2 ‘God cannot be harmed'

On Huquq Allah/Huquq al-‘Ibad continuum

Wael Hallaq

I

The shaft concept of haqq¹ navigates the cosmological-sociological spectrum robustly, from one end to the other.

Like all else in the phenomenological world — the world that is explained nowadays through phenomenology and the sociology of knowledge — the very idea of haqq is itself a derivative of the real and not always a fully comprehensible concept as presumably appearing in the divine vulgate, a concept whose contents and boundaries remain subject to an indef­inite and unceasing interpretive and intellectual quest of the human mind. The derivative is also no more than an approximate copy of the original, for the very challenge of the divine to the human kind — whose originary dilemma was the very concept of rational ‘autonomy’ represented in the Edenic Fall — is precisely the endless exercise of the mind to uncover the moral and ethical in worldly and social phenomena.

As a derivative, then, haqq acquires different meanings within the various and varied intellectual and commentarial-textual traditions that made up much of the discursive forma­tions of Islam for the 12 centuries prior to colonial conquest. In Sufism, for instance, al-Haqq acquired socio-cosmological meanings of spirituality and piety that raised the bar of ethical engagement in the world through care of the self and individualistic self-definitions and redefinitions of behaviour.

If the higher forms of Sufism were not for everyone, the Shari ‘ah was designed and spe­cifically intended precisely to engender internal discipline and to regulate human behaviour in psychological ways across the entire social spectrum, leaving no type of person or recog­nizable space unregulated, be it a woman or a man, a minor or a major, the mentally firm or infirm, a proprietor or dispossessed, a free person or a slave, and so on. But it also integrated into its own concepts of justice an array of disciplines and ideas, ranging from moderated forms of mysticism, to logic, theology, adab and poetry.³

Due to its structural centrality, haqq had therefore to be defined simultaneously as a theo­logical, moral, and legal concept, having navigated the waters that have flown and continue to flow from the divine to the humanly subordinate and even earthly banal. If the world is made by one mind, then it must be interconnected, and if all its parts relate to each other — which they do — then every part is as important as the next, and all, small and great, are seen to exist in symbiosis. The meanings and imperatives that attach to the concept must thus vary from one stage of the flow to the next. They must accommodate each resting place on the sojourn downward. The purest and most perfect form — that which we may characterize as the ideal or highest desideratum — lies at the source of the flow, where al-Lawh al-Mahfuz is kept.⁴ But the proverbial water must flow further down, treading the physical world of humans and their social habitats, languages, customs and forms of knowledge, all of which being explicitly admitted by the entire range of Muslim intellectuals who discoursed on it as varied in the extreme.

The Shari'ah’s domain, specialized yet extensive, begins at the point at which the divine Word reaches the realm of human understanding, the Word itself being stratified and diffused in its Manifestation (tajallT) throughout the Signs (ayat) of Creation (khalq) as well as those of the Quran sentential structure.

This ‘downward’ trajectory of haqq meant the non-separation of the low from high prin­ciples from which the concept emanated. In this trajectory, God is ever-present and most explicitly involved in regulating the social order. As we will see, the communal and col­lective, as much as the individual and particular, appear always as the locus of God’s heavy involvement, without positioning any of these in opposition or conflict with the others. The lower the flow of the moral code and its regulative domain, the more autonomy is granted to the individual.⁶ Yet, however thick this autonomy may be, it remains metaphorical at best, for just as humans cannot really own any material objects in the world, they cannot possess rights that are not derivative. Ownership of tangible matter and rights is never absolute, an intended tenuousness that did a performative work of immense importance, in terms of redistribution of wealth and much else.

If haqq is the consequence and effect of divine volition, then it is also a divine providence and bounty, seen to derive its moral thrust and juridical rules from revelatory textuality as adapted to human circumstance and surround. Although this textuality merely intimates and gestures (yma j at God’s will, leaving the moral-juridical challenge of living life as an ulti­mately human determination and decision (li-yabluwakum ayyukum ahsanu ‘amalan) (Q.

Yet, the strength and seriousness of the derivatives depend on the staying power and po­tency of that of which they are derivatives. Just as there is no single haqq devoid of God’s pres­ence, there cannot be any haqq without a suffusive layer in it of human interest and welfare, even though it may appear to be a purely ordained haqq of God. As al-Shatibi (d. 790/1388) pointedly sums up the matter,

every Shari value (hukm) must ineluctably contain a haqq of an individual believer (Zi-Z- 'ibad) that is geared toward serving (an interest) either in this World or the Next, this (being based on the principle that) the Shari 'ah was created for the purpose of serving the interest of Muslims.⁷

II

Haqq encompasses a range of meanings that are intimately connected to judicial decision, owned property (mal mamluk), the property itself, the very attribute of ownership, entitle­ment,⁸ and all in rem and in personam claims. It signifies a legal stipulation that determines a right — over something or someone — or an obligation, thus covering the entire range of so-called religious obligations, civil rights, social codes of proper conduct, and the rights and obligations ruler and subjects possess within the body politic. This definition must always account for an essential connection between a right and a person to whom the right will ulti­mately be connected. The existence of an actual haqq (as opposed to a nominal one) without a person or entity associated with it thus becomes a conceptual and ontological impossibility, since a right must by definition presuppose a connection to, or implication of, a conception of person, subject or entity.⁹

The ontological-cosmological span of haqq’s range allowed the jurists to create a tripar­tite typology in which the huquq are classified as God’s rights (huqiiq Allah), believers’ rights (huqiiq al-'ibid), and a mixture that straddles the two.

Before proceeding, the term individual requires some clarification since any explication of huquq al-'ibid seems to invoke the individual and his or her ‘rights’.¹⁰ ‘Individual rights’ or ‘rights of the individual’ must henceforth be taken to refer not to the modern meaning of ‘individual’ but rather to the ‘believing individual’ and/or ‘believing individuals’, the subject and object of taklif. In this designation, ‘belief’ is emphatically a necessary condition, since huqiiq arise because of the ontological presupposition of belief. The distinction is thus not between an individual as opposed to a group, a collective, or society at large, but rather be­tween believers and God; or between considerations pertaining to the individual as the locus of personal rights and some areas of particularly grave communal concern and foundations of worship. It is, in other words, modulating the individual in communal space, as it is no less modulating the communal in the larger environment of creation. It would nonetheless be incorrect in this context to arrogate a supra-human status to God in terms of the huquq of non-'ibid, for much of huqiiq Allah are in fact huquq that relate to, and are often exclusively associated with, society at large, even when these take abstract or metaphysical forms.

