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First Palrer

ryAN7N and the \FARTAH

Tlte function started with the recitation from the Holy

Qur'an. Prof. Dr. Mehbub Elahi Hamdard recited the followingdydt from silrah al-Md'idah:

bly{xy?r.!$i6 6,;t9_ ljt Yk fii,b,J;i (t ;,sLhlt t ;frn,ir* g'g gjl rtf'f,'i! rY i r r#'W .tJ,Hi. ; Er'i;Fft s*:6-V dt 6b;u. fry Iqe;t,igj3 Oe$ufti,s(*Nua6 rtl ,# Otfr.t#,(#,,WyI {r FV&U'iulJ,\fi;7yiii 3. $rtf, V Y#; Yq^t c"

6 6lr*,

,,ls it then the lryulon of idhiliyyah (lenorance) that they are

sceking? wlro is better than Allah fot l4ulotr (laws) to a

people wlto have certainty (in their beliefl?

"Q you wlto believe! Take not the Jews and the Christians

for friends. They are friends one to another. He among you

who takes them for friends is (one) of them. Lo! Allah guides

not wrongdoing folk. '

"Altcl tltou (O Muhamma.d) seest those in whose heart is a

disease race tow.td th.m, saying: We fear lest 'a change of

fortune befall us.

"Altcl it rnay ftappen that Allah will vouchsafe (unto thee)

the victory, or a commandment futnr)from His presence'

l'hen they will repent of their secret thoughts." (5:50-52).

2

Dr. Janteel Jalibi SaltibDr. Yuzu f Abbas Hashmi,Excellencies, [:ides and Gcnthmen,

Prologue

I anr greatly honoured by the invitation, of the Universityof Karachi to deliver these lectures in comnienroration of thegrcat scholar and educationist Prof. Dr. I Ishtiyak Husayn

Qureshi. it.i

I lrad the unique opportunity to knoul him many yearsbcforc hc left this world foreternity. lt waf in thc year 1953wlten the first conference on Islalnic Culture was held inPrinceton. Prof. Qurcshi, then Ministcr of Ebucation, was oneof thc distingrrished participants of the confprence.

I

I never forget the mcmorable moment dilring the delibera-tiorrs of thc confcrence when he revealed his unique persona-lity. During a discussion an orientalist began to make conl-nrents on tlre IIoly Qur'an as if it is purelf the product of a

social-historical event. I was sitting besidd Prof. Qureshi. Icould sec that he was deeply disturbed Ui, ttris mundane,sacriligious approach to the word of AIIah.l First he made re-tnarks to bring ttre deliberationsto ttre truelspiritualnature oftlrc subjcct. Then losing his patience, he stood up and said inan indignnnt deep voice: 'lVe Muslim delebates cannot con-tintre to attend the conference as long as the Holy Qur'an istrcated as a piece of literary work". These wlords were utteredwith that prolound faith and devotion thatjmakes man great.Ishtiyak Flusayn Qureshi was a humble slaye of Allah and agreat man.

3

ln studying Islamic institutions basically two differentapproaches are made. Strict religious interpretation calls for a

commentary based on the immutable, eternal precepts of Is-lam as embodied in the Qur'an and,Srrlrrch. On the evidenceof tlrese fundamental sources it is asserted that "Sovereigntybclongs to Allah; the universe is in reality the kingdom of theone God. Thus, there is only one source of law". His lawgoverns the entire universe, including human society and the

st a te.

At tlre outset we ntust admit the fact tlrat as far as thetrrrity and continuity of Istam is concerned this strict sunnT

interprctation played a crucial part throughout Islamic his-tory. Islam preserved its unity in time and space only throughsuclr 'ulentd as Al-$ban'l Ma[k and lbn TaynrTyyah. Bydefining what is authentic Islam they safeguardecl Islam fromdisruptive inroads in various historical settings. There is nodoubtrthat Islam owes its continuity and solidity ai a uniquesystem of beliefs to those who zealously pursued this line. Atall times, in introducing new laws the law maker felt compel-led to take the opinion of the religious authority to makesure that his law conforrned to the law of Islam. This schoolof thought betieved that no reform can be permitted outsidetfre interprctation of the prime sources by great inrdnrs. Be-

ing an Islamic state theOttoman empire followed and pursuedthis fundantental principle.

