Book Reviews

Book Review: Muslim Endowments and Society in British India by Gregory C. Kozlowski, Cambridge University Press, 1985, reprint 2008

Reviewed by Muhammad Zubair Abbasi, DPhil Law Candidate, Oxford University

There are three basic reasons for writing a review of this book published a quarter a century ago. First, it remains the most authoritative work on the Muslim endowment (wakf) in India, which is an important institution under Islamic law. Second, it sheds light on the pre-partitioned Muslim society and its leadership. Third, it offers remarkable methodological specimen for a graduate research.

The main source of this work comprises of forty wakf deeds along with the judgments of Indian courts and the Privy Council. However, the writer draws upon rich resources from archives in India and the UK, which include official records, vernacular press, personal memoirs and scholarly texts and commentaries. Interesting comparisons are also made, where appropriate, with the English legal principles, institutions and historical developments. This work is a revised version of Kozlowski’s PhD thesis completed at the University of Minnesota in 1980. The fact that the book is published five years later in 1985 shows that he spent nearly a decade on this small 211 page monograph.

From the perspective of research methodology, this work highlights the importance of reported cases as a rich source for the history of India and Pakistan. A part from recording legal developments, they are a valuable source for documenting the socio-political and economic history of various institutions, families and localities in the subcontinent.

The writer’s choice of wakf for this study is appreciable, as the wakf is the only permanent institution under Islamic law. It was widely used for providing public services as well as the accumulation of family wealth. Mosques, schools, shrines, imambargahs, serais, dargahs, hospitals, public parks and other public utilities were established as wakf in Muslim societies. In a private wakf, the original beneficiaries are usually the family members of the founder with the poor or public services as the ultimate beneficiaries. The wakf was wide spread in Muslim world because of two reasons. First, it could be used to circumvent the strict Islamic law of inheritance, which restricts the discretion of an individual to dispose of his/her property by will. Second, since the wakf property was regarded as sacred, the predatory rulers could not confiscate it without invoking public outrage. Unlike other parts of the Muslim world, the private wakf was not widely used in India until the advent of the British. English courts strictly applied Islamic law of inheritance, which previously was overshadowed by customary practices. This change in legal regime adversely affected the large landowning Muslim elites who increasingly used the wakf devise in order to protect their property from segmentation. The Privy Council, however, declared the family wakf as illegal in 1894.

The Privy Council’s decision, though purported to be based on Islamic law, in fact, reflected the English legal spirit, which could not accept an institution that was to be operated perpetually in accordance with the wishes of the founder only. The “dead hand” of the founder not only kept on operating the wakf but it also withheld the endowed property from market circulation. The family wakf was also used to reserve large properties for the aggrandizement of family without liability to creditors, as the wakf property could not be alienated by the beneficiaries. For the lawyers and judges trained in the English legal tradition, the wakf was an inflexible, pre-modern institution, which did not fit into modern times.

However, the legality of the family wakf proved to be a crucial political issue, which united the interests of landowning elites, the orthodox ulama of different schools, moderate and liberal Muslim intelligentsia and various professionals. Socially prominent and wealthy Muslim families were considered as intermediaries between British rulers and Indian subjects by the Muslim intelligentsia. Interestingly, the London trained Muslim lawyers aligned themselves with the landowning aristocracy. Muhammad Ali Jinnah, who had newly entered into Indian politics, took the lead by submitting the draft bill for correcting the error caused by the judgment of the Privy Council. The press also played an important role in building pressure on the government and finally the Mussalman Wakf Validating Act was passed in 1913.

Kozlowsky’s narration of the story of wakf in India raises important questions about the theory and practice of Islamic law in the subcontinent before and after the advent of colonialism. What was the relationship between the state, Islamic law and customary practices in pre-colonial India? In other words, whether the Fiqh texts provided the law of the land exclusively or they operated along with other legal mechanisms such as imperial decrees and local customs? To what extent there was a difference between the theory and practice of Islamic law in that period? What was the role of Islamic law in the organisation and regulation of society? Whether Islamic law is capable of evolution and development with the passage of time?

Kozlowsky finds that the Muslim society was diverse in its beliefs and practices of Sharī‘a and it was wrong for British rulers to assume that the Indian Muslims formed one entity regulated by a uniformed law. The pre-colonial society was governed more by the custom than by the texts of law. Given this dichotomy in the theory and practice of law and its religious nature, the law was assumed to be static. The English legal system stymied any development in Islamic law by refusing to accept new interpretations of the old texts and by enforcing the doctrine of precedent. Under this doctrine, the rulings of British courts, rather than the Sharī‘a, provided the binding law.

