Justice: Delegating Authority To Those Under The Caliph

This is the last article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.

DELEGATING AUTHORITY TO THOSE UNDER THE CALIPH

025.7 (Mawardi:) The authority delegated to a minister of state may be of two kinds, full or limitary.

(1) Full ministerial authority is when the caliph appoints as minister an individual who is entrusted with independently managing matters through his own judgement and implementing them according to his own personal reasoning (ijtihad).

Appointing such an individual is not legally invalid, for Allah Most High says, quoting His prophet Moses (Allah bless him and give him peace), family,

Aaron my brother; fortify me through him and have him share my task” (Koran 20:29-32),

and if valid respecting the task of prophethood, it is valid a fortiori regarding the function of the caliphate. Another reason is that the direction of the Islamic Community (Umma), which is the caliph’s duty, cannot be fully conducted alone without delegating responsibility; for him to appoint a minister to participate therein is sounder than attempting to manage everything himself, a minister to help keep him from following mere personal caprice, that he may thus be further from error and safer from mistakes.

The conditions necessary for such a minister are the same as those for a caliph. Excepting lineage alone (dis: 025.3(e)), for the minister must implement his views and execute his judgements, and must accordingly be capable of expert legal reasoning (ijtihad). He must also possess an additional qualification to those required for the caliphate, namely, by being specially qualified to perform the function he is appointed to.

(2) Limitary ministerial authority is a lesser responsibility and has fewer conditions, since the role of personal judgement therein is confined to the views of the caliph and their implementation, this minister being, as it were, an intermediary between the caliph, his subjects, and their appointed rulers; delivering orders, performing directives, implementing judgements, informing of official appointments, mustering armies, and informing the caliph in turn of important events, that the minister may deal with them as the caliph orders. He is an assistant in carrying out matters and is not appointed to command them or have authority over them. Such a ministry does not require an appointment but only the caliph’s permission.

025.8 When the caliph appoints a ruler over a region or city, the ruler’s authority may be of two kinds, general or specific. The general may in turn be of two types, authority in view of merit, which is invested voluntarily; and authority in view of seizure of power, invested out of necessity.

025.9 Authority in view of merit is that which is freely invested by the caliph through his own choice, and entails delegating a given limitary function and the use of judgement within a range of familiar alternatives. This investiture consists of the caliph appointing an individual to independently govern a city or region with authority over all its inhabitants and discretion in familiar affairs for all matters of government, including seven functions:

(1) raising and deploying armies on the frontiers and fixing their salaries, if the caliph has not already done so;

(2) reviewing laws and appointing judges and magistrates;

(3) collecting the annual rate (khiraj) from those allowed to remain on land taken by Islamic conquests, gathering zakat from those obliged to pay, appointing workers to handle it, and distributing it to eligible recipients;

(4) protecting the religion and the sacrosanct, preserving the religion from alteration and substitution;

(5) enforcing the prescribed legal measures connected with the rights of Allah and men;

(6) leading Muslims at group and Friday prayers, whether personally or by representative;

(7) facilitating travel to the hajj for both pilgrims from the region itself and those passing through from elsewhere, that they may proceed to the pilgrimage with all necessary help;

(8) and if the area has a border adjacent to enemy lands, an eighth duty arises, namely to undertake jihad against enemies, dividing the spoils of battle among combatants, and setting aside a fifth (def: 010.3) for deserving recipients.

025.10 Authority in view of seizure of power,

invested out of necessity, is when a leader forcibly takes power in an area over which the caliph subsequently confirms his authority and invests him with its management and rule. Such a leader attains political authority and management by takeover, while the caliph, by giving him authorization, is enabled to enforce the rules of the religion so that the matter may be brought from invalidity to validity and from unlawfulness to legitimacy. And if this process is beyond what is normally recognized as true investiture of authority with its conditions and rules, it yet preserves the ordinances of the Sacred Law and rules of the religion that may not be left vitiated and compromised (al-Ahkam al-sultaniyya wa al-wi/ayat aldiniyya (y87) , 25-39).

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