111V4W Print Request: Current Document: 916 Time of Request: May 30, 2004 08:33 PM EDT Number of Lines: 978 Job Number: 1822:0:18711124 Client ID/Project Name: Research Information: US Law Reviews and Journals, Combined Islamic Law Send to: ANU, 1 AUSTRALIAN NATIONAL UNIVERSITY THE LIBRARY CANBERRA ACT, AUSTRALIA 2601 Page 1 916 of 1018 DOCUMENTS Copyright (c) 2001 UC Regents UCLA Journal of Islamic and Near Eastern Law Fall, 2001 / Winter, 2002 1 UCLA J. Islamic & Near E.L. 67 LENGTH: 15724 words ARTICLE: CONSTITUTIONALISM AND THE ISLAMIC SUNNI LEGACY Khaled Abou El Fadl* * Acting Professor, UCLA School of Law and the Omar and Azmeralda Alﬁ Distinguished Fellow in Islamic Law. I am grateful to Stephen Gardbaum and my wife Grace for their invaluable feedback and assistance. I thank Anver Emon, my research assistant, for his diligent work on this paper. I also thank UCLA School of Law for providing the funding for this research. I express my warm appreciation for the competent and diligent staff of the Law School library who worked hard to facilitate this research. This article was originally prepared for a Harvard Law School conference on Islam and constitutionalism. A different version of this paper will appear in a volume on Islam and constitutionalism edited by Houchang Chehabi and Sohail Hashmi. I am very grateful to the competent staff of JINEL and especially to Lilly Ghahremani, who edited this article. SUMMARY: ... Therefore, one cannot help but worry that speaking of constitutionalism in Sunni Islamic thought is not only an anachronism, but also an abstraction that ultimately will yield limited insight. Furthermore, abstract discourses about constitutionalism and Islamic political doctrines are risky business. ... Ibn Khaldun's categorization is not unusual in pre-- modern Islamic literature. ... Although the idea of government limited by law is well- -supported in the Islamic tradition, it is problematic to argue that this amounts to a principle of limited government or the rule of law. ... Similar dynamics are observed in the early Islamic debates on God's dominion or sovereignty (hakimiyyat Allah). ... The terms of the contract were not extensively discussed in Islamic sources. ... There is no precedent in Islamic discourses for a negotiated contract of the Caliphate. ... It is reasonable to conclude that these ﬁve values were emptied of any theoretical social and political content and were reduced to technical legalistic objectives. ... In many ways, in an Islamic system, sovereignty belongs to the Shari'ah, not the people. ... This dilemma was resolved somewhat in Islamic discourses by distinguishing between Shari'ah and ﬁqh. ... In Islamic theology, this possibility cannot be entertained. ... TEXT: [*67] It is doubtful whether it is helpful to abstract the doctrines of constitutionalism from their remarkably diverse cultural and social contexts. Constitutionalism reﬂects embedded normative values that arise from evolved historical practices that are not easily transplanted outside their natural habitat. n1 In many ways, constitutionalism must be practiced and not theorized. Therefore, one cannot help but worry that speaking of constitutionalism in Sunni Islamic thought is not only an anachronism, but also an abstraction that ultimately will yield limited insight. Furthermore, abstract discourses about constitutionalism and Islamic political doctrines are risky business. Arguing that Islamic political doctrines are essentially consistent with constitutionalism only begs the question: Which of the many forms of constitutionalism is one speaking of? Moreover, is it realistic to expect that Islamic political doctrines can be re--invented to support a political practice that is not rooted in Islamic culture? On the other hand, arguing that Islamic political doctrines are inconsistent with notions of constitutionalism is likely to draw an accusation of cultural arrogance, and even of being anti- -Muslim. [*68] These cautionary points should not compel us to abandon the attempt to construct a coherent discourse on constitutionalism and Islam; it only mandates that we clearly recognize the limits of abstractions and generalize in a cautious and restrained manner. In light of this, I will phrase the issue for this essay in the following fashion: I Page 2 1 UCLA J. Islamic & Near E.L. 67, *68 believe it to be beyond dispute that constitutionalism gives expression to, or appropriates normative values generated by certain practices and traditions. In the same way as there are traditions of constitutionalism, there are also traditions of terror, tyranny, or personalized rule. Normativities generated by Islamic doctrines could possibly support or promote practices consistent with constitutionalism or tyranny. To the extent that Islamic doctrinal normativities legitimate or promote particular traditional practices, one can argue that these normativities could potentially support or undermine - a constitutional tradition. Therefore, this essay will focus on potentialities - i.e., the doctrinal aspects in Sunni political thought that could legitimate, promote, or subvert the emergence of a constitutional practice in Muslim cultures. These -opted and directed by systematic thought supported doctrinal potentialities exist in a dormant state until they are co- by cumulative social practices. This essay concerns itself with doctrinal potentialities or concepts constructed by the interpretive activity of Muslim scholars (primarily jurists), but will not focus on the socio- -political practices in Islamic history. I. The Notion of Constitutionalism and Majoritarian Democracy Before analyzing Sunni political doctrines, it is necessary to explore the idea of constitutionalism and its implications. As noted above, there is no single form of constitutionalism, and it is fair to say that there are many different theories explaining and justifying a variety of constitutional practices. Nevertheless, in the broadest sense, constitutionalism connotes a political system in which there are limits imposed on the powers of the government, an adherence to the rule of law, and the protection of fundamental individual rights. n2 The powers of the government are limited not only by virtue of their subjection to the law, but also by the imposition of institutional [*69] restraints on the discretion of the government in dealing with its citizens. n3 Furthermore, the rule of law mandates the existence of legitimate, recognizable, and predictable rules made equally applicable to all members of society. n4 Individual rights require affording protections to guard the well--being and dignity of individuals, and that such interests be considered as entitlements and not mere privileges. n5 While the requirement of individual rights is the most difﬁcult to justify conceptually, every constitutional democracy in the contemporary age has recognized that individuals ought to be protected from capricious governmental -being and dignity. n6 It is doubtful whether a state that actions, and that the citizenry is entitled to a basic level of well- habitually practices torture, summary executions, slavery, or indentured servitude can be described as a constitutionalist system. The existence of a written constitution is not what deﬁnes a constitutional system. A political system can generate a written constitution, but not base itself upon, nor bind itself to such a document. In other words, the document could fail to reﬂect the socio--political culture of a system and, therefore, such a document could be violated, altered, or suspended on a regular basis. Furthermore, the constitutional document itself could fail to impose limits on the powers of the government or fail to guard the rights of the citizenry. Finally, a written constitution is not mandatory for the existence of constitutionalism so long as there is an established practice of limiting governmental powers, the rule of law, and recognizable guidelines for how the government may treat its citizens. For instance, England, New Zealand, and Saudi Arabia do not have written constitutions or a bill of rights, but England [*70] and New Zealand are constitutional democracies and Saudi Arabia is most deﬁnitely not. n7 Finally, I note that constitutionalism, as a concept, is not the same as a majoritarian democracy. In fact, as several commentators note, constitutionalism is anti--majoritarian and therefore exists in tension with democratic practice. n8 Constitutionalism mandates that there are fundamental social values and individual entitlements that may not be negated by the will of the majority. The will of the majority is respected as long as it does not trump the fundamental rights of the minority. n9 Of course, some scholars have argued that constitutionalism, far from being contrary to democracy, actually makes democracy more effective, or guards democracy from its occasional failures. n10 The fact that constitutionalism guards certain basic values and treats them as inviolable has led some commentators to argue that constitutionalism is founded on a tradition of natural law. n11 In addition, Sanford Levinson and others have argued that constitutionalism is a form of faith or civil religion. n12 Constitutionalism requires a conviction or belief in certain normative values about social morality and the worth of a human being. This [*71] belief is akin to a religious conviction ingrained in the cultural values of a society. n13 This explanation does not address other contentious conceptual issues such as the necessity of a free market or the right to private ownership of property for the successful existence of constitutionalism. n14 Furthermore, I do not - address the role of civil society -- society in which power is presumably distributed among social institutions - or whether constitutionalism must be based on a secular order that limits religion to the private sphere or that excludes religious laws from the public sphere. These are important issues, but they require a much more extensive treatment. The meaning of Page 3 1 UCLA J. Islamic & Near E.L. 67, *71 these institutions, or their necessity for the creation or survival of constitutional orders, is heavily contested. Nevertheless, some of the issues discussed in this essay are pertinent to discussions on secularism in Muslim societies and, therefore, I will have an occasion to elaborate upon this practice. At this stage, it is useful to clarify the sense in which the word constitutionalism is used in this essay before proceeding to address the Islamic context. II. The Main Concepts of Sunni Political Thought: A Government Bound by Law Ibn Khaldun (d. 784/1382), the well--known Muslim historian and sociologist, separated all political systems into three broad types. The ﬁrst was described by Ibn Khaldun as a natural system, which approximates a primitive state of nature. This is a lawless system in which the most powerful groups in society dominate, and tyrannize the rest. The second system, which Ibn Khaldun describes as dynastic, is tyrannical as well, but it is based upon laws issued by a king or prince. However, due to their origin, these laws are considered baseless and capricious, and so people obey such laws out of necessity or compulsion, but the laws themselves are illegitimate and tyrannical. The third system, and the superior, is the Caliphate, which is based on Shari'ah law. Shari'ah law fulﬁlls the criteria of justice and legitimacy by binding the governed and governor alike. Because the government is bound [*72] by a higher law that it may not alter or change, and because the government may not act whimsically or outside the pale of law, the Caliphate system is superior to any other. n15 Ibn Khaldun's categorization is not unusual in pre--modern Islamic literature. The notion that the quintessential characteristic of a legitimate Islamic government is that it is a government subject to and limited by Shari'ah law, is often repeated by pre- -modern jurists. n16 Sunni jurists insisted that a just Caliph must apply and be himself bound by Shari'ah law, and in fact, many like Abu al--Faraj al--Baghdadi Ibn al- -Jawzi (d. 597/1200) asserted that a Caliph who tries to alter God's laws for politically expedient reasons is implicitly accusing the Shari'ah of imperfection. n17 Ibn al- -Jawzi elaborates upon this point by contending that under the guise of political expediency or interests, innocent Muslims could be murdered. In reality, he argues, no political interest should ever justify the killing of a Muslim without legitimate legal cause. n18 -established that the jurists (ulama) are the spokespeople Particularly after the 4th/ 10th century, it became fairly well- for the Divine law, as expressed in the oft--repeated phrase that the ulama are the "inheritors of the Shari'ah." Effectively, Sunni jurists argued that the Caliph should consult with the jurists before undertaking to implement any laws. Although Sunni jurists often argued that the Caliph should ideally be trained in law and qualify for the rank of a mujtahid (jurist of the highest rank capable of generating de novo law) himself, this was not to suggest that the Caliph be empowered to implement [*73] laws without regard to the opinions of the jurists. Even a Caliph who is a mujtahid is bound by the well--established principles and rules of law. n19 I will expand upon this issue when I later address the idea of government by consultation (shura). Although the idea of government limited by law is well--supported in the Islamic