Formation of Islamic concept of state
In the modern epoch within the framework of the civilized interaction of one of the most important elements of this process is the Islamic civilization and generated by it is Islamic law and state. Particularities of the Islamic concept of the state.
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FORMATION OF ISLAMIC CONCEPT OF STATE
I. The general stating of the question
In the modern epoch within the framework of the civilized interaction of one of the most important elements of this process is the Islamic civilization and generated by its Islamic law and state. Study of the given phenomenon, explaining the dynamics of development of Islamic civilizations, does not lose its urgency.
This problem is considered important by many researchers of the Islamic law. According to the known researcher of Islamic law B. Louise if we want at least somehow to understand what happened in Moslem world in the past and what is happening at present, we should recognize that religious factor is general and central element in the life of Moslem people. Unlike other most important world religions, Islam from the times of its founder was identified with the state, and confidence in unity of the state and religion firmly fell into memory and consciousness of Moslem people from their Holy Scripture, history and experience. Besides, for Moslem people religion traditionally forms the basis of their identity and loyalty .
II. Forming of Islamic state
In background sources of Islam law, first of all, in Koran and Sunni, there is not ordered any special form of state. The Islam right has not developed its own constitutional theory; however, any form of Islam state should completely correspond to clear requirements of the Islamic law. On this background it is possible to confirm that the Islamic law has "overstate" nature and fixes the fundamentals of the state system, principles of organization and activity of the state mechanism.
The brightest example of the entailment of Islamic concepts of the state can be the medin state, created by Prophet Muhammad in the year 622 and developed under ruling of his four successors. It had the specific organization, which had to be preserved after the death of the Prophet with all necessary modifications, connected with cessation of the Divine revelation. In accordance with this standpoint, the ruler of the Islamic commune after Prophet started to name the caliph, i. e. the envoy of the Allah.
The great influence of the theology direction on Islamic legal system reveals itself in the notion of the state indissolubly connected with the idea of caliphate - an ideal form of organizations of Islamic commune in accordance with precept of the Prophet Muhammad, stated in Koran, as well as in accordance with legends about his life and activity (Sunni). According to the teaching of Prophet Muhammad, the idea of creation of such state was given to him by Allah himself. He concentrated the supreme legislative, executive, judicial, checking power, making decisions usually after discussion with the most authoritative Moslems. According to 3:159 of the Koran, the ruler had softly and meekly to address the believers, to consult with them on public questions, but, on making the decision, to conduct it in life, hoping on Allah .
"Gradually the nearest relatives and associates of Muhammad consolidated in the privileged group, having obtained the exclusive right to power. Out of them after the death of Muhammad they started to select the new individual chieftains of Moslems - caliph. The first four caliphs, so called "righteous caliphs" (Abu-Bakr, Omar ibn al - Hattab, Osman ibn Affan, Ali ibn Abu Talib), have done much for formation and spreading of Islam and have terminated the political Unity of Arabia" .
According to Fazluri Rahman, during the rule of the first four caliphs, there was no great difference between the state and Islamic umma since many successors of Prophet lived there; particularly this pertains to the senior of them, who were advisors and controllers and took the direct participation in state government and law making. On this stage of the development of the Islamic statehood it is difficult to delimit and even distinguish the right and administrative management. Only conditionally, it is possible to give law making functions to caliphs of that period, since laws were created together with the by whole commune or by its seniors .
We can speak about two periods in the history of the Arabic caliphate: the damask period, or the period of ruling of dynasties Omeyyad (661-750), and the Baghdad period, or the period of the ruling of the dynasties of Abbasid (750-1258), which correspond to the main periods of the development of Arabic medieval society, and accordingly, state and law .
For the epoches of the Omeyyads and the Abbasids it was typical consolidation, as a result of which disembodied groups of the population formed the Islamic united integer. The essence of the conducted policy of Islamic was in taking the new norms and adaptation to them of pre-Islamic norms and institutes of both Arabic, non Arabic parts of Islamic population. During the period of ruling of dynasty of Omeyyad caliphate began to take the mundane nature.