The point here is that the subject of distinction is not between the social collective and the private individual, or the private and the public — binaries that are distinctly modern. Rather, the distinction is between spheres in which there arises great concern with matters related to communal welfare and its moral fabric, on the one hand, and those related to private interests and the sacredness of individual rights within communal contexts, on the other. To speak of the distinction as one that pits the individual against the group would thus be misleading, since, as we will see, many huquq Allah pertained to individual rights while a number of huquq al-'ibdd pertained to collective or group interests.

III

It was a pervasive and consensus-like understanding among jurists and theologians alike that God’s rights are generally, though not exclusively, intended to regulate the sphere of ‘public’ interest where things in the world belong to no one person or group in particular. They are attributed to God, one jurist declared, because of the crucial importance of this sphere, let alone the profound concern that a coercive or oppressive (political) power (ahad min al-jabdbira) might attempt to control it as his own, and to do with it as he likes.¹¹ This seems to be a manifestation of providence rather than defining powers of control or rule. Clearly, the designation of God here is nominal, for it was understood by everyone that God the Self-Sufficient does not need to be given such honours or privileges, because, having created them Himself, He owned them ab initio and without qualification. Nor can He be harmed by conceding these rights, but fragile humans on the other hand can, and easily so.¹²

The jurists generally identify two distinctly different areas of the law that they deem to fall under God’s huquq. The first and readily identifiable area is that of the conventionally cat­egorized 'ibdddt, the so-called ‘rituals’ involving prayer, fasting, pilgrimage, alms-tax and a host of related branches of the law such as encouraging right and averting evil, commission of oaths, and generally acts related to niyya, where deliberate intent is an essential pre-condition for right practice.¹³ The other area is what may be called in pre-modern Shari'ah the ‘public’ sphere of criminal offences, ¹⁴ including hudud, discretionary punishments (taZdr), order on highways, public roads, ports, and public edifices, such as mosques, some waqfs, markets, bridges, etc.

There is, however, yet another area that straddles these different domains, namely kaffdrdt, ‘mixing penalty and worship’.¹⁵ These are forms of expiation for a variety of infractions rang­ing from having sexual intercourse during Ramadan fasting to breaking an oath.¹⁶

These huquq are generally said not to be subject to negotiation or reduction in their re­quirements of validity, procedure, or implementation. Nor are they subject to clemency, am­icable settlement, or concession of any sort.¹⁷ For instance, while ‘individual’s rights’, such as debts, can be forgiven, God’s rights are not subject, without legal cause,¹⁸ to human bargain­ing of any sort, be they huddd crimes or infractions as innocuous as a seemingly simple prayer. Whatever haqq the 'abd can lawfully relinquish is not one that can be claimed by God.¹⁹ Thus, punishment of sariqa-theft²⁰ or adultery, once established by a court of law, cannot be dis­posed of by the forgiveness of the theft victim or of the spouse of the adulterer, respectively. Nor, still, can God’s rights devolve upon the heirs, for these rights expire upon the expiry of the concerned charge, whether his or her faults relate to acts of worship or criminality.

Nonetheless, the uncompromising appearance of huquq Allah is somewhat deceptive, for in certain matters of the law, huqdq al- ‘ibad do take precedence over their counterparts on grounds of the law’s obligation to be lenient or forgiving.²¹ Withdrawal (rujd ‘) of zina con­fession, for instance, has the power to annul the hadd punishment;²² and so does repentance for the commission of highway robbery.²³ Al- ‘Izz ibn Abd al-Salam (d. 660/1262) enumer­ates several cases in which haqq al- ‘abd supersedes that of God, but one particular example demonstrates the intimacy and mutuality of the relationship between the two categories. As is well known, jihad is a right of God, leaving the emir as the supreme commander of its cam­paigns. In modern military conduct, the general’s order in the battlefield reigns supreme, the violation of which could lead to the serious charge of subordination or desertion. As I have shown elsewhere in the context of a comparison between the modern state and Shari ‘ah with regard to conscription,²⁴ the Shari ‘ah bestowed substantial autonomy over the combatants, passing over the commanding general’s orders. According to Shard regulations of armed engagement, combatants are permitted to withdraw (inhizdm) from the battleground should they themselves — individually or collectively — estimate that defeat is inevitable due to being outnumbered (idhd arba 'adad al-kafara ‘ala a ‘dad al-isldm).²⁵ In this picture, the Schmittian decision to invoke the absolute exception collapses in the face of individual moral and po­litical autonomy that eviscerates sovereignty’s absolute hold over life and death. Far from being Schmittian, huquq Allah are set aside in favour of huquq al- ‘ibad, precisely in one of the most crucial moments of the political, the body politic, and of the state’s architecture of life and death.

This autonomy relates to another feature that can be misleading to a modernly condi­tioned mind. Some Hanafi jurists held the position that a victim of a crime that is potentially classifiable within the category of huquq Allah may opt for a private settlement, in effect preempting governmental interference.²⁶ Only if he or she decides to sue in a court of law does the court decision become a matter of ‘state’ enforceability. There were some jurists who held opinions seemingly similar to the modern state’s model, whereby sultanic author­ity is granted an autonomous right to prosecute these categories of offences through Shari ‘ah courts. But it was by these courts’ law, not the government’s, that these huqdq were adjudged. We need not overstress, furthermore, that the very possibility of this ‘individual’ autonomy is absent from the modern state on principle (think, in particular, of homicide or of such examples as deserting the battlefield).

Huquq al- ‘ibad, on the other hand, pertain to the range of interests any person must enjoy, beginning with his right to buy and sell, gift, collect or forgive loans, entitlement to blood­money, damages, and her right to spousal support, alimony and the like. As intimated earlier, contrary to God’s rights, these rights can be forgiven, demanded, declined or otherwise. They are also liable to legacy, as in the case of children inheriting the right of their parent against a debtor (madin) or ‘misappropriator’ (=usurper=ghdsib). Whereas these rights are elaborated by the jurists with a keen eye to prevent interference by any external authority or agent, the opposite, as we saw, was not true. Huqdq Allah seem to be more malleable, negotia­ble and less ‘absolute’ than huquq al-‘ibad. No reduction of God’s rights, whatever its extent, can, after all, hurt Him in the least.

