Draft Constitution

The Draft Constitution

or the Necessary Evidences for it

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.

Article 4

The Khalifah does not adopt any specific Shari’ah rule in matters related to rituals(‘ibadaat) except in Zakat and Jihad, and whatever is necessary to protect the unity of the Muslims, and nor does he adopt any thought from among the thoughts related to the Islamic ‘Aqidah.

There is a consensus of the companions that the Khalifah alone has the right to adopt and from this consensus the famous rules “the decision of the Imam resolves the disagreement” and “the decision of the Iman is binding” have been derived. However, it emerged from the events of Al-Ma’mun (pertaining the Fitna (strife) of the creation of the Quran), that adoption in the thoughts related to Aqa’id (beliefs, plural of ‘Aqidah) caused Fitna for the Khalifah and Fitnah amongst the Muslims. Therefore, the Khalifah deems it fit to abstain from adopting in matters related to ‘Aqidah and in rules related to rituals in order to avoid problems and to gain the consent and tranquillity of the Muslims. However, abstaining from adopting in matters of 'Aqa’id and in rituals does not mean that it is forbidden for the Khalifah to adopt in them, it rather means that the Khalifah chooses not to adopt in them for he can either adopt or abstain from adopting. Thus, he may choose not to adopt. That is why the article stated that the Khalifah “does not adopt” rather than stating that the Khalifah is “forbidden from adopting”, which indicates that he may choose not to adopt.

As for why he chooses to abstain from adopting in Aqa’id and in rituals, this is based upon two issues: Firstly, the hardship caused by coercing people to follow a specific opinion related to ‘Aqidah matters. Secondly, the fact that what prompts the Khalifah to adopt is in reality the management of the Muslims’ affairs by one single opinion and preserving the unity of the State and the unity of the ruling. Hence, he adopts in matters related to the relationships between individuals and related to public matters, and he does not adopt in matters related to relationship of man with his God.

With respect to the first issue, Allah prohibited the compulsion of the disbelievers to leave their beliefs and to embrace the Islamic ‘Aqidah, forbade forcing them to leave their rituals and ordered compelling them to be restricted by other Shari’ah rules so, by greater reasoning, the Muslims should not be forced to leave the rules related to the beliefs as long as they remained Islamic beliefs and should not be forced to leave the rules related to rituals as long as they were Shari’ah rules. Also, the compulsion to leave ideas connected to beliefs is a definite cause of hardship and will inflame loyalty (to those ideas) without doubt as proven by what happened with Imams such as Imam Ahmed Ibn Hanbal in the Fitna of creation of the Quran. When they were subjected to beating and humiliation, they did not submit neither did they leave what they believed in. Allah (swt) has said “(Allah) has not laid upon you in Deen any hardship” (TMQ 22:78).

The rituals are like the beliefs since compulsion upon specific rules while the person holds another opinion as the Shari’ah rule is a cause of distress upon the soul for it is the relationship of people with Allah and because it is bound to the ‘Aqidah; so the Khalifah should not adopt in whatever causes distress upon the Muslims. However, it is not forbidden for him to do so.

As for the second issue, the beliefs and the rituals are the relationship between man and the Creator and they do not bring about relationships upon which problems spring from, as opposed to the transactions and punishments since they are the relationship between the individuals within the society and cause the occurrence of relationships from which problems result. The origin in transactions is the resolution of disputes and the essence of the Khalifah’s adoption is to manage the peoples’ affairs. Their affairs are openly managed on the part of the Khalifah with respect to what is between them in terms of relationships and there is no scope for this in regards to their relationship with Allah, in other words in their beliefs and rituals.

For that reason the tangible reality of adoption by the Khalifah is that it can only be in respect to the relationships between people in order to manage their affairs and not in the relationships between them and Allah. Consequently, the reality of adoption is that it is only in the relationships between the people and the public relationships. So, adoption in the relationship between man and the Creator, in other words, in the beliefs and rituals, contradicts the reality of adoption. Based upon this, the Khalifah will not adopt in what contradicts the reality of adoption. However, it is not forbidden for him to do so.

Built upon these two matters – the distress or the hardship and the contradiction of the tangible reality of adoption, the Khalifah does not adopt in the thoughts of the beliefs or in the rules of the rituals. However, if a clear prohibition is mentioned in the Quran and in the Sunnah regarding a certain belief (‘Aqidah), then, at that time it is adopted (prohibiting that belief) even if there is hardship and even if it contradicts the reality of adoption so as to give preference to the definite text. For example, beliefs cannot be adopted except by conviction. In a similar fashion, it can be done if managing the affairs of the Muslims necessitates collecting them upon one rule. This is based upon the texts that enjoin the protection of the congregation of Muslims and the protection of the unity of the state. As example for this are the specification for the times of Hajj and fasting Ramadan, the Eid celebrations, Zakat and Jihad.

In these issues the Khalifah adopts a specific Shari’ah rule since, with respect to the ‘Aqidah, there cannot be compulsion to leave conviction, rather adhering to what is held as conviction is enforced. This is from text which is conclusive in its narration and indication (qati’ thabut qati’ dalalah). With regards to the ritualistic issues, there is no hardship in them since they are not from that which pertains to the relationship solely between man and His Lord such as prayer, rather they are those that are connected to the relationships between people, such as the celebrations. Due to this adoption is permitted in these two circumstance regarding beliefs and rituals.

What determines whether an idea is from the ‘Aqidah or from the Shari’ah rules is its Shari’ah evidence. So, if the evidence is an address related to the action of the servants of Allah, then, it is a Shari’ah rule since the Shari’ah law is the address of the Legislator related to the actions of the servant, and if it is not related to the actions of the servant, then, it is from the ‘Aqidah. Additionally, the difference between the ‘Aqidah and the Shari’ah rule is that what is requested to have Iman in and has no action requested in it, is from the ‘Aqidah, such as the stories and the information regarding the unseen.  Those issues that request action are the Shari’ah rules. So, the following words of Allah are all from ‘Aqidah: “Believe in Allah and His Messenger and the Book which He revealed to His Messenger” (TMQ 4:136),  “Allah is the Creator of all things” (TMQ 39:62),  “And mention in the book Maryam…” (TMQ 19:16), and the words “It is a Day whereon mankind will be like moths scattered about; and the mountains will be like carded wool” (TMQ 101:4-5). All of these are from ‘Aqidah because they are not related to the actions of the servants; they are from what Iman is requested in, and there is no request for action in them. Also, the words of Allah: “And Allah has permitted trade” (TMQ 2:275), “If they suckle the children for you, give them their due payment” (TMQ 65:6), and His words “and when you judge between men, judge with justice” (TMQ 4:58) are all from the Shari’ah rules since they are related to the actions of the servants and they are from the issues that actions are requested in.

Based upon this, the fact that the Messenger of Allah  is the seal of the Prophets is considered from the ‘Aqidah since it comes under what is requested to have Iman in. Conversely, the Imamate, in other words the Khilafah is not from the ‘Aqidah since it is amongst the issues which action is requested in. The fact that the Prophet  is free from sin is considered from the ‘Aqidah. However, the issue of the Khalifah being from  Quraysh,  Ahl Al-Bayt (family of the Prophet) or any Muslim from amongst the Muslims is from the rules of the Shari’ah and it isn’t from the ‘Aqidah since it is related to the actions of the servants and is related to the the conditions of the Khalifah. In this manner, everything that is not connected to the actions or is requested to have Iman in is from the ‘Aqidah, but what is from the actions of the servants or what is requested to be acted upon is considered to be from the Shari’ah rules.

The reality of ‘Aqidah is that it is a fundamental thought; the meaning of it being an ‘Aqidah is that it is taken as the fundamental criteria to measure anything else; therefore if the idea was not a fundamental one, then it would not be considered ‘Aqidah. Also, ‘Aqidah is the comprehensive thought regarding the universe, man and life, what came before the life of this world and what will come after it and the relationship between life and what came before it and what will be after it. This definition is for every ‘Aqidah and is applied upon the Islamic ‘Aqidah. The definition also includes the unseen within it. Accordingly, every thought from the ideas of this comprehensive thought is from the ‘Aqidah. So, everything which is related to Allah, the Day of Judgement, the creation of the universe and the like is part of the ‘Aqidah, but everything which has no relation with that is not considered from the ‘Aqidah.

Article 5

All citizens of the Islamic State enjoy the Shari’ah rights and duties.

Article 6

The State is forbidden to discriminate at all between the individuals in terms of ruling, judiciary and management of affairs or their like. Rather, every individual should be treated equally regardless of race, Deen, colour or anything else.

These two articles have been drafted in order to explain the rules pertaining to those who carry the Islamic citizenship irrespective of whether they were Muslims or the people of Dhimmah (non-Muslim citizen of the Islamic State). As for the Muslims, this is due to the fact that the Messenger  has denied the Muslims who live outside the Islamic State and who do not hold the Islamic citizenship from the rights enjoyed by the State’s subjects. On the authority of Sulayman Ibn Buraydah on that of his father who said: “Whenever the Messenger of Allah (saw) appointed anyone as Amir of an army or an expedition, he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He (saw) would say: “Conquer in the Name of Allah and in the Way of Allah. Fight against those who disbelieve in Allah. Conquer and do not embezzle the spoils; do not break your pledge and do not mutilate the dead bodies. Do not kill the children and if you encountered your enemies who are polytheists, invite them to three courses of action. If they respond to any of these, then accept it from them and withhold yourself from doing them any harm. Invite them to Islam; if they respond to you accept it from them and desist from fighting them. Then invite them to migrate from their abode to the abode of the Muhajirin and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirin. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims, but they will not get any share from the spoils of war or Fai’ except when they actually perform Jihad with the Muslims” (Recorded by Muslim). This narration indicates clearly that the one who does not migrate to Dar Al-Islam will not enjoy any of the rights of citizenship even if he were a Muslim. The Messenger of Allah  invited them to come under the authority of Islam so that they may enjoy what the Muslims enjoyed and undertake the obligations which the Muslims undertook; he  said: “Then invite them to migrate from their household to the household of the Muhajirin and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirin”. This text stipulates that migration is required for them to have what we have and for our obligations to be upon them, in other words for them to fall under the laws. The understanding of the narration is that if they did not move they would not have what the emigrants had, in other words what they had in the abode of Islam (Dar Al-Islam), so this narrations explain the difference in the laws between the one who moves to the abode of the emigrants and the one who doesn’t, and the abode of the emigrants was the abode of Islam with anything else being the abode of disbelief (Dar Al-Kufr). The individual’s residence in Dar Al-Islam or in Dar Al-Kufr is referred to as citizenship. Hence, a person’s citizenship means the abode which he chooses as his residence; is it Dar Al-Islam or Dar Al-Kufr? If it were Dar Al-Islam, then the rules of Dar Al-Islam would apply to it, and in this case a person would be a holder of an Islamic citizenship. If it were Dar Al-Kufr, the rules of Dar Al-Kufr would apply to it, and the person living there would not be considered as a holder of an Islamic citizenship.

The laws encompass the Dhimmi who lives in Dar Al-Islam, so they are given the rights of residency and carry the citizenship. The Dhimmi is the one who embraces any Deen other than Islam and becomes a citizen of the Islamic State while remaining upon his faith which is other than Islam. The word Dhimmi is derived from the word Dhimmah, meaning the oath. Hence, the Dhimmi are those to whom we give an oath to treat according to the terms of peace we made with them and to proceed in interaction with them and in managing their affairs according to the rules of Islam.

Islam has come with several rules pertaining to the people of Dhimmah, in which it guaranteed the rights of citizenship for them and imposed upon them its duties. Islam also outlined that the Dhimmi enjoy the same justice we enjoy and that they should abide by the same rules that we abide by. As for that which they enjoy in terms of justice and fairness, this is derived from the general command reflected in Allah (swt) saying: “And if you judge between people that you judge with justice.” (TMQ 4:58) and in His (swt) saying: “And let not the hatred of others to you to make you swerve to wrong and depart from justice. Be just, that is nearer to piety” (TMQ 5:8) and it is also reflected in Allah (swt) saying regarding the judgement between the people of the book “If you judge, judge with equity between them; for Allah loves those who judge in equity” (TMQ 5:42).

As for abiding by that which we abide by in terms of justice, this is derived from the actions and sayings of the Messenger of Allah . He  used to exact the same punishment upon the disbelievers and the Muslims. The Messenger of Allah  punished a Jew by killing him for killing a woman, as has been recorded in al-Bukhari from Anas Bin Malik who said: “A woman who went out in Madinah wearing ornaments was attacked by a Jew who threw a stone at her, so she was brought to the Prophet  barely alive, so the Messenger of Allah said to her so and so killed you, upon which she raised her head, and so he returned and said so and so killed you, upon which she raised her head, so he returned and said so and so killed you upon which she lowered her head. The Messenger of Allah called for that person and he was killed between two stones”. He  was brought a Jewish man and woman who had committed adultery and so he stoned the pair of them as related by al-Bukhari from Ibn Umar who said “A Jewish man and woman who had committed adultery were brought to the Messenger of Allah , and so he asked the Jews what do you find in your book? They said our rabbis appeared red faced. ‘Abd Allah Bin Salam said Call them to the Torah O Messenger of Allah, and so they brought it and one of them placed his hand upon the verse of stoning and began to recite what came before and after it, and so Ibn Salam said to him Raise you hand, and the verse of stoning was there beneath his hand and so the Prophet ordered for the two accused to be stoned”

It is a duty upon us to give the people of the Dhimmah the protection given to the Muslims, due to words of the Messenger of Allah , “He who kills a covenanted person unjustly shall not find the scent of heaven; its scent is found the distance of a hundred year march”, transmitted by Al-Tirmidhi who said it is Hasan Sahih. And al-Bukhari transmitted it with the words “whoever killed a covenanted person will not smell the scent of heaven; and its scent covers the distance of 40 years”.

The people of Dhimmah enjoy the same rights as those enjoyed by Muslims in terms of managing their affairs and securing their living. It is narrated on the authority of Abu Musa Al-Ash’ari that the Messenger of Allah  said: “Feed the hungry, visit the poorly and free the prisoner” transmitted by al-Bukhari through Abu Musa. Abu ‘Ubaydah said: “Therefore, the people of Dhimmah are excluded from Jihad, their prisoners are freed and if they are salvaged, they return to their Dhimmah and their oath as free, and there are narrations regarding that”. And on the authority of Ibn Abbas who said: “The Messenger of Allah  made peace with the people of Najran” and from the narration as transmitted by Abu Dawud in his Sunan “their churches would not be destroyed, and no priest of theirs would be banished and they would not be coerced away from their faith provided they did not innovate any matter and they did not deal in usury”.

