Mohammad H. Fadel is Associate Professor at the Faculty of Law at the University of Toronto, which he joined in January 2006. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago. Professor Fadel has published numerous articles in Islamic legal history and Islam and liberalism, including “Back to the Future: The paradoxical Revival of Aspirations for an Islamic State,” 14(1) Review of Constitutional Studies (2009)” and “Islamic Politics and Secular Politics: Can They Co-Exist?”, 25(1) Journal of Law & Religion (2009). For a full list of articles see: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/mohammad-fadel.
Can a people, after having duly consented to the formation of its government, remove that government using procedures not authorized by law? To put the question differently: can the formal legitimacy that a people provides a government preclude that people from exercising its sovereign power to strip those holding formal legitimacy of power, even though those in power have not violated the express terms of their compact with the people? These are the paradoxical questions that are at the heart of the political crisis in Egypt where duly elected president, exercising powers pursuant to a duly enacted constitution, was overthrown by the “people” who acted outside the formal rules “the people” had enacted for removing or otherwise disciplining its president.
This paradox is ultimately rooted in the problem of constitutent power: what does it mean to say the people constitute the polity when the polity itself defines the people? Martin Loughlin, in a provocative essay on constituent power, argues against two common modes of understanding constituent power and its relationship to constitutional law. The first is “normativism,” which, he argues, reduces constituent power to “the autonomy of legal ordering,” and thus renders constituent power redundant. The second, decisionism, reduces the constitutional order to the sovereign’s will, and erroneously renders legal normativity redundant. Loughlin posits instead what he calls “relationalism”: constituent power is a synthesis of will and legal normativism. In his words, “For relationalists, the concept [of constituent power] expresses a relationship of right: it is the manifestation of political right (droit politique or jus politicum), expressing the open, provisional, and dynamic dimensions to constitutional ordering.” Constitutional ordering is always “open, provisional and dynamic” because the sovereign is not embodied in the person of a divinely-appointed monarch, for example, but is an idea, i.e., “the people.” Accordingly, the sovereign can only be manifested by persons who claim to act on its behalf. Implicit in the relational understanding of constituent power is that legitimacy can only be fully achieved, if ever, at some indeterminate time in the future. The legitimacy of the sovereign’s representative, moreover, is always subject to contestation. Constitutional ordering therefore always contains within it the potential for revolutionary action: whenever it can be claimed that the people’s formal representatives have betrayed their imagined principal, the “people” can act to overthrow that representative and establish a new constitutional order.
Loughlin’s relational conception of constituent power sheds important light on the political writings of Sunnī jurists and theologians, assisting us to understand the seemingly paradoxical categories of the legitimate ruler (the caliph or more generically, al-ḥākim al-sharʿī) and the “legitimate” usurper (al-mutaghallib). Sunnī political thought can be easily mapped onto his categories of “normativism” and “decisionism.” Sunnī theories seem to posit the existence of either a legitimate caliph, to whom obedience is owed precisely because his rule is in accordance, both procedurally and substantively, with the normative requirements of the law, or a victorious usurper (mutaghallib) who, despite his formal illegitimacy, nevertheless must be obeyed by virtue of his effective power in order to minimize civil strife (fitna). Western authors have generally been critical of Sunnī political thought, accusing it, in the first instance, of affirming a utopian conception of politics which, by virtue of its impracticability,[1] devolved into little more than “might equals right.”[2] To put it in Loughlin’s terms, Islamic political thought began with a commitment to “normativism” and ended up in pure “decisionism.”
Loughlin’s relational conception of constituent power, however, helps us to transcend the binary of legitimate versus usurper that has limited our ability to read Sunnī political thought more productively. A more careful reading of Sunnī writings discloses that it is neither purely normativist nor decisionist, but rather it creates a dialectic between the normative demands of law and the will of the sovereign – the Muslim community as manifested through the actions of its agents (rulers). The dialectic between law and will is a product of the bedrock political principle of Sunnī political theology: that the political order is a manifestation of the deliberate choice (ikhtiyār) of the community, rather than the manifestation of divine fiat (naṣṣ) as posited by Shīʿa Islam.
