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Betrayal of the Inheritance – Contemporary Muslim Scholars and the Jurisprudence of Capitulation

Numerous well known scholars have become interlocutors for the current regimes across the Middle East and Muslim countries, forsaking leadership of the oppressed in the name of a wisdom they claim monopoly over, promoting a perversion of normative Islamic thought under the guise of a traditional Islam that they have ceased to represent, if they ever did.
“The scholars are the inheritors of the Prophets”
Much has been written, by scholars and others, regarding the prohibition in Islamic jurisprudence of intentionally killing civilians. This has generally been considered an abuse of differences within the Islamic tradition regarding the rules and conduct of armed conflict (jihad). Consequently, those groups and individuals who carry out and subsequently try to justify such actions with reference to that tradition are cast as perversions completely outside of the bounds of legitimate Islamic rulings (ijtihad). This is unsurprising, as generally the underlying cause for such acts are emotional reactions to the circumstances rather than religious, meaning that the attempt at justification was secondary.
There is a separate strand of thought that belongs within a discursive tradition of support for the current regimes and governments across Muslim countries, which is also detrimental, destructive and divorced from the Islamic tradition. Just as those who justify killing civilians dress their acts in the robes of jihad, there are those who justify submission to and promotion of the current regimes across the Middle East and other Muslim countries using the dressing of what they would claim is the Islamic tradition regarding rebellion. Through their misrepresentation of this tradition, they contribute to helping the current regimes maintain their grip over the society while removing the space or any avenue for dissent. While they may claim to be upholding a Prophetic tradition, by forsaking leadership of the oppressed and instead becoming promoters of the status quo they thereby perpetuate oppression. They bear some responsibility for the bloodshed which can occur when others within society, who feel the brunt of that oppression and have lost trust in the scholars claim to Islamic authority,  consequently resort to indiscriminate violence in the perceived absence of practical alternatives.

This jurisprudence (fiqh) of perpetuating the contemporary status quo, what can be referred to as the jurisprudence of capitulation and submission (fiqh al-istislam), attempts to derive its legitimacy from a strand of opinion held by some Muslim scholars throughout history that favoured unity and stability over rebellion against a tyrannical ruler. What began as a minority view consolidated over time under the justification that maintaining overall unity of the Muslim polity (khilafa, imama) was more important than the suitability of the leader of that polity. This strand became the mainstream position in later periods, but neither was it the sole position nor the simplistic caricature of submission to authority that it is being misrepresented as.
“And do not dispute (fight) with those in authority over power, unless you see a clear proof of sin/ of disbelief”
The differences over when rebellion against the ruler was justified centre around 
a) what constituted a legitimate ruler in the first place,
b) at what point it was permitted to rebel against a legitimate ruler,
c) a form of cost-benefit analysis of rebelling against that ruler.

Auxiliary to this were the questions of
d) what was the view regarding those who decided to rebel when others adopted patience, and
e) what was the attitude towards the rulers taken by those who adopted patience rather than rebellion

Traditional normative Islam considered that the ruler was delegated by the society to rule them according to Islamic rules and norms. This delegation was to be carried out via the pledge of allegiance (bay`a), which was a contract between the ruler and the ruled that so long as the ruler abided by and implemented those Islamic rules and norms, they were to be followed and there was no justification for rebellion. This contract was to be entered into willingly by both sides.

If such a ruler had taken this bay`a by force, or was in origin an un-just person before taking the bay`a, there is a difference among scholars whether they could be considered legitimate thereafter. Those who did not recognise them as legitimate considered it obligatory to remove them, by force if necessary, and establish a just authority which had the consent of the people.

There is a divergence of opinion regarding when rebellion against a legitimate ruler is mandated – in other words, to rebel against someone who was originally just and appointed by the society via the mechanism of a consensual bay`a. Justification considered legitimate ranges from personal corruption such as drunkenness or other behaviour contrary to personal Islamic laws, to not enforcing Islamic rules and norms in public, to implementing rules contrary to Islam. While there were differences upon what justified rebellion if the ruler’s actions remained short of open disbelief in Islam, all agreed that when the ruler did an action that took them out of Islam, or contradicted fundamental Islamic beliefs openly, that rebellion was mandated.

