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. on GenghisKhan'sconsiderations.This isclearly different According to the Ottoman authorities, the enact from that of theSiyasah Shar'iyyah is claimed to be based ment of the Qanunwas not aimed at replacing the Shari'ah on the divine ordinance laid down in the Qur'an and the as the main source of law for the Ottoman Empire. With hadith (the tradition of the Prophet Muhammad), and the passage of time however the situation changed con quite significantly the ijtihadof the Muslim scholars. In siderably. The Qanun. which at first had been limited to addition to this, it would not be an exaggeration to point areas outside the Shari'ah, began to penetrate those areas out herethat,unlike the GreatYasa,theSiyasah Shar'iyyah which, according to some religious groups, belong to the is continously used in any Muslim society, and regarded Shari'ah. It would be useful here to cite some significant as an important subject in the study of Islamic law. examples of the issue, as fellows. Thelastpartofthis section will discuss the issue of Gabrial Baer indicates that there had been impor why the term Siyasah Syar'iyyah is more well known tant regulations which "had been largely outside the instead of the Great Yasa in contemporary Muslim soci shari'ah and thejurisdiction ofthet/a^i/s."'"Criminal law, ety. To answerthis problem, Saunders' viewpoint is quite according to him, was the main example ofsuch regula significant to be mentioned here. Having compared the tions. Its mostimportant contribution, Heyd points out, achievements of the Muslim (Arab) Empire and the was "the imposition of a fine ... upon criminals liable to Mongol Empire, Saundersis of theopinionthat, compared the fixed penelties (hudud)" such as for fornication, to the Mongol, the Arab Muslim is more successful in homicide, and for certain cases of theft. The taking of establishing agreat empire. Certain factors, says Saunders. interest (riba) up to a certain rate was another example of have supported this fact, and he has produced a lony Qanun which was considered contradictory to the pro discussion on the issue, some of which are the vision of Shari'ah.It also happened that in case of a following: murder which occurred in the Palace, the Sultan was The historian who isstruckby the comparison between authorized toexcute themurdererat once without strictly the Arab conquests of the seventh century and the following the procedure fixed by Shari'ahJ^' It is not an Mongol conquests ofthe thirteenth, may be surprised exaggerationtherefore thatAndersonasserts: the doctrine at the failure of the latter to issue in the creation of a of Siyasah Shari'iyyah "allowed the ruler to go well new civilization. Ifthe Arabs, like the Mongols, were beyond the strict dictates of the prescribed doctrine in illiterate barbarians when they embarked on the whathe regarded as the public interest." Consequently, the provision ofIslamic law is far removed from the rigid regulations contained in the classical texts ofall the well known schools of Islamic law.'^^ More than this, it has , 126). J.N.D. andcrson and N.J. Coulson, "The Moslem Ruler and Contractual Obligations," New York University Law Review 33 often been said that "commands and prohibitions applica (1958): 929. ble to Arabia ofthe first century ofhijra need not always 127). Gabrial Baer, "The Transition from the Traditional to be regarded as literally binding today."''^ Interestingly WesternCriminal LawinTurkeyandEgypt,"5'turfw/5/flmic<245 (1977) enough is the statement of Al-Nowaihi, as follows : : 149. see also Heyd, Criminal Juslice.l. 128). Baer,'Transition," 149. see also Hertert J. Liesbesny, all tlie injuctions on the secular affairs which arc "ImpactofWesternLawintheCountriesoftheNearEast,"TheGeorge made in the Qur'an and the Sunnah were no more WashinglhonLaw Review22 (1953): 127-8. than temporary provision meant for the Arabs ofthe 129). Heyd, Studies, 181 time of the Prophet alone and not intended to be 130). Ibid., 182 everlasting and unalterable. All the findings of the 131). Heyd, Kanun and shari'a, 12-3 132). J.N.D. Anderson, Law Reform in the Modern World . ancient 'imams were