General Rules
Article 1
The Islamic belief (‘Aqidah) constitutes the foundation of the state. Hence,
nothing is permitted to exist within its entity, its structure or its
accountability or any other aspect connected to it, unless the Islamic ‘Aqidah is its basis. At the
same time, the Islamic ‘Aqidah acts as the basis of the constitution and Shari’ah
laws; thus, nothing related to the constitution or to the laws is permitted to
exist unless it emanates from the Islamic ‘Aqidah.
The explanation and the clarification of the evidences
The state comes into being by the
emergence of new ideas upon which it is established. The authority (the
governing of people’s affairs and the management of their issues) in the state
changes when the new ideas change, since if these ideas turned into concepts
(i.e. if their meaning was perceived and their credibility was established),
they would influence man’s behaviour. This behaviour would then proceed
according to these concepts. Thus, man’s viewpoint about life changes, and
according to its change, his viewpoint towards the interests also changes. The
authority is simply the guardianship of these interests and the supervision of
their management; thus the viewpoint about life is the basis upon which the
state is built and it is the basis upon which the authority is established.
However, the viewpoint about life is generated by a specific thought about
life. Hence, this thought about life becomes the basis of the state and the
basis of the authority.
Since the specific
thought about life is embodied in a host of concepts, criteria and convictions,
this host of concepts, criteria and convictions is considered a basis. The
authority looks after peoples’ affairs and supervises the management of their
interests according to this host of concepts, criteria and convictions.
Therefore, the basis is a host of thoughts and not just one single idea. It is
this host of thoughts in its entirety that generated the viewpoint about life,
and consequently the viewpoint towards the interests was established and the
authority set about managing them according to this viewpoint. Therefore, the
state was defined as being an executi entity for a host of concepts, criteria
and convictions that a group of people had adopted.
This is regarding the
state from the fact that it is a state i.e. from the fact that this state is
the authority that looks after the interests of people and supervises the
management of these interests.
However, this host of
thoughts upon which the state is founded i.e. the host of concepts, criteria
and convictions could either be built upon a fundamental thought or not built
upon a fundamental thought. If it were built upon a fundamental thought, it
would be solidly built with strong pillars and a firm entity; since it would
rest upon a fundamental foundation. This is so because the fundamental thought
is the thought that has no other thought behind it, and that is the
intellectual ‘Aqidah. In such a case, the state would be built upon an
intellectual ‘Aqidah. On the other hand, if the state were not built
upon a fundamental thought, this would ease its destruction and it would not be
difficult to demolish its entity and then usurp its authority. This is because
it has not been built upon one intellectual ‘Aqidah upon which the state
was established. Therefore, it is essential that in order for the state to be a
strong entity, it must be established upon an intellectual ‘Aqidah from
which ideas that the state was founded upon emanate i.e. an intellectual ‘Aqidah
from which the host of
concepts, criteria and convictions that represent the idea of the state
regarding life emanate and consequently the viewpoint of this state towards
life and this is what produces its viewpoint towards the interests.
The Islamic State is
built solely upon the Islamic ‘Aqidah because the host of concepts,
criteria and convictions which the Ummah (collective of Muslims) has
adopted emanate solely from an intellectual ‘Aqidah. The Ummah
has first of all adopted this ‘Aqidah and embraced it as a conclusive ‘Aqidah
based on decisive evidence. Hence, this ‘Aqidah was its comprehensive
idea about life and accordingly its viewpoint about life was shaped and based
upon it and its viewpoint towards the interests was derived from it. The Ummah
also took the host of concepts, criteria and convictions from it and therefore
the Islamic ‘Aqidah is the basis of the Islamic State.
