The Principles of STATE and GOVERNMENT in ISLAM
By Muhammad Asad
Chapters: The Issue before Us | Terminology and Historical Precedent | Government by Consent and Council | Relationship between Executive and Legislature | The Citizens and the Government | Conclusion |
The Source of State Sovereignty
This brings us to the question (interesting from the viewpoint of political philosophy) of the sources from which an Islamic state is supposed to derive its sovereignty: a question not nearly as "theoretical" as it might appear at first glance.
To be sure, the individual average citizen does not, as a rule, concern himself unduly with speculation as to the "sources of state sovereignty" so long as the institutions and the administrative procedure of the state have or seem to have a favorable effect on his personal mode of living and on the possibilities of his economic advancement. Nevertheless, no historian can deny that the moral values which the citizens attribute to their state are, in the long run, decisive for the survival of its spiritual authority and thus, ultimately, for the survival of social discipline in the widest sense of the word. No outward political forms, even the best of them, can achieve their objective by themselves. Their usefulness depends, in the last resort, on their spiritual contents; and if those contents are defective, the consequences may well be disastrous for the community. Thus, it is highly probable that the centuries-old lack of social discipline and civic spirit among the Muslim community is largely due to the confusion (in its own turn caused by a series of unfortunate historical developments) regarding the conceptual basis of the authority inherent in the state as such. This confusion might perhaps explain the meekness with which the Muslims have for centuries submitted to every kind of oppression and exploitation at the hands of unscrupulous rulers.
Obviously, the political climate of our time no longer favors such a meek submission to injustice. Under the influence of Western political theories, more and more educated Muslims have begun to assert that ultimate sovereignty belongs to "the people," whose will alone must be decisive in the formation of all state
institutions as well as hi the scope of current legislation. Even among those modern Muslims who accept in principle the idea of an Islamic state, there are an appreciable number who claim absolute sovereignty for the "united will of the people" (ijma1) on the basis of the Prophet's saying,
"Never will God make my community agree on a wrong course." (18)
Many Muslims conclude from this Tradition that whatever the community—or at least the majority within it—agrees upon must, under all circumstances, be the right course. (19) But this conclusion is entirely unjustified. The above saying of the Prophet is negative, not positive. He meant exactly what he said: namely, that never would all Muslims pursue a wrong course, and that always there would be persons or groups among them who would disagree with the erring ones and would insist on taking the right course.
Therefore, whenever we speak of the "will of the people" in the context of Islamic political thought, we should be careful to avoid what a popular saying describes as "emptying the child with the bath"—in other words, we should not substitute for the un-Islamic autocracy of our past centuries the equally un-Islamic concept of unrestricted sovereignty on the part of the community as a whole.
Inasmuch as the legitimacy of an Islamic state arises from the people's voluntary agreement on a particular ideology and is, moreover, conditional upon their consent to the manner in which the state is administered, one might be tempted to say that "sovereignty rests with the people"; but inasmuch as in a consciously Islamic society the people's consent to a particular method of government and a particular scheme of sociopolitical cooperation is but a result of their having accepted Islam as a Divine Ordinance, there can be no question of their being endowed with sovereignty in their own right. The Quran says :
Say: O God, Lord of Sovereignty! Thou givest sovereignty to whom Thou pleasest, and takest away sovereignty from whom Thou pleasest. Thou exaltest whom Thou pleasest, and abasest whom Thou pleasest. In Thy hand is all good: for Thou hast power over all things. (20)
Thus, the real source of all sovereignty is the will of God as manifested in the ordinances of the shari'ah. The power of the Muslim community is of a vicarious kind, being held, as it were, in trust from God; and so the Islamic state — which, as we have seen, owes its existence to the will of the people and is subject to control by them — derives its sovereignty, ultimately, from God. If it conforms to the shar'f conditions on which I have dwelt in the preceding pages, it has a claim to the allegiance of its citizens in consonance with the words of the Prophet :
"He who obeys me, obeys God; and he who disobeys me, disobeys God. And he who obeys the amir [i.e., the head of the state], obeys me; and he who disobeys the amir, disobeys me." (21) Thus, when the majority of the community have decided to entrust the government to a particular leader, every Muslim citizen must consider himself morally bound by that decision even if it goes against his personal preferences.
