The Fall and Rise of the Islamic State.
In this short book, the author presents a sweeping historical overview of the balance of powers within Muslim states, focusing on the political role of Muslim scholars in various constitutional arrangements. He argues that, as interpreters of Islam's sacred law and as paragons of justice, these scholars have played in the distant past, and can once again play in the future, a crucial role in counterbalancing the power of rulers. Motivating this historical investigation of the relationship between rulers and scholars is Noah Feldman's desire to contribute to current foreign policy discussions on the future role of Islam.
Three parts make up the book. Part one, "What Went Right," dwells on the political power of scholars over the course of Islam's first millennium. These scholars, the 'ulama, were powerful for several reasons. They were the official custodians of the shari'a, the divine law, in states whose very legitimacy derived from a commitment to enforce this law. Appointed as official judges by caliphs, they settled property disputes, criminal cases, and other legal matters, but following their own understanding of Islamic law rather than any governmental legal code. By exercising their prerogative to support or not to support rulers, they acted as arbiters of a state's religious legitimacy, and they constrained its executive power. "This constitutional arrangement," elaborates Feldman, "made the law supreme. It established, we might even say, the rule of law" (35).
Part two, "Decline and Fall," focuses on the rise of autocratic rule in the Ottoman empire. Its central contention is that codification of the law in the late nineteenth century undermined "the traditional or the classical Islamic constitution," that is, the balance of powers between scholars and rulers (157). In earlier times, scholars had controlled the shari'a in part because it was an unwritten and changing law whose interpretation required their special skills. Codification made scholars dispensable. It enabled the ruler to control the law, supported by Western-trained judges whose role it was to serve the state. As a result, "the state became a totalizing sovereign entity such as never existed before in Islamic history" (79).
Part three, "The Rise of the New Islamic State," deals with the rising power of Islamist parties in our day and age. These parties promise the Muslim electorate to reenact Islamic law as the constitution of the state. But the law that they contemplate differs significantly from the classical model. It is a "shari'a without the scholars," a kind of "democratized shari'a" whereby an elected legislature gains the power to pass new Islamic laws and to abrogate old laws that it deems repugnant (120, 117).
In the first two parts, Feldman largely relies on secondary literature and well-known primary sources. The third part makes a more important contribution to scholarship, based as it is on original research of the websites of Islamist parties and in particular that of the Muslim Brotherhood.
The first part of the book needs special attention because with it Feldman sets out to establish a positive historical model. He posits that premodern Muslim states had what the reviewer would call, to expose Feldman's constitutional logic, "a scholarly branch of government." In Feldman's view, that branch worked with fair success to check the power of the executive branch from the rise of Islam until the late nineteenth century. The main problem is that, in granting scholars such an essential role in government, Feldman relies not on any official constitution nor on any governmental document, but on the grandiose pronouncements of the 'ulama seeking to establish in political treatises what power they wished to wield, in an ideal state. In practice, the 'ulama rarely felt that caliphs followed their vision of the rule of law (the reign of 'Umar the Pious, from 717 to 720, is the exception that proves the rule). And what did they do when they were dissatisfied with the executive power? Typically they kept quiet, by Feldman's own admission (34). In rare cases, individual scholars would refuse to serve a corrupt state or even warn a godless ruler about the punishments waiting for him in hell. But such brave or foolhardy actions by individuals did not turn scholars, collectively, into a branch of government; as a group, they simply lacked an effective, constitutional right to challenge the power of the executive. Moreover, they did not conceive of the balance of powers in modern terms, with categories that derive from the political philosophy of the French Enlightenment.
If Feldman overemphasizes the power of scholars in the premodern period, he underemphasizes it in the modern period. The written codes that emerged in the nineteenth and twentieth centuries normally granted scholars jurisdiction over family law. Feldman sees this as an "insult" that made scholars appear "irrelevant to the broader political order" (107). But marriage laws and inheritance laws have profound political implications; they delimit, for example, what power women can have in Muslim states.
These criticisms are purely historical. But Feldman's key contribution is to foreign policy debates on what institutional role Islam should play in Muslim states. Looking warily at the prevalence of autocratic regimes and at the popularity of Islamist parties, Feldman contributes with this book to the development of a constructive model for the ideal Islamic democracy of the twenty-first century. He envisions Muslim scholars as critical actors in this future state, because of their relatively moderate, learned approach to religion and because of their commitment to the rule of law.
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|Article Type:||Book review|
|Date:||Jun 22, 2010|
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