Additionally, the
Messenger of Allah
established the Islamic State upon a specific
basis; therefore this very basis must be the basis of the Islamic State in
every era and in every location. When the Messenger of Allah
established the authority in Madinah and
assumed the rule over it, he established it on the basis of the Islamic ‘Aqidah
from the very first day and the verses of legislation had not been revealed
yet. Hence, the Messenger of Allah
made the Shahadah (testimony) of “There
is no god but Allah and Muhammad is the Messenger of Allah” as the
basis of the Muslims’ life and of the relationships between people as well as
the basis for removing grievances and settling disputes. In other words, it was
the basis of all aspects of life and the basis of authority and government. He
did not stop at that; rather, He (swt) also
legislated for Jihad and made it an
obligation upon the Muslims in order to carry this ‘Aqidah to all
people. Abu Dawud reported on the authority of Abu Hurayrah that the Messenger
of Allah
said: “I
have been ordered to fight people until they profess that there is no god but
Allah. If they said it, their lives and their wealth would be inviolable to me,
except that which is by right and their account is with Allah” (Agreed upon, text
used from Bukhari)
The Messenger of
Allah
also made the protection of the continued
presence of the ‘Aqidah as a basis for the state an obligation upon the
Muslims and he
ordered the Muslims to brandish the sword and
to fight if the flagrant Kufr (disbelief) were to become apparent; in
other words, if the ‘Aqidah ceased to be the basis of authority and
rule. The Messenger of Allah
was asked about the tyrant rulers “the most
evil of the leaders”: “Do we challenge them with the sword?”
He
replied “No, as long as they continue to establish
prayer amongst you.” (Muslim), and he
made the Bay’a (pledge of allegiance to
the ruler) based on the Muslims’ obedience to the people in authority unless
the Muslims witness a flagrant Kufr. In the narration of Auf Bin Malik
regarding the evil leaders “It was said O Messenger of Allah – do we not
challenge them with the sword? And he
replied: "No as
long as they establish the prayer” (Muslim).
And ‘Ubadah B. Samit said in the agreed upon narration regarding the Bay’a
“and
that we would not dispute the people in authority unless we witness a flagrant
Kufr (disbelief)” and in the narration of Al-Tabarani, the wording was:
“open Kufr”. And in a narration by Ibn Hibban in his Sahih collection, the
wording was: “unless the disobedience to Allah is flagrant”. All
of this indicates that the basis of the state is the Islamic ‘Aqidah,
since the Messenger of Allah
established the authority upon it, ordered the
brandishing of the sword in order to maintain it as a basis for the authority
and he also ordered Jihad for its
sake.
The first article of
the constitution was drafted based on the previously mentioned grounds. This
article prohibits the state from having any concept, conviction or criterion
that does not emanate from the Islamic ‘Aqidah. To have the Islamic ‘Aqidah
as a nominal basis for the state would not be sufficient; rather, this basis
should be reflected in every aspect related to the State’s existence and in
every minor or major issue. Hence, it is forbidden for the state to have any
concept about life or about ruling unless it emanates from the Islamic ‘Aqidah.
The state would not tolerate any concept not emanating from this ‘Aqidah.
Therefore, it would not tolerate the concept of democracy to be adopted within
the state because it does not emanate from the Islamic ‘Aqidah and
because the Islamic Aqidah contradicts with the concepts which emanate
from it. Additionally, the concept of nationalism would not be allowed to have
any consideration whatsoever because it does not emanate from the Islamic ‘Aqidah
and because the concepts which emanate from the Islamic ‘Aqidah abhor
it, prohibit it and outline its danger. Likewise, the concept of patriotism
should not have any existence, for it does not emanate from the Islamic ‘Aqidah
and because it contradicts with the concepts that emanate from the Islamic ‘Aqidah.
Furthermore, the apparatus of the State would not have any ministerial
departments according to the democratic understanding and nor should there be
in its government any imperial, monarchical or republican concepts for these do
not emanate from the ‘Aqidah of Islam and they contradict with the
concepts emanating from it. Furthermore, it is categorically forbidden for
individuals, movements or groups to account the Islamic State on other than the
basis of the Islamic ‘Aqidah. Hence, such type of accounting that is
based upon other than the Islamic ‘Aqidah would be prohibited and the
establishment of movements and groups on other than the basis of the Islamic ‘Aqidah
would be prohibited. The fact that the Islamic ‘Aqidah acts as the basis
for the State makes all of this binding upon the State itself and makes it
incumbent upon the citizens over which it rules. This is since its life, in its
capacity as a state, as well as the life of every matter originating from it in
its capacity as a state, and every action linked to it in its capacity as a
state, and every relationship established with it in its quality as a state,
must have as its basis the ‘Aqidah of the State, that is the Islamic ‘Aqidah.
