ThIslamic state in the 21 century












Ausaf Farooqi







I.              Forward                                                                                                                 3

II.           Fear of the Islamic State                                                                                         5

III.         Sources of Islamic Law                                                                                           8

IV.        Mandate of the Islamic State                                                                                   17

V.           Form of Governance                                                                                               23

VI.        Role of Women in Government                                                                               36

VII.            Church and State                                                                                                    37

VIII.         Jihad and International Relations                                                                              47

IX.        Comparative Analysis                                                                                             52

X.           Conclusion                                                                                                 54











            In a high school debate, well over a decade ago, an opponent was attempting to argue the essentials of communication.  He stated that, without communication, Canada could be taken over by Muslims and America would not even be aware of the conquest.  My partner and I, unable to find any viable counterargument to the need for communication, decided to argue the benefits of Canada being taken over by Muslims.  Needless to say, we were not victorious.

            A decade later, the rhetoric in political circles and the media once again espouses the fear of “Islamized nations” taking root in various regions of the world.  This time, however, the discussion is far more real then idle high school debates.  Generally speaking, the “Islamization” of a state seems to be something which is contrary to international interests. 

The rationale behind this opinion seems to be underdeveloped.  Terrorism, human rights violations, and “stone age” doctrines seem to fuel the outcry against an Islamic state.  In order to avoid these threats to humanity, the international community and many in the Muslim world have made an earnest effort to separate Islam from politics.

This paper seeks to examine the Islamic state in the 21st century as guided by Islamic religious doctrine and current political realities.  This paper examines mainstream Sunni doctrine.  This paper does not look into additional sources of Shi’ite theology or other sects of Islam.  It is not this paper’s intent to justify or condemn the Islamic state.  This paper simply seeks to shed light on the reality of an Islamic state so that, when one does choose to take a position, one will take an informed position.

Unfortunately, despite my background as a Muslim and my legal training to this point, I am ill-equipped to voice an opinion that can stand without criticism.  I am not a scholar of religion and I have learned more about the religion of Islam in three months of research for this topic then I have uncovered in over twenty years of life.  I also recognize my inability to read Arabic or Urdu has limited by access to scholarly work on this subject.  I believe the theory I present is substantiated by the totality of research I have undertaken but I recognize that I may have missed specific Islamic rules and doctrine which could abrogate whole sections of my argument. 

I include this disclaimer as this work does analyze a certain religious doctrine and it would be irresponsible of me towards both my academic and religious integrity to not begin my work with these words.  I humbly hope to improve this work over the course of time and I welcome all criticism and additional information which will refine this work closer to an accurate depiction of the Islamic state.

Following the tradition of other Muslim authors, I begin this work in the name of God and solemnly state all that is good in this paper comes from God and all defects in this work come from my human weaknesses.










Much to the dismay of the Turkish military and secular enthusiasts, Abdullah Gul, a practicing Muslim, ascended to the presidency of Turkey in 2007.[1]  Gul, who has not been linked to elements of extreme Islam or terrorism, was met with a lukewarm reaction from many, who feared he would steer Turkey, a strongly secular nation, towards Islamic politics.[2] Many of his opponents were unnerved by the simple fact that his wife wore an Islamic headscarf, a practice shared by millions of Muslims throughout the world.[3]

Turkey is not alone in their fear of Islamic politics.  Egypt had longed banned the Muslim Brotherhood, an openly Islamic political movement, from participation in its marginal democracy.[4]  Tunisia, where Islam is the official state religion, prohibits religious political parties.[5]

Other nations have restricted specific practices of Islam.  For example, Turkey and France have all placed restrictions on the wearing of Islamic headscarves.[6]  In these cases, having a population with a Muslim majority has not guaranteed the right to practice Islam. 

Regimes which have arisen recently based upon the alleged motivation of creating an Islamic state have faced stiff resistance.  The Taliban in Afghanistan were isolated until being removed from power during the United States led invasion in 2002.  The Council of Islamic Courts in Somalia was on the verge of unifying Somalia under strong central control for the first time in decades until intervention by Ethiopia defeated the Council of Islamic Courts.[7]  Despite being one of the few democratically elected groups in the Middle East, Hamas has been marginalized by nearly all of the West and much of the Muslim world in its time in power in Palestine.[8]

What is the impetus to keep Islam out of mainstream politics and life?  What fears lie behind the creation of an Islamic state?  How real are these fears?  Or are these fears similar to the fears of the spread of communism during the Cold War?  Is there a clash of civilizations which threatens freedom, democracy, and the use of reason? 

The Taliban’s reign in Afghanistan has lent a great deal to the international fear that Islamic politics foster terrorism.  The Taliban regime gave a safe haven to international terrorists, who carried out attacks throughout the world, including the World Trade Center attacks in the United States on September 11th, 2001.[9]  Other Islamic groups, such as Hamas and insurgent groups in Iraq, have attempted to justify the use of violence and suicide bombings as both a political and religious tool.[10]

Human rights and women rights violation raise another specter of concern.  The Taliban produced a poor record in both regards but that poor showing is also shared by other Muslim nations such as Iran[11] and Saudi Arabia.[12]  Regardless of a nation’s justification, the violations are usually closely linked to Islam by public perception.

There is also a fear that Muslims cannot or will not accept democracy.  Most Muslim nations are not democracies.[13]  Attempts to establish democracy in some nations, such as Iraq, have been met with resistance and violence.[14]  In other Muslim nations, such as Pakistan, democracy is consistently overthrown by military regimes.[15]

Looming behind these more apparent and recent concerns is the history of the Islamic empire, which swept from an empty desert on the Arabian Peninsula and toppled the Persian Empire, the Byzantine Empire, and knocked on the door of the Catholic Pope’s vanguard in France.  Critics and skeptics of the Islamic state warn against non-Muslims being placed into a dhimmi[16] status, the spread of Islam by the sword, and the complex of jihad which allegedly divides the world into two warring halves; the land of Muslims and the land of infidels.[17] 

In order to address the fear of the Islamic state in the 21st century, the first step is to examine the modern Islamic state.  Often, people fear what they do not understand and very little has been espoused, by either Muslims or non-Muslims, about the parameters and regulations of the modern Islamic state.  Once this concept is defined, one can move forward and examine whether it is the Islamic state itself that is the problem or whether there are other factors and concerns which create the conditions that the international community finds so deplorable.




Sources of Islamic Law


The examination of the Islamic state begins with an analysis of the laws and rules which create Islamic doctrine.  Muslims believe Islam was the original religion imparted on the first man, Adam, and it has been transmitted through over one hundred thousand prophets since that point.[18]  Muhammad is viewed by Muslims as the seal of prophets[19] and the end of revelation from God to humanity.[20]  From Muhammad, Muslims find several sources of law which dictate the proper practice of Islam.

The Quran

            The Quran is commonly understood to be the Muslim holy book or the Muslim equivalent to the Bible.  The Quran, however, differs from the Bible.  The Bible is not a text directly transmitted by Jesus.  Rather, the New Testament relates select biographies of Jesus through the Gospels of his companions.[21]  The Quran is considered to contain the original verses as uttered by Muhammad.  Furthermore, the Quran is seen as the actual word of God and Muhammad is a medium for the transmission of the Quran.[22] 

            The transmission of the Quran began when Muhammad reached the age of forty and it continued until his death at age sixty-three.[23]  Upon receiving revelation, Muhammad would teach the verses to both a gathering of men and a gathering of women.[24]  Many of Muhammad’s followers memorized the text of the Quran in totality.[25]  Others memorized smaller portions.  Muhammad’s followers would also record the revelation on palm leaves, tree bark, and the shoulder bones of camels.[26]  The totality of the Quran was compiled in a single text format by the first Caliph of Islam, Abu Bakr, within two years of Muhammad’s death.[27]

            Muslims believe the text of the Quran is perfectly recorded and unchanged from the time of Muhammad.[28]  No other form of Islamic law can make the same claim of accuracy.  Because of the accuracy of Divine Law transmitted through the Quran, the Quran is viewed as the highest authority.[29]  All other forms of Islamic law find their direct or indirect empowerment through the verses of the Quran.

            While no law stands higher than the Quran, it is important to note that Islam allows Muslims flexibility in the practice of these absolute commands.  For example, if a Muslim was near death due to starvation and only the meat of a pig was available to him, then it would be permissible for the Muslim to eat that meat rather than die.  The preservation of life stands higher than religious practice.[30] 

The Traditions of Muhammad

            The Quran expressly authorizes the conduct of Muhammad to be a foundation of law for Muslims.[31]  Many of the day to day activities are actually based in the teachings of Muhammad.  For example, the procedure by which a Muslim offers his five daily prayers is not explained in the Quran.  Rather, this key practice in the religion is found in the teachings of Muhammad.

The teachings of Muhammad are identified by Muslims in many different manners, including the sunnah[32], the hadith[33], and the sirah[34] of Muhammad.  For the purposes of this work, they will be collectively referred to as the traditions of Muhammad.  The traditions of Muhammad were noted by his companions and transmitted to future generations by a chain of narrators.[35]  Later scholars, such as Bukhari, would compile these traditions by learning from various teachers throughout the Muslim world and cross-referencing the chain of narrators.[36]   The actual science of this recording method is a lengthy topic and what is important in this instance is the importance Muslims lay in the traditions of Muhammad.

            The teachings of Muhammad are classified in several different manners.  First, there are the actions or behavior that Muhammad has taught his followers to conduct or avoid.  Muhammad would instruct his followers on both affirmative and negative actions and the importance of those actions.  Some actions became obligatory to undertake or avoid while other actions became recommended.[37] 

Second are actions and behavior observed by Muhammad as to which he was silent.  It was a duty of a Prophet to forbid evil.  Muslims believe that if Muhammad was to view something which was contrary to Islam, he would intercede and terminate that activity.  His silence was seen as tacit approval.[38]  Lastly, Muslims strive to follow Muhammad’s own actions in which ever role he played, whether it was the role of a father, political leader, or military leader.[39]    

The traditions of Muhammad constitute a primary source of Islamic law.  No Islamic rules or laws can violate the teachings of Muhammad, as it is directly empowered by the Quran.  Like the Quran, the traditions of Muhammad cannot be changed by subsequent individuals.  The divine revelation can only be changed by God and the teachings of Muhammad can only be changed by Muhammad or a subsequent prophet, which is impossible according to Muslims. 