The earlier generations were much more permissive as to when rebellion against the legitimate ruler was justified, with some companions fighting against the fourth caliph and son-in-law of the Prophet, Ali, due to their demands that he investigate and punish the killers of the third caliph, Uthman. It is clear that the cost-benefit analysis of rebellion was much more weighted towards what they considered were the benefits, namely the establishment of a more just rule. Within a generation, Ali’s grandson Husain refused to accept the authority of Yazid, resulting in another war among Muslims and ultimately led to the events of Karbala. Further similar wars followed, such as the rebellion of Zayd bin Ali which was supported by the Imam Abu Hanifa.

Ibn Hazm writes in al-muhalla that the opinion that it was obligatory to physically remove a corrupted ruler by force was held by the mother of the believers Aisha, as well as by Talha, al-Zubair, Husain bin Ali, Abdullah bin al-Zubair among several other companions and the subsequent generation.

Abu Bakr al-Jassas mentions in his Quranic exegeses “and (Abu Hanifa’s) school of thought was well known to support fighting against oppression of despotic rulers

Abu Hanifa was not alone among the founders of the main four schools of thought within Sunni Islam to support rebellion against an oppressive ruler; it being the opinion which has been attributed to all four. In his history book, al-Tabari writes about how Imam Malik supported the rebellion of Muhammad bin Abdullah bin al-Hasan against the caliph al-Mansur – explicitly stating to those who came to him seeking advice about joining the rebellion given that they had already pledged themselves to al-Mansur – “You did so under duress, and there is no (validity for the) oath taken by anyone under duress”, giving a direct permission to join the rebellion.

With respect to the remaining two heads of the major schools of thought, al-Taftazani wrote “And according to al-Shafi`i, may Allah have Mercy upon him, the ruler is removed due to sinfulness and despotism”, while Qadi Abu al-Hasan related from Imam Ahmad that “Do not answer to or show respect towards those from among them (leaders) who calls to innovation, and you should remove them if you are able to”.

After the first four to five centuries of Islam, the majority position became more restrictive. The main justification was the belief that maintaining Islamic unity under a corrupted or oppressive legitimate Muslim ruler outweighed the strife and bloodshed (fitna) that may result from any rebellion in an attempt to replace them. It was in this way that the cost-benefit analysis of rebellion became more heavily weighted towards the costs of the rebellion as opposed to the gain of a better ruler.

This did not mean that such a rebellion would necessarily be illegitimate, but that unless a rebellion was sure to succeed with minimal upheaval and bloodshed, patience would be the wiser counsel until such a time that any rebellion was more capable to succeed.

The above can be summarised from ibn Hajr al-Asqalani’s commentary upon Sahih al-Bukhari where he mentions “and ibn al-tin relayed from al-Dawudi who said: The scholars view upon despotic rulers is that if it was possible to remove them without fitna or oppression, then it is obligatory to do so, otherwise patience is mandated. Some of them considered that it was not permitted to pledge allegiance to someone who was sinful (a fasiq) in the first place. If it is the case that they became despotic after being just, there is a difference over whether it was permitted to rebel against them, and the correct opinion is that it wasn’t permitted unless they committed an act of disbelief, in which case it became obligatory to rebel”

In his book based upon doctoral research carried out under the supervision of Professor Wahbah al-Zuhayli, Dr. Haikal concludes a section by narrating the opinions of classical scholars regarding their views around armed rebellion under three categories:

“1. The view that armed revolt is obligatory against every deviation of the ruler, whether it was an act of disbelief or less than that.
2. The view that the obligation to rebel is limited to the appearance of clear disbelief, while remaining obedient if there are deviation less than that, in which case rebellion would be forbidden.
3. And the view that it is permitted to rebel for reasons other than disbelief, based upon the argument that some of the companions did not participate in rebellion against oppression, while at the same time not criticising those who did.”

Given the divergence of opinions about when it was permissible to rebel against an oppressive ruler, from a legislative perspective on the one hand, and a consideration of capability on the other, it is not surprising that while one group engaged in armed rebellion others would refrain from joining. While each group would give counsel to and exhort the other, within mainstream opinion neither side would cast the other out of Islam nor consider that their view was illegitimate. Rather, the sympathies of those who preferred patience were with those who rebelled, and they would not openly support the oppressive ruler. The approach was to either speak out against the ruler if they were capable, or remain silent if not.