But the straddling of many huqiiq over the two categories necessarily entailed a constant search for balance.²⁷ Certain legal spheres may conjoin God’s and believer’s rights, in which case one type of right may overshadow or dominate over the other. Among the huddd, qadhf directly affects a person’s reputation and standing in the community, but God’s rights — according to the Hanafis²⁸ — take precedence since the offence has public ramifications, affecting, as it were, the entire realm of social and communal value. The individual here is a microscopic instance of society at large, and his or her rights in this respect capture and distill the rights of all individuals making up the community (or so-called society).

Homicide, on the other hand, represents an otherwise ‘mixed’ area of the law where the individual’s rights dominate over those of God’s. As attested in the Qur’an and hadith, God has a right or at least a regulative interest in murder, since the heinousness of the crime surely affects the entire community in which it occurs. It is a ‘crime against the community’, if not ‘against humanity’,²⁹ properly speaking. Yet, the harm is also very specific, directly and most perniciously affecting the victim and by extension the victim’s kin who have, further­more, the statutory power to determine the type of penalty or even opt for forgiveness.³⁰ There would probably be no difference between qadhf and homicide in terms of huquq clas­sification had it not been for the statutory Quranic verse, one that lacks parallel in the case of qadhf, a comparatively less heinous crime. It would seem that customary law in the case of homicide was so entrenched within tribal structures of the pre-Islamic Near East that a degree of autonomy was granted the victim’s kin in opting for one of the three courses of action available to them.³¹ As an offence, qadhf must have possessed weaker roots in agnatic or communal structures (especially in Iraq), thus allowing Hanafi fiqh to take individual agency out of the law. Social good and public interest thus cannot be always fixed as an ever-present consideration, not least for the reason that homicide is a significantly harder crime on society than qadhf is, and yet the huquq of the individuals involved (the victim’s kin) override those of God.

Historical analysis here might legitimately make demands on legal analysis of doctrine and reasoning, in that rationalization of doctrine must be recognized to have come subse­quent to particular and often isolated historical developments. Both qisas and qadhf acquired their substantive content and formal shape prior to the rise of the doctrinal distinction between huquq Allah and huquq al-‘ibdd. Which is also to say that the doctrine of huquq is, indeed, a post eventum justification that dialectically but mildly (if not externally) contributed to the refinements in legal doctrine at a later stage (mostly after the third/ninth century, when the legal system had already taken its general shape). We therefore cannot make too much of it in the way of showing the ‘naturalistic assumptions’ on the basis of which fiqhi analysis and reasoning created and distributed rights, duties and public commitments.³²

IV

But it is also a tall claim to argue for the equation of huquq Allah with political power. Some scholars make strong claims in this regard, equating huquq Allah with ‘state’ control, while others adopt a mitigated version of these claims in favour of a graded landscape whereby the more the huquq inch towards God the more discretion political power has over them. Such theories may not have taken sufficient notice of two important considerations: First, the jurisdiction of political power must be understood in a highly constrained sense, for the role of that power was executive, not legislative nor judicial. The ‘state’ (in our context an inaccurate term at best) did not legislate huquq Allah, nor did it adjudicate them as a matter of substantive law. According to some jurists, the sultanic executive can prosecute certain offences irrespective of whether or not the victim initiates a lawsuit. But prosecution here must be understood to mean the bringing of violators before Shari'ah courts and executing those courts’ judgments against them, with nearly no other function or role in between. In the majority of cases, the executive only enforced the courts’ verdicts, and this on the terms of a law that was not of its own making. Any subsidiary sultanic enactments within these spheres were administrative in the thinnest sense of the word,³³ meagre in substance, sporadic in appearance and generally ephemeral (often repealed upon the death of the sultan issuing them).³⁴ Furthermore, these administrative measures often came to reinforce and elaborate on fiqh’s subject matter.

Second, the claim has a short travelling span. As we saw, a significant part of huquq Allah was not of interest to political authority because they were deemed to be matters of worship. Aside from managing pilgrimage logistics, securing roads to Mecca and occasional direct management in the levy of zakat, the greater parts of the arkan lay outside of the reach of political power. The little understood technologies of the self (significantly residing within the subjective performative power of the arkan) were and continued to be until the present of no interest to political power, not even to the modern state or its legislative arm of social en­gineering. To arrogate intimate connections between huquq Allah and political power is not only to misunderstand both huquq Allah and political power in pre-modern Islam, but also to subscribe to unfounded and colonialist ideas of ‘Asiatic despotism’, ideas initially constructed precisely to justify and rationalize Europe’s colonialist ventures in Asia and Africa.

Perhaps it is not out of place to note here a representative Orientalist understanding of these huquq, one that is both incoherent and anachronistic. In an article on the subject, Baber Johansen is at pains to navigate a narrative that genuinely attempts to reconcile his own, though culturally engrained, biases that emit an ‘Asiatic despotism’ narrative with a fiqht counter narrative that insisted on the supremacy of Shariah's rule of law. His choice charac­terization of huquq Allah is the attribute of the ‘absolute’, a term that recurs in the article with astounding frequency. It is not surprising then to read in Johansen that ‘in the public sphere’ the jurists ‘expect the individual to act as servant of the public interest. Therefore the private legal person may not derive any personal advantage from his role as servant. This is obvious for the “claims of God” which consists of acts of worship. No worldly reward is granted to the individual legal person if he performs his prayers or fasts during Ramadan’.³⁵ Why prayer or fasting now belongs to the ‘public sphere’ (a purely modern conception with spe­cifically modern political contents and connotations) is not clear. In fact, Johansen does not trouble himself with explaining the qualitative difference between ‘penal law’ and the arkan (inaccurately labelled ritual law) insofar as they both equally belong to huquq Allah. If there is any meaning to ‘privacy’ or ‘private domain’, it is precisely in that sphere which no political agency can penetrate: that between the believer’s mind and heart and his or her God. This is the inner core of the ‘private’, something that the genius of the modern state understood so well that with all its powers of domination and social engineering, it did not as much attempt to enter that domain, at least not openly or directly. But prayer is at one and the same time a ‘political’ concept, not only because of the assembly rights that it trumps in a group setting, but also because of its role in the construction of a robust notion of positive liberty, a notion that is nothing if not pregnant with political implications.³⁶

