6. Entering into a Dialogue: From Theory to Practice

On the Islamic side, it is worth remembering the famous traveler Ibn Jubayr (1145–1217), who described the court of Sicily of Roger II, as well as its usages and customs. Also, Ibn Khaldūn, in his already mentioned historical work Muqaddimah, gave a description of European kingdoms and realms. On the European side, it is interesting to recall the Cribratio Alkorani of the aforementioned cardinal Nicholas of Cusa, which represents one of the most important attempts to investigate the Islamic holy text from a Catholic and Western point of view.

In this chapter, I will discuss only the encounter between the Islamic world and the Western nations, thus without mentioning the Islamic conquest of the Middle East, of some parts of Asia, and of Norther Africa, where the process of Islamization, even in juridical terms, was clearly more penetrative and long-lasting.

An example is represented by the Ottoman millet system, a historical conception granting a certain degree of autonomy to non-Muslim communities in Muslim territories. On this, see Fatih Öztürk, Ottoman and Turkish Law, iUniverse LLC, Bloomington 2014, pp. 1–22. As for the influence of the millet in the post-Ottoman context, Castellino and Kavanaugh describe it as “possibly the first manifestation of what could be deemed ‘minority rights law’” (Joshua Castellino, Kathleen A. Kavanaugh, Minority Rights in the Middle East, Oxford University Press, Oxford 2013, p. 268).

Weiss describes this passage with a certain efficacy: “In past days, Islamic law – the law articulated in volumes of fiqh and in collections of fatwās – enjoyed a pride of place in Muslim societies that in the modern world it no longer has. By ‘past days’ I mean the days before the Muslim world came under the political and cultural ascendancy of the West, days preceding the onset of a modernity fashioned by the West” (Bernard G. Weiss, The Spirit of Islamic Law, University of Georgia Press, Athens-London 1998, p. 186).

After Napoleon invaded Egypt, the Egyptian Muslim community started to feel the European superiority in terms of technological power and political administration, and as a reaction many Muslim intellectuals supported the idea of Westernization intended as modernization. The resulting intellectual movement is known as al-Nahḍah, invoking a “renaissance” for the Muslim world. Cf. Roger M. Savory, “The religious environment in the Middle East”, in Business and the Middle East. Threats and Prospects, eds. Robert A. Kilmarx, Yonah Alexander, Pergamon Press, New York-Oxford-Toronto-Sydney-Paris-Frankfurt 1982, p. 17.

See the dedicated notes in Chap. 3, paragraph 4.

This is not true only for the Ottoman empire but represents a constant in similar cases, which can take place all around the world. For instance, it is worth remembering the case of Tokugawa Japan, which after the visit of the “black ships” of commodore Matthew Perry in 1853 entered a period of decline that eventually led to the fall of the military bakufu. The new Meiji government started a never-seen before process of modernization and innovation whose outcome was the adoption of a Prussian-like constitutional system.

European colonialism resulted in a process of Westernization of Islamic societies, which necessarily extended to the juridical aspect. On the idea of Westernization in the Islamic world, see Behrooz Ghamari-Tabrizi, “Westernization” (voice), in The Princeton Encyclopedia of Islamic Political Thought, eds. Gerhard Bowering et al., Princeton University Press, Woodstock 2013, pp. 594–595. For a critical discussion on the same concept, see Ibrahim M. Abu-Rabi‘, Intellectual Origins of Islamic Resurgence in the Modern Arab World, State University of New York Press, Albany 1996, pp. 12–26.

Hallaq analyzes this possibility, concluding that sharīʿa cannot be actually restored as in the pre-colonial era (Wael B. Hallaq, “Can Shariʿa Be Restored?”, in Islamic Law and the Challenges of Modernity, eds. Yvonne Yazbeck Haddad, Barbara Freyer Stowasser, AltaMira Press, Walnut Creek 2004, pp. 21–53). The restoration of sharīʿa in its allegedly purest and uncorrupted form, rejecting Western and non-Islamic legal constructs, is however fostered by fundamentalist and radical Muslim groups and organizations, such as ISIS, as it will be mentioned in the course of this chapter.

As already mentioned, the imputability of the vision of sharīʿa to the Western conception of law is not to be taken for granted as a universal assumption but represents the outcome of a historically contextualized superimposition of Western categories and Islamic juridical phenomena. The notion of an “Islamic law” is therefore relatively recent and constitutes an evidence of this process of progressive Westernization of the Islamic legal order. As Baamir observes, the “concept of Islamic law was not in use at the time of classical Muslim scholars; it started to develop as a reaction to the Western influence on Muslim scholars and philosophers, especially after the French occupation of Egypt” (Abdulrahman Yahya Baamir [2010], Sharīʿa Law in Commercial and Banking Arbitration. Law and Practice in Saudi Arabia, Routledge, London-New York 2016, p. 6).

With regard to this, Hallaq speaks about a crisis taking place in modern Islam, with a dislocation on the perception on legal authority: the State-established manmade authority as imported by the Western world, and the traditional sharīʿa-based idea of normativity remained as it survived the various processes of colonization and decolonization. Cf. Wael B. Hallaq, “Juristic Authority vs. State Power: the Legal Crises of Modern Islam”, in Journal of Law and Religion, vol. XIX, n. 2, 2003–2004, pp. 243–244.

As it has been observed, “Throughout this long and eventful period of time, the processes of legal modernization in the Arab world have been caught up in a spiraling dynamic of largely contradictory political and ideological impulses that have ranged from partial or wholesale adoption of Western codes of law to mass-based efforts in support of renewed Islamification of laws and legal institutions and that have variously legitimized their activities in the name of ‘modernity’ and ‘progress’, ‘morality’ and ‘authenticity’, or a mixture thereof” (Yvonne Yazbeck Haddad, Barbara Freyer Stowasser, “Introduction” to Islamic Law and the Challenges of Modernity, cit., p. 2).

