An Introduction to Islamic Law (44 page)

The road to politicization began at the moment when the so-called reforms allowed the state to appropriate the law as a legislative tool, changing dramatically a thousand-year-old situation in which the typical Islamic proto-state administered a law neither of its own making nor subject to the ruler’s will to power. “In the modern state,” as Talal Asad poignantly observes, “law is an element in political strategies – especially strategies for destroying old options and creating new ones.”
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Values centering on the family as a discrete social unit, on property, crime, punishment, a particular sexuality, a particular conception of gender, of rights, of morality and of much else, have all been created and recreated through the law. Yet, the intractable presence of the state – the virtually all-powerful agent exercising the option of reengineering the social order – has preempted any vision of governance outside its parameters. To practice law in the modern era is to be an agent of the state. There is no law proper without the state, and there is no state without its own, exclusive law. “
Legal pluralism” can no doubt exist, but only with the approval of the state and its law. State
sovereignty without a state-manufactured law is no sovereignty at all.

If the way to the law is through the state, then Islamic law can never be restored, reenacted or refashioned (by Islamists or ulama of any type or brand) without the agency of the state. More importantly, none of these restorative options can be realized without the contaminating influence of the state, rendering extinct the distinctiveness of pre-modern Shari
a as a non-state, community-based, bottom-up jural system. This distinctiveness would be impossible to replicate. In the modern state, politics and state policy mesh with law, creating a powerful ideological and cultural technology as well as producing other potent instruments that are wielded in the service of the state in fashioning and refashioning the social order, whose habitus is precisely that machinery which produces the citizen.

And so when the Shari
a (however imagined) is reasserted in any Muslim country, as happened, for instance, in Iran in 1979 and thereafter,
the entexted conception combines with another conception of state-appropriated law to produce an aberrancy, one whose domestic advocates (seeking legitimacy) and external foes (seeking condemnation of Islamic revolutionary regimes) are equally happy, though for entirely different reasons, to call what ensues “Shari
a.” Given the absence – in political and popular circles – of knowledge about Shari
a’s anthropological past, both its advocates and its foes are left wandering in the dark. Inasmuch as the Shah’s state, like all states in the West and the East, virtually destroyed and then refashioned its social order and reconstituted (without much success) its moral fabric, the new Islamic Republic, inheriting an utterly inescapable state apparatus, attempted to reinstate the Shari
a and fill the perceived moral void through the now familiar tools of state engineering. The Shari
a became the state’s tool, for only to the state could it have been subordinated. Theft, homosexuality, extra-marital sex, music, American cultural icons and much else became the focus, if not the rhetoric, of the new reengineering in the name of the Shari
a. Yet, this reengineering was the work of a moralizing state, and was by no means dictated by the mechanisms associated with Shari
a’s traditional ways of functioning
.

At the end of the day, the Shari
a has ceased to be even an approximate reincarnation of its historical self. That it would be impossible to recreate it along with the kind of social order it presupposed and by which it was sustained is self-evident. To claim, however, that its modern expression can be altogether dispensed with is unrealistic. The Shari
a has indeed become a marker of modern identity, engulfed by notions of culture and politics but, ironically, much less by law.