4

The Legal, the Political, and the Moral

A truly positive science could never apprehend moral truths because its own premises had eliminated their ontological foundations. In a world of primary qualities, “is” and “ought” simply fell apart. . . . All the empirical investigation in the world could not overcome this fundamental problem. No matter how many trips you make to the well, you won’t bring up water with a sieve.

—Thomas A. Sprangens Jr., The Irony of Liberal Reason

The political begins when I can imagine myself sacrificing myself and killing others to maintain the state. The modern state has fully arrived not when it defends me against violence, but when it conscripts me into its armed force.

—Paul W. Kahn, Putting Liberalism in Its Place

Yes, a cunning device of Hell has here been devised, a horse of death jingles with the trappings of divine honours! Yes, a death for many has here been devised that glorifies itself as life. . . . I call it a state where everyone, good and bad, is a poison-drinker: the state where everyone, good and bad, loses himself: the state where universal slow suicide is called—life.

—Friedrich Nietzsche, Thus Spoke Zarathustra

In the previous chapter, we saw that the claim of good government within the bounds of the modern state is weakened upon a closer examination of its constitutional organization. Insofar as the rule of law is concerned, paradigmatic Islamic governance has little to learn from its modern counterpart, given that the nature of the separation between and among the legislative, executive, and judicial powers in Islam was a more accurate embodiment of the meaning and purpose of such separation and clearly superior to what obtains in the paradigmatic modern state. When considering the effects of this highly meaningful rule of law in Islam, combined with the fact that the jurists and their law were grassroots products woven fully into the fabric of their civil society, the system of Islamic governance emerges, in comparative terms, as a distinctly more favorable expression of just and democratic rule.

This conclusion, evident to anyone familiar with the Sharīʿa and modern constitutional theory, invites further inquiry into constitutional organization and furthermore calls the Muslim desire for a modern state based on Islamic principles into serious question. But this is only one among several other cardinal difficulties that Muslims must deal with as they eagerly set out on the path to emulate the Western state. In this chapter, we introduce two more vexing problems, aggregately—and even severally—sufficient to cause serious alarm if not immediate abandonment of this journey.

The first problem is represented in the rise in modern Europe of the distinction, indeed separation, between Is and Ought. I shall call this problem the rise of the legal, the latter term bearing a particular significance. The second problem has to do with the rise of the political, articulated most effectively by the neo-Hobbesianism of Carl Schmitt. These phenomena are interrelated, both historically and substantively, and their context is one that relates to a particular conception and practice of domination. I will argue that the rise of the legal and the political in the modern project renders them incompatible with the constituent forms of any Islamic mode of governance, because they contravene even the minimum degree of moral fabric that must exist in any such governance in order for it to be meaningfully called Islamic.¹

1. Morality and the Rise of the Legal

In his Problems of a Sociology of Knowledge, the German philosopher and sociologist Max Scheler avers that an essential characteristic of the modern West is “its obsession with gaining knowledge of control.”² Science and learning are given a new trajectory, whose aim is to explain nature in a detached way, but this ultimately serves to channel their energies for the “utilization and control” of nature and all that is in it.³ The characteristic is structurally tied to the Enlightenment notion of the autonomous self, captured as a modern paradigm by Kant’s “What Is Enlightenment?”⁴ For Kant, as for the emerging modern paradigm, individual and civilizational “maturity” is defined in terms of a profoundly autonomous impulse lodged in the Self, an impulse or will that not only directs one’s moral and rational behavior but also, and more importantly, ensures autonomy. As Paul Guyer has argued, Kant’s moral philosophy must be anchored in his foundational notion of freedom, which he regarded as “the quintessence of humanity”:⁵ freedom, that is, from the burdens of history, forms of authority, political oppression, material depredation, serfdom, corruption, and all those things we now know to have characterized European history for over a millennium prior to the Enlightenment. This freedom from authority, by reason of its detachment, is easily translated in practice into freedom to control and dominate.

Modern man, for Scheler, possesses an a priori will, an inherent “struggle for knowledge” that “grows out of an innate drive impulse.”⁶ What was seen as a disenchanted world by Weber⁷ was taken by Scheler as proof that this “innate drive”⁸ culminated in an all-inclusive “thought structure which has been the basis of all realistic thinking since the Renaissance,” one that “sprung from an underlying, a priori will- and value-structure centred upon the desire to dominate the material world.”⁹ Compared with Eastern thought structures, Scheler argued that (and this is quite relevant for us) Western “metaphysics rests on an entirely different consciousness of self and entirely different interpretation of man himself, viz. as sovereign being above all of nature.”¹⁰ This inhering attribute of domination—having become “the decisive axiological element”; a “systematic,” “not only occasional”¹¹ phenomenon; and a “central value attitude”—was the basis “from which the study of reality was undertaken.”¹²

Scheler’s theory, anticipating in this respect the work of the Frankfurt School¹³ and Foucault’s theories of discipline and power,¹⁴ extended the modern Western trait of control and domination to the Self, which, together with nature, is “conceived as being controllable and manipulable . . . through politics, education, instruction, and organizations.”¹⁵ Domination thus was the paradigmatic attitude not only toward “brute” and “inert” matter¹⁶ but also toward the Self, the human subject.¹⁷ Scheler argued, furthermore, that

the more recent history of the west and its independently developing cultural annexes (America, etc.) exhibits a systematic, increasingly one-sided and almost exclusive propensity to cultivate knowledge which aims at a possible practical transformation of the world. Cultural and religious knowledge has been pushed more and more into the background. . . . Internal life- and soul-techniques, that is to say the task of extending the power and domination of the will . . . over these processes of the psycho-physical organism¹⁸ . . . has undergone a far-reaching involution. . . . Positivism and pragmatism are merely the honest, very one-sided philosophical expressions of this real state of modern Western culture.¹⁹

If Scheler—along with Bacon, Vico, Nietzsche, Foucault, and the Frankfurt School thinkers, among others—is right that the modern system of Western knowledge is programmatically geared to the service of power, discipline, domination, and transformation of the world, then to know, stricto sensu, is to engage in power and in transforming the world.²⁰ It was indeed the seventeenth-century Bacon himself who was the first to fashion the statement “knowledge is power.”²¹ No form of modern knowledge, including the legal and the political, can escape engagement with the dynamics of this type of power.

