1. The definition of حُكْم (hukm)
2. حُكْم (hukm) and قَضاء (qadaa’) are synonyms
3. What is the difference between judging and ruling?
4. In early times the kings and rulers were both judges and rulers
5. King Dawud and King Sulayman (as) both judged and ruled
6. When you rule, rule with justice
7. How do we know which meaning to use for hukm?
8. Conclusion
9. Notes

The term حُكْم (hukm) and its derivatives appear more than 250 times[1] in the Qur’an. Allah (Most High) says,

إِنَّ ٱللَّهَ يَأْمُرُكُمْ أَن تُؤَدُّوا۟ ٱلْأَمَـٰنَـٰتِ إِلَىٰٓ أَهْلِهَا وَإِذَا حَكَمْتُم بَيْنَ ٱلنَّاسِ أَن تَحْكُمُوا۟ بِٱلْعَدْلِ

Allah commands you to return to their owners the things you hold on trust and, when you judge between people, to judge with justice.[2]

يَـٰدَاوُۥدُ إِنَّا جَعَلْنَـٰكَ خَلِيفَةًۭ فِى ٱلْأَرْضِ فَٱحْكُم بَيْنَ ٱلنَّاسِ بِٱلْحَقِّ وَلَا تَتَّبِعِ ٱلْهَوَىٰ فَيُضِلَّكَ عَن سَبِيلِ ٱللَّهِ

Oh Dawud! We have made you a khaleefah on the earth, so judge between people with truth and do not follow your own desires, letting them misguide you from the Way of Allah.[3]

وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَٰئِكَ هُمُ الْكَافِرُونَ

“Those who do not judge by what Allah has sent down, such people are disbelievers (kafirun).”[4]

In most English translations as you can see, hukm is translated as judgement because the Arabic dictionary definition of hukm includes القَضاء (al-qadaa’) which means to issue a decree or judge.

In Lisan al-Arab (1290CE):

 والحُكْمُ: العِلْمُ وَالْفِقْهُ وَالْقَضَاءُ بِالْعَدْلِ، وَهُوَ مَصْدَرُ حَكَمَ يَحْكُمُ… قضى: القَضاء: الْحُكْم

 “Al-Hukm: knowledge; Jurisprudence; judging justly; its roots are Hakama, Yahkumu… Qada (executed): Execution, Ruling”

In Al-Qamus Al-Muheet (1410CE):

 الحُكْمُ، بالضم: القَضاءُ

“Al-Hukmu with a damma: execution”.

In Mukhtar As-Sihah (1268CE):

“الْحُكْمُ” الْقَضَاءُ وَقَدْ “حَكَمَ” بَيْنَهُمْ يَحْكُمُ بِالضَّمِّ “حُكْمًا” وَ”حَكَمَ” لَهُ وَحَكَمَ عَلَيْهِ…

Al-Hukm: Execution; and he had “ruled” between them; he rules with a damma “rule” and “he ruled” for it and he ruled over it…

This has led some modernists to cast aspersions on Islamic governance (al-hakamiyah) by claiming that hukm does not relate to ruling and authority but only judiciary (al-qadaa’). Abdelilah Belkeziz says, “There is a second result obtaining from the assertion of al-hakamiyah [governing] in the view of its critics, and that is a distortion of the Quranic meaning of the term hukm (rule) from which the utterance of ‘al-hakamiyah’ was derived according to the assumption that it is indicative of, or signifying, the political order or political authority. The situation is that most of the Quranic uses of the term ‘al-hukm’ signify adjudication (al-qada’) and resolution of disputes, or imply al-hikmah (wisdom) and rectitude of opinion; and furthermore, there is no connection for it to the khilafah or the political order. Thus, when Quranic verses describe Allah as al-Hakim (the ruler), it is not in the connotation of the king or holder of political authority, but rather in the connotation of the one who judges and distinguishes between people about that in which they differ in regard to his command. It is this meaning which is transmitted explicitly and without ambiguity in the Quran: ‘If you judge (wa in hakamta) [between people], then judge justly’.[5] For this reason, all that which those asserting al-hakamiyah call into evidence on the basis of derivations from the Quranic concept of ‘al-hukm’ is invalid in the view of those who take issue with it.”[6]

Although nowadays hukm is clearly used in relation to ruling and authority, is this meaning a new customary term (اِصْطِلاح) which was introduced by later generations of Muslims, or was it known in the time of the Prophet ﷺ and sahaba when the Qur’an was revealed?

If this meaning of ruling and governing was not used by the Arabs when the Qur’an was revealed, then the ayaat of the Qur’an containing the word hukm and its derivatives cannot be applied to ruling and authority. This principle applies not just to hukm but to all Arabic words used in the Qur’an and hadeeth. These meanings MUST have been known to the Arabs at the time of revelation i.e. the Prophet ﷺ and sahaba. For someone centuries later to bring a new meaning to an Arabic word, and then use this meaning in ijtihad (extracting law) or in ‘aqeeda is not permissible and is rejected.

Al-Shatibi says, “Among the assumptions is that it is necessary in the understanding of the sharia to follow what was known to the unlettered people, and these are the Arabs in whose language the Qur’an was revealed. If there was a continuous usage (‘urf) in the language of the Arabs, it is not valid to deviate from such meaning in the understanding of the sharia. If there was no such usage, it is not valid to apply meanings for its understanding that were not known to the Arabs.”

[al-Shatibi, Al-Muwafaqat fi Usul al-Shar’ia (The Reconciliation of the Fundamentals of Islamic Law), Volume II, Garnet Publishing, 2014, p.62]

As an example, the Ahmadiyya re-interpret the clear-cut ayah which refers to the Prophet ﷺ as the final seal of the Prophets خَاتَمَ ٱلنَّبِيِّـۧنَ to mean the best of the Prophets. Allah (Most High) says,

مَّا كَانَ مُحَمَّدٌ أَبَآ أَحَدٍۢ مِّن رِّجَالِكُمْ وَلَـٰكِن رَّسُولَ ٱللَّهِ وَخَاتَمَ ٱلنَّبِيِّـۧنَ ۗ وَكَانَ ٱللَّهُ بِكُلِّ شَىْءٍ عَلِيمًۭا

“Muhammad is not the father of any of your men, but the Messenger of Allah and the Final Seal of the Prophets.”

The Ahmadiyya say, “the phrase Khatamun Nabiyyin idiomatically means the Best of the prophets,” which is not correct, because خاتم (khaatam) did not have a metaphorical meaning of ‘best’ at the time of revelation.

The Seal of Prophethood (Khatam an-Nabuwat) by Professor Muhammad Al Massari

If we apply this concept to the term حُكْم (hukm), then its meaning of ruling, would need to have been known during the time of the Prophet ﷺ and sahaba, for this meaning to be applied to any Qur’anic ayaat or hadeeth. Let us see if this is the case, by examining حُكْم in depth, and how it was used by the Arabs at the time of revelation.