“As basic philosophical categories, time and space are particularly suitable as a framework for a general cultural history, because they are comprehensive, universal and essential. […] All people, everywhere, in all ages, have a distinctive experience of time and space and, however unconscious, some conception of it. It is possible to interpret how class structures, modes of production, patterns of diplomacy, or means of waging war were manifested historically in terms of changing experiences of time and space”. Stephen Kern [1983], The Culture of Time and Space, 1880-1918, Harvard University Press, Cambridge-London 2003, pp. 2–4.

Ibid., p. 24.

Cf. Mariana Valverde, ““Time Thickens, Takes on Flesh”: Spatiotemporal Dynamics in Law”, in The Expanding Spaces of Law. A Timely Legal Geography, eds. Irus Braverman, Nicholas Blomley, David Delaney, Alexandre Kedar, Stanford University Press, Stanford 2014, p. 61; Brent D. Slife, Time and Psychological Explanation, State University of New York Press, Albany 1993, pp. 14–16. This general assumption does not prevent, however, some Western thinkers, such as Niccolò Machiavelli, from developing a peculiar vision of time, neither linear nor circular, but grounded in the idea of catching the occasion (cfr. Giovanni Fiaschi, “La differenza di Machiavelli. Realtà e prassi politica”, in La filosofia politica di Machiavelli, eds. Giulio M. Chiodi, Roberto Gatti, Franco Angeli, Milan 2015, p. 25), with potential influences on the present time.

This point is made particularly clear by Grotius, according to whom “for the Nature of a human Law is such, that it depends upon the Will of the Legislator, not only in its Institution, but also in its Duration. But the Law-Maker ought not to take away the Law, without a reasonable Cause for it, which if he does, he transgresses the Rules of political Justice. But as he can take away the Whole Law, so he may suspend the Obligation of any Part of it, as to this or that Person, or this or that particular Fact, the same Law in all other Respects remaining in Force” (Grotius, De jure belli ac pacis libri tres, II, 20, XXIV; English excerpt from The Rights of War and Peace, trans. Jean Barbeyrac, ed. Richard Tuck, Liberty Fund, Indianapolis 2005, p. 999).

Qaraḍāwī suggests that sharīʿa can easily be applied in every place and in every time due to its adaptability and speaks of “universal and timeless relevance” of this peculiar idea of normativity. Cf. Yūsuf Qaraḍāwī, Islamic Law in the Modern World, Wamyh House International for Printing, Publishing and Distribution, Riyadh 2000, p. 63.

If a comparison between Islam and the West must be made, it should be the one between fiqh, as deductive activity investigating a preexisting reality, and the judicial function of common law tribunals according to the declaratory theory, “which posits that judges do not make law but rather declare what it always has been” (Ben Juratowitch, Retroactivity and the Common Law, Hart Publishing, Oxford-Portland 2008, p. 1). Both systems witness the prevalence of a deductive and substantially interpretative reasoning which points at a reality external to it, whose premises have already been laid. However, the difference relies in the fact that fiqh refers to sharīʿa, which is an eternal and immutable reality, while the common law judicial reasoning refers to positive law, which is static as far as the lawmaker does not change it.

The anecdote related by Fikentscher regarding the relationship between sharīʿa and time is particularly interesting. In the late 1970s, colonel Muʿammar al-Qadhdhāfī of Libya was interviewed by a representative of Amnesty International, who “gave him a list of persons in jail having been arrested without due process of law, and consequently kept in jail without any basis in legality, whether under the ‘existing’ shari’a or modern law. Colonel Gaddafi answered that this would pose no problem. He would give order right away to enact statutes which declared unlawful the acts those persons in jail had done. The representative of Amnesty International tried to explain the concept of expostfacto law, which under any modern legal system is regarded as a violation of the rule of law. To this Colonel Gaddafi answered that Libya does not live under modern Western law, but under the shari’a, and since the shari’a is forever valid, retroactive statutory interpretations of the shari’a are a matter of logic” (Wolfgang Fikentscher [1995], Modes of Thought: A Study in the Anthropology of Law and Religion, Mohor Siebeck, Tübingen 2004, p. 423).

In addition to the example already mentioned in the previous chapter (Gamil Muhammed Hussein, “Basic Guarantees in the Islamic Criminal Justice System”, in Criminal Justice in Islam. Judicial Procedure in the Sharīʿa, eds. Muhammad Abdel Haleem, Omar Sherif, Kate Daniels, I.B. Tauris, London-New York 2003, p. 45), see, for such a comparison whose methodological approach is in my opinion not sharable, M. Cherif Bassiouni, The Sharīʿa and Islamic Criminal Justice in Time of War and Peace, Cambridge University Press, Cambridge 2014, pp. 126 ff. Some modern scholars highlight the traces of a conception of non-retroactivity in Qurʼān and sunnah, but even in this case the terms of the question are not comparable, due to the different theorization of structural elements such as time, normativity, and legal legitimacy.

“Sharīʿa embodies the sublime principles of the faith that transcend time and place. Fiqh, in contrast, is the imperfect effort of humans to apply these broad principles to specific conditions. It is a product of incomplete human understanding of the divine text, as well as flawed human judgement”. Bruce K. Rutherford, Egypt after Mubarak. Liberalism, Islam, and Democracy in the Arab World, Princeton University press, Princeton-Woodstock 2008, p. 104.

