Genealogies of Sovereignty in Islamic Political Theology Andrew F.

March Yale University

Behold, thy Lord said to the angels: I will create a vicegerent [khalifa (caliph)] on earth. They said: Wilt Thou place therein one who will make mischief therein and shed blood?- whilst we do celebrate Thy praises and glorify Thy holy (name)? He said: I know what ye know not. Quran, 2:30

The discourse known in contemporary Western scholarship by the moniker political theology is largely an exercise in revelation. As a claim, political theology is the assertion that certain concepts, gaps and aspirations immanent in Western political theory are transferred from theology either in the form of presence or of absence.1 We take certain concepts to be archetypically secular and this-worldlymost famously, sovereigntybut we can discern their origins in the theological imagination. Or, perhaps, we suffer from an anxiety about our ability to account for certain goodsultimate foundations, the telos of history, moral motivationthat is readily explained as a trauma of loss of things we imagine to have had in some previous, theologically-infused, era. We are aware that they are missing, and we miss them. As a field of inquiry, political theology is a call to explore the symbolic dimension of politics, the crypto-theological origins of political concepts and practices, or the ways in which certain political practicesviolent ones in particularcome to have meaning for us and other ones do not.2 The most obvious condition of possibility for this discourse is the presumption that we live in a secular world. Political theology is revelatory in this mundane senseit seeks to reveal aspects of our contemporary, pseudo-secular condition that are opaque to us. In this sense, it is something of a misnomer, which itself is perhaps another symptom of the kind of forgetting that it seeks to undo. For there is often little logos in political theology, indeed, very little theos. Political theology traffics in analogies, symbols and imputations of meaning. It does not traffic very much in formal theology. This makes sense, since political theology as a claim and field of inquiry is a critical practice. If modern political theory and practice itself expounded at length on its own theological origins and assumptions, there would be nothing critical about political theology. By contrast, the analogous critical move in explicitly theistic political cultures is to uncover
1

In Schmitt, political theology is not only a practice, a way in which one can choose to think about politics, but also a claim about the world. All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. (Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, George Schwab, trans., (Chicago: University of Chicago Press, 2006), p. 36.) 2 Paul Kahn (Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011)) tends to treat political theology as both a set of claims about the world and also as a roving kind of practice of searching for meaning in political relationships on the supposition that political life is infused with certain theological associations, particularly sacrifice. E.g.: political theology [is] a form of inquiry begins where law ends; (2) political theology understands politics as an organization of everyday life founded on an imagination of the sacred; (23) and if we approach our political practices and beliefs as culture, then we must ask about the nature and structure of the meanings it sustains for believers. To take up this inquiry is to turn to political theology (120-1).

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the secular, the mundane and the human underneath what explicitly travels as the sacred or the theological. Political theology is an intrinsically comparative practice, but this basic feature of its practice in the West needs to be borne in mind. In other contexts, the Islamic world in particular, the relation of the manifest and the concealed is reversed. The age of secularism as a call and a discourse of legitimation is (long) over. The temptation is reversedpraetorian dictatorships adopt constitutions that declare Islam to be the state religion and sharia to be a/the source of law. The critical move, albeit not a very challenging one, is to impute secularity to what travels as the sacred. So, for example, since all divine law needs to be articulated, interpreted and organized by humans, it has been claimed that there is no such thing as divine sovereignty or the rule of Gods law. Moreover, since the temptation to present what is human as divine is so overwhelming, and the dangers when this temptation is present so singular, Muslims ought to simply embrace secular constitutionalism and save the sacred from politics.3 That is not the direction I intend to take this paper, although I do want to bring the theological back into political theology. Instead, I want to present a schematic map of the main paths that have been opened up in modern Islamic political thought towards that most coveted object for all political theologies in the Abrahamic traditionsovereignty. This inquiry is not only particularly urgent, but also newly exciting, in light of the past two years in the Middle East. For the events that hastily came to be called The Arab Spring have done much to reopen the question of what it means for a Muslim society to be ruled legitimately. While it is yet possible that Egypt and Tunisia, the countries where non-violent and popular revolutions were followed by victories at the polls by Islamist parties of some kind, could devolve back into anti-political praetorian dictatorships with a pious-populist face, the road to such dictatorships will have been paved with an awful lot of antiauthoritarian, pro-democratic theologizing. The rhetorical ambiguities and ambivalences of recent Muslim Brotherhood and moderate Islamist political thought are often taken as signs of duplicity and tactical double-speak. But they are also just thatsigns of ambiguities and ambivalences inherent to a political theology that proclaims both monism and pluralism, both divine and popular sovereignty. What it means to be ruled by Gods law is no longer known, and the longer the revolutionary and constitutive moment lasts without a single entity seizing absolute power, the more the idea of a civil state4 will have to be given concrete religious and political content. In this sense, the Arab Spring has brought the political back into political Islam and brought Islamic political thought back into history. Origins Islamic political history is replete with beginnings. There, are, of course those events in the (Lefortian-Deleuzian) theological sense of the term: the uncaused,
3

This argument is central to Abdullahi An-Naim, Islam and the Secular State: Negotiating the Future of Sharia (Cambridge, MA: Harvard University Press, 2010)). 4 On this phrase as an alternative to secular state in Egyptian public discourse, see Talal Asad, Fear and the Ruptured State: Reflections on Egypt after Mubarak, Social Research (suppl. Special Issue: Egypt in Transition) 79. 2 (Summer 2012), pp. 271-298, at pp. 289-91.

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unpredictable revelation of the Quran to Muhammad and the various miraculous episodes of his biography. There is also the paradigmatic political founding moment: the migration to Medina (the hijra), which symbolizes the Islamic ideal of joining (if not fusing) political, juridical, military and sacred power through a combination of charismatic and contractual authority. It is, of course, this political beginning, rather than the Prophets birth, death or first revelation from God, that literally marks the beginning of the Islamic erayear 0 in the Muslim calendar. In addition to the normative precedent established by Muhammad in Medina, often simplified as the injunction for Muslim societies to fuse religion and state (din wa dawla), the Prophets career also symbolizes the expectation of worldly success. Just as Islam rejects the myth of original sin, replacing it with a more dualistic conception of human nature,5 the biography of the Prophet does away with the myth of the political as an inherently fallen sphere of human activity. If unjust, tyrannical rulers are still to be expected in this world, their existence has religious meaning more as a constant occasion to test the believers patience or their will to correct their mortal rulers, rather than as an occasion for meditation on the theological and spiritual drama of living in a fallen world. But if there is an event that is uniquely foundational in the sense of providing Islam with its historical drama and core intellectual puzzle, its originating trauma, it might be located some forty years later with the assassination of Ali, the prophets cousin and son-in-law, and the Muslim communitys fourth successor (Caliph) to Muhammad. The assassination of Ali represents, in the first place, the loss of Muslim unity and religiously-inspired leadership. From that point on, both unity of the community and unity of political and religious authority were to be an elusive object of pursuit, rather than a communal inheritance from the Prophet to be lovingly preserved. Even Sunni thinkers often herald Ali not only per tradition as the fourth Rightly-Guided Caliph but as the one who should have been elected as the third caliph and thus often present the election of Uthman, still the third Right-Guided Caliph, as a tragedy.6 However, this is not the primary sense in which I mean to propose Alis assassination as a foundational moment for Islamic political theology. For, while the Sunni-Shiite split that we are familiar with today did not originate contemporaneously with the assassinations of Uthman and Ali and the first civil war (fitna), Ali was indeed killed for an idea. As is well known even to non-experts, Ali agreed to an arbitration with his opponent in the first civil war (656-661) Muawiyya (the kinsman of the assassinated Uthman and himself the founder of the Umayyad dynasty) on the field of Siffin in northern Mesopotamia. A group of Alis own partisans, later known as the Kharijites (those who go out), found this submission to human authority and discretion abominable. Rather, following the Quran, they held that there is no rule but Gods (la hukma ila lillah), and even Alis own authority as the rightful Imam of the Muslim

In some modern Islamic writings, a quasi-Rousseauvian idea of a naturally good innate human self (fitra) that is corrupted only in society is advanced as part of the apologia for governing societies according to divine law. See Andrew F. March, Taking People as They Are: Islam as a Realistic Utopia in the Political Theory of Sayyid Qutb, American Political Science Review, Vol. 104, No. 1 (February 2010), pp. 189-207. 6 Sayyid Qutb saw the succession of Uthman ahead of Ali as a tragedy that doomed the early Muslim community to tyranny and corruption. (See March, Taking People as They Are: Islam as a Realistic Utopia in the Political Theory of Sayyid Qutb, p. 204.)

