The sharia texts related to the bay’ah are ‘aam (general) in their address by use of the relative pronoun مَنْ which translates as whoever.[1] They therefore include the entire Muslim ummah, which is why we say the source of authority in origin is with the ummah. This is seen in numerous ahadith on the bay’ah:
مَنْ كَرِهَ مِنْ أَمِيرِهِ “Whoever sees in his Ameer…”[2]
مَنْ خَرَجَ مِنَ الطَّاعَةِ “Whoever withdraws obedience (to the Ameer)…”[3]
مَنْ بَايَعَ إِمَامًا “Whoever gave bay’ah to an Imam…”[4]
مَنْ مَاتَ وَلَيْسَ فِي عُنُقِهِ بَيْعَةٌ “Whoever dies while having no bay’ah on his neck…”[5]
When it comes to exercising that authority however, a problem arises because the bay’ah is a contract of one-to-millions i.e. between the caliph and the Muslim ummah. This is different to other Islamic contracts which are one-to-one such as buying, selling and marriage. This poses a challenge on how you get the consent of millions of people which is a condition in Islamic contracts.
Historically it was not possible for every Muslim to participate in the election of the Imam, which is why in the rightly guided caliphate of the sahaba, the senior representatives of the people would contract the bay’ah to the caliph. The rest of the Muslims would accept their opinion and rush to pledge their bay’ah to the newly appointed caliph. This was done either directly in the Prophet’s Mosque in Madinah, which was the capital of the state, or indirectly through the governors in the other provinces.[6] The classical scholars called this contracting group the Ahlul hali wal-aqd which literally means the ‘people who loosen and bind’.
Ahmad ibn Hanbal says, “The imamah is not effective except with its conditions […], so if testimony was given to that by the Ahlul hali wal-aqd of the scholars of Islam and their trustworthy people, or the imam took that position for himself and then the Muslims were content with that, it is also effective.”[7]
Al-Mawardi says, “Imamate comes into being in two ways: the first of these is by the election of the Ahlul hali wal-aqd, and the second is by the delegation of the previous Imam.”[8]
This is why Sa‘d al-Taftazani said, “By ummah, he means those who loose and bind (Ahlul hali wal-aqd), namely, those who on the basis of their prestige and rank represent the community. Their leadership is over others, or over all individuals within the community.”[9]
Therefore, in modern times, the ummah elects the Ahlul hali wal-aqd to be their representatives in the Majlis al-Nuwwab (House of Representatives).[10] This House institutionalises the principles of shura and accountability, and will act as an electoral college for the election of the caliph. Dr. Abdul-Karim Zaidan (d.2014) mentions:
أما علاقة أهل العقد والحل بالأمَّة: فهي علاقة النائب والوكيل، فهم يباشرون انتخاب رئيس الدولة ـ الخليفة ـ نيابةً عن الأمة ومن ثَمَّ يعتبر انتخابهم ملزمًا للأمة.
“As for the relationship of the Ahlul hali wal-aqd with the ummah: it is the relationship of the representative (na’ib) and the agent (wakeel). They initiate the election of the head of state – the Caliph – on behalf of the ummah, and therefore their election is considered binding on the ummah.”[11]
Hasan al-Banna (d.1946) concludes a marriage between the ‘people of the authority’ (ahl al-al wa al-aqd) and the representatives of the ummah in the parliament when he writes: “The modern parliamentary system establishes the protocol for arriving at the people of authority (ahl al-al wa al-aqd) through what the constitutional fuqaha put in place of systems of elections and their various means,” with the result that, “this system ought not be declined so long as it leads to the choice of the people of authority (ahl al-al wa al-aqd).”[12]
Who are the Ahlul hali wal-aqd?
The sharia has not defined who the Ahlul hali wal-aqd or people’s representatives are, “it did not appoint them by name or by their persons”[13] as mentioned by Hasan al-Banna. This definition falls under manat ul-hukm (reality the rule is applied to) and will vary throughout the ages.
Hasan al-Banna describes the Ahlul hali wal-aqd as “being composed of three groups:
1) the mujtahidun of the fuqaha whose assertions can be depended upon in fatwas and matters of implementation of the rulings (al-ahkam);
2) the people of experience (ahl al-khibrah) in general matters;
3) whoever has a position as a leader or chief among people…all of these may be correctly subsumed under the rubric of ‘the people of authority’ (ahl al-al wa al-‘aqd).”[14]
Sa‘d al-Taftazani mentions something similar that “they are scholars [ulama], heads of the ummah, and people of distinction.” Imam Nawawi adds in Al-Minhaj: “they are those who are readily able to meet.” His commentator Ramli explicates that this is so since “they determine matters, and other people follow their decisions.”[15]
Are the Ahlul hali wal-aqd elected or appointed to the Majlis?
The reason for the existence of the Ahlul hali wal-aqd is to represent the ummah’s opinions in order for a valid bay’ah to be contracted to the Imam. Dr. Abdul-Karim Zaidan describes this relationship as “the relationship of the representative (na’ib) and the agent (wakeel).”[16]
Prior to the establishment of the Islamic State in Madinah, at the Second Bay’ah of Al-Aqaba, the Messenger of Allah ﷺ did not know all the representatives of the 75 attendees from Al-Aws and Al-Khazraj, so he ﷺ said to them,
“So they brought out from among them twelve leaders, nine from the Khazraj,[17] and three from the Aws.”[18]
Once the state had been established, the Prophet ﷺ came to know who the natural representatives of the Ansar were, and so He ﷺ singled them out for consultation as he knew they represented the opinion of their respective clans. This continued throughout the Rightly Guided Caliphate.
In modern times it is not possible for the leader to know who the representatives are except for a select few such as leaders of groups, ‘ulema and influential businessmen. Therefore, the ummah will elect the Ahlul hali wal-aqd to be members of the Majlis. This is similar to what we see in western countries with elections every 2-4 years, and constituencies drawn up based on population size.
The caliph also reserves the right to appoint certain individuals to the Majlis if there is a shortage of qualified mujtahideen or those with particular expertise in fields such as economy and finance, which are necessary for scrutinising proposed laws sent to the Majlis for debate.
Conditions of the Ahlul hali wal-aqd
Although the primary reason for the Ahlul hali wal-aqd is to contract the caliph, there are other functions they serve such as accounting the caliph and his government, and acting as a ‘legislature-lite’ for laws and policies which fall under the scope of administrative law, which is the bulk of law in modern societies. For this reason, the scholars have placed some extra conditions on the Ahlul hali wal-aqd so that those chosen are competent enough to choose the best person for caliph, and play a role in the shura and accounting process after his election.
It should be noted however, that all that is required in sharia is that the person standing for election is mukallaf (legal responsible i.e. mature and sane), a citizen, and a representative of the people. This is due to the generality of the address “whoever” مَنْ in the ahadith related to the bay’ah as discussed earlier.[19] The representatives can be men, women, Muslims or non-Muslims, although in the context of the bay’ah and the electoral college function of the Majlis, the non-Muslim members can voice their opinion but are not involved in the election. This is because non-Muslim citizens (dhimmi) have a different citizenship contract with the state called dhimma which is discussed elsewhere.
Al-Mawardi places three conditions on the Ahlul hali wal-aqd:
“There are three conditions regarding those eligible to make the choice:
1. That they be just and fulfil all the conditions implied in this quality
2. That they possess a knowledge by which they may comprehend who has a right to the Imamate and that they fulfil all the conditions implied by this knowledge
3. That they possess the insight and wisdom which will lead them to choose the person who is most fitting for the Imamate and who is the most upright and knowledgeable with respect to the management of the offices of administration.”[20]
Imam Al-Rafi’i (d.1226CE) adds that at least one of the Ahlul hali wal-aqd must be a mujtahid. He says, “The basic principle is the stipulation that one of them must be a qualified for ijtihad: a mujtahid.”[21] This is important in modern societies which require new laws and systems of a multitude unheard of previously. This means the caliph will need to appoint mujtahideen to the Majlis if not enough are elected by the ummah.
In addition to some Majlis members being mujtahid, there is a need for those in the Majlis to be knowledgeable in politics and governmental affairs. This is a natural quality for those running for office and shouldn’t require any specific appointments to the Majlis in this regard.
Rashid Rida elaborates on this point, “learning as a stipulated qualification evolves over time. The knowledge that would entitle someone to the imamate in this era differs from the knowledge that was required in previous eras. Certain scholars have said that one of the reasons why the Companions’ preference was to select Abu Bakr as caliph, may God be pleased with him, was that he was the one among them with the greatest knowledge of the Arabs’ lineages, circumstances, and strengths. For this reason, he did not fear what ‘Umar feared when it came to fighting apostates.
Now, the imam and those who make up the body of counselors – Ahlul hali wal-aqd who are the substance of his imamate and the pillars of his government—are required to be versed in the laws of war and peace, major treaties, and conditions in the nations and states neighboring and having political and commercial relationships with Islamic lands: their politics and power, what may be feared and hoped from them, and what is needed to avoid harming them and procure benefit from them.”[22]
Ibn Hajar (d.1449) says something similar when discussing the bay’ah to Uthman bin Affan. “What is apparent from ‘Umar’s conduct regarding his emirs, whom he appointed in the lands, is that he did not only consider the question of who was superior in religion. Rather, he also considered knowledge of politics, along with avoidance of what the revealed law prohibits. Hence, he installed, namely appointed as emir, Mu‘awiyah, Mughirah bin Shu‘bah, and ‘Amr bin al-‘As, although there were others who were superior in the matters of religion and learning, such as Abu al-Darda’ in Syria and Ibn Mas‘ud in Kufah.”[23]
This is the sunnah of the Prophet ﷺ where the tribal leaders and some governors, remained in positions of authority and responsibility after their conversion to Islam, because they already had a personality capable of looking after people’s affairs. Muhammad As-Sallabi says, “Kisra’s[24] viceroy to Yemen was Bādhān ibn Sāsān. During the Prophet’s lifetime, Bādhān embraced Islam, and the Prophet ﷺ recognizing good leadership qualities in Bādhān allowed him to remain governor of Yemen. It was always the case that the Messenger of Allah ﷺ appointed people based on their qualities and on the job performance that could be expected of them. The Prophet ﷺ knew that Bādhān was an experienced leader and that he was well-acquainted with the people of Yemen and with their needs; thus he, and not a person of high-ranking from Makkah or Al-Madeenah, was best suited for the job; hence the Prophet’s decision to allow Bādhān to stay on as governor.”[25]
Notes
[1] A relative pronoun (الاسم الموصول) in Arabic grammar is a pronoun that begins a relative clause and relates it to the main sentence where it is contained. There are terms like “who,” “whose,” “which,” and so on do the same role in the English language. https://kalimah-center.com/arabic-relative-pronouns-and-relative-clauses/
[8] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.12
[9] Muhammad Rashid Rida, ‘The Caliphate or Supreme Imamate,’ Translated by Simon A Wood, Yale University Press, 2024, p.60; Original Arabic: https://shamela.ws/book/9682 p.63
[10] The Majlis al-Nuwwab is not a legislature like we find in the western liberal democracies. It does a legislative function but within a strict framework limiting voting to administrative laws only. Sharia laws will be subject to ijtihad and undertaken by the ‘ulema (scholars) in the Majlis only.
Society is defined as “a large group of people who live together in an organized way, making decisions about how to do things and sharing the work that needs to be done. All the people in a country, or in several similar countries, can be referred to as a society.”[1]
The concept of society (مُجْتَمَع) is intrinsically linked to the discussion of authority, because it’s the authority and government which plays the greatest role in shaping and controlling society. The Ottoman historian Tursun Beg (d.1499) said, “With the pen of scribes, the ruler turns the noble into a wretched, and the wretched into a noble…with the sword of executioners he takes lives. As such he manifests the attributes of the Necessary Existent as if he shares the sultanate with Him except that the ruler of the world is a mortal.”[2]
The source of authority (masdar al-sultah) is based on societal concepts which are in turn based on the Islamic ‘aqeeda which forms a distinct viewpoint of life, and which influences the type of authority that is established. This is why Ibn Al-Qayyum said, “Ponder upon the Hikmah (Wisdom) of Allah عز وجل where He has made people’s kings, leaders, and those of authority over them, of the same kind as their own deeds. It is as if the people’s deeds appeared in the forms of their kings and leaders.”[3]
Society consists of individuals who through their regular interaction with one another form permanent relationships which are based on concepts. These relationships must be managed by a political authority because as Wael Hallaq says, “No society can live without an ordering apparatus that, by necessity, requires some type of discipline.”[4]
As soon as a person steps outside their house and starts to interact with others in whatever form, then societal concepts and the law of the land kicks in to manage these relationships. When going to buy goods you need to use the currency of the country. Shops won’t accept currency which isn’t legal tender. When driving you have to follow the traffic laws. If you decide to drive on the opposite side of the road it will end in a crash and maybe loss of life.
The Prophet ﷺ described the reality of society and these relationships in a famous hadith known as Hadith al-Safina (Hadith of the Ship) where he ﷺ said,
“The example of the person abiding by Allah’s order and restrictions in comparison to those who violate them is like the example of those persons who drew lots for their seats in a boat. Some of them got seats in the upper part, and the others in the lower. When the latter needed water, they had to go up to bring water (and that troubled the others), so they said, ‘Let us make a hole in our share of the ship (and get water) saving those who are above us from troubling them.’ So, if the people in the upper part left the others do what they had suggested, all the people of the ship would be destroyed, but if they prevented them, both parties would be safe.”[5]
These relationships must be managed by an authority which prevents anyone overstepping the limits and threatening society. In the case of the hadith above, the authority (ship’s captain) is the one who would prevent the drilling of a hole in the bottom of the ship.
Ibn Khaldun elaborates on this point. “We have explained before that human beings cannot live and exist except through social organization and co-operation for the purpose of obtaining their food and other necessities of life. When they have organized, necessity requires that they deal with each other and satisfy their needs. Each one will stretch out his hand for whatever he needs and (try simply to) take it, since injustice and aggressiveness are in the animal nature. The others, in turn, will try to prevent him from taking it, motivated by wrathfulness and spite and the strong human reaction when one’s own property is menaced. This causes dissension, which leads to hostilities, and hostilities lead to trouble and bloodshed and loss of life, which lead to the destruction of the species. Now, (the human species) is one of the things the Creator has especially (enjoined us) to preserve.
People, thus, cannot persist in a state of anarchy and without a ruler who keeps them apart. Therefore, they need a person to restrain them. He is their ruler. As is required by human nature, he must be a forceful ruler, one who exercises authority.”[6]
“If the truth were to follow their whims and desires, the heavens and the earth and everyone in them would have been brought to ruin. No indeed! We have given them their Reminder, but they have turned away from it.”[7]
Ummah is the source of authority
In an Islamic society, these concepts which underpin the societal relationships must be based on the Islamic ‘aqeeda (belief), which creates a distinct viewpoint of life. This viewpoint then creates an opinion on which interests are deemed important and necessary, leading the people to establish an authority to fulfil these interests. In the words of Alexander Hamilton, “What is government itself but the greatest of all reflections on human nature?”[8]
Taqiuddin an-Nabhani (d.1977) says,“Authority (sultah) means looking after people’s interests. People’s viewpoint towards actions and things as being interests or not differs according to the difference in their viewpoint about life.
Hence, according to this viewpoint, their viewpoint about the interests is formed, and according to its change their viewpoint about the interests changes.
Therefore, if people were in agreement in their viewpoint about the interests, in a country such as Iraq[9] for instance, the authority would lie in the Ummah; and if there were no foreign power, stronger than her, intellectually and militarily, dominating her, she would in such a country establish someone to run her affairs, i.e. she would establish the authority that manages her interests, or she would keep silent about those who appointed themselves to manage her interests.”[10]
Tocqueville (d.1859) writing in the mid-19th century on democracy in America makes a similar observation. “The inhabitant of the United States attaches himself to the goods of this world as if he were assured of not dying, and he rushes so precipitately to grasp those that pass within his reach that one would say he fears at each instant he will cease to live before he has enjoyed them. He grasps them all but without clutching them, and he soon allows them to escape from his hands so as to run after new enjoyments… Death finally comes, and it stops him before he has grown weary of this useless pursuit of a complete felicity that always flees from him.”[11] He continues, “that their principal affair is to secure by themselves a government that permits them to acquire the goods they desire and that does not prevent them from enjoying in peace those they have acquired.”[12]
Rousseau (d.1778) again made a similar point[13] on the relationship between society and authority. “The first and most important deduction from the principles we have so far laid down is that the general will alone can direct the State according to the object for which it was instituted, i.e., the common good: for if the clashing of particular interests made the establishment of societies necessary, the agreement of these very interests made it possible. The common element in these different interests is what forms the social tie; and, were there no point of agreement between them all, no society could exist. It is solely on the basis of this common interest that every society should be governed.”[14]
These points make it clear that authority in origin is with the ummah, i.e. they are the source of authority (masdar al-sultah).
[2] Hüseyin Yılmaz, ‘Caliphate Redefined: The Mystical Turn in Ottoman Political Thought,’ Princeton University Press, 2018, p.184; Tursun Beg, Tarih- i Ebu’l- Feth, 15
[13] In Rousseau’s model the people are sovereign and therefore the government is there to fulfil their interests, whereas in an Islamic state the sharia is sovereign so the government fulfils the peoples interests within the limits of the sharia. If the people wanted alcohol legalised for Muslims [dhimmi are permitted to drink] then no Islamic government could ever undertake this no matter the demand since the sharia is the ultimate law in the state. This has already been discussed in the article Sovereignty in an Islamic State.
[14] Jean Jacques Rousseau, ‘The Social Contract,’ Translated by G. D. H. Cole, public domain, Book II, p.18
Some may argue that since war is deception then it’s permitted to enter a land with a visa and then renegade on that based on an incorrect understanding of a hadith by Ka’b ibn Malik who reported that when the Prophet ﷺ intended to set out on a military expedition, he would pretend to go somewhere else. The Prophet would say, الْحَرْبُ خُدْعَةٌ “War is deception.”[1]
This misconception shows the importance of understanding the Arabic language and the principles of Islamic jurisprudence (usul al-fiqh) before issuing Islamic edicts. We cannot read a hadith in English and apply the meaning of the word ‘deception’ in English and extract a ruling. There is a clear difference between deception (خُدْعَة) and treachery (خِيانَة) in Islam and even in the English language.
Deception (خُدْعَة) in war is related to battle tactics and all militaries since wars began have used deceptive tactics against each other. During WWII Britain hatched an ingenious plan to deceive the Germans called Operation Mincemeat which used a corpse and false papers to disguise the 1943 Allied invasion of Sicily.
Treachery (خِيانَة) on the other hand in war or at any time is not permitted in Islam.
The hadith “War is deception.”[2] forms part of the laws of war (ahkam al-jihad) so is not applicable to those who reside in a country as citizens or as a musta’min (visa holder and resident), even if that country is perpetuating or supporting horrific crimes against Muslims. Taking up arms against a country and its people that has provided an Aman (security covenant) is treason, and the antithesis of the Islamic sharia related to good conduct.
The scholars have agreed upon the permissibility of deceiving the disbelievers during war when or however the deception is possible to accomplish, unless it relates to the breaching of an ‘Ahd (covenant) or Aman (security), as that is not Halal.”[3]
Indirect speech (التَّعْرِيضِ) is a form of deception if misapplied, such as selling a defective car or attempting to circumvent visa requirements. Al-Nawawi says in relation to this,
“This provides evidence for the permissibility of indirect speech, which is when one utters words whose underlying meaning is correct, but the listener understands something else from them. This is permissible in war and other situations, as long as it does not prevent the fulfillment of a legitimate right.”[4]
Muhammad Al-Yaqoubi says, “Deception and treachery are not permissible for Muslims who live in Western countries, such as the U.S. or Canada, or in the Far East in China or Japan, or anywhere else in the world, such as Brazil, Scandinavia, or Australia. It is impermissible for them to go against their contract. They must respect the law of the lands in which they live, as was the case of the Companions of the Prophet ﷺ when they migrated from Mecca to Abyssinia and lived many years under the shade of a just Christian king. They found security with him despite the fact that his people were Christians who opposed their faith.”[5]
Salafi Manhaj says, “There is a big difference in the Divine Legislation between breaking an agreement (treachery) and deception. The first is prohibited according to consensus and as for the second (i.e. deception) it is permitted during warfare by consensus. Deception is not
breaking an agreement rather it is putting something forward and not doing or implementing it, deceiving the combatants. So whoever equalized the two has equalized between what the Divine Legislation has separated and making an analogy (qiyas) between the two is corrupt due to it being an error in its very basis and due to it opposing the Divine Legislation from another aspect, the Qur’anic verses and multiple narrated Prophetic hadeeth about fulfilling trusts.”[6]
What about the incident of Ka’b Ibn Al-Ashraf?
Ka’b Ibn Al-Ashraf, was a member of the Jewish tribe Banu Nadir in Medina and used to incite the Meccans against the Prophet ﷺ so the Prophet ordered him to be killed for treason. Some Jihadi-Salafis say the Prophet’s companions provided Ka’b with a false Aman in order to gain his trust, and then used it to lure him out of his house at night and kill him.
Yasir Qadhi answers this point where it is clear that Ka’b had already broken the treaty of Medina (Sahifa).
“This event is often cited as being controversial, as some criticise it as an extrajudicial assassination. In reality, Kaʿb’s secret alliance and plot against the Prophet was clear grounds for capital punishment, as it was a threat of treason. Moreover, Kaʿb was consistent in inciting hatred towards Allah and His Messenger, going as far as sexually enticing the men of Medina towards the female Companions. The Banū Naḍīr had already violated the Treaty of Medina in the Battle of Sawīq by assisting Abū Sufyān. It is not clear whether Kaʿb physically participated, though it is possible, considering their secret alliance shortly after.
This event is described as extrajudicial because Kaʿb was assassinated without proper proceedings. This requires a broader commentary of the political norms of 7 century Arabia and the danger of imposing contemporary norms onto a society which holds inherently different legal mechanisms and societal understandings. The Prophet’s leadership was religious, political, and legal; therefore, his order was inherently judicial. The Prophet did not order such attacks in Mecca, but in Medina, he was the ruler with executive power, and thus his commands were given with legal authority. Kaʿb’s own wife stated, “You are a man at war”, even though he was not in a physical battle, because it was understood as per the norm of the time that his engagements were of a hostile nature.”[7]
Continuing our series on war and peace in Islam, Islam categorically forbids treachery whether in peace or war. The Caliphate is not a treacherous state despite the attempts to malign Islamic history and the Islamic religion itself by the criminal acts of a tiny proportion of Muslims who contradicted the clear-cut rules of law in Islam.