The Prophet  used to visit their sick, as recorded by al-Bukhari from Anas who said “There was a young Jewish boy who used to help the Prophet  who became ill and so the Prophet  used to visit him. He sat by his head and said to him – Embrace Islam, and so he looked at his father who said to him Obey Abul Qasim, and so he embraced Islam. The Prophet  left him and he said All Praises to Allah who saved him from the fire” which indicates that it is permitted to visit them, be courteous and sociable with them. Al-Bukhari transmitted from Amru Bin Maymun from Umar Bin al-Khattab (ra) who counselled at the time of his death “And I direct the Khalifah after me with this and this, and direct him that by the oath of Allah and the oath of His Messenger , he should fulfil their oath towards them, to fight on their behalf and not to burden them with more than they could bear”.

The Dhimmi should not be interfered with in terms of their faith and their rituals, for the Messenger of Allah (saw) said according to what Abu Ubaid reported in al-amwal through ‘Urwa who said: The Messenger of Allah  wrote to the people of Yemen: “He who is upon his Judaism and his Christianity, should not be coerced away from their faith”. Custom duties are not extracted from the Dhimmi in the same way they are not taken from the Muslims. Abu ‘Ubayd reported in al-Amwal on the authority of Abdul Rahman b. Ma’qal “I asked Ziyad Bin Hadir – who did you used to tax? He said – we did not use to tax Muslims nor the one who had a covenant. So I said – so who did you tax? He said traders of war (people from states with no agreement) in the same way they would tax us if we went to them”. The tax collector is the one who extracts the custom duties.

Therefore, the Dhimmi are subjects of the State, like any other subjects, enjoying the rights of citizenship, protection, guaranteed living and fair treatment. They also enjoy the right of being treated with kindness, leniency and clemency. They can join the Islamic armed forces and fight alongside the Muslims if they choose to do so, but they are not obliged to fight and no wealth is obliged from them except the Jizya, so the taxes that are obliged upon the Muslims do not apply to them. They are viewed by the ruler and the judge in the same light as the Muslims are viewed without any discrimination in terms of the management of their affairs and the implementation of the rules of transactions and the penal code upon them. Therefore, the Dhimmi enjoys all the rights, equally and exactly as those enjoyed by the Muslim; he is also expected to perform all the duties incumbent upon him, such as the fulfilment of the oath and the obedience of the State’s orders.

In this way it can be seen that the issue with respect to being taken care of is the citizenship of the State, irrespective of whether they were Muslim or not. It is forbidden to discriminate in any way between those who hold the Islamic citizenship, due to the generality of the evidences pertaining the ruling and judicial matters and management of affairs. Allah (swt) says: “And if you judge between people that you judge with justice” (TMQ 4:48). This is a general address that applies to all people, Muslims and non-Muslims alike. Furthermore, the Messenger of Allah  said: “The evidence must be submitted by the plaintiff and the oath must be delivered by the defendant who denies the charge” as transmitted by al-Bayhaqi with a Sahih chain. This is also general and it applies to Muslims and non-Muslims alike. It is narrated from ‘Abd Allah Bin Zubayr who said: “The Messenger of Allah  has decreed that the two disputing parties should both sit before the judge” reported by Ahmad and Abu Dawud and authenticated by al-Hakim. This is also general and it includes any two disputing parties, Muslims and non-Muslims alike. The Messenger of Allah  said “The Imam is a guardian and he is responsible for his subjects.” (Agreed upon by Muslim and al-Bukhari). The term “subjects” is general and it includes all the subjects, Muslims and non-Muslims alike. Likewise, all the general evidences related to citizenship indicate that it is forbidden to discriminate between the Muslim and the non-Muslim, between the Arab and the non-Arab or between the white and the black. Rather, all the people who hold the Islamic citizenship should rather be treated equally, without any discrimination between them either by the ruler, in terms of looking after their affairs and in terms of protecting their lives, their honour and their wealth, or by the judge in terms of equality and justice.

Article 7

The State implements the Islamic Shari’ah upon all those who hold the Islamic citizenship, with no difference between Muslims and non-Muslims as follows:

(a)All the rules of Islam will be implemented upon the Muslims without any exception.

(b)The non-Muslims will be allowed to follow their beliefs and worships within the scope of the general system.

(c)The rule of apostasy will be implemented upon the apostates from Islam if they themselves were the apostates. As for their children, they will be treated as non-Muslims if they are born as such. Thus,, they will be treated in accordance with their current status as being either polytheists or people of the book.

(d)The non-Muslims will be treated in matters related to foodstuffs and clothing according to their faith and within the scope of what the Shari’ah rules permit.

(e)Matters of marriage and divorce will be settled among the non-Muslims according to their faith, and will be settled between them and the Muslims according to the rules of Islam.

 (f) The State will implement the rest of the Shari’ah rules and all the Islamic Shari’ah matters, such as transactions, penal codes, testimonies, ruling systems and economics among others equally upon the Muslims and non-Muslims. The State will also implement the same upon those with a covenant, the asylum seekers and all those under the authority of Islam in the same way. It implements them upon all members of society except for the ambassadors, consuls, and similar for they have diplomatic immunity.

Truly Islam has come for all people. Allah (swt) says “And We have sent you as a conveyor of glad tidings and as a Warner unto all mankind” (TMQ 34:28). Just like the disbeliever is obligated to abide by the “Usul” (foundations), in other words by the Islamic ‘Aqidah, he is also obligated to abide by the branches i.e. the Shari’ah rules. As for the fact that he is obligated to abide by the rules, this is clearly mentioned in the verses of the Holy Quran, and as for the fact that he is obligated to abide by the branches, this is because Allah (swt) has clearly obligated him with some of the branches, among which are those verses commanding the disbeliever to worship Allah (swt). He (swt) says, “O people, worship your God” (TMQ 2:21), Allah (swt) also says “Hajj thereto is a duty people owe to Allah” (TMQ 3:97), and similar. Moreover, were the disbelievers not obligated to abide by the branches, Allah (swt) would not warn them against their violation, and the verses warning them against the forsaking of these branches are numerous, some of which are:

Allah (swt) says, “And woe to the polytheists; those who do not pay Zakat” (TMQ 41:6-7).

Allah (swt) also says, "Those who invoke not with Allah any other god, nor slay such life as Allah made sacred, except for a just cause, nor do they commit fornication; and any that does this meets punishment" (TMQ 25:68).

Allah (swt) also says, "What led you into Hell-Fire? They will say we were not of those who prayed” (TMQ 74:42-3).

The fact that the disbelievers have been obligated to abide by some of the commands and prohibitions indicates that they have been obligated to abide by all the commands and prohibitions. Furthermore, the verses which stipulate the obligation to abide by the branches are mentioned in a general term and the general term remains upon its generality unless the evidence of specification is mentioned; in this context, no evidence has been mentioned which restricts these verses to the Muslims, and so they remain general. For instance, Allah (swt) says, “Allah has permitted trade and forbidden usury” (TMQ 2:275), and He (swt) says “And if they suckle your children then given them their due payment” (TMQ 65:6), Allah (swt) also says "Then pledge with possession..." (TMQ 2:283), and the words of the Messenger of Allah  “He who revives a barren land, it becomes his” reported by Ahmad and Al-Tirmidhi with a Sahih chain through Jabir. The Messenger of Allah  also said “The hand is liable for what it has taken until it is given back” transmitted by Ahmad with a Sahih chain through Samurah Bin Jandub. There are many other rules to this effect. This serves as clear evidence that they are obligated to abide by the branches.

Furthermore, the commandment to abide by the foundation is in itself a commandment to abide by the branch, and the commandment to abide by the whole is a commandment to abide by the part; so, the obligation to pray entails the obligation of the prostration, the recitation, the standing and so on. The disbeliever is commissioned to abide by the foundation; thus, he is obligated to abide by the branch. As for the non-acceptance of some branches from the disbelievers, such as prayer and fasting, this is because the embracing of Islam is one of the conditions of acceptance; thus, they would not be accepted until the condition is fulfilled. However, this does not mean that it is not obligatory upon them. As for the fact that they are not commanded to perform certain branches that embracing Islam is not a condition for such as Jihad this is because Jihad is fighting the disbeliever for their disbelief, and the Dhimmi is a disbeliever. Thus, it is inconceivable for him to fight the disbelievers due to their disbelief; otherwise, it would be permitted for him to fight himself. Therefore, he is not obligated to perform Jihad. However, if he accepts to fight a disbeliever, it will be accepted of him. However, he will not be forced to perform Jihad and this does not mean that he is not commanded by Allah (swt) to perform it.

This is from the fact that they are obligated to abide by the rules of Islam. As for the fact that the ruler should implement all the rules of Islam upon them, this is reflected in Allah's (swt) saying with respect to the People of the Book “So judge between them by what Allah has revealed and do not follow their desires” (TMQ 5:48).

Allah (swt) also says with respect to them “And judge between them by what Allah has revealed and do not follow their desires” (TMQ 5:49).

Allah (swt) also says “We have revealed the Book to you with the Truth, so that you judge between people by what Allah has shown you” (TMQ 4:105).

This is a general address that includes Muslims and non-Muslims alike, because the word “people” in “so that you may judge between people…” is general. As for His (swt) saying “They are fond of listening to falsehood and devouring anything forbidden. If they do come to you, either judge between them or decline to interfere” (TMQ 5:42), this means that if one were to come to the Islamic State from abroad seeking the arbitration of the Muslims in a dispute with another disbeliever or other disbelievers, the Muslims in this case are given the choice of either judging between the disputing parties or declining to do so. This is since the verse was revealed concerning those whom the Messenger of Allah  had made peace with and signed treaties with from among the Jews of Madinah who were living as tribes and they were considered as other states. They were not under the authority of Islam; rather, they were other states. Thus, he  had signed treaties with them. However, if they were under the authority of Islam, such as the Dhimmi, or if they came as asylum seekers, it would be forbidden to judge between them by other than Islam. The one who refused to refer to the rule of Islam, would be forced to by the ruler and the ruler would punish him for it.

It is forbidden to conclude an indefinite Dhimmah oath with the disbeliever unless two conditions are fulfilled. Firstly, that Dhimmis adhere to paying the Jizya each year, and secondly that they abide by the rules of Islam i.e. the acceptance of what is enforced upon them in terms of executing orders and abstaining from prohibitions. This is due to the words of Allah (swt): “Until they pay the Jizya with willing submission and feel themselves subdued.” (TMQ 9:29), meaning until they submit to the rules of Islam. In addition, the Messenger of Allah  used to implement the rules of Islam upon them. Al-Bukhari transmitted through Ibn Umar: “The Jews came to the Prophet  with a man and woman from amongst them who had committed adultery and so he stoned them”, and Al-Bukhari reported through Anas: “The Prophet killed a Jew for the sake of a woman who was killed for her ornaments”. Those Jews were subjects of the Islamic State. Also, the Messenger of Allah  wrote to the people of Najran who were Christians saying: “He who deals in usury from amongst you, shall be denied the Dhimmah” reported by Ibn Abu Shaybah through al-Shu’bah (Mursal narration). All this serves as evidence about the obligation to implement all the rules of Islam upon all of the subjects without any difference between Muslims and non-Muslims. It is on this basis that clause A of this article has been drafted.

As for clause B, the general order regarding the implementation of all the rules of Islam is mentioned in Allah’s (swt) saying “And Judge between them by what Allah has revealed” (TMQ 5:48). This general rule has been specified by Shari’ah; excluding the ‘Aqidah they embrace, the rules which are to them a matter of faith and the rules pertaining the actions which the Messenger of Allah  has allowed them to perform. The‘Aqidah and all of these rules have been made an exception by Islam through a host of clear texts. Allah (swt) says: “There is no compulsion in the Deen” (TMQ 2:256), and the Messenger of Allah  said: “He who has embraced Judaism and he who has embraced Christianity should not be coerced away from their faith, and he must pay Jizya” transmitted by Abu Ubaid in Al-Amwal through ‘Urwah. Hence, any action which is considered as a matter of faith to them should not be interfered with by us and we should allow them to practise what they believe, even if this were not part of ‘Aqidah matters in our Deen. Additionally, we should also not interfere with them in regard to any actions that the Messenger of Allah  allowed them to perform, such as drinking alcohol and getting married, within the scope of the general system. In other words, it is permitted for them to drink alcohol in their private lives but not in the general affairs where they mix with the Muslims such as the general markets and the like.

As for Clause 'C' of this article, Islam has decreed a host of rules regarding the apostate, amongst them that the apostate should be killed he or she does not repent since the Messenger of Allah  said: “Kill the one who changes his Deen”  (transmitted by Al-Bukahri through Ibn Abbas). Anas reported: “I came to Umar who said: O Anas, what happened to the six from Bakr Ibnu Wa’il? So I said: O Amir of the believers, they were killed in the battle. Upon this Umar recited Allah’s (swt) saying: “To Allah we belong and to Him we will return”. So I said: “Could they have been dealt with by other than death? He said: “Yes, I would have invited them to Islam and had they refused, I would have thrown them in jail” as reported by Al-Bayhaqi. In other words, until they repent and if they did not, they would be killed. This is because the apostate would be invited to Islam and all the means of repentance would be exhausted, and if he still refused he would then be killed. An apostate should not be killed just for apostatising due to what is narrated from Jaber: “A woman, Umm Marwan, apostatized so Allah ordered that she should be presented Islam, and if she repented (it is accepted) and otherwise she is to be killed” reported by Al-Bayhaqi and Al-Daraqutni. This narration is used by masses of Fuqaha’; - Ibn Qudamah uses it as evidence in Al-Mugni, Al-Mawardi in Al-Hawi Al-Kabir and Al-Ahkam Al-Sultaniyyah, Abu Ishaq Al-Shirazi uses it in Al-Muhadhdhab, Al-Rafi’i in al-Sharh al-Kabir, al-Baghawi in al-Tadhhib and Ibn al-Jawzi in al-Tahqiq; so it is considered from the Hasan (acceptable authority) narrations and is acted upon – in other words he is asked to report before execution.

Rulings of Clause 'C' are all about the apostate himself; they are not about his children. However, if a Muslim apostatised from Islam and remained upon the faith to which he apostatised, for example he continued to be a Christian, a Jew or a polytheist, and he were then to have children who had the same faith, would his children be considered as apostates? And would they be treated as apostates? Or would they be considered as being of the faith they had at birth?

