CONCEPT OF AN ISLAMIC STATE

*

By
Mr. Justice Dr. Nasim Hasan Shah,
Judge, Supreme Court of Pakistan
The raison d'etre for the creation of Pakistan was the desire of the Indian Muslims of
pre-Partition India to preserve and protect their Islamic traditions and heritage and to
conduct their affairs in accordance with the Islamic values. The movement for an
independent Islamic State--Pakistan would never have acquired such impetus had it
not been for this deep rooted and fervent desire of Muslims of India.
* Lecture delivered to the directing staff and participants of the 1989 Staff Course.
The question, no doubt, arises could not the Muslims of India have maintained their
Islamic values in a United India, and was it indeed necessary to have a separate
Islamic State of their own for this purpose?. The answer is that they could not. The
fact was that this objective could be achieved only by having a separate State of their
own. If Islam had been a religion of the Individual, they may not have felt the need of
a separate State, because an individual can commune with his creator in private but
Islam is not such a religion, it is a religion of Society. It is not a creed, as Allama
Muhammad Iqbal says; but a social order and in order to bring the full effect of the
principles of Islam to a human society it is imperative not only to have an Islamic
community but a community which also possesses the sanctions of a State to
implement Islamic laws.
There are two types of States in the world. One in which the State and religion are
completely separated following the principle "Render 'into Ceaser (King) what
belongs to him and Render unto God what belongs to Him." Here God and King
(State) are regarded as two separate and distinct entities. The commands of one are
not applicable to the other. The States in Europe are all founded on this principle and
here spiritual and temporal matters are placed in separate compartments.
In the other type of State no such separation exists-- that Sovereign and God are one
and the same. Here the supreme authority vests in God Almighty who is the
unchallenged ruler and the Supreme dispenser and whose commands are obeyed by
all. In this State, human rulers are his vice-regents and their orders are obeyed only
when they conform with and are derived from His divine commands or at least are not
repugnant to them. This is an Islamic State.
Professor Wilfred C. Smith, the well-known Western Scholar of Islam commenting on
the great debate going in the early 1950's about the role of Islam in Constitution,
Making in Pakistan, said:

"Islam is a religion, and like other religions, is transcendent, ineffable; no form
can continue or exhaust it. Like other religions it has been expressed in many
forms--artistic, intellectual, mystic but more than some others, social. In fact,
Islam is characterised among the religions by the particular emphasis which it
has from the beginning given to the social order".
[ 1]

[1] Wilfred C. Smith, Pakistan as Islamic Democracy, Lahore 1951.
Here he was echoing the thought of Iqbal that "Islam is, not a creed. It is a social
code".
In fact, Islam embraces within its legitimate sphere not only those acts and
performances which the followers of many other religions regard as included in the
word 'worship', but it also embraces aspects of individual, communal, national and
international activity. Indeed in Islam the regulation of all aspects of one's life in
accordance with the values of Islam constitutes a continuous worship of God. As a
distinguished Muslim Scholar, Dr. I.H. Qureshi, put it: "To us religion is not like a
Sunday suit which can be put on when we enter a place of worship and put off when
we are dealing with day-to-day life".
[ 2 ]
In fact, in Islam we can discover the
underlying principles of social relationships, the laws of peace and war, of state-craft
and human intercourse. Indeed, a complete course of conduct.
[2] Pakistan (First) Constituent Assembly Debates, 1949, Vol. 5, No.5, p.96.
An Islamic State is, accordingly, necessary not only because in such a State the
Islamic way of life can be enforced in its totality, but it is necessary also because it
visualises a State where Muslims are enabled to strive for moral perfection and
happiness. All believers living therein are enjoined to strive for moral perfection in
accordance with the ideals of Islam and must make collective efforts to establish what
is right and eradicate what is wrong: "Do what is right and forbid what is wrong"
(XXII:41) is the command of Holy Qur'an. This is the basic norm to be observed in an
Islamic State.
Undoubtedly, fulfilment of Islam as a way of life was not possible without the
establishment of an Islamic State--Pakistan.
