Islamic law and the state

A commonly held view among scholars of Islam is that Islamic law is a pre-political jurists’ law in the sense that it exists, conceptually at least, prior to the founding of the state.

As a consequence, the state’s role is limited to enforcement of the body of rules, known as fiqh, developed by the Muslim jurists. The state, therefore, has no positive role in the development of the norms of Islamic law, which is understood to be a purely interpretive exercise. From this perspective, the Islamic constitution, although it provides for limited government, does not permit legislation beyond that which is found, or reasonably derivable from, revelation. According to prevailing accounts of Islamic legal history, the impossibility of legitimate, human-made positive law produced an enormous chasm between the theoretical ideals set out in the jurists’ law and the lived realities of Muslim societies. This gap between ‘theory and practice’ in turn led to the establishment of a parallel system of ad hoc law, known as siydsa.⁵ This system was rooted in the raw power of the state and was justified solely on the jurisprudential doctrine necessity (darura). Although later authors, such as Ibn Taymiyya and others, attempted to subject siydsa to the normative discipline of the Shari'ah, giving rise to what they called siydsa shariyya, modern scholars largely continue to view such rules as existing outside the normative framework of Islamic law proper, which they tacitly limit to the rules offiqh. In the modern age, where state-promulgated law has largely displaced the norms offiqh in Muslim states, the notion that a state is constitutionally disabled, from an Islamic perspective, to legislate positive law, leads to the conclusion that Islamic law is dead, or the even bolder claim that an Islamic state is conceptually impossible.

I believe these conclusions are based on the erroneous assumption that the pre-19th century Islamic constitution did not authorize human-made positive law.

To establish this point, it is useful to consider views of the 13th-century Egyptian Maliki jurist, Shihab al- Din al-Qarafi, on the different kinds of rules that were operational in the late Ayyubid and early Mamluk states. While there are many different ways to classify the rules of Islamic law, Qarafi introduces a distinction between: 1) rules that are established by virtue of revelation (ma taqarraraf asl al-shar); and 2) rules that are established by a post-revelation act of a human being pursuant to that person properly exercising a power granted to him or her by God. The first category of rules includes: a) uncontroversial rules of Islamic law (al-mujm 'a 'alayha), such as the obligation of a debtor to repay his debt, or that the punishment for theft is amputation of the hand; b) controversial rules of Islamic law derived through the reasonable interpretation of revelation (al-mukhtalafftha); and c) the universal rules of Islamic jurisprudence (al-qawa 'id al-kulliyya). These first-order rules are discovered exclusively through the hermeneutical techniques and juridical principles set out in the principles of theoretical jurisprudence, and for this reason, they are properly described as pre-political rules: neither their ontological existence, nor our apprehension of them as morally obligated individuals (mukallafUn) is contingent on the existence of any particular political order.

These pre-political rules do not exhaust the body of rules that make up Islamic law, however, the first-order rules include rules that authorize individuals to make rules for themselves by exercising a power granted to them by revelation. These are the second-order rules that make up the second category of the rules of Islamic law identified by al-Qarafi. Al-Qarafi gives two examples of first-order rules that confer rule-making power on all of humanity, the vow (nadhr) and the oath (al-yamtn).⁶ Another such first-order rule, according to al-Qarafi, is the right of public officials to make rules for the public, a conclusion he justifies using a rational proof and a legal proof.

The rational proof is the a fortiori analogy: Insofar as God granted the power to originate post-revelatory rules to all human beings, without regard to their learning or in view of a pressing necessity, through the devices of the vow and oath, a fortiori God granted that same authority to public officials, on account of their lofty position and the pressing necessity of making rules to bring an end to conflict, suppress aggressors and eliminate disorder.⁷ In this latter case, however, the rule maker’s decision does not establish a new, post-revelatory rule unless the rule maker has been properly appointed to an office that grants him the power to make rules, and has appropriately exercised that power in accordance with its terms. Thus, the market inspector may properly establish post-revelatory obligations with respect to matters falling within his jurisdiction, such as matters involving public streets in the city, but he may not litigate claims arising out of contracts.⁸ Second-order rules derived from the exercise of powers delegated to public officials are therefore explicitly dependent upon the existence of a legitimate political order. Accordingly, one can appropriately characterize the rules of Islamic law produced via the mediation of political institutions, as political rules, and thereby distinguish them from the pre-political rules offiqh that are the product of learned interpretation of revelation.

In a polity subject to an Islamic constitution, then, three kinds of rule are operative according to al-Qarafi’s analysis. The first are the rules offiqh, which can be understood to form the basic law of an Islamic polity. All things being equal, individuals are presumptively entitled to act in accordance with their rights under the rules offiqh, and are subject to the obligations the fiqh imposes on them, in each case, as articulated through an appropriately constituted legal opinion (fatwa). In the event of conflict between rights holders, or potential conflict between rights holders, however, rights holders were obliged to submit their dispute to a judge (qadi or hakim) whose decision, provided it was not procured by fraud, and that the judge ruled based on a reasonable interpretation of revelation, constituted an origination (insha ') of a particular rule that conclusively settled that dispute, both as a temporal matter and in the hereafter.