The Islamic civilisation flourished for over 1300 years with the caliphate and Islamic governance playing a pivotal role in this. This civilisation could not have remained in power for such a long period of time if it was known for treachery, injustice and tyranny. If the Islamic state had conducted itself in the same way as the hated western colonial powers, then its peoples would have rebelled en mass against Islamic rule which never occurred. In fact, all the internal rebellions against the caliphal governments ended up implementing the exact same system albeit with a different ruling family. This is because the rebellion was about “who” should rule, not “what” should be implemented.
Islamic Spain is a stark example of this. Although it formally split from the Abbasid Caliphate in the mid-eighth century, it ruled by Islam, and the Islamic civilisation flourished producing some of the greatest scholars in history. Hugh Kennedy describes this, “Its rulers and administrators were always keenly aware that their land was part of a wider Muslim commonwealth and it was to this commonwealth, rather than to their northern neighbours[1], that they looked for contacts and political ideas.”[2]
International trade and the silk road would have ended if Muslim traders had the reputation of being dishonest and treacherous. In fact, the opposite occurred and these traders built outposts and mosques where they conducted their trade. This then led to the expansion of Islam within those societies. The largest Muslim population in the world today is in Indonesia which converted to Islam over the centuries primarily due to interactions with Arab Muslim traders.
What are Treason and Treachery?
In Arabic there are two words for treason and treachery: الغَدْرة (Al-Ghadrah) and الخِيانَة (Al-Khiyanah). Both are found in the Qur’an and Sunnah, and have similar meanings.
Al-Ghadrah
The root of الغَدْرة (Al-Ghadrah) is غدر which means water that remains behind i.e. a pool or pond (الغَدِير). “The core meaning is a fluid or loose residue from the source or origin that extends, i.e., remains: like those water pools and ponds.”[3] The reason one of its meanings is treachery is because “breaking the covenant (العَهْد) is nothing but abandonment and lack of adherence, as if it were falling behind in keeping up, and in it is also the laxity of negligence and lack of firmness – which is the truthfulness of the promise or oath, or the right of companionship.”[4]
˹Beware of˺ the Day We will blow the mountains away, and you will see the earth laid bare. And We will gather all ˹humankind˺, leaving none behind (نُغَادِرْ).[5]
“Indeed, a flag (liwaa’) will be raised for the traitor (الْغَادِرَ) on the Day of Resurrection, and it will be said: This is the treachery (غَدْرَةُ) of so-and-so, son of so-and-so.”[6]
Al-Khiyanah
The root of الخِيانَة (Al-Khiyanah) is خون which means weakness and deficiency. Even in English it is said, his legs betrayed him and he was unable to walk. “The core meaning is a serious deficiency—whether subtle or subtle—in something internal or in a possession: such as the loss of sharpness of vision, strength in the legs or ropes, the loss of meat and fat from a camel, or the theft of money… Its meaning includes betrayal of covenants (العُهُود) and pacts (المَواثِيق), for failure to fulfil is a deficiency, just as completing the measure is fulfilment.”[7]
“O Allah, I seek refuge in Thee from hunger, for it is an evil bed-fellow; and I seek refuge in Thee from treachery (الخِيانَة), for it is an evil hidden trait.”[9]
Treachery is a major sin in Islam, and it is not tolerated from anyone residing in an Islamic state, Muslim country, non-Muslim country or even on the battlefield with an enemy in an active war (فِعْلاً).
English Law
In English law, “Treason was redefined by the Treason Act 1795 and the principal forms now include:
(1) compassing the death or serious injury of the sovereign or his (or her) spouse or eldest son;
(2) levying war against the sovereign in his (or her) realm, which includes any insurrection against the authority of the sovereign or of the government that goes beyond *riot or *violent disorder;
(3) giving aid or comfort to the sovereign’s enemies in wartime. The penalty for treason (fixed by law) was formerly death but is now life imprisonment.”[10]
Treachery in English law means, “Conduct that assists an enemy. This was defined under the Treachery Act 1940 as an offence relating to World War II, which was punishable by death. There is now, however, no specific crime of treachery: acts of this sort are usually dealt with under the Official Secrets Acts or, in some cases, as treason.”[11]
Due to the widening of the definition of terrorism to a point where even wearing a sticker[12] or saying remaining silent[13] makes you a terrorist, then there is a strong argument for dealing with first degree terrorism as treason. This is how an Islamic State would categorise such vile acts.
Crime
Violating the law of the land and not paying taxes whether in an Islamic state or outside is considered a criminal act and punished according to that country’s penal code. While crime is a serious matter and major sin in Islam with crimes such as murder and ‘terrorism’ being capital crimes in an Islamic state, they are not considered treason because the criminal is still a citizen of the country. This is why a dhimmi (non-Muslim citizen of an Islamic State) does not violate their dhimmah (covenant) by not paying the Jizyah tax, but would violate it if they took up arms against the state and rebelled.
Muhammad Khayr Haykal discusses this point, “abstaining from the Jizyah or refraining from submitting to the Islamic rule which are legitimate justifications for the Muslims to fight the Ahlu-dh-Dhimmah as was understood from the Averse of Al-Jizyah mentioned earlier, does not lead to the breaching of the ‘Ahd if the abstaining was not accompanied by taking up of arms or rebelling against the authority. This is because the Islamic authority by way of force can compel them to fulfil what their contract of Dhimmah committed them to just as it can compel Muslims by force to abide by what they are have been committed to perform or pay.
However, in the case where the Ahlu-dh-Dhimmah take up arms whilst abstaining from that which they have committed to, then the issue has become the Qitaal (fighting) of the Ahlu-dh-Dhimmah against the Muslims and the Islamic authority. In regards to this the Fuqahaa have agreed that their ‘Ahd is breached in this circumstance and case in which they possess Quwwah (power) and Man’ah (prevention) due to their taking up of arms and their fighting against the Sultah (authority).”[14]
The focus of this series with regards to treachery is war and peace. The issue of crime and criminal acts is dealt with elsewhere on the site.
Allah orders Muslims to fulfil their covenants
Allah (Most High) orders Muslims to fulfil their contracts and covenants,
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.”[16]
“Whoever kills a person with whom a covenant has been made (mu’ahid) will not smell the fragrance of Paradise, even though its fragrance can be found from a distance of forty years’ journey.”[17]
Al-Hafiz Ibn Hajar (d.1449) comments on the above hadith:
والمراد به من له عهد مع المسلمين سواء كان بعقد جزية أو هدنة من سلطان أو أمان من مسلم
“This refers to someone who has a covenant (‘ahd) with the Muslims, whether it be through a jizya contract, legal protection (dhimma) from a sultan, or a guarantee of safety (aman) from a Muslim.”[18]
“Muslims are bound by their conditions, except for a condition that makes halal what is haram or makes haram what is halal.”[20]
Therefore, compliance with the terms and conditions of any contract including a citizenship contract and residency visa is obedience to Allah.
What follows are some examples from the life of the Prophet Muhammad ﷺ which prove beyond a shadow of a doubt that treason and treachery have no place in the religion of Islam.
The Battle of Badr – Not allowing two Muslim soldiers to fight
Hudhaifa bin al-Yaman said: “Nothing prevented me from being present at the Battle of Badr except this incident. I came out with my father Husail (to participate in the Battle), but we were caught by the disbelievers of Quraish. They said: “Do you intend to go to Muhammad?” We said: “We do not intend to go to him, but we wish to go back to Medina.” So they took from us a covenant in the name of Allah that we would turn back to Medina and would not fight on the side of Muhammad ﷺ. So, we came to the Messenger of Allah ﷺ and related the incident to him. He ﷺ said: “Both, of you proceed (to Medina); we will fulfil the covenant (‘ahd) made with them and seek Allah’s help against them.”[21]
The Muslim army at the Battle of Badr was severely outnumbered by a ratio of 3:1. Loosing two soldiers was a big material loss yet the Prophet ﷺ fulfilled the ‘ahd. It is a well-established maxim in sharia that any masalaha (benefit) not in accordance with the Islamic texts is null and void.
The Treaty of Hudaibiyah – Refusing asylum to a believer
After the signing of the Treaty of Hudaibiyah in 6 Hijri, Abu Basir, who was one of the Muslims imprisoned in Makkah managed to escape and sought refuge in Dar al-Islam (Medina). The treaty between the Islamic State of Medina and the Quraysh in Makkah, “stipulated that anyone [men] from Quraysh who came to Muhammad without the permission of his guardian would be returned to them, and anyone who came to Quraysh from among those with Muhammad would not be returned to him.”[22]
Quraysh sent a man from Banu Amir ibn Lu’ayy, along with his freed slave (mawla) to Medina seeking the return of Abu Basir. When the delegates arrived in Medina, the Prophet ﷺ handed Abu Basir back to them. This is not obedience to the disbelievers, rather this is obedience to Allah, Who orders compliance with ALL contracts and treaties as long as they do not involve sin and disobedience to Him.
The Messenger of Allah ﷺ said to Abu Basir: “O Abu Basir, we have given these people what you know, and treachery (الغَدْر) is not permissible in our religion. Allah will surely grant you and those with you who are oppressed relief and a way out. So go back to your people.” He said, “O Messenger of Allah, will you return me to the polytheists so they may tempt me away from my religion?” He said, “O Abu Basir, go, for Allah Almighty will surely grant you and those with you who are oppressed relief and a way out.”[23]
Obedience to Allah will undoubtedly lead to good outcomes.
On their way back to Makkah, they stopped at Dhu al-Hulayfah and Abu Basir managed to kill one of his captors – the man from Banu Amir ibn Lu’ayy. The other captor – the freed slave escaped back to Medina. “The freed slave quickly went to the Messenger of Allah ﷺ while he was sitting in the mosque. When the Messenger of ﷺ saw him approaching, he said, “This man has seen something terrifying.” When he reached the Messenger of Allah ﷺ, he said, “Woe to you! What is the matter?” He replied, “Your companion has killed my companion.” By Allah, he had not left when Abu Basir appeared, sword drawn, and stood before the Messenger of Allah ﷺ. He said, “O Messenger of Allah, you have fulfilled your treaty (dhimmah), and Allah has rewarded you. You handed me over to the people, and I have protected myself from being tempted by my religion.” The Messenger of Allah ﷺ said: “Woe to his mother! He is a fierce warrior! If only he had men with him!”[24]
Abu Basir then established a ‘state’ along with 70 Muslims who managed to escape Makkah, at al-Ays, near Dhu al-Marwa, on the coastal route which Quraysh used for their caravans to Syria. This was an independent ‘state’ not under the authority of the Prophet’s ﷺ state in Medina, and not bound by the Treaty of Hudaibiyah. In fact, it was forbidden for this ‘state’ to join Medina due to the treaty. Abu Basir’s ‘state’ then began attacking the caravans of Quraysh and seizing their wealth causing huge damage to the Makkan economy. It was then that Quraysh wrote to the Prophet ﷺ pleading with him to take them back to Medina so they were under his authority which he ﷺ did.[25] As with any contract or treaty, they can be renegotiated on terms acceptable to both sides.
Ibn Qudamah al-Hanbali (d.1223CE) comments on this story saying, “It is therefore permitted for the one who had embraced from the disbelievers to isolate themselves in an area and to fight whom they can from the disbelievers, take their wealth (or property) and to not be included within the treaty. Then if the Imam was to join them to him with the permission of the disbelievers, they would then enter under the terms of the treaty and killing the disbelievers and taking their wealth would become Haram upon them.”[26]
Something similar occurred when pirates from the North African Barbary States (Algiers, Tripoli, Tunis) began attacking American and European ships in the Mediterranean. After a series of wars America signed a series of treaties with these states to bring the pirates under their control. A ‘Commerce and navigation’ treaty was also signed with the Ottoman Caliphate in 1830 to protect American ships in Ottoman waters.[27]
In 1899 Secretary of State John Hay approached Oscar Straus, the American ambassador to the Ottoman Caliphate to try and convince Abdul-Hamid II to use his religious authority as caliph to discourage Filipino Muslims from joining the rebellion against American rule. Abdul-Hamid II drafted a letter addressed specifically to the Moro Muslims of the Sulu Sultanate, directing them to submit to American authority and abstain from hostilities against U.S. forces which they did.[28]
Expedition to Khaybar – The Black Shepherd
In the year 7 Hijri, after the signing of the Treaty of Hudaibiyah, the Prophet ﷺ was able to finally deal with the treachery and danger of the belligerent tribes based in Khaybar. These tribes had been signatories to the Treaty of Medina (Sahifa) but had reneged on it time and time again.
“After the Prophet secured peace with the Quraysh, he could finally turn his attention inwards once more. A group of the previously expelled Banū Qaynuqāʿ and Banū Naḍīr still posed a constant and immediate threat that the Prophet could not address until now. After their expulsion, they relocated to Khaybar and organised the biggest army Medina ever faced in the Battle of the Trench. The Treaty of Ḥudaybiyyah allowed the Prophet to organise his efforts towards these belligerent tribes.
Immediately after Ḥudaybiyyah, the Prophet launched a pre-emptive attack on Khaybar before they had a chance to organise another attack on Medina. The Muslims marched continuously from Medina to Khaybar and camped overnight out of sight. They marched towards Khaybar after Fajr, catching them completely off-guard. Khaybar was comprised of a number of fortresses even more magnificent and imposing in stature than those of Medina. The vast fortresses were spread across acres of lush farmland. As they approached the first fortress, the inhabitants were leaving with their farming tools, preparing for the day’s work. When they saw the Muslim army, they scrambled back inside the fortress, yelling, “Muhammad and his army have arrived!” Despite launching a surprise attack, their response clearly indicates a level of expectation; a retaliation for their prior aggressions was foreseen.”[29]
There was a black Abyssinian slave who lived in Khaybar caring for sheep belonging to his master. When he saw that the people of Khaybar were taking up their weapons, he asked them, “What are you going to do?” They replied, “We are going to do battle with that man who claims to be a prophet.”
This reference to a prophet had an impact upon him and he took his sheep and approached the Messenger of Allah ﷺ, asking him, “To what do you invite?” He replied, “I invite you to Islam, to hear witness that there is no god but Allah, that I am the Messenger of Allah, and that you will not worship any other than Allah.” The slave then asked, “What will I get if I hear witness to that and believe in Allah?” The Messenger of Allah ﷺ replied, “Paradise, if you die believing that.”
The slave accepted Islam and said, “Prophet of Allah, these sheep I have is my trust (amanah).” The Messenger of Allah ﷺ said, “Drive them out of our camp and throw pebbles at them, for Allah will fulfill your amanah.” He did so, and the sheep returned to their Jewish master, who realized that his slave had accepted Islam. The Messenger of Allah ﷺ then arose and addressed his men.[30]
Even though Khaybar was Dar al-Harb Fi’lan (Land of active war), the Prophet ﷺ still followed the laws of war jus in bello and ordered the Muslims to fulfil their trusts. If the sheep had come to them after they had conquered the town through force, then they would be considered ghanima (war booty).[31] In the end Khaybar surrendered and made a treaty to give 50% of their produce to the Islamic state. The Muslims therefore did gain a huge amount of wealth but through halal means i.e. treaty and not through breaking a trust.
The Messenger of Allah ﷺ clearly outlined the stages of war in a famous hadith narrated by Buraida. “Fight in the name of Allah in the cause of Allah. Fight those who disbelieve in Allah. Fight, but do not commit treason (Ghadrah), do not mutilate, and do not kill a child. And when you meet your enemy from among the polytheists, call them to three courses of action. If they respond, accept them and refrain from attacking them.
1- Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their lands to the land of the Muhajireen and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajireen.
If they refuse to migrate, tell them that they will have the status of Bedouin (أَعْراب) Muslims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the ghanima or Fai’ (spoils without fighting) except when they actually fight with the Muslims (against the disbelievers).
2- If they refuse to accept Islam, demand from them the Jizya. If they agree to pay, accept it from them and hold off your hands.
3- If they refuse to pay the tax, seek Allah’s help and fight them.”[32]
These were followed during the battle of Khaybar with the leaders agreeing to point two i.e. to pay jizya.
The illegal occupation of Samarkand
Qutaybah bin Muslim was the Amir (Campaign Commander) in Central Asia who conquered Samarkand in the year 711-12CE under the Umayyad Caliph Al-Walid.[33] Instead of following the methodology of the Prophet ﷺ outlined above, he simply invaded the city and turned it in to a garrison town.
When Umar bin Abdul-Aziz became the caliph, the people of Samarkand saw an opportunity to gain justice so they met with the Central Asian governor Sulayman Abi as-Sarri and said, “Qutaybah has betrayed and wronged us by seizing our town. Allah has shown us justice and equity, therefore if we are allowed, we would like to send a delegation to the Amir al-Mu’minin to complain of our injustices and if we are within our rights, he will address our needs.”
Sulayman granted their request and a delegation of men represented their case to the Caliph. After speaking with the delegation Umar bin Abdul-Aziz wrote to Sulayman saying, “Indeed, the people of Samarkand have come complaining to me of the injustices inflicted upon them, stating that Qutaybah has unjustifiably stationed his army in the town in their midst and forced them to leave. Therefore, when my letter reaches you, appoint a tribunal to judge and settle the dispute between Qutaybah and the people of Samarkand. If the judgment of the tribunal goes against the army chief and his men are asked to vacate, they must do so at once and the people may return to the way they were before Qutaybah appeared on the scene.”
Sulayman appointed Jumay’a bin Hadir as the Qadi Mazalim over the case. Jumay’a ruled in favour of the people of Samarkand saying, “Sudden attack on them without warning was unlawful,” and the Muslim army had to withdraw. After witnessing this justice, Samarkand and neighbouring Soghd decided against fighting a war with the Muslims and agreed to live side by side with them under Islamic rule. Their influential scholars said, “We have mixed and lived side by side with those people. They are peaceful with us and we are with them. Should you decide that we are to return to war, it would be futile and we do not know whom the victory will belong to. We would only be bringing hostility upon ourselves.”[34]
The Islamic State is not a utopia, and there is no doubt that incidents will occur in an Islamic society which are not in accordance with sharia law. This has been true throughout Islamic history, starting with the first Islamic state established and ruled by the Prophet Muhammad ﷺ.
What is important is to have effective state mechanisms in place to deal with any grievances (Al-Maẓālim المَظالِم) that may occur, and provide adequate redress and compensation to the victims, so they feel they have received justice.
[13] Under Schedule 7 of the Terrorism Act 2000, individuals stopped at UK borders have no right to remain silent. You are legally required to answer questions, produce documents, and provide passwords for electronic devices. Refusal to comply is a criminal offence, punishable by up to three months in prison or a fine.
[14] Dr. Muhammad Khayr Haykal, ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya’
Continuing our series on war and peace in Islam, the seeking of shahada (martyrdom) is something all Muslims would love to achieve due to the high status and honour given to the shaheed in the next life. However, martyrdom has conditions in order to be accepted. Attempting to gain martyrdom through disobeying Allah such as by treachery, would negate the honour of receiving the shahada.
“Verily, actions are only [accepted] by intentions.”[1]
“This is one of the most comprehensive hadith of the Prophet ﷺ. It touches upon almost every deed of Islam…Imam AbuDawood stated that this hadith is one-half of Islam; that is, Islam compriseswhat is apparent, the deeds of Islam, as well as what is not apparent, theintention behind the deeds.
Al-Shafi’i also said that it encompasses half ofknowledge, meaning that the religion concerns both what is external and whatis internal. The deeds are the external aspect and the intention behind them isthe internal aspect.”[2]
Rumi (d.1273CE) narrates a famous story of Ali ibn Abi Talib where he stopped fighting an enemy soldier because he wanted to purify his niyyah (intention), in order to ensure he was fighting for the right reasons and not out of revenge. “Ali, the “Lion of Allah,” was once engaged in conflict with a Magian chief, and in the midst of the struggle the Magian spat in his face. ‘Ali, instead of taking vengeance on him, at once dropped his sword, to the Magian’s great astonishment. On his inquiring the reason of such forbearance, ‘Ali informed him that the “Lion of Allah” did not destroy life for the satisfaction of his own vengeance, but simply to carry out Allah’s will, and that whenever he saw just cause, he held his hand even in the midst of the strife, and spared the foe.”[3]
The intention behind any action is hidden in someone’s heart (mind) and so may not be obvious even to the person performing the action. This is why constant vigilance and self-accountability is required especially when it comes to mu’amilat (dealings with people) to ensure someone doesn’t act upon hate and revenge leading to injustice. We need to be careful that grievances and life’s test such as losing a job, home, relative, failed marriage, illness etc which are all part of the dunya (worldly life) and affect believers and disbelievers alike, do not become a catalyst for undertaking un-Islamic and ultimately treasonous acts.
And when you judge between people, judge with justice.[5]
Ibn Ashur (d.1973) comments on this verse, “Some laws were established out of anger and selfishness, and thus contained egregious errors, such as the laws imposed by revolutionaries in anger against those who had ruled before them, and some laws stemmed from fantasies and illusions, like the laws of the pre-Islamic era and nations deeply rooted in paganism.
We find that the laws enacted by wise men are more effective in achieving the benefits of justice, such as the laws of Athens and Sparta. The highest laws are the divine laws because they are suitable for the circumstances of those for whom they were legislated. The greatest of these is the Islamic law (sharia) because it is based on pure or preponderant interests, and it disregards the whims of nations and misguided customs, for it does not concern itself with selfishness and desires, nor with corrupt customs. It is not built on the interests of a particular tribe or country, but rather on the interests of humankind, its improvement, and its guidance to the right path.”[6]
The endless wars in pre-Islamic Arabia over the most trivial of matters, are examples of what happens when hate becomes deeply embedded in a society. In modern times Nazi Germany, the holocaust, ethnic cleansing in Bosnia, and the genocide in Gaza are all examples of pathological hate which ends in the deaths of millions.
No martyrdom without correct intention and action
There is no doubt that the martyr (shaheed) in Islam is one of the highest statuses in the next life. The reward of a shaheed is immense and seeking martyrdom is what drove the Islamic armies to achieve incredible almost miraculous victories. How do you fight an army that loves death more than the enemy loves life?!
