arab law quarterly 31 (2017) 163-186 Arab Law

Quarterly
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The Caliphate State in Theory and Practice

Bawar Bammarny*
University of Heidelberg, Heidelberg, Baden-Wuerttemberg, Germany
bammarny@ipr.uni-heidelberg.de

Abstract

The history of Islām shows clearly how the question of the Caliphate is of central,
enduring and great ongoing importance. While Christianity was split into different
religious denominations, in particular during the 5th century due to theological ques-
tions about the divine and human nature of Christ, the biggest split in Islām was due
to questions about the Caliphate. This article offers an introduction to the divergent
approaches to government in Islām and a discussion of recent efforts to restore an
Islāmic Caliphate.

Keywords

Caliphate − Islāmic State − Sharīʿa

1 Introduction

The history of Islām shows clearly how the question of the Caliphate is of cen-
tral, enduring and great ongoing importance. While Christianity was split in
different religious denominations, in particular during the 5th century due to
theological questions about the divine and human nature of Christ, the biggest
split in Islām was due to questions about the Caliphate.
However, many scholars and above all politicians from World War I onwards
did not recognise the relevance of the Caliphate issue. After the dissolution of
the last Islāmic Caliphate, namely the Ottoman Empire in 1923 AD (1341 AH),

* For helpful readings of this article I thank Dr. Peter Macalister-Smith (Max-Planck-Institute
for Comparative Public Law and International Law, Heidelberg).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/15730255-12341339

164 Bammarny

political parties and movements emerged with the aim to restore an Islāmic
Caliphate, but were often ignored. Recently, the Islāmic State (IS) declared
‫�� ا ف���ة ال ��س� ا �م����ة‬
‫ة �خ‬
the establishment of an Islāmic Caliphate or State (dawlat al-ẖilāfa l-islāmīya:
‫)د و�ل�� ا ل ل ا ل ي‬. IS staked its claim as authority for the entire Islāmic
world, with a commitment to achieve world domination, and has thereby
caused considerable discussion and major conflicts. During recent years, IS
has held sway over large areas in Iraq and Syria. Furthermore, radical Islāmic
groups worldwide pay homage to IS and its concept of the Caliph.
Although the Caliphate collapsed and was terminated in the aftermath
of World War I, the theories related to the institutional organization of the
Islāmic polity at a higher level has continued to occupy the attention of some
scholars.1 The present article introduces divergent approaches to government
within Islām and discusses recent efforts to restore an Islāmic Caliphate.

2 Society, Nation and the State in Islām

‫ة‬
The Arabic word dawla (��‫ )د و�ل‬used today for ‘state’ is mentioned only once in
the Qurʾān. Because only the Arabic-language version of the Qurʾān is regarded
as a valid primary source, this cannot be ignored and must be cited in the first
place here.2

‫�ش‬‫)��سور� ا �ل‬: ‫ة‬

Qurʾān 59:7 (Sūrat al-Ḥašr (The Mustering) ‫ح���ر‬
Whatever Allah has conceded His Messenger from the population of
the towns, then that is for Allah and for the Messenger, and for the near
kinsman, and the orphans, and the indigent, and the wayfarer, so that it
may not [make] a circuit between the rich among you. And whatever the
Messenger brings you, then take it; and whatever he forbids you, then
give over. And be pious to Allah; surely Allah is strict in punishment.

1  In this regard, see: Hamilton A.R. Gibb & J.H. Kramers, Shorter Encyclopedia of Islam (Leiden:
E.J. Brill, 1953, Third Impression 1991); John L. Esposito, Modern Islamic World, Vol. I (Oxford:
Oxford University Press, 1995); Thomas W. Arnold, The Caliphate (Oxford: Oxford University
Press, 1924).
2  English translations by the author are taken from: Mohammad Mahmūd Ghālī, Towards
Understanding the Ever-Glorious Qurʾān (Cairo: Dār an-Nashr li-l-Jāmiʾāt, 4th edn. 2009), with
this author’s occasional emendations.

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 165
َ َ
َ َ‫�ْ قُ ْ َ َ �َْت‬ َ ‫�َّم�ا �أ فَ��ا ء ا �ل�ّ�لَ�هُ َع��َ َ �ُ�س �ل� �م� نْ �أ ْ�ه� ا �لْ��قُ��َ � فَ���ل�ّ�لَ� َ �ل�ل َّ �ُ�س‬
‫م‬ ‫ا‬
��� �
‫ل‬ ‫ا‬ � �
���‫ل‬ ‫ا‬ � ���
‫ل‬ ‫ل‬
‫ى ر وِهِ ِ � ِل رى ِ هِ وِ ر و ِ وِ ذِ ي� ر بى و �ي ى‬ ‫ل‬
ُ ُ َّ ُ ُ َ‫َ ْ َّ َ ْ َُ نَ ُ َةً َ ْ نَ أَ غْ َ ن ُ ْ َ َ آت‬ َ َْ َ
‫�م ا �لر��سول‬
�‫�م و�م�ا � �ا ك‬�‫�و� د و�ل�� ب�ي��� ال� ��� ي���ا ء �ِم�� ك‬
ِ‫�ن‬ ‫ك‬ �
‫ي‬ ‫ا‬ ‫ل‬ ‫ك‬ ��‫ي‬
‫�بِ ِل �ي‬ � �
‫ل��س‬ ‫ا‬ � ‫ا‬
ِ‫وُ ِ ي نِ ن‬
� ‫ب‬ ‫و‬ � �
��‫ك‬ ‫ا‬
�‫��س‬ ‫ا �ل���م‬
َ‫فَ�خ ذُ ُ َ َ َن َ ُ ْ َ نْ ُ فَ نتَ ُ َ تَّقُ َّ َ نَّ َّ َ شَ ُ ْ ق‬
� � � �
ِ‫��� وه و�م�ا ���ه�ا ك�م ع���ه ��ا ����هوا وا �����وا ا ل��ل�ه �إِ � ا ل��ل�ه ����دِ ي��د ا �ل ِ�ع�� ب‬
� ‫ا‬
���

‫ة‬
However, in this Qurʾānic text, the word dawla means possession, or wealth
of the rich. The word umma ( ��‫ )ا �م‬meaning society or nation is, however, men-
tioned as many as 49 times in the Qurʾān. For proper understanding of the con-
cepts society, nation and state, it is first necessary to consider several examples
from the Qurʾān:
‫ق ة‬ ‫ة‬
Qurʾān 2:143 (Sūrat al-Baqara (The Cow) �‫)��سور� ا ��لب���ر‬:
And thus We have made you a middle nation [Umma] to be witnesses
over mankind, and [for] the Messenger to be a witness over you. And
in no way did We make the Qibla which you had been [facing], except
that We should know who closely followed the Messenger from him who
turned over on his heels. And decidedly it was indeed a great thing except
for the ones whom Allah has guided, and in no way will Allah indeed
waste your belief. Surely Allah is indeed Ever-Compassionate, Ever-
Merciful to mankind.
ُ ُ َْ َ َ َ َ َ
ْ ُ‫� ْ أ �َّ ةً َ �َ ً �ّتَ ُ نُ ْ �شُ َ َ ََ � نَّ �� ََُ نَ � َّ�ُ ُ َع��َلْ ك‬ ‫َ ذ‬
‫�م‬� �‫�و� ا لر �سول ي‬ ‫�و�وا ����ه�د ا ء ع��لى ا �ل��ا سِ و�ي ك‬ ‫��� �ِل�ك ج� ��ع��لن��ا ك�م � م�� و �س��ط�ا ِ�ل� ك‬ ‫وك‬
َ َ
ُ َ‫شَ ً َ �َ َ َ ن �ْ َْ ةَ �ّ �ن َ َ ْ َ ّ َ ْ َ َ َ�تّ ُ َّ ُ َ َّ َ ق‬ َ ُ َ َ ْ
�‫�� ت� ع��لي���ه�ا �إِ لا ��لِ ن��ع��لَ �م� ن� ي���بِع ا �لر��سول �ِم���م� ن� ي�ن����لِ� ب‬ �‫����� ي���د ا و م�ا ج���ع��ل��ا ا ل��قِ�� ب���ل�� ا �ل�� �ك‬
‫تِي‬
‫م‬ َ َ ِ‫ه‬
ْ �ُ‫ََ �َ َْ َ ن َ نَ تْ �َ َ َ �ةً ل ّ ََ �ّ � نَ َ َ � � َّ ُ َ �َ َ نَ � َّ ُ � ُ َ َ نَ ك‬
‫� ي��ع �إِ�ي���م�ا ��م‬ � ‫كا �� ل��ك�ي��ر ا ع��لى ا ل ذِ��ي� �ه�د ى ا ل��ل�ه و م�ا‬
ِ‫كا � ا ل��ل�ه �لِي�����ض‬ � � ‫ع��لى ع��قِ����بي���هِ و‬
ِ‫بِ �إ‬ ِ‫�إ‬
ٌ � ّ ‫نَّ ا � َّ َ ��لنَّ �� � َ�ؤُ �ف‬
َ ٌ َ
‫�إِ � ل��ل�ه بِ�ا ��ا سِ لر و� ر حِ ��ي���م‬
‫ة �ن‬
Qurʾān 4:41 (Sūrat al-Nisāʾ (The Women) ‫)��سور� ا �ل���س�ا ء‬:
How then will it be when We cause to come from every nation [Umma] a
witness and cause you to come as a witness against these?
ً َ ‫َْ َ ََ َ ُ�ؤ‬ َ َّ ُ‫فَ َ ْ فَ �إِ�ذَ �ئْنَ ن ُ ّ أ‬
‫كل � �م��ٍة � ش����� ي���دٍ َو جِ���ئ ن���ا ��ك ع��لى �ه لا ء �ش���� ي���د ا‬
� �‫���كي�� ا �� ���ا �م‬
ِ‫ه‬ ِ‫ب‬ ِ‫بِ ه‬ ِ � ِ ِ‫ج‬
‫ف‬ ‫ة‬
Qurʾān 7:34 (Sūrat al-Aʿrāf (The Heights) �� ‫)��سور� الا �عرا‬:
And to every nation [Umma] is a term; so when their term comes, they
will not [be able to] postpone [it] by a [single] hour, nor will they put [it]
forward.

arab law quarterly 31 (2017) 163-186

166 Bammarny
َ‫َ ُ ّ أُ َّ ة أَ َ ٌ فَ�إِ�ذَ َ َ أَ َ ُ ُ ْ َ َ ْ تَأْ ُ نَ َ َ ةً َ َ َ ْ تَقْ ُ ن‬
�‫��ل � �م��ٍ � ج��ل �� ا ج��ا ء � ج����ل�ه���م لا ي�����س��� خِ�ر و� ��س�ا ع�� ولا ي�����س�����دِ �مو‬
�‫�ل ك‬
ِ ِ‫و‬
‫ة ن‬
Qurʾān 10:47 (Sūrat Yūnus (Jonah) ‫)��سور� �يو���س‬:
And for every nation [Umma] a Messenger; so when their Messenger
comes [the case] is decided between them with equity, and they are not
done an injustice.
َ‫َ ُ ّ أُ َّ ة َّ ُ ٌ فَ�إِ�ذَ َ َ َ ُ ُ ُ ْ ُق َ َْ نَ ُ ْ ْ َ ُ ْ َ ُ�ظْ َُ ن‬
�‫�ل ك‬
�‫��ل � �م��ٍ ر��سول �� ا ج��ا ء ر��سو��ل�ه���م ��ضِ���ي� ب���ي���ه���م بِ�ا �ل��قِ����س ِ��ط و�ه���م لا �ي�� �ل�مو‬
ِ ِ‫و‬
‫ة‬
Qurʾān 13:30 (Sūrat al-Raʿd (The Thunder) ‫)��سور� ا �لرع�د‬:
Thus We have sent you among a nation [Umma] even before which other
nations have already passed away, to recite to them what We have re-
vealed to you, and they disbelieve in The All-Merciful. Say ‘He is my Lord;
there is no god except He; on Him I put trust and to Him is my repenting’.

