CHAPTER II

ISLAM AND STATE SYSTEM IN

HISTORICAL CONTEXT

CHAPTER II

ISLAM AND STATE SYSTEM IN HISTORICAL CONTEXT

One can not understand the relationship between Islam

and politics until one appreciates the centrality of law

(i.e. Sharia) to Islamic civilization. As one observer has

remarked, "the Sharia is the epitome of Islamic thought, the

most typical manifestation of the Islamic way of life, the

core akd Kernel of Islam itself"l Classical Islam conceived

the Sharia and the state to be one. It is based on the

proposition that the law precedes the state, both logically

and in terms of time; and the state exists for the sole

purpose of maintaining and enforcing the law. 2 Similarly,

another scholar also conunented, "in Islamic thought, the

state should only be the public exponent of Islamic ideology,

ensuring the unity and security of Muslim people, and

enforcing the Sharia but itself subject to the Law".3

Indeed from the Islamic state founded by Prophet

Muhammad and developed under Rashidun (the Four Rightly

Guided Caliph) to the present day Muslim nation-states, the

1. Joseph Schaet, An Introduction to Islamic law (Oxford, 1964) p. 1.

2. H.A.R. Gibb, "Constitutional Organization" in M. Khadduri and H.J. Liebeseny, ed., Law in Middle East. Origin and Development of Islamic Law, (Washington, 1955),. Vol. I, p. 5

3. Mahmud A. Faksh, "The Islamic state system: A Paradigm for Diversity," The Islamic Ouarterly (London), Vol. 21 , no. ( 1988), pp. 14 - 15 .

34

principle of Sharia remained for the most part the basis of

running the affairs of the state atleast in theory, if not in

practice. For Islam, the Sharia is the standard by which

political action is measured. For Islamic fundamentalists,

the Sharia is the only legitimate means of state rule. For

reformers, the Sharia (at least in its entirety) no longer

meets the moral, economic and political needs of the modern

Muslim states. For ecclectics, parts of the Sharia can be

moulded together with other legal structures to create a

modern, but still Islamic, political entity. For certain

Islamic j urisprudes, the Shari a can be developed anew,

consistent with its fundamental sources and principles, to

meet the needs of twentieth century Islam. Finally,

whichever of the many governmental forms a modern Islamic

state may take, the Sharia .remains a visible standard,

consciously applied, modified, reformed, rejected, or

redeveloped as the case may be.

Hence before examining the evolution and changing nature

of Islamic state system, one should look into the precise

meaning, nature and content of Sharia.

The word Sharia occurs in the Our' an in an aya t where

God addresses the Prophet, "Thus We gave you a Sharia (a path

to be followed) in religion so follow it and follow not the

wishes of those who have no knowledge" (al-Ja-thiyah, 45:18).

Thus Shari a means "the right path" to follow. In its common

usage, shariah refers to commands, prohibitions, guidance and

principles that God has addressed to mankind pertaining to

35

their conduct in this world and salvation in the next.

Contemporary Muslim scholar Fazlur Rahman has translated

Sharia as "the ordaining of the way." 4 In Sharia the

emphasis is upon obligations rather than upon rights, and

upon the divine origin of the law. The Sharia is not,

therefore, law in the normally accepted senses of the term,

it contains an infallible guide to ethics. It is

fundamentally a doctrine of duties, a code of obligations.

Legal considerations and individual rights have secondary

place in it. S

Classical Islamic thought maintains that the Sharia is

the law of God set down for all time in the divine

revelation. It lays down that the legislative authority and

power rest with God alone and hence the Umma (or nation-

states in modern times) enjoys a derivative rule-making power

and not an absolute law-creating prerogative. Orthodox Sunni

doctrine state that the sources of the law or constitutional

authority are the Our' an, the Sunna, ijma' (consenous of

opinion), and giyas (analogy). To these some authorities add

ijtihad (independent reasoning), and a variety of terms all

equating generally to the concept of 'maslaha' (public

interest) The Our' an and the Sunna of the Prophet are

4. Fazlur Rahman, Islam (New York, ~1968), p. 117.

5. Asaf A.A. Fyzee, Outline of Muhammadan Law, (Calcutta, 1949), p. 16) also, S.G. Vesey-Fitzgerald,' "Nature and Sources of the Sharia" in Khadduri and Liebesney, no.2, pp. 85-86.

36

deemed to be primary sources and the remainder are secondary

sources. The resulting corpus of law is variously named the

Sharia or. Muslim 'law, the two terms sometimes being

synonymous and sometimes having quite distinct meanings

and frequently being used, somewhat confusingly, in both

senses. Nevertheless it is possible to identify four

different definitions for the term Sharia in the sense of

Muslim law in history:-

A.

the

It comprises the entire corpus of

first four or five centuries of

law elaborated over

the Muslim era and

contained in the legal compilations of the recognized schools

of law;

B.

c.

