Shari'a and the Power of Decree in the Muslim State
Continuing on with our Abu Hurayra saga from two posts ago, and on the theme from the last post on the importance of state law in understanding social order in Muslim states, the eminent Sheikh Tantawi, after having spent some time excoriating the newspapers for attacking the person of Abu Hurayra as we discussed, then asked Egyptian President Hosni Mubarak to step in and do something about it.
Now this, to me, is quite interesting. The Azhar scholars have decided that there is some sort of massive shari'a violation going on, admit they don't have the right to issue a decree (حق المصادرة) is the term they used and so go to the guy who does have the authority and ask him to issue the decree. So then the question necessarily arises, why don't the scholars have any authority here, and Hosni Mubarak does?
Is it because the shari'a gives such power to Hosni Mubarak? That's a tough sell, indeed an impossible sell I think. The claim that this is just the same thing as the old classical empire, where the jurists set the shari'a rules and the caliph passes administrative regulations, the siyasa, makes no sense here to my mind. If that was the case, why aren't the jurists able to prosecute or issue a decree enforced in the courts? Why can't a judge just do it, on the grounds that the fiqh is being violated? If state law works within shari'a, well then we shouldn't need state law here, we already have shari'a, just bring the guy up to the shari'a court, and apply the damn rule already.
But you can't. No lawyer within Egypt, Islamist or secular, would think you could. The reason Hosni Mubarak can issue the decree and the jurist cannot and the judge cannot is because the state law permits him to do it. This is important. If the state law changed, and Parliament passed a rule saying a judge could do it, or the Azhar could do it, then they could. If the vote lost in Parliament by one vote, they couldn't. If they said the judge could with the permission of the Azhar, then that's what we'd do. If they said that and Hosni issued a veto then it's no good. So where's the shari'a. It is present, but the determination about whether or not God's Law is enforceable and how (not how to do traffic a la the caliph's siyasa but how and whether and in what way to enforce sharia) is then not up to anyone but the apparatus of the state, passing the positive law through what is known as a "rule of recognition." (ie we recognize the process as the one that results in law, such as it passes both Houses of Congress and is signed by the President.)
God's Law, as law, is meaningless if not endorsed by the rule of recognition. And to say well in Iran it is different is not true. It's not that the positive law is subverted to shari'a, it's that the rule of recognition is transformed so that the Supreme Leader is the one issuing the decree. He still follows state processes (vetoing, for example, only when it is his turn, after the Council of Guardians have voted, according to legal process). Ask an Iranian lawyer, "how come when Khamene'i speaks, the judges have to follow it" and he will not say "because the hand of the Mahdi is over him", he will say "because provision X of the Constitution says as much, in circumstances x or y or z." The former isn't meaningful in today's world, it's not what gives you power or legal authority. A pretender who comes in and claims he has the right hand of the Mahdi over HIM doesn't have any legal authority even if some believe him, unless he gets so popular he takes over the state, and then changes the law and maybe even the rules of recognition, to say as much. Note what grants the authority to shape so much of the social order--the law, and the state.
But see how different this is from the argument that is commonly and to my mind repeatedly erroneously made in our academy. To most, it is the law that has to justify itself with reference to shari'a. If the law doesn't meet shari'a standards, then it's not really law to the Muslim state, or so it is argued. I don't see that. If that was the case, if the law was part of an overarching shari'a system, then we wouldn't use it here in the Abu Hurayra case. We'd say the jurists have decided this violates shari'a, judges do your work. Find a judge who will act on the basis of that in Egypt, or even Iran. I thnk shari'a is only enabled through the law. The only way shari'a makes its way in here is because the law lets it. It is pure state positivism, neither the jurist at the Azhar, nor the Islamist Muslim Brotherhood member, nor Hosni can conceive of it any other way.
The state, that thing created not by God but by Sykes and Picot, not with Revelation but with the end of WWI, and certainly not on the basis of fulfilling God's Will, is the touchstone of legitimacy. If you are going to ban something in Egypt, find a law that lets you do it, and use state legal processes. If you can't, I don't care how much of a shari'a violation it is, you cannot do it. Nobody would think you could, in Egypt, in Iraq, in Pakistan, even in Iran. (Let's exempt Saudi just for now, though I think it's much the same with some nuance--law by delegation.) It's done by law.
