Understanding Sharia: Governance and the Rule of Law
by Dr. Wael Hallaq (Professor at Columbia University and award winning author)
[Transcribed from his speech delivered at the College of Islamic Studies (CIS) https://www.youtube.com/watch?v=xpbsxttTATY&t=1935s ]
(Describes the superiority of the Shariah legal and constitutional framework over Modern Liberal Democratic systems. It also shows how the Fiqh Madhabs preserved rule of law and generally prevented manipulation of the law by the rulers and ensured the organic separation of the Legislative, Executive and Judiciary)
There was a recognizably coherent and discursively established tradition in Islam across the centuries from roughly the fourth Century of the Hijra down to the late Ottomans. I would also argue that the formative period of the first three or four centuries and roughly the last two centuries were for different reasons in each case somewhat turbulent in that they did not have the relative consistency and constancy of the middle centuries that is between the late 4th century and the 13th that is in the Gregorian calendar between the late 10th Century to the middle of the 19th.
This does not mean that this middle history the long Middle history was always the same monolithic or repetitious. In fact it went through three General stages of development. But these changes in this long middle period in the history of Sharia as a legal system were organic and did not change the general structure of things. That is, it did not change either its epistemological or ontological structure and, importantly, it did not change its constitutional structures. The cogency and general operative logic of the system remained the same, which is to say that the political discursive tradition in Islam at least in West Asia had a consistent structure of its own and exhibited a systemic continuity throughout.
Now let me make a general claim - one that has to do with history in general and with Islamic political history in particular. my argument has been and continues to be that the history of Islam has largely not been written yet. The history of Islam that we got accustomed to so far is not indigenous and has almost exclusively been written from not just a European point of view but from a distinctly colonialist point of view. So scholarship that you think is scholarship is really much of it is a very sophisticated form of political Venture called colonialism. There was no marked contribution from Muslims in deciding what their history is or was or how it looks like.
We have taken the standard European narrative as a second nature and treated it as if it is the only narrative that is possible specifically this history suffers more rather than less distortions and bias not to mention ideological construction when it is related to certain topics for example the issue of women gender and sexuality has been a hyper sensitive theme in the construction of Islamic history at the hands of Europeans during the last number of decades. The other issue is the central sphere of politics and its related components including questions of course as you all know of democracy freedom and violence or rather the presumed lack of Freedom the so-called Oriental despotism and the violence that Europe attributed and continues to attribute to Islam as if it is a genetic feature all this of course does not seem as ridiculous and hypocritical as it looks today especially after the Gaza genocide but it had acquired a heavy weight and played a significant role since the end of the 19th century to say the least.
Whether it was a deliberate distortion or not, there are at least two problems involved in the past construction of Islamic political history especially its part or side which I am interested in focusing on today that is the side that deals with what we may call constitutional history.
The first problem is one of translatability. The problem of translatability is the problem of how to render how to understand phenomena in another culture, another place and another time when you do not have the same conceptual repertoire, the same terminology, the same words, the same experiences, not even the same facts and same entities that you happen to have and are accustomed to in your own time culture and place.
Put very simply, how do I really understand for example the world of a peasant woman in the sad of Southern Iraq in the 8th Century even if I had extensive data on her life and how she lived on a daily basis. how do I know what she felt how she articulated the world, her conception of herself as a human as a mother as a wife, as a daughter. what was her emotive makeup and especially what she meant when she uttered language terms like for example land, Mountain, life, Justice, love - all these are terms that we think that we everybody use them in the same way actually even within this room I will choose any one of you and I will bet you once we are done discussing the meaning of for example Justice or love we will end up realizing that we mean by them two different things and this is today. imagine in another emotive World, another emotive culture - meaning emotive here the how is one constituted emotion - do we really have any clue as to what she could have exactly meant by any of these terms.
The problem of translatability is a deeply philological problem, a historical problem of first order, and so the fatal mistake that the orientalists made was the failure of not attending to the problematic nature of their approach in terms of this challenge of translatability. The orientalists acted with such a sense of sovereignty that they did not even think that they may be doing something wrong. They just sovereignly decided what Muslims think and what their acts mean without caring to check whether what they concluded could perhaps have missed the whole point all together.
