This is an extract from the book Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya by Sheikh Muhammad Khayr Haykal, chapter ‘The Sixth Study: Al‐Qitaal against the deviation of the ruler.’
Firstly: The deviation of the Haakim (ruler), how does it occur?
The deviation of the ruler occurs as a result of abandoning the commitment to Islaam, whether this is in his personal behaviour or relates to the internal and external politics or policies upon the basis of which the affairs of the Ummah are taken care of.
A number of Shar’iyah texts have come mentioning some of these deviations which could emanate from the ruler and we will now mention those deviations which the texts have guided to.
These deviations include:
- The committing of sinful acts (Ma’aasiy).
The ruler is meant to be an example in abiding by the Shar’a and its implementation… This leads the Ummah to dislike the ruler as a result of these violations and the Ummah’s dislike of the ruler causes a wave of anger and denouncement which are directed towards him. In this way the atmosphere of estrangement begins to dominate between them which leads to exchanges of curses and mutual hatred.
The Messenger ﷺ said:
خِيَارُ أَئِمَّتِكُمُ الَّذِينَ تُحِبُّونَهُمْ وَيُحِبُّونَكُمْ وَيُصَلُّونَ عَلَيْكُمْ وَتُصَلُّونَ عَلَيْهِمْ وَشِرَارُ أَئِمَّتِكُمُ الَّذِينَ تُبْغِضُونَهُمْ وَيُبْغِضُونَكُمْ وَتَلْعَنُونَهُمْ وَيَلْعَنُونَكُمْ . قِيلَ يَا رَسُولَ اللَّهِ أَفَلاَ نُنَابِذُهُمْ بِالسَّيْفِ فَقَالَ لاَ مَا أَقَامُوا فِيكُمُ الصَّلاَةَ وَإِذَا رَأَيْتُمْ مِنْ وُلاَتِكُمْ شَيْئًا تَكْرَهُونَهُ فَاكْرَهُوا عَمَلَهُ وَلاَ تَنْزِعُوا يَدًا مِنْ طَاعَةٍ
“The best of your Imaams (leaders) are those whom you love and they love you, you make Du’aa for them and they make Du’aa for you. And the worst of yours Imaams are those whom you hate and they hate you, you curse them and they curse you.” He (the narrator) said: We asked: “O Messenger of Allah! Should we not oppose them at that time?” He ﷺ said: “No, as long as they implement the Salaah upon you, except for the one who appoints a ruler and then he sees him (the ruler) coming with a matter that is disobedient to Allah, then he has to hate that which is a disobedience to Allah and to not take his hand away from obedience.” (Saheeh Muslim 1855)
- Ordering the subjects to perform sinful acts.
The Messenger of Allah ﷺ said:
عَلَى الْمَرْءِ الْمُسْلِمِ السَّمْعُ وَالطَّاعَةُ فِيمَا أَحَبَّ وَكَرِهَ إِلاَّ أَنْ يُؤْمَرَ بِمَعْصِيَةٍ فَإِنْ أُمِرَ بِمَعْصِيَةٍ فَلاَ سَمْعَ وَلاَ طَاعَةَ
“Hearing and obeying is a duty upon the individual Muslim in what he likes and hates as long as he is not ordered with a sinful act. Then if he is ordered with a sinful act then there is no hearing and no obeying.” (Al-Bukhaari 6725, Fat’h ul-Baari 121/13 and Muslim 1839)
- That he commits Munkaraat (Clear Haraam acts)
This includes monopolizing life lines such as the monopolization of wealth, properties, posts, positions in addition to special privileges that are for him alone, his relatives or followers to the exclusion of the rest of the Ummah.
The Messenger of Allah ﷺ said:
إِنَّهَا سَتَكُونُ بَعْدِي أَثَرَةٌ وَأُمُورٌ تُنْكِرُونَهَا . قَالُوا يَا رَسُولَ اللَّهِ كَيْفَ تَأْمُرُ مَنْ أَدْرَكَ مِنَّا ذَلِكَ قَالَ تُؤَدُّونَ الْحَقَّ الَّذِي عَلَيْكُمْ وَتَسْأَلُونَ اللَّهَ الَّذِي لَكُمْ
“There will be selfishness (or egoism) and matters that you will reject.” They asked: “So what should somebody who witnesses that time do O Messenger of Allah?” He replied: “Give the due right to the one who is over you and make Du’aa to Allah for that which is for you.” (Al-Bukhaari 7052, Fath ul-Baari 5/13, Muslim 1843)
- That he attacks the individuals of the Ummah
He afflicts harms in terms of beatings and punishment (torture) or the seizing and confiscation of wealth and properties whilst announcing by that his aversion to ruling by the guidance and Sunnah of the Nabi ﷺ.
Hudhaifah Bin Al-Yamaan related:
يَا رَسُولَ اللَّهِ إِنَّا كُنَّا بِشَرٍّ فَجَاءَ اللَّهُ بِخَيْرٍ فَنَحْنُ فِيهِ فَهَلْ مِنْ وَرَاءِ هَذَا الْخَيْرِ شَرٌّ قَالَ نَعَمْ . قُلْتُ هَلْ وَرَاءَ ذَلِكَ الشَّرِّ خَيْرٌ قَالَ ” نَعَمْ ” . قُلْتُ فَهَلْ وَرَاءَ ذَلِكَ الْخَيْرِ شَرٌّ قَالَ ” نَعَمْ ” . قُلْتُ كَيْفَ قَالَ ” يَكُونُ بَعْدِي أَئِمَّةٌ لاَ يَهْتَدُونَ بِهُدَاىَ وَلاَ يَسْتَنُّونَ بِسُنَّتِي وَسَيَقُومُ فِيهِمْ رِجَالٌ قُلُوبُهُمْ قُلُوبُ الشَّيَاطِينِ فِي جُثْمَانِ إِنْسٍ ” . قَالَ قُلْتُ كَيْفَ أَصْنَعُ يَا رَسُولَ اللَّهِ إِنْ أَدْرَكْتُ ذَلِكَ قَالَ ” تَسْمَعُ وَتُطِيعُ لِلأَمِيرِ وَإِنْ ضُرِبَ ظَهْرُكَ وَأُخِذَ مَالُكَ فَاسْمَعْ وَأَطِعْ
“I asked: ‘O Messenger of Allah, we used to be in evil then Allah came to us with goodness and this is what we have now. So will there be evil again after this goodness?’ He replied: ‘Yes.’ I asked: ‘How will that happen?’ He ﷺ answered: ‘There will be leaders who are not guided by my guidance nor will they follow my Sunnah. There will be amongst them men whose hearts are like the hearts of Shayaateen (devils) within the form of a human body.’ I asked: ‘What should I do if I was to witness that time O Messenger of Allah?’ He replied: ‘Hear and obey the Ameer (leader) and (even) if he strikes your back and takes your money, hear and obey.’” (Saheeh Muslim 1847)
And Hudhaifah Bin Al-Yamaan (ra) who used to ask the Messenger of Allah ﷺ frequently about how matters will be (in the future) in regards to the Ummah’s affairs said: “There will be leaders who will punish you and Allah will punish them.” (Al-Mustadrak of Al-Haakim 435/4 and Adh-Dhahabi classified it upon the conditions of Al-Bukhaari and Muslim).
These are examples of the types of deviations that could arise from the Muslim ruler whilst he is ruling the Islamic Ummah within an Islamic society.
Some of the Prophetic Ahaadeeth have indicated that the original position in relation to the Muslim ruler is that he leads the Ummah upon the basis of the book of Allah ‘Azza Wa Jalla and establishes its rulings upon them. Just as the original position is that he safeguards the Salaah, the Sawm (fasting) and the main features of Islaam in addition to calling the people to establish these main features.
The original position also is that he does not permit the acts of disobedience or disbelief to be manifested openly and clearly without being denounced.