It comprises rules and principles contained in

Our'an and the Sunna (the latter in its entirety);

It comprises rules and principles contained in

Our' an and that part of the Sunna which is

authentic and concerned with the elucidation

interpretation of the precepts; and

the

the

both

and

D. It comprises only the rules and principles contained in

the Our'an

Given this diversity, it, therefore, seems reasonable to

examine briefly the nature of the classical sources and their

relationship.

37

The Our/an and the Sunna : Primary sources of the law

For Muslims, the Our'an is the revealed word of God. It

must, by definition, be divinely ordained, immutable, and

valid for all time and all places. The Our/an calls itself

by such alternative names as huda (guidance) and dhikr

(remembrance), not a code of law. By far the greater part of

its 6,235 ayat are devoted to moral and religious themes,

devotional matters, the Here after, and even the history of

the bygone events and parables. The legal or practical

contents of the Our' an, often referred to as the ayat-al-

alkam, constitute the basis of what is known as figh al-

Our'an. There are some 350 legal ayat of this kind, most of

which were revealed in response to the problems that were

actually encountered. Although the Our'an contains specific

ruling on such matters as marriage, divorce, inheritance and

penalties, the larger part of Quranic legislation consists of

broad and comprehensive principles. Being the principal

source of the Sharia, the Our'an provides general guidelines

on almost every major topic of Islamic law. While commenting

on this, Abu Zahrah concurs with Ibn Hazim's assessment that

"every single chapter of figh finds its origin in the Our'an,

which is then explained and elaborated by the Sunna.,,6

The Sunna (Tradition), because it comprises the

Prophet's teaching positive practice, and tacit approval of

·the practice of others, represents an example of the manner

6 . Quoted in Muhammad Hashim Kamal's "Source, Nature And Objectives of Shariah," Islamic Ouarterly Vol;33, no.4 (1989), p. 226.

38

in which the Ouranic principles should be put into practice.

It is generally held to be at least divinely inspired (since

the Prophet was the messenger of God), if not , divinely

ordained and part of revelation, though not with the same

authority as the Our'an.

As a source of Sharia, the Sunna enacts its rulings in

the following three capacities. Firstly, it may simply

reiterate and corroborate a ruling which originates in the

Our'an.

variety.

A substantial part of the Sunna is in fact of this

Secondly, the Sunna may consist of an explanation

or clarification to the Our'an. It may clarify the

ambivalent (mujmal) of the Our' an qualify the absolute

(mutlag) or specify the general (~). A substantial part of

the Sunna falls into this category, in which case the surina

basically explains and interprets the Our'an. The following

two varieties between them constitute the largest bulk of the

Sunna, and the ulama' are in agreement that both of' these are

integral to the Our'an,

independently from the

they may not be seperated or taken

Our'an. 7 Thirdly, the Sunna may

consists of rulings on which the Our'an is silent, in which

case ruling in question originates in the Sunna itself.

Another important aspect with regard to Sunna is that

there was a considerable industry in the fabrication of

hadith in order to provide prophet~c, if spurious, legitimacy

for points of law, argument, and practice. This resulted in

7. ibid, p. 228.

39

the six canonical collections of hadith and it is almost

possible to find a hadith to support any particular argument.

Indeed, one scholar remarked, that the hadith is the form in

which, we state our conclusion.

SECONDARY SOURCES OF THE LAW

X1ma Literally, it means "the consensus of the

community" as expressed in the famous prophetic saying - "My

community will never agree on error." However, there has

been considerable argument concerning those who are qualified

to participate in the consensus. For some jurists, only the

ulama, the men of learning, were so qualified for others it

had to be based on the precedent, (the entire community) A

few others restrict the consensus to the opinion of the

Companions of the Prophet. However, despite the diversity of

opinion on this issue, the doctrine of iiffig has been defined

as· "the concordant doctrines and opinions of those who are in

any given period .... the men with the power 'to bind and to

loose', it is their office to interpret and deduce law and

theological doctrine, and to decide whether law and doctrine

are correctly applied. ,,8

Ijma became a powerful force for conformity and

gradually dominated Islamic jurisprudence among the Sunnis,

for whom it provided stability and a consistent source of

authentications. But it 'would be a mistake to consider all

8. Ignaz Goldziher, Introduction to Islamic Theology and Law, Andras and Ruth Hamori, trans. (Princeton, 1981), p. 52.

40

ijma as infallible in the sense of formal truth value. As

Fazlur Rahman has obser.ved, "one must distinguish between

authority and infallibility in this context what is

regarded as infa~lible by every Muslim scholar is the ijma'

as method and principle rather than its contents which ar

regarded as authoritative, not inifallible. The Muslim

doctrine of ijma has a strong practical bent and there is no

talk of absolute truth-value of its content, but only of a

practical rectitude value. 9

Qiyas:- Literally it means 'the practice of analogical

reasoning.' Since the Our' an, the sunnas and ijma did not

necessarily cover all contingencies, administrators and

jurists relied upon their own judgement. In due course, the

principle was established that where there was no clear and

direct precedent in the more authoritative source, those

sources must be searched for a case sufficient·ly similar in

underlying principles to provide an analogy and hence to

deduce the correct judgement. Oiyas is, in fact, a specific

form of ijtihad used to extend and apply the principles and

rules set out in the Our' an the Sunna, and ijma' to the

solution of problems not previously regulated.

