The Princeton Encyclopedia of Islamic Political Thought

constitutionalism

In the most general sense, constitutionalism is the legal regulation of political power, which includes the delimitation of the rightful acquisition, use, and distribution of legitimate political authority and the regulation of relationships among holders of political power and authority and their subjects. Thus while in contemporary parlance to speak of “constitutionalism,” Islamic or otherwise, may signify substantive commitments to limited political authority, the regular rotation of power, and the rights of citizens, in this entry the term refers more generally to all thought on public law.

In the pre-Ottoman tradition, constitutional ideas were expressed in debates over the (1) rightful claims to the caliphate; (2) classical rules on the status and qualifications of rulers, succession, rebellion, and political unity; and (3) the functions of government. These debates revealed classical Islamic views on the core issues of constitutionalism: rightful authority, the rightful use of authority, divisions of authority, and limitations on authority.

Doctrines of Rightful Claims to the Caliphate

The early consensus held the caliph (or imam) himself as crucial to salvation because he gave the community legal status and guided it. The Muslim community was thus regarded as a vehicle of salvation. The assassination of the third caliph (‘Uthman b. ‘Affan) in 656 raised for the first time the question of whether ‘Uthman had been an imam of guidance or of error. If he had been an imam of guidance, then his successor, ‘Ali b. Abi Talib (r. 656–61), would be a usurper, and the community following him would be considered unbelievers. If he was an imam of error, then he had forfeited the caliphate, rendering ‘Ali a legitimate imam. These questions were never resolved to the satisfaction of all Muslims.

In the long run, the basic divide was between those who held doctrines of inheritance (legitimism) and those who held doctrines of merit. Hybrid doctrines involved restricting the election of the most meritorious to a particular family or tribe, whether the Prophet’s tribe (the Quraysh) at large or his own descendants (ahl al-bayt).

The Umayyads (661–750) grounded their right to rule in the legitimacy of ‘Uthman and their right to avenge their kin’s death. Their rule represented a restoration of the practice of selection through tribal council (shūrā) of the best man among the Quraysh. They gave two justifications for their return to dynastic succession: (1) each ruler was asserted to be in fact a man of unsurpassed merit, indeed, the best man of his age, and (2) their successful acquisition and retention of power was said to suggest both this merit and God’s will. Thus they were “God’s vicegerents” (khalīfat Allāh), a politicization of the prevailing deterministic theology.

The Shi‘is (‘Alids) grounded right government in right lineage, specifically the house of the Prophet through ‘Ali and his wife Fatima. That the ‘Alids were to become the Shi‘is and the party of opposition and protest emerged only after the Abbasids established themselves as a dynasty from a different branch of the Prophet’s Hashimi clan. Under the Umayyads, “Hashimi Shi‘ism” was the term for the general opposition based on the popularity of the Prophet’s wider clan. After the Abbasid revolution (749–50), the opposition was known as ‘Alid Shi‘ism, which asserted that ‘Ali was designated caliph already by the Prophet. This doctrine is called rafḍ, or “rejection” (i.e., of the first three caliphs as usurpers of ‘Ali’s right). Their line ended at 12 imams after the Abbasids successfully excluded them politically.

The Abbasids (750–1258) grounded right government in right lineage, specifically the house of the Prophet through his uncle ‘Abbas. Early on in their reign they circulated stories of a designation from ‘Ali to the Abbasids or, alternatively, of the bequeathal of the imamate from the Prophet to ‘Abbas. This, incidentally, also implied a doctrine of rafḍ (rejection of the first three caliphs). They gradually reformulated a doctrine that recognized Abu Bakr and ‘Umar al-Khattab and then even ‘Uthman and ‘Ali, resulting in the commonly known four Rightly Guided Caliphs thesis. The only stable position from beginning to end was that they were members of the Prophet’s family (ahl al-bayt) who had rendered themselves deserving of the imamate over all other kinsmen of the Prophet by deposing the Umayyads.

