Доктринальные основы исламского государства (English)

DOCTRINAL FOUNDATIONS OF THE ISLAMIC STATE

         Issues of the Humanities, issue 1 for 2011, pp. 50-55

Pashkov R.V., MSLA specialist

1. FORM OF THE ISLAMIC STATE.

Western concept of the form of government.

Let’s briefly outline the Western concept of form of government. Form of government is a collective concept that includes, in turn, the form of government, the state structure, and the state-legal regime.

The form of government characterizes the formation and organization of the highest organs of state power, their relationships with each other, and the population. In other words, this category indicates who rules the state and how. States are divided into republican and monarchical forms of government.

The form of government reflects the structure of the state—the relationship between the state as a whole and its constituent territorial units. By form of government, all states are divided into simple (unitary) and complex (federal and confederal).

A state-legal regime is a system of means and methods for the existence of state power. A distinction is made between totalitarian, authoritarian, and democratic state-legal regimes.

Islamic concept of the form of government.

         The Islamic concept of the state differs from the Western one. First and foremost, it is the concept of an Islamic state, that is, a state dar al-Islam, that is, a land of Islam, and a state built according to Islamic law. Thus, this concept describes only the Islamic state itself, and not all states in general.

It should be noted that dividing governments into different forms is difficult in Islam. Classical Islamic political and legal doctrine held that Muslims cannot be divided into ethnic groups within the state, and that all Muslims constitute a single ummah, indivisible and inseparable. Existing federations, such as the United Arab Emirates or Malaysia, are unions of states, not ethnic groups, and this fundamentally distinguishes these states, even their Westernized foundations, from the Western understanding of federation. Of course, Western countries also have territorial divisions within federations, but this is more of a convention, designed to facilitate territorial division.

The concept of the Islamic form of government is a collective one and encompasses the political form of Islam and the type of Islamic state. The political form of government indicates the doctrinal foundations by which the ruler governs and the laws upon which authority is based. Thus, to some extent, it is analogous to the form of government, but it also encompasses the doctrinal aspects of governance.

The type of Islamic state is closest to the Western concept of a state-legal regime, but it is the entire set of specific forms of states, and not just the means and methods of governance.

Existing political forms of Islam.

The Islamic national form of traditionalism (the author’s collective term) is a political form of Islam existing in Islamic countries, relying on traditional institutions of power that complement the state’s governing activities, stemming from the religious union of state and society, and embracing the Islamic Renaissance as its ideology. In this Islamic national form, Islamic institutions merely supplement Western institutions of power to stabilize power and act as a lightning rod within the political system.

From a fundamentalist perspective, the Islamic form of government is a political form of Islam, created in an Islamic country as a universal, agreed-upon set of legal institutions with the mission of eternal jihad and continuous global conquest. In principle, the Islamic form of government is not entirely correct, but this term has become firmly established and has been adopted by fundamentalists themselves. It is more accurate to speak of an Islamist form of government, but it sounds much less pleasing.

Islamocracy in modernism (more broadly, Islamic democracy) is a political form of Islam that Westernized strata in the Islamic world strive to build, drawing on global experience, a certain element of tradition, and embodying the spirit of Islam. Islamocracy’s greatest weakness is its Western character, which it is unable to conceal.

Types of Islamic state: sultanate, emirate, imamate, caliphate.

Sultanate.

         A sultanate has historically been an Islamic state with hereditary rule by a dynasty of sultan.

         There are currently two sultanates in the world: the Sultanate of Oman in Arabia and the Sultanate of Brunei in Southeast Asia. The Sultanate of Oman is located in the southeast of the Arabian Peninsula, bordering the Kingdom of Saudi Arabia, the United Arab Emirates, and the Republic of Yemen. His Majesty Sultan Qaboos bin Said came to power in 1970.

         Currently, the Sultanate of Oman has the following system of governance. The State Council (Majlis-al-Dalwa) is appointed by the Sultan. Its first meeting was in 1998. The Shura Council (Majlis-al-Shura) was formed in 1991 to replace the State Advisory Council (established in 1981). The head of the Shura Council is appointed by royal decree, and the vice-heads are elected by the Council itself. The term of office is three years, and there are 82 members. The Shura Council discusses five-year development plans, communicates its opinions to the Sultan, and is responsible for environmental protection. International affairs are entirely under the Sultan’s authority.

         Eight regions make up the state’s territory, including the autonomous regions of Muscat (the capital) and Dhofar. Regional heads are appointed by the Minister of the Interior and report to him, followed by walis in the 59 provinces. The judicial system includes the Supreme Court and the Sultan’s courts in the provinces.

Emirate.

         An emirate is a small Islamic state characterized by the hereditary rule of an emir’s dynasty or the religious leadership of an elected emir. The small nature of the state and its seemingly stage-like nature on the path to the revival of the caliphate are important.

         The North Caucasus Emirate was an Islamic state that existed on the territory of Chechnya and Western Dagestan from September 1919 to March 1920. It was absorbed by the RSFSR.

         By mid-1918, the highlanders began to unite around the pan-Islamist Sheikh Uzun-Hadji of Avaria to fight the White Guard armies. Uzun-Hadji, with a small detachment of highlanders, occupied the village of Vedeno and declared war on Denikin. The Emirate of the North Caucasus was soon proclaimed.

         In September 1919, a messenger, a certain Inaluk Arsanukaev Dyshninsky, arrived in the village of Vedeno to see Uzun-Hadji, bearing a letter purportedly from the Turkish Sultan. After a series of meetings with his associates, Uzun-Hadji, according to historians, declared the establishment of the Emirate of the North Caucasus as an independent Sharia monarchy under the protectorate of the Caliph, His Majesty the Ottoman Emperor Muhammad Vakhit Din VI. The temporary capital of the emirate was established in the village of Vedeno, with the intention of having a permanent capital in Grozny. Uzun-Hadji gave himself the title: His Majesty the Imam and Emir of the North Caucasus Emirate, Sheikh Uzun Khair Haji Khan.

