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Reversing Schmitt: The ! The Author(s) 2017
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DOI: 10.1177/1474885117730672
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the peculiarity of the Islamic

state of exception in
al-Juwayns dialectical
theology
Ahmed Abdel Meguid
Department of Religion, Syracuse University, USA

Abstract
This study presents an Islamic conception of sovereignty from mainstream Sunni the-
ology by closely examining Ghiyath al-umam f iltyath az-zulam, the major political work
_ _
of Abu al-Maal al-Juwayn (d. 478 AH/1085 CE), one of the key figures of the Ashar
school. Like Carl Schmitt, al-Juwayn attempts to excavate the grounds of sovereign
power by considering states of exception to political norms; however, al-Juwayns
position is the reverse of Schmitts. Al-Juwayn argues that the state of exception,
which defines the essence of sovereignty, is the absence of the sovereign power and
that the ultimate task of the sovereign is to secure a rationally pluralistic community.
Examining al-Juwayns Islamic conception of miracle (mujiza), the study argues that the
epistemological foundation of his characterization of the function of the sovereign
power is based on a uniquely dialectical critique of rational absolutism.

Keywords
al-Juwayn, exception, Imama, Islam, pluralism, Schmitt, sovereignty

Corresponding author:
Ahmed Abdel Meguid, Assistant Professor, Department of Religion, 501 Hall of Languages, Syracuse
University, Syracuse, 13244, USA.
Email: aelsayed@syr.edu
2 European Journal of Political Theory 0(0)

Prelude
At the end of the rst chapter of Political Theology, Schmitt (2005: 15) cites the
following quote from Kierkegaard:

The exception explains the general and itself. And if one wants to study the general
correctly, one only needs to look around for a true exception. It reveals everything
more clearly than does the general. Endless talk about the general becomes boring;
there are exceptions. If they cannot be explained, then the general also cannot be
explained. The diculty is usually not noticed because the general is not thought
about with passion but with a comfortable superciality. The exception, on the
other hand, thinks the general with intense passion.

Schmitt intended this quote to serve as a critique of the modern theory of the liberal
state, which claims to overcome arbitrariness and despotism through the regularity
of universal rationality. However, by purporting to eliminate arbitrariness, Schmitt
argued that the modern theory of the state attempts to circumvent the fundamental
issue at the heart of any political theory: sovereignty. The sovereign power exist-
entially manifests its capacity and legitimacy to rule by challenging rational norms;
hence, Schmitt (2005: 5) famously wrote that the sovereign power is the one who
decides on the exception. In turn, this state of exception has a deeply theological
character inasmuch as it mirrors the way the miracle manages to interrupt the
natural order of things. Schmitts characterization of theology and miracle
follows an essentially biblical perspective that has permeated Western political
philosophy since the late 16th and early 17th centuries.1 According to this perspec-
tive, through the miracle the transcendent God prevails over the immanent world
of material nature; the miracle is the place where the metaphysical/trans-historical
God intervenes and overpowers the physical/historical context. This is the dening
character of the concept and practice of sovereignty. Analogically, the sovereign
power intervenes in the juridical order to judge history metaphysically; such inter-
vention occurs in an absolutely arbitrary manner. This last point has led many
critics of Schmitt to highlight the dictatorial implications of his analysis. The state
of exception (die Ausnahme) is completely irreducible to any attempt that desires to
explain away the arbitrariness embedded in the sovereign constitution of political
judgment in terms of either a rational or a material teleology. Hence, to Schmitt,
political theology as a concept and practice is the arbitrary decisionism associated
with the state of exception; as such it is the originary moment of political judgment.
In this study, I put forward an Islamic response to Schmitts fatalistic charac-
terization of sovereignty as inescapably dictatorial through a careful examination
 al-umam f iltyath
of Ghiyath  az-zulam (Redemption of the Nations), the major
_ _
political work of one of the key gures of the Ashar school, the mainstream
representative of Sunni theology, Abu al-Maal al-Juwayn (d. 478 AH/1085
CE). In this work, al-Juwayn develops a rather unique approach to the question

of sovereignty (imama), setting him apart from most Ashar and Sunni thinkers.2
Abdel Meguid 3

Instead of merely discussing the role of the imam  or the functional guardian,3 the
conditions they have to fulll, their obligatory tasks and the criteria for their
selection, al-Juwayn innovatively divides his book into three parts. The rst part
is devoted to these doctrinally typical questions of the legitimacy of the imam, but
the second and third parts are innovative and atypical parts in comparison with

standard Sunni works on legitimate rule (imama). I demonstrate that in these parts,
al-Juwayn becomes interested in the essence of sovereignty and not only the con-
ditions of the sovereigns legitimacy. The second part is devoted to the criteria for
selecting a substitute for the functional guardian when no one meets the conditions
of an ideal guardian outlined in the rst part. The third part is devoted to a series of
four states of exception. The rst state occurs when there are no mujtahidun, 
scholars who are qualied to exercise independent judgments. The second state is

when there are no transmitters of doctrinal legal schools (naqilu 
al-madhahib) (Al-
Juwayn, 2011).4 In the third state of exception there is an absence of scholars but
 of Shara. The fourth and nal
the public are still aware of the principles (usul)
_
state of exception occurs when the public, left by themselves, are no longer aware
even of the principles of Shara.5 Al-Juwayn peculiarly asserts that these four
states of exception constitute the purpose for which he wrote the book (Al-Db,
1988). 6 In the last section of the second part of the book, al-Juwayn argues that
these four states reveal the ultimate of purpose (al-gharad al-azam) of the book. He
_ _
writes:

The discussion of the case when an age is devoid of scholars as it may be devoid of the
proper functional guardians (aimma) will be in the third part of the book which is the
ultimate purpose of it. We clarify our thesis regarding this possibility with respect to
dierent stages adducing relevant signs and evidence to eventually reveal an essence of
the Shara that has not come across any mind before . . . (Al-Juwayn, 2011: 469)

Al-Juwayn claims that he will bring forth an aspect of Islamic law and its practice
that has never been recognized before through the study of these four states of
exception. But what is the connection between these states of exception and the
avowed subject of the book, namely, the substance and the basis of legitimate
sovereignty in the Muslim polity? Furthermore, why does al-Juwayn consider
the exceptional state of the absence of scholars more fundamental in revealing
this aspect of Shara7 than the case of the absence of the functional guardian

