By Noah Feldman, Princeton University Press, Princeton, N.Y. 189 pages, $22.95
‘When empires [or government systems] fall, they tend to stay dead.” Two notable exceptions to this rule are democracy and the Islamic state. What started in a Greek city-state was “reinterpreted and embraced” in enlightened Europe and the United States of America. With the demise of the Ottoman Empire and what appeared to be the end of the Islamic state came a period in the Middle East of autocrats, only to be followed with a call for a reinterpretation and reemergence of an Islamic state, or states, based on Islamic law.
What gave rise to this period of autocrats? Is it that Muslim political culture lent itself to autocrats, or was there a fundamental change in the governmental balance of power that previously pervaded the Islamic empire?
Noah Feldman, seeking to formulate a new interpretation of Islamic constitutional history in his book “The Fall and Rise of the Islamic State,” proffers a fascinating theory that Islamic scholars provided for a “rule of law” in the Islamic empire, and with the decline of the status of Islamic scholars (“keepers of the law”), resulting from an attempt to codify Islamic law during the late Ottoman period, there emerged an unchecked executive.
Shari’a, or Islamic law, is not a codified system of rules and codes, but is more closely aligned with the common law. The need to interpret this ever-evolving, although divinely based, model was the task of the independent scholarly class of the Islamic empire. These “guardians of the law,” although sometimes employed in the service of the state where they served in the “name of the law,” left behind a legacy of ideas. These ideas, which Feldman discusses in detail, are alive, and as the visions of America’s founding fathers’ “still shape our constitutional tradition” and debate, so too will these ideas provide guidance for the future of the Islamic state.
The call for “the return to Shari’a is complex,” Feldman writes, and an Islamic state is a “Shari’a state.” The traditional Islamic constitution, which Feldman describes as the basis of the classical Islamic state, was “unwritten and ever-evolving” and produced a “legal” state in that the system it espoused was both “justified by law and  administered through law.” The ulema, or scholarly class, were “not only theologians and other intellectuals [but also] judges who decided concrete cases and independent jurists who gave opinions as to the meaning of the law.” The balance of power where even the caliph subordinated himself to God’s law, which the ulema maintained as paramount, sustained a legal state which succeeded amazingly for quite a long duration.
As all forms of government must eventually collapse, so too was the classical Islamic state destined to fail. Feldman suggests that the failure came about by “the incomplete manner in which the Ottoman reforms [ - formulated to prevent 'second-class status' to the empire in the face of rising Western states and state building - ] were adopted.” A major feature of these reforms was “the removal of effective lawmaking authority from the scholars through the substitution of written legal codes for the common law of the shari’a.”
The new constitution and legislature set up by the Ottoman reformers was “effectively retracted and abolished” by a sultan, and with the scholarly class no longer in control of the law, no check on the authority of the sultan existed. Subsequently, after the relegation of scholars “to the role of minor religious functionaries” in the post-Ottoman Middle East, the shari’a and its guardians never regained “their lost status as the legitimating source of constitutional authority.” The modern states that followed failed “to establish themselves as legal states in the twin sense of being justified by law and governing through it.”
These failed states gave rise to the “renaissance of Islam not only as a faith but as a powerful political force in the last quarter century.” With the call and demand for justice, which the shari’a represents as the divine law, there is a desire for a “renewed commitment to the idea that law creates the ruler, not the other way around.”
While not neglecting the role of scholars in the governing of Saudi Arabia and Iran, Feldman examines governments that are seeking to classify themselves as new Islamic states, such as Iraq and Afghanistan, based on the “structures of liberal constitutional democracy with an “infus[ion] [of] Islamic principles.”
These states are not seeking to reestablish the institutional authority of the classical Islamic empire, but are rather seeking, as Feldman describes it, to democratize or constitutionalize the Shari’a, by either making the legislature into “an institution that would engage with the ideal of law, not just the application of power,” or vesting the judiciary with “the responsibility to Islamic law.” Unlike the scholars of old, the judiciary “has this responsibility because of the constitution, not because it inheres in the shari’a itself.”
This new tension, the conflict between divine and human law, was not so prevalent in the classical Islamic state, as, although there existed ruler-made binding regulations, and tribal and customary law, its “formal structure of constitutional theory was that the shari’a authorized these other types of law, and that these laws could under no circumstances contradict the shari’a as they interpreted it.”
These new Islamic states must deal with the question of whether the written constitution is “legitimate to the extent that it makes the shari’a paramount” or whether the written constitution, which creates the legislature and the courts, defines the meaning of shari’a – in other words, “does the shari’a come before the state or the state before the shari’a?” Feldman asks if this sounds like a familiar problem – whether “the inalienable rights of life, liberty, and property preexist the U.S. Constitution or derive from it.” Feldman asserts that maybe these parallel dilemmas do not need to be resolved in order to run a legal state.
Who will be charged with “specifying the meaning of shari’a and by what authority[?]” Will it be the “ public through the legislature,” the “judges of the high courts,” a reemergence of the prolific scholars as “heirs of the prophets,” or a combination of the above? This is a fascinating book for the counselor and statesperson, and is a sequel to a former book dealing with Islam and democracy.
Imtiaz Jafar, is pursuing an M.L.S. at St. John’s University and an M.A. at Hartford Seminary in Hartford, Conn.