Chapter IV: THE LIMITED SCOPE OF SHARIA IN PAST MOSLEM EMPIRES

The Main Enemy: Islamism
Chapter IV: The Limited Scope of Sharia in Past Moslem Empires

Perhaps the greatest failure of the American (and Western) approach to radical Islam is our unwillingness to identify and expose it as an essentially totalitarian political ideology under the guise of religion, rather than a religion as such.

This despite the fact that the Islamists themselves claim that what they believe in and promote is not just a religion but the perfect fusion between a faith and a political system (din wa dawla).

This is an absolutely fundamental part of the Islamist ideology and the main justification for what they see as a religious obligation to impose by violence if need be a political system in the form of a Caliphate, i.e., worldwide Moslem rule.

Therefore, an understanding of what sharia is and what it is not is essential not only for a better grasp of the Islamist mindset, but more importantly it is of vital importance for a critical assessment of Islamism’s bogus claims and poor grounding in traditional Islamic teaching.

Sharia in Moslem History
The common denominator of all groups and movements that make up political Islam in the early years of the twenty-first century is without a doubt the call to restore sharia to its ostensibly central place in Islam.

This has led to and is reinforced by a powerful trend in Islamic hagiography to glorify sharia as the God-given sacred law of Islam valid from the prophethood of Mohammed to the end of days.

This deification of what is essentially a man-made doctrine of behavior prescriptions has assumed such a central place in the practice of the religion of Islam that for the Moslem establishment and the multitudes of practicing Moslems who take their cues from it, sharia law is now more important to the religion of Islam than its theology.

In the words of the prominent scholar of Islam, Joseph Schacht, "in the eyes of the high Islamic dignitary the essential bond that unites the Moslems is not so much a common simple creed as a common way of life, a common ideal of society," and " in modern times, the main intellectual effort of the Moslems as Moslems is aimed not at proving the truth of Islamic dogma but at justifying the validity of Islamic law as they understand it."[1]

Given this extraordinary preoccupation with sharia in today’s Islamist discourse, it is essential to take a good look at the role Islamic law has played in Moslem history through the ages. Sharia did not always have the power and status that it has now. 

Starting from the beginning, it is relatively easy to establish that current claims by the most zealous sharia advocates that sharia was practiced already at the time of Mohammed and the "rightly-guided" caliphs who succeeded him, are not based on any historical evidence.

There is, of course, no doubt that traditional Islam has always portrayed the Prophet Mohammed starting as a religious reformer in Mecca, then becoming both a law-giver and ruler in Medina.

But his law-giving was based on his religious authority, and although ultimately it had the effect of superimposing a Moslem community on Arab tribal society, he did not institute a new system of law administration.

Instead, he continued relying on the age-old Bedouin customary law (urf) and traditional arbitration. Indeed, Arab customary law, with its emphasis on the traditions and customs of the forefathers as something worth emulating, was the bedrock on which the key sharia concept of sunna (practice or behavior) of the Prophet was built.

It was this borrowing that allowed the rigid Bedouin conservatism to reassert itself in Islam a few short decades after Mohammed.

Even when new religious obligations were enunciated by Mohammed, there was no legal framework nor, perhaps, the intention to enforce them for at least the first hundred years of the new religion.

Thus, as Joseph Schacht has shown, while wine-drinking was prohibited by the Prophet, there was no punishment assigned for it until much later. Similarly, revelation taught that non-Arab Moslems and converts to Islam were to be treated as equal by the Arabs. In reality, at least until the coming to power of the Abbasids in 750, the non-Arab converts (mawalis) were openly discriminated against.[2]

The Umayyad Empire:  661-750
The founding of the first Moslem empire under the Umayyad caliph Muawyia in 661 brought about a dramatic change in the socio-political and religious circumstances of the growing Moslem polity.  Note that the Ummayyad capital was Damascus in present-day Syria, not Mecca, Medina, or anywhere in Arabia.

Though sharia law was at least a century away from being completed then, these new conditions created an environment that was to affect Islamic law decisively in the centuries to come.

The first major change was the transformation of the new Moslem state from a charismatically-led tribal society to a hereditary empire led by tyrants who presided over far-flung territories in which the vast majority of the population was non-Moslem.