The result of a valid judicial decision, moreover, not only forever bound the litigants, it also required all jurists to change their opinion regarding the proper resolution of the case and to adopt the solution applied by the judge. It is in this latter sense that the judicial decision constitutes a post-revelatory rule: in the absence of a judge’s decision, it would be the case that numerous rules could have applied to the dispute, some of which would be in contradiction, as would be the case of a marriage of a woman who enters into a marriage contract without the permission of her father. While such a marriage would be valid according to the Hanafis, it would be invalid according to the Malikis, and before a judicial ruling conclusively determining the marriage’s validity, jurists of both schools would be entitled to issue legal opinions regarding the marriage’s validity in accordance with the teachings of their respective legal schools. Once a Hanafi judge rules on the case, however, and determines it is valid, even the Maliki jurists are under an obligation to recognize that marriage as valid.

While final judicial rulings are universally binding, in the sense described above, they are limited in effect to the litigants. Accordingly, the next case involving a woman who marries without her father’s consent would be subject to the same conflict between the Hanafis and the Malikis that existed prior to the judicial ruling in the prior example. That is because judges do not have authority to resolve, conclusively, disputes about the correct rule of divine law, a matter that al-Qarafi states is a matter for the next life. Accordingly, juristic differences in the fiqh cannot be universally and prospectively resolved through a system of binding precedent as one sees in modern common law systems: the only mechanism in thefiqh for the universal and prospective resolution of a substantive dispute regarding the content of a rule of law is for the jurists themselves to settle on a single rule, resulting in a consensus (ijma j.

Al-Qarafi, however, recognizes a third kind of rule making that is capable of generating universally binding norms, which he calls tasarruf bi-l-imama (administrative act). Unlike a judge’s interstitial rule-making activity, which represents the union of the pre-political rules of the fiqh represented by the universal, but non-binding legal opinion (fatwa), with the particular evidence (hijaj) produced by litigants in the context of litigation, to produce the binding and unassailable judicial decision (hukm), an administrative act is based on the office holder’s interpretation of empirical facts in light of the public good (al-maslaha al- ‘dmma). An administrative act is neither a legal opinion, insofar as it is not based on the interpretation of revelation, nor is it a judicial decision, insofar as it is not based on courtroom evidence. Although it is prospectively and universally binding like a legal opinion, it is a binding rule of law, unlike a legal opinion which binds only those who accept it as a true conception of the law. Although an administrative act is like a judicial ruling insofar as it is binding, it is subject to revision and even repeal in its entirety by a subsequent office holder if the successor believes the rule is no longer consistent with the public good.

Al-Qarafi’s taxonomy of the rules of Islamic law, therefore, provide an important corrective to the notion that Islamic law is limited to rules derived from the interpretation of revelation. While it is true that such rules, which are set out in the theoretical treatises of the jurists and communicated to the public through the mechanism of the legal opinion (al-fatwa), represent the basic law of the Muslim community and that these rules are prepolitical, public officials complete the community’s law by making supplemental law, either interstitially on a case-by-case basis through the binding and irrevocable mechanism of the judicial ruling (al-hukm), or on a wider, albeit revocable, basis, through the mechanism of an administrative act that relies on the office holder’s determination of the public good (al-maslaha).

This last category, I argue, is effectively recognition of the right of public officials to ‘legislate’ rules that bind the community, not because they represent either a true or probable interpretation of divine will, as is the case with a legal opinion, but because such positive acts are necessary to achieve the well-being of the community.

Al-Qarafi, while expressly creating normative space within Islamic jurisprudence for legitimate public-interest legislation, failed to provide a systematic account that set forth the relationship between the power of public officials to legislate in accordance with the public interest, and the rights of individuals as set out in the basic law of the community. Nevertheless, it is impossible to avoid the conclusion that for al-Qarafi, where the public official exercised public-interest powers appropriately, that rule displaced any rights an individual might purport to enjoy under an otherwise valid legal opinion. It would make no sense, for example, for al-Qarafi to defend the Maliki view that the right of a soldier in the Muslim army to despoil an enemy warrior that he himself killed was contingent on the prior permission of the ruler, and then to grant that a follower of the Shafi'i school, which believed that soldiers did not need the prior permission of the ruler to exercise this right, could do so even in circumstances where the ruler, exercising his prerogatives as head of the Muslim community, prohibits them from so doing. At least in circumstances where the public official exercises his public-interest law-making power appropriately, then, we can be reasonably confident that in al-Qarafi’s view, such rules pre-empt the rights of individuals in the public to act in accordance with what would otherwise have been legitimate conceptions of their rights as established in the fiqh.

We now must turn to the unexplored question in al-Qarafi’s theory, namely, what must a public official do in order to establish that he exercised this law-making power appropriately? In so doing, we admit that we are necessarily engaged in a reconstructive enterprise: in contrast to the rules that determined whether a legal opinion was valid (usul al-fiqh), or whether a judicial ruling was valid (the rules offiqh governing adjudication), there were no systematic treatises, as far as I know, that discussed the conditions that rendered the exercise of this power valid. Instead, various particular rulings are found that regulate the conditions that must be satisfied so that an administrative act is valid. These conditions require us to return to the model of agency that we argued in the previous section was constitutive of the Islamic constitution as understood by Sunni jurists. So it is to that topic to which we next turn.

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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