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Public Interest in Modern Law and Islam

Aristotle classifies all regimes with two questions: The first one is “Who rules?”, and the second one is “Who benefits from the ruling?”. It primarily focuses on the forms of regimes that are oriented to ensure the wellbeing of everybody without acknowledging who actually rules. According to this approach, he names the states where the ruling is in the hands of a single individual “monarchy” (kingdom); the states that are in the hands of a particular group “aristocracy”; the regimes where all of the citizens have the right to speak “government/political governance”. Whether the ruler is a single individual, a particular group, or the public itself; their main objective is to provide collective efficacy. Therefore, these are all righteous forms of regimes according to Aristotle. 

A regime deviates from righteousness providing that it ceases to be a mechanism that is beneficial to everybody and starts looking after the interests of a single individual, group, or a mass. Aristotle named these deviations tyranny, oligarchy, and democracy. The regime would turn into a tyranny from the monarchy in case a king ceases to pay attention to the interests of his own people and starts using his power and opportunities only for himself. Likewise, an aristocracy that is deformed and corrupted will turn into an oligarchy, while political governance will turn into a democracy (Aristotle, Politics, p. 80-81). It is worth pointing out that Aristotle uses democracy in a different meaning compared to the one used today. 

As it is seen, a state being fair and righteous depends on who benefits from the regime rather than who actually rules it. Therefore, just as a state ruled by a king could be straightforward, it is also possible for a state that is ruled by the people to deviate from the true path. The important matter is whether the sources and opportunities offered by the state are distributed fairly among all citizens or not, and whether the interests and affairs of the people are taken care of or not. Just as these conditions can very well be met under a just and righteous king in a state ruled by monarchy; it is very well possible for a class or group to exploit the people for their self-interests in a country that is ruled by aristocracy and democracy.  

Tyrant Regimes

As a matter of fact, the idea that favors democracy due to the fact that everybody would benefit from the state opportunities equally and have better protection of rights and freedoms lies behind the sense of modern politics. Because the more people the party in power reaches as a base, the more corruption and descension will be prevented according to the modern conception. Just as it is more likely for a single individual to experience the hubris syndrome compared to a particular group, it is more likely for a particular group to be the subject of the same fate compared to all citizens. And the point that makes democracies important is its ability to prevent a possible monopolization of opportunities offered by the state on one hand and to ensure the public interests at the highest level on the other hand by spreading the power throughout the community base as much as possible.

The major factor that makes a political regime “authoritarian and totalitarian”; a state “tyrant and absolutist”; a head of state “despot and tyrant” is the perception of “for the people despite the people” or “for the rulers despite the people”. The requests and demands of the people, their interests and affairs, and rights and law fade into insignificance in states where such regimes are dominant. What matters is the interests of the tyrant rulers or oligarchic minorities who hold all the power in their hands and control the fate of the state. Legislation, judgments, and appointments are all carried out accordingly. Again, new resources are created and the existing ones are distributed accordingly. The rulers use their powers and authority to consolidate, protect, and exploit their own positions.

The rulers become bullies up to the extent where they move away from morals, justice, and democracy. The rulers who are tasked with protecting the rights and interests of the people in such governments become a threat themselves. The most important way for the ruling tyrants and despots to add more power to their powers, wealth to their wealth, and luster to their luster is to exploit the people’s labor, great efforts, and properties. Therefore, they establish an empire of persecution thanks to the taxes they collect from these people, the properties they seize, or the public wealth they hold in their hands.

They force the people to obey through oppression, threats, and intimidation, thus prevent any kind of objections and oppositions. They do not refrain from using force and violence in order to eliminate any potential threats. Because the rulers, who are already slaves to power and wealth, try to make the people submit to themselves as slaves either by force or voluntarily. They always want to see them look to themselves. They never allow them to grow stronger neither scientifically and intellectually nor in terms of wealth and political influence. Because it is so much easier for such people to obey vulgarly as stated in the following verse of the Quran: “So the Pharaoh bluffed his people, and they obeyed him. Indeed, they were [themselves] a people defiantly disobedient [of Allah ].”

“Raiyye Üzerine Tasarruf, Maslahata Menuttur” – (Mecelle, a. 58)

“The people tasked with ruling the people must look out for the general interests of the people.”

The fact that some of the people, who are exactly equal in terms of creation, are rulers over the other ones is a matter that has been debated for a very long time because it violates equality. In all honesty, who really gives the authority to rule over somebody else, to make decisions about somebody else, and to determine policies that would have influence over their future? How could the people legitimize the rulership of some of the individuals, who originate from them, to rule over themselves? Why do they consent to the limitation of their freedoms and experience some deprivations just for the sake of obeying an authority? How come they decide to give the right of independence to the hands of particular individuals or groups and allow them to impose sanctions and use force?

All of the questions above have one single answer: Because they expect to see some interests out of it. To put it more precisely, people consent to the rulership of some individuals at the cost of some deprivation due to the fact that they hope their rights, security, and freedoms will be better protected under the rulership of particular individuals within a particular political organization. They find being ruled under someone reasonable in order to see everybody benefiting equally from the resources of the country; to resolve disputes between people with justice; to ensure the safety of life and property; to ensure order and stability; to create a free environment where anyone can live their religion in peace.

Under the circumstances, the main purpose of the state for existence is to ensure the common good and public welfare. The expectation from the enforcement, legislative, and judicial powers of the state is to act in the direction of achieving this objective. The Islamic scholars summarized this truth with reference to the following pedestal of fiqh: “Raiyye üzerine tasarruf, maslahata menuttur” which means “The people tasked with ruling the people must look out for the general interests of the people.” If we put it by using modern Turkish, all of the rulers and administrators, who hold either important posts or smaller ones, should always consider what’s best for the public welfare for any kind of affair and activity about the people.

