Saturday, February 23, 2013

The Justice of Islamic Law

The Supreme Court of Canada has ruled recently in favor of upholding a Quebec law which states that there is no support for common law partners upon separation. The ruling came as a result of a vote between 9 judges, with 5 in favor of upholding the rule and 4 against.

The significance of this ruling lies at the foundation of its legal framework, which is that man is the source of legislation. This case begins with the notion that sexual relationships outside of marriage are normal, which, as a result, require the courts to deal with the consequences of breakups in such relationships.

It is naturally expected that justice results from any governing system, especially at the judicial level. This recent case provides a startling example of how laws are struck down or upheld by a mere vote.  The Supreme Court decision goes to show how man-made legislation can vary with profound implications on a major social pillar of society, the family, simply as a result of a difference of opinion.

One of the most visible flaws of man-made laws is its random variations over time and from one person to another. What is wrong and unacceptable one day becomes right and acceptable the next day. Such turmoil is caused by the limited nature of the human mind. The human mind’s main flaws are as follows:
  • Prone to disparity. Different people will reach different conclusions about the same issue under the same circumstances. For example, although the panel of judges were presiding over the same case, they came to different conclusions.
  • Limited in its capacity to think. Humans are different in their ability to understand and process facts.
  • Influenced by the environment. Humans are naturally influenced by societal norms, personal experiences and influential forces in societies.
  • Subject to change over time. For example, in the past in Canada, relationships outside of marriage were not an acceptable norm and homosexuality was considered a crime. However, today, these lifestyle choices are considered legally acceptable relationships.

There are many examples of such changes in laws and norms over time and from one place to another. This is the nature of human thinking when it is not bound by a comprehensive, correct and an unchanging, source of guidance.

Human judgement is naturally limited and inherently incapable of providing justice in this life, whereasIslamic laws (shari'ah) have the ability to effectively solve societal problems in a just and comprehensive manner, as they come from the Creator of man.  For Islamic laws (shari'ah), however, to provide justice and the correct solutions, they must be implemented comprehensively in an Islamic governance system (Khilafah).

Governance and the sources of legislation in Islam
It is well known that the system of governance in Islam is the Khilafah. This system is well rooted both in the Islamic shari'ah and the history of Islam. The Prophet (saw) said, "The Prophets ruled over the children of Israel; whenever a prophet died, another prophet succeeded him, but there will be no more prophet after me. There will soon be khulafah and they will number many. Fulfil the bayah [i.e. pledge of allegiance] to them one after another and give them their dues for Allah will verily account them about what He entrusted them with". [Al-Nawawi, Riyad us Salihin]

The Khalifah is the guardian of the people and his task is to ensure that the Islamic laws (shari'ah) are implemented so that justice prevails. Allah (swt) says, "And if you judge, judge with justice between them. Verily, Allah loves those who act justly". [TQM 5:42]

Under the Khilafah, the power of legislation lies not in man but in the Creator of man. There are many ayat in Quran that clearly state that every rule in this life has to come from what Allah (swt) has revealed to the Prophet (saw). Allah (swt) says:

"And so judge (you O Muhammad) between them by what Allah has revealed and follow not their vain desires…" [TQM 5:49]

The command (or the judgement) is for none but Allah". [TMQ 12:40]

 Consequently, it is the shari'ah, revealed to us from Allah (swt) – that governs and not the people. Allah (swt) in His perfect Wisdom and Mercy gave humanity the righteous Aqeedah of Islam. All laws emanate from the Quran and Sunnah, the two main sources of legislation, leading to a consistent and just regime of rules over many centuries when Islam was implemented in the Khilafah State.

The Shari'ah rules within the Islamic governing system
The rule of law at any time relies on the people, governing system and the judiciary system. Islamic history is a witness to how the three aspects interacted to establish and sustain the implementation of Islamic law.

a) The people
Allah (swt)says,

"O you who believe! Obey Allah and obey the Messenger (Muhammad), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger[TMQ 4:59]

Allah has thus obliged Muslims to obey the ruler who rules by the shari'ah. Moreover, the Prophet (saw) said, "A Muslim is obliged to hear and obey whether he likes it or not, except when he is required to do something that is sinful, in which case, there is no obligation to hear or to obey". [Bukhari and Muslim]

Unlike democracy, where obedience to the law of the land is achieved through coercion by the state, Muslims historically lived by and obeyed the laws of Islam without the need for coercion. This is because respect for and obedience to the laws of Islam is a matter of doctrinal and creedal obligation upon Muslims, which was the reason behind the success of the Khilafah. Thus, when Allah (swt) ordains upon Muslims to obey their rightful ruler, there is no option but to observe this command. This principle is well established in Islam from numerous ayat and ahadith.

b) The Khalifah
The head of the governing system in Islam is the Khalifah. The first Khalifah of Islam, Abu Bakr (ra), in his inaugural address said, "O People, I have been appointed over you, though I am not the best among you. If I do well, then help me. And if I act wrongly, then correct me... If I disobey Allah and His Messenger, then I have no right to your obedience".

The second Khalifah of Islam, Umar bin al-Khattab (ra) enunciated the attributes required of a Khalifah,"By Allah, O Ibn 'Abbas, only the one who is strong without being violent, who is gentle without being weak, who is economical without being miserly, and who is generous without being wasteful is worthy of this affair".

The Khalifah fulfils, amongst the myriad of other obligations, the following as part of his responsibilities. The Khalifah must:
  1. Guard and protect Islam and its way of life and possess the appropriate defence capabilities to defend the Islamic State territories.
  2. Establish justice when disputes arise between litigants so that the strong do not oppress the weak.
  3. Implement the Islamic (Hadd) punishment (i.e. criminal laws) so that the prohibitions of Islam are not violated.
  4. Manage the funds of the treasury (Bait-ul-Mal), invest in public projects he considers necessary without being wasteful and pay the public sector employees' salaries from the treasury.
  5. Assume personal responsibility over the affairs of the people and execute the policies of the Ummah without overreliance on delegation of authority.

c) The judges
The Khilafah also has a strong judiciary which implements the laws of Islam, dispenses justice and keeps the leadership accountable. Everybody under the shari'ah is equal before the law and judgment is pronounced without fear or favour. Principally, there are three types of judges in Islam:
  1. The Qadi who settles disputes between people in private matters and implements the penal codes,
  2. The Muhtasib who is responsible for dealing with community-wide issues that affect the public and wider society, e.g. unscrupulous traders who harm the wider public, and
  3. The Mazaalim who is responsible for investigating and settling the disputes between the rulers and the ruled. Essentially, this judge keeps the leadership accountable and in check.

When the Prophet (saw) was the head of the Islamic State in Medina, he was petitioned to intercede for a noble lady who had committed theft, but the Prophet (saw) said, "The nations before [us] were destroyed because if a noble person committed theft, they used to leave him, but if a weak person amongst them committed theft, they used to inflict the legal punishment on him. By Allah, if Fatima, the daughter of Muhammad, committed theft, Muhammad would cut off her hand!" [Bukhari and Muslim]

This hadith illustrates that even if the Prophet's (saw) daughter had committed a crime, despite his position as the head of the Islamic State, he would have implemented the same criminal punishment upon his daughter without favour. Such attitude is inimical to that of the rulers who litter the Muslim world today who, with their families and entourage, enjoy unbridled favour and operate above the law. This is a direct result of the absence of the Khilafah in the Muslim world.

