In the court of the mad king

Published: May 15, 2012
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The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm

The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm

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 15th, 2012.

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Reader Comments (44)

  • Ali Tanoli
    May 15, 2012 - 12:17AM

    Kadri sahab never been to Makkah or Madinah he wrote it book about shariah visiting pakistan
    india, Egypt i dont know what to say……

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  • Ejaaz
    May 15, 2012 - 12:27AM

    So are the laws as given in the Quran inherently valid or not? Do they depend on validation of the Mullahs? Are the Hudood Laws correctly interpreted given in the Quran valid or not? Or do they depend upon the King and the Mullah?

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  • Parvez
    May 15, 2012 - 12:59AM

    The days of ‘mad kings’ have long gone from the non-Islamic world possibly because they have correctly understood the meaning of a secular system of government.

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  • Ignorant
    May 15, 2012 - 1:04AM

    Imam Abu Hanifa lived from 699 to 767 CE while Al-Mamun became Caliph in 813 and remained one until he died in 833 CE. Abu Hanifa saw the days of Al-Mansur and one of his disciples Abu Yusuf was made Chief Qazi after Abu Hanifah had refused to accept monarch’s offer for the post and was believed to have been poisoned to death. How could Abu Hanifah remain steadfast to challenge the doctrine of created Holy Quran? Rather it was Imam Ahmed ibn Hanbal who stood against Mutazilites and Al-Mamun’s authority in this matter and was, therefore, badly tortured by the mad king.

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  • Ahmad Ali Khalid
    May 15, 2012 - 1:25AM

    There is a great deal wrong in this article. It deserves a robust response. Here are just a few points that deserve attention:

    With regards to Ibn Taymiyyah’s controversial fatwa, a conference was held that discussed this matter in great detail. The Mardin Conference, a gathering of prominent scholars led by Shaykh Abdullah Bin Bayyah (one of the leading senior jurists in the Islamic world today and incidentally the teacher of the prominent American-Muslim scholar Hamza Yusuf) to discuss the fatwa. The Conference investigated several aspects of the fatwa including the issue of its mis-translation in one of the texts circulated for religious study in the early 20th century. The extent of the mistranslation changed the whole substance and meaning of the fatwa and led it to be exploited by extremists. Other dimensions of the fatwa including historical context and its place within the wider canon of Islamic jurisprudence were discussed:

    http://muslimmatters.org/2010/06/29/the-mardin-conference-%E2%80%93-a-detailed-account/

    To the issue of the createdness of the Quran – again a gross historical error is made. It is not Abu Hanifa who is involved in this incident of Islamic history – it was Imam Hanbal who was put into prison and tortured for opposing the imposition of the Mutazilite theological dogma on the community of Islamic scholars. Incidentally, Abu Hanifa too was involved in political controversy but on a separate matter – he refused the position of Chief Qadi offered to him and instead his student Abu Yusuf took up the position (this again is a separate matter and is more to do with the the political role of jurists in pre-modern Islam).

    Again one can go into great detail about these issues and events – but it is clear the author of this article has got some elemental facts wrong and drawn some fairly questionable conclusions about the history of the juristic tradition within medieval Islam. It is this problem of religious illiteracy seen in works of both ”liberals” and ”conservatives” which does a great disservice to the integrity of intellectual discussion in Pakistan.

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  • Ahmad Ali Khalid
    May 15, 2012 - 1:26AM

    Kadri’s work lacks substance – it shouldn’t be read as an academic history of Islamic law (for that Wael B Hallaq’s work is the best example of this in the English language)

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  • Cynical
    May 15, 2012 - 1:34AM

    Brilliant,simply brilliant.As an aside the richness of the narrative reminds one of an old world charm associated with lucidly written english prose.
    Can’t wait for the next part.

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  • faraz
    May 15, 2012 - 1:37AM

    Abu Hanifa died 10 years before Caliph Al-Mamun’s birth! It’s Imam Hanbal who remained steadfast during minha

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  • ashar
    May 15, 2012 - 2:19AM

    Well, seems more like a publicity stunt than an article from you. In fact, without this level of publicity, books like these cannot find a good market since already the work has been done on this subject and exhaustive accounts have been compiled. But you forget one thing in the beginning that is the introduction of the author.

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  • Mirza
    May 15, 2012 - 2:30AM

    @Parvez: I agree with you 100%.
    There should be a complete separation of state and church. Just like there is a complete separation of religion and a hospital care or engineering plant. Everybody has equal rights and treated equally no matter what their belief are. Why would educated people need mullahs?
    Thanks and regards,
    Mirza

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  • Shehzad Shah
    May 15, 2012 - 3:46AM

    Faisal, I believe the imam in question was Ahmad ibn Hanbal, not Abu Hanifa.

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  • Sultan Mehmood
    May 15, 2012 - 3:56AM

    Oh My Dear God, please save Islam from these pseudo experts.

    Another ignorant expert on Islam.