         In the newly created emirate, as in other monarchical states, privileged classes began to form. The emirate’s armed forces consisted of seven armies. A government was formed to govern the country, headed by the Grand Vizier (highest official), Prince Dyshninsky, who also served as the Commander-in-Chief of the North Caucasus Emirate. The government included eight ministers, all of whom, with the exception of the Minister of Justice, held the rank of major general.

Imamate.

         The Imamate is an Islamic state in which the leader is a religious spiritual leader, the imam, who possesses unquestionable religious authority. The Imamate is more closely related to the Shiite doctrine of statehood and can be global in nature, like a caliphate.

         The North Caucasian Imamate ( Imamate of Shamil ) is an Islamic state that existed on the territory of Dagestan and Chechnya from 1829 to 1859. It was conquered and absorbed by the Russian Empire . It experienced its greatest development during the reign of the Imam. Shamil ( 1834 — 1859 ).

         Shamil succeeded in uniting the multi-ethnic region and establishing a coherent centralized system of governance. The territory was divided into administrative units—naibs—the number and size of which varied depending on the military and political situation. Twenty were more or less constant, sometimes reaching 50. For a time, they were united into four governorates (districts) headed by mudirs. The naibs were divided into sections under the control of mazuns, who were responsible for military musters and food procurement. Judicial and administrative functions were performed by qadis, muftis, and alims. The lowest administrative unit was the aul, which retained an elected system of governance , but elders were now appointed by the imam on the recommendation of the naibs.

         The head of state, Imam al-Azzam (the Grand Imam), the «father of the country and the saber,» was the spiritual, military, and secular leader, wielding enormous authority and a decisive vote. However, his power could not be considered unlimited. Beginning around 1841, the Divan-Khane (supreme council) met under him every day except Friday, reviewing administrative, military, economic, and judicial matters and hearing reports from the naibs. Congresses of naibs and alims were periodically convened to discuss the most important state issues (1841, 1845, 1847, 1851, 1858, 1859).

Local government was in the hands of naibs appointed by Shamil. Their activities were regulated by the «Regulations on Naibs»: tax collection and militia, courts, punishments, and care for widows and orphans. The naib was accompanied by a mufti, an executioner, and a security detachment —murtaziqats. They not only served as the personal guard of the highest officials of the imamate but also formed the core of the army. These warriors renounced family, swore an oath, and were the most religious and fanatically devoted to the imam. The lowest administrative level was represented by elders, elected by the people and approved by Shamil on the recommendation of the naibs. The elders and qadis ensured the execution of the imam’s decrees and orders and were responsible for maintaining order in the village.

Caliphate.

         The Caliphate is a single worldwide Islamic state according to the state and legal doctrine of Islam.

         The Caliphate is a feudal theocratic Arab — Muslim state that emerged as a result of the Arab conquests in the 7th-9th centuries and was headed by caliphs . The initial core of the Caliphate was the Muslim community ( ummah ) created by Muhammad in the early 7th century in the Hejaz (Western Arabia) . As a result of the Arab conquests, a vast state was created that included the Arabian Peninsula , Iraq , Iran , most of Transcaucasia , Central Asia , Syria , Palestine , Egypt , North Africa , most of the Iberian Peninsula , and Sindh . The word Caliphate ( Arabic. Khalīfah – “heir”, “representative”) – means both the title of caliph and the vast state created after Muhammad by the Arab conquerors under the leadership of his caliphs.

         The history of the Caliphate is conventionally divided into three periods. The first period dates from 630–750. During this period, beginning immediately after the death of Muhammad, a Muslim state subordinate to the caliph was formed. The era of the first four caliphs (632–661), called the Khulafa al-Rashidun («Rightly Guided Caliphs»), sparked subsequent disputes between those who called themselves Sunnis and Shiites. The latter believed that an elected caliph, unless he was a relative of the Prophet, was not legitimate. Only Ali, the Prophet’s cousin and son-in-law, and the father of his grandsons Hasan and Husayn, was accepted by the Shiites as caliph without reservation. This period also includes the reign of the Umayyad dynasty (661–750), whose headquarters were in Damascus.

         The second period (750 – mid-9th century) falls under the Abbasid dynasty, which ruled in Baghdad. During this period, the caliphs lost political authority over most of the Muslim world, as provincial governors sought autonomy. However, the caliph retained the title of spiritual leader of Muslims. The de facto independent rulers recognized his spiritual sovereignty and, declaring themselves his vassals, mentioned his name in Friday prayers.

         At the same time, during this period, new dynasties of caliphs asserted themselves – the Fatimids in Egypt and the Umayyads in Spain.

         The third period begins in the mid-9th century and lasts until the 13th century and is characterized by the decline of the Abbasid dynasty. However, from 1171 onward, the Abbasids were the sole caliphs. In 1258, the dynasty’s reign was interrupted by the Mongol invasion led by Hulagu. Having captured Baghdad, the Mongols executed Caliph Musta’sim, who had no heir. An unprecedented situation arose: the Muslim world was left without its spiritual leader. Only two Abbasids escaped the bloody massacre in Baghdad. One of them, the uncle of the murdered caliph, was invited to Cairo by the Mamluk Sultan Baibars, where he was received with honors and proclaimed caliph in 1261. The Mamluk rulers viewed the Abbasid presence in Cairo as a guarantee of the legitimacy of their rule.

