The Place of the Sharīʿa in a Modern Muslim State: Between Juristic Reasoning (al-Istidlāl al-fiqhī) and the Common Good (al-naẓar al-maṣlaḥī)

Last June, at the invitation of the Moroccan Ministry of Endowments and Islamic Affairs, I gave a series of lecture at different Moroccan educational institutions. This is the text of the first lecture I gave, at the esteemed Qarawiyyin University in Fez. It was a great honor for me to give a lecture at this venue, which is arguably the oldest university in the world and without doubt one of the oldest centers for the study of Maliki law.

My lecture, which was delivered to the University President, senior administration, and graduate students in Islamic law, raised the question of the legitimacy of the modern state from the perspective of Islamic law, the sharia. I argued, contrary to certain Islamist groups and post-modern intellectuals, that there is no reason to believe that the modern state is per se illegitimate from the perspective of Islamic law.

Drawing on the Maliki tradition of Islamic law, I show that the legitimacy of decisions of rulers is not based on substantive conformity with the shari’a (or justice) as much as it is based on the consent of the ruled and the substance of the decision not being manifestly unjust. Based on this principle, I argue that states that enjoy popular legitimacy are, by virtue of that fact alone, substantially legitimate from the perspective of Islamic law. Accordingly, working toward achieving representative institutions that enjoy effective public consent is a crucial condition for the legitimacy of the modern Muslim state.

With regard to what it means for a decision not to be manifestly unjust, I also rely on Maliki authors to point out that jurists did not demand that particular decisions be in conformity with what jurists believed was the correct rule of the Shari’a, only that decisions not violate certain clear rules and principles of the Shari’a. Finally, I pointed out that what many radical Islamists take to be “ruling based on something other than what God has revealed” — and therefore is illegitimate or worse — is in fact nothing more than the state exercising its lawful discretion to organize the public interest through the issuance of positive laws. Far from undermining the shari’a, these help make the law more effective by replacing informal and discretionary methods of dispute resolution with clear rules.