How Totalitarian Governments Used Islamic Law for Oppression

The original Turkish version of the article below written by Turkish scholar Ali Bulac was first appeared at alibulac.net and translated by Politurco.

Just like we cannot solve our socio-economic problems with the historical burden of our traditional fiqh(Islamic Law), we also cannot find answers for our present-day intellectual problems with Kalam, which in fact has not shown any progress for centuries. One of the reasons for this is misuse of the Nass (legal injunctions) towards the organizations of traditional fiqh and Kalam, and moreover, the determinant position of the socio-political conditions at the time when our historical views and jurisprudence are formed.

One of the most significant rules of the fiqh is the fact that the matters concerning the jurisprudence always use Nass as a source. That is indeed correct, however, when Sunnah is considered as a source of jurisprudence, and the authentic and non-authentic Sunnah are not distinguished, and especially when the jurisprudence and the practices of the Sahabahs are used at the level of Nass, significant problems arise. Every single text which is not at a level of Quran and Authentic Sunnah is not considered as Nass, but considered as a dogma. Unfortunately, our entire corpus accepted many dogmas alongside the Nass as a binding source, and eventually used them for jurisprudence.

This is one of the main reasons today, if nearly all of the Islamic world faces problems like totalitarian regimes, corruptions, unfair income distributions, social corruptions, and moral degradations. This reason is feeding itself from such a strong inheritance, which we have taken over today and insistently try to protect, it currently interpenetrates all of the fields today from our politics to social lives.

When we observe history today, we see that the governments have not been based on legitimate fundamentals since Muawiyah took over with a coup, and they have not been conforming to significant provisions of Islam while producing politics and actually performing them, yet, we still do not make critics about their sources. The evidences in our books of fiqh, which are considered when the legitimacy of the governors are discussed, are quite explanatory in this matter.

I am going to provide an example in this article. The example I am about to provide is directly related with the philosophy of governing and politics. According to the traditional Faqeehs, the certitude of the head of statesmanship is determined in four ways:

1. The individual who is chosen by the Ahl al-hall wal-aqd, which is formed by the people who are educated in fiqh, meaning the ulama. The Faqees attribute this law to the election of Abu Bakr as a caliph by the committee, after the passing of The Prophet (PBUH).
2. Previous caliph nominating an individual for the head of state. The basis for this is Abu Bakr’s recommendation of Omar. Moreover, this bears a binding “will” instead of a “wish” or a “recommendation”. In other words, this is an “appointment”. Some Faqeehs stated in accordance to this model, that a head of state can appoint his child as a successor. As an example, they pointed out Muaviyah appointing his son Yazid as an evidence. (See Abdulkadir Udeh, Mukayeseli Islam Hukuku ve Beseri Hukuk, translated by Ali Safak, 1991-Ankara IV, 328). It is like the problem is solved not by Yazid, who carries the bad reputation and would cause a structural corruption towards the political and governmental system, but Muaviyah’s legitimate announcement of his son as his successor, as the rightful owner of his property.
3. According to the third model, the caliph may leave the decision to a community about who will be the ruler after him. Uthman had left the decision about who will be the ruler after him to a group consisted of 6 people.
4. The most notable of all is the model which legitimately recognizes the caliph coming into power by using arms/force. The individual who comes to power by force – meaning by stating a coup or a revolution – compels the people to obey himself, thus the community acknowledges to obey him. Therefore, the individual who is appointment as the caliph finds certitude. Muslims are obliged to pay homage to a caliph, who comes to power by tyranny and oppression. The foundation of this model is Ummayad’s caliph Abd al-Malik ibn Marwan coming into power, after he martyrized Abd-Allah ibn al-Zubayr, who rebelled against him. The community paid homage to the son of Marwan, willingly or unwillingly, and accepted to live under his ruling.

The Faqeehs recognized paying homage and obeying such individuals, who came to power with one of these four models, as an obligation, and considered any objection as an act of rebellion. Interestingly, when Muawiyah, who caused tens of thousands of Muslims to shed blood, revolted against Ali, they did not categorize this as an act of rebellion.

Our Faqeehs did not focus on any other models, for example, they did not form an opinion on the model, which allowed the power to be taken through periodic elections without force. However, they did make entries on the books of Kalam about the intensifier facts of a government of an individual or a dynasty. As follows:

1. The Faqeehs ruled that a caliph, who was selected this way or another, can rule for a lifetime. Lifetime forms the source of legitimacy of the governors, who do not leave the power until their last breaths, in Islamic countries today and in history. Religious monarchies and dictatorships considerably feed from this inheritance.
2. While the shura, which forms the foundations of the government theory from the Quran and Sunnah perspective, is virtually made invalid, the Faqeehs did not describe the shura to the people as an effective instrument towards the ruling processes and decision mechanism through the scholars and opinion leaders, but nothing more than a confirmation authority, which included individuals appointed with money or beneficence, towards the governors decisions and practices.
3. The governmental power was attributed to divine legitimacy and consecrated since Abu Bakr. Although Abu Bakr prevented a possible theocracy by telling the people “I am not the caliph of Allah, but the caliph of His Prophet” who had called him “The caliph of Allah”, Uthman opened doors to attributing the caliphate to a divine/transcendent source when he said “This cloak is given to me by Allah, and he is the only one to take it off.” Later, the caliphs of the Ummayads entitled themselves as “Allah’s shadow on earth” or “the caliph of Allah”. Unfortunately, this subject was not emphasized enough on the books of fiqh and Kalam, and by time, under the influence of Byzantine and Sassanid, the caliphs, sultans, kings, and shahs considered the countries as their own private properties, and the people as their slaves.
4. Another important, and maybe the most troubling fact is while Kuran and Sunnah attribute the legitimacy and the fructuous reasons of a government to establishing justice, in other words; compliance to the law, the Faqeehs predicated this on protection and public stability, thus defended the necessity of obeying the governors even if they take unlawful actions. According to four Sunni sectarians and the Zaydis, even if the imam is a liar and flagrant, it is illicit to object him. According to the Zahiris, even though the oppressing caliph is being objected in the same manner or even more than he oppresses, it is best to be on the side of the caliph, because while fighting against the evil of the individual who is ruling, an occurrence of a bigger oppression is highly likely.
5. Faqeehs, who were not content with all, authorized the head of the state with so many powers under the description of “tazir”, they included death penalties which are not foreseen by neither Quran nor Sunnah, and they ruled that the governor, meaning the state, can sentence people with death penalties for some criminal actions whenever they see fit. And others invented a Custom Law inspired by the traditions of Genghis alongside Sharia Law (according to the fetwa received by Mehmet the Conqueror “ekser-i ulama”), thus allowed the heads of state to destroy their opponents by legitimizing the “political murder”. Revolution, tazir, apostasy, and political murder created the foundations of “so-called legitimacy” of the tyrant and oppressing governments which have been ruling since the martyrdom of Ali. Alongside other factors, if the Islamic world is being ruled by the totalitarian regimes in general, one of the most important sources feeding this oppression is the corresponding historical inheritance in question in our fiqh and Kalam books.

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