Juristic Authority vs.

State Power: The Legal Crises of Modern Islam

Author(s): Wael B. Hallaq
Source: Journal of Law and Religion, Vol. 19, No. 2 (2003 - 2004), pp. 243-258
Published by: Journal of Law and Religion, Inc.
Stable URL: http://www.jstor.org/stable/3649176 .
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 JURISTICAUTHORITYVS. STATE POWER:

THE LEGALCRISES OF MODERNISLAM*

Wael B. Hallaqt

To say thatauthorityis the cornerstoneof any law or legal system

is to statethe obvious. Authoritynot only defines the law but in effect
constitutesit formallyand substantively. There can be no functioning
law or legal system without an underlyingstructureof authoritythat
may in turn derive from another power-based or authority-based
substrate,such as a state. This muchwe takefor granted.
Although it is commonplacefor the Westernlawyer or jurist to
view the state as a body wielding and exercisinglegal authority,such a
view is neitherobvious nor normativefor his Muslim counterpart,and
even less obviousby far to the Muslim masses aroundthe world. Yet,
paradoxically,the greatmajorityof today's Muslim countriesrun their
legal systemson the operative-and very concrete-assumptionthatit is
the state that produces legal authority. In other words, within the
nationalbody politic of each moder Muslimcountrytherelies a source
of legal powerthatpresumablylegitimizesand enforcesboth the public
actionsof the law andthe provisionsthatgovernthe privatesphere.
I say "paradoxically"because in contemporaryMuslim thinking
there exists an obvious dislocation between two perceptionsof legal
authority,one emanatingfrom the state and the other from elsewhere.
This second source of authority has been the dominant, indeed
unrivaled,conceptionfor over a millennium,while the perceptionof
authoritylodged in the states was introducedin these nations only
during the 19th and 20th centuries. The dislocation between the two
sourcesof authoritysumsup the legal (if not culturalandsocial) rupture
thatoccurredwith the introductionof so-called"modernreform."
As is well known, early in the 19th century,the OttomanEmpire,
includingEgypt, embarkedon a process of reformthat was to change
not only the face of the then existing legal system, but also its inner
structures. This sort of process also obtainedin FrenchNorth Africa

* This essay representsa slightlyrevised versionof a paperpresentedat the Middle East

Legal StudiesSeminar,heldby Yale Law School in Granada,Spain,in January2003.
t Professor,Instituteof IslamicStudies,McGillUniversity,Montreal,Quebec,Canada.

243
244 JOURNALOF LAW& RELIGION [Vol. XIX

and, even earlier, in British India (which included today's Pakistan).

The general featuresof this foundationalchange will become clear in
due course. What I would like to propose in the meantimeis that this
change created an unprecedentedwave of crises in Muslim societies
throughoutthe world, manifestingthemselves on the social, ethical,
moral, military and technological levels among them. Nowhere,
however, did these crises have an effect as severe as they did on the
legal sphere, our concern here. In the process of reform, which was
intimatelyassociatedwith the buildingof the "Muslim"nation-state,the
law was appropriated by this statefromthe handsof a professionallegal
elite. Relatively suddenly, law and all its provinces became a state
enterprise,a colossal (if not devastating)leap in the Muslim tradition
andpsyche.
The effects of this suddenandmassiveleap were many, only one of
which was the crisis of politicallegitimacy,which, in and by itself, is of
no concernto us here. Ourconcernis ratherto show how this crisis of
political legitimacy resulted from a systematic demolition of legal
authority. No argumentis here needed to demonstratethe problems
surroundinglegal authorityand legitimacyin the Muslim world today,
except to say that one majorsymptomof it (aside from the astounding
political violence that it has generated)is the constant and consistent
popular call to restore the Shari'a-a call that, at a minimalist
interpretation,unmistakablyresoundsin a deep search for culturaland
politicalidentity. The call dominatesthe discourseof moder Muslims,
and the tracts, pamphletsand books expoundingthis call are legion.
Forcefuland deep-rooted,it threatensto shakethe existing politicaland
legal structuresin at least severalMuslim countries. It is imbuedwith
significantpoliticalmeanings,one of which is embeddedin the message
that restoringthe Shari'a amountsto nothing less than displacingthe
existing legal structuresof the modem nation-state,very much in the
same way that these very structureswere createdto displacethe Shari'a
duringthe past two centuries. The call to restorethe Shari'a-however
varied the contents of the call may be-is in effect an appeal to a
counter-revolution.
It is thus preciselythe shift in the axis of authorityfrom the hands
of the "traditional"Muslim legal professionto the modernnation-state
that must commandour attention. From the perspectiveof authority-
analysis, this shift is the crux of the matter, and underlies the very
meaningof the currentlegal andpoliticalcrises.
The questionthat ariseshere then is: Whattype of authoritylay at
the base of traditionalIslamiclaw? To answerthis question,it is useful
243] JURISTICAUTHORITYVS.STATEPOWER 245

