Mattson, Ingrid Review of Rebellion and Violence in Islamic Law by Khaled Abou El Fadl

B R
speech and elections among competing elites, a democracy that is incapable

of solving the economic and social problems that stem from dependency and
subjugation to the dictates of international capital and its sole superpower.
Ralph M. Coury
Fairfield University
Fairfield, Connecticut
Rebellion and Violence in

BookMuslim
2
96
The Reviews
Search for
World
Arab Democracy: Discourses and Counterdiscourses
Islamic Law
By Khaled Abou El Fadl
Cambridge University Press, 2001
In this detailed study, Khaled Abou El Fadl traces the development of

Islamic legal discourses on rebellion by relying on original sources from the
second AH/eighth CE to the fourteenth/twentieth centuries. Abou El Fadl
acknowledges that he focuses most closely on discourses preceding the
eleventh/seventeenth centuries and to that end, a more accurate title may have
been “Rebellion and Violence in Pre-modern Islamic Law.” Indeed, this study
is perhaps as important for what it shows about the nature of pre-modern
Islamic legal discourse as it is for exploring the specific issue of rebellion
in Islamic law.
The tired notion that Islamic legal thought “stagnated” after an initial
dynamic formative period has unfortunately not yet been put to rest. As it turns
out, the lack of development of Islamic law asserted by most modern scholars
reflects more their own limited and superficial reading of the texts than the
content of the law itself. These commentators make grand generalizations from
singular statements of individual scholars and a few dehistoricized texts. In
order to really understand the trajectory of Islamic legal theory, more work has
to be done. Abou El Fadl has done that work. What he demonstrates is that
“shifts in legal doctrine were expressed in the most unassuming and technical
fashion — texts that appeared to adhere to precedent were actually materially
restructuring the field, and jurists who announced that they were reinventing
the law turned out to adhere to precedent (ix).” Abou El Fadl’s careful and
detailed schools and historical periods sets a new standard for researchers who
make claims about what “Islamic law says.”
385
T M W • V 96 • A 2006
With respect to the specific issue of rebellion, Abou El Fadl begins with a
refutation of the claim made by modern researchers that pre-modern Muslim
jurists were “quietist.” Researchers such as Gibb and Lambton came to such
conclusions after reading a few treatises on the political theory of the
caliphate. What they found there was a concession by jurists to the legitimacy
of rulers who had attained power by all kinds of force. Abou El Fadl argues
that claims that the jurists were quietist are “hopelessly ambiguous and quite
meaningless.” Given that “order is one of the main functions of the law, and
that the culture of lawyers creates a proclivity towards favoring stability and
the reestablishment of order and legality, it is not at all surprising that Muslim
jurists would demand obedience to the law or a government. The surprising
fact, and the fact that needs to be analyzed, is why many jurists permitted
rebellion at all (31).” Too many commentators who have analyzed the theories
of the caliphate have ignored what Abou El Fadl calls the “legal imperative” of
the jurists — that is that law, by its nature, favors order and stability. Thus,
once a ruler comes to power, legal scholars favored his recognition, since that
contributed to stability. However, with their theories of rebellion, they also
recognized a certain legitimacy to rebellion.
In the early part of his book, Abou El Fadl describes the historical events
that contributed to the development of a theory of rebellion. The conflicts after
the death of the Prophet among various factions of his Companions were
foundational to this theory. Abou El Fadl shows that “in the Sunni tradition,
most of the debates take place in the context of discourses attempting to
defend or rehabilitate the credibility of the Prophet’s Companions. These
debates, with their various trends and tensions, became the foundation on
which the law of rebellion was established. The juristic discourses on rebellion
moved from the realm of theological apologetics to the realm of legalities in
which the primary concern was the function of law and the construction of
order (47).”
It took legal scholars about two hundred years to produce a coherent and
systematic position on rebellion and to respond to the early Islamic experience
with civil wars and the constant armed challenges to the Umayyads and early
Abbasids. As the jurists developed their positions, they were not very
concerned with political legitimacy — they were willing to concede the
legitimacy of the usurper, but they were concerned with the legality of the
government’s conduct. Their loyalty being to the rule of law, not to the ruler,
the jurists drew distinctions between rebels and bandits and determined the
proper legal consequences for both groups.
Many scholars required that three conditions be met for judging that