And the following are the Ahaadeeth that indicate these matters:
The Messenger of Allah ﷺ said:
وَلَوِ اسْتُعْمِلَ عَلَيْكُمْ عَبْدٌ يَقُودُكُمْ بِكِتَابِ اللَّهِ فَاسْمَعُوا لَهُ وَأَطِيعُوا
“And if a slave (’Abd) is put in charge of you and leads you by the book of Allah, then hear him and obey.” (Saheeh Muslim 1838)
And in another similar report he ﷺ said:
إِنْ أُمِّرَ عَلَيْكُمْ عَبْدٌ مُجَدَّعٌ – حَسِبْتُهَا قَالَتْ – أَسْوَدُ يَقُودُكُمْ بِكِتَابِ اللَّهِ فَاسْمَعُوا لَهُ وَأَطِيعُوا
“O people! If a deformed Ethiopian slave is appointed as an Ameer over you, then listen and obey as long as he implements the Kitaab (book) of Allah upon you.” (Saheeh Muslim 1838)
And he ﷺ said: “Should I not inform you about the best of your governors and the worst of them?” They said: “Indeed yes! O Messenger of Allah.” He ﷺ said: “The best of them to you is the one whom you love and he loves you and you make Du’aa to Allah for him and he makes Du’aa to Allah for you. And the worst of them to you are those whom you hate and they hate you and you make Du’aa to Allah against them and they make Du’aa to Allah against you.” They asked: “Should we not fight them O Messenger of Allah?” He ﷺ replied: “No, leave them as long as they fast and pray.” (At-Tabaraani in ‘Al-Kabeer’ and ‘Al-Awsat’ (Mujamma’ Az-Zawaa’id 224/5) Al-Haithami said: The report includes Bakr Bin Younus and Ahmad Al-‘Ajaliy viewed him as trustworthy and the remaining transmitters are from those who are affirmed as Saheeh).
And ‘Ubaadah Bin Saamit (ra) said:
قَالَ دَعَانَا النَّبِيُّ صلى الله عليه وسلم فَبَايَعْنَاهُ فَقَالَ فِيمَا أَخَذَ عَلَيْنَا أَنْ بَايَعَنَا عَلَى السَّمْعِ وَالطَّاعَةِ، فِي مَنْشَطِنَا وَمَكْرَهِنَا، وَعُسْرِنَا، وَيُسْرِنَا، وَأَثَرَةٍ عَلَيْنَا، وَأَنْ لاَ نُنَازِعَ الأَمْرَ أَهْلَهُ، إِلاَّ أَنْ تَرَوْا كُفْرًا بَوَاحًا، عِنْدَكُمْ مِنَ اللَّهِ فِيهِ بُرْهَانٌ
“We pledged allegiance to the Messenger of Allah upon hearing and obeying in hardship and ease, in pleasure and displeasure and when someone is given preference over us. And that we would not dispute the matter of its people (i.e. the ruling), that we would say the Haqq (truth) wherever we are and we will not fear for the sake of Allah the blame of the blamer in doing that – And in one version: And that we will not dispute the authority of its people unless we see Kufran Bawaahan (Clear and blatant disbelief) in which there exists a clear proof for it from Allah.” (Al-Bukhaari 7055, Muslim 1709)
So what is the position of the Ummah in respect to the Ruler who falls into the acts of deviation that have been mentioned in the previous Ahaadeeth or if he violates the basis of what a Muslim Ruler should do in terms of establishing his rule upon the foundation of the Book of Allah, his commitment to the main features of Islaam and the calling towards them or if he permits the sinful acts of disobedience to be displayed openly and for Kufr Bawaah (Clear acts not from Islaam) to appear without denunciation? Is it permitted to take up arms (i.e. use force) in opposition to the deviating Ruler to cause his downfall or is this not permitted or is their detail attached to this subject?
This is what we will be discussing in the following point:
Secondly: The opinions of the Fuqahaa and Islamic thinkers in regards to the use of force (raising arms) to topple the deviating Ruler and our opinion on this matter.
To deal with this point we will mention the opinions of the classical ‘Ulamaa (Scholars), we will then mention the opinions of the modern Islamic thinkers before presenting the opinion that we view to be correct in regards to this subject.
The opinions of the classical scholars:
It was mentioned in the book: ‘Maqaalaat Al-Islaamiyeen’ by Abu-l-Hasan Al-Ash’ariy:
‘The people (i.e. scholars) differed in regards to the ‘Saif’ (Sword i.e. opposing the ruler by force) into four opinions:
The Mu’tazilah, Az-Zaidiyah, Al-Khawaarij and many of the Murji’ah said: It is Waajib if we are able to remove the people of Baghi and establish the truth and they reasoned with the speech of Allah (swt):
وَتَعاوَنوا عَلَى البِرِّ وَالتَّقوىٰ ۖ وَلا تَعاوَنوا عَلَى الإِثمِ وَالعُدوانِ
Cooperate with one another in Al-Birr (righteousness) and At-Taqwa (piety), but do not help one another in sin and transgression
(Al-Maa’idah 2)
And His (swt) speech:
فَقاتِلُوا الَّتي تَبغي حَتّىٰ تَفيءَ إِلىٰ أَمرِ اللَّهِ
Then fight you (all) against the one that rebels till it complies with the command of Allah
(Al-Hujuraat 9)
And the speech of Allah ‘Azza Wa Jalla:
قالَ لا يَنالُ عَهدِي الظّالِمينَ
My Covenant does not include the Zhaalimoon (oppressors)
(Al-Baqarah 124)
And the Rawaafid said: As-Saif is Baatil (invalid) and even if you were killed until the Imaam appears and then orders that.
And Abu Bakr Al-Asamm and those who agreed with him: If As-Saif, if they have gathered against a just ruler, they go out with him and remove the people of Baghi.
And some say: ‘As-Saif’ (rebelling) is Baatil (invalid) and even if offspring were killed. And that the Imaam could be just as he could be unjust and it would not be for us to remove him even if he was a Faasiq (disobedient to Allah). And they denounced the Khurooj (rebellion) against the Imaam…’ (Maqaalaat Al-Islaamiyeen, Al-Ash’ari 451).
Ibn Hazm mentioned in his ‘Al-Muhallaa’: ‘That the downfall of the deviating (Munharif) Ruler is Waajib if those revolting against him possess the capability of achieving that. And that this falls under the category of ordering the Ma’roof (right) and forbidding the Munkar (wrong) which is an obligation and was not abrogated or cancelled out. And that all the Ahaadeeth that indicate that the Faasiq and Munharif Ruler is listened to and obeyed are abrogated.
His Hujjah (proof/evidence/argument) for the Hukm (ruling) be abrogated is that: Not engaging in Al-Qitaal (fighting) which the Ahaadeeth ordering patience in the face of the Faasiq Munharif Ruler indicate only agrees with the situation of the Deen before the time of the command of Al-Qitaal and with the command of Al-Qitaal (fighting) these were abrogated whilst the denial of the Munkar remains and has not been abrogated. (The denial of the Munkar is abrogated in the eyes of those who oppose his view). He then mentions that this opinion is the opinion of ‘Ali Ibn Abi Taalib Karramallahu Wajhahu and who accompanied him of the Sahaabah.
And it was the opinion of ‘Aa’ishah (ra) the Mother of Believers, Talhah, Zubair and all who accompanied them from the Sahaabah (rah).
And it was the opinion of Mu’aawiyah and all who accompanied him from amongst the Sahaabah (rah).
In addition to it being the opinion of Al-Hussein Bin ‘Ali (ra) and ‘Abdullah Ibn Zubair (ra) and all who stood in Al-Harrah from amongst the Sahaabah and the Taabi’een’ (Al-Muhallaa, Ibn Hazm, 362/9)
It is apparent that these various differing positions in respect to the issue of the deviating Ruler are only restricted to the one whose deviation has not reached to the level of Kufr Bawaah. And we will now examine the opinions of the classical ‘Ulamaa around this issue:
In the Sharh of An-Nawawi of Saheeh Muslim he stated:
‘And as for the Khurooj (rebelling) against them i.e. the Hukkaam (rulers) then it is Haraam by the Ijmaa’ (consensus) of the Muslims and even if they were rebellious (Faasiq) or Zhaalimeen (oppressors). This is apparent in the Ahaadeeth with the meaning that I have mentioned’ (Sharh An-Nawawi ‘Alaa Saheeh Muslim 35/8).
Then An-Nawawi relates what Al-Qaadi ‘Iyaad mentioned in respect to contracting the Imaamah (leadership) to the Faasiq:
‘He said (Al-Qaadi ‘Iyaad): And the contract is not convened to the Faasiq in the first place, then if (later) the Khaleefah becomes a Faasiq then some of them say: It is obligatory to remove him unless the result of that is Al-Fitnah or war.