“The shaheed has six privileges with Allah: he is forgiven with the first flow of blood, he sees his place in Paradise, he is protected from the torment of the grave, he is safe from the Great Terror, a crown of dignity is placed on his head, a single ruby of which is better than the world and all that is in it, he is married to seventy-two wives from among the houris, and he intercedes for seventy of his relatives.”[7]
Martyrdom (shahada) is a very seductive goal and is marketed by takfiri groups as a shortcut to jannah (paradise). Who wouldn’t want to press a button and end up in eternal bliss?! There are conditions however, which must be met for someone to receive the honour and reward of martyrdom. Intention (niyyah) plays a pivotal role here. If someone believes shahada is a way out of life’s problem by undertaking “suicide by cop” through treacherous actions, then they are sadly mistaken as the next three hadith highlight. Of course, a soldier dying in a legitimate war, abiding by the regulations of the sharia will achieve the high status of shahada by the permission of Allah, but the discussion here is addressing the issue of treason and treachery of those who believe they are undertaking lawful acts.
“The first person to be judged on the Day of Resurrection will be a man who was martyred. He will be brought forth, and Allah will remind him of His favors, and he will acknowledge them. Allah will say, “What did you do with them?” He will reply, “I fought for Your sake until I was martyred.” Allah will say, “You have lied. You fought so that it would be said, ‘He is brave.’ And it has been said.” Then he will be ordered to be dragged on his face until he is thrown into the Fire.”[8]
Disobeying the commander at Khaybar
The Prophet ﷺ during the military expedition to Khaybar, forbade fighting on a particular day and said:
لَا تَحِلُّ الْجَنَّةُ لِعَاصٍ
“Jannah (paradise) is not halal for the one who disobeys.”[9]
In relation to this hadith, the following was stated in ‘As-Siyar Al-Kabeer’: “He ﷺ commanded that it [this command] be proclaimed on the day of Khaybar when he forbade them from fighting, and it was said to him ﷺ: “So-and-so has been martyred.” So he ﷺ said: “Did I not forbid fighting after that?” They said: “Yes.” So he said:
لَا تَحِلُّ الْجَنَّةُ لِعَاصٍ
“Jannah is not halal for the one who disobeys.”[10]
So, despite the rank of martyrdom, he said what he said about him to clarify that disobedience in matters where the error of the Amir is not certain, is not permissible under any circumstances.”[11]
The context of this discussion is obedience to the army commander in carrying out his orders even if the soldier disagrees with them. This is unless a clear-cut violation of the sharia rules has been ordered such as torture, rape and deliberate targeting of civilians.
The man who stole from the state funds (war booty)
It is narrated that Abu Hurayrah said: “We were with the Messenger of Allah in the year of Khaibar, and we did not get any spoils of war (ghaneema) except for wealth, goods and clothes. Then a man from Banu Ad-Dubaib, who was called Rifa’ah bin Zaid, gave the Messenger of Allah a black slave who was called Mid’am. The Messenger of Allah set out for Wadi Al-Qura. When we were in Wadi Al-Qura, while Mid’am was unloading the luggage of the Messenger of Allah, an arrow came and killed him. The people said: “Congratulations! You will go to Paradise,” but the Messenger of Allah ﷺ said: “No, by the One in Whose hand is my soul! The cloak that he took from the spoils of war on the Day of Khaibar is burning him with fire.” When the people heard that, a man brought one or two shoelaces to the Messenger of Allah and the Messenger of Allah ﷺ said: “One or two shoelaces of fire.””[12]
We can extrapolate from all of these incidents that attempting to gain martyrdom through disobeying Allah such as by treachery, would negate the honour of receiving the shahada.
[2] Jamaal al-Din M. Zarabozo, ‘Commentary on the Forty Hadith of al-Nawawi,’ Vol.1, p.98
[3] Masnavi i Ma’navi, Teachings of Rumi The Spiritual Couplets of Maulana Jalalu-’d-din Muhammad i Rumi Translated and abridged by E.H. Whinfield, M.A. Omphaloskepsis, 2001, Story XVI, p.83
Continuing our series on war and peace in Islam, the justifications Jihadi-Salafi groups give for their attacks that breach well-established Islamic rules on covenants and treaties are based on their issuing of erroneous Islamic edicts (fatawa).
Ijtihad (اِجْتِهاد) is derived from the root word Jahada (جهد). Linguistically, it means striving or self-exertion in any activity, which entails a measure of hardship. The great scholars of Usul such as Abu al-Husayn Ali otherwise known as Al-Amidi (d.631 AH) and Mohammad bin Ali Al-Shawkani (d.1255 AH) defined it as, “the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shariah from their detailed evidence in the sources.”[1]
Extracting Islamic edicts (fatawa) from the Qur’an and Sunnah via ijtihad is only for those who are qualified. If someone is seriously ill, they will go to a doctor to diagnose their illness and prescribe medicine. If they went to an unqualified person, then they may end up losing their life due to being misdiagnosed and prescribed the wrong medicine. The Messenger of Allah ﷺ said,
“Whoever practices medicine without any prior knowledge of medicine will be held liable.”[2]
This is similar to issuing fatawa. If an unqualified person issues an erroneous fatwa related to social interactions (mu’amilat) such as family, politics and war then it can lead to disastrous consequences for society. The death and destruction left in the wake of the attacks by Jihadi-Salafi groups like ISIS and Al-Qaeda is a stark example of this.
The Prophet ﷺ severely rebuked some of the sahaba who gave an incorrect fatwa which led to someone’s death. Jabir narrated that “We went out on a journey, and a stone struck one of our men, injuring his head. Then he had a wet dream and asked his companions, ‘Do you find any dispensation (rukhsa) for me to perform tayammum?’[3] They said, ‘We do not find any dispensation for you, as you have access to water.’ He performed ghusl (bath) and died. When we came to the Prophet ﷺ he was informed of this and he said, ‘They killed him, may Allah kill them! Why did they not ask when they did not know? For the cure for ignorance is asking. It would have been sufficient for him to perform tayammum and squeeze out a bandage (or to bandage. Musa was uncertain) He should have placed a cloth over his wound, then wiped over it and washed the rest of his body.’”[4]
This is why the Prophet ﷺ said,
أَجرَؤكم على الفُتْيا أجْرؤُكم على النَّارِ
“Your taking of a risk with issuing Fatawa is like taking a risk with the hellfire.”[5]
Marc Sageman says, “People assume that the jihadis are well educated in religion. That is not the case. A few religious scholars exist in their midst, but theirs is a very untraditional interpretation of the scriptures. The majority of terrorists come to their religious beliefs through self-instruction. Their religious understanding is limited; they know about as much as any secular person, which is to say, very little. Often, they have not started reading the Quran seriously until they are in prison, because then it is provided to them and they have lots of time to read it.”[6]
Muhammad Al-Yaqoubi says, “Saudi Arabia strictly follows the Hanbali school, so its Salafism is limited to theology while recognizing the other three schools of law. ISIS, on the other hand, rebels against all of the schools of Islamic law, and against most Salafi interpretations, while adhering to Ibn Taymiyya in his theological views. This lack of an authority in legislation, coupled with the absence of a major reference or manual of law in the hands of ISIS’ judges and Shariah personnel, has led almost every fighter placed in charge of a situation to present a contrived legal ruling based on his own understanding of the Quran and Tradition, most often selecting the quotes which seemingly validate their vengeful ill will. The brutality, savagery, and barbarity we have witnessed from this group is a testimony to the inherent danger of giving ignorant fanatics the authority to do the job of the great independent legal authorities (mujtahids), a status which even great figures such as al-Ghazali and al-Nawawi could not claim.”[7]
Misunderstanding the reality causes erroneous fatawa
Misunderstanding the reality (manat) of an issue is the main area where most of these Jihadi-Salafi fatawa break down.
Citizenship and residency visas are valid Islamic Contracts
Citizenship and residency visas are the modern equivalents of the classical sharia concept of Al-Amān (الأَمان) which are security covenants. Fulfilling security covenants is a well-established rule, that was codified by the imams of the classical schools of thought and applied throughout Islamic history. In the Qur’an, Allah (Most High) orders Muslims to fulfil their contracts and covenants:
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.
Some of those born into citizenship as opposed to naturalised citizens, or those on residency visas may say “I didn’t sign or say any pledge!” Compliance with the pledge for those born in the country is known through custom (‘urf), so in reality both types of citizens are bound by the pledge and oath. This is based on the well-known sharia maxim:
المعروف عرفا كالمشروط شرطا
What is known by custom (‘urf) is like what is stipulated by a condition (shart).[9]
Muhammad Hassan Abdul Ghaffar, explains the meaning of this maxim. “If a prevailing custom is agreed upon by people regarding something, it is considered in Islamic law (sharia) as a condition (shart). It is mentioned in some traditions that Muslims are bound by their conditions. These conditions are qualified by the Prophet’s ﷺ saying: إِلاَّ شَرْطًا حَرَّمَ حَلاَلاً أَوْ أَحَلَّ حَرَامًا “Except for a condition that makes halal what is haram or makes haram what is halal.”[10] This is because the Prophet ﷺ said, every condition that is not in the Book of Allah is invalid, even if there are a hundred such conditions.[11] He ﷺ said,
“Whoever stipulates a condition that is not in the Book of Allah, it is not valid for him, even if he stipulates a hundred conditions.”[12]
“Therefore, if people agree upon something or if it is a custom among them, it is considered a condition, and this condition must be fulfilled.”[13]
Imam Al-Shafi’i (d.820CE) said in Al-Umm:
فإن أمنوه أو بعضهم وأدخلوه في بلادهم بمعروف عندهم في أمانهم إياه وهم قادرون عليه فإنه يلزمه لهم أن يكونوا منه آمنين وإن لم يقل ذلك
“If they [disbelievers] grant him or some of them security and admit him into their land with a guarantee of safety, and they are capable of providing it, then it is incumbent upon them to be safe from him, even if they do not explicitly state this.”[14]
Former Al-Qaeda ideologue Sayyed Imam Al-Sharif aka Dr. Fadl criticised the 9/11 attacks in a pamphlet written while in an Egyptian prison and serialised in two Arab newspapers in 2007. Specifically, Dr. Fadl accused the hijackers of violating the terms of their visa, which he interpreted it as a form of Amān.[15]
In 2012, a former member of al-Qaeda’ s Shura Council Mahfouz Ould Al-Walid, stated in an interview with al-Jazeera:
“such operations [9/11] violate the pact we made. Anybody who enters the U.S. uses an entrance visa, which we consider, from a religious perspective, to be a binding treaty of protection. Anybody who is protected by the enemy should not harm the enemy. He is prohibited from breaching this treaty of protection.”[16]
Bin Laden and the former Al-Qaeda leader al-Zawahiri disagreed, however, and distinguished between acquired citizenship – which involves taking an oath (‘ahd) – and a visa or citizenship by birth, which do not. While their interpretations differ, it is testament to the strength of the Islamic obligation to honour an oath that senior Al-Qaeda figures view perceived transgressions with such severity.”[17]
As mentioned, there is no difference contractually between a natural born citizen or naturalised citizen due to custom (‘urf). The purchase of a short-term or long-term residency visa is a valid Islamic contract (‘aqd), consisting of two contracting parties, with offer and acceptance over a subject matter of entering the host’s country.[18]
Analogy of a historical reality with a new reality
A vivid example of this is when one Muslim British citizen Shaykh Abu Safiyyah attempted to travel to Afghanistan to fight with the Taliban against coalition forces which included British forces. This is clear cut treason to fight the armies of your host country, but in his own words he explains his mistake. This is the mark of a true believer who is brave and honest enough to admit their mistakes, and willingly to do this publicly so that others do not fall into the same trap as he did. He says, “coupled with my emotions and stuff, as I said I read a few books, read a few fatawas which were written what 20, 30 years ago and I said you know what this definitely applies to today that’s it. Afghanistan under the Soviet Union is the same now and that was it for me. So what I did was qiyas upon qiyas. I took a fatwa from one time and I applied with qiyas to another time, which is according to the majority of the ‘usuliyyun[19] if not all of them, is completely haram.”[20]
Of course, this does not apply to the Afghans who have lived in those lands for thousands of years, and who are legitimately resisting the invasion and occupation of their country. This is why the Afghan Taliban has never been a proscribed terrorist group under the UK’s Terrorism Act 2000 because they are referred to as insurgents and not terrorists. However, any British resident offering material support or encouraging them to kill British troops in Afghanistan would be considered a terrorist. Islamically such people have also contradicted their Amān (covenant) of citizenship or residency.
It should be noted that this is not an endorsement of the occupation. Legal opposition to the war and lobbying the UK government to withdraw its troops, is perfectly acceptable behaviour both morally and ethically. General Michael Rose in relation to the invasion of Iraq in 2003 said, “the determination of America and Britain to enforce their fundamental view on the world through military action inevitably brings them into armed confrontation with those who follow the path of Islam, for Islam also demands that Muslims defend their faith when it is threatened.”[21]
No one should blindly follow any fatwa
Imam Nawawi in his famous 40 hadith book quotes the following narration:
Wabisah b. Ma’bad said: I came to the Messenger of Allah ﷺ who said to me: “Come close O Wabisah” So I drew closer to him until my knee was touching his knee. He said: “O Wabisah, shall I tell you what you have come to ask me about?” Wabisah said: “Tell me O Messenger of Allah ﷺ.” He said: “You want to question me on the subject of virtue and sin?”“Yes,” I replied, and he went on, “Question your heart. Virtue is that by which the soul enjoys repose and the heart tranquillity. Sin is what introduces trouble into the soul and tumult into man’s bosom, whatever fatwas people may give you.”[22]
This doesn’t mean the intellect (heart) determines what is husn (halal action) and what is qubh (haram action). Rather it means using the mind to research and assess any legal ruling to ensure it conforms to the Islamic texts. For the majority of people this will be by asking those who are knowledgeable and qualified in this field i.e. the scholars. This is even more vital when someone is issuing fatawa which results in treachery and the deaths of thousands of innocents. The Prophet ﷺ said, فَإِنَّمَا شِفَاءُ الْعِيِّ السُّؤَالُ“The cure for ignorance is asking questions.”[23]
Severity of sinning by oppressing the people
The Messenger of Allah ﷺ said, “Do you know who are bankrupt?” They said, “The one without money or goods is bankrupt.” The Prophet said, “Verily, the bankrupt of my nation are those who come on the Day of Resurrection with prayers, fasting, and charity, but also with insults, slander, consuming wealth, shedding blood, and beating others. The oppressed will each be given from his good deeds. If his good deeds run out before justice is fulfilled, then their sins will be cast upon him and he will be thrown into the Hellfire.”[24]
“For you to meet Allah Almighty with seventy sins between you and Allah would be easier on you than to meet Him with a single sin between you and His servants.”[25]
Allah (Most High) is All-Forgiving and All-Merciful and forgives all sins except shirk. The people however are not so forgiving and merciful and want justice for the wrong committed against them. The Prophet ﷺ said, “The first of matters to be judged between people [on qiyamat] will be cases of murder.”[26]
Therefore, great care needs to be taken when undertaking actions related to people, family and society. Fatawas which justify treachery and the breaking of convenants, even if they are based on some tenuous justification from the Islamic texts are to be rejected.
“Your taking of a risk with issuing Fatawa is like taking a risk with the hellfire.”[27]
Notes
[1] Abu Tariq Hilal/Abu Ismael al-Beirawi, ‘Understanding Usul Al-Fiqh,’ Revival Publications, 2007, p.138; Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250.
[5] Musnad of Ad-Daarami 69/1, Kanz ul-‘Amaal 28961. Al-Haafizh said that the Musnad of Ad-Daarami is not of a lesser level than the books of the Sunan and if it was included with the five (books) then it would be preferred to the Sunan of Ibn Maajah
[6] Marc Sageman, ‘Leaderless Jihad Terror Networks in the Twenty-First Century,’ University of Pennsylvania Press, 2008, p.51
[7] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p. xiii
[21] Michael Rose, ‘Washington’s War: From Independence To Iraq,’ Weidenfeld & Nicolson, 2007, p.16
[22] Al-Munziri said: Ahmad has narrated this hadith with a hasan chain. An-Nawawi said: the hadith is hasan and has been reported by Ahmad and ad-Daarimi in both their Musnads.
[27] Musnad of Ad-Daarami 69/1, Kanz ul-‘Amaal 28961. Al-Haafizh said that the Musnad of Ad-Daarami is not of a lesser level than the books of the Sunan and if it was included with the five (books) then it would be preferred to the Sunan of Ibn Maajah
Continuing our series on war and peace in Islam, we discuss the modern phenomenon of Jihadi-Salafism which post 9-11 has dominated the world scene as part of America’s war on terror.
In the latter part of the 20th century, a number of Jihadi-Salafi groups emerged in the Muslim world. These groups were established as a reaction to the deaths and destruction inflicted upon Muslims in a number independence wars starting primarily with the Soviet invasion and occupation of Afghanistan (1979-1989). The resistance to the Soviet invasion was undertaken by Afghan mujahideen who had lived in the land for thousands of years, and who followed the Hanafi-Deobandi school of thought (mathhab). Throughout the 1980s many Arab volunteers who followed Salafism came to assist the Afghans bringing with them money from the Gulf countries who were rich in oil wealth. One of the most famous in this regard is Osama bin Laden whose family to this day are billionaires. The mujahideen were openly supported by America and the CIA who were actively training them as part of their proxy wars against the Soviet Union. U.S. President Ronald Reagan said in 1983, “To watch the courageous Afghan freedom fighters battle modern arsenals with simple hand-held weapons is an inspiration to those who love freedom.”[1]
In 1988, Osama bin Laden along with many of the Arab volunteers who followed Salafism, established Al-Qaeda in Peshawar, Pakistan.
After its invasion of Iraq in 1991, America imposed punishing sanctions on the country which had no effect on Saddam Hussein and his regime, but which devastated the lives of ordinary Iraqis. Madeline Albright, the former US Secretary of State’s infamous statement that the deaths of half a million Iraqi children due to US sanctions were in her words a price worth paying,[2] epitomised everything wrong with American foreign policy at the time and which continues to this day. America’s unwaivable support for Israel no matter how many horrific atrocities it committed against the Muslims, also became a rallying call among the Jihadi-Salafis. It should be noted however, that Salafism never took hold in Palestine and there are no Jihadi-Salafi groups operating there.
It’s within this context that the ‘World Islamic Front’ issued a fatwa (Islamic edict) in 1998 declaring ‘Jihad Against the Jews and Crusaders.’ This fatwa was signed among others by Al-Qaeda’s Osama bin Laden and Ayman al-Zawahiri. Those groups who signed the fatwa are known by various names such as Jihadi-Salafis, Global Jihadists and Salafi Takfiris, even though mainstream Salafism has rejected their ideas and refuted them.
Yasir Qadhi says, “There are, of course, Muslims who prefer not to have the Islamic institution of jihad sullied through an association with terrorist violence that is antithetical to normative jihad or the Pious Predecessors. They consider the phrase ‘Jihadi-Salafism’ to be part of a regime of nefarious propaganda about Islam and terrorism, and would prefer that the groups under discussion are simply called ‘terrorists’ (irhabiyyun), Khārijites, ‘deviants’ (munharifun), or members of ‘the misled sect’ (al-fi’a al-dhalla). However, the term Jihadi-Salafism retains a usefulness and sense of accuracy in describing an aspiration to perform jihad with adherence to Salafi foundations and principles, even if there is an element of imperfection in its use, as is the case with the related term ‘Islamism.’ People who are often deemed to be Jihadi-Salafis, like Abu Muhammad al-Maqdisi, have come to adopt this label for themselves, particularly after 9/11, despite its questionable origins.”[3]
The second invasion of Iraq in 2003 mobilised the Jihadi-Salafi movement once again after their base in Afghanistan was destroyed. Iraq then became the new front for Al-Qaeda under the leadership of Abū Muṣʻab al-Zarqāwī in 2004, but al-Zarqāwī went to such extremes, declaring open war against Shi’ites and massacring civilians, that even Al-Qaeda’s leadership formally rebuked him. After his death in 2006, the Islamic State of Iraq (ISI) was formed under Abu Umar Al-Baghdadi. This group then become the Islamic State of Iraq and Syria (ISIS) in 2013, and in 2014 ISIS declared itself as a caliphate with Al-Baghdadi its ‘caliph’.
Neo-Kharijites
The intolerance and extremism of Jihadi-Salafis and ISIS in particular, and their complete disregard for human life, has its origins in the Khawarij (Kharijites) who broke away from Ali ibn Abi Talib’s army in 37H / 657CE accusing the Caliph of apostasy!
The Khawarij are – in the words of Muhammad Al-Yaqoubi – “a sect which appeared in the first century of Islam and have manifested throughout the centuries since. It deviated from mainstream Islam and was known for killing Muslims under allegations of takfir, which means accusing a Muslim of becoming an apostate. This sect was described in numerous Prophetic Traditions (hadith)…According to the words of Prophet Muhammad ﷺ, the followers of the Khawarij are described as “the dogs of Hell,” and “the worst of both men and animals.”[4] Although the historical sect of the Khawarij does not exist today, we have clear proofs in the Prophetic Traditions that it would emerge at various times throughout the centuries of Islam. The comparison between the crimes and practices of ISIS and the description of the Khawarij mentioned in the words (hadith) of the Prophet proves my conclusion that ISIS is the modern-day Khawarij, implying that its followers are deviators and that fighting them is obligatory.”[5]
Yasir Qadhi says, “Jihadi-Salafis reject the label ‘Kharijites,’ stating that the Kharijites declared people to be disbelievers for committing sins, while they only declare people to be disbelievers for engaging in acts of disbelief. These ‘acts of disbelief’ according to the Jihadis include ruling by a law other than Islamic law; supporting a government that rules by man-made laws; working for a government that implements man-made laws; allying with disbelievers; and not supporting their jihad. They declare people to be disbelievers and apostates based on these issues, thus justifying the targeting and murder of such people in the name of jihad.”[6]
‘Acts of disbelief’ to Jihadi-Salafis are actually major sins to mainstream normative Islam. Therefore, these groups are clearly following in the footsteps of the Kharijites.
One incident in particular from the time of the Caliphate of Ali ibn Abi Talib sums up their fanaticism, and from which we can draw many parallels with their modern equivalents in Iraq and Syria known as ISIS, an offshoot of Al-Qaeda.