According to the authors, “it is necessary to clarify that ‘law’, at least in the Western understanding, means norms of general application which are binding and enforceable. They have to be distinguished from other norms, such as moral or religious norms. This is often the first misunderstanding, when ‘Sharia’ is translated with ‘Islamic law’. Not all norms in the Sharia are meant to be binding in a legal sense and be enforceable by state authorities. Rather the Sharia represents an all-encompassing normative system addressed to the believers in Islam. As such it also includes moral and religious norms. By contrast, in the Western understanding, moral and religious may serve as sources of inspiration or politically influence the ‘law’ of the state, but they differ from the notion of law” (Hossein Esmaeili, Irmgard Marboe, Javaid Rehman, The Rule of Law, Freedom of Expression and Islamic Law, Hart Publishing, Oxford-Portland 2017, p. 39). The ideas of enforceability and bindingness are analyzed by Rohe as well, in the author’s attempt to correctly highlight the biases implied in equating sharīʿa and Western law (see Mathias Rohe, Islamic Law in Past and Present, trans. Gwendolin Goldbloom, Brill, Leiden-Boston 2015, pp. 10 ff.).

The fundamental text about the Systemtheorie is clearly Niklas Luhmann [1984], “Social Systems”, trans John Bednarz jr., Dirk Baecker, eds. Timothy Lenoir, Hans Ulrich Gumbrecht, Stanford University Press, Stanford 1995. According to Luhmann, these systems “are oriented by their environment not just occasionally and adaptively, but structurally, and they cannot exist without an environment. They constitute and maintain themselves by creating and maintaining a difference from their environment, and they use their boundaries to regulate this difference” (ibid., pp. 16–17). The boundaries, that is to say the actual extension of the system, represent a fundamental character of the system itself. With regard to law, I refer to the conceptual boundaries defining the different domains of “law” and “sharīʿa” like Luhmann refers to the boundaries of a given system. A further point of particular interest relies in the self-reproducing function characterizing the systems, which Luhmann addresses to with the term autopoiesis. According to the author, a system “can operate only with structures that it has built itself. It cannot import structures. […] The system generates itself. Not only does it produce its own structures, like certain computers that are able to develop programs for themselves, but it is also autonomous at the level of operations. It cannot import any operations from its environment” (Niklas Luhmann [2002], Introduction to Systems Theory, trans. Peter Gilgen, ed. Dirk Baecker, Polity Press, Cambridge-Malden 2013, pp. 73–74, 77). From this perspective, the emergence of a given system cannot be an artificial act of creation, but rather the spontaneous outcome of a gradual process of accrual. This point is particularly relevant for the present analysis insofar it suggests that Western law, considered as system articulated in sub-systems, functions on the basis of categories and structures that are not to be considered neutral but that on the contrary represent the precise result of the autopoietic power of the system of producing its own and unique structures of functioning. For a specific and detailed analysis of law as a social system, see again Niklas Luhmann [1993], Law as a Social System, trans. Klaus A. Ziegert, eds. Fatima Kastner, Richard Nobles, David Schiff, Rosamund Ziegert, Oxford University Press, Oxford 2004, pp. 53 ff.

For the interactions between sharīʿa and Western law during the colonial period, see Léon Buskens, “Sharia and the Colonial State”, in The Ashgate Research Companion to Islamic Law, eds. Rudolph Peters, Peri Bearman, Ashgate, Farnham-Burlington 2014, pp. 209–222. Regarding this period, Buskens speaks of “legal pluralism”, in that colonial law was shaped as to incorporate parts of sharīʿa-derived provisions, mainly in family law matters. As previously stated, the colonial period did not simply repel the traditional Islamic legal order but implanted a new one on the same ground. In my opinion, the non-coincidence of Western and Islamic normative spaces from a conceptual point of view was decisive in order to determine the survival of sharīʿa, or at least of traces of it, in the framework of the successive and posterior legal systems.

I already dealt with this issue while discussing the dichotomy sharīʿa-qānūn in Chap. 3, par. 3. While qānūn could be considered as part of a legal system from a Western perspective, it is necessary to remember here that it cannot be regarded as part of the Islamic legal order but a functional method of regulating political matters. Therefore, it can be said that fields such as the ones abovementioned are to be considered as conceptually alien to the normative space of Islam.

This terminology is used by Crone and Hinds in their already mentioned text about the figure of the caliph (Patricia Crone, Martin Hinds [1986], God’s Caliph. Religious Authority in the First Centuries of Islam, Cambridge University Press, Cambridge 2003, pp. 43–57). While the analysis of the two authors appears to be properly detailed and historically contextualized, it would need a clarification as for this point, furtherly taking into account the different extent of the domain of law and the conceptual boundaries of its Islamic counterpart. In an Islamic context, speaking about caliphal law would be inappropriate, while it would make sense only with a theoretical premise: what is intended in the West by “law” does not coincide with the normative field gradually shaped by the Muslim societies. Therefore, it would be necessary to point out that the so-called caliphal law would be considered as law only in a Western context, that is to say extrapolating it from its original cultural framework. It is however to be noted that this process of definition of an Islamic legal space, in which caliphal rule was not contemplated as a source (or root) of law, took a certain amount of time to be properly defined and systematized. Gradually, sharīʿa and fiqh came to form part of a “law of the jurists” or “law of the scholars”, excluding the political rulers as active parts of the legal system. In this sense, see Sami Zubaida, Law and Power in the Islamic World, I.B. Tauris, New York 2003, p. 78; Wael B. Hallaq, The Origins and Evolution of Islamic Law, Cambridge University Press, Cambridge 2005, p. 68.

In my opinion, this last point is particularly interesting. In the Western world, the Roman concept of jus is intended as a comprehensive idea of legal order, while lex represents a particular category inherent to the comprehension of a determined normative act. In this way, the conceptually broader idea of jus comprehends the particular idea of lex, which alone is not exhaustive to understand the juridical phenomenon. On the contrary, the Muslim legal tradition does not follow this categorization, and a phenomenon like the ductile qānūn can be in some ways similar to lex but excluded from what in Islam is perceived as the overall domain of jus.

