Book of the month

The Fall and Rise of the Islamic State: A Council on Foreign Relations Book

By Noah Feldman

Book review written by Lisa Anderson

This is a curious book. It is informed by intelligence, generosity and a sort of youthful devil–may–care enthusiasm that is somewhat disconcerting in a book about such weighty matters. Noah Feldman, a 37–year–old Harvard law professor, New York Times columnist and senior fellow at the Council on Foreign Relations, has made a career of audacity, however–volunteering to write the constitution for post–Saddam Iraq, criticizing Orthodox Judaism for its insularity, and here making the case for the rule of Islamic law–and he seems to relish his role as the American establishment’s impudent but charming youth. With any luck, his cheekiness will ripen into something more measured as he grows older; if not, his influence is likely to be shallow and short–lived, and that would be a shame, since there is ample evidence that he is as smart as he thinks he is.

Feldman’s project in this book is to understand the rise of Islamist sentiments throughout the Muslim world. To do so, he says, “We must get a clearer sense of what the traditional Islamic state was, and why it worked so well for many centuries until it ultimately declined and fell. Only then will we see fully why the idea of the Islamic state is so popular today.” In fact, for all their deference to the great jurists and scholars of the past, it is not self–evident that modern–day Islamists care a great deal about how the governments of classical Islam exercised authority, any more than, say, American evangelical Christians are animated by reference to medieval Christendom or, for that matter, the American National Rifle Association is concerned with the intent of the drafters of the U.S. Constitution’s second amendment. For political activists of all persuasions, the past is less a blueprint to follow or model to emulate than it is a toolbox from which useful instruments may be selected. Indeed, as Feldman himself puts it, “the Islamic state is not some dead hand but the living, breathing material from which the future will be built.”

But let us concede Feldman’s premise: the past does provide “signposts,” to use the expression the Islamist theorist Sayyid al–Qutb made famous, and perhaps the appeal of Islamist movements today can be better understood if we examine the classical Islamic state. How does Feldman understand that state? It was “constitutional,” he explains, a “system justified by law, and the system administered basic government through law.” Certainly, the primacy of law in Islam and Islamic government is indisputable; indeed, that Islam is a “nomocracy” is one of the first clichés a budding Middle East studies specialist learns.

Feldman argues that those who elaborated and applied the law, the “ulama (a term he translates as “scholars” and then uses the English throughout, which is somewhat confusing, given the quite different connotations of the terms in Arabic and English), were a powerful and effective check on the rulers. They ensured that even the highest political authorities were subject to the rule of law–there was, in other words, a system of checks and balances. This system broke down in the 19th century, says Feldman, when the Ottoman Empire’s half–hearted adoption of European–style constitutionalism made a hash of both systems, leaving the Muslim world without a constitutional state of any sort at all.

This is Feldman’s argument in a nutshell. Over the last several centuries, the role of Islamic law and, importantly, of the scholars who interpret Islamic law, waned in the face of definitions of modernity that presuppose a secular, liberal definition of law. In place of Islamic law, European–style constitutions and jurists were introduced but found little resonance and less authority in most post–colonial states in the Muslim world; this, in turn, has permitted rulers in the Muslim world to rule as despots. Hence, Islamic movements speak to a deep–seated and widespread yearning for separation of powers, checks and balances, rule of law. In many respects, Islamist movements are little different from their liberal European forbearers in calling for limited government but they do so in an idiom their audience understands and endorses.

Before rehearsing my disagreements with Feldman’s argument, let me say that I believe that in many ways he points to a very important element of the contemporary scene in the Muslim world. The Islamist movements of most of the 20th and early 21st centuries—the Muslim Brotherhood and its myriad offshoots—are in fact calling for the rule of law because they and their constituents are confronted with governments that seem to be above and beyond the law, any law. This is an important insight and needs to be taken to heart by, among many others, American policy makers, who too often tolerate if not encourage highhanded, arbitrary and capricious behavior on the part of Muslim rulers with whom they are allied. Law and order are important elements of peaceful and prosperous societies, and they are far too scarce in this part of the world.