The organic connection between this thought structure of domination, on the one hand, and morality and values, on the other, is of immediate concern to us. The connection was forged early on in the Enlightenment, when the so-called mechanical philosophers, such as Boyle and Newton, began to emerge. Until then, but increasingly less and less, Europe was dominated by (that is to say, Europe’s discursive formation was grounded in) modes of thought and conduct stemming from scholastic and Aristotelian ideas of matter driven by an intelligent, value-laden plan of motion. Bodies were thought to move by virtue of a world design animated by intent and infused with passion—an anima mundi. The seventeenth century produced a group of natural philosophers who reacted to the mechanical view of the world by asserting that nature has its own way of operating, which God had laid down in a working plan, after which he then left the scene, so to speak. Importantly, although God established this plan, He cannot be credited with an ex nihilo creation of the world. Nature just exists, is what it is, and is separated from actual creation, which is to say that the direct Catholic connection between creator and created had been erased, along with any connection between matter and spirit. But the mechanical philosophers went far beyond this position, arguing that matter is “brute,” “inert,” and even “stupid.”²² All spiritual agencies, or the anima, had been banished from the universe, rendering matter spiritually meaningless but still relevant in an anthropocentric, materialistic sense. If matter exists in a “brute” and “inert” form, then the only reason for its existence must be that of its service to man. Robert Boyle, a leading mechanical philosopher, represented his movement well when he elaborated the view that “man was created to possess and to rule over nature.”²³

Enlightenment mechanical philosophy emerged as paradigmatic, which is to say that modernity’s attitude of domination toward nature led to the canonization of the notion of “natural resources,”²⁴ now thoroughly normalized in modernity’s industrial social structures and government institutions and policies, not to mention every geography textbook taught in modern primary and secondary schools. “Natural resources”—a highly exploitative and violent discourse and practice—necessarily followed from denuding nature of all value. If nature is “brute” and “inert,” then one can deal with it without any moral restraint, which is precisely what has happened since the early nineteenth century.

This is not all, however. The more important point in the isolation of matter as “brute” and “inert” is the resultant crucial phenomenon of separating fact from value, which is yet another major and essential factor in the modern project. If matter is, in itself, devoid of value, then we can treat it as an object. We can study it and subject it to the entire range of our analytical apparatus without it making any moral demands on us.²⁵ This separation allowed for the emergence of what has been called objective and detached science, which finds parallels in the academic fields of science, economics, business, law, history, etc.—all of which pretend to some sort of objectivity, always with the aspiration to be as detached and thus as “scientific” as pure science. In all of these disciplines, fashioned and nourished by the modern state,²⁶ the scholar can study the Other dispassionately, without it making any value-laden or moral demands on him. For to allow such demands to be made would contradict the weltanschauung,²⁷ the thought structure of domination in the first place.²⁸

The modern state and its sovereign will, represented in the law, was not only an integral part of this weltanschauung but also one of its chief architects. By the beginning of the nineteenth century, when John Austin was writing his famous lectures on jurisprudence,²⁹ the state had become such a dominant legal reality that any respectable consideration of jurisprudence had to take serious account of the state’s politicolegal project. This accounting for the state’s role was of course already present in Hobbes,³⁰ who had argued that the only source of the law is the will of the sovereign. Law can achieve validity only by virtue of a government that has the power to command and to declare the law to be valid. If English judges make law, Hobbes asserted, it is by virtue of the fact that their legal findings and discoveries unravel the sovereign’s will to power.³¹ This was the beginning of the notion of political sovereign will. Furthermore, and as added background to the later rise of analytical positivism—generally regarded as having been founded by Austin himself—Hobbes considered the standards of ethical judgment to turn on man himself, not on an active agency of a cosmic order or divine plan. Moral rules are discovered by human reason, dictated by considerations of the well-being of society, of the importance of preserving life, and of curbing violence by one man against another.³² To say that Hobbes’ theory—i.e., that morality and ethics must rest on objective laws discovered by human reason, not on tradition or scriptural authority—ushered in the modern conception of the relationship between law and morality is to state what is now taken for granted in philosophical circles.

Transcending Hobbes—and even Hume and Bentham³³—Austin brought the sovereign’s law to the forefront of the debate over law and morality. He took strong exception, for instance, to Sir William Blackstone’s thesis that no human law can be deemed valid if it should conflict with divine or natural law. “The existence of law,” Austin declared, “is one thing; its merit or demerit is another. Whatever it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law.”³⁴ Blackstone, Austin writes, may have meant

that all human laws ought to conform to the Divine law. If this be his meaning, I assent to it without hesitation [because] the obligations they impose are consequently paramount to those imposed by any other laws, and if human commands conflict with the Divine law, we ought to disobey the command which is enforced by the less powerful sanction; this is implied in the term ought; the proposition is identical, and therefore perfectly indisputable—it is our interest to choose the smaller and more uncertain evil, in preference to the greater and surer. If this be Blackstone’s meaning, I assent to his proposition, and have only to object to it, that it tells us just nothing.³⁵

What Blackstone must have meant, Austin writes, is that no human law that contradicts divine law is law. And if this were Blackstone’s intention, Austin asserts, then it was nothing but “stark nonsense.” As Austin points out, the most pernicious laws standing in opposition to the divine law “have been and are continually enforced as laws by judicial tribunals.”³⁶

Austin’s sharp conceptual separation between the law of the sovereign and the moral law reflects the most fundamental tenet of legal positivists—such as the influential J. C. Gray, Justice Holmes, and others—who take it that law, irrespective of how immoral it may be, remains the valid law of a commanding sovereign.³⁷ The essential epistemological character of legal positivism is, then, the denial of a logical entailment or of any necessary connection between law as it is and law as it ought to be.³⁸

This important distinction between Is and Ought is by no means uniquely Austinian. It has indeed permeated, in the most complex of ways, the fiber of modern moral philosophy. As Charles Taylor has cogently argued, “the fact/value split” has become “a dominant theme in our [twentieth] century” and has undergirded “a new understanding and valuation of freedom and dignity.”³⁹ Representing a cornerstone of the Enlightenment project and expressed powerfully by the Kantian notion of autonomy,⁴⁰ freedom ceases to denote God’s omnipotence and the capacity of absolute choice and becomes instead an expression of man’s own natural powers of reasoning. Human reason, in the here and now, becomes the sole arbiter in the project of objectifying the world, of submitting it to its own demands, which are instrumentalist in the first order. The pursuit of happiness, utility, and much else that is subservient to these imperatives—such as preservation of life and protection of private property—become natural rights derivable from the natural order by what is/was seen as far-sighted, calculating reason. Formerly restricted by the power of revelation, reason now becomes free, expanding to overtake the authority of all scriptural competitors.⁴¹