In the course of development of the Islamic law there appears Islamic concept of the state. According to A.Kh. Saidov all offers about reforms in the Islamic state and law contradicted the traditional Islamic doctrine, according to which divine prescription are immutable and must not be stipulated in legislative frames. However, the process of legislative reforms started, and the sphere of relations, which were earlier specified only by the Islamic law, was invaded with statutory sources of the European origin. This process started in the middle of XIX century, has touched, first of all, the spheres, in which conflict with traditional Islamic law was not too sharp .
The further development of the Islamic concept of the state has brought to recognition and justification of existence of separate Islamic states as the alternative of the historic model of the united Islamic state - the caliphate.
III. The main doctrines of the Islamic state
Analyzing formation and evolution of Islamic doctrines about the state, it is necessary to note that in the first centuries of Islam (VII-X centuries.) the problems of state power were not essentially found in the highlight of the Islamic-legal science. Formed as the theocratic state, the caliphate since the first days of its existence was based on the principle of unity of spiritual and mundane authorities on behalf of the leader of the Islamic state - the caliph. The statutory prescriptions of the Koran and Sunni do not give the exact instructions for the forms of state system and mechanisms of regulation of activity of the Islamic state. However interpreters of the Koran and Sunni rather freely interpreted the holy texts and created the special works, reflecting the Islamic concept of the state. The background idea, which they followed, is denominated in Koran: the Allah is the single source of the power. At recognition of the supreme sovereignty as the prerogative of the Allah for his envoy Prophet Muhammad there was saved the function of checking for exact performance of his will on the land.
The Islamic concept of the state was developed later, at the end of the 10th century the beginning of 11th century, i.e, when the power of the caliphate at the last period of the ruling of dynasty of Abbasids came to decay. In the Islamic law the ideal state was shown in its theocratic nature. The lawyers considered it necessary to concentrate in the hands of Islamic rulers mundane and spiritual authorities. Actually such state did not exist from the times of formation of Omeyyad caliphate.
The significant stage in formation of the Islamic concept of the state is teaching of the Islamic lawyer Abdul Hasan Al-Mavardi (974-1058). According to the doctrine Al-Mavardi, the state rests on the two bases. The first is the base of the system, and the second is the base of policy (wise ruling). The base of the system is the religion, power or wealth. The state founded on the religion, is mostly advisable and firm. In the state, founded on the power if the ruler in his own actions keeps the principles of justice and fairness, the people at their own accord delivers him and follows him and as a result such state will be powerful and stable. However if the ruler follows the way of tyranny and despotism, the society will be subjected to destruction. The third type of the state is the state founded on wealth. It, according to Al-Mavardi, is the most sleazy and unstable. The policy has four fundamental principles: the first - construction of cities, the second - provision of safety, the third - organization of the army and the fourth - sufficient finance. According to Al-Mavardi, the ruler is the centre, and the people - is the periphery. Morality of the society depends on morality of the ruler. He expresses the will of the whole уumma and is the keeper of the power, protector of the people. The ruler does not obey to anybody, except the Allah, and the people subordinate to him does not have the right to assign duties on him and to demand their performance from him. .
During the long period of existence of the Islamic concepts of the state there dominated two approaches for nature of the state, the main difference between which consisted in determination of its correlation with religion.
The first approach is presented by one of the most significant Islamic theoretic of the law, the supporter of the theocratic concept of the Islamic state Ibn Taymiyi (1263-1328). His position was based on the thesis about unity of the state and religion . Ibn Taymiy considered that the Moslem people are not obliged to save the united caliphate. He considered possible the simultaneous ruling of several imams.
Another standpoint was expressed by the Islamic lawyers, defended mundane model Islamic state. However they also did not deny the determining role of the Islam and Islamic law in regulation of all spheres of life of the society, including public-legal.
The representative of the given concept of the Islamic state is considered Ali Abdeli Razek (1888-1966). Defending the idea of the mundane state in its work "the Islamic bases of the state" he confirmed that the Islam does not provide the concepts of the caliphate in classical and historical sense Ali Abdeli Razek did not only espoused creation of the mundane state, but also confirmed that the Islamic state was, in fact, from the very beginning the mundane state, rather than religious. The natural result of the given thesis was the recognition for the modern Islamic society of the law to create any systems of the power, according to their representations in the former condition .