         After the Turkish conquest of Egypt, the idea of a caliphate gradually faded. However, in the 18th century, it was revived in the form of a legend according to which the last Egyptian Abbasid (Caliph Mutawakkil) supposedly handed over the caliphate to the Ottoman Sultan Selim (1517). In fact, on August 24, 1516, a battle took place between Ottoman troops and Mamluk forces on the Battle of Dabiq (Marj Dabiq, near Aleppo). The battle ended with the Mamluks fleeing in disarray, and on August 28, the Turkish sultan triumphantly entered Aleppo. The following day, Sultan Selim I was crowned with the title «Servant of the Two Holy Cities.» This signified that the sultan assumed the functions of spiritual and secular leader of all Muslims, for whom Mecca and Medina were the holy cities. Having assumed this title, the Ottoman sultans began to call themselves caliphs and demand that the rulers of other Muslim countries recognize their supreme rights.

         Historians attribute the legend of the transfer of the right to the caliphate to the sultan from the last Abbasid to the diplomat K. Murdja d’Ohsson. Caliph Mutawakkil, taken by the Ottomans to Istanbul, was allowed to return to Cairo after the death of Sultan Selim, where he lived, retaining the title of caliph, until 1543. The caliphate was officially abolished in 1924 by Turkish revolutionaries.

New Islamic form.

New legal phenomena include the development of a political form of Islam known as a new Islamic form and a type of Islamic state known as Islamat. The new Islamic form aims to transform the world and can be defined as a form emerging in the Muslim world as a result of the Reformation, embodying the traditions of Islamic thought and revealing itself as a humanistic system of public institutions and law. The new Islamic form may take the form of a caliphate (in the Arab world) or an Islamat (in non-Arab countries). Understanding the systems of these types of Islamic state will change. The new Islamic form of government will reveal itself in the subsequent Caliphate.

         The Second New Caliphate will emerge as a result of the unifying Reformation of the Muslim world. The governments of Muslim countries will either participate in this process or be replaced. This process is irreversible, as stagnation cannot continue forever. The Second New Caliphate will be a democratic, humanistic, spiritual state where human rights will be respected as the foundation of the relationship between the individual and the state. The Second New Caliphate will aim to unite all Muslim states through various means, but may not include all Muslim countries, remaining an Arab nation-state. In such a case, the Second New Caliphate will act as the core of the community of Muslim Caliphates.

         Islam, as a national state of a Muslim people, synthesizes the achievements of democracy and Islamic traditions. At the head of Islam, there will be an amir (head of state) as the supreme leader of Muslims. Islam will be the second type of Islamic state in the future, alongside the caliphate, forming a community of Muslim states. The amir, like the caliph, is an elected official.

2. SOURCES OF ISLAMIC LAW.

Sources of Islamic law.

The main sources of Islamic law as normative legal acts include:

• Baya,
• The doctrine of Sharia,
• Fatwas.

         In this case, we are talking specifically about normative legal sources of law as specific documents, formulated principles, ready-made rules, and not general sources of law such as the Quran, Sunnah, ijma and qiyas.

         Bay’ah is a constitutional and legal agreement between a ruler and the people regarding the fundamental conditions of election and governance. Sharia is a comprehensive legal doctrine developed by Muslim scholars. Finally, fatwas are the opinions of eminent Islamic scholars with recognized authority.

About the nature of baya.

         Let’s define bay’ah, which is translated into Russian as «agreement.» Bay’ah is a constitutional and legal agreement between the ruler of a Muslim country and the highest representative body—the parliament—regarding the terms of his election and rule, expressed in the obligations assumed and the rights arising from them for their implementation.

         In other words, bay’ah is, first and foremost, a constitutional and legal agreement. The Western world is familiar with the concept of an administrative and legal agreement, although the issue is controversial there. However, a constitutional and legal agreement is a new phenomenon in modern global practice, yet organic and natural for the Islamic world.

         The concept of a contract implies equality and free will on the part of both parties. This is fully present in bay’ah: both the ruler and the parliament are free in their actions. Bay’ah is a consequence of the assumption of office as ruler, in the sense that without a contract, not just governance is impossible, but just and wise governance based on mutual rights and obligations.

         The following conditions can be included in the content of the baya:

• Conditions of election, which include the fact of concluding an agreement, compliance with the election procedure and qualifying conditions, which include age — 35 years, Muslim (this still exists, because the country is Muslim, although exceptions are possible), good and fair character (meaning behavior, reputation), higher education, political experience
• The conditions of governance are a system of mutual obligations, possibly more specific: political, economic, social and cultural rights and obligations, that is, obligations to fulfill one’s election program.
• The conditions for early resignation from office — impeachment, health reasons, and so on — are expressed more in the Bay’ah than in the Constitution (Basic Law).

The procedure for concluding a bay’ah is as follows: a ruler is elected in the country. The Majlis al-Bay’ah, within 10 to 30 days of the election and no later than one month before assuming office, proposes a treaty to the ruler. Refusal of the bay’ah invalidates the election. Attempting to assume office without a bay’ah constitutes a rebellion against the foundations of power in the country.

         Bay’ah can be considered a source of constitutional law and is considered inferior in legal force to the Constitution and superior to laws. Laws cannot contradict bay’ah. The Majlis al-Shura has the right to amend bay’ah. Simply put, bay’ah is not a social, but a legal consent of Muslims to the right of a certain person to rule over them.

         Thus, bay’ah is one of the distinctive legal institutions of Islamic constitutional law and allows it to develop dynamically without losing its connection to tradition. Bay’ah, it is believed, can play a positive role in the establishment of a truly Islamic state.

