People need the states to have a peaceful and comfortable life in order to protect their livelihood and order, just as much the states need the law to the same degree in order to perform their functions and duties flawlessly which are expected of them. While the foundation of the state and the ultimate goal of the legal order is justice; the justice is manifested, sustained, and its objective and universal criterion is determined under the guarantee of provisions of law. When it comes to the phrase “state of law” today, it refers to the fact that the state is subject to law altogether with its institutions; legal security is provided; fundamental rights of the citizens against the state are protected, and independent court applications are available for everybody.
Undoubtedly, the most obvious qualification of a state of law is the dominance of the rule of law principle. In the event of this principle is not respected, expecting a state to provide benefits will be pointless, and moreover, if this principle is violated in a state, even through its formal elements, it is not possible to call that state a “state of law”. What needs to be perceived when it comes to “state of law” is that the state must be organized in compliance with the rule of law principle, and this principle should be predominant on the judiciary, legislative, and executive powers. Because a state of law does not only mean to be a state with a law; on the contrary, it means to be a state where the law is predominant above all individuals and institutions from this aspect, the law both constitutes the fundamentals, philosophy, and the source of legitimacy of the state apparatus, and also destines its boundaries and objectives.
Definition, Objective, and Dawn of “Rule of Law” Concept,
The rule of law, in the simplest terms, represents the law’s generality and the eminence of its authority in a country. The intended meaning behind generality is that the law shall be enforced equally for everybody; everybody shall be equal before the law. There is no difference between the rich and poor, strong and weak, or the rulers and ruled when they are brought to justice. And the meaning behind the rule of law is that no institutions or human beings including judges, lawmakers, religious functionaries, and administrators shall not have privileged status before the law and be able to go above the law.
Although it is perceived as all of the citizens should obey the provisions of law and be governed by the law since it is called the rule of law, fundamentally, the actual objective of the rule of law is to expose and limit the state and the administration with the law. It is to prevent the unconditional and unrestrained use of sovereignty. It means to raise the pedestals of law above the state and take it in the hands of the statutes of the law in order to make its operations legal. It is for the state apparatus, which holds the highest power of the state, to prevent any potential violation of rights targeting the people who are relatively weak and powerless. Therefore, the core of the rule of law principle is formed by the protection of individuals against the power of the state.
To be more clear, the West, which had suffered a lot from the kingdoms that had proclaimed that they had drawn their strength from God and almost enslaved the society; the Fathers of the Church who had built up a system of exploitation over the society; the feudal lords who had enjoyed arbitrary treatments with their broad authorities, found the solution of protecting the fundamental rights and freedoms of the individuals who are weak against the state in establishing the state of law and making the rule of law dominant above everything. A lot of western countries, primarily the United States, Germany, France, and England put an end to the omnipotent state mentality thanks to many constitutions and statutes they had established.
From then onward, the state mentality, which had been placed above the law and created arbitrary legislation; had carried out unquestionable actions; violated the individual rights and limited their freedoms under the names of “wisdom of state” and “politics of expediency” started to fade away and gave its place to a state mentality which was forced to take actions within the boundaries of the law and considered protecting every kind of rights and freedoms of its citizens top priority. From this aspect, the state had stopped being a vulgar element of force and had been tamed, humanized, and moralized.
Even these short descriptions will be enough towards understanding the basic needs that reveal the idea of the rule of law, or what kind of abuse must be prevented in order to make law the absolute ruler over the state government. The rule of law disapproves the absolutist kingdoms which make people servants and even slaves of other people; the totalitarian and authoritative regimes which rigidly inspect, structure, and exploit the society; the dictatorships where the facilities of the state are concentrated on particular individuals or groups; the police states where bullies are in charge and decorated with unlimited authorities and able to carry out arbitrary actions; the tyrants and autocrats who rule over the faith of a great nation and agonize people with oppression and cruelty; the idea of the Brazilian dictator Getulio Vargas “Everything for my friends, the law for me enemies”.
Finally, it must be noted that the philosophy of liberal politics and constitutionalism activities had serious influences towards increasing the attention on human rights and the settlement of the idea of the rule. Because the state is not a self-appointed existence in a liberal sense. Being a state does not bring subsistent requirements or necessities together. On the contrary, a state is a tool which provides social peace and protects the rights. A state is not right because it is powerful. It shall be used only in order to actualize legitimate and rightful objectives. Likewise, it is not the state but the law is the primary and dominant principle according to the liberal sense. There is no doubt for such a state vision to increase the importance attributed to law and human rights.