The Examples of Previous Prophets

            Similar to the traditions of Muhammad, the examples and information about previous prophets also constitute a source of Islamic law for Muslims.[40]  Actions carried out by Moses, Noah, David, Solomon, and Jesus[41] are given some weight by Muslims.  These actions are subject to specific abrogation by the revelation of the Quran or the traditions of Muhammad.[42] 

              This is a very limited source of law for Muslims.  Although Islamic traditions claim over a hundred thousand prophets, fewer than thirty are identified and can be used in this respect.[43]  Furthermore, the only viable information about these prophets which can translate into evidence of Islamic law is what is known about these prophets through the Quran and the tradition of Muhammad.  External sources of information on these prophets, such as Christian or Jewish theology, are not given weight in Islamic law.[44]




The Use of Reason and Analogy

Two principles guide the use of reason and analogy as a source of Islamic law.  First, there are Muhammad’s instructions to Mu’adh ibn Jabal, upon his appointment as Governor of Yemen. 

On the eve of his departure for Yemen, he [ibn Jabal] was received in an audience by the Prophet [Muhammad] (peace be upon him) who asked: “How will you decide cases referred to you?”  “By the Book of God,” he answered.  The reply was correct but the Prophet (peace be upon him) asked: “What if you do not find the answer in it?”  Mu’adh ibn Jabal said: “By the Sunnah [tradition] of the Prophet (peace be upon him).”  This reply was also correct.  But the Prophet (peace be upon him) persisted: “What if you don’t find the answer there either?”  He responded that in that event he would exercise his own reason and try to seek a solution.  The Prophet (peace be upon him) was plainly pleased with the answer.  Raising his hands towards the sky he proclaimed: “O Allah!  I am happy at the response of the messenger of Your messenger.”[45]

The tradition related here goes down a hierarchy of resources a Muslim leader or jurist should look to for guidance in legislating decisions.

            Second, it is a recognized principle in Islam that what is not explicitly prohibited by the Quran and the traditions of Muhammad is permissible.[46]  When Islam was first revealed to Muhammad, it contained very few injunctions.  For example, alcohol was not initially prohibited.  Before specific guidance from Islam, the common laws and traditions of the culture continued.[47] 

            These points are crucial to Islamic law for two reasons.  First, it explicitly recognizes that not every situation which will be encountered by men can be answered through a black and white perusal of the Quran and the traditions of Muhammad.  Second, it authorizes the use of human reason and intellect to find the best method available within the bounds of the Quran and the traditions of Muhammad. 

            The use of reason or analogy to understand situations not expressly covered by the Quran and traditions of Muhammad does not create a binding authority upon all Muslims.  Rather, this field expands as the realities facing Muslims changes over the centuries.  The political and international structure during the 10th century is dramatically different from the political and international realities of the 21st century.  The application of reason and analogy prevent the religion of Islam from becoming an outdated and stagnant creature.

            The use of reason and analogy to establish principles of Islamic law is reserved for scholars and experts in Islamic jurisprudence.[48]  Ibn Jabal, for example, was considered such an expert in Islamic jurisprudence.[49]  While the common Muslim is encouraged by the Quran and the traditions of Muhammad to use his own reason in his day to day life, Muslims are very often enjoined to seek the council of scholars and leaders when confronted with questions which do not have concrete answers.  Furthermore, Islam also encourages those Muslims who seek religious knowledge to learn under the guidance of qualified scholars rather than alone.[50]    


            A tradition of Muhammad relates, “My people will never be unanimous in error.”[51]  Another tradition relates “What Muslims agree to be good is also good in the sight of God.”[52]  When Muslim jurist reach a unanimous opinion, that opinion has the same validity as the Quran.[53]  That opinion, however, can be abrogated or changed by another unanimous opinion in the future.[54] 

            Divides in the Muslim world have weakened the use of consensus as a tool of modern day Islamic law.  No institution is established to facilitate the creation or consultation of a consensus opinion.  It was a much stronger tool in the early days of Islam when the number of Muslims and jurists was relatively smaller and far less dispersed.[55]

The Example of the Rightfully Guided Caliphs

            A tradition of Muhammad relates, “So hold fast to my sunnah [tradition] and the examples of the Rightly Guided Caliphs who will come after me.”[56]  The caliph is the deputy of Islam who took leadership of the Islamic state after Muhammad’s death.  There is no rule for determining which caliph is to be considered “rightly guided” and which is not.  The consensus of Sunni Muslim scholars identifies at least four caliphs: Abu Bakr Siddique, Umar ibn Khattab, Uthman ibn Affan, and Ali ibn Abu Talib.[57]

            Since the first four were companions of Muhammad, one can find mention of them in the traditions of Muhammad which lend further evidence to their position as “rightfully guided.”  In one tradition, Muhammad mentions the four names in conjunction with six others as his ten companions that were given the glad tidings of paradise, ensuring their piety in this world and their success in the hereafter.[58] 

            In another tradition, Muhammad specifically highlights the qualities of Abu Bakr and Umar.[59]  In another tradition, Muhammad relates that whichever path Umar chooses to walk, the devil chooses another path.[60]  The traditions relating to the elevation of both Abu Bakr and Umar among the companions of Muhammad are numerous.

            For the purposes of this paper, the examples of Abu Bakr and Umar are utilized for two reasons.  First, Abu Bakr and Umar, according to the traditions of Muhammad and the opinion of the majority of Sunni scholars, were pious men who stood fast to the teachings and way of Islam.[61]  Second, both men represent an example to mankind which cannot be found during the time of Muhammad.  Both men represent the Muslim ruler who was not endowed with prophethood.  They are the first Muslim rulers who were limited by a completed religious constitution.  As such, their traditions are very relevant for Muslims living in an age where no Prophets are available for active guidance.[62]

Additional Sources of Islamic Law

            This section does not represent itself as the totality of Islamic law.  For purposes of this paper, however, these are the primary sources of law which will be used to create the initial framework of the 21st century Islamic state.  Further examination of these sources of law and additional sources of law will help in critical review of the initial framework presented in this paper.



















            Two preliminary questions must be answered before the form of the Islamic state can be discussed.  First, does Islam require its followers to establish a state based upon Islamic laws and principles?  Second, if Islam does require a state, then what is the ultimate purpose of this state?

Does Islam seek to establish a nation-state?

Muhammad’s life provides strong evidence that Islam requires Muslims to establish a state.  Muhammad acted as a prophet for twenty-three years of his life.  While he spent much of that time preaching, he also spent much of that time involved in various political activities to ensure the stability and freedom of Muslims.[63]  Among those activities was an investigation into where to establish a nation for Muslims.[64]

            After ten years as a Muslim minority in Mecca, Muhammad and his followers emigrated to Medina, where they established the first Islamic state.[65]  For the next thirteen years, Muhammad conducted himself as head of state.  Upon his death, his companions continued the notion of an Islamic state.[66]  Muhammad began his mission as one man and sought the establishment of a state based upon Islamic law.  If Muslims are commanded, by the Quran, to follow the example of Muhammad’s life, then the example of Muhammad’s life demonstrates the Muslims’ struggle for statehood and then their obligation to maintain and secure that state.

            Muhammad contemplated the continuation of the Islamic state in his message to his followers to follow the rightly guided Caliphs.  Indirectly, he implies that the role of Caliph would be continued to be filled after his death.

            The examples of previous prophets relate a similar path.  Moses, upon escaping Egypt with his Jewish followers, sought to establish a state in Jerusalem.[67]  That state was later established by the prophet Joshua.[68]  Subsequent prophets, such as David and his heir Solomon, were given kingship to secure and maintain the state under Divine law.[69]

            Not every prophet established a state but not every prophet was as successful in propagation of the divine message. Noah, for example, only had as many as seventy followers during a span of nine hundred and fifty years.[70] 

            There is also the Islamic principle of baya.  A baya is a pledge of loyalty given from a follower to a leader.[71]  One the traditions of Muhammad relates that a Muslim who dies without giving baya to a leader, dies as if he lived in the time of ignorance.[72]  The caliphate, ruler, or governor of a region is also seen as the individual who leads prayer and serves as a spiritual leader.[73]  Islam, through several other traditions of the Prophet, stresses the importance of the leadership of groups.[74]

            Leadership and maintenance of the state was foremost on the minds of Muhammad’s companions upon his death.  Upon the death of a Muslim, he is to be buried by the next day.  But the companions of Muhammad delayed the burial of Muhammad for three days to determine the leadership and future of the current Islamic state.[75]  Abu Bakr and Umar both continued to maintain the Islamic state during their rule and saw their work as a duty and obligation to God.

            Indirectly, a number of traditions speak about the character of rulers and the conduct of leadership.[76]  Although this does not expressly mandate an Islamic state, they do support that Muslims will organize in a state under the leadership of one or several individuals.  A political and human reality recognized by Islam is that the world is divided into nations and tribes.[77]             

            In Islam, there is no principle of separation among different facets of life.  Islam does not strive to be a religion which is contained only in the religious realm.  Muhammad was not just a spiritual prophet.  He was a father, a husband, a general, a statesman, and a leader of a state.  In every aspect of his life, he instituted Islamic rules and principles.  He never demonstrated a separation among secular, material, and spiritual aspects of his life. 

            Because Islam encompasses every facet of a Muslim’s life and because Islam contemplates nations and tribes would be a facet of a Muslim’s life, one concludes that Islam expects Muslims to organize their nations and tribes by Islamic principles.  Conversely, it would be considered improper for Muslims to put aside their religious principles when carrying out the conduct of state as neither Muhammad nor any of his companions did so when entrusted with government positions.

What is the purpose of the Islamic State?

            The purpose of the Islamic state has long been misconstrued by Muslim politicians and advocates for Islamic statehood.  Many Muslims believe the establishment of an Islamic state will end corruption throughout the Muslim world.  Others believe it is the only route for Muslims to overcome the lingering oppression of colonial forces.  Still others believe the establishment of an Islamic state would bring economic and social success and rid the nation of vices, hunger, and poverty.

