Peace Be Unto Those Who Follow Right Guidance.

Recently, I have been reading Speaking in God's Name: Islamic Law, Authority and Women (2001) by Muslim jurist, Professor of Law and self-styled 'moderate' (sic), Khaled Abou El Fadl. It makes for excellent reading and complements another work, And God Knows The Soldiers: The Authoritative and Authoritarian in Islamic Discourses (2001), which is also highly impressive.

In the former work, El Fadl draws out some of the consequences of the impact of colonialism on Muslim societies with particular reference to the destruction of Islamic legal institutions and their supporting infrastructure. This theme is explored further in a later work, The Great Theft: Wrestling Islam from The Extremists (2005), in which El Fadl draws attention to the undermining of juristic authority through state centralisation.

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The impact of state centralisation on juristic authority is examined in greater detail by McGill Professor of Islamic Law, Wael Hallaq, in "Can The Shari'ah Be Restored?" and, more recently, "Juristic Authority vs. State Power: The Legal Crises of Modern Islam", Journal of Law and Religion, 19, 2 (2003-04): 243-258. According to Hallaq, "an essential tool, indeed a vital component, of the nation-state is centralisation" which was harnessed "to confiscate the realm of law [that is, the authoritative] in favour of state control [that is, the authoritarian]." (p.255)

Hallaq, makes a number of interesting points regarding the nature of the relationship between legal and political authority within the pre-modern Islamic polity. For example, he maintains that in the pre-modern - which means pre-statist - era, "Islamic law was a system that operated outside of 'state' and government influence. And it did so with remarkable independence and success." On his view, "the Islamic 'state', like all its pre-modem counterparts, did not develop the features that have come to exist in the European nation-state" (p.50), principal of which is centralisation of authority in the state/governing apparatus.

According to Hallaq, "the perception of authority lodged in [nation] states was introduced in [Muslim] nations only during the 19th and 20th centuries" as a consequence of "the systematic demolition of legal authority." (p.244) This "legal (if not cultural and social) rupture that occurred with the introduction of so-called 'modern reform'" (p.243) resulted from "the adoption - indeed coercive enforcement - of Western-style hierarchical courts and law schools." (p.256)

This raises an interesting point from an Islamic counter-racist perspective concerning the driving force behind adoption. Irrespective of whether "Western powers" [= White Supremacy (Racism)] were directly involved in this process, employing coercive pressure - the threat of violence - on Muslim rulers to carry out the 'necessary' (sic) centralising reforms, or whether more indirect methods were used - such as deceit and/or the implanting of 'Western' ideas in Muslim consciousness through agents (such as government advisors, educators, propagandists etc), the effect is the same: The 'Whitening' of the Muslim polity in the transformation of the Islamic 'state' into Muslim (nation-)states and the abolition of the pluralistic autonomy of Islamic law. Hallaq alludes to this in stating that

With the appropriation of law in the wake of the reforms, the [Muslim] state has sunk into even lower levels of repugnancy. It committed a third felony: it substituted God's law with a foreign law; and to make things much worse, a fourth felony, it chose none other than the law of the colonisers to do so [emphasis added]. (p.258)

According to Hallaq, "in the process of reform, which was intimately associated with the building of the 'Muslim' nation-state, the law was appropriated by this state from the hands of a professional legal elite." (p.244) He goes on to state that "the nation-state operated and still operates in the manner of a corporate entity backed by a trenchant national ideology and an all-pervading episteme (to borrow from M. Foucault) that go far beyond the personal will-to-power of the ruler." (p.250) This stands in contrast to the pre-modern Islamic polity, one of whose salient features was that "it lacked systematic control over the infrastructures of the civil populations it ruled." (p.252)

Significantly, Hallaq points out that notions such as the separation of powers between the legislative and the executive, and the rule of law were present in the pre-modern Islamic 'state' polity, anticipating by centuries the institutional foundations of modern liberal democracies:

[The] disjunction between the political and the legal constituted the unshakable foundation of the separation between what might roughly be called here the judicial and the political-executive powers, a separation that is nowadays deemed essential in liberal democracies. (p.251)

To say that a rule of law prevailed in pre-modern Islamic societies, polities, and civilizations is merely to state the obvious. (p.254)

Crucially, Hallaq maintains that "the Muslim 'state', at its most active period of judicial interference, never managed to effect any control over the law as a reasoned doctrine applied to a sociological context ... With the onset of the reforms, however, the modem nationstate arrogated to itself the status of a legislator and, at the same time, a position above the law." (p.255)

According to Hallaq,

the demise of the Shari'a was assured by the strategy of "demolish and replace:" The weakening and final collapse of educational waqfs [charaitable trusts], the madrasa, positive Islamic law and the Shari'a court was collaterally, diachronically and causally conjoined with the introduction of state finance (or, more accurately, finance through the controlling agency of the state), Western-style law schools, European codes and a European court system.

What has remained of the traditional system in the modem codes is little, indeed no more than a veneer. Penal law, land law, commercial law, torts, procedural law, bankruptcy, and much else have been totally replaced by their European counterparts, and supplemented, in due course, by several other codes and regulations, such as the law of corporations, copyright law, patent law and maritime law. (p.257)

Hallaq also points to the way in which financial support for educational institutions was withdrawn, thereby undermining the 'genetic' - that is, reproductive - basis of Islamic jurisprudence:

madrasas, which depended almost exclusively on the dwindling waqf revenues, were systematically pushed aside, and later totally displaced by modern, university-based law faculties. The traditional legal specialists lost not only their judicial offices as judges, legal administrators and court officials, but also their teaching posts and educational functions, that is, the backbone of their very existence as a profession. This loss constituted the coup de grace, for not only did it rob them of their careers but also of their procreative faculties: they were no longer allowed to reproduce their pedigree. The ruin of the madrasa was the ruin of Islamic law... (p.256)

According to Hallaq, "the transposition of the command of the law from the hands of the faqihs (the traditional legal professionals) to those of the state represents the most important phenomenon of modem legal reform, one that signified simultaneously the eternal loss of epistemic authority and the dawning of the much abhorred authority of the state." (p.258)

For this reason, Hallaq maintains that

The constant and consistent popular call to restore the Shari'a — a call that, at a minimalist interpretation, unmistakably resounds in a deep search for cultural and political identity ... amounts to nothing less than displacing the existing legal structures of the modern nation-state, very much in the same way that these very structures were created to displace the Shari'a during the past two centuries. The call to restore the Shari'a — however varied the contents of the call may be — is in effect an appeal to a counter-revolution. (p.244)

Peace