And the majority of the Ahlu-s-Sunnah have said: From amongst the Fuqahaa, Muhadditheen and Al-Mutakallimeen, that he (the ruler) is not removed due to Fisq, Zhulm (oppression) or the suspension of rights. That he is not removed and the Khurooj against him is not permitted due to these reasons but rather it is obligatory to exhort him and to incite fear in him due to the Ahaadeeth that have addressed this. Al-Qaadi said: And Abu Bakr Bin Mujaahid has claimed that this is an Ijmaa’ (consensus), whilst others have rebutted this due to what Al-Hussein, Ibn Az-Zubair and the people of Al-Madeenah did against Bani Umayyah and due to what a great number from amongst the Taabi’een and the first generation did in respect to Al-Hajjaaj with Ibn Al-Ash’ath… He then went on to say: And the Hujjah (proof/argument) of the Jumhoor (majority) is: That there standing up against Al-Hajjaaj was not due merely to the reason of Fisq alone but due to what he changed in respect to the Shar’a (Islamic legislation…’ (Sharh An-Nawawi ‘Alaa Saheeh Muslim 36-37/8).
As for what is related to Kufr Bawaah and what is upon it, then the following was mentioned in the Sharh of An-Nawawi of Saheeh Muslim: ‘Al-Qaadi ‘Iyaad said: The ‘Ulamaa have agreed (Ijmaa’) that the Imaamah (leadership) is not contracted to a disbeliever and that if Kufr overtakes him then he removed. He said: Similarly this applies if he abandons the establishment of the Salaah and the invitation to it… He then said: The Qaadi said: So if he is overcome by Kufr (disbelief) or the changing of the Shar’a occurs from him, or a Bid’ah (innovation) that is outside of the ruling of guardianship, then the obedience to him falls away and it is obligatory upon the Muslims to stand in opposition to him, remove him and appoint a just Imaam, if they are capable of doing that’ (Sharh An-Nawawi ‘Alaa Saheeh Muslim 35-36/8).
And the following was mentioned in the book: ‘Daleel Al-Faaliheen Sahrh Riyaad As-Saaliheen’ when explaining the Hadeeth: “…And not to dispute the people of authority unless you see Kufran Bawaahan of which you have a clear proof (burhaan) from Allah”. He said: The author (i.e. An-Nawawi) said: What is meant by Kufr (disbelief) here is: Al-Ma’aasiy (acts of disobedience)… Al-Qurtabi carried Kufr with its apparent meaning and said: The meaning of ‘unless you see Kufr with a clear proof from Allah’ is: Hujjah and Bayyinah (Proof and evidence), and a matter in which there is no doubt in regards to it. It is certain that it is Kufr (disbelief) and in that case (after ascertaining the Kufr) then it is obligatory to remove the one to whom the Bai’ah (pledge of allegiance) has been contracted’ (Daleel Al-Faaliheen 456-457/1).
And the following was also mentioned in this book in respect to the Hadeeth: “…They asked: O Messenger of Allah! Should we fight them? He ﷺ responded: No as long as they establish the Salaah amongst you.” He said: ‘The forbiddance of fighting them whilst they are establish the Salaah which is a title of Al-Islaam and the divider between Kufr and Islaam, has only come as a warning against the incitement of Fitan (plural of Fitnah), and the splitting of opinions amongst other results that are even more severe in terms of repudiation than the potential resulting from repudiating them (the rulers), and more harmful over what is being repudiated from them’ (Daleel Al-Faaliheen, 460/1).
And the Haafzih Ibn Hajar in Fath ul-Baari mentioned various versions of the Hadeeth: “Unless you see Kufran Bawaahan of which you have a clear proof from Allah” including the versions that state: “Kufran Baraahan” and “Kufran Suraahan”, another that states “Unless you see a Ma’siyah (disobedience) to Allah that is Bawaah” and “As long as he has not ordered you with a Ithm (sin) Bawaah” (Fath ul-Baari, Ibn Hajar, 8/13). And all of these different reports containing ‘Bawaahan’, Baraahan’ and ‘Suraahan’ all hold the same or similar meaning, which is manifestation, clear and declaring. And Ibn Hajar explained the word ‘Burhaan’ saying: It means: The text of an Aayah or sound report (khabar) that is not open to interpretation. (Fath ul-Baari, Ibn Hajar, 8/13).
He then goes on to say: ‘And that which appears to me is to understand the report of ‘Kufr’ upon the reality of their being a dispute in relation to the authority, and therefore there is no disputing with him in that which is a violation in the Wilaayah (authority) unless Kufr is committed. And the report about the ‘Ma’siyah’ (disobedience) is understood in relation to the disputing other than the dispute over authority. So if he does not violate in terms of the Wilaayah (authority) he is disputed with in regards to the Ma’siyah (disobedience) by being rebuked in a kind manner with the aim of establishing the Haqq (what is right/correct) without resorting to force. And this depends on capability to do that and Allah knows best. Ibn ut-Teen related from Ad-Daawadiy who said: That which the ‘Ulamaa are upon in respect to the oppressive rulers (Umaraa Al-Jawr) is that if it is possible to remove them from their position without causing Fitnah or oppression (Zhulm) then it is obligatory to do so! And if not capable it is obligatory to be patient.
And some said: It is not permitted to contract the Wilaayah (ruling) to a Faasiq in origin and so if oppression (tyranny) happens after having been just to begin with, then they have differed in regards to the Khurooj (rebelling) against him. And the Saheeh (correct view) is that this is prevented unless he disbelieves in which case the Khurooj is Waajib (obligatory) upon him’ (Fath Ul-Baari, Ibn Hajar, 8/13).
This is a summary of the opinions of the classical Fuqahaa in relation to the issue of rebelling against the Haakim Munharif (Ruler who has deviated) whether this deviation is less than the Kufr Bawaah or it has reached the level of Kufr Bawaah. The opinions of the Fuqahaa are concentrated into three views:
1) The opinion that the armed revolt is obligatory for every deviation from the Ruler whether this was Kufr or less than Kufr.
2) The opinion of restricting the obligation of armed revolt to when Kufr Bawaah is manifested and the obligation of hearing and obeying in regards to what is less than that in terms of deviation and the prohibition of revolting against the ruler for that reason.
3) The opinion that it is Mubaah (permissible) to revolt against the ruler in regards to the deviation which is less than Kufr Bawaah using as evidence the fact that some of the Sahaabah (rah) did not take part in rebelling against the oppressive rulers whilst not denouncing those who did at the same time (Ad-Difaa’ Ash-Shar’i Fee Fiqh Al-Islaamiy, Muhammad Sayyid ‘Abdut Tawaab 476).
These are the opinions of the classical scholars so what are the opinions of the modern Islamic thinkers in respect to this Mas’alah?
The author of the book: ‘Al-Fiqh Al-Islaamiy Wa Adillatuhaa’ mentioned that Ad-Dahlawiy held the opinion that it is obligatory to fight the Khaleefah if he disbelieved by denying an essential matter from amongst the essential matters of the Deen and in this case the fighting is considered as Al-Jihaad Fee Sabeelillah. And if he does not disbelieve then he is not fought (Al-Fiqh Al-Islaamiy Wa Adillatuhaa, Dr Wahbah Az-Zuhaily, 707/6).
And he (Az-Zuhaily) mentioned that Muhammad Asad said that if the government takes a position deliberately and blatantly challenging the Qur’anic texts, then this position is considered as Kufran Bawaahan, a matter that makes obligatory the removal of the authority from its hands and to topple it. And in other than the case of the declaration of Kufr, then it is not obligatory to strip the authority from the government by way of armed revolt at the hands of a minority from the society because the Shar’aiah texts warned about doing that (Al-Fiqh Al-Islaamiy Wa Adillatuhaa, Dr Wahbah Az-Zuhaily, 707/6).
He (Az-Zuhaily) then mentions the opinion of Muhammad Yousuf Moosaa who viewed as strongest the view of Ibn Hazm, that the deviating Ruler is revolted against whether he has manifested Kufr Bawaah or less than that however this is upon the condition of preserving the unity of the Ummah and keeping it away from the spilling of blood without necessity… He went on to say: And this opinion is close to the view of the Mu’tazilah who viewed it as obligatory to rebel against the authority when it is possible and the capability exists (Al-Fiqh Al-Islaamiy Wa Adillatuhaa, Dr Wahbah Az-Zuhaily, 710/6).
And it was mentioned in the book: ‘Ad-Difaa’ Ash-Shar’iy fi-l-Fiqh Al-Islaamiy’ of Dr Muhammad Sayyid ‘Abdut Tawaab that the deviations that are perpetrated by the authority are of two categories:
1) Deviations that are merely contraventions of the Islamic Shar’iyah and they represent that which is less than Kufr Bawaah.
