That al-Qarafi should concern himself with matters of government might appear at first blush to contradict the widely touted notion that medieval bursts were generally passive in their attitude towards power and the activities of the state. It is important, however, in attempting to assess al-Qarafi in this regard, to understand the precise nature of the political passivity in question. It has already been noted that no less a figure than the redoubtable Ibn Taymiyah could, on the one had, argue reverently in favour of the rule of law while, at the same time, showing virtually no concern whatever for such issues as whether the Imam came to power by legal or illegal means. This was based on the fact that, as E.I.J. Rosenthal has observed, Ibn Taymiyah’s centre of attention was not the caliphate of power at the top, but rather larger community and its relationship to the sacred law. As such, the khilafah or imamah as the battleground between the imam and amir or sultan remained largely outside the purview of his concern. In other words, promoting the rule of law in his view not at all contingent upon legitimate rule but rather on how successfully the ‘ulama’ could be brought into an effective role in government (used here in the broader sense). This is strikingly similar to what one finds in al-Qarafi, who, as noted earlier, shared with Ibn Taymiyah the fact that he belonged to a politically disadvantaged school and was not part of the establishment. This shared vantage-point contributed significantly, one suspects to the common features found in their legal-political thought. Indeed, their common tendency to deemphasised power at the top in favour of a greater emphasis on law and the community at large is perhaps not coincidental but reflective of a much a more widespread attitude, the attitude, as it were, of certain non-establishment ‘ulama’. This attitude, if we may safely speak of such, is distinct from that of establishment writers as Ibn Jama’ah, al-Mawardi or Abu Ya’la, all of whom served in government and were faced as such with question of the state’s legitimacy vis-a-vis other contenders. Non-establishment ulema, on the other hand, would tend, recognise more readily that formal legitimacy was itself a blunt instrument that would inevitably aid the state in its periodic attempts to blur the distinction between might and right. As such, they would incline away from the question of formal legitimacy toward that of function, i.e. what the state is supposed to do. Their attitude finds ample expression in the words of another North African Berber, this one a Christian, St. Augustine of Hippo (d. 430 C.E.).
As far as I can see, the distinction between the victors and vanquished has not the slightest importance for security, for moral standards, or even for human dignity …. As far as this mortal life is concerned … what does it matter under whose a rule a man lives, … provided that the rulers do not force him to impious or wicked acts.
In short, politics at the top was not al-Qarafi’s focal point. He appears in fact little concerned with the issue of formal legitimacy and who ruled or what his qualifications were. Nor was he concerned with establishing mechanisms for ensuring smooth and orderly transfers of power from one regime to the next. In this his attitude might be described as conspicuously passive. The issue, however, of how a ruler ruled was a different question. For, this had implications that reached deeper down into society affecting more directly that to which al-Qarafi belonged. Thus, we find in him a much more spirited attitude on the question of the state’s modality of rule. Here the issue becomes, again, defining the relationship between government and the community at large or more specifically, developing mechanisms to prevent the former from exercising a monopoly of law, over legal authority, such that it could legitimately impose policies, that, though, perhaps legal from the perspective of some, represented ‘impious and wicked acts’ in the eyes of others.
p. 70-1 – Islamic Law and the State, Sherman Jackson, 1996.