Rule of Law Principle: Indicators and Requirements
In a country where the rule of law is literally adopted and the law is predominant, it is impossible for the state to use the law as a weapon against somebody or to see the law as a useful “tool” that serves its own purposes. Being caught up in illegal activities or carrying out unlawfulnesses in the name of the law cannot be accommodated with a state of law. Likewise, individuals or groups cannot be sacrificed for the sake of the state in a country which is considered a state of law in essence. The innocence of lives and properties cannot be violated for the state’s self-interests. Furthermore, the duty of the state is not “gracing” some rights and freedoms to the people in such a country. On the contrary, its duty is to guarantee the rights of the citizens, which are already owned by them by simply being humans and citizens. For all these to happen, first and foremost the rulers in the state must believe in the rule of law, predicate its legitimacy on this base, and adopt this philosophy.
On the other hand, in a country where there is rule of law, the fundamental rights and freedoms are protected by the constitution and statutes. After this point, the state cannot accuse any individuals or groups about their legal jobs and activities. It is also not an excuse for the statutes to be deficient, insufficient, or wrongful about this matter. Because in this situation, it is necessary to change the statutes that are required to be changed or legislate new ones. This means that the state can only hold its citizens responsible for the officially declared statutes and hold them accountable. Descriptions such as “legal looking illegal organizations” -made in Turkey to label some civil society organizations- are nothing but a useless effort in order to legitimize the illegal activities and oppression carried out by the politicians.
In order to actualize all of these, the state must be institutionalized and organized according to the rule of law principle. The state must also make new constitutional and legal regulations in order to enforce the laws equally towards the everybody including the lawmakers and the administrators of the state. Furthermore, it must be capable of maintaining judicial review over legislation, and especially over enforcement. It is without a doubt that this requires transparency and accountability in the administration.
The most effective way to establish an independent and unbiased jurisdiction is to guarantee the legitimacy of all kind of actions and occupations of the state and provide the individuals with the assurance of the law against some of the arbitrary practices of the state. Otherwise, in a state where there is preferential treatment and the judicial bodies are in the hands of the government, we cannot speak of law, fair hearing, the presumption of innocence, respect towards what is achieved, or retrospectivity of the statutes.
Rule of Law in Islam
As mentioned above, the concepts of rule of law and state of law belong to the modern period and only have a history of a few centuries. However, in accordance with the statements of some researchers, the foundations of this idea date back to older times. For example, Aristo’s statements “It is better for a state to be governed by laws than any citizen” summarizes the idea of the rule of law quite well. Although the ulama of Islam do not focus on this as a concept; while many words in Quran and Sunnah refers to the rule of law, all of the practices and applications of the Prophet (PBUH) and True Caliphs are based on the conception of rule of law. It is important to underline here that the wrong practices, which do not accord with the idea of rule of law, adopted by today’s or archaic Islamic countries cannot be attributed to Islam.
We can confirm that the state foreseen by Islam is a complete state of law, and Islam also places the rule of law in the foundations of the state when we focus on the regulations such as making no discrimination between the rulers and the ruled before the law; not entitling immunity for any of the administrators including the head of state; an ordinary citizen being able to file charges easily against the head of state; accepting the fact that being a head of state is a succession and guardianship duty that bears a very heavy responsibility; emphasizing that only the legitimate and overt commands of the head of state should be obeyed; establishing a public opinion control system that adopts the duty of ordering good and retaining from evil against the administrators; accepting as a principle that any law-opposing head of state shall be overthrown; the purpose of the state is to guarantee justice and public welfare.
On top of these, essentials such as clearly identifying the duties and responsibilities of the rules and the ruled; propounding very important and difficult conditions about the knowledge and capability for the people who are candidates for being the head of state; imposing consultation before performing an action as a primary duty for all of the administrators throughout all of the offices of the government; subject every kind of administrative and operational process and practices to law; supporting the law with persuasive and moral dynamics; enabling legislation, enforcement, and jurisdiction to work independently from each other are very important dynamics which preclude the administrators to carry out arbitrary actions and dominate society.
