Juristic Authority vs. State Power The Legal Crises of Modern Islam-Wael B. Hallaq.pdf

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Juristic Authority vs. State Power: The Legal Crises of Modern IslamAuthor(s): Wael B. HallaqReviewed work(s):Source: Journal of Law and Religion, Vol. 19, No. 2 (2003 - 2004), pp. 243-258Published by: Journal of Law and Religion, Inc.Stable URL: http://www.jstor.org/stable/3649176.

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JURISTICAUTHORITYVS. STATEPOWER:THE LEGAL CRISESOFMODERNISLAM*

WaelB. HallaqtTo say thatauthoritys the cornerstone f anylaw or legal systemis to statethe obvious. Authoritynot only definesthe law but in effectconstitutes t formallyand substantively.There can be no functioning

law or legal system without an underlyingstructureof authority hatmay in turn derive from another power-basedor authority-basedsubstrate,uch as a state. This much we takeforgranted.Althoughit is commonplace or the Western awyer or jurist toview the state as a body wieldingandexercising egal authority, uch aview is neitherobviousnor normative or his Muslimcounterpart,ndeven less obviousby far to the Muslimmassesaround he world. Yet,paradoxically,he greatmajorityof today'sMuslimcountriesruntheirlegal systemson theoperative-and very concrete-assumptionthat t isthe state that produceslegal authority. In other words, within thenationalbody politicof eachmoder Muslimcountry here ies a sourceof legal powerthatpresumablyegitimizesand enforcesboththe publicactionsof the lawandtheprovisions hatgovern heprivate phere.I say paradoxically ecause in contemporaryMuslim thinkingthere exists an obvious dislocationbetween two perceptionsof legalauthority,one emanating rom the stateandthe otherfrom elsewhere.This second source of authorityhas been the dominant, indeedunrivaled,conceptionfor over a millennium,while the perceptionofauthority odged in the states was introduced n these nations onlyduring the 19th and 20th centuries. The dislocation between the twosourcesof authorityumsupthe legal (if notcultural ndsocial) rupturethatoccurredwiththe introductionf so-called modern eform.As is well known,earlyin the 19thcentury, he OttomanEmpire,includingEgypt,embarked n a processof reformthatwas to changenot only the face of the then existing legal system,but also its innerstructures.This sort of process also obtained n FrenchNorth Africa

* Thisessayrepresents slightlyrevisedversionof a paperpresented t the MiddleEastLegalStudiesSeminar, eldbyYaleLawSchoolin Granada,pain, nJanuary003.t Professor,nstitute f IslamicStudies,McGillUniversity,Montreal,Quebec,Canada.243

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JURISTICAUTHORITY S. STATEPOWERto refer to the relevanttypes of authority hathave been identifiedbysociologistsandothers,althoughwe can immediately,and for obviousreasons,isolate suchtypesas moral or charismaticauthority.We mayeven exclude religious authority,despite the fact that Islamic law issupremelyreligious in character. Religion qua religion tends less tobestowauthority n Islamic aw qua law thansurroundt withanauraofsanctity. Islamic law is religiousonly at the most fundamentalevel,more as a holistic entity than its particulardetail. As we shall see,Islamiclaw derives ts authority otjustbecause it is believed to be thelaw of God, for hermeneuticallyGod did not reveal a law but onlytextualsigns or textualindications hatwere to remainemptyof legalsignificancehadtheybeenleftunexplored.Or moremetaphorically,heGod of Islamrevealedonlythe basicbuildingblocks of the law withnomore than ntimations f a blue-print s to how theHouse of Law shouldbe constructed nd formedout of these blocks. Obedience o a law iscertainlybacked by God's authority,but what is preciselythat lawwhichrequires uchobedience?If Islamic aw stipulatesprovisionX ora Y (theconstitutive lementsof the law), obediencemaybe ultimatelyto God, but the authoritybackingthe very stipulationsof X andY arenot His alone, if at all. For He never revealed these stipulationsorprovisions,and therefore annotbe heldresponsible or them. All Goddid was to reveal the textual signs that form the speculative,hermeneuticalbasis of legal construction,and inasmuch as X and Ycould be derived from these signs, so conceivably could theconstructions andQ.It is thereforethe agents of interpretiveconstructionwho areresponsible, and these are the jurists. They were the ones whoconstructedhe House of the Law,andthey were fully responsible orthe elaboration f theverymethodologyaccording o whichIslamic awbecametheedificeit was to be. Itis thereforenot onlyaccuratebutalsonecessaryto insist on the characterof Islamic law as jurists'law(without having to associateit too closely, for instance,with Romanlaw).Islamiclaw is jurists' law not only because it happened o havebeen constructedby jurists, but mainly because the jurists are thecarriers of theauthorityhat sustainedt forover a millennium.This,inturn,leads us to the question:Whattype of authoritydid thesejuristscarry? Religiousauthority, s we saidearlier, s by no means sufficientto explaintheirrole. If we wereto insist on this typology,then all menof religion should be the carriersof this authority, including thetheologiansandthemystics. Butwe knowfull well thatthese two kinds