The status of adat in Islam in its perspective.

         Historically, adat was the first law known to Muslims themselves. Sharia was the second. Adat is, first and foremost, the law of Muslim human practice. And therefore, it arose first, at a time when there was no call to worship and no Muslims. Humanity evolved from a practical exploration and understanding of the world, and adat became the form of regulation for these practical relationships, acquiring distinctive characteristics through the lens of Islam.

         The relationship between adat and sharia is complex. Fundamentalists insist that sharia supersedes adat. Muslim scholars of the early centuries of Islam explicitly stated that three of the four Sunni madhhabs, with the exception of the Hanbali, explicitly permitted urf as a method of applying adat. In its modern form, adat has not remained unchanged, but has experienced the broad and multifaceted influence of Islam. Islam served as the foundation and value system of adat, but it was Islam, not sharia, that provided the framework for the development of adat. Sharia set the framework for the development of adat, but it had no direct influence.

         The contradiction between Sharia and Adat lies in the fact that both legal systems regulate the same relationships, but Adat is a practical matter, while Sharia is a divine law. If we understand Sharia as a law created according to divine laws and a direct system for its development, rather than as a method of regulation, then it approaches and, in principle, truly is the law of human reason, but it is rooted in divine religion, preserving its conceptual foundations. Adat, however, remaining within the framework of the Muslim worldview, becomes the law of tribes that have not yet integrated into the unified value and behavioral space of Muslims. Adat here appears not as a backward law, but as a historical law regulating relationships that are disappearing from public life.

         Muslims should be given the right to choose and, accordingly, to renounce this choice. Adat could serve as a secondary, advisory form of legal proceedings for tribal members. Within each tribe, an Adat Code could be established, along with an Adat Code at the central level regulating the most general relations. An Adat Commission could be established under the Caliph (president). Its functions include the final authority on adat matters, the appointment of adat judges of second instance, and proposals for general policy regarding tribes. The courts of second instance would be the Judicial Councils of each tribe, numbering over 200,000 people, and equivalent tribal associations. Finally, there would be primary adat courts, whose members would be elected by the tribal shura (jirga) and approved by the head (sheikh) of the tribe.

The relationship between legal systems: adat, sharia and state law.

         First, it’s necessary to clarify how adat, sharia, and state law are understood in Islam. Adat, or the customary law of Muslim peoples, can be explained as a legal system created through human practice as a recurring, optimal rule of conduct in life situations. Sharia is the divine law given to Muslims by Allah through the Prophet Muhammad, perfect in its creation. State law is the law of the state, created by the human mind over the course of its evolution and represents the most rational form of legal regulation.

         Historically, adat emerged first as the most accessible legal system, developed by all members of society throughout their lives. Sharia could not have been established immediately, as it simply would not have been accepted. Adat paved the way for the implementation of a pre-existing form; in other words, it served as the foundation for the construction of this system. Sharia instantly formalized legal relations, embodying them in a pre-existing form.

         The most complex question remains the status of state law. The Western world developed a completely secularized secular law, reaching its logical conclusion, while the Muslim world struggled to recognize state law, rightly considering it a product of Westernization.

         Unfortunately, Muslims have not yet developed a rational state law as an original system, although work is underway. At the same time, Sharia is not being modernized, as its immutable nature is assumed. Sharia is perfect not in how it is given, but in how it develops. Sharia itself contains a mechanism for evolution, and this is perhaps the only path for its development until the coming of a new prophet or the Day of Judgment.

It is necessary to develop Sharia as a state law that incorporates the best traditions of the original Sharia given by the Prophet. That form of Sharia was given so that divine law would be accepted; otherwise, there would be complete misunderstanding. And now we must move away from what was accomplished in another historical era.

         Thus, adat is the law of human practice, sharia is divine law, and state law is the result of human reason. The most correct path is to develop sharia while preserving its essence as state law derived from human practice.

Fatwas.

         Fatwas are issued by eminent Muslim legal scholars, known as mujtahids, who enjoy universally recognized authority in the Muslim world. A fatwa is a mujtahid’s opinion on a specific legal issue and must be based on the principles of Sharia. Ultimately, a fatwa is also a source of law, but rather a derivative one, as it derives from Sharia, as does bay’ah.

         The fatwa contains an introductory part, that is, the statement of the problem, its description, a motivational part, that is, a presentation of the mujtahid’s arguments, and at the end a command, that is, an established rule of conduct.

         Fatwas are heavily influenced by the madhhabs (legal schools) of the mujtahids, but many are still of pan-Islamic nature. A fatwa is, to some extent, analogous to a precedent in the Anglo-Saxon legal system, as it is issued by a specific person on a specific legal issue; however, this person is not a judge, but a scholar.

3. CONCEPTS OF THE ISLAMIC POLITICAL SYSTEM.

Concepts of the Islamic political system.

         Two main concepts of the Islamic political system can be identified. Each is based on principles as the fundamental principles of organizing political power. In the first concept, the principles consist of three components:

• Principles of the creation of an Islamic political system,
• The principles of functioning of the Islamic political system,
• The principles of this Islamic political institution.

The principles of creating an Islamic political system are:

• Tawhid,
• Risalat,
• Ummah.

         The principle of tawhid means monotheism in Islam. Allah is one and no one can see Him. Allah is the God who gave Muslims the truth and faith in Him. Risalat means the prophecy of the Day of Judgment. The Prophet revealed the prophecy to Muslims and foretold its fulfillment. The end of Muslims’ earthly life will be the Day of Judgment, when Allah will judge everyone and decide on a new life. The Ummah is the worldwide community of Muslims. Nothing and no one can separate Muslims in their quest to know Allah, and this is the highest goal. All Muslims are brothers and friends.

