The Fall and Rise of the Islamic State by Noah Feldman
An Islamic state is a government that upholds Islamic law (Sharia) and whose mandate is explicitly religious in nature. Islamic states existed continuously from the 7th century up until the fall of the Ottoman Empire after World War I, making them one of humanity’s longest-lived systems of government.
Only a small fraction of the Sharia comes from the Quran, with most coming from the hadith, reasoning by analogy, and scholarly consensus. Sharia law is very detailed on some matters (especially family matters like marriage, divorce, and inheritance) while saying little about others.
How traditional Islamic states worked
The defining characteristic of classical Islamic states was the existence of an independent and self-governing class of trained Islamic scholars. The job of the scholars was to study, discover, and interpret the divine law, as well as apply it to worldly situations when needed. Some of the scholars worked for the government as Sharia judges, while others operated independently. The scholars collectively held total discretion over the content and interpretation of the Sharia.
The Sharia gave rulers their legitimacy. In return, rulers were required to uphold the Sharia and operate within its constraints. Governments were allowed to issue administrative regulations and customary law was allowed to coexist alongside Sharia. However, Sharia was the highest law and could not be directly contradicted. Rulers who failed to enforce or obey the Sharia would be widely understood to have lost their right to rule and would open themselves up to leadership challengers.
Rulers and scholars had a relationship that was complex and nuanced, but ultimately balanced and enduring. The ruler and the scholars were separate power centers in the government, with the ruler best understood as running the executive branch and the scholars acting as both the legislature and the judiciary. On paper, the scholars claimed that they had the right to pick the ruler themselves, though in practice all the old caliphates were monarchies in which the ruler handpicked his preferred successor. The ruler could appoint scholars to his Sharia courts as well as fire them; however, strategically hiring specific individuals in the hope of getting favorable rulings was difficult because scholars inside the government regularly consulted scholars outside of it. Having the public support and endorsement of the scholars was useful to rulers in fending off leadership challenges and in mobilizing public support. The scholars never openly declared a sitting ruler to be illegitimate because they lacked the brute force to follow through on their declaration. A more typical pattern was that the scholars would stay silent during a crisis, wait for the palace coup they were tacitly inviting, and enthusiastically pledge loyalty to the ruler’s successor once the dust settled. The scholars themselves were politically accountable to no one, but they were held in check by institutional self-interest, sincere religious piety, and an internal culture that respected precedent.
In a world otherwise dominated by strongman monarchs, Islamic states had something resembling a permanent constitution, universal rule of law, an independent judiciary, and a rich body of case law. For the most part, Islamic governments raised revenues through lawful taxes rather than arbitrary extortion, didn’t weaponize criminal law as a tool of public terror, and did an effective job of resolving common citizen disputes through the courts.
The unraveling of the old order
In the 19th century, the Ottoman Empire, the last traditional Islamic state, faced the pressures of modernity. Much like Europe’s nation-states, the Ottoman Empire needed a more internally-specialized bureaucracy, a larger and more complex code of laws, and a more scalable court system. The Ottoman Empire enacted a variety of well-intentioned reforms, many of them Western-inspired, that inadvertently eroded the traditional balance of power.
Sharia courts became more institutionalized and hierarchical - appellate-level judge positions became very powerful, making them vulnerable to strategic hiring by the Sultan. The body of civil law continued to grow while the Sharia did not; Sharia judges were increasingly relegated to administering family law while a new class of secular judges handled the weighty issues of the day. The Sharia was finally codified into a set of actionable rules for scholar judges to follow, reducing much of their discretion over cases.
In many ways, the codification of the Sharia was its downfall. The state was now the keeper of the law rather than the scholars. In a major symbolic inversion, the Sharia was now the product of the state rather than the other way around.
Without the scholars and without the Sharia, the Ottoman Empire faced a familiar circular question: how does the government lawfully legitimize itself when the government has a total monopoly over the law? In Europe, the most common way to resolve this question was to vest popular sovereignty with the people; throughout the 19th century, elected legislatures slowly gained power at the expense of old monarchies. Something similar could have happened in the Ottoman Empire and led to a slow democratization process there, but its 1876 constitution proved fatally flawed.
The 1876 Ottoman constitution added a legislature for the first time, though such a new institution was bound to be weak and immature at first. Perhaps complacent about the benevolence of monarchs given past Ottoman history, the constitution gave the Sultan significant political power, including his right to appoint all the members of one of the two legislative chambers (the other was elected). Now that the Sultan was a constitutionally-defined role, he was safe from the precarity of tenure that had characterized the lives of past Sultans who were dependent on the scholars.
In a move that has haunted the Muslim world ever since, Sultan Abdulhamid II suspended the legislature and never convened it again. The legislature was inoperational, the courts were subservient to him, and the scholars couldn’t mount a religious challenge against him because his executive privileges now came from the constitution rather than the Sharia. Abdulhamid II ruled as an absolute monarch for three decades, a period characterized by defeats in war, a government debt crisis, and genocides against peripheral ethnic groups. The Ottoman Empire went throught a multi-decade period of decline that ended in its fragmentation.
