Knut S. Vikør
University of Bergen
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Globalization is not a recent phenomenon. The history of the Islamic expansion and the idea of an 'Islamic world' beyond any individual state, must be considered an early form of 'globalization'. However, the problems of integration of the 'global' and the regional - today we would say 'national' - also existed in the early period. One result of this was the particular, perhaps anomalous, form in which the Shar'ia, the Islamic law, developed independently from those whose task it was implement it. Thus, to study the history of this development can give some insight into how 'globalization' formed the early Islamic world.
Today, many radical Islamist groups raise the slogan of making the Shari'a the law of a new Islamic state. For most of those who put forward this demand, it is simple and straightforward: The Shari'a determines Muslim behaviour. Therefore a state for Muslims must implement this law.
But is it really this straightforward? Can the Shari'a fit into modern society? Many modernists say no, because the various regulations and rules of the Shari'a were made for different social conditions, and a modern society must have different laws - some even deny the applicability of a religious precepts onto the field of law.
However, even if we disregard such dissatisfaction with the perceived contents of the Shari'a and assume for the argument that it is good and desirable to implement this law, the question remains: Is it possible? Can one actually make the Shari'a the law of a Muslim state of today without in the same process destroying the very foundations of the Islamic law?
The question should be essential to the theoreticians of the Islamist groups, but is also of interest to the outside observer, because it can illuminate both something of the nature of Islamic law, and perhaps also cast some light on the Islamist groups in question. [1]
This in contrast to most current legal systems in the world, where the law is defined as systematic set of paragraphs and sections that is written down in what we call a law code. This code is normally written and authorized by a specific body, elected or otherwise: a legislative assembly. Because the Shari'a does not have such a specific form, it is known as an uncodified law. [3]
With the establishment of the modern 'nation-states' throughout the world in this century, all states have based their legal developments on codified laws. This includes the Muslim states, [4] all of them have legal systems based on a structural model inherited from Western world, applied by jurists trained in law faculties where the Shari'a have little or no impact. [5]
The integration of the Shari'a into such a modern or westernized codified legal system evidently creates a number of logical and political problems. This is true both for those modern states that try in various ways to integrate elements from the Shari'a into the exisiting codiefied system, and for those revolutionaries who want to discard the western-influenced law altogether and 'make the Shari'a the only law' of the modern state.
Another, more historical, way of explaining the lack of codification, is to look at the nature of authority. In most societies, the field of law is closely integrated with political rule; the monopoly of force that is conferred upon the ruler by a system of law is one of the definitions of legitimate political power. The legal system is an executive branch of the state.
In this, however, the Islamic legal system is an anomaly. It developed independently and often in opposition to the power of the state. The legal scholars (fuqaha') were in theory, and in the early period also in practice, recruited, educated and functioned quite autonomously from the ruler. In fact, the body of scholars, including the fuqaha', may well be considered to be a or the 'civil society' of the early Islamic period. Certainly, if we make a dichotomy between 'state apparatuses' and 'society', the scholars belonged in the latter category.
Why this division appeared is a matter of dispute, and is related to the precise dating of the development of the Shari'a. Clearly, the Shari'a is based on a continuity of scholarship from the time of the Prophet and the Companions. However, it may be reasonable to say that the formulation of the law in the way we have it, in four separate but similar law systems (madhhabs), was finalized only around or after 900 AD, perhaps even 950. [6]
Such a late dating would help explaining why the law became independent of the state, because in 950 there was no unified state left in the Islamic world. The Abbasid caliphate had been in decline for most of a century, and finally disappeared as a political force in 936. [7] The once powerful empire was divided into many petty states, some shi'i, others formally recognizing the caliph's person, but not his authority, both independent in their political systems.
But Islam remained a universal force. The civil society, thus the scholars, now was the common unifying factor of the Islamic world, they represented the umma that the caliph had lost to the petty rulers. If the scholars were to link the law to the power of the ruler, and seek confirmation and legitimacy for any particular interpretation or variant of the law from the state, then that interpretation or variant would only have been valid whereever that ruler had power. To do so, would be to split the law into regional variants - and shortlived ones at that, as the dynasties and political entities changed in rapid circulation. This would be an unthinkable situation for a law based on God's will. Therefore, the law had to remain in the hands of the independent scholars, who were an 'international' or interregional class, learned men moving from city to city without regard for political boundaries and rulers.
Thus, if Islamic law had been finally formulated two centuries earlier, when the early Abbasids or even the Umayyads held sway over a mostly unified empire, the situation might have different, and the Shari'a might have become a caliphal law, set down in an authorized book. [8] As it was, the usage of political power - the state - to authorize the law was impossible, and the scholars took over this task. In doing so, transforming the conclusions of any individual scholar into a communaly accepted law, they required a certain apparatus, a methodology, which came to be known as usul al-fiqh.
