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Hüseyin Sağlam

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CONTENTIONS OF INDIAN HANAFİ SCHOLARS ON THE PERMISSIBil.ITY OF FINANCIAL INTEREST iN POST­

MUGHAL INDIA *

Bilal ALI**

It is popularly alleged that in 1807 CE, a century after the demise of the Mughal emperor Aurangzeb, Shah <Abd al-<Aziz Dihlawi (1159-1239/1746-1823), the erudite son of the nıujaddid Shah WalI Allah DihlawI (1114-1176/1702-1763) and the preeminent religious authority in Delhi at the tiıne, issued a decisive fatwa -on the scarus of India. Shal:ı <Abd al-<Aziz's fatwa, though not unequivocal since it spoke specifically to the issue of the issue of financial interest and not India's political status, nevertheless led many scholars to propose that he had effectively declared India to have transferred from a Dtlr al-Isltinı (lit. do main of Islam) to Dar al-lfarb (lit. do main of war). Shah <Abd al-<Aziz was undoubtedly witness to the harsh reality that Muslims faced in his tiıne: the leader of the Muslims no lenger held any real authority ever the people, and with the exception of a handful of religious matters, such as the Jumu<ah and 'ld prayers, the cali to prayer (adbtin), and the permissibility of slaughtering cows (which were likely ignored simply because of the heavy burden of their administrative oversight), Islamic law was unenforceable in nearly every sphere of state administration. Masjids were demolished without heş!tation and Muslim travelers were unable to enter the country 'Yithout obtaining their perrnission. 1

For preseotation at the conference on "The FiqbiHeritage in the Onoman Empire and lndia in Light of Printed Works and Manuscripts" hosred by Istanbul Foun­dation for Research and Education (!SAR), Isranbul Univeısiry Theology Faculry, and the Islamic Fiqh Academy lndia

Darul Qasin1, Glendale Heights, IL ı See Shah 'Abd al-'Aziz al-Dilılawi. Fatawa Sbtib 'Abd al-'A.ziz, Dar al-Mujt.aba,

Delhi 1311, 17, and Madani, l;iusayn AJ:unad, Naqsb-i lfayat, Dar al-Isha'at, Kara­chi, n.d., 409-414.

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CONTENTIONS OF lNDlAN HANAFI SCHOLARS ON THE PERMlSSIBILITY OF FlNANClAL ll\1TEREST IN POST-MUGHAL INDIA / B. ALl

Under such circumstances, Shah cAbd al-cAziz likely had no doubt as to India's new status asa non-Muslim dominion, or Dar al­I:Iarb. In one of several fatwas on the subject he states:

It is mentioned in (al-Fatawa) <A.famgiriyyalr in the "Chapter on Conquest by Non-Muslims":

"Know ehat Dar al-l:larb becomes Dar al-Islam under one condicion: ehe demonstration Ci:?bti1J of Islamic rule eherein. MuJ:ıammad (b. al-l:lasan al-ShaybanI) (131-189/749-804) scates in al-Ziytidtit: 'According to Abü I:Iaıüfah (80-148/699-767), Dar al-Islam becomes Dii[ al-l:larb only upon ehe fulfıllmem of three conditions. The füst is that non-Muslim rulings (af?kiim) are enforced in a manner of widespread proclamatioQ ('ala sabi/ al-isbtibti1J and that judgments are made therein nbc on the basis of Islamic nılings. The second is thac (such land) be . also adjacent co Dar al-l:larb and ehat no Islamic nation come between the . two. The third is ehat no beli ever nor dbimmi therein remains in a scate of security procured by ehe security (aman) ehac was escablished (for them) before' the conquest of ehe non-Muslims, a security given co the Muslim due to his lslam or (to the dbimmf) due co the cov~nant of protection (dbimmab). The illustration of the issue ·in question carries three possibilities: (i) either the re"sidents of D~r al-I:Iarb (abl al-{ıarb) overcome one of our lands, or (ii) the people ofa city apostatize, becorfie dominant, and therein enforce non-Muslim law, or (iii) dbimmfs breach the covenant of protection and become dominant over their own lands. In all such scenarios,

2 Al-Fattiwti «Alamgiriyyab, also popularly known as al-Fattiwtf al-Hindiyyab, was an impressive encyclopedia of codified legal ı:ulings commissioned by the emper­or 'Alamgir Aurangzeb (1028-118/ 1618-1707) less than a cenrury earlier. The man­ual was a massive undertaking that spanned India and the Arab world and, ac­cording ro some unreferenced claims, involved fiv:e hundred scholars. Compiled under the supervision of Shaykh Ni~m al-Din BurhanpürI (after whom the Dars Niµmi is named), the project included a number of prominent jurisrs, including the Shah's patemal grandfather, Shah 'Abd al-Ral.üm DihlawI, who worked under . the supervision of l\•lulla l;larnid Jaunpüri.

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the land will not become Daral-I:Iarb except upon the fulfillm~nt of the three conditions, or upon a single condition according to Abü Yüsuf (ca.113-182/731-798) and Mubammad, which is simply the demonstration of non-Muslim rulings therein, and (their view) is (in line with) sound legal analysis (qiytis)."3

According to Shah 'Abd al-<Aziz's elucidation, ali of the aforementioned conditions had been fulfilled in India". Hence, not only was India now non-Muslim domain, it was also necessaıy to consider ali of the possible legal mandates and consequences of such a domain. One such consequence was the issue of fı.ı:ı,ancial interest in dealings with non-Muslims in accordance with the dominant view of the I:Ianafi madhhab, i.e. that of Abü I:Ianifah and Mul:ıammad, which the Shah declared permissible between Muslims and non-Muslims, regardless of whether the Muslim was giving or receiving the money in interest.4

Contenti.ons on Greater India's Statos as Dar al­I;Iarb

Of course, Shah 'Abd al-'Aziz's ruling of perınissibility was contingent upon ehe validity of his declaration of Dar al-I:Iarb, and in this assertion he was not alone. Oeher erudite scholars in India shared his position, including Shah Rafi' al-Din DihlawI (1163-1233/1749-1817) and Qaçli Thana) Allah PanipattI (1144-1225/1731-1810).5 In the Bengal, I:IajI SharI'at Allah (1195-125.6/1781-1840), the founder of the Fara>idi reform movement, alsa unequivocally declared ehe Bengal to be Dar al-I:farb, and a number of Sindhi scholars, including 'Abd

3 Shah 'Abd al-'Aziz. Fattııvti 'Azfzl, H.M. Saeed Company, Karachi 1408, 582-583. 4 Ibid .. 582. 5 Shah 'Abd al-'Aziz, Fattıwtı 'Azizi, 582. See also Faisal Alunad Bhatkali Nadwi,

Tal;rık Azadi maiıı 'Ulama' kti Kirdtıı~ Majlis Tabqiqat wa Nashriyyat, Delili 2000, 266. Nadwi states that a copy of their fcrtwtis are in the possession of Nur al-I:Iasan KandhalwI. Some argue, however, that Bhatkali's attribution of such a stance to Shah Rafi' al-Din and Shah ısı:nac-ıJ is based on anecdotal evidence and therefore not conclusive.

