Theory and Practice in Islamic Constitutionalism: From Classical Fiqh to Modern Systems 9781463206932, 1463206933

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Theory and Practice in IslamicConstitutionalism

From Classical Fiqh to Modern Systems

Pietro Longo

gp 2019

Gorgias Press LLC, 954 River Road, Piscataway, NJ, 08854, USA www.gorgiaspress.com Copyright © 2019 by Gorgias Press LLC All rights reserved under International and Pan-American Copyright Conventions. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise without the prior written permission of Gorgias Press LLC. ‫ܕ‬

1

2019

ISBN 978-1-4632-0693-2

Library of Congress Cataloging-in-Publication Data A Cataloging-in-Publication Record is available from the Library of Congress. Printed in the United States of America

Theory and Practice in IslamicConstitutionalism

The Modern Muslim World

 Series Editorial Board Marcia Hermansen Hina Azam Ussama Makdisi

Martin Nguyen Joas Wagemakers

Advisory Editorial Board Talal Asad Khaled Abou El Fadl Amira Bennison Islam Dayeh Marwa Elshakry Rana Hisham Issa

Tijana Krstic Ebrahim Moosa Adam Sabra Armando Salvatore Adam Talib

This series will provide a platform for scholarly research on Islamic and Muslim thought, emerging from any geographical area and dated to any period from the 17th century until the present day. 

TABLE OF CONTENTS Table of Contents ..................................................................................... v Introduction .............................................................................................. 1 The state of research ....................................................................... 5 Chapter I. Islamic constitutionalism from within: the theory of the Caliphate in VXQQĪ classical sources ....................................... 11 1. Introduction and periodization ............................................... 11 2. Qurʾānic foundations of the Caliphate: a limited normativity............................................................................. 13 3. The Caliphate as defined by the Prophetic sunna ................. 22 4. The VXQQĪjurisprudence of the Caliphate: early developments ........................................................................ 24 4.1. Ibn al-Muqaffaʿ ................................................................ 24 4.2. Abū Yūsuf ......................................................................... 26 4.3. al-Jāḥiẓ and Ibn Qutayba ................................................ 29 5. The necessity for the Caliphate ............................................... 32 5.1. The requirements for the Caliph’s election.................. 43 5.2. Procedures of election ..................................................... 53 5.3. Caliph’s rights and duties ................................................ 62 6. The Caliphal governance.......................................................... 70 6.1. Ministries: Wizāra tafwīḍiyya and Wizāra tanfīdhiyya........................................................................ 70 6.2. Emirates: Imārat al-istilāʾ and Imārat al-istikfāʾ .......... 72 6.3. The ʛćʚLEDO-PDʲćlim ......................................................... 75 6.4. The 0XʚWDVLE ..................................................................... 76 Chapter II. The legal closure of the Caliphate and the rise of Islamic constitutionalism .............................................................. 79 1. Legal coding and the “modernization” of Islamic law ........ 79 2. Early constitutional documents and the late Ottoman system ..................................................................................... 87 2.1. The Gülhane edict of 1839 ............................................. 89 2.2. The Humāyūn edict of 1856 .......................................... 93 v

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2.3. The law of the Tunisian State 1861 ............................... 95 3. The founding fathers of liberal constitutionalism in VXQQĪand VKĪʰĪ legal thought ................................................. 97 3.1. Aḥmad Ibn Abī Ḍiyāf: analogies between the Caliphate and the constitutional government ............ 99 3.2. Khayr al-Dīn al-Tūnisī and the Islamic principles for a limited government ..........................102 3.3. Islamic constitutionalism in the XIX century VDODIĪ thought ..................................................................107 3.4. The birth of Islamic constitutionalism in the shīʿī jurisprudence ........................................................112 4. Rationalizing political powers: the Ottoman constitution of 1876 .................................................................................121 5. The Persian constitution between classical fiqh and positive law ..........................................................................131 6. The legal closure of the Caliphate and the rise of the jurisprudence on the “Islamic State” ...............................136 Chapter III. The development of Islamic constitutionalism in the XX century. Theory and Practice .......................................149 1. Constitutional Cycles in the Muslim World: purposes and functions of the constitutions ...................................149 2. Historicizing constitutionalism in the Muslim world ........156 2.1. Constitutions as tools for nation-building .................156 2.2. Constitutions as tools for the affirmation of sovereignty .....................................................................163 2.3. Constitutional developments in the Arabian Peninsula ........................................................................175 2.4 Succession criteria in the monarchical constitutions ..................................................................185 3. Modern theories of Islamic constitutionalism: towards a new orthopraxis ..................................................................188 3.1. Constitutionalism in the legal thought of Muslim Brotherhood ...................................................189 3.2. al-Mawdūdī and the Islamic “ideological” constitutionalism...........................................................193 3.3 Constitutionalism in the thought of the Āyāt Allāh Khomeini.............................................................196 3.4. Beyond Khomeinism: the failure of reconciling ZLOć\DWDO-IDTĪKand democracy.................203

TABLE OF CONTENTS

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4. Islamic constitutionalism in the )XTDKćʯDO-:DVDʞL\\D doctrine ................................................................................209 4.1 Constitutions as tools for the enforcement of religious ideology ..........................................................215 Chapter IV. Fundamental rights and duties in Islamic law and in the constitutions of the modern Muslim world ......................221 1. Islamic constitutionalism: Definition and content.............221 2. Sovereignty according to liberal and Islamic constitutionalism.................................................................225 2.1. The principle of separation of powers........................228 2.2. The principle of responsibility .....................................230 3. Sovereignty and separation of powers in the current constitutions of the Muslim world ..................................232 4. The power to legislate in the constitutions of the Muslim world ......................................................................249 5. The executive power and the instruments for checks and balances ........................................................................252 6. Judicial power in the constitutions of the Muslim world .....................................................................................263 7. Islamic reinterpretation of the democratic constitutionalism: the principle of consultation ............267 7.1. The principle of justice..................................................272 7.2. The principles of freedom and equality ......................274 7.3. Freedom of opinion, faith and thought......................279 7.4. Right of security and the freedom of movement ......................................................................280 7.5. Economic liberties and social rights ...........................281 8. Religious legitimacy in the constitutions of the Muslim world .....................................................................................284 Conclusion .............................................................................................293 1. The nature of the Islamic state .............................................293 2. From the Caliphate to the nation state: the failure to implement the Islamic material constitution ..................299 3. Back to the madhhab ................................................................303 4. The VKDUĪʰa as a Grundnorm of the constituent power .....309 Bibliography ..........................................................................................317 Primary sources............................................................................317 Other sources ...............................................................................324

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Index of names .....................................................................................361 Index of Arabic words .........................................................................367

Theory and Practice in Islamic Constitutionalism: From Classical Fiqh to Modern Systems Pietro Longo

Do not delete the following information about this document. Version 1.0 Document Template: Template book.dot. Document Word Count: 12772 Document Page Count: 375 To my father and my mother for their strength and temperance

INTRODUCTION This study investigates the subject of Islamic constitutionalism, through an investigation of both the theories of religious doctrine and some of their concrete implementations. Given the expansive nature of this topic, such a work necessitates the use of multiple approaches. In particular, a combination of the methodologies of comparative constitutional law with the history of politico-religious doctrines within Oriental studies. Therefore, at the outset of this study, some categories need to be defined, distinguishing the classical system of Islamic law from the current legal systems present in Muslim countries. Furthermore, the various meanings associated with the term ‘constitution’ require clarification. Firstly, I use it to mean all basic legal rules, written or unwritten, which determine the structure of a state. In a formal sense, the constitution differs from ordinary laws by virtue of its stricter formative process. Finally, the term constitution also carries a defined meaning, relating to constitutional rules only. 1 The distinction between a ‘material’ and ‘formal’ constitution is ancient. Aristotle, in books III and IV of its Politica, with reference ‘material constitution’, indicated the way in which a city-state was endowed with its own organization, regardless of the presence

P. Biscaretti di Ruffia, Introduzione al diritto costituzionale comparato. Le “forme di stato” e le “forme di governo”. Le costituzioni moderne, Giuffrè, Milan 1988, pp. 594–596; F. Castro, “Diritto musulmano e dei paesi musulmani”, in Enc. giur., vol. XII, Istituto della Enciclopedia Italiana, Rome, 1989, pp. 1–17. 1

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of written rules. 2 The substantial aspect of a constitution, therefore, defines the social and economic rules that represent the core values of a society at a given time. Conversely, a ‘formal constitution’ is the transplantation of the basic rules of a community in one or more texts. By combining the aforementioned meanings, Raz defines the constitution as the entity that shapes a society, starting from a determined ideology. 3 The consistency between material and formal constitutions ensures stability for the state, while their mismatch produces illegitimacy. In the case of the Islamic system of law, the material constitution is contained within the provisions of the VKDUĪʰa. What can be defined as Islamic constitutional law, then, is the set of rules contained in the revealed law, concerning the best way to run the state, the exercise and ownership of political power, the prerogatives of rulers as well as those of subjects, and the limitation of power. The latter element is the quintessence of constitutionalism as conceived in the contemporary world: it consists of those instruments capable of defending the material constitution. Proceeding from these assumptions, to answer the question of whether there is a specific Islamic constitutionalism is necessary for determining which of these are effective tools. The first chapter of this study, which is dedicated to this topic, is entirely based on classical Islamic law, investigating the fiqh al-LPćPD, which I consider the truest manifestation of constitutional jurisprudence. If the Qurʾān and the sunna do not provide strict rules, but only general principles, in relation to government, it was the sunnī jurists’ piecemeal development, across the centuries, that provided a more defined structure of the Caliphate (or Imamate). The validity of this doctrine lasted until the nineteenth century, when in the VXQQĪ world, some western-inspired reforms were adopted, under the slogan of ‘reopening the door of B. Hjern, C. Hull, “Implementation research as empirical constitutionalism”, in European Journal of Political Research, vol. 10, no. 2, Wiley, Hoboken 1982, pp. 105–115. 3 J. Raz, “On the authority and interpretations of Constitutions: preliminaries”, in L. Alexander (edited by), Constitutionalism. Philosophical foundations, Cambridge University Press, Cambridge 1998, pp. 152–193. 2

INTRODUCTION

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ijWLKćG’. In this part of the book, I summarize the doctrine of the Caliphate since its inception to the fifteenth century, taking into account the differences among the schools of law (madhćhib) and the evolution of the theory over time. It is notable that the main differences in relation to the theory of the Caliphate occur during its formative period, from 5th/11th–7th/12th centuries. With the fall of the ʿAbbāsids and the rise of the Ottomans, a new political theory was implemented, even if the new rulers, being Turks, were officially not entitled to claim the title of Caliphs. Chapter two deals with the reforms alluded to in the previous chapter, keeping in mind that the era of the Ottoman WDQʲĪPćW was also perceived as a process of renewal of Islamic law. The works of some intellectuals, such as those of salafiyya modernists or the Young Turks, played a key role in reconciling the Islamic system of law with the drive for greater codification. The European positivist legal culture, embedded in the Napoleonic Code, was accepted in some Muslim countries, partly because of the pressure of colonization and partly due to the influence of statesmen such as Khayr alDīn al-Tūnisī and Aḥmad ibn Abī Ḍiyāf. At that time, the codification, a symbol of Western powers, seemed the best way to reform Muslim societies. This transformation contributed to changing the intimate structure of the Islamic law and resulted in the progressive marginalization of the IDTĪK. The state gained the supremacy in relation to the law, becoming its producer, whereas in the classic system of Islamic law this task belonged to the scholars. Greater attention was paid to the state and rather than to the Caliphate. In the doctrinal development the latter progressively became a mythic archetype whose general principles legitimized the state. Consultation, the election of who leads the community, the oath of allegiance, the right to revolt in case of immoral conduct, were all elements transferable into the national states, whose founding act remained the constitution. When, in 1924, the Assembly of Ankara proclaimed the Turkish Republic, the theory of the Caliphate was completely marginalized. Since then, the golden age of the rightly guided Caliphs was invoked as example of unique administration of the

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community, whose rules were deduced from the conduct of the Prophet and his early companions. 4 Chapter three shows as, in the post-Ottoman Muslim world, several constitutional cycles have followed, starting from the era of liberal constitutionalism during the nineteenth century. 5 The constitutions drafted during the cycles have not complied with constitutional purposes, but only aimed at rationalizing the existing power and conveying a precise ideology. This process took place in parallel with the literary production of a group of Muslim jurists who, in the wake of the thought of Rashīd Riḍā, attempted to define the Islamic state, leading sometimes to ideological excesses, as in the cases of Abū al-Aʿlāʾ al-Mawdūdī. 6 In his studies devoted to the principles of Western constitutionalism, René Carre de Malberg underlined that, according to the French doctrine, the state’s original subject is the nation, which is the source of sovereignty. In the case of Islamic constitutionalism, this assumption is unacceptable since the origin of the state is the VKDUĪʰa. Hence, since the French Revolution, the idea that rights belong to anyone but to the citizens is rooted in the European constitutional philosophy. Islamic constitutionalism rejects this view, because in principle popular sovereignty derives from God and His law. Therefore, the rights are attributed only in a residual way to human beings and a rigid distinction between rights of God and rights of servants (ʚXTŠT$OOćK, ʚXTŠTDO-ʰLEćG) exists. 7 As showed in chapter four, more appropriate to describe the nature of the IslamA. Quraishi, “Who says Shariʿa demands the stoning of women? A description of Islamic Law and constitutionalism”, in Berkeley Journal of Middle-Eastern and Islamic Law, vol. 1, University of California Press, Berkeley 2008, pp. 163–177. 5 J. Ladjili-Mouchette, Histoire juridique de la Méditerranée. Droit romain, droit musulman, Centre de Publication Universitaire, Tunis 2006, p. 426. 6 N. Shorabi, “Historicizing Revolutions: Constitutional Revolutions in the Ottoman Empire, Iran, and Russia, 1905–1908”, in 7KH $PHULFDQ Journal of Sociology, vol. 100, no. 6, The University of Chicago Press, Chicago 1995, pp. 1383–1477. 7 R. Carré de Malberg, Contribution à la Théorie générale de l’État, Éditions Dalloz, Paris 2004, pp. 20–25. 4

INTRODUCTION

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ic state is the European doctrine of ‘personality of the state’, according to which the state is not an end in itself but a means, an institution that would not exist in the absence of the human purposes it is supposed to serve. This view is totally valid for Islamic constitutionalism, but with a few caveats: the aim the state is entitled to pursue is divine in nature and coincides with the application of the VKDUĪʰa that, in turn, seeks to achieve the salvation of man. The recent intellectual stream of the ZDVDʞL\\D, represented among others by Yūsuf al-Qaraḍāwī and Rāshid al-Ghannūshī, proposes a decisive ideological moderation and attempts to bridge Islamic and Western constitutionalism. Without renouncing to attribute the ultimate sovereignty to God, these scholars point out that the Muslim community should be considered as the source of sovereignty, as demonstrated by medieval jurists such as alMāwardī, al-Ghazālī and Ibn Taymiyya. Starting from these premises, in the conclusive section, I argue that, studying the Islamic constitutionalism, we should not so much investigate the introduction of European constitutional specificities in a hypothetical and original Islamic state. Rather we must analyze the Islamic peculiarities of western-inspired constitutional models. 8 In this book, therefore, I attempt to highlight those aspects of higher incidence of Islamic law in the modern constitutions, along with the manner in which these basic laws recalled and absorbed some important principles of Western constitutional law. 9

THE STATE OF RESEARCH There is not at present a comprehensive study on Islamic constitutionalism which takes into account both of the levels of classical Islamic law and the national constitutional systems. In order to do A. Amor, “Constitution et religion dans les États musulmans”, in AA.VV., Constitutions & Religions, vol. 4, Académie Internationale de Droit Constitutionnel, Tunis 1994, p. 53. 9 Yadh ben Achour, L’État Nouveau et la Philosophie Politique et Juridique Occidentale, Publication du Centre d’Études, Recherches et Publication de la Faculté de Droit et des Sciences Politiques et Economiques de Tunis, Tunis 1980, p. 22. 8

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this, the present study aims at combining various methodologies, starting from the meta-legal nature of constitutional law. The oldest studies on the material constitution of Muslim polity, which could also be considered as the first works on the Islamic constitutionalism, are La Cité musulmane: vie sociale et politique published by Louis Gardet 10 and the collection of essays edited by Majid Khadduri and Karl Liebesny, entitled Law in the Middle East. 11 The volume Studies on the civilization of Islam, edited by Hamilton Gibb, Stanford Shaw and William Polk, could be considered in the same line, too. 12 This work has found in Islam and public law: classical and contemporary studies, edited by Chibli Mallat, an ideal continuation and updated volume. 13 Other works deal with the Islamic constitutionalism from a historiographical perspective, such as The Caliphate by Thomas Arnold; 14 7KH$UDE.LQJGRPDQG,WV)DOO by John Wellhausen; 15 La Passion d’al-Hallaj by Maurice Massignon; 16 Les Institutions Musulmanes by Maurice Gaudefroy Demombynes, 17 and $SSXQWLVXOODQDWXUDGHO “Califfato” in genere e sul presunto “Califfato ottomano” by Carlo Alfonso Nallino. 18 Other studies adopt a purely comparative legal approach. These include the doctoral thesis of ʿAbd al-Razzāq al-Sanhūrī entitled Le Califat. Son Évolution vers une Société des Nations Orientales 19 and the work, in two volumes, Institutions du Droit Public Musulman by

Libraire Philosophique J. Vrin, Paris 1954. The Middle East Institute, Washington 1955. See also: M. Khadduri, War and peace in the Islamic Law, The John Hopkins University Press, Baltimore 1955. 12 Princeton University Press, Princeton 1962. 13 Graham & Trotman, London 1993. 14 Calderon Press, Oxford 1924. 15 University of Calcutta, Calcutta 1927. 16 Librairie Orientaliste Paul Geuthner, Paris 1922. 17 Ernest Flammarion Éditeur, Paris 1921. 18 Ministero delle Colonie, Direzione generale degli affari politici, Rome 1917. 19 Librairie Orientaliste Paul Geuthner, Paris 1926. 10 11

INTRODUCTION

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Emile Tyan. 20 The Islamic constitutionalism is also analysed by David Santillana, 21 Joseph Schacht, 22 Agostino Cilardo 23 and by Antonio d’Emilia in a posthumous collection of writings edited by Francesco Castro, Scritti di Diritto Islamico. 24 The work of Patricia Crone, written with Martin Hinds, *RGpV&DOLSK5HOLJLRXV$XWKRULW\LQ the First Centuries of Islam follows the methodology of Oriental studies. 25 This work, together with 7KH6XFFHVVLRQWR0XKDPPDG$6WXG\ of the Early Caliphate, by Wilfred Madelung, represent the most complete historical reconstruction of Muhammad’s succession and the problem of leadership after his death. 26 In the book Medieval Islamic Political Thought, Patricia Crone deals with the Islamic constitutionalism but from a political and philosophical point of view. 27 Adopting a similar approach are Political Thought in Medieval Islam by Erwin Rosenthal; 28 Islamic Political Thought. The Basic Concepts by William Watt; 29 Development of Muslim Theology, Jurisprudence and Constitutional Theory by Duncan Black McDonald; 30 The history of Islamic political thought: from the prophet to the present by Anthony Black; 31 State and Government in Medieval Islam by Ann Lambton; 32 Islam e Politica by Massimo Campanini, and the collective volume edited by Francesco Montessoro Lo stato islamico. Teoria e prassi nel mondo contemporaneo. 33 Extensive is the production of essays on the Caliphate written in Arabic. Almost all volumes regarding the so-called political Islam Sirey, Paris 1956. Istituto per l’Oriente, vol. 2, Rome 1943. 22 Calderon Press, Oxford 1966. 23 Edizioni Scientifiche Italiane, Naples 2002. 24 Istituto per l’Oriente, Rome 1976. 25 Cambridge University Press, Cambridge 1986. 26 Cambridge University Press, Cambridge 1997. 27 Edinburg University Press, Edinburg 2004. 28 Cambridge University Press, Cambridge 1958. 29 Edinburg University Press, Edinburg 1968. 30 Darf Publishers Limited, London 1985. 31 Edinburg University Press, Edinburg 2001. 32 Oxford University Press, Oxford 1981. 33 Il Mulino, Bologna 2003; Guerini e Associati, Milano 2007. 20 21

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start with the description of the role of Caliph, the procedures of his investiture and his duties. Fundamental works of this kind are al-.KćOLID WDZDOL\\DWXKX ZD-ʰD]OXKX ,VʞćP IĪpO-QDʲDUL\\D DO-GXVWŠUL\\D DOLVOćPL\\D'LUćVDPXTćUDQDELpO-QXʲXPDO-GXVWŠUL\\DDO-gharbiyya, by Salah al-Din Dabbus; 34 al-.KLOćID DO-LVOćPL\\D by Muhammad Sa‘id al‘Ashmawi; 35 1DʲćUL\\ćWDO-.KLOćIDDZDO-,PćPDZD-WDWDZZXUXKćDO-VL\ćVĪ wa’l-GĪQĪ by Salah al-Din Muhammad Nawar; 36 ʝXUXT LQWLKćʯ ZLOć\DW al-ʚXNNćP IĪpO-VKDUĪ‘a al-LVOćPL\\D ZDpO-QXʲXP DO-GXVWŠUL\\D by Yusuf Mahmud Qurush. 37 Other works examined here belong to the intellectual stream of ZDVDʞL\\D. Among them are worthy to be mentioned: Min Fiqh al-'DZODIĪpO-,VOćP by Yūsuf al-Qaraḍāwī; 38 al-,VOćP wa’l-'ĪPŠTUćWL\\D by Fahmī Huwaydī; 39 al-ʙXUUL\\ćW DO-ʰĆPPD IĪpODawla al-,VOćPL\\D by Rāshid Ghannūshī. 40 All the studies mentioned so far deal with the material constitution of Islamic law but do not analyze the transition to the western-inspired constitutionalism. In this context, the few significant works have been produced by Nathan Brown and Said Arjomand. The first authored the book Constitutions in a non-Constitutional World, and other essays on the enforcement of rule of law in the Muslim countries. 41 Said Arjomand, in addition to his numerous studies on Muʾassasa al-Thaqāfa al-Islāmiyya, Alessandria 1988. Sinā, Cairo 1992. 36 Dār al-Maʿārif, Alessandria 1996. 37 Muʾassasa al-Risāla, Beirut 1987. 38 Dār al-Shurūq, Cairo 2001. 39 Markaz al-Ahrām li’l-tarjama wa’l-nashr, Cairo 1993. 40 Markaz dirāsāt al-waḥda al-ʿarabiyya, Beirut 2001. 41 State University of New York Press, Albany 2002. See also: N. Brown – A.O. Sherif, “Inscribing the Islamic Shariʿa in Arab Constitutional Law”, in Y.Y. Haddad – B. Stowasser (edited by), Islamic Law and the Challenges of Modernity, Alta Mira Press, Walnut Creek 2004; N. Brown, “Regimes Reinventing Themselves: Constitutional Development in the Arab World”, in S. Arjomand (edited by), Constitutionalism and Political Reconstruction, Brill, Leiden 2007; C. Lombardi, N. Brown, “Do Constitutions Requiring Adherence to Shariʿa Threaten Human Rights – How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law”, in $PHULFDQ8QLYHUVLW\,QWHUQDWLRQDO/DZ5HYLHZ, vol. 21, no. 3, Wash34 35

INTRODUCTION

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the doctrine of ZLOć\DWDO-IDTĪK, wrote the essay entitled Islamic Constitutionalism. 42 In the same direction are the works Les Constitutions $UDEHVHWOp,VODP by Sabine Lavorel 43 and Introduccion a los Regimenes y &RQVWLWXFLRQHV $UDEHV by Bernabé López García and Cecilia Fernández Suzor. 44 The work by Amedeo Giannini is of great value for the study of the Arab constitutions of the late nineteenth century. This is the first book conceived entirely in Italian as a handbook of constitutionalism of Muslim countries. 45 The most recent constitutions are analysed in the book edited by Eric Canal-Forgues, entitled Recueil GHV &RQVWLWXWLRQV GHV 3D\V $rabes, where each constitution is briefly explained in an introduction that illustrates the salient features. 46 Valuable is also the collection of essays edited by Abdulhadi Khalaf and Giacomo Luciani, entitled Constitutional Reform and Political Participation in the Gulf. Here the constitutional models of the monarchies in the Arabian Peninsula are strictly analysed. Among the others, the essay by Gianluca Parolin, Gulf Generations of Constitutions: Paths and Perspectives is of particular interest. 47 Finally, the following works are also important: al-,VOćP ZDPDEćGĪ QLʲćP DO-ʚXNP and al-6KDUĪ‘a al-LVOćPL\\D ND-PDʜGDU DVćVĪ OLpO-

ington College, Washington 2006; N. Brown, 7KH UXOH RI ODZ LQ WKH $UDE world: courts in Egypt and the Gulf, Cambridge University Press, Cambridge 1997. 42 In $QQXDO5HYLHZRI/DZDQG6RFLDO6FLHQFHV, vol. 3, Annual Reviews, Palo Alto 2007; S. Arjomand (edited by), Constitutional Politics in the Middle (DVWZLWKVSHFLDOUHIHUHQFHWR7XUNH\,UDT,UDQDQG$IJKDQLVWDQ, Hart Publishing, Portland 2008; Id., The Turban for the Crown. The Islamic Revolution in Iran, Oxford University Press, Oxford 1988; Id., “Shariʿa and Constitution in Iran: a Historical Perspective”, in A. Amanat, F. Griffel (edited by), Islamic Law in the Contemporary Context. 6KDULʰD, Stanford University Press, Stanford 2007. 43 Presses de l’Université du Québec, Sainte-Foy 2005. 44 Centro de Estudios Constitucionales, Madrid 1985. 45 Istituto per l’Oriente, Roma 1931. 46 Bruylant, Bruxelles 2000. 47 Gulf Research Center, Dubai 2006.

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GXVWŠU by the Muslim scholar ʿAbd al-Hamid Mutawalli 48 and al6XOWćW DO-WKćOćWK IĪpO-GDVćWLU DO-ʰDUDEL\\D DO-mu‘ćʜLUD ZD-IĪpO-fikr al-VL\ćVĪ DOLVOćPĪ by Sulayman al-Tamawi. 49 On the Islamic principle of the VKŠUć, the work of Tawfiq al-Shawi entitled Fiqh al-VKŠUćZDpO-LVWLVKćUD is the most complete study of its kind. 50 The heterogeneous nature of the scientific literature about Islamic constitutionalism demonstrates how a comprehensive study of this topic requires a multidisciplinary approach, which crosses the boundaries of legal studies, political philosophy and Oriental sciences. Lastly, before beginning a discussion on the doctrine of Islamic constitutionalism, a brief pause is necessary: this study would never have seen the light of day without the encouragement and the wise guidance of Professor Agostino Cilardo (1947–2017), Full Professor of Islamic Law at University L’Orientale in Naples. I owe him a tribute of gratitude for spreading his passion for Islamic law and stimulating my intellectual curiosity and fondness for research. Cilardo was a fervent defender of the methodological mix in the field of Islamic law, aware of the need to overcome the epistemological barriers raised by conceptual cages. Any limitations or shortcomings of this study, however, are entirely my own.

48

Dār al-Maʿārif, Alexandria 1975, and Dār al-Maʿārif, Alexandria

49

Dār al-Fikr al-ʿArabī, Cairo 1967. Dār al-Wafāʾ, al-Manṣūra 1992.

2008. 50

CHAPTER I. ISLAMIC CONSTITUTIONALISM FROM WITHIN: THE THEORY OF THE CALIPHATE IN SUNNĪ CLASSICAL SOURCES 1. INTRODUCTION AND PERIODIZATION The VXQQĪ theory of the Caliphate first emerged as early as the eighth century of the Christian era. However, a mature canonization was accomplished only three centuries later, in a moment of particular importance for the Abbasid state. Three main events stimulated its developement: in 909 CE, the Fatimid Caliphate was proclaimed in North Africa and, since 969 CE, it settled in Egypt. In 929 CE, Umayyad rule was restored in Spain and in 945 CE the capital of the Abbasids, Baghdad, was being threatened by the army of the Buyyids, a shīʿī dinasty from the Daylam, in the Caspian Sea. 1 Based on these assumptions, the jurists of the four VXQQĪ schools of law had begun to codify the rules relating to the conduct of the state, even though at that time the Caliph was stripped of many of his powers. 2 The oldest production of the Caliphate, dated in the eighth and ninth centuries of the Christian era, is not legal in its proper P. Crone, Medieval Islamic political thought, Edinburgh University Press, Edimburgh 2004, p. 220; Crone P. – Hinds M., God’s Caliph: religious authority in the first centuries of Islam, Cambridge University Press, Cambridge 1986. 2 E. Tyan, Institutions du droit public musulman, tome deuxième sultanat et califat, Sirey, Paris 1956, p. 84. 1

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meaning, but falls within the context of the so-called adab literature. The principal authors were public officials and politicians by profession, who aimed, through their writings, to provide advice to the Caliphs in power. For example, Ibn al-Muqaffaʿ (720–756 CE) or Abū Yūsuf (729–798 CE) produced treaties relating to constitutional matters, even though these were not jurisprudential works. Only with the treaties of Abū Bakr al-Bāqillānī (950–1013 CE) and Abū Manṣūr al-Baghdādī (980–1037 CE) did the theory of Caliphate experience concrete systematization, despite being addressed within pure theological works. Generally, the jurist Abū al-Ḥasan al-Māwardī (972–1058 CE) is indicated as the author of the first manual of Islamic constitutional law, conceived as an autonomous work. Simultaneously, the judge of ḥanbalī school Abū Ya‘lā ibn alFarrāʾ (990–1066 CE), wrote a similar essay. 3 The two jurists were pioneers in showing the difficulties that the institution of the Caliphate was experiencing, particularly within the context of territorial expansion as well as for the rise of antagonistic dynasties. Subsequent developments, by Abū Maʿālī al-Juwaynī (1028–1085 CE) and his disciple Abū Ḥāmid al-Ghazālī (1058–1111 CE), lead the theory of the Caliphate to extreme hybridization, by introducing the institution of the Sultanate as an essential element of Islamic constitutional theory. The apogee was reached by the chief judge of the court of the Mamlūk rulers, Badr al-Dīn Ibn Jamāʿa (1241– 1333 CE), who completed the assimilation of the figure of the Caliph to that of the Sultan. As a counterpoint, Taqī al-Dīn ibn Taymiyya (1263–1328 CE), witnessing the destruction of Baghdad by the Mongol hordes, rose to deny the necessity of the Caliphate, believing only mandatory the application of the shariʿa. Finally, two pragmatic positions, based on close observation of historical facts, were those presented by Saʿd al-Dīn al-Taftāzānī (1322–1390 CE) and ʿAbd al-Raḥmān ibn Khaldūn (1332–1406 CE). As Tyan noted, the doctrine of the Caliphate, despite its changing nature, remained the privileged object of study of the constitutional branch of Islamic law until the twentieth century. 4 Due to its flexibility, this theory adapted to historical circumstanc3 4

P. Crone, op. cit., p. 222. op. cit., pp. 263–265.

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es, to come to a complete elimination as a result of the collapse of the Ottoman Empire and the start of a legal acculturation. During the last centuries of the Ottoman Empire, the Western political systems were imported and, even if considered as conforming to Islamic law, as suggested by ʿAbd al-Razzāq al-Sanhūrī, they required a new legitimacy. The first step in this direction was made with the signing of the Treaty of Paris in 1856, with which the Ottoman State had agreed to submit to European public law in order to establish good relations with neighboring countries. 5

2. QURʯĆNIC FOUNDATIONS OF THE CALIPHATE: A LIMITED NORMATIVITY

Approaching the constitutional sphere of Islamic law, it is necessary to emphasize that the Qurʾān does not outline any specific system of government, but merely provides some basic principles. The term NKLOćID, far from identifying a well defined political system, outlines a set of structural ideas and general principles that adapt to the different apparatus of government. 6 Also, in the VXQQĪ legal thought, there has never been a single, universally accepted doctrine of Caliphate. 7 In a vain attempt of reductio ad unum, in the twentieth century, the field of oriental studies proposed different categories to describe the nature of the Caliphate: Wellhausen, for example, took the outright expression of “theocracy”, while Arnold talked about “universal nomocracy”, a system of government based on a divine code. 8 The debate has been vehemently prompted by D’Emilia, who demonstrated the inconsistency of the “theocratic” ʿA. al-Sanhūrī, Le Califat. son évolution vers une Société des Nations Orientales, Librairie Orientaliste Paul Geuthner, Paris 1926, p. 325. 6 S. Dabbus, al-.KćOLID WDZDOL\\DWXKX ZD-ʰD]OXKX ,VʞćP IĪpO-QDʲDUL\\D DOGXVWŠUL\\D DO-LVOćPL\\D 'LUćVD PXTćUDQD ELpO-QXʲXP DO-GXVWŠUL\\D DO-ĠDUEL\\D, Muʾassasa al-Thaqāfa al-Jāmʿiyya, Alexandria 1988, p. 28. 7 Studies on the civilization of Islam, Princeton University Press, Princeton 1962, p. 148. 8 J. Wellhausen, The arab kingdom and its fall, University of Calcutta, Calcutta 1927, p. 35; T.W. Arnold, The Caliphate, Clarendon Press, Oxford 1924, p. 17; See also: E.I.J. Rosenthal, Political thought in medieval Islam, Cambridge University Press, Cambridge 1958. 5

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positions as well as the “secular”. Among both of them, it is worth citing the position of Gaudefroy-Demombynes, stressing that the function of the Caliph was uniquely to lead the canonical prayers. 9 D’Emilia points out that the political system inspired by God ended with the death of the Prophet, but, given the intimate connection between religion and politics, a purely secular Caliphate is unthinkable. 10 This idea seems to lean towards Nallino when, translating a passage from the “catechism” of al-Nasafī, he says that the Imam is the “supreme monarch”, the “secular leader” of the Muslim empire. 11 On the contrary, the argument proposed by Massignon is syncretic: the Islamic state can be defined as a “secular theocracy” whose legislative magisterium consists of the Qurʾān and the judiciary in the whole community. The executive is ascribed to God, although it is exercised by an intermediary. 12 Gardet stresses, also, the egalitarian character of the Caliphate: power is placed in God who legislated once and for all and has given man the task of applying the shariʿa. Even the head of the community must respect the principles of Islamic law, so as to achieve the truest spirit of equality. 13 As pointed out by al-ʿAshmāwī, the Caliphate represented the perfect marriage between a civil and religious government, while the latter is based on the will of a social group, the religious government derives legitimacy by the revealed law and not by an infallible and supernatural governor. 14 The same author also writes that: M. Gaudefroy-Demombynes, Les institutions musulmanes, Ernest Flammarion Éditeur, Paris 1921, p. 133. 10 A. d’Emilia, Scritti di Diritto Islamico, (edited by) F. Castro, Istituto per l’Oriente, Roma 1976, pp. 413–416. 11 C.A. Nallino, $SSXQWLVXOODQDWXUDGHOq&DOLIIDWRrLQJHQHUHHVXOSUHVXQWR “Califfato ottomano”, Ministero delle Colonie – Direzione generale degli affari politici, Roma 1917, pp. 7–8. 12 M.L. Massignon, La passion d’al-Hallaj, Librairie Orientaliste Paul Geuthner, Paris 1922, p. 719. 13 L. Gardet, La cité musulmane. Vie sociale et politique, Libraire Philosophique J. Vrin, Paris 1976, pp. 32–40. 14 M. al-ʿAshmāwī, al-.KLOćID DO-,VOćPL\\D, Sinā, Cairo 1992, p. 22; W.E. Shepard, “Muḥammad Said al-Ashmawi and the application of the 9

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“Initially [the Caliph] was the one who ruled after the Prophet, simply coming after him. Following [the Caliphate] has known many transformations to become a pure religious system and since the successor was Caliph of the Prophet, he became Caliph of God, then also the shadow of God on earth […]. But the Caliphate at the beginning was just a civil system of government”. 15

These words sum up the problem of the nature of the Caliphate and clarify the misunderstanding underlying the debate on this issue. All the positions reported above have their validity, but across different periods. For example, Crone and Hinds have shown how religious authority did not end with the death of the Prophet but was exercised in the Umayyad age (661–750 CE) and during the first Abbasid period (up to the IX and X centuries). Conversely, Zaman, analysing the earliest essays on administration, partially refutes this argument. He shows that between the settling of the Abbasids up to the al-Maʾmūn government, there is no evidence of a clash between the ʰXODPćʯ and the Caliphs, except for the PLʚQD. Rather, the Caliphs acted as authorities in the explanation of the sources of Islamic law, due to their ability in practicing ijWLKćG even through consultation with the scholars. The Caliphs were interpreters of the shariʿa and not its innovators, the latter task being reserved exclusively to the Prophets. 16 Sharia in Egypt”, in International Journal of Middle East Studies, vol. 28, no. 1, Cambridge University Press, Cambridge 1996, pp. 39–58. 15 M. al-ʿAshmāwī, op. cit., p. 23. 16 P. Crone – M. Hinds, God’s Caliph: religious authority in the first centuries of Islam, Cambridge University Press, Cambridge 1986; I.M. Lapidus, “State and religion in Islamic societies”, in Past & Present, no. 151, Oxford University Press, Oxford 1996, p. 9; Id, “The separation of State and religion in the development of early Islamic society”, in International Journal of Middle East Studies, vol. 6, no. 4, Cambridge University Press, Cambridge 1975, pp. 363–385; M.Q. Zaman, “The Caliphs, the ʿulama, and the law: defining the role and the function of the Caliph in the early Abbasids period”, in Islamic Law and Society, vol. 4, no. 1, Brill, Leiden 1997, pp. 1–36; Id., Religion and politics under the early abbasids: the emergence of the proto-VXQQĪ elite, Brill, Leiden 1997. The PLʚQD, or inquisition, was established by the

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Therefore, the VXQQĪ theory of the Caliphate has been developed by the jurists, starting from few regulatory verses which, although being part of the supreme source of Islam law, the Qurʾān, have the status of DGLOODʲDQQL\\D, principles based on human reason and not that of DGLOODTDʞʰL\\D or indisputable principles. 17 The same term “Caliph” (NKDOĪID) occurs only twice in the Qurʾān (2:30 and 38:26) and seven times in its plural form. 18 The verses reported below, explained by the prophetic traditions and by the WDIVĪU literature provided by the jurists, represent the pillars of the Islamic state, whose constitutional law coincides with the theory of the NKLOćID. The Indian Muslim judge Abdur Rahim, wrote in his nineteenth century manual on Islamic jurisprudence: The conception of the state in the muhammadic system of law is that of the commonwealth of all Muslims living in one big community under the guidance of an executive leader called Imam or Caliph. The responsibility of administration remains to the Imam, but, for the effective implementation of the tasks, he may delegate his powers to different personalities. For example, the Caliph can appoint ministers to manage certain tasks and duties […]. Similarly he is entitled to appoint governors for a particular region. 19

Such a view is expressed in a tradition which narrates that the Prophet instructed Muʿādh ibn Jabal on the best way to deal with the shariʿa before sending him to Yemen as goveror. Muʿadh stated Caliph al-Maʾmun (786–883 CE) in 833 CE to oblige ʰXODPćʯ to accept the Muʿtazili theory of the created Qurʾān. An illustrious victim was Ahamd ibn Hanbal who believed the scholars to be the only interpreters of the divine law. 17 M.A. al-Zarqa, al-Madkhal al-ILTKĪ DO-ʰćPP, Dār al-Qalam, Damascus 1998, vol. 1, pp. 985–986. 18 W.M. Watt, Islamic political thought. Basics concept, Edinburgh University Press, Edinburgh 1968, p. 32; Z. Sardar, 7KH,VODPLF6WDWH$VWXG\EDVHG on the Islamic holy Constitution, Mansell Publishing Limited, London 1984, p. 4. 19 Abdur Rahim, The principles of Muhammadan jurisprudence, Luzac & Co., London 1911, pp. 383–384.

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that he would have applied firstly the rules contained in the Qurʾān, then those contained in the sunna and finally would have produced his personal ijWLKćG in the absence of provisions in the previous sources. This tradition is reported as a milestone about the hierarchical relationship between the sources of Islamic law in regard to the organizational structure of the Islamic system of government. 20 The term NKDOĪID appears for the first time when referring to Adam in Qurʾān 2:30 “And [mention, O Muhammad], when your Lord said to the angels, “Indeed, I will make upon the earth a successive authority.” They said, “Will You place upon it one who causes corruption therein and sheds blood, while we declare Your praise and sanctify You?” God said, “Indeed, I know that which you do not know”. The second time the term appears in Qurʾān 38:26 “O David, indeed We have made you a successor upon the earth, so judge between the people in truth and do not follow [your own] desire, as it will lead you astray from the way of God”. According to the commentaries of al-Ṭabarī, al-Qurṭubī and al-Bayḍāwī, the interpretations of these verses are focused on the term NKLOćID. The general sense of the text indicates that God proclaims to the angels his intention to appoint a Caliph on earth. 21 But a comparison with verse 14 of the tenth VŠUD specifies the concept: God chose some men over others to make them Caliphs, or successors of those who have been before, the Caliph meaning who chronologically comes after those who went before.

M. Campanini, Islam e politica, Il Mulino, Bologna 2003, pp. 63–64; S. Nawar, 1DʲDUL\\at al-NKLOćIDDZ-al-LPćPDZD-WDWDZZXUXKćDO-VL\ćVĪZDpO-GĪQĪ, Dār al-Maʿārif, Alexandria 1996, p. 12. 21 M. al-Ṭabarī, 7DIVĪU DO-ʝDEDUĪ, Dār al-Maʿārif bi-Miṣr, Cairo 1954, vol. 1, p. 448; A. al-Qurṭubī, al--ćPLʰ OL-$ʚNćP DO-4XUʯćQ, Muʾassasa alRisāla, Beirut 2006, vol. 1, p. 394; ʿA. al-Bayḍāwī, $QZćUDO-7DQ]ĪOZD-$VUćU al-7DʯZĪO, Dār Iḥyāʾ al-Turāth al-ʿArabī, Beirut 2001, vol. 1, p. 68; A. Bausani, Il Corano. Introduzione, traduzione e commento, Biblioteca Universale Rizzoli, Milano 2003. 20

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For al-Ṭabarī, the term does not assume a strictly political connotation, but only refers to the first human generations. 22 The Caliph par excellence is Adam, and, following his example, every man who, after him, chooses to obey God and to govern with justice. These are properly those who have sworn allegiance (ahl al-ʞćʰD), while those generating corruption join the ahl al-PDʰʜL\\D. According to al-Qurṭubī, even without any political meaning, the verses are the most important sources for the appointment of the Caliph. 23 The commentary of Ibn Kathīr is quite scrupulous in reporting that the term NKDOĪID, as used in the Qurʾān, does not refer exclusively to Adam, but concerns the whole of humanity. Even al-ʿAshmāwī reports that the word NKDOĪID takes the meaning of God’s representative (QL\ćEDʰDQ$OOćK) in respect to the human race. 24 The modern commentary of Sayyid Quṭb provides for a creationist understanding of the term NKDOĪID: God chose Adam and places him as his Caliph on earth, holding a pact with him. 25 After al-Ṭabarī, op. cit., vol. 1, p. 449. Qurʾān 5:14 states: “Then We made you successors in the land after them so that We may observe how you will do”. Also, in this sense it is the commentary of Rashīd Riḍā, according to which all men are the Caliphs of God on earth. This doctrine is followed also by al-Mawdūdī but with an important constitutional connotation. See: Rashīd Riḍā, 7DIVĪUDO-0DQćU, Dār al-Manār, Cairo 1947, vol. 1, p. 258. 23 al-Ṭabarī, op. cit., Vol. 1, p. 452; al-Qurṭubī, op. cit., Vol. 1, p. 395; al-Bayḍawi, op. cit., Vol. 1, p. 68. For al-Ṭabarī vice versa is not considered Caliph who disseminates corruption on earth and does not conform to the revelation. For al-Qurṭubī Adam is NKDOĪID$OOćK, i.e. Caliph of God, because he was also the first Prophet (al-UDVŠODO-awwal). The analysis of this verse gives the jurist the pretext (p. 396 edition used here) to briefly explain the doctrine of the Caliphate, starting with the question of its necessity. 24 Ibn Kathīr, 7DIVĪUDO-4XUʯćQDO-ʰ$ʲĪP, Maktaba Awlād al-Shaykh li’lTurāth, Cairo 2000, Vol. 1, p. 337; M. al-ʿAshmāwī, op. cit., p. 98. See also: M. Hilmi, 1LʲćPDO-NKLOćIDIĪpO-fikr al-LVOćPĪ, Dār al-Kutub al-ʿIlmiyya, Beirut 2004, p. 319. 25 S. Quṭb, )ĪʲLOćODO-4XUʯćQ, Dār al-Shuruq, Cairo 1982, Vol. 1, pp. 56–57. 22

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its cessation, a new covenant is struck up with the people of Israel, but it is also destined to fail. The scope that the Qurʾān ascribes to the NKDOĪID, then, is to bear evidence of God’s creation, without any political or constitutional implication. Even Qurʾān 3:28 “Let not believers take disbelievers as allies rather than believers,” according to al-Ṭabarī and al-Bayḍāwī, has no political implication. In fact, they place emphasis only on religious significance and the claim that God has forbidden believers to follow the unbelievers in their religion, since such a choice qualifies as apostasy. The Qurʾān does not refer directly to the rulers, but rather to every believer, warning against abandoning Islam. Rather, by Qurʾān 3:159 “and consult them in the matter. And when you have decided, then rely upon God” and Qurʾān 42:38 “and whose affair is [determined by] consultation among themselves”, some political principles are taken. For al-Ṭabarī, the opinions of the scholars differ both as how to operate the consultation and what should necessarily constitute the subject. According to one interpretation, VKŠUć is ordained on all Muslims for the purpose of decision-making, especially in military matters and more generally on the conduct of the community. 26 According to another interpretation, consultation is imposed to clarify the opinion of the elders and, therefore, to take the best point of view, before deciding on the matters. 27 Al-Ṭabarī quotes a tradition concerning those invited to do the consultation which is not limited to the companions of the Prophet, but was open to every believer. The discussion should cover all the obscure matters, on which there are no answers in the Qurʾān and the sunna. In this sense, for al-Qurṭubī, VKŠUć is one of the principles of shariʿa and is a way to practice ijWLKćG. Quṭb defines it as the foundation of communitarian life in Islam and the best way to reach the truth. 28 Other Qurʾānic verses provide useful information on the subject under consideration. About Qurʾān 4:58, “Indeed, God commands you to render trusts to whom they are due and when you judge between people to judge with justice”, al-Ṭabarī refers to disagreements al-Ṭabarī, op. cit., Vol. 7, p. 343; al-Bayḍawi, op. cit., Vol. 2, p. 45. al-Ṭabarī, op. cit., Vol. 7, p. 344. 28 al-Ṭabarī, op. cit., Vol. 7, p. 345; al-Qurṭubī, op. cit., Vol. 5, p. 380; Sayyid Qutb, op. cit., Vol. 4, p. 500. 26 27

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about the interpretation of “whom they are due”. For some, they are the wuOćWDO-amr, i.e. those who are invested with power, who are responsible to judge with fairness and in accordance with Islamic law. 29 What should be the judgments is shown in Qurʾān 5:101–102 “O you who have believed, do not ask about things which, if they are shown to you, will distress you. But if you ask about them while the Qurʾān is being revealed, they will be shown to you. God has pardoned that which is past; and God is Forgiving and Forbearing”. The commentary of al-Ṭabarī is that the first part of this verse refers to the invitation of the Prophet to the community not to ask questions or explanation, except on parts of the Qurʾān that are difficult to understand. The second part refers to the obligations established by God, like legal and illegal actions indicated in the Qurʾān. In addition, there are some areas in which God has not given indications where people can consult and act accordingly. 30 The verse Qurʾān 4:58 can be read along with Qurʾān 4:59 “O you who have believed, obey God and obey the Messenger and those in authority among you”. In support of this doctrine alṬabarī also reports the tradition: “He who obeys me, obeys God and who rebels against me, rebels against God; whoever obeys the ruler, obeys me, and those who rebel against the governor, rebelled against me”. 31 However, al-Ṭabarī warns that there is no agreement on the meaning of “Obey God and obey the Messenger”. He also mentions Qurʾān 48:10 “Indeed, those who pledge allegiance to you, [O Muhammad] they are actually pledging allegiance to God” and also Qurʾān 18:28 “and do not obey one whose heart We have made heedless of Our remembrance and who follows his desire and whose affair is ever [in] neglect”. According to some scholars, al-Ṭabarī, op. cit., Vol. 8, p. 490; al-Bayḍawi, op. cit., Vol. 2, p. 80; al-Qurṭubī, op. cit., Vol. 6, p. 425. According to al-Qurṭubī the appeal to judge according to justice is directed to the governors (XPDUćʯ, ZŠOćW, ʚXkNćP) of the community that is towards those who exercise an institutional ZLOć\Don believers. 30 al-Ṭabarī, op. cit., Vol. 11, p. 99. 31 al-Ṭabarī, op. cit., Vol. 8, p. 493; al-Bayḍāwī, op. cit., Vol. 2, p. 81; al-Qurṭubī, op. cit., Vol. 6, p. 428. 29

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these verses corroborate the hierarchy among the sources of the Islamic law: the Qurʾān, the sunna, followed by human interpretations and judgement. 32 There are different interpretations as regards the expression “those in authority among you”, too. 33 For certain interpretations, they are the military commanders to whom the Prophet delegated, from time to time, the command of missions. Based on another interpretation, the verse refers to the Sultans, i.e. those in power. 34 The opposite opinions identify those who have the authority with the scholars defined ahl al-ʰLOPZDpO-fiqh, ʰXODPćʯ and IXTDKćʯ. 35 Finally, al-Ṭabarī shows the most accepted interpretation, according to which the text refers to the Imam, to whom is due obedience. This doctrine is accepted by VXQQĪ jurists and most used in the theoretical construction of the Caliphate. The same al-Ṭabarī, quoting a large number of traditions, seems to prefer it over other hypothesies. Even al-Qurṭubī indicates that the verse refers to all believers requiring their obedience as long as the Imam does not commit evil. If this happens, the obligation of obedience lapses. 36 Other relevant verse are Qurʾān 24:55 “God has promised those who have believed among you and done righteous deeds that He will surely grant them succession [to authority] upon the earth just as He granted it to those before them and that He will surely establish for them [therein] their religion which He has preferred for them and that He will surely substitute for them, after their fear, security, [for] they worship Me, not associating anything with Me. But whoever disbelieves after that – then those are the defiantly disobedient”. Al-Ṭabarī states that these verses call for men to obey God and the Prophet in what they have commanded, in exchange for the promise to excel upon the wicked. In this case the verb istakhlafa expresses the succession in time to other people. al-Ṭabarī, op. cit., Vol. 8, p. 495. Ibid., p. 496. 34 al-Ṭabarī, op. cit., Vol. 8, p. 498. 35 al-Ṭabarī, op. cit., Vol. 8, p. 500; al-Bayḍāwī, op. cit., Vol. 2, p. 80; Ibn Kathīr, op. cit., Vol. 4, pp. 136–137. This author reports the hypothesis that the obedience should be directed to the ʰXODPćʯ. 36 al-Ṭabarī, op. cit., Vol. 8, p. 502; al-Qurṭubī, op. cit., Vol. 6, p. 428. 32 33

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Finally, for Ibn Kathīr, God has made mankind the witness of his power and then chose some Imams and governors to guide the believers. 37

3. THE CALIPHATE AS DEFINED BY THE PROPHETIC S UNNA

The traditions related to the Caliphate are generally divided into sunan qawliyya and VXQDQʰDPDOL\\D. The first group includes the sayings of the Prophet on constitutional argument while the second includes actions that led to the foundation of the Islamic state. The ʚDGĪWK related to the first group are included in the canonical collections, as in the two ʛDʚĪʚ of al-Bukhārī and Muslim. In al-Bukhārī’s collection relevant are the chapters related to jLKćG and the NLWćEDODʚNćP, whereas in the Muslim’s work the NLWćE DO-LPćUD is totally dedicated to this topic. The most quoted traditions are: “He who obeys me, obeys God and who rebels against me, rebels against God; whoever obeys the ruler, obeys me, and those who rebels against the governor, rebelled against me” 38 and “There is no obedience to an order involving sin. There is no obedience where there is a sin against God”. 39 These texts provide the constitutional basis of the principle of due obedience to the ZćOĪ DO-amr and corroborate Qurʾān 4:59. The necessity to establish a political authority is expressed in another text: “But whosoever turns away obedience and joins to another group and then dies, he dies as in the time of jćKLOL\\D”. Here obedience is not only recommended, but its break is listed as heretical. Death in the state of jćKLOL\\D implies disbelief and those al-Ṭabarī, op. cit., Vol. 17, p. 346; al-Bayḍāwī, op. cit., Vol. 4, pp. 111–112; al-Qurṭubī, op. cit., Vol. 15, p. 320; Ibn Kathīr, op. cit., Vol. 10, p. 263. 38 Muslim ibn al-Ḥajjāj al-Qushayrī al-Nīsābūrī, ʛDʚĪʚ 0XVOLP, kitāb al-Imāra, n. 1835, Dār Ṭayyiba li’l-Nashr wa’l-Tawzīʿ, Riyāḍ 2005, p. 891; al-Bukhārī, al--ćPLʰ DO-ʛDʚĪʚ, kitāb al-aḥkām, n. 7137, al-Maṭbaʿa alSalafiyya wa-MaktAbūhā, Cairo 1979, p. 328; A.J. Wensinck, $KDQGERRNRI early muhammadan tradition, Brill, Leiden 1927. 39 Muslim, op.cit., NLWćE DO-LPćUD, n. 1839–1840, p. 892; al-Bukhārī, op. cit., NLWćEDO-DʚNćP, n. 7145–7146, p. 330. 37

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who refuse to submit to the Imam are considered as a NXIIćU, standing outside of the community. 40 In another ʚDGĪWK the principle of responsibility is stated: “Each of you is a shepherd and responsible for his flock. The Imam is a shepherd for the people and responsible for it. The man is a shepherd for the members of his family and responsible for it. The woman is a shepherd for the members of the family of her husband and her children and responsible for them. The servant is a shepherd for the finances of his master and responsible for them, and each of you is a shepherd and is responsible for his flock”. 41 Based on the traditions reported below, some jurists established that the Imam should belong to the tribe of the Prophet, the EDQŠ4XUD\VK. However, other scholars have questioned the veracity of these texts and rejected them as QXʜŠʜ PXWDZćWLUD: “The Imam belong to Quraysh”; “There will always be a Quraysh leader for men”; “The Caliph belongs to Quraysh, the legal authority to auxiliaries while the call to prayer to the Abyssinians”; “The Imam belong to Quraysh: the righteous rule among the righteous and the weak among the weak”. 42 However, the following tradition was reported to deny affiliation to the Quraysh as fundamental to become Caliph: “Oh men, obey God even if He has sent among you as governor a maimed Abyssinian slave”. 43 The VXQDQ ʰDPDOL\\D are extracted from the VĪUD and trace an outline of the Prophet as founder and highest authority of the Islamic state. Chronicles report that his policy was always referred to the shariʿa especially when he intended to issue a judgement or take a decision after consulting his companions. All powers were atMuslim, op.cit., NLWćE DO-iPćUD, n. 1848–1849, p. 897; al-Bukhārī, op. cit., NLWćEDO-DʚNćP, n. 7143–7144, p. 329–330. 41 Muslim, op.cit., NLWćEDO-LPćUD, n. 1829, p. 886–887; al-Bukhārī, op. cit., NLWćEDO-DʚNćP, n. 7138, p. 328–329. 42 al-Bukhārī, op. cit., NLWćE DO-LPćUD EćE al-XPDUćʯ PLQ TXUD\VK, n. 7139–7140, p. 328. 43 Muslim, op. cit., NLWćE DO-LPćUD, n. 1838, p. 892–893. See also: P. Crone, “Even an ethiopian slave: The transformation of a sunnī tradition”, in %XOOHWLQ RI WKH 6FKRRO RI 2ULHQWDO DQG $IULFDQ 6WXGLHV, vol. 57, no. 1, Cambridge University Press, London 1994, p. 60. 40

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tributed to him, since Muḥammad was in charge of legislating, transmitting the divine law and judging the offenses. The jurisprudence discussed in the next sections is entirely based on these few normative texts, contained in the Qurʾān and the sunna which also represent the premises for the modern theories of Islamic constitutionalism.

