On the Primacy of the State in the Organization of Law in Muslim Polities
On Friday I gave a talk at the Annual Meeting of Comparative Law, whose abstract I post below. I will be publishing this in the near future, when it is a full paper, and I will then make sure to post a link to it.
One common theme can be generally gleaned from any projections of the Muslim East in the West, in any Western country, among nearly every community, including, and perhaps especially, our own academic community. This is the perception of the near ubiquitous role of Islam and, more germane to my remarks, Islamic law, of a historic, medieval kind, in governing the legal order of Muslim states. This is not only distorting, it renders the legal systems of the various Muslim states almost unrecognizable to the countless legal professionals—judges, lawyers and academics—who work in them.
The basic problem seems to be the assumption in the West that the law in the Muslim East can only be legitimized and justified through reference to the shari’a, the vast body or rules and norms developed from Islam’s sacred texts. As a result, constitutional provisions relating to the harmony of all law with shari’a, which are in many cases of dubious legal importance as a practical matter, become magnified in the Western academic literature, to the point where one unfamiliar with the region might well be forgiven for thinking entire constitutions were composed of a single article pertaining to shari’a. Other examinations of law in the Muslim world can often take the same tone, and suggest that legitimacy can only be found if a case for harmony with God’s Law might be made.
The fact is that whether a Muslim state remains in the hands of more secular forces or it has elected Islamists, as in Iraq, or Islamists have taken over in one form or another, as was the case certainly in the Sudan and to a lesser extent Pakistan decades ago, fundamental changes are rarely made to the underlying secular foundations of the state. The secular legal codes, the technical, professional, secular legal training of lawyers and judges, and rulemaking authorities, remain unchanged. Inasmuch as shari’a plays a role in the Muslim state, it is because it is legitimized when enacted through state processes. It is then interpreted by secular lawyers with secular legal training to give it force. The West, then, has the Muslim Rest precisely backwards. Shari’a does not justify secular law, but secular law can recognize and employ shari’a as part of the law. It is the state that grants legitimacy and authority to the shari’a as law, and not the reverse.
In my brief remarks, I hope first to expose the Western bias, and then to provide at least rudimentary ideas on how law, both Islamic and secular, in the Muslim world might better be studied and understood, particularly by comparatists.
One common theme can be generally gleaned from any projections of the Muslim East in the West, in any Western country, among nearly every community, including, and perhaps especially, our own academic community. This is the perception of the near ubiquitous role of Islam and, more germane to my remarks, Islamic law, of a historic, medieval kind, in governing the legal order of Muslim states. This is not only distorting, it renders the legal systems of the various Muslim states almost unrecognizable to the countless legal professionals—judges, lawyers and academics—who work in them.
The basic problem seems to be the assumption in the West that the law in the Muslim East can only be legitimized and justified through reference to the shari’a, the vast body or rules and norms developed from Islam’s sacred texts. As a result, constitutional provisions relating to the harmony of all law with shari’a, which are in many cases of dubious legal importance as a practical matter, become magnified in the Western academic literature, to the point where one unfamiliar with the region might well be forgiven for thinking entire constitutions were composed of a single article pertaining to shari’a. Other examinations of law in the Muslim world can often take the same tone, and suggest that legitimacy can only be found if a case for harmony with God’s Law might be made.
The fact is that whether a Muslim state remains in the hands of more secular forces or it has elected Islamists, as in Iraq, or Islamists have taken over in one form or another, as was the case certainly in the Sudan and to a lesser extent Pakistan decades ago, fundamental changes are rarely made to the underlying secular foundations of the state. The secular legal codes, the technical, professional, secular legal training of lawyers and judges, and rulemaking authorities, remain unchanged. Inasmuch as shari’a plays a role in the Muslim state, it is because it is legitimized when enacted through state processes. It is then interpreted by secular lawyers with secular legal training to give it force. The West, then, has the Muslim Rest precisely backwards. Shari’a does not justify secular law, but secular law can recognize and employ shari’a as part of the law. It is the state that grants legitimacy and authority to the shari’a as law, and not the reverse.
In my brief remarks, I hope first to expose the Western bias, and then to provide at least rudimentary ideas on how law, both Islamic and secular, in the Muslim world might better be studied and understood, particularly by comparatists.
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