From the June 2008 Commentary magazine
June 13, 2008
by Paul Marshall
The Fall and Rise of the Islamic State
by Noah Feldman
Princeton. 200 pp. $22.95.
Noah Feldman is an interesting case. A professor of law at Harvard, he was raised as an Orthodox Jew and chose to become a scholar of Arabic and a student of Islam; in 2003, he served very briefly as a legal adviser to the American occupation force in Iraq. He also cuts a glamorous figure, having been the subject of a photo spread in Men's Vogue and declared America's "Most Beautiful Brainiac" by New York magazine.
With all the hoopla surrounding him, one might forget that Feldman wishes to be taken seriously as an interpreter both of legal theory and of Islamic thought. He brings the two together in The Fall and Rise of the Islamic State. This book makes the provocative and counterintuitive argument that the West and the world may have nothing to fear, and even something to gain, if Muslim nations were to become "Islamic states"—by which Feldman means states governed not by Islamist dictators but by Islamic law, or shari'a.
The key, according to Feldman, is Islam's traditional version of the separation of powers. In the centuries following the religion's inception in the 7th century, and despite a record of uncertain political successions and changing regimes, the Islamic state was governed, he writes, by "the most liberal and humane legal principles available anywhere in the world." This was possible because the Islamic state had an "unwritten constitution": a body of law that existed separate and apart from the power wielded by the ruler. Moreover, this law was administered and interpreted by independent scholars, thus creating a restraint on the executive in the person of the sultan or caliph.
The rule of shari'a, in Feldman's account, provided legal stability and predictability. Property was protected, wealth was secured, trade was extended. And this, in turn, supplied a stable foundation for political strength and military success.
As Feldman tells it, the balance between the executive and the scholars lasted until the 19th century, when it ultimately collapsed as the crumbling Ottoman Empire undertook to modernize itself in order to combat growing Western power. In the process, Ottoman rulers codified shari'a so that it could be implemented by state judges and bureaucrats, and established a legislature to pass laws embodying Islamic principles.
Although this development might appear to have marked an advance in the rule of law, in Feldman's reckoning it had the unfortunate effect of sidelining the scholars who for over a millennium had been the law's chief protectors and defenders. And when the Ottoman legislature was abolished, custodianship of the law passed into the almost exclusive prerogative of the sultan and his functionaries. With the dislocation of the scholars, executive power now ran unchecked, a development that would lead to the centralized, executive-led regimes dominating the Muslim world and especially its Arab heartland today.
Seen in this light, Feldman explains, the 1979 Iranian revolution led by the Ayatollah Khomeini was actually an attempt to restore the rule of law as it had once been understood in the Islamic world. But Khomeini took things a step too far. His regime established a radically new system, the velayat-e faqih, in which scholars not only reclaimed their old status but seized executive power as well.
Elsewhere in today's Muslim world, secular tyranny faces major opposition from Islamist movements, notably the Muslim Brotherhood and its offshoots. For these movements, too, the restoration of shari'a is a central tenet, though with a modern twist. Usually they profess a desire for an "Islamic democracy," by which they mean a system where voters and legislatures will shape the Islamic state and courts will practice "Islamic judicial review" to ensure conformity with shari'a.
In essence, then, Feldman is suggesting that the same Islamist forces usually regarded by the West as wellsprings of extremism can actually prove to be a bulwark against autocracy, creating institutions that will impose checks and balances on the monopoly of the executive. Indeed, they might constitute the best hope for the rule of law in Muslim lands, with happy portents for an accommodation with the rest of the world.
It is refreshing to read an analysis of the Middle East that focuses on the inner workings of peoples, nations, and faith traditions and does not attribute all of the region's ills to imperialism or other forms of Western influence. Feldman can also be an illuminating analyst, as on the subject of the marginalization of legal scholars and its consequences for the development of despotisms with an Islamic face.
But the failings of this book are so perverse that they vastly outweigh its virtues.
