اسلامی قانون) فقہ (اور جدید ریاستی قانون کی تعمیروتشکیل کی عملی صورتیں: حلاق کے نظریات کاتنقیدی جائزہ

Practical Forms of the Construction and Formation of Islamic Law (Fiqh) and Modern State Law: A Critical Study of Hallaq’s Theories

Abstract

This article presents a critical analysis of Islamic law (fiqh) and the formation of modern state law, with particular reference to the thought of Wael Hallaq. Whereas Greek philosophers such as Plato and Aristotle conceived ideal states that remained confined to theory, the Prophetic era and the rightly guided Caliphate (al-Khilāfah al-Rāshidah) established a practical state system grounded in justice, equality, and consultation (shūrā). Hallaq’s notion of the “Impossible State” mirrors the utopian projects of earlier philosophers, denying the possibility of a viable Islamic state within the framework of modernity. While his critique of Orientalism, colonialism, and modernity is valuable, his reduction of Sharī‘a to an evolving human juristic construct is problematic. From an Islamic perspective, Sharī‘a is revealed, comprehensive, and permanent. This study highlights that the positivistic law of the modern nation-state, with its division into public and private law, cannot be reconciled with the divine framework of Islamic law. It argues that contemporary Muslim societies must overcome colonial legacies by reviving Qur’ān- and Sunnah-based strategies. On the state level, this includes reviving brotherhood (muwākhāt), covenants (mīthāq), rule of law and justice, and the struggle (jihād) for rights; on the societal level, it involves moral awakening through enjoining good and forbidding evil (amr bi’l-ma‘rūf wa nahy ‘an al-munkar). The article concludes that the authentic model of an Islamic state already existed in the Prophetic and early caliphal period, offering a practical and sustainable alternative for the modern age.