The Fall and Rise of the Islamic State - A Review

Feldman, Noah. The Fall and Rise of the Islamic State. Princeton and Oxford: Princeton University Press, 2008. A Council on Foreign Relations Book. 189 pages. Acknowledgments. Notes. Index $22.95. ISBN: 978-0-691-12045-4.

Since September 11, 2011, a lot of attention has been paid to Islamic states, states that claim to be Islamic, states in which Shari ‘a law is in force, states in which the law must not conflict with Shari ‘a law, and the manner in which Shari ‘a law has been enforced in Afghanistan, Pakistan, Sudan, and northern Nigeria. Published materials on these topics reveal a lot of confusion, or at least a lack of clarity, about what Shari ‘a law is and what an Islamic state might actually be. Noah Feldman, professor at Harvard Law School, has done all of us interested in the Middle East and the broader Muslim world a real service by explaining the history and nature of the Islamic state, as well as the choices facing Islamists today. This is a very short book; if you leave out the Index and other impedimenta there are fewer than 150 pages of text. It is not necessarily a fast read, though, as it will provide lots of food for thought.

The Fall and Rise of the Islamic State was reviewed in Commentary, June 2008, by Paul Marshall. Marshall was not impressed by Feldman’s contention that the Muslim world (and, by extension, the rest of us) would be better off if the current crop of dictators and monarchs was replaced by states subject to Shari ‘a law. Marshall points to Saudi Arabia and Iran as current cases in which Islamic states are repressive and intolerant. But Marshall’s main objection to the book is that Feldman fails to address such issues as the unequal status (what Marshall refers to as the “dual hierarchy”) of men and women in Islamic law.

I think that criticism, while germane to whether one wants to accept Feldman’s policy recommendations, misses the mark. Feldman doesn’t really address the content of Islamic law at all. His evaluation of Shari ‘a is based on its success, over a period of one thousand years, of securing property rights, establishing a level of predictability for government actions, and limiting arbitrary and inconsistent acts of Islamic rulers. In effect, and I think Feldman is clear about this, his point is that Shari ‘a law, and the scholars who interpreted and enunciated it, functioned as law is supposed to function in any society, reducing the incidence of arbitrary and unpredictable actions, without regard to the merits of any particular law.

In other words, and this is where a lot of conservatives would part company with Feldman, The Fall and Rise of the Islamic State is a thoroughly relativist book, looking to universal principles only at the highest, most abstract level. This takes me back to Thomas Hobbes and his contention in Leviathan that justice meant property. The basic principle Feldman is advocating here is that of checks and balances. Arbitrary power, whether executive, legislative, or judicial is a bad thing and is to be avoided. In the Muslim world, with the partial exception of Turkey, legislatures and judges are inadequate checks on the executive, where they have the temerity to attempt to act against its wishes at all.

If you look at some of the other books I’ve reviewed here in recent months, you’ll see many examples of the unchecked executive at work in the Arab and Muslim world. Algeria: Anger of the Dispossessed is all about the abuses an arbitrary executive may countenance. Some of these books contain examples from the United States, in which the Bush administration (and sometimes its predecessors) has exploited the weakness of congressional and judicial oversight to abuse the rights of citizens and residents, and to carry on undeclared warfare around the world.

On the other hand, Walter Russell Mead’s God and Gold points out that the success of the Anglo-American model of sea power and commerce for the past 400 years has been based upon balance. The executive is checked by the legislature, and both by the courts. No one religion is so dominant as to maintain itself as the established church. No one tendency within religion is so dominant as to stultify innovation. I have suggested elsewhere that the Muslim world may have been handicapped in its development by the weakness of the powers of reason compared to scripture and tradition.

And so Feldman is looking to Islamic courts to function in somewhat the way the Supreme Court of the United States functions, by bringing positive law into line with Shari ‘a. There are many problems along the way. For one thing, there are four schools of the law in Islam, one of which is primarily used by Shiites and another by the Wahhabi of Saudi Arabia. The Ottoman Empire used the Hanafi school as the basis for its codification of the law. On the other hand, the existence of four schools, plus sources outside Islam, could give Islamic courts a great deal of leeway to develop law based on Shari ‘a but adapted to twenty-first century conditions.

Feldman does not go on to push the tripartite division laid out by Montesquieu and enshrined in the U.S. Constitution. He does suggest that, if an Islamic state were to have both judicial and legislative institutions independent of the executive, and supported in that independence by the people, a situation might arise in which no one institution could bypass or ignore the others, and thereby gain a monopoly of power. One telling example, not mentioned by Marshall in his review, is that of Somalia. It is clear that Feldman believes that the United States erred in encouraging (if not hiring) Ethiopia to invade Somalia and put down the Shari ‘a courts movement there. The Shari ‘a courts movement had been making some headway in providing dispute settlement independent of the warlords, and even in obtaining some binding agreements across tribal boundaries. In other words, a system of checks and balances had begun to evolve in Somalia, which might have led to a stable governing regime. The Ethiopian invasion aborted that opportunity.

It strikes me that Feldman is in substantial agreement with Fareed Zakaria, who some years ago published an article in Foreign Affairs on illiberal democracy. It was Zakaria’s contention that in emphasizing such democratic processes as free elections, the West was placing the cart before the horse. Before democracy comes constitutionalism: the existence of institutions which guarantee the rule of law. Feldman, too, is not advocating that we urge Egypt and Jordan to have free elections, though that might help them to develop stronger, more independent legislatures, but that we press them to stop ruling by decree. The Muslim world needs strong, competing institutions, which will preserve the liberties of the people, more than it needs pieces of paper declaring the existence of those liberties.

There is an old story of an American who visits one of the stately homes of England. Impressed by the beautiful lawns, he asks the gardener to what he owes his wonderful results. The gardener replies, “Regular mowing, water and fertilizer on a strict regimen, and two hundred years.” The same may be true for constitutional government. If someone could induce Egypt, Jordan, Algeria, or Pakistan to adopt a system in which executive power were balanced by judicial or scholarly legal power on the one hand, and tribal or factional legislative power on the other, and keep that system running for two hundred years, at the end of that time there might be a working constitutional democracy so natural that no one could imagine an alternative.

It’s a nice dream. I don’t see a clear path to making it more than a dream.