"The Centrality of Sharī‘ah to Government and Constitutionalism in Islam" in Constitutionalism in Islamic Countries: Between Upheaval and Continuity, eds. Rai

The Centrality of Sharī‘ah to Government and Constitutionalism in Islam

 

Khaled Abou El Fadl*

 

 

1. INTRODUCTION

 

Constitutionalism reflects embedded normative values that arise from evolved historical practices that are not easily transplanted outside their natural habitat. In many ways, constitutionalism must be practiced and not theorized.[1] Therefore, it is doubtful whether it is helpful to abstract the doctrines of constitutionalism from their remarkably diverse cultural and social contexts. When speaking of constitutionalism and Sharī‘ah, one must be concerned that not only are we dealing with idealistic abstractions but that we are falling prey to an anachronism.

 

This, however, does not invite to abandon all attempts at constructing a coherent discourse on constitutionalism and Sharī‘ah; it only requires to be mindful of the limits of abstractions that are not backed up by a history of cultural practice. Constitutionalism is a political tradition more than a theory of government. Constitutionalism gives expression to or appropriates normative values generated by a historical practice and tradition. But in the same way there are traditions of constitutionalism, there are also traditions of terror, tyranny, or personalized rule. Normativities generated by Islamic doctrines could possibly support or promote practices consistent with constitutionalism or tyranny. To the extent that Islamic doctrinal normativities legitimate or promote particular traditional practices, one can argue that these normativities could potentially support or undermine a constitutional tradition. Consequently, this article will focus on potentialities – i.e. the doctrinal aspects in Islamic political thought that could legitimate, promote, or subvert the emergence of a constitutional practice in Muslim cultures. These doctrinal potentialities exist in a dormant state until they are co-opted and directed by systematic thought supported by cumulative social practices. This article will focus on doctrinal potentialities or concepts constructed by the interpretive activity of Muslim scholars (primarily jurists), but will not focus on the socio-political practices in Islamic history. In addition, this article will not seek to identify contemporary efforts at systematic thought and practice that attempt to develop or give effect to these tradition-based potentialities.

 

2. THE NOTION OF CONSTITUTIONALISM AND MAJORITARIAN DEMOCRACY

 

There is no single form of constitutionalism, indeed there are many different theories explaining and justifying a variety of constitutional practices. In the broadest sense, constitutionalism connotes a political system in which there are limits imposed on the powers of the government, an adherence to the rule of law, and the protection of fundamental individual rights.[2] The powers of the government are limited not only by being subject to the law, but also by the imposition of institutional restraints on the discretion of the government in dealing with its citizens.[3] Furthermore, the rule of law mandates that the existence of recognizable and predictable rules enjoying legitimacy that are equally applicable to all members of society.[4] Individual rights require the affording of protections to the interests guarding the well-being and dignity of individuals, and that such interests be considered as entitlements and not mere privileges.[5] Perhaps the requirement of individual rights is the most difficult to justify conceptually, but every constitutional democracy in the contemporary age has recognized that individuals ought to be protected from capricious governmental actions, and that the citizenry is entitled to a basic level of well-being and dignity.[6] For instance, a state that habitually practices torture, summary executions, slavery, or indentured service against its citizenry cannot be described as a constitutionalist system.

 

The existence of a written constitution is not what creates a constitutional system. A political system could generate a written constitution, but not base or bind itself by such a document. In other words, the document could fail to appropriate or reflect the socio-political culture of a system and, therefore, such a document could be violated regularly, altered, or suspended on a regular basis. Furthermore, the constitutional document, itself, could fail to impose limits on the powers of the government or fail to guard the rights of the citizenry. Furthermore, a written constitution is not mandatory for the existence of constitutionalism as long as there is an established practice of limits on governmental powers, the rule of law, and recognizable limitations on how the government may treat its citizens. For instance, England, New Zealand, and Saudi Arabia do not have written constitutions or a bill of rights, but England and New Zealand are constitutional democracies and Saudi Arabia is most definitely not.

 

Finally, it must be noted that constitutionalism, as a concept, is not the same as a majoritarian democracy. In fact, as several commentators note, constitutionalism is anti-majoritarian and therefore exists in tension with democratic practice.[7] Constitutionalism mandates that there are fundamental social values and individual entitlements that may not be negated by the will of the majority. The will of the majority is respected as long as it does not trump the fundamental rights of the minority.[8] Of course, some scholars have argued that constitutionalism, far from being contrary to democracy, in reality makes democracy more effective, or guards democracy from its occasional failures.[9] The fact that constitutionalism guards certain basic values and treats them as inviolable has led some commentators to argue that constitutionalism is founded on a tradition of natural law.[10] In addition, Sanford Levinson and others have argued that constitutionalism is a form of faith or civil religion.[11] Constitutionalism requires a conviction or belief in certain normative values about the worth of a human being and social morality. This belief is akin to a religious conviction that is ingrained in the cultural values of a society.[12]

 

This explanation does not address other contentious conceptual issues such as the necessity of a free market place or the right to private ownership of property for the existence of constitutionalism.[13] Furthermore, this article will not address the role of civil society - a society in which power is presumably distributed among social institutions - or whether constitutionalism must be based on a secular order that limits religion to the private sphere or that excludes religious laws from the public sphere. These are important issues, but they require a much more extensive treatment. The meaning or necessity of the existence of these institutions for the creation or survival of constitutional orders is heavily contested. Nevertheless, some of the issues discussed in this article are pertinent to discussions on secularism in Muslim societies and, therefore, there will be an occasion to elaborate upon this practice. At this stage, the intent is simply to clarify the sense in which the word constitutionalism is used in this article before proceeding to address the Islamic context.

 

3. THE MAIN CONCEPTS OF ISLAMIC POLITICAL THOUGHT: A GOVERNMENT BOUND BY RULE OF LAW

 

Ibn Khaldūn (d. 784/1382), the well-known Muslim historian and sociologist, separated all political systems into three broad types. The first system, Ibn Khaldūn described as a natural system, which approximates a primitive state of nature. This is a lawless system in which the most powerful dominates, and tyrannizes the rest. The second system, which Ibn Khaldūn describes as dynastic, is tyrannical as well, but it is based on laws issued by a king or prince. However, due to their origin, these laws are baseless and capricious, and so people obey such laws out of necessity or compulsion, but the laws themselves are illegitimate and tyrannical. The third system, and the most superior, is the Caliphate, which is based on Sharī‘ah law. Sharī‘ah law fulfills the criteria of justice and legitimacy, and binds the governed and governor alike. Because the government is bound by a higher law that it may not alter or change, and because the government may not act whimsically or outside the pale of law, the Caliphate system is superior to any other.[14]

 

Ibn Khaldūn’s categorization is not unusual in pre-modern Islamic literature. The notion that the quintessential characteristic of a legitimate Islamic government is that it is a government subject to and limited by Sharī‘ah law, is repeated often by classical jurists.[15] Muslim jurists insisted that a just Caliph must apply and be himself bound by Sharī‘ah law, and in fact, someone such as Abū al-Faraj al-Baghdādī Ibn al-Jawzī (d. 597/1200) asserted that a Caliph who tries to alter God’s laws for politically expedient reasons is implicitly accusing the Sharī‘ah of imperfection.[16] Ibn al-Jawzī elaborates upon this point by contending that under the guise of political expediency or interests, innocent Muslims could be murdered. In reality, he argues, no political interest could ever justify the killing of a Muslim without legitimate legal cause.[17]

 

Particularly after the 4th/ 10th century, it became fairly well-established that the jurists (‘ulamā′) are the spokespersons for the Divine law, which was expressed in an often repeated phrase that the ‘ulamā’ are the inheritors of the Sharī‘ah. Effectively, Muslim jurists argued that the Caliph should consult with the jurists before undertaking to implement any laws. Although jurists often argued that the Caliph ideally should himself be trained in law and qualify for the rank of a mujtahid (jurist of the highest rank capable of generating de novo law), this did not mean that the Caliph was empowered to implement laws without regard to the opinions of the jurists. Even a Caliph who is a mujtahid is bound by the well-established principles [of Sharī‘ah] and the rules of law.[18] This subject will be discussed in detail, when the concept of government by consultation (shūrā) will be explained. Before proceeding, it is important to distinguish between the concepts of the rule of law and the supremacy of law.

 

Although the idea of government limited by law is well-supported in the Islamic tradition, this does not necessarily amount to a principle of limited government or the rule of law. In a system where law is supreme or there is rule by law, the government is expected to be bound by particular substantive laws. However, in a system where there is rule of law, the government is not only bound by particular positive rules but by the process and institution of law. Arguably, this distinction could be valid because classical jurists did not advocate the notion of the supremacy of the rule of law, but did advocate the supremacy of legal rules. One could argue that the Islamic tradition did affirm the notion of rule by law or government limited by laws but it did not affirm the concept of rule of law. In other words, in their discourses, Muslim jurists were not articulating the idea that there is a process that guards core legal values and that this process is binding upon the government. Rather, they were arguing that the positive commandments of Sharī‘ah, such as the punishment for adultery or the drinking of alcohol, ought to be respected and enforced by the government. Of course, it is possible for a government to declare its intention to abide by all the positive commandments, but otherwise manipulate the interpretation and application of the rules or the processes of law in order to obtain desired results. It is possible that the juristic conception of a government limited by Sharī‘ah amounted to a notion that the government is acting lawfully if it implements Sharī‘ah.[19] The difficulty, however, is that a government could implement Sharī‘ah criminal penalties, prohibit usury, dictate rules of modesty, and so on, and yet remain a government of unlimited powers not subject to the rule of law. This is because Sharī‘ah is a general term for a multitude of legal methodologies and a remarkably diverse set of interpretive determinations. Structurally, Sharī‘ah is comprised of the Qur’ān, Sunnah, and fiqh (juristic interpretive efforts). Substantively, the Sharī‘ah refers to three different matters: 1. General principles of law and morality; 2. Methodologies for extracting and formulating the law; and 3. The aḥkām, which are the specific positive rules of law. In the contemporary Muslim world there is a tendency to focus on the aḥkām at the expense of the general principles and methodology. It is entirely possible to be Sharī‘ah-complaint, in the sense of respecting the aḥkām, but to ignore or violate the principles and methodologies of Sharī‘ah.

 

As is the case with present Muslim states, nothing prevents the government from incorporating a process that rubberstamps whatever the government deems desirable. Unless the conception of government is founded around core moral values about the normative purpose of Sharī‘ah, and unless there is a process that limits the ability of the government to violate those core moral values, the idea of a government bound by Sharī‘ah remains hopelessly vague. It is quite possible for a government to faithfully implement the main technical rules of Sharī‘ah, but otherwise flout the rule of law. In fact, using the implementation of the technicalities of Sharī‘ah as an excuse could allow the government unrestrained powers. For instance, in order to guard modesty, the government could pass arbitrary laws forbidding many forms of public assembly. Under the guise of protection of orthodoxy, the government could pass arbitrary laws punishing creative expression. Under the guise of protection of individuals from slander, the government could punish many forms of political and social criticism; and a government could imprison or execute political dissenters under the claim that they are sowing fitnah (discord and social turmoil). Arguably, all such governmental actions are Sharī‘ah-compliant unless there is a clear sense about the limits imposed upon the ability of the government to service even the Sharī‘ah. Put differently, the rules of law cannot be used as an excuse to flout the rule of law, and the state cannot be allowed to usurp the process by which Sharī‘ah law is determined.

 

Concerns about the reach or extent of a ruler’s power under Sharī‘ah has antecedents in Islamic history, and so it is not an entirely novel issue. The Mālikī jurist al-Qarāfī (d. 684/1285) attempted to articulate a theory defining the legal jurisdiction of caliphs, judges, and juris-consuls.[20] In addition, there is a considerable juristic discourse on the proper jurisdiction of the police and market inspectors as opposed to judges. In summary, the police and market inspectors have no jurisdiction over any issue that involves competing factual or legal contentions. These issues must be referred to the judge. Any disputes involving contentious facts or interpretations of law must be brought before the judiciary and should not be determined by the executive.

