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Rebellion and violence in Islamic law

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                                               Rebellion and violence in Islamic law

              In the first chapter of the book Rebellion and Violence in Islamic Law El Fadl (2001) discussed about the basis regarding the “absence of a right to rebellion in Islamic legal discourse” (p. 8). El Fadl stated that the strict qualifications for the position of Caliph which could be assumed through a proper contract and allegiance demands the caliph to be pious and just and to enforce the Sharia as well as strict obedience that removed rebellion and violence in Islamic law.

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              As he traces the historical notion of rebellion and violence in the Islamic law, El Fadl cited two arguments namely: the quietest-authoritarian and the activist-rebellious tradition. The quietest-authoritarian which was a law based argument forbid rebellion and demands absolute obedience even if the ruler is unjust, while the activist-rebellious tradition or the realism-based trend insisted that there was no law of rebellion in Islam and that Muslim jurist simply confronted any political reality and “forbade any rebellions against an established ruler” (p.

13). They asserted that the ruler should be removed by force if he is unjust.

              Aside from these historical arguments however, El Fadl cited another argument that challenges the issue of legitimacy and the authority in Islamic history. Advocated by Aziz al-Azmeh, this argument insists that much of the contemporary discourse on Islamic thought is ahistorical. He argued that Muslim jurist were neither realistic nor idealistic but simply legalistic (p. 15). The weight of this argument was that it places emphasis on God as the supreme authority. Al-Azmeh claims that jurist denied the rulers titles such as khalifat Allah (the caliph of God) which ascribed submission and obedience to the ruler alone rather than to God. The obvious implication is that this kind of authority can either be disobeyed or removed for some valid ground. In the general sense, chapter 1 deals with the argument regarding how Muslim jurists understood and dealt with the issues of power and authority (p. 20). The chapter simply revolved on the main argument whether an unjust ruler should be obeyed or disobeyed. El Fadl however, acknowledged Muslim jurist role as part of “corporate reality that was concerned with order and stability” (p. 29). In the end, the author yielded to the opinion that “unjust ruler is the real rebel” (p. 30) and suggested an option to “weigh the evils of compliance and disobedience”

Chapter II.  The Doctrinal Foundations of the Law of Rebellion

            This chapter presents some ideas that are difficult to comprehend given some conflicting meaning of terms. According to El Fadl, aside from Muslim struggles with unbelievers, there are three types of armed conflict that Muslim is fighting: (1)The apostates, (2) the brigands and, (3) the rebels. Both the apostate and the brigands had tougher penalties of death compared to rebellion which has a narrower sentence. According to El Fadl, this kind of attributing doctrinal significance is grounded on two main sources, the Ali b. Abi Talib and the Quran. That is, tradition and the Quran (p. 34). Tradition held that after Ali’s victory with the rebels, “he spared the lives and property of the defeated soldiers and ordered that no property of the rebels would be kept as booty” (p. 34). This along with Quran became the legal source of the law of rebellion.

            Most often however, it was the verses of Quran that serves as the legal and doctrinal source in the settlement of conflict. But El Fadl cited that it make a difference when the other party committed transgression in which everyone would be enjoined to fight against that individual (p. 38). El Fadl clearly noted that most of the sources of legal and doctrinal basis for judging conflict were mostly past situational conflict it self which was the reason why punishment for rebellion is lenient compared to apostasy and brigands. El Fadl went on to say that the reason why God allows companion fight each other was simply to “to teach Muslim the law of rebellion” (p. 44).

            Although the author discussed other topics such as possible punishment such as; execution, crucifixion, severance of limbs and so forth, these topics and the arguments boils down to the doctrine that the punishment for rebellion was more lenient compared to other serious offenses (p. 48). In general, the whole chapter merely presented various conflict situations that have become the legal and doctrinal basis. This conflict situation may be comparable to statutes and other rulings that served as basis for judgment of case in a non-Muslim situation.