The definition of حُكْم (hukm)

The origin of the verbal noun حُكْم (hukm)[7] as used by the Arabs is the ‘bit’ of a horse.[8] A ‘bit’ is a piece of metal or synthetic material that fits in a horse’s mouth and aids in the communication between the horse and rider. It’s part of the bridle and allows the rider to connect with the horse via the reins. Al-Qurtubi says,

(الْحَكِيمُ) الْمَانِعُ مِنَ الْفَسَادِ، وَمِنْهُ سُمِّيَتْ حِكْمَةُ اللِّجَامِ، لِأَنَّهَا تَمْنَعُ الْفَرَسَ مِنَ الْجَرْيِ وَالذَّهَابِ فِي غَيْرِ قَصْدٍ

“(Al-Hakeem) is the one who prevents corruption, and from which it is called the “hikmah (حِكْمَة) of the bridle” (bit), because it prevents the horse from running and going unintentionally.”[9]

There are many words derived from حُكْم such as حِكْمَة (wisdom), حَكِيم (ruler), حاكِم (judge) and حُكُومَة (government), but all can be linked back to this origin of a ‘bit’ which is about controlling and guiding.

حُكْم (hukm) and قَضاء (qadaa’) are synonyms

The reason these two words are similar in meaning (synonyms) is because both حُكْم (ruling) and قَضاء (judging) are issuing decrees or judgements upon problems and disputes. Abu Hilal al-Askari (d. 1010CE), in his book ‘al-Furūq fī l-lugha’ and adapted by Prof Dr Mohammad Akram Chaudhary in the book ‘Thesaurus of Assumed Synonyms in Arabic’ says:

Hukm: حكم implies prohibition from a dispute; one says: أَحْكَمْتُهُ to mean: I prohibited him; and a poet says:

أبني حنيفة أحكموا سفهاءكم إنّى أخاف عليكم أن أغضبا

“O sons of Hanifah, restrain your foolish ones! I am afraid that I may become angry with you”.

It is also said that حكم is the settling of a matter by passing judgement in accordance with-the requirements of the intellect and the shar’. The expression: حكم بالباطل means “He has put the باطل (falsehood) in the place of the حق (truth)”. And حكم is used where قضاء cannot be used; e.g. one says: حكم هذا كحكم هذا (The ruling of this, is the ruling of this) i.e. the two things have similar causes, etc and أحكام of things can be of two kinds: those which refer back to an origin and those which do not, in that they are the first examples of their kind.

Qadaa’: قضاء implies the complete settling of a matter. One says: قضاه when someone completes something and stops working on it. Allah says, ثُمَّ قَضَىٰٓ أَجَلًۭا “Then He decreed a term”[10] i.e. He made a decision concerning it; وَقَضَيْنَآ إِلَىٰ بَنِىٓ إِسْرَٰٓءِيلَ “And We had decreed against the children of Israel”[11], i.e. We have warned them about it; قَضَيْنَا عَلَيْهِ ٱلْمَوْتَ “We decreed death for him”[12], i.e. We decided his death; and فَقَضَىٰهُنَّ سَبْعَ سَمَـٰوَاتٍۢ فِى يَوْمَيْنِ “So He ordained them seven heavens in two periods”[13], i.e. completed them.[14]

The hadith narrators also used the terms hukm and qadaa’ interchangeably in relation to judiciary, which is acceptable in sharia and does not change the meaning of the command or prohibition. Al-Hasan al-Basri (d. 110H/728CE) is reported to have said, “If we only narrated to you what we could repeat word for word, we would only narrate two hadiths. But if what we narrate generally communicates what the hadith prohibits or allows then there is no problem.”[15]

In a letter from the sahabi Abi Bakrah to his son Ubaidullah ibn Abi Bakrah, who took up the post of Qadi in Sijistan, he quotes the Messenger of Allah ﷺ as saying:

‏لاَ يَحْكُمُ الْحَاكِمُ بَيْنَ اثْنَيْنِ وَهُوَ غَضْبَانُ ‏‏

“The judge should not judge between two people while he is angry.”[16]

The verb used in this hadith narrated by Tirmidhi is يَحْكُمُ (judges).

In another version of the same hadith, this time narrated by Bukhari, it uses the verb يَقْضِي (judges) with a nun thaqeelah attached for additional emphasis. The Messenger of Allah ﷺ said,

‏ لاَ يَقْضِيَنَّ حَكَمٌ بَيْنَ اثْنَيْنِ وَهْوَ غَضْبَانُ

“A judge should not judge between two people while he is angry.”[17]

The reason for the difference in wording is in the isnad (chain of narrators). In the Tirmidhi chain it is: Qutaiba – Abu ‘Awaanah – Abdul-Malik bin ‘Umair – Abdul-Rahman bin Abi Bakrah, whereas in the Bukhari chain it is: Adam – Shu’aib – Abdul-Malik bin ‘Umair – Abdul-Rahman bin Abi Bakrah. The difference must have been introduced by either Qutaiba, Abu ‘Awaanah, Adam or Shu’aib.

Hukm in this hadith means judiciary and not ruling because of the qareenah (indication) in the hadith “judge between two people”, and also the context which is advice to a Qadi.

What is the difference between judging and ruling?

The executive branch of government (ruling) executes laws on people, whereas the judicial branch passes a judgement on a dispute and has no power of execution.

The reason judging and ruling are closely linked is because both are executing rules. A judge (qadi) however, can only issue a judgment on a dispute and has no power of enforcement. Their authority is only in a court of law, and obedience is limited to the court case. They settle disputes between people and so without a plaintiff bringing a case, they have no power to proceed and investigate and resolve problems. The ruler on the other hand does have power of enforcement as he is head of the executive branch, and can issue laws for all his subjects which they must obey anywhere within the state. These differences within the context of an Islamic state can be summarised as[18]:

In early times the kings and rulers were both judges and rulers

This difference between ruling and judging is subtle because in early times the kings, rulers and tribal chiefs would perform both حُكْم (hukm) and قَضاء (qadaa’), issuing decrees relating to disputes between people, and decrees affecting all their subjects. This can be seen in the TV series Ertuğrul where Gümüştekin Bey takes off his Bey hat, and puts on a turban before sitting as a judge.

Taqiuddin an-Nabhani says, “He (the judge) has absolutely no authority of execution, except if he is appointed as judge and ruler. Then, he will execute the rules in his capacity as a ruler and pass judgement in his capacity as a judge. Thus, the reality of the judiciary is different to the reality of ruling.”[19]

The distinction we see in later times between the executive (ruling) and judicial branches of government simply wasn’t there among the Arab tribes including Quraysh at the time of revelation. The tribal leader performed both ruling and judicial duties. As an example, Abu Jahl bin Hisham who was one of the leaders of Quraysh, was given the title Abū al-Ḥakam (أبو الحكم)[20], as he was considered a man of deep wisdom, cunning and understanding by the elders of Quraysh for which they trusted his opinion and relied on him as an elite member of their ruling assembly – Dār an-Nadwa.

In the early years of the Islamic State in Madinah, the Prophet ﷺ as head of state combined both executive and judicial functions. Sayed Khatab says, “According to al-Maraghi, ‘The Prophet was a leader and a judge by virtue of his divine appointment. Hence he possessed complete judicial power.’”[21] Later when the state expanded to new regions, the Prophet ﷺ appointed separate judges for them, so he ﷺ appointed Ali bin Abi Talib and Mu’aadh ibn Jabal as judges to Yemen.[22] Under Umar ibn Al-Khattab the judiciary expanded greatly as the infrastructure of the state was put in place.

An extract from the book History of the Islamic State’s Institutions – Volume 1

Therefore, the use of the term hukm among the Arabs would contain the meaning of judging and ruling, because as mentioned the separation between the two which occurred later wasn’t there in early times.