A great example of how the Islamic judiciary system functions was when the second Khalifah of Islam, Umar bin al-Khattab (ra), outlined the attributes a judge required in an Islamic court. He said, "The task of the judiciary is an undisputed obligation and a sunnah to be followed. Seek to comprehend when people have recourse to you, for it is no use to speak of a right if it is not put into effect. See that your face, your justice and your sitting are the same between people, such that the lord does not hope for your partiality, nor the weak despair of your justice…" [Al-Mawardi]

May Allah (swt) help us do our part to please Him and establish the Khilafah in the Muslim lands as a beacon of justice for the world and to liberate people from the misery of man-made rules and systems. Ameen.

“Allah has promised those who have believed among you and done righteous deeds that He will surely grant them succession [to authority] upon the earth just as He granted it to those before them and that He will surely establish for them [therein] their religion which He has preferred for them and that He will surely substitute for them, after their fear, security, [for] they worship Me, not associating anything with Me...”
[TMQ 23:55]

Book: The Inevitability of the Clash of Civilisations by Hizb ut-Tahrir

بسم الله الرحمن الرحيم

The Inevitability of the Clash of Civilisation
(Hatmiyyat sira'a Ul-hadharat)

Hizb ut Tahrir
1423 AH/ 2002 CE

The Meaning of Civilisation (Hadhara)5
The Meaning of Dialogue
(al-hiwar) between Civilisations
The Idea of Accepting the Other19
The Idea of the Alternative Civilisation27
The Clash between Civilisations
The History of the Clash between
Islam and other Civilisations
Forms of the Clash of Civilisations
Intellectual Struggle (as-sira' a ul-fikri)
Economic Struggle42
Political struggle44
Military Conflict47
The Probable Evidences of those who deny
Civilisation Struggle in Islam
Rebutting the Probable Evidences of those Denying
the Offensive Jihad (Jihad ut-talab)

When we say dialogue or clash, we mean Muslims, their deen and their civilisation on one side; and Christians and their religion and the Capitalists and their civilisation, on the other side. It is a malicious attempt that the leaders and intellectuals of the Capitalist civilization differentiate between Islam and its followers i.e. between Islam and Muslims. However they attempt to delude the naïve from amongst Muslims, attempting to reduce the rancour against them when they strike a Muslim people, or when they attempt to spread the concepts of their civilisation among Muslims. They know that the Islamic ‘aqeedah still remains in the souls of Muslims and it is strong in the majority of them. So if they openly declare their enmity to Islam, they will stir up Muslims and provoke them. Thus they use these deceptive sentences as a weapon to anaesthetize Muslims and to deceive them. They concentrate in the definition of this dialogue upon three matters:

1. Equality between religions and civilisations in the dialogue without superiority or preference of a religion or civilisation over another.
2. The limit of the dialogue is restricted to mere knowledge of the other's opinions without addressing its refutation or invalidation.
3. Creating an alternative civilisation through the method of arriving at the common denominators between the two religions and two civilisations.

A.   Equality and equivalence between religions and civilisations, and non-preference between a religion and another or a civilisation and another. How strange for the one claiming Islam, then he equalises between Islam and kufr, between atheism and trinity and tawheed, between the denier of the Prophethood of Muhammad and the believer in it, between the worship of Allah and worshipping creatures, between fornication and marriage, between permitting homosexuality and forbidding it., tawheed to polytheism, halal to haram. Subordination is rejected, equality is rejected, and remaining about the preference of Islam .

B.  Accepting the other as it is and discovering it without pronouncing judgments against it, but rather understanding and recognizing its views without restriction or condition. "Say: 'O you disbelievers! I do not worship that which you worship. And you do not worship what I worship'" for dialogue with disbelievers (kafireen) and His swt saying: "If one of the polytheists seeks your protection, grant him protection until he hears the word of Allah then escort him to a place of safety" for dialogue with polytheists; this is an incorrect deduction and outside its context. Surat Al-Kafirun has pronounced a judgment against them, which is that they are kuffar and will remain upon their kufr without ever believing. Allah swt knew that they would never believe and He informed the Prophet (saw) about that. He (swt) commanded him to convey it to them and to reject their offer of mutual exchange of deities yearly. So there remains no place for dialogue after Allah swt informed that they would remain disbelievers until death. This Surah descended regarding specific people. Allah spoke the truth.

C.  The objective of dialogue between civilisations is interaction to create an alternative superior civilization through the means of seeking to find out what is common and human; a matter that leads to the advance and flourishing of civilisations, and spreading of peace. The objective of dialogue between religions is to prevent Islam from entering the arena of the struggle. This, in turn, leads to progress, flourishing and spreading peace. How bad is the deduction of this concept by someone using His swt saying: "Say: 'O People of the Book. Come to a just word between us: That we worship none but Allah nor associate anything with Him nor some of us taking each other as lords". [So he says: "This is a dialogue with others from a position of equality.' Then he interprets His swt saying: "To a just word" into the word "common (between us" (and) "we do not say we dialogue to (reach) to our word." This understanding of the ayah is slandering upon Allah, as the meaning of 'sawaa' is just ('adl), i.e. a just word which what the ayah explains subsequently. There is nothing in the ayah, whether in its wording or its meaning, that indicates we invite them to a common word. "We do not say that we dialogue to our word" so nothing remains except that he wants the common civilisation.

In brief, the clash of civilisations is an inevitable matter. It existed in the past, exists now and will remain until the clash ends shortly before the Hour, Do not be deceived by the callers to the dialogue who place their heads in the sand and condone humiliation and defeat. Make the preparations required for the conflict, since the Western civilisation has knocked you down militarily, politically and economically; however they will never defeat you intellectually. Your ‘aqeedah is hard to defeat; and it remains alive in the souls, except that some concepts of your civilisation coming out from your ‘aqeedah have been afflicted with some contamination and some dust has struck them. So work to purify them by returning to the Book and Sunnah. Beware of accepting a saying without evidence, or accepting a saying with evidence from a non-mujtahid. This is the period of ignorant leaders, who give fatawa without knowledge. So beware of them, and search for sincere active scholars, and take your deen from them, for they are the lamps in the darkness. And know, that the ultimate triumph and victory is for Islam and Muslims. Allah and His Messenger promised us in definite reports so be confident in the good promise of Allah.

Tafsir Al Quran: Surat Al Qalam (The Pen) - Sheikh Abu Talha (Part 1/6)

Part 1/6: Sheikh Abu Talha expounds on Surat Al Qalam (Chapter of The Pen). 

At a time when the western world has increased their attacks, slander, libel and insults against Islam, Prophet Mohammed (SAW), the Quran, Hijab and other Islamic symbols this surah describes how these insults and acts against the honor of Islam are not new and the Quran takes us back into time when Prophet Mohammed (SAW) faced similar situations in Makkah and how Allah (SWT) answered the kuffar by the Quran and defended His Prophet. 

Abu Talha explains the social environment of Makkah and the greater Arabia during the time this surah was revealed to Prophet Mohammed (SAW) & compares it with the current socio-political situation in the world, especially in the Muslim world.


PART 2: Which non-Muslims can become dhimmi and what are the conditions of the Jizya?

