Governance isn’t about imposing interpretations of the Shariah; it’s about taking care of society’s needs and interests

Authorities can’t impose binding religious rulings on people

Authorities have power in temporal matters, not in fiqh or religious interpretations. Their role is not to define and impose interpretations of Shariah rules on people. Imam al-Qarafi explains that the authority of those in power is in temporal issues that need to be regulated to maintain social integrity. Their authority is not over religious interpretation and observance or on matters of fatawa (religious rulings and edicts). Most of these issues are subject to differing interpretations, so no authority can issue rulings which are binding on people. So they should only engage in making binding decisions in temporal matters for the sake of public interest and maintaining political order. These decisions are based upon what is in the publics interest (maslaha). Imam al-Qarafi[1] said:

Everything that is said by an official is no more than an opinion. If such a statement agrees with the view of the one who hears them, he may follow them; if not, he may ignore them and follow his own madhab (school of thought).[2]

And:

Among their (the state or government’s) discretionary actions are their fatawa concerning the rulings on such things as religious observances and the like, eg, the licit or illicit status of some sexual arrangements; ritual purity of bodies of water; the ritual purity of bodies of objects; the obligation to wage jihad, etcetera. None of these pronouncements regarding these matters constitute binding decisions. On the contrary, anyone who does not believe these statements to be correct may issue a fatwa in opposition to that of this judge or Imam/leader. Likewise if they command us to perform an act which they believe to be good, or they forbid us to perform one which they believe to be evil, it remains the right of anyone who disagrees with them not to follow them… other than (where it is feared that) opposing the Imam will constitute an act of sedition…[3]

And:

If the Imam says, “Do not hold Friday prayer without my permission,” this would not constitute a binding decree, even if the question of whether the Imam’s permission is required to hold the Friday prayer is a disputed one (mukhtalaf fih). Rather, it remains the right of the people to hold the prayer without the Imam’s permission, unless doing so constitutes an open display of defiance; an assault upon the lineaments of proper authority… Under these circumstances, it becomes impermissible to establish the prayer without the Imam’s permission – but it is for this reason [the open display of defiance] and not because this is a disputed question in which an authority has issued a binding decree (hukm).[4]

He also elaborates that:

…matters disputed in religious observances and the like [are precluded], because conflicts concerning the latter do not involve the interests of the world (masalih al-dunya); rather they arise in pursuit of the Hereafter. So the decisions of government officials (hukm al-hakim) have no place at all in resolving such matters.[5]

Ibn Taymia[6] goes further than al-Qarafi and says that not only are such rulings not binding but that it is forbidden to issue them. When he was asked about a situation where a ruler forbids a certain transaction on religious grounds and not on the basis of public interest, Ibn Taymia was adamant that such an action is absolutely not the right of government. He replied to the questioner:

He cannot prevent the people from this, nor from the likes of this, because it is from within the permissible ijtihad (ie, it is in an area over which independent legal reasoning may be exercised). Neither does he have any text from the Book, the Sunnah or the consensus [of scholars] to prevent this, especially when most of the scholars are of the view that the likes of this are actually permissible; and this is what has been acted upon by the Muslims in their lands in general. This is just like a judge, who is not allowed to negate the judgement of others in the likes of such issues, nor is it for the scholar or the mufti to compel the people to follow him in the likes of such an issue. This is why when al-Rashid sought from Malik that the people should all adopt his al-Muwatta’ in the likes of these issues, the latter prevented him from this and said:

“The Companions of Allah’s Messenger sallallaahu `alayhi wa sallam spread out into different regions; so each community took the knowledge that reached them.”

…This is why scholars who wrote books about ordering the good and forbidding the evil – among the followers of al-Shafii and others – have stated: Indeed there is to be no forbidding with the hand in the likes of such issues of ijtihad, nor is it for anyone to compel the people to follow him in his view. However, he may speak about it with knowledge-based proofs. Whoever then sees the correctness of one of the two views, after it being clarified to him, may then follow it. But whoever follows the other opinion, then there is to be no forbidding him. And the likes of these issues are many…[7]

Ibn Taymia was himself the subject of persecution by the state because they wanted to impose their religious views on him and society. He responded:

The charges made against me do not relate to criminal acts and personal rights… that would justify judicial intervention! On the contrary, the present matter is an intellectual one of universal concern, like exegesis, hadith, fiqh, and the like. These matters include questions over which the community has agreed, as well as some over which they have disagreed. But where the community disagrees on the meaning of the verse, or a hadith, or the status of an assertion or request, the correctness of one view and the incorrectness of the other cannot be established by the ruling of a judge

Otherwise [for example] it would be possible to establish the meaning of God’s statement, “they shall wait three periods (thalathata quru’)… and the interpretation would be a ruling, binding on all people… there would be absolutely no probative value in the statement of a judge to the effect that one of these views was correct, the other incorrect.[8]

He explained his views on this issue a number of times and they can be found in his collection of religio-legal edicts (fatawa). He maintained that rulers could not specify the meanings of religious texts and impose those interpretations of Shariah so they are binding upon people.