            Vice, hunger and poverty existed within the Islamic state of Muhammad, Abu Bakr, and Umar, however.  In fact, during the caliphate of Umar, a devastating famine struck the Muslims, killing many.[78]  The Islamic state has never sought to promise Muslims success, prosperity, or ease.  It would be ironic for the Islamic state to settle hardships for the people when the religion of Islam asks its followers to look upon hardship as a blessing.[79]

             The exchange between Muhammad and the people of Medina prior to the creation of the first Islamic state gives evidence of the purpose of the Islamic state.  Muhammad met with the people of Medina before he received their vote of support as their leader.  In that meeting, he asked them to pledge their lives and wealth to protect the religion of Islam.  The people of Medina asked what they would receive in turn.  Muhammad simply replied, “Paradise.”[80] 

            A Muslim’s expectation for obedience to the faith of Islam is paradise in the hereafter.  Similarly, a Muslim’s expectation for establishing a state based upon Islamic principles would be to attain paradise in the hereafter.  This is not to say that the Islamic state is expected to only take an active role in religious affairs and ignore the rest of the world, as this was not the practice of Muhammad.  Rather, the purpose of establishing and maintain an Islamic state, for individual Muslims, is like any other religious practice.  The expectation of worldly success and the frustration when that worldly success was not realized by the Islamic state has led to the disillusionment of the relevance of an Islamic state.[81]   

            Understanding this purpose is important to understanding the Islamic state.  For other states, it might be advisable to conduct activities which are immoral or unethical in the hopes that the ends will justify the means.  Although Islam recognizes the principles of deception in warfare and choosing the lesser evil when confronted with two evils[82], Islam does not condone an “ends justify the means” approach.  This is rationalized by the Islamic belief that the ends are in the control of God and the means are the only aspect which is in human control.[83]  An Islamic state would violate the principles of Islam and its purpose if it were to enact unlawful means to achieve favorable ends. 

            In a modern context, this idea of implementation can be expanded to include religion.  The Taliban and other conservative Muslim regimes have gone to great lengths, violating human rights and other Islamic principles, to see to the establishment of a proper Islamic society.  While their end may be something they had considered proper, the implementation of improper means, even to a religious end, would be inappropriate of an Islamic state.

Multiple Islamic States

            Can more than one Islamic state exist at the same time?  The evidence suggests that there can only be one caliphate.  When Abu Bakr was chosen by the people as the caliph, the people did not contemplate sharing power.  Rather, the concept of sharing power between two groups was explicitly rejected.[84] 

            On the other hand, when tribes joined the religion of Islam or pledged their support to the Islamic state, Muhammad never rearranged the leadership.  He allowed the leaders of a tribe to remain in their positions of leadership.  This lends evidence that, while the office of caliphate likely cannot be split, multiple Islamic states owing allegiance to one central caliphate can exist.[85]

Mandate of the Islamic State

            Muslims are prescribed to establish an Islamic state.  Religion and politics were not separated by Muhammad and cannot be separated by modern Muslims.  Muhammad spent nearly half his time in prophethood living as a religious minority in a non-Muslim society but seeking to establish a state.  He spent the other half of his prophethood leading the state and forming Islamic laws and principles for statehood. 

            The Islamic state is a state that is created to fulfill this religious obligation and follow Muhammad’s example.  The central purpose of its establishment is paradise and, because of this purpose, the Islamic state should not implement prohibited means to reach any end, whether that end is favorable or not.  The establishment of an Islamic state, in the hearts and minds of Muslims, should not be correlated with worldly or material success.  Such a correlation would create disillusionment for proponents of an Islamic state.  In Islam, an Islamic state is as vulnerable to the twists and turns of circumstance as any nation.



Form of Governance


            This section seeks to explore the framework of the Islamic government.  This framework has been split into three subsections.  The first subsection explores the head of state.  The second subsection explores checks and balances in the Islamic state.  The final subsection explores federalism in the Islamic state.

The Caliphate

Selection of the Head of State

            Historically, the Islamic caliphate has become synonymous with monarchy and authoritarian rule.  The Ottomans, the Abbassaids, and the Ummayyads all represent three different dynasties of Caliphates.  These rulers were monarchs and the people had little choice in which individual ascended to power.  Today, in many Islamic countries, monarchs or authoritarian governments are in power.  Some nations claim to be democracies but are far from it.  Democracy has made some headway in the Muslim world but often it exists where Islam has been pushed away from politics.

            Evidence of authoritarian rule and monarchies in Islamic law as part of the Islamic state are few.  Past prophets, such as David and Solomon, were kings.  Muhammad’s leadership among Muslims was divinely ordained and not subject to the political process.  Mentions of kings, such as the ones in the stories of Moses and Joseph, are present in the Quran, although these examples are details of a prophet’s story and not religious injunctions.[86]

            The examples of monarchs and authoritarian rulers in Islam have one strand in common, divine appointment.  These examples represent a break in the democratic process because they are religious commands which, like the Quran, are not open to democratic amendment. 

            Democracy, however, is given strong evidence in Islam.  First, the principle of baya arises once again.  A baya is a voluntary action which forms a contract between the follower and the leader.[87]  It is not something which can be entered into unilaterally, as the baya must be given by one party and accepted by the other.  It cannot be compelled or coerced by human forces, even though the giving of a baya in general is compelled by religious precepts.[88]

            The baya is a combination of a vote and a pledge of citizenship.  A simple vote from one individual to a candidate creates no mutual obligations between the two parties.  The baya, on the other hand, creates an obligation between the two parties.  The one who gives baya is pledging obedience to the laws of the state while the one taking the baya is pledging service.[89]  Without receiving a voluntary baya, no caliphate can be chosen or dubbed as the next ruler of the Islamic state.[90] 

            Muhammad’s establishment of the first Islamic state also provides evidence for democracy.  Muhammad had lived for the first ten years of his prophethood in Mecca as a religious minority.  During this time, he would appeal to different tribes to offer him their protection so he could continue his mission in peace.  He would also relate the message of Islam to visiting tribes, as Mecca was a foremost city of trade and religious pilgrimage.[91] 

            As the persecution of Muslims rose in Mecca, Muhammad received permission from God to emigrate to another society and continue his mission under more favorable conditions.  During this time, the people of Medina had become Muslim and they came to meet with Muhammad under a palm tree.  At this time, Muhammad explained to the men and women from Medina his aspirations for their city.  He also explained the obligations Muslims would have in this state.  He then asked for the baya of the people of Medina.  The people of Medina, both men and women, gave their vote to Muhammad.  It was in this manner that Muhammad became the head of state over the first Islamic state in Medina.[92]

            Monarchy and authoritarian rule without divine ordinance was not established in Islam until Mu’awiya ibn Abu Sufyan promoted his son Yazid as the caliphate after him.[93]  Upon Muhammad’s death, the companions of Muhammad engaged in extensive consultation to determine the next caliphate.  Abu Bakr recommended that the Muslims choose either Umar or another renowned companion of Muhammad.  In turn, Umar recommended the people choose Abu Bakr and, upon his endorsement, the Muslims gave their baya voluntarily to Abu Bakr.[94]  A similar consultation was held for Umar, who was also chosen with very little objection.[95]

            The 7th century process of baya was a primitive system of voting and renewing one’s citizenship.  In the Islamic state, both were necessary as power passed from the hands of one caliphate to another.  This concept translates easily into a modern democracy in the 21st century.  According to the religious evidence, a caliphate should be chosen through the democratic process.

            Another important note is that the caliphate was not necessarily viewed as a ruler over the people.  Rather, the caliphate was a position of servitude to the people.  Umar described himself as a servant of all the people.[96]  Umar would spend his nights carrying out patrols with among the people of Medina.  During these patrols, he would assist any individual he came across.  At one time, he cooked dinner for a pair of Bedouins while his wife assisted a pregnant woman with the birth of her child.[97]  A ruler as a servant is more consistent with democratic ideals then monarchial or authoritarian ideals.

Qualities of Leadership

            Islam mentions many qualities which a leader or a caliph should possess.  Many of the qualities, such as piety and intelligence, are self explanatory and predictable.  Islam, however, does establish one unique but essential quality of leadership.  A Muslim appointed in a position of power cannot ask for the appointment.[98]  One of Umar’s requirements when evaluating a candidate for governor of a province was judging whether or not the individual coveted the position.[99]

            This quality is important to the formation of the Islamic state because it affects the process by which a democratic leader is chosen.  In the Islamic state, there can be no self-promoting campaigns as is often seen in modern democracies.  An individual like Colin Powell, who has repeatedly refused to run for the office of President of the United States, would possess this quality while the majority of U.S. presidents would not.[100]



 Removal of the Head of State

            The principle that the caliphate could be removed was first established by Abu Bakr.  Muhammad could not establish such a principle because of his role as a prophet to Muslims.  Abu Bakr, however, was the first ruler of an Islamic state who was not a prophet.  The traditions of both Abu Bakr and Umar show that the caliph was subject to impeachment and removal.

            During Abu Bakr’s inauguration speech, he remarked about his contract with the people.  Abu Bakr informed the people that if he violates the principles of Islam, the baya would dissolve and the Muslims would have no obligation to follow him.  Such a violation would result in the removal of the caliph and the need for another.[101]

            Similarly, during a speech given by Umar during the time of his caliphate, he asked his citizens their course of action if he went astray as a ruler.  One individual responded that they (the citizenry) would straighten him with their swords.  Umar answered by thanking God his citizens still followed the principles of Islam.[102]

            Some of the traditions of Muhammad place upon the people the obligation of speaking out against corrupt caliphates and tyrants.  In one tradition, Muhammad informs his followers, “Whoever amongst you sees an evil, he must change it with his hand; if he is not able to do so, then with his tongue; and if he is not able to do so, then with his heart; and that is the weakest form of faith.”[103]  The use of the word “must” makes this tradition of Muhammad as an affirmative obligation.  In another tradition, Muhammad informs his followers that the best martyr is the man who is killed for speaking out against a tyrant.[104]  A third tradition of Muhammad describes how, if evil is not stopped, the entire society could face the consequences.[105]  These traditions place a strong focus of correcting ones rulers upon the people. 

            These traditions seem to come into conflict with another tradition of Muhammad.  Muhammad has extolled his companions to face oppression with patience and perseverance and not to descend into disobedience and civil anarchy.[106]  Rebellion which leads to civil strife and anarchy is prohibited in Islam.[107]  Many of the monarchs and authoritarian rulers who have arisen in Islam have used these traditions to their benefit to further empower their rule.

