KITAB AL-HIYAL

IN THE POLITICAL PHILOSOPHY OF THE UMMAH

UNINTERRUPTED degeneration of the Muslim Polity to an absolute despotism and rapid growth, in its wake, of an urbanite civilization with Byzantine and Sasanian mores, grafted on the raw-feel of tribalism, vain glories of the militant aristocracy surrounded by hordes of Mawalis, slaves and attendants affecting a basic metamorphosis in the community organization of the Ummah in opposition to the world-view inherent in the Quran and actuated by the Sunnah of the prophet, put an unprecedented strain on the theologico-juristic thought of the Muslim World. Before, the stabilization of the juristic schools, which could not take place earlier than the advent of the Abbasids, theological innovations of various types served the purposes of the Umayyads. In support, traditions were amassed to show that nothing was happening which was not, indeed, predicted by the Apostle and therefore was irreversible ; the people were advised cynic resignation during the periods of troub e (fitna); and severe polemics were launched against the upholders of free will and human responsibility. But the discontent of the masses remained unabated, often bursting out in anti-Umayyad movements every now and then. At last, the Abbasids appeared. They rewarded their supporters by consolidating themselves into a hereditary monarchy under the sacred name of Khilafat. Meanwhile, juristic thought of the Ummah assumed a definite shape. The Abbasid rulers extended their patronage to the Fuqaha and declared the Shariah as the main pivot of their government. Those who refused to accept the Abbasid power like Malik or refused co-operation with their administration like Abu Hanifa were sternly dealt with. The jurists as a class fell in line with the Abbasids. Cahen faithfully reproduces the whole picture, when he says, "The Fuqaha were always more interested in the duties of the cult, in private law, in penal law than in public law and in the organizing and functioning of the administration and the character of its heads. These were things upon which it was prudent not to discourse too much if one did not want to incur some bitter disgrace. . . . The problem which faced the jurists attached to the Abbasids, then, was not to derive the ideal Muslim government from the tradition a priori, but rather to institute a very loose filtering, which should permit, at the price of some retouching or else at the price of a few wiles of a few suggested reforms, the bestowal upon the regime as a whole of its certificate of 'Good Muslim.' "[1] In the course of time, a number of juristic devices were contrived whereby the existing rule, in spite of its deep-seated contradiction with the fundamentals of Islam, could still be pronounced as the legitimate khilafat or its rightful heir in true continuity with the state founded under the guidance of the prophet and his companions. As a consequence of this juristic activity, a literature came into existence, which may now be collected together as the "Kitab al-Hiyal in the political philosophy of the Ummah."

A Hila is a technical device which aims at a via-media through the legal difficulties for a particular purpose. As the Ummah departed from the social provisions of Islam and the ethos of the Mcdinite State, by drifting into the Roman and Persian conventions of public dealings, commerce, trade, agriculture, business, monetary and fiscal policy, mere generalizations from the Sunnah of the righteous companions and earlier generations did not suffice the change. The new order of compromise required growth of contrivances to tide over the mounting cleavage that was rapidly growing between the rule of the Shariah and the actual patterning of its system. On occasions, several kinds of juristic pretexts were innovated and put into currency with the main purpose of harmonizing the canonical requirements of Islam with the development of a particular measure in a definite situation. Their bewildering growth was so much alarming that the entire Shariah stood under the peril of complete betrayal. Consequently, those religious scholars and jurists to whom the perseverance of the Shariah was more dear than other ephemeral gains, waged wars against the practice of Hiyal. But, no battle was waged against those pretexts which were supporting the un-Islamic civic configuration of the Ummah, its public offices, its administration of the public treasury, its military junta, its scale of prestige and hierarchy of privileges and opportunities, in short its entire civilization. "The Abbasid rulers maintained a firm grip on the helm, and the Sharia courts never attained that position of supreme judicial authority independent of political control which would have provided the only sure foundation and real guarantee for the idea of the Civitas Dei."[2] C_onse_quently, make-shifts of the Hiyal in marriage inheritance, and ordinary business dealings were the main targets of fuqaha while the juristic thought continued to make adjustment with every rising Emarah, dynastic rule and rise of dominions even within the realm of the so-called Khilafah. Their quick solutions and pretexts for the shar’i legalization of the ever-changing state of affairs led the people to mass apathy, collective submissiveness and political quietism. "The Medieval Muslim is not a citizen in the Greek or the post Rennaissance sense of the word. The vicissitude of the government are his concern only when faith is at war with unbelief. He assumes no responsibility for civic or social betterment beyond defraying his canonical obligations to the authorities and to his fellow-men. He is frequently impatient with his rulers and thinks little of rioting, but on the whole he is content to let the princes play their game."[3]

Ibn Qayyam al-Jawziyya is the first jurist of high stature in the history of Islam, whose most systamatic exposition of the problem of Hiyal surpassed all earlier sporadic efforts of its kind, though, as usual, with very-limited application, at least not touching the fringes of the socio-political problem. But the generalizations wrought in his analysis are however significantly relevant and equally applicable to the legal devices containing political content. "Flow is it possible," he remarked, "that the Hiyal make the forbidden permissible, abrogate the obligations and wipe out the rights which, having basis in the interests of mankind, can be realized only by observance of the Shariah."[4] His remarks levy a strenuous demand and impose a precise limit on the validity of the Shar'i devices and legal contrivances. Ibn Qayyam is not against legal via medias. Creative juristic activity is essentially a developing process which encounters novel situations by devising new means of passing through them, but genuine legal innovation, instead of striking at the interests which arc protected under the legal system, preserves and consolidates them. At times, instead of true creations, shallow inventories however, take place that plague the societies and undermine the normativeness of their legal order, loosen the moral fibre and gradually disintegrate the ideal image that inspires their members and keeps them to the axiological base of their collective life.