tradition, it is problematic to argue that this amounts to a principle of limited government or the rule of law. Part of the challenge is that Muslim jurists did not articulate institutional mechanisms for achieving either of these goals. Moreover, Muslim jurists were not articulating a notion of the supremacy of the rule of law, but the supremacy of legal rules. In other words, Muslim jurists were not articulating the idea that there is a process that guards core legal values and that this process is binding upon the government. Rather, they were arguing that the positive commandments of Shari'ah, such the punishment for adultery or the drinking of alcohol, ought to be respected by the government. Of course, it is possible for a government to declare its intention to abide by all the positive commandments, but manipulate the interpretation and application of the rules in order to obtain desired results. As is the case with present Muslim states, nothing prevents the government from incorporating a process that provides a bureaucratic justiﬁcation or simply rubberstamps whatever the government deems desirable. The juristic conception of a government limited by Shari'ah amounted to the notion that the government is acting lawfully if it is implementing Shari'ah. n20 Nevertheless, a government could feasibly implement Shari'ah criminal penalties, prohibit usury, dictate rules of modesty and so on, and yet remain a government of unlimited powers not subject to the rule of law. This is because Shari'ah is a general term for a multitude of legal methodologies and a remarkably diverse set of interpretive determinations. n21 [*74] Unless the conception of government is founded around core moral values about the normative purpose of Shari'ah, and unless there is a process that limits the ability of the government to violate those core moral values, the idea Page 4 1 UCLA J. Islamic & Near E.L. 67, *74 of a government bound by Shari'ah remains hopelessly vague. It is quite possible for a government to faithfully implement the main technical rules of Shari'ah, but otherwise ﬂout the rule of law. In fact, implementation of the technicalities of Shari'ah can be used as an excuse for allotting the government unrestrained legislative and executive powers. For instance, in order to guard modesty, the government could issue arbitrary laws forbidding many forms of public assembly; under the guise of protection of orthodoxy, the government could pass arbitrary laws punishing creative expression; under the guise of protection of individuals from slander, the government could punish many forms of political and social criticism; and a government could imprison or execute political dissenters under the claim that they are sowing ﬁtnah (discord and social turmoil). Arguably, all such governmental actions are Shari'ah--compliant unless there is a clear sense about the limits imposed upon the ability of the government to service even the Shari'ah. Put differently, the rules of law cannot be used as an excuse to ﬂout the rule of law, and the state cannot be allowed to usurp the process by which Shari'ah law is determined. Concerns about the reach of the Caliph's power under Shari'ah has antecedents in Islamic history, and so it is not an entirely novel issue. The Maliki jurist al--Qaraﬁ (d. 684/1285) attempted to articulate a theory deﬁning the legal jurisdiction of caliphs, judges, and juris--consuls. n22 There is also historical anecdotal evidence expressing concern about the ability of contending parties to manipulate the interpretation of the Shari'ah to achieve certain aims. For instance, a report was attributed to the Prophet in which he reportedly says, "If you lay siege to a fortress, do not accept the surrender of the fortress on the condition that you will apply God's law, for you do not know [*75] [what] God's law requires. Rather, have them surrender on the condition that you will apply your own judgment." n23 Reports such as this one reﬂect a nascent concern with the nature of the constraints that the broad concept of Shari'ah may have on the actual process of adjudication or dispute resolution. Notably, however, the invocation of Shari'ah or the Qur'an and Sunna in confrontations with authority was often used as a symbolic point of reference to legitimacy or legality in the management of the social order. For example, in another anecdotal report that reﬂects this dynamic, the ﬁrst Umayyad Caliph Mu'awiya (r. 40-- 60/661--680) asked Hujr b. Adi al--Kindi (d. 51/671) for his allegiance (bay'a). Al- -Kindi reportedly agreed to give his allegiance but only on the condition that Mu'awiya abides by the Qur'an and Sunna. Mu'awiya refused, arguing that a conditional allegiance is ineffective and, hence, al- -Kindi refused to give his oath of allegiance. n24 Similar dynamics are observed in the early Islamic debates on God's dominion or sovereignty (hakimiyyat Allah). As is well known, the group known as the Haruriyya (later known as the Khawarij) rebelled against the fourth Rightly-- Guided Caliph Ali Ibn Abi Talib (d. 40/661) when he agreed to arbitrate his political dispute with Mu'awiya. The Khawarij believed that God's law clearly supported Ali and, therefore, arbitration or any negotiated settlement was inherently unlawful. The law, as a general category, supported Ali, and any settlement that did not reﬂect this principle of legality, by deﬁnition, was illegitimate. Ironically, Ali had agreed to the arbitration himself, on the condition that the arbitrators would apply the law of the Qur'an. Ultimately, the arbitration did not succeed and Ali and Mu'awiya were compelled to return to armed conﬂict. In the view of the Khawarij, by accepting the principle of arbitration and by accepting the notion that legality could be negotiated, Ali, himself, had lost all claims to legitimacy. In fact, the Khawarij declared Ali a traitor, rebelled against him, and eventually succeeded in assassinating him. Typically, the story of the Khawarij is recounted as an example of early religious fanaticism in Islamic history, and I have no doubt that this view is substantially correct. However, one ought not overlook the fact that the Khawarij's rallying cry of "dominion belongs to God" or "the Qur'an is the judge" (al--hukm li--Allah or al--hukm li al--Qur'an) [*76] was a call for the symbolism of legality and the supremacy of law. n25 This quest for legality quickly descended into an unequivocal radicalized call for clear lines of demarcation between what is lawful and unlawful. The anecdotal reports about the debates between Ali and the Khawarij regarding this matter reﬂect an unmistakable tension about the meaning of legality, and the implications of the rule of law. In one such report, members of the Khawarij accused Ali of accepting the judgment and dominion (hakimiyya) of human beings instead of abiding by the dominion of God's law. When he learned of this accusation, Ali called upon the people to gather and brought a large copy of the Qur'an. Ali touched the Qur'an commanding it to speak to the people and to inform them about God's law. The people gathered around Ali exclaimed, "What! It cannot speak, for it is not a human being." Upon hearing this, Ali commented that the Qur'an is but ink and paper, and it is human beings who give effect to it according to their limited personal judgments. n26 Arguably, anecdotal stories relate, not only to the role of human agency in interpreting the Divine word, but also to a symbolic search for the fundamental constitutional values in society. These constitutional values might differentiate between the issues that are subject to political negotiation and expedience, and those issues that constitute unwavering matters of principle and that are strictly governed by law. Furthermore, one can discern in such reports a search for the proper legal limits that may be placed upon a ruler's range of discretion. Page 5 1 UCLA J. Islamic & Near E.L. 67, *76 III. Justice As a Core Constitutional Value One of the issues commonly dealt with in Sunni political thought was the purpose of government (or the Caliphate). The statement of Imam al--Haramayn al--Juwayni (d. 478/1085) is fairly representative of the argument of Sunni jurists. Al-- Juwayni states: The imama (government) is a total governorship and general leadership that relates to the special and common in the affairs of religion and this earthly life. It includes guarding the land and protecting the subjects, and the spread of the message [of Islam] by the word and sword. It includes [*77] the correcting of deviation and the redressing of injustice, the aiding of the wronged against the wrongdoer, and taking the right from the obstinate and giving it to those who are entitled to it. n27 The essential idea conveyed here is that government is functionally necessary to resolving conﬂict, protecting the religion, and upholding justice. In some formulations, justice is the core value that justiﬁes the existence of government. Ibn al-- Qayyim (d. 751/1350), for example, makes this point explicit when he asserts the following: God sent His message and His Books to lead people with justice... . Therefore, if a just leadership is established, through any means, then therein is the Way of God.<elip> In fact, the purpose of God's Way is the establishment of righteousness and justice... so any road that establishes what is right and just is the road [Muslims] should follow. n28 This argument is rooted in a methodical debate among pre- -modern scholars about the nature of people if left without a government. This debate is remarkably similar to the Western discourse on the state of nature or the original condition of human beings. In fact, the similarity is such that one suspects that it might be the result of a cross--cultural transmission from the Islamic Civilization to the Christian West. The Islamic debate focused on the original, uncorrupted and intuitive nature of human beings, and how that nature affects the role and purpose of government. Some scholars such as Ibn Khaldun (d. 784/1382), and jurists such as al-- Ghazali (d. 505/1111) argued that human beings are by nature fractious, contentious, and not inclined towards cooperation. Al--Ghazali, in particular, added that human beings are prone to misunderstandings and conﬂicts. If one observes the affairs of people, one will notice that married couples and even parents and children ﬁght, and refuse to cooperate in mutually beneﬁcial endeavors. Therefore, these authorities typically argued, government is necessary to force people to cooperate with each other. Government, in a paternalistic fashion, must force people to act contrary to their fractious and contentious natures. n29 Another school of thought, exempliﬁed by the work of al- -Mawardi (d. 450/1058) and Ibn Abi al--Rabi (d. 656/1258), n30 argued that people, by their nature, have a tendency to cooperate for physical and spiritual reasons. In [*78] fact, in order to limit the human ability to commit injustice, God created human beings weak and dependent on each other. Only through mutual cooperation will human beings be able to establish a just social and political order. Furthermore, God created human beings to be diverse, with the intention that, in their differences, they will recognize a need for each other. This need will invite human beings to augment their natural tendency to assemble and cooperate in order to establish justice. The relative weaknesses of human beings and their remarkably diverse abilities and habits will further induce people to draw closer and cooperate with each other. Importantly, human beings, by their nature, desire justice. Therefore, they will tend to cooperate to obtain this justice. If human beings utilize the Divine gift of intellect and the guidance of the law of God, through cooperation, they are bound to reach a greater level of strength and justice. The ruler, this school of thought argued, ascends to power through a contract with the people pursuant to which he undertakes to further the cooperation of the people, with the ultimate goal of achieving a just society or, at least, maximizing the potential for justice. n31 I will address the concept of the contract of the Caliphate subsequently, but for now it is important to emphasize the Page 6 1 UCLA J. Islamic & Near E.L. 67, *78 potential of this pre--modern Islamic discourse. The discourse on the original condition and the proclivity of human beings for justice can be appropriated into a normative stance that considers justice a core value that the constitutional order is bound to protect. Furthermore, this discourse could be appropriated into a notion of delegated powers in which the ruler is entrusted to serve the core value of justice in light of systematic principles that promote the right of assembly and cooperation in order to enhance the fulﬁllment of this core value. In addition, a notion of limits could be developed that would restrain the government from derailing the quest for justice or from hampering the right of the people to cooperate in this quest. Importantly, if the government failed to discharge the obligations of its covenant then it would lose its legitimate claim to power. Of course, this is wishful thinking -- not because the possibilities explored are without foundation in the Islamic tradition, but because the conception and role of the government or Caliphate remained rather vague in Islamic practice. I will deal with the idea of the Caliphate momentarily. However, beyond the issue of the Caliphate, at