The first priority of this new empire, apart from waging wars, was tax collection to finance the war efforts and administration of its diverse populations including, of course, a system of justice.

This is the period that many consider the beginning of Islamic law – though sharia had just started being discussed in various schools of law that coalesced in cities like Kufa (south of Baghdad) and Medina in the early decades of the 700s and eventually gave rise to the different sharia schools of jurisprudence.

In terms of the actual administration of law in the state, the Umayyads depended on the traditional customary law of the different provinces and also on local administrations they inherited from the Byzantines and allowed to continue functioning, as they had conquered a great deal of Byzantine territory. One such institution was the office of the "inspector of the market," or sahib al-suq.[3]

The one Islamic innovation was the appointment of Moslem judges known as qadis. The qadis, who were often laymen and frequently acted also as tax collectors, took over the role played by the Arab tribal arbitrators of old.

As an institution, the qadis played a key role in Moslem society until the twentieth century. While they were allowed to use independent judgment (ra’y), they usually based their decisions on both Koranic injunctions and the customary law of the region. Their independence, however, was severely circumscribed by the fact that they were administrators appointed and serving at the pleasure of the provincial governor.

This meant that they seldom made decisions that went against the perceived interests of their patron. Indeed, the governors, who enjoyed virtually unlimited power in their bailiwicks, had the right to decide themselves any case they wished.

Toward the end of the Umayyad period, as the political administration underwent greater and greater centralization, the qadis began to be appointed and controlled directly by the Caliph (Moslem Emperor & Pope) and his representatives in Damascus.

The qadis had jurisdiction only over the Moslem population, which was a minority in the Umayyad empire. The non-Moslems, mostly Christians and Jews, were allowed considerable autonomy and continued administering justice through their own religious courts as they had under Byzantine rule.

This was an early model of what was to become the millet system of religious and, to a degree, political autonomy for non-Moslems practiced in the Ottoman empire for most of its existence.

Although the qadis of the Umayyad period were not Moslem jurists in the way that the ulema (clergy) of later times were, they nonetheless exercised a significant influence on the development of Islamic law.

The Abbasid Empire: 750-1258
In 750, a rival Islamic faction called the Abbasids conquered the Umayyads and moved the capital of the Moslem Empire of Caliphate to Baghdad.  It was during the Abbasid period that sharia finally emerged as a system of Islamic law in the form in which it is still with us today.

The Abbasid tenure in power was a historic watershed for Islam. The Moslem state achieved its greatest territorial expansion to that point, ushered in a period of tremendous achievement in science, philosophy, and the arts, and produced a brief but intense flowering of rationalism in the interpretation of religion.

Politically, the unquestioned Arab supremacy maintained by the Umayyads was replaced by an ethnically diverse elite with major Persian and, later on, Turkic participation at the highest echelons of power.

One of the notable consequences was the lifting of discriminatory political and economic policies against the non-Arab mawali convert population, which promptly began playing a much larger role in Abbasid society. This led to waves of conversion to Islam, which had been by and large discouraged by the Umayyads for tax reasons.

In terms of religion, the Abbasids had used Islam as a weapon in their long power struggle against the Umayyads, by claiming that the latter had deviated from the faith. Having come to power, after what was essentially the third civil war in Islam (744-50), they instituted a policy of Islamization and actively patronized and supported assorted Islamic experts and the ulema.

This became evident, among other policies, in the transformation of the office of the qadi from that of a local administrator to a caliph-appointed dispenser of Islamic justice. This new Islamizing climate was a great boon to the emerging theological elite made up of the conservative ulema and "traditionalist" Islamic jurists (fukaha) who were busy translating Koranic precepts and the traditions of the Prophet into a new legal code.

What emerged by the middle of the 800s is what we know today as sharia. The most significant innovation of jurists like Al-Shafii and Ibn Hanbal and hadith collectors like Al­ Bukhari was to make the reports (hadith) of Mohammed’s life and sayings as interpreted by the ulema co-equal in exegetic weight with the Koran.