            Upon further analysis, however, there is a clear distinction between the first set of traditions and the second set of traditions.  The first set, which obligates Muslims to act against injustice, even if it is the injustice of a ruler, does not enjoin Muslims to rebel and create civil strife.  Muslims, rather, are to use the vehicles of the state to bring the caliphate to justice for his infractions. 

            The second set of traditions applies when there are no vehicles of the state to bring the caliphate to justice or the vehicles are simply undermined and ineffective.  In this situation, unless the government is prohibiting the ability for Muslims to obey the commands of God[108], patience should be exercised.  Protest, rallies, lobbying for change, non-violent mobilization, and civil demonstrations are permissible and encouraged.  Civil strife, armed conflict, and civil war, however, are far more damaging than a harsh and oppressive government.

            Reason would dictate that it would be prudent for the Islamic state to establish a system to voice grievances, bring to trial, and remove the caliphate.  There is no Islamic prohibition to such a system and the people can choose the system which is most effective to removing the caliphate without causing civil war and strife.

            There is also no Islamic principle on term limits.  Muhammad could not have had a term limit.  Abu Bakr and Umar served as caliphates until their death.  This creates an inference against term limits but Islam is silent to whether they could have had their rule limited by terms or resignation.  In this situation, since there is no explicit prohibition, one could contemplate that it would be permissible according to the needs of the Islamic state.

Checks and Balances

            Two principles of Islamic law provide evidence for checks and balances.  First, the caliphate can have his actions and laws evaluated for legitimacy to determine if they violate the principles of Islam.  Second, the caliphate is enjoined to seek the consultation of others when enacting decisions which are not explicitly answered in the Quran and the tradition of Muhammad.

According to Abu Bakr’s inauguration speech, the caliphate was a position which could not transgress the Quran or the traditions of Muhammad.  Muslims generally have an obligation to enforce that principle upon their caliphs.[109]  Historically, scholars of the religion have often been the individuals who stood against caliphates who transgressed, such as Ahmad ibn Hanbal who opposed the oppression of the Abbasid caliphates. 

This is not a power that has been restricted to scholars of the religion.  For example, Umar sought to lower the dowry paid by husbands to their wives because excessive demands were limiting the number of men who could be married.  A woman stepped forward and objected stating Umar could not remove a right that was granted by the traditions of Muhammad.  Umar, realizing his transgression, rescinded.[110]

            Consultation is a highly regarded principle in Islam.  Muhammad, even in his position as a Prophet, often took consultation from his companions about the right course of action in situations where the Quran and divine revelation was silent.[111]  This practice was continued by the followers of Muhammad who assumed positions of leadership.[112]

            During the time of Muhammad and the early Muslims, consultation was carried out by the companions of Muhammad.  Many were affirmed in their piety by the traditions of Muhammad.  The wealth of individuals who could be relied upon by Abu Bakr and Umar made both the principles of evaluation and consultation simple.  There was no need to establish a codified system. 

            In addition, during the time of Muhammad, Abu Bakr, and Umar, it was far easier to approach the caliphate and propose suggested governmental actions.[113]  Upon these suggestions, the caliphate could decide to enact the government rule or abstain.  Any person in the Muslim society was able to approach the leaders and make such a request, including those who are not of the Muslim faith.

            Just as reason dictates a codification of a removal process to avoid civil strife, reason would dictate a codification of the process of evaluation and consultation to take into account the more complex nature of society in the 21st century. 

Laws and government action can face scrutiny and evaluation by an independent board of jurists and scholars.  The empowerment of such a board is necessary to peacefully check any executive actions which transgress on Islamic principles.  The process by which disputes are brought forth can be designed as what best accommodates the state. 

Similarly, a body of individuals who represent different groups of the people could gather for collective consultation with the caliph.  The tradition of consultation could be codified by mandating consultation with this board and consideration of its legislative suggestions.[114]  It is important to note that this body of consultation and suggestion could never override the final edict of the caliphate as long as the edict of the caliphate did not violate Islamic principles.

The system of evaluation and consultation creates a loose check and balance on the caliph.  It does not, however, create a strict system of separation of powers.  Lawmaking is not isolated into the branch of consultation and the caliph is not restricted under Islamic principles from creating law.  Both Abu Bakr and Umar originated and enacted laws during their time as caliphate.  Neither is the caliph restricted from adjudication.  One of the roles of the caliph during the time of Abu Bakr and Umar was to act as a judge between different parties. 

The caliph is able to delegate power as he chooses.  The evidence is unclear whether one can establish a rule that a caliph must delegate powers.[115]  The level of power entrusted in a caliph further signifies the need for a proper system of removal if the caliph is found wanting in the integrity of his work.


            The Islamic state under Muhammad, Abu Bakr, and Umar had both aspects of a centralized and decentralized state.  During his rule, Muhammad would appoint different individuals to governor posts throughout the region.  He would give them guidance, as he gave to Muadh ib Jabal.  He expected those governors to legislate under their own discretion. 

            Abu Bakr and Umar closely followed this practice of Muhammad.  They limited their role to resolving disputes which arose between the governors and the citizens and ensuring the governors continued to act with proper discretion.  They would employ various agents to carry out these tasks and, at times, personally investigate matters.  Strict standards were set upon the governors which went above and beyond the standards set upon ordinary Muslim citizens.[116]

            Despite their relative autonomy, the governors were essentially employees of the caliphate.  The caliphate reserved the right to empower and remove governors.[117]  Although the caliphate did not generally legislate over the governors, there is no solid evidence which states that they could not do so. 

            On the other hand, the caliphate’s role as a servant to the people calls upon him to take into consideration the wishes and desires of the people.  The caliphate’s obligation to take council and consultation in decision-making also forces the caliphate to consider the wishes and desires of the people. 

            The codification of a system which would respect the rights of the caliphate, enforce the obligations of the caliphate, and recognize the discretionary powers of the governors granted by Muhammad and the first two Caliphs would create a loose federalist system.  In choosing governors, a system can be created which would allow citizens to provide to the caliphate their opinion on possible candidates considered for the post by the caliphate.  There is no evidence that suggests the caliphates polled the people of a region before the appointment of a governor.  The governors appointed during the time of Abu Bakr and Umar, however, were often renown companions of Muhammad whose piety and ability had been mentioned in Muhammad’s traditions.[118]  These men had received an endorsement of a divine nature. 

            Modern day governors would not have such an endorsement.  It would be prudent for the caliphate to take into account both the opinion of the people within a region and the body of representative individuals established for consultation on decision-making.  The codification recognizes the power of the caliphate to choose the governor but also obligates the caliphate to seek popular approval of the appointment.

            If a caliphate was to remove a governor on a whim or because of a conflict of interest which compromised his integrity as a caliph, he would be violating the Islamic principles which have empowered him.  Rather, the proper method of removal for a governor would be through a formal process by which the governors were afforded a chance to face the accusations and problems which are attributed to his governorship.  On occasions where governors would be accused of transgression by his people, Abu Bakr and Umar would summon the governor for a formal adjudication before the caliphate.[119]  Governors were not summarily dismissed on a whim or without proper cause.

            As lesser heads of state, the governors would also be subject to the same checks and balances as the caliphate, including the need for consultation before decision-making and evaluation of the decision-making. 

There is no hard line rule in regard to the distribution of powers between the central caliph and the regional governors.  There is some evidence that the power of the caliph can be delegated to lesser offices and governors.  The Quran, in relating the story of Moses, states, “And appoint for me a minister from my family, Aaron my brother; fortify me through him and have him share my task.”[120]  Moses was regarded as a caliph over his people and he asked God to share this task with his brother Aaron.  If Moses could share his prophethood and powers as caliph with his brother, then the Islamic state could be authorized to delegate powers of the caliph to lesser governors as necessary.[121]  This power distribution, therefore, can be formulated by the Islamic state to best fit the needs and situation of the time. 

Form of Governance

            The explicit codifications of the Islamic state can be left to the needs of the individual state.  This examination, however, provides several relevant points.  A caliphate is chosen through a voluntary democratic process.  His role is viewed as a servant of the people.  He is obligated to follow the tradition of consultation in matters of governance.  His decisions are subject to evaluation of adherence to Islamic principles.  He can be approached by any individual or representative of individuals for both the proposal of government laws or objection to the enactment of government laws.  The state itself is organized in a loose federal system which takes into account the rights and power of the caliphate and the obligations of the caliphate to the people of individual regions and the guidance of Islamic principles in general.  No hard line rule exists in regards to the distribution of power between the caliphates and the governors, although it is understood that the caliphate is the commander-in-chief of the armed forces.




















Women in Government


            There has never been a female caliph in Islam, which begs the question if a woman can be the head of an Islamic state.  Women can serve in the military, as Umm Waraqah fought alongside Muhammad in the early wars between Mecca and Medina.[122]  Women also served in the army during Abu Bakr’s reign as caliph.[123]

            According to some sources, Muhammad appointed Umm Waraqah as a leader and imam of a mosque in her locality and men would pray behind her.[124]  She continued to discharge these duties throughout the reign of Abu Bakr and Umar.[125]  Her position, however, is considered more of an exception to the rule then a rule itself.[126]  Women also reprimanded caliphs and offered them their advice.[127] 

            The evidence indicates that it is possible that women can serve in every role of government save the caliph.  They have a role in the military, in civil positions, as governors, and as individuals who can both evaluate law and offer consultation.







Church and state


            In the 21st century, most modern nations have gone to some lengths to separate the institution of religion and politics.  Even in nations which recognize official religions, they strive to create a political system which is as secular possible.  Islam, on the other hand, makes no distinction between spiritual and secular spheres of life.  Both spheres are encompassed within the religion of Islam.  The Islamic state would also not make a distinction between the religious and secular components of life. 

            Three questions arise as concerns to the Islamic states combination of these two spheres.  Does the Islamic state impose the religion of Islam upon its Muslin and non-Muslim citizens?  Does the Islamic state treat non-Muslims in a discriminatory manner?  How does the imposition of Islamic law, or the Shariyah, affect the lives of Muslims and non-Muslims in the Islamic state?