to refer to the relevanttypes of authoritythat have been identifiedby

sociologists and others,althoughwe can immediately,and for obvious
reasons, isolate such types as moralor charismaticauthority. We may
even exclude religious authority,despite the fact that Islamic law is
supremelyreligious in character. Religion qua religion tends less to
bestow authorityon Islamiclaw qua law thansurroundit with an auraof
sanctity. Islamic law is religious only at the most fundamentallevel,
more as a holistic entity than its particulardetail. As we shall see,
Islamic law derivesits authoritynot just because it is believed to be the
law of God, for hermeneuticallyGod did not reveal a law but only
textual signs or textual indicationsthat were to remainempty of legal
significancehadthey been left unexplored.Or more metaphorically,the
God of Islamrevealedonly the basic buildingblocks of the law with no
more thanintimationsof a blue-printas to how the House of Law should
be constructedand formedout of these blocks. Obedienceto a law is
certainly backed by God's authority,but what is precisely that law
which requiressuch obedience? If Islamiclaw stipulatesprovisionX or
a Y (the constitutiveelementsof the law), obediencemay be ultimately
to God, but the authoritybackingthe very stipulationsof X and Y are
not His alone, if at all. For He never revealed these stipulationsor
provisions,and thereforecannotbe held responsiblefor them. All God
did was to reveal the "textual signs" that form the speculative,
hermeneuticalbasis of legal construction,and inasmuchas X and Y
could be derived from these signs, so conceivably could the
constructionsP andQ.
It is therefore the agents of interpretiveconstructionwho are
responsible, and these are the jurists. They were the ones who
constructedthe House of the Law, and they were fully responsiblefor
the elaborationof the very methodologyaccordingto which Islamiclaw
became the edifice it was to be. It is thereforenot only accuratebut also
necessary to insist on the characterof Islamic law as "jurists' law"
(without having to associate it too closely, for instance, with Roman
law).
Islamic law is jurists' law not only because it happenedto have
been constructedby jurists, but mainly because the jurists are the
carriers of the authoritythatsustainedit for over a millennium. This, in
turn, leads us to the question:What type of authoritydid these jurists
carry? Religiousauthority,as we said earlier,is by no means sufficient
to explaintheirrole. If we were to insist on this typology,then all men
of religion should be the carriers of this authority, including the
theologiansandthe mystics. But we know full well thatthese two kinds
246 JOURNALOF LAW& RELIGION [Vol. XIX

of religious scholarsneitheraspiredto nor attainedthe statusof carriers

of legal authority.It was only thejuristswho did, and if they succeeded
in doing so it was because they were the sole agents of legal
epistemologyand hermeneutics.Moreover,the juristsand those whom
they trained and, in one way or another, supervised were also the
custodiansof Muslim societies. They were the spiritualand practical
guides of the umma(the Muslimcommunity);they controlledthe entire
infra- and super-structures of legal education;they ran what we might
term municipal affairs. They collected taxes and improved public
works;supervisedthe affairsof the market-placeand controlledand ran
charitable foundations, the very foundations of their professional
existence; and they functioned,inter alia, as guardiansof orphansand
otherunprivilegedsocial groups,administeringtheirfinancialand other
affairs.' The legal profession,with the juristsat its head, was therefore
at once a religious, moral, social, and legal force. It is difficult to
conceive of, much less write,the social, culturaland legal historyof the
Muslimworldwithoutdue attentionto the centralrole the legists played
in it. In fact, thereis little Islamichistoryto be writtenwithoutIslam's
legal professionandits contributionsto its own civilization.
In termsof generatingauthority,these social roles were admittedly
supportive. They merely enhancedthe image of the jurists as both
custodiansof the Shari'aand the unfailingcivic leadersof the Muslim
communities. Instead,it was mainly the role thatthey played as legal
interpreterswhich bestowed on the jurists their distinctive mode of
authority. In this capacity,their authoritywas ultimatelyepistemic in
nature-knowing the law and how it is to be derived, interpretedand
appliedwere the qualitiesthatconferredepistemicauthority.2
It must be stressedthat epistemicauthorityran throughthe entire
legal hierarchy,from top to bottom. The Islamic legal profession
acknowledgeda hierarchyof legal "players,"beginningwith the school
eponyms-or founders of the legal schools-and ending with the
muqallids, those who followed, reinterpreted,and applied the legal
doctrinethat had been establishedby their superiorforerunners. The
eponyms were deemed absolute mujtahidswhose legal knowledge,
presumed to be all-encompassingand wholly creative, is causally
connected with the founding of a school.3 The schools are not only