The other problem that made the situation even worse is the orientalist conception of a fragmented history of Muslim politics where 12 centuries worth of political history is reduced to a series of sultanic Reigns peppered with tyrannical events. This history was never seen as a process like an organic body growing across time. It was never seen as a structure governed by underlying patterns and dynamics that operate institutions and is bound by general founding principles - a kind of a Norm if you will - this structural perspective shifts the historians emphasis from a chronological narration of events and specific facts, which sums up the entire orientalist narrative, to a comprehensive systematic systemic and institutional examination of the structures and institutional frameworks that influence and shape political and constitutional conduct. By exploring the structural elements that underpin such historical processes we would be able to gain insights into the deeper forces at play and understand the interconnectedness of various events in ways that we otherwise would not be able to; especially in writing this constitutional history the study of structures is paramount.
Constitutional history has often been confused with political history of events, a mainstream narrative that seems to dominate our minds making for us the chief kind of History we know. In every discussion with Scholars and in almost every class I teach, people interject my Narrative of structure with the reminder that not all Sultans and kings were just some tyrants. my answer and explanation ends up reminding them in turn of how we understand current constitutional systems, especially in Liberal democracies. Just because Americans had the Andrew Johnsons, Nixons and Trumps it does not mean that we can say that the American political and constitutional system is a sham, that it is not Democratic, that the USA is a tyranny. I mean nobody can say really that. The US has an enduring and functional Constitution that despite all disagreements about the critiques of it, is still generally considered democratic to one extent or another, from one angle or another. This modern constitutional system may not survive critical critique, sorry radical critique, or whatever you want to call it, radical critique, imminent critique, but really the critique that I defined in the first lecture, not criticism.
But this is not my point whether it survives or not. That's not really what my point is. My point is that you cannot judge the structure of the American constitutional system by the practices or rather the malpractices and abuses of some of the country's corrupt presidents, judges or even politicians.
In the book I just mentioned, I argue consistent with and in continuation of my argument in ‘The impossible state’ that Islamic political governance had a structure characterized by a robust rule of law in fact more robust than anything we see in modern liberal democracies and that the separation of powers was more delineated and more sharply drawn than we nowadays have in Democratic systems. This might shock some people but that's because they do not know enough really about the Islamic side.
I would like therefore to address three points related to these claims:
- First the robustness of the rule of law.
- Second the quality of the law that rules - these are two different things and
- Third the nature of the separation of powers in Islam.
1. As for robustness of the rule of law there is a serious difference between a law that is substantively and procedurally legislated by the people themselves and a law that is the result of interpreting statements that are ontologically autonomous.
Here we ultimately speak of two very different sources of will - the will to rule or the will to law. The first source is anthropocentric and since the will resides in human beings, the human beings can change them at will. In the Sharia, by contrast, there is a series of principles that are hierarchically organized that make legal interpretation bound by these higher principles.
The attention is always geared in the service of the community, as I explained before, the interest of the Believers “being supreme”. But these interests, just because they are Supreme, do not have an autonomous will that decides for themselves what is and is not good for the community of Muslims.
The fact that a society or culture posit for itself a set of unchangeable higher principles makes it very different from a culture that claims total and unqualified autonomy in determining its own way of life.
But this is not the only important characteristic of a robust rule of law. One of the most important tests for rule of law is obviously the extent to which the law rules the spectrum of 'legal impermanency', ranging from the reasonably unchangeable to total suspension.
In the Sharia, legal change was piecemeal and particularized, reinterpreting very specific cases when they needed more flexibility or new solutions to old problems. This is what I call reasonable unchangeability, because the stability of the law is not to be equated with rigidity or inability to adapt; but with a successful control over arbitrary change, or change due to Will To Power, as we have it in the modern state in the modern period. It is the successful control over the crucial feature of suspending the law when a state declares a state of emergency.
Radical or fast moving change that is a characteristic of the modern State and modern society is prevented by the notion of 'consensus' (Ijma - which itself guarantees the solidity) and authorization of the madhab.