(18) At-Tirmidhi, on the authority of 'Abd Allah ibn 'Umar.
(19) This conclusion is analogous to the ancient Roman saying, vox populi, vox Dei ("the voice of the people is the voice of God"), which finds an echo in all Western concepts of democracy.
(20) Quran 3:26.
(21) Al-Bukhari and Muslim, on the authority of Abu Hurayrah.
The Head of the State
Since the purpose of an Islamic state is not "self-determination" for a racial or cultural entity but the establishment of Islamic Law as a practical proposition in man's affairs, it is obvious that only a person who believes in the Divine origin of that Law—in a word, a Muslim—may be entrusted with the office of head of the state. Just as there can be no fully Islamic life without an Islamic state, no state can be termed truly Islamic unless it is administered by people who can be supposed to submit willingly to the Divine Law of Islam.
This principle would naturally cause no difficulty in countries populated entirely or almost entirely by Muslims (as, for instance, Saudi Arabia and Afghanistan). But in those Muslim countries which contain appreciable non-Muslim minorities—and the majority of Muslim countries fall within this category—the above demand may cause some apprehension inasmuch as it would seem to imply a discrimination between Muslim and non-Muslim citizens. To be sure, this fear of discrimination relates only to the theory and not to the practice of government: for in countries where Muslims form an overwhelming majority (and only these can justifiably be termed "Muslim countries"), the leadership of the state automatically accrues to them. Nevertheless, in the context of modern political thought, which is so strongly influenced by Western concepts and prejudices, even a theoretical discrimination on the ground of religion might be unpalatable to many Muslims, not to mention the non-Muslim minorities living in their midst. One must, therefore, frankly admit from the outset that without a certain amount of differentiation between Muslim and non-Muslim there can be no question of our ever having an Islamic state or states in the sense envisaged in Qur*an and Sunnah. Consequently, any prevarication on this subject is utterly dishonest with regard to both the non-Muslim world around us and the Muslim community itself.
This does not and cannot mean that we should discriminate against non-Muslim citizens in the ordinary spheres of life. On the contrary, they must be accorded all the freedom and protection which a Muslim citizen can legitimately claim: only they may not be entrusted with the key position of leadership. One cannot escape the fact that no non-Muslim citizen — however great his personal integrity and his loyalty to the state — could, on psychological grounds, ever be supposed to work wholeheartedly for the ideological objectives of Islam; nor, in fairness, could such a demand be made of him. On the other hand, no ideological organization (whether based on religious or other doctrines) can afford to entrust the direction of its affairs to persons not professing its ideology. Is it, for instance, conceivable that a non-Communist could be given a political key position — not to speak of supreme leadership of the state — in Soviet Russia? Obviously not, and logically so: for as long as communism supplies the ideological basis of the state, only persons who identify themselves unreservedly with its aims can be relied upon to translate those aims into terms of administrative policy. The above finding, taken in conjunction with the nass ordinance,
"Obey God and obey the Apostle and those in authority from among you," leads us inescapably to the conclusion that those who are to wield supreme authority in the Islamic state and are to be responsible for the shaping of its policies should always be Muslims: and this not merely de facto, by virtue of their majority in the country, but also de jure, by virtue of a constitutional enactment. If we are resolved to make Islam the dominant factor in our lives, we must have the moral courage to declare openly that we are not prepared to endanger our future by falling into line with the demands of that spurious "liberalism" which refuses to attribute any importance to men's religious convictions; and that, on the contrary, the beliefs a man holds are far more important to us than the mere accident of his having been born or naturalized in our country.