the conceptual level the constituent [*79] elements of justice were not explored in Islamic doctrine. There is a tension between the obligation to implement the Divine law and the demands for justice, a tension produced by the process of deﬁnition. To put the question bluntly, does the Divine law deﬁne justice or does justice deﬁne the Divine law? If the former is true, then whatever one concludes is the Divine law, therein lies justice. If the latter is correct, then whatever justice demands is, in fact, the demand of the Divine. For example, while asserting that people in the original condition will naturally gravitate towards cooperation, Ibn Abi al--Rabi argued that after people form a social unit, God sends His law to the people. God also appoints leaders that guard and apply God's law. Thus, God's appointee insures that the people cooperate in giving effect to God's law. n32 In effect, Ibn Abi al--Rabi makes the organizing principle of society the Divine law, and the Divine law becomes the embodiment of justice. Under this paradigm, there is no point in investigating the constituent elements of justice. Whether justice denotes equality of opportunities or results, maximizing the potential for personal autonomy, the maximization of individual and collective utility, the guarding of basic human dignity, or even the simple resolution of conﬂict and the maintenance of stability, or any other conception that might provide substance to a general conception of justice, is all irrelevant. There is no beneﬁt to engaging in this investigation because the Divine law preempts any such inquiry. The Divine law provides particularized positive enactments that exemplify, but do not analytically explore, the notion of justice. Conceptually, the organized society is no longer about the right to assembly, cooperation, or the right to explore the means to justice, but simply concerns itself with the implementation of the Divine law. This brings us full circle to the problem noted above, which is precisely that the implementation of the Divine law does not necessarily amount to the existence of limited government, rule of law, and the protection of basic individual rights. IV. The Instrumentalities of Government in Sunni Thought It is well established in Sunni thought that the Prophet died without naming a successor to lead the Muslim community. The Prophet intentionally left the choice of leadership to the Muslim nation as a whole. n33 A statement attributed to the Rightly Guided Caliph Abu Bakr asserts, "God has left people to manage their own affairs so that they will choose a leader who will [*80] serve their interests." n34 The word Caliph, the title given to the Muslim leader, literally means the successor or deputy. Early on, Muslims debated whether it is appropriate to name the leader the Caliph of God (khalifat Allah), and most scholars preferred the designation The Caliph of the Prophet (khalifat rasul Allah). Hence, the well-- known jurist al--Mawardi (d. 450/1058) states: And, he is called Caliph because he succeeded the Prophet [in leading] the nation. So it is proper to call him the caliph of the Prophet [successor of the Prophet]. The scholars disagreed over whether it is proper to call him the Caliph of God. Some allowed it because he [the leader] fulﬁlls the rights of God in His people... but the majority of the jurists disallowed it... because succession can only be in the rights of one who is dead or absent, and God is never absent or dead. n35 Nevertheless, the Caliph's source of legitimacy and parameters of his powers remained ambiguous. Whether the Caliph was considered the Prophet's successor or God's deputy, from a theological point of view, the Caliph did not enjoy the authority of either the Prophet or God. Theologically speaking, God and His Prophet cannot be equated with any other, and their powers of legislation, revelation, absolution, and punishment cannot be delegated to any other. Still, the exact nature and extent of the Caliph's powers remain ambiguous. This is partly due to the fact that the Divine law provides a nexus to the powers, and authority, of both God and His Prophet. Page 7 1 UCLA J. Islamic & Near E.L. 67, *80 In principle, the application of God's law implicates giving effect to the Divine Will, which, in turn, implicates the authority of the Divine. Therefore, Ibn al--Jawzi, for example, states: "The Caliph is God's deputy over God's followers and lands, and [the Caliphate entails] applying His orders and laws. [This job] was performed by His Prophets and the Caliph performs that role after them [the Prophets]." n36 Even if one assumes that the Caliph cannot be considered the moral equivalent of God or the Prophet, the question remains: How much of the Prophet's legislative and executive authority does the Caliph enjoy? According to the prominent jurist Ibn Taymiyya (d. 728/1328) the word Caliph simply means the physical or historical act of ruling after the Prophet, but it does not connote the transference of the Prophet's authority or power. n37 The Caliph is the historical, not the moral, successor of the Prophet, and thus, the moral and legal authority of the [*81] Prophet (or God) does not vest in a person carrying the title of Caliph. n38 At one point, Ibn Taymiyya asserts: He [the Caliph] is not the people's Lord so that he could possibly do without [their assistance]; and he is not God's Prophet, acting as their agent to God. But he and the people are partners who [must] cooperate for the welfare [of the people] in this earthly life and the Hereafter. They [the people] must help him, and he must help them. n39 Ibn Taymiyya's conception of the relationship between the ruler and the commoners is egalitarian, but it does not help in understanding the source of the Caliph's powers or in delineating the nature of the relationship between the ruler and his people. Ideally, the ruler and ruled should cooperate to promote the best interests of the community. What the exact nature of the Caliph's powers is vis--a--vis his subjects remains unclear. The Sunni jurist al--Baqillani (d. 403/1013) is more explicit in differentiating between the authority of the Caliph and God or the Prophet. He states: The imam (leader) is chosen to apply the laws expounded by the Prophet and recognized by the nation, and he, in all that he does, is the nation's trustee and representative; and it [the nation] is behind him, correcting him and reminding him... and removing him and replacing him when he does what calls for his removal. n40 In al--Baqillani's conception of the Caliphate, the Caliph is the people's duly delegated agent, charged with the obligation of implementing God's law. This brings us closer to the idea of a representative government, and to a government of - limited powers - arguably, the limitations are imposed by the people who act as overseers, insuring compliance with God's law. Signiﬁcantly, the Caliph's charge is not necessarily to give effect to the will of the people, but to give effect to God's Will, as exempliﬁed by God's law. n41 This brings us around, once again, to the issue of the boundaries set by the Divine law, and to the extent that Shari'ah law provides limits on the discretion and power of the ruler. My point, quite simply, is that wedding the notion of the Caliphate to the Divine law creates an intimate connection between the Caliph and the Divine Will, but that the Divine Will is not as discernible as some would like to believe. Al- - Baqillani's discourse, itself, reﬂects this symbolic connection when he discusses whether a ruler may name a successor to the Caliphate. [*82] Al--Baqillani argues that, in fact, it is permissible for the Caliph to do so, and that the people should accept his nomination. His justiﬁcation is the most interesting part of his discussion; he argues that the people should accept the Caliph's decision because there is a legal presumption that the Caliph always acts in the best interest of his people. For people to believe otherwise is a sin that calls for repentance. n42 This type of presumption is coherent only if the ruler represents the Divine Will, and not the will of the people, and only if the ruler answers to God and not the people. If the ruler discharges the duties of piety by giving effect to God's law, however God's law is deﬁned, he has fulﬁlled his duties to the people, and the quality or genuineness of his intentions are assessed only by God. As a result of this type of paradigm, most Muslim jurists argued that a ruler is not removable from power unless he commits a clear, visible, and major infraction against God (i.e., a major sin). n43 Muslim jurists, however, did not completely sever the connection between the ruler and the people. In Sunni theory, the -aqd (the people who have the power Caliphate must be based on a contract (aqd) between the Caliph and ahl al--hal wa al- Page 8 1 UCLA J. Islamic & Near E.L. 67, *82 of contract; also known as ahl al--ikhtiyar or the people who choose) who give their bay'a (allegiance or consent to the Caliph). In the classical theory, a person who fulﬁlls certain conditions (mustawﬁ al--shurut) must come to power through a contract entered into with ahl al--aqd pursuant to which the Caliph is to receive the bay'a in return for his promise to discharge the terms of the contract. The terms of the contract were not extensively discussed in Islamic sources. Typically, jurists would write a list of terms that included the obligation to apply God's law, the obligation to protect Muslims and the territory of Islam, and in return, the ruler was promised the people's support and obedience. There is no precedent in Islamic discourses for a negotiated contract of the Caliphate. The jurists seemed to treat the contract as a contract of implied terms, but there was no explicit rejection of the notion of a contract of negotiated terms. The extent to which the contract of the Caliphate is subject to the principle of freedom of contract and permissibility of negotiation remains unexplored in Sunni thinking. Thus far, it has been assumed that the terms of the contract are deﬁned by Shari'ah law. Who are ahl al--hal wa al--aqd (hereafter, ahl al--aqd)? According to the Mu'tazilite scholar Abu Bakr al- -Asam (d. 200/816), the public, as a whole, must constitute ahl al--aqd; therefore, the public at large must form a consensus, [*83] and each person must individually give his bay'a to the ruler. n44 The vast majority of Sunni jurists disagreed with this position. They argued that ahl al--aqd are those who possess the necessary shawka (power or strength) to insure the obedience or, in the alternative, the consent of the public. It is not entirely clear whether the material element is the obedience or consent of the people. Do the people who possess this shawka represent the consent of the governed or represent the ability to yield the amount of power sufﬁcient to insure the obedience of the people? Ahmad Ibn Hanbal, the eponym of the Hanbali juristic school of thought, focuses primarily on obedience; the people of shawka must be able to deliver the obedience of the people to the ruler. n45 On the other hand, the jurist al--Ghazali presents consent as the material issue. He argues that shawka means the ability to deliver the consent of the people -- the consent of the ahl al--aqd must represent the consent of the governed. n46 The notion of the consent of the governed ought not to be equated, however, with conceptions of delegated powers or government by the people. The consent of which al--Ghazali and others speak does not suggest a representative government that seeks to give effect to the will of the people. Rather, consent in pre--modern Sunni discourses appears to be equivalent to acquiescence. Typically, Sunni jurists assert that ahl al--aqd must be people who fulﬁll certain conditions such as decency, probity, knowledge and wisdom. n47 -aqd must consist of a certain number of the notables of society Beyond these qualiﬁcations, the jurists assert that ahl al- (shurafa al--umma) or the prominent ulama (jurists). n48 There is considerable disagreement about how many individuals would be sufﬁcient to form the ahl al--aqd. Some, such as al--Juwayni, argued that the exact number is immaterial; ahl al-- aqd could be a single person or a hundred as long as the requirement of shawka is fulﬁlled. n49 -Amma). The Sunni Mu'tazili scholar The Sunni juristic discourses exhibit a certain amount of distrust of the laity (al- -Jahiz (d. 255/868--869) asserts: "They [the laity] tend to ﬂoat with every ebb and ﬂow, and maybe [the laity] [*84] will al- be more content with choosing [to the Caliphate] the wrong--doers instead of the righteous [rulers]<elip>." n50 Although -Jahiz, being a Mu'tazili, is not representative of mainstream Sunni thought on many issues, I believe he reﬂects a al- -pose the question: What justiﬁes the contract of wider trend in this context. In order to clarify this point, we need to re- Caliphate? How should this contract be understood or categorized? Muslim jurists struggled with whether the contract of the Caliphate is akin to an employment contract, sale contract, or marriage contract in trying to deduce the jurisprudence that should apply to this unique form of contractual relationship. n51 - The political contract had rather clear historical origins - it was initiated and practiced by the Companions after the death of the Prophet. The Prophet himself was keen on taking the bay'a of his followers on several occasions. Moreover, when the Prophet became