2) Deviations which are considered to represent the invalidation or ruin of the Islamic Shar’iyah and they are representative of Kufr Bawaah and the rule of Kufr Bawaah applies upon it.
And the ruin of the Islamic Shar’iyah or Kufr Bawaah and what is like it is manifested in three forms. The first two forms are attributed to Dr ‘Ali Muhammad Juraishah as mentioned in his book: ‘Al-Mashroo’ah Al-Islaamiyah Al-‘Ulyaa’ and the third form represents what the author views to be necessary to be added to the first two. Here are the forms that he mentions:
The first form: The implementation of other than the Islamic Shar’iyah and he used as evidence the words of Allah (swt):
وَمَن لَم يَحكُم بِما أَنزَلَ اللَّهُ فَأُولٰئِكَ هُمُ الكافِرونَ
Whosoever does not judge by what Allah has revealed, such are the Kaafiroon (Disbelievers)
(Al-Maa’idah 44)
The second form: The implementation of some of the Shar’i rules in some areas whilst adopting non-Islamic rules in other areas and the following statement of Allah (swt) relates to this:
وَأَنِ احكُم بَينَهُم بِما أَنزَلَ اللَّهُ وَلا تَتَّبِع أَهواءَهُم وَاحذَرهُم أَن يَفتِنوكَ عَن بَعضِ ما أَنزَلَ اللَّهُ إِلَيكَ
And so judge between them by what Allah has revealed and follow not their vain desires, but beware of them lest they turn you away from some of that which Allah has sent down to you
(Al-Maa’idah 49)
And the third form: The allegiance of the Muslim ruler to the disbelieving states in aggression against Muslims and this is based on the speech of Allah (swt):
يا أَيُّهَا الَّذينَ آمَنوا لا تَتَّخِذوا عَدُوّي وَعَدُوَّكُم أَولِياءَ تُلقونَ إِلَيهِم بِالمَوَدَّةِ وَقَد كَفَروا بِما جاءَكُم مِنَ الحَقِّ
O you who believe! Do not take my enemies and your enemies as friends, showing affection towards them, while they have disbelieved in what has come to you of the truth
(Al-Mumtahanah 1)
And the author of ‘Ad-Difaa’ Ash-Shar’iy Fi-l-Fiqh Al-Islaamiy’ said: ‘It may be correct to differentiate between the violation of the Shar’iyah and its ruin. And to take the Ahaadeeth about obedience in the case of the mere violation of the Shar’iyah and apply the Ahaadeeth of using force to the case of the ruin of the Shar’iyah and the arrival to the point of Kufr Bawaah’ (Muhaamad Sayyid ‘Abdut Tawaab, 479-484).
In the book: ‘Minhaj Al-‘Audah Ilaa l-Islaam’ Dr Muhammad Sa’eed Ramadhaan Al-Bootiy said about the ruler: ‘If he orders them with a sin or he forbids them from the Shar’iah obligations, then they do not obey him in that where there is not obedience to the created in disobedience to the creator… however his commanding them with a sin does not justify rebelling against him’ (Minhaj ‘Audah Ilaa l-Islaam, Al-Bootiy, 58).
And after having taken a look at the opinions of the classical Fuqahaa and the books of the modern Islamic thinkers in relation to the issue and question regarding the legitimacy of Al-Qitaal (fighting) against the Munharif (deviating) ruler and before presenting my own opinion, I find it necessary to first discuss the view of Ibn Hazm in regards to the abrogation of the Ahaadeeth related to hearing and obeying the Faasiq and oppressive ruler. In addition to discussing the opinion of the Mu’tazilah and those that agreed with them in respect to obligating the fight against the ruler if he is Faasiq or Zhaalim based on understanding the Ahaadeeth of ordering the Ma’roof and forbidding the Munkar in an unrestricted manner.
As for the opinion of Ibn Hazm in relation to the abrogation of the Ahaadeeth commanding the obedience to the ruler who is Faasiq or Jaa’ir (oppressive) with the argument that this agrees with the situation of Islaam before the revealing of Al-Qitaal, and then when Al-Qitaal was legislated this first reality (i.e. of obedience) was abrogated (Al-Muhallaa, Ibn Hazm, 362/9). It appears to me that this opinion is clearly weak and this is because many of the Ahaadeeth mentioning the obedience to the ruler if he is Faasiq or Zhaalim were revealed after the legislation of Al-Qitaal. In addition some of these Ahaadeeth carry indications that they are intended for what will happen in the future in relation to deviations perpetrated by the people in authority away from the truth and justice and what is obligatory upon the Ummah when it faces these deviations in terms of hearing and obeying as mentioned in some of the Ahaadeeth and rebelling against the ruler as mentioned in others.
It was recorded in the collection of Ibn Abi Shaibah that Hudhaifah Bin Al-Yamaan (ra) said: “The people used to ask the Nabi ﷺ about good things whilst I used to ask about the bad. He said: I asked: O Messenger of Allah! Do you see the goodness that we are in, will there be after it bad? He ﷺ replied: Yes. I said: What is the protection from it? He replied: The sword. He (Hudhaifah) asked: O Messenger of Allah! Is there anything after the sword? He replied: Yes, the truce. I said: O Messenger of Allah! And what will be after the truce? He said: The callers to misguidance, then if you see a Khaleefah (at that time) then stick to him and even if he violates your back with beatings and takes your wealth. And if there is no Khaleefah then flee until death comes to you whilst you are clinging on to a tree by your teeth…” (Musannaf of Ibn Abi Shaibah, 8/15, Sunan of Abu Daawood 4244 and Al-Albaani said it is Hasan, Saheeh Sunan of Abu Daawood 3569).
And it is clear from this Hadeeth that it is speaking about that which will happen and what the Shar’i rule is in regards to facing this reality which will happen. And the speech in this Hadeeth is not about the early times of Islaam before the legislation of Al-Qitaal. As such we say: That the claim of Ibn Hazm in respect to the Ahaadeeth of hearing and obeying being abrogated in regards to the Faasiq or oppressive (Jaa’ir) ruler, is a claim that is not supported by the evidences.
As for the opinion of the Mu’tazilah and those who shared this opinion in regards to obligating the fight against the Ruler if he becomes Faasiq or Zhaalim based on the Ahaadeeth of ordering the Ma’roof and forbidding the Munkar, then Ash-Shawkaani has responded to this opinion as follows:
‘Those who said that it is obligatory to rebel (Khurooj) against the oppressors, oppose them with the sword and struggle against them by Al-Qitaal based their opinion on the generality of the evidences in the Kitaab and the Sunnah related to the obligation of ordering the Ma’roof and forbidding the Munkar. And there is no question or doubt that the Ahaadeeth that the author has mentioned in this category (Baab) (i.e. the Ahaadeeth of hearing and obeying the ruler even if he commits Fisq or Zhulm) of which we have mentioned many, that these are absolutely more specific than the generalities. And it is Mutawaatir in meaning as is known by the one who has knowledge of the Sunnah. However the Muslim should not place this upon the righteous predecessors who stood up in rebellion against the oppressive rulers because they did this based on their Ijtihaad. They were from amongst those who had the most Taqwaa of Allah and were more obedient to the Sunnah of the Messenger of Allah ﷺ than those who came after them from amongst the people of knowledge. And some people overstepped the mark, like Al-Karraamiyyah who due to rigidity in respect to the Ahaadeeth of this category (i.e. hearing and obeying) judged Al-Hussein (ra) to be a Baghi (rebel) in respect to Yazeed Bin Mu’aawiyah the drunkard who tore up of the sanctities of the Shar’iyah. And the number of writings that make the skin crawl is shocking and boulders would crack open upon hearing them!’ (Nail Al-Awtaar, Ash-Shawkaani 186/7).
