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CONSTITUTIONALISM AND THE ISLAMIC SUNNI LEGACY

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                                            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
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                                           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
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                                           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
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                                           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.
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                                         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
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                                          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.
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                                          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-
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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
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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
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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
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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.
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    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,
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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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