The answer is that the children of the apostate who are born before their father’s apostasy are considered as Muslims without any doubt. However, if they were to follow their father and apostatise as well, they would be treated as apostates. If they were born after he had apostatised from a disbelieving or an apostate wife, these children would be considered as disbelievers and not as apostates; thus, they would be treated just like the people of the faith they inherited at birth. Hence, every child born after his father’s apostasy from a disbelieving wife or an apostate wife, would be judged as a disbeliever since he or she would have been born from two disbelieving parents. Therefore, if the two parents became Jews or Christians i.e. from the People of the Book, he or she would be treated as the People of the Book would be treated, and if the two parents became polytheists, he or she would be treated as a polytheist. This is so because Ibn Mas’ud reported: “when the Messenger of Allah  wanted to execute your father (Uqbah Ibn Abi Mu’it), the latter said: “What about the children?” He  said: “Hell fire” (reported by Abu Dawud, Al-Hakim authenticated it, and Al-Dhahabi agreed with him).  In the narration of Al-Daruqutni: “Hell fire for them and for their father”. It is also the case since in Sahih of Al-Bukhari in the section of the people of the abode, in the book of Jihad, “The Messenger of Allah  passed al-abwa – or biwaddan – and was asked about the people of the household, the women and family of the polytheists who were killed with their fathers; he said: They are of them”. Therefore, every child born to two disbelieving parents is considered a disbeliever and the rule pertaining to the disbelievers applies to him.

Hence, those who apostatised from Islam and became non-Islamic sects, such as the Druze, the Bahai’, the Qadiani and the like, are not treated as apostates since they didn’t apostatise but their ancestors were the apostates and they were therefore born with two disbelieving parents. Thus, they are judged as disbelievers and they will be treated as such. Moreover, since they have not apostatised to a faith from among the People of the Book i.e. they have not apostatised to Christianity or to Judaism, they will be therefore treated as polytheists. Hence, their slaughtered meat will not be eaten and their women will not be wedded since the non-Muslims are either considered to be People of the Book or polytheists and there is no third category. This is why the Messenger of Allah  said about the Magi of Hajar as narrated by Al-Hasan Bin Muhammad Bin Al-Hanafiyya: “Whoever embraces Islam then accept them, and whoever does not then impose Jizya upon them, but do not wed their women or eat their slaughtered food” (Al-Hafiz said in Al-Dirayah: “narrated by ‘Abd Al-Razzaq and Ibn Abi Shaybah, it is a Mursal narration with a good chain”).  As for those who apostatised from Islam and became Christians - as in the case in Lebanon with the family of Shihab; this family’s forefathers were Muslims and they apostatised to Christianity and their children were born as Christians - these people and their like will be treated as People of the Book.

As for Clauses 'D' and 'E', their evidence is derived from the fact that the Messenger of Allah  allowed the Jews and the Christians to drink alcohol and accepted their marriage and divorce proceedings; thus, his acceptance serves as a specification of the general rule. However, the approval of the Messenger of Allah  with regard to the disbelievers’ marriage is given only when the two spouses are disbelievers, but if the husband were Muslim and if the wife were either Christian or Jew, the rules of the Shari’ah would then be applied upon both of them. It is not feasible for the wife to be Muslim and the husband to be disbeliever for this is unlawful. Allah (swt) says: “Then do not send them back to the disbelievers, they are not lawful wives for them nor are the disbelievers lawful husbands for them.” (TMQ 60:10). Therefore, it is forbidden for a Muslim woman to marry a non-Muslim, and if she did her marriage would be unlawful.

As for Clause 'F', the evidence with respect to the implementation of all the rules of Islam is derived from all what has just been mentioned that the disbeliever is obligated to abide by the foundations and the branches, thus, he is commanded to submit to all the rules of Islam. This is general, and it includes the Dhimmi and the non-Dhimmi from among those who live under the authority of Islam. Hence, all the disbelievers who enter Dar Al-Islam must be subjected to the rules of Islam except the ‘Aqidah matters, the rules related to ‘Aqidah matters and any action which the Messenger of Allah  allowed them to do whether these disbelievers were Dhimmi, under covenant or asylum seekers. However, the ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them for they would be given what is known as diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wa’il who said: “Ibn Nawwaha and Ibn Uthal came to the Messenger of Allah  as envoys of Musaylima - the liar - and the Messenger of Allah  said to them “Do you bear witness that I am the Messenger of Allah?” They said “We bear witness that Musaylima is the Messenger of Allah.” Upon this the Messenger of Allah  “I give you security by Allah and His Messenger. If I were to kill an envoy I would have killed the two of you” (reported by Ahmad and declared Hasan by Al-Haythami). So, this narration indicates that it is not permitted to kill the envoys of the disbelievers and nor to apply the punishments (uqubat) upon them. However, this is exclusively applicable upon those who have the capacity of an envoy such as the ambassador and the “Chargé d'affaires” and the like. As for those upon whom the capacity of an envoy does not apply such as the Consul and the Commercial Attaché and the like, they would not have any immunity for they do not have the capacity of an envoy. This matter should be referred to the international convention because it is a terminological expression whose reality should be understood by way of looking into the convention and it is part of establishing the Manat (reality); in other words establishing whether they are considered envoys or not.

Article 8

The Arabic language is exclusively the language of Islam and it is the only language used by the State.

The evidence of this article is derived from the fact that although all people are addressed by the Quran as Allah (swt) says “And We have explained to man in this Quran every kind of similitude” (TMQ 17:89), “And We have propounded for people in this Quran every kind of parable” (TMQ 30:58), Allah (swt) has however revealed it in Arabic and made it an Arabic Quran. Allah (swt) says: "an Arabic Quran" (TMQ 12:2) and Allah (swt) also says: "in the Arabic language" (TMQ 26:195).

Therefore, the Arabic language is the sole language of Islam because it is the sole language of the Quran and because the Quran is the miracle (Al-Mu’jizah) of the Messenger of Allah . The miracle of the Quran lies in the Quran’s expression with this Arabic wording; in other words with the Arabic wording and style. Although the miracle is found in both the wording and the meaning inseparably, what is meant by its miracle in meaning is not the miracle of what the Quran has brought in terms of meanings and topics for the Sunnah has expressed these meanings and topics and yet it is not considered a miracle. The miracle in meaning is established through the fact that the meaning is itself expressed by this wording and this style. Hence, expressing such a meaning in such a wording and in such a style is miraculous. Therefore, the miracle lies in the Arabic wording that expresses the meaning with the Arabic style. In other words, Allah’s (swt) saying: “If you fear treachery from any group, throw back their covenant to them so as to be on equal terms” (TMQ 8:58) is in itself incapacitating to all people to produce something similar. Its miracle comes from the splendour in expressing these meanings with this formulation and with such a style. Thus, the miracle was the Arabic wording and the Arabic style that expressed this meaning. Therefore, the miracle in the Quran is confined in its Arabic for it is the origin of the miracle and the subject of the challenge to produce something equal to it. Hence, the Arabic language is an integral part of the Quran that cannot be separated from it. The Quran itself could not be considered Quran without it. It is therefore forbidden to translate the Quran for if it were altered it would lose its order and it would no longer be the Quran or be like the Quran; it would rather be a commentary of it, and if its commentary were anything like it then people would not have failed to produce something equal to it when they were challenged to do so. Besides, Allah’s (swt) saying “An Arabic Quran” means that if it were not Arabic it could not be called Quran. Furthermore, we worship Allah (swt) with its wording; therefore, the prayer would not be correct without it since Allah (swt) says: “So read of the Quran as much as may be easy for you.” (TMQ 73:20) and the Messenger of Allah  said: “A prayer is not accepted from he who does not recite the Fatiha of the Book in every Raka’ah” (agreed upon through ‘Ubadah). Therefore, the Arabic language is an integral part of Islam.

As for Allah’s (swt) saying: “This Quran has been revealed to me that I may warn you and all whom it reaches.” (TMQ 6:19), this means: so that I warn you with what is in the Quran, and this applies to warning people with its wording and with its commentary for all of this is considered as warning. By contrast, Allah’s (swt) saying: “Read” does not refer to the reading of its commentary and nor does it refer to the reading of its translation, because reading a book means reading its text, and not its translation or commentary. This is therefore not akin to warning with the Book, which means warning with its text and its contents. Besides, Allah (swt) had decreed that the warning of the Messenger of Allah  is made in Arabic as Allah (swt) says: “With it came down the Faithful Spirit; to your heart so that you admonish; in a clear Arabic language.” (TMQ 26:193-5). This serves as a conclusive evidence that it is forbidden to read the Fatiha in prayer in other than the Arabic language, and this nullifies and refutes the argument of those who claimed that the verse in which Allah (swt) says: "And this Quran has been revealed to me" (TMQ 6:19) refers to the permissibility of reading the Fatiha in other than the Arabic language for those who do not master Arabic.

This is from the fact that the Arabic language being a fundamental part of Islam. As for the evidence pertaining to the fact that the Arabic language should be exclusively the official language of the State, the evidence for it is that when the Messenger of Allah  sent letters to Caesar, Kisra and Muqawqas in which he invited them to Islam, those letters were written in Arabic though they could have been translated into their own languages.  Although Caesar, Kisra and Muqawqas were not Arabs and although the Messenger of Allah  wrote the letters to convey Islam to them, the Messenger of Allah  didn’t write his letters in their languages. Hence, this serves as evidence that the Arabic language is exclusively the official language of the State because the Messenger of Allah  did this. Besides, the fact that the need to translate in order to convey Islam was pressing but the Messenger of Allah  did not translate serves as an indication for the obligation of restricting the State’s address of people to the Arabic language whether the addressees were Arabs or non-Arabs. Therefore all non-Arab people should learn the Arabic language and it is forbidden for the State’s official language to be other than the Arabic language.

Imam Al-Shafi’i outlined in his celebrated book of Usul (foundations of jurisprudence) entitled Al-Risalah the following: “Allah (swt) has made it an obligation upon all nations to learn the Arabic tongue following their address with the Quran and their worshipping by it”.

Therefore, all this makes it obligatory for the State to adopt the Arabic language as the exclusive official language.

However, it must be made clear that adopting the Arabic language exclusively as the State’s language does not necessarily mean that the State could not use other than the Arabic language since it is permitted for the State to use other than the Arabic language in an official correspondence either for fear of distortion, to acquire vital information, to convey the call to Islam abroad or for any similar reason. This is the case because the Messenger of Allah  used Hebrew and Syriac. Hence, the ruling stipulates the sole use of the Arabic language when adopting the State’s official language rather than preventing the State from using other than the Arabic language.

The question that comes to mind now is: Would it be permitted to have a written and spoken language other than Arabic in the lands ruled by the Islamic State?

The answer to this is that the speaking and the writing of other languages could either be related to the State itself, to the subjects’ relationship with the State, to the subjects themselves or to individuals with one another.

If it were related to the State itself or to the State’s relations, then in this case it would not be permitted for the language to be other than the language of the state (the Arabic language). This is because the Messenger of Allah  did not translate his letters to the non-Arabs despite the pressing need to translate in order to convey Islam and this serves as evidence stipulating the obligation of the sole use of the Arabic language in the State’s administration and relations or in anything related to it.  Based upon this, the State would not have any place in its educational curricula to teach any other language apart from Arabic whether these were the languages of the non-Arab peoples living under the authority of the Islamic State or the peoples living outside the authority of the Islamic State. In the same manner, public schools are prevented from adopting anything other than the Arabic language as an academic language and from introducing other than the Arabic language as a subject because they are obliged to adhere to the State’s curricula. Accordingly, every matter related to the State, to its relations, the relations of its subjects with it or any other matter related to it must be conducted solely in the Arabic language, spoken and written.

However, if speaking and writing in other than the Arabic language were related exclusively to the subjects or related to people’s relationships amongst themselves, this would be permitted because the Messenger of Allah  permitted the translation of other languages into Arabic and permitted the learning of other languages. This indicates that it is permitted to speak and to write in other than Arabic. In a narration from Zayd Ibn Thabit: “The Messenger of Allah  ordered me to learn the Book of the Jews, until I became able to write the letters of the Messenger of Allah  and to read to him their letters if they wrote to him” transmitted by Al-Bukhari. So, this is an evidence for the permissibility of speaking and writing in other than the Arabic language. In the times of the Companions, there were people who used to speak and to write in other than Arabic and they were not forced to learn it, and someone used to interpret for the ruler.

Al-Bukhari reported in the section “History of the Rulers”: “Kharija Bin Zaid Bin Thabit from Zaid Ibn Thabit said: “The Messenger of Allah  ordered me to learn the Book of the Jews, until I became able to write the letters of the Messenger of Allah  and to read to him their letters if they wrote to him”. Umar (ra) said in the presence of ‘Ali, ‘Abd al-Rahman and Uthman: “What is this woman saying?” Abdul-Rahman Ibnu Hatib said: “She is informing you about the man who did so and so to her.” Abu Hamzah also said: “I used to translate between Ibn Abbas and other people”.

Two evidences that indicate the permission of translation are: the narration in which the Messenger  ordered Zaid Bin Thabit to learn the Book of the Jews and when Umar (ra) asked what that woman was saying - he meant the woman who was found pregnant - ‘Abd al-Rahman was translating for him. The fact that Abu Hamza used to translate what people would say for Ibn ‘Abbas means that there were people who spoke other than Arabic. Therefore, speaking and writing in other than Arabic is permitted according to the Sunnah and to the actions of the Companions. Accordingly, the State would allow the publication of books, newspapers and magazines in other than Arabic, and their publication would not require a permit because it is part of the Mubah (permitted) actions. It is also allowed to televise programmes in other than Arabic if these stations belonged to an individual or to a group of people. However, this will be prohibited in the State’s own radio and television stations because everything related to the State must be exclusively in Arabic. As for what is related to people among themselves, it will be permitted for them to use other than Arabic in everything except for any specific issue which was in origin permitted that may lead to harm; in such case, that matter will be prohibited.

Article 9

Ijtihad is a duty of sufficiency and every Muslim reserves the right to perform Ijtihad provided he meets all its prerequisites.