This was a momentous achievement for the ulema since it secured them the authority, unchallenged to this day, to define and interpret what Islamic law is. And it did so by having them bestow authenticity on countless dubious and bogus hadith by means of what Schacht has called "one of the greatest and most successful literary fictions."[4]

The authority of the ulema continues unchallenged today through their prerogative of issuing legal rulings, or fatwas.

The Abbasid rulers signed on early to the sharia enterprise, which gained nearly universal acceptance in the tenth and eleventh centuries. Nonetheless, the "sacred law" never became the uncontested law of the land and continued to be challenged politically as well as by alternative systems of dispensing justice.

This was due partly to the nature of the Abbasid political system, but mostly to the systemic weaknesses and poor adaptability of the sharia itself.

The first challenge to the orthodoxy of traditionalists came very early in the Abbasid tenure in the form a direct challenge to the legitimacy of the ulema by the Persian secretary to the Caliph al-Mansur, Ibn Muqaffa (720-756).

Strongly supportive of the Abbasid ideological predilection to emphasize caliphal authority as derived from the caliph’s position as Deputy of God and successor to the Prophet, Muqaffa argued that the caliph’s authority extended over that of Islamic law and included not only the right to administer punishment but also to legislate on matters that were not clearly defined by revelation.

Muqaffa then went on to argue that the "development of the Law of Moslems should be taken out of the hands of the ulema and their conflicting schools, and entrusted to the Commander of the Faithful."[5]

While Muqaffa’s proposals were never fully implemented, it was clear that the caliphs, at least until their political power dissipated late in the ninth century, were firmly in control of the judicial system and had no intention of allowing the ulema or sharia to circumscribe their power.

Traditionally, Islam teaches that the caliph could exercise judiciary power only within the limits set by sharia and was not allowed to legislate. In fact, caliphs legislated all the time but avoided open conflict with the law by calling their new laws administrative rules or regulations.

This was, of course, a necessity after it became clear very early on that sharia had very little to say about key issues of state governance, such as taxation, law enforcement, criminal justice, etc.[6]  These serious shortcomings of Islamic law eventually led in most Islamic countries to the installation of parallel systems of justice to deal with the areas of jurisprudence underrepresented or non-existent in sharia.

One such system was borrowed by the Abbasids from the Persian tradition developed during the pre-Islamic Sassanid period (224-651) of appeals courts and became known as the "courts of grievance" (mazalim courts).

These courts essentially dispensed secular justice on behalf of the king. They dealt with complaints about abuse of bureaucratic power, corruption and injustice, but also about the miscarriage of justice by sharia judges. Unlike sharia courts, they were allowed to consider local customary law and could also enforce their judgment.

Their political power derived from the fact that they were the king’s appointees.[7] The mazalim courts served to curtail the political power of the sharia judges and thus helped the caliph control their independence, which was always guaranteed in theory, but never existed in practice.

Another parallel system of justice administration became the shurta (police) courts. Shurta courts were charged with the maintenance of law and order and were usually attached to the local police force, which in many cases was based on an army division garrisoned in a town. During the Abbasid period there was at least one and sometimes two shurta courts in any town.[8]

Like the mazalim courts, the police courts stepped in where sharia law was clearly not up to the task. This was the case, for instance, in the carrying out of criminal justice where sharia rules of evidence admissibility and witness qualifications and its basic inability to initiate cases rendered it unable to perform even when the guilt of a given defendant was proven beyond doubt.[9]

Unlike sharia courts, the police courts were not bound by the rules of Islamic law, could initiate investigations on their own, extract confessions from the accused, and admit material evidence much as criminal courts function in the West today. They could also hear and consider evidence from non-Moslems who were barred from sharia courts.

The police courts, just like the mazalim ones, thus operated a completely separate legal system that often came into conflict with sharia law. Sharia, of course, in theory covered all aspects of life, including criminal justice, but in practice was unable to do so and was kept away from it.

Perhaps the greatest threat to sharia law and the ulema until the Caliphate itself  was abolished by Kemal Ataturk (March 3, 1924) was the challenge posed to them by the unique (in Moslem history) experiment in rationalist philosophy under the caliph Al-Mamun (786-833).