Ibn Qayyam's refutation of the deductive validity and canonial reasoning of the illicit Hiyal is based on the sense of values, which led him to the premiss that prohibition and permission arc intrinsic and inherent characteristics of activities; they cannot be arbitrarily affirmed or denied, added to or withdrawn. Consequently, no Hila which permits a prohibited activity, or prohibits a permissible activity is a valid construct. In other words, values are real without being affected by their deduction, affirmation or denial. By propounding the premises of Valuational Realism, Ibn Qayyam gave, indeed, a new foundation to the Muslim Culture, to its jurisprudence, to its conception of divinity which in its theoretic formalization was debased to irrationalism under the pull of the Medieval Theology to which Al-Ghazali made no less a contribution. By exaggerating the principle of volition to the extremities of Nihilism, this theology emasculates moral consciousness. Its notion of divinity is a mere generalization of a despot whose will is absolute, infinite, independent of every principle. There is no worth in itself, and there is no evil in itself ; both good and evil are expressions of mere likes and dislikes dependent on its pleasures. The ground of the Sharia is not therefore laid in the intrinsic worthiness of its prescribed manners, rules and devices, but in the arbitration of the will of God, the absolute sovereign of the universe. The expounders of this theology contested the concept of justice as a condition of Divine activity, not on the ground of Divine Mercy which the upholders of Divine Justice neglected, but on the ground of Divine Activity.[5] Thus, obliterated from the idea of values-in-themselves, Shariah was taken as a mere set of yes and nos stipulated by the Divine Ruler.[6] Consequently, the inventor of legal measures could not feel himself bound to any value, or moral consideration. His only concern was dexterity of juristic reasoning which had to play the see-saw game through the maze of Divine coercions. "They had to calculate the chances of legal validity to a nicety if the Qadi, who was bound to the sacred law, was not to upset the real effects of the business transaction, which their customers, the merchants, had in mind, effects which depended upon the validity of every single element in an often complicated series of legal transactions."[7] This tendency to stick to the form of the law and devise means for any end without a feeling of guilt whatsoever was accentuated, if not caused, by the irrational theology that had deeply vitiated the growth of the Muslim thought.

Ibn Qayyam's dictum that actions have their own beauty and ugliness, amounts to a reshaping of outlook by severance of connection with the despot-like concept of Divinity, that had seized the minds of the Muslim people ever since the rise of the Umayyads and gradually perfected to a neat and clear theological doctrine by Abu'l Hasan Ashari, Abu Hamid Ghazali and mystics of various orders. The formidable insight of Ibn Qayyam led him to conclude that "the Shar‘i-stipulations are made incumbant because of their intrinsic worthiness... the reason behind the prohibited (things) is their own ugliness. When the manufacturing of hila is carried over to strangulate the stipulations and ease the prohibitions, the intrinsic beauty or ugliness inhering in them is not thereby scrapped. Consequently, when there is no change in the beauty and ugliness, there could be no change in the judgement relating to them. When a pretext is fabricated to commit a prohibited act, though the form of fabrication may be of that of a permissible act, yet in its end as well as in nature, the act will remain prohibited, there is no form to permit it and never will be the effects of validation occupy it. Consequently, it will be void. "[8] On these permises, Ibn Qayyam works out a universal principle which applies to the evolution of the Shariah. He says that all those juristic innovations are unlawful from the Islamic point of view, which are designed to open the door for the prohibitions, in spite of the prohibitory characteristics which appertain to them, or cause loosening of the compulsory things in spite of the element of necessity (present in their characteristics)."[9]

This universal law has no restrictive limits. Equally does it contain in its purview the development of constitutional theory in Islam as it contains the private law and penal jurisdiction. Consequently, the juristic activity involved in the evolution of the socio-political thought of the Ummah needs be examined.

II

Orientialists like Arnold, Schacht, MacDonald, Rosenthal, etc., start the constitutional theory of Islam with Al-Mawardi, Tahir Baghdadi and Ibn Qutaiba. Historically it has a far earlier origin. There was a clear vision of the nature of the political aspect of the Community and its theoretic exposition during the first century, even though the Khilafah was transformed into a Mulk by Muawiya, a process which attained completion with the arrival of the Abbasids. Some of the members of the Umayyad dynasty themselves gave expression to the collective voice and judgement of the Ummah on the problem, while Abu Yusuf, al-Mawardi and Ibn Jamah simply developed constitutional hiyal, not juristic theory of the political organization of Islam. Muawiya II, nominated by his father Yazid, the son of Muawiya, succeeded to the office of the 'Chief of the faithfuls' in 64/683. After a rule of three months and one day, he summoned the people and spoke, "I do not possess the strength to bear the burden of the rulership. I had wished that I should, following Abu Bakr, nominate some one as my successor or following Umar I should nominate six men to elect by consultation any one from among themselves, but I have failed to find out a man like Umar and I have also failed to find out six men of that category. Hence I vacate this office and you may elect anyone you like as your Khalifa."[10] This illustrious grandson of Muawiya squarely met, in this declaration at practical level, the Umayyad's agrument of succession by nomination and enunciated the constitutional principle inherent in the foundation of the Khilafat al-Nabi. He asked the people to elect their Chief, the successor of the Prophet. But, the powerful Umayyads foiled his intents, and enthroned Marvan. Abdul Malik, Valid, Sulaiman, succeeded one after the other in the dynastic line on the principle of nomination by the ruling Sovereign. Umar bin Abdul Aziz succeeded Sulaiman in 99/717 on the same basis, but he gathered the people and said, "I have been given the responsibilities of Khilafah without my wish and without consulting the people. Hence I myself throw away the 'Mill-stone' of my bayah (the contract of Khilafah) which has been tied around your neck. Now you may elect anyone whom you like your Khalifa."[11] It was the Umayyad's practice that every ruling sovereign used to obtain for his nominee the bayah from the nobles and the public in his own life time, so as to ensure his ascension to the throne without religious objection. They were convinced that nomination by the ruling Amir does not entitle one to ascend to the office of the Amir al-Muminin. They held out that it was bayah of the people which invests one with the authority of Khilafah to rule over the realm of Islam. Consequently, in order to preserve the Khilafah in their dynastic line, they maintained the facade of bayah. Umar bin Abdul Aziz threw aside this facade which in its form was a right measure but subsurvient to evil ends. It was a Shar'i kilo that the Umayyads adopted. 'Umar repudiated it, and set the people free from the legal burden of the bayah to him, and asked them to choose their Imam. With great joy, the people asked him to continue as their Khalifa. The Umayyads were no longer in power now; he returned everything of illicit earnings of his family to the public treasury and restored the ways of Abu Bakr and Umar.  The Umayyads poisoned him to death in 101/707 and again seized the power. Yazid bin Walid who succeeded Hisham b. Abdul Malik in 126/744 addressed the people in the spirit of Umar b. Abdul Aziz and said, "I would try to maintain equality of rights of all—whether they live far away or nearer, and if I fulfil my promises, you may obey and help me; and if I fail in them, you may depose me. You are to be witness of my penitence. If you find a good man worthy or promising what I have promised and want to do bayah on his hands, then I will be the first to do bayah to him." But he was not to survive for more than six months. Thus all efforts to set the Khilafah on right constitutional base were frustrated, but presently, we are not interested in the historical developments. Our interest lies in precisely determining the nature of religious consciousness of the Ummah on the problem of community organization during the early periods of Islam and for the particular purpose, we have recorded the views of Muawiya II, Umar bin Abdul Aziz and Yazid bin \Valid who gave vent to the collective consciousness of the people. The junior companions of the prophet, that is, those who were infants and youths during the life of the Prophet, the Tabiun, those who followed them, and the succeeding generation of the Salaf, in short all those who belonged to the first three or four generations of the Ummah, themselves saw or heard from their fathers and grandfathers about the nature and structure of the Khilafah. In between the circumstances, events and procedures of the appointment of Abu Bakr, Umar bin Khattab and Uthman bin Affan to the steership of Islam, those generations comprehended the socio-political meanings of the community of the believers in the idea of bayah the expressive consensus of the people, as the constitutive principle of the Khilafah al-Rasul. The Umayyads did not dare to challenge or alter it. What they did was to jeopordize its practical effects by administrative manipulation, coercive measures and oppressive tactics, reducing the bayah to a juristic farce for the continuity of their dynastic rule. 'The theoretic edifice of the Muslim dominions remained intact to the extent to which the Umayyad rulers adhered to the idea of the election of the chief of the believers by general consensus of the Ummah.

