The Hanafi View of Siyasa and Sharia – al-Hasiri [Mürteza

Bedir]
Adapted, many a times, word for word. {} – my input

Politics (siyasa) has multiple senses; (1) aggravated law1 (shar’ mughallazh), and (2) rulings
issued by a sovereign and his official representatives for the practice of governance or
statecraft. The usage of ibn Nujaym seems to combine both meanings. [From this, it is
apparent that the judge has no right to issue a ruling based on siyasa]. From the second use
stems a third meaning; politics more generally or political theory.
Apart from Abu Yusuf’s treatise, al-Kharaj, there are no separate, independent classical
works on siyasa in the first two senses. Al-Tarsusi’s Tuhfat-ut-Turk, was amongst the first as
well as works from ibn Taymiyyah. Others may have used it to mean heavy punishment to be
inflicted by the ruler. Ibn Nujaym, who came towards the latter end, defined siyasa as “an act
of a hakim based on the benefit he sees, even though there’s no particular proof about that
action”2 there was no discussion on political theory as such. Ibn Abideen seems to be the only
pre-modern jurist to have a small discussion on imaamah3 i.e. political theory.
Although there wasn’t a documented theory, they naturally had ideas on certain aspects (like
justice) to the extent that they even criticised rulers. However, even though majorly a fiqhi
concern, theological works briefly discussed some aspects of imaamah due to other groups’
theological stance (shia, khawarij). Maturidis largely agreed with the sunni theory of
khilaafah including the condition of being from the Quraysh. They saw the Imam to be a
necessity (based on shar or aql?) and even abandoned certain conditions (justice, qurashi) to
uphold the imaamah. Maturidi, himself, tried to capture the rationale behind this condition.
He put it down to the inherent evil of politics to which only certain people would be able to
overcome it.4
{Other factors to note: political dominance in those times were in the hands of Quraish, controlled
Makkah and oversaw hajj proceedings. Other tribes looked up to them as well. They had great
military prowess. Refer to Abu Bakr’s statement at khaifu Bani Saaidah}

Al-Hasiri (6th century) has the scarce mention amongst hanafi scholars of siyasa as political
theory. In his introduction to his al-Hawi fil Fatawi, he mentions the roles of jurists, judges,
and rulers, and he places the mufti at the centre of the social/political order. Hereunder is a
translation of his introduction.
Abu ‘l-Mahamid Mahmud b. Ibrahim b. Anush al-Hasiri, el-Hawi fi’l-fatawa, Istanbul, Suleymaniye
Library, Şehit Ali Paşa Collection, no: 1018:
Introduction:
The Master, the judge, the great imam, the lord of the judges, the sincere friend of the imams Abu ‘l-
Mahamid Mahmud b. Ibrahim b. Anush al-Hasiri said:

After presenting praise and eulogy to God and after praying for and saluting His Messenger:

1
Interchangeable with ta’zeer, according to ibn Nujaym and ibn Abideen, or may be a heavy form of it which
only the Imam can execute.
2
5/18 al-Bahr
3
2/276
4
13/305 Ta’wilat ed. Murteza
There is nothing more precious than in indulging in the science of fiqh, due to the existence of the
benefits of two worlds in it. The survival of a human being in this world depends upon food, clothing
shelter, and accommodation. The survival of the human genus is through procreation (istilad).
Normally this can be achieved only through the words and deeds (aqwal and af‘al), which are called
al-Mu‘amalat (transactions). The desired promised survival in the abode of the hereafter can also be
obtained only through words and deeds, which are called ‘Ibadat (worship).

However, it is hardly possible for a single person to grasp and to realize all means (asbab) of these
two situations. On the contrary, the whole of humanity undertakes attainment of all means. This is
because needs get intertwined and complicated, and taking and giving away, pulling back and forth
and loosenings abound and increase, from which killings, beatings, and confrontations are derived.
This is disintegration and degeneration in religion (fasad fi’ddin), because it leads to the interruption
of the means of survival (asbab al-baqa’) which is the ultimate wisdom coming from Allah. It is,
therefore, necessary for mankind to have a preventer who will stop degeneration and a carrier who
will carry them to uprightness and rectitude (as-salah). As a result, the Omniscient and Omni-
knower, Who is Omnipotent, installed and placed in them the faculty of rationality (‘aql), which is a
preventer, a collector and a carrier. For human beings are blind and their rational faculty is their
guiding stick. However, though many blind people use their stick with their right or left hand, they do
not reach the place they want to go to and go astray, not because they do not use a stick but
because they are not careful enough due to the strength of their desires; so the rational faculty leads
only a few people to uprightness while the majority go astray.

