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The Great Yasa and the Siyasah Shari'iyyah Some Comparative Observations

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The Great Yasa and the Siyasah Shari'iyyah Some Comparative Observations The Great Yasa and The Siyasah Shari'iyyah Some Comparative Observations Oleh Akh. Mmhaji Lanjutan Edisi yang lalu Akh. MinhaJI, lahirdiFamekasan-Madura, adalah dosen Fak. Syariah IAIN Sunan Kalijaga. Karya-karya iullsnya selalu membahaspersoalan-persoalanseputarhukumIslam. Setelah selesai program Master pada Institute of Islamic Studies, McGill University, la menempuh program S3 pada institute yang sama dan sedang menulls disertasi berjudui "Ahmad Hassan and Islamic Legal Reform in Indonesia." C. Some Aspects of Comparison. Interestingly, it should be noteworthy to mention In the two previous sections (See Unisia No. 28, here that the term Siyasah was sometimes used to denote 1995), wehave discussed the issue ofboth the Great Yasa the term Yasa. It has been reported, for example, that in and the Siyasah Shar'iyyah, and the following section is his biographical dictionary, aUDurar al-Kaminah, Ibn an effort to compare some important points between the Hajar al-'Asqalani used the word Siyasah in the sense of two. Inconcrete terms, this section tries to trace how far Yasa. He says, forinstance, "kana 'arifanbil-siyasa" which both the silmilarity and the difference between the con means "he is the Yasa expert.""' Ibn Khaldun has also ceptofthe GreatYasa and that ofthe Siyasah Shari'iyyah been reported to have written "al-Siyasah al-Kabirah" in extends. It will also be tried to analyse as to why the term an address to the GreatYasa ofGenghis Khan."** Ayalon SiyasahShari'iyyah is more well known in contemporary provides another example. In the biography of Amir Muslim society compared to the Yasa. Utamish (or Aytmish), Ibn Taghribirdi, says Ayalon, Based on our discussion in the previous sections, writes about the Amir: "kana yahkumu...bilsiyasa wal- it is clear that the term Yasa originated in the Mongol yasaq": This statement, according to Ibn Taghribirdi's Empire (Mongolian language) which later was also used own admission, is copied from Kalil b. Aybak al-Safadi in the areas in which the influence ofMongol Empire was in which the originalstatementis "kanayahkumubil-yasa significant. Contraryto this, the originofthe term Siyasah wal-yasaq."^^^ On the contrary, there is no evidence is somewhat questionable. Some scholars such as al- whatsoever that term Yasa is used in an address to the Maqrizi and Ibn Taghribirdi have the opinion that the term Siyasah. term Siyasah came from the term Yasaofthe Mongols.'^' The meaning of both the Great Yasa and the This view, however, is not conclusive in itself. Ayalon, Siyasah Shar'yyah is quite interesting to discuss here. though he tries to explain the origin of the term Siyasah There is a strong indication that both have a similar based on al-Maqrizi and Ibn Taghribirdi works, dbes not meaning, that is: the right of the govermment (political come to a clear point on the issue. Bemard Lewis and authority) to issue rules (laws) aiming at organizing its Fauzi M. Najjar, on the other hand, have tried to make us people in order to make their social life possible. The believe that the origin of the terms Siyasah is Arabic; nonetheless, Lewis seems to feel doubtful about the issue 111). See pp. 4-6 above and finalizes his explanation, saying that "the root of the 112). Lewis, " Siyasa," 3. term siyasah itself is probably ofnon-Semitic origin."^'^ 113).David Ayalon, "TheGreat Yasa of ChingizKhan" (B), In short, it islikelyto be true to infer that, unlike the origin studio Islainica34 (1971): 178-9. See also his "TheGreat Yasa " (C2), 116 of the term Yasa, the origin of the term Siyasah is still 114).AyaIon, "The Great Yasa" (C2). 118 debatable. 115). Ibid., 116 36 Akhmad Minhaji,The Great Yasa and The Siyasah Shari'iyyah Great Yasa of Genghis Khan for example, has been the Shari'ah mles, and (2) the provision oflaw based on reported as being the codification of certain rules laid the doctrine of the Siyasah Shar'iyyah sometimes appar down bya Genghis Khan which should be followed by his ently contradicted the provision of the Shari'ah. people and also by his successors. In the case of the In the case of the Ottoman Empire, for example, Siyasah Shari'iyyah, it is also clearthat the term was, and Suleyman the Magnificenthas been reported to have said is, used to give right to the political authority to issue any that this his qanun-names (the law based on the concept rules for its people. Coulson points out, forexample, that of the Siyasah Shar'iyyah) was not aimed at abrogating even though "the political authority has no legislative nor contradicting the Shari'ah but "supplemented it by power to modify orsupersede the Shari'ah. it nevertheles religiously indifferent regulations."*'^ On another occa hasthe power, ad indeed theduty, to makesupplementary sion, Shaykh al-Islam Abul Su'ud was also reported to administrative regulations to effect the smooth adminis have said: "there can be no decree ofthe Sultan ordering tration of law in general.""' According to Ibn Qayyim, something that is illegal in the view of the shari'a {na the Siyasah Shar'iyyah gives an opportunity to the ruler mesru' olan nesneye emr-i sultani o/maz)."