the governor of Medina, he drafted what is now known as the Constitution of Medina (wathiqat al--Madina). n52 The Constitution of Medina does not read like a modern constitutional document -- rather, it reads more like a contract or a corporate organizational document. These historical precedents must have persisted in the practices of the early Muslim community. So, although the historical origin was clear, the theoretical justiﬁcations for the doctrine of a political contract and bay'a remained ambiguous. As the jurists formed a socially and professionally recognizable class of experts, they reasoned that the purpose of the contract is to uphold God's law. The notion of political representation, however, remained vague. The overwhelming majority of Sunni jurists do not contend that the purpose of the Caliphate's contract is representation. Rather, Sunni jurists indicate that the contract is essentially a promise to uphold God's law. The consent of the people is needed because the contract is premised on a cooperative relationship between the governor and governed, with the purpose of guarding and protecting the righteous religion and Shari'ah. Even though, as we will see below, there are glimpses of the notion of representation [*85] on behalf of the people, the dominant paradigm is one in which both the ruler and ruled act as God's duly delegated agents (khulafa Allah) in implementing the Divine law. Particularly after the age of mihna (inquisition -- 217--234/833--849), the ulama were able to establish themselves as Page 9 1 UCLA J. Islamic & Near E.L. 67, *85 the exclusive interpreters and articulators of the Divine law. Thus, in order for a Caliph and community to attain and continue enjoying Islamic legitimacy, they would have to dedicate themselves to upholding the Will of God, as it had been articulated by the jurists. In a sense, we end up with a tri--polar dynamic with the ruler and governors at one pole, the jurists at another, and the laity at the third. One must consider the possibility that between the interpretive and legislative tasks of the jurists and the executive duties of the ruler, the common people do not play a major role in the negotiative process that is meant to take place among the three social poles. This possibility is realized by the jurist Ibn al- -Qayyim who states: Properly speaking, the rulers (al--umara) are obeyed [only to the extent] that their commands are consistent with the [articulations] of the religious sciences (al--ilm). Hence, the duty to obey them [the rulers] derives from the duty to obey the jurists (fa ta'atuhum taba li ta'at al--ulama). [This is because] obedience is due only in what is good (ma'ruf), and what is required by the religious sciences (wa ma awjabahu al--ilm). Since the duty to obey the jurists is derived from the duty to obey the Prophet, then the duty to obey the rulers is derived from the duty to obey the jurists [who are the experts on the religious sciences]. Furthermore, since Islam is protected and upheld by the rulers and the jurists alike, this means that the laity must follow [and obey] these two [i.e. the rulers and jurists]. n53 The ﬁnal instrumentality of government that warrants mention is the concept of shura (government by consultation). n54 There are many historical reports indicating that the Prophet regularly consulted with his Companions regarding the affairs of the state. n55 Shortly after the death of the Prophet, the concept of shura had become a symbol signifying participatory politics and legitimacy. Ali accused Umar b. al--Khattab and Abu Bakr of not respecting the shura by nominating Abu Bakr to the Caliphate in the absence of the Prophet's family. n56 The opposition to Uthman b. Affan (r. 23- -35/644--656), the third Rightly Guided Caliph, accused him of destroying the rule of shura because of his nepotistic and autocratic policies. The pretender to the Caliphate, Ibn al--Zubayr (r. 60--73/680- -692), accused the Umayyads of destroying the shura as well. Al--Hasan, Ali's son and the Prophet's grandson, [*86] lamented that the Caliphate was passed on from Mu'awiya, (the ﬁrst Umayyad Caliph, r. 40--60/661--680), to his son Yazid by saying: "If it had not been for that fact, the Caliphate would have been continued by shura until the Final Day." n57 Al- -Jahiz contended that Mu'awiya was able to achieve power only by destroying the shura and ruling by force and oppression. n58 Although the precise meaning of shura in these historical narratives is unclear, the concept most certainly did not imply a ruler merely soliciting opinions from some notables in society. The most one can say is that the term seemed to signify the opposite of autocracy, government by force, or oppression. Post 3rd/9th century, the concept of shura takes much more of an institutional shape. Shura becomes the formal act of consulting ahl al--shura (the people of consultation), who are the same group of people forming ahl al- -aqd. Muslim jurists debated whether the results of the consultative process are binding (shura mulzima) or non- -binding (ghayr mulzima). If the shura is binding, then the ruler must abide by the determinations made by ahl al- -shura. The majority of the jurists, however, concluded that the determinations of ahl al- -shura are advisory and not compulsory. Some jurists, such as al--Ghazali, did not speciﬁcally discuss the issue of the binding nature of shura, but argued that a Caliph who is not a mujtahid n59 should not rule on any problem without ﬁrst consulting the jurists. n60 In this context, al--Ghazali concluded: "Despotic, non--consultative, decision--making, even if from a wise and learned person, is objectionable and unacceptable." n61 V. The Possibility of Individual Rights The possibility of individual rights is a most challenging topic, and I cannot possibly do it justice in this article. The very notion of individual rights is elusive both in terms of the sources and the nature of those rights. [*87] Whether individual rights are inherent and absolute, or presumptive individual entitlements to be weighed against countervailing (and possibly overwhelming) considerations, is debatable. n62 Furthermore, all constitutional democracies afford protections to a particular set of individual interests such as freedom of speech and assembly, equality before the law, right to property, and due process of law. However, which particular rights ought to be protected, and to what extent, is subject to a large range of variation in both theory and practice. In this context, I am using a minimalist, and hopefully non--controversial, notion - of individual rights. By individual rights, I do not mean entitlements, but qualiﬁed immunities - the idea that particular interests related to the well being of an individual ought to be protected from infringements. Whether perpetuated by the Page 10 1 UCLA J. Islamic & Near E.L. 67, *87 state or other members of the social order, such interests should not be sacriﬁced but for overwhelming necessity. This, as I have noted, is a minimalist description of rights, and, in my view, a largely inadequate one. I doubt very much that there is an objective means of quantifying an overwhelming necessity; thus, some individual interests ought to be unassailable under any circumstances. These unassailable interests are those ones that, if violated, are bound to communicate a sense of worthlessness to the individual, and that tend to destroy that human faculty which comprehends the necessary elements of a digniﬁed existence. Under this conception, the use of torture, denial of food, shelter, or other means of sustenance (such as employment), would under any circumstances be a violation of an individual's rights. For the purposes of this essay, however, I will assume the minimalist description of rights. Some contemporary Muslim commentators have argued that the Islamic tradition can be interpreted as providing for a systematic vision of individual rights, and some of these scholarly attempts have been more persuasive than others. n63 It is fair to say, however, that the Sunni juristic tradition did not articulate individual rights as a notion of privilege, entitlement, or immunity. [*88] Nonetheless, the juristic tradition did conceive of protected interests that accrue to the beneﬁt of the individual. In jurisprudential theory, the purpose of Shari'ah is to promote the welfare of the people. The interests or the welfare of the people is divided into three categories: the necessities (daruriyyat), the needs (hajiyyat), and the luxuries (kamaliyyat or tahsiniyyat). The law and political policies of the government must fulﬁll these interests in descending order of - importance - ﬁrst, the necessities, then the needs, and then the luxuries. The necessities are further divided into ﬁve basic - -daruriyyat al--khamsah: religion, life, intellect, lineage or honor, and property. n64 But Muslim jurists did not values - al- develop the ﬁve basic values as conceptual categories and then explore the theoretical implications of each value. Rather, they pursued what can be described as an extreme positivistic approach to rights. Muslim jurists examined the existing positive legal injunctions that can be said to serve these values, and concluded that by giving effect to these speciﬁc legal injunctions, the values have been sufﬁciently fulﬁlled. So, for example, Muslim jurists contended that the prohibition of murder served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property. n65 Limiting the protection of the intellect to the prohibition against the consumption of alcohol, or affording life protection via prohibition of murder is hardly sufﬁcient. At most, these laws are partial protections for a limited conception of values, and in any case, cannot be asserted as the equivalent of individual rights. It is reasonable to conclude that these ﬁve values were emptied of any theoretical social and political content and were reduced to technical legalistic objectives. This does not, of course, preclude the possibility that the basic ﬁve [*89] values could act as a foundation for a systematic theory of a political and social order. To argue that the Sunni juristic tradition did not develop the idea of fundamental or basic individual rights does not mean that that tradition was oblivious to the notion. In fact, the juristic tradition tended to sympathize with individuals who were unjustly executed for their beliefs or those who died ﬁghting an injustice. Jurists typically described such acts as a death of musabara, a term that carries positive or commendable connotations. Muslim jurists produced a formidable discourse condemning the imposition of unjust taxes and the usurpation of private property by the government. n66 Furthermore, the majority of Muslim jurists refused to condemn or criminalize the behavior of rebels who revolt in reaction to an imposition of oppressive taxes, or who resist a tyrannical government. n67 In addition, the juristic tradition articulated a wealth of positions that exhibit a humanitarian or compassionate orientation. I will mention only some of these positions, leaving the rest to a more extensive study. Muslim jurists developed the idea of presumption of innocence in all criminal and civil proceedings, and argued that the accuser always carries the burden of proof (al--bayyina ala man idda'a). n68 In matters related to heresy, Sunni jurists repeatedly argued that it is better to let a thousand unbelievers go free than to wrongfully punish a single Muslim. The same principle was applied to criminal cases. n69 Moreover, many jurists condemned the practice of detaining heterodox groups that advocate their heterodoxy (such as the Khawarij), and argued that such groups may not be harassed or molested until they carry arms and form a clear intent to rebel against the government. n70 Muslim jurists also condemned the use of torture, arguing that the Prophet forbade the use of mithla (the use of mutilations) in all situations, n71 and opposed the use of coerced confessions in all legal and [*90] political - matters. n72 A large number of jurists articulated a doctrine similar to the American exculpatory doctrine - confessions or evidence obtained under coercion are inadmissible at trial. Interestingly, some jurists asserted that a judge who relies on a coerced confession in a criminal conviction is, in turn, liable for the wrongful conviction. Most argued that the defendant or his family may bring an action for compensation against the judge, individually, and against the Caliph and his representatives, generally. n73 One of the most intriguing discourses in the juristic tradition is that which relates to the rights of God and the rights of Page 11 1 UCLA J. Islamic & Near E.L. 67, *90 people. The rights of God (huquq Allah) are rights retained by God as His own, through an explicit designation to that effect. These rights belong to God in the sense that only [*91] God can say how the violation of these rights may be punished and only God has the right to forgive such violations. n74 These rights are, so to speak, subject to the exclusive jurisdiction of God, and human beings have no choice but to follow the explicit and detailed rules that God set out for the handling of His jurisdiction. All rights not retained by God accrue to the beneﬁt of human beings. These are called huquq al- -ibad, huquq al--nas, or huquq al--Adamiyyin. n75 Importantly, while violations of God's rights are forgiven only by God through adequate acts of repentance, the rights of people may be forgiven only by the people. For instance, a right to compensation is retained individually by a human being and may be only forgiven by the aggrieved individual. The government, or even God, does not have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings. Therefore, the Maliki jurist Ibn al--Arabi (d. 543/1148) states: The rights of human beings are not forgiven by God unless the human being concerned forgives them ﬁrst, and the claims for such rights are not dismissed [by God] unless they are dismissed by the person concerned.