The Kharijis were a group of ‘Ali’s supporters in the war against ‘Uthman’s kin who assassinated ‘Ali for his willingness to subject the quarrel to arbitration. Their doctrine of legitimate rule was a radically meritocratic one. Anyone (famously, “even an Ethiopian [freed] slave”) could be the imam, with no descent criterion whatsoever. They imposed strict election conditions, and some even held that the imam must be elected unanimously by all Muslims. However, the caliph was required to rule Islamically; otherwise he could be deposed and killed by the community. Some (the same group that insisted on unanimous election) claimed not only that the caliphate was not necessary but also that it had never existed.

From the beginning of the civil wars, there were those who stuck to communal unity and refused to form separatist communities under present or future imams even though they might regard the present caliph as sinful. Around the ninth and tenth centuries, they became “Sunnis.” They declared the caliphate elective within the Quraysh to legitimate both the Umayyads and the Abbasids while distinguishing themselves from Shi‘i hereditary succession. Communal unity, however, was more important to them than right government, and the community was formed by the guidance left by the Prophet (through the hadith), not by any imam of the day. Sinful imams were to be endured and passively resisted, not openly rebelled against.

The Classical Sunni Rules

Once the caliph was “the deputy of the Prophet” (not of God) and came to symbolize religious and political unity, not religious doctrinal authority, and the scholars appointed themselves as the guardians of religious truth, it was important to specify a set of rules (aḥkām) for legitimate political rule. This is the true “constitutional” heritage of classical Islam: that the Islamic polity was a community of law and that the determination of the law was in the hands of the scholars, not the rulers.

The caliph was supposed to be from the Quraysh, but this was flexible. He had to be free of physical and mental handicaps and had to be a man of probity (‘adāla), piety (wara‘), and significant religious legal knowledge (ijtihād), with a talent for governance and warfare. Ideally, he was supposed to be the most meritorious man of his time.

The Sunni scholars spoke of “election,” but by this they meant simply that the caliph was selected by “the community” in some way, as opposed to the imamate having an inherent, transcendent personal quality, as the Shi‘is believed. In the Sunni view, no one was born an imam; one had to be chosen by someone else (an existing caliph, a group of select notables [“the people who loosen and bind”], or later, from the tenth century on, even a “warlord” [dhū al-shawka]) and be recognized through the oath of allegiance (bay‘a).

How imperfect could a caliph be and still be the caliph? He certainly could not leave Islam or suffer serious physical or mental disabilities. The real question related to when the caliph lost his “probity,” both personally and as a ruler. The basic answer was that while immorality (fisq) disqualified a candidate for election, it did not automatically make him subject to removal. Removing him could be done only through civil war, which was a much worse source of disruption, disorder, bloodshed, and corruption for the “people of (the Prophet’s) authoritative practice and communal unity” (ahl al-sunna wa-l-jamā‘a). This, perhaps, was the single great lacuna in the basic Sunni “constitutionalism” described earlier and what prevented Sunnism from developing constitutionalism proper.

Of course, the diminished role and status of the caliph allowed this pragmatic view: he simply didn’t matter enough to risk civil war. The idea that the community (in the form of religious scholars, perhaps) should take an active role in deposing an unjust ruler was hardly rare. Thus the following positions could all be found: (1) the ruler must be obeyed and tolerated; (2) rebels are to be fought but pardoned; (3) rulers can be deposed, but we do not have precise rules on how it is to be done and on what cost. On the other hand, there was a certain sympathy for rebels (bughāt) who revolted (khurūj) in great enough numbers (shawka) and with a religious “interpretation” (ta’wīl). They were to be treated leniently afterward and not held responsible for destroyed lives and property. “Bear the ruler but spare the rebel” encapsulates the position. The Sunni position was not Hobbesian (might makes right) or absolutist. In fact, though the Sunni scholars valued stability and legal order above all else, the state per se was not the highest object of loyalty, and the state had no monopoly on religious or moral interpretation. Both of these, loyalty and religious interpretation, belonged to the community. The community and the practice of Islamic interpretation was the essential, transcendent, necessary reality. Thus rebels could be pardoned both because the pardon contributed to reconciliation and unity and because the scholars might be able to understand the reasons for the rebellion. And, of course, rebels who won would then be accepted and obeyed. (The concept of “moral luck” is also at work here: rebels who won and imposed a more pious order could in fact be lionized.) This is evidence of tensions—but not outright contradictions—in Sunni thought between obedience, order, and stability on the one hand and piety, justice, and “commanding right and forbidding wrong” on the other.