While Sunnī theorists and jurists analogized the process of state formation to a contract, and conceived of public officials, including the caliph himself, as the agent of the Muslim community, the contract of the caliphate (ʿaqd al-khilāfa), unlike other contracts known to the law, was mandatory (wājib): the community had no choice but to organize itself into a political community. While formation of the state is a matter of choice, Muslims are not free to refuse politics. The 11th century Shāfiʿī jurist, al-Māwardī, tells us that upon conclusion of this contract, among other things, individuals are divested of any power to pursue public claims, and are under an obligation to defend the legitimate ruler should he be challenged. A person who did not recognize the contract became a rebel (bāghī) who could be justly compelled through force of arms to obey the authority of the political community. [3] Indeed, one can say that this was precisely the understanding of the state that motivated the first caliph, Abū Bakr, to wage war against those Arabian tribes who remained Muslim following the Prophet Muḥammad’s death, but refused to submit to his political authority.[4] One might conclude, contrary to the claim that Islamic political thought was hopelessly utopian, that it was quite focused on generating normative grounds which would justify political violence.[5]
Two features of the contract of the caliphate as outlined in Sunnī political thought deserve highlighting. The first is that a successful candidate is supposed to embody a combination of antecedent qualities that can be objectively ascertained at the time he is elected, e.g., descent, maleness, integrity, and learning, and manifest other, functional qualifications, e.g., political sagacity, effective administration, and military prowess, that can only be demonstrated by performance of the powers given to the candidate after he is recognized as the legitimate ruler. This functional aspect of the contract of the caliphate is a logical entailment of the representational aspect of the caliphate: the caliph represents the Muslim community, and as their representative, acts for their rational good. It also creates a paradox: the contract is said to create a duty of obedience to the ruler and the regime that he establishes, but in an important sense, his claim to legitimacy is not complete until he can fulfill, in the future, the functional demands of state.
The second crucial feature is the inherent indeterminacy by which even the best-qualified candidate becomes a successful candidate. The Ashʿarī-Shāfiʿī tradition offered numerous answers to this question, without providing a principled resolution to the problem. The 12th century theologian Abū Ḥāmid al-Ghazālī (d. 1111) came down strongly in favor of a purely functional approach: a candidate becomes the caliph when, by virtue of the support of some or all electors, he enjoys enough effective social and moral power to discharge the tasks of the government.[6] His answer to this problem itself is indicative of a relational understanding of constituent power: while the consent of the community is crucial, it is not the consent of anyone who counts – what is required is the consent of what amounts to a social coalition with enough effective power to discharge the functions of government. The difficulty of assembling an effective governing coalition means that state formation is always a dangerous activity, one fraught with risk, the potential for violence and the possibility that things might go terribly awry.
This possibility is front and center of the analysis provided by the traditionalist Ḥanbalī theologian and jurist, Abū Yaʿlā al-Farrāʾ. Al-Farrāʾ, a contemporary of al-Māwardī, propounds an elective procedure for the caliphate that is ultimately just as unrealistic as that of the Ashʿarī-Shāfiīʿīs, but in the opposite direction. For him, the caliphate can be legitimately established by free election, but only if a candidate enjoyed the support of the great mass (jumhūr) of the electors. In the absence of a candidate with universal (or nearly universal) support, the only means available to establish the state is through force (qahr).
Al-Farrāʾ, however, agrees with the Ashʿarī-Shāfʿī tradition insofar as both understand the caliph and, by extension, secondary public officials appointed by the caliph, as ideal public agents. The commitment of the Sunnī tradition to this representative ideal, when combined with the legitimate violence which the contract of the caliphate authorizes against the recalcitrant, provides another avenue to understand the position of the usurper (al-mutaghallib) in Sunnī constitutional thought.
Al-Māwardī, although he did not recognize force as a means to establish the caliphate, recognized the possibility that a rebel could seize power over a province and assert de facto control over it. De facto rule, which he called “governorship by conquest (wilāyat al-istīlāʾ),” had the potential to become a legal jurisdiction if the usurper recognized the authority of the caliph through an act of post hoc validation (taṣḥīḥ). By formally recognizing the authority of the caliph, the rebel/usurper becomes transformed, by operation of law, into a legitimate governor. The justification al-Māwardī gives for this seemingly magical transformation itself rests on the notion of representation: because public offices exist to further the well-being of the community, the fact that the usurper has agreed to recognize the legitimacy of the public order and to insure that the standards of legality are upheld, it would contravene the public good to continue to treat him as a rebel.