As for the second
issue in the article, its evidence is reflected in the fact that the
constitution is the fundamental law (qanun al-asaasi) of the State;
thus, it is a law, and the law itself is the order of the authority. Allah (swt) ordered the ruler to rule by what
He (swt) revealed to the Messenger of Allah
and described the one who rules by other than
what Allah (swt) has revealed as a disbeliever if he believed in what he ruled
by and believed in the unsuitability of what Allah (swt) revealed to His
Messenger
. He (swt) described
the ruler who rules by other than what He (swt) revealed but did not believe in
it as ‘aassi (disobedient). This indicates that belief in Allah (swt)
and His Messenger
must be the basis of the orders of the ruler;
that is, the basis of the laws and the basis of the constitution. As for the
command of Allah (swt) to the ruler to rule by what He (swt) revealed, in other
words by the Shari’ah rules, this is established in the Book and the Sunnah.
Allah (swt) says, “ By your God, they shall not believe until they make you judge of what
is in dispute between them” (TMQ 4:65) and “So rule between them by what
Allah has revealed” (TMQ 5:49).
Allah (swt) has
confined the State’s legislation to what He had revealed and He warned against
ruling by other than it. He (swt) says, “Whoever rules by other than what Allah has
revealed, they are the disbelievers.” (TMQ 5:44). Also, the Messenger of Allah
said
in an agreed upon Hadith, “Whoever introduces into our matter (Islam) something
that is not in it, then it is rejected” (Agreed upon, text from Bukhari), and in the
narration in Muslim “something that is not from it”, and in the narration from Ibn Hazm in Al-Muhalla and Ibn ‘Abd Al-Barr in Al-Tamhid “Every action which is not based upon our order, it is
rejected”. This indicates that
the legislation of the State must be confined to what emanates from the Islamic
‘Aqidah; these are the Shari’ah rules which we certainly believe
that Allah (swt) has revealed to the Messenger of Allah
, whether their
revelation were explicit; by stating that it is the rule of Allah (swt) and it
is reflected in the Book, the Sunnah or the Sahabah (companions
of the Prophet) unanimously consented that it is the rule of Allah (swt), or
whether their revelation was implicit; by saying this is an indication of the
rule of Allah (swt) taken by way of analogy whose ‘Illah (reason) is a Shari’ah
‘Illah. This is why the second issue has been drafted in the article.
In addition, since
the actions of the worshippers must be confined to the address of the
Legislator (swt), their governing should therefore be from Allah (swt), and the
Islamic Shari’ah came to address all the actions of people and all of
their relationships, whether these relationships were with Allah (swt), with
themselves or with other people. Hence, there is no place in Islam for people
to enact laws from themselves in order to govern their relations for they are
restricted to the laws of Shari’ah. Allah (swt) says “Whatever
the Messenger brought you take it; and whatever he forbade you abstain from
it.” (TMQ 59:7). He (swt) also says: “It
is not fitting for a believer, man or woman, when a matter has been decided by
Allah and His Messenger, to have any option about their decision.” (TMQ
35:36). The Messenger of Allah
said: “Truly Allah has commanded the
obligations, so do not neglect them; He also prohibited certain things, so do
not violate them and He imposed certain limits, so do not transgress them.”
(extracted by Al-Daraqutni from Abi Tha’labah, and confirmed as Hasan by
Al-Nawawi in Al-Riyadh Al-Salihin). He
also said: “Whoever introduces into our
matter (Islam) something that is not in it, then it is rejected” (Agreed upon,
through Aaisha (ra) and the wording is from Muslim).