It is obvious, then, that the head of an Islamic state must be a Muslim. In consonance with the principle enunciated in the Quran,
"Behold, the noblest of you before God is the most righteous of you," (22) he must be chosen on merit alone; and this precludes any considerations of race, family origin, or previous social status. The Prophet said:
"Hear and obey, even though your amir be an Abyssinian slave with crinkly hair." (28)
Apart from the stipulation that the prospective amir (23) be a Muslim and the "most righteous of you" — which obviously implies that he must be mature, wise, and superior in character — the shari'ah does not specify any further conditions for eligibility to this office, nor does it lay down any particular mode of election, or circumscribe the extent of the electorate. Consequently, these details are to be devised by the community in accordance with its best interests and the exigencies of the time. The same applies to the question of the period during which the amir shall hold office. It is conceivable that a definite number of years may be fixed for this purpose (possibly with the right to ree'lection); alternatively, the amir's, tenure of office may be subject to termination when the incumbent reaches a certain age limit, provided he discharges his duties loyally and efficiently; or, as a third alternative, the tenure of office may be for life, with the same proviso as above — that is to say, the amir would have to relinquish his office only if and when it becomes evident that he does not loyally perform his duties or that he is no longer able to maintain efficiency owing to bodily ill-health or mental debility. In this wide latitude regarding the tenure of the amir's office we see another illustration of the great flexibility inherent in the political law of Quran and Sunnah.
The Principle of Consultation
As we have seen, the shariah refrains deliberately from providing detailed regulations for all the manifold, changing requirements of our social existence. The need for continuous, temporal legislation is, therefore, self-evident. In an Islamic state, this legislation would relate to the many problems of administration not touched upon by the sharFah at all, as well as the problems with regard to which the shari'ah has provided general principles but no detailed laws. In either instance it is up to the community to evolve the relevant, detailed legislation through an exercise of independent reasoning (ijtihad) in consonance with the spirit of Islamic Law and the best interests of the nation. It goes without saying that in matters affecting the communal side of our life no legislative ijtihadi decisions can possibly be left to the discretion of individuals: they must be based on a definite consensus (ijmac) of the whole community (which, of course, does not preclude the community's agreement, in any matter under consideration, on an ijtihadi finding arrived at previously by an individual scholar or a group of scholars).
(22) Quran 49:13.
(23) Al-Bukharl, on the authority of Anas.
(24) I am using here the designation amir (which may be translated as "commander," "leader," or "holder of authority") for the sake of convenience alone. Although it is one of the two designations used most frequently by the Prophet when referring to the head of the community (the other being imam), the Muslims are under no shar'i obligation to adopt this title in preference to any other.
Who is to enact this temporal, communal legislation? Obviously, the community as a whole cannot be expected to sit together and to legislate; and so there must be a person or a limited number of persons to whom the community could delegate its legislative powers and whose decisions would be binding on all. The question is, thus, to what person or persons should this task be entrusted?
Many Muslims are of the opinion—seemingly justified by the example of the Right-Guided Caliphate—that all powers pertaining to temporal, non-short legislation should be vested in one person, namely, the amir: for, having been freely elected by the community, he may be deemed to represent the community not only in executive but also in legislative concerns. However, many other Muslims hold the view—also supported by historical evidence—that so great an accumulation of power in one man's hands is always fraught with the gravest of risks. For one thing, an individual, however brilliant, righteous and well-intentioned, may easily commit mistakes of judgment owing to personal bias in this or that matter; whereas, on the other hand, in an assembly composed of many persons, the very existence of contrasting opinions — and the ensuing debate on these opinions — tends to illuminate every problem from various angles : thus, the danger of individual bias obtruding itself on legislation is, if not eliminated, at least greatly reduced. Nor is this all. Possession of absolute power often corrupts its possessor and tempts him to abuse it, consciously or unconsciously, in his own interest or in that of his partisans. In accordance with this view, the legislative powers of the state should be vested in a body of legislators whom the community would elect for this specific purpose.
It would thus appear that the Muslims are free to make their choice between an autocratic rule exercised by the amir on the one hand, and a rule by council (or assembly, or parliament, or whatever name we may give to it), on the other. But when we examine this question more closely, we find that in reality the apparent freedom of choice between these two alternatives is nonexistent, the issue having been decided most categorically by the Quranic ordinance,
"Their [the Believers'] communal business [amr] is to be [transacted in] consultation among themselves." (25)
This nass injunction must be regarded as the fundamental, operative clause of all Islamic thought relating to statecraft. It is so comprehensive that it reaches out into almost every department of political life, and it is so self-expressive and unequivocal that no attempt at arbitrary interpretation can change its purport. The word amr in this injunction refers to all affairs of a communal nature and therefore also to the manner in which the government of an Islamic state is to be established: that is, to the elective principle underlying all governmental authority. Beyond that, the phrase amruhum shura baynahum — literally, "their communal business is consultation among themselves"—makes the transaction of all political business not only consequent upon, but synonymous with, consultation: which means that the legislative powers of the state must be vested in an assembly chosen by the community specifically for this purpose.
