Islamic Law and the Challenge of Modernity

American Journal of Islam and Society, 2001

SSRN Electronic Journal, 2006

ON THE SPECIFICITY OF MIDDLE EASTERN CONSTITUTIONALISM * Chibli Mallat † I. INTRODUCTION René Maunier, a prolific French ethnologist and jurist (1887-1951), summed up in 1935 the radical transformation of Middle Eastern law since the nineteenth century. In a brief report entitled Outline of the Progress of Law in Muslim Land, he noted the centrality of law in the immense change affecting the societies of North Africa that he knew: "Amongst the social changes which can take place, one should put first legal changes. In Islamic countries, there have been sometimes, over more than one hundred and fifty years already, a transformation of legislation, and a transformation of jurisdiction: new laws, new judges. This transformation (which was at times evolution, at times revolution) is an important occurrence, which can busy an investigator who is at once a jurist and a sociologist. Rara avis!" 1 The sociologist, of course, is not the only social researcher concerned with the irruption of new laws and new judges in "the age of codification", 2 replete as it is with statutes and codes. Political scientists and students of "government" have been naturally concerned with the emergence * Presented at the "Rebuilding Nation Building" Symposium at Case Western Reserve University School of Law, co-sponsored by the Frederick K.

From the last-quarter of the 19th century to the present day, Muslims generally, and Muslim legal scholars specifically, have debated the scope of legitimate change to the historical doctrines of Islamic law. Champions of change have stressed the importance of Islamic law as an interpretive project -- one rooted in legal judgment (ijtihad) -- to justify even radical departures from a broad range of historical doctrines. This paper, originally delivered as the Noel Coulson Memorial Lecture at the School of Oriental and African Studies, while supporting the reformist project, argues that reinterpretation of the material sources of Islamic law is not likely to be an effective tool for realizing wide-reaching reform of historical legal rules insofar as interpretation is an inherently subjective enterprise and is incapable of producing a single, unique answer to a particular legal problem. While reformists can advocate for a new position, even one that is radical, they are not in a position to claim that other interpretations of the material sources of Islamic law are erroneous. What is instead need is a theory of the state that provides morally compelling reasons to comply with law independent of whether such laws correspond to a person's subjective interpretation of the material sources of Islamic law. This paper argues that Sunni jurists in the late Mamluk/Ottoman periods had, in fact, developed an implicit theory of the state that would allow it, provided certain substantive and procedural conditions were met, to promulgate morally binding (from an Islamic perspective) positive law that was established primarily through political deliberation rather than the juristic interpretation of the material sources of Islamic law. This implicit theory of the state was based on a relationship of agency between the ruler and the ruled, thereby generating principles of public law that were suffused with the representative and fiduciary ideals that constituted the private law of agency and of natural guardians. This article shows how Sunni jurists adapted the law of agency and fiduciary law more generally to create rules regulating the powers of public officials, with the result that one can speak meaningfully of a body of Sunni public law which, among other things, creates a distinctively public sphere in contrast to the private spheres of individuals, affirms the principal of limited government insofar as the authority of public officials is limited to the public sphere, and imposes on public officials a duty to act exclusively for the benefit of the public by virtue of the representative and fiduciary position public officials occupy vis-a-vis the public. Sunni public law did more, however, than limit the potential for arbitrary government action. Because public officials were understood to represent the public, their lawful exercise of discretion generated positive rules that were morally binding on individual members of the public, precisely in the same fashion that the lawful actions of a private agent morally bound the agent's principal. The article concludes by arguing that democratic government, insofar as it best manifests the representative and fiduciary ideal of Sunni public law, affords a much more efficacious path to legal reform than arguments for legal reform based on a reinterpretation of the material sources of Islamic law. This is because the morally biding character of lawful decisions of the government does not depend on the subjective agreement of individuals to the government's interpretations of Islamic law, while the morally binding character of rules derived by legal interpretation does. Accordingly, reformists would be better served pushing for representative and democratic institutions in the Muslim world rather than advancing revisionist conceptions of Islamic law based on highly-contestable hermeneutic theories. The published version of this article can be found at 18 Yearbook of Islamic and Middle Eastern Law (2013-15), pp. 44-90.

Islam and Civilisational Renewal, Vol. 4 No. 4 (October 2013), 2013

The article advances the argument that Islamic law, more than a mere legal system, represents a legal tradition. A legal tradition stands at the heart of civilisations generally, and Islamic civilisation particularly. Constitutional design in Muslim states must have this backdrop in mind because modern constitutionalism is typically carried out within the framework of modern nation-states, instead of civilisations. The danger then is that the constitution may end up as a kind of “fiat constitution”. By excavating the historical and philosophical foundations of the modern constitution, the article then shows that the very idea of constitutionalism itself actually accommodates the idea of legal tradition, but unfortunately in practice, it is often ignored when designing the constitution of Muslim states. The article also identifies six core constitutional fault lines of contemporary Islamic civilisation, areas which are most vulnerable to conflicts.

NYU Journal of International Law & Politics, 2017

In early 2011, a wave of uprisings swept through the Middle East, ushering in a year of protest and radical change. The events came to be known as the Arab Spring and forever altered prior conventions. One outcome was the initiation of a vibrant discourse on Islamic law's stance regarding revolution. It juxtaposed two sides: advocates for the status quo and agitators for change. The first group rejected any opposition to the state, especially the executive. The second wanted a new path that would encompass the public's desire for freedom, dignity, and justice. These were the underlying values of the protests and, along with the legitimacy of protesting itself, proved to be highly contentious. In particular, a fierce debate about these values ensued among jurists of Islamic law. Hoping to capitalize on the potency of religious law among sizable parts of their populations, governing authorities dispatched sympathetic Islamic jurists to delegitimize the uprisings. In response , other jurists from across the Middle East issued fatwas (advisory legal opinions) advocating for continued protest. These protesting jurists faced a daunting task: develop new meanings to facilitate rapid legal change while deriving legitimacy from tradition. In the process, they gave life to a new Sunni legal discourse on non-violent revolution. This Article identifies two types of pro-uprising legal arguments that emerged in this period: textual and policy-based. By focusing on fatwas from 2011, the first year of the uprisings, this Article will demonstrate how jurists pursued both formalist and realist approaches to legal interpretation. They crafted creative approaches to remain firmly within "conventional" Islamic law and its reasoning, while also exploring unconventional avenues to fortify their arguments in favor of protest. By showing how jurists brought new readings to Islam's constitutional sources, expanded the category of legal obligations, and incorporated aspects of a contemporary rights discourse, this Article provides new insights into how rapidly Islamic law can adapt to radical change in the world it inhabits.

Boston University International Law Journal, 2013

Die Welt des Islams, 2016

This article examines the question of whether theSharìah is compatible with the principle and procedural form of western constitutionalism. The article will answer this question by looking at the arguments put forth by opponents of Islamic constitutional law and various counter-aguments. Using the substantive approach, I assert that theSharìah is compatible with constitu-tionalism. This position rejects both the fundamentalists' and the secularists' views on this subject. TheSharìah's principles can be a formal source or an inspiration to a constitution.