Here I refer to two different cases, as for the survival of sharīʿa. On the one hand, sharīʿa continues to be followed independently of the new colonial rule, as a common practice and in spite of the new legal course. As a self-sufficient concept and given the deep differences with Western law in terms of theorization and conceptual extension, it cannot be simply abrogated by a Western-derived positive law. On the other hand, the colonial legal system incorporates part of sharīʿa-based provisions in its mechanisms of functioning. This model, regardless of the substantive content of positive laws, gives origin to a legislation that is fundamentally Western in nature, however with an official role given to sharīʿa. This is actually what happens in some contemporary constitutional system, as it will be explained in this chapter. In this context, it is significant to understand the permeability of the traditional Islamic legal conceptions to the new colonial rule, in terms of resistance to change and at the same time capability of adaptation.

According to the Aquinas “dicitur enim lex a ligando, quia obligat ad agendum” (Thomas Aquinas, Summa Theologiae, I, II, q. 90, art. 1). A second etymology, according to St. Augustine and St. Isidore of Seville, as mentioned by saint Thomas as well, links lex to legere, emphasizing its dimension of publicity (cf. Jean-Robert Armogathe, “Deus legislator”, in Natural Law and Laws of Nature in Early Modern Europe. Jurisprudence, Theology, Moral and Natural Philosophy, eds. Lorraine Daston, Michael Stolleis, Ashgate, Farnham-Burlington 1988, pp. 276–277; Anton-Hermann Chroust [1973], “The Fundamental Ideas of St. Augustine’s Philosophy of Law”, in Augustine and Modern Law, eds. Richard O. Brooks, James Bernard Murphy, Routledge, London-New York 2016, p. 173), in that it binds the consociates to its public provisions. As evident, the first etymology appears to be more relevant for the present analysis.

It is interesting to notice that in the case of ob-ligare, the etymology suggests not just a binding act but a binding act involved in a mutual relationship of rights and duties. Cf. Pierpaolo Donati, Margaret S. Archer, The Relational Subject, Cambridge University Press, Cambridge 2015, p. 47.

Kelsen, for instance, links the dimension of bindingness to the validity of law and describes law as “coercive order”. According to Kelsen, the first characteristic “common to all social orders designated by the word ‘law’ is that they are orders of human behavior. The second characteristic is that they are coercive orders” (Hans Kelsen [1960], Pure Theory of Law, trans. Max Knight, The Lawbook Exchange, Clark 2008, p. 33). As van Roermund concisely states, following Kelsen’s Pure Theory, bindingness “relates to law qua authoritative practice geared towards ending or precluding social conflict” (Bert van Roermund, Legal Thought and Philosophy. What Legal Scholarship is About, Edward Elgar, Cheltenham-Northampton 2013, p. 235). While the aforementioned literature considers law as a coercive order in a universal perspective, as evident this view in particularly fit to describe Western law, given that other kinds of legal orders adopt different categorial schemes, as explained in my introduction. Notwithstanding a certain claim for universality, these positions are relevant in order to understand the unavoidable link between law and bindingness in the Western legal thought.

To these two groups it is possible to add a third category, the one of tolerances (pati). However, at a deeper analysis, this latter category can be easily reduced to the group of non facere, as it imposes to the subject not to rebel to a certain behavior carried out by someone else. About this tripartition, see briefly Leon Petrazycki [1905–1907], Law and Morality, Routledge, London-New York 2017, p. 162. An example of the false dichotomy between non facere and pati is related to servitudes, which are sometimes labelled as non facere obligations, sometimes as pati, and sometimes as both.

Regarding law as coercion but not implying necessarily a sanction, it is worth remembering again Kelsen’s position: “The coercion that is implied in the motivation is a psychic coercion, which is a possible effect of the idea an individual has of the law, and which takes place within this individual. And this psychic coercion must not be confused with the prescription of the coercive act, which takes place within the legal order” (Kelsen, Pure Theory of Law, cit., p. 35).

The reference is again to Luhmann, according to whom “law achieves this function by coding events in its environment using a binary code that is unique to itself: legal/illegal”, and “normative closure is the context for ongoing self-observations by the system within the scheme of lawful/unlawful” (Luhmann, Law as a Social System, cit., pp. 9, 109). Borrowing Luhmann’s terminology, King and Thornill explain that “the recognition of a communication as a specifically legal communication depends upon the legal system’s deployment of the lawful/unlawful code in the interpretation of this environment” (Michael King, Chris Thornhill, Niklas Luhmann’s Theory of Politics and Law, Palgrave Macmillan, New York-Basingstoke 2003, p. 56). As it has been observed on King’s writings, “in Western legal systems, law depends for its ontology on a binary code of lawful/unlawful, legal/illegal, and the like. To carry this a step further, law is a prime way of classifying everyday acts with exclusivist taxonomies …” (Don Handelman, “Bureaucratic Logic, Bureaucratic Aesthetics: The Open Event of Holocaust Martyrs and Heroes Remembrance Day in Israel”, in Aesthetics in Performance. Formations of Symbolic Construction and Experience, eds. Angela Hobart, Bruce Kapferer, Berghahn Books, New York-Oxford 2005, p. 212).

Cf. Roberto Bin, “Soft law, no law”, in Soft law e hard law nelle società postmoderne, ed. Alessandro Somma, Giappichelli, Turin 2009, pp. 31–40. For an analysis concerning the problematic of soft law within a legal system, see Bart van Klink, Oliver W. Lembcke, “A Fuller Understanding of Legal Validity and Soft Law”, in Legal Validity and Soft Law, eds. Pauline Westerman, Jaap Hage, Stephan Kirste, Anne Ruth Mackor, Springer, Berlin-Heidelberg 2018, pp. 145–164.

According to Ferrarese, “perhaps nothing makes the distance from the concept of ‘norm’ as visible as the existence of a wide typology of so-called soft law rules, which renounce to the binding force, and try to find application by focusing on other motivations different from the obedience that one owes to a ‘command’. This particularly ‘mild’ form of legal commitments therefore renounces precisely to that sanctioning message that was at the heart of the ‘norm’” (Maria Rosaria Ferrarese, “Globalizzazione giuridica” (voice), in Enciclopedia del diritto. Annali dal 2007, vol. IV, Giuffrè, Milan 2007, pp. 564).