The Islamic Shari’ah has made Ijtihad to deduce the Shari’ah rules from the address of the Legislator – i.e. from the Shari’ah texts which are revealed by Allah (swt) to the Messenger of Allah  - an obligation upon the Muslims. The fact that Ijtihad is an obligation has been confirmed through several narrations. The Messenger of Allah  said: “If a ruler were to give a ruling, so he made Ijtihad and reached the sound rule, he would get double the reward. However, if he were to give a ruling and he made Ijtihad but reached the wrong rule, he would still get a reward”  (agreed upon through Amru Bin Al-Aas). He  also said: “and a man judged people without knowledge, he is in Hell fire” (transmitted by the compilers of the Sunan and Al-Hakim and Al-Tabarani with a Sahih chain). This confirms that the judge must be acquainted with what he judges on. It is also reported that he  said to Ibn Mas’ud: “Judge by the Book and the Sunnah wherever you found (the ruling) in them, and if you don’t find the ruling in them then do Ijtihad” as mentioned by al-Amidi in al-Ahkam and al-Razi in al-Mahsul. He  said to Mu’ath and Abu Moussa Al-Ash’ari when he was about to dispatch them to Yemen: “What will you judge by?” They said: “If we did not find the rule in the Book or in the Sunnah, we would make analogy between the two matters and whichever were closest to what is right, we would act upon” (mentioned by Al-Amidi in aAl-Ahkam and Abu Al-Husain in Al-Mu’tamad). This analogy is in itself an Ijtihad to deduce the rule, and the Messenger of Allah  approved it. It is also reported that the Messenger of Allah  said to Mu’ath when he appointed him as governor to Yemen: “What will you rule by?” He said: “By the Book of Allah.” He  said: “What if you do not find the rule?” He said: “By the Sunnah of the Messenger of Allah.” He said: “What if you do not find the rule?” He said: “I will exert my own opinion.” Upon this the Messenger of Allah  said: “Praise be to Allah Who guided the envoy of the Messenger of Allah to what satisfies His Messenger” (transmitted by Ahmad and Al-Tirmidhi and Al-Darimi and Abu Dawud and was authenticated by Al-Hafiz Ibn Kathir Al-Basrawi who said that the narration is Hasan Mashur and relied upon by the scholars of Islam).

This clearly indicates the approval of the Messenger of Allah  with regard to Mu’ath’s performance of Ijtihad. Furthermore, the knowledge of the rules is linked and is related to Ijtihad since the realisation and the comprehension of the rules could not be established without it. Hence, Ijtihad becomes obligatory because the Shari’ah principle stipulates: “Whatever is necessary to establish a duty is in itself a duty”.

In origin, the deduction of the rules is performed by Mujtahideen (those capable of Ijtihad) because the knowledge of Allah’s rule in a given matter cannot be reached except through Ijtihad, and Ijtihad therefore becomes indispensable. The scholars of Usul Al Fiqh (the principles of jurisprudence) have indicated that Ijtihad is a duty of sufficiency upon the Muslims and that it is forbidden for Muslims to be without a single Mujtahid at any given time, and that if they all agreed upon forsaking Ijtihad, they would be sinful because the only way to know the Shari’ah rules is through Ijtihad. Therefore, if an era were devoid of at least one Mujtahid upon whom it could be relied in perceiving the rules, it would lead to the paralysis of the Shari’ah and this is forbidden. Besides, the Shari’ah texts make it incumbent upon Muslims to perform Ijtihad because these Shari’ah texts (i.e. the Book and the Sunnah and nothing else) have not come in a detailed manner but rather in a general manner that can be applied to every reality faced by humanity. Their understanding and the deduction of the rule of Allah require the exhausting of efforts in order to obtain the Shari’ah rule from them for every matter. This Ijtihad is not an impossible task nor is it extremely difficult; rather, it is the process of exhausting one’s effort in order to acquire the Shari’ah rules with the least amount of doubt. In other words, it is the understanding of the Shari’ah texts with the exhausting of one’s utmost effort in order to attain this understanding and to perceive the Shari’ah rule. This is in fact within everyone’s reach. Ijtihad was natural and evident to the Muslims in the early times and it had no prerequisites. However, since the understanding of the classical Arabic language started to weaken and since people started to devote less attention to discerning the Deen, it has become incumbent upon the Mujtahid to know the narrated evidences (adillah sam’iyyah) from which the principles and the rules are deduced. It has also become incumbent upon him to discern the meaning of expressions which are commonly used in the classical Arabic language and in the usage of rhetoric. There are no other conditions apart from these two to performing Ijtihad. Therefore, in addition to being a duty of sufficiency upon the Muslims, Ijtihad is within the reach of all the Muslims. These are all the evidences for this article.

Article 10

All the Muslims should bear the responsibility of Islam. There are no clergymen in Islam and the State should prohibit any sign of their presence among the Muslims.

Although Mujtahids are scholars, however not every scholar is necessarily a Mujtahid since a scholar could either be a Mujtahid or a Muqallid (imitator). If the Muslim were to take the Shari’ah rule in order to act upon, then, it requires some consideration: if he took the rule from a Mujtahid, he in this case would be emulating the Mujtahid. If he took it from a non-Mujtahid, he would be learning that rule from the person he had taken it from, and he would not be emulating him. However, if the Muslim was to take the rule in order to learn it, he would be learning the rule irrespective of whether he took it from a Mujtahid or a non Mujtahid. Therefore, these scholars - whether Mujtahids or otherwise - are not clergymen since none of them has any right to legitimise or prohibit anything and they are just like any other Muslim regarding every single Shari’ah rule. None of them should distinguish himself from the rest of the Muslims in anything with regards to the Shari’ah rules regardless of how high his rank is in terms of knowledge, Ijtihad and respect. Hence, what is haram for others does not become allowed for the scholar and nor does the wajib upon others become mandub (recommended) for him. He is rather like any other individual Muslim. Therefore, the idea of clergymen held by Christians has no existence in Islam. The concept of clergymen is specific to Christians because a clergyman does legitimise and prohibit rules to them. Thus, attributing such a term to the Muslim scholar might give the impression of attributing the Christian concept to the Muslim scholars despite the fact that Muslim scholars do not allow and nor do they prohibit anything. Therefore, it is not fitting to attribute the term of clergyman to a Muslim scholar.

There are explicit narrations prohibiting the emulation of Christians and Jews. Abu Sa’id Al-Khudri narrated that the Messenger of Allah  said: “You shall follow the ways of those before you inch by inch and yard by yard; even if they were to enter a lizard’s hole you would follow them. We said: O Messenger of Allah, the Jews and the Christians? He (saw) said: Who else?” (Agreed upon with the words from Muslim) This narration has been said within the context of prohibition. Hence, the emulation of the Jews and the Christians is - as it stands - prohibited, let alone if this emulation were to lead to the generating of a Kufr concept among the Muslims. Considering the Muslim scholar as a clergyman is an emulation of the Christians who regard their scholars as clergymen and it also transfers the Christian concept of clergyman to the Muslim scholar; therefore, it is strictly prohibited in terms of emulation and it is classified as even more strictly prohibited in terms of introducing the concept. Therefore, it would be wrong to refer to the Muslim scholar as a clergyman and it is forbidden for the scholars to consider themselves as clergymen according to the Christians’ concept of clergyman. If someone was found claiming this according to the understanding mentioned, he will be prohibited and punished since he will have committed a prohibited act. In addition,  the Prophet  did not differentiate from the companions in terms of a specific dress or appearance. Al-Bukhari reported in his Sahih from Anas Bin Malik who said: “While we were sitting with the Prophet  in the mosque, a man entered upon a camel into the mosque, then he tied it and said to them:  "Which one of you is Muhammad?" The Prophet  was leaning between us so we said: "this white man who is leaning". And so the man said to him: "O Ibn ‘Abd Al-Muttalib" Then, the Prophet  said to him: "I have answered you…"” For these reasons, this article has been drafted.

Article 11

Conveying the Islamic Da’wa (call to Islam) is the fundamental task of the State.

This article has been drafted because as well as being an obligation upon the Muslims, conveying the Islamic Da’wa is also an obligation upon the State. Although conveying the call to Islam forms a part of the implementation of Shari’ah in the relationships and although it is a Shari’ah rule that the State must implement as the individual Muslim does, it is considered as the basis upon which its relationships with other states is built. In other words, it is the basis upon which the whole of the State’s foreign policy is built. Therefore, conveying the Islamic Da’wa is the State’s main task.

The evidence that conveying the call to Islam is an obligation is reflected in the words of Allah (swt) “And this Quran has been revealed to me so that I warn you with it and those whom it reaches” (TMQ 6:19); meaning to warn whoever this Quran reaches. Hence, the warning is to you Muslims and it is also a warning to those whom you convey it to; thus, it is an invitation to them to convey it on behalf of the Messenger of Allah . In other words, it is not only a warning to you but rather a warning to you and to all those whom the Quran reaches. The Messenger of Allah  said: “May Allah brighten a person who had heard my saying, perceived it, memorised it and conveyed it; for one may be conveying Fiqh (knowledge) to someone who is more of a Faqih than him” (in Musnad Al-Shafi’i through ‘Abd Allah Bin Mas’ud).  Allah (swt) also said "Let there arise from among you a group calling to the goodness” (TMQ 3:104), and the goodness is Islam. He (swt) also says "Who is better in speech than one who calls to Allah" (TMQ 41:33), in other words to the Deen of Allah. All of these texts indicate that conveying the call to Islam is obligatory and this obligation is general and encompasses the State as well as the Muslims as a whole.

As for the fact that conveying the Da’wa must be the State’s main activity, its evidence is derived from the words and actions of the Prophet . He  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, with the wording from Muslim). Al-Bukhari reported from ‘Urwah B. Al-Ja’d from the Prophet : “The horse which is tied to its forelock is good until the day of Judgement” and the horse is an allusion to the continuation of the obligation of Jihad. Additionally, Jihad is not restricted to whether the leader is righteous or immoral since it also indicates the continuation of the Jihad with the righteous and immoral as long as they are Muslim. Al-Bukhari used this narration as evidence for Jihad continuing with the righteous and the immoral leader when he separated a section with the title “Chapter Jihad Continues with the Righteous and the Immoral due to the words of the Prophet  “The horse which is tied to its forelock is good until the day of Judgement””. Ahmad also used it as an evidence in the same manner as Al-Bukhari. And in the same manner, it is reported by Said Bin Mansur through Anas who said that the Messenger of Allah  said “and Jihad has been on-going since Allah sent me and will continue until the last generation of my Ummah fight the Dajjal; it shall not be discontinued by the tyranny of a tyrant nor by the justice of a just”. This Hadeeth was also narrated by Abu Dawud and Al-Tirmidhi didn’t comment on it). So the order to fight until those who resist say that there is no god but Allah and that Muhammad is the Messenger of Allah, serves as evidence about the obligation of conveying the call to Islam upon the State. The fact that this conveying, which is Jihad, is ongoing until the last of the Ummah fights the Dajjal is evidence that the State’s constant activity is Jihad that is not permitted to be disrupted. The two narrations together indicate that the call to Islam is a constant action that is not to be interrupted; therefore, it is the main duty because the main duty is the action that is constantly performed under all circumstances and without any disruption.

Besides, the Messenger of Allah  was in a constant state of Jihad ever since he settled in Madinah until he  departed this world and Jihad was the main activity. The rightly guided Khulafaa’ came after him and followed in his footsteps assuming Jihad as their main duty. So the State that the Messenger of Allah  founded and headed undertook Jihad as its main duty; when he (saw) departed, the State was headed by the Khulafaa’ from among the Companions and similarly the State’s main task was Jihad. Therefore, the evidence stipulating that conveying the Islamic Da’wa is the State’s main task is derived from the Sunnah and the Ijma’ of the Companions.

Additionally, the Messenger of Allah  used to convey the call to Islam since Allah (swt) sent him as a Prophet until he departed this world. He  was the Head of State in Madinah and since he settled there he made his foreign policy the main activity and the State’s focus of attention. The activities undertaken ranged from raids, expeditions, intelligence gathering and signing treaties. All these activities were for the sake of conveying Islam and its Da’wa to all people. When the Messenger of Allah  sensed the strength of the State and its ability to convey the Da’wa internationally, he dispatched twelve envoys simultaneously to twelve monarchs inviting them to Islam, amongst them the Kings of Persia and Rome. Muslim reported from Anas Bin Malik: “The Prophet of Allah wrote to Kisra and Caesar and Al-Najashi and to every powerful one calling them to Allah”. When he  was satisfied about the might of the State within the Arabian Peninsula and about the spread of the Da’wah among the Arabs and people started to embrace the Deen of Allah (swt) in droves, he  looked towards conquering the Romans; hence, the battles of Mu’ta and Tabuk took place. This also serves as evidence that conveying the Da’wa is an obligation upon the State and that it is its main task.

Article 12

The Book, the Sunnah, the Ijmaa’ of the Sahabah and the Qiyas (analogy) are the only evidences considered in Shari’ah laws, and it is not permitted to adopt any legislation from other than these evidences.

                                   

This article does not imply that the State will adopt a method of Ijtihad; it rather means that the State will follow a specific method when adopting the Shari’ah rules. This is because the adoption of the Shari’ah rules could either be obligatory in some cases or, in other cases, permitted for the State. If this adoption were to be conducted in two contradictory methods, it would lead to a contradiction in the basics upon which the adoption has been conducted. Therefore, the State ought to adopt a specific method in adopting the Shari’ah rules. Three reasons prompted the adoption of such a method in the adoption of rules:

Firstly, the rule by which the Muslim should proceed is a Shari’ah rule and not a rational rule; in other words, it is the rule of Allah in the matter and not the rule laid down by man. Therefore, the evidence from which this rule is deduced must be what the Revelation has brought.

Secondly, the confirmation that the evidence - from which the rule has been deduced - has been brought by way of Revelation must be conclusive. In other words, it is imperative that the evidence, from which the Shari’ah rule has been deduced, has conclusive and decisive, not indefinite, evidence that it has been brought by way of Revelation. This is because it is part of the Usul (foundations) and not part of the branches; thus, to be most likely or probable is not sufficient since it is part of the ‘Aqidah matters and not part of the Shari’ah rules. This is so because the evidence required to deduce the rule from is evidence which has come by way of Revelation, not just any evidence. Therefore, it is imperative to decisively confirm that it has been brought by way of Revelation and the process of confirming that it has been brought by Revelation is an ‘Aqidah matter not a Shari’ah rule. Therefore, it is imperative to establish that the evidence has come by way of Revelation by definite evidence because matters of ‘Aqidah can only be taken conclusively.

Thirdly, what is conclusive is that man’s behaviour in life proceeds according to his concepts about life. Although the viewpoint about life has the ‘Aqidah as its basis, it is nevertheless formed of a host of concepts, criteria and convictions which are existent in the Ummah. Not all of these thoughts, which are reflected in this host of concepts, criteria and convictions are part of the matters of ‘Aqidah. Rather, some of them are from the matters of ‘Aqidah and others are part of Shari’ah rules, and since rules are deduced with the least amount of doubt it is therefore feared that if the origin of the rules has not been conclusively confirmed as being brought by way of Revelation, then some of the non-Islamic thoughts may creep into the Ummah due to the presence of Shari’ah rules deduced from a foundation which Revelation has not brought in the first instance. If it is widespread and used over a long period of time it will influence the viewpoint about life held by the Ummah and consequently affects its behaviour. Accordingly, it is imperative to confirm that the evidences, upon which rules to be implemented by the State are deduced, must be those evidences brought by Revelation.