َْ َ ْ َ‫أُ َّ ة َق ْ خَ َ تْ ن َقْ َ أُ َ ٌ ّ�تَتْ َُ َ َ ْ ُ َّ َ أ‬ َ َ ْ َ‫َ َ َ أ‬

�‫� ذ�� �ل�ك � ْر�َ�س��لن��ا ك ف‬
‫ح��ي ن���ا‬
�‫� �م��ٍ ��د ���ل�� �ِم�� � ب������ه�ا � �م���م �ل� ���لو ع��لي������م ا �ل ذِ�� �� � و‬
‫ي‬ ِ ‫ِ�ي‬ ِ ‫ك‬
َِ‫ه‬ ِ‫ل‬
َ‫� َّْحَ ُق ْ ُ َ َ �ّ ل �َ َ ل َّ ُ َ َ َ ْ تَ َّ ْ تُ َ �َ ْ �َ ت‬ ْ
َ‫َ ْ َ َ ُ ْ َ فُ ُ ن‬
� ِ‫ك�ل�� و�إِ �لي��هِ م���ا ب‬� ‫بِ�ا لر �م�� ��ل �هو ر بِ�ي ا ل�ه ا �هو ع��لي��هِ �و‬ �‫�����رو‬‫��لي��ك و�ه���م ي� ك‬
ِ‫�إِ �إ‬ ِ‫ن‬ ِ‫�إ‬
In modern Arabic the word umma is translated as ‘nation’. According to Islām,
all Muslims are united in one umma according to their belief.3 Therefore, ac-
cording to Islām, the umma and its governing body have nothing to do with
race or ethnic origin. In practice, however, egalitarian and universalistic ap-
proaches of Islām were often disregarded or disrupted by disputes about the
distribution of power referring to pragmatic or genealogical considerations.
So it was, for example, during the ʿUmayyad Caliphate (661-750 AD/41-132 AH),
where it was important to be not only Muslim but also Arabic in order to par-
ticipate in power. During the period of Mameluke rule (1250-1517 AD/647-923
AH), the favoured in society had to be not only Muslim but also of Circassian or
Turkish origin. In a similar manner, in other societies, other ethnic or cultural
factors could be important. However, these restrictions could not be referred

3  Hamilton A.R. Gibb, ‘Constitutional Organization’, in: M. Khadduri & H. J. Liebesny (eds.),
Law in the Middle East. Vol. 1, Origin and Development of Islamic Law (Washington, DC: Middle
East Institute, 1955) 3-27; and compare: Inayatullah Baloch, ‘Islām, the State and Nationality
Problems: A Study of Ethnic Rights in the Middle East’, in: G. Alfredsson & P. Macalister-
Smith (eds.), The Living Law of Nations. Essays in Memory of Atle Grahl-Madsen. (Kehl: N.P.
Engel, 1996) 227-241.

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 167

to religion.4 The Qur’ān clearly pleads for equality between nations, ethnicities
and cultures:
‫ح��� ا ت‬
‫)��سور� ا �ل‬: ‫ة‬
Qurʾān 49:13 (Sūrat al-Ḥuǧurāt (The Chambers) � ‫� جر‬
O mankind! We created you from a single [pair] of a male and female,
and made you into nations and tribes, that ye may know each other [not
that ye may despise each other]. Surely the most honourable of you in the
sight of Allah is [he who is] the most righteous of you. And Allah has full
knowledge and is well-acquainted with all things.
ْ ّ
َّ‫ن‬ ُ‫َ َ َ ْ نَ ُ ْ ُ ُ ً َقَ َ َ َ َ ف‬ َ‫َ أَ ُ َ نَّ ُ نَّ خَ َقْ نَ ُ ْ نْ �ذَ َ َأُن ث‬
� ِ‫�إ‬ ‫�م �ش���عوب�ا َو� ب���ا ئِ�ل ��لِ ت��ع�ا ر�وا‬
�‫و ج� ��ع��ل��ا ك‬ ‫�ٍر و� ��ى‬ ‫�م �ِم�� ك‬ �‫ي�ا � ي���ه�ا ا ��ل��ا ��س �إِ �ا ���ل�����ا ك‬
ٌ � َ‫أَ ْ ََ ُ ْ نْ َ َّ أَتْ قَ ُ ْ نَّ َّ َ َ ٌ خ‬
‫�م �إِ � ا �ل��ل�ه ع�لِ��ي���م بِ��ي��ر‬ �‫�ر�م ك‬
�‫�م عِ� ���د ا �ل��ل�هِ � ������ا ك‬ ‫�ك‬

The huge controversy within Islām about the concept of Islamic State arises
from disputed arguments and assertions that are advanced by all participants
‫ة‬
or ‫آ‬Sharīʿa (��‫ )�ش��ر�ي�ع‬law has two primary sources, namely the Holy Qurʾān
based on their view of the sources of Islāmic law. All agree that divine Islāmic
‫ا �ق � ن‬ ‫ة‬
(� ‫ ) ل����ر‬and the Sunna ( ����‫ )ا �ل����سن‬that signifies a record of the deeds and sayings
of Prophet Muḥammad. Two secondary sources are iǧmāʿ ( ‫ )الا �ج �م�ا‬or consen-
‫ق‬ ‫ع‬
sus doctorum and qiyās (‫ )ا �ل����ي���ا ��س‬or conclusion by analogy.

3 The Primary Sources

3.1 The Qurʾān

From an Islāmic perspective, the Qurʾān is the highest and textually undisput-
ed source of Islāmic law. Muslims agree that it contains all the revelations of

Gabriel ( Jibrīl or ‫) ج���برا ئ�ي��ل‬, proclaiming among other things Allah’s command-
Allah to the Prophet Muḥammad during the course of ca. 23 years by the angel

‫)ا �ل‬, the Holy Book is

ments and prohibitions to all creatures.
According to Qurʾān 15:9 (Sūrat al-Hiǧr (The Rock)‫ح�� ج�ر‬ �
unlike other sources of Islāmic law in that it is derived from and preserved by
Allah. This verse is usually taken to mean that the Qurʾān is protected against
falsification and, therefore, the authenticity of the text must not be called into
question.

4  John L. Esposito, Islam: The Straight Path, Ch. 2: ‘The Muslim Community in History’’ (Oxford:
Oxford University Press, 1988) 37-67.

arab law quarterly 31 (2017) 163-186

168 Bammarny

‫)��سور� ا �ل‬: ‫ة‬

Qurʾān 15:9 (Sūrat al-Hiǧr (The Rock) ‫ح�� ج�ر‬
�
Indeed, it is We who sent down the Qurʾān and indeed, We will be its
guardian.
َ‫َ ُ �َلَ ف �ظُ ن‬ َّ َ ْ ّ‫نَّ نَْ ُ نَ�زَّْ نَ ذ‬
�‫ح�ا ِ���و‬� ‫�ل�ه‬ ‫�ر َو ن�ا‬
‫ح� ن� � ��ل��ا ا �ل�� ك‬
� ‫�ا‬
�
ِ‫ِ �إ‬ ِ‫�إ‬
However, Qurʾānic texts are usually general and often ambiguous or open
to interpretation. Therefore, in reality, there is no consensus (iǧmāʿ) on its
interpretation.
According to traditional Islāmic theology, translation of the Qurʾān is for-
bidden, since any translation would represent an interpretation. It is interest-
ing to note that even the Qurʾān itself reports on the problem of Qurʾānic text
interpretation so Islāmic scholars and theologians cannot deny that this prob-
lem exists.
‫ة‬ ‫ن‬ ‫آ‬
Qurʾān 3:7 (Sūrat al-ʿImrān (Family of ʿImrān) �‫) � ل �ع�مرا � ��سور‬:
He is Who sent down upon you the Book, whereof are clear verses that
are the Essence of the Book, and others cosimilar. So, as for [the ones]
in whose hearts is swerving, they ever follow whatever [parts] of it are
cosimilar, seeking temptation, and seeking its interpretation; and in no
way does anyone know its interpretation except Allah. And the ones firm-
ly established in knowledge say, ‘We have believed in it; all is from the
Providence of our Lord’. And in no way does anyone constantly remem-
ber except the ones endowed with intellects.

