Islamic Civilisation — 29 July 2011
The Caliphate as the Rule of Law

A famous German legal philosopher Gustav Radbruch (d.1949) pointed out that the law has 3 mutually contradicting elements, Gleichheit (justice), Zweckmäßigkeit (purposiveness or effectiveness) and Rechtssicherheit (legal certainty), but the most fundamental is the legal certainty. The legal certainty means stability and predictability. The law should be unchanging and continuous to some ranges of time as well as understandable and well known to people.

As for the stability, the Islamic law system started to be formed around in 8-9 century and had been established around the 12-13 century and has little change since then. It remains unchanging and valid, thus it is still taught from the elementary school to the graduate school of the university in the Muslim world.

Citing Justice without Frontiers, by Weeramantry, C, (Martinus Nijhoff Publishers, 1997, p.132), the supremacy of law was developed by Islamic jurists before the twelfth century, so that no official, even Khalifah, could claim to be above the law.

Comparing to Islamic law, only Common Law of England has some limited stability, but “the rule of law” had been established only in the late 17th century due to the efforts of Lord Chief Justice Edward Coke (d.1634) and the like, and it had never ceased to be transformed until courts of law and equity were combined in 1873 and 1875 and the current features of the common law had been completed.

Even this English Common Law is said to be influenced by Islamic Law through Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily since the publication of legal scholar John Makdisi’s “The Islamic Origins of the Common Law” in the North Carolina Law Review, (Makdisi, John A., 1999, North Carolina Law Review 77 (5): 1635–1739.)

Criticizing John Austin’s (d.1859), a famous British legal positivist jurist, theory that law is the command of the sovereign backed by the threat of punishment, H. L. A. Hart (d.1992), one of the most influential legal philosophers of the 20th century, pointed out in his famous The Concept of Law that the ad hoc orders of the rulers cannot be called law. Such things like 12,000 yen flat-rate benefits enacted in 2008 under Aso Cabinet in Japan, 200 million dollar of bailout for AIG(American International Group), and imposing 90% tax on bonus for its executives, both of which were legislated under Obama government in 2009, do not deserve the name of law. Even if they were legislated by parliaments or Congress under the name of law, they are in reality nothing other than arbitrary ad hoc commandments of “men”. Nowadays there is no country where the true “rule of law” exists, even though there might be a Rechtsstaat which rules “by law”.

Here it is worth mentioning that in Islam even the taxation is under “the rule of law”, not “the rule of man”, contrary to the West in which the taxation is under “the rule of man” justified by the slogan “No taxation without representation”, hence “the representatives” can impose taxes as they like under the name of “people”. On the other hand, Islam does not approve of any tax except what is legislated by Shari‘ah, Islamic Law, i.e., Zakah for Muslims, Jizyah for Non-Muslims, and Kharaj for the utility of the lands conquered. Any other taxes imposed by human beings are strictly prohibited. A great Hanbalite jurist Ibn Taimiyyah(d.1328) says; ‘Levying taxes are what is not permitted by the agreement of legal schools’.(Ibn Taimiyyah, Majmu‘ah al-Fatawa, al-Mansurah, 2001, vol.28, p.155) Another great jurist of the Hanafi legal school, al-Jassas (d.981) is so severe that he says that every Muslim should fight against those who levy taxes(Al-Jasas, Akam al-Qur‘an, 1986, Beirut, vol.1, p.472), and he should even kill them if they are armed.

Consequently, no tariff is allowed in Dar al-Islam, in which the rule of law is prevalent, because Dar al-Islam is a unified law-governed space, thus it is not permitted to make borders in it to prevent the free movement of people, commodities, and money or capitals by imposing man-made tariffs or any other kind of taxes or fees.

Contrary to “democracy”, in Islam the economy including taxation and currency is under the rule of law, not the rule of man, so abrogation of borders and tariffs inside Dar al-Islam and monetary system of Gold Dinar and Silver Dirham, as clause 130 of Al-Majallah, a civil code of the Ottoman Khilafah, prescribes that “the Nuqud (species) are gold and silver”, is an important and integral part of Khilafah or the Rule of Law. Thus the “the Islamic Golden Age” was created by the Muslims’ vigorous monetary economy with the expanding levels of circulation of a stable high-value currency (the Dinar) and the integration of monetary areas that were previously independent.

As for the legal certainty as the predictability, Muslims are familiar with Islamic law, both substantial rules, Ahkam Taklifiyyah, and legal concepts, Ahkam Wad’iyyah, because the learning of Islamic law is obligatory on every Muslim. So it is not unusual that ordinary Muslim children learn classical texts books of Islamic law even in elementary school or junior high school.

Comparing to Islam, in Japan, for example, the jurisprudence is not included in curriculum of compulsory education, i.e., elementary school and junior high school at all. Only small parts of the constitution is taught in junior high school as a part of the subject “The Contemporary Society”, and even the penalty of murder of penal law is not taught. There is no rule of law in Japan, where the basics of the law and jurisprudence are not taught to its citizens but they are ordered to be a lay judge to judge others.

Khilafah is the very Rule of Law, the most stable and certain divine law in the world, which liberates all the human beings from the rule of men and guarantees the security of life, property, and honor for all the inhabitants, and this law-governed space is called Dar al-Islam or “House of Islam”, in which Khalifah the head of the Ummah, rules according to Islamic law and plural religious communities coexist enjoying religious self-government. The fact that Khalifah should be single symbolizes the unity of “Dar al-Islam” to guarantee the freedom of movement of human beings, commodities, money or capitals, and information. So the abolishment of borders which hinder the movement of the people is the indispensable essential part of Islamic order. And the outside of this law-governed space, Dar al-Islam, is called Dar al-Harb, literally “House of War”, or “Lawless Land”.

The pivot of Khilafah is the law, Shari‘ah, not the person of Khalifah himself. We find the clearest expression of it in the works of Ibn Taimiyyah. In his book on Islamic politics, al-Siyasah al-Shar‘iyyah, he not only ignored the role of Khalifah but never mentioned about the Khilafah at all. And in his treatise on the revolt, he affirmed that the true revolt which should be subdued as the apostasy is the violation of Law, Khuruj ‘an Shari‘ah, not the revolt against the ruler, Khalifah. (Ibn Taymiyyah, Majmu‘ah al-Fatawa, vol.28, pp.468-469, pp.502-504, pp.520-521)

But the Western scholarship obsessed with the Aristotelian tradition of typology of ruler can neither understand the real nature of Khilafah nor assess its significance correctly; hence they tend to regard it as the monarchy or dictatorship focusing only on the number of the ruler, if it is one, monarchy, if minority, aristocracy, and if majority, democracy.

Without exception in human history, the head of state must be one and alone by whatever name the regime is called, democracy, monarchy, republic, or Papacy, in terms of official institution and constitution, and sociologically speaking, no head of state can rule by him(or her)self alone without anyone elses support at all. The Khilafah is, of course, not an exception to this either.

 

Dr. Hassan Ko Nakata is former Professor of Theology at Doshisha University, Kyoto, Japan. He is the author of several books and articles in English, Arabic and Japanese.

The views expressed in this article are the author’s own and do not necessarily reflect New Civilisation’s editorial policy.

This article was originally published as part of the study “The Deconstruction of the Sunnite Theory of Khilafah – Spreading the Rule of Law on Earth”

 

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(2) Readers Comments

  1. assalamu alaikum brother.. I’m a great fan of your articles and writings. Amazing explanation and analysis. Jazakallah! Please keep sharing this light with us.

  2. Pingback: ARAB SPRING-West Hopes for Western Style Democracy – Investigating Philosophies, Culture, History, Myths

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