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al-Ral:ırnan Tanawi, Makhdüm Mul:ıammad Tattawi (1104-1175/1692-1760), and Ibrahün Tattawi had issued fatwas along the same lines regarding the region of Sindh.6 Nearly a decade later, Sayyid AJ::unad BarelwI (1201-1246/1786-1831) was joined by Shah cAbd al-cAziz's nephew, Shal). Isına.en Dihlawi (1193-1246/1779-1831), in a popular yet short-lived jihad movement that was initiated on the basis of Sayyid

Abmad's conviction that "presently, in 1233 AH (1817 CE), the major

portion of India has become Dar al-I:Iarb''7• F?rty years later, during the Uprising of 1857, tbirty-four le:ıding scholars8 signed a fatwa declaring India Dar al-I:Iarb and exhorting Muslims to wage·an obligatory jihad against the British.9 It was during this period that prominent scholars

like Mawlana Mubammad Qasim NanotwI (1248-1297/1832-1880)1° and Mawlana Raslüd Al)111ad Gangolü Ci244-1323/1829-1905) made similar declarations.11 In the following century, Shah cAbd aı-c~iz's position on India as Dar a-I:Iarb would be supported by a growing list ,

6 See Ra'is Al:ımad Ja'fari Nadwi. Awrt1q-i Gıımgasbta, Mul:ıammad 'Ali Academy, Lahore 1968, 198-199. ·

7 This statement was attributed to Sayyid Af.unad Barelwi by Shah Ismac-ıJ DihlawL See Shah Isma'ıl Shahid, Şirtit al-Mııstaqrnı, Urdu translation by janrable Shah, Kurub Khanah Ashrafıyyah, Deoband, n.d., i07.

8 The long list includes, amongst others: Mawlawi·'Abd al-GhanI, .Mawlawi Mul:ıam­mad 'Ali, Mul)ammad Mürur Khan, Mul:ıammad ı;:>iya al-Din, Mufti lkram al-Din, Sayyid Ral:ımat 'Ali, Mufti Şadr al-Din, Sayyid Mul:ıammad Nadhir l;iusayn, Ral:ımat Allah, Nür )amal, Mul:ıanunad 'Abd al-Karim, Si.k:andar 'Ali, 'Abd al-Qadir, Farid al-Din, Mul:ıammad Sarfaraz 'AII, Sayyid Mal:ıbüb 'AliJa'fari, Abü AJ:ınıad Mu])am­mad ı:ı:amid al-Din, Sayyid Al).mad 'Ali, Uahl Baksh, Mul:ıamad Karim Allah, Mul:ıammad Ali l:lusayn, Sayf al-Ral:ıman, and Mul:ıammad Imdad 'AlL

9 Mul:ıammad Ayyüb Qadri, ]ang-i Aztldf 1857, Pak Academy, Karachi 1972, 402-406.

10 See Mul:ıammad Qasirn Nanotwi, Qt'lsim al-'Ulüm, 1, Urdu translation and mar­ginalia by .Mul:ıammad Anwar al-I:Iasan Sherkoti.as Anwar al-Nujüm, Nashiran Qur'an, Lahore 1974, 28,35.

11 Pound in a compilation of" R.ashid Abmad Gangohi's works entitled Ta'/iftit RasbTdiyyab which includes a large, though not comprehensive, collection of his . fatwas.

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of celebrated culama, including Imam Anwar Shah Kashmiri1 ~ (1292-1352/1875-1933), Mufti CAziz al-Ral:ıman <Uthmarü13 (1275-1347/1858-1928), MuftIMul;ı.ammadKifayatAllahDih.lawI14 (1292-1372/1875-1952), Mawlana I:Iusayn Atimad Madani15 (1296-1377/1879-1957), Mawlana Manaıir Al:ısan Gilarü16 (1309-1375/1892-1956), Mawlana Al:ımad 'Ali Lahori17 (1304-1380/1887-1961), Mawlana Sayyid Mul)arnmad Miyan (1321-1395/1903-1975), and Mufti Mul)ammad Shafi' 'Uthmarü (1314-1396/1896-1976).

It is important to note that the concept of Daral-Harbin the classical legal understanding does not imply a perpetuaj state of hostilicy between Muslims and non-Muslims. Different political entitieş with radically different attitudes towards Islam and Muslim may all fall under the broader category of Dar al-I:Iarb. Thus, a nation at peace or in treaty with Muslims will be called a Dar al-'Ahd or a Dar al-Muwada<al1, but will stili be seen through the classical lens asa subcategory of Dar al-I:Iarb. Similarly, both a domain in which Muslims lived in fear of life or property, a Dar al-Khawf, ora domain in which they lived in relative security, a Dar al-Aman, would traditionally fail under the broad category of Dar al-I:Iarb. Thus Dar al-I:Iarb

12 See his lecture iıotes on Sunan al-Tirmidbi entitled al-'Aıf al-Sbadi Sbaı~ı jaıııi' al-Tirmidbf, Matba'a Qasinü, Deoband 1342, 286, and in Jl!la/fıi:?tif Muf?additb Kasbmiı·i, Idarat Ta 'lifat Ashrafıyyah, Mu itan, n.d., 156-175.

13 Mufti 'Aziz al-Ral:unan was the head mufti of Dar al-'Ulüm Deoband. He claimed that his view was based on those of Shah 'Abd al-'Aziz, l:iaji Imdad Allah .Muhajir Makki, and .Mawlana Munir Nanoı'wi. Şee Fatawti Dar al-'Ulüm Deoba11d, XII, Janu'ah Islamiyyah Dar al-'Ulüm, Deoband 1983, 271-272.

14 ln 1939, Mu fti KifayatAllfilı not onJy labeJs India Daral-}:larb, he aJso claims a con­sensus of the contemporary 'ulama on the issue. See Kifayat al-Mııfti, l, compiled by l:lafiı al-Ral)man, Kohinur Press, Delhi 1971, 16-18.

15 In !;iusayn AJ:unad Madarü, Fattiwti Sbaykb al-Islam, Maktabah Diniyyah, Deo­band 1996, 141-143. According to Mawlana MadanI, tlıe ability of Muslims of per­form Jumu'ah and 'İd prayers without hindrance is stili insufficient grounds for declaring India Dar al-Islam.

16 Mana;ı:ir AJ:ısan Gilaru, .Mas'a/ab Sitd aur Daı· a/clfarb, printed with Abu al-A'la MawdOdI's Sıid, Islamic Publications, Lahore, n.d., 228-280.

17 Mushraq Al:ımad, .Mas'a/ab Sıid aur Dttr a/-lfarb, Deoband 1935, 30-31.

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does not imply a state of hostiliry ora mandate to emigrate from it.

Regardless, not all scholars agreed with India's newfound legal

status and the Shah's position did not go unchallenged. In 1870, for example, the British loyalist .Mawlawi Karamat cAlı (1214-1290/1800-1873) publicly proclaimed British India Dar al-Islam18• Mawlana <Abd al­I:fayy LaknawI (1264-1304/1848-1886) of the FarangI Mal1all madrasah

in Lucknow argued that India was Dar al-Islam on the grounds that

Abü I:Iarufah's three preconditions were yet unfulfilled, particularly the condition that judgments in the domain not be based on Islamic law. Laknawi argued that even thoug~ court judges were non-Muslims, the British had not placed restrictions on many Islamic laws and practices. 19

Mawlana Al:ımad Ric;la Khan BarelwI (1272-1340/1856-1921) similarly

clain1ed that because Muslims in India "are free to openly obs'erve the two crd festivals, perform the congregationa!Jumucah prayers, give the

call to prayer (adban) ... without opposition, and are able to perform religious duties, maı:riage ceremonies, and fosçerage ... according t0

Islamic law ... there is no doubt that Hindustan is Dar al-Islam.20• The

18 Other British loyalists tike Sir Sayyid Al:ımad K.han (1232-1315/1817-İ898) and his colleague Chiragh 'Ali (1260-1312/1844-1895) did not consider it legal in a coun­try in which Musl.ims Jive in peace and security and where .there was no chance of success in war to wage jihad against noQ,-Muslims. See Sir Sayyid Al,ımad Khan, klaqalat Sir Sayyid, XIII, Majlis Taraqqi Adab, Lahore 1974, 274-275.