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JOURNALOFLAW& RELIGIONof religiousscholarsneitheraspired o norattainedhe statusof carriersof legal authority.It was onlythejuristswho did,andif theysucceededin doing so it was because they were the sole agents of legalepistemologyandhermeneutics.Moreover, hejuristsandthose whomthey trainedand, in one way or another,supervisedwere also thecustodiansof Muslim societies. They were the spiritualandpracticalguidesof the umma theMuslimcommunity);heycontrolled he entireinfra- and super-structuresf legal education; hey ranwhat we mightterm municipalaffairs. They collected taxes and improvedpublicworks;supervisedhe affairsof the market-place ndcontrolledandrancharitable foundations, the very foundations of their professionalexistence;andthey functioned, nteralia, as guardiansof orphansandotherunprivileged ocialgroups,administeringheirfinancialandotheraffairs.' The legalprofession,with thejuristsat its head,was thereforeat once a religious,moral, social, and legal force. It is difficult toconceiveof, much less write,the social,culturalandlegal historyof theMuslimworldwithoutdue attention o the central ole the legistsplayedin it. In fact,there s little Islamichistory o be writtenwithoutIslam'slegal professionand ts contributionso its owncivilization.In termsof generating uthority,hese social roles were admittedlysupportive. They merely enhancedthe image of the jurists as bothcustodiansof the Shari'aand the unfailingcivic leaders of the Muslimcommunities. Instead, t was mainlythe role thatthey playedas legalinterpreterswhich bestowed on the jurists their distinctivemode ofauthority. In this capacity,theirauthoritywas ultimatelyepistemicinnature-knowing the law and how it is to be derived,interpreted ndappliedwere thequalities hatconferred pistemicauthority.2It must be stressedthatepistemicauthority anthrough he entirelegal hierarchy,from top to bottom. The Islamic legal professionacknowledgeda hierarchy f legal players, eginningwiththe schooleponyms-or founders of the legal schools-and ending with themuqallids, those who followed, reinterpreted, nd applied the legaldoctrinethat had been establishedby their superior orerunners. Theeponyms were deemed absolute mujtahidswhose legal knowledge,presumed to be all-encompassingand wholly creative, is causallyconnectedwith the foundingof a school.3 The schools are not only

1. Emile Tyan, Judicial Organization,n Law in the Middle East 236, 259-263 (M.Khadduri& H.J.Liebesney ds.,TheMiddleEastInst.1955).2. Wael Hallaq, Authority,Continuityand Change in Islamic Law 1-23 and passim(CambridgeU. Press2001).3. Id.at 1-23.