It is for these three reasons that the adoption of a specific method, according to which the Shari’ah rules are adopted, is imperative. As for the fact that the evidences are confined exclusively to the four general evidences mentioned above, this is confirmed through study. We have studied and scrutinised the evidences that have been confirmed by a conclusive evidence to have been brought by way of Revelation and we have not found anything other than these four at all.

As for the Quran, the evidence about the fact that it has been brought by way of Revelation from Allah (swt) in letter and spirit is conclusive. The miracle of the Quran serves as conclusive evidence that it is indeed the Word of Allah (swt) and not the word of man. Therefore, the conclusive evidence has been established that the Quran is the Word of Allah (swt). The Quran itself, which has been conclusively confirmed as being the Word of Allah by the evidence of the miracle, states that it is Revelation that descended upon the Messenger of Allah ; Allah (swt) says: “With it came down the Faithful Spirit * To your heart so that you  admonish” (TMQ 26:193-4);

 “And this Quran has been revealed to me” (TMQ 6:19);

 “Say I only warn you according to Revelation” (TMQ 21:45);

 “We have not sent down the Quran to you so that you become distressed” (TMQ 20:1);

 “As to you the Quran is bestowed upon you” (TMQ 27:6);

 “It is We Who have sent down the Quran in stages” (TMQ 76:23)

and “We revealed to you an Arabic Quran” (TMQ 42:7).

These are conclusive evidences establishing the fact that the Quran has been brought by way of Revelation from Allah (swt).

As for the Sunnah, the conclusive evidence about the fact that it is Revelation which has come from Allah (swt) in meaning, and that the Messenger of Allah  expressed it by his own words is what came clearly indicated in the Verses of the Quran. Allah (swt) says: “Nor does he speak of his desire. It is no less than Revelation sent down to him” (TMQ 53:3-4);

 “We have sent you Revelation as We sent it to Nuh and the prophets after him” (TMQ 4:163);

 “I only follow what is revealed to me” (TMQ 6:50);

 “Say truly I only follow what is revealed to me by my God” (TMQ 7:203);

 “Say I do but warn you according to Revelation” (TMQ 21:45)

And Allah (swt) says “and whatever the Messenger brought to you, take, and whatever he forbids you, abstain from it” (TMQ 59:7)

These are clear evidences denoting that whatever the Messenger of Allah  has uttered in terms of the Sunnah has come by way of Revelation; they also serve as clear evidences denoting that Allah (swt) has explicitly ordered us in the Quran to abide by what the Messenger of Allah  ordered us and to abstain from what he  prohibited for us. This command is general. Hence, the evidence about the fact that the Sunnah has come by way of Revelation is conclusive because it has been established by a conclusive Quranic text that is definite in its intended indication.

As for the Ijma’ of the Companions, which is considered a Shari’ah evidence, it means the general consensus of the Companions that such rule is a Shari’ah rule, or their general consensus that the rule pertaining such and such matter is so and so. Hence, if they unanimously consented about a certain rule as being a Shari’ah rule, their Ijma’ (general consensus) would be considered a Shari’ah evidence.

The evidence for this is reflected in two matters: firstly, Allah (swt) praised them in the Quran through a text that is conclusive and definite in meaning. Allah (swt) said: “The vanguards and the first from among the Muhajirin and the Ansar, and those who followed them in all the good deeds, Allah is well pleased with them as they are with Him, and He prepared for them gardens under which rivers flow so as to dwell therein forever; that is the great success.” (TMQ 9:100)

This praise by Allah (swt) of the Muhajirin (emigrants), the Ansar (Helpers) and those who followed them with righteousness, due to their emigration and their support, is a praise of the Companions because those praised are the Companions and the meaning of the verse is confined to them. This praise is for all of them and the truthfulness of those whom Allah (swt) praises in such a way is conclusive.

The second matter is that we have taken our Deen from those Companions since they are the ones who transmitted to us the very Quran that had descended upon our master Muhammad . Hence, if we assumed that a flaw were to creep into one single matter from among what they had agreed upon, this means that the flaw could creep into the Quran; in other words, the flaw could creep into the Deen which we had taken from them and this is impossible from the angle of Shari’ah. Therefore, although it would not be rationally impossible for the Companions to unanimously agree upon an erroneous matter - for this could happen since they are only human - however, this could not possibly happen to them from the Shari’ah point of view since if this were possible, it would then be possible for error to creep into the Deen. In other words, it would be possible for error to creep into the fact that this Quran that we have today is the very same Quran that descended upon our master Muhammad , and this is impossible from the Shari’ah  point of view; thus, it would be impossible for them to generally consent on something erroneous.

This serves as a conclusive proof that the Ijma’ of the Companions is a Shari’ah evidence. In addition, Allah (swt) says: “We have without doubt sent down the Quran and We will assuredly protect it” (TMQ 15:9). Therefore, Allah (swt) has promised to protect the Quran and he who transmitted this Quran is he who protected it; thus, this serves as evidence about the truthfulness of their Ijma’ in transmitting and compiling the Quran. Hence, it serves as proof about the soundness of their general consensus because if it were possible for their consensus to be flawed, it would be possible for the transmission of the Quran to be flawed and it would be possible for it to be unprotected. Therefore, since the non-protection of the Quran is impossible, as indicated by the Verse, then it is impossible for error to creep into its transmission or its compiling or its protection. Hence, the Ijma’ of the Companions is a conclusive evidence.

However, what should be made absolutely clear is that the Ijma’ of the Companions stipulating that such and such rule is a Shari’ah rule is simply uncovering an evidence; in other words, there exists for this rule an evidence derived either from the action, words or silence of the Messenger of Allah , and that the Companions transmitted the rule but did not transmit the evidence. Hence, their transmission of the rule discloses the fact that there exists an evidence for that rule. Therefore, their general consensus does not mean that their personal opinions are in agreement over a specific matter for their personal opinions are not Revelation and each one of them is not infallible; thus, a companion’s opinion cannot be regarded as a Shari’ah evidence. This is because the Shari’ah evidence must be brought by way of Revelation in order to be considered as Shari’ah evidence, and the Companions’ opinions are not like that; therefore, they cannot be considered as Shari’ah evidence whether these were the opinions upon which they agreed or the opinions over which they disagreed. For this reason, the Ijma’ of the Companions does not mean their agreement upon one single opinion, it rather means their general consensus about the fact that a rule is a Shari’ah rule, or such and such rule is a Shari’ah rule; in this case, it is not their opinion but rather a general consensus that it is from Shari’ah; hence, the Ijma’ of the Companions is simply uncovering an evidence.

As for Qiyas, it is also Shari’ah evidence. Linguistically it means estimating and in the Usul terminology it is the making of analogy between a known matter upon another known matter in order to either confirm a rule for both of them or to disclaim it for both of them due to a mutual factor between them. Thus, it is comparing the rule of a known matter to another known matter due to their association in the ‘Illah (the reason) of the rule. Accordingly it is the extending of the root to the branch or in other words the joining of the branch to the root. The meaning of carrying a known fact upon a known fact means that one of them shares the same rule with the other, so the rule of the root is established for the branch, and the branch shares the same rule as the root. This rule of the root could be a confirmation; Al-Bukhari reported from Ibn Abbas “A woman from Juhaynama came to the Prophet  and said: 'My mother made an oath to do the pilgrimage but she didn’t fulfil it before her death, so should I go on her behalf?' He  said: 'Yes, do the pilgrimage on her behalf – do you see that if your mother had a debt you would have paid it off, so repay the debt to Allah since Allah is more worthy of it being fulfilled'”. Here the Messenger of Allah  compared the debt to Allah to the debt of the human and stated that its settlement would suffice. In this instance, the rule is a confirmation that the settlement of the debt would suffice.

The rule of the root that is compared with could also be a disaffirmation as is the case in what is reported on the authority of Umar (ra) who asked the Prophet  about the kiss of the one who is fasting and whether it breaks the fast. The Prophet  then asked, “What if you rinsed your mouth out with water (while you were fasting), would that break your fast?” He replied “No” authenticated by Al-Hakim and confirmed by Al-Dhahabi.  Here the Messenger of Allah  compared the kiss of a fasting person to the rinsing out of one’s mouth in that it does not invalidate the fast. Hence, the rule in this context is a disaffirmation, in this case the non-invalidation of the fast.

The meaning of this analogy being based upon a common factor between the two matters is that the ‘Illah (Shari’ah reason) of the root is also found in the branch. It is on the basis of this ‘Illah that the carrying over takes place and this ‘Illah is the common factor between the compared and the compared with or in other words, between the root and the branch. An example of this is reflected when the Messenger of Allah  was asked about the purchase of dates by ripened dates:  “He said “Would the Rutab become lighter if it dried?” They said: “Yes.” So he  said “In which case, no” (reported by Abu Ya’la with these words from Sa’d Bin Abi Waqqas and authenticated by Al-Hakim and Ibn Hibban). Here, the Messenger of Allah  asked about the ‘Illah that exists in the usurious money, which is the increase, and whether it was also found in the sale of Rutab for dates, and when he  knew of its presence, he confirmed the rule of Riba (usury) for such as type of sale, and so he (said) “in which case, no”. In other words, it is forbidden to exchange such commodity as it is because it decreases in weight once it is dried; thus, the Messenger of Allah  asked about the mutual factor which is the Shari’ah ‘Illah of Riba.

This is the definition of Qiyas according to the Shari’ah. This definition has been obtained from the narrations of the Messenger of Allah . Ibn Abbas narrated: “A woman came to the Messenger of Allah  and said: “O Messenger of Allah, my mother passed away before being able to fulfil a fast that she had vowed to Allah. Do I fast on her behalf?” He  said: “What if your mother had a debt and you paid it off would that suffice her?” She said: “Yes.” He  said: “Then fast on behalf of your mother” (reported by Muslim).  It is narrated by ‘Abd Allah Bin Al-Zubair that a man asked the Messenger of Allah : “O Messenger of Allah, my father was an old man when Islam came, and could not ride an animal, do I perform Hajj on his behalf?” He  said: “What if your father had a debt and you paid it off on his behalf, would that suffice him?” He said: “Yes.” So he  said: “Then do perform Hajj on behalf of your father” (reported by Ahmad with a chain authenticated by Al-Zain, and reported similarly by Al-Darimi).

In these two narrations, the Messenger of Allah  linked the debt to Allah (swt) in fasting and in Hajj onto the debt to the human and they are both the linkage of a known matter upon another known matter, i.e. the association of the debt to Allah with the debt to the human in confirming that their settlement on one’s behalf would suffice. This is so because both of these matters are debts; thus the mutual factor between them is the debt and this is the ‘Illah and the rule that has been confirmed for both of them is the sufficing of the settlement. This is the reality of Qiyas according to the Shari’ah from the Shari’ah text. Therefore, this definition is a Shari’ah rule that must be implemented and it is the binding rule of Allah upon the one who deduces it and upon the one who imitates it either as a Muttabi’ (a Muqallid who queries the evidence) or as an ‘Ammi (a Muqallid who did not query the evidence). It is like any other Shari’ah rule, deduced from a Shari’ah evidence, because the Shari’ah definitions and principles deduced from the Shari’ah evidences are Shari’ah rules like all other Shari’ah rules.

This Qiyas is based upon the ‘Illah or in other words upon the common factor between the known linked matter and the known matter it is linked to; that is, between the root and the branch. Hence, if the ‘Illah is found, that is if the mutual factor is found between the compared and the compared with, then Qiyas can be done; otherwise, Qiyas does not take place at all. This ‘Illah would be considered a Shari’ah evidence if it were mentioned in a Shari’ah text or if it were analogous with what is listed by a Shari’ah text because the ‘Illah upon which the Qiyas is based has been mentioned by Shari’ah.

By contrast, if this ‘Illah were not mentioned in a Shari’ah text and it were not analogous with that which is listed in a Shari’ah text, such a Qiyas would not be considered a valid  Qiyas, nor a Shari’ah evidence. This is because the reason upon which it is based has not been mentioned by a Shari’ah text; thus such Qiyas could not be from Shari’ah and consequently it cannot be a Shari’ah evidence.

Evidence about this Qiyas being a Shari’ah evidence is reflected in the fact that the Shari’ah text in which the ‘Illah is mentioned or analogous with what is mentioned in the Shari’ah text could either come from the Book, the Sunnah or from the Ijma’ of the Companions. These three evidences have been confirmed as being Shari’ah evidences through conclusive proof; thus, the evidence of the Shari’ah ‘Illah is conclusive and that is the evidence of Qiyas. This is so because the Shari’ah reason found in the rule that is mentioned by the text, which acts as the root, is what makes the rule in the branch a Shari’ah rule and it is what makes Qiyas feasible for without it Qiyas would not have existed in the first place. Therefore, its evidence will also serve as evidence for Qiyas.

This Shari’ah Qiyas has been demonstrated to us by the Messenger of Allah  and he  considered it a Shari’ah evidence. The Companions also proceeded according to it and adopted it as a Shari’ah evidence when they deduced the Shari’ah rules. It has been reported that the Messenger of Allah  said to Mu’ath and Abu Moussa Al-Ash’ari when he was about to dispatch them to Yemen: “What will you judge by?” They said: “If we did not find the rule in the Book or in the Sunnah, we would make analogy between the two matters and whichever were closest to what is right, we would act upon it” (mentioned by Al-Amidi in Al-Ahkam and Abu Al-Husain in Al-Mu’tamid). Here Mu’ath and Abu Moussa explicitly stated that they would use Qiyas and the Messenger of Allah  approved  this; therefore this serves as proof that Qiyas is a Shari’ah evidence.

It is reported on the authority of Ibn Abbas that a woman came to the Messenger of Allah  and said: “My mother has died and she has a month’s fasting on her neck.” So the Messenger of Allah  said: “What if your mother had a debt, would you settle it?” She said: “Yes.” Upon this he  said: “Then the debt to Allah is more worthy of being settled” (reported by Al-Bukhari). Here the Messenger of Allah  wanted to teach this woman so he joined the debt to Allah to the debt of the human in the obligation of settling the debt and its sufficing, and this is exactly Qiyas itself. It is reported on the authority of Umar Bin al-Khattab (ra) who asked the Prophet  about the kiss of the one who is fasting and whether it breaks the fast. The Prophet  then asked “What if you rinsed your mouth out with water would (while you were fasting), would that break your fast?” He replied “No” (authenticated by al-Hakim and confirmed by Al-Dhahabi). Here the Messenger of Allah  rejected the rule of invalidating the fast for the act of kissing while fasting by comparing it with the act of rinsing out the mouth while fasting, which does not invalidate the fast, because neither of them enters the belly. Thus it was an explanation of the rule through the use of Qiyas.

