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it then the lryulon of idhiliyyah
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#"T Dr. I{alil Inalcik reading his paper Qanun and Shari'ah. The Vice "Q you wlto believe! Take not the Jews and the Christians
q,' Ea
s*" ..;. -Chancellor Dr. Jameel Jalibi is on his left while Dr. Hashmi is on
for friends. They are friends one to another. He among you
I .i.,
his right.
,-:{ ";' who takes them for friends is (one) of them. Lo! Allah guides
-..", q'
not wrongdoing folk.
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t-. "o',,, "Altcl it rnay ftappen that Allah will vouchsafe (unto thee)
the victory, or a commandment futnr)from His presence'
l'hen they will repent of their secret thoughts." (5:50-52).
2 3
Dr. Janteel Jalibi Saltib ln studying Islamic institutions basically two different
Dr. Yuzu f Abbas Hashmi, approaches are made. Strict religious interpretation calls for a
Excellencies, [:ides and Gcnthmen, commentary based on the immutable, eternal precepts of Is-
lam as embodied in the Qur'an and,Srrlrrch. On the evidence
of tlrese fundamental sources it is asserted that "Sovereignty
Prologue
bclongs to Allah; the universe is in reality the kingdom of the
I anr greatly honoured by the invitation, of one God. Thus, there is only one source of law". His law
the University
governs the entire universe, including human society and the
of Karachi to deliver these lectures in comnienroration of the
st a te.
grcat scholar and educationist Prof. Dr. I Ishtiyak Husayn
Qureshi. it. At tlre outset we ntust admit the fact tlrat as far as the
i
I lrad the unique opportunity to knoul him many years trrrity and continuity of Istam is concerned this strict sunnT
bcforc hc left this world foreternity. lt waf in thc year 1953 interprctation played a crucial part throughout Islamic his-
wlten the first conference on Islalnic Culture was held in tory. Islam preserved its unity in time and space only through
Princeton. Prof. Qurcshi, then Ministcr of Ebucation, was one
suclr 'ulentd as Al-$ban'l Ma[k and lbn TaynrTyyah. By
defining what is authentic Islam they safeguardecl Islam from
of thc distingrrished participants of the confprence.
disruptive inroads in various historical settings. There is no
doubtrthat Islam owes its continuity and solidity ai a unique
I
Generally speaking social-historicJl rnethod is concernecl But what is more, in Islamic history, at least after a
with the actual conditions and historiial,processes which give certain period, there existed laws made and enforced ex-
rise to a particular institution. It is to be noted that Islamic clusively by the sole authority of the Sultan or civil political
jurisprudence itself was not unfamiliar with an empirical autlrority And an independent source of law implied an in-
nrethod in expanding the corpus of Islamic,'law. Under the dependent political authority. Indeed the fundamental ques-
lrrinciple of ijmd' it is confirmed that the sJrarT'ah was tion is whether or not political power as a separate entity is
dcvcloped by the infallible authority of the Muslim com- a necessity in Islam. In other words, whether or not Islamic
rnunity, or society itself. In the nineteenth century those prescriptions really needed to have in force an external com-
rrrodernist Muslim 'ulemd and thinkdrs who advocated the petling authority. In actuality, there were periods wlten undgr
openi4g of tlre gate of iiilhad strove to;give its widest applica- the rule of a non-Muslim state an Islamic community and the
tion to this clynamic principle of Islanr.ii jurisprudenti. As $lari'ah continued without having a political authority of its
is wcll known, those authorities who particularly favoured own. However, in later times in Islamic history the question
tfre principles of iimii', istil,tsin and iitisldl.t belonged to the was discussed for the necesity of a temporal power, or the
IJanafi school of law which was theottoman official nndhab. state.
ottoman legist, Muhammad Al-Fanirilwas considered oi-e of
those authorities who expanded the principle of ls/rs/ri1r. To In still later periods, the question came up as an issue of
give nn exanrple, Ottoman Slwyttri,al-lsilm Abu'i Su,fd vital importance for Islam and the Islamic community.' In the
approved the wakfs in cash which we{e widely established in eleventh century in particular when the Sunni Islam was in
tlte .sixteenth century ottornan sociely.'His reasoning was great danger under the attacks of the tl'i'f sects and the
tlrat thousands of poor people, 'ulenid, stuclents and poor- crusaders the existence and all the necessary underpinnings of
houses benelltted from this institutidn and'its abrogation a strong cliphal power was accepted as a necessity for the
would have caused widespread damaee to the Muslim com- survival of Islam itself.