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JURISTICAUTHORITYVS.STATEPOWERandpractice, herebybringingtogethersocial legal realitywith juristichermeneutics and reasoning. It was largely on the mufti's work that theauthor-jurist epended n constructinghis material. The law-manualsand extensivecompendiaof the law producedby the author-juristndused by the legal professionas authoritativeeferencescontainedtheLaw of Islam. Thefatwa genrewas systematicallyabsorbedby theseauthor(iz)ed works which, in tur, sanctioned these fatwas asauthoritative.This process of absorptionwas a complexone, and weneednot dealwith it here.'?Whatneeds to be said,however, s thatthehermeneutics nvolved in the fatwa and the authoredwork, whosecontentsreflected the interactionbetween the socio-legal reality anddiscursive urisprudence,was responsible or the maintenanceof legalauthority s muchas the littleappreciatedlementof legal change. Themuftiandauthor-juristmaintainedhe legal tradition f their school andin the processdefended, mproved,and appliedit. At the same time,they implementeda piecemealchangethat remained ntirelyfaithfultothetradition,withoutshakinganyof its principlesorsensibilities.Itwasa changethat was acutelysensitiveto the society,its demands,and itsethos. Change, n otherwords,came fromwithin thetradition, nd wasarticulatedand defended through its indigenous mechanisms andhermeneuticalpparatus.In contrast o the muftiand the author-jurist,he qadi had no realrole to play in maintaining egal authorityand the school tradition.Simply put, the qadi qua qadi was not trustedas such an agent. TheIslamiclegal literatures repletewith references o the precariousanddubiousroleof qadisas agentsof corrupted olitics. Theqadi,until theOttomanera, was the only legal functionarythat was exclusivelyappointed,paid and dismissed by governmentagencies. Receivingappointment s a qadiwas, for the appointee,oftena cause for lament,associatedwith a strongsense of adversity.It is not an exaggerationosay that suchan appointment, nce accepted,was liable to diminish hepersonalauthorityof the jurist,and could exposehim to suspicion-ifnot actualcharges-of corruption nd lack of rectitude. And if this isthe case, it was by virtue of the fact that, for the legally-minded theFolk of the Shari'a ),government nd state wereroutinelyassociatedwith corruption,coercion and temporalpredilection-all the morereasonto curtail heirpowers. If the qadi lackedprestigein legal andmoralauthority,t is becauseof his associationwithpoliticalcircles,a

10. See id.; Hallaq,supran. 3, at 166-235;and Wael B. Hallaq, 'FromFatwas to Furu':Growthand Change in Islamic Substantive Law, 1 Islamic L. & Socy. 29 (1994).

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JOURNALOFLAW& RELIGIONfact which explainswhy Islamiclaw and its legal system tried-andlargelysucceeded-to keep largely(thoughnot entirely)aloof fromthecircles of politics for over a millennium. It is accurateto say thatIslamic law was a system that operated outside of state andgovernmentnfluence. And it didso withremarkablendependence ndsuccess.This uniquerelationshipbetweenthe law and the state claimslong historicalantecedents.Butbeforeembarking n an explanation fthis relationship,t mustbe brieflynoted thatbracketinghe term statein anydiscussionaboutpre-modem slamicpolityandpoliticalhistory seminently necessary. The Islamic state, like all its pre-modemcounterparts,id not developthe features hat havecome to exist in theEuropeannation-state. It did not develop the notion of territorialsovereigntyas based on the conceptof nation,nor did it conceive of anationalcitizenship.More mportantly,t didnot unctionas themodemnation-statedid: it remained argelyaloof fromthe affairsof society,taxation emaininghecentral, houghofteninterrupted,ointof contact.Whereas henation-state ltimately ameto dominate ivil life by meansof a systematicregulationof municipalaffairsand social-familialandeconomicrelations,the Muslimrulerlargelyleft these domains to thelegal profession,keepingto himselfabsolutecommandof the militaryand strictly political matters. Also significant s the glaringfact thatpolitical governance n pre-moder Islamwas personal, n line with thetraditionalormsof leadershiphat evolved in theNear Eastthroughoutthe Islamic and pre-Islamic periods. In contrast,the nation-stateoperatedand still operatesn themannerof a corporate ntitybackedbya trenchant ational deologyand an all-pervadingpisteme(to borrowfromM. Foucault) hatgo farbeyondthe personalwill-to-powerof theruler. 1

Now, to understandhe natureof the relationship etweenlaw andpolitical governance n Islam,it is imperative o turn to the formativeand middleperiodsof this civilization,duringwhich the foundations fthis relationshipwere laid, enabling it to last until the dawn ofmodernity.12 As earlyas the second/eighth entury,t hadbecomeclearthata wedge existed betweenthe rulingelite andthe emergingreligio-legal class. Thiswedge was to make itself evidentwith two concurrentdevelopments, he first of which was the spreadof the new religious11. See Martin van Creveld, The Rise and Decline of the State 189-335 (Cambridge U. Press1999).12. The next few paragraphsdraw on my work The Origins and Evolution of Islamic Law ch.8 (Cambridge . Pressforthcoming 004).