At the period of ruling of Osman empire at the beginning of the 15th century there was formed another concept of the state, characterized by implementation of ancient Middle East concepts of the statehood since in the given period the administrative structure in general consisted from the representatives of Iran and Egypt. We should mention Gagil Inaldzhik who mentioned that the osman concept of the state was the continuation of ancient Turkish tradition though basically took their own beginning from the middle east and corresponded to the cardinal principles of Islamic law and state.
On the border of XIX-XX centuries in the Islamic public-political thought there has occurred the syntheses of pan-Islamic elements of the Osman doctrine and the idea of the Arabic caliphate, whose expresser became the Islamic reformer Maksud Rashid Rida (1865-1935). The basic positions of his concepts were stated in work "The caliphate or the great Imamate". The scientist does not back out of installations of medieval ideologues and lawyers, considering that Islam has created the perfect form of ruling, and the caliph is the shade of the Allah on the land .
At the beginning of XX century in the majority of Islamic states there prevailed the mundane model of the state. However in the second half of XX century there appeared the trend of reinforcement of the role of the Islam in the public and state life and influence of the Islamic law on the state system of these countries. This was distinctly shown in cardinal changes, existing in such Islamic states, as Pakistan, Iran, Sudan and others. In other words, the question about "Islamic ruling" - is not simply reaction on the European secularism and its cultural expansion, or counterweight to liberal-secularist ideological directions in the Islamic world. F.I. Hachim emphasizes that rebirth of the Islam at present can be considered the natural reaction on deep crisis in political, economic and military spheres. And he offers the formula of religious legitimating in counterweight to the western secularism and the principle of social justice in counterweight of economic inequality .
According to V. E. Dontsov, in spite of presence of the opposite opinions concerning revising legal and political heritage of the Islam and Islamic law, the future of secularism is not considered rather perceived in the Islamic world though, certainly, at present in the modern political life of the Moslem people there exist powerful undeclared secularist currents .
Lately even in such countries, in which in the process of historical development prevailed the model of the mundane state, having forced back the sphere of action of classical Islamic law in the sphere of personal status, there have more and more revealed the claims for correspondence to it of the new legislation, including in the sphere of the state construction. In spite of this, the Islamic concept of the state includes the small quantity of the borrowings from the western law.
We should comply with conclusions of Abdullah Ahmed An-Naim that unless they espouse the refusal of the Islam, the Shariat will remain extremely important element, forming views and behavior of the Moslim people even it does not become the public law of the country. While the Islamic population continues to link at the level of psychology and private life their own religious beliefs with historical Shariat, Shariat will still influence greatly the nature and policy of the state. Unlikely that the majority of the Moslem people will for ever take secularization of their public life. The more preferred is considered the approach, based on the analysis of the public law of the Shariat and historic experience of the Moslem people, coming from standards, dominated at the times when the Shariat was created and began to be applied, and on searching for possible ways of working out of alternative principle of the Islamic public life, which can be applied in modern conditions .
Within the framework of the Islamic concepts of the state there also appear two different directions of the Islamic understanding of the law - Sunit and Shiit. The Sunit concept of the state is connected with the caliphate, in which the head of the state (the caliph) is assigned with the main authorities. At the same time the caliph at decision of different state questions must keep the principle of consulting, according to which he must consult with religious elite of the Islamic society. The Shiit concept of the understanding of the Islamic state is connected with formation of the Islamic state - imamate, in which the head of the state (imam) concentrates the whole fullness of religious and mundane authorities.
So, in spite of existing pluralism of doctrines of the Islamic state, it is possible to characterize it as the state, created by the Allah for ensuring conditions of vital activity of the Moslem people and for possibility of coexistence with the citizens not Moslems on the principles of the Islamic law. According to the Islamic concepts of the state, its main purpose is considered in relatedness of all its bodies with the Islamic law and orientation of their activity to realization of its prescriptions.
ІV. Particularities of the Islamic concept of the state
The main particularity of the Islamic concept of the state is in subservience of its whole activity to the basic principles of the Islamic law, in other words, the Islamic law has "overstate" nature since it fixes the fundamentals of the state system, principles of organization and activity of the state mechanism. It also assumes realization of control over activity of the state on the part of the people which must be realized in accordance with prescriptions of the Islamic law. It fixes the principle of responsibility of the Islamic state before its own people.