Imposition of Religion

            The Islamic state cannot impose religion upon either Muslims or non-Muslims.  Strong and clear evidence is present in both the Quran and the traditions of Muhammad to substantiate this principle.  In addition, Muhammad and his companions did not compel Islam through the use of force.[128]  There is only one situation when religion is compelled and the evidence of this situation has been exploited to show the Islamic state as a state which imposes religion.  Further analyses of the situation, however, would demonstrate a contrary conclusion. 

The Quran states, “There is no compulsion in religion.”[129]  The verse expressly forbids the use of compulsion to force obedience in Islam.  The verse encompasses both Muslims who do not practice their religion and non-Muslims who are outside the religious bounds of Islam.  Muslims are enjoined not to use compulsion to enforce religion.  Naturally, the state would be barred from the use of force or other compulsory means to enforce religion.  Rather, the state would have to be particularly aware of its policies to ensure that it is not indirectly forcing religion upon the people.  For example, mandating prayers or creating a benefit system which made it disadvantageous for the general population to be anything but Muslim would create compulsion in religion and this is expressly forbidden by the Quran.

Furthermore, one of the most important traditions of Muhammad relates that the reward a Muslim receives for carrying out an action is based upon his intention.[130]  A Muslim is expected to follow Islam for the sake of God and carry out all actions for the sake of God.  Other traditions of Muhammad emphasize this point that a Muslim’s rewards are only based upon his own honest and sincere intention.[131] 

The imposition of Islam is inconsistent with Islam’s emphasis on a believer’s intent.  If the state mandated that men must pray at a certain time or face punishment, the man would pray to avoid punishment from the state rather than pray for the sake of God.  Rather than encouraging the practice of Islam, compulsion on either Muslims or non-Muslims by the Islamic state would distance the citizens of the state from the practice of the religion.[132]   A citizen cannot act on the religion of Islam to satisfy the laws of the state.  He can only act on Islam by his own willful intention for the sake of God.  The state has no role in forcing any religious practice upon its citizens.

Another Islamic principle lends support to this conclusion.  Muslims believe that acceptance of the religion of Islam is not something which can be attained through human means.  Rather, when a man or woman chooses to become Muslim, it is an act of God to put faith into that individual’s heart. [133]  For an Islamic state to push Islam upon non-Muslims would be an attempt to empower the state to fulfill a role of God.  This action is so offensive to Islam that it is regarded as the unforgivable sin.[134]

Muhammad, Abu Bakr, and Umar did not compel religion upon other people.  During the time of Umar, when the Muslim empire expanded vastly, the conveyance of religion was passive.  Muslims entering a new city would establish a center of prayer.  If the inhabitants of the land wished to learn about Islam, they would come to the center of prayer themselves.  Otherwise, they were able to live autonomously practicing their religion and under their own religious laws.[135]

There have been occasions when Muhammad, Abu Bakr, and Umar have adjoined a defeated combatant to become Muslim or face the sword.[136]  The Quran also contains verses which direct Muslims to engage in battle with non-Muslims until they accept Islam, create a treaty of peace, or submit.[137]  These examples have been used as evidence that the Islamic state does impose Islam upon others.  All of these situations, however, involve combatants who have transgressed against the religion of Islam and attacked the Muslims.  In these situations, Muslims are obligated to fight and defeat the enemy. 

Acceptance of Islam is not a compulsion in this situation.  Rather, acceptance of Islam is a method by which the enemy combatant can escape punishment for his attack against the Muslims.[138]  These examples and verses are important to ward off Muslims who will kill combatants, believing their acceptance of Islam is insincere.  On one occasion, Osama ibn Zayd, a companion of Muhammad, was about to kill an opponent during a time of warfare.  The opponent accepted Islam but Osama still killed the opponent.  When Muhammad learned of the incidence, he reprimanded Osama, stating that he had no way of knowing the intentions within the man’s heart.[139] 

If an Islamic state was established according to Islamic principles, then the imposition of religion would be expressly prohibited by those same Islamic principles.  Verses and examples where compulsion seemed to be used are examples of warfare in which acceptance of Islam was a means by which defeated enemy soldiers could escape punishment for waging war against Muslims.   

Non-Muslims in the Islamic State

            The historical caliphate which existed over the past several centuries has created many misconceptions about the status of non-Muslims in the Islamic state.  Examples, such as branding, extra taxes, and discriminatory treatment are the result of alternate political realities which have no basis in the traditional Islamic law.  Many of those actions, arguably, would likely fall outside of Islam but it is not necessary to evaluate the practices of the Ottomans or Abbasids.  It is more pertinent to look to how non-Muslims were treated by Muhammad and the initial caliphs.

            Non-Muslims were given the dhimmi status in the Islamic state.  Dhimmi is an Arabic word which indicates that the non-Muslim is under the protection of the Islamic state.[140]  In essence, the dhimmi status made the non-Muslim a citizen of the Islamic state.[141]  As a citizen of the state, the non-Muslim was afforded the full rights of a citizen, save one.[142]  The non-Muslim citizen also had similar obligations of the Muslim citizen.[143]

            It would be inaccurate to equate the non-Muslim citizen as completely equivalent to the Muslim citizen.  First, there is a question if a non-Muslim citizen can vote for the caliph.  A non-Muslim cannot be a caliph similar to how a naturalized citizen cannot become the president of the United States.  It is also questionable whether the non-Muslim can even vote for the caliph, as the religious nature of the caliph’s post would be undermined if he was forced to garner support from those with no obligation to Islam.    

            Second, non-Muslims were always obligated to pay a protectorate tax to the Islamic state.  The amount of this tax has varied throughout time as different innovations of different rules have modified the original intent of the tax.  The original intent of the tax, as established by Muhammad and followed by Abu Bakr and Umar, was to fund the cost of protection for the non-Muslims living in the Islamic state.[144]

            Muslim men are obligated to serve in the armed forces of their nation.[145] This same injunction cannot be placed upon non-Muslims, although there are examples in which non-Muslims fought alongside Muslims.[146] The protectorate tax is given in lieu of having to serve in the military.[147]  The tax can only be levied against those who can actively participate in military combat.  Old men, women, and children should not be charged a protectorate tax.  Non-Muslims who voluntarily choose to serve in the military of the Islamic state are also not charged a protectorate tax.[148]  Lastly, if Muslims failed to provide adequate protection to non-Muslims, this tax was forfeit and returned to those who had paid.[149]

            Aside from these differences, the non-Muslim was a highly protected minority within the Islamic state.  Several traditions relate Muhammad’s concern with the well-being of non-Muslims under the Islamic rule.[150]  Similar concern was shared by the early caliphs.[151] The Islamic state makes no distinction in providing social services to Muslims and non-Muslims.[152]

            While non-Muslims would have a certain sense of political disenfranchisement in their inability to vote for a caliphate, there is no evidence that would bar them from being able to vote for individuals who hold consultation with the caliphate.  The caliphate, throughout history, would employ non-Muslims as advisors and in key government positions.[153]

            Furthermore, non-Muslims would be able to administer their own system of governments and laws within the Islamic state according to their own religious or political understanding.  Jewish and Christian nations within the Islamic empire under Umar would live autonomously under their own religious laws and were allowed even to consume alcohol and pork; two things which are expressly forbidden by Islam.[154]  These autonomous smaller governments could be elected or administered as seen fit by the non-Muslim minority population.    

The Shariyah

            The implementation of the shariyah, or Islamic religious law, is another area where the spheres of secular governance collide with religious edict.  A thorough examination of the complete body of the shariyah is an extensive assignment and will not be covered here.  Rather, there are several guiding principles which are important to note when discussing the shariyah.

            The purpose of the shariyah is similar to the purpose of the Islamic state.  Implementation of the shariyah serves as a path to paradise.  Establishment of the shariyah does not necessarily ward off all evils, crime, and vice in a society.  For example, those who receive criminal punishments according to shariyah law will not have to face an even greater punishment for the crime in the afterlife.[155] 

            Second, the shariyah is not black and white as it has been instituted by modern regimes or characterized by opponents.  The shariyah, especially in regards to criminal law, is open to various forms of interpretation and higher meanings.  Two examples will be used to illustrate the gray scale nature of the shariyah.

            The shariyah prescribes the punishment of the amputation of the hand of the crime of theft.  During the caliphate of Umar, a famine struck with devastated the Muslim nation.  Umar suspended the punishment of theft, reasoning that the punishment cannot be carried out when an individual is stealing out of necessity. [156]  In modern society, this would call upon the Islamic courts to analyze the financial and social condition of the criminal before executing any punishment in regards to the crime. 

            The shariyah also prescribes the punishment for adultery to be death.  There are two caveats to this.  First, in order for the punishment to be carried out, four eye witnesses are needed and all four must be proven to have been credible eye witnesses to the event.[157]  Because of the stringent evidentiary requirement, it is actually quite difficult for anyone to be brought forth under this crime.[158]  The other caveat is Muhammad himself seemed to discourage enacting the punishment.[159]             

Third, the shariyah, since it is a religious law, can only be implemented upon Muslim citizens and non-Muslims are exempt from the shariyah.[160]  As for Muslims, when one becomes Muslim, he is willfully submitting himself to the commands and edicts of God, including the shariyah in Islam.[161] 

            Fourth, and most importantly, the Muslim is instructed by the tradition of Muhammad to cover the faults, sins, and flaws of his brothers and God will cover his sins and flaws in the hereafter.[162]  The Islamic state does not encourage the persecution of every sin by the implementation of strict shariyah punishments.[163]  Based on the traditions of Muhammad, neither Muslims nor the Islamic state should actively seek to enforce criminal penalties from the shariyah upon individual Muslims.  Muslims and the state, rather, are encouraged to avoid accusation and implementation. 

            Lastly, the area of shariyah which creates abject fear, criminal punishment, is very limited in comparison to the entire body of shariyah.  Furthermore, the number of punishments prescribed for criminal activity is very limited as well. 

            Taking the shariyah in its proper context shows a religious law which is more voluntary then enforced, more passive then aggressive, and more considerate of social and financial conditions then applying broad, general, and inflexible rules across different classes of people.