*" to issue law which "comprises all measures that bring the Moreover, because ofpublic interest {maslahah), people close to wellbeing (salah) and move them further the doctrine ofSiyasah Shar'iyyah gives an opportunity away from corruption (fasad), even if no authority is to the administrative power to promulgate certain rules found for them in divine revelation and the Sunnah ofthe Prophet.""®In short, both the GreatYasa and the Siyasah Shar'iyyahseem to be addressed to the political aouthority of a government in relation to, among others, the enact 116). See p. 5 above ment of law. 117). NoelJ. Coulson, "The Concept ofProgress and Islamic A significant point should be addressed here. Hav Law ", in Religion andProgress in ModernAsia, ed. Robert N. Bellah ing looked at the date when the Siyasah was understood (New York : The Free Press, 1965), 85 See also his A History of Islamic Law (Edinburgh : Edinburgh University Press, 1990), 172 : as criminal law or punishment (since the fourteeth cen J.N.D. Anderson and N J. Coulson, "Modernization: Islamic Law in tury), one may inferthat the date was closely linked to the Norlherm Africa : Islam and Modernization, ed M. Brett (London : period of the promulgation ofthe-Great Yasa and also the Frank Cass, 1973), 74; J.N.D. anderson, " Modern Trend in Islam : period of the spreading out of the temi Yasa as a legal Legal Reform and Modernization inthe MidleEssl,"Internationaland code in the areas in which the influence of the Mongol comparitiveLawQuariely20(l97iyA, 13this "Law as a Social Force in Islamic Culture and'History," Bulletin oftheschool ofOriental and Empire was very significant. Thus, it could be easy to African Studies 20 (1957): 26; his "The Significance of Islamic Law understand that the lenn Siyasah was begun to be un in the World Today," The American Journal of Comparative Law 9 derstood as a legal code, or criminal law. And, it was in (1960): 192. this period that the Yasa seemed to be intertwined with 118). Mohammad Hashim Kamali, Priciple ofIslamicJuris prudence (Cambridge : Islamic Texts Society, 1991), 271.* the term Siyasah."^ 119). According to Turkish-English dictionary, the meaning George Vemadsky provides an interisling point of Yasa or Yasak is : law, regulation,rule, prohibition, punishment, about the concept ofthe Great Yasa which is, as we shall interdict, forbiddeen, prohibilited (see Abbas Aryanpur-Kashani & see, similar to that ofthe Siayasah shar'iyyah. Vemadsky Manoocheha Aryanur Kashani, The Concise Persian-English Dic tionary, Tehran: AmirKabirPublication, 1986,1428; A.D. Alderson asserts that the Great Yasa is not" a mere codification of and Fahir Iz, The Qjford Turkish-English Dictionary, third edition, the customary laws ofthe Mongol tribes," but rather the Oxford: Clarendon Press, 19^5,503 :New RedhouseTurkish-English law promulgated by the great Genghis Khan, aimed at Dictionary, Istanbul: Redhouse Press, 1968,1244-5; F. Steingass, A supplementing the Mongol traditional laws."® Vemdsky Comprehensive Persian-English Dictionary, London Roulledge & emphasizes this point, suggesting that the principles of Kegal Paul, 1984, 1526, 1531). 120). Vemadsky, "The Scope and Contents, " 359-60 the GreatYasa "were intended to fill the gaps incustomary 121). Ibid., 360 lawor, as in thecase ofcriminal law, to replace traditional 122). Haider, " Mongol Tradition, " 65-6. customs with new ordinances.""* No one will be sur 123). Juvaini, The World-Conqueror,25. prising therefore if a largenumberofthe ordinances in the 124). Schaht, Introduction, 90. See also his "Problems ofModem Islamic Legislation,"Studialslamica\2{l960): 102;J.N.D. Great Yasa "are original based on Chingiz's conception Anderson, "The Adaptation of Muslim Law in sub Saharan Africa," of what was good and right forhis state and his people,"*" in African Law : Adaptation and Development, ed H. Kuper and L. and he he modified or abolished certain customary laws Kuper (Berkeley: University of California Press, 1968), 151. ofthe Mongols which, in his opinion, were not in accord 125). Heyd, Kanun andShari'a, 9 For the same view thar the ance with the new deinand.*" It is on this point that the Qanun wassupplemented toand notcontradictid with theprovisionof Shari'ah, see Halil Inalcik, The Ottoman Empire, trans, Norman concept of the Great Yasa is, as will be shown later, Itzkowitz and Colin Imber (London: Weidenfeld and Nicoson 1975), similar to that ofthe Siyasah Shar'iyyah, in the sense that 71; H.A.R. Gibb andHarold Bowen, IslamicSocietyandthe West,vol. :(1) the Siyasah Shar'iyyah is considered a supplementto one part one (Oxford: Oxford University Press, 1951), 23. 37 UNISIA No. 29 TAHUN XVI TRIWULAN I- 1996 which apparently contradicted the Shari'ah.'^^ The fol should be bom in mind however that what was consid lowing case of the Ottoman Empire is a clear example in ered good and bad forthe MongolEmpiremostly depended point.
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