4. THE SUNNĪ JURISPRUDENCE OF THE CALIPHATE: EARLY DEVELOPMENTS

4.1. Ibn al-MuqaIIaʰ Although not a professional jurist, Ibn al-Muqaffaʿ is considered the first scholar to have dealt with the development of the Islamic system of government. His work, the 5LVćOD IĪpO-ʛDʚćba, was composed before the systematization of the sources of law by Abū ʿAbd Allāh Muḥammad ibn Idrīs al-Shāfiʿī (767–820 CE). 44 Islamic law knew a comprehensive formative stage between the eighth and ninth centuries, after which it dates back to the birth of Islamic legal science (ʰLOPDO-fiqh). 45 The 5LVćOD, divided into seven sections plus a final conclusion, is structured like a mirror for princes, a handbook of tips for the Caliph. The recipient was Abū Jaʿfar ʿAbd Allāh ibn Muḥammad al-Manṣūr (712–775 CE) identified as $PĪUDO-0XʯPLQĪQ and distinct from the Umayyad rulers defined negatively wuOćWDO-sharr. The suggestions to the statesman range from the way to maintain the troops in the Khurasan provinces, to drafting an edict containing the rules of war or the kind of employees which the governor A.K.S. Lambton, State and government in medieval Islam, Oxford University Press, Oxford 1981, p. 49. See also: F. Gabrieli, “L’Opera di Ibn al-Muqaffaʿ” in Rivista di Studi Orientali, vol. 13, Reale Accademia dei Lincei, Roma 1932, p. 197; B. Lewis, “Islamic concept of revolution”, in P.J. Vatikiotis (edited by), Revolution in the Middle East, George Allen & Unwin, London 1972, pp. 30–31. 45 J. Schacht, “The schools of law and later development of jurisprudence” in M. Khadduri – H.J. Liebesny, Law in the Middle East, The Middle East Institute, Washington 1955, p. 62; Id, $Q LQWURGXFWLRQ WR Islamic Law, Oxford University Press, Oxford 1964, p. 55. 44

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should surround himself with. 46 While men of dubious morality are avoidable, it is better to have men of noble birth or ʰXODPćʯ to be consulted before taking any decision. 47 These arguments are in fact merely specious and are used by Ibn al-Muqaffaʿ to introduce the thorny question of the legitimacy of the ruler. Although it is very widely accepted, says Ibn al-Muqaffaʿ, that the believers must offer obedience to the ruler, there are also different positions prompted by those who think that it is not permissible to obey the ruler who commits sin. 48 For Ibn al-Muqaffaʿ, this doctrine, endorsing the coexistence of two or more sovereign, must be discarded. According to another theory, the believers should owe obedience to the Caliph unconditionally, regardless of his moral conduct. For Ibn alMuqaffaʿ, this opinion is to be rejected, even more than the previous, since it allows disobedience to God. The best choice is, therefore, to pay obedience to rulers but only after having ackowledged the qualities to hold this office. The 5LVćOD focuses on the prescriptive rules of the shariʿa, prescriptions on which God has not granted any authority to man. Therefore, the ruler who, for example, forbids fasting or prayer, acts in an area in which he has no power. In this case, the believers are allowed not to bear obedience to the Caliph. Conversely, obedience is due to the Caliph who acts righteoulsy in those areas in which he is competent, because God has entrusted him with authority. These are various tasks that affect the administration, inE. Francesca, Il principe e i saggi: potere e giustizia nel medioevo Islamico, Polimetrica, Monza 2005, p. 51. Cfr. original Arabic text, p. 7. 47 On the DPćQ in Ibn al-Muqaffaʿ see: A.K.S. Lambton, op. cit., p. 52; E.I.J. Rosenthal, op. cit., p. 72; P. Crone, op. cit., p. 130; M.Q. Zaman, op. cit., 1997, p. 5; S.D. Goitein, “A turning point in the history of the Islamic State” in S.D. Goitein (edited by), Studies on Islamic history and institutions, Brill, Leiden 1966, pp. 149–167; J. Schacht, The origins of the muhammadan jurisprudence, Clarendon Press, Oxford 1950, pp. 58–59; P. Crone – M. Hinds, op. cit., pp. 85–87. See also: E. Francesca, op. cit., pp. 54– 55/10; A.E. Mayer, “The Shariah: methodology or rules?” in N. Heer (edited by), Islamic Law and jurisprudence, University of Washington Press, Washington 1990, p. 179. 48 E. Francesca, op. cit., p. 55/11; A.K.S. Lambton, op. cit., p. 53. 46

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cluding the organization of military expeditions, the collection of taxes and also the right to judge according to personal opinions. 49 Following this idea, Ibn al-Muqaffaʿ distinguishes two spheres of law: mandatory issues, which are not interpretable, and discretionary issues, considered variable and, therefore, interpretable. The first concerns those fundamental areas on which even the Caliph has no discretion: conducting daily prayers, the fasting of the holy UDPDʘćQ, the observation of the pilgrimage, the application of the penalties sanctioned by the Qurʾān and, in general, the abstention from what God has clearly forbidden. If these areas are neglected, the obligation to obey the Caliph falls down. On the other side, the tasks for which the Caliph has discretion and interpretative faculties, such as expression of personal opinion, are the administration and all the political duties. He also is allowed to define the military strategy, share the booty, appoint and remove the officers, interpret issues without any legal precedent, enforce criminal law, guide military expeditions and sign armistice. The reason for introducing this distinction is, according to Ibn al-Muqaffaʿ, that every human society is based on two principles: religion and rationality. The first contains many complex concepts that defy human understanding; the revelation, intelligible through reason, has been sent to allow men to practice religion. Therefore, God chose to reveal clearly only those rules that man would not understand. Other issues, including political matters, are subject to the opinion of those who have authority (ZXOćW al-amr), i.e. the Caliphs. 50 4.2. AbŠ YŠsuI Abū Yūsuf Yaʿqūb Ibrāhīm al-Anṣārī (729–798 d.C.) was the first jurist to deal in detail with constitutional law, especially with taxation. His treaty, .LWćE DO-.KDUćj, written to the Caliph Hārūn alRashīd (763–809 CE), regards the system of taxation as an area closely connected to the theory of government. 51 As with Ibn alE. Francesca, op. cit., p. 56/11. E. Francesca, op. cit., p. 57/11; E.I.J. Rosenthal, op. cit., p. 73. 51 Both the collection of taxes and the expediture fall among the rights of God. In some legal works, the tax-related topics are included in 49 50

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Muqaffaʿ, Abū Yūsuf worked in the Abbasids administration, but in a different role: he was the first public official to become supreme judge, the highest office in the judiciary. The introduction of his work is an important source for reconstructing the doctrine of the state in its first achievements. It is clear that the author’s intention was not only to provide the Caliph advice on how to best administer the empire economically, but also to show him his powers in order to correct those practices at odds with the Islamic law. 52 The main concern of Abū Yūsuf seems to have been to emphasize that there is no other source of authority other than God, who, through His choice, makes the Caliph his representative on earth. However, Abū Yūsuf fails to deal with the way in which the Caliph accesses his office. In the introduction he warns the Caliph that God, after having appointed him as ZDOĪ, has placed his trust upon him. For this reason, the Caliph holds great powers from which he could derive rewards but also responsibilities and punishments. This burden could not exist without the divine will because, writes Abū Yūsuf, “…any act does not occur without the divine authorization”. 53 The work is corroborated by Qurʾānic verses like “one day is with the Lord as a thousand years on earth that you count”. 54 The invitation to live according to certain moral qualities can be explained in light of the fact that God has appointed as custodians of power his representatives on earth (NKXODIćʯ) and has given them the chapters relating to ʰLEćGćW (acts of worship). They include: purification, prayers, fasting, almsgiving and taxes, MLKćG, economic relations with non-Muslims and pilgrimage. J. Schacht, op. cit., 1964, pp. 40–41 and pp. 44–45; A.N. Poliak, “Classifications of lands in the Islamic Law ant its technical terms”, in 7KH$PHULFDQ-RXUQDORI6HPLWLF/DQJXDJHVDQG/LWHUDWXUHV, vol. 57, no. 1, The University of Chicago Press, Chicago 1940, pp. 50–62; W.B. Hallaq, The origins and evolution of Islamic Law, Cambridge University Press, Cambridge 2005, pp. 185–186. 52 E. Fagnan (edited by), Le livre de l’impôt foncier, Librairie Orientaliste Paul Geuthner, Paris 1921, p. 1 ; Abū Yūsuf, .LWćE DO-.KDUćM, Dār alMaʿrifa li’l-Ṭibāʿa wa’l-Nashr, Beirut 1979, p. 3. See also: M.Q. Zaman, op. cit., p. 13; A.K.S. Lambton, op. cit., p. 56. 53 E. Fagnan (edited by), op. cit., p. 1; Abū Yūsuf, op. cit., p. 3. 54 This verse is contained in Qurʾān 22:47.

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a light to illuminate the dark issues. 55 This light serves the rulers to correctly apply the laws prescribed in the Qurʾān and recognize the rights of every believer. On the contrary, the conduct of Caliph out of morality causes injustice and lack of faithfulness among the people. In this case disobedience would become lawful. Abū Yūsuf, however, never pushes the matter to this extent. Indeed, he argues that committing acts of disobedience is to deny the received divine grace. It should be noted as Abū Yūsuf gives no definition of the Caliphate, but merely provides many traditions to legitimize his idea of unconditional obedience to established power, the main argument of his own doctrine. In a ʚDGĪWK, the Prophet made a distinction between righteous and unrighteous Imams but he did not explicitly prohibit the submission to the second. This hypothesis is also reinforced by the tradition relating to the Abyssinian slave. 56 Keeping the statu quo has many legal bases and Abū Yūsuf says that no tradition allows the community to rise up against the Caliph. The explanation for such insistence is linked to the divine origin which the political authority relies upon, according to Abū Yūsuf. 57 The rightful Caliph can not be challenged, nor can his authority be questioned. If this happens, the community is obliged to deE. Fagnan (edited by), op. cit., p. 5; Abū Yūsuf, op. cit., p. 7. Ibid., pp. 8–9. According to another tradition, Muḥammad said: “Whoever among men, in the day of judgment, will be the most loved and close to me as to rank, he will be the right Imām (ʰćGLO) while he who, in the day of judgment, will be the most hated and will have deserved more severe punishment, he will be the unjust Imām (MćʯLU)”. This tradition is also reported by Ibn Ḥanbal and al-Tirmidhī. Moreover, the tradition of the Abyssinian slave is not reported to deny the need for the Caliph to come from the quraysh but, on the contrary, to corroborate the need for unconditional obedience. 57 A.K.S. Lambton stresses that in another edition of Abū Yūsuf’s manual appears the suggestion to Hārūn al-Rashīd, to personally attend the hearing held at the 'ćUDO-0DʲćOLP. In this way, the Caliph would have acquitted the function of administering justice. However, this passage does not appear in the edition of the Kitāb examined here nor in translation by E. Fagnan. 55 56

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fend his governance. At the same time, according to other traditions, the community is invited to oversee the conduct of the Caliph, correcting his mistakes. It is clear that for Abū Yūsuf, unlike for Ibn al-Muqaffaʿ, the Caliphate, given its contractual nature, attributes certain rights to both parties: the ruler must take care of the people, performing the functions which God chose him for. The community, in turn, must pay allegiance and join the administration of the state, correcting the decisions of the ruler in case of errors. 4.3. al-Jćʚiʲ and Ibn Qutayba Al-Jāḥiẓ Abū ʿUthmān ʿAmr ibn Baḥr al-Kinānī al-Baṣrī (776–869 CE) belonged to a family of PDZćOĪ affiliated to the EDQŠ.LQćQD. An exponent of the Muʿtazila, al-Jāḥiẓ was author of political treatises in epistolary form and aimed to justify the seizure of power of the Abbasids. 58 Not all believers had accepted the new rulers, especially the descendants of the Umayyads and shīʿī factions. In this climate, the Caliph al-Maʾmūn (786–833 CE) understood that he could not count on the support of the whole community, despite the defeat of his brother al-Amīn (787–813 CE) and the VKĪʰĪ repression. 59 In the epistle entitled %D\ćQ PDGKćKLb al-VKĪʰa, after confuting the position of ]D\GĪVKĪʰa, hostile to the established power, the author demonstrates the need for the authority. Al-Jāḥiẓ distinguishes between three types of charismatic leaders: Messenger, Prophet and Imam. The Messenger is both Prophet and Imam, the Prophet is Imam but not Messenger, and the Imam is neither one nor the other. The Messenger is at the top of the hierarchy, since he is conA.K.S. Lambton, op. cit., p. 59. A. Black, “Religion and politics in western and Islamic political thought: a clash of epistemologies? in The Political Quarterly, vol. 81, no. 1, Wiley-Blackwell, Hoboken 2010, p. 118. 59 C. Pellat, The life and works of Jahiz, Routledge, London 1969, p. 16. Despite the difficulty of dating the work of this writer, according to C. Pellat, some of the texts containing political and constitutional concepts are prior to the second century of the hegira. Most of the works have been written in Baghdad, during the first half of the third century, when al-Jāḥiẓ, moving to the capital of the Abbasids, helped these rulers to justify their own power. 58

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sidered the best among men, followed by the Prophet and the Imam. 60 In the epistle entitled .LWćEWDʜZĪEʰ$OĪIĪWDʚNĪPDO-ʚDNDPD\Q, Ali is compared with his rival Muʿāwiya. Despite the latter possessing intelligence, energy and courage, his appointment as Caliph was deemed unlawful. In fact, al-Jāḥiẓ believes that to aspire to this title, several special merits known to all the Muslims are necessary. This principle is crucial because the community can be in agreement on the appointment of the Caliph only after discussing and carefully pondered, avoiding the outbreak of civil war. In his .LWćE DO-ʰ8WKPćQL\\D, al-Jāḥiẓ begins his exposure discussing the legitimacy of the succession to the Prophet. In this work, the theory of the Caliphate is better expressed. 61 To avoid anarchy, the community needs to establish the authority of one individual Caliph, since two governors would be in contrast with one another. Al-Jāḥiẓ argues that the task to appoint a Caliph, although perceived by all believers, is reserved for the aristocracy capable of understanding the importance of having an authority. 62 Then, appointing a Caliph is required but this obligation remains valid only if there is a worthy person, possessing all the qualities to gain access to the office. 63 Whether the legitimate aspirant to the position faces an usurper, the appointment of the Caliph is not possible and dissimulation (taqiyya) is needed. For al-Jāḥiẓ, there are three ways to access the Caliphate: the first consists of the overthrow of the unjust ruler, the opposite doctrine advocated by Abū Yūsuf. The second way is the free choice by a smaller council of elders. The third is the unanimous choice of the community, generally dictated by external factors such as a threat. 64 C. Pellat, p. 64 ; A.K.S. Lambton, op. cit., p. 59. C. Pellat, “L’Imamat dans la doctrine de Jahiz”, in Studia Islamica, no. 15, Maisonneuve & Larose, Paris 1961, p. 23. 62 The need to have a spiritual as well as a political leadership, is made clear in the .LWćE ZXMŠE DO-,PćPD, translated in C. Pellat, op. cit., 1961, pp. 38–39. 63 C. Pellat, op. cit., p. 80; C. Pellat, op. cit., 1961, p. 41. 64 A.K.S. Lambton, op. cit., p. 61; C. Pellat, op. cit., 1961, pp. 29 and 47. 60 61

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The Caliph must be chosen among the best of the community because protecting the common interests is the most important duty of those in authority. Also, the Caliph must possess certain qualities: intelligence and intellectual skills must go hand in hand with his erudition. Moreover, God requires the appointment of a person with high moral qualities by which he is known as the best among the believers. 65 Abū Muḥammad ʿAbd Allāh Ibn Muslim Ibn al-Qutayba (828–885 CE) was author of adab literature and, even though he began his career studying theology, he ended up acquiring a certain reputation in other fields of knowledge. 66 Ibn Qutayba belonged to the group of so-called DʜʚćEDO-ʚDGĪWK, those, who believed that the prophetic sunna was the only legitimate source of law. Much of his political thought is in support to the VXQQĪ orthodoxy and aims to awaken the interest to the traditions. 67 In his .LWćE DO-ʰ$UDE, Ibn Qutayba states two basic principles of the Caliphate: only the Arabs, belonging to EDQŠ4XUD\VK, can aspire to this position, but the non-Arabs must be integrated within the state. Moreover, Ibn C. Pellat, op. cit., p. 66; A.K.S. Lambton, op. cit., pp. 60–64. I.M. Husseini, The life and works of Ibn Qutayba, American Press, Beirut 1950, p. 71; G. Lecomte, Ibn Qutayba (mort en 276–889), l’homme, son oeuvre, ses idées, Institute français de Damas, Damascus 1965, p. 215. The study of adab, especially in the early jurists, should be considered complementary to the study of the sources of law (Qurʾān and sunna). Only in a broad sense the genre can be equated to the belles lettres. In the early centuries of Islam there was no distinction in the study of certain disciplines. Lately some differences among the sciences emerged and thus a hierarchy was established. Sciences like the commentary of the Qurʾān, history, genealogy, grammar, philology, lexicography, became autonomous but at the time of Ibn Qutayba were encased in the adab. 67 Cfr. Encyclopaedia of Islam, $ʜʚćEDO-ʚDGĪWK, 2° ed., Brill, Leiden. This group is also known as the “traditionists” for their use of the sunna in opposition to the “living” sources of Islamic law. One of the cardinal principles of this movement was fierce opposition to the analogy (TL\ćV) unless a Prophetic tradition in support of a legal decision is found. The origin of this group was a reaction to the ahl al-UDʯ\ i.e. those scholars, in the second century of the hegira, who judjed by personal opinions. 65 66

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Qutayba called the believers to obey the Imam, whatever his personal dignity is, offering full support to the Abbasids. As already seen with Abū Yūsuf, Ibn Qutayba denied the possibility of any rebellion against the unjust Imam, since the believers are tied to their spiritual guide beyond his moral conduct. 68

5. THE NECESSITY FOR THE CALIPHATE The jurisprudence of the four VXQQĪ schools agrees that the Caliphate is a contract composed by three pillars: 1) al-ʰćTLG, the community who chooses the governor; 2) al-PDʰTŠG ODKX, namely he who is offered the role of Caliph; 3) al-PDʰTŠG ʰDOć\KL, that is the purpose, being the content of a contract summarized by the maxim ʚLUćVD al-GĪQZD-VL\ćVDDO-GXQL\ć. 69 Such a deal would not be complete without the presence of all of these foundational elements. Moreover, the necessity for the Caliphate has already been stated by the oldest jurisprudence. 70 The necessity derives from the third source of Islamic law, the consensus of the jurists of each era (ijPćʰD). 71 After the Prophet’s death, which occurred in 632 CE, the Companions agreed on the idea that the Muslim communities should have an established government. Only few muʿtazilī and kharījī scholars refused this doctrine. While the Caliphate was qualified by the VXQQĪs as an obligation imposed on the community (IDUʘ NLIć\D), the muʿtazilī and kharījī schools classified it as legally indifferent (PXEćʚ or jćʯL]). 72

G. Lecomte, op. cit., p. 111; A.K.S. Lambton, op. cit., p. 65. K. Rabbaʿ, 1DʲDUL\\ćW DO-NKXUŠM IĪpO-fiqh al-VL\ćVĪ DO-iVOćPĪ, Dār alKutub al-ʿIlmiyya, Beirut 2004, p. 28; Abū al-Ḥasan al-Ashʿarī, .LWćE DO/XPDʰ, Maṭbaʿa Miṣr, Cairo 1955, p. 133; E. Tyan, op. cit., p. 314. 70 Y. Qurʿush, ʝXUXT LQWLKćʯ ZLOć\D DO-ʚXNNćP IĪ DO-VKDUĪʰD DO-LVOćPL\\D wa’l-QXʲXPDO-GXVWŠUL\\D, Muʾassasa al-Risāla, Beirut 1987, pp. 17–19; ʿA. alDumayji, al-,PćPD DO-ʰXʲPć ʰLQGD DKO DO-sunna wa’l-MDPćʰD, Dār al-Raṭība, Riyad 1987, p. 45; M. Hilmi, op. cit., p. 325. 71 J. al-Murakkabi, al-.KLOćID DO-LVOćPL\\D ED\QD QXʲXP DO-ʚXNP DOPXʰćʜLUD, Jamaʿa Anṣār al-Sunna al-Muḥammadiyya, Idārat al-Daʿwa wa’lIʿlān, Lajnat al-Baḥth al-ʿIlmī, Cairo 1993, p. 87. 72 J. al-Murakkabi, op. cit., pp. 87–89. 68 69

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According to the majority of VXQQĪ jurists,we also find in the Qurʾān some compelling evidence of the need for the Caliphate, even if the sacred Book does not outline any system of government. Qurʾān 4:59, for example, imposes the submission to the ZDOĪ al-amr thus assuming that he has been appointed; Qurʾān 5:49 obliges to judge according to the shariʿa, already assuming the existence of an appointed authority. 73 The jurists who stressed the necessity of the Caliphate are defined as wujŠEL\\ŠQD, including sXQQĪV, Imāmī and zayidī shīʿa, the muʿtazilī and kharījī schools with the exception of few scholars. The main difference among those who support the necessity for the Caliphate concerned its foundation, that is, if it was legal (VKDUʰ) or rational (ʰDTO). The argument of those who supported the second thesis was to believe preferable by logic the presence of an authority, source of social order, to anarchy. The first group, while agreeing with the former, believed that the question of the appointment of the Imam fell among the tasks provided for by the shariʿa. Those, however, who deny the necessity for the Caliphate are defined jDZć]L\\ŠQD, since they consider this institution is legally permitted but not required. Historically, it was a small group of PXʰWD]LOĪ and khćriMĪ scholars. 74 Their arguments in support of this idea are many and varied but, firstly, concern the principle of equality. According to this doctrine, the appointment of the Imam is contrary to the egalitarian spirit of Islam. The appointment, undertaken by a restricted group of representatives, is at odds with the spirit of the shariʿa, which requires unanimous opinions. In addition, the appointment could lead to an error of judgment, allowing the election of an unqualified candidate or someone who might commit injustice because of his fallible character. The thought of al-Māwardī is more elaborate and organic. According to this scholar, the Caliphate is necessary to protect Islam Qurʾān 5:49 states: “And judge, [O Muhammad], between them by what God has revealed and do not follow their inclinations”. K. Rabbaʿ, pp. 23–24; ʿA. al-Dumayji, op. cit., pp. 47–48 and 57. 74 P. Crone, “A statement by the najdiyya kharijites on the dispensability of the Imamate”, in Studia Islamica, no. 88, Maisonneuve & Larose, Paris 1988, pp. 55–76. 73

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and to govern the world. The authority, writes the jurist, comes from God and is given to the Caliph, who in turn is able to delegate to a lower level. For this reason, his appointment is unanimously recognized by believers necessary to realize the prophecy (NKLOćIDWDO-nubuwwa), to defend the religion (ʚLUćVDDO-GĪQ) and administer the worldly matters (VL\ćVDDO-GXQL\ć). 75 The one in power has a religious nature since faith is the source of obedience. But power is also shaped by military might, which concretely paves the way to the government. Al-Māwardī also provided for a more systematic formulation of the appointment procedures. Although the signing of the contract involves the community, the subjects of the contract are just two: the ahl al-LNKWL\ćU, i.e. the representatives designated to appoint the governor, and the ahl al-,PćPD, i.e. those in possession of the qualities required to fill this office. The appointment of a single Caliph is allowed since he represents the unity of the community, based on Qurʾān. 3:103. 76 The ahl al-LNKWL\ćU must possess four characteristics: justice, knowledge necessary to know the conditions of eligibility of the Caliph, good judgment, and also wisdom. Justice is divided into major and minor: the first involves the practice of religion, as abstaining from committing capital sins and, as much as possible, soft mistakes, too. The second kind of justice regards he-

al-Māwardī, al-$ʚNćP DO-VXOʞćQL\\D ZDpO-ZLOć\ć DO-GĪQL\\D, Dār alKutub al-ʿIlmiyya, Beirut 2006; E. Fagnan (edited by), Les statuts gouvernementaux ou règles de droit public et administratif, Typographie Adolphe Jourdan, Paris 1915; H.K. Sherwani, Studies in muslim political thought and administration, Procupine Press, Philadelphia 1977, pp. 101–102; E. Tyan, op. cit., p. 303. 76 The jurist distinguishes the two situations using different verbs: yakhtaru in the first case and \DQWDʜLEX in the second. The verb form ikhtara means “to select, choose” while LQWDʜDED properly means “to be appointed”. Qurʾān 3:103 states “And hold firmly to the rope of God all together and do not become divided”. See also: Y. Qurʿush, op. cit., p. 130. 75

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retical acts and wicked thoughts. Good judgment and wisdom are required to determine who is worthy for being Caliph. 77 Another jurist dealing with this topic was Abū Bakr Muḥammad ibn al-Ṭayyib ibn Muḥammad ibn Jaʿfar ibn al-Qāsim al-Bāqillānī, who supported the ashāʿrī thesis that the necessity for the Caliphate derives by revelation, not by reason. Its functions, which make the Caliph necessary, are: defending the community; contrasting oppression; implementing the ʚXGŠG punishments; dividing the booty among the Muslims; securing the pilgrimage (hajj). This jurist, listing the duties of the Caliph, connects his necessity to the application of the shariʿa. 78 Even Abū Manṣūr ʿAbd al-Qāhir Ṭāhir al-Baghdādī highlights the principle of necessity, although he reports some differences among the opinions. Like al-Bāqillānī, for him the Caliphate is mandatory on the basis of revelation. The companions of the Prophet were in agreement on this point, since the shariʿa contains rules that none, except the Caliph, can implement. 79 However, unlike al-Bāqillānī and al-Māwardī, al-Baghdādī admits the possibility of the simultaneous election of two Caliphs, but only if they are separated by the sea, as the Umayyad Caliphate in Spain and the Abbasids in Baghdad. Therefore, if there is not such spatial division between the two territories, the Muslims who are under the authority of the second Caliph are rebels (EXJKćW) and as such should be fought.

H.K. Sherwani, op. cit., p. 102. See also: E. Tyan, op. cit., pp. 347– 350; ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 53; S. Dabbus, op. cit., pp. 124–125; Y. Qurʿush, op. cit., pp. 152–154. 78 A. Abel, “Le chapitre sur l’imamat dans le tamhid d’al-Bāqillānī”, in Le shi’isme imamite: Colloque de Strasbourg 6–9 mai 1968: Travaux du Centre d’Etudes Supérieures Spécialisé d’histoire des Religions de Strasbourg, Presses Universitaires de France, Paris 1970 ; Y. Ibish, The political doctrine of al%ćTLOODQĪ, American University of Beirut, Beirut 1966, p. 24. 79 Abū Manṣūr ʿAbd al-Qāhir Ṭāhir al-Baghdādī, 8ʜŠO DO-'ĪQ, Maṭbaʿat al-Dawla, Istanbul 1928, p. 270; A.K.S. Lambton, op. cit., p. 77. See also: H. Gibb, “Constitutional prganization” in M. Khadduri – H. Liebesny (edited by), op. cit., pp. 7–13. 77

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Conflicting with these doctrines was the ḥanbalī scholar Abū Yaʿlā ibn al-Farrāʾ, according to whom the appointment of the Caliph only serves to avoid the outbreak of civil war. The necessity comes from revelation and not by reason, the latter not indicating what is mandatory, permitted or prohibited and, thus, cannot be taken as a fundamental criterion of the need for an authority. The Caliphate is mandatory upon the believers, since it is a IDUʘNLIć\D. As for al-Māwardī, the contracting parties are divided into two categories: the ahl al-ijWLKćG, i.e. those who have the task to choose the Caliph, and who possess the required qualities to be appointed, the ahl al-,PćPD. Those who operate the appointment must possess three qualities: integrity, knowledge to recognize the best candidate and must belong to the ahl al-UDʯ\. 80 Another jurist dealing with the Caliphate was al-Juwaynī, known as ,PćP DO-ʙDUDPD\Q. He was author of two main works, *KL\ćWKDO-XPćPIĪLOWL\ćWK DO-ʲXOP and .LWćEDO-,UVKćG. The first work defines the Caliphate as a “public authority connected with the private and public affairs of the religion and the world”. 81 Its functions range from preserving the territorial integrity to promoting the GDʰZD and respecting the rights of Muslims. 82 The election of the Caliph is one of the main duties of the community and is provided for by the shariʿa. However, anticipating Ibn Taymiyya’s doctrine, according to al-Juwaynī the necessity for the Caliphate arises both from revelation and from the reason. Moreover, it is allowed to appoint two Caliphs, but only in separate territories, as already advocated by al-Baghdādī. This doctrine is Abū Yaʿlā ibn al-Farrāʿ, al-$ʚNćP DO-6XOʞćQL\\D, Dār al-Kutub alʿIlmiyya, Beirut 2000, p. 19. See also: A.K.S. Lambton, op. cit., p. 103; ʿA. al-Dumayji, op. cit., pp. 60–61. 81 Abū Maʿalī al-Juwaynī, *KL\ćWKDO-XPćPILLOWL\ćWKDO-ʲXOP, edited by Mustafa Hilmi, Dā al-Daʿwa, Alexandria 1979; ʿA. al-Dib, Fiqh al-,PćPDO-XZD\QĪ, Dār al-Wafaʾ li’l-Ṭibāʿa wa’l-Nashr wa’l-Tawzīʿ, al-Manṣūra 2001; J.D. Luciani, El-Irchad par Imam el-Haramein, Imprimerie Nationale, Paris 1938. See also: A.K.S. Lambton, op. cit., pp. 104–107. 82 al-Juwaynī, op. cit., pp. 55 and 80. The Arabic text state sas follow: al-LPćPDUL\ćVDWDPPD]DʰćPDʰćPPDWDWDʰDOODTXbi’l-NKDʜʜDZDpO-ʰćPPDIĪPuKDPPćWDO-GĪQZDpO-GXQL\ć. 80

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taken by analogy with the marriage where two ZćOĪ cannot marry the same woman to two different men. 83 $EŠʙćPLGDO-*KD]ćOĪ Abū Ḥāmid al-Ghazālī exposed his doctrine in several treaties, such as al-0XVWDʲKLUĪ. 84 This work is structured as handbook for governors and aims also at legitimizing the Caliph al-Mustaẓhir bi-Allāh (1078–1118). For al-Ghazālī, caliphate is either set up on the basis of the shariʿa and of reason. While several previous jurists-alMāwardī in particular-placed great emphasis on the legal basis of the Caliphate, despite the rational ones, for al-Ghazālī both are strictly inseparable. To give credit to the weak Caliphal prerogatives, he stressed that the powers are delegated to the Imam by God. Therefore, legal acts and procedure are no more valid unless sanctioned by the Caliph. 85 He is the successor of the Prophet and a source of legitimacy. For this reason, in his absence, even enforcing the law would not be allowed. Al-Ghazālī’s most important political work of is ,TWLʜćGDO-IʰWLTćG, which refutes the arguments of those who consider extinguishing the caliphate. 86 Al-Ghazālī, on the contrary, wishes to renew it and says that the established authority is preferable to anarchy. Regarding the necessity for caliphate, reason alone is not sufficient to support such a dogma, but it demonstrates the existence of a consensus among the Companions of the Prophet on the importance of the Caliphate. 87

al-Juwaynī, op. cit., p. 143; J.D. Luciani, op. cit., p. 357. Abū Ḥāmid al-Ghazālī, )DʘćʯLʚDO-EćʞLQL\\D, al-Dār al-Qawmiyya li’lṬibāʿa wa’l-Nashr, Cairo 1964. 85 H. Laoust, La politique de Ghazali, Librairie Orientaliste Paul Geuthner, Paris 1970, p. 230 ; A.K.S. Lambton, op. cit., p. 110 ; Abū Ḥāmid al-Ghazālī, op. cit., 1964, pp. 170–171. 86 Abū Ḥāmid al-Ghazālī, ,TWLʜćG DO-,ʰWLTćG, Dār Qutayba li’l-Ṭibāʿa wa’l-Nashr wa’l-Tawzīʿ, Damascus 2003. 87 H. Laoust, op. cit., pp. 236–237; Abū Ḥāmid al-Ghazālī, 2003, p. 169. On the dilemma between anarchy and tyranny, in reference to the work of al-Ghazālī and more generally in Islamic thought, see also: B. Lewis, Islam and the west, Oxford University Press, Oxford 1993, p. 46. 83 84

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The renewal of the Caliphate passes through its comparison with the Sultanate. In the traditional sXQQĪ political theory, the source of authority resides in God, the shariʿa is manifested through the power and the Caliph is its executor. 88 The existence of any other source of authority is not permitted. After the fall of the Abbasid Caliphate and the fragmentation of the Muslim empire, however, the Caliph lost his real powers. By virtue of this, emerges alGhazālī’s theory which is based on the assumption of mutual cooperation between the Caliph and the Sultan. If the necessity for the Caliphate is based on the Qurʾān, also a coercitive power to enforce the shariʿa is needed. This power is granted to the Sultan who is also institutionalized beside the Caliph. Political power resides in the hands of the latter, however, this does not exclude the former. Officially, the Sultan holds a delegated power (VXOʞD WDIZĪʘL\\D), not a full authority. 89 His government takes place after the oath pronounced in front of the Caliph, as recognition of his role. 90 With this compromise, al-Ghazālī saves the idea of the shariʿa as the organizing principle for the Muslim society: the Caliph is the symbol of the supremacy of the Islamic law, while the Sultan represents coercitive power. 91 The relationship between the Caliph In the last works of this jurist the necessity of Caliphate disappears completely, giving way to the plurality of powers. This doctrine, in contrast to the one exposed in previous works, is a characteristic feature of the thinking of al-Ghazālī suggested by historical and biographical context. See: I.M. Lapidus, op. cit., p. 16. 89 The scholars have always possessed a discreet power to exercise influence of the Caliph through the knowledge of which they were depositaries. In the works of al-Bāqillanī and al-Baghdādī it seems that another different source of authority can be considered the community (umma). See: A.K.S. Lambton, op. cit., p. 111. 90 A.K.S. Lambton, op. cit., pp. 114–116. However, in the absence of the Caliph no contract could be finalized. The Sultan, recognizing the preeminence of the Caliph, is legitimized and vice versa the Caliph recovered, at least in part, a semblance of power by the assistance of the Sultan. 91 A.K.S. Lambton, op. cit., pp. 113–114; E. Tyan, op. cit., p. 85; H. Enayat, Modern IslamLF SROLWLFDO WKRXJKW 7KH UHVSRQVH RI WKH VKLʰL DQG WKH VXQQĪ muslims to the twentieth century, MacMillan, London 1991, p. 11. 88

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and Sultan, based on these premises, was summed up in a chronicle reported by Ibn Miskawayh, historian of the eleventh century of the Christian era: On the request of the Buyyid Sultan ʿIzz alDawla (943–978 CE) to the Abbasid Caliph al-Muṭīʿ (914–975 CE) to place himself at the head of an army to conduct a military campaign, the Caliph replied that the war would reside among his obligations if the concrete power remained in his hands. 92 7DTĪDO-'ĪQ$EŠDO-ʰ$EEćV$ʚPDG,EQ7D\PL\\D In contrast to the former is the position of Ibn Taymiyya, who analysed the dogma of the necessity of the Caliphate in two treaties: 0LQKćj al-sunna al-nabawiyya and .LWćEDO-VL\ćVDDO-sharʰL\\DIĪLʜOćʚDO-UćʰĪ wa’l-raʰiyya. In the second treaty, Ibn Taymiyya still argues for the necessity of the Caliph, be he fair or unfair, because he is a source of authority and provides for the security of the territory under his control. Especially the execution of the sentences, according to Ibn Taymiyya, requires the election of the Caliph because he causes greater propensity to obedience to God and, at the same time, a decrease of transgressions to his commands. 93 Moreover, the beAbū Aḥmad ibn Muḥammad Miskawayh, .LWćE 7DMćULE DO-8PćP, edited by H.F. Amedroz, Dār al-Kitāb al-Islamī, Cairo 1979, Vol. 2, p. 307. 93 Taqī al-Dīn Abū al-ʿAbbās Aḥmad Ibn Taymiyya, 0LQKćMDO-sunna al-nabawiyya, Jāmiʿat al-Imām Muḥammad Ibn Suʿūd al-Islāmiyya, Riyāḍ 1986. This work was a refutation of the treaty 0LQKćMDO-NDUćPDIĪPDʰULIDW al-,PćPD by the shīʿī al-Ḥillī. A.K.S. Lambton, op. cit., p. 144; H.K. Sherwani, op. cit., pp. 171–172; N.N. Ayubi, Political Islam. Religion and politics in the arab world, Routledge, London 1991, pp. 20 and 126–127; B.L. Garcia, “Legitimidad y participacion en el mundo arabo-Islamico”, in Revista de Estudios Politicos, no. 52, Centro de Estudios Políticos y Constitucionales, Madrid 1986, pp. 161–163; J. Schacht, op. cit., 1964, p. 72; E. Sivan, Radical Islam. Medieval theology and modern politics, Yale University Press, London 1985, pp. 94–107. Taqī al-Dīn Abū al-ʿAbbās Aḥmad Ibn Taymiyya, al6L\ćVDDO-VKDUʰL\\DIĪLʜOćʚDO-UćʰĪZDpO-UDʰL\\D, Dār al-Thaqāfa al-Jadīda, Beirut 1983; G. Piccinelli (edited by), Il Buon Governo dell’Islam, Fondazione Ferni Noja Noseda, Roma 2001; H. Laoust, Le traité de droit public d’Ibn Taimiya, Institut Français de Damas, Beirut 1948. 92

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lievers cannot refuse to pay the taxes to the Sultan, although he is wicked. 94 This corroborates the idea that the constituted authority must be respected, regardless to its morality and conducts. 95 In the work 0LQKćj al-sunna al-nabawiyya, the Ibn Taymiyya points out that in the shīʿī political thought the Caliphate is considered among the pillars of faith (DUNćQDO-LPćQ) while, from the VXQQĪ point of view only faith in God and the Prophet are fundamental principles. For Ibn Taymiyya, there is no clear evidence in the Qurʾān or in the sunna to consider the Caliphate a dogma. The scholar, rather than denying the necessity of such an institution, has scaled its dogmatic nature, focusing his interest on the application of the shariʿa even in absence of an elected Caliph. Badr al-'ĪQ,EQJamćʰa The judge Badr al-Dīn Ibn Jamāʿa completed the process of synthesis between the Caliphate and the Sultanate, undertaken by alGhazālī and Ibn Taymiyya. He was the author of the treaty 7DʚUĪU al-DʚNćPIĪWDGEĪUDKODO-LVOćP, a work that follows closely that of alMāwardī. 96 Ibn Jamāʿa was not moved by the need to legitimize the Mamlūk Sultan in Egypt. 97 On the contrary, he agreed to transfer all powers to that dynasty, recognizing their Caliphate and considering lawful the conquest of power by brute force. The jurist employs interchangeably the terms of Imam and Sultan and considers the prerogatives of the Caliph as entirely attributable to the Sultan. The latter is one who possesses the power (qudra) together with a kingdom (mamlaka). 98 The Sultanate is justified by the Qurʾānic

Ibn Taymiyya, op. cit., 1983, p. 38; G. Piccinelli, op. cit., p. 43; A.K.S. Lambton, op. cit., p. 145; H.K. Sherwani, op. cit., p. 173. 95 Ibn Taymiyya, op. cit., 1983, p. 28; G. Piccinelli, op. cit., p. 29. 96 Badr al-Dīn Ibn Jamāʿa, 7DʚUĪUDO-DʚNćPIĪWDGEĪUDKODO-LVOćP, Dār alKutub al-ʿIlmiyya, Beirut 2003. 97 A.K.S. Lambton, op. cit., p. 139. 98 Badr al-Dīn Ibn Jamāʿa, op. cit., pp. 18–19. 94

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verse “la taQIXGKŠQDLOOćEL-6XOʞćQ” that is the evidence of its necessity. 99 The Sultan, indeed, proves the existence of God and of its uniqueness: just as it is forbidden to admit the existence of two gods, equally it is not permissible for two sources of authority to exist in the same country. In other words, the Caliph and the Sultan are the same person. As for the necessity of the Caliphate, on one hand it is demonstrated with the verse of the Qurʾān in which David is called NKDOĪID, on the other hand by practical reasons: The Caliphate is required to defend religion, to collect taxes and proceed to their best employment. But the main task of a state is maintaining security both internally and externally, and this is only possible by establishing a firm authority in the hands of the Sultan. 100 In support of this thesis, the jurist recalls the tradition in which the Prophet says that tyranny is preferable to anarchy and the governor is defined God’s shadow on earth. Finally, Ibn Jamāʿa quotes Qurʾān 2:251 which gives the Sultan the task to defend the oppressed against the tyranny and unbilievers. The jurist applies to the Sultan the same traditions referred to the Caliph by previous scholars, thus supporting his legitimacy. With this doctrine, the process of assimilation of the two charges, started by al-Ghazālī, is considered concluded. 6DʰGDO-'ĪQDO-7DIWć]ćQĪ As with previous jurists, according to al-Taftāzānī, the appointment of the Caliph is required to apply the sentences, impose ʚXGŠG punishments, equip the army, collect legal alms, lead the friday prayer, supervise the celebration of the festivities, settle disputes, celebrate the marriages when a curator is missing, divide the spoils. 101 Start-

See Qurʾān 55:33 “O company of jinn and mankind, if you are able to pass beyond the regions of the heavens and the earth, then pass. You will not pass except by authority”. 100 Badr al-Dīn Ibn Jamāʿa, op. cit., pp. 18–19; E.I.J. Rosenthal, op. cit., p. 43. 101 E.E. Elder, $ &RPPHQWDU\ RQ WKH FUHHG RI Islam 6DʰDG DO-'ĪQ DO7DIWć]ćQĪ RQ WKH FUHHG RI 1DMP DO-Din al-Nasafi, Columbia University Press, 99

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ing from the duties of the Caliph, the author introduces the problem of decentralization of officials in the empire’s provinces. This solution could lead to disputes between the officials for either religious and civil matters. The Caliphate, by contrast, is the only authority entitled to administer religious and secular affairs. The integration of the worldly and spiritual levels, however, has been reached under the regime of the so-called perfect Caliphate (alkKLOćIDal-NćPLOD), limited, in the opinion of al-Taftāzānī, to the first thirty years of the history of Islam. After that, the Caliphate was separated from the Imamate: After [the perfect Caliphate], the era of the Caliphate came to an end without that even the Imamate ended, because that of Imam is a more general qualification than the Caliph. 102

ʰ$EGDO-5DʚPćQLEQ.KDOGŠQDQG$EŠDO-ʰ$EEćVDO-4DOTDVKDQGĪ Ibn Khaldūn returns to more orthodox positions, stating that the necessity for the Caliphate is confirmed by the Qurʾān as well as by the consensus of the early Companions of the Prophet. 103 The Caliphate is necessary on a rational basis and those who deny the constituted authority would fall into error, since the VKDUĪ‘a does not forbid tyranny per se but merely prohibits the evils that it can generate. 104 Finally, it is also proper to mention the position of Abū alʿAbbās al-Qalqashandī, a jurist of the fifteenth century. In his treaty Ney York 1950, p. 145; Saʿd al-Dīn al-Taftāzānī, 6KDUʚ DO-ʰDTćʯLG DOnasafiyya, Maktaba al-Kulliyyāt al-Azhariyya, Cairo 1988, p. 97. 102 Saʿd al-Dīn al-Taftāzānī, op. cit., p. 97; S. Nawar, op. cit., p. 96. 103 ʿAbd al-Raḥmān ibn Khaldūn, 0XTDGGLPD ,EQ .KDOGŠQ, Dār alFikr, Beirut 2001, p. 239; F. Rosenthal, The Muqaddima: an introduction to history, K. Paul, London 1958, p. 386; V. Monteil, Discours sul l’histoire universelle, Commission internationale pour la traduction des chefsd’œuvre, Beirut 1967. 104 In support of this thesis Ibn Khaldūn cites the tradition about Solomon and David who were both King but also Prophets and were, in the eyes of God, among the best of men. E. Tyan, op. cit., pp. 277–278 and 284.

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0DʯćWKLUDO-,QćIDILPDʰćOLPDO-NKLOćID, he defines the Caliphate as the supreme authority but with an unusual emphasis on the “custom” as source of legitimacy. This doctrine is opposed to al-Māwardī’s view because it is based on a minor source of Islamic law, the custom (ʰXUI). By reference to the predecedent scholars, also for alQalqashandī the Caliphate is necessary. However, his reference to the custom is in analogy with the hereditary monarchy, as the Caliphate was acknowledged by the new generation of jurists. 105 5.1. The requirements for the Caliph’s election The appointment of the Caliph is considered by law as an obligation borne by the community. Believers, in fact, are responsible for his election, through their representatives. In the first works about the Caliphate, the essential characteristics that the head of the community must possess have been defined. The conditions of eligibility have been canonized by al-Māwardī and, later, by other scholars. These are not classified as principles WKćELWD, listed by the sources of Islamic law, but as PXVWDQELʞD and ijWLKćGL\\D, or processed by scholars. 106 The conditions that the candidate must possess to be elected as Caliph have been grouped in two categories: VKXUŠʞPDʚDOOLWWLIćT, conditions for which an agreement was reached, and VKXUŠʞPXNKWaOLI ILKć that is controversial conditions. 107 The first conditions are: LVOćP, ʰDTO, GKXNŠUD, ʰDGćOD, ʰLOP. The adherence to Islam is a prerequisite for the exercise of each form of authority, as evidenced by the phrase minkum (among you) in Qurʾān 4:59. Therefore, for the prevailing doctrine, it is forbidden to put non-Muslims at the head of the state, while members of the ahl al-GKĪPPD can be recognized

Abū al-ʿAbbās al-Qalqashandī, 0DʯćWKLU DO-,QćID IL PDʰćOLP DONKLOćID, al-Mazraʿa Bināya al-Īmān, Beirut 2001, pp. 8–29. 106 D. Santillana, Istituzioni di diritto musulmano malichita, con riguardo anche al sistema sciafiita, Istituto per l’Oriente, Roma 1925, vol. 2, p. 14. 107 ʿAbd al-Razzāq al-Sanhūrī distinguishes between obvious, certain and disputable conditions. ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 56–76. 105

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some minor position not included in the ZLOć\ćWTL\ćGL\\D, i.e. LPćPD and TDʘćʯ. 108 Discernment (ʰDTO is fundamental because those without are excluded from any positions in the public administration. The legal basis is contained in Qurʾān. 4:5 which states “And do not give the weak-minded your property”. Generally, the doctrine combines rationality and age in the concept of WDNOĪI, i.e. legal capacity. The individual insane is assimilated to the minor, since both are not PXNDOODIŠQD. The term dhXNŠUD indicates, however, that masculinity and is classified among the so-called clear conditions. In other words, women for the VXQQĪ jurisprudence are not entitled to hold the offices of Caliph since in Qurʾān. 4:34 is sanctioned their subjection to men on the political level. To justify their position, scholars make recourse to TL\ćV the exclusion of women from the highest political office is by analogy with the pre-eminence of man within the family, which, to a lesser extent, reproduces the society. 109 The exclusion of women is by analogy with the ban on female believers to lead the prayer, too. 110 However, a small group of VXQQĪ scholars is inclined to accept the feminine Caliphate, albeit only in cases of necessity. 111 Justice (ʰDGćOD) is one of the essential conditions for religious leaders of the Islamic state and includes morals and virtues. Unbelief (kufr) excludes one from this position, despite the fact that according to other scholars, justice is not necessary. This requirement fails in two circumstances: if a wicked person has conquered the GćU K. Rabbaʿ, op. cit., pp. 79–80. Qurʾān 5:51 states: “O you who have believed, do not take the Jews and the Christians as allies.”. 109 Y. Qurʿush, op. cit., p. 108. Qurʾān 4:34 states “Men are in charge of women by [right of] what God has given one over the other and what they spend [for maintenance] from their wealth”. 110 J. al-Murakkabi, op. Cit., p. 318; E. Tyan, op. Cit., pp. 359–361; Ibn Aḥmad, al-)LʜDOIĪpO-milal wa’l-DKZćʯZDpO-PDʚDOO, Dar al-Jil, Beirut 1996, Vol. 4, p. 179. 111 S. Dabbus, op. cit., p. 275. About the Imāmate of the prayer, see: ʿAlāʾ al-Dīn Abū Bakr ibn Maʿsūd al-Kāsānī, %DGćʯLʰ DO-ʜDQćʯLʰ IĪ WDUWĪE DOVKDUćʯLʰ, Dār al-Kutub al-ʿIlmiyya, Beirut 2002, Vol. 1, p. 666. 108

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al-,VOćP, or even if injustice spread among the believers. If the Caliph loses this quality, it is permissible to remove him from his offices, but this view is highly controversial. Knowledge (ʰLOP) is another condition in which there is agreement and is required for each public office. The disagreement among the jurists is about the degree of knowledge required to the Caliph. To the prevailing view, he must be a mujtahid, capable of ijWLKćG PXʞODT in the fields of XʜŠO and IXUŠʰ al-fiqh. 112 Nevertheless, the Caliph is invited to consult with ʰXODPćʯ in cases of doubt over the law. The rank of mujtahid is achieved through the study of five sciences: ʰLOPDO-.LWćE, i.e. science of the Qurʾān; ʰLOPDO-sunna, or the knowledge of the custom of the Prophet; knowledge of the DTćZĪO, sayings of the Prophet’s Companions and followers and the main collections of IDWćZD; ilm al-lugha, i.e. grammar and eloquence; ʰLOP al-TL\ćV, i.e. analogical reasoning. Some shāfiʿī jurists, including alGhazālī and Ibn Ḥazm, have classified the condition as PXVWDʚDEE, not as Zćjib, considering them to be recommended and not mandatory. 113 The second group, VKXUŠʞPXNKWDOLIILKć or controversial conditions, includes: bulŠJK, ʚXUUL\\D, NLIć\D jismiyya and qurashiyya. The first indicates adulthood, because the minor is excluded from any public office. Shīʿī jurisprudence takes the view that it is reasonable to entrust the Caliphate to minors, while some ḥanafī jurists permitt it but only in the presence of a guardian until they reach puberty. 114 Legal basis if Qurʾān 2: 247 “Indeed, God has sent to you Saul as a king. They said, “How can he have kingship over us while we are moreworthy of kingship than him and he has not been given any measure of wealth?” He said, “Indeed, God has chosen him over you and has increased him abundantly in knowledge and stature”. ʿAbd al-Razzāq alSanhūrī distinguishes seven degrees of LMWLKćG the first of which corresponds to that of the founders of schools of the Islamic law. The Caliph must belong to this rank. ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 61–62. 113 ʿA. al-Dumayji, op. cit., p. 250. 114 J. al-Murakkabi, op. cit., p. 328. The legal basis is the same Qurʾān 4:5, specified by a tradition in which the Prophet calls for restraint against insane until he wised up and against minor until he reaches the age 112

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Freedom (ʚXUUL\\D) is a prerequisite since the slave does not have the capacity to administer anything in the absence of his master. Therefore, it is not possible for him to exercise public authority. Ibāḍī jurists have supported the possibility for the slave to hold the office according to the famous Abyssinian slave ʚDGĪWK. The refutation of this argument on the side of the VXQQĪV has focused mainly on the following points: obedience to the slave becomes lawful in the case of usurpation of the title through the use of force; the slave mentioned by the tradition is not an alternative to the quraysh Imam, but only his adjuvant; the status of slavery may continue until the time of his appointment, but then must stop, on pain of nullity of the contract. 115 An examination of this requirement is made by al-Māwardī, who analyzes the case where the Caliph loses his freedom. Restrictions on the freedom of action of the Caliph are mainly of two types: the impediment (ʚDjr) and coercion (qahr). The impediment occurs when one able to dominate subtracts the Caliph the exercise of power. Coercion, however, occurs when the Caliph falls prisoner of a victorious enemy and cannot recover his freedom. This fact invalidates the contract stipulated with the believers, because the Caliph becomes unable to take care of the affairs of the Muslims. 116 It is not relevant if the enemy is polytheist (mushrik) or a Muslim rebel (bćJKĪ): in both cases, the community has the duty to come to the aid of the Caliph, if there is a hope of release. If, on the contrary, there is no possibility, it is necessary to distinguish the case where the Caliph lies in the hands of Muslims or polytheists. 117 In the second case, the prisoner loses the title and the community has the right to appoint another Caliph. In the case of captivity by Muslim rebels, the Caliph remains entitled to his office if there is a hope that he will recover freedom. Otherwise, there are two possiof majority. S. Dabbus, op. cit., pp. 128–129; K. Rabbaʿ, op. cit., p. 82; Y. Qurʿush, op. cit., p. 107. 115 J. al-Murakkabi, op. cit., p. 331; Y. Qurʿush, op. cit., p. 111. 116 H. Mikhail, Politics and UHYHODWLRQ $O-0ćZDUGĪ DQG DIWHU, Edinburgh University Press, Edinburgh 1995, pp. 27 and 41. 117 al-Māwardī, op. cit., p. 23; E. Fagnan, op. cit., p. 39 ; ʿAbd alRazzāq al-Sanhūrī, op. cit., pp. 201–203.

