Parts 28a

The religious functions of the caliphate Icon

January 16, 2020

To be caliph in reality means acting as substitute for Muhammad with regard to the preservation of the religion and the political leadership of the world.

Muhammad was concerned with both things, with religion in his capacity as the person commanded to transmit the duties imposed by the religious laws to the people and to cause them to act in accordance with them, and with worldly political leadership in his capacity as the person in charge of the (public) interests of human civilization.

Civilization is necessary to human beings and that care for the (public) interests connected with it is likewise (something necessary), if mankind is not to perish of neglect. 359

Royal authority and its impetus suffice to create (the institutions serving) the public interest, 360 although they would be more perfect if they were established through religious laws, because (the religious law) has a better understanding of the public interests.

Non-Islamic royal authority stands alone. But Islamic royal authority falls under the caliphate.

It has its subordinate ranks and dependent positions which relate to particular functions. The people of the dynasty are given (particular) positions, and each one of them discharges (the duties of) his position as directed by the ruler who controls them all. Thus, the power of the ruler fully materializes, and he is well able to discharge his governmental (duties).

Even though the institution of the caliphate includes royal authority in the sense mentioned, its religious character brings with it special functions and ranks peculiar to the Muslim caliphs. We are going to mention the religious functions peculiar to the caliphate, and we shall come back later on to the functions of royal government. 361

All the religious functions of the religious law, such as prayer, the office of judge, the office of mufti, the holy war, and market supervision (hisbah) fall under the “great imamate,” 362 which is the caliphate.

The caliphate is a kind of great mainspring and comprehensive basis, and all these (functions) are branches of it and fall under it because of the wide scope of the caliphate, its active interest in all conditions of the Muslim community, both religious and worldly, and its general power to execute the religious laws relative to both (religious and worldly affairs).

The leadership of prayer is the highest of all these functions and higher than royal authority as such, which, like (prayer), falls under the caliphate. This is attested by the (circumstance) that the men around Muhammad deduced from the fact that Abu Bakr had been appointed (Muhammad’s) representative as prayer leader, the fact that he had also been appointed his representative in political leadership.

They said= “The Messenger of God found him acceptable for our religion. So, why should we not accept him for our worldly affairs?” 363 If prayer did not rank higher than political leadership, the analogical reasoning would not have been sound. If this is established, it should be known that city mosques are of two kinds, great spacious ones which are prepared for holiday 364 prayers; and other, minor ones which are restricted to one section of the population or one quarter of the city and which are not for the generally attended prayers.

Care of the great mosques rests with the caliph or with those authorities, wazirs, or judges, to whom he delegates it.

A prayer leader for each mosque is appointed for the five daily prayers, the Friday service, the two festivals, the eclipses of (the sun and the moon), and the prayer for rain. This (arrangement) is obligatory only in the sense that it is preferable and better.

It also serves the purpose of preventing the subjects from usurping one of the duties of the caliphs connected with the supervision of the general (public) interests. The (arrangement) is considered necessary by those who consider the Friday service necessary, and who, therefore, consider it necessary to have a prayer leader appointed.

Administration of the mosques that are restricted to one section of the population or to one quarter of the city rests with those who live nearby. These mosques do not require the supervision of a caliph or ruler.

The laws and conditions governing the office of (prayer leader) and the person entrusted with it are known from the law books. They are well explained in the books on administration (al-Ahkam as-sultaniyah) by al-Mawardi 365 and other authors. We shall not, therefore, mention them at any length.

The first caliphs did not delegate the leadership of prayer. The fact that certain of the caliphs were stabbed in the mosque during the call to prayer, being expected (by the assassins to be there) at the prayer times, shows that the caliphs personally led the prayer and were not represented by others. This custom was continued by the Umayyads later on.

They considered it their exclusive privilege and a high office to lead the prayer.

The story goes that ‘Abd-alMalik said to his doorkeeper (hajib)= “I have given you the office of keeper of my door, (and you are entitled to turn away anyone) save these three persons= the person in charge of food, because it might spoil if kept back; the person in charge of the call to prayer, because he calls the people to God; and the person in charge of the mails, because delaying the mail might mean the ruin of the remote provinces.” 366

Later, when the nature of royal authority, with its qualities of harshness and unequal treatment of the people in their religious and worldly affairs, made itself felt, (the rulers) chose men to represent them as prayer leaders. They reserved for themselves the leadership of prayer at certain times and on general (festive) occasions, such as the two holidays and the Friday service. This was for purposes of display and ostentation. Many of the ‘Abbasid and ‘Ubaydid(-Fatimid) (caliphs) did this at the beginning of their respective dynasties.

The office of mufti

The caliph must examine the religious scholars and teachers and entrust it only to those who are qualified for it. He must help them in their task, and he must prevent those who are not qualified for the office from (becoming muftis).

The office of mufti is one of the public interests of the Muslim religious community. (The caliph) has to take care, lest unqualified persons undertake to act as (mufti) and so lead the people astray.