Iitihad :- Ijtihad means striving or self-extortion by

the muj tahid in deriving the rules of Sharia on particular

·issue from the courses. It allows for logical reasoning to

deduce a rule where no precedent exists. Since the divine

9. Fazlur Rahman, n. 4, pp. 83-84.

41

revelation has come to an end with the demise of the Prophet,

ijtihad remains the main instrument of interpreting the

divine message and relating it to the changing conditions of

the Muslim community. Hence, most leaders of reformist or

renewalist movements necessarily claim the right to practice

ijtihad.

However, it is generally admitted that since the

codification of the doctrine of Islam by the four great

orthodox Imams, this door (of ijtihad) is closed and that

Muslims must conform their opinions strictly to the opinions

enumerated by these Imams without seeking to arrive by means

of their own reasoning at a personal opinion about the tenets

of Islam. With this development the gate of 'ijtihad' was "-

closed for all time and the era of taglid set in. 10

Has1aha :- It is regarded by some as a source of the law

and is based on the premise that one purpose of the. law is to

serve man's best interests, and to promote his well being and

welfare in this world and in the next. Thus, although it may

be argued that anything which was clearly in the public

interest, which was conducive to maintaining or improving

public welfare, and which was not specifically forbidden,

could be contrived as part of God's design, jurisprudents

10. See, John L.Esposito, "Law in Islam" in Yvonne Haddad, Byron Haines, and Ellison Findly, ed., The Islamic Impact (Syracuse, 1.984), p. 74, also, John O. Voll, "Renewal· and Reform in Islamic History Tajdid and Islah" in Esposito, ed., Voices of Resuggent Islam (New Yorh, 1.983), P .38.

42

were cautious in their espousal of the proposition and only

in the Hanbali doctrine was it fully accepted. 11

Shii Legal Theory

Shii's theory on the sources of constitutional authority

and on the nature of the law provides a more dynamic form of

law. In particular, the Shii draws a clear distinction

between the Sharia which comprises the divinely ordained law

and figh which is ' precise and profound deduction of the

Islamic regulations of actions from the relevant sources' or

'the study of the secondary commands (i.e. not the principal

matters of beliefs and moral perfection but the commands

regulating actions) of the Sharia of Islam gained from the

detailed resources and proofs. 12 Furthermore, by elevating

gg! (reason) to the status of a source of the law they reject

the Sunni disavowal of ijtihad and have given deductive

reasoning a more important place than it occupies in Sunni

theory.

For the Shii the sources of the law are the Our'an, the

Sunna, agl and ijma. However, the shi'a definition of the

Sunna and of ijma differ from the Sunni definition. In the

case of the Sunna, the Shii accept only those hadith

transmitted through one or more of the Imams, and some

believe that traditions of the Holy Prophet should be

11. Patrick Bannerman, Islam in perpective . a Guide to I·slamic Society, Politics and law. (London & New York, 1988) p. 40.

12. ibid, p. 46.

43

accepted through the channel of narrations by the people of

the Holy Prophet's progeny- i.e. only hadith transmitted

through the line of Imams are acceptable. 13 Shii theory also

holds that the Sunna of the Imams is also binding on the

rational grounds that the Imams are, like the prophet,

sinless and infallible.

The Shii' concept of ggl is closely linked to ij tihad

since 'the Shii' jurist uses 'ggl' usually supported by the

other three sources of the law, - - - - - to arrive at legal

decisions and this process is called ij tihad. 14 The

rationale behind the concept of agl is that although God is

the sole creator and provider of the law, He has furnished

man with reason and the power of reasoning so that he may

properly identify the terms of the law. Hence the doctrine

identifies the ulama collectively as the valid and licit

t~ansmitter of the Sunna and the authoritative interpreter of

the law.

Shii' definition of ijma' takes into consideration the

'unanimous' view of the ulama on a particular issue.

However, for it to be binding, it must be the consensus of

the ulama of the time of the Prophe.t, or of the Imams. Where

there is a difference of opinion, the ulama are required to

13. Kashif al-Ghita, The Shiah Origin Haq, trans. (Bombay/Karach/London, p. 139.

and Fai th, M Fazal 1985), 2nd edition,

14. Moojan Momen, An Intorduction to Shii Islam The History and Doctrine of Twelver Shiism (New Haven and London, 1985), pp 185-6