For Gibb, al-Māwardī’s willingness to validate post hoc the rule of the usurper, represented a dangerous deviation from the norm of legality and a dangerous step toward a position of “might equals right.” Using language that bordered on the hysterical, he accused Sunnī jurists of abandoning “the Law in favor of a secular absolutism.”[7] His interpretation of these developments, however, only makes sense if Islamic political thought is either normativist or decisionist. The relational conception of constituent power, however, offers a more plausible interpretation of the Sunnī figure of the usurper: for al-Māwardī and the Sunnī jurists who come after him, the usurper does not obtain legitimacy by virtue of conquest; rather, he obtains legitimacy by living up to the norm of the ideal public agent. For that reason, Sunnī jurists, even though they were prepared to recognize, post hoc, the legitimacy of the usurper’s jurisdiction, continued to insist on judging the legitimacy of his subsequent acts in light of the objective norms of the law, a position implicit in al-Māwardī’s insistence that the usurper, in order to obtain a legally valid office, must recognize the legitimacy of the existing public order, including its legal norms.
The qualified recognition of the usurper in Islamic political thought is not, therefore, or need not be, an unqualified endorsement of decisionism. It is better understood as a recognition of the incompleteness of formal legitimacy, and that legitimacy is a product of both fidelity to pre-existing legal norms and exercise of power in a fashion that is capable of achieving the political community’s rational good.
This analysis of Islamic political though casts some light on the problems of the Arab spring and the debates about whether the events of June 30, 2013 were a legitimate expression of the public will or a military coup: elections can produce a kind of prima facie claim to legitimacy – akin to the idea of the election of the caliphate – but if the electoral coalition is not sufficiently strong to create an effective public order, there is always the risk of a new revolution. From this perspective, June 30 was clearly a revolution. But constituent power is not only about the right to engage in revolution. It also requires establishing a new juridical and political order that can produce formal legitimacy. Two and a half years after Tunisia and Egypt both overthrew their dictators, it continues to be a matter of doubt whether the outlines of a new conception of political right have come any closer to realization, and thus the shores of a new formal regime of constitutional legitimacy still seem to lie beyond the horizon. In such circumstances Islamic political thought also teaches that continuous revolutions, while legitimate insofar as the people can never be divested of its constituent power, may not be wise, insofar as they are unlikely to lead to the formation of an effective governing coalition that can produce a new conception of political rightcapable achieving social justice, freedom and dignity, the ostensible goals of the Arab revolutions of 2011.
[1] Noel J. Coulson, “Doctrine and Practice in Islamic Law,” 18(2) Bulletin of the School of Oriental and African Studies (1956), p. 223.
[2] See, for example, Gibb, H.A.R. Gibb, “Constitutional Organization,” in Law in the Middle East, ed.M. Khadduri and H. Liebesny, p. 19, 23 (1955); and, Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muḥammad ʻAbduh and Rashīd Riḍā (Berkeley and Los Angeles: University of California Press, 1966) p. 51. The late 19th century and early 20th century Muslim reformer, Rashīd Riḍā preceded western critics of Sunnī political thought, accusing traditionalist jurists of facilitating despotism in Islamic lands through their doctrines tolerating the usurper. Muḥammad Rashīd Riḍā, al-Khilāfa (Cairo: al-Zahrāʼ li-l-Iʻlām al-ʻArabī, 1988), pp. 51-55.
[3] Significantly, rebels could also use limited violence against government forces without being subjected to ordinary tort remedies. For a general introduction to the rules governing rebellions in Islamic law, see Khaled Abou el Fadl, Rebellion and Violence in Islamic Law (New York: Cambridge University Press, 2001).
[4] These early wars are known as “the apostasy wars (ḥurūb al-ridda).” Most tribes, however, were rebellious and had not in fact rejected Islam in any kind of theological sense (with the important exception of the Banū Ḥanīfa, who recognized a self-declared prophet from their tribe that Muslim tradition came to call Musaylima al-Kadhdhāb, Musaylima the Liar). Later Muslim jurists came to distinguish between those tribes who simply refused to recognize the political authority of Abū Bakr and those who renounced Islamic religious teachings in favor of the teachings of other prophets.
[5] Likewise, the caliph, once he appointed a successor, could not dismiss him without cause and appoint another.
[6] Abū Ḥāmid al-Ghazālī, Faḍāʾiḥ al-Bāṭiniyya (Cairo: al-Dār al-Qawmiyya li-l’ṭibāʿa wa’l-nashr, 1964).
[7] Gibb, p. 23.
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