Siyasah Shar'iyah or the Policies of Islamic Government

Abstract

Introduction
Siyasah shar'iyah is a broad doctrine of Islamic law which authorizes
the ruler to determine the manner in which the Shari'ah should be administered.
The ruler may accordingly take discretionary measures, enact rules and initiate
policies as he deems are in the interest of good government, provided
that no substantive principle of the Shari'ah is violated thereby. The discretionary
powers of the ruler under siyasah shar'iyah are particularly extensive
in the field of criminal law. The head of state and those who are in
charge of public affairs, the 'ulu al amr, may thus decide on rules and procedures
as they deem appropriate in order to discover truth and to determine
guilt. With regard to the substantive law of crimes, too, the 'ulu al amr have
powers to determine what behavior constitutes an offense and what punishment
is to be applied in each case.
Many observers have expressed concern over the wide discretionary
powers that rulers and judges enjoy under siyasah shar'iyah. It is suggested
that siyasah, as such, defies effective control, and it is open to abuse, which
would ultimately undermine the ideals of justice under the rule of law. One
observer has thus considered siyasah as "direct negation of what may be regarded
as the second essential implication of the idea of the rule of law in a
secular system- namely, the principle that the sovereign must not possess
any arbitrary power over the subject."
According to another critic, siyasah has enabled the Islamic ruler to enact
legislation, especially in the field of criminal law, under the guise of "administrative
regulations." But in effect, the ruler enacted independent legislation
in such areas as taxation, police matters, and the administration of justice,
in general, which often interferred with, or severely circumscribed, the
Shari'ah.
Penalties imposed at the discretion of the ruler or the judge are known
as ra'z'irat. As a branch of siyasah, ta'zir (lit. deterence) must differ according
to the nature of the offense and the particular circumstances of the offender.
The judge may thus determine the punishment of ta'zir in each case
according to his own observations and personal ijtihad. It has been suggested
that the individual in such a system is exposed to official abuse against which
he has no effective means of protecting himself ...