The Abbasid, on the contrary, tried to dispense with the idea of the consensus of the people behind the office of the Khalifa. They altered the constitutive bayah into the oath of allegiance. Those who refused the oath were crushed for going against the canons of the religion, for, according to their new theory, their dynasty had the divine sanction to rule over the community. This major departure from the religious consciousness of the earlier generations was accomplished by a number of doctrinal devices but the dominant current of the Muslim thought never absorbed the Abbasid idea. As a consequence, the later Abbasid thinkers were forced to devise hi/a-tools within the framework of the original theory coming down from the first generations of the Believers, with the purpose of representing the Abbasid Sovereignty as the legitimate authority of the Muslim dominions.

The political theory of the Abbasid State, thus, underwent two phases of development. In the first phase, Saffah, Mansur, Mandi, Harun, etc., appeared as Ashab al-Nass wal-Tayyun claiming their right to govern, not from the collective authority or agreement of the believers, but from the Nasus of the Quran (arguments based on the verses of the Holy Book)interpreted, as they were, in the light of a stock of Ahadith (saying) attributed to the Prophet, as, for instance: "Members of my house are like the Noah's Ark; those who took refuge in it were saved, those who faltered away were perished"; "I leave behind two precious things among you. If you hold them with firmness you will not go astray: the book and my house."

From the standpoint of the bulk heritage of the earlier generations, the Abbasid theory undoubtedly constitutes a hiyal deviation from the Shariah, but from another point of view, it is a new Mazhab or cult, having its own aesthesis and theoretic formulations, common to all the Hashmite movements. Its most classical representation is preserved in the ephtles of the Abbasids addressed to their subjects, especially to the inhabitants of Khurasan. One such epistle of al-Mamun consists of the following propositions and exposition of their political authority : "The inheritance of Khilafah to the excellent men from his di ah qurba (the Prophet's relatives) is due to the immense devotion to Him the Messanger of God had, as He Himself put it in His revelations. The Almighty graced His Prophet with rare favours, by directing him to advise his followers to extend their love to his relations—kiths and kin —in exchange for the message he brought unto them and his guidance that caused their deliverance from the untruth. Thus the precedence (of the house of the prophet over others) was established by the will of Cod.... The Almighty and Great says (to His Prophet), 'Tell (the people), I asked you for no requital for my work except love for the relations.' And what re-affirms His selection (of the Prophet's House) is the information He has purified them and absolved them of sin. Says Almighty, 'Allah certainly wishes, On people of the House of the Prophet, to absolve you of sin and purify you completely.' And what gives unshakable firmness to their right to inherit...is the clear revelation of God, 'And blood-relations inherit one another according to the Book of Allah.' "[12] The long epistle concludes as follows : "And when there is true knowledge, there remains no doubt: (1) About the compassion of God, His Mercy and Kindness in exonerating mankind from what lies beyond their sphere and reach; (2) about His sufficiency in appointing rulers for them (the mankind) because they are hopelessly unable to search for and find out (their rulers); (3) about His Responsibility in elevating the status of their rulers to the highest by connecting their lineage to the Prophet and making it obligatory on mankind to extend their love to them. And the ignorance of people does not cheat them as to the purpose of this obligation (as a consequence of which) they were not obliged to recognize anyone else other than these men (belonging to the House) as their rulers."[13] Since, this thesis, as I have remarked earlier, is an entirely new politico-religious doctrine, it should not be considered a distortion or hila-modification of the dominant trend of Islam. It was meant to be an Asl (Grund-Begrif) of the religion. Earlier, the march of the Abbasids against the Umayyads was followed by an intense propaganda, spreading rumours in the form of predictive traditions like the following:

"When you see black banners coming from Khurasan, then go towards them scrawling (even) on the ice, i.e. in the most abject state of humbleness, for the Khalifa of God, the vicar of the right, would be with them."[14]

"A man will rise from Mawar al-Naher; he will be called Harith Hurath. Before him will be a man, Mansoor. He will give honours to the House of Mohammad, as the Quraish gave honours to the Prophet of God. It is obligatory on every believer to help him."[15]

The victory of the Abbasids was essentially and fundamentally a victory of a new doctrine, that implied a radical transformation of the religious outlook; it was a victory of theocracy over the community-view of the organization of Ummah ; of unmitigated monarchy over the prospects of the governance by consultation, of sacrosanct character of a particular house over the Divine character of the consensus of the people.

