I implications of the Sunni constitutional theory for modern Muslim-majority states
Some Muslim scholars who are understandably concerned about the practical implications of contemporary calls ‘to apply the Shari 'ah (tatbiq al-Shari 'a)’ in the name of preserving the integrity of divine sovereignty have objected to such a programme, in part arguing that there is no such thing as applying divine law, and that in all instances, state law is necessarily human law.
Moreover, these scholars have also suggested that there is an unbridgeable conceptual gap between divine law as an idea, and the idea of popular sovereignty that underwrites the modern state. Accordingly, Muslims should instead be content with preserving the Shari ah as a reservoir of moral ideals that can be used as a source of inspiration for particular political projects or laws, but the state should never claim that it is ‘applying Islamic law’.19 Indeed, Wael Hallaq in a recent work goes even further, and argues that there is an absolute incompatibility between the idea of the Shari 'ah and the idea of the modern state.20More generally, the fear an ‘Islamic state’ creates even among observant Muslims is that the state will use its claim to be Islamic to silence all dissent, and claim that dissent to its policies amounts to disobedience to God. Secularists, on the other hand, while sharing that fear, also fear that there would be no room for democratic self-government in an Islamic state insofar as the legislative function would be an exercise simply of law finding through interpretation of revelation rather than law making by means of deliberation. Furthermore, any constitutionalization of Islamic law would lead to a result in which the pre-modern corpus of Islamic law determines the content of the state’s positive law and renders reform efforts, particularly in areas such as family law, impossible.
A conception of an Islamic constitution developed from the model outlined in this chapter, however, responds to both of these concerns.
First, it makes clear that in promulgating legislation, while there is at least a prima facie moral duty to obey the law (on the assumption that the state is in fact properly representative and the other Islamic conditions of legislative validity are satisfied), the duty to obey the law does not derive from its status as a true conception of divine law, but rather because it represents a proper manifestation of the public’s will in formulating and pursue its own good. This manifestation of the public’s will is not absolute, however, as individual members of the public, even if bound to adhere to the content of the law, remain morally free to contest both the legality of the rule, insofar as they may disagree with whether it represents a permissible understanding of divine law,21 and to insist on an excuse from adhering to the law if they can credibly claim that, from their subjective perspective, compliance with the law would cause them to sin. Second, the conception of an Islamic constitution set out here makes clear that the fiqh, although representing the basic law of the Muslim community, does not provide individuals with a set of non-negotiable and absolute rights and obligations that are outside the political process. Rather, they represent a kind of baseline set of entitlements that may be varied through the exercise of legitimate deliberation about the public good, so long as the revisions made to the rights and duties that are set out in the basic law do not either compel individuals to sin, or compel them to refrain from performing an obligatory act. Reforming rules of family law, for example, whether with respect to granting women equal capacity to enter the marriage contract or equal rights to exit it by divorce, could be accomplished as a manifestation of the public’s will to exercise its freedom by amending the terms of the marriage contract as set out in the fiqh by including various stipulations that go beyond the minimum set out in the basic law, just as a particular husband may do so in favour of his wife in their particular marriage contract. Instead of such legislation depending for its moral justification on controversial claims regarding the proper meaning or intent of divine revelation, such reforms would rest on the much firmer grounds (and metaphysically less controversial grounds) of a permissible exercise of the public’s freedom to determine what will result in its own collective well-being.What this analysis of Islamic constitutional law suggests, therefore, is that Muslims are not in need of any new theories of interpretation in order to justify the reform of the content of Islamic law. Indeed, to the extent that they continue to be fixated on interpretive reform of the basic law, they reinforce a paradigm of law that excludes, or at a minimum marginalizes, political deliberation about the public good in favour of a theological inquiry into the actual content of divine law that can never, at least within the theological assumptions of Sunnism, achieve even a temporary resolution. Islamic positive law, on the other hand, as set out in this argument, need not claim for its effectiveness more than that it represents a non-sinful conception of divine law, and that it is reasonably believed to be consistent with the public good, for it to constitute legitimate and binding law. And in any event, it also leaves open the possibility for criticizing, revising and even repudiating both assumptions with respect to any particular legislative act, thus preserving the political community’s freedom to make and revise laws for itself, without sacrificing the morally binding character of such laws for so long as they remain in force. What Muslims need, therefore, is not a better hermeneutics, but rather a better politics that can legitimately and effectively represent them. In short, what they need to effect reform of Islamic law is democracy.
Notes
1 See, e.g., Thomas Hobbes, and J. C. A. Gaskin, Leviathan (Oxford: Oxford University Press, 1998).
2 A good example of implausible interpretations of revelation are attempts to interpret the use of the verb da-ra-ba in the notorious ‘beating’, verse 4:34, to mean ‘go away' instead of‘beat’.