These findings are ingenious and intriguing, which provide insights into the pre-partitioned Muslim society of India. However, there are two related issues, which are conspicuously missing from this work: first, the issue of public wakf properties; and second, the transplantation of new legal institutions in India and their relation with the wakf. Historical sources inform us that a large number of schools and public utilities including monumental buildings such as Taj Mahal were supported through the revenue generating wakf properties for their upkeep. What became of these properties after the regime change? Kozlowsky does not tell about them. Second point that requires further research relates to the reception of new institutions by Indian Muslims. When private/family wakf was invalidated by the Privy Council in 1894, why didn’t the landowning Muslim elite make use of trust, a wakf like English law institution? The trust was introduced in India in 1882 and is regarded as an economically efficient institution. This book focuses on how the Indian Muslims launched a political campaign in order to get legalised the family wakf but sheds no light on the issue of alternate choice, which might have been used by them. This casts doubt on the main conclusion of the writer that the family wakf was merely a devise to protect family wealth and it was only used after the advent of colonial rule.

Book Review: The Long Divergence: How Islamic Law Held Back the Middle East? by Timur Kuran Princeton University Press, Princeton and Oxford, 2011

Reviewed by Zubair Abbasi, DPhil Law Candidate, Oxford University

The economic descent of Muslim world since post medieval period and its continuous underdevelopment is one of the most puzzling questions of world history. Although the rise and fall of nations is a recurring theme in human history, yet a hibernation stretching over half a millennium is unprecedented. Some historians are of the view that it is not that the Muslim world declined rather it is Europe, which surpassed rest of the world. The rise of Japan in the early 20^th century and the economic ascent of China and India in recent years indicate that other nations of the world are equally capable of making progress and competing with the Western world.

There have been various explanations for the continuous economic stagnation of the Muslim world in general and that of the Middle East in specific. It is pointed out that its geographical location made the Middle East vulnerable to military attacks from various sides. This problem was exacerbated by plagues and famines that reduced a large number of population during the 14^th and 15^th centuries. This was followed by the change of routs of international trade that eclipsed the commercial centers of the Middle East during the 16^th and 17^th centuries. A combination of these physical factors did not allow commerce and industry to flourish. Consequently, scientific and technological revolution could not take place and thus the Middle East was left behind in economic prosperity and political ascendancy. These explanations were challenged by some scholars who focused upon the role of human beliefs and attitudes in responding to challenges posed by the change of circumstances. The popular explanation in the West has been based on culture whereby Islam is regarded as the primary cause of underdevelopment. This explanation is endorsed by the fact that unlike Christianity, Islam did not went through the process of reformation. This appears to be a logical corollary of Weberian thesis that places the Protestant Ethics at the heart of the rise of the West.

In this context, an important contribution of Kuran’s The Long Divergence is that it offers an alternative and startling explanation of the decline of Muslims. He identifies certain features of Islamic law that proved economically inefficient. His argument is: first and foremost, the egalitarian Islamic law of inheritance discouraged accumulation of wealth by dividing wealth amongst the members of family. The permissibility of polygamy exacerbated this problem as it caused fragmentation of the wealth of a rich merchant who had several wives and many children. As the merchant class and nobility could not accumulate enough wealth, they failed to gather sufficient strength to pressurize the political elites for pro commerce policies. Therefore, the rulers remained authoritarian and anti-mercantilist. Some other aspects of Islamic law also contributed to the problem. For instance, the law of contract and partnership remained simple. The alternative to the corporation under Islamic law—waqf—was ineffective to respond to changing commercial needs. Although the law against interest was avoided through legal stratagems, such devices imposed their own costs and consequently deprived the commerce from the primary engine of growth—credit finance. The prohibition of apostasy not only discouraged Muslims from criticizing the Islamic legal institutions, it also made it impossible for Muslim merchants to use non-Muslim legal system for conducting their businesses.

