Book Review: The Impossible State by Wael B. Hallaq—Some Preliminary Reflections
The thesis of this book is that
“Islamic State” judged by any standard definition of modern state is ‘both an
impossibility and a contradiction in terms’. It is asserted that moral-legal
system based on divine sovereignty is essential for Islam as much as
sovereignty is essential for the modern state. Therefore, there can be no
Islamic state (p51). Hallaq argues that the paradigmatic ‘Islamic governance’
does not differentiate between the legal, the moral, and the mystical. This
makes it a misfit within the structure of not only the modern state but also
the globalised world dominated by capitalism and corporations (pp137-8)
Students of political science
would notice that the doctrine of sovereignty was a historical construct. It
was the result of the Peace of Westphalia in 1648, which ended the religious
wars in Europe and restricted the powers of Roman Catholic Church to interfere in
the matters of European states. As sovereignty is a supreme authority which
need not be absolute, and the rise of supra-national organisations such as the UN,
EU and WTO have restricted the powers of nation states, it is not very hard to imagine
that an Islamic state could be sovereign within the limits of Sharī‘a.
Apart from political science,
Hallaq engages with other disciplines of social science and humanities. This
book is a fascinating piece of scholarship interwoven in an interdisciplinary
jargon and only a scholar of Hallaq’s stature could have produced it. As a
revisionist scholar, Hallaq is credited for not only breaking open the so
called closed gates of Ijtihād, but also
bringing down ‘Schacht’s castle’ about the origins of Islamic law. I find this
work quite impressive, however, my main concern is about its teleology. But
before I present my reflections, it is advisable to first explore this masterpiece.
After setting its premises in
chapter 1, chapter 2 sets out to define the Modern State. It is followed by chapter 3 which establishes
contradiction and confusion in the theory of Separation of Powers in the first
part of this chapter. In the second part, the author argues that the term
“Islamic State” is anachronistic and rather prefers the use of “Islamic
governance” for the historical phenomenon that has been described by other
scholars as “Islamic State”. He then describes the Islamic moral-legal system,
which according to him, is based on complete separation of powers between the
legislature and executive. He argues that Islamic “legislators”—muftīs represented the community and
successfully put a check on rulers’ powers. He challenges the thesis of Oriental
despotism and ends this chapter with the assertion that “Shar‘ī structures”
provide for John Rawl’s “well ordered society” in which citizens have a shared
sense of justice (pp72-3).
If the first half of the book
builds up to show how “Islamic governance” is perfectly suited to the models of
‘rule of law and democracy’, the second half is dedicated to establish that
“modern state” is an impossibility under Islamic modes of governance. Thus
chapter 4 shows that the separation of law and morality under Western tradition
along with the rise of new-Hobbesian political state has made it incompatible
with the norms of Sharī‘a. This theme is further developed in chapter 5. Here
it is shown that how modern state controls citizens through not only techniques
of surveillance but also through the provision of education and other public
services. This is contrasted with the “Islamic governance” that is based on the
“technologies of self” which do not differentiate between the moral, the legal
and the mystical.
Chapter 6 extends the analysis
and argues that in a globalised world primarily based on capitalist economy,
“Islamic governance” based on moral principles is an impossibility. Hallaq also
provides a critique of corporations from Islamic perspective. He attributes the
absence of juristic personality under Islamic law to the morality of Sharī‘a
because had the corporate form been tolerated it might have led to unwarranted
consequences. To support his argument, he refers to the English government’s
banning of corporations in the sixteenth century [should be eighteenth century]
on the basis of “moral sanity”, which did not last long. (p154)
The final chapter reiterates
the main thesis of the book by arguing that the modern state is not a ‘neutral
tool of governance’, which could be used to achieve the moral objectives of Sharī‘a.
The book ends on an elegant note that the moral problems posed by modernity are
not simple challenges for Muslims alone, rather the whole world shares these
challenges.
Hallaq’s thesis appears to
present an incisive critique of modernity and Western liberal democracy.
However, its subtext challenges the political Islam. Since an Islamic state is
an impossibility, and Sharī‘a is incompatible with the very notion of the state,
the whole point of a political organisation based on the principles of Sharī‘a
is preposterous. Sharī‘a is based on moral principles and it requires an
individual to comply with its injunctions voluntarily and with the intention of
obedience to God, therefore, any system of governance based on authoritative
sanctions is antithetical to Sharī‘a.
In order to strengthen and
persuasively argue his thesis, Hallaq had to conflate some historical facts.
First, he had to magnify the peculiarity of modern state and portray it as a
distinctive European phenomenon. One may ask, if state is a unique European
construct, so is the ‘law’. It follows that if pre modern Muslim political
models of governance cannot be called ‘state’, likewise, Sharī‘a could not be
translated as law. Hallaq accepts this but yet still he describes Muslim
jurists ‘muftis’ as legislators—the
representatives of civil society. Perhaps more problematic is his account of
Islamic judicial system which is shown to be an exclusive domain of Sharī‘a. In
this account, Sharī‘a is an all encompassing and all embracing code which deals
with minute details of every aspect of life. This ahistorical depiction of Sharī‘a is contrary to Hallaq’s
observations in his earlier work ‘Sharī‘a: Theory, Practice and Transformation’, where
he notes, ‘Islamic law depended, in both
theory and practice, on the cooperation of customary (‘āda, ‘urf) and royal law
(siyāsa shar‘īyya).' (p368 italics original). In this
work, however, both custom and imperial law are shown to be subservient to Sharī‘a.
The subtitle of the book is ‘Islam, Politics, and Modernity’s Moral
Predicament’. However, what is conspicuously missing is any reference to
the writings of the proponents of ‘Political Islam’. One finds a few references
to Syed Qutub. Khomeini is also mentioned in a footnote, and so is the
Brotherhood of Egypt. However, Mawdudi is significant only by his absence. This
is intriguing since any discussion on the issue of Islam and state remains
incomplete without Mawdudi’s contribution in this field, despite its being
unorthodox. Likewise, the absence of any reference to leading Muslim
philosopher Muhammad Iqbal renders the otherwise highly sophisticated work
deficient.
Despite above observations,
this is a remarkable piece of work and undoubtedly it will help generate a
healthy debate about the relationship between Islam and modern state. It is
thought provoking and has succeeded in raising the questions which would
grapple with the minds of both students and accomplished scholars.