1. Who are the Ahl-ul-Harb (people of war) from whom the giving of the Jizyah is accepted with the meaning of convening the 'Aqd of Dhimmah with them and the cessation of the state of war with them following on from that?
There are a number of points of view amongst the Fuqahaa in regards to whom from the disbelievers it is permitted to contract the 'Aqd of Dhimmah with and we will summarise the most significant of these views as follows:
1) The Hanafi Madh'hab
The following came within the text of 'Tuhfat-ul-Fuqahaa': "The taking of the Jizyah and the contract of the Dhimmah is legitimate in respect to all of the disbelievers except for the apostates from the Arab Mushrikeen as the Jizyah is not accepted from them" (Tuhfat-ul-Fuqahaa, As-Samarqandiy 526/3. Refer to Badaa'i As-Sanaa'i 110-111/7, Fat'h-ul-Qadeer 49/6 and the Haashiyah of Ibn 'Aabideen 414/3).
2) The Maaliki Madh'hab, Al-Awzaa'iy and the Fuqahaa of Ash-Shaam
Al-Qurtubi said: "Al-Awzaa'iy said: The Jizyah is taken from every idol and fire worshipper or denier (i.e. atheist) and the Maaliki Madh'hab states the same as it viewed that the Jizyah is taken from all of the different types of Shirk and denial (unbelief) whether 'Arab or foreign (i.e. non-Arab), Taghlibiy or Quraish whoever they may be, with the exception of the Murtadd (apostate)" (Al-Jaami' Al-Ahkaam Al-Qur'aan, Al-Qurtubi 110/8. Refer also to Qawaaneen Al-Ahkaam Ash-Shar'iyah p175, As-Sharh Al-Kabeer of Ad-Dardeer and the Haashiyah of Ad-Dusooqi in addition to Manh Al-Jaleel 213-214/3).
3) The Shaafi'iy Madh'hab
Al-Imaam An-Nawawi defined those whom it is permitted to make the contract of Adh-Dhimmah with and whom the Jizyah is accepted from. He said: "Ash-Shaafi'iy said: It is not accepted from other than the people of the book and the 'Arab and foreign Majoos" (Sharh As-Saheeh Muslim, An-Nawawi 313/7. Refer also to Al-Iqnaa' of Al-Maawardiy p179, Al-Minhaaj and its Sharh Al-Mughni Al-Muhtaaj 244/4, Al-Iqnaa' fee Hall Alfaazh of Abu Shujjaa' 194/2, the Haashiyah of Al-Bajeeramiy upon Al-Iqnaa' 249-250/4 and Fat'h-ul-Baari 259/6).
4) The Hanbali Madh'hab
It was mentioned in Al-Mughni: "It is not allowed to take the Jizyah except from the Jews and Christians and the Majoos, it is not affirmed for them and embracing Islaam is accepted alone from them and if they do not become Muslims then they are killed. This is the Zhaahir (apparent) opinion in the Madh'hab of Ahmad (Bin Hanbal)" (Al-Mughni of Ibn Qudaamah 573/10 and refer also to Ash-Sharh Al-Kabeer of Al-Maqdasiy 574-575).
The above in a general way is what was mentioned in the Fiqhi Madhaahib in regards to whom it is permitted and not permitted to contract the Dhimmah with and take the Jizyah from, from amongst the people of war.
In summary to what has preceded and with an explanation of how to link these Fiqhi opinions to the non-Islamic existing factions in our current age in light of their different types and beliefs that they hold, we say:
There is the opinion of the Ahnaaf and a report attributed to Al-Imaam Ahmad that states that it is permitted to contract the Dhimmah with all of the Kuffaar (disbelievers) except from the Arab Mushrikeen (polytheists). And who is intended by them are: Every person affiliated to an Arab kind and does not profess the Jewish, Christian or Majoosi (Magian) belief due to the existence of Shar'iyah texts (Nusoos) permitting the contraction of the Dhimmah with them.
Based upon this view then it is permitted in our current age for the Islamic State to contract the Dhimmah with all non-Muslims from all the non-Arab peoples irrespective of their religions and beliefs including the communists and atheists. As for the Arabs who are not Muslim, then if they are Jewish, Christian or Majoos then the Dhimmah is contracted with them. If they are not of these and they believe for instance in communism or atheism or any beliefs that contradict the Islamic beliefs and even if they claimed to be Muslims, then it is not permitted to contract the Dhimmah with them. As a consequence the war against them remains legitimate and this is the first opinion.
The second opinion states: It is permitted to contract the 'Aqd of Adh-Dhimmah with all of the disbelievers irrespective of their religion and beliefs, like the Jews, Christians or even communists and atheists and other than these. This is irrespective of the kind whether they are Arabs or belong to non-Arab races and peoples. This is what has come in the Maalikiy Madh'hab and was stated by Al-Awzaa'iy amongst others. Based on this view then in our current age it is permitted for the state that has adopted Islaam (as its system) to contract the Dhimmah with non-Muslims from amongst the people of war whatever their religions are and even those who are communists or atheists even if in origin they belong to the Arabs.
The third opinion in this issue: It is the opinion of the Shaafi'iyah and the most apparent opinion of Ahmad's Madh'hab and its summary is:
That there exists no place within the Islamic State for non-Muslims other than the Samaawiyah religions like Judaism and Christianity or those who have a resemblance to the Samaawiy religions like Majoosiyah to become subjects. So it is permitted to contract the Dhimmah with these whilst those who hold different religions and beliefs like idol worshippers, communists and atheists, it is not permitted to contract the Dhimmah with them. This is whether they are Arab or non-Arab and as such the war remains legitimate in regards to them.
Now at this point we will present the Adillah (evidences) from the Shar'iyah Nusoos (texts) that the above opinions relied upon and then outweigh the opinion that appear to us to most accord to the understandings of these texts.
The evidences of the aforementioned opinions
The opinion that nothing other than the embracing of Islaam or killing is accepted in regards to the non-Muslims Arabs who are not from the Jews, Christians and Majoos is deduced from the Aayah:
قُلْ لِلْمُخَلَّفِينَ مِنَ الْأَعْرَابِ سَتُدْعَوْنَ إِلَىٰ قَوْمٍ أُولِي بَأْسٍ شَدِيدٍ تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ
"Say to the Arab Bedouins who lagged behind: "You shall be called to fight against a people given to great warfare (Uol-il-Ba's Shadeed), you shall fight them, or they shall submit to Islaam"
(Al-Fath, 48:16)
This is with the consideration that the Uol-il-Ba's Shadeed refer to the Arab Mushrikeen and Murtadeen (apostates) to the exclusion of all others. The Aayah states that they have only two options available to them, Al-Islaam or Al-Qitaal (to be fought) (Refer to 'Ahkaam Al-Qur'aan' of Ibn-ul-'Arabiy 1693/4, 'Tafseer' of Al-Aaloosiy 105/26, 'Fat'h-ul-Qadeer' of Ibn-ul-Himmaam 49/6). As such it is not permitted to contract the Dhimmah with them.
In regards to this Ash-Sheikh Taqiy ud-Deen An Nabhaani said: "As for the Arab Mushrikeen then the Sulh (treaty) and the Dhimmah is not accepted from them but rather they are invited to Islaam and if they become Muslim they are left otherwise they are fought. Allah سبحانه وتعالى stated:
سَتُدْعَوْنَ إِلَىٰ قَوْمٍ أُولِي بَأْسٍ شَدِيدٍ تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ
"You shall be called to fight against a people given to great warfare (Uol-il-Ba's Shadeed), you shall fight them, or they shall submit to Islaam."
(Al-Fath, 48:16)
So the Aayah relates to those whom the Messenger of Allah صلى الله عليه وسلم fought and they were the Arab idol worshippers. So it indicates that they are fought if they do not embrace Islaam". (Ash-Shakhsiyah Al-Islaamiyah, 3rd part p204).
Also the author of 'Fat'h-ul-Qadeer' related a Hadeeth from the Nabi صلى الله عليه وسلم narrated by Ibn 'Abbaas (ra):"Nothing is accepted from the Arab Mushriks except for Islaam or the sword" (Fat'h-ul-Qadeer, Ibn ul-Himmaam 49/6 and I have not found this Hadeeth anywhere except in this book).
It is also not accepted from the Murtadeen (apostates) from Islaam after having accepted it irrespective of the race or origin that they belong. By agreement of all the Fuqahaa nothing is accepted from them except their return to the fold of Islaam. If they do not then war remains legitimate and standing until they repent or cease. The Nabi صلى الله عليه وسلم said: "Whoever changes his Deen then kill them" (Saheeh Al-Bukhaari 6922 from Ibn 'Abbaas, Marfoo'an. Fat'h-ul-Baari 267/12).
The permissibility of contracting the 'Aqd of Dhimmah with the Ahl-ul-Kitaab (People of the book) is based upon the Aayah of Al-Jizyah which includes both the Arabs and non-Arabs. The permissibility of convening the 'Aqd of Adh-Dhimmah with the Majoos is based on the Hadeeth recorded in Saheeh Al-Bukhaari from 'Abdur Rahmaan Bin 'Auf: "That the Messenger of Allah صلى الله عليه وسلم took it (i.e. the Jizyah) from the Majoos of Hajar (Bahrain)" (Saheeh Al-Bukhaari 3157, Fat'h-ul-Baari 257/6). The Majoos of Hajar were Arabs, and the Daleel for accepting the Jizyah from non-Arab Majoos was mentioned earlier in the discussion on the previous Mas'alah (issue) represented in the Hadeeth related by Al-Mugheerah Bin Shu'bah when he encountered the representative of Kisraa (Persian leader).
