The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963. Numerous brigades in Syria have agreed to the implementation of this constitution after the removal of the corrupt system that has brutally suppressed the people for decades.
Article 3
The Khalifah
adopts specific Shari’ah rules which he will enact as a constitution and
laws. If he adopts a Shari’ah rule, this rule alone becomes the Shari’ah
rule that must be acted upon and it becomes a binding law that every citizen
must obey openly and privately.
The evidence of this article is derived from the Ijma’
(General Consensus) of the Companions that the Khalifah reserves the
right to adopt specific Shari’ah rules. It has also been established in
the same manner that it is obligatory to act upon the rules adopted by the Khalifah.
The Muslim is not permitted to act upon any rule other than what the Khalifah
has adopted in terms of rules even if these rules were Shari’ah rules
adopted by one of the Mujtahideen (scholars of Islam). This is so
because the rule of Allah that becomes duly binding upon all the Muslims is
what the Khalifah adopts. The rightly guided Khulafaa’ proceeded
in this manner; they adopted a host of specific rules and ordered their
implementation. Thus the Muslims, with all of the Companions amongst them, used
to act upon these rules and to abandon their own Ijtihad (Islamic
opinion derived from the Islamic evidences). For instance, Abu Bakr (ra)
adopted in the matter of divorce a rule stipulating that the triple divorce
would be considered as one divorce if it were pronounced in one sitting. He
also adopted in the matter of distributing the wealth upon the Muslims a rule
stipulating that wealth should be distributed equally amongst the Muslims,
regardless of seniority in Islam or anything else. The Muslims followed him in
this as well as the judges and the Walis (governors) implemented the rules
that he had adopted. When Umar (ra) took office, he adopted other opinions
different to those of Abu Bakr (ra) in the same two matters; he imposed the
rule stipulating that the triple divorce is considered as three and he also
distributed the wealth among the Muslims according to their seniority in Islam
and according to their needs rather than distributing equally. The Muslims duly
followed him in this and the judges and the governors implemented the rules he
had adopted. Then, Umar (ra) adopted a rule stipulating that the land conquered
in war is a spoil for Bayt al-Mal (the State’s treasury), not for the
fighters, and that the land should remain with its owners and should not be
divided among the fighters or among the Muslims. The governors and the judges
duly complied and implemented the rule that he had adopted.
It was in this manner that all of the rightly guided Khulafaa’
proceeded with respect to adoption of opinions, ordering people to abandon
their Ijtihad and the rules which they had acted upon, and instead
adhere to that which the Khalifah had adopted. So the Ijma’ of
the Companions was established on two matters; the first is the right of
adoption and the second is the obligation of acting upon what the Khalifah
adopts. Famous Shari’ah principles were derived based on this Ijmaa’
of the Companions. These are: “The Sultan reserves the right to effect as
many judgements as the problems which arise”, “The order of the Imam resolves the
disagreement” and “The order of the Imam
is binding”.
The evidence for adopting one
Islamic opinion is the fact that there are different Islamic opinions regarding
one single matter; hence, in order to act upon the Shari’ah rule in any
matter it is imperative to adopt a specific Islamic opinion for it. This is so
because the Shari’ah rules, which represent the address of the
Legislator related to the actions of the worshippers, have come in the Quran
and in the narrations, and many of these can have a number of possible meanings
according to the Arabic language and according to Shari’ah. For that
reason, it is natural and inevitable that people differ in their understanding
of the address of the Legislator and that this difference in understanding
reaches the level of disparity and contradiction in the intended meaning. Thus,
it is inevitable to have different and contradictory understandings of the same
matter. Because of this, there could be a host of different and contradictory
opinions in a single matter. So when the Messenger of Allah
said at the battle of
Ahzab: “None of you should pray ‘Asr except in Bani Quraythah”
(recorded by Al-Bukhari through Ibn Umar), some understood that he was urging
haste and so they prayed on their way to Bani Quraythah, while others
understood that he
had literally ordered them
to pray ‘Asr in Bani Quraythah; therefore, they delayed praying ‘Asr
until they reached their destination. When the Messenger of Allah
heard of this, he
approved both understandings, and there are many verses and narrations similar
to this.
The difference of opinion in
single matters makes it incumbent upon the Muslims to adopt one opinion from
these various opinions since all of them are Shari’ah rules and the rule
of Allah (swt) in one single matter regarding one person is not multiple. Therefore,
it is imperative to choose one single rule from the Shari’ah in order to
act upon. Hence, the Muslim’s adoption of a specific Shari’ah rule is
necessary and inevitable when he or she undertakes the action since
undertaking the action obliges the Muslim
to accomplish it according to the Shari’ah rule. The obligation of
acting according to the Shari’ah rule, whether this was a Fard
(obligatory), Mandub (recommended), Haram (forbidden), Makruh (despised) or
Mubah
(permitted) makes it incumbent upon the Muslim to adopt a specific Shari’ah
rule. Therefore, it is obligatory upon every Muslim to adopt a specific Shari’ah
rule when taking rules for actions, irrespective of whether he or she was a Mujtahid
or a Muqallid (someone who follows the opinion of a scholar in an issue
rather than deriving it themselves) or whether they were the Khalifah or
other than the Khalifah.
With respect to the Khalifah, it is imperative
for him to adopt a host of specific rules according to which he assumes the
management of peoples’ affairs. Hence, it is necessary for him to adopt certain
rules pertaining to what is of a general nature to all the Muslims in terms of
matters of government and authority such as Zakat, levies, Kharaj
(land tax), foreign relations and everything that is related to the unity of
the State and ruling.
However, his adoption of the rules is subject to
scrutiny. If the Khalifah’s managing of the people’s affairs were
subject to adopting specific Islamic rules, then in this case the adoption
would be obligatory upon the Khalifah. This would be in concordance with
the Shari’ah principle stipulating that: “Whatever is necessary to
accomplish a duty is in itself a duty”, such as the signing of treaties. However, if the Khalifah
could manage peoples’ affairs in a specific matter according to the Islamic Shari’ah
rules without having to resort to the adoption of a specific rule in this
matter, then in this case the adoption would be permitted for him rather than
an obligation, such as Nisab Al-Shahadah (the minimum
number of witnesses in a testimony). In this case, it is permitted for him to
adopt or not to adopt, for in essence the adoption is permitted and not
obligatory; this is so because the Ijma’ of the Companions is that the Imam can adopt and there is no Ijma’
that the Imam must adopt. Therefore,
the adoption itself is permissible and it does not become obligatory unless the
obligatory management of peoples’ affairs cannot be accomplished except through
adoption. In such a case it then becomes obligatory so that the duty could be
accomplished.
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