<elip> The rights of a Muslim cannot be abandoned except by the possessor of the right. Even the imam [ruler] does not have the right to demand [or abandon] such rights. This is because the imam is not empowered to act as the agent for a speciﬁc set of individuals over their speciﬁc rights. Rather, the imam only represents people, generally, over their general and unspeciﬁed rights. n76 In a similar context, the Hanaﬁ jurist al--Ayini (d. 855/1451) argues that the usurper of property, even if a government -zalim), will not be forgiven for his sin, even if he repents a thousand times, unless he returns the [*92] stolen ofﬁcial (al- property. n77 Most of these discussions occur in the context of addressing personal monetary and property rights, but they have not been extended to other civil rights, such as the right to due process or the rights to listen, reﬂect, and study, which may not be abandoned or violated by the government under any circumstances. This is not because the range of the rights of people was narrow -- quite to the contrary, the range of these rights was too broad. It should be recalled that people retain any rights not explicitly reserved by God. Effectively, since the rights retained by God are quite narrow, the rights accumulated by the people are numerous. The Sunni juristic practice has tended to focus on narrow legal claims that may be addressed through the processes of law rather than concentrating on broad theoretical categories that were perceived as non--justiciable before a court. As such, the jurists were inclined to attend to tangible property rights or rights of compensation instead of moral claims. For example, if someone's books are burned by another, that person may seek compensation for destruction of property, but he could not bring an action for injunctive relief preventing the burning of the books in the ﬁrst place. Despite this limitation, the juristic tradition did, in fact, develop a notion of individual claims that are immune from governmental or social limitation or alienation. VI. Constitutionalism and Sunni Islam A number of contemporary Muslim commentators have argued that Islam is fundamentally compatible with a constitutional system. Typically, such commentators produce a laundry list of concepts such as shura, the contract of the Caliphate, the idea of bay'a, and the supremacy of Shari'ah, and then conclude that Islam is compatible with constitutionalism. Some proclaim that the Qur'an is the constitution of Muslims and then rest in the comfort of that assertion. n78 I believe that these types of arguments are for the most part vacuous; they are the product of intellectual restlessness induced by the rather abysmal fortunes of the Islamic heritage in the modern age. As noted earlier, constitutional practice appropriates the values and intellectual heritage that prevails within a society. Although sparks of constitutional thought were deﬁnitely generated in the Islamic intellectual heritage, it would be an exaggeration to claim that constitutional values or normative [*93] orientations are a consistent part of this tradition. But it is these sparks that can be co- -opted in the contemporary age, and developed into full--ﬂedged constitutional visions with potential to contribute to constitutional practices. The core issue deserving of our attention, because of its centrality to the whole conception of government in Islam, is the role of Shari'ah. In many ways, in an Islamic system, sovereignty belongs to the Shari'ah, not the people. Shari'ah represents the Will of God, and as such, the primary objective of the service in which the people and the government must cooperate. The difﬁculty with this concept is that the Shari'ah is a construct of limitless reach and power, so any institution that can attach itself to that construct becomes similarly empowered. Shari'ah is God's Way, as represented by a set of normative principles, methodologies for the production of legal injunctions, and a set of positive legal rules. Page 12 1 UCLA J. Islamic & Near E.L. 67, *93 It is well known that Shari'ah encompasses a variety of schools of thought and approaches, all of which are equally valid and equally orthodox. n79 Nevertheless, Shari'ah as a whole, with all its schools and variant points of view, remains the Way and law of God. It is certainly true that the Shari'ah is capable of imposing limitations on the government and of generating individual rights, and both actions would be considered to be dictated by the Divine Will. Nevertheless, whatever limits are imposed or whatever rights are granted, they may be withdrawn in the same way they are created: through the agency of human interpretation. In other words, the Shari'ah, for the most part, is not explicitly dictated by God. Rather, Shari'ah relies on the interpretive act of the human agent for its production and execution. This creates a double--edged conceptual framework -- on the one hand, Shari'ah could be the source of unwavering and stolid limitations on government and an uncompromising grant of rights, but on the other hand, whatever is granted by God can also be taken away by God. In both cases, one cannot escape the fact that it is human agents who determine the existence, or non--existence, of the limits on government and the grant of individual rights. This is a formidable power that could be yielded, in one way or another, by the human agent who attaches himself or herself to the Shari'ah. To propose secularism as a solution, to avoid the hegemony of Shari'ah and the possibility of an abuse of power is, in my view, unacceptable. There [*94] are several reasons for this. First, given the rhetorical choice between allegiance to the Shari'ah and allegiance to Constitutionalism, most Muslims will make the understandable, equally rhetorical, decision to ally themselves to the Shari'ah. Secondly, secularism has become an unworkable and unhelpful symbolic construct. In the Muslim world, secularism has been normally associated with what is described as the Western intellectual invasion, both in the period of Colonialism and post--Colonialism. Furthermore, secularism has come to symbolize a misguided belief in the probity of rationalism and a sense of hostility to religion as a source of guidance in the public sphere. The third consideration remembers the earlier point that, beyond the issue of symbolism, there is a considerable variation in the practice of secularism. It is entirely unclear to what extent the practice of secularism requires a separation of church and state, especially in light of the fact that there is no institutional church in Islam. Put differently, to what extent does the practice of secularism mandate the exclusion of religion from the public domain, including the exclusion of religion as a source of law? n80 Finally, to the extent that the secular paradigm relies on a belief in the guidance--value of reason as a means for achieving utilitarian fulﬁllment or justice, it is founded on a conviction that is not empirically or morally veriﬁable. One could plausibly believe that religion is an equally valid means of knowing or discovering the means to happiness or justice. n81 The fact that secularism is a word laden with unhelpful connotations in the Islamic context should not blind us to the fact that the discourse of Shari'ah enables human beings to speak in God's name, and effectively empowers human agency with the voice of God. This is a formidable power that is easily abused. Interestingly, although Sunni jurists insisted that the rulers consult with the jurists on all matters, the jurists themselves never demanded the right to rule the Islamic state directly. In fact, Sunni jurists never [*95] assumed direct rule in the political sphere. n82 Throughout Islamic history, the ulama performed a wide range of economic, political, and administrative functions. Most importantly, they acted as mediators in negotiations between the ruling class and the laity. As Afaf Marsot states: "[The ulama] were the purveyors of Islam, the guardians of its tradition, the depository of ancestral wisdom, and the moral tutors of the population." n83 While they legitimated and often explained the rulers to the ruled, the Sunni jurists also used their moral weight to thwart tyrannous measures, and at times led or legitimated rebellions against the ruling classes. n84 As Marsot correctly points out, "to both rulers and ruled they were an objective haven which contending factions could turn to in times of stress." n85 Modernity, however, through a complex dynamic, turned the ulama from "vociferous spokesmen of the masses" into salaried state functionaries that play a primarily conservative, legitimist role for the ruling regimes in the Islamic world. n86 The disintegration of the role of the ulama and their co- -optation by the modern praetorian state, with its hybrid practices of secularism, has undermined the richness, meaningfulness, and effectiveness of Islamic normative determinations. n87 There are a variety of historical and doctrinal explanations for the traditional function of the ulama as mediators and moral educators, and their renouncement [*96] of the role of direct rulers. However, I wish to focus on one aspect of Sunni theology that might contribute to the development of a meaningful discourse on constitutionalism in the Islamic context. As noted above, Muslims developed several legal schools of thought, all of which are equally orthodox. But paradoxically, Shari'ah is the core value that society must serve. The paradox here is exempliﬁed by the fact that there is a pronounced tension between the obligation to live by God's law, and the fact that this law is manifested only through subjective interpretive determinations. Even if there is a uniﬁed realization that a particular positive command does express the Divine law, there is still a vast array of possible subjective executions and applications. This dilemma was resolved somewhat in Islamic discourses by distinguishing between Shari'ah and ﬁqh. Shari'ah, it was argued, is the Divine ideal, Page 13 1 UCLA J. Islamic & Near E.L. 67, *96 positioned as if suspended in mid--air, unaffected and uncorrupted by the vagaries of life. The ﬁqh is the human attempt to - understand and apply the ideal. Therefore, Shari'ah is immutable, immaculate, and ﬂawless - ﬁqh is not. n88 As part of the doctrinal foundations for this discourse, Muslim jurists focused on the tradition attributed to the Prophet stating: "Every mujtahid (jurist who strives to ﬁnd the correct answer) is correct," or "Every mujtahid will be [justly] rewarded." n89 This implied that there could exist more than a [*97] single correct answer to the same exact question. For Sunni jurists, this brought about inquiry into the purpose or the motivation behind the search for the Divine Will. What is the Divine Purpose in setting out indicators to the Divine law and then requiring that human beings engage in a search? If the Divine wants human beings to reach the correct understanding, then how could every interpreter or jurist be correct? The juristic discourse focused on whether or not the Shari'ah had a determinable result or demand in all cases, and if there was such a determinable result, were Muslims obligated to ﬁnd it? Is there a correct legal response to all legal problems? Are Muslims charged with the legal obligation of ﬁnding that response? The overwhelming majority of Muslim jurists agreed that good faith diligence in searching for the Divine Will is sufﬁcient to protect a researcher from liability before God. As long as the reader exercises due diligence in the search, the researcher will neither be held liable nor incur a sin, regardless of the result. On this issue, the jurists were divided into two main camps. The ﬁrst school, known as the mukhatti'ah, argued that ultimately, there is a correct answer to every legal problem. However, only God knows that correct response, and the truth will not be revealed until the Final Day. Human beings, for the most part, cannot conclusively know whether they have found that correct response. In this sense, every mujtahid is correct in trying to ﬁnd the answer, however, one reader might reach the truth while the others might mistake it. On the Final Day, God will inform all readers who was right and who was wrong. Correctness here means that the mujtahid is to be commended for putting in the effort, but it does not imply that all responses are equally valid. [*98] The second school, known as the musawwibah, included prominent jurists such as al--Juwayni, Jalal al- -Din -Suyuti (d. 911/1505), al--Ghazali (d. 505/1111) and Fakhr al--Din al- al- -Razi (d. 606/1210), and it is reported that the Mu'tazilah were followers of this school as well. n90 The musawwibah argued that there is no speciﬁc and correct answer (hukm mu'ayyan) that God wants human beings to discover, in part because if there were a correct answer, God would have made the evidence indicating a Divine rule conclusive