The most central theme here is that the sources of reason—and thus of obligation, duty, and such notions as the Kantian categorical imperative⁴²—now reside within the self, an inner human power,⁴³ not an intellectual emanation of a cosmic order (be it Aristotelian, Platonic, or otherwise) or an anthropological, Protagorean reality,⁴⁴ whence freedom, much like reason, breached its relations with an external world to become part of the self, originating and operating entirely within its confines. Human dignity now also attaches to the notion of sovereign reason, for dignity can be attained only by the realization of this sovereignty in the regulation of human affairs. This, I think, is the appeal of Kant’s categorical imperative, an appeal that has absurdly persisted in Western philosophy overall, despite the fact that this same philosophical tradition simultaneously and effectively debunked Kant’s arguments, showing them to be at best vacuous and at worst groundless.⁴⁵

The Is/Ought dichotomy is therefore representative of the conflict between the instrumentalist manifestations of reason and, to a great extent, of the remnants of the Christian legacy of morality and virtue. This is precisely why, in an influential article, G. E. M. Anscombe made (and rightly so) the grave charge against Kant’s notion of duty, that it is a Christian intrusion, a leftover from religious Europe that was surreptitiously allowed to wear an Enlightenment garb of reason within his notion of the categorical imperative.⁴⁶ What Anscombe argued in philosophy, Carl Schmitt, as we will see, argued in politics.⁴⁷ The Is/Ought distinction, as Nietzsche recognized,⁴⁸ is the outcome of particular historical circumstances, of a certain philosophical development that has given new meaning to the notions of dignity, freedom, and reason.⁴⁹ This is also why Charles Taylor asserted, along with Alasdair MacIntyre, that “the modern meta-ethics of [the] fact/value dichotomy does not stand as a timeless truth, at last discovered” in the way we have come to discover the “circulation of blood. It makes sense only within certain ethical outlooks.”⁵⁰ But the fact is that it was—like much else in modernity—made to be a sort of timeless and, moreover, universal truth designed to “outrageously fix the rules of discourse in the interests of one outlook, forcing rival views into incoherence.”⁵¹ The outrageousness of this state of affairs stems not only from the biases involved and the suppression of competing philosophical narratives but also from the distinct likelihood of its being entirely false. Both Taylor and MacIntyre have advocated the contingent, contextual nature of the split and have argued that no moral reasoning can “do without modes of thinking which the split rules out.”⁵² Moreover, in some juristic circles it is now recognized that the nearly absolute distinction between Is and Ought—the result of Cartesian dualism—has generated and aggravated the crises in American and European legal theory.⁵³

If the split between Is and Ought was initially and rudimentarily occasioned by Hobbes and Descartes, philosophically problematized by Hume,⁵⁴ and translated into legal positivism by Austin, it was Nietzsche who raised the positivist bar by effectively denying the validity of the split altogether, a denial not effected by harmonizing the two or at the expense of the fact side of the equation; rather, the denial was accomplished by sacrificing value, the Ought, which appears in his philosophy to be deprived of all worth. Nietzsche’s concept of truth as it relates to his doctrine of the will to power makes the Ought entirely vacuous and illusory.⁵⁵ As Raymond Geuss has argued, Nietzsche thought it impossible to have a hold on “what ‘ought’ could conceivably mean at all,” on “what non-illusory sense it might have for anyone to think that something ‘ought’ to be the case which in fact is not. . . . The world is just what it is, a huge, historically and spatially extended brute fact.”⁵⁶

Nietzsche, in other words, has taken Descartes’ dualism to its most extreme conclusion. In many ways, Nietzsche turned European Christian morality of the Thomist type right on its head: the organic connection between Ought and Is in Christendom was bifurcated in Descartes and Kant and obliterated altogether by Nietzsche. True, Austinian legal positivism did not go so far as Nietzsche’s scheme, but it certainly allocated no real place for the moral in the law (a position slightly modified later by H. L. A. Hart’s critics, who advocated what they called “internal” moralistic interventions in the law).⁵⁷

Now, the distinction between Is and Ought in modern law, a flagrant standard, can never obtain in any form of Islamic governance if we insist on even a minimal moral definition of what Islam is or can be. As we will see, this minimum, however relative, far exceeds in density and texture the “internal” moralistic interventions in modern law.

In premodern Islamic tradition and its discourses, including its Qurʾān (obviously the founding text), the legal and the moral were not recognized as dichotomous categories, Is and Ought and fact and value being one and the same. The distinction did not exist in any of the ways we have come to draw them in the modern world. Nor did such a distinction exist in pre-Enlightenment Europe. The leading moral philosopher Alasdair MacIntyre has aptly observed that in Latin, the lingua franca of pre-Enlightenment Europe, as well as in ancient Greek, “there is no word correctly translated by our word ‘moral’; or rather there is no such word until our word ‘moral’ is translated back into Latin,” i.e., moralis.⁵⁸ The same is true of pre–nineteenth century Arabic—also the lingua franca of Sharīʿa and Islam—and, insofar as I know, of all other major premodern Islamic languages: the word “moral” has no precise equivalent and bears none of the major connotations we now associate with the term in moral and legal philosophy. Nowadays, many insist that the term akhlāq (as used by the ethicist Miskawayh and his ilk and also in semijuristic works)⁵⁹ is equivalent to our modern term “moral.” On both historical and philosophical-linguistic grounds,⁶⁰ however, this claim may easily be falsified. As MacIntyre has observed with regard to the post-Enlightenment context, the same process of projecting the present onto the past and of retrieving a modernized past into the present took place in Islam as well. The “moral” was brought to bear upon the linguistic (not conceptual) repertoire of medieval Islam, retrieving from it akhlāq as an equivalent, if not as a synonym.⁶¹