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bilities depending on whether the rebels have elected a new Caliph. If they have not chosen him, being in a state of anarchy, the prisoner retains his title, since the rebels are still bound by an oath of allegiance. If the rebels have already chosen their Caliph, the Caliph prisoner is deprived of his office, when there is no longer any hope of release. This is because he has no real power and those who are called to elect a new Caliph must confer the title on one they deem most appropriate. Physical capacity (NLIć\D) indicates the integrity of the limbs, although this category was problematized mainly by al-Māwardī. According to him, deprivation of physical capacity can be of four types: impairments that do not prevent one from becoming or remaining Caliph, such those which do not prejudge the judgment, capacity of action and the outward appearance of the face; preexisting impairments that prevent him becoming Caliph, because they constitute an impediment to the action (such as the amputation of hands or feet); the loss of a hand or a foot, causing partial infirmity prevents the Caliph remaining in office; infirmities on which there is no agreement like deformities that do not affect the ability to move. Beside physical capacity lies, then, the quality of courage (shajćʰD) and value (najda) necessary to conduct military operations or to implement the law. Some jurists, however, deny these qualities, since the Caliph may delegate these functions. Membership to the quraysh tribe is the last requirement for eligibility, according to VXQQĪ and shīʿī imāmī jurisprudence. Already within the VXQQĪ law there are many differences and only the muʿtazilī and the kharījī schools have rejected the membership to the quraysh. In fact, the muʿtazilī Ḍirār ibn ʿAmr al-Ghaṭafānī alKūfī (730–800 CE) maintained the possibility of electing every Muslim. 118 Even al-Bāqillānī reports the doctrine of Ḍirār, but to confute it. He not only shows how necessary the membership to the quraysh is, but he also stresses that the Caliph must be the descent al-Māwardī, op. cit., p. 6; ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 67–68; S. Dabbus, op. cit., p. 257; S. Nawar, op. cit., p. 29; Abdur Rahim, op. cit., p. 385. 118

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of the banū Ḥāshim. Thus, al-Bāqillānī opposed both the muʿtazilī and the shīʿī doctrines which considered the only ʿAlīd branch as legitimate descent. The remaining qualities to become Caliph as indicated by al-Bāqillānī are: knowledge to be able to distinguish what is lawful, to appoint judges and the exercise of the judiciary; bravery to lead the army and protect the community; wisdom in business administration to protect the interest of the believers. The treaty of al-Bāqillānī also contains a detailed analysis of the cases when the contract of Caliphate is invalidated. These are: loss of integrity and heresy; reprehensible conduct; acts of injustice or impiety; physical and mental illness as madness, deafness, dumbness and old age; captivity. The loss of ʰDGćOD seems not to invalidate the contract. This is explained by the historical period which alBāqillānī lived in, when the dynasty of Buyyid princes took power. Given their immoral conduct, the jurist preferred to defer the requirement of probity to avoid calling into question their authority. For al-Baghdādī, belonging to the quraysh is the first and most important condition. Quoting the opinions of al-Shāfiʿī and Abū Ḥanīfa, al-Baghdādī states that the Caliph must belong to quraysh, based on the traditions and the consensus expressed by scholars. 119 Other qualities are: the knowledge to a level where he can be recognized as mujtahid, probity and piety to such a level that he can be chosen to bear witness. Finally, the Caliph needs to demonstrate wisdom in administration. 120 In exercising his prerogatives, the Caliph must be compliant with shariʿa. If he makes a mistake because of his fallibility, the community has got two options: try to put him back on the right path; withdraw confidence and recognize a just ruler. The first option is derived by an analogy: the premise is that the Caliph and his officers are placed on an equal footing; since, if

al-Baghdādī, op. cit., pp. 275–276. The tradition is the usual “Imāms belong to quraysh” while the consensus refers to the negotiations that took place during the Yawm al-6DTĪID among DQʜćU and PXKćMLUŠQD after the Prophet’s death. The DQʜćU would have proposed to appoint a leader for each group, but Abū Bakr said that the Caliphs had to belong to quraysh. 120 al-Baghdādī, op. cit., p. 277. 119

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they make a mistake, the Caliph has the power to remove them, the same way, if the Caliph wrong, the community can remove him. Also, according to Ibn al-Farrāʾ, there are four requirements to be ahl al-,PćPD and the first one belongs to the tribe of quraysh. 121 The same qualities required to be appointed judge are then necessary: freedom, puberty, rationality, honesty and knowledge. Thirdly, the ability to conduct the war and politics is required, and the ability to enforce the punishments prescribed in the Qurʾān. Finally, the Caliph must be the best among his contemporaries in terms of knowledge and religion. Ibn al-Farrā’ also developed a doctrine to choose between several candidates of equal value. In this case must be appointed the eldest if his choice does not create problems. If among the competitors one is wiser and the other more courageous, it should be considered whether the current situation requires the government of a brave Caliph, for example due to the presence of rebel groups, or whether the believers need the wisest one because they face a state of ignorance. According to al-Juwaynī, the Caliph must be able to exercise the ijWLKćG and share the same qualities of the PXIWĪ. 122 With respect to his moral and physical qualities, the Caliph must be able to organize the troops to defend the frontiers, must possess good judgment in the administration, be pious and righteous.With respect to belonging to the quraysh, the jurist admits that there is no agreement on this issue. Not all the quraysh were also part of the bayt alQćEĪ (the lineage of Muḥammad). The membership of that clan, therefore, should not be taken as a strict requirement. 123 Moreover al-Juwayni stresses that the Caliph must know the shariʿa is able to serve as a reference for other scholars. As for his legal requirements, the Caliph must enjoy rationality, courage and magnanimity. If he is legally charged, his disposal is not allowed, Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 20. al-Juwaynī, op. cit., p. 83. In the Irshad the jurist explains that the Imām must belong to the ahl al-LMWLKćG not to resort to consultation on controversial questions. 123 While it is not possible that a woman becomes Imām, it is not entirely impossible that she is appointed as a judge. See: al-Juwaynī, op. cit., pp. 93–94; ʿA. al-Dumayji, op. cit., p. 275. 121 122

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unless there is a change of his moral condition. If the Caliph commits blasphemy, losing the quality necessary to remain in office, he should be removed. 124 The removal and dismissal are possible, provided the community finds the right way to perform it peacefully. It is also acknowledged the voluntary abandonment of power. 125 In the Irshad, al-Juwaynī goes further and exposes the principle that, if the ruler repeatedly commits evil deeds and the believers have tried, without success, the way of his redemption, the most learned of the community must agree on the best way to depose him, also with violence and war if necessary. In his *KL\ćWK, alJuwaynī suggests three possibilities to deal with the unjust Caliph: he is deposed by the elders who had appointed him and is replaced with another candidate possessing the required qualities. 126 The tyrant is challenged and considered as a rebel, along with his faction. But if the removal is estimated too expensive in terms of human lives, then the tyrant remains in office. In the event that the elders failed to find a candidate in possession of all the necessary qualities, it is possible for the community to remain without a leader to guide towards the truth, applying the shariʿa independently. Finally, it is lawful for a man to take up in arms and, on this occasion, the elders are required to provide their help. If such action is successful, the leader is awarded the title of Caliph and in fact assumes his power through an act of usurpation. 127 Even al-Ghazālī discusses the qualities the Caliph must possess. In the 0XVWDʲKLUĪ, he enumerates six natural and four moral

al-Juwaynī, op. cit., p. 91–93; ʿA. al-Dib, op. cit., pp. 472–473. Ibid., p. 95. The expression in the original Arabic text indicates how essential are qualities like NLIć\D and ,VWLTOćO. The independence not only in the exercise of LMWLKćG is also necessary for the administration of the religious and worldly affairs. This type of quality is required aside the ability to give personal opinions. 126 Ibid., p. 314; A.K.S. Lambton, op. cit., p. 105. The statement is in contained the chapter where the jurist discusses the principle of enjoining good and forbidding evil, and not in chapter related to the Caliphate. 127 P. Crone, op. cit., pp. 235–236. 124 125

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qualities. 128 The first include puberty, reason, freedom, masculinity, physical integrity and being offspring of the quraysh, while the latter are technical expertise, knowledge and piety. 129 About knowledge, the Caliph is not required to be mujtahid: He simply must know the shariʿa and ask the scholars when needed. Since alGhazālī does not admit the quality of being mujtahid, he gives greater prominence to the work of the scholars. They are entitled to resolve the doctrinal problems, recognize the role of the Sultan through the acceptance of the ED\ʰD and emit the IDWćZć, interpreting the shariʿa. In his work ,ʚ\ćʯ8OŠPDO-'ĪQ, al-Ghazālī states that obedience to the unjust ruler is preferable to anarchy. Therefore, the believers must accept the Sultan and anyone who is delegated by the Caliph. For their part, the Sultans must mention the Caliph in the Friday NKXʞED and engrave his name on the coins. With regard to the requirements of the Caliph’s election, Ibn Taymiyya rejects the offspring from the quraysh as well as the physical characteristics needed to the candidate: in his doctrine, the severity of these conditions is far from the mutuable spirit of the Islamic law. The ZDOĪ DO-amr, as Ibn Taymiyya generically refers to the Caliph, therefore, is only required to possess the same qualities to admit the witnesses at the trial: strength and loyalty. Ibn Taymiyya also stands between the conduct of public affairs at the hands of the Caliph and his private life, believing that there is no relation between his office and his moral qualities. 130 For this reason, the jurist condemns the idea of rising up in arms against the unjust Caliph. Rather being forbidden to fight against Muslims, the rebels must be brought back to obedience. 131

H. Laoust, op. cit., p. 247; Abū Ḥāmid al-Ghazālī, op. cit., 1964, pp. 180–181. Si veda anche Abū Ḥāmid al-Ghazālī, 2003, p. 170. 129 Y. Qurʿush, op. cit., p. 117; E.I.J. Rosenthal, op. cit., p. 41. 130 Ibn Taymiyya, op. cit., p. 15; G. Piccinelli, op. cit., p. 13. See also: E.I.J. Rosenthal, op. cit., p. 52; H.K. Sherwani, op. cit., pp. 177–179. 131 Ibn Taymiyya, op. cit., p. 75; G. Piccinelli, op. cit., p. 87. The word used by the author to describe the rebels is PXʚDUULEŠQD. This term, which refers to the word war (ʚDUE), is used interchangeably than EćJKĪ. 128

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Ibn Jamāʿa lists the following conditions for the eligibility: masculinity, freedom, maturity, wisdom, Islam, justice, courage, belonging to quraysh, scholarship, administrative capacity. 132 Those who oppose the constituted authority of the legitimate Caliph, are rebels based on Qurʾān 49:9–10. 133 If a group leaves the community and it is not possible to bring them back to obedience, killing them becomes lawful. The Caliph must try to bring them back to obedience, providing money or by recourse to war. The Muqaddima of Ibn Khaldūn lists the following eligibility conditions: knowledge to pursue the ijWLKćG, honesty, competence and physical capacity, while belonging to the quraysh is contested. Knowledge is crucial to apply the law, while probity is required since that of the Caliph is a religious office. Competence is required for solving juridical issues and the application of Qurʾānic punishments. 134 Finally, physical capacity implies that the Caliph has no imperfections, such as being castrated; diseases, such as blindness or deafness, and is not mentally ill. With respect to membership in the quraysh, Ibn Khaldūn recognizes the consensus reached by previous jurists. 135 The power of this tribe has declined because of excessive wealth and vice and its members are no longer able to

The second word occurs most frequently to describe those who have voluntarily refused the constituted authority. 132 Badr al-Dīn Ibn Jamāʿa, op. cit., p. 16; A.K.S. Lambton, op. cit., p. 141. 133 These verses state: “And if two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of God. And if it returns, then make settlement between them in justice and act justly. Indeed, God loves those who act justly.” Badr al-Dīn Ibn Jamāʿa, op. cit., pp. 101–102. 134 ʿAbd al-Raḥmān ibn Khaldūn, op. cit., p. 241; F. Rosenthal, op. cit., pp. 394–395; A.K.S. Lambton, op. cit., pp. 168–169. 135 ʿAbd al-Raḥmān ibn Khaldūn, op. cit., p. 242; F. Rosenthal, op. cit., p. 396.

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fulfill the Caliph’s functions. This is the real reason, to refute this condition among the requirements. 136 Finally, writes al-Ījī, the conditions for the election of the Caliph change in every age: the majority of jurists agree, however, that he should be mujtahid, an expert in law, endowed with wisdom in the exercise of worldly affairs and that he must possess the strength to resist the enemies. In addition, he must be mukallaf and necessarily male. The requirement of justice is necessary to avoid taking possession of the goods of the people; the descent from quraysh, finally, is a mandatory requirement. 137 5.2. Procedures of election The VXQQĪ jurisprudence emphasized that the Prophet did not appointed any successor before his death and delegated the task of taking decisions on this matter. The shariʿa does not regulate in detail a form of government in spite of its comprehensive nature. If the sources of Islamic law had outlined a political model, the community would have been required to give effect to it in each era. 138 Thus, the VXQQĪ doctrine claims that believers are free to choose their own form of organization but are required to exercise the power for public interests (PDʜODʚDʰćPPD). This demonstrates that even for well-guided Caliphs there was not any specific procedure of election. The first procedure of appointment of the Caliph indicated by the jurists is the election (LNKWL\ćU) by the elders of the community, the ahl al-ʚDOO ZDpO-ʰDTG, followed by the oath of allegiance called ED\ʰD. 139 Although the idea of universal consent is refused by the doctrine, nevertheless the appointment by election remains the best M.C. Hudson, $UDESROLWLFV7KHVHDUFKIRUOHJLWLPDF\, Yale University Press, London 1977, p. 36; ʿAbd al-Raḥmān ibn Khaldūn, op. cit., p. 243. 137 ʿAdūd al-Dīn ʿAbd al-Raḥmān al-Ījī, al-0DZćTLI IĪ ʰLOP DO-NDOćP, ʿĀlam al-Kutub, Beirut 2002, p. 398. 138 ʿA. al-Dumayji, op. cit., pp. 143–154. 139 J.Y. Ibish, op. cit., p. 87; al-Baghadi, op. cit., p. 279; J.D. Luciani, op. cit., p. 360; E. Tyan, op. cit., pp. 273–275; D. Santillana, op. cit., p. 16; S. Dabbus, op. cit., p. 133; Y. Qurʿush, op. cit., pp. 159–160; Abū alʿAbbās al-Qalqashandī, op. cit., p. 40. 136

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method because it is mentioned in the Qurʾān, by the sunna and the consensus. The foundations are the first two verses that impose the obligation to consult (Qurʾān 3:159 and 42:38), for example, on the occasion of the nomination of ʿUmar by Abū Bakr and that of ʿUthmān by a council formed by six men. The elders are not defined only ahl al-ʚDOOZDpO-ʰDTG but also ahl al-LNKWL\ćU and ahl al-VKŠUć. They are requested to choose the PXIćʘLO, that is the one who can hold the office of Caliph, because he possesses all the requested conditions. 140 As al-Māwardī states, the elders must meet the following characters: knowledge to the level of ijWLKćG, the requirements to exercise the ZLOć\DʰćPPD (Islamic faith, rationality, freedom and masculinity), probity, discernment and wisdom. About their number, there is not unanimous consent, but it is believed that voters coincide with those who possess the qualities listed, without limit. According to the shafiʿi doctrine, in analogy with the minimum number of those necessary to make valid the Friday prayers, voters must be forty at least. According to another opinion, they should be at least five individuals, in analogy with the appointment of Abū Bakr. This doctrine, says al-Māwardī, is proper of the lawyers of alBaṣra. Those of Kufa considered sufficient three voters: one of the three is the candidate, while the other two represent the voters and sign the contract, as in the case of marriage. 141 According to another theory, just one person is sufficient, based on a tradition concerning al-ʿAbbās, the uncle of the Prophet. Finally, according to Ibn Haẓm, there is no fixed number of voters. However, they must be the best of the community. These opinions stem from interpretations, yet find no place in the Qurʾān and sunna. Regardless of their number, the voters are considered as trustees of the Caliph, the guarantors of the pact sanctioned by the

The doctrine distinguishes between ahl al-VKŠUć and ahl al-LMPćʰ as follows: members of the first group held a political and social function. Those belonging to the second category play a normative role and are a source of law. ʿA. al-Dumayji, op. cit., p. 162; Y. Qurʿush, op. cit., p. 24. 141 ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 80. S. Nawar, op. cit., p. 49. Abū al-ʿAbbās al-Qalqashandī, op. cit., pp. 42–44. 140

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community and those who assumes the office. 142 In this context alBāqillānī stresses the importance of the public ED\ʰD, because the Caliph becomes contracting party of the agreement with the best among the believers. 143 About the number of voters, for the jurist, no number is binding since the second rightly guided Caliph, ʿUmar, was appointed by six random individuals on the grounds that they were the best Muslims of their time. In any case, it is still preferable to the highest possible number of believers. The same opinion is shared by Ibn al-Farrāʾ, in which, after the Caliph receives the ED\ʰD by a small number of voters, the whole community must participate in the nomination process, swearing loyalty. The jurist does not accept the idea of entering into the contract by one elector only, anticipating the position of Ibn Taymiyya. 144 For al-Juwaynī, the group of voters must not include women, the ahl al-dhimma nor slaves. Voters are only those who have the necessary requirements to release IDWćZć and had the status of mujtahid. About their number, the jurist agrees with al-Ashʿarī’s position, believing one to be sufficient. Unanimity is not a necessary condition for entering into the contract of Caliphate and, therefore, it is not possible to establish a fixed number of electors. 145 In addition, al-Juwaynī stresses that the contracting parties should belong to ahl al-shawka. 146

H. Mikhail, op. cit., pp. 21–22. Even al-Baghdādī and al-Bāqillanī share al-Ashʿarī’s doctrine for which just one voter is sufficient. They also cite the analogy of the contract of marriage and the lawfulness of having three voters. al-Baghdādī, op. cit., p. 281; A. Abel, op. cit., p. 62; A.K.S. Lambton, op. cit., p. 74; Y. Qurʿush, op. cit., p. 156; Abū Muḥammad ʿAlī Ibn Aḥmad, op. cit., Vol. 5, p. 12. These voters must come also from different parts of the state. This doctrine comes from the need to have a widely representated Caliph, by facilitating the participation of all regions of the state. 143 A. Abel, op. cit., p. 62; A.K.S. Lambton, op. cit., p. 74. 144 Abū Yaʿlā ibn al-Farrāʿ, op. cit., pp. 23–24. 145 ʿA. al-Dib, op. cit., p. 482; J.D. Luciani, op. cit., p. 356. 146 J.D. Luciani, op. cit., pp. 356–357; ʿA. al-Dib, op. cit., p. 483. 142

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According to al-Ghazālī, the election must be attended by the entire community. Since there is no consensus among the jurists on the minimum number of voters, the choice made by one person, shall be allowed, provided he is member of the military force. If the decision is to involve two or three individuals, they will conduct negotiations until agreement is reached. The underlying reason of this doctrine is the lack of importance of the number of voters. For this jurist, it is important that the Caliph enjoys concrete authority after his recognition. 147 Ibn Taymiyya agrees with the opposite opinion and denies election as a valid procedure, although it is generally accepted by the ḥanbalī school. 148 His refusal is based on the inability of the community to make the selection of the best candidate. The believers, according to the lawyer, are not prepared to carry out this task, but even the election by a small college must be repealed, since this would produce unavoidable privileges. Like any contract, even that of Caliphate requires two parts: the Caliph and the men of authority. 149 More specific is Ibn Jamāʿa who argues that the voters should be XPDUćʯ, ʰXODPćʯ, UXʯDVćʯ and people with merits. However, the jurist fails to analyze issues such as the presence of members of the community at the time of the oath, if the voters should be mujtahiGŠQ and if one voter only is sufficient. For Ibn Jamāʿa, such issues are simply irrelevant. What really matters is, on the one hand, that the ED\ʰD is conferred by those who possess the power and that the candidate bears the conditions required for the election. 150 In a chapter of his Muqaddima, devoted entirely to the ED\ʰD, Ibn Khaldūn, states that it is a bond of alliance. With this act an individual or a community submits to a higher authority which entrusts the care of their own affairs, pledging to obey and not to put Al-Ghazālī writes that the Caliphate rests on force and from it comes the oath of allegiance. The number of voters who take the oath is simpli unrelevant. Abū Ḥāmid al-Ghazālī, op. cit., 1964, p. 179. 148 Ibn Taymiyya, op. cit., p. 77; G. Piccinelli, op. cit., p. 90. 149 Ibn Taymiyya, op. cit., p. 27; G. Piccinelli, op. cit., p. 29. 150 Badr al-Dīn Ibn Jamāʿa, op. cit., p. 18; ʿA. al-Dumayji, op. cit., p. 198; A.K.S. Lambton, op. cit., p. 141. 147

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into question the legitimacy. Describing the ceremonial, Ibn Khaldūn explains that: The term [ED\ʰD] is used to indicate the “oath of allegiance to the Caliphs” and as a “declaration of loyalty attached to the oath of allegiance”. The Caliphs made an oath after the contract was signed and received the declaration of loyalty be the part of the community of Muslims. This act is called properly D\PćQDO-ED\ʰD. 151

Starting from this assumption, the VXQQĪ doctrine distinguishes two types of ED\ʰD: the first, called ED\ʰD al-inʰLTćG, and is signed between the Caliph and the voters while the second, ED\ʰD ʰćPPD, signed with the remaining part of the community is a public recognition. 152 Besides LNKWL\ćU, the second procedure of appointment of the Caliph, indicated by VXQQĪ scholars, is the investiture (ʰDKG or istiNKOćI). The jurists agree on its legitimacy, but with some differences. 153 The investiture’s legal foundations rest on the sunna, consensus and practice of the rightly guided Caliphs. However, the last two sources are the most solid. The first phase of this procedure is the investiture, by the Caliph in place, of his successor who will take over at the head of the community after his death. 154 The designate becomes responsible for the interest of the community and takes over the Caliphate. The ahl al-ʚDOOZDpO-ʰDTG must be consulted

ʿAbd al-Raḥmān ibn Khaldūn, op. cit., p. 261; F. Rosenthal, op. cit., p. 429; P. Crone, op. cit., p. 227. 152 ʿA. al-Dumayji, op. cit., pp. 220–221. 153 J. al-Murakkabi, op. cit., p. 362; E. Tyan, op. cit., pp. 116–117; Abū al-ʿAbbās al-Qalqashandī, op. cit., p. 48; ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 97; ʿA. al-Dumayji, op. cit., p. 184; S. Dabbus, op. cit., p. 122; K. Rabbaʿ, op. cit., pp. 97–98; Y. Qurʿush, op. cit., p. 175. 154 al-Bukhārī, al-JćPLʰ DO-ʛDʚĪʚ, kitāb al-aḥkām, n. 7187, al-Maṭbaʿa al-Salafiyya wa-Maktabūhā, Cairo 1979, p. 346; D.B. Macdonald, Development of muslim theology, jurisprudence and constitutional theory, Darf Publishers Limited, London 1985, pp. 13–14; E. Tyan, op. cit., pp. 335– 336. 151

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by the Caliph before the choice is made. 155 In the event that the ʰXODPćʯ reject the choice of the Caliph, he cannot in any way impose his will since the appointment of the believers. As a consequence, the designated (PDʰKŠGODKX) must obtain ED\ʰDʰćPPD by the community. Finally, the LVWLNKOćI is not complete without the consultation of scholars and their ratification. According to al-Baghdādī, if the Caliph transmits the title to a candidate possessing the required qualities, the community bears an obligation to enforce the will of the outgoing Caliph. The designation by the Caliph in office is not a duty. It is reasonable, therefore, to appeal to the community, as ʿUmar did. The doctrine ultimately distinguishes between an LVWLNKOćIIDUGĪ, resulting from the will of the individual, as in the case of the first rightly guided Caliph, and istiNKOćIjDPćʰĪ which results of the choice of a number of people. 156 The main condition of the validity of the investiture is the possession, by the PDʰKŠGODKX, of all the conditions to become Caliph. The lack of these conditions invalidates the contract. Moreover, the PDʰKŠG ODKX must also enjoy the confidence of the Caliph and cannot be imposed by force. The LVWLNKOćI takes place after consultation with the ʰXODPćʯ, while the believers have to recite an oath and obedience. Without these steps, the contract of Caliphate is considered irregular. 157 According to al-Māwardī, the designated heir can be a male relative of the Caliph, but he can also be a stranger. Al-Sanhūrī stresses that, in the event that the ZDOĪDO-ʰDKG is a relative, a confirmation by the scholars is necessary to rule on the legality of the investiture and the opinion is binding. On the contrary, the appointment of his son, according to other opinions, is legitimate, even without the agreement of the scholars, since their agreement al-Māwardī, op. cit., p. 11; E. Fagnan, op. cit., p. 16; E. Tyan, op. cit., p. 338. 156 Y. Qurʿush, op. cit., pp. 177–178; S. Nawar, op. cit., p. 77; alBaghdādī, op. cit., p. 285. 157 M. al-ʿAshmāwī, op. cit., p. 129. This jurist defines the Umayyad in terms of TD\ʜDUL\\ćW DO-NKLOćID. This dynasty introduced the principle of the divine right of kings to rule, expressed by the phrase al-ʚDTTDO-PXOŠN muqaddis li’l-ʚXNP. 155

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on the choice made by the Caliph is not a binding parameter. The ahl al-ʚDOOZDpO-ʰDTG should not necessarily be consulted in case of the appointment of an uncle or brother. The contract is, however, subject to acceptance by the new Caliph. 158 About the time needed to decide on the acceptance, according to some jurist, it is preferable to wait until the death of the Caliph, while for other jurists the designate should be consulted before the Caliph’s death. The heir cannot be deprived of his office and if the Caliph intends to proceed with a new appointment, his choice is void. Even the designated heir can renounce the office, unless the renunciation is accepted by those who have conferred the appointment. The conditions for eligibility are to be held not in the act of investiture but at the time of transfer of power from one to the other Caliph. The simultaneous appointment of two heirs is admitted and, in this case, the Caliph must indicate a specific order among the successors. 159 Finally, the abdication of the Caliph causes the same effect of death and allows the transmission of the title to the heir designate. In general, the VKćILʰĪ doctrine grants wide authority in the heir’s choice by the Caliph: he can assign it to whomever he wants and can remove all the candidates nominated by the former sovereign. According to Ibn al-Farrāʾ, the heir’s appointment is made within the Caliph’s lineage, if the PDʰKŠG ODKX have the necessary characteristics. The quality must also be held at the time of the investiture and the nominated must be present. It is reasonable that the Caliph, as shown by al-Māwardī, appoint two or more heirs, but, after his death, the voters have to choose only one. 160 If the Caliph decides to appoint a council, its members must choose one of them as the designated heir before the death of the Caliph, so that he can become aware of the heir. The self-proclamation even (GDʰZDʰDOćDO-nafs) is considered a mode of appointment, although it ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 105; Y. Qurʿush, op. cit., p. 181. Al-Farrāʿ denies the exclusion of the scholars from the nomination process since the ʰDKG is made with all believers (ʿahd al-PXVOLPĪQD). 159 al-Māwardī, op. cit., p. 15; E. Fagnan, op. cit., p. 24; S. Dabbus, op. cit., pp. 147–149. 160 Abū Yaʿlā ibn al-Farrāʿ, op. cit., pp. 24–25. 158

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represents the most distant procedure if compared with LNKWL\ćU and ʰDKG. 161 A third mode of appointment of the Caliph is defined by doctrine, but it is considered illegitimate. It is the use of force and intimidation. Al-Bāqillānī argues that if the Caliphate is estabished on this basis, the community is obliged to appoint another Caliph. Loyalty is not binding to the governor appointed irregularly, since its legitimacy comes from strength and not from an act of submission. However, the process of integration of the Sultanate in the Caliphate, supported by al-Ghazālī and completed by subsequent jurists, demonstrates the obsolescence of the appointment by election. The delegation (WDIZĪʘ) of power, accomplished in the name of the authority derived from brute force, gives authority through the mutual recognition, a process which also integrates the ʰXODPćʯinto the state apparatus. 162 This process is carried to the extreme outcome by Ibn Jamāʿa, according to which the two canonical appointment procedures, LNKWL\ćU and ʰDKG, remain valid. However, the Caliphate established by force is the only existing form and is set by the power of the ʜćʚLEDO-shawka, who holds coercive power. 163 The contract is made by virtue of coercive power already exercised by one of the contracting parties and is designed to maintain the unity of believers. Also, if a second candidate, with equal military strength, challenges successfully the established authority and proclaim a new Caliphate, taking into account the interests of the community, believers must submit to the new governor. The Caliph has authority over each region of the GćUDO-,VOćP, while the delegation is allowed for specific tasks. 164 Therefore, the Abū Muḥammad Ibn Aḥmad, op. cit., Vol. 5, p. 13. ʿA. al-Dumayji, op. cit., p. 223; S. Dabbus, op. cit., p. 170; A.K.S. Lambton, op. cit., p. 114; E. Tyan, op. cit., pp. 355–357; L. Gardet, op. cit., p. 151; Abū al-ʿAbbās al-Qalqashandī, op. cit., p. 58. 163 Badr al-Dīn Ibn Jamāʿa, op. cit. pp. 17–18; E.I.J. Rosenthal, op. cit., p. 44. 164 Badr al-Dīn Ibn Jamāʿa, op. cit. 19. Who is granted the authority over the troops, says Ibn Jamaʿa, may not be competent in the field of finances and vice versa. The legal basis of the specific mandate consists in the practice of the Prophet or that of the rightly guided Caliphs. For ex161 162

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delegate does not have any authority in the areas other than his delegation, unless he receives a general delegation (WDIZĪʘʰćPP). On this basis, if a person comes over with the force and rebels to the legitimate Caliph, public functions are transferred to the new governor and the community must lend him obedience. In this way, the delegation becomes the full authority (WDIZĪʘQćILGK). In his treatise, even al-Qalqashandī has listed al-qahr wa’l-LVWLOćʯ as a third way to establish the Caliphate, even without the oath of allegiance of the learned and the eligibility requirements. 165 In light of this evolution, jurists distinguish genuine Caliphate (NKLOćID ʜDʚĪʚD), and from the illegitimate one (NKLOćIDQćTLVD). The first corresponds to the system of government created by the Prophet that persisted during the four rightly guided Caliphs. The second is also referred to as the NKLOćIDDO-mulk, or kingdom. 166 This distinction has a foundation in a tradition which states that the true Caliphate would only last for thirty years, and later it becomes a mere kingdom. This situation must be accepted as a state of necessity: therefore, it is only temporary and must be removed as soon as possible. This doctrine is clearly expressed in the words of the ḥanafī jurist of the fifteenth century, Ibn al-Humām: In the event that it is impossible to find a man with all the qualities required, for example, if the person indicated for the Caliphate ignores the law or commits grave sins, it would require an armed revolt in order to depose him. But if it is impossible to do in that moment, the community must consider

ample, Abū Bakr appointed Khālid ibn al-Walīd as governor of Damascus. The rationale behind this thinking is to avoid concentrating within a single person highly relevant tasks for the conduct of the state. But history shows that, since the time of the Buyyds, Caliphs ceased to exercise all the prerogatives that were recognized to them. 165 Abū al-ʿAbbās al-Qalqashandī, op. cit., p. 58. 166 Abū ʿĪsā Muḥammad al-Tirmidhī, al-JćPLʰ DO-ʛDʚĪʚ 6XQDQ DOTirmidhi, kitāb al-futūn, n. 2226, Matbaʿa Muṣṭafā al-Bābī al-Ḥalabī, Cairo 1978, p. 503; ʿA. al-Dumayji, op. cit., p. 39; S. Dabbus, op. cit., pp. 85–86; Y. Qurʿūsh, op. cit., p. 187; ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 205– 227 and 287.

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ISLAMIC CONSTITUTIONALISM this Caliphate as valid. We also believe that the decisions of the unjust rulers are, by necessity, executive in countries where they have established their own domain. As we could not consider valid such a type of Caliphate, as that described above, in the face of the threat of universal disorder and attempts at rebellion? But if a new tyrant lay aside the former, the latter must be considered deposed while the second becomes the new Caliph. 167

5.3. Caliph’s rights and duties The relationship between the Caliph and the community is based on precise reciprocal rights and duties, to safeguard the religion and the world. 168 The prerogatives of the Caliph are connected to the exercise of ZLOć\D, defined by jurists as a form of full authority which is limited and never absolute, exerted on third parties with regard to their exclusive interest. 169 According to Santillana, the ZLOć\D is set up by the ED\ʰD and produces two effects: upon the Caliph and upon the community. 170 The duties of the Caliph are classified as wajLEćWGĪQL\\DNKLOćIL\\D and wajLEćWPXOŠNL\\DVXOʞćQL\\D, with one designated with the preservation of religion and the other with the administration of civil affairs. 171 For al-Māwardī, the obligations of the Caliph are ten, divided into religious, judicial and executive: issue judgments and resolve disputes; protect Islamic lands and defend its borders; apply the penalties of the Qurʾān; send comMuḥammad ibn Abī Sharīf, al-0XVćPDUD OL-0XʚDPPDG LEQ $EĪ 6KDUĪI EL-sharʚ al-0XVć\DUD OL-‘l-ʰ$OOćPD LEQ DO-+XPćP IĪ ʰ,OP DO-.DOćP, alMaṭbaʿa al-Kubrā al-Amīriyya, Cairo 1899, p. 283. 168 T.W. Arnold, op. cit., p. 17; S. Dabbus, op. cit., p. 67. 169 ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 137; ʿA. al-Dumayji, op. cit., p. 79. 170 D. Santillana, op. cit., pp. 16–17; L. Gardet, op. cit., pp. 155–156; S. Dabbus, op. cit., p. 290. Legal basis for the ZLOć\D are Qurʾān 4:71 “The believing men and believing women are allies of one another”. 171 al-Māwardī, op. cit., p. 18; E. Fagnan, op. cit., pp. 30–31 and in Abū Yaʿlā ibn al-Farrāʿ, op. cit., pp. 27–28. Abū al-ʿAbbās al-Qalqashandī, op. cit., p. 59; ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 141–171; ʿA. alDumayji, op. cit., pp. 80 and 335. 167

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missions at border posts; proclaim the jLKćG against those who refuse to embrace Islam after being invited to be part of it, except if they belong to ahl al-dhimma; collect the loot and ]DNćW; administer the public treasury without unjustified expenses; appoint honest and trustworthy men to certain tasks, such as the judiciary; oversee the business and study different circumstances to administer the nation. For the maintenance of religion, the Caliph is obliged to comply with the shariʿa and the pillars of Islam. In other words, he shall administer the conduct of prayer, pay the legal alms, assure the performance of the pilgrimage to the holy places and the observation of the fasting month of UDPDʘćQ. 172 The duties of the Caliph aim at facilitating the application of the general principle al-amr bi’l-PDʰUŠIZDpO-QDKĪʰDQDO-munkar, an obligation which concerns the entire community. However, the Caliph is required to use his authority in order to apply these principles. The ʰXODPćʯ help him to fight injustice through their legal doctrine and by means of mission. 173 Setting up a just social order, according to the shariʿa, is one of the duties of the Caliph. According to Qurʾān 58:25: “We have already sent Our messengers with clear evidences and sent down with them the Scripture and the balance that the people may maintain [their affairs] in justice”. The defense of the borders and ensuring internal security, are based on the verse Qurʾān 8:60: “And prepare against them whatever you are able of power and of steeds of war by which you may terrify the enemy”, while the financial policy has its foundation in Qurʾān 4:58. The jurist al-Juwaynī divided the tasks of the Caliph differently, emphasizing the centrality of the care of religion. 174 The Caliph has both religious and secular functions: the first category includes obligations regarding the XʜŠODO-fiqh and those concerning the IXUŠʰ al-fiqh. As usual, the fundamental task of the Caliph is to preserve J. al-Murakkabi, op. cit., pp. 383–391. The legal basis is Qurʾān 3:104 “And let there be [arising] from you a nation inviting to [all that is] good, enjoining what is right and forbidding what is wrong, and those will be the successful” and 3:110 “You are the best nation produced [as an example] for mankind”. 174 ʿA. al-Dib, op. cit., p. 486. 172 173

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religion, promote the mission and possibly the fight against the unbelievers. For obligations related to IXUŠʰ, al-Juwaynī distinguishes two categories: obligations for which there is an explicit rule (QDʜʜ) in the sources of law and those where there is not. The first group includes issues on which a consensus has been formed, such as the conduct of the pilgrimage in conditions of security, as well as matters on which the agreement of the scholars is not yet formed, as the call to prayer. The subjects on which there are no explicit rules do not fall strictly between the Caliph’s obligations, unless he is not called to provide personal opinion. The caliphal duties relating to worldly affairs (DʚNćPDO-GXQ\ć) are made of two types of actions: to preserve what has been achieved and try to get what is not yet possessed. The first group is based on the matter of reference: whether it is internal to the community, it is to prevent the defeat at war and the territorial loss. Preserving the integrity of the territory implies the defense from aggression, the organization of the army and the duty of jihad. The last two tasks also belong to those actions relating to try to get what is not already owned. The Caliph, in the implementation of these tasks, can call for the assistance of ministers, who can also choose to delegate certain functions. Delegation by the Caliph is lawful, but it must not be absolute. The rights claimed by the Caliph on the community are functional to the duties of the believers. These are: obedience, support and advice. The principle of obedience comes from Qurʾān 4:59, where the ZDOĪDO-amr is identified with the rulers. Moreover, obedience is not due solely to the Caliph VKDʰUĪ, who comes to power through a legitimate manner, but it must also be given to the usurper and ruler who is not in possession of all the required conditions. Obedience to the wicked (jćʯLU) Caliph is mandatory like that of the righteous (ʰćGLO). But, the difference is that in the first condition obedience becomes lawful under the principle of necessity. This doctrine is based on the fact that the real object of obedience is not the Caliph in himself but as executor of the shariʿa. 175

Muslim, op.cit., kitāb al-ʿaqdiyya, n. 1715, p. 820 and kitāb alīmān, n. 95, p. 44. See also: ʿA. al-Dumayji, op. cit., pp. 382–392. 175

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Ibn Jamāʿa listed a number of obligations between the Sultan, the Caliph and the community. First, the Sultan must have obedience of the community which he commands upon, except that he commits unlawful actions. 176 Second, the Caliph must accept the advice he received from the believers. Furthermore, he may request cooperation of the scholars to achieve military victory and preserve the integrity of the state. The Caliph is obliged to consult the ʰXODPćʯ, not only on doctrinal issues, but also for administration. Still, he, like the community, must comply with the obligation of the Qurʾān in order to prevent evil and promote good. Finally, he should defend the community by any means, such as by word and action. The community, in turn, is required to preserve the principles of Islam; this means the fight against the innovations and innovators. Muslims must inform the ruler about the moral conduct of the employees and any negligence. The community should expect the defense of the entire Islamic empire by the Sultan if he, as Ibn Jamāʿa says, is also the Caliph, or just a part of GćUDO-,VOćm, if he is only Sultan. 177 Some duties belong both to the Caliph and the community: declare jLKćG against polytheists and the rebels, the promotion of religious sciences; the protection of ʰXODPćʯ, the administration of DZTćIand collection of taxes, the direction of prayer and the observation of the five pillars of Islam. 178 According to al-Māwardī, the Caliph has the right to receive obedience and hold a charge as long as his contract is valid. 179 These actions can be of two types: immoral behavior and dubious opinions. The first are lustful or reprehensible actions; but the abandonment of these practices by the Caliph permits his restora-

Commenting on the verse Qurʾān 4: 59 the jurist adds that the ZDOĪDO-amr refers to the Caliph and his delegates (QXZZćEXKX), including the Sultan. 177 Badr al-Dīn Ibn Jamāʿa, op. cit., p. 21. 178 Badr al-Dīn Ibn Jamāʿa, op. cit., p. 33. 179 al-Māwardī, op. cit., p.19. E. Fagnan, op. cit., p. 33. 176

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tion. The second type of action happens if the Caliph provide for suspicious interpretations of the principles of the shariʿa. 180 The Caliph is fully responsible for his actions. In the field of the criminal law, he applies the law of retaliation (TLʜćʜ). 181 There is, however, consensus among jurists as to whether to apply ʚXGŠG punishments to the Caliph in cases of consumption of intoxicants (shurb al-khamr), unlawful sexual intercourse (]LQć) and false accusation of unlawful sexual intercourse (qadhf). If the Caliph is entitled to apply the law, including ʚXGŠG punishments, according to the ḥanafīs, he cannot apply them for his offenses. According to this school, in fact, running the fixed penalties falls right between the prerogatives of the Caliph, therefore, he can never appoint a delegate (QćʯLE) for this task. Ultimately, if the Caliph was dismissed for having committed offenses punishable by ʚDGG punishment, on the one hand the community would remain devoid of the guide and on the other, the ʚXGŠG punishments cannot be performed. The community has the right to censor the work of the Caliph, as evidenced by the inaugural speech of Abū Bakr, reported by al-Ṭabarī: O Muslims! I have accepted the power only to avoid discord, strife and bloodshed. Today like yesterday we are equal. I can do good or evil. If I act well, thank the Lord; if I act badly, correct me and let me know. Until I obey God, obey me: if I turn away from His will, cease to obey me and feel unbind from the oath that you lent with me. 182

In this case, according to al-Māwardī, scholars disagree: for some this condition prevents both the appointment that the stay in office. While according to other scholars, especially those from the school of alBaṣra, having misinterpreted, and therefore applied, the law does not create any problem. 181 J. al-Murakkabi, pp. 439–440; C. Mallat, “Introduction. Islam and democracy”, in C. Mallat (edited by), Islam and public law, Graham and Trotman, London 1993, pp. 5–7; S. Dabbus, op. cit., p. 53; Y. Qurʿush, op. cit., pp. 245–248; ʿAbd al-Razzāq al-Sanhūrī, op. cit., pp. 179–180. 182 al-Ṭabarī, Vita di Maometto, edited by S. Noja, Bur, Milano 2002, p. 390. 180

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The community has three means to censor the Caliph: LQNćUDO-qalb or censorship of the heart which is charged on all believers, inNćU al-OLVćQ, the action undertaken by the ʰXODPćʯ through knowledge, and finally LQNćU DO-ILʰO, or denial of obedience in the extreme case where the Caliph commits a crime. In this case, the community can also remove the sovereign, even if there are many different opinions on this point. The removal takes place in the case of apostasy because the Caliph, becoming murtadd, is considered NćILU. Therefore, he cannot exercise his ZLOć\D, lacking an essential condition. Even neglecting prayer and religious provisions is an act of disbelief (kufr) and a cause for termination of the contract. 183 The ḥanbalī jurists, starting with Ahmad ibn Hanbal, leaned towards this solution, while the Mālikī, hanafi and shafiʿī jurists deny it. 184 For them, physical weakness (ʰDML]), like illness, causes the dismissal of the Caliph by the ahl al-ʚDOO ZD O-ʰDTG. The same rule applies with respect to temporary or permanent insanity and for physical injuries. 6XQQĪ law schools indicate other cases involving the removal of the Caliph: tyranny (ʲXOP), impiety (fisq) and innovation (ELGʰD). The impiety regards the commission of sins, both serious and light. Tyranny is defined as that action whose agency is lacking in probity, while innovation is the attempt to introduce new dogmas. In reference to the tyranny and innovation the Qurʾān provides for the following verse: Qurʾān 2:124 “God said, my covenant does not include the wrongdoers”. This doctrine is supported by shāfiʿī jurists, by the ḥanafī al-Jassas, and also appears in some traditions reported by Ibn Ḥanbal and Mālik. Some ḥanafī jurists, however, believe that despite the tyranny and wickedness, the Caliph does not lose his office until he has come to forbid the prayer, or has J. al-Murakkabi, op. cit., pp. 461–464; ʿAbd al-Razzāq al-Sanhūrī, op. cit., p. 183; ʿA. al-Dumayji, op. cit., p. 475. Legal basis is contained in Qurʾān 2:42 “And do not mix the truth with falsehood or conceal the truth while you know [it]”. 184 N. Calder, “Friday prayer and the juristic theory of government: Sarakhsi, Shirazi, Mawardi”, in %XOOHWWLQ RI WKH 6FKRRO RI 2ULHQWDO DQG $IULFDQ Studies, vol. 49, no. 1, Cambridge University Press, Cambridge 1986, pp. 35–37. 183

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committed an act of disbelief. The rational basis of this doctrine is that the requirement of justice is not a compelling reason for the validity of the contract. This doctrine is followed by some shāfiʿī, ḥanbalī and mālikī jurists. According to al-Bāqillānī, the removal of the Caliph is always lawful for reasons of tyranny, embezzlement, violence, committing prohibited actions, violation of the rights of believers and negligence in applying ʚXGŠG punishments. 185 The legal methods of removal of the Caliph can be peaceful and non-peaceful. To the first group belongs the resignation i.e. voluntary surrender of power. For some jurists, the resignation is lawful if the Caliph is considered inadequate to be in place. Another doctrine holds that the Caliph should appeal to the community who is entitled to decide. The shāfiʿī school elaborated three doctrines on this topic: the resignation is illegal because it is a right of the community to dispense it; the resignation is lawful according to the decision of al-Hasan, son of ʿAlī and brother of al-Ḥusayn; the resignation shall be lawful only in the presence of a candidate of equal value of the current Caliph. 186

The doctrine of al-Bāqillanī is quoted in Y. Qurʿush, op. cit., p. 244; J. al-Murakkabi, op. cit., p. 469; D. Santillana, op. cit., p. 20; S. Dabbus, op. cit., p. 369. According to this scholar on the issue of removal of the Caliph two positions exist: 1) the Caliphate is configured as a ZLOć\D VKDUʰL\\D and not as ZLNćOD (representation) and thus formally the Caliph could not be removed from office, 2) the removal in cases of impiety is always lawful. But in this case the mālikī and the ḥanbalī schools disagree, not feeling the fisq a compelling reason to come to the removal. The jurist al-Farrāʿ belies all the case studies listed by al-Bāqillanī. For him removal is never lawful, even for offense punishable by ʚDGG, nor fisq. He refers for example to al-Zurqānī in the comment to the Muwaṭṭāʾ of Ibn Mālik that patience (ʜDEU) toward the unjust Caliph is superior to disobedience. The doctrine of this school is more willing to maintain the established order. 186 Abū al-ʿAbbās al-Qalqashandī, op. cit., pp. 65–66; Y. Qurʿush, op. cit., pp. 212–214. According to the ḥanbalī doctrine of al-Farrāʿ resignations are lawful whether the Caliph is treated as a ZDNĪO. The ZLNćOD contract could be repealed from one of the two contracting parties. 185

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The second option is the removal from office, without recourse to violence. The removal is carried out by the ahl al-LNKWL\ćU, those who appointed the Caliph and are allowed to remove him. Finally, the third option is to move away from the Caliph even if proclaiming an armed revolt. On closer inspection, the majority of VXQQĪ jurists denied this possibility for fear of civil war. The khārijī, zaydī and muʿtazilī jurisprudence give a favorable opinion. 187 The legal basis put forward by those who consider the revolt legitimate are Qurʾān 49:9 about the lawfulness to fight the rebels, and Qurʾān 5:2 “And cooperate in righteousness and piety, but do not cooperate in sin and aggression”, where God commands to deal with righteous people (ahl al-ʰDGO) only. Those who voluntarily come out of the community can be divided into the following groups: khawārij i.e. the secessionist of excellence; PXʚDUULEŠQD i.e. those who commit robbery; bughćW i.e. those who rebel legitimate authority of the Caliph. With regards to the right to revolution, there are at least three doctrines: in the first case the suspension of obedience from the community is prohibited by consensus of jurists on the basis of various sources (foremost Qurʾān 4:59). In the second case, not only is the suspension of obedience mandatory, but revolution is prescribed if the community has the necessary strength. In the third case, consent of the scholars is not unanimous: some of them consider lawful to attempt to overthrow (NKXUŠj bi’l-sayf) the tyrant; others prefer anarchy. The distinction lies in the degree of tyranny exercised and whether it qualifies as kufr. Those who deny the possibility of revolution cite the sunna and the consensus on the permissibility to pray behind the wicked Caliph. Patience is a means to deny the evil without disregard obedience and, in addition, maintaining allegiance promotes PDʜODʚD for the community as a whole.

187

232.

J. al-Murakkabi, op. cit., pp. 475–476; P. Crone, op. cit., pp. 230–

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6. THE CALIPHAL GOVERNANCE 6.1. Ministries: Wi]ćra tafZĪʘiyya and Wi]ćra tanfĪdhiyya According to al-Māwardī and Ibn al-Farrāʾ, there are two types of wizara: one that involves delegation and another one that is limited to the execution of certain functions. In the first case, the person who is vested with the charge must have the same qualities of the Caliph, except for belonging to the tribe of quraysh. In addition, he must be able to perform specific tasks in the military and the financial areas. 188 The legal basis of this doctrine is Qurʾān 10:29–30. 189 The minister cannot be replaced except by a person with the same qualities. In the event that all conditions are present, the validity of the appointment depends only on the Caliph’s will. It should be stated that the ZL]ćUD comprises both the overall task of supervising the business community, as well as care about it. The ministers’ power is different from that of the Caliph for two reasons: The first concerns the minister’s job: he must constantly inform the Caliph of the measures he adopts, as well as his administrative acts and appointments. 190 The second reason is related to the duty of the Caliph to examine the actions of the minister and his way of governing, so to ratify those acts that violate the shariʿa. 191 al-Māwardī, op. cit., p. 25; E. Fagnan (edited by), op. cit., p. 43; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 29; H. Bruno – M. GaudefroyDemombynes (edited by), Le livres des magistratures d’El Wancherisi, F. Moncho, Rabat 1937, pp. 11–12; Fadl-Ullah bin Ruzbihan Isfahani, Muslim Conduct of the State based upon the Suluk-8O-Muluk, edited by M. Aslam, University of Islamabad Press, Lahore 1974, pp. 57–59; S.A. Basiuni Raslan, al-:L]ćUD IĪpO-Fikr al-6L\ćVĪ, Dār Qubāʾ li’l-Ṭibāʿa wa’lNashr wa’l-Tawzīʿ, Cairo 2000, p. 23; S. ʿAbd al-Manʿam – H. ʿAbd alRaziq al-Sami, al-1XʲXP DO-LVOćPL\\D DO-VL\ćVL\\D ZDpO-LGćUL\\D ZDpO-ʰDVNDUL\\D, Maktabat al-Rushd, Riyad 2004, pp. 52–60. 189 Those verses are: “And appoint for me a minister from my family, Aaron, my brother”. See also: S.A. Basiuni Raslan, op. cit., pp. 23–24. 190 al-Māwardī, op. cit., p. 28; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 30. Cfr. S.A. Basiuni Raslan, op. cit., p. 32. 191 The Caliph is responsible, for al-Māwardī, for governing the state even with delegated ministers. Therefore, he must examine their actions 188

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The Minister may exercise his duties in person or may appoint delegates in the same way the Caliph does. He can also resolve disputes submitted directly to the Caliph or delegate someone else. The minister is entitled to declare the jLKćG or appoint those who do it on his behalf. Moreover, he can personally enforce measures of government and, in this case, what is lawful for the Caliph also it is to the Minister, except the ability to designate an heir. Regarding the executive ministry (ZL]ćUD WDQIĪGKL\\D), the requirements are generally less stringent because the Minister has to follow the policies established by the Caliph. 192 He executes the orders of the ruler, even if he does not agree with him. In this case, the Minister performs what has been decreed and deemed appropriate for the administration of the kingdom. Also, he executes the orders given by the Caliph to enforce sentences. 193 For this office there is no special investiture provided and the Minister could also be a slave. However, he must possess the following seven qualities: loyalty, honesty, absence of enmity against the people with whom he deals with, good memory, sagacity and the absence of vices and passions. 194 This kind of Minister can be chosen among the GKLPPĪV while this rule does not apply for the delegated Minister as the latter can exercise judicial power. He can also appoint some officials, organize a military expedition and administer the assets of the treasury,

and their ways of administering. This is also the idea of al-Farrāʿ although he places greater emphasis on the role of the minister as ZDNĪO, which is an administrative and not political role. 192 al-Māwardī, op. cit., pp. 28–29; E. Fagnan (edited by), op. cit., p. 49; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 30; M. Aslam, op. cit., p. 58. 193 al-Māwardī, op. cit., pp. 29–30; E. Fagnan (edited by), op. cit., p. 51; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 31; H. Bruno – M. GaudefroyDemombynes (edited by), op. cit., p. 12. In his $GDEDO-:D]ĪU, al-Māwardī states that the delegated minister is also said ZD]ĪUPXʞODT or absolute minister while the executive minister is said ZD]ĪUPXTD\\LG or limited minister. 194 al-Māwardī, op. cit., 1972, p. 67–68; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 29.