The Madhab (of Fiqh), that is the legal school in Islam, was not just a substantive legal phenomenon that is substantive law but also a constitutional one. That's why most people don't understand that generally the law everywhere, but in Islam in particular (and that's why it is more robust in itself) if it is formed or conceived of or practiced in a particular way, is itself part of the constitutionalization of the system.
The Madhab was one of the most powerful ways of curbing political decisionism that manipulated the law. The Madhab gave the law a sanctity that has no parallel anywhere in modern systems of governance. This explains why the law in Islam always emerged victorious over all political forces even after bleak periods of political disarray or crisis. As, for instance, happened in the last several decades under Mamluk rule when the Judiciary effectively collapsed or when the early Ottomans instituted the 'Qanoon' upon their conquest of the new territories in the Balkans. Not that it is the same like the Mamluks but it's kind of a unique event in Islamic constitutional history that's when they conquered the Balkans, greater Syria, Egypt and the Hijaz.
In these and all other cases - except of course in the case of the systemically destructive European colonization in the 19th century - in all these cases, the rule of the Sharia as the supreme law was eventually restored and really the Mamluk case is the most notorious because in the last 80 to 90 years of Mamluk rule things really collapsed badly but then when the Ottomans came, it's as if nothing happened. It's like everything is back to business. As if this period of 80 years did not almost destroy the material life of Egypt.
2. Second, the quality of the law that rules.
People shout ‘the rule of law’ at every turn, but the rule of law is not everything or rather it is not a sufficient condition for justice. There can be a rule of law without Justice being done. In fact many dictatorships insist on the rule of law, Nazi Germany being a spectacular example.
In order for justice to be achieved the law must not only satisfy the condition of rule of law but also of being itself substantively good, humane, compassionate, tolerant and primarily attentive to the human subject as the final goal. As the subject of the last lecture, and if I were to sum up the findings of my almost five decades of scholarship on this point, I can confidently say that the Sharia scored high on all of these accounts, in fact higher than any modern system of law I know.
This was the gist of my second lecture as I said there is a massive difference between a law that rules for the final goal of creating a regulated ethical life and a law whose final aim is the imposition of order for the sake of increasing 'National' or class power. And that's what we have today. The first attends to the individual and the community. The second to politics and political power.
- Third, the nature of the separation of powers in Islam.
On the surface, it looks as if the powers in both Islam and liberal modernity are the same in terms of division - legislative, judicial and executive. There is legislative power that is separate from the executive and both of these fulfill functions separate from the Judiciary.
My argument however is that:
First, the separation of powers in the modern state is a challenge that continues to plague liberal democracies.
Second, Islam, without an artificial attempt at creating a separation, managed to establish a system of separation because it did not have a unitary state and because of particular deeply theological beliefs which have a direct impact on constitutional organization. (so when somebody tells you theology, never think it's a bunch of abstract concepts that are not related to it. In Islam the connections are less obvious, but if you understand it correctly, it's quite politically potent.)
This last consideration that the modern state is unitary gives rise to the starkest fact about Islam which is my third argument, namely, that the legislative power in Islam was more authoritative than its modern counterpart by Leaps and Bounds.
Before I begin addressing these points and explain what I mean by authoritative, because it can have many meanings, let me say by way of introduction a few things about our modern constitutional predicaments. One of the most fundamental problems in modern constitutionalism is the blurring of lines and overlap between and among the three powers. This often results in conflicts between these powers and gives rise to challenges in interpreting and enforcing the separation.
On the other hand it is widely acknowledged that a strict separation may lead to rigidity and inefficiency, since cooperation between the powers is often needed, if not crucial, for addressing urgent matters. Excessive checks and balances can result in slow decision-making creating difficulty for a government to respond promptly to crisis or enact necessary reforms which are really the constant challenge of modern states. There are always crises and always reforms. There is always something to do for the modern state, if you notice.