(imam)? Al-Juwayn does not give a direct answer. This ambiguity is further com-
plicated by al-Juwayns assertion, in Section V of the rst part of the book, exclu-
sively devoted to the exposition of the duties, characteristics, and selection criterion
of the functional guardian, that: [t]he whole part on the nature and characteristics

of functional guardianship (imama) is not my purpose in this work (Al-Juwayn,
2011: 290). This study will put forward a possible explanation of this paradox. It
will argue that the four states of exception discussed in the third part of the book
provide the epistemological grounds for the role of the functional guardian and the
proper course of action that should be taken in the absence of the functional
4 European Journal of Political Theory 0(0)

guardian suggested by al-Juwayn in the rst and second parts of the book.
Epistemological grounds refers here to the general principles and limits of reason-
ing underlying the production of the normative and prescriptive claims of Shara.
In turn, these principles and limits determine the powers and the obligatory tasks of

the imam. In conclusion, I will argue that the substance of sovereignty for al-
Juwayn consists in guarding the plurality of rational orientations that he considers
characteristic of any body politic. This conception of the substance of sovereignty
is the essence of Shara that al-Juwayn contends that no one before him dis-
covered. It constitutes the basis of his recasting of the Ashar, Sunni conceptions
of the characteristics, the basis of the legitimacy, and the role of the sovereign in the
rst part of the book. Al-Juwayn thinks that these rational orientations reect a
denite set of ways in which humans, as rational agents, exercise their rationality.
Therefore, exploring their characteristics and understanding the need to guard
them, as the raison detre for sovereignty, should properly be in the exceptional
state of the sovereign powers absence. This is how the origin of the substance of
sovereignty can be claried.
In this sense, al-Juwayn, like Schmitt, believes that the state of exception reveals
the conceptual and practical essence of sovereignty. However, al-Juwayn adopts a
reverse description of Schmitts state of exception. Instead of representing excep-
tion as the ultimate expression of power that suspends any rational or epistemic
claims or norms, al-Juwayn uses states of exception to show how epistemic con-
cerns delineate powers scope and exercise. The purpose of the comparison between
Schmitt and al-Juwayn is twofold. On the one hand, the comparison sheds new
light on al-Juwayns Sunni defense of the rational basis of pluralism and the body
politic. This new perspective is important given the growing interest in Schmitt as a
key critic of liberalism and its epistemological foundations and the equally growing
interest in investigating the rational basis of sovereignty and legal order in Islam.
On the other hand, the attempt to interpret al-Juwayns interest in exception vis-a-
vis Schmitts is useful for articulating a possible Islamic contribution to the rela-
tionship between theology and political theory in general and the metaphysical
claims of theology, especially the concept of miracle and political theory, in
particular.
The rst part of the article explores the roots of al-Juwayns thought in Ashar,
Sunni epistemology, indicating that his conception of the states of exception serves
a political argument and not merely an argument about legal minimalism, as
Intisar Rabb argued (Cook et al., 2013). The second part of the article seeks to
articulate the distinctive quality of al-Juwayns state of exception and the concept
of sovereignty it generates vis-a-vis Schmitts. I then turn to Bonnie Honigs recent
critique of Schmitt and her attempt to construct alternative concepts of exception
and sovereignty. I show how al-Juwayns states of exception also dier from hers
and Schmitts. The article concludes by indicating the way in which its ndings may
contribute to advancing scholarship on Islam and the theory of the state in general,
and the nature of rationality in the Islamic view of the body politic and the concept
of sovereignty in particular.
Abdel Meguid 5

Abu al-Maal al-Juwayns state of exception and the problem

of sovereignty
Preliminary remarks: The early Ashar school on reason, sense experience,
and the dialectical critique of absolutism

The Ashar school of dialectical theology (kalam), founded by Abu al-Hasan Al
_
ibn Ismal al-Ashar (d. 324 AH/935 CE), has been by far the most inuential
theological school in the history of Sunn Islam. Over a period that extends for
more than a thousand years, legal scholars aliated with the four main schools
of Islamic law, Su Sheikhs, theologians, and even philosophical schools who
subscribed to this school pervaded the Muslim intellectual traditions. While the
Ashar school underwent important transformations throughout its history,
especially through its gradual acceptance of many philosophical arguments
from Avicennas corpus, it continued to maintain a key intellectual position
(Al-Sha, 2013). This stance consists in seeking an intermediate position
between the radical rationalism represented by the Mutazil school and the
traditionalist school of Ahl al-Hadth founded by Ahmad ibn Hanbal (d. 240
_ _ _
AH/855 CE) (al-Ghazal, 2012; Ibn Khaldun,  2006). For instance, on the ques-
tion of Gods attributes, the Mutazil school argued that God cannot rationally
be conceived to be composite, hence any attribute predicated of Him is just a
meaning through which we as humans understand His actions. By contrast, Ahl
al-Hadth argued that since in the tradition of the Prophet there is no attempt at
_
interpreting the status of the relationship between the attributes and the essence
of God then the attributes of God should be taken literally. This abstention from
interpretation (tafwd) led ahl al-Hadth to endorse anthropomorphic positions
_ _
(al-Ghazal, 2012). Abu al-Hasan Al ibn Ismal al-Ashar (d. 324 AH/936 CE),
_
the founder of the Ashar school, took a middle position,8 accepting the rational
forcefulness of the Mutazil argument and hence refusing to accept that Gods
attributes are added to or part of His essence. However, he refused to take the
step further and deal with them as metaphorical meanings. According to the
Ashar school, God transcends the domain of rational knowledge and its cate-
gories which are bound to the limits of space-time experience and its nite
objects. Therefore, it would be mere speculation to make any judgments about
the relation between God and His attributes based on the categories of rational
knowledge. Hence, al-Ashar argued that the relation between Gods attributes
and His essence are unlike any relation between a substance and its qualities (al-
Ashar, 1953).
But what are the foundations and tools al-Ashar uses to critique rationalism
and traditionalism? To respond to this question, I will briey examine the following
passage from al-Ashars famous treatise, A Vindication of the Science of Theology
 Istihsan
(Risalat  al-Khawd f Ilm al-Kalam).
 The treatise is dedicated to a critique
_ _
of the traditionalists who argue that kalam or dialectical theology is an innovation
(bida) that needs to be prohibited. Towards the end of the treatise, al-Ashar
6 European Journal of Political Theory 0(0)

(1953: 131) writes:

But even though there was no explicit instruction of the Apostle of God regarding
each one of these questions, they [some traditionalist theologians] referred and likened
each to something which had been determined explicitly by the Book of God, and the
Sunna, and their own independent judgment (ijtihad).  Such questions, then, which
involved judgment on unprecedented secondary cases, they referred to those deter-
minations of the Law which are derivative, and which are to be sought only along the
line of revelation and apostolic tradition. But when new and specic questions per-
taining to the basic dogmas9 arise, every intelligent Muslim ought to refer judgment
on them to the sum of principles accepted on the grounds of reason, sense experience
and intuition (badha). For, judgment on legal questions which belong to the category
of the traditional is to be based on reference to legal principles which likewise belong
to the category of the traditional. And judgment on questions involving the data of
reason and the senses should be a matter of referring every such instance to something
within its own category, without confounding the rational with the traditional or the
traditional with the rational.

In this passage, al-Ashar makes two important critical points. Firstly, he draws a
clear distinction between legal maxims and rules which should be referred to the
tradition and questions related to the principles of religion (usul  al-dn). But what
_
are these principles? Usul al-dn, as Ibn Khaldun (d. 808 AH/1406 CE) explains in
_
the Prolegomena to his History, represent the system of metaphysics in Islam (Ibn
 2006: v. 3); this system constitutes the conditions of accepting the two
Khaldun,
sources of tradition (Quran and Sunna). Secondly, al-Ashar argues that if ques-
tions are raised in connection with these principles, they cannot be referred to any
traditional source. If they were referred to traditional sources they would become
circular since we would be asking the tradition to provide answers regarding the
possibility of accepting this tradition in the rst place. But what are the resources to
which theologians should resort in order to answer a question about these prin-
ciples? Al-Ashar answers that there are three: reason, sense experience, and intu-

