This post is the third in a series of four posts on obligation, jihād, revolution and prisons.
In late 2010, a Tunisian fruit seller, frustrated by restrictions on his ability to make a living and constant police harassment, poured gasoline on himself and lit a match. This was largely viewed as the first protest for events that would collectively come to be known as the “Arab Spring.” Almost a month later, on January 25th, 2011, thousands of Egyptians poured into the streets of Cairo, converging on Tahrir Square, demonstrating and chanting for the regime to fall. In the months and years that followed, that chant was heard across the region, in protests large and small; some successful, others tragically not.
Islamic law, through its jurists, came to play a role on both sides in the events that transpired. This is best illustrated by a story recounted by the Moroccan jurist, Aḥmad al-Raysūnī, in his 2013 book, Fiqh al-Thawra (“Law of Revolution”).[1] Raysūnī happened to be in Egypt at the time of the uprising and recalls being awoken late one night by a phone call from a distressed protestor standing in Tahrir Square, the revolution’s epicenter. A number of fatwas had been circulated among the protestors by pro-government actors and had declared the uprising unlawful under Islamic law. This included fatwas from jurists associated with the Salafi movement and the Egyptian Dār al-Iftāʾ, the agency responsible for issuing advisory legal opinions based on Islamic law.[2] For many demonstrators, these anti-protest fatwas had become a source of dissension: did fidelity to their faith really mean forgoing the pursuit of their own freedom and justice? Raysūnī claims he spent the rest of the night crafting a response, one that began to articulate why Islamic law supported the goals and methods of young people on the streets. He was not alone in taking on this task; numerous jurists from across the Arab world (and beyond) utilized a variety of mediums to issue legal opinions in the midst of the protests.[3]
The central challenge for these “pro-uprising jurists” was twofold. They needed to respond to the Islamic legal arguments against protests, which were orthodoxy in the Sunni legal tradition, while also remaining firmly rooted within that tradition. In other words, how could they advocate for revolution and develop new legal thinking while also maintaining their legitimacy as an authentic part of the Islamic legal discourse?
The Islamic legal argument in opposition to protests has historically been championed as a consensus position of Sunni scholars.[4] In the modern period, prominent scholars associated with Salafism, such as ʿAbd al-ʿAzīz b. Bāz (d. 1999) and Ṣāliḥ al-Fawzān, have been arguably the most zealous proponents of this position.[5] Broadly speaking, it can be summarized as follows. First, unless a head of state disavows religion, it is impermissible to rise up against him. Second, obedience to the head of state is mandatory as an extension of one’s obedience to God and his Prophet. These arguments were premised on the idea that any uprising inevitably creates social disorder, the costs of which far outweigh the benefits that might be achieved from an uprising. Disorder is fundamentally at odds with Islamic law’s preference for orderliness over chaos in society.
In response to this anti-protest position, a dynamic discourse developed in the first year of the Arab Spring in which pro-uprising jurists, such as Yusuf Qaradawi, Muhammad al-Yaqubi, Ahmad al-Raysuni, advanced legal positions in real time as events unfolded. Their response revealed some of the core impulses driving Islamic law today, as well as the fluidity of Islamic legal arguments in revolutionary moments and the creativity of these jurists. They relied on the primary sources of Islamic law, the Qurʾān and Sunna, and canonical interpretive tools, such as consensus and analogical reasoning, to create new guidance.[6] In many respects, the authority of the jurists is derived from the extent of their learning, as well as their expertise in utilizing the sources and interpretive tools. However, the “court of public opinion” is also an important factor influencing legal opinions: jurists are responsive to their publics. The authority a jurist’s legal opinion has is directly proportional to the level of reception it receives from the population. The more people choose to follow your legal rulings, the easier it is to consider you an authoritative conveyer of what God has obligated. Unlike judges, whose opinions are backed by the state’s coercive power, jurists derive their status from the masses who voluntarily adopt their opinions.
