Noah Feldman

Princeton University Press, 2008

Noah Feldman is a professor at Harvard Law School. He speaks Arabic and helped the Iraqis write their constitution.

For Muslims law began as it had for Judaism: as a matter of religion. Law for Muslims became a matter of interpreting the Koran. Mohammad the Prophet is reported to have said "My people shall not agree upon an error." When the not very democratic Ottoman Empire dominated Islam it was not the Muslim people in general who were doing the agreeing; it was the Islamic scholars who were expected to decide what was error and what was not.

The Ottoman Empire had its ruler, the Sultan. He held on to the instruments of violence -- the military -- which gave him his political power. Government officials appointed judges and jurists, and jurists with the title of mufti had the right to issue fatwas (opinions within religious law). Conflict could develop between the scholars and their interpretation of the Koran and the behavior of the Sultan, but the scholars had to live with it.

Legal decisions were based somewhat on a consensus among the Islamic scholars -- with various schools of thought in various geographical areas. And on a specific problem that had arisen, scholars might borrow from a scholar from another school of thought. As elsewhere, the law was not exact.

The sultan was not subject to the law as in the rule of law in today's democratic societies. But the Ottoman sultan was also caliph, the supposed successor to the Prophet Muhammad, and thought to be obliged to live according to the law -- the sharia -- and, writes Feldman, "to fulfill the Qur'anic injunction to 'command the right and forbid the wrong'." Feldman adds, "...the ruler could pervert the course of justice only at the expense of being seen to violate God's law."

Feldman describes a similarity between the development of law in Ottoman society and Christendom. "In theory," writes Feldman, "the scholars discovered the law in a manner not entirely unlike that of English judges who claimed to discover the common law by reasoning from ancient precedents." Feldman describes the scholars as drawing from custom, experience and consensus. He writes that schools of legal thought "had an institutional component that emerged from their intellectual cohesion." The Ottoman Empire was Islamic and needed an "effective and unified legal system to keep its house in order and ensure economic growth. The Ottomans, that is, needed law, as had the Romans before them."

The Ottomans were Sunni, and Feldman writes,

In the classical Sunni constitutional balance, the shari'a existed alongside a body of administrative regulations that governed many matters in the realms of taxation and criminal law.

He adds,

By tradition and logic, the shari'a was an uncodified body of legal doctrines, principles, values, and opinions. It was the province of the scholarly class to use interpretation and discern the requirements of the law. The fact that the law could not be looked up and ascertained by just anybody was precisely what made the scholars into the keepers of the law and its embodiment.

All of this fell apart with the decline in military power of the Ottoman Empire at the beginning of the 19th century. "Part Two" of Feldman's thin book is about the decline and fall of shari'a law where the Ottomans had ruled. The Ottoman Empire suffered military setbacks against Europeans in the early 19th century. Dr. Feldman describes this as a time when "Western bureaucracy, with its sharply defined responsibilities, high quality record keeping and use of statistics, was becoming an extraordinarily powerful tool of government." Ottoman reformers associated their military weakness with failure of internal order, and to get their empire back into strong financial and military condition the reformers began constructing a legal system independent of the shari'a, reforms "collectively known as the Tanzimat." Feldman argues that "these legal and constitutional reforms displaced and destroyed the scholarly class."

Feldman writes that the Ottoman's constitution of 1876 provided the first legislative body designed along Western lines to be created in the Muslim world. But legislation remained subject to the approval of the sultan, and the sultan appointed members to the upper of the body's two chambers.

Something different happened in Saudi society. The Saudis were a force in conflict with the Ottoman Empire, and Saudi Arabia became "one of the only countries in the whole of the Muslim world that preserves some recognizable version of the classical Islamic constitutional order -- and the one Arab country where executive power is today counterbalanced by the scholars" -- with the Saudi king never having declared himself to be caliph, unlike the Ottoman sultan.

The Ottoman Empire collapsed at the end of World War I, and in the Middle East colonial rule by France and Britain followed -- with Britain and the Saudis as allies. Outside Saudi Arabia, disappointed Muslims, writes Feldman, began a movement "to capture the reins of the existing state and then to transform society through a program of principles and laws capable of being implemented by decree... " This gets into Part Three of Feldman's book: "The Rise of the New Islamic State."

Feldman does not equate Islamists with terrorists. He does describe Islamist opposition to "the Middle East's oppressive or dictatorial regimes." He writes that "Islamism boasts of its capacity to create something new and pure." And:

...Islamists rely on the notions that the individual may interpret the Qur'an [Koran] on his own, even against the authority of the scholars. Islam, unlike Catholicism, never formally restricted scriptural interpretation to the scholarly class... In the case of legal interpretation, the issuance of formal opinions was restricted to authorized muftis. The Islamists have set out to reverse this.

The Islamists want "a return to the Qur'an as a touchstone of true Islam." There is a desire for a shari'a "without conferring authority over the law on the scholars who were long its keepers," a shari'a built on consensus and an effort "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." Feldman is talking about a rule of law built upon a constitution and experience, implemented by legislatures and courts.

Islamists claim that they can offer freedom of worship and other freedoms just as well as England and Norway -- where the Church of England and Lutherism have been the official state religions.

Feldman writes:

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 naive fantasy of political-legal reformation.

He asks:

Can Islam and democracy cohere, either in principle or in practice? This crucial question -- debated in scores of Arabic books, articles, and fatwas since the temporary success of Islamists in the Algerian elections of 1990 -- is no longer merely of abstract or regional interest.

Feldman writes that "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." Feldman points out that in the Iranian Revolution state power was taken over by the Islamic scholars, something new in Islam.

A real democracy with a rule of law and tolerance, Feldman might agree, requires development of a democratic tradition. Feldman puts it in institutional form, writing that "the ideals of the rule of law are not and cannot be implemented in a vacuum. For that a state needs actual effective human institutions." And he adds that gradualist constitution change "looks more attractive than ever."

We have Pakistan to view as an example. Pakistan has a Federal Islamic or Sharia Court, and Pakistan is stumbling in an effort at democracy and rule of law. So too is Iraq. Article 14 of Iraq's Sharia Constitution stipulates that “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status.”

Feldman concludes that "The Islamists' odds of success at the ambitious endeavor of creating and renewing institutions to deliver the rule of law can never be high." He adds that "Nevertheless, with all its risks and dangers, the aspiration to create a system of government that draws on the best of the old while coming to terms with the new is as bold and noble a goal as can be imagined."