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unlike the executive Minister. 195 As for the personal qualities of the delegated Minister, he must be free, Muslim, expert in religious sciences and, in particular, on the right of war and taxes. The Caliph can appoint two executive ministers, but only one delegated minister, the same way it is forbidden to appoint two Caliph at the same moment. 196 If two delegated ministers are appointed, the oldest remains in charge or the Caliph could attribute a shared function to the two ministers. Finally, the Caliph could entrust two distinct geographical areas, one for each minister. In this case, each Minister has full and total responsibility of government, like the Caliph. 197 They are accountable to the believers and to God, justifying, in modern times, the adoption of the parliamentary government. 198 6.2. Emirates: Imćrat al-istilćʯ and Imćrat al-istiNfćʯ The Caliph can confer the title of emir according to his will, but the emirate can also be achieved by conquest. If the emirate is the result of an appointment is told LPćUDWDO-LVWLNIćʯ and if it is the winning result it is said LPćUDW DO-LVWLOćʯ. 199 In the first case, the emir is assigned a region and the task of governing the population there. He has to organize the troops, fix the remuneration of the soldiers, unless these tasks have not been performed by the Caliph, appoint Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 31. The latter author points out that freedom, the Islamic faith, knowledge of the principles of law, war and taxes do not apply to the executive minister but only to the delegated one. 196 See Qurʾān 21:22 in cui si legge che: “Had there been within the heavens and earth gods besides God, they both would have been ruined. So exalted is God, Lord of the Throne, above what they describe!”. 197 S.A. Basiuni Raslan, op. cit., pp. 49–55. Delegated minister was Yaḥyā ibn Khālid al-Barmākī who was appointed by Harun al-Rashid. See: S.A. Saʿid, al-6XOʞDZDpO-ʚXUUL\\DIĪpO-QLʲćPDO-LVOćPĪ'LUćVD0XTćUDQD, Dār alFikr al-ʿArabī, Cairo 1982, p. 100. 198 S.A. Basiuni Raslan, op. cit., pp. 86–87; J. al-Murakkabi, p. 436. 199 al-Māwardī, op. cit., p. 35; E. Fagnan (edited by), op. cit., p. 59; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 34. See also: M. Aslam (edited by), pp. 59–62; S. ʿAbd – H. ʿAbd al-Rāziq, op. cit., pp. 71–86. 195

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judges, collect property taxes and jizya and divide the incomes among those eligible, defend religion from all forms of alteration, apply the fixed penalties; exercising the functions of Imam on the Friday prayers, facilitate the pilgrimage and, finally, defend the borders and move jLKćG against neighboring territories, dividing the spoils among his troops. 200 The condition attached to the emir are those required for the delegated Minister. The assignment of the title takes place on the initiative of the Caliph: in this case the delegated Minister exercises upon the emir a mere power of control but he can neither depose or transfer him to another province. If the appointment is made by the Minister, as delegated by the Caliph, then the emir can be removed or moved, with the approval of the Caliph. 201 When an emir and a minister are so bound together, the removal of the second also causes the removal of the first unless the Caliph did not confirm it. The emir may appoint an Executive Minister without receiving permission from the Caliph, but he cannot appoint a delegated Minister unless it has received the consent from the Caliph. The position of emir appointed by the Caliph does not expire after the emir’s death, unlike the one chosen by the Minister, who shall lapse if he should be discharged; in the first instance, the appointment draws its legitimacy from the Islamic community. On the contrary, in the second instance, the appointment is merely a private contract between the two parties. 202 The special emirate involves the task of organizing the troops, make the judgments, protect the land, preserve all that is considered sacred, but the emir cannot intervene in the administration of justice, and can only collect the NKDUćj (property tax) and jizya. 203 al-Māwardī, op. cit., p. 35; E. Fagnan (edited by), op. cit., pp. 59– 60; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 34. 201 Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 35. 202 Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 36. See also: S. Dabbus, op. cit., p. 100. 203 On the application of Qurʾānic punishments, according to alMāwardī, the emir can not intervene if he is faced with unusual situations for which is necessarily requested an opinion of the scholars. In the case of retaliation rather the emir, and not the judge, is the most qualified. al200

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The title of special emir can be given to a person who has the qualifications required for the delegated minister, except the possession of religious science. 204 Typically, the emir is not required to notify the Caliph periodically but, if this happens, it is considered a great demonstration of loyalty. This title is awarded to those who have forcibly occupied a territory and were later invested by the Caliph the legal authority. 205 To make functional the investiture, seven conditions must be met: the emir must recognize the role of the Caliph and his character of necessity; He must show full obedience to the Caliph; an agreement of friendship and mutual aid must be signed; He must accept any sound decisions undertaken by the Caliph; He must collect taxes lawfully, run the Qurʾānic punishments and safeguard the religion. A special feature is attributed to the emir of the war. 206 This charge may be limited to the management of shipments and the care of the armed forces, or may relate to the division of the spoils, or the signing of a peace agreement. In the first case, the emir must possess the qualities required for the special emirate; in the second case, instead, he requires only the quality provided for the general emirate. The tasks of the emir of the war are conducting military operations against the polytheists and the NXIIćU after they are invited to embrace Islam, setting out the standards of conduct for his combatants. Being the chief army, the emir can arrange night raids and even start a war, if it is deemed unavoidable. If the title of emir of the war has been granted for a single occasion, the emir cannot exceed his duties. But if he has been appointed for several years then he can go to war whenever he considers it being appropriate.

Māwardī, op. cit., p. 37; E. Fagnan (edited by), op. cit., pp. 63–64; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 36. 204 al-Māwardī, op. cit., p. 39; E. Fagnan (edited by), op. cit., p. 65; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 37. 205 al-Māwardī, op. cit., pp. 39–40; E. Fagnan (edited by), op. cit., p. 66; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 37. 206 al-Māwardī, op. cit., p. 43; E. Fagnan (edited by), op. cit., p. 71; Abū Yaʿlā ibn al-Farrāʿ, op. cit., p. 39.

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6.3. The ʛćʚib al--maẓālim The office of ʛćʚLE DO-PDʲćOLP became necessary when, after the end of the Caliphate of ʿAlī, many social behaviors not in conformity with Islam began to spread. According to al-Māwardī, to judge about these acts should be entrusted to a respectable and righteous man. This title in fact sums up the coercion of law enforcement and the firmness of the judges. 207 To run a trial, the ʛćʚLEDO-PDʲćOLP must establish a day on which the parties must appear before him. Once convened the hearing, the ʛćʚLE must be aware of the dispute that may deal only with abuses of power committed by governors, tax collectors, official scribes, dealing with the execution of judgments not yet implemented, surveillance on public affairs that are outside the jurisdiction of judges, arbitration. 208 There are considerable differences between the way of administering justice by the ʛćʚLEDO-PDʲćOLPand the TćʘĪ, for example, the ʛćʚLE can do crime prevention, can conduct investigations and he may impose discretionary penalties. According to Hallaq, this court can be compared to the court of equity of modern common law systems, since it was seized only in cases of complaints against public employees in the event of abuses of power, such as misappropriation of private property; crimes committed in the act of performing public services; cases of corruption and to make decisions that the judge could not apply. 209

al-Māwardī, op. cit., p. 97; E. Fagnan (edited by), op. cit., p. 157. See also: M. Aslam (edited by), op. cit., pp. 229 and 234; H. F. Amedroz, “The Mazalim Jurisdiction in the Ahkam Sultaniyya of Mawardi”, in JourQDORIWKH5R\DO$VLDWLF6RFLHW\RI*UHDW%ULWDLQDQG,UHODQG, Royal Asiatic Society of Great Britain and Ireland, London 1911, pp. 635–674; J. Schacht, op. cit., 1964, p. 51; J.S. Nielsen, “Mazalim and Dar al-ʿAdl under the Early Mamluks”, in The Muslim World, vol. 66, no. 2, Hartford Seminary, Hartford 1976, pp. 114–132. 208 al-Māwardī, op. cit., p. 97; E. Fagnan (edited by), op. cit., p. 158. 209 W.B. Hallaq, 6KDUĪʰD 7KHRU\ SUDFWLFH WUDQVIRUPDWLRQ, Cambridge University Press, Cambridge 2009, p. 55; K. Vikor, Between God and the 6XOWDQ$KLVWRU\RIIslamic Law, Hurst & Company, London 2005, p. 191. 207

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6.4. The M uḥtasib The PXʚWDVLE, sometimes called ʛćʚLEDO-VŠT, or ʰĆPLODO-VŠT, is generally considered the inspector of markets and all public places. His jurisdiction arises between the public and private spheres and is to promote the good and prevent evil. The legal basis of this institution is provided for in Qurʾān. 3:100, in which the order to rise complaints for controversies is addressed to all Muslims. 210 In fact, the PXʚWDVLE was commissioned for appointment and he must also pay heed to those who have asked directly, conducting the necessary inquiries. He has a number of auxiliaries to investigate and may impose discretionary penalties. 211 The qualities required for this position are: belonging to Islam, full capacity to act, moral integrity, freedom, judgment and religious firmness. The ʚLVED, therefore, is seen as an intermediate institution between the judiciary and the PDʲćOLP courts. For al-Māwardī, the function of muhtasib regards the protection of God’s rights, men’s rights and the common rights belonging to both. The PXʚWDVLE, in case of unlawful acts, should intervene both repressing the fact already made but also imposing punishments proportionate to the offense. Regarding the supervision of markets, he can control the traders, in order to ensure honest transactions. 212 Regarding the coercive powers available, the PXʚWDVLE may impose the discretionary penalties, only upon people endowed with discernment, be they R. Mottahedeh – K. Stilt, “Public and Private as Viewed through the Work of the Muhtasib”, in Social Reasearch, vol. 70, no. 3, The New School for Social Research, New York 2003, p. 735; R.P. Buckley, “The Muhtasib” in $UDELFD, vol. 39, no. 1, Brill, Leiden 1992, pp. 59–117; W.B. Hallaq, op. cit., pp. 209–210; S. ʿAbd al-Munʾim – H. ʿAbd al-Raziq, op. cit., pp. 123–149. 211 al-Māwardī, op. cit., p. 299; E. Fagnan (edited by), op. cit., p. 513; Taqi al-Din Abū al-ʿAbbās Aḥmad Ibn Taymiyya, al-ʙLVED IĪpO-,VOćP DZZD]ĪID DO-ʚŠNXPD DO-LVOćPL\\D, Dar al-Kutub al-ʿIlmiyya, Beirut 2010. See also: M. Aslam, op. cit., pp. 181–211; M. Kamal al-Din Imam, 8ʜŠODO-ʚLVED IĪpO-,VOćP'LUćVDWDʯDVĪOL\\DPXTćUDQD, Dār al-Hidāya, Cairo 1998. 212 al-Māwardī, op. cit., p. 318; E. Fagnan (edited by), op. cit., p. 546; B.R. Foster, “Agoranomos and Muhtasib”, in Journal of the Economic and Social History of the Orient, Vol. 13, No. 2, Brill, Leiden 1970, pp. 128–144. 210

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free or slaves, men or women, Muslims or unbelievers, pubescent or prepubescent. 213 The sentence imposed may be a verbal warning or a corporal punishment or even a fine. It is uncertain whether the PXʚWDVLE can impose the death penalty. According to Ḥanafī jurists it is permitted, but only for serious offenses. According to other schools, like the mālikī and shāfiʿī schools, however, it is never elicit to ask for death penalty, unless this has been ordered directly from the Caliph. 214 This whole system of government disappeared with the process of hybridization following the contact between the Ottoman Empire and Europe, as will be seen in the next chapter. In the centuries between the fifteenth and nineteenth the Ottoman political theory did not change very much. The Ottoman sovereigns, aware that they cannot be called Caliphs because of their ethnicity, resorted to a historical myth: In 1517 the Ottoman ruler Sālim I (1465– 1520) forced the defeated Caliph al-Mutawakkil III, last exponent of the Abbasids dynasty, to give him the title of Caliph, and, therefore, he was the first Sultan of the Ottoman dynasty to assume this title. Ideally, the Ottoman political theory was based on a continuity with the Caliphate, especially the irregular one. But in reality, it was an absolute hereditary monarchy very similar to what Ibn Khaldūn, a few centuries earlier, had called mulk.

213 214

M. Kamal al-Din Imam, op. cit., p. 103. Ibn Taymiyya, op. cit., 2010, p. 51.

CHAPTER II. THE LEGAL CLOSURE OF THE CALIPHATE AND THE RISE OF ISLAMIC CONSTITUTIONALISM 1. LEGAL CODING AND THE “MODERNIZATION” OF ISLAMIC LAW The rise of Islamic constitutionalism, an original reworking of European doctrines, was simultaneously the cause and the consequence of the process of transformation which, during the nineteenth century in the Ottoman Empire, faced Islamic law as a whole, including those norms and regulations relating to public law. This process arose from above, that is, it did not constitute a reaction to the indifference of the believers to the Islamic law. On the contrary, it was a mere imposition by Ottoman governments who foresaw a solution to some of the problems that plagued the territories under their rule. 1 In fact, the constitutional experience began in the middle of the economic crisis and in the context of international and diplomatic clashes. 2 In the case of the Ottoman Empire, the vast wave of reform known as the WDQʲĪPćW (1826–1880) avoided the defeat of the state, N. Anderson, Law reform in the Muslim World, The Athlone Press, London 1976, pp. 14–15. See also: Y.Y. Haddad – B. Stowasser, “Introduction. Islamic Law and the challenge of modernity”, in Y.Y. Haddad – B. Stowasser (edited by), Islamic Law and the challenge of modernity, Altamira Press, Walnut Creek 2004, pp. 3–6. 2 N. Brown – A.O. Sherif, “Inscribing the Islamic Shariʿa in Arab Constitutional Law”, in Y.Y. Haddad – B. Stowasser (edited by), op. cit., p. 56. 1

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subjected to threats from neighboring countries. One of the aspects of the WDQʲĪPćW was the codification of the law, i.e. the attempt to pour the contents of the VKDUĪʰa and fiqh into written texts. According to Anderson, it was a real change of the revealed law by the codes, for the application of which secular tribunals, called QLʲćPL\\D, were established. 3 The increase in economic relations between the Ottoman Empire and Europe represented the reason why the first area to be reformed was commercial law. In particular, to give impetus to the reform and the establishment of a system of secular courts, a commercial treaty was signed in 1838. In 1850 the Commercial Code was approved, a clear French influence, 4 followed, between 1861 and 1863, by the procedure for commercial courts and the navigation code. It was also noted that the importance of these texts lies, among other things, in introducing some exemptions to the VKDUĪʰa, for example the possibility for the GKLPPĪ. The codification of criminal law was certainly the most fraught with consequences, calling for the need to modernize some traditional norms. 5 The development of the first criminal code was completed in 1840. The text was composed of a set of rules from which emerged the attempt to reconcile Islamic tradition with the secular imprinting, thus revealing the dual character of WDQʲĪPćW. Together with the principle of equality, the new criminal legislation established that of the legality and right to due process. A second code, not dissimilar from the first, was completed in 1851. In 1858, a third code, inspired by the French model of 1810, was

N. Anderson, op. cit., pp. 16 and 34. N. Coulson, $+LVWRU\RI,VODPLF/DZ, Edinburgh University Press, Edinburgh 1964, p. 151; D.G. Nadolski, “Ottoman and secular civil law”, in International Journal of Middle East Studies, vol. 8, no. 4, Cambridge University Press, Cambridge 1977, pp. 517–543. In addition to the secular court system, the system of trade was placed under the supervision of the Ministry of Commerce, established for this purpose in the 1840s. 5 N. Berkes, The development of secularism in Turkey, McGill University Press, Montreal 1964, p. 162. 3 4

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produced. 6 Though it was not entirely without reference to the VKDUĪ‘a, this code favored its secular spirit, to the detriment of the Islamic one. 7 Also, it was applied in the QLʲćPL\\D courts placed under the control of the Ministry of Justice. Sometimes new courts collaborated in specific matters, with the traditional ones administered by Shaykh al-,VOćP. 8 On the level of civil law, the codification led to the drafting of the Majalla. For the development of this code, divided into sixteen books, a special commission was named, whose works lasted, with few interruptions, for seven years, from 1869 to 1876. 9 The most important feature of the Majalla was the contradiction between its contents and its shape, the first distinctly Islamic, the second clearly inspired by the Western codes. As for the content, the Majalla collected most of the rules relating to muʰćmalćt in the version drawn up by the ḥanafīs. Only the rules concerning the personal status law were excluded. 10 The rationalization of the Islamic system of law went hand in hand with the mutation of the role of ʰXODPćʯ, traditional interpreters of the revealed law, since the new codes were adopted by the Sultan. Up to that moment, the Sultan adopted the TćQŠQ acts of administrative nature that fell outside from the reference spectrum of religious law. 11 It was the first example of Western-fashioned code in the Islamic context. It remained in force longer than others (1858–1918) and was amended twice in 1911 and again in 1914. 7 The Ottoman penal code opened a practice followed by all Islamic countries i.e. the exploitation of the traditional tripartite division of the Islamic punishments: ʚXGŠG, taʰzĪr and TLʜćʜ. The application of retaliation was mitigated. 8 N. Berkes, op. cit., 1964, p. 165. 9 In this specific case, the Shaykh al-,VOćP felt that the codification was lawful because it was an action of LIWćʯ. 10 B. Messick, The calligraphic State. Textual domination and history in a muslim society, University of California Press, Berkeley 1993, pp. 54–55. 11 A. Layish, “The transformation of the Shariʿa from jurists’ law to statutory law in the contemporary muslim world”, in Die Welt Des Islams, no. 44, vol. 1, Brill, Leiden 2005, pp. 85–113. 6

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Through these innovations, the Islamic legal system experienced a relentless and intimate transformation from “jurists’ to statutory law”. However not only was the nature of the legal system changed, but also its perception by the people: the division between ʰLEćGćW and PXʰćmalćt was adopted to distinguish the divine part of the VKDUĪʰa from the secular and modifiable one. 12 Moreover, the codification embodied the modernizing ethics of Western countries and constituted an attempt to assimilate the Ottoman Empire to the international system. Through the legal codification process, many constitutional implications have resulted. For the first time in Islamic history, the principles extracted from the VKDUĪʰD were transposed in a positive law (TćQŠQ) prepared and issued by an entity called “state”, whose authority had become paramount. 13 The attribution of the legislative monopoly to the state led, on the one hand, to the crisis of the idea that the divine law possessed authorities per se, preceded the state and created it; on the other hand, however, it brought into question the role of ʰXODPćʯ, which until then had been recognized as the legislative authority. 14 Therefore, the reason why the phase of legal acculturation in the field of constitutional law was a cause and consequence of the change of Islamic law is clear: the constitution, i.e. a written text containing all the relevant regulations on the B. Messick, op. cit., p. 61. The term TćQŠQ was not introduced into the Islamic legal system. It co-existed with the traditional Islamic law system, although it has been used mainly in the Ottoman era. The Sultans used to collect the laws they adopted and that had force in some regions. These texts ceased to be applied with the death of the Sultan who promulgated them. That is because the TćQŠQ reposed its base of legitimacy in the power of the Sultan and not in VKDUĪʰa. See on that point: R.C. Repp, “Qanun and Shariʿa in the Ottoman context”, in A. al-Azmeh, Islamic Law: social and historical contexts, Routledge, London 1988, pp. 124–144. 14 Reference is made to the definition of the state of Max Weber. Also, the functional definition of political power is taken from the same author, being that the power to arrogate to itself the monopoly of legitimate violence. M. Weber, Economia e Società, Edizioni di Comunità, Milano 1981. 12 13

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functioning of the state, was an act of coding itself and, identifying and disciplining the public authorities – in particular the Parliament – inexorably endorsed the process of transformation of the Islamic legal system. This transition was made easier by the fact that the constitutional law is an area to which the Qurʾān and the sunna are silent, the development of the rules being prerogative of the jurists. 15 If, as pointed out by Vikor, Islamic law was applied in the courts like any other law, the legal acculturation produced a transformation from religious to secular law due to the alteration of its administrator: from the independent jurists it had become the state. 16 Where the Caliph was subject to the law and shared the judicial functions to ʰXODPćʯ, the state overthrew this model, assuming the responsibility to define what was legal and what was not. 17 This entirely new epistemology caused the transition from jurists’ law to statutory law, which was mentioned before. 18 Also in the field of the judiciary, the codification entailed a reversal of perspective. As showed The difference stands out even more when comparing the rules contained in the Qurʾān in constitutional matters with those relating to personal status (DʚZćO VKDNKʜL\\D), such as marriage, divorce and inheritance. Almost simultaneously, a similar process occurred in the Ottoman Empire in Egypt due to the relative independence that the country enjoyed from 1874 during the government of Ismā‘īl Pāshā (1830–1895). See on this point: N. Anderson, “Law reform in Egypt: 1850–1950”, in P.M. Holt (edited by), Political and social change in modern Egypt, Oxford University Press, Oxford 1968, pp. 209–230; S.H. Amin, Islamic Law & its implication for the modern world, Royston ltd, Glasgow 1989, p. 11. 16 Vikor K., %HWZHHQ*RGDQGWKH6XOʞćQ$KLVWRU\RI,VODPLF/DZ, Hurst & Company, London 2005, p. 222; J.L. Esposito, “Islam and muslim politics”, in J.L. Esposito (edited by), Voices of Resurgent Islam, Oxford University Press, Oxford 1983, p. 6. 17 W.B. Hallaq, “Can the Shariʿa be restored?”, in Y.Y. Haddad – B. Stowasser (edited by), op. cit., p. 22. 18 The codification produced the extinction of what Hallaq defines LMWLKćGLF pluralism that is, the jurisprudential disagreement, inexhaustible reservoir of legal solutions. Codification, if created order, was also the cause of legal crystallization. 15

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in the previous chapter, beside the TćʘĪ, several other structures of the judiciary, such as PXʚWDVLE and PDʲćOLP, existed that could be heard in special circumstances. With the process of reform, the national courts were assigned a type of general jurisdiction, reserving a limited competence to the religious courts, before disappearing altogether. The constitution, by assigning to the state the full legislative function, i.e. the ability to determine the content of the law, allowed it to act above the latter. Hallaq stresses that codification is not a neutral act, on the contrary, it conveys a political choice aimed at limiting the freedom of interpretation of jurists and judges. The case of Islamic law was not an exception: the codification ousted from the production of the right of those, the ʰXODPćʯ, who were traditionally responsible. This was made possible by codifying the rules regarding the public authorities, by the centralized management of the places of legal knowledge and introducing some innovations in the curus studiorum for legal practitioners. In 1826, for example, the Sultan Maḥmūd II (1785–1839) created the Ministry of Imperial $ZTćI, thus assuming the administration of the physical spaces within which the legal knowledge was stored. Also, at the same time, he encouraged the spread of study centres and schools guided by the model of the European colleges. Following the reforms, the new bureaucrats not only had to profess loyalty to the Sultan, embrace Islam and know the Ottoman customs and language, but they also had to know the techniques of modern (Western) sciences and at least one European language. 19 According to Hallaq, the disappearance of the VKDUĪʰa was the outcome of a “demolition and replacement” strategy, favored by widespread cultural hegemony exercised by Europe. This strategy confirms that, although it is believed that the constitution is something imported, all the constitutions adopted since today in the Muslim world, starting with the Ottoman one, derived from an

S.J. Shaw, “Some aspects of the aims and achievements of the nineteenth-century ottoman reformers”, in W.R. Polk – R.L. Chambers (edited by), Beginnings of modernization in the Middle East, The University of Chicago Press, Chicago 1968, p. 36. 19

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indigenous background and a hybridized cultural framework. 20 The early proponents of constitutional thought in the sunnī and shīʿī contexts possessed an Islamic education enchanted by the Western idea of progress and conditioned by a spirit of emulation toward Europe. The difference between Europe and Islam was well known, while the purpose of the jurists was not to draw the Western legal culture transplanting it in their countries. Then the transposition of new ideas was necessary since any legal system is intimately connected to a body of values that justify it. However, this justification remained anchored to Islamic arguments. 21 The oldest constitutions adopted in the Muslim world, the Law of the Tunisian State (or Dynasty) (4ćQŠQDO-Dawla al-7ŠQLVL\\D) of 1861, the Ottoman constitution of 1876 and the Persian constitution of 1906, can be attributed to the cycle of “liberal constitutionalism”. This phrase means the philosophy that forms the background to the aforementioned constitutions, adopted during the first half of the twentieth century and following the collapse of the Ottoman Empire. Since the purpose of these constitutions was to revive the economic and administrative fate of old imperial bodies or establish the legitimacy of the new nation states (as in the Egyptian monarchy in 1882), the proponent jurists faced the problem of compatibility with VKDUĪʰa. 22 The constitutions, far from being considered the key instruments for the promotion of the transforEven the Treaty of Paris signed in 1856, which was mentioned in the first chapter, is assumed as an example of this hegemony. Through the adoprion of this treaty, the Ottoman state agreed to submit to the rules of the European “legal standards”. Beyond its legal value, this treaty indicats how the Turkish Empire perceived itself in relation to the European powers and its sense of insecurity regarding the neighboring states. 21 H. Gibb, “The reaction in the Middle East against western culture”, in B. Rivlin – J.S. Szyliowicz, The contemporary Middle East. Tradition and innovation, Random House, New York 1965, p. 134. 22 N. Brown – A.O. Sherif, op. cit., pp. 57–60; N. Brown, Constitutions in a nonconstitutional world, State University of New York Press, Albany 2002, pp. 15–34; S. Arjomand, “Islamic Constitutionalism”, in $QQXDO Review of Law and Social Sciences, vol. 3, Annual Reviews, Palo Alto 2007, p. 116. 20

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mation of Islamic law, were supposed to be not at odds with the latter. The Ottoman constitution served as a model for other charters and stared some featuring elements of Islamic constitutionalism: the confessional clause elevating Islam to the official religion and the requirements on the Head of state to profess Islam. That requirement does not always draw basis by an explicit constitutional precept, going up rather to the practice. The principle of sovereignty, borrowed from Europe, was not in contradiction with the Islamic law as the primary purpose of the constitutional doctrine was the claim, sometimes rather the affirmation, of independence. In addition, the use of concepts such as VL\ćVD VKDUʰiyya allowed to justify the legislative procedure, defined VXOʞDWDVKUĪʰyya being in accordance with the Qurʾān and the sunna. 23 Before looking at the theoretical outcomes of Islamic constitutionalism, and the concrete shape that is assumed in some chapters, one last clarification is needed: it is not accidental that the development of Islamic constitutionalism has been put here in connection with the process of legal codification. 24 An-Naʾim is right in saying that in the Qurʾān there is no mention of constitutionalism and that, therefore, it is the result of human processing. It is undeniable that the classical doctrine on the Caliphate dealt with “constitutional” problems and speculations. As shown before, it was a merely secular doctrine that never claimed divine origin. However, the jurists have always sought the necessary religious justification to the theories that took from the West and have

B. Botiveau, Loi Islamique et droit dans les sociétés arabes, Khartala, Paris 1993, pp. 62–63. 24 R.H. Davison, “The advent of the principle of representation in the government of the Ottoman Empire”, in W.R. Polk – R.L. Chambers (edited by), op. cit., p. 96; S.J. Shaw, “The central legislative councils in the nineteenth century ottoman reform movement before 1876”, in International Journal of Middle East Studies, vol. 1, no. 1, Cambridge University Press, Cambridge 1970, pp. 51–84. 23

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stretched their interpretative effort to demonstrate that there were no obstacles to import such models of governance. 25

2. EARLY CONSTITUTIONAL DOCUMENTS AND THE LATE OTTOMAN SYSTEM The Ottoman system of government, though officially still modelled on the prototype of the Caliphate, specifically corresponded to a form of hereditary monarchy and almost completely without control bodies. Listening to the petitions, the reception of delegations of the provinces and the convening of general meetings, functioned to some extent as a counterweight to the will of the Sultan without fulfilling the function of representation. 26 According to the jurists of the seventeenth century, the Sultan was appointed by his subjects through the voters, thus following the doctrine relating to the Caliphate. The voters were mostly members of the court and the military leaders who gave their allegiance to the Sultan during the act of investiture. 27 Ubicini, a statesman of the WDQʲĪPćW, in 1876 wrote that the Ottoman government was similar to an absolute monarchy, tempered by the existence of some institutions and practices that limited his exercise of power. The succession to the throne happened according to birthright, but the title could be transmitted to any member of the Princely dynasty, too. 28 The Sultan was the sole representative of the Islamic law, was appointed to

Liberal constitutionalism has never shown interest in democratic instances, such as the extension of political rights, or equality and gender issues. Both of these topics have been dealt with by the democratic constitutionalism. Even in Europe and the United States, where constitutional doctrines of liberal matrix were formulated for the first time, these theories owned a fully democratic character. 26 S. Mahmassani, al-$Zʘćʰ DO-WDVKUĪʰL\\D IĪpO-duwal al-ʰDUDEL\\D, Dār alʿIlm li’l-Malāyīn, Beirut 1962, pp. 171–172; R.H. Davison, op. cit., p. 95. 27 A.D. Alderson, The structure of the ottoman dynasty, Oxford University Press, Oxford 1956, pp. 8–9. 28 A. Ubicini, État présent de l’empire ottoman, Libraire Militaire de J. Dumaine, Paris 1876, pp. 71–73. 25

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its execution and could even change it, limited to some parts such as those relating to the PXʰćPDOćW. 29 The idea that outside the borders of the Ottoman Empire there existed more effective forms of government than the one adopted by the latter took shape as early as 1717, when some military defeats had highlighted the differences with the Western world. Despite several reforms implemented by Salīm III (1761– 1808), through the adoption of a QLʲćPjDGĪG, the first steps towards the realization of a modern form of state were carried out during the season of WDQʲĪPćW. 30 The reforms in the constitutional and administrative fields started a new conception of the Sultan in the European example. 31 Some results were achieved during the reign of Maḥmūd II (1808–1839), despite the fact that the reforms were intended to imitate Europe rather than creating and applying new political models. The Sultan saw the need to modify the relationship with his subjects and was convinced that the actions of government should cover all areas of human life. Despite the centralizing philosophy that inspired the reforms, an important result was the division of the government between a plurality of members. 32 The first act of this process consisted in the creation of a Council, known as the Council of WDQʲĪPćW, tasked exclusively with enforcing the reforms. In a short time, this organ was divided in a civil and a military section, each of which was, in turn, being divided into even more specialized agencies. Each section had the prerogative to propose laws on key issues. 33 The religious establishment of the Ottoman court ruled in favor of these innovations A. Ubicini, p. 74. N. Berkes, “Historical background of turkish secularism”, in R.N. Frye (edited by), Islam and the west. Proceedings of the Harvard summer school conference on the Middle East, Mouton & Co., Harvard 1957, p. 49; B. Badie, I due Stati. Società e potere in Islam e occidente, Marietti, Genova 1990, p. 73. 31 S.J. Shaw, op. cit., p. 31; N. Berkes, op. cit., 1957, p. 58. On the reforms undertaken by Sultan Salim III see pp. 56–57 of the same book. C.V. Findley, Bureaucratic reform in the ottoman empire. The Sublime Porte 1789– 1922, Princeton University Press, Princeton 1980, pp. 4–5. 32 N. Berkes, op. cit., 1957, p. 61; B. Badie, op. cit., p. 146. 33 S.J. Shaw, op. cit., pp. 34–35. 29 30

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since, in 1727, with a IDWZć printing became lawful. 34 Among the reasons for which the scholars resorted to legitimize innovations, was one concerned with jLKćG and the need to struggle by any means: learning from Europe was not a reprehensible innovation, but an application of the principle of reciprocity on the basis of which it was permissible to fight enemies using the same weapons. 35 Other arguments were drawn from classical Islamic history, such as episodes of fighting between PXVKULNŠQ and NXIIćU learning the methods of war of other nations. In some cases, according to the scholars, the Europeans, for fear of the superiority of the Ottomans, found themselves forced to draw on Islamic science. Fighting against them, thus, was to regain something that originally belonged indisputably to Islamic civilization. Finally, the legitimacy of the process of modernization passed by the exegesis of the Qurʾānic verses (4:58–59) that command believers to obey the ZDOĪ (the Sultan) and to his will. 36 The ʰXODPćʯ were not conscious of the secular shift that the Empire was taking, and believed that the Ottoman Empire was, in effect, an Islamic state fully based on the application of shariʿa. 2.1. The Gülhane edict of 1839 This phase of reform started in 1839 with the adoption of the Gülhane edict. This document is considered a preview of the Ottoman constitution of 1876, although it did not possess any truly representative intent. 37 The purpose of its main architect, Rashīd Pāshā U. Heyd, “The ottoman ʿulema and the westernization in the time of Selim III and Mahmud II”, in A. Hourani, P.S. Khoury, M.C. Wilson, The modern Middle East: a reader, I.B. Tauris, London 1993, p. 29. 35 U. Heyd, op. cit., p. 37. 36 Ibid., p. 39. About the interest of ʰXODPćʯ, or at least a part of them, to legitimize the actions of the Sultan, one of the reasons, perhaps the most significant, was the fear of retaliation by the ruling class. The reforms were not carried out on the basis of a new ideology but were presented as necessary for the protection of religion and reason of state. 37 R.H. Davison, op. cit., p. 97; A. Hourani, “Minorities”, in B. Rivlin – J.S. Szyliowicz (edited by), op. cit., p. 212. According to Hourani this Edict engraved in the state relationship with non-Muslims, and in the 34

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(1800–1858), was not to introduce a parliamentary government. He maintained that the Ottoman Empire was not yet ready to take this step. 38 The Edict indicated the way in which the officers could be brought to trial, formally introduced a principle of equality of subjects before the law and sanctioned some rights against the Sultan, such as the personal security, property and honor. The Sultan renounced voluntarily his absolute rights and promised a universal application of justice. The Edict stated that conscription was mandatory and rationalized the system of taxation. Quoting the definition of Ubicini, Berkes defines the Edict as follows: A protocol was prepared by the Consultative Assembly (Majlis al-6KŠUć) which established the need to reform the old system on the basis of new laws; these could not be in contrast to the shariʿa and had to be based on the concept of inviolability of life, property and honor; but above all these laws would apply equally to Muslims and those belonging to other communities. 39

Despite the Edict of Gülhane being the first constitutional document, Namīq Kamāl (1840–1888), one of the most influential intellectuals during the period of reforms, was rather critical of the new features, deeming them unfit for Islam to revitalize and modernize the state. The WDQʲĪPćW had set aside the shariʿa in facilitating the creation of a form of government that was unchecked. The legislative function was embodied in deliberation councils made up by officials whose appointment derived from the will of the Sultan. Reforms aimed at broadening the independence of the judiciary were introduced. Between the governments of Maḥmūd II and his successor ʿAbd al-Majīd I (1823–1861), the Supreme Council for legal ordinances was later created, to which the Edict of Gülhane assigned

modification of the confessions system. Its main contribution was to create a more substantial equality. 38 B. Abu-Manneh, “The Islamic Roots of the Gülhane Rescript”, in Die Welt des Islams, vol, 34, no. 2, Brill, Leiden 1994, pp. 188–189. 39 N. Berkes, op. cit., 1964, p. 145; A. Ubicini, op. cit., p. 3.

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the task of propose laws and reforms. 40 This council, while acting as a Parliament, did not claim to embody a real representative assembly, especially since it was composed of officials appointed and not elected. The need for greater representation of the institutions began to be seconded in 1845, when two experiments were carried out: the establishment of an assembly, chaired by the Sultan, for the delegates of provincial councils who advocated the needs of local communities; the creation of a bicameral system, which became operational since 1868. In fact, by the Supreme Council was established the State Council, chaired by Minister Midḥat Pāshā (1822–1884) and composed of fifty members. This council became the epicenter of the constitutional ideas. This was the first government body to admit representatives of non-Muslim communities. 41 By this act, the Sultan agreed to share his legislative prerogatives, delegating them to this Council whose members were not appointed but elected by the people. The spirit of WDQʲĪPćW started at least five years before the adoption of the Edict of Gülhane, in 1834, with the creation of the Sublime Porte, known at the Western governments as the center of political Ottoman power. Also, the Sultan Maḥmūd II replaced the traditional office of Grand Vizir with that of the Prime Minister. The ministers were associated to departments based on the separation of powers. Since some prerogatives of the Grand Vizir were divided among the new offices, the Prime Minister was appointed to coordinate their activities and create a link with the sovereign. 42

N. Berkes, op. cit., p. 90. No laws, nor regulation could obtain legal effect, unless be approved by the Supreme Council. However, the same body was not allowed to send proposals to the Sultan, unless approved by the Cabinet. The Supreme Council met only once between 1861, the year of its inception, and 1867. 41 R.H. Davison, Reform in the ottoman empire 1856–1876, Princeton University Press, Princeton 1963, p. 28. See also: D.M. Reid, Lawyers and politics in the arab world, 1880–1960, Bibliotheca Islamica, Chicago 1981, p. 81. 42 In this way, the Sultan exinguished the Grand Vizir as a deputy assistant of an absolute sovereign and made easier his mutation in the Prime 40

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The ministers attained almost autonomous powers in domestic and foreign affairs, finance, in education and in the fields of trade, agriculture and industry. 43 The consultations between the ministers took place, from 1835 to 1836, in special gatherings called the Council of Ministers and that of Military Affairs. Moreover, to justify the fact that the offices were given for appointment rather than by election, the Sultan resorted to the Islamic doctrine of sovereignty, already used to legitimize reforms. Sovereignty was delegated by God to the Sultan who could decide to grant specific powers to councils or even to qualified individuals. 44 The reforms also modified the role of Shaykh al-,VOćP, depriving him of any temporal power. 45 Before the reform, the Grand Vizir administered the religious courts by prosecutors, called TćʘĪ ʰDVNDU; with the elimination of the latter, such courts were placed under the direct control of Shaykh al-,VOćP who became the highest authority of religious justice. The resolution of disputes which fell outside the jurisdiction of Islamic law was assigned to a court especially established by Maḥmūd II. To this end, in 1838, he adopted some new criminal provisions relating to responsibility of public officials and judges, and the procedure to start the process in case of abuse of power. All these reforms undoubtedly contributed to modernize Ottoman criminal law, which, until then, had been characterized by an excessive discretionality and lacked clear procedures. 46 In addition, this reform looked at imposing some limits on the actions of the bureaucracy, transforming the function of government in the modern idea of public service. 47 Minister, although not yet seen as a political officer in charge of his own decisions. 43 S. Mardin, The genesis of the young ottoman thought, Princeton University Press, Princeton 1962, pp. 150–151. 44 S. Mardin, op. cit., p. 154. 45 A. Ubicini, op. cit., p. 76. 46 N. Berkes, op. cit., p. 98. Specifically, severe penalties for crimes such as corruption and other forms of abuse, like the modern abuse of power, were introduced. 47 Ibid., p. 99. Despite the importance of these early forms of limitation of political power, some issues had not been resolved at all. Such

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The reform of Maḥmūd II consisted in the abandonment of the doctrine that through the adoption of the TćQŠQ, understood as temporal and codified law, the will of the sovereign was fully implemented. This was accompanied by the creation of a Parliament for the adoption of new laws. Furthermore, the contents of these laws were no more attached to the religion or the custom, but on what the reason pointed out as the most convenient solution for the common welfare. 48 According to Davison, the adoption of the first reforms was in-fit by events. The Edict of Gülhane was adopted at a time when Muḥammad ʿAlī (1769–1849) demanded independence of Egypt and threatened to fragment the Empire. The following Edict of Humāyūn coincided with the strong European diplomatic pressure as a result of the defeat in the Crimean War. Even the constitution of 1876 was announced as the best considered way to avoid external interference. 49 2.2. The HumćyŠn edict of 1856 The Edict of Humāyūn, adopted in 1856, tried, like that of Gülhane, to stem the foreign interference conducted to damage the Empire, such as in the case of the Crimean War (1856). With the adoption of this Charter the second phase of the overall reform process opened, especially through the work of the Council of WDQʲĪPćW responsible for drawing up proposals. 50 This organ also punishments imposed after judgment still remained for the most random and discretionary, in total circumvention of the principle of due process that at least formally had been introduced. On reforms of the Sultan in the education and clothing fields, see the same study on pp. 106–127. 48 N. Berkes, op. cit., p. 133. 49 R.H. Davison, “Turkish attitudes concerning christian-muslim equality in the nineteenth century”, in A. Hourani, P.S. Khoury, M.C. Wilson, op. cit., p. 66. On the relationship between religion and secularism during the era of the reforms see the same volume: S. Mardin, “Religion and secularism in Turkey”, pp. 352–353. See also: R.H. Davison, op. cit., 1963, p. 4. 50 S. Mardin, op. cit., 1962, p. 16; A. Ubicini, op. cit., p. 5. The text of this Edict had been annexed to the Treaty of Paris of 1856 which end-

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started to evaluate the performance of Ministers and to oversee the implementation of laws. 51 The two Edicts looked alike in content as in the adoption procedure which took place by imperial decree. 52 The Edict of Humāyūn did not refer to shariʿa nor to the customs: was repeated the promise to abolish land tax, fight against corruption, equality between Muslims and non-Muslims with specific regard to military affairs, and the elimination of capital punishment for apostasy. 53 As for the relationship between the confessions, there were immunities reintroduced, such as those guaranteed to minorities, freedom of worship, prohibition of defamation for any group, regardless of religion, race and language, and finally the guarantee of the rights of foreigners. According to Davison, in some respects the Edict of Humāyūn was more ambitious than that of Gülhane: the observation of the annual budget, the creation of the banking system and the exploitation of European capitals for development projects, the codification of the criminal laws and trade, reform of the prison system and the introduction of the mixed court system for cases involving individuals of different religion. The principle of equality, already established in 1839, was reaffirmed more strictly: Muslims and non-Muslims were given the same rights with regard to conscription, justice, taxation, admission to the civil and military schools, civil service, and in general all that adhered to the social respect. 54 The Edict of Humāyūn introduced the principle of representation in three ways: reorganizing the proed the Crimean War. France, Austria and Greece pushed to convince the Turkish government to adopt a series of reforms before the work of the Paris Conference so that Russia would have not affected in any way their nature. 51 R.H. Davison, op. cit., 1963, p. 52. 52 This Edict was also known as LʜOćʚćW ILUPćQĪ. N. Berkes, op. cit., 1964, p. 152. 53 A. Ubicini points out that this rule was rarely applied and did not qualify formally as a form of apostasy. A Christian or Jew who had embraced Islam, then retracting the decision and returning to their own religion, was put to death. Article seven of the Edict forbids any form of religious coercion. 54 R.H. Davison, op. cit., 1963, pp. 55–67.

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vincial councils so that the delegates were chosen and decisions inside were taken by free voting; reforming the judiciary for religious minorities, so that a few selected jurists could watch over their secular affairs; allowing members of minorities to take part in the Supreme Council of Judicial Ordinances. The non-Muslim representatives of the Supreme Council of the Ordinances Law, however, were notables already linked to the court of the Sultan, scaling, in fact, the value of this rule. All the religious confessions, between 1862 and 1865, adopted their own internal constitutions, called the QLʲćP, which included the principle of representation. 55 2.3. The laZ of the Tunisian State 1861 The Law of the Tunisian State or the Tunisian constitution of 1861 was adopted as part of a reform of the country, formally province of the Ottoman Empire. The main aims were, even then, to strengthen the control of peripheral areas than and prevent the decline of the dynasty in power, targeted by the colonial powers. 56 The occasion to grant the constitution was the escalation of tensions between the Jewish minority and the rest of the Muslim population. This gave impetus to the adoption of some rules to regulate the relations between the different communities. 57 In 1857 the ʰ$KGDO-ĩPćQ (Charter of the faith) was promulgated, in addition to protecting the physical integrity of the people and their assets, providing for greater equity, the protection to individuals, their property, establishing equality in taxation, and with regard to miliR.H. Davison, op. cit., p. 101; U. Heyd, op. cit., p. 33. N. Coulson, $ KLVWRU\ RI ,VODPLF /DZ, Edinburgh University Press, Edinburgh 1964, p. 150. 57 N. Brown, “Regimes reinventing themselves: constitutional development in the arab world”, in S. Arjomand (edited by), Constitutionalism and political reconstruction, Brill, Leiden 2007, p. 49. The constitution introduced modest limits to political power. Other democratic demands were not covered and rather were carefully avoided. The Tunisian Constitution afforded only a mere rationalization and bureaucratization of public authorities, but their limitation remained an ideal rather than real. In this respect, therefore, the adoption of this document has not been inspired by real constitutionalist purposes but rather by internal needs. 55 56

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tary service. The same document established the Grand Council, a body designed to ensure that the country was administered in compliance with the principle of legal certainty and good governance (especially for taxation). 58 However, this council was politically unaccountable to the people as its members did not receive any real mandate nor acted as representatives. Despite the strong European influence, the Charter retained an Islamic terminology, identifying, for example, the members of the Grand Council as ahl al-ʚDOOZDpOʰDTG. The first two sections contained provisions regarding the sovereign and the royal family, then the cooperation with ministers and, by implementing the Islamic doctrine, granted the people the right, supposedly, to suspend the loyalty given to the sovereign in case of his reprehensible conduct. The third chapter contained the rules relating to the Grand Council, determining its administrative and judicial functions and the possibility to remove its members. The fifth chapter concerned the authority of ministers, distinguishing three main duties: the areas where the minister could act individually, issues that required the agreement with the Sultan and finally decisions that required the consent of the Council to be taken. Chapters six and seven concerned the election of the Grand Council: one-third of its members was formed by ministers and government officials, and the remaining part was made up of notables, chosen directly by the sovereign and subject to the approval of ministers. The main tasks of this body concerned the protection of the rights of the people, and the application of the principle of equality. Further, the Council could rule on legislation on financial matters prior to approval. The twelfth chapter included a catalogue of freedoms and rights guaranteed to all people, regardless of the confession. The list did not include the freedom of expression or association. There were instead proclaimed the rights to the inviolability of the person, honor and the protection of possessions. 59 Military service remained compulsory for all subjects.

58 59

N. Brown, op. cit., 2002, p. 16. N. Brown, op. cit., 2002, p. 18.

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Finally, the thirteenth chapter extended to foreigners the rights granted to the nationals, so long as they came from countries with which good diplomatic relations were in place. The constitution did not attempt to create a new political system based on Islamic sources. But it was an experiment, short of breath, that aimed at making the Sultan responsible before the shariʿa and a body of notables, erected in protecting the interests of the community.

3. THE FOUNDING FATHERS OF LIBERAL

CONSTITUTIONALISM IN S UNNĪ AND SH Ī ʰĪ LEGAL THOUGHT

The reforms outlined above, as well as the adoption of the first constitutional texts, were nourished by a long process of theoretical development that arose from the contact with Europe. These reforms were sustained by intellectuals of different backgrounds but who shared a common need for innovating the political modules in use in the Muslim world. In a sunnī area this need was felt both by the class of bureaucrats and statesmen, such as Aḥmad ibn Abī Ḍiyāf (1804–1874) and Khayr al-Dīn al-Tūnisī (1822–1890), but also by members of salafiyya, a reformist movement that had in Muḥammad ʿAbduh (1849–1905), Jamāl al-Dīn Asad Ābādī, better known as al-Afghānī (1838–1897), ʿAbd al-Raḥmān al-Kawākibī (1849–1902) and Muḥammad Rashīd Riḍā (1865–1935) the main performers. 60 They, unlike the first, covered only in the broadest sense the constitutional issues since the renewal of religion was their first aim. These two groups of intellectuals, however, landed to the same conclusions, arguing the need to adopt the instruments for the limitation of political power present in the European legal systems, provided they do not conflict with Islam. In the shīʿī context, the beginning of modernization is associated with the qajarī prince ʿAbbās Mīrzā (1788–1883) who facing the challenges of the Russian Empire and the Ottoman Empire, found necessary to initiate a series of reforms starting from the S. Mardin, “The just and the unjust”, in Daedalus, vol. 120, no. 3, the MIT Press, Cambridge 1991, p. 122; W. Ende – P. Shinar, “Salafiyya”, in Encyclopaedia of Islam. Second Edition, Brill, Leiden 2012. 60

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military sector. Like what was happening in the Ottoman state, new means of administration and taxation, a centralized system of government and a strong bureaucracy were introduced. The adoption of a constitution represented the final act of these reforms. 61 The opposition of certain scholars was much stronger than in the sunnī world, since the reforms were seen as contrary to Islam. Nevertheless, during the government of Amīr Kabīr (1807–1851), the first Council of State was established, composed of six ministers and a president. 62 Not unlike the sunnī context, even among the shīʿa scholars the diffusion of constitutional ideas is due to a circle of notables of European culture, including Mīrzā Fatḥ ʿAlī Akhund-Zādah (1812– 1878), Yūsuf Mustashār al-Dawla (-1895), Malkam Khān Nāẓim alDawla (1833–1908). They, close to the ideas of the French Enlightenment, advocated the adoption of the principle of separation of powers and the notion of freedom, completely excluding the Muslim premises. Based on secular premises, they believed Islam was incompatible with the European political doctrines. 63 Despite the A. Hairi, 6KĪʰĪVPDQG&RQVWLWXWLRQDOLVPLQ,UDQ$VWXG\RIWKHUROHSOD\HG by the Persian Residents of Iraq in iranian politics, Brill, Leiden 1977, p. 11. Between 1811 and 1815 in Persia was adopted a QLʲćP MDGĪG to reform the military system. 62 J.H. Lorentz, “Iran’s great reformer of the nineteenth century: an analysis of Amīr Kabīr’s reforms”, in Iranian Studies, vol. 4, no. 2/3, Taylor & Francis, Abingdon 1871, pp. 85–103; A.K.S. Lambton, “The impact of the west on Persia”, in ,QWHUQDWLRQDO$IIDLUV, vol. 33, no. 1, Blackwell Publishing, London 1957, pp. 15–16; S. Bakhash, “The evolution of qajar bureacracy: 1779–1879”, in Middle Eastern Studies, vol. 7, no. 2, Taylor & Francis, Abingdon 1971, pp. 139–168; M.B. Sanjabi, “Rereading the enlightenment: Akhunzada and his Voltaire”, in Iranian Studies, vol. 28, no. 1, Taylor & Francis, Abingdon 1995, pp. 39–60. 63 Regarding these scholars, see: A. Hairi, op. cit., pp. 25–54; M. Bayat, “The concepts of religion and government in the thought of Mirza Aqa Khan Kirmani. A nineteenth-century persian revolutionary”, in International Journal of Middle East Studies, vol. 5, no. 4, Cambridge University Press, Cambridge 1974, pp. 381–400; H. Algar, 0ĪU]ć 0DONXP .KćQ $ biographical study in iranian modernism, University of California Press, Berke61

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undoubted influence of these authors, their thinking is not considered in this chapter, and only the constitutional doctrines by scholars with a background in Islamic law will be taken into account. In particular, the ideas of Āyāt Allāh Mīrzā Muḥammad Ḥusayn alNāʾīnī (1860–1936) and the Shaykh Faḍl Allāh Nūrī (1843–1909) are discussed here. The first one was influenced by the sunnī doctrines and, through his work, produced a further extension of the institute of the ZLOć\D and the inclusion of constitutionalism into the imāmī political theory. 64 3.1. Aʚmad Ibn AbĪ ʗiyćf: analogies betZeen the Caliphate and the constitutional government Aḥmad Ibn Abī Ḍiyāf was the author of a history of Tunisia entitled ,WWDʚćIDKODO-]DPćQEi-DNKEćUPXOŠN7ŠQLVZD-ʰDKGDO-ĪPćQ. 65 In the introduction the author, relying on arguments of Islamic law, develop a theory of government that warrants the opening to Western constitutional models. After presenting the sunnī theory of the Caliphate, the author compares it with other models of government, including the Republic. The main feature of the latter is that provides limits to the political but exclusively of rational origin; The Caliphate, however, sets limits to the action of government that originate both from reason and by revelation. These are the only instruments that can lead to a constitutional government. Absolute rule, finally, if it is demanded by man is unjust and illegitimate, since it is rightfully reserved only for God. It follows that both the Republic and the government based on shariʿa are positive forms of organization of the state but while the first is typical ley 1973; A.K.S. Lambton, “Some new trends in islamic political thought in late 18th and early 19th century Persia”, in Studia Islamica, no. 39, Maisonneuve & Larose, Paris 1974, pp. 95–128. 64 M. Bayat, Iran’s first revolution, Oxford University Press, Oxford 1991, p. 256. 65 L.C. Brown (edited by), Aḥmad Ibn Abī Ḍiyāf, Consult them in the PDWWHU $ QLQHWHHQWK-century islamic argument for constitutional government, The University of Arkansas Press, Fayetteville 2005; Aḥmad Ibn Abī Ḍiyāf, ,WWDʚćIDKODO-]DPćQEL-DNKEćUPXOŠN7ŠQLVZD-ʰDKGDO-ĪPćQ, Kitābat al-Dawla li’l-Shuʾūn al-Thaqāfiyya wa’l-Akhbār, Tunis 1963.