But Islam is not a backward looking or a stagnant religion. In fact, t he Holy Prophet
(peace be upon him) was the greatest reformer that World has ever seen. As Sir Amir
All writes in his famous book "The Spirit of Islam" at page 182 that:
"The Muslims of the present day have ignored the spirit ----------- Instead of
living up to the ideal preached by the Master, instead of "striving to excel in
good work", "of being righteous"; instead of loving God, and for the sake of
His love loving His creatures,--they have made themselves the slaves of
opportunism and outward observance. It was natural that in their reverence and
admiration for the Teacher his early disciples should stereotype his ordinary
mode of life, crystallise the passing incidents of a chequered career, imprint on
the heart orders, rules, and regulations enunciated for the common exigencies
of the day in an infant society. But to suppose that the greatest Reformer the
world has ever produced, the greatest upholder of the sovereignty of Reason,
the man who proclaimed that the universe was governed and guided by law
and order and that the law of nature meant progressive development, ever
contemplated that even those injunctions which were called forth by the
passing necessities of a semi-civilised people should become immutable to the
end of the world, is doing an injustice to the Prophet of Islam".
Accordingly, when we come to discuss the concept of an Islamic State one may safely
say that there is not merely one form of an Islamic State, but there are many; and it is
for the Muslims of every period to discover the form most suitable to their needs-- on
the condition, of course, that the form and the institutions they choose are in full
agreement with the explicit, unequivocal Shari laws relating to communal life.
These political Shari laws found their full expression in the administrative institutions
and methods that prevailed at the time of the Rightly Guided Caliphs and therefore their
State was Islamic in every sense of the word. However, we must not forget that in the
unwritten Constitution to which the Islamic Commonwealth conformed in those days,
there was, side by side with the explicit Shari laws relating to statecraft, certain other
laws enacted by the rulers of the time in accordance with their own interpretation of the
spirit of the Qur'an and the Sunnah--that is to say, derived through ijtihad. Apart from
these, we encounter in the period of the Rightly Guided Caliphs many other
administrative and legislative enactments which were neither directly nor indirectly
derived from Qur'an or Sunnah but from purely commonsense consideration of
governmental efficiency and public interest (as, for example, ''Umar's establishment of
the diwan, or treasury office after the Persian model, or his prohibiting warriors from
Arabia to acquire landed property in the newly conquered territories of Iraq). Inasmuch as
such enactments were promulgated by the legitimate Government of the day and were,
moreover, not contrary to the spirit or the letter of any Shari law they had full legal'
validity for that time. But this does not mean that they must remain valid for all times.
However, our moral obligation to try to emulate the great Companions relates precisely to
their character and 'behaviour-- to their spiritual and social integrity, their selflessness,
their idealism, and their unquestioning surrender to the Will of God. It cannot and does
not relate to an imitation, by people of later times, of the Companions' procedure in
matters of State administration-- for the simple reason that this procedure was in many
respects an outcome of the requirements of those times and individual ijtihad, and did not
depend in each and every instance on Shari Ordinance alone. The Prophet's sanction of a
ruler's right to resort to such free, ijtihad decisions is illustrated in many Traditions, but
perhaps nowhere as lucidly as in the classical report of his conversation with his
Companion Mu'adh ibn Jabal:
"When he (Mu'adh ibn Jabal) was being sent (as governor) to the Yemen, the
Prophet asked him: "How will you decide the cases that will be brought before
you?" Mu'adh replied: "I shall decide them according to the Book of God". "And
if you find nothing concerning (a particular matter) in the Book of God?" "Then I
shall decide it according to the Sunnah of God's Appostle"- "And if you find#
nothing about it in the Sunnah of God's Appostle"- "Then", replied Mu'adh, "I
shall exercise my own judgment (ajtahidu bi-ra'yi) without the least hestitation".'
Thereupon, the Prophet slapped him upon the chest and said: "Praise be God, who
has caused the messenger of God's Messenger to please the latter'." (See al
Tirmidhi and Abu Daud, on the authority of Mu'adh ibn Jabal).
We should never forget that the message of Islam is eternal and must, therefore, always
remain open to the searching intellect of man. The very greatness of the Prophet's life
example lies in the fact that the more our knowledge of the world progresses, the better
we can understand the wisdom of the Law of Islam. Thus, our right to independent.
ijtihad on the basis of the Qur'an and the Sunnah is not merely permissive, but
mandatory; and particularly so in matters on which the Sharia is either entirely silent or
has given us no more than general principles.
