- Some of the ulamā work with the State and are therefore co-opted by the State and in so doing loose their legitimacy. This is what I call the “guilt by association” argument.
- Mursi was democratically elected and there was no right to remove him. This is what I call the “democracy” argument.
- Some of the ‘ulamā’, particularly Ali Gomaa, have openly supported the use of lethal force by the State in certain circumstances and as a result of their public positions many innocent people were killed. This is what I call the “human rights” argument.
- How is legal authority made in general and how does this apply to the Sharī‘a? And by extension who has the right to speak authoritatively on the Sharī‘a perspective on certain issues?
- What is al-siyāsa al-shar‘iyya and what is its relevance to this discussion?
- What is our standard of scholarship and normative Sunni Islam?
It is important to address these issues because, in my opinion, the hyper negativity towards some of the ‘ulamā’ in addition to the ensuing doubt amongst Western Muslims that is levied towards Islamic legal authority is a very dangerous conjunction of events and opinions. In this post and what follows I will attempt to address some of these issues that hopefully could segue into a larger discussion and study in the near future.
Guilt by Association
One of the ramifications of the takfīrī way of thinking as it relates to the current discussion is that “the ‘ulamā’ of the State” cannot be trusted at all, and anything they say and/or do justifies all the actions of the State. This is because, the logic follows, the State is inherently evil, corrupting, and un-Islamic. It is here were people fall into a type of guilt by association mentality. The truth is that many of the ‘ulamā’ that hold religious positions, such as judges or muftis, or ‘ulamā’ that advice heads of state, or even others that work with governments, play a vital and delicate role on behalf of all Muslims. They not only keep the important link between the Sharī‘a and the State alive, they also continue to provide guidance, in varying degrees, to the application of Islamic law in courts and national codes of law. At the same time it is also a fact that their influence is limited in almost everything else. Therefore, one should not conclude that their involvement with government is: one, an approval of everything that government does in every aspect of its governance, and two, we should not automatically assume that they are co-opted, but rather understand the delicate and vital role they play. In the case that these ‘ulamā’ do make a mistake, however, or an error in judgment, one should likewise approach the matter with forgiveness and understanding. An error of judgment does not negate their role as ‘ulamā’, nor does it negate their important role in the ongoing formation of legal authority.
The Making of Legal Authority
|↑1||“The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Wael Hallaq,Sharī‘a: Theory, Practice, Transformations(Cambridge: Cambridge University Press, 2009), 208-216.|
|↑2||One of his many conclusions in: Wael Hallaq,The Impossible State: Islam, politics, and modernity’s moral predicament(New York: Columbia University Press, 2013|
|↑3||Sayyid Qutb,Fī Ẓilāl al-Qur’ān, 6 vols., (Jeddah: Dār al-‘Ilm li’l Ṭabā‘a wa’l Nashr, 1986). 2:887-905.|
|↑4||Ibid., and 1:590.|
|↑5||One contemporary discussion of Qutb’s heretical views, and relevant for this discussion is, Usama al-Sayyid al-Azhari,al-Ḥaqq al-Mubīn fi man Talā‘ab bi’l Dīn(Abu Dhabi: Dār al-Faqīh, 2015). See in particular p17-29 for a discussion of Qutb’s tafsīr on verse 5:44.|
|↑6||Imām al-Bukhāri narrates in his collection that the Companion Ḥuydhafa Ibn al-Yaman (God be pleased with him) asked the Prophet (God bless him and give him peace) what to do if the community of Muslims vanishes. The Prophet (God bless him and give him peace) said, “hold to the community of Muslims and their leader (i.e. political leader), and in the narration of Abu al-Aswad, ‘listen and obey (the political leader) even if he strikes you and takes your wealth,’ and in the narration of Khalid Ibn Sabī‘ī, ‘if you find the Caliph hold to him even if he strikes you, and if you find no Caliph, then flee.’” See: Ibn Ḥajjar al-‘Asqalānī,Fatḥ al-Bārī14 vols., (Cairo: Maktabat al-Salafiyya, 1407 AH), 13:40|
|↑7||My definition of private law is adapted largely from Charles Donahue and should not be confused with the distinction made by David Snyder of private law and privately made law which is not entirely relevant for our purposes here, but necessary to know. See: Charles Donahue Jr., “Law without the State and During its Formation”, inThe American Journal of Comparative Law56(2008): 541-565; David V. Snyder, “Private Law Making”, inOhio State Law Journal64(2003): 371-449.|
|↑8||Nils Jansen,The Making of Legal Authority(Oxford: Oxford University Press, 2010), 43.|
|↑9||In the case of Ramadan al-Buti, his writings continue to be influential in the way we understand the relationship between materialism and Islam, the role of maṣlaḥa in contemporary Islamic law, and the position of normative Sunni Islam towards those who deny its historical plurality. In the case of Ali Gomaa, he too has added to the ongoing juristic discussion. He has provided juristic leadership on a host of critical issues and, in addition to his own more than 40 books, published the entire corpus of Dar al-Iftā’s fatwa collection (forty volumes and counting). Despite the many, many who find both these scholar’s positions towards political events in their respective countries repugnant, the fact remains that their addition to Sunni legal thought is a vital part of how we will continue to understand the Sharī‘a throughout our lifetime and beyond.|