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of Europe and the United States of America, the second is founded in the GćUDO-,VOćP. As the only system of government based on shariʿa ended thirty years after the death of the Prophet, the constitutional government is the only model that comes close to that ideal. The shariʿa is certainly considered the embodiment f absolutism and the guidance for the realization of a perfect society. 66 The constitutional system, in fact, was imported from the Western legal tradition and so in theory it is not necessary or functional to the realization of the Islamic polity. In order to justify its adoption, the scholar recourses to reason, arguing that reason and revelation are mutually reinforcing. The government is a necessity for all men especially those who belong to the Islamic community, since they bear the obligation (IDUʘ NLIć\D) to realize its existence. 67 Not to constitute any form of government is, indeed, a loss, therefore, the ahl al-ʚDOO ZDpO-ʰDTG must decide about this task. 68 The needs for a government takes over from the consent of the first Muslims, but can be explained also by the need to have an authority for men gathered in society to secure a peaceful coexistence. That authority is created by God to order the good and forbid evil and to defend the weak from oppression. 69 The person delegated to fulfill this function, as in the theory of the Caliphate, must possess qualities such as knowledge and justice and is considered successor of the Prophet. The governor is required to pay obedience, despite the cornerstone of Islamic political doctrine, the practice of enjoining good and forbidding evil. This is an action which can be carried out in different ways, for example using sermons and discussion. The sermons of ʰXODPćʯ L.C. Brown (edited by), op. cit., p. 11. L.C. Brown (edited by), op. cit., p. 16. 68 L.C. Brown (edited by), op. cit., p. 41. The author believes that the type of Islamic government must be defined by the electors, since they are representatives of the whole community and the most suitable for this purpose. 69 Ibid., p. 42. See also: N. Sraieb, “Des droits de l’homme et de l’État de droit dans la pensée politique tunisienne du XIX siècle”, in A. Mahiou (edited by), L’État de droit dans le monde arabe, CNRS Éditions, Paris 1997, p. 93–94. 66 67

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may activate a resistance to an unjust ruler without necessarily the rebellion being declared. 70 The absolute government infringes Islamic law and usurps the role of God, but is also contrary to reason since it resorts to coercion and violence, while the task of the ZDOĪ is to put a limit to human actions. 71 The governor must seek cooperation from the ministers but in the case of a tyrant, he will rule only over executive ministers, subservient to his will and unable to oppose him. The Sultan is formally required to maintain conduct that is in conformity with the terms stipulated by the oath, with the result that if he breaks the promises, the people can decide on his deposition. If, after having sinned, the Sultan returned to behave close with the terms of the contract, obedience back to him is due. The breach of the contract causes the elimination of the requirement of justice and puts the community in a position to grant the title to another candidate. However, sometimes the people believe that the monarchy has lost legitimacy, rejecting the family rule and opening the road to the onset of a republican regime. At the end of the introduction, the author comments on the Tunisian constitution of 1861. The political and social conditions of Tunisia deteriorated until the establishment of a government, to which the Constitution imposed legal limits. The latter type of government does not coincide with the Caliphate, but it prevents tyranny and provides some guarantees for the community, since political power is placed under constraints arising both from reason and from shariʿa. 72 The ruler who loves the people, adopts a constitution, reducing his inherited powers. The constitution however remains linked to the contingencies where it is made and, the author explains, in the original Islamic government it was represented by the Qurʾān and the sunna. However, a constitution is necessary because it falls between the just laws, which, after being discussed and adopted by an Assembly, must be implemented by the sovereign. His collaborators must be chosen from those who are more suitable to fill the religious and political offices. The head of governL.C. Brown (edited by), op. cit., p. 49. L.C. Brown (edited by), op. cit., p. 53. 72 L.C. Brown (edited by), op. cit., p. 75. 70 71

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ment, the Sultan, has the duty to declare a state of war and conclude peace treaties, is the commander of the troops and must obtain his consent before taking any military action, even if lawful. As to the content of the TćQŠQ, it can draw from the explicit foundation of revelation; from the systematic interpretation of the shariʿa and finally from VL\ćVDVKDUʰL\\D. The latter includes the rules that aim at areas that have not been defined by the revelation, contributing to the pursuit justice and the elimination of corruption. Therefore, whenever a public interest that is not prohibited by law, or in contrast with it, is founded, it is compulsory to follow it. 73 Finally, the author deals with the principle of responsibility in contemporary European doctrine. There the assemblies may address questions to ministers about their work, even oppose to them, and to the absolute ruler. The assembly may cause, in fact, the resignation of the ministers when they are acting in a manner contrary to the constitution, since the respect due to fundamental law is more important than that paid to the government. 3.2. Khayr al-DĪn al-TŠnisĪ and the Islamic principles for a limited government Khayr al-Dīn al-Tūnisī was author of the treatise entitled $TZćPDOmDVćOLN IĪ mDʰULIDW ʚDZćO DO-mDPćOLN, translated into French in 1868 and soon after in Turkish. The ideas of this author had great diffusion through his conciliatory attitude between the Islamic and Western legal tradition, compared to other members of the Young Ottomans. 74 Al-Tūnisī assumed the office of Grand Vizier for a According to the PćOLNĪ al-Azraqī, the power of the infidel Sultan who implements a fair policy is more durable than that of the just Sultan but oblivious to apply the VL\ćVDVKDUʰL\\D. The legitimacy of the ruler is not connected to the VKDUĪʰD but to the application of a policy in accordance with it. This position, expressed by Ibn Taymiyya and Ibn Qayyim alJawziyya, is also underlined by the modern scholar Yūsuf al-Qaraḍāwī. 74 Khayr al-Dīn al-Tūnisī, $TZćP DO-0DVćOLN IĪ 0DʰULIDW ʙDZćO DO0DPćOLN, Dār al-Tūnisiyya li’l-Nashr, Tunis 1974; L.C. Brown (edited by), The surest path. The political treatise of a nineteenth-century muslim statesman, Harvard University Press, Cambridge 1967. See also: Réformes nécessaires aux États musulmans, Imprimerie Administrative de Paul Dupont, Paris 1868; 73

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short period, between 1864 and 1868, and during the rule of ʿAbd al-Ḥamīd II (1842–1918). His activity in Istanbul, however, was short because of the positions he took with regard to the powers attributed to the Prime Minister that, in his view, was to not only to assist the Sultan. The author begins the work by arguing that the shariʿa governs the issues related to earthly matters, the solution of which must be anchored to the religion. 75 In this regard, some reforms designed to increase the adherence to the spirit of the time are needed. 76 The proper application of Islamic principles allows the supremacy of Islamic model on others, such as those in Europe. However by them, especially by the French one, it is possible to draw some ideas that can also be useful for the Ottoman Sultans. 77 In Europe, for example, in order to limit the absolute power, there are many instruments, like the press or the assemblies that kept watch over the government. 78 Likewise, the Ottoman rulers must ensure that the ahl al-ʚDOOZDpO-ʰDTG are involved in political questions enabling them to share the state administration with responsible ministers (ZD]Īr mubashir), those ministers who personally are liable for acts undertaken in the exercise of their office. 79 In the author’s view, the pillars of the state are: the king, the ministers and the electors. 80 The first must be learned and well disG.S. Van Krieken, .KD\Ual-Din et la tunisie (1850–1881), Brill, Leiden 1976; N. Brown, op. cit., 2002, pp. 19 and 164; B. Badie, op. cit., pp. 75–76. 75 Khayr al-Dīn al-Tūnisī, op. cit., p. 83. 76 L.C. Brown (edited by), op. cit., p. 72. 77 Ibid., p. 73; S. Mardin, op. cit., 1962, p. 387. 78 Khayr al-Dīn al-Tūnisī, op. cit., p. 102; L.C. Brown (edited by), op. cit., p. 84. 79 The expression ZD]ĪU PXEDVKLU indicates the minister responsible for the acts undertaken. The principle of the responsibility of ministers is the most characteristic feature of the so-called liberal constitutionalism which al-Tūnisī was inspired by. 80 L.C. Brown (edited by), op. cit., p. 86. Si veda: L.T. Darling, “Islamic empires, the Ottoman Empire and the circle of justice” in S. Arjomand (edited by), Constitutional politics in the middle east with special reference to 7XUNH\,UDT,UDQDQG$IJKDQLVWDQ, Hart Publishing, Portland 2008, p. 28.

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posed towards the public welfare. The same characteristics are to be held by the ministers. The ability to operate the reforms derives by the possibility for Muslims to emulate non-Muslims for those actions that are not in conflict with the shariʿa, therefore, considered lawful. The heart of the reforms must consist, however, in making ministers responsible, being sure that everyone can oversee the work of the others. Since in the Islamic system, sovereignty belongs to God only, the scholars and the ministers have the task of checking that the manmade law (TćQŠQ) does not violate the shariʿa, resulting in a guide for the Sultan. 81 The European idea of freedom takes two distinct meanings. The first one is related to personal freedom understood as the freedom to dispose of themselves and the right to protection of life, honor and property. This kind of freedom implies equality before the law without distinction and equates governed and governors. The second idea of freedom has taken on in Europe and is linked to the political discourse. It affects the ways in which the governed participate in the management of the state. The involvement of people is not exercised directly, but through a small group of representatives who compose the Chambers of Deputies. Applying this pattern to the Ottoman Empire, a similarity between the members of the Chambers and the ahl al-ʚDOOZDpO-ʰDTG could be established, though the latter are not elected. This difference, however, could be overcome because in Islamic law, the affairs connected to government are part of those obligations which may be delegated (IDUʘNLIć\D). On this point writes the scholar: When some members of the community assume this responsibility, then the obligation ceases to become a burden on the rest of the believers. When this group [the elected] is found, the responsibility becomes a strictly limited obligation. 82

L.C. Brown (edited by), op. cit., p. 77. The author also quotes a passage of the ḥanafī jurist Ibn ʿĀbidīn from his Radd al-PXʚWćUʰDOćDO-durr al-PXNKWćU. Here the Syrian jurist said that may not derive any damage from the imitation of those costumes related to the welfare of believers. 82 L.C. Brown (edited by), op. cit., p. 161. 81

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Considering the political principle to order the good, al-Tūnisī has made use of the distinction between IDUʘNLIć\D and IDUʘʰD\Q to shift the participation in public affairs from the second domain to the first, so as to create a similarity with the representative system. 83 The countries that adopted this kind of governance, including freedom of the press and adopted a constitution, are those that show the greatest progress in economic and technological fields. Thus, the jurist concludes, it is necessary to implement the WDQʲĪPćW, intended as synonym of constitutionalism. The Europeans understood that entrusting a great power, if not unlimited, to a unique sovereign is the source of ruin for the state. In fact, they have found it necessary to appoint the representatives of the people providing them with the responsibility of advising the government. 84 The Europeans also codified the laws, dividing them into two groups: laws governing the relations between the state and individuals and laws that concern the relations between people. 85 The principle of ministerial responsibility (PDVʯŠOL\\D DOZX]DUćʯ) is also taken from the West. It implies that the ministers are chosen directly from the Parliament, and are responsible in front of the governor. In the European tradition, the king is not responsible under the principle that “he can do no wrong”, and given the divine authority he owns. The prerogative to administrate not only belongs to the sovereign but the implementation of the policies is also shared with the ministers. Furthermore, the ministers cannot remain in office if they do not enjoy the confidence of the people as expressed through the parliamentary majority. The possibilities for the ministers to remain in office are directly related to the positive feedbacks that their work receives by the people. A. Belkeziz, The State in contemporary islamic thought, I.B. Tauris, London 2009, p. 14. 84 Although not explicit, the reasoning that has legalized the introduction of the constitution in the Islamic legal system was the public utility or PDʜODʚD. What is not expressly forbidden by God and, at the same time, is capable of producing an enjoyment for the community, not only must be adopted but it is considered proper for the purpose of maximizing the public welfare. 85 L.C. Brown (edited by), op. cit., p. 171. 83

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With these words, al-Tūnisī illustrated the secret wealth of European nations which were, at that time, the most advanced in the Mediterranean basin. He tried to convince the Ottoman public opinion that the reforms were not in contradiction with the spirit of shariʿa. 86 Al-Tūnisī argues that the principle of ministerial responsibility is not different from that provided by Islamic law where the ZD]ĪU dispenses advice to the Caliph, without expecting anything in return. The same way, the idea of the Parliament itself as the extension of the VKŠUć (the deputies coincide with the members of the ahl al-ʚDOOZa’l-ʰDTG), 87 is an evidence of the convergence of the Islamic spirit with the West. 88 These conclusions comes from a new methodology called “judicial interpretation” that alTūnisī learns from ḥanbalī school: the revelation is of divine origin, and its aim is the achievement of well-being in this and in the other world. What is not prohibited explicitly can be adopted for the pursuit of this goal. Inspired by the doctrine of Ibn Qayyim alJawziyya, disciple of Ibn Taymiyya, al-Tūnisī sustained that a government must not be in opposition to the explicit principles of Islamic law, nor to what can legitimately deduced from them. At the same time, the PDʜODʚD must serve as the foundation of politics. Rather what is functional to the general interest is considered in accordance with the spirit of the VKDUĪʰa. The corollary to this ḥanbalī doctrine is that the change in circumstances leads to the change of what is good and necessary for the society. Thus, the creation of A. Hourani, $UDELFWKRXJKWLQWKH liberal age 1798–1939, Oxford University Press, Oxford 1970, p. 88. 87 Ibid., p. 90. The reforms which al-Tūnisī had in mind were mainly the establishment of a government based on ministerial responsibility, the parliamentary institution, freedom of the press, habeas corpus, and political participation. 88 A. Hourani, op. cit., p. 91. Liberal constitutionalism which erupted in Europe and North America in the XIX century, which influenced alTūnisī, developed as a reaction to the old regime. Freedom of the press, habeas corpus, and political participation were accepted because expression of new political subjects. However, the liberal philosophy shared with that of the restoration the fear for anarchy which could be the result of a lawless egalitarian spirit. 86

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new rules is deemed necessary. In this context, the European liberal tradition seems to offer the most appropriate tools. 89 3.3. Islamic constitutionalism in the XIX century s alafī thought Muḥammad ʿAbduh was one of the pioneers of the extensive reform movement (LʜOćʚ) that invested Islam during the nineteenth century. 90 His thoughts revolved around the need to reinterpret the sources of law through the use of interpretative criteria, such as analogical reasoning, the preference of the jurist and public welfare. 91 According to ʿAmmāra, the work of this intellectual spun around three main points: religious reform (LʜOćʚ DO-GĪQ); linguistic

The ideas of Tūnisī were advanced by a pamphlet published in 1731 by Ibrāhīm Müteferrika (1670–1745), with the title of 8ʜŠODO-ʚLNćPIĪ QLʲćP DO-umam. This work, in turn, quotes the text of Ḥasan Kāfī alAqhisari (1544–1616). Müteferrika’s study emphasized the need for the Ottoman Empire to adopt Western forms of government. The author distinguished three forms of government: monarchy characterized by the simple obedience by the people; the aristocracy based on the government of dignitaries; democracy in which the people rules and seeks to overthrow the tyranny. Ottoman decline is not attributable to traditional laws or VKDUĪʰa, argues the author, but to the ignorance of the ruling class. It is possible that this writer, about which little biographical information are known, was familiar with the thought of John Locke (1632–1704), his contemporary and his companion in the Unitarian faith. See also: N. Berkes, op. cit., pp. 42–54; Ḥasan Kāfī al-Aqhisari, 8ʜŠODO-ʚLNćPIĪQLʲćP al-ʰćODP, al-Jāmaʿa al-Urduniyya, ʿAmmān 1986. 90 P.J. Vatikiotis, $UDE DQG UHJLRQDO SROLWLFV LQ WKH 0LGGOH (DVt, Croom Helm, London 1984, p. 1; N.N. Ayubi, Political islam. Religion and politics in the arab world, Routledge, London 1991, p. 57. 91 M. ʿAmmāra (edited by), al-,PćP0XʚDPPDGʰ$EGXK0XMDGGLGDOGXQ\ć EL-WDMGĪG DO-GĪQ, Dār al-Shurūq, Cairo 2009, p. 45; P.J. Vatikiotis, “Muhammad Abduh and the quest for a muslim humanism” in $UDELFD, vol. 4, no. 1, Brill, Leiden 1957, pp. 55–72. 89

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reform (LʜOćʚOXghDZĪ); political reform (LʜOćʚVL\ćVĪ). 92 The latter was considered instrumental to the realization of the first two. According to Vatikiotis, Muḥammad ʿAbduh rejected any possibility of political change accomplished through the simple emulation of Europe, for example through the adoption of the constitution, requiring instead that it was the result of the conviction gained in this respect by the society. These ideas are expressed in an article published in al-ʰ8UZDDO:XWKTć and titled al-8PPD ZD-VXOʞD DO-ʚćNLP DO-mustabidd. 93 Here ʿAbduh emphasizes that the community, at the time when he writes, was not able to express its will and was forced to conform to that of the governor, equated to the law. 94 In an article published in the journal al-0DQćU, however, the author justified the Ottoman transformations that were designed to incorporate the Western technologies. Not unlike al-Tūnisī, ʿAbduh believed that, due to the lack of any provision in the sources of Islamic law prohibiting the signs of modern civilization, their acquisition was lawful to achieve the benefits of the advanced nations (al-umam al-murtaqiyya). 95 To this respect, the Ottoman government had to resort to tools such as equity, public interest and the principle of justice by resorting to reason. Rational thinking, in fact, is the tool that leads to real faith. In addition, the scholar argued that if there was a conflict between reason and the law, the first must prevail. Finally to the VKDUĪʰa is necessary to restore the original Islamic value, to set a limit to the The first coincides with the liberation of the intellect (WDʚUĪUDO-fikr min qayyid al-WDTOĪG). The second, the linguistic reform, refers to a type of intellectual and cultural reform in the Muslim world. 93 Jamal al-Din al-Afghānī, Muḥammad ʿAbduh, al-ʰ8UZDDO-:XWKTć, Markaz al-Buḥūth al-Islāmiyya, Qom 1988, p. 171. 94 In addition to using Islamic legal lexicon, the scholar clearly recalls the Latin maxim, typical of the absolute political systems, quod principles placuit, legis habet vigorem. This was one of the cornerstones of the absolutist systems that liberal constitutionalism sought to stem. Jamal al-Din alAfghānī- Muḥammad ʿAbduh, op. cit., p. 171; S.G. Haim, $UDE QDWLRQDlLVP$QDQWKRORJ\, University of California Press, Berkeley 1962, pp. 15–19. 95 O. Arabi, Studies in modern Islamic law and jurisprudence, Brill, Leiden 2001, p. 23–35. 92

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immutable rules and determine a set of new rules in accordance with human interest. The thought of ʿAbduh swiveled around two main pillars: the idea of the centrality of religion in the life of nations and the need to introduce new institutions emulating the West and his attitude to the modernity. Such a tendency would bring Islam out from its lethargy, provided that it would forego 7DTOĪG. 96 In an article about the meaning of the VKŠUć, ʿAbduh, not only outlined the absence of conflict between Islamic law and the representative institutions, but he came to support the idea that between Parliament and the VKŠUć there was a correspondence. 97 The personality of ʿAbduh is, in some ways, inseparable from that of Jamāl al-Dīn al-Afghānī, regarded as a founding member of the salafiyya and one of the architects of the Persian revival, although he was never directly involved in the constitutional debate. On this point, his ideas are not entirely clear and it seems he felt certain institutes of European constitutionalism, including the principle of representation, as worthless. 98 His writings, especially some articles, focuses on the notion of despotism but he never proposed the alternatives to government. In an article entitled Falsafa al:DʞDQ al-Afghānī strongly blamed the political fragmentation of the Muslim community, since it had been created to stay united and

O. Amin, “The modernist movement in Egypt”, in R.N. Frye (edited by), op. cit., p. 166; Id, “Muhammad Abduh. Islamic modernist”, in B. Rivlin – J.S. Szyliowicz (edited by), op. cit., p. 161. 97 M. Khadduri, The islamic concept of justice, The John Hopkins University Press, Baltimore, pp. 60–61. Z. Badawi, 7KH UHIRUPHUV RI (J\SW $ critique of al-$IJKDQL ʰ$EGXK DQG 5LGKD, The Open Press, Slough Berks 1976, p. 14; E. Kedourie, $IJKDQL DQG ʰ$EGXK $Q HVVD\ RQ UHOLJLRXV XQEHOLHI and political activism in modern Islam, Frank Cass & Co. Ltd., London 1966.; Z. Badawi, op. cit., p. 15 98 A. Hairi, op. cit., p. 52. This scholar also reports the views according to which the purpose of al-Afghānī was the building of a republican and constitutional government. He even drafted a constitution for Nasir al-Din Shah al-Qajari (1831–1896) which earned him exile from the Persian kingdom. 96

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living in a single space. 99 The intellectual work of al-Afghānī was straining to achieve cohesion among believers through their religious sentiment and the pan-Islamic doctrine, combined with antiimperialist positions. The activism to raise the unity of the umma and to achieve its internal reform were the hallmark of this intellectual. To achieve these goals, al-Afghānī outlined the importance of having a Muslim governor, defender of the VKDUĪʰa. 100 The modernist ʿAbd al-Raḥmān al-Kawākibī wrote a long pamphlet entitled ʝDEćʯLʰDO-LVWLEGćGZD-PDʜćULʰDO-LVWLʰEćG in which he analysed the nature of tyranny. This consists in the absence of independence of thought (LVWLTOćO DO-UDʯ\) and the rights of individuals. 101 There are different types of tyranny: one is political and is proper of the absolute government (ʚXNP PXʞODT) and the despot (jDEEćU). The government, however, qualifies as fair only if it is responsible (PDVʯŠO), limited (muqayyida) and constitutional (GXVWŠUL\\D). The absolute government, whose tyranny is the main feature, is that form of government in which the principles of the VKDUĪʰa are opposed and obstructed. The absolute monarch seizes power by force and rules on the basis of his own will rather than according to the law. On the contrary, the sovereign who enjoys a limited power is elected, shares decision-making with other institutions, and recognizes the separation of powers. In many constitutional systems, the governor is responsible before the holders of legislative power who, in turn, are accountable to the people. 102 M.B. al-Makhzumi, .KćʞLUćW DO-$IĠćQĪ ĆUć ZD-DINćU, Maktabat alShurūq al-Dawliyya, Cairo 2002, p. 85. 100 K.A. Faruki, The evolution of islamic constitutional theory and practice, National Publishing House, Karachi 1971, pp. 134–135. 101 ʿAbd al-Raḥmān al-Kawākibī, ʝDEćʯLʰ DO-LVWLEGćG ZD-PDʜćULʰ DOLVWLʰEćG, Dār al-Nafāʾis, Beirut 2006. See also: A. Hourani, op. cit., p. 272; S.G. Haim, “Alfieri and al-Kawākibī”, in Oriente Moderno, vol. 34, no. 7, Istituto per l’Oriente, Roma 1954, pp. 321–334; Id, “Blunt and alKawākibī”, in Oriente Moderno, vol. 35, no. 1, Istituto per l’Oriente, Roma 1955, pp. 132–143. 102 It should be noted that the author does not refer explicitly to the community as the holder of sovereignty. Although his reasoning indicates the people as the sole judge of political life, it is not sovereign. Also al99

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Regarding the relationship between tyranny and religion, the author illustrates how the two factors are interconnected and above all that the political tyranny derives from the religious, since religion and politics cooperate to guide humans. The religious reform therefore facilitates the way for political reform. Islam contains in itself the principles for a government based on political freedom, a third way between democracy and aristocracy. Religious authority is exercised through the revealed law which is valid in every era. In order to enforce VKDUĪʰa the community must be made a part of the political choices since the power is placed in his hands. 103 The Sultan is accountable to believers since the government inspired by Islamic principles is based upon a kind of aristocratic consultation (al-VKŠUć DO-DULVWŠTUćʞL\\D). 104 In the last chapter, al-Kawākibī developed some findings about the ways to abolish the tyranny, defined as: that form of government whose relationship with the community is not based on an effective bound, which is protected by the principle of the immediate enforceability of the law. 105

Tyranny does not offer any guarantee, since the authority is not attached to religious and ethical principles, such as justice and the public interest. The community must be understood as the people (shaʰb) bound together by religion, language, homeland (ZDʞDQ), that shares rights and a political framework in which each individual is Kawākibī traces a gradual scale between different types of tyranny and argues that the worst form is given by the absolute rule (ʚXNP DO-fard alPXʞODT), the hereditary monarchy (ZćULWKDO-ʰDUVK), the military dictatorship (TL\ćGD DO-jaysh) and the government of who appropriates the religious power (al-ʚćʯL]ʰDOćVXOʞDGĪQL\\D). 103 Ibid., pp. 51–52. See also: E. Tauber, “Three approaches, one idea: religion and State in the thought of ʿAbd al-Raḥmān al-Kawākibī, Najib ʿAzuri and Rashid Rida”, in British Journal of Middle Eastern Studies, vol. 21, no. 2, Taylor & Francis, London 1994, p. 192; R. Raz, “Interpretations of Kawakibi’s thought, 1950–1980s”, in Middle Eastern Studies, vol. 32, no. 1, Taylor & Francis, London 1996, pp. 179–190. 104 ʿAbd al-Raḥmān al-Kawākibī, op. cit., p. 56. 105 Ibid., p. 173; A. Belkeziz, op. cit., pp. 37–39.

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entitled to express his opinion. 106 Thus, the government must be taken as an authority placed in the hands of a man, to protect the general interest and consists of a delegation to administer the will of the community and its general affairs. The removal of tyranny, therefore, is possible only if the government wins the trust of the community, by the use of UDʯ\ and employing the ijWLKćG. 3.4. The birth of Islamic constitutionalism in the shĪʰĪ jurisprudence Faḍl Allāh Nūrī was one of the major sources of influence for the Persian constitutionalist movement. Paradoxically he ended early with abjure the ideas of limited government (ʚXNŠPD PDVKUŠʞD), considering them contrary to revelation. The creation of governance structures that have no foundation with Islamic law, according the scholar, is unlawful and creates confusion among the sources of authority. 107 Under this light, the introduction of the European system of government was taking place without considering the significant differences between people. 108 According to Faḍl Allāh Nūrī, the Persians by virtue of their Islamic faith possessed the VKDUĪʰa that could not be ignored. In the absence of links between constitutionalism and imāmī jurisprudence, the laws made by any assembly may not be binding and must not be applied. Moreover, the jurist pointed out that the consultative government existed within Islam, being unnecessary to look to the examples of other nation states. Any parliament must be Islamized following the parameters of the VKDUĪʰa:

ʿAbd al-Raḥmān al-Kawākibī, op. cit., p. 173. V.A. Martin, “The anti-constitutionalist argument of Shaikh Fazlallah Nūrī”, in Middle Eastern Studies, vol. 22, no. 2, Taylor & Francis, Abingdon 1986, p. 181. 108 S. Arjomand, “Shariʿa and Constitution in Iran: a historical perspective”, in A. Amanat – F. Griffel (edited by), Islamic law in the contempoUDU\ FRQWH[W 6KDULʰD, Stanford University Press, Stanford 2007, p. 158; A. Hairi, “Shaykh Fazl Allāh Nūrī’s refutation of the idea of constitutionalism”, in Middle Eastern Studies, vol. 13, no. 3, Taylor & Francis, Abingdon 1977, p. 327. 106 107

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The Great Consultative Assembly must be established with the efforts of the witnesses of Islam and the principal agencies of the Imam [the scholars] in order to serve and assist the imāmī government and thus protecting the rights of those who adhere to shīʿa. 109

These words clarified Nūrī’s understanding of the representative government: for him it must always be anchored to the Qurʾān and the sunna. The term used by Iranian constitutionalists ʚXNŠPD PDVKUŠʞD, was devoid of all meaning. These two words did not agree with each other because of identified antithetical and irreconcilable principles. Between 1908 and 1909, Faḍl Allāh Nūrī published two documents, a IDWZć and a pamphlet titled 7DGKNĪUćW DO-GKćfil wa,UVKćGDO-JćKLO, enriching his anti-constitutional argument. 110 According to this scholar, adopting laws inspired by the West was illegal, because it altered the basic Islamic rules, for example, enforcing punishments for admitted behavior. Despite all human action being inscribed into one of the five categories, those actions which are indifferent (PXEćʚ) depend on the interpretation of IXTDKćʯ, the only able to qualify and make them mandatory. The ZLOć\D and not the ZLNćOD must be applied in the absence of Imam. Still it was up to the jurists and not to an Assembly representing the so-called “will of the majority”. To overcome the opposition between the positive and the Islamic law, the scholar proposed, during the drafting of the Persian constitution of 1906, two main options: adding the expression al-PDVUŠʰa wa’l-qćnŠn al-muʚammadĪ next to the word alPDVKUŠʞD and the establishment of an Assembly made by jurists and deputy to analyze all legislation to ensure full compliance with the sources of Islamic law. 111 The Āyāt Allāh Mīrzā Muḥammad Ḥusayn al-Nāʾīnī was the main theoretician of the Persian constitutional revolution of 1906, explaining his views in response to those of Nūrī. The movement that greeted these ideas was a composite and varied one, including V.A. Martin, op. cit., p. 184; A. Hairi, op. cit., 1977, p. 328. V.A. Martin, op. cit., p. 187. 111 T. al-Sayf, ʗLGGDO-LVWLEGćGDO-Fiqh al-VL\ćVĪIĪʰDʜUDO-ĠD\ED, al-Markaz al-Thaqāfī al-ʿArabī, Casablanca 1999, pp. 78–79. 109 110

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intellectuals, bureaucrats and religious authorities. At that time, however, nationalism and constitutionalism tended to be confused so as to appear indistinguishable. The feelings of patriotism and those of limited government were suggested to by Europe in antithetical ways which developed in reaction to the foreign policy of the other powers and their pressures on Persia. Of course, even the opposition to the sunnī world played a role in the formulation of new suggestions. The combination of these values was represented by the constitutionalists’ program: the Qurʾān is the source of religion and the Constitution is the fundamental law of the state, limiting the political power, guaranteeing rights and freedoms. To this other ideas were added: one, represented by traditionalist scholars, tended to emphasize that the constitution as a legal instrument, had nothing to do with the revelation but it was only an accessory. The most liberal scholars instead stated that although the term PDVKUŠʞD was modern, it was compatible with the VKDUĪʰa. 112 The Āyāt Allāh al-Nāʾīnī belonged to this liberal wing and was the author of the treatise 7DQEĪK DO-8PPD ZD-7DQ]ĪK DO-Milla, finished in 1909. 113 This pamphlet is considered one of the first modern VKĪʰĪ texts on the state and the power and is known to have developed new perspectives. The jurist begins to reconcile the constitutional thought with Islam, supporting the thesis of the need for a government during the absence of the Imam. This need stemmed from the idea that the presence of a source of authority was needed not only for human well-being but also to enforce the principle of enjoining good and forbidding evil, preserving Islam in its es-

F.M. Nouraie, “The constitutional ideas of a shiʿite mujtahid: Muhammad Husayn Naʾini”, in Iranian Studies, vol. 8, no. 4, Taylor & Francis, Abingdon 1975, p. 235. 113 S. Arjomand, “Islam and Constitutionalism since the nineteenth century: the significance and peculiarities of Iran”, in S. Arjomand (edited by), op. cit., 2008, pp. 41–43; H. Enayat, Modern islamic political thought. The UHVSRQVH RI WKH VKĪʰĪ DQG WKH VXQQĪ PXVOLPV WR WKH WZHQWLHWK FHQWXU\, MacMillan, London 1991, p. 134; S. Zubaida, Law and power in the islamic world, I.B. Tauris, London 2005, p. 186. 112

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sence. 114 In the period of absence of Imam, therefore, the constitutional government is the most suitable. The community cannot remain without a ruler, nor the Prophet died without having appointed one. 115 The exercise of authority is, therefore, required, no matter what its origin is, whether it is legitimately nominated or developed by usurpation. Moreover, the human intellect is able to distinguish what is productive of well-being and what is harmful. Therefore, the man tends to direct his actions towards PDʜODʚD. This vision is in line with the XʜŠOĪ principles, the premises of al-Nāʾīnī’s work, contrary to the DNKEDUĪ school for which good and evil are not in action unless the VKDUĪʰa does not identify as such. 116 The government is required to protect the VKDUĪʰa and to achieve sovereignty and freedom. The foundation of the Islamic government must agree to two points: God’s law and provisions (DʚNćP $OOćK ZDTDZćQĪQXKX) must be respected; the governor must coincide with the lawyer educated in the law and customs of the Prophet and Imam. 117 Listing these pillars, al-Nāʾīnī shows that establishing a government involves an internal order in which apply the rights, protect the individuals and discourage the foreign interference, thanks to a military force, centralized and controlled. 118 Given that the government is necessary, its nature must be distinguished between two kinds: tamallukiyya and ZLOć\DWL\\D. 119 The first coincides with the tyranny and the absolute government, the second, also called PDʚGŠGD, muqayyida or PDVʯŠOD, identifies the constitutional government within which the relationship between the governed and the ruler is based on clear rules. 120 The term LVWLEGćG translates A. Banani, The modernization of Iran 1921–1941, Stanford University Press, Stanford 1961, p. 10. 115 T. al-Sayf, op. cit., p. 153; A. Belkeziz, op. cit., pp. 47–48. 116 H. al-Gharabi, al-Fiqh al-GXVWŠUĪ ʰLQGD DO-,PćP DO-1ćʯĪQĪ, Dār alMūʾarrikh al-ʿArabī, Beirut 2010, p. 158. 117 Mīrza Muḥammad Ḥusayn al-Nāʾīnī, 7DQEĪKDO-umma wa-WDQ]ĪKDOmilla, in T. al-Sayf, op. cit., p. 246. 118 A. Hairi, op. cit., p. 165. 119 F.M. Nouraie, op. cit., p. 238; H. al-Gharabi, op. cit., p. 252. 120 A. Hairi, op. cit., p. 166; S. Arjomand, op. cit., 2007, p. 118. 114

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the authoritarian rule as in the work of al-Kawākibī, which alNāʾīnī is indebted with. The latter embodies tyranny and patrimonialism, forms of personal administration of political power which excludes the existence of public goods and the recognition of any rights. One of the most important factors among those who contribute to the persistence of tyranny is ignorance with regard to the duties of the governor and with regard to the rights of the people. 121 About religion, that in European thought prevent from tyranny, the author aimed at reconciling constitutionalism with his role of mujWćKLG. The scholars are divided into two categories, on the one hand those devoted to religion but refractory to the oppressive government and inclined to the constitutional ideology, on the other hand, those who claim for the opposite view. The latter are accused of bear a form of religious tyranny, which in turn acts as a cover for that policy. So if obedience to the unjust ruler is illegal, the same way is illegal to submit to religious authority that may prove unjust. The form of government that the jurist defines ZLOć\DWL\\D has no trace of arbitrariness but is based on public interest and on preventing political and religious oppression. Although the righteous government is one in which the ruler commands infallibility, the PDʜODʚD limits the power, since it aims to achieve equality in the relationship between people and the ruling class, promoting the application of the principles of VKŠUć and responsibility. 122 Equality is divided into three aspects: PXVćZć IĪpO-ʚXTŠT concerning rights; PXVćZćIĪpO-DʚNćP that is equality before the law and finally PXVćZćIĪpO-TLʜćʜ, equality under the criminal law. The governor is a guardian and is appointed directly by the Imam and, in his absence, by the ʰXODPćʯ. His duties mainly include the supervision and protection of the country. The scholar draws on the VKĪʰĪ doc121

Ibid., p. 176; A. Belkeziz, op. cit., p. 54; H. al-Gharabi, op. cit., p.

258. A. Hairi, op. cit., p. 189; H. al-Gharabi, op. cit., p. 146. The author distinguishes between LVWLEGćG GĪQĪ and LVWLEGćG VL\ćVĪ. Both cases lack ʚXUUL\\DʰćPPD that is the most important grace and the bases of the ZLOć\atiyya government. 122

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trine relating to the constitutional government an appearance of infallibility, although this feature is up to the Imam only and not to men. However, a skilled governor, who rules in partnership with people can achieve the highest political ideal, ensuring participation and overshadowing the character of usurpation. In a despotic government, usurpation of ZLOć\D is threefold: to God, to the Imam and to the people. In the case of the constitutional government, however, the encroachments are only against the Imam. 123 It is, however, a solvable usurpation: the governor, in fact, may turn to the scholars who, representing the Imam, acknowledge the governor and give him legitimacy. Therefore, the constitutional government is to be preferred to that despotic. 124 In an attempt to reconcile the principle of human sovereignty with the idea of ʚćNLPL\\D, the jurist distinguishes four forms of ZLOć\D: in its highest degree the authority, sovereignty and the exercise of power (ZLOć\D DO-VXOʞD) belong to God. In a second level, the authority resides in the Prophet (ZLOć\DDO-QDEĪ) in his role as the bearer of the law and God’s Caliph on earth. 125 Then follows the authority of the twelve Imam (ZLOć\DDO-,PćP), successors of the Prophet. Finally, it comes the authority of the pious jurists (ZLOć\D DO-IXTDKćʯ DO-ʰXGŠO) given their role as representatives of the Imām during ghayba. To scholars, the author gives some fundamental tasks: limiting the ruler, appointing the members of Parliament and curbing their powers. The constitutional government is preferred to any other government both because it is the only possible model in the absence of the truest Islamic government. In fact, it allows the protection of the dogma of divine oneness (WDZʚĪG) intended by the author as the most important responsibility for the Islamic society. 126 The constitution, which must be compliant with Islam, should provide precise limits to the power, the governor who fails to 123 124

Mīrza Muḥammad Ḥusayn al-Nā’īnī, op. cit., pp. 270–271. A. Hairi, op. cit., pp. 193–194; S. Arjomand, op. cit., p. 2009, p.

43. H. al-Gharabi, op. cit., p. 281. H. al-Gharabi, op. cit., p. 271. In al-Nāʾīnī’s vision, the government is to be considered as a branch of the Imāmate to which belong spiritual as well as secular powers (VXOʞDGĪQL\\DZD-dunyawiyya). 125 126

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comply must be retired from office. The jurist also provides a definition of GXVWŠU, that is the supreme law that defines the nature of power and set out the principles which the people must follow. 127 The constitution provides also for the formation of an assembly composed by representatives of the people, entrusted with the legislative power. The deputies, besides being endowed with honesty and judgment, must be in possession of certain skills: good training in the Islamic sciences, knowledge of international law and politics both local and foreign. Moral integrity is needed because it was a key feature of Imam ʿAlī. The people as a whole, not only the Muslims, give legitimacy to the Parliament, enforcing the mandatory principle of enjoining good and forbidding evil. 128 The author suggested also the creation of a body charged with ʚLVED formed by scholars. This structure must be independent from the executive power, enforcing the separation of powers and should be able to fix the policies in accordance with the sources of Islamic law and the constitution. 129 Also for al-Nāʾīnī, the parliamentary system can be legitimized because it is akin to the Islamic model of ahl al-ʚDOO ZDpO-ʰDTG. 130 However while in the sunnī doctrine this correspondence was not experiencing difficulties, in the shīʿī jurisprudence scholars had to agree upon this similarity. 131 By legal reasoning, the principle of VKŠUć provided the necessary legitimacy for the creation of the National Assembly, a place for discussion of different opinions. Since the VKŠUć is obligatory for the ruler, in the absence of the Imam, parliamentarism is what best embodies consultation and prevents from tyranny. 132 Mīrza Muḥammad Ḥusayn al-Nāʾīnī, op. cit., p. 256. Ibid., pp. 328–329. 129 F.M. Nouraie, op. cit., p. 241. 130 Mīrza Muḥammad Ḥusayn al-Nāʾīnī, op. cit., pp. 296–297. 131 A. Hairi, op. cit., p. 197; A. Belkeziz, op. cit., p. 62; T. al-Sayf, op. cit., pp. 190 and 258. The representation within the assembly must be guaranteed to all citizens, without distinction of creed. Citizenship (muZDʞDQD) defines the civil rights in the Islamic system. The scholar has distanced itself from the principle of dhimma replacing it with that citizenship. 132 Mīrza Muḥammad Ḥusayn al-Nāʾīnī, op. cit., pp. 331–336. 127 128

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Extending the concept of ZLOć\D, the author combines two specific functions in the assembly: control of public finances and lawmaking in accordance with the VKDULʰD. The author shows, also, the positions of parts of the religious establishment that flaunted the proposals. In particular, the detractors of constitutional ideas believed that the administration of the affairs of people should be entrusted only to mujtahid, the only ones able to provide an analysis of the sources of Islamic law. The democratic principle, based on the rule of the majority, which is adopted in the exercise of the legislative function must be considered alien to Islam and is not acceptable. 133According to an established doctrine, ZLNćOD (agency), if applied in a general context, needs the intervention of those able to operate the ijWLKćG, i.e. the scholars. Here lies a difference between the sunnī and the shīʿī jurisprudence on the possibility of establishing an Assembly: in the first case, the representatives of the community are represented by notables, in the latter, by QXZZćE of the hidden Imam: the scholars. Also the elections are analysed by the author under the principle of ZLNćOD. They represent a special agency applied to the constitutional field. The vote is configured as the ratio of the voter (QćNKLE) which is the represented (muwakkil), and elected (QDʯLE), which acts as a representative (muwakkal). From this relationship derives the constitutional principle of binding mandate (ZLNćOD LO]ćPL\\D) according to which the representative is linked to the represented who looks after his interests. It follows that those who are elected do not act in relation to the collective well-being but in favor of the party they voted for. Al-Nāʾīnī illustrates three types of government. The first, the constitutional government, sets a limit to authorities and is deemed illegal from the point of view of shariʿa. Nevertheless, this government is made acceptable through the consensus of the scholars. The tyranny that not only may never be considered legitimate from the point of view of the shariʿa, but contrasts also with natural law. Finally, the government of the jurist is the only legal form because it is based on Islamic law. The mujtahid who possess certain re-

133

A. Hairi, op. cit., p. 205; A. Belkeziz, op. cit., p. 61.

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quirements is entitled to frame a government in line with Islamic values. 134 About the concept of law-making, al-Nāʾīnī elaborated an extensive interpretation: those rules that are specifically prescribed by the Islamic law are not likely to be changed. In all areas where the shariʿa does not set out precise rules, is up to the ZDOĪ to decide, if necessary by creating new rules. This part of the law is liable to be modified, or be adapted to the needs of time and space. Once the Imam was present, legislation belonged to him and his agents, while during ghayba is performed by the scholars and above all by the most learned, the marjaʰ al-taqlĪd. Based on this doctrine, if the scholars authorize the application of a law, studied and prepared by the Parliament, it is unlawful to doubt its legitimacy from an Islamic perspective. This is achieved by resorting to some typical instruments of shīʿī jurisprudence, including the use of mandatory preliminary (PXTDGGLPDZćjiba). 135 With this tool it is allowed to classify as mandatory, the action that commonly is recommended or indifferent, provided it is not prohibited explicitly. The adoption of the constitution does not meet any ban, and contributing to the common welfare, it becomes a legal obligation. 136 It is clear that al-Nāʾīnī embraced a different view from the rest of the shī‘ī jurists. For the first time, he considered the theory of constitutionalism as an independent topic, unbound to the ZLOć\D even if connected to the Imamate. 137 The main consequence of this process is that while the jurists commonly ascribed the authority to H. al-Gharabi, op. cit., p. 183. A. Hairi, op. cit., p. 210. As an alternative to marjaʰ al-taqlĪd, according to the VKĪʰĪ jurisprudence, it is possible to replace with an adequately prepared scholar, authorized directly from the first. According to al-Nāʾīnī the Parliament is the place in which the ʰulamćʯcarry out LMWLKćG, determining the authenticity of the traditions and identifying the meaning of the Qurʾānic verses. 136 H. Enayat, op. cit., p. 170. 137 H. Enayat adds that, generally, in the sunnī jurisprudence the same result is achieved through the use of PDʜODʚDor by the juristic preference (LVWLʚVćQ). 6KĪʰĪ jurisprudence, however, does not allow the use of PDʜODʚDand thus, historically, has resorted to the mandatory preliminary. 134 135

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IDTĪK reducing his functions if necessary, al-Nāʾīnī was operating the reverse process, delimitating the secular powers to the advantage of the IDTĪK. Furthermore, while for the majority of the jurists the ZLOć\D remained a question concerning the judiciary to al-Nāʾīnī it was tied to power. Building a legitimate government while remaining outside the Imamate and ZLOć\D is not only lawful but also useful, given the linkage between politics and the general welfare. The legitimacy of a government is not derived from the personality of those in charge but from the actual political practices. The exercise of power is a contract between two parties: the people who give the power and the one who receives the office, remaining within the limits of the ZLOć\DVKDUʰiyya. In exercising this duty, the governor should be assisted by an assembly whose members are not elected but appointed. Therefore, next to the right of the Imam which results in the divine Imamate, there is also a right of the men entrusted in a constitutional government.

4. RATIONALIZING POLITICAL POWERS: THE OTTOMAN CONSTITUTION OF 1876 The demand for constitutional reforms in the Ottoman Empire arose from the need to find a solid basis to renew the principle of sovereignty. The adoption of the constitution was a direct consequence of the WDQʲĪPćW process, and it also marked its conclusion. Also there was the will of strengthening the existing institutions, mediating between the European models of governance and the endogenous models. 138 The first intellectual circles created to spread constitutional theories had an Islamic character and were aimed at the restoration of Islamic law. After the formation of some semi-clandestine movement, in 1865 the Company of Young Ottomans was created, initially by just five intellectuals, including Namīq Kamāl. They were motivated by the aim of transforming the absolutist regime into a constitutional government. The group, however, did not have an easy life, and broke up because of the multiple internal conflicts, which originated from the difficulty of reconciling the different souls of the members. The suggestions 138

N. Berkes, op. cit., 1964, p. 201.

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made by them can be summarized in three points: the need to adopt a system of liberal government; the adoption of a fundamental law and, finally, the creation of representative bodies. The Young Ottomans, in principle, criticized the WDQʲĪPćW, considering these reforms had only been taken to please the European countries, rather than safeguard the welfare of the state and the people. On the contrary, they believed that to achieve concrete results, the reforms had to make proposals coming from the inside and reflecting the popular sovereignty. 139 At the center of these reflections, there was the concept of freedom, the absence of which had been the real source of decadence. A liberal regime would produce some improvement in relations with Europe and overall wellbeing for citizens. 140 The constitutional government was the only legitimate form of government and did not violate religion. On the contrary, it was needed to revive Islamic constitutionalism of the past. The Ottoman constitution of 1876, also known as the constitution of Midhat, was a typical example of legislation octroyée, drafted not by popular will but by permission of the Sultan. 141 He, according to the third article, enjoyed the sovereignty by divine right. However, the rationalization of power, especially in the legislative branch, was justified by the application of the principle of the rule of law. Both ʰXODPćʯ and statesmen believed that the constitutional institutions could stem the royal prerogative to legislate, exercised On this point, see: N. Berkes, op. cit., 1964, p. 204; K.M. Karpat, Political and social thought in the contemporary Middle East, Praeger, New York 1982, pp. 50–51; Id, “The transformation of the Ottoman State, 1789– 1908”, in International Journal of Middle East Studies, vol. 3, no. 3, Cambridge University Press, Cambridge 1972, pp. 243–281; S. Mardin, The genesis of the young ottoman thought, Princeton University Press, Princeton 1962; N.R. Keddie, “Pan-Islam as proto-nationalism”, in The Journal of Modern History, vol. 41, no. 1, The University of Chicago Press, Chicago 1969, pp. 17–28. 140 A. al-Azmeh, Islams and modernities, Verso, London 1996, pp. 108– 109. 141 R. Devereux, 7KH ILUVW RWWRPDQ FRQVWLWXWLRQDO SHULRG $ VWXG\ RI WKH Midhat Constitution and Parliament, The Johns Hopkins Press, Baltimore 1963, p. 62. 139

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with the enactment of the TćQŠQ, limiting the arbitrariness and then restoring the supremacy of VKDUĪʰa. Public debates on constitutional government were frequent since the previous decade, because of the propagation of the Young Ottomans’ theories, especially those of Khayr al-Dīn al-Tūnisī. Between September and October 1876, 120 notables, among whom were personalities belonging to the Christian community, gathered to discuss the proposal of Midḥat Pāshā. 142 The commission, charged with drafting the text was composed of twenty-four officers, even if other four were added. Sixteen of them were civil officers, ten ʰXODPćʯ and two army generals. Midḥat was elected President. The Sultan ʿAbd al-Majīd II announced that twenty constitutional projects were brought to his attention, but to be selected was only that of Midḥat, albeit in an amended version. At first the formula that transformed the Grand Vizier in the Prime Minister was maintained, despite the strong opposition of the committee and the ambiguous attitudes of the Sultan who, according to Namīq Kamāl, wanted to strengthen his imperial prerogatives. 143 After the appointment of Midḥat as Grand Vizier, on December 19 1876, the constitution was adopted by a decree stating the compatibility with VKDUĪʰa and previous reforms. In the final document, the Sultan was identified with the Supreme Caliph in the line of succession of ʿUthmān according to “established standards” (article 3). 144

Article 3 of the constitution established the dominion of the Ottoman Empire as defined in Articles. 1 and 2. The first specified that the Ottoman state included the territories, possessions and semi-independent provinces forming an indivisible unit. The principle of sovereignty was linked to that of integrity. S. Mardin, op. cit., 1962, p. 105 and pp. 365– 366. See also: S. Arjomand, “Constitutional Development and Political Reconstruction from Nation-Building to New Constitutionalism”, in S. Arjomand (edited by), op. cit., 2007, p. 8. 143 N. Berkes, op. cit., 1964, p. 246. 144 The idea that the Ottoman Sultan inherited the office of Caliph was a constant in the history of the kingdom, despite the inability of the Turkish rulers to ascend to this nomination because of the absence of the qurashiyya requirement. However this tradition acquired importance during 142

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Under article 4, the sovereign was qualified, according to the classic jurisprudence, as the protector of Islam and the SćGLVKćK of the Ottomans. 145 In addition, the person who was the Sultan became sacred as in European monarchical tradition and irresponsible for acts adopted pursuant his powers. This provisions empowered the Sultan to decide independently from the constitution and gave him conformity with Islamic law. 146 Some warranties for royal powers were introduced by article 7 fixing the duties of the Sultan. Specifically, he could appoint and dismiss ministers, grant titles and insignia, dispose to mint coins and maintained the prerogative to be mentioned in the NKXʞED. In line with the jurisprudence about the Caliphate, the Sultan had recognized the title of commander of the armed forces, had the power to declare war, to agree on a ceasefire and to enter into treaties. The command of the armed forces, together with the application of VKDUĪʰa and commutation of sentences, represented an original mix of Islamic and European law. From this were borrowed the provisions which gave the Sultan the power to summon and dissolve the assembly without consultation. According to article 113, the Sultan could declare a state of emergency, suspending civil rights, whenever materialized a threat to public security. 147 The Ottoman constitution introduced some changes in the composition of the form of government. The most important executive positions became the Grand Vizier and the Shaykh al-Islam appointed, pursuant to article 27, directly from the Sultan. Other

the reign of Sulaymān the Magnificent (1494–1566). See also: S. Derengil, The well-protected domains, I.B. Tauris, London 1998, pp. 46–48. 145 The reference to the orthodox jurisprudence of al-Māwardī is evident in the function of the ruler as the protector of religion, in particular. The Sultan now arrogated entirely the title of Caliph. By doing so, he tried to keep the interference in the Balkan areas inhabited by Muslims who have fallen under European control. 146 The sacred character of the Sultan is recalled at article 5 and not in article 4 as reported in R. Devereux, op. cit., p. 63. 147 In the event of dissolution of the assembly, article 7 stated the reelection of the lower chamber alone.

