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Post-Colonial Discourse on Siyasah in Islamic Article Kardan Journal of Law Post-Colonial Discourse on 1 (1) 112–130 Siyasah in Islamic Criminal Law ©2019 Kardan University Kardan Publications Kabul, Afghanistan https://kardan.edu.af/Research/kar Muhammad Mushtaq Ahmad dan_journal_of_law.aspx Abstract In the post-colonial discourse on Islamic criminal law, more often than not the right of Allah has been deemed synonymous to public right and, thus, the doctrine of siyasah as expounded by the Hanafi School has been generally misunderstood. Resultantly, the whole edifice of criminal justice system as developed by Muslim jurists has been turned upside down. One of the reasons for this development is that in the post-colonial discourse, scholars have generally ignored the proper legal manuals, particularly those of the Hanafi School, and have instead focused on works of general political theory. Another reason is that scholars have found it convenient to mix-up the views of the various schools. This paper critically examines this general trend and, then, elaborates the position of the Hanafi School with the help of the work of Imran Ahsan Khan Nyazee, a renowned jurist, who expounded the Hanafi doctrine of siyasah in detail and explained its peculiar nature. Nyazee’s work shows that the Hanafi doctrine of siyasah, if applied properly, can provide better solution to many complicated issues of criminal justice system in the modern world. Keywords: Islamic Criminal Law, Siyasah, Classification of Rights Dr. Muhammad Mushtaq Ahmad is Associate Professor and Director-General, Shariah Academy, International Islamic University, Islamabad, Pakistan. 112 Ahmad (2019) Introduction “Siyasah is a strict law (shar‘ mughallaz)”, says ‘Ala’ al‐Din Abu ’l‐Hasan ‘Ali b. Ibrahim al-Tarablusi (d. 844 AH/1440 CE), “and it is of two kinds: siyasah zalimah (tyrannical administration), which Islamic law prohibits; and siyasah ‘adilah (just administration), which takes the right from the unjust, prevents numerous forms of injustice, deters those who seek mischief (fasad) and helps in achieving the objectives of the law.”1 Throughout Muslim legal history, this doctrine of siyasah developed by Hanafi jurists has played an important role in the administration of justice. Thus, not only the Qanun of the Ottoman sultans2 was based on siyasah but also the Mahzarnama of the Mughal Emperor Jalal al-Din Muhammad Akbar (d. 1605 CE) primarily relied on the authority of the ruler to have the final word in matters of dispute.3 Moreover, even the British invaders in the Indian sub-continent initially resorted to this doctrine for asserting the power to punish ‘miscreants’.4 Later, however, as the British consolidated its power and asserted “sovereign rights” on 1 ‘Ala’ al‐Din Abu ’l‐Hasan ‘Ali b. Ibrahim al-Tarablusi, Mu‘in al‐Hukkam fi ma Yataraddadu bayna ’l‐Khasmayn min al‐Ahkam (Cairo: n.p., n.d.), 207. The Hanafi jurists in their manuals of law give some passing remarks to siyasah, generally in the chapters about the hudud and qisas punishments, but the most elaborate discussion on this doctrine is found in Mu‘in al-Hukkam of Tarablusi who was a judge in Tripoli. 2 For an interesting discussion on the Qanun and siyasah and their relationship with shari‘ah during the reign of the great Ottoman Sultan Suleyman the Magnificent, see: Mehmet Şakir Yilmaz, “Crime and Punishment in the Imperial Historiography of Suleyman the Magnificent: An Evaluation of Nişanci Celalzade’s Views”, Acta Orientalia Academiae Sientiarum Hungaricae, 60:04 (2007), 427-445. 3 See for the text of the Mahzarnama of Akbar: Nizam al-Din, Tabaqat-i-Akbari (Calcutta: Royal Asiatic Society, 1936), 2:523-24. See for details: Ishtiaq Hussain Qureshi, The Administration of the Mughal Empire (New Delhi: Atlantic Publishers, 1990). See also: Sheikh Muhammad Ikram, Rud-e-Kawthar (Lahore: Idara-e-Thaqafat-e-Islamiyyah, 1982). See for a critical view of this Mahzarnama: Abu Bakr Siddique, Shaikh Ahmad Sarhindi and His Reforms (Dhaka: Khankah-e- Mujaddidiyya, 2011), 90-96. 4 For example, Warren Hastings, the first Governor-General of Bengal from 1772 and of India from 1773 to 1785, wanted the British magistrates to interfere with indigenous courts in order to “supply the deficiencies and correct the irregularities” in Islamic sentencing and he justified this interference on the grounds of siyasah. See for details: Scott Alan Kugle, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in South Asia”, Modern Asian Studies, 35:02 (2001), 257-313. 113 Post-Colonial Discourse on Siyasah in Islamic Criminal Law the basis of conquest, it abandoned the doctrine of siyasah.5 In the post- colonial discourse on Islamic criminal law, siyasah has generally been ignored or its role undermined.6 Even when some scholars have worked on the general doctrine of siyasah, they have mostly concentrated on the works of Hanbali jurists, particularly the illustrious Ibn Taymiyyah (d. 728 AH/1328 CE) and his disciple, Ibn al-Qayyim (d. 751 AH/1350 CE), in the context of ‘public policy’ and ‘political economy’.7 This paper first highlights the problems with the approach of Orientalists on the doctrine of siyasah after which it critically examines the general trend among Muslim scholars in the post-colonial world on Islamic criminal law. Finally, it shows how of late the original doctrine of siyasah in the Hanafi criminal law has been rediscovered. 