The understanding given here is that the Ahaadeeth relating to hearing and obeying the Faasiq (or Faajir) and oppressive leader are Ahaadeeth Khaassah (specific) whereas the Ahaadeeth about denying or forbidding the Munkar by the hand or to repel the oppressor by force (Al-Qitaal) are Ahaadeeth ‘Aammah (general). Therefore the general Ahaadeeth are applied generally with the exception of the cases or situations where the specific Ahaadeeth have specified and taken outside of the generality. As such the action proceeds according to general evidences within one area (or scope), whilst proceeding according to specific evidences within another area. And as the scholars of Usool say: ‘It is better to work (i.e. use) both evidences than working with one and neglecting the other’. In relation to when apparent contradictions between the evidences exist in relation to one single Mas’alah (issue) the books of Usool have stated: ‘Outweighing (At-Tarjeeh) between two evidences is only resorted to when it is not possible to work (or use) both of them. So if it is possible and even if (only) from some angles, then the practise of working with both is designated and it is not permitted to outweigh between them because using both evidences is better than the neglect of one of them. Therefore the original position in respect to the Daleel is to work with it and not to abandon or neglect it’ (Usool Al-Fiqh, Muhammad Abu n-Noor Zuhair, 200/4).
We will now mention the opinion that we have outweighed to be strongest in this Mas’alah (issue). The following can be understood from the Shar’iyah texts:
a) The obligation of Sabr (patience) and the forbiddance of fighting the Haakim (ruler) if he deviates with Fisq, Zhulm or commands a Ma’siyah (sinful act of disobedience to Allah Ta’Aalaa). This is in accordance to the Ahaadeeth that we have already presented many of which relate to this Mas’alah. The exception is in regards to specific cases of deviations in which fighting has been legislated, and even if it has not reached the level of Kufr Bawaah although the legislator has deemed it to be of the same status or level as Kufr Bawaah in regards to the legitimacy of fighting the ruler. And this is due to what is perceived of the danger that would befall the Islamic community if these deviations are present in him or from him.
These deviations are:
1) The abandoning of the Salaah by the ruler.
2) The abandoning of the Sawm (fasting) by the ruler.
And the above two cases are indicated in the previously mentioned Hadeeth that stated: “… Should we not fight them O Messenger of Allah? He said: Leave them me as long as they fast and they pray” (Mujamma’ Az-Zawaa’id, Al-Haithami 224/5). And the Mafhoom (understanding) of this Hadeeth is that they are fought if they leave the Sawm and the Salaah.
3) The Imaam not establishing the Salaah within the Ummah.
This is guided to in the Hadeeth that mentioned in it: “… We asked: O Messenger of Allah. Should we not contest with them (in that situation)? He ﷺ replied: No as long as they establish the Salaah amongst you” (Saheeh Muslim and Al-Bayhaqi 158/8). And the Mafhoom (understanding) of the Hadeeth is that you should fight them if they do not establish the Salaah amongst you. And the meaning of establishing the Salaah within the Ummah is that the Ummah is called or invited to the prayer and are accounted upon leaving it. This is because without the accountability the call or invitation (if it exists) is empty of significance, a mere appearance with no reality to it.
And translating the accountability for leaving the Salaah in the language of our time means that there is required to be a law amongst the laws of punishments that is specific to it. Al-Qaadi Abu ‘Iyaad considered the Imaam abandoning the invitation to the Salaah as an example of the occurrence of Kufr which excludes him from the leadership (Imaamah) (Sharh An-Nawawi of Saheeh Muslim, 35/8).
And the accounting of the people by the Haakim (ruler) for leaving the Salaah does not mean that every individual has a watcher or monitor over him watching to see if he has left the Salaah as the like of this style is not found in the time of the Messenger ﷺ or the time of the Sahaabah (rah). Rather it is sufficient that a the status of the Salaah has not been lessened or undervalued by the individuals or within the society in respect to this fundamental feature and rite of Islaam.
4) There is a fourth case from amongst the cases of deviation that is less than Kufr Bawaah but nevertheless takes the Hukm of Kufr Bawaah in respect to the legitimacy of using armed force in opposing the ruling authority if it stands out in the society. And this is the case of the ‘Ma’siyah Al-Bawaah’ (the clear and blatant sinful disobedience). This means: The blatant and evident act of disobedience that openly occurs between the people and it is not met by denunciation or attempts to change it.
This has been indicated by the narration that was quoted by Ibn Hajar in ‘Al-Fath’ from the Hadeeth relating to disputing those in authority: “… And that you should not dispute with the people of authority unless there is a Ma’siyah to Allah that is Bawaah” (Fath ul-Baari, Ibn Hajr, 8/13). And the understanding taken from this narration is that you dispute the people of authority i.e. fight those possessing the authority when the Ma’siyah of Allah is Bawaah i.e. The open appearance of sinfulness that is not opposed with attempts to change nor is it denounced or rejected!
5) There is a fifth case of deviation that takes the Hukm (ruling) of Kufr Bawaah and even if it wasn’t Kufr Bawaah and this is the case represented in the narration: “…As long as he doesn’t order you with a Ithm (sin) Bawaah” (Fath ul-Baari, Ibn Hajar, 8/13). And the Mantooq (expressed meaning) of this narration is that it is not legitimate to dispute the people of authority by armed force as long as they refrain from ordering the Ithm (sin) in an open manner and display. Therefore if they ordered with an Ithm (sinful act) or Ma’siyah (act of disobedience to Allah) in a hidden or discrete manner or in a way in which the ordering of the Ithm Bawaah (clear sin) does not apply (i.e. that it is Bawaah/evidently clear), then in this case it is not permitted to dispute with them.
However if the veil of shame or shyness is lifted from their faces and they begin to challenge openly the Shar’i rules and issue to the people that which is considered an Amr Bawaah (A clear order) to do a sin (Ithm), Fusooq (rebelliousness and disobedience to the Shar’a) or any act of disobedience, then the understanding of this narration provides the legal legitimacy to fight him in this situation.
These are the five cases in which the Shar’iyah texts have indicated that it is legitimate to use armed force to bring the downfall of the rule (authority) if any of these occur. And all of them do not make the ruler or the regime/system reach the level of Kufr Bawaah as long as it is not linked to what indicates the disbelief of the ruler of the disbelief of the regime or system of the ruler. However despite this the Shar’iyah texts have provided them with the Hukm (ruling) of Kufr Bawaah in respect to revolting against the Haakim (ruler) if they (these cases/scenarios) appear. This is due to the dangerous and serious effects that threaten the Islamic community in the same way as Kufr Bawaah threatens it.
And in order to make clear the difference between the Fisq (rebellious disobedience) in which it is not permitted to rebel against the ruler and the Ma’siyah Al-Bawaah in which it is permissible, we set forth the example of the Fisq that occurs within the confines of the palace in terms of the perpetration of Munkaraat (clear Haraam acts) and the breaching of the sanctities in the case where the information or news of that leaks out to the people outside the palace without the Fisq being made apparent and evident in front of their eyes. In this case there is no room (permission) to rebel.
However if all of this happens in a public occasion or party/celebration and it is passed to the ears and sight without shyness and shame, then we are faced with the Ma’siyah Bawaah to Allah (open blatant disobedience) and this is even if the ruler did not attend this event but nevertheless permitted it and did not denounce it. Yes in this case, we are faced with the Ma’siyah Bawaah to Allah (swt) and as such it is dealt with in accordance to what the Shar’iyah texts have guided to when this occurs. This is of course after attempts are made to change this reality in a peaceful manner.
We have now completed the discussion of (a) in which we have listed the cases of Inhiraaf (deviation) that do not reach the level of Kufr Bawaah but nevertheless take its Hukm (ruling) in respect to rebelling against those rulers who commit these acts and deviations.
b) And the Shar’iyah texts have also guided to the obligatory use of armed rebellion at the time when Kufr Bawaah appears. This situation is indicated in the Hadeeth that mentions within it:
“…And to not dispute the people of authority unless you see Kufr Bawaah for which you have a Burhaan (clear proof/evidence) from Allah in regards to it” (Al-Bukhaari 7055 (Fath ul-Baari 5/13) and Muslim 1709).
And the Mafhoom (understanding) of this Hadeeth is to dispute the authority of those possessing it meaning: Fight the people of authority to strip the rule from their hands if or when you see Kufr Bawaah in which there is no doubt in regards to it. And Kufr Bawaah is represented in three manners:
1) The Kufr Bawaah from the ruler himself.
2) Kufr Bawaah appearing from Muslim individuals through their apostasy from Islaam without denouncement or disapproval from the Haakim (ruler).
3) The Kufr Bawaah represented in the system of the Haakim i.e. He establishes a ruling system upon a Kufr Aqeedah and even if the ruler does not disbelieve himself.
1) As for the Kufr of the ruler himself then this is not a problematic issue in the case where the Fuqahaa have come out strongly in regards to the obligation of disputation in this case (Sharh An-Nawawi of Saheeh Muslim, 35-36/8 and Fath ul-Baari, Sharh of Saheeh Al-Bukhaari, Ibn Hajar, 8/13).