The first is the text of the Revelation, the Book and Prophetic Sunna, which is the raw material or the actual 'source' for any rule. The second is the process of formulating general rules (ahkam) on the basis of this raw material. In this process - which has the general term ijtihad - a very common method is qiyas, which is not just 'analogical deduction' as it is sometimes translated, but the distillation of general principles ('ilal) from the specific cases mentioned in the Text. But many other techniques can also be used in the formulation of legal rules. [10]
However, such elaboration of rules is clearly a human endeavour, and error-prone. Indeed, a great variety of formulations can be made concerning each case, and disagreements abound among the jurists. To say that all these views are of equal value would make it impossible to apply the rules. Then anyone could find a variant that suited himself, and there would be no way the judge in a courtroom could know which variant was the correct one that he should base his judgement on. To be operational, a decision would have to be made between the possible variants saying that one was authoritative, and the others not.
The problem was that, not only were there no external political authority that the scholars could refer to in such matters. They also did not have any internal system of authority amongst themselves, a scholarly or religious final arbriter. The Shi'is later developed such an authority structure, [11] but the Sunnis did not and still do not. In the absence of such a hierarchisation, there was only one thing they could seek recourse to, and that was the 'general agreement among the scholars', or consensus, ijma'. This, then, became the final stage in the elaboration of the legal rule, the confirmation of one particular variant through common agreement. [12]
Textbooks mostly refer to ijma' in another meaning, as an source for knowledge of God's will independent of the Qur'an and Sunna through the unanimous agreement of the community. However, orthodox opinion soon came to that consensus must in fact have a basis in the Text; and in any case, a total consensus (among all Muslims or all scholars without a single opponent) could in practice only have occured at the time shortly after the Prophet and reported in the hadith, or concern issues that were so evident they could not be disputed, thus only confirm existing knowledge.
We are thus far from the absolute authority of either God, Caliph or Pope, only a majority opinion among an amorphous body of scholars. As the madhhabs developed, however, this authority was strenghthened in various ways. The most important one was to focus on the word qualified scholars. Who is qualified to formulate the rule, and who is qualified to challenge an apparent majority view? Over the centuries, the perceived status of the early jurists of Islam, and in particular the four men after whom the madhhabs were named, Abu Hanifa, Malik, al-Shafi'i and Ibn Hanbal, were raised to ever greater heights. From being scholars well versed in content and methodology, which other scholars would agree with but on occasion disagree with, these four became almost superhuman in knowledge and understanding, to which no man in a later age could possibly raise an objection. This went so far that counter-anecdotes came into circulation, quoting these imams to say that were in fact just humans, prone to error - similar to hadith on the humanity of the Prophet. [14]
This elevation of the status of four founders, and by implication their closest pupils, had the effect of granting the books ascribed to them, the ummahat of the schools, a special and undisputable status. It also restricted the latitude of later majority or minority opinion in the school. Anything found in the ummahat was untouchable, and reference to these or commentaries on them became important or essential in later juridical debate. Following this, the qualifications of later scholars were also subjected to a graduation, always with the result that contemporary, and thus active, scholars were pushed down the scale of competence. [15]
This was a process of cohesion that made the school's body of legal rules more dense and more authoritative. The less a contemporary scholar could challenge a rule, the more practicable the rule was in a court of law or as a guideline for Muslim behaviour. By the late Middle Ages, this process had come so far that compendia of the legal rules for each school, mukhtasarat, were produced. [16] Unlike earlier books of law, these were not academic works presenting all different views on a topic of dispute, but simple statments of 'what our school says' about each topic and situation, to aid the judge. Thus, these mukhtasarat are probably what come closest to our idea of a law code in Islamic law, and in many instances the judges would use them as such: he might base his ruling by the single reference to the Mukhtasar of Khalil, in the same manner that a European judge would base his on the single reference to his country's Code of law.
But there are differences. For one thing, the authority of the mukhtasarat is informal. No-one asked their authors to write them, or stamped them with their approval; their value is only based on the community (the school's) acceptance of them. Also, they are not final or absolute. A judge does not have to base his judgement on a mukhtasar, he can look for and find other sources within the school, and in difficult cases he would ignore the simple rules of the mukhtasar and go directly to a mufti or other higher source of authority.