The founder of Hizb ut-Tahrir, Taqiuddin al-Nabhani,[9] maintains that it is permissible for rulers to impose their interpretations of Shariah on people. However, his opinion is not, as one may expect, that it is obligatory (fard) to do so. He states:

…the basic rule/first principle regarding adoption [of an interpretation] is permissibility and it is not obligatory because the Companions, may Allah be pleased with them, agreed that it is up to the Imam (leader) to adopt and it is not binding upon him to do so… adoption from the perspective of the Caliph is permitted and not obligatory upon him…[10]

Nabhani’s ‘intellectual’ (as opposed to religious) view on imposing religious rules on the population is that it is bad, and that the state should aspire to adopt as few rules as possible. Nabhani explains that the enforcement of religious rules and beliefs can often create societal problems. He states that this occurred in the past, citing sectarian conflicts when sects, such as the Mutazila, came to power and tried to enforce their doctrine or version of Islamic faith on the society as a whole and had an inquisition (mihna) among leading scholars.

So we find a situation where Tahrir maintain that a land can only be Islamic if the Shariah rules are imposed[11] but at the same time they also believe that it is not mandatory to adopt any of those same rules. Presumably, they are able to reconcile these two apparently contradictory aims. In any case, we can certainly conclude that it isn’t mandatory (fard) to implement religious rules on people, whether in the tradition of Islamic jurisprudence or in the (apparently contradictory) thought of Nabhani.

Historically scholars discouraged and forbade rulers from adopting and imposing religious rulings

Not only is it not obligatory, but we can see examples in the past when the scholars have tried to stop the imposition of Shariah rules, like in the case about Imam Malik mentioned by Ibn Taymia above. This case is also mentioned in the three narrations below. Each emphasises a particular aspect of the situation.

It was related that Abu Jafar al-Mansur said to Malik: “I want to unify the knowledge. I shall write to the leaders of the armies and to the rulers so that they make it law, and whoever contravenes it shall be put to death.” Malik replied “O’ Amir ul-mumineen (Commander of the Believers)! There is another way! Truly the Prophet (pbuh) was present in this community, he used to send out troops or set forth in person, and he did not conquer many lands but that Allah took back his soul. Then Abu Bakr (radiAllahu’anh) arose, and he also did not conquer many lands. Then Umar ibn al-Khattab (ra) arose after the two of them and many lands were conquered at his hands. As a consequence he faced the great necessity of sending out the Sahabah (ra) of the Prophet (pbuh) as teachers and people did not cease to take from them, notable ulema from notable ulema, until our time. If you now go and compel [force] them from what they know to what they do not know, they shall deem it kufr! Rather, confirm the people of each land with regard to whatever knowledge is there and take this knowledge to yourself!”[12]

In another narration al-Mansur said to Malik:

“I have resolved to give the order, that your writings be copied and spread to every Muslim region on the face of the Earth, so that they may be put into practice exclusively and prevent other rulings being practiced. They will leave aside innovations and keep only this knowledge, for I consider that the source of knowledge is the narrated tradition of Madinah and the knowledge of its Ulema.” Malik replied; “O’ Amir ul-Mumineen! Do not do so! For people have already heard different positions, heard hadiths and related narrations. Every group have taken whatever came to them and put it into practice, conforming to it though others differed. To take them away from what they have been professing will cause a disaster! Therefore, leave people with whatever school they follow and whatever the people of each country choose for themselves”. Al-Mansur said; “I swear by my life! I would have commanded it if you would have let me!”[13]

Another narration states that ‘one of the khulafa (Caliphs)’ said to the noble Imam of the Holy Sanctuary:

“Work with me! For I have resolved to make the Muwatta law, in the same way Uthman (ra) made the Qur’an law for them.” Malik replied, “There is no way for you to do this! For the companions of the Prophet (pbuh) scattered east and west after his time and narrated from him; consequently the people of every region possess knowledge.”[14]

Halal and haram is not the same as legal and illegal

The outcome of the Islamist’s desire to implement the Shariah on people, is the equation of the halal and haram (religiously permitted and prohibited actions) with what is legal and illegal in temporal terms. In practice this means that the state would seek to punish people who had committed a ‘sin’ by doing something actually considered to be religiously prohibited (haram). Of course, this really means that the action is haram and blameworthy in the state’s view. As it did in the past, this would inevitably lead to tyranny over those who differed with the state in their religious views, for the reasons explained earlier by al-Sarakhsi and others.