44

consider the variations and in due course arrive at a

unanimous consensus. However, it is only binding if it

reflects the opinion of the Prophet or of one of the Imams,

a somewhat paradoxical situation whereby the validity of

unanimous agreement is based upon the participation of a

single individual. 15

THE ISLAMIC STATE UNDER MUHAMMAD

Neither the Our'an nor the Sunna spells out in details

the constitutional framework of the state. According to

Ustadh Ahmad Muhanunad Jamal of Egypt _II Islam did not evolve

any definite form of government not did it lay down

detail,s for it. It only lays down some foundational

principles of generalized nature which do not vary with space

and time and on which it is possible to build (a state) for

the welfare of the people. 1116 It was the Medina

constitution, drawn by Prophet himself, which brought into

existence the Islamic polity - developed under the period of

Rashidun and came to be regarded as the only 'truly' Islamic

polity and one which was an example for all succeeding

generations. All Islamic revivalist movements look back to

this 'golden era' of Islamic history as a constant source of

inspiration. Perhaps the reason behind the II trueness II of

15. A.K.S. Lambton, State and Government in Medieval Islam (Oxford," 1981), p. 228.

16. Quoted in Asghar Ali Engineer's The Islamic state (New Delhi, 1980), p. 38.

45

Islamic polity lies in the fact that" to Islam is due the

birth -of a nation, the birth of a state, the birth of a

national history and the birth of a civilization. ,,17 wilfred

Cantwell Smith also opined that the Islamic conception of

history is unique and in some ways history is more

significant for Muslims than it is for almost any other

group. 18 For in the strict sense there is no such thing as

Christian history, certainly there is no Hindu history.

There is the history of Hindus and of Christendom, there is

even the history of the Christian church, but these are not

quite the same thing. 19 In fact, for the Muslim, community

and hi s tory are " spec ial". For him they are, as f or not

other, of religious significance. One would going only

slightly too far to say that his society and its history

partake of an almost sacred quality also. 20

The essential points of Medina constitution defining the

nature of Islamic state are as follows :-

1. The believers and their dependents constitute a single

community (YJ:m:ng)

2. Each clan or subdivision of the community is

17. Hazem Z. Nuseibeh, The Ideas of Arab Nationalism (New York, 1956), p. 32.

18. W.C. Smith, Islam in Modern History (Princeton, 1957), p.6

19. ibid, pp. 21-22.

20. ibid, p. 16.

46

responsible for blood money and ransoms on behalf of

its members (Art 2-11) .

3. The members of the community are to show complete·

solidarity against crime and not to support a criminal

even ~hen he is a near kinsman, where the crime is

against another members of the community (Art, 13, 21).

4. The members of the community are to show complete

$olidarity against the unbelievers in peace and war

(arts 14, 17, 19, 44), and also solidarity in the

granting of neighbourly protection (Art 15) .

5. The Jews of various groups belong to the community, and

are to retain their own religion, they and the Muslims

are to render ' help' (including military aid) to one

another when it is needed (Art 24-35, 37, 38, 46) .21

Though Watt elaborated these articles to show that the

Islamic polity was essentially based on the tribal political

concepts, and concluded that during Muhammad's life time the

state was nothing but the federation of tribes. 22 But in

reality it went beyond that. As one scholar has rightly

commented that though "the state did not succeed in

completely dismantling the tribal structure in the Muslim

World,

21.

it nevertheless created the psychological and

W. Montgomery Watt, The Islamic Survey, 1968), Vol. 6, p-5.

(Edinburgh,

22. ibid, see, chapter one.

47

spiritual conditions conducive to an easier transition away

from tribalism".23 The new Muslim political community

introduced a pattern of social organization based on

religious solidarity (asabiya diniyah) that sought to replace

tribal solidarity (asabiyah gabaliyah) 24

Indeed the Medina constitution restructured political

life in Medina according to a new conception of community

cohesion, solidarity (asabiyah), and relationship. The new

body politic, the constitution declared, consisted of

emigrants (al-Muhajirun) from Mecca, the helpers (al-Ansar)

of Medina, and those who were attached to them and crusaded

with them. 25 Muhammad was recognized as the head of the new

Muslim Commonwealth, which meant he was not only a religious

leader but also head of an organized political community.26

Islam was the basis of the civil society that came into

existence with its spread in Arabia. It found its ultimate

expression in the development of the Umma (the community of

believers) as the spiritual and material commonwealth of the

Muslims. 27

23. Ishtiaq Husain Qureshi, "The Background of Some Trends in Islamic Political Thought", in Ralph Braibanti and Joseph Spengler, ed., Traditions. values and socio­Economic Development (Durhan, 1961) p. 182

24. ibid, p. 182

25. Muhammad Nazeer Kaka Khal, "Foundation of the Islamic State of Madina and its Constitution", Islamic Studies, Vol. 21, no. 4 (Autumn, 1982)" p. 67.

26. Syed Ameer Ali, The Spirit of Islam (London, 1965), pp. 51-55.

27. Sir Muhammad Iqbal , -=T..:.h:..::e::.....-...:R~e=:-=c..:::o:.:.n:..::s=.;t=ru=c::..::t::.:l.=.· o=n,---"o=<--,f"---,R=e""l,-,,i::,.:g;J.ol.=.' "",o""u~s Thought in Islam (Lahore, 1934), p.148.

