Feldman, Noah, 2008, The Fall and Rise of the Islamic State



In the space of 151 reasonably short and very readable pages this book by a Harvard Professor of Law provides some extremely helpful clues to the upheavals that we have been witnessing in the Muslim world in recent years. The blurb on the back cover summarises the basic argument:

“In this incisive book, Noah Feldman tells the story behind the increasingly popular call for the establishment of shari‘a – the law of the traditional Islamic state – in the modern Muslim world. Many in the West consider it a threat to democracy. Islamist movements are winning elections on it. Terrorists use it to justify their crimes. But what exactly is shari‘a, and can it restore justice to the Islamic world”?

“To answer to these questions, Feldman goes back to the roots of classical Islamic law, under which executive power was balanced by the scholars who interpreted and administered shari‘a. That balance was destroyed under Ottoman rule, resulting in the unchecked executive dominance that continues to distort politics in so many Muslim states. Feldman argues that a modern Islamic state could provide political and legal justice to today’s Muslims through shari‘a – but only if new institutions emerge that restore this constitutional balance of power”.


By Rev Colin Chapman

Date of Review: January, 2013

This book was published three years before the Arab Spring started in December 2010, and it would be interesting to know how Feldman would interpret the developments since then in Tunisia, Libya, Algeria, Egypt, Turkey, Iraq and Iran in particular. But the special value of this book for me is that it provides a relatively simple but convincing analysis of how Islamism has developed out of traditional Islamic political theory and practice but also represents a radically new departure.

It may be many years before we can tell whether the different Islamist experiments have been successful or not. Will they be able to put bread on the table and satisfy people’s aspirations for a genuinely just society? Or will there be further revolutions against Islamist governments? And will Islamism then be added to the list of other ‘-isms’ in the Muslim world – pan-Arabism, nationalism, socialism, and Ba‘athism – that have proved to be ‘gods that failed’?

These are the main stages in the argument – with some of the crucial sections in Feldman’s own words:

1. In a chapter entitled ‘What Went Right?’ he argues that the reason why the classical Islamic constitution worked well for so many centuries is that through scholars interpreting shari‘a and being responsible to the ruler, there was a genuine balance of powers. The caliph could never be above the law and because his power was checked by the scholars, the ‘ulama, he could never become an absolute dictator.

‘Judicial authority came from the caliph, but the law to be applied came from the scholars. This subtle arrangement is of the utmost importance for understanding the balance of power between the scholars and the caliph’ (p 28).

2. The crucial step which led to the unravelling of the traditional Islamic state took place in the attempts to reverse the decline of the Ottoman Empire through a process of reform and modernization which included the codification of law and the writing of a constitution.

‘The single most durable feature of the reforms turned out to be the removal of effective lawmaking authority from the scholars through the substitution of written legal codes for the common law of shari‘a … The consequences of the displacement of the scholars were world-changing. It opened the possibility of secular government; but simultaneously, the removal of the one meaningful check on executive authority cleared the way for autocratic and absolute power – which soon became, in much of the Muslim world, the dominant mode of government for most of the twentieth century’ (pp 7, 60-61).

‘The Ottoman constitution of 1876 was the first self-described constitutional document issued anywhere in the Muslim world. So it would not be an over-statement to say that the arrival of written constitutionalism in the Muslim world marked the beginning of the end for the Islamic state’ (p 71).

The intention in all these reforms was that the newly formed legislature would ‘make new laws to meet changed circumstances’ (p 75). But when this legislature and the constitution were abolished by the Sultan Abdulhamid in 1878, he ‘found himself in the position of a near absolute ruler’ (p 76).

3. The failure of the new states established in the Middle East after the end of World War I can be traced back not only to the way the colonial powers carved up the region but also to the crucial steps that had been taken by the Ottomans in the 19th century. In the creation of these news states it was assumed that ‘the shari‘a was a set of rules associated with Islamic tradition that were susceptible of being loaned to a general legal system where they would coexist with Western legal rules’ (pp 82-3). What happened in practice, however, was that ‘the paradigm of the executive as a force unchecked by either the shari‘a of the scholars or the popular authority of an elected legislature became the dominant paradigm in most of the Sunni Muslim world in the twentieth century … the distinctive distortions of many Muslim states in this era were products of unchecked executive authority …’ (p 79).

Turkey took a very different route under Ataturk, and the special significance of his  abolishing of the caliphate in 1924 was that his program of radical secularism

‘all but severed the connection between state and religion, allowing the latter to exist only as a source of personal faith wholly subordinated to the state … It would be difficult to imagine a more definitive repudiation of the old Islamic constitutional order’ (p 87).

‘… the displacement of the shari‘a and the decline of the scholarly class left behind no institutional force capable of effectuating a replacement. In such an environment, there is no obvious barrier to the growth of the unchecked executive … It follows from this analysis that the nature of unchecked presidentialism in the Arab world is distinctive’ (p 90).

4. The Islamist call for shari‘a and an Islamic state is not simply an attempt to restore a golden age in the past but to create something radically new as an alternative to the ideologies imported from the West which have so obviously failed in the Muslim world – humanism, communism, socialism and capitalism. The new Islamic states earlier in the century set out ‘to adopt the structures of liberal constitutional democracy and to try to fuse them with Islamic principles’ (p 11). The failure of this project, however, has led the Islamists to insist that shari‘a needs to be implemented in a genuinely new kind of Islamic state:

‘The failures of the modern states that are to be found in majority-Muslim countries help to explain the surprising renaissance of Islam not only as a faith but as a powerful political force in the last quarter century … It has been widely noticed that a central theme in contemporary Islamic political argument is the demand for justice, a demand driven both by the language of the Qur’an and by the striking absence of justice in actually existing political arrangements. What has not been as well understood, however, is the intimate link between the demand for justice and the core Islamic political goal of establishing shari‘a… the true meaning of shari‘a is, of course, law itself – and just not any law, but the divine Law that governed the Islamic state through the centuries of its success’ (p 9).

