The Fall and Rise of the Islamic State by Noah Feldman

Noah Feldman, a law professor at Harvard University begins this work by pointing out that when “government systems fall, they tend to stay dead.” Few people are worried about a comeback of monarchy or communism. Yet there are exceptions. Feldman mentions that the concept of “democracy” was resurrected after two thousand years of laying dormant and that the Islamic State, which existed in some form from the time of the Hijrah of the Prophet (saw) in 622 CE until the First World War, is, a hundred years later, everywhere gaining popularity amongst Muslims as the hope of the future.

Feldman is an excellent writer and is very skillful in distilling complicated historical and legal concepts in ways which are intelligible to the average educated reader while still remaining substantive. Feldman begins the book by trying to describe what the Islamic State was, that is, to take a brief look at Islamic constitutional theory as it developed over those 13 centuries. Feldman is writing primarily for a western audience and he realizes that most of his audience will come to the topic thinking of Shari’ah as almost the quintessential example of a legal system which is backward, barbaric and tyrannical. This modern western perception comes from the triumph of secularism in the west and from a domination in the western mind of a few corporal punishments in Islamic criminal law and some gender related issues as being the only thing the average westerner thinks of when he or she thinks of Islamic Law, or the Shari’ah. This is of course, not accidental but the result, in addition to general ignorance, of the purposeful distortion and propaganda against Islam and the Shari’ah that is not only a recent phenomenon but which has been part of the long rivalry between first Islam and Christendom, and later Islam and “the West.”

In attempting to expand the readers’ understanding of both the Shari’ah and Islamic Constitutional theory generally, Feldman focuses on the relationship between the independent class of Muslim scholars which arose out of the Muslim community and the rulers who came to hold power over Muslim polities. Those Muslim scholars insisted that the the legitmate source of law was the revelation, the Qur’an and the Sunnah of the Prophet (saw); and it was the Islamic scholars who were qualified to interpret this law and apply it to specific cases. In order for rulers to be legitimate, they had to apply this law over their subjects, in fact they had to apply it to themselves. If they did this, the scholars taught that it was incumbent upon Muslims to obey them even if they were sinful or corrupt. If they did not, then they had no legitimacy and even rebellion against them could be justified or even required. Thus the scholars established themselves as a check on the authority of Muslim executives and a force that would have to be considered and dealt with in the “constitutional” set up.

Feldman then goes on to address both his explanation of the fall of the Islamic State and for its subsequent rise (at least in the hearts and consciousness of Muslims). Most importantly, although perhaps not most originally, Feldman points out that the major reason for the recent “Rise” in popularity of the notion of the “Islamic State” is the incredible absence of justice found in the regimes of Muslim states. In fact, Feldman interestingly argues that at least part of the reason that so many autocracies have developed in the Muslim world can be traced to the decline of the Islamic State, in particular to the decline in influence of the Muslim scholarly class and the Shari’ah which it interpreted. In the historical memory of the Muslims this was a force which could be used to check rulers and which, in any event, was always understood as a theoretical or philosophical check on the rulers, who were always understood classically to be subject to the Shari’ah. In fact, the legitimacy of traditional Muslim rulers came from their enforcement of the Shari’ah. When the new post colonial executive powers in the Muslim world were not held to this standard, there was no effective check on their power that took its place. Thus, it should not be too surprising that one of the major forms in which the call to check the power of some of these tyrannies comes in the form of the call for the return of Shari’ah, for the return of the Islamic State.

Feldman’s explanation for why autocracy became so prevalent in the Muslim world is thought provoking. While Feldman does not deny that the effects of colonialism also must be considered in thinking about the development of autocracy in the Muslim world, he does explicitly argue that the process described above, of the loss of power and influence for the Muslim scholarly class and the Shari’ah was largely the result of a process which started even before colonialism and which was, although undoubtedly spurred on by “Western” interaction, competition, and influence, largely directed from internal forces within Muslim society.