Let us now look at how the mufasireen interpreted the word hukm in the Qur’an.

King Dawud and King Sulayman (as) both judged and ruled

Some prophets of Bani Israil were also rulers. The Messenger of Allah ﷺ said, “The prophets ruled over the children of Israel, whenever a prophet died another prophet succeeded him, but there will be no prophet after me.”[23] Dawud (as) and his son Sulayman (as) were both great kings who ruled by the sharia of their times, and they performed hukm which meant ruling and judging. Allah (Most High) says,

‏وَدَاوُۥدَ وَسُلَيْمَـٰنَ إِذْ يَحْكُمَانِ فِى ٱلْحَرْثِ إِذْ نَفَشَتْ فِيهِ غَنَمُ ٱلْقَوْمِ وَكُنَّا لِحُكْمِهِمْ شَـٰهِدِينَ

فَفَهَّمْنَـٰهَا سُلَيْمَـٰنَ ۚ وَكُلًّا ءَاتَيْنَا حُكْمًۭا وَعِلْمًۭا

And remember Dawud and Sulayman, when they gave judgement regarding the field into which sheep strayed by night and grazed. We witnessed their judgement and made Sulayman understand the case [better], though We gave sound judgement and knowledge to both of them.[24]

This ayah and the term hukm are related to judiciary.

Allah (Most High) also says,

يَـٰدَاوُۥدُ إِنَّا جَعَلْنَـٰكَ خَلِيفَةًۭ فِى ٱلْأَرْضِ فَٱحْكُم بَيْنَ ٱلنَّاسِ بِٱلْحَقِّ وَلَا تَتَّبِعِ ٱلْهَوَىٰ فَيُضِلَّكَ عَن سَبِيلِ ٱللَّهِ

Oh Dawud! We have made you a khaleefah on the earth, so judge between people with truth and do not follow your own desires, letting them misguide you from the Way of Allah.[25]

The term khaleefah in this ayah is explicitly linked to the term hukm and so the meaning here will include both ruling and judiciary. Imam Ar-Razi in his Tafseer says one of the meanings of this ayah is:

إنّا جَعَلْناكَ مالِكًا لِلنّاسِ ونافِذَ الحُكْمِ فِيهِم

“We have made you a ruler (malik) over people and an enforcer of judgment (hukm) among them.”[26]

A contemporary interpretation of this ayah is from Sayed Khatab who says, “The word hukm here is a verb that commands the leader to ‘Judge’ and to ‘Rule’ with justice. These Qur’anic texts indicate that the term hukm has both governmental and legal connotations. Thus, the word hukm is to rule and to judge according to the law. This implies that, if the judge is also the ruler or governor, he is commanded to rule and to judge on the basis of the law. This was the case with the Prophet; he was the judge and the ruler. If the ruler is not the judge (the two positions are separate), the Qur’an commands both the ruler and the judge to observe their duties on the basis of the law. This means that, whether the term hukm is to judge or to rule, the law stands sovereign over the rulers and the judges.”[27]

When you rule, rule with justice

Allah (Most High) says,

إِنَّ ٱللَّهَ يَأْمُرُكُمْ أَن تُؤَدُّوا۟ ٱلْأَمَـٰنَـٰتِ إِلَىٰٓ أَهْلِهَا وَإِذَا حَكَمْتُم بَيْنَ ٱلنَّاسِ أَن تَحْكُمُوا۟ بِٱلْعَدْلِ

“Allah commands you to return to their owners the things you hold on trust and, when you rule between people, to rule with justice.” (An-Nisaa, 58)

Ali ibn Abi Talib (ra) said in reference to this ayah:

حقٌّ على الإمام أن يحكم بما أنزل الله، وأن يؤدِّيَ الأمانة، وإذا فعل ذلك، فحقّ على الناس أن يسمعوا، وأن يُطيعوا، وأن يجيبوا إذا دُعوا

“It is the right of the imam to rule by what Allah has revealed, and to fulfill the trust, and if he does that, then it is the right of people to listen, to obey, and to respond when called upon.”[28]

Shahr said,

نزلت في الأمراء خاصة

“It (this verse) was revealed specifically about the rulers (Ameers).”[29]

Imam Al-Tabari adopts the following position:

قال أبو جعفر: وأولى هذه الأقوال بالصواب في ذلك عندي، قولُ من قال: هو خطاب من الله ولاةَ أمور المسلمين بأداء الأمانة إلى من وَلُوا أمره في فيئهم وحقوقهم، وما ائتمنوا عليه من أمورهم، بالعدل بينهم في القضية، والقَسْم بينهم بالسوية. يدل على ذلك ما وَعظ به الرعية في: ﴿أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الأمْرِ مِنْكُمْ﴾ ، فأمرهم بطاعتهم، وأوصى الرّاعي بالرعية، وأوصى الرعية بالطاعة، كما:-

Abu Jaafar (Tabari) said: The most correct of these sayings in this regard, according to me, is the saying of those who said: It is an address from Allah to the rulers of the affairs of the Muslims to fulfill the trust to those whom they have entrusted with their affairs, their rights, and what they have been entrusted with of their affairs, with justice between them in the legal case, and the division among them equally. This is evidenced by what He preached to the subjects in: “Obey Allah and obey the Messenger and those in authority among you”, so He commanded them to obey them, and enjoined the guardian (to look after) the citizens and enjoined the citizens with obedience (to the guardian).”[30]

A contemporary interpretation of this ayah is from Ayatollah Khomeini who says, “Those addressed here are the people who hold the reigns of affairs in their hands and conduct the business of government – not judges, for the judge exercises only a juridical function, not a governmental one. The judge is a ruler only in a limited sense; the decrees that he issues are exclusively judicial, not executive. Indeed, in forms of government that have emerged in recent centuries, the judges represent one of the three branches of power, the other two being the executive (consisting of the council of ministers) and the legislative or planning body (the assembly or parliament). More generally, the judiciary is one of the branches of government and it fulfils one of the tasks of government. We must therefore conclude that the phrase “when you rule between people” relates to all the affairs of government, and includes both judges and those belonging to the other branches of power.”[31]

How do we know which meaning to use for hukm?

It is well-known that the majority of Arabic words have more than one meaning, and are referred to as mushtarak (homonyms).[32] “Specifying the Mushtarak to one of its meanings requires a Qareenah (indication) that specifies that meaning, and if no Qareenah is found…then it is obligatory to understand it according to all of its meanings.”[33]

With regards to the word حُكْم (hukm), since there is no Qareenah to restrict it to judiciary in the majority of the ayaat of Qur’an, then the meaning will apply equally to both a judge (haakim) in a court of law issuing a hukm (judgement), and a ruler (hakeem)[34] executing a hukm (law) on the people. There are exceptions to this, which is why we refer to the experts in the Qur’an and Arabic language who are the mufasireen. In the hadith the correct usage will be evident from the context as we saw in the letter from the sahabi Abi Bakrah to his son Ubaidullah ibn Abi Bakrah, who took up the post of Qadi in Sijistan. The hadith “The judge should not judge between two people while he is angry,”[35] therefore clearly applies to a Qadi in a court of law.

Conclusion

In summary, the term حُكْم (hukm) means both judging and ruling, and this was its meaning among the Arabs at the time of revelation. The Qur’an itself used hukm to mean ruling and the sahaba interpreted hukm in the Qur’an to mean ruling, as is evident by the saying of Abi ibn Abi Talib mentioned previously.

