The British Resident in Delhi, the Assistant Resident, and the Commandant of the Escort, escorting Mughal Emperor Bahadur Shah Zafar II's procession to celebrate the feast of Id. 1843. Thomas Metcalfe/Wikimedia. Public domain.
A few weeks ago, the Shura of the Pakistani Taliban issued a fifteen point summary of its demands to the government of Pakistan. Foundational to the items on the list is a conception of the Sharia as the only legitimizing grounds of a state.
That the legitimacy of a Muslim state is conditional upon any legal tradition is a modern inversion of the historical stance of Muslim scholars and scholarship on this issue. This conception is in fact paradoxically an entirely colonial exigency that has backfired in the context of the modern Muslim nation state; it is a classic case of modernity undoing itself.
The upshot of the details to follow is that, if Pakistan wishes to survive its abysmal crisis, rather than arguing about which law must be implemented, it must reconsider the terms of the dialogue about the status of law in a Muslim-majority state. Below I offer two archival cases (among many) as evidence of my claims.
The recasting of a legal conception
In a letter of 1855, written to the last Mughal emperor, Bahadur Shah Zafar II (d. 1862 CE), the leading scholar of India, Fazl-i Haqq Khayrabadi (d. 1861) states the following:
“This land’s people, be they Muslim or Hindu, are farmers, laborers, merchants, stipendiaries, scholars, and beggars…. For as long as the government was under the control of kings and rajas, there was never any shortage of means of livelihood… But since the British have come to hold sway, the situation has become such that the populace is in dire shape. This is so because all but a few means of livelihood have been closed off by the new government. And even now, as the skeleton of governmental organization is transforming, these means seem to be disappearing…. The government has taken control of all commodities, such as cloth, wool, horses, etc. It brings these items from England and sells them in all the cities of India to make profit, leaving no possibility of profit for its own citizens…. In addition, according to the laws of 1801 and 1803, the government had stipulated that no non-kharaj land will be confiscated, regardless of its status. Yet, now without any further inquiry, these lands have been confiscated in every district…. Taxes have been increased on the poor farmers to the point that they have left their lands and have taken to begging… Despite all these troubles, we formerly received the command from Sir Charles Metcalfe [d. 1846 CE] that the poor should perform the function of guards at neighborhood checkpoints. This had never happened in the days of the sultans, but the command of the ruler is not to be disobeyed…. and so we complied… The government, despite its unwise and unjust objectives, is legitimate, because it is agreed to be so... As such, its particular commands and laws are also legitimate, though these do not correspond with the Sharia in a number of ways.”
This foregoing excerpt from the letter suggests the deep despair that Khayrabadi felt, largely for the economic situation of Indians under British rule. Following the litany, however, he did not promote an adverse reaction to the government; rather, he called its actions legitimate. This legitimacy and the concomitant legitimacy of the government’s commands and laws seem entirely distinct from and independent of the religious law. In other words, it is not the imposition of the Sharia in any form that made the government or its laws legitimate; as a matter of fact, it seems that, for Khayrabadi, no particular legal system is legitimate as such. It is the very fact of being the recognized political power that makes the government and its laws legitimate.
Mughal emperor Bahadur Shah Zafar II in May 1858, "in captivity in Delhi awaiting trial by the British for his support of the Uprising of 1857-58" and before his departure for exile in Rangoon. This is possibly the only photograph ever taken of a Mughal emperor. Robert Tytler and Charles Shepard/Wikimedia.Public domain.
Two years later, Khayrabadi issued a famous fatwa of jihad against the British that was the major catalyst for the famous First War of Independence. As far as we can tell from reports, the question of Sharia was never raised in the fatwa. In his The Indian Revolution, he states that the duty of any legitimate government is to deliver on the freedoms it and its laws guarantee to those living under them. In the case of the Muslims, the government and laws of the British had guaranteed religious freedom, here made explicit by Khayrabadi in terms of the freedom to (1) propagate religious knowledge via educational institutions, such as madrasas, (2) dress according to the guidelines of the religious law, (3) perform circumcision, and (4) sustain and establish commercial relations according to customs. Such promises were not kept. And it was this failure—not the failure to implement the Sharia, but to grant promised freedoms—that made the government illegitimate.
