Al-Akham as-Sultaniyyah - The Laws of Islamic Governance

[faqir]

al-Ahkam as-Sultaniyyah

The Laws of Islamic Governance

Abu'l-Hasan al-Mawardi





The Book:

Al-Ahkam as-Sultaniyyah is both the single most comprehensive account of the workings of the Islamic governance and equally a highly influential theoretical outline of that governance. It is also as it were a snapshot of the inner workings of Abassid power at its height. Woven throughout it are the accounts of the first community of Islam and the judgements of the early scholars of the salaf which are the book's lifeblood and its light.

The Author:

Abu'l Hasan al-Mawardi (d.450 AH) was a practising Qadi whose excellent judgement earned him the soubriquet "The Most Judicious of Qadis". Given that the role of Qadi far exceeds that of "judge" the author was well placed to describe the workings of power from withing. Along with that, his excellence as a scholar allowed him to produce a work which is one of the undoubted classics of Islam.

The translator:

Dr. Asadullah Yate gained his PhD from Cambridge with his dissertation on Ibn Rushd as Jurist. He has succeeded admirably in translating this work accurately and in making it entirely readable.

[faqir]

"And if you rule between people then rule with justice"
(The Noble Qur'an, Surah al-Mai'dah:42)


Taken from Chapter 1: The Contract of Imamate


Imamate is prescribed to succeed prophethood as a means of protecting the deen and of managing the affairs of this world. There is a consensus of opinion that the person who discharges the responsibilities of this position must take on the contract of Imamate of the Ummah - although Asam, exceptionally, differs on this matter. There is a difference of opinion, however, as to its obligation, that is, as whether it is obligatory for rational reasons or because it is prescribed in the Shari'ah. One group of fuqaha says that it is obligatory for rational reasons because of the natural inclination of men and sound mind to submit to the authority of a leader who thereby prevents mutual injustice and who decides between men in cases of dispute and quarrel - for without governance, disorder and barbaric behaviour would arise amongst the wanton and lawless. As the pre-Islamic poet al-Afwah al-Awdi has said in his poem:

There is no benefit to a leaderless people when disorder reigns, and they will never have a leader if the ignorant amongst them leads.



Another group say that it is obligatory because of the shari'ah rather than for rational raeasons: The Imam carries out the affairs of the Shari'ah and it is rationally conceivable that they undertake this Imamate as a form of worship without the option of being able to refuse it; thus the intellect is not instrumental in rendering it obligatory.



The intellect obliges each person of sane mind to avoid mutual injustices and the breaking of social ties, and to fulfil the exigences of justice by dealing equitably with people and by maintaining social contracts: this he organises by means of his own intellect and not someone else's intellect. It is the Law, however, which has delegated affairs to those who wield authority over them in matters of deen - Allah, may He be exated, has said: "O you who believe, obey Allah and obey the Messenger and those in authority amongst you" (Qur'an 4:62). Thus He has imposed on us obedience to those in authority, that is those who have the command over us. Hisham ibn 'Urwah has related from Abu Salih from Abu Hurairah that the Messenger of Allah, may Allah bless him and grant him peace, said: "After me governors will rule over you and those who are upright will rule you by their uprightness and those who are corrupt will rule you by their corruptness: listen to them and obey them in everything compatible with the truth - if they are correct in their dealings then it will be to your benefit and theirs, and if they act incorrectly then that will still be to your benefit (in the next world) but will be held against them."

[faqir]

Having established the obligation of Imamate it must then be known that it is incumbent in a social and a collective way, like the Jihad and the acquisition of Knowledge- that is if one person who is competent in the matters takes it up, the obligation is removed from the rest of the community; if no one takes it up, two parties may be distinguished as responsible for making this choice among the people: the first, those who are worthy of choosing an Imam for the Ummah and second, those who themselves are worthy of the office of Imamate.

No Pressure is to be applied, and no sense of negligence is to be ascribed, to anyone else outside of these two parties regarding choosing the Imam.

Once these two parties have been distinguished `from amongst the ummah with respect to the election of the Imam, it is necessary to assess each of the two parties according to the conditions which are binding in this matter.



There are three conditions regarding those eligible to make the choice:

1.That they must be just and fulfill all the conditions implied in this quality;

2.That they possesses a knowledge by which they may comprehend who has a right to the Imamate and that they fulfill 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.