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community could not supersede it. In the name of Alis right to obedience by the entire Muslim community, these partisans of Ali killed Ali himself. It is this paradox, and the attendant set of questions, that I want to identify as the beginning of Islamic political history. I mean this in the sense of some very specific meanings that each word implies. Alis assassination was the beginning of Islamic political history: unlike the partisans of Muawiyya who fought for their kinship rights or for a very basic idea of Uthmans constitutional legitimacy, the Kharijites unleashed a politico-moral problem on the Muslim community. What is divine sovereignty? What does it mean for God alone to rule? How can the sacral community uphold both the obligation to obey the Imam of Guidance7 even unto death and the obligation to obey only God through His Law? If the community must have, not only for political but also for salvific purposes, the right Imam of Guidance, but that man is bound by the Law, who then decides what the Law is and when it has been violated? Answering these questions, it is little exaggeration to say, was the early Islamic public sphere. Moreover, Alis assassination was the beginning of Islamic political history: every revolt in the first two centuries of Islam (and even beyond) was launched in one way or another in response to the illegitimate turn taken at the end of the first civil war. The failure of Ali to consolidate political power closed the door forever on Muslim unity and on the occupation of the office of Caliph by a man universally recognized as both legitimate and just. The gradual and dialectical resolutions of the theologico-political problem in both Sunni and Shiite doctrine, inadequate and unstable in their own way, were delayed responses to the events around Alis assassination. It has often been noted that Kharijite political theology represents a time capsule of early Islamic ideals that were impossible to sustain in a rapidly expanding empire but which nonetheless express certain enduring moral aspirations. The Kharijites combined at once the most democratic, meritocratic and theocratic strands of early Islam. Unlike the later Sunnis, who held that the Imam must come from the Prophets tribe (the Quraysh), for the Kharijites any pious Muslim man (famously, even an Ethiopian [freed] slave with a head like a raisin) can be the Imam on the basis of merit. Also unlike the Umayyads and the later Sunnis, who were content to treat the electoral component of the office as a legal fiction, the Kharijites insisted on strict electoral conditions; some even held that all Muslims must elect the Imam unanimously. Some Kharijites even claimed (centuries ahead of their time) that the Imamate was not necessary if the ultimate judgment of piety and justice reposed in the community of Muslims. The core Kharijite doctrine rested on a paradox, however: the Imam is a figure of unity and guidance and getting this right is important enough to fight over; yet, what constitutes guidance and piety has already been revealed by God and the Muslim community is capable of judging piety, morality and justice for itself. Kharijite political theology is thus a kind of anarchic, theocratic absolutism. This paradox rendered it useless as a practical doctrine of legitimate governance for an expanding empire, but Kharijism remains important as a representation of certain ideals of governance as submission to God alone mediated only by a revealed law, with
7

Early Muslims viewed the Imam not only as a political leader but as a comprehensive, all-purpose Imam of Guidance (Imam al-huda), who gave them their legal existence and led them in both worldly and spiritual matters. On this, see Patricia Crone, Gods Rule: Six Centuries of Medieval Islamic Political Thought (New York: Columbia University Press, 2004), pp. 21-23.

minimal human agency beyond these limits. But, more importantly, that these questions remain a problem for Muslimshow should sovereignty be conceived, on whom does it devolve, what are its limits, where is foundis a contingent, non-necessary historical legacy, one I am arguing can be traced back as much to the Kharijite assassination of Ali as to the normative precedent established by Muhammads fusion of the political and the religious. Things could have been different than they were and are. Maturity The Sunni view of things took a few centuries to work itself out. At the beginning, all Muslims cared deeply about the figure and the office of the Imam. The victors in the first civil war, Muawiyya and the Umayyad dynasty he founded (661-750), referred to themselves as Gods Caliphs (rather than the Caliphs of the Messenger of God) and frequently enunciated their power in messianic terms.8 The Abbasids came to power as scions of the Prophets tribe in the name of a wider kind of Shiism, and were backed by many troops who endorsed extremist (ghuluw) doctrines of the sacral, supernatural properties of the Caliph. An early Persian-speaking minister of the new dynasty (Ibn al-Muqaffa) he counseled the new Caliph to assert the authority to decree both creed and sacred law. For reasons that are still not clear, that Caliph rebuffed Ibn alMuqaffa, although some of his descendants a few decades later were to make one final, failed effort to assert the Caliphs right to settle authoritatively at least some matters of creed. Thus, what some recent scholars have (following Schmitt) identified as the archetypical feature of sovereignty within a voluntarist-theistic metaphysicsthe personalistic assumption of God-like sovereign power, including the power to create and suspend the law, the power of life and death, and the power to mark the boundary between civil society and the state of wardid not immediately retreat in Sunni Islam. Indeed, even mature Sunni constitutional theory (from the 10th century on) speaks about the state only by speaking about the office of the Imamate. The first theologicojuridical question posed by Sunni jurists is Is the Imamate religiously obligatory? and the second question is Is this known through reason, revelation, or both?9 They meant both the office of Successor (Caliph) to the Messenger of God and the sovereign state as such. Similarly, when certain isolated 8th and 9th century Muslims first denied that the Imamate was a religious obligation,10 they meant not just the exalted office of the
8

See Patricia Crone and Martin Hinds, Gods Caliph: Religious Authority in the First Centuries of Islam (Cambridge, UK: Cambridge University Press, 1986) and Aziz al-Azmeh, Muslim Kingship: Power and the Sacred in Muslim, Christian and Pagan Polities (London: I.B. Tauris, 1997). 9 The most famous work of pre-modern Islamic constitutional law, Mawardis, al-Ahkam al-Sultaniyya [The Rules of Governance] begins with this passage: The Imamate is ordained as the successor (khilafa) of the prophecy in upholding the faith and managing the affairs of the world. Its establishment is unanimously considered to be obligatory on the Community, al-Asamm being the sole dissenter. There is disagreement as to whether the obligation is derived from reason or revelation. (Abu al-Hasan al-Mawardi, al-Ahkam alSultaniyya, from Yusuf Ibish and Yasushi Kusuji, eds., Qiraat fil-fikr al-siyasi al-islami (Beirut: Dar Amwaj, 2000), p. 120.) See also the English translation by Wafaa H. Wahba, The Ordinances of Government (Reading, UK: Garnet Publishing, 1996). Mawardis dates are 974-1058 CE (364-450 AH). 10 Such as al-Asamm (d. 817/8) referred to by Mawardi. But this phenomenon was actually slightly more widespread than this one figure. Al-Asamm was part of a small circle of rationalist theologians (Mutazilites) in 8th and 9th century Basra to question the necessity of the Imamate. There was also a small

legitimate Imam of Guidance to whom all obedience would be rendered as a religious obligation, but also the structures of the coercive state extending over anything larger than small, face-to-face communities of Muslims. Nonetheless, this personalistic, quasi-charismatic figure of power and authority was to recede relatively rapidly for Sunni Muslims, both because of realpolitik (the Abbasid caliphs lost all actual coercive power by the end of the 9th century) and because of the evolution of Sunni conceptions of where religious knowledge and authority was located. The continuity of his office represented the unity and sovereignty of the religiopolitical community and the legitimacy of its institutions, but knowledge of right religion and the execution of its rulings were dispersed throughout the community (the umma) and its true representatives, the scholars. Eventually, when the Caliph was no longer even a symbol of effective, coercive power, the office of the Caliph in mature Sunni political theology looked not like a Caesar, a Pope, or a Hobbesian sovereign, but like the latterday British monarch. He reigned, but did not rule. Mature Sunni political theology (from the 10th century on) was, thus, in essence constitutional theory.11 Sunni jurists and theologians were primarily interested in three projects: first, clarifying the source of the rulers authority; two, elaborating the ideal qualifications of the ruler and his legal rights and obligations in such a way that they would seem both aspirational and realistic; and, three, finding ad hoc, practical ways to redescribe the actual political world so that even these realistic, non-utopian legitimacy conditions were not violated. As to the source of sovereignty, there are two questions: what is the source of the authority and legitimacy of the office of the Imamate, and what is the source of the legitimacy of any particular Imam? As noted above, the necessity for the office was argued to be derived from both reason and revelation. Reason could demonstrate both mans natural sociability and his tendency towards social conflict in the absence of a coercive authority figure. However, reason alone could not establish the necessity of a religious office like the Imamate. And, as noted by Mawardi, the presence of even small pockets of dissent about the necessity of the Imamate meant that the scriptural foundations for the office had to be given. On the general obligation of Muslims to obey their rulers, scholars pointed to Quran 4:59: Oh you who believe! Obey God, the Messenger and those of you in authority. But this did not mention any specific office and, indeed, the scholars were in time to argue that those of you in authority referred, at least partially, to them as the guardians of Gods law. Thus, Sunni jurists gradually came to argue from two other sources of revelation: hadith reports of the Prophet Muhammad speaking and the unanimous, infallible consensus (ijma) of the early Muslim community who, after all, instituted the office immediately after the Prophets death and took it seriously enough as

community of Kharijites who survived the civil wars (the Najdiyya Kharijites) who rejected the necessity of the office. (See Patricia Crone, A Statement by the Najdiyya Kharijites on the Dispensability of the Imamate, Studia Islamica, No. 88 (1998), pp. 55-76; and Ninth-Century Muslim Anarchists, Past and Present, no. 167 (2000), pp. 3-28.) 11 The major figures here are al-Baqillani (d. 403/1013), al-Baghdadi (d. 429/1037), Abu Yala Ibn alFarra (d. 458/1065), al-Mawardi (d. 450/1058), ! al-Juwayni (d. 478/1085) and al-Ghazali (d. 505/1111).

