The Princeton Encyclopedia of Islamic Political Thought

contracts

‘Aqd, conventionally understood as “contract,” may be more precisely understood as the confirmation of an obligation or undertaking (Lisan al-‘Arab, Ibn Manzur). The Qur’an refers to ‘aqd in numerous verses (e.g., see 5:1, al-Ma’ida), as well as the closely related term, ‘ahd (e.g., see 23:8, al-Mu’minun). The Qur’an describes faithfulness to such undertakings as a fundamental attribute of believers. Although it is generically used in Islamic jurisprudence to refer to all sorts of contracts, here we are specifically concerned with its usage in Islamic political thought. Not only is the concept of a contract foundational to the idea of the caliphate, but it is equally constitutive of other political offices within Islamic constitutional law. It also represents the basic framework by which Muslim jurists understand international law.

The contract of the imamate (unlike other generic contracts in Islamic law such as that of a sale or marriage, for example) is obligatory according to the vast majority of premodern Sunni authorities. Muslim theologians have disputed whether the obligatory character of the imamate is a rational obligation or one derived from revelation. Mawardi (d. 1058), a prominent Shafi‘i jurist and author of al-Ahkam al-Sultaniyya (The ordinances of government), reports both positions, and the prominent jurist, theologian, and mystic, Ghazali (d. 1111), even as he claims a revelatory source—consensus—as the origin of the obligation, nevertheless grounds that consensus in practical reason: human life, including religion, cannot flourish in the absence of a state (al-Iqtisad fi al-I‘tiqad). Accordingly, despite the religious connotations of the imamate, the institution in the writings of the jurists takes on a largely functional character intended to further the secular welfare of the community. This functional character is reflected clearly (1) in the statement of the jurists that the caliphate, as an institution, involves the claims of man as well as the claims of God and (2) by the representational character of the caliphate.

Like any other contract, the contract of the caliphate involves two parties. On one side is the community of Muslims (al-muslimīn or ‘āmmat al-muslimīn), represented by a group of electors (“those who loosen and bind,” ahl al-ḥall wa-l-‘aqd), and on the other is the candidate(s). The electors are to select the fittest candidate as imam or caliph, considering both the legal requirements for the office and the wishes of the community. They then offer the office to the successful candidate who only becomes caliph upon his acceptance of the offer. Alternatively, the sitting caliph can designate a successor via the device of ‘ahd. This power is consistent with the representative character of the contract insofar as Islamic law treats the caliph, when appointing a successor, as one acting on behalf of the community, not for himself. Accordingly, although the caliph has the power to appoint a successor, he lacks the power to dismiss him without cause. Offices of the caliphate can be divided into those that are deemed to be mere delegates of the ruler, such as viziers—in which case their jurisdiction terminates upon the death or dismissal of the ruler—or offices whose incumbents enjoin tenure independent of the will of the ruler and can only be dismissed for legal cause, such as local rulers (umarā’), if they had been appointed by the caliph.

Just as the relationship between the Muslim community and its ruler is specified by the terms of a ruler’s contract, so too is the relationship between the ruler and the other offices of the caliphate determined by a contract of appointment (‘aqd al-tawliya, ‘aqd al-taqlīd). The contract of appointment would specify the extent of the office holder’s powers and the jurisdiction over which the office holder could exercise that power.

The Islamic state’s relationship with non-Muslims was also structured contractually. A non-Muslim could reside temporarily in an Islamic state pursuant to a temporary grant of security (amān or ‘ahd), or permanently pursuant to a grant of permanent protection (dhimma). The chief difference between the two was in the depth of solidarity created between the non-Muslim and the Islamic state as a result of the particular relationship. Because of the temporary nature of the residence of a non-Muslim in Islamic territory pursuant to an amān or an ‘ahd, he was not under an obligation to pay the jizya tax, a per capita levy payable by a non-Muslim permanently residing in Islamic territory. Conversely, the non-Muslim who was a permanent resident in an Islamic state was obliged to pay this tax as part of the relationship of permanent protection. In exchange, however, the Islamic state was obliged to afford him military protection against all aggressors, whereas it was obliged with respect to those non-Muslims only temporarily living in Islamic territory to protect them against aggression from Muslims. Likewise, a non-Muslim permanent resident of an Islamic state had a greater obligation to obey the substantive rules of Islamic law than did a non-Muslim only temporarily residing in the territory of an Islamic state. Although the contractual relationship between Muslims and non-Muslims permanently residing in an Islamic state is not described as involving claims of God, nevertheless the contract of dhimma must include certain mandatory provisions. Accordingly, a contract of dhimma, from the perspective of Islamic law, includes mandatory provisions as well as permissive provisions that are subject to negotiation between the Islamic state and the non-Muslim. A breach of one or more of the mandatory provisions of the contract of dhimma by a dhimmī constitutes a repudiation of the contract of protection. Mandatory provisions of the contract of dhimma include, for example, prohibitions against cursing the Prophet Muhammad, disparaging Islam, or fornicating with a Muslim woman. An example of a permissive provision would be the rule requiring non-Muslims to wear distinctive dress. Because such a term is not mandatory, as a matter of legal theory not all contracts of dhimma need include it.

Finally, the relationship of Muslims to non-Islamic states was also deemed to be contractual via the device of the amān. The question of the permissibility for a Muslim to take up permanent residence in a non-Islamic state was often considered in light of the terms of the amān that were being offered to the Muslim. If, for example, he would be permitted to manifest his religion freely, there would be a greater chance that Muslim jurists would deem such residence to be permissible.

Despite the ambiguities inherent in the notion of the manifestation of religion, the general rule was that Muslims are bound by their obligations and that if a Muslim wished to renounce protection granted to him by a non-Muslim power or its agent, he had to renounce it openly. Likewise, if a non-Muslim, whether temporarily or permanently in an Islamic state, repudiated his contract, he was not to be killed or fought merely for that repudiation; rather, he was to be deported safely to the frontier. Non-Muslims resident in the Islamic state could be killed or fought on the territory of the Islamic state only if they aided non-Muslim invaders in making war on the Muslims.