In 37H / 657CE while Ali “was preparing to invade Syria, news reached him that the Kharijites had spread corruption throughout the land, shedding blood, blocking roads, and violating what was forbidden. Among those they killed was Abdullah ibn Khabbab, a companion of the Messenger of Allah ﷺ. They captured him and his pregnant wife. They asked him, “Who are you?” He replied, “I am Abdullah ibn Khabbab, a companion of the Messenger of Allah ﷺ. You have terrified me.” They said, “You are safe. Tell us what you heard from your father.” He said: I heard my father say: I heard the Messenger of Allah ﷺ say:
ستكون فتنة القاعد فيها خير من القائم ، والقائم خير من الماشي ، والماشي خير من الساعي
“There will be a tribulation (fitna) in which the one who sits will be better than the one who stands, the one who stands will be better than the one who walks, and the one who walks will be better than the one who runs.”[7]
So they led him by the hand. While he was walking with them, some of them came across a pig belonging to one of the dhimmis (non-Muslim citizens), and one of them struck it with his sword, tearing its skin. Another said to him: “Why did you do this? It belongs to a dhimmi!” So he went to that dhimmi, asked his forgiveness, and appeased him. While he was with them, a date fell from a palm tree, and one of them picked it up and put it in his mouth. Another said to him: “Without permission or payment?” So he spat it out of his mouth.
Despite this, they brought forward Abdullah ibn Khabbab and slaughtered him. Then they came to his wife, and she said: “I am a pregnant woman! Do you not fear Allah, the Exalted and Glorified?” They slaughtered her and ripped open her belly to remove her child. When the people learned of this, they feared that if they went to Syria and engaged in fighting, these people would leave their families and homes behind and do the same. They feared their treachery and advised Ali.”[8]
The Khawarij said to Abdullah “you are safe” and then they killed him, his wife and unborn baby. Treachery, lying, breaking covenants and horrific injustices are the hallmarks of such groups. This is why Ibn Kathir said, “If the Khawarij ever gained power, they would corrupt the entire land, Iraq and Syria. They would not leave alone a boy or a girl or a man or a woman, for in their view the people have become so corrupt that they cannot be reformed but by mass killing.”[9]
The Messenger of Allah ﷺ said, “There will be division and sectarianism in my ummah, and a people will come with beautiful words and evil deeds. They will recite the Quran, but it will not pass beyond their throats. They will leave the religion as an arrow leaves its target, and they will not return to it as the arrow does not return to its bow. They are the worst of the creation. Blessed are those who fight them and are killed by them. They call to the Book of Allah, but they have nothing to do with it. Whoever fights them is better to Allah than them.”[10]
Legitimate Opposition groups are not Kharijites
An important to note, is that corrupt regimes whether today or in the past will always label opposition movements as Khawarij even if they have legitimate demands. This was clearly seen during the Umayyad Caliphate where anyone opposing the hereditary rule of the caliphs was labelled as a Kharijite.
Tabari narrates that in 719CE/100H the Kharijites rebelled in Iraq under the leadership of Bistam. Umar bin Abdul-Aziz wrote to Bistam requesting that he comes and discuss the reasons for his revolt with him. It is reported that Bistam sent two men to debate with Umar. They engaged him in debate, saying, “Tell us about Yazid. Why do you acknowledge him to be your successor as caliph?” ‘Umar replied, “Someone else appointed him as my successor.” They said, “Consider the following case: Suppose you were administering some property that belonged to someone else and you then entrusted it to someone who was unreliable. Do you think that you would have conveyed the trust to its owner?” ‘Umar said, “Give me three days,” and the two men left.
The Banu Marwan were afraid that ‘Umar would confiscate the properties that they owned and administered and that he would renounce Yazid; therefore, they had someone poison his drink. He died less than three days after the two men left him.[11]
Bughāh (rebellion) against just and unjust regimes, based on legitimate or illegitimate causes is a reality that has existed throughout Islamic history. Even in the time of the sahaba a civil war broke out between Mu’awiya, the governor of Ash-Sham (Greater Syria), and Ali ibn Abi Talib who was the caliph, with sahaba on both sides. We don’t label either side as khawārij, because both were acting upon an ijtihad (Islamic opinion), although its well-established that Ali held the correct and legitimate position, and Mu’awiya was incorrect in what he did. Ahmed Al-Dawoody says, “A few jurists confuse the bughāh with the khawārij, but one of the main differences between them is that the bughāh fight only against the ruler and his army, unlike the khawārij, who indiscriminately attack all Muslims, civilians or otherwise.” footnote it.[12]
To err is human, and Allah (Most High) has described in the Qur’an a situation where two groups of Muslims fight each other labelling both as ‘believers’, and the course of action that should be taken to resolve it.
And if two groups of believers fight each other, then make peace between them. But if one of them transgresses against the other, then fight against the transgressing group until they ˹are willing to˺ submit to the rule of Allah. If they do so, then make peace between both ˹groups˺ in all fairness and act justly. Surely Allah loves those who uphold justice.[13]
Jihad-Salafis invent a new jihad
Yasir Qadhi says, “The problems with the JS (Jihadi-Salafis) understanding of jihad in light of normative formulations of Islamic law are many.
Firstly, they elevate it into the greatest act of worship.
Secondly, they view it as a perpetual act that must be carried out all the time, with peace not being an option.
Thirdly, they view it as an individual obligation on every believer.
Fourthly, the killing of citizens and bystanders is deemed by them to be permissible.
Fifthly, it is held that their notion of jihad demarcates between faith and disbelief; hence anybody who supports their jihad is a believer, and all those who oppose them are disbelievers.
Sixthly, the functions of states, borders, and treaties with non-Muslim lands, allies or otherwise, is altogether disqualified despite modern Muslim jurisprudence in the traditions of the existing legal schools recognizing their legitimacy in the modern world within an Islamic law framework.
This new understanding of jihad did not exist even half a century ago. It is a post-modernist understanding that was invented out of desperation, due to the current tyranny, wars, and oppression that are carried out against Muslims in various parts of the world. Unable to see any way for the Muslim world to overcome its humiliation and oppression, many young people turn to this theory of jihad as a desperate solution. Yet, the results have been catastrophic, causing even more problems for Muslims across the globe than before.”[14]
The Caliph manages military affairs
In a future caliphate based on normative Islam, imbuing the principles of a balanced and just nation (أُمَّةً وَسَطًا), it is only the caliph as commander-in-chief who has sole responsibility over military affairs within the domains of the Islamic state. No individual or group is permitted to undertake any military actions or initiate war unless in a defensive manner, without permission of the caliph. This is the position of any state in the world where the government has a “monopoly of the legitimate use of physical force.”[15] This is a well-established position from the time of the Prophet Muhammad ﷺ and throughout Islamic history.
In regards to the activities of the Jihadi-Salafis, Yasir Qadhi says, “This new understanding of jihad did not exist even half a century ago. It is a post-modernist understanding that was invented out of desperation, due to the current tyranny, wars, and oppression that are carried out against Muslims in various parts of the world. Unable to see any way for the Muslim world to overcome its humiliation and oppression, many young people turn to this theory of jihad as a desperate solution. Yet, the results have been catastrophic, causing even more problems for Muslims across the globe than before.”[16]
With regards to the role of the caliph in military affairs, Al-Mawardi (d.1058CE) says, “If the territorial authority of this type of amir (governor) lies adjacent to a border he may not initiate a jihad except with the Caliph’s permission, although he must wage war on them and repulse them if they initiate the attack, without the Caliph’s permission, as this forms part of his duty to protect and defend what is inviolable.”[17]
In a unitary state, the armed forces are all unified under the caliph who is the Commander-in-Chief. He has the sole power to declare war and despatch the military. Philip Hitti (d.1978) says, “The army was the ummah, the whole nation, in action. Its amir or commander in chief was the caliph in al-Madinah, who delegated the authority to his lieutenants or generals.”[18]
Muhammad Haykal says, “For the management and disposal to belong to the Imam represents the ‘Asl (original position) in relation to the Qitaal (fighting) of the enemies, when he exists, and it is obligatory to obey him in accordance to the speech of Allah (Most High):
“O believers! Obey Allah and obey the Messenger and those in authority among you.”[19]
…Based upon this understanding, the one entitled to dispose of the affairs of Al-Qitaal is only the Imam and consequently obedience to the Imam is obligatory in respect to the matters related to managing the matter or affairs of Al-Qitaal.”[20]
يَقُولُ شَرُّ قَتْلَى قُتِلُوا تَحْتَ أَدِيمِ السَّمَاءِ وَخَيْرُ قَتْلَى مَنْ قَتَلُوا كِلاَبُ أَهْلِ النَّارِ قَدْ كَانَ هَؤُلاَءِ مُسْلِمِينَ فَصَارُوا كُفَّارًا . قُلْتُ يَا أَبَا أُمَامَةَ هَذَا شَىْءٌ تَقُولُهُ قَالَ بَلْ سَمِعْتُهُ مِنْ رَسُولِ اللَّهِ ـ صلى الله عليه وسلم
“(The Khawarij) are the worst of the slain who are killed under heaven, and the best of the slain are those who were killed by them. Those (Khawarij) are the dogs of Hell. Those people were Muslims but they became disbelievers.” I said: “O Abu Umamah, is that your opinion?” He said: “Rather I heard it from the Messenger of Allah.” [Sunan Ibn Majah 176, https://sunnah.com/ibnmajah:176 ]
[5] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p. xvii
[6] Yasir Qadhi, ‘Understanding Salafism: Seeking the Path of the Pious Predecessors,’ Oneworld Academic, 2025, p.260
[20] Muhammad Khayr Haykal, ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya,’ vol.1, Chapter: The Tenth Study: Qitaal Al-Ghaarah (fighting by raids or attacks) for the purpose of seizing the property of the enemy
This is the first of a new series of articles addressing some misconceptions surrounding the issues of war and peace in Islam. It will focus primarily on the subject of Muslims living in non-Muslim countries who can face a moral dilemma with regards to split loyalties when their host country goes to war with a Muslim country.
The Takfiri[1]Jihadi-Salafi groups in particular have attempted to influence Muslims across the world with their extreme misinterpretation of Islamic texts in order to justify treacherous actions, both in Muslim and non-Muslim countries. While their impact has been miniscule in comparison to other criminal acts, and blown out of all proportion by those interest groups who have nefarious agendas against the Islamic religion, their arguments still need to be addressed in order to remove any confusion that may arise in someone’s mind regarding such conduct. In most cases, as with any intolerant and extreme views, whether Muslim or not, other sociological and psychological factors are in fact the real motivations behind many of these despicable acts.
Definition of jihad
The linguistic meaning of jihad in Arabic is exertion and struggle. “The core meaning is the depletion of something’s strength and its inner substance, causing it to dry up and wither, like barren land that has lost its fertility and dried up, or like someone emaciated by illness, etc. or like someone who exhausted his wealth.”[2]
In its linguistic meaning, jihad may apply to any struggle and perseverance over hardship, whether in war or within oneself – struggling with one’s desires i.e. jihad an-nafs. Imam Sulayman bin Umar Al-Jamal says, “Al-Jihad: It is the Sabr (perseverance) over the hardship; it could be in war and it could be within the Nafs (self).”[3]
In its sharia meaning, jihad means fighting the disbelievers to make Allah’s word the highest i.e. that justice is established by implementing the Islamic sharia in the lands it governs. When the Prophet Muhammad ﷺ was asked, who fights in the way of Allah? He ﷺ replied, مَنْ قَاتَلَ لِتَكُونَ كَلِمَةُ اللَّهِ هِيَ الْعُلْيَا فَهُوَ فِي سَبِيلِ اللَّهِ “Whoever fights so that the word of Allah may be supreme is fighting in the cause of Allah.”[4]
The famous Maliki scholar Muhammad ‘Ulaysh says, “Al-Jihad: It means the Muslim fighting the Kafir who does not have a covenant, to raise the word of Allah (Most High), or his attendance to it (i.e. to fight), or his entering into its land (i.e. the land of the Kafir) for it (i.e. the fighting). This is what Ibn ‘Arafah said.”[5]
Yasir Qadhi says, “The concept of jihad, which entails the military struggle to protect Islam and expand its borders, is not exclusive to the jihadist movements of the twentieth and twenty-first centuries. It has been a part of mainstream Islam from the earliest times and is held to be an integral part of Islamic law.”[6]
Every state has an army
Every state must have an army to protect its interests at home and abroad, and the Islamic State is no different in this regard. Although the word jihad has become a controversial term nowadays due to the west and its media equating it with terrorism, no one can dispute that fighting to make Allah’s word the highest i.e. that the systems and laws in the land are based on sharia is a major part of the Islamic religion, and two billion of the world’s population would not be Muslim today if it wasn’t for these conquests that took place over the centuries. The Prophet ﷺ said,
˹They are˺ those who have been expelled from their homes for no reason other than proclaiming: “Our Lord is Allah.” Had Allah not repelled ˹the aggression of˺ some people by means of others, destruction would have surely claimed monasteries, churches, synagogues, and mosques in which Allah’s Name is often mentioned. Allah will certainly help those who stand up for Him. Allah is truly All-Powerful, Almighty.[9]
In the first two centuries of Islamic history, the life of the Prophet Muhammad ﷺ – sīrah – was more commonly known as maghāzī (military expeditions). The earliest sīrah book we have is Kitab al-Maghāzī[10] by the Tabi’i scholar Musa ibn ‘Uqbah (d.758CE).
John Saunders says, “Once and once only, did the tide of nomadism flow vigorously out of Arabia. Bedouin raids on the towns and villages of Syria and Iraq had been going on since the dawn of history, and, occasionally an Arab tribe would set up a semi-civilized kingdom on the edge of the desert, as the Nabataeans did at Petra or the Palmyrenes at Tadmur, but conquests only occurred at the rise of Islam.”[11]
Fred Donner says, “In any case there can be no doubt that, from the very beginning, the Islamic state not only had a clearly identified sovereign (whatever he was called), but also seems to have had a clear concept of sovereignty which articulated the idea that the state should establish a properly righteous public order under the direction of the Believers, guided especially by the Qur’an, and that expansion of the state into new areas was a legitimate—indeed, an obligatory—endeavour. (However, it should be noted that this is not the same as demanding that everyone embrace the new faith.) Blankinship observes that the drive ‘to establish God’s rule in the earth’ through jihad, or active struggle, made the early Islamic state more ideological than any state that had existed before it, and has aptly called it the ‘jihad state’.”[12]
Terrorism is not Jihad
Who is a terrorist? US President George W. Bush famously said after 9/11, “Either you are with us, or you are with the terrorists.”[13] America and the other major world powers want free reign to plunder the resources of the earth, and will not hesitate in bombing, invading and massacring the inhabitants of resource-rich countries in order to achieve this. Anyone who dares to physically strive against their cruel campaigns is labelled a terrorist, unless the aims of these fighters happen to coincide with the interests of a particular world power. Samuel Huntington said, “The West won the world not by the superiority of its ideas or values or religion (to which few members of other civilizations converted) but rather by its superiority in applying organized violence. Westerners often forget this fact; non-Westerners never do.”[14]
Even though America and its allies are signatories to the UN resolutions legalising armed resistance to occupation, they still continue to label any fighters who don’t conform to their foreign policy interests as terrorists especially surrounding Palestine.
In 1982, UNGA Resolution 37/43 affirmed the legitimacy of the struggle for independence, territorial integrity, national unity, and liberation from foreign domination and foreign occupation by all available means, including armed struggle. This resolution openly recognized the right to use force against foreign illegal occupation, which it considers a serious threat to international peace and security, recalling the cases of Namibia and Palestine.
“Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”[15]
The Additional Protocol 1 to the Geneva Conventions (1977), to which Palestine acceded in 2014 (joining over 160 countries), in its Article 1(4), classifies conflicts in which peoples are fighting against alien occupation and racist regimes as armed conflicts. Individuals engaging in such “fighting,” if captured, should be afforded the status of prisoners of war, meaning their fighting is legitimate.
“Article 1(4) provides that armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes are to be considered international conflicts.”[16]
As the saying goes, “one man’s terrorist is another man’s freedom fighter.” U.S. President Ronald Reagan in reference to the Afghan Mujahideen fighting the Soviets said in 1983, “To watch the courageous Afghan freedom fighters battle modern arsenals with simple hand-held weapons is an inspiration to those who love freedom.”[17] Twenty years later and the Afghan freedom fighters became the first target of America’s global war on terror.
Compare Trump’s dealings with Syrian President Ahmed al-Shara who is a former member of Al-Qaeda that has killed American civilians, to that of Hamas and the Muslim Brotherhood who have never killed American civilians (unlike Israel), shows the hypocrisy in the language of terrorism. “I had a great conversation with the highly respected president of Syria, and all of the things having to do with Syria and that area,” Trump told reporters. “It’s working out very well, so we’re very happy about it,” the US president said.[18]
Although the west and its media equate jihad with terrorism as part of their domestic and foreign policy objectives, the Jihadi-Salafi groups have also contributed towards this maligning of jihad, by contradicting the clear commandments in the Qur’an and Sunnah related to what is permitted and not permitted in warfare. These strict rules of engagement especially with regards to non-combatants were enacted for over a millennium during the Islamic conquests. The Muslim armies did not commit genocides or wanton destruction of the peoples they conquered, because the objective of jihad is not to kill people or plunder their country’s resources. Jihad has a very clear objective which is to make Allah’s word the highest i.e. that justice is established by implementing the Islamic sharia in the lands it governs.
The Islamic Conquests
Montgomery Watt (d.2006) says, “Islamic ideology alone gave the Arabs that outward-looking attitude which enabled them to become sufficiently united to defeat the Byzantine and Persian empires. Many of them may have been concerned chiefly with booty for themselves. But men who were merely raiders out for booty could not have held together as the Arabs did.”[19]
While abuses, mistakes and collateral damage occurred during these battles, since these are human armies not armies of angels, on the whole “rule of law at the height of war” became a mantra of the Islamic conquests. If this had not been the case, then the conquered peoples would have rid themselves of the Muslim occupiers as soon as they were able to. In fact, the opposite occurred. Many of these ‘conquered’ peoples – especially outside the Middle East – embraced Islam and then spread Islam from their territories. The Muslim general Tariq bin Ziyad who conquered Spain in 711CE was not an Arab, he was a convert to Islam from a Berber tribe in what is now Algeria.
John Saunders compares the Arab and Mongol Conquests. He says, “In consequence the Mongols remained strangers in these lands, hated alien conquerors, an army of occupation, putting down no roots, and winning no loyalty.”[20] He then contrasts the Arab and Mongol conquests of Persia, “The contrast cannot be more strongly pointed than by considering the case of Persia, which was conquered both by the Arabs and the Mongols. The Arab conquest transformed the whole life and ethos of Iran, a clean break was made with the Sassanid and Zoroastrian past, the nation began its history afresh, its ancient language was submerged and when it later revived was choked with Arabic words which modern patriotism has scarcely managed wholly to expel. The Mongol conquest roared over Persia like a hurricane, yet when it had passed, the character of the nation had undergone little change. The Persians had accepted the Arab religion, but the Mongols accepted the Persian religion. Cultural continuity was maintained, despite enormous physical damage, and the Persian language was not only almost unaffected by Mongol but actually rose to be virtually the official language of the Mongol Empire.”[21]
Thomas Arnold, an orientalist and a Christian makes an observation of Islamic rule with regards its non-Muslim citizens (dhimmi): “But of any organised attempt to force the acceptance of Islam on the non-Muslim population, or of any systematic persecution intended to stamp out the Christian religion, we hear nothing.
Had the Caliphs chosen to adopt either course of action, they might have swept away Christianity as easily as Ferdinand and Isabella drove Islam out of Spain, or Louis XIV made Protestantism penal in France, or the Jews were kept out of England for 350 years.
The Eastern Churches in Asia were entirely cut off from communion with the rest of Christendom, throughout which no one would have been found to lift a finger on their behalf, as heretical communions. So that the very survival of these churches to the present day is a strong proof of the generally tolerant attitude of the Muhammadan governments towards them.”[22]
Rules of Jihad – Jus in bello
Shiraz Maher says, “Although jihadist violence is often characterised by nihilistic brutality it is neither whimsical nor irrational. Instead, there is a broad framework of laws which govern the rules of jihad, constituting the jus in bello[23] of Islamic war. The framework is broad and overarching, protecting the lives of civilians, the weak, elderly, women, non-combatants, animals, livestock, and woodland. This is well established in normative Islamic law and is also underscored by the consensus of the Prophet Muhammad’s companions, known as ijma’ al-Sahaba—a source of law in Sunni jurisprudence. When the first Caliph, Abu Bakr al-Siddiq, dispatched an army to Syria shortly after the Prophet’s death he codified a series of rules for combat which were universally agreed upon by his contemporaries. Soldiers fighting on his behalf were told: Stop, oh people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services, leave them alone.”[24]
Yasir Qadhi comments on the Jihad-Salafi’s invention of new rules relating to jihad that never existed in normative classical Islamic fiqh (jurisprudence). “This new understanding of jihad did not exist even half a century ago. It is a post-modernist understanding that was invented out of desperation, due to the current tyranny, wars, and oppression that are carried out against Muslims in various parts of the world. Unable to see any way for the Muslim world to overcome its humiliation and oppression, many young people turn to this theory of jihad as a desperate solution. Yet, the results have been catastrophic, causing even more problems for Muslims across the globe than before.”[25]
Conquest of Makkah – Where will we stay?
In the seerah of the Prophet Muhammad ﷺ we find “rule of law at the height of war” in every battle where treaties and covenants were honoured, civilian lives protected and prisoners of war treated in an equitable manner.
When the Prophet Muhammad ﷺ entered Makkah during the eighth year of the Hijra with 10,000 soldiers, he ﷺ did not enter as a conqueror, or enact revenge on the people who had driven him and the Muslims out. Everyone was given immunity except nine people who had committed severe crimes and treachery against Islam. Even then only four were actually executed with the others forgiven for their crimes.
The Prophet ﷺ had nowhere to stay in Makkah because his old house had been sold after he left the city. He ﷺ abided by the contract of sale that had transferred ownership of his old house to someone else prior to Islamic rule.[26] Abiding by the contracts, agreements and judicial judgements conducted before an Islamic State governs a land is a general principle that will be applied in a future Islamic State.