Nor did the formulations of these compendia stop the legal developments in the school. On the contrary, the reformulation and sophistication of the legal rules continued, albeit in a more circumscribed form, through fatwas, legal opinions given by recognized scholars. Such fatwas would have to conform to the consensus of the schools, but could redefine this consensus to fit what the mufti wanted to say. A single fatwa, although it is a formulation of a legal rule, is not binding on other scholars, thus not every fatwa became law. But opinions that were accepted by other scholars would be preserved, refined and included into the ever developing juridical literature of the school. In this way, the fatwas could make the transformation into positive law, by the practical application of agreement from the body of scholars within the school. [17]
Nor did it help that the Shari'a, as it developed, was not very well adapted to certain important legal fields. Being based completely on an adversarial model, where all cases must be initiated by a plaintiff raising a complaint against a defendant, it had no concept of public prosecution. [18] Also, the procedural rules of evidence were very strict, requiring either multiple eye-witnesses or confession. Although these rules were probably not always followed to the letter, they were often applied rather strictly, which could make it impossible to get a conviction in a criminal case even in obvious cases of guilt.
The result was what we may simplify as a two-polar system. On the one hand was the class of scholars and the Shari'a, however they defined it, which was the source of legitimation. On the other was the sultan, the ruler, who alone had the power to force the implementation of the law. In between was the court system. It came under dual influence, sometimes with separate or opposing norms for how one and the same judge (qadi) should practice, at others a system of different courts, some directly under the Sultan and his representative, others governed fairly autonomously by the qadis. [19]
In the latter, the the Shari'a legal rules and procedure were most often applied as stipulated in the law books and accepted opinion. In the former, the Sultan would judge under what was known as siyasa shar'iya, legal policy, which found its legitimacy in the Shari'a and was meant to embody the spirit of the Islamic law, but was freed from the precise wording of the rules and the restrictive procedures, and through which the ruler could effect sanctions of crimes that the Shari'a system was unable to handle. Here the Sultan could do more or less as he pleased, within the strictures of what society at large would accept.
There were evidently fluid boundaries between these two systems; qadis and muftis most often participated in the sultan's court, and the sultan and his police no doubt generally believed that they were applying the spirit of the Shari'a, only with some greater latitude. Most often this must also have been accepted by society at large. But the point for us here is that in much of Islamic history, the actual legal rules that we can find in the juridical literature were at most a source for inspiration and an ideal model, not something that was ever put directly into practice. In particular the criminal law was an area the sultan would be most keen to keep under his control. [20] It is unlikely that there was ever a system where capital punishment was applied without at least the participation of the political authorities.
One important change was that the new laws they introduced were codified laws on a European (mostly French) model; however, those regions that had been under the Ottoman empire knew of the existence of the Kanunname, a body of semi-codified law that should 'supplement' the Shari'a. The most crucial change was that unlike the Kanunname and the siyasa shar'iya, European law made no reference to the Shari'a as an inspiration or ideal. Thus the theoretical link and legitmation to religion was broken.
If we accept that the change from 'old' to 'new' was less a break than a transition building on non-shar'i elements in the classical period, it must have effects on our understanding of this dichotomy. Is this a transition from a 'religious' to a 'secular' law, as is often seen as the sign of 'modernity'? That may be debateable. The Shari'a is not strictly speaking a 'religious' law, in that it covers both the religious sphere (man's relation to God) and the non-religious sphere (man's relation to man). It even has a conceptual dichotomy for this, the first is 'ibadat and is considered eternal and unchanging, the other is mu'amalat and can, so say many classical writers, change with the social and historical circumstances. [21] Only the second of these concern the courts in practical terms.
Thus, the Shari'a as a law of the courts, is a law concerning secular matters. To say that 'everything is religious in Islam' and thus deny the existence of secular matters is just a play with words. A murder, a land contract, a sale of apples is as secular in one cultural system as it is in the other. Thus the objects of the mu'amalat rules are secular, and the way they deal with them is secular. What is religious is the legitimation: The Shari'a is ultimately based on the authority of God's revelation. In this respect, the Shari'a is a religious law. But in every other, the mu'amalat part of the Shari'a is a secular law.
However, there are other differences that have more direct consequences, and which are linked to this legitimation and to authority. One important one is the issue of territoriality. In the Western legal system, we can imagine laws to be of one out of three different kinds:
(a) a national law that is effective within the territory of one state. This is of course the most common situation: The law is valid for every person residing within that state. Whether or not the law is equal for all within that territory, its validity ends and begins when one crosses the state's borders.
(b) an international law, based on agreements between states that they shall behave according to certain rules in their interaction between each other, and that they shall agree to abide by the decisions of certain international legal bodies.
(c) universal human rights, which are absolute, basic rules that are not dependent on international agreements, and which it is the duty of the 'world community' to implement even against the will of the state in question (they can also be based on the states' adhesion to international agreements, but their legitimacy goes beyond this).
The Shari'a does not fit into any of these three kinds, because it is not limited to any territory or state structure, nor is it valid for all residents of each state. Not only does it distinguish between Muslims and non-Muslims; it also distinguishes among Muslims: A madhhab legal system is only valid for those who adhere to this school, but it is valid for such a person no matter what Islamic country he resides in.