Chapter III. The Historical Context and the Creative Response

            Chapter 3 opens with a clear emphasis on the distinction between fighting rebel and fighting the apostates in what he calls as fitna and bugha. He calls wars between Muslims as “theological wars versus political wars” (El Fadl, p. 63). He emphasized that poetical wars are fitna and prohibited by God and the theological wars are bugha wars and legal and recommended (p. 63). However, as chapter 3 discussion goes on, El Fadl noted quite a number of discourses particularly in response to the doctrinal/legal precedent exemplified earlier by Ali. One such discourse was espoused by Yahya which contended that the conduct of Ali with the bugha was “highly improper” (p. 65).

            In response to various discourses in Ali’s benevolent conduct to his enemies, El Fadl cited that his followers had actually benefited from what Ali has done to his enemies as he effectively set a precedent for Muslims to follow even after him. According to the author, the death of Ali in the Battle of Karbala in 680 drew strong sympathy from many Sunni jurist. El Fadl noted that moral impact of Ali’s rebellion against the Ummayads “far outweighed its political consequences” (p. 8). However, as far as the author is concerned, the death of Ali was followed by a series of rebellion, killings, and rampaging of the city. El Fadl spends a few pages narrating the various rebellions against the Umayyad which were all failed and had caused countless lives. It was not until the Abbasid rebellion that the Umayyad was defeated. But even this was followed by enormous killings particularly on the Umayyad clan by the ruling Abbasid dynasty.

From the way El Fadl presented the rebellion after rebellion and the corresponding atrocities against the rebels implies that Ali’s legacy of benevolence to the enemy was over.  Though the later rebellion produced gainful benefits for the Muslims in general in view of the reforms initiated by the ruling caliph particularly that of Al-Mahdi who “followed a policy of reconciliation…” (p. 79). Yet, is quite difficult to see creative response except perhaps on the initiative to return to Quran as the standard for moral ascendancy in the time of al-Ma’mun in 218/833 (p. 90). This initiative though was viewed as attack against jurists who were pretending they guardians of the truth but in reality, they were corrupt and hypocrite (p. 90). Wrapping up all the responses towards rebellion, Al Fadl may be right to say “The more the corporate identity of the jurists and their culture developed, the more they become vested, not necessarily in the political regime in power, but in the cultural institutions of society, and in the corollary need for stability” (p. 99).

Chapter IV. The Rise of Juristic discourse on Rebellion: Fragmentation

            As could be observed earlier, jurists plays an important role to the changing political and social needs. In this chapter, El Fadl noted the imperative of juristic culture “which imposes its own suppositions and logic, and functions within the mandate of its own authoritative success and processes” (p. 102). The emergence of a law profession, jurist remains important towards the discourses in rebellion. One of the argument of the jurist is concerned about took place in actuality, in which, the author noted that the juridical culture “often responds well after the fact” (p.  106). While jurist was more concern on the issue of conduct, the author cited that the ninth century presented Muslim jurists with “very different problem—one that related more to the area of constitutional criminal law” (p. 107). The emergence of juristic discourses for rebel often wished to advocate order and stability, but the participation of many jurists in rebellion they needed to deal with the counter-tradition on obedience.

            One of the most notable jurist arguments was whether rebellion was to be declared a sin. El Fadl argued that given the rebellion is sin, it would be complicated because there would be a need to prove that the honored fore fathers did not commit sin (p. 120). This argument breeds other arguments because the duty of blind obedience for instance requires obedience even if the ruler is unjust. El Fadl however argued that “obedience is due only in what is good and just” (p. 121). While the juristic discourses include other arguments such as the legal question of who is a legitimate rebel in view of the earlier tradition of benevolence towards the enemies as well as the on the ground by which the rebellion was orchestrated. El Fadl pointed out that many of the rebellions were actually staged not because the rule was unrighteous or unjust, but because the rebels simply wanted the powers in their hands.

Apparently, the author depicted in this chapter that many of the rebellions that were fought mostly stemmed from vested interests the reason that almost all of them were a failure. Thus El Fadl contended that obedience should be given only to just ruler and never to unjust and unrighteous ruler

Chapter V. The Spread of Islamic Law of Rebellion: from the Fourth /Tenth to the Fifth Eleven Curies