The Prophet’s ﷺ cousin ‘Aqil ibn Abi Talib had, according to the laws of Quraish, inherited the houses of his relatives that embraced Islam and emigrated. He had disposed of them and sold them, including the house of the Messenger of Allah ﷺ. So Usamah bin Zaid asked during the Conquest of Makkah: “O Messenger of Allah, will you stay in your house in Makkah?” He said: “Did ‘Aqil leave us any houses or dwellings?” ‘Aqil and Talib inherited from Abu Talib, but Ja’far and Ali did not inherit anything because they were Muslims, while Aqil and Talib were disbelievers.[27]
The Prophet ﷺ said, “We shall encamp in the valley of Banu Kinanah where the Quraish took an oath[28] upon disbelief, that is, Al Muhassab.”[29]
This means the Prophet Muhammad ﷺ did not return to his old house or confiscate it even though he was now the ruler of Makkah and had full authority to do whatever he wished with the people and their property.
Such levels of justice are only found among the prophets and those who follow in their footsteps.
Notes
[1]Takfir means declaring a Muslim as a kafir (disbeliever) or murtad (apostate). These groups label the current Muslim governments and those who are linked to them in any way, even casting a vote, as apostates whose blood is halal to spill.
[5] Muhammad ibn Ahmad ‘Illaysh, Manh al-Jalil, 3/135
[6] Yasir Qadhi, ‘Understanding Salafism: Seeking the Path of the Pious Predecessors,’ Oneworld Academic, 2025, p.334
[7] Abdul Mohsen Al-Abbad (b.1935) explains the meaning of hump (سَنام): “Jihad is called the pinnacle of the hump of Islam because in it is the elevation of Islam, its appearance and strength of the Muslims, and their superiority over the disbelievers and their victory over them.” [Explanation of Nawawi’s Forty Hadiths, https://shamela.ws/book/36944/723 ]
[11] Fred M. Donner, ‘The Expansion of the Early Islamic State,’ 2008, Routledge, p.39; John J Saunders, ‘The Nomad as Empire Builder: A Comparison Of The Arab And Mongol Conquests’
[12] Fred Donner, ‘The Articulation of Early Islamic State Structures,’ Routledge, 2012, p.xviii
[19] W. Montgomery Watt, “Economic and Social Aspects of the Origin of Islam,” Islamic Quarterly, 1, 1954.
[20] Fred M. Donner, ‘The Expansion of the Early Islamic State,’ 2008, Routledge, p.51; John J Saunders, ‘The Nomad as Empire Builder: A Comparison Of The Arab And Mongol Conquests’
[24] Shiraz Maher, ‘Salafi-Jihadism: The History of an Idea,’ Oxford University Press, 2016, p.46
[25] Yasir Qadhi, ‘Understanding Salafism: Seeking the Path of the Pious Predecessors,’ Oneworld Academic, 2025, p.343
[26] Makkah and the Haram are considered ‘ushri lands which have different rules to those of kharaj lands. Al-Mawardi says, “There is a difference of opinion as to whether he entered Makkah, the year of the Conquest, by force or peacefully, although they are agreed that he did not take any of their wealth and did not take any captives.
Abu Hanifah and Malik consider that he did enter by force and that he renounced the booty and set the captives free: thus when an Imam conquers a town by force, he may renounce the booty and set the captives free.
Ash-Shafi’i considers that he entered peacefully, having made a treaty with Abu Sufyan which stipulated that, “those who closed their doors would be safe and those who clung to the covering of the Ka’bah would be safe and those entering the house of Abu Sufyan would be safe,” — all that is, except for six persons who would be put to death even if they did cling to the covering of the Ka’bah, and they have been mentioned above. It was because of this peace treaty that no booty and no captives were taken. The Imam may not, if he has conquered a town by force, renounce the booty or free the captives — because of Allah’s claim in the matter and that of the booty-takers.
Thus Makkah and the Haram, as they were not taken as booty, are treated as ‘ushr lands, if they are cultivated; it is not permitted for the kharaj to be imposed on them.” [Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.235]
[28] The oath was that Banu Kinanah concluded a pact with the Quraish against Banu Hashim “they would have no marital relationship with them, nor would give them accommodation nor would have any commercial ties with them.”
Continuing our series on the bay’ah, one of the core issues which needs to be addressed is how to facilitate a smooth transition of power from one caliph to the next. Every ruling system faces this problem and if handled incorrectly may lead to instability and even civil war. This is something we witnessed throughout Islamic history when the caliphate transformed from a rightly guided caliphate into mulk (monarchy) not in the sense of the caliph being sovereign like an absolute monarch or king, but in the characteristics of a monarchy like hereditary rule and abuse of power. This was prophesised by the Messenger of Allah ﷺ who said,
“The caliphate will be for thirty years. Then it will become mulk (monarchy).”[1]
Hereditary rule was introduced by Mu’awiya who made his son Yazid the Wali Al-’Ahd (heir apparent or designated successor) before he died. This was meant to facilitate a smooth transition of power and prevent another civil war as Ibn Khaldun says, “Mu‘âwiyah himself preferred his son Yazîd to any other successor, because he was concerned with the (public) interest of preserving unity and harmony among the people, since the men who possessed executive authority, that is, the Umayyads, agreed at that time upon Yazîd.”[2] In fact it had the opposite effect, and sparked another civil war because this was a deviation from the principles of shura, free choice and consent which underpins the bay’ah. The Messenger of Allah ﷺ said,
“I have left you upon a clear path, its clarity is the same by night or day. No one deviates from it after me but that he will be ruined. Whoever among you lives will see much disagreement. So adhere to what you have recognized of my Sunnah and the Sunnah of the Rightly-Guided Caliphs, and cling stubbornly to it.”[3]
Transition of power in a monarchy
What is a Wali Al-’Ahd (Designated successor)?
A monarchy is the oldest type of ruling system and pre-dates Islam. The Roman and Persian empires and their proxy Arab kingdoms – the Ghassanids and Lakhmids – which existed at the time of Islam were all monarchies. Transition of power in a monarchy is by appointing a heir apparent or designated successor which in Arabic is called a Wali Al-’Ahd (وَلِيّ العَهْد) who will succeed the monarch when they die or abdicate. This transition can be seen in how Bilqis, the Queen of Shebah came to power.
“Bilqis, the Queen of Sheba, killed her tyrannical husband, the King of Himyar Amr Dhi Al-Adh’ar and hid his body under some rugs in the palace. She then gathered the kings of Himyar and the sons of the kings at her palace in Ghamdan and came out to them and said, “The king married me on the condition that I would renounce my kingdom to him during his lifetime, and you know that he would not have children. When he knew that I would submit to his right, surrender to his will, and obey his command, he delegated (فَوَّضَ fawada) the rule to me after him and saw that I was worthy of it and ordered me to take a pledge (عَهْد ‘ahd) from you regarding that.” They said, “We will hear and obey the king in whatever he wishes.” So she took an ‘ahd from them that she would have the kingdom after Amr. When she was certain of them, she said to them, “Do you listen to the king?” So she led them into the assembly. They said to her, “Where is the king?” She said, “Here he is.” So she uncovered him and they saw that he was dead. They said to her, “Who did this?” She said, “I am your heir apparent (وَلِيّالعَهْدWali Al-‘Ahd) to the kingdom after his death, and this one is dead, and my ‘ahd to you is binding.” They said to her, “You are more deserving of the kingdom since you have relieved us of this tyrannical filth.” So they made Bilqis bint al-Hudad ibn Shurahbil their Queen.”[4]
Choosing the Wali Al-’Ahd
The process of choosing who will succeed the monarch differs between the various flavours of monarchy.
The order of succession in Britain is now based on absolute primogeniture, meaning the eldest child of the monarch inherits the throne, regardless of gender. Prince William is the crown prince as the eldest child of his father King Charles, who was the crown prince for his mother Queen Elizabeth before ascending to the throne.
In Jordan the decision on the heir apparent is with the King. Two weeks before his death, on 24th January 1999, King Hussein removed Prince Hassan as the crown prince and appointed his eldest son Prince Abdullah who is now king. This decision took place 10 days after King Hussein rushed to London to meet the UK Prime Minister Tony Blair.
Saudi Arabia has an Allegience Council (هيئة البيعة Hay’at al-Bay‘ah) which is meant to choose the crown prince but in reality will simply rubber stamp the King’s decision. King Salman appointed his nephew Muhammad bin Nayef on ascending to the throne in 2015, and then two years later removed him and appointed his son Muhammad bin Salman as the crown prince.
In the caliphate, it was up to the caliph to choose his successor in a process known as Istikhlāf (succession). In fact, the scholars permitted the reigning caliph to not only choose the next caliph but also the caliphs after him in a binding ‘ahd (covenant). This process was introduced by the Umayyad ‘caliph’ Marwan ibn Al-Hakam (r.684-685CE).[5] This was permitted by the ‘ulema of the time and continued throughout the Umayyad and Abbasid periods.
Al-Mawardi (d.1058CE) says, “It is permitted for the Khaleefah to designate succession to two persons or more and to lay down an order of succession amongst them by saying, ‘The Khaleefah after me is such and such a person, and if he dies then the Khaleefah after his death will be such and such, and if he dies then the Khaleefah after him will be such and such a person.’ Thus the Khilafah will be transferred to the three persons in the order he has designated.”[6]
Training the Wali Al-’Ahd
The candidates for heir apparent will be groomed for ruling from a young age, going to the best schools, serving in the armed forces, and in the case of an absolute monarchy slowly taking on responsibilities of government and ruling. In the caliphate of the past this meant serving as a governor, Amir of Hajj and an army commander before becoming the official Wali Al-’Ahd which was usually at a special ceremony so the entire public could witness this.
Andrew Marsham describes this process in detail. “Lists of leaders of the ḥajj and annual campaigns (formalised as al-ṣāʾifa under the Marwanids) form two of the earliest strands in Islamic historiography. They reveal that these poles of the religio-political calendar were kept in the control of the ruling dynasty throughout the Umayyad (and early Abbasid) period: they were assigned to the caliph himself, a relative by blood or marriage, or to the walī al-ʿahd; leadership of the ḥajj was closely associated with leadership of the umma, and appears to have been a prerequisite for the nomination of the walī al-ʿahd; at this gathering he could be acclaimed by the descendants of the Anṣār and Muhājirūn, the Meccans and the provincial Muslims.
As we have seen, Muʿāwiya sent his son Yazīd on campaign against the Romans, and led the ḥajj with him. He also honoured his key supporters, and his son’s potential rivals, Saʿīd b. al-Āṣ, Marwān b. al-Ḥakam and ʿAbd Allāh b. ʿĀmir, with ‘public authority and high office’ (manābir . . . maʿālī al-ʿumūr): governorship of Medina and the leadership of the ḥajj in the case of Saʿīd and Marwān, eastern commands in the case of ʿAbd Allāh.
Under ʿAbd al-Malik, ʿAbd al-ʿAzīz b. Marwān was governor of the wealthy province of Miṣr.
Al-Walīd b. ʿAbd al-Malik led campaigns against the Romans in 77/696, 78/697, 79/698 and 80/699, and led the ḥajj in 78/698.
Sulaymān b. ʿAbd al-Malik led the ḥajj in 81/701.
In his father’s caliphate, ʿAbd al-ʿAzīz b. al-Walīd led a campaign against the Romans in 91/710 and led the ḥajj in 93/712 and perhaps in 94/713.
ʿUmar b. ʿAbd al-ʿAzīz led the ḥajj as governor of Medina in 87/706 and 92/711, which perhaps indicates his continuing claim on the succession. (He is also said to have led it in 98/717, a few months before the death of Sulaymān, whom he succeeded as caliph. However, this may be a retrospective modification of the record after ʿUmar’s unconventional succession; if so, it serves to illustrate the importance of the ḥajj to legitimating the succession.)
Ayyūb and Dāwūd, Sulaymān’s sons, were both given military commands.
Hishām b. ʿAbd al-Malik promoted his sons Muʿāwiya and Sulaymān as military commanders.
Sulaymān b. Hishām led the ḥajj in 113/732 and perhaps also in 120/738, and Maslama led it in 119/737. (Al-Walīd b. Yazīd, their rival as ʿUmar II’s second designated heir, is said to have led the ḥajj in 116/735.)
Even al-Ḥakam and ʿUthmān, children when they became walī al-ʿahds in 743, were said to have been given the governorships of Damascus and Ḥimṣ, respectively.”[7]
Upon the death of the monarch, the heir apparent usually takes power as a formality marking a smooth transition of power. Muhammad bin Salman, the current crown prince of Saudi Arabia, is the de facto King due to the incapacity of his father. On the death of his father, MBS’s accession to the throne should be a formality, although rival factions within the Saud family who represent various foreign interests are always in the background to potentially scupper the transition.
Looking back to world history, many times this transition was far from smooth because of rival claims to the throne. This can clearly be seen in the caliphates, emirates and sultanates which all adopted hereditary rule. Although there were periods of stability in the Umayyad, Abbasid, Seljuk, Mamluk and Ottoman periods, civil wars broke out many times due to disputes over the succession.
Eric Hanne describes this reality. “A case in point were the difficulties inherent in the Buyid, Saljuq, and Abbasid household politics. The familial-confederacy system, although irrevocably linked to the cousin-clan tradition from which both dynasties arose, was an inherently volatile form of rule. Baha’ al-Dawla rose to power only after he had earned the position through a protracted struggle with his relatives. To secure his rule he had to maintain this effort, a process that involved recognizing the status of such older relatives as Fakhr al-Dawla, and simultaneously bolster his own position in the region partly through the deposition of al-Ta’I’ and the installation of al-Qadir in Baghdad. Upon Baha’ al Dawla’s death, however, his lands, and those of the other Buyids in the region, experienced a prolonged series of conflicts among the various Buyid sons, brothers, and uncles.
The Saljuq system, although initially more successful than that of the Buyids, fell victim to the same centrifugal tendencies. After the relatively “cohesive” reigns of Tughril Bek, Alp Arslan, and Malikshah, the central Islamic lands experienced almost a century of constant warfare among the rival claimants to the Saljuq sultanate.”[8]
Is it permitted to appoint a Wali Al-’Ahd (designated successor)?
The majority of the classical scholars permitted Istikhlāf (succession) where the current caliph appoints the next caliph through an ‘ahd. Ibn Khaldun went as far to say that there is ‘ijma (consensus) on this point.
Ovamir Anjum mentions, “In the early phase of the caliphate discourse, there existed significant disagreement about whether testamentary designation is an independent means of appointing an imam. The Muʿtazila consider it invalid altogether. The Maliki Baqillani, the Hanbali Abu Ya’la, and others consider it valid only if followed by bay’a by the electors, thus effectively reducing its value to mere nomination.”[9] He continues: “Even going beyond Baqillani, Abu Ya’la does not consider appointment by designation sufficient in itself until the ahl al-halli wa’l-‘aqd (lit., the untiers and tiers) approve it. The untiers and tiers are considered by Abu Ya’la to be the representatives of the people. Mawardi is the first one to consider their agreement immaterial.”[10]
Muawiya ibn Abi Sufyan (d.680CE)
Mu’awiya who instigated hereditary rule, wrote to his governor in Madinah Marwan ibn Al-Hakam to take the bay’ah for Yazid. Marwan addressed the people: “The Amir of the Believers has decided to appoint his son, Yazid, as his successor over you, according to the sunna of Abu Bakr and ʿUmar.”[11]
Al-Mawardi (d.1058CE)
Al-Mawardi says:
والإمامة تنعقد من وجهين:
أحدهما: باختيار أهلِ العَقْدِ والحَلِّ
وَالثَّانِي: بِعَهْدِ الْإِمَامِ مِنْ قَبْلُ
“Imamate comes into being in two ways: the first of these is by the election of the Ahlul hali wal-aqd, and the second is by the delegation of the previous Imam.”[12]
Ibn Khaldun (d.1406CE)
Ibn Khaldun says, “The appointment of a successor is recognized as part of the religious law through the consensus of the (Muslim) ummah, (which says) that it is permissible and binding when it occurs. Thus, Abû Bakr appointed ‘Umar as his successor in the presence of the men around Muḥammad. They considered (this appointment) permissible and considered themselves obliged by it to render obedience to ‘Umar. Likewise, ‘Umar appointed six persons to be members of (an electoral) council.
No suspicion of the imam is justified in this connection, even if he appoints his father or his son his successor. He is trusted to look after the affairs of the Muslims as long as he lives. He is all the more responsible for not tolerating while he is (alive the possibility that there might arise evil) developments after his death. This is against those who say that he is suspect with regard to (the appointment of) his son or father, and also against those who consider him suspect with regard to the (appointment of) his son only, not his father. In fact, he could hardly be suspected in this respect in any way. Especially if there exists some reason for (the appointment of a successor), such as a desire to promote the (public) interest or fear that some harm might arise (if no successor were appointed), suspicion of the imam is out of the question.”[13]
Rashid Rida (d.1936)
Rashid Rida is particularly harsh against hereditary rule and the actions of Mu’awiya saying “Mu‘awiyah opened the door to tyranny for the powerful, and they went rushing to it!”[14] He continues, “Had the Muslims heeded what the revealed law sets down for the caliphate, and which was established during the era of the rightly guided caliphs, they would have been spared those episodes of discord and corruption. In that case Islam would have spread throughout all lands. Indeed, while in Constantinople a German scholar said to a nobleman from the Hijaz: “We should erect golden statues of Mu‘awiyah in our capitals. That is because if had he not deviated from the path that the revealed law set down for caliphal authority, the path that the rightly guided caliphs followed, the Arabs would have seized all of our lands, and fashioned them into an Islamic-Arab domain.”[15]
Abdul-Qadeem Zallum (d.2003)
Abdul-Qadeem Zallum is another contemporary scholar who is very critical of Istikhlāf, labelling the appointment of a Wali Al-’Ahd as a munkar (evil).
Abdul-Qadeem Zallum says, “The system of appointing a Wali Al-‘Ahd for ruling is considered to be a Munkar in the Islamic ruling system and it contradicts Islam completely. This is because the authority belongs to the Ummah and not to the caliph. If the caliph represents the Ummah in authority, which remains always hers, how could he give this authority to someone else? What Abu Bakr did for ‘Umar was not to appoint him as a Wali Al-‘Ahd, but merely a selection by the Ummah during the lifetime of the caliph, and then the bay’ah took place after his death.”[16]
Since Abu Bakr’s ‘ahd of selecting Umar ibn Al-Khattab as the next caliph, is used as the primary daleel (evidence) for Istikhlāf, we need to study what actually happened in this incident so we can derive a clear and precise sharia rule on what is and is not permitted with regards to designating a successor.
Is it permitted to use the title Wali Al-’Ahd?
As mentioned in the story of Bilqis, the use of the phrase Wali Al-’Ahd (وَلِيّ العَهْد) predates Islam. Although its traditional usage was related to monarchies and hereditary rule it is still a technical term (اِصْطِلاح istilah) and not a sharia term. There is a well-established sharia maxim (qa’ida) related to this which is:
لا مُشَاحَّة في الاصطلاح بعد الاتفاق على المعنى
There is no dispute over terminology after agreement on the meaning.[17]
It seems that the use of the phrase Wali Al-’Ahd came into widespread usage under the Abbasids. During the Umayyad period they simply used ‘ahd (covenant). Although the historians of the Abbasid period such as Al-Tabari used Wali Al-’Ahd in relation to Yazid, this is only their chapter title, and there is no statement of an individual at the time using this phrase. Al-Tabari titles this period in history as:
ذكر خبر البيعه ليزيد بولاية العهد
“Mention of the news of the bay’ah to Yazid as the Wali Al-’Ahd”[18]
Al-Juwaini (d.1085 CE) says, “Umar was his [Abu Bakr’s] Wali Al-’Ahd.”[35]
Mu’awiya used the term bay’ah instead of ‘ahd and this was objected to by the sahaba because bay’ah is a well-known sharia term in the hadith meaning a ruling contract between the Muslims and the caliph. Abdullah ibn Al-Zubayr said to Mu’awiya in relation to this, “Allegiance to both of you can never be combined.”[19] In other words, there cannot be two bay’ahs as this would mean the existence of two caliphs at the same time which is not permitted.
Therefore, using the term Wali Al-’Ahd is permitted and as we will come to, the appointment of a Wali Al-’Ahd is also permitted as long as it’s based on shura which in modern times means a general election.
Mufti Taqi Usmani says, “Istikhlāf (succession) means that a person who has been appointed as a legal ruler nominates his successor during his lifetime. The latter can also be called a Walī al-‘ahd, which is usually translated as ‘crown prince’ or ‘heir apparent’. The term Walī al-‘ahd is most often used in relation to monarchic rule, but its meaning can be extended to cover that of Istikhlāf, too.”[20]
Why did the sahaba oppose the designation of Yazid?
It should be noted that the sahaba’s opposition to Mu’awiya’s designation of his son Yazid as the next caliph, was not due to the actual right of him to nominate a successor (Istikhlāf). They opposed Mu’awiya’s decision because it was not based on shura among the sahaba who were the natural representatives (Ahl hali wal ‘aqd) of the people. Also it was not based on meritocracy but familial ties which is the hallmark of a monarchy and an antithesis to the caliphate system of justice.
Mu’awiya had initially tried to take bay’ah for Yazid via his governor in Madinah Marwan ibn Al-Hakam. He wrote to Marwan to take the bay’ah and Marwan addressed the people: “The Amir of the Believers has decided to appoint his son, Yazid, as his successor over you, according to the sunna of Abu Bakr and ʿUmar.” Abd ar-Rahman ibn Abi Bakr stood up and said, “Rather, according to the sunna of Khosrow and Caesar! Abu Bakr and ʿUmar did not appoint their sons to it, nor anyone from their families.”[21]
Later when Mu’awiya came in person to Madinah to take the bay’ah, Abu Bakr’s other son Muhammad ibn Abi Bakr said to him, “You want us to entrust you to Allah in the affair of your son, but, by Allah, we will not do that. By Allah, return this affair as a matter of shura among the Muslims or we will bring it against you all over again.”[22]
From these statements it is clear that the core issue on why the sahaba opposed Yazid was due to him taking the bay’ah based on familial ties rather than shura and meritocracy. If Mu’awiya had chosen based on merit then he would have chosen al-Hussain or Abdullah ibn Al-Zubayr or another sahabi, as the sahaba are of a distinguished rank unmatched by anyone as Allah ta’ala says,
As for the foremost—the first of the Muhajirin and the Ansar—and those who follow them in goodness, Allah is pleased with them and they are pleased with Him.[23]
Did Abu Bakr make Umar the Wali Al-’Ahd?