There is also the problem of an overactive Judiciary that's yet another problem where the judicial branch concentrates too much power in its hands. A fundamental concern is the question of democratic legitimacy of such hyper activism of the Judiciary in a liberal democracy where presumably popular will is the Supreme value and the cornerstone of governance. Unelected judges strike down laws that have been enacted by elected representatives which is perceived by many influential voices as highly undemocratic. This effectively constitutes a major tension between an unelected Judiciary and elected branches, not to mention the problem of imbalance between the branches.
Finally we cannot overlook what is in my opinion the most devastating critique of modern governmental practices and modes of governance - namely the so-called bloodless constitutional Revolution. So what is this bloodless constitutional Revolution? Bureaucracies are characterized by unelected officials as well as by insulated decision making processes where they themselves legislate adjudicate and execute all at once without resorting to courts or to some organs that are elected. So bureaucracies tend to operate independently of public opinion raising questions about responsiveness to democratic mandates. They are led by professional experts who tend to prioritize technical efficiency and profit over democratic deliberation; caring little about democratic processes.
If we put all these problems together, and there are many more but I don't have time to discuss them, and add to them the flagrant feature of interest groups which we live today very colorfully, especially in the United States - I mean the lobbies or the public affairs committees as they call them - then we understand the problem of democracy in the presumably most democratic state in the world.
Note that all these problems originate from a distinct European history and all of them, except the last that is the bureaucratic domination, are the result of reforms and changes that Europe had to implement in order to avoid the brutal life it lived under a merciless and cruel church and feudal and monarchical violence of pathological dimensions.
The separation of powers is a political doctrine that was strictly a European medication for a dangerous European disease. Reading Islamic constitutional history makes the reader look at this phenomenon as an anomaly, a painful medicine for a strange pathology. This is part of what I meant in my first lecture when I spoke about comparison and contrast as methods of inquiry.
It is important to realize that Islam's constitutional division between the powers was not the result of a traumatic experience or a reaction to a violent and oppressive situation. Separation of powers (or what we have come to call separation of powers after Europe made the issue a universal one through colonization) was in its embryonic origins the result of a fairly basic but fundamental theological one, having to do with God's absolute power of ownership which bestows on him the full meaning and capacity of sovereignty. It was an absolutely logical inference to conclude from this robust doctrine that if God owns the world through the Act of Creation then there is no administrator or manager of the world other than Him. Any such right to decide in the world must thus be a derivative right authorized by him in form and content.
From this logical series one must conclude that if man were to act in this capacity - that is as God's delegate or Deputy - then the ultimate authority of rule and decision is not man's and so the punchline ‘no man shall rule man’. But what does it mean that ‘no man shall rule man’? It means that no human being is entitled to decide for others what law governs them by virtue of himself being either a source of law or even as a spokesman for an authority. Instead the law that governs must be communal and deducible from binding higher principles - two absolutely necessary conditions for laws’ validity - these are always there in the Muslim tradition. This is the summation of the Madhab - a group of associated jurists who, over time, deduce law through a hermeneutical system on whose principles they aggregately agree. A field of semiotics that shines a methodological light on God's Will and exemplarity. The collective doctrine of the madhab also meant that the law came from an aggregation of juristic voices representing the community's will. For it is important to note that a law that comes from above, from a higher authority top down is not the same as one that comes ‘from the people, for the people’ as they say.
The jurists (Fuqaha) of early Islam who articulated the Fiqh, the substantive law, came from the populace. They lived among common people as part of these people and on average they belonged to what we call today middle or lower middle classes. This is the first two or three centuries when the law was formed in substance - after that it's too late for the law to become suddenly seriously bourgeois or marxian with marxian kind of analysis, although many people think that still marxist analysis, like power analysis of Foucault, are applicable to Islam.
A great many of them (the Fuqaha) were Artisans, Craftsmen and Shop owners while some were small merchants or the like.
The jurists were authorized as jurists because the basis of their competence was the very knowledge of the law, which is why the law is known as Fiqh - meaning understanding. Fiqh is to know the law and know it in the most ethical way. That is through a non separation of knowledge and ethics, between law and ethics which constitutes the very authority of the juristic voices. Which means that the law must always issue from an epistemic moral source, not a political one.
