[Islam-Online- Islamic]

Classical Theories of Islamic Government
According to al Mawardi, the caliphate was established in order to continue the work of the Prophet in his capacity as defender of Islam and in worldly governance.10 Furthermore, it is obligatory upon the community that someone be placed in the position of caliph. He says that scholarly opinion is divided as to whether that obligation is based on reason or revelation. Reason tells us that
it is in the nature of reasonable men to submit to a leader who will prevent them from injuring one another and who will settle quarrels and disputes, for without rulers men would live in anarchy and heedlessness like benighted savages.
Revelation tells us, as noted above, that we must "obey God, the Messenger, and those in authority among you" (Qur'an 4:62). Furthermore, there is a hadith report that the Prophet said:
Other rulers after me will rule over you, the pious according to his piety, the wicked according to his wickedness. Hear them and obey in all that accords with the truth. If they do good, it will count for you and for them. If they do evil, it will count for you and against them.
Either way-whether on the basis of common sense or revelation-there must be a caliph, says al Mawardi. In the absence of a caliph, the community must produce a group of candidates eligible for the position and a group of electors to choose from among the candidates. The latter must be of honorable character; able to practice ijtihad; have sound hearing, vision, and speech; be "sound of limb"; have sound judgment; be courageous and vigorous; and be (male) members of the Quraysh tribe (the tribe of the Prophet). The electors must have integrity, enough intelligence to recognize the candidates' qualifications, and the ability to choose wisely.
In al Mawardi's words, the duties of the caliph are as follows:

To maintain the religion according to established principles and the consensus of the first generation of Muslims. If an innovator appears or if some dubious person deviates from it, the [caliph] must clarify the proofs of religion to him, expound that which is correct, and apply to him the proper rules and penalties so that religion may be protected from injury and the community safeguarded from error.
To execute judgments given between litigants and to settle disputes between contestants so that justice may prevail and so that none commit or suffer injustice.
To defend the lands of Islam and to protect them from intrusion so that people may earn their livelihood and travel at will without danger to life or property.
To enforce the legal penalties for the protection of God's commandments from violation and for the preservation of the rights of his servants from injury or destruction.
To maintain the frontier fortresses with adequate supplies and effective force for their defense so that the enemy may not take them by surprise, commit profanation there, or shed blood, either of a Muslim or an ally.
To wage holy war [jihad] against those who, after having been invited to accept Islam, persist in rejecting it, until they either become Muslims or enter the Pact [dhimmah] so that God's truth may prevail over every religion.
To collect the booty and the alms in conformity with the prescriptions of the Holy Laws, as defined by explicit texts and by ijtihad, and this without terror or oppression.
To determine the salaries and other sums due from the treasury, without extravagance and without parsimony, and to make payment at the proper time, neither in advance nor in arrears.
To employ capable and trustworthy men and appoint sincere men for the tasks which he delegates to them and for the money which he entrust to them so that the tasks may be discharged competently and the money honestly safeguarded.
To concern himself directly with the supervision of affairs and the scrutiny of conditions so that he may personally govern the community, safeguard the faith, and not resort to delegation in order to free himself either for pleasure or for worship, for even the trustworthy may betray and the sincere may deceive.11

Beyond the final article, which stipulates generally that the caliph must pay attention to this work and not delegate it irresponsibly, each of the duties of the caliph falls into one of three categories: defense, treasury, or executive. He is to defend the community from attack (article 3), maintain frontier defenses (article 5), and wage war against those who refuse either to become Muslims or to enter into treaty with Muslims (article 6).
Regarding fiduciary responsibility, he is to collect both the alms payments required of all Muslims (to be spent on the needs of the community at large) and the legitimate spoils of war (article 7), fairly determine and pay salaries from the treasury (article 8), and make sure those he appoints handle treasury moneys honestly (article 9). Finally, he is to make sure that the established principles of religion are safeguarded (article 1) and that legal judgments and penalties are enforced (articles 2 and 4). In no case is the caliph granted legislative or judicial authority.
It should be noted that these are the qualifications set out by legists in the event the community is given the chance to determine its own candidates. As al Mawardi notes, that is only the case when the previous caliph fails to designate his successor and, not surprisingly, it was virtually unheard of that someone did not at least claim to have been designated by the previous caliph. It should also be pointed out that although al Maµwardبµ's treatment implies that a wayward ruler may be replaced by due process, in fact none ever was. Indeed, given the fact that there were insurrectionary groups attacking the caliphate at the very time legists were working out Islamic political theory, thinkers from al Mawardi on insisted that even a ruler who fails to live up to the ideal standards must be obeyed.12 As the saying usually attributed to Ibn Hanbal has it, sixty years under a tyrant is preferable to a single night of anarchy.