Those living in the Country of the Imam do not possess any advantage over those living in other countries: it is rather that someone resident in the Country of the Imam contract to elect the Imam by custom not by any legal imposition of the shari'ah; moreover such residents will come to know of the death of the Imam before people from other countries and usually the person who is most fitting for the succession is to be found in the Country of the Imam.



There are seven conditions regarding those suited to the Imamate:

1. Justice together with all its conditions

2. Knowledge which equips them for Ijtihad in unforeseen matter and arriving at relevant judgments

3.Good health in their faculties of hearing, sight and speech such that they may arrive at a sound assessment of whatever they perceive

4.Sound in limb, free of any deficiency which might prevent them from normal movement;

5.A judgment capable of organising the people and managing the offices of administration;

6.Courage and bravery enabling them to defend the territory of Islam and mount the Jihad against the enemy

7.Of the family of the Quraysh, because of the text (of a prophetic hadith) on the matter and by virtue of consensus.. No credibility should be given to the opinion of Dirar who is alone in saying that the post is open to all;

Abu Bakr as-Siddiq, may Allah be pleased with him, used the testimony of the Prophet. may the peace and blessing of Allah be upon him, against the Ansar on the occasion of Saqifah when the latter defended the succession of Sa'd ibn Ubadah to whom they had given allegiance, in his saying , " The Imams are of the Quraysh" As a result of this the Ansar renounced their exclusive claim to this Imamate and renounced the claim to share the rights of the Quraysh explicit in their saying " From amongst us an Imam and from amongst the Quraysh an Imam"- submitting thereby to this narration and affirming its content and accepting the following reply of Abu Bakr " From us the amirs and from you the Wazirs" The Prophet may the peace and blessings be upon him said " Give precedence to the Quraysh and do not put others before them" There is not the least doubt or controversy attached to this impeccable text.

[faqir]

[continued from Chapter 1]

Imamate comes into being in two ways:

The first of these is these is by the election of those of power and influence, and the second is by the delegation of the previous Imam.

As for its formation by the election of the people of power, the Ulama according to the different madhabs have different opinions as to the number of persons needed in the formation of the Imamate.

One groups says that it can only be conferred by way of the majority of those of power and influence in each country, such that acceptance is general and submission to the Imamate is by consensus; this madhab is rejected by the oath of allegiance to Abu Bakr, may Allah be pleased with him, that is to a succession arrived at by way of the election of only those who were present: they made the oath of allegiance to him and did not expect any other person from outside to present himself for this election.

Another group say that the minimujm number of persons that should gather for the formation of the Imamate is five or that it should be formed by one of them with the agreement of four others. They take two matters as their proof: the first that the oath of allegiance to Abu Bakr, may Allah be pleased with him, was made by five persons together and that the people followed them in this matter. These persons were Umar ibn Khattab, Abu Ubaidah ibn al-Jarrah, Usayd ibn Hudayr, Bashir ibn Sa'd, and Salim the freed-slave of Abu Hudhayfah, may Allah be pleased with them. The second proof is that Umar set up a council of six persons so that one of them should take on the Imamate with the acceptance of the other five - and this is the opinion of most of the fuqaha and the mutakallimun from amongst the people of Basra.

Others from amongst the Ulaqma of Kufa say the Imamate comes into being by way of three persons, one of them taking charge by virtue of the acceptance of the other two such that there is one who decides the matter together with two witnesses, in the same way as the contract of marriage is made valid by the man in charge (the wali) and two witnesses.

Another group says that it comes about by way of a single person as Abbas said to Ali, may the pleasure of Allah be upon them both, "Reach out your hand so that I may make allegiance to you and that the people say that the uncle of the Messenger of Allah, may the peace and blessings of Allah be upon him, has given allegiance to his paternal nephew and so that there will not be two persons disputing your succession." They also that that it is a ruling which when given, even by one person, has to be carried out.

[faqir]

........ end of quote from Imam al-Mawardi's book!



From another article http://bewley.virtualave.net/Page2.html by Ustadha Aisha Bewley.........