I cannot emphasize for you the fundamental importance of this principle. The implications of this principle are staggering. This means that if a Khalifa or a sultan pronounces on a legal matter then the basis of his pronouncement is not political but rather legal. For, it is his own personal knowledge of Ijtihad that makes what he says legitimate. That's why the Ottomans, in order to be able to have any real legal power, had to bring the Shaikh al-Islam and put him in the capital.
The Shaikh al-Islam could even depose and execute Sultans, which he did. I mean not one, a series of them. So there was always price for the sultan to have a little bit of say in the law. He had to depend on the figure of the Shaikh al-Islam. Look at how the circle goes. They couldn't escape it. There was no way of escaping the Sharia - and why - because it was the rule of law. It constituted the ultimate master because it was a culture, it was a habitus.
But this legislative competence was not located in a narrowly defined body in the way our Parliament and congresses are defined nowadays. Because of their paradigmatic learning and ethical exemplarity, the jurists were the custodians of religion as represented in the Hadith: “The scholars are the Heirs of the
prophets”. One can then say that the so-called legislative has defined Islamic identity.
Notice here, in the three branches of power, the legislative is the most important one in the Muslim tradition. It defined the Islamic identity - what is and what is not Islamic, how to go about living in that particular way. It was in other words constitutive of what we might call ‘Islamic culture’ as I emphasized several times. This is why I insist that the Sharia is the culture writ large.
The cultural and Madhabic basis of the law therefore guaranteed the total autonomy of the legislative, making it immune to political intrusions. The Sultans may violate the law but they could not ignore or replace it. They may violate the law but the law stood as their judge and the ultimate Benchmark of Truth. In other words the law stood above anything a king or an emperor did or said, decreed or commanded. The separation between the legislative and the executive - the most important part of the 'doctrine of separation' - was therefore not only natural and organic but also provided a robust model that transcends the modern meaning of separation exponentially.
Suffice it to say that hundreds of Sultans came and went yet none of them even entertained the idea of suspending the Sharia and much less substituted with a law of his own. Now of course, the modern State as you know, suspension of the law is part of what we call the Marshal State. Any state can under pressure resort to this, without any Sultan who said, “oh no let's suspend the Sharia. Now it's my law that applies you cannot do anything in violation of this limited law.” That has never happened and was inconceivable.
To this picture we must add elements that are not structural but historical. So far we spoke about the structure of the legal in Islam. But structures are affected by their environments and the more drastic the force of the environment the more the structure is affected and changed in some way. What I have in mind is the interesting fact that during the third Hijri century Muslim rulers started bringing in mercenary forces to constitute their armies. This process reaching its pinnacle in the Mamluk Dynasty.
The introduction of foreigners helped in fortifying the separation and therefore the autonomy of the Legislature. Because these soldiers did not have any cultural or religious claims beyond their executive function. Foreigners who came to rule as the business of rule like dynasties specialized in rule and so they did their rule and they didn't bother with the rest of it. ‘Rule’ meaning to provide security, internal and external, and a few other things like taxes. That's the bottom line. And of course they also went to war and gathered booty. But the point is that because they were foreigners it strengthened the concept of separation and the executive became even more separate from the legislative.
This brings me finally to Executive competence. Let me begin by nuancing the sultanic power to legislate. As I said a sultan, a khalifa or for that matter anyone else, including simple farmers and blacksmiths may exercise Ijtihad if they have the necessary juristic training meaning the knowledge, the Ilm. But if they do so they would not be acting in their capacity as Sultans, Caliphs, farmers or peasants but rather as Mujtahids of one level or another. Sultans and Caliphs did have the right to exercise their own discretion, something that was also called Ijtihad, within a restricted sphere of responsibility. I cannot emphasize enough to you that this sphere was always defined by the Sharia and it is this sphere that was the most significant arena to debate constitutional boundaries.