The Islamic world today
No country today claims itself to be the religious successor of the Ottoman Empire or one of the caliphates before it. No head of state today claims the title of Caliph. Islamic legal scholarship is an empty shell of what it once was.
The closest thing the world has to a traditional Islamic state is Saudi Arabia, but it has several major distortions. Like a traditional Islamic state, Saudi Arabia is a monarchy with no written constitution and no legislature, with the rulers legitimizing themselves by deferring to the religious opinions of scholars. The House of Saud and the Wahhabi scholars have a cynical alliance that pre-dates the current regime, so the scholars cannot be considered an independent power center. The local interpretation of the Sharia is unusually conservative and repressive by Islamic historical standards, a product of the Arabian plateau’s centuries of cultural isolation. The government is rich enough from oil that it does not need to tax its citizens, which affords it the ability to be unresponsive to the people and to the needs of the private sector.
In the post-Ottoman world, all the governments have non-Islamic structures. Though most Muslim-majority states give Islam a privileged status as the state religion and have a Sharia-inspired family law code, they are otherwise secular states. Like the last decades of Ottoman rule, the post-Ottoman world is highly authoritarian, characterized by overpowered executives who operate outside the law and have minimal legislative or judicial checks on their power. The scholars are gone from politics and no other source of restraint has arisen in their place.
The only country to have meaningfully bucked the trend is Iran, where a revolution led by scholars overthrew a secular Western-backed dictatorship. In Iran’s post-revolution setup, the scholars directly hold the position of the traditional Islamic ruler and one scholar (Iran’s supreme leader) is elevated above all his peers; both aspects of this arrangement are unprecedented. Iran’s structure has minimal checks on the power of the scholars (scholarly consensus has long held that scholarly consensus is infallible) and the regime has been tyrannical from the start.
The new Islamism: Sharia without scholars
Throughout the 20th century and continuing into the 21st, the Muslim world has seen an Islamist movement that seeks to restore Sharia law as well increase the role of religion in public life. In most of the authoritarian regimes of the Muslim world, Islamists are the only well-organized opposition.
Most Westerners want to see the Muslim world undergo democratization, but then get uncomfortable when democratization almost always entails Islamists making political gains. The popularity of Sharia law is befuddling to outsiders, especially given that Sharia is full of provisions unpopular even among Muslims. The appeal of Sharia is mostly symbolic and nostalgic; Sharia symbolizes rule of law, universal justice, legitimate rulers, restrained government, national unity, spiritual renewal, the abandonment of failed institutions, and the end of Western domination.
Islamists are not proposing to emulate the Ottoman model, the Saudi Arabian model, or the Iranian model, but are proposing something altogether different. Islamists are pro-Sharia but also don’t want to bring back the political scholarly class, even though the two have historically been inseparable. Giving scholars political power solely based on their professional background runs counter to modern democratic sensibilities. Now that literacy is widespread, so too is the belief that anyone has the right to read and make conclusions about scripture. The lived experiences of Saudi Arabia and Iran have significantly tarnished the reputation of Islamic scholars in the rest of the world.
Islamists want to reconcile Sharia with modern political states. They internally lack consensus on a wide set of basic fundamental questions, such as which interpretations of Sharia to use, whether Sharia should be the sole source of law or just one source among many, how to handle the subjects where Sharia has little to say, how to reconcile cases where Sharia runs counter to the popular will, how strict or loose judicial review of laws should be, how to handle the inevitable politics of judicial appointments, and whether to work within the existing political system or replace it. Islam as a whole is in the midst of a decentralization and deinstitutionalization, which has made authoritative opinions hard to find and consensus hard to attain. There are many serious reasons to doubt that any Islamist movement is capable of governing coherently. Islamist political parties hide their internal problems by campaigning on vague platforms of justice and anticorruption. Since Islamists seldom attain meaningful power and since they face intense opposition when they do, their dream is never fulfilled, but it also never dies.
The classical Islamic State is a setup that no one today would propose creating from scratch; there is no going back to a world of monarchs, scholars, and unwritten laws. Classical Islamic States were one of the world’s most effective and responsive systems of government for centuries, but they also left the Muslim world unprepared for a world without them. The Muslim world needs institutions that can replace the old role of the scholars by keeping the executive branch in check and placating citizens who might otherwise try putting the divine law in their own hands. The post-invasion constitutions of Iraq and Afghanistan offer examples of how this might work given a clean slate. Both constitutions establish Sharia as a source of law, define powerful elected legislatures, and give judges the right to do judicial review of laws. Legislatures and judiciaries take a long time to mature as institutions, so the road ahead is a long one.