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JURISTICAUTHORITYVS.STATEPOWERethic amongthe ranksof the legal specialistswho increasinglynsistedupon ideal human conduct driven by piety. In fact, it is nearlyimpossibleto distinguishthis ethic from the social categoryof legalscholars,since the latter'sconstitutionwas entirelydefinedby this ethicof piety, mild asceticism andknowledgeof the law andreligion. Thesecond was the increasingpower and institutionalizationf the rulingelite, who, after the first centuryof Islam, began to departfrom theegalitarianorms of tribal eadershiphatthe earliercaliphshadknown,and according o which they had conducted hemselves. Caliphsnowlived in palaces, wielded coercive powers, and gradually butincreasinglydistancedhemselves romthepeople theyruled.The religious impulse-permeated with ethical and idealisticvalues and inspired and enrichedby the proliferationof religiousnarratives-beganto equategovernmentandpoliticalpowerwith vice,seeing themas infestedwith corruptiono the samedegreeas the piouswere repletewith virtue. This attitudeoriginated ometimearound hebeginning of the second/eighthcentury, and was reflected in themultitudeof accountsandbiographicaldetailsspeakingof appointmentto the office of judgeship. As of this time, andcontinuing ornearlyamillennium hereafter,he theme ofjudicialappointments anadversityinflicted upon the legists who received it became a topos and adominating etailof biographical arrative.But thisprofound uspicionof associationwith thepoliticaldid notmean thatthe legists predominantlyefusedjudgeships,nor even thatthey did not desire them. In fact, by and large, they acceptedtheseappointmentsand many junior legists must have viewed them as anaccomplishmentn their careers. On the otherhand, the rulingelitecould not dispensewith the jurists,for it had become clear that legalauthority,inasmuch as it was epistemicallygrounded,was largelydivorced frompolitical authority. Religious and,by definition, egalknowledge had now become the exclusive domain of the jurist, theprivate scholar. It is preciselybecause of this essentially epistemicquality hattherulingelite needed he legiststo fulfill theempire's egalneeds,despite ts profoundapprehensionshatthe legists' loyaltieswerenot to the governmentbut to their law and its requirements,whichfrequently onflictedwith the views of therulingclass. Thisdisjunctionbetweenthepoliticalandthelegalconstituted heunshakableoundationof the separation etweenwhatmightroughlybe calledhere thejudicialand the political-executivepowers, a separationthat is nowadaysdeemedessential n liberaldemocracies.

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JOURNALOF LAW& RELIGIONYet, the legists and the rulersneeded each other,and thus bothlearned how to cooperate-and cooperate they did, albeit from adistance. The legistsdependedon royalandgovernmentpatronage,hesingle most important ontributor o their financialwell-being. Theywere oftenpaidhandsomesalarieswhen appointed o a judgeship,butthey also received generous grantsas privatescholars. On the otherhand,the governmentwas in dire need of legitimization,whichit foundin the circles of thelegal profession. Itwas one of the salientfeaturesofthe pre-modemIslamic body-politicthat it lacked systematiccontrolover the infrastructuresf the civil populations t ruled. The legists

served he rulersas an effective tool forreachinghemassesfromwhoseranks hey emergedand whomtheyservedandrepresented.Hence the religiousscholars n generaland the legists in particularwere often called upon to express the will and aspirationsof thosebelongingto the non-elite classes. They not only intercededon theirbehalf at the higher reaches of power, but also represented or themasses the ideal of piety, rectitude and fine education. Their veryprofession as Guardiansof Religion, experts in religious law andexemplarsof virtuousMuslimlifestyle made them not only the mostgenuinerepresentatives f the masses but also the true heirs of theProphet, s oneProphetic eport ame to attest.13The rulersthereforehad no optionbutto endorseboth thejuristsandthereligious aw whose authoritydependedon the humanabilitytoexerciseeruditehermeneutic. Those who perfected his exercisewerethe jurists,and it was they and their epistemologicaldomain that setrestrictionson the absolutepowers of the rulers,whetherthey werecaliphs,provincialgovernorsor theiragents.Theprestige hejuristsacquirednotonly brought hemeasyaccessto the royal court and to the circles of the political elite,14but alsorendered hem highly influentialin governmentpolicy as it affectedlegal matters,andperhaps n other mattersof state. Almostall majorjudicial appointmentswere made at the recommendationf the ChiefJusticeat the royal court or the assemblyof jurists gatheredby thecaliph,or both. At times, thejurists' influence n politicalmatterswasimmeasurable. Our sources portraythem as men of learningwhomanagedto make themselvesequallyaccessible to both the commonfolk andhigh society,including he supremerulers. Some of them are

13. Abu'UmarYusuflbn 'Abdal-Barr, ami'Bayanal- 'Ilmwa-Fadlihi, ,34 (n.d.).14. Waki',Akhbar l-Qudat,3 vols. III,158, 174,247, 265, (n.d.)andpassim;Shamsal-DinIbnKhallikan,Wafayat l-A yan,4 vols., II, 321, 322 (n.p. 1997);III, 204, 206, 247, 258, 388,389;andal-Khatib l-Baghdadi,TarikhBaghdad,14vols., IX,66 (n.p.1931).