Al-Mamun, a son of the legendary Abbasid ruler, Harun al-Rashid (763-809), and a great leader in his own right, was a man of considerable intellect and wide-ranging interests. One area in which he evinced no interest or sympathy was the rigid literalism of the ulema in interpreting and practicing Islamic law.

Instead, he was attracted to and, in turn, supported the ideas of rationalist theologians and philosophers who were opposed to the orthodox ulema and came to be known as Mutazilites. This was at a time in Abbasid history when interest in Greek philosophy and large-scale translation of ancient Greek texts had awakened a strong desire to implement rational thought in the discussion of religion.

The Mutazilites, also known as falsafa (philosophers), saw in al-Mamun an ally in both political and religious terms, since they believed that only a strong leader like him could bring about a society in which the pursuit of religious knowledge by means of rational argument could triumph and justice prevail.

In essence, what both al-Mamun and the Mutazilites seemed to be striving for was the implementation of the ideas of Ibn Muqaffa aimed at denying the ulema their uncontested dominance of Islamic law.  

Al-Mamun promoted and supported many falsafa and issued a direct challenge to the ulema by disputing their key doctrine of the uncreatedness of the Koran and trying to install the exact opposite as the official state doctrine.  In his efforts to discredit the ulema, however, al-Mamun made a critical mistake in attempting to achieve his objectives by repressive means.

In 833 he established for the first time in Islamic history a state inquisition known as the mihna designed to force religious officials and judges to accept his views at the risk of losing their jobs and severe punishment. Al-Mamun died shortly thereafter, and the inquisition was suspended under his brother al-Mutasim, who succeeded him as caliph (r. 833-842).

Mutasim’s son al-Mutawakkil (r. 847-861) was an orthodox caliph under whom the Mutazilites were suppressed. The guardians of sharia emerged victorious from the conflict, never to be threatened again in such direct manner until modern times. 

Whether as a result of the al-Mamun challenge or not, in the two centuries following the conflict and under conditions of rapidly waning Abbasid power, the jurists of all the Sunni madhahibs gradually reached the consensus that all important questions regarding Islamic law had been settled and that no independent reasoning on the key issues of interpretation should be allowed in the future.

This resulted beginning in the 11^th century in the famous "closing of the gates of reason"  in religious discourse, The Incoherence of the Philosophers, by the Islamic theologian al-Ghazali (1058-1111), which succeeded in replacing ijtihad (reasoned faith) with taqlid (blind imitation) of existing sharia doctrine as the only legitimate manner of interpretation allowed.

The inevitable result as the centuries went by was the progressive ossification of sharia doctrine and its growing irrelevance to the contemporary concerns of Moslems.

The Ottoman Empire:  1290-1922
The Abbasids, along with their capital of Baghdad, were annihilated by the Mongols in 1258.  In that same year, the founder of the Ottoman Empire, Osman I, was born.

The Ottoman Empire and the dynasty that ruled it for six and a half centuries were without precedent in Moslem history in size, achievement, and durability.  Note that the Ottomans were Turks, not Arabs, and subsumed the Arab world within their rule.  Their capital was Constantinople (present-day Istanbul), captured from the Byzantine Greeks in 1453.

For most of its existence, the empire was home to more than half of all Moslems and synonymous with Islam for many inside and outside of it. It is of special interest, therefore, to trace the historical role and evolution of sharia in this most important Moslem state.

What we see is a picture already familiar from the examples of the previous empires examined, with some additional evidence of sultans using sharia for legitimization purposes as divinely-inspired Moslem rulers, even as they progressively curtailed its influence in the judicial and political realm.

The most significant Ottoman departure from religion in the judicial area was the development of a clearly non-religious corpus juris called kanun (from the Greek kanon, Latin canon). Popularly known as kanun osmani (Ottoman law), kanun borrowed freely from Turkish customary law and from the old Turko-Mongol tradition of popular law (yasa) as practiced under Ghenghis Khan and other Mongol rulers.[10]

The new law was promulgated by Sultan Mehmed II immediately after the fall of Constantinople, which probably means that it had been worked on for quite a while before that.