Feldman's thesis depends on a heavily scrubbed and buffed depiction of shari'a. He conspicuously does not address its dual hierarchical structure, specifying separate and highly unequal rights for men and women, Muslims and non-Muslims, the Islamic realm and the rest of the world. It is true that such distinctions were characteristic of many older legal codes, including some Western ones; but that is no argument for re-establishing them in the 21st century. Nor does Feldman mention the shari'a-based demand that critics of Islam, either within or without, be killed as blasphemers or apostates, a demand now reappearing in the form of "blasphemy laws" aimed directly at present-day Muslims who are attempting the intellectually difficult and rigorous exercise of reconciling Islam with modernity.
Even worse, and no less conspicuously, The Fall and Rise of the Islamic State omits any proper accounting of the self-described Islamic states that do actually exist in the world today. The most galling case is no doubt that of Saudi Arabia, a country that in fact features a counterbalance of scholars and rulers, and therefore, one imagines, could be regarded both as an incarnation of the older arrangements that Feldman values and as a model of what he looks forward to.
But Saudi Arabia is also, of course, one of the most repressive regimes the world has ever seen. And so, in his role as the defender of the ideal Islamic state, Feldman simply gives it the back of his hand. It is, he says, merely a "fascinating anomaly."
And what of the Islamic Republic of Iran, the subject of Feldman's earlier book, After Jihad? Despite Islam's alleged respect for religious minorities, Iran is now considering legislation that would make the profession of the Baha'i faith—the largest minority religion in Iran—punishable by death. Perhaps not surprisingly, Feldman declares Iran, too, an improper and unrepresentative example of an Islamic state, in this case for the professed reason that its rule-by-scholars regime is a radical departure from his preferred criterion.
And so it goes. Whatever does not conform to Feldman's view of a genuine "Islamic state" is simply dismissed. Perhaps, he ruminates wistfully, had America not encouraged Ethiopia to invade Somalia, the latter's Islamic Courts Union might have evolved into what he envisions. But no such luck. In Afghanistan, the Taliban took a serious stab at imposing shari'a, but their tenure can be discounted because it lacked a balancing cadre of scholars.
And then there is Sudan, which declared itself under shari'a rule in 1983. Within a year, in Khartoum province alone, the regime had carried out 58 public amputations, twelve of them "cross limb" (taking a hand and a foot from opposite sides of the body). Most of the victims were poor Christians. Public floggings were broadcast daily on national television, and public hangings, followed by crucifixion, were held at sites especially constructed for the purpose. In subsequent years, as all the world knows, the Khartoum government has made a specialty of genocide.
How, then, does this nightmarish nation fit into the Feldman thesis? The word "Sudan" appears nowhere at all in The Fall and Rise of the Islamic State.
A similarly deceptive pattern characterizes Feldman's attempt to gauge future Islamist intentions. Declaring Islamism to be "fiercely egalitarian," he cites a draft platform of the Egyptian Muslim Brotherhood party that affirms the equality of all citizens before the law and rejects discrimination based on religion, race, or ethnic origin. Inconveniently, however, a footnote elsewhere in the book cites another Brotherhood document stating the organization's commitment to achieving its goals
through building the Muslim individual, Muslim family, Muslim government, and the Muslim state that leads Islamic countries, gathers all Muslims, regains Islamic glory, gives lost Muslim land back to its owners, and carries the flag of the call to Allah, thus making the world happy via the teachings and right of Islam.
Even apart from the "call" for a universal Muslim state—which would not only require the conversion of the entire world but result in the annexation of Israel, Spain, southern Italy, the Balkans, southern Russia, and other large chunks of Europe—such sentiments are difficult to reconcile with Feldman's confident belief that the Muslim Brotherhood, once in power, would not discriminate on the basis of religion. Here as elsewhere, though, he never allows actual Islamist behavior to obscure his vision of the true "Islamic state," an alluring construct permanently beckoning in the misty past and the mistier future.
Noah Feldman is an undeniably able writer, and skilled at analyzing texts. Conceivably he could play a useful role in our understanding of contemporary Islam. In order to do so, however, our nation's Most Beautiful Brainiac would have to transcend a profoundly regrettable tendency toward intellectual distortion.
Paul Marshall is a Senior Fellow with Hudson Institute's Center for Religious Freedom.
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