ition (Ibn Furak, 1987).10 But how do these resources work together?
Almost all works of Ashar theology begin with a chapter on the necessity of the
use of rational consideration (nazar). Al-Irshad, al-Juwayns concise work on the-
_
ology compared to the longer ash-Shamil,  starts with a similar section asserting that
rational consideration should be the basis of faith. Al-Juwayn, however, argues
against the Mutazil argument that rational consideration is an obligation recog-
nized by reason. For such an obligation is often recognized by particular empirical
intuition (hads) or a practical problem that one considers and through which one
_
realizes that rational consideration is obligatory. But if one is oblivious to such
thoughts, al-Juwayn argues, one would not be able to realize the obligatory nature
of rational consideration. Hence, al-Juwayn argues that rational consideration is
obligatory not on the grounds of tradition or through necessary rational recogni-
tion but rather through capability (tamakkun) (al-Juwayn, 2001). This means that
anyone who is capable of rational consideration will realize that one has to utilize
Abdel Meguid 7

reason in order to inquire about truth and knowledge of the world. But what are
the method and limits of the use of reason in al-Juwayns thought in particular and
in the Ashar school in general? As far as method is concerned, al-Juwayn and
al-Ashar both agree on the dialectical (jadal) use of reason. According to al-
Juwayn and al-Ashar, anyone can arrive at the idea of the sum of all perfections
in the same manner that the Platonic interlocutor starts the Republic, for instance,
by accepting the idea of justice; it is simply rationally intuitive. But after accepting
the idea of God, the person initiates, again like the Platonic interlocutor, a dialect-
ical (jadal) conversation about this perfect being with other members of their
community. The rst source for any participant in this intra-communal dialectic
is sense-experience. Now let us assume that this Ashar interlocutor encounters a
Mutazil interlocutor who argues the position outlined above: the argument that
God cannot have attributes. The Ashar interlocutor will, responding from the
stand point of experiential data, counter-question: how can God be knowing and
act upon perfect knowledge if He does not have this knowledge? A carpenter, for
instance, must have knowledge of carpentry in order to be able to utilize and act
upon this knowledge. The Ashar interlocutor will thus use counter-examples from
sense experience to limit the rational (burhan ) speculations of the Mutazil inter-
locutor. Therefore, from al-Juwayns and al-Ashars perspective, the Mutazil
rational position is similar to what many phenomenologists, especially Husserl and
Hieddegger, would consider a theoretical or reective standpoint that masks the
everyday (das Alltagliche) or the life-world (Lebenswelt) in Husserls language. In
order to accept the Mutazal position, a person is required to follow the logic of
speculative reasoning. This demonstrative (burhan  ) type of reasoning follows a
number of successively deductive steps that start with a given: there must be a
rst cause of the world. It ends in the unity of God and His indivisibility. Once
all these steps are completed, the Mutazil interlocutor realizes that it is logically
impossible to claim that there is an essence of God of which an attribute, say that
of being All-Knowing, is predicated. For if this is the case, many complex questions
would undo the logical progression leading to the idea of God in the rst place. For
example, would it imply that Gods essence was not complete and had only
attained completeness/perfection after the addition of this attribute? Second,
what cause acted on the essence of God leading to the acquisition of this attribute?
Therefore, we must rationally grant that these attributes are meanings through
which the essence of God is accessed by reason. So, when we say that God is
All-Knowing we do not mean that God has knowledge but that he knows by
virtue of being Perfect and since being All-Knowing is a perfection then His essence
is mediated through it (Martin et al., 1997). Realizing that the ordinary human
being in any society never follows this speculative rational path, al-Juwayn and al-
Ashar argued that it would be violent and unrealistic to expect people to go
through this. Nonetheless, the Ashar theologians gave a rather puzzling response.
They agreed with Mutazal theologians that God does not have the attribute of
knowing as a separate quality predicated of a certain essence. But they refused to
consider these attributes as mere metaphors. In my view this paradoxical answer
is what represents a commitment on part of the Ashar school to safeguard
8 European Journal of Political Theory 0(0)

the pluralism of rational interpretations. The Ashar interlocutor is rational, and

so concedes to the forcefulness of the Mutazil argument concerning the impossi-
bility of predicating attributes of God. However, like a good pyrrhonist skeptic, the
Ashar interlocutor systematically employs everyday sense experience through
counter examples that can refute or at least cast doubt on any claim of the specu-
lative Mutazil that goes beyond rationally intuitive ideas. Underlying this interest
in using sense data to curb absolutist rational claims are two considerations. On the
one hand, al-Juwayn and Ashar thinkers recognize that there could be equally
valid rational interpretations of the same concept, especially if such a concept is a
metaphysical one. On the other hand, the Ashar school recognizes empirically
intuitive knowledge (badh) as a source of necessary knowledge; it would be coun-
terintuitive to claim that a knower knows without having knowledge. Therefore,
their ultimate conclusion, as I mentioned above, is that God has knowledge in a
certain modality that is completely transcendent to human conception. As much as
reason guides us to recognize the transcendence of God, sense-experience instructs
us that any positive claim about Gods nature would be speculative. It is better to
stick to a dialectical logic, which celebrates and welcomes reason, while insisting on
limiting rational claims by empirical intuitions. While this position shares simila-
rities with Kants transcendental argument in the Critique of Pure Reason that one
should limit the legitimacy of knowledge claims to the boundaries of experience, it
is in direct opposition to his assumption of the rational autonomy of the subject
based on universal reason. The Ashar dissatisfaction with rational speculation
does not also lead to a dogmatic faith based on salto mortale like that called for by
Heinrich Jacobi in his debate with Moses Mendelssohn in the course of the
Pantheismusstreit. It is a position that invites the use of reason but stresses the
importance of checking such use to safeguard against falling into absolutist ideal-
ism. But what political framework could accommodate such epistemological com-
mitment? This sets the stage to consider al-Juwayns position on sovereignty.

The role of the functional guardian in Ghiyath al-Umam: The defense

of bounded rational pluralism
Al-Juwayn divides his book into three major parts. In Part I he outlines the basis of
legitimate sovereignty, starting by explaining the conditions of choosing the func-

tional guardian (imam).  is deter-
He criticizes the Shiites for claiming that the imam
mined textually (nassan) whether in the Quran or in the traditions of the prophet. He
__
argues that the legitimate ruler should be determined by choice (ikhtiyar)  by those
who have knowledge, giving exact conditions for identifying those who have know-
ledge (al-Juwayn, 2011). Al-Juwayn then devotes a considerable portion of Part I to
a discussion of the characteristics of an ideal functional guardian. The most salient of
these is that they should fulll the conditions of the exercise of independent legal
 11 He stipulates this condition so that the functional guardian
judgment (ijtihad).
would be able to understand and engage with the independent scholars of the age
independently. In turn, independent scholars, as Intisar Rabb rightly points out in
explaining al-Juwayns position, are capable of reaching right answers in response
Abdel Meguid 9