It was explicitly intended to be a secular law and implicitly a counterweight to sharia, as evident in the sultan’s description of it as "comprehensive and detailed regulations … of secular criminal law and procedure" with "orders to assemble them in the form of codes known as kanunname."[11]

Once formally integrated in written form, the various sultan edicts that made up the new law, the kanunname, became popularly known as kanun.

Kanun was a fully developed law code shortly after its promulgation and as such a development without precedent in Islamic history because it derived its authority not from the sharia but from the unlimited power of the sultan.

While lip service continued to be paid to sharia by Ottoman authorities, the very existence of the new law was eloquent testimony that sharia was now officially viewed as incapable of dealing with the problems Ottoman society faced.

This was particularly apparent in several key areas where sharia had become largely irrelevant to Ottoman circumstances, such as criminal law, taxation and property rights, the rights and duties of the individual, and a host of legal issues related to governance and its administration in the multi-ethnic and multi-confessional Ottoman state.

The last was an area of law about which sharia had very little to say that was not either irrelevant or harshly discriminatory and, even by that time, outdated. Kanun therefore dealt with "the form of government, its notables and their sphere of authority, their relationship with the Sultan, their ranks and degrees, promotion, salary, retirement and punishment."[12]

Unlike sharia, kanun was also designed to apply to the non-Moslem subjects of the Ottoman empire, including the large numbers of European Christians that had been incorporated in the empire in the course of the fifteenth century. Officially, kanun had jurisdiction only in areas where Islamic law was unclear; in fact, in the words of a scholar, "the kanun dominated over the sharia, the latter being valid in those topics where there was no kanun."[13]

In fact, the most famous and successful of all Ottoman sultans, Suleiman (1494-1566), is known in the West by the honorific The Magnificent – but in the Islamic world he is honored as Kanuni, The Lawgiver.

The de facto elevation of kanun as the most important law of the land had a number of consequences in the administration of Ottoman justice that taken together reflected the significant erosion of sharia’s hold on society during this period.

Perhaps the most important one was the transformation of the qadi institution from one that was essentially a religious office to one that now administered both sharia and secular justice, which further diluted the authority of the ulema.

To the extent that kanun was the dominant mode of dispensing justice and that some of its features, such as those on inheritance, taxes, regulations, fines, etc., were contrary to sharia, this arrangement implied that sharia was defective.[14]

It also forced the religious judges, most of whom had little secular education or knowledge, to study the kanun and try to understand its secular principles. One result was the casual disregard of sharia tenets whenever the qadis saw it expedient in their kanun rulings; another the occasional appearance of secular concepts even in sharia rulings.

The highest Moslem authority in the land during the reign of Suleiman, the Sheikh ul-Islam, Ebusuud Efendi (1545-74), for example, issued fatwas justifying charging interest (for a discussion of sharia finance and interest, see Chapter VIII below).

There were other institutions dispensing justice that circumscribed Islamic law as well. Although there were no mazalim courts in the Ottoman empire as such, police courts called subashi continued to function.  Over time their role seems to have evolved into something close to a prosecutor’s office.

Last but far from least, the sultan himself occasionally dispensed justice in what was known as the sultan’s divan (council). A body made of the highest state officials, and chaired either by the sultan himself or the grand vizir, the divan is reported to have met on a nearly daily basis and to have acted as both a court of first instance and an appeals court.[15]

As the Ottoman empire began its long and irreversible decline after its failure to take Vienna in 1683, two opposed tendencies in Ottoman attitudes toward the law became visible.

The first one was tacit and sometimes quite open resistance to the secularizing tendencies of kanun law on the part of the ulema and the muftis. Neither one of these two conservative groups were happy with the kanun and the subordinate position in which they and sharia had found themselves.

There was not very much they could do apart from grumbling, however, since they had become state employees under the Ottomans and challenging the rulers directly was risky.

They therefore, restricted themselves to trying to persuade the ruling elites that the decline of the empire was due to the lack of piousness among the people and urging a return to the sources of Islamic glory, a phenomenon similar to present-day Islamist teaching.

Occasionally, especially after some grievous military defeat, they made some progress, and a bout of religious zeal and oppression of infidels ensued. For the most part, though, these relapses did not last long, and the ulema never regained the exalted status it had enjoyed in previous times.