Which brings us to the ruler, or to the state which has taken the place of a particular ruler. Rather than being the extractor and exploiter, in a natural state the ruler is viewed as the protector of those under him, the one who ensures that justice is done and everyone with a due receives what is due to him. He is a responsible guardian. To give a concrete example of this, the word used by the first Khalif, Abu Bakr, in referring to himself, and a word that is frequently used for governors, is wali, which means a guardian, heir, or executor. He is someone who manages things for a person in their best interests. As an example of the proper attitude of a ruler, it would do well to quote what he said to the people when he became Khalif. He said:

O people! I have been put in charge over you, but I am not the best of you. If I act well, then help me, and if I act badly, then put me right. Truthfulness is a trust and lying is treachery. The weak among you is strong in my sight until I restore his right to him, Allah willing. The strong among you is weak in my sight until I take the right from him, Allah willing. People do not abandon jihad in the way of Allah but that Allah afflicts them with humiliation. Shamelessness does not spread in a people but that Allah envelops them in affliction. Obey me as long as I obey Allah and His Messenger. If I disobey Allah and His Messenger, you owe me no obedience. (Sira Ibn Hisham)

There is reciprocity between ruler and ruled. The Prophet clearly stated, 'An imam is a shepherd and is responsible for his flock.'

Otherwise governance becomes unlawful tyranny, and in a natural state when the ruler becomes the extractor and exploiter rather than the protector, that is recognised as being wrong. In other words, the ruler would have then left the bonds of loyalty. As Blackstone defines this in Commentaries on the Laws of England (1765-69), Book IV, Ch. 1:

[Allegiance to the tie...] which binds every subject to be true and faithful to his sovereign, in return for that protection which is afforded him; and truth and faith to bear of life and limb, and earthly honour; and not to know or hear of any ill intended him, without defending him therefrom.'

And what of abuse of power? In Islam, tyrannical oppressors can be overthrown. There is a definition by 'Uthman dan Fodio about when such a course becomes necessary. This is also interesting. It arises when: 'Secular laws are substituted for the Shari'a, pagan customs and behaviour replace Islamic morality; oppressive taxation, usurpation and the confiscation of property replace the Islamic system of taxation and fiscal policies, and Islamic inheritance laws are abandoned in favour of pagan whims.' The transformation described could easily be transposed to the European situation.

For Muslims in cases of injustice, there is access to the qadis or judges, for the ruler is not above divine law. For the pre-feudal society, as in Ireland, there was the brithem or jurist who expounded the law - and the brithem was liable for damages if he gave a false judgement. Even within the feudal system itself, the theory was still there (as in the case of John of Salisbury), but it had been superseded by the imperial model taken from Rome.

The law was not imposed from the top. The ruler did not pass laws and then impose them on the people. In Islam, it is of divine origin. The sole function of governance is to enable the individual Muslim to practise his Deen and to fulfil his obligations to Allah, which includes what is due from him towards other members of society. This, at the bottom line, is the sole purpose of any 'state' for whose purpose alone those in authority possess any authority over others. The worth of the government can be measured by how much this is achieved. The state as an institution in its own right is a usurpation of God's sovereignty. It has no intrinsic authority on its own. By definition, a Muslim 'state' CANNOT enact laws.

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My 11 month year old's first post on sunniforum



From The Guidinghelper site:




Obey the Khalifah and Islamic Ruler 2542. 41:1703

He has to have knowledge and be a believer 2543. 41:1704





2542 It is wajib for the Muslims to have one and only one Khalifah or supreme Islamic government leader for the world. This person may either be elected by a majority of people, selected by a small group of pious leading Muslim officers, or named as the successor of the previous Khalifah by the Khalifah himself (in the case of his death or incapacitation).

Once the Muslims (or a large section of them) have decided upon a Khalifah, it is not valid to appoint another Khalifah (anywhere in the world) or to refuse to obey this one (even if he is not the best man present).

[Additionally, any other man who subsequently claims to be the rightful Khalifah may be lawfully killed.]

If by mistake or on purpose two more Khalifahs are simultaneously chosen, one of them should resign (if one of them does not voluntarily step down, they must both draw lots or flip a coin once together to see who will leave and who will remain). If the extra Khalifah who is chosen to be ejected from office (e.g., by drawing lots or picking a name out of a hat) refuses to leave, then he may be lawfully killed.



In order to have a Khalifah, the Muslims must have a section of territory (even if as small as a city) which is under their complete jurisdiction (and is free from answering to any third party or other world government agency).