19 'Abd al-I:Iayy Laknawi, Majmfı' al-Fattiwa, I, Qayyümin Press, Kanpür, n.d. , 123. 20 Al:ımad Ric;la Khan, !'lam al-A 'lam bi amıa Hi11dustti11 Dar al-Is/tim, I:Iasani

Press, Bareilly 1988, 2. The fatwa was originally prepared in the 1880s but repub­lished in 1920, perhaps in an attempt to check the Hijrah Movement and the large m.igrations towards Afghanistan. Mawlana Al:unad Ric;la Khan's biographer, Usha SanyaJ, nores that as a consequence of his opposition ro jibad aga,inst the British, bijrat(em.igration) from lndia, and the popular Khilafat Movement, as weU as his opinion char there was no religious justifıcation for taking an anti-British stand, Khan "was challenged by 'ulama from other movements, who accused him of being pro-British .... " She la ter explains, "Despite the anti-British sentiment among Indian .Muslims at th.is time, be continued ro insist tl~at the fundamental sbar'i sta­tus of the country had nor changed. There was thus no justifıcation for either jihad or hijrac." Usha Sanyal, Abmad Riza Kban Barelwi: Jıı tbe Patb of tbe Propbet,

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line of reasoning both BarelwI and Laknawi provide, however, seems co indicace chat Abü I:Ianifah's opinion applied to merely the application of some Islamic rulings, while most jurists underscood the condition to refer to the unrestricted ability to apply any and all Islamic laws, even if such laws are never applied by even a Muslin1 ruler.

A number of prominent Ahl-i I:Iadith (non-1?ııtqallid) scholars like Mawlana Nadhir I:Iusayn Dihlawi cı220-1320/ıso6-1903), Khwaja I)iya )al-Din Ab.mad, and Mubammad Qutb al-Din21 si.milarly argued that India was stili Dar al-Islam.22 <Allamah ShiblI Nu<mani (1275-1332/1857-1914), the celebrated Indian hist~rian, offered a unique historical argument co establish India as Dar al-Islam: He noted that when the polytheist Tatars occupied Iran and Iraq they did not prohibit Muslims froın offering daily pra yers or keeping the fast, as a result of which ehe jurists continued to consider such lands Dar al-Islam. Since Christians were People of Scripture (Ahi al-Kittib) instead of polytheists,

Oneworld Publications, Oxford 2005, 77-83. 21 Other Ahi :ıl-I:Iadith scholars such as I:Iusayn A])mad Batalwi (1256-1338/ca.1840-

1920) and Thiinii Allah Amricsari (1285-1367 /1869-1948) proposed instead that In­dia was neither Dar al-I:Iarb nor Dar al-Islam but instead a Dar al-Aman (domain of guaranteed security). See Mut:ıammad I:Iusayn Batalwi, al-Iqtişiid fi .Masa>il al-Ji­had, II, Viccoria Press, Lahore 1876, 19. Reanalysis of the traditional bifurcation of the world inco only cwo donıains has grown more popular in recent tin1es and appears to have found advocates across Indian academic craditions. Sa<id A1)mad al-Akbarabadi (1908-1985), for example, the Deobandi scholar and former Dean of the Faculty ofTheology at Aligarh Muslin1 University, concluded that classical defınitions of domains could not apply ·co modem lndian. He even rejected the idea that India could be considered a Dar al-Aman. Instead he called the secular stace of post-colonial lndia a Dar al-Watan al-Qawmi for Indian .Muslims. See Sa 'id Al:ımad Akbarabadi, Hindıısttln kf Sbar'f Jfaytbiyyat, Aligarh Muslim University Press, Aligarh 1968, 96. See also other views in support of India as a Dar al-Aman and as an independent, third cype of domain in the writings of Mawlana Khalid Sayf"AIJah Ral:ımani, Mawlana 'Abd al-Ral:ıim Qasimi, .Mawlana 'Ubayd Allah As'adi, and others in Mujahid al-Islam Qasinü, fadfd Fiqb'i Mabc1~ıilb, il, Idarat al-Qur'an wa-1-'Ulüm al-Islamiyyah, Karachi 2009, 198-514.

22 Sayyid Nadhir I:Iusayn, Fatawtt Nadbiriyyab, Il, Delhi Printing Works, Delhi, n.d., 37-38.

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he argued, it would be even more appropriate co consider British India the same.23

Amongst ehe scholars of the Deobandi tradition, it was ehe polymath Mawlana Ashraf 'Ali Thanwi (1280-1362/1863-1943) who is mosc recognized for his hesitation in considering India Dar al-I;Iarb. Alehough in his Ta(ıdbir al-Ikbwan 'an al-Riba. )fi al-Hindustan, Thanwi adopted the view that India was Dar al-I:Iarb but thar interest-based contracts therein were only legally valid and stili morally abhorrent, in Rafi' al-l)ank 'an Manti.fi' al-Bank, a later treatise, he rescinded this position in favor of one that ~stablished doubt in the classification of India as Dar al-I:Iarb and gave preference to Abü Yüsufs fatwa of impermissibility of riba in Dar al-I;Iarb.24

'· Mawlana Thanwl's elder and mentor, Mawlana Rashid AJ.:ımı;ıd

Gangohi, however, was vehement in his assertion that lndia was indisputably Dar al-I:Iarb. In his treatise on ehe subjecc, Fayşalat al­A <fam, he writes:

Firsr, il musr _be undersrood that considering any land Dar al­Islam or Dar al-I:Iarb pivots on the idea that either the Muslims or the non-Muslims have authority (gba/abab) therein. On rhis basis, any city in which the government is under the '(the authority of) Musligıs is called Dar al-Isİam, as is mentioned in ]timi' al-Rumüz: "Dar al-Islam refers to where the rule of the leader of the Muslims is applied and where the Muslims are therein in a state of security. Dar al-I:Jarb refers to where they live in fear of the non-Muslims."... Otherwise, one may not label a place Dar al-Islam purely based on the idea thar Muslims reside therein and are able to observe the distinctive Islamic practices (sba'ti'ir isltimiyyab) with the permission of non­Muslims, since there is no consideration fara nation purely on

23 Shibli Nu'manI, Maqtilclt Sbiblf; Il, Matba'ah Ma'arif,,Azamgarh 165 ,1927. 24 Ashraf 'Ali Thanwi, Jıııdad al-Fattiwti, ill, Maktabah Dar al-'Ulüm Kariichi, Kara­

chi 2004, 155-160.

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the basis of Muslims fesiding tlıere and observing tbe distinctive Islamic practices through the perrnission of non-Muslims. Similarly, fof a place to become occupied by non-Muslims, Of for tlıem to observe their distinctive non-Muslim pfactices with the perrnission of the Muslims, Of fof them to make them public in their obliviousness will make no difference in the nation being considered Dar al-Islam, as in both cases the autbority and dominance of such people is absent. Consideration is on the basis of dominance (.ghalabah), not on mere presence (wujüd) or appearance C+uhü.1}2;

To Mawlana GangohI, ignoring the consideration of dominance would result in what he considered an erroneous and outlandish conclusion that any councry in which some Muslims enter, reside, or observe Islamic practices - even France, Russia, Germany, or the entire world for that matter- could be Dar al-Islam.26 Therefore, upon concluding a detailed exposition of the three I:Ianafi imams' views on tl1e conditions for the transfer of domains mentioned by Shah 'Abd al­'Aziz, Gangohi concluded that the intent of all tl1ree of Abü I:fanifah's conditions and his two Companions' single condition was enough to establish witho.ut doubt the central and pivotal condition that one nation had established dominance (gbalabab) and authority (quwwab)

over the other.27

2; Rashid AJ:ımad Gangoh.I, Ta'lifiit Rasbidiyyab, Idarah Islamiyyac, Lahore 1412/1992, 6;3.6;9.