In these three texts, the rule was not only given an ‘Illah, as in the case in many texts that denote Qiyas, rather, Qiyas itself was also approved, taught and explained through them and this serves as a valid argument stipulating that Qiyas is a Shari’ah evidence.

This is as far as the Messenger of Allah  is concerned. As for the Companions, it is reported that they used Qiyas as Shari’ah evidence in several matters. One example is what has been narrated by Said Bin Mansur in his Sunan from Al-Qasim Bin Muhammad “ A man died and left behind his two grandmothers, his mother’s mother and his father’s mother, and so Abu Bakr came and gave the mother of his mother a sixth and left the mother of his father, and so a man from the Ansar said to him: “You gave the inheritance of a dead man to a woman who if she had died, the same man would not have inherited her; and you excluded the woman whom the man would have inherited all her legacy had she been the one who died”, and so he divided the sixth between them” . This event was also mentioned by Al-Ghazali in Al-Mustasfa and Al-Amidi in Al-Ihkam. Here, the Companions compared the inheritance of the living from the dead with the inheritance of the dead to the living by assuming that the dead was living and the living was dead; thus, concluding that the mutual factor - the kinship between the two persons - is the same in both instances. When Abu Bakr heard this Qiyas, he submitted to it, implemented it and retracted from his own opinion.

Similar to this is what was reported that Umar (ra) wrote to Abu Musa Al-Ash’ari saying: “Get acquainted with the similar and the identical matters and then make analogy between the matters according to your opinion” (This was mentioned by Al-Shirazi in Tabaqat Al-Fuqaha’ and was narrated by Al-Bayhaqi in Al-Ma’rifa Min Kitab Adab Al-Qadi). Umar (ra) was the Amir of the believers while Abu Musa was a judge in this instance. Similarly, it was said to Umar (ra) that Samra had taken wine from Jewish traders as tithe which he then turned into vinegar and sold so Umar (ra) said: “May Allah damn Samra, did he not know that the Messenger of Allah  say: “May Allah curse the Jews; fats have been made unlawful to them, so they embellished them and sold them and ate from the proceeds” (reported by Muslim). Here, Umar (ra) compared wine with fat and concluded that its prohibition stipulates the prohibition of its sale. Another example is when Umar (ra) was not sure about the penalty of the seven who took part in the killing of one man so ‘Ali (ra) said to him: “O Amir of the believers! What if a group of people were to take part in a theft, would you cut their hands?” He said: “Yes.” So ‘Ali said to him: “So likewise” (mentioned by ‘Abd Al-Razzaq in Al-Musannaf). This is a Qiyas between the killing and the theft, and all this indicates that Qiyas is Shari’ah evidence deduced from the Sunnah and the Ijma’ of the Companions. Hence, what has been confirmed through the Messenger of Allah  is the Sunnah and what has been confirmed through the Companions is considered an “Ijma’ Sukuti” (Silent Consensus) because the Companions who utilised Qiyas did so in the presence and the full knowledge of the rest of the Companions, and none of them condemned it; therefore, it was a general consensus.

However, the Sunnah and the Ijma’ of the Companions have both been reported by way of individual report (Ahad narrations), thus they are considered as indefinite evidence. Therefore, the conclusive evidence about the fact that Qiyas is a Shari’ah evidence is reflected in what we mentioned with regard to the Illah being mentioned in the Shari’ah text, that is, in the Book and the Sunnah or in the Ijma’ of the Companions. These three evidences have been confirmed as being Shari’ah evidences by way of conclusive evidence. Therefore, they act as the evidence for Qiyas because they are the evidence for the Illah.

It has been conclusively established that these four evidences, the Book, the Sunnah, the Ijma’ of the Companions and Qiyas have come by way of Revelation from Allah (swt). Apart from these four, no other evidence has been established through conclusive evidence. The fact that they are not established by conclusive evidence is clear since those who use them as evidence do not claim that the proof that they are Shari’ah evidences is a definitive proof.  The fact that they are not confirmed as (decisive) Shari’ah evidences is clear from the lack of conformity of the evidences which they bring forward – in their consideration as Shari’ah proofs – upon the issue that they are trying to establish the evidence upon. In other words, it is clearly apparent that there is a mistaken inference in what they present from the evidences upon what they are claiming, such as: the consensus of the Muslims, Al-Masalih Al-Mursalah or Al-Istihsaan and similar to them from the Shari’ah evidences.

So, those who claim that the consensus of the Muslims is a Shari’ah evidence draw their conclusion from the words of the Prophet : “My Ummah will not gather upon a misguidance”. Ibn Hajr mentioned the narration as being Mashhur with many different paths, though all of them have debate around them, and in any case, this does not contain a proof since the misguidance here means apostasy from the Deen and not mistakes and with this meaning it was mentioned in the narration: “My Ummah will not gather upon a misguidance (Dalalah), and so stick to the group (Jama’at), since the Hand of Allah is with the group” (reported by Al-Tabarani with a chain whose men are all trustworthy through Ibn Umar). This is correct since the Islamic Ummah would never unite upon apostasy from Islam. However, they could possibly unite upon a mistake and the simplest evidence for that is that the Islamic Ummah united upon leaving behind the work to establish the Khalifah for a long period and that was consensus upon a mistake.

With respect to those who say that seeking the benefits and repelling the harms is a Shari’ah Illah for the Shari’ah rules and apply Qiyas accordingly, they infer this by the words of Allah (swt): “And we did not send you except as a Mercy to the ‘Aalameen (mankind and jinn and all that exists)” (TMQ 21:107). So, they consider the fact that he  is a mercy as a Shari’ah Illah, and there cannot be mercy except through the attainment of the benefits and the repulsion of harm, and therefore, it is a Shari’ah Illah for the legislation. This inference is incorrect from two angles; the first is that the subject was his  being sent, or in other words, the fact he  was a Messenger, and not the Shari’ah laws. If we submit that the intention of sending him  was his message i.e. the Shari’ah, the subject would be the whole of Shari’ah from the matters of ‘Aqidah and rules collectively and not the Shari’ah rules alone. The second issue is that the fact that sending him  as a mercy for the universe is only a clarification for the Hikma (wisdom) behind sending the Prophet ; in other words, what would occur as a consequence of sending him.  In the same manner, the words of Allah (swt): “And we did not create Jinn and Mankind except to worship” (TMQ 51:56), in other words, the result of creating them would be the worship so it is the Hikma of their creation and not the ‘Illah for their creation. Likewise His (swt) words: “That they may witness things that are of benefit to them” (TMQ 22:28). The verse describes the Hikma from the Hajj, that is, the result that may be gained from the Hajj. His Words,“Truly prayer prevents great sins and Munkar” (TMQ 29:45), describe the Hikma for the prayer; in other words, the result that may be reached from prayer and so on. So, the verse here is not in the context of specifying an Illah because the Illah is the thing that due to its presence the rule is found or, in other words, is legislated. In order to understand the underlying Illah in the text, it is imperative that it must be an attribute and this attribute must indicate the underlying ‘Illah, in that it is the Sabab (reason/cause) for the legislation or in other words that the legislation was for its sake, and in such a circumstance it is an inseparable attribute which is never absent, since the cause always results in the effect and therefore if the Illah is found then the effect is found.

The words “mercy for the ‘Aalameen” (TMQ 21:107) and the rest of the previous verses, even if they are considered as attributes and within the verses are the letters that would indicate an underlying Illah, the context of the words does not indicate the existence of an Illah because they could be absent and because the legislation was not for its sake. Accordingly, the Islamic Shari’ah could be a mercy for the one who believes in it and who acts according to it, such as: the first generations of Muslims, and it could be an affliction for whoever disbelieves in it, such as the disbelievers. So, the sending of the Messenger  is an affliction upon the disbelievers and they are from the ‘Aalameen. Additionally, the Islamic message is present today. This is since the sending has practically taken place and with that the Muslims who themselves believe in that message are today in hardship. So, it is not the sending alone, that is the existence of the Shari’ah alone, that is a mercy, and for that reason it is not an Illah for it. Based upon that, attaining the benefits and repelling the harms is not a Shari’ah Illah; so, it is not taken as a basis for Qiyas.

As for those who say that rationality is from the Islamic evidences, we say that the discussion is about the Shari’ah rule or what is considered, with the most probability, as the rule of Allah. This is not present except in what came by Revelation, and the Revelation did not mention the rationality, and for that reason, there is no evidence whether conclusive or inconclusive to be found that states that rationality is from the Shari’ah evidences for the Shari’ah rules; so it is not considered to be from the Shari’ah evidences at all.

With respect to those who say that the opinion of the companion is from the Shari’ah evidences, they deduce this by saying that the two evidences for the Ijma’ of the Companions are evidences for the single companion as well, since the praise for them (collectively) is also praise for one of them. In the same manner, since there cannot be shortcomings in their conveyance (of the Deen) collectively, there can be no doubt with respect to the conveyance of one person from amongst them. Additionally, the words of the Messenger of Allah , “My companions are like stars, whichever of them you follow you are guided”, support the opinion of a companion being an evidence. This deduction is incorrect since the praise of the Prophet  for the companions collectively not individually is a proof that the Ijma’ of the Companions is a Shari’ah evidence and the fact that the Companions did not convey the Quran individually is a proof that their consensus is a Shari’ah evidence. Rather, the Shari’ah evidence is the praise upon them and the fact that they collectively agree that a rule is the Shari’ah rule. So the evidence is two matters, praise and consensus and these are not found in the individual companion. In which case, the issue of praise and the conveyance of the Quran are not suitable to be proofs that the words of whoever conveyed the Quran from those whom Allah (swt) praised are Shari’ah evidences because in the same manner that Allah (swt) praised the Companions, He (swt) also praised those who followed them, and since the conveyance of the Quran even if by those whom Allah (swt) has praised does not make the words of the one who conveyed it a Shari’ah evidence, and due to that the inference made is invalid. What indicates the invalidity of this inference is that what an individual companion conveyed and what he narrated from the narrations is not considered to be definite – rather it is indefinite. Therefore, “The old man and woman if they commit fornication then stone them both” is not considered to be a verse from the Quran even though it was conveyed by a companion since there was no Ijma’ upon it. In the same manner, the narrations that are transmitted by the Companions from the singular reports are not considered definite - rather they are indefinite.

This is different from the Ijma’ of the Companions since what they agreed upon unanimously as being from the Quran is considered to be Quran and to be definite, and what they agreed upon unanimously in terms of narrations and were transmitted from them by Mutawatir (successive multiple chains) are considered to be definite evidences. Accordingly, the difference is vast between what the Companions agreed upon unanimously - where there is no disagreement, meaning it is definite and the one who denies it is a disbeliever - and what the single companion narrated which is indefinite and the one who denies it is not considered to be a disbeliever. Therefore, Ijma’ of the Companions is Shari’ah evidence whereas the opinion of the individual companion is not considered to be from the Shari’ah evidences. In addition to that, contrary to the Ijma’ of the Companions who do not agree upon a mistake, the individual companion can make mistakes and he is not free from them. The Companions used to differ over issues and each of them adopted a different opinion from the other; so, if the opinion of the companion were a proof then the proofs of Allah (swt) would be in disagreement and contradictory. Therefore, the opinion of a companion is not considered to be Shari’ah evidence.

As for those who say “the Shari’ah of those before us is Shari’ah for us”, they use the following words of Allah (swt) as evidence: “Truly We have sent the revelation to you as We sent the revelation to Nuh” (TMQ 4:163), “He (swt) has ordained the same Deen for you that He ordained for Nuh” (TMQ 42:13) and His (swt) words “Then, We (swt) have sent the revelation to you (O Muhammad  saying) Follow Millat Ibrahim” (TMQ 16:123).

These verses indicate that we are addressed by the legislation of the previous Prophets. In addition, the very duty of the Messenger  is that he came to inform about what Allah (swt) has obliged us to adhere to.  Due to that, every letter in the Quran and every action that emanated from the Prophet , any word that he pronounced or any confirmation from him must be adhered to except what was mentioned as being specific to him or other than him. So we are ordered by everything that is mentioned by the Quran or by narration except when a Shari’ah text comes to explain that it is specific to the Companions of the previous Shara’ih (plural of Shari’ah), and we are ordered by whatever has not mentioned in such a manner since Allah did not mention it in the Quran without reason and, therefore, we must be addressed by it.

This inference is incorrect. With respect to the verses, the intention of the first verse is that revelation is sent to him  in the same way it was sent to other Prophets, and the purpose of the second verse is that the basis of Tawheed (belief in Oneness of Allah(swt)) was legislated and that was what Nuh was ordained with. The intended meaning of the third verse is to follow the root of Tawheed since the word “Millat” means: the root of Tawheed.  All the verses from this type are in this manner, such as His (swt) words: “So follow their guidance” (TMQ 6:90) and other verses. As for His (swt) words “Truly, We did send down the Taurat, therein was guidance and light, by which the Prophets judged” (TMQ 5:44), Allah (swt) by this meant the Prophets of the Tribe of Israel and not Muhammad , and the Muslims only have one Prophet. As for what is narrated from Abu Hurayrah that the Messenger of Allah  said: “The Prophets are brothers from Allat (i.e. different mothers), they have various mothers and their Deen is one” (reported by Muslim), the meaning of “their Deen is one” is the Tawheed which is the basis that none differed upon. It does not mean what was sent from the Deen is one with all of them since we understand the opposite from His (swt) words: “And for each from you We have prescribed a law and a clear way” (TMQ 5:48). From this, it becomes clear that these evidences are not suitable to be inferred from, and the inference from them to prove that the Shari’ah from before us is a Shari’ah for us is incorrect.

