Tuesday, October 28, 2008

Article 9, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book مقدمة الدستور
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.

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

Explanation and evidences:

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, revealed by Allah (swt) to the Messenger of Allah (saw), an obligation upon the Muslims. The fact that Ijtihad is an obligation has been confirmed through several Ahadith. In the narration of Bukhari on the authority of Amr Ibnul Aas who said that he heard the Messenger of Allah (saw) say: “If one were to give a ruling, so he made Ijtihad and reached the sound rule, he would get double the reward; and if he were to give a ruling, so he made Ijtihad and reached the wrong rule, he would still get a reward.” He (saw) also said: “…and a man who passed onto people his judgement without knowledge, he is in Hell fire.” This confirms that the judge must be acquainted with what he judges on. It is also reported that the Messenger of Allah (saw) 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 nor in the Sunnah, we would make analogy between the two matters and whichever were closest to that which is right we would act upon it.” This analogy is in itself a kind of Ijtihad to deduce the rule which the Messenger of Allah (saw) approved of. It is also reported that the Messenger of Allah (saw) said to Mu’ath when he appointed him as Wali to Yemen: “What will you rule by?” He said: “By the Book of Allah.” He (saw) 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 (saw) said: “Praise be to Allah Who guided the envoy of the Messenger of Allah to what Allah and His Messenger love.” This clearly indicates the approval of the Messenger of Allah (saw) with regard to Mu’ath performing Ijtihad. Furthermore, the knowledge of the rules in linked and related to Ijtihad, for the perception and cognisance 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.” The Istinbat, i.e. the deduction of rules is in essence performed by Mujtahideen, because the knowledge of Allah’s rule in a given matter cannot be reached but through Ijtihad, thus Ijtihad becomes indispensable. The scholars of Usul, i.e. foundations of Jurisprudence, have indicated that Ijtihad is a duty of sufficiency upon the Muslims and that it is forbidden for Muslims to have no Mujtahid at any given time, and if they all agreed upon forsaking Ijtihad, they would be sinful, because the way to recognising the Shari'ah rules is Ijtihad; so if an era were devoid of at least one Mujtahid upon whom it could be relied in perceiving the rules, this would lead to the disruption of Shari'ah, and that is forbidden. Besides, the Shari'ah texts makes 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 an elaborate manner, but rather in a general manner that can be applied to all matters faced by humanity. Their understanding and the deduction of the rule of Allah from them requires 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; 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 perceive the Shari'ah rule. This is in fact within everyone’s reach. Ijtihad was to the Muslims in the early times natural and evident, and it had no prerequisites. However, since the Arabic tongue started to weaken, and since people started to devote less attention to discerning the Deen, it has become incumbent upon the Mujtahid to recognise the aural evidences from which the principles and the rules are deduced; it has also become incumbent upon him to discern the meaning of expressions which are credible in the Arabic tongue and in the usage of eloquent people. apart from these two conditions, there are no other conditions 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 of this article.

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