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THE NATURE AND DEVELOPMENT OF LAW IN

ISLAM AND THE RULE OF LAW CHALLENGE IN


THE MIDDLE EAST AND THE MUSLIM WORLD

Hossein Esmaeili∗

Abstract

While Islamic law is a traditional and religious legal system, it is one of the three
major legal systems of the world, after common law and civil law systems. The
legal system of Islam differs from other modern legal systems, and has its own
history of development and a unique nature. The concept and nature of law in
Islam is related to another modern concept: the doctrine of the rule of law. While
the rule of law doctrine has become an important agenda of international law and
international relations, an effective system incorporating the rule of law is
presently unavailable in most Middle Eastern and Muslim countries. This paper
analyzes the nature and the meaning of law in the Islamic legal system within a
historical and philosophical context from a modern perspective. This paper draws
on various traditional principles and recent practical implications of Islamic law
as it applies in Muslim societies, analyzes the nature of law in the legal system of
Islam, and investigates the possibility of gradually developing a rule of law based
system in Muslim countries, without the sudden imposition of foreign codes, legal
principles and legal systems.

I. INTRODUCTION
Islamic law is one of the three major legal systems of the world after common
law and civil law systems. It is applicable, at least in part, in more than fifty-five
Muslim countries and in a number of non-Muslim countries. Islamic law
originated in the Middle East1 in the late sixth century and developed mainly in that

∗ Dr. Hossein Esmaeili, LL.B. (University of Tehran, 1987), M.A. in Criminal Law and
Criminology (Tarbiat Modares Uuniversity, Tehran, 1991), LL.M. (University of New South Wales,
Sydney, 1994), PhD (University of New South Wales, Sydney, 2000), is a senior lecturer in law at
Flinders University, Adelaide, Australia. Dr Esmaeili is a former Middle Eastern journalist and a former
Middle Eastern legal consultant. He has been cited as an authority on Islamic and Middle Eastern law
by Australian tribunals and courts including the Federal Court of Australia. He is a member of the
International Law Association’s Committee on Islamic Law and International Law, and is the co-editor
of the Flinders Law Journal. The author would like to thank Professor Kathy Mack of Flinders
University for her comments on an earlier draft of this article, and Kate Wheldrake for her research
assistance.
1. Middle Eastern countries include Bahrain, Egypt, Iraq, Iran, Israel, Jordan, Kuwait, Lebanon,
Oman, the Palestinian territories, Qatar, Saudi Arabia, Syria, United Arab Emirates and Yemen. The
Greater Middle East includes Afghanistan, Cyprus, Pakistan, Turkey, Sudan, Somalia, Eritrea, Djibouti,
Libya, Algeria, Tunisia and Morocco.

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region. Muslim countries in the Middle East still have significant influence in the
development and application of Islamic law throughout the world.2
The concept, meaning and sources of law in Islam, similar to other systems3
are the subject of extensive literature and contested views.4 The nature of religion
and particularly the definition of ‘Islam’ is the subject of contested views as well.
The concept and nature of law is related to another modern concept: the
doctrine of the rule of law. In recent years, the rule of law is seen as a worthwhile
political project.5 Promoting the rule of law, as a doctrine, is becoming an
important agenda of international law. The United Nations considers the promotion
of the rule of law to be at the heart of its mission, and a concept that drives much of
its work. The principle of the rule of law has been an agenda item at the General
Assembly of the United Nations since 1992.6
There are a number of approaches towards establishing a rule of law system in
Muslim societies, including: application of a purified traditional Islamic law
system, as it was applied at the time of Prophet Muhammad;7 Islamic society’s

2. The majority of people in these countries are Muslim except for Israel, where the majority of
the population is Jewish. In certain countries, such as the Palestinian territories, Lebanon and Egypt,
there is a sizable Christian population. Saudi Arabia has a one hundred percent Muslim population
(excluding non-nationals). On ethnicity, the Middle East historically consisted of four distinct groups
namely Arabs, Persians (or Iranians), Turks and Jews, with some other sizable ethnic groups such as
Kurds, Phoenicians, Armenians and Assyrians. Today the majority of Middle Eastern countries are
comprised of Arabs, such as Egypt, Saudi Arabia and Iraq, but Turkey, Iran and Israel are major players
in the region as well.
3. According to H. L. A. Hart, in Western jurisprudence and Western legal theories, the
question, “what is law” is indeed a puzzle. See H. L. A. HART, ESSAY IN JURISPRUDENCE AND
PHILOSOPHY 5 (1983).
4. Literature on Islamic law is extensive in English, other European languages, and in major
Middle Eastern languages (Arabic, Persian and Turkish). Some of the best authorities on Islamic law in
English are: SYED AMEER ALI, THE SPIRIT OF ISLAM: A HISTORY OF THE EVOLUTION AND IDEALS OF
ISLAM (1891); J. N. D. ANDERSON, ISLAMIC LAW IN THE MODERN WORLD (1959); PERI BERAMAN ET
AL, THE ISLAMIC SCHOOL OF LAW: EVOLUTION, DEVOLUTION, AND PROGRESS, (2005); NOEL J.
COULSON, A HISTORY OF ISLAMIC LAW (1964); ASAF A. A. FYZEE , OUTLINES OF MUHAMMADAN LAW
(Tahir Mahmood ed., 2008); IGNAZ GOLDZIHER, INTRODUCTION TO ISLAMIC THEOLOGY AND LAW
(Andreas Hamari & Ruth Hamari trans., 1981); WAEL B. HALLAQ, SHARIA: THEORY, PRACTICE,
TRANSFORMATIONS (2009); MAJID KHADDURI, WAR AND PEACE IN THE LAW OF ISLAM (1955); JOSEPH
SCHACHT, AN INTRODUCTION TO ISLAMIC LAW (1964); BERNARD G. WEISS, THE SPIRIT OF ISLAMIC
LAW (1998); SAMI ZUBAIDA, LAW AND POWER IN THE ISLAMIC WORLD (2003). On Islamic law in
South East Asia, see M. B. HOOKER, INDONESIAN SYARIAH: DEFINING A NATIONAL SCHOOL OF
ISLAMIC LAW (2008); NADIRSYAH HOSEN, SHARI’A AND CONSTITUTIONAL REFORM IN INDONESIA
(2007). On Islamic law in Australia, see JAMILA HUSSAIN, ISLAM: ITS LAW AND SOCIETY (2004).
5. THOMAS CAROTHERS, PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE
(2006); Thomas Carothers, The Rule of Law Revival, 77 FOREIGN AFF. 95, 95 (1998).
6. U.N. Secretary-General, Report of the Secretary General on the Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies, U.N. Doc. S/2004/616 (Aug. 23, 2004),
available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenEle
ment. See also Rule of Law Coordination and Resources Group, Joint Strategic Plan 2009-2011,
available at http://www.unrol.org/files/RoLCRG%20Joint%20Strategic%20Plan.pdf.
7. These support the establishment of an Islamic caliphate. Examples of groups supporting this
approach are Ikwan al-Muslemin (the Society of the Muslim Brothers of Egypt and North Africa), Hizb
al-Tahrir, and Jammat-i-Islami in the Indian Subcontinent. See EMIRATES CENTRE FOR STRATEGIC
STUDIES AND RESEARCH, ISLAMIC MOVEMENTS, IMPACT AND POLITICAL STABILITY IN THE ARAB
WORLD (2003); ISLAM AND POLITICAL LEGITIMACY (Shahram Akbarzadeh & Abdullah Saeed eds.,
2003); ISLAM, MUSLIMS AND THE MODERN STATE: CASE-STUDIES OF MUSLIMS IN THIRTEEN
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 331

adoption of modern and predominantly Western legal principles, and the complete
secularization of the legal and political system;8 and applying a reformed legal
system of Islam, without the sudden imposition of foreign legal systems (as
occurred during colonization and after the collapse of the Ottoman Empire) and
without completely undermining the spirit of traditional Shari’ah principles.9 This
last approach may support elements of secularism such as secularization of the
State, but not the society.10
The central question is how can the rule of law be conceptualized in Muslim
societies? Could a concept of the rule of law be formulated for an Islamic state? At
present, in most Middle Eastern and Muslim countries, an effective system
incorporating the rule of law is unavailable.11 No Muslim country can be said to
have an Islamic rule of law system. Though such a system may exist, at least to a
limited degree, in a number of Muslim countries, these systems cannot be
categorized as Islamic systems.
To formulate an Islamic conception of the rule of law for the Middle East, one
must first have an understanding of the nature and meaning of ‘law’ in Muslim
societies within a historical and philosophical context. While other works in
relation to the rule of law in the Middle East and the Islamic legal system
emphasize certain aspects of the rule of law system such as human rights,
democracy, or the criminal justice system in Islam, this paper brings together all
those components of the rule of law, but also the concept and meaning of ‘law’ and
the rule of law, theoretical and philosophical bases of the rule of law in Islam, and
practical mechanisms of the rule of law. This paper draws on various traditional

COUNTRIES (HUSSEIN MUTALIB & TAJ UL-ISLAM HASHMI eds., 1994); MANSOOR MOADDEL &
KAMRAN TALATTOF, CONTEMPORARY DEBATES IN ISLAM: AN ANTHOLOGY OF MODERNIST AND
FUNDAMENTALIST THOUGHT (2000); SEYYED VALI & REZA NASR, MAWDUDI AND THE MAKING OF
ISLAMIC REVIVALISM (1996).
8. Examples of groups supporting this approach are: the Ba’ath party (in Syria and Iraq), the
Kemalist party (People’s Republican Party), and various political parties in the Middle East and South
East Asia. See NIYAZI BERKES, THE DEVELOPMENT OF SECULARISM IN TURKEY (1964). One of the
leading Islamic scholars supporting secularism in Islamic was Ali Abd al-Raziq. See ALI ABD AL-
RAZIQ, AL-ISLAM WA USUL AL-HUKM: BAHTH FI-L KHILAFA WA-L HUKUMA FI-L ISLAM [ISLAM AND
THE FOUNDATIONS OF GOVERNANCE: RESEARCH ON THE CALIPHATE AND GOVERNANCE IN ISLAM]
(1978) (author’s translation). See also BASSAM TIBI, THE CHALLENGE OF FUNDAMENTALISM:
POLITICAL ISLAM AND THE NEW WORLD DISORDER (1998).
9. Sharia ,which is translated to Islamic law in English literature, has a broader meaning than
the legal system of Islam. See section III(A) infra for a definition of Sharia.
10. According to Abdullahi Ahmed An-Na’im, “[i]n order to be a Muslim by conviction and free
choice, which is the only way one can be a Muslim, I need a secular state. By a secular state I mean one
that is neutral regarding religious doctrine, one that does not claim or pretend to enforce Shari’a – the
religious law of Islam . . . “ ABDULLAHI AHMED AN-NA’IM, ISLAM AND THE SECULAR STATE:
NEGOTIATING THE FUTURE OF SHARIA 1 (2008).
11. According to Mallat: “all countries in the present Middle East fail the test of the rule of law
… This does not mean that there is no law in the Middle East. Standing at the turn of the twenty-first
century, the battled is joined over democracy, human rights, self-determination, rule of law, good
governance, public accountability, all in my view variations on the same theme. None of the Middle
Eastern jurisdictions has reached the critical mass under which I am comfortable describing it as a state
where there the rule of law prevails, or as a democratic country.” CHIBLI MALLAT, INTRODUCTION TO
MIDDLE EASTERN LAW (2007); see also ANTHONY SHADID, LEGACY OF THE PROPHET: DESPOTS,
DEMOCRATS, AND THE NEW POLITICS OF ISLAM 286 (2002), in which the author states that “no Arab
head of state, outside Lebanon, has changed by truly democratic means for a generation.”
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principles and recent practical implications of Islamic law as it applies in Muslim


societies, analyzes the nature of law in the legal system of Islam, and investigates
the possibility of developing a rule of law based system in Muslim countries,
without the sudden imposition of foreign codes, legal principles and legal systems.
First, the paper will review broader theoretical discussions of the concepts of
‘law’ and the ‘rule of law’ in the Western legal tradition. Then, it will investigate
the nature and meaning of ‘law’ and the ‘rule of law’ in the Islamic legal system. In
analyzing the nature of law and the rule of law in Islam, the paper will scrutinize
selected characteristics of Islamic law; the relationship between law and Islam; the
divine nature of Islamic law; sacredness of law in Islam; and sources of law in
Islam. The paper will then analyze aspects of Islamic law that have the potential to
contribute to the establishment of civil society in the Muslim world, including
certain Shari’ah principles; and the idea of limited government in Islam. Finally,
the paper will provide an overview of issues of human rights and the rule of law,
and of how a rule of law system might be established in those Muslim countries
that recognize universal principles of human rights.
The paper seeks to arrive at a better understanding of the possible development
of a rule of law system in the Middle East through analyzing the nature of law in
Islam. The paper will demonstrate that the establishment of the rule of law in the
Muslim world should be carried out from within, and would need to be slow and
gradual in order to be sustainable and successful.

II. THE MODERN CONCEPT OF THE RULE OF LAW


The term ‘rule of law’ has varying and deeply contested meanings as the
expression of an idea and as a doctrine.12 The modern view of the rule of law as
idea and doctrine evolved as part of the doctrine of limited government and was
buttressed by the eighteenth century doctrine of the separation of powers.13 The rule
of law doctrine was further articulated in the late nineteenth century in the work of
the English lawyer A.V. Dicey, who expressed the view that the rule of law is a
system where the law is supreme against the arbitrary exercise of power by
influential individuals or the State.14 The term ‘rule of law’ also refers to “the

12. On the definition of the ‘rule of law,’ see JOHN FINNIS, NATURAL LAW AND NATURAL
RIGHTS (1980); MURRAY GLEESON, THE RULE OF LAW AND THE CONSTITUTION (2000); THE RULE OF
LAW AND THE SEPARATION OF POWERS (Richard Bellamy ed., 2005); BRIAN Z. TAMANAHA, ON THE
RULE OF LAW: HISTORY, POLITICS AND THEORY (2004); David Clark, The Many Meanings of the Rule
of Law, in LAW, CAPITALISM AND POWER IN ASIA 28 (Kanishka Jayasuriya ed., 1999); Matthew
Kramer, On the Moral of the Rule of Law 63 CAMBRIDGE L. J. 65, 65 (2004); Margaret Radin,
Reconsidering the Rule of Law. 69 B.U. L. REV. 781(1989); Joseph Raz, The Rule of Law and its
Virtue, 93 L. Q. REV. 195 (1977); Cheryl Saunders & Katherine Le Roy, Perspectives on the Rule of
Law, in THE RULE OF LAW (2003).
13. Ian Shapiro, Introduction, in THE RULE OF LAW 1 (Ian Shapiro ed., 1994); see also
FREDERIC HAYEK, THE RULE OF LAW (1975).
14. ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 202
(10th ed. 1964).
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general notion of constitutional government.”15 Many great thinkers, past and


present, have upheld the rule of law, which has been described as “an unqualified
human good.”16 Samuel Huntington stated that “[t]he tradition of the rule of law
laid the basis for constitutionalism and the protection of human rights.”17 Similarly,
Fareed Zacharia writes that “everyone accepts that the rule of law is the foundation
of liberties in the Western world.”18 According to James Crawford, “[the]
fundamental value of the rule of law . . . must be instituted globally if we are to
have a secure future.”19 In Western scholarship the rule of law is highly valued: it
has been described as the “rule of God and intelligence,”20 a “pillar of the modern
world,”21 a “hallmark of all liberal societies,”22 and “synonymous with the
maintenance of civilized existence.”23
The rule of law is evolving in both extent and content, covering experiences
from positivist, minimum-content versions to ‘thick’ versions with a focus on
liberal capitalist democracy.(Footnote necessary) It also reflects differences in the
experiences of regions and countries that have relatively recently adopted the
concept, including Eastern Europe, South East Asia, Latin America and even the
Middle East. Cherishing the rule of law is not the exclusive preserve of Western
thinkers and scholars. In 1910, an Iranian diplomat and legal scholar, in his
monograph entitled One Term, stated that “the fundamental basis of Western
civilization is one term, and all achievements in the West result from one term: the
rule of law.” 24 Another measure of the ubiquity and centrality of the rule of law is
that, while Western liberal democracy and capitalism are not necessarily
universally valued, those who criticize democracy rarely contest the importance
and necessity of the rule of law.25