Church and State

            The Islamic state would not separate spiritual and secular elements.  Built into Islam, however, are Quranic rules and prophetic traditions which allow for extreme tolerance and freedom of religion, pre-empt religious compulsion, protect religious minorities, and implement religious laws upon those who voluntarily submit to its decree in order to attain the path to paradise.  These rules and traditions create for the Islamic state a system of religious tolerance that rivals modern day secular states.[164]












Jihad and international relations


            Thus far, the Islamic state has only been discussed as a domestic entity.  As an international entity, what is the function of the Islamic state?  Does the Islamic state adopt the imperialistic standard of the early Islamic empire, expanding and conquering throughout Africa, Asia, and Europe?  Or does the Islamic state play a different role in the modern context?  Also, what does the term Jihad have to do with the foreign policy of the Islamic state?


            The Arabic word “jihad” literally means “to struggle.”[165]  Jihad is not viewed in Islam as the struggle of Muslims against non-Muslims.  Rather, jihad is seen as the inner and outer struggle of the Muslim against his own will and the inclinations of the devil.[166]  Jihad can be undertaken in many different mediums.  It can be undertaken on a personal level to incline oneself to follow the commands of Allah.  It can be undertaken non-violently by advocating for social justice and assistance for others who are struggling through hardship or their own spiritual weaknesses.[167]  It can be undertaken to diplomatically and physically engage those who wish to end the practice of Islam, attack the Islamic state, or create social injustice in the land.[168]

            Jihad has not taken on this context in modern society.  Using verses of the Quran, opponents state that Jihad is an offensive command of Islam which places an obligation of violence upon its believers.[169]  The verses of the Quran which discuss violence, however, are qualified with situations in which violence is permitted as well as rules of engagement.[170]  Furthermore, the Quran states that a Muslim force cannot unilaterally aggress upon an opponent.[171] 

            In the modern context, an Islamic state could carry out jihad in one of several ways.  It could carry out jihad in humanitarian and social justice missions to other nations where natural disaster has caused civil strife.  It could carry out jihad in situations of self-defense where (1) the Islamic state is attacked or (2) an ally of the Islamic state is attacked.[172]  It could also carry out jihad on domestic issues, such as social problems within society.  This brief explanation of jihad does not explain the expansion of the Islamic empire.  The expansion of the empire and the current international situation will be examined in the next subsection.

International Relations of the Islamic State

            Historically, the Islamic state was in constant expansion through both peaceful means and armed conflict.  An examination of this situation and a look at Muhammad’s conduct as a diplomat will set the context of the modern day Islamic state’s interaction on an international level.

            When Muhammad established the Islamic state in Medina, he had to flee for his life from Mecca.[173]  His followers also fled for their lives and there existed a continued state of conflict between Mecca and Medina.[174]  In this warlike context, the first verses authorizing the use of force were revealed in the Quran.  A state of war and peace existed until Mecca was defeated by the Muslim army and the city was conquered.[175]

            Upon conquering Mecca, Muhammad looked to secure his political state.  He fortified his army and made treaties of allegiance and alliance with neighboring tribes and communities, irrespective of their religious identity[176]   No League of Nations or United Nations existed at this time and nations either had treaties of peace or a pretext of conflict.  Muhammad would enjoin different tribes to join the religion of Islam or at least sue for peace between his nation and their nation.  When both efforts were rebuked, the Islamic state would take the necessary actions to secure itself, whether through subjugation of the threat or fortification against attack. 

The expansion of the borders of the Islamic empire continued under Abu Bakr and Umar in the same manner it occurred under Muhammad.  The expansion of nations was characteristic of the historical period.  Prior to the Islamic empire, the Greek, Roman, and Persian Empire had expanded and contracted its borders.  Into the later 16th century, European nations began colonizing and expanding their empires into other nations and continents.  In the 19th century, Napoleon attempted to expand the borders of France throughout Europe as the United States forged westward, taking land from the Native Americans.  From the British Empire to Nazi Germany to Imperial Japan, states prior to 1945 looked to expand their borders and increase their resources.  It would have been both politically and socially naïve for the Islamic state to not accept the reality of international circumstances during this time period and follow a similar example of expanding its borders and resources.

In the modern context, the age of imperial society has ended and new normative regulations and institutions, such as customary international law and the United Nations, have been established.  The United Nations, the Geneva Conventions, and customary international law create treaties of peace and mutual protection of borders for member nation-states.  Since Muhammad’s first course of action was to attempt to create treaties of peace for his state, membership in the United Nations and engagement of this worldwide treaty of peace would be a natural step for the Islamic state. 

Does membership in the United Nations and obedience to customary international law subverts the sovereignty of the Islamic state and places man-made law above the law of the Islamic nation-state?  Two examples of Muhammad acting in an international context answer this question in the negative.

First, Muhammad and his cousin, Ali ibn Abi Talib, met with a Meccan delegation to draft a treaty of peace.  As the treaty was drafted, the Meccans refused to allow the Muslims to use the standard opening of, “In the name of God, the Most Gracious, the Most Merciful.”  The Meccans also refused to allow Muhammad to be referred to as the prophet of God.  Muhammad allowed both of these deviations from Islamic principles in order to draft the treaty.[177]

Second, during the latter years of Muhammad’s reign, he was confronted by messengers from another tribe.  The leader of the tribe claimed to be a prophet as well and demanded half a share in the Muslim lands.  The messengers, who were once Muslim and had apostated from Islam, reaffirmed their belief in their leader being a prophet.  Muhammad remarked that he would have put the messengers to death as per Islamic law except he would not violate the customary international law which protects messengers.[178]  These two instances are a limited survey of examples in which the original Islamic state followed customary international law over exercising its Islamic standards. 

The traditions of Muhammad command respect of international law and seek to establish treaties of peace and cooperation between different nations and tribe.  These traditions encourage the Islamic state to embrace the current international model regulated by the United Nations.  The Quran states, “We [the Creator] have created you in nations and tribes so that you may come to know one another.”  The Quran contemplates the diversity of nations and people which will inhabit the Earth and enjoins Muslims to know and understand their neighbors.

The Islamic state is by no means restricted to joining the United Nations.  Rather, the Islamic state should seek the solution by which it can best abide by customary international law, create treaties of peace, sustain the borders of its nations, and know and understand its neighbors. 











Comparative analysis


            Given this framework of a 21st century Islamic state, how does it compare to other modern nation states?  A cursory comparison to the United States of America provides some perspective into where the 21st century Islamic state would fit into the current political reality.  The following graph briefly touches on the loose structure of both nations.  The range of permissible governance structure, however, is large and adaptable for an Islamic state and it is difficult to put forward an honest comparison until the government is fleshed out with further examination.


The Islamic State

The United States

Form of Government


·        No evidence for term limits

·        Head of state accountable to the people

·        Campaigning and self -advocating for leadership is not permissible


·        Strict term limits

·        Head of state accountable more through general elections then impeachment

·        Campaigning and self-advocacy for leadership encouraged

Checks and Balances On Executive

Yes, although weak


·        Head of state mandated to consult advisory/legislative branch

·        Advisory/legislative branch cannot override caliph

·        Laws and rules subject to evaluation by judiciary branch

·        Caliph maintains power to introduce legislature



·        Legislative branch introduces new laws and can override vetos

·        Constitutionality of laws evaluated by judicial branch

·        Executive has no power to introduce legislature


Islamic state can be either one central government or a loose federation of states which recognize one common caliph

50 states have their own governments and laws but are all subject to the superior right of the federal government

Women in Government

Women can serve in every capacity of government except as caliph

Women can serve in every capacity of government

Church and State

·        Islamic law recognizes absolute freedom of religion, including allowing religious minorities to live by their own religious laws.

·        Denounces any compulsion in religion

·        Allows access to courts of Islamic law for those who submit to its jurisdiction.

·        Allows for courts of other religious law within minority religious communities.

·        Recognizes explicit protection of religion

·        U.S. law recognizes freedom of religion but does not allow religious groups to forgo state and federal law for their own religious laws

·        Denounces compulsion in religion

·        No religious law or courts are available

·        Recognizes explicit protection of religion

International Policy

·        Must act within the context of international law unless international law undermines the security of the nation.

·        Mandate to work to cure social injustice within the scope and reach of the state while maintaining the boundaries of international law.

·        Strong inclinations to forge treaties, enhance security, and participate in larger bodies such as the United Nations, at the benefit of the state.

·        Warfare authorized in self-defense, against oppression, and in defense of allies.

·        Discretionary obedience to international law.

·        Discretionary intercession into the international affairs of other nations.

·        Discretionary choice whether or not to interact with larger bodies such as the United Nations.

·        Reserves the right to unilateral offensive military action.




C o n c l u s I o n


            Muslims, following in the example of Muhammad, are encouraged by religion to establish a nation state based upon Islamic laws and principles.  This nation states ultimate goal is to serve as a vehicle to paradise for Muslims.  As such, its mandate does not allow the state to undertake immoral means to achieve successful worldly ends.

            The caliph is chosen through the democratic process.  The caliph is (1) limited in his discretion by the Quran and the traditions of Muhammad, (2) subject to removal by his people, (3) subject to the evaluation of his laws and rulings, (4) compelled to take consultation, and (5) characterized as a servant of the people. 

            Islamic principles prohibit the compulsion of religion upon either Muslims or non-Muslims.  Non-Muslims are a protected minority in the Islamic state and share nearly identical rights and obligations to Muslim citizens.  Non-Muslims are allowed to legally organize under their own religious and political laws.  The shariyah is present in the Islamic state and is established in full consideration of its higher objectives.

            The Islamic state carries on a policy of internal and external jihad.  This jihad is not characterized by offensive warfare but by social justice, curing of social ills, humanitarian aid, and self defense of itself and its allies.  The Islamic state is encouraged by the traditions of Muhammad to seek peace, accept customary international laws, and know and understand its global neighbors.

            The Islamic state can be organized under these general principles by whichever vehicles of law are most effective and adaptable to its circumstance.    



[2] “No military commander attended Mr. Gul’s inaugural ceremony, a highly unusual departure from protocol, considering that he is now the commander in chief.” (








[10] Hamas and many other Islamic militant groups, however, issued a statement denouncing the 9/11 attacks against the United States as a violation of “human and Islamic norms.” (






[16] According to one critic, “Dhimmitude is the status that Islamic law, the Sharia, mandates for non-Muslims, primarily Jews and Christians. Dhimmis, "protected people," are free to practice their religion in a Sharia regime, but are made subject to a number of humiliating regulations designed to enforce the Qur'an's command that they "feel themselves subdued" (Sura 9:29). This denial of equality of rights and dignity remains part of the Sharia, and, as such, is part of the law that global jihadists are laboring to impose everywhere, ultimately on the entire human race.” (  The subject of dhimmi’s will be explored in depth in Part 7 of this paper.