It appears that in enacting legal rules or even in takingim;rortant political decisions the first Ottonran sultans con-suf ted the falgilts, and later on they established the office ofStnyklt al-Islam for the p'urpose. Howcver, in the first pcrioclbt" Ottornan histoiy, that,is between 1300 and 1600, certainarias in public aclministration were reservecl as exclusivedornain of tlre Sul{in's legislative activity. tn this particularfielcl, the slnrl'ah or dogmatic interpretation was not con-siclcrcd sufficient to explain a variety of institutions, includingStrltan ic kdniinJ( I ). I [cre, as an alternative method, the use ofernpirical historical approach was considered indispensable.

4

Generally speaking social-historicJl rnethod is concerneclwith the actual conditions and historiial,processes which giverise to a particular institution. It is to be noted that Islamicjurisprudence itself was not unfamiliar with an empiricalnrethod in expanding the corpus of Islamic,'law. Under thelrrinciple of ijmd' it is confirmed that the sJrarT'ah wasdcvcloped by the infallible authority of the Muslim com-rnunity, or society itself. In the nineteenth century thoserrrodernist Muslim 'ulemd and thinkdrs who advocated theopeni4g of tlre gate of iiilhad strove to;give its widest applica-tion to this clynamic principle of Islanr.ii jurisprudenti. Asis wcll known, those authorities who particularly favouredtfre principles of iimii', istil,tsin and iitisldl.t belonged to theIJanafi school of law which was theottoman official nndhab.ottoman legist, Muhammad Al-Fanirilwas considered oi-e ofthose authorities who expanded the principle of ls/rs/ri1r. Togive nn exanrple, Ottoman Slwyttri,al-lsilm Abu'i Su,fdapproved the wakfs in cash which we{e widely established intlte .sixteenth century ottornan sociely.'His reasoning wastlrat thousands of poor people, 'ulenid, stuclents and poor-houses benelltted from this institutidn and'its abrogationwould have caused widespread damaee to the Muslim com-nltrnity(2 ).

i

I

Tlrus, the principle of isti;la(, public welfarc, was used toalrprove thc institution of cash wokfs,lwhcreai"Mehmed Bir-givi, a Hanbalite, vigorously attackedj trim on the grounclstlrat caslr walcfs involved ribd so it wds rg.inst the shari'alt.In their tegal clecisions and reform nl.ururrs the 6itornunIcgists arrd bureaucrats always referrdd to ilre principle ofisti'yloh or the welfare of trre Muslini commu,,ity to keeppace rvith the needs of the society and Ctate.

to the evolution-when welfare of

i

I

Irr brief, sonre 'ulentd eviclently aclllereclary. principlc in tlre Islamic law particularlythe Muslinr cornmunity was in questionl

5

But what is more, in Islamic history, at least after a

certain period, there existed laws made and enforced ex-clusively by the sole authority of the Sultan or civil politicalautlrority And an independent source of law implied an in-dependent political authority. Indeed the fundamental ques-tion is whether or not political power as a separate entity is

a necessity in Islam. In other words, whether or not Islamicprescriptions really needed to have in force an external com-petling authority. In actuality, there were periods wlten undgrthe rule of a non-Muslim state an Islamic community and the

$lari'ah continued without having a political authority of itsown. However, in later times in Islamic history the questionwas discussed for the necesity of a temporal power, or thestate.

In still later periods, the question came up as an issue ofvital importance for Islam and the Islamic community.' In theeleventh century in particular when the Sunni Islam was ingreat danger under the attacks of the tl'i'f sects and thecrusaders the existence and all the necessary underpinnings ofa strong cliphal power was accepted as a necessity for thesurvival of Islam itself.