and clear. The musawwibah conceded that on a few fundamental and basic matters, God did make the evidence clear and conclusive. As to these few conclusively proven issues, it is, in fact, possible to realize the correct answer. As to most legal issues, the evidence is inconclusive, and therefore, human beings will have diverse and varied interpretations of the law. Human beings will only be able to comprehend and analyze the evidence through their subjective intellectual orientations. But God, the musawwibah argued, cannot charge human beings with the duty to ﬁnd the correct answer when there is no objective means of discovering the correct answer to a textual or legal problem. If there were an objective truth to everything, God would have made such a truth ascertainable in this life. A just God would make the evidence clear and conclusive so that human beings will not be led astray. Legal truth, or correctness, however, depends in most circumstances on belief and evidence, and the validity of a legal rule or act is often contingent upon the rules of recognition that provide for its existence. Rules of recognition are the indicators, or pieces of evidence, that God had set out for human beings to investigate and study. Human beings are not given the responsibility of ﬁnding some abstract or inaccessible legally correct result. Rather, they are charged with the duty to diligently investigate a problem and then comply with the results of their own ijtihad. Al--Juwayni explains this point by asserting, "The most a mujtahid would claim is a preponderance of belief (ghalabat al--zann) and the balancing of the evidence. However, certainty was never claimed by any of them (the early jurists)<elip>. If we were charged with ﬁnding [the truth] we would not have been forgiven for failing to ﬁnd it." n91 According to al- - -Juwayni, God intends for human beings to search - to live a life fully and thoroughly engaged with the Divine. Al- - Juwayni explains: it is as if God has said to [*99] human beings, "My command to My servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My command." n92 God's command to human beings is that they must search diligently, and God's law is suspended until a human being forms a preponderance of belief about the law. At the point where preponderance of belief is formed, God's law accords with the preponderance of belief formed by that particular individual. In summary, if a person honestly and sincerely believes that a particular notion is the law of God, then, with regards to that person, "that" is in fact God's law. n93 The position of the second school (musawwibah) raises difﬁcult questions about the application of the Shari'ah in society. n94 This position implies that God's law is precisely to search for God's law, or the legal charge (taklif) is entirely Page 14 1 UCLA J. Islamic & Near E.L. 67, *99 dependent on the subjectivity and sincerity of belief. On most matters, God does not want human beings to reach speciﬁc conclusions, but wants them to ponder and reﬂect on the available evidence. By searching for and reﬂecting upon the Divine indicators, human beings will live a moral and conscientious life. The ﬁrst school (mukhatti'ah) indicates that whatever law is applied is potentially God's law, but not necessarily so. n95 In my view, this raises an important question as to whether it is possible for any state--enforced law to be God's law. Under the ﬁrst school of thought, whatever law the state applies, that law is only potentially the law of God, but we will not ﬁnd out until the Final Day. Under the second school of thought, any law applied by the state is not the law of God unless the person to which the law applies believes the law to be God's Will and Command. The ﬁrst school [*100] suspends knowledge until we are done living, while the second school hinges knowledge on the validity of the process and ultimate sincerity of belief. Building upon this intellectual heritage, I would suggest Shari'ah ought to stand in an Islamic polity as a symbolic construct for the Divine perfection that is inherently inaccessible by human effort. It is the epitome of justice, goodness, and beauty as conceived by God. Its perfection is preserved in the Mind of God, but anything channeled through human agency is necessarily marred by human imperfection. In other words, Shari'ah as conceived by God is ﬂawless, but as understood by human beings, Shari'ah is imperfect and contingent. Jurists ought to continue exploring the ideal of Shari'ah, and should continue their imperfect attempts at understanding God's perfection. As long as the argument constructed is normative, it is an unfulﬁlled potential for realizing the Divine Will. Signiﬁcantly, any law applied is necessarily a potential as of yet unrealized; it is a speciﬁc application of an ideal, but it is never a fulﬁllment of the ideal. Shari'ah, as it exists in the Mind of God, represents the Divine perfection and immutability; human law, however, is neither perfect nor immutable. Therefore, any legal application or construction cannot represent the perfection of Shari'ah because all human efforts are imperfect. Shari'ah is not simply a collection of ahkam (a set of positive rules) but also a set of principles, methodology, and a process of discourse that searches for the Divine ideals. As such, Shari'ah is a work in progress, never complete. It follows that a juristic argument about what God commands is only potentially God's law, either because in the Final Day we will discover its correctness (the ﬁrst school) or because its correctness is contingent on the sincerity of belief of the person who decides to follow it (the second school). If a legal opinion is adopted and enforced by the state, it cannot be declared God's law. By passing through the determinative and enforcement processes of the state, the legal opinion is no longer simply a potential -- it has become an actual law, applied and enforced. But what has been applied and enforced is not God's law -- it is the state's law. In effect, a religious state law is a contradiction in terms. Either the law belongs to the state or it belongs to God, and as long as the law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God's law. Otherwise, we must be willing to admit that the failure of the law of the state is, in fact, the failure of God's law and, ultimately, God Himself. In Islamic theology, this possibility cannot be entertained. n96 [*101] Institutionally, it is consistent with the Islamic experience that the ulama can and do play the role of interpreters of the Divine Word, custodians of the moral conscience of the community, and curators reminding the nation of and pointing it towards the Ideal that is God. n97 But the law of the state, regardless of its origins or basis, belongs to the state. It bears emphasis that under this conception, there are no religious laws that can or may be enforced by the state. The state may enforce the prevailing subjective commitments of the community (the second school), or it may enforce what the majority believes to be closer to the Divine Ideal (the ﬁrst school). But, it bears emphasis; in either case, what is being enforced is not God's law. All laws articulated and applied in a state are thoroughly human, and should be treated as such. Consequently, any codiﬁcation of Shari'ah law produces a set of laws that are thoroughly and fundamentally human. These laws are a part of Shari'ah law only to the extent that any set of human legal opinions is arguably a part of Shari'ah. A code, even if inspired by Shari'ah, is not Shari'ah -- a code is simply a set of positive commandments that were informed by an ideal but do not represent the ideal. In my view, human legislation or codiﬁcations, regardless of their basis or quality, can never represent the Divine ideal. As to the fundamental rights that often act as the foundation of a constitutional system, a Muslim society must explore the basic values at the very core of the Divine Ideal. It would seem to me that the ﬁve juristic core values of protection for religion, life, intellect, honor, and property are a good starting point. n98 FOOTNOTES: n1. For an overview of the development of constitutionalism in Western Europe, see the classic work Charles Howard McIlwain, Constitutionalism: Ancient and Modern (rev. ed., 1947). For an essay on the difﬁculty of Page 15 1 UCLA J. Islamic & Near E.L. 67, *101 designing constitutional systems, especially in ethnically and culturally divided nations, see Donald L. Horowitz, Constitutional Design: An Oxymoron? in Designing Democratic Institutions 253 (Ian Shapiro & Stephen Macedo eds., 1999). n2. Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 3, 13--14 (Michel Rosenfeld ed., 1994), argues that although a single deﬁnition is not possible, modern constitutionalism does impose certain requirements. Cass R. Sunstein, Designing Democracy: What Constitutions Do 49- -66 (2001), argues that constitutional systems need to adopt what he describes as "incompletely theorized agreements." n3. On the different practices related to limits imposed on government, see Rosenfeld, supra note 2, at 11. n4. Edward Corwin, The Constitution as Instrument and as Symbol, in Corwin on the Constitution 168, 170- -71 (Richard Loss ed., 1981--1988); Sanford Levinson, The Moral Dimension of Constitutional Faith, in Constitutional Faith 54 (1988). There is a vast literature on the conceptual framework of the rule of law. See generally, The Rule of Law (Ian Shapiro ed., 1994); Blandine Kriegel, The State and the Rule of Law (Marc A. LePain & Jeffrey C. Cohen trans., 1995); Luc B. Tremblay, The Rule of Law, Justice, and Interpretation (1997); The Rule of Law (Arthur L. Harding ed., 1961). n5. Corwin, supra note 4, at 169. See also Walter Murphy, The Art of Constitutional Interpretation: A Preliminary Showing, in Essays on the Constitution of the United States 130, 156--58 (M. Judd Harmon ed., 1978). n6. See Murphy, supra note 5, at 156--58, where the author argues that human dignity is the core value of the American Constitution, and implies that it might be the essential value for constitutional systems. n7. In 1992 the Saudi Arabian government adopted what it has called the Basic Laws. According to Article 7, the government of Saudi Arabia is bound by the Qur'an and Sunna (precedent) of the Prophet, and derives its authority from these fundamental sources. The Basic Laws of Saudi Arabia, however, do not qualify as a modern constitution. The Basic Laws guarantee no rights and do not impose any speciﬁc limitations on the power of the -a--vis its citizens. In fact, they seem to grant the state near divine sanctity by making the state the ﬁnal state vis- arbiter of the Divine law. On the Basic Laws and the Saudi legal system see Frank E. Vogel, The Rule of Law in Saudi Arabia: Exploring Contradictions and Traditions, in The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process 128--36 (Eugene Cotran & Mai Yamani eds., 2000); Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia 294 (2000). n8. Rosenfeld, supra note 2, at 20, 27; Murphy, supra note 5, at 134; Cass R. Sunstein, Constitutions and Democracies: An Epilogue, in Constitutionalism and Democracy 327 (Jon Elster & Rune Slagstad eds., 1988). n9. Murphy, supra note 5, at 134. Page 16 1 UCLA J. Islamic & Near E.L. 67, *101 n10. Stephen Holmes, Precommitment and the Paradox of Democracy, in Constitutionalism and Democracy -53, responds to Holmes arguing that 195 (Jon Elster & Rune Slagstad eds., 1988); Sunstein, supra note 8, at 339- constitutionalism can promote or hinder democracy. n11. On a discussion on whether constitutionalism needs natural law see Murphy, supra note 5, at 143--45. -36 n12. Sanford Levinson, The Constitution in American Civil Religion, in Constitutional Faith 9- (1988). Levinson states, "However much traditional religion may have lost its power to structure reality for most Western intellectuals, analogues present themselves in the guise of various civil religions." Id. at 36. Levinson argues that constitutionalism is one of those civil religions. See also Max Lerner, Constitution and Court as Symbols, 46 Yale L.J. 1290--319 (1937); Robert Bellah, Civil Religion in America, in American Civil Religion (Russell E. Richey & Donald G. Jones eds., 1974). n13. Rosenfeld, supra note 2, at 18. Some commentators have argued for a more open acknowledgement of the role of religion in creating the values that constitutionalism appropriates or argued for a re--infusion of religious norms into constitutional practice. See also Robert Lowry Clinton, God and Man in the Law: the Foundations of Anglo- -American Constitutionalism (1997); Graham Walker, Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects (1990). On the religious origins of constitutional thought see Brian Tierney, Religion, Law and the Growth of Constitutional Thought 1150- -1650, (1982). -22 n14. Cass R. Sunstein, Free Markets and Social Justice 203- (1997). n15. Nizam Barakat, Muqaddima ﬁ al- -Islami 119 (1985). On the political thought of Ibn -Fikr al--Siyasi al- Khaldun see Antony Black, The History of Islamic Political Thought: From the Prophet to the Present 165- -82 (2001). n16. See Abu al--Hasan Ali b. Muhammad b. abib al- -21 -Mawardi, al--Ahkam al--Sultaniyyah 19- (1985); al-- Qadi Abu Ya'la Muhammad b. al--Husayn al--Farra, al--Ahkam al--Sultaniyyah 28 (1983); Ann Lambton, State and Government in Medieval Islam: An Introduction to the Study of Islamic Political Theory: The Jurists 19 (1981); W. Montgomery