Islam and the Civil State

I, therefore, raise a question related on how far are Islam and Islamic communities harmonious with a civil state—where legitimacy is based on the people’s will and where laws are issued by institutions authorized by means of elections? Institutions that pass laws in the interest of the people and with the maximum objectivity possible.

To answer this question, I chose to highlight the actions of Prophet Muhammad (peace and blessings be upon him) as a state leader (an imam) and the features of this imamate (state leadership) as described by classical scholars of usul al-fiqh (principles of Islamic jurisprudence). This methodology sheds new light on these Prophetic actions that have escaped thorough examination, in relation to developing the contemporary Muslim political experience. This will contribute to freeing contemporary Muslims from the shackles of confining ourselves to certain historical experiences, which might restrain a breakthrough that could benefit us from the contemporary human experience.

Diversity of the Prophetic Actions

The Prophet’s actions have been described by many as one dimensional actions that are all divinely inspired. However, several jurists and classical scholars of usul al-fiqh refuted this view and believed that it is contradictory to the nature of the Prophet’s actions. Some scholars proposed divisions for the Prophet’s actions. Chief among these scholars are Abi Muhammad Ibn Qutaybah Al-Dinori (d. AH 276) in his book Ta’wil Mukhtalaf al-Hadith (Figurative Interpretation of the Different Prophetic Traditions); Al-Qadi `Iyad Al-Yahsebi (d. AH 544) in his book Al-Shifa’ bi Ta`rif Huquq al-Mustafa (The Healing by the Rights of the Recognition of the Chosen One); Ibn Al-Qayyim Al-Jawziah (d. AH 751) in several writings; and the Indian scholar Shah Wali Allah Al-Dahlwi (d. AH 1176) in his book Hujat Allah al-Baleghah.

Some scholars proposed divisions for the Prophet’s actions.

Sheikh Muhammad Al-Taher ibn `Ahsour, author of Maqasid al-Shari`ah al-Islamiah, was among the contemporary scholars who made valuable contributions in this field. Yet the pioneer scholar of principles of jurisprudence Shihab Al-Din Al-Qarafi (d. AH 684) was the most elaborative on the different types of the Prophet’s actions. He illustrated these visions in several books of his such as his encyclopedia of Fiqh named Az-Zakhirah, and his book is well known for illustrating these different categories. Finally, there is his specialized book on the subject entitled Al-Ihkam fi Tamiez al-Fatwa `an al-Hakam wa Tasarufat al-Qadi wa al-Imam.

Based on these accumulative efforts, the Prophet’s actions can be generally divided into:

1. Legislative actions. Actions performed by Prophet Muhammad for the sake of setting a model to be emulated and followed. These legislative actions are divided into

a. Actions of general legislation. These are intended for the whole Ummah until the Last Day. These actions are either reported or given as fatwas.

b. Actions of special legislation. These are related to a specific place, time, status, or person and are not general for the whole Ummah. These actions include judicial, imamate, and private actions. These actions are only binding on the person they were directed to and not on others. They are described by some as partial actions or partial legislations or partial discourses.

2. Non-legislative actions. Actions that are not meant to set a model to be followed, neither by the Ummah nor by those to whom it was directed. Among these actions are the instinctual actions, actions concerned with daily life, instructive actions, and private actions.

Such division has its positive influence in understanding religion and dealing with Prophetic traditions against a common one-sided approach of handling these issues—often by people who did not understand the sayings and actions except from one perspective and considered them all of the same nature. They confined the sayings within the framework of the wordings and the linguistic structures, not considering the surrounding circumstances and context. They disregarded the fact that many of the Prophet’s actions were responsive to new givens and were related more or less to special cases. Let alone that such an approach as not paid due care to the purpose of the Prophet’s actions and the related legislative, educational, and preaching objectives. In this context, the Sunnah of Prophet Muhammad (peace and blessings be upon him) turns into abstract principles and rules that have nothing to do with the dynamic reality, the complexity of human life, or the new givens taking place as time goes by. Such approach considers the Sunnah as a legislation that is formulated in an abstract world that has nothing to do with the variables of a specific political or social reality and which is remote even from human nature.

