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Civil Society and the Social Contract – A Muslim Perspective

Teddies, Shariah law and civil society

Tue 04 Dec 2007


The early release of Ms Gibbons and 'pardoning' of her 'crime' by Sudanese president Omer el-Bashir has been welcomed by all. This was after the hard work of the two Muslim peers Lord Nazir Ahmed and Lady Warsi.

Lord Nazir issued a statement, saying that the misunderstanding is over. Gordon Brown said that she never should have been arrested. The Sudanese ambassador said the pardon meant that the initial error had not been 'forgotten', rather it was 'forgiven', whilst maintaining the original 'mistake' - and the conviction therefore - still 'stood'.

This, however, does not really address a number of fundamental questions; amongst them: Muslims may well belie the relationship between such an incident and Islam, but how does it take place in the name of Islam? What if she was guilty? Do Muslims advocate flogging and imprisonment in that case? It seems in some circles they go even further. "Moderate" Islamist movement leaders such as el-Sheikh el-Nur of the Muslim Brotherhood added, "If she intended the prophet by naming the teddy bear, she should be killed".

In the same vein are punishments such as amputation of limbs, stoning of adulterers, and lashing/imprisoning/killing those that dare name a teddy bear Muhammad. Are these really aspects of Islam, and the "Shariah" that are essential aspect of divine wisdom, as understood by Muslims?

Muslims and Muslim scholars have attempted to address this and many other issues that pertain to Muslims, Islam and modernity and civil society, but the question still arises amongst Muslims and mainly propounded by Islamists. Muslim scholars have traditionally viewed the Shariah as seeking to preserve certain fundamental goals (Maqasid) as vital necessities, upon which the whole of the Shariah is built and in fact the rest of the rules are just means (Wasail) to realize them.

These would be the preservation of religion, intellect, family/lineage, life and property. Muslim theologians also believe that these are universal values. Muslim scholars have explained that these aims are fundamental interests (Masalih) that societies seek. And the rest of the rules were means to do so.

So Muhammad (saw) organised his community, alongside the Jewish tribes, and polytheists by negotiating an agreement in Mithaq ul-Madinah 'The document of Madinah'. This was in his time, and situation, how best to realize these aims. He described the Muslims, Jews and Polytheists who were signatories to this document as 'one Ummah, separate from the rest of mankind' and incorporated a plurality of legal traditions including Jewish and Polytheistic local tradition e.g. blood money (see Ibn Hisham).

The Prophet made other agreements; He agreed with the tribe of Thaqif that they would have their own leader for prayer from amongst themselves, they would not join the congregation of Madinah, they would not pay the Zakat (alms) nor would they take part in the Jihad (armed conflict) alongside the Muslims (Sunan Abu Dawud).

Muslims maintained this political tradition. They asked Abu Bakr to appoint the next leader to prevent the discord that occurred after the appointment of Abu Bakr. Umar separated the power of judging from the governors to ensure justice. The Muslims appointed Uthman, after Umar had restricted the nominees, on condition that he follows the rules and laws of Abu Bakr and Umar (See Bukhari). The court of Mazalim (Unjust Acts) was established by the Abbasids (al-Qadi al-Mawardi the judge and writer notes this was an imitation of the Persian system present at the time) to bring about justice and account the governors.

Al-Mawardi describes in his work both the functioning of polity in his time, and dictates some rules pertaining to them. He gives an incident where Judge (Qadi) Abu Yusuf was adjudicating in a case with competing interests. The Qadi informed the Caliph, Harun al-Rashid who advised discretion by not imposing the old traditions in a manner that would create political discord, as it was completely out of sink with the views of Society. Imam al-Mawardi states that Abu Yusuf did so, and that this is perfectly permissible as it was aimed at seeking Muslims’ interests (Maslaha - see Ahkam al-Sultaniyah). In the same context Imam Ahmed al-Hadawi al-Murtada explains that the 'Hudood' ("prescribed punishments") should be dropped when there is an interest (Maslaha) in doing so (See 'al-Azhar').

In today's day and age, we can have various means to ascertain lineage and parental responsibility, maintenance measures; DNA testing involved in detecting crimes and various means of rehabilitation; a developed and developing understanding (there is still huge disparity in the West between salaries across gender) of the social value of women in the work place and their understanding of socio-economic-political matters - we can seek to redress any imbalances and outdated or outmoded expressions of the means by which the these important goals (Maqasid) are realized. All of this can be realised away from the influences of the medieval mindset. We can relieve ourselves of ancient and outmoded punishments, such as 'flogging' and 'stoning' as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).

Professor Imran Khan Nyazee in his work 'Theories of Islamic Law', explains that today we should re-evaluate the disparity between female testimony, their apparent economic value as being equal to that of men, and more importantly, the most appropriate political system as a democratic political system which would facilitate the best means of Muslims realizing the above aims in a just political order.

It should also be clear that the Prophet and the early Muslims were able to establish a 'social contract' that facilitated harmony in their own societies, allowing the political means to develop pragmatically, as necessitated. Where are we in this respect? How close are we to developing our own 'home-grown' organic conception of civil society and develop a discourse where we can replicate the same notion of 'Ummah', that the Prophet (saw) managed to create in multi-faith Madinah, whilst maintaining social cohesion? This for me is the question of our age.

Rashad Ali

Civil Society – Addressing Apparent Islamist Grumblings

Islamists' objections to civil society and political agreements centered around a number of issues, such as the references for particular points, for example: the development of political and judicial systems; the view of the Zaydi Imam on Hudood implementation; Social Contract as a principle; determining an Interest (Maslaha); and the “Hadd” or ordained punishment for blasphemy.

To start with the historic development of the political and judicial systems, Professor Imran Ahsan Khan Nyazee [1]states:

“For example, we know that certain institutions existed from very early times. These, among others were the Mazalim courts (Courts of Unjust Acts) and the institutions of Hisbah (spot checks). Muslim jurists almost never mention these institutions in their law books, not even to declare them legal or illegal according to the Shariah. It was al-Mawardi, followed by Ibn Khaldun, who mentioned these institutions in some detail in his book al-Ahkam al-Sultaniyah… It also appears that the personality of the ruler has always been deemed more important than sound institutions… It also becomes obvious that what is binding upon us is the fixed part of the law. Nothing is binding upon us from the flexible sphere that changes with the times, unless we consciously follow a system of precedents. If the rulers in the earlier ages chose to establish Mazalim courts, it is not binding upon us to do the same. We can possibly establish better and more effective institutions today…”

It is well known that the political and judicial processes developed and evolved through time. Imam al-Mawardi in his text explains this process thus;

"No one sought redress for a wrong from any of the four Khulafah (Caliphs) as they were at the beginning of the affair when the Deen (the religion) had just appeared.... admonition sufficed...

After him (Ali), however, such cases became more frequent - so much so that people would openly act unjustly to each other and try to get the better of each other; admonition and exhortation were not sufficient to prevent them from mutual hostilities and recriminations. Thus there was a need for judiciary - which combined the power of authority with the fairness of a legal system - to investigate cases of wrong doing and abuse in order to prevent people from taking advantage of each other, and to see justice was done... the first to assigning a specific day for the investigation of wrong actions (Mazlama) – without actually taking part directly himself was Abd al-Malik ibn Marwan. If the latter had to deal with a problem or if he needed some executive judgment, he would hand it over to his Qadi (judge), Abu Idris al-Awdi... Thus Abu Idris was actually conducting the case and Abdul Malik was giving the orders...

Umar ibn Abd al-Aziz may Allah have mercy on him was the first person to undertake judicial investigation of (Mazlama) wrong actions and abuse: he would reject all such wrong doing and would maintain respect for just and fair practices, or re-establish such practices if necessary... Later several of the Abbasid khulafah sat in Judgment, the first of these being al-Mahdi, then al-Hadi. al-Rashid, al-Mamun and

finally al-Muhtadi...

The kings of Persia had considered it to be amongst the fundamental practices of sovereignty and the rules of justice: correct behaviors amongst the general population could only be established by observing such practices."[2]

In the explanation of this Taqi ul-Din al-Nabhani states: "It is permissible to have a special judge for Mazalim (Unjust Acts), because anything that falls under the mandatory powers of the Khaleefah (Caliph), he is allowed to appoint deputies to perform that duty on his behalf. It is also permissible to have a specific time and a specific style, because all of this falls under the Mubah (allowed)."[3]

The issue of not applying particular ahkam (judgments) and the affair narrated in Ahkam al-Sultaniyah of al-Qadi al-Imam Abu Yusuf and Khalifah Haroon al-Rashid is the perspective of al-Qadi Abu’l Hasan al-Mawardi

As for the issue of preventing the ruler from ruling by his own opinions, the following example set by the companions can explain this in more detail.

Taqi ul-Din al-Nabhani states: “The definition of Taqlid linguistically and in the Shariah, implies that everyone who follows someone else’s (point of view) is a termed a Muqallid; so the issue is following someone other than oneself. From this perspective a person, with regards their knowledge of Hukm Shari is of two types: one of them a Mujtahid, the second Muqallid, there is no third type.”

He goes: “The Mujtahid when he is of the capability of making Ijtihad, completely, in any particular issue, and has made Ijitihad in an issue, which leads to him embracing a specific opinion, is not allowed to imitate (taqlid) the opinion of another Mujtahid differing from his own. He is not allowed to abandon his opinion in that matter except in four situations:

When it becomes apparent that the evidence that he based his Ijtihad on was weak, and the evidence of another Mujtahid was stronger…
When it becomes apparent that the other Mujtahid is more capable in his ability to link, or has more awareness of the reality, or a stronger understanding of the evidence…
If the Caliph adopts a rule that differs to the rule that his Ijtihad has led to…
When there is an opinion, around which it is desired to unify the word of the Muslims for the Maslaha (interest) of the Muslims. In that scenario it is allowed to for a Mujtahid to leave what his own Ijtihad has concluded, and adopt the opinion that he seeks to unite the Muslims upon. This would be like that which occurred with Uthman (ra) when he took the pledge. It has been narrated from Abdul-Rahman bin Awf (ra) that he had asked the people, the elect and the masses, collectively, in groups, secretly and openly. He gathered the people in the Mosque in front of the Minbar, and supplicated a long supplication. Then he called Ali, and took his hand and said: “Will you take the pledge, to act in accordance with the Book, the Sunnah, and the two successors who followed him, Abu Bakr (ra) and Umar (ra)?” Ali (ra) replied: “I take the pledge upon the Book, the Sunnah and to make Ijtihad and follow my opinion”. So he let go of his hand and called Uthman (ra) and said to him: “Will you take the pledge according to the Book and Sunnah, and the opinions of the successors after him, Abu Bakr (ra) and Umar (ra)?” Uthman (ra) said: “O Allah Yes!” Then Abdul-Rahman (ra) raised his head to the courtyard of the Mosque and placed his hand in the hand of Uthman (ra) and said three times “O Allah, hear and bear witness!”

The details are narrated in Imam Bukhari’s Sahih

Taqi al-Din al-Nabhani explained: “However this is permitted for a Mujtahid, not Wajib (obligatory). The evidence for that is the fact that Ali (ra) did not accept to abandon his Ijtihad for that of Abu Bakr (ra) and Umar (ra), and none of the companions (ra) made inkar (rejection of the practice), and this indicates that this is permitted and not Wajib.”[4]

So we can conclude two points

That, in the opinion of Taqi al-Din al-Nabhani, it is allowed to adopt an opinion for the sake of calling the people to it and uniting them upon it if there is a Maslaha (interest) intended in this.
The legislature, and even the Ijtihad of the people, will bind the Government.

Imam Mawardi in the section of criminal actions and judgments governing them explains that certain judgments should not, and actually cannot, be implemented at all. In his words, and the context that he gives, is the following:

“However as people take care not to do this, or even refuse to do this, those who are of this opinion do not put it into practice.”

The Imam then narrates an incident where the point of view of a certain Qadi – in this case none other than Imam Abu Yusuf, chief judge (Qadi ul-Qudah) in the time of the Ummayads – faced an incident where his legal opinion (Fiqh) was not accepted by the society in which he was judging, and was likely to create a reaction from the society. In this case it was actually a case of Qisas (retaliation) involving the application of the death penalty upon a Muslim for allegedly killing a non-Muslim. He approached Haroon al-Rashid, the Caliph, who advised caution; “Deal discreetly with the affair so as to avoid discord”.

In the end it appears that Imam Abu Yusuf, was able to dismiss the case through dismissing the claim, and avoiding the legal measure – in this death penalty being applied. Imam Mawardi used this anecdote to make the point that even if one believes that this is the rule of the Shariah, one should not implement it if that is not the view of the people. He further stated that, “Recourse to such action is permitted if there is a Maslaha (benefit) to be seen in it”.

Opinions, therefore, that are not embraced by the society, though they may have a sound legal argument, are not to be enforced if there is a Maslaha in doing so.

Imam Ahmed bin Murtada al-Hadawi al-Mahdi explicitly stated this, and went further: “wa lahu (al-Imam) isqaatuhaa (hudood) wa takheeruhaa li-maslahatin wa fil-qisasi nazar (ala-Wajoobihi).” “It is up to him (the leader) to repeal them (the legal punishments) or delay them for the sake of an interest (maslaha). With regards to retaliatory punishments, there is room for investigation (regarding it being obligatory in origin).”[5]

In fact regarding the hudood in general and the punishment of apostasy specifically, Professor T J Winter, states; “The Ottoman Caliphate, the supreme representative of Sunni Islam, formally abolished this penalty in the aftermath of the so-called Tanzimat reforms launched in 1839. The Shaykh al-Islam, the supreme head of the religious courts and colleges, ratified this major shift in traditional legal doctrine. It was pointed out that there is no verse in the Qur’an that lays down a punishment for apostasy (although chapter 5 verse 54 and chapter 2 verse 217 predict a punishment in the next world). It was also pointed out that the ambiguities in the hadith (the sayings of the Prophet) suggest that apostasy is only an offense when combined with the crime of treason. These ambiguities led some medieval Muslims, long before the advent of modernisation, to reject the majority view. Prominent among them one may name al-Nakha’i (d.713), al-Thawri (d.772), al-Sarakhsi (d. 1090), al-Baji (d. 1081), and al-Sha’rani (d.1565). The debate triggered by the Ottoman reform was continued when al-Azhar University in Cairo, the supreme religious authority in the Arab world, delivered a formal fatwa (religious edict) in 1958, which confirmed the abolition of the classical law in this area.”[6]

We find that the Hanbali Ulema endorsed this position too; Ala ul-Din Kharufah, an Alim of the Ibn Saud University explains in his book, ‘Hukm al-Islam fi-Jara’im Salman Rushdie’, that the Hudood such as the “rules of apostasy” are all based upon, and only implemented in, the interest of Muslims; “li-maslahat il-Islam…” and presents the true and wholesome nature of Islam (“dai’yah tayyibah l’il-Islam”).[7]

How does one ascertain these Masalih?

This was explained by ‘Sultan of the Ulema’, Imam al-Izz Ibn Abdul-Salam al-Sulami[8]:

“The masalih (interests) and mafasid (harms/corruption) 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 judgments 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 mafsadah.”

Najm ul-Din al-Tufi the Hanbali Usuli; defines the masalih as the purpose upon which the application of the shariah depends.[9]

Professor Hashim Kamali explains this in his work ‘Principles of Islamic Jurisprudence’[10] that:

“As for transactions and temporal affairs (ahkam al-muamalat wa al-siyasat al-dunwayiayah), al-Tufi maintains that if the text of the maslaha happens to conform to the maslaha of the people in a particular case, they should be applied forthwith; but if they oppose it then maslaha should take precedence over them. The conflict is really not between the nass (text) and maslaha, but between one nass and another, the latter being the hadith of la darar wa la dirar fil Islam (there is no harm or reciprocating harm in Islam). One must therefore not fail to act upon that text which materialises the maslaha. This process would amount to restricting the application of one nass by reason of another nass and not to a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur’an by way of clarifying the text of the Qur’an.