to any question addressed to them not in terms of content but in terms of applying
the proper methodology of legal reasoning (Cook et al., 2013). Independent scholars,
as al-Juwayn and most Muslim legal scholars maintain, can arrive at dierent pos-
itions with regards to the same problem in light of the methodologies employed by
each of the four accepted schools of Islamic law in interpreting the four main prin-
ciples of Islamic law (Hallaq, 2009; Ibn Khaldun,  2006). This pluralistic framework
allows for considerable sensitivity to individual dierences and custom. In order for
the functional guardian to secure this epistemic pluralism, they must be well versed in
the epistemological foundations and hermeneutical principles of the dierent schools
(Hallaq, 2009, 2013). The legitimacy of the functional guardian consists in being a
chosen defender of rational pluralism in the body politic.
Subsequently, al-Juwayn preliminarily denes the role of the functional guard-
 one concerned with religion and the
ian. He identies two major roles for the imam:
other concerned with the worldly aairs of the people. Concerning religion, the
task is twofold. The rst concerns the principles of religion (usul  al-dn) and
_
the other concerns the branches of religion (furu  al-dn). Regarding the former,
the task of the imam consists in protecting the public from slipping into fallacious
modes of thinking. In this connection, al-Juwayn makes an interesting historical
critique. He criticizes al-Mamun  (d. 218 AH/833 CE), the Abbasid Caliph, for
what he considers to be a state of intellectual liquidity in his age. This is not because
al-Juwayn is against intellectual freedom but because he is opposed to the bur-
dening of the public with absolutist intellectual assumptions that transgress the
limits of common sense. As I have explained above, a good example of these
intellectual assumptions would be the ve rational principles Mutazil theologians
stipulated that every Muslim should endorse. As far as the branches of religion are
concerned, that is, the practices of religion delineated by Islamic law, al-Juwayn
argues that the functional guardian should only be concerned with the general
logistical matters concerning the facilitation of these practices. Al-Juwayn asserts
that the functional guardian must not support one school of Islamic law against the
other, quoting the tradition of Prophet Muhammad, Dierence among my nation
is mercy (al-Juwayn, 2011). Hence, the role of the functional guardian is to secure
a domain for every political subject to live according to the practical maxims
resulting from the legitimate method of interpretation they are willing to adopt.
The gist of al-Juwayns argument in the rst part comes down to the assertion that
the functional guardian does not have absolute power and that their role consists in
securing a public domain for political subjects of dierent rational orientations to
function. Sovereign power consists neither in following a singular rational norm
nor in deciding on the exception to such norm, as Schmitt would argue; rather, it
consists in defending a nite multitude of possible rational norms.

Multiple states of exception and the essence of the functional

guardians sovereignty
 al-Umam, al-Juwayn discusses the state of exception wherein
In Part II of Ghiyath
there is no one who could possibly fulll the role of the functional guardian in
10 European Journal of Political Theory 0(0)

securing the conditions of a society of a proper Muslim pluralistic society. He

argues that in such a case each political subject should follow the independent
scholars of the school of law they endorse (al-Juwayn, 2011). In Part III, al-
Juwayn turns to four consecutive states of exception. The rst of these is the
complete lack of independent scholars. After carefully outlining the conditions
an independent scholar must fulll, he turns to the protocols of following them.
He poses an interesting question: if someone seeking a legal opinion follows a legal
school whose leader, say for example, al-Sha (d. 204 AH/820 CE), had given a
legal opinion dierent from the one the independent scholar of the persons age
gives, what should this person do? Al-Juwayn answers that this person should
follow the opinion given to them by the independent scholar of their age since
the latter is more aware of the historical situation and its variables (al-Juwayn,
2011). But what if there are no independent scholars and the only scholars left are
scholar-jurists who follow the doctrine of one of the four schools? Turning to the
second state of exception, al-Juwayn answers that in this case the member of the
body politic should rely on the scholar-jurists. While resorting to an independent
scholar would be much more eective since the latter are qualied to use methods
of legal deduction and apply them to the historical context of the legal opinion
seeker (al-mustaft), al-Juwayn asserts that the books of the expert scholars
abound with cases that could be used as a basis for analogically judging any new
case. Alternatively, the new case could be already included in a text from the
Quran or the tradition of the prophet on which the opinion of the founder scholar
of the legal school is based. In either case, the scholar-jurist has sucient references
at hand to address any new case they may encounter (al-Juwayn, 2011). Al-
Juwayn turns to the third level of exception, where there are not even scholar-
jurists who follow a particular legal school and know its opinions by heart. In
response to this case, al-Juwayn argues that every Muslim subject has to have a
sense of the ultimate purposes of the Shara along with a number of basic rules of
legal deduction (al-Juwayn, 2011). Here, al-Juwayn refers to the formative period
of Islam, explaining that the companions of the Prophet would always resort to the
use of the rational dialectic and dialogue. Subsequently, al-Juwayn devotes around
60 pages to a discussion of dierent examples of the dialectical use of the principles
of Shara. In all of these examples, the Ashar emphasis on dialectical rational
consideration and its commitment to the critique of all forms of idealism becomes
clear. For instance, he mentions the ruling that eating carrion is prohibited except
in extreme cases in which one runs the risk of starvation. He then assumes the
following case: what if an entire community is starving and the only food available
is carrion? What would be the ruling in this case? Al-Juwayn immediately replies
that since the harm resulting from the loss of an entire community is more than
that ensuing from the death of an entire individual then eating carrion in the
former case must be allowed as it is in the latter. Finally, al-Juwayn addresses
the fourth state of exception wherein there is no recognition of even the principles
of Islamic law. Al-Juwayn responds by saying that under such circumstances, even
if the people in this society believe in one God and in prophecy, they would be
absolved of any legal obligation. They will just use their reason to arrive at the fact
Abdel Meguid 11

that there is a God, an all-perfect being, and try to preserve their existence by
seeking benet and avoiding harm.
Towards the end of Part III, al-Juwayn (2011: 558) writes: I have authored this
book for a great purpose; I imagined the dissolution of Sharia and the demise of its
bearers and the peoples turning away from it . . . Al-Juwayns discussion of these
states of exception could be interpreted as an outline of the necessary (darur  )
_
course of action in the worst of all cases. However, I would like to suggest a
dierent interpretation. As mentioned above, al-Juwayn insists that outlining
the characteristics and role of the function guardian is not the main intention of
his work; rather, this work aims to reveal an essence of Shara (al-Juwayn, 2011).
This very claim suggests that there is a relationship between the assumption of
successive exceptional states of the absence of the guardian and then the inter-
preters of Shara and the core of the issue of sovereignty, the subject matter of the
book. According to al-Juwayn, the functional guardian is a guardian of a specic
community (umma); this community is dened not territorially or nationalistically
but through shared belief and the practice of Shara. Al-Juwayns claim that the
discussion of how these states of exception reveal an essence of Shara that has not
been properly explored before him is inextricably related to the subject matter of
the book, namely, sovereignty. But how is sovereignty related to these states of
exception? The answer is that the states of exception reveal the epistemological
grounds of sovereignty. I will show the harmony between these epistemological
grounds and the Ashar perspective on rational pluralism described above.
Here it is useful to make a preliminary contrast between al-Juwayn and Schmitt
in preparation for a fuller discussion of the relationship between sovereignty,
rationality, and theology in both thinkers. In radical contrast with Schmitt, al-
Juwayn contends that the state of exception constitutive of sovereignty is not
represented by irreducible arbitrariness at the heart of political judgment. For
Schmitt, such arbitrariness is the essence of sovereignty. The theological nature
of that sovereignty consists in its capacity to intervene arbitrarily in the order of the
body politic, suspending the law in the state of emergency. Thus, the sovereign
power is both inside and outside of the legal order (Agamben, 1998; Schmitt, 2005).
Al-Juwayns picture is the exact opposite. The state of exception occurs when the
Muslim political subject is expected to constitute a political judgment in the com-
plete absence of the functional guardian who protects the community of rational
pluralism or even scholars who represent models for the exercise of reason.
Perusing this ultimate state of exception, al-Juwayn unveils a characteristic of
Shara that he argues no one before him discovered. This essence is the pluralis-
tically rational nature of interpreting the general schemes of Shara and inferring
their relevance to specic historical contexts. According to this essence, the role of
the functional guardian, which in turn is the essence of sovereignty, consists
in safeguarding the social and intellectual conditions of such rational pluralism.
This pluralism, unlike the claims of the modern state, does not expect the individual
to follow a rigid rational framework represented by well-dened parameters of
material or transcendent reasoning (as is the case in Hobbes and Kant respect-
ively). Rather, every subject of this community, based on their own orientation,
12 European Journal of Political Theory 0(0)