These five categories were systematized about two centuries after Muḥammad’s death, as Schacht observes (Joseph Schacht [1950], The Origins of Muhammadan Jurisprudence, Clarendon Press, Oxford 1959, p. 133), and since then have become a fundamental part of the Islamic legal discourse. A major role in the systematization of the five categories has undoubtedly been played by al-Ghazālī. For al-Ghazālī’s position about their importance, see Harvey J. Sindima, Major Issues in Islam. The Challenges Within and Without, Hamilton Books, Lanham-Boulder-New York-Toronto-Plymouth 2018, p. 398. To be noted that the Ḥanafī school adds two more categories, conceptually dividing wājib from fard, and adding makrūh taḥrīman as a category distinct from makrūh and ḥarām. However, being this categorization typical of just one legal school, in my work I will refer to the classic “five decisions”. About the Ḥanafīte categorization, see Ahmad Zaki Hammad, “Ghazālī’s Juristic Treatment of the Sharīah Rules in al-Mustasfā”, in American Journal of Islamic Social Sciences, vol. IV. n. 2, 1987, pp. 173.

About the five decisions in general, see Seymour Gonne Vesey-Fitzgerald, “Nature and Sources of the Sharīʿa”, in Law in the Middle East, vol. I, Origin and Development of Islamic Law, eds. Majid Khadduri, Herbert J. Liebesny, The Lawbook Exchange, Clark 2009, pp. 98–100; Aaron W. Hughes, Muslim Identities. An Introduction to Islam, Columbia University Press, New York 2013, p. 137; Frederick Mathewson Denny [1994], An Introduction to Islam, Routledge, London-New York 2016, pp. 194 ff.

The dichotomy that sometimes recurs in the Islamic discourse between halal, as licit, and ḥarām, as illicit, has progressively been graduated along the lines expressed in the aforementioned five categories, with all their grades of liceity.

As well known, the five pillars are the profession of faith (shahāda), prayer (salah), almsgiving and charity (zakāh), fasting (sawm), and the pilgrimage to Mecca (ḥajj). As mentioned, the pillars are to be considered as wājib.

I do not adopt the metaphor of the duel by chance. Until rather recent times, the figure of the duel was present in almost every civilization, and its origins date back to ancestral ages. However, in the Western world the duel enriches itself of a juridical dimension, constitutive and connatural to its aim of pursuing a form of (private) justice. From the Western point of view, it is the law what distinguishes a duel from a mere fight and consequently justice from violence. It is the procedural element of law, with its rituality and its rules of conducts, that ensures the necessary neutrality and detachment that can inscribe the intrinsic violence of the duel into the circuit of the administration of justice. In this sense, the duel “was supported by binding rules that steered, controlled, and limited the use of force. Without these rules a duel was no longer a duel, a fact which state legislation also took into account by only regarding those fights carried out in accordance with the regulations as legally privileged duels. Fights without strict rules fell under the regular laws for physical injury, manslaughter, or murder” (Ute Frevert, “The Taming of the Noble Ruffian: Male Violence and Dueling in Early Modern and Modern Germany”, in Men and Violence. Gender, Honor, and Rituals in Modern Europe and America, ed. Pieter Spierenburg, Ohio State University Press, Columbus 1998, p. 49). Once again, the normative dimension of the duel is not to be found only in the legitimation given to it by State law. In the Western perspective the duel, as the claim for direct enforceability following an unjust tort, needs to be structurally ascribed to the juridical phenomenon, notwithstanding its possible being unlawful in regard of a certain legal system. As one of the major theorists of the duel writes, “if the duel Code lies outside of the law, if it is not possible to have other codes than the ones sanctioned by the law, let’s do not hesitate, however, to give this name to the rules imposed by honor, because honor is not something less sacred than the governmental laws” (Comte de Chatauvillard, Essai sur le Duel, Imprimerie d’Edouard Proux et comp., Paris 1836, p. 5). In this excerpt, it is evident that even when the duel appears to be outlawed, the Western though felt the exigency of regulating it, whether referring to customary uses or creating as in this case an ad hoc legal system for the duels. The ancient duel codes, like the mentioned Essai of Chatauvillard or the Codice Cavalleresco by Jacopo Gelli of 1879, represent an iconic example of how the Western thought inextricably linked the duel to a normative dimension, being it recognized or not by State law.

The most famous episode is undoubtedly St. Paul’s case, as related in Acts, XXV, 1.

See ex mult., Danilo Ceccarelli Morolli, A Brief Outline of Roman Law, Gangemi, Rome 2012, pp. 75 ff.

From this point of view, particularly relevant is the phenomenon of the wandering justices, iconic embodiment of a justice which was not based on a territorial dimension but on multiple levels of laws, according to various criteria—religion, race, profession, etc.—and in which every jurisdiction exercised its authority through enforcement of its specific regulations.

As Grossi observes, “the prince is celebrated by the medieval mindset for his capacities as a judge – as the great bringer of justice to his people. […] The power of the prince is, and will be for all the duration of medieval jurisprudence, made up of a complex system of powers amongst which judicial authority is central. This system also includes, secondarily, the authority of ius dicere (‘declaring the law’) – the role of making the law manifest to the prince’s subjects” (Paolo Grossi [2007], A History of European Law, trans. Laurence Hooper, Wiley-Blackwell, Chichester 2010, p. 13).

The habeas corpus was firstly introduced by the Magna Charta of 1215, which I will discuss in par. 4 of this chapter.