The following was mentioned in 'Ad-Durru-l-Mukhtaar' on the Matn (text) of 'Tanweer Al-Absaar' in regards to the Hadeeth of the Jizyah: "And it applies upon the person of the Book and the Majoosiy and even if they are Arab due to his صلى الله عليه وسلم's placing it upon the Majoos of Hajar" (Haashiyah Ibn 'Aabideen 414/3).
So based upon this, barring those who have been mentioned with a specific Daleel (evidence) allowing the Jizyah to be taken from them, the warring with them remains legitimate due to the general evidence:
فَاقْتُلُوا الْمُشْرِكِينَ حَيْثُ وَجَدْتُمُوهُمْ
"Then kill the Mushrikeen wherever you find them"
(At-Taubah, 9:5)
Whilst those who held the opinion that it is permissible to convene the 'Aqd (contract) of Adh-Dhimmah with all of the Kuffaar from all religions and beliefs whether Arab or non-Arab, relied upon the generality of the Hadeeth related by Buraidah in Saheeh Muslim mentioned previously. It states: "When you meet your enemy from the Mushrikeen then call them to three matters... until he said...Then if they refuse (i.e. enter into Al-Islaam as Muslims) then ask them for the Jizyah. If they respond positively then accept that from them and refrain from them (i.e. fighting them)..."
This Hadeeth indicates that the enemy Mushrik is offered the Jizyah and that the Dhimmah is contracted with them built upon that if they accept it (the Jizyah) and reject entering into Islaam.
The expression 'enemy from amongst the Mushrikeen' in the Hadeeth is general to encompass all of its types, Arab and non-Arab just as it is general for all beliefs and religions other than Islaam. This opinion is the Raajih (strongest) from the Madh'hab of Maalik and it is the opinion that was voiced by Al-Awzaa'iy and the Fuqahaa of Ash-Shaam amongst others.
Al-Imaam An-Nawawi said in his explanation of the Hadeeth of Buraidah: "This is what Maalik used as evidence, Al-Awzaa'iy and those who agreed with them in regards to taking the Jizyah from every (type of) Kaafir whether Arab or non-Arab, from the people of the Book, the Majoos or other than them" (Shar'h Al-Muslim An-Nawawi 313/7).
As-San'aaniy said: "The Hadeeth is a Daleel indicating that the Jizyah is taken from every Kaafir (disbeliever), from the book or not, from the Arab or non-Arab due to the statement: 'Your enemy' which is 'Aamm (general)... He then said: And that which is apparent is the generality of taking the Jizyah from every Kaafir due to the generality of the Hadeeth of Buraidah. As for the Aayaat – meaning the Aayah of Al-Jizyah that orders the fighting of the Ahl-ul-Kitaab until they give the Jizyah from their hands and they are Saaghiroon (submissive) – then it has established the taking of Jizyah from the Ahl-ul-Kitaab and it does not oppose taking it from other than them or not taking it. Whilst the Hadeeth makes clear that it is taken from other than them and including the Ahl-ul-Kitaab within 'Your enemy' is consistent... Until he said: As for not taking it from the Arabs then this is because it was legislated until after the Fat'h (Makkah, 8 Hijrah) and the Arabs had entered into Islaam. There remained no one to fight and no one to take as a Sabiy after Al-Fat'h and no one to put the Jizyah upon. Indeed those of them who left Islaam after that then there was no choice except to face the sword or return to Islaam just as this the Hukm (legal ruling) in regards to the Ahl-ur-Riddah (people of apostasy)... He then said: This Hukm continued after his time صلى الله عليه وسلم, the Sahaabah (rah) conquered the lands of the Romans and Persians and amongst their subjects their existed Arabs especially in Ash-Shaam and Al-Iraaq and they did not differentiate between the Arab and non-Arab. Rather the Hukm of As-Saby (taking prisoners as booty) and the Hukm of Jizyah was made general upon all whom they conquered. And with this it is known that the Hadeeth of Buraidah came after the revelation of the obligation of the Jizyah. And its obligation was after the Fat'h and it was made obligatory in the eighth year at the time of the revelation of Soorah Baraa'ah (At-Taubah)" (Subul As-Salaam, As-San'aaniy 47/4).
Ash-Shawkaani said in 'Nail Al-Awtaar' in regards to the Hadeeth of Buraidah: "His words: 'Ask them for the Jizyah', its apparent meaning is that there is no differentiation between the foreign (non-Arab) disbeliever and the Arab disbeliever and non-Kitaabiy (people of the book)..." (Nail Al-Awtaar, Ash-Shawkaani 245/7).
And Ash-Shawkaani also stated in his book 'As-Sail Al-Jarraar': "The apparent meaning of the evidences dictates that the Jizyah is taken from any Kaafir (disbeliever) makes it obligatory to refrain from fighting him... just like what came in the Hadeeth of Buraidah... 'That when the Messenger of Allah صلى الله عليه وسلم appointed an Ameer for an army or expedition...Then he mentioned...then if they refuse then ask them to give the Jizyah. Then if they respond positively accept this from them and refrain from (fighting) them.' His statement: 'The Messenger used to...' indicates that this was the same for every army that he sent out and this statement does not negate the statement of Allah:
حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ
"Until they pay the Jizyah with willing submission, and feel themselves subdued"
(At-Taubah, 9:29)
The Ahl-ul-Kitaab are one type from amongst the types of the disbelievers of whom it is obligatory to refrain from fighting if they give the Jizyah. This is also not negated by what has come in regards to the command to fight the Mushrikeen in the Aayah of As-Saif (the sword) (At-Taubah, 9:5) and other Aayaat. This is because fighting them is Waajib (obligatory) unless they give the Jizyah in which case refraining from fighting them is obligatory just as it is obligatory to refrain from them if they embrace Islaam. And this generality is not negated by what he صلى الله عليه وسلم did when he commanded the Jews and Christians to be expelled from Jazeerat-ul-Arab (the Arabian Peninsula) (Note: Saheeh Muslim: 'Indeed I am expelling the Jews and Christians from Jazeerat-ul-Arab until I have no left except Muslims' (1767) and in the two Saheehs: 'Expel the Mushrikeen from Jazeerat-ul-Arab' (3053) Fat'h-ul-Baari 170/6) and in Muslim 1637, 1258/3. This does not mean the Arabian Peninsula that stands today but rather the borders of Al-Hijaaz or Makkah and Al-Madeenah or other opinions. Refer to: An-Nihaayah of Ibn Al-Atheer 268/1 and Fat'h-ul-Baari 171/6). Its aim is that it is not permitted to make a treaty with them in the Jazeerat-ul-Arab and this does not negate the permission to do this and place the Jizyah upon them if they are not in Jazeerat-ul-Arab. The summary is that whoever claims that the Jizyah is not permitted to be taken from a certain faction from amongst the factions or types of disbelievers and that they only have the choice between embracing Islaam or facing the sword, then they need an evidence for this. And there is no evidence that can be used as proof except for that which relates to the Murtadd (apostate)" (As-Sail Al-Jarraar, Ash-Shawkaani 570-571/4).
In addition Ibn ul-Qayyim outweighs as the strongest view that it is permissible to take the Jizyah and contract the 'Aqd of Adh-Dhimmah with all of the disbelievers of every kind and religion. This is based upon the permissibility of taking it from the Majoos as they are not from the Ahl-ul-Kitaab and as such every disbeliever is attached to them (in ruling) (Note: This is the Daleel of the Madh'hab of Maalik in regards to taking the Jizyah from all of the disbelievers except for the Murtaddeen (apostates): It was stated in 'Al-Mudawwanah' of Imaam Maalik (46/3): Maalik stated in regards to the Berber Majoos: That 'Uthmaan Ibn 'Affaan took the Jizyah from them.
Maalik said in relation to the Majoos what reached you from 'Abdur Rahmaan Bin 'Auf that he said: The Messenger of Allah صلى الله عليه وسلم said: "Treat them with the same Sunnah (way) as the Sunan (ways) of the Ahl-ul-Kitaab." In my view therefore all peoples (nations) are accorded the same status as the Majoos).