 

In addition, the Islamic tradition is replete with historic anecdotal evidence expressing concern about the ability of contending parties to manipulate the interpretation of the Sharī‘ah to achieve certain aims. For instance, a report was attributed to the Prophet in which he reportedly says, ‘If you lay siege to a fortress, do not accept the surrender of the fortress on the condition that you will apply God’s law, for you do not know [what] God’s law requires. Rather, have them surrender on the condition that you will apply your own judgment.’[21] Reports such as this reflect a nascent concern with the nature of the constraints that the broad concept of Sharī‘ah may have on the actual process of adjudication or resolution of disputes. Notably, however, the invocation of Sharī‘ah or the Qur’ān and Sunnah in confrontations with authority was often used as a symbolic point referring to legitimacy or legality in the management of the social order. For example, in another anecdotal report that reflects this dynamic, the first Umayyad Caliph Mu‘āwiya (r. 40-60/661-680) asked Ḥujr b. ‘Adī al-Kindī (d. 51/671) for his allegiance (bay‘ah). Al-Kindī reportedly agreed to give his allegiance but only on the condition that Mu‘āwiya abides by the Qur’ān and Sunnah. Mu‘āwiya refused, arguing that a conditional allegiance is ineffective and, hence, al-Kindī refused to give his oath of allegiance.[22]

 

Similar dynamics are observed in the early Islamic debates on God’s dominion or sovereignty (ḥākimiyyat Allāh). As is well-known, the group known as the Ḥarūriyyah (later known as the Khawārij) rebelled against the fourth Rightly-Guided Caliph ‘Alī Ibn Abī Ṭālib (d. 40/661) when he agreed to arbitrate his political dispute with Mu‘āwiya. The Khawārij believed that God’s law clearly supported ‘Alī and, therefore, an arbitration or any negotiated settlement was inherently unlawful. The law, as a general category, supported ‘Alī, and any settlement that did not reflect this principle of legality, by definition, was illegitimate. Ironically, ‘Alī, himself, had agreed to the arbitration on the condition that the arbitrators would apply the law of the Qur’ān. Ultimately, the arbitration did not succeed and ‘Alī and Mu‘āwiya were compelled to return to armed conflict. In the view of the Khawārij, by accepting the principle of arbitration and by accepting the notion that legality could be negotiated, ‘Alī, himself, had lost all claims to legitimacy. In fact, the Khawārij declared ‘Alī a traitor, rebelled against him, and eventually succeeded in assassinating him. Typically, the story of the Khawārij is recounted as an example of early religious fanaticism in Islamic history, and this view is substantially correct. However, one ought not overlook the fact that the Khawārij’s rallying cry of ‘dominion belongs to God’ or ‘the Qur’ān is the judge’ (al-ḥukm li-Allāh or al-ḥukm li-l-Qur’ān) was a call for the symbolism of legality and the supremacy of law.[23] This search for legality quickly descended into an unequivocal radicalized call for clear lines of demarcation between what is lawful and unlawful. The anecdotal reports about the debates between ‘Alī and the Khawārij regarding this matter reflect an unmistakable tension about the meaning of legality, and the implications of the rule of law. In one such report, members of the Khawārij accused ‘Alī of accepting the judgment and dominion (ḥākimiyyah) of human beings instead of abiding by the dominion of God’s law. Upon hearing of this accusation, ‘Alī called upon the people to gather and brought a large copy of the Qur’ān. ‘Alī touched the Qur’ān commanding it to speak to the people and to inform them about God’s law. The people gathered around ‘Alī exclaimed, ‘What! It cannot speak, for it is not a human being.’ Upon hearing this, ‘Alī commented that the Qur’ān is but ink and paper, and it is human beings who give effect to it according to their limited personal judgments.[24] Arguably, anecdotal stories such as this do not relate only to the role of human agency in interpreting the Divine word, but they also symbolize a search for the fundamental constitutional values in society. These constitutional values might differentiate between the issues that are subject to political negotiation and expedience, and those issues that constitute unwavering matters of principle and that are strictly governed by law. Furthermore, one can discern in such reports a search for the proper legal limits that may be placed upon a ruler’s range of discretion.

 

IV. JUSTICE AS A CORE CONSTITUTIONAL VALUE

 

One of the issues commonly dealt with in Islamic political thought was the purpose of government (or the Caliphate). The statement of Imām al-Ḥaramayn al-Juwaynī (d. 478/1085) is fairly representative of the argument of Muslim jurists. Al-Juwaynī states:

 

The imāmah (government) is a total governorship and general leadership that relates to the special and common in the affairs of religion and this earthly life. It includes guarding the land and protecting the subjects, and the spread of the message [of Islam] by the word and sword. It includes the correcting of deviation and the redressing of injustice, the aiding of the wronged against the wrongdoer, and taking the right from the obstinate and giving it to those who are entitled to it.[25]

 

The essential idea conveyed here is that government is a functional necessity in order to resolve conflict, protect the religion, and uphold justice. In some formulations, justice is the core value that justifies the existence of government. Ibn al-Qayyim (d. 751/1350), for example, makes this point explicit when he asserts:

 

God sent His message and His Books to lead people with justice... Therefore, if a just leadership is established, through any means, then therein is the Way of God... In fact, the purpose of God’s Way is the establishment of righteousness and justice... so any road that establishes what is right and just is the road [Muslims] should follow.[26]

 

This argument is rooted in a methodical debate among pre-modern scholars about the nature of people if left without a government. The debate is remarkably similar to the Western discourse on the state of nature or the original condition of human beings. In fact, the similarity is such that one suspects that it might be the result of a cross-cultural transmission from the Islamic Civilization to the Christian West.

 

The Islamic debate focused on the original, so-to-speak uncorrupted, nature of human beings, and how that nature affects the role and purpose of government. Some scholars such as Ibn Khaldūn (d. 784/1382), and jurists such as al-Ghazālī (d. 505/1111) argued that human beings are by nature fractious, contentious, and not inclined towards cooperation. Al-Ghazālī, in particular, added that human beings are prone to misunderstandings and conflicts. If one observes the affairs of people, one will notice that married couples and even parents and children fight, and refuse to cooperate in mutually beneficial endeavors. Therefore, these authorities typically argued, government is necessary to force people to cooperate with each other. Government, in a paternalistic fashion, must force people to act contrary to their fractious and contentious natures.[27]

 

Another school of thought exemplified by al-Mawārdī (d. 450/1058) and Ibn Abī al-Rabī‘ (d. 656/1258)[28] argued that people, by their nature, have a tendency to cooperate for physical and spiritual reasons. In fact, God created human beings weak and in need to cooperate with others in order to limit the ability of human beings to commit injustice. Furthermore, God created human beings diverse and different from each other so that they will need each other. This need will invite human beings to further augment their natural tendency to assemble and cooperate in order to establish justice. The relative weakness of human beings and their remarkably diverse abilities and habits will further induce people to draw closer and cooperate with each other. Importantly, human beings, by nature, desire justice, and will tend to cooperate in order to fulfill it. If human beings exploit the Divine gift of intellect and the guidance of the law of God, through cooperation, they are bound to reach a greater level of strength and justice. The ruler, this school of thought argued, ascends to power through a contract with the people pursuant to which he undertakes to further the cooperation of the people, with the ultimate goal of achieving a just society or, at least, maximizing the potential for justice.[29]

 

We will address the concept of the contractual governance later, but for now it is important to emphasize the potential of the pre-modern discourse on the original condition. The discourse on the original condition and the proclivity of human beings towards justice could be appropriated into a normative stance that considers justice to be a core value that the constitutional order is bound to protect. Furthermore, this discourse could be appropriated into a notion of delegated powers in which the ruler is entrusted to serve the core value of justice in light of systematic principles that promote the right of assembly and cooperation in order to enhance the fulfillment of this core value. In addition, a notion of limits could be developed that would restrain the government from derailing the quest for justice or from hampering the right of the people to cooperate in this quest. Importantly, if the government fails to discharge the obligations of its covenant then it loses its legitimate claim to power.

 

There is a pronounced tension between the obligation of implementing the Divine law and the demands for justice. In part, this tension is well exemplified in the ongoing debate between Positivism and Natural law, and it is also inherent to any system of law that must negotiate a relationship with normative moral values. In the context of Sharī‘ah debates, the issue and tension can be summed up in the following question: Does the Divine law define justice or does justice define the Divine law? If it is the former then whatever one concludes is the Divine law therein is justice. If it is the latter, then whatever justice demands is, in fact, the demand of the Divine. For instance, while asserting that people in the original condition will naturally gravitate towards cooperation, Ibn Abī al-Rabī‘ argued that after people form a social unit, God sends His law to the people. God also appoints leaders that guard and apply God’s law. Thus, God’s appointee insures that the people cooperate in giving effect to God’s law.[30] In effect, Ibn Abī al-Rabī‘ makes the organizing principle of society the Divine law, and the Divine law becomes the embodiment of justice. Under this paradigm, there is no point in investigating the constituent elements of justice – there is no point in investigating whether justice means equality of opportunities or results, or whether it means maximizing the potential for personal autonomy, or perhaps, the maximization of individual and collective utility, or the guarding of basic human dignity, or even the simple resolution of conflict and the maintenance of stability, or any other conception that might provide substance to a general conception of justice. There is no point in engaging in this investigation because the Divine law preempts any such inquiry. The Divine law provides particularized positive enactments that exemplify, but do not analytically explore, the notion of justice. Conceptually, the organized society is no longer about the right to assembly, cooperation, or the right to explore the means to justice, but simply about the implementation of the Divine law. Finally this implies the problem noted above, which is that the implementation of the Divine law does not necessarily amount to the existence of limited government, rule of law, and the protection of basic individual rights.

 

V. THE INSTRUMENTALITIES OF GOVERNMENT IN ISLAMIC THOUGHT

 

In Sunni theology, it is well-established that the Prophet died without naming a successor to lead the Muslim community. The Prophet intentionally left the choice of leadership to the Muslim nation as a whole.[31] A statement attributed to the Rightly Guided Caliph Abū Bakr asserts, ‘God has left people to manage their own affairs so that they will choose a leader who will serve their interests.’[32] The word Caliph, the title given to the Muslim leader, literally means the successor or deputy. Early on, Muslims debated whether it is appropriate to name the leader the Caliph of God (khalīfat Allāh), and most scholars preferred the designation The Caliph of the Prophet (khalīfat rasūl Allāh). Hence, the well-known jurist al-Māwardī (d. 450/1058) states:

 

And, he is called Caliph because he succeeded the Prophet [in leading] the nation. So it is proper to call him the caliph of the Prophet [successor of the Prophet]. The scholars disagreed over whether it is proper to call him the Caliph of God. Some allowed it because he [the leader] fulfills the rights of God in His people... but the majority of the jurists disallowed it... because succession can only be in the rights of one who is dead or absent, and God is never absent or dead.[33]

 

Nevertheless, in Sunni thought, the Caliph’s source of legitimacy and parameters of his powers have remained ambiguous. Whether the Caliph was considered the Prophet’s successor or God’s deputy, from a theological point of view, the Caliph did not enjoy the authority of either the Prophet or God. Theologically speaking, God and His Prophet cannot be equated with any other, and their powers of legislation, revelation, absolution, and punishment cannot be delegated to any other. Yet, the exact nature and extent of the Caliph’s powers remains a highly unsettled and contested issue. This is partly due to the fact that the Divine law provides a nexus to the powers, and authority, of both God and His Prophet. In principle, the application of God’s law implies giving effect to the Divine Will, which, in turn, implicates the authority of the Divine. Therefore, Ibn al-Jawzī, for example, states: ‘The Caliph is God’s deputy over God’s followers and lands, and [the Caliphate entails] applying His orders and laws. [This job] was performed by His Prophets and the Caliph performs that role after them [the Prophets].’[34] Even if one assumes that the Caliph cannot be considered the moral equivalent of God or the Prophet, the question remains: How much of the Prophet’s legislative and executive authority does the Caliph enjoy? According to the prominent, and somewhat unrepresentative, jurist Ibn Ṭaymiyyah (d. 728/1328) the word Caliph simply means the physical or historical act of ruling after the Prophet, but it does not connote the transference of the Prophet′s authority or power. The Caliph is the historical, not the moral, successor of the Prophet, and thus, the moral and legal authority of the Prophet (or God) does not vest in a person carrying the title of Caliph.[35] At one point, Ibn Ṭaymiyyah asserts:

 

He [the Caliph] is not the people’s Lord so that he could possibly do without [their assistance]; and he is not God’s Prophet, acting as their agent to God. But he and the people are partners who [must] cooperate for the welfare [of the people] in this earthly life and the Hereafter. They [the people] must help him, and he must help them.[36]

 

Ibn Ṭaymiyyah’s conception of the relationship between the ruler and the commoners is egalitarian, but it does not help in understanding the source of the Caliph’s powers or in delineating the nature of the relationship between the ruler and his people. Ideally, the ruler and ruled should cooperate in order to maximize the best interests of the community, but what is the exact nature of the Caliph’s powers vis-à-vis his subjects.

 

The Sunni jurist al-Bāqillānī (d. 403/1013) is more explicit in differentiating between the authority of the Caliph, and God or the Prophet. He states:

 

The imām (leader) is chosen to apply the laws expounded by the Prophet and recognized by the nation, and he, in all that he does, is the nation’s trustee and representative; and it [the nation] is behind him, correcting him and reminding him... and removing him and replacing him when he does what calls for his removal.[37]

 

In al-Bāqillānī’s conception of the Caliphate, the Caliph is the people’s duly delegated agent who is charged with the obligation of implementing God’s law. This leads to the idea of a representative government, and to a government of limited powers – arguably, the limitations are imposed by the people who act as overseers, insuring compliance with God’s law. Significantly, the Caliph’s charge is not necessarily to give effect to the will of the people, but to give effect to God’s Will, as exemplified by God’s law.[38] This, once again, leads the focus to the issue of the boundaries set by the Divine law, and to the extent that Sharī‘ah law provides limits on the discretion and power of the ruler.