Teachers have the task of teaching and spreading religious knowledge and of holding classes for that purpose in the mosques. If the mosque is one of the great mosques under the administration of the ruler, where the ruler looks after the prayer leaders, as mentioned before, teachers must ask the ruler for permission to (teach there).

If it is one of the general mosques, no permission is needed. However,teachers and muftis must have some restraining influence in themselves that tells them not to undertake something for which they are not qualified, so that they may not lead astray those who ask for the right way or cause to stumble those who want to be guided. A tradition says= “Those of you who most boldly approach the task of giving fatwas are most directly heading toward hell.” 367 The ruler, therefore, has supervision over (muftis and teachers) and can give, or deny, them permission to exercise their functions, as may be required by the public interest.

The office of judge

This is one of the positions that come under the caliphate. It is an institution that serves the purpose of settling suits and breaking off disputes and dissensions. It proceeds, however, along the lines of the religious laws laid down by the Qur’an and the Sunnah.

Therefore, it is one of the positions that belongs to the caliphate and falls under it generally. At the beginning of Islam, the caliphs exercised the office of judge personally.

They did not permit anyone else to function as judge in any matter. The first caliph to charge someone else with exercise of (the office of judge) was ‘Umar. He appointed Abu d-Darda’ 368 to be judge with him in Medina, he appointed Shurayh as judge in al-Basrah, and Abu Musa al-Ash’ari as judge in al-Kufah. On appointing (Abu Musa), he wrote him the famous letter that contains all the laws that govern the office of judge, and is the basis of them. He says in it= 369

Understand the depositions that are made before you, for it is useless to consider a plea that is not valid. Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.

The claimant must produce evidence; from the defendant, an oath may be exacted. Compromise is permissible among Muslims, but not any agreement through which something forbidden would be permitted, or something permitted forbidden. If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness.

Use your brain about matters that perplex you and to which neither Qur’an nor Sunnah seem to apply. Study similar cases and evaluate the situation through analogy with those similar cases.

If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim, otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt. All Muslims are acceptable as witnesses against each other, except such as have received a punishment 370 provided for by the religious law, such as are proved to have given false witness, and such as are suspected (of partiality) on (the ground of) client status or relationship, for God, praised be He, forgives because of oaths [? ] 371 and postpones (punishment) in face of the evidence.Avoid fatigue and weariness and annoyance at the litigants. For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation. Farewell.

End of ‘Umar’s letter.

Although the personal exercise of the office of judge was to have been the task of (the caliphs), they entrusted others with it because they were too busy with general politics and too occupied with the holy war, conquests, defense of the border regions, and protection of the center. These were things which could not be undertaken by anyone else because of their great importance. They considered it an easy matter to act as judge in litigation among the people and, therefore, had themselves represented by others in the exercise of (the office of judge), so as to lighten their own (burden). Still, they always entrusted the office only to people who shared in their group feeling either through (common) descent or their status as clients.

They did not entrust it to men who were not close to them in this sense. The laws and conditions that govern the institution (of the judiciary) are known from works on jurisprudence and, especially, from books on administration (al-Ahkam assultaniyah).

In the period of the caliphs, the duty of the judge was merely to settle suits between litigants. Gradually, later on, other matters were referred to them more and more often as the preoccupation of the caliphs and rulers with high policy grew.

Finally, the office of judge came to include, in addition to the settling of suits, certain general concerns of the Muslims, such as supervision of the property of insane persons, orphans, bankrupts, and incompetents who are under the care of guardians; supervision of wills and mortmain donations and of the marrying of marriageable women without guardians (wall) to give them away 372 according to the opinion of some authorities; supervision of (public) roads and buildings; examination of witnesses, attorneys, and court substitutes, 373 to acquire complete knowledge and full acquaintance relative to their reliability or unreliability.

All these things have become part of the position and duties of a judge. Former caliphs had entrusted the judge with the supervision of torts. 374 This is a position that combines elements both of government power and judicial discretion.

It needs a strong hand and much authority to subdue the evildoer and restrain the aggressor among two litigants. In a way, it serves to do what the judges and others are unable to do. It is concerned with the examination of evidence, with punishments not foreseen by the religious law, with the use of indirect and circumstantial evidence, with the postponement of judgment until the legal situation has been clarified, with attempts to bring about reconciliation between litigants, and with the swearing in of witnesses. This is a wider field than that with which the judges are concerned.

The first caliphs exercised that function personally until the days of the ‘Abbasid al-Muhtadi. Often, they also delegated it to their judges. ‘All, 375 for instance, (delegated torts) to his judge, Abu Idris al-Khawlani; 376 al-Ma’min to Yahya b. Aktham; 377 and al-Mu’tasim to Ibn Abi Du’id.378 They also often entrusted the judges with leadership of the holy war in summer campaigns. Yahyi b. Aktham thus went on a summer campaign against the Byzantines in the days of al- Ma’mun. The same was done by Mundhir b. Sa’id, 379 judge under the Spanish Umayyad ‘Abd-ar-Rahman an-Nasir.

Making appointments to these functions was the task of the caliphs or of those to whom they entrusted it, such as a minister to whom full powers were delegated, or a ruler who had gained superiority.

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