Ilowever, the establishment of an independent ternporalpower signifies also the foundation of an independent lawmaking authority. On the othei trana, casbs *.rr coming upfor which the., legal principles of the $lwri'ah afforded nodirect basis for solution. There were special cases, in particularin the area of public affairs, that no Slloii'authority couldproduce a proper answer, and thus, had to be taken care ofexclusively by the civil authority. Even when such Sultanic

,.rulings were interpreted as contrary to the $ltarlah they werestill enforced as necessary for the nraintenance of the civilauthority, and ultimately for the well-being of the Muslim com-munity. They were recognized under the niune of (dnfin3)or dawdbit that is, statelaws as an entirely independentdepartment of Ia." side by side with the Slni'ah. Histo-rically speaking, the parallei development of ttrr sultanic

6

of the Caliphate appears to have gained momenttrm with the

lranian Buwayhid and then Turkish Seljukid domination in

the tenth and eleventh centuries. Tlttts, while the old Sassa-

nian conccpt of state based on the notions,of absolute powerand 'addlah Ciustice) became prevalent in Islamic politicaltheory, powerful Turkish dynasties brought in an actual in-dependence of power; and the central Asiatic traditions ofbeg-ea|an (lord-Emperor) and t6r{i (lmperial Code) were

introduced and firmly established as the foundation of state

authority in the Micldte Eastern lands. In other words, in the

tenth and eleventh centuries the concept 0f itate and law in

Islamic landsundenvent a profound change in favour of an in-

dependent civil authority and its law maklng power. Turkishrulers asserted their absolute independence in the matters ofpublic authority and aszumed tfte right ito organize publicadntinistration in accordance with their own concept of state

attd larv. In fornt, suclt larvs were interilreted as Sultanic

orders on practicat matters and theoretibally neutral, or itrvas claimed never contrary to the spirit of the $Ltari'ah. Sul-

tanic orders formulating general rules constituted an area ofcivil law side by side with the $Jnri'alr, thouglt no such laws

in codified fonn reached us until the Ottonratts The new

trend found its reflection even in the books written by great

lolit,t;;;r rr nr-r'l6wardl and Ab-u N{ansfr Al Baglrdidlduring the periocl. Al-Mdwardf maintained ih. n...siiiy ofsecular power (Kuwwa al-fulnnah or an6rah) as a means toerrsure tlte inrplementation of the Shari'ah,(tanfidh ol<1.rkfi.11,

and the perfection and survival of tne Muqlim conlnlunity(al.He speaks of hirdsut al-Dfn (guardian-ship) and Sit'dsat al4ttttfi'separateiy.'ln otlter words, for the welfareof Islanr and

rlre Islatrtic comnrunity, or in Islanric temtinology nws,lal,ta,

public interest, was recognized as a principle justifying an

irtdependent political authority and its competence to ntakelaws. The argument was used again in the Ottoman times todefend the independent nature of the Sultanic authority andits independence to make Sultanic laws.

7

on the other hand, empirical theories on politics gave riseto an independent non-religious literature known as si1tfiss1ninre, naslhat ndrne, etc. which made part of ethics based onnon-lslamic sources. piyE'al-Dln Birinl's (Barni)(s ) work,tlrough not as popular as Nizdm al-Mulk's Siydsatn-anre, is a

remarkable product of this lrano-Turkish theory of kingshipand law. Barni's theory to explain the necessity in Islamicstate of the state legislation as an independent department oflaw is derived from the theory of power state as the prere-quisite of an orderly religious social life. It is argued that lorthe survival and good order of the Muslim community andfor tlre enforcement of the $laii'ah itself ^ ruler withabsolute power is a necessity. And "royal government", Barnlasserts(6), "contrary to the Islamic sunna can only be carriedon by following the policies of Kbusrau Parwiz, and the greatemperors of ancient lran". "The prophethood" he adds "isthe perfection of religion and kingship is the perfection ofworldly good fortune. These two perfections are opposed andcontradictory to each other, and their combination is notwithin the bounds of possibility" $.

"lt became necessary for the rulers of Islam to follow thepolicy of the Iranian Emperors (unbelievers in God) in orderto enzure the greatness of the True word, the supremacy of.the Muslim religion, the power of rruth, the suppression andoverthrow of the opponents and enemies of the Faith, the exe_cution of the oders of religion ancr the maintenance of theirown authority"(7). This statement about royal authority isthe key to the whole tlreory of kfurgship of Barnl Descenclingfrom Turkish noble family and a counsellor to Muhamnracl b.Tughluk Ba rnf wrote Fa tdwd-i-JahdnddrT, hinci pl es'of Go r,rr,,-ment in about 1359. According to Mohamnrad Habib, the

$ when for a fuu period-of ten years the nabi/rarill as Allah's rr6"r'D(vice'gerent) and f,lalifah (representative) exercised go\€manceand power in the dominion of his own-creation he demonstrated toall the political pundits that the combination of ris6lat and wordlygovernment was possible and that the spiritual and the mundaneflourished in his sunnah with perfection without anv contredicrinn

