Khalid Abou al Fadl
The word khalifa (caliph), the title given to the Muslim leader, literally means successor or deputy. Early on Muslims debated whether it was appropriate to name the leader the Caliph of God (khalifat Allah), but most scholars preferred the designation Caliph of the Prophet of God (khalifat rasul Allah). But the Caliph—whether the Prophet’s successor or God’s deputy—did not enjoy the authority of either the Prophet or God whose powers of legislation, revelation, absolution, and punishment cannot be delegated to any other. But how much of the Prophet’s authority does the Caliph enjoy? And to whom does the Caliph answer?
If the Caliph’s primary obligation is to implement divine law, then arguably the Caliph answers only to God.
In Sunni theory the Caliphate must be based on a contract (‘aqd) between the Caliph and ahl al-hall wa al-‘aqd (the people who have the power of contract) who give theirbay‘a (allegiance or consent to the Caliph): the Caliph is to receive the bay‘a 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 include the obligation to apply God’s law and to protect Muslims and the territory of Islam; in return the ruler was promised the people’s support and obedience. The assumption has been that Shari‘ah law defines the terms of the contract.
Who are the people that have the power to choose and remove the ruler? The Mu‘tazili4 scholar Abu Bakr al-Asam (d. 200/816) argued that the public at large must have this power: The vast majority of Muslim jurists argued more pragmatically that ahl al-hall 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. In the dominant paradigm both ruler and ruled are God’s agents (khulafa’ Allah) in implementing the divine law.
As noted above, an essential characteristic of a legitimate Islamic government is that it is subject to and limited by Shari‘ah law. Once again, Islamic political thought contains a range of interpretive possibilities.
In asserting the supremacy of Shari‘ah, Muslim scholars typically were arguing that its positive commandments, such as punishment for adultery or the drinking of alcohol, ought to be honored by the government. But a government that declares its intention to abide by all the positive commandments of Shari‘ah may nevertheless manipulate the rules in order to obtain desired results. Under the pretense of guarding public modesty the government could pass arbitrary laws forbidding many forms of public assembly; under the guise of protection of orthodoxy it could pass arbitrary laws to punish creative expression; under the guise of protecting individuals from slander, it could suppress many forms of political and social criticism; and a government could imprison or execute political dissenters, claiming that they are sowing fitnah (discord and social turmoil). Arguably, all these governmental actions are Shari‘ah-compliant unless there is a clear sense of the limits imposed upon the ability of the government to service and promote even the Shari‘ah.
An important dimension to the challenge of establishing the rule of law is the complex relationship between Shari‘ah law, as articulated by jurists, and the administrative practices of the state or expediency laws (al-ahkam al-siyasiyyah). While in the first two centuries of Islam it was possible to find jurists citing the practices of the state as a normative precedent, this became increasingly rare. By the fourth/tenth century Muslim jurists had established themselves as the only legitimate authority empowered to expound the law of God. The practice of the state was not considered illegitimate, but only the Muslim jurists could settle the law. The state was expected to enforce divine laws, not to determine their content.
Still, as the enforcer of divine laws the state was granted broad discretion over matters of public interest (known as the field of al-siyasah al-Shar‘iyyah). State regulations were lawful and enforceable as long as they did not contravene the divine law, as expounded by the jurists, or constitute an abusive use of discretion (al-ta‘assuf fi masa’il al-khiyar). For this reason jurisprudential works meticulously documented the determinations of jurists but did not document state regulations, which were documented by state functionaries in works on the administrative practices of the state.
In addition, shortly after the death of the Prophet the concept of shura (consultative deliberations) had become a symbol signifying participatory politics and legitimacy. After the third/ninth century the concept of shura took more concrete institutional shape in the discourses of Muslim jurists. Shura became the formal act of consulting ahl al-shura (the people of consultation), who according to the juristic sources are the same group of people who constitute ahl al-‘aqd (the people who choose the ruler). Sunni jurists debated whether the results of the consultative process are binding (shura mulzima) or non-binding (ghayr mulzima).
The Islamic tradition of legal-political thought, then, suggests ideas of representation, consultation, and legal process. But the precise content of those ideas remains contested and provides no direct link between Islam and democracy.
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http://bostonreview.net/BR28.2/abou.html
Biography Khalid Abou al Fadl:
Khaled Abou El Fadl, a prominent Islamic jurist and American lawyer, is the Omar and Azmeralda Alfi Distinguished Fellow in Islamic Law at UCLA and author most recently of The Place of Tolerance in Islam. He trained in Islamic law in Egypt and Kuwait and is a high-ranking sheikh.
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