The Islamic concept of the state assumes realization of a number of the concrete institutes and norms of the Islamic law at realization of the state activity. First of all, it pertains to the principle of "consultation". In a number of the Islamic countries the head of the state is presented by the consultative body, whose principles of formation and activity considerably correspond to the Islamic legal concept of the consulting rule. For instance, according to the Constitutions of Qatar, the Consulting Council is assigned by the emir, and his functions are to give advice to the head of the state, which is given the power to pass the laws solely after consultations with the given body.
The central institute of the sunit state-legal concept is the caliph - the head of the state and of the commune of orthodox, assigned with mundane and spiritual authorities. "The Shiit presentations about the a power (the state), defending its exclusive nature and differing in this way from the sunit theory, have its specifics, which reveals itself in consideration of the questions of the structure of the state in close relation with the general concept of the power and develops the broad circle of other problems, having the direct relation to policy, democracy, political mode, ruling .
The main constitutional principle, reflecting influence of Islamic institutes and norms on the state law and simultaneously acting as the legal basis of such influence, is recognition the Islam as the state religion, which exists in approximately 40 countries. Such positions have, for instance, constitutions of the Jordan, UAE, Tunisia, Qatar, Egypt, Pakistan and others. For instance, Article.2 of the Constitution of Egypt proclaims that Islam is the state religion of Egypt .
According to R. David "many states with the Moslem population still continue to declare in their laws and often even in constitutions about faithfulness to the principle of Islam. The subservience of the state to these principles is proclaimed in the constitution of Morocco, Tunisia, Algeria, Mauritania, Iran, Pakistan. The civil codes of Egypt (1948.), Algeria (1975.), Iraq (1951.) offer the judges to fill the gaps of the law, following the principle of the Islamic law. The constitution of Iran and laws of Indonesia provide the procedure, providing their correspondence to the principles of the Islamic law" .
Moreover, in many Islamic countries, having the Main law, the highest legal force is recognized, however, for the Koran. Parallel to the norms of the mundane law there act the positions of the Islamic law. The sphere of their spreading is different. As a rule, it covers relations of the personal status, but can leave these frames, including civil, administrative and criminal relations. The later is characteristic for countries of the Arabian Peninsula and Pakistan, in which the constitutional amendments in 1980 fixed in the mundane legislation of Pakistan such traditionally Moslem institutes, as religious taxes, punishments, cutting off hands, beating stones, obligatory prayer for state officials and the post. The legal responsibility is installed for non-observance of these rules.
For more consequent religious-legal regulation of social life there exist special bodies of control for the law making activity of the state, determining correspondence of the passed acts to the canons of the Islamic law. In Pakistan, for instance, the given function is executes by the Council of the Islamic ideologies and Federal court of Shariat. The Monarchs of Thailand, Morocco, Malaysia and a number of other countries have the right to pass statutory-legal acts, contradicting the main laws of their states.
In the Islamic concepts of the state, there exist different doctrines in respect of formation and functioning of the Islamic state. Supporters of one doctrine call for determination of the mundane state, others stand on traditional positions of the Islamic concept of the state.
But even adherent to the mundane way of development of the Islamic states recognized the fact that it is inevitable to apply the Islamic law as the personal law for the Moslem people in the sphere of the constitutional rights and human rights. I.e. in spite of recognition of the mundane way of recognition of the state the Islamic law will remain the most important factor in formation of legal mentality, legal consciousness and legal behavior of the Moslem people in spite of the fact that the role of the Islamic law weakens in the sphere of the public law.
In spite of the fact that in the fundamental sources of the Islamic law there do not exist norms and positions, which would directly concern the Islamic concepts of the state, however exactly they contain the principles, on which formation of the Islamic concept of the state is based.
The dynamics of development, the process of development and formation of the Islamic civilizations have put the question about formation of the Islamic state, whose main theoretical positions were kept in the Islamic doctrine of the law and state.
The modern concept of the state is not uniform, it is composed from approaches: supporters of secularism, and their opponents, i. e. those, who support the mundane way of development, and those, who support the theocratic way of formation of the Islamic state.
In spite of pluralism of different theories within the framework of the Islamic concept of the state, the cornerstone of the given concept still remains the fact that the main purpose of the Islamic state is considered in relatedness of all its bodies with the Islamic law and orientation to their activity at realization of its prescriptions.
islamic civilization law
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