[18] Muhammad Hamidullah, The Emergence of Islam 3 (Afzal Iqbal ed., Islamic Research Institute 1999)

[19] The “seal of Prophets” is a title given to Muhammad signifying him as the last Prophet and the last man to receive Divine Revelation.

[20] “Our Messenger Muhammad (Allah bless him and give him peace) is the best and final messenger, and the Sacred Law he came with will remain until the end of time.” (Faraz Fareed Rabbani, The Absolute Essentials of Islam 6 (White Thread Press 2005)

[21] Hamidullah, supra note 18, at 7-8.

[22] Id., at 8-9

[23] Martin Ling, Muhammad: His Life Based on the Earliest Sources (7th Ed. Suhail Academy 1997)(1983)

[24] Hamidullah, supra note 18, at 11.

[25] Id., at 11-12

[26] Anwar Al-Awlaki, Abu Bakr Al Siddiq: His life and times (Al-Basheer Company for Publications and Translations).

[27] Id., at 17-18

[28] Id., at 31-32

[29] Id.

[30] “Narrated Ibn Mas’ud, [Muhammad] said, ‘Ruined are those who insist on hardship in matters of the Faith.’  He repeated this three times.” (Imam Nawawi, Riyad-us-Saliheen 150 (Muhammad Amin & Abu Usamah Al Arabi bin Razduq trans., Darussalam 1998)) 

[31] “Whoso obeys the Messenger [Muhammad] obeys Allah indeed” (Quran 4:80)

[32] The word “sunnah” refers to the “way of doing” or the physical action of Muhammad.  (Hamidullah, supra note 18, at 35)

[33] The word “hadith” refers to speech or word. (Id.)

[34] The word “sirah” refers to a biography in Arabic.

[35] Id., at 43-49


[37] Hamidullah, supra note 18, at 35-36

[38] Id.

[39] Id.

[40] “The Messenger believes in that which has been revealed to him from his Lord, and so do the believers: all of them believe in Allah, and His angels, and in His books, and in His Messengers, saying, “We make no distinction between any of His Messengers,” and they say, “We hear and we obey.”” (Quran 2:285)

[41] This is not an exhaustive list.  Nearly thirty prophets are listed in the Quran and traditions of Muhammad.

[42] Anwar Al-Awlaki, Lives of the Prophets (Al-Basheer Company for Publications and Translations)

[43] Id.

[44] Id.

[45] Hamidullah, supra note 18, at 61.

[46] Id., at 64

[47] Id.

[48] “It is prohibited to derive rulings from either the Qur’an or the hadith [traditions of Muhammad] unless one has fulfilled the prerequisites of an independent jurist or has studied what the rightly-guided scholars have said about a particular verse or hadith.” (Hamza Yusaf & Zaid Shakir, Agenda to Change Our Condition 22 (Zaytuna Institute 2007)

[49] “He [Ibn Jabal] is a well-known Companion [of Muhammad] who, had he lived longer, might have been the greatest jurist of Islam.” (Hamidullah, supra note 18, at 61).

[50] “As in any other Islamic discipline, be it jurisprudence, Qur’anic recital, or hadith, a disciple must have a master or sheikh, from whom to take the knowledge, one who has himself taken it from a master, and so on, in an unbroken series of masters back to the Prophet (Allah bless him and give him peace) who is the source of all Islamic knowledge.” (Nuh Ha Min Keller, Al-Maqasid: Nawawi’s Manual of Islam 161 (Amana Publications 2002)(1994))

[51] Muhammad Hamidullah, The Muslim Conduct of State 23 (Sh. Muhmmad Ashraf Publishers, Booksellers, and Exporters 1996)(1941)

[52] Id.

[53] Id., at 24

[54] Id.

[55] Id.

[56]Nawawi, supra note 30, at 166.

[57] Al-Awlaki, supra note 26

[58] Id.

[59] “Ibn Umar said, ‘We were choosing between people in the time of [Muhammad], may Allah bless him and grant him peace, so we chose Abu Bakr, then Umar, then Uthman, may Allah be pleased with them all.’  At-Tabarani added, in al-Kabir, ‘And [Muhammad] came to know of that but did not deny it.” (Jalal ad-Din as-Suyuti, The History of the Khalifahs Who Took the Right Way 30-31 (Ta-Ha Publishers 1995))

[60] Anwar Al-Awlaki, Ummar Ibn Alkhataab: His Life and Times (Al-Basheer Company for Publications and Translations).

[61] Al-Awlaki, supra note 26

[62] Id.

[63] For example, Muhammad, when facing the persecution of the Meccans, would petition for protection from other tribes around Mecca.  Under their protection, he was able to preach in peace without retaliation from hostile Meccans.  This is one example of Muhammad utilizing the political realities (the Arabian tribal system) for his benefit.  (Ling, supra note 23, at 98-100).

[64] Id., at 108-112

[65] Id., at 112-123

[66] Al-Awlaki, supra note26

[67] Al-Awlaki, supra 42

[68] Id.

[69] “And Solomon was heir to David.” (Quran 27:16)

[70] Al-Awlaki, supra 42

[71] Ahmed ibn Abi Diyaf, Consult Them in the Matter: A Nineteenth Century Islamic Argument for Constitutional Government (L. Carl Brown trans., University of Arkansas Press 2005).

[72]Abdullah ibn ‘Umar said that he heard the Messenger of Allah say: whoever removes a hand from (the pledge of) obedience he will meet Allah on the day of qiyamah [judgement] with no evidence (of being a believer): and whoever dies without baya on his neck has died a death of jahiliyyah [ignorance].” (Nawawi, supra note 30, at 579-80)

[73] Al-Awlaki, supra 26

[74] “Narrated Abu Sa’id Al-Khudri and Abu Harairah: [Muhammad] said, ‘When three persons set out on a journey, they should appoint one of them as their leader.’” (Id., at 778).

[75] Al-Awlaki, supra note 26

[76] “O you who believe!  Obey Allah and obey the Messenger (Muhammad) and those of you (Muslims) who are in authority.” (Quran 4:59)

[77] "O humankind We [God] have created you male and female, and made you into communities and tribes, so that you may know one another. Surely the noblest amongst you in the sight of God is the most godfearing of you. God is All-knowing and All-Aware" (Quran 49:13).

[78] Al-Awlaki, supra note 60

[79] “And certainly, We shall test you with something of fear, hunger, loss of wealth, lives and fruits, but give glad tidings to As-Sabirun (the patient).” (Quran 2:155)

[80] Ling, supra note 23, at 112

[81] Al-Awlaki, supra note 60

[82] Id.

[83] Rabbani, supra note 20, 6

[84] A proposal was made initially to divide the caliphate among native Meccans who had emigrated to Medina and the native population of Medina.  This proposal was quickly rejected.  (Al-Awlaki, supra note 26).

[85] A similar situation existed in the Ottoman Empire between the Ottoman caliphate, the sultan of Tunisia, and the sultan of Egypt.  (Diyaf, supra note 71, at 4-7)

[86] Al-Awlaki, supra note 42

[87] Diyaf, supra note 71, at 66.

[88] Islam only accepts acts of religion which are done voluntarily.  This will be further developed in Section 7.

[89] Umar described his role as caliph as being the servant of the people.  (Al Awlaki, supra note 60)

[90] Muhammad, Abu Bakr, and Umar all took baya before assuming the role of leadership.

[91] Ling, supra note 23, at 100

[92] Id., at 112.

[93] Aisha Bewley, Mu’awiya: Restorer of the Muslim Faith 45 (Dar Al Taqwa 2002)

[94] Al-Awlaki, supra note 26

[95] Al-Awlaki, supra note 60

[96] Id.

[97] Id.

[98] “Narrated Abdur-Rahman bin Samurah: [Muhammad] said to me, ‘Do not ask for position of authority.  If you are granted this position without asking for it, you will be helped (by Allah) in discharging its responsibilities; but if you are given it as a result of your request, you will be left alone as its captive.’” (Nawawi, supra note 30, at 586).

[99] Al Awlaki, supra note 60.

[100] This hypothetical only looks at this one quality of leadership and does not seek to allege Colin Powell or any past or sitting U.S. President could become an Islamic caliphate without first being Muslim.

[101] Al-Awlaki, supra note 26.

[102] Al-Awlaki, supra note 60.

[103] Nawawi, supra note 30, at 193.

[104] Diyaf, supra note 71, at 51

[105] “Narrated Nu’man bin Bashir: Allah’s Messenger said, “The likeness of the man who observes the limites prescribed by Allah and that of the man who transgresses them is like the people who get on board a ship after casting lots.  Some of them are in its lower deck and some of them in its upper (deck).  Those who are in its lower (deck), when they require water, go to the occupants of the upper deck, and say to them: ‘If we make a hole in the bottom of the ship, we shall no harm you.’  If they (the occupants of the upper deck) leave them to carry out their design they all will be drowned.  But if they do not let them go ahead (with their plan), all of them will remain safe.” (Nawawi, supra note 30, at 195).

[106] “[Muhammad] has state, ‘Obey them even though they take your possessions and strike you on your back.’” (Diyaf, supra note 71 at 46.)

[107] “Ali ibn Abi Talib, may God be pleased with him, said: ‘A just ruler is better than a downpour of rain.   Destructive lion is better than an oppressive ruler.  But an oppressive ruler is better than continuing civil strife.’” (Id. at 47)

[108] “[Muhammad] said, “It is obligatory upon a Muslim that he should listen (to the ruler) and obey whether he likes it or not, except when he is ordered to do a sinful thing; in such case there is no obligation to listen or to obey.” (Nawawi, supra note 30, at 579)

[109] Al-Awlaki, supra note 26

[110] Al-Awlaki, supra note 60

[111] For example, following the Battle of Badr, Muhammad consulted with his companions about the proper course of action with the prisoners of war.  Until this point, no revelation existed governing the treatment of prisoners of war.  (Ling, supra note 23, at 155-159.

