Don’t Call It A Caliphate, Yet: ISIS May Run Afoul of Islamic Law

The news over the weekend that the Islamic State of Iraq and Al-Sham (ISIS) had declared as Caliph of the universal Muslim Ummah its leader Abu Bakr al-Baghdadi has shaken the Middle East (and the wider Muslim world).

In classic ISIS form, the jihadist insurgent army issued a communiqué, in multiple languages, including English, to explain their decision to make the announcement that Al-Baghdadi was now Caliph Ibrahim, and ISIS was now simply, “The Islamic State.”

According to the communiqué, Al-Baghdadi was invested with the position of Caliph through the oath of loyalty sworn to him by ISIS’s people of authority (ahl al-hall wa al-‘aqd). The communiqué notes:

…the Islamic State – represented by ahlul-hall-wal-‘aqd (its people of authority), consisting of its senior figures, leaders, and the shura council – resolved to announce the establishment of the Islamic khilafah, the appointment of a khalifah for the Muslims, and the pledge of allegiance to the shaykh (sheikh), the mujahid, the scholar who practices what he preaches, the worshipper, the leader, the warrior, the reviver, descendent from the family of the Prophet, the slave of Allah, Ibrahim Ibn ‘Awwad Ibn Ibrahim Ibn ‘Ali Ibn Muhammad al-Badri al-Hashimi al-Husayni al-Qurashi by lineage, as-Samurra’i by birth and upbringing, al-Baghdadi by residence and scholarship. And he has accepted the bayat (pledge of allegiance). Thus, he is the imam and khalifah for the Muslims everywhere.

Compare to Minhaj al-talibin written by Imam Nawawi, a shafi’i jurist of the 13th century, as cited in the Reliance of the Traveller (Book O. Justice, O.25.4):

The Caliphate may be legally effected by an oath of fealty, which, according to the soundest positions, is the oath of those with discretionary power to enact or dissolve a pact (ahl al-hall wa al-‘aqd) of the scholars, leaders and notables able to attend.

Other legal options for investiture as a Caliph would be appointment as a successor by the previous Caliph, or to seize the position of Caliph by force of arms, but both would seem to require a pre-existing caliph from whom to take power.

So the question of whether, under Islamic law as understood, Al-Baghdadi may be legitimately recognized as Caliph rests on whether or not the ISIS “people of authority” meet the legitimate definition for that position.

While there is a range of opinion of exactly what constitutes the “ahl al-hall wa al-‘aqd,” for this purpose, the commentary on Minhaj al-talibin included in Reliance notes that while the ruling is expected to be made by all people of authority able to attend, there is no such thing as a “quorum” and the presence or lack of any particular number of individuals is irrelevant.

A commentary by Muhammed Shirbini Khatib explains,

“…if the discretionary power to enact or dissolve a pact exists in a single individual, who is obeyed, his oath of fealty is sufficient.”

It’s unclear whether ISIS has at its disposal such a worthy dignitary. The quality of scholars supporting ISIS has always been a problem for the otherwise meteoric rise of the group once referred to as Al Qaeda in Iraq. While eminent Jihadi scholar Abu Muhammad al-Maqdisi wasonce a major supporter of founder Al-Zarqawi, the most notable scholars, including al-Maqdisi, sided against ISIS, in its dispute with Al Qaeda emir Ayman Al Zawahiri. If the “people of authority” are deemed to be those scholars most esteemed within the jihadi world, then ISIS’s appointment of a Caliphate lacks authenticity and legal backing. And that does not even consider the wider world of Shariah authorities, whether operating from within the Muslim Brotherhood’s orbit such as Yusuf Al Qaradawi’s International Union of Muslim Scholars (which has formally denounced the declaration), or in traditional venues like Al-Azhar University.

Despite a dearth of scholarship, ISIS can count on the fact that nothing succeeds like success. Two things are necessary for ISIS to win it’s gambit in declaring the Caliphate reestablished. The first is that it must continue to win. Continued territorial expansion fulfills its argument that ISIS is the implementer of the Shariah law over the largest and most historically relevant real estate.

Second, ISIS must succeed in winning the oath of loyalty of key elements of the global jihad. While ISIS has succeeded in gaining popular support among online jihadi communities, individual young mujahids are of no real consequence, except in as much as they serve as recruits to further conquest. What ISIS needs, ideologically, is the support of the emirs of major jihadi groups or the support of prominent scholars. So far this has not happened, although individual members have supported the call. Victory on the battlefield may lead to such oaths, as other jihadi groups look to take advantage of the boost in recruiting and fundraising that ISIS is receiving.

Still, it would be strategically useful to avoid unwittingly consecrating Al-Baghdadi’s claim to the position of Caliph while that issue remains open to (possibly bloody) debate in jihadist circles. ISIS is exceedingly conscious of media and particularly western media, and carefully formulates its message in terms most likely to terrorize, and appeal to media coverage (the logic of distributing both mass executions and crucifixion videos, and a jihad fighters holding cats Twitter account for example). They respond quickly to exploit opportunities that seem to affirm their caliphate status, as when ISIS supporters began to retweet a statement by DHS senior advisor Mohammed Elibiary that the Caliphate was “inevitable,” following ISIS’ success in Iraq. ISIS has capitalized on media coverage about their exploits, and claim in their communiqué that even the west recognizes their new status,

“They [referring to those Muslim groups with whom ISIS disputes] never recognized the Islamic State to begin with, although America, Britain and France acknowledge its existence.”

Given that ISIS is looking for legitimacy where it can find it, let’s not present ISIS’ declaration of Caliphate as a fait accompli. Instead to the degree the facts permit it, it would be advantageous to continue to point out that even within the legal context of shariah, ISIS is on shaky ground, that they are a relative newcomer, that in the grand scheme of the Islamic world they hold limited territory, and that they do not have the respect of key scholars or jihadi emirs. At the same time, we shouldn’t delude ourselves into thinking that these things may not change, especially if ISIS continues its winning streak. But for the meantime, ISIS is not a Caliphate… yet.

Originally appeared at Breitbart.com