a religious matter to go to war over.12 Finally, there were combined rational and revelatory arguments: certain things are manifestly required by revelation and can only be effectively and legitimately realized by a communal leader. If the Imamate was necessary, how did one come to occupy this exalted office? For early Muslims and later Sunnis, the Imamate was a form of contract (aqd) with the community, validated through election (ikhtiyar) by a council of those who loose and bind (ahl al-hall wal-aqd) and affirmed through the public rendering of an oath of loyalty (baya). This, importantly, is largely derived from Prophetic precedent. For all that Webers notion of charismatic authority captures much of what the earliest followers of Muhammad must have experienced,13 Muhammads career as a statesman is noteworthy for the extent to which he grounded his own authority on specific contracts and oaths of loyalty with new groups of Muslims, and even affiliates who did not enter Islam. Even if the office is divinely ordained, and if even a jurist like Mawardi can write that God has appointed for the community of believers a leader to succeed the Prophet and protect his creed and has entrusted him with the conduct of policy so that the management of affairs may be undertaken in the light of the true faith, the source of legitimacy of any claimant to the office was the Muslim community. This fusion of divine and popular sovereignty is the source of energy, and also animating tension, in modern Islamic thought as well, as I argue below. The electoral quality of the Sunni Imamate was, of course, a legal and theological fiction, meant to keep theory in line with precedent and to distinguish Sunni doctrine from the Shiite one, which held that the Imamate is held strictly by designation (nass) from a preceding Imam. Not only did the Imamate devolve into dynastic rule in practice, but the jurists themselves came to recognize Caliphal designation of a successor (istikhlaf) as a legitimate practice. Nonetheless, the jurists continued to take the constitutional quality of the office seriously, and they elaborated qualifications for the Imamate long after the office had become hereditary. Mawardi lists seven conditions of eligibility: justice or probity (adala), knowledge conducive to good judgment in statecraft, soundness of hearing, speech and vision, physical fitness and freedom from handicaps, prudence in moral and practical judgment, courage in defense of the umma against its enemies, and Qurayshi descent from any branch. A suitable Imam should possess significant religious legal knowledge, ideally so as to be able to adjudicate between senior scholars. Broadly speaking, he was supposed to be the most meritorious man of his time (al-afdal), but his talents were emphatically human rather than supernatural. He was not infallible (masum), and the presence of a superior candidate did not justify deposing a sitting Imam who was sufficiently meritorious (mafdul).

12

In mature Islamic legal theory, the unanimous consensus (ijma) of the community on a point of law where unambiguous, perspicuous texts of the Quran or hadith are lacking is a fully authoritative source of law, albeit a rare one. 13 The holder of charisma demands obedience by virtue of his mission. His charismatic claim breaks down if his mission is not recognized by those to whom he feels he has been sent. If they recognize him, he is their master so long as he knows how to maintain recognition through proving himself. But he does not derive his right from their will the reverse holds: it is the duty of those to whom he addresses his mission to recognize him as their charismatically qualified leader. (Max Weber, The Sociology of Charismatic Authority, in S.N. Eisenstadt, ed., Max Weber on Charisma and Institution Building (Chicago: University of Chicago Press, 1968), p. 20.)

While the norm was for actual power to be held by sultans with little regard for the niceties of the law, the constitutional regime held so long as those sultans were content to act merely avariciously and tyrannicallythat is, so long as they showed little interest in influencing Muslim creedal commitments. A ruler who usurped power in the name of his own tribal pride or ambition could be tolerated and domesticated by the scholars and the tradition they curated and embodied. A ruler who usurped it in the name of some rival sectarian vision was an existential enemy if he used worldly power to transform the religion of his subjects (for example, the Fatimid Ismailis who ruled Egypt and most of North Africa from 9691171 and who figured, rather than the tamer Twelver, Imami Shiites, as the main object of suspicion and fear for Sunni Muslims in the 10th12th centuries). For our purposes here, the assumption underlying this approach to the theologicopolitical problem was that a Muslim society is ruled not primarily by a king but by the Law. Wide swaths of the sacred law tended to be of vanishingly little interest to secular sultans (marriage, contracts, sales, matters of worship) and thus tended to be safe from the vicissitudes of political turmoil. Those aspects of public life that a sultan might take an interest inprotecting right religion, taxation, executing punishments, preserving public morality and equity in the marketplace14had rules derived from the sharia that the scholars expected new usurping rulers to respect. A ruler was legitimate and worthy of obedience, then, to the extent that he obeyed and executed the Law, a Law that predated him and that he had limited authority to change, replace or interpret. Intriguingly, then, the real resonance of Schmitts interest in political theology within pre-modern Islam is less the presence of a sovereign Caliph dispensing justice, representing God on earth and bestriding the boundary between law and war, and more that many pre-modern Muslims (as remains the case today) harbored the vision that the human, the personal and the arbitrary could be domesticated in political life in the name of the rule of law. This was, of course, the neo-Kantian liberal fantasy that Schmitt saw himself to be demystifying. So does Schmitts critique of liberalism as articulated in Political Theology apply equally to pre-modern Sunni Islam? Would it have been a scandal to remind Sunni Muslims after the 9th century that they are not just ruled by God and His Law, but by men, not just by reason, but by will? Sunni jurists of the mature period seem not to have been bothered by the awareness of this fact, although I believe that this paradox of the rule of law does plague certain modern Islamist visions. First, the entire edifice of Islamic law (legal theory, positive law, the social application of the law) was predicated on awareness of human

14

Mawardis treatise includes the follow areas of governance that were of interest to both the sharia and the rulers: ministerial appointment, appointment of provincial governors, appointing war commanders, appointing commanders of expeditions for the public interest, appointment of judges, redress of wrongs, the syndics for the nobility, appointment of prayer leaders, administration of the pilgrimage, administration of alms, dividing war booty and other limited taxes, land reclamation and water supply, enclosures and public amenities, land grants and concessions, crimes and punishments, and the market supervisors office (from the table of contents to the Wahba translation). Needless to say, apart from the problem of a de facto authority with some theological, sectarian or intra-Sunni ritual commitments at odds with those of the scholars and population of his realm, the primary area of moral and legal conflict was property and taxation.

fallibility and the legitimacy of reasonable disagreement in many areas of the law.15 The rule of law was very much seen as a personal, human and fallible enterprise even at the level of theory and doctrine, and judicial discretion in the realm of enforcement and application was not only acknowledged, but also seen as a key facet of the independence of the law from the rulers. The jurists were not embarrassed by their own activity in discovering, interpreting, applying and suspending Gods law. An oft-quoted statement by the 14th century scholar Ibn al-Qayyim (12921350 C.E./691751 A.H.) not only encapsulates the law-centered vision of Sunni constitutional theory but also contains a startling account of the scholars as the ultimate source of political sovereignty:
Properly speaking the rulers are obeyed [only to the extent] that their commands are consistent with the religious sciences. Hence, the duty to obey them derives from the duty to obey the jurists. Obedience is due only in what is good and what is required by the religious sciences. Since the duty to obey the jurists is derived from the duty to obey the Prophet, then the duty to obey the rulers is derived from the duty to obey the jurists. Furthermore, since Islam is protected and upheld by the rulers and the jurists alike, this 16 means that the laity must follow these two.