[112] Al-Awlaki, supra note 26

[113] One visiting dignitary was shocked to find Umar, during his reign as caliph, sitting under a tree in Medina with no guards.  (Al-Awlaki, supra note 60).

[114] One could argue that going away from Muhammad’s tradition of taking consultation would violate Islamic principles and dissolve one’s claim to the caliph.

[115] No rule states that the caliph cannot be mandated to delegate his powers and one could reason that, because it is not prohibited, then it is allowed under Islamic law.  On the other hand, mandating a caliph delegate power would impugn upon his autonomy in delegating his religious task as caliph.  Arguably, one would be simply dividing the role of the caliph into multiple individuals which is likely prohibited.

[116] Al-Awlaki, supra note 60.


[118] Several of the governors were those who had been specifically mentioned as being given the glad tidings of paradise or their virtues were mentioned in the traditions of Muhammad.  (Al-Awlaki, supra note 60).

[119] On several occasions, Umar would summon governors to leave their homes and travel to Medina to face their accusers in trial before the caliph.  On other occasions, Umar would assign investigators to survey regions and learn the public opinion and grievances about a particular governor  (Id.)

[120] Quran 20:29-32

[121] Although Moses asked to “share his task” with Aaron, Moses still took the lead with his people as a caliph and prophet.  This verse, therefore, cannot be used as evidence of a dual caliph since Aaron was not equal to Moses in the role of leadership.

[122] Hamidullah, supra note 18, at 26.

[123] Al-Awlaki, supra note 26.

[124] Hamidullah, supra note 18, at 26

[125] Id.

[126] Id.

[127] For example, Umar, on several occasions, would stop and listen to the advice of passing women on his rule.  (Al-Awlaki, supra note 60)

[128] Umar, for example, would allow Christian and Jewish communities within the Islamic state to practice their own religion and their own laws.  They would not be subject to Islamic law.  (Al-Awlaki, supra note 60)

[129] Quran 2:256

[130] “Narrated Umar bin Al-Khattab: [Muhammad] said, ‘The reward of deeds depends upon the intentions, and a person will get the reward according to what he has intended.  So whoever emigrated for a worldly benefit or for a woman to marry, his emigration would be for what he emigrated for.” (Nawawi, supra note 30, at 11).

[131] “Narrated Abu Masa Al-Ash’ari: [Muhammad] was asked, ‘One man fights to show bravery, one fights for self-esteem, and one fights to show off; which of them fights in Allah’s path?’  [Muhammad] replied, ‘He who fights so that Allah’s Word may be exalted, fights in Allah’s path.’” (Id., at 18)

[132] There is also a possibility of confusion, as a Muslim may fail to realize subconsciously that his religious actions are only to satisfy the laws of the state.  It would be highly undesirable to enact state policies which confused and frustrated the practice of Islam.

[133] “If it had been Allah’s plan, they would not have taken false gods: but We made thee not one to watch over their doings, nor art thou set over them to dispose of their affairs.” (Quran 6:107).  The verse implies God’s ability to put Islam into the heart of those He chooses.  Furthermore, Muhammad, and his Ummah, have an obligation to serve Allah but not watch over the faith of every wayward individual.  That role is for God, alone.

[134] “Allah does not forgive that any should be associated with Him, but forgives what is other than that to whomever He wills.” (Quran 4:48)

[135] Al-Awlaki, supra note 60.

[136] Ling, supra note 23, at 149.

[137] Quran 9:5

[138] Those who attack the Muslims aggressively are liable for their action and their punishment is severe.  However, acceptance of Islam offers the aggressors immediate amnesty from any past action.


[140] Yusuf al-Qaradawi, Non Muslims in the Islamic Society 2 (Khalil Muhammad Hamad & Sayed Mahboob Ali Shah trans., American Trust Publications 1985)

[141] Id.

[142] Id.

[143] Id., at 18.

[144] Id., at 19-20.

[145] Id., at 19

[146] For example, a Rabbi whose Jewish tribe made a treaty of peace with Muhammad fought and died alongside the Muslim army in one of the early battles. 

[147] Id.

[148] Id., at 19-20

[149] During the reign of Umar, the Muslims faced a massive Roman army which they could not repel.  They retreated from their positions but, before retreated, returned all the protectorate tax they had taken from the people of that region.  (Id. at 39)

[150] “The Prophet also said, ‘I will be the opponent of one who harms a non-Muslim and I will speak against those whom I oppose on the Day of Judgment.’  He said in another tradition, ‘He who harms a non-Muslim harms me, and he who harms me, harms Allah.’” (Id., at 4.)

[151] “The second caliph, Umar ibn al-Khattab, used to ask those who came to him from various provinces about the well-being of the non-Muslim citizenry, lest they were facing oppression from anybody…” (Id.)

[152] “The treaty of protection made by Khalid ibn Al-Walid with the Christians of Al-Hira in Iraq states: “Any aged non-Muslim who is unable to earn his livelihood, or is struck by disaster, or who becomes destitute and is helped by the charity of his fellow men will be exempted from the [protectorate tax] and will be supplied with sustenance by the bait al-mal (the government treasury).  This decision was made during the reign of Abu Bakr as Siddique…” (Id., at 8).

[153] Id., at 12-14.

[154] Al Awlaki, supra note 60

[155] “And in the hadith of the adulteress who purified herself by voluntarily being stoned to death, there is the Prophet’s remark (Allah bless him and give him peace), ‘She has made a repentance so sincere that if even a [unjust] tax taker repented with the like of it, he would be forgiven.” (Nawawi, supra note 50, at 674).

[156] Al-Awlaki, supra note 60.


[158] In the traditions of Muhammad, when the punishment of adultery is exacted, it is exacted upon those who voluntarily and repeatedly confess. 

[159] “Abu Huraira reported that a person from amongst the Muslims came to Allah's Messenger (may peace be upon him) while he was in the mosque. He called him saying: Allah's Messenger. I have committed adultery. He (the Holy Prophet) turned away from him, He (again) came round facing him and said to him: Allah's Messenger, I have committed adultery. He (the Holy Prophet) turned away until he did that four times, and as he testified four times against his own self, Allah's Messenger (may peace be upon him) called him and said: Are you mad? He said: No. He (again) said: Are you married? He said: Yes. Thereupon Allah's Messenger (may peace be upon him) said: Take him and stone him.” (Sahih Muslim 17:4196) 

[160] “If they do come to you, either judge between them, or decline to interfere.  If you decline, they cannot hurt you in the least.  If you judge, judge in equity before them, for God loves those who judge in equity.” (Quran 5:45).  The verse of the Quran limits the jurisdiction of the Islamic court upon non-Muslims.  Non-Muslims can access the Islamic court upon request but the Islamic court is not empowered to impose jurisdiction upon non-Muslims.  Furthermore, the Islamic courts can still refuse to interfere in the case and extend jurisdiction upon waiver of the non-Muslim.  When Muhammad and other caliphs have extended jurisdiction, they make their rulings based in equity and the laws of the non-Muslims.

[161] Islam literally means “to submit” and a Muslim is seen as submitting himself, or allowing jurisdiction over himself, of all Islamic courts and the shariyah.  Without these “submittal,” the shariyah cannot legislate over an individual.

[162] “Narrated Abu Hurairah: [Muhammad] said, ‘Allah will cover up on the Day of Judgment the defects (faults) of the one who covers up the faults of the others in this world.” (Nawawi, supra note 30, at 238).

[163] “A’isha narrated that the Prophet (pbuh) said: ‘Ward off punishment as much as you can. If you find any way out for a Muslim then set him free. If the Imam makes a mistake in granting forgiveness, it is better for him than that he should commit a mistake in imposing punishment.’” (

[164] Ironically, by not separating Church and State in an Islamic state, the effect of a separation of Church and State naturally occurs by divine order.

[165] “‘Struggle’ or ‘striving;’ Although this word is often translated as ‘holy war,’ it has a broader meaning than warfare on the battlefield.  Any act of striving to please Allah may be described as jihad.” (Muhammad Ali Al-Hashimi, The Ideal Muslim 377 (International Islamic Publishing House 2005).

[166] “As for those who strive hard [jihad] in Us (Our Cause), We will surely, guide them to Our path.  And verily, Allah is with the good doers.” (Quran 29:69).

[167] “The path for us … is twofold: The first is inner transformation through spiritual struggle with the soul.  The second is outer transformation through struggle with the vices and degrading aspects of society – this means working toward the realization of social justice and a culture that embodies moral comportment, protects children, and enhances family and community life.” (Yusaf, supra note 48, at xi)

[168] “And did not Allah check one set of people by means of another, the earth would indeed be full of mischief, but Allah is full of bounty to all the worlds.” (Quran 2:251).  Prior to the time of Moses, God would intercede through divine events, such as Noah’s flood, to check oppressive people and establish social justice.  However, after Moses, the duty has fallen upon those people who follow God’s religion and way.  (Al-Awlaki, supra at 42).

[169] “…then fight and slay the pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war)…” (Quran 9:5)

[170] “(But the treaties are) not dissolved with those pagans with whom ye have entered into alliance and who have not subsequently failed you in aught nor aided anyone against you.  So fulfill your engagements with them to the end of their term: for Allah loveth the righteous … but if they repent, and establish regular prayers and practice regular charity, then open the way for them, for Allah is oft-forgiving, Most Merciful.  If one amongst the pagans ask thee for asylum, grant it to him so that he may hear the word of Allah; and then escort him to where he can be secure. That is because they are men without knowledge.” (Quran 9:4-6)  The verse which authorizes violence is flanked by a series of conditions which provide rights for enemy combatants and also focus the authorization of force on self defense efforts.

[171] “Let there be no hostility except to those who practice oppression.” (Quran 2:193).

[172] The conquest of Mecca took place in this manner. The allies of the tribes in Mecca attacked the allies of Muhammad, thus abrogated the peace treaty between Muhammad and Mecca.  (Ling, supra note 23, at 291-6)

[173] Id., at 118-20

[174] Id., at 81-84, 113-115

[175] When the Muslim army took Mecca, they did so with no bloodshed and offered full amnesty to all inhabitants of the city, despite years of past persecution.  Id., at 297-303.

[176] Id., at 319.

[177] Id., at 252

[178] Al-Awlaki, supra note 26.