The sphere that was defined by the Sharia, that is the realm of executive governance, consisted of general categories that remained unchanged ever since they were conditionally identified in Mawardi's seminal works which he articulated as a schematic summary of Islamic juristic doctrine and practice. This is what I call administrative and military practice. What interests me here is the comparative thinness of this administrative or bureaucratic practice compared to today’s bureaucratic administrative intrusion which is set to dominate over popular will as I spoke before. The Islamic parallel is a drop in the bucket.
But let's look at the sultanic duties and functions, namely the executive functions.
The first is ‘Hifz ud Deen’ that according to one of the most influential exposes of the sultanic functions and which were adopted by many many jurists for centuries and it is by Mawardi himself, the great Mawardi. That is Preservation of religion.
Significantly, this preservation must proceed according to the way the religion has been established and sanctioned by the predecessors, the way the tradition has been established. Politically, this is intended to reassert the supremacy of the Sharia over the interpretive and legislative impulses of the ruler, a constitutional act of first order and one that Mawardi as well as every other political Muslim writer insisted on. The implication here is that the ruler is not to initiate any divergent interpretation of the Sharia and must not let any other person or group engage in it either.
Preservation of religion presumes another requirement to the effect that the Sultan's function includes the diligent application of Deen with a view to making it a praxis. Not just practice but a praxis - something that you do regularly as a ‘technique of the self’.
The second requirement relates to domestic and (third) external security including protection from heretical groups that are seditious and destructive.
The fourth is levying taxes according to the dictates of the law while maintaining proper conduct in the process of collecting and redistributing them. Of course, quite often this was violated but then there was always a friction and a sort of legal militancy to bring them down.
The fifth is to administer Sharia and Mazalim in a just and fair manner.
The sixth is carrying out the complementary ordinances of the Quranic Hudood.
Finally the sultan must elect trustworthy and competent officials who will act as his deputies in running the affairs of the domains. This requirement implies that the duty of responsibility as well as the accountability in administering the polity, so he cannot just let things run loose.
These seven requirements sound like just general theoretical prescriptions but interestingly if you decipher the literature well you realize that each one of them constitutes the exposition of books or fields of knowledge. For example the protection of the Borders translates into what really is the entire extent of the discourse on Jihad - meaning international law - how you fight, the laws of warfare, etc., etc., which seem to me - now it's interesting - that it seems to me that they are much more honorable than anything we see today.
Notice that this if you look at the seven carefully that none of them, none of these functions, intrude on the legislative. They don't involve legislative functions. You know, the executive executes.
Finally, it is easy now to understand the Constitutional place of the Judiciary in Islam. Because of the nature of knowledge and ethics the executive can never make law. It can only give administrative pronouncements on the seven executive fields I just enumerated. Which means that it cannot dictate to the Judiciary the substance of the law that the latter applies in their courts.
The only exception to this are the Ottomans who kind of pushed the jurist in the hierarchy of the Empire, not everywhere, but the judicial hierarchy of the Empire to apply certain rules within the Madhab. That's the most radical interference in the Sharia. But that still is not the Sultan's law. It is just simply the Sultan's preference for one of the opinions or options available within the Madhab, within the Sharia. Only the legislative culture as a sociology of knowledge can supply the personnel to serve in the Judiciary. The substantive loyalty of the Judiciary was therefore to the legislative. The Judiciary was only appointed and dismissed by the executive. And so, in so far as the technicalities of appointments and dismisses were concerned, it was the executive that held sway.
These were the fundamentals of the system and because they were fundamentals they endured until the beginning of the 19th century. With colonialism, everything changed. The legislative was destroyed and the executive held almost total power. This is the key problem of modernity, that this balance, this ecology I've been describing disappeared in the 19th century because the executive took over the legislative. So the legislative collapsed totally. Where people wonder what happened to the crisis in modern Islam and the crisis of this and the crisis of that. This is fundamental to what happened to Muslims in the 19th century. The ecological balance developed in Islam since the Quran saw light in Mecca now underwent systematic and systemic destruction. But this is only half of the story, half of the destruction. The other half occurred when Muslims were converted to the colonialist orientalist narrative, to this new doctrine. Accepting to read their own history through the prism of colonial officers and colonial scholars who spoke about Islam and Muslims as human animals and effectively treated them as such.