would choose a legal school whose system of interpretation ts them. The exibility
and comprehensiveness manifested in the eorts of the independent scholars within
each school respond to the range of the possible uses of reason by the members of
the body politic. The role of the functional guardian comes down to the securing of
the necessary and sucient conditions of this rationally pluralistic society. This
does not mean that the imam  is simply a libertarian ruler. Rather, the space of
freedom accorded to the subjects of the Muslim state is limited by the rational/
logical recognition of the idea of a necessary existent that is the sum of all universal
perfections. The belief in these universals and the constant attempt by sub-com-
munities to construct practical, ethical, and aesthetic maxims according to their
own justications constitutes the orientation of this community of rational sub-
jects. Examining these universal parameters will allow us to better understand why
al-Juwayn depicts the state of exception as the inverse of that of Schmitt.
Furthermore, it will show how this diers from the assumptions of rational auton-
omy made by many Kantian liberals.

Ashar theology and al-Juwayns functional guardian: A regressive

legitimization
This section oers a regressive interpretation of the relationship between the states
of exception al-Juwayn outlines in Part III and the concept of sovereignty I have
argued for in the previous section in terms of the protection and preservation of the
pluralistically rational interpretation of Sharia. I will argue that the successive
states of exception represent successive developmental phases of the pluralistic
exercise of reason that demonstrate the essence of sovereignty in terms of the
protection of such pluralism. Reversing the order of al-Juwayns states of excep-
tions, I will show how they regressively serve to legitimize the exercise of sover-
eignty as a guardianship of rational pluralism. The rst phase represented by the
ultimate state of exception consists in the preliminary use of reason; in this state,
political subjects dialectically arrive at the basic idea/principle that there is a neces-
sary existent. This is the rst stage of the use of reason according to Ashar and
Mutazil dialectical theology (al-Juwayn, 2001). This being represents the sum of
all possible universal schemes and values that could govern a specic society. The
second level of the foundation of a rationally pluralistic body politic follows after
the recognition that no rational or dogmatic assertion could be made about the
nature of these universal schemes or their relation to the world. At this stage there
is a demand for a framework that could mediate these universal schemes to
the particularities of the human historical condition. It is a demand for a frame-
work that could maintain a balance between total absolutism and total relativism;
since neither rational speculation nor historically relative cultural claims are
accepted by al-Juwayn, he would welcome accepting revelation as resource.
But such revelation cannot be a dogma or a comprehensive doctrine in the lan-
guage of Rawls; it must be a frame for negotiating the transcendentally universal
with the historically particular, giving birth to practical maxims (Hallaq, 2009).
Abdel Meguid 13

This is the state of exception that occurs when there are no scholars and when only
the political subjects recognize the principles of Shara. But the political subjects of
the society realize that there are dierent ways of negotiating the relations between
universal schemes and the particular historical situation in order to arrive at prac-
tical maxims. For instance, how would justice be dened in each and every situ-
ation? How would compassion be determined in the same contest? How could both
be reconciled? In this stage there is a need for scholars who can practically apply
universal rules to particular incidents. This is the state of having scholar-jurists yet
lacking independent scholars. As this process of applying universal schemes to
particular situations and contexts continues, the need arises for having classes of
individuals who have the capacity to come up with new interpretative schemata in
each and every historical period that in turn represent dierent modalities of har-
monizing the universal ideas with specic historical situations. In this stage, inde-
pendent scholars emerge. These scholars by contrast to the scholar-jurists have the
capacity to explore the epistemological grounds of the dierent methods of apply-
ing universal rules to particular situations. Hence, they furnish the theoretical basis
required for the scholar-jurists to undertake their task. Finally, the need arises for
having a protector of this body politic and this is the state when the need for the
functional guardian emerges. The regressive construction of al-Juwayns states of
exception reveals a natural development of the exercise of reason through which
the need for a sovereign who secures the conditions of a pluralistic body politic is
recognized as necessary need. These developmental phases are neither sources of
direct representation nor contracted leviathans in Hobbes sense. They are rather
manifestations and catalysts for the expression of the dierent uses of reason.

Miracle, theology, and the state of exception: Al-Juwayns

Islamic versus Honigs Jewish critiques of Schmitts sovereign
Al-Juwayn and Schmitt: Inverse states of exception
In Political Theology, Carl Schmitt (2005: 20) writes:

All signicant concepts of modern theory of the state are secularized theological
concepts not only because of their historical developmentin which they were trans-
ferred from theology to the theory of the state whereby, for example, the omnipotent
God became the omnipotent lawgiverbut also because of their systematic structure,
the recognition of which is necessary for a sociological consideration of these con-
cepts. The exception in jurisprudence is analogous to the miracle in theology. Only by
being aware of this analogy can we appreciate the manner in which the philosophical
ideas of state developed . . . The idea of the modern constitutional state triumphed
together with deism, a theology and metaphysics that banished the miracle from the
world. This theology and metaphysics rejected not only the transgression of the laws
of nature through an exception brought about by direct intervention, as is found in the
idea of the miracle but also the sovereigns direct intervention in a valid legal order.
14 European Journal of Political Theory 0(0)

For Schmitt, the theological act that survives from the pre-modern through the
modern essentially consists in the rupture resulting from the arbitrary intervention
of the divine power that is both inside and outside of history. Hence, Schmitt notes
that the modern sovereign, whose role the liberal state tries to mask through pro-
cedural legalism, is both inside and outside the constitutional order. But how does
this compare to al-Juwayns picture of the body politic?
As indicated above, the functional guardian of al-Juwayn is not the counterpart
of Schmitts sovereign power. The latter disrupts a regularized body politic that
follows coherently formal laws that are presupposed to already exist. These formal
laws can be either rational, positive ones like those of the Enlightenment liberal
state or they can be a religious, juridical order that assumes a natural law from
which a divine and a human law participate, following the Catholic picture in
Aquinas politics (Aquinas, 1996). According to Aquinas, the sacredthe divine
lawand the secularthe kings lawcomplement each other to represent and
sustain the regularity of the natural law. Without this assumption about the nature
of the body politic, Schmitts theory of sovereignty would not hold. By contrast, al-
Juwayn argues that the essence of the functional guardians sovereignty consists in
protecting the rational pluralism constitutive of the political community. In this
sense, the functional guardian is always located inside the body politic. But the
body politic is pluralistic; it does not rely on a strict frame of normative rationality.
The functional guardian is thereby not Schmitts suspending agent; it is rather a
catalyst facilitating an irreducible pluralism.
In this pluralistic community, every political subject is expected to use their
dialectical reason to establish the central transcendent concept of metaphysics,
God. Once a basic rational faith is achieved based on this simple rational exercise,
the role of reason from this point onwards is mainly deconstructive, demonstrating
that every rational argument can be equally refuted by another rational argument.
All laws of nature are considered contingent or customary (adiyya); hence they are
never considered inherently true. Moreover, all fatwas or legal opinions are histor-
ically conditioned as much as they represent the application of the general ruling
(hukm) to the conditions of the age (asr). Accordingly, arguments and explan-
_ _
ations that avoid absolutist positions, whether from an idealist or a materialist
perspective, have more normative value than arguments requiring predetermined
epistemological concessions. This epistemological commitment in a Muslim body
politic is determined in terms of three factors. The rst factor comprises the uni-
versal purposes set by Shara; these are dened by principles of theology, with the
names of God representing universal schemes at its heart and public interests
determining the practical implications of these values in context. The second
factor comprises the variety of practical orientations. For Muslims, this variety
is accommodated by the four schools of Islamic law as described above; however,
non-Muslims are also fully granted the right to have their own practical orientation
as along as the systems of interpretations they adopt respect the parameters
of rational pluralism. The third factor is an aspect that was later added by
al-Juwayns student al-Ghazal, namely aesthetic taste (dhawq) that is developed
Abdel Meguid 15

