al-Qarafi, Shihab al-Din (1228–85)

A major 13th-century Maliki scholar, Shihab al-Din al-Qarafi (Abu al-‘Abbas Ahmad b. Idris) wrote on the relationship between law and political domination in early Mamluk Egypt. Though an Ash‘ari in theology, he devoted little scholarly attention to rationalism and focused his major writings on law and legal theory: al-Dhakhira (The treasure), a massive compendium of Maliki fiqh (Islamic law); Sharh Tanqih al-Fusul (Examining Razi’s chapters on legal theory) and Nafa’is al-Usul fi Sharh al-Mahsul (The precious principles in Razi’s compendium on legal theory), both commentaries on Fakhr al-Din al-Razi’s work on legal theory, al-Mahsul; and Kitab al-Furuq (The book of legal case studies), which focused on legal precepts. Beyond these, Qarafi’s most significant (and unique) contribution to Islamic political thought was his Kitab al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam wa-Tasarrufat al-Qadi wa-l-Imam (Distinguishing legal opinions from binding decrees and discretionary actions of judges and caliphs).

The premodern Islamic state had no law of its own and thus depended on shari‘a to legitimate its use of power. Shari‘a, however, was not a monolith but a composite of multiple, equally orthodox interpretations. This raised the question of the relationship between Islamic law, its authoritative interpreters, and the Muslim state, particularly where the latter favored one school of law over the others. For under such circumstances, the state’s monopoly on executive authority threatened to denude the remaining schools of practical import. Qarafi’s solution to this was essentially to cast each school of law as a corporate entity whose views were “constitutionally” protected as constituents of the larger composite of orthodox Islamic law. On this understanding, the state could not violate the views of any school without violating shari‘a as a whole.

Qarafi recognized the state’s prerogative to favor whatever school it saw fit. But it could not refuse to implement the rulings of those it appointed (e.g., a judge or alms collector from another school); nor could it impose the view of its favored school outside cases adjudicated by its judges in court; nor could it, generally speaking, standardize the religious law in areas where there were standing disagreements among the schools. None of this was to negate the rather broadly defined discretionary authority of the state; in fact, Qarafi not only recognizes but actually expands this authority. This, however, was for the purpose of denying the state’s every proclamation the full force of law. On the one hand, he compares some state pronouncements to the nonbinding legal opinions (fatwas) issued by muftis, while he contrasts others with the binding decrees (ḥukm) of judges and other state officials. In this way, Qarafi asserts that one can challenge and ignore any number of state pronouncements, including declarations of jihad, on the grounds that such pronouncements do not constitute a ḥukm but are only nonbinding opinions or provisionally binding but legally challengeable dicta (taṣarruf).

This counterintuitive move of granting the state the right to issue fatwas raised problems of its own. If state proclamations, having adopted a school of law, came to enjoy a presumption of authority and protected status, routine state operations could extend legal authority into virtually every aspect of life, producing in effect a “tyranny of law.” In other words, while open to challenge, social, economic, cultural, political, and even practical views could be subjected to legal contemplation and presumed to admit of “correct” answers at shari‘a. In the face of this, Qarafi set out to define the limits of law and the boundary separating law from nonlaw, so as to restrict the legal authority and jurisdiction of the state and the schools of law to that which could be genetically traced to the actual sources of the religious law. Based on this clarification, there could be no concrete, unassailably correct shari‘a rule dictating, for example, economic policy, medical licensing, or speed limits.

A meaningful assessment of Qarafi’s relevance to modern Islamic political thought might begin by considering the following. First, he seeks to protect the rights of individuals not as individuals but as members or followers of “corporate” schools of law. Second, he assumes legal pluralism (i.e., recognizing the application of different legal regimes to different segments of society) to be a normative arrangement that does not threaten the sovereignty of states. Third, his theory defines the ideal political order primarily in negative terms, in other words, what authority states (or jurists) are not authorized to claim. Finally, the “secular,” or worldly, space opened up by his perspective on shari‘a is clearly meant to serve and complement rather than challenge or impugn religion.

See also jurisprudence; al-Razi, Fakhr al-Din (1149–1209); shari‘a

Further Reading

Sherman A. Jackson, “From Prophetic Actions to Constitutional Theory: A Novel Chapter in Medieval Muslim Jurisprudence,” International Journal of Middle East Studies 25 (1993); Idem, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī, 1996; Idem, “Legal Pluralism and the Nation-State: Between Medieval Romanticism and Modern Pragmatism,” Fordham International Law Journal 24 (2007); Idem, “Sharī‘ah, Democracy and the Modern Nation-State: Some Reflections on Islam, Popular Rule and Pluralism,” Fordham International Law Journal 27, no. 1 (2004).

SHERMAN A. JACKSON