nltrnity(2 ).
i
I
Ilowever, the establishment of an independent ternporal
Tlrus, the principle of isti;la(, public welfarc, was used to power signifies also the foundation of an independent law
alrprove thc institution of cash wokfs,lwhcreai"Mehmed Bir- making authority. On the othei trana, casbs *.rr coming up
givi, a Hanbalite, vigorously attackedj trim on the grouncls for which the., legal principles of the $lwri'ah afforded no
tlrat caslr walcfs involved ribd so it wds rg.inst the shari'alt. direct basis for solution. There were special cases, in particular
In their tegal clecisions and reform nl.ururrs the 6itornun in the area of public affairs, that no Slloii'authority could
Icgists arrd bureaucrats always referrdd to ilre principle of produce a proper answer, and thus, had to be taken care of
isti'yloh or the welfare of trre Muslini commu,,ity to keep exclusively by the civil authority. Even when such Sultanic
pace rvith the needs of the society and Ctate.
,.rulings were interpreted as contrary to the $ltarlah they were
still enforced as necessary for the nraintenance of the civil
Irr brief, sonre 'ulentd eviclently aclllerecl to the evolution- authority, and ultimately for the well-being of the Muslim com-
ary. principlc in tlre Islamic law particularly when welfare of munity. They were recognized under the niune of (dnfin3)
the Muslinr cornmunity was in questionl i
I
or dawdbit that is, statelaws as an entirely independent
department of Ia." side by side with the Slni'ah. Histo-
rically speaking, the parallei development of ttrr sultanic
6 7
of the Caliphate appears to have gained momenttrm with the on the other hand, empirical theories on politics gave rise
lranian Buwayhid and then Turkish Seljukid domination in
to an independent non-religious literature known as si1tfiss1
ninre, naslhat ndrne, etc. which made part of ethics based on
the tenth and eleventh centuries. Tlttts, while the old Sassa-
nian conccpt of state based on the notions,of absolute power non-lslamic sources. piyE'al-Dln Birinl's (Barni)(s ) work,
and 'addlah Ciustice) became prevalent in Islamic political tlrough not as popular as Nizdm al-Mulk's Siydsatn-anre, is a
remarkable product of this lrano-Turkish theory of kingship
theory, powerful Turkish dynasties brought in an actual in-
dependence of power; and the central Asiatic traditions of
and law. Barni's theory to explain the necessity in Islamic
state of the state legislation as an independent department of
beg-ea|an (lord-Emperor) and t6r{i (lmperial Code) were
law is derived from the theory of power state as the prere-
introduced and firmly established as the foundation of state
quisite of an orderly religious social life. It is argued that lor
authority in the Micldte Eastern lands. In other words, in the
tenth and eleventh centuries the concept 0f itate and law in the survival and good order of the Muslim community and
Islamic landsundenvent a profound change in favour of an in-
for tlre enforcement of the $laii'ah itself ruler with
^
absolute power is a necessity. And "royal government", Barnl
dependent civil authority and its law maklng power. Turkish
asserts(6), "contrary to the Islamic sunna can only be carried
rulers asserted their absolute independence in the matters of
public authority and aszumed tfte right ito organize public on by following the policies of Kbusrau Parwiz, and the great
emperors of ancient lran". "The prophethood" he adds "is
adntinistration in accordance with their own concept of state
the perfection of religion and kingship is the perfection of
attd larv. In fornt, suclt larvs were interilreted as Sultanic
worldly good fortune. These two perfections are opposed and
orders on practicat matters and theoretibally neutral, or it
rvas claimed never contrary to the spirit of the $Ltari'ah. Sul-
contradictory to each other, and their combination is not
tanic orders formulating general rules constituted an area of within the bounds of possibility" $.
