The literature on the history of Islamic political theory generally supports a narrative of submission and allegiance to rulers, even if they have seized power by force. It is suggested that the ʿulamāʾ were primarily motivated by a “fear of civil war (fitna) and disturbance (fasād) leading to disorder and anarchy.”[1] H.A.R. Gibb criticized the ʿulamāʾ for legitimizing unqualified and oppressive usurpers (al-ḥākim al-mutaghallib), arguing that this concession undermined the rule of law and led to the collapse of the caliphate.[2] As Ovamir Anjum aptly notes, “the predominant strand in Islamic scholarship since the onset of the classical period . . . has been characterized as quietist, apolitical, and compromising (in theory, not necessarily in personal conduct) towards usurpers of power.”[3]
This essay contends, however, that while the Mālikī ʿulamāʾ in the Ottoman period followed their predecessors in prioritizing the prevention of Muslim bloodshed by conferring political legitimacy on unjust rulers, they nonetheless occasionally contested their rules and decisions even when these did not contravene sharīʿa. They selectively argued that an unjust ruler is as good as non-existent, and therefore, his authority should be referred to the Muslim community. Rather than a strict dichotomy of rebellion versus allegiance, the ʿulamāʾ advocated for a nuanced balance between obedience and disobedience. Here, disobedience did not imply armed conflict but rather a defiance of certain dictates while still maintaining allegiance to the ruler as the legitimate authority.
For instance, Sheikh Muhammad ʿIllīsh (d. 1299/1882), the mufti of the Mālikīs in nineteenth-century Egypt, was asked about a divorced woman from a respectable family with no relatives. She had married a kufʾ (suitable) husband, who provided the agreed-upon dower. Lacking family members, she chose a man from the Muslim community as her marriage guardian, and the marriage took place with a large number of Muslims present. After the marriage was consummated, someone objected, claiming the marriage was invalid since, in the absence of family, only a judge should act as her guardian, not a member of the public. Sheikh ʿIllīsh responded that the marriage was indeed valid and that a judge had no legal grounds to annul it. He explained that the judges in his time held titles in name only and lacked the necessary competence to serve as guardians. Thus, due to their corruption, any member of the Muslim community (jamāʿat al-muslimīn) could act as a guardian in such cases.[4] This fatwā clearly diverges from the standard opinion in the Mālikī madhhab, which states that if a woman lacks male relatives, the ruler or judge becomes her legitimate guardian. In Khalīl’s (d. 767/1374) Mukhtaṣar, the most renowned mukhtaṣar (compendium) among the Mālikīs, he outlines that guardianship should follow a specific hierarchy: first, the woman’s male relatives, such as her father or son, then, in the absence of such relatives, authority moves to the judge, and finally to any suitable person from the Muslim community.[5] This same order is upheld in other various Mālikī sources.[6]
It seems that the reasoning behind ʿIllīsh’s fatwā lies in a later Mālikī axiom stating that if the ruler (or his officials) is unjust, his authority reverts to the Muslim community. In such cases, the delegation of authority given to the ruler as the community’s representative is revoked, returning power to the Muslim community (jamāʿat al-muslimīn), the original repository of authority. This notion appears to build upon Juwaynī’s )d. 478/1085) earlier hypothesis regarding the ‘extinction’ of rulers. Writing in the late Abbasid era, al-Juwaynī, a prominent Shāfiʿī jurist, imagined a scenario in which Muslims might find themselves without a ruler. He asserted that the position of the ruler is indispensable and cannot remain vacant for religious and practical reasons. Therefore, he argued that for essential matters like “conducting Friday prayers, leading soldiers in jihād, and implementing retaliation for murder and injury, the people (al-nās) must assume responsibility when the world (zamān) is void [of a ruler].”[7] Although Juwaynī’s concern was the absence of rulers, it appears that later Ottoman Mālikīs extended this concept to cases involving unjust rulers.
Various late Mālikī scholars argued that a corrupt Muslim ruler was effectively equivalent to being non-existent, particularly when discussing the financial rights of the state. This marks a significant evolution of al-Juwaynī’s theory. Although Khalīl, during the Mamlūk era (648/1250 – 923/1517), maintained that it was impermissible to refer cases to the Muslim community when a Muslim ruler (whether a governor or judge) was available, we find some Mālikīs in the eighteenth century like ʿAlī al-ʿAdawī (d. 1189/1775) suggesting that “the existence of a judge or others mentioned above, when they are unjust or demand a considerable amount of money [as taxes] is equivalent to non-existence (ʿadamih). Thus, cases may be referred to the Muslim community.”[8] Similarly, Aḥmad al-Dardīr (d. 1201/1786) argued that the ruler’s ‘absence’ need not be physical. Instead, an unjust ruler’s presence was akin to absence “as in our time in Egypt, where there is no sharʿī ruler.”[9] Likewise, Aḥmad al-Ṣāwī (d. 1241/1825) agreed that unjust rulers were irrelevant, affirming that, in such cases, the real authority lay with the Muslim community.[10]
However, the ʿulamāʾ were mindful that delegating authority to the Muslim community could risk chaos and disorder. The fatwā collection of ʿIllīsh demonstrates a careful effort to strike a balance between delivering justice and avoiding social upheaval—a difficult and hazardous undertaking that did not always succeed. For instance, ʿIllīsh was asked about a sorcerer who had caused harm and sown discord among spouses. The questioner asked, “Should he be killed as an apostate?” and, if no ruler could enforce this judgment, “Would it be lawful and sinless for people to kill him themselves? Could the Muslim community administer the punishment for apostasy in this case?” ʿIllīsh responded that “only the ruler could execute the sorcerer.”[11] His response included a lengthy discussion on whether the sorcerer should be punished by death, but his primary point was that, if so, this fell within the ruler’s prerogative. This suggests that ʿIllīsh believed granting such powers to the Muslim community could have severe consequences, possibly inciting retaliation, armed conflicts, and prolonged bloodshed within the community. Additionally, ʿIllīsh noted that proving accusations of sorcery was challenging, as ḥudūd punishments were to be averted when even minor doubt existed.[12] Therefore, he resisted the idea of giving the Muslim community unchecked authority, even in instances where rulers were unjust or neglected to uphold Islamic rulings. This illustrates that while ʿIllīsh supported the idea of empowering the Muslim community when rulers abused their authority, he also recognized clear limitations to this delegation of power.
