Wednesday, August 12, 2009

Chapter 4: The Legally Responsible with respect to the Shari’ah Rulings

The following is the draft english translation from the Usul Al-Fiqh masterpiece of the Arabic book الشخصية الاسلاميَة الجزء الثالث (The Islamic Personality Volume 3 ) by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.

All the people are legally responsible [mukallaf] with respect to the legal rulings [ahkām]; thus it is said about the legal ruling [hukm shar’i] that it is the address of the legislator related to the actions of the servants.

There is no distinction in this respect between the Muslim and the kāfir; all of them are addressed by the address [khitāb] of the legislator, and all of them are legally responsible in terms of the legal rule. The evidence for this is the totality of texts about this matter, all of which clearly indicate that the Islamic Shari’ah is addressed to all people, irrespective of their being Muslim or kāfir. Allah (swt) says,
«وما أرسلناك إلا كافّة للناس بشيراً ونذيراً» “

And we have not sent you except as a giver of glad tidings and a warner to all mankind” (Saba’: 28),
and He (swt) says,
«قل يا أيها الناس إني رسول الله إليكم جميعاً»
“Say: O mankind! Verily, I am the messenger of Allah to you all” (al-A’rāf: 158),
and the Messenger of Allah (saw) said,

“I was sent to every red and black”, narrated by Muslim, that is, to all people.

Hence this address is general to all people, including the believer and the disbeliever.It should not be said that the address is about Imān in Islam and not the legal rulings [ahkām al-furu’iyyah] on grounds that it is an address about the message which is Imān in it not acting by the legal rulings. This is incorrect because the message is general in that it includes both Imān as well as the legal rulings with which it came. To specify the address to Imān alone is to specify without a specifying cause. Further if the intent was that all the people are addressed with respect to Imān in Islam and only the Muslims are addressed with the legal rules this effectively means the addressing of some people with only some of the rulings and their not being addressed with the rest. If it were permitted that some people were addressed with some rulings such that others were excluded from this address, this would be permitted in everything the Shari’ah came with, that is, the like of it would be permitted in the foundations of Islam related to Imān, because what is permitted in the legal rulings is permitted in other than them, and this is incorrect because the address is clear,

«رسول الله إليكم»
“I am the messenger of Allah to you”,

so believing in him is obviously included in the address, and the inclusion of the legal rulings is established by the clear text of the Qur’an.

Allah (swt) says,
«وويلٌ للمشركين • الذين لا يؤتون الزكاة»

“And woe to the polytheists. Those who give not the zakat…” (Fussilat: 6-7),

and He (swt) said,
«يقول الإنسان يومئذٍ أين المفر»
“On that day, man will say: “Where is the refuge?” (al-Qiyāmah: 10)

up until He (swt) says,
«فلا صدّق ولا صلّى»

“So he (the disbeliever) neither believed, nor prayed” (al-Qiyāmah: 31);
and He (swt) says,
«كل نفسٍ بما كسبت رهينة»

“Every soul is a pledge for what it earned” (al-Muddathir: 38),
up until He (swt) says,
«ما سلككم في سقر• قالوا لم نكُ من المصلين • ولم نكُ نطعم المسكين»

“What has brought you into Hell? They will say: “We were not of those who used to perform the prayers. Nor did we feed the poor…” (al-Muddathir: 42-44).

Further, Allah (swt) has commanded all people with the ritual worships, thus the disbelievers are included.

He (swt) says,
«يا أيها الناس اعبدوا ربكم»

“O mankind! Worship your Lord…” (al-Baqarah: 21),

and He says,
«ولله على الناس حجُّ البيت»

“And pilgrimage to the House is a duty that mankind owes to Allah” (āl-Imrān: 97).

These verses are explicit that Allah has made them responsible for the legal rulings, because they address the disbelievers with the legal rulings, so they are legally responsible with respect to them. Had they not been responsible for the legal rulings Allah would not have threatened them a severe punishment for not performing them, such as in

His saying,
«وويلٌ للمشركين • الذين لا يؤتون الزكاة»

“And woe to the polytheists, those who give not the zakat” (Fussilat: 6-7).

