Introduction to Part I
No intellectual theme has been more prominent in the Middle East of the twentieth century than the idea of the state. In one way or another, most ideas debated have been closely connected to the ideal form of the state, and nearly all the directions that such a debate could have taken have been probed. The gamut of political theories concerning the state was so wide that it allowed for any ideology, no matter how remote from the society where it was proposed and how thinly connected to its cultural milieu, to find an association with or to curry favour as the ideology of some Middle Eastern group.
It is true that most other countries of the world have witnessed to some extent a similarly wide range of state theories. But a characteristic of the Middle East lay in the difficulty of accepting the classical nation-state which, by the late 1950s, was established in most countries of the world. To date, the reluctance of the debate to deal with nation-states in their present form has been a major indication of the resilience of radically different projections and their claim to order societies in the Middle East according to alternative schemes.
Parallels can of course be found with other areas. South East Asia and Africa have had similar problems of state identity, and the Vietnam and Korean crises, as well as the South-African situation, have seen divisions and controversies which foreshadow and echo the Middle Eastern situation. But the ultimate goal of these crises remained the nation-state. The problem which faced (or faces) these areas was not so deep-rooted as to negate an acceptable and geographically defined state within which the crisis would develop. In those countries, the state as such was not put into question, and crises and problems were articulated on a different ground: socialism or communism versus capitalism, colonial domination v. liberation, racial and tribal control v. integration, pluralistic democracy v. dictatorship... Disagreement ran along these themes, and presupposed an accepted entity over which discord prevailed, and control was sought.
In the case of the twentieth-century Middle East, these themes were important, but there was one further and more critical dimension: the very existence of the state. Alongside those ideological grounds of the debate, many groups rejected the essential form of nation-state accepted elsewhere.
This rejection signified that beyond the political problems that were puzzling enough per se, lay a more fundamental area of contention over the state configuration itself. For these ideologies, the nation-state as such was put into question.
It can be argued that the overall picture indicates that the slow but firm establishment of the nation-state on the classical model of decolonisation has taken root even in the Middle East. But this model was regularly challenged by ideologies and demands generally linked to larger entities connecting several nation-states through an integrative Utopia.
The rejectionist Utopia itself has followed the oscillation of a pendulum between two broad forms, (Pan)Arabism and (Pan)Islamism, and can be illustrated by the three consecutive points reached by the pendulum over the century: from the late 1800s to the third decade of the twentieth century, Islamism, or rather Panislamism, was the dominant form of nation-state rejection. From the mid-1920s to the death of Jamal’Abd an-Naser in 1970, the rise of Panarabism relegated Panislamism to the background. And since the 1970s, the pendulum has returned to favour the rejection of the nation-state in its Islamic form.
With the end of the Iran-Iraq War, the tide of Islamism might have given way again to a dominance of the Panarab rejectionist call, but as with all long trends, perspective remains necessary for assessment. It is also probable that whatever the oscillations of the pendulum of rejection, the other side of the balance will win the day: no trend has been more patent in recent years than the consolidation of the nation-state, and its slow but irrevocable affirmation.
But this also still needs some time and distance, and any crisis could wreak havoc on its slow build-up. To date however, even though there have been significant instances where the Utopia came closer to reality, as in the Arab confrontation state alignments in wars against Israel in 1967 and in 1973, the nation-state has remained the bedrock, and the rejectionist alternative in all its forms has remained the Utopia. The state, in any case, is at the heart of intellectual concern, and both in the Islamic rejectionist Utopia and in the converse acceptance of a given nation-state, the shari’a has had an important word to say about the forms that the state can and should take. From the balance between nation-state and united Utopia, two corresponding poles for the reassertion of the shari’a have emerged.
The first pole is externally oriented. It is directly related to strands of the shari’a opposing the received notion of nation-state. This is the quest for Islamic Utopia. In short, this opposition can be stated as the demand for a suprastatal Islamic order which is reminiscent of the dar al-harb/ dar alislam (abode of war/abode of peace) prototype of the classical jurists’ writings. According to this model, a union of all Muslim countries in a single entity is sought, which would resemble the great Islamic empires of the historical tradition: the existing nation-states should vanish before a central Islamic supra-authority which would be responsible for taking over the fate of the Muslim community, the umma.
