Law and Order According to Ibn Taymiyya and Ibn Qayyim al-Jawziyya 417
to inflict punishment. In particular, he states that a muḥtasib is allowed
to beat or imprison those who do not pray at the proper time or who
fail to respect other religious duties, such as the Friday prayer, group
prayer.^76 Nevertheless, he informs us in detail about different kinds of
fraud in Muslim society that necessitate the muḥtasib’s hard interven-
tion. Having dedicated his book to cases of litigation before a judge,
he found it out of place to give more attention to the subject of ḥisba, a
local executive institution that resolves conflicts between people with-
out trial.^77
The main issue raised by Ibn Taymiyya and Ibn al-Qayyim, as for-
mulated by An-Na’im, is the extent to which “any sharīʿa principle
that is enforced through the coercive authority of the state ceases to be
part of the normative system of Islam”.^78 In other words, could siyāsa
sharʿiyya be the bridge, so to speak, between the normative system of
Islam and the state? If that is possible, siyāsa sharʿiyya could be a sort
of positive law. Let us not forget that these coercive policies are, in the
first place, caliphal practices that were adopted as personal opinions
or ad hoc decisions. Though they have the legal legitimacy as norms
in the Sunni juridical schools, they originated in the practices, if not
in the customs of early Muslim communities. An-Na’im opposes this
possibility, asserting:
A principle or rule of sharīʿa, as the religious law of Islam, cannot become
positive law unless the legislative authority of the state. When so enforced
by the coercive authority of the state, however, that principle or rule ceas-
es to be religious, as its binding force becomes dependent on the political
authority of the state and not the moral authority of religion.^79The essence of An-Na’im’s point is based on the belief that coercion
and religion are by nature opposed to each other. Ibn Taymiyya and
Ibn al-Qayyim, however, were realists and defended the inseparability
of religion and coercion. Neither author perceives the state as an inher-
ently corrupted political form. Instead, Ibn Taymiyya defends the state
as one of the greatest religious duties: “Religion cannot be maintained
76 Ibid., pp. 627–628.
77 Ibid., p. 620.
78 An-Na’im, Abdullahi Ahmed: Shariʿa in the Secular State. A Paradox of Sepa-
ration and Conflation, in: Bearman et al., The Law Applied, pp. 321–341, here
p. 322.
79 Idem: Religion, the State and Constitutionalism in Islamic and Comparative
Perspectives, in: Drake Law Review 57 (2009), pp. 829–850, here p. 831.
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