In his lecture ‘Political Thought in Islam’, delivered in London in 1908, Iqbal explained some of the aspects of conventional constitutional law in Islam. The following excerpt gives us an idea about the drift of his mind.
In theory all Muslims, men and women, possess the right of election. There is no property qualification. In practice, however, women and slaves did not exercise this right. Some of the early lawyers seem to have recognised the danger of mass-elections as they endeavour to show that the right of election resides only in the tribe of the Prophet. Whether the seclusion of women grew up in order to make women incapable of exercising a right which in theory could not be denied to them, I cannot say.
The elector has the right to demand the deposition of the Caliph, or the dismissal of his officials if he can show that their conduct is not in accordance with the law of Islam. He can, on the subject, address the Muslim congregation in the mosque after the prayer. The mosque, it must be remembered, is the Muslim Forum, and the institution of daily prayer is closely connected with the political life of Muslim communities. Apart from its spiritual and social functions, the institution is meant to serve as a ready means of constant criticism of the State. If, however, the elector does not intend to address the congregation, he can issue a judicial inquiry concerning the conduct of any State official, or any other matter which affects the community as a whole. The judicial inquiry as a rule does not mention the name of any individual. I quote an illustration in order to give an idea of this procedure:
In the name of God, most merciful and clement. What is the opinion of the doctors of law, the guides of the people, on the encouragement of the Zimmis, and on the assistance we can demand from them, whether as clerks to the Amirs entrusted with the administration of the country, or as collectors of taxes?... Explain the above by solid proofs, establish the orthodox belief by sound arguments, and give your reasons. God will reward you.
Such judicial inquiries are issued by the State as well, and when the lawyers give conflicting decisions, the majority prevails. Forced election is quite illegal. Ibn Jama, an Egyptian lawyer, however, holds that forced election is legal in times of political unrest. This opportunist view has no support in the law of Islam; though undoubtedly it is based on historical facts. Tartushi, a Spanish lawyer, would probably hold the same view, for he says: “Forty years of tyranny are better than one hour of anarchy.”