Governance among equals, agency and the contract of the caliphate as constitutional government
The central problem posed by Sunni political theology was how to justify governance among equals. Ibn 'Abd al-Salam already pointed out one obvious solution to this problem: to the extent human beings are all equal insofar as they are all servants of God, and God will hold them accountable for their actions in the next life, obedience to the law can substitute for obedience to human beings.
And indeed, fidelity to the law was an important element of normative Sunni political theory, but as I will explain more fully below, the law was not self-executing. Even a minimalist conception of the law required the creation of institutions which could resolve disputes conclusively, effectively pursue the common good, and administer rights of the community. How was it possible to justify, for example, a moral duty to appear before a judge and submit to his judgment, even as it was acknowledged that there was nothing in the judge’s person that assured litigants that his rulings were always in accordance with divine law? The solution that Muslim jurists ultimately proposed to this dilemma, and which formed the basis of the mature theory of the caliphate, is that the duty arises not because of a hierarchical relationship between the judge and the litigant, such that the litigant is obliged to submit to the court’s jurisdiction over him because of the judge’s elevated place in the social and political hierarchy; rather, it is because the judge acts as a representative of the community, of which the litigant is a member, and just as a principal is bound by the actions of his agent in the context of private law, so too is the ‘public’ bound by the lawful decisions of its representatives. In other words, by obeying the judge, the individual, in Sunni political thought, is doing nothing more than obeying himself.4By analogizing public officials to agents and fiduciaries, Sunni jurists established a standard of legitimacy that included both substantive and procedural norms.
As a matter of procedure, all legitimate authority could only be created via a delegation of powers, directly or indirectly, from the public. Because all power is delegated, office holders can only perform those acts that fall within the scope of their delegation. An act may be substantively lawful, but if it was not within the jurisdictional competence of the office holder, the action would be invalid because the office holder lacked jurisdiction to undertake the action in question. This result is perfectly analogous to the rule that applies to an agent of a natural person who performs a substantively lawful act, e.g. agrees to purchase Blackacre, but because his principal had only given him authority to purchase another tract of land, e.g. Greenacre, the contract, though lawful, fails to bind the principal.While jurisdictional limitations on the authority of agents are external to the agency relationship insofar as such particular limitations are contingent on the specific terms of any appointment, the agency relationship also places internal limits on the kind of actions the public may authorize their representatives to perform on their behalf. This is because in the Islamic law of agency, a principal lacks the power to appoint an agent to perform an illegal act (masiyah). Accordingly, the Muslim public lacks the power to authorize public officials to commit acts in violation of the law. Accordingly, if a public official knowingly performs a substantively illegal act, the public official becomes liable in the same way that a private person would, even if, when he performed that act, he was obeying the ostensible command of a superior public official. Public officials only enjoyed immunity for their official acts when they could plausibly believe that their actions were substantively lawful.
Principles of agency law were therefore adopted from the domain of private law and applied to the actions of public officials to establish that government actions, to be lawful, had to issue from an actor who had been properly delegated the authority to act in that domain, and that the action in question was, in fact, substantively lawful. The contract of the caliphate, by establishing the principle that public officials are the agents of the governed, established a norm of constitutional government that limited the powers of public officials to those which met both the procedural limitations of the applicable grant ofjurisdiction, and the substantive norms of the law. Whether the Sunni jurists, in addition to affirming the idea of limited government, also accepted the notion of self-government, i.e., the power of the political community to make laws for itself, will be discussed in further detail below, but before we can answer that question, we must first consider the different kinds of rules recognized within Islamic law, and their respective relationship, if any, to the existence of political institutions.
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