An Introduction to Islamic Law (14 page)

The notion of the
Circle of Justice begins with the idea that no political sovereignty can be attained without the
military; yet no military can be sustained without financial resources. These resources furthermore can be raised only through levying
taxes, which presupposes continuous economic productivity on the part of the subjects; but to maintain a level of prosperity that can sustain taxable income, justice needs to be ensured, and this in part means controlling the excesses of provincial officials whose vision of justice may be overshadowed by personal power and
rapacity. Thus, to be attained, justice requires public order, all-important social harmony, and control of abusive and greedy government servants. To achieve all this, the Shari
a, clearly the axis of governance, points the way. But the Shari
a cannot be implemented without political sovereignty, and this cannot be attained without the military. Here, the Circle is joined.

From the perspective of the
legists, on the other hand, this version of the Circle – while accepted as entirely valid – conceptually begins at the wrong point, since the emphasis is placed on the sovereignty of the ruler and his authoritative and military standing, rather than on the Law
. The legists would instead advocate the highest goal to be the attainment of justice through implementation of the Shari
a, which in turn requires public order and social harmony. In their conception, the sovereign’s function is to ensure stability and prevent internal fractiousness at any cost, and to this end he raises legally prescribed taxes to support his regime and implements
siyasa shar
iyya
, that is, political rule according to the prescriptions of Shari
a
.

S
iyasa shar
iyya
represented the discretionary legal powers of the ruler to enforce the
qadi
’s judgments and to supplement the religious law with administrative regulations that mostly pertained to the regime’s machinery of governance, including powers to limit jurisdiction to certain areas of the law or to particular types of cases, as well as to curb and discipline abuses by government officials. (This latter function came to be identified in both
Sunnism and
Shi
ism with the courts of grievances, known as
MAZALIM
.) The dilemma that regimes faced was their inability, due to distance from the center, to control the abuses of
provincial governors and their men who often extorted illegal taxes from the population. In addition to tax regulations,
siyasa shar
iyya
normally dealt with matters related to public order, land use, and at times criminal law and some aspects of public morality that could affect social harmony
. The qualification “
shar
iyya
” in this compound expression was intended to convey the notion that exercise of the powers of
siyasa
was not only permitted, but in fact mandated by Shari
a juristic theory and judicial practice. Such powers not only were consistent with the dictates of religious law, but could in no way constitute an infringement thereof if properly exercised. (Many Muslims nowadays view the
modern state as operating within this mandate, thereby missing in this evaluation the crucial fact that, in the functioning of pre-modern
siyasa
, the political regimes were subordinated to independent Shari
a, whereas in modernity the state has come to sit on top of a largely dismantled Shari
a.)