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 |
Chapter IV
RELATIONSHIP BETWEEN EXECUTIVE AND LEGISLATURE
Interdependence of Functions
The principle of "consultation among themselves" underlying the creation of the maflis ash-shura naturally includes the amir among the legislators; for, having been elected by the community as head of the state, he must be regarded as its foremost representative in all matters pertaining to communal business. More than that: by virtue of his being the focal point of all amr in an Islamic polity, the amir cannot be merely an ordinary member of the majlis, but must be its leader, duty-bound to guide its activities and to preside —either personally or through a delegate—over its deliberations. This stipulation, implying as it does the idea that in a state subject to the authority of a Divine Law there can be no radical separation of the legislative and the executive phases of government, constitutes a most important, specifically Islamic contribution to political theory.
In the democratic states of the West, a sharply drawn division between legislature and executive is considered to be the only effective safeguard against a possible abuse of power by the executive. This Western principle of government has certain merits: for by according to the legislature the attribute of "sovereignty" and thus placing it in a position of control over the day-to-day working of the executive, the latter is undoubtedly held in check and prevented from exercising its power in an irresponsible manner. However, equally undoubtedly, the government as a whole—in both its executive and legislative aspects—is more often than not (and especially in times of national emergency, when executive decisions have to be rapid) greatly hampered by this radical separation of functions, and is thus obviously at a disadvantage vis-a-vis states governed autocratically.
Islam, as we know, is as uncompromisingly opposed to autocracy as any of the Western democratic polities could conceivably be: but in this, as in so many other matters, Islam follows a "middle way," avoiding the disadvantages of either of these systems and securing to the Muslim community the advantages of both. By integrating the executive and the legislative phases of government through the instrumentality of the amir (whose function as president of the legislative assembly has been made a necessary corollary of his executive function as head of state), we can fruitfully overcome that duality of power which in Europe and America so often places the executive and the legislature in opposition to one another, and at times makes parliamentary government unwieldy or even ineffectual. But this gain in efficiency (normally so characteristic of "totalitarian," autocratic governments) is, in an Islamic state, not achieved at the cost of relinquishing the principle of popular control over the activities of the government. Indeed, any possible tendency toward autocracy on the part of the executive is checked at the outset by the stipulation, amruhum shura baynahum, which means that the transaction of all governmental activities, executive as well as legislative, must be an outcome of consultation among the accredited representatives of the community.
In logical pursuance of this principle of interdependence, we must conclude that the decisions arrived at by the majlis ash-shura through a majority vote are not of a merely advisory character—to be accepted or rejected by the holders of executive power at their discretion—but are legally binding on them.
A Historical Analysis
We know that at the time of the four Right-Guided Caliphs there was no legislative assembly in the modern sense of this term. To be sure, those great Caliphs did consult the leaders of the community on all outstanding problems of policy; but neither were the persons thus consulted properly "elected" by the community for this purpose, nor did the Caliph feel himself bound in every instance to follow the advice tendered. He asked for advice, considered it on its merits, and thereupon made his decision in accordance with what he thought right—sometimes accepting the opinion of the majority, sometimes that of the minority, and sometimes overruling both. One might, therefore, be tempted to ask; If the Right-Guided Caliphs, who had been among the most intimate Companions of the Prophet, did not consider it necessary to have a properly elected council or to follow implicitly the advice of whatever council there was, how can anyone claim today (a) that the majlis ash-shiira of an Islamic state must be constituted on the basis of popular elections, and (b) that the legislation obtained in such a majlis is under all circumstances binding on the executive? It is comparatively easy to answer the first part of the above question.
