Monday, November 10, 2008

Article 12, 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.


The only considerable evidences of the Shari'ah rules are the Book, the Sunnah, the Ijma'a of the Sahaba and the Qyyas (analogy).

Explanation and evidences:

This article does not imply that the State will adopt a method of Ijtihad, it rather means that the State will adopt and follow a specific method of Ijtihad; it rather means that the State will follow a specific method when adopting the Shari'ah rules; because the adoption of the Shari'ah rules could either be in some cases obligatory 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. What prompted the adoption of such a method in the adoption of rules are three reasons: 1- The rule by which the Muslim should proceed is a Shari'ah rule and not a rational rule, i.e. it is the rule of Allah pertaining this matter and not the conventional rule; therefore, the evidence from which this rule is deduced must be that which the Revelation has brought.

It is imperative for the confirmation that the evidence, from which the rule has been deduced, has been brought by way of Revelation, to be conclusive. In other words, it is imperative for the proof about the fact that the evidence from which the Shari'ah rule has been deduced has been brought by way of Revelation, to be conclusive and decisive and not doubtful. This is so because it is part of the Usul (foundations) and not part of the branches, thus doubt is not sufficient, because it is part of the Aqeedah matters and not part of the Shari'ah rules. This is so because the evidence required to deduce the rule from is an evidence which has come by way of Revelation, not just any evidence. Therefore, it is imperative to decisively confirm it as being brought by way of Revelation, and the process of confirming that it is Revelation that has brought it is a Aqeedah matter not a Shari'ah rule. Therefore, it is imperative to establish that the evidence has come by way of Revelation in a conclusive manner i.e. by a conclusive evidence; because matters of Aqeedah can only be taken conclusively.

What is conclusive is that man’s behaviour in life proceeds according to his concepts about life; and although the viewpoint about life has the Aqeedah as its basis, it is nevertheless formed of a host of concepts, criteria and convictions which are existent in the Ummah; and not all of these thoughts, which are reflected in this host of concepts, criteria and convictions, are part of Aqeedah matters, for in fact some of them are part of Aqeedah matters 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.

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 which have been confirmed by a conclusive evidence to have been brought by way of Revelation, and we have not found other than these four at all.

As for the Qur'an, the evidence about the fact that it has been brought by way of Revelation from Allah (swt) in letter and spirit is conclusive. The I'jaz of the Qur'an serves as a conclusive evidence that it is indeed the word of Allah (swt) and not the word of man. Hence, the conclusive evidence has been established that the Qur'an is the word of Allah (swt). The Qur'an itself, which has been conclusively confirmed as being the word of Allah by the evidence of the I'jaaz, states that it is Revelation that descended it upon the Messenger of Allah (saw); Allah (swt) says: [26- 193,194,195] "With it came down the Faithful Spirit * To your heart so that you may admonish * in the perspicuous Arabic tongue." T.M.Q. Allah (swt) also says: [6- 19] "And this Qur'an has been revealed to me so that I may warn you with it and those whom it reaches." T.M.Q.

Allah (swt) also says:[21-45] "Say I do but warn you according to Revelation, but the deaf will nit hear the call when they are warned." T.M.Q.

Allah (swt) also says: [20-1,2] "Ta Ha* We have not sent down the Qur'an to you so that you become distressed * But only as an admonition those who fear." T.M.Q.

Allah (swt) also says: [27-6] "As to you the Qur'an is bestowed upon you from the presence of One Who is Wise and All-Knowing." T.M.Q.

Allah (swt) also says: [76-23] "It is We Who have sent down the Qur'an in stages." T.M.Q.

Allah (swt) also says: [42-7] "Thus We revealed to you an Arabic Qur'an." T.M.Q.