I, of course, need not rehearse here the relationship between what Johansen calls ‘reward’ and the potent concept of positive liberty that the technologies of the self engender. This much-neglected form of liberty gains specific and special importance in cultivating a sub­jectivity that does have its own reward (to which mass movements of Sufism surely could attest). To portray the arkan as mere ‘rituals’ is to miss the power that prayer and fasting and pilgrimage, among others, engender in the production of ‘rights’ and ‘duties’ that define the quality of ‘freedom’.³⁷ This is consistent with the argument I made elsewhere that these arkan construct a moral subjectivity that transcends but does not ignore politics, government, or any aspect of material life. If anything, this technology — which is moral in the first instance — constructs a subject whose engagement with the minutiae of worldly life is as important as dedication of the moral self to the ethical design of transcendental power.

Instead ofviewing the relationship of prayer and fasting to huqdq Allah in this vein, Johan­sen sees them as indicative of servitude, no more than an aspect of the manifestation of ‘sur­render’, for which Islam is so well known in Johansen’s Europe. To be in the realm of huqdq Allah is then to stand in the ‘role as a servant’. That’s all the Muslim subject can do vis-à-vis political power. In fact, it seems that this is just the beginning of servitude and unprivilege, not their middle or culmination. The process of servitude can even be elided into subtraction of rights, a servitude that not only exploits labor but devours whatever wealth remains in the possession of the ‘state’s’ subject. It is not just in prayer and fasting that servitude appears, but also in huqdq Allah’s provinces of taxation and criminal law, ‘especially in... theft (sariqa)’.

The owner of the stolen property can bring the case before the qadi and request pun­ishment of the thief. But if he does so, he forsakes his claim to financial compensation for his property. Private claims and liabilities cannot be regulated by means of public punishment: al-hadd wa-l- daman la yagatmi'dn (sic.; yajtami'dn). If the government makes use of its absolute prerogatives, it does not do so in order to secure private advantages to private legal persons. If a ‘claim of God’ is fulfilled, it excludes the fulfillment of any ‘claims of men’ resulting from the same action. The public and the private interests cannot be interchanged. God does not tolerate any sharing of his claims with individual legal persons.³⁸

Aside from positing oppositional binaries and mutual exclusions of ‘interests’, the Muslim God here is made to resemble Europe’s Christian God as practised by the medievalist Catholic Church: selfish, intolerant and even vengeful (we even notice that ‘God’s rights’ now takes over the native and Arabicate ‘huqddq Allah’, which our author uses nearly everywhere else). In this imagination, God sets himself apart from the very society he created and does so in virulently oppositional and hostile ways. It is an imaginary narrative that contradicts the very raison d’etre of the huqdq theory, subverting it and eviscerating its social and ethico-humanistic intentions.

The huqdq theory was set up not only to define the limits of, and protect, individual and private ‘transactions’ but also, and perhaps more importantly, to prop up the technologies of the self and social control as integral to the kingdom of God on earth. God here is both sociology and anthropology; He is economics and practical theology, learning and mercan­tile dealings. Far from setting Himself apart from society, God is society and its interests. If zakat’s exclusive raison d’etre is to aid the poor, and if it is simultaneously a haqq Allah, then God is either the poor or their embodiment. This charitable institution was not a social proj­ect whose function is to contain crises that are the result of excesses committed, in the name of a particular political organization, by one class against another: rather, it was an epitome of a paradigmatic structure that enabled charity and philanthropy on the widest societal scale ever possible. The zakat, sadaqdt and waqf³⁹ (this latter claiming an average of 50% of all real property in the Muslim world)⁴⁰ extended so far and wide, and so deeply into the social in­stitutions of Islam across the centuries and regions, that ‘God’ here acquires a diametrically opposite function and image to that which Europe’s Christian God occupied. Huquq Allah, as ‘God’ implemented them in real practice within the redistributive wealth institutions and social practices, stood in comparative antithesis to the extraordinary wealth expropriated by Europe’s Catholic Church for the expansion of its own power.

It is also no less curious that Hanafi law in Johansen’s account is emphatically character­ized as ‘proprietor’-oriented, yet the same school that places such a premium on ‘proprietor­ship’ subordinates the entire range of its proprietary principles when political authority shows up on the discursive scene. This quashing of proprietary rights is double-edged, furthermore. The ‘state’ does not only engage in oppressing individual rights to property and to transact­ing in respect of these properties, however lawful these may be, but it extends its dominion further to exercise a measure of punitiveness at the expense of the proprietary individual. It is either the rights of the ‘state’ or of the individual, but not both. ‘If a “claim of God” is ful­filled, it excludes the fulfillment of any claims of men.’

This interpretation is in fact both factually incomplete and interpretively wrongheaded. We have seen that while there are rights that exclusively belong either to God or ‘man’, there are many more that contain a mix of the two. The ‘mix’ is a main theme of the jurists’ discourse, one that preoccupied them without respite. A number of distinguished jurists argued that strictly speaking all huquq straddle the God-human spectrum.⁴¹ Second, even if Johansen’s interpretation of Hanafi law is correct (which it is not), then which Hanafi jurists adopted such positions as he describes in the quoted passage above? What might Johansen make of those who proffered different views, within and without the Hanafi school? How did pluralistic doctrine affect actual practice?