Nor is it an international law, as it is not based on any treaty. It may look similar to the universal human rights, but it is not universal, given the internal and external divisions in its application, nor is it a basic set of 'rights' that can override national laws, but a complete and detailed set of laws in itself, i.e. an alternative to, not a basis for, national laws.
Thus, any adaptation of the Shari'a to modern political systems must raise problems, not just concerning the content of the rules and their applicability to modern society, but to the definition of the Shari'a itself, and a change in the manner it is to be practiced: How is the law expressed? And who decides what this expression shall look like?
From the modernist viewpoint, where the aim is to maintain a Western-based, secular law as dominant, but allow a traditional sector to continue some elements of the traditional legal system, one way could be to divide the legal field into two completely separate parts, where the Shari'a is given dominance over one region, most commonly family and personal law, with its own Shari'a courts and procedures etc. This section is then 'taken out of' the normal legal domain, the 'normal', non-Shari'a, courts would have no jurisdiction over such matters. This is what one may call a 'containment strategy': establishing a reservation or protected reserve for the Shari'a, by relinquishing (codified) legal control over it.
This works, and is to some extent a continuation of pre-modern practice, with two sets of legal system, a (reduced) Shari'a court and a (dominant) non-shar'i court. But it is hard for a modern political system to accept that an area of society is outside its control. Therefore there will always be pressure to reduce the competence and independence of the non-codified legal area.
Another method is to bring the Shari'a concerns into the normal legal system by incorporation into the national codified law. That is, to set up a family law, a commerce law etc. with regular paragraphs and sections, where the content reflect the rules of the Shari'a. In this case, the more existential problems of 'who decides the law', 'for whom is the law valid', 'what madhhab shall we choose', are irrelevant: The framework of the law is the state, as in any other national law. The state decides whichever madhhab and what rules it wishes to include.
This also is possible, and there have been made various such attempts. But the problem would then be, why would we do it? The object of the exercise would be to allow a traditional element of social mores room in the modern society. But would this modernized, codified law, implemented and judged by state-educated lawyers, not fuqaha', be accepted as the Shari'a by that traditional element of society? This all the more so if this "Shari'a" decided by the parliament of one state turns out to be quite different from the "Shari'a" determined by the parliament on the other side of the border. To accept the establishment of inter-statal legal bodies to agree on a common definition of the Shari'a would again mean that the state relinquishes control over its own legal system, and any such attempt that has been made has failed.
A third way is to focus on the central point; legitimacy, and state early on in the constitution that all (othewise quite modernist) laws of the state are in fact based on or at least take inspiration from the Shari'a. The effect of such a statement in garnering legitimacy for the state is probably quite limited, but it is also an easy and basically cost-free way to solve the conundrum, and most Muslim states have such a statement of principle in their constitution.
A more elaborate form is to ennumerate a number of 'sources' for a particular law or law system, which are what the judge shall refer to when making his judgement. Thus, the law can state that the judge should look first at the codified law. Then, if he cannot find a solution there, he should look at the Shari'a, then the local custom; etc., in one order or another. This is also a quite common approach. [22] However, such statements do not normally specify exactly what is meant by the 'Shari'a', nor how the judge - not being a faqih in most cases - should go about finding the solution there. It does not help that some laws state - quite in the face of reality - that local custom and the Shari'a is one and the same. Thus, they are mostly to be considered as rather vague references to the judge's own discretion, and often an expression of a 'moral' attitude.
As social norms, what is generally accepted to be 'the Shari'a' or 'Islamic morality' will work whatever relations they may have to the actual texts. This may lead to a great variation in practices that are accepted as 'Islamic' or shar'i in various contexts. To a certain degree such variation can also be accepted within the textual Shari'a, because of the inherent flexiblity that is bound into its variation between schools and scholars, and the possibility of a mufti to adapt and modify the text of the law.
But there are also limits to this malleability. Socially this limit will become narrower with increased tensions within societies or communities describing themselves as Muslims. Conflicts over such norms will inevitably lead to scrutiny of the textual sources for argumentation or settlement, and increased internal conflict will thus automatically tend to favour a textual solution, or at least positions that can be anchored in texts. There will also evidently be limits to what a mufti - trained or self-proclaimed - can, with the methodology and sources at hand, justify as shar'i. These limits will of course vary with from mufti to mufti, and the increased differentiation in the context of Muslim communities (and the changes in classical 'ulama' formation) will make it harder to reach the required communal acceptance from the scholars for any particular position.
The crucial question thus becomes, who draws the line? Is it the class of 'ulama'? The state? Common people, or perhaps independent groups of untrained Muslims who present themselves as alternative 'ulama'? This is not a matter of logic, but of power: Who controls the symbols, who defines the Shari'a? This is both a result of and and an element in the distribution of power in society.
