The concept of legislation and the idea of a legislative authority in the Islamic perspective are different from that in the perspective of other political ideologies. In both perspectives, laws are made to establish justice and prevent crime and harm.

In modern non-Islamic political ideologies, laws are made by man, and are generally based on morals and ethics that are established by culture, norms, and a general consensus. The problem with basing laws on culture, norms, and what society deems to be appropriate and inappropriate is the fact that these measurements of right and wrong change over time. The abolishment of capital punishment in a number of states in the US over the years, the legalization of gay marriage in some Western countries, the recent legalization of narcotics in a growing number of states in the US, and many more examples of changes in the laws of Western countries.

The Islamic concept of legislation places limits on what man may decide to be right and wrong. The Divine Word sets the border between that which is lawful and that which is unlawful.  As the Quran and the Sunnah are eternal scriptures, unaltered and unalterable, the fundamental laws derived from them are also unalterable.

Governance and judgment by what Allah has revealed (alhokm bema anzal Allah) is at the cornerstone of Shariah and an Islamic legislative system. The Quran clearly mentions the importance of judgment by what He has revealed in numerous verses.

And whoever does not judge by what Allah has revealed – then it is those who are the disbelievers. (5:44) [Translation: Sahih International]

And whoever does not judge by what Allah has revealed – then it is those who are the wrongdoers. (5:45) [Translation: Sahih International]

And whoever does not judge by what Allah has revealed – then it is those who are the defiantly disobedient. (5:47) [Translation: Sahih International]

Have you not seen those who claim to have believed in what was revealed to you, [O Muhammad], and what was revealed before you? They wish to refer legislation to Taghut [false deities], while they were commanded to reject it; and Satan wishes to lead them far astray.(4:60) [Translation: Sahih International]

Legislation is not but for Allah. He has commanded that you worship not except Him. That is the correct religion, but most people do not know. (12:40) [Translation: Sahih International]

Shariah and judgment by what Allah has revealed places both the ruler and subjects at an equal level before the law. It limits the authority of the ruler to the constraints of shariah as the following hadith mentions:

Allah’s Apostle (Peace and Blessings of Allah be upon him) said, “A Muslim has to listen to and obey (the order of his ruler) whether he likes it or not, aslong as his orders involve not one in disobedience (to Allah), but if an act of disobedience (to Allah) is imposed one should not listen to it or obey it. (Sahih Bukhari – The Book of Judgments)

The Quran also addresses the equality between the ruler and the subjects before Islamic law. In the same verse we are commanded to obey those in authority among us, we are also commanded that, should there be any dispute or disagreement over a matter, then we are to refer it to Allah (Quran) and Mohamed (Sunnah).

Given the complexity of modern society, and with advances in technology and transactions, more laws are needed to address the need for justice in today’s world. Within the scope of Islamic legislation, modern laws must fit the boundaries placed by shariah, and may even be based upon it. For instance, matters such as traffic laws (such as speed limits, staying within lanes) can be considered to place into laws the commandments regarding the sanctity of life in Islam and the protection of property from damage. Within a modern Islamic legislative system, laws pertaining to modern financial transactions must take into account the Islamic prohibition of usury in all its forms.

Shariah brings to stability and harmony what manmade legal systems have rendered changeable and unstable. It places both ruler and subject on an equal footing before the Divine Law.

With the ever-changing manmade measurements of justice and ethics, Shariah places an eternal and objective scale with which justice is truly applied.

Then is it the judgment of [the time of] ignorance they desire? But who is better than Allah in judgment for people who are certain [in faith]. (5:50) [Translation: Sahih International]

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What has been known in the modern world as the idea of the ministry has been known in the Muslim world and in Islamic political thought as the wezara, or the vizierate. Since the early days of Islam, Muslim caliphs have appointed trusted men to their side to advise and help them in the affairs of the realm. Due to the importance of this position of authority, Islamic scholars have addressed the aspects associated with the vizierate.

The famous scholar of Islamic political theory, Abu ElHassan ElMawardy, addressed the difference between the authority of the ruler and that of the vizier. The first difference, he mentioned, is that the vizier is obligated to inform the ruler about all he has done with regard to the management of the affairs. The second difference is the right of the ruler to review and revise the actions and the decisions of the vizier, so that he may acknowledge what he sees as right and change what disagrees with the ruler’s judgment.

ElMawardy mentioned that all actions that may be performed by the ruler may also be performed by the vizier except for three:

The ruler may appoint a successor, while this isn’t permissible for the vizier.

The ruler has the right to request to be relieved of his position by the nation, while the vizier, being appointed by the ruler, does not have that right.

The ruler has the right to dismiss someone appointed by the vizier, but the vizier cannot dismiss an appointee of the ruler.

ElMawardi, in his book AlAhkam AlSultaniya, divided the vizierate into two categories:

The vizierate of delegation (wezaret eltafweed) is a position appointed by the Muslim ruler. The ruler delegates the management of the affairs to the appointed vizier to manage according to the vizier’s conscientious judgment and opinion. ElMawardy mentions that the criteria for the vizierate of delegation are the same as that of the selection of the ruler, in addition to the criterion of efficiency in the affairs the vizier will be delegated to manage. He excluded from the criteria of the vizierate of delegation the criterion of lineage (which he listed as the last criterion for the selection of a ruler.  The criteria for the selection of a ruler according to ElMawardy are, briefly: 1: Justice, 2: Knowledge for good judgement, 3: Free of defects in the senses, 4: Free of physical defects or deformities that hinder movement, 5: Wisdom and proper opinion, 6: Bravery and courage, 7: Proper lineage.)

The executive vizierate (wezaret eltanfeez) is a position appointed by the ruler to carry out the ruler’s orders and commands. The characteristics of the executive vizierate, according to ElMawardy, are:

1. Fidelity
2. Honesty
3. Limited aspiration
4. Good relationship with the people
5. Masculinity (the vizier should be a man)
6. Intelligence and astuteness
7. Frugality (the vizier should not be a person who follows his desires)

ElMawardy differentiates between the rights of the executive vizierate and the vizierate of delegation in the following points. Unlike the executive vizierate, the vizierate of delegation may:

•  Directly rule and oversee the implementation of justice.
• Appoint magistrates.
• Manage military units and soldiers.
• Manage the spending of the treasury within the legal limits.

ElMawardy then lists the differences between the criteria for a vizierate of delegation and that of an executive vizierate. Unlike an executive vizierate, the vizierate of delegation must be

1.  Free (and not a slave).
2. A Muslim.
3. Aware of shariah rulings.
4. Knowledgeable in topics of war and financial expenditure.

 

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Perhaps the most important factor in the stability of any nation, after a strong executive power that may bring peace, is a fair and just judicial system that protects the rights and property of the people. The Islamic political theory has also touched on the matter of justice, its importance and its formation.

AlMawerdy, in his book AlAhkam AlSultaniya, addressed the topic of the judicial system in the chapter On the Mandate of the Judiciary (Position). ElMawerdy states that it is not permissible for anyone to assume a judiciary position unless he has fulfilled the 7 conditions for it. The 7 conditions he lists for the position of a judge are:

1. The individual must be a man: He must be a male and he must have passed the stage of puberty. ElMawerdy mentions, however, that Abu Hanifa stated that a woman may be a judge in the instances in which a woman’s testimony is accepted, and that she may not be a judge instances in which a woman’s testimony is not accepted.
2. The individual must be sane and rational.
3. The individual must be a free.
4. The individual must be a Muslim. With regards to this condition, ElMawerdy states that it is not permissible for a disbeliever to take up a judicial position neither over Muslims nor over disbelievers. Yet he also states that Abu Hanifa did allow disbelievers to take up judicial positions among people of his own faith. (i.e. a Christian being a judge between Christians, a Jew being a judge between Jews)
5.  The individual must be just: He must be honest, trustworthy, controlled when both during times of anger and satisfaction, as well as other traits that suggest the man has a good sense of justice and fairness.
6. The individual must be free of defects in his hearing and vision
7. The individual must be knowledgeable in the rulings and science of shariah. AlMawerdy states that the fundamentals of shariah rulings that the individual must know are 4:

1)      He must know the Quran so that he may know what it contains regarding rulings, and understand the various categories of rulings contained in the Quran.

2)      He must know the confirmed sunnah (traditions) of the Messenger of Allah (Peace and Blessings of Allah be Upon him)

3)      He must know the interpretations of the salaf (the predecessor scholars after the Prophet his companions), including what they reached a consensus upon and what they disagreed upon, so that he may follow the consensus, and use diligence to make a judgment on what was disagreed upon.

4)      He must have knowledge of analogy so that he may derive a ruling on something that has not been addressed based on similar matters.

ElMawerdy also addressed an issue related to the corruption of the judicial system, the giving of ‘gifts’ to judges. In his book, he states that it is not acceptable for one who has taken a judicial position to take a gift from a litigant, nor anyone working with him even if he is not a litigant. He also states that if the judge does accept a gift without giving the equivalent of the gift in return, then he should transfer it to Bait al Mal (the national treasury).

ElMawerdy advised in his book against the delaying of cases, and prohibited the overseeing of a judge in a case involving one of his parents or offspring.

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The most important factor in any political system is the relationship between the governing entity and the people. This relationship sets down the rights of the ruler and the people, as well as their responsibilities towards each other.

The Obligations of the Ruler

One of the oldest scholars who addressed the issue of the Islamic political system, ElMawerdy (972-1058 AD), tackled the issue of the rights and obligations of the Muslim ruler in his book AlAhkam AlSultaniya. He began addressing the matter by discussing the ruler’s duties and responsibilities, listing the protection of the religion as the first responsibility of the Muslim ruler. He stated that the ruler must protect the religion from any innovations, using logic and proof to refute falsehood and innovations, and using his rights and the limits Islam imposes on the people to protect Islam and the nation from any harm.

ElMawerdy mentioned that the resolving of conflicts between disputants was the Muslim ruler’s second responsibility. (Of course in modern political system, the judicial authorities are delegated with this responsibility.)

According to ElMawerdy, the ruler is responsible for the protection of the people from harm, the execution of the hudood (the punishments for transgressing the limits Allah has imposed in Islam), the fortification of the borders of the nation, jihad against those who oppose Islam, the collection and distribution of the spoils of war and charity, the appointment of executive officials, and directly engage in the affairs of the nation.

The Andalusian scholar and judge, ibn-AlAzraq(1427-1491 AD), listed 5 duties a ruler is obligated to perform:

1. The protection of the fundamentals of the religion
2. The execution of judgement between disputants
3. The execution of the hudood
4. The punishing and rebuking of those who deserve (to be punished)
5. The caring of ahl aldhimma (non-Muslims who agreed to live peacefully within a Muslim nation under Islamic rule)

Another Andulisian scholar, ibn Radwan alMalaqy (died 1381 AD), stated in his book AlShohob AlLame3a fe AlSiyasa AlNafi3a (The Illuminated Stars of Effective Politics) that there are 10 responsibilities and duties that must be performed by a Muslim ruler. Those 10 responsibilities are directly identitcal to ElMawerdy’s list, and go as follows:

1. The protection of the religion based on the things agreed upon by the scholars.
2. The execution of judgments and verdicts between disputants.
3. The protection of people from harm.
4. The execution of the hudood.
5. The fortification and protection of the frontlines and borders of the nation.
6. Jihad against those who oppose Islam.
7. The collection of the spoils of war and charity.
8. Managing the distribution of wealth.
9. The delegation of authority and the appointment of advisors.
10. The direct engagement in the affairs of the nation.

The late contemporary scholar AbdelAziz Ezzat AlKhayyat, mentioned in his book AlNizam AlSiyasy fe AlIslam (The Political System in Islam) 6 of the 10 ibn Radwan listed. He placed both the collection of the spoils of war and charity and the managent of the distribution of wealth as one item. He also paired the fortification and protection of the frontlines and borders of the nation with jihad against those who oppose Islam. The execution of judgements and verdicts was also joined with the protection of people and the execution of the hudood as one item in his list.

AlKhayyat states in AlNizam AlSiyasy that the scholars of Islam summarized the obligations of the ruler in the following phrase: The guarding of the religion and the management of worldly affairs. (Heraset aldeen wa siyasit elduniya.)

The Rights of the Ruler

After addressing the obligations of the ruler, AlKhayyat addressed the matter of the rights of the ruler. The first of these rights, he mentions, is the obedience of the nation to the ruler except when ordered to sin.  The Quranic verse AlKhayyat refers to with regards to this right is verse 59 of Surat AlNisa, which is translated (Yusuf Ali) as follows:

O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you.

AlKhayyat then goes to list what he considers being other rights of the ruler: The right to be advised privately or publicly, The right to be supported and aided, The right to be respected, The right to legislate (so long as it is within the limits of the shariah  and the consensus of the Muslims), The right to know the progress of his delegates, subjects, and workers and hold them accountable, The right to obtain permissible wealth from the national treasury, The right to declare war, and The right to appoint delegates and workers.

AlMawerdy stated that if the ruler fulfills his 10 duties (mentioned earlier), then the people are obligated to obey him and aid him, so long as his status does not change.

AlMawerdy then mentions that in the event that his justice becomes flawed (mainly when he performs actions clearly forbidden in Islam), the nation will no longer be obligated to obey nor aid him. He also mentioned a number of cases in which bodily (physically and mentally) defects may also render a ruler’s status as a ruler void.

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With the rise of Islamist political groups to power in a number of countries across the Middle East and North Africa, it is important to understand the basics of the political ideology behind these groups. In this article, I will touch up on a few principles of the Islamic political system.

The Basis for the Necessity of a Ruler:

Perhaps one of the most famous historical Islamic scholars who wrote on the Islamic political system, El-Mawerdy, he addressed the issue of the need for a ruler. In his famous book, “The Ordinances of Government” (“Al-Ahkam Al-Sultaniya”), he mentions that there are two main categories of reasons for a ruler. The first of these categories is the logical necessity, being that people cannot live in a society without there being a ruler who can protect the people from injustice and anarchy. The second category is related to Islamic teachings. The primary source El-Mawerdy mentions as proof of the religious commandment for there to be a ruler for the people is verse 59 of Surat Al-Nisaa which (translated) reads:

“O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority [Olee elAmr] among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination.”

Based on this verse, El-Mawerdy states that the Islamic law delegates authority to the ruler, or “Olee elAmr”.

The Bai’ah:

The bai’ah, or the pledge of allegiance, has historically been the true basis upon which the ruler’s authority is seen as legitimate by the people. The bai’ah is taken by “ahl elhal w el’aqd,” influential figures of public authority, upon inaugurating a new ruler. Even when monarchial rulers were present, the heir to the throne was obliged to receive the bai’ah from the people in order to gain legitimacy.

Traits of a Proper Ruler:

A number of Muslim scholars who addressed the issue of the political system and rule of law have addressed the main traits that a ruler must have. El-Mawerdy listed the following 7 factors that a ruler must have:

1. Justice as agreed upon (by the scholars of Islam) [understanding and practicing what is right and forbidding and avoiding that which is prohibited].
2. Knowledge that leads to good judgment and decision-making.
3. Free of defects in his senses of hearing, sight, and his tongue.
4. Free of physical defects or deformities that may hinder movement.
5. Wisdom and proper opinion that aids him in guiding his subjects and managing the people’s interests.
6. Bravery and courage that aid in protecting the interior and fighting the enemy.
7. Proper lineage (a number of scholars have mentioned that the caliph must be from the lineage of Quraish, but we are not currently addressing the concept of the caliphate).

The late contemporary scholar ‘Abd El’Aziz Ezzat ElKhayyat, formed a list of 8 factors which he mentioned in his book “The Political System in Islam” (Al-Nezam AlSiyasy fe El-Islam) :

1. Islam (He must be a Muslim. This factor was probably unquestionable during the time of ElMawerdy, and therefore was not worth mentioning in his time.)
2. Masculinity (Prior to ElMawerdy’s death, no female had taken a position of authority, so this may have been overlooked.)
3. Justice (ElMawerdy’s first factor).
4. Knowledge (ElMawerdy’s second factor).
5. The ability to lead and guide.
6. Senses and body free of deformities and defects.
7. Proper lineage (The Quraish factor).
8. The fitter choice (If any other individual is found to be more fit for the position of a ruler, than he should be chosen).

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