Bearing the above in mind, there are two main types of legal arguments that can be identified in the 2011 pro-uprising fatwas: textual and policy-based. Textual arguments are rooted in the traditional Islamic legal discourse. They revolve around language, scripture and historical practice. Jurists begin by setting the terms of the debate and putting forward their definitions of the key terms with legal import: demonstrations/protests (muẓāharāt), rebellion (khurūj), and social disorder/chaos (fitna). They then address the issue of proof-texts, specifically the fact that there is no text from either of the primary sources that speaks directly to protest. Finally, they look at the historical record and search for persuasive authorities, primarily luminaries within the faith, who may have commented or behaved in a way that would support their position.[7]
Broadly speaking, pro-uprising jurists address the absence of any prooftext on protest in two different ways. They first look for other supportive texts that do not speak to the issue at hand directly, but provide principles or commands that could broadly apply to the protest context. These verses will often contain vague terms that are malleable enough to address the situation. For instance, jurists utilize the well-known Qurʾānic guidance to “command what is right and forbid what is wrong.” (Q 22/al-Ḥajj: 41). If one looks at the historical application of this verse, there is no evidence that it was used for acts of protest against the state. However, jurists seize on the words “right” (maʿrūf) and “wrong” (munkar) then broaden their meanings to encompass “right” objectives of revolution and “wrong” behavior of the Executive, respectively.[8] When read this way, the Qurʾān is seen as commanding people to pursue the revolution’s righteous values while also telling them to forbid wrongful acts of the Executive. The second approach they take may be described as a legal minimalist one. Jurists argue that historically, the default position on all matters was based on the legal canon that “everything is permissible unless there is proof of prohibition.”[9] A modern legal trend in Islamic law is to reverse this presumption, and require proof of permissibility instead. Pro-uprising jurists balked at this development and insisted that the absence of a text prohibiting an act meant the act fell outside the scope of Islamic law. This constricted (or minimized) the areas where the law was able to declare anything unlawful.
In addition to textual arguments, pro-uprising jurists also put forward what I term policy arguments. These are arguments that contain appeals to legal concepts and ideas outside of the primary sources. They are still rooted within tradition, but allow the jurist a greater degree of latitude in crafting their argument. There are two primary components of the policy approach. The first is where jurists take pre-existing legal concepts in Islamic law and expand them to include protests and the values underpinning them. The second is when jurists incorporate legal ideas from other discourses into Islamic law. The most prominent example of this is the idea of “rights,” which has precursors in Islamic legal tradition, but its contemporary formulation, particularly as it relates to “political rights,” is largely absent in the past.
An example of how jurists expand pre-existing legal concepts returns us to the discussion of obligation raised in a previous post. As I noted before, this is the most potent tool in the jurist’s toolbox. Obligation is central to the Islamic legal enterprise which revolves around either telling you what you are required to do or telling you what you should abstain from. Pro-uprising jurists relied on legal obligation, specifically collective duties (farḍ kifāya) to require at least some people participate in the protests.[10] Some jurists note that providing “good counsel” is traditionally a collective duty and argue that protesting is a form of giving good counsel to the powers that be. The scholarly council of the Jordanian Muslim Brotherhood argued that protests were a method to “collectively express” an opinion on an issue of public concern. An oppressive ruler is a “public violation” and it is obligatory to rebuke it publicly.[11] Others argued that protests were collectively obligated because they inform the government about the concerns of the governed. Muḥammad al-Yaʿqūbī (also, al-Yaqoubi), a Syrian jurist, issued a fatwa obligating demonstrations to fulfill Islamic law’s requirement to oppose unjust rulers. He considered the traditional rule requiring obedience to heads of state to only be applicable for just rulers. He expands this duty even further by saying not only are you prohibited to side with an unjust ruler, but you are obligated to “secure victory for the oppressed.”[12]