         The principles of functioning of the Islamic political system are:

• Majlis,
• Shura,
• Caliph.

         The Majlis establishes a representative Muslim government for the benefit of democratic governance and the prosperity of Muslims. The Majlis embodies the representation of Muslims on Earth before the supreme authority and their right to determine their own destiny according to the laws of Allah. The Majlis can pass laws binding on Muslims’ earthly lives.

         Shura is the principle of consultation in Islam between the Caliph and the representatives of the Ummah. Consultation presupposes the Caliph’s fulfillment of the representatives’ will, for which he is obligated to ascertain their will. The Caliph cannot go against the will of the Ummah, except in times of grave distress to the Ummah and Muslim misguidance, and with the consent of the ulema.

         The second concept is simpler and presupposes the existence of general principles for organizing power as a holistic system. These principles include:

• The Sovereignty of Allah,
• The doctrine of Sharia as a source of law,
• The principle of consultation,
• Obedience to the Amir,
• Conclusion of the baya.

         Supreme political sovereignty belongs to Allah, and the ruler is merely His vicegerent until the Day of Judgment. Allah alone can exercise divine judgment and determine the fate of humanity.

         Islamic law rests on the doctrine of Sharia as a source of law. It is not precedent, as in the Anglo-Saxon legal system, or statute, as in the continental Romano-Germanic legal system, but rather a doctrinal understanding of law. And it is from this doctrine that the interpretation of law through fatwa by scholars derives as a second source of law.

         The principle of consultation coincides with the Shura principle in the first concept. We should only add that this principle is now increasingly approaching the Western understanding of parliamentarism.

         Obedience to the Amir as head of state is a necessary condition for the stable development of an Islamic state. The Amir must be obeyed as long as he observes Sharia. Sharia is the ultimate criterion for assessing the fairness of the Amir’s rule.

         The relationship between the people and the ruler is regulated by the bay’ah as a constitutional and legal contract. The bay’ah carries all the fundamental responsibilities of the ruler, in addition to the state constitution. Only the bay’ah contains a specific program of action for the ruler and establishes liability for failure to implement it.

Evolution of Islamic political and legal doctrine.

         Let’s first address the issue of sovereignty. In the classical understanding, sovereignty over Muslims belongs solely to Allah as the Creator of the worlds. The ruler, however, rules as a divinely given being. In modern doctrine, sovereignty belongs to Allah, but He has entrusted it to Muslims until the Day of Judgment, so that they may live by His laws of their own free will. Man is Allah’s vicegerent on Earth.

         During the Middle Ages, federations and unions were not permitted. Muslims are equal before Allah, and nationality divides them. Federations exist in the Muslim world, the main principle of which is unity in diversity. Nationality is more specific to Islam and complements it.

         A pluralism of political parties has emerged. Previously, there were none, as Muslims were considered to be a single party of Allah. And parties divide them, sowing discord. Parties shape the political will of Muslims, ensuring their representation in the highest organs of power and the implementation of state policy.

         In classical times, the concept of separation of powers certainly did not exist. This is an achievement of Western political and legal thought. Today, separation of powers is permitted. But in Islam, separation is secondary, while the primary consideration is the unity and balance of powers before the supreme authority of the ruler.

         In classical times, the Majlis al-Shura was typically appointed by the ruler to consult with the community and had advisory functions. Today, the Majlis al-Shura has the power to enact laws, as Sharia is the ideal, most general law, while the Constitution and laws specify it, and Sharia can be reformed in accordance with new understandings.

         In classical political and legal doctrine, ministers are directly subordinate to the head of state. In modern understanding, the institution of government as a collegial body of executive power has come to be accepted. The functions of execution have expanded exponentially, and therefore Islamic scholars have accepted the practice of establishing a government.

         In the judicial system during the classical period, there was a qadi of all qadis. He had the power to appoint and dismiss judges. Currently, the creation of a body known as the Supreme Judicial Shura is being advocated. This is a collegial body, headed by the ruler, that administers the judicial system. The functions of the supreme judicial authority and the administration are separate.

         The concept of a New Islamic World Order has emerged. In classical times, there was no global community, only rivalries between individual states. Now, the Islamic world is striving to take its rightful place within it, developing its own views and pursuing its own foreign policy. The concept of a New Islamic World Order envisions equality and the shared development of all humanity, including Muslims.

Schur’s principle.

         What is the Shura principle, and what is it not? The first thing that is obvious is that it is a principle of authority, its functioning, and its development, both in the state and in the Islamic world. More precisely, it is a principle of the Islamic political system, namely, the functioning of the Islamic political system as a system of political and legal coordinates within which Islamic states are situated.

         The classical, celebrated understanding of the Shura principle assumes that there is a ruler and a Shura. The ruler is perhaps the caliph or the ruler of an ordinary Muslim country. The Shura is the body representing the interests of the Muslim community, which could be the entire country or the community of all Muslims in the caliphate—the ummah. The Shura principle is translated as the principle of consultation, and this is how it is commonly known. Shura, in turn, means «advice.» The core idea of the classical understanding of this principle is that the ruler is obligated to consult with the Shura when making decisions.

         Western scholars pose the question bluntly: consultations are not binding; the ruler can ignore or pretend to take the Shura’s opinion into account. And there is no real oversight mechanism. The very formulation of this question is incorrect. The ruler is the supreme authority, while the Shura is the legislative body. Perhaps it would be more correct to question the Shura’s competence as the parliament of the Muslim nation-state. In that case, the Shura as a principle becomes the Majlis al-Shura as a body.