That's the reason the Islamist is so obsessed with controlling the apparatus of state power. Because to say shari'a means nothing unless the state, and the law, make it so. The Islamist is of our times, this is the only way he knows too, no less the legal positivist than I am. We cannot change the clock, the caliphs and the jurists are dead and cannot be resurrected. we live in different times now, times where, if there is a coordinated assault on Islam (in the Azhar's eyes), there is but one path to shut it down legitimately--reliance on the state and its apparatus, in other words, the law. Nobody else, but the state, has the power to issue the decree.
Though I'm sure you won't be hearing much of that at the Prince Alwaleed bin Talal Center for Muslim Christian Understanding. . . . .
HAH
Now this, to me, is quite interesting. The Azhar scholars have decided that there is some sort of massive shari'a violation going on, admit they don't have the right to issue a decree (حق المصادرة) is the term they used and so go to the guy who does have the authority and ask him to issue the decree. So then the question necessarily arises, why don't the scholars have any authority here, and Hosni Mubarak does?
Is it because the shari'a gives such power to Hosni Mubarak? That's a tough sell, indeed an impossible sell I think. The claim that this is just the same thing as the old classical empire, where the jurists set the shari'a rules and the caliph passes administrative regulations, the siyasa, makes no sense here to my mind. If that was the case, why aren't the jurists able to prosecute or issue a decree enforced in the courts? Why can't a judge just do it, on the grounds that the fiqh is being violated? If state law works within shari'a, well then we shouldn't need state law here, we already have shari'a, just bring the guy up to the shari'a court, and apply the damn rule already.
But you can't. No lawyer within Egypt, Islamist or secular, would think you could. The reason Hosni Mubarak can issue the decree and the jurist cannot and the judge cannot is because the state law permits him to do it. This is important. If the state law changed, and Parliament passed a rule saying a judge could do it, or the Azhar could do it, then they could. If the vote lost in Parliament by one vote, they couldn't. If they said the judge could with the permission of the Azhar, then that's what we'd do. If they said that and Hosni issued a veto then it's no good. So where's the shari'a. It is present, but the determination about whether or not God's Law is enforceable and how (not how to do traffic a la the caliph's siyasa but how and whether and in what way to enforce sharia) is then not up to anyone but the apparatus of the state, passing the positive law through what is known as a "rule of recognition." (ie we recognize the process as the one that results in law, such as it passes both Houses of Congress and is signed by the President.)
God's Law, as law, is meaningless if not endorsed by the rule of recognition. And to say well in Iran it is different is not true. It's not that the positive law is subverted to shari'a, it's that the rule of recognition is transformed so that the Supreme Leader is the one issuing the decree. He still follows state processes (vetoing, for example, only when it is his turn, after the Council of Guardians have voted, according to legal process). Ask an Iranian lawyer, "how come when Khamene'i speaks, the judges have to follow it" and he will not say "because the hand of the Mahdi is over him", he will say "because provision X of the Constitution says as much, in circumstances x or y or z." The former isn't meaningful in today's world, it's not what gives you power or legal authority. A pretender who comes in and claims he has the right hand of the Mahdi over HIM doesn't have any legal authority even if some believe him, unless he gets so popular he takes over the state, and then changes the law and maybe even the rules of recognition, to say as much. Note what grants the authority to shape so much of the social order--the law, and the state.
But see how different this is from the argument that is commonly and to my mind repeatedly erroneously made in our academy. To most, it is the law that has to justify itself with reference to shari'a. If the law doesn't meet shari'a standards, then it's not really law to the Muslim state, or so it is argued. I don't see that. If that was the case, if the law was part of an overarching shari'a system, then we wouldn't use it here in the Abu Hurayra case. We'd say the jurists have decided this violates shari'a, judges do your work. Find a judge who will act on the basis of that in Egypt, or even Iran. I thnk shari'a is only enabled through the law. The only way shari'a makes its way in here is because the law lets it. It is pure state positivism, neither the jurist at the Azhar, nor the Islamist Muslim Brotherhood member, nor Hosni can conceive of it any other way.
The state, that thing created not by God but by Sykes and Picot, not with Revelation but with the end of WWI, and certainly not on the basis of fulfilling God's Will, is the touchstone of legitimacy. If you are going to ban something in Egypt, find a law that lets you do it, and use state legal processes. If you can't, I don't care how much of a shari'a violation it is, you cannot do it. Nobody would think you could, in Egypt, in Iraq, in Pakistan, even in Iran. (Let's exempt Saudi just for now, though I think it's much the same with some nuance--law by delegation.) It's done by law.