This difference between ruling and judging is subtle because in early times the kings, rulers and tribal chiefs would perform both حُكْم (hukm) and قَضاء (qadaa’), issuing decrees relating to disputes between people, and decrees affecting all their subjects, and this was the case among the Arab tribes including Quraysh. The separation between the two branches of government which occurred in more modern times simply wasn’t there in the early times.

The modernist attempts to distort the Quranic meanings of Arabic words, in order to say that the Muslim ummah is not obliged to rule by Islam, so we can adopt a secular, democratic, civil state are fundamentally flawed. These modernist arguments first emerged in the late 19^th and early 20^th century in British occupied Egypt, and we are seeing a revival of them nowadays with attempts by the west to reform Islam.

The best safeguard against these attempts is to follow what the Prophet ﷺ ordered us, “I have left two matters with you. As long as you hold to them, you will not go astray. They are the Book of Allah and the Sunnah of His Prophet.”[36] Following this command means learning the Arabic language, so we can access the Qur’an and classical Tafseer books directly without relying on translations or interpretations which may fall outside the acceptable parameters of Quranic Arabic.

Notes

[1] Sayed Khatab, ‘The Power of Sovereignty: The political and ideological philosophy of Sayyid Qutb,’ Routledge, 2009, p.17

[2] Holy Quran Surah An-Nisaa, ayah 58

[3] Holy Quran Surah Saad, ayah 26

[4] Holy Quran Surah al-Ma’ida, ayah 44

[5] Holy Qur’an, Surah al-Ma’ida, ayah 42

[6] Abdelilah Belkeziz, ‘The State in Contemporary Islamic Thought: A  Historical Survey of the Major Muslim Political Thinkers of the Modern Era,’ I.B.Tauris Publishers, 2009, p.249

[7] The grammarians differed on the original roots of every derived Arabic word. Some said they are derived from the masdar (verbal noun) as is mentioned here. Others said they are derived from the verb (three-letter roots).

[8] Muhammad Hassan Hassan Jabal, ‘The etymological dictionary of the words of the Holy Qur’an,’ https://furqan.co/ishtiqaqi/%D8%AD%D9%83%D9%85

[9] Imam Qurtubi, Al-Jami’ li Ahkam al-Qur’an, https://tafsir.app/qurtubi/2/32

[10] Holy Qur’an, Surah Al-An’aam, ayah 2

[11] Holy Qur’an, Surah Al-‘Israa’, ayah 4

[12] Holy Qur’an, Surah Al-Sabaa, ayah 14

[13] Holy Qur’an, Surah Al-Fussilat, ayah 12

[14] Mohammad Akram Chaudhary, (1985) al-Furūq fī al-lughah by Abū Hilāl al-ʻAskarī : a thesaurus for distinctions of meaning between assumed synonyms in Arabic. PhD thesis, University of Glasgow, p.294, https://theses.gla.ac.uk/6922/

[15] Jonathan Brown, ‘Did the Prophet Say It or Not? The Literal, Historical, and Effective Truth of Hadîths in Early Sunnism, University of Washington, p.274 https://www.drjonathanbrown.com/wp-content/uploads/2011/08/Did-the-Prophet-Say-It-or-Not-PDF.pdf

[16] Jami’ at-Tirmidhi 1334, https://sunnah.com/tirmidhi:1334

[17] Sahih al-Bukhari 7158, https://sunnah.com/bukhari:7158

[18] Taqiuddin an-Nabhani, ‘Social System in Islam,’ Al-Khilafah Publications, 3rd Edition, 1990, p.92

[19] Ibid

[20] Ibn Kathir, ‘Al-Sira al-Nabawiyya,’ Vol.2, Garnet Publishing, p.152

[21] Sayed Khatab, Op.cit., p.17

[22] Dr Ali Muhammad As-Sallaabee, ‘The Noble Life of the Prophet ﷺ,’ p.1935; Mishkat al-Masabih 3738, https://sunnah.com/mishkat:3738

[23] Sahih Muslim 1842a, https://sunnah.com/muslim:1842a  ; sahih Bukhari 3455, https://sunnah.com/bukhari:3455

[24] Holy Quran Surah Al-Anbiyya, ayaat 78-79

[25] Holy Quran Surah Saad, ayah 26

[26] Imam Ar-Razi, Tafsir Al-Kabir, https://tafsir.app/alrazi/38/26

[27] Sayed Khatab, Op.cit., p.17

[28] Imam Al-Tabari, Jami’ Al-Bayan, https://tafsir.app/tabari/4/58

[29] Ibid

[30] Ibid

[31] Imam Khomeini, ‘Governance of the Jurist,’ translation of Velayat-e-Faqeeh, Iran Chamber Society, https://www.iranchamber.com/history/rkhomeini/books/velayat_faqeeh.pdf p.52

[32] Mushtarak is being used here in a general sense rather than Al-Mushtarak, so includes all the different types of Arabic meanings such as metaphorical (majaz) and technical (istilahi). Abdul-Qadeem Zallum and Ata Bin Khalil Abu Al-Rashtah refer to the word hukm as a technical term (istilah). Sheikh Ata says, “the term Hukm is not a homonym (mushtarak) in the definitions Qadaa’ (execution) and Sultaan (Authority), but is a linguistic reality (haqeeqah lughawiyah) when it holds the meaning of Qadaa, and is a specified common reality (haqeeqah ‘urfiyah khassah) i.e. istilah in the meanings of Ruling and Authority.”  Since the istilahi term was known and in widespread use at the time of revelation, the word hukm in the Qur’an and Sunnah means judging and ruling so the commands will apply to both. This is similiar to the word wazeer which in its linguistic (lughawiyah) meaning is help and assistance, but in its istilahi meaning it means assisting the ruler i.e. a minister. The Prophet ﷺ said, “Whoever among you is appointed to a position of authority – if Allah wills good for him – He will give him a righteous wazir who will remind him if he forgets and help him if he remembers.” https://sunnah.com/nasai:4204

[33] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ 1995, First Translated English Edition 2016, p.505

[34] A judge is referred to as a حاكم (haakim), but a ruler is referred to as a حكيم (hakeem) because of the frequent rules he executes. حكيم is on the pattern (wazn) of فعيل which is used for exaggeration (mubalagha). This is similar to the attribute of Allah – الرَحِيم (ar-raheem)

[35] Jami’ at-Tirmidhi 1334, https://sunnah.com/tirmidhi:1334

[36] Imam Malik, Muwatta 1623, https://sunnah.com/malik/46/3

1. The Khaleefah being Muslim is a rukn (pillar) of the bay’ah contract
2. First evidence: Those in authority are Muslim
   1. Who are “those in authority” (أُو۟لِى ٱلْأَمْرِ)?
   2. Are “those in authority” (أُو۟لِى ٱلْأَمْرِ) rulers or scholars?
3. Second evidence: Disbelievers cannot have authority over Muslims
4. If “those in authority” are Muslims does this mean there is no obedience to the rulers in non-Muslim countries?
5. Conclusion
6. Notes

The Khilafah (Caliphate) is an ideological Islamic State where the Islamic ‘aqeeda (belief) is the basis of the state, its institutions, systems and societal relationships. There is no separation between religion and politics in Islam as we find in the west. The Khilafah’s strength depends directly on the strength of the ideology within the state. This means those in ruling positions must be people who will work to protect, implement and propagate the deen of Islam, so the state becomes a beacon of high values, and a leading nation in the world. Only someone who believes in the ideology of the state i.e. Islam could do this, which means those in ruling positions must be Muslim.