The states that succeeded the Ottoman Empire, and many other Muslim–majority states as well, are fundamentally lawless, neither justified by nor administered through law at all—neither Islamic nor Western. The rise of the Islamist movements that, as Feldman puts it, express “the demand for justice, a demand driven both by the language of the Qur’an and by the striking absence of justice in actually existing political arrangements” reflects widespread unhappiness with the arbitrary and capricious rule that has resulted. This yearning for law, Feldman suggests, is quite understandable, indeed, laudable; it is the implementation that is troublesome, since it is not clear who will play the role of the “scholars” of olden days in an age of popular sovereignty: “if the new Islamic state can find an institution to fill the role traditionally played by the scholars, it has a reasonable chance of establishing political justice and, through it, popular legitimacy.”

There a plenty of points on which one might quibble with Feldman’s quick tour (a mere 151 pages) through Islamic history and historiography. The pedant—and we are many in this field—cannot but be dismayed by the very casual approach to the twenty pages of academic endnotes. Fairly technical terms such as waqf, for example, are introduced in the endnotes without definition, and without any indication that this term refers to the “foundations” discussed in the text. References to the literatures on some subjects are astonishingly haphazard, giving the impression that, while Feldman knows there is much more on a given subject, he thinks it is sufficient to cite what he has on his desk.

In more substantive terms, it is probably only a lawyer who would seriously entertain the argument that law and jurists might in themselves represent a check on a ruler determined to exercise his powers as he wished. While Sir Hamilton Gibb and Harold Bowen pointed out long ago that there was a balance between the “religious institution” and the “ruling institution” in the Ottoman Empire, (in Islamic Society and the West: A Study of the Impact of Western Civilization on Moslem Culture in the Near East. Vol. I, Islamic Society in the Near East, which was published in 1950 and which Feldman does not cite), neither they nor their Orientalist colleagues believed that, when the religious prevailed on the rulers to subject themselves to the constraints of the law, they did so simply through the power of persuasive argument. The ‘ulama had their own source of livelihood in the pious foundation, or waqf—indeed, this is what made them an “institution” rather than an administration—and this economic autonomy gave them a crucial independence in their dealings with the ruling authorities.

The seizure of waqf properties by the Ottoman state during the nineteenth century—often at the behest of Europeans looking to open up the real estate markets of the Empire—and the eventual “nationalization” of the religious institution, as the ‘ulama were put on the government payroll, marked the beginning of the end of the system of “checks and balances” for which Feldman believes the Islamists are looking. This suggests that, in the absence of a private sector of any significance, the likelihood of any check on the power of the ruler—by ‘ulama or capitalists or lawyers or anyone else—is small. It is not coincidence that one of the strongest Islamist movements—Khomeini’s revolution in Iran—was based in the one part of the Iranian economy that the Shah’s reforms had not penetrated: the traditional bazaar.

Whether the contemporary liberalizations and privatizations in the states of the Muslim world will produce resources for social forces—Islamist or otherwise—to check the power of the governments is an interesting question. Specialists in the politics of the Middle East and the Muslim world—even, perhaps especially, those who disagree with Feldman, including this writer—will therefore find much to be provoked and intrigued by in this book. Nonetheless, however, it is not clear to whom the book is addressed and this is another somewhat frustrating aspect of the volume. For a specialist audience—Western–trained scholars of Islam and Islamic law, for example—it is a too quick and often tendentious tour through centuries of history and jurisprudence, all in the service of a very simple, if not simplistic, interpretation of the appeal of Islamist movements to Muslims around the world today. For a more generalist audience—readers, perhaps, of The New York Times, bewildered by what problems could be engendered by the claim that “Islam is the solution”—it is a series of somewhat arcane and not very comprehensive lectures on the character and role of law in Islam.

Perhaps the book is intended for the international human rights community, which is inclined to think of the rule of law only in liberal secular terms, and is flummoxed by calls for the imposition of the shari’ah (is this really the rule of law?) Or perhaps it is directed towards American policy–makers, who could certainly do with a primer on the significance of Islamic law in the countries where governments pay lip service—and sometimes, more serious deference—to the constitutional significance of Islam.

I suspect that it is intended to be all of this, and perhaps more, and I suspect that Feldman himself assumes that his readers will be willing to overlook their irritation with his occasional oversimplifications and self–importance, his odd combination of efforts to both overawe and condescend to his audience, in order to follow his argument. On that score, he is probably right, and if the book provokes his readers to ponder arguments they have not entertained before—whether Feldman’s or their own responses to his propositions—he will have accomplished something useful, even if it was not necessarily what he set out to do.

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