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

As for the Sunnah, the conclusive evidence about the fact that it is Revelation that has brought it from Allah (swt) in meaning and that the Messenger of Allah (saw) expressed it by his own words, this evidence is also clearly indicated in the Verses of the Qur'an. Allah (swt) says: [53-3,4] "Nor does he speak of his desire * It is no less than Revelation sent down to him." T.M.Q.

Allah (swt) says: [4-163] "We have sent you Revelation as We sent it to Nouh and the prophets after him." T.M.Q.

Allah (swt) says: [10-15] "I only follow what is revealed to me." T.M.Q.

Allah (swt) says: [7-203] "Truly I follow what is revealed to me by my God." T.M.Q. Allah (swt) says: [21- 45] "Say I do but warn you according to Revelation." T.M.Q.

Allah (swt) says: [59-7] "and whatever the Messenger brought to you take it and whatever he forbids you abstain from it." T.M.Q.

These are clear evidences denoting that whatever the Messenger of Allah (saw) 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 Qur'an to abide by what the Messenger of Allah (saw) ordered us and to abstain from what he (saw) 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 Qur'anic text, that happens to be definite in meaning.

As for the Ijma'a of the Sahaba, which is considered a Shari'ah evidence, it means the general consensus of the Sahaba 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'a (general consensus) would be considered a Shari'ah evidence.

Evidence about this is reflected in two matters: 1- Allah (swt) praised them in the Qur'an through a text that is conclusive and definite in meaning. Allah (swt) says: [9-100] “The vanguards and the first from among the Muhajireen and the Ansar, and those who followed them in all the goods deeds, Allah is well pleased with them as they are with Him, and He prepared for them gardens under which rivers flow, to dwell therein forever, that is the supreme felicity." T.M.Q.

This praise by Allah (swt) of the Muhajireen (emigrants), the Ansar ( Helpers) and those who followed them with righteousness, for their emigration and their support, is a praise of the Sahaba; because those praised are the Sahaba 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.

We have taken our Deen from those Sahaba, for they transmitted to us the very Qur'an that had descended upon the Messenger of Allah, our master Mohammed (saw). Hence, if we assumed that a flaw were to creep into one single matter from among that which they had agreed upon, this means that the flaw could creep into the Qur'an, i.e. the flaw could creep into the Deen which we had taken from them, and this is as far as Shari'ah is concerned impossible. Therefore, although it would not be rationally impossible for the Sahaba to unanimously agree upon an erroneous matter, for this could happen since they are but humans, this however could not possibly happen to them as far as Shari'ah is concerned; for if this were possible, it would then possible for error to creep into the Deen, i.e. it would be possible for error to creep into the fact that this Qur'an that we have today is the same and the very Qur'an that descended upon our master Mohammed (saw), and this is impossible as far as Shari'ah is concerned; thus it would be impossible for them to generally consent on something erroneous. This serves as a conclusive proof that the Ijma'a of the Sahaba is a Shari'ah evidence. Besides, Allah (swt) says: [15-9] "We have without doubt sent down the Qur’an and We will assuredly protect it." T.M.Q. Therefore, Allah (swt) has promised to protect the Qur'an, and he who transmitted this Qur'an is he who protected it, thus this serves as evidence about the truthfulness of their Ijma'a in transmitting and compiling the Qur'an; 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 Qur'an to be flawed and it would be possible for it to be unprotected. Therefore, since the non protection of the Qur'an 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'a of the Sahaba is a conclusive evidence.

However, what should be made absolutely clear is that the Ijma'a of the Sahaba stipulating that such and such rule is a Shari'ah rule, means that this general consensus of theirs discloses an evidence; i.e. that there exists for this rule an evidence derived either from the action, or the saying or the silence of the Messenger of Allah (saw), and that the Sahaba ® transmitted the rule but did not transmit the evidence. Hence, their transmission of the rule discloses the fact that there exists an evidence pertaining 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 Sahabi’s opinion cannot be regarded as a Shari'ah evidence, because the Shari'ah evidence must be brought by way of Revelation in order to be considered as Shari'ah evidence and the Sahaba’s opinions are not as such, thus they cannot be considered as Shari'ah evidence, whether these were the opinions upon which they agreed or the opinions over which they disagreed. Therefore, the Ijma'a of the Sahaba does not mean their agreement upon one single opinion, it rather means that their general consensus about the fact that such and such rule is a Shari'ah rule, or about the fact that the rule of such and such matter is so and so according to Shari'ah; in this case it is not their opinion but rather a general consensus that it is from Shari'ah; hence, the Ijma'a of the Sahaba discloses an evidence.

