HENRY Kissinger concedes in his recent work, World Order, that a primary weakness of the Westphalian system is its value-neutrality, conscious moral agnosticism in favour of procedural claims on territorial integrity, sovereignty of states and non-interference in domestic affairs among states. Consequently, it gives no sense of direction and is incapable of generating legitimacy.
The idea that society could be changed, or indeed, a norm could qualify as “law” merely by passing a piece of legislation is a novel concept. This is especially the case with constitutions, for indeed, it would be ironic that the highest and most basic law of the land could be described as such merely by declaring itself to be so.
In post-conflict reconstruction efforts, nation-building is just as important as state-building. Yet, while state-building can be worked out, nation-building is much more difficult.
Indeed, nation-building is conceived of as “an art, not a science”, requiring a vast knowledge of local circumstances, substantial native input and the creation of largely symbolic, non-tangible things, like national languages.
These are crucial, not only to give legitimacy to the state, but also to provide the people with a sense of identity, direction and purpose.
This effort, however, is not small and, therefore, requires vast resources, especially in settings where civil society is weak, as might be the case in post-conflict zones. This typically requires a strong and active role by the state. The state’s role is also important to prevent disenfranchised groups from lapsing into extremism.
In this regard, Tunisian politician Rachid Ghannouchi has attributed the relative success of Tunisia (certainly compared with other post-Arab Spring states, like Egypt and Libya) to the fact that Tunisia was not impeded by sectarian groups given its relatively homogenous society.
In modern constitutional democracies, the law-morality dialectic is, thus, used to frame the debate on the relationship between religion and law.
Yet, several problems arise due to this framework. Rather than embracing a distinction between law and morality, a more useful categorisation would be between various functions and aspects of syariah.
Such classification must nevertheless strive to maintain the organic inter-dependency between various aspects of Islam, including theology and spirituality.
There is no one Arabic word that could adequately capture the word “politics”. This word itself, from the Greek word “polis”, designates city, and thus politics is that which pertains to city life — which in the Muslim historical context is designated by the term “madinah”.
This was seen as inescapable because man is by nature considered to be social and political animal, not only because of his proneness to corruption (which calls for the need for law and regulation), but also because of his dependency on others. Man as a “political animal”, following the Greeks, is construed as “al-hayawan al-madani”, literally the “city animal” or urban creature.
The term for governance of political society is “siyasah”. Etymologically, it is derived from the act of grooming and training a horse. Its earliest use in Arabic is “siyasat al-khayl”, grooming and managing horses, the “sa’is” being the groom who cares for and looks after horses.
Later, “siyasah” evolved to denote at least four things: statecraft, punishment, governance, and politics.
The earliest use in Islamic sources of its root S-W-S in the sense of politics and leadership of the community is in the hadith where Prophet Muhammad (peace be upon him) stated: “The Israelites used to be led by prophets kanat banu isra’il tasusuhum al-anbiya; whenever a prophet died, another succeeded him. After me, no prophet [shall succeed me], but there will be many deputies (khulafa’)”.
In essence, “siyasah” is about governance of society to ensure the wellbeing and welfare of people, and ultimate happiness (both in this life and the next).
In its meaning of both politics and statecraft, there existed three main approaches in classical Islam: that of the jurists; that of the philosophers; and, that of statesmen, with the genre of “counsel” or “advice to rulers”, which drew from both the Hellenic and Iranian traditions.
A historical survey of the juristic treatment to “siyasah” suggests many pictures.
In the earlier period, the Abbasid Persian secretary Ibn al-Muqaffa’ (d. 756) penned his Risalah fi’l-ṢSahabah (Epistle on Royal Companions), in which he proposed that the caliph be the final authority to interpret the syariah. Even the ‘‘ulama”, should also be functionaries of the caliph and be incorporated into the state apparatus.
But his proposal fell on deaf ears. The Abbasid caliph al-Mansur did later ask the leading jurist, Malik ibn Anas, who authored the early legal compendium Muwatta, if this work could be imposed as the applied law of the land — a proposal which Imam Malik himself declined on account that the companions of the Prophet had allowed differences of opinion and he preferred not to be the only voice.
Tengku Ahmad Hazri is a Research Fellow at IAIS Malaysia, with interests in law (especially constitutional law and theory), jurisprudence and contemporary Islamic thought and civilization. He can be reached via ahmhazri@iais.org.my