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The sixth Mughal Emperor Aurangzeb reading Quran, in early 18th century. He commissioned the Fatawa-e-Alamgiri that expanded Islamic law within Hanafi fiqh boundaries. Composed by 500 Medina, Iraqi and Mughal Muslim scholars, the fatwa created social stratification of Muslims, where one's status determined the person's legal rights and treatment under Islamic law.[1]

Fatawa-e-Alamgiri (also known as Fatawa-i-Hindiya and Fatawa-i Hindiyya) is a compilation of law created at instance of the Mughal Emperor Aurangzeb (who was also known as Alamgir). This compilation is based on Sunni Hanafi Islam's Sharia law, and was the work of many scholars, principally from the Hanafi school.[2]

In order to compile Fatawa-e-Alamgiri, Aurangzeb gathered 500 experts in Islamic jurisprudence (Faqīh), 300 from the South Asia, 100 from Iraq and 100 from the Hejaz (Saudi Arabia). Their work over years, resulted in an Islamic code of law for South Asia, in late Mughal Era. It consists of legal code on personal, family, slaves, war, property, inter-religious relations, transaction, taxation, economic and other law for a range of possible situations and their juristic rulings by the Hanafi jurists of the time.

The Fatawa-e-Alamgiri is notable for several reasons:

  • It spanned 30 volumes
  • It served as the basis of law and doctrine imposed by Aurangzeb throughout his empire by early 18th century
  • It created a legal system that treated people differently based on their social class, economic status and religion[1][3]

Discussion[edit]

The Fatawa-i Alamgiri (also spelled Fatawa al-Alamgiriyya) was compiled in late 17th century, by 500 Muslim scholars from Medina, Baghdad and South Asia, in Delhi (India) and Lahore (Pakistan), led by Sheikh Nizam Burhanpuri.[4] It was a creative application of Islamic law within the Hanafi fiqh.[1] It restricted the powers of Muslim judiciary and the Islamic jurists ability to issue discretionary fatwas.[5][4]

The document stiffened the social stratification among Muslims.[6] For the same crime, it declared that Muslim nobles such as Sayyids were exempt from prison, humiliation as well as physical punishments, the governors and landholders could be humiliated but not arrested nor physically punished, the middle class could be humiliated and put into prison but not physically punished, while the lowest class commoners could be arrested, humiliated and physically punished.[1] The emperor was granted powers to issue farmans (legal doctrine) that overruled fatwas of Islamic jurists.[4]

In substance similar to other Hanafi texts,[7] the laws in Fatawa-i Alamgiri describe, among other things, the following.

Criminal and personal law[edit]

  • personal law for South Asian Muslims in 18th century, their inheritance rights,[8]
  • personal law on gifts,[9]
  • apostates neither have nor leave inheritance rights after they are executed,[10]
  • the guardian of a Muslim girl may arrange and force her to marry against her will,[11]
  • a Muslim boy of understanding (who has reached puberty), required the consent of his guardian to marry.[12]
  • laws establishing the paternity of a child arising from valid or invalid Muslim marriages[13]
  • a woman cannot claim that a particular Muslim man is the father of her child, such claims would be invalid unless the man acknowledges it.[14] However, if the man committed zina (illicit sex with a woman who is neither his wife nor his slave), his acknowledgment would be invalid.[15]
  • a Muslim man with four wives must treat all of them justly, equally and each must come to his bed when he so demands.[16]
  • distinction in property rights between Muslims and non-Muslims,[17]
  • hudud punishments for the religious crime of zina (pre-marital, extra-martial sex) by free Muslims and non-Muslim slaves. It declared the punishment of flogging or stoning to death (Rajm), depending on the status of the accused.[18]

Pillage and slavery[edit]

  • two or more Muslims, or persons subject to Muslims, who enter a non-Muslim controlled territory for the purpose of pillage, and thus seize some property of the inhabitants there, and bring it back into the Muslim territory, that property would be legally theirs.[19]
  • the right of Muslims to purchase and own slaves,[20]
  • a Muslim man's right to have sex with a captive slave girl he owns or a slave girl owned by another Muslim (with master's consent) without marrying her,[21]
  • a Muslim master's right to acknowledge or decline recognition children born to slave girls - a recognition that affected whether the slave's children would have any inheritance, the inability of infidels (non-Muslims) to inherit,[22]
  • no inheritance rights for slaves,[23]
  • the testimony of all slaves was inadmissible in a court of law[24]
  • slaves require permission of the master before they can marry,[25]
  • a unmarried Muslim may marry a slave girl he owns but a Muslim married to a Muslim woman may not marry a slave girl,[26]
  • conditions under which the slaves may be emancipated partially or fully[27]