Ibn ul-Qayyim stated: "A group said: It applies to all peoples that if they give the Jizyah then it is accepted from them. The people of the book are (proven) by the Qur'aan and the Majoos by the Sunnah. And others are joined to them because the Majoos are from the people of Shirk (polytheism) and they have no book and as such the evidence for them is a Daleel for all of the Muskrikeen (polytheists). It is only not taken from the Arab idol worshippers because they all accepted Islaam before the Aayah of the Jizyah was revealed because it was revealed after Tabook. And the Messenger of Allah صلى الله عليه وسلم had finished fighting the Arabs and bound all of them to Islaam and due to this it was not taken from the Jews who fought against him because it had not been revealed yet. So when it was revealed it was taken from the Christian Arabs and the Majoos and had there been at that time idol worshippers remaining to pay it then it would have been accepted from them just as it was accepted from the people of the As-Sulbaan and An-Neeraan (fire worshippers)! And there is no difference or influence given regard to in respect to the severity of disbelief of one group over another (This indicates a rebuttal of the Hanafi and Hanbali Madh'hab in regards to this idea: Refer to 'Badaa'i As-Sanaa'i: 110-111/7, Fath ul-Qadeer 49/6 and Al-Mughni of Ibn Qudaamah 573/10). As such the disbelief of the idol worshippers is not more severe or regarded as worse than the disbelief of the Majoos and what is the difference between idol worshipping and fire worshipping! Indeed the Kufr (disbelief) of the Majoos is worse as the idol worshippers used to accept the oneness of Ruboobiyah and that there is no creator other than Allah but rather they worshipped their deities in an attempt to gain closeness to Allah.
In 'Ad-Deen Al-Khaalis' As-Sayyid Muhammad Hasan wrote (p182-183/1): "The disbelievers whom the Messenger of Allah صلى الله عليه وسلم fought... used to accept the Tawheed (oneness) of Ruboobiyah and that none other than Him creates, provides sustenance and manages affairs however the issue that they made them disbelieve was that they did not bear witness to the Tawheed Al-Uloohiyah, that none other than Him alone should be supplicated to, worshipped, feared, sought for hope, reliance and help". Refer to: 'Ar-Raudah An-Nidiyyah Sharh Al-'Aqeedah Al-Waasitiyah p9-10).
And they did not believe that there were two creators: One the creator of good and the other the creator of evil as the Majoos said. And they did not seek to make Halaal marriage to mothers, daughters and sisters and were upon remnants of the Deen of Ibraaheem (as). As for the Majoos, they were not upon a book in origin and they did not follow a Deen from any of the Prophets either in their beliefs or Sharee'ah rules. The report that states that they have a book and that their Sharee'ah goes back to what happened between their king upon his daughter has absolutely no truth or validity to it (Refer to the Khabar in 'Al-Umm' of Ash-Shaafi'iy: 173-174/4, in the Musannaf of Abdur Razzaaq: 10029, Sunan Al-Bayhaqi: 188-189/9 and Ad-Diraayah Fee Takhreej Ahaadeeth Al-Hidaayah: 134/2, Fath ul-Baari: 261/6).
And even if it was verified to be true then they still would not be Ahl-ul-Kitaab (people of the book) as the Book has been removed and their Sharee'ah has been invalidated and they did not remain upon anything from it. And it was well known that the Arabs had been upon the Deen of Ibraaheem (as) and that they had Suhuf (scriptures) and a Sharee'ah. The change towards worshipping idols in respect to the Deen of Ibraaheem (as) and his Sharee'ah is not greater than the change of the Majoos in respect to the Deen of their prophet and their book even if this was true. This is because it is not known from them that they held on to anything from the Sharee'ah's of the prophets (as) which is in contrast to the position of the Arabs! So how can the Majoos whose Deen is the most ugliest of Deens be seen in a better light and condition as compared to the Arab polytheists? Then Ibn ul-Qayyim declared that he views as strongest that the Jizyah is taken from all of the Kuffaar and even the Arabs who do not follow the religions of Judaism, Christianity and the religion of the Majoos and he states: That this opinion is the most correct in terms of evidence as can be seen" (Zaad Al-Ma'aad, Ibn ul-Qayyim, 91-92/5).
The opinion that we view to be strongest
I say: We are not able after all that has proceeded to outweigh as strongest the opinion that states that it is permitted for the Islamic State to convene the 'Aqd (contract) of Adh-Dhimmah with all of the disbelievers of every type, Deen and Aqeedah... (Note: This opinion of permitting the Jizyah for all disbelievers is also the opinion of Doctor Wahbah Az-Zuhailiy, 'Aathaar ul-Harb p701-702). Except that those who reside in the Jazeerat-ul-Arab (Arabian Peninsula), with the borders that the state adopts, are ordered to leave it and not reside in it unless it is for a temporary period or travelling through. It is permitted to convene the 'Aqd of Adh-Dhimmah with them on the basis of them being citizens of permanent residency outside of the specified borders. When factions of these are inside of the Arabian Peninsula and they used to leave to outside the Peninsula by displaying force then fighting them is legitimate until they enter into Islaam or leave from it.
In addition those whom it has been established that they were Muslims or entered into it (Islaam) and thereafter became apostates, then in this case fighting them is obligatory until they return to the folds of Islaam or they are finished with.
And with that, all of the texts found related to this Mas'alah have been put together.
Therefore it is permitted for the State in Islaam to contract the Dhimmah with all groups and types and even with those who have Arab origins but do not follow a Samaawiy religion (i.e. with a revealed book), like communists and atheists. The exception to this permission is with apostates due to what has already been presented.
As such the 'Aqd of Adh-Dhimmah and the giving of the Jizyah by the people of war (Ahl ul-Harb) is a general Sabab (cause/reason) from amongst the Asbaab (reasons/causes) for the cessation of Al-Qitaal in Islaam.
2. The conditions of the Jizyah
The discussion about the conditions of the obligation of the Jizyah, in its financial meaning, upon the individuals who have had the Dhimmah contracted to them, does not possess a strong link with the subject area that was intended in this section. This subject area is that the payment of the Jizyah and submission to the Ahkaam (rulings) of Islaam represent a cause (Sabab) from amongst the causes for stopping Al-Qitaal (fighting) in accordance to Islaam.
For this reason we will pass through this issue by quickly presenting these conditions as they have been found in some of the Fiqhiy sources (references) without delving into the evidences and going into further discussion, or examining the different opinions that exist in regards to this issue. This is to ensure that the aim of the paper (PHD) is complied with from one angle so as not to go outside of our subject in that which we do not see the necessity of going into detail in, from another angle.
The following was mentioned in 'Badaa'i As-Sanaa'i' in relation to the conditions of the Jizyah upon those whom the contract of the Dhimmah is placed: "As for the conditions of the obligation, then these include: Al-'Aql (sound mind)... Al-Buloogh (maturity/pubescent)...Adh-Dhukoorah (being male)...As-Sihhah (health) and so it is not obligatory upon the sick person if he has been sick for the entire year... and included in this is being free from chronic illness, blindness and old age... in addition to the Faqeer (impoverished) who does not work... And as for the monks (Ashaab As-Swaami') then the Jizyah is obliged upon them if they are capable of working because they are from the people of Al-Qitaal (fighting). This is because not working despite having the ability does not prevent the obligation... and from the conditions is Hurriyah (freedom) so it is not obligatory upon the 'Abd (slave) because the slave is not from the people who own property..." (Badaa'i As-Sanaa'i: 111/7. Refer to: Fath ul-Qadeer: 50/6 and what follows and this is in regards to the Hanafi Fiqh. Refer for the Maalikiy Fiqh to: 'Qawaaneen Al-Ahkaam Ash-Shar'iyah, 175, and 'Ash-Sharh Al-Kabeer' Ma'a Haashiyah', Ad-Dusooqiy 201/2, and 'Manh Al-Jaleel, 214/3. For the Shaafi'iy Fiqh: 'Al-Muhadh'dhab', Ash-Sheeraaziy, 252/2, 'Mughni Al-Muhtaaj: 245/4 and in the Hanbali Fiqh: Al-Mughni, Ibn Qudaamah 571/10 and what follows it, 'Ash-Sharh Al-Kabeer', Al-Maqdasiy, 595/10 and what follows it).
In regards to what we have been presented of these conditions there exists various points of view amongst the Fuqahaa of the Madhaahib requiring a revision of these Fiqhiy sources which we do not deem necessary to be presented here for the reasons that we have already indicated.
To be continued in Part 3...
The above is a draft translation from the book: 'Al-Jihad wa'l Qital fi as-Siyasa ash-Shar'iyya' by Sheikh Dr. Muhammad Khayr Haykal.