 

The point, quite simply, is that wedding the notion of the Caliphate to the Divine law creates an intimate connection between the Caliph and the Divine Will, and that the Divine Will is not as discernable as some would like to believe. Al-Bāqillānī′s discourse, itself, reflects this symbolic connection when he discusses whether a ruler may name a successor to the Caliphate. Al-Bāqillānī argues that, in fact, it is permissible for the Caliph to do so, and that the people should accept his nomination. His justification is the most interesting part of his discussion; he argues that the people should accept the Caliph’s decision because there is a legal presumption that the Caliph always acts in the best interest of his people. For people to believe otherwise is a sin that calls for repentance.[39] This type of presumption is coherent only if the ruler represents the Divine Will, and not the will of the people, and only if the ruler answers to God and not the people. If the ruler discharges the duties of piety by giving effect to God’s law, however God’s law is defined, he has fulfilled his duties towards the people, and the quality or genuineness of his intentions are assessed only by God. As a result of this type of paradigm, most Muslim jurists argued that a ruler is not removable from power unless he commits a clear, visible, and major infraction against God (i.e., a major sin).[40]

 

Muslim jurists, however, did not completely sever the connection between the ruler and the people. In theory, the Caliphate must be based on a contract (‘aqd) between the Caliph and ahl al-ḥall wa al-‘aqd (the people who have the power of contract; also known as ahl al-ikhtiyār or the people who choose) who give their bay‘ah (allegiance or consent to the Caliph). In the classical theory, a person who fulfills certain conditions (mustawfī al-shurūṭ) must come to power through a contract entered into with ahl al-‘aqd pursuant to which the Caliph is to receive the bay‘ah in return for his promise to discharge the terms of the contract. The terms of the contract were not extensively discussed in Islamic sources. Typically, jurists would write a list of terms that included the obligation to apply God’s law, the obligation to protect Muslims and the territory of Islam, and in return, the ruler was promised the people’s support and obedience. There is no precedent in Islamic discourses for a negotiated contract of the Caliphate. The jurists seemed to treat the contract as a contract of implied terms, but there is no explicit rejection of the notion of a contract of negotiated terms. The extent to which the contract of the Caliphate is subject to the principle of freedom of contract and permissibility of negotiation remains largely undeveloped even in contemporary Islam. Thus far, it has been assumed that the terms of the contract are defined by Sharī‘ah law.

 

Who are ahl al-ḥall wa al-‘aqd? According to the Mu‘tazilite scholar Abū Bakr al-Aṣamm (d. 200/816), the public, as a whole, must constitute ahl al-ḥall wa al-‘aqd; therefore, the public at large must form a consensus, and each person must individually give his bay‘ah to the ruler.[41] The vast majority of the classical jurists, however, disagreed with this position. They argued that ahl al-ḥall wa al-‘aqd are those who possess the necessary shawka (power or strength) to insure the obedience or, in the alternative, the consent of the public. It is not entirely clear whether the material element is the obedience or consent of the people. Do the people who possess this shawka represent the consent of the governed or represent the ability to yield the sufficient amount of power to insure the obedience of the people? Aḥmad Ibn Ḥanbal, the eponym of the Ḥanbalī juristic school of thought, seems to primarily speak of obedience; the people of shawka must be able to deliver the obedience of the people to the ruler.[42] On the other hand, the jurist al-Ghazālī seems to focus on consent as the material issue. He argues that shawka means the ability to deliver the consent of the people – the consent of the ahl al-ḥall wa al-‘aqd must represent the consent of the governed.[43] The idea of the consent of the governed ought not to be equated, however, with conceptions of delegated powers or government by the people. The consent of which al-Ghazālī, and others, speak does not seem to mean the existence of a representative government that seeks to give effect to the will of the people. Rather, consent in pre-modern Islamic discourses appears to be the equivalent of acquiescence. Typically, jurists assert that ahl al-ḥall wa al-‘aqd must be people who fulfill certain conditions such as decency, probity, knowledge and wisdom.[44] Beyond these qualifications, the jurists state that ahl al-ḥall wa al-‘aqd must consist of a certain number of the notables of society (shurafā’ al-umma) or the prominent ‘ulamā’ (jurists).[45] There is considerable disagreement about how many individuals would be sufficient to form the ahl al-ḥall wa al-‘aqd. Some, such as al-Juwaynī, argued that the exact number is immaterial; ahl al-ḥall wa al-‘aqd could be a single person or a hundred as long as the requirement of shawka is fulfilled.[46]

 

One must admit, however, that the discourse exhibits a certain amount of distrust of the laity (al-‘āmma). The Mu‘tazilī scholar al- Jāḥiẓ (d. 255/868-869) asserts: ‘They [the laity] tend to float with every ebb and flow, and maybe [the laity] will be more content with choosing [to the Caliphate] the wrong-doers instead of the righteous [rulers] ...’[47] Although al-Jāḥiẓ, being a Mu‘tazilī, is not representative of mainstream Islamic thought on many issues, he does reflect a wider trend. Considered in their historical contexts, the distrust exhibited by the classical jurists towards the laity is hardly surprising. In addition, since the juristic class saw itself as the expounders and defenders of the Divine law in organized societies ordered around tribal, feudal-like, or guilded institutions, it is not surprising that jurists did not focus on the political function of individuals or on majoritarian will. In pre-modern periods, institutions represented individuals and individuals were empowered by well-defined custom-bound roles and functions, and in these historical contexts, the institution of the tribe or guild mattered far more than the individual. Therefore, deference to any kind of strict majoritarian authority, would have made little sense. Expecting the juristic tradition to give effect to or to defer to the will of the majority would be an anachronism.

 

In terms of analyzing any potential dynamics between Sharī‘ah and constitutionalism, the idea of contractual government would appear to be far more significant and promising than any classical notions of majoritarian rule. This begs the question of the nature of this contract of governance or what are the values that inspired this contractual notion? Interestingly, Muslim jurists did struggle with this issue but they often debated whether the contract of the Caliphate is akin to an employment contract, sale contract, or marriage contract in trying to figure out the jurisprudence that should apply to this unique form of contractual relationship.[48] In Islam, the concept of a political contract had rather clear historical origins – it was initiated and practiced by the Companions after the death of the Prophet. The Prophet, himself, was keen on taking the bay‘ah of his followers on several occasions. Even more, when the Prophet became the governor of Medina, he drafted what is now known as the Constitution of Medina (waṯīqat al-Madīna).[49] The Constitution of Medina does not read like a modern constitutional document – rather, it reads more like a contract or a corporate organizational document. These historical precedents must have persisted into the practices of the early Muslim community. So, although the historical origin was clear, the theoretical justifications for the doctrine of a political contract and bay‘ah remained ambiguous. As the jurists formed a socially and professionally recognizable class of experts, they reasoned that the purpose of the contract is to uphold God’s law. The notion of a contract representing the will of the governed, however, remained vague. The overwhelming majority of Muslim jurists do not argue that the purpose of the Caliphate’s contract is representation. Rather, Muslim jurists indicate that the contract is essentially a promise to uphold God’s law. The consent of the people is needed because the contract is premised on a cooperative relationship between the governor and governed, with the purpose of guarding and protecting the righteous religion and Sharī‘ah. Even though, as we will see below, there are glimpses of the notion of representation on behalf of the people, the dominant paradigm is one in which both the ruler and ruled act as God’s duly delegated agents (khulafā’ Allāh) in implementing the Divine law. Particularly after the age of miḥna (Islamic inquisition – 217-234/833-849), the ‘ulamā’ were able to establish themselves as the exclusive interpreters and articulators of the Divine law. Thus, in order for a Caliph and community to attain and continue enjoying Islamic legitimacy, they would have to dedicate themselves to upholding the Will of God as articulated by the jurists. In a sense, we end up with a tri-polar dynamic with the ruler and governors at one pole, the jurists at another, and the laity at the third. But one would have to consider the possibility that between the interpretive and legislative tasks of the jurists and the executory duties of the ruler, the common people do not play a major role in the negotiative process between the three social poles. This possibility is quite clear in a statement by the jurist Ibn Qayyim who states:

 

Properly speaking, the rulers (al-umarā’) are obeyed [only to the extent] that their commands are consistent with the [articulations] of the religious sciences (al-‘ilm). Hence, the duty to obey them [the rulers] derives from the duty to obey the jurists (fa-ṭā‘atuhum taba‘ li-ṭā‘’at al-‘ulamā’). [This is because] obedience is due only in what is good (ma‘rūf), and what is required by the religious sciences (wa mā awjabahu al-‘ilm). Since the duty to obey the jurists is derived from the duty to obey the Prophet, then the duty to obey the rulers is derived from the duty to obey the jurists [who are the experts on the religious sciences]. Furthermore, since Islam is protected and upheld by the rulers and the jurists alike, this means that the laity must follow [and obey] these two [i.e. the rulers and jurists].[50]

 

The final instrumentality of government that warrants mention is the concept of shūrā (government by consultation).[51] Shūrā was often invoked as the ideal of participatory governance – an ideal frequently used as a contrast and in opposition to despotic and unjust systems of government. In various historical contexts, this ideal was employed by groups that resisted power frequently using the concept of shūrā to embarrass or shame despotic rulers. There are many historical reports indicating that the Prophet regularly consulted with his Companions regarding the affairs of the state.[52] The concept of shūrā, shortly after the death of the Prophet, had become a symbol signifying participatory politics and legitimacy. ‘Alī accused ‘Umar b. al-Khaṭṭāb and Abū Bakr of not respecting the shūrā by nominating Abū Bakr to the Caliphate in the absence of the Prophet’s family.[53] The opposition to ‘Uṯmān b. ‘Affān (r. 23-35/644-656), the third Rightly Guided Caliph, accused him of destroying the rule of shūrā because of his nepotistic and autocratic policies. The pretender to the Caliphate, Ibn al-Zubayr (r. 60-73/680-692), accused the Umayyads of destroying the shūrā as well. Al-Ḥasan, ‘Alī’s son and the Prophet’s grandson, lamented that the Caliphate was passed on from Mu‘āwiya, (the first Umayyad Caliph, r. 40-60/661-680), to his son Yazīd by saying: ‘If it had not been for that fact, the Caliphate would have been continued by shūrā until the Final Day.’[54] Al-Jāḥiẓ contended that Mu‘āwiya was able to achieve power only by destroying the shūrā and ruling by force and oppression.[55] Although the precise meaning of shūrā in these historical narratives is unclear, most certainly the concept did not refer to the mere act of a ruler soliciting the opinions of some notables in society. Shūrā signified the antithesis or the opposite of autocracy, government by force, or oppression.

 

Post 3rd/9th century, the concept of shūrā took much more of an institutional shape. Shūrā became the formal act of consulting ahl al-shūrā (the people of consultation), who are the same group of people forming ahl al-ḥall wa al-‘aqd. Muslim jurists debated whether the results of the consultative process are binding (shūrā mulzimah) or non-binding (ghayr mulzimah). If the shūrā is binding, then the ruler must abide by the determinations made by ahl al-shūrā. The majority of the jurists, however, concluded that the determinations of ahl al-shūrā are advisory and not compulsory. Some jurists, such as al-Ghazālī, did not specifically discuss the issue of the binding nature of shūrā, but argued that a Caliph who is not a mujtahid[56] should not rule on any problem without first consulting the jurists.[57] In this context, al-Ghazālī concluded: ‘Despotic, non-consultative, decision-making, even if from a wise and learned person is objectionable and unacceptable.’[58]

 

VI. THE POSSIBILITY OF INDIVIDUAL RIGHTS

 

This is the most challenging topic, and it is not possible to do it justice in this article. Despite its critical significance, the very concept of individual rights is elusive both in terms of the sources and the nature of those rights. What defines a right and how to formulate or define a right in the modern world is the subject of an enormous debate. For instance, whether there are inherent and absolute individual rights, or simply presumptive individual entitlements that could be outweighed by countervailing considerations, is debatable.[59] Moreover, while all constitutional democracies afford protections to a particular set of individual interests, such as freedom of speech and assembly, equality before the law, right to property, and due process of law, which exact rights ought to be protected, and to what extent, is subject to a large measure of variation in theory and practice. For the purposes of this article, a minimalist, and hopefully non-controversial, notion of individual rights will be used. Individual rights are not understood as entitlements, but qualified immunities – the idea that particular interests related to the well-being of an individual ought to be protected from infringements whether perpetuated by the state or other members of the social order, and that such interests should not be sacrificed unless for an overwhelming necessity. This, as noted, is a minimalist description of rights, and a largely inadequate one. It is certainly doubtful that there is an objective means of quantifying an overwhelming necessity, and thus, some individual interests ought to be unassailable under any circumstances. These unassailable interests are the ones that, if violated, are bound to communicate to the individual in question a sense of worthlessness, and that, if violated, tend to destroy the faculty of a human being to comprehend the necessary elements for a dignified existence. Therefore, for instance, under this conception, the use of torture, the denial of food or shelter, or the means for sustenance, such as employment, under any circumstances, would be a violation of an individual’s rights.