1. Emile Tyan, Judicial Organization,in Law in the Middle East 236, 259-263 (M.
Khadduri& H.J.Liebesneyeds., TheMiddleEastInst. 1955).
2. Wael Hallaq, Authority, Continuityand Change in Islamic Law 1-23 and passim
(CambridgeU. Press2001).
3. Id. at 1-23.
243] JURISTICA UTHORITYVS.STATEPOWER 247

namedafterthem, but are purportedto have originatedwith them. The

comprehensiveand wide-rangingknowledge attributedto the absolute
mujathidsis matched only by their assumed in-depth knowledge of,
among other things, legal methodology(which is by necessity of their
own creation),Quranicexegesis, the study and criticism of Prophetic
traditions, the theory of abrogation, legal language, positive and
substantive law, arithmetic, and the important science of juristic
disagreement.
The most salientfeatureof the founder'sinterpretiveactivity is no
doubt the direct confrontationwith the revealed texts, for it is this
privileged involvement with the divine word that required and
presupposedthoroughfamiliaritywith so many fields of knowledge.
Even when certain cases requiredreasoning on the basis of already
establishedlegal rules and derivativeprinciples,the foundingjurists'
hermeneuticis held to be, in the final analysis,thoroughlygroundedin
the revealedtexts. The founders'doctrinesconstitutethereforethe only
purely juristic manifestationof the legal potentialityof the revealed
language. Withoutthis hermeneutic,in other words, revelationwould
remainjust that, revelation,lacking any articulationin it of the legal
content. Their doctrineslay claim to originalityand authoritynot only
because these doctrinesderive directlyfrom the texts, but also because
they are gleaned systematically,by means of clearly identifiable
hermeneuticalprinciples,fromthese texts. The systematiccharacterof
the doctrinesis seen as a productof a unifiedandcohesive methodology
thatonly the founderscouldhave forged.
If the schools continuedthroughoutthe centuriesto be the holders
of legal authorityit was by virtueof the fact thatthey both inheritedand
maintainedthe authorityof the respectivefoundersand their students.
This maintenancewas achieved first by reenacting, and second by
defendingthe founders'doctrines.4 But it is not the positive doctrine
alone that they defendedor reenacted;rather,in most cases, what they
defendedwas the founders'hermeneutic,the methodologyand positive
legal principlesby meansof which the law was derivedand interpreted.
It was in fact common enough for later jurists to deviate from the
positive provisionsof the founders'legal doctrines,but never did they
abandonwhat they perceivedto be the founders' legal methodology,
positive principlesand hermeneutic. It was preciselythis loyalty-the
loyalty to the tradition'shermeneuticand principles-that continuedto
bestow authorityon the laterschools. Epistemicauthoritythereforeran

4. See id. at 86-120.

248 JOURNALOF LAW& RELIGION [Vol. XIX

through the entire legal hierarchy. The leading Imams acquired it

themselvesandtheirfollowersacquiredit derivatively.
Elsewhere,sI have argued that two particularjuristic functions
served both as the axes of legal authorityand as agents of maintaining
continuityand mediatingchange. These were the jurisconsult(mufti)
andthe author-jurist.(Forthe westernlawyer,it may come as a surprise
that the judge, the qadi, did not partakein this authority,but more on
this later.) The mufti answeredquestions arising from all walks of
Muslimlife, andit was frequentlythe case thatissues arisingin lawsuits
were addressedto him first, eitherby the judge himself or by one of the
litigatingparties. Whatthe muftisaid was takenseriouslyby the judge,
even when the solicitorof the mufti'sopinionwas one of the disputing
parties. The mufti,in other words, knew what the law was, and how
interpretationand legal methodologyworked. Thejudge quajudge,6on
the other hand, did not, since his function was largely limited to the
applicationof doctrine.7
The author-juristlikewise representeda standardreferencefor the
qadi who consultedhis writingsthatcontainedthe authoritativedoctrine
of the school.8 The author-juristusuallystood in the highestranksof the
legal profession,not in termsof financialprestigeor politicalpower,but
ratheras the most learned. His authority,in the good traditionof the
founders,was also primarilyepistemic.
It was the combinedwork of the mufti and the author-juristthat
authorizedthe law and gave it its legitimacy. Thefatwa representeda
legal opinion stated in universal terms, reflecting both the most
authoritativelaw in the school as well as legitimizedlegal practice. It
was the general rule that no fatwa was to be considered valid or
authoritativeunless it was backed by the judicial practice of the
community.9 The mufti's discoursethereforecombinedlegal doctrine

5. Id. at 166-235.
6. Some jurists occupied more than one of these functions. They may have been
simultaneouslyjudges, muftis, and author-jurists.A distinguishedmufti or author-jurist, when
facing a difficultcase in his capacityas a judge,may deal with it himself,but whenhe does, he is
not acting solely as a judge. A "judgequajudge"is one who operatesas a qadi whenhe either
cannotor does not (wishto) wearthe otherhatsof muftior author-jurist.See Hallaq,supran. 3, at
167-174.
7. This explains why the legal cultureof Islam did not acknowledgeas importantthe
collection and publicationof court decisions, for the law was instead to be found in the
"published"writingsof the muftiandauthor-jurist.
8. Hallaq,supran. 3, at 136-235.
9. 'Ala' al-Din al-Haskafi,al-Durral-Mukhtar,8 vols. (n.p. 1979), I, 72-73; Ibn 'Abidin,
Sharh al-Manzuma,in Ibn 'Abidin, Majmu'Rasa'il, 2 vols. (n.p. 1970), I, 38; Ibn Hajaral-
Haytami,al-Fatawaal-Kubra,4 vols. (1938), IV, 293; and Muhammadal-Hattab,Mawahibal-
Jalil, 6 vols. (Tarablus1969),I, 36.
243] JURISTICAUTHORITYVS.STATEPOWER 249