ٌ‫�ُ ُ �تَ شَ َ ت‬ َ‫�ْ َكَ تٌ ُ نَّ أُ ُّ ْ تَ َأُ خ‬ ‫م‬

ُّ ٌ َ‫ُ َّ َ أَ َ َ َ َ َ ْ تَ َ ْ آ‬
‫�ا � �م ن���هُ � �ا ت‬ ْ ‫ن�ز‬ َ
� ‫� و� ر �م�����ا بِ���ه�ا‬ ِ‫ب‬ ��ِ‫� ح��م�ا � �ه�� � �م ا �ل ك‬
‫�ا‬ ‫�هو ا �ل ذِ�� �ي� � � ل ع��لي��ك ا �ل كِ�� ب ِ ي‬
ْ‫ْ َ ْ َْ ْ َ َأ‬ َ
َ ْ َ َ َ‫فَأ َّ �َّ � نَ ف ُق ُ ْ َ ْ ٌ فََ�تَّ ُ نَ َ ت‬
‫ي� �ِ�ي ��لو������م �ز �ي�غ �ي�����عو� �م�ا � ش����ا ب��هَ �ِم ن���هُ ا ب�تِ��غ��ا ء ا �ل��فِ����ت ن��ِ��ة َوا ب�تِ��غ��ا ء ت�� و�ي�ل� َو�م�ا‬ ��ِ‫�� �م�ا ا ل ذ‬
ِِ ِ‫ب‬ ِ‫بِ ه‬
َّ َّ‫َ َّ َ هَِ ذ‬ ّ ٌ
ّ ُ ّ‫َ ْ َُ تَأ َ ُ َّ � َّ ُ َ ّ ��سخ ن ف� � ق � ن ن‬
َ َ ‫آ‬ َ ُ ُ َ ْ ْ َ ُ َ ْ
ُ� � َ ‫� نْ � ن �ن‬ � � ‫ا‬ ‫ا‬ � ‫ا‬ ‫ا‬ ‫ل‬ �
‫ك‬ �� � ‫ا‬
�‫م‬ ‫ا‬
��
‫بِهِ ل ِ � عِ دِ ربِ و ي ر‬ ��� �‫م‬ ‫ك‬
� � ‫ا‬
���‫م‬ ‫ل‬ �� �
� �
�‫و ر ِ و� ِ�ي ِ ي وو‬ ‫ع‬
‫��ل‬ �‫ل‬ � ‫ل‬ ‫�ه‬ ‫�ل‬�
‫ل‬ ‫ا‬ ‫�ه‬
‫ل‬ � �� ‫��ع��ل‬
‫ِم‬ ِ‫ي م ِوي �إ‬
َ َُ
َ‫ل ّ �أ ْ�لُ اْ ال أ �ْ�ل��ا‬
ِ‫�إِ ا وو � ب ب‬
�

3.2 The Sunna

The Sunna is a compilation of the recorded statements and actions of Prophet
Muḥammad, who lived from 570 to 632 AD. The Sunna, which constitutes the
second most important source of Islāmic law, offers room for interpretation.
However, records of prophetic statements are much more problematic than
Qurʾān texts, which are regarded as trustworthy. Therefore Muslims have no

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 169

reason to doubt the applicability of Qurʾān texts, while widespread doubt re-
mains about the authenticity of many recorded statements of the Prophet.
Moreover, many of these statements not only sometimes contradict the Qurʾān
but can also be mutually contradictory. Radical Islāmic groups commonly rely
strongly on selected statements that are not widely regarded as authentic.
Islāmic schools of law hold differing views on how to assess the Sunna. The
Islāmic camp is split between the Shīʿas and Sunnis who both rely upon differ-
ent sources for what they believe to be traditional Sunna. Thus the Shīʿas ques-
tion the trustworthiness of the Sunni’s essential narrators with regard to the
Sunna and recognize only the traditions of the Prophet’s family, or individuals
from his lineage. Moreover, Islāmic jurists at Medina, the cradle of Islām, have
claimed that the Sunna was falsified in Mesopotamia, where Islāmic law was
mainly shaped.

4 Secondary Sources

Igmāʿ (Consensus Doctorum or ‫)الا �ج �م�ا‬

‫ع‬
4.1
The basis of consensus doctorum as a legal source are the following statements
of Prophet Muḥammad: ‘My nation or community will never be in agreement
in a mistake’. ‘What the Muslims find good, is also good with Allah’.5
These statements are seen as proof of a democracy and recognition of pop-
ular rule in Islām.6 However, there is no consensus on iǧmāʿ in Islāmic law.
Islāmic legal doctrine distinguishes between explicit and implied iǧmāʿ. It is
explicit when all jurists unanimously decide on a legal issue. It is regarded as
implied when some jurists unanimously represent an opinion and all the oth-
ers neither agree nor contradict it. Implied consensus is to some extent rightly
questioned, because it is often assumed that iǧmāʿ is given, although in many
cases it does not actually exist.
In the opinion of Ibn Ḥanbal, founder of the Ḥanbalī school, iǧmāʿ only
existed during the first four Caliphates following the Prophet’s demise, in

5  Husamudin Alsgnafy, Al-Kāfī fī sharḥ al-Bazūdī, (�� ‫ود‬ ‫��ا ف� ف� �ش�� ا �ل��ب�ز‬
� ‫ا �ل‬: The Sufficience
‫ي‬ ‫ك �ي �ي رح‬
‫ة‬ ‫ ال �م�ا ف� ا � ش ة‬Consensus in Islamic
of al-Bazūdī’s explanation), (Riyadh: Maktabat al-Rasheed Publishers, 2001) 1604; Ali Abdel
Raziq, Al-Iǧmāʿ fī al-sharīʿa al-islāmiyya (����‫ل���ر�ي�ع�� الا ��س�لا �مي‬
‫ا �ج ع �ي‬
Sharia). Cairo: Dār al-Fikr al-ʿArabī Publishers, 1947) 34.

‫قة‬ ‫�خ� ا ف���ة �تط �ه�ا � ت�ل� �ص���� � �ص����ة‬

� ‫فق‬
6  ʿAbd al-Razzāq al-Sanhūrī, Fiqh al-ḫilāfa wa taṭawuruhā li taṣbaḫ ʿuṣbat umam šarqīya
( ����‫ا �م��م �ش��ر�ي‬ ‫������ه ا ل ل و ��ور ��� بح ع��� ب‬: Caliphate Jurisprudence and its Evolution to
Becoming a League of Oriental Nations], 4th edn. (Damascus: Muasasat al-Risāla Publishers,
2000) 68.

arab law quarterly 31 (2017) 163-186

170 Bammarny

particular during the reigns of the first two Caliphs Abū Bakr and ʿUmar. This
view contradicts that of the Shīʿas who only recognize the fourth Caliph, Alī,
due to his familial relationship with the Prophet. Other Caliphs are not rec-
ognized by Shīʿa jurisprudence. Shīʿas prefer the lineage of the Prophet in
political as well as legal matters. Therefore, iǧmāʿ is for the Shīʿas exclusively
conformity sustained under the lineage of the Prophet. They rely on the Qur’ān
to maintain this position:
‫ة‬
Qurʾān 33:33 (Sūrat al-Aẖzāb (The Allied Parties) �‫ح�ز ا ب‬
� ‫)��سور� الا‬
͘
Allah intends only to remove from you the impurity, O people of the
[Prophet’s] household, and to purify you with purification.
ْ�َُ ّ ََُ َْ ْ َ ْ َ‫نَّ َ ُ ُ َّ ُ ُ ذْ َ َ ن ُ ُ ّ ْ َ أ‬
ً َْ
‫�ت���ط� ي��را‬
‫ك‬
‫�ط�هر م‬
� ��� ����‫� ا �ل ��� � �ه� ا ��ل‬�‫�إِ ����م�ا ي�ِر�ي�د ا �ل��ل�ه ��لِي��� ِ�ه� ب� �ع�� ك‬
ِ ‫م ِر ج س ل ب �ي تِ وي‬
ِ‫ه‬
َْ ْ َ ْ َ‫أ‬
The expression “people of the house” (ahl al-bayt, ��‫ ) � �ه�ل ا ��لب���ي‬is taken by Shīʿas
ِ‫ت‬
to mean the line of descent from the Prophet. In the opinion of Mālik, founder
of the Mālikī school, iǧmāʿ is only permissible if the scholars of Medina are in
agreement. His argument is the statement of the Prophet: ‘Medina is good and
banishes evil’.
According to another view, iǧmāʿ is allowed when Islāmic jurists reach a
uniform agreement on an issue during a particular era. Despite this dispute,
iǧmāʿ is considered by Islāmic jurists to be extremely important and a ‘key’
for the development of Islāmic law. In the Islāmic tradition, iǧmāʿ (consensus
doctorum) is considered the third source of law after the Qurʾān and the Sunna.
However, the fact that Islāmic jurists have never reached agreement on the
concept of iǧmāʿ indicates that consensus has never and in fact cannot truly
exist.
It has always been impossible to know all the opinions of Islāmic scholars
worldwide, whether during the period in which camels and donkeys were the
main means of transportation or during the age of electronic networking.
Aside from the fact that there is no consensus on whether an agreement exists,
one cannot speak of a legal source that can be overturned by a single dissenting
scholarly opinion. Dissenting opinions have and will always exist. Therefore, it
should be noted that, in the interest of legal certainty iǧmāʿ should not be con-
sidered a source of law.
‫ق‬
Qiyās (Conclusion by Analogy, ‫ )ا �ل����ي���ا ��س‬and Iğtihād (Independent
Reasoning or Finding Justice, ‫)الا ج�ت����ه�ا د‬
4.2

The concept of the use of analogy (qiyās) for drawing a conclusion exists in all
schools of Islāmic law, albeit to varying degrees. The most influential Islāmic

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 171

school, namely the Ḥanafī school, has applied analogy most frequently to
reach conclusions.
Unlike modern legal systems, Islāmic law is neither codified nor detailed.
Therefore, in the Islāmic legal system, practicing lawyers are granted leeway
to pursue creative legal processes using the aforementioned sources of Islāmic
law, thanks to the concept’s generality and incompleteness. Consequently, dif-
ferent interpretations of the same text in relation to the same situation are
possible. Different interpretations were common throughout history and the
same applies today.
Simultaneously, the primary sources of the Sharīʿa, which often need clari-
fication, are valued differently by Islāmic jurists. Regarding our subject, there
is also no difference and, hence, today, there are differing views and even radi-
cally diverging opinions whether Islām is only a religion or whether Islām is
entitled to claim the authority of state rule.7

5 Divergent Approaches to Government in Islām

5.1 Islām Presupposes No Claim to Government

Today, as in the past, there is a strongly held view that the religion of Islām
presupposes no claim to government or state rule. This view was represent-
‫خ‬
ed above all by the historical movement called Khawariǧ (literally ‘those who
went out’, ‫)�وا ر�ج‬, a religious political opposition movement originating dur-
ing the 1st century Hijra, or the 7th century AD, in what is today Iraq. Although
this was the only movement that positioned itself in most cases clearly against
the idea of an Islāmic Caliphate,8 nowadays representatives of the idea of an
Islāmic State are commonly called Khawariǧ. Some radical groups among
modern-day Khawariǧ share a number of features with today’s radical militant
‫ )ا ا �ض ة‬are often described in literature as succes-
Islāmic movements, namely the intemperate use of violence.
The Ibadi or Ibādiyya (����‫�� ي‬ �‫ب‬
sors or the only remaining group of Khawariǧ.9 The Ibādiyya movement, which
is also considered an Islāmic School of Jurisprudence, originated in the 7th

7  John. L. Esposito, Rethinking Islam and Secularism, 13, online at http://www.thearda.com/rrh/

papers/guidingpapers/Esposito.pdf, accessed 10 April 2016.
8  Tāj al-Dīn Abū al-Fatḥ Muḥammad ibn ʿAbd al-Karīm al-Šahrastānī, Al-Milal wa l-niḥal (‫ا �ل���م�ل�ل‬
�����‫وا �ل ن‬: The Book of Sects and Creeds), manuscript from the 12th century, 2nd edn. (Beirut:
‫ح�ل‬
‫ف‬
9  Ibid., 107, 131; Muḥammad Salām Madkūr, Manāhiǧ al-iǧtihād fī l-islām ( � ‫�م ن���ا ج�ه الا ج�ت����ه�ا د‬
Dār al-Kutub al-ʿIlmīya, 1992) 108, 119.
‫�ي‬ �
‫الا ��س�لا �م‬: Schools for Independent Reasoning in Islām), (Kuwait: Kuwait University Press,

arab law quarterly 31 (2017) 163-186

172 Bammarny

century AD in Iraq. Nowadays the Ibādiyya school of jurisprudence, is domi-

nant in Oman. Furthermore, there are smaller Ibādiyya communities in North
Africa, namely in the Algerian M’zab, on the Tunisian island Djerba; in Libya
in the Nafusa Mountains; and in the city of Zuwarah; as well as on the island of
Zanzibar in the Indian Ocean.
Ideas upheld by the Khawariǧ were represented and restated by the Egyptian
Islāmic scholar and Sharīʿa judge Ali Abdel Raziq (1887-1966 AD/1304-1386 AH).