 

Some contemporary Muslims have argued that the Islamic tradition can be interpreted to provide for a systematic vision of individual rights, and some of these scholarly arguments have been more persuasive than others.[60] It is fair to say, however, that the Islamic juristic tradition did not articulate a notion of individual rights as privileges, entitlements, or immunities. Nonetheless, the juristic tradition did articulate a conception of protected interests that accrue to the benefit of the individual. In jurisprudential theory, the purpose of Sharī‘ah is to fulfill the welfare of the people. The interests or the welfare of the people is divided into three categories: the necessities (ḍarūriyyāt), the needs (ḥājiyyāt), and the luxuries (kamāliyyāt or taḥsīniyyāt). The law and political policies of the government must fulfill these interests in descending order of importance – first, the necessities, then the needs, and then the luxuries. The necessities are further divided into five basic values – al-ḍarūriyyāt al-khamsah: religion, life, intellect, lineage or honor, and property.[61] But Muslim jurists did not develop the five basic values as conceptual categories and then explore the theoretical implications of each value. Rather, they pursued what can be described as an extreme positivistic approach to rights. Muslim jurists examined the existing positive legal injunctions that can be said to serve these values, and concluded that by giving effect to these specific legal injunctions, the values have been sufficiently fulfilled. So, for example, Muslim jurists contended that the prohibition of murder served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property.[62] Limiting the protection of the intellect to the prohibition against the consumption of alcohol or the protection of life to the prohibition of murder is hardly a very thorough protection of the intellect or life. At most, these laws are partial protections to a limited conception of values, and at any case, cannot be asserted as the equivalent of individual rights. If reduced to technical legalistic objectives, these five values are effectively emptied of any theoretical social and political content and significance. If properly developed, these basic five values could act as a foundation for a systematic theory of a political and social order.

 

To argue that the Islamic juristic tradition did not develop the idea of fundamental or basic individual rights does not mean that that tradition was oblivious to the notion. In fact, the juristic tradition tended to sympathize with individuals who were unjustly executed for their beliefs or those who died fighting an injustice. Jurists typically described such acts as a death of muṣābarah, a description that carried positive or commendable connotations. Muslim jurists produced a formidable discourse condemning the imposition of unjust taxes and the usurpation of private property by the government.[63] Furthermore, the majority of Muslim jurists refused to condemn or criminalize the behavior of rebels who revolt because of the imposition of oppressive taxes or who resist a tyrannical government.[64] In addition, the juristic tradition articulated a wealth of positions that exhibit a humanitarian or compassionate orientation. For example, Muslim jurists developed the idea of presumption of innocence in all criminal and civil proceedings, and argued that the accuser always carries the burden of proof (al-bayyinah ‘alā man idda‘ā).[65] In matters related to heresy, Muslim jurists repeatedly argued that it is better to let a thousand unbelievers go free than to wrongfully punish a single Muslim. The same principle was applied to criminal cases.[66] Moreover, many jurists condemned the practice of detaining heterodox groups that advocate their heterodoxy (such as the Khawārij), and argued that such groups may not be harassed or molested until they carry arms and form a clear intent to rebel against the government.[67] Muslim jurists also condemned the use of torture, arguing that the Prophet forbade the use of miṯlah (the use of mutilations) in all situations,[68] and opposed the use of coerced confessions in all legal and political matters.[69] A large number of jurists articulated a doctrine similar to the American exculpatory doctrine – confessions or evidence obtained under coercion are inadmissible at trial. Interestingly, some jurists asserted that a judge that relies on a coerced confession in a criminal conviction is, in turn, held liable for the wrongful conviction. Most argued that the defendant, or his family, may bring an action for compensation against the judge, individually, and against the Caliph and his representatives, generally.[70]

 

One of the most intriguing discourses in the juristic tradition is that which relates to the rights of God and the rights of people. The rights of God (ḥuqūq Allāh) are rights retained by God as His own through an explicit designation to that effect. These rights belong to God in the sense that only God can say how the violation of these rights may be punished and only God has the right to forgive such violations.[71] These rights are, so to speak, subject to the exclusive jurisdiction of God, and human beings have no choice but to follow the explicit and detailed rules that God set out for the handling of His jurisdiction. All other rights not retained by God, accrue to the benefit of human beings. These are called ḥuqūq al-‘ibād, ḥuqūq al-nās, or ḥuqūq al-ādamiyyīn.[72] Importantly, while violations of God’s rights are only forgiven by God through adequate acts of repentance, the rights of people may be forgiven only by the people. For instance, a right to compensation is retained individually by a human being and may only be forgiven by the aggrieved individual. The government, or even God, does not have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings. Therefore, the Mālikī jurist Ibn al-‘Arabī (d. 543/1148) states:

The rights of human beings are not forgiven by God unless the human being concerned forgives them first, and the claims for such rights are not dismissed [by God] unless they are dismissed by the person concerned...The rights of a Muslim cannot be abandoned except by the possessor of the right. Even the imām [ruler] does not have the right to demand [or abandon] such rights. This is because the imām is not empowered to act as the agent for a specific set of individuals over their specific rights. Rather, the imām only represents people, generally, over their general and unspecified rights.[73]

 

In a similar context, the Ḥanafī jurist al-‘Ayīnī (d. 855/1451) argues that the usurper of property, even if a government official (al-ẓālim), will not be forgiven for his sin, even if he repents a thousand times, unless he returns the stolen property.[74] Most of these discourses occur in the context of addressing personal monetary and property rights, but they have not been extended to other civil rights, such as the right to due process or the right to listen, to reflect, and to study, which may not be abandoned or violated by the government under any circumstances. This is not because the range of the rights of people was narrow – quite to contrary it is because the range of these rights were too broad. It should be recalled that people retain any rights not explicitly reserved by God. Effectively, since the rights retained by God are quite narrow, the rights accruing to the benefit of the people are numerous. The classical juristic practice has tended to focus on narrow legal claims that may be addressed through the processes of law rather than on broad theoretical categories that were perceived as non-justiciable before a court. As such, the jurists tended to focus on tangible property rights or rights for compensation instead of focusing on moral claims. So, for instance, if someone burns a person’s books, that person may seek compensation for destruction of property, but he could not bring an action for injunctive relief preventing the burning of the books in the first place. Despite this limitation, the juristic tradition did, in fact, develop a notion of individual claims that are immune from governmental or social limitation or alienation.

 

VII. CONSTITUTIONALISM AND SHARĪ‘AH

 

A number of contemporary Muslim commentators have argued that Islam is fundamentally compatible with a constitutional system of government. In a style that has become all too common in the contemporary Muslim world, commentators will generate a laundry list of concepts such as shūrā, the contract of the Caliphate, the idea of bay‘ah, and the supremacy of Sharī‘ah, and then conclude that Islam is compatible with constitutionalism. Some proclaim that the Qur’ān is the constitution of Muslims and then rest in the comfort of the same assertion.[75] These types of arguments, however, are for the most part vacuous. They are the product of an intellectual restlessness induced by the rather abysmal fortunes of the Islamic heritage in the modern age. As noted earlier, constitutional practice appropriates the values and intellectual heritage that prevails within a society. Although various trajectories of constitutional thought were definitely generated in the Islamic intellectual heritage, it would be an exaggeration to claim that constitutional values or constitutionalism are inherently a part of the Islamic tradition. But it is the trajectories of the Islamic tradition that can be co-opted in the contemporary age, and developed into full-fledged constitutional visions and commitments that could then grow into systematic constitutional practices.

 

Any constitutionalist practice must come to terms with the centrality of Sharī‘ah to the conception of government in Islam. In many ways, in an Islamic system, sovereignty belongs to the Sharī‘ah, and not to the people. Sharī‘ah represents the Will of God, and according to many classical jurists, people and government must steadfastly work and cooperate to serve Sharī‘ah and its objectives. The difficulty, however, is that Sharī‘ah is a construct of limitless reach and power, and any institution that can attach itself to that construct becomes similarly validated and empowered by the Divinity of Sharī‘ah. Sharī‘ah is God’s Way, and it is represented by a set of normative principles, methodologies for the production of legal injunctions, and a set of positive legal rules. But Sharī‘ah also encompasses a variety of schools of thought and approaches, all of which are equally valid and equally orthodox.[76] Nevertheless, Sharī‘ah as a whole, with all its schools and variant points of view, remains the Way and law of God. It is certainly true that the Sharī‘ah is capable of imposing limits on government, and of generating individual rights, both of which would be considered the limits and rights dictated by the Divine Will. Nevertheless, whatever limits are imposed and whatever rights are granted, may be withdrawn in the same way they are created: through the agency of human interpretation. In other words, because the Sharī‘ah, for the most part, is not explicitly dictated by God, Sharī‘ah relies on the interpretive acts of the human agents for its production and execution. This creates a double-edged conceptual framework – on the one hand, Sharī‘ah could be the source of unwavering and stolid limitations on government and an uncompromising grant of rights, but on the other hand, whatever is granted by God can also be taken away by God. In both cases, one cannot escape the fact that it is human agents who determine the existence, or non-existence, of the limits on government and the grant of individual rights. This is a formidable power that could be yielded, in one way or another, by the human agent who attaches himself or herself to the Sharī‘ah.

 

To propose secularism as a solution in order to avoid the hegemony of Sharī‘ah, and the possibility of an abuse of power is unacceptable. There are several reasons for this: one, given the rhetorical choice between allegiance to the Sharī‘ah and allegiance to Constitutionalism, quite understandably most Muslims will make the equally rhetorical decision to ally themselves to the Sharī‘ah. Two, secularism has become an unworkable and unhelpful symbolic construct. In the Muslim world, secularism is normally associated with what is described as the Western intellectual invasion, both in the period of Colonialism and post-Colonialism. Furthermore, secularism has come to symbolize a misguided belief in the probity of rationalism and a sense of hostility to religion as a source of guidance in the public sphere. Three, beyond the issue of symbolism, as noted earlier, there is a considerable variation in the practice of secularism. It is entirely unclear to what extent the practice of secularism requires a separation of church and state, especially in light of the fact that there is no institutional church in Islam. Put differently, to what extent does the practice of secularism mandate the exclusion of religion from the public domain, including the exclusion of religion as a source of law?[77] Finally, to the extent that the secular paradigm relies on a belief in the guidance-value of reason as a means for achieving utilitarian fulfillment or justice, it is founded on a conviction that is not empirically or morally verifiable. One could plausibly believe that religion is an equally valid means of knowing or discovering the means to happiness or justice.[78]

 

The fact that secularism is a word laden with unhelpful connotations in the Islamic context should not blind us to the fact that the discourse of Sharī‘ah enables human beings to speak in God’s name, and effectively empowers human agency with the voice of God. This is a formidable power that is easily abused. Interestingly, although, as noted above, Muslim jurists insisted that the rulers consult with the jurists on all matters, the jurists themselves never demanded the right to rule the Islamic state directly. In fact, pre-modern Muslim jurists never assumed direct rule in the political sphere.[79] Throughout Islamic history, the ‘ulamā’ performed a wide range of economic, political, and administrative functions, but most importantly, they acted as negotiative mediators between the ruling class and the laity. As Afaf Marsot states: ‘[The ‘ulamā’] were the purveyors of Islam, the guardians of its tradition, the depository of ancestral wisdom, and the moral tutors of the population.’[80] While they legitimated and often explained the rulers to the ruled, they also used their moral weight to thwart tyrannous measures, and, at times, led or legitimated rebellions against the ruling classes.[81] As Marsot correctly points out, ‘[t]o both rulers and ruled they were an objective haven which contending factions could turn to in times of stress.’[82] For a variety of reasons, modernity turned the ‘ulamā’ from ‘vociferous spokesmen of the masses’ into salaried state functionaries that play a primarily conservative, legitimist role for the ruling regimes in the Islamic world.[83] The disintegration of the role of the ‘ulamā’ and their co-optation by the modern praetorian state, with its hybrid practices of secularism, has made Islamic normative determinations all the less rich.[84]

 

There are a variety of historical and doctrinal reasons that explain the traditional function of the ‘ulamā’ as mediators and moral educators, and their renouncement of the role of direct rulers. However, there is one aspect of Islamic theology that might contribute to the development of a meaningful discourse on constitutionalism in the Muslim context. As noted earlier, Muslims developed several legal schools of thought, all of which are equally orthodox. But paradoxically, Sharī‘ah is the core value that society must serve. The paradox here is exemplified in the fact that there is a pronounced tension between the obligation to live by God’s law, and the fact that this law is manifested only through subjective interpretive determinations. Even if there is a unified realization that a particular positive command does express the Divine law, there is still a vast array of possible subjective executions and applications. This dilemma was resolved, somewhat, in Islamic discourses by distinguishing between Sharī‘ah and fiqh. Sharī‘ah, it was argued, is the Divine ideal, standing as if suspended in mid-air, unaffected and uncorrupted by the vagaries of life. The fiqh is the human attempt to understand and apply the ideal. Therefore, Sharī‘ah is immutable, immaculate, and flawless – fiqh is not. [85]

 

As part of the doctrinal foundations for this discourse, Muslim jurists focused on the tradition attributed to the Prophet stating: ‘Every mujtahid (jurist who strives to find the correct answer) is correct’ or ‘Every mujtahid will be [justly] rewarded.’[86] This implied that there could be more than a single correct answer to the same exact question. For Muslim jurists, this raised the issue of the purpose or the motivation behind the search for the Divine Will. What is the Divine Purpose behind setting out indicators to the Divine law and then requiring that human beings engage in a search? If the Divine wants human beings to reach the correct understanding, then how could every interpreter or jurist be correct?

