Islamic Law and the Modern State

The Middle East is in political turmoil yet again. The rise of ISIS has reignited the debate about the relationship between Sharia and the State. Does Sharia require the establishment of a state, which is based on coercion? Or the notion of coercion-based State is antithetical to faith-based Sharia? These questions could be answered in two ways. First, by using the terminologies and theoretical frameworks developed by Western scholars. A majority of them describe Sharia/Fiqh as ‘jurists law’ because these are Muslim jurists who elaborate the rules of law by using the methodology of usul al-fiqh. In this way, Sharia/Fiqh is the only legitimate ‘Islamic law’ and all other mechanisms of governance, whether formal or informal, are illegitimate or at best extra-Sharia. This is the dominant narrative of Islamic law and legal history amongst the Western scholars.  

There is another way of looking into these questions. This is the internal view of Sharia/Fiqh about the State. It is distinguishable from the Western view in the sense that it tackles this issue in the terminologies and theoretical frameworks of Muslim jurists. Similar to the Western view, it portrays Sharia/Fiqh as the legitimate form of law, however, it also recognizes the other forms of regulations, which are equally legitimate. In fact, these other forms draw their authority from within Sharia/Fiqh. In this way, although these so-called ‘extra-Sharia’ regulations do not have the normative authority of rules laid down by the jurists, they are nevertheless not illegitimate. Rather, they are complementary to Sharia/Fiqh. This narrative is justified under two broader theories of maslaha and siyasa. As a broader concept, maslaha encompasses istishab, urf, istislah and darura while Siyasa justifies the diverse institutional framework of ruler’s mazalim courts, market regulations under hisba and crime control through police (shurta).

Note that the question about the compatibility between Sharia and the Modern State is not merely an academic question for the Islamic Republic of Pakistan. Rather, it poses existentialist threat to the security and integrity of the state. Despite being a product of geopolitics in the region, the Taliban movement relies upon the rhetoric of the implementation of Sharia in Pakistan by replacing the ‘infidel system’. The failure of the formal system in providing free and fair dispensation of justice provides further impetus to the demand of the Taliban.

In this context, Pakistani jurists have to provide answers to such questions as: what is the nature of Sharia/Fiqh as a system of governance? What type of political system is envisaged under Sharia/Fiqh? What is the role of coercion/violence under such system? Are Muslims duty bound to establish an Islamic State? What are the key features of an Islamic State? Can there be multiple Islamic States? How should such states coordinate with each other?

These questions need to be answered from within the framework of Sharia to satisfy the conscience of ordinary Muslims.