Furthermore, as the list of qualifications for the office stipulated, the caliph should be capable of ijtihad. Nevertheless, it was also recognized quickly that he rarely was. This seems to be the source of the idea that he could delegate his authority to legal scholars, as well as to the idea, expressed by the Shafi'i scholar al Juwayni (d. 1985) that it is the legal scholars who possess real authority in the community. Therefore, the caliph could be a muqallid (follower of precedents or imitator, rather than an independent thinker), so long as he consulted religious scholars.13 This would become the defining paradigm of Islamic political thought: Islamic law is the ultimate source of political authority.
The classical theory of Islamic government received its fullest treatment in the work of the thirteenth-century Hanbali jurist Ibn Taymiyah (d. 1328). In his best-known work, al Siyasah al Shar'iyah, he explains that he is setting out the requirements of Islamic government. He begins by clarifying that the exercise of authority is one of the greatest religious duties, because "the children of Adam cannot insure the realization of their (common) interest except by meeting together, because every one of them is in need of every other one." 14 And their "common interest" is to live in justice: "To judge according to justice, to render dues to those who have a claim on them, constitute the essential principles of just government and the very purpose of public life."15 Elsewhere, "On justice rests the preservation of both worlds; this world and the next do not prosper without it."16
To Ibn Taymiyah, it is both self-evident and confirmed by revelation ("according to religion and reason") that some people are leaders and most are followers. But he distinguishes real leadership ability from another ubiquitous human tendency-the desire to control: "[L]onging for exaltation over the people is (an aspect) of oppression, since all people are of the same kind."17 The fact that we are social animals makes it necessary for us to establish some kind of government; the fact that many are prone to try to control others makes it necessary to establish righteous government. Taking his cue from the Qur'anic verse he once described as one-third of the Qur'an (3:110), Ibn Taymiyah says: "The ruler is there to enjoin good and forbid evil-this is expected of him in his position."18 However, it is not the leader who makes a community righteous, in Ibn Taymiyah's opinion, but rather the guidance of the community by Islamic law. Thus, the title of his al Siyasah al Shar'iyah means government by Shari'ah (the term generally used to designate the entire body of Islamic law but which, more precisely, means God's unchanging will for humanity; the practical codes of law developed by Islamic jurisprudents are called fiqh, which is human in origin and subject to revision. This distinction will be discussed in greater detail below.). A community guided by the Shari'ah is the al ummat al wasat, the "just, equitable nation" described by the Qur'an.19 Accordingly, Ibn Taymiyah draws a clear distinction between religious and strictly coercive political authority. The example of the Prophet and the rashidun notwithstanding, leadership of the community is not the sole preserve of the caliphal authorities. He agrees with the prevailing opinion that even unjust rulers are preferable to anarchy (although rulers commanding outright contravention of God's will must not be obeyed).20 The government's authority is called wilayah, a kind of deputyship or management. Ideally, he says, it is a trust (wakalah), like the responsibility of a shepherd to the flock. He cites a hadith wherein the Prophet is supposed to have said: "All of you are shepherds, and every shepherd is responsible for his flock," and then concludes that the authority of the caliphal government is "a trust, for rulers are trustees of the souls of believers as in a partnership."21 Referring to the government's work as treasurer for the community, he stresses again: "Treasurers have not the power to apportion the funds as an owner may divide his property; rather they are custodians, representatives, stewards, not owners."22
Overall, in fact, Ibn Taymiyah describes the caliphal government as a practical reality, not a scared or doctrinal issue. He argues against the Shi'i view that the leader of the community is not only essential to the Islamic identity of the community but is infallible.23 He says that only the leadership of the Prophet was divinely instituted. Even the leadership of the rashidun was only relatively perfect. They had been close enough to the Prophet to be able to lead the community in a pious way. But since that time, political leadership has degenerated into mere kingship, temporal and practical, at best. Furthermore, he agrees with al Mawardi that executive leadership should be decided by consensus, or at least a preponderance of opinion of an electoral body, and that its opinion should then be offered to the public for ratification. Like any contract, it should be accepted freely by both sides and both have the right to a reasonable expectation of benefit. The community has the right to expect peace and social order, and the executive has the right to expect obedience so long as he leads in accordance with Islamic law. Again, then, the overriding authority is Islamic law, the legislative-judicial branch of government, rather then the executive.
Ibn Taymiyah makes this quite clear when he says that the identifying feature of an Islamic society is not its leader's character but rather the people's responsiveness to the Shari'ah.24 For that reason, he devotes fully half of his book on Islamic government to the duties of the ruled and a good deal of his other writings to correcting what he believed were deviations that had crept into Islamic practice. Therefore, he says, it is not the sultans-those with executive authority-who bear the legacy of the Prophet's and the rashidun's righteous leadership; it is the religious scholars. In his treatise on the authority of the founders of the four Sunni schools of law, Ibn Taymiyah reminded readers of the Qur'anic injunction to obey God, the Prophet, and those in authority in the community. But he identified "those in authority among you" as the religious scholars, whom he called "heirs of the prophets, and [those to] whom God gave the status of stars for guidance in the darkness of land and sea."25
In this context, Ibn Taymiyah finds the distinction between Shari'ah (God's will for human beings) and fiqh (the laws human beings devise) to be essential. He criticizes people who confuse the two:
People who [confuse Shari'ah and fiqh] do not understand clearly the distinction in the meanings of the word Shari'ah as employed in the Speech of God and His Apostle (on the one had) and by common people on the other . . . . Indeed, some of them think that Shari'ah is the name given to the judge's decisions; many of them even do not make a distinction between a learned judge, an ignorant judge, and an unjust judge. Worse still, people tend to regard any decrees of a ruler as Shari'ah, while sometimes undoubtedly the truth (haqiqah) is actually contrary to the decree of the ruler.