The provisions concerning morality are often remitted to the individual conscience and are not always complied with by the use of coerciveness. Cf. Rudolph Peters, Peri Bearman, “The Nature of the Sharia”, introduction to The Ashgate Research Companion to Islamic Law, cit., p. 4. Hallaq argues that the unity of normative and moral aspects in sharīʿa “did not less than equip it with efficient, communally based, socially embedded, bottom-top methods of control that earned it remarkably willing obedience and – as another consequence – made it less coercive than any church or imperial law Europe introduced since the fall of the Roman Empire” (Wael B. Hallaq, “What is Sharīʿa?”, in Yearbook of Islamic and Middle Eastern Law, vol. XII [2005–2006], eds. Eugene Cotran, Martin Lau, Brill, Boston-Leiden 2007, p. 152). Hallaq’s view is particularly interesting in that the author underlines the “bottom-top” methods of enforcement and control which indeed distinguish sharīʿa from Western law, and that qualifies the enforcement of sharīʿa as non-necessarily mediate by a circuit of judges and courts, but as an expression of the community of the believers in following the “straight path”. Moreover, by defining it “less coercive”, Hallaq stresses the idea that sharīʿa is not to be considered always enforceable, highlighting that enforceability be not a structural element in the Islamic legal order.

In this section I do not refer to the modern qāḍī, who sometimes operates in contemporary hybrid Islamic legal systems, whose office is more comparable to that of a Western judge because of later post-colonial influences. Here, I refer to the qāḍī as a classical figure in the administration of justice of the Islamic legal tradition. With regard to this, see Anver M. Emon, “Sharīʿa and the Modern State”, in Islamic Law and International Human Rights Law. Searching for Common Ground?, eds. Anver M. Emon, Mark Ellis, Benjamin Glahn, Oxford University Press, Oxford 2012, pp. 61–62.

Although appointed by the ruler, the judicial authority of the qāḍī does not come from the ruler by whom he is appointed, as the Western judge who is vested with public authority by virtue of his appointment. As distinguished twelfth-century Ḥanafī jurist al-Kāsānī observed, “the qāḍī does not become a qāḍī by virtue of the appointing power of the ruler, nor does he work for him. Rather, he becomes a qāḍī by virtue of the appointing power of the Muslims, for whom he works” (al-Kāsānī, Badā’i’aṣ-ṣanā’i’ fī tartīb aš-šarā’i, vol. XI, cit. in Wael B. Hallaq, The Impossible State. Islam, Politics, and Modernity’s Moral Predicament, Columbia University Press, New York 2013, pp. 188–189, note 131). The qāḍī, therefore, does not follow the conceptual path of legitimation typical of the Western view but on the contrary is here considered as an instrument working for the community of the believers, with a consequent direct participation of the individuals in the administration of justice. On this, cf. Ulrich Rebstock, “A Qāḍī’s Errors”, in Islamic Law and Society, vol. VI, n. 1, 1999, p. 8.

The qāḍī used to follow procedures while judging, but as previously explained the procedures he followed do not constitute the essential element in enforcing law. Moreover, as Hallaq notes, from a procedural point of view “the work of the court appealed to pre-capitalist and non-bureaucratic social constructions of moral integrity that sprang directly from the local site of social practice” (Wael B. Hallaq, An introduction to Islamic Law, Cambridge University Press, Cambridge 2009, p. 164).

About the relationship between qāḍī and jurists, see John L. Esposito, Natana J. DeLong-Bas, Shariah. What Everyone Needs to Know, Oxford University Press, Oxford 2018, pp. 66–69. See also Brinkley Messick, “The Judge and the Mufti”, in The Ashgate Research Companion to Islamic Law, cit., pp. 73–92.

The suggestive definition of “law of the jurists”, or “jurist’s law”, comes from Weiss, The Spirit of Islamic Law, cit., p. 186, and from Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, Oxford 1964, pp. 209–210. Weber, while analyzing sharīʿa, defines it as a jurist’s law as well (Max Weber [1921–1922], Economy and Society. An Outline of Interpretive Sociology, eds. Guenther Roth, Klaus Wittich, University of California Press, Berkeley-Los Angeles-London 1978, pp. 820–821). For an analysis of his position on this subject, see Bryan S. Turner [1974], Max Weber Classic Monographs, vol. III, Weber and Islam, Routledge, New York-London 2006, p. 111.

A clarification about this point is necessary. I do not share the view according to which a constitution necessarily embodies a substantive idea or principle of law, such as the equality in front of the law or the democratic principle. In particular, I do not share the opinion that democracy be in some way structurally inherent to the idea of constitutionalism, because this vision would result in an improper ideologization of a juridical construct, in whose framework democracy represents a possibility albeit not the only one. A constitution is rather to be considered a legal category, whose declinations in specific contexts can greatly vary according to ideological, historical, and cultural contingencies, as the empirical evidence clearly shows. Therefore, when speaking of the non-neutral nature of the idea of constitution, I do not refer to the substantive content that can be attached to a specific charter but to the precise philosophical vision behind its categorial form. As a comprehensive category, a constitution reflects the way in which a State conceives the relationships between its institutions, its people, and its political power. Various definitions of constitution fail, in my opinion, to grasp the idea that a constitution be fundamentally a way of considering this relationship, instead of a set of more or less homogeneous substantive principles. On the contrary, among the various sharable definitions, I recall here the one according to which a constitution “is the politico-legal document of documents to which a state gives a special name or attaches particular qualities in order to distinguish it from all other state documents of a politico-legal nature” (Henc van Maarseveen, Ger van der Tang, Written Constitutions. A Computerized Comparative Study, Oceana Publications-Sijthoff & Nordhoff, Dobbs Ferry-Alphen aan den Rijn 1978, p. 234). Van Maarseveen and van der Tang correctly underline the necessary link between the constitution and the idea of State, two legal-philosophical categories that shared a common path of evolution. This definition helps highlighting the formal (but non-neutral) nature of the idea of constitution. Another definition that is worth remembering is the one according to which a constitution “is the supreme and fundamental law, by which the sovereign constituent power (ultimately, the people, or, in a federation, the constituent States) established the constituted powers (the Parliament, Government and other institutions). A Constitution establishes, rather than merely describes, the rights and duties of the people, the powers and functions of the various institutions of government, and the relationships between them” (W. Elliot Bulmer, A Model Constitution for Scotland. Making Democracy Work in an Independent State, Luath Press, Edinburgh 2011, p. 32). This last definition helps understanding the fact that a constitution shares in part the same philosophical features of Western law. According to these definitions, it is possible to derive from the category of constitution various implications: firstly, the existence of a State vested with sovereign power, the existence of institutions, and the human authorship of law. As I will furtherly explain, these three main implications constitute the points to which I will refer in dealing with the idea of a constitution intended as a legal category.