Thus, even the Rightly-Guided Caliphs themselves varied their system of administration
or as we would say today, the Constitution of the State in many a point. As an illustration
the problem of choosing the Head of the State may be taken.
Although there was no difference of opinion among the Companions concerning the
principle of elective Government as such and it was unanimously agreed that the Chief
Executive of an Islamic State must be elected the Law did not specify any particular
method of election and so the Companions regarded the method of election as something
that lay outside the scope of the Sharia and could, therefore, legitimately be varied in
,accordance with the best interests of the community. Thus, the first Caliph, Abu Bakr,
was elected by the chiefs of the muhajirs and ansars present at Medina at the time of the
Prophet's demise. On his deathbed, Abu Bakr designated 'Umar as his successor and this
choice was subsequently ratified by the community (ratification being, in this instance,
equivalent to election). When 'Umar, in his turn, was dying, he nominated an elected
body composed of six of the most prominent Companions of the Prophet and entrusted
them with choosing his successor from among themselves. Their choice fell on 'Uthman,
who was thereupon recognized by the community as Umar's rightful successor. After
Uthman's death. All was proclaimed Caliph by a congregation in the Prophet's Mosque,
and the majority of the community thereupon pledged their loyalty to him.
Hence, under each of these four Caliphates which we describe as "rightly-guided", the
Constitution of the State differed on a most important point; for it cannot be denied that
the method by which the Head of the State is elected is a constitutional question of great
importance. The different treatment accorded by' the Companions to this question-- with
regard to both the composition of the electorate and the electoral procedure--shows that,
in their opinion, the Constitution of the State could be altered from time to time without
making it any the less "Islamic" on this account.
It may be recalled that a State which in the lifetime of the Prophet embraced only
agricultural and pastoral communities with simple needs and comparatively static
problems suddenly became the heir to the most complicated Byzantine and Sassanian
civilizations. At a time when almost all the energies of the Government had to be directed
toward military consolidation and ensuring some administrative efficiency, new,
staggering problems were arising every day in the sphere of politics and economics.
Governmental decisions had often to be made on the spur of the moment and thus, of
necessity, many of them were purely experimental. To stop at that first, splendid
experiment and to assert that thirteen centuries after the Rightly-Guided Caliphs, the
organization of an Islamic State would be in exactly the same form with exactly the same
institutions in which their State was manifested, would not be an act of true piety; it
would on the other hand be a betrayal of the Companions' creative endeavour. They
were pioneers and path-finders, and if we truly wish to emulate them, we must take up
their unfinished work and continue it in the same creative spirit.
Before we talk on the basic principles underlying an Islamic State, it may be observed
that establishing an Islamic State is not a goal or an end in itself but is only a means
thereto: the goal being the growth of a community of people who stand up for equity
and justice, for right and against wrong--or, to put it more precisely a community of
people who work for the creation and maintenance of such social conditions as would
enable the- greatest possible number of human beings to live, morally as well as
physically, in accordance with the natural Law of God, namely, Islam. An
indispensable prerequisite for such an achievement is the development of a strong
sense of brotherhood among the community. The Qur'an says.
"The Faithful are but brethren"
(Qur'an XLIX: 10)
According to the Qur'an and the Sunnah this brotherhood must be of an ideological
nature, transcending all considerations, of race and origin, a brotherhood of people
bound together by nothing but graciousness of a common faith and a common moral
outlook. In' the teaching of Islam, it is such a community of ideals alone that can
provide a justifiable basis for all human groupings. It is only if these ideals are to be
furthered that the concept of an Islamic State functioning within the framework of the
Sharia finds its meaning and justification.
What do I mean by the Sharia? In my opinion Sharia comprises those clear-cut
commands and prohibitions which are contained in the Qur'an and the Sunnah and no
more. These Divine Ordinances delineate the outer limits i. e. the boundaries within
which the community must act. All the rest, the multitude of "possible" legal
situations falling within these limits can be decided from case to case in accordance
with the requirements of the time and the changing social conditions. These
Ordinances are described technically as nusus (singular, nass). It is the nusus of the
Qur'an and the Sunnah, and these alone, that collectively constitute the real, eternal
Sharia of Islam. In His Sharia, the Law Giver has ordained in unmistakable terms as
to what are the obligations of the Muslims and what matters are not lawful and,
therefore, forbidden .