That's the reason the Islamist is so obsessed with controlling the apparatus of state power. Because to say shari'a means nothing unless the state, and the law, make it so. The Islamist is of our times, this is the only way he knows too, no less the legal positivist than I am. We cannot change the clock, the caliphs and the jurists are dead and cannot be resurrected. we live in different times now, times where, if there is a coordinated assault on Islam (in the Azhar's eyes), there is but one path to shut it down legitimately--reliance on the state and its apparatus, in other words, the law. Nobody else, but the state, has the power to issue the decree.
Though I'm sure you won't be hearing much of that at the Prince Alwaleed bin Talal Center for Muslim Christian Understanding. . . . .
HAH
I will read this post out next Thursday at Georgetown as my own words. But only to mess with you, not to advance the cause of legal positivism.
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Yes Professor March, that's an excellent strategy. Wait for me to post something, announce you are going to plagiarize it, and then do it in a public forum where some number of participants read my blog. Excellent idea, let me know when it's done, so I can be sure to provide another installment of "Really? with Haider Ala Hamoudi"
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This post reminded me of a student in a discussion section on Political Islam which I facilitate and he has this persistent question on the Islamist focus on the state. He asks how can a person be virtuous if he follows the law only because the state enforces it? I keep throwing the question back (its always a point of discussion). Would you have any answer for this?
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I think your student is very much onto something, but I want to distinguish between saying a person "follows" the law because the state enforces it, and that a person "should follow" the law because the state enacts it. There is a difference.
To me, if the only reason the guy cared about the law at all was because the state enforced it and he didn't want to go to jail, there is some bare level of consistency that might exist there. Then the state is the epiphonemenon from which to be alienated, obeyed to the barest minimum level necessary to live in accordance with God's Will (in accordance with the Real Law) and as far away from the state as possible. You follow the law if you have to in order to avoid prison, but ignore it or avoid it in all other instances. There are any number of communities that do this, the Amish, the Kiryat Joel folks, certainly this seemed to be the position of the Najaf seminaries during the Saddam era, even the polygamists in Texas who seemed to have some sort of detente with the state for years until the recent raid. Clearly the extent to which they could ignore state law at some point became an issue.
But the thing is, I don't see Islamists, or any modern Islamic movements, as fitting remotely within this role. They believe in the legitimacy of the law, in the fact that a person SHOULD follow a law, and should follow it because the state enacts it. Rather than telling people to ignore the law, they say that the state has to enact Islamic law. And there IS absolutely a paradox there, because then you ask well what is it that makes it legitimate then, the state enactment or the fact that God wants it? If the latter, why the obsession with state enactment? If the former, then what's wrong with secular law? It doesn't work. Some really smart people have posited answers, some have said that state law is legitimate so long as it doesn't require a Muslim to sin, but that's an answer to some of us, but not those who want Islamic law enacted, obviously they don't share that theory. Some say well the idea is that the state enacts some sort of administrative regulation and more or less organizes shari'a when there isn't agreement on its terms, and while that's the Islamist theory (I think because some awfully smart people named Feldman and Lombardi and Quraishi developed it for them--though let me stress there are differences among those three that are huge), it still doesn't work very well given that the state's enactment of law is not grounded in terms of legitimacy in the fulfillment of God's Will. Yes sure they can enact a provision in the Constitution saying all law must conform to shari'a, but if they didn't, is there a serious contention that the state's pronouncements have lost the character of law? I don't think it's like the caliph, whose authority by necessity is predicated on fulfilling God's Will, of coruse he can fall short by accident, negligence or design, but it's what he claims to do. If he said "I am not God's viceregent", then he is by definition no longer caliph, which is just God's representative on earth. If the constitution drops Article 2, it's still a constitution, and Egypt, or Iraq, is still Egypt, or Iraq, and its legislative enactments are still law.
So there is to me no logical defense for this position, your student is on to something. If you want to know what I'd tell him, well as the Realist, I'd quote Holmes and say "the life of the law is not logic, but experience." Yes it isn't a perfect logical mold, but in our post colonial era, it's the only way law can be made to work sensibly, and so the islamist adopts the theory even with the paradox. It's no less illogical than consideration with a reliance exception, or a firm offer exception, or whatever. We don't make exceptions because they add to the logic, in fact they destroy any hope of internal legal order. But what they do is work, in experience, to help shape social order and so we don't worry about the logical flaws. That's all the Islamist does, to my mind.
HAH
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