Islamic Law as Muslim Law

The early Hanafi approach to law opens the door to a complete re-conception of religious law and Islamic legal justice. Normally when we think of religious law, we assume that it is imbued with morality and metaphysical import: following the law will result in establishing transcendent justice and attaining paradise,

Al Al-Maturidi, Ta’wilat ahl al-sunna, 3:428.

42 Al-Maturidi believed that stoning was actually a pre-Islamic punishment, and that the Quran instituted an outer limit of lashing convicted adulterers; ibid., 2:44. and flouting it will result in moral decay and damnation. However, the early Hanafi approach treats law as a social force more than a moral one. Believers do not know why God commands one law or another — though they trust that there is some reason —, or even which laws God commands at all. They are not expected to follow laws to the letter; rather, they are supposed to determine which laws are right for the community within boundaries determined through expansive readings of foundational sources. Religious law, therefore, has more to do with religious identity within political boundaries than it does morality and salvation.

This leads to the intriguing question, what if the political boundaries of the Muslim community ceased to exist? Do Islamic laws need to be followed if there is no structure in place to enforce them? To take the question further, if Muslims do not live in a place with a social contract that permits certain actions and dis­allows others, are they still bound by Islamic law? For a concrete example, let’s look at the law of drunkenness. Most Muslim jurists, including Hanafis, agreed that public drunkenness was a crime that could be punished by lashing. In the Hanafi framework, lashing is only the outermost limit for punishing drunken­ness, and a local imam may choose to pardon a convicted drunkard instead with­out any metaphysical consequences.

Early Hanafis were adamant that Islamic law only functions within a clearly demarcated jurisdiction, and does not apply outside of that. We can see this at work in an exchange between Abu Hanifa and Muhammad al-Shaybani concern­ing riba, a commercial transaction in which either similar items are exchanged for one another or in which debt increases over time, often likened to a common interest-bearing loan. Riba is unambiguously forbidden in the Quran and hadιth, with the Quran going so far as to say, ‘if you do not [desist from engaging in riba], take notice of war from God and God’s Messenger’ (Q. 2:279). Early Hanafis agreed that riba should be prohibited, and thus engaging in riba would violate the social contract that Muslims agreed upon. Again, it is not prohibited because riba is an unjust practice, but because it is a practice that Muslims disallow. If Muslims decided at some point to, say, discourage riba without prohibiting it, then engaging in riba would not be a punishable offense.

Interestingly, Hanafis believed that the social contract that either proscribes or permits riba is only relevant within the confines of a Muslim political milieu in which Muslims agree to abide by Islamic law. This political milieu is known as

dar al-Islam. Since law needs a social contract to be binding, Islamic law makes no sense outside of the confines of dar al-Islam. So, in lands outside dar al- Islam, known as dar al-harb, Islamic law ceases to apply to both believers and non-believers. The following discussion between Abu Hanifa and his student Muhammad al-Shaybani captures the importance of jurisdiction with respect to riba:

[Muhammad al-Shaybani] asked: If a Muslim entered into a transaction with a resident of dar al-harb involving riba, wine, or corpses, do you think such a transaction would be re­jected as null and void?

[Abu Hanifa] replied: Yes, if it took place in dar al-Islam.

I asked: Why? Are you saying that if a Muslim enters dar al-harb, it would be permis­sible for him to sell corpses and take 2 dirhams in exchange for 1?

He replied:Yes, it would be quite all right to do so in their land, but not in dar al-Islam, where Muslim rulings are binding on them and where it is only lawful to do that which is lawful amongst Muslims. If the Muslim were in dar al-harb under safe passage, it would be lawful for him to acquire property from them in accordance [with their law], since Muslim rulings would not be binding on them there.^{[60] [61]}

Muslim rulings, it would seem, only apply in a society in which there is a social contract that upholds Muslim rulings. Restrictions and permissions cease to exist wherever the social contract does not apply. It appears that residency deter­mines whether or not Muslims have to abide by Islamic law. If individuals reside within dar al-Islam, then Islamic law applies, and if they live outside of dar al- Islam, then foreign laws apply. That is because Islamic law is not a metaphysical or salvific law in the Hanafi conception; rather, it is a mutually agreed upon and highly negotiable social contract.

