessity proved to be meaningless and ineffectual precisely because legitimacy, according to the Sharia itself, belonged to the Community, and only the Community, the generality of Muslims, could grant it to the political rulers. It is for this reason that Muslims look back with nostalgia not to the Middle Ages, but to the golden age of the early caliphate when Sharia guaranteed that rulers were representatives and employees of the Community rather than masters and dictators. Yet, that golden age society consisted of a relatively small and undifferentiated Muslim community whose greatest asset was the momentum of piety and self-discipline inculcated by the Prophet. Such conditions cannot be fully replicated. To the traditional Muslim mind, that moment in history is sacred-when the divine light touched human history and produced a magnificent model of individual and collective life. It represents an ideal of justice, equality, engagement, and empowerment for all members of the Community. That moment cannot be reproduced, of course. But it is an ideal that

has ever since colored aspirations and moved Muslim women and men to think, to act, and to continuously improve, fully knowing that perfection cannot be attained. Traditionally aware Muslims have never sought utopia, for the aspirations of a perfect life are only for the eternal afterlife. Nevertheless, the less-than-perfect medieval tradition is also valued. It is admired for its development of a marvelous, sophisticated, pluralistic legal edifice in addition to other great intellectual and cultural achievements that academics have noted and appreciated in modern times. Conclusion It has been argued in this essay that there have been two distinct visions in Islamic history of the relationship between Community, law, and political authority. One vision privileges the early caliphate model, which places religious as well as political authority in the realm of the Community, which is in turn represented by the caliph. The second vision concerns the medieval Sunni model, which places political authority entirely in the hands of lay rulers and restricts normative religious authority to the legal sphere. The trade-off was justified by the Islamic scholars interest in not letting political powers manipulate religious authority. The casualty of this trade-off, however, was that the Community, which in Sharia has been the only source of political legitimacy, became irrelevant in theory and politically passive in practice. Consequently, the political sphere became devoid of legitimacy. In medieval Islamic history, this led to the frequent appearance of military patronage states disconnected from the ethical roots of the Muslim society. In the post-colonial Muslim nation-states, this historical problem only adds to the challenges contemporary Muslim societies face in developing a healthy political sphere. Neither of these visions, however, lends itself to despotic theocracy. The early Communitycentered and representative-caliphate vision requires an active and engaged political Community, which had become increasingly hard to maintain in medieval Islam. But that vision never died as an ideal. And it is becoming a viable contender once again in the modern world as the medieval vision is no longer sustainable. While the Community-centered model provides a better way to integrate the political sphere with the ethical basis of contemporary Muslim societies, it is inherently in need of rigorous representative institutions. Experience has shown time and again that successful political systems are deeply rooted in the values and traditions of the societies they govern. A model successful in one region cannot be implanted in another. With this caveat in mind, the technological development and procedural experimentation of modern democracies provide much needed food for the further development of Islamic political thought. Nonetheless, I am convinced that in the modern world, a genuine and critical conversation between the legal institutions developed by the classical heritage and the representative political sphere of early Islam promises to provide excellent material for the balanced constitution needed for prosperous and peaceful Muslim polities. Such polities could meet the aspirations of that 80 percent of Muslims in the world who believe that the Sharia is their best hope, as well as

the aspirations of the many non-Muslim Westerners who wish for peaceful co-existence with the Muslim world. Notes: 1. Sharia On recent Gallup polls, see John L. Esposito and Dalia Mogahed, Who Speaks For Islam?: What a Billion Muslims Really Think (Gallop Press, 2008); also: http://media.gallup.com/MuslimWestFacts/PDF/ GALLUPMUSLIMSTUDIESIslamandDemocracy030607rev.pdf 2. Sharia Noah Feldman, The Fall and Rise of the Islamic State (Princeton University Press, 2008). 3. Sharia Ibid., 6. 4. Sharia Ibid., 59. 5. Sharia Ibid., 7. 6.For an academic account, see Kevin Jacques, Authority, Conflict and the Transmission of Diversity in Medieval Islamic Law (Brill, 2006), 1-10; for a more accessible and impassioned intellectual history of this sense of crisis and attempts at reform, see Fazlur Rahman, Revival and Reform in Islam (Oxford: Oneworld Publications, 2000). 7.Sharia Robert Irwin, The Middle East in the Middle Ages: The Early Mamluk Sultanate 12501382 (London: Croom Helm, 1986); Jacques, 10. 8.Sharia Merlin Swartz, A seventh-century Sunni creed, (Humaniora Islamica, I (1973) 91131), 91; Gardet, La cite musulmane, (Paris, 1961, 31-68). 9.Sharia Ira Lapidus, A History of Islamic Societies, 2002, p. 81. 10.Sharia Ibid., 364 11.Sharia The reference here is to the famous Inquisition by the Abbasid caliph Mamun of th e traditionist Imam Ahmad b. Hanbal on the (seemingly abstruse) issue of the createdness of the Quran; the theatrical failure of the Abbasid caliphs to convince or coerce this humble scholar of the Prophetic tradition, and then later Abbasid caliphs own submission to his authority (indeed, to the authority of the tradition), forever sealed the deal in Islamic history: authority of Islam now belonged to the pious leaders of the Community who guarded the Prophetic tradition, not the caliphs. 12.Sharia The classical Sunni doctrine that emerged during the 9th and 10th C in response also embraced political quietism, never again sanctioning rebellion against an oppressive ruler, and never asking them to be properly elected by the Community. 13.Sharia These two statements might not at first seem intuitive. But even today it is easy to see the difference between how an academic or a scientist makes a claim, based on data and references etc., versus a political official whose authority derives from his office (being elected etc) who might openly act with his own wisdom; both are bound by norms of the society, but a textual specialist or a scientist is naturally conservative in his claims, given that his authority must be justified by his claim to be representing the text/data. 14.Sharia There were exceptions of course, but in the classical theories of caliphate, it was the symbolic caliphate of Mawardi and Ghazali that dominated, notwithstanding Juwaynis willingness to merge caliphate and power. (Patricia Crone, Gods Rule, Columbia U. Press, 2004, 238.) 15.Sharia Sheldon Wolin, Politics and Vision (Princeton U. Press, 2004), 83.

By Ovamir Anjum, Doctoral Candidate in Islamic Intellectual History, University of WisconsinMadison