Sunday, November 16, 2008

Article 14, 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.

Article 14: The principle in actions is the abidance by the Shari'ah rule. Hence, no action should be undertaken unless its rule is known. The principle in things is Ibaha (permissibility) as long as there is no evidence stipulating prohibition.

Explanation and evidences:

The Muslim is commanded to conduct his actions according to the Shari'ah rules. Allah (swt) says: [4-65] "No by your God, they shall not have true belief until they make you judge in all disputes between them, and find in their souls no resistance against your decision, but accept it with the fullest conviction." T.M.Q.

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

Therefore, the Muslim should in principle abide by the Shari'ah rules. Besides the Shari'ah principle states: “No rule before the advent of Shari'ah.” In other words, no matter should be given any rule whatsoever before the advent of the rule of Allah pertaining this matter. Hence, before the advent of Allah’s rule, no matter should be given any rule. This means that it should not be given the rule of Ibaha, for the Ibaha is a Shari'ah rule that must be established through the address of the Legislator; otherwise it cannot be considered a Shari'ah rule. This is so because the Shari'ah rule is: “The address of the Legislator related to the actions of the servants.” Therefore, anything that has not been mentioned in the address of the Legislator cannot be considered a Shari'ah rule. Therefore, Ibaha is not the non advent of a prohibition, it is rather the advent of a Shari'ah evidence stipulating the Mubah; i.e. the advent of the choice to either undertake or abstain from the Legislator. Therefore, the origin is the abidance by the address of the Legislator, not the Ibaha; because the rule of Ibaha itself requires a confirmation from the address of the Legislator. This principle is general, it includes the actions and the things. If a Muslim wanted to perform any action, it would be incumbent upon him to abide by the rule of Allah (swt) pertaining that action; thus, he must search for that rule until he recognises it and abides by it. This is what the verses and the Ahadith have indicated in letter and in spirit. Therefore, it is forbidden for a Muslim to undertake any action or to act towards anything in contradiction to the Shari'ah rule; he should rather abide by the Shari'ah rule in every action he undertakes and in every matter. After Allah (swt) revealed: [5-3] "Today, I have perfected your Deen for you, completed my favour upon you and have chosen for you Islam as your Deen." T.M.Q.

and after He (swt) revealed: [16-89] "And We have sent down to you the Book explaining everything." T.M.Q., not one single action, nor one single thing has been left with no outlining of the evidence for its rule by Allah (swt); and it is forbidden for anyone, having perceived these two verses, to claim that some actions and some things or some situations are devoid of the Shari'ah rule, meaning that Shari'ah has completely ignored it, thus it failed to designate an evidence or a sign to draw the attention of the obligated to the presence of this Shari'ah rule, i.e. the presence of a Illah that leads the obligated to the rule; is it Wajib, or Mandub, or Haram, or Makruh or Mubah? Such a claim is considered a slander against Shari'ah. Therefore, it is forbidden for anyone to claim that such and such action is Mubah because no Shari'ah rule related to it has been mentioned; consequently the principle is Ibaha if no Shari'ah rule has been mentioned. It is forbidden to claim this because every action and every thing has its evidence in Shari'ah; thus one must search for the rule of Allah pertaining the action or the thing to take it and apply it as oppose to making it Mubah under the pretext that there is no evidence for it.

However, since the Shari'ah rule is the address of the Legislator related to the actions of the servants, the address has therefore come to deal with the action of the servant not to deal with the thing; this address has also come to deal with the thing in relation to the action of the servant; thus the address is originally directed at the action of the servant and the thing has come as an appendant to the action of the servant, whether the address has come to the action without any mention of the thing whatsoever, such as Allah (swt) saying: [2-60] "Eat and drink" T.M.Q., or it has come to the thing without any mention of the action whatsoever, such as Allah (swt) saying: [5-3] "Dead meat, blood and the flesh of the swine has been made forbidden to you." T.M.Q. The rule of prohibition in these three things is in fact in relation to the action of the servant in terms of eating, buying, selling and hiring and other. Therefore, the Shari'ah rule deals with the action of the servant, whether this were a rule for the action or a rule for the thing. This is why one should in principle abide by the rule, because the address is related to the action of the servant.

However, by scrutinising the elaborate evidences of the Shari'ah rules, it becomes clear that within the texts which have come as evidences of the rules, the state of the text that acts as an evidence for the action is different to the state of the text that act as evidence for the thing, in terms of the manner in which the address is directed. In the text related to the action, the address is directed to the action alone, regardless of whether the thing is mentioned or not. For instance, Allah (swt) says [5-3] "Dead meat, blood and the flesh of the swine has been made forbidden to you." T.M.Q.

Allah (swt) says: [2-275] "And Allah has made trade lawful and He has forbidden usury." T.M.Q.

Allah (swt) says: [9-123] "Fight the Kuffar who gird you about and let them find firmness and know that Allah is with those who fear Him." T.M.Q.

Allah (swt) says: [65-7] "Let the man of means spend according to his means." T.M.Q.

Allah (swt) says: [2-283] "Let the trustee discharge his trust and let him fear Allah his God ." Allah (swt) says: [2-60] "Eat and drink." T.M.Q.