All of these had not remained a theory and found the opportunity to be practiced primarily during the first periods of Islam and the following centuries. A woman, who was a member of a noble family, had committed theft during the Golden age of Islam. When somebody had applied to the Prophet (PBUH) in order for her forgiveness, first, he had stated that even if Fatima, daughter of Muhammad, were to commit theft, he would carry on with the penalty, and more importantly, continued his words with the following historical statement which presents the rule of law: “”O people! The nations before you went astray because if a noble person committed theft, they used to leave him, but if a weak person among them committed theft, they used to inflict the legal punishment on him”. (Sahih al-Bukhari 6788 Book 86, Hadith 17)
And the following incident, which had happened between the Prophet Muhammad (PBUH) and his companion (sahabah), is a solid example of equality before the law and a very important reflection of the rule of law principle: While the Messenger of Allah (PBUH) was distributing something, a man came and leaned over him, and the Messenger of Allah (PBUH) poked him with a withered stick he had in his hand and injured his face by accident. On that, the Messenger of Allah (PBUH) asked him to come and take retaliation for that injury. The man said, “No, I’ve forgiven you O Messenger of Allah (PBUH).” (Sunan Abu Dawud, 4536). Umar, who had witnessed this incident, had stated, “I have seen the Messenger of Allah (PBUH) subject even himself to retaliation.” (Sunan An-Nasai) Even if Muhammad (PBUH), who had been a prophet alongside being the head of state, is doing this, that means no administrator, nor a ruler have the right for immunity before the law according to Islam.
Abu Bakr, the first Caliph, who had been the head of state after the Prophet Muhammad (PBUH), introduced the fundamental dynamics of a state of law in his following speech after he had been elected as the caliph: “O’ people! I have been given the authority over you, and I am not the best of you. If I do well, help me; and if I do wrong, set me right. The weak amongst you shall be strong with me until I have secured his rights, and the strong amongst you shall be weak with me until I have wrested from him the rights of others. Obey me so long as I obey Allah (SWT) and His Messenger (PBUH). But if I disobey God and His Messenger, ye owe me no obedience.” (Al-Bidaayah wan-Nihaayah 6:305, 30)
These words of Abu Bakr, which reflects a superior idea of justice and law which cannot be reached up to even by the modern world, means that he is no different than any other common people; open to supervision and answering; he would treat everyone equally; he would abide by the law; he had obtained legitimacy without enforcing the law, and he had also called the people for political opposition, civil disobedience, and insurgency when the administrators abandon law.
Likewise, the following words of Umar Ibn Al-Khattab, -the second Caliph of the Muslim Ummah and the first Muslim leader to be called the Commander of the Faithful- at the beginning of his caliphate duty suggests that the principal duty of the head of state is to enforce the law: “Our duty is only to order what Allah (SWT) orders, and prohibit what Allah (SWT) prohibits, and enforce Allah’s (SWT) judgments to everybody whether they are far away or close by”. (Ali al-Muttaqi, Kanz al-Ummal, 16/164)
The following statements of Umar Ibn Al-Khattab, written in the letter he had sent to Abu Musa al-Ash’ari describe the principle of equality before the law, which is one of the most important requirements of a state of law: “During the trial, treat people equally in the way you attend to them, administer justice, and hold court so that a nobleman may not expect you to be partial to him and a weak man may not despair of your justice” (Sunan Al-Kubra, Bayhaqi, 10/229). Basically, these words of Umar is a mere confirmation of the following hadith of the Messenger of Allah (PBUH) with different words: “When one among you is given the duty to pass judgment, he must treat equally by his attitude, sign, and the way he sits, and avoid raising his voice towards only one of the opponents.” (Sunan al-Daraqutni, 5/365-366)
Umar himself had strictly respected his advice towards providing justice and equality to the judges. For example, one day, Ubay ibn Ka’b sues Umar to Zayd ibn Thabit. In order to receive a judgment between themselves, they go to the house of Zayd. Zayd shows a better place to sit due to the fact that Umar is the caliph. In response, Umar states that this action of his is not just and sits right next to the plaintiff. Subsequently, Umar needs to take an oath since he is the defendant. Although Zayd asks Ubay to exempt Umar from taking an oath, Umar rejects this and takes an oath. Then, he states “I swear to Allah, until he treats Umar equally to an ordinary citizen, no cases should be brought to Zayd ever again.” (Al-Bayhaqi, Sunan al-Kubra, 10/230)
Let’s give a final example from Ali ibn Abi Talib, the Fourth Caliph. One day, he drops his armor from his camel when he was the caliph. And a Jew takes this armor. Ali, seeing his armor in the hands of the Jew, sues him to Shuraih Al-Qadhi because the Jew claims title over the armor. Due to the fact that Ali is the plaintiff, Shuraih Al-Qadhi requests Ali to bring a witness. Thus, he calls his slave and son. However, since Shuraih Al-Qadhi does not recognize his son being the witness as lawful, he asks Ali to bring another witness. After Ali cannot find another witness, Shuraih Al-Qadhi passes judgment in favor of the Jew. The Jew is extremely surprised about the appearance of the head of state before the judge and then a judgment against him being passed by a judge appointed by the caliph, and returns Ali’s armor back to him, and becomes a Muslim. Then Ali gives the armor back to the Jew as a gift. (Abu Nu`aym, Hilyat al-awliya, 4/140)
The examples are not only a few where a head of state appears before the court against an ordinary citizen under equal conditions and the caliph is found wrongful according to the situation. As a matter of fact, one of the most important duties of the ministries of justice established during Islamic history was to hear the cases about the unlawful decisions of the enforcement, and administrators who had abused their powers. The Dîvân-ı Hümâyûn, in English the Imperial Council maintained this duty during the Ottomans era.