48

The new state founded by Muhanunad was an ideological

state based on principles which permeated every aspect of the

socio-economic and political life of the polity. The Prophet

was the religious and temporal Head of the state. He was the

chief 'conununicator of God's laws, the chief justice, the

commander- in- chief, and the head of the administrative

machinery. He regulated social relations; passed laws in the

light of the Our'an and enforced them. He raised armies and

commanded them, and he acquired new territories and

administered them in consultation with his companions.

Medina was the capital of the Muslim state of Arabia, which

was divided into several provinces with a governor (wali)

appointed over each to establish law and order and to see to

the administration of justice in accordance with Islamic law

(Sharia)28

Thus the state founded by Muhanunad was a religious state

based on general Islamic concepts and values laid down in the

Our' an, which seeks to guard and guide man's spiritual and

worldly affairs;

temporal) . Thus

for Islam is deen wa dunya (spiritual and

one scholar conunented, that the "Muslim

conununity in the life time of Prophet (was) a society of

laymen [or believers," for there is no priesthood in Islam",

which means also no laity in Islam) living together for

religious ends by taking care of its mundane needs. 29 Albert

Hourni, the noted scholar, has also conunented, "the Islamic

28. Faksh, n.3, p. 7.

29. Qureshi, n.23, p. 185.

49

community could not be complete unless it was also a state,

and political action was a way of serving God: it is a duty

t.o consider the exercise of power as one of the forms of

religion, as one of the acts by which man draws near God.,,30

THE CALIPHATE

with the death of Prophet Muhammad in 632 A. D., two

forms of governmental institutions came into existence - the

Cliphate or the Imamate, which in turn owed their existence

to the 'method' of succession to Prophet. While the majority

resorted to the method of 'selection through consultation' in

choosing the Prophet's successor, Shii (the minority) hold

that the succession must be in line of Prophet lineage.

Before discussing the theory of Imamate, it will be useful to

sketch out the brief history of the institution of the

Caliphate.

There is a consensus among Sunni scholars that the

method of 'selection through consultation' was resorted to in

the first three instances of succession during the period of

the rightly Guided Caliphs (al-Khulafa' al-Rashidun) through

the following process :

1. Selection by the leaders of the umma and then baiah

(oath of allegiance or general acclamation) by the community,

as was done in the case of the first Caliph, Abu Bakar. He

took the title Khalif al Rasul Allah (successor of the

30. Albert Hourani, Arabic Thouoht in the Liberal Age 1798-~ (London, 1970), p. 4.

50

Prophet of God) to distinguish it from what might be mistaken

for Khalif al Allah (successor of God.)

2. Nomination of a successor by the retiring Caliph in

consultation with the leaders of the community and then

baia'h by the general community. This was done in the case

of the second Caliph, Omar, who was nominated to be Caliph by

the ~iling Abu Bakar after consulting the prominent

Companions of the Prophet.

3. 'Nomination by the Caliph of a council which was to

select the new Caliph from among its members, followed by a

general bai' ah . This was done in the case of the third

Caliph Othman, who was chosen over Ali by four members of the

six member council nominated by the fatally wounded Omar. 3l

4. Shortly after Othman's murder and the ensuing chaos,

Ali, having lost his first bid for Caliphate, emerged as the

most obvious candidate for the successor and was persuaded by

some of the leaders of the ~ to accept

prevent further turmoil. 32

in order to

These modes of succession have acquired a special

significance in the development of Islamic political and

constitutional theory. They have established the general

principle of selection (ikhtiyar) of the head of state, which

has become a major precedent and a basic constitutional

31. Amir Hasan Siddiqi, The Origins and Development of Muslim Institutions (Karachi, 1962), pp. 240-42.

32. M·.A. Shaban, Islamic History; A New Interpretation, (Cambridge, 1971), Vol. I,p. 71.

51

principle of the Islamic state. As one scholar has remarked,

"this principle has become the cornerstone for the edifice of

thought developed by orthodox Muslim jurists, reformers, and

activists about the constitutional basis of the Islamic state

and transmission of political sovereignty.33

The classical Sunni theory of Caliphate, which underpins

. theories of sovereignty, authority, and government has been

summarized by many scholars. One of them has commented:

"Sovereignty belongs to God; authority is vested in the

kcaliph as the vice-regent of the Prophet, the messenger of

Allah. It is the duty of the Caliph to implement the

Sharia, to defend the faith against heresy, and the faithful

against attack, and to ensure their ability to live by the

prescription of the Sharia and thus to attain happiness in

this wprld and in the hereafter. ,,34

There is a consensus among the scholars that during the

period of the Rashidun, the Caliph fulfilled the functions of

political leaders, administrator, interpreter of the law, and

judge, and adhered to the dictates of the Our'an and the

Sunna whenever possible. The caliphs followed the Prophet's

practice of consulting Jama'at al-Shura (consultative group)

from among the principal companions and assigned specific

duties to its members. The Shura group was limited mainly to

33. Faksh, n .. 3, p. 9.

34. E. I . J . Rosenthal, Islam in the Modern National State, (Cambridge, 1965), pp. 14-15.

52

the leading members of al Muhajirun and al Ansar, who were

looked upon as the natural representatives of the whole of

Arabia.