2) As for what the Hadeeth indicates in respect to disputing the people of authority due to the existence of Kufr Bawaah from individual Muslims as a result of apostasy from Islaam without the Ruler denouncing and rejecting this, then this is because this situation confirms to us that we are witnessing Kufr Bawaah. And the text of the Hadeeth did not restrict the Kufr to the Haakim or anyone else and the only restriction is that this Kufr must be Bawaah (flagrant) i.e. blatant and spread without being denied.
And of course there is nothing here in regards to the presence of Kufr amongst the Ahl-udh-Dhimmah and Musta’maneen (those who have been granted security to enter Daar ul-Islaam) due to this case being dealt with by the contraction of the contract of Dhimmah (protection) and Amaan (security).
In any case if some were to outweigh the Hadeeth to carry the meaning that unless you see Kufr Bawaah from the Haakim, then this does not pose a problem. This is because the appearance of Kufr Bawaah from the societies’ individuals followed then by the silence (acceptance) of the Haakim (ruler) represents the existence of Al-Ma’siyah Al-Bawaah (Flagrant act of disobedience) which has been discussed under the previous point.
3) As for what the Hadeeth indicates in respect to disputing the authority in the case of the establishment of a (ruling) system upon a Kufr Aqeedah, then this is because this Shar’i text did not restrict the disputation of the people of authority in relation to the Kufr (disbelief) of the Haakim alone. But rather it stated: “…Unless you see Kufr Bawaah for which you have a Burhaan (clear proof) from Allah”. And the witnessing of Kufr attests to the Kufr that is seen from the Ruler and it attests to the Kufr that is witnessed from other than the Haakim just as it attests to the Kufr that is seen from the ruling system when it has been established upon a Kufr Aqeedah and obliged upon the people. This is like the situation where the ruling system is based upon the belief of: ‘There is no God and life is (merely) matter’ and from this belief the systems of the state and society are established. Or if the ruling system was based upon the Aqeedah of ‘Separating the Deen from the life and the state’ and upon this Aqeedah the internal and external policies of the state were based and established.
Built upon this understanding, in regards to the mere commanding of the people by the Haakim with a Ma’siyah whilst the system that he rules with considers this as a deviation from the system; then the like of this behaviour is not considered Kufr whether in respect to the ruler or the ruling system. However if the ruler orders this very same Ma’siyah on the basis that it belongs to the system making it (the disobedient act) permissible and legal because it is built upon the Aqeedah of: ‘The separation of the Deen from the state and life’ for example, then in this case the Ma’siyah would be considered as Kufr Bawaah.
In other words: The state with its systems is considered like a person is metaphorically and the same applies to it as applies to the real person.
And the person is described according to his Aqeedah in relation to his Islaam (belief) or Kufr (disbelief) i.e. the basis upon which his behaviour is established in addition to his viewpoint towards things and actions.
So the person is Muslim if he believes in Islaam and even if he committed sins which are considered deviations.
Similarly the metaphorically considered person which refers in our study here to the state and its systems is described with the attribute of Islaam or Kufr in accordance to the Aqeedah or basis upon which it is established. So the Islamic State for example is established upon the basis of the Islamic Aqeedah and even if deviations occur within its framework as long as the basis of the state considers these deviations as not being legitimate.
In the case of the real person we would call that person a Kaafir for example because he believes in matter (Communist belief) or he believes in the separation of the Deen from the state and life (Capitalist belief). As such if he perpetrates actions that are in negation to Islaam then he does this on the basis that they are actions that are not affirmed by his Aqeedah but rather they are established upon the basis of legitimacy built upon the Aqeedah that he believes in.
Indeed I say here: The like of this Kaafir (disbeliever) person and even if he abides by the Islamic Ahkaam in all of his behaviour, we still make judgement upon him with Kufr (disbelief) because he has established this abiding built upon his Imaan (belief) in the Aqeedah that has provided those Islamic rules that he abides by. But rather he has abided by them for another motive, perhaps under the pretext of Maslahah (benefit), or due to customs and norms or as a result of any motive or purpose from amongst the purposes etc… (Note: Ibn Taymiyyah in ‘Majmoo’ah Ar-Rasaa’il Al-Mufeedah, 209: ‘And if he believes that the Salaah is a righteous act, that Allah loves it and rewards it and then prays upon that basis, praying the night and fasting the day whilst at the same time he does not believe that it is obligatory upon every mature person, then he is a disbelieving apostate until he believes that it has been obliged as a Waajib upon every Baaligh (mature) and ‘Aaqil (sound minded) person).’
As such we say in regards to the case of the metaphorically considered person which is the State and its systems that it is named as being an un-Islamic state if it has been established upon a basis other than the Islamic Aqeedah like: ‘Matter’ or ‘The separation of the Deen from the state and life’. So in this case where within it there are acts that are in violation to Islaam then they do not exist on the basis that they are deviations that the Aqeedah of the state or its systems reject. Rather they exist upon the basis that they are legitimate legal acts attaining their legitimacy from the Aqeedah that has been made the basis of the state and the system that emanates from it. Indeed we also say here: That the like of this non-Islamic state and even if it abides by the Islamic rulings in many of its systems and affairs, which is a merely a hypothetical and imaginary matter, like if we were to envisage that this were to happen in America for example, whilst it remains upon the capitalist Aqeedah as the basis of its state, we would not judge this state to be Islamic. This is as long as its Aqeedah (belief) is non-Islamic because the abiding by the Islamic rulings in this case was not based upon the Islamic Aqeedah but rather upon an Aqeedah that permits the adoption of Islamic rulings just as it permits adopting from other than them according to the Maslahah (interest/benefit). And because it can at any time abandon being bound by it by legislating new systems (and rulings) that contradict with Islaam, the legitimacy of which is based on the capitalist Aqeedah which is the basis of the state. And built upon what has preceded it is clear to us that the Kufr Bawaah can be seen within the Ruler himself just as it can be seen within the ruling system or in the state that rules with a specific system by taking regard of the Aqeedah that the person (i.e. ruler) or state has adopted.
Following on, the Shar’iyah texts have stipulated that for the Kufr Bawaah to be considered as such that there needs to exist a decisive evidence that indicates that it is Kufr Bawaah: “Unless you see Kufr Bawaah of which you have a Burhaan (clear proof) from Allah” and the Burhaan is the decisive evidence (Daleel Qat’iy) by which it is ascertained with certainty that it is Kufr (Mishkaat Al-Masaabeeh 3666).
As such no person or group from amongst the people of ruling should rush to oppose the head of state or his regime due to the appearance of Kufr Bawaah from him or by him unless there is a Daleel Qaati’ (Decisive evidence).
Because this issue is a matter in which there may exist difference of opinions, and it relates to the issues of dispute between the ruler and the subjects, then the Shar’a has legislated that the issue is returned in judgement to the Book of Allah and the Sunnah of His Messenger ﷺ.
He (swt) says:
يا أَيُّهَا الَّذينَ آمَنوا أَطيعُوا اللَّهَ وَأَطيعُوا الرَّسولَ وَأُولِي الأَمرِ مِنكُم ۖ فَإِن تَنازَعتُم في شَيءٍ فَرُدّوهُ إِلَى اللَّهِ وَالرَّسولِ إِن كُنتُم تُؤمِنونَ بِاللَّهِ وَاليَومِ الآخِرِ ۚ ذٰلِكَ خَيرٌ وَأَحسَنُ تَأويلًا
O You who believe! Obey Allah and obey the Messenger (Muhammad), and those of you (Muslims) who are in authority. Then if you dispute in anything amongst yourselves, refer it to Allah and his Messenger, if you believe in Allah and In the Last Day. That is better and more suitable for final determination
(An-Nisaa 59)
So returning to Allah and the Messenger means returning back to the speech of Allah ‘Azza Wa Jalla and the speech of the Messenger of Allah ﷺ i.e. the Kitaab and the Sunnah. And returning to the Kitaab and the Sunnah means returning to the direction from which the Ahkaam are issued and based upon. This is the returning (referring back to) that decisively decides the dispute which the Aayah has guided to. The dispute would remain standing between the ruler and the Ummah if no reference point exists that each party is bound to in terms of rulings. Each would rely upon Shar’iyah evidences that support their view as they understand it and as a result this would mean the suspension of the Aayah that has commanded to refer back to Allah (swt) and His Messenger ﷺ so as to decisively deal with the dispute. Due to this it is obligatory to appoint a reference point that can be referred to by the two disputing parties which issues rulings which each party is bound to abide by.