Legislation and Rule of Law
One of the most important subjects about the state of law and the rule of law is the source and qualification of the current statutes. Because, the matter about where the statutes would obtain their validities and executive powers and what qualifications they would have are directly related with the values of justice, equality, security, and social peace which are aimed by the rule of law. To make it more clear, it is not possible to talk about the rule of law in a state where the administrators monopolize the legislation, legislate arbitrary statutes, and protect their own interests thanks to these statutes instead of their citizens. Therefore, the statutes which are legislated must be fair, righteous, equal, unbiased, universal, and compatible with human nature above all.
We had already mentioned that the most important goal of the rule of law principle is to limit the power of the state and expose all of the practices of the state to the law. However, it is a fact that this opinion harbors very important dilemmas within. First of all, it is very naive to expect the state, which holds the authority to determine legal norms, to comply with all of the rules it established. Furthermore, what is the assurance of the state, which holds the power to establish the constitution and the legislation, towards legislating fair statutes that secure the fundamental rights and freedoms? Who is going to prevent the state from legislating unfair and antidemocratic statutes? What are the dynamics that will prevent the governments from looking after their own interests when they legislate statutes or change the current ones? How is it possible to know that the constitution, which is recognized as an assurance in order to legislate fair statutes, is actually fair or not?
The modern state tried to take some precautions towards preventing the abuse in the legislation by adopting the principle of separation of powers between legislation, enforcement, and jurisdiction with the mentality of “the government will stop the government”, establishing the Constitutional Court, and subjecting the legislation to judicial review. Would they be enough?
Moreover, the following questions also arise; how fair is it for some individuals, who are equal to the other individuals in society as a consequence, to be decorated by the authority of legislating statutes, determining the lifestyle of the others, and introducing various orders and bans? Wouldn’t the submission of the people actually enslave them after the lawmakers, who adopt various deficiencies such as making mistakes, succumbing to weaknesses, and looking after their interests? Furthermore, was law an instrument used by the dominant class existed in the societies, who had used it for inspecting and governing the people during different periods?
Some jurists and political philosophers tried to hide behind the natural perception of law where the individuals had untouchable rights and freedoms by birth in order to eliminate such dilemmas, and these rights had existed way before the existence of the state, and the state must be limited with these rights. Because, according to the supporters of the natural law, these untouchable fundamental rights owned by the people appoint the boundaries which cannot be overcome by the state and establishes a framework for this purpose.
And some jurists tried to get rid of the dilemmas in question, which we have mentioned above about the legislative problems, by means of searching the source of law in the social reality. According to them, the activity of the state is made up of legislation of the customs and precedents, which already exist among the people in society. From a different interpretation, the law takes place inside the minds of the people in society automatically and independent from the state, and this law concerns the state as well. They tried to protect the law from the arbitrary decision of the administrators by means of finding a foundation to the law outside the will of the state.
On the other hand, the Muslim jurists stated that the secular governments and the judicial theories will not be enough in order to avoid the governments using their powers arbitrarily, and such hypothetical information to be reflected into theory is a very long shot. According to them, it is very difficult for humans, who have limited wisdom and knowledge, are exposed to external influences, and unable to get rid of their own desires and enthusiasms, to legislate fair statutes which will protect the rights of the individuals and answer all kinds of their necessities in order to form a balanced social life. The humans, together with their inner depth, material and spiritual needs, and in respect of their relationships with other humans, are best known by their Creator. With this point of view, it is stated that the power of legislation in real terms belongs to Allah in Islam.