Abu Bakr made Umar the Wali Al-’Ahd (in reality but not a formal title) through a written document (‘ahd). This ‘ahd was not like what happened with Mu’awiya’s ‘ahd for Yazid, or the actions of any of the Umayyad and Abbasid caliphs. Abu Bakr’s nomination of Umar as the next caliph was based on shura. The sahaba by their own volition requested that Abu Bakr make the decision for them. It was well-established that the Prophet’s ﷺ wazir and right hand man, the companion of the Messenger in the cave, and the most senior of the sahaba is more qualified in this regard than them. Abu Bakr would never deviate from the sunnah and select someone who was not capable of performing the role of caliph.
Although Abu Bakr only instigated the process of searching for a new caliph when he became ill during the last two weeks of his life, there is no time limit for when this process can begin. In fact an ‘ahd can be drawn up as soon as a new caliph is elected to office.
“The first time Abu Bakr’s illness began was when he bathed on Monday, 7th Jumada al-Akhira, and it was a cold day. He had a fever for fifteen days and did not go out to pray [in congregation]. He used to order Umar ibn al-Khattab to lead the people in prayer, and people would come in to visit him, and he would become more ill every day while he was staying in his house.”[24]
When Abu Bakr became ill and his condition became clear to him, he gathered the people to him and said, “What you see has happened to me, and I do not think that I am here except for my fate [death]. Allah has released your oaths of bay’ah to me and has loosened my bond (‘aqd) from you and has returned your affair to you, so appoint over you whomever you like, for if you appoint over you during my lifetime it will be more likely that you will not differ after me.”
So they spoke about that and left him, but it did not work out for them [i.e. they couldn’t agree], so they returned to him and said, “An opinion, O Caliph of the Messenger of Allah ﷺ [i.e. we want your opinion].” He said, “Perhaps you will differ.” They said, “No.” He said, “Then you must make a covenant (‘ahd) with Allah to be pleased.” They said, “Yes.” He said, “Then give me time to consider Allah, His deen, and His servants.”[25]
Abu Bakr consulted Abdul-Rahman ibn Awf and Uthman bin Affan[26] who were from the ten promised Jannah in this life, and other prominent sahaba before announcing his recommendation that Umar ibn Al-Khattab should be the next caliph. The wider ummah in the capital Medina accepted this decision and after the death of Abu Bakr, the inhabitants of Medina gave their bay’ah to Umar in the Prophet’s Mosque as was customary at the time.
Abu Bakr summoned Uthman [his secretary] to him in private and said to him, “Write, ‘In the name of Allah, the Merciful, the Most Merciful. This is the ‘ahd which Abu Bakr bin Abi Quhafah has enjoined on the Muslims. Now then…’” At this point, he fainted, losing consciousness. Uthman wrote, ‘Now then, I have appointed Umar bin al-Khattab as my successor over you. I have not neglected the best among you.’ Then Abu Bakr awoke and said, “Read it to me.” When he read it to him, Abu Bakr said, “Allahu Akbar” and then went on, “I see that you were afraid that the people would quarrelif I died suddenly in my coma.” Uthman said, “Yes.” Abu Bakrsaid, “May Allah reward you kindly for the sake of Islam and its people!”Abu Bakr confirmed the text from this place.[27]
It’s important to note that being the Wali Al-’Ahd is not a guarantee of being given the bay’ah once the previous caliph dies or leaves office. In theory the sahaba could have pledged allegiance to someone else after Abu Bakr’s death as the ‘ahd written by Abu Bakr was a nomination and recommendation for the position not the actual bay’ah. The bay’ah contract only came into play once Abu Bakr had died and Umar was pledged to in the Masjid. This is because the ummah is always the source of authority (masdar al-sultah مَصْدَر السُلْطَة) in an Islamic state.[28]
Ibn Taymiyyah explains that the authority is not contracted to its possessor unless it is by the agreement of the majority of the people whilst the rejection of the minority does not harm the matter. He explained that the Khilafah of ‘Umar Ibn Al-Khattaab (ra) was not completed by the ‘Ahd (delegation or assignment) of the Khilafah to him by Abu Bakr (ra) but rather it was enacted by the Bai’ah of the people to him.[29] Ibn Taymiyyah states:
“Umar became the Imam when they gave him the bay’ah and obeyed him. Had it been destined that they would not have implemented the ‘Ahd of Abu Bakr in respect to ‘Umar, then he would not have become the Imam, whether that was permissible or not. That is because the allowed and prohibited relate to the actions whilst the ruling and authority represent an expression of the occurring power or capability. Had it been destined that Abu Bakr gave the bay’ah to ‘Umar alongside a group whilst the remainder of the Sahabah refrained from giving him the bay’ah, then he would not have become an Imam by that. He only became an Imam by the bay’ah of the majority of the people and for that reason the holding back of Sa’d (i.e. Sa’d ibn ‘Ubaadah from the Ansaar) did not harm that because it does not impair or diminish what is intended in terms of the Wilaayah (authority, ruling and leadership). As for ‘Umar having rushed to give him the bay’ah then there must be a precedent in respect to every bay’ah. As for his delegation (or nomination) to ‘Umar then that was completed through the Muslims giving the bay’ah to him after the death of Abu Bakr after which he became an Imam.”[30]
Choosing a Wali Al-’Ahd based on shura is permitted
It’s clear that Abu Bakr made Umar his successor by writing an ‘ahd, which we can refer to as a Wiliyatul-’Ahd. Although some contemporary scholars have referred to the designation of a Wali Al-’Ahd as a munkar, it’s more precise to say that the munkar is appointing a Wali Al-’Ahd based on familial ties instead of shura and meritocracy. The issue of Istikhlāf in of itself isn’t the problem. It’s the resulting injustice which occurs from not following the sunnah in this issue.
Therefore instituting the Wiliyatul-’Ahd based on shura is permitted in the sharia and this is the stance of the sahaba and all the ‘ulema.
Judge Hussein bin Mohammed Al Mahdi says, “The ummah is entrusted with choosing who will rule them, whether through bay’ah, election, or referendum. As for the position of Wali Al’Ahd, it is based on what the Rightly-Guided Caliph Abu Bakr al-Siddiq (ra) did during his covenant with Umar (ra), and it is nothing more than a nomination and recommendation.
Ibn Taymiyyah said in his book, Minhaj as-Sunnah: “Likewise, Umar, when Abu Bakr entrusted him with the position, only became an Imam when they pledged allegiance to him and obeyed him. If it were possible that they would carry out Abu Bakr’s ‘ahd and not pledge allegiance to him, he would not have become an Imam.”
Ibn Taymiyyah then repeats this meaning in another place, saying: “As for Umar, Abu Bakr entrusted him with the position, and the Muslims pledged allegiance to him after Abu Bakr’s death, so he became an Imam when he gained the power and authority through their bay’ah.”
Therefore, the position of Wali Al’Ahd, as defined by sharia, does not in any way contradict the ummah’s right to choose. Whoever is nominated for the position of Wali Al’Ahd requires the explicit bay’ah from the ummah to become Caliph. Therefore, it is the Shura Council that decides the matter, either by bay’ah, direct election via voting and referendum, or entrusting this major task to those who represent the nation in the House of Representatives. The matter is all based on Shura.”[31]
The Umayyad Caliph Umar bin Abdul-Aziz (r.717-720CE) came to office by the ‘ahd of the previous caliph Sulayman ibn Abdul-Malik. Sulayman’s nomination of his nephew Umar was kept a secret because of opposition from the other sons of Abdul-Malik ibn Marwan who thought they were more entitled to the position. Umar was visibly distressed by being appointed.[32]
“Having now officially assumed the seat of the caliphate, Umar ascended the Minbar (pulpit) in what would be his first encounter with the Ummah. He said: “O people! I have been burdened with the responsibilities of the caliphate against my own will and without your consent. I thereby remove the bay’ah to me that is on your necks so that you are at liberty to elect anyone whom you like.” But the audience cried out with one voice that he was the fittest person for the high office and said: “We have chosen you, O Amir al-Mu’mineen, and we are pleased that you have blessed and honoured our good affair.” At this juncture, Umar sensed that he was not going to be able to evade bearing the responsibility of the caliphate, and so he decided to go on with determining his method and approach in dealing with the politics of the Muslim Ummah.”[33]
Umar bin abdul-aziz initially resigned because the Wali Al-’ahd imposed upon him was not based on shura. Once the people’s representatives (ahl hali wal ‘aqd) agreed for him to be the caliph he then took office once again with a bay’ah based on shura. It is for this reason that the scholars and historians unanimously agree that Umar bin Abd al-Aziz was the first Mujaddid (Reviver; Renewer) in Islam based on the hadith:
“At the turn of every century, Allah will send a person to rectify the religious affairs of this Ummah.”[34]
Transition of power in a future caliphate
In order to facilitate a smooth transition of power to the next caliph there has to be free and fair elections (shura) so the caliph has a mandate to rule via a legitimate bay’ah. There has been much focus on Umar ibn Al-Khattab’s council of six and the three day time limit he imposed for choosing a new caliph, but in modern times this short time limit may be far from realistic and practical. Conducting a general election is simply not possible within three days which means it falls to the Majlis Al-Nuwwab (House of Representatives) to elect the caliph. The Majlis is an elected house which institutionalises the classical concept of the Ahl hali wal-aqd (those who loosen and bind) who are an electoral body that chooses the caliph.
An alternative solution is to look at Abu Bakr’s designating of Umar as the next caliph through his ‘ahd (covenant). While the process of searching for a new caliph only occurred during the last two weeks of Abu Bakr’s life, there is no time limit here for when it can begin. In fact an ‘ahd can be implemented as soon as a new caliph is elected to office.
In modern times the choosing of the Wali Al-’Ahd will be through elections. This needs to be a general election and not an election by Majlis members only. This ensures that every mature Muslim male and female is able to exercise their choice of who the caliph will be, by voting for the Wali Al-’Ahd who should become the caliph as a formality when the need arises. This will facilitate a smooth transition of power from one caliph to the next.
Electoral process
Elections are simply a style (أُسْلُوب) or administrative process and the method of undertaking them can be copied from any state or government. One possible scenario is below.
Elections need to be instituted for four institutions of state:
1- Governor
2 – Wali Al-’Ahd
3 – Majlis Al-Wiliyah
4 – Majlis Al-Nuwwab
Each post above is for a time term of six years with elections every two years. The cycle then repeats at year 6.
Electoral Year
Position
0
Governor and Wali Al-’Ahd
2
Majlis Al-Nuwwab member
4
Majlis Al-Wiliyah member
Training the new Wali Al-’Ahd
For someone to even be considered a viable candidate for the post of Wali Al-’Ahd they would have served in multiple positions within the state already such as a Majlis member, armed forces officer, governor or minister. Once elected to the position of ‘Caliph in-waiting’ then the current caliph should appoint the Wali Al’Ahd as his deputy caliph (na’ib) which would match the classical position of Wazir Al-Tafweedh codified by Al-Mawardi. He would have general supervision like a Prime Minister or Grand Vizier as opposed to a specific portfolio. This means he can supervise all aspects of the state, assisting the current caliph and learning the art of government and politics at a strategic level.
This is how the caliphs of the past were trained and is how they gained ruling experience (Al-Kifiya) which is a contractual condition of the bay’ah contract.
The hidden pronoun (dameer mustatir) in the verb تصير is a هي and it refers back to the word Khilafah. This doesn’t mean the Khilafah will end after thirty years, rather it means the Khilafah will continue but with the characteristics of mulk. Sayf ad-Deen al-Amidi (d.1233CE) says,
أنه قال: «ثم تصير ملكا» والضمير فى قوله: تصير ملكا، إنما هو عائد إلى الخلافة؛ إذ لا مذكور يمكن عود الضمير إليه غير الخلافة، وتقدير الكلام، ثم تصير الخلافة ملكا، حكم عليها بأنها تصير ملكا، والحكم على الشيء، يستدعى وجود ذلك الشيء
He ﷺ said, «ثم تصير ملكا» “Then it becomes a kingdom.” The [hidden] pronoun in his phrase, تصير ملكا “It becomes a kingdom,” refers to the caliphate, as there is no mentioned entity to which the pronoun can refer other than the caliphate. The interpretation of the statement, ثم تصير الخلافة ملكا “Then the caliphate becomes a kingdom,” is a hukm that it will become a kingdom, and a ruling on something requires the existence of that thing. [Sayf ad-Deen al-Amidi, ‘al-Imaamah min abkar al-afkar fi usul ad-din,’ Shamela edition, p.1151]
[2] Ibn Khaldun, ‘The Muqaddimah – An Introduction to History,’ Translated by Franz Rosenthal, Princeton Classics, p.270
[5] Al-Suyuti says, “The soundest view is that of adh-Dhahabī, who said that Marwān is not regarded as one of the Amirs of the Believers, but as a rebel (bāghin) against Ibn az-Zubayr, and that his appointment of his son was not valid. ʿAbd al-Malik’s Khilafah only became valid when Ibn az-Zubayr was killed.”[Jalal ad-Din as-Suyuti, ‘History of the Umayyad Khaleefahs,’ translated by T.S.Andersson, Ta Ha Publishers, p.42]
[6] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.23
[7] Andrew Marsham, ‘Rituals of Islamic Monarchy Accession and succession in the first Muslim empire,’ Edinburgh University Press, p.124
[8] Eric J. Hanne, ‘Putting the Caliph in His Place: Power, Authority, and the Late Abbasid Caliphate,’ 2007, Fairleigh Dickinson University Press, p.205
[9] Ovamir Anjum, ‘Politics, Law, and Community in Islamic Thought – The Taymiyyan Moment,’ Cambridge University Press, 2012, pp.114
[10] Ovamir Anjum, ‘Politics, Law, and Community in Islamic Thought – The Taymiyyan Moment,’ Cambridge University Press, 2012, pp.119
[11] Jalal ad-Din as-Suyuti, ‘History of the Umayyad Khaleefahs,’ Op.cit., p.24
[12] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.12; https://shamela.ws/book/22881/14#p1
[13] Ibn Khaldun, Op.cit., p.269
[14] Muhammad Rashid Rida, ‘The Caliphate or Supreme Imamate,’ first published 1922-1923, translation of Al-Khilafa aw al-Imama al-‘Uzma, translated by Simon A Wood, Yale University Press, 2024, p.248; https://shamela.ws/book/9682
[15] Ibid, p.114
[16] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.96
[21] Jalal ad-Din as-Suyuti, ‘History of the Umayyad Khaleefahs,’ Op.cit., p.24
[22] Ibid
[23] Holy Qur’an, Surah At-Tawbah, verse 100
[24] Al-Tabari, ‘The History of Al-Tabari’, translation of Ta’rikh al-rusul wa’l-muluk, State University of New York Press, Vol. 11, p.131 https://shamela.ws/book/9783/1692
[28] Hashim Kamali, ‘Citizenship and Accountability of Government: An Islamic Perspective,’ The Islamic Texts Society, 2011, p.197
[29] Muhammad Khayr Haykal, ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya,’ vol.1, The Tenth Study
[30] ‘Al-Muntaqaa Min Minhaaj Al-I’tidaal’, Adh-Dhabiy and ‘Ikhtisaar Minhaaj As-Sunnah, Ibn Taymiyyah: p.57 from (‘Ad-Dawlah Wa Nizhaam ul-Hisbah in the view of Ibn Taymiyyah’, by Muhammad Al-Mubaarak: 37)
[31] Judge Hussein bin Mohammed Al Mahdi – Member of the Supreme Court of the Republic of Yemen, The book of Shura in Islamic Law, 2009, https://shamela.ws/book/26217/96#p1
[32] Al-Tabari, Op.cit., Vol. 24, p.70
[33] Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, p.107
The Islamic ruling system is underpinned by a number of principles (القَواعِد) which are derived from the Qur’an and Sunnah. These principles will map to one or more formal institutions (أَجْهِزَة) within the state which are necessary to meet the demands of a society in a specific time and place.
Israr Ahmed (d.2010) says, “Since we cannot recreate as such the Islamic Order as it functioned during the age of the Rightly Guided Caliphate, we must adopt the following principle: we should take the principles and ideals from the model of the Prophet Muhammad ﷺ and the Rightly Guided Caliphs (RAA), and then incorporate these principles and ideals in the political institutions that have been developed in the contemporary civilized world as a result of the process of social evolution.”[1]
What is the Wiliyat Al-Mazalim?
One of the principles of the Islamic ruling system is “Removing Maẓālim” (plural: مَظالِم singular: مَظْلِمَة) which literally means removing oppression but in its istilahiyya (technical) meaning refers to removal of state oppression. The principle is shortened in the literature to maẓālim and the institution itself maybe called a Mahkamat (court), Diwan (Department) or Wiliyat (government function). Regardless of the term used the underlying principle is the same.
Al-Rifa’i has described the maẓālim as ‘a specialized jurisdiction that operates side by side, yet separately, from the regular judiciary in order to adjudicate disputes and grievances wherein one or both parties possesses influence and power that may arise from holding a government position or other sources of influence.’[2]
According to Muhammad Salam Madkur, the maẓālim jurisdiction ‘is a judicial office that ranks above those of the qadi and the muhtasib and combines a degree of executive power with judicial authority in order to settle grievances brought before it by members of the public against government officials, governors and rulers, princes, army commanders and the judges themselves.[3]
Muhammad Al-Massari says, “The ummah’s holding the ruler accountable…is not sufficient and the obligation is not waived if the head of state, his assistants, the governors, and the rest of the state’s ruling apparatus are not subject to the rulings of the judiciary, and are isolated from appearing in disputes before a judge who decides on the dispute. The fact that sovereignty belongs to the Sharia, and authority belongs to the ummah, stipulates that the head of state, like all Muslims, is subject to the judiciary, unlike some contemporary systems, which stipulate that the head of state is inviolable. He is not subject to the law, nor to appearing before the courts. Rather, he is not punished for the crimes he commits. Islam does not permit this, but rather makes it a departure from the Sharia, and the Almighty’s saying:
“O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.”[4]
This verse guides the way out if a dispute occurs between the subjects and those in authority, or in a ruling of the Sharia, and it is referred to Allah and His Messenger ﷺ. This verse explains some very important constitutional issues, including:
1- People have the right to dispute with the ruler.
2- It is necessary for there to exist in the Islamic State system a free body independent of the influence of the people and the influence of the rulers, to decide disputes in accordance with the highest law: the law of Allah and His Messenger.
3 – The ruling of this body must be decisive for the dispute once and for all, that is, it must have final finality in itself, so it does not need approval or approval from any other party at all, but rather it should be implemented on everyone: the head of state, the ministers, the members of the Shura Council and those below them.
This body, to which the ummah’s disputes with the rulers are referred, is the Mahkamat Al-Mazalim (Court of Grievances), which has the authority to look into any mazlima, whether it is related to persons from the state apparatus, or related to the head of state’s violation of the provisions of Sharia, or related to the meaning of a text of legislation in the constitution and the law. All other legal rulings are within the state’s adoption, or related to the imposition of a tax, or otherwise.[5]
As Muhammad Salam Madkur mentions this particular government function is not solely judicial and contains an element of executive power which in modern times maps to the functions of an upper house. Al-Mawardi mentions this power in his definition of the Mazalim.
“He investigates any abuse of power by rulers towards their subjects, and brings them to account for the injustice of their actions; this is a necessary part of investigation and is not dependent upon a petition from a plaintiff.”[6]
Immunity from prosecution
As Al-Massari highlights, the president in a democratic republican system enjoys immunity from prosecution while in office. This is to prevent the unauthorised abuse of power by an unelected judiciary who could become more powerful than the elected executive. Such an exemption is necessary in democratic systems because sovereignty is to human beings. In the Islamic system, sovereignty is to the law i.e. sharia in which everyone no matter what their position or rank in society, are required to obey.
C.A. Nallino (d.1938) an Italian orientalist and Professor of The History and Institutions of Islam, at The Royal University of Rome in 1919, wrote “While these universal Monarchs [caliphs] of Islam possessed, like any other Mussulman [Muslim] sovereign, limitless executive and judicial powers, they were destitute of legislative powers; legislation in the proper sense of the word could be nothing less than the divine law itself, the sceria [sharia], of which the only interpreters are the ulama or doctors.”[7]
Wael Hallaq says, “The ruler himself was also expected to observe not only his own code but, more importantly, the law of the Sharīʿa. As a private person, he remained, like any common Sharīʿa subject, liable to any civil claim, including debts, contracts, and pecuniary damages. Likewise, he was punishable for infractions of the Sharʿī penal laws and Qurʾānic ḥudūd —the reasoning in all these domains being grounded in the assumption that all Muslims, weak or strong, are equal in their rights to life and property and in their obligations toward one another. In the Sharīʿa, the sultan and his men enjoyed no special immunity.”[8]
“Whenever [Umar ibn Al-Khattab] was in need, he would go to the Head (Sahib) of the Bait ul-Mal (State Treasury) and ask for a loan. Sometimes he would face financial difficulties, so the Sahib of the Bait ul-Mal would come to him to collect, and would oblige him to pay it, and Umar would be evasive to him. Then he would receive his stipend and pay him back.”[9]
The Sahib of the Bait ul-Mal was Zayd ibn Arqam who was appointed by Umar.[10]
Compare this to today where many of the Muslim rulers use the state treasury like their personal bank account.
Mazalim in the Sunnah
All the principles of the ruling system existed in the Islamic State of the Prophet Muhammad ﷺ but most were only made into formal institutions much later during the Umayyad and Abbasid Caliphates. Institutions such as the Wazirate and Diwan Al-Mazalim were only formalised during the Abbasid period, and codified by Al-Mawardi (d.1058CE) in his famous book Al-Ahkam Al-Sultaniyyah.
Price Fixing
The principle of removing mazalim has its origins in the sunnah where the Prophet ﷺ referred to price fixing as a mazlima (مَظْلِمَة). He ﷺ said,
A man came and said: “Messenger of Allah, fix prices.” He said: “(No), but I shall make du’a.” Again the man came and said: “Messenger of Allah, fix prices.” He said: “It is but Allah Who makes the prices low and high. I hope that when I meet Allah, none of you has any claim on me for doing wrong (mazlima) regarding blood or property.”[11]
Price fixing is unjust state intervention in the free market. This affects the entire society and so in his ﷺ role as a ruler-prophet he forbade this practice, and used the term mazlima for this type of societal injustice. The Prophet ﷺ could not commit a mazlima because he is infallible (مَعْصُوم ma’sum) so no separate institution to address mazalim was required in his ﷺ time. If any mazlima was committed by any government official or some societal injustice occurred, he ﷺ would deal with it directly in his capacity as a ruler. This also applies to future caliphs who have the authority to address mazalim directly, unless there is a conflict of interest with them and their families.