the opinions of human beings (London : The Athlone Press, 1976), 12 See also Noel J. Coulson, who did theirbestin their limiting circumstances and "The State and the Individual in Islamic Law," International and who neither were infallible nor claimed infallibility. Comparative Law Quarterly 6 (1957), 51. Coulson also points out Consequently, all the decisions ofthe classicalshari'a that, accordingto Farhum, the doctrineof Siyasah has six purposes: "theprotectionof life,lineage,mindcharacterand propherty,and the must be amenable to change. elimination of any' corruption'". We turn our discussion now to the issue of the 133). Anderson, Law Reform, 187. difference between the Great Yasa and the Siyasah 134).J.N.D. Aderson,"Shari'aToday,"yourna/ofCompara Shari'iyy^.Themostcleardifference between the two is- tive Legislation and International Law "il {\9A9): 25 concerned with theirsources. The Great Yasa of Genghis 135).MohammedAl-Nowaihi,"ReligionandModernization : TheGeneral Problem andIslamic Responses, " inModernization : Khan was generally based on the tradition of Mongolian The Humanist Response to its Promise and Problems, ed Richard L. society enacted through the order of Genghis Khan. It Rubenstein (Washington : Paragon House, 1982), 337

38 Akhmad Minhaji,The Great Yasa and The Siyasah Shari'iyyah

building of an empire that eventually stretched from the subject people became manifest"''"' Some evidences Spain to India, they speedily educated themselves in ofthese borrowings have been recorded by Barthold, one the schools of the Greeks and Syrians, and later the ofwhich was the use ofthe Uighurscript as an important Persians, and the philosophical and scientifictreatises language of theofficial necessity ofthe MongolEmpire.'"*' that were composed in the Arabic language in Bagh There is another reason as to why the Siyasah dad and Samarkand, Cairo and Cordova, carried the Shar'iyyah is more well known than the Yasa in contem human mind to new heights, while the gracefuldomes porary Muslim society. It has often been said that the and minarets ofmosques and colleges transformed the Shari'ah seen as religious law based on the divine will of skyline ofeastern cities. The Mongols totally failed to God. The Yasa (or, in the case of Ottoman Empire, match this achievcmnct. Thciroriginal barbarism was Qanun), on the other hand, is claimed as merely the indeed softened by example of their bctter-educalcd manmade law. Consequently, it was considered "secu neighbours and subjects; their leaders acquired a lar." It was also a fact that the mle of the Yasa or Qanun tincture of letters; the culture of China and Persia in (as secular law) was often confronted with the rule ofthe partcular left its impress upon them, but the Mongol so-called religious law, Shari'ah. In this situation, it language never became the vehicle of sophisticated seems to be-reasonable if some people absorbed the literature, nor was it widely propagated beyond its religious law instead ofthe secular law due to the reason first homeland and itwas easilydefeated in cimpetition that the religious law is better than the secular one. For with Persian and UighurTurkish. The failure ofMon this reason, it is understandable that the term Siyasah gol to rise to the level of Arabic may be attributed to based on the religious ordinance is preferred instead of the fact that the Mongol Empire was created by a the Yasa (Qanun) as secular law. Consequently, the tenn soldier and legislator whereas the Arab Empire was Siyasah is, in the long mn, preferred over the Yasa. created by a prophet Whenever Islam was estab Nontheless, it is important to underline here that lished, Arabic inevitably followed and grew into a the problem is not so simple. The tenn Shari'ah, which universal tongue, understood if not spoken by Turks was contradicted with the Yasa or Qanun, was limited to and Berbers, Persian and Indians.'