The Princeton Encyclopedia of Islamic Political Thought

theocracy

Theocracy (divine rule, from Greek θεός/theós [God] and κρατεi/kratia [rule]) is a system of government in which religious and political authority are merged and which is ruled according to religious laws. The fact that the corresponding Arabic term ḥukūma dīniyya denotes “religious government” rather than “divine rule” reveals the limited applicability of notions of theocracy in various traditions of Islamic thought.

A defining opposition with reference to theocracy is that between imamate and kingship, between rule according to the limits laid down by God and one indifferent to any such limits. The following saying, addressed to the second caliph, ‘Umar b. al-Khattab (d. 644), reveals this opposition: “A caliph only takes what is due and spends it where it is meant to be spent, whereas a king oppresses people by arbitrarily taking from some and giving to others.” It is with reference to this understanding of just rule, based on sacred law, that invocations of the right of disobedience in early Islam may be understood. Religious law was seen as a check on political power. For instance, certain strands of Mu‘tazili thought allowed for the right to disobey the ruler and to depose him when he broke the law. The Kharijis, like some Mu‘tazilis, even preferred a non-Arab caliph on the grounds that, lacking strong tribal ties, he would be easier to depose than an Arab.

Religion as State Law in Islamic Political Thought

As a system of rule, theocracy requires some basic rules of government. Constitutional law, however, emanates neither historically nor conceptually from the schools of law (madhhab, pl. madhāhib) that emerged in the ninth century. Muslim scholars therefore have developed a variety of methodologies that derive from traditional Islamic roots for a basic law of the state. The Charter of Medina (ca. 624) is often portrayed as the first Islamic constitution. Shi‘is also regard the rulings of the first Shi‘i imam, ‘Ali b. Abi Talib (d. 661), as important principles of rule. However, neither the Charter of Medina nor the principles of rule that ‘Ali stipulated in his writings present blueprints for a theocracy.

In what is regarded as the classic Sunni treatment of the subject, the Shafi‘i jurist Mawardi (d. 1058) in his treatise al-Ahkam al-Sultaniyya (The ordinances of government) postulates sovereignty on the basis of the Qur’an and the sunna. In this model of government, which Mawardi developed to justify and support Abbasid rule in the context of contending claims to rule by warlords in Egypt and Iraq, the caliph is installed by investiture (bay‘a). He thereby relies on collective and formal acknowledgment on the part of the ‘ulama’ as well as the ahl al-ḥall wa-l-‘aqd (those who loosen and bind). Here, too, the caliph must govern in the framework of, and with guidance from, religious law.

Whither Theocracy: The Empirical Relationship between State and Religion

Commonly held views about the unity of state and religion in Islam (al-islām dīn wa-dawla) are contested by scholars and must be qualified historically as the exception rather than the rule. Some date the separation of religion and state to the emergence of the class of ‘ulama’ from the ninth century onward. Possessing semiautonomous sources of financial and social support frequently allowed the ‘ulama’ to maintain a degree of independence from the caliph. Others date the separation of state and religion to the time of the Buyid intervention in Baghdad in 945 that terminated the Abbasid caliph’s dual role as the temporal and spiritual leader of the umma (community of believers).

The bifurcation of the legal system into shari‘a and maẓālim courts (dīwān al-maẓālim, board of grievances) in early Abbasid times can be seen as solidifying separate realms of religion and state, as it created a separation of “religious” and nonreligious courts, implicitly acknowledged a source of law outside of the Qur’an and the sunna, and stipulated a limited application of religious law. The very concept of siyāsa (politics, government) indicates a realm of administration and generation of rules in areas where no jurisprudence could be derived from the Qur’an and the sunna.

Characteristically, in the Ottoman Empire, sultans made ordinances that were complements to shari‘a regulations but were not equal and not superior to shari‘a. As a political ethics, shari‘a functioned here too as a limit on executive rule rather than as a constituent to theocratic government.

Theocracy and the Modern State

Departing from the tradition of shari‘a as a political ethics limiting executive rule, the 20th century saw the rise of juristic theories of theocracy as a state based on Islamic law. Due to the absence of Islamic constitutional thought, such juristic theories of theocracy, proposed by Islamist thinkers from Sayyid Qutb to Hasan al-Banna and from Mawdudi to Ayatollah Khomeini, have all reverted to civil law types of legal systems in order to envision their Islamic states.

Even though ten Muslim-majority countries designated themselves “Islamic states” in 2010 (Afghanistan, Bahrain, Brunei, Iran, Maldives, Mauritania, Pakistan, Qatar, Saudi Arabia, and Yemen—comprising about 28 percent of the populations living in Muslim-majority states), strictly speaking none can be characterized as a theocracy, in that religious and political authority is not congruent (e.g., Saudi Arabia) or constitutional and republican elements limit religiopolitical authority (e.g., Iran). Indeed, the public law of the ten Islamic states incorporates numerous elements not specifically drawn from Islamic legal traditions. Dutch scholar Johannes Jansen consequently argues that it is not the reinterpretation of the Qur’an and the sunna that lies at the basis of theocratic formulations but the assumption that the Qur’an and the sunna have little to offer by way of constitutional law. Malcolm Kerr speaks here of the “empty spaces” in the sources, Konrad Dilger of the “silence of the legislator.”

