Reviewed by Shadi Mokhtari, JD, PhD, Managing Editor, Muslim World Journal of Human Rights. Email: mokhtari [at] yorku.ca.
In his book, THE FALL AND RISE OF THE ISLAMIC STATE, Noah Feldman attempts to lend important historical context to the often dehistoricized and decontexualized debates surrounding modern Islamist movements and their calls for the institution of Islamic Law. The book provides a broad discussion of three relevant periods: (1) the golden age of the Islamic state, roughly the time of the Caliphate and strong Ottoman rule, (2) the fall of the Islamic state, coinciding with the implementation of the tanzimat reforms in the Ottoman empire as it neared its decline, and (3) the modern era which has witnessed renewed calls for the reinstatement of the Islamic state. A central thesis of the book is that the contemporary calls for an Islamic state are closely tied to the generally successful historical precedent.
In Part I, Feldman lays out the contours of the classical Islamic constitutional order. As he explains, the Muslim rulers’ legitimacy was traditionally derived from a commitment to upholding the Shari’a. This legitimacy was in large part conferred by Islamic scholars who had the final say on Shari’a dictates, and served the law in the name of God, not the state. The institutional arrangement created a balance of power which checked the executive power of the ruler. The scholars’ power within the arrangement was largely normative, not material. Rulers were compelled to obey scholars’ rulings because not doing so risked being viewed as going against God’s will. Scholars in turn also displayed a willingness to occasionally deploy flexible interpretations to advance rulers’ agendas. Supplemental administrative and criminal laws were permitted as a concession to rulers, as long as they were not deemed to directly contradict Shari’a.
In Part II, Feldman links the decline of the Islamic state to the tanzimat reforms which encompassed both constitutional and legal changes, including codification of Islamic law. Codification transformed Shari’a from the product of perpetual (and thus by definition dynamic) processes of interpretation to a more static and delineated set of rules. It also moved authority over the law from the scholars to the state. Scholars were “relegated to the role of the minor religious functionaries” (p.8) with the purview of family law as their only “consolation prize.” Instead, judges not rigorously trained as Islamic scholars were appointed by the state to administer the law. The fact that law now emanated from the state and not God, translated into judges’ “reluctance to treat organs of the state as subordinate to the law” (p.69).
The collapse of the tanzimat reform process following Saltan Abdulhamid’s dismissal of the legislative body put in [*1017] place by the 1876 Constitution gave way to unchecked executive power – a model Feldman submits has been replicated throughout the region following the disintegration of the Ottoman Empire. No social or political class has ever emerged to successfully fill the vacuum of the scholars as counterweights to executive power since. Further, Feldman argues, while within the traditional Islamic state the rule of law prevailed, the fall of the Islamic state resulted in the demise of the rule of law in the region. The one exception to these trends Feldman cites is Saudi Arabia where scholars retained their pivotal position as interpreters of the Shari’a and there is no written constitution, although the balance of power relationship between scholar and ruler is often compromised by the distorting effects of the Saudi state’s tremendous oil wealth.
Part III considers the continuities and divergences of the classical model and present-day Islamist designs. Feldman argues that the appeal of Islamist movements today is linked to Muslim populations’ desire to return to the past glories of the Islamic state where the rule of law and justice was thought to have prevailed. The most compelling articulation of the argument comes in the following passage:
By invoking the Islamic state governed by the Shari’a, the Islamists tap into the nostalgic and in some ways accurate idea that the classical Islamic state was just – or at least much more just than the autocratic states that the modern era has brought to most majority-Muslim countries. Calling for a return to Islamic law conjures the possibility of repairing the political corruption of the past century and returning to a pure order in which the Shari’a governed social and governmental relations. (pp.112-113).
Elsewhere Feldman states, “The call for an Islamic state is therefore first and foremost a call for law – for a legal state that would be justified by law and governed through it” (p.9).
Yet as Feldman explains, the Islamic state championed by Islamists today is very different from the old Islamic state. There are two primary reasons he cites for this. First, scholars play virtually no material role in contemporary Islamist movements. Islamists largely disregarded the science built around Islamic jurisprudence and instead rely more heavily on the Koran. The egalitarian worldview they adopt holds that anyone can search the Islamic texts and ascertain what Islam decrees. Thus, most contemporary Islamic constitutional arrangements vest the power to determine whether legislation is or is not consistent with Sharia in the hands of non-clerics within the judiciary. Further, while implementing Islamic law is central to their platform, Islamists frequently also emphasize achieving social, political and legal justice by adhering to more flexible (and amorphous) notions of Islamic principles and values.