(25) Quran 42: 38.
Elective Assembly
It is evident from the context that the expression "among themselves" in the Quranic ordinance under consideration refers to the whole community: hence, the legislative assembly—or, to use a term well known throughout Muslim history, the majlis ash-shura —must be truly representative of the entire community, both men and women. Such a representative character can be achieved only through free and general elections: therefore, the members of the majlis must be elected by means of the widest possible suffrage, including both men and women. The extent of that suffrage and the qualifications to be demanded of the voters—like those of the candidates—are details regarding which neither Quran nor Sunnah provides any clear-cut legislation, and which, consequently, are left to the discretion of the community in the light of the requirements of the time.
One could, of course, argue that, instead of being elected— directly or indirectly—by the whole community, the majlis might be sufficiently representative if its members were simply nominated by the amir—because, owing as he does his position and authority to a popular mandate, he might be deemed to be an embodiment of the community's will. But whatever support may be invoked for this view from Muslim history, its weakness at once becomes apparent if we bear in mind that the manner in which a legislative body comes into being must be counted among the most important affairs of state; and if we accept the Divine dictum that all our communal affairs are to be transacted on the basis of popular consultation, we cannot escape the conclusion that the process of constituting the majlis must be, in itself, an outcome of "consultation" in the widest and most direct sense of the word. In complex societies like ours, such a consultation can take no form other than that of elections during which the merits of the respective candidates are publicly discussed and the votes cast accordingly. The method of elections — direct or indirect, transferable or non-transferable vote, regional or proportional representation, and so forth — has not been laid down in the shariah and is, therefore, a matter for communal decision.
One important point, however, has been clearly stipulated by the Prophet with regard to all public appointments and, thus, with regard to elective appointments as well: the prohibition of self-canvassing. The Prophet said :
"Do not solicit an office of authority [imarah], for if it is given to you for the asking, you will be left therein to your own resources, while, if it is given to you without asking, you will be aided [by God] therein." (26) In the light of the teachings of Islam, the Prophet obviously implied that in order to be adequate to one's responsibilities, one must be aided therein by God; on the other hand, lack of Divine aid must necessarily result in failure, however great one's personal resources. To make his point clear, the Prophet consistently refused to make any administrative appointment whenever the person concerned asked for it. For instance, when he was approached by one of his Companions with the request for a government post, he answered emphatically:
"By God, we do not appoint to such work anyone who asks for it, nor anyone who covets it." (27)
Thus, it would be in full keeping with the spirit of the shariah if the constitution of an Islamic state would explicitly declare that self-canvassing by any person desirous of being appointed to an administrative post (including that of head of the state) or of being elected to a representative assembly shall automatically disqualify that person from being elected or appointed. Such an enactment would immediately remove a weighty objection on the part of many contemporary Muslims to a "government by council." At present anyone possessing local influence or wealth may—regardless of his real worth—secure his election to a legislative assembly by exercising a certain amount of "persuasion" on his electors; but under the above-mentioned enactment, all such attempts at direct persuasion would lead to immediate disqualification. It would, of course, still be possible for an influential but otherwise worthless candidate to avoid the outward appearance of self-canvassing by making use of a party organization or of individual middlemen who would make propaganda for him among the public. However, the fact that the candidate himself would be debarred from delivering electioneering speeches or from otherwise addressing the electorate in his own behalf would make the task extremely difficult: with the result that, as a rule, only a person enjoying well-deserved and unsolicited esteem among the electorate would have a genuine chance of success.
(26) Al-Bukhari and Muslim, on the authority of Abd ar-Rahman ibn Samurah.
(27) Ibid., on the authority of Abu Musa.