This explains why Shihab Ad-Din Al-Qarafi rendered the differentiation between the different types of the Prophet’s actions as one of the legislative origins that are worth attention and consideration. Having illustrated the different types of the Prophetic actions and the differences between them, he stated that “based on this formula and on these differences, whatever comes to you under this subject can be distinguished in his actions (peace and blessings be upon him), so look closely into this, for it is one of the fundamentals of the religion.”

Ibn Al-Qayyim Jawziyyah also stated an important rule: “Prophetic sayings that are partial and private should not be considered as general [rules], nor should the general ones be considered as private, then fault and contradiction will befall.”

Actions of the Prophet as an Imam

The actions of the Prophet as an imam are defined as those actions of the Prophet (peace and blessings be upon him) as a leader of the state: one who manages the state affairs in a way that maintains its interests and warding off any kind of evil. The Prophet, as a leader, took the necessary decisions and procedures to achieve the objectives of Shari`ah in society. Some scholars describe these actions as those of Shari`ah-based policy or that of the leadership of the state.

Some classical scholars of principles of Islamic jurisprudence tackled the context within which the Prophet’s action took place, in our case here, in relation to state leadership. The Prophet’s actions of leadership, as described by Al-Qarafi, “are supplementary to other Prophetic actions, divine inspirations, religious legislations, and legal judgments.” It follows that Prophetic leadership does not fall into the same state as that of prophetic actions and delivering the divine message. The difference mainly is twofold:

1. The imam, as Al-Qarafi mentions, is the person "authorized to manage the public policy of the people and interests, to ward off evil, to repress criminals, to execute despots, and to accommodate citizens in the territory…"

2. The imam is entitled executive power. This authority is not given to either the mufti or the judge. The fulfilling of the role imamate, by definition, "is meant to include power and governance."

It is important in this regard to examine the Prophetic actions with regard to imamate, to highlight the objective perspective that the classical scholars of principles of jurisprudence insist on taking in relation to this issue. The four most important categories of the Prophetic leadership are discussed below.

1. Special Legislative Actions

The Prophetic actions of leadership, which are not based on the revelation, are special partial actions related to the managing the status and the policy of the society, in a special time, place, and circumstances. Hence, Ibn Al-Qayyim described them as a “partial policy,” according to the implied interests of the Ummah at that time and place and in the light of special circumstances. Al-Taher ibn `Ashour names them “partial legislations.”

Hence they are not binding to the whole Ummah ad infinitum, and leaders and imams, who follow the Prophet, should not blindly uphold them. Rather, they should follow the methodology and pay more attention to the fulfillment of interests that were given due care by Prophet Muhammad in that circumstantial context. Al-Qarafi illustrated that this type of Prophetic action “should not be emulated unless upon the approval of the present imam because he (peace and blessings be upon him) did it under his imamate; no permission to follow this type of action without his [the leader’s] approval.”

Accordingly, these actions related to state leadership have to be referred to the imam or the concerned parties in the society, who make sure that objectives of Shari`ah are taken into consideration and that interests are maintained, as Prophet Muhammad (peace and blessings be upon him) did, with full consideration to the particular place, time, and circumstances of the situation. Inflexible rigidity to these actions, disregarding the need for change, runs counter to the objectives of Shari`ah as well as to the Sunnah itself.

For instance, if we consider the Prophet’s saying “Anyone who cultivates untended land owns it,” this tradition is considered by scholars who see it in the light of political leadership as an authorization during the lifetime of the Prophet to give the right of ownership of land to anyone who cultivates it. After his death, this authorization lay within the authority of the leader or any other concerned party to prevent or to organize such a system according to circumstantial interests. This is the meaning of Imam Abu Hanifa’s saying “no cultivating [and claiming] unattended land except with the permission of the imam.”

