أو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points.
Article No 3
The Khalifah adopts a host of specific Shari'ah rules, which he will enact as a constitution and as 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.
Explanation and evidences:
The evidence of this article is derived from the Ijma’a (General Consensus) of the Sahaba. The Ijma'a of the Sahaba has been established in stipulating that the Khalifah reserves the right to adopt specific Shari'ah rules. It has also been established that it is obligatory to act upon the rules adopted by the Khalifah. A Muslim is forbidden from acting upon other than what the Khalifah has adopted in terms of Shari'ah rules even if these rules were Shari'ah rules adopted by a Mujtahid. This is so because the rule of Allah that becomes duly binding upon all the Muslims is that which the Khalifah adopts. The rightly guided Khulafa’ proceeded in this manner. They adopted a host of specific rules and ordered their implementation; thus, the Muslims, with the Sahaba amongst them, used to act upon these rules and abandon their own Ijtihad. For instance, Abu Bakr ® 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 go. 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 while the judges and the Walis implemented the rules which he had adopted. When Omar ® took office, he adopted in the same two matters different opinions to those of Abu Bakr’s; thus he imposed the rule stipulating that the triple divorce is considered as three. He also distributed the wealth among the Muslims according to their seniority in Islam and according to their needs, rather than equally. The Muslims duly followed him in this while the judges and the Walis implemented the rules he had adopted. Then Omar ® adopted a rule stipulating that the land conquered in war is a spoil for Bayt-al-Maal, (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 nor among the Muslims. The Walis and the judges duly complied and implemented the rule which the Khalifah had adopted.
Therefore, the rightly guided Khulafa' proceeded in this way, adopting and ordering people to abandon their Ijtihad and the rules which they had acted upon and adhere to that the which the Khalifah had adopted. The Ijma'a of the Sahaba was established on two matters; these are the adoption and the obligation of acting upon that which the Khalifah adopts. Based on this Ijma'a of the Sahaba, the celebrated Shari'ah principles were obtained. These are: 1- The Sultan reserves the right to effect as many judgements as the problems which arise. 2- The order of the Imam settles disagreement. 3- The order of the Imam is binding.
In essence, the adoption is necessary when a difference of opinion in the one matter occurs. Hence, in order to act upon the Shari'ah rule in this matter, it is imperative to adopt a specific rule in this matter. This is so because the Shari'ah rule, which represents the address of the Legislator related to the actions of the servants, have come in the Qur’an and the Hadith, and many of these carry several meanings according to the Arabic language and according to Shari'ah. Hence, it is natural and inevitable for people to differ in their understanding and for this difference in understanding to reach the level of disparity and contradiction in the intended meaning. Thus, it is inevitable for different and contradictory understandings to be reached. These could be a host of different and contradictory understandings in the one matter.
Bukhari extracted on the authority of Nafi’, on that of Ibnu Omar ® who said: “the Messenger of Allah (saw) said on the day of Al-Ahzab (the battle of the Ditch): “None of you should pray Asr except in Bani Quraytha.” The time of Asr entered while some were still on the way; so some said: “We should not pray until we reach Bani Quraytha.” Others said: “No, we should pray because the instruction does not mean this.” This was mentioned to the Messenger of Allah (saw) and he did not rebuke any of them.” When the Messenger of Allah (saw) said: “None of you should pray Asr except in Bani Quraytha.”, some understood that he was urging haste and they prayed in the way, while others understood that he (saw) had literally ordered them to pray Asr in Bani Quraytha, thus they delayed Asr until they reached their destination. When the Messenger of Allah (saw) heard of this, he approved of both camps’ actions.
There are many verses and Ahadith similar to this. The difference of opinion in the one matter makes it incumbent upon the Muslims to adopt one opinion from among these various opinions, for all of them are Shari'ah rules, and the rule of Allah (swt) in the one single matter does not multiply. Therefore, it is imperative to determine one single rule and adopt it. hence, the Muslim’s adoption of one specific Shari'ah rule is necessary and inevitable when he undertakes the action, for the undertaking of the action obligates the Muslim to accomplish it according to the Shari'ah rule, whether this were a Fardh (obligatory), or Mandub (recommended), or Haram (forbidden), or Makruh (despised), or Mubah (permitted), and this makes it incumbent upon the Muslims to adopt a specific Shari'ah rule when taking the rules to act upon them, whether he were a Mujtahid or a Muqallid or otherwise.
As for the Khalifah, it is imperative for him to adopt a host of specific rules according to which he assumes managing people’s affairs. Hence, it is necessary for him to adopt certain rules pertaining what is of general nature to all the Muslims, in terms of government and authority matters, such as Zakat, levies, Kharaj (land tax) and foreign relations, and also, in terms of all that is related to the unity of the State and the rule.
However, his adoption of the rules is subject to scrutiny. If the Khalifah could not undertake an action, whose undertaking necessitates managing people’s affairs according to the Islamic Shari'ah rules, unless he adopted a specific rule in that matter, 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 the signing of treaties for instance. However, if the Khalifah could manage people’s 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, in this case the adoption would be permitted for him rather than an obligation, such as “Nisab Al-Shahada” (the minimum number of witnesses in a testimony) for instance. 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 Sahaba ® have unanimously consented that the Imam can adopt and they have not consented that the Imam must adopt. Therefore, the adoption itself is Mubah, and it does not become obligatory unless the obligatory management of people’s affairs cannot be accomplished except through adoption; then it becomes obligatory so that the duty could be accomplished.