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ministers were chosen by a royal decree named irade. 148 The Council of Ministers could adopt measures necessary to implement the policies inside and outside the State. Some decrees had to be submitted for the approval of the Sultan by imperial acts. The Grand Vizier was not depicted at all as a Prime Minister but as a primus inter pares. He could decide, in accordance with article 28, over disputes relating to jurisdiction between the various ministers. Moreover, even for ministers, individually or in the Council, a principle of responsibility was introduced since the trust was conferred on them and lifted directly from the sovereign and not by the assembly, expression of people’s will. 149 Members of Parliament were entitled to raise the complaints on the work of ministers. Article 31 stipulated a precise, but rather complicated procedure, to trigger a special form of interrogation. 150 This was initiated by the President of Parliament, as established by article. 77, but it could be blocked by the chamber’s commissions. However the concerned minister was not obliged to appear before Parliament if not at the conclusion of the entire investigation, determining the content of the complaint. 151 If a crime was discovered, the Parliament could not order the removal of the minister accused but, more modestly, ask the Grand Vizir to prosecute the minister. The matter was then referred to the Sultan and his court, which decided through a royal decree. According to article 38, the Parliament could oblige the minister to appear before the assembly. In this case, the minister could designate a replacement or exercise the right to postpone the interrogation, taking responsibility for R. Devereux, op. cit., p. 67. The ministers retained their office in case of disagreement with the Grand Vizier, as only the Sultan could remove them, in accordance with article 7. 150 Article 30 established the responsibility of each Minister for their duties, while article 21 delegated to a special law the task of determining the procedure for establishing the prosecution of a minister. Articles 33 and 34 stated the principle of equality between the minister and the subjects on issues relating to private life. The minister accused and awaiting trial was relieved of his political office. 151 R. Devereux, op. cit., p. 155. 148 149

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this act which however remained legal. Article 35 did not recognize any power to Parliament which had repeatedly rejected a bill proposed by a minister. In this case, the Sultan, by virtue of his prevailing sovereignty, had the right to remove the promoter of the law, or to dissolve the chamber and prepare the elections. 152 The limited nature of Parliament was clear in article 36 that acknowledged the minister the possibility of adopting the emergency law, during the period in which the assembly was not in session. The constitution referred to the Parliament a series of powers, laid down in articles 42–80. 153 The body was named General Assembly (Majlis al-8PXP) and consisted of two chambers: the Senate and the Chamber of Deputies (article 42). MPs were entitled the right to vote and freedom of opinion (article 47) and immunity from arrest unless this had not been passed by the Assembly. The departure of the office, however, was lawful if the deputy accepted another political office or when he had been charged by allegations of corruption, high treason or attempt against the constitution. In some cases, however, the deputy could be deposed only after the majority of two thirds of the members of the House to which he belonged had voted accordingly. The vote was mandatory and personal (article 49) and no deputy was allowed to appear simultaneously in both chambers (article 50). Deputies could not be blamed for the views they expressed to guarantee right of ex-

Despite the complexity of this procedure, it was always the Sultan to decide on. He had the right to refuse to issue any decree, with a particular kind of veto. 153 Article 43 stipulated that the two chambers were to meet in the first day of November of each year for the inauguration while in the first day of the March ended the session. The dates should be announced by royal decree, thus giving greater authority to the Sultan in convening the Assembly or prevent the meetings. Articles 44 and 45 stipulated the Sultan’s ability to anticipate the convening or prolong it. On the parliamentary elections during the first Ottoman constitutional phase, see: H. Kayali, “Elections and the electoral process in the Ottoman Empire, 1876–1919”, in International Journal of Middle East Studies, vol. 27, no. 3, Cambridge University Press, Cambridge 1995, pp. 265–286. 152

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pression (article 47). However, they could be indicted by a competent court (article 48). The President of the Chamber was entitled to coordinate the sessions. He opened and closed the gatherings, directed the debates and votes. In addition, he was in charge to communicate with the Senate and the Sublime Porte (articles 29 and 34 of the regulations). Moreover, he headed a private militia, responsible for the defense and protection of the Parliament (article 97 of parliamentary regulations). 154 Given these safeguards, the constitution established, starting from article 54, the legislative process: the drafts were sent to the House of Representatives and then to the Senate. Only after the text had been voted by both chambers, it could go to the Sultan for final approval. No law could be adopted unless it was incorporated into a royal decree opening the way for a genuine right of veto of the Sultan. 155 It should be noted that the chambers were afforded the legislative initiative only in their areas of competence, vaguely defined by the constitution. In fact the only real power of the Assembly was to vote on the budget law, subject to the consideration of deputies during the opening session (article 99). 156 The government was not empowered to collect taxes or to authorize spending them without parliamentary approval (articles 97 and 100). As a counterweight, article 102 stated that if the rooms were not able to vote on the budget law in the set time, the In addition to the President, the regulations also staring at the presence of two vice-presidents appointed in the same manner as the first. According to R. Devereux there was not any real logic behind the choice of the two Vice-Presidents, and, therefore, the practice to appoint a Christian and the other Muslim was coincidental. This charge does not involve any specific power than to detect the functions of the President in case of his absence. 155 Devereux stresses that these provisions drastically restricting the actual operation of Parliament, reducing it to a mere debating society. 156 This provision was drafted in article 53.2, where the chambers possessed the authority to modify the existing laws. In this case, however, the Parliament’s initiative was subjected to the receipt of the proposed amendment by the Grand Vizir, who in turn destined it to the Sultan for the final and decisive opinion. 154

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government could apply the previous legislation. Moreover, article 101 gave ministers the opportunity to collect the taxes and to authorize expenditure in case of emergency, during the period of suspension of the Parliament, unless justifying such actions before the judiciary. The Court of Auditors, established by the articles 105– 107, served as a support for preparing the financial statements and in addition held a control for all financial transactions. The composition of this Court remained responsibility of the sovereign and none of its 12 members could be removed, except by the vote of the majority of the lower chamber. 157 The Senate held a supervisory function for the lower house whose members represented the people. In the upper house sat the representatives of the Sultan who were a counterweight during the legislative activity. Article 60 stipulated that the senators were appointed directly by the Sultan among those who had shown loyalty to the Ottoman house, and, pursuant to article 61, only if they had turned forty. The appointment of senators was for life and, unlike the deputy, they had not imposed restrictions on holding multiple offices. The trial was public and the principle of judicial predetermination eliminated any possibility of appointing a special judge or an ad hoc committee for particular categories of crime (art. 89). The constitution however does not put forward a system of separate courts only sanctioning the creation of the High Court of Justice (arts. 92–95). The justice system therefore remained divided into two spheres: civil courts responsible for judging cases related to relations between people, like financial litigations, and VKDUĪʰa courts which were entitled to judge over personal status-related issues. 158 About the legislative process, the Ottoman constitution was not detailed: article 55 stipulated that the approval of the law was subject to a majority system of vote; the vote was intended for individual items and then for the law as a whole. The article 54, however, forbade that a rejected bill to be presented in the same parThis Court in fact never came into operation and, therefore, did not pay the service function which had been delegated for. R. Devereux, op. cit., p. 71. 158 The constitution also sanctioned the existence of the High Court and the Court of Cassation that were not yet covered in detail. 157

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liamentary session. All that not regulated by the charter was referred to the parliamentary regulations (chapters 5, 7 and 11). Subsequently the project law passed to the Chairman of a committee or a special office. Once the text went back to the chamber, the procedure concerning the two debates that preceded the vote on the law was provided for. 159 The first debate concerned the law in its entirety; at the end of this debate, deputies were asked to vote on whether to proceed to the second debate on individual items, opening up a chance to shelve the bill. 160 The constitution also stipulated that the ministers, or their representatives, took part in the work of the chambers, although without voting. This is explained by virtue of the constitution which ascribed to the ministers the opportunity to trigger the legislative process, although articles 27 and 28 of the parliamentary regulations recognized the legislative initiative the deputies and senators. Members of both chambers could ask for new legislation or an amendment to the pre-existing laws, explaining their reasons. If the chamber approved the request, the process began from the office, or the Commission, competent by the topic of the law. On completion of discussions, the bill was sent to the Grand Vizir, and forwarded to the State Council. The Parliament’s first function was not only to legislate but also to exercise a body control over the executive, as the aforementioned article 38. The chamber was entitled to call on the minister to appear in court to answer on a specific question. The explanations given were subject to a vote in the Assembly. Neither the constitution nor the regulations illustrated, however, the procedure in the event that the Parliament had judged the explanations to be insufficient of the minister, or the latter, taking advantage of the right to postpone the hearing, dwelt the response. Article 31 of the constitution gave to the deputies the power to raise accusations against the ministers in case of misdeeds and failures: the request must be received in writing to the Chairman of the chamber who, within a three-day limit, assigned the matter to a committee. Article R. Devereux, op. cit., p. 167. A negative vote was tantamount to the rejection of the bill so that it could not be presented a second time in the same session. 159 160

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52, however, formulated the right to petition, exercisable only after other means had been exhausted. The minister was obliged to answer the petition, and if this did not happen, the Chairmen could press for an answer. However, there were no other ways, except the same petition, to force the Minister to reply. 161 Although article 51 of the constitution stipulated that any of the Chamber’s decision had to be approved by a simple majority of the vote, for some issues the project law envisaged a qualified majority of 2/3: the approval of the prosecution alleged to the Minister (article 31), the approval of the prosecution alleged to a member of the chamber and the approval of a constitutional amendment (article 116). 162 The constitution and the internal regulations ascribed to Parliament the exclusive right to vote for its legality through the drafting of reports on the credentials of the deputies, processed by specific commissions. As long as the process was not completed, the deputy subject to investigation could participate in the sessions and exercise the right to vote but did not enjoy parliamentary immunity enshrined in articles 47 and 79 of the constitution. Certified the regularity of the appointment, the deputy became irresponsible for the opinions and votes casted and could not be pursued without the prior approval of the chamber, except in case of flagrante delicto. 163

Article 32 of the internal regulations introduced some changes in the constitution, establishing that the chamber and not the President had to decide on the more appropriate commission to transmit the question. The charged minister had to be present at the moment of reading the opinion of the commission but only if the chamber had deemed his presence necessary. 162 The procedure to amend the constitution was modified to require a 2/3 majority, but not an absolute majority. 163 R. Devereux, op. cit., p. 178. The regulations prescribed the policy to prevent absenteeism of deputies. These punishments were mostly fines. 161

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5. THE PERSIAN CONSTITUTION BETWEEN CLASSICAL F IQH AND POSITIVE LAW

The Persian constitutional revolution of 1906 was the consequence of the pervasive injustice of the qajarī government and broke out in the context of the confrontation between Russia and Britain for hegemony on Persian empire. 164 It was a nationalistic and democratic revolution but this revolution was also the first contact with Western legal models. Its causes are rooted to the inefficiency of the State, the centralization process and the manifest weakness of the political authorities. 165 At the beginning of the century, moreover, a severe economic crisis happened, causing a dramatic increase in the price of food and the devaluation of the currency. At this stage, Persia was experiencing a gradual transformation from a premodern society, for example, by the disappearance of the traditional villages. Migrations from traditionally rural areas caused the weakening of prominent social figures, such as those of the elders. 166 Another consequence of the economic depression was the migratory movement to Russia, which in the early twentieth century counted a hundred thousand Persians. 167 The Western constitutional ideas were not yet penetrated in the late nineteenth century

F. Sabahi, Storia dell’Iran, Mondadori, Milano 2006, p. 27. S. Arjomand, The turban for the crown. The Islamic Revolution in Iran, Oxford University Press, Oxford 1988, pp. 35–38. The author also reports a debate arising among the scholars on the name for the new constitutional government. The expression that prevailed, as seen discussing the thought of al-Nāʾīnī, was ʚXNŠPD PDVKUŠʞD PDVKUŠʰD or conditioned legal government. 166 N. Hashemi, “Religious disputation and democratic constitutionalism: the enduring legacy of the constitutional revolution on the struggle for democracy in Iran”, in Constellations, vol. 17, no. 1, Blackwell Publishing New York 2010, p. 52; J.H. Lorentz, “Iran’s great reformer of the nineteenth century: an analysis of Amīr Kabīr’s reforms”, in Iranian Studies, vol. 4, no. 2/3, Taylor & Francis, Abingdon 1971, pp. 85–103. 167 J. Afary, The iranian constitutional revolution 1906–1911. Grassroots democracy, social democracy and the origins of feminism, Columbia University Press, New York 1996, pp. 20–22. 164 165

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and started to influence the civil society just at the beginning of the new century. The hierarchy of religious leaders shared with the class of traders the discontent for raising taxes especially those on property that struck the DZTćI. Among the members of religious circles, before the constitutional revolution, three were the main positions: Mullā Muḥammad Khurāsānī (1839–1911) and Shaykh ʿAbd Allāh Māzandarānī (1840–1912) believed that until the reappearance of the hidden Imam, a proper constitutional government would have to replace tyranny. On the other side Sayyid Muḥammad Ṭabāṭabāʾī (1842–1920) and ʿAbd Allāh Bihbahānī (1840–1910) shared the idea of constitutional government, but they believed, however, that it was easier to establish some counterweights within the monarchy. Finally, Faḍl Allāh Nūrī (1843–1909) and the first constitutionalists advocated the establishment of a limited government or ʚXNŠPDPDVKUŠʞD, a government affected by the Qurʾān and the sunna. 168 On 29 July 1906, following violent demonstrations, the head of government, ʿAyn al-Dawla (1845–1926), was forced to resign. On August 5 an Extraordinary Assembly was elected by the people and remained in office for two years. This assembly had full legislative, financial and diplomatic competences. It drew up a first constitutional document, ratified by 6KćK Muẓaffar al-Dīn al-Qājārī (1853–1907) on 30 December 1906. However, on October 7, 1907 was promulgated a second fundamental law which at the beginning was considered a mere charter and only several months later reached the rank of the constitution, based on the Ottoman example. 169 The first text established a bicameral assembly while the latter added over 107 articles concerning the executive powers and

M.M.J. Fischer, Iran. From religious dispute to revolution, Harvard University Press, Cambridge 1980, p. 149. 169 S. Arjomand, “Religion and constitutionalism in western history and in modern Iran and Pakistan”, in S. Arjomand (edited by), The political dimension of religion, State University of New York Press, New York 1993, p. 69. 168

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the rights of the people. 170 The first article sanctioned Islam as the state religion in accordance with the jDʰIDUĪ law, defined the orthodox LPćPĪ VKĪʰD. 171 The same rule committed the 6KćK to profess and to promote this belief. Thus, the LPćPĪdoctrine was inscribed in the constitution for the first time and was recognized as the basis of state. 172 The second article introduced a fancy version of the so-called repugnancy clause, stating that in no case the National Consultative Assembly could approve laws, even by the favor of the sovereign and the scholars, in conflict with Islamic rules and principles laid down by the Prophet. To the scholars, the second paragraph gave the power to determine whether a legislative act was in tune with VKćUĪʰD. 173 For this extent was convened a commission formed by five mujtahid or theologians of an equivalent grade, for crimping the Islamic law to the needs of modern times. 174 Article 18 also encouraged the study of the sciences and the arts provided they were not prohibited by Islam, while article 20 forbade any publication against religious teachings. Article 58, then, established the obligation for ministers to profess Islam. The most important innovation introduced by both constitutional texts was probably the rationalization of Parliament. Constitutionalism has been interpreted since its beginnings as a synonym for parliamentarism, even if the assembly was certainly not the poW.F. Abboushi, Political systems of the Middle East in the 20th Century, Dodd, Mead & Company, New York 1971, p. 73. For the full text of the constitution see: H.M. Davis (edited by), Constitutions, Electoral Laws, Treaties in the Near and Middle East, Duke University Press, Durham 1953, pp. 104–105. 171 M. al-Labbad, ʙDGćʯLT DO-$ʚ]ćQ ĩUćQZD-:LOć\DW DO-)DTĪK, Dār alShurūq, Cairo 2009, p. 53. 172 A.K.S. Lambton, op. cit., 1957, p. 20. 173 H.M. Davis (edited by), op. cit., p. 117; N. Shevlin, “Velayat-e Faqih in the Constitution of Iran: the implementation of theocracy”, in The Journal of Constitutional Law, vol. 1, no. 2, University of Pennsylvania, Philadelphia 1998, pp. 359–360. 174 This article was suggested by Faḍl Allāh Nūrī. See also: S. Arjomand, op. cit., 1993, pp. 78–79; H. Enayat, op. cit., p. 172. 170

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litical body with greater powers. Its importance, in fact, was mostly symbolic since relatively it exercised control activity. Under article 18 of the first constitutional documents, the Assembly had to approve each expenditure of the state, administering the public treasury and monitoring all costs. The following article stated the possibility to request to the executive the implementation of economic reforms prescribed by law. Thus, the 6KćK was forbidden to freely dispose of public resources. Any loans must be approved by Parliament. Unlike the Ottoman, Persian Constitution posed a real control of the executive through the possibility to rise questions and petitions even if these instruments were never used. The ministers could be called to report before the chambers about their tasks and to reply any requests, providing the reasons for which they issued illegal acts. Finally, Parliament had the authority to request the removal of one or more ministers accused of negligence in the application of the law. It was also formulated by a true principle of personal and collegial responsibility before the chambers for the government except for the 6KćK, who could dissolve the executive. 175 The Parliament, appointed by the sovereign (article 1 law of law 1906) consisted of two chambers (article 27 of law 1907): Majlis al-6KŠUć and the Senate. The first, the lower house, was made up of a minimum of 162 to maximum 200 members elected by the people. 176 The duration of the mandate was limited to two years but article 5 gave the opportunity to re-elect the members who had served well. The upper house was made up of 60 members, half appointed and half chosen by the governor. Half of both groups came from the capital and from the entourage of the sovereign, although the Senate played only a limited role in the legislative process, compared to the lower house. Although both structures have been created by the constitutions mentioned above, the Senate was never operational before 1950. The constitution afforded the Parliament the power to grant and revoke the trust of the members of the executive, individually or collectively. 176 W.F. Abboushi, op. cit., p. 76. This number was maintained until the adoption of a constitutional amendment in 1957. 175

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The executive power, in accordance with article 27, paragraph three of the law of 1907, belonged to the 6KćK exercised with the ministers responsible for enforcing ordinances and policies. The succession to the throne was governed as follows: in case of death, the eldest son of the 6KćK ascended to the title but only if he was born to a Persian mother. 177 In the event that the successor had not turned twenty, the Assembly would have appointed a regent to act in his place. 178 Also in the absence of male heirs, the governor could appoint a successor, provided he was identified within the qājārī family and receiving the allowance of the Assembly. The 6KćK appointed the ministers, including the Prime Minister, responsible for the decrees he signed, lifting the 6KćK from any responsibility. In case of disagreement between the Parliament and the 6KćK, the fate of ministers remained in the balance since both possessed the capacity to remove them. 179 Such a framework assumed a stable relationship between the two powers, or a predominant dominion of one over the other. The chambers could be dissolved by the 6KćK who, however, had to bring his explanations every time he exercised this prerogative. Furthermore, the constitution provided for the re-election of the Assembly within one month after cessation of its activities. 180 The judiciary was not independent, despite the declaimed principle of separation of powers, but was controlled by the ministers who appointed, removed, transferred and promoted the judgThe same article created a doubling of the court system by introducing secular structures beside the religious ones. See: S. Arjomand, “Shari'a and Constitution in Iran: a historical perspective” in A. Amanat – F. Griffel (edited by), op. cit., p. 157. 178 W.F. Abboushi, op. cit., p. 77. In 1967 an amendment gave to the queen the opportunity to act as regent. 179 In most cases, it was the Parliament to be relegated to a subordinate position compared with the 6KćK. His prerogatives were not limited by the constitution, and therefore remained absolute and unlimited. The constitution only introduced a fragmentation of the executive power. 180 Within the royal prerogatives on Parliament, the 6KćK possessed a veto power regarding the economic and financial issues and could rely on the chambers or merge them into special session. 177

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es. 181 The reforms of the judiciary consisted in the adoption of the new codes, that replaced, totally or partially, the Islamic jurisprudence: in 1925 was adopted the commercial code, while in 1926 and 1928 respectively, the criminal and civil codes. Article. 27 of the second basic law, defining the structure of the public authorities, stressed that the judiciary belonged to the religious courts for cases concerning the shariʿa and to the civil courts for what concerned the ordinary legislation. 182 Article 71 defined the mujtahid as responsible to judge over religious matters, in accordance with the imāmī law. 183

6. THE LEGAL CLOSURE OF THE CALIPHATE AND THE RISE OF THE JURISPRUDENCE ON THE “ISLAMIC STATE” While the Persianate world was experiencing the first constitutional revolution, in the sunnī world the final step to the adoption of constitutionalism requested the legal closure of the Caliphate. The extinction of this traditional structure, although more ideal than real, occurred in three phases: in the first place, through the secular position undertaken by the Young Turks, supporters of the constitutional revolution of 1908, by which the Ottoman constitution of 1876 was restored. This group made use of Islamic arguments to refuse the necessity of the Caliphate and legitimize its closure. In the second place stands the orthodox position represented by the guardians of Islamic jurisprudence, the ʰXODPćʯ of the University of al-Azhar, who, in 1926, in Cairo, organized the pan-Islamic conference on the Caliphate. Finally, the third step toward the closure of L. Lockhart, “The Constitutional laws of Persia: an outline of their origin and development”, in Middle East Journal, vol. 13, no. 4, Middle East Institute, Washington 1959, p. 379. 182 S. Arjomand, op. cit., 1993, p. 80; H.M. Davis (edited by), op. cit., p. 121. 183 In 1907 four civil courts were created: the Court for claims on the property, the Criminal Court, the Court of Appeal and the Supreme Court of Appeal. In 1908 was created a Special Court to settle disputes between civil and religious tribunals. Finally, in 1910 the office of the Attorney General was created. See: A. Banani, op. cit., p. 69. 181

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the Caliphate came with the pamphlet written by ʿAlī ʿAbd al-Rāziq (1888–1966), member of al-Azhar who denied the necessity of the Caliphate and underlined this was just a mere product of history. 184 The Caliphate was officially abolished by the Assembly of Ankara on March 3, 1924, while in April were abolished all courts which enforced the VKDULʰD in the Ottoman Empire. 185 For ʿAbd alGhānī Sānī Bey, a pseudonym, was ascribed a pamphlet titled al.KLOćID ZD-6XOʞD Dl-8PPD in which the members of the Assembly justified the end of the Caliphate. 186 This treaty opens recalling the tradition according to which the Caliphate lasted only for thirty years and the position of the jurist al-Taftāzānī who established the idea of NKLOćIDNćPLOD, as observed in the first chapter. This institution should be considered necessary under the law only if it is regular. The author, thus, refuted that the positive laws must conform to the Islamic jurisprudence (TDZćʰLG ILTKL\\D), which in turn conforms to God’s standards (DʚNćP LOćKL\\D). There are not similar requirements in the shariʿa considering that the rules developed in the jurisprudence are based on human interpretation (DʚNćP LjtiKćGL\\D) and not on the divine law. While the first are variable because they depend on the position of the IDTĪK, the latter are immutable. The rules derived from jurisprudence are DʚNćPVKDUʰL\\D, legitimate but in no way identified with shariʿa, that is imperative rules laid down from the Qurʾān and the sunna (DʚNćPPDQʜŠʜ). That reasoning was functional to the question of the Caliphate since it was configured as a ZLOć\DʰćPPD, comparable to the role played by

N. Shorabi, “Historicizing revolutios: constitutional revolutions in the Ottoman Empire, Iran and Russia, 1905–1908”, in 7KH $PHULFDQ Journal of Sociology, vol. 100, no. 6, The University of Chicago Press, Chicago 1995, pp. 1383–1447. A detailed account of the conference is contained in: A. Sékaly, Le congrès du khalifat et le congrès du monde musulman, Éditions Ernest Leroux, Paris 1926. 185 W.F. Abboushi, op. cit., p. 21; D.A. Rustow, “Political Islam in Turkey 1920–1955”, in R.N. Frye, op. cit., p. 76. 186 ʿAbd al-Ghānī Sānī Bey, al-.KLOćIDZD-VXOʞDWDO-umma, Dār al-Nashr wa’l-Tawzīʿ, Cairo 1995; H. Enayat, op. cit., p. 55–56; M. Khadduri, op. cit., pp. 214–215. 184

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the President or a king. 187 If the appointment of the Caliph was expected from jurisprudential rules, it was necessary only when someone in possession of the required conditions was found, otherwise it was no more necessary. 188 Even more so, the Sultanate, based on coercion and not on the free choice, set aside its necessity also for the absence in the Ottoman lineage of the qurashiyya. The governor, regardless of the nature of his authority, was to be responsible before the community for the acts adopted, despite the Ottoman constitution affirmed the opposite. The rule that sanctioned the irresponsibility of the Sultan, according to the author, was transposed by European monarchical tradition, but it was in contrast with shariʿa. 189 The Ottoman constitution sacralized the figure of the Sultan, recognizing him a statute that Islam did not recognize anyone. 190 The Caliphs not only had to answer for their actions before God, but also before the community. From this responsibility he drew his strength (quwwa) and power (VXOʞD) that made the ZLOć\D, i.e. the exercise of authority over others. In the absence of a delegation of authority, no one possessed the ability to exercise influence over others. 191 The author emphasized that in Islamic law there are different types of authority: ZLOć\D GKDWL\\D, like the one that bounds father and son, ZLOć\DJKD\UGKDWL\\D also called ZLOć\DWDIZĪʘL\\D, which ties the prosecutor and the instigator. Within this resided the ZLOć\DDOʚXNP, the governmental authority. The Caliphate was a ZLOć\D ʿAbd al-Ghānī Sānī Bey, op. cit., p. 98; K.A. Faruki, op. cit., pp. 206–207. 188 This position was prompted by al-Ījī and al-Jurjānī. See: F. Jadaane, “Notions of the state in contemporary arab-islamic writings”, in G. Salamé (edited by), The foundations of arab State, Routledge 2002, p. 112; H. Enayat, op. cit., p. 56. 189 The author quotes the famous episode of the transfer of the title of Caliph to the Sultan Salīm I (1470–1520) by the last member of the Abbasids dynasty Mutawakkil ʿalā Allāh III (–1543), on the occasion of the landing of the Ottomans in Egypt. See the point: D.A. Rustow, “Politics and Islam in Turkey 1920–1955”, in R.N. Frye, op. cit., pp. 76–77. 190 ʿAbd al-Ghānī Sānī Bey, op. cit., p. 110. 191 Ibid., p. 119. 187

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WDIZĪʘL\\D where the delegation came from the electors on behalf of the community. Therefore, it was a ZLOć\DʰćPPD, general and not a special one (ZLOć\DNKćʜʜD . Every Muslim has a portion of this office, triggering the power of the community (VXOʞD DO-umma) over public authorities (ZLOć\DWDO-umma al-ʰćPPD). The Sultan had no legitimate authority as he did not have any legal public authority and governed by the use of coercion. However, even if it was not possible to appoint a regular Caliph, it was still necessary to form a government of any kind, in order to prevent the rise of anarchy within the community. Based on this general rule, a government which applies justice can be accepted. The requirements of the Caliphate became only QLʲćP and ʰDGO, organization and justice. Therefore, the righteous and bureaucratized government should be considered in line with the principles of Islamic law. It must also be based on consultation since God has ordained this practice. The VKŠUć was prescribed irrefutably, because it is provided by all the sources of Islamic law. Its operating procedures are discretionary, ranking among the principles changing over time (DʚNćPʲDPćQL\\D). 192 In accordance with these positions and under Qurʾān 4:58–59, the pamphlet concluded by denying both the need of the Caliphate and the Sultanate. The obedience traditionally paid to the latter had now to be recognized to anyone who possessed authority, the ʜćʚLE al-amr such as the deputies of the Assembly in Ankara. 193 Even stronger was the jurisprudence elaborated by some scholars from several Muslim countries who gathered at the Cairo Congress in May 1926. They reached the conclusion that the aboliIbid., p. 123. This statement represented the most effective among the justifications of the introduction of parliamentarism. 193 On this point, see the arguments preseted by Muḥammad Iqbāl, Reconstruire la pensée religieuse de l’Islam, Libraire d’Amérique et d’Orient Adrien-Maisonneuve, Paris 1955, p. 170. The Pakistani modernist endorsed the thesis expressed by the members of the Assembly in Ankara, referring to it as a form of LMWLKćG straining to expand and renew the declining institution of the Caliphate. The author writes, in fact, that “the republican form not only conforms to the spirit of Islam, but it is also necessary because of the new political forces that are released into the community”. 192

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tion of the Caliphate by the Turkish Assembly was an attempt to separate the spiritual and temporal authorities, traditionally summarized upon the Caliph. The Congress pointed out that such a gesture was an unprecedented innovation. 194 The movement of the Young Turks appointed the Caliph ʿAbd al-Majīd II (1868–1944), giving all effective powers to the Parliament and leaving him only religious prerogatives. Moreover, the Congress decreed this appointment invalid because it had been affected in violation of the written procedures. Thus, the newly-appointed sovereign could not administer the civil as well as the religious affairs of community. The ʰXODPćʯ had already participated, in 1924, to a Congress concluding that studying the institution of the Caliphate was necessary to reconcile Islamic law with the new governments which Muslims had chosen. 195 The Congress focused on three issues: the definition of the Caliphate; its character of necessity; the establishment of procedures to appoint the Caliph. Regarding the first point it was reiterated the general authority granted to the Caliph, who therefore possessed both temporal and spiritual powers. Any form of government that does not concentrate these powers in the hands of a single entity could not be considered a truly established Caliphate. As for the necessity to have a Caliph, this need originated from a large number of traditions and the fact that since its existence depended the application of the VKDUĪʰa. Finally, with reference to the provisions concerning the election, the Congress recognized the canonical procedures but pointed out that the most serious obstacle for his appointment was the division of the Muslim community in various states, autonomous and animated by nationalistic sentiments. A Caliphate of this type was not legitimate (sharʰĪ) and would only be illusory. 196 On this basis, the Congress A. Sékaly, op. cit., p. 5. Ibid., p. 31. The minutes of the Congress (pp. 46–48) contains a list of the scholars who participated. See also: K.A. Faruki, op. cit., pp. 203–206. 196 The minimum goals set out in the minutes of Congress reproduces the definition of the Caliphate established by al-Māwardī. As for the conditions of eligibility, the membership of quraysh and the ability to practice LMWLKćG are considered preferable but not mandatory. 194 195

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came to the conclusion to deny the necessity to appoint a new Caliph, postponing it to a more propitious moment. According to the ʰXODPćʯ the Caliphate was necessary but in the absence of the conditions to give him powers, the duty of his appointment could be temporarily suspended. ʿAlī ʿAbd al-Rāziq, author of al-,VOćPZDDO-XʜŠODO-ʚXNP (given to the press in 1925) came to similar conclusion. The author held the office of TćʘĪ in Egypt since 1915 and, as he explains in the introduction, he decided to analyze the Islamic government by virtue of its institutional role. The Caliphate in its genuine form was maintained until the appointment of ʿAlī. Later it turned into a monarchy. 197 From the experience of the first Islamic State, two main theories on the authority of the Caliph can be assumed. According to the first: […] The Caliph draws his authority and power from God. […] So spread this opinion and scholars and poets have handed down from the earliest centuries of Islam. They say […] that God Himself appoints the Caliph and bestows him this office.

The second opinion stressed that the Caliph drew his powers from the nation (umma): […] The nation is the source of his power and it elevates him to that position. 198

The last thesis drew from the doctrine of authoritative jurists, particularly al-Kāsānī. He emphasized the difference between the institution of ZDNĪO and that of TćʘĪ: In the first case, the death or removal of the mandator caused the decay of the representative; M. ʿAmmāra (edited by), al-,VOćP ZD DO-XʜŠO DO-ʚXNP OL-ʰ ʰ$EG DO5ć]LT, al-Muʾassasat al-ʿArabiyya li’l-Dirasāt wa’l-Nashr, Beirut 2000; E. Panetta (edited by), L’Islam e le basi del potere, Estratto da “Studi Politici”, Anno V – II Serie – Fascicolo 4, Sansoni, Firenze 1959. See also: A. Hourani, op. cit., pp. 184–192; N N. Ayubi, op. cit., p. 54. For a critique of the theories set out in this text, see: M. al-Rīs, al-,VOćPZDpO-NKLOćIDIĪDOʰDʜUDO-ʚDGĪWK, Dār al-Turāth, Cairo 1972. 198 M. ʿAmmāra (edited by), op. cit., p. 117; E. Panetta (edited by), op. cit., p. 227. 197

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conversely, in the second case, the death or removal of the Caliph did not undermine the judge’s office. The legal reasoning was the following: while between mandator and agent exists a direct relationship, between the judge and the Caliph there exists a mediated link. The judge does not act solely on behalf of the Caliph, but acts in the name of the Muslim community. The Caliph is an agent acting on behalf of the whole umma. The public authorities (ZLOć\ćW ʰćPPD) are conferred by the community and survive the death of the Caliph. The scholars, although they argued for the necessity of the Caliphate, they had never managed to anchor it in the Qurʾān. According to al-Rāziq, consensus alone is not enough to validate the necessity of the Caliphate, considering the lack of any support in the Qurʾān. Also, if the scholars have had to resort to consensus, this implies that even the Prophetic sunna did not provide any support. 199 There is no evidence in the sources of Islamic law to establish the Caliphate as a religious prescription. Then the author explains that while admitting the Prophet’s orders to obey the Caliph: It is equally true that God has commanded us to be faithful to the contract with the polytheists […]. This does not prove that God admits polytheism […]. Have we been ordered by law to obey the insurgents and rebels, to follow their orders even when they are rendered masters by force and serious consequences for disobedience could follow? This does not require legal recognition of the rebellion, nor the lawfulness of the revolt against established authority. 200

And in addition: God speaks to us of slavery, orders us to liberate the slaves, to treat them with kindness and there are many requirements concerning them; but this does not prove that slavery is an in-

M. ʿAmmāra (edited by), op. cit., p. 123; E. Panetta (edited by), op. cit., p. 234. See also Qurʾān 4:38. H. Enayat, op. cit., p. 62. 200 M. ʿAmmāra (edited by), op. cit., p. 124; E. Panetta (edited by), op. cit., p. 235. 199

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stitution willed by religion, nor that it is recognized as desirable. 201

Not only is the Caliphate necessary, says al-Rāziq, but the Prophet did not serve any proper political mission. On the contrary he was sent by God not as sovereign. Rather his authority stemmed from the apostolate (ZLOć\DDO-ULVćOD) devoid of any worldly ambition. The unity of the community was religious in nature, never political. This unity was based on faith and not on secular power. The creation of a state was a step which materialized with the appointment of Abū Bakr and not during the life of the Prophet. 202 This argument was deemed so heterodox that an opposite position was taken up by Muḥammad Bakhīt (1854–1935) in his volume titled ʙDTĪTDDO-LVOćP wa-XʜŠODO-ʚXNP. Contrary to the ideas of al-Rāziq, he believed that an Islamic government always existed and it was the Caliphate, whose source of power was the umma. Therefore, it must be defined as a universal system, democratic, free and consultative. In saying this, Bakhīt indicated that the Islamic state owned the same strengths of constitutional doctrines with which shared some general aims. According to this scholar, and unlike for al-Rāziq, Islam was at once religion and state. 203 All forms of government change due to the principle of PDʜODʚD. But while the state and the government are necessary elements for the application of the VKDUĪʰa, the particular definition of their form is considered of secondary importance. 204 Every useful form should be adopted as long as is not contrary to the sources of Islamic law and contributes to overall well-being. For this reason the adoption of the liberal constitution-

M. ʿAmmāra (edited by), op. cit., p. 125; E. Panetta (edited by), op. cit., p. 237. 202 A. Hourani, op. cit., p. 189; G. Kramer, “Islamists notion of democracy” in Middle East Report, no. 183, Middle East Research and Information Project, Washington 1993, pp. 2–8. 203 A. Hourani, op. cit., p. 191. 204 G. Kramer, op. cit., p. 5. 201

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alism did not meet any resistance on the part of the scholars of alAzhar, becoming acceptable and even recommended. 205 Despite Muḥammad Rashīd Riḍā was part of the salafiyya, given the theme of his work, it is appropriate to illustrate his thought following the thesis al-Rāziq of which Riḍā was an ideal opponent. He tried to advocate a third way, capable of bringing together reformist ʰXODPćʯand those thinkers supporters of the Islamic tradition. The book entitled al-.KLOćID DZ-al-,PćPD DO-ʰ8ʲPć was published in 1922 in the aftermath of Ankara’s decision to pay off the Ottoman Sultanate. The basic thesis aims to revive the Caliphate, since it was functional to religious reform. The Caliph, according to Riḍā, should be given legislative powers to return to the Qurʾān and the sunna. The expression ŠOŠ DO-amr, contained in Qurʾān. 59 refers to those who have executive power and represent believers, according to an interpretation similar to that provided by Muḥammad ʿAbduh. 206 According Riḍā, since the legitimacy of the Caliphate was based on moral qualities, the candidate as well as having a religious education, had to possess the knowledge of law and international politics to be a good head of state. Significant were the necessary requirements, borrowed from the doctrine of alTaftāzānī: It is equally true that God has commanded us to be faithful to the pact contracts with the polytheists. Thus, the [Caliph] must be Muslim, honest, free, male, mujtahid, brave, capable of forming his own opinion. He must not be deaf, dumb and blind. He must also be a quraysh. If no one from that tribe possesses all

A. Laroui, The crisis of the arab intellectual. Traditionalism or historicism? University of California Press, Berkeley 1974, p. 118. 206 H. Laoust, Le Califat dans la doctrine de Rasid Rida, Librairie d’Amerique et d’Orient Adrien Maisonneuve, Paris 1986, p. 5; M. Haddad, “Arab religious nationalism in the colonial era: rereading Rashid Rida’s ideas on the Caliphate”, in -RXUQDORIWKH$PHULFDQ2ULHQWDO6RFLHW\, vol. 117, no. 2, American Oriental Society, Ann Arbor 1997, pp. 253–277; A. Hourani, op. cit., pp. 222–244; N. Brown, op. cit., 2002, p. 165; W. Hallaq, 6KDUĪʰa. Theory, practice, transformation, Cambridge University Press, Cambridge, 2009, pp. 504–508. 205

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the qualities required, then it is permissible to appoint a member of the bDQŠ.LQćQD, […] if not even among these is the candidate, a non-Arab can be appointed. 207

In the classical history of Islam, the Sultans claimed to act as Caliphs but they were only similar to tyrants acting as absolute monarchs: For this reason, the Turks, imitating the European nations, have limited their powers through a constitution: the people who made this reform, like Midhat and his partisans, have been shown to completely ignore the Islamic public law. That is why in the end the Kemalists have overturned the state and abolished all forms of personal government. 208

The constitution is not harmful in itself, nor divorced from Islamic law, according to Riḍā. It was the contact with Europe that showed the benefits of limited government. For example, an institution like the Parliament looked in full to the Islamic assembly of notables with the only difference that the latter required: […] moral and intellectual qualities that are not required, to this day, for the European representatives and their servile imitators. Members of the Ankara Assembly have become indeed the members of the ahl al-ʚDOOZDpO-ʰDTG and have taken the place of the Chamber of Deputies, the Council of Ministers and the Sultan himself. 209

It is also necessary to give an active role to ʰXODPćʯ since they have become unable to meet the demands of modern times. But they should oppose the secularizing trend carried by foreign cultural models and by the supposed incompatibility between Islam and politics. Therefore, it is right to restore a Caliphate which must comply with Islamic law, being universal. 210 Rashīd Riḍā discussed H. Laoust, p. 29. H. Laoust, p. 72. 209 H. Laoust, op. cit., pp. 100–101; K.A. Faruki, op. cit., pp. 208– 209; M. Haddad, op. cit., pp. 256–257. 210 H. Laoust, op. cit., p. 115; S. Zubaida, op. cit., p. 16. 207 208

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the problem of VKDUĪʰa codification through the legislative power. 211 For the scholar there was no difference between LVKWLUćʰ and WDVKUĪʰ: the first word indicates the deduction and interpretation while the second the act of law-making. From the Islamic law perspective is always lawful to create new rules, rather than adopting European codes, based on different contingencies. Riḍā explains that: The rules concerning material life are qualified by religion, since God promulgated them and thus following them shows obedience to the Creator. In this sense then it applies to God the definition of Legislator and also to the Prophet who this law has transmitted. 212

But the VKDUĪʰa relates also to religion and worship. Even those rules concerning social relationships have a specific religious significance. As for political, administrative and financial regulations, the community was regulated by the Prophet himself. After his death, the opinions were made by the scholars who were the most suitable to legislate. This power has been authorized by God, attributed to the community and has been performed by those distinguished for their knowledge and judgment. 213 The power to legislate, then, is allowed for three reasons: the lack of prohibition in the sources of Islamic law; the principle of necessity; the obligation to forbid evil. Contingencies have shown that the Caliphate evolved into corrupted forms other than that of the first community. Thus, the inability to resurrect the Caliphate in its ideal shape lead to transfer its powers to the modern Islamic state(s). 214 To this extent Riḍā focused exactly on an entity distinct from the Caliphate and defined The author dealt also with this topic in his .LWćE DO-:DʚGD and Yusr al-,VOćPZD-8ʜŠODO-7DVKUĪʰDO-ʰćPP. Cfr. H. Laoust, op. cit., p. 151. 212 H. Laoust, op. cit., p. 155. See also: C. Lombardi – N. Brown, “Do Constitutions requiring adherence to Shariʿa threaten human rights – how Egypt's Constitutional Court reconciles Islamic Law with the liberal rule of law”, in $PHULFDQ8QLYHUVLW\,QWHUQDWLRQDO/DZ5HYLHZ, vol. 21, no. 3, Washington College, Washington 2006, pp. 408–411. 213 H. Laoust, op. cit., p. 157. 214 D. F. Eickelman – J. Piscatori, Muslim politics, Princeton University Press, Princeton 1996, p. 31. 211

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GDZOD LVOćPL\\D. 215 Its salient features are the principle of popular sovereignty and human lawmaking. Regarding the first the application of the principle of consultation must ensure its democratic character. About the lawmaking process, the author argued against the adoption of European codes that were not compatible with a cultural Muslim identity. The lawmaking act should be conducted to accommodate social change and modernization. In this case, the reference remains the VKDUĪʰa whose interpretation has to be based on devices such as WDOIĪT, LVWLʚVćQ and LVWLʜOćʚ. New interpretations lead to an innovative concept of both ʰLEćGćW and muʰćmalćt. What falls within the domains of politics, administration, economy and judiciary falls within the sphere of IXUŠʰ al-fiqh, a field in which legislation is allowed, due to the absence of definitive predictions in both the Qurʾān and sunna. This legal dynamism, according to Riḍā, should become specifically the salient feature of the Islamic state and must be taken as the only way to follow to avoid any conflict between modernity and the Islamic law. 216 With Riḍā all that stubborn current of thought about the necessity of the Caliphate is completely extinguished. Through his studies, this scholar showed that the political and constitutional future of the Muslim world had to be based on the “Islamization of modernity”, not simply on a more sterile modernization of Islam. By forging new concepts and terms (such as Islamic state), Riḍā opened the door to the penetration of European models into the Muslim juridical culture which, at least in theory, had to be reworked in an original way. As will be seen in the next chapter, this syncretism has not always been achieved and indeed the truly Islamic elements of constitutionalism have ended up becoming residual.

H. Enayat, op. cit., p. 77. The scholar said, in fact, that Islam can not be said to be fully implemented unless there is a strong and independent Muslim state able to enforce the revealed law. See also: G.E. Von Grunebaum, “Problems of Muslim Nationalism”, in R.N. Frye (edited by), op. cit., p. 10. 215 216

CHAPTER III. THE DEVELOPMENT OF ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY. THEORY AND PRACTICE 1. CONSTITUTIONAL CYCLES IN THE MUSLIM WORLD: PURPOSES AND FUNCTIONS OF THE CONSTITUTIONS

Since the fall of the Ottoman Empire, four constitutional cycles developed in the Muslim world. 1 The first cycle saw the adoption of constitutions inspired by colonial powers and influenced by Western legal models. Liberal constitutionalism developed in the late nineteenth century and the first half of the twentieth when most of the Muslim countries were subject to direct colonization or milder forms of protectorate. In particular, this process has affected Egypt, Iraq, Syria, Lebanon, Trans-Jordan, Morocco, Tunisia and Libya, by the end of the First World War and up until the 1950s. In this regard, constitutions were applied without solid foundation since those newly born states did not possess the same strength as the European political systems they imitated. Not sur-

G. De Vergottini, Diritto costituzionale comparato, CEDAM, Padova 1999, pp. 905–911. The author does not use the “Islamic countries” category nor that of “Arab countries”, but the most generic of “developing countries”, which also includes the sub-Saharan Africa and non-Islamic Asia, warning that it is inadequate as well as unscientific. The developing countries are actually very different, depending on the region and more or less marked colonial experience. 1

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prisingly, the sources from which inspiration was drawn were the French-Belgian models with some British influences. 2 The second constitutional cycle, instead, developed following the declarations of independence of Muslim countries and was completed during the first sixty years of the twentieth century. Maintaining a liberal character, the constitutions have undergone numerous changes on the basis of local needs and to restore traditional institutions marginalized during the colonial phase. The outcome of this constitutional process has been almost exclusively undemocratic, with the attribution of power in authoritarian organs. In some cases, this happened in countries which have not experienced direct colonial rule, the adoption of constitutions has allowed the formal recognition of some traditional institutions. The rejection of Western models resulted in the concentration of power in the hands of a national leader, often an expression of the armed forces, with an explicit reference to the values of Islam and, in certain cases, to the birth of the Arab nation. This phase covers the time span ranging from the beginning of the nineteenth century until the 1950s. During the first wave, some well-established institutes granted in Western constitutionalism were integrated: the principles of popular sovereignty, separation of powers, federalism, citizenship and citizenship rights (divided into civil, political and social rights). The “popular” qualification of sovereignty had formal recognition in the Republican systems as well as in the monarchies. Thus, the principle of separation of powers, based upon the French model, was consecrated into specific articles. The choice of the form of N. Brown, “Retrospective: law and imperialism: Egypt in comparative perspective”, in Law & Society Review, vol. 29, no. 1, Blackwell Publishing on behalf of the Law and Society Association, Oxford 1995, pp. 103–126; A. Giannini, Le Costituzioni degli Stati del Vicino Oriente, Istituto per l’Oriente, Roma 1931, p. 12. Giannini, drafting the first Italian collection of Islamic constitutions, beginning in the 1930s of what he called the “birth date of the constitutional life of the Islamic world”. N. Brown, starting from Egypt, demonstrates that the codification process of constitutional law was not imposed from the outside, but there was a selfprotection against the European imperialist penetration. 2

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 151 government derived from national situations: parliamentarianism was the predominant and recognized in some constitutions adopted before the Second World War, combined in certain cases with the monarchical institution. 3 Following the example of English and French systems, the executive power was dualist: on one hand there was a government that received the confidence by the Parliament, on the other side stood the head of state, who was politically irresponsible. The second constitutional cycle was characterized by a gradual rejection of foreign models with the concentration of power in the hands of an executive (mostly tyrannical), the compression of certain fundamental rights and even the disappearance of the multiparty system, where existent. This process took place in a climate of political instability in almost all post-colonial societies and the constitutions were closely related to personalities who have promoted and used them mostly to strengthen their own power. 4 The main consequence was the derogation of democratic institutions, including the principle of separation of powers: the executive power, in fact, was centralized in the hands of the prime minister. In contrast, assemblies were losing their prerogative by keeping a mere consultative role. 5 Although a trusting relationship between the Parliament and the Prime Minister remained, the President had very broad powers. 6 In fact, he could appoint and remove ministers and possessed the right to dissolve the chambers, when the deputies voted a second time a rejected bill. Finally, the balances between the powers were obstructed by the faculty of the executive power to take emergency decrees or regulations derogating ordinary legislations. These exceptional powers of the executive were As in the Egyptian constitutions of the 1920s, the Iraqi one of 1924, the Jordanian one of 1946 and the Libyan one of 1951. 4 G. De Vergottini, op. cit., p. 961. 5 The initial balance between the executive and the legislature, encouraged by the presence of a two-headed executive, broke down as the second wave of constitutionalism began to develop. 6 The President was accompanied in many post-colonial systems by the appointment of a Vice President who acted as an alternate in case of absence of the former. 3

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highly discretionary. In addition, a limited number of the second cycle constitutions admitted a multi-party system; but, in most cases, the presence of multiple parties was illegal or simply not contemplated. Typically, the constitution allowed the presence of a single party or predicted the existence of a hegemonic party, namely a political grouping favored in comparison to others. The concentration of power was strengthened in some political systems by the prominent role attributed to the army, which was a center of power entirely self-sufficient and cohesive. Even without the direct exercise of power, the army could act as a lobby and was able to influence decision-making. Generally, the attitude of the military to the constitution was ambiguous: apart from a cautious allowance, sometimes the army showed a tendency to suspend or abolish the basic guarantees through declarations or by assuming direct power, then drafting new ad hoc constitutions, approved subsequently by referenda. The third constitutional cycle, starting from the 1960s, was inspired by the socialist tendency as an alternative to the liberal model. 7 This cycle concerns some socialist systems: Algeria (1961), Syria (1964), Iraq (1968) and Egypt (until 1971). 8 Their characteristic feature was the attempt to organize the community into a vanguard movement, through the National Party and a political élite. The reference was to Socialist ideology, with the total rejection of the principles of liberal capitalism. 9 The features of the organization of the state were the centralization of bureaucracy and economy and the solidarity with the other socialist states on the international stage. The exercise of power also was centralized in the hands of a The post-war period has seen the rise of the “Third Worldism” and independence instances that mixed with the socialist ideology than with the liberal one. The first, in fact, was understood as the values of social justice, equality and thus independence. 8 G. De Vergottini, op. cit., pp. 997–998. Egypt fits only partially in this group. 9 On the nature of liberal democracy which liberal constitutionalism is the pillar, see : C. Armony – H.E. Schamis, “Babel in democratization studies”, in Journal of Democracy, vol. 16, no. 4, John Hopkins University Press, Baltimore, 2005, pp. 115–116. 7

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 153 small number of people through various means: the principle of collegiality, the adoption of mandatory and full replacement of the executive in the legislative function during long intervals between the different parliamentary sessions. An exemplary case of the application of these principles is Algeria. In fact, the National Liberation Front (NLF) was defined by the Constitution of 1963 as the only revolutionary vanguard party (article 23), in charge of determining national policies and administering the state, checking the assembly and the executive power (article 24). The party secretary was also President of the Republic (article 39), whilst the leaders of the party chose and appointed the candidates who sat in Parliament. 10 In this way, all the organs of the state were the expression of the central power of the party and were easily subject to conditions. The fourth and last constitutional cycle is characterized by the rejection of the socialist model and for the partial recovery of some liberal characteristics. This wave took place at the end of the twentieth century, coinciding with the end of bipolar hegemony. After embracing the Soviet model, many Muslim countries took the road back to liberal constitutionalism. In this phase, which is still in progress, the constitution aims to give space to both the application of individual rights and democratic demands. The principles of free market economy and private property are reaffirmed and generally economic rights are preserved. This openness in terms of democratic values, however, is not counterbalanced by a real political liberalism. A key element of European and American constitutionalism that never filtered in the constitutional doctrine of Muslim states, except for Turkey, is secularism. 11 According to scholars, the primary cause of this is the persistence of the religious justification of power; consequently, in some states the sources of Islamic law are explicitly mentioned in the constitution. However, it is improper to refer to these systems as “theocracies”.