The Prophet himself said: "You people bring disputes to me; but it may be that some of you are able to put their case better than others. But I have to decide on evidence that is before me. If I happen to expropriate the right of anyone in favor of his brother, let the latter not take it, for in that case I have given him a piece of hell-fire." Thus, the judge decided on the strength of depositions and evidence that are before him, while the party decided against may well have proofs that have not been put forward. In such cases the Shari'ah in reality is just the opposite of the external law, although the decision of the judge has to be enforced.26
The weight of Islamic governance having been placed on jurists, Ibn Taymبµyah is careful to guard against claims of infallibility on their part.27 Furthermore, as even a valid judgment is subject to amendment in light of new evidence, Islamic legislation must remain flexible. For that reason, Ibn Taymiyah is opposed to taqlid (imitation of legal precedents). A devoted follower of Ibn Hanbal, Ibn Taymiyah does not deny authoritative judgments-determined on the basis of consensus-by the eponyms of the four schools of Sunni law.28 But like al Shafi'i, Ibn Taymiyah says that, given the vast extent of the Islamic community, consensus among legal scholars is no longer feasible. Even if it were, that would not relieve qualified jurists of the responsibility to examine all evidence in every case, as well as all pertinent arguments in their own school and in others, and then determine on the basis of the Qur'an and the Sunnah the most suitable judgment. If a jurist determines that there exists a precedent resonant with the spirit of revealed truth, that precedent should be applied regardless of the school of law in which it is found. If he does not find an appropriate precedent, he should not hesitate to judge independently-to exercise ijtihad-in accordance with the principles he has determined to be most conducive to justice.29 The direct relationship envisioned here is one between a jurist and revelation; no human authority should serve as a filter for a qualified jurist. Only those untrained in Islamic law are allowed (indeed, obliged) to follow the teachings of human authorities.
For Ibn Taymiyah, then, careful scrutiny of the cumulative tradition of Islamic law was essential to the life of the Muslim community. But the fact that an opinion may have been suitable at a given time and place was no guarantee that it would be suitable in another time and place. This is why he rejected taqlid. To convince others of the point, he called upon the witness of the very scholars being imitated: "[T]he imams themselves have demonstrably admonished the people against their imitation and commanded that if they found stronger evidence in the Qur'an or in the Sunnah, they should prefer it to their own."30 In all cases, it must be the Qur'an that determines a judgment. In particular, he cites Malik and al Shafi'i, as well as the first caliph, Abu Bakr: "Follow me where I obey God; but if I disobey Him, you owe me no obedience." The founder of his own school, Ibn Hanbal, is quoted: "Do not imitate me or Malik or al Shafi'i, or al Thawri, but investigate as we have investigated."31
Thus, ijtihad for Ibn Taymiyah was not only perennially possible but was also essential to the practice of Islam, and disagreement among the fuqaha' (legal scholars) was not a sign of weakness: It simply reflects their humanity and the need for flexibility of Islamic law. Here Ibn Taymiyah expands upon the Hanbalبµ notion of istislah (having regard for social well-being or public interest in rendering legal judgments). The Maliki and Shafi'i schools also use this principle, while the Hanafi's use a similar principle known as istihsan ("approval" or juristic prerogative). In either case, it is a mechanism whereby strict adherence to established precedent or strict legal reasoning can be bypassed if, under the specific circumstances at hand, the common good would not be served by such a judgment. The well-being of the community, its common interest, as Ibn Taymiyah put it above, is justice, the very purpose of Islamic law, of public life, and of the Muslim community. In the commitment to justice lies what Ibn Taymiyah identified as social solidarity (ta'awun), not in uniformity of legal judgments. This is what binds the Muslim community into a unity throughout history, from its origins with the prophets to the final judgment. It is primarily a moral unity, rather than a political unity or even an absolute uniformity of practice. Like the judgments of the fuqaha', jurisprudents, or legal scholars, different communities' practices can diverge to a certain extent, as long as the core of moral unity remains.32 The ideal Muslim community he described is one whose members are mutually supportive in encouraging goodness and denouncing evil and in issuing the invitation (da'wah) to follow the law of God. Participation in issuing this invitation, both in work and in deed, to join the community of God's witnesses on Earth-i.e., to live Islamic law-is the core of Islamic unity or solidarity. Provided this type of unity exists, differences in practice and judgment are not only acceptable but inevitable.