In matters of legislation, the Caliph, unlike the

Prophet, was no transmitter of divine law, for revelation and

prophetic traditions ended with the death of the Prophet.

However, since the Four Rightly Guided Caliphs were among the

closest Companions of the Prophet, they knew the Our'an, the

Sunna, and the interpretation of these rules better than

anybody el se . Consequently, they were entrusted with the

formulation of certain laws covering areas where the Our'an

and the Sunna were either too general or silent. Such law

were made in accordance with Islamic Sharia and in

consultation with the members of the Shura. 35

As to the administration of justice, it had been

separated from the executive and was entrusted to gadis

(judges) appointed by the Caliph in consultation with the

Shura members. During the time of the first Caliph, Abu

Bakar, he and his administrative officers acted as gadis.

However, as the state administration became more diversified

and better established dur{ng the rule of the second Caliph,

Omar, judiciary was separated from other state

administration. Islamic courts of justice were established

and full time judges were appointed in the provinces and

35. Muhammad Din al-Rayis, Islasm and the Caliphate in the Modern Period (Beirut, 1974), also, Mahmud Shaltut, Islam: Ideology and Law, (Cairo, 1964).

53

rules of judicial procedure delineated. 36 Since the law

applied by. the judges is divine law, it has become

established practice that only those men who are well versed

in Ouranic learning and the traditions of the Prophet and who

possess high moral character and good judgement can be

appointed by the Caliph after consulting member of the Shura.

In summary, it appears that during the period of the

Rightly Guided Caliphs (632-661 A.D.), Muslim political

institutions developed along certain constitutional

principles that found their origin in the general stipulation

of the Our'an and the Sunna and in the general practices and

needs of the time. It is true that this formative period had

been marred by political strife and violence as witnessed by

three civil wars (apostasy wars in Abu Bakar's time, the

rebellion of the army of Egypt that led to the assassination

of Othman; and the wars between Ali and the Umayyads) and the

violent death of three out of the four Rashidun Caliphs.

Notwithstanding these events, certain basic institutional

developments had taken place during this period. The

institution of the Caliphate, the Shura and the rule of

Sharia constituted some of the essential characteristics of

the Islamic state. 3 ? Indeed, Sunni Muslims considered the

36. Qureshi, n. 23, pp. 48-50.

37. Mahmud A.. Faksh, "Basic Characteristic of an Islamic state", Journal of South Asian and Middle Eastern Studies (Villanova, Pa, U.S.A.), Vol. 5, (Winter 1981), pp. 3-16.

54

thirty year period (6~2-661) of the Rightly Guided Caliphs to

be the period of pure Islamic rule where Islamic principles

of government were realized. As such, it became the ideal

sources of their rulings regarding what a true Islamic state

ought to be.

With the advent of the Umayyads (661-750), the Caliphate

became a dynastic succession confined to Banu Umayyah (The

House of the Umayyads), another house of Quraysh. Indeed the

Umayyads were empire builders who changed the nature of the

. Caliphate from a religio-political leadership based on the

consent of the umma to a dynastic imperial-administrative

leadership. Thus many Orthodox Muslim thinkers and historian

believed that the Caliphate fell short of the standards of a

true Islamic state and became an empire run much less in the

traditions of Islam than in the traditions of imperial

rule. 38 Now the Caliph had to come from the house that had

won political power, and that would be so until political

power was wrested from it.

The principle of selection of the Caliph came to an end.

Furthermore, the composition of the Shura altered

substantially under the Ummayds. It no longer represented

the collective wisdom and unity of the Muslim community as

reflected in the unity of its leader. The Shura was confined

to members of the Caliphal family and their close

38. Erwin J. Rosenthal, Political Thought in Medieval Islam (Cambridge, 1958), p. 33.

55

associates. 39

The Umayyad dynasty was violently overthrown by another

clan of Qurayash, Banu aI-Abbas, who founded the Abbasid

dynasty (750-1258) The Abbasids came to power with broad

support from both Arab and non-Arab elements. In fact many

ethinic groups, mainly persians, had suffered varying degrees

of socio-political discrimination under the previous regimes

due to their status of mawali (clients). 40 Al though the

abassid regimes campaigned the Islamization movement, as

reflected in the modification and systamalization of Shari a

law, and the development of various Islamic institutions, the

ruling institutions were developed along the line of Persian

imperial tradition. In fact, the Abbasids came increasingly

under the influence of non-Arab elements - first Iranians an

then' Turks who promoted monarchical practices as

ostentatious court ceremonies and central administrative

organi'zation. Persians officials staffed the bureaucracy to

the highest levels, serving as ministers (wazir), and

introduced grand tradition of monarchial, pre-Islamic Persia.