 

The juristic discourse focused on whether or not the Sharī‘ah had a determinable result or demand in all cases, and if there is such a determinable result, are Muslims obligated to find it? Put differently, is there a correct legal response to all legal problems, and are Muslims charged with the legal obligation of finding that response? The overwhelming majority of Muslim jurists agreed that good faith diligence in searching for the Divine Will is sufficient to protect a researcher from liability before God. As long as the reader exercises due diligence in the search, the researcher will not be held liable nor incur a sin regardless of the result. Beyond this, the jurists were divided into two main camps. The first school, known as the mukhaṭṭi’ah, argued that ultimately, there is a correct answer to every legal problem. However, only God knows what the correct response is, and the truth will not be revealed until the Final Day. Human beings, for the most part, cannot conclusively know whether they have found that correct response. In this sense, every mujtahid is correct in trying to find the answer, however, one reader might reach the truth while the others might mistake it. God, on the Final Day, will inform all readers who was right and who was wrong. Correctness here means that the mujtahid is to be commended for putting in the effort, but it does not mean that all responses are equally valid.

 

The second school, known as the muṣawwibah, included prominent jurists such as al-Juwaynī, Jalāl al-Dīn al-Suyūṭī (d. 911/1505), al-Ghazālī (d. 505/1111) and Fakhr al-Dīn al-Rāzī (d. 606/1210), and it is reported that the Mu‘tazilah were followers of this school as well.[87] The muṣawwibah argued that there is no specific and correct answer (ḥukm mu‘ayyan) that God wants human beings to discover, in part, because if there were a correct answer, God would have made the evidence indicating a Divine rule conclusive and clear. God cannot charge human beings with the duty to find the correct answer when there is no objective means to discovering the correctness of a textual or legal problem. If there were an objective truth to everything, God would have made such a truth ascertainable in this life. Legal truth, or correctness, in most circumstances, depends on belief and evidence, and the validity of a legal rule or act is often contingent on the rules of recognition that provide for its existence. Human beings are not charged with the obligation of finding some abstract or inaccessible legally correct result. Rather, they are charged with the duty to diligently investigate a problem and then follow the results of their own ijtihād. Al-Juwaynī explains this point by asserting, ‘The most a mujtahid would claim is a preponderance of belief (ghalabat al-ẓann) and the balancing of the evidence. However, certainty was never claimed by any of them (the early jurists)... If we were charged with finding [the truth] we would not have been forgiven for failing to find it.’[88] According to al-Juwaynī, what God wants or intends is for human beings to search – to live a life fully and thoroughly engaged with the Divine. Al-Juwaynī explains: it is as if God has said to human beings, ‘My command to My servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My command.’[89] God's command to human beings is to diligently search, and God's law is suspended until a human being forms a preponderance of belief about the law. At the point that a preponderance of belief is formed, God's law becomes in accordance with the preponderance of belief formed by that particular individual. In summary, if a person honestly and sincerely believes that such and such is the law of God, then, as to that person ‘that’ is in fact God’s law.[90]

 

The position of the second school (muṣawwibah), in particular, raises difficult questions about the application of the Sharī‘ah in society.[91] This position implies that God’s law is to search for God’s law, otherwise the legal charge (taklīf) is entirely dependent on the subjectivity and sincerity of belief. The first school (mukhaṭṭi’ah) indicates that whatever law is applied is potentially God’s law, but not necessarily so.[92] This raises the question: Is it possible for any state enforced law to be God’s law? Under the first school of thought, whatever law the state applies, that law is only potentially the law of God, but we will not find out until the Final Day. Under the second school of thought, any law applied by the state is not the law of God unless the person, to which the law applies, believes the law to be God’s Will and Command. The first school suspends knowledge until the end of life, and the second school hinges knowledge on the validity of the process and ultimate sincerity of belief.

 

Building upon this intellectual heritage, Sharī‘ah ought to stand in an Islamic polity as a symbolic construct for the Divine perfection that is unreachable by human effort. It is the epitome of justice, goodness, and beauty as conceived and retained by God. Its perfection is preserved, so to speak, in the Mind of God, but anything that is channeled through human agency is necessarily marred by human imperfection. Put differently, Sharī‘ah as conceived by God is flawless, but as understood by human beings, Sharī‘ah is imperfect and contingent. Jurists ought to continue exploring the ideal of Sharī‘ah, and ought to continue expounding their imperfect attempts at understanding God’s perfection. As long as the argument constructed is normative, it is an unfulfilled potential for reaching the Divine Will. Significantly, any law applied is necessarily a potential-unrealized. Sharī‘ah is not simply a bunch of aḥkām (a set of positive rules) but also a set of principles, methodology, and a discoursive process that searches for the Divine ideals. As such, Sharī‘ah is a work in progress that is never complete. To put it more concretely, a juristic argument about what God commands is only potentially God’s law, either because in the Final Day we will discover its correctness (the first school) or because its correctness is contingent on the sincerity of belief of the person who decides to follow it (the second school). If a legal opinion is adopted and enforced by the state, it cannot be said to be God’s law. By passing through the determinative and enforcement processes of the state, the legal opinion is no longer simply a potential – it has become an actual law, applied and enforced. But what has been applied and enforced is not God′s law – it is the state’s law. Effectively, a religious state law is a contradiction in terms. Either the law belongs to the state or it belongs to God, and as long as the law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God’s law. Otherwise, we must be willing to admit that the failure of the law of the state is, in fact, the failure of God’s law and, ultimately, God Himself. In Islamic theology, this possibility cannot be entertained.[93]

 

Institutionally, it is consistent with the Islamic experience that the ‘ulamā’ can and do play the role of the interpreters of the Divine Word, the custodians of the moral conscience of the community, and the curators reminding and pointing the nation towards the Ideal that is God.[94] But the law of the state, regardless of its origins or basis, belongs to the state. It bears emphasis that under this conception, there are no religious laws that can or may be enforced by the state. The state may enforce the prevailing subjective commitments of the community (the second school), or it may enforce what the majority believes to be closer to the Divine Ideal (the first school). But, it bears emphasis; in either case, what is being enforced is not God’s law. This means that all laws articulated and applied in a state are thoroughly human, and should be treated as such. This means that any codification of Sharī‘ah law produces a set of laws that are thoroughly human. These laws are a part of Sharī‘ah law only to the extent that any set of human legal opinions can be said to be a part of Sharī‘ah. A code, even if inspired by Sharī‘ah, is not Sharī‘ah – a code is simply a set of positive commandments that were informed by an ideal but do not represent the ideal. As to the fundamental rights that often act as the foundation of a constitutional system, a Muslim society would have to explore the basic values that are at the very core of the Divine Ideal. It would seem that the five juristic core values of protecting religion, life, intellect, honor, and property are a good starting point. It would seem that there must become normative organizing values upon which a scheme of rights and protections would have to be developed, for instance, the protection of religion would become the right to the freedom of religious belief; the protection of life would mean that the taking of life must be for just cause and the result of a just process; the protection of the intellect would have to mean the right to free thinking, expression and belief; the protection of honor would have to mean the protecting of the dignity of a human being; and the protection of property would be the right to property and in certain conditions, compensation for the taking of property. Of course, this is not a complete or exhaustive list of all rights that ought to be guarded in a constitutional order. The five values are the core from which other necessary rights could be derived.

 

Most importantly, in a constitutionalist system, both the governor and the governed answer to a higher system of values and moral order. Neither political expedience nor majoritarian whims can transcend the normative values and moral commitments of a society that is dedicated to pursuing visions of liberty, dignity, and well-being. The challenge confronted by any social order ought to be the pursuit of justice and virtue. However, as the classical jurists would argue, virtue cannot be pursued by unvirtuous means and justice cannot be pursued through injustice. The classical jurists would also agree that there is nothing just or virtuous in despotism and autocracy. To the extent that constitutionalism avoids the excesses and corruptions of power by placing strict limits upon government and carefully restraining and defining the powers of rulers, this is both just and virtuous and completely consistent with the objectives of Sharī‘ah.

 

NOTES

 

* I am grateful to Stephen Gardbaum, and my wife Grace for their invaluable feedback and assistance.

 

[1] For an overview of the development of constitutionalism in Western Europe, see the classic work Charles Howard McIlwain, Constitutionalism: Ancient and Modern (rev. ed., Cornell University Press, Ithaca 1947). For an essay on the difficulty of designing constitutional systems, especially in ethnically and culturally divided nations, see Donald L. Horowitz, ‘Constitutional Design: An Oxymoron?’ in Ian Shapiro and Stephen Macedo (eds), Designing Democratic Institutions (Nomos XLII, New York University Press, New York 1999) 253-284.

 

[2] Michel Rosenfeld, ‘Modern Constitutionalism as Interplay Between Identity and Diversity’ in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press, Durham and London 1994) 3, 13-14 argues that although a single definition is not possible, modern constitutionalism does impose certain requirements.

 

[3] On the different practices related to limits imposed on government, see Rosenfeld (n 2) 11.

 

[4] Edward Corwin, ‘The Constitution as Instrument and as Symbol’ in Richard Loss (ed), Corwin on the Constitution (Cornell University Press, Ithaca 1981-1988) I:168-179, 170f.; Sanford Levinson, ‘The Moral Dimension of Constitutional Faith’ in Constitutional Faith (Princeton University Press, Princeton 1988) 54-65. There is a vast literature on the conceptual framework of the rule of law. See, Ian Shapiro (ed) The Rule of Law (New York: New York University Press, 1994); Marc A. LePain, Jeffrey C. Cohen (trs) and Blandine Kriegel, The State and the Rule of Law (Princeton University Press, Princeton 1995); Luc B. Tremblay, The Rule of Law, Justice, and Interpretation (McGill-Queen’s University Press, Montreal, Canada 1997); Arthur L. Harding (ed), The Rule of Law (Southern Methodist University Press, Dallas 1961).

 

[5] Edward Corwin (n 4) 169. Also see below.

 

[6] Walter Murphy, ‘The Art of Constitutional Interpretation: A Preliminary Showing’ in M. Judd Harmon (ed), Essays on the Constitution of the United States (Kennikat Press, Port Washington, New York 1978) 130-194, 156-158, argues that human dignity is the core value of the American Constitution, and implies that it might be the essential value for constitutional systems.

[7] Rosenfeld (n 2) 20, 27; Murphy (n 6) 134; Cass R. Sunstein, ‘Constitutions and Democracies: An Epilogue’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, Cambridge 1988) 327.

 

[8] Murphy (n 6) 134.

 

[9] Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, Cambridge 1988) 195-240; Sunstein (n 7) 339-353, responds to Holmes arguing that constitutionalism can promote or hinder democracy.

 

[10] On a discussion on whether constitutionalism needs natural law, see Murphy (n 6) 143-145.

 

[11] Sanford Levinson, ‘”The Constitution” in American Civil Religion’ (n 4) 9-36. Levinson states, ‘However much traditional religion may have lost its power to structure reality for most Western intellectuals, analogues present themselves in the guise of various civil religions.’ Ibid at 36. Levinson argues that constitutionalism is one of those civil religions. Also see, Max Lerner, ‘Constitution and Court as Symbols’ (1937) 46 Yale LJ 1290,1319; Robert Bellah, ‘Civil Religion in America’ in Russell E. Richey and Donald G. Jones (eds), American Civil Religion (Harper and Row, New York 1974).

 

[12] Rosenfeld (n 2) 18. Some commentators have argued for a more open acknowledgement of the role of religion in creating the values that constitutionalism appropriates or argued for a re-infusion of religious norms into constitutional practice, see, for instance, Robert Lowry Clinton, God and Man in the Law: the Foundations of Anglo-American Constitutionalism (University Press of Kansas, Lawrence, Kansas 1997); Graham Walker, Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects (Princeton University Press, Princeton 1990).

 

[13] Cass R. Sunstein, Free Markets and Social Justice (Oxford University Press, Oxford 1997) 203-222.

 

[14] Niẓām Barakāt (ed.), Muqaddimah fī al-Fikr al-Siyāsī al-Islāmī (Jāmi‘at al-Malik Su‘ūd, Riyad 1985) 119.

 

[15] See Abū al-Ḥasan ‘Alī b. Muḥammad b. Ḥabīb al-Māwardī (d. 450/1058), al-Aḥkām al-Sulṭāniyyah (Dār al-Kutub al-‘Ilmiyyah, Beirut 1985) 19-21; al-Qāḍī Abū Ya‘lā Muḥammad b. al-Ḥusayn al-Farrā’, al-Aḥkām al-Sulṭāniyyah (Dār al-Kutub al-‘Ilmiyyah, Beirut 1983) 28; Ann Lambton, State and Government in Medieval Islam: An Introduction to the Study of Islamic Political Theory: The Jurists (Oxford University Press, Oxford 1981) 19; W. Montgomery Watt, Islamic Political Thought: The Basic Concepts (Edinburgh University Press, Edinburgh 1968) 102f.; Hanna Mikhail, Politics and Revelation: Māwardī and After (Edinburgh University Press, Edinburgh 1995) 20f.; H.A.R. Gibb, ‘Constitutional Organization’ in Majid Khadduri and Herbert J. Liebesny (eds), Law in the Middle East: Origin and Development of Islamic Law (Middle East Institute, Washington D.C. 1955) Vol. 1, 3-27, 9, 12; Khaled Abou El Fadl, Islamic Law of Rebellion (Cambridge University Press, Cambridge forthcoming); Muḥammad Jalāl Sharaf and ‘Alī ‘Abd al-Mu‘ṭī Muḥammad, al-Fikr al-Siyāsī fī al-Islām: Shakhṣiyyāt wa Madhāhib (Dār al-Jāmi‘āt al-Miṣriyyah, Alexandria 1978) 399; Yūsuf Ībish, Nuṣūṣ al-Fikr al-Siyāsī al-Islāmī: al-Imāmah ‘inda al-Sunnah (Dār al-Ṭalī‘ah, Beirut 1966) 55.

