Wednesday, 16 March 2016 00:00

The Impossible Islamic State? (1)

Translating Ghannouchi’s book (“The Public Freedoms in the Islamic State”), as I stated before, has forced me to delve into political theory. Keep in mind that if you want to get a handle on the contemporary islamist movement in all its variety, you will have to think about issues related to the modern nation-state and democracy.

My title here comes from the most prolific contemporary author on Islamic law (at least in English), Wael Hallaq’s 2014 book, The Impossible State (see picture above).

Hallaq argues that the islamist call for the application of Islamic law within the context of a modern state is an impossible task. Of course, various elements of traditional Islamic fiqh (Islamic jurisprudence as laid out in the five main Islamic legal schools, which has accumulated over the centuries), especially in family law, can be incorporated within the legal codes of a state. But this is to betray the central impulse and moral intuition of the classical (he writes “normative”) Islamic state – that is, a state in which the political authorities provide only the most basic legal framework, while allowing the bulk of laws to be drawn up by the Islamic jurists, who are the primary guardians of the people (the umma, as defined religiously).

Lama Abu-Odeh in her review of Hallaq’s book, summarizes his thesis this way:


“The world of Islam is moral by excellence that rejects the separation between fact and norm, for whom the ‘political’ is confined to executive rulers of rotating dynasties that remain external to the embryonic tight embrace between jurists and community, whose role is to tax, organize armies, and regulate on the margins. In this universe, the ‘the care of the self’ by the individual Muslim to fashion oneself as moral according to the dictates of the Sharia is the organizing principle of life, which is in contradistinction to the pitiable plight of the modern Western citizen whose subjectivity is fashioned by the state for its own selfish utilitarian ends.”


There is a lot packed into that quote and I have no space to go into all the details, but only to say that a more recent review of Hallaq’s book by Yale political scientist Andrew March agrees with Abu-Odeh’s assessment. They both praise Hallaq’s erudition but deplore his ideological agenda, which leads him to ignore the historical-critical tools he uses with such vigor and devastating effect on the modern state when in turn he writes about the “normative” Islamic state.

Let me continue with some of the specifics of March’s objections to Hallaq’s blanket statements that the political never intruded on the privileged relationship between the ulama (Islamic scholars and jurists) and the people. This will then lead into how I see Ghannouchi’s conundrum on the “Islamic movement’s” objective to set up Islamic states (and even a caliphate, ideally). That topic will get fuller treatment in the second installment of this blog.


March’s critique of Hallaq

First, argues March, Hallaq seems to ignore the historical tug-of-war between ulama and rulers of Islamic states. This is a topic I have mentioned in several past blogs, and at greater length in the one entitled, "Islam Today: Who Calls the Shots?"

On the one hand, March recognizes Hallaq’s contribution to our understanding of the islamist project. In his words, “To be sure, Hallaq focuses attention on a real problem. No one will think about terms like ‘an Islamic state’ or ‘applying the shariʿa’ un-self-consciously after reading this book.” Yet if he had contented himself with pointing out the problematic relation between the mechanisms of the modern state and the islamist impulse to use them as a tool to apply Islamic law to modern society, this book would have been a wonderful addition to the existing literature.

On the other hand, says March, “the polemical rationale of the book overwhelms its scholarly aims.” This is because his main argument is stated much too strongly and remains vulnerable to quite a few counterexamples. Here is the argument in its two main clauses. Hallaq contends that:


(1) positive law, acquiring its authoritative force from the will of the sovereign state, is radically incompatible with Islamic law and …

(2) that the disciplinary and regulatory technologies of the modern state are un-Islamic, things never done in the Muslim past and things Muslim authorities may not do.


For Hallaq, the ruler was not sovereign. Only God was, as He was the only rightful Lawgiver. There is some truth to this, at least in theory. In practice, however, there was a whole area of the law called “political Shari’a,” or “Shari’a politics” (siyasa shar’iyya), which was distinct from the fiqh of the Islamic jurists, the ulama. In fact, “there are many areas of public, social and economic life for which no specific Islamic religious rules exist, but where Muslim authorities are permitted to act within broad moral constraints as long as their actions are justifiable as advancing communal welfare (maslaha).” The Ottoman Empire, already in the seventeenth century, enacted specific legal codes within these areas and declared that their legitimacy flowed out of the sultan’s will.