The saying of Prophet Muhammad that “whoever kills a [combatant] person [in the state of war] loots him” is, according to al-Qarafi, an action related to contemporary interest as he (peace and blessings be upon him) only said it because this situation necessitated that [action], so to encourage people to fight." This is why Al-Qarafi states, “whenever the imam sees this [hadith] as an interest, he should use it. Whenever it is not in of interest, he should not. This is what we mean by an action related to imamate.”

2. Actions Related to Public Interest

The second important feature of actions of imamate is the fact that these actions aim at the attainment of public interest. Al-`Ezz ibn `Abdul-Salam clarifies that “if it were not for the imam, public interests would have been lost and public harm would have occurred.” The defining characteristic for the head of state (or imam) is, according to Al-Qarafi, “to be aware of managing the interests and the politics of ruling the people.” Similarly, as judiciary relies on pretexts, evidence, and proofs—issuing fatwas is based upon legal evidence—leadership actions rely on “preferred or absolute interest of rights of the Ummah.” This is because “the imam is the one who is delegated to handle the public policy of the people, manage the public interest, prevent the occurrence of harm, fight off criminals, execute tyrants, and accommodate the people.”

Prophet Muhammad once prohibited the storage of meat of the sacrificial animal for more than three nights by saying “store only for three [days] and give away the rest.” However, the next year he said, “I said so to distribute to the needy Arabs visiting Madinah, but now, eat, give to charity, and store what you want.”

Prophet Muhammad prohibited the storage of meat for more than three nights in the first year as he was considering the economic and living conditions due to the large numbers of people coming to Madinah. He meant by this order to solve the crisis and alleviate pressures. `A’ishah even mentioned in another saying, “He [the Prophet] only said that in that year when people were starving. So he wanted the rich to feed the poor.”

This public interest was taken into consideration when dealing with legal rulings. Ahmad Muhammad Shakir considers that “this action on the part of Prophet Muhammad (peace and blessings be upon him) is an action of a leader or a ruler in relation to dealing with people’s interest and is not taken as a rule of legislation in public matters.”

3. Actions Related to Personal Reasoning

When Prophet Muhammad (peace and blessings be upon him) was transmitting Allah’s words or clarifying matters of religion, he did so according to what was divinely inspired; whereas when he made a decision as an imam or a political leader, he always worked according to his personal reasoning (ijtihad), which was subject to right or wrong. The second matter is agreed upon by all classical scholars of principles of jurisprudence and jurists. That concept was reported by Muhammad ibn Ali Al-Shawkani: “It is agreed upon among Muslim scholars that prophets may resort to personal reasoning in relation to daily affairs, wars, and the like. Such consensus was told by Selim Al-Razi and Ibn Hazam; the same was actually done by our Prophet (peace and blessings be upon him) when deciding to effect a reconciliation with [the tribe of] Ghatfan regarding the issue of Madinah fruits, and when he suggested not to pollinate Madinah plants.” Abu Bakr Al-Jasas, Abu Al-Hassan Al-Basri, Imam al-Juwayni, and Fakharu Al-Din Al-Razi favor this opinion. The same was emphasized by Ibn Battah through Taqi Al-Din Ibn Taymiyah: “The Prophet was held responsible by Allah for some of his decisions and orders, and this is a clear evidence that many of them were based on independent views and judgment. This applies to the Prophet’s judgment on matters like Badr captives, agreeing to taking their redemption, and permitting people who came to him with whatever excuse to be discharged from the Tabuk battle, until others with no excuse discharged themselves. Also the verse [consult them about the matter] (Aal `Imran 3:159). If that judgment was divine inspiration, then the Prophet would not have needed consultation.”

The aforementioned clarifies a lot of the Prophet’s political actions and decisions, and points out that many of them were based on mere personal reasoning.

Consulting his Companions in his decisions is a further evidence that the Prophet’s actions as an imam were based on personal reasoning. If the issue had been a matter of divine inspiration, he would not have resorted to consultation. Actually, he listened to their opinions, consulted experts, and contemplated and discussed matters willingly.