The Islamic State is no different to any ideological state within the world today. America or Western Europe for example would never accept a Muslim or Communist as President or Prime Minister. The fact that former US President Barack Obama had to repeatedly deny he is a secret Muslim is clear evidence of this. Muhammad Asad says, “One cannot escape the fact that no non-Muslim citizen – however great his personal integrity and his loyalty to the state – could, on psychological grounds, ever be supposed to work wholeheartedly for the ideological objectives of Islam; nor, in fairness, could such a demand be made of him. On the other hand, no ideological organization (whether based on religious or other doctrines) can afford to entrust the direction of its affairs to persons not professing its ideology. Is it, for instance, conceivable that a non-Communist could be given a political key position – not to speak of supreme leadership of the state – in Soviet Russia? Obviously not, and logically so: for as long as communism supplies the ideological basis of the state, only persons who identify themselves unreservedly with its aims can be relied upon to translate those aims into terms of administrative policy.”[1]

The Khaleefah being Muslim is a rukn (pillar) of the bay’ah contract

Al-Mawardi in his famous book Ahkam as-Sultaniyyah ‘The laws of governance’, did not explicitly list being Muslim as a condition for the Khaleefah[2], because it was already understood by his target audience who were scholars, statesmen and rulers of the Islamic State. Even those ulema who mentioned the condition of being Muslim explicitly, such as Imam Ghazali, who says in Mustazhari that “the key conditions of the Imamate are correctness of belief and soundness of religion”,[3] didn’t see any need to expand on this point with sharia evidence, because it was an undisputed fact, known from Islam by necessity that the Imam must be Muslim. Qadi Iyad (d.1149CE) says,

أجمع العلماء علي أن الإمامة لا تنعقد لكافر، وعلى أنه لو طرأ عليه الكفر انعزل، وكذا لو ترك إقامة الصلوات والدعاء إليها

“The scholars have agreed (‘ijma) that the imamate is not valid for a disbeliever, and that if he becomes a disbeliever, he is dismissed, and likewise if he abandons the performance of prayers (salah) and calling to them.”[25]

With the dominance of secularism and non-Islamic systems in the Muslim world today, this condition requires more in-depth discussion, and so some of the sharia evidences regarding the Khaleefah being Muslim will now be presented.

The detailed sharia evidence for the Khaleefah being Muslim is from the Holy Quran.

First evidence: Those in authority are Muslim

Allah (Most High) says,

يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَطِيعُوا۟ ٱللَّهَ وَأَطِيعُوا۟ ٱلرَّسُولَ وَأُو۟لِى ٱلْأَمْرِ مِنكُمْ

“Oh you who believe! Obey Allah and obey the Messenger and those in authority among you.”[4]

Who are “those in authority” (أُو۟لِى ٱلْأَمْرِ)?

The mufassireen (interpreters of the Qur’an) differed on the meaning of “those in authority” (أُو۟لِى ٱلْأَمْرِ) and who they referred to, but they were unanimous that “those in authority” were Muslim. Abdul-Qadeem Zallum says, “The phrase (أُو۟لِى ٱلْأَمْرِ) has always been mentioned in connection with the Muslims, it has not been mentioned in any other context other than to indicate that the people concerned are Muslims. This proves that they must be Muslims. Since the Khaleefah is the person in authority and it is he who appoints people in positions of authority such as his mu’awinoon (assistants), wulah (governors) and ‘ummal (agents), he himself must, therefore, be Muslim.”[5]

The reason “those in authority” are Muslim is because of the next phrase “from among you” (مِنكُمْ), where the second-person masculine plural pronoun كُمْ refers to the beginning of the verse “Oh you who believe” (يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟). Abdul-Qadeem Zallum says, “from among you” (مِنكُمْ) in the verse, clearly indicates that those in authority must be Muslims.”[6]

The word ٱلْأَمْرِ (authority or leadership) in this verse is unrestricted (mutlaq), and applies to all positions of authority (الأمراء) within the Islamic State. Since the Khaleefah is an Ameer (أمير) it applies to him as well. The circumstances of revelation (asbab an-nuzul) of this verse also illustrate this. Ibn ‘Abbas narrates:

‏{‏أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الأَمْرِ مِنْكُمْ‏}‏‏.‏ قَالَ نَزَلَتْ فِي عَبْدِ اللَّهِ بْنِ حُذَافَةَ بْنِ قَيْسِ بْنِ عَدِيٍّ، إِذْ بَعَثَهُ النَّبِيُّ صلى الله عليه وسلم فِي سَرِيَّةٍ

The Verse: “obey Allah and obey the Messenger and those in authority among you.” was revealed in connection with Abdullah bin Hudhafa bin Qais bin ‘Adi’ when the Prophet ﷺ appointed him as the commander of a Sariyya (army detachment).”[12]

Are “those in authority” (أُو۟لِى ٱلْأَمْرِ) rulers or scholars?

As mentioned previously, the mufassireen differed on the meaning of (أُو۟لِى ٱلْأَمْرِ) and who they referred to, but they were unanimous that the (أُو۟لِى ٱلْأَمْرِ) were Muslim. Some of the sahaba like Abu Hurairah said they are the rulers (الأمراء) and others like Ibn Abbas and Mujahid, said they are the people of jurisprudence and knowledge (أهل الفقه والعلم).[13]

The strongest opinion is that the (أُو۟لِى ٱلْأَمْرِ) are the officials of the state because obedience is only to the Imam, and who he appoints to run the affairs of the people. Obedience to the scholars is not obliged unless the officials of the state were also scholars. The scholars are themselves obliged to obey the Imam. Sahl ibn Abdullah Al-Tustari (818-896CE) mentions:

 وَإِذَا نَهَى السُّلْطَانُ الْعَالِمَ أَنْ يُفْتِيَ فَلَيْسَ لَهُ أَنْ يُفْتِيَ

“If the sultan forbade the scholar to give fatwas, then he is not allowed to give fatwas.”[14]

Al-Shawkani (1759–1834CE) says,

وأُولِي الأمْرِ: هُمُ الأئِمَّةُ والسَّلاطِينُ والقُضاةُ وكُلُّ مَن كانَتْ لَهُ وِلايَةٌ شَرْعِيَّةٌ لا وِلايَةٌ طاغُوتِيَّةٌ،

“those in authority” (أُو۟لِى ٱلْأَمْرِ): “They are the Ameers and Sultans and Judges, and any who have a legitimate mandate (sharia wiliyah) not a tyrannical mandate (taghoot wiliyah).”[15]

We can combine both opinions here because the Khaleefahs, governors and army commanders in the time of the sahaba, were not only Ameers but they were mujtahideen (scholars) as well. This continued during the Umayyad Khilafah. Nāfiʿ said concerning the Ummayad Khaleefah Abdul-Malik ibn Marwan, “I have seen Madinah, and there is no youth with more zeal, fiqh, devotion and knowledge of the Book of Allah than ʿAbd al-Malik ibn Marwān.”[16]