The public law of today’s so-called Islamic states takes various forms. Saudi Arabia, which declares the Qur’an to be the country’s constitution, has since 1992 adopted a Basic Regulation, placing quasiconstitutional limits on political authority. Political authority is primarily exercised by the king and the royal family, although the ‘ulama’ exercise legal authority by issuing fatwas on social and political matters and, following a strict Hanbali/Wahhabi tradition, by controlling shari‘a courts.

The 1956 Constitution of Pakistan stipulated that no law shall be enacted that is repugnant to the injunctions of Islam as laid down in the Qur’an and the sunna. When a law was in conformity with the Qur’an and the sunna, the constitution allocated the decision-making power not to a council of religious scholars but to the National Assembly. The legal system was further Islamized when in 1980 military ruler Zia-ul-Haq decreed an Islamic legal code to be applied through shari‘a courts. In 1991, the competitively elected National Assembly continued the Islamization process when passing a shari‘a bill introduced by Nawaz Sharif’s government.

A further case of a self-proclaimed Islamic state with yet another public law framework emerged in the late years of Ja‘far Nimeiri’s regime (1969–85) in Sudan, in alliance with the Sudanese Muslim Brothers led by Hasan al-Turabi. Passed as part of the emergency law of 1984, an Islamization project of the legal system was embarked upon that kept the existing public law framework largely intact and concentrated on Islamizing the criminal justice system by forming Islamic courts and applying ḥudūd punishments.

The 1979 Iranian Constitution provided perhaps the most ambitious project by creating a novel public law framework for an Islamic state by combining Shi‘i concepts of government with republican traditions. Based on the Constitution of the French Fifth Republic (1958), the 1979 Iranian Constitution provides for a number of directly elected republican institutions, such as the presidency and the parliament, as well as the possibility of referenda as direct expressions of public will. Simultaneously, it also recognizes that the supreme leader (rahbar) has oversight over the three branches of power, requires of legislation to be “consistent with Islamic law” probed by a council of clerical and civil jurists (the “Guardian Council”), and recognizes divine sovereignty. As Asghar Schirazi, among others, has shown, the notion of the guardianship of the jurist (wilāyat al-faqīh) applied in the 1979 constitution constituted a radical reinterpretation of the conventional meaning of wilāya and thus a jurisprudential revolution in itself. Whereas in Ja‘fari jurisprudence, wilāya had referred to the legal authority by the ‘ulama’ to act for orphans, the insane, and minor women who had no legal guardian, in the 1979 constitution this notion was expanded from the private to the public realm and narrowed from the collectivity of the ‘ulama’ to an individual: a high-ranking faqīh. This high-ranking faqīh would guard over and conciliate between the branches of power, command the army, and appoint the chief of the judiciary, among other matters. While the original constitution did not foresee a mechanism for constitutional reform, the amended constitution of 1989 invested the supreme leader with the initiating and certifying power of every constitutional amendment process and every referendum.

Beside the ten states designating themselves Islamic states, an additional 12 have chosen to declare Islam the official state religion, encompassing 30 percent of the population living in Muslim-majority states. Among these, the consequences for the status of religious law in the legal system vary from case to case. In some, it is limited to private law, and in particular family law, such as in Jordan and Malaysia. In other cases, the jurisdiction on the basis of religious law is broader, as in Yemen, where article 46 of the constitution provides judges with discretionary powers to interpret shari‘a and apply punishments that may not necessarily be proscribed by positive law. Further, which institution is mandated to interpret the meaning and scope of religious law differs. In Egypt the role of interpreting the meaning of “shari‘a” has fallen to the Supreme Constitutional Court, a body made up of judges typically not trained in Islamic law. In Pakistan the constitution specifically assigns this role to the Federal Shariat Court.

The juristic theory of shari‘a poses fundamental challenges to legal reform and the accommodation of changing norms in jurisprudence. In Sunni-majority countries as well as in the Islamic Republic of Iran after 1988, the reform of codified Islamic law therefore often has been justified with reference to “public interest” (maṣlaḥa ‘āmma). As a principle or method of law, maṣlaḥa derives its validity from the idea that the fundamental purpose of legislation is to secure the common good. In the classical view, maṣlaḥa applies only when the shari‘a is silent on a given issue or when it can be proven that exigency requires the temporary suspension of certain legal practices prescribed by shari‘a. For the doctrine of maṣlaḥa to be valid, the necessity should be reasonably certain; it should benefit the public at large, not only a certain segment of the population; it should not conflict with explicit or implicit Islamic ordinances; it should be rational and acceptable to people of sound intellect; and it should relieve or prevent hardship for the people. Expounding a different view, Khomeini, as the supreme leader of the Islamic Republic of Iran, decided in 1988 that the doctrine of maṣlaḥa permitted the temporary suspension of the primary rulings of Islam in emergencies or conditions of overriding necessity. He thereby empowered his own office to unilaterally revoke Islamic law where it was perceived to be contrary to public interest. To determine public interest, Khomeini created the Expediency Discernment Council in 1988, which was written into the 1989 amendments to the constitution. This novel adoption of maṣlaḥa, hitherto rejected in Shi‘i thought, as a legal principle justifying both the reform of the fundamental laws of the state and the suspension of legal practices prescribed by shari‘a can be interpreted as the attempted prioritization in legislation of pragmatism over dogma, while still remaining, at least formally, in the juridical framework of an Islamic state.