It is interesting to note that, for Khayrabadi, the Sharia is a particular system, distinct from the government and its laws, guaranteed by the legitimate government and its laws as a kind of negative freedom; it is not even subsumed within the body of laws of an existing government and it does not seem to be statutory.
This statutory nature of the Sharia begins to emerge, paradoxically, in the colonial British courts. It is this legacy that led to a reimagining of the role of Sharia and that now plagues the modern Muslim nation state.
Here is an item from the mountain of historical evidence that lends further support to this position. In 1921, another fatwa of Jihad was issued by the Allamat al-Hind Mawlana Muin al-Din Ajmiri (d. 1938). At the end of this scholar’s trail, the British magistrate had the following to say:
“[You] have argued that the law guarantees freedom of religious exercise. [You] have further stated that the principle of non-interference in religious matters is mentioned in Queen Victoria’s [d. 1901] announcement of 1857. Thus, when religion commands a person to perform an act and when such an act is against the law, the law cannot declare such an act to be criminal….
[Yet] if there is a principle in the legal history of England greater than all other principles, it is that the law itself is the final and inevitable guarantor of the will of the ruler. No announcement of any ruler can abrogate the law.
…There is a written constitution in America. There, the courts may refuse to implement a law posited by legal scholars, if this law contradicts the written constitution… There is no written constitution in England. Thus, there is no point of reference other than the national law that is accepted by the courts…. so how can it be that the mere announcement of a ruler can lead to the abrogation of the law?...
…Similarly, the idea that when the law conflicts with religion one should not follow the law—this idea is nothing other than to provide a point of reference higher than the law… it is clear that since this court is based on the law, no proof can be put forth to make the law itself obsolete, so as to neutralize the very effectiveness of the law… No religion or ruler is a principle higher than the law, so as to make it obsolete….
…Then religious exercise, even as a most general type of freedom, still presents itself as something particular [i.e., as particular actions] and is part of the set of specific legal activities under the law….”
Like Khayrabadi, Ajmiri seems to hold that the legitimate ruler, Queen Victoria, has guaranteed certain basic freedoms and that the positive laws of England cannot override such a guarantee.
In other words, the law is legitimate via the ruler, who is superior to it, not the other way round. The magistrate equates this way of legal conceptualization to the American system, where the constitution (an analog of the ruler) is superior to the laws and is the foundation of the legal system. He then points out that the legal system of England, by contrast, does not recognize any principle superior to the body of the law itself. Indeed even the religious laws are part and parcel of the body of the law. As in the case of Khayrabadi, so here too the magistrate does not consider religious exercise either as a general negative freedom granted to the citizenry or as something falling outside of the scope of the law. Rather, religious acts are part of the set of legal acts and, as such, they fall within the vast body of prosecutable actions judged in the court.
Effectively, this means that for leading scholars, Islamic law and religious practice fell within the undefined domain of negative freedoms guaranteed by the legitimate state and ruler, whose laws may well be altogether distinct. The legitimacy of the state was not contingent on the nature of the law, and Muslim legal traditions, in the context of organized society, were not statutory or codified. It had no power to grant legitimacy.
Rather and conversely, it was itself guaranteed by a legitimate state. The categorization of Islamic law and practice as part of the legal system of the state or as something superior to the state (i.e., as a system that grants legitimacy) seems to be an invention of the colonial courts (here one may recall the concerted efforts of the imperial administration to translate and codify Islamic law and to train British subjects as orientalist administrators—the magistrate is a prime example of such a functionary). Once this legal system came to be reduced to the religious law itself and as this different mode of legal conceptualization was widely embraced, the legitimacy of the state and political rule naturally became dependent on such a religious law.
The debate at this stage, therefore, should not be about which law—secular or religious—should be implemented in Pakistan. It is the framework of the debate itself that needs to be recast. What is the status of any law in a Muslim majority nation?
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