Ibn al-Qayyims statement is an example of a vision of the law as the ultimate source of legitimacy in a world where it was assumed that all coercive power would be de facto, power seized by some sultan or another. The only constant in this were the jurists, the guardians of the law and they thus figured as the permanent representatives of both God and the people. But mature, especially after the Mongol destruction of even the symbolic fiction of the Abbasid caliphate (1258), Islamic political theory accommodated the personal nature of political sovereignty in another important way. Briefly, many jurists after the 13th century were eager to keep political life within a sharia-based normative framework. The jurists strategy was two-fold: first, to try and induce de facto rulers to comport with the sharia and thus acquire a dimension of legitimacy beyond mere Hobbsian right, and also, more interestingly, to carve out large spheres of discretionary authority for rulers, governors, ministers, generals and other executive officers that were not regulated by detailed prescriptive norms formulated by the jurists but were still within the larger canopy of sharia because of their conformity with the looser standards of public welfare (salus populi). This genre of writing about God, sovereignty and politics, known as siyasa shariiyya (roughtly: religiously-legitimate governance), stipulated a sort of condominium of authority whereby scholars apply their understanding of Gods
15

On this basic feature of (particularly Sunni) Islamic law, see Khaled Abou El Fadl, Speaking in God's Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001); Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge, UK: Cambridge University Press. 1997); Baber Johansen, Contingency in Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1998); Mohammed Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge, UK: Islamic Texts Society, 2005) and Bernard G. Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998). 16 Ibn Qayyim al-Jawziyya, A!lam al-muwaqqi!in !an rabb al-!alam"n (Beirut: Dar al-Jil, 1973), vol. 1, p. 10. See also, Khaled Abou El Fadl, The Centrality of Shariah to Government and Constitutionalism in Islam, in Rainer Grote and Tilmann J. Rder, Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford: Oxford University Press, 2012), pp. 35-62.

law in the civil realm fully independently from the secular rulers and the secular rulers in turn enjoy a certain space to exercise temporally bound powers of command beyond the strict letter of the law. The key figures here are the Syrian Taqi al-Din Ibn Taymiyya (12631328 C.E./661728 A.H.) and his student, the above-quoted Ibn Qayyim alJawziyya. Their doctrines have, if anything, been even more influential in the 20th century than they were in their own time, as we will see below. What is important to note here before turning to the modern context is that for centuries legitimate Islamic rule accommodated multiple sources of law, both the religious law of the jurists (fiqh) derived from the textual sources of revelation and the secular law of the rulers, often referred to as siyasa or qanun. Nonetheless, if the broader idea of divine law is defined in such a way as to include both the extrapolitical, textually-derived doctrines of the jurists (what most think of as sharia) and the realm of discretion and judgment in politics as long as it is constrained by religious goals and departs from religious morality in the least possible amount, then the rule of Gods law can practically be said to always be in force under just Muslim rulers.17 Modernity This exceptionally brief summary of pre-modern Islamic political theology should at least suffice to show why modern Muslims are bequeathed a collection of concepts related to sovereignty, rather than a single model fit for emulation or recovery. First is, of course, the idea of divine sovereignty as the arch-legitimating principle of all action, private and public. How is God to be sovereign on Earth, though, apart from his own direction intervention in the world? Even the career of the Prophet Muhammad suggests two sources of political authority: designation by God, as revealed in the Quran, of Muhammad as one to be obeyed as Gods Messenger, and the voluntary agreement of his followers to swear loyalty to him through the baya. For the earliest Muslims, the source of a rulers political sovereignty was his election by a council representing the people as a whole. God was sovereign on Earth insofar as his community had validly selected a leader to guide them in accordance with his revealed message. Later, Gods will was to be embodied not in the person of the Imam but in the corpus of the law. Divine sovereignty was a function of the extent to which political rulers applied his law. But this opens up new sources of sovereignty. The class of scholars came to represent both God and the people, insofar as the popular will of the umma could only be to be ruled by Gods law and Gods law was only known through texts that required expert knowledge to master. Yet the scholars did not rule in their own right. Nor did the people enjoy even a symbolic role in electing the Imam through their elite representatives, the people who loose and bind. Rulers came to power through conquests and thus their own will and capacity were sources of political sovereignty. In this final section, I will introduce three models of sovereignty representing modern Muslims attempts to reconcile the ideals of divine and popular sovereignty. Two of these are embodied in actual states and their official discourses of sovereignty, while
17

On this tradition of political writing, see Baber Johansen, An Perfect Law in an Imperfect Society: Ibn Taymiyyas Concept of Governance in the Name of the Sacred Law, in Peri Bearman, Wolfhart Heinrichs and Bernard G. Weiss (eds.), The Law Applied: Contextualizing the Islamic Sharia (New York: I. B. Tauris, 2008), pp. 259-294 and

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the third is a purely theoretical attempt to theorize the relationship between divine sovereignty and democratic authority. Saudi Arabia: Gods Sovereignty in Condominium It has been argued that the late medieval Islamic model of rule briefly introduced above, the siyasa shariiyya model whereby scholars apply their understanding of Gods law in the civil realm fully independently from the secular rulers and the secular rulers in turn enjoy a certain space to exercise temporarily bound powers of command, is most closely represented in the modern world by the Kingdom of Saudi Arabia.18 As is well known, power in Saudi Arabia is divided between a class of religious scholars and the Al Saud family. The class of scholars in this case are bound by a rigorous understanding of Islamic creed and legal doctrine, based on a zealous form of reliance on revelation (the Quran and the Prophetic sunna), resuscitated in the 18th century by religious reformer Muhammad Ibn Abd al-Wahhab. This school (Wahhabism to outsiders, Salafism internally) is characterized by its obsessive preoccupation with expurgating any conceivable departure from the strictest monotheism in Muslim belief and practice, such as venerating the graves of revered ancestors (including that of the Prophet Muhammad himself) or looking to any sources of moral and epistemic authority outside of revelation. Like many Christian protestant-reformist movements, it insists on forming creedal and legal doctrines to the greatest possible extent on the basis of revelatory texts, followed by the recorded original understand of revelation by the first generation of Muslims (the salaf) and then a narrower genealogy of righteous forbearers, most notably Ahmad ibn Hanbal (780855 C.E./164241 A.H.) and Ibn Taymiyya. As such, an insistence on the strictest possible acknowledgement of the sovereignty of God in worldly affairs is characteristic of Salafi political theology. The Saudi Basic Law of 1992, to be sure a political compromise weighted in favor of the King, declares that the Kingdoms constitution [dustur] is the Book of God and the Sunna of His Prophet, (Art. 1) and that government [al-hukm] derives its authority [sulta] from the Book of God and the Sunna of His Prophet, the two of which are sovereign [hakiman] over this law [nizam] and all other state laws.19 The Basic Law itself is in a familiarly paradoxical position. Where is the legitimate exercise of political sovereignty, including the Basic Law itself, thought to come from? The Basic Law is thus replete with references to its own limited authority and the existence of a prior, pre-political body of law (not just abstract, constitutive authority). The execution of property and labor rights (Art. 17), human rights (Art. 26), criminal punishments (Art. 38) and, indeed, all public policy [siyasa amma] is to be carried out in accordance with the Islamic sharia. The very function of the executive is defined as applying the sharia (Arts. 23; 55), which is left to the King but in its substance known by a separate class of authorities (the scholars). In their judicial capacity, these scholars are declared to be an independent authority [sulta] not subject to
18 19

Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000). Basic Law of Governance, Kingdom of Saudi Arabia. Note that, in keeping with the medieval siyasa shariiyya framework, any positive law enacted by the worldly power, including the Basic Law itself, is referred to as a nizam (pl.: anzima; lit.: order), in order to distinguish it, to its detriment, from laws derived from the sharia.