Bribery
The Messenger of Allah ﷺ appointed a man from the Azd tribe called Ibn al-Utbiyya, to collect the Sadaqat of Banu Sulaim. When he came back, the Messenger of Allah ﷺ asked him to render his account. He said: “This wealth is for you (i.e. for the public treasury) and this is a gift (presented to me).” The Messenger of Allah ﷺ said: “Why did you not sit in the house of Your father and your mother until your gift comes to you, if you are truthful.” Then he addressed us.
“As for what follows, I appoint a man from among you to a job in which Allah has appointed me, and he comes and says, ‘This is your wealth and this is a gift that has been given to me.’ Why doesn’t he stay in the house of his father and mother until his gift comes to him, if he is truthful?
By Allah, none of you takes anything from it unjustly, except that he will meet Allah Almighty carrying it on the Day of Resurrection. I will surely know one of you who will meet Allah carrying a camel that is bellowing, or a cow that is mooing, or a sheep that is bleating.” Then he raised his hands until the whiteness of his armpits was visible, then he said, “O Allah, have I conveyed the message?”
The narrator said: “My eyes have seen it and my ears have heard it.”[12]
This is a clear act of one of the tax collectors receiving a gift which in reality is a bribe from the tribe of Banu Sulaim. This is a mazlima. The Prophet ﷺ immediately addressed this publicly to establish the rule on the forbiddance of bribery among all of society but in particular government officials. Renaming a bribe to a gift doesn’t make it halal as the Prophet ﷺ made clear.
In modern times all major western cooperations and governments have registers where any gifts from suppliers or party donations must be registered. This is a fairly recent phenomenon in the west, but in Islam it was addressed in the 7th century.
Is it the caliph or a separate qadi who deals with the mazalim?
The function of mazalim is in origin a judicial function, and so during the Rightly Guided Caliphate it was performed by a separate qadi (judge) if the case at hand was related to the caliph in some way. If there was no conflict of interest, then the caliph would intervene directly to address the mazlima since the bay’ah contract assigns him executive and judicial powers (hukm). The caliph cannot pass a judgement on a case in which either he or his family is implicated in some way as this is the antithesis of justice. This practice continued throughout the Umayyad and Abbasid periods.
In modern governing structures the executive would address many of the issues that a traditional mazalim court would deal with via laws and policies. This is why the mazalim principle maps to an upper house (Senate or Dar Al-’Adl) in today’s systems in addition to the judicial functions of a supreme court and appellate court.
Umar’s limiting of the marriage dowry (mahr)
When Umar ibn Al-Khattab was caliph he wanted to adopt a law which would limit the marriage dowry (mahr) for women. So one day Umar delivered a khutbah (sermon) and said: “Do not give more than forty uqiyahs[13]in dowries to women, even if she is the daughter of Dhu al-Qissah – i.e., Yazeed ibn al-Husayn[14]. Whoever gives more than that, I will seize the extra amount and put it in the Bayt ul-Mal(State Treasury).”
A woman objected to that and said, “You do not have the right to do that!” Umar asked, “Why not?” She said, “Because Allah, the Exalted, Almighty says:
“And if you have given one of them a Qintar[15], take not the least bit of it back; would you take it wrongfully without a right and with a manifest sin?”[16]
‘Umar replied, “A woman is right and a man is wrong.”
According to another report, Umar said: “O’ Allah, forgive me! Everyone has more knowledge of religion than ‘Umar.” Then he went back and ascended the minbar and said: “O’ people, I used to forbid you to give women more than four hundred dirhams in their dowries, but now whatever anyone wants to give of his wealth of his own accord, let him do so.”[17]
Umar removed the mazlima directly without the need for a separate qadi as part of his executive power relating to adoption of laws.
This level of accountability present in the Rightly Guided Caliphs is what sets them apart, and makes them an example to emulate for any leader today or in the future. The Prophet ﷺ said,
“I urge you to adhere to my sunnah and the sunnah of the Rightly-Guided Caliphs and cling stubbornly to it.”[18]
Umayyads
Hugh Kennedy describes the judicial powers of the caliphs. “The evidence of the pre-ninth century, such as it is, suggests that the caliph did, at that stage, have the position of ultimate and supreme judge and did have the power in certain circumstances to make and decide law. It comes from letters and poems of the period. The role of the caliph as judge was supported in the Qur’ān where God tells David: ‘We have appointed you caliph on earth so judge among the people with truth’ (38.25). The poets of the Umayyad court took it for granted that the caliph was a judge. In the words of the great Umayyad poet Farazdaq (d. c.729), the caliphs were ‘imams of guidance and beaters of skulls’. Another poet, Ahwas, said of the caliph Sulaymān that he had been appointed by God ‘so judge and be just’; and Jarīr, the great rival of Farazdaq as court poet, said, ‘He is the caliph, so accept what he judges for you in truth’. Abd al-Malik held formal courts acting as qādī and a page would recite poetry on legal justice before business got underway.”[19]
Abdul-Malik ibn Marwan (r.692-705CE)
Khair ibn Nu’aym, a former qadi was appointed as a secretary (katib) in the Diwan Al-Rasa’il (Office of Correspondence) for the Umayyad caliph Abdul-Malik ibn Marwan. Abdul-Malik reassigned him from his executive office and reappointed him as a qadi.
“When the order was presented, they returned Khair ibn Nu’aym to the judiciary. Abd al-Malik ibn Marwan came to [Khair ibn Nu’aym] to sue his cousin. [Abdul-Malik] sat on his couch and [Khair ibn Nu’aym] said to him, “Stand up with your cousin!”
[Abdul-Malik] said, “It seems you have taken offense at us for appointing you as a secretary (katib) after having served as a judge.”
[Abdul-Malik] stood up and did not sue.”[20]
Judicial independence existed throughout Islamic history. Abdul-Malik thought that Khair ibn Nu’aym would give him preferential treatment since he appointed him but this was not the case. Abdul-Malik had to refer his dispute with his cousin to a separate qadi since there would be a conflict of interest in him passing judgment himself.
Al-Mawardi says, “The first to assign a specific day for the investigation of claims by those who had suffered wrong actions — without actually taking part directly himself — was ‘Abd al-Malik ibn Marwan. If the latter had to deal with some problem, or if he needed an executory judgement, he would hand it over to his Qadi Abu Idris al-Awdi; the litigants would accept his judgements out of fear of ‘Abd al-Malik ibn Marwan who was aware of the circumstances and reasons for the decision. Thus Abu Idris was actually conducting the cases and ‘Abd al-Malik was giving the orders.”[21]
Umar ibn Abdul-Aziz (r.717-720CE)
The Umayyad Caliph Umar ibn Abdul-Aziz spent his entire rule personally removing the mazalim and injusticeswhich had been perpetrated for decades against the people by Banu Umayyah.
When Umar bin Abdul-Aziz was a young man, he went to his father’s stables to see one of the horses when a horse suddenly struck him in the face causing him a head wound. As his father was wiping away the blood, he said to Umar, “If you were to be the one with the scar (ashajj), then you would be the happiest of all the Umayyads.” This is because Umar bin al-Khattab used to say, “There will be among my offspring a man with a scar (ashajj) on his face who will fill the earth with justice, just as it was filled with injustice and oppression.”[22]
There are many mazalim that Umar ibn Abdul-Aziz redressed. One of the famous incidents is related to Islamic rule in central asia.
The illegal occupation of Samarkand
Qutaybah bin Muslim was the campaign commander and governor-general in Central Asia who conquered Samarkand in the year 93AH/711-12CE under Al-Walid ibn Abdul-Malik.[23] Instead of following the methodology of offensive jihad he simply invaded the city and turned it into a garrison town.
When Umar bin Abdul-Aziz came to power the people of Samarkand saw an opportunity to gain justice so they met with the Central Asian governor Sulayman Abi as-Sarri and said, “Qutaybah has betrayed and wronged usby seizing our town. Allah has shown us justice and equity, therefore if we are allowed, we would like to send a delegation to the Amir al-Mu’minin to complain of our injustices and if we are within our rights, he will address our needs.”
Sulayman granted their request and a delegation of men represented their case to the Caliph. After speaking with the delegation Umar bin Abdul-Aziz wrote to Sulayman saying, “Indeed, the people of Samarkand have come complaining to me of the injustices inflicted upon them, stating that Qutaybah has unjustifiably stationed his army in the town in their midst and forced them to leave. Therefore, when my letter reaches you, appoint a tribunal to judge and settle the dispute between Qutaybah and the people of Samarkand. If the judgment of the tribunal goes against the army chief and his men are asked to vacate, they must do so at once and the people may return to the way they were before Qutaybah appeared on the scene.”
Sulayman appointed Jumay’a bin Hadir as the Qadi Mazalim over the case. Jumay’a ruled in favour of the people of Samarkand saying, “Sudden attack on them without warning was unlawful,” and the Muslim army had to withdraw. After witnessing this justice, Samarkand and neighbouring Soghd decided against fighting a war with the Muslims and agreed to live side by side with them under Islamic rule. Their influential scholars said, “We have mixed and lived side by side with those people. They are peaceful with us and we are with them. Should you decide that we are to return to war, it would be futile and we do not know whom the victory will belong to. We would only be bringing hostility upon ourselves.”[24]
Abbasids
Al-Mansur (r.754-775CE)
The second Abbasid Caliph Al-Mansur had a dispute with his wife, and this incident was referred to the Egyptian Qadi Ghawth ibn Sulayman. It seems Al-Mansur’s wife had a condition added to the marriage contract that Al-Mansur couldn’t take another wife which he agreed to, and this was the basis of the dispute. In the court Al-Mansur was forced to sit with his wife’s representatives on the floor rather than on the raised cushions where the Qadi sat. This is another example of judicial independence in the caliphate.
Al-Kindi narrates the incident. “Ghawth ibn Sulayman stayed in Egypt for twenty-three years after he was dismissed from his position as a judge in the year 144 AH. This was because a dispute arose between Umm al-Mahdi (Mansur’s wife) and Abu Ja’far (Mansur). Umm Musa bint Yazid ibn Mansur ibn Abdullah al-Himyariyya said, ‘I will not be satisfied except with the judgment of Ghawth ibn Sulayman.’
So he was taken to Iraq until he judged between him and them, and then he returned to Egypt.
I heard Ghawth ibn Sulayman say: “The Amir ul-Mu’mineen, Abu Ja’far, sent for me, and I was brought to him. He said to me: ‘O Ghawth, your Himyarite woman [Mansur’s wife] has brought a dispute before you regarding her [marriage] conditions.’
I said: ‘Would the Amir ul-Mu’mineen be pleased to make me a judge over her?’ He said: ‘Yes.’
I said: ‘Judgments have conditions, so will the Amir ul-Mu’mineen accept them?’ He said: ‘Yes.’
He said: ‘The Amir ul-Mu’mineen orders her to appoint a representative (wakil) and have two free servants testify to his appointment, whom the Amir ul-Mu’mineen will appoint as equals to himself.’
So he did, and she appointed a servant and sent with him her dowry [marriage] document. The two servants testified to her representation. I said: ‘The representation is complete. If the Amir ul-Mu’mineen sees fit to treat the opponent equally in his session.’
So he [Al-Mansur] got down from his bed and sat with the opponent. The agent handed me the dowry document, and I read it to him. I said: ‘The Amir ul-Mu’mineen acknowledges what is in it?’ He said: ‘Yes.’
I said: ‘I see in the document certain conditions by which the marriage contract between you was concluded. Do you think, Amir ul-Mu’mineen, if you had proposed to her and not stipulated this condition, would they have married you?’ He said: ‘No.’
I said: ‘So with this condition, the marriage contract was concluded, and you are more deserving of fulfilling her condition.’
Al-Mansur said: ‘I knew when you seated me in this session that you would rule against me.’
I said to him: ‘Give me a great reward and release me [from the position of qadi].’
Al-Mansur said: ‘Rather, your reward is from the one in whose favor you ruled i.e. his wife.’
Then he ordered a cloak and a gift for me.
Then Abu Ja’far ordered Ghawth to be appointed to judge between the people of Kufa. Ghawth said to him, ‘O Amir ul-Mu’mineen, this country is not mine, nor do its people belong to me. If I call for someone with a need to litigate, and no one comes, will you permit me, O Amir ul-Mu’mineen, to return to my country?’
He said, ‘Yes.’
So Ghawth sat down to judge, then he called out after that, and the opponents stopped coming to him so he departed for Egypt.”[25]
Al-Ma’mun (r.813 – 833CE)
It is narrated that the Abbasid caliph Al-Ma’mun used to personally sit in the Mazalim Court on Sundays. On one such day a woman in rags confronted him complaining that her land had been seized.
Al-Ma’mun then asked her: “Against whom do you lodge a complaint?” She replied: “The one standing by your side, al-’Abbas, the son of the Amir of the Believers.” Al-Ma’mun then told his Qadi, Yahya ibn Aktam, (while others say that it was his wazir Ahmad ibn Abi Khalid), to hold a sitting with both of them and to investigate the case – which he did in the presence of al-Ma’mun. When the women raised her voice and one of the attendants reprimanded her, al-Ma’mun said: “Leave her, for surely it is the truth which is making her speak, and falsehood which is causing him to be silent,” and he ordered that her land be restored to her.[26]
If the mazlima of stealing the women’s land had been committed by anyone else other than the caliph’s son, then Al-Ma’mun would have passed judgement on the issue directly. However, because his son had stolen the land he had to appoint a separate qadi to redress the mazlima.
Who appoints the Qadi Al-Mazalim?
In principle the caliph holds the power to appoint and dismiss all judges including the Mazalim judges. This is necessary to maintain an executive counterbalance to the judiciary. As we saw in the Umayyad and Abbasid examples previously, despite the caliph appointing the qadi, this didn’t influence the decision of the qadi and in fact many times they ruled against the caliph. This is because the principle of judicial independence exists within the Islamic ruling system.
With regards the Mazalim judges it’s possible for the caliph to delegate the appointment and dismissal of these judges to a committee within the Dar Al-’Adl which acts in a similar manner to an upper house like a senate. Feldman makes a similar proposal when discussing the Islamic legislature that it “could be a court exercising Islamic judicial review to shape and influence laws passed in its shadow.”[27]
This delegation of appointment is similar to the caliph delegating the appointment of governors to the people of the province or their representatives in the regional assembly through elections.
Who removes the Qadi Al-Mazalim?
The caliph has the executive power to dismiss all judges, but in practice the position of a qadi was a life-long appointment. Unlike other political appointments such as wazirs and governors, the judges generally remained in place under different ruling factions and dynasties, and even under rebel leaders such as Al-Mukhtar in Kufa.
The most famous example of this is Shurayh (d.78 AH/697 CE), the chief justice of Kufa who was first appointed by Umar ibn Al-Khattab. Shurayh was kept in his position until he died. He was the judge under the reign of Uthman, Ali, Hasan, Mu’awiya, Yazid, Al-Mukhtar, Abdullah ibn Al-Zubayr and Abdul-Malik ibn Marwan. Across the political spectrum and under multiple caliphs they kept him in his position because it was an established precedent that the ‘ulema should maintain their independence.
Noah Feldman describes this situation, “It [the law] was analyzed, discussed, applied, discovered, and (an outsider would say) made by the members of a distinct social-political grouping known as the scholars, or in Arabic ‘ulama. From this scholarly class came not only theologians and other intellectuals but the appointed judges who decided concrete cases and independent jurists who opined as to the meaning of the law. Through their near monopoly on legal affairs in a state where God’s law was accepted as paramount, the scholars-especially those of them who focused on law-built themselves into a powerful and effective check on the ruler.”[28]
Muhammad Al-Massari says, “In order to ensure that sovereignty remains for the Sharia, and authority for the ummah, it is imperative that it is not permissible to remove the judges of the Court of Grievances by the head of state, because the Caliph is removed from the caliphate in certain cases, in which he departs from the caliphate, so he becomes no longer obligated to be obeyed and must be removed, and the Court of Grievances is the body that has that power and not Other than that, if the power to dismiss grievance judges is in the hands of the head of state, then she will not be able to dismiss him, as he may hasten to dismiss the judges before they dismiss him, and that would obstruct the rulings of the Sharia from being implemented in any respect, and disrupting the rulings of the Sharia, even by one rule, is not permissible. Therefore, keeping the power to dismiss the judges of the Mahkamat Al-Mazalim in the hands of the Caliph was a means of disrupting the provisions of Sharia law in any aspect, and it is absolutely forbidden. The legal principle “the means to haram is haram” (الوسيلة إلى الحرام محرمة), which is deduced from the Almighty’s saying:
˹O believers!˺ Do not insult what they invoke besides Allah or they will insult Allah spitefully out of ignorance.[29]
derives a hukm that it is forbidden for the power to dismiss the judges of the Mahkamat Al-Mazalim to remain in the hands of the Caliph.
The Caliph, in his capacity as head of state, is subject to the rulings of the Mahkamat Al-Mazalim. Thus, the arbitrariness of the head of state in his use of his authority and powers is guaranteed, and the nation becomes able to dispute with the state before the Mahkamat Al-Mazalim to remove the injustices that fall upon the subjects from the mazalim of the ruling apparatus. Thus, the dominance and sovereignty of the Sharia is truly confirmed, and the authority is thus achieved. The ummah is truly and truthfully, not just an image or form.”[30]
The Mazalim judges should therefore be lifelong appointments and their dismissal handled by other Mazalim judges as part of a committee within the Dar Al-’Adl. Abdul-Qadeem Zallum (d.2003) says, “The caliph is allowed to give the (head) Qadi al-Mazalim or the Qadi al-Qudah (Chief Judge) the power to remove the Qadi al-Mazalim, reprimand, remove or transfer him. If he did so, they would have the mandatory power to remove, account and reprimand the Qadi al-Mazalim.”[31]
Institutions of Mazalim in the Rightly Guided Caliphate
Since the Mazalim is a judicial/executive function it maps to multiple institutions in modern times.
Supreme Court
Appeals Court
Upper House
In the time of the Rightly Guided Caliphs these formal institutions did not exist but the functions did. Traditional judicial rulings involving the caliph took place by separately appointed judges as mentioned above. Appeals against judgements also existed, and Sharia committees advised and debated on legislation via shura.
Since no formal titles existed for most government posts except that of ‘amil (worker), we need to look at the functions of these positions in order to derive the activities and individuals of the Mazalim.
Ali ibn Abi Talib was a qadi for the Prophet ﷺ in Yemen and it’s clear that he continued to hold this position throughout the rule of Abu Bakr, Umar and Uthman. Even though Ali wasn’t the formal head of the judiciary, we can extrapolate that he was certainly a wazir, and as a wazir he automatically had the power of a Mazalim judge. Al-Mawardi says, “If he is among those who have control over the generality of affairs, like wazirs and amirs, he does not need to have a specific appointment (taqleed) to this office, since the general nature of his authority (wiliyah) gives him jurisdiction in this.”[32]
With regards to Ali, Al-Sallabi says, “Ali was a prominent member of the shura committee of Umar’s state; indeed, he was the main consultant. Umar acknowledged Ali’s virtue, understanding of Islam and wisdom, and he had a good opinion of him. It is proven that he said concerning him: ‘The best of us in judiciary matters is Ali.’[33] Ibn al-Jawzi said: ‘Abu Bakr and Umar (ra) used to consult him, and Umar used to say[34]: “I seek refuge with Allah from a problem that Abu al-Hasan (‘Ali) cannot handle.”’[35]
Muhammad Al-Massari says, “Someone does not say that the Mahkamat Al-Mazalim did not exist at that time, but rather the truth is that it existed and was effective, and the Companions’ jurists, who are well-known and famous, were its judges. The same was true of the Shura Council, as it was composed of senior Companions, although there was significant overlap between the two bodies since administrative arrangements and procedural formalities had not yet fully developed.”[36]
Mazalim under Abu Bakr As-Siddiq
Ali stopping Abu Bakr going out for battle
It is related that ‘Aishah said, “My father went out with his sword unsheathed; he was mounted on his riding animal, and he was heading towards the valley of Dhil-Qissah ‘Ali ibn Abi Talib came, took hold of the reins of Abu Bakr’s riding animal, and said, “Where are you going, O Caliph of the Messenger of Allah?” The question was rhetorical, for ‘Ali knew very well that Abu Bakr planned to lead his army into battle. “I will say to you what the Messenger of Allah ﷺ said on the Day of Uhud,” ‘Ali went on. By this statement, ‘Ali was referring to what had happened on the Day of Uhud: When Abu Bakr wanted to engage in a duel-to-the-death with his son ‘Abdur-Rahman (who was still a disbeliever), the Prophet ordered him to draw back his sword and to return to his place. ‘Ali went on to say, “Draw back your sword and do not bring upon us the tragedy of your death. For by Allah, if we become bereaved of you, (the nation of) Islam will not have an organized system of rule (rather, due to the apostate problem, chaos will break out).” Abu Bakr acquiesced to ‘Ali’s demand and returned to Al-Medina.”[37]
Abu Ubaidah and Umar – his two wazirs
Abu Bakr on his death bed said, “I wish that on the day of Saqifat Bani Sa’idah, that I had thrown the matter upon the neck of one of the two men (meaning Umar and Abu Ubaydah) so that one of them would have become the Amir [of the Believers] and I would have been his wazir.”[38]
Umar ibn Al-Khattab and Abu Ubaydah ibn Al-Jarrah who were both from the Ashratul-Mubashireen (10 promised Jannah), were the wazirs to Abu Bakr As-Siddiq when he was the caliph. Tabari narrates,
“When Abu Bakr was appointed, Abu Ubaidah said to him: ‘I will take care of finance (Al-Mal) for you (meaning the taxes), and Umar said: ‘I will take care of the judiciary (Al-Qadaa’) for you.’ So Umar remained for a year without two men coming to him.”[39]
Therefore, Abu Ubaidah had the portfolio of finance meaning he was the Treasury Secretary, although such a title didn’t exist at the time. Umar was the head of the judiciary which included the role of Qadi Al-Mazalim (Judge of Unjust Acts) who investigates acts of injustice related to the government. This is understood from Umar’s speech: أَنَا أُكْفِيكَ الْقَضَاءَ “I will take care of the judiciary (Al-Qadaa’) for you.” The word الْقَضَاءَ is Mutlaq (unrestricted) due to the Alif Lam and therefore includes the Mazalim role.