Professor Kuran’s ideas have attracted a lot of intellectual attention since he started his work on Islamic law and development in the mid 1990s. This book presents an epitome of research stretching over a period of one and a half decade. The book is also unique as it is a systematic analysis of the issue of the decline of Muslims by a Muslim scholar based and educated in the top American universities. The traditional explanation of the downfall of Muslims by the majority of Muslim scholars has been offered in a religious paradigm. It provides that dictators and foreign occupiers are punishment from God for the sins of people. Professor Kuran, for the first time, attempts to establish a causal relationship between Islamic law and economic development. However, this is exactly where his analysis is found deficient. Professor Kuran assumes the religious nature of Islamic law as the primary cause of its being static though he challenges the popular notion of the closure of the gates of Ijtihad. If Islamic law was receptive to change, then why did it not adopt itself by borrowing modern ideas as happened later in the second half of the 19^th century? This is especially true with respect to Islamic commercial law, which is not entirely based on the Quran and the tradition of the Prophet (peace be upon him).

Kuran’s answer to this question is that although Islamic law did not remain frozen in time, yet it did not change to an extent to support scale and scope of economic activity. However, it is important to note that in the absence of an economy of scale and scope how could Islamic law have transformed itself? The underlying assumption in Kuran’s thesis is that it is the law that leads towards development. Western experience, however, shows that it is the other way round. It was the commercial activity, which made its way against the rigid common law and the skeptic state.

Kuran rightly compares the Middle Eastern experience with that of the West, which overcame the religious prohibition of interest and the clerical anti-science attitude. But why did the Middle East fail to overcome its hurdles towards development? Can this question be answered within a single paradigm of Islamic law? Kuran defends the accuracy of his approach by arguing that he has traced down the causes of the problem at the root level rather than looking towards the symptoms at the top. He argues that historians have done enough research while explaining the role of state in keeping the Middle East backward. Such an approach, according to him, is inappropriate. However, his own approach ignores the social and political structure of the society entirely. Thus we find Islamic law as all pervasive and the sole binding force in society.

Kuran acknowledges the qanun (imperial decrees) and custom as important sources of law within the Islamic legal system, however, he does not explore their relationship with the legal texts of Fiqh. Why did Islamic law not develop a mechanism to curb the powers of ruling authorities? Why did the merchant class not pool resources through commercial networks and devise mechanism to get rid of simple partnership rules? Whether the corporation is a cause or effect of economic development? Was there actual demand for big businesses in pre-nineteenth century Middle East? Why did the private sector remain small and stagnant while the public sector showed remarkable development in the Ottoman Empire? Why was there no public-private partnership in Muslim states? What is the relationship between economic practice and commercial law?

These are only a few out of myriads of questions, which cannot be answered in a uni-causal paradigm of law offered by Professor Kuran. However, he has successfully generated an important debate about Islamic law and development. This will definitely prompt other scholars and researchers to systematically explore this issue, which remains an undiscovered territory by Muslim intelligentsia for a considerable period of time. 

Book Review: The Impossible State by Wael B. Hallaq—Some Preliminary Reflections

The thesis of this book is that “Islamic State” judged by any standard definition of modern state is ‘both an impossibility and a contradiction in terms’. It is asserted that moral-legal system based on divine sovereignty is essential for Islam as much as sovereignty is essential for the modern state. Therefore, there can be no Islamic state (p51). Hallaq argues that the paradigmatic ‘Islamic governance’ does not differentiate between the legal, the moral, and the mystical. This makes it a misfit within the structure of not only the modern state but also the globalised world dominated by capitalism and corporations (pp137-8)

Students of political science would notice that the doctrine of sovereignty was a historical construct. It was the result of the Peace of Westphalia in 1648, which ended the religious wars in Europe and restricted the powers of Roman Catholic Church to interfere in the matters of European states. As sovereignty is a supreme authority which need not be absolute, and the rise of supra-national organisations such as the UN, EU and WTO have restricted the powers of nation states, it is not very hard to imagine that an Islamic state could be sovereign within the limits of Sharī‘a.

Apart from political science, Hallaq engages with other disciplines of social science and humanities. This book is a fascinating piece of scholarship interwoven in an interdisciplinary jargon and only a scholar of Hallaq’s stature could have produced it. As a revisionist scholar, Hallaq is credited for not only breaking open the so called closed gates of Ijtihād, but also bringing down ‘Schacht’s castle’ about the origins of Islamic law. I find this work quite impressive, however, my main concern is about its teleology. But before I present my reflections, it is advisable to first explore this masterpiece.