Therefore, it is
Allah (swt) who legislated the rules, not the ruler, and it is He (swt) who
obliged people and obliged the ruler to adhere to them in their relations and
in their actions, restricted them to these rules and prohibited them from
following anything else. Due to this, there is no scope for man to lay down
laws to govern peoples’ relations and there is no place for the ruler to force
people or to give them the choice to follow principles and rules laid down by
man to govern their relations.
Article 2
Dar Al-Islam (Islamic Abode) is the territory where the rules of Islam are
implemented and its security is upheld by Islam. Dar Al-Kufr (abode of disbelief) is
the territory where the rules of Kufr are implemented or its security is upheld
by other than the security of Islam.
Dar has several meanings:
Linguistically: “abode”, such as His (swt) words: “So We
caused the earth to swallow him and his abode place”
(TMQ 28:81) and “way-station”, and every
place that a people settle is their Dar. Such as His words: “So the
earthquake seized them and they lay (dead), prostrate in their homes” (TMQ 7:91), and it means: “city”. Sibawayh stated: “This Dar is a
beautiful city and “abode and place” such as His words: “And
excellent indeed will be the abode (i.e. Paradise) of the Muttaqun” (TMQ 16:30)”. In the same manner, it
metaphorically means “tribe”, such as the narration of Abu Hamid Al-Sa’adi in
Bukhari from the Messenger
who said: “Truly the best tribe (Dar) of the Ansar is
the tribe of Bani Najjar…”
And Dar can be adjoined
to the names of things such as His (swt) words “I shall show you the home (Dar) of
Al-Fasiqun” (TMQ 7:145), “And excellent indeed will be the abode (i.e.
Paradise) of the Muttaqûn” (TMQ 16:30), “But they killed her. So he said: “Enjoy yourselves in
your homes for three days. This is a promise (i.e. a threat) that will not be
belied.” (TMQ 11:65), and His (swt) words: “And He caused you to inherit their lands,
and their houses, and their riches”. (TMQ 33:27). And similarly in the narration of Buraydah in Muslim where the Messenger
of Allah
said, “…Then invite them to move from their household
to that of the Muhajirin (emigrants)” and the narration of Salima Bin
Nufail from Ahmad that he
said: “the centre of the believers’
abode is as-Sham”
And it could be adjoined to meanings
such as His (swt) words: “and caused their people to dwell in the house
of destruction? “ (TMQ 14:28). And His words: “Who, out
of His Grace, has lodged us in a home that will last forever” (TMQ 35:35).
And in the narration of Ali (ra) from Ibn Asakir with a Hasan Sahih
chain, and in Tirmidhi: The Messenger of Allah
said to me: “May Allah have mercy upon
Abu Bakr, he married his daughter to me and carried me to the abode of
migration (Dar-Al-Hijrah)”. And the narration of Ibn Abbas in Daraqutni
saying: The Messenger of Allah
said: “If the slave
leaves the abode of Shirk (Dar-Al-Shirk) before his master, then he is free,
and if he leaves after him, then he is returned to him, and if a woman leaves
the abode of Shirk before her husband, she can marry whom she pleases, and if
she leaves after him, then she is returned to him”
And the Shari’ah
adjoined the term Dar to two words from meanings – being: Islam and Shirk. Tabarani has a version of the
previously mentioned narration of Salima Bin Nufail in the Musnad al-Shamiyin with
the words “the centre of the abode of Islam (Dar Al-Islam) is ash-Sham”. So, the word Dar here is added
to Islam. And likewise, Al-Mawardi narrated in al-Ahkam al-Sultaniyya and in
al-Hawi al-Kabir that the Messenger of Allah
said “Whatever is in the abode of Islam
is prohibited, and whatever is in the abode of Shirk is permitted” in
respect to the sanctity of blood and wealth in the abode of Islam…except by its
right in agreement with the rules of the Shari’ah,
and with respect to the absence of sanctity of the abode of Shirk (the abode of war “Dar Al-Harb”)
in the sitution of actual war, as in the rules regarding fighting and booty….in
agreement with the rules of the Shari’ah.