If the term “moral” as we understand it in modernity did not exist in premodern Islam, then the distinction between the “moral” and the “legal” could not have existed, either in the Sharīʿa at large or in the Qurʾān in particular. One can argue even further, as I have done elsewhere, ⁶² that the very term “law” is ideologically charged with Foucauldian notions of surveillance, inconspicuous punishment, and hegemony over and subordination of the docile subject, all of which mechanisms of control (at the very least) make our modern notion of law, and therefore of morality, quite different from any earlier legal system and therefore from earlier notions of “law”—those of pre–sixteenth century Europe included. What is “legal” in the Qurʾān and in the Sharīʿa that was based on it is also equally “moral” and vice versa. In fact, we might even reverse the modern bias and argue (conceding for the moment to modern vocabulary)⁶³ that the legal was an organically derivative category of the moral, the latter being the archetype. Accordingly, to understand this moral archetype, we must uncover the massive legal contributions of the Qurʾān to the formation of Sharīʿa and hence to the fashioning of Muslim subjectivity.⁶⁴ We must understand and appreciate its moral message and moral structure as integral to, and as enveloping, its “legal” conception and discursive practice.

The Qurʾān, singularly retaining immense religious value for modern Muslims, has from the beginning provided Muslim believers with a cosmology entirely grounded in moral natural laws, a cosmology with perhaps far more persuasive power than any of its Enlightenment metaphysical counterparts and one that had powerful and deep psychological effects.⁶⁵ The Qurʾānic moral arsenal was thus embedded in a holistic system of belief, in a cosmology that comprised a metaphysic. In fact, it may be argued that this cosmology was itself part of an enveloping moral system that transcended the categories of theology, theosophy, and metaphysics. In this broadest sense of cosmology, we might argue that the Qurʾān offers no less than a theory of cosmological morality of the first order, which is to say that Qurʾānic cosmology is not only profoundly moral but is also itself constructed, both in form and content, out of a moral fiber. Everything that this universe contains was created for humans to enjoy, not in a utilitarian manner but rather in ways that show deep ⁶⁶ moral accountability, translating into an acknowledgment that what we do we do for ourselves—certainly as individuals but, more importantly, as members of a social group. Actions, therefore, have universal consequences despite our, and their own, ephemeral existence.

The Qurʾānic narrative of creation, which bears upon the modes of human action and behavior, is single-mindedly geared toward laying down the foundations of moral cosmology. The heavens and the earth were brought into being according to the divine principle of Truth and Justice (ḥaqq), Sūrah 39:5, among many others, announces. Here, a strong conceptual connection is forged with the profoundly significant declaration, made in the same Sūrah two verses earlier, that the Qurʾān itself was likewise revealed on account of the same principle of Justice (39:2). The message of the Qurʾān, destined to a human society, is therefore an extension, if not an integral part, of the entire project of creation, sanctioned, moreover, by the same rules and principles.

Yet God’s creativity is not only about bringing into existence the colossal and magnificent universe ex nihilo but, more often and ultimately, about His secondary laws of generation and corruption.⁶⁷ The marvel of macroscopic creation is posited largely as the background against which colorful and lively microevents of creation and “creative” destruction are elaborated in a nearly infinite manner. Here, the physical world is not a scientific site subject to cold and bland rational explanation and calculation but rather a natural world saturated with spirituality and psychology, one wholly subservient to moral actions taken by the very humans that were created by God.⁶⁸ If mountains tremble,⁶⁹ seas split,⁷⁰ and “nations” are abruptly wiped from the face of this earth,⁷¹ it is all because of moral failure or, at least, because of morally precipitated laws of nature. The same is true of the rise and setting of the sun,⁷² the boon of plowed fields and good earth,⁷³ famines,⁷⁴ earthquakes,⁷⁵ storms,⁷⁶ and the consequent devastation of the earth’s produce. Everything in the universe “runs with an appointed term” (kullun yajrī ilā ajalin musammā),⁷⁷ a term whose end arrives with the Day of Judgment, the Day of Reckoning, when the Divine Scales will weigh, for everyone, even the smallest acts one had performed, those “atoms of good” that will be measured against the “atoms of evil.”⁷⁸

The Qurʾānic laws of nature are thus moral and not physical. They are set in motion for explicable, rational reasons, but these reasons are ultimately grounded in moral laws. If things come into being or evaporate into nothingness, it is because the moving force—the philosophers’ Prime Mover—is determined by the moral design. The entire enterprise of creation, re-creation, and death—that is, the series of laws governing the operation of the universe—is specifically designed by divine munificence and power for the single purpose of challenging humans to do good. This Qurʾānic narrative of “doing good” is all pervasive, and it is captured most potently in the opening verses of Sūrah 67 (aptly titled Sūrat al-Mulk, or Sovereignty), where God’s omnipotence is causally and exclusively tied to the natural project of generation and corruption, which is in turn causally connected to the challenge God poses to humans to undertake good works: “Blessed is He the possessor of Sovereignty, the Omnipotent, He who created death and life that He may try you: which of you is best in conduct; and He is Almighty, All-Forgiving.”⁷⁹ The Qurʾān, before any Sharīʿa came into being, had already succeeded in establishing an extraordinary benchmark by which all human conduct is evaluated with exclusive reference to a divinely grounded moral principle.⁸⁰

In commenting on Sūrah 30, M. Pickthall observes that the prophecies in this Sūrah are

only the prelude to a proclamation of God’s universal kingdom, which is shown to be an actual sovereignty. The laws of nature are expounded as the laws of Allah in the physical world, and in the moral and political spheres mankind is informed that there are similar laws of life and death, of good and evil, action and inaction, and their consequences—laws which no one can escape by wisdom or by cunning. . . . Those who do good earn His favor, and those who do ill earn His wrath, no matter what may be their creed or race; and no one, by the lip of profession of a creed, is able to escape His law of consequences.⁸¹