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JURISTICAUTHORITYVS.STATEPOWER

reported shavingbeeninordinatelynfluentialn theroyalcourts, o theextentof dominating he caliphs. Inthe OttomanEmpire,whose lifespanneda good five centuries,his fundamental ependenceon the legalprofession ed to the creationof the office of Shaykhal-Islam, he chiefmufti,who occupied the second highestrank of governanceafter thecaliphhimselfand whose authority ctedas a brakeon that of the latter.In the wordsof a distinguishedOttomanist,he Shaykhal-Islamactedas thereligiousadvisor f the sultan.Hewasregardeds themost exaltedpersonagen thewholereligiousorder: t was a signof his freedomof judgment ndhis power o curbandrebuke heholdersof power hathewas not a member f thesultan'sdivanofhighofficials.'5Thatthe caliphsand sultans strove to acquire egitimacythroughreligiousandjuristicchannels s thereforeabundantly bvious. But thiscannot mask the fact that there always remained a point of frictionbetweenworldly, secularpower and religious law. This relationshipbetweenthe two was constantlynegotiated,and it was never devoid ofsporadicchallengesmountedby politicalforcesagainstthe law and itsrepresentatives.This was most obviousat theprovincialandperipheral

levels, but there was a markeddecrease in the frequencyof suchchallengesas theyoccurrednearer he centerof political power. For thecaliph or sultan perceivedhimself, and was generallyperceived, asupholding hehigheststandardsf justiceaccordingo theholy law;andwith this moral responsibility,he generally conducted himself inaccordancewiththeseexpectations.The overwhelmingbodyof evidenceat ourdisposal compelsus toconclude that, as a rule, the caliphs, sultans and their provincialrepresentativespheldcourtdecisionsandnormallydidnot intervenenthe judicial process.16 However,when caliphs or their subordinatesbecameinvolvedin thejudicialprocess-however rarely-it was oftenthe case thatthey did so withinthe standard, cceptable egalchannels.They generallycompliedwith the law, if for no other reason than in

15. AlbertHabibHourani,A Historyof the ArabPeoples224 (BelknapPressHarv.U. Press1991).16. This is borneoutby the fact that he sourcesrecord he unusual, hoseeventsworthyofnote, becausethey stood out from the rest. Biographers nd historianswerenot interested nrecordingheday-to-day outineof the udiciary,and f we knowsomethingabout hisroutine, tis because t oftencreeps ntothoserelatively ew accountsof an unusualnature.Thus,whatevercaliphalor governmentalncroachmentn thejudiciaryhappenedo be recorded n the historicalannalsof Islam, heywerelikelyto havebeenexceptional asesand,therefore,tatistically utofproportiono the-probably hundreds f thousands f-cases thatwent unnoticed ueto thefactthat heywere usualcases nwhich awand he udicialprocess ooktheirnormal ourse.