These officials promoted the image of the Caliph as a remote

figure enthroned above his subjects, with his powers divinely

buttressed. 41 Like the Umayyads, the Abbasids did away with

39. See, Jurji Zaiden, Umayyads and Abbasids (Oxford, 1913).

40. See, W. Montgomery Watt, Islam and the Integration of Society (London, 1961), pp. 151-154.

41.

'-

C. E. Boseworth, "The Historical Civilization", in R.M. Savory, Islamic Civilization (Cambridge,

56

Background of Islamic ed., Introduction to

1976), p. 20.

, 'I f h d't ,42 the pr~nc~p e 0 ere ~ ary success~on,

In matter of legislation, a new development took place

during the Abbasid regime. The function of legislation, that

had earlier been assumed by the rightly guided caliphs in

consultation with the leaders of the ummah, was now

undertaken by the learned theological scholars the ulama.

This gave the ulama a special role in the Muslim empire which

they have continued to exercise in varying degrees. 43

By the middle of the tenth century, political

fragmentation and weakening of the Abbasid Caliphate was

setting in and "the Caliph was reduced to the status of a

dejure monarch, while all the defacto power was in the hands

of others. ,,44 The impotent claiphs first came under the

control of Iraman shiite amirs and later, in the eleventh

century, under the Turkish sunni amirs. At the same time,

the Iranian provinces had broken away from the empire. The

shii'te Fatimide ruled over Egypt and Syria, and Spain

remained independent under a rival dynasty of Umayyad

caliphs. Thus, the Abbasid caliphate had become an empty,

shell with no real power, and was finally destroyed by the

Mongols in 1258. All these development shattered the

principle of the indivisibility of the caliphate and the

42. Faksh, n. 3, p. 13.

43. See, Nikki R. Keddie, ed., Scholars. Saints and Sufis. Muslim R¢ligious Institutions in the Middle East Since 1500 (Berkeley, 1972).

44. Qureshi, n. 23, p. 199.

57

political unity of Ummah. This led some Sunni Muslim .

. urists to rationalize the admissibility of the practice in an

effort to remove the tension between theory and political

realities. 45 The caliphate was later restored in Egypt as an

office with only formal ceremonial powers, and was

transferred to the ottoman sultans (or more probably assumed

by them) in 1517, and finally abolished by the revolutionary

Turkish government in 1924.

THE IMAMATE

The Shii doctrine of the Imamate differs radically from

the Sunni·version, since the Shii believe that there would

always be an Imam whose functions are, broadly, to guide the

community and to preserve and interpret God's law. The first

Imam, Ali, was designated by the Prophet to be his successor,

and successive Imams similarly designa.ted their successors

during their lifetime. Since the designation was the result

of divine inspiration the Imams were effectively designated

by God and were charged by God to carry out all the spiritual

and temporal functions of the Prophet, save that of prophecy.

The Shii hold that the Imams are sinless and inifallible and

that it is incumbent upon all men to obey them, for their

orders and prohibitions are Allah's orders and

prohibitions. 46

45. See, the writings, especially of Al-Mawardi, Al-Ghazali, Ibn Jamma, Ibn Taymiyya and Al-Farabi.

46. Muhammad Riza al Muzaffar, The Faith of Shi' a Islam, (London, 1982), p. 32.

58

The line of designated Imams came to an abrupt end in

874 A.D., when the Twelfth Imam, Abu al Qasim Muhanunad' Ibn

Hasan disappeared. Shii' doctrine holds that he went into

occultation but that he is still mysteriously present as Imam

aI-Zaman (the Imam of the day, often described as the Hidden

Imam), thus fulfilling the requirement for the permanent

presence of the Imam. He will, at the appointed time, return

as Mahdi to bring salvation to the earth.

Though the brief sununary of Shii doctrine of Imamate may

not, at first sight, appear to have much to do w~th concepts

of state government and authority, but this would be a facile

conclusion, partly because Shiism was originally "a political

legitimist movement, which held that the headship of the

conununity belonged to Ali and his descendants, ,,47 and partly

because this doctrine underpins, and is modified in response'

to, later practica,l developments in much the same manner as

occurred in Sunni Islam. They, therefore, had no real need

to develop a faulty articulated constitutional theory

justifying reality in acceptable doctrinal terms.

Indeed, apart from the short-lived Fatimid dynasty, the

Shii' held little power until the establishment of the

Safavid dynasty in Iran and its adoption of Shiism in the

sixteenth century, long after the occultation.

The above description of relationship between Islam and

47. Lambton, n. 15, p. 219,

59

state system remains valid, even now at theoretical level.