through self-discipline. The scholars (including theologians, muftis, and

scholar-jurists) merely make explicit by way of systemization the same rationale
and interpretative parameters latent in the multiple use of reason in dierent con-
texts. Hence, al-Juwayn called the state of exception in which all levels of scholars
are totally absent the key determinant of his exploration of the problem of sover-
eignty in Islam inasmuch as it reveals the basic form of the pluralistic exercise of
reason whose guarding is the sovereign powers main function. Since these individual
orientations in the exercise of reason are numerous, harmonizing them according to
the three aforementioned factors requires the intellectual eort of the theologians
and the regulatory eort of the jurists. In the absence of these theologians and jurists,
individuals are expected to have a bare minimum of intellectual and practical cap-
acity to exercise reason. In such a case, resorting to reason becomes a must, and
hence general rules that achieve a degree of regularity that de facto work to build the
Muslim body politic. In other words, contrary to Schmitts assumption about it as a
monotonous imposition on the existentially arbitrary exercise of power, the rational
regularity, according to al-Juwayn, is a constituent fundamental of the body politic
that unfolds as the foundation of sovereignty.

Al-Juwayns verus Bonnie Honigs critique of Schmitt

In Emergency Politics: Paradox, Law and Democracy, Honig (2011) oers an alter-
native to Schmitts conception of the relationship between sovereignty and the state
of exception. Honig critiques Schmitts Oedipal denition of sovereignty in terms
of the state of exception . . . in which the law is legally suspended by sovereign
power . . . (Honig, 2011: 87), leading to a condition . . . in which we or, rather,
sovereign powers are neither subject to law nor free of it but rather both . . .
(Honig, 2011: 87), Honig oers an alternative conception of sovereignty that is
also based on a state of exception. Honigs alternative conception is an attempt to
think of sovereignty:

. . . as a set of circuits, contingent arrays of diverse forces and powers that, like grains
of sand that sometimes run smoothly and sometimes clump up, fall into place as
they . . . produce (and are produced by) the declaration of a state of exception.
(Honig, 2011: 88)

Honig turns to Rosenzweigs conception of miracle to dene a state of exception

that could possibly furnish the grounds for the concept of sovereignty she seeks.
But what conception of miracle and hence exception does Rosenzweig oer?
Honig identies the uniqueness of Rosenzweigs conception of miracle in terms of
the dierence between Christian and Jewish theological and philosophical perspec-
tives in the Weimar intellectual scene. Both Schmitt and Rosenzweig were con-
cerned about Enlightenment deisms banishment of the miracle from the human
world (Honig, 2011). But Schmitt, drawing on Christian theology, claimed that
. . . miracle on which the exception is modeled is an interruptive force that
16 European Journal of Political Theory 0(0)

suspends the ordinary lawfulness of the world and thereby exhibits divine power
and sovereignty (Honig, 2011: 94). By contrast, Honig contends that for
Rosenzweig . . . it is precisely this construal of miracle as interruptive and illustra-
tive of a naked sovereign power that is the problem that must be solved (Honig,
2011: 94). Such a conception just arms the claim of the deist rationalist. A more
immanent notion of miracle should replace that radically transcendent notion of
exception. A radical rupture should be sought. Only such alternative notion can
respond to the criticism of the liberal, rational deist who masks the arbitrariness of
political and legal decisions and judgments through formal procedures.
Honig turns to Eric Santners analysis of Rosenzweigs distinction between sor-
cery and prophecy, magic, and miracle in Rosenzweigs analysis of Moses situation
at Meribah. Honig (2011: 99) writes, Moses is barred from entry to the Promised
Land because of this incident at Meribah. He will die in Moab, able to see the
Promised Land from the mountaintop, but not able to enter the land. But why is
Moses so harshly punished? Honig, following Santner, argues that according to
Rosenzweig, Moses acted in this incident as a sorcerer rather than a prophet. She
writes (Honig, 2011: 100), He used force not nesse, hands not speech. He slipped
from prophet to magician, he performed the magic but not the miracle . . . But there
is more . . . Moses stole Gods thundershowing himself, hubristically to bring
out the water with his rod rather than speaking and then witnessing, along with the
Israelites, gods work in a more self-eacing way (Honig, 2011: 100). Hence Honig
(2011: 102) concludes that Moses failure is not:

. . . because he disobeyed god . . . but because he did not see the people as they need to
be seen, as the people to whom his land has been givenas free people capable of
giving and receiving prophecy as bearers of mere and more life.

The miracle as an exception here is the irreducible diversity of the materiality of

life. Dierence and diversity is the characterizing essence of material instantiation,
which, since Plato, distinguishes it from the sameness of rational thoughts or
forms. Schmitts and Agambens conceptions of sovereignty with their roots in
the Christian miracle of incarnation privilege the Platonic fascination with same-
ness that is only aorded by universal rational forms. According to Schmitt, the
Enlightenment, liberal body politic is supposed to follow laws of reason, which
represent the rational essence that denes the human autonomy of the members of
this body. But political judgments and legal decisions evade all frames of formal
regularity; there is essential arbitrariness at the heart of every political decision/
judgment. Sovereignty ultimately represents this arbitrariness inasmuch as it has
the capacity to suspend all laws and even the constitution and thus make possible
the state of exception. Through the state of exception the sovereign power, accord-
ing to Schmitt, demonstrates the inescapability of dictatorship. Dictatorship is not
mere arbitrariness, though; it is the capacity of the universal dened by the sover-
eign power to frame the material reality of the historical context in the manner that
evades any description by rational monotony. Accordingly, Honig (2011: 107)
Abdel Meguid 17

quotes William Conollys material critique of Agambens and Schmitts concep-

tions of sovereignty:

Politics and culture, however, do not possess as tight a logic as Agamben suggests.
They are more littered, layered and complex than that. The dense materiality of cul-
ture ensures that it does not correspond neatly to any design, form, pattern of ecient
causality or ironclad set of paradoxes.

Miracle, as understood by Rosenzweig, aords a concept of exception as an invi-

tation for all aspirations and projections of the sovereigns subjects. Honig (2011:
108) writes:

If the exception is like the Rosenzweigian miracle not the Schmittian one, then the
miracle serves not as an imposition, not an exemplication of top-down sovereign
power, not as a source of political unication and cohesion, not as a rupture in the
normal order; or perhaps it is better to say, it risks being all these things but not only
these: for it is also an invitation for which diverse members of the assemblage of sov-
ereignty need to be dierently prepared and rightly or well oriented. Or else, it will turn
out to have been that the sovereign decision in any moment was not a miracle . . .