Thus the One who has ultimate grace –the almighty- sent messengers and prophets (arrusul wa’l-
anbiya’) who are like the one holding the hand of the blind. They brought straight religion and the
upright way of truth with promises and threats (al-wa‘d wa’l-wa‘id). This is the great religious
politics (as-siyasah al-‘uzma ad-diniyyah); the distinguished people (al-khawass) accepted it because
they recognized the truth in the promised thing as certainly coming. On the other hand, the common
people, due to their concern for the immediate world and seeing the hereafter as too remote to be
real, ignored and disregarded it. Consequently, the Subduer (al-Qahhar) brought forth the kings with
swords, whips, and prisons. This is the great perceptible politics (as-siyasah al-‘uzma al-hissiyyah),
thereby the common people were frightened, restrained, and subdued; so they sought the more
lenient politics, hence preferred what was brought by the master of shari’ah and dreaded what was
brought by kings and sultans. Then the Merciful instituted judges who look with one eye to religious
politics and make it clear and with another eye to sensory politics and explain it. Thus the affairs
became upright, righteousness became visible and degeneration/disintegration faded away.

The greatest principle (al-asl al-a‘zam) in rectifying these affairs is the Master of religion, who
appointed agents to represent himself. These are the muftis who made themselves ready to know
what the Master of religion spoke and did; they discharged themselves from everything in order to
look after what they were commanded to do and to avoid what they were prohibited from doing.

Then the Master of religion enjoined upon them to obey and follow the kings for the sake of politics
(sahib ad-din amarahum bi’t-tiba‘ al-muluk siyasatan). He ordered the kings to follow their fatwa for
the sake of religion because the kings are prone to indulge in worldly desires and follow their
temptations. He instructed the qadi (judge) not to close his eye to a fatwa in order to reach the
desired truth. Given this state of affairs, the mufti occupies the highest status by grasping truth with
a firm hand.5

It seems that the Hanafi Jurists saw the fuqahaa as the true successors of the Prophet which
the early Caliphs once enjoyed.
5
Translated by Murteza Bedir
Against the prevailing view that Shariah is all embracing, it is the author’s opinion that in the
traditional fiqhi sense, it is largely limited to personal and civil law. When we look at the
general chapters of fiqh, it is broken down into two broad categories; Ibaadaat, Muamalaat.
The latter makes up ¾ of fiqh and further divided into family law, daily transactions, criminal
law, [law of procedure? and law of nations]. Although criminal law references discretionary
power of the ruler, there’s no independent section on constitutional and administrative law,
the are directly related to siyasa. Although some of the public law issues continued to be
developed by jurists, the rulers were entrusted to govern a major part of them.
{Ottomans established Qanun. Check further on differences in application by the earlier Caliphs.
Also, way to accession of each Caliph was done differently}
Majority of the fuqaha agree to siyasa being a legitimate form of action outside of fiqhi texts.
Qarafi6, ibn Taymiyyah7 as well as ibn Qayyim8 argued in favour of this. They identified two
aspects, a positive and negative. The positive falls within fiqhi reasoning whilst the negative
falls outside, their validity based on not being in conflict with shariah resulting in Siyasah
being part of Shariah. This is opposed to some Shafi scholars (Nuruddeen Zangi incident)
who didn’t deem it as a legitimate source.
This is different to the hanafis who saw the law to be, mostly, a private affair. They
acknowledge siyasa (political philosophy) but saw it as outside of the jurisdiction. Al-Hasiri’s
approach saw the need for it and based it on survival and realism. There had to be a balancing
act coordinated from the Mufti and Sultan.

{Possible examples of siyaasah:}

1. Umar bin al-Khattaab: prevented marriage to ahlul kitaab, stopped tamattu hajj,
changed distribution of conquered land,
2. Uthmaan: built masjid differently, prevented the reading of non-uthmanic masaahif,
added the third azaan, (may have) brought eid khutbah before salaah,
{Examples from Ahaadeeth}
1. ١٣٧٨ ‫راجع الترمذي‬
2. ٢٤١٥ ‫راجع صحيح البخاري‬

7
As-Siyasah as-Shariyyah. Check Politics, Law and community of Ovamir Anjum
8
I’lam al-Muwaqqi’