and practice,therebybringingtogethersocial legal realitywith juristic

hermeneutics and reasoning. It was largely on the mufti's work that the
author-juristdependedin constructinghis material. The law-manuals
and extensive compendiaof the law producedby the author-juristand
used by the legal profession as authoritativereferencescontainedthe
Law of Islam. Thefatwa genre was systematicallyabsorbedby these
author(iz)ed works which, in tur, sanctioned these fatwas as
authoritative.This process of absorptionwas a complex one, and we
need not deal with it here.'? Whatneeds to be said,however,is thatthe
hermeneuticsinvolved in the fatwa and the authored work, whose
contents reflected the interactionbetween the socio-legal reality and
discursivejurisprudence,was responsiblefor the maintenanceof legal
authorityas much as the little appreciatedelementof legal change. The
muftiand author-jurist maintainedthe legal traditionof their school and
in the process defended,improved,and appliedit. At the same time,
they implementeda piecemealchangethatremainedentirelyfaithfulto
the tradition,withoutshakingany of its principlesor sensibilities. It was
a changethat was acutely sensitive to the society, its demands,and its
ethos. Change,in otherwords, came fromwithinthe tradition,and was
articulated and defended through its indigenous mechanisms and
hermeneuticalapparatus.
In contrastto the muftiand the author-jurist, the qadi had no real
role to play in maintaininglegal authorityand the school tradition.
Simply put, the qadi qua qadi was not trustedas such an agent. The
Islamic legal literatureis repletewith referencesto the precariousand
dubiousrole of qadis as agentsof corruptedpolitics. The qadi, until the
Ottoman era, was the only legal functionarythat was exclusively
appointed,paid and dismissed by governmentagencies. Receiving
appointmentas a qadi was, for the appointee,often a cause for lament,
associatedwith a strongsense of adversity. It is not an exaggerationto
say that such an appointment,once accepted,was liable to diminishthe
personalauthorityof the jurist, and could expose him to suspicion-if
not actualcharges-of corruptionand lack of rectitude. And if this is
the case, it was by virtue of the fact that, for the legally-minded("the
Folk of the Shari'a"),governmentand "state"were routinelyassociated
with corruption,coercion and temporal predilection-all the more
reasonto curtailtheir powers. If the qadi lackedprestigein legal and
moral authority,it is because of his associationwith political circles, a

10. See id.; Hallaq,supra n. 3, at 166-235; and Wael B. Hallaq, 'FromFatwas to Furu':
Growth and Change in Islamic Substantive Law, 1 Islamic L. & Socy. 29 (1994).
250 JOURNALOF LAW& RELIGION [Vol. XIX

fact which explains why Islamic law and its legal system tried-and
largelysucceeded-to keep largely(thoughnot entirely)aloof from the
circles of politics for over a millennium. It is accurate to say that
Islamic law was a system that operated outside of "state" and
governmentinfluence. And it did so with remarkableindependenceand
success.
This unique relationshipbetween the law and the "state"claims
long historicalantecedents. But before embarkingon an explanationof
this relationship,it mustbe brieflynotedthatbracketingthe term"state"
in any discussionaboutpre-modemIslamicpolity andpoliticalhistoryis
eminently necessary. The Islamic "state," like all its pre-modem
counterparts,did not develop the featuresthathave come to exist in the
Europeannation-state. It did not develop the notion of territorial
sovereigntyas based on the conceptof nation,nor did it conceive of a
nationalcitizenship. Moreimportantly,it did notfunction as the modem
nation-statedid: it remainedlargely aloof from the affairs of society,
taxationremainingthe central,thoughoften interrupted, point of contact.
Whereasthe nation-stateultimatelycame to dominatecivil life by means
of a systematicregulationof municipalaffairs and social-familialand
economic relations,the Muslim rulerlargely left these domainsto the
legal profession,keeping to himself absolutecommandof the military
and strictlypolitical matters. Also significantis the glaring fact that
political governancein pre-moder Islam was personal,in line with the
traditionalforms of leadershipthatevolved in the Near East throughout
the Islamic and pre-Islamic periods. In contrast, the nation-state
operatedand still operatesin the mannerof a corporateentitybackedby
a trenchantnationalideology and an all-pervadingepisteme (to borrow
from M. Foucault)that go farbeyondthe personalwill-to-powerof the
ruler."1
Now, to understandthe natureof the relationshipbetween law and
political governancein Islam, it is imperativeto turn to the formative
and middleperiodsof this civilization,duringwhich the foundationsof
this relationship were laid, enabling it to last until the dawn of
modernity.12 As earlyas the second/eighthcentury,it had become clear
that a wedge existed between the rulingelite andthe emergingreligio-
legal class. This wedge was to make itself evidentwith two concurrent
developments,the first of which was the spreadof the new religious

