Scholars and state: Mystique of mix and separation of clergy and power

(Dr Shujaat Ali Quadri)

Soon after the death exalted Prophet in 632 CE, the Muslim community struggled with the idea of carrying on his legacy both in knowledge and power. In order to find to a solution to this conundrum, the early period community appointed a new leader, giving rise to the title of caliph (Arabic: خَليفة, romanized: khalifa, or successor). Thus, the subsequent Islamic empires were known as “caliphates”, and a series of four caliphs governed the early Islamic empire: Abu Bakr (632–634), Umar ibn al-Khaṭṭab (Umar І, 634–644), Uthman ibn Affan (644–656), and Ali ibn Abi Ṭalib (656–661). These leaders are known as the rashidun (rightly-guided) caliphs in Sunni Islam. They oversaw the initial phase of the early Muslim conquests, advancing through Persia, the Levant, Egypt, and North Africa, and also the development of the Islamic scholarship.

Early Caliphate and Struggle for Political Space

Alongside the growth of the Umayyad Caliphate, the major political development within early Islam in this period was the sectarian split and political divide between Kharijite, Sunni, and Shia Muslims; this had its roots in a dispute over the succession for the role of caliph. Sunnis believed the caliph was elective and any Muslim from the Arab clan of Quraysh, the tribe of Muhammad, might serve as one.  Shias, on the other hand, believed the title of caliph should be hereditary in the bloodline of Muhammad.

An important Islamic concept concerning the structure of ruling is the shura or “consultation” with people regarding their affairs, which is the duty of rulers mentioned in two Quranic verses: 3:153 and 42:36. One type of ruler not part of the Islamic ideal was the king, which was disparaged in the Quranic mentions of the Pharaoh, “the prototype of the unjust and tyrannical ruler” (18:70, 18:79) and elsewhere (28:34). The phrase Ahl al-Ḥall wa’l-‘Aḳd (Arabic: أهل الحل والعقد, lit. ‘Those who are qualified to unbind and to bind’) was used in order to denote those qualified to appoint or depose a caliph or another ruler on behalf of the Ummah.

Election or Appointment

Al-Mawardi, a Sunni Muslim jurist of the Shafiʿi school of Islamic jurisprudence, wrote that the caliph should be a member of the Quraysh tribe. Abu Bakr al-Baqillani, an Ashʿarī Sunni Muslim scholar and Maliki jurist, wrote that the leader of the Muslims simply should be elected from the majority. Abu Hanifa an-Nu‘man, the founder of the Sunni Ḥanafi school, also wrote that the leader must come from the majority.

Western scholar of Islam, Fred Donner, argues that the standard Arabian practice during the early caliphates was for the prominent men of a kinship group, or tribe, to gather after a leader’s death and elect a leader from amongst themselves, although there was no specified procedure for this shura, or consultative assembly. Candidates were usually from the same lineage as the deceased leader but they were not necessarily his sons. Capable men who would lead well were preferred over an ineffectual direct heir, as there was no basis in the majority Sunni view that the head of state or governor should be chosen based on lineage alone.

Majlis ash-Shura

Deliberations in the politics of the early caliphates, most notably the Rashidun Caliphate, were not “democratic” in the modern sense of the term; rather, decision-making power laid with a council (shura) of notable and trusted companions of Muhammad (ṣaḥaba) and representatives of different Arab tribes (most of them selected or elected within their tribes). Traditional Sunni Muslim jurists agree that the shura, loosely translated as “consultation”, is a function of the Islamic caliphate. The Majlis-ash-Shura advises the caliph. The importance of this is premised by the following verses of the Quran:

“…those who answer the call of their Lord and establish the prayer, and who conduct their affairs by Shura (are loved by God)” [42:38]

 “…consult them (the people) in their affairs. Then when you have taken a decision (from them), put your trust in Allah” [3:159]

The majlis were also the means to elect a new caliph. Al-Mawardi wrote that members of the majlis should satisfy three conditions: they must be just, they must have enough knowledge to distinguish a good caliph from a bad one, and must have sufficient wisdom and judgment to select the best caliph. 

Separation of Powers

After the rashidun caliphs, later caliphates during the Islamic Golden Age had a much lesser degree of democratic participation, but since “no one was superior to anyone else except on the basis of piety and virtue” in Islam, and following the example of Muhammad, later Islamic rulers often held public consultations with the people in their affairs.

The legislative power of the caliph (or later, the sultan) was always restricted by the scholarly class, the ulema, a group regarded as the guardians of Islamic law. Since the sharia law was established and regulated by the schools of Islamic jurisprudence, this prevented the caliph from dictating legal results. Sharia-compliant rulings were established as authoritative based on the ijma (consensus) of legal Muslim scholars, who theoretically acted as representatives of the entire Ummah (Muslim community). After law colleges (madrasas) became widespread beginning with the 11th and 12th century CE, students of Islamic jurisprudence often had to obtain an ijaza-t al-tadris wa-l-ifta (“license to teach and issue legal opinions”) in order to issue valid legal rulings. In many ways, classical Islamic law functioned like a constitutional law.

Practically, for hundreds of years after the fall of the Rashidūn Caliphate (7th century CE) and until the first half of the 20th century, Muslim-majority countries usually adopted a system of government based on the coexistence of the sultan and ulema which followed the rules of the sharia law. This system resembled to some extent some Western governments in possessing an unwritten constitution (like the United Kingdom), and possessing separate, countervailing branches of government (like the United States), which provided a clear separation of powers in socio-political governance. While the United States and some other systems of government have three separate branches of government — executive, legislative, and judicial — Islamic monarchies had two: the sultan and the ulema.

According to the French political scientist and professor Olivier Roy, this “de facto separation between political power” of sultans and emirs and religious power of the caliph was “created and institutionalised … as early as the end of the first century of the hijra.” The sovereign’s religious function was to defend the Muslim community against its enemies, institute the sharia, ensure the public good (maslaha). The state was an instrument to enable Muslims to live as good Muslims and Muslims were to obey the sultan if he did so. The legitimacy of the ruler was “symbolised by the right to coin money and to have the Friday prayer (Jumah khutba) said in his name.”

British lawyer and journalist Sadakat Kadri argues that a large “degree of deference” was shown to the caliphate by the ulema and this was at least at times “counterproductive”. “Although jurists had identified conditions from mental incapacity to blindness that could disqualify a caliph, none had ever dared delineate the powers of the caliphate as an institution.” During the Abbasid caliphate:

When Caliph Al-Mutawakkil had been killed in 861, jurists had retroactively validated his murder with a fatwa. Eight years later, they had testified to the lawful abdication of a successor, after he had been dragged from a toilet, beaten unconscious, and thrown into a vault to die. By the middle of the tenth century, judges were solemnly confirming that the onset of blindness had disqualified a caliph, without mentioning that they had just been assembled to witness the gouging of his eyes.

According to Noah Feldman, law professor at Harvard University, the Muslim legal scholars and jurists lost their control over Islamic law due to the codification of sharia by the Ottoman Empire in the early 19th century:

How the scholars lost their exalted status as keepers of the law is a complex story, but it can be summed up in the adage that partial reforms are sometimes worse than none at all. In the early 19th century, the Ottoman Empire responded to military setbacks with an internal reform movement. The most important reform was the attempt to codify Shariah. This Westernising process, foreign to the Islamic legal tradition, sought to transform Shariah from a body of doctrines and principles to be discovered by the human efforts of the scholars into a set of rules that could be looked up in a book. Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority. Codification took from the scholars their all-important claim to have the final say over the content of the law and transferred that power to the state.

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