B

well known Aligarh scholar, Barni "is the lrst theoreticianto justify secular laws among the Musalmanr"(8 ). ActuallyIlarni's source can be traced back to the revival of olcl Iranianroyal literature of advice under Sulla-n Mallnrild chaznawi,and quite similar ideas are to be found in the-TurkishKutadgu Rilig, ("The Auspicious Knowledge"), written in107l. Apparently both works had their common source inthe Ghaznavid lran. In order to strengthen their masters'authority lranian bureaucrats were zearously focusing theirattention to the lranian theory of kingship during this period,and pandndnwh, nos.illatnfinah uterature hourished in IslamicIands particularly following this period of lranian ascendency.Even Qlrazzali, we know, wrote a treatise in the same genre.

Two centuries after piyi'al-Din Barni, another Turkishhistorian and statesman, Turzun Bey(9),'expounded a similartheory saying that "every human society, including the Isla-

. mic community, had to submit to a civil authority for survi-val. It siy|set (siyasal is based on wisdom (lihnet), he says,"lt accomplishes a perfection which resides in the verynature of man and leads to happiness in the two worlds, hereand hereafter. This type of policy is called divine policy kiyd-set-i tldtf)and theperson whoestablishes;itis called 'ndntils' $

.or in the language .of the religious men t!!tai'ah. Its founderis callecl the hophet. But if this authoriE (ndbir) rs not attlris level and is basecl only on reason (ta'birl ,a(l) with thepurpore to achieve simply ilre order of this world aswas thecasc with Genghis KJrdn it is called sulta-nic siydset (si1,6so,-,-sult&i) or irnperial ),asad (yasab-i 'ptadisttilf).

In-otherlarrguage rve call it'urf ,

i

$ htimils, meaning 'law', being an abstract n,oun, may notfor a human being. we may address him as dlri al-nowdrn'is,

'

be usedEditor.

I'The establishment of whichever of these two depends

absolutely on the presence of a king (PddiilAh). It is notnecessary to haw for every age a law maker in religion(SEri'), i.e., a prophet, because a divine law, for instance Is-

Iam, zuflices for the worldty and spiritual harmony (among

men) to the hst day. But the presence of a PddiilAh", he

continues, '.is. absolutely neces$ry in every age. Because

the worldty affairs ftnas.blal in every age need to be taken

care of, there should be an absolute authority (wildyah) indisposing ordinary affairs of this world. If his authorityceases to operate, men cannot continue to live under the

best of the conditions but perhaps.they will all perish"(I0 ).

In simple words, Turmn, in complete ag.reement with

Barani, reproduces -the tong established view in the Islamic

world that the Saibh had to depend on the presence of a

civil authority without which everything was in jeopardy. Itis to be noted that BafinI gave side by side the Iranian Em-perors and Turkish Klrans as examples of perfect kings. The

Turkish conbibutbn to the irew Islamic concept of state con-

sisted not only in the absofute independence of the Sultanic

authority but also in the interpretation of law and justice.

From the earliest times of historical record Turkish Qdi6n'ship (monarchical sray) of Central fuia was founded on a

t&iiof yatilkorimperial code of law proclaimed by the Qadi'nat the same time as his Qi'ea'-nship $. In other words, the

imperial power was believed to establish itself by the pro-

clamation of a 6;i or yasfrlc. The evidence of it goes back tothe Orkhon K6il<:Irirk inscriptions(l I ) of the eighth century

1.I

$ The imperhl hws promulgatedt u m h i -gen ghi tt- Ed itor.

by Genghis Khan were known as

10

A.D. and the practice can be observed as )ate as the reign ofthe ottoman sultin Melrmed It (r4sl-l4gr), the .onqu.ro,of constantinopie and the ,rri rouna.i of the ottomanempire. Mehrnpd II proclaimed two icdnfinndmes as thefurrdamentat laws of the reatmii'it. n;;;.i;* uoot , containedno direct shari'ah principle but emphasized the concern toestablish pilUti. institutions of the emffi--

side by side with the lranian theory of kingship the Tur-lbh,gglcept of state and law is expounded in ilre KutadguBiltgrt'), I royal advice book written for a Karakhanid sul-tan in 1070.