Although fundamental juridical documents such as the Magna Charta represent an essential shift in considering the relationship between law and power, thus marking the premises for the following evolution of the idea of constitutionalism, they cannot be considered constitutional acts themselves. Properly said constitutionalism is indeed a product of modernity, with a more specific differentiation between private and public spheres, as a consequence of the emergence of the modern State and its monopoly of law. As La Torre argues, the step “from pre-modern to modern constitutionalism is made possible thanks to a deep change in the prevailing political paradigm. ‘Constitution’ or ‘fundamental’ would now be a law only if it dealt with the public, not private, sphere; only if it was directed to shape and regulate expressions and acts of political power” (Massimo La Torre, Constitutionalism and Legal Reasoning. A New Paradigm for the Concept of Law, Springer, Dordrecht 2007, p. 4).

Cf. Gottfried Dietze, Magna Carta and Property, University of Virginia Press, Charlottesville 1965, p. 48. For an in-depth analysis of the influence of the principles of the Magna Charta on English and American constitutionalism, see A. E. Dick Howard, The road from Runnymede. Magna Carta and constitutionalism in America, University of Virginia Press, Charlottesville 1968, especially pp. 203 ff.

The so-called constitution of Medina (commonly known in Arabic as dustūr al-Madīnah or saḥīfat al-Madīnah) of 622 AD cannot be recognized as a proper constitution, in spite of the denomination with which is usually referred to in literature. In fact, and regardless of the completely different historical and philosophical context in which the idea of constitutionalism was born, the document does not present the necessary and structural features of a constitution. Referring to international legal categories, it would be more appropriate to define it a treaty, stipulated in order to grant social and political peace between various religious and ethnic groups. As for the terminology, instead of a constitution it would be more correct to speak about a covenant, in order to avoid conceptual misunderstandings. Cf. Rainer Grote, Tillman J. Röder, “Constitutionalism in Islamic Countries”, introduction to Constitutionalism in Islamic Countries. Between Upheaval and Continuity, eds. Rainer Grote, Tillman J. Röder, Oxford University Press, Oxford 2012, pp. 3–4.

In more recent times, a certain debate arose about the possible constitutionalization of international law, based on a possible and factual constitutionalizing power of non-State actors in a globalized world (cfr. Jan Klabbers, Anne Peters, Geir Ulfstein, The Constitutionalization of International Law, Oxford University Press, Oxford 2009; Jürgen Habermas, “The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World”, trans. Ciaran Cronin, in Constellations, vol XV, n. 4, 2008, pp. 444–455). Although undoubtedly interesting, in my opinion this phenomenon takes the moves from the original idea of constitutionalism but actually evolves following completely different lines at the point of being considered a conceptually different phenomenon. On the main differences between these two ideas, see Christian Walter, “Progress in International Organization: A Constitutionalist Reading”, in Progress in International Law, eds. Russell A. Miller, Rebecca M. Bratspies, Martinus Nijhoff Publishers, Leiden-Boston 2008, pp. 138–142.

Grote and Röder point out that not only the idea of constitutionalism “first came to the Islamic world as an essentially European concept” but also that the constitutional discourse in the Muslim world is based upon “recent attempts to reinterpret the Islamic tradition in light of the requirements of constitutionalism” (Grote, Röder, Constitutionalism in Islamic Countries, cit., p. 3).

In spite of its being in force for only three year, the Tunisian constitution of 1861 represents a relevant juridical experiment, being the first written constitution of the Muslim world. It was enacted in a time in which Tunisia formed a factually independent province of the Ottoman sultanate and aspired to modernize its political structure under European influence. The Western cultural inspiration for the constitution is also proved by the fact that prior to its enactment it was submitted to Napoleon III in Algiers. Regarding the charter, see Nathan J. Brown, Constitutions in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government, State University of New York Press, Albany 2002, pp. 16–20; Hedia Khadhar, “La Révolution française, le Pacte fondamental et la première Constitution tunisienne de 1861”, in Revue des mondes musulmans et de la Méditerranée, ns. 52–53, Les Arabes, les Turcs et la Révolution française, 1989, pp. 132–137.

Regarding the constitutional period of the Ottoman empire from a historical point of view, see Selçuk Akşin Somel, “Constitution/Constitutional Periods” (voice), in Encyclopedia of the Ottoman Empire, eds. Gábor Ágoston, Bruce Masters, Facts on File, New York 2009, pp. 144–145. For an in-depth analysis, see Robert Devereux, The First Ottoman Constitutional Period. A Study of the Midhat Constitution and Parliament, The Johns Hopkins Press, Baltimore 1963; Roderic H. Davison, Reform in the Ottoman Empire, 1856-1876, Princeton University Press, Princeton 1963, pp. 358–408. From a linguistic point of view, consider also Johann Strauss, “A Constitution for a Multilingual Empire: Translation of the Kanun-i Esasi and Other Official Texts into Minority Languages”, in The First Ottoman Experiment in Democracy, eds. Christoph Herzog, Malek Sharif, Ergon Verlag, Würzburg 2016, pp. 21–52.