The law of consequences is thus the law of nature, put in the service of accomplishing the greatest grade of good. Life and living are in effect the ultimate test, for the Qurʾān is abundantly clear as to why man was created: “We have placed all that is in the earth as an ornament thereof that We may try them: which of them is best in conduct.”⁸² Ignorance may lead some people away from this truth, rendering them—despite the fact that they are always given a second chance to repent and join the Straight Path⁸³—incapable of comprehending the test’s importance. The laws of nature are designed to serve the promotion of good in, as well as the elimination of evil from, this world: good-doers (muṣliḥūn) are blessed with God’s bounties, which range from abundantly productive land—naturally irrigated—to pleasant living and healthy and happy families and children. The abundance of the earth and good family and social surroundings are replaced in the Hereafter by equally wondrous existence. In other words, the Hereafter is the continuation of this life,⁸⁴ with a difference: this life continues to be a long test aimed at persuading the evildoers (mufsidūn, mujrimūn) to change their ways, to repent, unless, of course, they belong to the hopeless and hapless wrongdoers who invite an immediate judgment in the Here and Now. The Hereafter, on the other hand, awaits the results of this test; it is the place where people are classified once and for all. The fire of Hell is the perfected equivalent of storms and earthquakes that destroyed hopeless “nations,” while Paradise represents the actualized supreme ideal of good earthly living. The laws of nature are thus everywhere, operative both in this life and in the hereafter, although they may present themselves in various forms according to need. But whatever the laws of nature may be, they are ultimately God’s laws that He designed and installed with a view to accomplishing a moral purpose in the world. Nothing other than doing—and being—good seems to matter.

If God’s laws of nature are grounded primarily—if not entirely and exclusively—in conative moral principles, then the universe is imbued with, and woven from, a moral fiber whose warp and woof are designed to promote good and suppress evil (al-amr bil-maʿrūf wal-nahy ʿan al-munkar).⁸⁵ This conativeness dictates that, as part of the indefinable omnipotence through which God created the World, there must be, and therefore there is, an omniscience whose main trajectory and ultimate task is the implementation of the moral laws of nature. If the laws are intelligent, so are the forces by which they are set in motion and operation. If it is important for God to be the All-Listener and the All-Knowing, it is precisely because He has an omnipresent net of surveillance that knows of and evaluates the smallest act, although He does so not only in accordance with moral laws but also, and primarily, for the sake of the human social order.

But what exactly does God want from His human creatures? Why does He repeatedly urge them to believe in Him? What does it mean to believe, or to be a believer (muʾmin), in the first place? Answers to these questions are answers that the Sharīʿa jurists arrived at, which explains the obvious fact that the ethic of the Qurʾān not only pervaded the Sharīʿa but also constituted it. To begin with, being Self-Sufficient and All-Powerful, God does not really need humankind, although, strikingly, He is explicitly grateful (shakūr)⁸⁶ for their good deeds. This gratefulness, which stems from His kindness and mercy (raḥma), should not be mistaken as a reflection of any favors that human beings do for Him. If anything, He is the Bounty-giver (Razzāq)⁸⁷ Who has “honored the children of Adam” and Who “carried them on the land and the sea, giving them distinct preference over many of those whom [He] created.”⁸⁸ All forms of human subsistence, indeed, their very existence, are owed to Him, to His boundless mercy and giving. The Qurʾānic God expects humankind to be appreciative of His blessings and all that He created for humanity to enjoy and cherish. What He dislikes is not only a lack of appreciation but also misconduct and abuse (ṭughyān) of these gifts and blessings.⁸⁹ Such misconduct and abuse are indeed expressions of this lack of appreciation. Those “abusers” and, therefore, deniers of God’s graces and bounties are the oppressors (ṭāghūn, kāfirs). As Izutsu has convincingly argued, the conceptual derivatives of K.F.R. are among the most outstanding vocabularies in the Qurʾān, with a “semantic field” that engenders the deepest and richest relationship to the concept of “belief” (īmān),⁹⁰ another central Qurʾānic concept. To be a kāfir, a nonbeliever, is to deny God’s good works in nature, to deny the blessings (niʿam; sing., niʿma) that humans live by and experience in every moment of their existence, and to behave badly toward other people and things, which is to say that one is behaving badly toward God’s work and creation. Human beings thus owe God the duty of genuine appreciation (shukr), the indicant and measure of belief.

Thus, to be a true believer (muʾmin), a genuine Muslim (min al-muslimīn), is to appreciate the facts of having been born (khuliqa/khalq); of having been given family solidarity, family love, and compassion (dhawī al-qurbā); of having received the gifts of food and pleasant beverages, especially the simplest boon of life-giving water; in sum, of enjoying all the blessings of the world that surround humankind by virtue of God’s infinite generosity. To behave badly toward any of these God-given gifts is not only to be thankless or to deny (yakfur/kāfir) God’s Signs (āyāt) but also to transgress (mujrim, ẓālim).⁹¹ And the Qurʾān makes it all too obvious that a transgressor’s final lodging is in less than a pleasant abode (yuṣlā nāran . . . wa-sāʾat maṣīrā).⁹²

We have thus far remarked on the Qurʾānic conceptual dichotomy and antonymic distinction between believing/īmān and dis believing/kufr. He who does not deny God’s blessings and His sole sovereignty is a believer. But what is it that constitutes the Qurʾānic believer, the muʾmin, beyond his or her full acknowledgment of, and gratitude for, God’s blessings? Any perceptive reader of the Qurʾān will immediately note the heavy emphasis placed throughout the text on the “act of performing good” (yaʿmalūn al-ṣāliḥāt).⁹³ In its different variants, it occurs at least 120 times, without counting other conceptual cognates such as khayrāt and aḥsana/ḥasanāt (e.g., “taṭawwaʿa khayran,” “mā yafʿal min khayr,” “man jāʾa bil-ḥasana,” all of which mean “to do good”).⁹⁴ It is one of the most common and oft-repeated expressions in the Qurʾānic repertoire.

Ṣāliḥāt is conceptually associated with ajr, the latter meaning a “fee,” “reward,” “remuneration.” Those who perform ṣāliḥāt will enter paradise, as many verses attest.⁹⁵ But the conceptual relationship here is also significantly contractual. Īmān must be proven, and only good works can be the effectual means. Once performed as solid proof of īmān, the ṣāliḥāt will yield an ajr, resulting from performance. Thus, God in effect makes a contractual offer (amounting to calling the individual to Islam), and the believer enters into a covenant/contract/ʿahd with God should he accept God’s offer. The entitlement to the ajr, the consideration, is the very fact of performance, but the consideration itself is a ticket to Paradise. Hence the inviolability of the logical and epistemological connection between belief/īmān and good works/ṣāliḥāt. Izutsu, who conducted the most detailed and serious research on Qurʾānic semantics, avers that “the strongest tie of semantic relationship binds ṣāliḥ [āt] and īmān into an almost inseparable unit. . . . Where there is īmān there are ṣāliḥāt or, ‘good works,’ so much so that we may almost feel justified defining the former in terms of the latter, and the latter in terms of the former.”⁹⁶ There is thus an inextricable organic and structural relationship between “belief” and “good conduct.” If one entails the other, then there is also an immediate logical and epistemic connection between them, which is to say that the presence of belief apodictically entails the presence of good works and vice versa. To believe in God as the sole sovereign is at once to accept, as Izutsu soundly puts it, a “whole practical code of conduct”⁹⁷ that is heavily geared toward “good works.”