Moreover, it is essential to note that neither ʿIllīsh nor the other scholars quoted above denied the political legitimacy of rulers, nor did they delegitimize all their decisions. In the majority of their fatwās, these ʿulamāʾ did not challenge the rulers’ authority. They were, in fact, state officials who received monthly salaries from the state for their services. This shows the ʿulamāʾ’s creative and selective approach to questioning the legal legitimacy of individual decisions rather than adopting the traditional binary of either aligning with or rebelling against the rulers. This approach enabled them to selectively affirm or withhold legitimacy for specific rulings, allowing for both support and critique of sovereign decisions simultaneously.
In examining these perspectives, this essay sheds light on a lesser-known evolution in Islamic political thought, revealing the ʿulamāʾ’s attempts to judicialize political matters and impose juristic oversight on the discretionary powers of rulers. While many studies have explored the political theories of modern Muslim reformists, this essay presents an alternative narrative of reform pursued by a diverse group of traditional ʿulamāʾ.
Notes:
[1] Ann Lambton, State and Government in Medieval Islam: An Introduction to the Study of Islamic Political Theory (Oxford: Oxford University Press, 1981), 109.
[2] Hamilton Alexander Gibb, Studies on the Civilization of Islam (Princeton, NJ: Princeton University Press, 2014).
[3] Ovamir Anjum, Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (Cambridge: Cambridge University Press, 2012), xii.
[4] Muhammad ibn Aḥmad ʿIllīsh, Fatḥ al-ʿAliy al-Mālik fī al-Fatwā ʿalā Madhhab al-Imām Mālik (Beirut: Dār al-Maʿrifa, n.d.), 1:393.
[5] Khalīl ibn Isḥaq, Mukhtaṣar al-ʿAllāma Khalīl (Beirut: Dār al-Fikr, 1981), 113.
[6] See for example, Ibn Ghānim al-Nafarāwī, al-Fawākih al-Dawānī ʿalā Risālat Ibn Abī Zayd al-Qayrawānī (Beirut: Dār al-Fikr, 1995), 2:8; Shihāb al-Dīn ibn ʿAskar al-Baghdādī, Irshād al-Sālik Ilā Ashraf al-Masālik (Cairo: al-Ḥalabī, n.d.), 59.
[7] Abū al-Maʿālī al-Juwaynī, Ghiyāth al-Umam fī Iltiyāth al-Ẓulam (Riyadh: Dār al-Minhāj, 2011), 256. See Ahmad Atif Ahmad, The fatigue of the shari’a (New York: Palgrave Macmillan, 2012); Sohaira Siddiqui, Law and politics under the Abbasids: An intellectual portrait of al-Juwayni (Cambridge: Cambridge University Press, 2019).
[8] ʿAlī Al-ʿAdawī, Ḥāshiyat al-ʿAdawī ʿalā Kifāyat al-Ṭālib al-Rabbānī (Beirut: Dār al-Fikr, 1994), 2:94.
[9] Aḥmad ibn Muḥammad Al-Ṣāwī, Bulghat al-Sālik li-Aqrab al-Masālik ilā madhhab al-Imām Mālik (Cairo: Maktabat Muṣṭafa al-Ḥalabī, 1952), 2:694.
[10] Ibid., 3:382.
[11] ʿIllīsh, Fatḥ al-ʿAliy al-Mālik, 2:349
[12] Ibid., 2:348–49. For ḥudūd and doubt see Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015).
(Suggested Bluebook citation: Muhammad Al-Marakeby, “Egypt is Empty of Rulers”: The Development of Jamāʿat al-Muslimīn Theory Among Later Mālikīs, Islamic Law Blog (Dec. 28, 2024), https://islamiclaw.blog/2024/12/05/egypt-is-empty-of-rulers-the-development-of-jama%ca%bfat-al-muslimin-theory-among-later-malikis/)
(Suggested Chicago citation: Muhammad Al-Marakeby, “‘Egypt is Empty of Rulers’: The Development of Jamāʿat al-Muslimīn Theory Among Later Mālikīs,” Islamic Law Blog, December 5, 2024, https://islamiclaw.blog/2024/12/05/egypt-is-empty-of-rulers-the-development-of-jama%ca%bfat-al-muslimin-theory-among-later-malikis/)