‘Bad Actors, Bad Plot’—Why the ISIS Model of an Islamic State was a Failure that ought not be Replicated

Joseph J. Kaminski, Assistant Professor
Faculty of Business and Administration
Dept. of International Relations
International University of Sarajevo

The question of what qualifies a model of governance as ‘Islamic’ is complicated and multifaceted.  Obviously, there is no clear-cut definition; there does not even exist a clear-cut definition of what constitutes a genuinely ‘democratic’ model of governance.  Many state and non-state entities in recent times have offered their own iterations of Islamic governance. 

For Saudi Arabia, Islamic governance means having an unelected monarch that oversees decisions derived via consultation between the senior members of the royal family and the religious establishment.  Many question how much autonomy the ʿulamāʾ actually have in this process as rarely does one see fatāwā that go against the will of the king. Iran’s model posits a Supreme Leader that oversees the state and is based on Ayatollah Khomeini’s model of velāyat-e faqīh or guardianship of the jurist.  Unlike Saudi Arabia, the Iranian model does delegate more authority to an elected set of parliamentarians and president.  However, when it comes to many of the most pressing and controversial decisions, especially regarding foreign affairs, the Supreme leader’s decisions reign ‘supreme.’  

More recently, the transnational terror state, ISIS sought to offer their own iteration of Islamic government led by its self-declared khalīfah, Abu-Bakr al-Baghdadi. While many casual observers are erroneously under the impression that ISIS’s ‘governance model’ was just anarchic killing and lawlessness, in actuality ISIS went to great lengths to be seen as a state based on law and legal legitimacy.  According to March and Revkin (2015), ISIS sought “to establish scrupulous legality for itself, from its very “constitutional” foundations to its narrowest public policies” (online). ISIS posits the Qur’an and Sharī’ah as the supreme law of the land.  However, unlike the other cases mentioned above, ISIS explicitly and forcefully rejects all invocations of what can be understood as ‘positive law’ or statutory man-made laws created by governments that are designed to be responsive to the needs of the state.  According to Mara Revkin in a 2016 Brookings Report analysis paper;
​
The Islamic State regards shari‘a as the only legitimate basis for governance. Official publications state that subjects of the Islamic State have an obligation to adjudicate their disputes “only according to the law of God by resorting to Islamic courts in the Islamic State.” When the Islamic State captured Raqqa and Mosul, it issued documents calling for “the release of the people from the rotten shackles of positive law,” among other prescriptions. (p. 12)

​The solution for ISIS was their own version of siyāsa shar‘iyya or Islamically legitimate governance that sought religiously binding rulings that were even applied to issues that were clearly were outside the direct purview of the Qur’an and Sharī’ah such as traffic laws and building codes.  This should not be misunderstood as maqāsid considerations at an abstract level regarding what general traffic laws and general building codes were in societies best interests; rather ISIS had the specific details of the decision regarding each specific case decided by “religiously legitimate authorities appointed by the state—including market inspectors, military commanders, police officers, and the caliph himself—to issue law-like decisions” (Revkin, 2016, p. 12). 

Revkin makes it clear that ISIS’s version of siyāsa shar‘iyya should not be seen as equivalent to the Western notion of judicial independence.  ISIS’s iteration of siyāsa shar‘iyya Islamized just about every possible law and decree which “has enabled the Islamic State to issue rules and regulations governing virtually every aspect of life in the caliphate” (Revkin, 2016, p. 12).  As a result, Revkin and March (2015) argue that ISIS “established both sharia courts for unexceptional Islamic rulings over civil and some criminal matters and other kinds of courts that deal with military discipline or complaints from the population, including grievances against ISIS fighters (many of whom have actually been punished after such complaints)” (online).  The expansion of Sharī’ah courts into all aspects of life obviously has a detrimental effect on the possibility of legal flexibility.  ‘Islamizing’ as many aspects of law and civil code as possible, or at least trying to justify everything via some appeal to a Sharī’ah mandate clearly leads to abuse as can be seen in the case of ISIS.  One can think of it this way; a speed limit set at 90 km/h instead of 85 km/h without some pretty serious jurisprudential gymnastics cannot be justified via any specific Islamic doctrine.  
​

The problem with ISIS’s model of governance (without even considering the very unfair, harsh, and questionable ways it operated) lies in the fact that everything was centralized in the hands of a small set of elites who sought to make every decision as somehow within the purview of Islamic law—either directly or indirectly.  Judicial independence, the recognition of the role of public consent, and representative institutions are essential elements in holding a state’s leaders accountable.  In my previous work, I offered a working definition of Islamic governance that drew from the Tunisian scholar Rachid-al Ghannouchi’s model that held;
​

1. Supreme legislative authority is for the Shari’ah that is the revealed law of Islam, which transcends all laws. Within this context, it is the responsibility of scholars to deduce detailed laws and regulations to be used as guidelines by judges. The head of the Islamic state is the leader of the executive body entrusted with the responsibility of implementing such laws and regulations.