Al-Mawardi, from the Shafi’i school stipulates mujtahid as one of the mandatory conditions for the Khaleefah, although it was generally accepted that the Khaleefah could rely on other scholars and adopt their opinions, if he was lacking in this area. Imam Ghazali mentions in Mustazhari, in defense of the young Abbasid Khaleefah Al-Mustazhir (r.1094-1118), who was 16 when he took office, “Why can he not fulfill the aim of knowledge through the best men of his time, just as the aims of power and competence can be fulfilled through others? Most of the problems of the Imamate are jurisprudential and conjectural and may be solved by following the prevailing opinion.”[17]

Second evidence: Disbelievers cannot have authority over Muslims

The second evidence for the Khaleefah being Muslim is again from the Holy Qur’an. Allah (Most High) says:

وَلَن يَجْعَلَ ٱللَّهُ لِلْكَـٰفِرِينَ عَلَى ٱلْمُؤْمِنِينَ سَبِيلًا

“And Allah will never allow the disbelievers any way (of authority) over the believers.”[18]

Abdul-Qadeem Zallum says, “Ruling is the strongest way (sabeel) for the ruler over the ruled, hence the term لَن (never) which means the categorical prohibition of the non-Muslim (Kafir) from taking a post of authority over the Muslims, be it the Khilafah or any other post of authority.”[19]

Many of the mufassireen including Ali ibn Abi Talib and Ibn Abbas, interpreted this verse as being related to the Day of Judgment. Abdur-Razzaq recorded that Yasi’ Al-Kindi said, “A man came to Ali bin Abi Talib and said, ‘What about this ayah, And Allah will never give the disbelievers any way over the believers?’ Ali said, ‘Come closer, come closer. Allah will judge between you on the Day of Resurrection, and He will not grant victory for the disbelievers over the believers.’”[20] Ibn Jurayj recorded that ‘Ata’’ Al-Khurasani said that Ibn Abbas said, “And Allah will never give the disbelievers any way over the believers, will occur on the Day of Resurrection.”[21]

This reason they interpreted it for the Day of Judgment, is because if we apply the verse to the temporal life (dunya), then the pronounced meaning (mantuq) contradicts the reality. Muslims have lived under the authority of the disbelievers during many periods throughout Islamic history. Muslims were still living under the authority of the mushrikeen of Quraysh in Makkah, while the Prophet ﷺ was ruling the Islamic State in Madinah. During the Crusades, after the fall of Spain, under the colonial occupation of Britain and France, and today in the west, Muslims lived and continue to live under the authority of the disbelievers.

If we look to the mafhum[22] (implied meaning) of the verse however, then we can apply it to the dunya by deriving a command (amr) that it is prohibited for a disbeliever to rule over a believer, and hence the ruler must be a Muslim.

Taqiuddin an-Nabhani says, “The existence of the authority of the disbelievers over the believers has surely happened. It happened in Makkah while the Messenger was there. Since the Muslims were under the authority of the disbelievers, and it has existed after the Messenger ﷺ like in Andalusia, where Muslims were under the authority of the disbelievers, and it also exists nowadays, the negation of an authority of the disbelievers over the believers that came in the particle “لَن” “never”, which denotes an eternal negation, is impossible because it has certainly happened. So it is inevitable that it is a negation of a verdict that can be negated, and that is the negation of the permissibility, which means it is forbidden for the disbelievers to have an authority over the believers. This is what the Shari’ah requires because of the truthfulness of the report.”[23]

The reason many mufassireen didn’t look to the mafhum of this verse, is because Muslims having a non-Muslim ruler was never a reality for them, and not even in the minds of the ulema. There was, therefore, no need to look for additional evidence above and beyond what was already established from other ayaat, such as the first one we discussed commanding obedience to “those in authority among you”.

If “those in authority” are Muslims does this mean there is no obedience to the rulers in non-Muslim countries?

The Holy Qur’an clearly states: فَلَا تُطِعِ ٱلْكَـٰفِرِينَ “do not obey the disbelievers”[26] and from the discussion above it’s clear that أُو۟لِى ٱلْأَمْر “those in authority” are Muslim. This may lead someone to the erroneous conclusion that Muslims residing in non-Muslim countries don’t have to obey the law, pay taxes and in extreme cases engage in acts of criminality and violence because in the classical sense they are lands of war (Dar al-Harb) ruled by disbelievers, and disbelievers are not allowed to have authority over Muslims.

In Arabic there is a difference between obedience (الطاعَة) and conformity of will (مُوافِقَة الإِرادَة). Abū Hilāl al-ʻAskarī (d.1005 CE) describes the difference: “Conformity of will may or may not be obedience, especially if it doesn’t directly motivate the action. For example, if you want Zayd to give a dirham in charity without him realizing it, then his action is not considered obedience to you. However, if he knew and did it because of your desire, then he would be obedient. Similarly, if he responded positively to your request and complied, then he would be obedient to you.”[32] Therefore just because someone is ‘obeying’ the law does not mean they are obeying disbelievers.

As Muslims we have one god and one law which is Allah and his noble sharia. Allah has forbidden crimes such as treason, murder, rape, domestic violence, robbery, burglary, fraud, assault etc, so obedience to the sharia automatically means obedience to the law in these areas.

Allah (Most High) orders us to fulfil our contracts and covenants,

يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَوْفُوا۟ بِٱلْعُقُودِ

“O believers! Honour your covenants.”[27]

The definite article (alif-lam) on the word العُقُود (covenants) is mutlaq (unrestricted) which means it includes all types of contracts and covenants, such as citizenship and residency, employment and business and so on.

Al-Alusi comments on this verse, “Some commentators (mufasireen) have chosen to interpret this verse as encompassing all that Allah Almighty has obligated His slaves to do, including religious duties and rulings, and the contracts of trusts, transactions, and the like that they enter into among themselves, which must be fulfilled or are considered religiously good. The command is understood as an unrestricted (Mutlaq) request, whether recommended or obligatory, and it includes avoiding forbidden and disliked things. This is because [the command] is more in line with the generality of the expression, since it [العُقُود] is a plural noun with the definite article (alif-lam), and more complete in terms of the generality of the benefit.”[28]

The Prophet ﷺ said:

وَالْمُسْلِمُونَ عَلَى شُرُوطِهِمْ إِلاَّ شَرْطًا حَرَّمَ حَلاَلاً أَوْ أَحَلَّ حَرَامًا

“Muslims are bound by their conditions, except for a condition that makes halal what is haram or makes haram what is halal.”[29]

Therefore, compliance with the terms and conditions of any contract including a citizenship contract and residency visa which entails obeying the law of the land is in itself obedience to Allah.

The Prophet ﷺ said:

أَدِّ الأَمَانَةَ إِلَى مَنِ ائْتَمَنَكَ وَلاَ تَخُنْ مَنْ خَانَكَ

“Fulfill your trust (Al-Amanah) to those who entrusted you with it, and do not betray those who betrayed you.”[30]

In terms of the limits of obedience, these limits generally apply whether in a caliphate or in a country not ruling by Islam.

The Prophet ﷺ said,

لاَ طَاعَةَ فِي مَعْصِيَةٍ، إِنَّمَا الطَّاعَةُ فِي الْمَعْرُوفِ ‏

“There is no obedience to anyone if it is disobedience to Allah. Verily, obedience is only in good conduct.”[31]

This is a general principle when it comes to following any order or law from anyone. Muslims, non-Muslims, parents, caliphs, rulers, army commanders, company directors etc are not obeyed in sin. If they order treachery, corruption, unlawful killing, torture and oppression, there is no obedience here. Even in the western justice systems “just following orders” is generally rejected establishing the principle that individuals are responsible for their actions. The Nuremberg Trials of Nazi war criminals is the most famous in this regard.