When the first Caliph, Abu Bakr, was confronted with the necessity—dictated by the Quranic principle, amruhum shura baynahum—of having a council which would assist him in governing the state, he instinctively turned to an institution that was sanctioned by immemorial custom and had not been repudiated by the sharFah, namely, an assembly of tribal chiefs and leaders of clans. In the circumstances, the Caliph's choice was undoubtedly correct, for in spite of the considerable loosening of tribal ties brought about by Islam, those ties had not yet been discarded. The Arabian society of that time had preserved its tribal structure to a very large extent, and so the leaders of tribes and clans did in fact, if not in law, possess the authority to speak and act in the name of the groups they represented. The views on communal matters expressed by, say, the leader of the Banu Zuhrah clan of Quraysh or of the ansari tribe of Aws were almost always identical with the views held by all other members of those clans or tribes. Had the Caliph insisted on elections, it would invariably have been those very chieftains (most of whom had been Companions of the Prophet) whom the community would have designated as its representatives: hence, there was no need to call for elections. All that the Caliph had to do was to summon the outstanding Companions and tribal chiefs—and there was his majlis ash-shura, as representative of the community as it ever could have been under the conditions then prevailing. This structural peculiarity of Muslim society remained practically unchanged throughout the reign of the four Right-Guided Caliphs, with the result that none of them saw any reason for changing the method by which the council came into being.
However, modern Muslim society (like most other civilized societies) has long since outgrown the tribal mode of life, with the result that clan leadership has lost its erstwhile importance. Consequently, we have no longer any way of ascertaining the opinions of the community except by means of a popular vote. In .matters of outstanding importance, this vote may take the shape of a referendum; in matters of day-to-day legislation, nobody has as yet devised a better method than elections: that is, the free appointment by the community of a number of persons who would act as its representatives. This is so obvious that I would not have dwelt on it were it not for the fact that so many Muslims have not yet grasped the structural difference (a most far-reaching difference) between our present society and that which existed in the early days of Islam. Faced with conditions similar to ours, the Right-Guided Caliphs would certainly have reached political conclusions vastly different from those they reached thirteen centuries ago; in other words, they would have had their majlis elected through popular vote.
This finding applies not only to the method by which the majlis should come into being, but also to the terms of reference under which it would work and the position which it should occupy within the framework of a modern Islamic state—more specifically, to the question of whether or not the legislative decisions of the majlis should be binding on the executive.
It is historically established that the Prophet himself frequently called for and followed the advice of his Companions in matters of state, and this in obedience to the words of the Quran, "Take counsel with them in all communal business [amr] ; and when you have decided on a course of action, place your trust in God." (1) Some Muslim scholars conclude from the wording of this verse that the leader of the community, although obliged to take counsel, is nevertheless free to act thereupon in whatever way he deems fit; but the arbitrariness of this conclusion becomes obvious as soon as we recall that this Quran verse was revealed just before the Battle of Uhud — that is, on an occasion when the Prophet felt constrained, against his own better judgment, to defer to the advice of the majority of his Companions. He was definitely of the opinion — subsequently justified by events — that the Muslims should not meet the numerically superior army of the Meccan Quraysh in the open field, but should fall back behind the fortifications of Medina instead. In this view he was supported by several of his Companions; but as most of the others insisted on going forth and offering battle, he sorrowfully gave way to the will of the majority. The shar'i obligation on the part of the leader to follow the decisions of the majority of his council is further elucidated in a Tradition on the authority of the fourth Caliph, 'All, relating to the Quran verse we are now considering. When the Prophet was asked about the implications of the word 'azm (deciding upon a course of action) which occurs in this verse, he answered:
"[It means] taking counsel with knowledgeable people [ahl ar-ra'y] and following them therein." (2) To Abu Bakr and 'Umar, who often constituted what we would describe today as his "inner council," the Prophet once said:
"If you two agree on a counsel, I shall not dissent from you." (3)
(1) Quran 3: 159.
(2) Ibn Kathir, Tafsir (Cairo; 1343 A.H.), Vol. II, p. 277.
(3) Imam Ahmad ibn Hanbal, Musnad, on the authority of 'Abd ar-Rahman ibn Ghanam.
