Agency, accountability of public officials and the conditions of valid administrative law making
Al-Qarafi’s taxonomy of the rules of Islamic law not only expressly made normative room for binding legislation based on the public good rather than interpretation of divine law, it also implied that when this power was appropriately exercised, it had the effect of pre-empting contrary rules of the fiqh.
His analysis, however, did not attempt to draw out explicitly the conditions that would render the exercise of this public-interest-based rulemaking power legitimate. To reconstruct what these conditions are, we necessarily need to return to the principles of agency that underlie the Sunni constitution. In Section 2 of this chapter, we argued that Sunni jurists adopted the fiduciary principles found in the private law of agency to solve the basic problem of political ordering that Sunni political theology introduced: how to make governance among equals legitimate. By declaring that public officials were agents of the public, Sunni jurists established the principal of limited government, both in the procedural sense that a public official could not exercise powers that had not been legitimately delegated to him, and in the substantive sense that a public official lacked the power to act in contravention of the law insofar as the principles of agency law did not contemplate appointing an agent for the furtherance of illegal ends. Section 2 stopped, however, with the question of whether the Sunni constitution contemplated the possibility that public officials could make law, or whether they were limited to enforcing the basic law — the fiqh — of the Muslim community. Section 3 made clear, however, that later Muslim jurists, al-Qarafi being a foremost example, did permit public officials to make law, based solely on the public good, even if it had the effect of restricting recognized rights that existed in basic law. In this section, we show how the fiduciary values of agency allowed post-Qarafian Muslim jurists to develop conditions that regulated the use of this power, but that, consistent with the model of agency that underlie the Sunni constitution, they also explicitly recognized that public officials, when they made rules based on the public good in a manner that satisfied certain conditions, had the authority to prohibit conduct that the basic law deemed permissible, or oblige conduct that in the view of the basic law was a matter of indifference. Moreover, when public officials’ rule-making activities were valid, the obligation on the part of the public to obey such public-interest rules was not merely grounded in prudence, but represented a genuine moral obligation before God.The first condition for the validity of an administrative act was that it had to be consistent with the public good of the Muslim community, in accordance with the duty of the agent to act in accordance with the well-being of the principal.9 Accordingly, al-Qarafi stated that administrative acts of public officials are not binding unless they satisfy a public standard of rationality, meaning, they result either in an absolute increase in well-being (maslaha khalisa), a net increase in well-being (maslaha rajiha), an absolute decrease in harm (dar' mafsada khalisa), or a net decrease in harm (dar’ mafsada rajiha).10 The second condition, albeit one not entirely free of controversy in its details, was that the subject matter of the relevant decree lie within the affairs of the public (al-masdlih al-‘dmma), rather than the private affairs of individuals. Maliki and Shafi'i jurists in particular disagreed with respect to commands of the ruler directing the public to perform supererogatory acts of ritual devotion: the Malikis denied any effect to such commands because such acts, although religiously commendable, are not part of the affairs of the public, while the Shafi'is believed they become obligatory by virtue of the ruler’s command to perform them. Both groups of scholars agreed, however, that with respect to a governmental command to perform (or refrain from) an act that the revealed law deemed permissible (mubdh), the command must relate to the public good before it could become an obligation by virtue of a governmental command.11 The third condition was that the public official issuing the command had to have a good-faith, subjective belief that his command was lawful, i.e. compliance with the command would not lead to sin, even if what was commanded was not mandatory by virtue of revelation.12 The fourth condition was that the recipient of the command, from his or her subjective perspective, must be able to comply with the command without committing a sin.13 The fifth condition was that the public official who issued the rule must be acting within the scope of his jurisdiction, whether by geography, subject matter or both.14 Accordingly, a judge appointed to hear family law cases in Cairo, for example, could not divorce a woman in Damascus, even if his verdict was substantively correct, nor could he invalidate a contract of sale in Cairo, even if, as a matter of substantive law, the contract is universally recognized as unenforceable. Finally, al-Qarafi added that judgments and rules made by a public official are not valid if they are tainted by a conflict of interest.15
If these conditions are satisfied, and the decision maker is untainted by a conflict of interest, the administrative act is valid and binding, both from a moral perspective and a prudential one.
One historical example ofjuristic treatment of law making by government officials is found in a legal opinion issued by a 15th-century Shafi'i jurist in the Mamluk era, issued in response to a question concerning the legality of a recently promulgated price-control regulation.16 The mufti concluded that the petitioner, who was apparently a follower of the Shafi'i school of law, was morally bound to follow a controversial price-control regulation, even though the petitioner believed such a regulation to be unlawful. The mufti reasoned that so long as the ruler had a good-faith belief that the rule was permissible — and that would be satisfied in this case given the fact that the Maliki school of law permitted such regulations — and that the petitioner could comply with the rule without committing a sin, the rule bound him, both morally and prudentially.17 The difference between moral and prudential duties of obedience is not inconsequential from the perspective of the rule of law: if obedience in this case were only a prudential obligation, the merchant would be free to ignore it if he could do so without risking detection, for example. The fact that jurists recognized in this circumstance clearly a moral obligation on the part of Muslims to obey the rule, regardless of the ruler’s ability to enforce the command, and not one based simply on the ruler’s arbitrary power of the ruler, establishes clear evidence that they did not limit moral obligations to rules of conduct that were unequivocally established by revelation; rather, duly formulated human legislation could also generate moral obligations which, although not found in the basic law established by revelation, was nonetheless morally binding upon Muslims once the law was made. Accordingly, if the ruler prohibited smoking in public places, it became sinful to do so.18While later jurists affirmed the moral nature of the obligations generated by valid governmental decrees, they did not provide an express theory explaining why the command of a government official could generate a moral duty above and beyond those imposed by revelation.
Careful analysis of the pre-requisites that they required a governmental command to meet in order for it to generate both moral and prudential duties of obedience, however, suggests that the principle of legitimacy which was at stake was that of agency: whenever public officials acted in conformity within the ideals of what constitutes the Muslim community’s public agent, the Muslim community becomes morally bound to adhere to their decisions, just as a principal becomes morally bound by the duly authorized actions of his agent taken in conformity with the principal’s instructions. Just as al-Kasani declared that the caliph’s actions in appointing and dismissing judges is in reality the actions of the Muslim public, so too, then, the valid commands of public officials taken are nothing other than the actions of the Muslim public. The individuals constituting the Muslim public become bound not because the public official is accurately interpreting divine will, but rather because he has properly exercised the power of the Muslim public to pursue its well-being within the constraints imposed by the Shari 'ah. In obeying the commands of public officials in that regard, individuals are only obeying themselves with respect to the conclusive, if provisional, determination of where the community’s temporal well-being lies.5