We can also see a practical example of Umar’s and Ali’s Mazalim role in the following incidents.
Abu Bakr’s salary
A short while after Abu Bakr as-Siddiq (ra) was appointed as Caliph, Umar ibn al-Khattab (ra) and Abu Ubaidah ibn al-Jarrah (ra) were walking in Medinah when they met Abu Bakr (ra) carrying garments on his shoulders and going to the marketplace to trade. Umar asked Abu Bakr, “What are you doing?” Abu Bakr replied, “I am going to trade.” Umar said: “After you became responsible for all the Muslims!?” Abu Bakr said, “But I have to feed my family.” So Umar said, “Let’s go and we will pay you an allowance.”[40]
Umar and Abu Ubaidah decided to pay Abu Bakr 250 dinars a year and a daily allowance of half a sheep in food.
Sometime later Umar was walking in Medinah when he came across a group of women. He asked them “What are you doing?” They replied, “We are waiting for the Caliph.” Abu Bakr did not turn up for office that day so Umar went searching for him and found him in the marketplace trading again.
Umar grabbed the hand of Abu Bakr and said, “What are you doing?” Abu Bakr replied, “The allowance you gave me is not enough.” Umar said, “Fine, we will increase it for you.” Abu Bakr said, “I want 300 dinars a year and a daily allowance of a whole sheep in food.” Umar said, “No. We are not going to give you that.” Ali intervened and said, “Give it to him.” Umar said, “You think so?” Ali replied, “Yes.” So Umar said, “We agree.”
Abu Bakr then stood on the minbar in the masjid and called the sahaba. He said, “You have paid me 250 dinars a year and a daily allowance of half a sheep in food, and that wasn’t enough for me. So Umar and Ali have given me an increase to 300 dinars a year and a daily allowance of a whole sheep. Do you agree?” The sahaba replied, “We agree.”[41]
Only a qadi with judicial mazalim powers can impose a judgement on the caliph. The judiciary in Islam is separate to the executive branch and has both institutional and decisional independence.
Ali’s intervention indicates he was a wazir with some mazalim powers as well.
Overturning Abu Bakr’s executive order to grant land to Influentials from Banu Tamim
‘Uyaynah ibn Hasan and al-Aqra’ ibn Habis were influentials from the tribe of Banu Tamim, a large and powerful tribe located in Najd (Eastern Saudi Arabia). It is upon them that the following verse in Surah Al-Hujjurat was revealed:
“Indeed, most of those who call out to you ˹O Prophet˺ from outside ˹your˺ private quarters have no understanding ˹of manners˺.”[42]
Muhammad ibn Ishaq and others said: “This verse was revealed about some uncouth people from Banu Tamim. A delegation of the Banu Tamim went to see the Prophet ﷺ. They entered the mosque and called the Prophet ﷺ who was in his private apartment (hujra): ‘O Muhammad, come out to meet us, for our praise is nice while our censure is nasty.’ Their shouting annoyed the Prophet ﷺ and so he came out to see them. They said: ‘O Muhammad, we have come to brag to you.’ Allah ta’ala revealed about them: ‘Indeed, most of those who call out to you ˹O Prophet˺ from outside ˹your˺ private quarters have no understanding ˹of manners˺.’ Among these people were al-Aqra’ ibn Habis, ‘Uyaynah ibn Hasan, al-Zibriqan ibn Badr and Qays ibn ‘Asim”.[43]
‘Uyaynah ibn Hasan and al-Aqra’ ibn Habis came to Abu Bakr and said: “O Caliph of the Messenger of Allah ﷺ, there is some swampy land where no grass grows and it is of no use. Why don’t you give it to us to cultivate it, so that perhaps there will be some benefit in it after today?”
Abu Bakr said to those who were around him[44], “What do you think of what they said, if it is swampy land that is of no use?” They said, “We think that you should give it to them, so that perhaps there will be some benefit in it after today.”
So he gave it to them and wrote a document for them stating that it was theirs. He wanted ‘Umar to witness it, but he was not among the people, so they went to ‘Umar and asked him to bear witness.[45] They found him applying pitch to a camel of his and said, “Abu Bakr has asked you to bear witness to what is in this document. Shall we read it to you or will you read it?” He said, “I am as you see I am, if you wish you can read it and if you wish you can wait until I am finished and I will read it myself.” They said, “No, we will read it.”
So they read it and when Umar heard what was in the document, he took it from their hands, then he spat on it and wiped it (i.e., obliterated what was written). They complained about that and said something bad. He said, “The Messenger of Allah ﷺ used to be kind to you, when Islam was in a weak position at that time. Now Allah has made Islam strong, so go and work hard. May you never succeed if you graze your flocks in that land!”
They went to Abu Bakr and started to complain, saying, “By Allah, we do not know if you are the caliph or ‘Umar!” He said, “No, he could have been the caliph if he had wanted to be.” Then Umar came, and he was angry. He stood over Abu Bakr and said, “Tell me about this land that you gave to these two. Is it your own land or does it belong to all the Muslims?” He said, “No, it belongs to all the Muslims.” He said, “Then what made you give it to these two only and not to all the Muslims?” He said, “I consulted these people who were around me and that is what they advised me to do.” He said, “If you consulted those who were around you, did you consult all the other Muslims, and were they pleased with it?” Abu Bakr (ra) said, “I told you that you were more qualified for this role than I, but you insisted.”[46]
Again, only the Qadi Al-Mazalim can overturn a policy or executive order of the caliph. In this case the land was public property belonging to all the Muslims and so according to Umar all the Muslim representatives in Medina should have been consulted. In modern times this would be conducted through the Majlis Al-Nawwab (House of Representatives). Abu Bakr agreed that Umar was correct in his judgement and submitted to it.
Mazalim under Umar ibn Al-Khattab
Zayd ibn Thabit – Head of the Judiciary
Umar appointed Zayd ibn Thabit as the head of the judiciary during his caliphate.[47]
When Ubayy ibn Ka‘b made a claim against Umar with regard to a garden which Umar did not know about, they appointed Zayd ibn Thabit to judge between them. They went to Zayd in his house and when they entered, Umar said, “We have come to you so that you may judge between us.” Zayd moved to let Umar sit in the best seat — and according to another report, Zayd brought out a cushion and gave it to him, saying, “Here you are. O Ameer al-Mu’mineen.” Umar said, “You have been unfair in your judgement at the outset, O Zayd. Rather let me sit with my opponent,” and they both sat in front of him.[48]
Umar had to swear an oath, and Zayd said: “Let the Ameer al-Mu ‘mineen off.” Umar said, “Why should he let the Ameer al-Mu’mineen off? If something belonged to me I would be entitled to it by virtue of my oath, otherwise I would not lay claim to it. By the One besides Whom there is no other god, this garden is mine and Ubayy has no right to it.” After the case was settled [which Umar won], he gave the garden to Ubayy as a gift. It was said to Umar, “Why didn’t you give it to him before the oath?” He said, “I feared that if I did not swear the oath, the people would not swear oaths for their rights after me, and that would become the norm.”[49]
Similar to Umar in Abu Bakr’s caliphate, Zayd ibn Thabit had the power of Mazalim so would judge on issues related to the caliph where there was a conflict of interest. In this case since the claim was against Umar himself an independent judge had to be appointed to decide the case.
Ali ibn Abi Talib – Head of Appeals Court
Ali had the portfolio of judiciary by virtue of being a wazir and a qadi of Medina, which included the role of a Qadi Al-Mazalim. Part of the functions of the Mazalim are to act as an appeals court for judgements which are not in conformity to the sharia both textually and in reality.
It should be noted that in origin once a judge passes a verdict it cannot be overturned. It can only be appealed and annulled if the judgement contradicts the sharia or the reality on which it was based was misunderstood.
Al-Sallabi mentions “If a judge passes a ruling concerning some case, then he changes his view on that issue afterwards after studying it further, he cannot go back and change his ruling. It is also not permissible for a judge after him to overrule the judgement he passed.
It was narrated that Salim ibn Abi al-Ja‘d said, If ‘Ali were to have undone a judgement that had been passed by ‘Umar, he would have undone his judgement concerning the people of Najran. ‘Ali had written down the treaty between the people of Najran and the Prophet ﷺ, then their numbers increased at the time of ‘Umar until he feared for the people concerning them. Then a disagreement arose between them and they came to ‘Umar and asked him for compensation, so he compensated them. Then they regretted it and something happened among them, so they came to him and asked him to let them off, but he refused to do so.
When ‘Ali became caliph, they came to him and said, ‘O’ Ameer al-Mu’mineen, you interceded for us and wrote a treaty with your right hand.’ ‘Ali said, ‘Woe to you! ‘Umar was right in what he did.’ Umar refused to undo the first judgement that he had passed concerning them, and after ‘Umar had died, ‘Ali refused to undo the judgement that ‘Umar had passed concerning them .”[50]
An insane woman who committed zina
“An insane woman who had committed zina was brought to ‘Umar. He consulted the people then he commanded that she be stoned. ‘Ali ibn Abi Talib passed by and said: ‘Take her back!’ Then he came to ‘Umar and said, ‘Do you not know that the Pen has been lifted…?’ and he quoted the hadith[51]. At the end of it Umar said, ‘Yes.’ ‘Ali said, ‘Then why should she be stoned? Let her go.’ And ‘Umar started to say takbeer.[52]
The reality of the woman’s mental health was misunderstood by Umar so his judgement was overturned by Ali.
A woman who married during her ‘iddah
“A woman who had gotten married during her ‘iddah[53] was brought to Umar, so he separated her from the man she married, took her mahr (dowry) and put it in the public treasury and said: ‘I do not allow a mahr in a marriage that is invalid.’ He also said: ‘You two should never marry again.’
News of that reached ‘Ali and he said: ‘If they were unaware of the ruling, she may keep the mahr because he was intimate with her, but they should be separated, and when her ‘iddah ends, he will be like any other suitor.’
Umar addressed the people and said: ‘Misjudgements are to be reviewed in accordance with the Sunnah, and Umar judged according to the view of ‘Ali.’”[54]
The sharia rule was applied incorrectly by Umar so his judgement was overturned by Ali.
Muhammad ibn Maslama
Imam Ibn al-Mubarak narrated in al-Zuhd, in which he said: Sufyan ibn Uyaynah told us on the authority of Musa ibn Abi Isa, who said:
Umar ibn al-Khattab came to the drinking place of Ibn Haritha and found Muhammad ibn Maslama. Umar said: “How do you see me, Muhammad?” He said: “By Allah, I see you as I like, and as those who love good for you like. I see you strong in collecting wealth, chaste in it, just in distributing it, and if you deviate, we will treat you fairly as an arrow treats a wound.” Umar said: “Huh?” He said: “And if you deviate, we will treat you fairly as an arrow treats a wound.” He said: “Praise be to Allah who has placed me among a people who treat me fairly when I deviate.”[55]
Muhammad bin Maslama was the right hand man of Umar when dealing with the governors, and effectively a wazir with this portfolio i.e. Diwan al-’Ummal (Department of Governors Affairs) although such a formal title did not exist, the function existed.
Al-Sallabi says, “Muhammad ibn Maslamah al-Ansari was appointed by ‘Umar to check on the governors and to examine any complaints that were made against them. The role of Muhammad ibn Maslama was that of a general inspector in the caliphate. He checked on how the governors were doing their job and brought to account those who were falling short ‘Umar sent him to check on the senior governors, investigate complaints, to meet the people and listen to them, and to transmit their opinions of their governors directly to Umar. Muhammad ibn Maslamah also had some helpers.”[56]
Imposing kharaj tax on the sawad agriculture lands in Iraq
After the conquest of Iraq, Umar initially wanted to divide the sawad agricultural land among the Muslim army as the Prophet ﷺ had done during his lifetime. There was no standing army at this time, and so soldiers received their compensation through ghaneema (war booty) and land.
Umar ordered that the sawad land be counted. It was found that a man would be affected by three farmers, so he consulted with them [sahaba] about that, and Ali ibn Abi Talib said to him: “Leave them alone, so that they may be a source of support for the Muslims.”[57]
Mu’adh ibn Jabal, another judge and member of the shura council agreed with Ali and warned ‘Umar against dividing the land. Mu‘adh said: “By Allah, the consequences of that will not be good, for if you divide it, all these lands will come under the people’s control but eventually it will end up in the hands of one man or one woman. Then after them there will come people who will engage in a great deal of jihad, but they will not find anything (because all the land will already have been conquered — their jihad will be in self-defence). So think of something that will benefit all the Muslims, now and later on.”[58]
Two other members of the shura council Zubair ibn Al-Awwam and Bilal disagreed with this approach of imposing a kharaj tax and wanted the lands divided. In the end Umar agreed with Ali and Mu’ath and so he left the farmers on their land and sent Uthman ibn Hunaif in charge of them [as a land surveyor]. He imposed on them forty-eight, twenty-four, and twelve [dirhams].[59] In other words Umar imposed a kharaj land tax which would become a permanent revenue for the Islamic state for generations to come.
Again here we see the role of Ali as a Qadi Al-Mazalim intervening in government policy and resolving the dispute among the sahaba. Mohammad Al-Massari comments on this, “This is the procedure followed by the Imam of Guidance, the Rightly Guided Caliph, and the Amir ul-Mu’mineen, Umar bin Al-Khattab, when there was a dispute and conflict over how to deal with the lands of Egypt, Iraq, and other countries conquered by force. The Imam decided that its neck should be locked up for the Muslim treasury forever, so that it could be spent on the mujahideen, the borders, and other sources of the nation, while a group of conquerers led by Al-Zubayr and Bilal, may Allah be pleased with them all, insisted on the necessity of dividing it specifically among the warriors, as is the case. The same applies to all other spoils. The opposition believed that Umar’s procedure violated the legal text. The dispute was not over which of the two measures was closer to achieving the interest. That is, the dispute was not political, that is, over how to deal with what is permissible. Rather, it was a dispute over the legitimacy of one of the state’s systems, i.e. one of its laws!
Judgment actually came to a group of the Companions’ jurists, and the matter settled on the legitimacy of Umar’s understanding, so he issued his order to the horizons, and that procedure became the applicable law, and Al-Zubair, Bilal, and their opposition colleagues could not help but submit and surrender, even if a group of them, headed by Bilal, remained in their opposition. And their criticism of Umar, and Umar was praying to Allah to suffice him with Bilal and his companions!”[60]
Mazalim under Uthman bin Affan
Uthman left Zayd ibn Thabit as head of the judiciary in Medina[61], and Ali continued as a judge in Medina[62] and a wazir as he was during the caliphate of Umar.
Ali rules against Uthman’s policy of discouraging Hajj Al-Tamattu and Hajj Al-Qiran
There are three types of hajj:
1- Hajj al-Tamattu means “To benefit”. This is where a pilgrim performs Umrah first and then enters a state of ihram again for Hajj.
2- Hajj al-Qiran means “To combine”. This is where a pilgrim combines both Umrah and Hajj into a single pilgrimage with one ihram.
3- Hajj al-Ifrad means “To be singular”. This is where a pilgrim performs only Hajj and does not perform Umrah.
Marwan bin Al-Hakam narrated that “I saw Uthman and Ali. Uthman used to forbid people from performing Hajj Al-Tamattu and Hajj Al-Qiran. When Ali saw (this act of `Uthman), he assumed Ihram for Hajj and `Umra together (Hajj Al-Qiran) saying, “Lubbaik for Umra and Hajj,” and said, “I will not leave the sunnah of the Prophet ﷺ on the saying of anyone.”[63]
In another narration ‘Ali said to Uthman, “What is your opinion about a matter which the Messenger of Allah ﷺ did but you forbid it?” Thereupon Uthman said: “You leave us alone,” whereupon he (‘Ali) said: “I cannot leave you alone.” When ‘Ali saw this, he put on Ihram for both of them together (Hajj Al-Qiran).[64]
Imam Nawawi (d.1277CE) explains, “Umar and Uthman used to forbid it [Tamattu and Qiran] as a form of recommendation, not prohibition. They only forbade it because Hajj Al-Ifrad is better.”[65]
In relation to Ali’s statement, “I cannot leave you alone” Imam Nawawi explains that “It includes spreading knowledge, making it apparent, debating with the rulers and others about verifying it, and the obligation to advise the Muslim in that. This is the meaning of the saying of Ali: “I cannot leave you.”
As for Ali’s declaration of their two rites, it may be used as evidence by those who prefer the Qiran, and those who prefer the Ifrad responded to him by saying that he only declared their two rites to clarify their permissibility, so that the people, or some of them, would not think that the Qiran and the Tamattu’ are not permissible, and that the Ifrad is obligatory. And Allah knows best.”[66]
Mohammad Al-Massari comments on this incident. “As for ‘Ali’s opposition to Uthman, as has been recorded in Sahih Muslim and so its extraction is Sahih. ‘Ali, may Allah be pleased with him, was not a regular person, but rather he was from the ruling apparatus. At that time, he was also the most knowledgeable of the Sahabah with the greatest understanding and absolutely the strongest judgment from among them. As such, he was by necessity, the Qadi Al-Mazalim as he had also been during the days of Abu Bakr and ‘Umar, possessing the mandatory power or jurisdiction to declare the invalidity of the adoptions of the caliph. This is one angle.
From another angle, the matter of worships are individual affairs which do not impact upon the public system and are not from the matters that the caliph has a right to adopt in, so as not to beleaguer the Ummah and afflict it with prohibited distress and hardship. The adoption of Uthman in respect to that, regardless of the validity of its content or its invalidity, was invalid from this consideration, unless it had been issued from him by way of non-binding advice and instruction, in which case there would not have been a problem in origin. As such, whoever wishes to follow it can do so and whoever wishes to act contrary to it can do so.”[67]
Mazalim under Ali ibn Abi Talib
Qadi Shurayh was first appointed by Umar as the Chief Justice of Kufa. He continued in his post until he died in 78 AH/697 CE. Ali moved the capital of the caliphate to Kufa and so Shurayh was effectively head of the judiciary during his rule.
Shurayh rules against Ali in his dispute with the Jew
The Qadi Shurayh said: When Ali was setting out to Siffin (for battle), he found that he was missing a coat of armour of his. When the war was over and he returned to Kufah, he came across the armour in the hands of a Jew. He said to the Jew, “The armour is mine; I have not sold it or given it away.” The Jew said, “It is my armour and it is in my hand.” He said, “Let us go to the Qadi.” … Shurayh said, “Speak Amir al-Mumineen.” He said, “Yes. This armour which the Jew has is my armour; I did not sell it nor did I give it away.” Shurayh said to the Jew, “What do you say?” He said, “It is my armour and it is in my possession.” Shurayh said, “Do you have any evidence Amir al-Muminin?” He said, “Yes. Qanbar and Al-Hasan (Ali’s son) will witness that the armour is mine.” Shurayh said, “A son’s witness is not acceptable on behalf of his father.” Ali said, “A man from the Garden (referring to Al-Hasan), and his testimony is not acceptable? I heard the Prophet ﷺ saying, ‘Al-Hasan and Al-Hussein are the two lords of the youth of the people of the Garden.’”[68]
The Jew said, “The Amir al-Muminin brought me before his Qadi, and his Qadi gave judgement against him. I witness that this is the truth, and I witness that there is no god but Allah and I witness that Muhammad is the Messenger of Allah, and that the armour is your armour.”[69]
As we saw previously with Umar, since the dispute involved the caliph, a separate judge had to be appointed to pass judgement.
[3] Muhammad Salam Madkur, al-Qada’ fi’l-Islam, I, 141-also quoted in Bayati, al-Nizam al-Siyasi, 286
[4] Holy Qur’an, Surah An-Nisaa, ayah 59
[5] Prof. Muhammad bin Abdullah Al-Massari, ‘Accounting the Rulers,’ Third Edition, 2002CE 1423H https://www.renascencefoundation.com, Chapter: ‘The nation’s monitoring of the rulers and holding them accountable’
[6] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.121
[7] C.A. Nallino, ‘Notes on the nature of the caliphate in general and on the alleged Ottoman Caliphate,’ a translation of ‘Appunti sulla natura del Califfato in genere e sul presunto Califfato Otttomano,’ Printed at the press of the foreign office, Rome 1919, p.7
[8] Wael B. Hallaq, ‘The Impossible State: Islam, Politics, and Modernity’s Moral Predicament,’ Columbia University Press, p.68
[15] Qintar: A weight of varying measures in different periods of Muslim history. One opinion is a Qintar (300Kg of gold) = £29million. This is for mubaalagah (hyperbole) meaning no limit.
[16] Holy Qur’an, Surah Al-Nisaa’, ayah 20
[17] Muhammad As-Sallaabi, ‘Umar ibn Al-Khattab, his life and times,’ vol.1, p.215
[19] Hugh Kennedy, ‘Caliphate – The History of an idea,’ Basic Books, 2016, p.81
[20] Muhammad ibn Yusuf al-Kindi, Kitab Al-Wulah wa Kitab Al-Qudah (The Book of Governors and the Book of Judges), https://shamela.ws/book/12831/250#p1
[21] Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p.118
[22] Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, p.55
[23] al-Tabari, ‘The History of Al-Tabari’, State University of New York Press, Volume 24, p.94
[24] Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, p.149
[25] Muhammad ibn Yusuf al-Kindi, Kitab Al-Wulah wa Kitab Al-Qudah (The Book of Governors and the Book of Judges), https://shamela.ws/book/12831/264#p1
[26] Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p. 128
[27] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ Princeton University Press, 2008, p.147
[28] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ Princeton University Press, 2008, p.6
[29] Surah Al-An’am, ayah 108
[30] Prof. Muhammad bin Abdullah Al-Masari, ‘Accounting the Rulers,’ Third Edition, 2002CE 1423H https://www.renascencefoundation.com, Chapter: ‘The nation’s monitoring of the rulers and holding them accountable’
[31] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.222
[32] Abu l-Hasan al-Mawardi, ‘The Laws of Islamic Governance,’ translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.116; https://shamela.ws/book/22881/125
Islamic Civilization 