Police: The religious functions of the caliphate

The police

In the ‘Abbasid dynasty and in the dynasties of the Umayyads in Spain and under the ‘Ubaydid(-Fatimids) in Egypt and the Maghrib, the control of crimes and imposition of punishments required by the religious law was also a special (task) and was delegated to the chief of police (sahib ashshurtah).

The police is another religious function that under these dynasties belonged to the positions connected with the religious law. Its field is somewhat wider than that of the office of judge. It makes it possible for suspects to be brought into court.

It decides upon preventive punishments before crimes have been committed. It imposes the punishments required by the religious law where they are due, and determines compensation in cases of bodily injury where the law of talion applies. It imposes punishments not provided for by the religious law, and provides for corrective measures against those who did not execute the crimes (they planned).

The proper functions of the police and of torts were forgotten during the dynasties in which the nature of the caliphate was no longer remembered. Torts were transferred to the ruler whether he had been delegated by the caliph to take care of them or not. The police function was split into two parts.

One of them was that of taking care of suspects, imposing the punishments required by the religious law, and amputating criminals condemned for crimes punished by the amputation of a limb, and seeing to it that the laws of talion were applied where appropriate. For these duties, the dynasties appointed an official who exercised his office in the service of the political (establishment) without reference to the religious laws.

That official was sometimes called wall (governor), and sometimes shurtah (police). The remaining (former police functions dealt with) punishments not provided for by the religious law and the imposition of punishments for crimes fixed by the religious law. They were combined with the functions of judge previously mentioned.

They became part of the official duties of the office (of judge), and have so remained down to this time.

This position was taken away from the people who shared in the group feeling of the dynasty. When there was a religious caliphate, the caliph entrusted the function, since it was a religious office, only to Arabs or to clients-allies, slaves, or followers-who shared in their group feeling and upon whose ability and competence to execute the tasks they could rely.

When the character and appearance of the caliphate changed and royal and government authority took over, the religious functions lost to some degree their connection with (the powers in control), in as much as they did not belong among the titles and honors of royal authority. The Arabs later on lost all control of the government. Royal authority fell to Turkish and Berber nations.

These caliphal functions, as far as their character and the group feeling that belonged to them was concerned, were even more remote from them (than from their predecessors). This was because the Arabs had been of the opinion that the religious law was their religion and that the Prophet was one of them and that his religious laws distinguished them in their thought and action from the (other) nations.

The non-Arabs did not think that way. If they had some respect for (these functions) it was merely because they had become Muslims. Therefore, they came to entrust them to men outside their own group who had become familiar with (these functions) in the dynasties of former caliphs. Under the influence of the luxury of the dynasties to which they had been accustomed for hundreds of years, these people had forgotten the old desert period and desert toughness. They had acquired (the habits of) sedentary culture, luxurious customs, tranquility, and lack of ability to take care of themselves.

In the kingdoms that succeeded the (rule of the) caliphs, the functions of the caliphate became the prerogative of this kind of urban weakling. They were nolonger exercised by people of prestige, but by persons whose qualifications were limited, both by their descent (which was different from that of the men in power) and by the (habits of) sedentary culture to which they had become accustomed.

They were despised as sedentary people are, who live submerged in luxury and tranquility, who have no connection with the group feeling of the ruler, and who depend on being protected (by others). Their position in the dynasty derives from the fact that (the dynasty) takes care of the Muslim religious community and follows the religious laws, and that these persons know the laws and can interpret them through legal decisions (fatwa).

They have no standing in the dynasty because they are honored as personalities. Their standing merely reflects an affectation of respect for their position in the royal councils, where it is desired to make a show of reverence for the religious ranks. They do not have executive authority to make decisions in (these councils). If they participate in (the making of decisions), it is just as a matter of form, with no reality behind it. Executive authority in reality belongs to those who have the power to enforce (their decisions).

Those who do not have the power (to enforce their decisions) have no executive authority. They are merely used as authorities on religious law, and their legal decisions (fatwa) are accepted. This is indeed the fact. God gives success.

Some scholars think that this is not right, and that rulers who keep jurists and judges out of (their) councils act wrongly, since Muhammad said, “The scholars are the heirs of the prophets.” 381 However, it should be known that it is not as (such scholars) thinks 382 Royal and governmental authority is conditioned by the natural requirements of civilization; were such not the case, it would have nothing to do with politics. The nature of civilization does not require that (jurists and scholars) have any share (in authority).

Advisory and executive authority belongs only to the person who controls the group feeling and is by it enabled to exercise authority, to do things or not do them. Those who do not have group feeling, who have no control over their own affairs, and who cannot protect themselves, are dependent upon others.

How, then, could they participate in councils, and why should their advice be taken into consideration? Their advice as derived from their knowledge of the religious laws (is taken into consideration) only in so far as they are consulted for legal decisions (fatwa). Advice on political matters is not their province, because they have no group feeling and do not know the conditions and laws which govern (group feeling). To pay honor to (jurists and scholars) is an act of kindness on the part of rulers and amirs. It testifies to their high regard for Islam and to their respect for men who are in any way concerned with it.

To understand Muhammad’s statement, “The scholars are the heirs of the prophets,” it should be realized that the jurists of this time and of the recent past have represented the religious law mainly by ruling on ritual practices and questions of mutual dealings (among Muslims).

They make (such rulings) for those who need them to be able to act in accordance with them. This has been the goal of (even) the greatest among (them). They are identified with (the religious law) only to a limited extent (and are known to be experts in it only) under certain conditions. The early Muslims, as well as pious and austere Muslims, on the other hand, represented the religious law in (all its aspects) and were identified with (all of) it and known to have had a thorough (practical) knowledge of its ways. People who represent the religious law without (recourse to the process of) transmission, may (be called) “heirs.” Such, for instance, were the men mentioned in al-Qushayri’s Risalah. 383

People who combine the two things 384 are religious scholars, the real “heirs,” such as the jurists among the men of the second generation, the ancient Muslims, and the four imams, 385 as well as those who took them as models and followed in their steps. In the case of a Muslim who has only one of the two things, the better claimto be called an “heir” goes to a pious person rather than to a jurist who is not pious.

The pious man has inherited a quality. The jurist who is not pious, on the other hand, has not inherited anything. He merely makes rulings for us as to how to act. This applies to the majority of contemporary (jurists) 386 “except those who believe and do good, and they are few.”