 

[16] Abū al-Faraj al-Baghdādī Ibn al-Jawzī (d. 597/1200) in Fu’ād Aḥmad (ed), al-Shifā’ fī Mawā‘iẓ al-Mulūk wa al-Khulafā (Dār al-Da‘wah, Alexandria 1985) 55; idem in Ibrāhīm Najiyya (ed) al-Miṣbāḥ al-Muḍī’ fī al-Khilāf al-Mustaḍī’, (Maṭba‘at al-Awqāf, Bagdad 1979) 1:298.

 

[17] Ibn al-Jawzī (n 16) al-Shifā, 55, 57; idem (n 16) al-Miṣbāḥ, 1:298.

 

[18] Abū Ḥāmid al-Ghazālī (d. 505/1111) in Abd al-Raḥmān Badawī (ed), Faḍā’iḥ al-Bāṭiniyyah (Dār al-Qawmiyyah, Cairo 1964) 191, 193; Sharaf and Muḥammad (n 15) 351, 399-403; Ibn al-Jawzī, (n 16) al-Shifā’ 55; Abū Ya‘lā Muḥammad b. al-Ḥusayn al-Farrā’ (d. 458/1066), ‘al-Mu‘tamad fī Uṣūl al-Dīn’ in Yūsuf Ībish (n 15) 221; idem (n 15) 20; Shams al-Dīn Abū ‘Abd Allāh Muḥammad b. Abī Bakr Ibn Qayyim al-Jawziyyah (d. 751/1350) in Ṭāhā ‘Abd al-Ra’ūf Sa‘d (ed), I‘lām al-Muwaqqi‘īn ‘an Rabb al-‘Ālamīn (Dār al-Jīl, Beirut n.d.) 1:10.

 

[19] So for instance, Ibn al-Jawzī states: ‘Religion is the origin, and government is its protector.’ Ibn al-Jawzī, (n 16) ‘al-Shifā’, 46f.. See also, Barakāt (n 14) 102f.

 

[20] Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (E.J. Brill, Leiden 1996); idem, ‘From Prophetic Actions to Constitutional Theory: A Novel Chapter in Medieval Muslim Jurisprudence’ (1993) 25 Int'l J.Mid.E.Stud. 71-90. See R.P. Buckley (tr) and ‘Abd al-Raḥmān b. Naṣr al-Shayzarī, The Book of the Islamic Market Inspector: Nihāyat al-Rutba fī Ṭalab al-Ḥisba (Oxford University Press, Oxford 1999) 1:28; Abū al-Ḥasan ‘Alī b. Muḥammad b. Ḥabīb al-Māwardī, al-Aḥkām al-Sulṭāniyyah wa al-Wilāyāt al-Dīniyyah (Dār al-Kutub al-‘Ilmiyyah, Beirut 1985) 100.

 

[21] Shams al-Dīn Muḥammad b. Aḥmad b., ‘Uṯmān al-Dhahabī, Siyar A‘lām al-Nubalā’ (4th edn Mu’assasat al-Risālah, Beirut 1986) 19:190. In some sources, this statement is attributed to Imām ‘Alī and not the Prophet.

 

[22] Abū Muḥammad ‘Alī b. Sa‘īd b. Ḥazm (d. 456/1064) in E. Levi-Provencal (ed), Jamharat Ansāb al-‘Arab (Dār al-Ma‘ārif, Cairo 1948) 401. Also see Abū Ja‘far Muḥammad b. Jarīr al-Ṭabarī, Ta’rīkh al-Umam wa al-Mulūk (Mu’assasat ‘Izz al-Dīn, Beirut 1987) 5:141f.; Abū al-Ḥasan ‘Alī b. Abī al-Karam b. ‘Abd al-Wāḥid Ibn al-Aṯīr (d. 630/1233) in Abū al-Fidā’ ‘Abd Allāh al-Qāḍī (ed), al-Kāmil fī al-Ta’rīkh (Dār al-Kutub al-‘Ilmiyyah, Beirut 1986) 3:336.

 

[23] This argument is supported by the fact that the rebellion of the Khawārij took place in the context of an over all search for legitimacy and legality after the death of the Prophet. Furthermore, the research of some scholars on the dogma and symbolism of the early rebellions lends support to this argument. See Hishām Ja’īṭ, al-Fitnah: Jadaliyyat al-Dīn wa al-Siyāsah fī al-Islām al-Mubakkir (Dār al-Ṭalī‘ah, Beirut 1989).

 

[24] Muḥammad b. ‘Alī b. Muḥammad al-Shawkānī, Nayl al-Awṭār Sharḥ Muntaqā al-Akhbār (Dār al-Ḥadīth, Cairo n.d.) 7:166; Shihāb al-Dīn Ibn Ḥajar al-‘Asqalānī, Fatḥ al-Bārī bi-Sharḥ Ṣaḥīḥ al-Bukhārī (Dār al-Fikr, Beirut 1993) 14:303.

 

[25] Abū al-Ma‘ālī al-Juwaynī (d. 478/1085) in Muṣṭafā Ḥilmī and Fu’ād Aḥmad (ed), Ghiyāth al-Umam fī Iltiyāṯ al-Zulam (Dār al-Da‘wā, Alexandria 1978) 15.

 

[26] Shams al-Dīn Abū Bakr Ibn Qayyim al-Jawziyyah in ‘Abd al-Raḥmān al-Wakīl (ed), I‘lām al-Muwaqqi‘īn ‘an Rabb al-‘Ālamī (Maktabat Ibn Taymiyyah, Cairo n.d.) 4:452.

 

[27] Barakāt (n 14) 116; Sharaf and Muḥammad (n 15) 377, 380f., 514f.; Abū Ḥāmid al-Ghazālī, al-Iqtiṣād fī al-I‘tiqād (n.p., Cairo 1902 C.E. /1320 A.H.) 106.

 

[28] Ibn Abī al-Rabī‘ was reportedly influenced by Neo-Platonist thought.

 

[29] Sharaf and Muḥammad (n 15) 209, 212; Barakāt (n 14) 107; Riḍwān al-Sayyid, al-Ummah wa al-Jamā‘a wa al-Sulṭah (n.p., Beirut 1984) 207f.; ‘Alī b. Muḥammad al-Māwardī in Muṣṭafā al-Saqqa (ed), Adab al-Dunyā wa al-Dīn (n.p., Cairo 1950) 116-127.

 

[30] Sharaf and Muḥammad (n 15) 213.

 

[31] Abū Ya‘lā (n 18) 196, 199; al-Ghazālī (n 18) 135-137; al-Māwardī (n 29) 5.

 

[32] ‘Abd Allāh b. Muslim b. Qutayba (attributed) (d. 276/889) in al-Zinī Ṭāha (ed), al-Imāmah wa al-Siyāsah (Mu’assasat al-Ḥalabī, Cairo 1967) 21. This book is traditionally known as Ta’rīkh al-Khulafā’.

 

[33] ‘Alī b. Muḥammad al-Māwardī, al-Aḥkām al-Sulṭāniyyah (Muṣṭafā al-Ḥalabī, Cairo 1966) 15.

 

[34] Al-Baghdādī, al-Misbāḥ (n 16) 1:93. On the juristic challenges to governmental claims of divine sovereignty or sacred authority, see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press, Cambridge 2001) 8ff.

 

[35] Mubārak al-Baghdādī (tr), Qamar al-Dīn Khān, Ibn Ṭaymiyyah (Maktabat al-Falāḥ, Kuwait 1973) 102-122.

 

[36] Khan (n 35) 178.

 

[37] Al-Bāqillānī, ‘al-Tawḥīd fī al-Radd’ in Yūsuf Ībish (n 15). On Bāqillānī′s political thought see Yusuf Ibish, The Political Doctrine of al-Bāqillānī (American University of Beirut, Beirut 1966).

 

[38] Ibish (n 37) 99.

 

[39] Al-Bāqillānī (n 37) 76.

 

[40] Watt (n 15) 58; Lambton (n 15) 19, 37.

 

[41] Muḥammad ‘Imāra, al-Islām wa Falsafat al-Ḥukm (n.p., Beirut 1979) 431f.

 

[42] Fatḥī ‘Uṯmān, Min Uṣūl al-Fikr al-Siyāsī al-Islāmī (Mu’assasat al-Risālah, Beirut 1979) 402.

 

[43] Al-Ghazālī (n 18) 177.

 

[44] Al-Māwardī (n 29) 6; al-Juwaynī (n 25) 50f.

 

[45] Al-Juwaynī (n 25) 49, 50f.; al-Māwardī (n 29) 6f.; al-Bāqillānī (n 37) 49; ‘Uṯmān (n 42) 407-409; al-Ghazālī (n 18) 177; Khan, (n 35) 178. Abū Ya‘lā (n 15) 19. Some jurists added that under all circumstances, the Caliph cannot be the one to appoint ahl al-‘aqd, see, Abū Ya‘lā (n 18) 245.

 

[46] Al-Juwaynī (n 25) 55-57. Also see, al-Bāqillānī (n 37) 48f.; ‘Imāra (n 41) 439; ‘Abd al-Qādir al-Baghdādī, ‘Kitāb Uṣūl al-Dīn’ in Yūsuf Ībish (n 15) 132f.

 

[47] ‘Imāra (n 41) 435.

 

[48] For instance see, al-Baghdādī, ‘Kitāb’ (n 46) 132f.; Lambton (n 15) 18.

 

[49] On the Constitution of Medina, see, Frederick Denny, ‘Ummah in the Constitution of Medina’ (1977) 36 (1) J. Near Eastern S 39,47; Moshe Gil, ‘The constitution of Medina: a reconsideration’ (1974) 4 Israel Oriental S 44,65; Akira Goto, ‘The Constitution of Medina’ (1982) 18 Orient: Report of the Society for Near Eastern S in Japan 1,17; Ḥusayn Mu’nis, Dustūr Ummat al-Islām: Dirāsah fī Uṣūl al-Ḥukm wa Ṭabī’atihi wa Ghāyatihi ‘inda al-Muslimīn (Dār al-Irshād, Cairo 1993); Uri Rubin, ‘The “Constitution of Medina”: Some Notes’ (1986) 62 Studia Islamica 5,23; R.B. Serjeant, ‘The “Constitution of Medina”’ (1964) 8 (1-2) The Islamic Q 3,16; idem ‘The Sunnah Jāmi’ah, Pacts with the Yatrib Jews, and the Taḥrīm of Yatrib: Analysis and Translation of the Documents Comprised in the So-Called ‘Constitution of Medina’ (1978) 41 (1) Bulletin of the School of Oriental and African S 1, 42; Watt (n 15) 130-134.

 

[50] Ibn Qayyim al-Jawziyyah (n 18) 1:10.

 

[51] Qur’ān, 3:159, 42:38.

 

[52] ‘Abd al-Wahhāb Khallāf, ‘Ilm Uṣūl al-Fiqh (Dār al-Qalam, Kuwait 1981) 59.

 

[53] Jalāl al-Dīn al-Suyūṭī (d. 911/1505) in Ibrāhīm Abū al-Faḍl (ed), Ta’rīkh al-Khulafā’ (Dār al-Nahḍa, Cairo 1976) 109.

 

[54] Jalāl al-Dīn al-Suyūṭī (n 53) 325.

 

[55] ‘Imārah (n 41) 651; Abū ‘Uṯmān b. Baḥr al-Jāḥiẓ, Rasā’il al-Jāḥiẓ: Rasā’il al-Siyāsah (1st edn Dār Maktabat al-Hilāl, Beirut n.d.) 396-397. On the role of concept of shūrā in early Islamic politics see Ja’īṭ (n 23) 114, 210-213.

 

[56] A jurist of the highest–ranking, capable of deciding de novo issues of law. Al-Ghazālī also argues that a Caliph need not be a mujtahid as long as he regularly consults the jurists.

 

[57] Al-Ghazālī (n 18) 191, 193; Sharaf and Muḥammad (n 15) 399-403. On consulting the jurists also see, Ibn al-Jawzī (n 16) al-Shifā′ 55, Abū Ya‘lā, (n 18) 221; Sharaf and Muḥammad (n 15) 351, who discuss the thought of the Seljuq wazīr, Niẓām al-Mulk (d. 485/1092).

 

[58] Al-Ghazālī (n 18) 186, 191; Sharaf and Muḥammad (n 15) 399-403.

 

[59] Debates on individual rights raise questions about the nature, foundations, and universality of such rights. The historical discontinuities of individual rights suggest that, despite the absolutist – moral overtones of some rights – talk, individual rights are the product of complex historical processes. See, Austin Sarat and Thomas R. Kearns (eds), Legal Rights: Historical and Philosophical Perspectives (The University of Michigan Press, Ann Arbor 1997); Louis Henkin, The Age of Rights (Columbia University Press, New York 1990); S.I. Benn and R.S. Peters, The Principles of Political Thought: Social Foundations of the Democratic State (reprint Free Press, New York 1966) 101-120; Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (Rowman & Allanheld Publishers, Totowa, New Jersey 1985).

 

[60] For an unpersuasive attempt, see Mohammad Hashim Kamali, Freedom of Expression in Islam (rev. edn Islamic Texts Society, Cambridge 1997). For a more compelling conception of rights in the Islamic tradition see, Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism (Oxford University Press, Oxford 2001).