This division encompasses the whole world, so there is not a part from it which
falls outside of either the abode of Islam (Dar Al-Islam) or the abode
of Shirk, or in other words the abode of Kufr or abode of war (Dar Al-Shirk,
Dar Al-Kufr, Dar Al-Harb).
The abode is considered an
abode of Islam if it fulfils two conditions:
Firstly:
that the security is upheld by the Muslims, according to the evidence that he
said to his companions in Makkah “Truly, Allah made
brothers for you and an abode for you to be safe in”. This abode is the
Dar al-hijrah mentioned in the narration of ‘Ali already mentioned from
Ibn ‘Asakir, and in the narration of Aaisha (ra) in al-Bukhari in which the
Messenger of Allah
said: “I have been shown the abode of
your emigration”. And the evidence that he
and his companions did not emigrate to Madinah
until he
was sure about the presence of protection
and security; Al-Hafiz said in Al-Fath, Bayhaqi narrated through a strong chain
from Al-Sha’bi and Al-Tabarani connected it from the narration of Abu Musa Al-Ansari
who said: “The Messenger of Allah
set off with his uncle al-‘Abbas to meet
70 of the Ansar at al-‘Aqabah, and Abu Umama said to him – Asad Bin Zurara – O
Muhammad ask for your Lord and yourself whatever you want, then he informed us
of what reward we will have. He said: I ask you for my Lord, to worship Him and
do not associate anything else with Him, and I ask you for myself and my
companinos to accommodate use, and support us, and protect us from what you
protect yourselves. They said: What is for us? He
said: Paradise. They said: What you
asked for is yours”.
And the evidence related by Ahmad from Ka’ab Bin M’alik
through a Sahih chain, that the Messenger of Allah
said: “I pledge to you that you protect
me from that which you protect your women and children from. So al-Baraa Bin
Ma’ror took him by his hand and said Yes, by the One who sent you with the
Truth, we will most certainly protect you from that which we protect our
people, and so give us the pledge oh Messenger of Allah
, we are people of wars and
strong disposition, and we inherit this from our forefathers”. And in a Sahih narration by
Ahmad from Jaber that he
said in the pledge of ‘Aqabah “…and to
give support to me and protect me from whatever you protect yourselves, your
wives and your children from when I come to you, and you will have Paradise”.
And in the Dala’il Al-Nabuwa by Al-Bayhaqi, with a strong, good chain
from ‘Ubadah Bin Samit who said “And to give support to the Messenger of
Allah
from that which we protect ourselves,
our wives and our children when he arrives to us at Yathrib, and we would have
Paradise”.
The Prophet
refused to emigrate to any place which did not
have security, power and protection. Al-Bayhaqi narrated through a Hasan
chain from ‘Ali that the Messenger of Allah
said to the Shayban b. Tha’labah tribe: “You
have not replied badly since you expressed the truth, and the Deen of Allah is
not given support except by those who can protect it from all sides”.
This was after they had offered to support him with respect to the Arabs while
excluding the Persians.
Secondly: That the rules of Islam are implemented therein.
This is from the evidence of al-Bukhari from Ubada Bin Samit who said: “The
Messenger of Allah
called us and we took
the oath of allegiance to him. Among the injunctions he made binding upon us
was: Listening and obedience (to the Amir) in our pleasure and displeasure, in
our adversity and prosperity, even when somebody is given preference over us,
and without disputing the delegation of powers to a man duly invested with them
except when you see clear Kufr (disbelief) which you have proof from
Allah”. And listening to and
obeying the Messenger of Allah
is with regards to his orders and
prohibitions, in other words in respect to the implementation of laws. Another
evidence is what Ahmad narrated, Ibn Hibban in his Sahih collection and
Abu ‘Ubayd in al-Amwal by ‘Abd Allah b. ‘Amru from the Prophet
who said: “The emigration is two –
emigration of the one who is settled and the nomad, as for the nomad he obeys
if ordered and responds if called, as for the one who is settled they have the
greater test and reward”. The angle of inference is clear from his
words
“he obeys if ordered and responds if
called”, since the desert was part of the abode of Islam (Dar
Al-Islam) even if it was not the abode of emigration (Dar al-hijrah).