Kingship, it saicl, stands on the foundation of r1ffffrr( r e ).The King organizes his realm and its people through a "tdrfi""Two things"it added, "consitutute the foundation of a.realm,wisdonr and tl6r(". At another place it says ,,kingship is goodtlring, bfi t6rt is better". In the Turkish conception of statethe Q5$an's law is inseparable from the kut, that is, divineSrant gf good fortune to have kingship. The Turkish notionof the divine origin of sovereignty was readilyktentified withthe Islamic concept of sovereignty,and evidentlycontributedto the absolute character of the Sul[a-nic power in the TurkishIslamic sultanates. There is no doubt that the introduction ofthese new notions into the politically decaying Islamic worldgave a new impetus to the public life in Islam. over a timethe Sultinic larv as the instrument to reorganize Islamic stateand guarantee the inrplementation of the slnri'ah becamepaft and parcel of the Islamic culture. It rea[zed its mostdeveloped form in the ottoman empire, the most centralizedand autocratic Islamic state in the history of Islam; and thereis no exaggeration in suggesting that if rurkey today is theonly Islarnic country under a secular political system andfollows a course different lrom other lslamic states this islargely due to this ottoman background. It should be addedthat other Islamic corrrmunities under dynasties of Turkishorigin had similar experience in their history.

11

Works sucfi as Ttiziikdtl Timilri whoever be responsible

for their composition, can be linked to the old Turco-Mongol

tradition and compared 1o the (ilfinn7ame of Melrmed the

Conqueror. Also the Ayinl-A'kbait, though like Kutadgu

Bilie it mainly followed the Iranian tradition, may be put in

the same category with respect to its form and function.

As to technique of making a state-law, many of the so-

called 'urf;Jaws or l5infrns were originally the local 'urfwa'addt followed and practiced by the people for genera-

tions(r s). What the ruter did was simply to legalize thbm in a

Sultanic order. Thus, the Sultan's 'urf, or temporal power

was the key factor to convert local AdAt into laws. In the '

state organization the Sultanic power was responsible for

converting into state laws the practices and concepts which

had come down from ancient lranian and Turkish sources.

It appears that there was a prrallelism between the Mus-

lim-Turkish states founded in India and the Ottoman Empire.

This parallelism was quite natural if we remember that bothhad the same origins in Central Asia.

I tried to show how Ottomans and other Turkish states

before them were able to find solutions to the problems

occuning in the fiel.d of public interest by using laws-kirlrins

based on 'urf u'dddt and the ruler's authority. But they all

recognized the supremacy- of the $lnfr'ah.

To sunr up, in the Ottoman E,rnpire and earlier Muslirn

states there was an independent law-making activity to meet

.new situations concerning mainly public life.

Since the enforcement of the $lari'alt itself was depend-

ent on the presence o f an ulu'lqntr that is political authority,tlre 'ulentd concluded that laws necessary to consolidatepolitical power be made part and parcel of the Islamic state.

12

on the otherhand since the I I th century there were also lawsand institutions origrnating d,ectly from Iranian and rurkishtraditions which becarne prevalent with the rise of IslamicSultanates in Iran and India.

Bureaucrats in the service of great sultans presented thesepractices and notions in a series of "advice to king" fitera-ture. These played a central role not only in edifying thenrlers but also provided guidance to bureaucrats and states-men. A very extensive law-making activity, indpendent fromthe Shari'ah under the ottomans essentially followed thenotions provided by this literature. Thus in pubtic life theimportance of Kdnfrn-making side by side with the gfiari'ahcannot be minimized.

13

FOOTNOTES

l. For ldnfrn nd ldntnnllmc *s Encyclopdedla of Islom,

second editbn, vpl. IV, 556-566 (H. lnalclk).

2. Sec H. tnalclk, 77tc Ottoman Emplre, Tlrc Chsslail Ago

IJ00-1600. london: Weldenfeld and Nlcolson, 184.

3. See "Kiniin", Et2, 559-560.

4. Al4 t1ki,m al,Sul 6nTY Y a, 77 -7 8.

5. Fatdwd-yl pJhhddri, ed. Dr. A. Saleem Khan, I-ahore'

Research SJciety of Pakistan, Unlversity of hrnjeb, 1972;

for rnalysis of the next see M Habib, and Dr' Afsar'' Poltttcal rheory ol Dehll sultanate: Allahabad, Kltab

Mahal (n.d.).