Arrayed on the other side were reformist forces who believed that the cause of Ottoman decline was to be sought in the failure to modernize and learn from the Europeans.

This approach was ultimately successful, when Mustafa Kemal Ataturk (1881-1938) dispensed with Islam as a state religion, abolished the sharia courts, eleiminated the caliphate, and fully embraced the European secular model early in the twentieth century. But serious efforts to modernize the state and curtail even further the role of Islamic dogmatism took place long before that.

A series of reforms collectively known as the Tanzimat (reform) were introduced in the 1839-71 period that for the first time used the European political lexicon to describe the reform imperatives of a Moslem state.

Much of this was due to the growing belief among Ottoman intellectuals that Europe’s military, economic, and scientific successes were the result of its superior political system.  The Tanzimat reformers thus looked openly to Europe, and especially France, as models worth emulating.

In the judicial realm, these reforms abolished the huddud punishments and limited sharia essentially to the adjudication of family law for Moslems. Further, a three-level appeals court was instituted and an effort was made to codify Hanafi fiqh through a mixed religious-secular code called mecelle.

More importantly, Sultan Abdulmecit I (reigned 1839-76) undermined the very raison d’être of sharia by declaring that "the difference of religion and sect among the subjects is something concerning only their persons and not affecting their rights of citizenship" and arguing further that no discrimination on the basis of religion will be tolerated henceforth.[16]

The Tanzimat reforms were ultimately unsuccessful in arresting the Ottoman state’s advanced decay, but they did show that a Moslem state had on its own reached the conclusion that maintaining sharia law was incompatible with modernization.

The Moghul Empire: 1526-1804 
At about the time the Ottomans reached the peak of their power and territorial expansion under Suleiman the Magnificent/Lawgiver in the sixteenth century, another powerful Moslem state rose in the East and for nearly two centuries epitomized the idea of a tolerant and successful multi-confessional Islamic polity .

It came to be known as the Mughal (Hindi pronunciation of Mongol) Empire and incorporated much of what is today Iran, Afghanistan, and large parts of India. Claiming direct descent from the great Mongol warriors Ghengis Khan and Tamerlane, the Mughals ruled over a vast empire with a population incorporating both Shia and Sunni Islam, but dominated numerically by Hindus.  

A number of factors contributed to a set of circumstances that facilitated the emergence of perhaps the most enlightened Moslem state of its age. These include a number of enlightened Mughal leaders and the fact that the dominant language and culture of the court was Persian with its sophisticated traditions in politics, literature and the arts.

More importantly in terms of religion, the Mughals presided over an Islamic idiom that, to an even greater extent than was the case in the Ottoman Empire, was dominated by the more peaceful, mystical, and individualistic traditions of Sufi Islam at the expense of the rigid conservatism of the ulema.[17]

Finally, and no less significant, was the presence in Mughal lands of an emerging Hindu-Islamic syncretism that in some cases pointed to the emergence of a new hybrid religion.

Given these conditions, the founder of the empire, Babur (1483-1531), seemed to have understood early on that tolerance of religious differences was a key to successful rule over the diverse creeds, as when he counseled his son and successor Humayun:

"The realm of Hindustan is full of diverse creeds…It is proper that thou, with heart cleansed of all religious bigotry, should dispense justice according to the tenets of each community…And the temples and abodes of worship of every Community under the imperial sway, you should not damage…The progress of Islam is better with the sword of kindness, not with the sword of oppression."[18]

This belief in the imperative of religious tolerance, unusual for a Moslem ruler, was fully put into practice by Babur’s grandchild and greatest of all Mughal emperors, Akbar The Great (1542-1605), who reigned the realm for half a century.

Akbar, like his father Humayun and perhaps Babur himself, was strongly influenced by Sufism and its article of faith that a true believer can receive "inspiration and intuition directly from God," an idea bordering on the heretical for the orthodox ulema, perhaps because it tended to make them irrelevant as purveyors of Islamic truth.

But Akbar went further and much like the falsafa of the Abbasid period, made reason and critical inquiry an essential precondition for knowing God. To him this meant that all religions were capable of divine recognition and reason and it was the obligation of the ruler to recognize them as such.