On the other hand, there are evidences that decisively forbid the following of the Shari’ah of those before us whether it came in the Quran,  the Sunnah or not in both. Allah (swt) said: “And whoever seeks a Deen other than Islam, it will never be accepted of him” (TMQ 3:85) and Allah (swt) said: “Truly the Deen with Allah is Islam” (TMQ 3:19). So, when there is a Shari’ah text stating that for anyone to embrace any Deen other than the Deen of Islam is conclusively not accepted, then how can it be requested from the Muslims to follow it? Allah (swt) says: “And We have sent down to you the Book in truth, confirming the scripture that came before it and supreme over it” (TMQ 5:48), the supremacy of the Quran over the previous Books does not mean that it was a confirmation for them since it is said in the same verse “confirming” and so it rather means that it is an abrogation of them. Also, there is an Ijma’ that the Shari’ah of Islam is an abrogation for all the previous Shara’ih. More than that, Allah (swt) says: “Or were you witnesses when death approached Ya’qub? When he said to his sons: ‘What will you worship after me?’ They said ‘We shall worship your God, the God of your fathers Ibrahim and Ismail and Ishaq, One God, and to Him we submit (as Muslims) * That was an Ummah that has passed away. They shall receive the reward of what they earned and you of what you earn. And you will not be asked about what they used to do” (TMQ 2:133-4). So, Allah (swt) informs us that He will not ask us about what those Prophets did, and if we are not accounted about their actions, then we will not be accounted about their Shari’ah since conveying it and working according to it is from their actions. What we are not accountable for, we are not commanded with it and it is unnecessary for us. Additionally, it is narrated from Jaber that the Prophet  said: “I have been given five that no one before me was given; each Prophet was sent to his people specifically and I have been sent to each Red and Black (that is, the whole of mankind)” (Reported by Muslim) and from Abu Hurayrah that the Prophet  said “I have been preferred over the Prophets by six”  (reported by Muslim), and then he  mentioned them and amongst them was “And I was sent to all of the Creation”. Hence, the Prophet  has narrated that every Prophet before our Prophet  was only sent specifically to their people; so, he was not sent to other than his people and they were not obliged by the Shari’ah of a Prophet other than their own. Therefore, it is confirmed that no one from the Prophets were sent to us and so their Shari’ah cannot be a Shari’ah for us. This is supported by what is mentioned clearly in verses from the Quran “And to Thamud their brother Saleh”, “And to ‘Aad their brother Hud”, “And to Madyan their brother Shuaib” (TMQ 11:50, 61, 84).

From all this, it is clear that the Shara’ih of those who came before us is not Shari’ah for us for three reasons: the first of them being that the proofs used as evidence only indicate the basis of Tawhid and do not indicate that all of the Shara’ih of the Prophets is one. Secondly, the Shari’ah texts which mention the prohibition of following any Shari’ah other than the Shari’ah of Islam, and thirdly every Prophet was sent to his people specifically and we are not from his people so he is not a Messenger for us. We are, therefore, not addressed by his Shari’ah and are not bound by it. In that case, the Shari’ah of those before us is not considered from the Shari’ah evidences.

This is with regards to their use of the verses as proof. However, with respect to their inference that the Messenger  came to convey from Allah everything that must be adhered to, this is correct as to what he informed us that we must adhere to from Allah which is the Shari’ah that he came with. However, it is not correct (their inference) with respect to what he  did not order us to adhere to. So, the Prophet conveyed to us from Allah (swt) about the circumstances of those before us from the previous nations, but he informed us of that for the sake of example and admonition and not for us to be bound by their Shari’ah. So, the stories of the Prophets, as well as their affairs and the affairs of their nations, were narrated to us and their circumstances and what rules they used to follow were made clear to us. In addition, all of that was only for the sake of example and admonition and nothing else and it was not in order to be bound by their Shari’ah.

With respect to the stories and to the news (akhbaar), it is apparent that they came for admonition and lessons and this does not need any proof, and as for the conditions of the nations and what they used to follow in terms of rules, this was mentioned in way of reports about them and they were not mentioned from the perspective of being bound by them. They are like stories that came to explain the circumstances of the previous Prophets and the previous nations.

Above and beyond this, several of these rules contradict the Islamic Shari’ah in their details; therefore, if we were addressed by them, we would have been addressed by two different Shara’ih and this is not possible. As an illustration from the legislation of Sulayman, Allah (swt) said: “He inspected the birds and said ‘What is the matter that I see not the hoopoe? Or is his among the absentees? I will surely punish him with a severe torment, or slaughter him, unless he brings me a clear reason” (TMQ 27:20-1) and there is no difference amongst the Muslims regarding the prohibition of the punishment of the bird and even if it was disobedient; rather, there is no difference even regarding the invalidity of punishing any animal and there are Shari’ah texts that came regarding this. The Prophet (saw) said: “The beasts damage is Jubaar” (agreed upon through Abu Hurayrah); it is mentioned in Al-Muheet dictionary: “The Jubaar is like the cloud which destroyed the cowardly, and Jubaar is loss and invalid”. Therefore, the damage caused by livestock, as well as the bird, is not indemnified (i.e. the owner is not liable).

With respect to the Shari’ah of Musa, Allah (swt) says: “We forbade them every (animal) with undivided hoof and We forbade them the fat of the ox and sheep except what adheres to their backs or their entrails, or is mixed up with a bone” (TMQ 6:146), and in the Shari’ah of Islam all of that has been made permitted for the Muslims by His (swt) word: “and your food is permitted for them” (TMQ 5:5), and this fat is from our food so it is permitted for them. The words of Umm Maryam in the Quran, “I have vowed to you what is in my womb to be dedicated to Your services” (TMQ 3:35), are part of the Shari’ah of the people at the time of Zakariyyah and this is not permitted in Islam in origin. The words, “Every food was permitted for Bani Israi’l except what Isra’il forbade upon herself” (TMQ 3:93), are part of the Shari’ah of Ya’qub and in Islam it is not permitted to prohibit oneself from what Allah (swt) allowed; He (swt) says: “Why do you prohibit what Allah made permitted for you” (TMQ 66:1).  The Shari’ah of the People of the Book at the time of the companions of the Cave includes, “The ones who won their point said verily we shall build a place of worship over them” (TMQ 18:21), and this is prohibited in Islam; the Prophet  said “Truly, those who if a good man died from amongst them would build a place of worship over his grave are the most evil of creation” (agreed upon).

Part of the Shari’ah of Musa are the words “And We ordained therein for them Life for Life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds Qisaas (equal for equal)” (TMQ 5:45), while we do not take from this because we are not ordered with it and only other than us were ordered by it. Islam only obligated us with retaliation from all of these and in other issues by His (swt) words: “So whoever transgresses against you then transgress likewise against him” (TMQ 2: 194), His (swt) saying, “And if you punish, then punish them with the like of that which you were afflicted” (TMQ 16:126) and His (swt) words “The recompense for an evil is an evil like thereof” (TMQ 42:40). In addition, His (swt) words “and wounds Qisas” (TMQ 5:45) conflicts with Qisas (recompense) in Islam since the Qisas in Islam is the fine, and there is nothing in the Torah about accepting the fine. Rather, the fine is only in Islamic law and the fine is the blood money; so, the blood money for what falls short of life is called the fine. Likewise, many rules about Qisaas in the stories that have been narrated about the previous Prophets and nations, explaining their circumstance and what they used to follow from laws, contradict the laws of Islam; so how can we be addressed by them?

It cannot be said that these laws have been abrogated by the Islamic Shari’ah since they were narrated without restriction and the laws which have come to us did not come as abrogation for laws before us. Rather they came as a Shari’ah for us and there is no relationship between these laws. Accordingly, the issue of abrogation is not found and the call regarding it is a claim that has no backing since abrogation is the nullification of the rule which is understood from a previous Shari’ah text by a subsequent one, such as the words of the Messenger : “I used to prohibit you from visiting the graves so visit them” (reported by Muslim through Buraydah), and the report of Al-Rabi’ in his Musnad through Ibn Abbas, “I used to prohibit you from visiting the grave, so visit them”: therefore, the nullification and raising of the previous rule by a subsequent Shari’ah text is abrogation. Therefore, for abrogation to take place there must be an abrogated rule that was revealed before the abrogating rule, and for an indication to be present in the abrogating text that it is an abrogation for that rule, and anything other than this is not considered to be abrogation. The mere difference between two rules or contradiction between them does not make one of them an abrogation for the other; rather, there must be an indication in the abrogating text which indicates that it is an abrogation for a specific rule. Accordingly, these rules, narrated from the previous Shara’ih, are not abrogated by the rules of Islam which differs with them or contradicts them since there is nothing which indicates that. Furthermore, there is no relationship between them and the rules of Islam in legislation; so, they are abrogated by the abrogation of the previous Shara’ih by the Shari’ah of Islam and not by laws specific to them that came to abrogate them. With this, it is clear that the inference that we are addressed by what the Messenger  came with and are restricted by it as being an invalid inference since we are addressed by what came to us with him  from the legislation of Islam and restricted by that, and we are not addressed by what he related to us from the stories of the previous Prophets and their narrations, and neither are we addressed by what he explained to us from the circumstances of the previous nations and what laws they used to follow. Accordingly, it has become apparent with clarity that the legislation of those before us is not legislation for us and the invalidity of considering it being from the Islamic evidences is also apparent.

However, if another Shari’ah text is found with the laws from the Shari’ah of those before us which indicates that we are addressed by them, then, in that case, this rule would become found in the Book or in the Sunnah, and alongside it a Shari’ah text would be found that indicates that we are addressed by it in our Shari’ah and the address of the Legislator (swt) for us existed there which indicates that it is for us and so it would be obligatory to take action upon it then. However, this would not be because it was a Shari’ah of those before us but because of the address found in the same rule that is for us; in other words, because Allah (swt) addressed us by it and the Messenger  informed us that it was from the Shari’ah which he had come with, i.e. the laws of Islam.

It becomes apparent to the one who follows the laws that have come in the Book, the Sunnah and the previous Shara’ih that the text that comes indicating that we are addressed by it, that it is from our Shari’ah, could come in three circumstances:

Firstly, when the verse which the rule came with begins by directing the address towards us such as the verse regarding Kanz (hoarded wealth), Allah (swt) says: “O you who believe! Truly there are many of the rabbis and monks who devour the wealth of mankind on falsehood, and hinder (them) in the way of Allah. And those who hoard up gold and silver and spend them not in the way of Allah, announce unto them a painful torment” (TMQ 9:34). Allah (swt) has addressed us with this verse; so, whatever it mentioned is a Shari’ah for us. Accordingly, Kanz is prohibited in our Shari’ah even though part of the verse that prohibited it was explaining the circumstances of the rabbis and monks.

Secondly, when the verse which came with the rule has come with a word which indicates generality, such as the verses which mention ruling by other than what Allah has revealed. Allah (swt) says “And whosoever rules by other than what Allah has revealed then such are the disbelievers” (TMQ 5:44). So, the word “whosoever” indicates generality and this means that it encompasses us and thus we are addressed by it. Similarly, Allah (swt) says: “And whosoever rules by other than what Allah has revealed then such are the oppressors” (TMQ 5:45), and in the same way “And whosoever rules by other than what Allah has revealed then such are the sinful ones” (TMQ 5:49). 

Thirdly, if the verse ends with something that draws our attention to the laws which are within it, such as the verse of Qisas where Qarun was mentioned; Allah (swt) says: “Truly Qarun was one of Musa’s people, but he behaved arrogantly towards them. And we gave him of the treasures, that of which the keys would have been a burden to a body of strong men” until His (swt) words: “Know you not that the disbelievers will never be successful” (TMQ 28:76-82). This verse is followed directly afterwards by His (swt) words: “That home of the Hereafter, We shall assign to those who do not want grandeur in the land nor do mischief. And the good end is for the Muttaqun” (TMQ 28:83), and so the verses became an address to the Messenger  and to the believers. This draws attention to the laws which came (within them) when it is said: “those who do not want grandeur” and these were rules regarding Qaroon who wanted grandeur in the land but there is what indicates that we are addressed by these laws.

In these three circumstances, laws of the verses of previous people will be considered as laws from the Islamic Shari’ah since there is something that indicates that we are addressed by them and we adopt them in their characteristic as laws from the Islamic Shari’ah and not from the characteristic that they were from a Shari’ah of those before us since the Shari’ah of those who came before us is not a Shari’ah for us.

With regards to those who say that Istihsaan (application of discretion in a legal decision) is from the Shari’ah evidences, they are not able to come with single or even indefinite evidence from the Shari’ah that supports their claim. Istihsaan can be explained by those who take it as a Shari’ah evidence that: it is evidence which occurs to the Mujtahid when he or she is unable to make it apparent due to the lack of help to express it. It is also explained that it is to leave an aspect from amongst the aspects of Ijtihad without the completeness of the words for another aspect which is stronger than it and which would be like an unexpected factor on the first. In the same manner, it is explained that it is in an issue to abandon the rule comparable to it to another rule due to a stronger aspect that necessitates this move. Additionally, it is explained that it is to cut off an issue from comparable ones.

Istihsaan is divided into two categories; the first is Istihsaan Qiyasi and the second is Istihsaan of necessity. Istihsaan Qiyasi is to abandon the rule of an apparent Qiyas that comes to fore for a different rule by another Qiyas which is more subtle and hidden, but is a stronger proof, with a more satisfying viewpoint and a more correct derivation. An example of this is: if a person bought a car from two people in one agreement as a loan from them. Then, one of the two creditors was given part of this debt. However, he didn’t   have the right to take it specifically; rather, his partner in the debt has a right to claim his part of the receipt since he (the first creditor) has appropriated it from the combined sale price in the single sale. Moreover, the appropriation of either of the two partners from the price of the combined sale between them is the appropriation of both the partners, in other words, it is an appropriation for the partnership and it is not for either of them to take specifically. So, if whatever was taken is destroyed while it is in the possession of the one who received it before the second partner took his share from it, then the deduction from the Qiyas is that it would be taken away from the total sum of the two, or in other words from the total sum of the partnership. However, in Istihsaan the loss would be considered to be taken only from the one who had received it and the loss would not be counted against the second partner according to Istihsaan since in origin he is not inseparable from the partnership of the one who received it; rather, he is able to leave what is received by the appropriator and become attached to the debtor by himself specifically. The other examples follow in the same manner. This is Istihsaan Qiyasi.

As for Istihsaan of necessity, it is what contradicts the rule of Qiyas by taking into account an incumbent necessity or a required benefit in order to fulfil the need or prevent the hardship. This occurs when the rule from the Qiyas leads to a hardship or a problem in some issues and so it is abandoned at that time by Istihsaan for another rule which would remove the hardship and repel the problem. This is like the example of the employee since his possession with respect to what he is employed upon is considered to be an Amanat (trust); so there is no liability (to be paid) if it is damaged while it is with him as long as he was not negligent. Therefore, if someone employed a person to work in his house to sew clothes for someone else for one month, he is considered a private employee. Then, if the clothes were damaged while they are in the employee’s possession without any transgression from him, there is no payment of liability because he possessed it as a trust. Additionally, if someone employed someone to work in his shop to sew clothes for others and he used to sew clothes for all the people, then he is a general employee. So, if the clothes are destroyed while they are in this employee’s possession without any transgression from him then there is no liability since he held them as a trust in the same manner. However, according to Istihsaan, there is no liability upon the private employee while there is for the general employee so that he (the general employee) would not accept more work than he is able to do since he might  destroy the peoples’ wealth.