Jurists supportive of protests also invoke legal obligation in other creative ways. For instance, in Yemen, the jurist and former Minister of Justice, ʿAbd al-Wahhāb Daylamī, argued for protests on the basis of contractual obligations in Islamic law. He said that the relationship between people and their government is analogous to a lessor and lessee. The contract between the people and government is the Constitution. The head of state swears to uphold it, but violates it if they oppress people and curtail their rights. If that happens, there is a breach of contract. Since breaching a contract or violating an oath is impermissible in Islamic law, the Executive’s violation of the Constitution also constitutes a violation of Islamic law.[13]
Let me briefly comment on why I think all of this matters. First, the particular discourse that develops in support of mass, non-violent protest is a relatively new one in Islamic legal history. There are some related topics discussed in the past, but really no precursor so this discourse which charts new ground. As a result, there are interpretive principles and approaches created which are of consequence for future legal thinking. Second, the discourse is a practical illustration of how Muslim jurists handle the issue of legal change and negotiate the orthodoxies within their own legal tradition. While Islamic law is often thought of as rigid and resistant to change, its role in the Arab Spring suggests different. Jurists of Islamic law can actually be quite dynamic and creative in coming up with impactful solutions for the populations that vest them with authority. Third, the public is, and has been, a stakeholder in Islamic law; the Arab Spring just brought this into full view. The public, through their actions, motivated the emergence of this new revolutionary Islamic jurisprudence and are central figures in the arguments that jurists make. To speak of the “people’s will,” their “political rights” or even the idea that the state has contractual obligations to them is something largely absent from an Islamic legal tradition which was developed in empires where a ruler/ruled dynamic dominated. Moreover, the relationship between Islamic law and the public is symbiotic. Although the public sought out Islamic law to legitimate the values they were after, Islamic law’s ability to respond to the public sustains its relevance to their lives. Since some of law’s authority is derived from the public, Islamic law’s own legitimacy requires that jurists continue to listen to the people.
Notes:
[1] Aḥmad al-Raysūnī, Fiqh al-Thawra: murājaʿāt fi’l-fiqh al-siyāsī al-islāmī (Law of Revolution: A Review of the Islamic Law of Governance)(Cairo: Dār al-Kalima, 2013).
[2] I have been unable to locate copies of these fatwas, but Raysūnī refers to them in his book, see Ibid., at 7. A few items from that time, early 2011, seem to corroborate Raysūnī’s account. First, around the end of January 2011, the spokesperson for al-Azhar University’s Fatwa Committee, Saʿīd ʿĀmir, gave a statement to the news outlet al-Shurūq declaring protests forbidden. Kul al-ʿArab, “Amīn al-fatwā fī al-Azhar: al-muẓāharāt aw al-waqfāt al-iḥtijājīya al-silmīya muḥaramah sharʿan” (Spokesperson of al-Azhar Fatwa [Committee]: Protests and Peaceful Vigils are Forbidden in Islamic Law), January 27, 2011, https://www.alarab.com/Article/0000354709. He was likely acting in his individual capacity, but the news was widely reported as an opinion from al-Azhar the institution. Second, in early February 2011, the Egyptian Salafi preacher, Muḥammad Ḥassān, gave an interview to Al Arabiya news channel recounting how he went to the area of protest, staying all night, to deliver a message to the protestors that their activities were not permitted. Lana Helmy, “Raʾy al-Shaykh Muḥammad Ḥassān al-haqīqī fī muẓāharāt 25 Yanāyir fī miṣr (The Actual Opinion of Shaykh Muḥammad Ḥassān on the January 25th demonstrations in Egypt),” YouTube video, 9:18, February 1, 2011, https://www.youtube.com/watch?v=Lr-vGYc13QY.
[3] See generally, Adnan A. Zulfiqar, “Revolutionary Islamic Jurisprudence: A Restatement of the Arab Spring,” New York University Journal of International Law and Politics 49 (2017). Some jurists even went to Tahrir Square to issue statements countering anti-protest arguments offered by other jurists. One example was the Egyptian jurist Muḥammad ʿAbd al-Maqṣūd who sat in a wheelchair with a megaphone to address the crowd. See, familany, “Mā ḥukm al-muẓāharāt wa al-khurūj ʿalā al-ḥākim (What is the Ruling on Protests and Rebelling Against the Ruler),” YouTube video, 7:42, February 6, 2011, https://www.youtube.com/watch?v=xMkY4HzT7eg.