26 Ibid., 6;9. 27 In the case of India, he stated, the sttength of non-Muslim authority was unques­

tionable. If even a minor non-Muslim govemment offıcial decided ro place re­strictions on attendance of the masjids, no rich or poor Muslim would be able ro oppose it, he contended. The ability of Muslims co :ınend the Jumu'ah and 'İd prayers or their ability ro obseıve cerıain Islamic practices was not by virrue of their authority bur through permission granted by laws laid our by non-Muslim rulers which granced the individual onJy a cenain degree of religious freedom. No trace of the security and safety ooce granced by Muslim rulers remained. Instead, Muslirns and non-Musliros in India· were living under a new protection granted by the British. Additionally, he asserted that the condition of not being adjacem

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Contentions on Financial Interest in Dar al-~arb

Although Mawlana GangohI wenr ro great lengths in Fayşa/at al-A <fam co argue that India was Dar al-I:Iarb, he did not follow the discussion with remarks on the issue of financial interest (riba) therein. Compare this to Shah 'Abd al-'Aziz's fatwas in which most discussions of Dar al-I:Iarb imrnediately accompany a treatment of the issue of fınancial interesc. In his facwa mentioned above, for example, Shah 'Abd al-'Aziz's discussion of the conditions for ehe transfer ofa land to Dar al-I:Iarb is simply a preface for his. response to an enquiry into the application of the ruling of pennissibility of financial interest in India to both giving money in interesc'as well as to receiving it, co which he replied:

The books of Islamic law are general in their phrasing, hence . inclusive (in their declaration of permissibiliry) of both t110se who give and receive wealth in interest. For example: "There is no riba between a Muslim anda resident of Dar al-I:Iarb 01arbf) in Dar al-I:Iarb." QaçH Thana Allah Şal:Ub Panipatfi has penned an explanation for the permissibiliry of paying riba ip a treatise of his, though this mendicant (faqM does, not recall it at t11e moment. However, it is evident that receiving interest from a non-Muslim residenc of Dar al-l:farb (kafir !Jqrbt) is lawful. The reason is that a kafir barqi's wealth is mııba{1 (legally unprotected) provided thac in ehe acquisition ofthe kafir l)arbi's wealth there is no possibiliry ofa breach of covenanr. In otl1er words, ehere must be no dealing in which such a kafır barbi has made a covenant with the Muslims that his wealth and the like will not be acquired through impermissible means, since under such circumstances ehe acquisition of a ka~ir barbi's wealeh in an impermissible manner entails ehe (universally unlawful) breach ofa covenant. Hence, ifa kafir barbI is hinlself

to Dar al-Islam did not apply to larger nations but rııther smaller cities and cowns where it was hoped that proximity to Dar al-Islam could allow for the arrival of . assisıance from Muslim rulers.

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volumarily offering his wealth in interesc, such wealth will _be incontrovertibly lawful.28

Shah 'Abd al-'A?Iz further added that giving a kafü barbI money in interest is similarly permissible, as the consumption of fınancial interest is only unlawful for Muslims, not the kafir J:ıarbl. In giving them interest, a_ Muslim is simply serving as a me~s for the acquisition of what is already lawful to them. If one were to question why then are non-Muslims prohibited from interest in Dar al-Islam, the Shah explains tlıat in the case of the kafir dhinınıi (a non-Muslim resident of Dar al-Islam living under the protection of Muşlim) financial interest is unlawful for them because of the fear of the popularization of interest­based dealings in Dar al-Islam, not because non-Muslims are prohibited from interest in Dar al-I:Iarb.29

Yet, despite his arguments in favor of permissibility, Shah 'Abd al-'Aziz offered a crucial warning. Advising Muslims to exercise precaution on issues of financial interest, he clearly stated that Muslims "should not unnecessarily give money in interest to a katır l:ıarbI". 30

Jie also appeared apprehensive that broad Muslim engagement in interesc-based cransactions would negatively affect the community's identification with distinctive Islamic practices, due to which he reminded Muslims that the Jumu'ah prayer in Dar al-I:Iarb is stili valid if a Muslim ruler Oıakinı) is appointed there by the non-Muslim government. In dıe absence of such an appointment, he stated, the Muslim corrununity must themselves appoint a crustworthy and upright Muslim leader so that the Jumu 'ah and two 'İd prayers are offered in his presence, despite dıe inability of such a leader to exercise any political autlıority. In case such a leader is not appointed by eitlıer the non-

28 Shah <Abd aJ-<Aziz. Fattiwii 'Azizi, H.M. Saeed Coınpany, Karachi 1408, 581-582. 29 lbid., 581-582. The Shiih adds chac even in Dar al-Islam, scholars can permit Mus­

lims co give wealch in interest in cases of compulsion and extreme necessity. 30 lbid., 581-582.

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Muslims or the Muslim cornmunity, he advised, the Jumu<ah prayer should be performed regardless, -al.though for the sake of caution one should perform four cycles (raka<at) of the obligatory Zuhr prayer afterwards. 31

Shah <Abd al-<Aziz's warning is revealing. It demonstrates not only his concern for the preservation of Muslim identity but also, more importantly, a willingness to publidze the view of permissibility of financial interest despite his recognition of the broader implications and potential dangers of declaring India Dar al-I:farb. 32 Nc:>t ali of the scholars of the following two centuıies, ~owever, even when they agreed with his position, shared this willingness. Mawlana Gangohi, for example, clearly preferred restraint when it came to the issue of interest. In some

. ' of his fatwas, GangohI explicitly prohibited de~ling in interest in India

31 lbid., 582-583. Shah <Abd al-'Aziz again cites here al-Fatawa <rffamgfriyyab, this tiıne from the ChaRter on the Jumu'ah Prayer: "In nations in which non-Muslims rulers ha ve authority, it is pemlissible for Muslirns to establish the Jumu'ah prayer anda judge (qaçlf) may become a judge by the mutual approval of the Muslims. It is also obligatory upon them to request a Muslirn prefect/govemor (walt). See also Mi'rtij al-Dirayab." Interestingly, unlike Shah <Abd al«Aziz, I:IajI'stiarI'at Allah in the Bengal asserted that in the absence of an independent Muslirn ruler, Muslims are not permitted to hold the congregationhl Jumu'ah a.n.d 'İd prayers, as they have lost the privilege to do so. See Moin~ddin Ahmad Khan, Muslim Strugglefor Freedom in Bengal, Islamic Foundation, Dacca 1960, 19-20. See also Mohammad Abdullah, Some Muslim Sta/ıva11s, Islaınic Foundation, Dacca 1980, 24.

32 Remarking on the many legal repercussions of Dar al-l;iarb, the !ate MuftI Mubam­mad Shafı' 'UthmanI writes: "It is manifest to anyone occupied in the discourse of Tslamic Jaw (fiqb) and legal rulings (fatwa) that in nearly every chapter of Is­lamic Jaw - ritual prayer (şalat), fasting (şawm), pilgrirnage (IJajj), charity (zaktit), marriage (nikti/J), divorce (falaq), and particularly purchase a~d sale (bay' wa sbira/), rental (ijarab), and other such financial dealings - hundreds of scenarios exist in which the legal ruling differs between a Dar .al-Islam and Dar al-}:Iarb. If one were to daim that a considerable amount of rulings in the sharl'ah revolve around the stipulation of a state as Dar al-Islam or Dar al-}:Iarb they would be correct". See Fayşalat al-A 'fam fi Dar al-Jfarb ıva Dar al-Jslam Rashid Al)mad Gangohi with the preface of MuftI MuI:ıanunad Shafı< 'UthmanI, printed in Ta'/ifat _ Rasbidiyyab, Idarah Islamiyyat, Lahore 1412/1992, 654.