But, in spite of their doctrinal estrangement from the Ummah, the Abbasid rulers did not abandon the practice of extorting bayah from the people like their Umayyad predecessors. The continuity of the institution, though made unnecessary by the Divine nature of their rule, as they were prone to conceive it, yet it was the only means of suggesting to the Ummah that the Abbasids were not different from them in either belief or outlook. Furthermore, the continuity of the institution enabled them to isolate their enemies, the heroic republicans, who were always ready to proclaim the original theory of Khilafah with their blood, as well as their radically opposites, the rival Hashmites, who were not to reconcile with the Abbasids for usurping the Divine right of the House of Ali. The former were nicknamed as the Kharijites, meaning thereby the people who were gone out of the pale of the community; and the latter were condemned as Rawafiz, that is, the people who were led astray; the Ummah in between the extremes, maintaing a composure of silence under their authority, rather obedient to them, was given the honorific title of ahl al-Sunnah wa'l Jama'h and was promised a rule of the Sharjah. This promise was a source of adjusting the religious minded people to the sovereign authority of the Abbasids, but at the same time it involved the (religious) obligation of defending the Abbasid government as a proper authority or Khilafah of the community of believers. The Ulama fulfilled this obligation by following the standard methodology of the shari jurisprudence. This activity gave rise to what I have called the Kitab  al‑Hiyal in the political thinking of the Ummah.

III

The political Kital al-Hiyal was written down in the course of many decades, rather centuries until it became an integral part of the Muslim psyche and an unchallengable legacy of the Muslim thought. An episode with al-Mamun gives the full contents of the work, its scope and problems. "Once a Kharijite undaunted in any way asked Mamun this question : 'Tell me regarding this seat which thou occupiest—doest thou sit there with the unanimous consent of the people or by violence or force? Mamun at once replied : Neither the one, nor the other; but one who governed the affairs of the Muslims bequeathed it to me and to my brother, and when the authority devolved upon me I felt that I needed the unanimous consent of the people, but I saw that if I abandoned the government the security of Islam would be disturbed, the highways would be infested with robbers, and public affairs would fall into confusion and there would be strife and disorder by which the Muslims would be hindered from going on pilgrimage and doing their duty, wherefore I arose in defence of the people unless they should be of accord upon one man whom they should approve, and I would then resign the government to him ; when they agree upon a man, I will abdicate in their favour."[16]

There are many significant points in al-Mamun's plea. First, he makes his defence on the basis of the general principle of the Ummah that the Khilafah is by consent of the people; secondly, he represents the historical character of his authority that the rule was given to him by one who had ruled over the affairs of the Muslims; thirdly, his readiness to abdicate, if the faithful agreed upon a Khalifa; and fourthly, to continue in authority to look after the affairs and security of the community till such an agreement was reached. The chain of reasoning and logistics of al-Mamun's answer raised the scaffolding of the Shari evolution of political thought in subsequent generations. Its juristic effect was perpetual postponement of the original Shar'i principle. Since it implies suspension of the effects of a Shari provision and opens door for a Shar'i prohibition, i.e. no authority without public consent, it constitutes a hila fabrication in the body of the Sacred Law. The Abbasid Unimak of the middle course assimilated compilation of these fabrications in its legal theory, political philosophy, and canon of the Shariah, and thus generated a particular type of objective mind behind the dynamics of Muslim Civilization, quite foreign to the objectivity of the earlier generations of Islam.

Al-Mamun's legal excuse was his stake on the idea of unanimity of consensus for the appointment of the Khalifa; he was to continue till that requirement was satisfied. But, in his epistle, lie had already written about its impossibility: "For, if all the people of the East and the West without distinction were to choose an Imam for themselves, there is little hope that they would arrive at an agreement till the end of time, on account of the dissensions and differences prevalent in them."[17] The impossibility of unanimous choice, consequently, became in his case the Shari hila of his continued, uninterrupted authority as the custodian of the public affairs. The secret of his argument lies in presenting the whole politico-religious problem in an either. or situation : either the elected Khalifa or his rule given to him as a historical fact. There arc however a series of theoretical alternatives between these extremes. In this respect juristic reason operates on the axiom that if there is no possibility of the excellent state then a state of' affairs containing more provision of excellence is preferable to one that contains a lesser degree of it. Consequently, if the principle of Khilafah by people's consent means appointment of an imam by the unanimous agreement of the people of the East and the West, then its practical difficulties and consequent impossibility should not entail its complete suspension or permanent postponement. There is no such implication of the principle; what it implies as a norm of the political authority is utmost degree of its realization. If unanimity is an impossibility then majority of agreement attains the position of a sufficient condition for the appointment of an Imam, according to the requirement of the Shariah.