         The Shura principle, as understood today, states that the ruler is obligated to implement laws passed by parliament within the scope of its authority. This understanding is closest to the latest advances in legal thought and allows for a new expression of what was established in classical times. A fundamental renewal of many tenets of Islamic political and legal thought is necessary, and this is precisely what is currently underway.    

The principle of the Majlis.

         The Majlis is an assembly, a chamber. If the Shura is understood as a community council, then the Majlis is a representative, decision-making body of state power. At the same time, the Majlis, like the Shura, is a principle of Muslim political life. In the most general sense, the Majlis is a body that makes decisions of constitutional and legal significance, or, in other words, the most important decisions on matters of state life. Therefore, the Majlis as a principle is what is known in the Western world as representative government.

         The Majlis is the representation of Muslims as a whole and as a part before the supreme authority of the Caliph. The Majlis encompasses not only a permanent professional assembly of deputies but also a consultative assembly of emirs in the Majlis al-Amir. The Majlis and the Shura are one and the same, two sides of the same coin; one is unthinkable without the other, and together they form an inseparable whole.

         Representation signifies the elective nature of the Majlis as a freely elected parliament, representing Muslims. Violation of this right immediately leads to despotism and tyranny. Violation of this right allows us to speak of resistance to oppression.

         The question of the upper house of parliament is interesting. Previously, political and legal doctrine prohibited its formation, as it was based on the territorial principle in a federal state, and federation was considered unacceptable as divisive. All Muslims are united and equal—that’s what was said. Now, views have shifted: all are equal in faith and united in diversity as a whole. It would be most appropriate to compose the upper house from the heads of the sultanates (sultans), thereby ensuring cooperation between the regional and federal authorities. Perhaps this body would allow for the most effective organization of such cooperation.

         The Muslim world has been moving towards this principle for a long time, since divinity presupposes the obviousness and self-evident nature of the ruler’s authority, but until this authority has come, it is necessary to be guided by human reason.

4. STRUCTURE OF THE ISLAMIC STATE.

Caliph of the Caliphate.

         A prospective candidate for the position of caliph must also meet certain requirements. First and foremost, the candidate must be a just and popular person capable of rendering rulings (ijtihad) based on the primary sources of religion —the Quran and Sunnah—in other words, he must be a learned man. Furthermore, he must possess all the necessary qualities for governing the state—determination, courage, and the ability to defend the state. Physical fitness and health are also of great importance. He must be healthy and free of obvious physical defects.

After his election, the Caliph as head of state is obliged to perform the following functions:

• Ensure the implementation of Sharia;
• To protect the inviolability of property and all types of ownership of citizens;
• Provide all citizens with a minimum means of subsistence;
• To protect the state from external aggression and strengthen borders;
• In case of enemy aggression, conduct military operations;
• Organize the collection of various types of taxes (zakat and jizya);
• Provide civil servants with adequate salaries;
• Provide social benefits established by religion to all those in need;
• To perform all the basic state and religious duties oneself.

         Citizens of the country are obligated to unconditionally support and obey the caliph. Such full support should only be granted if the caliph demonstrates his full commitment to Sharia law. If the caliph openly violates religious tenets, follows his passions, or even commits religiously questionable acts, then the issue of his unfitness for office may arise. However, this must be thoroughly investigated and proven. If the caliph who has sinned repents and brings his actions back into line with Sharia law, then a new election is necessary for his continued tenure. The caliph’s tenure is also invalidated in two other cases: if he has obvious physical disabilities, and if he lacks freedom of action and is a puppet of others.

Amir of Islam.

         Islam is headed by the Amir of the state as the supreme political leader. The Amir is, first and foremost, a political leader, acting in concert with the spiritual leader of the country’s Muslims, the Sheikh ul-Islam. Their symbiosis, a union, is evident, as in a caliphate. The Amir does not necessarily need to be an educated scholar. He must, above all, be a courageous and intelligent political leader, yet broadly educated and understanding of Islamic issues. The Amir must be free of obvious physical defects and possess mental health.

         The highest criteria for an Amir’s actions are public benefit and adherence to Sharia. An Amir must be obeyed as long as he acts for the good of the state and in accordance with Sharia. An Amir must be removed from office if he pursues private interests in his actions or is subject to harmful passions. An Amir must be a Muslim by faith.

On the issue of classification of Majlises.

         First, let’s define what the Majlis is. The Majlis is a representative body that decides matters of constitutional and legal significance. This includes the adoption of laws. The Shura is a professional body that considers important state issues. The Jirga is a representative body of a tribe or federation of tribes in a communal Islamic system. The Diwan is a council of supreme authority, an advisory body, or a reform body.

The most complete name of the Majlis can be presented as follows:

• Majlis al-Ummah (Ecumenical Assembly),
• Majlis al-Bay’ah (Treaty Assembly),
• Majlis al-Shura (Council Chamber),
• Majlis al-Ulema (Spiritual Chamber),
• Majlis al-Da’wa (House of Call),
• Majlis al-Sharia (Chamber of Sharia),
• Majlis al-Amir (House of Emirs).

Majlises.

Let’s define it. The Majlis al-Ummah is the universal representative body of Muslims with the supreme constituent authority to amend the highest legal law given to Muslims, that is, Sharia. Sharia is the supreme law, but it is understood by Muslims, and this understanding changes according to historical times. Furthermore, Sharia was originally given as a law to regulate social life in the early centuries of the Hijra. Only a universal body of Muslims, in accordance with the Islamic spirit and the laws of Allah, can amend Sharia as the law of all Muslims.

         The Majlis al-Bay’ah is the highest representative body of the Caliphate or, in a Muslim country, the body that concludes a bay’ah with the elected ruler regarding the terms of rule. In principle, while the Majlis al-Ummah can be composed of higher Majlises or elected by all Muslims, the Majlis al-Bay’ah is an expanded version of the Majlis al-Shura.