B.L. Garcia – C.F. Suzor, Introduccion a los regimenes y Constituciones $UDEHV, Centro de Estudios Constitucionales, Madrid 1985, pp. 262–264. 11 G. De Vergottini, op. cit., p. 920; A. Predieri, 6KDUĪʰDH&RVWLWX]LRQH, Laterza, Roma-Bari 2006, pp. 60–63. 10

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Arjomand distinguishes three constitutional waves, temporally modelled upon those already seen. 12 The first was characterized by the reception of liberal models, the second, called “ideological constitutionalism”, introduced some innovations: the sources of Islamic law were considered the new basis for the constitution, granting sovereignty to God rather than to the people. The second phase made use of other distinguishing features of Islamic constitutionalism: the confessional clause which sanctioned the Islamic character of the state and considered the VKDUĪʰa as “the” main source of law or as “one” of the sources, and repugnancy clause already formulated in the Persian constitution of 1906, which required compliance of laws to the Qurʾān and sunna. Islam became an ideology, like that socialist or communist one, limiting popular sovereignty and legislative power. The masterpiece of this form of constitutionalism is a draft constitution elaborated by a group of scholars of the Center for Islamic Studies of Al-Azhar University and published in Majallat al-$]KDU in 1979. 13 The third wave of constitutionalism, defined as postideological, is characterized by the return to the rule of law, by exceeding the vision of Islam as the sole foundation of the state and by the restoration of VKDUĪʰa as a limit for government. As already seen in the previous chapter, according the jurisprudence of the Caliphate, when the ruler commits a sin against Islam, the people have the right to disobey his orders, even removing him. Today this doctrine has been invoked to reject authoritarianism and to promote democracy and pluralism. As theorized by the so-called “new Islamists” or “liberal Islamists”, democracy is considered the S. Arjomand, Constitutionalism and political reconstruction, Brill, Leiden 2007, p. 116; S. Arjomand, “Constitutions and the struggle for political order a study in the modernization of political traditions”, in European Journal of Sociology, vol. 33, no. 1, Cambridge University Press, Cambridge 1992, p. 46. Ideological constitutionalism attempts to inculcate an ideology to the society and generally rejects all instances in contrast with the same ideology. 13 Islamic Research Academy Technical Secretarial Department, “Draft of the Islamic Constitution”, in Majallat al-$]KDU, vol. 51, no. 4, alAzhar, Cairo 1979, p. 151. 12

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 155 closest form of government to Islam. Thus, the idea that the sharĪʰa should be a total ideology is discredited. 14 This impact on the ideological assumption that the Qurʾān contains within it the truest Islamic constitution. 15 Identified with the natural law, revelation is revalued especially in its nature of social contract, which is the founding moment of the contemporary state based upon positive constitution. 16 With the constitutional process following the invasion of Iraq in 2003, the beginning of a new phase of Islamic constitutionalism has been suggested. This wave does not concern the ex post approval of a constitutional draft drawn up by a small group of “founding fathers”. Instead it fosters a real and inclusive democratic political process that sees the people involved in the election of a constituent assembly, expression of national sovereignty. 17

R.W. Baker, Islam without fear: Egypt and the new islamists, Harvard University Press, Cambridge 2003; L. Binder, Islamic liberalism: a critique of development ideologies, University of Chicago Press, Chicago 1988; B. Rutherford, “What do Egypt’s islamists want? Moderate Islam and the rise of Islamic Constitutionalism”, in Middle East Journal, vol. 60, no. 4, Middle East Institute, Washington 2006, pp. 707–731. 15 N. Brown, “Sharia and State in the modern Muslim Middle East”, in International Journal of Middle East Studies, vol. 29, no. 3, Cambridge University Press, Cambridge 1997, pp. 371–372. 16 S. Akhavi, “Sunni modernist theories of social contract in contemporary Egypt”, in International Journal of Middle East Studies, vol. 35, no. 1, Cambridge University Press, Cambridge 2003, p. 23; M. Khadduri, “The juridical theory of the Islamic State”, in The Muslim World, vol. 41, no. 3, Hartford Seminary, Hartford 1951, pp. 181–185. 17 N. Brown, “Iraq and the new Constitutionalism”, presented at InWHUQDWLRQDO 6WXGLHV $VVRFLDWLRQ DQQXDO PHHWLQJ, March 2006, San Diego; Id, “Bargaining and imposing Constitutions. Private and public interests in the Iranian, Afghani and Iraqi constitutional experiments”, in S. Arjomand (edited by), Constitutional politics in the Middle East with special reference to 7XUNH\ ,UDT ,UDQ DQG $IJKDQLVWDQ, Hart Publishing, Oxofrd 2008, pp. 63– 76; Brown, “Constituting Palestine: the effort to write a Basic Law for the Palestinian Authority”, Middle East Journal, vol. 54, no. 1, Middle East In14

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2. HISTORICIZING CONSTITUTIONALISM IN THE MUSLIM WORLD

2.1. Constitutions as tools for nation-building During the first half of the twentieth century, national states rose after the fall of the Ottoman Empire and the countries that maintained a concrete autonomy, took the constitution as a means to assert their sovereignty, and to reclaim new identities. It was only after the 1960s that the constitution took on an ideological value since it also represented the manifesto of revolutionary regimes now freed from European domination. 18 The institutional framework was republican or monarchist, both based on a parliamentary system. The separation of powers was enforced with the attribution of the legislative in the hands of an Assembly elected, except in the case of Jordan. In this country, before the adoption of the 1952 constitution, only the upper house of royal nomination was granted the power to legislate. 19 Among the general principles of this kind of constitutionalism, were indication of Arabic as official language and adherence to the Arab nation, with a strong nationalist ideology based on anticolonial intent. All constitutions stated Islam as the religion of the state. Moreover, the judiciary was independent and required common courts (such as courts of first instance, appeal and cessation) and religious tribunals, distinct for Muslims and other religious confessions competent in matters of personal status. Also, special courts (military courts, administrative courts and tribal courts) were consecrated. 20 Beyond these similarities, the evolution of constitutional law was peculiar to each country.

stitute, Washington 2000, p. 26; V. Hart, “Democratic Constitution making”, in 8QLWHG6WDWHV,QVWLWXWHRI3HDFH6SHFLDO5HSRUW 107, luglio 2003. 18 S. Mahmassani, al-$Zʘćʰ DO-tDVKUĪʰL\\D IĪpO-duwal al-ʰDUDEL\\D, Dār alʿIlm li’l-Malāyān, Beirut 1962, pp. 199–200. 19 AA. VV., ¦WXGHV $UDEHV 'RVVLHUV /p,VOćP 'ĪQ ZD-Dawla, no. 72, PISAI, Roma 1987, p. 47. 20 Among the special courts fell those enabled in disputes relating to foreigners. After the Ottoman Empire collapsed, these courts were abol-

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 157 Egypt. Following the Ottoman example, a basic law was adopted in 1883, together with the electoral law on the functioning of some purely consultative assemblies. 21 These measures were a vast attempt to solve the domestic economic crisis. However, this text did not treat constitutional norms, but only some guidelines which established and governed the action of some bodies, such as the Provincial Council, the Legislative Council of just thirty members, the General Assembly and the State Council. The General Assembly and the Legislative Council were equipped with limited decision-making power in matters of taxes. The ministers could attend Assembly meetings. In the case of irreconcilable antagonism between the Government and the Assembly, the latter was dissolved and re-elected. If the new members took the same decisions, these were binding. The Egyptian constitution, unlike the Tunisian and Ottoman one, showed a real willingness to introduce the instruments of trust and of political responsibility. However, the principle of political representation was not yet accepted, as the assemblies remained an expression of notables and were provided with advisory powers. 22 In 1922 Britain favored the ascent to the throne of Egypt the king Fu’ād (1868–1936) and later declared the end of the protectorate. In 1923 a new constitution was adopted, then modified in 1930 and again substantially in 1935. These texts outlined the framework of a hereditary monarchy, into the family of Muḥmmad ished gradually. This began in Turkey, followed chronologically by Iraq (1932), Syria (1945), Lebanon (1946), Egypt (1949). 21 A. Giannini, op. cit., p. 46. This constitution was adopted in the last two decades of the nineteenth century with the approval of the Great Britain that developed a real form of occupation of Egypt. The first parliamentary institutions was created by Ismā‘īl Pāshā, who established an Assembly consisting of elected members in proportion to the population. See: B.L. Garcia – C.F. Suzor, op. cit., pp. 28–31. 22 N. Brown, “Regimes reinventing themselves. constitutional development in the Arab world”, in International Sociology, vol. 18, no. 1, SAGE, London 2003, p. 35; A. Baaklini, G. Denoeux, R. Springborg, Legislative SROLWLFVLQWKH$UDEZRUOG7KHUHVXUJHQFHRIGHPRFUDWLFLQVWLWXWLRQV, Lynne Rienner Publishers, London 1999.

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ʿAlī, and a parliamentary form of government. The Assembly, the sole owner of the legislative function, was composed of two chambers: the Majlis al-1XZZćE, totally elective, and Majlis al-6KX\ŠNK, elective for 3/5 of its members. 23 The executive power was exercised by the king along with Ministers, while the judiciary was qualified as independent. Through the power to adopt ordinances, subjected to a control, the government was involved in the legislative power. The king could ask for the review within one month of the approval by the Assembly. In this case the draft was considered definitively approved if it had been voted by 2/3 of the members of both chambers (article 36). 24 The ministers were entitled to sign the acts already signed by the king (article 60), being irresponsible for them. The constitution prohibited the amendment of some articles concerning the form of government, the parliamentary, dynastic principles and the values of justice and freedom. 25 Amendments to the other articles of the constitution had to be approved by a majority of 2/3 (articles. 156–158). The executive and legislative powers were balanced by the confidence that both chambers granted to the government. The ministers responded only to the lower house, while the Prime Minister could ask the king about the dissolution of Parliament in case of conflict. The power of dissolution of the chambers was used by the king in all those occasions when a difficult cohabitation with the Liberal government dominated by the Wafd Party appeared. It follows that the constitution in question did not provide a fair system of checks and S. Mahmassani, op. cit., p. 202. See also: A. Giannini, op. cit., pp. 61–66. The constitution of 1930, which replaced that of 1923, was cancelled by the Royal Decree n. 67 of 30 November 1934. This constitution guaranteed a series of rights and freedoms, such as personal and association freedom, equality before the law, the principle of legal certainty. Article 149 considered Islam as the state religion. 24 Although the king was the Commander in Chief of the Armed Forces, he could not declare a state of offensive war in the absence of prior approval from Parliament. 25 S. Mahmassani, op. cit., p. 207. See also: Y. al-Jamal, al-1LʲćPDOGXVWŠUĪDO-0LʜUĪPDʰDPXTDGGLPDIĪGLUćVDDO-PDEćGĪDO-GXVWŠUL\\DDO-ʰćPPD, Dār al-Nahḍa al-ʿArabiyya, Cairo 1995, pp. 122–128. 23

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 159 balances among the branches of government. Despite the overt intention to assure independence, article 154 prevented the adoption of any law contrary to British interests. 26 Jordan. The formation of the Assembly in Jordan was encouraged by Britain to achieve three objectives: demonstrate internationally that the UK was fulfilling the obligations of mandatory power; reinforce the image of the regime and lastly ratify the Anglo-Jordanian treaty, which legitimized the British presence in the country. In 1928, the adoption of the Organic Law defined the prerogatives of the Legislative Assembly and the way its twenty-two members were elected. The six members framing the government, who continued to be appointed by the king, were simultaneously members of the Assembly, but were not accountable to it. The king had the right to open, suspend or postpone the session. Moreover, he had the power to enact laws, after consultation with the head of the British mandatory resident. KuZait. The tension between the ruling dynasty of Āl Ṣabāḥ and merchants, true holders of economic power, led in July 1938 to grant a constitution made up of only five articles, considered the first constitution of the country. This basic law identified the nation as the source of authority (article 1), enforcing this principle with the creation of an Assembly entitled to legislate in sensitive sectors like foreign policy, public finance, security and social policy. 27 Article 3 strengthened the Assembly’s powers, stating that economic concessions, monopolies and loans could not be achieved without the Assembly’s approval. This clause was significant, since it was directed against British companies operating in the oil sector. 28 26

N. Brown, op. cit., 2003, p. 41; B.L. Garcia – C.F. Suzor, op. cit.,

p. 37. M. al-Moqatei, “Introducing Islamic law in the Arab Gulf States”, in $UDE/DZ4XDUWHUO\, vol. 4, no. 2, Brill, Leiden 1989, p. 140; K.O. Salih, “The 1938 Kuwait legislative council”, in Middle Eastern Studies, vol. 28, no. 1, Taylor & Francis, Abingdon 1992, pp. 66–100. 28 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 173. In December 1938 the Parliament tried to arrogate to itself the prerogative to allocate resources from the oil trade. In response the king decided to dis27

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Iraq. The Iraqi monarchical constitution, based on the English model, was drafted by a Constituent Assembly elected by male suffrage in March 1924, thus implementing the principle of popular representation. Parliament had to act as a counterweight to the executive power, hereditary, and also exercised by prince Fayṣal ibn al-Ḥusayn ibn ʿAlī (1883–1933). 29 The Iraqi constitution established the royal appointment of ministers and their accountability to the Parliament. As head of state, the king promulgated the laws, supervised their application and could issue decrees. However, the power to issue decrees was limited by the fact that the drafts had to be prepared together with the Prime Minister or other Ministers. They could enter into force only if approved by the government and issued during any period when the parliamentary sessions were not scheduled. The most significant innovation of the constitution was the creation of a Supreme Court, not only invested by traditional judicial powers but also by the function of interpretation of the constitution. Thus, the Court was able to decide over the rights and freedoms guaranteed to citizens (articles 7–18), including: habeas corpus, inviolability of the house and correspondence, freedom of the press, right of association within the limits set by law. 30 Personal liberty and security of the property were declared inviolable principles, whereas the arrest and the control of associations and the press were subjected to legal restrictions. The exile, torture, forced labor and unlawful expropriation were prohibited in any case. The constitution was amended in 1930 following the revision of the

solve the assembly. However, Kuwait has experienced an early parliamentary activity. 29 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 42. See also: N.G. Davidson, “The Constitution of Iraq”, in Journal of Legislation and Comparative Law, vol. 7, no. 1, Cambridge University Press, Cambridge 1925, pp. 51–52; P.Q. Wright, “The Government of Iraq”, in 7KH$PHULFDQ Political Science Review, vol. 20, no. 4, American Political Sciences Association, Washington 1926, pp. 743–769; A. Giannini, op. cit., pp. 142–170. 30 N.G. Davidson, op. cit., p. 45.

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 161 Treaty on Iraq’s relations with Great Britain. 31 Iraq played a pioneering role in the development of Islamic constitutionalism for several reasons: the constitution established a Parliament with real powers, while the constitutional review was carried out by the Supreme Court. 32 Nevertheless, the political system was subservient to foreign interests and did really care for national welfare. In addition, the period between 1941 and 1958 was characterized by a strong instability and the strengthening of the political role of the army. However, the constitution survived those events, but was repealed following the attempt to create the federal union between Iraq and Jordan. In that occasion a new constitution was issued, but it was already repealed in July 1958. Syria. With the entry into force of the international mandate, issued by the League of Nations to France, a constitution was adopted in 1930. The Constituent Assembly was elected in April 1928 and in June of the same year was convened its first meeting there. The Syrian constitution, modelled on the example of the French one, instituted an Assembly, thus implementing the principle of popular representation. The state was re-founded on republican basis. The fundamental law also declared the indivisibility of the country and stated that the head of state was to be Muslim (article 3). The government was based on parliamentarianism in favor of the President who was elected by the delegates for five years. 33 Article 14 conferred on citizens a right to petition: anyone could address the king, Parliament and any other public authority, a petition in order to make criticisms and raise questions of public interest. The limit was that the petition had non-binding character. 32 The Iraqi Supreme Court was made up of nine members, five of them, including the President, were chosen from among the senators, while the other four were high-ranking judges. Thus, the Court was an expression of the legislature and the judiciary. The senators were appointed, not elected, although the executive branch participated to some extent the exercise of constitutional power to control laws. See also: N. Brown, “Constitutionalism, authoritarianism and imperialism in Iraq”, in Drake Law Review, vol. 95, Drake Law School, Des Moines 2005, pp. 924–925. 33 B.L. Garcia – C.F. Suzor, op. cit., p. 83. The drafting process was in the work of three separate subcommittees to which was assigned the 31

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The office was not renewable, and the outgoing President could not stand before a five-year interval. The ministers were appointed on the recommendation of the Prime Minister; the government was formed by seven persons accountable to the Parliament. The powers of the President were those of every parliamentary system: he could enter into the agreements and international treaties, except those related to taxation and security for which it was necessary the intervention of Parliament. The President could also enact laws and decrees and dissolve the Parliament. The counter signature on the acts of the government made the President politically irresponsible. 34 Parliament was unicameral and was elected every four years by secret ballot, limited only to male citizens of twentyone years. For the constitutional review, the procedure could be initiated by a third of the delegates or at the request of the President and of Ministers, and after the approval of the chambers with two thirds majority of MPs. The Syrian political system repealed all the laws at odds with the French mandate, particularly those with regard to security and foreign affairs (article 116). The French authorities imposed mainly on two points: the borders were delineated according to their will and the local administration model responded to the decentralization policy. 35

task of studying in detail the constitutions of France and Belgium for the European countries and those of Egypt, Iraq, Lebanon, Iran regarding the Islamic world. Also, the Ottoman Constitution was taken into account. 34 M. Khadduri stressed that the indivisible character of the country (Art. 2) was deemed illegal by the French High Commissioner that believed it was in conflict with international agreements and the factual situation. The High Commissioner, in fact, did not take account of the state of affairs prior to the declaration of the mandate and, therefore, denied the original unity of the whole %LOćGDO-6KćP. M. Khadduri, “Constitutional development in Syria: with emphasis on the Constitution of 1950”, in Middle East Journal, vol. 5, no. 2, Middle East Institute, Washington 1951, p. 143. See: A. Giannini, op. cit., pp. 212–220. 35 N. Brown, op. cit., 2003, p. 68; B.L. Garcia – C.F. Suzor, op. cit., p. 87.

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 163 Lebanon. The Lebanese constitution, which recognized the mandate given to France by the League of Nations, was adopted in 1926. The state was founded as a parliamentary republic. The Assembly was bicameral and was composed by the nominative upper house (Majlis al-6KX\ŠNK) and lower chamber whose members were elected. 36 Two main changes were introduced in 1927, with the elimination of the upper house, merged in the lower, and again in 1929, with the strengthening of the role of the presidency at the expense of the legislative power. In the following two decades the constitution was amended based on the recommendation of the French government. The executive power was divided between the President, appointed for six years by the lower house, and the ministers, chosen by the President and responsible for their acts. Legislative power was attributed to the Parliament, elected for four years by free elections. The President, irresponsible for the acts he adopted, stared at the sessions of the Parliament and also promulgated laws. Since the independence, achieved in 1943, the constitution remained unchanged until 1990, mainly because of the lack of political stability and as a result of the 1975 civil war. 2.2. Constitutions as tools for the affirmation of sovereignty The third wave of constitutionalism developed when Muslim states, now independent, intended to assert their sovereignty. In 1970, the only two states even without a written constitution were those who had not suffered direct colonial rule: Saudi Arabia and Oman. In other countries, since the 1950s, were constituted revolutionary regimes that eliminated the existing guarantees and entrusted the executive and the legislative powers to revolutionary councils, in order to create an ideological institutional order and break down class differences, as part of a new nation building ideal. 37 S. Mahmassani, op. cit., p. 243; A. Giannini, op. cit., pp. 202–212; A. Baaklini, G. Denoeux, R. Springborg, op. cit., pp. 81–82. 37 In the early twentieth century the political system of Saudi Arabia was marked by the Charter Ḥijāz promulgated in 1926. Even before its entry into force, an Advisory Council had been set up in Mecca. At first its 15 members were chosen from among ʰXODPćʯ, nobles and merchants; later two deputies representing the scholars, a delegates representing the 36

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Morocco. The constitution was adopted in 1962, after the declaration of independence in 1956. Pursuant to article 24, the king had the right to appoint the Prime Minister and the ministers, making them responsible for their acts. 38 According to article 25, the king supervised the Council of Ministers, thus becoming the real holder of the executive and legislative powers. He could also initiate the procedure to amend the constitution. Under article 39, the sovereign inaugurated the sessions of Parliament, whereas, on the basis of article 70 he could request a second reading of the acts already approved by the Parliament. Article 72 gave him the right to hold a referendum upon the laws passed by Parliament, while article 110 gave the king the power to take all the measures for the proper functioning of the institutions. Also, the king ran the legislative power when the Parliament was not convened. Finally, he could dissolve the lower house, after consultation with the Constitutional Council, but not before one year from its election. The Parliament was bicameral, consisting of the Majlis alQXZZćE as the lower chamber, and Majlis al-0XVWDVKDUĪQD. 39 Laws passed by the Constitutional Council to verify their constitutionality (article 43). The Parliament was entitled to legislate upon certain matters such as individual and collective rights, fundamental prinmerchants and twelve deputies representing the neighborhoods of the city; three other council members were chosen by the king. Similar councils were organized in other cities such as Madīna, Jeddah and al-Ṭāʾif. The 1926 constitution also established a Majlis al-6KŠUć, composed in 1927 by four members chosen by the community, four appointed by the government, including two representatives of Najd, and the heir to the throne who served as President. In 1952 the number of delegates was increased to 20 and in 1955 to 25. A. Giannini, op. cit., pp. 11, 127–135. 38 A. Maliki, al-:DMĪ] IĪoO-TćQŠQDO-GXVWŠUĪ ZDpO-PXʯDVVDVćW DO-VL\ćVL\\D, alMaṭbaʿa wa’l-Wirāqat al-Waṭaniyya, Marrakesh 2001, pp. 305–306. The king Ḥasan II (1929–1999) adopted the following decrees: appointment of the Prime Minister and his government (no. 24), state of emergency (n. 35), dissolution of parliament (n. 77), appointment of judges (n. 84), appointment of the President of the Supreme Court of Justice (n. 91). 39 Ibid., p. 313; A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 112.

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 165 ciples of civil and criminal law, the protection of the citizens against civil and military authorities (article 48). Parliament could also censor the acts issued by the government but can not remove its given trust. The unique means to counterbalance the executive power was rising oral or written questions, starting commissions of inquiry and addressing motions of censure (article 81). The relation between the judiciary and the king was unbalanced, although article 82 established the principle of separation of powers and independence of the judiciary. The king appointed the judges and the high officers of the judiciary. In addition, the sentences were issued in his name. 40 The king ruled by decree, after consultation with the presidents of the chambers of the Parliament due to a state of emergency. Circumstances that led to this decision had to be communicated to people in public speeches but could not be challenged by the judges (article 35). In 1970 the constitution was amended to reduce the power of Parliament and the government for the king’s advantage. The bicameral system was abolished and replaced by unicameralism, whose members were elected for one third. In March of 1972, after the attempt of coup d’etat of July 19, 1971 a new constitution was adopted. The text introduced the direct election of two thirds of delegates and expanded the power of the government and Prime Minister. 41 In 1980 a referendum extended the duration of the government from four to six years Finally in 1992, a new constitution was submitted to the popular vote. The new fundamental law included, for the first time, the Parliament’s right to vote no confidence to the government appointed by the king, but after the Prime Minister’s first speech to both chambers. The deputies were recognized the right to ask questions to the ministers who had to reply within 20 days. All the laws were promulgated only by the king within thirty days. Finally, the composition of the Constitutional Council substantially changed: now it was composed by nine

A. Maliki, op. cit., p. 319. These prerogatives belonged to the king (article 24), who appointed the Prime Minister and other members of the government. 41 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 116. 40

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members, four appointed by the Parliament and five appointed by the king, including the president. Algeria. Since Algeria was part of the metropolitan territory of France, Paris tried to dissuade the Algerian government from adopting a constitution. On this point there was a deep clash between the occupying forces and the National Liberation Front (NLF), the architect of the revolution of 1954. The violent breakdown between the parties helped to establish the new ideological basis for the state, more effectively than a Constitution would have. After the declaration of independence in 1962, the first constitution outlining a presidential system, legalizing the single party and generally giving the country a strong socialist ideology, was adopted. 42 Between 1975 and 1976 the country experienced the most solid institutional developments, thanks to President Aḥmad ibn Ballā (1916–2012), known as Ben Bella. The successor, Huwārī Bū Madīn (1932–1978), or Boumedienne, favored the creation of an Assembly and established the elective nature of the highest state offices. In 1979 Shādhlī ibn Jadīd (1929–), known as Benjadid, was appointed President through this procedure: the NLF proposed a candidate who had to be confirmed by referendum. In 1989, a new constitution, keeping the principles of socialism, liberalized the party system and eliminated the monopoly of the NLF. The role of the President, however, remained unchanged. In 1996, following clashes between the establishment and the largest Islamist party, the Islamic Salvation Front (ISF), was adopted a constitution which envisaged a political opening but, on the other hand, forbade the formation of religious groups (article 42). Although the new constitution made some concessions to the Islamist forces, forbade practices contrary to religious morality and the values of the revolution (article 9.3). On the basis of this charter, still in force, the President has powers in legislative matters. Indeed, he appoints a third of the members of the upper house. In addition, since the laws must be approved by a majority of at least three

N. Brown, op. cit., 2003, pp. 72–73; S. Arjomand, op. cit., 1992, p. 62; AA. VV., op. cit., pp. 91–101; B. Cubertafond, /p$OJÆULHFRQWHPSRUDLQH, Presses Universitaires de France, Paris 1981. 42

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 167 quarters of the senators, as well as by the deputies of the lower house, the government has an enduring veto power. 43 Tunisia. The French protectorate ended in 1956, when was elected a Constituent Assembly, heavily influenced by the leader who led the country’s declaration of independence, Ḥabīb Abū Ruqayba (1903–2000), known as Bourghiba. At first the monarchy was preserved, but the 1959 constitution established a presidential republic. 44 The Parliament’s supervisory power over the president was weak. It was up to the President to appoint all ministers, and he was not responsible in front of the Assembly. Both the executive and the legislative powers were concentrated in the hands of the President. With the amendments of the 1971 constitution, some initial counterweights were introduced. 45 On the one hand, the Parliament could vote, with a 2/3 majority of its members, the removal of a minister. On the other hand, however, the mandate of the President became a lifetime. The change of power, then, occurred when the then Prime Minister Zayn al-ʿĀbidīn ibn ʿAlī (1936–), or Ben ʿAlī, making leverage on the old age of Bourghiba, declared his inability to perform his functions. After these events, followed a period of political opening, which involved some reforms, including the establishment of two terms of five years at most for the President and the establishment of the Constitutional Council, created by decree in 1987. In 1996, Ben ʿAlī adopted further reforms fixing a maximum age of 70 years to forward the candidacy for President together with having directed a party for five years at least. Libya. The first constitution was adopted in 1951, soon after independence. The basic law sanctioned a form of monarchy and a federal system, not only on the basis of ethnic differences, but also because of demographic imbalances. In 1963, the constitution underwent some changes that reduced the autonomy of the regions and conceded more powers to the sovereign. In 1969, the monar43 44

N. Brown, op. cit., 2003, pp. 74–75. N. Brown, op. cit., 2002, p. 76; B.L. Garcia – C.F. Suzor, op. cit.,

p. 283. See also: M. Bouali, Introduction à l’histoire constitutionnelle de la Tunisie, En-Najah, Tunis 1963. 45

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chy was overthrown by a group of soldiers led by Muʿammar alQadhdhāfī (1942–2011). Following this coup d’état, a provisional constitution of 37 articles was promulgated which fixed general rules of the conduction of the state, under the leadership of the Revolutionary Command Council. The ideological character of this revolution, which was guided by nationalist and socialist ideals, posed great limits to rights and freedoms. In 1976, with the adoption of a Constitutional Declaration, the Qurʾān became the fundamental law of the state (article 2). Other sources of law, including Islamic jurisprudence (fiqh) were rejected. The biggest innovation of this Declaration was the creation of a network of popular committees, modelled on the basis of VKŠUć, through which the Libyan people exercised, at least in theory, a form of direct democracy. 46 Egypt. During the 1950s, the movement of Free Officers adopted several Constitutional Declarations inspired by the values of socialism. These laws, although did not have the legal nature of constitutions, marked a clear break with the previous regimes, as they stared guidelines for policy and indicated the means to safeguard the revolutionary objectives and the republican regime. 47 Even more importantly, none of these documents had a real constitutional intent nor established concrete measures to counterbalance the public authorities. 48 The Free Officers began to enact constitutional declarations since 1952. The one promulgated in February 1953 by President Muḥammad Najīb (1904–1983) was particularly important since it marked the beginning of a transitional phase. The President, thus, dissolved the parties and fixed a term of three years for the construction of a democratic constitutional system. Another Declaration, however, attributed the executive N. Anderson, “Islamic Law in Africa”, in -RXUQDO RI $IULFDQ /DZ, vol. 21, no. 2, Cambridge University Press, Cambridge 1977, p. 137. 47 The objectives were: contrasting imperialism and capitalism, building a strong national army, the realization of social justice, a peaceful transition to democracy. The liberal system accepted in the 1923 Constitution was radically abolished and deemed incompatible with any economic development oriented, in theory, towards a social economy and a strong welfarestate. 48 N. Brown, op. cit., 2003, p. 40. 46

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 169 function to the leaders of the Free Officers revolution, while the owner of legislative power was to the Council of Ministers. 49 Only in 1956 was a real constitution adopted. It was composed by an introduction and six chapters encompassing the basic principles, rights and duties pertaining to citizens, national defense policies and some transitional rules. The first chapter declared Egypt an “Arab and democratic Republic”, the Egyptian people as part of the Arab nation and the holder of sovereignty. In addition, Arabic was listed as official language and Islam as the state religion. The second chapter contained rules relating to the family, whose pillars were religion, ethics and patriotism. On the economic front, private initiative was encouraged, although with the following social functions: ownership of the land was allowed, but subdivision was prohibited. The third chapter, listing a number of general freedoms, guaranteed to citizens equality, regardless of sex, race, language, religion, personal freedom, inviolability of houses, freedom of belief and opinion, freedom of the press and association, and lastly the right to work. The fourth chapter provided for political representation, but with a strengthening of the executive power, held by the President of the Republic. 50 The bicameral Parliament was attributed the power to provide legislation. Formally the Parliament appointed the President, voting by absolute majority of its members; thereafter the people were called upon to decide by referendum. The presidential mandate lasted seven years and each candidate had to be Egyptian by both parents and commit to act in accordance with the objectives of the revolution. Among his duties, the President appointed and removed ministers and deputy minisS. Mahmassani, op. cit., p. 208. In January 1953 a committee of 50 members was formed to draft a constitution in line with the aims of the revolution of the Free Officers. In June of the same year the monarchy was declared lapsed and the Republic proclaimed. 50 The Parliament, elected by the people through general elections was called Majlis al-8PPD. It lasted in office for five years. The only requirement to become deputy was the completion of the thirtieth birthday. Moreover the legislative initiative was ascribed firstly to the President and lastly to the deputies. The President was chosen from the high ranks of the single state party. 49

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ters. The former were responsible to the Parliament which they received the trust from. The President had the power to dissolve Parliament and the local assemblies. Ultimately, the constitution outlined a semi-presidential system in which the President was the supreme executive office flanked by the government which was politically responsible before the Parliament. The fourth chapter lastly attributed to the President the direction of the Council of Defence and enshrined the principle of judicial independence. Judges could not be removed from their office, except by an internal act of the judiciary. The Egyptian constitution was rigid and, thus, only the President or 1/3 of the deputies were able to amend it. After the initiative was approved by the Parliament, an interval of six months was needed before discussing the proposal. The constitutional changes had to be approved in two votes and ratified by referendum. The same constitution entered into force after popular approval on 23 June 1956. This constitution, however, proved detrimental to many political rights, since it prohibited the formation of parties, other than the official ones. In fact, these restrictions were justified by the regime’s propaganda as steps to complete the political education of the people and were, in theory, only temporary. 51 The constitution adopted by Jamāl ʿAbd al-Nāṣir, or Nasser (1918–1970), and issued in September 1962, laid the foundations for a new ideology based on Arab nationalism, the pan-Arab unity, socialism and democracy as twin pillars of the state. This constitution nationalized the economic system and, at the same time, tried to give broader representation to the weaker social classes, stating that half of deputies had to be selected among workers and farmers. Syria. The Syrian constitution was adopted on 5 September 1950 after the coup d’état against Shukrī al-Quwwatlī (1891–1967) by Ḥusnī al-Za‘īm (1897–1949), in turn overthrown by Adīb alShīshaklī (1909–1964). 52 The basic law was a modern one, introS. Mahmassani, op. cit., p. 211. Article 192 of the 1956 constitution stated that citizens formed a national union which had to achieve the aims of the revolution. 52 M. Khadduri, op. cit., pp. 137–160; B.L. Garcia – C.F. Suzor, op. cit., p. 93. 51

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 171 duced by a preamble and made up by 166 articles. 53 The preamble stressed the principles of equality, freedom and social justice. Compared to the 1930 constitution, no institutional changes were introduced: the state was appealed “independent Arab republic” and termed as democratic, representative and part of the umma. Not only Islam was qualified as the state religion, but also Islamic law was the main source of legislation. About legislative power, the constitution provided for a Chamber of Deputies, elected for a term of four years by all adult citizens. The legislative initiative was up to the Parliament, with the only exception of economic issues, or to the President of the Republic in accordance with the government. Executive power was attributed to the President and the Council of Ministers. The President, elected for a term of five years by the Parliament, could not be elected for a second time. The ministers were chosen by the President and had to receive the trust by deputies. The President could veto on the acts and could dissolve the Parliament in some special cases. Moreover, within 19 days, the President was held to sign the laws or to raise the issue of constitutionalism before the Supreme Court. He was responsible for crimes against the constitution, high treason and ordinary crimes but he could only be tried by the Supreme Court. 54 The article of the 1930 constitution was appealed which stated Islam as requirements to the President. 55 The government was composed of the Prime Minister and an indefinite number of ministers, who could be deputies. 56 The Prime Minister asked for the vote of confidence in Parliament and was responsible before it. The judiciary was independent and operated under the direction of the Superior Council. The judiciary was S. Mahmassani, op. cit., p. 279. Ibid., p. 280. 55 M. Khadduri, op. cit., p. 152. For Khadduri, there was a relationship between the elimination of the clause of belonging to Islam for the President and that of setting VKDUĪʰa as source of legislation. The Christian deputies accepted the second law after obtaining removal of the first. 56 The President of the Republic was responsible only for those laws which he signed and promulgated after ascertaining the absence of procedural errors. 53 54

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formed by the ordinary courts, the Court of Cassation and the Supreme Court. The latter consisted of seven judges, appointed for five years, chosen by Parliament from among 14 influential people, with possibility of re-election. The constitution contained 28 articles related to citizens’ rights. They were assured freedom of religion, confession and to follow their personal status. Popular sovereignty and individual freedoms, as well as the principle of equality, were enshrined in the constitution, which also listed a number of economic rights: the right to work and social justice (article 21). The property could be public and private, and the state, as well as the citizens, could own property within limits imposed by law. Article 23 sanctioned the land confiscation, which nevertheless had to be nurtured and exploited and not kept in a state of neglect. On employment, the article 26 obliged the state to take necessary steps to promote full employment. Moreover, trade unions were allowed, while forced labor was illegal, except in case of war. 57 Education was a right guaranteed to every citizen. Primary school was free and compulsory, secondary education was free but not mandatory. Military service was to be regarded as a sacred duty, while marriage, a basic element of society, enjoyed special protection from the state. 58 This section of the constitution was protected against amendments. Any constitutional reforms were to be advanced by the President of the Republic, in agreement with the government, or by 1/3 of the deputies. The Parliament analysed the proposed amendment which was approved only by an absolute majority. If rejected, the amendments could not be filed within a year. If approved, the Parliament began to discuss the reform during the following six months. A majority of 2/3 of the deputies was required to enforce them. Jordan. The first constitution of Trans-Jordan was adopted in 1947 by king ʿAbd Allāh ibn al-Ḥusayn (1882–1951) replacing the Organic Act of 1928. In turn, the 1947 constitution was replaced M. Khadduri, op. cit., p. 156; B.L. Garcia – C.F. Suzor, op. cit., pp. 94–95. 58 The educational system had to shape a generation of young Syrians with solid national ethic, firm faith in God and full of pride for their Arab heritage (article 28). 57

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 173 with the 1952 fundamental law, still enforced after the reforms approved in 1954, 1955, 1958 and 1960. Composed by 131 articles, the new constitution maintained the monarchy over time, established the separation of powers and listed a catalogue of citizens’ rights. The state was now qualified as Arabic, Islam was the official religion and the people of Jordan became part of the Arab nation. 59 The Parliament was made up of a fully elected lower house and a higher house appointed by the king who also appointed the President of the lower house. 60 In 1950, as a result of the first Arab-Israeli war of 1948, the king ʿAbd Allāh annexed the West Bank and the eastern part of Jerusalem, changed the name to Jordan and adopted a new electoral law that rose up to forty seats in the Parliament. 61 In July 1951 the king was assassinated and succeeded by Ṭalāl ibn ʿAbd Allāh (1909–1972), his son. During his reign, in 1952, Ṭalāl adopted a new constitution. The sovereign, affected by schizophrenia, proved incapable of governing and, from the clash between the Parliament and some members of the government, an amendment to the constitution was adopted. This article allowed the Parliament to withdraw the trust given to the government, with the vote of two thirds of deputies. However, this reform was weakened soon, as it required the simple majority of the deputies. Other articles were add-

A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 137; A. Giannini, op. cit., pp. 385–405. The Organic Law of 1928, in turn, was adopted only be a result of the Treaty signed in the previous year with Britain with which Jordan renounced to exercise its sovereignty in sectorsas finance. Moreover, the Parliament possessed limited powers in comparison, for example, with that of Iraq. 60 B.L. Garcia – C.F. Suzor, op. cit., p. 178. According to the electoral law adopted shortly after the constitution, the lower house, elected with a four-year term, was composed of 20 members, of whom 12 were Muslims, 4 Christians, 2 representatives of the tribes, two Circassians and Chechens. The upper house consisted of ten personalities among the people known for reliability and wisdom. 61 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 138. 59

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ed to the constitution, establishing the High Court and strengthening the rights and freedoms of citizens. 62 The new constitution succeeded to ensure an institutional balance, even for the short period between its adoption and 1957, when a wave of nationalist sentiments resulted in strong opposition to the king. In 1958 the two hāshimite monarchies of Jordan and Iraq attempted a unification, although keeping their own international legal personalities. The union, however, had one government presided over by the king of Iraq or, in his absence, by that of Jordan. 63 This experiment lasted a few months. On 14 July 1958 a revolution led to the government of Iraq ʿAbd al-Karīm al-Qāsim who abolished the monarchy. Iraq. Upon delegation of power by the Supreme Command of the Armed Force, the Parliament (Majlis al-6L\ćGD) repealed the constitution in force, replacing it with a temporary basic law which changed the institutional framework, turning the country into an independent Republic, “integral part of the Arab and Muslim nation”. Being a provisional constitution, the institutions were not regulated in detail: the executive belonged to the President of the Republic, appointed by the Parliament, and to the ministers. Holder of the legislative power was the Council of Ministers. 64 Between 1958 and 1970, Iraq experienced such a period of political instability that only temporary constitutions were adopted. The last remained in force until the fall of Ṣaddām Ḥusayn’s regime (1937– 2006). This constitution recognized the autonomous Kurdish national identity but did not specify the manner of exercising this autonomous power on the part of its agents. Moreover, the exercise of individual freedom was restricted by law and by the ideology of the regime. Institutionally, the Revolutionary Command Council, an expression of Ba‘th party monopolized all the political offices and the General Secretary of the party automatically became PresiN. Brown, op. cit., 2002, p. 49. S. Mahmassani, op. cit., p. 303; N. Brown, op. cit., 2005, p. 927. This experiment lasted a few months. On 14 July 1958 a revolution led to the government of Iraq ʿAbd al-Karim al-Qasim who abolished the monarchy. 64 N. Brown, op. cit., pp. 86–87. 62 63

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 175 dent of the Republic. 65 Between 1990 and 1995, some amendments strengthened the role of the President: his election being ratified by referendum, the Revolutionary Command Council became unable to remove him from office. 66 2.3. Constitutional developments in the Arabian Peninsula At the end of the twentieth century, the states of the Arabian Peninsula, although reluctant to adopt constitutions, have introduced some reforms to institutional framework of the state. In this area, original experiments were product by the adoption of fundamental laws as in the case of Saudi Arabia and Oman, or by the enactment of provisional constitutions, as in the United Arab Emirates. The most significant result was the restoration of parliamentary life in the two monarchical countries, Kuwait (1992) and Baḥrayn (2002). The latter adopted its first constitution in the early 1970s. 67 Yemen, whose system is republican, just after the end of the civil war of 1994, reconfirmed the constitution of 1991. In Kuwait, in 1999, the Parliament was dissolved by order of the Amīr but new elections were held within sixty days as established by the constitution. 68 A common feature of Kuwait and Saudi Arabia was an irregular suc-

Under article 26, the freedom of opinion, press and thought, the formation of political parties and trade unions, were exercised only in accordance with the constitutional provisions. 66 Other amendments provide for insignificant concessions such as forming new parties, provided that this would not adversely affect the authority of the regime. 67 M. Herb, “Princes and Parliaments in the Arab World”, in Middle East Journal, vol. 58, no. 3, Middle East Institute, Washington 2004, pp. 367–384; W.M. Ballantyne, “The States of the GCC: Source of law, the Sharia and the extent to which it applies”, in $UDE /DZ 4XDUWHUO\, vol. 1, no. 1, Brill, Leiden 1985, pp. 3–18; A.A Saif, Constitutionalism in the Gulf States, Gulf Research Center, Dubai 2004. 68 M. Herb, “Emirs and Parliaments in the Gulf”, in Journal of Democracy, vol. 13, no. 4, John Hopkins University Press, Baltimore 2002, pp. 41–47. 65

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cession to head of the state because of internal divisions to the ruling families. 69 The countries of the Arabian Peninsula stand in a very unusual situation compared to other Muslim countries which resemble for the authoritarian nature but from which differ for being “newly emergent post-traditional states”. The transformation of the traditional system of governance to a constitutional regime occurred gradually: the discovery of oil fields and consequent accumulation of wealth scratched the compactness of the ruling families but also prompted political modernization, also because of foreign pressure. 70 The idea that the Gulf countries would be refractory to any form of liberalization or, at most, that they would be pushed towards the reforms only from the outside is not based. 71 On the other side, it is undeniable that the constitutional process caused the abandonment of traditional concepts of sovereignty and power and the reception of the modern principle of sovereignty of the people. Legitimacy today derives only from state institutions, especially from the Parliament, which holds legislative power and serves as a counterweight to the executive. 72 The reforms introduced in the Gulf countries followed a topdown or state-driven process, whose particularity is to have mediated between the external influence and the traditional Islamic roots. The ruling dynasties, slowly including society in the decision-

A. Kapiszewski, “Elections and parliamentary activity in the GCC: broadening political participation in the Gulf monarchies”, in A. Khalaf – G. Luciani (edited by), Constitutional reform and political participation in the Gulf, Gulf Research Center, Dubai 2006, p. 100; G. Alnajjar, “The challenges facing Kuwaiti democracy”, in Middle East Journal, vol. 54, no. 2, Middle East Institute, Washington 2000, pp. 242. 70 J.E. Peterson, 7KH$UDE*XOI6WDWHV6WHSVWRZDUGVSROLWLFDOSDUWLFLSDWLRQ, Praeger, New York 1988, p. 2. 71 G. Luciani, “Introduction”, in A. Khalaf – G. Luciani (edited by), op. cit., p. 7. 72 “Political reform measures from a domestic GCC perspective”, in A. Khalaf, G. Luciani (edited by), op. cit., p. 18. 69

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 177 making, benefited from the expansion of their social base. 73 Like other Muslim countries, the Gulf states went through three constitutional cycles during which adopted constitutions or basic laws (TćQŠQDVćVĪ or QLʲćPDVćVĪ) in both cases granted from above. Consequently, these constitutions lack restricting instruments of government, such as the institution of mutual trust between legislative and executive powers. In the legal systems of the Gulf countries, the ministers are responsible personally, never collectively for the actions taken. The issue of trust can not be raised against the Prime Minister. 74 First Cycle – between 1960 and 1970 KuZait. A group of lawyers, members of a Constituent Assembly Committee, including the famous Egypian ʿAbd al-Razzāq alSanhūrī (1857–1971), drew up a new constitution. 75 This process involved several stages: in 1961 an electoral law was adopted dividing the country into ten constituencies, each one represented by two delegates, and conferring the right to vote to all citizens over thirty-one years. Following the election, the Assembly that drafted the constitution convened, then promulgated by the king on November 11, 1962. 76 Article 2 defines Islam as the state religion and considers the VKDUĪʰa as the main source of legislation. The political regime is defined as democratic, while the sovereignty belongs to the people, which is the source of power (article 6). Article 7 enshrines the principles of justice, freedom and equality, regarded as pillars of the state whose base is the family (article 9). The third title lists the rights and freedoms, such as the principle of no punDrafting constitutions have not solved the monopoly of decisionmaking by the ruling class. Conversely there reforms merged the despotic power of the pre-modern regimes to the bureaucratic one proper of the modern state. 74 G. Parolin, “Generations of Gulf Constitutions: paths and perspectives”, in A. Khalaf – G. Luciani (edited by), op. cit., p. 52. 75 G. Parolin, op. cit., p. 53. 76 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 175. In June 1962 an agreement between Britain and Kuwait put an end to British rule began in 1899. 73

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ishment without law (article 32), freedom of expression and research within the limit of the law. 77 Holders of the legislative power are the Amīr and the Parliament composed by 50 members elected for a term of four years, while the executive power belongs to the government, made by the Amīr and his ministers (article 52). The deputies must possess the nationality of the country, enjoy full rights and be at least 30 years. They must also be able to speak Arabic. The Parliament is in charge for the adoption of the budget, control over foreign policy, ratification of international treaties, declaration of war and peace. The government as a whole should not get the vote of confidence from Parliament, but the individual ministers can be discharged, when a motion of no-confidence is issued by at least ten deputies and is approved by a majority of Parliament (article 101). 78 Between 1985 and 1986 this possibility was averted by the timely resignation of the Minister of Justice and the dissolution of the Assembly. Despite these limitations, the Kuwaiti Parliament managed to exert strong pressure on the government. The members of Article. 2, in fact, follows the expression of the Egyptian Constitution of 1972. In 1999, were presented unsuccessfully amendments of this article to make the VKDUĪʰa “the” source of lawmaking. A. Kapiszewski, op. cit., p. 101. 78 A. Baaklini, G. Denoeux, R. Springborg, op. cit., p. 169; J.E. Peterson, op. cit., pp. 39–41. The first Assembly was created in 1921 under the impetus of the notables and merchants who sought to influence the succession to power. There were twelve elected before the reduction in the number of seats and the dissolution of the council. A second Assembly, called Majlis al-umma al-WDVKUĪʰĪ, consisting of 14 representatives of 150 families, was elected in June 1938 with the approval of Shaykh Aḥmad (1885–1950), member of the family Āl Ṣabāḥ, tenth governor of Kuwait. But in December of that year, this Assembly was dissolved and new elections were held. An electoral body, made up of 400 citizens, elected their representatives. Suspended in 1976, the Assembly was restored between 1981 and 1986 after a new electoral law was adopted increasing from 10 to 25 districts, but reducing from 5 to 2 candidates in each district. In 1986, the Parliament was suspended again and were amended some articles of the constitution. 77

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 179 the dynasty in power, however, tends to occupy the main ministries: Prime Minister, Defence, Foreign Affairs and Interior. The Amīr promotes laws and may veto the drafts adopted by Parliament. But if the members vote the same text by a majority of two thirds during the same session or a simple majority in a later session, the will of Parliament prevails. The Amīr may dissolve the Parliament (art. 107). In this case, new elections have to be called within two months. 79 Qaʞar. Two constitutions were adopted between 1970 and 1972, the first following the declaration of independence. Both have established the Arab, Islamic and democratic character of the state and (article 1) and have considered it (not the people) as the source of sovereignty. 80 The constitution provided for the formation of a Majlis al-6KŠUć partially elected, composed of 20 members, increased to 30 in 1975. The Parliament discussed and approved draft laws (articles 40–64) but could not propose draft laws. The Amīr, holder of executive and legislative powers, should behave according to Islamic precepts, both in private life and in the public sphere. He became the guardian of social values, exercising a control on mass media, education and status of women. The Amīr appointed and removed ministers (article 62) and dissolved the Council of Ministers (article 61). 81 United Arab Emirates. On 18 July 1971 following the declaration of independence, the UAE adopted a constitution, which came into force provisionally in December of the same year, and only in 1996 was finalised. The institutional framework provides for an independent and sovereign federal system, formed by the J.E. Peterson, op. cit., p. 55; M. Herb, op. cit., 2004, p. 374. A similar event happened in 1994 when the Ministers of Internal Affairs and Defense, members of the royal family, have resigned because they were in conflict with deputies. In 1999 another member of the dynasty was forced to resign from the government as a result of a motion. 80 G. Parolin, op. cit., p. 57; L. Bahry, “Elections in Qaṭar: a window of democracy opens in the Gulf”, in Middle East Policy, vol. 6, no. 4, Willey-Blackwell, Hoboken 1999, p. 118–127; A.A. Sayf, op. cit., p. 13. 81 The Assembly, originally modelled on the example of Kuwait, was made up of 20 elected members and ministers. 79

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emirates of Abu Dhabi, Dubai, al-Shārqa, ʿAjmān, Umm alQuwain, al-Fujayra, Raʾs al-Khayma. The constitutional framework outlines a federation of monarchies, but other states may apply to join the Union. The first President of the UAE was Zayd ibn Sulṭān Āl Nahyān (1918–2004). He was succeeded by his son, Khalīfa ibn Zayd Āl Nahyān (1948–). Union’s aim is to maintain the independence and sovereignty of the members. It also forms a single economic and commercial market (article 11), while foreign policy is inspired by the Arab and Islamic causes, in full respect of the Charter of the United Nations (article 12). The main Union’s institutions are the Supreme Council of the Union, the President, the Council of Ministers, the National Assembly and the Judiciary (article 45). The Supreme Council is formed by the monarchs of the seven members, who appoint a Chairman and also his deputy among themselves. The Assembly consists of forty members elected by the Amīr of each emirates with a two-year term. Its task, rather limited, is only to discuss the bills and indicate the proposed amendments (article 121). 82 Baʚrayn. The constitution was adopted in 1973 by the Constituent Assembly elected six months after the declaration of independence in December 1971. The Assembly was composed of 42 members, 22 of whom were elected and 20 appointed. Of these, eight were chosen by the Amīr and twelve by his Cabinet. 83 The election of 22 members was done by the first national vote, although it has held with suffrage restricted to male citizens above 20 years. The Assembly’s drafting work, facilitated by the advice of an envoy of the government of Kuwait, ended with the publication of a constitutional text of 108 articles, which was then ratified by decree of the Amīr. The constitution enshrined the principle of separation of powers. The Parliament was made up of 30 members elected for four years. The deputies did not initiate legislation, but the government could indicate areas that need work and suggest the most G.N. Sfeir, “Sources of law and the issue of legitimacy and rights”, in Middle East Journal, vol. 42, no. 3, Middle East Institute, Washington 1988, pp. 436–437. 83 A.A. Saif, op. cit., p. 11; J.E. Peterson, op. cit., p. 62. 82

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 181 appropriate solutions. They had, moreover, the right to put questions on the members of the government (articles 66–68). 84 In case of vote of no-confidence required to the Prime Minister, a strict procedure was followed: with the vote of 2/3 of the deputies the matter had gone back to the Amīr, who decided, at his discretion, whether to remove the Prime Minister or dissolve the chamber. The Parliament had a right of inquiry into the acts of the government, too. The cabinet members were chosen by the Amīr who retained the right to dismiss them all. 85 He also could dissolve the Assembly. In this case new elections within two months were called from the date of dissolution (article 65). Second Cycle – Constitutions adopted during the 1990s The constitutions adopted in this period were the result of at least two factors: the dramatic rise in the price of oil in 1973 which had led to the countries of the Gulf enormous wealth, and even the 1979 Islamic revolution in Iran architect of change in the regional power balance. In this context, some political systems were not changed or did not undergo significant innovations. After the first Gulf War in 1991, a second wave of constitutionalization sprung in those countries which until then were left out. In Saudi Arabia, Fahd ibn ʿAbd al-ʿAzīz (1921–2005) promoted in 1992 al-1LʲćPDO$VćVĪOLpO-ʙXNP, a charter which, although it cannot be considered a constitution, however regulates some public functions. Its most distinctive feature lies in a purely Islamic nature, more pronounced than the constitutions of other countries in the region. In fact, this law considers the Qurʾān and the sunna as a fundamental law of the state, while the institutional framework is kind of monarchy (article

G. Parolin, op. cit., p. 61; J.E. Peterson, op. cit., p. 72. The electoral law adopted modelled on that of Kuwait. Parliament was short-lived, since in 1975 the Amīr dissolved it. 85 The Amīr could dissolve the Assembly at his discretion, in the presence of the real reasons that were to be made public. However, if the Assembly was dissolved, new elections must be held within two months. Otherwise, the dissolution was considered ineffective. 84

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5.1) whose guiding principles are justice, consultation and equality in accordance with shariʿa. 86 Among his powers, in addition to the judicial and executive, the king enjoys legislative power adopting decrees and denying the existence of a legislative power in the strict sense. 87 The king appoints all members of the Council of Ministers, who are accountable to him only and whose specific task is the issuing of decrees. The Majlis al-6KŠUć is a consultative body whose function is to analyze the regulations, treaties and international agreements before they are promulgated by the king. This assembly also discusses the annual reports submitted by the ministers, suggests changes and promotes investigations to the ministers. 88 The composition of Majlis al-6KŠUć went from 60 to 90 members in 1997 to 120 in 2001 and 150 in 2005 to the present. 89 The article states: “The Saudi Arabian kingdom is an Arab-Islamic state with full sovereignty. Its religion is Islam and its Constitution the Book of God and the Prophetic sunna. The official language is Arabic and the capital Riyad”. The Qurʾān is, therefore, identified in effect as the constitution of the country. See: H. Esmaeili, “On a slow boat towards the rule of law: the nature of law in the Saudi Arabian legal system”, in $UL]Rna Journal of International and Comparative Law, vol. 26, no. 1, University of Arizona James E. Rogers College of Law, Tucson 2009, pp. 1–47; A.H. al-Fahad, “Ornamental Constitutionalism: the Saudi Basic Law of governance”, in The Yale Journal of International Law, Yale Law School, Yale 2005, pp. 375–396. 87 M. al-ʿUtaybī, al-1LʲćPDO-ʰćPPOLpO-dawla al-PXVOLPD'LUćVDWDʯʜĪOL\\D PXTćULQD, Dār Kunūz Ishbīliyya li’l-Nashr wa’l-Tawzīʿ, al-Riyāḍ 2009, pp. 266–268. 88 Assembly members were selected from among religious leaders, members of the bureaucracy and government, members of the finance and economy. The first President was Muḥammad ibn Ibrāhīm ibn Jubayr, a ḥanbalī jurist and former Minister of Justice; A. Kapiszewski, op. cit., p. 91. 89 The establishment of Majlis al-6KŠUć does not shut down the opposition, rather a petition signed by 104 academics, ʰXODPćʯ, businessmen was presented to the king Fahd. The signatories demanded the Majlis was elected, had legislative power and control of the executive. Another peti86

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 183 Oman. The Sultanate was the last Arab country to adopt a constitution. The reason for this delay is to be attributed both to the relative backwardness besetting the country until 1970, the date of accession to the throne of Sultan Qābūs ibn Saʿīd Āl Saʿīd (1940–), and the civil war exploded in the same period. Third Cycle Despite the short time that separates the constitutions of the second wave from those adopted later, a number of differences exists. The salient element is, in this case, the involvement of the electorate in the constitutional process. Baʚrayn. This country has experienced a series of upheavals since 1999, date of the accession of Ḥamad ibn ʿĪsā Āl Khalīfa (1950–). The popular unrest, pushing toward a democratic opening, veered against the martial law in effect since 1974. In 2000, the National Commission prepared a National Action Charter (NAC), put to a referendum in February 2001. Following the positive outcome of the referendum, martial law was repealed and two committees were appointed to implement the provisions contained in that text. In February 2002, a constitution was enacted by the king. One of the articles stated that, in the event of the dissolution of the Assembly, new elections must be held within two months. Otherwise, the dissolved Assembly returned in the full exercise of his functions. This rule was not complied with and the Assembly remained inoperative for a long time. The NAC was, therefore, a simple policy statement, with a democratic veneer thanks to the referendum. The constitution of 2002, whilst lacking popular legitimacy, mentions the ANC in the introduction, but reiterated that only the “real” constitution is in force (article 106). Baḥrayn is defined independent and sovereign Islamic state and is a hereditary constitutional monarchy (article 1.2). Islam is the state religion and the VKDUĪʰa is a main source of legislation. The Amīr is now called king, with the role of head of state and the tion, signed by 50 women, was published in September 2003. Finally, a third petition was prepared in the following December.