The Companions used to distinguish between his role as a conveyer of a message and divine inspiration and his role as a political and military leader. If they were confused, they would ask the Prophet for clarification. An example of that was the question of Al-Hubab ibn Munzir when he asked the Prophet (peace and blessings be upon him) about the location chosen in Badr: “Is it a place chosen by Allah or is it a matter of opinion, war, and maneuver?” Another example was evident in the question of Sa`d ibn Mu`adh and Sa`d ibn `Ubadah in the battle of the Khandaq (Trench): “O Messenger, is it a matter you prefer and so we will do it, an order of Allah we have to obey, or an action you do for our favor.”

4. Actions Related to “Non-Religious” Matters

A term used by Al-Qarafi to illustrate that personal reasoning of the leaders is only appropriate when related to “whatever is disputed over worldly interests. He added, "this inevitably excludes personal reasoning in matters of rituals (`ibadat), since debate over them is related to the Hereafter’s affairs and not to everyday-life matters; thus, naturally, there is no room in them for independent reasoning on the part of the ruler.”

Differentiation between matters of this world and those of the Hereafter is of key importance; it should, however, be understood within the Islamic comprehensive outlook of the relation between the religious and worldly matters and not within a framework of an ecclesiastical matter from a Western outlook. Here, we put the “religious” between quotation marks because the term “religion” has two meanings in Shari`ah texts.

The first meaning comprises all the activities and pursuits related to Muslim life, politics included. Any righteous deed effected by a Muslim is generally an act of worship and a kind of a charitable deed as long as the intentions are merely for Allah’s sake. The aforementioned can be listed under the term “religion.” Fiqh books dealing with practical religious judgments include chapters on prayers, fasting, and zakah, in addition to judgments related to family affairs, marriage, divorce, and inheritance. They also include judgments related to economic activity such as sales, usury, mortgage, crop-sharing, and tenancy, in addition to chapters related to political activity such as imamate, enjoining the good and forbidding evil, jihad, and the mobilization of the army. The aforementioned are deemed as matters of religion, that is to say that religion is any and every useful righteous act effected by the Muslim.

The second meaning is specific: meaning the opposite to worldly life. It was mentioned in one of the Prophet’s sayings “If it is a matter of religion, I am for it; if it is a worldly matter, make your affair.” The meaning of "religion" as meant here is evident in the following saying. Prophet Muhammad (peace and blessings be upon him) saw people standing beside some palms and asked what they were doing. They said, “They are cross pollinating.” Then he said, “I think it will be of no effect.” They accordingly left the operation, and hence the palms stopped bearing fruits. Taking knowledge of that, he said, “Go on if it is useful for you. I only assumed it. So don’t take me up on my opinion in this matter as an order. Follow my words if I am talking about Allah, as I would never lie about Allah.” In another saying, Prophet Muhammad (peace and blessings be upon him) said, “If I make an order in matters of religion, then take it. And if I make an order based on my own judgment, then consider that I am a human.” What's religious is actions based on divine inspiration or on reasoning in matters related to religion that are equivalent to the status of inspiration. What's worldly is actions based on reasoning with worldly matters are mere opinion or personal judgment.

Underscoring the Prophet’s actions of leadership in the light of worldly interests is significant for the coming reasons:

· This excludes them from the second meaning of religion. This proves the existence of clear distinction in Islam between religion and life, political activity and mere religious acts.

· This clarifies Islam’s intentions to strip political activity of any kind of holiness, so as to stop monopoly in the name of religion and unfetter restrictions imposed on creativity and freedom.

· Such distinction is also meant to clarify that the Prophet (peace and blessings be upon him) inevitably altered his actions as an imam in case that a change happened in the public interests on which they are based. Such understanding is unanimously agreed upon.

