I still think that the scholarly rulings are important even to the state.  Moreso, getting your average Muslim to understand the importance of thier opinion and the differences between their common mullah and the scholar is critical.  Once this is achieved, then the state can transform.

We're allready seeing many reform movements in SA, in Iran and they are growing.  We even on occasion see the willingness of the royal family to get involved in this reform (statements from princesses in regards to women driving).  Much of that has to do from pressure that is comming from outside of the ME and we (western muslims) hold the keys to change in the ME through our examples and pressure that we can exhert.  The internet as well is becomming a great tool to share our thoughts - look at all of the blogs comming out of Iran and look at Willows latest post about the smiling arrested blogger.  There is an opportunity for high-speed information and ideology exchange and it should be taken advantage of.

[My first post got messed up, so I try again.]

Perhaps a digression, but necessary to point out: It is Qur'anicly binding upon Muslims to follow scholarly opinions. Allah subhanahu wa ta’ala says in the noble Qur’an,

"Not all of the believers should go forth to fight. Of every section of them, why does not one part alone go forth that the rest may gain understanding of the Deen to admonish their people when they return, that perhaps they may take warning." [9:122]

This Qur’anic verse establishes that there should be a category of people who have learned the religion so as to be qualified in turn to teach it. And Allah has commanded those who do not know a ruling in Sacred Law to ask those who do, by saying in Surah al-Nahl,

"Ask those who know if you know not" [16:43]

Moreover, the scholar must be a person who does what his religion requires him to do. The Qur'an says,

"If you are pious and God-fearing (Taqwa), He will bestow on you the gift of discriminating between right and wrong." [8:29]

with you more Ali. good show. i love the catch-all of ijma of the scholars. its so convenient. and i also just love the calls for abandoning all of it, without defining what "it" is that we are abandoning. like any system of law, Islamic law needs to be more systematized if it should ever be implemented (i.e. how can you implement the punishment for adultery without also implementing the standard of proof for it?) and how it can properly be implemented within a nation-state where the ruler's law really reigns supreme is not something that's been figured out yet. would love to hear from our resident Islamic Law scholar on this.

received so far are utterly divorced from reality. at the least, have learned nothing at all from how change has been taking place in the laws of the muslim world.

first of all, there is the idealist position of dmz who has problems with the very acknowledgment to law, preferring instead a each man to One God methodology. that is great for theology, not running a state.

then we have the perfect inverse of that position in servantof allah, another idealist position which simply seems to establish the fact that the scholars have authority over us, yet cannot comprehend the major point of the post that IRRESPECTIVE of the authority of the scholars, there are competing, and often overarching authorities above and beyond the scholars. in tyrannies, that is usually the dictator. in democracy, that is usually the demos (but not necessarily since the people often simply follow what the majority of scholars are saying).

then we have omarg's attempt to limit the point to the western context, which is not what i'm talking about. i'm talking mostly about muslim countries and how what is considered "consensus" needs to be revaluated. "consensus" -- and keep in mind this is law we're talking about -- is always based on authority. 5 million mullahs holding one opinion means nothing if the non-democratic state is not willing to put AUTHORITY behind their consensus. please rethink the example of the qadianis.

i admit i am merely thinking things out with this post, and have not written a glittering syllogism. however, if you are going to comment, lets try to focus in on the issue of authority of the state in terms of setting down the law in muslim majority countries vis a vis the authority of the scholars. just that. i dont want to hear whether scholars should have authority. or whether the state shouldn't.

this is not a SHOULD problem. it is a problem of WHAT.

i've never been interested what SHOULD happen to contructs like Islamic Law, or Theology, or Islaaaaaaaaaaam. I have only cared to know what IS the status of power and authority at the moment. Who controls it. Once we know that, we can better target efforts at doing things that would improve people's lives.

I confess that most people don't think like this, preferring instead to talk about either the history of the institutions and what they used to be, or the future of the institution, and what they need to become. Yawn. Make a reader diary for that. 

So those who do want to reasses the post should go back to the Goma/Qadiani examples. The Qadiani example shows that the only way people can know what is a consensus is if that consensus has legal authority. unless something has legal authority, it is just an idea. Indo-Pak scholars may have had consensus over the issue of Qadianis being non Muslim since the occultation of Mirza Ghulam Ahmed, but that IDEA didn't mean anything until it became LEGALLY BINDING by way of the force of the STATE in 1974. 