The most prominent example of this process discussed by Feldman in the book is that of the Ottoman Empire. The Ottomans, in response to military defeats in the early 19th century and the growing awareness of ‘falling behind’ the western European powers. Ottoman officials, some of whom had been educated in the West, attributed some of this decline to the fact that the Ottomans, once the finest bureaucracy in the world, now lagged behind the European powers in terms of the efficiency of their administration. They were also heavily in debt to these same European powers who were able to make explicit demands upon the Ottomans for reforms. These factors produced, between 1839-1876 a series of reforms known as the Tanzimat.

The Tanzimat reforms most famously involved the reduction of the Shari’ah to a civil law code, called the Mecelle (Ar. majalla). This codification was, as Feldman describes it, the ‘death knell’ for the Islamic scholars as “keepers of the law.” Although the Code was “Islamic” and the Islamic scholars participated in drafting it, the effects of its implementation were to remove the necessity of having qualified Islamic scholars determining what the Shari’ah said. Now, a government functionary could simply apply the code to the case before him. Although originally the scholars would argue that the code was simply affirming the Shari’ah rulings that the ruler was obliged to implement regardless, it would soon become easy to see the code and the rulings contained therein as deriving their authority from the sultan. The fact that the Sultan would then promulgate a constitution, and for a time even a legislature only contributed to this perception. For all of these actions were taken based on the Sultan’s authority.

Sultan Abdul Hamid II is often looked upon by religious Muslims as someone who made a last ditch attempt to return to some type of Islamic rule. Feldman argues that in first promulgating and then suspending both a new constitution and legislature in fact, Abdul Hamid II solidified the role of the Sultan as absolute ruler, neither allowing the scholars to return to power and influence (he kept the codes in place) and also preventing any rise of a legislature as a check on his authority. Feldman admits that Abdul Hamid II reasserted the Islamic nature of the State verbally and seemed to have the backing of the scholars, but Feldman argues that this just shows how weak the scholars had become, while once they were a counterweight to executive authority, they would now rush to give legitimacy to a ruler who paid them even symbolic attention despite the fact he gave them no real authority.

Feldman ends the book by looking at the contemporary Islamist (Feldman says broadly that he uses this term to basically mean the Muslim Brotherhood and its affiliates and other like minded groups and individuals) movements and the what exactly they have in mind when they advocate for the Islamic State. Just as the democracy that returned after two thousand years was different from what had existed in Greece, the Islamic State that returns in the 21st century CE will not be exactly the same as what existed before. Along these lines, Feldman discusses two important ideas which underline many moderate Islamist projects of today. The “democratization of Shari’ah” and the “Constitutionalization of Shari’ah”. Feldman emphasizes that contemporary Islamist movements, although often associated with some prominent Islamic scholars who “advise” them, are in general neither led by Islamic scholars nor are they calling for the return of a scholarly class to a role of great influence. (This is contrary to what has happened with the Shi’a scholarly class in Iran, a phenomenon which Feldman addresses in his book, but which I won’t get into in this brief review.) Contemporary Islamism, while showing respect for Islamic scholars, is an egalitarian worldview largely run by educated and serious Muslims who believe that they can understand and implement basic Islamic values themselves. One other possible reason for the complicated relationship between Islamists and Islamic scholars in general which Feldman doesn’t explicitly discuss but which I think is also important is the extent to which over the last century tyrannical non-Islamic governments have been able to co-opt Islamic scholars in general to legitimate them and serve their interests (or at least this is a widely held perception). The contemporary Islamist movements have also bought into democracy, at least in the sense of having people choose their leaders. It is debated whether this is a shift in thinking or simply a pragmatic short term move by the Islamists. (Feldman has another book on Islam and democracy where he addresses those issues.) In any event this leads to the notion of the democratization of Shari’ah where legislation will be the task of a popularly elected legislature, but this legislature will be expected to legislate in accordance with Shari’ah. So, the task in the first instance of determining what the Shari’ah is will lie with the legislators who will be answerable to the people generally.