^® If Arabic repre the understanding ofcertain scholars and not Shari'ah in sented the Law and tlie Prophet, Mongol represented its general meaning; In order to have a more clearunder the Law only, and though the Yasa was venerated as standing about the issue, it seems to be worth while to the bequestofChingis to his people, no Bible or Koran observe the historical fact during, for example, the Otto was composed in his language, which thus could man Empire. claim no special status as the speech of heaven.'" During the period of the Ottoman Empire, there Thus, it is not surprising therefore that the Siyasali were at least two sources of law : Shari'ah and Qanun Shar'iyyah claimed as originating in the Muslim Empire (which is, in principle, the same as the Yasa). While is very dominat in contemporary Muslim society. As a Shari'ah was claimed as the religious law, Qanun was consequence of what Saunders has discussed, the origi claimed as the secular law based on, among otherimpor nal concept ofShari'ah laid down in both the Qur'an and tant things, the will of the Sultan and his custom. The the Sunnah of Prophet Muhammad and also quite a difference and the contradiction between the two are number of the kitab al-fiqh written by the famous always emphasized in the historical record. Some ex scholars in the circle of the four orthodox schools, are amples ofthis contradiction have been pointed out in the well preserved until the presenttime. This is howevernot previous section. the caseforthe GreatYasa. Thoughmostmodem scholars . It is not much understood however that the term agree that the Great Yasa was positively enacted by Shari'ah in the eyes of the Ottoman authorities likely Genghis Khan, non of them has ever been fortunate referred to the viewpoints of the four famous orthodox enough to look at a complete written document as an original text ofthe Great Yasa. The analysis ofthe Great .Yasa in the present time is based mostly on secondary 136). Saiiiiders also emphasize his view elsewhere, saying sources only.'" thai "Arabic acted as the linguafranca of scholarship and lettersover a wide segment of the globe from Spain to Transoxiana" (see his Barthold shares a similarview to that ofSaunders Mongol Conquests, 186). in tenns of the weakness ofthe Mongols. The Mongols, 137). Ibid., 189-90 says Barthold, "were undoubtedly on a very low cultural 138).SeePoliak, "Cingiz-Khann's Yasa," 863-4; Vemadsky, plane even compared to their fellow-tribes, the Keraits- "Scope and Contents," 337; David Morgan, The Mongols, 98 and Naimans."'" As a result, "immediately after the 139). Barthold. Turkestan, 386. 140). Ibid. unification of Mongolia, and before the subjugation of 141). Ibid.. 387. See also Haider, "Mongol Tradition," 75-6. the cultured provinces, the necessity of borrowing from 142). See pp. 35-6 above.

39 UNISIA No. 29 TAHUN XVITRIWULAN I- 1996 madhahib, and more specifically to the Hanafi madhhab. tion (al-sunnah al-muttaba'ah) dealing with the local For example, it was written in the introduction to the legal problem.'^' The system of taxation, the treatment of qanunname for Candia that "the land ofthe island to be tolerated religions, and the institution ofwaqfzxQ some registered according to the rules of the seriat as set out in examples of institution and/or. legal practice which- the books ofy/^/i.""^ This statementclearly shows us that originated from the conquered areas, praticularly those themeaningofthe term seriat (Shari'ah) was addressed to formerly in the Christian Roman Empire.'^^ If the local the certain interpretation of a certain school concerning custom is considered as one important parts of the the provision of Islamic law which was written in the promulgation oflaw in Islam since early times, one may leg^ book, ftqh. For this reason, it would be safe to question as to why Yasa, Qanun and the like were not pindown that if there is a contradiciton between the considered a part of the Shari'ah, or why they were provisioii of.Shari'ah.and the provision of Qanun, it intentionally contradicted to the Shari'ah. One of the should .be rightfully understood that the conflict was answers of this problem seems as follows. The Qanun, as truely between Qanun on the one hand and Shari'ah has been generallyloiown, originated in the culture ofthe which was limited to the understanding of the orthodox Ottoman people, in an area outside Arab culture. The (Hanafi) madhhab^ and not Shari'ah in its general term Arab