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any authority [sultan] other than the authority of the Islamic sharia (Art. 46). Legislative authority belongs formally to the King, but it is limited in scopejudicial authority is, in fact, the authority to legislate widely and to represent Gods sovereignty. There is an institutionalization of the traditional contractual component of the temporal rule (through the rendering of the baya), but the notion of popular participation in divine sovereignty is minimized. Executive power is, of course, hereditary (Art. 5) and any popular ratification of a new monarch occurs after the fact (Art. 6) and is perfunctory.20 The Kings authority is limited by the sharia, and while this means the religious scholars, all the official bodies of religious authority are appointed and dissolved by the King. Nowhere does the document mention the Muslim people as a source of sovereignty or political authority, as does, for example, the Constitution of the Hashemite Kingdom of Jordan, similarly a hereditary monarchy styling itself after Islamic tradition.21 In political practice, it would first appear that the King is the bearer of sovereignty in a Schmittian-realist sense, not to mention a Weberian one. The Basic Law refers three times to the Kings emergency powers and right to suspend the law (Art. 61, 62 and 82), and the King appoints to their judicial positions those scholars who ideally represent the pre-political legislative sovereignty of God. However, it is clear that as a normative matter at the very least, and a practical one to an indeterminate extent, the Saudi monarch can in no way be regarded a sovereign in the tradition of Bodin, Hobbes and Schmitt. Article 82 tries (although Schmitt reminds us of the futility of this22) to limit by law the extent to which the law itself can be suspended: No provision of this Law whatsoever may be suspended except on a temporary basis, such as in wartime or during the declaration of a state of emergency. Such a suspension shall be in accordance with the terms of the Law and may not violate Article 7, which reads: Government in the Kingdom of Saudi Arabia derives its authority from the Book of God and the Sunna of the Prophet (PBUH), which are the ultimate sources of reference for this Law and the other laws of the State. There is no doubt that the authority of this regime is, in its own account, not a function of its own will or divine designation, but of its fidelity to whatever is interpreted as Gods law. There is just as little doubt that, whatever public and private licenses the rulers of that Kingdom habitually take, they have made no effort to claim that their edicts represent the sharia. As a matter of historical and sociological fact, it is also clear that any such efforts on the Kings part to claim the right to pronounce on matters of divine law (fiqh) would certainly fail, and would likely provoke a crisis of legitimacy. It is hardly overly apologetic to claim that the Saudi model represents as close as possible an instantiation of the pre-modern siyasa shariyya ideal: a bifurcation of the representation
20

Article 6 simply states that the citizens give allegiance to the King on the basis of the Quran and the Sunna. The Arabic uses the present tense (as translated above), while the official English language translation of the Basic Law uses the future tense: citizens shall give the pledge of allegiance. (See Elie Podeh, The Baya: Modern Political Uses of Islamic Ritual in the Arab World, Die Welt des Islams, Vol. 50 (2012), pp. 117-152.) 21 Article 24. (i) The Nation is the source of all powers. (The Constitution of the Hashemite Kingdom of Jordan, Arab Law Quarterly, Vol. 7, No. 4 (1993), pp. 272-289.) 22 The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence to the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law. (Schmitt, Political Theology, 6.)

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and execution of Gods sovereignty into extensive social power held by the scholars and political-coercive power held by the rulers.23 Indeed, the confidence of the scholars in their own independent representation of divine sovereignty extends to the point that, despite the right of the King to formulate policies under the siyasa shariyya doctrine, the sharia courts of the kingdom refuse to enforce the [Kings] nizams. When confronted with a case arising under a nizam, the sharia court judge will do as he himself thinks right.24 One final issue. The Basic Law declares that Saudi Arabia is a hereditary monarchy; yet, what about the sovereignty of God through His law authorizes these particular rulers? What is the source of this familys derivative political sovereignty? As noted above, many pre-modern Islamic political theologians assumed (like, inter alia, Hobbes) that power would simply be seized or usurped. Short of an ideal founding election by the people who loose and bind, power would have to be transformed into sovereign authority through a new dynastys self-binding by Islamic law. This characterizes the attitude of many Wahhabi scholars toward their various alliances with the Al Saud family since 1745: the identity of the ruler is not particularly important since, as Ibn Abd al-Wahhab is reported to have declared, whoever gains power by force over a city or country has the legal status of the imam in all things.25 However, there appears to be a slight further twist in the Saudi-Wahhabi saga. While it is clear that legitimacy in the practical, sociological sense is a function of the royal familys on-going sponsorship of right religion and deference to the judgment of the scholars, the myth of an originating pact (baya) between Ibn Abd al-Wahhab and Ibn Saud remains part of the over-all apparatus of legitimation within the realm. Vogel writes that as part of his 18th revival movement, Ibn Abd al-Wahhab asked Ibn Saud to mount holy war for Islamic reform and offered him in return suzerainty over its conquests and that this compact, drawn up in 1158/1745 is still the basis for Saudi Arabian legitimacy.26 The relative importance of the procedural element in justifying political sovereignty should not be exaggerated; but even the myth of this founding contract reveals the element within Islamic political theology of the class of scholars themselves as a source of sovereignty, primarily as the permanent custodians of sharia, but also as people who loose and bind and may authorize a worldly ruler. The key to the traditional siyasa shariyya model, as exemplified by the modern Saudi arrangement, is that upholding a rigid ideal of divine sovereignty, or rule by Gods law, requires a restriction on the application of that sovereignty. The realm of a quasisecular public sphere serves as a kind of safety valve for the theological-juridical world of the scholars. They do not have to execute actual coercive authority or to enact policy on transitory temporal matters. And, most importantly, a buffer is maintained between the jurisdiction claimed by the religious law and the more discretionary acts taken by the secular authorities. Those discretionary policies and laws may be in an indirect sense authorized by the divine law, and thus belong in a broad sense to the sharia if they
23

Note the gloss of Ibn Taymiyya on the central Quranic verse on political authority (4:59: Obey God, the Messenger of God and those in authority.): Those in authority are of two types: the scholars and the rulers. (Ibn Taymiyya, al-Risala fil-hisba, translated by Muhtar Holland as Public Duties in Islam: The Institution of the Hisba, (Leicester, UK: The Islamic Foundation, p. 1983), p. 116. 24 Vogel, Islamic Law and Legal System, p. 175. 25 Ibid., p. 210. 26 Ibid., p. 207.

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remain within the boundaries set by the revelatory texts, but no single act or policy of the political realm asserts the kinds of claims to truth, textual authority or timelessness that the rulings, doctrines and judgments of the religious law do. Thus, the temporal world can function under the broad canopy of religious legitimacy without thereby tainting or compromising the sacred law. The alibi this gap provides for the sacred law against the failures of the political realm serves as a crucial guarantor of its continuous prestige and authority. Iran: The Sovereign Jurist A similar attitude of haughty distance from and indifference to the exercise of executive authority also characterized Shiite jurists during the Safavid and Qajar dynasties,27 despite certain theological problems not faced by Sunni scholars.28 However, the secularizing will of the Pahlavi Shahs meant that by the mid-20th century there was even less of a remnant of Islamic law in the Iranian legal system than there was in most of the modernizing, semi-secular Arab regimes. Combined with the greater, more formalized and more centralized authority held by the Shiite scholars than their Sunni counterparts, this meant that the Islamist rejection of the Pahlavi state would be total and would be lead by the scholars as a social group. In the theory of governance developed by Khomeini in the years before the revelation, there was an identical emphasis on the God as the sole source of sovereignty and the law as the sole embodiment or representation of Gods sovereignty. In Islamic Government, Khomeini wrote that the legislative power and competence to establish laws belongs exclusively to God Almighty. The Sacred Legislator of Islam is the sole legislative power.29 In Islam it is law alone that rules over society. (56) However, how does this lead to Khomeinis purely innovative doctrine of the governance of the jurist (vilayet-i faqih)? Khomeini gives two primary arguments for the direct, unmediated right of the supreme religious authority to claim supreme political authority. The first source of the practical, political sovereignty of the jurist is an argument from reason: since Islamic government is a government of law, knowledge of the law is necessary for the ruler. As we have seen, classical Sunni jurists also preferred that the ruler have extensive religious knowledge. However, Khomeini derives from the shared premise that Islamic rule is the rule of divine law a further conclusion: The ruler, however, must surpass all others in knowledge. Knowledge of the law and justice, then, constitute fundamental qualifications. Other matters have no importance or relevance in this connection.
27

See, for example, Roy Mottahedeh, The Mantle of the Prophet: Religion and Politics in Iran (Oxford: Oneworld, 1985), particularly chapter 6. 28 Briefly: the entire sphere of worldly authority in the absence of the true, infallible Imamwhose return Shiites awaitis problematic for Twelver Shiism. Twelver is, of course, a reference to the Twelfth infallible Imam in an unbroken line through Muhammad and Ali who vanished into occultation in the 10th century. In his absence, any kind of worldly authority is theologically problematic, which is not to say that the Shiite clergy did not arrive at pragmatic accommodations with worldly power along similar lines as the Sunni siyasa shariyya model. 29 Ruhollah al-Khomeini, Islamic Government, in Hamid Algar, ed. and trans., Islam and Revolution: Writings and Declarations of Imam Khomeini (Berkeley, CA: Mizan Press, 1981), p. 55. All further pagecitations from this source are in the body of the text.

