There is a tremendous amount of literature on the nature of the state and the political system. Further, translations of some works of the earlier jurists, like al-Mawardi, are available. We feel, however, that there are certain fundamental questions that have not been answered convincingly as yet. The first issue is that of the nature of the state in Islamic law. What we mean here is that as compared to the personality of Khalifah and his personal responsibility and power, we are dealing today with a legal entity called the state, which has a personality and rights of its own. If it represents the entire community, then is each communal obligation (fard kifayah) transferred to the state and becomes a duty of the state. If the contract of bay`ah was a contract of agency (wakalah) by which each citizen transferred or delegated his authority to the Khalifah to manage the affairs of the community, then, what is the nature of the contract today when the state steps in. And, not only the state, what is the nature of the contract when the President, Prime Minister, or Monarch, if you like, step in with fictitious legal (official) personalities of their own and the accompanying immunities.
Another issue deals with the distinction between the Khalifah as the all powerful leader delegating authority to all the sultans in order to validate their rule and between the existence of multiple states and no Khalifah. What is the fundamental norm (grundnorm) in all these situations, a norm that validates all laws. Such a norm should stay in place even when a military commander takes over power and abrogates the constitution.
There are numerous other issues, and we are just quoting these as examples. The prolem of legal personality has been analysed under the discussion of corporations in the Islamic law of business organisation. The same arguments can be applied to the personality of the state.
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