An answer to these questions may be a tall order within the confines of this space: focusing on Johansen’s interpretation of Hanafi doctrine might nonetheless be sufficient to show the unjustifiable casting of huquq in political terms (and much less despotic political terms). It is the universal juristic doctrine in Sunnite Islam that restoration of the stolen property and the penalty of amputation are in principle required.⁴² Abu Hanifa (d. 150/767) and every mem­ber of his school accepted this doctrine. The only condition that Abu Hanifa — together with some other Hanafis, Thawri (d. 161/778) and Ibn Abi Layla (d. 148/765) — insisted on was that the stolen property be itself (‘ayn) still in existence and retrievable. Otherwise, he held that the meting out of penalty precludes compensatory damages. Malik and his colleagues in the school added that if the thief is well-to-do, then the plaintiff can indeed pursue damages (that is, even if the stolen object itself is not retrievable) but this right is waived if the thief is poor. Ibn Rushd (d. 520/1126) explains that the doctrine which combines punishment with restitution is based on the reasoning that sariqa trumps haqq Allah and haqq al- 'abd together, which is to say that even if the stolen object itself is not to be found, a monetary compensa­tion is to be made instead, and alongside the punishment. Abu Hanifa and his followers held that insistence on compensatory damages and penalty would amount to punishing the same offence twice. For them, the amputation penalty stands in lieu of damages (inna al-qat' huwa badal min al-ghurm),⁴³ with the distinct implication that the issue for them is one of fairness towards the thief: however offensive his or her deed, he or she should not be punished twice for the same offence. And this is precisely what al-Sha‘rani argues. In his al-Mizan al-Kubra (The Great Balance, a work that attempts to show how al-Shari 'ah al-samha ' balances and evens things out in its approaches to society and life⁴⁴), this jurist explains that the reasoning behind the various doctrines on this point are concerned exclusively with the defendant and not the plaintiff or executive authority. In the case of the Hanafi single punishment as well as in the case of waiving the plaintiff’s right to restitution when the thief is bankrupt, the reasoning is one and the same: in the first case, leniency that is intended to avert double punishment; and in the second case, sympathy with the thief’s poverty. The thief deserves ‘leniency because there is a whiff of an excuse, namely, his need and poverty’.⁴⁵

The Hanafi doctrine thus seems more concerned with fairness towards the defendant than with even preserving the integrity of the individual’s proprietary rights, however inviolate these latter were. But it should not escape us that proprietary rights are invoked only insofar as the stolen property remains in existence, which is to say that if it is not in existence, the demand that the thief be punished and simultaneously be required to secure debts to pay for what he or she stole would have been deemed both excessive and oppressive. Poverty, in other words, defeats wealth, and this is a view that would a fortiori preclude the interests of ex­ecutive power, routinely seen as potentially and inherently abusive. Thus a proper reading of juristic discourse on this matter squarely militates against Johansen’s interpretation. The single, rather than dual, punishment both protects the defendant from two punishments for one offence and affords the plaintiff the option of securing his or her property if he or she so chooses to do.

But latent misinterpretation does not stop here, nor is it devoid of self-contradiction. Johansen’s notion of the ‘absolute’ straddles the two divides of his narrative: on the one hand, it is an oppressive ‘absolute’, doing the work of the European narrative of ‘Asiatic despotism’, and, on the other hand (when Johansen faces the reality of the jurists and their persistent discourses), it is the Shari'ah's unwavering and resilient defense of individual and communal rights against possible forms of oppression. He recognizes that

The lawyers try to protect the rights of the individual against all possible infringements by the authorities. They do this by closely defining those actions of the political author­ity that are legitimized as huquq Allah, thereby narrowing down the possibility of state interference in the affairs of the private legal persons.⁴⁶

After spending numerous pages speaking of the ‘absolute’ character of huquq Allah as the do­main in which the ‘Islamic state’ has ‘absolute’ rights, Johansen now makes the transition to the jurists’ world and attributes partial will and agency to them: they ‘try’. But ‘trying’ turns out to be more than the term implies, even by Johansen’s account. Just before the end of the article, ‘trying’ begins to acquire intense connotations. For ‘the Hanafite lawyers,’ he writes,

the huquq Allah are the transcendent and religious sphere of the huquq al- ‘ibad and the necessary framework for their survival. This is why the huquq Allah are recognized as absolute by the Hanafite lawyers, and for this reason the government is the trustee of the public interest.⁴⁷

Any government trespassing these frontiers risks the demolition of its own legitimacy. This is not all, however. A ruler ‘interfering with the huquq al- ‘ibad should be treated just like any other person’,⁴⁸ a juristic doctrine that — I have elsewhere argued — amounts to the absence of any immunity associated with government personnel.⁴⁹ It appears that the main point Jo­hansen is attempting to drive home is captured in the following passage: ‘the government is entitled to exercise its absolute prerogative only in order to protect the realm of the exchange relations of the private owners. Government action loses its absolute character as soon as it interferes with the “claims of men”’.⁵⁰

It remains unclear what this ‘absolute’ means. All we can assert with confidence is that only towards the end of Johansen’s account does it begin to have no place in the sphere of huquq al-‘ibad. The jurists, he now seems to say, guarded these huquq with prejudice. In fact many of them — as Anver Emon has shown and as our discussion above has suggested⁵¹ — insisted on the preponderance of huquq al- 'ibad over huquq Allah when the two competed for priority of consideration. But what meaning, one might ask further, does this ‘absolute’ bear in huquq Allah if: (a) huquq Allah were systematically identified, reasoned and legislated by a civil population of jurists — private individuals whose erudition and learning ('ilm) in effect constituted the ‘legislative’ organ through which the law of the land was constructed and ar­ticulated?; (b) the law, in its substantive and procedural components, was administered by a judiciary that emanated from, and operated within, that autonomous community of jurists (a community that flourished within a legal epistemology and system of education of its own making, having been largely isolated from sultanic interference or management/gov- ernmentality; or, to put it in Foucaultian terms, from any recognizable form of bio-power)?; and (c) the verdict was the work of an autonomous judiciary? What remained in all this was essentially the execution of the verdict, undoubtedly the business and task of the executive.