If the Muslims do not have such a territory, then the Khalifah's position is not valid.


Once a valid Khalifah is chosen, it is wajib for every citizen (male and female) to obey him in the things that the citizen likes and in the things that the citizen dislikes (as long as the Khalifah does not command one to clearly disobey Allah (as Allah has authority over him)). It is absolutely unlawful to try to overthrow the government of the Khalifah (even if it is corrupt) as long as his government establishes the wajib acts of our din (e.g., prayer, Zakat, Fasting, Hajj, laws of business and justice, etc.) and no clear sign of disbelief is seen from the Khalifah (e.g., he claims that there are gods besides Allah).

The Khalifah is given the power to put down armed insurrections with force (however, he is not given the power to prevent people from peacefully speaking out against the wrongs of his government).

The citizens should not riot if they feel that the Khalifah's government is neglecting them; rather, they should set up private institutions to meet their needs and the Khalifah should allow them to do such (as the government cannot take care of everything (and less should be expected from it)). From this you see that in our din the Khalifah's government does not manage every single aspect of the lives of the citizens (e.g., social and economic); rather, the private sector (i.e. individual people and organizations) may handle the social and business affairs of the citizens (from non-centralized locations).






2543 The preconditions for the Khalifah are:

a) He must be male (no females may take public government leadership positions in our din (however, females may take private or social leadership positions (e.g., head of a business or
social organization)).

b) He must be past puberty (no children are allowed).

c) He must be sane (please refer to footnote 71).

d) He must be upright (i.e. he must pray five times a day, try his best to perform all the wajib
acts, and stay away from all unlawful acts in our din).

e) He must be Muslim.

f) He must be a scholar of the din (i.e. he must know Arabic, have a firm grounding in the
primary texts (i.e. Qur'an and Ahadith), and must have studied texts like al-Murshid al-Mu`in,
Mukhtasar Khalil, and Tuhfah al-Hukkam which completely cover all three aspects of our din
(please refer to footnote 248)). [The Khalifah should also keep a counsel of pious scholars of the
din to consult with on major issues.]

g) He must be fully able to discharge the duties of the office without
physical help (i.e. he should
be independent).

h) It is better if the Khalifah is a descendent of Nadr ibn Kinanah (the father of the Quraysh
tribe); however, a non-Qurayshi or non-Arab Khalifah is also valid.

i) He must not desire or want to be the Khalifah. Anyone who desires the office of the Khalifah
is automatically disqualified. Rather, he should be put in office against his own will. From this,
you see that political campaigning is not part of our din.


If the Muslims agree on someone who does not fulfill all the requirements/preconditions of the Khalifah's office,
then this agreed upon person should be accepted (even though he may be ignorant of the laws of the din or be a
non-Arab). This is because in our din we prefer that the Muslims are in harmony and not fighting each other
even if fighting may lead to a better Khalifah (or government).



As for the method of ruling, the Khalifah may employ any of various allowed techniques.

Most Khalifahs in the past have set up a hierarchical structure of government; the territory under jurisdiction is divided into sections
and a sectional ruler is appointed over each section. Now this sectional ruler may further divide his territory
into subsections and appoint smaller sub-sectional rulers over these smaller pieces of territory (and the process
may continue). Thus, the Khalifah will have power and rule over the entire territory whereas the sectional rulers
will only have power over their particular section.

The Khalifah should set up one independent (i.e. independent from the government) central establishment of
scholars which give legal rulings for new affairs. Having one central establishment for legal rulings will prevent
the citizens from being in confusion and prevent unqualified would-be-scholars from causing tribulation/turmoil
with stray opinions. This legal rulings establishment may not make any laws that conflict with the known laws
of the basic parts of our din.


The main job and goal of the Khalifah is to establish and promote the din that the Prophet (May Allah bless him
and give him peace) brought to us. Thus, he should facilitate the practice of all aspects of the din (by making it
easy) and discourage the violation of the public aspects of the din (by making it hard). The goal of the Khalifah
is not to increase the wealth of the state or to further its technological progress (however, such may be pursued
in an attempt to ward off external or internal threats to the Islamic territory and government).