‫ )الا ��س�لا �م وا �صول ا �ل‬published in 1925 AD (1343 AH), sparked a

His book, entitled Islām and the Foundations of Governance (Al-Islām wa uṣūl
al-ḥukm, ‫�م‬ �
�‫ح ك‬
huge debate, in particular because this book was published only two years
after the collapse of the Ottoman Caliphate.10 Before that time, the Ottoman
Empire had been called the ‘’sick man of the Bosporus” or the “sick man of
Europe”. As a result of this publication, the Islāmic al-Azhar University in Cairo
decided to refute the author’s qualification as an Islāmic scholar. He was dis-
missed from office as a Sharīʿa judge, although the arguments expressed in his
work had relied on the main sources of Islāmic law, the Qurʾān and Sunna.
These ideas have been carried forward to date by other scholars.11
Indeed, a number of Qurʾānic texts can be interpreted in this sense, as for
example the following:
‫ة‬
Qurʾān 17:54 (Sūrat al-Isrāʾ (The Night Journey) ‫)��سور� الا ��سرا ء‬:
Your Lord is most knowing of you. If He wills, He will have mercy upon
you; or if He wills, He will punish you. And We have not sent you,
[O Muḥammad], over them as an agent.
ً َ ْ ْ َ َ َ َ‫ن َ شَ أْ ُ َ ذّ ْ ُ ْ َ َ أَ ْ َ ْ ن‬
َ ُ ْ َ َ ْ‫َ َ أ‬ َ ُ
‫كلا‬ ْ ‫� ْ �أ‬ ‫ح‬ْ ‫َّّ ُ ْ أ ْ َُ ُ ْ ن ش‬
��‫�م و�م�ا � ر��س��ل��ا ك ع��لي������م وِي‬
‫�م �إِ � ي����� ي�ر �م ك�م و‬
�‫�إِ � ي����� �ي�ع ِ�� ب� ك‬
�‫�م � ع��ل �بِ ك‬
�‫رب� ك‬
ِ‫ه‬ ‫م‬
Qurʾān 42:48 (Sūrat al-Šūrā (The Consultation) ‫ل���ور �ى‬‫)��س �ة ا � ش‬:
‫ور‬
But if they turn away—then We have not sent you, [O Muḥammad],
over them as a guardian; upon you is only [the duty of] notification. And
indeed, when We let man taste mercy from us, he rejoices in it; but if

‫ة‬ ‫ذ‬ ‫أ خ‬
1974) 717; Muḥammad Abū Zahra, Tāriḫ al-maḍāhib al-islāmīya (����‫ ت�� ري� ا �ل���م�� ا �ه� ب� الا ��س�لا �مي‬:
�
The History of Islamic Schools), (Cairo: Dār al-Fikr al-ʿArabī, 2009) 52.
10  See: Ali Abdelraziq, Islam and the Foundations of Political Power (London: Edinburgh
University Press, 2012).
11  See: Abdullahi Ahmed an-Naʿim, Scharia und säkularer Staat im Nahen Osten und Europa
(Berlin: Europa im Nahen Osten—Der Nahe Osten in Europa, Wissenschaftskolleg zu
Berlin, 2009); Mahmoud Mohamed Taha, transl. and introd. by Abdullah Ahmed an-
Naʿim, The Second Message of Islam (Syracuse: Syracuse University Press, 1987).

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 173

evil afflicts him for what his hands have put forth, then indeed, man is
ungrateful.
َ‫فَ نْ أَ ْ َ ُ ف�ََ أَ ْ َ ْ نَ َ َ َ ْ ْ َ ف �ظ ً نْ َ َ ْ َ َّ َْ �غُ َ نَّ �إِ�ذَ أَ �ذَ ْقن‬
‫ح��ِ��ي�����ا � ع��لي��ك لا ا ��لب��لا و �ا ا � ����ا‬ � ‫� وا �م�ا � ر��س��ل��ا ك ع��لي������م‬ ‫�� � � �عر �ض‬
ِ‫�إ‬ َ ِ‫�إ‬ ِ‫�إ‬
ْ ‫�إِ ن َ نَ َّ َ ْ َ ةً فَ َ َ َ ن تُ ْ ُ ْ َ ّ َ ةٌ َ َق َّ َ ْ أ‬
ِ‫ه‬
َ‫ْ فَ نَّ ن َ ن‬
� �� ِ‫�� ب����ه���م ��س�ِ�ي ئ��� بِ����م�ا ��د �م� ت� � ي�د‬
� ‫ي�هِ���م ��إِ � ال�إِ ���س�ا‬ ِ‫ال ���س�ا � �ِم ن���ا رح�م�� �ر بِ���ه�ا و � ���ص‬
ِ‫�إ‬ ‫ِح‬ ِ‫َ�إ‬
ٌ ُ‫�ف‬
‫ك����ور‬
Qurʾān 88:21, 22 (Sūrat al-Ġāšiya (The Overwhelming) ����‫)��سور� ا �ل��ا ش�����ي‬:
‫ة �غ ة‬
So remind [O Muḥammad]; you are only a reminder. You are not over

ْ َ َ َ‫نَّ َ أَ ن تَ ُ ذَ ّ َّ ْ ت‬
them a ruler.
ّ َ‫فَ ذ‬
ْ�
‫�ر �ل����س�� ع��لي���هِ���م بِ����م����سي����طر‬
‫����م�ا � �� �م�� ِك‬
ِ‫�إ‬ ‫��� ِكر‬
Moreover, reference can be made to the negative experience with theocracy,
or the rule of religions. However, the era during which Muḥammad lived and
led the early Muslims is not seen as a time of political rule, because state struc-
tures in the present sense were then absent.

5.2 Islām Claims State Rule

The prevailing opinion among the majority of Islāmic scholars is that Islām
is a comprehensive religion which regulates all areas of life. According to this
majority, which does not amount to a juristic consensus in opinion (see 4.1.
above), Islām is thus also entitled to claim state rule in order to implement
and practice its rules of law.12 The advocates of this opinion refer to the pri-
mary sources of Islāmic law, the Qurʾān and the Sunna. In this context, several
Qurʾānic verses are cited to support this view, such as the following.

‫الا ��س� ا �م ف�� ف‬: Islam and the

‫�ل��س����ة ا �ل‬
12  Ayatollah Ruholla Khomeini, Islamic Government (New York: Manor Books, 1979) 18 et seq.;
Muḥammad ʿAmāra, Al-Islām wa falsafat al-ḥukm (‫�م‬ �‫ح ك‬ � ‫ل و‬
‫ةف‬ ‫ ا �ل�د � ن‬: Religion and
Philosophy of Government), 2nd edn. (Beirut: Al-Musasa al-ʿArabīya Press, 1979) 49; ʿAbd
al-Razzāq al-Sanhūrī, Al-din wa l-dawla fī l-islām (‫ي� وا �ل�د و�ل�� � الا ��س�لا �م‬
‫�ي‬
‫ف‬ ‫ة ق ن ة �ظ‬
l-qānūnīya wa l-niẓām al-siyāsī fī l-islām (‫ ا �ل�د و�ل�� ا �ل�����ا �ون�ي��� وا � ن�ل����ا �م ا �ل����سي���ا ��س� � الا ��س�لا �م‬:
State in Islam) (Cairo: Maǧalat al-muḥāmāt al-šarʿīya, October 1929) 8; H. Munir, Al-Dawla
‫ي �ي‬
‫فق‬
The Legal State and Political System in Islam) (Baghdad: Dār al-ʿArabīya li-ṯ-Tibāʿa, 1978)
55; Tawfīq Muḥammad al-Šāwy, Fiqh al-ḥukūma l-islāmīya baīna l-sunna wa l-šīʿa (‫������ه‬
‫� �م��ة الا ��س�لا �م����ة ��� ن ا �ل����سن����ة ا � ش‬
‫ل��������ع��ة‬ �
‫ ا ل‬: Jurisprudence of the Islamic State between Sunnis
�
‫و ي‬ �‫ي بي‬ ‫ح كو‬
and Shiʿites) (Beirut: Al-ʿAṣr al-Ḥadiṯ Press, 1995) 161.

arab law quarterly 31 (2017) 163-186

174 Bammarny

‫ة �ن‬
Qurʾān 4:59 (Sūrat al-Nisāʾ (The Women) ‫)��سور� ا �ل���س�ا ء‬:
O you who have believed, obey Allah and obey the Messenger and those
in authority among you. And if you disagree over anything, refer it to
Allah and the Messenger, if you should believe in Allah and the Last Day.
That is the best and best in result.

