Khaled Abou El Fadl on the role of Muslim jurists in a nation state today

The role and function of Islamic law in the modern age has changed dramatically. In the age of the nation-state, the interpreters of the Shari‘ah play a fundamentally different role— they are no longer the maintainers of law and order and functionaries of a living sociologically viable legal system. The jurists of today cannot rely on the authoritative weight yielded by the idea of rule of law because they are no longer the representatives of that principle of law and order. The jurists of Islamic law in the current age ought to be far closer to being theologians and moral philosophers than lawyers. They no longer bear the burden of representing the law of the land, but they do bear the far more onerous and grave burden of being the advocates for the law of God. In other words, they cannot hide behind the functionalities and technicalities of legalism, but they must rise to the challenge of being the voice of conscience reminding people of the primordial, transcendental, and divine. This is nothing short of a complete shift of paradigm and total restructuring of the juristic culture in Islam. This is dictated by the fact that Islamic law in the contemporary democratic state cannot be enforced by the state. By definition, political sovereignty in the nation-state belongs to the citizenry of the state and not to God. The role of the faqih, or of the Shari‘ah expert, is critical— as the Qur’an describes it, [18] the role of those who study the divine law is to act as teachers and reminders to people of the call of conscience and the indicators (adilla) that point to God’s will. This necessarily means that the only method available to them is persuasion by appealing to people’s minds and hearts. If they fail to convince people to do what is good and right, then they have failed to be persuasive. I believe, however, that the function of those who take on the responsibility of witnessing for God is very different from the role played by those who are practitioners of a legal system. For those who witness on God’s behalf, testifying in terms of ethics, virtue, and also the aesthetics of beauty and transcendence is critical. Testifying for God— the very acts of shahada and jihad— is fundamentally about witnessing about godliness as opposed to godlessness. If under any set of circumstances a law or set of laws are attributed to God but the concrete results are unjust, unfair, oppressive, or ugly, this cannot be godly, and what is being perpetuated is a state of godlessness and not godliness.

Fadl, Khaled Abou El (2014-10-23). Reasoning with God: Reclaiming Shari‘ah in the Modern Age (Kindle Locations 12529-12546). Rowman & Littlefield Publishers. Kindle Edition. Page 365 in the book.