The architecture of the modern state in this picture is entirely absent, an architecture under whose overwhelming spell Johansen seems to be writing. The sultanic executive was no such state, not even equivalent to its executive branch. The sultanic executive did not command the legislative or the judiciary, except for managing the outer organization of the court sys­tem; it did not make law to speak of (especially when we compare its qdnuns and extra-Shar'd administrative legislation with the modern ‘administrative state’);⁵² it did not carve out the private and public spheres, the boundaries of which the modern state delineates, controls and constantly negotiates in accordance with a calculus of power that has itself as its own teleol­ogy.⁵³ But most importantly, the sultanic executive was not invested in the logic ofjuristic reasoning and its teleology, which is to say that it saw its function as limited to an enforcer of the law and, most especially, the enforcer of the punishments of huquq Allah, without this al­ways implying that when people litigated within the sphere of huquq al- 'ibid, the government was not at times entrusted with the same duty of enforcing court decisions.⁵⁴

V

Representing the common doctrine, al-Shatibi insists that there are no huquq that exclusively belong to the individual, ones that are stripped of any trace of God’s haqq. This, al-Shatibi seems to argue, is an ontological impossibility. But equally impossible — based on the car­dinal premise that the Shari 'ah’s raison d’etre is serving nothing less than the best interests of Muslims — is any haqq that is exclusively God’s, for the 'ibdd are, after all, the matrix and locus of every haqq; without them there would be no huquq in the first place. It is customary for jurists, al-Shatibi says, to explain God’s huquq as those areas or points of the law where the 'abd has no choice, no agency, or no say (ld khdrata fdhi lil-mukallaf),⁵⁵ and whether these points or areas were rationally intelligible or not (as in the case of certain ‘rituals’). We may, for in­stance, understand why we should pray, but it is not entirely clear why the specific timing of these prayers, why, in other words, these five times, and not others, or why five and not four, seven or eight. Another way of delimiting the space of these huqiiq would be to say that any haqq relating to the Hereafter is God’s right, whereas haqq al- 'abd would be that which relates to her concerns and interests in this life. Which is also to say that the essentially transcenden­tal (and thus not entirely intelligible) defines the boundaries of God’s huqiiq, while that which belongs to normative human conduct defines the limits of it counterpart. The distinction then appears to be between 'ibdddt and ‘dddt, the former being ‘exclusively’ God’s while the latter ‘exclusively’ the believer’s. But in all of this, al-Shatibi is summing up a diversity within unity, bringing the divine to bear upon the human and vice versa.

Despite the persistence of typology and classification (which authorize the moral and the legal, splitting and joining at once, at times delineating enforcement and at others alleviat­ing the unbearable) there remains a constant and equally stubborn flow and counter-flow between these ‘rights’. They rarely ever seem to clash, and never are they defined in op­positional terms, but are rather conceived as constituting a continuity on a spectrum, and with each other. The highflying sufi who has already arrived at a stage that dispenses with the techniques of the Shari 'ah would find the ebb and flow of huquq not only most natural for those who need basic guidance but also descriptive of the limitless diversity within the greater unity. Little wonder then that al-Sharani wrote al-Mizan al-Kubra. For the jurist-sufi or sufi-jurist, these divisions and forced categorizations ultimately serve these techniques, simplifying the rationalized foundations of moral-legal obligation. Neither narrative negates the other; if anything, these are mutually enhancing performative discourses that seek to as­sert their own imperatives at best, but always within an overall unifying moral epistemology and teleology. They are themselves integral to the great variety whose teleology is One and the same. For the world is ultimately interconnected through One Logic, One Structure and One Matter. Categorization is an old performance, but oppositional fragmentation of categories is endemic to our modern forms of knowledge. To superimpose the latter on the former is to make the Other speak a language it never knew. It is to make the Other even more distant and less intelligible than it already is.

Notes

1 In classical Arabic, haqq is the singular form of huquq, but it is also an abstract noun signifying the idea, phenomenon or concept as an intangible entity. The plural form, however, was nearly always grounded in particular and concrete rights. In modern Arabic, the plural form has come to mean the abstract notion of ‘rights', and when combined with kulliyya (college), it referred to the modern ‘law school', where students learn about ‘rights' as well as laws that give rise to rights. Although ter­minological designation is not always significant or instructive, it is significant that the move from the pre-modern ‘madrasa to the ‘kulliyyat al-huquq signalled a shift in understanding the concept of ‘law' as a coercive state system: whereas 'ilm and dars (learning and study) embodied the technolo­gies of the self that engendered a particular form of hermeneutics — that is, where moral techniques of the self and ethical hermeneutical apparatus came together as a union — the ‘kulliyyat al-huquq mainly connotes the technical study of the law as a system of rights. This shift is paradigmatic, in the sense of deep change within the structural central domains of culture and social constitution. On paradigms and central domains, see Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), 6—13.

2 Farid Ud-Din Attar, The Conference of the Birds, trans. Afkham Darbandi and Dick Davis (New York: Penguin, 1984).

3 Cf Shahab Ahmed's What is Islam? (Princeton, NJ: Princeton University Press, 2016), in which he misinterprets my writings on the subject and attributes to me — as well as to others — an excessively narrow understanding of Shari'ah’s range and cultural embeddedness. On my theoretical and sub­stantive reservations with regard to the terminology of ‘law' and ‘legal', see Wael Hallaq, SharUa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 1—6, a work which Ahmed lists in his bibliography but which he does not seem to have read. On the paradigmatic stat­ure of the Shari'ah in terms of its engagements with various other central and peripheral domains, including mysticism, adab and much else, see The Impossible State, 6—15, and ch. 5.

4 Q. 85:22.

5 See also Wael Hallaq, ‘Moral Cosmology and the Structure of Life', in Re-Citing the Qur'an to Mo­dernity (in progress).

6 On qualifications pertaining to the concept of ‘individual', see section II of this volume.

7 Abu Is-haq al-Shatibi, Al-Muwafaqat fi Usul al-Ahkam, ed. Muhammad Muhyi al-Din ‘Abd al- Hamid, vol. 2 (Cairo: Maktabat M. ‘Ali Subayh, 1970), 233.

8 As in Q. 70:24-25.

9 ‘Subject' or ‘entity' is intended to enlarge the scope of definition beyond the natural person so that institutions like waqf (which are no less embedded in a matrix of huquq) are also taken into account.

10 Of course a proper, nuanced and full explanation of huquq al-'ibad (as well as huquq Allah) requires a near comprehensive account of thefiqh, discussing each of these huquq in its theoretical, substantive and juridical contexts. But then this begs the question, for if such an account offiqh is assumed, then the need for an explanation of the huquq would become superfluous.

11 ‘Ala’ al-Din al-Bukhari as cited in al-Mawsua al-Fiqhiyya, 45 vols (Kuwait: Wazarat al-Awqaf wa-l- Shu’un al-Islamiyya, 1993-2006), XVIII, 8.