This is the summary of Istihsaan and its evidences. It is apparent that they are not evidences; rather, they are simply rational amendments that are neither from the Book nor from the Sunnah. They do not even reach the level of being considered indefinite proofs let alone conclusive proofs that Istihsaan is from the Shari’ah evidences. This is from one angle and from another angle; whatever comes about from rational amendment is void.

With respect to the explanations of Istihsaan, all of them are invalid. As for the first explanation that the evidence is sensed in the mind of the Mujtahid and that he or she does not know what it is, it is not permitted to consider something an evidence as long as it remains unknown since the lack of ability to make it clear and apparent proves that it is not clear to the Mujtahid and that he or she lacks knowledge of it; so, it is not correct to be from amongst the Shari’ah evidences. As for the other explanations, all of their meanings are the same, i.e. to abandon similar issues to the issue at hand for another stronger view, in other words, to abandon Qiyas for stronger evidence. If these explanations intend by the “stronger evidence”, a text from the Book or the Sunnah, then this is not Istihsaan; it is rather preference of the text, so it is deducing from the text which would be deduction by the Book or the Sunnah and not deduction by Istihsaan. If the “stronger evidence” is the mind by what it considers as benefit and this is the intended meaning, then this is invalid since Qiyas is built upon the Shari’ah ‘Illah which is determined by the text and it is the address of the Legislator (swt) to us. The mind and the benefit are not Shari’ah texts and nor are they another ‘Illah stronger than the text; rather, there is no relationship between the mind and benefit with the Shari’ah text (i.e. what came as Revelation). For that reason, this abandonment is invalid. 

This is regarding the explanations. As for the categorisation of Istihsaan, the invalidity of Istihsaan Qiyasi has become clear from the invalidity of the second explanation, which was to abandon the similar issues to the issue. Also, their consideration that it is a hidden Qiyas is invalid because it has no relationship with Qiyas; rather, it is simply reasoning by benefit (making the benefit an ‘Illah). Regarding the example of the price of a combined sale which was sold in one agreement, it is not correct to differ in the rule, the loss of the wealth which one of the two partners appropriated, that it is a loss from the wealth of the partnership, for what one of the two partners appropriated from the wealth is from the appropriation of the partnership. Because the wealth, irrespective of whether it was the sold car or its price, is the wealth of the partnership and not the wealth of one of the partners; so its loss is the loss of the wealth of the company just like its appropriation is an appropriation of the wealth of the company. So, this beneficial (Maslahi) abandonment has no place and it contradicts the Shari’ah.

As for the Istihsaan of necessity, its invalidity is clear in that it is ruled by the mind and what the mind perceives as benefit; it is not a Shari’ah text and the adopted reason (‘Illah) is preferred to the Shari’ah text (that is, the comprehension of Shari’ah text). All of this is invalid without any necessary discusssion. Then, to make the shared employee liable and the private employee not liable is to prefer something without evidence to make it preferred and it contradicts with the Shari’ah text.  It was reported by Al-Bayhaqi in Sunan Al-Kubra from ‘Amr B. Shu’ayb from his father from his grandfather that the Messenger  said:  “then there is no liability upon the one who takes a trust”. Similarly, through Al-Qasim Bin Abdul Rahman that ‘Ali and Ibn Mas’ud said: “there is no liability upon the one who takes a trust”, and in his Sunan Al-Bayhaqi reports from Jaber that Abu Bakr ruled that a deposit which had been kept in a bag, which was burnt and so was destroyed, was not to receive any liability in exchange; so, there is no liability upon anyone given a trust at all since the expression of the narration “no” is a negation of the genus (no liability) which indicates generality, and so it encompasses every one holding a trust whether they were a private employee or a general employee.

By this it is apparent that Istihsaan is not from the Shari’ah evidences, and it is not correct to consider it from the Shari’ah evidences since there is no proof at all, definite or indefinite, whether from the Quran, from the Sunnah or from the Ijma’ of the Companions that indicates that it is from the evidences. This is besides the fact that it is using the mind as evidence which makes it invalid and that some of its examples contradicts Shari’ah texts.

As for those who say that Al-Masalih Al-Mursalah are from the Shari’ah evidences, in the same manner they are also unable to bring any proof for it; however, they consider the reasons behind the whole of the Shari’ah to be the obtaining of interests and the repulsion of harms. In the same way, they consider the reason behind each specific Shari’ah rule to be the obtaining of the interest or the repulsion of the harm. However, some of them make it a condition that the consideration that something is itself a benefit needs to be found mentioned in a text from the Shari’ah or mentioned that it is a type of interest but some of them do not make this a condition; rather, they consider the Maslahah (benefit) a Shari’ah evidence even if there is no mentioning of the consideration of it or its type in a Shari’ah text. This is because it comes under the general Masalih by which the benefits are sought and the harms are avoided.

Al-Masalih Al- Mursalah may be defined as: every interest which has no text narrated in the Shari’ah with respect to it or its type. So, the meaning of Mursalah is that it is not mentioned in evidence. They said that if the Maslahah was itself mentioned in a specific text, such as teaching, reading and writing, or was from a general text which mentioned its type which confirmed its consideration, such as the enjoining of every type of good and the forbiddance of all the acts of evil, then in these two situations it is not considered to be from Al-Masalih Al-Mursalah. Rather, Al-Masalih Al-Mursalah is forwarded from the evidence, in other words, there is no evidence found upon it; instead, it is derived from the generality of the Shari’ah being sent to gain the interests and repel the harms. However, there is a difference made between the Shari’ah interests and those which are not legitimate since the Shari’ah interests are those that agree with the intentions (Maqasid) of the Shari’ah, and the interests that are illegitimate are those which contradict the intentions of the Shari’ah. So, Al-Masalih Al-Mursalah that are considered to be a Shari’ah evidence are those which agree with the intentions of the Shari’ah, and those which contradict with the intentions of the Shari’ah are not considered to be from Al-Masalih Al-Mursalah; consequently, it is not a Shari’ah evidence. Hence, Al-Masalih Al-Mursalah are those that the Shari’ah texts indicate its consideration in a general manner, and accordingly, specific Shari’ah rules are built upon its basis when there is no Shari’ah text regarding the event or anything which is comparable to it, in which case the interest would be the Shari’ah proof.

This is the summary of Al-Masalih Al-Mursalah and it is invalid from two angles:

Firstly: the Shari’ah texts from the Quran and the Sunnah are connected to specific actions of the worshipper; so, they are the Shari’ah evidence for the rule of the Shari’ah in that action, and they are not connected with the interests and no evidence came for the interest. When Allah (saw) said: “Let there be a pledge taken” (TMQ 2:283), and when He (swt) said: “O you who believe when you contract a debt for a fixed period write it down” (TMQ 2:282), and when He said: “Take witnesses whenever you make a commercial contract” (TMQ 2:282), He (swt) was explaining only the rules of mortgaging, writing down debts and witnessing the sale. He (swt) did not make it evident whether this was an interest or not, neither by expression nor by indication, and the text does not convey whether this rule was an interest or not, neither from close nor far or by any aspect from its various angles. So, from what angle is it said that these interests are indicated by the Shari’ah in order for this interest to be considered and subsequently to be considered as Shari’ah evidence?

Additionally, the Shari’ah Illal (plural of Illah) came in the same manner as the Shari’ah texts; connected to the actions of the worshipper and as evidence upon the indication of the Shari’ah rule in that action, and did not come to explain the interest nor the indication of the interest. So, when Allah (swt) says: “in order that it may not become a fortune used by the rich among you” (TMQ 59:7), “so that there may be no difficulty to the believers in respect of the wives of their adopted sons” (TMQ 33:37) and when He (swt) says: “to attract the hearts of those who have been inclined” (TMQ 9:60), He (swt) is only clarifying the ‘Illah distributing the wealth amongst the poor rather than the rich in order to prevent the circulation of the wealth amongst the rich, and clarifying that the ‘Illah of marrying the Messenger  to Zaynab is to be an explanation of the permissibility for  someone to marry his adopted son’s wife, and clarifying that the Illah for giving (money) in order to attract the hearts is the need for the State to bind the hearts together. So, He (swt) did not explain that this was benefit; rather, the explanation was that a specific issue was the Illah of a specific rule without any regard given to the interest or its absence and absolutely without any consideration to it. So, from what angle then, can it be said that the Shari’ah indicates these reasons such that the interests can be considered Shari’ah evidence? If the Shari’ah texts did not indicate that the Shari’ah came for the interest, neither in its indications upon the rule nor in its indications for the Illah of the rule, then it is not possible for it to be said that the texts indicate specific interests or by their type since nothing at all came regarding this in the Shari’ah texts. Accordingly, the invalidity of the claim that the Shari’ah texts came as a proof for specific interests or by their type has become clear, and from greater reasoning, the interests that were not mentioned by a text from the Shari’ah that indicates that they are from the Shari’ah evidences are also not considered.

Secondly, they made a condition for Al-Masalih Al-Mursalah that for them to be Mursalah, there must be no narration of a text in the Shari’ah that indicates that they are considered, neither specifically nor by their type, and so their stipulation is that there should not be a specific proof for it from the Shari’ah and it is rather understood from the intentions of the Shari’ah. This alone is enough to make it void in the view of the Shari’ah because the lack of a proof which indicates it is enough to reject it since the rule sought is the rule of the Shari’ah and not the rule from the mind. Therefore, in order to consider it as being from the Shari’ah, it is imperative that there is a proof which indicates that it is found in what came with the Revelation, i.e. the Book and the Sunnah. So, the stipulation that there is no text from the Shari’ah that indicates it is sufficient to reject it as being from the Shari’ah.

With respect to Al-Masalih Al-Mursalah being understood from the intentions of the Shari’ah, the intentions of the Shari’ah are not a Shari’ah text which can be understood such that what is understood from them can be considered a proof, and so there is no value in what is understood from them as far as using them as evidence for Shari’ah law. Furthermore, what is meant by the intentions of the Shari’ah? If what is intended by it is what the texts indicate, such as the prohibitions of fornication, stealing, murder, alcohol and apostasy from Islam, then this is not an intention of the Shari’ah; rather, it is the law for the actions of the worshipper and there is no looking beyond the indication of the text. So, there is no place to consider that this law which was understood from the text is Shari’ah evidence; rather, it is a Shari’ah rule. By greater reasoning, there is no account given to what the mind imagines from that law as being the purpose of the Shari’ah to be from the Shari’ah evidences. So, how would you consider that which is conceived from the mere imagination as a purpose of the Shari’ah to be a Shari’ah evidence?!! Based upon this, the validity of what is understood from the intentions of the Shari’ah is completely and utterly void.

As for what is intended by what is understood from all the wisdom (Hikma) of the Shari’ah, i.e. the wisdom behind sending the Messenger  and the fact that he was a mercy for all creation, then this is a Hikma not an Illah, and the Hikma may or may not be attained. Accordingly, it is not taken as a basis used as evidence due to the possibility of its absence; therefore, by greater reasoning, what is understood from the Hikma cannot be taken as a basis that is used for evidence.

Due to this, it would be incorrect to consider that what is understood from what is known as the intentions of the Shari’ah as being from the Shari’ah evidences. It is also the case from this angle that the notion that what is understood to be from the purpose of the Shari’ah to be Shari’ah evidence is completely void. Accordingly, the invalidity of the notion that Al-Masalih Al-Mursalah is from the Shari’ah evidences has become clear.

This is from the angle of the causes that made them consider that Al-Masalih Al-Mursalah is Shari’ah evidence. As for the angle of the Shari’ah proof that they are from the Shari’ah evidences, there is absolutely no Shari’ah proof for that at all whether from the Book or the Sunnah; neither a conclusive proof nor an indefinite one. For this reason, it is incorrect to consider Al-Masalih Al-Mursalah as being from the Shari’ah evidences.

From all of this, it becomes clear that the evidence that the Revelation came with from Allah (swt), which are confirmed with definite proof, are the four evidences and nothing else, and they are: the Book, the Sunnah, the Ijma’ of the Companions and Qiyas whose Illah is from the Shari’ah, and other than these four evidences have no definite proof that indicates them. Accordingly, it has become apparent that the Shari’ah evidences are only these four alone.

However, it should be clear that the rules deduced from evidences other than these four, from amongst the rules that an Imam considered as Shari’ah rules, are Shari’ah rules in the eyes of those who advocate them and those who oppose them because there exists a vague evidence denoting that they are considered as evidences. Hence, the one who considers the general consensus of the Ummah as being a Shari’ah evidence and who then goes on to deduce from this a rule; consequently, this rule would become a Shari’ah rule in his or her eyes and a binding Shari’ah rule upon him or her, and he or she would be forbidden from taking another rule instead. The same rule also becomes a Shari’ah rule in the eyes of those who oppose it but it does not become a binding Shari’ah rule upon them. The same applies to 'the Shari’ah of those before us is a Shari’ah for us', Al-Masalih Al-Mursalah, Istihsaan and rationality.

Hence, every rule deduced from any of these evidences is considered a Shari’ah rule in the eyes of those who advocate that what the rule has been deduced from is part of the Shari’ah evidences and in the eyes of those who oppose it as well. However, it is only a binding Shari’ah rule upon the one who deduces it and not binding upon the one who holds a different understanding. This is like the rules deduced from the texts since the difference in understanding the text does not make the deduced rule a Shari’ah rule in the eyes of the one who deduced it and illegitimate in the eyes of the one that opposed him or her in this understanding. Rather, it is a Shari’ah rule from the viewpoint of all the Muslims as long as the possibility of reaching such understanding from the text is possible; in other words, as long as the doubted evidence (shubhat daleel) exists. However, it is not considered a binding rule upon all the Muslims but only binding upon the one who has deduced it and the one who has emulated it, and not binding upon the one who has opposed it. Nonetheless, in any case it is a Shari’ah rule. Likewise, the rule deduced from an evidence is exactly like the rule deduced from the text; it is considered a Shari’ah rule in the eyes of all the Muslims whether for those who considered it a Shari’ah evidence or for those who did not consider it a Shari’ah evidence, provided the doubted evidence is existent, such as in the case of the previous evidences which we refuted their consideration as the Shari’ah evidences.