6. M. Habib and Afsar,39.

7.IbId.8.Op.clt. 139.

9.The Htstory of llehmed the conqueror, Text Published

in Facstnile with English Translation by H. Inalcik and

R. Murphey, Minneapolis and Chicago: Bibllotheca Isla'

mlca, I 9?8,,Text: 7b-l 4 a.

10. /bld. 9 a.

I l. Text publistred rnd rnalyzed by Talat Tekin, A Gromnur

of OrkhonTurklc,Mouton: The Hague 1968; H' Inalcik,

. "Kutadgu Bilig'de Turk ve Iran Siyaset Nazrriye ve

Gelenekhri", ln Re.rld Rahmett Amt lcln, Ankara: Turk

Kulturunu Arasturma Enstitunr, 1966, 270 -

12. Se "Kinfrnnfme", El2 ,562'563,

13. Yusrf Khas Hajib, Wlsdotn of Royal Glory (Kutadgu

Btltg),ATurmlslanlcMlnorforhlnces.Trans'RobertDankoff, Chicrgo: The Unlversity of Chicago Press 1983.

In Persian the book has been translated under the caption

'Sd?dat ba$il 'lhtr", while Dr. Muhammad Sabir has

translated "ThtAuspicious Knowledge" (vide Hllra Cele'

bmtlotts, Aree Study Centre, Peshawar, 1981, l, 80)Edilor.

14. See my 'Kutadfu Bill& . ." mentloned in note I l,?6s-269.

15. See H. tnalcik, 'Suteiman the lawgiver and OttomanLrw" Archlvum Otlomdnlcurn, vol. l. (1969)' I I l'l14.

Contents

President of Pakistan's Message on the Oeasion Ixhesident's eadier Message xl

Foreword: Dr. Jameel Jalibi, Vice{hancellor xItIlntroduction: Dr. Yusuf Abbas Hashmi xIX

About Dr. Ishtisq Husain QureshiAbout the Authors

Lectures by Dr. Halil Inalcikl. Sanfrn snd The Shart'ah2. Islamic Caliphate, Turkey and Muslims

in India

Lectures by Dr.Muhammad 'Abd al-Ra'ufI. AlQur'an, the Abiding Code

2. Sunnah md lladigfiand Their Importancein Modern Context

Lectures by Dr. Isma'il Rsji al-Faruqil. Viability of the Islamic State2. Structure of the lslamic State3. Functions of the Islamic State

A page from Tashqand *py of muElaf 'U!!m:inlappearing against page 59

A page from Catalogu e of nnsdltf *nb' appea-

ring against page 6l

Facsimile of the letter of Dr. al-Faruqi appearingagainst page ll2

XXVII

XXXI

I

t4

35

70

l12

r28

ls2

Dr. rshtiaq Husain *::ll'ff"o,rlf"""rsity or Karachiunder the authority of the Uriversity. ,rrCopyright rese.vered. No part of thls bookmay be transfated or reproduced i"

-;;;form, by print, photo prilt, ,icrofifm orany other mearui, without the writtenpermission of the University of Karachi.

FIRST EDITION TIET ,

Sofb tolaDrl n e,?Fl-.Abroorl t 6llurtl I nle rrd f,s Ofl. Abroacl I I

I

Priec:

Bureau of Composition, Compilation end frarntatioqUniversity of J(arachi,Karachi-f2, pakistan

PRINTEDAT@URDU BAZAR, XNNECHI

*+9lcfll9lll-/*4q#E,i$&#t'&

@(i1,:*S e,$trfi1

"Certainly We have set thee (O Muhammad)on a clear road of (Our).Commandment;

so follow it, and follow not the whims ofthose urho know not':

- Surah alJathiYah, aYat 18

, <t7P 51

HDr. l.H.Qureshi Memorial Lectures

WARI%H,UMMAIH

r andKHILAFAH-

Lectures by

Dr. Halil InalgikDr. Muhammad hbd al-Ra;uf

Dr. lsm5'il Reii al-Fii'rfiqT

edited bY

Yusuf Abbas Hashmi

Dr. fshtiaq Husain Qureshi GhairUniversity of Karachi