Almost all of the works explaining the pedestals of fiqh, which are also known as the literature of Al-Ashbah wa-al-Nazair or al-Furuq, includes this pedestal. Although there are some wording differences between them, they all express the same meaning. For example, while the Shafii jurist Taqi al-Din al-Subki states a general pedestal as “The one who rules over someone else should act in accordance with the public welfare.” (Subki, al-Ashbah wa-al-Nazair, 1/310), Maliki jurist Shihab al-Din al-Qarafi makes a deeper explanation: “The blessing of the rulership of the rulers, who become the head of state, or the people who serve under this ruler in administrative posts, depends on whether they aim to obtain a benefit or expel damage.” (al-Qarafi, al-Furuk, 4/39)

The following are the explanation of Izz al-Din ibn ‘Abd al-Salam on the subject: “The rulers and their representatives must take the most appropriate and favorable actions for the people they rule; meaning, they must ward off all kinds of mischief and damage from them, and obtain all kinds of benefits and goodness. They cannot be contented with any lesser as long as it is possible to obtain the more beneficial and better, except if there is potential to generate a severe hardship. They cannot decide comfortably and freely as if they decide about themselves when they decide about the people. ”(Izz al-Din ibn ‘Abd al-Salam, Kavaidu’l-ahkam, 2/89)

Emphasis on Public Interest in Verses and Hadiths

The pedestal of fiqh in question was extrapolated through reasoning just like all of the other pedestals are. The scribes first inferred the verses about the orphans. For example, while the following verse commands, “And do not draw near the wealth of the orphan, except in the fairest (manner), until he has reached full age.” (Surah Al-An’am, 6:152, Als-Isra, 17:34), another verse commands the following; “And they ask you about orphans. Say, “Improvement for them is best. And if you mix your affairs with theirs – they are your brothers.” (Surah Al Baqarah 2:220). These verses refer to those, who have custody over orphans, not to depart from goodness and favor regarding their responsibilities over the orphans and their properties. Due to the fact that it is necessary to pursue favors and goodness even for such a small and personal issue, it will as well be necessary for the rulers, who have general custody over the people, to pursue favors for the public affairs.

In addition to the verses above, the Messenger of Allah (PBUH) ordered the rulers to take action in favor of the people and to pursue the general benefits and favors of the people. For example, our Prophet (PBUH) heralded that the rulers, who take care of the needs and requests of the people and relieves their problems and difficulties, that Allah (SWT) will retaliate the same way on the Day of Resurrection. (Tirmidhi, Ahkam 6; Abu Dawud, Harac 13) However, the rulers, who die after deceiving their people and does not protect them with favors and goodness (Bukhari, Ahkam 8, Muslim, Iman 227), or the rulers, who do not protect and watch the people the way they protect and watch their own families, are intimidated to be deprived of Heaven. (Al-Tabarani, el-Mu’cemu’l-sagir, 2/137).

The following hadith, which is famous in this regard, emphasizes on the main duty of the rulers which is to protect the rights and benefits of the people under their ruling and to ensure their benefits and favors: “You are just like shepherds and all of you are responsible for those under your responsibility. The ruler is responsible for the people ones under his rulership. ” (Bukhari, Ahkam, 1; Muslim, Imaret, 20)

Rashidun Caliphs, who acquainted themselves with the warnings and remarks of the Messenger of Allah (PBUH) about the subject, dedicated their lives with all their favors and efforts to the people to allow them to live a comfortable and peaceful life during their caliphate. They never abused the power and authority they possessed for the sake of their personal interests, but on the contrary, they rather used it for the interests of the people. They satisfied the needs of the poor, got the weak one’s due from the strong ones, and distributed the revenues of the state fairly. In other words, they spent a lifetime in order to provide justice, stability, peace, and prosperity in society.

While they were trying to fulfill their duties and responsibilities in the best possible way they could, they were extremely careful in order to stay away from the sultanate. As a matter of fact, once Umar said, “I swear by Allah, I am not sure whether I am a caliph or a sultan!”, and he was answered by one of those who accompanied: “The caliph only takes what is rightful for him and always seeks justice. Praise be to Allah, that is how you are. The sultan, however, persecutes and does injustice to people with what he receives and gives.” Another narration dictates that Salman Al-Farsi, who closely knew the Sassanians’ ruling style and reign, responded Umar: “If you collect taxes a dirham more or less for the lands of the Muslims and spend elsewhere unfairly, then you are not a caliph.” Umar, who heard this response, started crying. (Ibn Sad, Tabakat, 3/306)

In conclusion, we can say that it is essential to pursue favors and benefits for the people in a regime that is envisaged by both the modern public law and political philosophy, and also Islam. This is the most important duty of the state. Heads of state and other rulers should use their power and opportunities in this direction. They must protect the common interests of the people, not the interests of themselves, their families or particular groups and classes. The legality and legitimacy of the head of state’s works and actions in the public realm also depend on this fact. The public obeys and must obey the rulers, or rather the political authority, because they believe it is in their own interests. The public interest determines the limits of the sphere of activity of the head of state. Should a head of state exceeds these limits, he will lose his lawful legitimacy and the right to be obeyed due to the fact that he extorts authority. 

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YUKSEL CAYIROGLU
YUKSEL CAYIROGLU
Professor Yuksel Cayiroglu is a scholar focusing on Islamic Law and Religous Studies.
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