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Harvard law professor Noah Feldman has written extensively on law and religion issues, and with U.S. government sponsorship he played a significant role in the preparation of the Iraqi constitution. In a series of provocative articles in the New York Times Magazine, Feldman has also challenged modern notions of secularism and has advocated a greater role for religious law, including, most recently, shari‘a. I put six questions to Noah Feldman on the basis of his new book, The Fall and Rise of the Islamic State.
1. You write, “A Muslim leader governed according to God’s law, expressed through principles and rules of the shari‘a that were expounded by scholars. The ruler’s fulfillment of the duty to command what the law required and to ban what it prohibited made his authority lawful and legitimate.” It struck me in reading through this section how comparable the concept was, structurally, to the notion of the Christian ruler in Europe, from the Middle Ages forward, even into the counter-currents to the Enlightenment in the nineteenth century. Do you agree, and if so what caused political thought in the Islamic world to develop on so different a trajectory from the mid-nineteenth century?
In Europe there always lurked in the background the Roman idea of the prince who was above the law (legibus solutus), and subjected himself to law by choice. In the Muslim world, by contrast, the ruler was always subject to the law–arguably much closer to the contemporary ideal of constitutional rule. In the nineteenth century, the Ottoman Empire started reforming along Western lines, and many Middle Eastern countries ended up with dominant executives essentially unfettered by law.
2. Orhan Pamuk, in his novel ‘My Name is Red,’ set in Istanbul in the 16th century, gives a vivid example of legal indeterminacy in the Islamic legal mode–he presents what we would call a case of intestate succession, and shows how competing interests connived to identify their own judges and secure their own verdicts. His tale is set in Istanbul proper in privileged circles close to the court, and his analysis finds not a lack of access to justice, but rather too much, with unpredictable and inconsistent results. But the indeterminacy question doesn’t seem to get much attention in your book. Is it not, however, one of the major problems with the traditional Islamic legal model?
I love Pamuk’s novel! And yes, Islamic legal theory always recognized some indeterminacy in the human interpretation of God’s law (what my colleague Baber Johansen calls “contingency in sacred law”). Indeterminacy is an inevitable feature of a legal system based on interpretation, as is the common law or U.S. constitutional law; and in general it is a price we are willing to pay in exchange for flexibility and the law’s ability to develop to meet new challenges. When Ottoman reformers sought to reduce legal principles to rules in a legal code, they disempowered the scholars who, it turns out, were key figures in keeping the ruler responsible to limits. So codes and their specificity have risks, too.
3. You argue that “the paradigm of the executive as a force unchecked by either the shari’a of the scholars or the popular authority of an elected legislature became the dominant paradigm in most of the Sunni Muslim world in the twentieth century.” This seems right to me to an extent, but it neglects the Islamist critique, namely, that these governments are corrupted and weakened by their dependency on hegemonistic European powers, first the imperialists in the period through the fifties, and then the bipolar world that emerged thereafter. Wasn’t it the overweening role of secular foreign powers that provided the basis for the delegitimization of these states, much more than lack of real legislatures or a mutually reinforcing relationship with the scholars?
I’d say it was both. Dependence on foreign money, whether in exchange for oil or for a friendly foreign policy, certainly makes a government non-responsive to its citizens, and that costs it legitimacy. But part of the reason these governments could get away with being so non-responsive is that the force in society that traditionally criticized them (albeit quietly) and called them to account had been weakened to the point of irrelevance. The two kinds of illegitimacy worked together.
4. The last section of the book is entitled “Rise of the New Islamic State,” but I struggled to locate this rising new state on a map. You make clear that you don’t equate the “new Islamic state” with Iran, although you discuss that model. But since there is no “new Islamic state,” what is rising here other than an idea?
The new constitutions of Iraq and Afghanistan, despite being drafted in the shadow of U.S. occupation, both make Islam the official religion and shari‘a a source of law; both also bar laws that contradict certain aspects of Islamic law. These are democratic and Islamic constitutions. And whatever their many flaws, they are the two constitutions most recently drafted under relatively free conditions in the Muslim world. (I don’t count Musharraf’s unilateral amendments in Pakistan.) This raises the question what other majority-Muslim states would do if they were redrafting their constitutions under popular influence.
5. Even taking the new Islamic state as an idea, is it consistent, programmatic, realizable in any meaningful sense? I thought in opening up your book that I would find an attempt to distill from current writing an outline of this state–as we can, of course, say that there is a concept of an Islamic Republic in Iran. There are groups, such as Hibz ut-Tahrir, which have certainly offered a programmatic outline of a new Islamic state, but it seems tough to say these groups really exercise any meaningful influence. Other more radical groups use the phrase as a sort of slogan. Can you build a state from slogans?
State-building is one of the hardest tasks there is, and slogans don’t cut it. Most mainstream Islamists who embrace democratic means of gaining power have an underdeveloped sense of how they’d govern. In Iraq you can see in outline one way of doing it: the Shi‘i clerics are on the sidelines, not generally holding office, but they exert an influence over what laws are passed. The Islamists face long odds of building effective institutions that can actually deliver the rule of law, but they will continue to receive popular support until they have a chance to try. If they fail, that support will dry up.
6. In the ‘New York Times Magazine’ from March 16, you published a provocative article which seems straight out of this book. In it you refer to the Archbishop of Canterbury’s recent proposal to allow the use of shari‘a and Jewish law in voluntary family and arbitration courts, and then make the argument that “millions of Muslims think [shari‘a] means the rule of law.” Of course, the archbishop’s proposal is something quite modest, allowing a voluntary alternative dispute regime on an opt-in basis. But isn’t the first problem in accepting shari‘a as the rule of law coming to a simple agreement as to what shari‘a is, and isn’t it unlikely that 1.2 billion Muslims will accept what an American law professor–or anyone else–thinks it is?
I used the reaction to the Archbishop of Cantrbury’s speech to highlight the huge difference between what Westerners think shari‘a is and what many in the Muslim world believe. Of course there is great variation on this question among 1.2 billion Muslims, as there is on almost everything. My goal isn’t to tell anyone in the Muslim world what they should think their faith teaches. It is, rather, to help explain why there is so much support for the idea of shari‘a in so many Muslim countries – and to explore how the past and future of Islamic government illuminate the debate.
Buy Noah Feldman’s The Fall and Rise of the Islamic State at a bookstore near you or online here.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
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Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
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