12 ‘Ali b. Muhammad Sayf al-Din al-Amidi, Al-Ihkam fi Usul al-Ahkam, ed. ’Abd al-Razzaq ‘Afifi, 4 vols (Riyadh: Dar Sumay‘i, 2003), II, 332; Abu ‘Abdullah Badr al-Din al-Zarkashi, Al-Manthur fi al-Qawaid, ed. Muhammad Isma'il, 2 vols (Beirut: Dar al-Kutub al-'ilmiyya, 1421 AH/2000 AD), I, 299-300.

See Hallaq, SharVa, 229-30; Al-Shatibi, Muwafaqat, II, 333. Al-Shatibi expands the scope of niyya beyond the conventional delimitation, thereby including virtually the entire sphere of muamalat. From sales to giving loans and from marriage to divorce and pecuniary familial support, niyya is to be present (giving a loan thus can be a merely self-interested transaction of profit, but when inten­tion is present it would be motivated by a genuine feeling of extending support to a fellow Muslim (kama idha aqrada imtithalan li-l-amri bi-l-tawsi'a 'ala al-Muslim).

For qualifications with regard to the use of such terminology, see Hallaq, Shari'a, 308-9. Al-Zarkashi, Manthur, I, 299.

Ibid., I, 299, 203-4.

Although withdrawal of zina confession, for instance, has the power to annul the hadd punishment. See n. 23 below.

Some jurists permitted forgiveness by way of repentance in certain offences. See Al-Zarkashi, Man- thur, I, 300.

Ahmad b. Idris al-Qarafi, Al-Furuq aw Anwar al-Buruq fi Anwa’ al-Furuq, ed. Khalil Mansur, 4 vols (Beirut: Dar al-Kutub al-'ilmiyya, 1998), I, 256.

Sariqa-theft is a hadd, to be distinguished from a theft that does not meet the procedural require­ments of hadd, an offence categorized as, and punished by, tazir.

'Izz al-Din b. 'Abd al-Salam, Al-Qawaid al-Kubra al-Mawsum bi-Qawaid al-Ahkam fi Islah al-Anam, eds. Nazih Hammad and 'Uthman Damiriyya, 2 vols (Damascus: Dar al-Qalam, 2000), I, 255ff. The section dedicated to this theme is entitled ‘Fima Yuqaddam min Huquq al-Ibad 'ala Haqq al-Rabb Rifqan bihim' It is also instructive that in another section (I, 252ff.), where he speaks of huquq al- Rabb as having priority over huquq al-'ibdd, Ibn 'Abd al-Salam casts the priority as being motivated by ‘advancing the interests of the 'ibad in the Hereafter’. This common doctrinal attitude, needless to say, in effect reflects a theistic humanism no less interested in the welfare of human beings than secular humanism is, albeit providing a different rational articulation of the world as well as a dif­ferent understanding of what the concept of interest signifies.

Al-Zarkashi, Manthur, I, 299.

Muhammad b. Ibrahim al-Baquri, Tartib al-Furuq wa-Ikhtisaruha (Beirut: Dar Ibn Hazm, 2005), 397. Here al-Baquri reports al-Qarafi’s pondering over why this heinous crime — alongside that of heresy (another haqq Allah) - is trumped by nothing more than repentance.

Hallaq, The Impossible State, 92—5.

Ibn 'Abd al-Salam, Al-Qawaid al-Kubra, 255. See also Hallaq, The Impossible State, 94—5, for other jurists’ doctrines upholding the same legal norm.

Baber Johansen, ‘Sacred and Religious Element in Hanafite Law — Function and Limits of the Absolute Character of Government Authority’, in Islam et Politique au Maghreb, ed. E. Gelner and J.- C. Vatin (Paris: Centre National de la Recherche Scientifique, 1981), 298—300. Johansen does not cast the matter as I have, for he departs, as we will see, from the assumption that a victim of theft would want both his property restituted and the thief punished by amputation. This assumption is overloaded with the normativity of the state’s role as the ultimate prosecutor that possesses its own rights to punish and discipline. In the absence of the apparatus of state and its institutional presence in pre-modernity, the conditioned belief in such rights may have been either thin or virtually absent. For further information, see section IV in this chapter.

If not in the creation of rules and legal values, then at least in using these categories in rationalizing the law ex post factum.

'Abd al-Wahhab b. Ahmad b. 'Ali al-Misri al-Sha'rani, al-Mizan al-Kubra al-Sharaniyya al-Mudkhila li-Jami' Aqwal al-A’imma al-Mujtahidin wa-Muqallidihimfi al-Shari'ah al-Muhammadiyya, ed. 'Abd al- Warith Muhammad 'Ali, 2 vols (Beirut: Dar al-Kutub al-'ilmiyya, 1418 AH/1998 AD), 222. Q. 5:32; ‘He who kills a (human) life... has killed all humankind.’

Muhammad b. Ahmad b. Juzayy, al-Qawanin al-Fiqhiyya, ed. Muhammad Dannawi (Beirut: Dar al-Kutub al-'ilmiyya, 2006), 255—8.

Retaliation, blood-money or forgiveness.

Anver M. Emon, ‘Huquq Allah and Huquq al- 'Ibad: A Legal Heuristic for a Natural Rights Regime’, Islamic Law and Society 13, no. 3 (2006), 325. Further evidence in support of this claim is the general absence of discussion of these huquiq from usui l al-fiqh works, especially in the parts related to 'illa and talil. For an instance of the limited use of these huquq in debating issues of usul, see al-Amidi, Ihkam, II, 331—3. It is also plausible to argue that legal reasoning leads to the classification of legal issues in terms of these huquq but the categorization of huquq itself cannot, on its own, be utilized to conduct legal reasoning in the fullness of its process. Evidence in support of the mostly descriptive (as opposed to prescriptive) nature of huquq is represented in the manner in which the madhahib differed in classifying and understanding these huquq, for it is certainly the madhahibs’ general le­gal principles (which often varied between and among them greatly) that generated the different understandings and classifications of huquq, not the other way around. An insightful lead into the debate about the descriptive/prescriptive is Walter E. Young's review of Behnam Sadeghi's book, The Logic of Law Making in Islam (Cambridge: Cambridge University Press, 2013), in Journal of the American Oriental Society, 136, no. 1 (2016), 227—30.