civil law side by side with the $Jnri'alr, thouglt no such laws
in codified fonn reached us until the Ottonratts The new "lt became necessary for the rulers of Islam to follow the
trend found its reflection even in the books written by great policy of the Iranian Emperors (unbelievers in God) in order
lolit,t;;;r rr nr-r'l6wardl and Ab-u N{ansfr Al Baglrdidl to enzure the greatness of the True word, the supremacy of
during the periocl. Al-Mdwardf maintained ih. n...siiiy of .the Muslim religion, the power of rruth, the suppression and
secular power (Kuwwa al-fulnnah or an6rah) as a means to overthrow of the opponents and enemies of the Faith, the exe_
errsure tlte inrplementation of the Shari'ah,(tanfidh ol<1.rkfi.11, cution of the oders of religion ancr the maintenance of their
and the perfection and survival of tne Muqlim conlnlunity(al. own authority"(7). This statement about royal authority is
He speaks of hirdsut al-Dfn (guardian-ship) and Sit'dsat al the key to the whole tlreory of kfurgship of Barnl Descencling
4ttttfi'separateiy.'ln otlter words, for the welfareof Islanr and from Turkish noble family and a counsellor to Muhamnracl b.
rlre Islatrtic comnrunity, or in Islanric temtinology nws,lal,ta, Tughluk Ba rnf wrote Fa tdwd-i-JahdnddrT, hinci pl es'of Go r,rr,,-
public interest, was recognized as a principle justifying an ment in about 1359. According to Mohamnrad Habib, the
irtdependent political authority and its competence to ntake
laws. The argument was used again in the Ottoman times to
defend the independent nature of the Sultanic authority and $ when for a fuu period-of ten years the nabi/rarill as Allah's rr6"r'D
(vice'gerent) and f,lalifah (representative) exercised go\mance
its independence to make Sultanic laws. and power in the dominion of his own-creation he demonstrated to
all the political pundits that the combination of ris6lat and wordly
government was possible and that the spiritual and the mundane
flourished in his sunnah with perfection without anv contredicrinn
B
I
well known Aligarh scholar, Barni "is the lrst theoretician
to justify secular laws among the Musalmanr"(8 ). Actually 'The establishment of whichever of these two depends
Ilarni's source can be traced back to the revival of olcl Iranian absolutely on the presence of a king (PddiilAh). It is not
royal literature of advice under Sulla-n Mallnrild chaznawi, necessary to haw for every age a law maker in religion
and quite similar ideas are to be found in the-Turkish (SEri'), i.e., a prophet, because a divine law, for instance Is-
Kutadgu Rilig, ("The Auspicious Knowledge"), written in Iam, zuflices for the worldty and spiritual harmony (among
107l. Apparently both works had their common source in men) to the hst day. But the presence of a PddiilAh", he
the Ghaznavid lran. In order to strengthen their masters' continues, '.is. absolutely neces$ry in every age. Because
authority lranian bureaucrats were zearously focusing their the worldty affairs ftnas.blal in every age need to be taken
attention to the lranian theory of kingship during this period, care of, there should be an absolute authority (wildyah) in
and pandndnwh, nos.illatnfinah uterature hourished in Islamic disposing ordinary affairs of this world. If his authority
Iands particularly following this period of lranian ascendency. ceases to operate, men cannot continue to live under the
Even Qlrazzali, we know, wrote a treatise in the same genre. best of the conditions but perhaps.they will all perish"(I0 ).
'
10
11
A.D. and the practice can be observed as )ate
as the reign of
the ottoman sultin Melrmed It (r4sl-l4gr), Works sucfi as Ttiziikdtl Timilri whoever be responsible
.onqu.ro,
of constantinopie and the ,rri rouna.i of the the ottoman for their composition, can be linked to the old Turco-Mongol
empire. Mehrnpd II proclaimed two icdnfinndmes
as the tradition and compared 1o the (ilfinn7ame of Melrmed the
furrdamentat laws of the reatmii'it. n;;;.i;*
uoot , contained Conqueror. Also the Ayinl-A'kbait, though like Kutadgu
no direct shari'ah principle but emphasized the concern
to Bilie it mainly followed the Iranian tradition, may be put in
establish pilUti. institutions of the emffi-- the same category with respect to its form and function.
side by side with the lranian theory of kingship the Tur-
lbh,gglcept of state and law is expounded in ilre Kutadgu As to technique of making a state-law, many of the so-
Biltgrt'), I royal advice book written for a Karakhanid sul- called 'urf;Jaws or l5infrns were originally the local 'urf
tan in 1070. wa'addt followed and practiced by the people for genera-
tions(r s). What the ruter did was simply to legalize thbm in a
Kingship, it saicl, stands on the foundation of r1ffffrr( r e ).
