It doesn’t take long for one sitting on the sidelines observing the state of Muslim scholarship and its engagement in the political arena to note the widening abyss between two camps. On the one side, are scholars wedded to the state’s apparatus, issuing edicts that align with visions of the ruling (dictator) class and maintenance of the status quo under the rubric of “avoiding strife”. In opposition, independent scholars who may or may not be members of scholarly bodies that are unaffiliated with any government. Both sides have their arguments and both can draw on traditional sources to back their positions. Whilst this may be interesting to evaluate from a theoretical standpoint, or bewildering for the lay Muslim looking for guidance, aside from the practical political ramifications borne out of adopting either position, there is a more important consideration to note. Namely, how will the association with government impact a lay Muslim’s perception of a scholar’s authority? To ask the question more directly, what authority does a scholar have with Muslims if their position of authority is through appointment by the state?
One may disagree with a scholar who issues an edict that aligns with the goals of the state but not question the intention of the scholar if he (or she?) is independent. However, not only will that edict be dismissed if the scholar was appointed by the state, given the now blinding conflict of interest, the entire body of work from that scholar will also be negated as he inadvertently adds fuel with his partisan edicts, which function more as propaganda tools than rulings worthy of serious consideration, to the fire of the civil strife he was trying to put out. In an ironic twist, the proclaimed attempts at promoting peace can turn into agitations or worse; a cause for Muslims to lose trust in the entire tradition and belief in Islam itself as a transcendent guiding source.
The following is a passage from Noah Feldmans 2008 book The Fall and Rise of the Islamic State. The points raised in it by Feldman are echoed by Wael B Hallaq in his 2012 book The Impossible State where he also discusses the balance of powers between the ruler and the scholar. The choice a Muslim scholar must make in our current times is no longer subject to the classical debates on the permissibility of engaging with rulers. Rather, it is whether such a scholar maintains his or her independence, and therefore authenticity, or become part of a system that claims transcendent sovereignty for itself above all else, including Allah ﷻ and the Beloved ﷺ.
_ _ _ _ _
In pre-Ottoman Sunni constitutional tradition, the ruler appointed judges from among the scholarly community, but the power to control the content of the law remained with scholars who often did not hold any official government function. These nongovernmental scholars shaped the content of law through legal treatises and teaching, but most centrally through the fatwa, issued in direct reply to a legal query by a judge or a party engaged in an actual case. As the Ottoman legal system developed, the imperial court went beyond the traditional practice of appointing judges and began in addition to create the novel position of the official mufti, or fatwa-issuer. The post may have begun as honorific merely, but in time it took on legal significance, and the fatwas issued by the offical muftis came to have a binding character. (Traditionally, in the pre-Ottoman model, no one was bound by a fatwa and it remained for the judge to decide among competing fatwas should they exist on a question.
The grand mufti also took on the job of authorising others to act as lower muftis. Eventually a substantial legal bureaucracy was built up around the shaykh al-islam, as the grand mufti was called…
The bureaucratization of the post of grand mufti was paralleled in the development of the rest of the Ottoman legal system. In place of the informal system of scholarly education and authorisation, there arose a formal career path with designated steps that a scholar must follow to hold government office. The legal functions of the scholarly community came to be carried out by scholars who were entrenched within government-sanctioned institutions. The law, then, increasingly came within the scope of the state; it gradually lost some of the autonomy it had preserved under the classical system in which scholars were effectively independent unless they assumed judicial office.
This slow process of incorporation into the state’s apparatus was a risky strategy for the scholars. [It] paved the way for the epochal moment of Ottoman reform in which the Sunni scholars were stripped of much of their jurisdiction and lost their capacity to counterbalance the ruler…
…By allowing themselves to be brought into the expanding state apparatus, the scholars kept themselves – and the shari’a for which they stood – relevant to the imperial enterprise. They brought the shari’a with them to newly conquered lands, in the Balkans and beyond. They kept the Ottoman sultans in the Islamic fold. In short, for centuries, they kept official Sunni Islam alive.
What was in it for the sultans was the power of legitimation that the scholars could and did provide. The Ottomans, non-Arab Anatolians who treated Arabia as a minor province, embraced this Islamic legitimacy enthusiastically. Beginning with Suleiman, the Ottoman sultans had themselves declared caliphs, notwithstanding the express constitutional requirement of Arab, Qurashi decent, which they lacked. As caliphs they assumed (theoretically, at least) the mantle of responsibility for preserving the shari’a. The scholars were proof of their fitness to the task. The scholars thus enabled the Ottoman sultans to claim for themselves the leadership of the entire Sunni world, a claim accepted at face value by Western observes right up until the end of the caliphate and, more remarkably, taken seriously for much of Ottoman history y most of the world’s Sunnis.
As the price of this legitimation, the scholars insisted upon some measure of executive limitation. Islamic law was in principle the law of the empire – and that meant the sultan was subject to the law, not above it. The sultans’ unprecedented power enabled them to introduce unprecedented bureaucratic institutionalization of the scholarly class, but the sultans nevertheless accepted the yoke of the law as interpreted by the scholars – a position of subservience to law otherwise unheard-of in the annals of great empires.
__________________________________________________________________________
For in-depth discussions with Mohamed Ghilan on literary works such as the one featured in this Vignette through an Islamic perspective, join Al-Andalus Book Club.
AL-ANDALUS BOOK CLUB
An online book club examining contemporary works through an Islamic lens
JOIN TODAY