The study of the commands that have been expressed in nass terms reveals that by far
the much larger area of human activity has been left unspecified wherein the Law
Giver has not forbidden the doing of a thing. Accordingly, the doing of a. thing in this
field is allowable (mubah) from the Shari point of view. In this field it is permissible
for Muslims to do whatever is considered necessary in the circumstances.
Consequently, the Muslims are free in this field to provide for whatever may be
necessary, through additional legislation by the exercise of our ijtihad (independent
reasoning) in consonance with the spirit of Islam. In other words, the legitimate field
of the community's law-making activity comprises (a) details in cases and situations
where the Sharia provides a general principle but no detailed commands and ( b)
princip l e s as well as the details with regard to matters which are mubah. It is in
this connection that it is said in the Qur'an:
"For every one of you We have ordained a Divine Law and an open road"
(Quran v:48)
If we approach our task in this spirit of free inquiry, we arrive at two important
conclusions. First, the concept of Islamic Law--especially with regard to public law--
acquires once again that simplicity which has been envisaged for it by Almighty Allah
but subsequently buried under many layers of conventional and frequently arbitrary
interpretation. Secondand this is most pertinent to the problem before us--the
outward forms and functions of an Islamic State need not necessarily correspond to
any "historical precedent". All that is required of a State in order that it might
deservedly be described as "Islamic" is the embodiment in its Constitution and
practice of those clear-cut, unambiguous Ordinances of Islam which have a direct
bearing on the community's social, political, and economic life. As it happens, those
Ordinances are very few and very precisely formulated; and they are invariably of
such a nature as to allow the widest possible latitude to the needs of any particular
time and social conditions.
In the light of this background I may now refer to some of the basic and fundamental
concepts of an Islamic State. The first and foremot herein is that Sovereignty vests in
Almighty Allah. "It is only for Allah to command" (Surah Yusuf, Verse 40) and "to
Allah belongeth the dominion of Heavens and the Earth (Surah Baqarah, Verse 107).
Human beings are the viceregents of God; hence the authority exercised by them is
only as the delegates of the Almighty and as a trust for Him.
The Head of an Islamic State (Amirul Mominin) must be a Muslim. Since the purpose
of an Islamic State is the establishment of Islamic Law as a practi cal solution to man's
problems, it is only a person who is a Muslim who can be entrusted with the office of
Head-of State.
However, apart from the condition that the Head of State must be a Muslim and the
"most righteous of you"-- which obviously implies that he must be mature, wise and
superior in character-- the Sharia does not specify any conditions for eligibility to this
office, nor does it lay down any particular, mode of election, or prescribe the
qualifications of the elections. Consequently, these details are to be devised by the
community in accordance with its best interest and the exigencies of the time.
The Head of the State, however, is enjoined to run the affairs of the Islamic State
through "consultation with the believers":
"Their (the Believers) communal business (amr) is to be (transacted in)
consultation among themselves" (Qur'an, XLII: 38)
This nass injunction is of the utmost importance and constitutes the bedrock of all
Islamic thought in relation to statecraft. It is so comprehensive that it reaches out into
almost every department of political life and indicates that the authority to rule does not
belong to anyone man. All affairs of a communal nature must be decided through
consultation with the believers to whom the rulers are accountable. It indeed provides the
manner in which the Government of an Islamic State itself is to be established i. e. by
consulting the believers which in modern times means through elections. The phrase
"amruhum shura baynahum" makes the transaction of all political business not only
dependent upon, but synonymous with, consultation, from which we can conclude that
the legislative powers of the State should be vested in an Assembly chosen by the
community.
In an Islamic State, the believers, no doubt, are enjoined to "Obey God and Obey the
Apostle and those in authority among you".