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Reason also dictates [this], because Islamic government is a government of law. Since, as also argued by pre-modern Sunni jurists (e.g., Ibn al-Qayyim above), the ruler must submit to the jurist, asking him about the laws and ordinances of Islam in order to implement them, [then] the true rulers are the jurists themselves. (59-60) Khomeini takes the nomocratic and epistocratic assumptions of Sunni siyasa shariyya doctrines and cuts out the middleman between the scholars and the people. Of course, in doing so, he not only claims political authority for the scholars, but collapses the distinction insisted upon by the Sunni scholars between different kinds of knowledge. In his final twist, Khomeini collapses what for Sunnis would only be dispersed, collectively-held knowledge into a single figure: What if one of us becomes the foremost jurist of his age and is able to enforce his authority? Can there be any difference in the authority of the Most Noble Messenger, that of Ali and that of the jurist? (63) In addition to this argument from reason, however, Khomeini also gives a historical genealogy, amounting to an argument from revelation. The details are too obscure for present purposes, so briefly: Khomeini cites a series of hadith-reports attributed to both the Prophet Muhammad and various Shiite Imams that the scholars are the successors (caliphs) of the Prophet and the Imams after the Occultation. A statement attributed to the 7th Shiite Imam, the jurists are the fortresses of Islam, is interpreted by Khomeini to ascribe to the jurists the duty of being guardians of the beliefs, ordinances, and institutions of Islam, (73) which includes the penal codes, defense, social justice and taxation, without which walls of the fortress crumble. (74) The preservation of Islam [i.e., creating a state] is even more important than prayer (76) and all of the tasks entrusted to the prophets must also be fulfilled by the just jurists as a matter of duty. (78) Indeed, it is precisely because the just jurists have not had executive power that Islam has declined. (80) In essence, Khomeini takes traditional statements about the importance of the scholars as guardians of Islamic knowledge and piety to amount to a sort of Donation of Constantine whereby public authority belongs to the scholars as right. The comparison is even more apt when we consider not only the papal quality of traditional Shiite attitudes towards the infallible Imams, but also the monopolization of the scholars collective authority by a single most-learned jurist in Khomeinis doctrine. Thus, Khomeinis pre-revolutionary doctrine excludes the people as a source of sovereignty and political authority even more than the Sunni siyasa shariyya model and its modern Saudi embodiment. Khomeinis idea of Islamic government is purely constitutional, but not constitutional in the current sense of the word, i.e., based on the approval of laws in accordance with the opinion of the majority. (56) Popular consent as a pre-condition of legitimacy is not absent, though. Rather, it is immanent: The body of Islamic laws that exist in the Quran and the Sunna has been accepted by the Muslims and recognized by them as worthy of obedience. This consent and acceptance facilitates the task of government and makes it truly belong to the people. (56) In the actual 1979 Constitution of the Islamic Republic of Iran, things get slightly more complicated. The constitution largely follows Khomeinis conceptions of divine sovereignty and the direct succession of the jurist(s) to political authority. The constitution declares that the Islamic Republic is based on belief in the One God, His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands (Art 2) and that absolute sovereignty over the world and man belongs to God, and it is He who has

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made man master of his own social destiny. (Art 56) The concentration of actual power in the hands of the class of jurists is well-known: all judges must be clergy, all applied laws must be derived from or compatible with sharia, a Guardian Council (composed mostly of clergy) has a veto over legislation passed by the parliament and, of course, bestriding the entire system is the sovereign-like figure of the Supreme Leader with the ultimate right to decide on all legislation, policy and, paradigmatically, to decide on the exception. Importantly, the constitution declares that during the Occultation of the Lord of the Time [the Imam], the guardianship and leadership of the umma devolve upon the just and pious jurist. (Art 5) The people is not declared to be the actual source of the regimes legitimacy; rather, the regime itself was only endorsed by the people of Iran on the basis of their long-standing belief in the sovereignty of truth and Quranic justice. (Art 1) However, the people does not entire vanish, neither as an agent of political decision-making, nor as a source of legitimate authority. While the Supreme Leader is elected by a designated council (similar to the Vaticans College of Cardinals), the constitution seems to prefer that such a religious figure already be recognized and accepted by the majority of the people. (Preamble, Art 5, Art 107) Moreover, in practice, the people is given substantial input into the creation of those bodies that represent both the people and Gods sovereignty (hakimiyet). Not only does the people have a parliament (Islamic Consultative Assembly, from the Quranic concept of consultation (shura)), which it elects, but it also elects the President and the Assembly of Experts, which chooses each new Supreme Leader. This kernel of popular sovereignty enshrined by the Constitution is, of course, one font of the chronic legitimacy crisis faced by the Islamic Republic, most manifestly during the 2009-10 protests. But perhaps a greater source of this legitimacy crisis is more directly related to the fusion of all authority into one figure and the sacralization of the political. For, in fusing all kinds of social and political law-making into the same kind of sacred nomos, the political is not so much reclaimed for the sacred as the sacred is reduced to the political. It is a short step from the pre-revolutionary ideological claim that the state must be run by the sacred law to whatever the state requires for its defense, preservation and welfare is what the sacred law is. There is a world of difference between the claim that the political is authorized by the religious and the worldly rulers must be obeyed as a religious obligation and the claim that obedience to the law is like the daily prayer and fasting, and disobeying it is like disobeying the Islamic Sacred Law30 or Khomeinis notorious edict that Islamic government takes precedence over all else, even prayer, fasting and the pilgrimage to Mecca (i.e., the most basic personal religious obligations). The Hobbesian effect of secularizing religious law by sacralizing the political was clearly not the intention of those revolutionaries who sought to restore divine sovereignty where it had been usurped. However, given his scheme, Khomeini could only present the Guardian-Jurist as having no limits. Since he speaks for both the state and the sharia (unlike the Saudi King), the Supreme Leaders exceptions and innovations cannot be localized and characterized as mere public policy. Thus, given that Islam traditionally lacks a true Caesaropapist conception of divine sovereignty (especially Shiites in the absence of the Imam), it is noteworthy that
30

A statement by a Friday prayer leader, quoted in Said Arjomand, The Turban for the Crown: The Islamic Revolution in Iran (Oxford: Oxford University Press, 1988), p. 182.

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Irans present legitimation crisis is at least partially a function of the elimination of the traditional buffer created by siyasa shariyya models between religious authority and the vicissitudes and risks of political governance. This speaks to a certain cunning in the siyasa shariyya model and helps explain its widespread popularity within modern Islamic political theology. However, in recent years the notion of sovereignty underpinning the (Sunni) siyasa shariyya doctrine has been subject to a certain democratizing revolution. I turn to this third modern Islamic conception of sovereignty by way of conclusion. Islamic Democracy: Universal Caliphate? Like with the doctrines of the scholars sustaining the Kingdom of Saudi Arabia, and the pre-revolutionary doctrine of Khomeini, the central rallying cry of the Sunni Islamist movement during the middle of the 20th century was the proclamation of Gods exclusive sovereignty (hakimiyya) over the world and human legislation. As formulated most popularly by the Pakistani Abul Ala al-Mawdudi and the Egyptian Sayyid Qutb, what we might call high utopian Islamism rejected any form of comparison or similarity with modern Western ideals of governance. The common Abrahamic belief in Gods cosmic, creative sovereigntywhat we might call divine sovereignty as fact leads to an uncompromising insistence on Gods exclusive legislative and normative sovereignty. This is the background frame of reference against which all contemporary Islamist political thinkers operate. Calling into question Gods cosmic and legislative sovereignty is, of course, unthinkable. And yet, since the 1970s, many thinkers in the orbit of the Muslim Brotherhood and ideologically similar organizations have refined Islamist thought on the relationship between divine and human authority. In this final section, I single out Tunisian Islamist leader Rashid al-Ghannushi as a theorist of a complex vision that seeks to reconcile both divine and popular ideals of sovereignty. Ghannushis thought is built on the idea of a divine covenant of vicegerency with mankind-at-large. Pointing to four prominent Quranic verses in which God refers to mankind as a whole as his deputy or vicegerent (khalifa: caliph), particularly Q. 2:30,31 Ghannushi begins his treatment of freedom, responsibility and sovereignty directly with the people, rather than with the obligation of Muslims to obey Gods competent representatives, the scholars or the rulers. He writes that the Islamic conception of politics is based on a metaphysical account of the totality of existence, premised on the beliefs that God is the creator and master of all existence, more knowledgeable than His creatures and the highest legislator and commander, and that man has been distinguished from the rest of Gods creatures by his designation as Gods deputy [istikhlaf], through
31

And lo! Thy Sustainer said unto the angels: Behold, I am about to establish upon earth one who shall inherit it [khalifa]. They said: Wilt Thou place on it such as will spread corruption thereon and shed blood -whereas it is we who extol Thy limitless glory, and praise Thee, and hallow Thy name? [God] answered: Verily, I know that which you do not know. (Muhammad Asad translation. Asads commentary is instructive, and very much consonant with Ghannushis views: The term khalifahderived from the verb khalafa, he succeeded [another]is used in this allegory to denote man's rightful supremacy on earth, which is most suitably rendered by the expression he shall inherit the earth (in the sense of being given possession of it). The other verses are 6:165, 27:62 and 35:39. A fifth verse, 38:26, refers to King David as Gods deputy.