ُ ‫أَ ْ ن‬ ُ‫َ أَ ُّ َ َّ آ َ ْ أَ ُ ْ َ أَ ُ ْ َ ُ َ أ‬
ْ ُ‫� ْ ف�َ ن ت�َنَ �زَ �ْ �ت‬ َ ّ َ َّ ُ َ‫� � ن‬
‫ي� � �م ن��وا � ِطي���عوا ا �ل��ل�ه و� ِطي���عوا ا �لر��سول و� و لِ�ي ال� �مِر ِم�� م ��إِ � ��ا ع� ���م‬
�
‫ك‬ � ��ِ‫ي�ا � ي���ه�ا ا ل ذ‬
َ ‫آ‬ ْ َ ُ ُ َ َ ُ
ّ
ٌْ ‫خ‬َ َ ‫�ذ‬ ْ َ َ ّ ‫ف� �ش�َ� ْ ء ف� د هُ �إِل ا �ل�ّ�ل� َ ا �ل ّ�ُ�س ل ن� �ك� �ت ْ ت ْ�ؤ نُ ن‬
َ ُ ‫�ن‬ َ ُ َ
‫�� ���م � �ِم��و� بِ�ا �ل��ل�هِ وا ��لي�و�ِم ال� خِ�ِر �ِل�ك �ي��ر‬ ِ‫ِ�يأَ ي� ٍ ْر و ى هِ و ر وِ �إ‬
ً ‫َ ْ َ نُ تَأ‬
‫ح����س� �� و �لا‬ � �‫و‬
‫ِي‬
‫ة‬ ‫ة‬
Qurʾān 5:50 (Sūrat al-Māida (The Table) � ‫)��سور� ا �ل���م�ا ئ��د‬:
Then is it the judgement of [the time of] ignorance they desire? But who
is better than Allah in judgement for a people who are certain [in faith].
ْ َ‫أَ فَ�ُ ْ َ �َْ َّ ة َْ �غُ نَ َ َ نْ أ‬
َ‫ُ ًْ ّ قَ ُ ُ ن‬
ُ‫ح��َ��س ن‬ َّ َ‫ن‬
�‫��م�ا ِ�ل���� ْو�ٍم �يو�قِ ن��و‬
� ‫حك‬ ‫ح ك� ل‬
� � ��‫�م ا ج��ا ِ�ه� لِ��ي�ِ�� ي�ب��و� و�م‬
�ِ‫ا �ل��له‬ ��
��‫�ِم‬
‫ة �ن‬
Qurʾān 4:65 (Sūrat al-Nisāʾ )The Women) ‫)��سور� ا �ل���س�ا ء‬:
But no, by your Lord, they will not believe until they make you [O
Muḥammad], judge concerning that over which they dispute among
themselves and then find within themselves no discomfort from what
you have judged and submit in submission.
َ ْ ُ َ َ َّ ُ‫َْ نَ ُ ْ ث‬ ُّ َ ُ َّ َ َ‫فَ َ َ ّ َ َ ُ ْ ُ ن‬
ْ ُ‫أ ن ف‬ ََ�َ��‫��م َك ف�� � َ��م�ا ش‬
�‫��د وا ف‬
� �‫حت� َ ي‬ ‫�ؤ ن‬ َ
‫� ��������سِ ����م‬
ِ‫ه‬ ‫ح ِك و ِ �ي‬
‫ب���ي���ه���م �م لا ي جِ ِ�ي‬
‫جر‬ �
‫��لا ورب�ِ�ك لا ي� �ِم��و� � ى‬
ً ْ َ‫�َ ً ّ َّ �َق َ ْ َ ُ َ ُّ ْ ت‬ َ
‫� ��ي� ت� َو�ي��س�ِل�موا ���س�لِ��ي���م�ا‬
‫حر ج��ا �ِم���م�ا ���ض‬
‫ة �ن‬
Qurʾān 4:105 (Sūrat al-Nisāʾ (The Women) ‫)��سور� ا �ل���س�ا ء‬:
Indeed, We have revealed to you [O Muḥammad], the Book in truth so
you may judge between the people by that which Allah has shown you.
And do not be for the deceitful an advocate.
َ‫�ّْ خَ � ن‬ َُ َ َ ُ َّ َ َ َ‫َ أ‬ ُ ْ َ ّ َْ َ َ‫َّ أَ َ ْ نَ َ ْ َ ْ ت‬
‫�� ن‬ ‫ا ��لنّ�َ�ا �� ����م�ا � ا ك ا �ل��ل�ه لا ت‬ َ‫�َ َ ْ ن‬
� �����‫ح ق� �لت‬
‫�ل‬ ��ِ‫ن�ا � �ن�ز ��ل��ا ��لي��ك ا �ل ك‬
���‫ِل��ل����ا ئِ�نِي‬ � ‫و‬‫ك‬ � ‫سِ بِ ر‬ ���‫ح كم ب�ي‬ ِ ِ � ‫�ا ب� بِ�ا‬ ِ‫�إ‬ ِ‫�إ‬
ً َ‫خ‬
‫�� ��ي���م�ا‬
ِ‫���ص‬

��‫)��سور� ا �ل�������ص‬:
Qurʾān 28:77 (Sūrat al-Qiṣāṣ (The Stories) ‫�ص‬
‫ة ق‬
But seek, through that which Allah has given you, the home of the
Hereafter; and [yet], do not forget your share of the world. And do good

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 175

as Allah has done good to you. And desire not corruption in the land.
Indeed, Allah does not like corrupters.
ْ َ‫�َ أ‬
َ‫ح��َ��س ن‬ َ ْ َ‫َ َْ ف َ آَ َ َّ ُ َّ َ آ ةَ َ َ �ن َ نَ َ َ َ ُّ َْ َأ‬
‫� ��ي��ك �م� ن ا �ل�د ن���ا و� � ن‬ ‫ت‬ َ ‫ت‬ ‫ت‬
‫ك‬ ‫وا ب���غِ ِ���ي���م�ا � �ا ك ا �ل��ل�ه ا �ل�د ا ر ال� خِ�ر� ولا ����س ���صِ ب ِ � ي‬
� � � ‫ح���سِ�� �م�ا‬
َ‫� ُّ �ْ ُ فْ � ن‬ �
ُ َ َّ َّ‫ن‬ ْ َ‫َّ ُ �َ ْ َ َ تَْ ْ فَ َ َ ف� أ‬
�‫ا �ل��ل�ه �إِ �لي��ك ولا �ب��غِ ا �ل������س�ا د ِ�ي ال� ر ضِ� �إِ � ا ل��ل�ه لا يحِ� ب� ا ل���م���� ِ��س�دِ ي‬
� �

According to advocates of Islāmic State rule, Islām regulates the state rule, in

‫)ا � ش‬. The Qurʾān and Prophet Muḥammad’s

particular by some basic principles concerning the state organization, as for ex-
ample consultation (al-Šūrā, ‫ل���ور �ى‬
Sunna encourage people to decide their affairs in consultation with those who
will be affected by the decision.
Qurʾān 42:38, entitled al-Šūrā, suggests that Šūrā is a praiseworthy life style
of a successful believe, and also suggests to consult wise people. It says:

‫)��س � ا � ش‬: ‫ة‬

Qurʾān 42:38 (Sūrat al-Šūrā (The Counsel) ‫ل���ور �ى‬ ‫ور‬
Those who hearken to their Lord, and establish regular Prayer; who [con-
duct] their affairs by mutual consultation among themselves; who spend
out of what We bestow on them for Sustenance [are praised].
َ ُ ‫َ َّ نَ ْ َ َ ُ َّ ْ َأَ َق‬
ْ ُ َ‫َّ ةَ َ أ ْ ُ ْ ُ َ َْ َ ُ ْ َ َّ َ �زَ ْق‬
‫ي� ا ����ست���� ج��ا ب�وا ِ�لرب������م و� ��ا �موا ا �ل���ص�لا � و� �مُر�ه���م �ش��ور �ى ب���ي ن���ه���م و�ِم���م�ا ر � ن���ا �ه���م‬� ��ِ‫وا �ل ذ‬
ِ‫ِ ه‬ َ‫ُن ف قُ ن‬
�‫ي��ِ������و‬

The 159th verse of the 3rd Sūra commands Muḥammad to consult with be-
lievers. The verse makes a direct reference to those [Muslims] who disobeyed
Muḥammad, indicating that ordinary, fallible Muslims should be consulted. It
says:
‫ن‬ ‫ةآ‬
Qurʾān 3:159 (Sūrat al ʿImrān (Family of Imran) � ‫) ��سور� � ل �ع�مرا‬
Thus it is due to mercy from Allah that you deal with them gently, and
had you been rough, hard hearted, they would certainly have dispersed
from around you; pardon them therefore and ask pardon for them, and
take counsel with them in the affair; so when you have decided, then
place your trust in Allah; surely Allah loves those who trust.
َ َ ْ‫فَ َ َ ْ َ ة ّ نَ َّ �ن تَ َ ُ ْ ََ ْ ُ�ن تَ فَ �ظّ ً �غَ �ظَ ْ قَ ْ َ ن فَ ُّ ْ ن‬
‫ح ْو�لِ�ك‬ � �‫� وا �م‬
� َِ ‫� لا ��������ض‬
ِ‫ب‬ �‫���بِ���م�ا رح�م��ٍ �ِم�� ا �ل��ل�هِ ِ�ل� �� ��ل�ه���م و�لو �ك‬
�‫��� ����ا � لِ��ي��� ا �ل������ل‬
َ
َّ ََ ْ َّ َ‫فَ ْ فُ َ نْ ُ ْ َ ْ تَ �غْ ف ْ َ ُ ْ َ شَ ْ ُ ْ ف أ ْ فَ�إِ�ذَ َ�زَ ْ تَ فَت‬
� ‫��ا �ع��� �ع����ه���م وا ����س�����ِ��ر ��ل�ه���م و����ا ور �ه���م �ِ�ي ال� �مِر �� ا �ع �م�� ���و‬
�ِ‫كل ع��لى ا �ل��له‬
ِ ُ َ َّ َّ‫ن‬
َ‫� ُّ ا �ْ ُ تَ َّ � ن‬ �
��
‫ل‬
�‫وِ ِي‬‫ك‬ �� ‫��م‬ �‫ل‬ � ‫�إِ � ا �ل��ل�ه يحِ ب‬
�

arab law quarterly 31 (2017) 163-186

176 Bammarny

The term šūrā (counsel) in Islām is often described by Muslim scholars as an

Islāmic democracy. Indeed, however, this institution cannot be compared to
democracy in today’s sense, because only the ruler or the Caliph can appoint
the individuals who comprise the Shura Council. Moreover, the counsel of-
fered is not compulsory. The Caliph or ruler has in practice, absolute freedom
to follow or decline to take the advice.
In addition, the Qurʾān speaks about many prophets and envoys of Allah
who are also mentioned in the Bible. Two of these figures were prophets with
a divine mission according to the Qurʾān, and, at the same time, also kings and
thus state rulers, namely King David and King Solomon.
‫ة‬
Qurʾān 38:26 (Sūrat Ṣād (The Letter Ṣ) ‫)��سور� �ص‬:
[We said], O David, indeed We have made you a successor upon the earth,
so judge between the people in truth and do not follow [your own] de-
sire, as it will lead you astray from the way of Allah. Indeed, those who
go astray from the way of Allah will have a severe punishment for having
forgotten the Day of Account.
َ َْ
َ َ‫ح قّ َلا تَ���تّ� ا �ْ�له‬ َّ‫َ َ ُ ُ نَّ َ َ ْ نَ َ خَ فَ ةً ف أَ ْ فَ ْ ُ َ ْ نَ ن‬
�
‫ل‬ �‫ي�ا د ا و ود �ا ج���ع��ل��ا ك �� لِ��ي����� � ال� ر�� ��ا ح ك‬
�
‫ع � وى‬ ِِ‫�م ب�ي��� ا ��ل� سِ بِ ِ� و ب‬
� ‫ا‬
� �� ‫ا‬
� ِ‫ض‬ ‫ِ�ي‬ ِ‫�إ‬
َ ٌ َ‫� َّ �َ ُ ْ َ ذَ ٌ ش‬ َ ‫َّ نَّ َّ نَ َ ُّ نَ َ ن‬ َ ‫فَُ َّ َ َ ن‬
‫� �لو� �ع�� ��س��بِي��ل ا ل��ل�هِ �ل�ه���م ع�� ا ب� ����دِ ي��د بِ����م�ا‬ ِ‫�ي�����ض‬
ِ‫� �ل�ك �ع�� ��س��بِي��ل ا �ل��ل�هِ � ا �ل ذِ���ي� �ي���ض‬
ِ ِ‫�إ‬ ِ
َ ‫نَ ُ َ ْ َ �ْل‬
�
ِ‫���سوا ي�و�م ا حِ ب‬
� ‫ا‬
�‫��س‬