What if the people’s representatives enact legislation that is not in accord with the Shari’ah? This is where the idea of “constitutionalization of Shari’ah” comes in. One possible contemporary Islamist solution is to write into the constitution a statement such as “The Shari’ah shall be a source of Law,” or “The Shari’ah shall be the only source of Law,” or “No law shall be enacted which is contrary to the Shari’ah.” Such strategies have been attempted in self-proclaimed Islamic Republics like Pakistan and somewhat ironically, in constitutions drafted under United States occupation and domination in Afghanistan and Iraq. A mechanism to challenge laws as being contrary to Shari’ah would then most likely involve some sort of judicial review.

Of course, constitutions can contain all sort of flowery, and often contradictory language on paper. For example the current Iraqi constitution states the following:

“Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.
Article (2):
1st — Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

For such guarantees to have any meaning, as Feldman points out, requires institutions in the society which can have real influence and the actual meaning of such vague guarantees is worked out in the actual contestation that occurs between such institutions. This is true of any governmental arrangement, whether Islamic or otherwise and any new Islamic State would certainly have to go through much trial and error. Unfortunately, recent attempts at Islamic States have either come out of war and conflict. (Feldman also has an interesting discussion in the book about Kingdom of Saudi Arabia. KSA of course considers itself to be an Islamic State. Islamic scholars have long resisted the drafting of a written constitution and the scholars as a group have traditionally posed a real substantive check upon the ruling family. Of course, few if any would hold up KSA as an example of governance for other societies to emulate. While Saudi Arabia is in some ways the contemporary example that best approximates the classical Islamic political order, it is an example of how that model is not equipped to handle certain contemporary realities. Specifically, Feldman mentions that the situtation in the Kingdom is distorted by massive oil revenues that allow the Executive to be quite powerful without having to seek tax revenues from the population as well as the “distinctive values held by the Saudi scholars.”) In situations where Islamists have been seen to be making real progress through a gradual, electoral process, such efforts have been crushed militarily with western support. So the Islamist ideas have not really had a chance to be implemented in practice so that they could grow and develop and become more specific and so that they could be seen to either have succeeded or failed. As long as this is the case, Muslims who long for political, social, and economic justice lacking from their lands will continue to see Islam as the solution.

Election posters in background read “Islam is the Solution” in Arabic.

You can hear an interview with Noah Feldman about this book here.

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10 Responses to “The Fall and Rise of the Islamic State by Noah Feldman”

  1. Mohsin Says:

    Assalaam Alaikum,

    Nice review. I’ve been intending to read this book for some time. Actually, this coming Friday, there is an event at one of the masajid I go to related to this book: http://icsgv.com/resources/bookreviewflyer3.gif

    Does he also discuss how contemporary Ulema view the rise of the “Islamic State”?

    Mohsin

  2. abunooralirlandee Says:

    Wa ‘alaykum as-salaam,

    Jazzak Allaahu Khayr for commenting.

    That sounds like an event I would love to attend. I actually read most of the Weiss book “The Spirit of Islamic Law” while I was at ILM SUMMIT, and I was planning to review that as well.

    Feldman does not really discuss in detail how contemporary ulama view the “rise of the Islamic State,” although as I allude to in my post he does talk some about the somewhat curious relationship between the Islamists and the ulama and he also has a good analysis which I meant to include in my review but didn’t about the complicated relationship between Islamists and the Shari’ah generally. Since Islamists are at least to some extent politicians they have to take into account that the Shari’ah as a selling point to Muslim populations actually has both positives and negatives and must be approached somewhat carefully.

    Man, I hate politicians. Ok…Ok…some politicians might be okay but that is only because they have non-poltician like features that make up for their politician features. But as anyone can tell I love politics…in no way do I call for an Islam that is “not political.”

    How can one be involved in politics and not be a politician…easy…be a revolutionary. Revolutionaries are cool (at least some times, of course there are revolutionaries that end up screwing up…that’s cause they’re people….and no doubt out of most of us who would like to think of ourselves as revolutionaries…very few of us actually are…the ideal examples of revolutionaries without doubt are the Prophets (Peace be upon them all) Anyways, what does this have to do with anything…I’m not sure.