These verses affirm that Allah (swt) has addressed the disbelievers with some commands and some prohibitions of the specified legal rulings, so likewise they are addressed with the rest of the legal rulings. This clarifies then that the disbelievers are addressed with the entire Shari’ah, creed as well as jurisprudence, and that Allah (swt) will punish them for disbelief as well as nonperformance of the legal rulings. With respect to the (divine) address then there is no doubt that the disbelievers are addressed with the legal rulings. As for their actual performance of these legal rulings, the application of these legal rulings upon them by the state, and its forcing them to perform them, there are further details.

As for their acting on the legal rulings by themselves without being forced, there are two scenarios. If Islam is a condition, by a legal text, in the performance of the legal rulings in question, like the prayer, fasting, Hajj, Zakāt, other ritual worships and the like, then it is not permissible for them to perform them, and they are to be prevented from performing them, because Islam is a condition for these legal rulings, and thus they are not permissible with kufr. Examples of this include the testimony of the disbeliever on financial matters like the loan, and the disbelievers’ being a ruler or judge over Muslims. None of these, and the like of them of the legal rulings which a legal text has not permitted for the kāfir by making Islam a condition for their performance, are allowed to be performed by the disbelievers. As for all those legal rulings in which Islam is not a condition of performance, like the disbelievers fighting with the Muslims and the legal testimony in contracts like trade and medicine, they are allowed to perform them if they choose to do so.

This is with respect to their performing the actions of their own accord. As for their being forced by (the executive authority of) the state, then there are two scenarios. If the legal rulings are of the kind which came as a general address, unqualified by the condition of Imān, such that Islam is not a condition of performance or they are of those which the disbelievers were tacitly approved for not performing, then in these two cases they are not forced to perform them.

Thus the Khalifah does not punish the disbelievers for their not adopting Islam - except if they are from the polytheists of Arabia other than the Ahl al-Kitāb – due to the

His (swt) saying,
«لا إكراه في الدين»

“There is no compulsion in the deen...” (al-Baqarah: 256),

and his saying:
«حتى بعطوا الجزية عن يد وهم صاغرون»

“…until they pay the jizyah with willing submission, and are subdued” (al-Tawbah: 29),

and for the tacit approval (iqrār) of the Messenger (saw) for the disbelievers of Yemen to remain upon their religion. He sufficed with taking the Jizyah from them. Excepted from this general ruling are the polytheist Arabs other then the Ahl al-Kitāb due to Allah’s (swt) saying:

«تقاتلونهم أو يسلمون»
“You fight them or they shall submit…” (al-Fath: 16),
which is specific to the Arab polytheists alone. Similarly the disbelievers are not to be ordered to pray or be prevented from their own prayer, due to the tacit approval of the Messenger (saw) for them to remain on their worship, and for their churches which existed in Yemen, Bahrain and Najrān. He did not demolish the churches of those who did not become Muslim. This shows that they are to be left upon their belief and worship.

Likewise the ruling of Jihad is not applied on them nor are they forced to perform it, because the sought of fighting in the ayāt of Jihad is fighting the kuffār as a genus, and it is not conceivable that a kāfir fights himself. Equally they are not to be forced to abstain from alcohol, nor punished for its consumption, because there were Christians in Yemen who used to drink alcohol and were left to drink it, and because when the Sahābah opened lands they would not prevent the kuffār from drinking alcohol.

Likewise are all the legal rulings in which Islam is a condition for their validity, or for which the Messenger (saw) approved the kuffār to continue them, or the Sahabah consented on leaving the kuffār to perform them. In all these cases, the disbelievers are not to be forced to perform them, nor are these rules applied on them by the Khalifah.

However those legal rulings which are not as such, that is, Islam is not a condition in their validity, and no legal text came to show that they are not to applied upon the kuffār, then they are asked to perform them. These rules are to be applied on them and they are to be forced to perform them, and punished for leaving them. This is because in origin the disbelievers are addressed by the legal address, and in the case of there being not text to condition a ruling by the requirement of Imān or to allow them nonperformance, then the original general address remain upon its generality, thus including them. Therefore the disbelievers are made to comply with all the legal rulings except only that which a legal evidence makes an exception to the general rule.

The evidence for this is the Messenger’s implementation of these legal rulings upon the kuffār. It is affirmed that the Messenger (saw) dealt with them according to the Islamic legal rulings in the matters of transactions [muamalāt], and that he punished them for crimes (in line with the Islamic rulings for such crimes). From Anas, "that a Jew bruised the head of a slave girl between two stones, so she was asked ‘who did this to you, was it so-and-so or so-and-so?’ until the Jew was named and she nodded her head. The Jew was brought and he acknowledged his act. The Prophet (saw) commanded that he be punished, so his head was bruised with stones," narrated by al-Bukhāri.