The second pole is internally oriented, and puts the actual mechanisms of an existing state to the test of the shari’a. In this approach, the state is a received and accepted notion. The shari’a does not then worry about whether a given nation-state is legitimate within its present boundaries. It accepts these boundaries, avoids putting them into question, and concerns itself with the form and the details of the law as it emanates or should emanate from state authority. In short, it deals with the Islamic state without questioning the relevance of its boundaries.
In our study of the shari’a’s constitutional impact, the Utopian rejectionist aspect of the debate over the state is deliberately ignored.
Although it is of great interest to review the present discussions among Islamic groups concerning the necessity for Muslims to unite into an integrated supra-statal entity, and to examine how these groups base their Utopia in the law, such an exercise appears more in the nature of’ international relations’ than in a properly legal endeavour. Many valuable studies have been devoted to the early and late forms of Panislamism throughout the century,
but it might well be that the shari’a is incapable of articulating a discrete theory of international law which is properly Islamic.
Shaybani’s as-Siyar al-Kabir
is generally mentioned as one of the earliest forms of Islamic’international public law’ and used as a measuring rod for the analysis of modern Islamic Utopias, but the suggestion of exercising qiyas (analogy) over this type of legal literature remains of limited value for the modern world of nation-states. A comparison with the early jurists’ international law literature works as a cultural, rather than as a legal, referent. Furthermore, such comparisons are not essentially different from the Panarab suprastatal discourse in its repeated references to the episodes of the glorious past of the unity against the Crusaders. Both comparative uses betray a historical-cultural terminology, rather than any legally articulated discourse. Because of the cultural emphasis in this approach, even for the states which use the Utopia of Panislam as a guiding directive (one thinks mostly of Iran in recent times, but there are other’ solidarity’ exercises based on Islam, which are at work in Pakistan, Saudi Arabia, Libya, and Iraq), the sharfa functions as ideology and not as law.
It is therefore mostly with the second pole, the internal one, that the analysis is concerned in the following constitutional chapter. The starting point takes as an accepted axiom the existence of a given nation-state, including the normal attributes of sovereignty, given boundaries, and international recognition. With no quarrel over the normal twentieth-century attributes of this state, and no emphasis on its subsumption under an international Islamic order, the only question left for the law is an internal one, which is essentially related to the state as supreme rule-maker and coercer. The skari’a then purports to construct a cogent definition of this dimension of the Islamic state.
This is the point where the legal halo in Islam appears decisive. All Islamic groups depart from a single shared definition of the Islamic state:’The Islamic state is a state ruled by Islamic law.’ The definition of the’rule by Islamic law’ in that Islamic state is therefore the matrix of state theory in Islam. This matrix can be broadly described as being constituted by two key elements, which respond to the question of (1) what Islamic law is and (2) who decides the nature and content of Islamic law.
Thus presented, the matrix allows the analysis to reduce the issues to examining the theory and practice of who the decision-makers are in a given Islamic state, thereby answering the second point concerning who says what Islamic law is. It is much more difficult to articulate the substance of Islamic law, and consequently to answer question one on the nature of Islamic law, since the shari’a is by essence all-encompassing. The following chapters try to shed light on the thorny issues connected with the question of’who decides what Islamic law is’. Part II will develop some of the Renaissance’s answers to the substance of Islamic law in economic and financial matters.
In our presentation of recent constitutional developments, the analysis does not proceed in historical or chronological order. Rather, a reverse decoding is attempted, which selects manifestations which appear at variance with the normal use of Islamic legal terminology, then elaborates on their significance in comparative and historical perspective. Three selections are made for their constitutional significance in the shari’a.