This then, is the key question of today's debate over 'implementation of the Shari'a'. This is the demand of most of the Islamist (or 'fundamentalist') groups today, to rid society of the mixed and symbolic references to the Shari'a, and introduce the true and unadulterated Islamic law. But what do these groups mean by the (true) Shari'a? In most cases, it varies with how far these groups really are from grasping political power and having to concretize their ideals.
For the rank and file, the Shari'a is again often just a symbol synonymous to 'Islam', 'the Qur'an', 'what the Prophet did', 'moral and non-corrupt'. Such activists often only know the Shari'a through edifying books on ritual prayer and purity, through dress codes etc.
However, for those who actually want to develop it into a concrete model of society and build the laws of the land on this, it must be a problem that, as we have described above, the Shari'a is anything but a self-evident concept that is ready to put into practical reality.
One could revert to the situation before the European arrival, i.e. the classical Ottoman situation with a set of Shari'a courts treating certain cases according to the law as defined by muftis and qadis, and a separate sultanic legal system bases on Sultanic kanuns or siyasa shar'iya. This does not sound very radical, and is not attractive for an ideal of making the Shari'a the only law of the land. Thus, no siyasa, the Shari'a rules must apply directly even in types of cases where they may never have been practiced before in any Muslim society.
Then, one could revert to an earlier (perhaps imagined) classical stage, where one assumes the Shari'a to be the only court instance, based on the procedure as described in the adab al-qadi books, [23] with the judges applying the Shari'a either from the mukhtasarat simplied rule books, or referring to a mufti for more complicated cases, with no influence from a 'secular' political power. This is imaginable, and possibly what is meant by many of those who call for the 'implementation'. But this does not solve the problems of the inapplicability of the Shari'a in its classical procedure for criminal and other fields of law.
More problematic from the Islamist viewpoint is that this system puts all legal power in the hands of scholars, a class of people rejected by these same Islamist as corrupt and responsible for the decline of Islam. They want greater freedom to formulate laws, and the demand the right to ijtihad, by which is variously meant 'ability to shape the Shari'a' and 'rejection of the orthodoxy of the 'ulama''. The division of the Shari'a into four schools of law is in itself seen by many radicals as deplorable and in contradiction to the idea of a single umma with a single Prophet and Revelation which must therefore have a single law.
So, one must go further back, but to what level of ijtihad? Only to the limited level of talfiq, i.e. to be able to draw rules from one madhhab into the legal system of another? Hardly very radical, this principle, first introduced in the last century, is now commonly accepted among 'ulama' today.
Then, a wholesale rejection of the consensus within the madhhab, basing the rules instead on the consensus of the whole umma? This is the logic of the idea 'one umma, one madhhab'. But if it was impossible to form a unified law on the basis of what all Muslim agreed on in the ninth century, it is not likely to be easier to achieve in the twentieth.
One cannot therefore base an operative legal system on those few existing shar'i rules that there is consensus on now. So, one must go one step back beyond the 'confirmation' stage, to the methodology of the usul and the raw material of the Revealed texts. In other words, one must create a new madhhab, a school of law either by free merger of the opinions and principles of the four existing schools, or a complete new set of rules based by ijtihad mutlaq, answering what the Islamists believe is the requirements of today's society.
However, is this new madhhab to be based on the traditional values of usul, that is the methodology of qiyas, 'amal, istislah, istihsan, etc. and confirmed by a consensus of the scholars in this new, fifth, school alongside and in toleration of the four existing ones; executed by qadis and muftis, limited in procedure as classical Shari'a was, or not? That is, is the new school to remain within the boundaries of fiqh, Islamic jurisprudence, as laid down by al-Shafi'i and agreed by the majority in all schools since? Or are they going to cut the lines to fiqh and early scholarship, and work directly on the basis of the Qur'anic text and Sunna (with or without established tafsir and hadith scholarship)? This is the logical conclusion of referring to the 'fundaments', and there are no doubt real 'fundamentalists' that at least dream of such a total break with post-Prophetic tradition. It is a position with ideological clarity.
But how can one do so in practice? One would then be faced with the same problem that started the development of fiqh in the first place, that the Revelation does not have the form of a direct law. In order to make the Revealed text into an operational law, you must have a methodology. If you throw away classical fiqh, you will have to construct a new fiqh, which will be just as near and far from the Revealed text as the classical one. Thus, by reverting up the tree of history looking for a cut-off point with the aim of actually constructing a law, you will end up proceeding down again, retracing the steps of the classical and post-classical developments, facing the same problems and giving the same or different answers.
