The Caliphate of Man by Andrew F. March

Author:Andrew F. March [March, Andrew F.]
Language: eng
Format: epub
ISBN: 9780674987838
Publisher: Harvard University Press
Published: 2019-09-16T18:30:00+00:00

6

A Sovereign Umma and a Living Sharīʿa

I ended the Chapter 1 of this book by synthesizing a number of different literatures in Islamic constitutional and democratic theory. These included scholarly monographs on Islamic constitutional jurisprudence (fiqh dustūrī) or “the principles of government” (uṣūl al-ḥukm) in Islam, treatises written by Islamist public intellectuals or independent intellectuals sympathetic to political Islam, and some of the texts issued officially by Islamist groups. My claim there was that, for all their differences of style, motivation, and emphasis, there are some points of general consensus that together form a kind of plateau on which modern Islamic constitutional debates are conducted.

These points of general consensus include the view that the people is, broadly-speaking, the source or origin of the legitimacy of political institutions (maṣdar al-suluṭāt), can elect and supervise political officers, and can participate in various forms of consultation and lawmaking. Similarly, it is broadly agreed that elected rulers are agents or civil servants subject to the law and limited in their authority. Moreover, although elected representatives and state officials have broad powers of legislation and policy making, what makes a political order Islamic is that all laws and enactments must be subject to sharīʿa review of some kind. This is what is meant when some contemporary Islamic constitutional theorists claim that the state in Islam is neither theocratic nor fully secular, but rather a “civil state” with an Islamic referent.

That some of these views require arguing for and defending should be clearer now after the subsequent chapters. The classical tradition of Islamic governance largely assumed a condominium of authority between rulers and scholars, both of whom together and separately the people were said to have a religious obligation to obey. Rulers and scholars overlapped in their authority, but can be said to have represented a different face of Islamic legal normativity. Where the scholars speak for revelation and the history of its interpretation, rulers and other public officials speak for what the public interest requires in any given moment. If these two authorities are accountable to any authority besides each other, it is to an ill-defined body of elite representatives of the community, known generically as the People Who Loose and Bind. Importantly, not only do all of these authorities rule by their own self- and mutual recognition, but this entire “constitutional” system is often said to be mandated by God.

Moving into the twentieth century, these conceptions of legitimacy did not just fall away with the modern nation-state. Islamic constitutional theory from the fall of the Ottoman Empire does not univocally reject the legitimacy of appointment to supreme political office, or even authorization of an entire regime, by a body of scholars and other notables recognizing itself as the People Who Loose and Bind. Still less is the people’s legislative sovereignty universally accepted. The distinguishing feature of Islamism is that it claims to locate sovereignty solely in the divine law. Given that the technical aspects of the divine law cannot be denied, epistocratic claims to authority on the part of scholars or experts in an “Islamic state” do not vanish.

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