Absence of the rule of majority produces a lacuna in the deductions of al-Mamun and consequently makes this plea a hila-device from the standpoint of the Islamic jurisprudence. This rule is not only deducible from the theoretic consideration of moral or religious obligation, but also from the systematics of the Shari deductions crystalized as they were, in the development of the famous schools of the jurists. The early fuqaha, during the days of the Umayyads, were used to depend on their own individual judgements. But the confusing multiplicity of individual legal opinions was brought to unity and order by the evolution of the principle of Ijma, as the methodic source of the compilation of the Shariah. The individual ijtihad was thus, classified as a Zam (speculation) or fallible deduction. Its function was to yield the content for the synthetic activity of the Juristic Reason operating with the Ijma of Ahl al-Ray as creative principle developing the private opinions into the objective law of Islam. But, the Ijma, in its application to the particular cases, was interpreted as denoting the majority opinion of the jurists. This majority opinion as fulfilling all the necessary meanings of the juristic consensus was supposed to be endowed with a divine character, under the notion of the lima (infallibility of  the consensus) and provided the mechanics for the codification of the Shariah and its formalization to new cases. Granting the idea of appointment of an Imam by public consensus as shar’i obligation of the believers, the Ijtihad of every Muslim, in the choice of the Imam, according to the same methodology of the Shariah, would be treated as a private Zam, a fallible religious opinion, which would not attain sanctity, without its conformity with the majority principle, which transorms the individual Zanun (opinions) into a consensus of the Ummah, and therefore into a Shar'i judgement obligatory on all the believers. Since the principle, as the practical form of Ijma' in the deductions of the Shariah was stabilized in the evolution of the Muslim jurisprudence, long before the period of al-Mamun, the latter's insistence on the unanimity constituted a grave hila-reasoning from the strict point of view of the Muslim law. The hila was not an ordinary one ; in its imports it threw a challenge to one of the very foundations of the Shariah, to its law of codification, expansion, and evolution, and therefore was fundamentally against the religious conciousness of Islam. But, the fuqaha never challenged it. The Shariah had remained suspended of its public and social effects, till the European political philosophy reawakened the Muslims to the acceptance and necessity of the majority principle in the constitution of states and its formalization in the conduct of governments. The evolution of Islamic jurisprudence, its methodology of deduction and formalization is essentially correlated with a democratic society, organized in its government and distribution of power on the basis of the majority principle, but its flowering under the aegis of the autocratic rule of the dynasties is a historical phenomenon, which has influenced its character, deductions and codification. Never has it taken up the majority principle to the domain of public affairs and administration and to the disposal of authority. In those fields consequently, it is a mere patch work of Hiyal.

The second part of al-Mamun's pretentions for his authority is based on an axiom which purports to condone the present state of affairs till the beginning of a better one. As an independent norm of the axiological reasoning, this principle has a duly admitted place in moral and legal judgement and likewise in the application of the Shariah to concrete human situations. But, as usual, the Abbasid argument omits a vital ingredient of the principle which alone may lend quality of moral approval and Shar'i permission to a de facto state of affairs handed down from the past. The ingredient is posited by the moral obligation and religious duty that leads one to pursue actively the realization of the good state. This active pursuit is a priori condition of condoning the shortcomings of the present situation. Immoral, illegitimate or prohibitory structure of the present state in itself contains the obligatory duty of relentless striving to undo and modify it to suit the logical structure of a positively good state of affair. Since, this aspect of striving is absent from the readiness to vacate the authority as soon as a Khalifah is chosen by general consent, the argument turns out to be a network of hila: to validate the illicit rule amounting to the reversal of the order of good and evil, obligations and prohibitions' that constitute the social order warranted by the Shariah of Islam. There can be no Istashab bi'l-Hal[18] (argument by appeal to the present) in this case, because the Ishashab as a genuine piece of argument necessarily presupposes that there is no established case of prohibitory character-complex in the nature of what prevails at present, and when there is no such case, the principle of Istashab allows it to continue. But with the domination of the Abbasids in most of the arguments, Istashab divorced of its binding presuppositions, appeared in the hila-reasoning, playing a fundamental role in the evolution of the Muslim political thought.

Instead of developing the true implications of Islam and rigorously extending it over to the exposition of the rights of men, duties of the believers and the constitution of public authority, the Muslim thinkers spent their energies on sharpening new hiyal to raise the unwholesome organiza tion of the community to the dignity of religious institutions flowing from the living streams of the Shariah. The wind of change which was betaking the Muslim Culture may be illustrated by radically different responses of great jurists within a short span of three decades. When al-Mansur was consolidating his power (in 142/762) "the famous doctor of Islam, Malik, son of Anas, gave his decision that the oath of allegiance to the Abbasids, having been obtained by force, was of no binding obligation. This is characteristic at once for the ethics of Islam and for the view of the rule of the Abbasids, which was taken by those persons who were properly speaking... guardian of religion and of the Sacred Law."[19] But the Ummah was soon infested with the jurists and judges who were to fortify the profligate imamah established without consultation with the people. Abu Yusuf, the Chief Qadi of Baghdad during the reigns of al-Mahdi (the successor of al-Mansur) and al-Harun, appealed to the working of the Divine hand in the affairs of mankind. His argument in fact is a symbolic mode of Ishtashab bi'l-Hal without observing its shar'i limits. There is no difference whether you call it the work of God or a work of history from the shar'i point of view. In both the constructs appeal is made to the present state of affairs, which solely, by virute of its presence, and for no other reason logically required of the Shar'i deduction, is treated as the sufficient ground for its existential continuation. Abu Yusuf corroborates a number of sayings of the Prophet in the welding of his argument without being even slightly considerate to their contexts and presuppositions.[20] He quotes, for instance, "One who obeys me, indeed, obeys God ; and one who obeys the Imam, indeed obeys me"; "Even if a nose-cut negro slave is made your Imam, hearken to him and obey him." Both of these sayings presuppose, of course, legitimate Imamah, to which Abu Yusuf makes no reference. He brings another Hadith: "When God intends good to a people, He appoints over them governors who are forbearing and put their properties in the hands of tolerant men ; and when he wants to put them to ordeal, He appoints over them stupid governors and entrusts their goods into the hands of avaricious men." In this manner, Abu Yusuf stifles the moral obligation of the believers in relation to the politico-religious fortune of the Ummah, for the logical implication of his reasoning is full endorsement of the process of history and its fluctuations as proper episodes, practices, patterns and constitution of the Ummah.

Contagion of this particular form of empiricism or juristic positivism is one of the main features of the ontogenesis of the Abbasid Ummah into a throughgoing negation of Islam. Ibn Abi al-Rabi, of the court of Mu'tasim (833-42), tries to give a religious look to this mode of metamorphosis of the Siyasat al-Shariah, and wrote "that homage to the kings is obligatory on the Ulama as obedience to the King is obligatory upon them, for it is God who appoints Kings upon the land and entrusts to them the guardianship of His slaves to them, as He says : '(it is He) who hath created you inherit the earth and elevates some of you over others '; and ‘obey God, obey the Apostle and the Ruler (from among you)'."[21]

Thus the doctrine that he developed was a fiction, amicably adaptable to the rise and fall of the rulers, and quietly opening the door for unconditional Istashab bi'l-Hal as a canonical methodology of Islam. Aberrations like this deeply vitiated the propositions of politico-juristic though in Islam. All major socio-political works were irresistably led towards the canonical permission of the phenomenon of power-state, and consequently delicate waves of hila-reasoning flooded their representation of the Shariah.