When we analyze the history of Islam since the commencement of Islam, it is quite clear that the legislative transaction had been carried out by civilian religious scholars. In other words, Islamic law came into existence as a result of the scientific studies carried out by the interpreters independently from the state. Especially during the first periods of Islam, the most important objective of the ulama, who had been keeping their distance to the governments and protecting their independence, was to manifest jurisprudences compatible with the will of Allah (SWT). Neither the head of state nor any other administrator had an intervention or played a role on the legislative transactions. From this aspect, it is out of the question for the state to impose the law in Islam; on the contrary, the law forms the state. More precisely, the state is granted its legitimacy from the law. Just like Wael B. Hallaq points out in his book The Impossible State; this aspect of Islam is very much unfamiliar to the perception of the modern state.
The administrators certainly will contribute to the establishment of law in case they possess the qualification of an interpreter. However, legislation had never been given up to their monopolization. Because the duty of the state is not legislating statutes; its duty had been perceived as administering the current channels fairly. The fact that legislation transactions had been carried out outside the state and only the ulama had been seen as the arbiter were assurances against the initiative of the individuals, who represent the authority of the state, to arbitrarily alter the law as they see fit. The fact that the state had been the protector of the values produced by the civil society instead of being the determinant of values itself is very important towards ending the tension and conflicts between the government and people.
However, by its nature, it had been accepted by the Islamic jurists that the state should be able to make arrangements especially for the administrative, political, and economic fields. Thus, the “customary law” revealed during the Ottoman era is a result of this need. However, it had been pointed out that these arrangements could not be against Islam’s fundamental principles and spirit, and on the other hand, they needed to be applicable for the public weal. The Islamic jurists described this with the following pedestal of fiqh: “Possession over the people is subject to ensuring the public welfare”.
The primary focus of the interpreters of Islamic law towards passing judgment is to acknowledge, interpret, and issue a decision from the explicit provisions of the Quran and Sunnah, and to provide a solution in the light of these provisions whenever no verdicts can be located within them. From this aspect, the legislation transactions are based on revelation in Islam. In addition, it is an indicator that Islam gives weight to human, wisdom, and social viewpoint due to the fact that the scholars of fiqh describe the main objectives guaranteed by the law as the protection of religion, life, wisdom, generation, and property; and they insistently put emphasis on concepts such as customs, judicial notice, peace and harmony, juristic preference, and justice in order to direct the legislation transaction.
Apart from all these, the fact that the sphere of influence of the Islamic provisions is not limited to this world and the Muslims will be accountable whether they abided by the provisions in questions or not, makes the provisions of law more important in the eyes of these scholars. In other words, aside from the material and earthly sanctions for the opposers of the law, the existence of the ethereal and spiritual sanctions also trigger their conscience towards complying with the statutes. There is no difference between the ruler and the ruled on this matter.
In order for the conceptions of state of law and rule of law settle and start functioning, it is extremely important for the social consciousness to occur; the awareness of the law to be established; finally, the individuals to know and appreciate their fundamental rights and freedoms. The administrators will find it more difficult to dominate the people in a country where the people know that adhering to the law is an assurance against the oppression and injustice of the state and view the rule of law as an indispensable condition towards living a humane life. Moreover, the citizens will be more sensitive towards the rule of law when they know that the rule of law has a tight connection with economic life, the investments would take more risks in a country where there is no stability, and the spirit of enterprise would disappear because of uncertainty and shortsightedness.
In such a country where awareness is increased and the people become conscious about the importance of law, the arbitrary unlawful actions of the rulers will not go unnoticed, their oppression and injustices will not be tolerated, and the rights and freedoms will be bravely defended. In a country where there is such a public oversight, the law will start calling the shots and the state will be more transparent day by day.
In conclusion, it is important to mention that one of the most important reasons for the Western states to gain momentum in their political, economic, and social lives is to make the law superior in the state administration; while the most important reason for the Islamic world to groan bitterly in the hands of some despots and dictators, experience oppression and rights violations everywhere, and witness the dominance of serious underdevelopment nearly throughout in all fields of life is the rule of law being substituted by the law of rulers.
Dr. Yuksel Cayiroglu is a scholar focusing on Islamic Law.
Turkish version of this article appeared at TR/724.com.