Nevertheless, it is not difficult to guess why the Right-Guided Caliphs occasionally deviated from this strict observance of the principle, amruhum shura baynahum. For one thing, the rapidly changing aspect of the Islamic Commonwealth (to which reference has been made in chapter ii) made it sometimes impossible to leave the final decision in matters of state to people who, however well-meaning and wise, could not be supposed to be currently informed about everything that was going on in the wide and continuously expanding realm. Furthermore, the Right-Guided Caliphs were fully aware that political consciousness among the general run of Muslims was still in its infancy and that, consequently, there was always a danger that political views might be colored by considerations of tribal interest; and so, although they established councils and called for advice whenever the need arose, they held themselves free to accept or to reject the advice of their consultants. Most probably this was the only course open to them at the time. Still, it is just possible that so unfettered a freedom of decision on the part of the head of the state was one of the factors contributing to the rapid decay of the Caliphate; for although it led to admirable results in the case of an exceedingly strong and farsighted personality like 'Umar, it brought the institution of the Caliphate itself into discredit whenever a weaker ruler committed a serious error of judgment. Might not, perhaps, the entire Muslim history have taken a different course if, for instance, 'Uthman had held himself bound (in the legal sense of the word) always to follow the decisions of a properly constituted majlis ash-shura?
Whatever answer may be given to this hypothetical question, we are certainly not justified to expect that every amir would possess the genius and the strength of purpose of an 'Umar. On the contrary, all history shows that such personalities are extremely rare exceptions, and that the vast majority of administrators, at all tunes and in all societies, are prone to commit grievous errors if left entirely to their own devices. Hence, they should not be left to their own devices, and should be allowed to govern only in consultation with the accredited representatives of the whole community: which is one of the classical lessons of history that no nation may neglect except at its own peril.
Executive Powers
Thus, we have come to the conclusion that an Islamic state must be governed by means of consultation : that is to say, by means of an intimate collaboration between the legislature and the executive (the leadership of both being vested in one and the same person, namely, the amir). But what is to be the technical relationship between these two branches of government? Does the principle according to which all government business must be an outcome of consultation (amruhum shura baynahum) place on the executive an obligation to submit every detail of day-to-day administration to the prior consent of the legislature? If this were so, no governmental machinery could ever work efficiently: a state of affairs that could not possibly have been countenanced by the shariah. It is, therefore, to the shariah that we must turn for an answer to this dilemma. And an answer is, indeed, forthcoming from the Quran itself.
We have already had occasion to consider the Quran verse that says, "Take counsel with them in all communal business; and when you have decided upon a course of action, place your trust in God." (4) From this verse we have concluded that the amir is under an obligation to accept the decisions of the majlis ash-shura as binding on him; but the phrase, "and when you have decided upon a course of action, place your trust in God," leads us to a further conclusion, Whenever the Quran or the Prophet speak of the necessity of tawakkul (placing one's trust in God), they invariably refer to actions that are not strictly circumscribed by the available nusus and call, therefore, for individual judgment as to the manner in which they are to be performed — in other words, they refer to actions that allow the person concerned a certain latitude of choice subject to the dictates of his conscience. With reference to the problem we are discussing here, this finding could be summed up thus: Although the amir is bound by the temporal legislation enacted by the majlis ash-shura and by its decisions on major questions of policy, the manner in which he translates those decisions and directives into terms of day-to-day administration is left to the discretion of the executive over which he presides; and although the majlis, on the other hand, is empowered to frame the temporal laws on the basis of which the country is to be governed, to decide the major policies which are to be pursued, and in a general way to supervise the activities of the government, it is not entitled to interfere with the day-to-day working of the executive. From this it follows that the amir must possess executive powers within the fullest meaning of these words. An office of head of state shorn of all real power and reduced to a mere figurehead—as, for example, that of the president of pre-Gaullist France or the queen of England—is obviously redundant from the viewpoint of the Quranic injunction which makes the Muslims' obedience to "those who hold authority" (ulu 'l-amr) a corollary of their obedience to God and His Apostle. (5)
(4) Quran 3: 159.
(5) SeeQuran 4: 59.