This is explicit in the views of the scholars that while it was obligatory to support a just ruler if they faced a rebellion, it was similarly obligatory to support a just leader of a rebellion against an unjust ruler, and otherwise to leave both sides without supporting either. In his Quranic exegesis, ibn Al-Arabi al-Maliki wrote “According to the transmission of Sahnun our scholars have said: Only fight alongside the just leader, irrespective if they were the original ruler or the one who rebelled against him. If neither are just, then withhold yourself unless you need to protect yourself, your wealth or the general Muslim population from oppression”.
“Whosoever comes to the gate of the Sultan will face fitna (by being corrupted), and whenever a slave of Allah seeks closeness to the ruler, he finds himself further from Allah
In contrast, while questions of the legitimacy of the ruler in normative Islam revolved around the question of suitability of the candidate to govern by Islam and the consent of the people, fiqh al-istislam considers the various assortment of (largely British created) monarchies and military junta that currently lead the post-Sykes-Picot nation-state Middle East as Islamically legitimate rulers in origin. Consequently they promote that the narrations, opinions and rules that apply to a legitimate caliph also apply to the current regimes, which is a totally untenable position.

While most conservative traditional views would view the revolutions in Syria, Egypt and Libya, among others such as the struggle in Palestine as legitimate expressions of resistance, fiqh al-istislam is the fiqh of a defeated mindset which delegitimises resistance to oppression and the continuing struggle against colonial and post-colonial regimes, denigrating those who resist them and advising them to do nothing except to submit, be patient and rectify oneself in a vacuum.

While most conservative traditional views would commemorate Husain bin Ali and his followers as martyrs for their stand, fiqh al-istislam claims that those seeking to remove current regimes are akin to the khawarij sect, or alternatively have been humiliated by Allah.

While most conservative traditional views would either speak against oppressive rulers such as Yazid or Hisham bin Abdul Malik, or at a minimum stay silent, fiqh al-istislam openly supports contemporary oppressive governments that have no Islamic legitimacy in origin.

While most conservative traditional views would encourage the people to enjoin the good and forbid the evil, while stopping short of open rebellion if success was not guaranteed, fiqh al-istislam enjoins submission, quietism and a culture of being apolitical upon the general population, at the same time as its scholarly adherents are being openly political in their public (supposedly apolitical) support for whichever regime they are seeking patronage from.

While the most conservative traditional views would counsel patience in the face of potential fitna to maintain the status quo of stability and unity of the Islamic people under their ruler, fiqh al-istislam perpetuates the disunity and chaos by upholding the system of nation states and their interlocutors, ensuring the maintenance of the secular post-colonial system in region.
You must enjoin the good, and you must forbid the evil, or Allah will make the worst of you sovereign over you, who will afflict you with the worst of punishments, until even the best of you raise their hands in prayer and it will not be answered”
The contemporary quietism promoted by such people is a uniquely modern phenomenon, and the call to remain silent and submissive or even support the rulers in this context has no precedent. If they considered that rebellion was not appropriate due to lack of capability, then they should at least speak out against the rulers and their wrongdoing wherever that may be. If they were unable to do that, then they should hate it in their hearts. Instead what is commonly seen is support for these rulers dressed in the robe of traditional Islam, while calling the people to focus upon themselves and spiritual enlightenment rather than taking any practical actions or speaking out.

Though proponents of fiqh al-istislam are not a monolith, for example ranging from those who almost gleefully support a regime crushing peaceful protesters to those who profess sadness at the loss of life, but they still nonetheless share the same underlying mentality of defeatism which they spread among the general population. If we are to accept that we are in a position of weakness, and incapable of removing and replacing these current rulers and the colonial states they maintain – and that we need to follow the example of the Prophet, peace be upon him, when the Muslims were in a position of weakness while in Mecca – then remember that neither the Prophet, nor the companions ever supported the Quraish or neglected to struggle for justice and call against their despotism and disbelief.

What we must not do is accept those who come to the Muslims dressed in the garb of scholars, with the eloquence of poets, and yet are promoting only defeatism. To return to the authentic Prophetic narration mentioned at the beginning of this article, Islamic scholarship is an inheritance from the Messengers. Whether for personal gain, or a misjudged appreciation of the circumstances, the creation and promotion of fiqh al-istislam is a betrayal of that inheritance, a modern innovation without precedent in Islamic tradition which is being exposed for the empty and corrupt ideology it is.
“The master of the martyrs is Hamza ibn Abdul Mattalib, and a man who stands (in front of) an oppressive ruler and enjoins the good and forbids the evil and so is killed for it”
Dr. Reza Pankhurst is the author of The Inevitable Caliphate (Oxford University Press, 2012) and The Untold History of the Liberation Party (C Hurst & Co, 2016)



Anonymous said…
Islam is the best way to act upon

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