Islamic governance, then, was in practice a lot more than just “to tax, organize armies, and regulate on the margins,” while the ulama fleshed out all the “paradigmatic” norms within the religious law that regulated the people’s daily lives. March adds, “As ideal-theory this may be true, but legal historians have shown in great detail that under such regimes as the Mamluks and the Ottomans it was the religious jurists accommodating the rulers’ desires and prerogatives and not the other way around.”

Second, Hallaq’s contention that “that the disciplinary and regulatory technologies of the modern state are un-Islamic” flies in the face of what a good number of contemporary “Islamic scholars, intellectuals and pious believers” actually believe. For them, believers have a God-given and timeless obligation to apply the norms and objectives of divine law within the sociopolitical sphere in any possible way. This means interacting creatively and faithfully within the new circumstances of modernity and postmodernity, however one defines them.

Hallaq’s agenda, according to March, is to show that pre-modern Islamic societies were harmonious and just, and that by contrast under conditions of modernity the state rules with an amoral iron fist, systematically barring any input from religion, and from Islamic law in particular. What is more, he offers no solution. So what is to gain from such an absolutist, black and white declaration? Why not recognize, along with Rached Ghannouchi and many islamists who have struggled with these issues, not just theoretically, but also in the trenches of real-life politics that …


“…in modernity Islamic law just is this messy amalgam of what is found in the classical texts and what is pronounced by public shariʿa counsels, legislatures, shariʿa-compatibility courts, civil courts and independent religious authorities?”


In essence, this is Ghannouchi's thesis. Applying the ethical (relative to individuals) and moral (relative to creating a just society) imperatives of Islam to the changing circumstances of every nation – politically, economically, culturally, and socially – will require a patchwork of creative solutions, which always remain tentative, susceptible to modification and improvement. And the source of the authority to carry this out, he strongly maintains, is the people’s delegated authority from God – their trusteeship. That is why democracy is the only possible tool to fulfill this mission today.


Ghannouchi’s dilemma, as I see it

Ghannouchi’s book, mostly written within four prison walls in the 1980s, eloquently voices his ardent desire to see Islamic governance fleshed out within Muslim-majority nations in the postcolonial period. That is, after all, the basic definition of an islamist.

Establishing an Islamic polity is not in the sacred texts, he admits, but near the beginning of his mammoth Chapter 4 (over 100 pages), he offers three “proofs” for the necessity of the Islamic state: a) the historical argument (Medina and beyond); b) the consensus argument (the ulama have assumed this over the centuries); c) the social argument (people are social by nature; they need God’s guidance for establishing a God-fearing society). Here’s one quote under the last point:


“So the Islamic state is an indispensable means – as long as human beings are social by nature and Islam is a comprehensive system of life – to provide a social environment in which the greatest possible number of its people can live in spiritual and physical harmony with the nature that God gave humankind at creation, that is, Islam.”


And then this long sentence (typical in Arabic; I’ll probably have to shorten it in my translation):


“For the Islamic state is nothing but a political apparatus meant to fulfill the highest ideals of Islam in producing a people that naturally stands up for goodness and justice, confirms truth and dismisses falsehood throughout the earth, so that the worship of God and closeness to Him through obedience to His commands, the performance of good deeds and the establishment of justice become goals that people desire, and find easy and rewarding, and that the opposition to unbelief and rebellion, the violation of sacred rules, the spreading of evil and the committing of injustice become things that are loathed, difficult to do, and terrifying – at least on a social level.”


The “Islamic movements” (read “islamist groups” that arose in the wake of the Muslim Brotherhood from the 1970s on) are the logical political extension of the postcolonial struggle for complete independence, culturally and politically. What remains to be achieved by Muslim nations, he writes, is unity (he mentions a caliphate, but for him that remains a distant ideal), democratization, and the regaining of territories still under occupation, with Palestine in the forefront.

As I explain in the next two blogs of this trilogy, the actual experience of governing in post-revolutionary Tunisia has led Ghannouchi to tone down his calls for an Islamic state, almost to the point of saying that as long as the people enjoy their civil liberties and are able to thrive as a Muslim-majority nation, then that is “Islamic” enough … for now, or in absolute terms? This we will discuss further.