This concept of exception challenges the norm-exception dualism that is assumed

by Schmitt and Agamben. It allows the exception to be taken to the exception as
much as it invites the dense levels of material culture to act as sovereign. In other
words, the Rosenzweig-inspired concept of exception has a radically democratic
thrust that enables the subject of the sovereign to be sovereign. So, while both
Schmitt and Rosenzweig would accept that the exception is the power of real life
breaking though the crust of ordinariness, for Rosenzweig, the exception challenges
the binary of the norm-exception, leading to a sustained state of exception. This is
contrary to the momentary sense of exception of Schmitt, wherein the sovereign
power divinely interrupts the norm to dispel the delusion of a rational-based regu-
larity and establishes order by a universal that it arbitrarily imposes on historical
materiality. The exception that founds sovereignty for Honig is a sustained state of
exception that allows the immanent forces of the members of the body politic to re-
dene, re-shape, and steer sovereignty. But how can the dierent aspirations, the
diverse desires for more-life crystallize in a general framework for sovereignty?
Would it simply create another regulated ordinariness that still awaits another
rupture of exception? If this is the case, would not Schmitt (2005: 66) simply reply
to Honig with his answer to Bakunins anarchism?

Every claim of a decision must be evil for the anarchist, because the right emerges by
itself if the immanence of life is not disturbed by such claims. This radical antithesis
forces him of course to decide against the decision; and this results in the odd paradox
whereby Bakunin, the greatest anarchist of the nineteenth century, had to become in
theory the theologian of the anti-theological and in practice the dictator of an anti-
dictatorship.
18 European Journal of Political Theory 0(0)

How would al-Juwayns Islamic concept of sovereignty compare and/or contrast

with that of Honigs? According to al-Juwayn, and the preponderance of the
Ashar school, no assertive claims could be made about nature; this was their
response to arguments based on necessary causation made by Peripatetic philoso-
phers and some of the Mutazil theologians. Perhaps the most famous illustration
of this position is al-Ghazals example in the Incoherence of the Philosophers about
re and burnt cotton. The causal connection between re and burnt cotton is
simply contingent; this contingent connection is based on recurrent custom (ada 
muttarida) (al-Ghazal, 2000). In this vein, al-Amid makes the following argument:
__
if we assume that it is correct that many of the temporal events [in our world]
accompany the movement of celestial stars and spheres, this does not imply the
latter are causes and reasons necessitating them . . . (al-Amid, 2010). From the
Ashar perspective there is no natural law; nature, as in modern quantum mech-
anics, is probabilistic. The miracle is just a rupture of the customary, of the already
contingent. This attitude immediately takes away from the awe of the miracle. If
the norm, if this is at all possible, is already contingent, its rupture or suspension
does not entail an awesome intervention by the transcendent God into the imma-
nent frame of power. In other words, the miracle that is brought by the transcend-
ent power is not a violent intervention in the immanent order of the world. This
view becomes very clear in al-Juwayns explanation of the respect in which the
miracle indicates the truth of the prophecy of a prophet. Al-Juwayn asserts that
the respect or the manner in which a miracle vindicates a prophet is like that in
which a rational proof demonstrates a particular result. Rather, a miracle indicates
the truth of prophecy inasmuch as it leads to assent (tasdq) to its claims. Al-
_
Juwayn (2001: 325) gives an interesting example to illustrate his point:

If a King summons his subjects . . . and one of his entourage stands: O People
Gathered here, a great thing has happened to you . . . and I am Gods messenger to
you and he entrusted me with you . . . So my king, if my claim is true change your
custom . . . stand up and sit down. If the king does what this man asks him to do, then
people would assent to him claim . . .

Al-Juwayn then argues, against the possible response of Mutazil theologians, that
in order for his argument to hold he has to assume that God has to be bound by the
laws of reason. Hence, God is not completely omnipotent; he has to follow the
rules of morality that we discover rationally. Al-Juwayn (2001: 326) responds:

Every one who witnesses this scene would know that the king believes that this man is
a prophet . . . And intuitively no one of the attendants would assume that a king would
break his habits in front of his people in order to lure his subjects.

The logic of the miracle for al-Juwayn and most of the Ashar theologians evi-
dently reects the commitment to curb idealistically rational claims, as indicated
above. The miracle does not prove prophecy by way of the awe it inspires inasmuch
as it interrupts the norm. The miracle invites assent to the prophecy of the prophet.
Abdel Meguid 19

This is why al-Juwayn argues that the main distinction between miracle and a
work of magic does not lie in the objective nature of either. Also, the dierence
between them does not lie in the attitude of the prophet-sovereign, as was the case
in Honigs analysis of Rosenzweig. The dierence between the work of magic and
miracle lies in the context of each. The latter happens in a context of a challenge
that the prophet poses to his people to demonstrate his prophecy.
But how does the concept of miracle t with al-Juwayns characterization of
sovereignty and the states of exception I depicted in the previous section? The
previous sections argued that al-Juwayn deems the defense and preservation of
rational pluralism the essence of the sovereignty of the functional guardian. This is
the new aspect about the interpretation and practice of Shara he discovered
through the assumption of the exceptional state of its absence. As I have shown,
the assumption al-Juwayn and the Ashar theologians make is that humans cap-
able of reasoning would use their reason and embark on a rational consideration
(nazar) that would lead them to a belief in a God or perfect being. Humans, as
_
rational agents, would then continue to use their reason to make sense of the nature
of this God. In addition, humans inasmuch as they continue to use their reason
would also want to know the relation between this God and their lives. To put it
dierently, rational subjects would want to know how such a transcendent being
could relate to the immanent structurenatural, social, and humanof their
world. Through considering dierent counter arguments and the proper checking
of rational claims by sense date, these subjects would grow skeptical about any
dogma explaining such relationship, whether rational or traditionalhence, the
attack of the Ashar theologians against the rationalists and the traditionalists
alikeand consider it unsatisfactory. These rational subjects would look for a
doctrine that could put forward a way of relating the transcendent universals
with historical context without falling into absolutist claims with exclusionary
tendencies. For al-Juwayn, this doctrine is Shara or Gods regulation of
human behavior. Here the role of the miracle that vindicates Shara as a system
that accommodates rational pluralism becomes decisive. According to al-Juwayn,
miracle does not bring forth a model for the triumph of the transcendent over the
immanent through the intervention of the sovereign God as in the case of Schmitts
theory. Similarly, it does not simply invite a revolt of the immanent force against
the horizon of an indeterminate transcendence, as Honig characterizes
Rosenzweigs depiction of miracle and exception. The miracle, as a vindication
of the rationally pluralistic system of Shara, is an interpretative frame that
allows for multiple rational modes of relating the transcendent to the immanent
without imposing one over the other. Hence it is always connected with the context
in which humans use their reason, which in turn has a determinate spectrum. It is
neither immanently relative nor transcendentally absolute.

