Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER THREE
ISLAMIC LAW AND THE STATE

When we come to analyze the relations between state and law under the Ottomans it is important to bear in mind that, much as in other topics, this period is a continuation of some sort of earlier Islamic history. Hence it is impossible to deal with it properly without a resumé of what preceded it.

Judging by the available literature, there are three main themes within the field of relations between law and state in Islam. One is the question of what is the law, who decides it, and who controls it. The second is the question of who is the ruler, how he is nominated, and the related matter of the legitimation of the state in the eyes of the community and particularly in those of the ʿulamāʾ. The third is the question of the existence, or lack thereof, of limitations on the authority of the state in its relations with the individual. All these questions can, and have been, dealt with on the basis of nonlegal material, but the discussion may profit from taking the legal material into account as well.1 In fact, it is important to bear in mind that within the Islamic traditional world-view there is no clearcut differentiation between law and political theory. To be more exact, in the self-description and self-view of Islam, political theory is in fact legal theory. It has been suggested by scholars that the true starting point in the political theory of Islam is the law rather than the state itself, since the law analytically precedes the state: the law, which is God's command, comes first, and the state is merely the tool devised to facilitate the implementation of the law.2 It is not by chance that many of those authors who are classified by Western scholars as political theorists were in fact jurists.3 Political theorists

____________________
1
See Ann K.S. Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981); Erwin I.J. Rosenthal, “The Role of the State in Islam: Theory and Medieval Practice, ” Der Islam 70 (1973): 1–28; H.A.R. Gibb, “Constitutional Organization, ” in Law in The Middle East, eds. Majid Khadduri and Herbert J. Liebesny (Washington: Middle East Institute, 1955), 3–27.
2
Gibb, “Constitutional Organization, ” 3.
3
Lambton, Political Thought in Medieval Islam, XVI–XVII.

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