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4 UCLA J. Islamic & Near E. L. 95 (2004-2005)
The Doctrine of Separation in Classical Islamic Jurisprudence

handle is hein.journals/ucjicneal4 and id is 99 raw text is: THE DOCTRINE OF SEPARATION IN CLASSICAL ISLAMIC JURISPRUDENCE Babak Rod Khadem* I. INTRODUCTION This paper attempts to explain the doctrine of separation in classical Islamic jurisprudence. In undertaking this task, certain paradigmatic obsta- cles present themselves at the very outset, owing to the fact that the tradi- tional jurisprudences of both East and West have since been leveled by several features deriving from both Roman-Christian legal thought and mod- em positive law.' The classical Islamic concepts that are the subject of this paper, however, derive from a fundamentally different intellectual history. In both the Sunni and Shi'i contexts, for instance, the classical2 judicial domain emerged outside of the governmental realm such that the development of jurisprudence, the activity of legal codification, and even adjudication were, in the most essential sense, private phenomena.3 This independence of the judicial domain from central government resulted in further distinctive fea- tures such as the lack of any internal enforcement mechanism and the exis- *' J.D., University of California, Berkeley (2004); M.A. in Islamic Studies, University of California, Berkeley (2004); clerkship, Judge Cecilia Altonaga, Southern District of Flor- ida. The author is currently an associate in the Islamic and Middle East Finance group at King & Spalding, LLP, in New York City and is also pursuing doctoral research. His research interests include Islamic law and political thought, law and religion, and legal history. The author would like to thank Professors Hamid Algar, Philippe Nonet, and his father for their inspiration and support. I See generally Philippe Nonet, What is Positive Law?, 100 YALE L.J. 667 (1990). 2 This paper employs the term classical period somewhat loosely, referring to the era fol- lowing the mihna (inquisition) instituted by the 'Abbasid Caliph, al-Ma'mun. In doing so, this paper is largely informed by the arguments presented in PATRICIA CRONE & MARTIN HINDS, GOD'S CALIPH: RELIGIOUS AUTHORITY IN THE FIRST CENTURIES OF ISLAM (1986). 3 Henceforth, this paper employs the term private in contradistinction to the public realm of government. Private phenomena, in other words, are happenings that occur outside of the scope of the official political authority. Note that the essential privacy of the judiciary was notwithstanding the existence of official, public qada' (judges) whose function, as this paper argues, was merely derivative of the futya. See infra Section IV. 95