Watt, Islamic Political Thought: The Basic Concepts 102--03 (1968); Hanna Mikhail, Politics and Revelation: Mawardi and After 20--21 (1995); H.A.R. Gibb, Constitutional Organization, in 1 Law in the Middle East, Origin and Development of Islamic Law 3, 9, 12 (Majid Khadduri & Herbert J. Liebesny eds., 1955); Khaled Abou El Fadl, Islamic Law of Rebellion; Muhammad Jalal Sharaf & Ali Abd al- -Mu'ti Muhammad, al- - -Fikr al- -Islami: al- Siyasi ﬁ al--Islam: Shakhsiyyat wa Madhahib 399 (1978); Yusuf Ibish, Nusus al--Fikr al--Siyasi al- - Imamah ind al--Sunnah 55 (Yusuf Ibish ed., 1966). -Shifa ﬁ Mawa'iz al--Muluk wa al--Khulafa 55 (1985); Ibn al-- n17. Abu al--Faraj al--Baghdadi Ibn al--Jawzi, al- -Mustadi 298 (Ibrahim Najiyya ed., 1979). Jawzi, 1 al--Misbah al--Mudi ﬁ al--Khilaf al- -Muluk wa al- n18. Ibn al--Jawzi, al--Shifa ﬁ Mawa'iz al- -Jawzi, 1 al- -Khulafa, supra note 17, at 55, 57; Ibn al- - Misbah al--Mudi ﬁ al--Khilaf al--Mustadi, supra note 17, at 298. Page 17 1 UCLA J. Islamic & Near E.L. 67, *101 n19. Abu Hamid al--Ghazali, Fada'ih al--Batiniyya 191, 193 (Abd al--Rahman Badawi ed., 1964) (author died 505/1111); Sharaf & Muhammad, supra note 16, at 351, 399--403; Ibn al- -Jawzi supra note 17, at 55; Abu Ya'la Muhammad b. al--Husayn al--Farra, al--Mu'tamad ﬁ Usul al--Din, in Nusus al- -Fikr al--Siyasi al--Islami: al--Imamah ind al--Sunnah , supra note 16, at 221 (author died 458/1066); Abu Ya'la Muhammad b. al- -Husayn al- -Farra, supra note 16, at 20; 1 Shams al--Din Abi Abd Allah Muhammad b. Abi Bakr Ibn Qayyim al- -Jawziyya, I'lam al-- Muwaqqi'in an Rabb al--Alamin, 10 (Taha Abd al- -Ra'uf Sa'd ed., n.d.) (author died 751/1350). -Jawzi, n20. So for instance, Ibn al--Jawzi states: "Religion is the origin, and government is its protector." Ibn al- supra note 17, at 46--47. See also Barakat, supra note 15, at 102--03. n21. Structurally, Shari'ah is comprised of the Qur'an, Sunna, and ﬁqh (juristic interpretive efforts). Substantively, the Shari'ah refers to three different matters: (1) general principles of law and morality; (2) methodologies for extracting and formulating the law; and (3) the ahkam, which are the speciﬁc positive rules of law. In the contemporary Muslim world there is a tendency to focus on the ahkam at the expense of the general principles and methodology. It is entirely possible to be Shari'ah- -compliant, in the sense of respecting the ahkam, but to ignore or violate the principles and methodologies of Shari'ah. n22. Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al- -Din al--Qaraﬁ (1996); Sherman Jackson, From Prophetic Actions to Constitutional Theory: A Novel Chapter in Medieval Muslim Jurisprudence, 25 Int'l J. of Middle E. Stud. 71--90 (1993). In addition, there is a considerable juristic discourse on the proper jurisdiction of the police and market inspectors as opposed to judges. In summary, the police and market inspectors have no jurisdiction over any issue that involves competing factual or legal contentions. These issues must be referred to the judge. See generally, Abd al--Rahman b. Nasr al- -Shayzari, Nihayat al--Rutba ﬁ Talab -Hisba 28 n.1 [The Book of the Islamic Market Inspector] (R.P. Buckley trans., 1999); Abu Al- al- -Hasan Ali b. Muhammad b. Habib al--Mawardi, al--Ahkam al--Sultaniyya wa al--Wilayat al--Diniyya 100 (1985). -Dhahabi, Siyar A'lam al- n23. 19 Shams al--Din Muhammad b. Ahmad b. Uthman al- -Nubala 190 (4th ed. 1986). n24. Abu Muhammad Ali b. Sa'id b. Hazm, Jamharat Ansab al--Arab 401 (E. Levi- -Provencal ed., 1948). See also 5 Abu Ja'far Muhammad b. Jarir al--Tabari, Ta'rikh al--Umam wa al- -Muluk 141--42 (1987); 3 Abu al- -Hasan -Kamil ﬁ al- Ali b. Abi al--Karam b. Abd al--Wahid Ibn al--Athir, al- -Fida Abd Allah al- -Ta'rikh 336 (Abu al- -Qadi ed., 1986). n25. Of course, I realize that this claim is quite controversial for Muslims and non--Muslims alike. Nevertheless, I believe that this argument is supported by the fact that the rebellion of the Khawarij took place in the context of an overall search for legitimacy and legality after the death of the Prophet. Furthermore, the research of some scholars on the dogma and symbolism of the early rebellions lends support to this argument. See Hisham Ja'it, al- -Fitnah: Jadaliyyat al--Din wa al--Siyasah ﬁ al--Islam al- -Mubakkir (1989). n26. 7 Muhammad b. Ali b. Muhammad al--Shawkani, Nayl al- -Akhbar 166 (n.d.); 14 -Awtar Sharh Muntaqa al- -Bari bi Sharh Sahih al- Shihab al--Din Ibn Hajar al--Asqalani, Fath al- -Bukhari 303 (1993). Page 18 1 UCLA J. Islamic & Near E.L. 67, *101 -Zulam 15 (Mustafa Hilmi & Fu'ad Ahmad eds., n27. Abu al--Ma'ali al--Juwayni, Ghiyath al--Umam ﬁ Iltiyath al- 1978). -Muwaqqi'in an Rabb al--Alamin 452 (Abd n28. 4 Shams al--Din Abu Bakr Ibn Qayyim al--Jawziyya, I'lam al- -Rahman al--Wakil ed., n.d.). al- -81, 514- n29. Barakat, supra note 15, at 116; Sharaf & Muhammad, supra note 16, at 377, 380- -15; Abu Hamid -Ghazali, al--Iqtisad ﬁ al--I'tiqad 106 (1320 A.H.). al- n30. Ibn Abi al--Rabi was inﬂuenced by Neo--Platonist thought. -Sayyid, al-- n31. Sharaf & Muhammad, supra note 16, at 209, 212; Barakat, supra note 15, at 107; Ridwan al- Ummah wa al--Jama'a wa al--Sultah 207--08 (1984); Ali b. Muhammad al--Mawardi, Adab al- -Dunya wa al--Din -27 116- (Mustafa al--Saqqa ed., 1950). n32. Sharaf & Muhammad, supra note 16, at 213. -37; al- n33. Abu Ya'la, supra note 19, at 196, 199; al--Ghazali, supra note 19, at 135- -Mawardi, supra note 31, at 5. -Imama wa al--Siyasa 21 (al--Zini Taha ed., 1967). This n34. Abd Allah b. Muslim b. Qutayba (attributed), al- book is traditionally known as "Ta'rikh al--Khulafa." -Ahkam al- n35. Ali b. Muhammad al--Mawardi, al- -Sultaniyya 15 (1966). n36. Al--Baghdadi, supra note 17, at 93. n37. See Black, supra note 15, at 154--58, for a discussion of the political thought of Ibn Taymiyya. -Baghdadi trans., 1973). n38. Qamar al--Din Khan, Ibn Taymiyya 102--22 (Mubarak al- n39. Id. at 178. Page 19 1 UCLA J. Islamic & Near E.L. 67, *101 -Siyasi al- n40. Al--Baqillani, al--Tawhid ﬁ al--Radd, in Nusus al--Fikr al- -Imamah ind al- -Islami: al- -Sunnah, -Baqillani (1966) for a discussion of Baqillani's supra note 16, at 56. See Yusuf Ibish, The Political Doctrine of al- political thought. n41. Ibish, supra note 40, at 99. n42. Al--Baqillani, supra note 40, at 76. n43. Lambton, supra note 16, at 19, 37; Watt, supra note 16, at 58. -Hukm 431- (1979). n44. Muhammad Imara, al--Islam wa Falsafat al- -32 -Islami 402 (1979). n45. Fathi Uthman, Min Usul al--Fikr al--Siyasi al- n46. Al--Ghazali, supra note 19, at 177. -51. n47. Al--Mawardi, supra note 31, at 6; al--Juwayni, supra note 27, at 50- -Juwayni, supra note 27, at 49, 50- n48. Al--Mawardi, supra note 31, at 6--7; al- -Baqillani, supra note 40, -51; al- at 49; Uthman, supra note 45, at 407--09; al--Ghazali, supra note 19, at 177; Khan, supra note 38, at 178; Abu Ya'la, supra note 16, at 19. Some jurists added that under all circumstances, the Caliph cannot be the one to appoint ahl al--aqd. See, Abu Ya'la, supra note 19, at 245. -Baqillani, supra note 40, at 48- n49. Al--Juwayni, supra note 27, at 55--57. See also al- -49; Imara, supra note 44, at 439; Abd al--Qadir al--Baghdadi, Kitab Usul al- -Din, in Nusus al--Fikr al- -Islami: al- -Siyasi al- -Imamah ind al-- Sunnah, supra note 16, at 132--33. n50. Imara, supra note 44, at 435. -33; Lambton, supra note 16, at 18. n51. See, e.g., al--Baghdadi, supra note 49, at 132- n52. On the Constitution of Medina, see Frederick Denny, Ummah in the Constitution of Medina, 36 J. of - Near E. Stud. 39--47 (1977); Moshe Gil, The Constitution of Medina: A Reconsideration, 4 Isr. Oriental Stud. 44- 65 (1974); Akira Goto, The Constitution of Medina, 18 Orient: Rep. of the Soc'y for Near E. Stud. in Japan 1-- 17 (1982); Husayn Mu'nis, Dustur Ummat al- -Hukm wa Tabi'atihi wa Ghayatihi inda al-- -Islam: Dirasa ﬁ Usul al- -23 Muslimin (1993); Uri Rubin, The ''Constitution of Medina": Some Notes, 62 Studia Islamica 5- (1986); R.B. Page 20 1 UCLA J. Islamic & Near E.L. 67, *101 Serjeant, The "Constitution of Medina," 8 The Islamic Q. 3--16 (1964); Serjeant, The Sunnah Jami'ah, Pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and Translation of the Documents Comprised in the So-- -42 Called "Constitution of Medina," 61 Bull. of the Sch. of Oriental & Afr. Stud. 1- (1978); Watt, supra note 16, at 130--34. n53. 1 Ibn Qayyim al--Jawziyyah, supra note 19, at 10. n54. Qur'an, 3:159, 42:38. -Fiqh 59 (1981). n55. Abd al--Wahhab Khallaf, Ilm Usul al- n56. Jalal al--Din al--Suyuti, Ta'rikh al--Khulafa 109 (Ibrahim Abu al--Fadl ed., 1976). n57. Id. at 325. n58. Imarah, supra note 44, at 651; Abu Uthman b. Bahr al--Jahiz, Rasa'il al- -Siyasa 396- -Jahiz: Rasa'il al- -97 (1st ed. n.d.). On the role of concept of shura in early Islamic politics, see Ja'it, supra note 25, at 114, 210--13. -Ghazali also argues that a n59. A jurist of the highest ranking capable of deciding de novo issues of law. Al- Caliph need not be a mujtahid as long as he regularly consults the jurists. n60. Al--Ghazali, supra note 19, at 191, 193; Sharaf & Muhammad, supra note 16, at 399--403. On consulting -Husayn al- the jurists, see also Ibn al--Jawzi, supra note 17, at 55; Abu Ya'la Muhammad b. al- -Farra, supra note 19, at 221; see Sharaf & Muhammad, supra note 16, at 351, who discuss the thought of the Seljuq wazir, Nizam al-- Mulk (author died in 485/1092). -403. n61. Al--Ghazali, supra note 19, at 186, 191; Sharaf & Muhammad, supra note 16, at 399- n62. Debates on individual rights raise questions about the nature, foundations, and universality of such rights. The historical discontinuities of individual rights suggest that, despite the absolutist--moral overtones of some -talk, individual rights are the product of complex historical processes. See Legal Rights: Historical and rights- Philosophical Perspectives (Austin Sarat & Thomas R. Kearns eds., 1997); Louis Henkin, The Age of Rights (1990); S.I. Benn & R.S. Peters, The Principles of Political Thought: Social Foundations of the Democratic State -20 101- (Free Press 1966) (1959); Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (1985). n63. For an unpersuasive attempt, see Mohammad Hashim Kamali, Freedom of Expression in Islam (rev. ed., Page 21 1 UCLA J. Islamic & Near E.L. 67, *101 1997). For a more compelling conception of rights in the Islamic tradition see Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism (2001). n64. 1 Abu Hamid Muhammad b. Muhammad al- -Ghazali, al- -87 -Mustasfa min Ilm al--Usul 286- (Ibrahim Muhammad Ramadan ed., n.d.); 5 Fakhr al--Din al--Razi Muhammad b. Umar b. al--Husayn, al- -Mahsul ﬁ Ilm Usul -Fiqh 159--60 (Taha Jabir Fayyad al--Alwani ed., 3d ed. 1997); 2 Abu Ishaq Ibrahim b. Musa al--Shatibi, al-- al- Muwafaqat ﬁ Usul al--Fiqh 7--8 (Abd Allah Daraz & Muhammad Abd Allah Daraz eds., n.d.); Shihab al- -Din Abu -Abbas Ahmad b. Idris al--Qaraﬁ, Sharh Tanqih al--Fusul ﬁ Ikhtisar al- al- -Mahsul ﬁ al--Usul 391 (Taha Abd al--Ra'uf -93 Sa'd ed., 1973); Muhammad Abu Zahrah, Usul al--Fiqh 291- (n.d.); Zaki al- -Din Sha'ban, Usul al- -Islami -Fiqh al- 382 (1965); Wahbah al--Zuhayli, al--Wasit ﬁ Usul al--Fiqh al- -01 -Islami 500- (2d ed. 1969); Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 271--73 (rev. ed. 1991). n65. Muhammad Ubayd Allah al--As'adi, al--Mujaz ﬁ Usul al- -Fiqh 247 (1990); Badran Abu al- -Aynayn Badran, -Fiqh al- Usul al--Fiqh 430--31 (1965); Zakariyya al--Birri, Usul al- -Islami 144--45 (3d ed. 1974); al--Zuhayli, supra note 64, at 498--99; Abu Zahrah, supra note 64, 291--93; Ali Hasab Allah, Usul al--Tashri al- -Islami 260 (3d ed. 1964); Sha'ban, supra note 64, at 382--84; Kamali, supra note 64, at 271--72. n66. See Khaled Abou El Fadl, Tax Farming in Islamic Law (Qibalah and Daman of Kharaj): A Search for a Concept, 31 Islamic Stud. 5--32 (1992). n67. See id. -Ashbah wa al--Naza'ir ﬁ Qawa'id wa Furu Fiqh al--Shaﬁ'iyya 53 n68. Jalal al--Din Abd al--Rahman al--Suyuti, al- (1983); Ali Ahmad al--Nadhwi, al--Qawa'id al--Fiqhiyya 400--01 (3d ed. 1994); Ahmad b. Muhammad al- -Zarqa, -Qawa'id al--Fiqhiyya 369--89 (4th ed. 1996); Subhi Mahmasani, Falsafat al--Tashri ﬁ al--Islam 294 (3d ed. Sharh al- 1961). n69. 14 Ibn Hajr al--Asqalani, supra note 26, at 308; 7 Muhammad b. Ali b. Muhammad al--Shawkani, supra note 26, at 168. -Muqni 168 (1980); Khaled n70. See 9 Abu Ishaq Burhan al--Din b. Muhammad b. Muﬂih, al--Mubdi ﬁ Sharh al- Abou El Fadl, supra note 16. n71. Muslim jurists, however, did not consider the severing of hands or feet as punishment for theft and banditry -Durr al- to be mutilation. 