As intimated earlier, the Qurʾānic ethic centering on good works did not only pervade the Sharīʿa to the core, shaping its warp and woof, but also remained central for Muslims’ popular practice throughout the centuries and until today. Yet the Qurʾān does not constitute law in a technical sense, which the Sharīʿa most certainly does. It consists of a relatively plain narrative, devoid of any intricate lines of legal reasoning that were created and developed by the later jurists of Islam. But this is in no way to say that this body of legal reasoning, as impressive as it may be, created a distinction between the legal and the moral. We must always bear in mind that the modern distinction was occasioned by a particular view of domination and power, as we have already seen. It reflected the recognition of the “Is-ness” of the political, earthly sovereign. The “Is-ness” was a political and sociological construct, not a divine will, squarely anchored in and calculated by cosmic moral design. Even if Sharīʿa’s law at times looks and sounds as if it treats the world with technical, razor-sharp legal rigor, the master principles that such technical reasoning served were ethical ones. This is not to say that there is a perfect identity between the Qurʾānic ethic and that of the Sharīʿa, but it is to say, emphatically, that if it is true—as many philosophers have already noted—that the distinction is modern, then the Sharīʿa could not have known it. But this is an argument by implication. More directly, there is absolutely nothing in the Sharīʿa and in premodern Islam as a whole to give rise to this distinction. And any argument that such a distinction existed in the Sharīʿa is one that ignores not only the thrust of the Sharīʿa as an ethical project but also both the quality and significance of the modern European political and legal divide between Is and Ought,⁹⁸ thus navigating at the surface of this profoundly, and now universally, systemic distinction.

Paradigmatic modern law is positive law, the command of the fiction of sovereign will. Islamic law is not positive law but substantive, principle-based atomistic rules that are pluralistic in nature and ultimately embedded in a cosmic moral imperative. For Muslims today to adopt the positive law of the state and its sovereignty means in no uncertain terms the acceptance of a law emanating from political will, a law made by men who change their ethical and moral standards as modern conditions require. It is to accept that we live in a cold universe that is ours to do with as we like. It is to accept that the ethical principles of the Qurʾān and of centuries-old morally based Sharīʿa be set aside in favor of changing manmade laws, laws that have sanctioned nothing less than the domination and destruction of the very nature that God has given humankind to enjoy with moral accountability. Whether to accept or not to accept is a question that only Muslims can answer for themselves. Our own point, however, is that—observed from a distance—Muslims have very little reason to opt for the modern state’s law, when they have enjoyed a legal culture that has insisted for more than twelve centuries on a law paradigmatically structured and fleshed out by an overarching moral source.⁹⁹

2. Sacrifice and the Rise of the Political

The rise of the legal state (with its positivist outlook) was accompanied by the rise of the political, a distinctly Schmittian concept that has both disturbed and captivated political and legal thinking for over half a century.¹⁰⁰ Fundamentally, Schmitt was Hobbesian in his overreaching and controlling doctrine that power, earthly political power, was the new God.¹⁰¹ The genealogy of the political, like that of the legal, lies at the moment when Is was divorced from Ought,¹⁰² when politics began to exist and strove for its own sake. Power and positivist norms became inseparable, just as the political and the legal became a near, if not total, identity within the state. “In the world as it is, the final arbiter of things political is power and not morality.”¹⁰³

The political is not a distinct field of power relations, nor is it just a matter of politics, economy, ethics, or science. The political is an all-encompassing, pervasive phenomenon that intrudes upon all fields, upon existence itself. The political is the name of an age, just as other ages are characterized as “bronze” or “technological.” It is a field of action that “pervades the whole of life,”¹⁰⁴ and any enquiry into it amounts to an enquiry about the modern “order of human things.”¹⁰⁵ The violent nature of the political, exclusively and specifically framed within the theoretical context of killing or being killed, allows it—nay forces it—to draw on all other fields for support, subsuming them in the process.¹⁰⁶

Violence constitutes the main and most reliable source of power in the realm of the political.¹⁰⁷ The political is therefore the highest manifestation in the modern project of the separation between Is and Ought and between fact and value. More than the modern legal and ethical spheres—two fields that struggle, however unsuccessfully, with notions of justice and moral good—the political is exclusively and adamantly concerned with “what is,”¹⁰⁸ with a Nietzschean world just as it is, “a huge, historically and spatially extended brute fact.”¹⁰⁹

The quintessentially defining feature of the political is the distinction between friend and enemy, a distinction that shapes the form and content of politics. The distinction also gives the political its status as an autonomous sphere and a central domain,¹¹⁰ subordinating all else, since it is about life and death. In other words, the political arises precisely at the moment the distinction is born, when a society begins to conceive of its existence as one of violence and war, as being in a “state of nature” where survival is constantly at stake. “The political is the most intense and extreme antagonism, and every concrete antagonism becomes that much more political the closer it approaches the most extreme point, that of the friend-enemy grouping.”¹¹¹ Violence and enmity are the substrates of the political as well as its potential, but the distinction of friend-enemy is its ever-present and realized constitution. Violence and enmity may subside and rise, but the distinction is both omnipresent and always materialized. That violence and war erupt at times but not always does not make the exception any less an overarching and imminent reality. For it is from this state of exception that the political not only derives its meaning but finds its own raison d’être. Political behavior is thus shaped under the spell of this state of exception, and, being autonomous, the political defines and colors all other spheres of human action.