Neal MacFarquhar, ‘Verse in Koran on Beating Wife Gets New Translation’, New York Times, 25 March 2007, http:// www.nytimes.com/2007/03/25/world/americas/25iht-koran.4.5017346.html?pagewanted= all&_r=0 (accessed 24 July 2018).3 The most famous dissident is the 20th-century Egyptian scholar, 'Ali 'Abd al-Raziq, who denied that the Prophet Muhammad was ever a worldly ruler. See 'Ali 'Abd al-Raziq and Mamduh Haqqi, Al-Islam wa-Usul al-Hukm: Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Beirut: Dar Maktabat al- Haya, 1966).
4 ‘The Caliph is merely the public’s messenger... and insofar as he is merely their messenger, his actions are the equivalent of acts done by the Muslim public.... Accordingly, when the Caliph removes a judge or a provincial governor, the judge or the provincial governor, as the case may be, is in fact removed from his position by virtue of that command, but neither is removed from office upon the Caliph ’s death, because, in reality, neither was removed by virtue of the Caliph ’s command, but rather by virtue of the public’s command to remove him (innama al-khalifatu bi-manzilat al-rasul 'anhum... wa-idha kana rasulan kana fi 'luhu bi-manzilatfi d 'ammat al-muslimin... inna al-khalifa idha 'azala al-qadi aw al-wali yan'azil bi-'azlihi wa-la yan'azil bi-mawtihi li-annahu la yan'azil bi- 'azl al- khalifa haqiqatan bal bi- 'azl al- 'amma)’. Abu Bakr al-Kasani, Bada’i' al-Sana’i', 2nd edn (Beirut: Dar al-Kutub al-'Ilmiyya, 1986), 16.
5 For an overview of the standard conception of the relationship of the Shari 'ah to the state in Islamic history, see Mohammad Fadel, ‘State and Shari 'a, in The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29—42.
6 A vow gives every adult the power to transform a morally commendable act (mandub) into a morally obligatory one (wajib). An oath allows a person to transform the occurrence or non-occurrence of any event into a ground of legal obligation, e.g.
‘If I strike 'Amr, my slave, Zayd, is free’.7 Shihab al-Din al-Qarafi, Al-Tamyiz, 28.
8 Ibid., 168.
9 Abu al-Barakat Ahmad b. Muhammad b. Ahmad al-Dardir, Al-Sharh al-Saghir, ed. Mustafa Kamal Wasfi (Cairo: Dar al-Ma'arif, n.d.), 508 (an agent is obliged to act for the benefit of the principal (wa-fa'ala al-wakil al-maslaha wujuban... li-muwakkilihi)).
10 Shihab al-Din al-Qarafi, Al-Furuq (Beirut: 'Alam al-Kutub, n.d.), 39. See also, Shihab al-Din Ahmad b. Muhammad Makki, Ghamz Uyun al-Basa’irfi Sharh al-Ashbah wa-l-Naza’ir (Beirut: Dar al-Kutub al-'Ilmiyya, 1985), 369 (the actions of the Imam bind the public only if they are in the public good (al-qa 'ida al-khamisa: tasarruf al-imam 'ala al-ra'iyya manut bi-l-maslaha)); Jalal al-Din al- Suyuti, Al-Ashbah wa-l-Naza’ir (Beirut: Dar al-Kutub al-'Ilmiyya, 1990), 121.
11 See, for example, Muhammad b. Ahmad b. 'Arafa, Hashiyat al-Dassuqi 'ala al-Sharh al-Kabir (Beirut: Dar al-Fikr, n.d.), 406—7 (i 'lam anna mahalla kawn al-imam idha amara bi-mubah aw mandub tajib tai atuhu idhai kai na mia amara bihi min al-masai lih al- ai mma); Sulayman b. Muhammad b. 'Umar, Hashi- yat al-Bijirmi 'ala al-Khatib (Beirut: Dar al-Fikr, 1995), 238 (duty to obey a command mandating the performance of an act that revealed law classifies as permissible becomes obligatory only if it relates to the public good, like refraining from smoking); Hashiyat al-Imam Abd al-Hamid al-Shirwani 'ala Tuhfat al-Muhtaj (Beirut: Dar Ihya’ al-Turath al-'Arabi, n.d.), 69, 71. See also, Al-Qadi Abu Bakr b. al-'Arabi, Ahkam al-Qur’an, ed. Muhammad 'Abd al-Qadir 'Ata (Beirut: Dar al-Kutub al-'Ilmiyya, 2003), 102—3 (stating that the ruler was delegated power only to vindicate the rights of the public, not the rights of particular individuals).