In areas of transactions and governmental affairs, al-Tufi adds, maslaha constitutes the goal whereas the other proofs are like the means; and the ends must take precedence over the means. The rules of Shariah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslaha and nass, the hadith la darar wa la dirar clearly dictates that the former must take priority. In short al-Tufi’s doctrine, as Mahamassani has observed, amounts to saying that after each ruling of the text, ‘Provided public interest does not require otherwise’.”

This is the opinion of an Allama and Usuli of the Mazhab of Imam Ahmed Ibn Hanbal and though may not be shared by other usuliyeen is recognised by al-Nabhani as a valid Islamic position; al-Nabhani states[11], that the above view is Hukm shari for those that adopt it and for those that disagree with it, it is still nonetheless a hukm shari.

Regarding the issue of blasphemy itself the Islamist perspective is – unsurprisingly – the harshest stance possible. The ‘Moderate’ 'Muslim Brotherhood' spokesperson, al-Shaykh al-Nur [aged 27 - vetinery scientist] said; "if she meant the prophet she must die". He said this speaking of the “Teddygate affair”.

Assuming that someone did insult our noble messenger (saw) what should our attitude be? I mean Muslims do profess a love for God and his prophet. Why not let us take our precedent from the Qur'an and the Sunnah (example) of our Messenger Muhammad (saw)? After all it is for his sake that we get upset and not some type of political-religious identity politics. Surely?

Let us take the Qur'an first; it was narrated by Ibn Kathir the Qur'anic exegete in his Tafsir ul-Qur'an il-Azim that some people from one of the Jewish tribes came to the Prophet and spoke to him in words implying insolence, saying raa'ina which in Arabic also meant 'look upon us' but alluded to some type of derision in their own dialect.

God revealed a verse regarding this incident addressing the Muslims and Jews saying, "O you who believe! Say look unto us (unthurna) and do not say raa'ina (look at us)" So God advises us not to address people in an ambiguous manner.

Ibn Kathir also adds in his exegesis that the Prophet (saw) told the companions how not to address servants and young children in a similar manner, but with words that didn't hurt or upset them. In another incident mentioned by Imam Bukhari – the famous Muslim polymath and collector of what is considered by Muslims to be the most authentic collection of prophetic teaching - we are informed of the following:

They came into the presence of the Messenger Muhammad (saw) and addressed him with the words 'Saamu alaikum' meaning, 'Death be upon you', instead of

salam (meaning peace). Aisha (r) responded immediately 'wa alaikum al-saam' 'and upon you be death'! To which the prophet told Aisha (r), not to do so, but rather be kind and gentle as Allah loves Kindness, and the gentle, and it would have been sufficient to say ‘alaik' (upon you) and not cross the boundaries!

This is an emphatic example of not just tolerance, but the Rahma (mercy) that was the Messenger (saw).

This is why Imam Bukhari (ra), as explained by Badr ul-Din al-Ayni (ra) in his commentary on the Imam's collection of hadith (Umdat ul-Qari volume 24), believed that the Prophet (saw) never took any recompense on any non-Muslim for insulting him. This was considered by him to be the sunnah, as there was no divine punishment prescribed upon the Zimmi (non-Muslim) living amongst Muslim society. This was a matter for the politicians and rulers to decide how to deal with, and going to extremes in dealing with such a scenario was forbidden. In fact, according to the prophetic precedent, even reciprocating in a like manner was too much and inflicting capital punishment was absolutely prohibited.

Imam Bukhari, like other scholars such as Imam Abu Hanifah (ra) reminded Muslims that one of the most well known traditions of the prophet, narrated by many of his Companions (considered mutawatir by Khattani), held that "whoever harms a non-Muslim under Muslim protection harms me" i.e. the Messenger Muhammad (saw). Imam Ibn Hazm lists the above as the position of Imam Abu Hanifah.[12]

Returning to the repealing of Hudood, though other jurists who comment on this text may ostensibly differ with Imam al-Murtada, such as the Qadi al-Imam Muhammad bin Ali al-Shawkani, they differ not with the substantive issue itself. Al-Shawkani accepts, from another perspective, the principle that political agreements with apparently ‘invalid’ conditions are permitted. To elaborate further, Imam al-Shawkani states[13]:

“It is reported on the authority of Asim al-Laythi that a man amongst them said verily he went to the prophet (may Allah bless and grant him peace) and agreed that he would embrace Islam on the condition that he would pray two prayers, and he (saw) accepted this from him (Narrated by Ahmed).

It was mentioned in another narration that he would not pray but a single prayer, and that the Prophet (saw) accepted that from him.

Wahb is reported to have said: I asked Jabir regarding what transpired at Thaqeef when they gave the Bayah (pledge) and he said: they placed the condition (shart) on the Prophet (saw) that there would be no Sadaqa upon them, and no jihad. I heard from the Messenger (saw) himself say: They will give the sadaqa and the will fight Jihad! (Narrated by Abu Dawud, Hadith number 3210)

Anas reported: Verily the Messenger (saw) said to a man, "embrace Islam" and he responded, "I find myself somewhat averse/forcing myself (ajidunee kaarihaan)". He (saw) said, "embrace Islam, even so (in kunta kaarihaan)" (Narrated by Ahmed, Hadith number 3211).

In these ahadith there is evidence of the permissibility of taking the Bayah (pledge of allegiance) and the acceptance of Islam from a non-Muslim even if he stipulates (Batil) invalid conditions, or an element of aversion. Abu Dawud was silent (i.e. he viewed it as authentic because he stated that anything he remained silent about in his Sunan is at least acceptable [Hasan]) and al-Mundhiri said, regarding the hadith that we have mentioned, that Wahb is Wahb ibn Munbih and its isnad (chain of narration) is authentic (la bas bih – lit. no problem with it).

Abu Dawud has also narrated the Hadith of al-Hasan al-Basri from Uthman bin Abi’ al-Aas that “when (the tribe of) Thaqif presented themselves to the Messenger, Allah bless him and grant him peace, he met them in the Mosque, so as to soften their hearts. They placed conditions on him that they should not be summoned, nor should their wealth be subject to the tenth, and that they would not lower their heads by bowing. So the Messenger, peace be upon him and his family, said: “It is granted, that you will not be summoned, and your tenth will not be taken, but there is no good in a religion without bowing (ruku’)”. Al-Mundhiri said: It was said (“qeela” – used in this way because such a view is not accepted by al-Mundhiri) that al-Hasan al-Basri did not ‘hear’ from Uthman bin Abi’ al-Aas; what is meant by not being summoned is being requested to come for Jihad and going out for it (an expedition).

And his saying ‘tenth’, is referring to the ‘tenth’ of the property that is taken as Sadaqa (mandatory alms).

And his saying ‘not bowing’, (omitting some text on the morphology) the basic meaning of ‘bowing’ is a man standing in the position of ruku’, and what was intended by that was that they would not pray (make the mandatory ‘Salat’).

Al Khattabi said: ‘it is possible to opine (There is ‘Shubha’) that he was magnanimous to them regarding Jihad and Sadaqa because these two obligations (wajibatayn) were not immediately obligatory, as alms are due only after the passing of a year, and Jihad is only obligatory if you are surrounded (by an enemy force); as for the Salat, this is set-determined (ratibah) and therefore it is not permitted to place a condition to abandon it.’

In contrast to this view is the Hadith of Nasr bin Asim mentioned in this Chapter. For it expressly mentions that the Prophet may Allah bless him and grant him peace, accepted from a man that he would pray only two prayers or one prayer, depending on the different narrations. The problem remains though in the saying (of the Messenger) in the Hadith: “there is no good in a religion without bowing”. The apparent meaning (Zahir) indicates there is no goodness in someone embracing Islam on the condition that he doesn’t pray. It is possible though to say; the Prophet’s, Allah bless him and grant him peace, negating goodness does not indicate the impermissibility (adam ul-jawaz) of someone accepting Islam on condition that they don’t pray. The fact he, Allah bless him and grant him peace, did not accept this condition from Thaqif, does not necessarily mean an absolute prohibition.”

The people, therefore, can negotiate political agreements around which their social and political interaction is built, without any specific restrictions imposed by the Shariah. Taqi ul-Din Ibn Taymia (the grandson) used the above examples to make the following point, regarding forbidding “evils” and understanding the consequences in doing so. He explained that one would, and in fact should, refrain from forbidding an evil,

“…when forbidding a matter, which necessarily leads to the abandonment of a preponderant Maruf (good matter). This would be the same when doing so would lead to a greater Mafsada (harm). A case in hand would be for someone to embrace the faith, Islam, on condition that he prays only two prayers, as is related regarding a man in the time of the Prophet (May Allah bless him and grant him peace).

So too would it be for one of the rulers who, having by the grace of Allah embraced Islam, drinks wine or undertakes other forbidden actions which if prohibited to him may lead to him abandoning Islam.

Thus there is a differentiating factor, for say a ruler or scholar, between the act of abstaining from prohibiting a certain thing to some people, when doing so entails a greater harm (Mafsada), and the act of making it permissible (Halal). This will also vary from one situation to another, which may entail making public the prohibition, 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 towards the act; all of these (and other responses) will vary from situation to situation.

This is why we find the various and different approaches taken by the Prophet, whether it was him enjoining the good (Maruf) or forbidding the evil (Munkar), or pertaining to waging Jihad, exonerating an act, imposing a penalty or to be exacting or merciful.”[14]

As for those that do not wish to accept this position and the views of our present day scholars, we should mention two points:

Imam al-Nawawi (ra) comments on the Hadith, "Whosoever sees (removed apostrophe) an evil let him change it...” explaining that it is not allowed to reject an opinion merely because one’s Ijtihad is different. He states, "The Ulema condemn (any divergence from) that which is unanimously agreed upon (Ijma); as for where there is no Ijma, then it is not permitted to condemn (the divergent opinion)."[15]

Furthermore, it is a principle adopted by our scholars that any action already undertaken is to be judged retrospectively as being in accordance with the juristic (Fiqhi) position that it is congruent to.

Hence, we judge actions according to the juristic verdict that they match, not according to the juristic verdict that we may prefer them to have followed, nor by our opinion. This is part of a broader discussion of Muru’at al-Khilaf or the ‘Doctrine of Synchronizing Diversity’. Imam al-‘Izz ibn Abd al-Salam explained this point of view, which was shared by major Maliki authorities such as Tilimasani. For those interested in further reading about this concept and the various views – including the above Imams, this was recorded by al-Wanshirisi in ‘al-Miyar’, volume 4 pages 254 to 280.

Naturally, the above leads to the concept of the Social Contract, and people being able to live together through mutual agreement.

The document of Medina (Mithaq ul-Madinah) states:

“Conditions must be fair and equitable to all… The Jews of the Banu Auf are one Ummah (community) with the believers… the Jews must bear their (military) expenses and the Muslims theirs. Each must help the other against anyone who attacks the people of this document. They must seek mutual advice and consultation… The wronged must be helped… The contracting partners are bound to help one another against any attack on Yathrib. If they are called to make peace and maintain it they must do so… the Jews of al-Aus, their freedmen and themselves have the same standing with the people of this document in pure loyalty from the people of this document.”[16]

Muslims have a cultural heritage that allows them to meet the challenges facing them today such as civic engagement and contributing to society. T J Winter, one of our leading western Muslim scholars, quotes a leading eastern scholar thus:

“… in a lecture given in California by Shaykh ‘Abdullah bin Bayyah, one of the most distinguished Maliki scholars of Mauritania, Bin Bayyah told his American Muslim audience that ‘the relationship between Muslims living in this land is a relationship of peace and contractual agreement – of a treaty. This is a relationship of dialogue and a relationship of giving and taking […] It is absolutely essential that you respect the laws of the land that you are living in.’ The Shaykh proceeded to explain the classical fiqh (rules of religious conduct) required conviviality and respect for non-Muslim neighbours, and allowed adaptations even of the fundamental religious rules, such as the timing of prayers, to facilitate the integration of Islam in society and the work place.”[17]

T. J. Winter goes on to make the above point, with poignant local and historic examples:

“Traditional Sunnism’s legal and theological capacity to allow conviviality and adaptation has, of course, been demonstrated in many historical context. From an almost unlimited list, examples might include the ancient Muslim communities in Poland and Lithuania, which became so solidly embedded in their Catholic surroundings that they produced two of Poland’s national heroes: Jalal al-Din, who supported the Grand Duke against the Teutonic knights at Tannenberg in1421, and Marshall Joseph Piludski (d1920), after whom one of the greatest city squares of Warsaw still takes its name.”

Muslim scholars and thinkers are not averse, in their heritage to embracing their “Ummah” or people, whether they are Muslim, Hindu’s, Jews Christians or Atheists. Civil engagement within society, as human beings trying to live together, creating our own ‘social contract’, is not beyond Muslims or outside the teachings of Traditional Islam.

In the words of T. J. Winter, Muslims need to recognize “… that the united Kingdom has produced many expressions of the religious quest among which they can feel a genuine sense of belonging, and which can remind them of the fundamental unity of humanity.”

Rashad Ali January 2008



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[1] ‘Theories of Islamic Law’ Page 124

[2] al-Ahkam as-Sultaniyyah The Laws of Islamic Governance by Imam al-Qadi Abu'l Hasan al-Mawardi page 117-118 (Ta Ha Publishers)

[3] The Ruling System in Islam (Nidham ul-Hukm fil Islam) page 227 Khilafah Publications.

[4] Shakhsiyah Islamiyah Juz’ al-Awwal Bab ‘Waqi ul-Taqlid’ 221 -223 Islamic Personality Volume 1 chapter entitled ‘Reality of Taqlid’ (adopting opinions from Jurists) Dar ul-Ummah Publications

[5] Sayl ul-Jaraar Mutadaffiq ala Hadaiq ul-Azhar, Kitab ul-Hudood in volume 3, page 487, from the matn (text of Imam Ahmed commonly abbreviated to as; al-Azhar) not the shar’h of Imam al-Shawkani. Dar Ibn Kathir, Damascus - Beirut

[6] ‘The Washington Post’ article entitled ‘The Meaning of Jihad’, article is found on www.radicalmiddleway.com

[7] Published by Dar al-Isfahani 1410-1989 Pages 105-106

[8] al-Qawaid ul-Ahkam fi masalih ul-Anam volume 1 page 13

[9] al-Masalih page 139-141

[10] ‘Principles of Islamic Jurisprudence’ on page 361

[11] ‘Muqaddimat ul-Dustur’ page 75

[12] al-Muhalla. (Volume 11 page 416, Cairo, Idarah Tibi' al-Muniriyah

[13] ‘The Validity of Islam with a Fasid (irregular) Condition’, Volume 4 page 210 Dar al-Kutub al-'ilmiyah Beirut; Nayl ul-Awtar min Ahadith Sayid al-Akhbar Sharh Muntaqa al-Akhbar by Imam Muhammad bin Ali al-Shawkani on the collection of hadith collated by Majd al-Din Ibn Taymia (the grandfather and judge, Hadith number 3209)

[14] Majmou al-Fatawa volume 35 page 31-32 Shaykh al-Islam Ibn Taymia

[15] Sharuh Sahih Muslim Chapter al--Amr bi'l-Maruf wa Nahiy ani'l-Munkar and quoted verbatim by Ibn Taymia in Majmou al-Fatawa Volume 2 page 33 Dar al-Marifa

[16] A. Guillaume The life of Muhammad – A translation of Sirat Rasul Allah pages 231 -233 Oxford Press

[17] T. J. Winter, ‘British Muslim Identity – Past, problems, prospects’, THE M. A. T. PAPERS

Clarification of the Shubuhat of Abu Ibrahim and Ibn Adam

Recently people have accused others of tampering with the Islamic heritage. It was even suggested by someone defending Islamism that Dr Abdul Kareem Zaydan implied that there was no real difference of opinion about the definition of Dar al-Islam. Those belonging to this minor faction of Islamists hold the view that any laws not synchronised with their view of definitive Shariah injunctions would immediately be Kufr and therefore turn the land to Dar ul-Kufr/Harb. I would just like to demonstrate how in the view of the Shaykh it is quite the opposite. I would also like to demonstrate that the allegations of misquotations are unfounded and, in fact, are the same references and quotations used by the Dr, Shaykh Abdul Kareem Zaydan himself.