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which with he has been entrusted with reason, will, freedom, responsibility and the divinely ordered path for his life.32 This basic metaphysical foundation is used by Ghannushi to distinguish Islamic approaches to freedom, human rights, public justification and the state from Western conceptions, which he tends to see in a reductive way as all based on a kind of arbitrary, foundationless human will and purposeless philosophical anthropology. However, Ghannushis critique of modern Western political philosophy is not an absolute one and his approach is far from the sheer antagonism infusing the writings of Sayyid Qutb. He acknowledges that Western representative democracy is based on human values and can protect human dignity, referring to it as the second-best system. He sees its radical assertion of popular sovereignty, however, as a parochial response to the traditional struggle between a corrupt Church and absolute monarchs. For modern Europeans, the only path to the rule of law was through a radical rejection of any source of sovereignty apart from the people. Islams traditional location of divine sovereignty in the law means for Ghannushi that Muslims do not have go through a similar process of alienating themselves from God in order to liberate themselves from popes and kings. However, Ghannushis project is not just a reassertion of the traditional right of the scholars, as custodians of the law, to represent the people and constrain the rulers. He promises an incorporation of democratic institutions and practices into Islamic political thought. (88) Predictably, he finds precedent for democratic institutions in Quranic and early Islamic practices of consultation (shura), popular ratification of rulers (baya), communal consensus about religious practices and points of law (ijma) and the collective scope of the injunction to command the right and forbid the wrong. But the more radical aspect of his theory is the universalization and popularization of political sovereignty through the doctrine of mans vicegerency of God (istikhlaf). Ghannushi identifies the covenant of vicegerency (aqd al-istikhlaf) as the central idea of Islamic civilization and the basic principle of Islamic political philosophy. Contiguous with, but not quite identical to, the idea of a primordial covenant of belief and submission to God, mans vicegerency is the precondition of individual agency as well as of collective political life. Gods master legislation for mankind (the sharia) presupposes a human agent that can receive this law as a moral charge, has the moral capacity to either fulfill it or neglect it and can accept collective responsibility for its enactment. The right of any human to command and coerce another is derived from the authority of Gods law, but that sovereign authority is held by mankind-at-large as a collective trust bestowed by God: If original sovereignty in the Islamic state is only Gods will, represented by the sharia, then the authority of the Muslim society is as agent or representative of God, and God is the one who bestowed [khawwala: transferred, conferred, vested] this sovereignty and authority on the umma, within the framework of His sharia, and made the umma his deputy [astakhlafaha fil-ard]. (165) Like for the classical and modern siyasa shariyya theorists, sovereignty in Ghannushis modernist political theology is a sort of condominium. However, unlike the traditional siyasa shariyya vision of a condominium between the scholars and the secular
32

Rashid al-Ghannushi, al-Hurriyyat al-amma fil-dawla al-Islamiyya [Public Freedoms in the Islamic State] (Beirut: Center for Arab Unity Studies, 1994), p. 37. This is Ghannushis most important and most elaborate work of political theology, and here I will restrict my focus to this text. Subsequent page citations are in the body of the text.

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rulers, who between them represent both God and the people, Ghannushis vision is a more direct condominium of divine and popular sovereignty. The origin of human agency and authoritythe contract of vicegerencynecessarily presumes the ultimate unity and sovereignty of God: mankind is Gods deputy, a status of agency that necessarily requires a principal. Gods book, laws, rites and rules in principle enjoy constitutional supremacy. However, mans status as Gods deputy remains both universal and contractual. There is no designated representative of God or man and mankinds collective authority cannot be merely usurped on epistemic grounds. Ghannushis slogan for this conception of shared divine and popular sovereignty is: Text and Consultation (shura), which he equates with the sharia of God and consultation amongst the people, reason and revelation, constraint and freedom. (97-8) Actual, practical, effective political authority thus originates entirely with the people, which holds this authority on loan from God. Ghannushi quite clearly means this, and does not treat the idea of popular sovereignty merely as a point of theology in order to distinguish the Sunni view from the Shiite one, or as a legal fiction enacted only through the ritual of the baya. For him, all political authority is a strict contract of agency between the people (the principal) and the rulers. While the terms of this contract involve the delegation of the responsibility to enforce the sharia, Ghannushi makes clear that executive authority is entirely civil (madani) and his own understanding of what it means to enforce the sharia is somewhat looser than that of the traditional jurists. An appropriate place to begin is with Ghannushis story about the founding of the state and the source of its legitimacy. He distinguishes the ideal Islamic account from two others: forceful acquisition and the myth of the social contract. Ghannushi explicitly rejects the realism of late-medieval Islamic political thought, encountered above in Ibn Abd al-Wahhabs statement that whoever gains power by force over a city or country has the legal status of the imam in all things. However, while he sees the Islamic state in contractual terms, he also rejects the Western social contract account of the states legitimacy as originating in the free act of self-binding by persons in a state of nature. Ghannushis account depends on a distinction between the origins of governance as such (hukm: rule) and the origins of a regime or ruler (hakim). Governance as such the state, including its constitutional frameworkpreexists all human capacities to make worldly contracts, because it is both natural and divinely ordained. The contract is what establishes the state in Rousseau. However, in Islam, the contract of baya does not found the state, because the Text already has, and Muslims are not free as long as they remain Muslims to apply the rules of sharia or to invalidate them. The state is an original need in human society, not an exceptional or emergency manifestation. (146) While the idea of divine sovereignty might strike the critical secular reader as vague or nonsensical, here we see one clear implication of the belief in it: that the state is always already justified, requiring no further philosophical or theological grounding, and that the umma has no moral option of doing away with it. But if human freedom and will do not extend all the way down to the authority to originate civil society, the authorization of all actual political power within that religiously mandatory social organization flows entirely from the people. Ghannushi declares unambiguously that the contract established by the people is the source of any rulers or imams authority: the authority of the caliph is derived from the umma. (140) In contrast with the perfunctory, ex post facto ritual of the baya as described in the Saudi

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Basic Law, Ghannushi argues that the early caliphs both made extraordinary efforts to collect the baya from the umma-at-large and declared their own authority to be contingent on their fiduciary obligation to rule within the limits of Gods law. What can be concluded from this is that the umma is the source of all authorities and powers and has supreme sovereignty, all within the framework of the constitution (the sharia). (141) The ruler (including the entire executive apparatus) is thus an agent (wakil) or employee (ajir) of the umma, contracted with the sole purpose of helping the umma discharge its own covenantal obligation to obey Gods law. Again, this is not a theological justification for de facto absolutism, along the lines of Hobbes account of the popular origins of absolute monarchy. Ghannushi rejects the mere ex post facto ratification of appointed rulers and the restriction of suffrage to a small electoral college of elites. Even if select, elite bodies of representatives are formed and exercise a mediating fiduciary role (as with the scholars in the traditional siyasa shariyya conception), their own limited representative authority is derived exclusively from popular ratification and not their own epistemic claims. Popular sovereignty in this conception also includes the right to remove an errant ruler who violates the terms of the contract. The basic rule is that the one who possesses the right to appoint (tawliyya) also possess the right to remove, so if it is the people who loose and bind who appointed him, then they are called up to remove their confidence from him, announce this and appoint another. But if the people who loose and bind only have the authority to nominate candidate(s) to be directly elected by the umma, then it is upon the people to declare their lack of confidence and appoint new candidates for the imamate. (185) The people is also given substantial legislative authority. Ghannushi refers to the umma as the source of legislation [masdar al-tashri] and notes that while God is the primary and original source of legislation, the umma participates in divine will through its public practice of mutual consultation (shura). Moreover, for all the binding and constraining quality of Gods eternal law, the goal of the eternity of this final, sealing law required restricting and limiting the text of revelation to a determination of general principles and a few select particulars for organizing human relations and economics. The revealed law leaves the filling out of the details of that framework to the legislative efforts of the umma, developing with time, a practice that Ghannushi equates with the idea of universal communal consensus (ijma) as a source of divine law alongside revelation. This fact induces Ghannushi to proclaim that when deliberating about political matters the umma is guided by God and acquires from His light protection against collective error. (119) Nonetheless, the constrained nature of popular sovereignty in Ghannushis political theology should not be downplayed. Just as the covenant of vicegerency is not just a theological story that results in authoritarian guardianship, neither is the insistence on the primacy of Gods sovereignty in an Islamic democracy rhetorical cover for a kind of Lockean vision of popular sovereignty endowed with Gods imprimatur and hedged in only by a loose conception of natural right. Man is not the possessor of original right [sahib haqq asil] over himself or others but is only a deputy [mustakhlaf] or agent. [He] is not the possessor of supreme sovereignty but is only the possessor of a right to an ordained authority [sulta mahkuma] by the supreme legislative authority emanating from God. His only choices are to worship God in accordance with the covenant of vicegerency or to reject it and be ranked amongst the unjust, corrupt infidels. (99)

