"Rule of Law" in Old Islam
John H. McCloskey
16 September 2002
Begin with a few sentences from Prof. Majid Khadduri:
(1) It is ... the Law, embodying the principles of Divine authority,
which indeed rules, and therefore the state becomes not, strictly a
theocracy, but a form of *nomocracy*. The Islamic State, whose
constitution and source of authority is a Divine Law, might be called
a Divine nomocracy.
(2) Qur’an ... and Sunna ... provided the raw material on the
basis of which of which the scholars, through the use of a third
"derivative source" of human reasoning called ijtihad, laid down the
Law and the Creed.[6] The fundamental principles of the Law and the
Creed, and the creative works of succeeding generations, formed the
foundation of the renowned Islamic public order.
(3) The principles and maxims derived from the Revelation [= Qur'ān]
and the Divine Wisdom [= Sunna] were considered infallible and
inviolable, designed for all time and potentially capable of
application to all men. In principle, the Law laid down by the Divine
Legislator is an ideal and perfect system. But .....
... but let us leave Prof. Khadduri at that point, since the book he
was introducing was not going to be about Divine Law at all, but only
about _The Islamic Conception of Justice_ (Baltimore, 1984). The
above passages are all on pages 3 and 4, although the first one quoted
originally came last. I put it up front because "rule of law"
(abbreviated ROL hereinafter) is the announced topic, and there ROL
stands, in Greek at least, with *emphasis* added.
MK's note [6] is of some importance, since it refers to the _Risāla_
of Shāfi`ī, and not entirely because Khadduri happens to have
translated that work into English[*]. The reference makes clearer
where passage (2) is coming from, i.e., specifically from the
direction of _'usūl al-fiqh_, an Islamic science whose name is usually
rendered something like "principles of law" or "of jurisprudence," and
which Shāfi`ī's treatise is often said to be the foundation of. The
note explains that Khadduri's "ijtihad" comprises both "analogy"
_qiyās_ and "consensus" _'ijmā`_ in his original. "Derivative source"
perhaps sounds like complete nonsense: the meaning is that _ijtihād_
doesn't come into play except when Qur'ān and Sunna do not make legal
matters clear.
The point of my going on about this is that the "principles and
maxims" spoken of are not whatever generalities one might infer from
examining Islamic law for oneself at the present day, but a specific
set of inferences the medieval Muslims actually did draw and canonize.
That particular set of inferences is what "embodying the principles
of Divine authority" and "designed for all time" and "ideal and
perfect system" and the rest of it refer to. In fact, that is what
Khadduri's "divine nomocracy" nominally hands universal empire over
to. In Old Islam, "rule of law" would have meant (had they talked
with that particular cliché), the rule of _'usūl_ theoretically, and
of course in practice the rule of _'usūl_ experts wouldn't have been
far off. Something of that sort perhaps actually exists in
present-day Iran, but the formerly existing "renowned Islamic public
order" which MK means was rather different from anything Khomeini
established or intended to establish.
When we parted with Prof Khadduri at that "but....," he was about to
make a couple of obvious points about how the theory of it remained
fixed but the application varied and, more important for this
discussion, how in fact Law can't ever really rule, only reign.
"There is always an oligarchy somewhere," or at least some sort of
Executive Branch. The locus of that oligarchy in the renowned Islamic
public order (the Old Sunni Islam which Ghazali put the final
foundational touches to around 1100 and which prevailed until about a
century ago when various neo-Islams started sprouting) is a
fascinating question. In the mostly political sense which MK's book
is mostly about, it is very clear that the _rulers_ ruled -- not any
kind of legal experts, only plain old-fashioned rulerly kind of
rulers, men of action with an army and a dynasty and a tax-gathering
bureaucracy behind them. Fancy Tamerlane a "nomocrat"!
Not just monsters like Tamerlane. Suleiman of Osman is "the
Magnificent" only to Westerners, to his own subjects he was "the
Lawgiver" -- but the kind of "law" he gave them is not at all what the
above quotations are talking about. Not _sharī`a_, only _qānūn_. If
he was a nomocrat, he was an undivine one. But obviously Suleiman
wasn't any kind of nomocrat at all, he was much more like the perfect
embodiment of _quod placuit principi, legis habet vigorem _ (as
Aquinas
<< http://www.unav.es/filosofia/alarcon/amicis/sth2090.html >> (cf.
90.1)
has the formula, ultimately from the lawyers of Justinian and
Theodosius -- not that that is likely to be where the Ottomans got it
from).[**]
...
Happy days.
--JHM
[*] Parts of the translation appear, probably in violation of
copyright, at
<< http://www.islaam.com/Article.asp?id=205 >>
and thereabouts.
[**] Aquinas, to be sure, mentions the slogan in an objection to his
own view that law is something rational: _Praeterea, lex movet eos qui
subiiciuntur legi, ad recte agendum. Sed movere ad agendum proprie
pertinet ad voluntatem, ut patet ex praemissis. Ergo lex non pertinet
ad rationem, sed magis ad voluntatem, secundum quod etiam iurisperitus
dicit, quod placuit principi, legis habet vigorem_.
The textbook answer runs, _Ad tertium dicendum quod ratio habet vim
movendi a voluntate, ut supra dictum est, ex hoc enim quod aliquis
vult finem, ratio imperat de his quae sunt ad finem. Sed voluntas de
his quae imperantur, ad hoc quod legis rationem habeat, oportet quod
sit aliqua ratione regulata. Et hoc modo intelligitur quod voluntas
principis habet vigorem legis, alioquin voluntas principis magis esset
iniquitas quam lex_.
That seems quite pertinent to Suleiman's case, since _qānūn_ at very
least is _aliquā ratione regulata_. What pleases a "canonocrat" Prince
will no doubt be reasonable and orderly and consistent and so on. But
with _sharī`a_ all that has nothing much to do, except in the sense
that _shari`a_ has to do with everything whatsoever that humans
deliberately think and do.