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Conclusion
What Westerners think of as the three branches of government are, in classical Islamic theory, split between those who wield coercive power (the executive branch) and the legislative-judicial branch. The former has authority over defense matters and is charged with managing the treasury according to the law as well as executing the laws and the judgments of legal scholars. But by far the greatest emphasis is on the latter branch, particularly its legislative capacity, for a community's identity as Islamic lies not in the leader's behavior but in whether or not Islamic law prevails.
This orientation is reflected in the classical designation of the Islamic world as dar al Islam (abode of Islam) as opposed to dar al 'ahd (abode of covenant), dar al sulh (abode of truce), or dar al harb (abode of war). Although these terms do not appear in the Qur'an, dar al Islam became the classical scholars' most common designation for the Muslim community.33 It refers specifically to those territories whose leaders are Muslim. Dar al 'ahd and dar al sulh are regions whose leaders have agreed to pay the Muslim leaders a certain tax and to protect the rights of any Muslims and/or their allies who dwell there, but who otherwise maintain their autonomy, including their own legal systems. Dar al harb is a region whose leaders have made no such agreement and where, therefore, Muslims and their allies, unprotected by law, are technically under threat.
In actual practice, most Muslims follow the law of the school prevailing in their region. Shafi'i law, for example, is dominant in Indonesia, while Hanbali law prevails in Saudi Arabia. But theoretically, as Ibn Taymiyah stressed, no one is forced to follow a particular school of thought. Each jurisprudent has not only the right but the responsibility to study as broadly as possible in all legal schools before making a judgment on Islamic law, and individuals are technically free to follow the judgments of those they consider the wisest and most just. This freedom within Islamic law is, in fact, the focus of contemporary discussions of democracy in Islam. A claim could even be made for populism in Islamic political theory, since anyone can enter the ranks of the fuqaha' and thus participate in the dominant branch of Islamic government. Indeed, as Hallaq argues, the science of Islamic jurisprudence was developed precisely to set out the procedures whereby anyone with proper training could participate in this branch of the government:
The primary objective of legal theory . . . was to lay down a coherent system of principles through which a qualified jurist could extract rulings for novel cases. From the third/ninth century onwards, this was universally recognized by jurists to be the sacred purpose of usul al fiqh [the roots of Islamic legislation]." 34
Populist or not, however, sacred legislation is considered a communal duty in Islam. That means that although not everyone need assume this responsibility, at least enough people have to undertake it to get the job done. And the job, as articulated by Ibn Taymiyah, is to establish a just society. Therefore, at least in classical Islamic theory, participation in the dominant legislative-judicial branch of government-the one designed to make sure the entire government is functioning according to the law of God-is religious activity. And that religious activity is the source of political authority in classical thought.
Islamic Science
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