The approach of Islamists today differs in one very important respect from the traditional Islamic model:

‘Over the last century, Islamists have been prepared to circumvent, and even implicitly repudiate, certain aspects of the tradition that intervened between the Prophet and the modern era. Specifically, for political-programmatic reasons, Islamist have wanted to do away with the scholars’ monopoly on the shari‘a and its institutions. This willingness reflects a very basic difference between the Islamists and more tradition-minded movements like Saudi-inspired salafism, which hews much more closely to its own strand of the Islamic legal tradition. Nonscholars themselves, the Islamists by contrast seek a world in which nonscholars run the state in accordance with values derived from Islam. The necessary precondition of this ideal is to imagine that there exist Islamic values and ideals that can be identified and applied without reliance on the scholars….

‘The Islamists’ model, in other words, could not be further from the restoration of the scholars to their traditional constitutional position. It is, in fact, premised on the replacement of these scholars by ordinary Muslim laymen who must be guided by their own, nonscholarly interpretation of Islamic tradition’ (pp 108-10).

Feldman suggests that ‘mainstream Islamism has in principle accepted the compatibility of the shari‘a  and democracy’. What this means in practice is

‘for the constitution of the Islamic state to acknowledge divine sovereignty rather than establish popular sovereignty and then use it to enact Islam law. On this theoretical model, the people function somewhat as the ruler did in the classical constitutional order: they accept the responsibility for implementing what God has commanded.

‘In effect, the mainstream Sunni Islamist position is that the democratically elected legislature should draft and pass laws that incorporate the content of Islamic law. The constitution of the state will say that Islam or Islamic law is either “the source of law” or “a source of law”. Where Islamic law does not provide univocal answers, the democratically chosen Islamist legislature is supposed to use its discretion to adopt laws infused with Islamic values.

‘The result is a fundamental change in the theoretical structure underlying Islamic law: the shari‘a is democratized in that its keeping is given over to a popularly elected legislature charged with enacting legislation derived from the source that is the shari‘a… The problem of the missing scholars who traditionally interpreted the shari‘a is addressed through the substitution of the elected legislature for the scholars’  (119-120).

How are these elected legislatures going to interpret shari‘a, taking on the role of the scholars of the past? Will they be able to create an effective balance of power over against the executive? And will there be ‘an institutional authority with the capacity to stand up and check executive power in the name of the law’? ( p 14). Feldman outlines the best and the worst case scenarios that might emerge:

‘To the optimists, the democratized shari‘a today represents nothing less than the opportunity to get back on track: to put the Islamic tradition of the rule of law back into contact with the democratic impulses that have recently emerged in the Muslim world …

‘From the pessimist’s perspective, however, the aspiration to restore the rule of law through the combination of an elected legislature, a powerful judiciary, and a secret recipe of Islamic values is the worst sort of naïve fantasy of political-legal reformation. The ideas here are abundant; but the institutions are missing. A democratically elected legislature may be wished into existence – as the experiences of Iraq and to a lesser degree Afghanistan suggest – but that does not mean it will have either the incentives, the experience, or the confidence to become something greater than the sham legislatures that prevail in many places in the Arab and Muslim worlds’ (p 125).

‘Given that Islamic law is, historically speaking, the product of the scholarly community, how can Islamic law be said to rule when it is not to be shaped or controlled by the scholars who were its keepers? The answer is a paradox: shari‘a without the scholars. In this way, the Islamic state envisioned by the Islamists could not be more different from the Islamic state of the classical constitutional order’ (p 117).

5. In this context Feldman explains the startling novelty of the changes made by Ayatollah Khomeini in Iran after the Revolution of 1979. Whereas in the earlier Islamic state there had been a separation of powers between the scholars and the rulers, with his radically new doctrine of vilayat-e faqih, the authority of the scholar-jurist, he brought these power together in one person.

‘… in this account, the scholars would directly exercise the power to rule. When the shah fled, Khomeini presented himself as the scholar most qualified to govern in his stead. As a popular slogan of the revolutionary moment had it, “the Shah has gone, the Imam has  come.” ‘ (135-6)

‘Where the scholars had traditionally functioned as a balance against the executive authority of the ruler, now the scholars for the first time actually were the ruling class. The scholars’ stranglehold on the composition of the legislature ensured that no other base of power existed to counterbalance the scholars. The result was an unfettered, supreme scholarly executive’ (pp 136-7).

‘Khomeini did revive the position of the scholars. But instead of restoring the balance between the ruler and the scholars, he sought to merge these two separate institutions under a single supreme jurist-ruler – and the failures of the Islamic Republic of Iran are the legacy of this magalomaniac mistake’ (p 11).

6. Will the Islamists be able to set up governments which really will create the kind of just society that they have been calling for?  This is the challenge facing them today, and ‘the public will not be satisfied until they have had a chance to see whether the Islamists can actually carry it off’ (pp145-6).

‘All this brings us to the question of whether, in power, Islamists could in fact bring about the rule of law. As the case of Iran shows, a government organized in the name of Islam can be as constitutionally corrupt as a secular autocracy and so may find itself equally unpopular with its citizens. If the Islamists cannot deliver political justice, they will find themselves discredited like their predecessors. Yet if the Islamists can deliver on their promises of justice, it seems more than possible that a return to some form of shari‘a governance could spread throughout the Arab and Muslim worlds’ (p 147)

http://press.princeton.edu/titles/8598.html – table of contents, reviews, Q&A with author and introduction (pdf)