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holder of executive power together with the ministers, appointed by him. 90 The king has the power to adopt urgent decrees if necessary, outside the National Assembly sessions or when it is dissolved. However, the emergency decree should be sent to Parliament within fifteen days, if the chambers are combined; otherwise it will be examined by the new assembly. The legislative power, then, is given to the Assembly, while the king promulgates laws. He may refer the law to the Parliament for review; but if Parliament passes the same text with a 2/3 majority, the king must enact it. Parliament’s lower house is composed of 40 members elected by universal suffrage and by secret ballot, while the upper house is composed of 40 members chosen by the king. The Assembly is elected for four years; New elections must be held two months before the deadline. Candidates may be re-elected and the duration of its term may be extended only in case of war or if so is decided by a 2/3 majority. Qaʞar. In July 1999, the Amīr Ḥamad ibn Khalīfa al-Thānī (1952–) formed an Assembly of thirty members, including six members of the royal family, charged with drafting a new constitution. In September 2001, the committee concluded its work. In July 2002, the draft was presented to the Amīr and finally on April 29, 2003 was held the referendum. In these elections women were also given suffrage. The constitution came into force in 2004 when it was promulgated by the king. 91 Qaṭar is classified as an Arab and Islamic country, and VKDUĪʰa is one of the sources of legislation (article 1). The guiding principles of the state are justice, freedom and equality. Source of power is the people, while the authority has its foundation in the state and therefore in the Amīr. The Majlis al6KŠUć, holder of legislative power, consists of 45 deputies, 30 of whom are elected. The executive power is exercised by the Amīr and the ministers. The Amīr, whose person is made inviolable, is also the Commander of the Armed Forces. New policies are discussed and approved by the Parliament, especially with regard for budgetary and spending laws. The king appoints and removes the Prime Minister by decree (art. 33.2). See also: M. Herb, op. cit., 2004, p. 376. 91 G. Parolin, op. cit., p. 70; M. Herb, op. cit., 2004, p. 378. 90

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 185 2.4 Succession criteria in the monarchical constitutions One of the main reasons why the ruling families of the Persian Gulf have introduced a certain renewal within the political system is not to harm the establishment cohesion and balance of power among the élite in government, especially during the phases of transition of power. Functional to this, it was, therefore, the adoption of rules relating to the rationalization of the succession. Baʚrayn. The Shaykh Ḥamad ibn ʿĪsā Āl Khalīfa, Amīr of the country until 1999, became king following the transformation of his country in a constitutional monarchy. 92 In this context he promoted initiatives to strengthen the unity of the family, despite sharing power with his uncle Khalīfa ibn Salmān Āl Khalīfa (1935–), Prime Minister since the Declaration of Independence. 93 Baḥrayn is officially defined constitutional hereditary monarchy whose office shifted from ʿĪsā ibn Salmān Āl Khalīfa (1933–1999) to his son. The title is transmitted to the eldest son of the previous king, unless the king does not appoint a successor from among his own successors, within the rules of the Islamic law of inheritance. The nomination is decided by decree having constitutional status (article 1.3). KuZait. Political power remained concentrated until 2006 in the hands of the Amīr Jābir Āl Aḥmad Āl Jabir Āl Ṣabāḥ (1926– 2006) and Crown Prince Saʿad ʿAbd al-Allāh Sālim Āl Ṣabāḥ (1930–2008). On the death of the first, the succession of Saʿad ʿAbd al-Allāh was challenged by Shaykh Ṣabāḥ IV (1929–), supported by the people and also by Parliament. This episode created a precedent, a sign of a democratic opening, deemed dangerous for the stability of the country. For the first time, in fact, a group of persons not belonging to the ruling family voted on a matter of public interest. Kuwait hereafter is defined hereditary emirate in which the sequence can only take place between the descendants of Shaykh Mubārak Āl Ṣabāḥ (1884–1915), one of the branches of the S. Huntington, Political order in changing societies. Yale University Press, New Haven 1970, p. 177. 93 A. Khalaf, “Rules of succession and political participation in the GCC States”, in A. Khalaf – G. Luciani (edited by), op. cit., p. 45. 92

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Āl Ṣabāḥ (article 4.1). The procedure adopted to appoint the successor is peculiar of Kuwait. The designated successor, is qualified as ZDOĪDO-ʰDKG according to the classic Islamic lexicon and is chosen a year before his ascent to the office. The act of appointment is ratified by the Majlis al-8PPD by a simple majority of members present at a special session. 94 If this procedure cannot be followed, the Amīr appoints three members of the royal family, only one of which Parliament can give the role of ZDOĪDO-ʰDKG (article 4.4). The special care with which the constitution regulates the succession is revealing the desire to avoid clashes between the multiple branches of the ruling family, setting an implicit alternating system between the descendants of the sons of Mubārak, Sālim and Jābir. 95 Qaʞar. The rules on inheritance are established by the constitution of 2004. Article 8 provides that the supreme power is hereditary within the Āl Thānī family in the male line of descent of Ḥamad ibn Khalīfa ibn Ḥamad ibn ʿAbd Allāh ibn Jāsim. The Amīr has the right to appoint the walī al-ʿahd among his children; if this is not possible, one of the members of the royal family could be appointed. 96 Oman. In 1970 the Sultan Qābūs ibn Saʿīd Āl Saʿīd forced his father to abdicate the throne. With the constitution adopted in 1996 precise rules for the succession were introduced (articles 5, 6). The successor must descend from Turkī Sayyid ibn Saʿīd ibn Sulṭān, must be a male, sane, legitimate child. The Sultan may also indicate the heir, but the preferred procedure is activated within three days after the death of the Sultan at the hands of the Ruling Family Council, which is the body designated to elect a successor (article 6.1). If the Council fails to agree, the Council of Defense confirms the proposal advanced from the former Sultan. Oman’s constitution has been amended for the first time with Decree n. 99/2011 adopted on 19 October 2011. The reform involved several chapters beginning with article 6 defining the succession proceJ.E. Peterson, op. cit., p. 52. A. Khalaf, op. cit., p. 46. 96 The same Shaykh Ḥamad ascended to the throne in 1995 after having forced his father to abdicate. The fear for a counter coup d’état in 1996 led to the arrest of army officers and supporters of the royal family. 94 95

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 187 dure. The new text includes the Presidents of two chambers and the Supreme Court together with the two elders: they should indicate their preference to the Council of the Royal Family. This article confers a completely new power to the Majlis al-8PPD that helps to determine the new head of state, albeit only in the form of advice. If these rules seem more democratic than those of the other countries in the area, this complex procedure seem more adequate to the Āl Saʿīd family which does not have the size nor strength of the other royal families. Currently no one has been designated to succeed Qābūs or the country has not been made aware of the identity. 97 This choice has created many frictions with the ʰXODPćʯ who believe that the the leader should be selected with certainty and great consensus. 98 Saudi Arabia. The transmission of power is governed by the 1992 by the Fundamental Charter, which sets the sequence between the heirs of the founder of the state, King ʿAbd al-ʿAzīz. The King with decree appoints the successor and assigns him certain duties. The appointing authority is solely for the sovereign in office and therefore excludes any other institution. This presupposes, in any event, a prior negotiation internal to the family. 99 United Arab Emirates. Each Emirate chooses the most appropriate rules for succession to power, since the seven emirates are sovereign within their borders. In Abu Dhabi, the transition between Shaykh Zayd and his son Shaykh Khalīfa, in 2004, was made without strong objections. The sovereign also received the post of President of the United Arab Emirates.

A. Khalaf, op. cit., p. 48; J.E. Peterson, “The nature of succession in the Gulf”, in Middle East Journal, vol. 55, no. 4, Middle East Institute, Washington 2001, pp. 580–601. 98 M. Valeri, /H6XOʞćQDWGp2PDQ8QHUÆYROXWLRQHQWURPSH-l’œil, Karthala, Paris 1997, p. 191. 99 The monarchy is hereditary, transmitted in descending line, according to the current inheritance law (art. 5). 97

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3. MODERN THEORIES OF ISLAMIC CONSTITUTIONALISM: TOWARDS A NEW ORTHOPRAXIS

From a theoretical perspective, the repeal of the Caliphate marked the end of the validity of the material Islamic constitution and allowed the start of the constitutional process of nation-states. The colonial experience undoubtedly facilitated the spread of liberal ideas and at the same time the constitution prevented any return to the status quo ante by resorting to arguments based on the necessity of the Caliphate. 100 As already explained in the previous chapter, the constitutional debate in the Islamic world was based on the theories of salafiyya, especially processed by Rashīd Riḍā: the need for cultural renewal and even legal education, not referred only to theological values. The fundamental finding, after the abolition of the Caliphate, was that any specific form of government, planned by Islamic law, were to be accepted. Therefore, political action was taken as to realize a model near to one of utopian good governance. 101 Moreover, already Riḍā emphasized the “Islamic State”, rather than the deceased “Caliphate”, a concept later developed, among others, by Ḥasan al-Bannāʾ (1906–1949), whose characteristics derived from the sources of law, especially the Qurʾān and the sunna. 102 The state, in short, had become an instrument of renewal the spiritual and religious levels. Thus, it was charged with the task to incorporate the Muslim intelligentsia among its ranks, to favor the conditions

N. Feldman, The fall and rise of the Islamic State, Princeton University Press, Princeton 2008, pp. 85–87. 101 E. Sivan, “The clash within Islam”, in Survival, vol. 45, no. 1, Taylor & Francis, London 2003, p. 34; S. Kirmanj, “Islam, politics and government”, in Totalitarian Movements and Political Religions, vol. 9, no. 1, Taylor & Francis, London 2008, pp. 45–46; Id, “The relationship between traditional and contemporary islamist political thought”, in Middle East 5HYLHZRI,QWHUQDWLRQDO$IIDLUV, vol. 12, no. 1, Global Research in International Affairs Center, Herzliya 2008. 102 A. Black, “Religion and politics in western and Islamic political thought: a clash of epistemologies?”, in The Political Quarterly, vol. 81, no. 1, Wiley, Hoboken 2010, p. 117. 100

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 189 for implementing the shariʿa. 103 To this debate are deputed the following sections. 3.1. Constitutionalism in the legal thought of Muslim Brotherhood ʙasan al-Bannćʯ. The doctrine of the state is central in the speculation of Ḥasan al-Bannāʾ, founder of the Muslim Brotherhood. 104 In the wake of the salafī thought, the confrontation with modernity asked for a moral reform. This could only be achieved with the implementation of an Islamic agenda, whose cornerstone was the establishment of a proper state apparatus. Islam, according to alBannāʾ, is a whole way of life and a complex thinking, not just a religion. It is transcendence and immanence, GĪQ ZD-dawla. God’s word is law, not only morally, but also at the operational level, since it is made of commands and prohibitions. The shariʿa, therefore, must coincide with the constitution of the state, now taken as a secular institution. Collapsed the Ottoman state and with the rise of nation states, the governance’s model during the colonial experience was nothing but a transposition of Western constitutional systems. This state should not be abolished nor is permissible to fight it; rather it is now necessary to change it, transforming its secular nature. In fact, according to Islamic law the state has the function of applying the 103

M. Campanini, Islame politica, Il Mulino, Bologna 2003, pp. 187–

195. A. Musalli, “Hasan al-Banna’s Islamist discourse on Constitutional rule and Islamic State”, in Journal of Islamic Studies, vol. 4, no. 2, Oxford University Press, Oxford 1993, pp. 161–174; M.A. al-Qadir Abu Faris, al-Fiqh al-VL\ćVĪ ʰLQGD DO-,PćP DO-VKDKĪG ʙDVDQ DO-%DQQćʯ, Dār alBashīr li’l-Thaqāfa wa’l-ʿĪlām, Cairo 1999; N. Brown, op. cit., 2002, p. 176; S. Zubaida, Law and power in the Islamic world, I.B. Tauris, London 2005, pp. 47–51; B.K. Rutherford, Egypt after Mubarak. Liberalism, Islam and GHPRFUDF\ LQ WKH $UDE :RUOG, Princeton University Press, Princeton, 2008, pp. 77–79; O. Carré – M. Seurat, “L’utopie islamiste au Moyen-Orient Arabe et particulièrement en Egypte et en Syrie”, in O. Carré (edited by), L’Islamet l’État dans le monde d’aujourd’hui, Presses Universitaires de France, Paris 1982, pp. 13–18. 104

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law and promoting well-being in this life. As a result, the state must regain its role of training the masses, which requires the acceptance of the nation states, justifiable under the light of necessity. But even in this temporary phase, the state can not separate the religious from the civil level, nor can renounce to afford those tasks that give it legitimacy. Ultimately, the state is legitimate only if it applies the law of God, therefore, only if it is Islamic. 105 Moreover, the state should be headed by a single qualified unit, called Caliph, Sultan, President or King, who governs by an advisory body to draft and amend the laws on the basis of the sources of Islamic law. 106 No human law is permitted if it has no reference to: The comprehensive, flexible and total Islamic law. Therefore, any civil, criminal, international or business law must derive from the shariʿa. 107

Under this context, al-Bannāʾ launched an appeal to all the Muslim scholars with a European background to combine their skills and develop a positive law based on the principles of Islam. Regarding constitutionalism, it must not be rejected. Implementing divine laws requires a source of authority, an heir to the political role of the Prophet. In his absence, the constitution is what most approaches, since it ensures the rights and freedoms and, applying the principle of consultation, postulates the people’s control over the government and assigns specific functions to the executive, legislative and judicial powers. In addition, al-Bannāʾ anticipated a concept then developed by later theorists, even consecrated in certain constitutions: the idea of God’s sovereignty (KćNLPL\\D). In the Islamic political theory, God is sovereign since he is the architect of creation. However, writes al-Bannāʾ, it is necessary to distinguish Ibid., pp. 165–166; M. Khadduri, op. cit., p. 77. A. Musalli, op. cit., p. 168; S. Zubaida, op. cit., pp. 48–49. According to the vision of al-Bannāʾ and the first theorists of the Muslim Brotherhood, the Islamic state had to correspond to a form of presidential republic whose cabinet must work closely with VKŠUć. This model was the more faithful to Islamic tradition and closest to the prototype of the “sacred history”. 107 A. Musalli, op. cit., p. 169. 105 106

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 191 between a human and divine sovereignty: no human being can represent the first and thus even exercise it. Human sovereignty, however, is ascribed by the government when it is inspired by the shariʿa and makes use of the principle of consultation. 108 The Islamic vision of power does not contradict the parliamentary model, whose members may be mujtahid able to issuing juridical verdicts. But al-Bannāʾ did not accept the role of the parties considering them an expression of the sum of the rights of individuals. Instead, he admitted a limited electorate, made up of qualified voters only. The thought of al-Bannāʾ focused on the need for unification of the Islamic community through legislative reform inspired by the revelation, in which the shariʿa could be the absolute source of law. Like the classic theory of the Caliphate, the government is deemed necessary, as one of the pillars of Islam. Its tasks are to ensure security for the people and care of the general interest and health protection. The governor must be obeyed and helped in applying the law. Otherwise, the community can remove him if he does not decide by Islamic law. 109 ʰAbd al-Qćdir ʰAZda. After al-Bannāʾ, ʿAwda (-1954) was the main theorist of the Muslim Brotherhood and the author of al,VOćPZD-DZʘćʰXQćDO-VL\ćVL\\D where he addressed several issues related to the Islamic government. 110 The author argues for the obligation for Muslims to elect a government that applies the divine commandments. However, it is not enough to profess Islam as the official religion to assert that the government is Islamic but it is necessary that the Qurʾān identifies with the constitution. 111 The government should promote the implementation of religion and A. Musalli, op. cit., pp. 170–171. See also: A. Belkeziz, The State in contemporary Islamic thought, I.B. Tauris, London 2009, p. 130. 109 Education in accordance with religious values should also be reflected in school and university institutions. See also: B. Rutherford, op. cit., 2008, p. 79; M. Abu Faris, op. cit., p. 30. 110 ʿAbd al-Qādir ʿAwda, al-Islam wa-DZʘćʰXQćDO-VL\ćVL\\D, Mu’assasat al-Risāla, Beirut 1981; P.J. Vatikiotis, Islam and the State, Croom Helm, London 1987, pp. 93–94; E. Sivan, op. cit., pp. 65–66; N. Brown, op. cit., 2002, pp. 165–166. 111 ʿAbd al-Qādir ʿAwda, op. cit., p. 84. 108

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impose God’s law. This type of government must respect three elements: being Qurʾānic, consultative and caliphal. The first feature means that the Qurʾān should coincide with the constitution; the shariʿa must not represent only the foundation of the state, but also inspire positive legislation. 112 The second feature is the consultation, which is considered mandatory as it determines every aspect of associative life of the believers. 113 The third characteristic of the Islamic government is its caliphal nature, concerning the appointment to the highest office of the state. The Qurʾān does not define a form of state, but only gives general guidelines. In particular, it establishes its vicarious nature with respect for the role of the Prophet who was at the top of first Islamic state. 114 The Islamic law does not allow a tyrannical government and also refuses adopting laws and decrees based on human decisions. 115 Even if the presence of an assembly may suggest to a parliamentary system, in Islam the assembly is only advisory. The Islamic political model in some ways resembles the monarchical and republican systems: as in the first, the Islamic law allows for life appointment of the head of state, while compared to the second it stipulates that the community appoints his governor by election. But there is a profound difference between the Islamic and the Western systems in terms of rights and freedoms: these are considered absolute by secular governments where in Islam are bound to the religion. In his al-,VOćm wa-DZʘćʰXQćDO-TćQŠQL\\D, ʿAwda re-takes the theme of the impossibility for the Muslims to obey who transgresses the laws of God. The law must be understood as a social necessity and an essential

Ibid., p. 88; N. Brown, op. cit., 2002, p. 166. Considering the VKDUĪD as the state constitution makes the legislative activity, and in general all positive law, residual with respect to the revelation. 113 ʿAbd al-Qādir ʿAwda, op. cit., p. 92; F. Jadaane, Notion of State in FRQWHPSRUDU\$UDE-Islamic writings, in G. Luciani (edited by), 7KH$UDE6WDWH, Routledge, London 1990, p. 258. 114 ʿAbd al-Qādir ʿAwda, op. cit., p. 93. 115 Ibid., p. 101. 112

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 193 factor of order and prevention of tyranny; it serves for the welfare of the people and to protect the order of society. 116 Muʚammad al-Gha]ćlĪ (1917–1996) wrote many treatises of a political nature, including al-,VOćP ZDpO-LVWLEGćG DO-VL\ćVĪ, where the author discusses the relationship between Islam and tyranny, recalling al-Kawākibī. 117 According to the common view, it is possible to stop tyranny with the adoption of laws and constitutions, but it is possible that these tools lead to autocratic governments. 118 The first characteristic of the authocratic government is the absence of moral qualities in its leaders. Moreover, it is devoted to political idolatry, since man is created with free will and faith in one God who requires the rejection of any kind of human subjection. Another feature of the absolute government is the immoderation, which is typical in contemporary regimes of oil-producing countries. Here the revenues deriving from the sale of resources belong to the ruling families and not to the people. 119 The Islamic government, on the contrary, is opposed at every unjustified extortion. Consultation, which is a mandatory principle, allows the reaffirmation of popular will. 120 Al-Ghazālī therefore concludes that the abandonment of the consultation is the signal of the abandonment of the Islamic values. 121 3.2. al-MaZdŠdĪ and the Islamic “ideological” constitutionalism Abū al-Aʿlā al-Mawdūdī (1903–1979) was a prolific author on the subject of constitutionalism. One of the most representative texts ʿAbd al-Qādir ʿAwda, al-Islam wa-DZʘćʰXQćDO-TćQŠQL\\D, al-Mukhtār al-Islamī, Cairo 1977; O. Carré, op. cit., p. 18. 117 B.K. Rutherford, op. cit., 2008, p. 83; O. Carré, op. cit., p. 17. 118 Muḥammad al-Ghazālī, al-,VOćOP ZDpO-LVWLEGćG DO-VL\ćVĪ, Dār Nahḍa Miṣr li’l-Ṭibāʿa wa’l-Nashr wa’l-Tawzīʿ, Cairo 1997; R.W. Baker, op. cit., pp. 6 and 20–22; E. Sivan, op. cit., pp. 32–33. 119 Muḥammad al-Ghazālī, op. cit., p. 36. 120 A. Belkeziz, op. cit., p. 176. 121 Ibid., op. cit., 1990; Muḥammad al-Ghazālī, $]PDW DO-VKŠUć IĪpOPXMWDPDʰćWDO-ʰDUDEL\\DZDpO-LVOćPL\\D, Dār al-Sharq al-Awsaṭ li’l-Nashr, Cario 1990, p. 46. 116

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is a lesson held in Lahore, in 1975, on the occasion of a conference on the topic of rights and freedoms in Islam. 122 According to alMawdūdī, the Islamic political system is based on three principles: the oneness of God, prophecy and the caliphate. The first principle states that to God alone belongs the sovereignty; only he has the right to order and forbid. 123 The Caliphate, which is made to allow political representation, indicates that man is entitled to exercise power within the limits set by law. Popular sovereignty, therefore, coincides with the ability to interpret the sources of Islamic law, and conform entirely to it. This kind of Islamic democracy is the sharing of political responsibility on the part of Muslims, with equal rights and duties. Writes al-Mawdūdī: The state is nothing more than the extension of the powers of individuals. Their opinion is crucial for the government that works only in accordance with their advice and wishes. […]. In this way the Islamic political system is a perfect form of democracy, better than any democracy can be. 124

The most obvious difference between Western and Islamic democracy is that the first is based on popular sovereignty, while the second is based on “popular Caliphate”. In the Western-style democracy, the people’s representatives develop their own laws, while in the Islamic democracy, God’s representatives restrict themselves to implementing the laws. Western democracy is a form of absolute authority exercising power in an uncontrolled and free manner, while Islam is bound by religious principles. 125

Abū al-Aʿlā al-Mawdūdī, Human Rights in Islam, edited by K. Ahmad, The Islamic Foundation, Lahore 1995. 123 Ibid., p. 5; C.J. Adams, “Mawdudi and the Islamic State” in J.L. Esposito, Islam and Politics, Syracuse University Press, New York 1987, op. cit., pp. 99–133. 124 Abū al-Aʿlāʾ al-Mawdūdī, op. cit., pp. 6–7. 125 Abū al-Aʿlāʾ al-Mawdūdī, op. cit., pp. 6–7; N.N. Ayubi, Political islam. Religion and politics in the arab world, Routledge, London 1991, pp. 66 and 127–130; G. Kepel, Jihad, ascesa e declino. Storia del fondamentalismo Islamico, Carocci, Roma 2001, pp. 33–36. 122

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 195 The Amīr, comparable to the President, elected by men and women, administers the state. He rules within the limits set by the shariʿa, as long as he has the confidence of the people, but must resign if he fails. The VKŠUć is a consultative assembly, appointed by the people, to assist the leader in state administration. It is always given the right to criticize against the government by all lawful means. Legislative power is exercised within the legal limits in those areas not directly governed by the sources of Islamic law. In this case, Islamic law leaves a residual legislative power entitled upon the assembly to express freely. Finally, the judiciary is independent from the legislative and executive powers, although members of the judiciary are appointed by the executive. In his Islamic Law and Constitution, al-Mawdūdī dealt with the relationship between the shariʿa and constitutionalism. A first point concerns the political slavery in which the Islamic community found itself, persuaded by Western thought to set aside the Islamic law. 126 This creates a religious problem, since an Islamic society that does not give application to the shariʿa breaks the contract with God and ceases to be Islamic. 127 Therefore, it is necessary to create an apparatus to apply the Islamic law. The basis of this doctrine is Qurʾān, 33:36: “It is not for a believing man or a believing woman, when God and His Messenger have decided a matter, that they should [thereafter] have any choice about their affair. And whoever disobeys God and His Messenger has certainly strayed into clear error”.

Abū al-Aʿlāʾ al-Mawdūdī, Islamic Law and Constitution, edied by K. Ahmad, Islamic Publications, Lahore 1960; S. Kirmanj, “The Relationship between Traditional and Contemporary Islamist Political Thought” in 0LGGOH(DVW5HYLHZRI,QWHUQDWLRQDO$IIDLUV, vol. 12, no. 1, Global Research in International Affairs Center, Herzliya 2008, p. 72. 127 Abū al-Aʿlāʾ al-Mawdūdī, op. cit., 1960, p. 49; R. Bellani, “Lo stato Islamico: postulati fondamentali di Abū al-Aʿlāʾ al-Mawdūdī”, in $QQDOL 5LYLVWDGHO6HPLQDULR GL 6WXGL $VLDWLFL H GHO6HPLQDULR GL 6WXGL $IULFDQL, Vol. 42, Istituto Universitario Orientale, Napoli 1982, p. 595; V.R. Nasr, Mawdudi and the making of Islamic revivalism, Oxford University Press, Oxford 1996, p. 80. 126

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The Islamic system does not exclude the human law-making, but it must comply with the purposes of revelation. There are immutable parts of the Islamic law, such rules expressly in the Qurʾān and sunna as the prohibition of intoxicants or take the limit of four wives. While it is never possible to legislate in the field of ʰLEDGćW, it is possible to intervene in the sphere of PXʰćPDOćW, even if in a limited way. In this context, it is permissible to resort to PDʜODʚD and LVWLʚVćn, respecting three conditions: the rule should comply with the aim of the shariʿa, must be intelligible and understandable to the people, and must come out for a genuine need of the community. Thus, the Islamic government is theo-democratic, that is a democratic-divine government characterized by limited popular sovereignty. The democratic spirit of the Islamic government is that the residual legislative power lies in the hands of legal experts, while the theocratic nature consists in the fact that: where an ordinance of God or the Prophet already exists, no leader or any legislative body nor any lawyer has the right to exercise independent thinking. 128

If the shariʿa is the primary source of legislation, the Islamic state is ideological, just as the communist one. It is evident, therefore, that it can not be compared to any form of government encoded from Western constitutionalism. 3.3 Constitutionalism in the thought of the Ćyćt Allćh Khomeini The political thought of Āyāt Allāh Rūḥ Allāh Khomeini (1902– 1989) started by the need to reconcile the cultural and legal values of Islam with modernity. This debate, which sprung in the VXQQĪ world with the salafiyya, was not just about the religious aspect, but in a particular included the political ideology. Khomeini followed Ibid., pp. 139–140. K.B. Sayeed, “The Jamaʿat-i-Islami movement in Pakistan”, in 3DFLILF$IIDLUV, vol. 30, no. 1, University of British Columbia, Vancouver 1957, pp. 59–68; A. Asfaruddin, “Mawdudi’s theodemocracy: How Islamic is it really?”, in Oriente Moderno, vol. 2, Istituto per l’Oriente, Roma 2007, pp. 302–303. 128

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 197 the initiators, al-Afghānī and ʿAbduh, and went to al-Riḍā and alKawākibī. 129 From their works, he received quite a few suggestions, although he was also influenced by the reading of the philosopher Ibn al-ʿArabī. The greatest contribution to the development of Khomeini Islamic theory of the state consisted in highlighting that its main character was not residing on a given constitution or the way in which the rulers would lay to the VKDUĪ‘a, but in the quality of leadership, represented by the jurists (IXTDKćʯ). 130 For this reason, it is central in the speech of Khomeini the concept of TL\ćGD. 131 In fact, after the concealment of the last Imam, the responsibilities and powers of the Prophet, except prophecy, went to the scholars. 132 In an interview, on January 1979, shortly before his return to Iran, Khomeini specified that the ZLOć\DW DO-IDTĪK was not a principle of government. The organization of the state structure and the criteria for the appointment of political authorities have never been treated in manuals of VKĪ‘Ī jurisprudence; therefore, they can be defined in “human” laws subsequently adopted. 133 This reasoning also applies to the constitution which could be defined in different ways and specific times, but drafted so as to be compatible with Islamic principles and the national interest. 134 The theory of ZLOć\DWDO-IDTĪK be-

V. Martin, Creating an IslamLF6WDWH.KRPHLQLDQGWKHPDNLQJRID1HZ Iran, I.B. Tauris, London 2000, pp. 100–103. 130 H. Enayat, Modern IslamLFSROLWLFDOWKRXJKW7KHUHVSRQVHRIWKHVKLʰLDQG the sunni muslims to the twentieth century, MacMillan, London 1991, p. 30; N.N. Ayubi, Political islam. Religion and politics in the arab world, Routledge, London 1991, p. 146. 131 S. Zubaida, Islam, the people and the State. Essays on political ideas and movements in the Middle East, I.B. Tauris, London 1989, p. 14. 132 S. Arjomand, The turban for the crown. The Islamic Revolution in Iran, Oxford University Press, Oxford 1988, p. 148. 133 M. Bayat, “Secularism and Islamic government in Iran”, in P.H. Stoddard, The Middle East in the 1980s: problems and prospects, The Middle East Institute, Washington 1983. 134 See on this point: S. Arjomand, “Authority in Shiism and constitutional developments in the Islamic Republic of Iran”, in R. Brunner – 129

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came the subject of extensive debate after its insertion into the draft constitution, since marked a fracture compared to the traditional conception of authority by the Imāmī law. Khomeini issued a first political treatise, .DVKI DO-$VUćU, between 1943 and 1944, a sharp polemic against the government of Reza Shāh (1878–1944). 135 But despite these criticisms, Khomeini also reaffirmed the classical Islamic theory that the bad government is preferable to anarchy. He stated that the scholars were never opposed to constituted power. Indeed, often they had collaborated with the sovereigns. 136 This is because the government is necessary for human beings because they are selfish by nature. Without a government there would be no order or laws, which security for life and property depend from. 137 Khomeini, however, demanded greater respect for religion by the power, a conspicuous presence of scholars in Parliament and full compliance of the state to the dictates of VKDUĪʰa. However, in this work there is no trace of discussion on the themes of revolution, republic, martyrdom, oppression of the masses and the government of the jurists, which instead represent the central themes of his later production. At the same time, the program of the Islamic government was already outlined in this work. Although Khomeini still accepted the view expressed by previous theorists, a constitutionalism based on the revelation, he, at the same time stated that only the legitimate government is divine, the one that applies the revealed word. A power to control must be given to the IDTĪK because he is the only one entitled to evaluate the adherence of the government to the W. Ende (edited by), The Twelver Shia in modern times. Religious culture & political history, Brill, Leiden 2001, pp. 301–302. 135 Rūḥ Allāh Khomeini, .DVKI DO-DVUćU, Dār ʿAmmān li’l-Nashr, ʿAmmān 1987; V. Martin, “Religion and state in Khumaini’s Kashf alasrar”, in %XOOHWLQ RI WKH 6FKRRO RI 2ULHQWDODQG $IULFDQ 6WXGLHV, vol. 56, no. 1, Cambridge University Press on behalf of School of Oriental and African Studies, London 1993, pp. 34–45. 136 N.N. Ayubi, op. cit., p. 147; D.F. Eickelman – J. Piscatori, Muslim politics, Princeton University Press, Princeton 1996., p. 49. 137 E. Abrahamian, .KRPHLQLVP(VVD\VRQWKHIslamic Republic, I.B. Tauris, London 1993, p. 40.

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 199 Islamic law. The jurists are able to play a role of supervision even on the Parliament, whose law-making is explanatory of that of God. In Khomeini’s view, the monarchical system was not satisfactory and past experiences in Iran proved that it was not the most desirable political system. In .DVKI DO-$VUćU, however, still dominates the idea that the codification and acceptance of constitutionalism were damaging to Islam, because they did not refere to VKDUĪʰa. For these reasons the government had to be formed by an assembly of IXTDKćʯ who should be given the task of appointing a governor respectful of Islamic law. There is not a complete identification between the governor and the jurist. With this respect Khomeini wrote: We, arguing that the government and the control function must coexist in the jurists, do not mean that the IDTĪK has to be the Shah or the Minister or even the military. Let us say, rather, that a right and elective assembly should be appointed by the people and should be given the burden to form a government, thus reforming the monarchy. 138

Scholars agree to believe that Khomeini did not develop a new concept of state before the late 60s. Only at the end of that decade the jurist began to think of an alternative government to the system of the Shāh, generalizing some of the preceding arguments about legal and religious authority of jurists. The innovative doctrine, known in coherent form as ZLOć\DW DO-IDTĪK, was exposed during a cycle of seminars lectures in Najaf in 1970. The book was first published in Beirut in the same year. The great innovation of the work lays in putting the political theme in a work of jurisprudence and in the idea that not only was lawful for the jurist to develop an Islamic government, but also the other jurists were obliged to follow the jurist who had succeeded in this aim. This conclusion represented a revolution because was in contrast to the traditional Imāmī doctrine according to which a jurist capable of ijWLKćG can not be under the authority of anyone. The jurists will have to make over the administration of the Islamic state. In fact, in Qurʾān 4:59 “those with authority”, must 138

V. Martin, op. cit., p. 109.

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be understood with an exclusive reference to the IXTDKćʯ, who, together or individually, interpret the sources of Islamic law, but can also be helped by a government. 139 After all: the people are imperfect […] and therefore need a perfect example […] while social laws need men to be inforced. 140

Khomeini began to discredit the regime through his literary works. He claimed that Muslims had a religious duty to oppose any form of monarchy, identified as a despotic system of government, imported from the Umayyads, by the example of the Romans and the Sassanids. In this sense, it is important the use of antithetical terms such as PXVWDNELUŠna and mustaʰʘDIŠQD, which did not appear in previous writings. 141 One of the cornerstones of his opposition to the monarchy rotates around the support that the Shah gave the United States of America and Israel against the Muslim world. The political freedom, guaranteed by the constitution, made the country dependent on the West and also to a form of cultural imperialism that undermined not only Iran but all Islam. The model of government based on the constitution was alien to the cultural specificities of Islam and would have undermined its originality. On the eve of the revolution, Khomeini stressed the importance of two terms: the Republic and LQTLOćE (revolution). The second was to represent the basis for establishing the first, which in turn would have created the original Islamic society. The monarchy, before cautiously tolerated, became completely incompatible with Islam for the benefit of the government of jurists whose state must be called the Imamate. They had to apply the Islamic law to ensure order, create social welfare, manage the administrative apparatus

H. Seifzadeh, “Ayatollah Khomeini’s Concept of Rightful Government: The Velayat-e-Faqih”, in H. Mutalib – T. Hashimi (edited by), Islam, Muslims and the modern state: case-studies of Muslims in thirteen countries, Macmillan, Houndmills 1996, pp. 197–210. 140 J. Digard, “Shiʿism et Etat en Iran”, in O. Carré (edited by), L’Islamet l’État dans le monde d’aujourd’hui, Presses Universitaires de France, Paris 1982, p. 73. 141 E. Abrahamian, op. cit., p. 24. 139

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 201 and the judiciary. 142 The government must be formed by those who, in addition to the ability to administer, possessed deep religious knowledge and knew how to handle it. 143 To govern, in short, should have been the most qualified jursis. If there was not any person in possession of high quality, the task must have been given to a commission of jurists, reunited in a collective body. The jurist, while not enjoying the prerogative of infallibility, typical of the Imam, however, has the same authority. 144 However, the role of the lawyer was mainly to give application to the Islamic law. In this context the principle of separation of powers did not find more space to. Khomeini wrote: [The Islamic State] can not be considered tyrannical. But it is not even constitutional in the sense generally accepted to be based on the approval of laws in accordance with the views of the majority. It is constitutional in the sense that those who govern, in the act of administering and governing the country, are subject to a number of constraints fixed by the Qurʾān and the sunna […]. The fundamental difference between the Islamic government and the constitution of a republic or a monarchy is the following: while representatives of the people are entitled to legislate, in Islam the legislative power belongs only to God […] and human beings are not able to legislate. So, in an Islamic government there is only one institution, however, which has the skills of the legislature. 145

E. Abrahamian, op. cit., p. 54; H. Seifzadeh, op. cit., 199. V. Martin, op. cit., p. 120. 144 V. Martin stresses that for Khomeini the two terms of ,PćP and IDTĪK are not interchangeable in so far as the second denotes the leadership, i.e. the one who is in charge of governing, on the basis of qualities possessed, in particular science. The two figures do not coincide, but the jurist, making the place hidden Imām, evidenced the dogma of his return. The originality of Khomeini’s position consisted in this equalization of the duties of the Imām and those of the IDTĪK, except the function of production of the new norms. The jurist does not participate to divine inspiration, but he analyzes the sources of law to find solutions to legal cases. 145 V. Martin, op. cit., p. 122. 142 143

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This vision, seemingly far from the democratic conception of power, assumes a significant consensual basis, since VKDUĪʰa is accepted by every believer. The assemblies, although may be provided in the framework of the Islamic state, hardly can take the form of representative bodies, as this is against the principle of the sovereignty of God. Khomeini succeeded, therefore, where sunnī intellectuals failed, that is, to identify the jurist with political authority. 146 The Supreme Leader, also called ZDOĪDO-IDTĪK, does not govern on behalf of the religious class, even though he is part of it. He must be above the institutions since it acts in place of the hidden Imam. 147 Moreover, it is not an absolute authority (ZLOć\D), but a limited one. This position was functional to the Khomeini project that aimed to win the support of the lower VKĪʰĪ hierarchies, the Hujjat al-Islam, rather the higher members. While Khomeini was referring to Imāmī tradition as the source he drew his doctrine from, however the earlier scholars had not made the political discourse the focus of their work, but they simply attributed the faqīh a role as the sovereign guide. 148 In Khomeini’s vision the replacement of the Shah with the jurist was made possible, also condemning those scholars who were not concerned with politics. But while the authority of the Prophet and the Imams was intrinsic, that provided to the jurist was extrinsic. In other words, it was a delegated authority, made on the need to apply the law. These ideas, that exceed the traditional Imāmī jurisprudencence, have been incorporated in the Iranian constitution (art.

C. Mallat, The Renewal of Islamic law. Muhammad Baqer as-Sadr, Najaf DQGWKH6KLʰL,QWHUQDWLRQDO, Cambridge University Press, Cambridge 1993, p. 60. Ruh Allah Khomeyni, al-Hukuma al-Islamiyya, al-Tibaʿa al-Rabiʿa, Qum, 1997. See also: H. Algar (edited by), Islam and Revolutions. Writings and DecODUDWLRQVRI,PDP.KRPHLQL, Mizan Press, Berkeley 1981. 147 O. Roy, The Failure of Political Islam, I.B. Tauris, London 1994, p. 173. 148 A. Belkeziz, The State in contemporary Islamic thought, I.B. Tauris, London 2009, p. 231; S. Zubaida, op. cit., 1989, p. 16. 146

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 203 5, 57 and 107), creating a centralized system of government in which Islam occupies an important place. 149 3.4. Beyond Khomeinism: the failure of reconciling w ilāyat alfaqīh and democracy The thought of Khomeini had further development in the writings of others VKĪ‘Ī imāmī thinkers like Muʚammad al-ʙusayn alShĪrć]Ī (1928–2001). He was the author of al-6DEĪO LOć ,QWLKćʘ DO0XVOLPĪQ; a long essay which deals with constitutional and political issues. The author begins the discussion by stating that the purpose of politics in Islam is for the formation of a single government for the Muslims, in order to overcome the current division within states. The intellectual and political effort must be made to eradicate the borders and unificate these territories under the divine law to counter the colonial partition and the Western system of law. 150 On the top of an Islamic state, a Supreme Governor must be placed: a pious scholar devoted to God and appointed by the majority of Muslims. The basic principle of the Islamic state is the application of VKŠUć, the election of the head of the state who must be just, mujtahid and expert of Islamic jurisprudence. 151 The appointment of the governor should be as follows: each Muslim country appoints an Amīr and then, among them, should be appointed a Supreme Governor (al-ʚćNLP DO-DʰOć). The mandate lasts no more than four or five years given that under Islamic law the government can not be hereditary or dictatorial. The administration is based on the shariʿa and be related to the needs of the community. 152 The state must have consultative nature and can not be based on the monopoly of decision-making. The public organization must be based on freedom. This, in turn, requires two conditions: the complete trust between the electors and the Supreme GoverM. Momen, $QLQWURGXFWLRQWR6KLʰL,VODP7KHKLVWRU\DQGGRFWULQHVRI WZHOYHUVKLʰLVP, Yale University Press, New Heaven 1985, p. 196. 150 Muḥammad al-Ḥusayn al-Shīrāzī, al-6DEĪO LOć ,QWLKćʘ DO-0XVOLPĪQ, Muʾassasat al-Fikra al-Islāmī, Beirut 1994. 151 Ibid., p. 19. 152 Ibid., p. 32–45. 149

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nor; the latter should be selected by free voting. In the absence of these requisites, the cooperation between the base and the apex is not achieved and this opens the way for a dictatorial system. Moreover, the Islamic state must have a well-defined government program that gives application to the will of God. Faced with this need, the supreme power must be given to so-called al-IXTDKćʯ DOʰXGŠO, i.e. those who “have in their eyes the Prophet and Imam”. The jurists collaborate with political parties to interpret the sources of Islamic law and solve the problems linked to tha application of the divine law. 153 The state program must be based on freedom of thought, expression and belief according to Qurʾān 2:256. This is because Islam enshrines freedom of commerce, navigation, the right to work and guarantees the need in all other areas of the private life of the believers. In accordance with the rights and liberties the state must undertake to give effect through legislation. However, freedom must be responsible and is not as absolute as in Western countries. The Islamic state, in short, must strive to accomplish three tasks: implement and maintain social justice, defend the country from enemies, develop the community upon ethical, cultural and political values. With these points the Islamic government differs from the hereditary government which is disconnected from the will of the community and does not respect it. The Islamic government differs also from democracy for two reasons: the existence of a supreme power devolved to the scholars and because the Assembly enjoys a consultative role, not even the power to legislate. At the same time, the will of the community is represented twice: by the scholars and by the deputies. Furthermore, instead of the three traditional powers, the Islamic model proposes a supreme power (al-VXOʞDDO-ʰXOL\ć) due to jurists; the executive (al-ULʯ\ćVD) which belongs to the Supreme Governor and the Assembly (al-majlis) with a purely role of consultation. 154 The act of lawmaking takes place on the basis of the Qurʾān and the sunna and should strive to harIbid., p. 219. Muḥammad al-Ḥusayn al-Shīrāzī, op. cit., p. 248. See also: Z. Olyabek (edited by), The Islamic System of Government, Fountain Books, London 2000; M. G. Ayub, $VSHFWVRIWKHPolitical Theory of Imam Muhammad Shirazi, Fountain Books, London 2004. 153 154

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 205 monize the legal systems of all Muslim countries, through the use of ijWLKćG. The Great Ćyćt Allćh ʙusayn al-MuntaʲirĪ (1922–2009) was the author of a detailed study entitled 'LUćVćWIĪZLOć\DWDO-IDTĪK. The first volume of the work opens with an overview of the different forms of power and with the definition of absolute monarchy. 155 This system is characteristic of those states where the individual assumes power with force. 156 The second form of government, coming out from the first, is the hereditary monarchy. The third form is aristocratic government in which social class is divided according to wealth and not on merit. The author then goes on to describe elective systems and distinguishes the limited government where the right to vote is enjoyed just by a few individuals. The fifth form, which is a variant of the previous, is the popular elected government, typical of the ideological states like the Marxist-Soviet one. The following system is the democratic elected government where people hold albeit indirectly the executive and legislative powers. The Islamic government differs from all those recalled earlier because it draws its legitimacy from the Qurʾān and the sunna to give application to the Islamic law. The right to exercise ZLOć\D during the occultation of the Imam transited across the jurist who is given the task of preserving the rights of the Muslims. The people, formally, are given the three powers, executive, legislative and judicial, in turn, limited by the Islamic principles. However, the supreme power belongs to God and the jurist enjoys a real capacity to govern, except within the limits of the implementation of the divine law. The jurist, therefore, must meet the following characterisḤusayn al-Muntaẓirī, 'LUćVćW IĪ ZLOć\DW DO-IDTĪK ZD-fiqh al-dawla alLVOćPL\\D, 4 Vols., al-Markaz al-ʿĪlamī li’l-Dirāsāt al-Islāmiyya, Qumm 1987; C. Kurzman, “Critics within: Islamic Scholars’ Protests against the Islamic State in Iran”, in International Journal of Politics, Culture, and Society, Vol. 15, No. 2, Spinger, Heidelberg 2001, p. 346. B. Rahimi, “Democratic authority, public Islam, and Shi'i jurisprudence in Iran and Iraq: Hussain Ali Montazeri and Ali Sistani”, in International Political Science Review, Vol. 33, No. 2, SAGE, Thousand Oaks 2012, p. 198. 156 Ḥusayn al-Muntaẓirī, op. cit., Vol. 1, p. 6. 155

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tics: he must know properly the Islamic law and be a trustworthy man because, being the ZDOĪ, he is responsible for all the Muslims. In another part of the work, al-Muntaẓirī gives a comprehensive definition of the ZLOć\D which have different meanings but generally indicates a form of administration (WDʜDUUXI) over a person or a thing. 157 In line with the classical jurisprudence it can be takwĪQL\\D or WDVKUĪʰL\\D. The second type of authority is the right to issue an order and is divided into various degrees. A full authority belongs only to God and the Prophet, the bearer of revelation. The Imam and the jurist enjoy a limited authority: the fDTĪK has the duty to listen to the problems the community and find for them legal solutions. Its authority is exerted in two main areas: all those religious questions already explained by the Prophet and Imam, except in cases where there is a decision obtained through consensus or the Qurʾān. Secondly, in the wordly actions related to the believers’ life as defined by the imāmī jurisprudence. 158 The author addresses in detail the question of sovereignty. 159 For some scholars, it belongs only to God, the only one who can exercise the government and the law-making. According to this view, the Islamic government is purely theoretical since the Imam and the IDTĪK exercised a delegated function of interpretation and not even the creation of new rules. The adverse opinion holds that the community is the source of authority and custodian of soverIbid., p. 11. S. Akhavi, “Contending Discourses in Shiʿi Law on the Doctrine of Wilāyat al-Faqīh”, in Iranian Studies, Vol. 29, No. 3/4, Taylor & Francis, Abingdon 1996, p. 254. al-Muntaẓirī, op. cit., Vol. 1, p. 77. See also: S. Akhavi: “The Thought and Role of Ayatollah Hossein ʿAli Montazeri in the Politics of Post-1979 Iran”, Iranian Studies, Vol. 41, No. 5, Taylor & Francis, Abingdon 2008, p. 645–666; T. M. Aziz, “Popular Sovereignty in Contemporary Shiʿi Political Thought”, in A. A. Mazrui, J. Esposito, Islam, Democracy and the Secularist State in the Post-Modern Era, Georgetown University Conference Center, Washington 2001, p. 110. G. Abdo, “Re-Thinking the Islamic Republic: A “Conversation” with Ayatollah Hossein ʿAli Montazeri”, in Middle East Journal, Vol. 55, No. 1, Middle East Institute, Washington 2001, p. 19. 159 Ḥusayn al-Muntaẓirī, op. cit., Vol. 1, p. 405. 157 158

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 207 eignty, represented by the ahl al-ʚDOOZDpO-ʰDTG. At the end of the first volume, the author shows us sixteen issues of great importance with reference to the ZLOć\D system. 160 In particular, the second issue concerns the difference between Islamic and democratic government, that resides merely upon two aspects. In the democratic country, the governor is conditioned and not absolute but draws legitimacy from the election. Moreover, the democratic government does not force the people through any specific ideology or a unique moral system. In the Islamic model, the governor is never devoid of an address and even his primary function is merely executive. The basis of the government is guided by the divine principles and, above all, the governor is limited by the scholar who is a guardian and interpreter. As for the tasks that the governor performs for the community, al-Muntaẓirī refers to the jurisprudence of al-Māwardī. These tasks include to favor the welfare of the Muslim state, teaching the Islamic sciences, illustrating what is prohibited and what is legal. Another task is the enforcement of consultation, which is configured as an obligation. 161 Through the VKŠUć the decisions on collective issues of particular interest are shared and the separation of powers is realized. However, this principle, although accepted by the imāmī jurisprudence, knows restrictions while great importance is placed on the independence of the judiciary. In other words, the assembly, while acting as representatives of the people, does not carry out legislative activity taking into account people’s wishes, though it must be based upon the Islamic law. By the VKŠUć decisions are not taken on the basis of a majority of the votes but realizing unanimous opinion. Voters are required to be adults, with a rational and intellectual maturity. They also must have high degree of knowledge of religious sciences and courage to make relevant decisions. The executive branch consists of the ministers, appointed by the jurist or by the President. They must meet the following requiremens: being muslims, adulthood, good morals, specialization in a particular discipline, experience and ability in administration. 162 Finally, a general principle of judicial Ibid., p. 537–589. Ibid., Vol. 2, p. 63. 162 Ibid., Vol. 2, p. 115. 160 161

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independence is the strict legality which prevents the court to issue a judgment to third parties where there is no proof. As to their basic features, the judges must possess adulthood, masculinity, the fullness of mental abilities, the Islamic faith, justice, purity of native and knowledge of Islamic science. Muʚammad Bćqir al-ʛadr (1935–1980) developed a theory that, in contrast with the vision advocated by Khomeini, is the nearest to the sunnī orientation. 163 The starting point of what the author calls the Qurʾānic state and the “original sovereignty of God”: while some Prophets exercised political authority directly, the rulers used their authority to concentrate power in their own hands. The ʚćNLPL\\D does not limit the people’s power and connects his destiny to the revelation. Moreover, while God is the source of political authority, the people are the executor. This model is based on a division of roles: for certain rules taken from the sources of Islamic law the application is automatic and immediate. However, when multiple interpretations are lawful, the question should be referred to as a board of jurists appointed directly by the people. Finally, in all fields for which there are no legal provisions in the sources, it is necessary to apply the principle of public authority to the extent appropriate with VKDUĪʰa. This authority belongs to the mujtahid PXʞODT. However, the jurist is assisted in the interpretstion of the Qurʾān by a board of at least ten scholars, in order to execute the principle of the succession of the community (al-NKLOćIDDO-ʰćPPDOLpO-umma). 164 Comparing of al-Ṣadr and Khomeini’s theories, the decisionmaker is, for the first the mujWDKLG PXʞODT, for the second the IDTĪK ʰćGLO. As for the executive and legislative powers shall be exercised Muḥammad Bāqir al-Ṣadr, /DPʚD)LTKL\\DWDPKĪGL\\DʰDQPDVKUŠʰX GXVWŠU DO-JXPKŠUL\\D DO-,VOćPL\\D IĪ ,UćQ,al-Najaf 1979. N. Brown, “Islamic Constitutionalism in Theory and Practice” in E. Cotran, A. O. Sherif, op. cit., p. 501–502. N. Brown, op. cit., 2002, p. 188–189. 164 F. Vahdat, “Post-revolutionary discourses of Mohammad Mojtahed Shabestari and Mohsen Kadivar: Reconciling the terms of mediated subjectivity”, in Critique: Critical Middle Eastern Studies, Vol. 9, No. 17, Routledge, Londra 2000, p. 135–157; S. A. Arjomand, $IWHU.KRPHLQL,UDQ under his Successors, Oxford University Press, Oxford 2009, p. 7. 163

III. ISLAMIC CONSTITUTIONALISM IN THE XX CENTURY 209 by the people in a specific manner prescribed by law and are configured primarily as control powers derived from the real source of power, namely God. The control is exercised through the power to appoint the Head of state, after the decision was upheld by the mujtahid through the power to choose the members of parliament responsible for approving the executive members and legislate in discretionary areas. In the brief essay titled /DʚPD )LTKL\\D, tha author explaines that the function of the mujWDKLG PXʞODT (sometimes also called marjʰa qćʰid) should be inscribed in the constitution since he is the supreme representative of the state and the Commander in Chief of the armed forces. Moreover, he appoints candidates to the President and senior members of the judiciary, decides on the constitutionality of laws enacted by Parliament in areas where it is competent and has the authority to declare war and peace. The mujtahid appoints a council of intellectuals, scholars and experts, at least ten of which able to interprete the sources of Islamic law. The candidates for the role of mujtahid must possess the following three qualities: the ability of conduct ijWLKćG, being honest and possess an intellectual orientation clearly defined and verified through publications and lectures.

4. ISLAMIC CONSTITUTIONALISM IN THE F UQAH Āʯ AL -

WASAṬIYYA DOCTRINE

The intellectuals belonging to the ZDVDʞL\\D are characterized by the attenuation of ideological scope compared with thinkers of the Muslim Brotherhood or the salafiyya. This stream of thought is not a law school properly, but a group of moderate jurists whose vision on the state and religion are being accepted all over the Muslim world. The shaykh Rāshid al-Ghannūshī (1941–) illustrated the salient features of this stream of thought: the primacy of the aims of the VKDUĪ‘a; union of Islamic law with different social customs; synthesis between a “VDODIĪ attitude” combined with the propensity to renewal of Islamic ethics; confidence in the material and spiritual

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change of the community; application of the principles of justice, freedom, consultation and protection of human rights. 165 One of the greatest representatives of this legal stream is Shaykh Yūsuf al-Qaraḍāwī (1926–). He is the author of a text of constitutional doctrine titled Min fiqh al-'DZODIĪpO-,VOćP. 166 The starting point is the emphasis the scholar places on the implementation of VKDUĪʰa, a requirement for any country that professes to be Islamic. The state, in fact, does not precede, but follows the law chronologically and rationally. 167 During the colonial era penetrated the Muslim world the idea that Islam is only religion, not even state. The political systems of some contemporary Arab countries have emulated the change that occurred in Turkey after the collapse of the Ottoman Empire relegating Islam to the role of mere religion and limiting the application of Islamic law in the personal status law. On the contrary, the government must comply with Qurʾān 4:58–59 whose first verse is addressed to the governors, urging them to judge according to justice, while the second is aimed at forcing believers to pay obedience to ZDOĪ DO-amr. 168 That Islam is faith and state is shown by its own nature and by the universal law, the VKDUĪʰa, aimed to delimit human responsibility, so as to eliminate the anarchy. Al-Qaraḍāwī also uses the classical Islamic legal Rāshid al-Ghannūshī, al-:DVDʞLyya al-VL\ćVL\\D ʰLQGD DO-,PćP