    It’s related somehow in my mind…let me ask this (sounds like a question for Omer Mozaffar if he happens by, but I’d like to hear anyone’s thoughts) is there something inherent in being an ‘aalim that makes it unlikely one will be a revolutionary? Or is that conception in my mind the result of current or historical world political circumstances. Or is that conception just the product of my own ignorance…or are ulama not revolutionaries because being a revolutionary, contrary to what I said above, is actually not usually a worthwhile project?

    Allaah knows best.

  3. abunooralirlandee Says:

    Please, please I ask anyone reading to comment or ask questions, especially when I write about books. In my initial posts/reviews, while I may share some opinions of my own or allude to other books or information that I have, for the most part I’m taking it as my job to share some of the main arguments and analysis of the books I’m discussing for others who may not be able to read the book or who want to decide if they should read the book.

    I am counting on questions and comments from others to be able to develop and express my own thoughts on these subjects inshAllaah.

  4. Mohsin Says:

    Hmm… that is an interesting question you bring up about revolutionaries and Alim. I’ll have to give it some thought.

    One relatively recent Alim that comes to mind… although this is a very *controversial* example, is Sh. Taqi al-Din Nabhani, the founder of Hizb al-Tahrir. I guess its debatable whether he was a revolutionary, but he did study Al-Azhar, and thus in that sense was an Alim. And his writings sure seem revolutionary.

    Oh, another example just came to mind: Sh. Uthman Dan Fodio. He is recognized as a scholar and a revolutionary. He is a very interesting example, because he was also a Sufi. The reason I bring up that point is because today Sufis are thought of as pacifists, but Sh. Dan Fodio was very active (from my limited knowledge about him).

    I wonder what kind of relationship the Deobandi institutions and Ulemaa had with the anti-colonial movements of the Indian subcontinent.

    It might very well be that there are a number of Ulema who are quite revolutionary in their thought, but are locked up in prisons in the Muslim world. And perhaps being a revolutionary is perhaps easier said than done.

    Mohsin

  5. MacGregor Eddy Says:

    Has The Rise and Fall of the Islamic State been published in Arabic?

  6. abunooralirlandee Says:

    I’m not aware that an Arabic translation is out but Mr. Feldman is quoted here as saying he is “especially eager to see the book translated into Arabic.”

    http://www.law.harvard.edu/news/spotlight/ils/in-new-book,-feldman-looks-behind-the-calls-for-sh.html

  7. George Carty Says:

    Isn’t violent revolution usually a bad idea unless there is absolutely no other alternative, because it is a form of regime change that strongly favours mad gamblers and the super-ruthless?

  8. abunooralirlandee Says:

    George Carty,

    Thanks for visiting and commenting.

    I don’t usually like to make sweeping generalizations. Ok, strike that, there’s actually little that I like more than to make sweeping generalizations because I think they can make people (including myself) think but this is only true if one only makes them after carefully thinking about whether they are really true or not and takes them seriously.

    I definitely have no problem agreeing with you that violent revolution or violence of any kind really is “usually” a bad idea if there are other nonviolent alternatives.

    And just to clarify when I said “revolutionaries are cool” in my above comment and advocated being a “revolutionary” I did not at all mean to imply or assume that a revolutionary has to be or should always be violent.

    To refer to the discussion in another thread, the most important changes come neither through elections nor through violence, but through faith and righteous actions and patient perseverance.

  9. Recent Links Tagged With "islamic" - JabberTags Says:

    […] IS THE REAL THREAT ISLAMIC RADICALISM OR ISLAMIC LIBERALISM? Saved by cnansen on Wed 17-12-2008 The Fall and Rise of the Islamic State by Noah Feldman Saved by videogal09 on Fri 12-12-2008 Catholic newspapers embattled in Malaysia Saved by Tigralon […]

  10. Averroes Says:

    Assalam Allaikum,

    A summary of all politics: Who wants what and why? A class a politician you would become if you could apply such logic to political “facts”! Good luck reasoning!

    Secularism was our old ally and inshallah will be our new phoenix.

    Salam

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