Clarification of the statements of Shaykh Dr Abdul Kareem Zaydan

Shaykh Dr Abdul Kareem Zaydan states the following:

Sarakhsi in Sharhu Siyar ul-Kabir, “Dar ul-Islam is the name for the place which is under the hand of the Muslims (taht yad ul-muslimeen), and the signs which show this are that Muslims are secure therein (wa alaamat zalik an-yaman fihi al-muslimoon)” [Sharuh Siyar al-Kabeer volume 3 page 81]

The Zaydi Aimmah in their explanation of the Zaydi Matn (text of Muslim law (Fiqh)) of Imam Ahmad ibn Murtada al-Hadawi state, “Dar al-Islam is that land in which the symbols of Islam are present by the strength of the Muslims and their protection, and nothing else is manifest except with the protection and security of the Muslims.” (Dar al-Islam hiya alati tazhar fiha sha’a’ir ul-Islam bi quwwat il-Muslimin wa mana’tihim, wa laa yazhar fiha ghairuha illa bi il-zimmati wa al-amaani min al muslimin) [Sharh al-Azhaar page 571].

The Shaykh Dr Abdul Kareem Zaydan states that this essentially means that the Shawka (the strength/power) belongs to the Muslims, in his notes on page 16 of Ahkam al-Zimmi’in wa al-Musta'minin.

He continues quoting, “the respected Abdul Wahhab Khallaf states, ‘this is the land in which the rulings of Islam are implemented and the safety of the people in it is by the safety of Muslims, whether they are Muslims or Zimmi’s’” (Hiya dar allati tajri alaiha ahkam ul-Islam wa ya'man man fiha bi-aman il-muslimin, sawa’an akanu muslimein aw zimi’in). He references this back to his text, Siyasat ul-Shariah of the respected Dr Abdul Wahhab Khallaf, page 6. He also states that this is the view of the Ibadites also and refers to Sharh Nayl, volume 10, page 405.

The Shaykh continues and makes a point that has been used by certain people to imply the opposite of what he says, “in reality there is no difference between the two definitions, because the land which is under the hands [i.e. the authority] of the Muslims, will apply the rulings of Islam. This is because the Muslims wouldn’t live their lives (la yajra’ouna) with other than these rulings. It is obvious therefore, that those who describe it as the place where ‘Islamic rulings are applied’, that safety would naturally accrue in such a place.”

“The quintessential criterion (shart ul-Jawhari) to consider a land Dar al-Islam, is that it is governed from the perspective of the Muslims, under their authority and their sovereignty. From that perspective the Islamic rulings will become manifest. It is not a condition that there are Muslims residing their as long as it is under their authority. It is in this respect Imam Rafi’i says, “it is not a condition of Dar al-Islam that there are Muslims residing therein, rather it suffices that it is under the hand of the leader and he is Muslim” (Laisa min sharti Dar il-Islam an-yakuna fiha muslimun, bal yakfi kawnaha tahta yad il-Imam wa Islamihi) [Fat’h al-Aziz volume 8 page 13.]

The Shaykh elaborates further, “the Islamic lands are all considered one land though they may have different rulers…”

So the Shaykh is saying that wherever the symbols of Islam are manifest and the Muslims can live by Islam in safety, this is Dar ul-Islam, without consideration to the different definitions mentioned as they amount to the same thing. Either the Muslims are in authority, and therefore they can live by Islam and the Sha’air of Islam are manifest, or Muslims are safe and therefore, they can practice their faith and live by the rulings of Islam.

He goes on to make this point clear by stating, “the people of Islam, whether they are Muslim or Zimmi, their property and their persons are safeguarded and protected; the Muslims because they are Muslims, and the Zimmi’s because of their covenant [of safety]. They are all safe by the safety of Islam (fahum jami’un aminun bi aman il-Islam) i.e. by the safety sanctioned by the Shariah because of the fact that the Muslims are Muslim and the non-Muslims have made a contract of safety by being Zimmi.”

To eliminate any further doubts, in the footnotes of the discussion concerning the two types of land the Shaykh explains, “some of the Fuqaha (jurists) mention Dar al-Ahd (land of treaty) when discussing the two types of Dar’s (Dar ul-Harb and Dar ul-Islam). But in reality it is Dar ul-Islam.” [He references this to Ahkam al-Sultaniyah of Imam Mawardi pages 101, 133 and 166]

A further illustration of this is how Muslims could practice their Deen and the fact that they integrated in such a society with whom they had signed a treaty and made a covenant of peace, in the time of the Messenger (saw)in the Treaty (Sulh) of Hudaybiyah;

Observations on the Treaty of Hudaybiyah

Imam al-Nawawi makes the following observations regarding the treaty of Hudaybiyah that was concluded by the Messenger (saw) with the leadership of Quraish in Makkah:

"The Ulema state: The Maslaha (Interest/Goodness) that was achieved by the conclusion of this treaty, manifest clear results/fruits. Many manifest benefits where achieved through it, which eventually lead to the conquest of Mecca and the embracing of Islam by all of its people, and the people entering into Islam in their droves. This is because before the treaty they did not mix and mingle with the Muslims, and the salient features of the Prophet (sal-Allah alaihi wa-sallam) had not been manifest to them, neither had they been around those who knew of these details.

After the treaty of Hudaybiyah had been concluded, the Muslims freely interacted amongst them; they went to Medina and the Muslims went to Mecca, and mingled amongst its people, their friends and those who were sincere in their intents towards them. They heard about the true status of the Prophet and explained it with its detail and qualities; his manifest miracles; the clear signs of his Prophethood; the splendor of his lifestyle and beauty of his way; and many were guided greatly, and their souls inclined towards faith until many of them raced towards Islam before the conquest of Mecca, and they embraced Islam between the conquest of Mecca and the treaty of Hudaybiyah.

It created an inclination towards Islam in all of the other people, such that on the day of the conquest all of the people embraced Islam. The Arabs from other than the Quraish, including from the Bedouin tribes, who had delayed their embracing of Islam, in anticipation of the Quraish embracing Islam; all became Muslim when the Quraish became Muslim. Allah ta'ala says, "When the Help from Allah comes, you will see the people enter Islam in their droves!" [Surah al-Nasr: 1]"

Sahih Muslim Bi-Shar'h al-Imam Muhiy ul-deen al-Nawawi - al-Minhaj shar'h Sahih Muslim ibn al-Hajjaj Parts 11 &12 Bab (chapter) Sul'h HudayBiyah (Treaty of Hudaybiyah) page 352

Statements on Dar ul-Harb

Dar al Harb is the land which there is no authority for the Muslims. This is the why the Zaydiyah say, “And know that Dar al-Harb is that land where the power (Shawka) is with the people of Kufr and there is no safety for the Muslims over such a land.” (wa a’lam anna Dar al-Harbi hiyah allati shawkatuhu li-ahl il-kufr wa la zimmatin min al-muslimina alaihim) [Sharuh al-Azhar volume 4, page 551].

He also mentions the view of the respected Shaykh Abdul Wahhab Khallaf, who states that in Dar al-Harb the rulings of Islam are not implemented because the rulers are not Muslims, and the Ibadites hold this view also. [Siyasat ul-Shariah by Abdul Wahhab Khallaf page 69 for the ibadites see Sharuh Nayl volume 10 page 390 – it states Dar al-Harb is that land which the affair lies with the Mushrik (polytheists) and the rulings of Shirk are applied (Dar ul-Harb hiya dar ullati amruha li il-mushrik yajri fiha ahkam ul-shirkiyah]

He also mentions that there are also two definitions and explains that there is no real difference in these definitions. He says, “The people of Dar al-Harb are Harbiyun (at a potential state of conflict). And the Harbi has no ‘Ismat’ (safety and protection) for neither himself nor property from the people of Islam. Because Ismah in the Shariah of Islam occurs through one of the two ways: Faith in Islam (Iman) or safety (Aman); and the Harbi has neither of the two.”

He then discusses;

When does Dar al-Islam become Dar al-Harb?

“The Ahnaf and the Zaydia say: Dar al-Harb becomes Dar al-Islam by the appearance of the Islamic rulings in it (tasiru Dar ul-Harb, Dar al-Islam bi-Izhar ahkam il-Islam fiha) [Shams ul-Aimmah al-Sarkhasi in Sharuh Siyar ul-Kabir volume 4 page 302, 320, 323 Imam al-Kasani in Bada’I Sana’I volume 5, page 130, fatawa Hindiyah volume 2 page 232 and sharuh al-Azhar volume 2 page 572].

And that Dar al-Islam becomes Dar al-Harb when three conditions are met:

1. The appearance of the rulings of Kufr in the land
2. It is annexed to Dar al-Harb such that it is no longer any land from the Muslim lands adjoined to it
3. There does not remain a single Muslim or Zimmi safe by the safety of the Muslims

(Imam Kasani volume 7 page 130 and Fatawa Hindiyah volume 2 page 232)

And according to Abu Yusuf and Muhammad and the Zaydia Dar al-Islam becomes Dar al-Harb by the appearance of the rulings of Kufr therein.”

This may warrant a further explanation, as laws not being synchronised with the Shariah has become synonymous in a certain minority faction with the Hukm of Kufr, when in fact the Hanafi, Shafi’i, Maliki and Hanbali schools at least do not consider this to be the case.

The Rulers

To explain the meaning according to the Hanafi school let us quote from the foremost Hanafi scholar in Hadith exegesis, on the specific Hadith pertaining to the meaning of Kufr in the ruler; Badr ul-Din Abu Muhammad ibn Mahmud ibn Ahmad al-Ayni, from what is considered one of the best text of legal exegesis of Imam Bukhari’s Sahih collection of Hadith; Umadat al-Qari Shar’h Sahih al-Bukhari.

Badr ul-Din al-Ayni states regarding the Hadith as found in the Sahih of Imam Bukhari,

“and not dispute the Amr (command) or its people, unless you see manifest Kufr, of which you have indisputable proof from Allah”

al-Ayni comments thus “do not dispute with the people in authority, nor their authority, nor contradict them, unless you see from them a verified Munkar (violation of Shariah) that you know from the principles of Islam then you should condemn it (Inkar). Al-Daudi [the Maliki Faqih] said,” what the Ulema are upon regarding the unjust rulers (Umara al-Jawr) if you are able to depose them without (creation of trouble) Fitna nor Zulm (oppression) then you are obliged to do so, if this can not be done then you are obliged to be patient”. He goes on further, “If the ruler becomes a tyrant after being just people disputed regarding rebellion against him, what is correct is that it is forbidden unless he becomes an unbeliever (illa an-yakfur).”

He also states, commenting on the Hadith “whosoever sees in his Amir something that he dislikes, let him be patient. For no one separates from the Sultan (authority) even by a small hand span except that he dies the death of Jahilliyah.” Al-Ayni comments, “meaning let him be with that matter which he hates and not move away from obeying him, because in this there would bloodshed, and tribulation unless he becomes an unbeliever, and manifests what contradicts the Dawa to Islam, for there is no obedience to the created in disobedience to the Creator. And in this there is Dalil (evidence) that verily the Sultan is not removed by Fisq (trangression) or Zulm (oppression) and it is not permitted to dispute their authority due to these matters.” (Umdat ul-Qari Sharuh Sahih al-Bukhari volume 24, pages 224 to 226 chapter on the Prophet’s saying; “You will see matters that you will reject…” Dar ul-Kutub ul-Ilmiyah)

The translator and lawyer, Nuh Ha Mim Keller in, ‘Reliance of the Traveller’ explains the meaning of hukm al-Kufr/Shirk as not merely contradicting the Hukm Shari which may well be injustice, but not Kufr; but rather as meaning Kufr itself.

He quotes the Shaykh Nuh Ali Salman as stating regarding alteration of the law (Taghyir ul-Shara'); “alteration being of two types, one of which consists of his (the rulers) changing the law by legislating something which contravenes it, while believing in the validity of the provisions of the sacred law (an yamur bima yukhalifu bihi il-shara' mu’taqidu sihhati ma warada fi il-shara'), this being an injustice that does not permit rebellion against him (wa haza zulmun la yabihu ul-khuruja alaihi), while the other consists of imposing rulings that contravene the provisions of the religion while believing in the validity of the rulings he has imposed, this being unbelief (Kufr).” Note the contents of the text have been attested to by al-Azhar, and other independent Ulema like Shaykh Abdul Wakil al-Durubi who have all attested to its consonance with the view of Ahl al-Sunnah and they have certified the text its notes and translation. (This can be found at the beginning of the publication)

This is also why the Ulema of Islam state that when the Muslim ruler enacts a law that requires a Muslim to undertake a prohibited act (Haram), then this should be disobeyed, and those laws which are in accordance with Islam should be obeyed. Imam al-Nawawi states in the chapter, Bab wujub taa’ati il-Umara' fi ghayri ma'siyah wa tahrimuha fil-ma’siyah ‘The obligation of obedience to the rulers and its prohibition in disobedience to Allah’: “the Ulema have agreed (Ijma) that it is obligatory in other than Ma'siyah (disobedience to Allah), in this matter Qadi Iyad (the Maliki jurists, Judge and exegete of Hadith) has transmitted an Ijma (consensus of opinion amongst jurists) upon this matter ” (Sharuh Sahih Muslim parts 11/12 page 426)

Imam al-Nawawi continues regarding the Hadith of Kufr Buwah quoted above:

“The meaning is Kufr Zahir (explicit disbelief), and what is intended here is Ma’aasiyy, and the meaning of ‘of which you have evidence from Allah’ is that you certainly know this from God’s religion. So the meaning of the Hadith is, ‘do not dispute with the people in authority, nor their authority, nor contradict them, unless you see from them a verified Munkar (violation of Shariah) that you know from the principles of Islam, when you see this you should condemn it and speak the truth wherever you may be. As for rebellion against them or fighting against them, this is Haram (prohibited) by the consensus of the Muslims even if they transgress (Fisq), or are tyrants (Thalimeen)…He is not removed for transgression (Fisq), tyranny (Thulm) or suspending their civil rights (huqooq)” (al-Nawawi, al-Imam, Shah Sahih Muslim, v. 11-12, p.432-3)

Al-Nawawi in the same discussion states that this would only done to remove a Kafir and this would only be obligatory on those who have the ability, and he quotes Qadi Iyad as stating this is the case and that there is an Ijma on this.

Ironically one of the persons trying to disprove this has used statements of Ulema, which actually state the opposite of what they are saying. To quote:

“Ibn Abbas (ra) on this verse stated that anybody who denies a definitive judgment of Allah (swt) contained in the Shariah is a Kafir. He went on to say that anyone who says that the ruling of Allah (swt) does not have to be established or the ruling of man is better than the ruling of Allah (swt) or the rules of man are just as good as the ruling of Allah (swt) is a Kafir. He also said that the one who does not deny Allah's (swt) ruling, but believes that it is allowed to judge by other than what Allah (swt) has revealed, he is also a Kafir because he is denying that the right of judgement is solely for Allah (swt). This is the case even if he says that the judgement of Allah (swt) is better than the judgement implemented by man.

Ibn al-Qayyim said, "The correct view is that judging according to something other than that which Allah has revealed includes both major and minor Kufr, depending on the position of the judge. If he believes that it is obligatory to judge according to what Allah has revealed in this case, but he turns away from that out of disobedience, whilst acknowledging that he is deserving of punishment, then this is lesser Kufr. But if he believes that it is not obligatory and that the choice is his even though he is certain that this is the ruling of Allah, then this is major Kufr.” (Ibn al-Qayyim, "Madaarij as-Saalikeen", Volume 1 page 336-337)

Ibn Abeel-'Izz said, "Judging by other than what Allah has revealed could be Kufr that expels one from the religion and could be a sin either a major sin or a minor one and it could be a symbolic Kufr or minor Kufr based on the two sayings and this all depends on the situation of the judge: So if he believes that judging by what Allah has revealed is not obligatory or that he has the option in this or if he dishonours it while being certain that it is the Judgement of Allah then this is major Kufr and if he believes in the obligation of judging by what Allah has revealed in this instance but turns away from it while recognizing that he deserves to be punished then he is a sinner and is to be referred to as a disbeliever symbolically or upon minor disbelief" (Sharh Al-Tahawiyah page324)

Ibn Taymiyyah said, "Undoubtedly, whoever does not believe that it is obligatory to judeg according to that which Allah has revealed to His Messenger is a Kafir, and whoever thinks it is permissible to judeg among people according to his own opinions, turning away and not following which Allah has revealed is also a Kafir...So in matters which are common to the Ummah as a whole, it is not permissible to rule or judge according to anything except the Quran and Sunnah. No one has the right to make the people follow the words of a scholar or Amir or Shaykh or king. Whoever believes that he can judge between people according to any such thing, and does not judge between them according to revelation is a Kafir." (Minhaj as-Sunnah, 5/pp.130-132)”

Muslim lands are certainly Dar ul-Islam for the Shaykh

The above is with regards the meaning of Hukm al-Kufr and also the prohibition of removing a ruler through force (khuruj) as long as he is a Muslim. To return to the main discussion pertaining to defining Dar al-Islam and Dar al-Harb, we can continue to see clearly the point of view of Dr Abdul Kareem Zaydan, as he continues the discussion and his explicit judgement that all the Muslim lands today are Dar al-Islam.