15. DAVID CLARK, PRINCIPLES OF AUSTRALIAN PUBLIC LAW 57 (3d ed. 2010). This aspect of
the rule of law can be seen in, for example, a recent piece of legislation in the United Kingdom, which
states that “This Act does not adversely affect … the existing constitutional principle of the rule of
law…” Constitutional Reform Act, 2005, c. 4, §1 (U.K.).
16. E. P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 266 (1975).
17. Samuel P. Huntington, The West: Unique, Not Universal, FOREIGN AFF., Nov-Dec. 1996, at
28, 32.
18. Fareed Zakaria, The Enemy Within, N.Y. TIMES BOOK REV., Dec. 17, 2006, at 8 (reviewing
JOHN YOO, WAR BY OTHER MEANS: AN INSIDER’S ACCOUNT OF THE WAR ON TERROR (2006)).
19. James Crawford, International Law and the Rule of Law 24 ADELAIDE L. REV. 3, 4 (2003).
20. “He who bids law to rule seems to bid God and intelligence alone to rule …” ARISTOTLE,
POLITICS. BOOKS I AND II (Trevor J. Saunders trans., 1995). See also Ernest J. Weinrib, The
Intelligibility of The Rule of Law, in THE RULE OF LAW: IDEAL OR IDEOLOGY 59, 59 (Allan C.
Hutchinson & Patrick Monahan eds., 1987).
21. ASIAN DISCOURSES OF RULE OF LAW: THEORIES AND IMPLEMENTATION OF RULE OF LAW IN
TWELVE ASIAN COUNTRIES, FRANCE, AND THE U.S. at i (Randall Peerenboom ed., 2004).
22. STEPHEN BOTTOMLEY & SIMON BRONITT, LAW IN CONTEXT 60 (3d ed. 2006).
23. Jawaharlal Nehru, Opening Plenary Session, in THE RULE OF LAW IN A FREE SOCIETY: A
REPORT ON THE INTERNATIONAL CONGRESS OF JURISTS, NEW DELHI INDIA, JAN. 5-10, 1959, 37, 39
(Norman S. Marsh ed. 1960).
24. MIRZA YUSUF MOUSTASHAR AL-DOULEH TABRIZI, YEK KALAMA (‘ONE TERM’) (Sadeq
Sajjadih ed., 1985).
25. The former President of Indonesia, Abdul Rahman Wahid, stated in 1999 that the
establishment of the rule of law was one of his major achievements. Mohammad Khatami won the
election in Iran in 1997, campaigning on the establishment of the rule of law and civil society in Iran.
See generally MOHAMMAD KHATAMI, ISLAM, LIBERTY AND DEVELOPMENT (1998). Even an Afghan
334 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

Before entering into any discussion about the concept and application of the
rule of law in Islam, it is necessary to consider the broader theoretical discussions
about the meaning of the rule of law in Western literature. The concepts of the rule
of law in the Western legal tradition, and the nature of law more generally, are the
subject of a wide variety of legal and philosophical theories.26 These understandings
of the rule of law will inform the way that the rule of law in Islam may be
considered.
The rule of law is a common expression used in legal and philosophical texts
to refer to a general concept representing the supremacy of law over individuals
and the State. Its precise meaning, however, remains vague in Western liberal
societies and elsewhere.27 The concept of the rule of law has been described as
“ambiguous and obscure,”28 having an unstable meaning,29 and being more
ambiguous than ever before.30 Like many other Western legal philosophical
concepts, its historical background can be found in the teachings and thoughts of
Plato and Aristotle, in the Roman law tradition, through to modern theories of
natural law and positivism. Richard Flatman summarized the conceptual roots of
the rule of law in Western philosophical and legal tradition in the following words:

From Plato and Aristotle through the Roman jurists, the medieval natural
law thinkers, the neo-Stoics and modern natural law theorists,
Montesquieu and the American founders, the nineteenth-century
advocates of the Rechsstaat, and up to contemporary enthusiasts such as
Friedrich Hayek and John Rawls, Lon Fuller and Theodore Lowi,

warlord, Abdul Rashid Dostum, who is currently a member of the Afghan government, has made
statements in favor of the rule of law, stating “Now is the time to defend ourselves not with tanks and
armed corps but by the rule of law and establishing political parties.’’ Anthony Davis & Mazar-I-Sharif,
Makeover For A Warlord, TIME, June 3, 2002, http://www.time.com/time/magazine/article/0,9171,1002
556,00.html.
26. On positivist theories of law see generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE
DETERMINED (1954); JEREMY BENTHAM, OF LAWS IN GENERAL, reprinted in THE COLLECTED WORKS
OF JEREMY BENTHAM (H.L.A. Hart ed.,1970); J. W. HARRIS, LAW AND LEGAL SCIENCE (1979); HANS
KELSEN, GENERAL THEORY OF LAW AND STATE (Anders Wedberg trans., Harvard University Press
2011) (1949); HANS KELSEN, THE PURE THEORY OF LAW (Max Knight trans., University California
Press 2010) (1970);. On natural law theory see generally THOMAS AQUINAS, TREATISE ON LAW: THE
COMPLETE TEXT (Alfred J. Freddoso trans., St. Augustine Press 2009); LON L. FULLER, THE
MORALITY OF LAW (1969); JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (H. L. A. Hart ed.
1980); THOMAS HOBBES, LEVIATHAN, reprinted in EVERYMAN’S LIBRARY 691(Ernest Rhys ed. 1937);
JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Cambridge Univ. Press 2d ed., 1967); NATURAL LAW,
in INTERNATIONAL LIBRARY OF ESSAYS IN LAW AND LEGAL THEORY (Robert P. George ed. 2003). On
other modern theories of law see EVGENY B. PASHUKANIS, LAW AND MARXISM: A GENERAL THEORY
(Barbara Einhorn trans., Ink Links 1978) (1929); JOHN RAWLS, A THEORY OF JUSTICE (1971);
Katharine T. Bartlett, Feminist Legal Method, 103 HARV. L. R. 829 (1990); H. L. A. Hart, Scandinavian
Realism, 17 CAMBRIDGE L.J. 233 (1959); Roscoe Pound, The Call for a Realist Jurisprudence, 44
HARV. L. REV. 697 (1931).
27. Eric W. Orts, The Rule of Law in China, 34 VAND. J. TRANSNAT’L L. 43, 50 (2001).
28. MICHAEL OAKESHOTT, ON HISTORY AND OTHER ESSAYS 129-31 (1999).
29. Fred Dallmayr, Hermeneutics and the Rule of Law, 11 CARDOZO L. REV. 1449, 1451 (1990).
30. Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97
COLUM. L. REV. 1, 1 (1997).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 335

champions of the rule of law have assumed the desirability or at least the
ineliminible reality of extensive political rule of human conduct.31

Yet all of these thinkers, from Plato to the more recent advocates and scholars,
still could not agree on the definition of the concept of the rule of law or its
relevant aspects, such as governance. Indeed, while Plato’s ‘philosopher king’
emphasized the ruler’s knowledge Aristotle linked law with reason. Hobbes, Austin
and their positivist followers emphasized the source of law -- not its content -- as
the reason for the validity and legitimacy of law. HLA Hart qualified and modified
Austin’s theory and argued that laws that lack certain criteria may not be
considered as law and therefore the subject of obedience.32 Locke emphasized the
supremacy and content of the law. Under Locke’s theory, elaborated upon by
modern positivists, the purpose of the law is to limit the arbitrary power of both
individuals and States. In the words of one commentator “the dominant concern of
these thinkers [champions of the rule of law] . . . has not been with the question of
whether or how much governance there should be, but rather with preventing
arbitrariness and other misuses of political authority and power.”33
More recent scholarship has generally been divided into two classifications of
the rule of law: thin and thick.34 Thin conceptions of the rule of law generally
involve, at the very least, a limit on the power of the state and state actors, and
usually contain a number of elements, such as public accessibility to law, equality
before the law, commonality between the law in theory and law in practice, and
acceptance of legal principles by a majority of people.35
Thick versions of the rule of law include the basic elements included in thin
versions and add certain elements, which are usually based on particular cultural,
political, and economic systems.36 An example of a thick conception of the rule of
law is a liberal democratic version of the rule of law as applied in Europe, America
and Australia. This version includes certain culturally, politically, or economically
specific elements, such as free market capitalism and the privileging of civil,
political, and individual rights over economic, social, and cultural rights.
Conceptions of the rule of law have also been divided into formal and
substantial branches. Formal theories are generally concerned with the sources of
law and formal legality, whereas substantial theories are more concerned with the
content of law.37 Formal conceptions generally describe elements of ‘the rule of

31. RICHARD FLATHMAN, Liberalism and the Suspect Enterprise of Political Institutionalisation:
The Case of the Rule of Law, in THE RULE OF LAW, supra note 13, at 297, 302.
32. HART, supra note 3, at 81-82.
33. FLATHMAN, supra note 31.
34. See RANDALL PEERENBOOM, Varieties of Rule of Law: An Introduction and Provisional
Conclusion in ASIAN DISCOURSES OF RULE OF LAW, supra note 21, at 1-55, 2; JOSEPH RAZ, The Rule of
Law and Its Virtue, in THE AUTHORITY OF LAW 211, 211 (1979).
35. RANDALL PEERENBOOM, Varieties of Rule of Law: An Introduction and Provisional
Conclusion, in ASIAN DISCOURSES OF RULE OF LAW, supra note 21, 1-55, 2-3.
36. RANDALL PEERENBOOM, Varieties of Rule of Law: An Introduction and Provisional
Conclusion, in ASIAN DISCOURSES OF RULE OF LAW, supra note 21 at 1-55, 4.
37. TAMANAHA, supra note 12, at 91.
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law,’ such as rule by law, formal legality and some aspects of democracy. Under
substantive versions, however, individual rights, justice, and social welfare are also
included.38
The concept of the rule of law may differ within similar civilizations. For
example, scholars have observed differences between France39 and the United
States,40 which are both developed “Western” societies. Differences also exist
between similar legal and political systems, such as between the United States and
India, which both have systems based on democracy and representative
governments.41
John Finnis said that there were eight characteristics that were necessary in
order to establish the rule of law:

A legal system exemplifies the Rule of Law to the extent (it is a matter of
degree in respect of each item of the list) that (i) its rules are prospective,
not retroactive, and (ii) are not in any other way impossible to comply
with, that (iii) its rules are promulgated, (iv) clear and (v) coherent with
one another, that (vi) its rules are sufficiently stable to allow people to be
guided by their knowledge of the contents of the rules, that (vii) the
making of decrees and orders applicable to relatively limited situations is
guided by the rules that are promulgated, clear, stable and relatively
general; and that (viii) those people who have authority to make,
administer, and apply the rules in an official capacity (a) are accountable
for their compliance with rules applicable to their performance and (b) do
actually administer the law consistently and in accordance with its tenor.42

This paper will take the characteristics that Finnis identified -- as well as the
definition of the rule of law by the United Nations43 -- as indicative of the kind of
conditions that need to be fulfilled in order to describe a legal system as one based
on the rule of law. The question of whether a legal system is based on the rule of
law has become increasingly important as the value of the rule of law has increased
throughout the world.
One particular question that has become prominent is whether the rule of law
can be divorced from Western liberal democracy44 or whether a different

38. TAMANAHA, supra note 12, at 91.


39. For discussion of the rule of law in France, see Laurent Pech, Rule of Law in France, in
ASIAN DISCOURSES OF RULE OF LAW 79-113 (Randall Peerenboom ed., 2004).
40. For discussion of the rule of law in the United States, see Brian Tamanaha, Rule of Law in
the United States, in ASIAN DISCOURSES OF RULE OF LAW 56-79 (Randall Peerenboom ed., 2004).
41. For discussion of the rule of law in India, see Upendra Baxi, Rule of Law in India: Theory
and Practice, in ASIAN DISCOURSES OF RULE OF LAW 324-46 (Randall Peerenboom ed., 2004).
42. FINNIS, supra note 12, at 270-71.
43. See infra note 183.
44. ORTS, supra note 27, at 49 n. 25 (“The claim of the possibility of the separation of the rule of
law and democracy was raised by Eric Orts at the Law and Society Annual Meeting in Miami on May
27, 2000. According to him: “[t]he claim provoked controversy when I first presented the idea at the
Law and Society annual meeting in Miami on May 27, 2000. I am not the first, however, to make the
argument that principles of ‘rule of law’ may be separated from those of ‘democracy,’ as discussed
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 337

understanding of the rule of law could be conceptualized in other societies -- in


particular in the Middle East. The core premise contained in the meaning of the
rule of law is that society must be governed by certain rules. In a liberal society
there is a greater emphasis, both in a historical context and in practice, on the rules
being imposed as duties on the State; rather than only on citizens.45 The main
difference between legal rules and other norms and rules in the society is that a
higher authority -- the State -- enforces legal rules. Indeed, law is distinguished
from morality, custom, and other rules because of its coercive character.46 There are
different theories in relation to the need for a centralized state, and the nature and
limits of power of the State. Anarchists reject the idea of a central State, and
according to some Marxist writings there are some scattered observations labeling
the theory of a State as an element of class domination, which may “wither away.”47
Under the classical liberal theory, however, a political State that has higher
authority to make and enforce law is rationally justified to establish a society based
upon the rule of law. According to Thomas Hobbes:

[t]he only way to erect such a common power, as may be able to defend
them from the invasion of foreigners, and the injuries of one another, and
thereby to secure them in such sort as that by their own industry and by
the fruits of the earth they may nourish themselves and live contentedly, is
to confer all their power and strength upon one man, or upon one
assembly of men, that may reduce all their wills, by plurality of voices,
unto one will: which is as much as to say, to appoint one man, or assembly
of men, to bear their person; and every one to own and acknowledge
himself to be author of whatsoever he that so beareth their person shall
act, or cause to be acted, in those things which concern the common peace
and safety; and therein to submit their wills, every one to his will, and
their judgments to his judgment.48

Hobbes’ theory requires a powerful authority to make legislation, and to create


and enforce obligations. Therefore, according to this theory, a powerful state is
necessary to establish the rule of law. Hobbes’ assertion of the necessity of a
political state is very similar to the concepts of hokm (the order) and hokoumat

below in Part III. Most of a panel of well-known legal scholars at the same conference, including
Edward Rubin, Frederick Schauer, William Whitford, and Denis Patterson, made similar arguments that
the ‘rule of law’ can and should be considered separately from ‘democracy.’” ); also see generally RAZ,
supra note 12.
45. BOTTOMLY & BRONITT, supra note 22, at 60. See generally HENRY DAVID THOREAU, THE
VARIORUM CIVIL DISOBEDIENCE (1967).
46. FRANZ NEUMANN, THE RULE OF LAW: POLITICAL THEORY AND THE LEGAL SYSTEM IN
MODERN SOCIETY 11 (1986).
47. See generally H.L.A. Hart, Book Note, 69 HARV. L. REV. 772 (1955-56) (reviewing HANS
KELSEN, THE COMMUNIST THEORY OF LAW (1995)); EVGENY BRONISLAVOVICH PASHUKANIS, THE
GENERAL THEORY OF LAW AND MARXISM (3d ed., 2002).
48. THOMAS HOBBES, LEVIATHAN 89 (J.M. Dent & Sons Ltd. 1937) (1651).
338 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