            El Fadl’s thesis on this chapter is grounded on sociological and political changes. “He stated “changing sociological and political circumstances, cumulatively and eventually, affect juridical discourses and results in incremental modifications of law (p. 162). One such issue affected by these political changes was the distinction between banditry and rebellion. Under this new discourse, the questions that require answer include who is a rebel, what is a rebellion, and how rebels should be treated (164). From these initial determining questions, responsibilities on destroyed properties as a result fighting can be established especially in terms of the intent of the offender and of who should be liable (p. 170). Unlike in chapter four and five, this chapter rather reflects on the previous doctrine of benevolence to enemy, asserting that once rebellion is over, “the permission to fight or kill ends” (p. 171). The arguments in this chapter revert at once to the argument in chapters two and three regarding the issue of benevolence to the enemy although this time was not just about property but about the right to live by the prisoners. Apparently then, the context of rebellion is either to overthrow a corrupt ruler, or to take control of the government (p. 191). Either way, the Hanafi jurist insists that rebels should also have some liability on destroyed properties. The Hanafi jurist which were the advocates of establishing the liabilities of rebels however were not at all unified but they all agreed that this liability is limited if the destruction is committed prior to the fighting.

Over, all the issues raised by El Fadl in this chapter is concerned about the legitimacy of rebellion to which most arguments asserts that the rebels are not be held liable for offenses committed or for life or property destroyed (p. 199). Most of the schools of thought mentioned by El Fadl that argued on the issue of rebellion however, has become extinct and did not survive. But those that survived, particularly the loyalist school of though argued funeral prayers should not be performed for dead rebels because they are unbelievers. Finally, chapter five ends with the manuscript that argues that bughah or the fight against the unbelievers should not be collectively liable for life or property destroyed during the course of the rebellion.

Chapter VI. Rebellion, Insurgency, and Brigandage: The Developed Positions and the Emergence of Trends

            As mentioned in chapter five, rebels have regarded as unbelievers El Fadl’s discussion in chapter six echoed earlier discussion that a ruler should be obeyed even he is unjust. However, this idea has been rejected by the undefined public. One of the most prominent advocates of blind obedience to unjust ruler was the jurist Ahmad Al-Wansharisi. While there were diverse views on this subject among jurists, the main emphasis lies on the argument advocated by Al-Wansharisi. But this argument was not about pros and cons rather it was simply used as premise for further argument such as the argument whether the rebels are not be held liable for life and property destroyed during the course of the rebellion, and that the may not be executed and their properties may not be confiscated.

            In support of Al-Wansharisi were the traditionalist jurists that emphasized that regardless of the any case, the ruler must be obeyed. Despite of this strong assertion, El Fadl noted that “the traditional trend does not criminalize the act of rebellion (p. 241). The idea behind this was to repel the danger and not to destroy them. The discussions in chapter 6 simply revolve around the context of whether or not rebels are guilty of rebellion or not or whether rebellion is banditry. Middle discussions of chapter five however were more in-depth as El Fadl provided more interesting and conflicting opinions among different jurisprudence. This includes the view of Al-Lakhmi, the Maliki jurisprudence, and of course Al-Wansharisi. El-Wansharisi promoted the view of beating and forcing certain group to abandon their beliefs was not an anomaly (p. 268). the Maliki trend on the other hand, emphasized on blind obedience to the ruler. The main thesis of the discourses on rebellion however continued to undergo various revisions. One such distinguished revision was initiated by the contemporaries of Ibn Taymiyya which according to El Fadl emphasized on the “technicalities and details of the law of rebellion. With various revisionist efforts and the juridical discourses on the subject of rebellion, the doctrine of rebellion was strongly and carefully formed.

Chapter VII. The Developed non-Sunni Positions

            Chapter seven emphasized on the context of obedience on the true ruler to which the most authoritative according to El Fadl was the Imami approach to rebellion. According to this approach, the role of the Imam was centrist because while they viewed rebellion against illegitimate rulers as outlawed because it was perceived as ineffective and harmful, yet Imami jurist “also prohibited assisting unjust rulers against rebels” (p.  296). In this section, the author depicts the wisdom of Ali towards the policy of benevolence he has applied to his conquered enemies. According to El Fadl, “Ali knew that his party would ultimately be oppressed and persecuted and he wanted to set a precedent that would protect the Shi’a. In this chapter also, El Fadl clearly distinguished fitna from bughah defining the bughah as “those who rebel against the just ruler. The author admits the expression “a just ruler” is vague thus, he did not discount the right to rebel especially in the contest of fitna but asserts that certain condition must be met. El Fadl stated, “there fore one should not enjoin the good or forbid the evil against unjust ruler unless there is greater probability of that doing so would be effective and would endanger the enjoiner’s safety or of the others’ (p. 296).