11. See Martin van Creveld, The Rise and Decline of the State 189-335 (Cambridge U. Press
1999).
12. The next few paragraphs draw on my work The Origins and Evolution of Islamic Law ch.
8 (CambridgeU. Pressforthcoming2004).
243] JURISTICAUTHORITYVS.STATEPOWER 251

ethic amongthe ranksof the legal specialistswho increasinglyinsisted

upon ideal human conduct driven by piety. In fact, it is nearly
impossible to distinguishthis ethic from the social category of legal
scholars,since the latter'sconstitutionwas entirelydefinedby this ethic
of piety, mild asceticismand knowledge of the law and religion. The
second was the increasingpower and institutionalizationof the ruling
elite, who, after the first centuryof Islam, began to departfrom the
egalitarianformsof triballeadershipthat the earliercaliphshad known,
and accordingto which they had conductedthemselves. Caliphsnow
lived in palaces, wielded coercive powers, and gradually but
increasinglydistancedthemselvesfromthe peoplethey ruled.
The religious impulse-permeated with ethical and idealistic
values and inspired and enriched by the proliferationof religious
narratives-began to equategovernmentand political power with vice,
seeing them as infestedwith corruptionto the same degree as the pious
were repletewith virtue. This attitudeoriginatedsometimearoundthe
beginning of the second/eighth century, and was reflected in the
multitudeof accountsand biographicaldetails speakingof appointment
to the office of judgeship. As of this time, and continuingfor nearly a
millenniumthereafter,the themeof judicial appointmentas an adversity
inflicted upon the legists who received it became a topos and a
dominatingdetailof biographicalnarrative.
But this profoundsuspicionof associationwith the politicaldid not
mean that the legists predominantlyrefusedjudgeships,nor even that
they did not desire them. In fact, by and large, they accepted these
appointmentsand many junior legists must have viewed them as an
accomplishmentin their careers. On the other hand, the ruling elite
could not dispense with the jurists, for it had become clear that legal
authority, inasmuch as it was epistemically grounded, was largely
divorced from political authority. Religious and, by definition,legal
knowledge had now become the exclusive domain of the jurist, the
private scholar. It is precisely because of this essentially epistemic
qualitythatthe rulingelite neededthe legists to fulfill the empire'slegal
needs, despiteits profoundapprehensionsthatthe legists' loyaltieswere
not to the governmentbut to their law and its requirements,which
frequentlyconflictedwith the views of the rulingclass. This disjunction
betweenthe politicalandthe legal constitutedthe unshakablefoundation
of the separationbetweenwhatmightroughlybe called herethejudicial
and the political-executivepowers, a separationthat is nowadays
deemedessentialin liberaldemocracies.
252 JOURNALOF LAW & RELIGION [Vol. XIX

Yet, the legists and the rulers needed each other, and thus both
learned how to cooperate-and cooperate they did, albeit from a
distance. The legists dependedon royal and governmentpatronage,the
single most importantcontributorto their financialwell-being. They
were often paid handsomesalarieswhen appointedto a judgeship,but
they also received generous grantsas private scholars. On the other
hand,the governmentwas in dire need of legitimization,which it found
in the circlesof the legal profession. It was one of the salientfeaturesof
the pre-modemIslamic body-politic that it lacked systematic control
over the infrastructuresof the civil populationsit ruled. The legists
servedthe rulersas an effective tool for reachingthe masses fromwhose
ranksthey emergedandwhom they servedandrepresented.
Hence the religious scholarsin generalandthe legists in particular
were often called upon to express the will and aspirationsof those
belonging to the non-elite classes. They not only intercededon their
behalf at the higher reaches of power, but also representedfor the
masses the ideal of piety, rectitude and fine education. Their very
profession as Guardiansof Religion, experts in religious law and
exemplarsof virtuousMuslim lifestyle made them not only the most
genuine representativesof the masses but also the true "heirs of the
Prophet,"as one Propheticreportcame to attest.13
The rulersthereforehad no option but to endorseboth the jurists
and the religiouslaw whose authoritydependedon the humanabilityto
exercise eruditehermeneutic. Those who perfectedthis exercise were
the jurists, and it was they and their epistemologicaldomainthat set
restrictionson the absolute powers of the rulers, whether they were
caliphs,provincialgovernorsor theiragents.
The prestigethe juristsacquirednot only broughtthem easy access
to the royal court and to the circles of the political elite,14 but also
renderedthem highly influential in governmentpolicy as it affected
legal matters,and perhapsin other mattersof state. Almost all major
judicial appointmentswere made at the recommendationof the Chief
Justice at the royal court or the assembly of jurists gatheredby the
caliph, or both. At times, the jurists' influencein politicalmatterswas
immeasurable. Our sources portraythem as men of learning who
managedto make themselves equally accessible to both the common
folk and high society, includingthe supremerulers. Some of them are

