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Juristic Authority vs. State Power: The Legal Crises of Modern Islam*

Published online by Cambridge University Press:  24 April 2015

Wael B. Hallaq
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Extract

To say that authority is the cornerstone of any law or legal system is to state the obvious. Authority not only defines the law but in effect constitutes it formally and substantively. There can be no functioning law or legal system without an underlying structure of authority that may in turn derive from another power-based or authority-based substrate, such as a state. This much we take for granted.

Although it is commonplace for the Western lawyer or jurist to view the state as a body wielding and exercising legal authority, such a view is neither obvious nor normative for his Muslim counterpart, and even less obvious by far to the Muslim masses around the world. Yet, paradoxically, the great majority of today's Muslim countries run their legal systems on the operative—and very concrete—assumption that it is the state that produces legal authority. In other words, within the national body politic of each modern Muslim country there lies a source of legal power that presumably legitimizes and enforces both the public actions of the law and the provisions that govern the private sphere.

Type
Articles
Information
Journal of Law and Religion , Volume 19 , Issue 2 , 2004 , pp. 243 - 258
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2003

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Footnotes

*

This essay represents a slightly revised version of a paper presented at the Middle East Legal Studies Seminar, held by Yale Law School in Granada, Spain, in January 2003.

References

1. Tyan, Emile, Judicial Organization, in Law in the Middle East 236, 259–263 (Khadduri, M. & Liebesney, H.J. eds., The Middle East Inst. 1955)Google Scholar.

2. Hallaq, Wael, Authority, Continuity and Change in Islamic Law 1–23 and passim (Cambridge U. Press 2001)CrossRefGoogle Scholar.

3. Id. at 1-23.

4. See id. at 86-120.

5. Id. at 166-235.

6. Some jurists occupied more than one of these functions. They may have been simultaneously judges, muftis, and author-jurists. A distinguished mufti or author-jurist, when facing a difficult case in his capacity as a judge, may deal with it himself, but when he does, he is not acting solely as a judge. A “judge qua judge” is one who operates as a qadi when he either cannot or does not (wish to) wear the other hats of mufti or author-jurist. See Hallaq, supra n. 3, at 167-174.

7. This explains why the legal culture of Islam did not acknowledge as important the collection and publication of court decisions, for the law was instead to be found in the “published” writings of the mufti and author-jurist.

8. Hallaq, supra n. 3, at 136-235.

9. al-Haskafi, ‘Ala’ al-Din, al-Durr al-Mukhtar, 8 vols. (n.p. 1979), I, 72–73Google Scholar; ‘Abidin, Ibn, Sharh al-Manzuma, in ‘Abidin, Ibn, Majmu’ Rasa ’il, 2 vols. (n.p. 1970), I, 38Google Scholar; al-Haytami, Ibn Hajar, al-Fatawa al-Kubra, 4 vols. (1938), IV, 293Google Scholar; and al-Hattab, Muhammad, Mawahib al-Jalil, 6 vols. (Tarablus 1969), I, 36Google Scholar.

10. See id.; Hallaq, supra n. 3, at 166-235; and Hallaq, Wael B., ‘From Fatwas to Furu’: Growth and Change in Islamic Substantive Law, 1 Islamic L. & Socy. 29 (1994)Google Scholar.

11. See van Creveld, Martin, The Rise and Decline of the State 189–335 (Cambridge U. Press 1999)CrossRefGoogle Scholar.

12. The next few paragraphs draw on my work The Origins and Evolution of Islamic Law ch. 8 (Cambridge U. Press forthcoming 2004).

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15. Hourani, Albert Habib, A History of the Arab Peoples 224 (Belknap Press Harv. U. Press 1991)Google Scholar.

16. This is borne out by the fact that the sources record the unusual, those events worthy of note, because they stood out from the rest. Biographers and historians were not interested in recording the day-to-day routine of the judiciary, and if we know something about this routine, it is because it often creeps into those relatively few accounts of an unusual nature. Thus, whatever caliphal or governmental encroachment on the judiciary happened to be recorded in the historical annals of Islam, they were likely to have been exceptional cases and, therefore, statistically out of proportion to the—probably hundreds of thousands of—cases that went unnoticed due to the fact that they were “usual cases” in which law and the judicial process took their normal course.

17. See e.g. Khallikan, Ibn, Wafayat, III, 392Google Scholar; and Rabbih, Ibn ’Abd, al- ’Iqd al-Farid, ed. al-‘Aryan, M., 8 vols. I, 38–48Google Scholar (n.p. 1953).

18. The implication being that the modern legal reforms represent indigenous developments and are independent of colonial domination. This argument is advanced typically by both Muslim apologists and some Orientalists; the former seeking to show the inner capability of Islam to achieve “progress” as Europe was able to do, while the latter to exonerate Europe of its colonialist liabilities. This Orientalist argument may also derive from the erroneous assumption that modernity, in all its features, is a universal phenomenon that is as much Eastern as Western.

19. See Hallaq, Wael, Can the Shari‘a be Restored?, in Islamic Law and the Challenges of Modernity 21–53 (Haddad, Yvonne Y. ed., Walnut Creek 2004)Google Scholar.

20. Koschaker, Paul, Europa und das römische Recht 183 (n.p. 1966)Google Scholar.

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22. Cf. Brown, Nathan J., The Rule of Law in the Arab World: Courts in Egypt and the Gulf 26-29, 33–40 (Cambridge U. Press 1997)CrossRefGoogle Scholar.

23. SirAnderson, James Norman Dalrymple, Law Reform in the Muslim World 34–85 (Athlone Press 1976)Google Scholar.

24. Id.