Although Schmitt’s concept of the political is profoundly Hobbesian, he differs from Hobbes in one important respect. Whereas Hobbes was largely concerned with the internal body politic and with developing a theory of earthly sovereignty, Schmitt is mainly interested in the outer realm of the body politic, where “one fighting collectivity of people confronts a similar collectivity.”¹¹² The state for him is only one player in the field of the political, although he does not doubt that it remains the most central one.¹¹³ The state is not only the “sole subject of politics” but also its “bearer.”¹¹⁴ This being the case, the Schmittian political is a fruitful site of analysis, especially in the context of the relationship between the state—as the most significant location of the political—and the citizen.

The citizen is a multilayered concept. We will deal with one significant (psychological) aspect of the concept in the next chapter, but another (political) aspect we must discuss now. We take it for granted that no one can live outside of citizenship, for no one can find an independent space outside of the state. There is no neutral site between one state and another and nothing that allows a human being to be just a human being, one without political, state-based affiliation. The citizen therefore is as much of the state as the state is of the citizen; they are as conceptually linked with each other as the implications residing in the concepts of “parent” and “child,” since one demonstratively entails the other. Furthermore, while it is immaterial for us to decide on whether nationalism is the cause or effect of the Schmittian ontological distinction, it does matter for us that if the nation-state is by definition made of the nation, then the citizen, who makes and is made by the nation—at least logically and fictionally—squarely belongs to the state.

It is a key concern of ours—in this chapter and the next—that the modern subject is by definition a nationalized entity, a subject that identifies with the nation as a way of life.¹¹⁵ If the state is the location of the nation, and if nationalism is a defining form of politics,¹¹⁶ then the citizen must be comfortably located within the political. To be a citizen therefore is to conceive of oneself as the site of the political as a way of life. It is also to identify the self with the state as the sovereign representation of one’s nation. The citizen constructs the political meaning of his or her citizenship by virtue of accepting and absorbing, well-nigh as a second nature, the meaning of the state, of territory, and of the greater family—the nation.¹¹⁷ One implication of this epistemic-psychological assimilation is that it is inherent to the citizen to view the self, his own citizenship, as possessing the capacity to sacrifice himself for the state. The conception of this capacity is inextricably tied to the Schmittian distinction, since, as Kahn put it, “only the political has the power over life and death. . . . The political begins when I can imagine myself sacrificing myself and killing others to maintain the state. The modern state has fully arrived not when it defends me against violence, but when it conscripts me into its armed forces.”¹¹⁸ The full meaning of citizen and citizenship is therefore not one that emerges by virtue of birth or a formal affiliation with the state and its nation but rather one that constitutes itself by the readiness for self-sacrifice. This readiness is taken for granted by the state; it is a potential that is embedded in the nation qua nation and in its members as citizens. Schmitt summed it up in horrifying terms when he wrote: “With each newly born child a new world is born. God willing, each newly born child will be an aggressor.”¹¹⁹

The haunting image of the Schmittian state of exception arrogates to the state the license to kill or have its citizens killed for its own sake. But this killing, as Kahn argued, can never be

justified on the grounds of any moral calculus. The fundamental moral message of the West is that there shall be no killing: “Thou shalt not kill.” But the politics of the West has been a long story of killing and sacrifice. This was not just the story of colonization of non-Western populations, but also of the mass sacrifice by Western states of their own political communities in the wars of the nineteenth and twentieth centuries. As Michael Waltzer writes, “surely there has never been a more successful claimant of human life than the state.”¹²⁰

It is the state as “a successful claimant of human life” that generated this massive level of violence. It is the conceivability of the conscription of “each” of Schmitt’s “newly born children” that created both the possibility and reality of this violence. And all this is, in effect, for the purpose of the state and for the purpose of its self-perpetuation.

If the modern state is also the embodiment of the legal and its positivism, as was argued in this chapter; if its constitutional structures in their best form are no more than a weak representation of the rule of law (chapter 3); and if it is the new God that commands life and death by virtue of a positivist, sovereign legal will, then dying for it presents a significant conceptual problem in the context of an Islamic state. In other words, how can Muslims aspiring to build an Islamic state justify sacrifice for a state that could not and cannot subscribe to the moral, that could not and cannot commit except, at best, to an amoral way of being, to positivism, facticity, and Is-ness?

As a moral entity, the modern state has proven unsupportable even in theory. The failure of Hegel’s theory of the ethical state and the oblivion to which it was sent by political scientists and most philosophers is a case in point.¹²¹ Such theories fly so much in the face of state realities that they have no place except for providing intellectual play. The modern state cannot be constructed on ethical grounds, nor can it ontologically operate as a moral entity. It “does not seek to enter the moral realm,”¹²² nor is it its duty “to make us good.”¹²³ Any moral argument adduced in politics and in the framework of state domination is, in the final analysis, nothing but a political argument, a way to legitimize “political ambition.”¹²⁴ Nietzsche went as far as to describe it as “the coldest of all cold monsters . . . whatever it says, it lies—and whatever it has, it has stolen.”¹²⁵ If half of this much is accepted, then how can the concept of the citizen’s sacrifice be reconciled with the paradigm of Islamic governance that we charted earlier? (The question, the reader will note, assumes that the concept of citizen is posited as acceptable to the modern Islamic state, but as we will discover in the next chapter, this concept is itself riddled with serious problems and therefore can in no way be taken for granted.) In other words, how does the concept of sacrifice for the sake of an amoral entity fit within a context of Islamic governance? The answer, relatively simple, is that Islam never knew the concept of conscription. Nor did it, in any effective way, command life and death for anyone’s sake, not even for the sake of God. The very concept of conscription as potential sacrifice was unknown. And as we will see shortly, there was nothing in jihād, the chief theory of war and peace, to command this sacrifice.

Executive sultanism, effectively the military branch, depended on slave-soldiers whose lives and careers were consecrated to the business of war and violence. These soldiers were purchased or snatched from their families; trained according to individual capability as foot soldiers, cavalry, military scribes, or commanders; and spent their lives in the service of the sultan as paid employees (through stipends, land allocation, etc.). They also generally lived apart from the civil population, leading a different lifestyle, and many did not even speak the local language. On the other hand, the ordinary Muslim normally did not engage in war, and the only venue by which he was permitted by the Sharīʿa to do so was through jihād.