And it is known that the reference point (or body) that issues the rulings in respect to this disputation within the Islamic State is the: ‘Wilaayat-ul-Mazhaalim’ or ‘Qadaa-Ul-Mazhaalim’ (The authority of unjust acts or the Settlement of unjust acts) (Refer to the mandatory powers of the ‘Wilaayat-ul-Mazhaalim’ in Al-Ahkaam As-Sultaaniyah of Al-Mawardi 80-83, Al-Ahkaam As-Sultaaniyah of Al-Faraa’ 61-63, Introduction to the constitution, An-Nabhaani 227-228, Ma’aalim Al-Khilaafah of Al-Khaalidiy 364 and Deewaan Al-Mazhaalim of Dr Hamdi ‘Abdul Mun’im, 122-138).
So if this settling body issues its judgment in regards to the appearance of Kufr Bawaah then the removal of the Haakim from the authority takes place upon the basis of this judgement and he is judged in the courts for the crime that he has committed. And if he clings on to his position and is supported by military power, then it is necessary to activate another military force to fight the Haakim and those who support him until the matter is settled according to what it should be.
The same is said in regards to the deviations that threaten the legislation and take the ruling of Kufr Bawaah in terms of making the raising of arms in opposition legitimate. So it is necessary for a Hukm Shar’iy (legal verdict) to be issued from the Mazhaalim settling body in terms of affirming the presence of it or negating it. This is because these are the cases which are related to disputation and require for there to be necessarily a specific point of reference that can deal decisively with this dispute and issue a judgment in regards to it. And upon the basis of this judgment the legitimacy of Al-Qitaal (fighting) is decided.
And before leaving this point somebody may question: In the cases of Inhiraaf (deviation) that do not justify the use of force to straighten and correct the matter like the Fisq that is not Bawaah, Zhulm and what is similar… Does this mean that the Islamic System protects the like of these situations of deviation that occur when it is obligatory upon the Ummah to hear and obey, and it is prohibited to fight to correct the situations?
And the answer to this questioning is there is within the classical and modern Ijtihaadaat that obliges the fighting of the deviating Haakim to correct the situation – as has been explained earlier – and this relates to every deviation whether it is small or large in nature.
However the majority forbid that in regards to the Inhiraafaat (deviations) that do not reach the level of Kufr Bawaah.
The following was mentioned by An-Nawawi in his Sharh of Saheeh Muslim: ‘The ‘Ulamaa said: And the reason for not removing him (i.e. the Faasiq or Jaa’ir (oppressive) ruler) and the Tahreem (prohibition) of rebelling against him is due to what results from this in terms of Fitan (plural of Fitnah), the shedding of blood and the ruining of the unity (between the Muslims), and therefore the harm resulting from his removal are greater than the harm of his remaining in authority’ (An-Nawawi, Sharh Saheeh Muslim, 35/8).
Meaning: That silence upon the occurring cases of deviation (i.e. where fighting is not legitimate) is not by way of contentment or acceptance of this by the Islamic system. But rather it is viewed by way of choosing between the weakest (or least) of the two evils.
And in any case, the adequate answer covering the dimensions of this questioning in my view is: That the appearance of deviations for which Al-Qitaal has not been made legally legitimate are obligatory upon the Ummah to raise these matters with the Mazhaalim (unjust acts) judiciary body so as to remove them. And the Mazhaalim body will look at as follows:
If the ruler responds to the judgement of the judiciary for his removal, then he is removed (Fath ul-Baari, Ibn Hajar, 8/13).
If he does not respond but rather the issue is followed by the outbreak of fighting between the supporters of the ruler and his opposition. Then in this issue the judiciary body weighs up the issue between two cases:
The case of having patience in regards to the deviated situation and what results from it in terms of harm.
And the case of judging that the ruler should be removed with the risk of the outbreak of fighting between the supporters of the authority and those who oppose it and what results from that in terms of harms. So if the harms of fighting are outweighed to be greater or the chances of being successful in removing the ruler are weak, then the judiciary body refrains from issuing the ruling for the ruler to be removed. The obligation of obeying this ruler continues in other than the Ma’siyah (act of disobedience) as well as the continuation of the obligation to exhort him, intimidate and account him. However in the case where the harms of remaining patient upon the deviation are greater and it is viewed as most probable that the opposition will be successful in bringing the downfall of the Haakim (ruler), then the judgment of removal is issued upon him. Then if the ruler does not leave the authority by his own accord, he is considered Mughtasib (someone who has taken authority or possession illegally without right). He is then fought upon the basis that the authority has been taken without right just as any Mughtasib is fought until he returns that which he has unlawfully taken, and this is the subject of the following study.
The basis in outweighing in relation to deciding whether fighting should take place or not take place, is the Shar’iyah Qaa’idah (principle) relating to performing the ‘Ahwanu Ash-Sharrain’ (The least or weakest of the two evils) (Usool Al-Fiqh Al-Islaamiy, Muhammad Mustafaa Az-Zuhaili, 98) which has been previously established.
And with the answer we find that we have not made redundant any text from amongst the Shar’iyah texts that relate to this subject area. Indeed all of the evidences are used, each in its specific area or scope in accordance to the Usooli principle stating that to utilise and work with all of the texts is better than working with some of them whilst neglecting or discarding others (Usool Ul-Fiqh, Muhammad Abu n-Noor Zuhair, 200/4).
And before leaving this point the following question may also arise:
Do the realities and situations that exist in the Islamic lands today take the ruling in terms of the legal legitimacy of fighting Kufr Bawaah and what follows its rule?
The answer is some of them view this to be the case (Refer to ‘Ad-Difaa’ Ash-Shar’iy Fil Fiqh Al-Islaamiy, Dr Muhammad Sayyid Abdut Tawaab, 485-487). And this is where no difference has been seen between the reality of the lands that were ruled by Islaam and then attempts were made to take it away from the rule of Islaam resulting in the appearance of Kufr Bawaah in them, and between the reality of the Islamic lands which have for a long period of time ruled by other than Islaam and their affairs have settled upon this state of affairs. And as long as these are not shown in this difference between the two realities then their opinion in relation to igniting rebellion against the deviating authorities for the sake of correcting the situation represents an absence of a differentiation between these two realities.
On the other hand there are other Islamic Ijtihaadaat that do not hold this opinion but rather they view that the difference between the two realities is a matter that necessarily calls for a difference in regards to the Hukm (Majallah Al-Wa’ei, Beirut, Issue 11, 1989).
It was mentioned in the ‘Wa’ei’ magazine published in Beirut in relation to the Ahaadeeth relating to the disputing by way of sword, that these have only been related specifically for the lands that were already ruling by Islaam and that they do not apply to other than this reality. The following was mentioned in the magazine: ‘So the Ahaadeeth do not talk about the original Daar ul-Kufr or the land that has changed to Kufr and then settled upon it for a long period of time. And a precise detailed look at the context of the Hadeeth makes clear the scope of the subject that it is discussing’ (Al-Wa’ei, Issue 11, p15). And we would have liked for the author of this article to have shown us the detailed process of examination that he referred to, so that we could see by way of this close examination of the context of the texts how the Hukm of opposing with the sword is restricted specifically to the lands which had been ruling by Islaam and then began to go through a stage of transformation to the ruling by other than Islaam, followed by the appearance of Kufr Bawaah in them.
In any case we will proceed ourselves with a detailed examination with the angle that was guided to so that we can see what we can find.
We find that the previous texts discuss the best of Imaams that are followed by the worst of Imaams.
Just as they discuss the Khulafaa acting by what they (the Muslims) know (recognise from Islaam), and doing what they have been commanded, and then there will come after them Khulafaa who act with that which they do not know (i.e. recognise from Islaam), and they do that which they have not been commanded.
And they also discuss the situations in which it is obligatory to hear and obey the people of authority and in which it is Haraam to dispute their authority and then when it is justified to dispute their authority.
And we will now take a text from these Shar’iyah texts which represents the others in demonstrating clearly the transfer from one situation or reality to another. ‘Ubaadah Bin As-Saamit (ra) said: “We gave the Bai’ah to the Messenger of Allah ﷺ in the hardship and ease, it what pleases us and displeases us, and in preference over us, and that we would not dispute the authority of its people unless you see Kufr Bawaah of which you have a Burhaan (clear proof) from Allah” (Muttafaq ‘Alaihi).