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with non-Muslims, though these writings likely proceeded his. treatise Fayşalat al-A <fanı as they are found close to an undated fatwa on the Dar al-I:Iarb issue in which he hesitated to give an answer because he did "not yet have much research on the status of India. "33 Moreover, I:Iusayn Abmad MadanI claimed that Mawlana Gangohi's view was actually of perrnissibility but tbat he did not publicize his opinion in view of the public interest. In a letter to a Mawlana 'Abd al-I:Iaqq MadanI, he once wrote:

There is no doubt that India is Dar al-I:Iarb, although I:Iac;lrat Mawlana (MuJ:ıammad Qaşim) Nan~twi, may Allah the Magnifıcent sanctify his secret, was of the opinion that it is only permissible for ehe residents of Muslim nations co enter India and acquire the wealth of IJarbfs through financial interest, gambling, and other such (transactions) in which there is mutual consent and no breach of contract. As for the residents of India, the same (he claims) is not permined for ehem. He does not believe that this was the intent of the legal texts, and he also has a treatise on the issue. As for Mawlana (Rashid AJ:ımad) Gangohi, may Allah the Magnificent sanctify his secret, he believes that it is also permissible for the Muslim residents of India to receive (money in interest) from the British and Hindus, except that he did not propagate this fatwa in d1e interest of the procection of the laity (<aıvamm).34

MawlanaMadanihimselfwa~infavoroftheviewofperrnissibility,

yet he also had reservations. He did.believe that because many Indian banks were owned and controlled by European non-Muslims who spent much of their acquired profits in support of Christian missionary work, not accepting wealth accrued through interest from them would entail a significant hamı to the Muslim community. In facr, he claimed

33 GangohI, Ta </ifat Rashidiyyah, 4. 34 I:fusayn Al)mad Madarü, illfaktabdt Shaykb al-Is/dm, cornpiled by Mawlana Najm

al-Din Işlal:ü, Majlis Yadqar Shaykh al-Islam, Karachi 1994, 28.

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that Islamic legal experts had ruled that it was necessaıy for Muslims to take such interest money and then to either spend it as charity on impoverished Muslims or to utilize it elsewhere. in any case, he stated, it is preferable to cast the money into the sea than to allow it to remain in the banks.35 Yet when it came to taking interest money from Hindus, Madam stated that the <ulama were stili undecided on the issue. They feared that in the case of Indian non-Muslims, circulating a fatwa of permissibility would lead to the popularization of interest­based transactions becween Muslims more than between Muslims and non-Muslims. The common Indian Muslim, he contended, is poor and often in need of taking loans whi\e Hindus are generally more wealthy and less in need of thein. If a fatwa of permissibility becomes popular, he feared, irreligious Muslims will take advantage of the sus!-=eptible financial position of fellow Muslims and acquire interest-based profits from them as well.36 MadanI therefore understood it to be wiser ''to advise .Muslims to understand financial interest in all its forms to be prohibited and to be-restrictive in their spending to avoid loans in the first place. He advised them not to assist ehe enemies of their nation by giving them profits through their wealth. 37

\

Mawlana MadanI's contemporaıy, <Allamah Anwar Shah Kashmiri held a similar view on the issue of both Dar al-I:Iarb and financial interest. in 1349 AH, his studeht Mawlana Al:ımad Riçla Bijnori asked him candidly: "If Hindustan is Dar al-I:Iarb, is it then permissible to receive money in interest from non-Muslims?" KashmlrI repli~d, "it is permissible". Bijnori then asked, "Is the money attained through means

35 Mawlana Madaru was of the opinion that India was Dar al-I:Iarb. He states: •a country is considered Dar al-Islam noc on the basis of even majoıiry Muslim res­idency but racher on the basis of the respeccable position of Muslims residing in the land and of their laws." See l;lusayn Al:ımad Madarü, Naqsb Jfaypt, U, Sayyid AJ:ımad As'ad Publishers, Deoband 1954, 11.

36 The l;lanafi position of per~ssibiliry of fınancial inceresc in Dar al-l;larb is restricted to transactions between Muslims and non-Muslims, not .Muslims and other Muslinıs or even dbimmis. ·

37 Madarü, Nlaktlibdt Sbaykb al-Jsliim, 28.

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of imperfect (jtisid) transactions pemıissible?" He replied, "Yes. Not only are imperfect (jasid) transactions permissible but invalid. (btipil)

transactions as well, although fatwa is not given on this because it is feared that people will no longer recognize that financial interest is unlawful in the sbarı<a/J. "38

On the exact legal status of Indian Muslims, however, Kashmiri's position differs slightly from Madani. Mawlana ·Madani considered India's Muslims and Hindus collectively to be under the ruling of captives (ası1=;ı and hence ali wealth possessed by their captors to be nıubal1, as tl1e classical I:Ianafi definition ofa c~ptive (ası1=.> applied to anyone not under an explicit covenant of protection (mu<abid) and Indians enjoyed no such covenant.39 <Allamah KaslimirI, however, felt that Indian Muslims were not truly under the nıling of captives. Although they had not agreed to an explicit ([wqfqi) covenant of procection with the non-Muslim government, in practice there was the outward appearance of one, evidenced by the fact that Muslims referred to the government in cases of dispute over property, wealth, and life, and sought assistance in legal matters. This, in his view, was a form of implicit (l1uknıi) covenant.40

38 Anwar Shah Kashmiri, ilt/a/fıi:ftlf MufJadditb Kasbmiri, compiled by Mawlana Al:ı­mad Riçla Bijnori, Idarah Ta'lifac Ashrafıyyah, Multan 1431, 156-175.

39 Madani, 1Vlaktubtıf Sbaykb al-islam, 69. 40 Kashrniri clarified, however, that the concepc of an implicic covenant was his per­

sonal conclusion and not something the juriscs explicitly transmitted in the legal manuals. See his commencs on the ruling of prisoners (asiı~ transcribed from a lecture he delivered on Şab~b al-Bukbtiri in 1351/1932 in Anwar Shah Kashrniri, JltJa!frı:?til Mu(ıadditb Kasbıniri, 157. He relates there an interescing incidenr from t11e time of Shlih Is[Jaq Mul)addit11 Dihlawi (1195-1261/1781-1845), when the J'vlughal Emperor stili retained a tbrone but the East Indian Company effeClively govemed India. The 'ulama of the time had prepared a facwa co proclain1 India a Dar al-I:Iarb which Shah Isl:ıaq had alsa signed. A year lacer, some 'ulama began preparing a councer-fatwa co declare India Dar al-Islam in fear of the accusation of a breach of covenanc (mıı'tlbadab). Shal:ı Jsl)aq severely refuced this attempt and stated, "What has happened co t11e 'ulama mat has led them to say such t11ings! There is no covenant (mu'abadah) or any such thing here! People here are cap­tives. There has been no new covenant. .. "

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KashmirI did adrnit that the implicit covenant was limited in its scope. Though Muslims had once enjoyed an implicit protection of both wealth and life, in his time the implicit protection of life was no longer enjoyed by Muslims. Stil!, Kashrrüri argued, the implicit protection of wealth at the Jeast made theft of the barbi's wealth imperrnissible, and though acquiring a non-Muslims wealth through conventionally legal means was perrnissible, Muslims had to be careful to abstain from not only any illegal dealings but also any dealings in which the honor and dignity of Islam would be tamished.