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Indeed, Ghannushi asserts starkly the ontological priority and normative supremacy of sharia to any human political authority, autarkic or democratic:
If the justification for the existence of an Islamic government is the implementation of sharia, putting God into the context of history, uniting the divine with the human, coloring life with Gods hue, then it does not deserve the obedience of its citizens to its commands except to the extent that they flow from submission and adherence to sharia and are in accord with the Legislator, or at least not in conflict with him. The Islamic state has no right, whether it is conceived as a political community that has bound itself in a covenant of loyalty and obedience to God or as the collection of executive, legislative and judicial authorities, to depart from the sharia, because the sharia, in the language of constitutional jurisprudence, is the original, foundational authority for the community and the government. (105)

Is the people then the author in any way of the law that precedes the political and constrains its will? Ghannushi regards the divine constraint on the exercise of popular will as a self-limitation after this umma has approved of and consented to God as its Lord and Islam as its religion, voluntarily and freely. (169) The people freely adopts divine sovereignty through the sharia then in an immanent sense it is the only will the people can have consonant with its awareness of its primordial covenant of vicegerency with God. This bears some comparison to the idea found in the constitution of the Islamic Republic of Iran that the people has already implicitly consented to the entire system of rule-by-jurists. Apart from the fact that Ghannushi does not authorize any single clerical ruler, or a class thereof, to claim any kind of donation of authority, is there an important difference between his attempt to reconcile the rhetoric of divine and popular sovereignty and the anti-democratic conceptions of sovereignty encountered in the previous two cases? If there is a deep difference, and a genuinely radical shift in the direction of popular sovereignty, it lies less in the insistence on popular control over rulers than in popular participation in the determination of what in the sharia is timeless, fixed and specific and what is a matter of general ethical principles and open to reinterpretation and application in time. In all political worlds that posit a rule of law that precedes and constrains political outcomes, sovereignty is not only a matter of who decides when the law is suspended in the name of law, but also of who decides on the boundary between ethics and politics. This is the abiding tension in hybrid theories of sovereignty like Ghannushis and I dont intend to pronounce on its resolution. But it is quite clear that theories like this lay the groundwork for the people at large to not only exercise an extensive guardian function over its human guardians but also to be the decider of how Gods sovereignty is imagined. In his extensive and forceful defense of the Text as the first pillar of Islamic political order and the originating and supreme authority within it, Ghannushi writes that the reference to Text and sharia as supreme authority and source of all other powers is not a reference to positive jurisprudence [fiqh] and expert reasoning as to the details [of the law]. Rather, perfectionwhich is a description of the shariais not in the particulars but only in the generalities. (101) The entire dilemma, and essential ambiguity in Ghannushis hybrid conception of sovereignty, is expressed a few pages later at the end of his core exposition of the meaning of divine sovereignty:

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The foundations of this [just, divine] law are not posited by a majority of society, or a dominant class, or even a people preoccupied with its own partial interest, but only by God, the Lord of all. It is enforced, explained and applied to new realities through new specific acts of legislation by a human body chosen and supervised by the people. The people thus have sovereignty over this body, involving appointment, supervision and removal. This is the authority of the people [sultat al-umma], or consultation.

It is banal to note that divine sovereignty is always the sovereignty of some human agentsacral monarch, Pope, class of scholars, Guardian-Jurist. There is always an inert or potential crisis of legitimacy in systems that appeal to divine sovereignty even where there is no claim that such sovereignty is shared with the people. Charismatic claims can break down, however, and the people can find themselves no longer recognizing their rulers as divine representatives, without sovereignty thus reverting to the people. The ambiguous premise of Ghannushis doctrine of vicegerencyhis caliphate of manis that the sovereign decision to bind oneself and others, to speak in Gods name, to authorize agents both to enact ones own will and discharge ones obligations has devolved upon the people collectively. This approach to the boundary between law and politics raises another comparison with the Khomeinist vision as it developed in post-revolutionary Iran. Recalling the argument that Khomeinis creation of the sovereign Guardian-Jurist collapsed the traditional distinction between the sacred law of the jurists and the temporal law of the secular rulers, thus dissolving the pre-political rule of sharia into the regime-protecting will of the Jurist, we see that Ghannushis scheme suggests the possibility of a popularization of this scheme. For, while Ghannushi draws heavily from siyasa shariyya theorists, and points carefully to distinctions between the status enjoyed by rules expertly extracted from revelatory texts and commands issued in the civil ream of statecraft, his emphasis on the universal caliphate and the description of politics as the ummas discharging of its half of the contract of vicegerency raises similar possibilities of the sacralization of politics. More intriguingly, Ghannushis assignment to the umma of the sovereign right not only to control secular rulers but also to determine what it means to apply the sharia, what is timeless and binding in Gods law and what is always a matter of collective judgment and discretion, raises the possibility of a similar unification of the dual representation of God and the people. However, this time it is not a class of jurists with a single primus inter pares at the head representing this unification but, somehow, the people enjoying this status. The peoples political sovereignty seems to suggest a sovereignty over the meaning of sharia as well, so that the peoples political judgments are not only authorized by the sharia but also somehow represent the sharia, a status not imaginable within classical siyasa shariyya models. While this preceding analysis suggests a democratizing, or even liberalizing, form of the sacralization of politics, it is doubtful that this kind of theorizing explains a great deal about how figures like Ghannushi will use political power. It is important to resist the temptation to see Islamist political thinkers and actors as either democrats or theocrats, as either liberal Islamists who find an Islamic language for post-1948 human rights schemes or as radical Islamists who speak instrumentally about moderation until they are in power. Approaching the questions of law, politics and revelation through the problem of sovereignty allows us not only to make finer distinctions between various 22

Islamic political theologies, but also to appreciate that the tension between visions of divine and popular sovereignty is authentic. For Ghannushi, the doctrine of mans universal vicegerency (istikhlaf) is primarily a move internal to Islamism that is certainly in a democratizing direction but not with European parliamentary democracy as its unambivalent aim. I will conclude, however, with one nod to current events, as this is where I began. At the time of writing, both Egypt and Tunisia are awaiting the proposals of semi-public constituent assemblies for new post-revolutionary constitutions. Inevitably, this process is fraught with tension and the possibility of extensive violence is far from foreclosed. Are the tensions between Islamist and secular parties only a sign of the superficial or insincere nature of Islamist parties rhetorical support for democracy and the civil state? Would the preceding analysis of the people as the bearer of effective sovereignty predict a more enthusiastic commitment to the widest possible popular basis for post-revolutionary constitutive politics? The move from thinking about the theological bases of political sovereignty to thinking about coalitions and commitments in specific, bounded countries is not a direct one. The doctrine of the universal caliphatethe caliphate of manis ambiguous with regard to its universalism both globally and locally. It is mankind, the children of Adam, referred to in Q. 2:30: I will create a vicegerent on earth. Yet, this covenant is one that mankind assumes the benefits and burdens of upon acknowledgment of the truth of Islam and the bindingness of sharia. Thus, the sovereign community in this scheme is not the people as suchany people that might find themselves contracting amongst themselves or founding a new polisbut rather the umma. Are secular co-citizens of countries like Tunisia and Egypt, in the sense of co-citizens who do not begin with the covenant of vicegerency and the obligation to execute the sharia however this is understood as the source of all political meaning, participants in this universal caliphate? It is easy to become alarmist over statements on the part of Islamist actors to the effect that the sovereign, constitutive community is limited to those who accept the sovereignty of God and the authority of the sharia, but it nonetheless appears true that the gap between democratic Islamists acceptance of the institutions and practices of constitutional, parliamentary democracy and the agonizing challenges of radical moral pluralism in bounded communities is not bridged by the political theology of the universal caliphate alone.

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