33 Thinnest because modernity gives ‘administrative regulation' a thick ‘Weberian' definition that was utterly unknown to Muslim jurists and sultans. On the modern administrative state as a ‘blood­less constitutional revolution', see Gary Lawson, ‘Rise and Rise of the Administrative State', Har­vard Law Review 107 (April 1994), 1231—54.

34 On these themes, see Hallaq, The Impossible State, and Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003).

35 Johansen, ‘Sacred and Religious Element,' 299 (emphasis mine).

36 On these implications insofar as the citizen and citizenship are concerned, see Hallaq, The Impossible State, 89—110. The premier elaboration of the concept of negative liberty is of course Isaiah Berlin's essay ‘Two Concepts of Liberty', in Liberty: Isaiah Berlin, ed. Henry Hardy (Oxford: Oxford Uni­versity Press, 2008), 167—217. Berlin's unqualified fear of positive liberty was so evident that he left this concept sorely underdeveloped (pp. 178—81), though sufficiently provocative as to expose the entanglements of negative liberty with capitalism and political economy of the liberal state. See also Charles Taylor, ‘What's Wrong with Negative Freedom?', in The Idea of Liberty: Essays in Honor of Isaiah Berlin, ed. Alan Ryan (Oxford: Oxford University Press, 1979), 175—93.

37 This theme potentially constitutes a fertile research interest that remains entirely neglected, but one that deserves far more attention and investment than the nearly useless but nationalistic interests in such questions as, say, the ‘origins of Islamic law'.

38 Johansen, ‘Sacred and Religious Element', 299.

39 See Miriam Hoexter, ‘Huquq Allah and Huquq al-Ibad as Reflected in the Waqf Institution,' Jerusa­lem Studies in Arabic and Islam, 19 (1995), especially at 136—7.

40 Hallaq, Shari ‘a, 142—6, and especially 402.

41 See the concluding section in this chapter.

42 Abu al-Walid Muhammad b. Rushd, Bidayat al-Mujtahid wa-Nihayat al-Muqtasid, ed. ‘Abd al-Razzaq al-Mahdi (Beirut: Dar al-Kitab al-‘Arabi, 1424/2004), II, 700. ‘In principle,' because if the stolen object is retrievable, the restitution of the object as well as the hadd penalty become both required (ajmad‘ala akhdhihi minhu idha wujida bi-‘aynihi).

43 Ibid, 700—1. For a general but useful account, see Emon, ‘Huquq Allah, 367—72.

44 See the Introduction to Sha‘rani's Al-Mizan al-Kubra, especially I, 11.

45 Ibid., II, 228: ‘al-taghliz ‘ald al-sdriq bi-wujdb al-ghurm in kana musirran bi-khilafi al-mu‘sir,fa-khuffifa ‘anhu li-anna lahu ra'ihat ‘udhr li-ma ‘indahu min al-faqa wa-l-haja,

46 Johansen, ‘Sacred and Religious Element', 299 (emphasis mine).

47 Ibid., 301.

48 Ibid.

49 Hallaq, The Impossible State, 68.

50 Johansen, ‘Sacred and Religious Element', 301.

51 Emon, ‘Huqdq Allah, 381—2. See also section III in this chapter.

52 See n. 34.

53 See Hallaq, The Impossible State, ch. 4.

54 As, for instance, in the case of imprisonment for non-payment of pecuniary debts.

55 Al-Shatibi, Muwafaqat, 233.

Select bibliography and further reading

Amidi, ‘Ali b. Muhammad Sayf al-Din al-. Al-Ihkam fi Usul al-Ahkam. Ed. ‘Abd al-Razzaq ‘Afifi, 4 vols. Riyadh: Dar Sumay i, 2003.

Emon, Anver M. ‘Huqudq Alladh and Huqudq al- ibadd: A Legal Heuristic for a Natural Rights Regime', Islamic Law and Society, 13, no. 3 (2006).

Hallaq, Wael. Shan "a: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009. Hoexter, Miriam. ‘Huquq Allah and Huquq al- 'ibad as Reflected in the Waqf Institution’. Jerusalem Studies in Arabic and Islam, 19 (1995).

Ibn Abd al-Salam, 'Izz al-Din. Al-Qawa'id al-Kubra al-Mawsum bi-Qawa"id al-Ahkam fi Islah al-Anam. Eds. Nazih Hammad and 'Uthman Damiriyya, 2 vols. Damascus: Dar al-Qalam, 2000.

Ibn Juzayy, Muhammad b. Ahmad. Al-Qawanin al-Fiqhiyya. Ed. Muhammad Dannawi. Beirut: Dar al-Kutub al- 'Ilmiyya, 2006.

Ibn Rushd, Abu al-Walid Muhammad. Bidayat al-Mujtahid wa-Nihayat al-Muqtasid. Ed. Abd al-Razzaq al-Mahdi. Beirut: Dar al-Kitab al- Arabi, 1424 AH/2004 AD.

Johansen, Baber. ‘Sacred and Religious Element in Hanafi Law — Function and Limits of the Absolute Character of Government Authority’. In Islam et Politique au Maghreb. Ed. E. Gelner and J.-C. Vatin. Paris: Centre National de la Recherche Scientifique, 1981.

Qarafi, Ahmad b. Idris al-. Al-Furuq aw Anwar al-Buruq fi Anwa’ al-Furuq. Ed. Khalil Mansur, 4 vols. Beirut: Dar al-Kutub al- Ilmiyya, 1998.

Sha 'rani, Abd al-Wahhab b. Ahmad b. Ali al-Misri al-. Al-Mizan al-Kubra al-Shadaniyya al-Mudkhila li-Jami ' Aqwal al-A’imma al-Mujtahidin wa-Muqallidihim fl al-Shari "ah al-Muhammadiyya. Ed. Abd al- Warith Muhammad Ali, 2 vols. Beirut: Dar al-Kutub al- 'Ilmiyya, 1418 AH/1998 AD.

Shatibi, Abu Is-haq al-. Al-Muwafaqat fi Usul al-Ahkam. Ed. Muhammad Muhyi al-Din Abd al-Hamid, 4 vols. Cairo: Maktabat M. Ali Subayh, 1970.

Zarkashi, Abu Abdullah Badr al-Din al-. Al-Manthurfi al-Qawa"id. Ed. Muhammad Isma 'il, 2 vols. Beirut: Dar al-Kutub al- Ilmiyya, 1421 AH/2000 AD.