Still, how could one justify a restrictive understanding of the explicit unlawfulness of financial lnterest in the Qur'an? On what basis did the I:Ianafis differentiate between the ruling on financial interest in different lands? According to Mawlana BijnorI, justification 'resided in the verse Q 4:92: But it is not [lawfull fora believer to kill a believeı~ unless it be by mistake. Tbus, wboever kills a believer by mistake, tben [the atonenıent} shall _be tbe jreeing ofa believing bımıan being ([rom bondagel, and compensation submitted to bis familjı - unless they renıit it asa charitable offering. But if tbe one !killed] is from a people wbo are an enemy to you, and be was a believeı~ '-tben [tbe atonenıent] shall be the jreeing ofa belieuing hımıan ~eing (fronı bondage only] .... The verse clearly differenti:ıtes between the conseqU:ences of killing between two domains, implying that when a Muslim kills a Muslim who is a resident of Dar al-I:Iarb and has not emigrated to Dar al-Islam, there is no atonement or compensation (ka.ffarah or diyyab) due upon the killer, as opposed to the case of killing a believer who resides in Dar al­Islam. To thoroughly understand this difference in nıling, Bijnori states, one must understand the concept of 'işmab (protection) in Islamic law: that although human life is universally protected (ma'şfmı), protection ( 'işmab) is of two categories: (1) 'işmab mıı't/J.imah, or protection the· violation of which is sinful, an~ (2) 'isnıah muqawwimah, or protection the violation of which is both sinful and legally punishable. The first

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type of protection, 'i.şmab nııı'thimab, is a right acquired upon merely accepting Islam, while the second type, 'işmab nıııqawwinıah, is a right that requires the power and authority of a Muslim government, Le. a Dar al-Islam.41

Mawlana Bijnori, just like Mawlana z;afar Al:ımad <Uthmani42

41 Ibid., 159. Bijnori's discussion is rich in both providing Kashmiri's legal positions and reasoning but also in darifying a great nurnber of rnisconceptions. He denies an association of the perrnissibility of fınancial interest with the assumption that non-dbiııımi non-Muslims' lives are mubttl; (legally unprotected). He also reflects on the erroneous conclusion that the outward label Dar al-l:farb necessicates a state of perpecual hostility between its Muslim and non-Musl~ residents, as well as the misconception that Muslims are obligated to emigrate from Dar al-l:Iarb and not perrnitted to reside there for more than two years. Finally, he argues against the concept of Dar al-Aman asa third domain berween Dar al-J:Iarb and Dar al-Is­Jam, clairning it to have no clear precedent in the classical legal texts. Instead, he asserts (1) Dar al-Aman and (2) Dar al-Khawf as two subcategories of Dar al-I:Iarb, the former referring to where non-Muslirns hold authority but Muslirns enjoy security and protection of life and property and the laner referring to Jands where such security and protection was absent.

42 'Uthmani provides a detailed defense of the perrnissibility position through vari­ous Qur'anic proofs and l:ıadith proofs in his /'la al-Sunan. In his conclusion, he states: "In summary, the opinion of Abu l:fanifah and Mul)arnmad on the issue is both stronger in terms of transmitted and intelleccual proof (riwtlyab wa dirayab), and is not built on the mursal (expedited narration) of MakJ:ıul alone as most scholars and authors assume. Rather, it is built on numerous strong evidences that are clear in their import assuming the authenticity of what they (are reported to have) said. It also has precedent in the opinion oflbrahirn al-Nakha'i and his per­mitting riba in Dar al-J:Iarb and Ibn 'Abbas, may Allah be well-pleased with thern both, in his perrnitting riba between a bondsman and his master. Additionally, Su­fyan al-Thawri agrees with it, and had the opinion not been established by badith proof and the opinions of Companions and Followers he would certainl y not ha ve concurred ever with the ruling (of perrnissibility). Despite all ı:hat, there can be no doubt that abstainlı)g from riba even with a f:ıarbi in Dar al-J.:iarb is more excellent, more pre-cautious, more pure, and more appropriate as it avoids ı:he difference of opinion, and it is also ı:he opinion and fatwa of our shaykh J:Iakim al-Ummah, which he chose by preferring the opinion of Abu. Yusuf and the jıı.ıııbür ... " !'iti al-Sunan (Beirut: Dar al-Kucub al-'Ilrniyyah, 1997) 14:414. In his fatawa collec­tion, Imdtid al-Al;kam, however, apparently contradictory rulings can be found. In some fatwas, 'UthmanI perrnits caking interest yet clari.fies that Mawlana Than-

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(1310-1394/1892-1974) and Mawlana I:Iusayn Al)mad Madani, strongly argues in favor of the dominant opinion of the I:Ianafi madbhab: the permissibility of financial interest in Dar al-I:Iarb, and yel like ehem also simultaneously acknowledges a strong precaution exercised by their elders (aktibi?J on the matter. Both BijnorI and <Uthmaru note that

. some of their elders chose to give preference (tmji/J) to the view of Abü Yüsuf out of precaution and God-consciousness, and out ofa fear thar the sharI<ah woulcl become deprecated or forgotten otherwise. BijnorI claimed that under normal circumstances many 'ulama did not permit interest-based transactions, lotteries, or insurance policies for Muslims, especially when it inv<?lved occupations, and in special circumscances when they gave perm.ission they stili n.ıl~d it more appr<?priate to spend the profits accrued on impover.ished Muslims or on establishing collective charitable funds (bayt al-nıti[) in majör population centers.~3

It is notewoıthy in the writ.ings of scholars like Madarü, Bijnori, 'Uthmfuıi, and Mawlana Mana?ir Al:ısan Gilarü that the vulnerable condition of Musl.ims living in non-Muslim lancls was at the forefront of their minds. Wh.ile exploring the is_sue of India as Dar al-I:Iarb and the issue ?f fınancial interest, they strongly considered the momentous ldss of wealth, property, financial strength, and political authority that had characterized. colonial nıle. After 1857, Bijnori rerninds us, the f!r.itish held special resentrnent for the Muslims. Their life, prôperty, and wealth were constantly in danger and when they suffered great losses to life, residence, or business, ehe government ·d.id not provide rel.ief. In such a climate, scholars struggled with the tension between precautionary fatwas that prioritized religious­identity considerations and between facilitative fatwas tl1at prioritized

wi's position was of impem1issibility. In od1er places, he gives the ruling of im­pemlissibility and refers me enquirer to Thamvi's fawa for more detail. See Zafar Al:ımad <UrhmanI, lmdad al-Afıktim, III, Maktabah Dar al-'Ulüm KarachI, Karachi 2005, 468-487.

43 KashmirI, ılr/a!fiı+tttJ'rlu~ıaddilb Kasbmiri, 170-172.

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considerations of economic and political strength.44

Ashraf 'All Thanwi's Arguınent for Prohibition of Financial Interest

Mawlana Ashraf <AlI ThanwI was one such scholar who, using both legal considerations as well as those of precaution, religious identity, and piety, preferred an outrighe ruling-of ·impermissibility, doing so by giving legal preference (tarji/J) to ehe position of Abü Yüsuf, Malik (93-179/712-795), al-Shafi<I (150-204/767-820), and Al:ımad (164-241/780-855) over that of Abü I:Iarufah and Mubammad on ehe strength of various proofs and prihciples. The arguments for his tmjf~J are provided in his Rafi< al-l)ank <an Masti.)il al-Banlt5, a concise work thae opens with seven key prefaces. In the first preface, he cites Durr al-Mukbtti.r to establish the validity of tmjih (preferring an opinion of the imams of the madhhab when they differed with one another) on the basis of the strength of evidence, on the condition thae the scholar giving preference possesses ehe capability to underseand the serength of legal arguments. In the second preface, he reminds readers thae the issue of financial interest between Muslims and barbi non­Muslims is one in which the imams of the I:Ianafi madhhab differ. The third preface quoees the legal maxim that "assiscance in sin is also asin". in the fourth preface, ThanwI asserts that many legal rulings are built

44 Ibid.,166-172. it was a resule of these tenşions that only limited dispensations were issued over the years by various academic and legal bodies, as in the case of the Majlis Tal:ıqiqat Shar'iyy~h of the Nadwat al-'Ulama in Lucknow, which pre­ferred to utilize the. dispensations allowed in a Dar al-I:Iarb and permit insurance policies in special circumstances. Mawlana Man~ür Nu'miini's exposition of the background, reasoning, and causes for the ruling can be found in the daily paper Da'wat dated 10 February 1966. More clarifıcation on Anwar Shah Kashmiri's po­sition can be found also in Bijnori's Anwar al-BciriXVl/145 and Kashmirrs al-'Aıf al-Sbadbf 303, 489, and 532.