In Mecca, Muḥammad was only a prophet, but after his emigration to Medina
in 622 he also became a city governor.13 Therefore the Qurʾānic verses disclosed
in Mecca differ from those that were later revealed in Medina.14 However,
some of the Qurʾānic verses revealed in Medina speak against the theory of
state rule, such as:

‫ت��أ �خ‬: The

13  
A.T. Walker, The Caliphate (Oxford: Clarendon Press, 1924) 30; Abū Ǧaʿfar Muḥammad
ibn Ǧarīr al-Ṭabarī, Tarīḫ al-Ṭabarī, Tarīḫ al-rusul wa-l-mulūk (‫وا �ل���م��لوك‬ ‫ا �لر��س�ل‬ �‫ري‬
History of Messengers and Kings), Vol. 3, manuscript from 915 AD/302 AH (Damascus,
‫ت‬
�� ‫ن���ق���د‬
Beirut: Dār bin Kaṯīr, 2000) 147.
14  Muḥammad al-Ḫuḍarī, Naqd kitāb al-Islām wa uṣūl al-ḥukm (‫كا ب� الا ��س�لا �م وا �صول‬
‫ ا �ل‬: Rebutal of the Book Islam and the Foundations of Government) (Cairo: Al-Maṭbaʿa
�
�‫ح ك‬
‫�م‬
‫نق‬
al-Salafīya, 1926) 171; Al-Ṭāhir‫ ت‬bin ʿĀšūr, Naqd ʿilmī li kitāb al-Islām wa uṣūl al-ḥukm (‫������د‬
�
‫�م‬ ‫ل‬
�� ‫ا‬ �
��‫( )ع�ل�م ك‬Cairo: Maṭbaʿa al-Salafīya, 1925) 24.
‫ل�ا ب� الا ��س�ل �م وا �صول ا ح ك‬
‫�ي‬

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The Caliphate State in Theory and Practice 177
‫ة �ن‬
Qurʾān 4:80, 81 (Sūrat al-Nisāʾ (The Women) ‫)��سور� ا �ل���س�ا ء‬:
He who obeys the Messenger has obeyed Allah; but those who turn
away—We have not sent you over them as a guardian.
ً َ ْ ْ َ َ َ َ‫ف�ََ أَ ْ َ ْ ن‬ َّ َ َ َّ َ َ َ‫َّ ُ َ فَ َ ْ أ‬
َ‫َ َ ت‬ ُ ْ‫َّ ن‬
‫ح��فِ��ي���ظ���ا‬
� ‫�م�ا � ر��س��ل��ا ك ع��لي������م‬ ‫ق‬
‫ع ا �لر��سول ������د � ط�اع ا �ل��ل�ه و�م� ن� �و لى‬
ِ��
ِ‫�ي��ط‬ ��‫�م‬
ِ‫ه‬
And they say, ‘Obedience’. But when they leave you, a group of them
spend the night determining to do other than what you say. But Allah
records what they plan by night. So leave them alone and rely upon Allah.
And sufficient is Allah as Disposer of affairs.
َ َ‫ََ قُ �ُ نَ َ َ ةٌ ف�َ�إِ�ذَ َ�َ �زُ ْ � نْ � ن َ ََّ ت‬
ُ‫� َط�ا ���فَ����ةٌ �ّم نْ���هُ��� ْ �غَْ��َ ا �لّ�� � تَ���قُ�� ُ َ ا �ل�ّ�لَ�ه‬ �‫و�ي����ولو� ط�ا ع�� � ا ب ر وا ِم�� عِ ���دِ ك ب���ي‬
‫ل‬
‫ئِ َ ِ � ير ذِ ي� و و‬ ‫م‬
ً َ َّ َ‫َ ْ ُ�ت ُ َ َُّتُ نَ فَأَ ْ ض ْ َ نْ ُ ْ َتَ ََّ ْ ََ َّ َ ف‬
‫كلا‬��‫����ى �ا �ل��ل�هِ وِي‬ ‫ك ع�� ا �ل��ل� ك‬ � � ���‫�� � �م�ا ��� �� �� �ع � �ع���ه‬ ‫�ك‬
ِ‫ي ب� ي �ب �يِ و� ِر � � م و و ل لى هِ و ب‬

5.3 Appraisal. No Regulation of a Caliphate in the Qurʾān

The last Qurʾānic Sūra to be revealed announces that the foundation of Islām
as a religion, but not an Islāmic state, had been accomplished.
‫ة‬ ‫ة‬
Qurʾān 5:3 (Sūrat al-Māʾida (The Table), � ‫)��سور� ا �ل���م�ا ئ��د‬:
[. . .] Today I have completed your religion and I have perfected My favour
on you, and I am satisfied with Islām for you as a religion.
ً َ ْ ُ �ُ َ� ُ‫�َ ْ تُ �َ ُ� ْ نَ ُ� ْ َأَتْ َ ْ تُ َ َ ْ ُ� ْ ْ َ َ َ ت‬ َْ‫ْ َ أ‬
‫�م ال ��س�لا �م ِد ي�ن��ا‬
‫� ��ي�� ل ك‬ ‫�م و� ����م���م�� ع��لي� ك‬
ِ‫�م نِ��ع���م�� ور �ض‬ ‫[ ا ��ليَ� ْو�م � ك�م��ل�� ل ك‬. . .]
‫�م ِد ي�� ك‬
ِ‫�إ‬ ‫تِي‬
Furthermore, in the Qurʾān, while Muḥammad is never called king or presi-
dent but rather Allah’s Envoy or Messenger, Solomon and David are called King
or Caliph. Muslims have always referred to Muḥammad as a Messenger, both
in the past as well as today.
In this context, it is not intended to relate and interpret the quarrels over
different prophetic statements recorded in the Sunna because there is often
doubt about their authenticity. Moreover, they are sometimes mutually con-
tradictory and partly not in agreement with the first and primary source of
Islāmic law, i.e., the Qurʾān. These subsequent records and the statements
found therein mostly pose obstacles for the development and modernisation
of Islāmic law and offer room for radical views.

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178 Bammarny

6 Islāmic State and the Imamate with the Shīʿa

The Shīʿa form a minority in Islām, although they are in the majority in some
‫ل��������ع��ة ال ث�ن��ا � ش ة‬
‫ )ا � ش ي ا‬is by far the largest and most influential
present-day states such as Iran, Iraq and Bahrain. The Twelver Shīʿa (al-šiʿa
l-iṯnā ʿašariya: ��‫ع���ر�ي‬
Shīʿa group. It is called Twelver because its adherents believe in 12 great Imāms

Prophet. The 12th Imām was Muḥammad al-Mahdī (�� ‫��م�د ا �ل����م�ه�د‬ ‫ ) حم‬who was
or true Caliphs who were supposed to have been direct descendants from the
‫ي‬
born in the city of Samarra in Iraq in 869 AD (255 AH). In 874 AD (260 AH),
he entered into seclusion in the cellar of a mosque in Samarra. The Mahdī is
similar to a Messiah who still lives and will reappear one day to accomplish lost
justice on earth.
In fact, the story of the Mahdī is more a legend than a real event, but which
is taken as factual by common people. Even some Shīʿa intellectuals question
the basis of the story. The birth of the Mahdī and his concealment has not been
historically proven.15 It also contradicts the Sharīʿa that a child is accepted to
take the Imāmate or leadership of the Islāmic society. Someone who is legally
under aged is excluded from management.
Until the 1970s, the prevailing Shīʿa opinion was that Muslims should await
the Mahdī. When he re-appears, the rule of Islām will unfold worldwide. In
the 1970s, the Iranian Grand Ayatollah Khomeini (1902-1989 AD/1320-1409 AH)
positioned himself against this attitude, as he recounted in his book entitled
Islāmic Government, actually a collection of his speeches made during exile
in Najaf. He presented the notion that the Shiʿa might still have to wait many
centuries for the reappearance of the Mahdī and, hence, they must act rather
than idly wait forever. Before the Islāmic Revolution in 1979, Shīʿa exponents
of constitutional law and doctrine were largely ignored or not taken seriously.16
Khomeini himself was not taken seriously in the beginning, but he succeed-
ed in Iran by leading an Islāmic revolution and taking over the power of govern-
ment successfully in 1979 AD (1399 AH). The perception held by Khomeini was
also firmly included in the Iranian Constitution of 1979. Thus the Constitution
of the Islāmic Republic of Iran, 1979, Art. 5 provides:

During the Occultation of Imām Mahdī (may Allah hasten his reappear-
ance), the Imāmate and leadership in Iran devolve upon the Guardianship

‫ف‬
‫� ا �ل����س���ا ��س ا � ش‬ ‫ت‬
15  Aḥmad al-Kātib, Taṭwur al-fikr al-siyāsī al-šīʿī ( ‫ل�����ي���ع‬
‫�ي‬ �‫ ���طور ا �ل���� ك�ر ي ي‬: The Develop­
ment of the Political Shiʿite Thinking) (Damascus: Dār al-Ǧadīd, Damascus 1998) 147 et seq.
16  For example: Erwin I.J. Rosenthal, Political Thought in Medieval Islam (Cambridge:
Cambridge Univ. Press, 1958) 5.

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The Caliphate State in Theory and Practice 179

of the Islāmic Jurists, who are fair, pious, fully aware of the circumstances
of their age; courageous, resourceful, and possessed of administrative
ability, will assume the responsibilities of this office in accordance with
Article 107.

Since their coming to power during the Shīʿa revolution in Iran and the proc-
lamation of Iran as an Islāmic State, the Shiʿas have become very active. For
example, in Lebanon, the Shīʿa Hezbollah plays a central role in politics. In
Iraq, Shīʿa parties have also ruled for more than 10 years. In Yemen, Shīʿa groups
have also become the strongest political power.