13. Abu 'UmarYusuflbn 'Abd al-Barr,Jami' Bayanal- 'Ilmwa-Fadlihi,I, 34 (n.d.).

14. Waki',Akhbaral-Qudat,3 vols. III,'158, 174, 247, 265, (n.d.)andpassim;Shamsal-Din
Ibn Khallikan,Wafayatal-A'yan,4 vols., II, 321, 322 (n.p. 1997); III, 204, 206, 247, 258, 388,
389; andal-Khatibal-Baghdadi,TarikhBaghdad,14 vols., IX, 66 (n.p. 1931).
243] JURISTICAUTHORITYVS.STATEPOWER 253

reportedas havingbeen inordinatelyinfluentialin the royalcourts,to the

extent of "dominating"the caliphs. In the OttomanEmpire,whose life
spanneda good five centuries,this fundamentaldependenceon the legal
professionled to the creationof the office of Shaykhal-Islam,the chief
mufti, who occupied the second highest rank of governanceafter the
caliphhimself andwhose authorityacted as a brakeon thatof the latter.
In the wordsof a distinguishedOttomanist,the Shaykhal-Islam
actedas thereligiousadvisorof the sultan.He was regardedas the
most exaltedpersonagein the wholereligiousorder:it was a sign
of his freedomof judgmentandhis powerto curbandrebukethe
holdersof powerthathe was nota memberof the sultan'sdivanof
highofficials.'5
That the caliphs and sultansstrove to acquirelegitimacythrough
religiousandjuristic channelsis thereforeabundantlyobvious. But this
cannot mask the fact that there always remained a point of friction
between worldly, secular power and religious law. This relationship
between the two was constantlynegotiated,and it was never devoid of
sporadicchallengesmountedby political forces againstthe law and its
representatives.This was most obvious at the provincialandperipheral
levels, but there was a marked decrease in the frequency of such
challengesas they occurrednearerthe centerof politicalpower. For the
caliph or sultan perceived himself, and was generally perceived, as
upholdingthe highest standardsof justice accordingto the holy law; and
with this moral responsibility, he generally conducted himself in
accordancewith these expectations.
The overwhelmingbody of evidenceat our disposalcompels us to
conclude that, as a rule, the caliphs, sultans and their provincial
representativesupheldcourtdecisionsandnormallydid not intervenein
the judicial process.16 However, when caliphs or their subordinates
became involved in the judicialprocess-however rarely-it was often
the case thatthey did so within the standard,acceptablelegal channels.
They generally complied with the law, if for no other reason than in

15. AlbertHabibHourani,A Historyof the ArabPeoples 224 (BelknapPressHarv.U. Press

1991).
16. This is borneout by the fact thatthe sourcesrecordthe unusual,those eventsworthyof
note, because they stood out from the rest. Biographersand historianswere not interestedin
recordingthe day-to-dayroutineof thejudiciary,andif we know somethingaboutthis routine,it
is becauseit often creepsinto those relativelyfew accountsof an unusualnature. Thus,whatever
caliphalor governmentalencroachmenton thejudiciaryhappenedto be recordedin the historical
annalsof Islam,they were likely to havebeen exceptionalcases and,therefore,statisticallyout of
proportionto the-probably hundredsof thousandsof-cases thatwent unnoticeddue to the fact
thatthey were"usualcases"in whichlaw andthejudicialprocesstook theirnormalcourse.
254 JOURNALOF LAW& RELIGION [Vol. XIX

orderto maintaintheirpoliticallegitimacy. Yet, it appearsreasonableto

assume that their compliance stemmed from their acceptance of
religiouslaw as the supremeregulatoryforce in both society andempire,
coupled with the conviction that they were in no way rivals of the
religious legal profession. Instances of judges deciding in favor of
personswho litigatedagainstcaliphs and governorsare well-attestedin
the literature,with the latteracceptingand submittingto such verdicts.17
The relativeinfrequencyof the rulers'encroachmenton the legal sphere
appearsto follow a particularpattern,namely, that such infringements
were usually associatedwith cases in which the rulers' own interests
were involved. Although this in no way means that encroachment
occurred whenever such interests were present, it does suggest that
wheneverrulersstakedtheirinterestin the judicialprocess,they had to
weigh their overallgains and losses. To have accomplishedtheir ends
throughcoercionwould have meantthat theirlegitimacyhad failed the
test. On the otherhand,total compliancewith the law at times meant
thattheirquestfor materialgain or will-to-powerwould be frustrated.It
was this equationthatthey attemptedto work out and balancecarefully,
at times succeedingand at others failing. Pre-moder Islamic history
suggests that rulersgenerallypreferredto maintainan equationin favor
of compliancewith the religious law, since compliancewas the means
by which the ruling elite could garer the sympathies,or at least tacit
approval,of the populaceandits legal representatives.To say thata rule
of law prevailed in pre-modem Islamic societies, polities, and
civilizationsis merelyto statethe obvious.
Enterthe modem legal reformwhose most significantfeaturewas
the transformation thattook place in the commandof the law, wherethe
nation-stateassumeda new role. Whereasthe traditionalruler,as we
saw, consideredhimself subject to the law and left the judicial and
legislative functionsand authorityto the legal profession,the modem
nation-statereversedthis principle,thereby assumingthe authorityto
dictate what the law is or is not. The ruler's traditionalrole was
generallylimited to the appointmentand dismissal of judges, coupled
with the occasionalenforcementof the qadi's decisions. Interferencein
the legislative processes,in the determinationof legal doctrine,and in
the overallinternaldynamicsof the law was nearly,if not totally,absent.
In this context, one must not exaggeratethe importanceof the
Ottoman siyasa shar'iyya and the qanunnames (which were no more