Conclusion
Examination of al-Juwayns Ghiyath al-ummam revealed a Sunni perspective on
sovereignty that draws on a special conception of exception and miracle. According
20 European Journal of Political Theory 0(0)

to this perspective, the sovereignty of the functional guardian (imam)  consists in

protecting the pluralistic spectrum of rational hermeneutics in the society. In turn,
the boundaries of this hermeneutical spectrum are dened by the attempt to under-
stand the ways in which the idea of the necessary existent, as the sum of all
perfections, can be rationally interpreted. This understanding of the essence of
sovereignty constitutes the ultimate purpose of Shara to al-Juwayn. The devel-
opment of the use of reason from the basic level initially exercised by every ration-
ally capable individual through the pluralistic society of scholars who represent the
sophisticated array of the possible ways of the exercise of reason reveal the foun-
dation of the body politic that the functional guardians main obligation is to
protect. Al-Juwayn assumed the successive states of exception to articulate this
foundation and show how it legitimizes his conception of the essence of
sovereignty.
This interpretation of al-Juwayns conception of sovereignty oers an inter-
mediate alternative to the idealism of classical liberalismthe Kantian version is
a good exampleand the arbitrariness of Schmitts dictatorship. Further, it does
not lend itself to the hazard of collapsing into material relativism as Honigs model
does. Instead of insisting on a singular form of universal reason as a basis for moral
and political judgment as Kant does, al-Juwayn argues for multiple yet nite ways
of exercising reason. The common basis shared among these dierent rationalities
is the epistemic recognition of the modal distinction between the necessary existent
(God) and the possible existents. This does not necessarily lead to a reconstruction
of a medieval, naturalistic system of onto-theology. On the contrary, al-Juwayn
and most Ashar thinkers were against such systematically demonstrative con-
structions of metaphysics and politics. The recognition of this modal distinction
is just an epistemic basis that allows for multiple practical and theoretical dialect-
ical logics of understanding of the relationship between the necessary and the
possible. I would like to argue that this model of rational pluralism has a key
advantage over the communicative model of Habermas transcendental prag-
matics. In his inuential article Religion in the public sphere, Habermas
(2006) argues that advancements in science and technical reason should be the
common basis of rational dialogues in a post-metaphysical rational society.
Al-Juwayn would counter-argue Habermas, contending that this is a rather
demanding and unrealistic criterion just like the standards set for faith by his
contemporary Mutazil scholars. Recognizing the epistemic modal distinction
between the necessary and the possible seems a more reasonable requirement for
the public to fulll. Finally, this rationally pluralistic body politic where sover-
eignty merely consists in safeguarding the conditions of its existence and free prac-
tice can hardly be deemed compatible with the modern Hobbesian sense of the
Leviathan sovereign. Hence, this study partially supports, from its own perspective,
Wael Hallaqs claims in his recent work The Impossible State that the Sunni legal
and political system cannot be tted within the framework of the modern state.
However, the study agrees with a growing literature on the rational nature of
Islamic political judgment in particular and the importance of rational
Abdel Meguid 21

hermeneutics for the Islamic conception of the body politic in general. It just
articulates its distinct nature in comparison to modern models of rational
liberalism.

Declaration of conflicting interests

The author(s) declared no potential conicts of interest with respect to the research, author-
ship, and/or publication of this article.

Funding
The author(s) received no nancial support for the research, authorship, and/or publication
of this article.

Notes
1. This perspective is clear in Hobbess (1994) discussion of prophecy and miracles in sec-
tions xxxvixxxviii of Part III of the Leviathan and Spinozas (2011) similar discussion
especially in Chapters 2, 5, 6, and 7 of the Theological-Political Treatise.
2. Discussions of sovereignty (imama) in the theological works of Ashars and other Sunni
thinkers are often brief and center on the necessity of choosing a sovereign, the necessary
and sufficient conditions of choosing someone as a sovereign and critiquing the Shiite
denial of the legitimacy of the succession of the first three Caliphs of Islam (Abu Bakr,
Umar, and Uthman) (al-Amid, 2010; al-Ghazal, 2012). Sunni scholars, who wrote
whole books about the subject like al-Juwayan, devoted their works to more detailed
discussions of the previous three themes, adding sections about methods of and religious
obligations concerning governance. For a major work representative of this genre of
literature see, for example, Abu al-Hassan al-Mawards Kitab  al-Ahkam 
 al-Sultaniyya.
_ _ _
3. I have deliberately chosen to translate the word (imam)  as functional guardian to dis-
tinguish him from the sovereign in the Western tradition. I will elaborate on the reason
for this choice later in the article. In a recent article, Ovamir Anjum (2016) argued that
the imam in al-Juwayns thought is best described as a shepherd and a weaver. He
shows that al-Juwayn combined a Hebraic notion of the ruler as shepherd with a
Platonic one of the ruler as weaver. However, Anjum rightly points out that the imam 
as a shepherd is one of the people; according to al-Juwayn, the imam  does not have the
right to interfere in their private lives. According to Anjum, the imam in their capacity as
a shepherd only protects the creed and safety of the community of the Muslims, the umma
which is defined by faith and not territorially as is the case in the modern nation state.
While I generally agree with Anjums remarks, I will disagree that the imam  is protecting
a dogma of convictions or faith. Instead, I will argue that the imam  is the guardian of a
pluralistic spectrum of interpretations that allows for including different ways of under-
standing the relationship between the idea of the necessary existent and historical context.
According to this interpretation, the umma is not strictly defined by the Muslim faith;
followers of different religions may participate in the community as much as they fall
within the boundaries of this spectrum, as will be fully explained in the article. For this
reason, I chose to render imam  as functional guardian in order to avoid the rather
patronizing and patriarchal implications of the words shepherd.
4. These transmitters are not like the public who have no knowledge of the Islamic sciences
and are thus pure muqallidun;  the public may accept the legal opinions (fatwas) without
necessarily knowing their ratio legis. Rather, these are scholars who are aware of the
22 European Journal of Political Theory 0(0)

methodologies developed to deduce legal opinions by the founders and independent

scholars of the school to which they belong. However, they are incapable of using
them (al-Juwayn, 2011)
5. It is noteworthy that the last state of exception does not refer to a state of nature in the
sense of Hobbes or Locke. Al-Juwayn starts from a quasi-Aristotelian position in his
conception of politics. Humans by nature are social animals. Outside the city there are
either Gods or Beasts. Hence no contract is needed to overcome the evil of the state of
nature. This view is reinforced from a theological perspective by the complete absence of
the concepts of original sin or radical evil.
6. Abd al-Azm al-Db argues that al-Juwayn constructs his entire vision of the political
_
domain on these consecutive states of exception. Al-Db even suggests that al-Juwayns
discussion of the role of the imam  in the first part should be read in light of these states
of exception inasmuch as they delineate the fundamental conditions and indeed the
raison detre for the functional guardians basic tasks (al-Db, 1988).
7. Shara is used by al-Juwayn in both the general and ideal sense of Gods regulation of
human behavior and the way this ideal is specifically interpreted and used to serve as a
basis for defining and governing the body politic in the context of discussing sovereignty
(Hallaq, 2010).
8. This position was endorsed and reconstructed by al-Juwayn and almost all the Ashar
theologians.
9. The Arabic original is (usul)  which is usually translated as principles.
_
10. Intuition (badha) refers to the principles that are intuited by reason as necessary without

reflection or proofs (Ibn Furak, 1987).
11. Ovamir Anjum rightly argues that al-Juwayn stipulated that the imam  should attain the
 or the exercise of independent judgment in order to guarantee the
level of the (ijtihad)
independence of the functional guardian. Independence here, as I would like to further
elaborate, refers to the ability of the functional guardian to take an impartial stance
towards different theological and legal schools which, in turn, represent different modes
of rational interpretation of the two sources of Islam: the Quraan and Sunna (Anjum,
2016).

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