(government) in Islamic law.49 In contrast, in an Islamic State the inverse occurs:


the emphasis is on duties being imposed on citizens rather than the State.50
Another way of describing the rule of law is to define it as ‘a system of law’ or
a ‘law and order’ vessel. In this sense the government may act outside the boundary
of the law. For example, scholars have observed that in China the rule of law
traditionally refers to an instrumental conception of law where the State uses the
“law” at its discretion to establish order in the society.51 Similarly, in Islamic legal
systems, in the absence of an independent judiciary, the State is not subject to the
same restraints as individuals.
The extent of the weight given to the rights of citizens can be observed from
the views of some philosophers, who maintain that under the rule of law civil
disobedience may be justified if the government does not operate within the
boundary of the law.52 For example Lon Fuller, a natural lawyer, has argued that
rules imposed by a government not operating under the rule of law are not laws and
are not even rules.53 The interaction between the rule of law and liberal democracy
has been observed since the modern rule of law conception originated and
developed in Europe in the seventeenth century. For many the rule of law and
liberal democracy cannot be separated, and are considered part of the same
concept, although in practice this may not have always been the case. Even in
England it can be argued that for some time the rule of law existed without
democracy.54 Indeed, until a few decades ago, almost all other countries which
could be described as possessing a rule of law system were either Western or
former Western colonies. In recent years, and with the fall of the Soviet empire and
the collapse of many communist and authoritarian states, however, the majority of
countries in the world possess either a rule of law system or are moving towards
establishing a rule of law system. Currently, along with Japan, countries such as
Malaysia, Singapore, Turkey, Bangladesh, Pakistan, Brazil, South Africa, Estonia
and Chile can be said to have some degree of a rule of law system, with certain
democratic institutions.
It has been said that a liberal system cannot exist without the rule of law, but
the rule of law may exist in a non-liberal system.55 Liberalism was born in the late
seventeenth century as a political theory, but now has its own culture, economic
theory, ethics and even a theory of knowledge.56A distinct aspect of the rule of law

49. See infra Section D.


50. According to Abdolkarim Soroush, in classical and religious thoughts (including in Islam), a
human is a mukallaf (responsible) creature rather than moheq (rightful). ABDOLKARIM SOROUSH, AAIN
SHAHRIYARI WA DINDARY [GOVERNING METHODS AND RELIGION] 162 (2002).
51. DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA: EXEMPLIFIED BY 190 CH’ING
DYNASTY CASES WITH HISTORICAL, SOCIAL, AND JURIDICAL COMMENTARIES 417 (1967).
52. BOTTOMLEY & BRONITT, supra note 22, at 60.
53. See LON L. FULLER, THE MORALITY OF LAW Ch. 2 (The Colonial Press Inc. 1973)(1964).
54. See generally RAZ, supra note 12.
55. TAMANAHA, supra note12, at 33.
56. For an understanding of different aspects of liberalism see HARRY K. GIRVETZ, THE
EVOLUTION OF LIBERALISM (2d ed., 1963); ROBERTO M.A. UNGER, KNOWLEDGE & POLITICS (1975).
On the emphasis of liberalism on liberty see JOHN STUART MILL, ON LIBERTY WITH THE SUBJECTION
OF WOMEN AND CHAPTERS ON SOCIALISM (Cambridge Univ. Press 1989)(1806); Jeremy Waldron,
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 339

in a liberal system is its significant emphasis on the issue of liberty and


individualism. According to John Stuart Mill, “[t]he only freedom which deserves
the name, is that of pursuing our own good in our own way, so long as we do not
attempt to deprive others of theirs, or impede their efforts to obtain it.”57 The rule of
law in a liberal system emphasizes the preservation of individual liberty.58 This
means the rule of law in a liberal system is distinct from its historical background
in both Greek and Medieval societies, where the emphasis of the rule of law was on
collective self-rule and for the good of the community.59 Aspects of liberalism,
including its emphasis on individualism and individual liberty, have changed. The
essence of the rule of law theory in a liberal system is to protect an individual’s
liberties against the arbitrary power of the State and powerful individuals. This
makes absolute sense in Western societies, and in societies where individuals are
the basis of society. In those societies, individuals, through professional or political
associations or parties, create support networks against the State. But in societies
where tribal structures and traditions define most individuals and their roles, and
where the State is a confederation of certain tribes, how can an effective rule of law
system be created? And even if it could be created, how could it protect individuals
against the State?60 Indeed in a traditional tribal society such as Saudi Arabia, an
individual’s autonomy may be breached by their tribe, their family and/or by the
State.61 For example, a woman in Saudi Arabia, or Qatar, is not allowed to freely
choose her life partner. Her family and tribe decide this for her. She is also not
allowed to drive a car62 or travel alone because of State’s laws. In such societies the
role of an effective legal system to protect individuals based on rule of law
principles becomes more crucial and complicated. One important question in
relation to the establishment of the rule of law system in Muslim countries in the
Middle East is whether such a system can be established in countries with different
conceptual constructs than those found in a Western liberal democracy, particularly
where the concept of law is not the same.

III. THE NATURE OF LAW IN THE ISLAMIC LEGAL SYSTEM


Islam has its own system of law with certain unique characteristics, such as the
sacredness of certain legal principles and divine origin of its traditional legal

Theoretical Foundations of Liberalism, 37 PHIL. Q. 127, 128 (1987). On liberalism and equality see
RONALD DWORKIN, A MATTER OF PRINCIPLE 191 (1985).
57. MILL, supra note 56, at 16.
58. TAMANAHA, supra note12, at 33.
59. TAMANAHA, supra note12, at 33.
60. As an example, for the rule of law in Saudi Arabia see Hossein Esmaeili, On a Slow Boat
Towards the Rule of Law: The Nature of Law in the Saudi Arabian Legal System, 26 ARIZ. J. OF INT’L &
COMP. L. 1 (2009).
61. Id. at 16-19.
62. Recently (early 2008), women were permitted to drive a car in Saudi Arabia under certain
conditions, including permission from their fathers or husbands, and at limited times (Saturdays –
Wednesdays from 7am to 8pm). See Women in Saudi Arabia will be Free to Drive by the Year-End,
ASIAN NEWS INT’L, Jan. 21, 2008.
340 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

system. In this section, after defining certain important Islamic legal terms, the
nature of law in Islam will be discussed.

A. Defining Terms

The four terms ‘religion of Islam’ (Din), Islamic jurisprudence (fiqh), ‘Islamic
law’ and Shari’ah 63 are not the same. There may be differences between the
religion of Islam -- which includes beliefs and rituals -- and the study of Islamic
jurisprudence (fiqh) and Shari’ah or Islamic law. Islam refers to the entire religion,
including beliefs, rituals, morality and law.64 Fiqh is the study of Islam to infer
legal and religious principles, and Shari’ah is divided into principles of beliefs
(aqayid), transactions (muamilat), rituals (ibadat) and punishments (uqubat). Given
that Shari’ah is a system of religious norms that includes many non-legal elements,
there are diverse positions on the definition and nature of law in Islam that
researchers interested in Islamic law need to carefully consider. The modern
concept of law in Islam, which may include various tribal and moral norms of
different Muslim societies, may be different from traditional or pure theoretical
Shari’ah or Islamic law. Further, the definition of Islam may be different according
to the various juristic schools of law. Nonetheless, a body of diverse legal
principles originated with the advance of Islam, and application in parts of various
Muslim societies may well be practicable. The differences between Islamic schools
and the variety of juristic interpretations and legal reasoning (ijtihad) may be
branded as a divergence (iktilaf) that leads to a latitude of interpretation (towsi’a),
which may be termed as diversity within unity.65
Islamic jurisprudence, or fiqh, means understanding of Shari’ah. What is
called “legal theory” in Western legal literature is part of Islamic philosophy. There
have been conflicts between philosophy and fiqh in the history of Islamic
scholarship.66 This means that fiqh was developed mainly as an area of Islam that

63. The term ‘sharia’ in Islamic literature is used in several different ways: In one sense, sharia is
used against ‘tariqa’. Tariqa refers to the mystical aspect of Islam and the practice of religious rituals.
Sharia also refers to religious knowledge. Sharia may also be used in a general sense to refer to Islamic
jurisprudence (fiq) including all Islamic rules, rituals and law and, in Western literature, is specifically
used to refer to the legal system of Islam. For an analysis of the meaning of sharia, fiq and tariqa see
ABDULLA H. SAEED, ISLAMIC THOUGHT: AN INTRODUCTION 43-45, 75-76 (2006).
64. While some Islamic scholars have argued that the nature of religion as revealed to the
Prophet of Islam must be distinguished from the practices of Muslim societies, a more persuasive view
is that ‘Islam’ in the contemporary world has come to mean the understanding and practice by Muslims
of their religion. See ABDULLAHI AHMED AN-NA’IM, ISLAM AND THE SECULAR STATE 111 (2008);
Shirin Ebadi, Advancing the Consensus: 60 years of the Universal Declaration of Human Rights:
Keynote Address: Islam, Human Rights, and Iran 23 EMORY INT’L L. REV. 13, 17 (2009); Riffat
Hassan, On Human Rights and the Qur’anic Perspectives, in HUMAN RIGHTS IN RELIGIOUS TRADITIONS
51-65 (Arlene Swidler ed., 1982).
65. See COULSON, supra note 4, at 102; WAEL HALLAQ, A HISTORY OF ISLAMIC LEGAL
THEORIES 202 (1997); MOHAMMAD HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 229 (3d
ed. 2003); Reza Afshari, An Essay on Islamic Cultural Relativism in the Discourse of Human Rights 16
HUM. RTS. Q. 235, 271(1994).
66. Fiqh, which is understanding of Shari’a and the method of inferring legal and non-legal (such
as moral and ethical) principles from Islamic textual and non-textual sources, is translated in English to
‘Islamic jurisprudence.’ Although not an accurate translation it has been widely adopted in English
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 341

tried to understand Shari’ah without entering into the area of “jurisprudence,” or


the philosophy of law in its Western conception. In order to infer principles of
Shari’ah a set of rules were developed in Islamic jurisprudence known as usul al-
fiqh -- which is translated in English as “principles of jurisprudence.”67 There are
only a few works in English and in Arabic, on proper legal theory.68
The closest area of scholarship to Western legal theory is that section of
Islamic philosophy that discusses wahy (revelation) and sources of Shari’ah law.
This part is also discussed in usul al-fiqh, but it does not generally raise questions
about fundamentals and the nature of law; however, in philosophy, the purpose and
nature of law and wahy (revelation) will be discussed. Both Muslim scholars and
jurists from the early stage of Islam69 and Western scholars studying Islam have
worked in this area.70
Most Muslims consider law as divine and sacred. Legal principles revealed in
the Quran included in the Sunna of the Prophet, are immune from critical
evaluation. The application and interpretation of basic legal principles of Islam, and
the nature of law in Islam, however, has been the subject of various discussions
among Muslim jurists. Similar to the religion of Islam its legal system, or Shari’ah,
is not monolithic. Indeed principles of Shari’ah are the subject of contested views
in the history of Islam and in the contemporary world.
In order to understand the nature of law in Islam, the relationship between law
and religion in Islam, the divine aspect of Islamic law, sacredness of law, and
sources of Islamic law must be analyzed. The following sections, considering
religion and law, divine aspect of law, and sacredness of law, are separate to
highlight the fundamental importance of each aspect in understanding the legal
system of Islam, and their implications for the development of rule of law based
systems in Muslim countries. Also, the relationship between religion and law in
Islam is unique. While generally in Western literature scholarly work on law and
religion is mainly concerned with the role of religion in the state and legal system,71
in Islam law and religion are so closely related that it can be argued that one cannot
be considered in isolation from the other. The divine aspects and sacredness of
Islamic law are particularly important as these characteristics may prevent critical
analysis of many traditional principles of Islamic law, and therefore may be
obstacles in the development of a rule of law based system in Muslim countries.

Islamic legal literature. There is some overlap between the concepts of fiqh and jurisprudence (legal
theory), however Islamic legal theory is more a subject of Islamic philosophy, which has been disliked
by most Foqah (Muslim jurists).
67. For example, Kamali’s book in English on ‘Principles of Islamic Jurisprudence’ has nothing
to do with legal theory in the Western sense: KAMALI, supra note 65.
68. See e.g., NOEL J. COULSON, CONFLICT AND TENSION IN ISLAMIC JURISPRUDENCE (1969);
HALLAQ, supra note 4; WEISS, supra note 4; Frank Griffel, The Harmony of Natural Law and Shari’a in
Islamist Theology, in SHARI’A: ISLAMIC LAW IN THE CONTEMPORARY CONTEXT 38 (Abbas Amanat &
Frank Griffel eds., 2007).
69. See infra note 92.
70. See e.g., COULSON, supra note 68; GOLDZIHER, supra note 4; THEODOR NÖLDEKE, DAS
LEBEN MOHAMMEDS (1863); SCHACHT, supra note 4.
71. See, e.g., LAW AND RELIGION IN THEORETICAL AND HISTORICAL CONTEXT (PETER CANE, ET
AL. EDS, 2008).
342 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

B. Religion and Law

Establishing the rule of law and its meaning is, to a great extent, dependent on
the nature of law in Islam, particularly the relationship between religion and law.
Islamic theology defines principles of belief and law of Islam. It prescribes what a
person shall do or what shall be refrained from.72 In practice, law in Islam is part of
a religious system in which legal rules and rituals merge.73 According to Seyyed
Hossein Nasr “religion to a Muslim is essentially the Divine Law.”74 Indeed this
was the original concept of law in the early history of Islam. The important factor
in the determination of the concept and nature of Islamic law is that under Islam all
acts are divided into five classes. These are obligatory (wajib), recommended
(mustahabb or mandoub), permitted (mubah), disliked (makruh) and forbidden
(haram).75 The omission of the first category is punishable. This means that even
omissions of rituals can be punished under an Islamic State.76 The second, third and
fourth categories are more within the realm of religion and are rewarded or
disapproved, but not sanctioned. The last category of actions (haram) is
punishable.77 According to Joseph Schacht, “the central feature that makes Islamic
religious law what it is, that guarantees its unity in all its diversity, is the assessing
of all human acts and relationship, including those which we call legal, from the