5 This particularly became obvious after India was annexed into the British Empire and was termed as British India in 1858. Henceforth, the British Parliament exercised powers of legislation for India and, thus, it passed the Indian Penal Code in 1860, which altogether ignored the principles of Islamic law. 6 This was because of the wrong presumption that the various schools of Islamic law were based on a “common legal theory” and thus it was permissible to switch over between these schools and mix up the opinions of various jurists. The fact remains that the concept of siyasah as expounded by Ibn Taymiyyah and Ibn al-Qayyim – though originally borrowed from the Hanafi expositions – was based on principles and presumptions distinct from those of the Hanafi School. See below for details. 7 See, for instance: Ibrahim ‘Abd al-Rahim, al-Siyasah al-Shar‘iyyah: Mafhumuha wa Masadiruha wa Majalatuha (Cairo: Dar al-Nasr, 1427/2006); Ahmad ‘Abd al- Salam, Dirasat fi Mustalah al-Siyasah ‘ind al-‘Arab (Tunisia: np, 1978); Bernard Lewis, The Political Language of Islam (London: University of Chicago Press, 1988), 9-23; idem, “siyasa” in A. H. Green (ed.), In Quest of an Islamic Humanism: Arabic and Islamic Studies in Memory of Muhamed al-Nuwaihi (Cairo: np, 1984), 3-14; Fauzi M. Najjar, “Siyasa in Islamic Political Philosophy”, Michael E. Marmura (ed.), Islamic Theology and Philosophy: Studies in Honour of George E. Hourani (Albany, 1984), 92-111; Mohamad Hashim Kamali, “Siyasah Shar‘iyyah or the Policies of Islamic Government”, The American Journal of Islamic Social Sciences, 06:01 (1989), 59-80; Yosseff Rapoprt, “Royal Justice and Religious Law: “Siyasah and Shari‘ah under the Mamluk”, Mamluk Studies Review, 16 (2012), 71-102. 114 Ahmad (2019) Section One: Problems in the Post-Colonial Discourse on Siyasah This Section briefly discusses some of the problems in the approach of Orientalists8 towards Islamic law in general, and the doctrine of siyasah in particular. It shows that Orientalists primarily focused on non-legal sources and there too only on a few selected works and that they generally ignored or undermined the proper manuals of Islamic law, particularly those of the Hanafi School. After this, it highlights a few significant problems in the works of the Muslim scholars who worked on Islamic criminal law in the post-colonial world. 1.1. Three Kinds of Works on Islamic System of Government Ann Lambton (d. 2008 CE) asserts that works on Islamic political economy can be divided into three broad categories: Broadly speaking three main formulations can be distinguished; the theory of the jurists, the theory of the philosophers and the literary theory, in which I would include primarily, mirrors for princes, but also the expositions of the administrators, since these are put forward mainly in literary works, and the scattered observations of historians on the theory of state.9 This classification has generally been accepted by the modern scholars.10 Western scholars have generally ignored the so-called “theory of jurists” 8 It is not generally accepted that “Orientalism” was part of the larger enterprise of colonialism. See for the monumental work of Edward Said on this issue: Orientalism (London: Penguin, 2003). 9 Ann K. S. Lambton, State and Government in Medieval Islam: An Introduction to the Study of Islamic Political Theory: The Jurists (Oxford: Oxford University Press, 1981), xvi. 10 See, for instance, John Kelsay, Arguing the Just War in Islam (Cambridge: Harvard University Press, 2009), 43-44. Kelsay gives ‘the theory of the jurists’ a very interesting title: “the shari‘a reasoning”. Explaining this way of reasoning Kelsay says: “Al-shari‘a stands for the notion that there is a right way to live. The good life is not a matter of behaving in whatever ways human beings may dream up. It is a matter of “walking” in the way approved by God; or, reflecting the notion of Islam as the natural religion, the good life involves behavior that is consistent with the status of human beings as creatures…Once God created the world in which we live… he did so in a way that distinguished right from wrong, good from evil. Further, God set these distinctions in the context of a world that ultimately moves toward judgment. On the great and singular day which the Qur’an speaks of in terms such as al-akhira (the hereafter) or yawm al-din (the 115 Post-Colonial Discourse on Siyasah in Islamic Criminal Law and little, if any, discussion is found in their works on the way the Muslim jurists analyze in their law manuals issues of political economy.
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