From Abu Salamah ibn Abd al-Rahmān and Sulaymān ibn Yasār, relating from some men of the Ansār, "that the Prophet (saw) said to the Jews, beginning with them, ‘Let fifty men of you swear an oath.’ They refused, so he said to the Ansār: ‘Do what makes you entitled to your claim’. They said: ‘Should we make an oath on a matter we have not witnessed O Messenger of Allah?’ So the Messenger of Allah (saw) made the blood money on the Jews because he (the victim) was found amongst them," narrated by Abu Dawūd. From Jabir ibn Abdullah that he said, "the Prophet (saw) stoned a man from (the tribe of) Aslam, as well as a Jewish man and his wife", narrated by Muslim.

These ahādīth show that the Messenger (saw) used to punish the kuffar as he used to punish the Muslims, which indicates that they are to be forced to perform the legal rulings, and the legal rulings are to be implemented upon them as they are implemented upon the Muslims, and they are bound to them as the Muslims are bound in the legal rulings of transactions, punishments and other legal rulings; and nothing can be excluded from this except what the revelation has itself excepted in terms of implementation, not in terms of the legal address. These exceptions are those rules in which Islam is a condition for their validity, and what is textually established that they are not to be forced to perform them. It should not be said that Allah (swt) has made some legal rulings specifically for the believers like the prayer such that they alone are addressed by it, so any address which begins with,

«يا أيها الذين ءامنوا»

“O you who believe,”
is specific for the Muslims, and what came general, like the trade and ribā, is for the Muslims and the disbelievers. This is incorrect because the objective of that which begins with ‘O you who believe’ is reminding [tadhkīr] the believers of their Imān. It is not a specification for the believers alone.

The evidence for this is Allah (swt)'s saying:
«يا أيها الذين ءامنوا كُتب عليكم القصاص»

“O you who believe, qisās (equal retribution) has been prescribed on you...” (al-Baqarah: 178),
and it is established that the Messenger (saw) made the retribution for the killing upon the kuffār just as it is upon the Muslims without any difference, and also because the sayings of Allah (swt):

«لمن كان يرجوا الله واليوم الآخر»
“...for him who hopes for Allah and the Last Day”,

«فردّوه إلى الله والرسول إن كنتم تؤمنون بالله واليوم الآخر»
“Refer it back to Allah and the Messenger, if you believe in Allah and the Last Day...”,

and
«من كان يؤمن بالله واليوم الآخر»

“He who believes in Allah and the last day...”,
whose context indicate that they are a reminder to the believers about the (natural) requirement of Imān in Allah and the Last Day.

The first verse is,

«لقد كان لكم في رسول الله أسوة حسنة لمن كان يرجوا الله واليوم الآخر»
“Indeed in the Messenger of Allah, you have a good example for him who hopes for Allah and the Last Day.” (al-Ahzab: 21)

The second verse is,
«فإن تنازعتم في شيء فردّوه إلى الله والرسول إن كنتم تؤمنون بالله واليوم الآخر»

“And if differ in a thing, refer it back to Allah and His Messenger if you believe in Allah and the Last Day.” (al-Nisā’: 59)

The third verse is,

«ذلكم يوعظ به من كان يؤمن بالله واليوم الآخر»
“That will be an admonition given to him who believes in Allah and the Last Day.” (al-Talāq: 2)

All these verses are a reminder (and not a specification).
Likewise is the hadīth of the Messenger (saw),
"Whosoever believes in Allah and the Last, then let him speak good or keep silent", narrated by al-Bukhāri, Muslim and others.

All of this is a reminder of the Imān, and not a condition for legal responsibility with respect to the legal rulings.

Therefore, the conjunction of the address with ‘O you who believe’ does not specify it for the Muslims, but it is a reminder to them of their belief. Accordingly, the address of legal responsibility remains general, including both the disbelievers and the Muslims. Hence the kuffār are addressed with the entirety of the Shari'ah, foundations (creed) as well as branches (jurisprudence), and the Khalifah is commanded to implement all the legal rulings upon them. Excluded from the implementation, but not the address, are those legal rulings whose non-implementation on the kuffār or whose specificity to the Muslims is established by a text of the Qur’an or Hadīth.
All other legal rulings are implemented upon the kuffar as they are implemented on the Muslims.

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