After setting its premises in chapter 1, chapter 2 sets out to define the Modern State.  It is followed by chapter 3 which establishes contradiction and confusion in the theory of Separation of Powers in the first part of this chapter. In the second part, the author argues that the term “Islamic State” is anachronistic and rather prefers the use of “Islamic governance” for the historical phenomenon that has been described by other scholars as “Islamic State”. He then describes the Islamic moral-legal system, which according to him, is based on complete separation of powers between the legislature and executive. He argues that Islamic “legislators”—muftīs represented the community and successfully put a check on rulers’ powers. He challenges the thesis of Oriental despotism and ends this chapter with the assertion that “Shar‘ī structures” provide for John Rawl’s “well ordered society” in which citizens have a shared sense of justice (pp72-3).

If the first half of the book builds up to show how “Islamic governance” is perfectly suited to the models of ‘rule of law and democracy’, the second half is dedicated to establish that “modern state” is an impossibility under Islamic modes of governance. Thus chapter 4 shows that the separation of law and morality under Western tradition along with the rise of new-Hobbesian political state has made it incompatible with the norms of Sharī‘a. This theme is further developed in chapter 5. Here it is shown that how modern state controls citizens through not only techniques of surveillance but also through the provision of education and other public services. This is contrasted with the “Islamic governance” that is based on the “technologies of self” which do not differentiate between the moral, the legal and the mystical.

Chapter 6 extends the analysis and argues that in a globalised world primarily based on capitalist economy, “Islamic governance” based on moral principles is an impossibility. Hallaq also provides a critique of corporations from Islamic perspective. He attributes the absence of juristic personality under Islamic law to the morality of Sharī‘a because had the corporate form been tolerated it might have led to unwarranted consequences. To support his argument, he refers to the English government’s banning of corporations in the sixteenth century [should be eighteenth century] on the basis of “moral sanity”, which did not last long. (p154)

The final chapter reiterates the main thesis of the book by arguing that the modern state is not a ‘neutral tool of governance’, which could be used to achieve the moral objectives of Sharī‘a. The book ends on an elegant note that the moral problems posed by modernity are not simple challenges for Muslims alone, rather the whole world shares these challenges.

Hallaq’s thesis appears to present an incisive critique of modernity and Western liberal democracy. However, its subtext challenges the political Islam. Since an Islamic state is an impossibility, and Sharī‘a is incompatible with the very notion of the state, the whole point of a political organisation based on the principles of Sharī‘a is preposterous. Sharī‘a is based on moral principles and it requires an individual to comply with its injunctions voluntarily and with the intention of obedience to God, therefore, any system of governance based on authoritative sanctions is antithetical to Sharī‘a.

In order to strengthen and persuasively argue his thesis, Hallaq had to conflate some historical facts. First, he had to magnify the peculiarity of modern state and portray it as a distinctive European phenomenon. One may ask, if state is a unique European construct, so is the ‘law’. It follows that if pre modern Muslim political models of governance cannot be called ‘state’, likewise, Sharī‘a could not be translated as law. Hallaq accepts this but yet still he describes Muslim jurists ‘muftis’ as legislators—the representatives of civil society. Perhaps more problematic is his account of Islamic judicial system which is shown to be an exclusive domain of Sharī‘a. In this account, Sharī‘a is an all encompassing and all embracing code which deals with minute details of every aspect of life. This ahistorical depiction of Sharī‘a is contrary to Hallaq’s observations in his earlier work ‘Sharī‘a: Theory, Practice and Transformation’, where he notes, ‘Islamic law depended, in both theory and practice, on the cooperation of customary (‘āda, ‘urf) and royal law (siyāsa shar‘īyya).' (p368 italics original). In this work, however, both custom and imperial law are shown to be subservient to Sharī‘a.

The subtitle of the book is ‘Islam, Politics, and Modernity’s Moral Predicament’. However, what is conspicuously missing is any reference to the writings of the proponents of ‘Political Islam’. One finds a few references to Syed Qutub. Khomeini is also mentioned in a footnote, and so is the Brotherhood of Egypt. However, Mawdudi is significant only by his absence. This is intriguing since any discussion on the issue of Islam and state remains incomplete without Mawdudi’s contribution in this field, despite its being unorthodox. Likewise, the absence of any reference to leading Muslim philosopher Muhammad Iqbal renders the otherwise highly sophisticated work deficient.

Despite above observations, this is a remarkable piece of work and undoubtedly it will help generate a healthy debate about the relationship between Islam and modern state. It is thought provoking and has succeeded in raising the questions which would grapple with the minds of both students and accomplished scholars.