How should then this new fiqh be 'better' or 'closer to God's direct words' than the classical one? Perhaps one could justify such a new maddhab by saying that the old ones are no longer suitable in our modern world, a new time requires a new Islamic law. But that is not a good argumentation when the aim is not to be 'modern' and 'adapted', but to be closer to God.
The basic problem is that the Islamists believe that the post-Prophetic development of the 'orthodox' Shari'a down until today is the result of a conspiracy, or that it is bad Muslims who have put their own human opinions above or in the place of a 'true Shari'a', so these accretions and corruptions of history must be cleared away for the true Shari'a to appear. But of course there is no conspiracy. The history of the development of the fiqh shows a continuous process of defining a law based on the Revelation. The various stages in the Shari'a's history were all answers to problems that appeared when the indications given in Sunna and Qur'an were to be formed into an operational law, mostly in a context where the legists had to operate independently of a political power or state structure. Today's attempts to retrace the steps of history will lead to the same problems appearing for those who try. They may find different answers, but their result will in principle neither be closer to nor further away from Revelation than the Shari'a that already exists in the four madhhabs.
The conundrum of the classical sunni schools were, on the one hand, no state that can be the guarantor of the correctness of the interpretation, on the other, no internal hierarchy of the scholars. If the new madhhab is to be different from the earlier ones and not just be based on the same vauge ijma' within the school - something that would take a long time to develop - it must break with one of these two premises. One way is to introduce some form of internal hierarchy among the scholars, which will then not be the traditional scholars but a new class of 'neo-'ulama'' or 'people's scholars'. There is already a noticeable tendency to do so, Islamist groups claiming that they are the 'heirs of the 'ulama'' and must take over their function, paraphrasing the idea of the 'ulama' as the 'heirs of the prophets'. These new groups differ from the traditional ones - apart from not being trained scholars; this new madhhab of course doesn't yet exist anyway - in that they mostly have a clear hierarchy with a shaykh or similar leader at the head. He can then be the recourse of authority, and decided what is or is not correct. This hierarchy is of course linked to the fact that these groups are in essence political action groups.
If the Islamists are not to base their authority on such self-appointed theological leaders, they must accept that the law is elaborated or confirmed by a state, a political power. This is perhaps a more common and realistic approach. In principle, that should of course not be the present-day nation states that divide the Muslim community, but a new revolutionary state that comprises all of the umma under the leadership, preferably, of a caliph. Clearly, this is hardly a realistic goal, but it is the logical outcome. Thus we have seen certain of these groups appointing themselves as this new umma-state and their leaders as caliphs. However, they face a problem in having these claims accepted by anyone outside their own group.
The more realistic movements accept that their arena is the existing territorial states, albeit through a revolution and a new regime, and the way to implement their laws is through some form of elected body. But then they will meet the same problem as the modernists had in attempting to codify the Shari'a. There is no way to guarantee that the Shari'a, as defined by the revolutionary Egyptian assembly, will be the same as the Shari'a of the revolutionary Algerian or Syrian one. With no universal umma-state, one state's Shari'a beomes the neighbouring state's bid'a. Given the fractionary nature of these (and of most!) revolutionary groups, there is even likely to be divisions within each state on how the Shari'a should be formed, and it would have to be subject to a vote. If this is a problem for a 'modern' nation state where the Shari'a is a minor element of legitimacy, how can a revolutionary Islamic regime that draws its total support from the claim that their rule is the unadulterated divine law, survive such a possibility?
In either case, one has done violence to the classical definition of the scholar-based Shari'a, and linked it to political authority. That is in itself a problem, because the scholar's sole responsibility for the law, and the dangers of political influence, is of course solidly documented in hadith. Therefore, some imaginative explanations are in order to clarify why this system would be closer to the 'unadulterated Sunna' than the traditional one. [24]
In both cases, the result will be the codification of the Shari'a into a fixed set of laws, much in the way it was attempted under the Ottomans and later, only with a different Sultan and greater latitude for the legislator in deciding what the content of the rules should be. Although this modernist 'human' and error-prone codification was exactly what one wanted to get rid of to begin with. However, no legitimate political authority, revolutionary or not, can avoid having an applicable law, and when this applicable law does not exist (and one rejects those elements of it that does exist in the orthodox madhhabs), someone has to create it.
The alternative to these ways of establishing a new fiqh on the basis of either of these kinds of authority, is anarchy: A lawless society where whoever rules, be he president, sultan or caliph, can interpret the Revelation in any manner he chooses, without the restrictions that fiqh would impose on him. This is not just a theoretical option, in Libya, al-Qadhdhafi has rejected both fiqh and Sunna, and even the ijtihad of the scholars, accepting only the Qur'an. As a result, he has a free hand to decide what the Shari'a is (on occasion also abolishing all laws in Libya), a freedom that he exercises within the constraints of the danger of public uprisings. [25] Another example may be the Afghanistan of the Taliban, which tries to implement a Shari'a without, apparently, either having access to or being concerned with traditional scholarship, thus implementing rules that have no backing in the Shari'a, only in their own whims or local custom.