The Fatawa-e-Alamgiri also formalized the legal principle of Muhtasib, or office of censor[28] that was already in use by previous rulers of the Mughal Empire.[1] Any publication or information could be declared as heresy, and its transmission made a crime.[1] Officials (kotwal) were created to implement the Sharia doctrine of hisbah.[1] The offices and administrative structure created by Fatawa-e-Alamgiri aimed at Islamisation of South Asia.[1]

Impact[edit]

Fatawa-i Alamgiri became the reference legal text to enforce Sharia in colonial south Asia in the 18th century through early 20th century.[29] The document created a school of orthodox Islamic law specialists in India, particularly after the death of Aurangzeb. As the power shifted from Muslim rulers in India to colonial Britain, the colonial authorities decided to retain local institutions and laws, to operate under traditional pre-colonial laws instead of introducing secular European common law system.[29] Fatawa-i Alamgiri as the documented Islamic law book, became the foundation of legal system of India. Further, the English-speaking judges relied on Muslim law specialist elites to establish the law of the land, because the original Fatawa-i Alamgiri (Al-Hindiya) was written in Arabic. This created a social class of Islamic gentry that jealously guarded their expertise, legal authority and autonomy. It also led to inconsistent interpretation-driven, variegated judgments in similar legal cases, an issue that troubled British colonial officials.[29][30]

The colonial assumption was that the presumed local traditional sharia-based law, as interpreted from Fatawa-i Alamgiri, could be implemented through British-style law institution with integrity.[29][31] However, this assumption unravelled in the 2nd half of 19th century, because of inconsistencies and internal contradictions within Fatawa-i Alamgiri, as well as because the Aurangzeb-sponsored document was based on Hanafi Sunni sharia. Shia Muslims were in conflict with Sunni Muslims of South Asia, as were other minority sects of Islam, and they questioned the applicability of Fatawa-i Alamgiri.[29] Further, Hindus did not accept the Hanafi sharia-based code of law in Fatawa-i Alamgiri. Thirdly, the British belief in "legal precedent" was at conflict with disregard for "legal precedent" in Anglo-Muhammadan legal system that emerged, leading colonial officials to distrust the Maulavis (Muslim religious scholars). The British colonial officials responded by creating a bureaucracy that created separate laws for Muslim sects, and non-Muslims such as Hindus in South Asia.[29] This bureaucracy relied on Fatawa-i Alamgiri to formulate and enact a series of separate religious laws for Muslims and common laws for non-Muslims (Hindus, Buddhists, Jains, Sikhs), most of which were adopted in independent India after 1947.[31]

The British tried to sponsor translations of Fatawa-i Alamgiri. In late 18th century, at the insistence of the British, the al-Hindiya was translated from Arabic to Persian. Charles Hamilton[32] and William Jones translated parts of the document along with other sharia-related documents in English. These translations triggered a decline in the power and role of the Qadis in colonial India.[33] Neil Baillie published another translation, relying on Fatawa-i Alamgiri among other documents, in 1865, as A Digest of Mohummudan Law.[29][34] In 1873, Sircar published another English compilation of Muhammadan Law that included English translation of numerous sections of Fatawa-i Alamgiri.[35] These texts became the references that shaped law and jurisprudence in colonial India in late 19th and the first half of 20th century, many of which continued in post-colonial India, Pakistan and Bangladesh.[29][31]

Contemporary comments[edit]

Burton Stein states that Fatawa-i-Alamgiri represented a re-establishment of Muslim ulama prominence in political and administrative structure that was lost by Muslim elites and people during Mughal Emperor Akbar's time. It reformulated legal principles to defend Islam and Muslim society by creating a new, expanded code of Islamic law.[3]

Scholars[36][37][38] state that the British colonial efforts to translate and implement Sharia from documents such as Fatawa-e Alamgiri, had a lasting legal legacy during and in post-colonial South Asia (Pakistan, India and Bangladesh).

Mona Siddiqui notes that while the text is called a fatawa, it is actually not a fatwa nor a collection of fatwas from Aurangzeb's time.[39] It is a mabsūts style, furu al-fiqh genre Islamic text, one that compiles many statements and refers back to earlier Hanafi sharia texts as justification. The text considers contract not as a written document between two parties, but an oral agreement, in some cases such as marriage one in the presence of witnesses.[39]

See also[edit]

References[edit]