Just in case there is any doubt the Sheykh, then continues to pose the question “hal tasir Dar aul-Islami Dar al-Harbi iza astawlat alaiha dawlatun kafira? Does Dar al-Islam become Dar al-Harb when a non-Muslim state comes to power over it?”

He explains that this isn’t even a new matter of Fiqh and jurisprudence as it has occurred before and resolved before.

Shaykh Zaydan writes under this sub-heading; “This issue was raised before to Imam al-Isbeejabi [The Hanafi faqih of the 7th century, Baha ul-Din Muhammad in Ahmad al-Isbeejabi} after the invasion of the tartars in the Islamic lands and there occupation and rule over parts of it.” He explains the position of the Imam of the Mazhab of Abu Hanifah thus: “the fact that the 'illah (reason) remains means that the judgement on the land remains; and we had judged without any dispute that these lands before the occupation of the Tartars were from Dar al-Islam, and after the occupation of these lands there remained the symbols of Islam (Sha’a’ir al-Islam) like the Azan, the Juma, the congregational prayers, and others, so it remains Dar al-Islam. Imam Hilwani [this is the famous Hanafi scholar of the 5th century Hijri, Abdul Aziz bin Ahmad bin Nasr bin Saleh, known as Shams al-Aimmah al-Hilwani al-Bukhari) said: “that Dar al-Islam becomes Dar al-Harb (with the above three conditions) when all three conditions exist it becomes Dar al-Islam (fa iza wujidat ul-sharaitu kulluhaa saarat Dar al-Islam) and when the indications conflict or only some conditions exist, then the original judgement of what the lands were remains (wa inda ta’arud ul-dalail aw sharait fa-innahu yabqi ma kana ala ma kana) ” Imam al-Hilwani does not stop there but makes the point, “is it not noted that Dar al-Harb becomes Dar al-Islam solely by the enacting of the Islamic rulings therein (ijra ahkam il-Islam fiha) by Ijma (consensus)?”. (Ijra’at al-qadayah the Shaykh’s Ustaz Muhammad Farj Sanhouri pages 39 and 40)

In order to further illustrate this point I would like to add here the words of Abu Hanifah as Shams al-Aimmah al-Sarakhsi/Sarkhasi states in his master piece al-Mabsut page 93 Kitab al-Siyar, bab al-Murtadin volume 5 of the Dar al-Fikr version

"For Abu Hanifah rahimuhullah ta'ala: Verily their Dar (Dar al-Islam) becomes Dar al-Harb when three condition are met: first of them, that they are surrounded with no Muslim land between them and the enemy land; two there remains not a Muslim secure with their security nor even a Zimmi secure by their security; third and the dominance of the rulings of shirk in this land... by the occurrence of all three conditions (bi-istijmaa shara'it al-thalatha)"

"..this land in principle remains Dar al-Islam as long as there remains within it a Muslim or Zimmi, and a remnant from the remnant of the original land (i.e. Dar al-Islam) then that judgement remains [i.e. that it remains Dar al-Islam]."

Using the above criterion the Hanafi Imam Shaykh Muhammad al-Hamid in his Rudud ala Aabatiil wa Rasa’il Shaykh Muhammad al-Hamid, concluded that India still remained Dar ul-Islam (volume 2 page 267-279). This is also the view of translator of ‘Reliance of the Traveller’ Shaykh Nuh Ha Mim Keller and his Shuyukh, like Nuh Ali Salman. (Reliance of the traveler pages 946 -947)

To return to Shaykh Abdul Karim Zaydan, he continues “What we conclude from the opinion of the two Imams al-Isbajibi and al-Hilwani, Dar al-Islam does not become Dar al-Harb merely by the occupation of non-Muslim states as long as some of the Islamic rulings are enacted.” Is this a strong opinion? He states “the position of these two Imams is the preponderant view (Rajih al-Nazr) due to the basis of their derivation.” So what about some of the Islamic lands today which are occupied today? Shaykh Zaydan states “they are considered to be from Dar al-Islam because some of the rulings of Islam are enacted therein such as the Ahkam of Nikah (marriage) and other than it in matters of personal law. And also due to the fact the symbols of Islam (sha’a’ir al-Islam) are present”

The shaykh quotes further to substantiate this position in his notes to the above discussion, “what is meant by Dar al-Islam is that land that is under the rule of Muslims or ruled by other than them but the symbols of Islam are present, some of them, or most of them” (Wisayah fi fiqh al-Islami page 336 by Ustadh Muhammad Sallam Madkur). (It is slightly concerning that one of the writers actually quotes "Ahkam al-Ahwaal al-Shaksiyyah li-Muslimeen fi al-Gharb", by Dr Salim al-Rafi'i which states the same point above and even places the Arabic in his article yet claims the exact opposite.) To translate from the quotation found in the piece;

“This is because the Islamic lands do not become Dar ul-Harb merely by the domination of the enemy over them, rather by the removal of the insignia of Islam (sha’air) from them; as long as the insignia of Islam are present or the majority of them, the land does not become Dar ul-Harb”

Conclusion

It should be abundantly clear to all therefore, the errors of those who have erred greatly vis-à-vis Shaykh Abdul Kareem Zaydan and others who have misunderstood the views and Mazahib of the Ulema regarding the defining of Dar al-Islam and the Muslim lands being so. The Ikhtilaf (difference) of those that differ is noted but not considered (Ghayr Mutabar) amongst our Ulema, and those that differ with them are duty bound to accept this point of view as valid, if not the correct point of view and the opinion of the Ulema past and present; everyone is duty bound to accept this.

It would be appropriate to briefly mention here that the position of Imam al-Mawardi, the existence of which certain persons initially denied in writing, only to then write that it was a misquotation or a misunderstanding; is actually completely in line with the other Ulema today.

The author of the piece fails to recognize that the quotation whilst being in a secondary source is actually that of the great hadith master, Qadi and Usuli, Imam Shawkani! Also Imam Shawkani actually understands and disagrees with the perspective presented (something which is contrary to the assertion that is made by others that this is a definitive and agreed upon discussion with everyone agreeing with the perspective of the authors when in fact the claim is only made to the opposite by Shaykh Zaydan (i.e. everyone agrees the Muslim lands would be Dar ul-Islam [one which some dispute], which isn’t entirely accurate. It would be sufficient to transcribe the quotation form the article itself.

""Lo! as for those whom the angels take (in death) while they wrong themselves, (the angels) will ask: In what were ye engaged? They will say: We were oppressed in the land. (The angels) will say: Was not Allah’s earth spacious that ye could have migrated therein? As for such, their habitation will be hell, an evil journey’s end." (Quran 4:97) ...If one is able to manifest their din in any kufr land then that land thereby becomes by it a Dar Islam. So residence there is preferable than journeying away from it in the hope others may embrace Islam. And it is apparent that this view conflicts with the ahadith (narrations) in the chapter of al-Qadiya prohibiting residence in the Dar al-Kufr."

(Imam al-Shawkani, "Nayl al-Awtar", Vol 4, Book 8, Dar al-Fikr, 2000, pg. 24).

In fact f we take the understanding of Imam Shawkani, it is also clear that he understands Dar ul-Islam in his own words as being any land which Muslims rule. To quote again from the article, which cites the Imam as follows;

al-Shawkani (sic: Zaidi [this mazhab attribution, as he may have been in origin but was not Zaidi but it is what was stated in the article]) said, “When we speak about a Dar (dominion) by whoever’s word being dominant, we mean if the command and prohibition is for the Muslims, in a way that no one from the Kuffar becomes dominant with his Kufr except by what is granted him from Islam, then that is considered Dar ul-Islam”

(al-Shawkani, "al-Sayl Jaraar alaa hadaiq al-azhaar", Vol. 4 pp. 571-572)

Imam Shawkani then elaborates in explicit terms that the meaning of kufr and kufr buwah (clear cut Kufr) is that the ruler becoming a non-Muslim in a manner that is in his words clear like the clarity of the sun (ka-wudooh ul-shams), in the same text and also in Dararayn ul-Muduyah and in Nayl ul-Awtar (this will be elaborated further in a forth coming article inshallah, but it suffices to say here that his position was the same as Imam al-Nawawi, Imam Ibn Hajar al-Asqalani and Badr ul-Din al-Ayni (as mentioned above)).

To return to the shafi’iyah and the position of Imam al-Bujayrimi (a source of Shafi’i fiqh today particularly his commentary on the great Khatib Shirbini’s Iqna); was mentioned previously:

He maintains that Dàr al-Islàm for the Shàfi'ï's can be a place where Muslims reside even if there are non-Muslims present, and further, even if non-Muslims were granted the right by Muslims to govern over it.

"On Dàr al-Islàm: meaning, that Muslims reside there, even if there were Ahl al-Zimma (non Muslims of the covenant) present, or it was conquered by Muslims who then agreed that non- Muslims would govern over it (Wa Aqarraha bi Yad il-Kuffàr), or they were living there and were expelled by the disbelievers from it."

"...And the Shàfi'ï's said: it (Dàr al-Islàm) is the entire land where Islamic rulings (Ahkàm al- Islàm) appear, and it is intended by the phrase 'appearance of the Islamic rulings', every one of its rulings; or Muslims live there even if there were Ahl al-Zimma (non-Muslims of the covenant) present with them; or it was conquered by Muslims who then agreed that non-Muslims would govern over it (Wa Aqarraha bi Yad il-Kuffàr); or they were living there and were expelled by the disbelievers from it.

This should hopefully clarify the Shubuhaat (apparent misconceptions) regarding the above discussion and where if any mistakes in quotations lay.

By Rashad Ali

Comment: My Appearance on Newsnight

In answer to questions raised about my Newsnight appearance:

Since my appearance on Newsnight some have been concerned that I shouldn't have provided the media with yet another reason to attack Muslims. However, I believe that this view is subscribed to by people who can only see the world from within the 'clash of civilisations' mindset. If one is looking at the problem as one of Islam vs. the West then of course it would seem as if by attacking HT I am attacking Islamic interests and furthering western ones.

However, I believe that the situation and problem is slightly more complex. Neo-Conservative led foreign policy is actually about curtailing real political powers that threaten American interests now, including Russia and especially China. The “Islamic threat” card is only used as a pretext to enter into lands to control oil reserves and resources against these two powers. Hence, it suits governments involved in foreign exploits to feed into the clash of civilisations agenda for their own foreign policy, and it suits Islamists to feed into it for their own recruitment. Both sides are polarising the world and want to polarise it for their ideological ends.
As a result a situation is rapidly developing whereby some Muslims are growing increasingly hostile to non-Muslims, and some non-Muslims are growing increasingly hostile to Islam and Muslims. Sadly, Islam is being blamed for the ills and excesses of Islamists, including the fact that it us who gave rise to Jihadism, which arose from the merging of Wahhabism and Islamism combined with Western sponsored oppression in the Arab world.

Therefore, in an attempt to help save my religion from being irrevocably tarnished by the political excesses of Islamists and Neo-Conservatives, and to allow non-Muslims to see that Islam is a religion independent from the political aims ascribed to it by Islamism, I am embarking on my campaign to distinguish Islamist politics from the religion. This does not mean that I will ignore foreign or domestic policy excesses undertaken in our name by our government here. Rather, it means that in the long term, I aim to present a balanced argument about the excesses of both sides and try to demonstrate that Islam is not the cause.


How will this help?

By doing this I hope to aid the cause of internalising Muslims to this society, so that Muslims are no longer perceived as angry and foreign outsiders, but rather as a British phenomenon with British politics as the mechanism to redress any grievances. Realising such an aim becomes difficult so long as the Islamist agenda of focusing all political energies to foreign conflicts, and declaring participation in British institutions as Haram (religiously proscribed) prevails. My stance essentially renders Islam as a spiritual and social force, devoid of any pre-defined Islamist politics surrounding it, though ordinary Muslims should engage in politics like any other citizen. Any politically active Muslims will therefore be Muslims engaged in politics as citizens of the UK, adopting the interests of society at large, and not as Muslims engaged in Islamist politics.

I believe that this way is the way of our Prophet (upon him be peace), and when he would call individuals to Islam he would call them to the creed, and not confuse them with political stances that change based upon the interests of Muslims (and are not inherent to the creed of Muslims). The Prophets message in Mecca was a call to the creed, and the Hadith of Muadh ibn Jabal going to Yemen demonstrates this too. Here the Prophet told Muadh to call them to Islam, and if they accept to the prayer, and if they accept to the Zakah. This highlights that for Muslims, the call was to the belief first and foremost.

The view that a Muslim must not criticise other Muslims in public:

This is interesting coming from those who attack our Ulema (theologians) in the media. The last time they did this they named specific Ulema individually and called them government agents.
I, on the other hand, criticised the ideas of a group, without slandering individuals, to defend Islam from being perceived as a political ideology (which means nothing except that which those interpreting it want it to mean based upon their political considerations at the time). They have attacked other Muslim Ulema by name to further their political ambitions of establishing an Islamist state on the ashes of regimes in the Muslim world.

Hence, my criticism of them was an invitation to non-Muslims to fully appreciate Islam. Their attack is an invitation to internal Fitna (civil strife and sedition) in Muslim lands. If non-Muslims liked my film and Islamists hated it, then that for me is a type of success, not failure. Because that is exactly what I want to achieve, I want non-Muslims to be speaking of Islam in a good way, which is what they are starting to do. A new trend is developing whereby it is being accepted that Islam is not the problem, but rather it is interpreted in a bad way by Islamists. Surely if this further increases peoples love for Islam that is a good thing?

The context of the quotes about killing millions:

The quotes I used in my Newsnight interview were extracted from the book “How the Khilafah was destroyed” by the groups second global leader, Abdul Qadeem Zalloom (listed on the official HT site as an adopted book, but it doesn't matter even if it is not because no book issued by the party can contradict adoption)

HT's Islamist Caliphate has a domestic policy aimed at forcibly annexing all Muslim countries as one (not agreed upon by Ulema and something that will only cause Fitna, or sedition, civil war and death en-masse). It also professes a foreign policy based around forcibly spreading Islam through their idea of “Jihad” (again, not agreed upon by the Ulema and actually very much misunderstood, if this misunderstanding is not corrected I believe that it will irrevocably damage the image of Islam).

Domestic Policy:

The quotes about killing millions that I mentioned were concerning HT's domestic policy:
“Hence it is imperative to restore this issue to its rightful place and to consider it as a vital issue, thus preventing the dismemberment of any country from the body of the Khilafah, even if this led to several years of fighting and even if it led to the killing of millions of Muslims” (p.197)
The defence against my quoting these words to date has been to insist that this quote concerns a civil war scenario when the Caliphate has a right to protect the territorial integrity of its borders as occurred in the US civil war.

This defence is deceptive. HT does not recognise borders between Muslim nations. What they mean by territorial integrity is the whole Muslim world, whether they are sovereign nations or not, because they do not recognise the right of Muslim nations to be sovereign. Thus forcibly annexing sovereign nations (expansionism) is deemed by them to be an internal civil war scenario. It is clear how their US civil war analogy breaks down.