The major problem for these groups would then be, why (apart from a persuasive Kalashnikov) should other Muslims listen to them and accept their authority, when their new fiqh is just as derived and 'human' as that of traditional scholarship or even more so? And why should they listen to one Islamist version rather than their many rivals?
That is, how much violence can you do to established tradition and at the same time seek legitimacy in the same tradition?
As (and if) the Islamist revolutionaries approach a realization of their aims, they must face this paradox. And as it becomes problematic for them to say that their projected revolutionary law is anything but a fifth madhhab, it is conceivable that this will lead to a playing down of their criticism of the existing Shar'ia and of the 'ulama'. They may then move closer to and perhaps eventually merge into the existing system of Islamic scholarship. This is even more probable as some circles among the trained 'ulama' develop sympathies for the ultimate goals of the Islamists.
Thus, the end result of the Islamists' work with the slogan of 'back to the sources' and rejection of 'orthodox ossification' may in fact be that this aim is logically impossible, and that since they are forced to redo the fiqh work of centuries of scholarship anyway, they may as well join up with those who have already done it. Thus, the problems of globalization would lead to normalization.
2. Ann E. Mayer, 'The Shari'ah: A metodology or a body of substantive rules?', in Nicholas Heer (ed.), Islamic Law and Jurisprudence, Seattle 1990, 177-98. [*]
3. It is not the only uncodified legal system of the world, the Anglo-American 'common-law' system where the 'precendence' of earlier cases defines the law, with codified 'statutory laws' as accessories, is another active example. However, even here the legislative assembly / parliament is the dominant force in the creation of new laws, as in other modern states. [*]
4. With the exception of Saudi Arabia, however the royal ordinances there may form the body of a de facto codified law. It appears to function as a continuation of what below will be called the 'sultanic system', with a dual legal system, shar'i and royal, which has not yet been properly studied. Still the Saudi example is the most interesting example of an attempt to apply a classical Sharia system in a modern state, unlike e.g. Iran, which uses a codified, albeit Shari'a-based, law. Cf. Fouad Al-Farsy, Saudi Arabia: A case study in development, London 1982, 66-9, 89-99, 114; and James Buchan, 'Secular and religious oppposition in Saudi Arabia' in Tim Niblock (ed.), State, society and economy in Saudi Arabia, London 1982, 106-24. [*]
5. M. Flory, J-R. Henry (eds.), L'Enseignement du droit musulman, Paris 1989. [*]
6. The debate has been particularly strong around the textual studies of the late Norman Calder, expressed in his Studies in Early Muslim Jurisprudence, Oxford 1993. His suggestion to postpone the dating of various basic works by half a century or more has been strongly rejected in reviews by Yasin Dutton, Journal of Islamic Studies, 1996, A. Kevin Reinhart, IJMES, 1, 1997, and in particular Miklos Muranyi, 'Die fruhe Rechtslitteratur zwiszhen Quellen-analyse und Fiktion', Islamic Law and Society, iv, 2, 1997, 224-41. A different approach, dating the schools' foundation on external evidence, has been presented by Christopher Melchert in The formation of the Sunni schools of law: 9th-10th centuries C.E., Leiden 1997. [*]
7. For this periodization see e.g. Knut S. Vikør, Ei verd bygd på islam. Oversikt over Midtaustens historie, Oslo 1993. [*]
8. As far as this argument goes. Of course there were many other factors that led the development of legal scholarship to be separate from the caliphs in the first place. [*]
9. In this brief overview, we are only presenting a general framework of post-Shafi'i sunni legal theory. [*]
10. General overviews on qiyas, Ahmad Hasan, Analogical reasoning in Islamic jurisprudence: A study of the juridical principle of qiyas, Delhi 1994; Alhaji A.M. Nour, 'Qias as a source of Islamic Law', Journal of Islamic and Comparative Law, v, 1969-76, 18-50, see also Norman Calder, 'Al-Nawawi's typology of muftis and its significance for a general theory of Islamic Law', Islamic Law and Society, iii, 2, 1996, 137-64. [*]
11. Chibli Mallat, The Renewal of Islamic Law, Muhammad Baqer as-Sadr, Najaf and the Shi'i International, Cambridge 1993, 28-59; Moojan Momen, An Introduction to Sh'i Islam, New Haven 1985 and Yann Richard, Shi'ite Islam: Polity, ideology and creed, Oxford 1995. [*]