Also, Bukhari extracted on the authority of Hakim Ibnu Hizam ® who said: “The Messenger of Allah (saw) said: “The buyer and the vendor reserve the right to change their minds provided they do not separate.” Ibnu Maja reported on the authority of Abdullah Ibnu Omar who said: “The Messenger of Allah (saw) said: “Do give the employee his wage before his sweat dries.” Abu Dawood also reported on the authority of Abu Hurayrah who said: “The Messenger of Allah (saw) said: “Jihad is obligatory upon you with every Amir, whether he were just or tyrant.” In all of these texts, the address has been directed at the action, and the thing has not been mentioned. For instance also, Allah (swt) says: [35-12] "Yet from each kind you eat tender flesh." T.M.Q.

Allah (swt) says: [16-14] "It is He Who has made the sea so that you may eat thereof tender flesh." T.M.Q.

Allah (swt) says: [36-35] "So that they may enjoy its fruits." T.M.Q.

The address in here is also directed at the action, although the thing has been mentioned. Similar to this is the address related directly to the action of the servant. This state is different to the state of the text related to the thing, where the address is directed exclusively towards the thing, regardless of whether the action was mentioned alongside it or not. For instance Allah (swt) says: [5- 3] "Dead meat has been made forbidden to you." T.M.Q.

Allah (swt) also says: [2-173] "He has forbidden to you dead meat, blood and the flesh of the swine." T.M.Q.

Allah (swt) also says: [23-18] "And We have sent down water from the sky." T.M.Q.

Allah (swt) also says: [21-30] "And We have made from water everything that is living." T.M.Q.

Also, the saying of the Messenger of Allah (saw) pertaining the sea water: “Its water is pure and its dead flesh is Halal.” Here the address is directed at the thing without the mention of the action.

For instance, Allah (swt) says: [5-90] "O you who have believed, truly intoxicants, gambling, dedication of stones and divination of arrows are an abomination of Satan’s handiwork. Avoid such things that you may prosper." T.M.Q.

Allah (swt) says: [56-68] "Did you see the water that you drink." T.M.Q.

Allah (swt) says: [56-71] "Did you see the fire that you kindle." T.M.Q.

Allah (swt) says: [16-67] "And from the fruit of the date palm and the vine you get out wholesome drink and food." T.M.Q.

Allah (swt) says: [16-66] "And truly in cattle will you find an instructive sign from what is within their bodies between excretions and blood We produce for your drink milk pure and agreeable to those who drink it." T.M.Q.

The address in all of these texts is directed at the thing, though the action has been mentioned. Such an address is related to the thing; thus it is an outlining of a rule pertaining a thing. However, the rule’s relation to the thing is reflected in the fact that it outlines the rule of the thing vis-à-vis the action of the servant, not vis-à-vis the thing detached from the action of the servant, for it is inconceivable for a thing to have a rule unless it is related to the servant. Therefore, the difference in the state of the text becomes clear with regard to the manner in which the address is targeted.

This difference indicates that although the Shari'ah rule is the address of the Legislator related to the actions of the servants, some rules specific to things have however come to outline the rule of these things in an unrestricted manner, even though their rule was in relation to the servant as oppose to being isolated from the servant. This indication outlines to us through scrutiny that the rules of things have come by way of general evidence, which in turn has come to outline the evidence of the actions, and that whatever came specifically to things is in fact an exception from the general rule which had come as evidence for them through the evidence of the actions. This is so because scrutiny has revealed that the Shari'ah text, in which the address was directly targeted at the action, has come in general terms; thus all the things related to it would be Mubah because the request to perform or the option was general, encompassing all that which is Mubah vis-à-vis this request and the prohibition of something requires a text. For instance, Allah (swt) says: [2-29] "It is He Who created for you everything that is on Earth." T.M.Q. This means that the things which Allah (swt) created for us on earth are Mubah.

Allah (swt) also says: [2-275] "And Allah has permitted trade and forbidden usury." T.M.Q. This means that Allah (swt) has made the buying and selling of all things Mubah; thus the Ibaha of selling any of these things does not require an evidence, because the general evidence comprises everything; hence, the prohibition of selling something, such as alcohol for instance requires an evidence. Also, Allah (swt) says: [2 -168] "Eat of what is on Earth lawful and good." T.M.Q. This means that eating everything is Halal; thus the eating of a specific thing does not require an evidence to make it Halal, because the general evidence has made it Halal. As for the prohibition of eating something, such as dead meat for instance, this requires an evidence.

Allah (swt) says: [7-31] "Eat and drink but do not waste by excess." T.M.Q. This means that the drinking of everything is Mubah; thus the drinking of a specific thing does not require an evidence to make it Mubah, because the general evidence has made it Mubah. However, the prohibition of drinking a specific thing, such as intoxicants for instance, this requires an evidence. Similar to this, actions such as talking, walking, playing, smelling, inhaling, looking and other actions which man performs, the general evidences permitted everything related to them; thus the Ibaha of anything does not require an evidence, but the prohibition of anything related to these actions does require an evidence to make it forbidden.

Therefore, the evidences brought by the texts and targeted at the actions, have outlined the rule of things in a general and unrestricted manner; thus they do not require other texts to outline their rules. Therefore, the advent of specific texts related to things, once the general rule of these things had been outlined, serves as evidence stipulating that these specific rules have come to exclude the rule of these things from the general rule. Hence, the Shari'ah texts have come to outline the Shari'ah rule pertaining things, denoting that they are Mubah; hence, they are Mubah unless there exists a text to prohibit them. Hence the Shari'ah principle “The things are in principle Mubah.” These are the evidences of this article.

No comments: