The need for a new foundation of Islamic political law is becoming a matter of ever more pressing urgency. It must be tackled imminently on the basis of a revision of the determinants of tribalism, revenue, and dogma that have dominated Arab political thought from the beginning until today. Otherwise there is a danger that religious extremism will re-emerge.
Last update: 2023-02-20 15:29:11
We are of the opinion that Islam is religion and state, but that it has not legislated on the state in the way it has legislated on religion. On the contrary, it has left the whole question to be resolved by the interpretative efforts of Muslims. This became clear at the meeting of the Companions[1] at the Saqîfa of Banû Sâ‘ida immediately after the death of the Prophet. On the one hand, if a state had not existed, they would not have met to choose a successor; while on the other hand, if Islam had made clear the right form of government and its mode of exercise, they would not have had divergent views on who to choose, nor would the modality of choosing the Caliph have undergone variations even at the time of the rightly-guided Caliphs.[2] The question of government in Islam is a question of public utility and interpretative effort (maslahiyya ijtihâdiyya) and Muslims have expressed divergent opinions on this. The two principal sides in the dispute are the Shi’ites and the Sunnis. With the Shi’ites maintaining that the Imamate after the Prophet (peace be upon him) belonged to ‘Alî Ibn Abî Tâlib and refusing to recognize the Imamate of Abû Bakr, ‘Umar, and ‘Uthmân, the Sunnis had to respond to this ‘rejection’ by demonstrating the legitimacy of the Imamate and of these Caliphs. In the face of the absence of an explicit Qur’anic text or of an uninterrupted and indisputable tradition, the sole possible source remained the judgment of history: the history of the rightly-guided Caliphs. Given that the Companions ratified or at least accepted what this or that rightly-guided Caliph had established, the Sunnis viewed this fact as a form of consensus on the part of the Companions. And this “consensus” became a source of legitimacy.
This applies to the era of the rightly-guided ones, the era of the ‘Caliphate’. But when the Caliphate turned into the kingdom with Mu‘âwiya,[3] indeed from the time of the Battle of Siffîn, Sunni Islamic consciousness found itself faced with this alternative: to continue with intestine discord (fitna) and the series of civil wars or to accept the fait accompli and confer on it a kind of legitimacy just as long as the ruler made a show of loyalty to Islam and did not order anyone to rebel [against God], exerting pressure on him peacefully (through advice, admonishment etc.) so that he kept up his religious duties and Islamic morality. And given that the task of the state in Islam and its raison d’être from the moment it emerged at the time of the Prophet was to unite Muslims under one single guide and spread the call to conversion (da‘wa) through Jihâd, the legitimacy of the ruler in Islam grows stronger and gains in vigour insofar as it broadens the extent of its government by uniting Muslims and by extending and defending the territory in which Islam is dominant (Dâr al-Islâm).
Affirming the legitimacy of the Caliphate of Abû Bakr, ‘Umar, and ‘Uthmân (against the Shi’ite rejection of it) while attributing a certain degree of legitimacy to the kings and the rulers who took over the government of the Islamic countries in toto or in part after the rightly-guided Caliphs: these were the two themes drawn from Islamic political law (fiqh al-siyâsa). The claim that there exists a ‘theory’ of Islamic government, in the works of theologians and jurists, is nothing but the expression of a wish that such a theory might exist, but there never was nor ever will be one ‒ since the necessary condition for the elaboration of an Islamic theory of government has not been fulfilled, i.e. the existence of a clear text, in the Qur’an or in the Sunna,[4] legislating on political questions: on the form of the state, the characteristics of its leader, the modalities of his appointment, and the duration of his term in office etc. Therefore the ‘Islamic’ theory of government – if we really have to employ that expression – is the theory of this or that individual Muslim or Muslim community, at this or that period, in this or that country or group. If it should happen that learned Muslims arrive at a consensus on a theory of government, and if all Muslims declare themselves in agreement over it, then this theory will become really Islamic, since the consensus of the community is a source of legislation in Islam. But this has not yet happened.
Some readers will counter this by citing the case of al-Mâwardî.[5] In our opinion however Abû l-Hasan al-Mâwardî undertook to carry too heavy a load.
His book On the Ordinances of the Government and religious offices indicates by its title what its theme will be. It is made up of the ‘ordinances of government’, that is what today we call administrative law, the law of public offices on the one hand, and on the other ‘religious offices’, i.e. offices with a religious connection. [...] It is true that al-Mâwardî dedicates the first chapter of his book to the contract of the Imamate, 20 pages out of 322 in the edition that we currently possess: but the content of this chapter is no more than a concentrated summary of what al-Bâqillânî and al-Baghdâdî[6] had written to defend the legitimacy of the Imamate of Abû Bakr, ‘Umar, and ‘Uthmân in response to the Shi’ite ‘rejection’. The only thing that is new in al-Mâwardî consists in his having extracted the opinions of these two ash‘arites theologians from their context in the sphere of the science of the Kalâm, liberating them from the polemical style typical of the Kalâm and reformulating them in affirmative terms in the manner of the jurists. [...] The fundamental question from the juridical point of view is that of the necessary conditions for the Imamate [...] and al-Mâwardî reduces them to seven [...]. If we follow the destiny of these conditions with the theologians and jurists who come after, we find ourselves faced with a series of concessions that ultimately lead to a complete renunciation. [...] In the end the Malikite jurists[7] summed up all of the discourse about the Imamate in just one sentence: ‘The one who cracks down the hardest will be obeyed’. [...]
Is it also necessary to say, by way of a summary of this chapter, that what remains ‘constant’ in Sunni political thought is the ideology of the Sultanate? The dispute of the theologians and the pronouncements of the jurists led in the end to a declaration of the legitimacy of the fait accompli: ‘The one who cracks down the hardest will be obeyed’. Has the ideology of the Sultanate been able to come to a conclusion different from this? So Islamic thought in the political field knew only the mythology of the Imamate and the ideology of the Sultanate. If the Sunnis were drawn to respond to the former by hallowing the fait accompli, nobody has yet been found to respond to the latter, whether in its old or in its contemporary form. The critique of Arab political thought must begin from here: from the critique of mythology and from the rejection of the principle of the fait accompli.
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A new foundation of Islamic political law is a matter of the utmost urgency, but will this be enough on its own to renew Arab political reason? We think not. [...] Tribalism, plunder, and dogma are the three determinants that have dominated Arab political reason in the past and that continue to dominate it, in one form or another, in the present. Of course modernity was penetrating some aspects of our lives for more than one hundred years, that is since we began to come to terms with contemporary civilization, and then the ideological movements of the Nahda and of the modern era emerged: the Salafiyya,[8] secularism, liberalism, nationalism, socialism. Political parties, trades unions, and associations were created and structures became rooted that are characteristic of the modern economy. The three determinants (tribalism, plunder, and dogma) met with a kind of repression and exclusion and became socially and politically excluded. The Arab Nahda fundamentally aspired to go beyond the determinant inherited from the old social situation and define new key factor in accord with the modern age. However Arab society did not manage to fulfill this aspiration to a sufficient and complete degree, for many reasons ‒ both external, like the colonial invasion and its aftermaths, and internal, like the fact that modernity was dropped on it from above. There have been relapses and mistakes that have opened the door wide to the return of the repressed. [...] Thus there has been a return of familism, confessionalism, and religious and dogmatic extremism to the point of dominating the Arab camp in a way that nobody would ever have expected before. The excluded has made a return so that our present resembles our past and our era inspired by the ideologies of the Nahda and nationalism has been turned into an anomalous link in the concatenation of our history. Tribalism has become the motor of politics, plunder the substance of our economy and dogma a sinecure aimed at justifying what exists or a Kharijite position.[9]
Therefore what is needed ‒ and what constitutes precisely the task of Arab thought today, the task of a renewal of Arab political reason ‒ is:
a) to transform the tribalism of our societies into an a-tribalism. A civil, political, social organisation: political parties, trade unions, free associations, constitutional institutions... In other words it is a question of constructing a society in which a clear distinction is lived between political society (the state and its apparatuses) and civil society (social organisations independent of the state apparatuses) [...].
b) to transform plunder into a taxation-based economy i.e. to move from a rentier economy to an economy of production. The Arab economy is dominated by revenue with all its components and effects (bribes, mentality etc.) and it suffers in every Arab country from chronic problems that can be overcome only in the context of regional economic integration and of a common market open to the attainment of an economic unity between the Arab countries. Only this can ensure the necessary foundation for an independent Arab growth.
c) to replace dogma with simple opinion. In place of the fanatical anathemas hurled back and forth between communities and sects that claim to possess the truth, it is essential to leave the field free for freedom of thought and freedom for dissent and difference; and thus it is essential that we free ourselves from the authority of the closed community, whether it be religious, political, or ethnic. Transforming dogma into opinion means liberating ourselves from the authority of sectarian and dogmatic reason, whether it be religious or secular, and operating according to a critical reason that is open to new interpretations.
Contemporary Arab thought calls therefore for a critique of society, economics, and reason ‒ both abstract and political reason. Without this type of critique carried out in a scientific spirit, all talk of Nahda, progress, and Arab unity will remain merely an expression of pious hopes. The objective of this book and of our other works is only to make a start. The question will remain open for a long time. And any conclusion on the subject must be regarded as the opening of a new discourse.
(Muhammad ‘Âbid al-Jâbirî, Al-ʿAql al-siyâsî al-‘arabî [Arab political reason], Markaz Dirâsât al-Wahda al-‘arabiyya, Bayrût 1990, fifth edition, pp. 358-374 passim. Trad. Martino Diez)