Hila-products are recognizable by their logical structure. Ibn Qayyam should also be credited for his thorough examination of the mechanics and elements of hiyal. He lays down the principal rules of their recognition amidst the fiqhi innovations[22] as follows:

1.                         They change the system of obligations and prohibitions;

2.                         They are made of conceits and fallacies There is always some kind of sophistry and uneven inference in their texture.

3.                         In their main form, their reasoning involves a reference to the Salaf, to the companions, to the Apostle and to the Divine legislator, with the main purpose of showing them to follow vigorously from the usul al-din. Ordinary shar’i reasoning is also based on the same sources, but the class o f hiyal is clearly discernible by unmethodic jumps in their constructs, unsuitable analogies in the main body of their arguments, and incredulous evocation of general principles of the shariah in their final conclusions. Essentially, they skip over the series of limitations or considerations which enable the general law (as for instance : juristic preference, or public interest, etc.) to apply to the particular case subject to their judgement.

4.                         The agent of the Hila lacks the consciousness of sin, and does not feel repentence for his doings.

5.                         He wants to cheat the creator and creature, both, often trying to seek concessions in his favour through the linguistic forms of the law.

6.                         The Hiyal are marked by opportunism, which encourages the enemies to condemn the faith as lacking in sincerity and purposiveness.

7.                         The agent of Hila uses his wits and reason for undermining those principles and conventions, which were established and strengthened by the Apostle of God, and repudiates those traditions which were made obligatory by him.

The total effects of the Hiyal were far reaching. They changed the character-complex of Islam, modified its societal configuration, resulting in the disintegration of its spirit, with its gradual redintegration into creature of a new make.

Ibn Qayyam discusses four kinds of hila, each representing a particular mode of encroachment upon the Shariah and the form of impact on the community organization of the Ummah: (1) development of a modi vivendi to serve illicit goats, (2) deployment of an obligatory measure in a manner which makes it subsurvient to unwholesome ends, (3) adaptation of legitimate and permissible provisions to prohibited or evil design ,and  (4) involvement of illicit means and ways to rightful claims and ends "[23]

There can be no compromise, no synthesis, or no amalgam between right and wrong, good and evil. According to Ibn Qayyam, all such devices, inventories, legal fictions, and manners and morals that combine good and evil are without exception hi Hiyal, and represent the following juxtaposition of right and wrong in their nature : (1) good ends with evil means, (2) evil ends with good means, (3) evil ends with value-free (neutral) means, and (4) value-free ends with evil means. Accordingly, the sound methodology of juristic evolution in Islam is a creative activity which synthesizes (1) good means with good ends, (2) value-free means with good ends, (3) value-free means with value-free ends, and (4) good means with value-free ends. In other words, genuine modi vivendi in Islamic legal th eory are either combinations of good things or of those things for which here is moral neutrality, involving neither prohibition, nor obligation.

The above analysis of hiyal, exposition of their intent and nature in a background of the rightful modes of Shar'i innovations,enable us to examine the juristic fictions which cropped up in Muslim thought during and after the transformation of the Khilafah into a Mulk. There is no better way to encounter the multitude of their deductions than to dig them out from their very roots. This approach brings them down to some four basic principles:

1.          The principle of necessity (darurah) i.e. argument by appeal to the state of emergency (Idtarar);

2.     The principle of peace in the land versus disturbance (fitna) ;

3.     The principle of social order versus disorder ; and

4.     The principle of social solidarity and unity of the Ummah against the perils of disunity and dissension.

It seems as if the social-political consciousness of the Ummah as it passed on and was informed of, from generation to generation, through the vehicles of Ahkam al-Sultaniyah, Tahrir al-Ahkam, Mirror of the Kings, Ihya al-ulum al-Din, Siyasat Namah, Fatawa-i-Jahandari and Izalat al-Khifa, could conceive of nothing in its self-reflexion, but axiomatic foundation of its deliberations on those  principles which at best represent an unusual passing moment in which surival only counts as the supreme value of morality, law and religion. Synthesis of these usul in a fourfold schema served not only as a disciplinary model for the socio-political probe, but also as the ‘norm' of Shar'i reasoning on the affairs of the Ummah, its public interests, clustre of institutions, and orientation of its future. Also, did it serve as a balance fixed in the middle of the stream of thought to judge the extremes, in order to keep the Ummah on the side of moderation, for the idea of moderation or middle course was hypostatized into the supreme light for guiding the believer on the right path.

IV

Arguments by appeal to the condition of idtarar as foundation of politico-religious consciousness of the believer, found its superb exponent in al-Ghazali. His Kitab al-Iqtesad l-Aqaid (the Book of Moderation in Doctrines) and Ihya al-Ulum al-Din (Revival of the Religious Sciences) accomplished the great task, perhaps hitherto far from realization on juristic bases, of finally reconciling the conscience of a religious soul to the treachery, conceits and viciousness of the socio-political reality. The subsequent generations of the world of Islam owed much to al-Ghazali for a new kind of briefing on religious outlook, that helped them not to be disturbed by those worries, which had informed the lives of men during the life of the Prophet and his Companions. He made religion a personal affair. He was a Luther in Islam, but of a different fabric. By making individual responsible for his religion, Luther of the West democratized the spirit, and began an era of progress leading to science and industrial revolution, new theories of government and political reformations. Al-Ghazali of Islam, by individualizing religion, left the reins of society to the worldly men, legitimized their exploits and authority and reoriented the souls to taste the world of heart. It was not an aspect, but the whole religion itself that took a full turning with AlGhazali. He prepared the believer to be at peace with every kind of authoritative arrangement of the society.