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JOURNALOFLAW& RELIGIONorder o maintain heirpolitical egitimacy. Yet, it appears easonableoassume that their compliance stemmed from their acceptance ofreligious aw as thesupreme egulatoryorcein bothsocietyandempire,coupled with the convictionthat they were in no way rivals of thereligious legal profession. Instancesof judges deciding in favor ofpersonswho litigatedagainstcaliphsandgovernorsarewell-attestednthe literature,with thelatteracceptingandsubmittingo suchverdicts.17The relative nfrequency f therulers'encroachmentn the legal sphereappears o follow a particular attern,namely,thatsuch infringementswere usuallyassociatedwith cases in which the rulers'own interestswere involved. Althoughthis in no way means that encroachmentoccurredwhenever such interestswere present,it does suggest thatwheneverrulersstaked heir nterest n thejudicialprocess,theyhad toweigh theiroverallgains andlosses. To have accomplishedheirendsthroughcoercionwould havemeantthattheirlegitimacyhadfailedthetest. On the otherhand,totalcompliancewith the law at timesmeantthattheirquestfor materialgainorwill-to-powerwouldbe frustrated. twas this equation hattheyattemptedo workout andbalancecarefully,at times succeedingand at othersfailing. Pre-moder Islamichistorysuggeststhatrulersgenerallypreferredo maintainan equationn favorof compliancewith the religiouslaw, since compliancewas the meansby which the rulingelite could garer the sympathies,or at least tacitapproval, f thepopulaceand ts legalrepresentatives.To saythata ruleof law prevailed in pre-modem Islamic societies, polities, andcivilizations s merely o statetheobvious.Enter he modemlegal reformwhose most significant eaturewasthe transformationhat ookplacein the commandof the law,where thenation-stateassumeda new role. Whereasthe traditional uler,as wesaw, consideredhimself subjectto the law and left the judicial andlegislative functionsand authorityo the legal profession,the modemnation-statereversedthis principle,therebyassumingthe authority odictate what the law is or is not. The ruler's traditionalrole wasgenerallylimited to the appointment nd dismissalof judges, coupledwiththe occasionalenforcement f the qadi's decisions. Interferencenthe legislativeprocesses,in the determination f legal doctrine,and intheoverall nternaldynamicsof thelaw was nearly, f nottotally,absent.In this context, one must not exaggeratethe importanceof theOttoman siyasa shar'iyya and the qanunnames (which were no more

17. See e.g. IbnKhallikan,Wafayat,II,392; and Ibn 'AbdRabbih,al- 'Iqdal-Farid,ed. M.al-'Aryan,8 vols. I, 38-48(n.p. 1953).

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JOURNALOFLAW& RELIGIONwhich brought the administrationof the Empire's major waqfs(charitablerusts)undercentraladministration.21ll majorendowmentsalongwith theirrevenuesandassets-that supportedegal educationandwere supervised or centuriesby the legal professionin the Empire'svarious regions-came under Istanbul's direct supervision. Thiscommandeering f resourcesusheredin a new era duringwhich thejurists gradually ost controlover their own source of power, makingthem heavily dependenton state allocationswhich diminishedin asteadyandsystematicmanner.But this was not all. The chippingaway of the powers of thereligiouselite was acceleratedby the creationof alternativeelites thatbeganto be formedduring he firsthalfof the nineteenth entury.UnderMahmudII, there was already a proliferationof technical schoolsindependent f the religiouscolleges, schools that erodedthe monopolytraditionally njoyedby the religious nstitutionsover the legal system.As if this were not enough,both the Ottomansultans and the localEgyptianrulerscreateda new bodyof legal professionalswho begantodisplacethe traditionalegal elite. Withthe adoption-indeed, coerciveenforcement22-ofWestern-stylehierarchical ourts and law schools,these new elites were easily incorporated nto the emerging legalstructures,while, at the same time, the traditional egal profession,nearlybankrupt ndweak,found tselfunequippedo dealwith thisnewreality. The new courtsoperatedon thebasisof codes, and the lawyerswho staffed them had little, if any, knowledge of the workings ofreligious aw, whetherdoctrinally,udiciallyor otherwise. Onthe otherhand,while the foreign legal elementswere incomprehensibleo thetraditional egal hierarchy,their madrasas, which depended almostexclusivelyon the dwindlingwaqfrevenues,weresystematically ushedaside, and later totally displaced by modem, university-based awfaculties. The traditionalegal specialistslost not only theirjudicialoffices as judges, legal administratorsnd courtofficials,but also theirteachingposts and educational unctions, hatis, the backboneof theirveryexistenceas a profession. Thisloss constituted he coupde grace,for not only did it rob themof theircareersbutalso of theirprocreativefaculties: heywereno longerallowedto reproduceheirpedigree. Theruin of the madrasawas the ruin of Islamic law, for its compassof

21. MadelineC. Zilfi, TheIlmiye Registersand the OttomanMedreseSystemPrior o theTanzimat, Contributiona 'histoireeconomique t sociale de I'Empireottoman309-327 (n.p.1993).22. Cf.NathanJ. Brown,TheRuleof Law in theArabWorld:Courts n Egyptandthe Gulf26-29,33-40(Cambridge . Press1997).