45 The fatwa begins with a noce from the author clarifying that its coments represent his final opinion on the macter. Any other writings of his on the issue are to be considered rescinded.

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on the principle that it is necessary to abstain from the popularization of any statement or action that may become a means for another falling into sin when it is not ofa level of dire necessity (çlarürah). The fifth preface, an addendum to the fourth, asserts that it is necessary to av.oid situations that lead to suspicion and accusation. SL'dh, since there may be various effective causes of soınething's prohibition, the absence of one does not entail the absence of the others. Lastly, ThanwI clarifies that if someone abstains from what has been declared permissible in anı. earlier fatwa, their abstinence may not be construed as opposition to the author of the fatwa and is not equivalent to abstaining from an obligation or to corrunitting an act that is unlawful.

Mawlana Thanwi reminded readers that even Abü I:Ianifah and Mubammad pem1itted financial interest only conditionally: (1) the land had to be Dar al-I:Iarb, (2) the transaction had to be with a barbi, (3) the transaction could not be with either an aşlıMuslim (in other words, someone who accep_ted Islam before entering Dar al-I:Iarb, either himself or his forefathers) or a dhimrrü, and ( 4) the trafısaction had to be done between a Muslim who came from I)~r al-Islam.towards Dar al-I:Iarb with protectiôn (aman), or between then:ı anda Müslim who accepted Islam while in Dar al-I:Iarb, not~ aşli Muslim.46

Further, he argued for the strength Of Abü Yüsuf's opınıon on the basis of evidence. In Rafi< al-J)ank, he argues that the verse Q 2:278: O you who believe! Be ever God-jearing and jorsake alt that remains fronı usu1y, if, indeed, you are believers, was revealed when what renıains from usu1y referred to the interest transa eti ons of barbis. If dealing with barbis in interest had been permissible after the verse's revelation, why would Allah have demanded what remains fronı ııswy to be forsaken in the verse? The verse is a conclusive textual ·

46 This fınal condition, Thanwi admitted, he did not find explicitly in the legal texts but asserıs itS validity on the grounds that the implled meanings (maft1bim) of legal text transmissions are authoritative.

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proof botil in its establishment (thubut) and in its import (dala/ah), he argued, while tile evidence for Abü I:Ianifah and Mubammad was eitiler a khabr wtil;Jid text or analytical reasoning (qiytis), botil of which are probabilistic C+annt) evidences. In fact, tile haditil "There is no riba between a Muslim and a l)arbi", was probabilistic in import (dalalah) as well, as it stili carried the possibility of being interpreted not as a negation of riba but asa prohibition.47

Were one to accept the meaning Abü I:Ianifah and Mubammad understood from tile baditil, ThanwI reiterates tile preconditions for tileir opinion's applicability. First, India had to be Dar ~l-I:Iarb and many <ulama maintained that it was stili Dar al-Islam. Second, in Dar al-I:Iarb Muslims may end up transacting witil non-barbis, i.e. aşlI Muslims or dhimmis from the time the land was Dar al-Islam. Third, in a Muslim's dealings with a bank, if even some depositors are Muslim they become silent partners in the loan. Thus, interest-based dealings with banks do not guarantee that the transactions will be solely between a Muslim and a barbI and not between a Muslim and anotiler Muslim. Finally, Thanwi nored that in real life, people are generally careless about permissible and impermissible types of financial . transactions, let alone fulfilling all the necessary conditions for interest-based transactions to be permissible. Muslims, especially <ulama, are likely to be accused of permitting riba without any understanding of the nuances and conditions of permissibility.48

47 In other words, just as the Qur'an prohibits rafatb and fusüq during l:ıajj using the expression: And tbere is ~o rafatb 11orfusilq norjidal in (1ajj He says that the verse uses an expression of negation lo imply the legal ruling of prohibition. Hence, one can interpret the expression "there is no riba" in the l:ıadith as imply­ing that "riba İS not pennitted berween a Muslim anda l:ıarbi". This understanding of legal phtasing, he claims, is also applİcable to legal texrs where expressions like "la riba ittifaiqan" clearly mean "riba İS not permitted by agreement" instead of "riba is permissible by agreement" Here, Thanwi cites al-Dıtff al-Mııkbtdı· in the section immediately following the riba in dar al-l)arb dİscussion as well as al-Radd al-Mu(1tttrfrom the same chapter. föid., 158.

48 lbid., 159.

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As Mawlana Al)mad Riçla BijnorI points out, Mawlana Thanwi's position of prohibition was unique amongst his Deobandi contemporaries. Mawlana Manazir AI:ısan GilanI, in fact, purported that ThanwI was the only one of his teachers or elders to hold st,ıch a p osition.49 To his knowledge, even the BarelwI and BadayünI scholars' position was that of permissibility.50 ThanwI's position, however, did not remain unpopular. Many scholars of successive generations51

conct11Ted with his position and ta1ji{:ı. In fact, Mufti Mul:ıammad TaqI <UtlunanI (b. 1362/1943) asserts that "lıı this day, there is a near agreement amongst the I:IanafI <ulama on giving fatwa according to the p osition of Abü Yüsuf and the majority (jımıbü1J, that riba is unlawful in every circumstance;· regardless of whether the transaction is between a Muslim and a I:ı.arbI. It is not, therefore, appropriate to adhere to the position of Abü I:Ianifah and MuJ.:ı.amrnad, may Allah Alrnighty h~ve mercy on them, on this issue. "52

Manazir A.l;isan Giliini's Arguments for Permissibility of Financial Interest

Mawlana Gilfuü, however, viewed tl1e positionofirhpermissibility as untenable, both intellectually and pragmatically. After citing several legal texts, such as BadtVi' al-ŞantPi<, Radd al-Jl!Iu!Jtti.1~ and Fatawa

<Afamgfriyyah, to establish that India had become Dar al-I:Iarb simply on the prernise of havinglostMuslim political autl1ority, GilanI criticizes the hesitation of those who declare India Dar al-Islam due to a failure

49 Bijnori, the compiler of the malfii~titof Kaslmüri, also transmits Mawlana Mul:ıam­mad Zakariyya ibn Yal:ıya Kandhalwi's (1315-1402/1898-1982) coıuments from J\llaktıibtit 'l/nıiyyab p. 101 that: "according to my elders, financial interest deal­ings with non-Muslims is pennissible in Dar al-l;larb ". See Ma/fii:?tit Mu~ıadditb Kasbmfrf, 172.

50 Mana?ir AJ:ısm GilanI, Mas'a/ab Süd aıır Dar al-f:lqrb, 275. 51 Including MuftI Rashid ~ad LudhyanwI (1340-1423/1922-2002). See Alısan al­

Fattiwti, VII, H.M. Saeed Conipany, Karaclıi 1425, 40-21. 52 See Mul:ıammad Taqi 'Utlm1ani, Fiqb al-Buyü', II, Maktabah Ma'arif al-Qur'an,

Karaclıi 2014, 770-771.