“All countries in the Islamic world are considered as if they are one...Therefore the relationship with them is not considered within foreign relations with states, nor a part of the foreign policy, rather it should be part of a home policy. Therefore the Islamic state does not enter into any diplomatic relations or any treaties with them. It is necessary to work to unite them into one state, the state of the Khilafah.” (Hizb ut-Tahrir by Hizb ut-Tahrir p. 72)

Such a policy contradicts the Ijtihad of Imam al-Juwayni on what to do when there is no Khaleefah. And merely by declaring oneself the Khaleefah to enact the hadiths of killing the second Khaleefah is disingenuous. Because all the “Khaleefah” means is leader, as Nabhani (rh) says in Nitham al-Hukm, he can even be called President. Thus to overthrow a government and to claim that one is the Khaleefah and all others are second Khaleefahs that must be killed is factually wrong if there is no Kufr in other countries. Rather, one would simply become the 53rd leader of another legitimate country. Imam al-Juwayni says that the rulers must decide amongst themselves who the one Imam will be. Ultimately it is a policy issue, but it definitely is not in the interests of Islam to suddenly not recognise any surrounding Muslim nation and to forcibly embark upon annexing them...imagine how Iran would react, or Turkey!

It is also claimed that such was the policy of Abu Bakr (ra), the first of the four righteous Caliphs. This argument, however, assumes that such a consensus was arrived at by the Companions of the Prophet (saw) as a legal and not a political decision suited to a world of expansionist empires. This matter is subject to much debate, and so it suffices to say that mirroring such a policy today would not be conducive to the good name of Islam.

On the issue of opposing dictatorships:

HT has Turkey as its Majal (area where they are directly active in trying to penetrate the military to overthrow the government). Turkey is ruled by a popularly elected government. HT are not just opposed to dictatorships, but all Muslim countries today because they do not rule by their Islamist interpretation of Shariah law, thus they rule by “Kufr”. This includes Iran which is considered by HT to be Dar al-Kufr, and whose government and state are illegitimate, and ruling by Kufr, though Iranians directly elect their government and Iranian Shia Ulema claim in earnest that theirs is not a Kufr regime.

What will HT's policy be towards these Muslim states ruling by "Kufr"?

“Thus the rule by a Kufr system would be prevented even if this led to several years of fighting and even if it led to the killing of millions of Muslims and to the martyrdom of millions of believers”. (How the Khilafah was destroyed p.199)

And to justify such "Kufr" as Islamic with full knowledge, would mean believing in "Kufr", any Muslim believing in Kufr is an apostate. HT policy towards apostates is then clear:

“Hence, it is imperative to to put back this issue in its rightful place and consider it to be a vital issue, by killing every apostate even if they numbered millions”. (How the Khilafah was destroyed p.193)

This policy is not agreed upon by our Ulema, and propagating it will only damage Islam (if you caught the Dispatches programme aired on Monday night you would see my point).

A number of Islamic scholars from past centuries, such as the two Tabi'in (followers of the companions) Ibrahim al-Naka’i and Sufyan al-Thawri and also Abul Walid al-Baji are all reported to have held that apostasy is a serious sin, but not one that requires the death penalty. It is narrated by Sufyan al-Thawri that Ibrahim al-Nakhai'i was of the view that the apostate is not killed, rather his repentance is continuously sought. Sufyan al-Thawri then said, “This is the view that we take” (al-San'ani, abd al-Raziq, 'al-Mussannaf' vol. 10, page 166).

Ibn Hazm relates evidences in his Muhalla for this camp by saying:

As for he who says his repentance is permanently sought without recourse to killing him:

This is due to the narration of...Anas ibn Malik who said that Abu Musa al-Ash'ari killed Juhayna The Liar and his companions. Anas then said, “So I approached Umar ibn al-Khattab who said, 'what did Juhayna and his companions do?'”....so I said, “Amir al-Mu'minin, was there a way other than killing them?, Umar said, 'If I came across them I would have offered them Islam, and if they didn't repent I would have imprisoned them.'” and (due to what) ...Ibn Thawr said to Umar, “there was a man who apostatised so we killed him”. Umar said, “Woe be to you, if only you had left an opening for him, fed him every day with some bread and provided him with a cup of water for three days, then if only you had asked him to accept Islam on the third, for perhaps he could have returned. O Allah I wasn't present, I didn't order it and I didn't know”....

(Ibn Hazm, al-Muhalla, [Maktabat al-Turath] issue: 2195 'The Rule Regarding Apostates', vol. 11, p. 243)

In modern times, Mahmud Shaltut, Sheikh of al-Azhar, held the same view. The best thing to do politically is to leave apostates alone...Islam is not weak and never will be weak.

Foreign Policy:

To spread Islam to the world through “Jihad”:

“All other countries in the world, in the East or the West, are considered Dar al-Kufr and potentially Dar al-Harb (land of war), and the relationship with them is part of the foreign policy, and this relationship is defined by the demands of Jihad and the interests of Muslims and the Khilafah state according to the divine law” (Hizb ut-Tahrir by Hizb ut-Tahrir p.72)

“The meaning that Jihad is Fard Kifayah (a collective duty) originally is that we begin fighting the enemy even if he did not start fighting us. If no one from the Muslims begins fighting in any period of time, all Muslims then would have committed a sin by leaving Jihad. And therefore jihad is not a defensive war; it is in fact a war to raise the word of Allah (swt), and it is compulsory originally in order to spread Islam and to carry its message even if the disbelievers did not attack us.” (Hizb ut-Tahrir by Hizb ut-Tahrir p. 71)

Such an expansionist policy of offensive wars fails to consider the legitimate line of arguing that once a land allows the free practice of Islamic rituals it is considered Dar al-Islam (by some) or Dar al-Da'wah (land of invitation to Islam), and there is no Jihad in Dar al-Islam or Dar al-Da'wah, rather there is only Daw'ah (invitation to Islam). This is because if the Sabab (legal cause) of Jihad is the presence of obstacles to the Da'wah, and the purpose of Jihad is to remove those obstacles so that such Da'wah can take place, then where those obstacles no longer exist, due to the rituals of Islam and it's preaching being permitted by the state, then the Sabab for Jihad no longer exist in that land. This is a perfectly legitimate line of arguing backed by Prophetic tradition such as that narrated by Anas who said: “Wherever the Prophet, upon him be peace, raided some people he would not raid except in the morning. If he heard the call to prayer (Azan) he would refrain [from raiding], if he did not he would invade after dawn.” Moreover, al-Muzny reported that the Prophet, upon him be peace, said “If you have seen a mosque or heard a call to prayer, then don't kill anybody”. If the order in one Hadith was given to refrain from invading altogether, and in the other to refrain from killing anyone, then it would be fair to conclude that no violent war was sanctioned against a nation if the insignia (Sha'a'ir) of Islam were allowed to be freely practised therein. Therefore, according to this view, Jihad would only apply where Musilms (or anyone) are being oppressed and brutalised for practising their religion.

It is my view that HT's expansionist policy to rule the world is impractical, counter-productive and dangerous. It matters not that HT can educe a valid theological reasoning for this policy, since I am entitled to criticise weak opinions if they are counter-productive to the interests of Islam and humanity, and this one clearly is.

Islamist Denials over my role in the Newham college affair:

Some Islamists are intent on making the claim that the murder in East Ham college did not happen in the way that eye-witnesses such as myself have narrated. They have erroneously alleged that it was solely a drugs related murder. This is factually wrong by police records, court records, and by eye witness testimony (I was one of the many eye witnesses interviewed by the police). Islamist proponents of such a claim have failed to substantiate this by any evidence, and instead continue to insist that the murderer had no link whatsoever to HT. I was the HT representative and President of the Students' Union on site. The man convicted for the murder came on campus as my “friend” and "Party contact" about whom I used to report back to my local Party leadership, his name was Saeed Nur. Saeed's only link to that college was through us HT activists. He was not a student and the first time he came to campus he was asking to meet the “HT brothers”. Subsequently he would enter the college as our guest. The murder occurred due to Muslims of all ethnicities bonding on a "Musilm idenitity" to challenge an opposing gang of Nigerians, thus it was a gang murder, in which HT played no direct part. However, it was primarily us HT activists that provided that gang culture with a "Muslim" identity, and it was our guest and “HT contact” that was convicted for the murder. I am not absolving the Nigerian students of all blame. In fact, as I stated to the police at the time, it was the Nigerian student that took the first swipe at Saeed with his knife. My point has been about the atmosphere created that led to a constant environment of violent feuds between Muslim and non-Muslim students. Such an atmosphere was undoubtedly created by us HT activists.

I was the Students' Union President and HT activist that directly created this damaging atmosphere. I would like to remind readers that non-eye witness, secondary, non-student accounts posted on internet chat forums by Islamist supporters, claiming that the murder was solely drugs related are not credible sources. On one occasion a non-eye witness source who wasn't even a student on campus has relied on, and cited, their closeness to me personally to lend authority to their claim made on a chat forum that it was solely gang related. However, if they derive authority for their point from their association to me, yet I (an eye witness and the HT activist that invited Saeed Nur on campus) am saying differently, where does that leave such claims?

One final issue is about letting HT follow their Ijtihad:

This is a really strange argument! HT are the ones that don't let the governments and our Ulema who do not consider these governments as having to be religiously overthrown, follow their Ijtihad. HT are the ones who insist that they are on Kufr. I am merely saying that you cannot call a legitimate opinion Kufr.

As for all other matters of Ikhtilaf such as killing apostates, forcibly uniting lands etc...then these are matters of differing opinions. I have never said that one cannot speak out against a weaker opinion. All I have said is that HT must not call a weaker opinion Kufr, and thus cannot rebel against it. But to criticise weaker opinions is the right of every Muslim, and to account to the rulers comes under this right too.

Thus, I criticise and speak out against the very weak and legal extrapolations of the Jihadi's but I don't call them Kufr. Likewise, I have criticised HT's dogmatic view on the expansion of the Khillafah, but I do not call it Kufr. My criticism is that adopting and propagating such opinions in the world today is not in the interests of Islam, and since they are not Qati'i, the interests of Islam should come first.

Thus, HT has the right to criticise existing governments but also, cannot say that they are on Kufr if they are on legitimate opinions. Therefore, it has become abundantly clear that I do not have to stop criticising their Ijtihads, rather they have to stop calling other Ijtihads Kufr.

Evaluating Hizbut-Tahrir's Theo-political Stance (Updated 01/10/2007)

Bismillah al-Rahmān al-Rahim wa al-hamdu lillāhi Rabb al-Ālamin
Towards Political Engagement
Evaluating Hizbut-Tahrir's Theo-political Stance
- Part 1-
Maajid Nawaz

The first in a series of articles reviewing Islamist political theory

Introduction:

As followers of Hizbut-Tahrir (The Liberation Party) are by now aware, after affiliation to the Party since I was 16, I took the painful yet vital step of resigning from its UK leadership committee and leaving the Party. Members of the Party are rightfully owed an explanation. Acting on the advice of my friends in the UK Party leadership I delayed issuing this explanation from fear that my words would be misconstrued by others. Thus, with Allāh as my witness, I have taken the decision to finally issue this article after much delay and thought in order to clarify my stance and attempt to open up a new chapter in the mindset of politically active Muslims. In the current climate, I can only emphasise that I do not wish my critical voice to be exploited to support the call for proscribing Hizbut-Tahrir. Rather, those that are well versed in both Party ideology and traditional Islamic sciences are sufficiently equipped and duty-bound to redress the phenomenon of politically inspired theological interpretations. I would also state that my political stance against the tragic invasion of Iraq remains unchanged. Furthermore, these words should not be taken to mean that I support the brutal policies of the Muslim world’s dictators, rather political engagement is the civic duty of all who are able. Finally, I impress upon all people that Islām today is not in need of a politically inspired modernist reformation, which is actually the cause of our current crisis, rather a counter-reformation and a return to its true essence by Muslims insisting that their religion is not used merely to serve narrow political agendas.

I spent much of my time as a political prisoner in Egypt (2002-2006) evaluating and studying traditional Islamic sciences. With the passing of time it became ever clearer to me that rather than being the sole vanguard that represents an Islām that even Muslim jurists have misunderstood, Hizbut-Tahrir is inspired by a political ideology super-imposed upon an Islamic legal analysis. In other words, today's world in the eyes of Hizbut-Tahrir is analysed through a prism of political Ijtihād (theological legal reasoning). Their political Ijtihād (pl. Ijtihādāt) is the basis for a revolutionary call to transform Muslim countries from what is deemed Dār al-Kufr (contra-Islamic land) to Dār al-Islām (Islamic lands) and from what are considered Kufr (contra-Islamic) states to a unitary 'Islamic state'. This task entails the forceful overthrow of all regimes in the Muslim world as they are judged to be ruling by Kufr laws thus they lack Shari'ah legitimacy, the final arbiter in legal disputes. Authority for this political stance is gained from citing religious scripture interpreted via the Party's principles of Islamic jurisprudence. As my understanding of Islām grew, however, I realised that the very scripture and principles used by the Party to make its analysis do not actually support its call. Rather, and quite distressingly for me at first, the Party's own principles result in the exact opposite conclusion. It is with this introduction that I embark upon demonstrating how the Party's own theological, intellectual and legal principles, when applied to their political conclusions, result only in the invalidity of Hizbut-Tahrir's political stance.

Hizbut-Tahrir on Dār al-Islām1

The Islamic and Contra-Islamic Lands:

Party members are obliged to believe that the whole world today is Dār al-Kufr (contra-Islamic land), synonymous in its literature to Dār al-harb (land of war)2.

“These lands in which Muslims currently live throughout the world, their reality is that they are all Dār al-Kufr and not Dār al-Islām.”3

The Party leadership then stipulated two conditions for Dār al-Islām:

a) The land must be “governed by the laws of Islām.”4

b) “Security (Amān 5) is maintained by the security of Islām ie: by the authority and protection of Muslims inside and outside the land, even if the majority of its inhabitants are non-Muslims”.6

Dār al-Kufr is conversely defined as the land

“…governed by the laws of Kufr, and whose security is not maintained by the security (Amān) of Islām ie: by other than the authority and security of Muslims, even if the majority of its inhabitants are Muslims.”7

Proof for these two conditions is asserted rationally and with various Koranic verses and hadith narrations brought forward to support each condition. After listing evidence to demonstrate that the appearance of Kufr laws is sufficient to negate the first condition of Dār al-Islām, it is stated,

“So these texts indicate that to rule with anything other than the laws of Allāh is a matter which makes it obligatory upon Muslims to declare war against the ruler, and it is an evidence which indicates that implementing Islām is a condition for having Dār al-Islām, otherwise the ruler must be fought against.”8

Therefore, Party theory holds that there can be no 'Islamic State' without firstly the land being Dār al-Islām by these two conditions. The Party accepts, however, that security of Muslim lands is in the hands of Muslims. It is only by the absence of the first condition of ruling by Islām, therefore, that the lands are deemed Dār al-Kufr,

“...it is evident that all the current Muslim lands do not fulfil the condition of the laws of Islām. Though the security (Amān) of most of them is maintained by the security and authority of Muslims.”9

The land being Dār al-Islām, however, is not synonymous in Party literature to the regimes being Islamic. This is because a scenario is envisaged where a land may be Dār al-Islām, but then the ruler begins initiating what are considered Kufr laws. The Party believes that only in such circumstances are the people obliged to fight the ruler,

“The aim in the current situation is not to change a ruler who rules by Kufr in Dār al-Islām; the aim is rather to change the whole of Dār al-Kufr, including its thoughts and systems...If in Dār al-Islām, which is ruled according to the revelation of Allāh (swt), its ruler ruled with clear Kufr then the Muslims must forbid it, so that he reverts back to ruling according to Islām. In case he doesn't repent, it becomes imperative upon the Muslims to take up arms against him to force him to revert to ruling with the revelation of Allāh (swt).”10

Today, the world is believed by the Party to be Dār al-Kufr in origin due to the unprecedented move by Mustafa Kemal in dismantling the Ottoman Caliphate after the First World War, and colonialist occupation of other Muslim lands, eventually giving rise to client regimes. Therefore, fighting to remove today's rulers “who rule by Kufr” is deemed by the Party as being based on a misunderstanding of the reality and its Shari'ah rule, as such action only applies to rulers who initiate Kufr laws within an existent Dār al-Islām, whereas today the Muslims lands are already Dār al-Kufr.