Mawardi (d. 1058) began the trend of recognizing those who usurped power in the provinces (imārat al-istīlā’). The idea in doing so was to keep both the fictional unity of the umma or jamā‘a and the continuity of legal order intact. These ideas were developed by Mawardi’s contemporary Juwayni (d. 1085) who argued that the caliphate or imamate existed to keep the people together on a shared basis of Islamic law, which itself required not only legitimacy but also power and competence. Everything else, such as Qurashi descent, was dispensable. Juwayni’s solution to the Sunni scholars’ dilemma of prohibiting rebellion but also wanting actual coercive power to be in the hands of the caliph was to say that a warlord could not only usurp power but also take the next step of seizing the caliphate. In effect, he wanted to make the real power lie in the hands of the caliph, whether that was the “sultan” of the time or even the “minister” (wazīr; e.g., a figure like Nizam al-Mulk). This was a proposal to secularize the caliphate. If actual power was already in the hands of warlords, why keep a spare figure who has neither power nor religious authority? Juwayni thought it better to induce the actual power to assume religious and symbolic legitimacy. Juwayni’s student, Ghazali (d. 1111), advocated the opposite solution. Whereas Juwayni seemed to want an effective ruler, Ghazali wanted a legitimate imam. For Ghazali, the legitimacy of the legal order and public sphere (judges, marriages, deputies) all depended on their being appointed by a legitimate imam. Perhaps in response to the Isma‘ilis’ claims to live under a true imam of guidance, Ghazali seems to have felt that the Sunnis needed a “real imam” who represented genuine Islamic learning or to argue that ijtihād was not a requirement of the imam, who existed solely to validate communal Islamic life. He thus seemed to believe that without somehow showing the present imam to be legitimate the community would lose its public sphere. What this involved is not finding the man who would be a legitimate imam, or giving the imamate to the sultan of the day, but to keep redefining the role and qualifications of the imam so that the existing one would be legitimate. Thus Ghazali preferred to recognize the secular power of the Turkish sultans to the extent that their power was what identified the caliph (by formally acknowledging him and symbolically offering him their allegiance), while his reciprocal recognition legitimated them. If the secular ruler supplied the power, the caliph supplied the moral purpose for which power was to be used. One needed a ruler (power) to acquire a ruler (authority). The idea was thus to be realistic about the emergence of actual military power but also to not lose hope about the possibility of taming this power, of convincing it that it served a higher moral purpose.

The Functions of Government

The jurists expressed their views of the limits on the use of power largely through discussions of the ruler’s obligations. Those obligations were divided into Shar‘ī duties (those prescribed by the religious law) and non-Shar‘ī duties (those tasks that were recommended or beneficial but not mandatory).

Shar‘ī Duties

Validation of the community. Flexibility on this issue became the hallmark of Sunnism. Activist groups like the Zaydis and Kharijis did not flourish, while the Imami Shi‘is became quietist.

Validation of public worship. The Muslim holy day of Friday was to be marked by a communal prayer that a just imam was supposed to validate. Thus groups that believe the present ruler was unjust would hold that there could be no Friday communal prayer. The Sunnis, however, held that Friday prayers (as well as the payment of the zakat and ṣadaqa religious alms taxes) could continue despite an immoral imam or later in the absence of any imam whatsoever. These matters were subject to sectarian disagreements.

Execution of the law. This was the essence of the imam’s functions and the one from which all others derived. It consisted of establishing courts and appointing judges and local governors. With the weakening and then occasional absence of such an imam, the jurists debated whether the scholars themselves could establish and validate legal authority. It was Ghazali’s position that the entire edifice of Muslim society required legitimate appointment by an imam, but this position did not withstand the events of history. The essence of Sunni constitutionalism was that the law that the imam or ruler was meant to implement was not his to determine. At most, the legal political order could tolerate the ruler’s discretionary authority granted and circumscribed by the law.