72. DUNCAN B. MACDONALD, DEVELOPMENT OF MUSLIM THEOLOGY, JURISPRUDENCE AND


CONSTITUTIONAL THEORY 66 (Russell & Russell 1965) (1903).
73.
Islam is a faith in the realm of the public. Sharia, the sacred law of Islam, regulates religious
practice with a view to maintaining the individual’s well-being through his or her social well-
being. Hence, its comprehensive system deals with the obligations that humans perform as
part of their relationship with the Divine Being and duties they perform as part of their
interpersonal responsibility. Public order must be maintained in worship, in the market place,
and all other arenas of human interaction.
Abdulaziz Sachedina, Guidance or Governance? A Muslim Conception of “Two-Cities,” 68 GEO.
WASH. L. REV. 1079, 1079 (2000).
74. SEYYED HOSSEIN NASR, IDEALS AND REALITIES OF ISLAM 95 (1966). According to Imam
Khomeini, the founder of the Islamic Republic of Iran, “Islam has a system and a program for all the
different affairs of society: the form of government and administration, the regulation of people’s
dealings with each other, the relations of state and people, relations with foreign states and all other
political and economic matters. The mosque has always been the centre of leadership and command, of
examination and analysis of social problems.” HAMID ALGAR, ISLAM AND REVOLUTION: WRITINGS AND
DECLARATIONS OF IMAM KHOMEINI 249-50 (1981).
75. AL AMIDI, SEIF AL DIN ABI AL HASSAN ALI IBN ABI ALI IBN MOHAMMAD, AL AHKAM FI
USUL AL AKHAM [THE PRINCIPLES OF ISLAMIC RULES] vol. 1, 85 (2005).
76. Tazir is a category of punishment for conduct where no specific punishment (hadd) has been
provided by the Quran or Sunna and is defined as ‘punishment imposed by the judge (qadi) or the state
(hakim) for a crime or a sin where no punishment is provided by sharia’: SEYYED AL SABIQ, FIQ AL
SUNNA [THE SUNNI JURISPRUDENCE] vol. 3, 393 (1998). Failing to follow rituals such as praying
(without legitimate cause) is a sin in Islam. In practice this was only applied by the Taliban government
in Afghanistan. In certain areas of Saudi Arabia such as in Mecca and Medina, the religious police try
to enforce proper religious rituals according to the State edict and prohibit any rituals inconsistent with
Wahhabi teachings.
77. IBN RUSHD, ABU AL WALID & MUHAMMAD IB AHMED IBN MUHAMMAD IBN AHMED,
BEDYAT AL MUJTAHID WA NIHAYAT AL MUQTASID [THE BEGINNING OF JURISPRUDENCE] vol. 1, 5
(1988); MACDONALD, supra note 69, at 73; HALLAQ, supra note 65; REUBEN LEVY, THE SOCIAL
STRUCTURE OF ISLAM 202-03 (2d ed. 1969).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 343

point of view of the concepts


‘obligatory/recommended/indifferent/reprehensible/forbidden.’”78
This means that all human conduct is classified under one of the five
categories. The general criteria for determining conduct types are subject to certain
principles that Muslim jurists (foqah – plural of faqih) have developed called
‘principles of Jurisprudence’ or, in Arabic, ‘usul al fiq.’ These principles are
applied to infer the relevant (hukm) principle relating to each conduct.79 If no
principle can be found to apply to a conduct within a specific jurisprudence then
the conduct is considered as permitted (mubah), and deemed legally indifferent.
Under this approach the omission of obligatory duties, whether ritualistic or
not, and the commission of forbidden acts are sins, and hence illegal and
punishable by law.80 All other activities, however, whether recommended,
permitted, or disliked are legally indifferent. This is the traditional and orthodox
view of Islamic law. Indeed Islamic jurists divide Shari’ah, known as Islamic law
in the West, into two categories: ibadat (or rituals) and muamilat (literally meaning
transactions but which can be translated as proper law).81 Theoretically, law and
religion in Islam, to a great extent, overlap. A body of rules and regulations,
applicable to certain conduct not subject to prohibition (Haram) or obligatory
conduct (wajib), however, has been developed in response to the new wave of
modern life. These systems of rules in Muslim societies may not be called Islamic
law, but have nevertheless been adopted into the Islamic legal system. This body of
law, strictly speaking, is not traditional Shari’ah or Islamic law but is a part of the
legal system of modern Muslim society. Indeed, in almost all Muslim countries,
including Saudi Arabia, the majority of rules applicable in the day-to-day
relationships between individual Muslims, such as modern commercial activities,
travel, modern entertainment, information technology matters, telecommunication,
modern education, and international trade and transactions are what can be labeled
as ‘legally indifferent’ under Shari’ah law. The other part of the legal system such

78. SCHACHT, supra note 4, at 200.


79. AL AMIDI, supra note 75, at 8.
80. Some scholars, such as Joseph Schacht and Abdulaziz Sachedina, have stated that courts
under Sharia may not have jurisdiction in relation to personal acts unless matters of public welfare are
involved or there is a claimant. See SCHACHT, supra note 4, at 189-90, and SACHEDINA, supra note 73,
at 1079. Both Schacht and Sachedina failed to recognize the difference between the concept of crime
under Sharia and the requirements of evidence and procedure in trials and sentencing. There is no doubt
that if personal and private acts are not brought to the attention of the court then no action will be taken.
However, the concept of law remains the same. Under Islam a sin is a crime and is punishable even if it
is the most private act. According to fiqh (Islamic jurisprudence) any sin (zanb) for which there is no
specific punishment in Sharia is punishable under tazir. Foqaha (Muslim jurists) in jurisprudence texts
state that tazir means ‘al tadib ala zanben la hadd Fiheh wa la kaffareh’ (tazir is a punishment applicable
to a sin for which there is no punishment or expiation). See SABIQ, supra note 76, 15 393.
81. Islamic teachings can be divided into four categories namely beliefs, moralities, rituals and
non-ritual Sharia, which is called jurisprudence of transactions (fiq al muamilat). Ayatollah Mohsen
Kadivar, Reconstruction of Wisdom: A Condition for Reconciling Religion and Human Rights 6 (May
16, 2007) (unpublished paper presented at the Human Rights Conference, Mofid University, Qom, Iran,
on file with the author).
344 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

as different aspects of personal law (for example marriage, divorce and trusts)82 and
public law (government, constitution, law making processes), however, are more
influential in certain societies, such as in Saudi Arabia.
In fact, Muslim societies, Islamic states, jurists and ordinary Muslims are, in
general, in an unsettled status as to the relationship between traditional Islamic law
and modern, and mainly positivist law, and how it specifically applies to certain
aspects of a Muslim individual’s life in the modern world. Some aspects, including
marriage, divorce, and custody of children, are mainly regulated by what can be
precisely labeled as Islamic law. Other aspects are subject to provisions that are not
Islamic law although they also may not necessarily contradict Islamic law. While
principles of Islamic law govern family law, inheritance, trusts, contract, criminal
law and certain other areas, modern regulations regulate matters such as
corporations, broadcasting law, health law, food production, travel, immigration
and environment.83
The important point with respect to the relationship between law and religion
in Islam and the establishment of the rule of law system in a Muslim country is that
in such a system religious authorities -- individuals -- have a special status and may
be beyond the law. While the relationship between law and religion in the Western
world is more or less settled, it is not in the Islamic world. Indeed there are
significant differences between the status of religion in the West -- taken to mean
Christianity -- and in the Muslim world. In the West, Christianity distanced itself,
to some extent, from Mosaic law.84 Roman law -- not Christian law -- was the legal
system of the Christian world, and canon law developed alongside the Roman
law.85 Common law in England developed based on Anglo-Saxon customary law
and the orders of the kings.86 Legal philosophy in the West developed the natural
law theory to include basic Christian ideas. In the Islamic world, however, law,
philosophy, legal theories and the idea of the State developed differently. Islam was
a spiritual religion for only ten years as a faction of a major Arabian tribe (Quraish)
in the city of Mecca (610-620 A.D.). Then it became a complete political, legal and
military force in the first Muslim state of Medina (620-633 A.D.). The Prophet of
Islam was head of State, the chief justice, the commander of the Army, the

82. See generally, ISLAMIC FAMILY LAW IN A CHANGING WORLD: A GLOBAL RESOURCE BOOK
(Abdullahi Ahmed An-Na’im ed. 2002); JAMAL J.A. NASIR, THE ISLAMIC LAW OF PERSONAL STATUS
(3d ed. 2009).
83. Basic Law of Governance, Royal Order No. A/90, 27 Shaban 1412 H (Mar. 1 1992), art. 48
(English translation available at http://www.saudiembassy.net/about/country-information/laws/The_Ba
sic_Law_Of_Governance.aspx) states: “The courts shall apply rules of the Islamic Shari’ah in cases that
are brought before them, according to the Holy Qur’an and the Sunna, and according to laws which are
decreed by the ruler in agreement with the Holy Qur’an and the Sunna.”
84. Those “who have not the law do by nature what the law requires.” 2 Romans 2:14. But there
are many similarities between Talmudic law and Jewish history, and Islamic law and history. See
WEISS, supra note 4, at 2 – 4.
85. GEORGE MOUSOURAKIS, THE HISTORICAL AND INSTITUTIONAL CONTEXT OF ROMAN LAW
418-33 (2003).
86. On the history and development of English common law, see W. S. HOLDSWORTH, A
HISTORY OF ENGLISH LAW (3d ed. 1922).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 345

mediator and the spiritual leader who was also the Messenger, revealing the words
and commands of God.
Later in the history of Islam the close relationship between religion and law
was preserved in the Muslim societies. Although in practice Kings, Caliphs and
other rulers may not have observed the public and constitutional law of Islam,
religious authorities enforced Shari’ah law -- regulating private relationships -- and
criminal law of Islam until the collapse of the Ottoman empire. When modern
European codes were introduced in almost all the Muslim Middle Eastern countries
except Saudi Arabia.

1. Divine Aspects of the Law

A fundamental feature of law in Islam, and one of the major challenges to law
reform and the potential institution of a rule of law based system in Muslim
countries, is the divine source of Islamic law. The significance of this aspect is that
Islam is the only religion where its followers believe that the Quran is the words of
God. In practice this means that the Quranic laws are God’s direct commands.
According to Seyyed Hossein Nasr:

[I]n the Islamic perspective, Divine Law is to be implemented to regulate


society and the actions of its members rather than society dictating what
laws should be. The injunctions of Divine Law are permanent, but the
principles can also be applied to new circumstances as they arise. But the
basic thesis is one of trying to make the human order conform to the
Divine norm, not vice-versa . . . . As in Judaism, for Islam Divine Law is
more central than theological thought to the religious life . . . . Even those
who have sought to go beyond the formal level, through the tariqa to the
absolute Truth, which transcends all forms, have never ceased to revere
the sharia [sic] and to practice it. The greatest philosophers of Islam from
Avicenna to Averroes practiced the sharia [sic], so did the greatest saints
and mystics . . . .87

Professor Nasr presents an argument in relation to the depth and richness of


Islam’s spiritual and social values. He fails, however, to address how a legal and
political system based on Shari’ah can evolve and operate without being debated
and scrutinized at least within legal institutions. He offers no practical model of an
Islamic State based on Shari’ah, whether historical or modern.
According to Noel Coulson, in Islam, “law is the command of God, the
acknowledged function of Muslim jurisprudence and from the beginning, was
simply the discovery of the terms of that command.”88 This is true in the sense that
in Islam it has been accepted that the Quran is the word of God, and Muhammad

87. SEYYED HOSSEIN NASR, THE HEART OF ISLAM: ENDURING VALUES FOR HUMANITY 117-19
(2002).
88. COULSON, supra note 4, at 75.
346 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

directly associated with revelations from God. In traditional Islamic jurisprudence,


God is “the ultimate sovereign and possess[es] all the original rights and hence [is]
the first source of law.”89
In spite of the fact that the majority of Muslim scholars accept that the Quran
is the word of God revealed to the Prophet Muhammad,90 and due its divine source
cannot be questioned, there have always been discussions about the interpretation
of the Quran and the nature of revelation.91 The earliest debate over the nature of
the Quran started during the Abbasid Caliph Mamun (reign from 813-833 A.D.). At
that time the view of the majority of Muslim jurists was that the Quran was eternal,
but a theological group, known as the Mutazila, argued that God created the
Quranic verses, rather than it being eternal.92 At the time the dominant view was
that the text of the Quran was eternal. The Mutazila’s rationalism was opposed,
particularly by Ahmad Ibn Hanbal,93 and their theology was not accepted by the
majority of ulema (scholars), but was accepted by the influential Shia scholars. The
theology of Mutaliza was rational and according to a contemporary Muslim
commentator, Mutaliza were liberals.94
In more recent times contemporary Muslim scholars have been debating the
nature of revelation and prophethood and hence the Islamic legal principles from
which these are derived. Apart from Shah Waliallah95 and Mahmoud Mohamed
Taha,96 Allama Muhammad Iqbal97 and a number of other Muslim scholars have
expressed innovative views about revelation and the Quran. Abdullahi Ahmad An

89. WEISS, supra note 4, at 24.


90. See Qu’ran 26:192-94. See also, for example, SEYYED HOSSEIN NASR, ISLAM: RELIGION,
HISTORY, AND CIVILIZATION 37 (2003), who argues that “The Quran is the central theophany of Islam,
the verbatim Word of God revealed to the Prophet by the archangel Gabriel and transmitted by him in
turn to his companions, who both memorized and recorded it.”
91. See FAZLUR RAHMAN, ISLAM 2 (1966); ABDULLAH SAEED, ISLAMIC THOUGHT: AN
INTRODUCTION 14 (2006).
92. In the history of Islam, there were four theological theories about the nature of sin, God, and
the Qu’ran. They were Khavarej [Kharijits], Morjayoun [Murjiites], the Mutazili, and the Asharit. The
Kharijits had a very extreme interpretation of religion, and their interpretation faded in its early stage.
The more moderate position of the Murjiites rejected any relationship between being a Muslim and
committing sins. The Mutazili emphasized reason and logic, and the use of rational deduction as tools
in interpretation of the Qu’ran. During the theological debate amongst different schools of
philosophical thought, the Mutazili took the position that the Qu’ran as the words of God should not be
considered literally. In contrast, according to Asharits and scholars such as Ibn Hanbal, the words of the
Qu’ran were literal words of Allah and were eternal. See George C. Anawati, Philosophy, Theology and
Mysticism, in THE LEGACY OF ISLAM 350, 359-66 (Joseph Schacht and Clifford E. Bosworth eds.,
1974); RAHMAN, supra note 91, at ch. 5; SAEED, supra note 91, at ch. 5. For further discussion of the
Mutalizi, see NASR HAMID ABU ZAYD, AL-ITTIJÂH AL-`AQLÎ FI AL-TAFSÎR: DIRÂSA.
93. On Ahmad ibn Hanbal, see CHRISTOPHER MELCHERT, AHMAD IBN HANBAL (2006).
94. Asghar Ali Engineer, On Developing Liberation Theology in Islam, in ISLAM AND
REVOLUTION 13, 15 (Asghar Ali Egineer ed. 1984).
95. On Shah Waliallah, see THE SOCIO-POLITICAL THOUGHT OF SHAH WALI ALLAH
(Muhammad al-Ghazali ed., 2001). Also see, infra note 119.
96. MAHMOUD MOHAMED TAHA, THE SECOND MESSAGE OF ISLAM (Abdullahi Ahmed An-
Na’im trans., 1996).
97. See ALLAMA MUHAMMAD IQBAL, THE RECONSTRUCTION OF RELIGIOUS THOUGHT IN ISLAM
(1989).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 347

Na’im,98 Nasr Hamed Abu Zeid,99 and Abdolkarim Soroush100 are the most well
known contemporary Muslim scholars who have frequently commented on the
nature of Quranic revelation. Recently Nasr Hamed Abu Zeid and Abdolkarim
Soroush argued that the words of God as revealed to the Prophet were expressed
using the Prophet’s own words.101
Indeed, there are three views in relation to the nature of revelation (wahy) in
the Muslim world. The official and most popular view is that the Quranic verses
are the words of God revealed to the Prophet Muhammad and the Prophet recited
the exact words of Allah to the people.102 The second view is that the content of the
Quran had been revealed to the Prophet, but he used his words to transfer the
message of Allah to the people.103 The third view states that the Quran is the words
of the Prophet, but because the Prophet of Islam has a divine personality his words
are words of God. 104 Under any of these views, divine revelation guides what the
prophet of Islam said or did.