         The Majlis al-Shura is the supreme legislative body of the caliphate or, in a Muslim country, a parliament in the Western sense, elected for four to five years. The Majlis al-Shura is a unicameral parliament. As a rule, federalism is difficult to accept in a unitary state, as it divides Muslims. After all, the Quran recognizes no national divisions, only religious affiliation.

         The Majlis al-Ulema is the highest body of the clergy, or more broadly, of clergymen, as a body that verifies the compliance of laws with the spirit of Islam and the norms of Islam and Sharia. In principle, frankly speaking, it is a professional clerical body, so to speak, including representation from spiritual authorities not affiliated with the church. The most important thing is the spiritual authority of these individuals, their supreme power in society, which allows them to make such decisions.

         The Majlis al-Da’wa is the highest representative body, essentially the upper house of parliament, providing a supervisory and counterbalancing function to the Majlis al-Shura. It is elected either by the parliaments of Islamic lands or by Muslims in administrative-territorial units. It functions, for example, as a supreme court for officials.

         The Majlis al-Sharia is a consultative representative body of Muslim scholars. The Majlis al-Sharia may submit proposals to government bodies and is composed of recognized, eminent mujtahids, but it should not replace official government bodies. It may also serve as a body for drafting amendments to Sharia law.

         The Majlis al-Amir is a consultative body of the emirs as heads of emirates (regions) in the Caliphate and a Muslim country. It is, once again, an advisory body, making proposals to the head of state to improve its work, but it is not a decision-making body. While it is possible that the Majlis al-Amir could replace the Majlis al-Da’wa or a third chamber of parliament, this is unlikely.

         Thus, the Majlis al-Bay’ah, Majlis al-Shura, Majlis al-Ulema, Majlis al-Dawa, and Majlis al-Amirah are state organs. The Majlis al-Ulema is the spiritual chamber. The Majlis al-Dawa and Majlis al-Amirah are organs of territorial representation. The Majlis al-Amirah and Majlis al-Sharia are advisory organs.

The government’s problem.

The system of organization of executive bodies:

• The executive assistant of the department is appointed by the chief vizier with the consent of the caliph from among the majority of Islamic parties in the Majlis and is responsible to the Majlis.
• The acting minister is “appointed” until the Day of Judgment, the only criterion for evaluation is Allah on the Day of Judgment.
• Amir of the department — appointed by the chief vizier with the consent of the caliph from among the civil servants and he is responsible to the caliph.

According to classical Islamic political and legal doctrine, the caliph or imam does not have a government as a collegial body of executive power. The government is an unnecessary barrier between the grand vizier as head of the chancery and the viziers or executive assistants (heads) of departments. The heads report directly to him. While this institution is not fully recognized in Islamic government doctrine, in practice it has been definitively established as the body heading the executive branch or the sphere of executive affairs.

5. SHARIA JUDICIAL SYSTEM.

Hisba.

         Europe knows the court as a body for conflict resolution, and Islamic political and legal doctrine has substantiated the administrative method of resolving conflicts, including human rights conflicts. Contemporary Muslim political life recognizes such an institution as the Complaints Office, which submits conflict materials for resolution by the head of state. The Hisbah, on the other hand, is an interdepartmental body for the administrative resolution of legal disputes.

Signs of hisba:

• Government authority,
• Interdepartmental body,
• The final authority for resolving administrative conflicts within its competence,
• The police morality watchdog,
• Includes a system of administrative judicial tribunals.

The Hisbah comprises the Chief Muhtasib, the provincial muhtasibs, the Appellate Board of Muhtasibs, the Morality Police, and the judicial administrative tribunals. Thus, the Hisbah has a tripartite structure of muhtasibs, police, and the court.

The Chief Muhtasib has the authority to review disputes between departments and make binding decisions, with the exception of decisions regarding government activities. Parties may appeal the Muhtasib’s decision to the Appellate Board of Muhtasibs, whose decision is final. The Chief Muhtasib oversees the morality police, and the provincial muhtasibs oversee its territorial divisions.

         The Hisba system includes judicial administrative tribunals as judicial bodies that hear disputes involving the state and citizens. These judicial administrative tribunals include the Supreme Administrative Tribunal and the Provincial Administrative Tribunals. Judges of the administrative tribunals are appointed and dismissed by the Supreme Judicial Shura of the state. In conclusion, it can be noted that the proposed institution will effectively fulfill its assigned tasks.

On the issue of the Supreme Judicial Shura.

First of all, regarding the status of the highest judicial body. It is a body of judicial authority and therefore embodies the principle of state power, the principle of state authority. However, it should not interfere with the self-governing bodies of the judicial community or with the organs of justice administration as such. A balance must be achieved.

         The question of a qadi of all qadis instead of the Supreme Judicial Shura is being raised. The qadi of all qadis would combine the functions of administering justice and heading the judiciary. In our view, this is not entirely appropriate. The Supreme Judicial Shura is the state’s administrative body for the judicial system, and the qadi of all qadis would combine such crucial functions. He would be physically unable to handle such a volume of work, and therefore, in reality, all decisions would be made by his office, which prepares documents. Besides, this body, in principle, dates back to the distant past, to the Muslim Middle Ages.

The head of the Judicial Authority of the Islamic Republic of Iran is appointed by the leader of the country (Rahbar) for a five-year term from among «mujtahids knowledgeable in judicial matters.» The head of the Judicial Collegium has the right to appoint and dismiss judges and propose legislative bills related to the judiciary. He or she is effectively independent of the other two branches of government—the executive and legislative—and is accountable only to the leader of the country. The Minister of Justice in the executive branch has administrative functions and does not play a significant judicial role.