Al for Al-Qyyas, it is also a Shari'ah evidence. Linguistically, it means estimating, and in the Usul terminology it is the carrying over of a known matter upon another known matter in order to either confirm a rule for both of them or to disaffirm it for both of them by 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 (i.e. the reason) of the rule. In other words it is the extending of the root to the branch i.e. the joining of the branch to the root. Carrying a known fact over a known fact means that one of them shares the same rule with the other. The fact that this carrying is undertaken in order to either confirm the rule or disaffirm it, means that the carrying over of the branch upon the root is associating both of them in the same rule; thus the rule of the root is established for the branch, thus the branch shares the rule of the root. This rule of the root could be a confirmation, as reflected in the saying of the Messenger of Allah (saw) to Al-Khutha’myyah: “What if your father had a debt and you paid it off, would that suffice him?” She said: “yes”. So he (saw) said: “Likewise is the debt to Allah.” Here the Messenger of Allah (saw) 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 carried upon could also be a disaffirmation, as is the case in what Ahmed reported on the authority of Omar ® who said: “One day I was cheerful so I kissed while I was fasting; so I went to the Messenger of Allah (saw) and said to him: “I committed a big blunder today. I kissed while I was fasting.” Upon this the Messenger of Allah (saw) said: “What if you rinsed you mouth out with water while you were fasting?” I said: “There is no harm in this.” He (saw) said: “So what is the problem.?” Here the Messenger of Allah (saw) 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, that is the non invalidation of the fast.

The meaning of this carrying 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; this Illah is the common factor between the comparable and the comparable with, i.e. between the root and the branch. An example of this is reflected in what Malik reported on the authority of Abdullah Ibnu Yazid who was informed by Zayd Abu Ayyash, that he had asked Saad Ibnu Aby Waqqas about the exchange of wheat for a prime quality barley known as “Al-Sult”, so Saad enquired: “Which of the two is better?” He said: “The white one (meaning the wheat).” Upon this Saad advised him against such exchange and said: “I heard the Messenger of Allah (saw) enquire about the purchase of dates with Rutab (ripe dates), so he (saw) said: “Would the Rutab become lighter if it dried?” They said: “Yes.” So he (saw) prohibited such sale.”

Here, the Messenger of Allah (saw) asked about the Illah that exists in the usurious money, which is the increase, whether it was also found in the sale of Rutab for dates, and when he (saw) knew of its presence, he confirmed for such type of sale the rule of Riba (usury), thus he prohibited it. 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 (saw) asked about the mutual factor, which is the Shari'ah Illah of Riba.

