Abstract
The concept of ‘restricting the permissible’ (taqyīd al-mubāḥ) (hereafter called RTP) refers to the ability of Muslim rulers to restrict acts that Islamic law permits to prevent a social harm and secure a public benefit. Since the late nineteenth century, this concept has been used to justify the state’s restriction of legally permissible acts such as slavery, polygyny, and child marriage. Its pervasiveness in the modern period raises a set of questions regarding the origins of the concept and the reasons for its growth. Despite these questions, no academic work has studied RTP’s origins and historical development. My paper identifies seventeenth-century Ottoman legal debate over the permissibility of tobacco as an early instance in which jurists discuss RTP.
The introduction of tobacco into the Ottoman Empire ca. 1600 provoked a series of reactions by political authorities, many of whom restricted the consumption of tobacco on the grounds that it caused public disorder. Many jurists issued legal opinions condemning the use of tobacco as a violation of the sharīʿā (hereinafter: prohibitionists) because of its subversion of social norms and harmfulness to the body. But others disagreed, accusing prohibitionists of overgeneralizing the harms of tobacco. In response, some prohibitionists contended that even if, for the sake of argument, one were to concede its permissibility, as some tobacco supporters claimed, smoking would remain prohibited due to the sultanic restriction. Their response sparked a new debate over the issues to which the sultan can apply RTP.
While a few tobacco supporters contended that prohibitionists did not understand the principle, I argue that neither group rejected the right of the ruler to RTP. This ‘misunderstanding’ was not a juridical disagreement over the concept itself. My findings show that the jurists agreed on the administrative privilege of the ruler to restrict the permissible but disagreed over whether the ban against tobacco was based on public good (maṣlaḥa) or if an accidental property could temporarily prohibit the performance of a permissible act. On the smoking issue, the Ottoman sultan recognized his administrative role. He made sure not to ignore the sharīʿa or work against it. Rather than establishing legal preponderance, the sultan framed tobacco consumption as a fire hazard that was of administrative concern. This paper sheds light on the diversity of juristic positions regarding the valid exercise of political power, the scope of the ruler’s legal jurisdiction, and the relationship between political and religious authorities.
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