Rather, the Party draws an analogy to the Prophet's (peace be upon him) own life in Dār al-Kufr, Mecca, up until he gained authority in Yathrib (later named Madinah) making it Dār al-Islām. The Prophet (peace be upon him) is perceived by the Party to have engaged in a purely political and intellectual mission to remove the Kufr system in place, until he (peace be upon him) amassed enough support from the military tribes of Yathrib that he “orchestrated a coup d'etat”11 removing the powerless king-to-be in Yathrib, 'Ubay ibn Sulūl. This interpretation is then used by the Party to call the military or other forces of power in Muslim countries (named in Party terminology the Nuşrah12, or material support) to remove illegitimate regimes by force in a coup d'etat.

“(This would) normally be done by the Party seeking to access the military in order to take the authority...After this the military would be capable of establishing the authority of Islām. Hence a coup d'etat would be the manifestation of a political change...”13

Therefore, the Muslim world being Dār al-Kufr is axiomatic to the Party's analysis. The aim being one of changing Dār al-Kufr to Dār al-Islām. It serves as their adopted legal premise to take from the early life of the Prophet (peace be upon him) the Party's method of intellectual and political struggle culminating in seeking a military coup. On the other hand, if the Muslim world was Dār al-Islām then, according to the Party's stance, the appearance of Kufr would simply oblige armed insurrection directly against the rulers.

“Announcing war against him (the ruler) if clear disbelief (Kufr Buwah) is seen from him after he was ruling by Islām is obligatory and it is religiously forbidden (harām) to refrain from performing it.”14

“But the duty to raise arms against the ruler and to fight against him if he showed clear Kufr, this applies only if the land (Dār) is Dār al-Islām, and the rules of Islām were implemented and the ruler subsequently showed open Kufr.”15

Consequently, it is crucial for the Party to insist that Muslim lands are Dār al-Kufr. If they hypothetically accepted that Muslim lands are Dār al-Islām yet still coupled this with their insistence that the states are ruling by Kufr they would only give credence (by their own principles) to the Jihadist16 methodology of armed insurrection and assassinating the ruler.

Hizbut-Tahrir's inconsistency in enacting its Ijtihād that all Muslim lands are Dār al-Kufr

Hizbut-Tahrir use the theory I have outlined above to advocate the theological illegitimacy of contemporary Muslim regimes, and therefore the religious obligation on each and every Muslim to overthrow them17 in a pre-defined strategic order18. The flaw here, however, is astoundingly obvious for any trained practitioner of Shari'ah law yet amazingly, and despite being the view of today's Islamic jurists, has not yet been popularised. Perhaps that is due to no one fully understanding what it is that Hizbut-Tahrir actually believe.

If it can be demonstrated that the Party’s theory is nothing but a legal opinion (Ijtihād), then the argument that opposing views are based on Kufr becomes unsustainable. According to the principles of Islamic jurisprudence (Usūl al-Fiqh), and even according to the Party's own ideas, any legal opinion (Ijtihād) is by definition inconclusive (Zanni) and thus non-binding on those who follow opposing legal opinions (Ijtihādāt). Consequently, using an opinion (Ijtihād) to enforce a conclusion of Kufr upon others by force is a contradiction in terms within Islamic jurisprudence, not to mention Party ideology. At best it is Wahhabite, and at worst it is the cynical use of Islām to justify what is essentially a political ideology.

Principles elucidated within the Party's own culturing process via their adopted books hold that legal opinions (Ijtihādāt) are insufficient for producing judgements of religious deviancy (Bid'ah) against opposing legal opinions (Ijtihādāt), not to mention Kufr.

“...the strength of the evidence is only according to the one who educed (Mustadill) it. Even if the manner which he educed it was his own and the definition was his own, as long as he relied on the semblance of an evidence (Shubha al-Dalil). This is because how the strength of the evidence is perceived differs from people to people due to their disparate perceptions of the Shari'ah evidence itself and due to the manner which they understand the Arabic language and the Shari'ah.”19

This is, in fact, one of the main arguments Party followers advance against their Wahhabite agitators when defending themselves against the latter's accusations of religious unorthodoxy. The Party holds that its followers are obliged to condemn misconduct (Munkar), as defined by their interpretation, whether it be Bid’ah or Kufr. However, a misconduct (Munkar) can only occur if the perpetrator is not following an opposing jurist’s Ijtihād. If, however, they are following a jurist on a legal opinion (Ijtihād) then they are absolved of sin and no misconduct (Munkar) has occurred even if their action is contrary to the Party’s own view. Rather, the mistake of the jurist in his legal judgement still gains divine favour. The only time a view is not recognised is if it runs contrary to conclusive (Qati’i) injunctions, as is mentioned in Party books,

“The jurist (Mujtahid) exerts his utmost effort to derive the rule. If he is correct in his exertion (Ijtihād) then he has two rewards and if he makes a mistake he will have one....The Companions of the Prophet upon whom be peace (Sahābah) have formed a legally binding consensus (Ijmā') that the jurist (Mujtahid) is not accountable in the Shari'ah rules regarding speculative jurisprudence (Fiqhi) issues...That is why the Companions (Sahābah) disagreed on speculative issues but never on the definite (Qati'i) issues. Concerning speculative issues the jurist (Mujtahid) is correct in what he has arrived at by his legal exertion (Ijtihād) even if he is liable to make a mistake in his opinion. However, being correct does not mean that he has hit the target because this does not agree with the reality of a speculative rule since the Messenger (saw) considered him mistaken (Mukhti'). What is meant by saying that the jurist (Mujtahid) is right is in terms that do not rule out the possibility of making mistakes and not in terms of hitting the true target (Isāba) which is contrary to mistake. Describing someone who makes a mistake in legal exertion (Ijtihād) as right (Musib) is in the meaning that the text rewards [sic] the jurist (Mujtahid) even when he makes a mistake and not in the sense that he did not make a mistake. Therefore, every jurist (Mujtahid) is right according to what he thinks is right but this does not rule out the chance that a mistake could have been made.“20

Therefore, if it can be illustrated that a) the classifications of Dār al-Islām and Dār al-Kufr are not conclusive (Qati’i), and b) that classical jurists held opposing yet valid criteria for the definition of Dār al-Islām; then those criteria would suffice in forcing the Party to accept that Muslim lands are not conclusively Dār al-Kufr, but are only so in their subjective legal opinion (Ijtihād). Any subjective legal judgement would then be bound to recognise the validity of, though not agree with, the opposing view. As such, no Kufr would exist and no misconduct (Munkar) would have occurred to remove. Instead, a wrong, but valid and divinely praised legal opinion (Ijtihād) would exist in its place. Those who fully appreciate both Party and Islamic jurisprudential thinking will grasp the importance of the point here. If there is no misconduct (Munkar), but only a wrong yet legally valid opinion (Ijtihād), then according to Party ideology and Islamic jurisprudence, this Ijtihād is an Islamic opinion, and not Kufr. Thus, it is an Islamic opinion that Muslim lands are Dār al-Islām. It is also an Islamic opinion therefore, that Muslim lands hold theological legitimacy. Moreover, if the Party insists on not recognising opposing legal opinions (Ijtihādāt) on this matter then theirs is the theologically illegitimate stance. When two opposing Islamic opinions clash, both are bound to recognise, though not agree with, the validity of the other. Consequently, once the existence of an alternative view is substantiated, the Party is theologically bound to recognise the validity of Muslim lands being Dār al-Islām,

“This is because difference of opinion in deduction between the scholars does not make the rule legitimate before a Mujtahid and illegitimate before another. Rather it is a Shari’ah rule before all Muslims as long as there is (even) an obscure evidence (Shubha al-Dalil) from the Shar’iah evidences before the deducer of the rule, and it is possible according to the linguistic and Shari'ah knowledge (Ma’ārif) that one can deduce this type of deduction.”21

All that remains, therefore, is to demonstrate how Hizbut-Tahrir's judgement on Muslim lands being Dār al-Kufr is not Qati'i, but rather is an inconclusive legal reasoning (Ijtihād Zanni). Upon comprehending the significance of this point one can understand why the Party's second global leader, the late Sheikh Abdul Qadeem Zalloom22 insisted that this matter was closed to debate and absolutely decisive,

“The reality of Muslims today is sensed by every Muslim; it does not require any explanation nor does it necessitate any elaboration. Their lands are ruled by Kufr systems, thus they are conclusively (Qat'an) Dār al-Kufr [with no debate!].”23

Proving that Judgements on the Land (Dār) are at Best Inconclusive (Zanni)

The first and most obvious way of demonstrating the inconclusive nature of Hizbut-Tahrir's stance, and thus the theological illegitimacy of enforcing their view that others are on Kufr, is by identifying the source of the terms used. Definitions of Dār al-Kufr and Dār al-Islām are not to be found in any verse of the Qur'ān or any hadith (prophetic traditions). One or two prophetic traditions (Ahadith), argued by many to be of weak authenticity, refer to the term Dār al-harb and another refers to Dār al-Kufr, but all fail to offer any definition of these terms. It is primarily due to this reason that the definitions are vastly differed over by the Jurists (Mujtahidin) as each one simply extracted what seemed plausible to him from scripture (see below). Consequently, even the very need for a definition, not to mention the definition itself, is an opinion (Ijtihād).

A second way of proving that the Party's definitions are inconclusive (Zanni) is by considering the scriptural citations used to arrive at them.24 The two passages (Ayāt) from the Qur'ān that are referred to, though in themselves forming a theologically definitive source for proof (Qati'i al-Thubūt), their link to this particular subject matter as conditions (Shart) for the validity of a land (Dār) is inconclusive (Zanni). As for the prophetic traditions (Ahādith) used by the Party to define these terms they form an inconclusive source (Zanni al-Thubūt) for proof as they are singularly narrated traditions (Khabr Al-Āhād). Such traditions are inconclusive according to the Party's own view and no matter what rule (hukm) is derived from them it can only but be inconclusive (Zanni),

“If the speech of the Legislator is inconclusive as a source (Zanniy al-Thubūt), such as non-Mutawātir Ahādith25, then the rule (hukm) included will not be conclusive, regardless of whether the meaning is conclusive (Qat’iy al-Dalālah) or not.”26

Thirdly, and astonishingly, the Party explicitly accepts that these terms are subject to valid legal differences (Ikhtilāf Shari'i) in the very area that the Party was founded to redress, i.e.: concerning how Dār al-Islām becomes Dār al-Kufr,

“Similarly there is no disagreement that the land of Islām (Dār al-Islām) is the land that submits to the rule of Islām and is ruled by Muslims...however they differed as to what changes Dār al- Islām into Dār al-Kufr. Some jurists (Mujtahidin) said that Dār al-Islām does not become a Dār al-Kufr except by three conditions: firstly, the appearance of the rules of Kufr in it. Secondly, that it is bordering Dār al-Kufr. Thirdly, that there does not remain in it any Muslim or non- Muslim under a covenant (Zimmi) secured by the first security (Amān) which is the security of Muslims.”27

The implications of admitting a valid difference on this opinion in an adopted book of the Party are huge28. According to this valid Islamic opinion most of the lands today considered by the Party to have become Dār al-Kufr, are still Dār al-Islām, and those who judge Muslim lands today using this legitimate opinion are perfectly within their rights to insist that Muslim societies and their systems are not in lands of Kufr. Moreover, the Party is bound to recognise their opinion as Islamic not Kufr, though not agreeing with it. Thus, by enforcing its opinion upon society that the Muslim world is Dār al-Kufr the Party is condemning something that is not a 'misconduct' (Munkar).

The author in the above citation is quite hostile to such an opinion and asserts that it has no basis in evidence, despite the Party stating in volume one of the same book,

“...the strength of the evidence is only according to the one who educed it. Even if the manner which he educed it was his own and the definition was his own, as long as he relied on the semblance of an evidence (Shubha al-Dalil). This is because how the strength of the evidence is perceived differs from people to people due to their disparate perceptions of the Shari'ah evidence itself ...”29

In this case the opinion referred to happens to belong to the foremost jurist (Mujtahid) and lawyer (Faqih) of Sunni Muslims (Ahl al-Sunnah), none other than the founder of the first school of Sunni law, Imām Abū hanifah himself30.

The Party, by making its inconclusive (Zanni) judgement that the world is Dār al-Kufr a basis for the illegitimacy of Muslim lands, is inherently contradictory. On the one hand, the Party accepts any legal opinion (Ijtihād) based upon a semblance of an evidence (Shubha al-Dalil) as valid, yet on the other, it refuses to tolerate the Islamic opinion that Muslim lands today are Dār al-Islām.

Quotations of Early Muslim Jurists and Lawyers (Mujtahidin and Fuqahā)31:

A fourth way to demonstrate this point is simply by listing the various views of past jurists and lawyers (Mujtahidin and Fuqahā), so as to demonstrate the sheer breadth of disagreement on this point. The views are categorised by school of thought,

The Shāfi'i school:

al-Imām al-Rāfi'i, second to none but al-Imām al-Nawawi in the Shāfi'i hierarchy states,

“It is not conditional to Dār al-Islām that Muslims reside there, rather being in the hands of the Imām and his Islām is sufficient.”32

al-Imām al-Māwardi, author of the influential 'Rules of Governance' (Ahkām al-Sultāniyyah) sourced heavily by the Party, believed,

“If it becomes possible to manifest ones religion (Din) in any Kufr land, then that land becomes by such a virtue Dār al-Islām. Therefore, residence therein is better than leaving due to the hope that others will embrace Islām.”33


Al-Imām al-Bujayrimī, a reliable (Mu'tamad) source of Shāfi’ī jurisprudence (Fiqh) maintains that Dār al-Islām for the Shāfi’ī's can be a place where Muslims reside even if there are Ahl al-Zimma (non-Muslims of the covenant) present, and further, even if non-Muslims were granted the right by Muslims to govern over it.

"On Dār al-Islām: meaning, that Muslims reside there, even if there were ahl al-zimma (non Muslims of the covenant) present, or it was conquered by Muslims who then agreed that non- Muslims would govern over it (Wa Aqarrūha bi Yad il-Kuffār), or they were living there and were expelled by the disbelievers from it."

"...And the Shāfi'ī's said: it (Dār al-Islām) is the entire land where Islamic rulings (Ahkām al- Islām) appear, and it is intended by the phrase 'appearance of the Islamic rulings', every one of its rulings; or Muslims live there even if there were Ahl al-Zimma (non-Muslims of the covenant) present with them; or it was conquered by Muslims who then agreed that non-Muslims would govern over it (Wa Aqarrūha bi Yad il-Kuffār); or they were living there and were expelled by the disbelievers from it".34

al-Imām al-Ba'lawi considers that,

“Any place at which a resident Muslim is capable of defending himself against hostile forces for a period of time is Dār al-Islām, where his judgments can be applied at that time and those times following it.”35

The Hanafi school :

Shams al-A'immah al-Sarakhsi, the source for hanafi jurisprudence, defines it as

“A place which is under the authority or ownership of Muslims and the proof is that Muslims are secure therein.”36

Al-Kāsāni states,

“There is no difference between our companions (the hanafi's) that Dār al-Kufr becomes Dār al- Islām due to the appearance (Zuhūr) of the rulings (Ahkām) of Islām therein.”37

The Judge (al-Qādi) Abū Yūsuf believed,

“The land is considered Dār al-Islām by the appearance (Zuhūr) of the rulings (Ahkām) of Islām therein even if the majority of its people where disbelievers, and it is considered Dār al-Kufr for the appearance of the rulings (Ahkām) of Kufr therein even if the majority of its people were Muslims” 38

However, it is incorrect to assume that al-Kāsāni's and Abū Yūsuf's reference to the 'appearance of the rulings of Islām' implies an absolutist interpretation towards implementing the Shari'ah on a state level as law, rather than merely safety to manifest such rulings. This is because a further analysis reveals that the concern of hanafi jurists was actually the safety to individually manifest such rulings. Ibn ‘Ābidin, an expert hanafi jurist stated,

“Indeed, Dār al-harb becomes Dār al-Islām by establishing the rulings (Ahkām) of Islām such as the Friday prayer and the 'Eid prayer; even if the indigenous non-Muslims remain therein and that country is not adjoined to Dār al-Islām.”39

Moreover, al-Kāsāni' himself, citing the founder of their school Abū hanifah as a source, completes his above quotation with the words,

“Prefixing the word 'Islām' to a land, and likewise the word 'Kufr', isn't actually intending Islām itself nor Kufr itself, but rather it is a matter of security and fear. This means that if there is absolute safety for Muslims it is Dār al-Islām… and if there is absolute fear for Muslims and absolute safety for non-Muslims then it is Dār al-harb.”40

In fact, Abū hanifa maintains that countries that have treaties with Muslim lands automatically become Dār al-Islām due to the safety ensuing therefrom.41

Consequently, it is clear that what the hanafi's meant by “the appearance of the rulings of Islam” was exactly that, their “appearance” in the practice of individuals throughout society, with the general safety and security provided to practice Islamic rituals, and not state laws per se.