In a similar vein, al-Shaybani asked Abu Hanifa about a rather specific sce­nario in which a Muslim army battalion is routed by a disbelieving army and is forced to escape to an area within dar al-harb44 under the protection (aman) of some resident disbelievers. Al-Shaybani’s question was whether the routed Mus­lims could regroup within dar al-harb, join up with some of its sympathetic res­idents, and launch an attack on their enemy from inside dar al-harb. Abu Hanifa answered in the negative; since the routed Muslims would be residing in the land of their enemy, they would be bound by the enemy’s law, which presumably does not allow its residents, Muslim or not, to rise up against them.^[62] In essence, Abu Hanifa argued that Muslims are bound by the laws of the land in which they re­side, whatever they might be and for whatever reason Muslims find themselves in those lands in the first place.

To drive that point home, we have the following exchange regarding the ap­plication of hudud penalties for crimes committed outside of dar al-Islam:

[Muhammad al-Shaybani asked:] If [in dar al-harb] either a Muslim had become indebted to [a disbeliever] or [a disbeliever] had become indebted to [a Muslim], or [a Muslim] had usurped [a disbeliever’s] property or [a disbeliever] had usurped [a Muslim's] property do you think that we should concern ourselves with any such matters?

[Abu Hanifa] replied: I hold that we should not concern ourselves with such matters and that we should not pass judgment on them.

I asked: Would the same be true of any acts of murder or wounds committed in dar al- harb?

He replied: Yes. All such things would be regarded as null and void.

I asked: Why?

He replied: Because they were committed [in a territory] where Muslim rulings are not applicable to them.^{[63] [64]}

Islamic law, it would seem, has borders. The issue of jurisdiction comes up often in early Hanafi legal texts, and it concerns where and when Muslims are expect­ed to abide by Islamic law. Here we see that actions that are normally considered crimes — riba, murder, personal injury — are actually only crimes when they are committed in a land in which there is a social contract forbidding those ac­tions?⁷ In absence of that contract, there is no crime to prosecute. Nor is there any concept of rendition; a crime committed outside of dar al-Islam will never be prosecuted within dar al-Islam.

Citizens of a state agree to abide by the rulings of the state; that is what makes for good citizenship and for a flourishing society. The early Hanafi em­phasis on good citizenship suggests that they believed that social rules are enact­ed not because they are divinely-inspired, but because they reflect normative so­cial practice and create social order. This pragmatic focus of the law shifts our attention away from transcendent morality and toward a desired legal ethic.

This attitude toward jurisdiction and citizenship pervades early Hanafi scholarship. Take the following exchange wherein al-Shaybani asks Abu Hanifa about a non-resident alien (musta’min) who visits dar al-Islam under an order of protection (aman):

I asked: If [a musta’min] commits fornication or theft in dar al-Islam, do you think that we should apply the hudud penalties to him?

[Abu Hanifa] replied: No.

I asked: Why?

He replied: Because musta’mins have made neither a peace treaty [with us] nor had they become dhimmis (resident non-Muslims). Thus, Muslim rulings would not apply to them.^{[65] [66]}

Musta’mins are only passing through dar al-Islam; they have no intention of res­idence, they are not citizens of any sort, and they normally abide by some other social contract in the land from which they came. Thus, the rules of the Muslim community do not apply to them. Surely, they might be convicted of a crime com­mitted in dar al-Islam and punished, but there is no set penalty prescribed for them. The law applied to them is undoubtedly secular, and has nothing to do with what we traditionally call ‘Islamic law’.

It is important to note here that the distinction between those to whom the law applies and those who are beyond the law has to do with residency and cit­izenship, not necessarily with religion. In the above passage and elsewhere, early Hanafis made clear that dhimmis, who are not Muslim, are subject to Mus­lim laws, not by dint of their religious affiliation, but because they accepted a social contract as a condition of residency.

This conception of law and jurisdiction flows directly from the theological precepts of the early Hanafis?⁹ To review, Hanafis believed that God is utterly beyond human comprehension, and that humans can never really know the con­tent of God’s Speech or how to act according to God’s will. That is not a problem, because God’s primary command to humans is to believe in God’s unity and in Muhammad’s prophethood. Once someone believes, they are free to interpret the texts and act without worrying that their missteps will negatively impact their belief. So long as believers repent their sins, they will be entered into paradise. If they do not repent, they might have a stopover in hell before eventually being admitted into heaven. But they would just as easily, and in fact more likely, be admitted directly into paradise. Given this theological framework, Islamic law cannot be about creating moral agents whose adherence to the law determines their success in the life hereafter. Rather, it can only be a fallible attempt by Mus­lims to maintain social order while demonstrating fidelity to God.