17. See e.g. IbnKhallikan,Wafayat,III, 392; and Ibn 'Abd Rabbih,al- 'Iqdal-Farid,ed. M.
al-'Aryan,8 vols. I, 38-48 (n.p. 1953).
243] JURISTICAUTHORITYVS.STATEPOWER 255

than episodic regulationspromulgatedby the Empire)that this siyasa

generated. It has been the argumentof some historiansand political
scientiststhatcentralization-a necessaryconditionof the nation-state-
and governmentlegislation have begun early in Ottomantimes, thus
ushering in the transformationsthat led to government-controlled,
codified legal systems.18 This argument,however, is largely, if not
entirely,unfounded,precisely because the Muslim "state,"at its most
active period of judicial interference,never managed to effect any
control over the law as a reasoneddoctrineapplied to a sociological
context. The state'srole, in otherwords,remained-until the reforms-
significantlymarginalboth as a legislator and as determinantof legal
authority. With the onset of the reforms,however,the modem nation-
state arrogatedto itself the statusof a legislatorand,at the same time, a
position above the law. Legislative interference,often arbitrary,has
since become a centralfeatureof modem reform,and is itself evidence
of the dramaticshiftin the balanceof legal power.'9
A direct effect of this shift was the adoptionby the new nation-
state of the model of codification,therebyalteringthe natureof the law.
Codification is not an inherentlyneutral form of law, nor is it an
innocenttool of legal practice,devoid of politicalor othergoals. It is a
deliberatechoice in the exercise of politicalandlegal power,a meansby
which a consciousrestrictionis placed upon the interpretivefreedomof
jurists,judges and lawyers.20 In the Islamic context, the adoptionof
codification has an added significance since it represents a highly
efficacious modusoperandithroughwhich the law was refashionedin
structuredways. Among otherthings,it precludedthe traditionalmeans
of the law fromever cominginto play.
An essentialtool, indeed a vital component,of the nation-stateis
centralization. In additionto codification,which could not have been
achieved without this tool, centralizingmechanisms were carefully
harnessedto confiscatethe realm of law in favor of state control. As
early as 1826, for example, the OttomanSultan MahmudII and his
advisorscreatedthe so-called Ministryof ImperialPious Endowments

18. The implicationbeing that the modernlegal reformsrepresentindigenousdevelopments

andareindependentof colonialdomination.Thisargumentis advancedtypicallyby bothMuslim
apologistsand some Orientalists;the formerseeking to show the inner capabilityof Islam to
achieve"progress"as Europewas able to do, while the latterto exonerateEuropeof its colonialist
liabilities. This Orientalistargumentmay also derive from the erroneousassumptionthat
modernity,in all its features,is a universalphenomenonthatis as muchEasternas Western.
19. See Wael Hallaq,Can the Shari'a be Restored?,in IslamicLaw and the Challengesof
Modernity21-53 (YvonneY. Haddaded., WalnutCreek2004).
20. PaulKoschaker,Europaunddas romischeRecht183 (n.p. 1966).
256 JOURNALOF LAW& RELIGION [Vol. XIX

which brought the administrationof the Empire's major waqfs

(charitabletrusts)undercentraladministration.21 All majorendowments
alongwith theirrevenuesand assets-that supportedlegal educationand
were supervisedfor centuriesby the legal profession in the Empire's
various regions-came under Istanbul's direct supervision. This
commandeeringof resources ushered in a new era during which the
jurists graduallylost control over their own source of power, making
them heavily dependenton state allocations which diminished in a
steadyand systematicmanner.
But this was not all. The chipping away of the powers of the
religious elite was acceleratedby the creationof alternativeelites that
beganto be formedduringthe firsthalf of the nineteenthcentury. Under
Mahmud II, there was already a proliferationof technical schools
independentof the religiouscolleges, schools thaterodedthe monopoly
traditionallyenjoyedby the religiousinstitutionsover the legal system.
As if this were not enough, both the Ottomansultans and the local
Egyptianrulerscreateda new body of legal professionalswho began to
displacethe traditionallegal elite. Withthe adoption-indeed, coercive
enforcement22-of Western-stylehierarchicalcourts and law schools,
these new elites were easily incorporatedinto the emerging legal
structures,while, at the same time, the traditionallegal profession,
nearlybankruptandweak, founditself unequippedto deal with this new
reality. The new courtsoperatedon the basis of codes, and the lawyers
who staffed them had little, if any, knowledge of the workings of
religiouslaw, whetherdoctrinally,judiciallyor otherwise. On the other
hand, while the foreign legal elements were incomprehensibleto the
traditionallegal hierarchy,their madrasas, which depended almost
exclusivelyon the dwindlingwaqfrevenues,were systematicallypushed
aside, and later totally displaced by modem, university-basedlaw
faculties. The traditionallegal specialists lost not only their judicial
offices as judges, legal administrators and courtofficials, but also their
teachingposts and educational functions,that is, the backboneof their
very existence as a profession. This loss constitutedthe coup de grace,
for not only did it rob them of theircareersbut also of theirprocreative
faculties:they were no longer allowedto reproducetheirpedigree. The
ruin of the madrasa was the ruin of Islamic law, for its compass of

21. MadelineC. Zilfi, "TheIlmiyeRegistersand the OttomanMedreseSystem Priorto the

Tanzimat,"Contributionia 'histoireeconomiqueet sociale de I'Empireottoman309-327 (n.p.
1993).
22. Cf. NathanJ. Brown,TheRule of Law in the Arab World:Courtsin Egyptand the Gulf
26-29, 33-40 (CambridgeU. Press1997).
243] JURISTICAUTHORITYVS.STATEPOWER 257

activitiesepitomizedall thathadmade Islamiclaw whatit was.