 

[61] Abū Ḥāmid Muḥammad b. Muḥammad al-Ghazālī in Ibrāhīm Muḥammad Ramaḍān (ed), al-Mustaṣfā min ‘Ilm al-Uṣūl (Dār al-Arqam, Beirut n.d) 1:286f.; Fakhr al-Dīn al-Rāzī Muḥammad b. ‘Umar b. al-Ḥusayn (d. 606/1209) in Ṭāhā Jābir Fayyāḍ al-‘Alwānī (ed), al-Maḥṣūl fī ‘Ilm Uṣūl al-Fiqh (3rd edn Mu’assasat al-Risālah, Beirut 1997) 5:159f.; Abū Isḥāq Ibrāhīm b. Mūsā al-Shāṭibī (d. 790/1388) in ‘Abd Allāh Darāz and Muḥammad ‘Abd Allāh Darāz (eds), al-Muwāfaqāt fī Uṣūl al-Fiqh (Dār al-Kutub al-‘Ilmiyyah, Beirut n.d.) 2:7f.; Shihāb al-Dīn Abū al-‘Abbās Aḥmad b. Idrīs al-Qarāfī (d. 684/1285) in Ṭāhā ‘Abd al-Ra’ūf Sa‘d (ed), Sharḥ Tanqīḥ al-Fuṣūl fī Ikhtiṣār al-Maḥṣūl fī al-Uṣūl (Dār al-Fikr, Beirut 1973) 391; Muḥammad Abū Zahrah, Uṣūl al-Fiqh (Dār al-Fikr al-‘Arabī, Cairo n.d.) 291-293; Zakī al-Dīn Sha‘bān, Uṣūl al-Fiqh al-Islāmī (Maṭba‘at Dār al-Ta’līf, Egypt 1965) 382; Wahbah al-Zuḥaylī, al-Wasīṭ fī Uṣūl al-Fiqh al-Islāmī (2nd edn Dār al-Fikr, Beirut 1969) 500f.; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (rev. edn Islamic Texts Society, Cambridge 1991) 271-273.

 

[62] Muḥammad ‘Ubayd Allāh al-As‘adī, al-Mūjaz fī Uṣūl al-Fiqh (Dār al-Salām, n.p. 1990) 247; Badrān Abū al-‘Aynayn Badrān, Uṣūl al-Fiqh (Dār al-Ma‘ārif, Cairo 1965) 430f.; Zakariyyā al-Birrī, Uṣūl al-Fiqh al-Islāmī (3rd edn Dār al-Nahḍah al-‘Arabiyyah, Cairo 1974) 144f.; al-Zuḥaylī (n 61) 498f.; Abū Zahrah (n 61) 291-293; ‘Alī Ḥasab Allāh, Uṣūl al-Tashrī‘ al-Islāmī (3rd edn Dār al-Ma‘ārif, Cairo 1964) 260; Sha‘bān (n 61) 382-384; Kamali (n 61) 271f.

 

[63] See, Khaled Abou El Fadl, ‘Tax Farming in Islamic Law (Qibālah and amān of Kharāj): A Search for a Concept’ (1992) 31 (1) Islamic Studies 5-32.

 

[64] See, Abou El Fadl (n 15).

 

[65] Jalāl al-Dīn ‘Abd al-Raḥmān al-Suyūṭī, al-Ashbāh wa al-Naẓā’ir fī Qawā‘id wa Furū‘ Fiqh al-Shāfi‘iyyah (Dār al-Kutub al-‘Ilmiyyah, Beirut 1983) 53; ‘Alī Aḥmad al-Nadhwī, al-Qawā‘id al-Fiqhiyyah (3rd edn Dār al-Qalam, Damascus 1994) 400f.; Aḥmad b. Muḥammad al-Zarqā, Sharḥ al-Qawā‘id al-Fiqhiyya (4th ed. Dār al-Qalam, Damascus 1996) 369-389; Ṣubḥī Maḥmaṣānī, Falsafat al-Tashrī‘ fī al-Islām (3rd edn Dār al-‘Ilm li-al-Malāyīn, Beirut 1961) 294.

 

[66] Ibn Ḥajar al-‘Asqalānī (n 24) 14:308; al-Shawkānī (n 24) 7:168.

 

[67] See Abū Isḥāq Burhān al-Dīn b. Muḥammad b. Mufliḥ, al-Mubdi‘ fī Sharḥ al-Muqni‘ (al-Maktab al-Islāmī, Beirut 1980) 9:168; Abou El Fadl (n 15).

 

[68] Muslim jurists, however, did not consider the severing of hands or feet as punishment for theft and banditry to be mutilation. Jalāl al-Dīn al-Suyūṭī, al-Durr al-Manṯūr fī al-Tafsīr bi-al-Ma’ṯūr (Maṭba‘at al-Anwār al-Muḥammadiyyah, Cairo n.d.) 2:305f.; Abū al-Fidā’ al-Ḥāfiẓ Ibn Kathīr al-Dimashqī, Tafsīr al-Qur’ān al-‘Aẓīm (Dār al-Khayr, Beirut 1990) 2:56f.; Abū Bakr Aḥmad b. ‘Alī al-Rāzī al-Jaṣṣāṣ, Aḥkām al-Qur’ān (Dār al-Kitāb al-‘Arabī, Beirut 1986) 2:407f.; Aḥmad b. Muḥammad al-Ṣāwī, Hāshiyat al-‘Allāmah al-Ṣāwī ‘alā Tafsīr al-Jalālayn (Dār Iḥyā’ al-Turāṯ al-‘Arabī, Beirut n.d.) 1:280; Abū al-Faḍl Shihāb al-Dīn al-Sayyid Maḥmūd al-Alūsī, Rūḥ al-Ma‘ānī fī Tafsīr al-Qur’ān al-‘Aẓīm wa al-Sab‘ al-Maṯānī (Dār Iḥyā’ al-Turāṯ al-‘Arabī, Beirut 1985) 6:121f.; Abū Ja‘far Muḥammad b. Jarīr al-Ṭabarī, Jāmi‘ al-Bayān fī Tafsīr al-Qur’ān (Dār al-Ma‘rifah, Beirut 1989) 5:134f.; ‘Imād al-Dīn b. Muḥammad al-Ṭaba’ī al-Kiyā al-Harāsī, Aḥkām al-Qur’ān (Dār al-Kutub al-‘Ilmiyyah, Beirut 1985) 3:65; Abū Bakr Muḥammad b. ‘Abd Allāh b. al-‘Arabī (d. 543/1148) in ‘Alī Muḥammad al-Bajāwī (ed), Aḥkām al-Qur’ān (Dār al-Jīl, Beirut 1987) 2:594; Abū ‘Abd Allāh Muḥammad b. Aḥmad al-Anṣārī al-Qurṭubī, al-Jāmi‘ li-Aḥkām al-Qur’ān (n.p., Cairo 1952) 6:149f.; ‘Abd al-Raḥmān b. Muḥammad b. Makhlūf al-Ṯa‘ālabī, al-Jawāhir al-Ḥisān fī Tafsīr al-Qur’ān (Mu’assasat al-A‘lamī li-al-Maṭbū‘āt, Beirut n.d.) 1:459; Quṭb al-Dīn Sa‘īd b. Hibat Allāh al-Rāwandī (d. 589/1193) in al-Sayyid Aḥmad al-Ḥusaynī (ed), Fiqh al-Qur’ān (Maṭba‘at al-Wilāyah, 1984 C.E./1405 A.H.) 1:366; Abū Muḥammad ‘Alī b. Aḥmad b. Sa‘īd Ibn Ḥazm in ‘Abd al-Ghaffār Sulaymān al-Bandārī (ed), al-Muḥallā bi-al-Āthār (Dār al-Kutub al-‘Ilmiyyah, Beirut n.d.) 12:285-288; Abou El Fadl (n 15).

 

[69] A considerable number of jurists in Islamic history were persecuted and murdered for holding that a political endorsement (bay‘ah) obtained under duress is invalid. Muslim jurists described the death of these scholars under such circumstances as a death of muṣābarah. This had become an important discourse because Caliphs were in the habit of either bribing or threatening notables and jurists in order to obtain their bay‘ah. See, Ibn Khaldūn, al-Muqaddimah, 165; Khaled Abou El Fadl, The Islamic Law of Rebellion: The Rise and Development of the Juristic Discourses on Insurrection, Insurgency and Brigandage (Ph.D. diss., Princeton University, 1999) 86f. On the Islamic law of duress and on coerced confessions and political commitments, see, Khaled Abou El Fadl, ‘Law of Duress in Islamic Law and Common Law: A Comparative Study’ (1991) 30 (3) Islamic S 305, 350.

 

[70] Abū Bakr Aḥmad b. ‘Amr b. Munīr al-Shaybānī al-Khaṣṣāf (d. 261/874) in Farḥāt Ziyādah (ed), Kitāb Adab al-Qāḍī (American University of Cairo Press, Cairo 1978) 364f.; Abū al-Ḥasan ‘Alī b. Muḥammad b. Ḥabīb al-Māwardī in Muḥyī Hilāl al-Sarḥān (ed), Adab al-Qāḍī (Baghdad: Maṭba‘at al-Irshād, 1971) 1:233; idem, al-Aḥkām (n 15), 58; Abū al-Qāsim ‘Alī b. Muḥammad al-Raḥbī al-Simnānī, Rawḍat al-Quḍāh wa Ṭarīq al-Najāḥ (Mu’assasat al-Risālah, Beirut 1984) 1:157-8; al-Shaīkh Nidam, al-Fatāwā al-Hindiyyah (Dār Iḥyā’ al-Turāṯ al-‘Arabī, Beirut 1986) 6:430; Fakhr al-Dīn ‘Uṯmān b. ‘Alī al-Zayla‘ī, Tabyīn al-Ḥaqā’iq Sharḥ Kanz al-Daqā’iq (Dār al-Kitāb al-Islāmiyyah, Medina n.d.) 3:240.

 

[71] Some modern Muslim commentators tried to equate the rights of God with the idea of public rights. Muhammad Abu-Hassan, ‘Islamic Criminal Law’ in Gerald E. Lampe (ed), Justice and Human Rights in Islamic Law (International Law Institute, Washington, D.C. 1997) 79f., 81f.; Shaikh Shaukat Hussain, Human Rights in Islam (Kitab Bhavan, New Delhi 1990) 38f.; Kamali (n 60) 10. This argument is untenable and it is based on misunderstanding the theory behind the concept of God’s rights. For a Muslim critique of God’s rights as the equivalent of public rights, see Fazlur Rahman, ‘The Concept of Ḥadd in Islamic Law’ (1965) 4 (3) Islamic S 237, 247-249, 251.

 

[72] Abū Zahra (n 61) 256-258; Bernard G. Weiss, The Spirit of Islamic Law (Athens, Georgia: University of Georgia Press, 1998) 181-184; Kamali (n 61) 348-350.

 

[73] Abū Bakr Muḥammad b. ‘Abd Allāh b. al-‘Arabī in ‘Alī Muḥammad al-Bajāwī (ed), Aḥkām al-Qur’ān (Beirut: Dār al-Ma‘rifah, n.d.) 2:603; Khaled Abou El Fadl, Conference of the Books (Lanham, Maryland: University Press of America, 2001) 105-108. See also, Abū ‘Abd Allāh Muḥammad b. Aḥmad al-Anṣārī al-Qurṭubī, al-Jāmi‘ li-Aḥkām al-Qur′ān (Beirut: Dār al-Kutub al-‘Ilmiyyah, 1993) 6:103; Taqī al-Dīn Aḥmad b. ‘Abd al-Ḥalīm Ibn Taymiyyah, al-Siyāsah al-Shar‘iyyah fī Iṣlāḥ al-Rā‘ī wa al-Ra‘iyyah (Beirut: Dār al-Kutub al-‘Ilmiyyah, 1988) 65-144; Ḥasab Allāh (n 62) 293-297; Aḥmad Farrāj Ḥusayn, Uṣūl al-Fiqh al-Islāmī (Lebanon: al-Dār al-Jāmi‘iyyah, 1986) 405-415; Lambton (n 15) 19f.

 

[74] Abū Muḥammad Maḥmūd b. Aḥmad al-‘Ayīnī, al-Bināyah fī Sharḥ al-Hidāyah (Beirut: Dār al-Fikr, 1990) 6:482.

 

[75] Azizah al-Hibri, ‘Islamic and American Constitutional Law: Borrowing Possibilities or a History of Borrowing?’ (1999) 1 University of Pennsylvania Journal of Constitutional Law 492-527.

[76] The four surviving Sunni schools of law and legal thought are the Ḥanafī, Mālikī, Shāfi‘ī, and Ḥanbalī schools. On the history of these schools, as well as those which are now extinct, such as the Ṭabarī and Ẓāhirī schools, see, Christopher Melchert, The Formation of the Sunni Schools of Law, 9th – 10th Centuries C.E. (Leiden: Brill, 1997). On the organization, structure, and curriculum of legal learning, see George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981).