Wednesday, February 20, 2013

Islamic Social System Vs Secular Social System - Shaykh Abu Talha

Islamic Social System Vs Secular Social System - Shaykh Abu Talha in his unique style presents this informative lecture about the Islamic Social System. During the course of his discussion, he points out the common social behaviors in the current secular societies and demonstrates how closely they resemble the social behaviors and the social system of the Pre-Islamic jahiliyyah (ignorance) period of Arabia. He explains how the Islamic Social System is well balanced and prescribed as a way of life given to mankind by their Creator and how Islam can solve innumerable social problems afflicting the human race. He emphasized how the Islamic Social System when implemented along with its counterpart systems of Economics, Judiciary & Politics from Islam can bring about an atmosphere of balance and justice promoting real progress in both moral, spiritual and scientific aspects of human development as was practically demonstrated by 1300 years of the history of Islam where the Islamic System enabled them to lead the world in scientific as well as spiritual development the fruits of which still benefit mankind.

Video: Honor and Responsibilities of the Muslim Ummah - Shaykh Abu Salah

Abu Salah describes how Allah (SWT) has honored the Muslim Ummah in the Quran and made the Muslim Ummah responsible for the Islamic mission in this world. The Shaykh quotes extensively from the Quran and Ahadith to explain what responsibilities lie upon the shoulders of the Muslim Ummah and how we should be struggling to fulfill them as Muslims.

Call to action 'O Damascus, rule of the Caliphs!' by Abdul Azeez Al-Jumai'aan | English subtitles

Allahu Akbar! This is a Jihad poem in Arabic accounting the rulers of the Muslims and calling the Muslims to action and to assist Syria! MUST WATCH!

Sunday, February 17, 2013

Video: British state spies on Muslim

Egypt's President Morsi is the New American Stalwart in the Region

بسم الله الرحمن الرحيم

Egypt's President Morsi is the New American Stalwart in the Region

Ever since assuming the office of the Presidency, Morsi has worked resolutely to portray himself as a moderate Islamist working independent of American influence for the betterment of Egypt and the region. But beneath the veneer of Islamic rhetoric surrounding his domestic and foreign policy actions, Morsi is no better than his predecessor Mubarak- the former gatekeeper of American interests in the region.

On the domestic front, Morsi can claim that the opposition has not allowed his government enough time to push through reforms that will address the Egypt's battered economy, restore law and order, and improve the lives of the ordinary Egyptian people. This is despite the fact that such reforms are formulated under the auspices of IMF stipulations for Egypt's government to revise its economic agenda in order to qualify for the $4.8 billion loan. IMF spokesman Gerry Rice said, "We understand the Egyptian authorities have been working on revising their economic program. And once this step is completed, we will discuss the timing of a possible mission to Cairo to assess the revised program."  The delay has prompted America's rating agency Moody to downgrade Egypt's credit worthiness.  Thus America's economic enslavement of Egypt continues via the IMF and Moody regardless of the claims made by Morsi's government of following an independent economic policy.

On the foreign policy front Morsi cannot conceal his pro-American credentials behind the wall of protestors, which include people from all walks of life. Morsi's foreign policy is distinctively American and in many ways is more brutal than Mubarak's era. On February 13th 2013, Egypt without warning flooded Gaza tunnels that are a life blood to the Palestinians living in concentration camp-like conditions in Gaza, which for all intents and purposes is controlled by the cowardly Jewish state. The tunnels bring in everything from food and medicine to cement and iron, providing up to 75 percent of the goods to a population of 1.6 million people.

An Egyptian security official in the Sinai told Reuters the campaign started five days ago. He said, "We are using water to close the tunnels by raising water from one of the wells." Hamas has been reluctant to criticise Morsi in public, but Gazans are more outspoken about the Hamas's naivety and Morsi's brutality. "Egyptian measures against tunnels have worsened since the election of Morsi. Our Hamas brothers thought he would open up Gaza. I guess they were wrong," said a tunnel owner, who identified himself only as Ayed, fearing reprisal. "Perhaps 150 or 200 tunnels have been shut since the Sinai attack. This is the Morsi era," he added.

So Morsi's government has used the attacks on Egyptian forces in Sinai in August 2012 to spearhead a ruthless campaign to close as many tunnels as possible and bolster the security of the Jewish state ahead of the much anticipated resumption of the dormant peace process.  With Palestinian unity talks planned in the days ahead, Netanyahu weakened by the recent elections and Obama scheduled to visit the Jewish state in March 2013, Washington is keen to create the right atmosphere to give a vital push for peace between the Arabs and the Jewish state. Central to the commencement of peace talks is the security of the Jewish state, and Morsi like his predecessor is doing his utmost to meet American and Jewish expectations. Nonetheless, the timing of the recent operation is intended to mollify Jewish criticism of America's delivery of four F16 aircraft to the Egyptian air force.

