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The overpowering modern state – the leviathan preached by Thomas Hobbes at the dawn of the Enlightenment but rejected by liberal democrats – is being reinvented by the neo-Hobbsians of the twenty-first century. This leviathan, which ensures security at the expense of individual freedom, already controls most developing countries and seems to be creeping slowly into western democracies. The brutal September 11 attack on the United States, as well as other events, have underscored the vulnerability of American democracy to extreme restrictions on political freedom in the name of security. The passage of the Patriot Act by the US Congress in late 2001, despite the pervasive presence of provisions that undermine fundamental freedoms, displays the modern state’s propensity to acquire unbridled power.
Central to this process of power accumulation is the modern state’s ability to use law as a tool of power aggrandizement to extend its control over civil society and regulate every facet of individual and collective life. Taking that power, or limiting it markedly, is the only way to prevent the modern state from turning into a leviathan. It is also the only way to prevent the use of Islamic law (the Shari‘ah) as an instrument of persecution and control. It is an irony of history that the Shari‘ah, which historically strove to limit the state’s power, is being now used to make the state overpowering. This irony has its roots in the modern conception of state. For many Islamic reformers, an important landmark of reasserting Islamic values and identity is that Islamic law should become state law. Those who insist on marrying the state with the Shari‘ah are completely unaware of the fact that legislation in historical Islam was a function of civil society rather than of the state.
Lawrence Rosen gives us an insight into this important fact in his Anthropology of Justice: Law as Culture in Islamic Society. While his work focuses on a Shari’ah court in a small Moroccan town, it provides a wealth of information about the paradigm that guided the Islamic legal system in historical Muslim society. “[I]n the classical Islamic theory of state,” he remarks,
law and government were kept largely separate form one another. The state was seen not as an instrument for the application of law, nor were the courts, either through religious doctrine or a concept of the social good, envisioned as vehicles for economic redistribution or the construction of a particular political order. It was the duty of the political authorities to enforce the claims of God – even by maintaining their own courts for the punishment of specific crimes – but beyond that they were to insure that men could carry forth their own affairs without governmental interference.
Rosen’s work shed light on another fact concerning the relationship of law and state in historical Islam, a fact often missed by both the advocates and opponents of an Islamically inspired state: In historical Islamic society, down to the Ottoman Empire, the community was the locus of law and morality. Judges were expected to enforce local norms and follow locally accepted interpretations of normative texts, not to superimpose on the community an abstract doctrine articulated by non-local or distant individuals. “[I]n Islamic law,” he points out,
the [legal] concepts are measured against those cultural principles that allow people to return to the negotiation of their own arrangement. Its regularity is vertical, not horizontal: it seeks consistency with common-sense assumptions about humanity, not through the refinement of categories of its own creation. Islamic law is a system of adjudication, of ethics, and of logic that finds its touchstone not in the perfecting of doctrine but in the standards of everyday life, and measured in this way it is enormously developed, integrated, logical, and successful.
As a legal anthropologist, Rosen was more aware of how Islamic law functioned on the societal level than among jurists. It seems he was not aware of the enormously elaborate and abstract science of Islamic jurisprudence. This fact should, of course, make us more intrigued by historical Muslim society’s ability to control legislation and adjudication, and to keep statesmen and jurists in check. Further, this fact speaks volumes about the vibrancy of civil society in historical Islam and should inspire contemporary scholars to reconsider the relationship between state and law. More specifically, I submit that the relationship among state, law, and society in historical Islam provides us with a cue for overcoming the “iron cage” of advanced modern society.
This vital task requires forward thinking and a creative synthesis of the modern and the authentic. And therein lies the enormous challenge facing contemporary Islamic thought.
Communal Pluralism and the Making of Minorities
In a diverse and heterogeneous society, one can recognize two types of minorities: ethnic and confessional. Ethnic minorities are subgroups distinguished from the dominant group by physiognomic, linguistic, or cultural characteristics. Confessional minorities, on the other hand, are subgroups distinguished by their values and ideologies, as well as the resulting practices. The classical Muslim world was divided into a multiplicity of confessional groups. Each confessional community was allowed to maintain its own code of law and an autonomous local administration run by local notables and religious leaders. This pattern of communal pluralism was later adopted by the Ottomans and continued to be the basic social organization in the Middle East until the collapse of the Ottoman Empire in 1919.