I think we need to revise our notion of consensus, but not throw it out.  Consensus, in the classical sense, was derived from two sources 1) the hadith that states "My people will never agree upon an error" and 2) a proposition of epistemology that a statement is either 100% true or 100% false.  Thus, if the community has agreed, and what it has agreed upon cannot be an error, then the agreed upon doctrine is 100% true.  Thus, if at any point in time there is consensus on a doctrine, no future ijtihad or even consensus can undo the original consensus.  This doctrine presents a barrier to "reformers" who find certain rulings, e.g. stoning of adulterers, to go against their modern sensibilities.

I don't have an issue with the quoted hadith.  I am no hadith scholar, but I think it has the ring of truth to it.  What I take issue with is the epistemology behind the doctrine of consensus.  Now, the idea that a statement must be either absolutely true or false might seem appropriate to natural sciences, but how does it apply to law?  Because the ulema were supposed to discover the divine law (Shariah), and not invent human laws, it was thought to be a scientific process.  There is no notion of gradation, that some laws are better than others.  A law either conforms to the divine law, or does not.   But what if the divine law is flexible, and can be implemented in different ways, or even should be implemented in different ways, depending on culture and circumstances?  Then the consensus of one generation loses weight as another generation succeeds it.  Further, since legal theory (usul al fiqh) has always incorporated epistemology into its methodology, I think we have an obligation to incorporate advances in epistemology, such as those of Karl Popper and Thomas Kuhn.  Thus, we must come up with a new, 21st century understanding of Islamic law, and cannot be bound unconditionally by any medieval consensus.

I am not saying we should ignore a past consensus.  But I think it is incumbent upon us to discover cultural and historical factors that may have led to a certain consensus being effective at the time it was reached, but may make it inapplicable today.

Finally, on the notion of an "unjust consensus" -- we should remember that a consensus requires 100% agreement.  If Ali Gomaa disagrees with the rest of the Egyptian ulema, then Ali Gomaa's voice is enough to negate a consensus.

I agree 100% with Ali (Eteraz) that the greatest problem in the Muslim community today is anarchy.  I have a related question.  Has it ever been the traditional teaching of a major school of Islamic law that a punishment can be given by a lay person in the absence of a ruling by a qadi?  I ask this specifically in reference to the horrible murder of that Pakistani Minister.  Is there any treatise, written by any authority on Islamic law, that would justify individuals taking the law into their own hands and dishing out punishments as they see fit?  It seems absolutely crazy to me that there are Imams and Mullahs out there preaching to their followers to go kill others whom they think break God's laws.  If they are so convinced of their own righteousness, shouldn't they try to convince a qadi somewhere to take up the case?

 bullet points:

the power of consensus cannot be separated from the power that the state gives to it.

Islamic Law has not yet figured out how to reconcile itself with the modern nation state.

brilliant analysis. 

 so now what?? 

Oh dear! Let's put it another way. The reason for restoring Islamic law is because most people are too ignorant and/or stupid of its basic precepts of Islamic law and the nuances of textual analysis to make decisions regarding how God thinks they should live. I don't think so, matey!

And there lies yer problem, you see. When 14th century madrassa scholarship imposed its conservative, dogmatic Shariah outlook on Muslims in the 14th century, there was the scholarly class, closely allied with the merchant class, and then there was the riff raff, who did as they were told if they knew what was good for them. But the ulema generally stuck for the riff raff AGAINST the political classes, who were -as they are today - generally interested in power more than people (see El Fadl on this point).

Now we have a burgeoning Muslim middle class - assertive, individualising, educated, consensual. They have seen, time and again, what happens when ulema and politicians get into bed with one another. It's a human rights disaster.

Stop being so patronising. I'm smart and educated, like a lot of people who read this book. I read widely. I have Kamali's excellent introduction to Shariah and I have plenty on my bookshelf that is more heterodox. And I have Alim software, with multiple translations of Qur'an and all the major hadith collections on, with search engines that chuff on scholarly memory.

I don't need people like you to tell me what/how to think, thanks!

Stare Decisis in Islamic Law

wassalam