The Death of Islamic Law

"38 Georgia Journal of International and Comparative Law 293 (2010)That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari'a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari'a in the affairs of the state is obvious to anyone even faintly familiar with the region. However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all matters of state and law, is no more enthused than anyone else in permitting God's Law to retain any real level of supremacy over the law of the state. Yet this is amply demonstrated by the Islamist obsession with seizing state control and enacting, selectively, shari'a as state law, rather than attempting the type of complete law overhaul that would be necessary to ensure the permanent primacy of the shari'a. The selectivity, while puzzling to one in search of logic in the law, provides in fact much guidance to precisely why the Islamist has chosen this road of incoherence, demanding that the law of man lie subservient to the Will of God on the one hand, and then gleefully ignoring the necessary consequences of taking such a notion seriously on the other. The fact is that while the Islamist may say that he wishes God's Law to be supreme over that of man, there is nothing in his actions to suggest that this rhetoric, however sincerely held, is an accurate reflection of his actual aims. The Islamist does not want God's Law to reign supreme in areas such as corporate law and the law of business entities, where the economic consequences might be dire. On the other end lies the law of the family, where God's Law is deemed a vital necessity, and any development, any evolution, any alteration of the rules established centuries ago when caliphs walked the earth will meet with red-faced Islamist indignation at the suggestion of such outrageous sacrilege. With the power of lawmaking safely in the hands of the state, the Islamist need only bring sharia where he wishes it, and leave all other, largely transplanted, law, where it lies, which is to say in as authoritative a position as any shari'a derived enactment by the state. The wide scale adoption of secular, transplanted law and secular legal systems and their continuation in force even in the most thoroughly Islamized societies is not a matter very thoroughly discussed by our academy, except to the extent that it is asserted as largely irrelevant to the reestablishment of a true "Islamic state" where some form of shari'a does indeed reign supreme. Thus, much scholarly attention has been focused on the "repugnancy clauses" in various Muslim state constitutions, which prohibit the enactment of laws that are repugnant to the shari'a. The focus on such clauses is striking, and portentous phrases on their importance are rife in our scholarship, among them "the Rise of the Islamic State," "theocratic constitutionalism," and "Islamic constitutionalism." On repugnancy, I offer only two points. First, to the extent that an “Islamic state†can be formed under such a conception, it only seems to confirm how fundamentally limited the role of shari'a has become in the "Islamic state." Secondly, no theory of repugnancy has been coherently laid out, let alone applied, in any Muslim state. Muslim states, and Islamist movements, are far too invested in their development to call for anything less than a selective application of shari'a, with the only real difference between the Islamist, the moderate and the secularist being precisely how much to select. Logic and coherence, in the end, has been forced to give way to the hard realities of our times, which cannot afford to Divinity the primary role in the making of law."