[4] For a discussion of this position, see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 15-16; Michael Cook, Commanding Right and Forbidding Wrong in Islam (Cambridge: Cambridge University Press, 2001), 479.
[5] See for example, Ṣāliḥ al-Fawzān, al-muẓāharāt wa al-fawḍā laysat min al-naṣīḥa li-walī al-amr (Demonstrations and chaos are not the way to advise the ruler), http://www.alfawzan.af.org.sa/ar/node/13233; see also, ʿAbd al-ʿAzīz b. Bāz, Majmūʿ fatāwā (Fatwa Collection), vol. 8, (Riyadh: Dār al-Qāsim, 2008), 202-210.
[6] For example, ʿAbd al-Razzāq al-Saʿdī, al-Muẓāharāt wa taʾṣīluhā al-sharʿī (Demonstrations and their Islamic legal basis), Jan. 3, 2011, http:// www.islamsyria.com/portal/consult/show/253; Mr01aziz12, “Faḍilat al-Shaykh Yūsuf al-Qaraḍāwī yaruddu ʿalā man harama al-muẓāharāt (Yūsuf al-Qaraḍāwī responds to those who prohibit demonstrations),” YouTube, 7:32, February 18, 2011, https://www.youtube.com/watch?v=ZT1SF_XHLMQ.
[7] For instance, they reframe the famous Battle of the Camel as initially being a protest against the Caliph Alī’s decision to pardon the prior Caliphs assassins. See, Ḥātim b. ʿĀrif al-ʿAwnī, Ḥukm al-muẓāharāt al-silmīya (Ruling on Peaceful Demonstrations), http://www.dr-alawni.com/articles.php?show=45.
[8] See for example, Āmir Abū Salāmah, Ḥukm al-Sharʿ fī al-muẓāharāt fī Sūriyā (The Islamic Legal Ruling on Demonstrations in Syria), Association of Syrian Scholars, http://www.islamsyria.com/portal/consult/show/261; see also, PJLWJL (Interview with Muḥammad al-Didawi al-Shanqītī), Ḥukm al-muẓāharāt [Ruling on Protests], YouTube Video, Dec. 3, 2011, https://www.youtube.com/watch?v=iwWaIK41JKo.
[9] Āmir Abū Salāmah, supra note 8; see also, ʿAbd al-Razzāq al-Saʿdī, supra note 6.
[10] For a more expansive discussion of obligation and collective duties, see generally, Adnan Ahmad Zulfiqar, “Collective Duties (Farḍ Kifāya) in Islamic Law: The Moral Community, State Authority and Ethical Speculation in the Premodern Period,” (PhD diss., University of Pennsylvania, 2018).
[11] Council of Scholars for the Muslim Brotherhood in Jordan, al-Ḥukm al-Sharʿī fī al-muẓāharāt (The Islamic Legal Ruling on Demonstrations), Assawsana, March 3, 2011, https://www.assawsana.com/portal/pages.php?newsid=45697 [https://perma.cc/S9LG-F53R].
[12] Al-Jazeera Arabic, al-Sharīʿa wa al-Ḥayāh—al-Thawra . . . Fitna am Raḥma? [Shari’a and Life: The Revolution . . . Disorder or Mercy? —with Mohammad al-Yaqoubi], YouTube Video, Sept. 11, 2011, 18:07 to 22:08, https://www.youtube.com/watch?v=jigNsFX9exc.
[13] ʿAbd al-Wahhāb al-Daylamī, Laysa khurūjan ʿalā al-ḥākim (This is Not Rebellion Against the Ruler), Mareb Press, March 14, 2011, http://mareb press.net/articles.php?lng=arabic&id=9459 (https://perma.cc/2KBC-GHZZ).