            The main context of discourses however, in this chapter is that unjust ruler should not be assisted in committing injustice and the rebellion against the just ruler should be viewed as being unbeliever. This must be the context of the legitimate and illegitimate authority of the ruler. This discussion also addresses another particular issue associated with rebellion, the banditry. While El Fadl cited that jurist did not make any distinction between banditry and rebellion, however, based on the legitimacy or the illegitimacy of the authority of the ruler, it appears that this issue has been resolve. That is, rebelling against the legitimate authority is banditry. This is clearly reflected in the jurist’s definition of banditry that goes, “the causing of corruption on the earth by terrorizing people through the use of the threat of martial arm” (p. 301). The discussion on this issue however even went further as to ascribing defiance to legitimate authority as sinning against God (p. 302). This was especiallyadvocated by Zaydi jurists who asserts that the iniquitous by defiance “does not have recognizable justification for sinning” (p. 302).

Chapter VIII Negotiating Rebellion in Islamic Law

            Chapter eight begins with a different topic.  The author’s approach in this discussion was certainly more interesting as the author was putting in new ideas and topics not discussed in the previous chapters. Among this subjects were what El Fadl calls “the juristic culture” which according to El Fadl construct its own rituals, habits, paradigms, and symbolisms and its own domain of truth” (p. 322). While this jurist culture seemed to be a corporate entity, Ei Fadl was aft to clarify that not all legal doctrines are the product of the legal culture and they do not serve the interests of the members of this legal body.

            El Fadl pointed out that this jurist culture serves as the means by which to reexamine the doctrines inherited from the previous discourses as well as reconstruct the discourses that are vital to the formation of Islamic law in particular. The author contends that the accepted scholarly view on the discourses on rebellion and violence in the Islamic law has achieved little, in view of its failure to see the details of the legal culture; the author asserts that this was not the case with the discourses in rebellion. Muslim jurists argued that a “a just ruler should be obeyed, but that those who rebel are not dissolute or evil” (p. 325). In view of this, El Fadl noted that Ali’s conduct were a good source of wisdom for the jurists.

            Apparently, El Fadl discussion was now on the intellectual approach as he now draws ideas that were product of revisionist efforts. That is, the author in this chapter uses his own concepts of the entire process of discourses on rebellion (p. 327) as provided detailed discussion of the various topics he discussed academically in the last two chapters.

Analysis of the Book

Revision and violence in Islamic law particularly discussed on the historical development of the Islamic law as well as of the juristic contribution, and the various rebellions. From the way it looks, the Islamic laws were based on the actual situations wherein the lessons drawn from those circumstances along with the verses of Quran form the basic foundation of the Islamic law. The jurists’ contribution to the historical development of Islam was significant, in the sense that their judgments on various situations served as precedent towards the formation of Islamic laws. However, the various discourses were often confusing in view of the narrow distinction of some of the discourses especially in the context of fitna and bughah.

The role played by various rebels in the rebellions has no doubt provided sufficient lessons that could appropriately become statutes that form the backdrop of the Islamic law. The writer simply used narrative and historical approach yet he was able to present the ideas behind each group debating on the issue of rebellion. However, the discussion on the legitimacy of authority provides an interesting idea especially in the context of obedience. El Fadl now sees things regarding the discourses on rebellion in the context of refined thoughts, thus he was more profound is discussion as well as concise and more analytical of the issues he was discussing. This was clearly reflected in his approach particularly in chapter seven and eight.

            El Fadl ‘s discussion of the first six chapters was simply descriptive of the historical development of the Islamic discourses especially in terms of rebellion but his discussion of the last two chapters, was certainly academic and scholarly.

Reference

El Fadl, K.A. (2001) Rebellion and Violence in Islamic Law UK: Cambridge University Press

 

Cite this Rebellion and violence in Islamic law

Rebellion and violence in Islamic law. (2016, Nov 15). Retrieved from https://graduateway.com/rebellion-and-violence-in-islamic-law/

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