But a Muslim's duty of allegiance to the Government, represented by the person of the
Amir, is not unconditional. As has been laid down by the highest authority-- the Prophet
himself-- it is due as long as he acts in accordance with the commands of Allah. The
Prophet has said:
"No obedience is due in sinful matters; behold obedience is due only in the way of
righteousness (fi'l-ma ruf)"
(Al-Bukhari and Muslim on
the authority of Ibn Umar)
Abu Bakr on election as the Caliph said:
"O, people, I have been made the Ruler amongst you, and I am not the best of
you. So if I act rightly, help me, and If I am in error, correct me. Truth is a
(sacred) trust, and false-hood is breach of trust. The weak amongst you is strong
in my eyes till I bring, with the help of God, to him what is his right. And the
strongest amongst you is weak (in my eyes) till I take from him, with the help of
God, what is due. 0, people never did a people give up the efforts in the path of
Allah but Allah made them subject to disgrace and never did obscenity become
public in any people but Allah put them into tribulations. Obey me when I obey
Allah and his Prophet and when I disobey Allah or His Prophet then I have no
right to obedience from you.
(Al-Muttaqi, Kanz al Ummal Hyderabad 1954, Vol.V)
In an Islamic State the rulers are enjoined to deal with people with kindness. For
Allah says:
"If you were unjust and harsh they would break away from you; so sympathise
with them and be kind to them, and consult them in respect of affairs; then decide
and have confidence in God; Verily God loves those who have faith in Him."
(III: 159)
Indeed establishing a just society and doing justice to all citizens is emphasised in the
Holy Qur'an more than once:
"Allah doth command you to render back your Trusts to those to whom they are
due ; and when ye judge between man and man (whether Muslims or non-
Muslims), that ye judge with justice: Lo; comely is the teaching which he giveth
you! Lo! Allah is He Who heareth and seeth all things". (I V : 58)
"Oh ye who believe! stand out firmly for justice, as witnesses to Allah, even as
against yourselves, or your parents; or your kin, and whether it be (against) rich or
poor: For Allah can best protect both.. Follow not, the lusts of your hearts, lest ye
swerve, and' if ye distort (justice) or decline to do justice; verily Allah is well
acquainted with all that ye do". (IV:135)
Indeed the believers are enjoined to employ all means for establishing "all that is right"
(al-maruf) and eliminating "all that is wrong" (al-munkar).
An Islamic State furthermore must be a free and democratic State wherein its inhabitants
are free from every kind of subjection, oppression and tyranny. No human being can be
the master of another human being in an Islamic State. Here the government must be the
Government of laws wherein its inhabitants are subject to the Laws of God and. God
alone. It is ordained:
"The authority and control belong to Allah only. He hath commanded that ye
serve none save Him. That is the right religion but most human beings understand
not". (XII:40)
When we say that an Islamic Society must be a just Society it also means that it must be
free from all exploitation. The ideal of an Islamic Society is indeed that of a balanced
community "wherein both the evils of poverty as well as the evils of riches are done away
with".
The Holy Qur'an clearly states that all human beings have equal right to the means of
sustenance found on earth, and that, consequently, the citizens of an Islamic State have
equal right to the means of sustenance found in the State:
"He (Allah) it is who created for you (i.e. for the benefit of all of you), 0
mankind! all that is on the earth" (II:29)
According to this verse, no human being has any exclusive and absolute right to anything
found on the earth:
"And we have provided therein (i.e. in the earth) means of subsistence for you and
for those for whom ye provide not"
(XV :20)
And again:
"--------and (Allah) ordained in due proportion therein (i.e. in the earth) the
sustenance thereof (for the purpose of fulfilling t he requirements of its
inhabitants) in four days; equal for those who seek (to fulfil their needs)"
(XLI:1.0)
However, the Qur'an calls upon believers to work hard and lays down that no man can
have anything except by his labour:
"That man can have nothing but what he strives for (through labour)" (LIII: 39)
But at the same time holds out the assurance that God will reward man's labour, in full.
Hence, it is the duty of an Islamic State to establish such an economic order wherein
every citizen is fully rewarded for his labour:
"And that his (man's) effort will be seen; then he will be repaid for it with fullest
payment" (LIII: 40,41)
For man is the honoured creature of God:
"Verily We have honoured the children of Adam" (XVII:70)
Hence, it is the duty of an Islamic State to organize, ensure and promote honourable
living and livelihood for all of its citizens.

The concept of an Islamic State, in short, is of a State in which the Government is formed
with the consultation of the people, the head of the State as well as other authorities are
accountable to the community and the State strives to do right and to combat wrong and
is also constantly striving to create a dynamic social order based on the principles of
justice, co-operation, brotherhood and self-sacrifice in the interests of the welfare of the
entire community.
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