Differences of Opinion
It has already been mentioned that the legislative work of the majtts ash-shura will relate only to matters of public concern, and more particularly to matters which have not been regulated in terms of law by the nusus of Quran and Sunnah. Whenever the interests of the community call for a legislative enactment, the majlis must first look into the context of the shari'ah for a guiding general principle of law bearing on the problem under consideration. If such a general principle is forthcoming, it falls within the scope of the legislature to draw up an enactment in consonance with the established shar'i principle. But very often the majlis will be confronted with problems on which the shariah is entirely silent: problems, that is, for which neither detailed rulings nor even a general principle have been formulated in the nusus. In such instances it is for the majtts to devise the requisite legislation, taking only the spirit of Islam and the community's welfare into consideration,
All this presupposes, of course, that the members of the majlis are not only possessed of a good working knowledge of the nusus of Quran and Sunnah, but are also people of understanding and insight (ulu 'l-albab), alive to the sociological requirements of the community and worldly affairs in general: in other words, education and maturity are indispensable qualifications for election to the majlis ash-shura.
But even if the members of the majlis possess these qualifications, it is highly improbable that they will always view a given social situation in exactly the same light and, consequently, reach full unanimity as to the legislative measures required to meet that situation. This diversity of views is only natural, for all human reasoning is a highly subjective process and can never be fully dissociated from the thinker's temperamental leanings, habits, social background, and past experiences: in brief, from all the manifold influences which act together in the shaping of what we describe as a "human personality," However, true progress is not possible without such a variety of opinions, for it is only through the friction of variously constituted intellects and through the stimulating effect they have on one another that social problems are gradually clarified and thus brought within the range of solution.
It is this that the Prophet had in mind when he said :
"The differences of opinion among the learned within my community are [a sign of] God's grace." (28) We should not, therefore, be perturbed by the certain expectation that the decisions of the majlis ash-shura in an Islamic state — like those of other legislative assemblies the world over — will hardly ever be established through a unanimous vote. The only thing we may legitimately expect will be decisions obtained on the majority principle—preferably a simple majority in respect of ordinary legislation, and perhaps a two-thirds majority in questions of exceptional importance, such as a demand for deposition of the government (to be discussed later), amendment of the constitution, declaration of war, and so forth.
(28) As-Suyuti, Al-Jami' as-saghir.
In view of the obvious shortcomings of most of the so-called "democratic" systems prevailing in the modern West, some contemporary Muslims dislike the idea of making the legislative activities in an Islamic state dependent on a mere counting of votes. The bare fact, so they argue, that a legislative measure has been supported by a majority does not necessarily imply that it is a "right" measure: for it is always possible that the majority, however large and even well-intentioned, is on occasion mistaken, while the minority—in spite of its being a minority—is right.
The objective truth of this view cannot be disputed. The human mind is extremely fallible; moreover, men do not always follow the promptings of right and equity; and the history of the world is full of instances of wrong decisions made by a foolish or selfish majority in spite of the warnings of a wiser minority. Nevertheless, it is difficult to see what alternative there could be, within a legislative body, to the principle of majority decisions. Who is to establish, from case to case, whether the majority or the minority is right? Whose opinion shall prevail? One might, of course, suggest that the final verdict should rest with the amir; but—quite apart from the fact that the granting of such absolute power to any one person militates against the principle of amruhum shura baynahum so strongly insisted upon by the Law of Islam—is it not equally possible that the amir is mistaken, while the view of the majority is right? Is there any Divine guarantee attached to his views? To this, the critics of the majority principle usually give the answer:
"When we are about to elect the amir, we must see to it that the wisest and most righteous person is chosen; and the very fact of his having been chosen on the grounds of his superior wisdom and righteousness should be guarantee enough that his decisions will be right." Quite true: but is it not equally true that the Muslims are supposed to elect the majlis ash-shura on the basis of the wisdom and the righteousness attributable to each candidate? Is this not "guarantee enough" that the decisions arrived at by the majority of these legislators will always be correct? Of course not. In either instance — whether in that of the amir or of the majlis — "guarantee enough" can never be a substitute for perfect guarantee ; and this is, unfortunately, beyond human reach. The best we can hope for is that when an assembly composed of reasonable persons discusses a problem, the majority of them will finally agree upon a decision which in all probability will be right. It is for this reason that the Prophet strongly, and on many occasions, admonished the Muslims :
"Follow the largest group," (29) and,
"It is your duty to stand by the united community and the majority [al-'ammah]." (30)