A notion diametrically opposed to the philosophy of sharia was eloquently expressed in the words of his closest advisor, Abul Fadl (1551-1602): "It has been our disposition from the beginning not to pay attention to the differences of religion and to regard all the tribes of mankind as God’s servants. It must be considered that divine mercy attaches itself to every form of creed."[19]

At the same time, Akbar used his understanding of religion and tolerance for other creeds to buttress his own role as an infallible and divinely-inspired ruler and spiritual teacher of all of his subjects, a notion more than vaguely reminiscent of Plato’s philosopher king. 

In practical terms, Akbar went further than any Moslem ruler before him in doing away with much of what made Islam and sharia incapable of tolerating other religions as equal. He repealed all aspects of sharia that discriminated against non-Moslems and dealt a severe blow to the orthodoxy by ruling that sharia is not the only or even principal way to God, and that ‘blind imitation" (taqlid) of sharia dogma was to be avoided.

He then denounced the practice of converting people to Islam by force, allowed those so converted to revert to their previous religion without the threat of apostasy, and prohibited further conversions.

Other essentially anti-­sharia measures included revoking grants to Islamic waqf institutions and extending them instead to Hindus, Zoroastrians and yogis. Finally, in 1579, Akbar abolished the jizya tax on non-Moslems, which had always been a symbol of the superiority of the Moslems and the subjugated status of all others.

Akbar’s revolutionary policies resulted in an influx of Hindus, Parsis, and other non-Moslems into the administration of the Mughal Empire and ushered in a period of general peace and prosperity that lasted another half century after his death, culminating in the reign of Akbar’s grandson (r. 1627-1658), builder of the Taj Mahal.

Eventually, under Shah Jehan’s son Aurangzeb (r. 1659-1707) Moslem orthodoxy and sharia were brutally reimposed, ushering in a period of turmoil and internecine conflict that doomed the Mughal Empire in short order.  

Next week in Chapter V, we’ll discuss Radical Islam Resurgent:  The origin and evolution of modern Islamism.
 

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[1]   Joseph Schacht, "Law and Justice," Cambridge Encyclopedia of Islam, Vol. II, pt.VIII/chapter 4, p. 539.

[2]   Ibid., pp. 540-41.

[3]   Ibid., p. 544.

[4]   Numerous examples of the contrived nature of many hadith, including the story of one faqih who admitted to fabricating four thousand reports, may be found in Alfred Guillaume, The Traditions of Islam: An Introduction to the Study of Hadith Literature, Beirut, 1966.

[5]   For a discussion, see Antony Black, The History of Islamic Political Thought, Routledge, New York, 2001, pp. 21-24. 

[6]   According to Joseph Schacht, in the Abbasid empire, the administration of most criminal justice was taken out of the jurisdiction of sharia law and given to the police.

[7]   See Black, History of Islamic Political Thought, p. 95.

[8]   Knut S. Vikor, Between God and the Sultan: A History of Islamic Law, Oxford University Press, 2005, p.193.

[9]  Ibid., pp. 193-94.

[10]  For a detailed discussion see Stanford Shaw, "Empire of the Ghazis: The Rise and Decline of the Ottoman Empire 1280-1808," in History of the Ottoman Empire and Modern Turkey, Vol. 1, Cambridge University Press, 1976. Also see Black, History of Islamic Political Thought, pp. 210-15, and Vikor, Between God and the Sultan, pp. 206-16.

[11]  Uriel Heyd, Studies in Old Ottoman Criminal Law, ed. V.L. Menage, Oxford, The Clarendon Press, 1973, as cited in Black, p. 210.

[12]  Black. p. 211.

[13]  Vikor, p. 208.

[14]  Black, p. 213.

[15]  Martin Shapiro, "The Courts of Islam and the Problem of Appeal," in Courts, University of Chicago Press, 1981, pp. 194-222.

[16]  Black, pp. 281-82.

[17]  For a perceptive discussion see Black, especially Chapter 23, "India and the Mughals," pp. 239-50.

[18]  Ibid., p.240.

[19]  Ibid., p.241.