someone who committed violence was a rebel, rather than a bandit: that he
was acting on a plausible (if incorrect) interpretation of Islamic sources that it
386
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was his duty to act against an unjust ruler, that he committed an overt act of
rebellion, and that he acted with a group. As long as a rebel does not engage
in overt banditry, rape and lawlessness, he is treated much more tolerantly
than a bandit. However, Abou El Fadl shows that different scholars among the
legal schools took diverging positions on these conditions and that some
scholars, particularly the early Hanafi scholars, were much less tolerant of
rebels than other scholars, particularly the Shafi’is. That it takes Abou El Fadl
over two hundred pages to thoroughly but not exhaustively explore these
differences shows the richness of the Islamic heritage.
In one of the most interesting parts of the book, Abou El Fadl argues
that a close analysis of the legal literature demonstrates that some scholars
remained “traditionalists” with respect to the law of rebellion, while others
adopted “revisionist” positions. Not surprisingly, Ibn Taymiyya emerges as one
of the most independent-minded revisionist scholars. Abou El Fadl argues that
Ibn Taymiyya “deconstructed” the discourse, showing that it simultaneously
conceded moral authority to unjust rulers while also encouraging rebellion
that only resulted in social chaos and corruption. According to Abou El Fadl,
Ibn Taymiyya develops his own position, which is to advocate “non-violent
resistance to illegal commands” and “disengagement from all violent political
conflicts.” Muslims should neither support an unjust ruler, nor incite violent
rebellion, but “should focus on keeping their own private consciences pure
and promoting incremental non-violent reforms as circumstances might permit
(275).” At the same time, lest anyone conclude that Ibn Taymiyya was a
pacifist, we are reminded that he advocated and took part in violent campaigns
against sectarian groups and others he considered innovators in religion.
While exploring the diverse positions of dozens of Muslim jurists over the
centuries, Abou El Fadl reminds us that he is not drawing any conclusions
about the extent to which these legal theories impacted political power
and policies. This issue, he says, “needs a far more exhaustive study, and
cumulative investigations focused on specific historical periods and geographic
areas (263).” At the same time, he does present some evidence that the jurists
were sometimes frustrated that the public did not necessarily follow their
pronouncements. The ninth/fifteenth century Maliki jurist al-Wansharisi, for
example, expresses frustration at the fact that some local leaders encouraged
rebellion against unjust rulers, saying “The public has found it difficult to
accept the fatwa and refused to abide by it (236).” This shows the challenge
even well known and respected legal scholars have influencing “the public”
and convincing them that their oppression is preferable to a destructive
rebellion.
Abou El Fadl’s analysis of the law of rebellion really ends with the colonial
period, although he mentions a few developments that occurred during this
387
T M W • V 96 • A 2006
time. But with colonialism, the authority, education and institutions of Muslim
jurists were undermined and dismantled; their laws and influence waned. In
the winter of 2001, in an article published in the Middle East Report entitled
“Islam and the Theology of Power,” Abou El Fadl lamented the moral chaos
that ensued:
The moral foundations that once mapped out Islamic law and theology
have disintegrated, leaving an unsettling vacuum. More to the point,
the juristic discourses on tolerance towards rebellion and hostility to
the use of terror are no longer a part of the normative categories of
contemporary Muslims. Contemporary Muslim discourses either give lip
service to the classical doctrines without a sense of commitment or
ignore and neglect them all together. . . . modern nationalist thought
exercised a greater influence on the resistance ideologies of Muslim
and Arab national liberation movements than anything in the Islamic
tradition. The Islamic tradition was reconstructed to fit Third World
nationalistic ideologies of anti-colonialism and anti-imperialism rather
than the other way around.
Thus, no one should read Abou El Fadl’s book to try to understand the
contemporary situation in the Muslim world. Nevertheless, the pre-modern
legal theories contain sophisticated and insightful observations about the ways
in which violence on the part of governments and groups can be morally
assessed. This is an ethical issue that, unfortunately, will never be irrelevant
in any age.
Ingrid Mattson
Hartford Seminary
Hartford, Connecticut
388

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B R

speech and elections among competing elites, a democracy that is incapable

Rebellion and Violence in

In this detailed study, Khaled Abou El Fadl traces the development of

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