    Abu Hanifa stood against Mamun? Are you in you in your senses? Mamun became Caliph in 813, and Abu Hanifa died in 767. What is going on ET? Even Mamun’s father wasn’t a caliph until the death of Abu Hanifa. Then Mamun’s Brother, Amin, became caliph then Mamun in 813 after the 50 years past Abu Hanifa.
    I can’t imagine how such a mistake can occur let alone getting published.

    ET, do something about publishing this Please!!!! Or I will see how I can take it up legally!Recommend

  • pmbm
    May 15, 2012 - 5:04AM

    Muslims by ignoring to understand Quran and Sunnah has given power to Mullahs and mad kings. Q&S establishes right from wrong. But punishments for wrongs or crimes are left to the Judges of the time and can be modified, but basic principles do not change with time.
    Lawyers in particular should familiarize themselves with Quran/Sunnah as Justice Ramday and Mohammad Asad(born Leopolde Wiess) learnt.

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  • Learner
    May 15, 2012 - 5:36AM

    The man who stood up to Mamun during the inquisition was not Abu Hanifa but Ahmad Ibn Hanbal. This needs to be corrected.

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  • May 15, 2012 - 5:48AM

    World has reached the moon.. and we are still stuck in 6th century.

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  • Kini
    May 15, 2012 - 6:28AM

    @Ejaaz

    There are no laws in the Quran. They are broad principles narrated as allegories. They are both beautiful but vulnerable. Vulnerable because nutcases can intepret anything they want out of them. Beautiful because they test one’s ability to question with intelligence, a trait that Islamic societies seem to discourage.

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  • You Said It
    May 15, 2012 - 6:31AM

    Ibn Taymiyyah was a very smart man. The world will forever be grateful to him.

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  • Spud
    May 15, 2012 - 6:35AM

    Who gives the Mullahs power to ban use of cell phones by women and any woman defies this edict will have acid thrown in her face or threats to female NGO employees as was reported few days ago? No matter how much academics and scholars discuss these matters the illiterate Muslims and there are many will adhere to their inhumane and dastardly fatwas. Muslims all over the world should watch out and agitate to reduce the power of these idiots.

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  • Arindom
    May 15, 2012 - 7:40AM

    why do you guys always mix up religion in everything – there lies all the root of all this confusion

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  • narayana murthy
    May 15, 2012 - 9:22AM

    It’s interesting, how many commentators here are arguing with facts/dates/quotes from Islamic history.

    If the very same people invested their time and energy into physics, mathematics, chemistry…Pakistan would be progressing, instead of regressing.

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  • BlackJack
    May 15, 2012 - 9:32AM

    I frankly do not know anything about Abu Hanifa or Ahmad Hanbal. What I find amazing is the level of interest (as described by one of the well-informed comments, there are international conferences to discuss medieval fatwas) and knowledge of ordinary Pakistanis on jurisprudence in the 14th century CE and earlier – in the Arab/ Turk world! The fact that the difference between right and wrong is not black and white (and treatment the same regardless of whether one is Muslim, Hindu or an atheist for that matter) – but is still dependent on some interpretation of the Quran, is probably the root cause for much of what plagues the muslim world. At the same time, self-preservation seems to have been at its inventive best even in those times – the Mongol army’s faith clearly was no obstacle as is illustrated in this well-written article.

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  • Feisal Naqvi
    May 15, 2012 - 9:36AM

    As several of the commentators have pointed out, there is a gross factual error in the article: the person I intended to refer to was indeed Ibn Hanbal. The mistake is entirely mine and I am very sorry for it. I have, however, requested the ET staff to kindly fix my mistake immediately.

    The mistake aside, I think the arguments in the column remain valid and I thank all the commentators for taking the time to respond.

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  • kaalchakra
    May 15, 2012 - 9:41AM

    Pakistani Hindu

    The world might be reaching the moon now, but the Prophet (pbuh) had split the moon when the world lived in caves. Has anybody else replicated the feat?

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  • Er
    May 15, 2012 - 10:08AM

    The author uses the phrase “beg the question” incorrectly.
    http://en.wikipedia.org/wiki/Beggingthequestion

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  • Aziz Akhmad
    May 15, 2012 - 10:45AM

    It might seem as nitpicking, but it’s important to point a factual error in the article.

    The Abbasid caliph Al-Mamun’s name was not Mamun Al-Rashid, as mentioned in the article. It was Abdullah Al-Mamun. Abdullah was his given name and Al-Mamun was the title he assumed on becoming caliph, a practice followed by all the caliphs of the Abbasid dynasty.

    Al-Rashid was the title of Al-Mamun’s father, the famous Harun Al-Rashid of the Arabian Nights.

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  • May 15, 2012 - 11:48AM

    @kaalchakra: Sorry sir.. I can’t comment on that one. I love my life.
    May your God bless you.

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  • Parvez
    May 15, 2012 - 1:00PM

    @Mirza: Appreciated.

