The series "Caliphate and Imamate in Islamic Thought"
By the writer and thinker Thaer Salama – Abu Malik
Episode Seventy-Five: Constitutional Law, the Constitution, and Administrative and Criminal Laws – Part 2
In order to make the comparison, we have examined the positive systems of government and compared them with the Sharia rulings related to the Islamic state, and our goal is to demonstrate that the Sharia rulings have explained in detail the provisions related to the state, which constitute the basis of the caliphate system, to demonstrate that the caliphate system is a divine system. Likewise, we will find the uniqueness of the Islamic system and its superiority over the positive systems in the field of the state and its organization. So, we examined the positive systems of government in terms of the political systems on which the form of the state is determined, its responsibilities, and who has sovereignty? And the rest of the questions on which the state takes a certain character, and we dropped from these concepts what is general that was derived constitutional provisions formulated by Hizb ut-Tahrir in a draft constitution for the Islamic state1, and as for the detailed provisions, the books of jurisprudence and judiciary are filled with them, which constitutes a precious intellectual wealth that has no equal in human history!
We have seen that those countries based on laws: that is, the legal state2, which is called constitutional systems3, the state puts in place a "constitutional law"4, that is, the law that applies to political systems and institutions, and it is the law that the state follows in its political life. Then the constitution5, that is, the constitutional document of a specific state that includes the provisions of the state and its political organization, especially the organization of the legislative authority and its relationship with the executive authority and the rights of individuals and their public freedoms. In contrast to constitutional law, there is private law, and the relationship of constitutional law to private law is relatively weak, as the first is concerned with the system of government in the state, its form and authority, while the second is concerned with the relationships between individuals and private legal entities and the state as an ordinary person, not as a holder of public authority and sovereignty.6
As you can see, these ideas relate to the general form and system of the state, its powers, and the way to preserve them. From here, we can distinguish between the system of government in Islam and the positive systems, in terms of their constitutions and constitutional laws, and we will postpone talking about private laws, that is, legislation that governs the relationships of individuals and regulates their behavior, until a little later, God willing.
We note the existence of detailed ideas in the Qur’an and Sunnah that deal with these ideas, as we mentioned a little while ago,
1- See: Draft Constitution of the Caliphate State by Hizb ut-Tahrir. And see: Introduction to the Constitution or its Justifications - Section One, Introduction to the Constitution or its Justifications - Section Two, from the publications of Hizb ut-Tahrir.
2- The components of the legal state: the principle of separation of powers (which is a misleading principle that does not apply to reality, as powers interfere flagrantly in all democratic systems, as the ruling party is the one that gets the highest percentage of votes in parliamentary elections, and then it forms the government, so here the legislative authority (parliament) overlaps with the executive authority (government), and so you will find dozens of examples that show the entrenchment of non-separation of powers!), monitoring the constitutionality of laws, and monitoring the work of the administration.
3- The constitutional system means that free system, i.e. the constitutional government in the state. See Lawyers Forum.
4- Constitutional law is a set of principles, provisions and rules that relate to the foundations upon which the state is built, as well as to the organization of government and its conduct within it. These principles, rules and provisions constitute the most important legal data related to governance within the state. These data are often found in a written document, i.e. a constitution, given its formal characteristics and its contents. Constitutional law, then, is a set of basic legal rules that clarify the following:-
1- The foundations upon which the system of government in the state is based. (Source of sovereignty: legitimacy, individual, minority, the people...),
2- Who rules? (Caliph? Prime Minister? King?) And how does he rule? (Caliphate, monarchical or republican governments) and the method of choosing the head of state (allegiance, direct election...),
3- Responsibilities of governance and the scope of these responsibilities, its powers and its limits. (Concentration of power or its distribution among rulers (absolute or restricted governments) the extent of subordination to the law (a state above the law, authoritarian, legal)
4- The duties and rights of the governed and how to perform his duties and guarantees of obtaining his rights.
5- The constitution is the supreme law that defines the basic rules for the form of the state (simple or complex), the system of government (Caliphate, monarchy or republic...) and the form of government (presidential or parliamentary...) and organizes the public authorities in it in terms of formation, jurisdiction and the relationships between the authorities and the limits of each authority and the basic duties and rights of individuals and groups and establishes guarantees for them towards the authority. See: Wikipedia.
Administrative law: its role is limited to putting the constitutional principles and rules into effect, and constitutional law has a relationship with criminal law, which in turn derives and draws its provisions from constitutional rules and principles, and its goal is to protect the system of government as a whole from aggression by individuals or rulers.
6- See Lawyers Forum