Ibn Taymia explained that if the rulers permitted something, this did not equate with the action being halal. That is, the idea of an action’s legal permissibility (that is, in terms of temporal sanction) is different from the idea of the same action being halal. Similarly, the idea of an action’s legal prohibition (temporally) is different from the idea of the same action being haram. He makes it very clear that defining legal permissibility and prohibition must take into account the benefit and harm (maslaha and mafsada) that results from any such permission or prohibition. In this lengthy quotation from Ibn Taymia, it is clear that the religious prohibition of a matter by no means equates with it being forbidden by the state. Likewise it should also be clear that something lawful under the state (ie, there is no state censure or sanction) is not necessarily halal in religious terms.

We find that Umar ibn al-Khattab employed someone in public office who had an element of depravity, due to the preponderance of the maslaha (interest) of his labour. However, he managed, by his strength and justice, to make the man cease his corruption.

[Another] case in hand would be for someone to embrace the faith of Islam on condition that he prays only two prayers, as is related regarding a man in the time of the Prophet (pbuh).

So too would it be for someone who, having embraced Islam, drinks wine or undertakes other forbidden actions, which if prohibited to him may make him apostatise from Islam.

So there is a differentiating factor [to consider] for a ruler or scholar, between prohibiting [or not prohibiting] a thing to some people, when doing so entails a greater mafsada than the act of making it halal.

This will also vary from one situation to another: it may entail making the prohibition public so that it may be known and persuades people to abandon it; or become fearful of performing it; or in the hope people will abstain; or expressing indignation (inkar) towards the act; all of these (and other responses) will vary from situation to situation.

This is why we find the various different approaches taken by the Prophet (pbuh), whether it was him enjoining the maruf or forbidding the munkar (evil), waging jihad, exonerating the act, imposing a penalty, or being exacting or merciful.[15]

It is clear from this and from what has been cited previously that Ibn Taymia’s view is that permission and prohibition in the temporal sphere cannot be justified solely on the basis of the ruler’s understanding of the religious aspect (halal vs. haram) of the issue in question. Any permission or prohibition in the temporal sphere can only be legitimised through considering the public benefit and harm of the legal decision.

What may we conclude from all this? At the very least we can say that the issue is far from definitive (qati), against what Tahrir and others would have people believe. Both religious and practical consideration should be given to the public interest in creating legal permissions and prohibitions, rather than simply equating the two.

Imam al-Qarafi gave the demerits of equating halal/haram with legal/illegal from a slightly different perspective. He said that punishing people for what may be wrong has no use because in many cases the ‘blameworthy action’ had no worldly consequences and that the determining factor in punishment should be the worldly consequences of the action and not the religious dimension.[16] He also says that the disputation of religious matters is unconnected to temporal life and is related solely to the hereafter:

Conflicts concerning scriptural sources… and the like, arise strictly out of the pursuit of the affairs of the hereafter, not out of pursuit of any benefit that is to accrue to any of the disputing parties here and now. No; disputes concerning these matters are in the areas of religious observances. For the goal of each disputant is to establish, according to the Shariah, what is binding upon every legally responsible person (mukallaf) until the Day of Judgement, not simply to establish what is (binding) upon him only (here and now).[17]

Looking after the interests of people and society

…the interests of the Shariah (masalih al-Shariah) are the preservation of religions (in the plural), lives, intellects, lineage and property.

– Imam Qurtubi

To elaborate this further we can go the writings of Imam al-Izz bin Abdul Salam, the famous Shafii legal philosopher. He explains that adopting the people’s interests necessitates securing these interests and preventing what is contrary to them, even though that may involve stopping people from doing things that are religiously permitted, such as engaging in armed insurrection using a mistaken religious justification. Another example is the authorities preventing or permitting people drinking alcohol irrespective of the people holding a valid opinion either way.[18] The ruler may forbid people from drinking alcohol or he may permit it, with the point always being to look after the interests of the community in the best possible way irrespective of religious grounds for or against his view.