That the Caliphate or Imamate exists for the implementation

of Sharia, remains theoretical maxim. In reality the ruling

institution, at many points, pursuing the supreme end of

their own power, attempt to make Islamic ideation subservient

to this. The most notorious example of the manipulation of

religious ideas for political purposes in Islamic history is

the Mihnah or Inquisition from 833 A.D. to 849 A.D, when the

government tried to make all judges and similar officials

accept the doctrine that the Qur'an was something created by

God and not His word or speech, something· that belonged

eternally to His Being. The usual accounts of this deal

solely with the ideational aspect, but a perusal of the

general history of the period shows that through the policy

of Inquisition the Abbasid government aimed at wooing the

moderate Shiite groups. The policy was later abandoned with

the realization that they were not gaining Shiite support to

an appreciable extent and were forfeiting some of the support

of the theologians and of the masses who followed them. 48

The Abbasid Caliphs controlled not merely the legal

profes~ion but also the historians. The early history of

Islam was rewritten to glorify the ancestors of the Abbasids

and to defame those of the Umayyads. The 'Abbasids' version

became the standard one of many events, and other versions

were suppres sed, perhaps not so much by deliberate

48. Watt, n.21, pp. 82-89.

60

exclusion as by falling into desuetude.

Not only the Abbasid Caliphs but many other rulers tried

to manipulate religious ideas in order to buttress their

rule. This meant, in effect, that they had to come to some

sort of understanding with the scholar-jurists or ·the

'official' ulama. The understanding usually seems to have

been to the effect that the ulama were allowed complete

control of certain spheres of life (such as, theological

dogma- and the legal foundation of the social structure),

provided they gave the former a free hand elsewhere and in

general supported him. Historically, the ulama, especially

in the Sunni Islamic world, has rendered two kinds of

services to the ruler - first the recognition as legitimate

ruler " given formally in the ceremony of bay' a (investiture)

and justified in terms of one or other' of the theories of

authority; secondly, the maintenance of a recognized system

of law, through which the fabric of an ordered society could

be preserved, and the arbitrary power of officials over

subj ects be restrained. 49 In return the official 'ulama'

were/are rewarded with financial benefits, salaries, fees and

in .some places control of great wagfs (religious endowments) .

The history of Shii Islam has also not been much

different' from the Sunni Islam in this regard. Despite

Shii's (Twelver) strict insistance "on the illegitimacy of

49. See, N, Itzkowitz, Tradition, (New York,

61

The Ottoman 1972) .

Empire and Islamic

secular authority" a section of higher Shii Ulama had always

provided an element of Islamic legitimacy to the institution

of monarchy, right from Safavid to Pahalavi dynasties in

Iran. This will be more fully elaborated in chapter five.

Since the Abbasid period, the Sharia had been regarded

by all Muslim dynasties as the only legal system. But, in

fact, there had usually- been a duality in the judicial

process. The military, economic and administrative

necessities forced the Muslim ruler or dynasty to introduce

or to sanction variety of rules, codes and penalties that

conflicted with the letter of the Sharia. The best example

of this duality of the process is the codification of 'Kanun-

namah' during the Ottoman empire. The gadis administered

Kanun as well as Sharia law in their courts, the muftis

issued fatwas (legal rulings) authorizing those provisions of

the Kanun which were not derived from the Sharia although not

contrary to it, above them an appeal lay to the Sultan or his

governors, who dealt in their divans with cases involving the

security of the state or petitions against officials in

breach of the Kanun. 50 Secondly, the Sharia is supposed to

supercede all forms of customary law (ada'). However the

nece~sities of administration often came into conflict with

their ideals, and the officers of the law, more often, found

it more equitable and easier to accept ingrained local

usages, though they might run counter to the prescriptions of

50. Albert Hourani, Islam in European Thought (Cambridge, 1991), p. 151-2.

62

the Sharia. Thus, the practice of the law courts in every

region was marked by more or less adaptation to the customs

of the country.51

The theoretical unity of the Umrna was never more than a

point fiction. It was riven with dissension and separatist

movements from very early stage: the Khawarij (secceders)

movement had its origins in the reign of Uthman, the third

Caliph; the civil war between Ali, the fourth Caliph, and

Mu' awiya, which culminated in the establ ishment of the

Umayyad dynasty and the basic division between Sunni and

Shii' broke out in 656 AD; the foundation of the short lived

Zubairid state (684-92 AD) were laid in 680 AD, and the

emergence of semi-independent or independent dynasties was a

almost continuous process. The latter process was an

inevitable result of the need to carve up the expanding

Muslim empire into provinces for administrative purposes and

was, perhaps accelerated by the practice of recognizing

hereditary governorships of individual provinces, first

established in Tunisia towards the end of the eight century.

It should, however, be noted that although this practice was

forced upon the Caliph by circumstances and although the

power of the dynastic 'war lords', was based upon military

force alone, in most cases the lat ter continued to be

formally appointed or recognized by the Caliph, thus

51. H.A.R. Gibb and Harold Bowen, Islamic Society and the West, (London, 1969), Vol. I, p. 119.

63

maintaining the fiction of unity and providing legitimacy for

their authority. However, there was, in fact,

or ideological basis to their position with

abolition of the office by the Mongol in 1258,

and temporal authority were actually, if

no ideational

the effective

the spiritual

not formally

separated and the unity of the Umrna in political terms could

no longer be substantiated. Territorial plurality had become

more or less an accepted fact of life.

64