This clarification highlights two points: firstly, that the hanafi definition is the same as the two Shāfi'is', al-Imām al-Māwardi and al-Imām al-Bujayrimi', entailing the right to live as Muslims in the land. Thus, as al-Sheikh Muhammad al-hamid also believed, it is generally agreed amongst this group that Dār al-harb becomes Dār al-Islām once the practice of Shari'ah is permitted in day to day life.42 Secondly, that the Party definition of the land being “governed by the laws of Islam” is an innovation and, contrary to popular belief within the Party, is not the same as the hanafi definition.

The Maliki school:

The Maliki reference point in jurisprudential matters, al-Dusūqi, states,

“a land in which the insignia of Islām (Sha'ā'ir43) are present”44

The Hanbali school:

Ibn Muflih writes that Dār al-Islām is every place where the rulings of Muslims are predominant.45

Ibn al-Qayyim al-Jawziyyah maintains that,

“Dār al-Islām is the land upon where Muslims descended and upon where the rulings of Islām were executed. Any land upon where the rulings of Islām were not executed was not Dār al- Islām.”46

Finally, Ibn Hazm the main source for Zāhiri jurisprudence states,

“Because the land (Dār) is associated to the person dominant over it, its ruler and its king.”47

Based upon the above, one can summarise the early jurists' views on Dār al-Islām into two broad areas,

i) Those who consider that ownership and security must be in the hands of a Muslim ruler;

ii) And those who consider residence and manifesting the insignia of Islam (Sha'ā'ir) as sufficient to classify a place as Dār al-Islām.

Early Jurists differing over how a land becomes Dār al-Kufr after having been Dār al-Islām

The issue differs however when considering the change of land from having once been Dār al-Islām to becoming Dār al-Kufr. Here, even those who stipulated the condition that the rulings of Islām had to have been present did not necessarily put this condition for when the land changes to Dār al-Kufr. This is the very area that Hizbut-Tahrir's second global leader, Sheikh Abdul Qadeem Zalloom48 claimed is so clear cut that no debate is needed. There are, however, roughly four views on this point,

1) Lands that have been deemed Dār al-Islām continue to remain so, and do not become after that Dār al-harb or Dār al-Kufr. This view has been ascribed to some of the Shāfi'i's and the apparent meaning from the words of the Imāmiyyah school.49

2) Dār al-Islām becomes Dār al-Kufr by the appearance of Kufr therein or by its occupation by disbelievers (Kuffār). This is the view of al-Qādi Abū Yūsuf and al-Imām Muhammad al-Shaybāni (Abū hanifah's two disciples), the Hanbali's and some of the Zaydi's and Mutazilites.50

3) Dār al-Islām does not become Dār al-Kufr merely by the appearance of Kufr as long as its inhabitants are Muslims who are able to survive therein, defend their religion (Din) and establish some of the insignias (Sha'ā'ir) of Islām such as the call to prayer (Azan), Friday prayers, congregational prayers and 'Eid. This is the view of the Malikis and some latter day jurists from the Shāfi'is and Ibadites.51

Here, and before moving to the next view, we make mention of the Fatwa52 of al-Imām al-Ramli, the Shāfi'i jurist, concerning the people of 'Aragon' in Andalusia who sent him a query after the fall of their town to the Franks. Al-Imām al-Ramli was asked concerning resident Muslims under the protection of a Christian Sultan who usurped power over them and taxed their land. He did not oppress them or abuse their money or persons. They had mosques in which to pray, they could manifest Islamic insignia (Sha'ā'ir) and they could establish the Shari'ah of God openly. Did they have to perform the emigration (Hijrah) or not? Al-Imām al-Ramli answered that the emigration (Hijrah) from their land was not obligatory due to their ability to manifest their religion (Din) there and because the Prophet (peace be upon him) sent 'Uthmān on the day of hudaybiya to Mecca because there he was able to manifest his religion (Din)...On the contrary, it is not permitted to emigrate because it is hoped by their stay that others will become Muslims. Also, because it is Dār al-Islām and if they left it the land would become Dār al-harb (synonymous to Dār al-Kufr).53

4) Finally, Dār al-Islām does not become Dār al-Kufr except by three conditions:

i) The appearance of the rulings of Kufr therein

ii) Whilst it is neighbouring Dār al-harb in such a way that there is no other Dār al-Islām between them.

iii) That no Muslim or non-Muslim under a covenant (Zimmi) remains safe with the first security that the guardians of Muslims established therein.

As has already been stated above, this view is explicitly recognised by the Party in its books and is the view of al-Imām abū hanifah54 and some of the Zaydis. Al-Imām abū Zahra also narrates this view from al-Imām abū hanifa and adds one more condition, namely that the army or authority no longer remains under the control of the Muslim ruler.55 Al-Imām ibn 'Abidin, a hanafi jurist, states that it is clear from this that if the rulings of Islām and the rulings of Kufr were implemented together the land does not become Dār al-harb.56 This view rather gives preference to the security and safety of citizens as is elaborated by al-Sheikh Muhammad al-Hamid,

“As for the Fatwa’s claim that India is Dār al-harb it is not in its generality true. Because areas where Muslims reside and there is a remnant of Islām’s rules - even if this is limited to marriages and what pertains to them, for example - are considered Dār al-Islām. Dār al-Islām does not become Dār al-harb except under three conditions, (a) that the security of Muslims through their leader no longer exists, and the security of non-Muslims has taken its place; (b) that they have been surrounded from all sides such that it is impossible for the aid of Muslims to reach them; (c) and then not a single one of Islām’s rule remains therein.”57

The Opinions of Some Contemporary Islamic Lawyers Regarding Dār al-Islām and Dār al-Kufr:

Sheikh Muhammad al-'Afifi quotes in his Fatwa, Defending the Transgressed by Censuring the Reckless against the Killing of Civilians regarding a Shafi’i definition of Dār al-Islām,

“…Muslim scholars have classified the territories in this world into: Dār al-Islām [its synonyms

Bilād al-Islām or Dawla Islāmiyya; a Muslim state or territory or land or country, etc.] and Dār al-Kufr [a non-Muslim state, territory, etc.] The definition of a Muslim state is: “Any place at which a resident Muslim is capable of defending himself against hostile forces for a period of time is a Muslim state, where his judgments can be applied at that time and those times following it.”58 59

Sheikh Muhammad al-'Afifi then comments,

“By definition, an area is a Muslim state as long as Muslims continue to live there and the political and executive authority is Muslim. (Think about this, for the Muslims lands are many, varied, wide and extensive; and how poor and of limited insight are those who have tried to limit the definition of what a Muslim state must be, and whether realising it or not thus try to shrink the Muslim world).”60

After discussing the issue of Dār al-Islām and Dār al-harb Sheikh Nūh Keller writes, quoting from his Sheikh, Nūh ‘Ali Salman, regarding Dār al-harb,

“…which effectively means that none of the lands that Islām has spread to and in which something of it remains can be considered an enemy land.”61

What has been quoted above, from early and contemporary scholars, is by no means exhaustive. Nevertheless it provides ample evidence to substantiate the claim that the definitions are widely differed over. Preference is not expressed here for one definition over another as that is not the subject of this article. Rather, the aim is to show that Hizbut-Tahrir is bound, by virtue of its own ideas, to recognise that the lands today are Dār al-Islām because those who believe that they are have abundant scholarly material to rely upon. The Party may not agree with their definition, in fact it may still believe that the lands are Dār al-Kufr but what it cannot do (by its own principles) is enforce its view upon Muslims by force and condemn the lands today as Dār al-Kufr when other and valid Islamic definitions consider it Dār al-Islām.

Is this not a semantic debate?

This debate is absolutely not one of semantics. In considering this matter one should reflect upon why jurists of the past entered this discussion. Jurists deemed it necessary to define Dār al-Islām for the purpose of settling whether emigration (Hijra) was obligatory from that land, i.e. whether Muslims could live there in peace and security as long as they could practice their religion in such lands, or whether the obstacles to the practice of the religion would need to be removed through fighting (Jihād) (for a discussion of this issue related to the Hijra see, Ibn Rushd Senior (d. 520/1122), Al-Muqaddimat, 4 vols. (Beirut: Dār al-Fikr, N.d.), 1:374 {on the margins of al-Mudawannah al-kubrā}).

If Hijra was considered necessary it meant that there were obstacles to the Islamic call (Da'wah) in such a land as it would not allow the practice of Islamic worship ('Ibadāt). Here, historically, the Muslims' state would begin Jihād to remove such obstacles to the practice of the religion, and once that was done the land was deemed Dār al-Islām.

In the absence of the need for Hijrah, (i.e. when the land is Dār al-Islām because Muslims were allowed to practice their religion in peace and security), Muslims were commanded not to invade because they would hear the call to prayer (Azān) i.e. the inhabitants of such a land were not to be fought because they allowed Muslims to manifest the insignia (Sha'ā'ir) of Islam. This is clearly demonstrated in Prophetic Hadīth literature. It was narrated by Anas (r.a.) that:

“Wherever the Prophet, upon him be peace, raided some people he would not raid except in the morning. If he heard the call to prayer (Azān) he would refrain [from raiding], if he did not he would invade after dawn.”

Moreover, al-Muzny reported that the Prophet, upon him be peace, said:

“If you have seen a mosque or heard a call to prayer, then don't kill anybody”.

If the order in one Hadīth was given to refrain from invading altogether, and in the other to refrain from killing anyone, then it would be fair to conclude that no violent war was mandated against a nation if the insignia (Sha'ā'ir) of Islam were allowed to be freely practised therein. Therefore, according to this view, Jihād and Hijrah would only apply where Muslims, or anyone, are being oppressed and brutalised for practising their religion. Hence this debate is far from being a debate over mere terms. It is in this light that al-Imām al-Bujayrimī's above quote should be viewed, for he clearly states that in the Shāfi’ī school a land can be considered Dār al-Islām even if it were handed over by Muslims to non-Muslims for them to rule over,

“...or it was conquered by Muslims who then agreed that non-Muslims would govern over it (Wa Aqarrūha bi Yad il-Kuffār)”.

This is how the matter of defining the terms arose, and thus the legal issue at dispute was: by allowing Muslims to practise their religion do the rulers of such lands where this occurs guarantee their rule? Or does it require more than that to guarantee the continuation of the existent ruler, such as him becoming a Muslim, or his "ruling by the Sharī'ah". Once he became a Muslim, there was another discussion about how to subsequently invalidate his rule, is it by him becoming a disbeliever or merely a transgressor.

Hence, though I have not stated my own preference, this issue is absolutely not one of semantics. The matter of Dār al-Islām used to affect (in the days of expanding Empires) the issue of whether the Muslim army would invade any given land or not i.e. what is the bare minimum expected for such a land to be left alone? Is it just that they allow Muslims to practise their religion? Or is more required, such as the ruler being a Muslim?

It is for this reason that the scholars ('Ulema) of India gave the Fatwa that India was Dār al-Islām under the British, because Muslims were still allowed to practise their religion. Based upon these religious rights the authors of this historic Fatwa accepted co-existence. I state this not to take away the right to resist occupation, rather to show that for some 'Ulema the decision to resist in such circumstances is a strategic and not religious matter.

Another Fatwa in Algeria (1841) ruled by the same thing: here the French general Bugeaud was being fought by a Wahhābite leader by the name of 'abd al-Qādir. 'Abd al-Qādir declared that Muslims must not submit to the rule of disbelievers, and obtained a Fatwa to this effect from Fez. The Sūfi order of Tijāniyyah (who rivalled the Wahhābite 'abd al-Qādir) also sought a Fatwa, which was requested from Qayrawān, the famous religious centre in Tunisia.

The Qayrawān Fatwa declared that, having fought but failed, it was acceptable for Algerians to cease fighting provided that the French promised to allow them to practise their religion and did not dishonour their women. Again, what this Fatwa demonstrates is when a shift occurs from the religious obligation of Jihād to making resistance a strategic decision. Towards the middle of the nineteenth century, three of the four Sunni schools of law (Mazāhib) had adopted this view.
(see "Muslims Under non-Muslim Rule by Yahya Michot, foreword by James Piscatori, page xiii.)

Readers may or may not agree with this view, but one thing that cannot be argued is that definition of Dār al-Islām is a semantic issue. Rather, the way in which it is defined affects the minimum threshold from which a jurist would guarantee security to the land's ruler in return for security to practice Islām.

This minimum threshold is the very matter disputed over in the various definitions. Moreover, HT define this issue of minimum threshold (ie: the issue of when the security of a ruler is secured in return for the security of Islam) in an unprecedented way. They insist that for the land to be Dār al-Islām, it must be “ruled by the Sharī'ah” on a state level. Thus, for HT, anything less than that renders the ruler as being removable. However, this is not the same minimum threshold adhered to by other jurists.


If Others are on Valid Legal Opinions (Ijtihādāt) Why Can Hizbut-Tahrir Not Follow its Own Legal Opinion (Ijtihād) Which is also an Islamic Opinion?

A question that is raised by Party activists after hearing the above argument is why, if their view is one amongst many, should they also not be left to practise their opinion. The one who asks this question, however, has failed to grasp the essential point. According to the Party's own thoughts, anyone is perfectly within their rights to hold an Islamic opinion but cannot condemn others who are also on Islamic opinions. The Party may believe what it wishes, but cannot enforce its opinion on others or label other opinions as illegitimate, where the opinion it is trying to remove is also an Islamic one. Party literature states,

“This is because difference of opinion in deduction between the scholars does not make the rule legitimate before a Mujtahid and illegitimate before another. Rather it is a Shari’ah rule before all Muslims as long as there is (even) an obscure evidence (Shubha al-Dalil) from the Shar’iah evidences before the deducer of the rule... ”62

Consequently, if the land is Islamic according to a valid opinion then no misconduct (Munkar) exists in the Muslim world that requires forceful removal. Party members are told by party books that they cannot behave as if other opinions are illegitimate simply because they disagree with them, rather they must recognise them. Therefore, party members must recognise that the lands being Islamic “is a Shari’ah rule before all Muslims”.

Also, in any matter of legal differences of opinion (Ikhtilāf Shari'i) the Party accepts the legal maxim 'the ruler of the land settles disputes' (Amr al-Imām Yarfa'u al-Khilāf). Consequently, once it is accepted that the definitions of Dār al-Islām are differed over, according to this principle the Party believes that all Muslims must abandon their own individual legal opinions (Ijtihādāt) and obey that of the rulers who adopts the one which he sees fit,

“If the Caliph (Khalifah) adopts a hukm which conflicts with the hukm arrived at through his (a scholar's) Ijtihād, then he (the scholar) is obliged to leave the conclusion of his Ijtihād and take the hukm which the Imām (leader) has adopted, because the Ijmā' of the Companions (al- Sahābah) has taken place on the fact that 'the order of the leader (Imām) settles disputes' and that his order is to be implemented on all Muslims.”63

It cannot be said here (though no doubt it will be) that rulers of today are not the true leaders because they rule in Dār al-Kufr and thus they have no authority to adopt on matters of legal difference (Ikhtilāf Shari'i). This cannot be said because it concerns the very topic of debate (Muhall al-Nizā') and is consequently a circular argument. If the very topic itself is subject to a valid dispute then it can only fall to the leader to adopt and thus agreement with the ruler is irrelevant as long as he adopts an Islamic opinion. Moreover, it cannot be asserted that this principle is specific to the Caliph because the maxim in Arabic actually uses the word leader (Imām) and furthermore, the Party considers that the name is interchangeable between Caliph (Khalifah), leader (Imām), President (Ra'is) Prince (Amir), Sultan or anything else that denotes such an authority.64 Consequently, the matter revolves around whether the existent rulers are the authority within Dār al-Islām, and that is the very subject matter that is differed over and is being adopted upon. Consequently, one can believe that the Party's opinion is the strongest Islamic legal opinion (hukm Shari'i), however since those in authority do not hold that opinion, but are on another Islamic opinion, all are bound to follow the leader's adoption. This is because 'the opinion of the leader (Imām) settles disputes' (according to the Party's own thoughts). In this way one can still believe the Party opinion to be the strongest legally, yet is bound not to act on it because the contrary opinion is adopted by the ruler.