[faqir]

An interesting post on the Bewley yahoogroup:

As Salaamu Alaikum Sidi Isa,

As for the legitimacy of the Sokoto Khilaafah:

"Shaykh `Uthman dan Fodio in his book Bayaan al Wujuub al Hijrah quoting from the book Diyaa' al-Khulafa' said that the
required qualifications of an Amir are eleven. He must be:
1. a Muslim;
2. a just man;
3. male;
4. a freeman;
5. adult;
6. of sound mind;
7. a mujtahid (one qualified to give independent judgments in
both the `roots' and `branches' of the law;
8. courageous;
9. a man of sound judgment and diplomacy in handling affairs;
10. a man able to execute his decisions and commands;
11. in the case of the supreme Imam (Amir ul-Mu'mineen) he has to be from the tribe of Quraysh if one can be found who fulfils the
previous requirements; otherwise he should be from Kinana; in the absence of such a Kinani, he should be a descendant of Ismaa'eel;if such a person is not to be found, the a non-Arab should be installed.

It should be noted here that there is a difference of opinion –
among the classical, upright scholars - regarding points seven through eleven."

The Sokoto Caliphate fulfilled all 11 of these conditions.





As for mulitiple Khalifahs or Amir-ul Mu'mineens:


"In his book Bayan Wujub al-Hijrah `Ala `l-`Ibad in the
chapter dealing with the qualifications required in an Imam he said,


"I add that a further condition is that there should be only one imam, according to what al-Ubbi quoted from al-Amidi at the beginning of [his commentary on] the chapter on the imamate in Muslim's Sahih. Al- Laqqani mentioned in his Ithaf: `According to ijma', it is not permitted for there to be more than one imam at the same time and in the same place. For the Prophet said, "Whoever pledges allegiance to an imam, giving him his hand in ratification thereof, and pledges his sincerest agreement, must obey him to the best of his ability. If another comes to contest [the office] with him, strike off the latter's head"; and in another rescension, "strike him with the sword, whoever he may be." But al-Ubbi quoted Ibn `Arafa as saying that the tradition "if two caliphs are paid allegiance to, kill the second one" is only with respect to the place where the authority of the imam has reached, but as for a distant place, far away from the sovereignty of the imam, it is permissible to appoint there another imam from that particular region.'""


Remember, these are the words of those qualified to speak on this subject. Not opinions of common people like us. For a historical example of the implementation of this point I site the following:

"In 1493 Askiya Muhammad conquered the Sonni dynasty and thrust Songhay and the Bilad as-Sudan into the most prosperous and illuminating period ever known in that region. Askiya Muhammad made his pilgrimage in 1497, and was appointed the Khalifah of the Bilad as-Sudan by the Sharif of Makkah and the Abbasid Khalifah in Egypt. On his return, he conquered most of the Sudanese kingdoms and created the most extensive Islamic empire to ever exist in Africa. Some of the most illustrious scholars of the time advised and counseled Askiya Muhammad on the duties and responsibilities of government.

Clearly, Songhay under Askiya Muhammad was a theocracy formulated and built upon the fundamentals of Islam. The ulamaa' and fuqaha had autonomy and legislative powers in the state which amounted to the executive government surrendering its authority to the judiciary.
The affairs of the state prospered under the Askiyas until around 1591, when corruption began to set in and international changes began to impinge upon events in Songhay."

Also the Sokoto Chaliphate was recognized (in writing) by the
Ottomans, Amir of Morroco and even the Kuffar - the Queen of England at that time (there was correspondence between her & Muhammad Bello).
If one is familiar with the history of Bilad us Sudan (Black Africa) it seems as if the Amirs & Khulafa' always enjoyed some sought of autonomy from the prevailing (or dominant) empires (Ummayad, Abbasid, etc...). This is part of an inner & outer manifestation of one of the promises that was made to the Negus of habisha by the Messenger of Allah, may Allah bless him and grant him peace. I could use that as proof of the legitamcy of the Sokoto Khilafah as well but that would make this email longer than it already is.
I apologize for taking so long to respond but I had problems
accessing the Yahoo groups page for some reason & I didn't want to just reply to the email because it seems as if when I "copy & paste" and send it to Bewleyupdates it comes out all jumbled up and hard to understand.

Your Brother,
Na'eem Abdullah

[Omar HH]

Jazakallahu Khayrun