Some Prophetic actions as an imam are not binding for any legislative body, and we may not just stick to them on the presumption that they are Sunnah. Concerned parties ought to follow the approach and method adopted by the Prophet (peace and blessings be upon him) based on consideration of legitimate public interests. No one is to make judgments based upon such actions unless he is in a position of management and legislation. When Ibn Al-Qayyim reported some of the actions of the Prophet (peace and blessings be upon him) and caliphs with regards to Shari`ah-oriented policy, he mentioned that “such is a temporary policy, changing according to interests and ages. Some considered these actions as an ever-binding public legislation; everyone has their excuses and reward. Everyone who works on interpreting such matters for sake of Allah and His Messenger has either single or double that reward.”

Creating the Civil State

The Prophet’s actions as an imam with regards to Shari`ah-based policy have given vent for renovation of political fiqh and for reconsidering many of its issues. They also set the basis for a methodological awareness of Shari`ah-based policy and propagate such awareness among those interested in the Islamic revival, theoretically and practically.

The distinction in Islam between what is inspired and what is created by man is principally clear and natural, especially in relation to matters connected to political activity. An insightful understanding of the Prophet’s actions as an imam offers a key and solid systematic base for many of the current issues related to modern Islamic political thought, some of which are mentioned in the following:

1. A sound understanding of the Prophet’s actions as an imam—which are unbinding—offers a key and rigorous systematic base for many of the current issues related to modern Islamic political trends of thought.

Characteristics of the Prophetic actions as an imam point out that the Islamic state is essentially civil and not a religious one as deemed in the Western political approach. The nature and characteristics of the Prophet’s actions as an imam stress that Islam attributes no holiness to practices and decisions of leaders, or to methods adopted by the state to manage the Ummah’s affairs. The state in Islam is not theocratic, as there is no state that is inspired by transcendental powers or by revelation.

The state in Islam is a worldly state, one whose decisions are human and whose duty is to adopt the best of subjective and practical policies to manage affairs of society. A leader in Islam does not acquire legitimacy from a transcendental power; he is an ordinary person willingly authorized and chosen by the Ummah of which he is representative and before which he is liable. He is, above all, liable for each and every action before Allah.

Classical Muslim political jurists highlighted such meanings when defining Shari`ah-oriented policy or the functions of imam in Islam. Some of their opinions are, however, misunderstood. Abu Al Hasan Al-Mawardi defined imamate as “a deputyship on behalf of the prophethood in protecting religion and worldly politics.” Ibn Khaldun said, “It is an authorization to protect religion and worldly politics.” Then he said, “as for calling him a caliph, it is because he is a successor to the Prophet in handling the affairs of the Ummah”.

Succession of prophethood might convey some ambiguity on the meaning of imamate. However, the nature of Prophetic actions in this regard clarifies that the people of authority are to succeed the Prophet in his position as a leader, which he handles using his human characteristics and in which he practiced independent political practices, in relation to which he is not infallible. Yet, according to the consensus of the Muslim scholars, Muslim leaders don't succeed the Prophet in the prophethood, which entails conveying the message and the Prophet is infallible in this regard.

2. The relation between what is religious and what is political has taken different and contradictory forms in contemporary thought. This applies as well to the West, despite all common grounds between the Muslim experience and the West.

It is necessary in this regard to benefit from others’ experiences in establishing our democratic model. Human political experiences have greatly contributed to achieving stability of their nations and to rationalizing peoples’ contribution in the management of the state affairs. An in-depth reading of the Western political experience enables us to reach a model that combines both the religious and the positive laws, one that responds to our special needs and helps us achieve any necessary requirements. This necessitates, in return, the exclusion of any sacredness marking the political aspects of religion, excluding the general principles and the main objectives of Shari`ah. The remaining is a human, worldly matter, and the Prophet’s actions of leadership in this context are purely human.