The Sharīʿa juristic works, long and short, always insisted on the distinction between two types of jihād (commonly translated as “holy war”): mandatory and optional (respectively, farḍ ʿayn and farḍ kifāya).¹²⁶ However, in the conception of the Sharīʿa, not every war or battle was one of jihād. Since Muslim sultans and kings (mulūk) warred on each other more often than they did on non-Muslims, many wars and battles never qualified as jihād, and they remained the business of these sultans, kings, and their slave-soldiers. In fact, the great majority of times, they occurred at quite a distance from the civil populations. But when the war was launched on non-Muslims as an offensive act, the jurists insisted that participation in the jihād be optional;¹²⁷ that is, those who could and wanted to join might do so, bringing with them their own weapons.¹²⁸ The option to withdraw from the jihād campaign remained valid until the moment the call for battle was announced—but not after, for once preparation for battle was initiated, the jihādist was bound to stay and fight.¹²⁹

However, if jihād is defensive—defined as a situation in which non-Muslim armies conquer or attempt to conquer Muslim populations (not just vacant land)—then it becomes an individual duty.¹³⁰ The duty does not extend to all Muslims (who must be male and of age) within the dynastic territory but only to those living close by the threatened area.¹³¹ Underlying this conception of jihād—especially after the eighth century—is always the tacit assumption that the mainstay and core military forces are not the civilians who join the jihād effort but the ranks of the slave-soldiers in the paid service of executive sultanism. (This historical reality comes to full life in the multivolume works of Islamic history, one example being the accounts of the repeated efforts of Egyptian sultans to curb the Crusading armies invading Cairo and Damietta.)¹³²

While acknowledging jihād as an important obligation, the Muslim jurists, without exception, did not privilege it over mundane obligations. Debtors, for instance, could not join the jihād campaign, whether defensive or offensive, without permission from the lender.¹³³ Here, a private obligation clearly overrides the duty to partake in jihād. Moreover, men wishing to join the campaign had to obtain the permission of their parents.¹³⁴ Respect and deference to one’s parents “has priority over jihād,”¹³⁵ because “if jihād is in principle an optional duty, then someone else can substitute for him who could not [secure the permission of parents].”¹³⁶ In other words, as “private” persons, parents could veto the right of jihād (and thus any governmental order) to claim their son. Not only that, but if the parents change their mind after granting permission, their son must still withdraw and return home if preparations for battle have not started.¹³⁷ Furthermore,

fighting the non-Muslim enemy was not ordained in the Sharīʿa for its own sake, because in essence fighting is a cause of harm and damage. Rather, it was decreed for another reason, namely, rendering victorious the Word of God and rebuffing the aggression of the enemy. Thus if fighting is accomplished through the participation of some Muslims, then the others are absolved of this duty. . . . For if jihād had been imposed as an incumbent duty upon every Muslim individual, then both religion and worldly affairs will come to utter ruin. This has been the practice since the days of the Prophet and until these days of ours.¹³⁸

Moreover, if Muslims were to fight every power who transgressed against them and every enemy who has remitted Muslims into bondage, then “we [Muslims] will be preoccupied by fighting all of our lives, and will inevitably neglect our worldly affairs. This is why there is consensus among Muslims throughout [the centuries] that such [an endeavor] will not be pursued . . . and consensus is the most evincive of legal proofs.”¹³⁹

Two final points must be made: First, jihād is not a state law but a morally anchored set of prescriptions whose violation is a matter of conscience, and second, even when jihād is deemed obligatory on every adult male Muslim, the obligation remains a moral one, and thus there is no prescribed earthly punishment in the Sharīʿa for refusal to join the war effort, except for the threat of losing credit in the Hereafter.¹⁴⁰ This is a far cry from the modern state’s punitive measures intended for those who refuse conscription, not to mention deserters. In this latter context, it is instructive that leaving the jihād battle (so-called deserting) was legally permitted if certain conditions obtained, including tiredness, the collapse or death of the cavalryman’s horse, or even in cases where the enemy forces outnumber Muslim fighters.¹⁴¹

3. The Moral Dimension: A Concluding Remark

We cannot sufficiently emphasize the importance of the conclusion, to be further elaborated in the next chapter, that it is the modern state that fashions the identity of that historically unique subject, the citizen; Islamic governance, significantly defined by Sharʿī values, fashions a drastically different identity of its subject, one that does not know the political and therefore the political meaning of sacrifice. Sacrifice in paradigmatic Islamic governance was a moral duty imposed exclusively in the context of self-defense and unfettered by stern conscription laws. It was largely a matter of individual choice. When it was undertaken, it did not derive its meaning from a love for the nation or even for the Community as the site of the political but rather from a moral meaning whose anchors were the moral subjectivity of the individual, the atomic unit that makes up the aggregate of the Community as the central domain of the moral.¹⁴² The Sharīʿa, the paradigm of Islamic “legislative” power, did not possess a political will, at least nothing comparable to the will of the state. The Sharīʿa was about society and far less about politics; it was about the moral social character, not political society, one of many secondary concerns. The modern project represents and constitutes, in the living realities of the contemporary Muslim world, a profound transformation from the age of legal morality to the age of the political. In modernity, politics and the political are everywhere, and they rule the day.¹⁴³

Whereas the discursive world of Islam and its forms of knowledge were pervaded by moral prescriptions and by Sharīʿa-prescribed ethical behavior, it has now become permeated by positivism, politics, and the political, by concepts of citizenship and political sacrifice. While the law of the modern state forces the citizen to “give his energy and life for the state,” he “could not be under any moral obligation to do so. The glory of a high ethical ideal, that has always transfigured the death for the fatherland, then would fade. Why should the individual sacrifice himself for the welfare of others who are equal to him?”¹⁴⁴ The answer to this question cannot yield any sense without seeing the citizen as a subjectivity fashioned in the service of a state that was not only made of war¹⁴⁵ but also one that perpetuates it, in the process marshalling the citizen to offer the most precious sacrifice. The controlling interrogative syllogism here is: If the state can only recognize “facts” and the Is, constituted as it is by a world largely devoid of value and moral impulse, and if the state draws, through the law, on its citizens’ lives and energy to fight for, and in, this valueless mundus, then does it mean that the citizen sacrifices himself for the sake of a state that knows no value, no moral imperative, and no good beyond its own? This is a question that contemporary Muslims must face, squarely and without mitigation, although Muslims—as we will continue to see—do not face this question alone.