So we are presented with a situation in which it is not permitted to dispute the people of authority followed thereafter by a justification for this disputing: ‘Unless you see Kufr Bawaah’. This means that we had not seen Kufr Bawaah before and then after that we saw it and therefore in the case of this transition the justification came as indicated by the Hadeeth.
And built upon this, the reality of the Islamic lands in which Kufr Bawaah is witnessed in our current times is a reality where the generations of this time have not witnessed these lands ruled by Islaam previously followed by the occurrence of the appearance of Kufr Bawaah thereafter. And based on this, the ruling taken from the texts of disputing with the people of authority is not applied upon the appearance of Kufr Bawaah or that which follows its rule.
Yes this transition occurred in the reality and the appearance of Kufr Bawaah began in the generation that lived in the period when the Islamic ruling system was cancelled, the Aqeedah of ‘Separating the Deen from the state and life’ was adopted and the western ruling systems were enforced upon the Islamic lands at the time when Mustafa Kamaal Ataturk abolished the Khilaafah and the existence of Islaam within the state in the year 1924.
Ataturk and the abolition of the Khilaafah:
The following was mentioned in the book ‘The Khilaafah State’ by ‘Abdur Rasheed ‘Abdul ‘Azeez Saalim: ‘… It became clear in the eyes of the people that Mustafa Kamaal was on his way towards abolishing the Khilaafah permanently in addition to all of the manifestations of Islaam within Turkey, so two large delegations from amongst the people of noteworthy opinion from Egypt and India rushed into action hoping that Mustafa Kamaal would appoint himself as the Khaleefah however he rejected with obstinacy and stubbornness. And on the 3rd of March 1924 he presented the national association body with the decree to abolish the Khilaafah and banish the Khaleefah in addition to enforcing the separation of the Deen from the State. He addressed those who opposed him saying: ‘Upon what price is it necessary to preserve a defined republic and make it progress upon the basis of solid scientific knowledge. The Khaleefah and those who have come from the Uthmaani (Ottoman) family must leave, the old Deeni courts and their laws must be replaced by modern courts and laws and the schools of the men of religion have to be replaced by governmental schools that are not religious’’ (Dawlat Al-Khilaafah, Dr ‘Abdur Rasheed Abdul Azeez Saalim, 190).
In regards to this and this man who manifested Kufr Bawaah, Ahmad Shawki who had previously praised that man said:
I seek forgiveness in morals, I am not of the deniers Who I used to repel other than him and insult
Should I say: Who will bring to life the atheist group And I say: Who has brought back the immoral rights.
He then went on to talk about the change that occurred in the system, people and society saying:
He took away the legislation, beliefs and villages And the people, are brigades carried in travel.
And this transformation and radical change which Mustafa Kamaal came with is represented in the words of the Messenger ﷺ when he said: “Unless you see Kufr Bawaah…”.
And it was obligatory upon the Muslims at that time in every part of the Islamic State to rise up to fight the authority of Mustafa Kamaal under the consideration that he had manifested and brought the Kufr Bawaah that had not been present before that. Those who lived in that period of time did not arise to fulfil this obligation and this situation continued where most of the Islamic lands were governed with systems of Kufr by way of direct colonialism, and then the rule by these systems continued after the colonialism had left most of the Islamic lands continuing up until our current age.
I say: As long as the Kufr Bawaah has been present in the Islamic lands for a long period of time, then what we witness today of Kufr Bawaah does not have applied to it the reality where we did not see it and then we saw it (i.e. where there had been Islaamic rule in which Kufr Bawaah appeared). Indeed we were born within its Fitnah and lived through its mire and we hope from Allah (swt) that we do not die until our eyes have found comfort with the return of His Shar’iyah and the establishment of His state.
Therefore those who follow this approach in understanding the Shar’iy text do not view that it is legally legitimate to fight against the standing authority within the Islamic lands which openly manifest Kufr Bawaah in our current time. It is my view that the Shar’iyah texts support this understanding as we have seen by close examination of the context of the texts and their use of worded expressions.
This however does not mean that the Muslims do not work to establish the Islamic society, the building of Daar ul-Islaam, establishing the Islamic State and bring back to life the Islamic Khilaafah and that which falls under the title of: ‘Resuming the Islamic way of life’.
Indeed the fact that fighting today is not legally legitimate against the deviated circumstances within the Islamic lands does not mean that the Muslims do not work to resume the Islamic way of life. Indeed the work to bring back the Islamic way of life is of the most important obligations obliged upon all of the Muslims. However the methodology towards achieving that is the very method that the Messenger of Allah ﷺ followed to build the Islamic society, establish the Islamic State, make all areas of life proceed according to the systems of Islaam and in taking the Bai’ah upon making war in the way of Allah.
And the explanation of this methodology is the subject of the coming discussion which is: ‘Fighting in the way of establishing the Islamic State against its adversaries’ and therefore we will leave the discussion of this subject to its time.
We now arrive at the final point in our discussion concerning Al-Qitaal against the deviation of the Haakim (ruler) and Kufr Bawaah.
Thirdly: Is this fighting considered as being Al-Jihaad Fee Sabeelillah (in the way of Allah)?
The answer is if the ruler has actually disbelieved and a force supports him aiding him upon his falsehood, then the fighting (Al-Qitaal) to remove him and kill him is considered as being Al-Jihaad Fee Sabeelillah. This is because the reality of fighting a Kaafir to raise the word of Allah ‘Azza Wa Jalla high is applied upon him. The following was stated in ‘Ar-Rawdah An-Nidiyyah’: ‘And in sum, if the Khaleefah disbelieves by denying a necessary matter of the Deen then it is Halaal to fight him, indeed it is obligatory as at that time the Maslahah (interest/benefit) of his appointment ceases to be and his Mafsadah (harm) is feared in respect to the people. As such fighting him is considered as being from Al-Jihaad Fee Sabeelillah’ (Ar-Raudah An-Nidiyyah, Siddeeq Hasan Al-Qanoojiy Al-Bukhaari, 521/2).
And the one who is killed rebelling against the Kaafir ruler is considered a Shaheed of the Dunyaa and the Aakhirah (This life and the hereafter) and this is even if he has been killed by a Muslim who is supporting the Kaafir ruler. In relation to this the following was stated in the book ‘Al-Minhaaj’ and its Sharh (explanation) ‘Mughni Al-Muhtaaj’: ‘And the Shaheed does not have Ghusl performed upon him, nor is he prayed over whilst he has died as a result of fighting the Kuffaar (disbelievers)’.
And the following was mentioned in ‘Mughni Al-Muhtaaj’ whilst detailing the circumstances in which the killed Muslim is considered as a shaheed (martyr) of the Dunyaa and the Aakhirah as a result of fighting disbelievers: ‘It is the same whether he was killed by a Kaafir, or by a Muslim weapon by accident or his own weapon, or if he fell in a well, down a pit or off his horse, or if he was killed by a Muslim Baaghin (the one who fights against the legitimate authority) who relies on help from the people of war…’ (Mughni Al-Muhtaaj, Al-Khateeb Ash-Sherbeeni, 350/1).
The apostate ruler becomes of the people of war as a result of his apostasy and the Muslims who fight in his ranks become Bughaat (rebels against the legitimate authority) relying and seeking help from the one who is from the people of war. So whoever is killed by their hands is killed in the war against the disbelievers and as such he is Shaheed and takes the Hukm of the Shaheed of the Dunyaa and the Aakhirah and the war is considered as Al-Jihaad Fee Sabeelillah.
As for the case when the ruler has not apostatised from Islaam and has only committed violations which have resulted in the judgment being passed for his dismissal. Then he clings on to power (after the issuance of the verdict) and fighting begins against him and his supporters. In this case the Qitaal (fighting) is considered as the fighting of Bughaat (rebels against the legitimate authority) just as ‘Ali Ibn Abi Taalib (ra) fought Mu’aawiyah Bin Abi Sufyaan after removing him from the Wilaayah (governorship) of Ash-Shaam (greater Syria) when Mu’aawiyah refused to give up his authority (Taareekh At-Tabari, 10/5 onwards).
And as such this Qitaal is not considered as Al-Jihaad Fee Sabeelillah according to the terminological Shar’i (Istilaahi) meaning of Al-Jihaad which we outweighed as strongest in the discussion about the fighting of the Bughaat.
Islamic Civilization 