has often been wrongly understood as equal meaning. Or it could also be understood that the conflict with the term Islam. "To put it differently, there .was a was between the Shari'ah as understood by the Ottoman tendency to put the Arab as the "owner" of Islam. The authorities basedonthedoctrineoftheSiyasahShar'iyyah discussion of Islam, consequently, was mostly addressed and the Shari'ahas understood by the 'ulama'ofthe Hanafi to the Arab countries. Non-Arab countries, on the other madhhab written down in the books offiqh. hand, seemed to be considered peripheral. It is in this Moreover, the process of secularization which context that Hourani's statement, as follows, could be took place overtime in the Ottoman Empire has made the understood properly: issue more complex. Based on the Christian experience, In writing about the 19th and 20th centuries, we the process ofsecularization has traditionally been seen should never forget the Ottoman impact: the lasting as a conflict "betweeii the religion (Shari'ah) and the influence of those countries when most Arab coun world (Qanun)"'"" This was not the case in Turkey or in tries, and many others, were incorporated into the last other Musliin countries.. The problem faced by those Muslim countries was (and still is) notthe conflictbetween religious teaching (Shari'ah) and world affairs (Qanun),, 143). Richard C. Repp, "Qanun and Shari'a in Ottoman butrather "between the whole value system oftraditional Context," xnlslamicLaw :SocialandHistoricalConiexts,td. Azizal- Islamic society on the one hand and the encroaching Azmeh (London : Routledge, 1988), 132-3. 144). Niyazi Berkes, The Developmenl of Secularization in process of modernization on the other." Turkey (Montreal: McGillUniversityPress, I964), 6. One of the crucial problems of the above issue 145). Halil Inalcik, "On the SecularizationinTurkey," review concerns the position of local tradition relating to the oiThe Development ofSecularizationinTurkey,by NiyaziBerkes,in promulgation of Islamic law, Shari'ah. It seems to be fair Orientalistische Literalurzeitung 9/10 (September/October, 1969), to say that the policy to make the local custom a source of 433. See also al-Nowaihi, "Islamic Responses," 309. 146). See H.A.R. Gibb, Muhammedanism, second edition law for Muslim ruler, even since Muhammad's period. (Oxford : Oxford University Press, 1962), 73-4. One historical fact his indicated, for instance, that pre- 147). James Hawting, Encyclopedia ofReligion and Ethics Islamic Arab tradition formed a large part of both the (New York : Charles Scribner's Sons, 1955), s.v. "Arabs (Ancient)," source and the subject-matterofIslamiclaw, theShari'ah. by TH. Noldeke. 148).MirceaEUade, ed. TheEncyclopediaofReligion(London The concept ofsunnah,^*^ the important position of the :Macmillan Publishing Company, 1987),s.v. "walayah,"byHermann hakam,^*'' the law inheritance,'"" and zihar,^*^ to some Landolt. • extent, are clearly derived from pre-Islamic Arab tradi 149). See Asaf A. A. Fyzee, Outlines ofMuhammadan Law, tion. second edition (Oxford ; Oxford University Press, 1955), 137-8. The adoption ofthe local tradition as a significant 150). Muhammad Hamidullah, "Sources of Islamic Law-A New Approach," The Islamic Quarterly 1 (1954): 207. element oflaw in Islam was also a common practice on 151). D.S. MargoHoiith, "Omar's Instruction to the Kadi," thepartofthesecondCaliph,'UmarIbnKhattab. Accord Journal of the RoyalAsiatic Society (1910): 307-26. For a discussion ing to hamidullah, 'Umar "had ordered his lieutenents to on the same issue, see'R.B. Serjeant, "The Caliph Xlmar's Letters to conserve almostthe entire legal system ofthe conquered Abu Musa al-Ash'ari aind Mu'awiya," Jourruil ofSemitic Studies 29 countries with regard at least to land revenue, in Iraq for- (1984): 65-79. 152). Schacht, An Introduciion, 19. See also F.E. Peters, instance."'^^ Margoliouth presents a critical study of Children of Abraham : Judaism, Christianity, Islam (Princeton : 'Umar's letterto Abu Musa al-'Ash'ari (a QadiofBasrah) Princeton University Press, 1984), 92 ; Al-Nowaihi, "Islamic Re which contains an instruction to use the prevailing tradi sponses," 334-5.