  1. ^ a b c d e f g h Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, pp. 194-197
  2. ^ The Administration of Justice in Medieval India, MB Ahmad, The Aligarh University (1941)
  3. ^ a b Burton Stein (2010), A History of India, John Wiley & Sons, ISBN 978-1405195096, pp. 177-178
  4. ^ a b c M. Reza Pirbhai (2009), Reconsidering Islam in a South Asian Context, Brill Academic, ISBN 978-9004177581, pp. 131-154
  5. ^ Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, pp. 192-199
  6. ^ Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, p. 195, Quote - "At the same time the Fatawa stiffened the social hierarchy of a highly stratified system at the head of which stood the emperor."
  7. ^ Alan Guenther (2006), Hanafi Fiqh in Mughal India: The Fatawa-i Alamgiri, in Richard Eaton (Editor), India's Islamic Traditions: 711-1750, Oxford University Press, ISBN 978-0195683349, pp. 209-230
  8. ^ A digest of the Moohummudan law p. 344 with footnote 1, Neil Baillie, Smith Elder, London
  9. ^ A digest of the Moohummudan law pp. 515-546 with footnote 1 etc, Neil Baillie, Smith Elder, London
  10. ^ Fatawa i-Alamgiri, Vol 6, pp. 632-637 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  11. ^ Fatawa i-Alamgiri, Vol 1, pp. 402-403 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  12. ^ A digest of the Moohummudan law p. 5 with footnote 1, Neil Baillie, Smith Elder, London
  13. ^ A digest of the Moohummudan law pp. 392-400 with footnote 2 etc, Neil Baillie, Smith Elder, London
  14. ^ A digest of the Moohummudan law p. 407 with footnote 1, Neil Baillie, Smith Elder, London
  15. ^ A digest of the Moohummudan law p. 414 with footnote 1, Neil Baillie, Smith Elder, London
  16. ^ Fatawa i-Alamgiri, Vol 1, p. 381 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  17. ^ Fatawa i-Alamgiri, Vol 6, p. 631 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980); The Muhammadan Law p. 282 annotations
  18. ^ A digest of the Moohummudan law pp. 1-3 with footnotes, Neil Baillie, Smith Elder, London
  19. ^ A digest of the Moohummudan law pp. 364 with footnote 3, Neil Baillie, Smith Elder, London
  20. ^ Fatawa i-Alamgiri, Vol 5, p. 273 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  21. ^ Fatawa i-Alamgiri, Vol 1, pp. 395-397; Fatawa-i Alamgiri, Vol 1, pp. 86-88, Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  22. ^ Fatawa i-Alamgiri, Vol 6, p. 630 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980); The Muhammadan Law p. 289 annotations
  23. ^ Fatawa i-Alamgiri, Vol 6, p. 631 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980); The Muhammadan Law p. 275 annotations
  24. ^ A digest of the Moohummudan law pp. 371 with footnote 1, Neil Baillie, Smith Elder, London
  25. ^ Fatawa i-Alamgiri, Vol 1, page 377 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980); The Muhammadan Law p. 298 annotations
  26. ^ Fatawa i-Alamgiri, Vol 1, pp. 394-398 - Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)
  27. ^ A digest of the Moohummudan law pp. 386 with footnote 1, Neil Baillie, Smith Elder, London
  28. ^ Regulation of Morals Mughal Administration, J Sircar
  29. ^ a b c d e f g h David Arnold and Peter Robb, Institutions and Ideologies: A SOAS South Asia Reader, Psychology Press, pp. 171-176
  30. ^ K Ewing (1988), Sharia and ambiguity in South Asian Islam, University of California Press, ISBN 978-0520055759
  31. ^ a b c J. Duncan Derrett (1999), Religion, Law and State in India, Oxford University Press, ISBN 978-0195647938
  32. ^ Charles Hamilton, Guide: A Commentary on the Mussulman Laws at Google Books, Allen & Co, London
  33. ^ U Yaduvansh (1969), The decline of the role of the qadis in India: 1793-1876, Studies in Islam, Vol 6, pp. 155-171
  34. ^ A Digest of Moohummudan Law at Google Books, Smith Elder London, Harvard University Archives
  35. ^ The Muhammadan Law at Google Books, (Translator: SC Sircar, Tagore Professor of Law, Calcutta, 1873)
  36. ^ Scott Kugle (2001), Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia, Modern Asian Studies, Volume 35, Issue 02, pp 257-313
  37. ^ Mona Siddiqui (1996), Law and the Desire for Social Control: An Insight into the Hanafi Concept of Kafa'a with Reference to the Fatawa 'Alamgiri, In Mai Yamani, ed. Feminism in Islam: Legal and Literary Perspectives, ISBN 978-0814796818, New York University Press
  38. ^ Daniel Collins (1987), Islamization of Pakistani Law: A Historical Perspective, Stanford Journal Int'l Law, Vol. 24, pp. 511-532
  39. ^ a b M Siddiqui (2012), The Good Muslim: Reflections on Classical Islamic Law and Theology, Cambridge University Press, ISBN 978-0521518642, pp 12-16

Further reading[edit]

  • The Muhammadan Law at Google Books, English translation of numerous sections of Fatawa i Alamgiri (Translator: SC Sircar, Tagore Professor of Law, Calcutta, 1873)
  • Sheikh Nizam, al-Fatawa al-Hindiyya, 6 vols, Beirut: Dar Ihya' al-Turath al-'Arabi, 3rd Edition, (1980)

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