7 Acceptance and Determination of a Caliph in History and Practice

‫خ فة‬‫ )ا �ل‬in Islām contains rules which concern
The institution of a Caliphate ( ��� ‫��لا‬
the Islāmic state organization, be these rules of constitutional law, adminis-
trative law or public finances. However, these rules neither contain consti-
tutional-juridical rules for the purposes of modern legislation nor Islāmic
jurisprudence. The fundamental rights and freedoms stand beyond this sphere.
There are also no rules concerning legislative powers which is only a compe-
tence of Allah. Hence, the authority of the Caliph, who cannot be the absolute
ruler, is limited to executive and judicial powers only.17 Allah was, is and re-
mains the Legislator and the main source of legislation is first the Qurʾān, i.e.,
Allah’s word, and second the Sunna, i.e., statements and traditions of Allah’s
Envoy Muḥammad. The second source or Sunna provides Allah’s orders and
prohibitions revealed to his Messenger Muḥammad.
‫ة‬
Qurʾān 53:3, 4 (Sūrat al-Nağm (The Star) ‫)��سور� ا �ل ن���� ج����م‬:
And in no way does he pronounce out of prejudice. Decidedly it is noth-
ing except a revelation revealed.
َ ُ ٌ ْ َ َّ َ ُ ْ‫ن‬ َ َ ْ َ ُ ‫َ َ َن‬
‫�هو �إِ لا و�ح�ي ي�و ى‬
�
‫ح‬ � ِ‫و�م�ا ي�� ِ��ط ق� �ع�� ا ��ل�هو�ى �إ‬
ِ‫ن‬
Indeed, as already mentioned, there has been much dispute about the authen-
ticity and assessment of the Sunna.18 In addition to the primary sources, there
is a secondary source, namely iǧmāʿ (consensus doctorum).

17   Al-Razzāq al-Sanhūrī, supra note 6, 60.

18  Bawar Bammarny, Treu und Glauben und UN-Kaufrecht (CISG). Eine rechtsvergleichen-
de Untersuchung mit Schwerpunkt auf dem islamischen Rechtskreis [Good Faith and the

arab law quarterly 31 (2017) 163-186

180 Bammarny

The primary sources of Islāmic law, the Qurʾān and Sunna, do not contain
specific provisions to govern an Islāmic Caliphate. However, a number of
Islāmic scholars specify certain requirements, such as justice.19 The word jus-
tice is mentioned frequently in the Qurʾān and is demanded in all actions. ‘The
Righteous’ is also one of Allah’s names. Even one’s enemies and opponents
should be treated justly as demanded by the Qurʾān.
‫ة‬ ‫ة‬
Qurʾān 5:8 (Sūrat al-Māida (The Table) � ‫)��سور� ا �ل���م�ا ئ��د‬:
O you who have believed, be constantly upright for Allah, witnesses with
equity and let not antagonism of a people provoke you to not do justice.
Do justice; that is nearer to piety. And be pious to Allah, surely Allah is
Ever-Cognizant of whatever you do.
ََ ْ ‫َ أَ ُّ َ َّ نَ آ َ نُ ْ ُ نُ ْ َق َّ نَ َّ شُ َ َ ْ ْ َ َ َْ َ نَّ ُ ْ شَ نَآ نُ َق‬
� �‫�و�وا �وا �ِمي��� �ل��ل�هِ �����ه�د ا ء �ا �ل��قِ����س ِ��ط ولا ي ج�ر�م�� ك‬ ‫ي�ا � ي���ه�ا ا �ل ذِ���ي� � �م��وا ك‬
‫�م �������� � و�ٍم ع��لى‬ ِ ِ‫ب‬ ِ
َ‫أَ َّ تَ ْ ُ ْ ْ ُ ْ ُ َ أَ قْ َ ُ َّقْ َ تَّقُ ْ َّ َ نَّ َّ َ خَ ٌ َ تَ ْ َ ُ ن‬
�‫� لا ��ع�دِ �لوا ا ع�دِ �لوا �هو � �ر ب� �ِل��لت��� َو�ى وا �����وا ا �ل��ل�ه �إِ � ا �ل��ل�ه � بِ��ي��ر بِ����م�ا ��ع���م�لو‬
The Caliph should be pious and respectable in his behaviour. According to Ibn
Khaldūn, the Caliph should be Muslim, adult and male.20 Some within the
Khawariǧ even considered it possible for a woman to be a Caliph.21 To some
extent, Islāmic scholars required that the Caliph be brave, wise, and an Islāmic
jurist. Some also assume that the Caliph should be a descendent from the
Quraysh tribe of the Prophet. However, this requirement is very controversial.22

  United Nations Convention on Contracts for the International Sale of Goods (CISG)—
A Comparative Law Study with Focus on Islāmic Countries] (Frankfurt a. Main: Peter

‫ة‬
19   Abū al-Ḥassan al-Māwardī, Al-Aḥkām al-sulṭānīya ( ���‫ط�ا ن�ي‬
Lang, 2011) 17.
�‫ا ح ك‬: On The Ordinances
��‫��ا �م ا �ل��س��ل‬
‫ن‬ ‫ �م��ق���د �م��ة ا � ن خ‬: Ibn Khaldun’s Introduction)
of the Government), manuscript from the 10th century (Beirut: Dār al-Fikr Press, 2001) 6.
20  Ibn Ḫaldūn, Muqaddimat ibn Ḫaldūn (�‫ب� ��ل�د و‬
(Cairo: Dār al-Faǧr, 2004 [Reprint from 1377]), 250.
21  Al-Razzāq al-Sanhūrī, supra note 6, 109.
22  Ibn Ḫaldūn, supra note 20, 246.

arab law quarterly 31 (2017) 163-186

The Caliphate State in Theory and Practice 181

Khawariǧ and the vast majority of Muʿtazila23 who are not descendants from
the Quraysh can be Caliph.24
In the Qurʾān and Sunna, procedures for electing or selecting a Caliph

‫ق‬
are missing. In this ‫ أ‬context, Islāmic literature mentions ahl al-ḥal wa-l-ʿaqd
� �
‫ل‬
�
(‫� �ه�ل ا ح�ل وا ل�ع�����د‬: enabled or to determine appropriate people) or those to
choose the Caliph. After the death of the Prophet, it was simply his Companions
who were considered ahl al-ḥal wa-l-ʿaqd.25
The practice of the Islāmic Caliphate reveals neither agreement nor unity
on how to select a Caliph. According to Sunnis, Prophet Muḥammad preferred
as Caliph Abū Bakr, who was Imām for Islāmic Prayers during his illness at the
end of his life.26
Shīʿas do not recognize these prophetic statements and refer to the Prophet’s
other statements regarding his cousin Alī and his son-in-law as the true Caliph,
or great Imām of the Muslims.27 Homage to Abū Bakr followed soon after the
death of the Prophet. Alī was not present at the homage as he was busy with
the burial of the Prophet, but he later paid homage to Abū Bakr as Caliph of
the Muslims.28 This shows how problematic the Sunna is as a second primary
source of Islāmic law, because thousands of supposed prophetic sayings that
are repeated as genuine are certainly not authentic and partly are self-contra-
dictory or inconsistent with the Qurʾān.
It is both astonishing and perplexing that after ca. 1400 years Shīʿas and Sunnis
still argue about who the true followers of the Prophet are. Unfortunately,
much blood is still being shed because of this dispute, which should only have
a place in history books.

23  The Mutazila school was formed in the 8th century in Iraq and flourished between the 9th
and 11th centuries. Today, this School has hardly any influence. Nowadays Islāmic schol-
ars who represent the opinions of Mutazila in public are rare. They are highly criticized
by contemporary Islāmic scholars and may be declared as being apostate. Well-known
Islāmic scholars in modern times representing the opinion of the Mutazila are Harun

‫قف‬
Nasution (Indonesia), Mohammed Arkoun (Algeria) and Nasr Hamid Abu Zayd (Egypt).
24  ʿAḍad al-Dīn al-Īǧy, Al-Mawāqif (���� ‫ا �ل���موا‬: The Attitudes), manuscript from 1316, 964, on-
line at http://www.islamicbook.ws/ageda/ktab-almwaqf-aliiji-.pdf, accessed 20 June 2015.
25  Al-Razzāq al-Sanhūrī, supra note 6, 119.

‫�ك ن‬
27  Muḥammad Ǧawād Muġnīya, Al-Šīʿa wa al-ḥākimūn (�‫��مو‬ ‫ل�����ي���ع��ة وا �لح�ا‬
‫ ا � ش‬: Shiʿites and Rulers)
26  Ibn Ǧarīr al-Ṭabarī, supra note 13, 15.

(Beirut: Al-Maktaba al-Ahlīya Press, 1961) 11, 216.

28  Ibn Ǧarīr al-Ṭabarī, supra note 13, 17.

arab law quarterly 31 (2017) 163-186

182 Bammarny

The second Islāmic Caliph, ʿUmar ibn al-Khaṭṭab, was nominated by the
Caliph Abū Bakr while he was critically ill.29 Caliph ʿUmar suggested a new
method for determining a Caliph after his death. ʿUmar formed a committee of
six people to choose the next Caliph from amongst themselves. The commit-
tee was made up of ʿUthmān ibn ʿAffān, Alī ibn Abī Ṭālib, Zubayr ibn al-ʿAwān,
Ṭalḥa ibn Saʿad ibn Abī Waqqāṣ and ʿObaidullah. In addition, Caliph ʿUmar de-
termined that Abdullah ibn ʿUmar should be a consultant to the Commission,
but without a vote. Only when the six nominees could not agree on a candi-
date and when two halves of the Commission preferred a candidate each, then
Abdullah ibn ʿUmar would decide between the candidates. The Commission
declared ʿUthmān ibn ʿAffān as Caliph, whose appointment as the third Caliph
is still not recognized by the Shiʿa, who only recognize Alī as the true Caliph.30
This dispute about the Caliphate between Sunnis and Shiʿa would not exist if
the question of the Caliphate had been settled by Islām.
Caliph ʿUthmān was murdered in 655 AD (34 AH). The Muslims in Medina
chose Alī as the 4th Caliph by means of a homage.31 After some political unrest
during Alī’s Caliphate, he was killed in 660 AD (40 AH). Subsequently, Alī’s son
Hassan was declared Caliph in Kūfa in southern Iraq by homage.32 The influ-
ential governor of Damascus, Muʿāwiyah ibn Abī Sufyān, a relative of Caliph
ʿUthmān, neither recognized Hassan’s election nor the election of his father
Alī. He sent an army to Iraq which compelled Hassan to waive his Caliphate in
‫ة‬ ‫ )ا �لخ ف ة‬began in Damascus,
Kūfa. Muʿāwiyah was appointed Caliph by homage by the Muslims, and thus
the ʿUmawiyya or ʿUmayyad Caliphate (��‫��لا ��� الا �مو�ي‬
lasting from 662 to 750 AD (42-132 AH). In fact, the Islāmic Caliphate became a
hereditary monarchy. It is reported that Muʿāwiyah said in one of his speeches
that he had not become Caliph in order to enforce the provisions of Islām but
rather to rule.33 It can be concluded that the Islāmic Caliphate was then more
of a secular than religious power.
In 750 AD (132 AH), the ʿAbbāsid Dynasty (750 to 1517 AD/132-923 AH) suc-
ceeded in taking over the power of the ʿUmayyad Dynasty. The ʿAbbāsid dy-
‫ة‬ ‫ )ا �لخ ف ة‬the political system
nasty moved the base of the Caliphate to Iraq and ruled the Islāmic territories
from there. In the ʿAbbāsid Caliphate (����‫��لا ��� ا �ل�ع ب���ا ����سي‬
was also a hereditary monarchy. In the end, the ʿAbbāsid Caliphate was very

‫ف‬ ‫ل��������ع��ة‬
‫ش‬
29  Ibid., 123.
30  Muḥammad Ḥussayn Ṭabāṭabāī, Al-Šīʿa fī l-Islām (‫� الا ��س�لا �م‬ ‫ ا � ي‬: Shiʿites in Islām)
‫�ي‬
(Beirut: Bayt al-Kātib Press, 1999) 29.
31  Abū Ǧaʿfar Muḥammad ibn Ǧarīr al-Ṭabarī, supra note 13, 369.
32  Ibid., 424.
33  Ṭabāṭabāī, supra note 30, 53.