2. The sovereignty of God

Apart from the nature of revelation and the status of private law, the doctrine
of sovereignty of God may also influence Islam’s public law principles. Under
theories of state in Islamic law God is the only sovereign, the only source of law,
and the authority.105 Many Muslim scholars base their theories of the State and

98. See Abdullahi Ahmed An-Na’im, Introduction, in MAHMOUD MOHAMED TAHA, THE
SECOND MESSAGE OF ISLAM (Abdullahi Ahmad An’Naim trans., 1996).
99. NASR ABU ZAYD, RETHINKING THE QUR’AN: TOWARDS A HUMANISTIC HERMENEUTICS
(2004); NASR HAMID ABU ZAYD, NAQD AL-KHITÂB AL-DÎNÎ [CRITIQUE OF ISLAMIC DISCOURSE] (4th
ed., 1998).
100. ABDOLKARIM SOROUSH, BAST TAJROBEH NABAVI [THE EXPANSION OF PROPHETIC
EXPERIENCE] (Nilou Mobasser trans., 2009).
101. Id.; NASR HAMID ABU ZAYD, AL-ITTIJAH AL-’AQLI FI AL-TAFSIR: DITASA FI QADIYYAT AL-
MAGAZ FI’L QUR’AN ‘IND’L MU’TAZILAH (THE RATIONAL TREND IN EXEGESIS: A STUDY OF THE
PROBLEM OF METAPHOR IN THE QUR’AN BY THE MU’TAZILITES) (4th ed. 1998).
102. Proponents of this approach cite several verses of the Quran in support of their propositions.
See, e.g., Quran 4:82 (“Will they not ponder on the Koran? If it had not come from God, they could
have surely found it in many contradictions.”); Quran 12:1 ( “These are the verses of the glorious Book
…”); Quran 12:2 (“Verily, we have revealed down the Quran in the Arabic tongue so that you may grow
in understanding.”).
103. See generally NASR HAMID ABU ZAYD, MAFHUM AL-NASS (1990).
104. For a discussion of different contemporary views on the revelation of the Quran and an
informative discussion of ‘revelation’ in Islam, see SAEED, supra note 91 at ch. 3. See also Abdulla
Saeed, Fazlur Rahman: A Framework for Interpreting the Ethico-Legal Content of the Qur’an, in
MODERN MUSLIM INTELLECTUALS AND THE QUR’AN 37, 37-66 (Suha Taji-Farouki ed., 2004); Akbar
Gangi, Rowshanfekriy Faqihaneh [Jurisprudential Intellectualism] (unpublished manuscript) (on file
with author).
105. “Allah is the One who has sent the Messenger with guidance and the religion of truth to
prevail over all religions....” Quran, 48:28. See also COULSON, supra note 4, at 75; KHALED ABOU EL
FADL, ISLAM AND THE CHALLENGE OF DEMOCRACY 4 (2004); NASR, supra note 87, at 1; SAEED, supra
note 91, at 43.
348 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

government on this principle: that God is all-powerful, the ultimate owner of the
heavens and earth, and the sole legislator.106
According to Article 2 of the Iranian Constitution, “the Islamic Republic is a
system based on belief in One God (there is no God but Allah), and the exclusive
sovereignty of God, the acceptance of His rule, and the necessity of obeying His
commands.”107 Maudidi argues that in a Muslim society divine sovereignty requires
that God’s law, or Shari’ah, and not human-made law will govern.108
The concept of sovereignty of God is well established in Islamic theology and
Kalaam.109 In terms of law it is arguable that the basic principles of Islamic law are
based on divine principles in the Quran and the Sunna, or at least inspired by
principles of the Quran and the Sunna. Technically, however, claiming that God is
the sole legislator and that human-made law has no legitimacy is a fiction. The
human being does not have direct and clear access to the will of God, particularly
after the severance of the Revelation, which occurred after the death of the
Prophet.110 Access to divine legislation through the limited number of Quranic
verses on legal matters, as is the Sunna, is blended with the subjectivity of human
beings.111 This has even been observed in the Constitution of Iran, which is the only
written constitution based on theocratic principles. Article 56 of the Iranian
Constitution states that: “Absolute sovereignty over the world and man belongs to
God, and it is He Who has made man master of his own social destiny. No one can
deprive man of this divine right, nor subordinate it to the vested interests of a
particular individual or group.”112
Although Muslims, including scholars and philosophers, universally accept the
principle of sovereignty of God, there are substantial differences in relation to how
the will of God can be applied in a Muslim society. A centralized Islamic state
ruling over all, or the majority, of Muslim territory existed only for short periods of
time in the history of Islam: during the Righteous Caliphates (632-661 A.D.), and
during the very early stages of the Omayyad (661-750 A.D.) and Abbasid (750-
1258 A.D.) Caliphates.113 After that different local and sectarian rulers governed the
Muslim world during each point of time.

106. “And verily those decrees guide you to my straight path, so follow the way and do not follow
other paths ….” Quran 6:153.
107. QANUNI ASSASSI JUMHURI’I ISLA’MAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
OF IRAN] 1358 [1980], art. 2(1).
108. SAYYID ABUL A’LA MAUDIDI, THE ISLAMIC LAW AND CONSTITUTION 258 (Khurshid Ahmad
ed. & trans., 7th ed. 1980) (1955).
109. An area of Islamic jurisprudence concerned with methodological discussions about words of
God, the existence of God and dialectic Islamic philosophy. On kalam, see HARRY A. WOLFSON, THE
PHILOSOPHY OF THE KALAM 1-49 (1976).
110. Khaled Abou El Fadl, Islam and the Challenge of Democratic Commitment, 27 FORDHAM
INT’L L.J. 4, 16 (2003-2004).
111. Id.
112. QANUNI ASSASSI JUMHURI’I ISLA’MAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
OF IRAN] 1358 [1980], art. 56.
113. See generally THE CAMBRIDGE HISTORY OF ISLAM 4 (Peter Malcolm Holt et al. eds., 1977);
ANTONY BLACK, THE HISTORY OF ISLAMIC POLITICAL THOUGHT: FROM THE PROPHET TO THE PRESENT
(2001).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 349

In practice States, rulers and powerful individuals in the history of Islam have
exploited the idea of sovereignty of God against people and individuals. Therefore,
the notion of sovereignty of God should be reconciled with human experience,
intelligence, and the will of people in order to avoid the misuse of power by states
and rulers. Most Muslim rulers, states, governments and authorities during the last
fifteen centuries have claimed legitimacy on behalf of God. In some stage of
Islamic history, around twelfth and thirteenth centuries, for example, when a weak
central caliphate still existed in Baghdad, the Islamic world was ruled by numerous
local and independent rulers who were mainly fighting with each other. Almost all
of them claimed legitimacy on behalf of God.
From an Islamic theology perspective human beings may not have perfect
access to the will of God, and may not be able to be the executor of the Divine Will
without involving their subjectivity in the process.114 According to a number of
progressive Muslim jurists the Prophet of Islam did not have an intention to apply a
legal system over all Islamic territories for all time; rather he provided general
principles of law within the spirit of Islamic principles for Muslim societies to
develop based on their wisdom and human experience.115
The interpretations of the Qu’ran, and other sources of Shari’ah, have always
been the subject of contested views amongst Muslim scholars and theologians. The
position adopted by a society and its legal system in relation to the nature of
revelation, and the interpretation of the Qu’ran, and other sources of law, is an
essential consideration in establishing a rule of law system within a society’s legal
system. In practice though, as discussed here, while the majority of the principles
underlying Shari’ah law are clearly not divine, Muslims consider divine certain
basic principles that are expressly mentioned in the Quran. This may lead to certain
legal principles being considered sacred, and hence outside of the limit of critical
evaluation.

3. Sacredness of Law

As we have seen, the divine nature of law means that under traditional
Shari’ah Allah makes the law, and God is the source of law-making through the
Qu’ran and the Prophet. In the history of Islam, however, apart from God, the
Prophet and the Qu’ran, many other institutions and beliefs became ‘sacred.’
Islamic law in principle is a “sacred legal system.”116 This means that critical
analysis of certain principles -- including legal principles -- may lead to blasphemy
or apostasy.117

114. ABOU EL FADL, supra note 110, at 16.


115. See infra note 119.
116. This has been noted by certain Western commentators, see, for example, SCHACHT, supra
note 4, at 202.
117. According to Islamic Jurists (foqaha) rejecting or casting doubt on rules stated by the Quran
or the Sunna in preference for modern positivist rules is considered an example of kofr (rejecting Islam
by a Muslim) and is a crime under Islamic law as noted by a contemporary Muslim jurist. SABIQ, supra
note 76, at vol. 2, 304.
350 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

In recent years, and indeed in the last two hundred years, certain Islamic jurists
have tried to limit the ‘sacredness’ of Shari’ah into areas of towhid (oneness of
God), al aqayed (Islamic beliefs) and ibada (worship) to find ways to examine the
application of certain principles of Shari’ah.118 Both governments in Muslim
nations and Islamic jurists have tried to exercise this. Governments have abandoned
the application of certain legal principles in traditional Shari’ah and jurists have
tried to find certain methods to reform and adjust the traditional principles.119 As a
result, some Islamic rules have been abandoned, though not rejected outright by
Muslim societies. In other words, they are not practiced though they may be
prescribed in the form of written law.120
It can be concluded that under traditional Islamic law religion and law overlap
in most parts. In all Muslim countries, however, including Saudi Arabia and Iran,
most day-to-day laws are what can be labeled as civil or indifferent laws. But in
Saudi Arabia those aspects of law that are based on the religion of Islam are
considered divine and sacred, and therefore may not be the subject of critical
evaluation. Many of those principles put certain peoples beyond the limit of the
law, and are hence inconsistent with a rule of law system. To establish a legal and
political system based on the rule of law doctrine legal principles applicable in the
society must not be immune from critical evaluation, and so must not be sacred.

118. Iranian Philosopher Abdolkarim Soroush is a contemporary Muslim intellectual whose


writing and thoughts are attracting attention in both the Muslim and non-Muslim world. He argues that
if religion plays any role in the public affairs of Muslim society its legal principles should not be
immune from critical evaluation because of the ‘sacracy’ of religion. See generally: John Cooper, The
Limits of the Sacred: The Epistemology of ‘Abd al-karim Soroush, in ISLAM AND MODERNITY: MUSLIM
INTELLECTUALS RESPOND 38-56 (John Cooper et al eds., 2000).
119. An example of a Muslim jurist who, for the first time in Islamic history, attempted to
reconcile Islamic legal principles with modern requirements is the eighteenth century Muslim jurist
from India, Shah Waliallah. He argued that the Prophet of Islam never intended to universally apply a
legal system that was designed for a specific society at a specific point in time (specifically, Arabia of
the sixth century). Rather, he established a system and urged Muslims to follow his principles in
establishing their own system of rules within the general spirit of Islam. See generally MUHAMMAD AL-
GHAZALI, THE SOCIO-POLITICAL THOUGHT OF SHĀH WALĪ ALLĀH (2001). Shah Waliallah’s position
on legal theory was followed by many Muslim jurists and philosophers such as Allama Muhammad
Iqbal in his famous book. See generally SIR MOHAMMAD IQBAL, SIX LECTURES ON THE
RECONSTRUCTION OF RELIGIOUS THOUGHT IN ISLAM (1930). This book has been published and edited
in various editions in different languages. See, e.g., ALLAMA MUHAMMAD IQBAL, THE
RECONSTRUCTION OF RELIGIOUS THOUGHTS IN ISLAM (M. Saeed Sheikh ed., Institute of Islamic
Culture 1996). For an informative discussion of modern interpretations of the Quran, particularly on the
legal principles established in the Quran see SAEED, infra note 123.
120. In the majority of Muslim countries, such as Egypt, Jordan, Kuwait, Bangladesh, and
Indonesia only certain areas of Islamic law, such as marriage and divorce, form part of the legal system.
In those few countries where Islamic law is the principal component of the legal system, such as Saudi
Arabia and Iran, many Islamic rules prescribed in the Quran and the Sunna are not applied in practice.
For example, the Iranian criminal code provides for hand amputation in case of theft, as prescribed in
the Quran 5: 38, but over the past two decades the punishment has rarely been applied and never in the
last few years. See QANOO E MUJAZIT ISLAMI [Islamic Criminal Code], art. 201 §1370, 1991 (Iran).
Also paying or taking Riba (usury) is prohibited by the Quran but Iranian banks pay and take one of the
highest rates of interest in the world. See Quran 2:276. Similarly in Saudi Arabia, Islamic rules relating
to jizya (a special tax imposed on non-Muslims) prescribed by the Quran is not practiced. See Quran
9:29. Although slavery has been abrogated in all Muslim countries since early in the twentieth century,
sections on ‘slavery’ are still being taught in Islamic tertiary schools and jurisprudence centers in both
Saudi Arabia and Iran, but are not practiced in any Muslim country.
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 351

While certain Shari’ah principles relating to God, beliefs, and ritual may be sacred
for individual Muslims, asserting the sacredness of legal principles, or the conduct
of any individual in general, is in sharp contrast to the rule of law.

C. Sources of Law

Sources of law are one of the most important functions of any legal system. In
two of the major modern legal systems of the world, civil law and common law, the
legislature is the sovereign law-maker. There are other law-making institutions in
both common and civil law systems, however, but other sources, such as case law
in common law, are subordinate to the legislature’s legislation.121 In Islamic law
there is a pyramid of sources, and the Quran is at the apex. The process of creating
legal rules in the Islamic legal system, however, is far more complex than is
commonly thought. In most Islamic law textbooks in English, as well as textbooks
on Islamic jurisprudence in Arabic, the assumption is that there are four major
sources of Islamic law: the Quran, the Sunna (traditions of Prophet Muhammad),
Qiyas (analogical reasoning), and Ijma (consensus of opinion). Indeed, during the
life of the Prophet Muhammad, and for a few centuries after him, those sources
were the dominant sources of making legal rules in the Islamic legal system.122 As
the Islamic community expanded, however, beyond the Arabian peninsula, into
Asia, Africa and Europe the original sources did not provide enough legal
principles for new situations. Islamic scholars (Ulama) developed new methods of
interpreting the original sources. Those new methods are generally seen as three
areas of scholarship: tafsir (interpretation of the Quran), fiqh (Islamic
jurisprudence), and usul of fiqh (principles of Islamic jurisprudence).123 Therefore,
the Quran is the most important source of law, but it is not the source of most law
in Islam.
The Quran is a book about the relationship between God and people and
consists of approximately 6,600 verses124 dealing predominantly with religion,
prescriptions, and other related issues such as the creation, the origin of human
beings, and, of course, rules (ahkam – plural of hukm) and proper law.125 Only

121. H.L.A. HART, THE CONCEPT OF LAW 98 (1961).


122. See MUHAMMAD AL KHIZRY, TARIKH AL TASHRIA AL ISLAMI [HISTORY OF LAW MAKING IN
ISLAM] (1994), in which the history of the law making process during the life of Prophet Muhammad,
and up to the collapse of the Abbasid Dynasty, is reviewed.
123. See, e.g., IMAM AL-HARRAMAIN ABI AL-M’ALI ABD AL-MALIK IBN ABDULLAH IBN YUSUF
AL-JOVEINI, AL-BURHAN FI USUL AL-FIQH [EVIDENCE IN PRINCIPLES OF ISLAMIC JURISPRUDENCE]
(1997); ABI ISHAQ IBRAHIM BIN ALI AL-SHIRAZI, KITAB AL-LUMA FI USUL AL-FIQH [THE
FOUNDATIONS IN PRINCIPLES OF ISLAMIC JURISPRUDENCE] (2002); MOHAMMAD HASHIM KAMALI,
PRINCIPLES OF ISLAMIC JURISPRUDENCE (3rd ed. 2003); ABOL HASSAN MOHAMMADI, MABANI
ESTENBAHT HUQUQ ISLAMI [PRINCIPLES OF INFERENCE OF ISLAMIC LAW] (2004); ABDULLAH SAEED,
INTERPRETING THE QUR’AN: TOWARDS A CONTEMPORARY APPROACH (2005).
124. There is no disagreement among Muslims on the text and content of the Quran, but some
authors consider a paragraph as one verse while others may see it as two verses and hence the number of
verses cited in the Quran may differ.
125. Muslim theologians consider the Quranic verses under five main headings namely preaching,
polemics, stories, allusions and legislation. Shlomo D. Goitein, The Birth-Hour of Muslim Law? An
Essay in Exegesis, in THE FORMATION OF ISLAMIC LAW 69-70 (Wael B. Hallaq ed., 2004).
352 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

about ten percent of Quranic verses are called in Arabic ‘ayat al akham’ or verses
relating to rules, but not all of these are analogous to the legal rules or proper law
found in the modern world. The verses relating to rules include those verses
providing provisions for rituals such as daily prayer, haj (pilgrimage), and fasting.
Indeed verses relating to proper law such as governance, contractual law, criminal
law and family law are limited to about two percent of all Quranic verses.
Similarly, the Sunna or prophetic reports which are what the prophet of Islam said
or did and consented to during his twenty three years of prophesying cannot be
considered as a complete code of law in the proper sense.126 Only about ten percent
of all ahadith (singular hadith: saying of the Prophet) relates to proper law. The
third source that is a consensus between Muslims, or ijma, may not even have a
modern application, although it was for centuries an important source of law during
the formation and development of Islamic law.
In the modern world, and in practice, Islamic scholars cite more than twelve
sources of Islamic law.127 These include the two primary sources (Quran and
Sunna),128 and over ten secondary sources. The secondary sources are: Ijma,129
Qiyas,130 Istihsan (Islamic law version of Equity),131 Masaleh Mursalah
(consideration of public interests),132 Urf (custom and usage),133 Istishab
(presumption of continuity), Sadd Al-Dhara’i (blocking the means), and Ijtihad
(personal reasoning of Muslim scholars).
It is notable that certain Islamic law principles relating to areas such as
marriage and divorce, inheritance, and criminal law are based on primary sources