Likewise, Morsi's close ties with Iran to find a political solution to the crisis in Syria that preserves remnants of Assad's regime bears the hallmark of America's intended solution. America has been working tirelessly with Iran, Turkey, Egypt, Gulf countries as well as with the EU and Russia to protect Assad's regime in some form through a variety of initiatives the latest being the Brahimi Plan This will ensure the continuation of its hegemony over the Levant. Within this context Morsi visited Tehran in September 2012 and spoke of Iran as a pivotal stakeholder in finding a solution to the Syrian crisis. He said, "[Iran] a main player in the region that could have an active and supportive role in solving the Syrian problem... I don't see the presence of Iran in this quartet (Turkey, Egypt, Iran and Saudi Arabia) as a problem, but is a part of solving the problem." This also explains why Morsi a few days ago warmly greeted Ahmadinejad the butcher of Syria. His treatment of the Iranian president attracted the ire of some of Morsi's close supporters such as Daawa Salafiyya which issued a statement: "Egypt is committed to the protection of all Sunni nations." Hence within a space of a few months Morsi has managed to surpass Mubarak and do what his predecessor failed to do i.e. forge a working relationship with Iran to safeguard America's interests in the Levant.

America is mightily pleased with the domestic and foreign policy actions undertaken by Morsi's government. On February 3rd 2013, U.S. Ambassador to Egypt Anne Patterson said, "We look to Egypt to continue to serve as a force for peace, security and leadership as the Middle East proceeds with its challenging yet essential journey towards democracy."

There are important lessons for Egyptians to learn from Morsi's rule. First, by simply calling for the ouster of a brutal dictator only to be replaced by someone who overtly expresses his faith in Islam is a folly of enormous proportions and will not change the plight of the people. Second, the real cause of misery for Egyptians is the current system through which America continues to colonise the country. Unless the system is eradicated from its roots people will continue to suffer under America's colonial policies implemented by its loyalists in the present regime-be they Islamists or liberals. Third, the only alternative to the present decadent system is the Islamic Shariah, and not Western liberal democracy as advocated by the short-sighted liberals. Western liberal democracy along with capitalism is dying and even people in the West are eagerly looking for an alternative system. But for Islamic Shariah to succeed, it has to be implemented holistically not in a piece meal fashion as championed by Muslim Brotherhood and its supporters. Fourthly, the only practical way to realise the implementation of the Shariah in domestic and foreign policy areas is through the re-establishment of the Caliphate. Only the Caliphate can guarantee an independent economic and foreign policy free from Western interference.

Abed Mostapha

06 Rabi' II 1434


Sunday, February 03, 2013

BOOK: "The Responsibility of the Ruler and the Ruled"

Download the book from here.
The women members' of Hizb ut Tahrir Wilayah Pakistan have written this book which seeks to clarify the relationship between the Ruler and Ruled and its importance in maintaining a strong Khilafah, which is to come soon inshaAllah. It covers the basic concept of what a Muslim is responsible for and then more specifically the Ruler's responsibility to his people and the people's responsibility to the Ruler. When the Khilafah returns, the Ummah must cling to this understanding with its teeth, to prevent a recurrence of all the suffering it faced due to the absence of Islam.
The book then elaborates on how the current rulers in the the Muslim nations, who demand the obedience of their people are not legitimate Rulers of the Ummah from Islam. They were not contracted legitimately by a Bayah through consent and choice, for the implementation of Islam. They have usurped the position of the legitimate Ruler of the Muslims. They are oppressors, who implement a non-Islamic system that is based on man-made law not Allah's (swt) law, and they allow the colonialist powers free hand to exploit and oppress the Muslim Ummah. They must be accounted and removed.
The women of Hizb ut Tahrir Wilayah Pakistan, invite all women of all races and schools of thought to join the work of their Muslim sisters around the world, from Morocco to Indonesia, who call for the return of Islam as a way of life. Hizb ut Tahrir operates strict separation between the work of the men and women, according to the guidelines for the Islamic society wherein the men and women are in separate rows.
14 Rabi' I 1434 H

PART 1: What is Jizyah?