And accordingly with the evidence of the narration of Wathilah b. al-Asqa’ in al-Tabarani, al-Haythami said through a chain whose
people are all trustworthy that the Messenger of Allah
said to him “And the emigration of the
nomad is to return to your nomadity, and to listen and obey in your displeasure
and pleasure, and your adversity and prosperity, even if someone is given
preference over you…” and the evidence that Ahmad narrated with a Sahih
chain from Anas: “I followed some youths saying that Muhammad has come,
so I followed and did not see anything. Then they say – Muhammad has come, so I
followed and did not see anything. He said: Until Muhammad
and his companion Abu Bakr came, and we
were part of the fervency of Madinah. Then they sent a man from the people of
Madinah to make the Ansar aware of them, and so they were met by about five
hundred from the Ansar reaching them. The Ansar said: Proceed in safety and with
authority. And so the Messenger of
Allah
and his companion came from between
them. And so the people of Madinah came out, including the women overlooking
from their households saying which of them is he, which of them is he?”.
This narration has the evidence for both of the two conditions of security and
the implementation of the laws. With respect to the security – this is proven
from the presence of five hundred from the Ansar saying proceed in safety and
the Messenger
confirmed their words. In the same manner he
confirmed their words that the two of them would be obeyed. Accordingly the
security and obedience were fulfilled in the abode of emigration (Dar
al-Hijrah) and if they had not been fulfilled the Prophet
would not have emigrated.
These two conditions, the fulfillment of security and
obedience in the implementation of the laws, were pledged upon by the Ansar in
al-’Aqabah. Al-Bayhaqi narrated with a strong chian from ‘Ubadah b. Samit who
said “…We pledged allegiance to the Messenger of Allah
to listen and obey when we were busy and
inactive, and to spend in times of difficulty and ease, and upon enjoining the
good and forbidding the evil, and upon saying the truth regarding Allah and not
fearing the blame of the blamers, and upon us supporting the Messenger of Allah
whenever he came to Yathrib against
whatever we protected ourselves, our wives and our sons from, and we would have
Paradise. This was the pledge that we gave to the Messenger of Allah
”. And the security is that of the
Muslims, as made clear by his words “and upon us supporting the Messenger
of Allah
whenever he came to Yathrib against
whatever we protected ourselves, our wives and our sons from, and we would have
Paradise.”
This meaning was clear from the letter
which he wrote between the Emigrants and the Ansar, and made peace with the Jews therein and made a convenant
with them. This occurred in the first year of the emigration. This is from the
account of Ibn Ishaq and it has been called the sahifa. It says: “In
the name of Allah the Compassionate, the Merciful. This is a document from
Muhammad the Prophet
between the believers and Muslims of
Quraysh and Yathrib, and those who followed them and joined them and struggled
alongside them that they are one community (Ummah) to the exclusion of all
men…Believers are protectors one to the other to the exclusion of outsiders…The
Jews must bear their expenses and the Muslims their expenses. Each must help
the other against anyone who attacks the people of this document…If any dispute
or controversy likely to cause trouble should arise it must be referred to
Allah and to Muhammad the Messenger of Allah
”.
Based upon this, the abode cannot be an abode of Islam unless
it fulfilled the conditions that the security was in the hands of the Muslims
and that the laws of Islam were implemented, and if one of these two conditions
ceased, or was not fulfilled, such as the security falling into the hands of
the disbelievers or that the rule of Al-Taghut was implemented amongst
the people, the abode would become an abode of polytheism (Dar Al-Shirk)
or disbelief (Dar Al-Kufr). It is not a condition that both of these
conditions are absent for the abode to transform to an abode of polytheism, rather
it is sufficient that one of them is absent for that to occur. The abode being
one of disbelief does not mean that all of its inhabitants are disbelievers and if the abode was one of
Islam it does not follow that all of its inhabitants are Muslims. Rather the
meaning of the term abode (Dar) here is the Shari’ah terminology (Shar’i real meaning)
in other words that the Shari’ah is what gives it this meaning, like the
terms prayer (Salah) and fasting (Sawm) and similar from the Shar’i
realities .