12. On ijma', Ahmad Hasan, The doctrine of ijma' in Islam. A study of the juridical principle of consensus, Islamabad 1984; Abdel-Magid Turki, 'L'ijmâ' ummat al-mu'minîn entre la doctrine et l'histoire', Studia Islamica, lix, 1984, 49-78; Georges F. Hourani, 'The basis of authority of consensus in Sunnite Islam', Studia Islamica, xxi, 1964, 13-60, and W.B. Hallaq, 'On the authoritativeness of Sunni consensus', IJMES, 1986, 427-54. For a recent study on the confirmation of rules and relations to the state, Sherman A. Jackson, Islamic Law and the State. The constitutional jurisprudence of Shihab al-Din al-Qarafi, Leiden 1996. [*]
13. Since the common Muslim mostly encounter the difference between the madhhabs in variants in how to perform prayer and other rituals, leading to different madhhabs having separate mosques and communities, some suggest 'rite' as a better translation than 'school of law'. [*]
14. Taqi al-Din Ibn Taymiya, Raf' al-malam 'an al-a'imma al-a'lam, Damascus 1383/ 1964, Muhammad b. 'Ali al-Sanusi, K. Iqaz al-wasnan fi 'l-'amal bi'l-hadith wa'l-Qur'an, Cairo 1357/1938. [*]
15. Calder, 'Typology'. [*]
16. Mohammad Fadel, 'The social logic of taqlid and the rise of mukhatasar', Islamic Law and Society, iii, 2, 1996, 193-233. [*]
17. Wael B. Hallaq, 'From fatwas to furu': growth and change in Islamic Substantive law', Islamic Law and Society, i, 1, 1994, 29-65. [*]
18. For the evident reason that it developed in isolation from the state, public prosecution being precisely the state's enforcement of legal norm on its citizens. For this reason, it may well be said that the Shari'a system is better suited to conflict resolution than to imposition of norms. For much the same reason, the classical Shari'a is quite vague on the severity of penalties for crimes, with the two exceptions of the five hudud crimes specified in the Qur'an, and the compensation for bodily harm, qisas. Apart from these, punishment is at the discretion of the qadi. Cf. Irene Schneider, 'Imprisonment in pre-classical and classical Islamic Law', Islamic Law and Society, ii, 2, 1995, 157-73. [*]
19. The basic work on classical practice of law in Muslim societies remains Émile Tyan, Histoire de l'organisation judiciaire en pays d'islam, Leiden 1960. For the Ottoman period, cf. Haim Gerber, State, Society and Law in Islam, Ottoman Law in Comparative Perspective, Albany 1994. [*]
20. Or at least influence; Rudolph Peters has in a number of articles shown how criminal cases in 19th-century Egypt were in fact decided in accordance with shar'i legal rules, thus that the difference between shar'i and non-shar'i legal systems is much smaller than argued before (Rudolph Peters, 'Murder on the Nile, Homicide trial in 19th century Egyptian Shari'a courts', Welt des Islams, xxx, 1990, 98-116, 'The Codification of Criminal Law in Nineteenth century Egypt: Tradition or modernization?', in J.M. Abun-Nasr, U. Spellenberg, U Wanitzek (eds.), Law, Society and National Identity, Hamburg, 1990, 211-25, 'Islamic and Secular Criminal Law in nineteenth century Egypt: The Role and Function of the Qadi', Islamic Law and Society, iv, 1, 1997, 70-90). But the 'sultanic' system was in place, and it was common for e.g. a murder case to go first before the Shari'a court, where it would be adjuged according to Shari'a text, then if no conviction was made, it was taken to the 'sultanic' courts, where conviction was easier, but where the punishment was also less draconic than the Shari'a provided for and, more importantly, no compensation was made to the injured party. [*]
21. Muhammad Khalid Masud, Shatibi's Philosophy of Islamic Law, Islamabad 1995. [*]
22. Wiliam Ballantyne, 'A reassertion of the shari'ah: the jurisprudence in Gulf states', in Nicholas Heer (ed.), Islamic Law and Jurisprudence, Seattle 1990, 149-60 [*]
23. Adab al-qadi is a genre of legal literature that expresses the model behaviour of the judge and the courtroom. Cf. Tyan, Hisotire. [*]
24. One possible way out would be for the revolutionary regime to declare that the territorial state they happened to control was the umma, their leader the caliph and the legislative revolutionary assembly the 'ulama'. But what then about the Muslims who lived elsewhere? Would they be heretics, not supporting the 'true' caliph? Even those living in other 'revoutionary Islamic' states? Such an easy way out would be easy to confound with a 'direct literal' reading of hadith on the nature of the umma and its 'ulama'. [*]
25. Ann Elizabeth Mayer, 'Le droit musulman en Libye à l'âge du "Livre vert"', Maghreb-Machrek, 93, 1981, 5-22. [*]
© The author and Nordic Society for Middle Eastern Studies. Archived 29.3.99