It hardly makes sense to create a single body for the prosecutorial and judicial communities, especially since the prosecutor’s office is built entirely on subordination and centralization. At the same time, the judicial community is internally pluralistic and allows for broad self-governance.

Finally, regarding the question of who will head the Supreme Judicial Shura: the Qadi of all Qadis or the head of state. It seems that the position of Qadi of all Qadis, as the head of the judiciary, is inappropriate in the current context. The Supreme Judicial Shura should be headed by the head of state, as the highest official directing state policy in the administrative management of the judicial system.

The structure of the Sharia judicial system.

         The solution to this issue depends directly on the understanding of the essence of Sharia. If Sharia is understood as divine law, given in an unchangeable form, then the structure will be as follows. In this case, there will actually be two structures: one for Muslims and one for non-Muslims. For Muslims, the most likely arrangement is the Supreme Sharia Court, the Appellate District Sharia Court, and the primary (precinct) Sharia court (qadi). For non-Muslims, the Western European legal system and, accordingly , the judicial system. Typically, this includes the Supreme Criminal Court, district criminal courts, the Supreme Civil Court, and the Social and Labor Court.

         If Sharia is understood as a developing state law with general principles of operation, but manifesting itself in the diverse legal forms of Muslim states, then such a system may also be possible. A Constitutional Court as an Islamic constitutional justice body, a system of Sharia arbitration courts headed by the Supreme Sharia Arbitration Court, and a system of courts of general jurisdiction, including the Supreme Court and criminal and civil courts. Administrative Sharia tribunals as administrative justice bodies would most appropriately be included in the structure of hisba.

         In fact, the structure of the Sharia judicial system in the second case will be very similar to what we see in Western European countries, but perhaps something profoundly original will be created. In any case, the parallels will be obvious. In this case, Muslim countries will have to, to some extent, follow the path of the Western world, creatively reworking it.

         The most positive examples here are Germany’s experience in building a diverse judicial system and France’s experience in administrative justice. Russia’s experience in arbitration courts also appears to be sound. In any case, all this will enable Muslims to create a truly Islamic judicial system.

6. TERRITORIAL STRUCTURE (CALIPHATE).

The relationship of power between the Caliph and the Sultans.

         According to medieval Muslim thinkers, the first historical Caliphate was based on the interconnectedness of three elements: the caliph, the sultans, and the ulema. The latter acted as a corporate class, headed by the religious leader of all Muslims, the Sheikh ul-Islam. It was the agreement of these three political entities that underpinned the peace and tranquil development of the First Caliphate. This concept has not remained unchanged —times have changed, and so have its contents, but the foundations have not wavered.

         The Caliph represents the supreme authority in the Caliphate, while the Sultans are the heads of the Muslim lands—the Sultanates. These are different levels of power in the Second New Caliphate. While previously the Sultans headed all power in the Sultanates, now they are the executive branch, or is there still a government as the executive body? The Majlis (Mejlis) has also emerged as a Muslim parliament. The relationship between the Caliphs and the Sultans can be characterized as subordination to the laws within their respective jurisdictions, as established by the Basic Law of the Caliphate and subsequent laws of the state.

         The Caliph represents the Caliphate in international relations, the Sultans represent the Sultanates in their relations with the Caliph as rulers. The Walis represent the Vilayets in their relations with the Sultanates. And so on. This system is justified and appropriate for the functioning of the political institutions of the Caliphate.

         The Caliph is the highest authority in the Caliphate, and so is the Sultan, who decides on the country’s development. Naturally, the will of the Sultans and the Caliph must be harmonized, and the Caliph’s willpower alone won’t accomplish much. The question arises of a representative body for the Sultans, one that would include the Sultans ex officio. Such a body could be the Majlis al-Da’wa as the upper chamber of the Caliphate’s union parliament.

         This understanding of the relationship between the power of the caliph and the sultans is fully consistent with the Muslim historical worldview of power and allows us to approach the optimal point of interaction between all levels of power in the Caliphate.

Emiratiism.

         First, let’s define an emirate. An emirate is a federal district within a federal Islamic state, that is, an administrative-territorial unit created by the federal authorities to effectively govern the vilayets from the federal center. A vilayet is a province, an administrative-territorial unit created as a union of communities based on their historically diverse unity. A sultanate is an administrative-state unit within a possible future Second New Muslim Caliphate as an Islamic nation-state.

         The Emirate’s organs include the Emirate’s Emirate Council, the Shura Council, and the territorial offices of federal agencies. An Emirate must be a citizen of the Caliphate, over 35 years of age, possibly a non-Muslim in a Christian Emirate, or someone very close to Muslims, with a higher education and managerial experience.

         The Shura of the Emirate is composed of half the heads of the provinces and half the heads of the territorial services of federal agencies. The Shura of the Emirate is an advisory body to the Emir, discussing matters of public administration. The Emir himself determines the composition of the Shura, and he is responsible for any failure to implement the Shura’s recommendations.

         It is assumed that the emirate will coincide in territory with the sultanate for the convenience and clarity of state administration, and the emirate will not be divided into smaller units, unlike the sultanate, which includes vilayets, hakimiyats, and jamaats.

         An emirate may be established by decision of the Prime Minister or the Khalifa, and this decision is formalized in the form of a Nizam. A proposal to this effect may be made by the Majlis al-Amir or the Prime Minister. The main criteria for establishing an emirate may include a historical commonality of language, culture, religion, and so on. A single sultanate may encompass the territory of several emirates, but emirates must not include the territory of two or more different sultanates.