He may even permit some lesser harms to prevent greater harms or abandon some lesser interests in order to realize greater interests as the Messenger (pbuh) did and as was manifested in the revelation throughout the time of prophethood.[19]

In the same text Imam al-Izz bin Abdul Salam goes on to explain that you may forbid things which are halal yet not forbid things which are haram, as it is not in the interests of the people to do so. Therefore, taking part in the political process is not enforcing, or based upon enforcing, the Shariah but rather it is looking after society’s interests. On this basis, government is free to base its prohibitions upon interests rather than the position of madhahib (schools of thought) or religious rulings and is free to forbid things which are halal or not make things illegal (even those which are haram) based upon interests. This is in agreement with what has been cited from Ibn Taymia previously.

Furthermore, he says laws are passed based upon public interest and common values not specific to the Islamic faith because the public interests (masalih) are known rationally and customarily and are also known to people without revelation. The Imam explains this in his work stating:

The masalih (interests) and mafasid (harms) of this world and their means are known by necessity, experience, custom and careful conjecture (zann). If any of that is ambiguous, its meaning should be sought from it proper proofs. Anyone seeking to know how to distinguish between the masalih and the mafasid and which outweighs the other, must submit it to the test of reason on the assumption that the Shariah has not mentioned it. Let him build his judgements on it; he will discover that almost none of them violates the rules of the Shariah except the prescriptions and proscriptions that God has imposed on His Servants as merely devotional matters without revealing to them the relevant aspects of the maslaha or mafsada.[20]

Hence it is upon the basis of common values and interests that political participation can take place, across different religions and cultures.

______________________________________

[1] Shihāb al-Dīn al-Qarāfī or in full Shihāb al-Dīn Abū al-’Abbās Aḥmad ibn Idrīs (al-Sanhaji al-Bihinsi al-Misri) al-Qarāfī (1228 – 1285), was a Maliki jurist of Berber (Sanhaja) origin who lived in Ayyubid and Mamluk, Egypt. He was born in the Bahnasa district of Upper Egypt reportedly sometime around 1228. He was a Maliki Mujtahid Imam.

[2] Anwar ul-Buruq fi anwa al-Furuq, 4:48.

[3] Ihkam fi al-Tamyiz al-Fatawa an al-Ahkam wa Tassarrufat al-Qadi wal-Imam, Maktabat Matbuat Islamiya published in 1967, Allepo 182-82.

[4] Anwar ul-Buruq fi Anwa al-Furuq, 4:49.

[5] Ihkam fi al-Tamyiz, 23-24.

[6] Taqi al-Din Ahmad ibn Taymia (1263–1328), was a Sunni scholar born in Harran, located in what is now Turkey, close to the Syrian border. He lived during the troubled times of the Mongol invasions. As a member of the school founded by Ibn Hanbal, he sought the return of Islam to its sources, the Qur’an and the Sunnah.

[7] Majmou al-Fatawa, 30: 79-80.

[8] Majmou al-Fatawa, 3:238-9.

[9] Taqiuddin al-Nabhani (1909–1977) was a teacher, judge and lecturer in Islamic sciences. He established the group Hizb ut-Tahrir in 1953. He was the grandson of the famous hadith scholar Yusuf al-Nabhani.

[10] Muqadima al-Dustur (Introduction to the Constitution or the Reasons That Make it Obligatory) Hizb ut-Tahrir, 1963.

[11] See the discussion in the later Chapter, ‘Is the land dar al-kufr even if we can manifest and practice Islam?’

[12] Narrated from Utba ibn Hamid al-Qari al-Dimashqi by Ibn Abi Hatim al-Razi in his introduction to Jarh wa al-Tadil, p. 29.

[13] Narrated from al-Waqidi by Ibn Sad in the supplemental volume of his Tabaqaat p. 440. Also from Zubayr bin Bakr by Ibn Abd al-Bar in his Intiqa p. 81.

[14] Narrated by Abu Nuaym in his Hilya ul-Awliyah ed. 6/331.

[15] Majmou al-Fatawa, 35: 31-32.

[16] al-Furuq part 4, supranote 224 at 181.

[17] Ihkam fi al-Tamyiz, p. 75.

[18] for a discussion about the different views see Ahkam ul-Quran, vol. 1, p. 322 of Imam al-Jassas.

[19] al-Qawaid ul-Ahkam fi Masalih ul-Anam, p. 120.

[20] al-Qawaid ul-Ahkam fi Masalih ul-Anam, p. 13.

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