 

[77] The literature on the history, theory, and practices of secularism is vast. Most theoretical treatments understandably have remained wedded to the Western historical experience. See, Kriegel (n 4) 123-134; Horace M. Kallen, Secularism Is the Will of God: An Essay in the Social Philosophy of Democracy and Religion (Twayne Publishers, Inc., New York 1954); Harvey Cox, The Secular City: Secularization and Urbanization in Theological Perspective (Macmillan Co., New York 1965); Daniel Callahan (ed), The Secular City Debate (Macmillan Co., New York 1966).

 

[78] Christian Duquoc (ed), Secularization and Spirituality (Paulist Press, New York 1969); Seyyed Hossein Nasr, Islam and the Plight of Modern Man (Longman, London 1975); Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, New York 1993); Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Scholars Press, Atlanta, Georgia 1993); Timothy L. Fort, Law and Religion (McFarland & Co., Jefferson, North Carolina 1987); Kent Greenawalt, Private Consciences and Public Reasons (Oxford University Press, Oxford 1995); John Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford 1980); Milner S. Ball, The Word and the Law (University of Chicago Press, Chicago 1993).

 

[79] After the evacuation of the French in Egypt in 1801, ‘Umar Makram, with the assistance of the jurists overthrew the French agent left behind. Instead of assuming power directly, the jurists offered the government to the Egyptianized Albanian Muḥammad ‘Alī. See Afaf Lutfi al-Sayyid Marsot, ‘The Ulama of Cairo in the Eighteenth and Nineteenth Century’ in Nikki Keddi (ed), Scholars, Saints, and Sufis (University of California Press, Berkeley 1972) 149-165, 162f.

 

[80] Marsot (n 79) 149.

 

[81] Marsot (n 79) 150. For an exhaustive study on the role of the ‘ulamā’ in legitimating rulers and rebellions through the use of their moral weight, see Abou El Fadl (n 15). On the social and political roles played by the ‘ulamā′, see Edward Mortimer, Faith and Power: The Politics of Islam (Vintage Books, New York 1982) 299-307; Malcolm H. Kerr, Islamic Reform: The Political and Legal Theories of Muḥammad ‘Abduh and Rashīd Riḍā (University of California Press, Berkeley and Los Angeles 1966) 196; Louis J. Cantori, ‘Religion and Politics in Egypt’ in Michael Curtis (ed), Religion and Politics in the Middle East (Westview Press, Boulder, Colorado 1981) 77-90.

 

[82] Marsot (n 79) 159.

 

[83] Daniel Crecelius, ‘Egyptian Ulama and Modernization’ in Keddi (n 79) 167-209, 168. Crecelius makes this point about the ‘ulamā′ of Egypt in the modern age. However, see Fouad Ajami, ‘In the Pharaoh's Shadow: Religion and Authority in Egypt’ in James Piscatori (ed), Islam in the Political Process (Cambridge University Press, London 1983) 18; Mortimer (n 81) 91, 95; Malise Ruthven, Islam in the World (Oxford University Press, Oxford 1984) 179. Of course, there are notable exceptions in the contemporary Islamic practice. Many clerics become prominent opponents of the present Muslim regimes, and suffer enormously for their troubles.

 

[84] On the idea of the praetorian state, see Amos Perlmutter, Egypt: The Praetorian State (Transaction Books, New Brunswick 1974). Also see Khaled Abou El Fadl, ‘Orphans of Modernity and the Clash of Civilisations.’ (2002) 4 (2) Global Dialogue 1, 16.

 

[85] I am simplifying this sophisticated doctrine in order to make a point. Muslim jurists engaged in lengthy attempts to differentiate between the two concepts of Sharī‘ah and fiqh. See Maḥmaṣānī (n 65) 21-24, 199f.; Weiss (n 72) 119-121; Abū Zahrah (n 61) 291; Muṣṭafā Zayd, al-Maṣlaḥah fī al-Tashrī‘ al-Islāmī wa Najm al-Dīn al-Ṭūfī (2nd edn Dār al-Fikr al-‘Arabī, Cairo 1964) 22; Yūsuf Ḥāmid al-‘Ālim, al-Maqāṣid al-‘Āmmah li-al-Sharī‘ah al-Islāmiyyah (International Institute of Islamic Thought, Herndon, Virginia 1991) 80; Muḥammad b. ‘Alī b. Muḥammad al-Shawkānī, Ṭalab al-‘Ilm wa Ṭabaqāt al-Muta‘allimīn: Adab al-Ṭalab wa Muntahā al-‘Arab (Dār al-Arqām, n.p. 1981) 145-151.

 

[86] The Arabic is ‘kull mujtahid muṣīb’ and ‘li-kull mujtahid naṣīb’. See Abū al-Ḥusayn Muḥammad b. ‘Alī b. al-Ṭayyib al-Baṣrī, al-Mu‘tamad fī Uṣūl al-Fiqh (Dār al-Kutub al-‘Ilmiyyah, Beirut 1983) 2:370-372; ‘Alā’ al-Dīn ‘Abd al-‘Azīz b. Aḥmadī al-Bukhārī (d. 730/1329) in Muḥammad al-Mu‘taṣim bi-’llāh al-Baghdādī (ed), Kashf al-Asrār ‘an Uṣūl Fakhr al-Islām al-Bazdāwī (3rd edn Dār al-Kitāb al-‘Arabī, Beirut 1997) 4:30-55; Abū Ḥāmid al-Ghazālī (n 61) 2:363-367; Abū al-Ma‘ālī ‘Abd al-Malik b. ‘Abd Allāh b. Yūsuf al-Juwaynī, Kitāb al-Ijtihād min Kitāb al-Talkhīṣ (Dār al-Qalam, Damascus 1987) 26-32; Abū Muḥammad ‘Alī b. Aḥmad b. Sa‘īd b. Ḥazm, al-Iḥkām fī Uṣūl al-Aḥkām (Dār al-Ḥadīṯ, Cairo 1984) 5:68-81, 8:589-592; Muḥammad b. Aḥmad b. ‘Abd al-‘Azīz b. ‘Alī al-Fatūḥī Ibn al-Najjār (d. 972/1564) in Muḥammad al-Zuḥaylī and Nazīr Ḥammād (eds), Sharḥ al-Kawkab al-Munīr al-Musammā Mukhtaṣar al-Taḥrīr aw al-Mukhtabar al-Mubtakar Sharḥ al-Mukhtaṣar fī Uṣūl al-Fiqh (Maktabat al-‘Ubaykān, Riyadh 1993) 4:488-492; Abū Bakr Aḥmad b. ‘Alī b. Ṯābit al-Khaṭīb al-Baghdādī, Kitāb al-Faqīh wa al-Mutafaqqih wa Uṣūl al-Fiqh (Zakariyyā ‘Alī Yūsuf, Cairo 1977) 245-250; Abū al-Ṯanā’ Maḥmūd b. Zayd al-Lāmishī (d. 539/114) in ‘Abd al-Majīd Turkī (ed), Kitāb fī Uṣūl al-Fiqh (Dār al-Gharb al-Islāmī, Beirut 1995) 201f.; al-Qarāfī (n 61) 438-441; Fakhr al-Dīn al-Rāzī (n 61) 6:29-36; Muḥammad b. ‘Alī b. Muḥammad al-Shawkānī, Irshād al-Fuḥūl ilā Taḥqīq al-Ḥaqq min ‘Ilm al-Uṣūl (Dār al-Kutub al-’Ilmiyyah, Beirut n.d.) 383-389; Abū Isḥāq Ibrāhīm b. ‘Alī b. Yūsuf al-Fayrūzābādī al-Shīrāzī (d. 476/1083) in ‘Abd al-Majīd Turkī (ed), Sharḥ al-Lum’ah (Dār al-Gharb al-Islāmī, Beirut 1988) 2:1043-1071; idem in Muḥammad Ḥasan Haytū (ed), al-Tabṣirah fī Uṣūl al-Fiqh (Dār al-Fikr, Damascus 1980) 496-508. In this context, Muslim jurists also debated a report attributed to the Prophet in which he says, ‘whoever performs ijtihād and is correct will be rewarded twice and whoever is wrong will be rewarded once.’ See Jalāl al-Dīn ‘Abd al-Raḥmān b. Abī Bakr al-Suyūṭī in ‘Abd al-Qayyūm Muḥammad Shafī‘ al-Basṭawī (ed), Ikhtilāf al-Madhāhib (Dār al-I‘tiṣām, Cairo 1983 C.E./1404 A.H.) 38. Ibn Ḥazm (n 86) 5:73f., 8:591; idem in Muḥammad Ṣubḥī Ḥasan Ḥallāq (ed), al-Nubadh fī Uṣūl al-Fiqh al-Ẓāhirī (Dār Ibn Ḥazm, Beirut 1993) 119f.; Abū al-Ḥasan ‘Alī b. ‘Umar Ibn al-Qaṣṣār (d. 397/1007) in Muḥammad b. al-Ḥusayn al-Sulaymānī (ed), al-Muqaddimah fī al-Uṣūl (Dār al-Gharb al-Islāmī, Beirut 1996) 114f.; Maḥfūẓ b. Aḥmad b. al-Ḥasan Abū al-Khaṭṭāb al-Kalūzānī, (d. 510/1116) in Muḥammad b. ‘Alī b. Ibrāhīm (ed), al-Tamhīd fī Uṣūl al-Fiqh (Markaz al-Baḥṯ al-‘Ilmī wa Iḥyā’ al-Turāṯ al-Islāmī, Mecca 1985) 4:317f.; al-Qarāfī (n 61) 440; Abū ‘Abd Allāh Muḥammad b. Idrīs al-Shāfi‘ī, (d. 204/820) in Aḥmad Muḥammad Shākir (ed), al-Risālah (Dār al-Fikr, n.p. n.d.) 49 4; al-Shīrāzī (n 86) al-Tabṣirah, 499; Muḥammad b. ‘Abd al-Ḥamīd al-Asmandī (d. 552/1157) in Muḥammad Zakī ‘Abd al-Barr (ed), Badhl al-Naẓar fī al-Uṣūl (Maktabat Dār al-Turāṯ, Cairo 1992) 702f.

 

[87] For discussions of the two schools, see al-Bukhārī (n 86) 4:18; Abū Ḥāmid Muḥammad b. Muḥammad al-Ghazālī, al-Mankhūl min Ta‘līqāt al-Uṣūl (Dār al-Fikr, Damascus 1980) 455; idem (n 61) 2:550f.; Fakhr al-Dīn Muḥammad b. ‘Umar b. al-Ḥusayn al-Rāzī, al-Maḥṣūl fī ‘Ilm Uṣūl al-Fiqh (Dār al-Kutub al-‘Ilmiyyah, Beirut 1988) 2:500-508; al-Qarāfī (n 61) 438; al-Zuḥaylī (n 61) 638-655; Ḥasab Allāh (n 62) 82f.; Badrān (n 62) 474.

 

[88] Al-Juwaynī (n 86) 50f.

 

[89] Al-Juwaynī (n 86) 61.

 

[90] Sayf al-Dīn Abū al-Ḥasan ‘Alī b. Abī ‘Alī b. Muḥammad al-Āmidī (d. 630/1233) in ‘Abd al-Razzāq ‘Afīfī (ed), al-Iḥkām fī Uṣūl al-Aḥkām (2nd edn al-Maktab al-Islāmī, Beirut 1981 C.E./1402 A.H.) 4:183; Jamāl al-Dīn Abī Muḥammad ‘Abd al-Raḥīm b. al-Ḥasan al-Asnawī, al-Tamhīd fī Takhrīj al-Furū‘ ‘alā al-Uṣūl (3rd edn Mu’assasat al-Risālah, Beirut 1984) 531-534; Muḥammad b. al-Ḥasan al-Badakhshī, Sharḥ al-Badakhshī Manāhij al-‘Uqūl ma‘a Sharḥ al-Asnawī Nihāyat al-Sūl (Dār al-Kutub al-‘Ilmiyyah, Beirut 1984) 3:275-281; Abū Ḥāmid al-Ghazālī (n 61) 2:375-378; al-Juwaynī (n 86) 41; Abū al-Ṯanā’ Maḥmūd b. Zayd al-Lāmishī in ‘Abd al-Majīd Turkī (ed), Kitāb fī Uṣūl al-Fiqh (Dār al-Gharb al-Islāmī, Beirut 1995) 202f.; al-Qarāfī (n 61) 440; Fakhr al-Dīn al-Rāzī (n 61) 6:34f., 6:43-50; Sha’bān (n 61) 418f.; Badrān, (n 62) 474; al-Zuḥaylī (n 61) 643.

 

[91] I deal with these two schools of thought more extensively elsewhere, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Publications, Oxford 2001).

 

[92] I am ignoring in this context the role of ijmā‘ (consensus) because of the complexity of the subject. Some modern Muslims have argued that the doctrine of consensus is the normative equivalent of majority rule. I think this is a gross oversimplification, and, at any case, majority rule, as explained, is not the same as constitutionalism.

 

[93] Contemporary Islamic discourses suffer from a certain amount of hypocrisy in this regard. Often, Muslims confront an existential crisis if the enforced, so-called Islamic laws result in social suffering and misery. In order to solve this crisis Muslims will often claim that there has been a failure in the circumstances of implementation. This indulgence in unnecessary apologetics could be avoided if the problematic idea of Sharī‘ah state law is abandoned.

 

[94] This proposal is nonsense unless the ‘ulamā’ regain their institutional and moral independence.

 

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