Second, Feldman argues that mainstream Islamists have in large part accepted the compatibility of democracy and Shari’a. The infusion of democratic principles into their platforms means that Islamists’ endeavors such as the restoration of “just government” become “at once divine and worldly.” This “Democratized Shari’a” in turn faces the challenge of reconciling notions of divine sovereignty with popular sovereignty in order to justify its existence and authority. [*1018]
Feldman maintains that despite the debates in the West, Islamism is now a reality of Muslim world politics. Yet he views Islamic scholars’ role as crucial to the movement’s success: “To restore Islamic law without restoring scholars to their place is to ensure the failure of the project by cutting off the organism from the soul that inhabits it.” In discussing the Iranian experience, Feldman suggests that it was the lack of balance of power between government forces, and not the mere presence of the scholarly class which resulted in the failures of the Islamic Republic. There was in effect what he refers to as an “unfettered, supreme scholarly executive” and no force to check it. Elsewhere Islamists have never been able to demonstrate their ability to succeed or fail because they are frequently undermined as soon as they reach power. Consequently they remain largely untested and as long as that is the case, populations will continue to vote for them.
In the book’s conclusion, Feldman takes up the role of the United States. First, he warns against American support for undermining Islamists, arguing “if the United States acquiesces to the executive’s efforts to repress [Islamists], it sends the message that the United States does not care about the rule of law. By contrast, the Islamists continue to promise justice and the rule of law via the Shari’a.” Yet as anyone familiar with his earlier books as well as his role as an advisor to the United States government in the drafting of the Iraqi constitution may expect, Feldman does not call for the United States to take a hands off approach. He does see an active role for the United States which includes supporting further development of institutions and pressure on regional governments:
Our best efforts must be devoted to building institutions that perceive themselves and are perceived by the public as committed to the rule of law. Aid can be made contingent on respect for the roles of courts and legislatures. Executives can be pressured to adhere to the laws and judgments of coordinate branches of government even (or especially) when no direct foreign interests is at stake. (p.149)
Thus, in the final analysis, Feldman’s prescription is for the United States to continue its nation-building initiatives in the region, but without such an allergic reaction to Islamist movements and their calls for the institution of Islamic law.
Following the historical trajectory presented by Feldman sheds light on the present composition of Islamist movements, particularly the marginalized role of scholars. However, one of the book’s central arguments – that the region’s Islamic constitutional past gives rise to current calls for Islamic states – is not highly compelling. While there is no doubt that at some level, a sense of the need to regain the past glories of the Islamic state exists in the present-day Muslim imagination, it is debatable whether it is as central a force behind the rise and resonance of Islamism and calls for an Islamic state as Feldman argues.
The author does discuss other related elements of the modern-day turn to Islamism, particularly the failure of autocratic regimes and existence of social and political injustice within many Muslim countries; however, he contends that the populations Islamists target seek [*1019] to achieve justice through law. The case for this assertion is not fully made. Aspirations for political and social justice are often divorced from the law in the Muslim Middle East, perhaps due to the culture bred by years of the absence of rule of law. While many in the Muslim world are looking to curb executive abuses and authoritarianism, aspirations for “the rule of law” often fall behind more general aspirations for social justice or a less morally corrupt, economically just political alternative.
Moreover, despite references to colonialisms of the 18th, 19th and 20th centuries, virtually missing from Feldman’s discussion of the rise of Islamism and accompanying calls for justice is of role of international dynamics and the convergence of Islamist and anti-imperialist discourses today. The contemporary Islamist project whether it is one in which scholars play a significant role or not, is inextricably linked to political and cultural resistance to what are understood as modern day imperialisms. This is especially true in the cases of Iraq and Afghanistan which receive surprisingly limited coverage in the work. In his brief references to the two cases, Feldman implies that with their new constitutions providing for judicial review of legislation to determine whether it violates the Shari’a, Iraq and Afghanistan serve as limited examples of Islamic constitutional orders. Yet the imperial backdrop to the constitution-drafting processes is largely overlooked. Local rulers’ need to refute internal challengers’ (including Islamists’) assertions of being imperial subjects and assert their independence of action and identity will undoubtedly add another layer to the character of the two constitutions.
Despite some of these shortcomings, THE FALL AND RISE OF THE ISLAMIC STATE does provide an accessible and engaging account of the institutional struggles and changes which befall Islamic constitutionalism from the Ottoman era to the present. The brief case studies presented (of Iran, Saudi Arabia and Somalia with its break down of the state) are fascinating in light of the book’s broader focus. Finally, Feldman takes every opportunity to present a dynamic, complex and contexualized picture of Islamic law and those who champion it. This is apparent in his brief discussion of the internal and international risks and liabilities for Islamists of placing Islamic law so centrally within their platforms, as well as several references to the universal attributes and challenges of Islamic constitutional formulations, including parallels with American constitution dilemmas or the way the English common law deals with questions of its origins. Consequently, the book intended for both academic and non-academic audiences makes a valuable contribution to the existing literature on Islamic law and constitutionalism.
© Copyright 2008 by the author, Shadi Mokhtari.
The Fall and Rise of the Islamic State (Council on Foreign Relations)