The basic articles of an Islamic Constitution

Written by Ali Unal. Posted in Islam and Social Order

 
The foremost feature of Islamic administration is twofold: All people are God's creatures and therefore no one enjoys any superiority coming from birth (race, family, and color, etc); and the government's power is neither absolute nor designed to enslave them. Rather, its main objective is to establish and promote the virtues approved of by God and to prevent and suppress vice. This is why all rulers should display righteousness and respect for God in their character, words, and actions. Government employees, judges, and military officers should imbibe this spirit and infuse it into society.

The rule of law is indispensable to an Islamic social order. The Prophet was sent with the Book (the Qur'an, the Islamic community's constitution) and the Balance (the Divine standard by which rulers must implement the Qur'an in order to rule the community according to absolute justice). No Muslim is above the law or can transgress its limits. The law is to be enforced without discrimination, and courts are to be free of outside pressure. History shows that most caliphs set the best examples by adhering to these principles. Even though they enjoyed greater power than past kings and present presidents and prime ministers, they adhered strictly to the law. Friendship and nepotism did not annul prescribed rules and regulations, and personal displeasure did not cause them to violate the legal code.

As justice and the rule of law are an Islamic constitution's foremost articles, people are to obey the government so that anarchy and social disorder can be avoided. But disobedience is allowed, for the Prophet is reported to have said: "There is no obedience in sin." This does not mean that people can revolt against the government, but that individual Muslims are responsible for their own felicity and salvation, for: God does not change the state of a people unless they change themselves (13:11). People make their own history and are responsible for their own individual and social conditions. Given this, advice and preaching should always come before revolt.

Another important article is the advisory system of government. Learned and pious people who possess sound judgment and expert knowledge, as well as enjoy the people's confidence, must be located and clarify their opinions based on the dictates of their conscience. This advisory system is so important that God praises the first, exemplary Muslim community as a community whose affair is by counsel between them (42:38).

This becomes even more explicit when we realize that this first community was led by the Prophet, who never spoke out of caprice or on his own authority, but only spoke what was revealed to him by God (53:2-3), and that God considers consultation so important that He orders His Messenger to practice it with his Companions (3:159). Even after the Muslims' reverse at the Battle of Uhud (625), due to some of the Companions' disobedience to the Prophet, God told him to engage in consultation. The Prophet and his rightly-guided successors always consulted among themselves whenever necessary. 

Consultation settles many affairs among Muslims. Judges who cannot decide cases use it to reach a verdict based on the Qur'an and the Sunna, thus making it similar to ijtihad and qiyas (analogy). Furthermore, any punishment of a secondary nature that is not explicitly mentioned in the Qur'an and the Sunna can be pronounced after consulting authoritative Muslim jurists.

Another basic principle is that the government should be formed with the people's free consent—not through the use of force—only after they have been consulted. The people should entrust power to the best candidate after consulting among themselves, for this was how each true successor to the Prophet came to power. Although this system was replaced by a sultanate after Hasan ibn 'Ali ibn Abi Talib resigned in 661, most Muslim rulers remained faithful and obeyed the Islamic constitutional system's law and dictates. When rulers deviate from the Right Path, the people or their scholarly representatives should use consultation to bring about their abdication or reform. 

The constitution also provides for the freedom of opinion. Promoting virtue and preventing vice is more than just a right for Muslims—it is their essential duty. Freedom of conscience and speech is the pivot that ensures the correct functioning of Islamic society and administration. The people are free to criticize even the most prominent Muslims when they go astray and to speak their minds on all matters.

The final article of an Islamic constitution to be discussed here is the public treasury, which is God's property and a trust. Everything should be received through lawful sources and spent only for lawful purposes. Rulers have no more control of the public treasury than trustees have over the property of minor orphans in their custody: If he is rich, let him abstain altogether; if poor, let him consume it reasonably (4:6). Rulers must account for the public treasury's income and expenditure, and Muslims have the right to demand a full account of these.

(*) Laura Vaglieri, Apologia dell Islamismo, 33-34.

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