Fatawa 'Alamgiri

Fatawa 'Alamgiri also known as Al-Fatawa al-'Alamgiriyya (Arabic: الفتاوى العالمكيرية‎) or Al-Fatawa al-Hindiyya (Arabic: الفتاوى الهندية‎) is a sharia based compilation on statecraft, general ethics, military strategy, economic policy, justice and punishment, that served as the law and principal regulating body of the Mughal Empire, during the reign of the Mughal emperor Muhammad Muhiuddin Aurangzeb Alamgir.[1] Heralded as "the greatest digest of Muslim law made in India",[2][3] the compilation has been widely regarded to be one of the most well organised works in the field of Islamic jurisprudence (Fiqh).[4]

Fatawa 'Alamgiri
Hafiz Aurangzeb reading Quran
AuthorAurangzeb and various prominent Islamic scholars
LanguageArabic and Persian
Publication date
17th century

The collection comprises verses from the Quran, supplemented by Hadiths narratives, including those of Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawood and Jami` at-Tirmidhi.[5]

Fatawa-e-Alamgiri was the work of many prominent scholars from different parts of the world, including Hejaz, principally from the Hanafi school. In order to compile Fatawa-e-Alamgiri, emperor Aurangzeb gathered 500 experts in Islamic jurisprudence (Fiqh), 300 from 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 Faqīh of the time.

The Fatawa is notable for several reasons:

  • It spanned 30 volumes originally in various languages, but is now printed in modern editions as 6 volumes [6]
  • It provided significant direct contribution to the economy of South Asia, particularly Bengal Subah, waving the proto-industrialization.[7]
  • It served as the basis of judicial law throughout the Mughal Empire
  • It created a legal system that treated people differently based on their religion

As the power shifted from Muslim rulers in India to British Raj, 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.[8] Fatawa-i Alamgiri as the documented Islamic law book, became the foundation of legal system of India during Aurangzeb and later Muslim rulers. 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.[8][9]

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.[8][10] However, this assumption unravelled in the 2nd half of the 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.[8] 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.[8] 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.[10]

The British tried to sponsor translations of Fatawa-i Alamgiri. In the late 18th century, at the insistence of the British, the al-Hidaya was translated from Arabic to Persian. Charles Hamilton[11] 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.[12] Neil Baillie published another translation, relying on Fatawa-i Alamgiri among other documents, in 1865, as A Digest of Mohummudan Law.[8][13] In 1873, Sircar published another English compilation of Muhammadan Law that included English translation of numerous sections of Fatawa-i Alamgiri.[14] These texts became the references that shaped law and jurisprudence in colonial India in late 19th and the first half of the 20th century, many of which continued in post-colonial India, Pakistan and Bangladesh.[8][10]

Discussion

The Fatawa-e-Alamgiri (also spelled Fatawa al-Alamgiriyya) was compiled in the late 17th century, by 500 Muslim scholars from Medina, Baghdad and South Asia, in Delhi (India) and Lahore (Pakistan), led by Sheikh Nizam Burhanpuri.[15] 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.[15][16]

According to Jamal Malik, the document stiffened the social stratification among Muslims and broke from the consensus of Hanafi Law.[17][18] He argues certain punishments reified the established categories: it introduced that Muslim nobles such as Sayyids were exempt from 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.[19] The emperor was granted powers to issue farmans (legal doctrine) that overruled fatwas of Islamic jurists.[15]

In substance similar to other Hanafi texts,[20] the laws in Fatawa-i Alamgiri describe, among other things, the following.

Criminal and personal law
  • Personal law for South Asian Muslims in the 18th century, their inheritance rights,[21]
  • Personal law on gifts,[22]
  • Apostates neither have nor leave inheritance rights after they are executed,[23]
  • The guardian of a Muslim girl may arrange her marriage with her consent,[24]
  • A Muslim boy of understanding, required the consent of his guardian to marry.[25]
  • Laws establishing the paternity of a child arising from valid or invalid Muslim marriages,[26]
  • A Muslim man with four wives must treat all of them justly, equally and each must come to his bed when he so demands,[27]
  • Hudud punishments for the religious crime of zina (pre-marital, extra-marital 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 i.e Stoning for a Married (Muhsin) person (free or unfree), and as for the non-Muhsin, a free person will get one hundred stripes and a slave will get fifty.[28]

Pillage and slavery
  • If two or more Muslims, or persons subject to Muslims, who enter a non-Muslim controlled territory for the purpose of pillage without the permission of the Imam, and thus seize some property of the inhabitants there, and bring it back into the Muslim territory, that property would be legally theirs.[29]
  • The right of Muslims to purchase and own slaves,[30]
  • A Muslim man's right to have sex with a captive slave girl he owns.[31]
  • No inheritance rights for slaves,[32]
  • The testimony of all slaves was inadmissible in a court of law,[33]
  • Slaves require permission of the master before they can marry,[34]
  • An unmarried Muslim may marry a slave girl owned by another but a Muslim married to a Muslim woman may not marry a slave girl,[35]
  • Conditions under which the slaves may be emancipated partially or fully.[36]

The Fatwa-e-Alamgiri also formalized the legal principle of Muhtasib, or office of censor[37] 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

Fatawa-i Alamgiri became the reference legal text to enforce Sharia in colonial south Asia in the 18th century through early 20th century.[8] The document created a school of orthodox Islamic law specialists in India, particularly after the death of Aurangzeb.