The first selection consists of a number of texts written over the past three decades by a contemporary Shi’i lalim, Muhammad Bahr al-’Ulum. The peculiarity of these texts appears in the variations of Bahr al-’Ulum’s approach to the same legal controversy. This controversy has developed as the most significant split between Shi’i schools, and culminated in the eighteenth century. The two schools are the Usuli school, which came victorious in the debate, and the Akhbari school, which is said to have dominated the sixteenth to eighteenth century until its foundering under the critique of the Shi’i jurist al-Wahid al-Behbehani (d.1205/1791).
It is hard to find original texts which are self-labelled Usuli or Akhbari.
What is generally acknowledged is that a serious rift has taken place in Shi’i law, and that, but for minor pockets of Akhbarism, Usulism is the sole school extant.
In recent years, however, and there is no better example of this than the writings of Muhammad Bahr al-’Ulum, emphasis has shifted from a simple acknowledgment of the rift between Akhbaris and Usulis, to a noted rapprochement which obliterates the traditionally recognised differences.
The value of such an analysis goes beyond the mere description of the two schools’ tenets, and sheds light on the larger picture of contemporary Shi’i law, especially from the point of view of whom is entitled to say what the law is. The arguments of the controversy clarify the Shi’i legal structure in its present dominant Usuli form.
Next to the insistence on the closeness of Akhbarism and Usulism despite the deep historical disputes, the second manifestation of an odd use of the language encountered in modern Shi’i texts derives from the way some episodes of the life of Muhammad Baqer as-Sadr have been reported. An intriguing remark of one of Sadr’s biographers is the occasion for the study of the hierarchy of knowledge in the Shi’i jurisprudential apparatus and the training and curriculum of the Shi’i’ulama.
A third odd use in the discourse of contemporary Shi’i jurists, which is drawn from an exchange of letters in 1979-80 between Muhammad Baqer as-Sadr and Ruhullah al-Khumaini and from variations on honorific titles which are conspicuous in this correspondence, sets the stage for the final element in the structure of decision-making in legal interpretation. This correspondence is the occasion of an investigation into the ways an acknowledged jurist can reach the highest point of the hierarchy, which is the position of’ Leadership’ so central to the Islamic state defined as a state of (Islamic) law. The study can then proceed to a further stage, which involves the making of the modern Iranian constitution.
It is generally acknowledged that one very important text that foreshadowed the Iranian system of government is Ayat Allah Ruhullah al-Khumaini’s Velayat-e Faqih, which was originally delivered as a series of lectures in Najaf in 1970. There is little doubt that the Iranian system has adopted some of Khumaini’s conclusions in this text. But a more significant contribution immediately preceded the Iranian revolution and, unlike Khumaini’s opus, corresponded to some of the most detailed propositions one finds in the Iranian Constitution.
This work of Muhammad Baqer as-Sadr has recently received more recognition in the West as a significant contribution to Islamic constitutionalism.
Before this stage, however, the process by which Sadr himself reached this final blueprint must be examined, against the background of other prominent Islamic scholars of the century, with regard to two major concerns expressed in the field: how he based his constitutional scheme in the Qur’an (stage 1), and how his view of the more abstract State theory developed from his earliest texts through to 1979 (stage 2).
Whatever the similarities with Sadr’s texts, or with Khumaini’s lectures on Islamic Government, the accession to power of Khumaini’s (and Sadr’s) disciples in Tehran infused new life into the law. The Constitution in Iran, like any legal text, started an existence of its own, and responded to a logic that was different in its essence from the pure realm of theoretical jurisprudence.
In 1988, many contradictions which were already apparent in some of the earlier texts, as well as in the structure of the Shi’i legal hierarchy, were given expression in Iran in a series of important developments prompted by the highest circles of the system, including the Leader himself, Khumaini. The same year saw, in the aftermath of these exchanges, a radical departure from the Iranian text of 1979, with the emergence of a new constitutional body, and the relative demise of the powerful Council of Guardians. In the summer of 1989, the death of Khumaini and the adoption of a major revision of the Constitution in Iran marked a new phase in Iran.
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Author: CHIBLI MALLAT