By invoking the idea of Idtarar (emergency) under the concept of darurah (necessity), he over-rides every provision of the Sharia which could impeach the believer in this behalf. The concept of necessity, used with the connotation of Idtarar, i. e. emergency, produces a condition in which normal Shar'i duties and requirements no longer have the same force. When a man is ill, and the Ramdan fasting is likely to impede his improvement or futher deteriorate his health, the principle of Idtarar exempts him from the obligation for the time being, with the explicit provision that he would complete the required number of fasts after illness was over. Similarly, in a situation of acute danger, the believer is allowed to postpone his obligatory prayer rather than endanger his life. All the authentic illustrations of the principle have one thing in common, viz. they are primarily related to those basic wants the non-fulfilment of which may lead to death. There is no further extension of the principle inferable from the living sunnah (actions and practices) of the Prophet and his Companions. Umar b. Khattab, by his ordinance, once suspended the Qurnic punishment for theft during the period of starvation which swept the country. Al Ghazali in his exposition of the principle could not cite a better instance than that " we know that we are not allowed to feed on dead animals, still it would be worse to die of hunger." From this special case of Idtarar, he infers, as if by analogical reasoning, the rule that necessity makes lawful what is fobidden. His full statement is as follows : " The concessions made by us are not spontaneous but necessity makes lawful what is forbidden. We know, it is not allowed to feed on dead animals. Still it would be worse to die of hunger. Of those that contend that the Khilafah is dead for ever and is irreplaceable, we should like to ask : which is to be preferred, anarchy and stoppage of social life for the lack of a properly constituted authority or acknowledgement of the existing power ? What may be the nature of these alternatives, the jurists cannot but choose the latter."[24] Al-Ghazali's argument constitutes in no way a direct analogical inference from a given composition of events to other like events, and consequently in its effects, it is a hila directed to give a Shar'i touch to what is otherwise impermissible according to the code of Islam. Logical structure of this hila rests on the contextual fallacy that causes far-fetched parallels, not within the intentions of the methodic movement of the juristic reason, whether of ordinary law or that of the Shariah.

From the case of a man who has no choice but facing death or feeding on dead animal, a corresponding case for social situation cannot be corroborated, for there is a lot of difference between the constitution of an individual man and the nature of society; it cannot be instantaneously closed down without begging upon a suitable fictional device. Treatment of society as an organism with the implication of a genetic frame and unacquired physique may serve the purpose, but introduction of this fiction as a bridge for transition from individual to society is an act of so gigantic a character that in itself it institutes an outlook, an interpretatation of experience that cannot be provided except by the original ideology which underlies the deductive system of the law. In other words, the fiction should be either an independent element of the axiom system of the law, serving as one of the principles of its development, or it has no provision at all. Only on the basis of its axiomatic provision, the legal reasoning may extend it with the usual methods of juristic analogy and legal precedence, etc. from individual to society and draw valid inference. But, since the conception of society as a living organism with all its full implications, has never been articulated in the articles of faith in Islam, it cannot be used as a ground of legal deductions and Shar'i conclusion, without impairing the structure of its sacred Law. Development of recent philosophical thought shows the hollowness of the organic fiction in the representation of society, and also clearly alludes to such doctrinal, meta. physical, political and moral implications as are sharply antagonistic to the basic outlook of Islam. It cannot be therefore used as a device for legal deductions in the Shariah, and if and when it is so used, it constitutes a hila-tool. But, unfortunately it was so used. It means that Muslim political thought deteriorated into sheltering under anti-religious fictions, serving as devices for making lawful what was unlawful for a straight religious reasoning. Ghazali's extention of the idea of Idtarar is one of the major symptoms of this deterioration, involving an element of interpretive fiction that undermines the spirit of religion.

Moreover, the biological fiction, hidden in his argument, is not efficacious in bringing the cases of individual and society closer in comparison any more, for the idea of Idtarar in its Shari connotation is saturated with the exact definition and predictibility of the events given in the logical composition of the situation. Starvation to death or survival on the support of the prohibited provision are exact, self-evident and predictible components of the situation surrounding the individual. In their combination they produce the state of Idtarar. In this and in similar situations alone the Shariah reverses its crdinances and withdraws its prohibitions. This emergency concession is not for all the aspects of life, but for one and only for that one which is relevant to the situation. Granting that organic fiction for society has some truth, the analogy between the two cases is hardly admissible, for social order is a very intricate system of events; at no moment is it entangled with the starkest minimum of only two unmistakable, sure and clearly forseeable alternate situations. It highly complex moments defy exactness, contain many venues, admit a number of solutions and thus seldom come down to death or a single course of action. Consequently, the Shar'i idea of Idtarar has no field of application in the social order of reality.

Natural calamities, earthquakes, floods and starvation are mass events, not social events which directly hit the individuals. Mankind meets their challenge by organised efforts, by developing institutions, and improving administration. Thus, the human response is social in its character, and for this response no problem of reversing the orders of permission and prohibition arises. For the individuals hit by the calamities there is the Shar'i concession which prevails in the state of Idtarar. There are also times of trouble for the nations; for instance, the hours of war. Here the response of the people matters as a social  phenomenon. Nations reassert their individuality by keeping their frame intact in the perils of war. In relation to this problem also the idea of Idtarar does not warrant the suspension of the Shariah and its sociopolitical implications. Added to it is a more profound consideration. When a man is allowed to touch the prohibited food in a state of Idtarar, this concession gives his frame a new lease of life. It means that he is to continue with his constitution, figure and identity. The idea of Idtarar therefore in its basic implications, consists of those allowances and concessions, which help one in keeping up with one's body and composition, form and content in the severity of hard times. Its ultimate meaning is some sort of functional readjustment for the preservation of the life structure as the most fundamental obligation. A man is dead when his frame is impaired. 'This consideration may apply to nations. They are shorn of existence when their frame is damaged; they die out by slow or sudden transfiguration while their surviving generations become some other nation. The structure of Islamic society was laid down in the principle of Imamah by consultation. But when the Muslim society departed from this constitution, it became a new kind of society. Attempts to rationalize this departure in order to keep its identity proved futile.If there were emergency measures, their intent would have been to preserve and restore the original figure of the society, but the jurists evoked the idea of Idtarar for producing the semblance of the continuity of Muslim Ummah, in spite of drastic transfiguration it had undergone.