The payment of the Jizyah and the acceptance of the non-Muslims from the people of war to submit to the rulings of Islaam
What concerns us in this section is whether the payment of the Jizyah from the people at war and their commitment to submitting to the rulings of Islaam, is considered a cause from amongst the causes for the cessation of fighting according to Islaam. As such the issues that are dealt with in this section are only studied from this angle i.e. the angle of the cessation of the Qitaal if the contract of Dhimmah with the people of war is completed, a matter that dictates their payment of the Jizyah and their submission to the rule of Islaam, meaning their entry into being Islamic subjects and henceforth carrying the citizenship of the Islamic State.
As such we will not delve into the issues that enter into the subject of the Jizyah as this would require an independent paper in itself and in addition it would distract us from the purpose for which this chapter was aimed at which is to examine a cause or reason from amongst the causes that lead to the stopping of Al-Qitaal according to Al-Islaam.
Indeed it has been necessary for us to present a number of issues that relate to the study of the Jizyah and these are those that are of importance in regards to clarifying this reason from amongst the reasons or causes for the cessation of Al-Qitaal in Al-Islaam. These issues include the like of: Who from amongst the Ahlu-l-Harb (people of war) is it permitted to cease the fighting with and who is it not permitted to do so if they pay the Jizyah and announce their acceptance of the contract of the Dhimmah? What are the conditions for the obligation of the Jizyah? What can take its place (i.e. substitute for it)?
So the issues that we will address in this section are the following:
PART 1: What is meant (or intended) by Al-Jizyah? What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war if they give the Jizyah and the contract of Dhimmah is completed by them?
PART 2: Who is the Jizyah accepted from, from amongst the people of war (Ahl-ul-Harb) as well as their entering into the Dhimmah of the Muslims?
PART 3: The Shuroot (conditions) of the obligation (Wujoob) of the Jizyah.
PART 4: The alternative to the Jizyah.
What is meant or intended by Al-Jizyah? What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war if they give the Jizyah and the contract of Dhimmah is completed upon them?
1. What is meant or intended by Al-Jizyah?
It was stated in 'Mukhtaar As-Sihhaah' (dictionary): (Al-Jizyah: What is taken from the Ahlu-dh-Dhimmah. The plural: Al-Jizaa like Lihyah and Lihaa (Beard/s)) (Mukhtaar As-Sihhaah p86).
It was stated in 'Al-Mughni': "It is the Wazheefah (amount presented to the authority in the form of an annual financial tax) taken from the disbeliever every year so that he can reside in the Daar (land)" (Al-Mughni, Ibn Qudaamah 567/10).
In addition, the word 'Al-Jizyah' has been used to mean the contract of the Dhimmah itself just as it has been applied with the meaning of the Dareebah (tax) (Imaam Ash-Shaafi'iy named the Jizyah as Dareebah, Al-Umm 200/4) or the money that the Ahlu-dh-Dhimmah have been made to commit to paying it to the Islamic State annually.
The following was stated in Al-Mughni Al-Muhtaaj in relation to the word 'Al-Jizyah': "And it has been applied to the 'Aqd' (contract) or the money that has been committed to be paid by it" (Mughni Al-Muhtaaj, Ash-Sherbeeni Al-Khateeb, 242/4). Also refer to 'Tuhfah At-Tullaab' of Ash-Sheikh Al-Islaam Zakariyah Al-Ansaari p278).
Just as An-Nawawi explained in 'Al-Minhaaj', how the Imaam of the Muslims or the one he has delegated, manages the contract of the contract of the Dhhimmah, or the 'Aqd of Al-Jizyah with the people of war. He states: "An example (blueprint) of the 'Aqd (contract): I grant you settlement in the land of Islaam or I permit you to reside in it on the basis that you pay the Jizyah and that you yield/submit to the rule of Islaam" (Al-Minhaaj, An-Nawawi quoted in Al-Mughni Al-Muhtaaj: 242/4).
So this in summary is what has been related in regards to the word 'Al-Jizyah' and this definition is sufficient for our requirements here and there is no need to delve any further into this matter in a manner greater than we have mentioned.
2. What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war, if they give the Jizyah and the contract of Dhimmah is completed upon them?
The origin in regards to the obligation of ceasing the fighting against the people of war upon their acceptance of the giving of the Jizyah and their acceptance of the rule of Islaam is the Qawl (statement) of Allah سبحانه وتعالى:
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ
"Fight against those who believe not in Allah, nor In the Last day, nor forbid that which has been forbidden by Allah and his Messenger and those who acknowledge not the Religion of Truth among the people of the Scripture (Jews and Christians), until they pay the Jizyah with willing submission, and feel themselves subdued."
(At-Taubah, 9:29)
This Aayah states that the goal that is necessary in respect to stopping the fight against the disbelievers is the giving of the Jizyah and to abide by the Saghaar i.e. submit to the ruling of Islaam in other than what has been left to them like the 'Ibaadaat, foods, drinks, clothing and matters related to marriage and the like.
In the Tafseer of Al-Qurtubiy he said: "And Al-Qitaal has been given an aim which is the giving of the Jizyah instead of fighting" (Al-Jaami' LiAhkaam Al-Qur'aan, Al-Qurtubiy 110/8).
Ibn Qudaamah stated: "The giving of the Jizyah has been made the aim (target) for fighting them so when they give it, it is not permissible to fight them" (Al-Mughni 577/10).
In addition from amongst the Shar'iyah evidences in relation to it, there is also that which came in the Saheeh of Al-Bukhaari that Al-Mugheerah Bin Shu'bah said the following to a worker of Kisraa (ruler of Persia) during the battle of Nahaawand (Refer to Fat'h-ul-Baari 264/6) in the land of the Persians: "Our Nabi, the Messenger of Allah صلى الله عليه وسلم has ordered us to fight you until you worship Allah alone or that you give the Jizyah. And our Nabi صلى الله عليه وسلم has informed us about the message of his Lord that whoever from amongst us is killed is in Al-Jannah in pleasurable comfort that none has ever seen the like of and that whoever is left alive from us will take possession of your necks (i.e. become master over you)." (Saheeh Al-Bukhaari 3159, Fat'h-ul-Baari 258/6).
So this Hadeeth is a text in regards to fighting the Kuffaar (disbelievers) until one of two matters comes to pass: Either they worship Allah alone i.e. entering into the folds of Islaam, or for the Jizyah to be given. The meaning of this is the obligation of refraining from Al-Qitaal (fighting) and ceasing the state of war with the disbelievers who have responded positively to the payment of the Jizyah in the case where they have abstained from entering into Al-Islaam. What is intended by the Jizyah here is the Jizyah that the Ahlu-dh-Dhimmah are bound by, those who have submitted to the authority of Islaam and have become Islamic subjects. It does not mean the Jizyah that the Ahl-ul-Harb (people of war) could pay built upon the contract of Muwaada'ah i.e. a foreign peace agreement with them dictating the cessation of fighting against them, whilst they remain independent in their lands without submitting to the authority of Islaam. This is like what Ibn Haja mentioned when he said: "That the Jizyah is with the Ahlu-dh-Dhimmah whilst the Muwaada'ah is with the Ahl-ul-Harb" (Fat'h-ul-Baari 259/6).
Also from amongst the evidences that indicate that the acceptance of the Ahl-ul-Harb to the payment of Jizyah is a reason/cause (Sabab) from amongst the reasons/causes (Asbaab) for refraining from Al-Qitaal against them in addition to ceasing the state of war with them is what came in the Hadeeth of Buraidah in Saheeh Muslim in relation to the advice given by the Nabi صلى الله عليه وسلم to the Ameer of the army or expedition who was heading out to fight the people of war in relation to the Islamic manners that are necessary to be observed when fighting and the demands that are presented before the commencement of war against them. In regards to what is obligatory in terms of refraining from fighting them if they respond to these demands.
The following came in the Hadeeth: "Then if they refuse (i.e. entering into Islaam) then ask them for the Jizyah. If they respond positively to you, then accept this from them and refrain from (fighting) them."(Saheeh Muslim 1731).
This Hadeeth is a text guiding to the obligation of refraining from Al-Qitaal with the people of war (Ahl-ul-Harb) if they respond positively to committing to the giving of the Jizyah which would mean them entering into the Dhimmah and their acceptance of the Islamic rule as was mentioned in respect of the Aayah of Al-Jizyah.
Based upon these evidences from the preceding Shar'iyah texts there followed the written texts of the Fuqahaa who affirmed the obligation (Wujoob) of ending the state of war with the disbelievers upon their acceptance of giving the Jizyah.
The author of 'Al-Muhadh'dhab' stated: "The contraction of the contract ('Aqd) of Adh-Dhimmah is not valid except from the Imaam or from the one who has been delegated by the Imaam because it falls under the greatest of the interests and as such belongs to the Imaam. And whoever requests the contraction of the Dhimmah and he is from amongst those whom it is permitted to be affirmed in his disbelief with the Jizyah, then it is obligatory to contract it with him" (Al-Muhadh'dhab, Ash-Shiraaziy 253/2).
Imaam An-Nawawi exempted from this obligation some situations in which harm befalling the Muslims is feared as a result of contracting the 'Aqd of the Jizyah or the Dhimmah and he stated: "Except for the spy who we fear" (Al-Mughni Al-Muhtaaj, Ash-Sherbeeni Al-Khateeb 244/4 and he stated in his explanation: "Except for when the plotting/scheming of the person requesting the contract is feared like if he was a spy who we feared and hence rejected due to the damage that we feared might result").
Ibn Qudaamah stated: "If they give the Jizyah then it is binding to accept it and it is Haraam to fight them" (Al-Mughni, Ibn Qudaamah 577/10).
It is worth noting here that the acceptance of the people of war to choose the Jizyah or convene the contract of the Dhimmah could occur before the forces of the Islamic State arrive at their doorstep where this acceptance could occur as the result of merely being presented with these three choices or options and with their acceptance from the beginning of the option of paying the Jizyah. Similarly it is possible that they respond positively to giving the Jizyah after war has been initiated with them and then before their defeat is completed and the victory for the Muslims has been secured they come forward to announce that they will accept the Jizyah and convene the contract of the Dhimmah. It is also permitted for them to accept the Jizyah after a long or short period of siege and they see in these circumstances that it is wise to accept the judgement of the Jizyah and to enter into the Dhimmah in order to break the siege encompassing them and their land.
I say: In all of these cases the declaration of the people of war of their acceptance to enter into the Dhimmah of the Muslims is considered to be a Sabab (cause/reason) from amongst the reasons (Asbaab) for the cessation of Al-Qitaal in accordance with Islaam.
With that we end the discussion of this Mas'alah (issue) and move on to the following Mas'alah.
To be continued in Part 2...
The above is a draft translation from the book: 'Al-Jihad wa'l Qital fi as-Siyasa ash-Shar'iyya' by Sheikh Dr. Muhammad Khayr Haykal.