Thus, the demise of the Shari'a was assured by the strategy of
"demolish and replace:" The weakening and final collapse of
educationalwaqfs, the madrasa,positive Islamic law and the Shari'a
court was collaterally,diachronicallyand causally conjoinedwith the
introductionof state finance (or, more accurately,finance throughthe
controllingagency of the state), Western-stylelaw schools, European
codes anda Europeancourtsystem.
Whathas remainedof the traditionalsystemin the moder codes is
little, indeed no more than a veneer. Penal law, land law, commercial
law, torts,procedurallaw, bankruptcy,and much else have been totally
replaced by their Europeancounterparts,and supplemented,in due
course, by several other codes and regulations, such as the law of
corporations,copyrightlaw, patent law and maritimelaw. Traditional
doctrinesare still to be found in the law of personal status,but these
have been uprootedfrom theirindigenouscontext, a fact bearingmuch
significance. As is well-known,one of the modernists'favoritetools is
the methodof takhayyur,namely,picking and choosinglegal rules from
a variety of sources.23Thus, the principlesand rules of the marriage
contract,for instance,may draw on more than one Sunni legal school,
expediencybeing the sole rationaleand motive, with the result that an
arbitraryamalgamationof doctrines make up much of reformist
"methodology." For modernlegislators in Sunni countrieshave even
resortedto Shi'i law in order to supplementtheir civil codes where
Sunni law was deemed insufficient for their needs.24 And they have
been daringnot only in terms of the sources on which they draw, but
also in the mannerin whichthey drew on traditionaldoctrine:they often
combined,in a processknownas talfiq, severalelementspertainingto a
single issue frommorethanone source,irrespectiveof the positive legal
principles, reasoning and intellectual integrity that gave rise to the
rulings in the first place. This approachis arbitraryin that it does not
take into serious account-as it ought to-the subtle and intricate
connectionthatexists betweenthe social fabricand the law as a system
of conflict resolutionand social control. These considerations,on the
otherhand,were ever-presentin the minds of the traditionaljurists and
the systemtheyproduced,a fact thatexplainsthe constancyand stability
of classicalIslamiclaw overthe long courseof twelve centuries.

23. Sir James Norman Dalrymple Anderson, Law Reform in the Muslim World 34-85
(AthlonePress 1976).
24. Id.
258 JOURNALOF LAW& RELIGION [Vol. XIX

The point I wish to make is thatthe transpositionof the command

of the law from the hands of the faqihs (the traditional legal
professionals) to those of the state represents the most important
phenomenonof modem legal reform,one that signified simultaneously
the eternalloss of epistemic authorityand the dawningof the much-
abhorredauthorityof the state. The emergenceof the stateas carrierof
legal authority(or, strictly speaking, legal power) is seen as doubly
repugnantin Islamic countriesnot only because the state appropriated
law fromthe community-rootedgroupsof the religiousjurists,but also
because it had shown itself, for over a millennium,to be an entity
severely lacking in religiosity,piety and rectitude. If Islamic law had
representedto Muslimsthe best of "din"(religion)then the state stood
for the worst of"dunya"(worldlyexistence). Withthe appropriation of
law in the wake of the reforms,the statehas sunkinto even lower levels
of repugnancy. It committeda third felony: it substitutedGod's law
with a foreignlaw; and to make things much worse, a fourthfelony, it
chose none otherthanthe law of the colonizersto do so.
If modern Muslims are demandinga returnto the Shari'a, it is
because of theirperceptionthat all these violationshave wreakedhavoc
with their lives. The modern "Muslim"nation-state(however many
contradictionsmay lie in this phraseology)has not commanded,nor is it
likely to command,the conformityof the Muslim masses to its will,
much less their respect. Put differently,the moder "Muslim"nation
state failed to gain authorityover its subjects, for authority,unlike
power, does not necessarilydepend on coercion. When the traditional
legal schools acquiredauthority,they did so by virtueof the eruditionof
theirjuristswho provedthemselvesnot only devotedto the best interests
of the umma(whom they servedvery well) but also the most competent
human agency to discover God's law. Their erudition was their
authority, and erudition implied, indeed entailed, a hermeneutical
engagement with the divine texts without which no law could be
conceived. The state,on the otherhand,abandonedGod andHis jurists'
law, and could find no other tools to replaceit thanthe instrumentsof
worldlycoercionandimperialpower.