Conclusion

To conclude the Khaleefah must be a Muslim. If the Khaleefah becomes an apostate (murtad), then this breaks a pillar (rukn) of the contract, and the bay’ah becomes void (batil), and the ummah are relieved of their obedience to him. In the first instance this must be proven by the Mahkamat Al-Mazaalim (Court of Unjust Acts), if it was present in the Khilafah, as this is the highest court within the state. If it was a clear-cut decisive issue, or the Mazalim court was abolished, then the “right of revolution” will come in to play. This is something that exists as a final safeguard against the loss of the Islamic system, and in fact exists in all political systems. The American revolution being a stark example of this.

Narrated by Junada bin Abi Umaiya: We entered upon ‘Ubada bin As-Samit while he was sick. We said, “May Allah make you healthy. Will you tell us a Hadith you heard from the Prophet ﷺ and by which Allah may make you benefit?” He said, “The Prophet ﷺ called us and we gave him the bay’ah for Islam, and among the conditions on which he took the bay’ah from us, was that we were to listen and obey both at the time when we were active and at the time when we were tired, and at our difficult time and at our ease and to be obedient to the ruler and give him his right even if he did not give us our right, and not to fight against him unless we noticed him having open Kufr (كُفْرًا بَوَاحًا) for which we would have a proof with us from Allah.”[24]

Notes

[1] Muhammad Asad, ‘The Principles of State and Government in Islam,’ Dar al-Andalus Ltd, Gibraltar, 1985, p.41

[2] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.12

[3] Imam Ghazali, ‘Al-Mustazhari,’ translated by Richard J. McCarthy, Twayne Publishers, 1980, p.276

[4] Holy Qur’an, Surah An-Nisaa, ayah 59

[5] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.56

[6] Ibid, p.118

[12] Sahih al-Bukhari 4584, https://sunnah.com/bukhari:4584

[13] Al-Tabari, https://tafsir.app/tabari/4/59

[14] Al-Qurtubi, ‘Al-Jami’Al-Ahkam Al-Qur’an,’ https://tafsir.app/qurtubi/4/59

[15] Muḥammad al-Shawkānī , ‘Fath ul-Qadeer,’ https://tafsir.app/fath-alqadeer/4/59

[16] Jalal ad-Din as-Suyuti, ‘History of the Umayyad Khaleefahs,’ translated by T.S.Andersson, Ta Ha Publishers, p.30

[17] Imam Ghazali, ‘Al-Mustazhari,’ p.279

[18] Holy Qu’ran, Surah Al-Nisaa’ ayah 141

[19] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ Op.cit., p.55

[20] Tafseer Ibn Kathir, http://m.qtafsir.com/Surah-An-Nisa/Hypocrites-Wait-and-Watch-what—

[21] Ibid

[22] The principle used here is called: Dalaalat ul-Iqtidaa’ (Indication of requirement/necessity). This is where there is a requirement to change the meaning of a text of the Qur’an or Sunnah so its meaning makes sense. Muhammad Hussein Abdullah says, “Dalaalat ul-Iqtidaa’ is the Dalaalah (indication) of the Lafzh upon a matter that its meaning does not stand up except by its Taqdeer (determination). This necessary Taqdeer (determination) could be dictated by the Shar’a or it could be dictated (i.e. made necessary) by the ‘Aql, either due to the Daroorah (necessity) of the Sidq (truthfulness) of the Mutakallim (source of speech/information) or due to the correctness (Sihhah) of the occurrence of the Lafzh (wording) through it.” ‘Al-Waadih Fee Usool ul-Fiqh,’ p.453

[23] Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Vol.3, Op.cit., p.286

[24] Sahih Bukhari 7055, 7056, https://sunnah.com/bukhari:7055

[25] Imam Nawawi, Sharh Sahih Muslim 12/229

[26] Holy Qur’an, Surah Al-Furqan, ayah 52

[27] Holy Qur’an, Surah Al-Ma’ida, ayah 1

[28] Al-Alusi, Ruh Al-Ma’ani, https://tafsir.app/alaloosi/5/1 Note, this is paraphrased not an exact translation.

[29] Jami’ at-Tirmidhi 1352, https://sunnah.com/tirmidhi:1352

[30] Sunan Abi Dawud 3534, https://sunnah.com/abudawud:3534

[31] Ṣaḥīḥ al-Bukhārī 7257, https://sunnah.com/bukhari:7257; Ṣaḥīḥ Muslim 1840, https://sunnah.com/muslim:1840a

[32] Abū Hilāl al-ʻAskarī, al-Furūq fī al-lughah (Thesaurus of Assumed Synonyms in Arabic), https://shamela.ws/book/10414/202

1. Pillars and conditions of the bay’ah contract
2. Contracting Party – Khaleefah
3. Historical Context
4. Al-Mawardi’s Conditions
5. Al-Ghazali’s Conditions
6. Al-Qurtubi’s Conditions
7. Is Quraysh a contractual conditon?
8. Why was the Muslim condition not explicitly mentioned?
9. Capability to rule
10. The contractual pillars
11. The contractual conditions
12. More in this series
13. Notes

The bay’ah is a contract, and so has pillars (arkaan) and conditions (shuroot) like any other Islamic contract. The bay’ah can be described as either saheeh (valid), baatil (invalid) or faasid (defective).

Pillars and conditions of the bay’ah contract

A summary of the pillars and conditions of the bay’ah contract is below.

Contracting Party – Khaleefah

Starting with the Khaleefah, while there is consensus (‘ijma) among the scholars on the pillars (arkan) that someone must possess to take up the post of Khaleefah, there are differences of opinion (ikhtilaaf), on some of the other conditions (shuroot) such as being from Quraysh, a mujtahid (able to perform ijtihad) and brave.

The contractual conditions of the Khaleefah must have a shar’a daleel (divine evidence) from the divine text (Qur’an and Sunnah). Imam Ghazali (1058-1111) says, “Conditions for the Imamate must be proved, and proof is either a text from the Trustee of the Law, or a reasoning about the benefit (maslaha) for which the Imamate is sought. The only text is that about descent from Quraysh. The other conditions are from necessity and needed for the purpose of the Imamate.”[1]

Historical Context

Before discussing the opinions of the classical scholars concerning the contractual conditions of a Khaleefah, we need to understand the time period they lived in. Only then can we begin to appreciate why they emphasised certain conditions over others, and why they legitimised certain abnormal situations, such as the Khaleefah delegating (tafweedh) most of his executive powers to a Turkic (non-Qurayshi) Emir or Sultan.

In the later part of the Abbasid Khilafah during the 10^th, 11^th and 12^th centuries, the state split in to a number of autonomous provinces, with some declaring themselves fully independent as rival Khilafahs, and others as Emirates and Sultanates who gave nominal allegiance to the Abbasid Khaleefah in Baghdad. The Fatimids (Ismailis) in Egypt declared independence and a “Khilafah” in 909CE. This lasted until 1171 when Salahudeen Ayyubi who was a Wazir within the Fatimid State, formally abolished it upon the death of its last Emir Al-Adid. He then gave bay’ah to the Abbasid Khaleefah Al-Mustadi in Baghdad, and Egypt became unified with the Khilafah once again, albeit still semi-independent with the Seljuk Sultan Nur ad-Din Zengi in full control of Egypt and Ash-Sham.