Execution of the ḥudūd punishments. The ḥudūd were a set of limited punishments for the worst moral offenses, such as murder, adultery, false accusation, highway robbery, theft, wine-drinking, and (sometimes) apostasy and blasphemy. The corporal nature of the punishments involved lashing, amputation, or death. Originally, the application of these punishments was the monopoly of the imam, since they addressed violations of the “rights of God,” not private or civil offenses. Some scholars (across various sects) argued that only jurists and judges could order the punishments; others argued that certain punishments, including those for adultery, could be administered in private. Such debates addressed various aims and imperatives: not only obeying God, upholding morality, and creating an Islamic order but also preserving social peace and stability, avoiding anarchism, and respecting the privacy and presumptive innocence of Muslims.

Jihad. There were two kinds of jihad: defensive and missionary. The protection of Islamic lands against an outside invasion did not require the presence or permission of an imam. The use of force to bring Islamic law to unbelievers, however, could be done only with the leadership of a rightful imam. Thus Shi‘is who held the imam to be absent also held that the duty of jihad had been suspended. Among the Sunnis, missionary jihad was a collective duty (farḍ kifāya) that the community had to discharge. Thus Sunni scholars willing to see the legal life of the community continue in the absence of a just ruler had the resources to see jihad as something the community could validate; it could not be suspended merely by the lack of a just ruler.

Commanding right and forbidding wrong. There was a general duty in Islam to “command the right and forbid the wrong”—that is, to promote morality as revealed in the law. The institution of the ḥisba was the expression of this. The imam was supposed to appoint a person to supervise the market and public morals (office holder: muḥtasib). Like jihad, this was a collective duty, although, also like jihad, there could be individual duties in connection with it. The ability of individual Muslims to take the enforcement of morality into their own hands is a matter of debate. Some scholars, seeing the capacity for anarchy and the violation of privacy, insisted that only public officials could enforce morality. Others held that self-help was permissible in the enforcement of morality; all Muslims were their brother’s keepers, so to speak. (Ghazali wrote famously on this, and the Hanbali school, the descendants of the hadith scholars, were known for this view.) Wine bottles could be smashed, house parties could be crashed, and people could be flogged for illicit activities. This is the “pious zealotry” strain in Islamic political thought, which is in perpetual conflict with the “stability and social order” strain. The latter strain, in which rulers were to be endured without rebellion and the state enforced law and morality, was not in principle more tolerant of moral vice: morality could be enforced in principle, including by physical means, but there was merely a caution about who could do so and when.

Preservation of religion. This included promoting both orthodoxy and orthopraxy and is thus part of “commanding right and forbidding wrong.” The ruler was supposed to take both positive steps to make sure right religion was represented and taught in his area of rule and also negative steps to deal with heterodoxy. The muḥtasib could check on beliefs propagated in public, test religious teachers, and correct false interpretations of doctrine. When people failed to correct their views, he could turn them over to the ruler for punishment. Here, private action (self-help) also surfaced: people could report on others and scholars were known to single out people for heterodoxy and even to organize mobs. Targets included Mu‘tazilis, dualists (Manicheans), materialists, philosophers, Sufis, Shi‘is, false prophets, deviant Qur’an reciters, and blasphemers.

Fiscal services and taxation. The imam was supposed to collect only three taxes: the poll tax on non-Muslim residents (the jizya), the land tax (kharāj, ‘ushr), and the tithe (zakat, ṣadaqa). Muslim conquerors used the poll tax and land tax to deal with immovable war spoils (fay’): they left the land in the hands of the conquered subjects but extracted taxes for it, which were then distributed to the conquerors in the form of stipends. Eventually the taxes would be regarded as the collective property of all Muslims to be spent in the public interest. The imam was also entitled to a fifth (khums) of movable war spoils (ghanīma), which he was to use for the public interest, including poverty relief.

Non-Shar‘ī Duties

The imam or other rulers were also expected or entitled to use public power to protect internal security, improve infrastructure (roads, bridges, inns, walls, and mosques), promote charity and social welfare, provide public medical services, and sponsor religious education. Many of these were provided by nonruling notables and others in addition to the state. Their provision varied greatly according to time and place.