2 Jalal al--Din al--Suyuti, al- -Ma'thur 305--06 (n.d.); 2 Abu al-- -Manthur ﬁ al--Tafsir bi al- Fida al--Haﬁz Ibn Kathir al--Dimashqi, Tafsir al--Qur'an al- -57 -Azim 56- (1990); 2 Abu Bakr Ahmad b. Ali al--Razi -Jassas, Ahkam al--Qur'an 407--08 (1986); 1 Ahmad b. Muhammad al- al- -Sawi, Hashiyat al--Allama al- -Sawi ala -Jalalayn 280 (n.d.); 6 Abu al--Fadl Shihab al--Din al- Tafsir al- -Sayyid Mahmud al- -Ma'ani ﬁ Tafsir al- -Alusi, Ruh al- - Qur'an al--Azim wa al--Sab al--Mathani 121--22 (1985); 5 Abu Ja'far Muhammad b. Jarir al- -Tabari, Jami al--Bayan ﬁ Tafsir al--Qur'an 134--35 (1989); 3 Imad al--Din b. Muhammad al--Taba'i al- -Kiya al--Harasi, Ahkam al--Qur'an 65 (1985); 2 Abu Bakr Muhammad b. Abd Allah b. al--Arabi, Ahkam al--Qur'an 594 (Ali Muhammad al- -Bajawi ed., 1987); 6 Abu Abd Allah Muhammad b. Ahmad al- -Qurtubi, al--Jami li Ahkam al- -Ansari al- -Qur'an 149--50 (1952); Page 22 1 UCLA J. Islamic & Near E.L. 67, *101 1 Abd al--Rahman b. Muhammad b. Makhluf al--Tha'alabi, al--Jawahir al- -Qur'an 459 (n.d.); 1 -Hisan ﬁ Tafsir al- -Din Sa'id b. Hibat Allah al--Rawandi, Fiqh al- Qutb al- -Qur'an 366 (al--Sayyid Ahmad al--Husayni ed., 1405 A.H.); 12 Abu Muhammad Ali b. Ahmad b. Sa'id Ibn Hazm, al--Muhalla bi al- -Ghaffar Sulayman -Athar 285--88 (Abd al- -Bandari ed., n.d.); Khaled Abou El Fadl, supra note 66. al- n72. A considerable number of jurists in Islamic history were persecuted and murdered for holding that a political endorsement (bay'a) obtained under duress is invalid. Muslim jurists described the death of these scholars under such circumstances as a death of musabara. This had become an important discourse because Caliphs were in the habit of either bribing or threatening notables and jurists in order to obtain their bay'a. See Abu Zayd Abd -Rahman b. Muhammad Ibn Khaldun, al- al- -Muqaddima 165 (n.d.); Khaled Abou El Fadl, The Islamic Law of Rebellion: The Rise and Development of the Juristic Discourses on Insurrection, Insurgency and Brigandage 86--87 (1999) (unpublished Ph.D. dissertation, Princeton University) (on ﬁle with the Princeton University Library). On the Islamic law of duress and on coerced confessions and political commitments, see Khaled Abou El Fadl, Law -50 of Duress in Islamic Law and Common Law: A Comparative Study, 30 Islamic Stud. 305- (1991). On political rebellions and the dynamics between jurists and the state see Khaled Abou El Fadl, Rebellion and Political Violence in Islamic Law (2001). n73. Abu Bakr Ahmad b. Amr b. Munir al--Shaybani al- -Qadi 364--65 (Farhat Ziyadah -Khassaf, Kitab Adab al- ed., 1978); 1 Abu Al--Hasan Ali b. Muhammad b. Habib al--Mawardi, Adab al--Qadi 233 (Muhyi Hilal al--Sarhan ed., 1971); Ali b. Muhammad b. Habib al--Mawardi, supra note 35, at 58; 1 Abu al- -Qasim Ali b. Muhammad al-- Rahbi al- -58 -Simnani, Rawdat al--Qudah wa Tariq al--Najah 157- (1984); 6 al- -Fatawa al--Hindiyya 430 (1986); 3 -Haqa'iq Sharh Kanz al- Fakhr al--Din Uthman b. Ali al--Zayla'i, Tabyin al- -Daqa'iq 240 (n.d.). n74. Some modern Muslim commentators tried to equate the rights of God with the idea of public rights. -82 Muhammad Abu--Hassan, Islamic Criminal Law, in Justice and Human Rights in Islamic Law 79, 81- (Gerald E. Lampe ed., 1997); Shaikh Shaukat Hussain, Human Rights in Islam 38--39 (1990); Kamali, supra note 63, at 10. This argument is untenable and it is based on misunderstanding the theory behind the concept of God's rights. For a Muslim critique of God's rights as the equivalent of public rights, see Fazlur Rahman, The Concept of Hadd in Islamic Law, 4 Islamic Stud. 237, 247--49 (1965). n75. Abu Zahra, supra note 64, at 256--58; Bernard G. Weiss, The Spirit of Islamic Law 181--84 (1998); Kamali, supra note 64, at 348--50. n76. 2 Abu Bakr Muhammad b. Abd Allah b. al--Arabi, Ahkam al- -Qur'an 603 (Ali Muhammad al- -Bajawi ed., n.d.); Khaled Abou El Fadl, Conference of the Books 105--08 (2001). See also 6 Abu Abd Allah Muhammad b. Ahmad al--Ansari al--Qurtubi, al--Jami li Ahkam al- -Halim Ibn -Qur'an 103 (1993); Taqi al--Din Ahmad b. Abd al- -Ra'iyyah 65- Taymiyyah, al--Siyasa al--Shar'iyya ﬁ Islah al--Ra'i wa al- -144 (1988); Hasab Allah, supra note 65, at 293--97; Ahmad Farraj Husayn, Usul al--Fiqh al--Islami 405--415 (1986); Lambton, supra note 16, at 19- -20. -Ayini, al- n77. 6 Abu Muhammad Mahmud b. Ahmad al- -Hidayah 482 (1990). -Binayah ﬁ Sharh al- n78. Azizah al--Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or a History of Borrowing? 1 U. Pa. J. Const. L. 492--527 (1999), (arguing that the founding fathers of the United States were Page 23 1 UCLA J. Islamic & Near E.L. 67, *101 inﬂuenced by Islamic constitutionalism partly because some of them had access to Sale's translation of the Qur'an). n79. The four surviving Sunni schools of law and legal thought are the Hanaﬁ, Maliki, Shaﬁ'i, and Hanbali schools. On the history of these schools, as well as those which are now extinct, such as the Tabari and Zahiri schools, see Christopher Melchert, The Formation of the Sunni Schools of Law, 9th--10th Centuries C.E. (1997). On the organization, structure, and curriculum of legal learning, see George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (1981). n80. The literature on the history, theory, and practices of secularism is vast. Most theoretical treatments understandably have remained wedded to the Western historical experience. See Kriegel, supra note 4, at 123--34; Horace M. Kallen, Secularism Is the Will of God: An Essay in the Social Philosophy of Democracy and Religion (1954); Harvey Cox, The Secular City: Secularization and Urbanization in Theological Perspective (1965); The Secular City Debate (Daniel Callahan ed., 1966). n81. See generally Secularization and Spirituality (Christian Duquoc ed., 1969); Seyyed Hossein Nasr, Islam and the Plight of Modern Man (1975); Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993); Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (1993); Timothy L. Fort, Law and Religion (1987); Kent Greenawalt, Private Consciences and Public Reasons (1995); John Finnis, Natural Law and Natural Rights (1980); Milner S. Ball, The Word and the Law (1993). n82. After the evacuation of the French from Egypt in 1801, Umar Makram, with the assistance of the jurists, overthrew the French agent left behind. Instead of assuming power directly, the jurists offered the government to the Egyptianized Albanian Muhammad Ali. See Afaf Lutﬁ al--Sayyid Marsot, The Ulama of Cairo in the Eighteenth and Nineteenth Century, in Scholars, Saints, and Suﬁs, 149, 162--63 (Nikki Keddie ed., 1972). n83. Id. at 149. n84. Id. at 150. For an exhaustive study on the role of the ulama in legitimating rulers and rebellions through the use of their moral weight, see Khaled Abou El Fadl, supra note 16. On the social and political roles played by the ulama, see Edward Mortimer, Faith and Power: The Politics of Islam 299- -307 (1982); Malcolm H. Kerr, Islamic Reform: The Political and Legal Theories of Muhammad Abduh and Rashid Rida 196 (1966); Louis J. Cantori, Religion and Politics in Egypt, in Religion and Politics in The Middle East 77--90 (Michael Curtis ed., 1981). n85. Marsot, supra note 82, at 159. n86. Daniel Crecelius, Egyptian Ulama and Modernization, in Scholars, Saints, and Suﬁs, 167, 168 (Nikki Keddi ed., 1972). Crecelius makes this point about the ulama of Egypt in the modern age. But see Fouad Ajami, In the Pharaoh's Shadow: Religion and Authority in Egypt, in Islam in the Political Process 18 (James Piscatori ed., 1983); Mortimer, supra note 84, at 91, 95; Malise Ruthven, Islam in the World 179 (1984). Of course, there are notable exceptions in the contemporary Islamic practice. Many clerics become prominent opponents of the present Muslim regimes, and suffer enormously for their troubles. Page 24 1 UCLA J. Islamic & Near E.L. 67, *101 n87. On the idea of the praetorian state, see generally Amos Perlmutter, Egypt: The Praetorian State (1974); for a discussion of the poor condition of Islamic law in the modern age, see Khaled Abou El Fadl, Speaking in God's Name: Islamic Law, Authority and Women (2001). n88. I am simplifying this sophisticated doctrine in order to make a point. Muslim jurists engaged in lengthy attempts to differentiate between the two concepts of Shari'ah and ﬁqh. See Mahmasani, supra note 68, at 21- -24, 199--200; Weiss, supra note 75, at 119--21; Abu Zahrah, supra note 64, at 291; Mustafa Zayd, al- -Maslahah ﬁ al- - -Islami wa Najm al--Din al--Tuﬁ 22 (2nd ed. 1964); Yusuf Hamid al--Alim, al- Tashri al- -Maqasid al- -Ammah li al-- Shari'ah al--Islamiyyah 80 (1991); Muhammad b. Ali b. Muhammad al- -Shawkani, Talab al- -Ilm wa Tabaqat al-- -51 Muta'allimin: Adab al--Talab wa Muntaha al--Arab 145- (n.p. 1981). n89. The Arabic is "kull mujtahid musib" and "li kull mujtahid nasib." See 2 Abu al- -Husayn Muhammad b. -72 Ali b. al--Tayyib al--Basri, al--Mu'tamad ﬁ Usul al--Fiqh 370- (1983); 4 Ala al--Din Abd al- -Aziz b. Ahmadi al-- Bukhari, Kashf al--Asrar an Usul Fakhr al--Islam al- -Bazdawi 30--55 (Muhammad al- -Mu'tasim bi Allah al- -Baghdadi ed., 3rd ed. 1997); 2 Abu Hamid al--Ghazali, supra note 64, at 363- -367; Abu al- -Ma'ali Abd al--Malik b. Abd Allah b. Yusuf al--Juwayni, Kitab al--Ijtihad min Kitab al--Talkhis 26--32 (1987); 5 Abu Muhammad Ali b. Ahmad b. Sa'id b. Hazm al--Zahiri, al--Ihkam ﬁ Usul al- -81 -Ahkam 68- (1984); 8 Ibn Hazm, supra note 71, at 589--92; 4 Muhammad b. Ahmad b. Abd al--Aziz b. Ali al--Fatuhi Ibn al--Najjar, Sharh al- -Kawkab al- -Munir al--Musamma Mukhtasar al--Tahrir aw al--Mukhtabar al--Mubtakar Sharh al- -Mukhtasar ﬁ Usul al- -92 -Fiqh, 488- (Muhammad al- - Zuhayli & Nazir Hammad eds., 1993); Abu Bakr Ahmad b. Ali b. Thabit al- -Khatib al--Baghdadi, Kitab al--Faqih wa -Mutafaqqih wa Usul al--Fiqh 245--50 (1977); Abu al- al- -Thana Mahmud b. Zayd al--Lamishi, Kitab ﬁ Usul al--Fiqh -02 201- (Abd al--Majid Turki ed., 1995); al--Qaraﬁ, supra note 64, at 438- -41; 6 Fakhr al--Din al- -Razi, supra note 64, at 29- -36; Muhammad b. Ali b. Muhammad al- -Shawkani, Irshad al- -Fuhul ila Tahqiq al- -Haqq min Ilm al--Usul -89 383- (n.d.); 2 Abu Ishaq Ibrahim b. Ali b. Yusuf al- -Fayruzabadi al--Shirazi, Sharh al- -71 -Lum'ah, 1043- (Abd al-- Majid Turki ed., 1988); Abu Ishaq Ibrahim b. Ali b. Yusuf al- -Fayruzabadi al- -Shirazi, al- -Tabsirah ﬁ Usul al--Fiqh 496- -508 (Muhammad Hasan Haytu ed., 1980). In this context, Muslim jurists also debated a report attributed to the Prophet in which he says, "whoever performs ijtihad and is correct will be rewarded twice and whoever is wrong will be rewarded once." See Jalal al--Din Abd al- -Rahman b. Abi Bakr al--Suyuti, Ikhtilaf al- -Madhahib 38 (Abd al- - Qayyum Muhammad Shaﬁ al--Bastawi ed., 1404 A.H.). Ibn Hazm, al- -Nubadh ﬁ Usul al- -Fiqh al--Zahiri 119--20 (Muhammad Subhi Hasan Hallaq ed., 1993); Abu Al--Hasan Ali b. Umar Ibn al- -Qassar, al- -Muqaddimah ﬁ al--Usul -15 114- (Muhammad b. al--Husayn al--Sulaymani ed., 1996); 4 Mahfuz b. Ahmad b. Al- -Hasan Abu al- -Khattab al-- Kaluzani, al--Tamhid ﬁ Usul al--Fiqh 317--18 (Muhammad b. Ali b. Ibrahim ed., 1985); al--Qaraﬁ, supra note 64, at 440; Abu Abd Allah Muhammad b. Idris al--Shaﬁ'i, al- -Risalah, 494 (Ahmad Muhammad Shakir ed., n.p., n.d.); al-- Shirazi, supra at 499; Muhammad b. Abd al--Hamid al--Asmandi, Badhl al- -Nazar ﬁ al- -03 -Usul 702- (Muhammad Zaki Abd al--Barr ed., 1992). n90. For discussions of the two schools, see, 4 al--Bukhari, supra note 89, at 18; Abu Hamid Muhammad b. Muhammad al--Ghazali, al--Mankhul min Ta'liqat al- -Usul 455 (1980); 2 Abu Hamid Muhammad b. Muhammad -Ghazali, supra note 64, at 550--51; 2 Fakhr al--Din Muhammad b. Umar b. al- al- -Husayn al--Razi, al--Mahsul ﬁ Ilm -Fiqh 500--08 (1988); al--Qaraﬁ, supra note 64, 438; al- Usul al- -Zuhayli, supra note 64, at 638--55; Hasab Allah, supra note 65, at 82--83; Badran, supra note 64, at 474. n91. Al--Juwayni, supra note 89, at 50--51. Page 25 1 UCLA J. Islamic & Near E.L. 67, *101 n92. Al--Juwayni, supra note 89, at 61. n93. 4 Sayf al--Din Abu Al--Hasan Ali b. Abi Ali b. Muhammad al- -Amidi, al- -Ihkam ﬁ Usul al--Ahkam 183 (Abd -Razzaq Aﬁﬁ, ed. 2nd ed. 1402 A.H.); Jamal al- al- -Din Abi Muhammad Abd al- -Rahim b. Al- -Hasan al--Asnawi, al-- Tamhid ﬁ Takhrij al--Furu ala al--Usul, 531--34 (3rd ed. 1984); 3 Muhammad b. Al- -Hasan al--Badakhsi, Sharh al-- Badakhshi Manahij al--Uqul ma'a Sharh al- -Asnawi Nihayat al--Sul 275--81 (1984); 2 Al--Ghazali, supra note 64, at 375- -Thana Mahmud b. Zayd al- -78; al--Juwayni, supra note 89, at 41; Abu al- -Lamishi, Kitab ﬁ Usul al- -Fiqh 202- - 03 (Abd al--Majid Turki ed., 1995); al--Qaraﬁ, supra note 64, at 440; 6 Fakhr al- -Razi, supra note 64, at 34-- -Din al- -50; Sha'ban, supra note 64, at 418--19; Badran, supra note 64, at 474; al- 35, 43- -Zuhayli, supra note 64, at 643. n94. I deal with these two schools of thought more extensively elsewhere. See Khaled Abou El Fadl, Speaking in God's Name: Islamic Law, Authority and Women (2001). n95. I am ignoring in this context the role of ijma (consensus) because of the complexity of the subject. Some modern Muslims have argued that the doctrine of consensus is the normative equivalent of majority rule. I think this is a gross oversimpliﬁcation, and in any case, majority rule, as explained, is not the same as constitutionalism. n96. Contemporary Islamic discourses suffer from a certain amount of hypocrisy in this regard. Often, Muslims confront an existential crisis if the enforced, so--called "Islamic" laws result in social suffering and misery. In order to solve this crisis Muslims will often claim that there has been a failure in the circumstances of implementation. This indulgence in embarrassing apologetics could be avoided if Muslims would abandon the incoherent idea of Shari'ah state law. n97. This proposal is nonsensical unless the ulama regain their institutional and moral independence. n98. It follows from my discussion that even the core values are not Divine values but human values. Furthermore, I would argue that the protection of religion would have to mean protecting the freedom of religious belief; the protection of life would mean that the taking of life must be for just cause and the result of a just process; the protection of the intellect would have to mean the ﬁght to free thinking, expression and belief; the protection of honor would have to mean the protecting of the dignity of a human being; and the protection of property would be the right to compensation for the taking of property.
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