In summary, the Party cannot pursue its own opinion because according to its own principles the ruler has the right to adopt from the various opinions, as long as he adopts an Islamic definition. For the Party to insist on following its own opinion and trying to remove a ruler who also adopts a valid definition of Dār al-Islām based on a valid legal reasoning (Ijtihād) is akin to what Ibn Abdul Wahhāb did in the Ottoman Caliphate. The Party criticised Ibn Abdul Wahhāb for pursuing his legal opinion (Ijtihād) that the Ottoman state was upon Kufr because, according to the Party, the Ottomans were also on valid Islamic opinions,

“Muhammad ibn Abdul Wahhāb, whose school of thought (Mazhab) had been Hanbali, made Ijtihād (legal judgements) in a host of matters and deemed that the Muslims who followed other schools (Mazahib) differed with his opinion in such matters. Hence, he set about calling for his opinions, working towards implementing them and attacking the other Islamic opinions fiercely...(p.11) they brandished the sword to fight the Muslims and to force them to abandon what they carried in terms of opinions alien to the Wahhābi school (Mazhab), and to adopt the opinions of the Wahhābi school(Mazhab)...”65

One can therefore ask the same question, what was wrong with Ibn Abdul Wahhāb following his valid legal opinion (Ijtihād) to rebel against the Ottoman Caliphate?

Conclusion

To conclude, having shown that the lands are Dār al-Islām according to other criteria, the Party must accept that it cannot enforce its conclusion of Kufr upon valid Islamic opinions. Hizbut-Tahrir is thus faced with two choices: they must either,

i) Accept the lands are Dār al-Islām and go on to insist that there is manifest Kufr (Kufr Buwāh) in the laws of these lands, in which case the Jihadist method is obligated upon them according to the Party's own ideas. The invalidity of this conclusion (again from the Party's own ideas) is the subject of my next article.

ii) Or accept that the lands are Dār al-Islām and that there is no manifest Kufr (Kufr Buwāh) present therein, but rather and at best, a misapplication of the Shari'ah. Hence, political reform is needed by working with the regimes to encourage change, as it was during the last days of the Ottoman Caliphate. This stance accommodates reformists and opposition camps vis-a-vis dictatorships in the Muslim world, and places a civic duty upon all to work for political, intellectual and social reform, but essentially means that the states are not theologically illegitimate and so must not be removed by force.

For the Party to continue upon its path of insisting that even the more representative of Muslim regimes, such as Turkey or Iran, must be removed by force in a military coup de etat is not sustainable by their own theological tenets. There is however, one reason why Hizbut-Tahrir may continue despite its inconsistency with Islam; because Party members may believe in a political ideology irrespective of whether it is consistent with Islam or not, and that ideology is what has come to be known as Islamism. Little wonder then, that they must close the debate on the issue of Dār al-Islām and insist that the matter is self evident regardless of such a clear theological line to the contrary,

“The reality of Muslims today is sensed by every Muslim; it does not require any explanation nor does it necessitate any elaboration. Their lands are ruled by Kufr systems, thus they are conclusively (Qat'an) Dār al-Kufr [with no debate!]”66

Consequently, as some have correctly observed, the tension that exists within Party ranks between its ideology and its politics begins from the Party's very inception. It exists within its raison d'etre.


1 All effort has been made to reference page numbers of citations accurately. Where both the original Arabic and the translation were available, both sets of page numbers have been given. Some page numbers have been taken from electronic copies of the books and this has been clearly indicated. These may not correspond exactly with other electronic versions or hard copies.

2 'The Way For Revival', p..3 (now known as 'The Method of Hizbut-Tahrir for Change' by Hizbut-Tahrir [al-Khilāfah Publications]), corresponding to the Arabic 'Minhāj hizb-ut-Tahrir fi al-Taghyir', p. 6.

3 'The Way For Revival' op.cit., p.2, Arabic p.5.

4 'The Way for Revival', op.cit., p.3, Arabic p. 5.


5 Amān is correctly rendered into English as “safety” not “security”. “Security” is properly known as Aman (without an elongated last vowel ). This subtle translation difference has relevance when considering that the classical definitions of Dār al-Islām mostly hinge upon the issue of “safety” to practice ones religion (Din) and not on the issue of “security” being in the hands of a Muslim army. See note 32 onwards.

6 'The Way for Revival', Ibid.

7 'The Way for Revival' Ibid.

8 'The Way for Revival', p. 5, Arabic p. 7.

9 'The Way for Revival', p6, Arabic p, 8.

10 'Hizbut-Tahrir', by Hizbut-Tahrir (al-Khilāfah publications), p. 10., Arabic p. 5.

11 'The Method to Re-establish the Khilāfah and Resume the Islamic Way of Life', Members of Hizbut-Tahrir in Britain (al-Khilāfah Publications), p. 105.

12 'The Way for Revival', op.cit., p. 38-40, Arabic, p. 44-46

13 'The Method to Re-establish the Khilāfah and Resume the Islamic Way of Life', op.cit., pp. 105-6.

14 al-Nabhāni, Taqi ud-Din., The Islamic Personality 'al-Shakhsiyyah al-Islāmiyyah', (al-Khilāfah Publications) as adopted and amended by Hizbut-Tahrir, vol. 2, (electronic) pp. 228, Arabic p. 261

15 'The Way for Revival', op.cit., p21, Arabic p 25.

16 It is important to note here that just as Islamism is not the same as Islam, Jihadism is not the same as Jihad.

17 'Hizbut-Tahrir', op.cit., p. 11, Arabic p. 6.

18 'Hizbut-Tahrir', op.cit., p. 17, Arabic p. 7.

19 al-Nabhāni, Taqi ud-Din., The Islamic Personality, op.cit., vol..1 (electronic version) p. 362, Arabic p. 252.

20 al-Nabhāni, Taqi ud-Din., The Islamic Personality op.cit., (electronic version) vol. 1 p. 298, Arabic p. 208

21 al-Nabhāni, Taqi ud-Din., The Islamic Personality op.cit., vol. 2, (electronic version) p. 105-6, Arabic p. 117.

22 God rest his soul (Rahimahu Allāh)

23 Zalloom, Abdul-Qadeem, How the Khilāfah was Destroyed 'Kayfa Hudimat al-Khilāfah' (al-Khilāfah Publications), p.201. Words in the square brackets are from the Arabic original p. 202

24 See 'The Way for Revival', op.cit., p.4-5, Arabic p. 6-7.

25 A Mutawātir hadith in Party literature is a hadith that affords certain knowledge('Ilm) of its prophetic origins. For such a status to be reached it must have been narrated in each level (Tabaqah) of its narrative chain (Sanad) by a group of people in such a way that it makes it impossible for them to have colluded over its contents. See, al-Nabhāni, Taqi al-Din, The Islamic Personality ' op.cit., as amended and adopted by Hizbut-Tahrir (2005 Edition 6) vol. 3 (electronic) p. 82.

26 al-Nabhāni, Taqi ud-Din., The System of Islām, 'Nizām al-Islām' adopted by Hizbut-Tahrir (al-Khilāfah Publications), (electronic) p. 47, Arabic p. 75

27 al-Nabhāni, Taqi ud-Din., The Islamic Personality ', op.cit., as adopted and amended by Hizbut-Tahrir, vol.2, (electronic) p. 218-19, Arabic p. 249. The author expresses disagreement with this opinion by stating, “This opinion is not based upon an evidence;rather it is merely a description of the reality of the land.” This does not mean that he fails to recognise its validity, but rather is expressing his view that he considers it as unsubstantiated by any evidence. He makes similar judgements upon other valid Islamic opinions too, such as his view on the legal principle of 'Juristic Preference' (Istihsān) of the hanafis, where he states that it is “not an Islamic evidence, rather it is ruling (hukm) by a whim, it is abandoning the divine ruling (hukm Shari'i)...but the ruling arrived at by it is considered a divine ruling (hukm Shari'i) because it has a semblance of an evidence (Shubha al-Dalil).” See: The Islamic Personality ', op.cit., vol. 3, (electronic) p. 426.

28 Adopted Party books are those books that are obligatory for a member to believe in and propagate. Members must not openly criticise adopted books even if they disagree with them. Unadopted books are written by Party members or leaders and are not inconsistent with Party adoption, however members are not obliged to believe in their contents.

29 al-Nabhāni, Taqi ud-Din., The Islamic Personality ' op.cit., vol. 1, (electronic version) p. 363, Arabic p. 252.

30 See al-Kāsāni, Badā’i‘ al-Sanā'i, vol. 9, p.519, see also Ibn 'Ābidin, al-Hāshiyyah.

31 Special thanks is given to al-Sheikh Shahrul Hussain al-Azhari for his Phd research in this field, and to other friends for their invaluable contribution..

32 Ibrāhim, Nājih., et al, A River of Recollections 'Nahr al-zikrayāt' (Maktabah al-Turāth al-Islāmiyyah), p170-1, quoting al-Rāfi'i in Fat'h al-'Aziz

33 As per al-Imām al-Shawkāni in 'Nayl al-Awtār', (Dār al-Kutub al-'Ilmiyyah, Beirut), vol. 4, Section 8, page 29, where al-Shawkāni expresses his disagreement with this view.

See also: al-Imām al-Māwardi, al-Hāwi al-Kabīr 18 vols. ed. A. M. Mu’awwad and A. A. ‘Abd al-Mawjūd (Beirut: Dār al-Kutub al-’Ilmiyah, 1414/1994), 14:104.

34 See for the first quote: al-Bujayrimi, Sulaymān, Sharh al-Bujayrimi ‘ala al-Khaţib, edited by Maktab al-Buhūth wa al-Dirasāt, Dār al-Fikr (1998), Beirut; vol. 4, pp. 331-332.

See for the second quote: Al-Bujayrimī, Sulaymān, Hāshiyat al- Bujayrimī, 220/4 and Nihāyat al-Muĥtāj, 81/8.

35 Ba’lawi, Abdur-Rahmān, Bughyat al-Mustarshidin fi Talkhis Fatawa ba’d al-Muta’akhkhirin. Bulāq, 1309 H, p. 254

36 al-Ţariqi, al-Isti‘āna, p.170

37 Al-Kāsāni, Badā’i‘, op.cit., vol. 9, p.519

38 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Abū Yūsuf narrated in al-Mabsūt by al-Sarakhsi.

39 See al-Būţi, Muhammad Sa'id Ramađān, Qađāya Fiqhiyya Mu‘āşarah, (Maktabah al-Fārābi, Damascus 1994) p. 182.

40 Al-Kāsāni, Al-Badā'i’, op. cit. vol. 7, pp. 130-131. See also, Ibrāhim, Nājih., et al, op.cit., p170-1, quoting al-Kāsāni' narrating Abū hanifah's view in Badā’i‘ al-Sanā'i.

41 Al-Ţariqi, Al-Isti‘āna, op.cit., pp.176-178, Abū Zahra, al-‘Ilāqāt al-Dawliyyah, op.cit., pp. 58-60

42 al-hamid, al-Sheikh Muhammad, Rudūd ‘ala al-abāţil wa al-rasā’il (y44), 2.267-79), as translated by Sheikh Nūh Hā Mim Kellar, Reliance of the Traveller (Amāna Publications), Notes and Appendices p.946. See also al-Kāsāni, Badā’i‘, op.cit., vol. 9, p.519 , Zaidān, Ahkām al-Zimmiyyin, pp.18-19

43 The insignia of Islam are those aspects by which Islam's presence is recognised in any given place, such as the call to prayer or Mosques.

44 al-Dusūqi, Shams al-Din, Hāshiyah al-Dusūqi 'ala al-Sharh al-Kabir (Ihya al-Kutub al-'Arabiyya) vol. 2, p.188.

45 Ibn Muflih, Muhammad, al-Ādāb al-Shar‘iyyah (Mu'assasah al-Risālah) edited by Shu’aib al-Arnauţ and ‘Umr al-Qayyām, Beirut; vol. 1, pp.211-212, 1996

46 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Ibn al-Qayyim al-Jawziyyah from 'Ahkām ahl al-Zimmah.'

47 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Ibn Hazm in al-Muhalla.

48 God rest his soul (Rahimahu Allāh)

49 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Tuhfah al-Muhtāj by Ibn hajr , Nihāyah al-Muhtaj by al-Ramli and Rawđah al-Ţalibin by al-Nawawi. See also al-Kāsāni, Badā’i‘, op.cit., vol. 9, p.519

50 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Bada'i al-Sana'i', al-Mughni by Ibn Qadāma and al-Mabsūt by al-Sarakhsi

51 Ibrāhim, Nājih., et al, op.cit., p170-1, quoting Hāshiyyah al-Dusūqi and al-Anwār li A'māl al-Abrār and Nihāyah al-Muhtaj

52 A Fatwa is a legal opinion binding only upon the questioner.

53 See the Fatwa of al-Imām al-Ramli in the notes of al-Fatawi al-Kubra al-Fiqhiyyah by Ibn hajr al-'Asqalāni

54 As related by al-Kāsāni, Badā’i‘, op.cit., vol. 9, p.519

55 Abū Zahra, al-‘Ilāqāt al-Dawliyyah, p. 57

56 Ibrāhim, Nājih., et al, op.cit., p170-1 quoting Ibn ‘Ābidin from Hāshiyyah Ibn ‘Ābidin

57 al-hamid, al-Sheikh Muhammad, Rudūd ‘ala al-Abāţil wa al-Rasā’il (y44), 2.267-79), as translated by Sheikh Nūh Hā Mim Kellar, Reliance of the Traveller (Amāna Publications), Notes and Appendices, p.946.

58 All brackets are present in original text

59 Ba’lawi, Abdur-Rahmān, Bughyah al-Mustarshidin fi Talkhis Fatawa ba’d al-Muta’akhkhirin. Bulāq, 1309 H, p. 254

60 Al-Akiti, Sheikh Muhammad Afifi, Mudāfi’ al-Mazlūm bi Radd al-Muhāmil ‘ala Qitāl man lā Yuqātil, Question 7. Brackets present in original text.

61 Keller, Nūh Hā Mim, Reliance of the Traveller, op.cit., p. 947.

62 al-Nabhāni, Taqi ud-Din., The Islamic Personality 'op.cit., (electronic version) vol. 2, p. 105-6, Arabic p. 117.

63 al-Nabhāni, Taqi ud-Din., The Islamic Personality ' op.cit., vol. 1, (electronic version) p. 323-4, Arabic p223-4, See also, The System of Islām, 'Nizām al-Islām' adopted by Hizbut-Tahrir (al-Khilāfah Publications), (electronic) p. 48, addition in square brackets from original Arabic (edition 6 [2006] electronic) p. 76

64 See al-Nabhāni, Taqi ud-Din, 'The Ruling System in Islam', 'Nizām al-hukm fi il-Islām' (al-Khilafāh Publications) as adopted and amended by Hizbut-Tahrir, (electronic) p. 22, Arabic pp. 49-50.

65 Zalloom, Abdul-Qadeem, ‘How the Khilāfah was Destroyed’ op.cit., pp. 6-11.

66 Zalloom, Abdul-Qadeem, ‘How the Khilāfah was Destroyed’, op.cit., p.201, words in square brackets from Arabic original p. 202