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  • Parvez
    May 15, 2012 - 1:09PM

    @kaalchakra: You Sir, with your comments are certainly very close to boggling the minds of normal mortals. Cheers !!

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  • aley
    May 15, 2012 - 2:11PM

    @Parvez:
    don’t worry, we are preparing our local version of mad king in person of The Great Tsunami Khan the dim…get ready of re-enactment of Zia regime

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  • Lobster
    May 15, 2012 - 2:35PM

    @Feisal Naqvi:

    “As several of the commentators have pointed out, there is a gross factual error in the article”

    Totally agree, that also hints why not everyone should be allowed to decide on religious matters only the learned ones. That’s not monopoly of Ulemas but that’s the only sensible thing.

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  • Arindom
    May 15, 2012 - 3:57PM

    @kaalchakra:
    haha!!

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  • Sultan Mehmood
    May 15, 2012 - 3:58PM

    @Feisal Naqvi:

    The You must not comment on such matters. Even a kid with primary level education of jurisprudence will know this stuff. To mistake between Ahmed Ibn Hanbal and Abu Hanifa is not a simple one, it shows your complete ignorance over the matter.

    @narayana murthy:

    Another date for you, Around the same time in 712 Muhammad Bin Qasim invaded India starting the 1000 years long rule of Muslim. :)

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  • elementary
    May 15, 2012 - 4:12PM

    @narayana murthy: If you find yourself out of depth on a subject doesn’t mean that subject is not worthy of discussion.Islamic History like anyother History has it’s good and bad points and lot can be learnt from the study of it.

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  • May 15, 2012 - 4:13PM

    I think the arguments in the column
    remain valid

    You “think”, and that makes it solely a personal opinion ..

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  • John, the atheist
    May 15, 2012 - 8:58PM

    @Kaalchakra..

    And you still beleive in these fairy tales…. Try to reason out things instead of going behind like sheep….

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  • Ali Tanoli
    May 15, 2012 - 9:08PM

    Mr Faisal could u kindelly used Imam also with Imam Ibn Hanbal and Imam Abu Hanifa (R,A)
    PLEASE.

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  • Rhazes
    May 15, 2012 - 11:28PM

    @Sultan Mehmood: Feisal has every right to comment on this matter. This is an op-ed piece, not a peer reviewed scholarly article. If you have a problem with this article, then go ahead and submit a rebuttal.

    Even a kid with primary level education of jurisprudence will know this stuff.

    Unfortunately such a kid is not usually capable of reading an article such as this on the Internet, even after he has grown up. The kind of people that visit this website are the people for whom the content of this article is new information.

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  • Sultan Mehmood
    May 16, 2012 - 4:13AM

    @Rhazes:

    Faisal has every right to distort the history? WHAT? I guess people like deserve “experts” like him. What a shame!

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  • Sultan Mehmood
    May 16, 2012 - 5:04AM

    @Rhazes:
    And Yes I know it’s you Mr. Feisal.

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  • Kini
    May 16, 2012 - 6:42AM

    @Sultan Mehmood

    Feisal has every right to comment. Nobody has a monopoly over religion or for that matter religious history.

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  • Sajid
    May 16, 2012 - 8:22AM

    In the conferences that the developed world (developed and more evolved beings of human species, that is) indulge today, they discuss possibility of life sustaining conditions that can be (if) created on moon. In conferences that we indulge in, we discuss a 13th century fatwa. Way to go, brothers! (not sisters! they in kitchen).

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  • Sajid
    May 16, 2012 - 12:16PM

    @Sultan Mehmood:

    And Yes I know it’s you Mr. Feisal.

    You can’t know that unless you were looking over his shoulder when he typed that in. That is more of a gut feeling that you have shaped by your prejudice (just developed?). If I go by your method of “knowing” things, I would guess you are Ali Tanoli, but I won’t because I don’t know that.

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  • pmbm
    May 17, 2012 - 5:43AM

    @ Mirza
    Yes to Separation of State & church. But Islam does not have a Church. Muslims do not need mullahs, they are expected to learn religion and practice it by themselves. Islamic principles will make better care-givers and care as well better engineers and better engineering,Sir.Of course there is no compulsion to religion, one does not have to be a muslim, but knowledgeable Muslim makes a better human being.

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  • Ahmad Ali Khalid
    May 17, 2012 - 8:14AM

    @Sajid:

    Excuse me but you do not have the faintest about what you are thinking. The reason that fatwa was discussed is because it is used as the most potent scholarly justification for violent militancy in the Islamic world today. The conference debunked this interpretation of the fatwa by instilling some much needed juristic literacy in the Muslim world today.

    The Conference was necessary because it laid down some clear juristic and legal boundaries for ethical conduct in the case armed struggle is necessary. The Conference wasn’t over a random fatwa – it was over a very serious issue that needs to be discussed. Its not about religious dogma – its a legal question that has implications for national security.

    And that same goes for the other wise guys who have similar comments….

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