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JURISTICAUTHORITYVS.STATEPOWERactivitiesepitomizedall thathadmadeIslamic awwhat it was.Thus, the demise of the Shari'awas assuredby the strategyofdemolish and replace: The weakening and final collapse ofeducationalwaqfs, the madrasa,positive Islamic law and the Shari'acourt was collaterally,diachronicallyand causallyconjoinedwith theintroduction f state finance(or, more accurately, inancethrough hecontrollingagency of the state),Western-style aw schools, Europeancodes and a Europeanourtsystem.Whathasremained f thetraditionalystem n themoder codes islittle, indeedno morethan a veneer. Penallaw, landlaw, commerciallaw, torts,proceduralaw, bankruptcy, nd much else havebeentotallyreplaced by their Europeancounterparts,and supplemented, n duecourse, by several other codes and regulations,such as the law ofcorporations, opyright aw, patentlaw andmaritime aw. Traditionaldoctrinesare still to be foundin the law of personalstatus,but thesehave been uprooted romtheirindigenouscontext,a factbearingmuchsignificance. As is well-known,one of the modernists' avorite ools isthe methodof takhayyur, amely,pickingandchoosinglegalrules froma varietyof sources.23Thus, the principlesand rules of the marriagecontract, or instance,may draw on more than one Sunnilegal school,expediencybeing the sole rationaleandmotive,with the result thatanarbitraryamalgamationof doctrines make up much of reformistmethodology. For modern egislatorsin Sunnicountrieshave evenresortedto Shi'i law in order to supplement heir civil codes whereSunni law was deemedinsufficientfor their needs.24 And they havebeen daringnot only in termsof the sourceson which they draw,butalso in themannern whichtheydrew on traditional octrine:heyoftencombined, n a processknown as talfiq, severalelementspertainingo asingleissuefrommorethanone source, rrespective f thepositivelegalprinciples,reasoningand intellectual integritythat gave rise to therulingsin the firstplace. This approachs arbitraryn that it does nottake into serious account-as it ought to-the subtle and intricateconnection hatexistsbetweenthe social fabricand the law as a systemof conflict resolutionand social control. These considerations, n theotherhand,were ever-presentn the minds of the traditionaluristsandthe systemthey produced, fact thatexplains heconstancyandstabilityof classicalIslamic awoverthelongcourseof twelve centuries.

23. Sir James Norman Dalrymple Anderson, Law Reform in the Muslim World 34-85(AthlonePress1976).24. Id.

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JOURNALOF LAW& RELIGIONThepointI wish to makeis thatthe transpositionf the commandof the law from the hands of the faqihs (the traditionallegalprofessionals) to those of the state representsthe most importantphenomenonof modemlegal reform,one thatsignifiedsimultaneouslythe eternal oss of epistemicauthorityand the dawningof the much-abhorred uthority f the state. The emergenceof the state as carrieroflegal authority or, strictly speaking, legal power) is seen as doublyrepugnantn Islamiccountriesnot only becausethe stateappropriatedlaw fromthe community-rootedroupsof the religious urists,but alsobecause it had shown itself, for over a millennium,to be an entity

severelylackingin religiosity,piety andrectitude. If Islamiclaw hadrepresentedo Muslimsthe best of din religion)thenthe state stoodfortheworstof dunya (worldlyexistence). Withthe appropriationflaw in the wakeof thereforms, he statehassunk intoeven lowerlevelsof repugnancy. It committeda thirdfelony: it substitutedGod's lawwith a foreignlaw; andto makethingsmuchworse,a fourth elony, itchosenoneother han helaw of thecolonizers o do so.If modernMuslimsare demandinga return o the Shari'a,it isbecauseof theirperceptionhat all these violationshavewreakedhavocwith their lives. The modern Muslim nation-state howevermanycontradictionsmaylie in thisphraseology)hasnot commanded, oris itlikely to command,the conformityof the Muslim masses to its will,much less theirrespect. Put differently, he moder Muslim nationstate failed to gain authorityover its subjects, for authority,unlikepower,does not necessarilydependon coercion. When the traditionallegal schoolsacquired uthority,heydid so by virtueof the erudition ftheir uristswhoproved hemselvesnotonlydevoted o thebestinterestsof the umma whomtheyservedverywell) but also the mostcompetenthuman agency to discover God's law. Their erudition was theirauthority,and erudition implied, indeed entailed, a hermeneuticalengagementwith the divine texts without which no law could beconceived. Thestate,on the otherhand,abandonedGodandHisjurists'law, andcould find no othertools to replace t thanthe instruments fworldlycoercionand mperialpower.

258 [Vol. XIX

Juristic Authority vs. State Power The Legal Crises of Modern Islam-Wael B. Hallaq.pdf

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