By Cem Tecimer
Source: Noah Feldman, Law, Islam, and the Future of the Middle East 84 U. Det. Mercy L. Rev. 617-635 (2006-2007)
In his invited lecture at the University of Detroit-Mercy School of Law (The Mcelroy Lecture), Noah Feldman engages the idea of separation of powers in Islamic law and its contemporaneous manifestations. He acknowledges that, unlike in secular societies, in Muslim-majority countries, people believe that law is a transcendental ideal: “the Muslim world associate[s] Islam specifically with a system of laws…” (p. 618).
Having established the religious nature of the Muslim conception of what law is, Feldman argues that Islamic law inevitably embraces the concept of separation of powers. Because Muslims regard the Qurʾān as God’s immutable words and as a source of law [cf. Lowry, Reading the Qur’an as a Law Book], rulers in the Muslim world apply laws as opposed to making them. Yet, because the Qurʾān and additional authority can never cover all aspects of human life, interpretation is inevitable—and that interpretive function is entrusted to a community of scholars. This interaction between the community of scholars who pronounced the law and the ruler who applied it “amounted to, in historical terms, a separation of powers…” (p. 620).
Feldman is quick to add one important caveat: that the separation of powers was not a “theological necessity with Islam” (p. 620). In the Sunni tradition, the Prophet was regarded as a figure who not only transmitted to believers the divine law, but also “told people how to apply it”—effectively unifying executive and interpretive functions at himself (p. 620). Similarly, in Shīʿī Islam, “not only the Prophet, but the men who followed him, his successors” did the exact same thing (p. 621).
Despite this caveat, the separation of powers was an entrenched notion in Islamic legal culture, Feldman argues, until the introduction of modern constitutions to the Islamic world. The problem with the modern era, and its introduction of Western-type constitutions to the Muslim world, in Feldman’s view, is that “they no longer had the scholars who were the traditional keepers of Islamic law”—in other words, the community of scholars who traditionally interpreted the law, and when necessary, corrected the ruler, no longer existed under the Western type of constitutional scheme (p. 621). “Once the scholars had been sidelined, the consequence was what you might expect: a strong ruler, a strong executive…” (p. 622).
Feldman then turns to modern forms of Islamic constitutionalism to examine why, as is the case in Iraq, Islamic-oriented political parties garner most of the popular support: he argues that it is, at least partly, because Islam’s promise of a workable government with a notion of separation of powers.
Further, referencing once again the divine nature of Islamic law, and how according to Islam, with no exceptions, everyone is subordinated to law, Feldman concludes that Islam embraces the notion of the rule of law too—unlike, as Feldman notes, the Roman Empire, where the ruler was regarded as being above the law.
Having established that separation of powers and the rule of law are concepts not foreign, but on the contrary, quite central to Islamic law, Feldman returns to discussion of how modern constitutions, especially with regards to the Sunni world, caused “a possibly irreversible loss of prestige” among the scholars—exacerbating the modern state of separation of powers. Feldman argues that Iran is not a fitting example, because in Iran, the system is what is “sometimes called … the Rule of the Jurist….” Saudi Arabia, on the other hand, has subjected its scholars to an overly powerful monarchy—again disrupting the balance between jurists and the ruler.
- Islamic law: how Islamic law is perceived as “a system of laws that fundamentally delivers just government” (p. 618); how Islamic law embraces the idea of separation of powers because of the traditional dichotomy that has existed: a ruler who applies laws and a community of scholars who interprets and pronounces on what the law is (p. 620); how the community of scholars could, if need be, correct the ruler, and if the ruler acted contrary to God’s law, the rulers could “tell him, sir, you have got it wrong” (p. 620); how the separation of powers is no “theological necessity” in Islam, as exemplified by the Prophet who said what the law was as well as showed its best application (p. 620); how according to Islamic law, everyone is subjected to it and how this amounts to Islamic law’s embrace of a form of rule of law (p. 624, 626)
- Qurʾān: how it is considered to be God’s words, though varying interpretations of it exist (p. 619); how the fact that Qurʾān does not cover all human situations has made interpretation of it an inevitable phenomenon (p. 619)
- Muhammad: how the Prophet serves as an important caveat to Islamic law’s embrace of the separation of powers as in his personality were united the functions of both transmitting to believers what the law was and how it was to be applied (p. 620)
- Shīʿī: how the Shīʿī tradition conceived of not only the Prophet, but also of his successors as people who “combined the capacities to understand God’s law better than any other living person and also apply it” (p. 621).
- Sunnī: how the Sunnī tradition believes the Prophet to have united both interpretive and executive functions (p. 620); how the Sunnī world’s jurists have especially suffered a loss of prestige with the introduction of modern governments (p. 628)
- Islamic family law: how the jurist’s tasks, in modern times, is confined to matters of family law, diminishing their former centrality to interpreting divine law (p. 628)
- Islamic constitutional law: how the adoption of modern, Western-types of constitutions disrupted the Islamic embrace of separation of powers sustained by way of the functional divide that existed between the ruler and the jurists: modern constitutions made no mention of the jurists (p. 621), effectively “sidelin[ing]” them (p. 622); how in modern times, the support garnered by Islamic parties in elections could partly be attributed to their idea of having Islamic elements in the ruling of the country, and by implication Islam’s embrace of separation of powers that will “force the government actually to be honest…” (p. 622); how Iraq exemplifies this failure of modern constitutionalism with the jurists being sidelined (p. 623); how Iran cannot be said to have achieved Islamic law’s embrace of separation of powers because of Khomeini’s “distinctive contribution to Shīʿī political thought”—that is, “the Guardianship of the Jurist or the Rule of the Jurist” (p. 629); how Saudi Arabia, too, cannot serve as a good example for Islamic law’s embrace of separation of powers as scholars there are subordinated to a very powerful executive, that is, the monarchy (p. 630).