126. On Sunnah as a source of law, see MOHAMMED ARKOUN, RETHINKING ISLAM: COMMON
QUESTIONS, UNCOMMON ANSWERS 45-48 (Robert D. Lee ed. & trans., 1994); HALLAQ, supra note 4, at
39-51.
127. See generally WAEL HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW (2005);
KAMIL MUSA, AL MADKAL ILA AL TASHRI AL ISLAM [THE BEGINNING OF ISLAMIC LEGISLATION] 196-
222 (1989); BURTON WATSON, THE SOURCES OF ISLAMIC LAW: ISLAMIC THEORIES OF ABROGATION
(1990); Muhammad Hamidullah, Sources of Islamic Law – A New Approach, 1 ISLAMIC L.Q. 205
(1954); Farooq Hassan, The Sources of Islamic Law, 76 AM. SOC’Y INT’L L. PROC. 65, 66-73 (1982);
KAMALI, supra note 123.
128. ARKOUN, supra note 126, at 45-48.
129. AHMAD HASAN, THE DOCTRINE OF IJMA IN ISLAM - A STUDY OF THE JURIDICAL PRINCIPLE
OF CONSENSUS (2nd ed. 2003); SAD IBN NASIR IBN ABD AL-AZIZ SHITHRI, QAWADIH AL-ISTIDLAL BI-
AL-IJMA: AL-ITIRADAT AL-WARIDAH ALA AL-ISTIDLAL BI-AL-DALIL MIN AL-IJMA WA-AL-JAWAB ANHA
[THE PROCEDURES FOR THE USE OF IJMA DAR AL-MUSLIM LIL-NASHR WA-AL-TAWZI] (1999).
130. See generally AHMAD HASAN, ANALOGICAL REASONING IN ISLAMIC JURISPRUDENCE: A
STUDY OF THE JURIDICAL PRINCIPLE OF QIYAS 15 (1986); NADIYAH SHARIF UMARI, AL-QIYAS FI AL-
TASHRI AL-ISLAMI: DIRASAH USULIYAH FI BAYAN MAKANATIHI WA-ATHARIHI FI AL-JAWANIB AL-
TATBIQIYAH [QIYAS IN ISLAMIC LAWMAKING PROCESS: COMPARATIVE LECTURES RELATING TO THE
POSITION AND EFFECTS OF QIYAS IN USUL FIQH] (1987).
131. MOHAMMAD HASHIM KAMALI, ISTIHSAN AND THE RENEWAL OF ISLAMIC LAW, app. A n.30
(2004); Saim Kayadibi, Ijtihad by Ra’y: The Main Source of Inspiration behind Istihsan, 24(1) AM. J.
ISLAMIC SOC. SCI. 73, 74 (2007).
132. MOHAMMADI, supra note 123, at 235-42.
133. HAKIM IMTIYAZ HUSSAIN, MUSLIM LAW AND CUSTOMS: WITH A SPECIAL REFERENCE TO
THE LAW AS APPLIED IN JAMMU & KASHMIR 49 (1989); CHIBLI MALLAT, INTRODUCTION TO MIDDLE
EASTERN LAW 104-08 (2007); Mohamed El Awa, The Place of Custom (Urf) in Islamic Legal Theory
17 ISLAMIC Q. 177 (1973); Andreas Haberbeck, Muslims, Custom and the Courts, 24 J. INDIAN LEGAL
INST. 132 (1982).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 353

of Islamic law, particularly the text of the Quran.134 Many other modern legal
subjects, however, including corporate law, communications law, environmental
and resources law, administrative law, and immigration law are regulated by
modern law made by States and parliaments in Muslim countries.135 Except in Saudi
Arabia and Iran, in almost all the other Muslim countries, the majority of legal
rules are based on modern regulations. Iran is the only country whose political and
legal system claims to have legitimacy from religious sources.136
Over the last fifteen centuries Islamic law has developed, akin to any other
legal system, its own characteristics, specific sources, methodology, and theories.
Islamic law is not static, and has been developing over centuries through the works
of jurists, judges, and States. The body of law known as Islamic jurisprudence (fiq)
and Shari’ah (Islamic law) is, in effect, much more than the specific divine law as
revealed to the Prophet Muhammed in several verses of the Quran.137 Therefore, the
proposition that Islamic law is purely divine law is not entirely accurate. Islamic
law may have originated from divine sources as revealed in the revelations to the
prophet Muhammad, but most of its legal principles, as currently practiced, were
developed over centuries of time through the works of Muslim jurists and Muslim
authorities. According to Hallaq, “modern scholarship in the West as well as in the
Muslim East, has drawn a line of separation between the legal pillars of religion
and the rest of fiqh (Islamic jurisprudence), regarding the former as “merely”
ritualistic, pertaining to the “private sphere” of religious belief, and the latter as
constituting the law “proper.”138 On this analysis, many Islamic legal principles may

134. For example, the Quran provides that Muslim men can marry women of their choice: two,
three or four, if they can treat them justly. Quran 4:3. The law of polygamy has been practiced for
centuries in the Islamic world without any limitations. However, in the modern world, a few Muslim
countries, such as Tunisia and Turkey, have banned the practice. Also, most other Muslim countries, for
example, Indonesia, Malaysia, Iran, Egypt, Pakistan and Bangladesh, there are limitations on polygamy.
In a few countries, such as Saudi Arabia and Qatar, polygamy is practiced in a traditional manner.
135. In Indonesia, for example, the legal system is based on a combination of several different
legal systems, including adat law (traditional Indonesian customs), syariah (Islamic law), and colonial
Dutch law. See INDONESIA: LAW AND SOCIETY 3 (Timothy Lindsey ed., 2nd ed. 2008). In fact, the
majority of legal principles, whether substantive or procedural, are based on the Dutch civil law system,
except in a few areas, particularly personal law areas such as inheritance and family law. Even in these
areas, traditional Islamic law has been significantly modified. Id. See also MICHAEL B. HOOKER,
INDONESIAN ISLAM: SOCIAL CHANGE THROUGH CONTEMPORARY FATĀWĀ 13 (2003); MICHAEL B.
HOOKER, INDONESIAN SYARIAH: DEFINING A NATIONAL SCHOOL OF ISLAMIC LAW (2008); INDONESIA:
LAW AND SOCIETY 3 (Timothy Lindsey, 2nd ed. 2008).
136. See Abbas Amanat, From Ijtihad to Wilayat-i-Faqih: The Evolutions of the Shi’ite Legal
Authority to Political Power, in SHARI’A: ISLAMIC LAW IN THE CONTEMPORARY CONTEXT 120 (Abbas
Amanat & Frank Griffel eds., 2007).
137. On the development of Islamic law, see generally NORMAN CALDER, STUDIES IN EARLY
MUSLIM JURISPRUDENCE (1993); HALLAQ, supra note 127; KAMIL MUSA, AL MADKHAL ILA AL
TASHRIA AL ISLAMI, [THE GENESIS OF ISLAMIC LAW MAKING] (1989); LAW IN THE MIDDLE EAST,
VOLUME ONE: ORIGIN AND DEVELOPMENT OF ISLAMIC LAW (Majid Khadduri & Herbert Liebesny eds.,
1955); MUHAMMAD AL KHIZRY, TARIKH AL TASHRIA AL ISLAMI [HISTORY OF LAW MAKING IN ISLAM]
(1994); SAEED, supra note 123; Chibli Mallat, From Islamic to Middle Eastern Law, A Restatement of
the Field (Part I) 51 AM. J. COMP. L. 699 (2003); Chibli Mallat, From Islamic to Middle Eastern Law,
A Restatement of the Field (Part II) 52 AM. J. COMP. L. 209 (2004).
138. HALLAQ, supra note 4, at 229.
354 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

be, and indeed need to be, the subject of further critical evaluation without
challenging the sacredness of law or the sovereignty of government.

D. Theories of State in Islamic Law

The rule of law requires the involvement of the State. As has been discussed,
in the Western legal tradition the rule of law holds the State accountable to its
citizens. Islamic theories of State trend in the opposite direction -- to bolster the
power of the State and its leaders, rather than upholding the rights of its citizens.
An understanding of the traditional theories of State, as well as their modern
versions, will assist in the consideration of the conditions that will need to be met
for the implementation of a rule of law system in Muslim countries.
Generally, in an Islamic State, God is considered as the sovereign lawmaker,139
as well as, the ultimate legislator140 and the final judge.141 The application of the
Shari’ah, as the law made by God, the interpretation of its legal principles, the role
of the rulers, and the method of solving disputes between people in the absence of
God’s prophets, however, has been the subject of various legal and political
theories. In the history of Islam both Sunni and Shia scholars have offered different
theories of State and law. The two major theories are Caliphate, the major Sunni
jurisprudence theory of State and governance, and Imamat, the Shia jurisprudence
theory of state and governance. Scholars from both theories have developed a
variety of interpretations of state and governance ranging from strict, inflexible
views on the State to interpretations that are more compatible with a limited
democratic concept of the State.

1. Sunni Jurisprudence

The essential principle of an Islamic State is that the State is based on the
sovereignty of God. The Sunni theory of State is based on the doctrine of
Caliphate. Under this theory Shari’ah law bounds a Caliph, but they still have
extensive power in running the affairs of the society. According to some scholars
the primary obligation of the Caliph is to implement Divine law, and the leader is
called Khalifat Allah, which means ‘the Deputy of God.’ The Caliph rules the
society based on the sovereignty of God, and hence is answerable to God only.
Most Sunni Muslim scholars argue that a Caliph is not removable from power
except in exceptional circumstances, such as neglecting one of the essentials of
Islam.142 Most of pre-modern Islamic history is based on the Islamic caliphate

139. Say: O, Messenger!: “O, Allah! You are the owner of the kingdom; you give the kingdom to
whomsoever you will and take away the kingdom from whomsoever you will, you exalt whomsoever
you will and abase whomsoever you will; in your hand is all the good; verily, you are powerful over all
things.” Quran 3:26.
140. “Then O Messenger, we appointed you the Sharia law under our command, so follow the
command ….” Quran 45:18.
141. “Say O Messenger: And in whatever your people differ, the decision and the command is
with Allah ….” Quran 25:10.
142. GHAZALI, supra note 119. See also ABOU EL FADL, supra note 105, at 11.
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 355

system, such as the righteous Caliphs, the Omayyed dynasty, the Abbasid
caliphates, and the Ottoman and Safavid empires. Apart from the early Islamic
caliphs (righteous Caliphs), the majority of other caliphs ruled Islamic societies
with absolute authoritarian power.
The theory of Caliphate is articulated in two old texts on Islamic constitutional
law, which are Abu Yusuf’s book (Kitab al-Kharaj) and Mawardi’s book (al-
Ahkam al-Sultaniah). Abu Yusuf (died 798 A.D.) sought to lay down fundamental
principles of Islamic taxation law and argues that Caliphs are deputies of God on
earth (Wolat al-amr fi ardhihi).143 The text of Kitab al-Kharaj considers, to a great
extent, the authority of the Caliph to be absolute.144 Later, Abu al-Hassan al-
Mawardi (1058 A.D.) articulated the theory of the Caliphate state in Islam, arguing
that Caliphs should have the required knowledge to interpret and apply the law of
Islam.145
Although it can be said that the theory of Caliphate is the dominant theory of
State under Sunni jurisprudence, it is not a unified concept. There are different sub-
theories in relation to State and government in Islam, both in traditional and
modern resources.146
Under the Sunni theory of Caliphate the Caliph, or the Islamic state, obtains its
legitimacy from the divine law on behalf of God and his prophet. According to the
twelfth century Sunni Hanbali scholar, Ibn Al-Jawzi, a leading Sunni scholar with a
strict view on the nature of an Islamic state, “the Caliph represents God as His
deputy over the land and people and applies the laws and orders of God as they
were performed by the Prophet.”147 Under this theory the Caliph has all the powers
of making law (to the extent it is not inconsistent with the Quran and Sunna),148
application of law, and dispute settlements. In practice, all of the Islamic Caliphs
throughout history (Omayyed, Abbasid, Ottoman, Mughals, Persians etc.) have

143. ABU YUSUF & YA’QUB IBN IBRAHIM, KITAB AL-KHARAJ 71 (1933).
144. See Muhammad Qassim Zaman, The Caliphs, the ‘Ulama’, and the Law: Defining the Role
and Function of the Caliph in the Early ‘Abbasid Period,’ in THE FORMATION OF ISLAMIC LAW 367,
380 (Wael Hallaq ed., 2004).
145. AL-MAWARDI & ABU AL-HASSAN, KITAB AL-AKHAM AL-SULTANIYYAH [THE LAWS OF
ISLAMIC GOVERNANCE] (1996). The book is published by various publishers in many countries. On
Mawardi and his book, see HAROON KHAN SHERWANI, STUDIES IN MUSLIM POLITICAL THOUGHT AND
ADMINISTRATION 99-112 (4th ed., 1963); ANN K. S. LAMBTON, STATE AND GOVERNMENT IN
MEDIEVAL ISLAM (1981).
146. For English sources on concepts of the Islamic state, see generally HAMID ENAYAT,
MODERN ISLAMIC POLITICAL THOUGHT (1982); NOAH FELDMAN, THE FALL AND RISE OF THE ISLAMIC
STATE (2008); Hamilton A.R. Gibb, Al-Mawardi’s Theory of the Caliphate, in STUDIES IN THE
CIVILIZATION OF ISLAM (Stanford J. Shaw & William R. Polk eds., 1962); Leonard Binder, Al-Ghazali’s
Theory of Islamic Government, 41 MUSLIM WORLD 215, 229 (1955); Muhammad Hashim Kamali,
Siyasah Shar’iyyah or the Policies of Islamic Government, 6 AM. J. OF ISLAMIC SOC. SCI. 59 (1989);
Shad Saleem Faruqi, Concept of an Islamic State: Problems of Definition, Interpretation and
Application in Southeast Asia, (Sep. 2001) (Paper presented at the International Conference on Islam in
South-East Asia, Singapore).
147. ABU’L-FARAJ IBN AL-JAWZI, AL-MISBAH AL-MUDHI’ LI DAWLAT AL-IMAM AL-MUSTADHI’
[THE LIGHT …] 93 (1979).
148. In practice, this has never happened – Islamic Caliphs, except the four early righteous
Caliphs, have always made laws and orders inconsistent with the original sources of Islamic law.
356 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

followed the path of holding absolute law-making, judicial, and executive powers
without being responsible to any other power.
Islamic law, however, is not a system produced or developed by the State.
During the early stages of development of Islamic law during the lifetime of the
Prophet Muhammad (610 – 633 AD) Islamic law was developed in a way that was
very similar to common law -- based upon either revelation or the decisions and
sayings of the Prophet, in most cases in response to a specific legal question. After
the Prophet, and particularly since the development of major schools of law in the
ninth century, Muslim scholars and jurists developed Islamic law.149 Since then
there have always been differences between theoretical developments in Islamic
law by Muslim jurists, and the application of Islamic law by Islamic States.
Both traditional and modern Sunni scholars have provided the basis for more
rational interpretations of the nature of an Islamic State. For example, according to
Ibn Taymiyah (the famous traditional Hanbali jurist of the fourteenth century) the
Caliph does not have the authority of the Prophet and God in law-making and
application of Islamic law.150 Other famous Sunni jurists have articulated ideas and
principles that limit the role of the Caliph and the Islamic state. Ghazali,151
Mawardi,152 Ibn Khaldun,153 and Shah Wali Allah154 are among the famous Sunni
jurists with rational political thoughts in the history of Islam.

