Wael B. Hallaq and the Question of Modern Nation-State in Islamic Legal Tradition: Empire of Law in Pre-Modern and Modern Muslim Legal Cultures

Studies of ruptures sometimes create new ruptures, not least because they are, in the language of Thomas Kuhn’s influential work on the structure of scientific revolutions (The Structure of Scientific Revolutions, 1962), susceptible of creating a paradigm shift in an academic context. As a rupture caused by a study of a historical rupture, such a paradigm shift is no less and no more than a change in the basic assumptions about the studied phenomenon. Wael B. Hallaq’s work on the modern-nation state, much like his other influential theses, bears all the hallmarks of a potential view- shifter: it is Saidian or, perhaps, post-Saidian in its critique of European modernity and Orientalism, especially of their intrinsic epistemic violence against Muslim pre-colonial legality; it produces a coherent if somewhat overstated narrative about classical Islamic law and its jurists; and it forcefully denies any possibility of a revival of the pre-modern sharī‘a in contemporary Muslim societies, given the omnipresent onslaught of modernity on every aspect of Muslim legal and social life. Undoubtedly, then, this thesis has and will continue to cause ruptures, to intrigue and irritate; but I doubt it is a paradigm shift. In this address, I try to explain why I think so by means of several very short interventions, which follow three of Hallaq’s foundational assumptions. The first is Hallaq’s insistence on the demise of the sharī‘a as ‘a tenable reality’, occurring in his narrative at the turn of the twentieth century CE. The second of Hallaq’s fundamental assumptions is that the ‘traditional rulers’, as he calls them, considered themselves subjects to the Islamic law and ‘left the judicial and legislative functions and authority’ to the ‘ulāmā’, while ‘the modern state reversed this principle’. The third, and last, is Hallaq’s grievance about the nation-state’s model of codification of Islamic law, which he describes elsewhere as forceful ‘entextation’ of the selective fiqh qua the sharī‘a, ‘a means by which a conscious restriction is placed on the interpretative freedoms of jurists, judges and lawyers’