Based upon this, the term could be
applied upon a land where most of the inhabitants are Christians for example,
but if it was part of the Islamic State it would be referred to as an abode of
Islam (Dar Al-Islam). This is because the rules applied therein are the
Islamic laws and the security of the land would be by the security of Islam as
long as it remained part of the Islamic State.
And in the same manner, any land where
the majority of its inhabitants are Muslims but it was part of a State which
did not rule by Islam, nor was it secured by a Muslim army but rather by that
of the disbelievers, then the term abode of disbelief (Dar Al-Kufr)
would be applied to it despite most of its inhabitants being Muslims.
So, the meaning of abode (Dar) here is the Shar’i reality
(legislative meaning) without regard to where the Muslims were a majority or
minority where the term is applied; rather, it is with regard to the
implemented laws and the established security for its inhabitants. In other
words, the meaning of abode is taken from the legislative (Shar’i) texts
which explained this meaning, in the same way that the meaning of the word Salah
is taken from the legislative texts which explained its meaning. And in the
same manner all the Shar’i real meanings have their meaning derived from the
legislative texts and not from the linguistic meaning of the words.
Article 3
The Khalifah
adopts specific Shari’ah rules which he will enact as a constitution and
laws. If he adopts a Shari’ah rule, this rule alone becomes the Shari’ah
rule that must be acted upon and it becomes a binding law that every citizen
must obey openly and privately.
The evidence of this article is
derived from the Ijma’ (General Consensus) of the Companions that the Khalifah
reserves the right to adopt specific Shari’ah rules. It has also been
established in the same manner that it is obligatory to act upon the rules
adopted by the Khalifah. The Muslim is not permitted to act upon any
rule other than what the Khalifah has adopted in terms of rules even if
these rules were Shari’ah rules adopted by one of the Mujtahideen (scholars
of Islam). This is so because the rule of Allah that becomes duly binding upon
all the Muslims is what the Khalifah adopts. The rightly guided Khulafaa’
proceeded in this manner; they adopted a host of specific rules and ordered
their implementation. Thus the Muslims, with all of the Companions amongst
them, used to act upon these rules and to abandon their own Ijtihad (Islamic
opinion derived from the Islamic evidences). For instance, Abu Bakr (ra)
adopted in the matter of divorce a rule stipulating that the triple divorce
would be considered as one divorce if it were pronounced in one sitting. He
also adopted in the matter of distributing the wealth upon the Muslims a rule
stipulating that wealth should be distributed equally amongst the Muslims,
regardless of seniority in Islam or anything else. The Muslims followed him in
this as well as the judges and the Walis (governors) implemented the
rules that he had adopted. When Umar (ra) took office, he adopted other
opinions different to those of Abu Bakr (ra) in the same two matters; he
imposed the rule stipulating that the triple divorce is considered as three and
he also distributed the wealth among the Muslims according to their seniority
in Islam and according to their needs rather than distributing equally. The
Muslims duly followed him in this and the judges and the governors implemented
the rules he had adopted. Then, Umar (ra) adopted a rule stipulating that the
land conquered in war is a spoil for Bayt al-Mal (the State’s treasury),
not for the fighters, and that the land should remain with its owners and
should not be divided among the fighters or among the Muslims. The governors
and the judges duly complied and implemented the rule that he had adopted.
It was in this manner that all of
the rightly guided Khulafaa’ proceeded with respect to adoption of
opinions, ordering people to abandon their Ijtihad and the rules which
they had acted upon, and instead adhere to that which the Khalifah had
adopted. So the Ijma’ of the Companions was established on two matters;
the first is the right of adoption and the second is the obligation of acting
upon what the Khalifah adopts. Famous Shari’ah principles were
derived based on this Ijmaa’ of the Companions. These are: “The Sultan reserves the right to effect as many judgements as the
problems which arise”, “The order of the Imam resolves the disagreement” and “The order of the Imam is binding”.
The evidence for
adopting one Islamic opinion is the fact that there are different Islamic
opinions regarding one single matter; hence, in order to act upon the Shari’ah
rule in any matter it is imperative to adopt a specific Islamic opinion for it.
This is so because the Shari’ah rules, which represent the address of
the Legislator related to the actions of the worshippers, have come in the
Quran and in the narrations, and many of these can have a number of possible
meanings according to the Arabic language and according to Shari’ah. For
that reason, it is natural and inevitable that people differ in their
understanding of the address of the Legislator and that this difference in
understanding reaches the level of disparity and contradiction in the intended
meaning. Thus, it is inevitable to have different and contradictory understandings
of the same matter. Because of this, there could be a host of different and
contradictory opinions in a single matter. So when the Messenger of Allah
said at the battle of Ahzab: “None
of you should pray ‘Asr except in Bani Quraythah” (recorded by Al-Bukhari
through Ibn Umar), some understood that he was urging haste and so they prayed
on their way to Bani Quraythah, while others understood that he
had literally ordered them to pray ‘Asr
in Bani Quraythah; therefore, they delayed praying ‘Asr until they
reached their destination. When the Messenger of Allah
heard of this, he approved both
understandings, and there are many verses and narrations similar to this.
The difference of
opinion in single matters makes it incumbent upon the Muslims to adopt one
opinion from these various opinions since all of them are Shari’ah rules
and the rule of Allah (swt) in one single matter regarding one person is not
multiple. Therefore, it is imperative to choose one single rule from the Shari’ah
in order to act upon. Hence, the Muslim’s adoption of a specific Shari’ah
rule is necessary and inevitable when he or she undertakes the action since
undertaking the action obliges the
Muslim to accomplish it according to the Shari’ah rule. The obligation
of acting according to the Shari’ah rule, whether this was a Fard
(obligatory), Mandub (recommended), Haram (forbidden), Makruh (despised) or
Mubah
(permitted) makes it incumbent upon the Muslim to adopt a specific Shari’ah
rule. Therefore, it is obligatory upon every Muslim to adopt a specific Shari’ah
rule when taking rules for actions, irrespective of whether he or she was a Mujtahid
or a Muqallid (someone who follows the opinion of a scholar in an issue
rather than deriving it themselves) or whether they were the Khalifah or
other than the Khalifah.
With respect to the Khalifah,
it is imperative for him to adopt a host of specific rules according to which
he assumes the management of peoples’ affairs. Hence, it is necessary for him
to adopt certain rules pertaining to what is of a general nature to all the
Muslims in terms of matters of government and authority such as Zakat,
levies, Kharaj (land tax), foreign relations and everything that is
related to the unity of the State and ruling.
However, his adoption of the
rules is subject to scrutiny. If the Khalifah’s managing of the people’s
affairs were subject to adopting specific Islamic rules, then in this case the
adoption would be obligatory upon the Khalifah. This would be in
concordance with the Shari’ah principle stipulating that: “Whatever
is necessary to accomplish a duty is in itself a duty”, such as the signing of treaties.
However, if the Khalifah could manage peoples’ affairs in a specific
matter according to the Islamic Shari’ah rules without having to resort
to the adoption of a specific rule in this matter, then in this case the
adoption would be permitted for him rather than an obligation, such as Nisab
Al-Shahadah (the minimum number of witnesses in a testimony). In
this case, it is permitted for him to adopt or not to adopt, for in essence the
adoption is permitted and not obligatory; this is so because the Ijma’
of the Companions is that the Imam
can adopt and there is no Ijma’ that the Imam must adopt. Therefore, the adoption itself is permissible and
it does not become obligatory unless the obligatory management of peoples’
affairs cannot be accomplished except through adoption. In such a case it then
becomes obligatory so that the duty could be accomplished.
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