 

1. Political power belongs to the community (ummah), which should adopt a form of shura, which is a system of mandatory consultation. (2007: p. 273)

 
Ghannouchi’s definition of Islamic governance departs in a significant way from the iteration offered by ISIS that excluded the community from any influence upon the state.  While Ghannouchi’s first proposition is essential to any Islamic governed state, his second proposition is what needs further articulation and discussion.  My reading of Ghannouchi suggested that:
Ghannouchi’s description of Sharī‘ah as being the source of legislative authority in an Islamic governed state should not be understood as a cryptic call for a small cabal of high-ranking clerics sitting together in some medieval candlelight madrasah with Qur’ans in one hand and quill pens furiously scribbling immutable decrees on pieces of parchment in the other. What Ghannouchi is aiming at is a general jurisprudential praxis that keeps in the forefront the importance of Sharī‘ah as being the authentic primary wellspring from which all subsequent laws should be vetted and evaluated in relation to. Those laws and policies that are clearly outside the fold of Islam are to be categorically rejected, while those laws and policies that are less clear in this regard are to be further deliberated upon until a consensus (ijmāʿ) emerges with the spirit of the Sharī‘ah and a concern for the public good (al maṣlaḥa) in mind.

Policy makers, academics, religious scholars, and politicians ought to collaborate when articulating more specific programs of action, while the principle of where legislative authority truly derives should remain omnipresent in all jurisprudential, policy making, and governing activities. The second proposition offered by Ghannouchi—namely that political power belongs to the community—should be understood as a call for a civically engaged and educated civil society that serves as a check and balance on the actions of legislators. This is not a call for some type of unrealistic Athenian direct democracy; rather, it is a call for a society whose members do not merely sit on the sidelines as passive subjects completely detached from their government. The system of mandatory consultation envisioned by Ghannouchi must include a diverse set of voices and opinions even if these opinions are in contradistinction to the opinions held by the state and those in power. (Kaminski, 2017, pps. 73-4)
​

​Civic engagement with the more general political process is what ultimately gives legitimacy to any ‘Islamic governed’ state.  I firmly believe the two propositions offered by Ghannouchi are equally important and inextricable from a functioning Islamic governed state.  Ghannouchi’s model hinges upon both (1) supreme legislative authority deriving from the Sharī‘ah, and; (2) shūrā or a system of mandatory consultation. “If the latter is present, but that former is not, one does not have an Islamic governed state at all; if the former is present, but the latter is not, one has tyranny” (Kaminski, 2017, p. 157).  Islamic governance means finding a balanced middle path.  It cannot be understood as simply meaning appeals only to Sharī‘ah at all times or only to shūrā at all times; rather it is a matter of engaging with both.  While one would be hard pressed to justify an Islamic governed state ignoring Sharī‘ah, one would be equally hard pressed to find a functioning Islamic governed state that lacks any semblance of representative institutions or shūrā.  ISIS tried to do this and as we can now see their brutal experiment was short lived and unsuccessful.  This is to suggest that the ISIS model, at its core, was fundamentally flawed.  Some have speculated that if ISIS was ‘less barbaric’ their model might have worked—it was merely a matter of ‘bad actors controlling the plot.’  I am arguing here that it was not merely bad actors that did ISIS in, rather it was also a bad plot.
  
Bibliography
Ghannouchi, Rachid. 2007. The participation of Islamists in a non-Islamic government. In J. Donohue, and J. Esposito (Eds.), Islam in transition: Muslim perspectives (pp. 271-78). New York: Oxford Press.
Kaminski, Joseph. 2017. The contemporary Islamic governed state: a reconceptualization. New York: Palgrave.
March, Andrew and Mara Revkin. 2015. Caliphate of Law. Foreign Affairs. April 15, 2015, https://www.foreignaffairs.com/articles/syria/2015-04-15/caliphate-law
Revkin, Mara. 2016. The legal foundations of the Islamic state. The Brookings Project on U.S. Relations with the Muslim World, 23. (July 2016).