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The Caliphate State in Theory and Practice 183
‫ة‬ ‫خ فة‬
weak, hence giving rise to the Ottoman Caliphate (���‫��لا ��� ا �ل�ع��ث���م�ا ن�ي‬
‫)ا �ل‬, which
was proclaimed in Constantinople, now Istanbul. During the 19th century, the
Ottoman Caliphate was influenced by ideas from the French Revolution and
the Enlightenment, and demonstrated two strong tendencies—one that want-
ed to modernize the Ottoman Caliphate and one wanted to keep to tradition.
As a result, during the 19th century, many legal reforms were introduced, pat-
terned after Western models but based on traditional (Ḥanafī) Islāmic law.34 In
1876 AD (1293 AH), for the first time, a constitution was adopted on the Western
model, declaring the Ottoman Caliphate Empire as a hereditary monarchy.35

Constitution of the Ottoman Empire, 1876, Arts. 3 & 4:

Art. 3. The Ottoman sovereignty, which in the person of the Sovereign
includes the Supreme Caliphate of Islām, belongs to the eldest Prince of
the House of Osman, in accordance with the rules established ab antiquo.
Art. 4. His Majesty the Sulṭān, under the title of ‘Supreme Caliph’, is the
protector of the Muslim religion. He is the sovereign and Sulṭān [emper-
or] of all the Ottomans.

With the revised Constitution of August 1908 AD (1326 AH), the constitu-
tional system became a parliamentary monarchy. By 1923 AD (1341 AH), the
Constitution was completely repealed and the dissolution of the Islāmic
Caliphate was declared. Influence over the territories of the Ottoman
Caliphate was divided between Britain and France, i.e., two European victors of
World War 1.

8 Formation of a New Islāmic Caliphate

After the dissolution of the last Islāmic Caliphate, the Ottoman Empire, in 1923
AD (1341 AH), a number of political movements and parties arose with the aim
to restore an Islāmic Caliphate. However, their efforts were unsuccessful and
expectations declined until 1969 when the Islāmic Conference was held in

34  Bammarny, supra note 18, 15.

35  L. Bernard, The Emergence of Modern Turkey (London: Oxford University Press, 1961)
156 et seq.; S. J. Shaw, History of the Ottoman Empire and Modern Turkey, Vol. II, Reform,
Revolution, and Republic: The Rise of Modern Turkey, 1808-1975 (Cambridge, MA: Cambridge
University Press, 1977) 174 et seq.

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184 Bammarny

Rabat.36 This meeting was more a conference than organization, as its name
implies, with little potential for further development, as the creation of new
states and drawing of new borders during and after World War I had left deep
marks of division.37
Only in recent years has a militant Islāmic movement, namely the so-called
Islāmic State (IS), succeeded in dominating large regions between Iraq and
Syria, and consequently declared an Islāmic Caliphate at Mosul in 2014.38 In
declaring the Caliphate, the borders set down in the Sykes-Picot Agreement
of 1916 were rejected and the Caliphate was given the right or duty to rule the
entire Islāmic territory. The declaration also referred to the aforementioned

‫ح�ل وا �ل�ع��ق���د‬
‫)ا �ه� ا �ل‬. Abū Bakr al-Baghdadī al-Husseinī al-Qurayshī39 appointed
Medieval ahl al-ḥal wa al-ʿaqd (those qualified to elect or depose a caliph;
� ‫ل‬
himself the new Islāmic Caliph, however, without explaining which individu-
als comprised the ahl al-ḥal wa-l-ʿaqd committee. Emphasizing the surname al-
Qurayshī was meant to show that the Caliph’s roots derived from the Prophet
and therefore met all prerequisites.
In its declaration, the new so-called Islāmic Caliphate declared its right to
rule the entire area that throughout history had at some point in time been
under the rule of an Islāmic Caliphate, even including Spain and Portugal. In
its declaration, the newly named Islāmic Caliphate declared itself the guard-
ian of all Muslims worldwide who have the right to be egalitarian citizens of
this Caliphate. This invitation has not been without success, for daily the IS
movement acquires new fighters who come from around the world. Not only
Muslims are invited to join; anyone willing to convert to Islām can become
a citizen of the IS Caliphate. Anyone can become a Muslim simply by pro-
nouncing three times the Islāmic confession, i.e. there is no god but Allah and

36  On 28 June 2011 (1432 AH) during the 38th Council of Foreign Ministers meeting in
‫ت‬ ‫�ظ ة‬
Conference (Arabic: ‫ )�م ن������م�� ا �ل���م�ؤ ����مر ال�إ ��س�لا م‬to Organization of Islāmic Cooperation
Kazakhstan, the organization changed its name from Organization of the Islāmic

‫�ي ن‬ ‫�ظ ة‬
(Arabic: ‫)�م ن������م�� ا � ت�ل��ع�ا و� ال�إ ��س�لا م‬.
‫�ي‬
37  The reasons for the collapse of the Ottoman Empire are not part of this research. Marks
of division after the collapse include the division of ethnic groups, such as the Kurds into
various states.
38  I S emerged after the invasion of Iraq in 2003 and the successive sectarian war between
Arab Sunnis and Arab Shiʿites in Iraq and the civil war in Syria. This militant radical group
took advantage of this situation and mainly succeeded in Arab Sunni areas.
39  Born in Samarra in 1971, he studied in Baghdad and was a religious scholar. He was ar-
rested in 2004 and was detained in Camp Bucca by the US Armed Forces in Iraq. After his
release he joined terrorist groups in Iraq.

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The Caliphate State in Theory and Practice 185

Muḥammad is His Messenger. The IS Caliphate declares that they will expand
their reach until Islām dominates the world.
In areas where IS holds sway, people are classified according to their religion,
gender and denomination. First-class citizens are the so-called “true” Muslims
who act according to the commandments of the Qurʾān and Sunna, that is,
according to the interpretation and understanding of the Qur’ān and Sunna as
determined by the IS. In their arguments, IS disregards the basic principles of
Islām and abuses Qurʾānic texts that can only be understood within their his-

‫)ح�د � ث‬, which, as previously mentioned, are

torical context. When unable to base their arguments on Qurʾānic texts, they
search prophetic sayings (Ḥadīth � ‫ي‬
often neither authentic nor in agreement with the Qurʾān. IS often relies upon
the opinions of the Ḥanbalī school, especially the scholar Ibn Taymiyya (1263-
1328 AD/661-728 AH).40 These opinions should actually be seen in the zeitgeist
of the 13th century in which Ibn Taymiya lived, and which are unsuitable for
our era. For example, tombs of the prophets whose names are mentioned in
the Qurʾān and Bible were destroyed on the grounds that no one should be
sanctified and honoured but Allah. These and other acts of destruction, mur-
der, and other criminal acts have met with the disapproval of many Muslims.
Second-class citizens in the IS Caliphate are ahl al-ḏimma (people of the
Covenant), meaning Christians and Jews whose religions are recognized by
Islām. Adherents to these religions can continue to practice their religion in
‫ة‬
family and inheritance law. However, they must pay a special tax (ǧizya ��‫)�ج�ز �ي‬.41
Islāmic areas and partly follow their own legal rules, particularly in the areas of

Third-class citizens are the non-believers. This means all Muslims who do
not act according to IS rules,42 and members of religions that are not recog-
nized, such as the Yezidis who do believe in God, but not that a rebel is allowed
in His kingdom. Therefore, Yezidis see this figure as a representative of God
on earth and the true great king on earth, who is called Taws Malik [Peacock
Angel].43 Third-class citizens are forced to convert to Islām or face execution.
Therefore, hundreds of thousands of people have fled to relative safety into the
Iraqi Kurdistan region and to neighbouring countries. The IS is increasingly
losing control over its occupied territories and it certainly has no future.

40  John L. Esposito, Unholy War. Terror in the Name of Islam (Oxford: Oxford University Press,
2002) 45.
41  This practice was followed in the times of the Prophet during the 7th century and is
accepted by classic Islamic scholars. Christians who lived in the IS dominated areas,
however, did not want to stay under the rule of a radical Islamic group.
42  All Shiʿite Muslims fall under this qualification and are therefore being pursued.
43  Ṣaddīq al-Damlūǧī, Al-Yazīdīya [The Yezidis] (Musol: Matbaʿat al-Itiḥād, 1949) 5, 403.

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186 Bammarny

History has shown that radical groups and movements cannot prevail for
long. Experience also shows that new extremist groups repeatedly reappear
under particular circumstances.

9 Conclusions

The dispute between Sunnis and Shiʿas on the question of the Caliphate clearly
shows that the question of a Caliphate was not regulated in Islām, thus creat-
ing a great divide between Muslims. Although religion and power should be
kept separate, Muslim rulers have abused Islām by allegedly justifying their
rule to Allah. There is no greater danger than when religion is misused to vali-
date power, thereby shedding blood in the name of Allah.
History also shows that radical groups are only formed in times of turmoil
and crisis, when chaos or great disorder prevails. IS could only take root after
Iraq succumbed to chaos and the international community allowed the trag-
edy in Syria to continue. Suppression of Arab Sunnis resulted in their willing-
ness to ally with any group. Violence begets violence, and the international
community must take measures so as not to be short-sighted by turning their
backs on some areas.
The result to date is an ongoing waves of refugees flooding not only into
neighbouring countries, but also seeking refuge worldwide.
A very important point that leads to radicalism is the excessive use of vi-
olence by the military and security sectors in Arab states against moderate
political groups, particularly several moderate Islāmic political parties. One
should differentiate between Islāmic parties that adhere to democratic rules,
and those radical militant groups that attempt to achieve their goals through
violence. If a distinction is not made, then radical groups will always flourish.

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