40 AKhmad Minhaji, The Great Yasa and The Siyasah Shari'iyyah

great empire of Islam. In the past it was easy to forget To support his idea that the objective goal of the it... We are all aware now of the importance of the marriage in Islam is monogamous, Rahman looks atthe Ottoman centuries. The Ottoman created and main socio-historical background during the early period of tained not only a lasting and effective structure of Islam. Rahman contends, for example, that polygamy- government and administration, but an area of free was a common practice in Arab society. Also, it is well trade within which commercial exchanges were com known that the early politico-military development in paratively easy; within this area there flourished a Islam, and the rapid conquest of territory during this distinctive urban society, not only in Istanbul but in period had created certain problems, including a dispro the great provincial centers, and a system oftaxation portionate numberofslaves and widows among Muslim and control oflandunderwhichagricultural production society. Under these circumstances, says Rahman, it is could'be carried on.'" not surprising that the Qufanpermits polygamyas one of Back to the point, it is reasonable that the Yasa or Qanun, the ways to solve the problem.'®® He concludes that the the non-Arab culture, was not included as a part of permission for polygamy should be regarded as being Shari'ah;^thus, it was considered "strange." temporaiy and yet "the long-range overall objective of Nontheless, there is a growing consciousness the Qufanthus remained monogamy."'®' According to among some contemporary Muslims to return to the Rahman, "the problem ofpolygamy looks to be parallel example ofthe early concept of the law in Islam in which to the problemof slavery."'®^ Althoughthe Qur'anspeaks local custom, regardless of area and Culture,should play about slavery, this does not mean that Muslims are a decisive role in the promulgationofthe Islamiclaw.The encouraged to have slaves. The Qur'anic injunction of following thesis of Fazlur Rahman, which has been slavery was one of the ways to solve the problems widely discussed among Muslims (e.g. in Indonesia), is surrounding the issue of slavery, which was a common of much importance in elucidating the issue. practice in Arab society.'®^ To solve any problem faced by Muslim society, . Having understood Rahman's viewpoint, one may Rahman introduces a thesis which he calls "a couble conclude that the local custom of any Muslim country movement." This thesis, according to him, is a process of should be considered as one of the important sources interpretation concerning the Islamic teaching in relation dealing with the legal problem in Islam, and should play to the social problem of Muslim society. The thesis consists oftwo movements, "from the present situation to Qur'anic times, then bac to the present"'" Ther firts 153). Albert Hourani, "How Should We Write the History of movement is divided into two steps. First, one must the Middle East," Internalional Journal ofMiddle East Studies 23 understand the exactmeaning ofthe specific given text in (1991): 129. the Qufan. In doing so, he must examine any social 154). Fazlur Rahman, Islam and Modernity (Chicago : The circumstances in which the text was given. The second University of Chicago Press, 1984), 5. 155). Ibid., 6. step is to generalize the specific answer of the Qur'anic 156). Ibid., 7. text, combined together with other specific answers of 157). Ibid. the Qur'anic texts, and fonnulate them "as statements of 158). "Give unto orphans their wealth. Exchange not the good general moral-sicial objectives."'" In other words, the for the bad (in your management thereoO nor absorb their wealth into your own wealth. Lo! that would be a great sin. And if you fear that first movement of the proces ofinterpretation is a move you will not deal fairly by the orphans, marry ofthe women, who seem ment "from the specifics ofthe Qufan to the eliciting and good to you, two or three of four; and if you fear that you can not do systematizing of its general principles, values, and long- justice (to so many) then one (only) or (the captives) that your right rangeobjectives."'*'^The second movement is the oppo hands possess. Thus it is more likely that you will not do injustice" (Mohammed Marmaduke' Pickthall, The Meaning of the Glorious site of the first one. While the movement is an Koran, Ontario : Penguin Books, n.d.). inductive process, the second one is a deductive process,. 159). Fazlur Rahman, "The Status of Women in Islam :A that is: one must articulate Ihu ;?enefal principle, as the Modernist Interpreation," in Separate World : Studies of Purdah in result ofthe first movement, into a specific view in order South Asia, eds, Hanna Papanek & Gail Minault (Delhi: Kay Kay to answerthe real problem faced by the Muslim society.'" Printers, 1982), 301. See also his "A Survey of Modernization of The rule ofmarriage in Islam is one ofthe popular MnslimPamWyhav/," InternationalJournalofMiddle East Studies! (1980): 452. examples by Rahman. Rahman clearly states that the 160). Ibid. See also his Islam, 29. ideal form of marriage in Islam is monogamous. By 161). Rahman, "Status of Women," 301. See also Majid referrin/' to the Qufan surat al-Nisa 3-4,'"Rahman links • Khadduri, "Marriage in Islamic Law : The Modernist Viewpoints," the practice ofpolygamy with the reatment of orphans. The American Journal ofComparative Law 26 (1978); 217. 162). Rahman, "Status of Women," 302. See also his "Mod The permission of polygamy, says Rahman, "has to do ernization," 452. only with orphan women, and not women in general."'^® 163). Ibid.

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