In the court of the mad king

What is 'right' in Islamic terms depends not on force but scholarly consensus to what is mandated by Quran, Sunnah.

Sadakat Kadri’s recently released Heaven on Earth: A Journey Through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslim World, is a brilliant read, an erudite yet accessible survey of how Islamic law has grown from the relatively uncomplicated early days of the Holy Prophet (pbuh) to the current miasma of competing sects and interpretations.

What I found most interesting about Kadri’s book was his effort to track down the roots of Salafi jurisprudence and to situate the most controversial aspects of Islamic law in their particular context. For example, modern day jihadis regularly rely on Ibn Taymiyyah’s famous fatwa from 1303 AD allowing the killing of fellow Muslims. What Kadri elaborates is that the fatwa was handed down in a particular context, i.e., the impending invasion of Egypt by the ostensibly Muslim armies of the Mongols and that given the past record of the Mongols what was facing the Islamic world at that time was potential obliteration.

At the same time, while Kadri’s book has great merit as a broad survey, it retains also the demerits of a survey. More specifically, while Kadri takes great pain in establishing the fact that Islamic law places great emphasis on justice and in noting that the entire 500 year history of the Ottoman Empire only contains one recorded incidence of a criminal being stoned to death, he falters at explaining why Islamic scholars insist with such vehemence in retaining punishments which they then fail to enforce. In other words, what perplexes Kadri is the ulema’s insistence that the punishment for adultery must be stoning to death while at the same time acknowledging that this punishment should, in practical terms, never be applied.

With appropriate disclaimers for my audacity etc., let me present a hypothesis in this regard.

As my learned friend Ejaz Haider argued a few weeks ago, force precedes law. What that means is that first a ruler acquires the power to beat everybody else into a pulp and then that power becomes conditioned upon rules.

What makes Islamic law particularly noteworthy is the fact that it provides an independent source of power; independent, that is, from pure force. In other words, even if a new king takes over with the undoubted ability to crush his opponents, it does not automatically make him or his actions Islamically ‘legitimate’.

More importantly, Islamic legitimacy is a serious issue, not a theoretical problem. When Caliph Mamun Al Rashid announced that all Muslims had to accept the doctrine of the created Holy Quran, he was initially opposed by hundreds of Islamic scholars. A summons to Baghdad and some ‘enhanced interrogation’ sorted most of them out. As Kadri narrates, in the end, only one of those scholars remained steadfast: the man now known to Muslims as Imam Hanbal.

Whether Imam Hanbal was right or wrong is a different story. What counts for the purpose of history is that he established the point that what was ‘right’ in Islamic terms depended not on brute force but on an abstract construct, the scholarly consensus as to what had been mandated by the Holy Quran and Sunnah. In other words, Imam Hanbal established that unless the ruler of a Muslim country wanted to deal with an additional set of headaches, that ruler needed the ulema’s stamp of approval.

Kadri’s survey doesn’t go into further detail regarding this aspect but what other scholars have shown is that Imam Hanbal’s legacy generally translated into a cushy living for favoured members of the ulema fraternity. In almost all cases, the ruler of the day graciously recognised the scholarly credentials of his local muftis and the local muftis, in turn, graciously recognised the divinely-sanctioned legitimacy of the ruler.

But in all these centuries of mutual backscratching, the one thing that the ulema clung on to was their exclusive right to determine that which was mandated by God. And the reason for that is simple: if the ulema lost their status as divine interpreters and retreated to being mere advisers with sensible ideas, their power would have been significantly compromised. It is one thing to tell a king drunk on power that he is trespassing against God’s will. It is another thing entirely to tell him that what he is doing is legitimate but generally not very sensible.

Kadri takes great care to point out that Islamic law places more of an emphasis on mercy than comparable Christian or Judaic doctrines. He also constantly compares ostensibly harsh Islamic punishments with equally harsh laws from the medieval West to show that at the time they evolved, Islamic legal doctrines were no worse than comparable options.

At the same time, Kadri’s comparisons only beg the question: why has Islamic law not changed?

The answer is inherent in the dynamic set up by Imam Hanbal. If the power of Islamic law comes from the ability of its practitioners to tell kings when to back off, then the magnitude of political power (i.e., the ability of kings to coerce and threaten their opponents) is such that Islamic law practitioners have been forced at all times to justify their positions in terms of the most unimpeachable of sources. At the same time, the standing up to power bit also explains why Islamic law has never mellowed: it takes courage to confront a king, not necessarily excellence or subtlety in jurisprudence.

All well and good, you might say, but haven’t we left behind the days of mad kings? The short answer to that query is, ‘no’; or, at least, ‘not yet’. More on this point next week.

Correction: An earlier version of this article incorrectly stated Imam Abu Hanifa instead of Imam Hanbal. The correction has been made.

Published in The Express Tribune, May 15^th, 2012.