Muslim constitutional jurists (ancient and contemporary alike) agree that the Ummah or the people is the origin of legitimacy for the state. Prophet Muhammad himself (peace and blessings be upon him) died without appointing a successor. He (peace and blessings be upon him) totally left the matter for people not only to select the person they want, but also to choose the method of selection. Such action on the part of the Prophet constitutes a meaningful constitutional precedent. Leaders are chosen only by their people; agreement of pledge of allegiance is a contract concluded between the ruler and the ruled, where total consent is the main condition without which the contract is null and void. The ruler, after all, is one individual selected from the Ummah to manage power; he is not privileged as a result of that selection, and he should act according to the contract concluded.

Classical and contemporary scholars alike contributed several arguments in this regard. Yet I mention only Imam Shafi`i’s argumentation. He usually refers to the Prophet’s saying “No prayer is accepted from an imam (prayer leader) hated by people … ” He concluded that “it is discouraged for a person to be an imam to a group of people who hate him.” Then he applied such principle to the political aspect: “It is disliked for a person to rule people who hate him. And if he does while the majority does not hate him and the minority do, I say it still is so, for the principle of disliking running for wilayiah (ruling) in general.” It is undoubtedly a splendid inference; if it is unaccepted to be an imam for people hating the imam, the same can be applied to the principle of ruling.

Legitimacy in Islamic history usually depended on the Ummah one way or another. New nations were founded on the ruins of others, which failed either to attain internal justice or stability or to protect the Islamic territory of the Ummah against enemies. Someone was usually motivated to establish a state that could attain both purposes, so people in turn gathered around him, hence giving legitimacy to his rule. This case is reminiscent of the emergence of the nation-state project or other forms state in the Arab world, which were established by a revolution. These states in one way or another responded to popular hopes of liberty and social justice. These states were hence hailed at the beginning, yet they soon turned to states of oppression and coercion for several subjective and objective reasons, and they consequently failed to attain either liberalization or social justice.

Relating legitimacy to fulfillment of the Ummah’s basic needs was described as religious legitimacy, yet not in the theocratic sense of the word. Rather, this means that the legitimacy of such Ummah is more dependent on the ability to protect the religion and to foster the Islamic Ummah. In other words, it is a civil state, with popular legitimacy, authorized to protect the religion of the Ummah, exactly as modern states undertook responsibility of protecting their people and interests.

By the same token, this principle can be applied to other constitutional articles such as the amendment of political institutions, elections, setting the terms for their office, and defining the relation between different authorities, their independence, etc. The aforementioned is subject to independent human reasoning.

3. Dealing with the historicity of the rule of the rightly-guided caliphs: The Islamic experience in the age of the caliphs has always dominated political and legislative contemporary Islamic thought. It is, undoubtedly, an outstanding and superior experience; however, this does not mean that it has any direct implications that surpass its age, place, and the surrounding circumstances.

If the Prophet’s political practices are relative, then the Caliph’s experience is definitely relative. If we are obliged to follow in the footsteps of the Prophet’s general methods as a state leader, without intransigent adherence to partial rulings, we have then to take the rightly-guided caliphs as models only with regards to their following the Prophet, their interaction with the variable Islamic reality, and their application of religious statements.

Institutional forms, constitutional mechanisms, legislative and political interpretations during the age of the caliphs are mere human outcome governed by the historical context, cultural circumstances, and milieu of that age. Such legacy should not by any means turn into an indispensable part of religion binding on all Muslims in all ages. Human political thought and culture have always been overwhelmed by some axioms that have influenced the Muslims’ understanding of the Islamic political system. These axioms hindered Muslims from achieving the purposes of Islam except within limits of human cultural environment available in every age. The Qur’an, however, is an inspiration from which people benefit in accordance to their potentials, which they will never exhaust its intended teachings.

Having an Islamic state as a civil one that derives its legitimacy from its citizens makes Muslims more open to the incessant development of the form of government according to the humanly generated mechanisms and systems. This makes them, as well, more capable of applying the best form of democracy, which they can even further enrich with Islamic principles and values that convey loftiness of belief, and social and human depth upon the endorsed democratic form.

**Saadedine El `Othmani is the Secretary general of the Justice and Development Party in Morocco.

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