The following is from the draft english translation of the Arabic book مقدمة الدستورأو 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
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Article 28
No one can be Khalifa
unless the Muslims appoint him, and no one possesses the mandatory powers of
the leadership of the State unless the contract with him has been concluded according tothe Shari’ah, like any contract in Islam.
The evidence is that
the Khilafah is a contract upon satisfaction and consent, since its
reality as a contract means it is not contracted except through two contracting
parties, and therefore no one is the Khalifah unless he was appointed to
it by those whose agreement completes the conclusion of the contract
according to the Shari’ah. So if someone appoints himself Khalifah
without the pledge from those whom the Khilafah is contracted through,
then he would not be a Khalifah until his pledge occurs with choice and
consent from those whom the conclusion of the contract takes place. So the fact
that the Khilafah is a contract necessitates the presence of two
contracting parties, with each of them having the necessary Shari’ah
qualifications to be entrusted with the contract and conclude it.
If a conqueror came
about and took the ruling by force he does not become a Khalifah by
that, even if he announces himself as Khalifah of the Muslims, since the
Khilafah was not contracted to him by the Muslims. If he took the pledge
of allegiance from the people by force and compulsion, he does not become the Khalifah
even if he was given the pledge, since the pledge given through compulsion
and force is not considered and so the Khilafah cannot be contracted by
it. This is because a contract of choice and consent cannot be completed
through compulsion and force, and so it is not contracted except through a
pledge given with satisfaction and consent. However, if this conqueror managed
to convince the people that it was in the benefit of the Muslims to give him
the pledge, and that the implementation of the Shari’ah would be
complete through giving the pledge to him – and so the people became convinced
and satisfied with that and gave him the pledge of allegiance on that basis
with their own choice, then he would become the Khalifah from the moment
that he was given that pledge by the people freely even though he took the
authority through force and power. Therefore, the condition is the contracting
of the pledge, and this is only reached through consent and choice,
irrespective of whether the one who reached it was the ruler and leader, or
wasn’t.
Article 29
It is stipulated that
the authority of the region or the country that gives the Khalifah a
contracting pledge is autonomous dependent upon the Muslims alone, and not upon
any disbelieving state; besides the security of the Muslims in that country,
both internally and externally, is by the security of Islam not the security of
the disbelief. With respect to the pledge of obedience taken from other
countries, there are not such conditions.
The evidence is the
forbiddance of the disbelievers having authority over the Muslims, in
accordance with the His (swt) words “Allah
will never grant to the disbelievers a way over the believers” (TMQ 4:141), so if the authority of the disbelievers over the Muslims is present in
any part of the Islamic lands, then that land would not be suitable to
establish the Khalifah, since the establishment of a Khalifah is
simply the establishment of an authority. Since that land does not possess the
authority it therefore cannot give it. Also its authority is an authority of
disbelief, and the Khalifah is not established with the authority of
disbelief.
This is from the angle of the authority; as for the issue of security,
its evidence is the evidence for Dar Al-Islam and Dar Al-Kufr,
since the establishment of the Khalifah would make the abode into an
abode of Islam, and it is not possible for an abode to be an abode of Islam
simply by establishing the rule of Islam but rather it is imperative that its
security is by the security of Islam and not that of disbelief, since the
conditions for the abode to be considered an abode of Islam are: firstly, to be
ruled by Islam and secondly, for its security to be the security of Islam and
not the security of disbelief.
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