2. Shia Jurisprudence

The theory of state under Shia jurisprudence is generally based on the doctrine
of Imamat. Imam literally means ‘the leader,’ but in Islamic jurisprudence
‘Imamat’ is taken to mean continuity of the rules of the Prophet based on the
Shari’ah. There are a few differences between the theory of Imamat under Shia
jurisprudence and the theory of Caliphate under Sunni jurisprudence. While both
consider the Imam or Caliph as the Deputy of the Prophet, ruling on behalf of God,
a shura (Council of Muslims) elected the Caliph, whereas the Prophet himself
appointed the Imam. In the modern world the two theories are much closer.
In Shia Islamic jurisprudence, similar to Sunni, there are various theories about
the nature and concept of the Islamic State.155 One theory of the Islamic state is

149. COULSON, supra note 4.


150. QAMAR AL-DIN KHAN, IBN TAYMIYAH WA FIKR AL SIYASI 102-22 (1973).
151. Imam Muhammad Ghazali was a Persian theologian and Sufi who earned a place as one of
the greatest Muslim scholars and had the title of the “Renewer of Islam”. See generally W.
MONTGOMERY WATT, MUSLIM INTELLECTUAL: A STUDY OF AL-GHAZALI (1963).
152. Mawardi was a famous political theory scholar of the 11th century who laid down certain
principles in relation to the function of the Islamic state and the Islamic caliphate. His famous book is
titled Al-Ahkam Al-Sultaniyeh. See also HANNA MIKHAIL, POLITICS AND REVELATION: MAWARDI AND
AFTER (1995).
153. Ibn Khaldun is a 14th century Muslim scholar, whose famous book is Muqammah [The
Introduction]. He is a leading Muslim historian and sociologist who wrote on the nature of an Islamic
state. See also ZAID AHMAD, THE EPISTEMOLOGY OF IBN KHALDŪN (2003).
154. See also supra text accompanying note 119.
155. See MOHSEN KADIVAR, NAZARIYEHAYEH DOWLAT DAR FIQH SHIA [THEORIES OF STATE IN
SHIA JURISPRUDENCE] 30 (5th ed., 2001); ABDULAZIZ ABDULHUSSEIN SACHEDINA, THE JUST RULER IN
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 357

Velayat Fighih, which the Constitution of Iran adopted.156 In the nineteenth century
Mulla Ahmad Naraghi first articulated the theory of Velayat Fighih in Islamic Shia
jurisprudence.157 Under this theory there must be a government that applies the
Divine law, and the head of state must be a learned Islamic scholar (Faqih) and
shall have certain personal characteristics, such as being just and pious.158

3. Islamic Theories of State in a Modern Context

There is no concept of the modern nation-state in Islamic jurisprudence.


Traditionally, the State and government were considered within a single, unified
political community of believers, known as umma. Like the legal theories of
ancient Rome and medieval Christendom the Islamic concept of State was based on
the “theory of a universal state.”159 In practice, however, apart from the unified
Medina state, headed by the Prophet himself and the early stages of Omayyed and
Abbasid dynasties, autonomous and later independent Islamic self-ruled entities
and governments existed within the Muslim world. In any case, in the Islamic legal
and jurisprudence texts the necessity of an Islamic State is emphasized and the
State is endowed with great power. The rulers in both Sunni and Shia theories of
State are empowered with extensive legal authority. For example, the founder of
Islamic Republic of Iran, Ayatollah Khomeini, on January 7, 1988, made a
statement in which he asserted that the Islamic State enjoyed absolute power,
similar to the power of the Prophet Muhammad, and was able to take all necessary
measures, even to restrict certain “pillars of Islam” such as salat (prayer), fasting
and the hajj in special circumstances.160
None of the theories of States -- Imamat in the Shia school, and Caliphate in
the Sunni school -- are feasible in the modern world, with the international system

SHI’ITE ISLAM: THE COMPREHENSIVE AUTHORITY OF THE JURIST IN IMAMITE JURISPRUDENCE (1988);
Nikki R. Keddie, The Roots of the Ulema’s Power in Modern Iran, 29 STUDIA ISLAMICA 31, 31 (1969);
Hossein Modaressi, The Just Ruler or the Guardian Jurist: An Attempt to Link Two Different Sh’ite
Concepts, 111 J. AM. ORIENTAL SOC’Y 549, 549 (1991).
156. QUANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
OF IRAN] 1358 [1980] art. 5. “During the Occultation of the Wali al-Asr (may God hasten his
reappearance) [the last Shia Imam believed to be hidden], the wilayah [custody] and leadership of the
Ummah devolve upon the just (‘adil) and pious (muttaqi) faqih [Muslim scholar], who is fully aware of
the circumstances of his age; courageous, resourceful, and possessed of administrative ability, will
assume the responsibilities of this office. . . .”
157. AL-MOHAQEQ AHMAD NARAGHI, A’VAAYED AL-AYYAM [BENEFITS OF THE DAYS] 185-206
(1987). The chapter on velayat e-faqih is published as an edited separate book in Tehran and Beirut.
See VELAYAT AL-FAQIH, BAHTHON MEN KITAB A’VAAYED AL-AYYAM LEL MOWLA AL-NARAGHI
(1989).
158. Imam Ruhallah Khomeini, The Pillars of an Islamic State, in CONTEMPORARY DEBATES IN
ISLAM: AN ANTHOLOGY OF MODERNIST AND FUNDAMENTALIST THOUGHT 247, 248-50 (Mansoor
Moaddel & Kamran Talattof eds., 2000). See also Hossein Seifzadeh, Ayatollah Khomeini’s Concept of
Rightful Government: The Velayat-e-Faqih, in ISLAM, MUSLIMS AND THE MODERN STATE: CASE-
STUDIES OF MUSLIMS IN THIRTEEN COUNTRIES 197 (Hussin Mutalib & Taj ul-Islam Hashmi eds.,
1994).
159. Majid Khadduri, Islam and the Modern Law of Nations, 50 AM. J. INT’L L. 358, 358 (Apr.
1956).
160. Letter from Ayatollah Khomeiny (Dec. 7, 1983) in 20 SAHIFEH NOUR 170. See also
KADIVAR, supra note 155, at 108.
358 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

of sovereign nation states. As Majid Khadduri articulated, “Islam was neither the
first nor the last of the nations that sought to establish a world public order based
on divine legislation.”161 But exclusive control of the whole, or a major part of the
world, is not achievable and given the nature of human societies, should not be
contemplated. What may be achievable, and desirable, is that States and
governments be subject to the rule of law.

IV. AN ISLAMIC PERSPECTIVE ON THE RULE OF LAW


A system based on modern rule of law principles can potentially be adopted
within the sources of Islamic law. While certain characteristics of the Islamic legal
system, such as the sacredness of the law, the position of certain individuals, and
sources of law may indicate that a rule of law system may be hard to establish in a
Muslim state, certain other characteristics of the Islamic legal system may provide
reasonable theoretical basis for a limited rule of law system in a Muslim state.
While many orthodox and traditional scholars and Islamist groups justify their own
restrictive interpretations based on specific verses of the Quran, there are certain
verses in the Quran that emphasize many aspects of a modern concept of the rule of
law.162
As it was mentioned previously, there are thick and thin theories of the rule of
law even in modern legal systems.163 A limited rule of law system, which is drawn
from thin and formal theories, may be able to be established with an Islamic
system. The problem is that because such a system does not exist in practice the
nature of an Islamic rule of law system may not be clear. In countries such as
Malaysia, Indonesia, Bangladesh, United Arab Emirates and some other Muslim
countries, however, elements of the rule of law are present. Even the legal system
of Islam potentially, and in theory, may possess most of the characteristics of a rule
of system as Finnis outlined.164
Principles such as ‘non-retroactivity’ and ‘presumption of innocence’ are
recognized in Shari’ah. Also there are certain principles in the Shari’ah that may
limit the role of government and protect the rights of individuals. Further, the
diversity of sources of Islamic law and the flexible approach that was employed by
Muslim scholars and States in inferring legal principles in different stages of
history and the use of a number of secondary sources of law, such as consideration
of public interests (Masaleh Mursalah), may be elements of Shari’ah supporting
the possibility of establishing an Islamic rule of law system. These characteristics
of Islamic law will be discussed in this section.

161. MAJID KHADDURI, THE ISLAMIC LAW OF NATIONS: SHAYBANI’S SIYAR xi (1966).
162. See Qur’an 2:188; Qur’an 6:151; Qur’an 65:7.
163. See supra note 34.
164. See supra note 42.
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 359

A. Certain Traditional Shari’ah Legal Principles and Presumptions

There are a number of legal principles and presumptions under traditional


Islamic law that are similar, and to some extent, precedent to modern legal
principles. Under Islamic law, law should not be applied retroactively165 and the
principle of legality is recognized.166 The life and reputation of individuals are
protected,167 and the presumption of innocence is an important principle of Islamic
criminal law.168 Pre-trial detention is not permitted under Islamic law, but in
exceptional circumstances it can only be allowed for a very limited period. Under
traditional Shari’ah the power of the authorities to arrest and detain individuals
before a trial and conviction is limited, or subject to strict requirements. A number
of Ahadith (sayings of the Prophet) limit pre-trial detention to a day and a night (24
hours) or three days.169 Therefore it can be said that the legal system of Islam
includes some principles that, if developed properly, are equivalent to the modern
characteristics of a rule of law system as Finnis identified.170 Of course, there are
also significant areas of inconsistency, which are discussed below.171

165. Qu’ran 17:15 “… We do not punish any people before We send a messenger,” and Qu’ran
17:16 “… and when We intend to destroy a town We first send Our commandment to its transgressors,
and when they turn away from Our commands, then We punish them …” For a discussion of the
principle of non-retroactivity, see Gamil Muhammed Hussein, Basic Guarantees in the Islamic Criminal
Justice System, in CRIMINAL JUSTICE IN ISLAM: JUDICIAL PROCEDURE IN THE SHARIA 35 (Muhammed
Abdel Haleem et al. eds., 2003); see also QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE
CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN] 1358 [1980], art. 169.
166. The Qu’ran 28: 59; Qur’an 5: 95; Qur’an 8: 38; Qur’an 4: 22-3; see also HUSSEIN, supra
note 165, at 35, 36-7.
167. According to Bassiouni, the Qu’ran warns against persecution of people reportedly more
than 299 times. See M. Cherif Bassiouni, Sources of Islamic Law, and the Protection of Human Rights
in the Islamic Criminal Justice System, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM 4, 19 (M Cherif
Bassiouni ed., 1982). See also Osman Abd-el-Malek al-Saleh, The Right of Individuals to Personal
Security in Islam, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM 55, 80 (M Cherif Bassiouni ed., 1982).
But on the conflict between traditional Islamic law and human rights, see ABDULLAHI AHMED AN-
NA’IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS, AND INTERNATIONAL
LAW 1 (1990); ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS (4th ed. 2007); Abdullahi A. An-
Na’im, Islam and Human Rights: Beyond the Universality Debate, 94 AM. SOC’Y INT’L L. PROC. 95
(2000); Abdullahi A. An-Na’im, Religious Minorities under Islamic Law and the Limits of Cultural
Relativism, 9 HUM. RTS. Q. 1 (Feb. 1987); Rebecca Borlow & Shahram Akbarzadeh, Women’s Rights in
the Muslim World: Reform or Reconstruction?, 27 THIRD WORLD Q. 1481 (2006); Bassam Tibi, Islamic
Law/Shari’a, Human Rights, Universal Morality and International Relations, 16 HUM. RTS. Q. 277, 277
(1994).
168. See QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC
REPUBLIC OF IRAN] 1358 [1980] art. 37; A. BADERIN, INTERNATIONAL HUMAN RIGHTS AND ISLAMIC
LAW 103-104 (2003); KAMALI, supra note 65, at 384-96; A. MOHAMMADI, [PRINCIPLES FOR INFERENCE
OF ISLAMIC LAW] 295-308 (2007); MASHOOD.
169. For example, in Sunni jurisprudence Abu Hurayra (a companion of the Prophet and a Hadith
authority) narrates that the Prophet of Islam put an accused in detention for only a day for investigation.
See AL-HAKIM AL-NAYSAPOURI, AL-MUSTADRAK ALA AL-SAHIHAYN VOL. IV [THE UNDERSTANDING
OF TWO HADITH BOOKS] 102 (Yusuf Mar’ashli ed., n.d.).
170. See FINNIS, supra note 12.
171. For my later discussion of human rights and justice, see infra Part V.
360 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

B. Islamic law principles developed in meeting modern socio-economic challenges

Although Islamic law in comparison with common law and modern civil law
systems may be underdeveloped, it is not frozen. The legal system of Islam has
developed many extratextual legal principles such as analogy (qias) (analogical
reasoning), istihsan (equity or juristic preference), masalah mursalah (public
policy), istishab (presumptions of continuity), sadd al-dharai (blocking the means),
and ijtihad (legal reasoning). Various juristic schools have been developed and
diverse interpretations of law and religion have been developed in the history of
Islam. While Islam provides certain fixed principles and limited sources of law,
public policy and expediency played an important role during the time of the
Prophet, righteous Caliphs and other Caliphates in the history of Islam. In Muslim
societies and countries today many legal principles are based on these
considerations. The role of public policy and expediency is evident in original
sources of Islamic law, such as the Quran and the Sunna. As well as in some other
secondary sources of law, such as Masaleh Mursalah (consideration of public
interests), Urf (custom), and Ijtihad (personal reasoning of learned Muslim
scholars).172 According to Al-Ghazali, the objective of law is to protect five
essential values: religion, life, intellect, lineage and property; and Masaleh (public
policy consideration) protects those values.173 After the Prophet the establishment of
certain legal principles and institutions, such as imposing taxes on agricultural
products, issuing currency and calendars, and establishing prisons, were based on
Masaleh and expediency. The majority of Muslim scholars consider that Masaleh
is a proper grounds for legislation in an Islamic legal system.174
The term ‘Sadd al Dhari’ah’ literally means ‘blocking the means.’ This allows
the legislature in an Islamic State to prohibit certain acts that may open the means
to evil.175 In other words, the state may provide precautionary regulations in order to
avoid an evil or the committing of crimes. Even certain lawful behaviors may be
prescribed unlawful because they may lead to the commission of illegal acts. This
doctrine, which traditionally placed limits on the lawmaking power of the State,176
could be used to limit the power of the State in imposing harsh sets of rules on the
society. Although in practice this doctrine can be used in expanding the power of
the state in imposing extra rigid rules upon the society, it gives flexibility to an
Islamic legislature in the making and unmaking of legal rules. Details of the
doctrine are well discussed in Islamic jurisprudence textbooks, and are part of usul
al-fiqh or ‘principles of Islamic jurisprudence.’177

172. KAMALI, supra note 123, at 352.


173. IMAM ABU HAMID MOHAMMED GHAZALI, AL-MUSTASFA MIN IL AL-USUL VOL. 1, 139-40
(1937).
174. KAMALI, supra note 123, at 352.
175. ABUL HASSAN MOHAMMADI, MABANI ESTENBAT HOGHOUGH ISLAMI [PRINCIPLES FOR
INFERENCE OF ISLAMIC LAW] 257-58 (2001).
176. Khaled Abou El Fadl, Islam and the Challenge of Democratic Commitment, 27(1) FORDHAM
INT’L L.J. 4, 29-30 (2003).
177. See KAMALI, supra note 123, at ch. 16.
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 361

Although there has been strong emphasis on the Divine aspects of an Islamic
State, from the early history of Islam people have always had a role to play in an
Islamic State. The Prophet of Islam always invited people to make bay’a
(allegiance) to him, and the first few Caliphs of the earliest Islamic State came into
power after people made allegiance to them. In addition to bay’a, a number of key
traditional Islamic concepts and institutions, such as shura (consultation) with
people by the rulers, ijma (consensus) of Islamic scholars, ijtihad (reinterpretation)
of religious rules, and maslahah (expediency), may be used to establish Islamic
forms of parliamentary democracy, representative elections and other civil society
institutions.178 Some modern reformers even argue that the Caliphate system should
be put aside in favor of other forms of government. According to Ali Abd al-Raziq:

Muslims are free to demolish this worn-out system (of the caliphate)
before which they have debased and humiliated themselves. They are free
to establish the bases of their kingdom and the organization of their state
according to more recent conceptions of the human spirit and according to
the principles of government whose excellence and firmness have been
consecrated by the experience of the nations.179

Fathi Osman observes that “the head of a contemporary Muslim state can be
elected directly by the people, or by the parliamentary representatives of the
people, or can be nominated by those representatives as a candidate for or against
whom the public then vote.”180
Potentially, Shari’ah law may accommodate many characteristics of a rule of
law system. Given the discourse of the Muslim world on democracy, the rule of
law, and civil society, such a concept may be developed theoretically as well as in
practice.