Al-Ghazali's assertion that darurah (necessity) condones the reversal of permissions and prohibitions, licentiates every form of naked relativism that unsparingly encroaches upon every right, duty and obligation on which the edifice of culture, morality, law and religion is raised. Consequently, the idea of darurah cannot have an indisciplined place in the usul al'Shariah. Waliullah brings to light the inward logic and objective rule which controls the system of concessions and postponements in the body of the Islamic jurisprudence. He states that every Shar'i obligation consists of two aspects: one principal and the other subsidary.[25] The principal aspect is identical with the very root and essence of the obligation and forms its substantive component, while the other is subservient to its end, and consequently represents the Shar'i medium of its accomplishment.[26] The subject-matter of Shar'i concessions and suspensions is furnished by this subsidiary component providing for an element of change in the modes of accomplishment and means of realization in concord with the circumstances, in which the obligation is to be honoured. ft follows from this exposition that the principal obligation remains immutable [27] It has to be accomplished in every circumstances, only its instrumental form will change. This canonical law suffices to bear upon all the cases of darurah so much so that even emergency state being specifiable as a special case of concordance with the prevailing conditions, cannot be underlined as an independent principle of Shari deductions, beyond its range. The Shar'i provision of concessions and suspension yields a system of substitutive forms for the achievement of the principal essence of the obligation. As a corollary, Waliullah explains that the substitutive forms also follow a law: they must bear as much resemblance as possible with the normal (subsurvient) component. If Imamah by consultation is a Shar'i obligation, then the concept of darurah or the idea of emergency cannot affect the principal component of the foundation of Imamah ; it may however affect the form of its accomplishment, the way in which it is realized. Consequently, Al-Ghazali's attempt to exempt the Imamah from its principal component, i.e. the agreement of the people on the plea of emergency conditions, is a hila-reasoning in complete violation of the canons of the Shatiah, stipulated for encounter with the unexpected, abnormal and peculiar circumstances. In no situation a darurah can overthrow the principal component of a shar'i provision and mitigate the intensity of its obligatory fulfillment.

Al-Ghazali's meticulous effort in demonstrating the Shag-complex of the darurah on the basis of which the de facto or circumstantial ruler-ship of the ummah could be condoned and recognized as endowed with legitimacy, leads him to examine the significance and position of the political phenomena in the life of a society. He is at his best in this probe, and makes some very far-reaching contributions in the field of political theory. By giving an original exposition of the nature and place of the political authority and its relation with the functioning of the society, he secures for himself a permanent position in the history of the world political thought. According to his revealing probes, political authority does not represent an aspect of the larger societal system. In its extent it includes the entire spread of the society and in depth penetrates into the very fabric of all the transactions between the individuals and consequently is directly at the nucleus of the community life. The origin of rights and duties amidst the individual members of the society depends on the sanctity and binding character of their mutual bargain, contracts, adjustments and settlements. This element of authoritativeness and binding commitment is imparted by the politico-juristic matrix of the community through its functionaries, registrars, magistrates and judges.[28] In the words of Al-Ghazali, Caliphate is institutionalization of the shariah, i.e. organ of the sanctioning, confirming, validating and endorsing process that necessarily forms an integeral core of every give and take in the human group.[29] Absence of this element turns a bargain into an illicit interaction, dissolves it completely, and makes it void of effect. These consequences do not follow from the principle that the political authority of the community is coercive power immanent in the social transactions; they follow from some higher principle. According to Al-Ghazali, the authority is a creation of law and its sanction or permission is a priori ground of the lawful coming into being of a social event, in which a number of individuals partake. Consequently, Caliphate as medium of the Shariah is fountain-head of the shar'i element in the birth of interactions and their legitimacy and sanctity in the orderly functioning of the Islamic society. It performs its function by proper delegation of its authority to the civil judges, magistrates, registrars and Amirs. No verdict has any legal, religious and Shar'i meaning, unless it is delivered by the duly commissioned jurist, who represents the Authority (Caliphate) in exercise of his juristic opinion, and by this commission his judgement becomes the Shar'i decision binding upon the persons of the community. Legitimate authority therefore is a priori condition of the administration of justice as distinct from individual opinions.[30] All functionaries of the state derive their proper authority, religiously and legally binding on all the members of the community, from the authority of the Khalifa.

Logical analysis of the nature of state, organic character of its authority, and immanent presence of its role in every authentic interaction of the individuals, as Al-Ghazali holds, makes the problem of the sanctity and constitution of the political authority hundred times more important than that of the functionaries to whom it delegates the Shar'i authority of the community. But Al Ghazali does not follow this natural and logical conclusion. He represents a de facto state of affairs : judges perform their function, registrars of marriages administer the contracts of marriage, magistrates issue decrees on civil suits. He admits that all these acts are valid and obligatory from the legal (Shar'i) point of view, provided their agents have legitimate authority. But this legitimacy and commission is a derivative function of the legal character, i. e. Shari position of the Imam from whom they receive their appointment. This argument leads to only one conclusion that without the lawful, Shar‘i, constitution of the Imamah, all the acts performed under its original or delegated authority would be void of effects, and thus would carry no Shari obligation, on the members of the community, and that therefore it is obligatory upon the believers to institute the de jure Khilafah according to the principal obligation provided by the Shariah in this behalf.

Al-Ghazali however departs from this conclusion, and immediately takes a hila-plea. He says :

If the functionaries are devoid of de jure authority, the entire social system is ruined, marriages dissolve, social deeds turn into illicit exchange. This is an emergency, and in emergency the prohibited is permissible. The authority of the de facto functionaries should be legalized in order to save the system from collapse. This can only be done by Shar'i concession to the one, who occupies the seat of supreme authority of the Ummah. Let us recognize under the pressure of darurah that the de facto ruler, who has himself beseiged the Irnamah or is led to the Imamah by the possessors of power, is the de jure Imam and proper organ of the Shariah.[31]

In this manner, he gets rid of the principal component of the Imamah, viz , its constitution by the agreement of the people. But, as it has been demonstrated above, the hila-element is not warranted by the nature of his cwn discussion and analysis of the nature of state. The shar'i conclussion is only one that no illicit authority can deliver a licit decision, and delegate the component of legality to the social acts, which need authoritative sanction and endorsement from the lawful constitution of the authority that embraces the entire community.

(Continued)

A. H. Kamali

REFERENCES