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OSMANLI'DA İLM-İ FIKIH: Al.iı\<ILER, ESERLER, .MESELELER

to comprehend that Dar al-I:Iarb does not lınply perpetual hostility between its Muslim and non-Muslim residents. Muslims are allowed to remain musta 'nıins religiously obliged to resist hostility due to eheir binding covenant wieh the government.

Gilaru did adınit that the jurists' use of ehe term "l)arb" could be a cause of._confusion and thus suggests inste~~ to use the term "Dar al-Kufr" as 'Ala al-Din al-Kasaru (d. 587/1191) does in BadtFi' al­ŞancPi'. Regardless, he insisted, it is undeniably the position of Abü I:Ianifah and Mul1ammad that "when a Muslim enters Dar al-I:Iarb with quarter (aman), there is no harın in ehe acq_uisition of their wealth, in any possible manner, with their approval, since he i.s but acquiring that which is muba(J in a manner that is free from treachery (ghad1J." 53

When neither the sharl'ah nor India's current laws consider such transactions illegal, he exclaimed, how can we make illegal the legal and (Jaram that which is Islarnically (ıala/?!54

To substantiate the lawfulness of interest in Dar al-l:farb, Gilani cited the wager of Abü Bakr (may Allah be well-pleased with l1in1) with the disbelievers of Makkah. In the wager, certain Makkan disbelievers agreed to give one hundred camels to Abü Bakr if the Romans were victorious over their Persian enernies. When ehe prophesy of Roman victoıy came true years later, Makkah was stili Dar al-I:Iarb. That the Messenger of Allah (may Allah .bless l1in1 and grant him peace) instructed Abü Bakr to accept ehe payınent of camels and retrieve ehem from the heirs of those non-Muslims who had agreed to the wager proves that fasid transactions were perrnissible in Dar al-I:Iarb, as the wager technically qualified as gambling (qi11ui1J. 55

53 Gllaru, Mas'alab Süel aıır Dtir al-Jfaıb, 244-245, quoting from Mul:ıammad b. al­I:Iasan al-Shaybani's al-Siyar al-Kabir as transın.ineci by 'Ibn 'Abidin in Radd al­Mu(1ttiı; IV, 21.

54 Ibid., 244-245. 55 Ibid., 247.

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CONTENTIONS OF INDIAN HANAFI SCHOLARS ON TIIE PERlvfiSSIBILITY OF FINAı~CIAL INTEREST lN POST-MUGHAL INDIA / B. ALI

To Gilaru, the allowance for such transactions in Dar al-I;Iarb did not contradict the explicit Qur>anic prohibitions. Abü I;Ianifah and Mul)ammad simply viewed such transactions as outside the purview of riba and instead analogous to the ruling on spoils (fay9, i.e. wealth acquired in a manner illegal in Dar al-Islam but pure and lawful (tayyib)

in Dar al-I:Iarb.56 That some confused their view as a permission for "riba" is likely due to the wording of Makl:ıül's (d. 112/730) nııtrsal report which states "There is no ribti. between a l)arbI and a Muslirn", although GilanI did not understand how one could fail to derive the obvious ıneaning that "transactions between Muslims and non-dhimmi non-Muslims, if they are (outwprdly) interest-based, are not in fact riba. Instead, they are" in accordance with the Qur>anic principle of permissibility (iba(1ab), both pure (tayyib) and lawful 01altU)..,__" GilanI further argued that it was not, in fact, Makl:ıül's report that was the basis of the ruling of perınissibility but the import of clear Qur>anic tex:ts, as Ibn al-Humam (790-861/1388-1457) states: "The reality is that even if Makl:ıül's report was not transmitted, the aforement~oned reasoning (na:p"') alone would permit it."'7

To a great e.xtent, Mawlana Gilani's arguµıents expand on th~ reasoning beyon~ legal texts and logic an~ enter the realm of pragmatic argumentation. He viewed abstinence from the legal disp·ensation provided by the nıadbbab as a patlı to financial nıin. Only Muslims, he

I

56 Mawlana I:Iusayn A.lımad MadanI similarly clarifıes that Abü l:fanifah never actu-ally permitted riba. Rather, he did not consider financial imerest in Dar al-I:Iarb to

fall under the caregory of riba in the first place. 57 GilanI here cites Mubammad Ibn 'Abidin: "Wharever is acquired from them nor

through a srare war or subjugation but, say, during suspension of hostilities or a truce, will be neither boory (gbanimab) nor spoils (fayt;, bur its ruling will be that of fay<." Radd al-MufJtar, N, 25. Gilani also argues that because fınancial interest in non-Muslim Iands, especially that wlıich strengthens the Muslim communiry's presence and protects it from systematic repression, is not of the category of riba, the Islarnic code of etlıics is not in jeopardy and one needn't be afraid of accusa­tions of double standards.

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OSlVIANLI'DA İL\ıl-İ FIKIH: Af.İMLER, ESERLER, MESELELER

argued, will be hamıed by avoiding interest. Modem economic systems guarantee that those who do not avail of paths made available them by Allah will quickly find themselves "swallowed up by those other people who benefit from financial interest".58 Islam does not teach Muslims to adopt the impractical, he stated, or tum the other cheek by falling prey to international financial competition.

Conclİision

To conclude, Indian I:Ianafi legal discourse on the issue of financial interest in Dar al-I:Iarb was both expansive and diverse. Despite a clear disagreement on the various issues at play, primarily those of the India's status as a Dar al-I:Iarb and then the ruling of fınancial interest in such an abode, the depth of the discourse alone demonstrates the jurists' acute awareness of the political and socio­economic factors at play in India in their time. From the time of the firsc fatwa declaring India Dar al-I:Iarb by Shah <Abd ai-<Aziz, issues of socio-economic communal strength and religious identity were at the forefront of the <ulama's discussions, indicating the relevance of not only the legal discourse within traditional academic circles but their ability co apply it .to the modern context. These Indian jurists, rather than seek solutions from outside the traditional legal framework and body of legal nılings by redefining riba or advocating a "reform of the shari<ah", demonstrated through their rich and diverse discussions the permanent vitality of their classical kp.owledge.

It may also be argued from a review of the available literature on the topic that an opinion of considerable strength held by I:Ianafi scholars in post-Mughal India was of the permissibiliry of fınancial interest in India. The current popularity of the view of impermissibiliry in both India and in Indian I:Ianafi communities residing in non-Muslim lands outside the Indian subcontinent is likely due co factors other than

58 Ibid., 258-259.

455

the strength of the position of impermissibility or simply the number of jurists who espoused it.

It seems, therefore, useful to suggest that in light of the long­lasting and well-substantiated difference of opinion on the issue, as well as the dominance of the view of permissibility in the scholarly circles, it is prudent for scholars to present the issue at least as one of valid difference of opinion in the madhhab, especially given the strength of Abü I:Iarüfah and MulJ,arrunad's position. Even if scholars disagree with the view of perrnissibility or - following the lead of those who held such a view - do not popularize the view of pennissibility, their recognition of the positions of the aforementioned celebrated lndiat?- I:Ianafi jurists justifies a modification of the harsh lan~uage of condemnation that characterizes public discussions of riba in non­Muslim lands. In particular, scholars who reside in non-Muslim nations, such as Germany, France, England, or the United States, would benefıt from a richer and deeper understanding of the ful! array of opinions on the issue and should consider them fully before issuing rulings to individuals, especially those in situations of need or necessiry. Instead of continuing a discourse that creates a feeling of incompatibility between the faith of the laity and lheir eveıyday practice, scholars rnay seek out pragrnatic dispensations through reference to analogous discourses in ... post-Mughal India.

456