In the East, the Buyids established themselves in Iraq, and central and southern Iran from 934 to 1062, but kept the Abbasid Khaleefah in office. The Khaleefah had limited executive power, with most executive power delegated (tafweedh) to the Buyid Emir. The Buyids were replaced by the Seljuk Sultanate (1037-1194), which spanned across Central Asia, Khorasan, Iran and the Middle East in to Ash-Sham and Anatolia, but the Khaleefah continued to exert limited authority, with most executive powers held by the Sultan. Ibn Khaldun says, “From the time of an-Nâṣir (r. 1180-1225) on, the caliphs were in control of an area smaller than the ring around the moon.”[2]

It’s during this time that the ahkam (rules) related to the Khilafah or Imamah, as it was commonly known, were collated and written down.

Al-Mawardi (d.1058 CE), wrote his famous book Al-Ahkam Al-Sultaniyyah ‘The laws of governance’ during the mid-11^th century, which collated all the rules related to the Islamic governing system, and which became the de-facto go to reference by later scholars. The ulema of the past were not academics who simply wrote textbooks about hypothetical scenarios. They were scholars who wrote practical guides for the Muslims, so they could implement Islam in their lives and societies like the sahaba did. Al-Mawardi was the Chief Judge (Qadi ul-Qudat) for the Abbasid Khaleefahs Al-Qadir and Al-Qa’im, and an ambassador for them in their dealings with the Buyid Emirs. His book was written for leaders, statesmen and politicians to implement.

Al-Mawardi’s Conditions

Al-Mawardi lays down seven conditions for the Imam (Khaleefah), according to the Shafi’i madhhab (school of thought):[3]

Al-Ghazali’s Conditions

Imam Ghazali (d.1111 CE) also from the Shafi’i school mentions ten conditions[4] for the Imam (Khaleefah), six are innate and four are acquired. The six innate conditions are:

The four acquired conditions are:

These conditions are from his book Mustazhiri which was written on the orders of the Abbasid Khaleefah Al-Mustazhir (1094-1118) refuting the legitimacy of the Fatimid “Khilafah” based in Egypt.

Al-Qurtubi’s Conditions

Imam Qurtubi (d.1273 CE) from the Maliki school, mentions eleven conditions for the Imam.[5] These are:

Is Quraysh a contractual conditon?

Although the condition of Quraysh features prominently as a mandatory condition for all the scholars of the period, its importance started to diminish with the rise of the Turkic Sultans. Power and strength became more important conditions for the Khaleefah, with Ibn Jamāʾah (1241-1333) initiating the idea that “the seizure of power itself gave authority”.[6]

Al-Juwayni (1028-1085), who taught at the Nizamiyya madrassa established by the Seljuk wazir Nizam ul-Mulk (1018-1092) mentions, “If there is in an era someone who possesses sufficiency and strength but does not reach independence in his mastery of knowledge, and has dominated by means of his numerous [troops] and helpers and endorsed by the loyalty of powerful people, then he is the ruler and under his power are the affairs of wealth, military and other offices, but it is incumbent upon him to not finalize any matter without the consultation of the ulama.”[7] “The overall purpose of establishing a leader for the Muslim community, al-Juwaynī argues, is not affected by the question of genealogy, whereas to insist upon a leader of Qurashī blood may in fact be detrimental. Preference, al-Juwaynī explains, should be assigned at all times to a scholarly, capable, and pious candidate for caliph over one who is merely Qurashī.”[8]

Ibn Khaldun (1332-1406) says, “The group feeling (asabiyah) of the Fâṭimids and the Ṭâlibids, indeed, that of all the Quraysh, has everywhere disappeared. There are other nations whose group feeling has gained the upper hand over that of the Quraysh.”[9]

These changes in Islamic political thought, laid the foundations for the rise of the Ottoman Khilafah in 1517, and the end of the powerless Qurayshi Abbasid Khaleefahs in Cairo. After the abolition of the Khilafah in 1924 by Mustapha Kemal, Mustafa Sabri, the last Sheikh ul-Islam of the Ottoman Khilafah, wrote to Mustapha Kemal pointing out that he didn’t need to abolish the Khilafah and that “he could have had himself recognized as caliph, following this tradition, and Muslims around the world would have happily acquiesced. He was after all widely hailed as the hero of Islam and the restorer of its glory, and Muslims no longer felt compelled to limit a caliph’s lineage to Quraysh alone as they had with the Abbasid caliphs in Baghdad and Cairo.”[10]

Why was the Muslim condition not explicitly mentioned?

Although Al-Mawardi and Al-Ghazali didn’t explicitly list Muslim as a condition, this was because it was already understood by the target audience of their books i.e. the scholars, statesmen and rulers of the Islamic State. Imam Ghazali mentions elsewhere in Mustazhiri that “the key conditions of the Imamate are correctness of belief and soundness of religion”.[11]

Capability to rule

As for the conditions related to capability like possessing ruling experience, sound limbs and knowledge we can combine them under one general condition called capability (kifayah). This leaves us with seven contractual conditions for the Khaleefah post which are agreed upon by the ulema, and which have decisive qaraa’in (indications) for being an obligation. This is the opinion of Abdul-Qadeem Zallum (1924–2003) who specified seven contractual conditions for the Khaleefah, four of which are pillars (arkaan) and three of which are conditions (shuroot).[12] He says, “The Khaleefah must satisfy seven contractual conditions in order to qualify for the Khilafah post and for the Bay’ah of Khilafah to him to take place legitimately. These seven conditions are necessary. If just one condition is not observed the Khilafah contract would not have taken place and it would be considered null and void.”[13]

The contractual pillars

The contractual pillars (arkan) of the bay’ah contract for the Khaleefah are four:

The contractual conditions

The contractual conditions (shurut) of the bay’ah contract for the Khaleefah are three:

More in this series

Conditions of the Caliph: Why does the Caliph being free actually mean?

Conditions of the Caliph: The Caliph must be sane

Notes

[1] Imam Ghazali, ‘Al-Mustazhari,’ translated by Richard J. McCarthy, Twayne Publishers, 1980, p.278

[2] Ibn Khaldun, ‘The Muqaddimah – An Introduction to History,’ Translated by Franz Rosenthal, Princeton Classics, pp.385

[3] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.12

[4] Imam Ghazali, Op.cit., p.278

[5] al-Qurṭubī, ‘Tafsīr al-Qurṭubī Vol. 1,’ translated by Aisha Bewley, Diwan press, p.156

[6] Mona Hassan, ‘Longing for the Lost Caliphate,’ Princeton University Press, 2016, p.104

[7] Al-Juwayni, Ghiyath al-Umam, 392; Quoted in Ovamir Anjum, ‘Politics, Law, and Community in Islamic Thought,’ Cambridge University Press, 2012, p.123

[8] Mona Hassan, Op.cit., p.104

[9] Ibn Khaldun, Op.cit., p.394

[10] Mona Hassan, Op.cit., p.238

[11] Imam Ghazali, Op.cit., p.276

[12] Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 40, p.124

[13] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.55