The term “Islamic constitutionalism” is rather popular in academic writings and is commonly used to address the constitutional corpus of the Muslim world, with its charters, basic laws, and recurrent principles. Quraishi-Lander, with regard to this, defines Islamic constitutionalism as “a sharia-mindful way of thinking about the nature and allocation of power – political, religious, legislative, judicial and so on” (Aisfa Quraishi-Landes, “Legislating Morality and Other Illusions about Islamic Government”, in Locating the Sharīʿa. Legal Fluidity in Theory, History and Practice, ed. Sohaira Z. M. Siddiqui, Brill, Leiden-Boston 2019, p. 178, note 9). Khan and Ramadan conceive Islamic constitutionalism as a modern development of the concept of ijtihād, thus seeing compatibility between constitutionalism and Islam (L. Ali Khan, Hisham M. Ramadan, Contemporary Ijtihad. Limits and Controversies, Edinburgh University Press, Edinburgh 2011, pp. 113–145). I prefer to avoid this terminology that could be misleading. Speaking about an Islamic constitutionalism implicitly suggests that the idea of constitutionalism, as briefly analyzed above, could in some way be properly Islamic, that is to say an expression of the Islamic legal tradition, or at least an outcome of its evolution. Not sharing this view, I prefer speaking about a form of constitutionalism applied to Islamic countries, which gradually developed their own legal principles and, most of all, their own ways of reconciling the Western idea of constitutionalism with their Islamic cultural heritage. In light of this, the terminology used by Grote and Röder for the title of the aforementioned work appears to be particularly appropriate.

As for the Moroccan constitution of 2011, it is the case of the attribution of the caliphal title of amīr al-muʾminīn to the king (art. 41, par. 1), who is however a sovereign of a national State. Again, it is possible to mention the constitutional role of the fatāwā (art. 41, par. 3), which are however deprived of their normative role. Substantive Islamic content transposed into national legislation can be mainly found in the mudawwana, the Moroccan family code.

In the constitutional history of Egypt, since 1971 the sharīʿa-clause has always been at art. 2 and underwent various evolution. Among the extensive literature existing on this issue, see Cornelis Hulsman (ed.) The Sharia as the Main Source of Legislation? The Egyptian Debate on Article II of the Egyptian Constitution, Tectum Verlag, Marburg 2012. On the hermeneutical aspects involving the Supreme Constitutional Court, which acquires here a preeminent importance, see Nathan J. Brown, Adel Omar Sherif, “Inscribing the Islamic Shari’a in Arab Constitutional Law”, in Islamic Law and the Challenges of Modernity, cit., p. 67–75. For the latest evolutions, see Cornelius Hulsman (ed.), The 2014 Egyptian Constitution. Perspectives from Egypt, Tectum Verlag, Baden-Baden 2017.

The sharīʿa clauses can be in turn divided into two groups. The first group comprehends constitutions defining sharīʿa as “a main source of legislation” or analogous formulations. This is the case of Syria, Qatar, Kuwait, Bahrain the United Arab Emirates, the self-proclaimed Sahrawi Arab Democratic Republic, and the national authority of Palestine. A second group comprehends the constitutions defining sharīʿa as “the main source of legislation” or analogous formulations. This is the case of Libya, Oman, Somaliland, Yemen, the Maldives, Mauritania, as well as the previous constitution of Sudan. The case of Egypt is emblematic, in that its 1971 constitution defined sharīʿa as “a main source of legislation” (art. 2), only to be amended in 1980 to define it as “the main source of legislation”. Therefore, the evolution of the Egyptian constitutional discipline, with special reference to the phraseology used in this clause, is particularly useful to analyze the various implications of this model.

This approach is shared by Afghanistan, Iraq, Pakistan, and Somalia.

The Saudi Basic Law define Qurʼān and sunnah as its constitution (art. 1), however with the theoretical problem inherent to the transposition of the role and the conceptual scope of constitutionalism into an Islamic context. To be noted that the definition of the holy book of Islam as constitution was already used by the Libyan Declaration on the Establishment of the Authority of the People of 1977 (art. 2).

On the Saudi case, see the comprehensive work of Frank E. Vogel, Islamic Law and Legal System. Studies of Saudi Arabia, Brill, Leiden-Boston-Köln 2000; of the same author, see also “Saudi Arabia. Public, Civil, and Individual Shariʿa in Law and Politics”, in Shariʻa Politics. Islamic Law and Society in the Modern World, ed. Robert W. Hefner, Indiana University Press, Bloomington-Indianapolis 2011, pp. 55–93. Consider also Dorthe Bramnsen, “Divine Law and Human Understanding – The Idea of Shariʿa in Saudi Arabia”, in Shari‘a As Discourse. Legal Traditions and the Encounter with Europe, eds. Jørgen S. Nielsen, Lisbet Christoffersen, Ashgate, Lanham-Burlington 2010, pp. 157–178.

Legal literature on ISIS’ juridical views is actually lacking. Among authors who have written about this topic, with special reference to ISIS’ relationship with the post-Westphalian international order, see Robert J. Delahunty, “An Epitaph for ISIS? The Idea of a Caliphate and the Westphalian Order”, in Arizona Journal of International & Comparative Law, vol. XXXV, n. 1, 2018, pp. 1–70; Tal Mimran, “In A Broken Dream: Lessons from The Rise and Demise of the Self-Declared Caliphate of the Islamic State in Syria and Iraq”, in Journal of Transnational Law & Policy, vol. XXIX, 2019–2020 (July 2020), research paper n. 08–20, pp. 1–53. Consider also my volume, Federico Lorenzo Ramaioli, Islamic State as a Legal Order. To Have No Law but Islam Between Shari’a and Globalization, Routledge, London-New York 2022.

On ISIS’ conception of ummah, see James Piscatori, Amin Saikal, Islam Beyond Borders. The Umma in World Politics, Cambridge University Press, Cambridge 2019, pp. 134–159.