Contemporary comments

Burton Stein states that the Fatawa-i-Alamgiri represented a re-establishment of Muslim ulama prominence in the political and administrative structure that had been previously 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.[38]

Scholars[39][40][41] state that the British colonial efforts to translate and implement Sharia from documents such as the 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.[42] 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.[42]

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See also

References
  1. Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, pp. 194-197
  2. The Cambridge History of India, Volume 5, Page 317
  3. The End of Muslim Rule in India, Volume 1, page 192-198
  4. https://islamqa.info/en/answers/174824/biography-of-the-moghul-ruler-aurangzeb-was-he-salafi-in-his-aqeedah
  5. The Administration of Justice in Medieval India, MB Ahmad, The Aligarh University (1941)
  6. Al-Bernhapuri, Nazarudeen. Fatawa Hindiyyah. 1st ed. Vol. 1. 6 vols. Damascus, Beirut, Kuwait: Dar an-Nawadir, 2013.
  7. Hussein, S M (2002). Structure of Politics Under Aurangzeb 1658-1707. Kanishka Publishers Distributors. p. 158. ISBN 978-8173914898.
  8. David Arnold and Peter Robb, Institutions and Ideologies: A SOAS South Asia Reader, Psychology Press, pp. 171-176
  9. K Ewing (1988), Sharia and ambiguity in South Asian Islam, University of California Press, ISBN 978-0520055759
  10. J. Duncan Derrett (1999), Religion, Law and State in India, Oxford University Press, ISBN 978-0195647938
  11. Charles Hamilton, Guide: A Commentary on the Mussulman Laws at Google Books, Allen & Co, London
  12. U Yaduvansh (1969), The decline of the role of the qadis in India: 1793-1876, Studies in Islam, Vol 6, pp. 155-171
  13. A Digest of Moohummudan Law at Google Books, Smith Elder London, Harvard University Archives
  14. The Muhammadan Law at Google Books, (Translator: SC Sircar, Tagore Professor of Law, Calcutta, 1873)
  15. M. Reza Pirbhai (2009), Reconsidering Islam in a South Asian Context, Brill Academic, ISBN 978-9004177581, pp. 131-154
  16. Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, pp. 192-199
  17. 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."
  18. Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, p. 195, Quote - "In some instances the Fatawa even disagreed with the consensual Hanafi law when it stipulated that rebels could be sentenced to death. "
  19. Jamal Malik (2008), Islam in South Asia: A Short History, Brill Academic, ISBN 978-9004168596, p. 195, Quote - "the noblest including ulama and sayyids (ulwiyya) were exempted from physical punishments, while governors (umara) and landholders (dahaqin) could be humiliated but not physically punished or imprisoned. The middle class (awsat) could not be physically punished but humiliated and imprisoned, while the lower classes (khasis and kamina) were subjected to all three categories of sentences: humiliation, physical punishment and imprisonment "
  20. 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
  21. A digest of the Moohummudan law p. 344 with footnote 1, Neil Baillie, Smith Elder, London
  22. A digest of the Moohummudan law pp. 515-546 with footnote 1 etc, Neil Baillie, Smith Elder, London
  23. 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)
  24. 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)
  25. A digest of the Moohummudan law p. 5 with footnote 1, Neil Baillie, Smith Elder, London
  26. A digest of the Moohummudan law pp. 392-400 with footnote 2 etc, Neil Baillie, Smith Elder, London
  27. 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)
  28. A digest of the Moohummudan law pp. 1-3 with footnotes, Neil Baillie, Smith Elder, London
  29. A digest of the Moohummudan law pp. 364 with footnote 3, Neil Baillie, Smith Elder, London
  30. 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)
  31. 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)
  32. 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
  33. A digest of the Moohummudan law pp. 371 with footnote 1, Neil Baillie, Smith Elder, London
  34. 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
  35. 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)
  36. A digest of the Moohummudan law pp. 386 with footnote 1, Neil Baillie, Smith Elder, London
  37. Regulation of Morals Mughal Administration, J Sircar
  38. Burton Stein (2010), A History of India, John Wiley & Sons, ISBN 978-1405195096, pp. 177-178
  39. 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
  40. 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
  41. Daniel Collins (1987), Islamization of Pakistani Law: A Historical Perspective, Stanford Journal Int'l Law, Vol. 24, pp. 511-532
  42. M Siddiqui (2012), The Good Muslim: Reflections on Classical Islamic Law and Theology, Cambridge University Press, ISBN 978-0521518642, pp 12-16

Further reading
  • 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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