This is the definition of Al-Qyyas according to Shari'ah. This definition has been obtained from the Ahadith of the Messenger of Allah (saw). Muslim extracted on the authority of Ibnu Abbas ® who said: “A woman came to the Messenger of Allah (saw) and said: “O Messenger of Allah, my other passed away before being able to fulfil a fast that she had vowed to Allah. Do I fast on her behalf?” He (saw) said: “What if your mother had a debt and you paid it off would that suffice her?” She said: “Yes.” He (saw) said: “Then fast on behalf of your mother.” Ahmed reported on the authority of Abdullah Ibnu Abbas or on that of Al-Fadhl Ibnu Abbas that a man asked the Messenger of Allah (saw): “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 (saw) 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 (saw) said: “Then do perform Hajj on behalf of your father.” In these two Ahadith, the Messenger of Allah (saw) carried over the debt to Allah (saw) in fasting and in Hajj onto the debt to the human and they both are the carrying over 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, according to Shari'ah, the reality of Al-Qyyas, which is deduced from the Shari'ah text. Therefore, this definition is a Shari'ah rule that must be implemented and it is binding the rule of Allah upon he who deduces it and upon he who imitates it, either as a Muttabi’ (i.e. a Muqallid who queries the evidence) or as a Ammi (i.e. a Muqallid who could not perceive the evidence); this rule becomes 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 Qyyas is based upon the Illah, i.e. upon the mutual factor between the known matter carried over and the known matter carried upon; in other words, between the root and the branch. Hence, if the Illah is found, i.e. if the mutual factor is found between the compared and the compared with; otherwise Al-Qyyas does not takes 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 compared with that which is listed by a Shari'ah text, because the Illah upon which the Al-Qyyas is based has been mentioned by Shari'ah. By contrast, if this Illah were not mentioned in a Shari'ah text, nor were it compared with that which is listed in a Shari'ah text, such a Qyyas would not be considered a Shari'ah evidence because the reason upon which it is based has not been mentioned by a Shari'ah text; thus such Qyyas could not be from Shari'ah and consequently it cannot be a Shari'ah evidence.

Evidence about this Qyyas being a Shari'ah evidence is reflected in the fact that the Shari'ah text in which the Illah is mentioned or compared with that which is mentioned in the Shari'ah text, could either come form the Book, or the Sunnah, or from the Ijma'a of the Sahaba. 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 Al-Qyyas. This is so because the Shari'ah reason found in the rule that is mentioned by the text, which acts as the root, is that which makes the rule in the branch a Shari'ah rule and it is that which makes Al-Qyyas feasible, for without it, Al-Qyyas would not have existed in the first place. Therefore, its evidence will also serve as evidence for Al-Qyyas. This Shari'ah Qyyas has been demonstrated to us by the Messenger of Allah (saw) and he (saw) considered it a Shari'ah evidence. The Sahaba 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 (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.” Here, Muath and Abu Moussa stated that they would use Al-Qyyas and the Messenger of Allah (saw) approved of this, thus this serves as proof that Al-Qyyas is a Shari'ah evidence. It is reported on the authority of Ibnu Abbas ® that a woman came to the Messenger of Allah (saw) and said: “My mother has died and she has a month’s fasting on her neck.” So the Messenger of Allah (saw) said: “What if your mother had a debt, would you settle it?” She said: “Yes.” Upon this he (saw) said: “Then the debt to Allah is more worthy of being settled.” Here the Messenger of Allah (saw) 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 Al-Qyyas itself. Similar to this is what Ahmed reported on the authority of Omar Ibnul Khattab who said: “One day I was cheerful so I kissed while I was fasting; so I went to the Messenger of Allah (saw) and said to him: “I committed a big blunder today. I kissed while I was fasting.” Upon this the Messenger of Allah (saw) said: “What if you rinsed you mouth out with water while you were fasting?” I said: “There is no harm in this.” He (saw) said: “So what is the problem.?” Here the Messenger of Allah (saw) disaffirmed from the act of kissing while fasting the rule of invalidating the fast by comparing it with the act of rinsing out the mouth while fasting, which does not invalidate the fast; because neither of them enter the belly. Thus it was an explanation of the rule through the use of Al-Qyyas. Not only the rule was given a Illah in these three texts, as is the case in many texts, thus denoting Al-Qyyas, Al-Qyyas itself was also approved, taught and explained through these texts and this serves as a valid argument stipulating that Al-Qyyas is a Shari'ah evidence.