Sultanic order. Thus, the Sultan's 'urf, or temporal power
The King organizes his realm and its people through a "tdrfi"
was the key factor to convert local AdAt into laws. In the
'
"Two things"it added, "consitutute the foundation of a.realm, state organization the Sultanic power was responsible for
wisdonr and tl6r(". At another place it says ,,kingship is good converting into state laws the practices and concepts which
tlring, bfi t6rt is better". In the Turkish conception of state had come down from ancient lranian and Turkish sources.
the Q5$an's law is inseparable from the kut, that is, divine
Srant gf good fortune to have kingship. The Turkish notion Itappears that there was a prrallelism between the Mus-
of the divine origin of sovereignty was readilyktentified with lim-Turkish states founded in India and the Ottoman Empire.
the Islamic concept of sovereignty,and evidentlycontributed This parallelism was quite natural if we remember that both
to the absolute character of the Sul[a-nic power in the Turkish had the same origins in Central Asia.
Islamic sultanates. There is no doubt that the introduction of
these new notions into the politically decaying Islamic world I tried to show how Ottomans and other Turkish states
gave a new impetus to the public life in Islam. over a time before them were able to find solutions to the problems
the Sultinic larv as the instrument to reorganize Islamic state occuning in the fiel.d of public interest by using laws-kirlrins
and guarantee the inrplementation of the slnri'ah became based on 'urf u'dddt and the ruler's authority. But they all
paft and parcel of the Islamic culture. It rea[zed its most recognized the supremacy- of the $lnfr'ah.
developed form in the ottoman empire, the most centralized
and autocratic Islamic state in the history of Islam; and there To sunr up, in the Ottoman E,rnpire and earlier Muslirn
is no exaggeration in suggesting that if rurkey today is the states there was an independent law-making activity to meet
only Islarnic country under a secular political system and .new situations concerning mainly public life.
follows a course different lrom other lslamic states this is
largely due to this ottoman background. It should be added Since the enforcement of the $lari'alt itself was depend-
that other Islamic corrrmunities under dynasties of Turkish ent on the presence o f an ulu'lqntr that is political authority,
origin had similar experience in their history. tlre 'ulentd concluded that laws necessary to consolidate
political power be made part and parcel of the Islamic state.
12
13
on the otherhand since the I I th century there were also laws
and institutions origrnating d,ectly from Iranian and rurkish FOOTNOTES
traditions which becarne prevalent with the rise of Islamic
Sultanates in Iran and India. l. For ldnfrn nd ldntnnllmc *s Encyclopdedla of Islom,
editbn, vpl. IV, 556-566 (H. lnalclk).
second
2. Sec H. tnalclk, 77tc Ottoman Emplre, Tlrc Chsslail Ago
Bureaucrats in the service of great sultans presented these IJ00-1600. london: Weldenfeld and Nlcolson, 184.
practices and notions in a series of "advice to king" fitera-
3. See "Kiniin", Et2, 559-560.
ture. These played a central role not only in edifying the
nrlers but also provided guidance to bureaucrats and states- 4. Al4 t1ki,m al,Sul 6nTY Y a, 77 -7 8.
men. A very extensive law-making activity, indpendent from 5. Fatdwd-yl pJhhddri, ed. Dr. A. Saleem Khan, I-ahore'
Research SJciety of Pakistan, Unlversity of hrnjeb, 1972;
the Shari'ah under the ottomans essentially followed the for rnalysis of the next see M Habib, and Dr' Afsar'
notions provided by this literature. Thus in pubtic life the ' Poltttcal rheory ol Dehll sultanate: Allahabad, Kltab
importance of Kdnfrn-making side by side with the gfiari'ah Mahal (n.d.).
cannot be minimized. 6. M. Habib and Afsar,39.
7.IbId.
8.Op.clt. 139.
9.The Htstory of llehmed the conqueror, Text Published
in Facstnile with English Translation by H. Inalcik and
R. Murphey, Minneapolis and Chicago: Bibllotheca Isla'
mlca, I 9?8,,Text: 7b-l 4 a.
10. /bld. 9 a.
PRINTEDAT@
URDU BAZAR, XNNECHI
H
Dr. l.H.Qureshi Memorial Lectures
WARI%H,
UMMAIH
r and
KHILAFAH
Lectures by
Dr. Halil Inalgik
Dr. Muhammad hbd al-Ra;uf
-
Dr. lsm5'il Reii al-Fii'rfiqT
edited bY
Yusuf Abbas Hashmi