V. HUMAN RIGHTS AND JUSTICE


Under the substantial theory of the rule of law, human rights and justice are
important aspects of the rule of law system. Even proponents of the formal
conception of the rule of law consider that there is a necessary relationship between
human rights and the rule of law. According to Joseph Raz, ‘civil rights’ are an
indispensable component of the rule of law system.181 Ronald Dworkin considers
the protection of moral rights to be part of the rule of law.182 According to the
United Nations’ definition of the rule of law, it is expected that a legal system

178. John Esposito, Practice and Theory, in ISLAM AND THE CHALLENGE OF DEMOCRACY 93, 96
(Joshua Cohen & Deborah Chasman eds., 2004).
179. Ali Abd al-Raziq, The Caliphate and the Bases of Power, in ISLAM IN TRANSITION: MUSLIM
PERSPECTIVES 29, 37 (John Donohue & John Esposito eds., 2007).
180. Fathi Osman, Shura and Democracy, in ISLAM IN TRANSITION: MUSLIM PERSPECTIVES 288,
289 (John Donohue & John Esposito eds., 2007).
181. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND
POLITICS 360 (1994).
182. RONALD DWORKIN, A MATTER OF PRINCIPLE 11-12 (1985).
362 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

based on the rule of law should observe human rights principles and apply
justice.183
The relationship between Islamic law and human rights and justice has been
the subject of lengthy discussion during the last half century. There is also an
extensive literature in both European languages (e.g. English, French), and Middle
Eastern languages (Arabic, Persian, Turkish) on human rights in Islam, and in
particular, the Shari’ah law. Most of the available literature in Middle Eastern
languages, and some of the works in European languages, emphasize the
importance of human rights. They argue that principles of human rights are
recognized in Islam and its legal system, and to an even greater extent than in the
West.184 In reality, the fifteen century long history of Islam and the track record of
more than fifty-six Muslim nations indicates serious inconsistencies with modern
principles of human rights.
In order to understand the relationship between Islam, Islamic law, and human
rights, the definition of the principles of human rights and the specific version of
Islam, are to be considered. Although there are a large number of legal principles
for the protection of certain human rights that are applied in the laws of democratic
countries and are universally recognized, “the conceptual structure of human rights
is not monolithic; nor human rights themselves hermetically sealed imperatives.”185
Further, although international law provides principles in a number of international
human rights instruments, such as the Universal Declaration of Human Rights
1948,186 in recent years there has been more emphasis on civil and political rights,
rather than social and cultural rights. Concepts like cultural relativity, human
responsibility, and the universality or locality of human rights have been the
subject of both scholarly and practical debate in recent years. Nonetheless, there are
a large number of national and international legal principles concerning the
protection of human rights, which are fairly universally recognized. Notable among
these rights are: rights to life, liberty and security of person; equality before the

183. For the United Nations, the rule of law is,


A concept at the very heart of the Organization’s mission. It refers to a principle of
governance in which all persons, institutions and entities, public and private, including the
State itself, are accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human rights norms
and standards. It requires, as well, measures to ensure adherence to the principles of
supremacy of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making, legal
certainty, avoidance of arbitrariness and procedural and legal transparency.
U.N. Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post Conflict
Societies: Rep. Of the Secretary-General, ¶ 6, U.N. Doc. S/2004/616 (Aug. 23, 2004). See further Rule
of Law Coordination and Resources Group, supra note 6.
184. See, e.g., SAYYID ABU AL-ALA MAWDUDI, HUMAN RIGHTS IN ISLAM (Khurshid Ahmad &
Ahmad Said Khan trans., 1976); Muhammad Talat al-Ghunaimi, Justice and Human Rights in Islam, in
JUSTICE AND HUMAN RIGHTS IN ISLAMIC LAW 1 (1997); Riffat Hassan, On Human Rights and the
Quranic Perspectives 19 J. ECUMENICAL STUD. 51 (1982); Tahir Mahmood, Islamic Law on Human
Rights, 4 ISLAMIC & COMP. L.Q. 32, 32 (1984).
185. David Kinley, Human Rights, Globalization and the Rule of Law: Friends, Foes or Family?,
7 UCLA J. INT’L L. & FOREIGN AFF. 239, 254 (2003).
186. Universal Declaration of Human Rights, G.A. Reg. 217 (III) A, U.N.Doc. A/RES/217(III)
(Dec. 10, 1948).
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 363

law; protection from arbitrary arrest and detention; rights to a fair and public
hearing; freedom of opinion and expression; and gender equality.187
Under historical Shari’ah, or traditional Islam, human rights are not the central
focus of the system. Shari’ah emphasizes religious and divine duties (taklif).188
According to Mohsen Kadivar, true human rights in the traditional version of Islam
are reduced to the religious duties of Muslims towards God and others.189 Majid
Khaddouri stated that “human rights in Islam, as prescribed by the divine law, are
the privilege only of the persons of full legal capacity. A person with full legal
capacity is a living human being of mature age, free, and of Moslem [sic] faith.”190
The term ‘rights’ in Arabic (and in Persian) is haqq, which literally means truth and
reality. It has been said that haqq means “duty as well as right, obligation as well as
claim, law as well as justice.”191 Under Islam human rights are observed only if
directly related to the responsibilities that people have towards God.192
The issue of human rights and Islam is one of the most contentious areas of
Islamic law, and is an important consideration in contemplating an Islamic rule of
law system. As stated by some prominent Muslim and Western scholars, the
fundamental principles underlying modern human rights in the West are
substantially different to the notion of rights (Haqq) and responsibility (taklif) in
Islam.193
A rule of law system in the Muslim world requires an interpretation and
approach to the law of Islam that is consistent with international human rights law.
Principles of human rights, as adopted by international instruments, can be
introduced in the Muslim world in two ways. One way is the introduction of human
rights principles into the legal systems of Muslim countries, by introducing into the
Constitutions of almost all Muslim countries or enacting legislation. In this way,
international pressure and regular monitoring of the observation of human rights by

187. The literature on international human rights is extensive. A few good sources are: PHILIP
ALSTON, THE UNITED NATIONS AND HUMAN RIGHTS (1992); ROBERT MCCORQUODALE, HUMAN
RIGHTS, (Ashgate 2003); HENRY STEINER ET AL, INTERNATIONAL HUMAN RIGHTS IN CONTEXT (2007).
188. ABDULKARIM SOROUSH, WISDOM, INTELLECTUALISM AND RELIGIOUS CONVICTION 135
(2005).
189. Mohsen Kadivar, Human Rights and Intellectualism, in NEW DIRECTIONS IN ISLAMIC
THOUGHT: EXPLORING REFORM AND MUSLIM TRADITION 47, 50 (Kari Vogt, et al. eds., 2009).
190. Majid Khaddouri, Human Rights in Islam 243 ANNALS OF THE AM. ACAD. OF POL. & SOC.
SCI. 79 (1946).
191. NASR, supra note 87, at 281.
192. NASR, supra note 87, at 282.
193. See HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES A QUEST FOR CONSENSUS
(Abdullah An’Naim ed., 1995); ABDULLAH AN’NAIM, ISLAM AND THE SECULAR STATE: NEGOTIATING
THE FUTURE OF SHARIA (2008); ABDULLAH AN’NAIM, TOWARD AN ISLAMIC REFORMATION: CIVIL
LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW (1990); KHALED ABU EL FADL, SPEAKING IN
GOD’S NAME: ISLAMIC LAW, AUTHORITY, AND WOMEN (2003); CHARLES KURZMAN ED., LIBERAL
ISLAM: A SOURCEBOOK (1998); MAYER, supra note 167; SOROUSH, supra note 182; Khaled Abu El
Fadl, The Human Rights Commitment in Modern Islam, in WANTED: EQUALITY AND JUSTICE IN THE
MUSLIM FAMILY 113 (2009), available at http://www.musa wah.org/docs/pubs/wanted/Wanted-KAEF-
EN.pdf; Mohsen Kadivar, Reconstruction of Wisdom: A Condition for Reconciling Religion and Human
Rights, at 6 (May 16, 2007) (unpublished paper presented at the Human Rights Conference, Mofid
University, Qom, Iran) (on file with the author).
364 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

the relevant agencies and institutions of the United Nations will be applied to
ensure the implementation of international human rights rules.
A second way -- and a better option -- is for the Muslim world to adopt and
institutionalize universal principles of human rights within the legal system of
Islam. This will be feasible because of the potential rational approaches of Islamic
law and because of the existence of diversity, both in the history of Muslim
civilization and within contemporary Muslim societies. Nonetheless, Abdolkarim
Soroush articulated that Muslim societies must change the nature of their culture to
become societies where people know and demand their rights (mohiq people),
rather than remaining in societies where people are only bound by obligations or
responsibility (mukallaf people).194

VI. CHANGES FROM WITHIN – THE IMPLEMENTATION OF A RULE OF LAW BASED


SYSTEM IN MUSLIM COUNTRIES
Shari’ah, the legal system of Islam, is a religious system, which is unique in its
nature, in that Islam was never a purely spiritual religion. The law of Islam or
Shari’ah from its early stage has gone through gradual change and has adopted
limited rational principles and methods of reasoning. The result of this was that
logic, philosophy and legal reasoning entered into the study and development of
law, within what is essentially a religious system. Can a modern rule of law system,
as developed in the Western world, be effectively imported in Muslim countries?
Or alternatively, could a rational legal system embedding a rule of law based
system be gradually developed within the general framework of the Islamic legal
system? The sudden introduction of secular law into the Muslim world as happened
after the collapse of the Ottoman Empire and during colonization may not be the
answer.
Professor Seyed Hossein Nasr makes an interesting point that may generate
valuable debate.195 He states that prior to the early twentieth century there was
much harmony in Muslim countries between Shari’ah and non-divine law
(qanun).196 He then argues that the forced implementation of European legal
systems in Muslim countries such as Egypt, Turkey and Iran created “a tension
between private religious life and the public domain and drew the majority of the
population further away from their governments which they began to view as anti-
Islamic.”197 Nasr’s argument suggests that if modern European legal principles had
not been introduced into the legal systems of the Muslim world, the Islamic world
would have attempted serious reforms on its own, and changed the Shari’ah legal
system. Saudi Arabia, however, the only Muslim country where European legal
principles were never introduced, does not support Professor Nasr’s argument,
because the tension there between the government and the people is similar to

194. SOROUSH, supra note 50, at 292.


195. See NASR, supra note 87.
196. NASR, supra note 87.
197. NASR, supra note 87, at 122.
2011] THE NATURE AND DEVELOPMENT OF LAW IN ISLAM 365

many other parts of the Muslim world. Furthermore, the introduction of Shari’ah in
Pakistan in 1978 by General Muhammad Ziaulhaq did nothing to reduce the gap
between the moderate sub-continent nation and its mainly military government.
Indeed, it fuelled tensions that still continue today. The introduction of a
comprehensive Shari’ah system in Iran in 1979 reduced tensions in that Islamic
State.198
There is no doubt that there have been sudden introductions of foreign legal
systems into the Muslim world and that they have caused tensions. These tensions
could be argued to be a factor in the rise of Islamic fundamentalism and calls for a
“pure” Shari’ah-based legal system, and the complete rejection of other modern
legal influences. It is arguable that a rule of law system and a flexible pluralistic
Shari’ah system may be able to co-exist, given the strengths and positive potential
of Shari’ah legal system. These strengths include: Shari’ah’s long tradition of
pluralism in adopting other cultures’ ideas; its elaboration of fundamental
protective principles (including the limitations on arbitrary detention, and
prevention of retrospective laws, among others); and its reflection of potential
Shari’ah-derived human rights principles. It should be noted, however, that
generally Islamic law emphasizes the obligations of individuals, rather than rights.
Another challenge is that, in modern times, we do not have a practical example of
such a system.

VII. CONCLUSION
The meaning and the nature of law in the West is the subject of different legal
theories developed over many centuries. Greek philosophers, such as Plato and
Aristotle and Christian scholars and legal jurists in the West have developed legal
theories to define the ‘law’ and justify the validity and legitimacy of law. In the
Western legal tradition every aspect of the law, particularly its sources and
authorities, are subject to critical examination. Natural law and positivism, the two
dominant modern legal theories in the West, each include many sub-theories.
While rule of law institutions such as an independent judiciary, legal profession,
and free press are strong in Europe, North America, Australia and many other
countries, these institutions are weak or non-existent in the majority of Muslim
countries, particularly in the Middle East.
In the Muslim world scholarly debates and legal theories were mainly
concerned with interpretation of Islamic texts (particularly the Quran), but some
examples of deep juristic debates on the nature of law and its philosophy do exist in
the history of Islamic legal theory. The Mutazela - Ashari debates of early Muslim
history are the most important of the scholarly debates on the nature and
philosophy of Islamic law. But in more recent times the nature of law and the
supremacy of law have entered Islamic jurisprudence and legal theory. Both

198. On Islamisation of Iranian law see SAID AMIR ARJOMAND, THE TURBAN FOR THE CROWN:
THE ISLAMIC REVOLUTION IN IRAN (1988); ROY P. MOTTAHEDEH, THE MANTLE OF THE PROPHET:
RELIGION AND POLITICS IN IRAN (1985).
366 CONNECTICUT JOURNAL OF INT’L LAW [Vol. 26:329

Muslim and Western scholars have examined the nature of the Quran, the
revelation and divine law, and other aspects of the nature of law in Islam in the
twentieth century.
There are significant inconsistencies between Islamic law and many modern
legal principles particularly in relation to human rights. It is arguable, however, that
a rule of law system and a flexible Shari’ah system may be able to co-exist, given
the strengths and positive potential of Islamic legal system. These strengths
include: Shari’ah’s long tradition of pluralism in adopting other cultures’ ideas and
legal principles; its elaboration of fundamental protective principles (including the
limitations on arbitrary detention, and prevention of retrospective laws, among
others); and its reflection of potential Shari’ah-derived human rights principles. It
should be noted, however, that generally, Islamic law emphasizes the obligations of
individuals rather than rights. Another challenge is that, in modern times, we do not
have a practical example of such a system.
The rule of law, as a vital aspect of stable and continuing democracies, is being
adopted as an essential component of many countries’ national and international
policies, both in the West and among people who are struggling for democracy in
the developing world. The rule of law could be implemented in the Middle East
and the Muslim world using Islamic principles and modern and universal legal
principles.
While the exact nature of a rule of law system based on Islamic law principles
may not be clear, it is arguable that given the discourse of the Muslim world on
democracy, civil rights, and the rule of law a rule of law concept may be developed
in the Muslim world, both in theory and practice in the future. This process must be
gradual and may take decades and generations. A limited ‘rule of law’ system
based on reformed and rationalized principles of Shari’ah may be established in the
Middle Eastern and Muslim countries, but it must be developed from within and it
will be slow and gradual.