This is as far as the Messenger of Allah (saw) is concerned. As for the Sahaba, it is reported that they used Al-Qyyas in several matters. Abu Bakr ® endorsed the inheritance of the mother’s mother to the exclusion of the father’s mother. Some of 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. Upon this he retracted and devised the sixth of the inheritance to be shared between both of them. Here the Sahaba compared the inheritance of the living from the dead with the legacy of the dead to the living, by assuming that the dead was living and the living was dead, thus concluding that the mutual factor, i.e. the kinship between the two person is the same in both instances. When Abu Bakr ® heard this Qyyas, he submitted to it, implemented it and retracted from his own opinion. Similar to this is what was reported that Omar ® wrote to Abu Moussa Al-Ash’ari saying: “Get acquainted with the similar and the identical matters and then make analogy between the matters according to your opinion.” Muslim extracted on the authority of Ibnu Abbas who said that “Omar had heard of Samra having sold wine. It was said that Samra had taken wine from Jewish traders as tithe, so he turned it into vinegar and sold it. Upon hearing this Omar said: May Allah damn Samra, did he not know that the Messenger of Allah (saw) say: “May Allah curse the Jews; fats have been made unlawful to them, so they embellished them and sold them.” Here Omar ® compared wine with fat and concluded that its prohibition stipulates the prohibition of its sale. Another example is that Omar ® was not sure about the penalty of the seven who took part in the killing of one man; so Ali ® 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: “Likewise.” This is a Qyyas between the killing and the theft, and all this indicates that Al-Qyyas is Shari'ah evidence deduced from the Sunnah and the Ijma'a of the Sahaba. Hence, that which has been confirmed through the Messenger of Allah (saw) is the Sunnah and that which has been confirmed through the Sahaba is considered a “Ijma’a Sukuti” i.e. Silent General Consensus” because the Sahaba who utilised Al-Qyyas, did so in the presence and the full knowledge of the rest of the Sahaba, and none of them condemned it; thus it was a general consensus.

However, the Sunnah and the Ijma'a of the Sahaba have both been reported by way of individual report, thus they are considered as doubtful evidence. Therefore, the conclusive evidence about the fact that Al-Qyyas is a Shari'ah evidence is reflected in what we mentioned with regard to the Illah being mentioned in the Shari'ah text, i.e. the Book and the Sunnah or in the Ijma'a of the Sahaba. These three evidences have been confirmed as being Shari'ah evidences by way of a conclusive evidence; thus they act as the evidence for Al-Qyyas, because they are the evidence for the Illah.

It has been conclusively established that these four evidences, the Book, the Sunnah, the Ijma'a of the Sahaba and Al-Qyyas have come by way of Revelation from Allah (swt). Apart from these four, no other evidence has been established through a conclusive evidence. Therefore, it becomes clear that the Shari'ah evidences are these four and nothing else.

However, it should be made clear that the rules deduced from evidences other than these four, from among those evidences recognised by a certain Imam, these 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, he who considers the general consensus of the Ummah as being a Shari'ah evidence, he then goes on to deduce from this a rule, this rule becomes a Shari'ah rule in his eyes and a binding Shari'ah rule upon him; he will be forbidden from taking another rule instead. The same rule becomes also a Shari'ah rule in the eyes of those who oppose it but it does not become a binding Shari'ah rule upon them. Examples of these are “The Shari'ah of those before us is a Shari'ah for us.”, “Al-Masalih Al-Mursalah” i.e. “The Public Interests.”, “Al-Istihsaan.” i.e. “The Approbation.” and “Rationale”.

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 he who deduces it, and not binding upon he who holds a different understanding. Thus, it is a Shari'ah rule in the eyes of all the Muslims as long as the possibility of reaching such understanding from the text is existent; i.e. as long as the vague evidence is existent; however, it is not considered a binding rule upon all the Muslims, but only binding upon he who has deduced it and he who has emulated it, and not binding upon he who has opposed it. Nonetheless, 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 a Shari'ah evidence or for those who did not consider it a Shari'ah evidence, provided the vague evidence is existent.

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