12 Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra (Cairo: al-Maktaba al-Islamiyya, n.d.), 235—6 (obedience is obligatory if the ruler believes the command is lawful); Muwaffaq al-Din ‘Abdallah b. Ahmad b.
Muhammad b. Qadama, al-Mughni (Cairo: Maktabat al-Jumhuriyya al-’Arabiyya, 1964), 366 (if the ruler issues a command which he believes is illegal, and it is carried out, the ruler is personally liable).13 See, for example, al-Kasani, Bada’i' al-Sana’i', 100 (orders of the ruler should be obeyed unless they are known to be sinful); Muhammad b. Muhammad b. ‘Abd al-Rahman al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar Khalil (Beirut: Dar al-Fikr, 1992), 250 (if the ruler orders a person to kill, amputate or unjustly appropriate property, the latter must not obey the command, and if he does, he is liable for retaliation (qisds) and the value of the unlawfully seized item (al-ghurm)); see also, al-Khatib al-Shirbini, Mughni al-Muhtaj ila Ma'rifat Ma’ani Alfaz al-Minhaj (Beirut: Dar al-Kutub al-’Ilmiyya, 1994), 5:539; Ibn Qudama, 366. Ibn Qudama in this case limited this requirement to a person with an independent capacity to interpret the law; non-specialists, on the other hand, were entitled to adopt the legal reasoning of the public official who had issued the command, at least in cases whose legality was a matter of legal reasoning (ijtihad').
14 Al-Qarafi, al-Furuq., 40 (fa-yulhaq bihi al-qada" min al-qada bi-ghayr "amalihi fa-innahu la tatanawaluhu al-wildya li-anna sihhat al-tasarruf innama yustafad min "aqd al-wilaya wa- "aqd al-wilaya innama yatanawal mansiban muayyanan wa-baladan muayyananfa-kana mazulan ’amma "addhu la yanfudh fahi hukmuhu wa-qdlahu Abu Hanifa wa-l-Shafi 4 wa-Ahmad ibn Hanbal... wa-ma "alimtu fahi khilafan).
15 Ibid., 43 (al-qa ’ida anna al-tuhma taqdah fa al-tasarrufat ijma "an min haythu al-jumla).
16 Ibn Hajar al-Haytami, Al-Fatawa al-Fiqhiyya al-Kubra, 235—6.
17 Ibid. (distinguishing the obligation to obey inwardly (fa al-sirr) and outwardly (fa al-jahr)). Other jurists apply the terms bdtin and zdhir to express the same notions of inward and outward compliance. See, for example, Hashiyat al- al-Shirwani, 71.
18 Ibid.
19 See, for example, Khaled Abou El Fadl, Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2015), and Abdullahi an-Na'im, Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008).
20 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012).
21 In other words, the power to make positive law does not abrogate dissenting views about the content of the basic law itself, as is clear from the price-setting case discussed above. Even though the mufti in that case replied that the petitioner was under a moral obligation to adhere to the price restraint, the mufti did not revise the basic position of the Shafi'i school that denied the legitimacy of price restraints as a matter of the basic law of Islam.
Selected bibliography and further reading
Abou El Fadl, Khaled. Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2015).
'Arabi, Oussama. Studies in Modern Islamic Law and Jurisprudence (London: Kluwer Law International, 2001).
Crone, Patricia. God’s Rule: Government and Islam (New York: Columbia University Press, 2004).
Fadel, Mohammad. ‘Islamic Law Reform: Between Reinterpretation and Democracy’. Yearbook of Islamic and Middle Eastern Law 18(1) (2017): 44—90.
Fadel, Mohammad. ‘State and Shari'a’. In The Ashgate Research Companion to Islamic Law, ed. Peri Bearman and Rudolph Peters (Farnham, Surrey: Ashgate, 2014), 29—42.
Feldman, Noah. The Fall and Rise of the Islamic State (Princeton, NJU: Princeton University Press, 2008).
Fox-Decent, Evan. Sovereignty’s Promise: The State as Fiduciary (New York: Oxford University Press, 2011).
Hallaq, Wael. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012).
Na'im, 'Abduallahi Ahmed al-. Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008).
Qarafi, Shihab al-Din Ahmad b. Idris al-. The Criterion for Distinguishing Legal Opinionsfrom Judicial Rulings and the Administrative Acts ofjudges and Rulers, trans. Mohammad Fadel (New Haven, CT: Yale University Press, 2017).
Schacht, Joseph. ‘Problems of Modern Islamic Legislation’. Studia Islamica 12 (1960): 199—29.
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