Islamic Law: "Abnormal Abuse of Rules Can Neither Legalise The Abusive Practice Nor Render the Authentic Rules Null & Void"

This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

(1)As has aptly been said: "When stable communities whether Tribes, or City-States, or States of a modern type are permanently contiguous, customs hardening in time into law never fail to regulate their intercourse. Ubi societas, ibi jus; wherever developed communities are brought in contact with each other, judicial relations must sooner or later be formed not mainly by agreement, tacit or express, but by the very necessity of the case, and partly from the same cruses as those which working internally create states." 

(8) Law (Fiqh) is variously defined by classical Muslim jurisconsults. "The knowledge of what is for and upon one" is a definition attributed to Abu Hanifah) which in other words may be rendered as "the science of the rights and obligations of man". A late authority, Muhibbullah al-Bihariy, introduces this all-embracing subject in the following words  of his book (compiled 1109 H.) : " The science of ascertaining religious commands (regarding practical affairs of life) by means of their detailed guides." [By guides he means authority or source of information.]


(9) A glance at the contents of works on Fiqh would reveal that they embrace practically all the affairs of human' life, material as well as spiritual. In view of the standard definitions given above and is the face of the contents of works do Fiqh, there remains not the slightest doubt that international law, i.e. the rules of State-conduct in times of war, peace and neutrality, form part of the ordinary law of the land, the Fiqh. These rules of conduct are generally dealt with in books on Fiqh under the heading Siyar i.e. conduct,

(10) Here a brief expose of the origin of law according to Muslim jurists may profitably be added. They say that man must always do what is good, and abstain from what is evil, and take scrupulous care of the intermediary grades of plausible, permissible and disliked. It is, however, not easy to distinguish between good and evil, especially when the matter concerns the subtleties of a complex civilised life beyond the pale of ordinary commonplace things. 


Practical needs would have required the possession of the power to legislate (or lay down definitely grades of good and evil [in] each and every matter) in the hands of Man, either individual, as jurisconsult, or collectively organised, i.e. a State. Yet mere reason, regarded as the touchstone of good and evil, is not without grave difficulties. For it is possible, and also a matter of fact -- so argue Muslim jurists -- that different persons opine differently regarding the same things. 

The belief in Messengers of God is useful even from the point of view of jurisprudence, in so far as the awe and respect due to their persons lead to the acceptance of certain fundamentals without further dispute, wherefrom other and further details may be elaborated. For this reason, the Muslim savants are very thankful to the generosity of God that He gave men along with reason certain chosen human Guldes to help them in the conduct of life. These selected and chosen ones pointed out what God commanded, God the real Sovereign and Lawgiver, regarding good and evil. 


Muhammad has been acknowledged by the Muslims as the Messenger of God; and whatever he gave them in his lifetime, commands as well as injunctions, in the name of his Sender, God, was accepted by the Muslims as indisputably final and most reasonable. 


These Divine Commands, known as the Qur'an and the Hadith - as we shall see later in detail - served practically all the needs of the Muslim community of that time. But human needs multiplied later in such a manner that express provision seemed to be available for some of  the new matters in either the word or deed of the Messenger, who himself had passed away, disconnecting the link whereby Man could receive Commands from his Lord. The consequent result would have been fatal and the fabric of Fiqh would soon have collapsed under the strain, had not there been express provision in the law itself for further elaboration. Credit must also not fail to be given to the Muslim jurists, after the death of the Prophet, who not only discerned this elasticity of the Divine Law, but also utilized it to its fullest extent. In time there emerged a complete system of law which served all the purposes of the Imperial Muslims, even at the height of their widest expansion from the Atlantic to the Pacific Oceans.


(11) Thus law originated from the direct Commands of God; but the power retained by man to interpret and expand Divine Commands, by means of analogical deductions, and other processes, provided all that was required by the Muslims. In this way a dual need was served: that of sanctity to inspire awe in the minds of (hose who were intended to observe it, and that of elasticity or capability of development to meet the needs of times and circumstances.


(12) We have defined international law, first, as a part of the law of the land. The province of the law of the land is therefore, obviously, wider than that of international law; and we have no concern here with the portion of the law of the land which regulates internal affairs of the State or its subjects.


(13) We have also acknowledged customs as contributing to international law. No system of law can positively provide guidance regarding every detail of every matter. Completion of a list of obligatory and prohibited things, along with details of a certain number of permitted matters -- that is all any system of law can achieve Naturally the prevalent customs  general practice, and even innovations hardening in time into prevalent usage eye) regulate the relations in such cases. 


(17) It may be added that, for purposes of illustration, precedents from Orthodox Practice have freely been referred to. These alone are binding. Abnormal and temporary abuse or overlooking of certain rules by a Muslim State can neither legalise the abusive practice nor render the authentic rules null and void. 


http://muslim-canada.org/conduct_1.html This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

Seek Knowledge! An Obligatory Duty for Muslims!

1. Published: Friday, 26 January, 2007, 10:52 AM Doha Time

Prophet Muhammad sallallaahu 'alaihi wa sallam said: “Seeking knowledge is obligatory upon every Muslim.” (Related by Ibn ‘Adiyy, Al-Bayhaqi and Al-Tabarani). 

Though this Hadith is known and memorised by most Muslims, the essence, the amount, and the kind of knowledge referred to in this Hadith remains misunderstood by many. What are the minimum teachings that every Muslim – male or female – is required to know about his Deen?

A. Types of knowledge in Islam

Muslim scholars classify knowledge into two categories:

1: Obligatory knowledge (fardh ‘ayn): This refers to knowledge of the fundamentals of Islamic beliefs which every Muslim must know. Seeking this knowledge is an obligatory duty upon every Muslim. All obligatory knowledge deal exclusively with al-’Ilm al-Shar’i, that is, knowledge pertaining to Islamic faith, acts of worship, and the necessary transactions in the daily dealings of a Muslim.

2: Optional knowledge (fardh kifayah): This is not a duty required of every individual, but rather it falls upon the community as a whole. Hence, if a group of individuals in the community undertake to acquire this kind of knowledge, all other individuals will be exempted from this duty, and the whole community will be free from responsibility or negligence to acquire this kind of knowledge. Examples of such knowledge include studying Islamic law and other basic sciences, industries and professions which are vital for the welfare of the society.

Unlike obligatory knowledge, optional knowledge covers part of Islamic knowledge and all worldly knowledge. The former is called al-’Ilm al-Shar’i al-Kifa’i (optional Islamic knowledge), while the latter is called al-’Ilm al-dunyawi (worldly knowledge).

a) Religious sciences: These cover all branches of Islamic shari’ah, such as: tafseer (Qur’anic exegeses), fiqh, hadith sciences (known as mustalah al-hadith or ‘Ilm usul al- hadith), seerah (the Prophet’s biography), Islamic political science, (As-siyasah al- shar’iyah), Islamic history, etc.

Each of these sciences may require knowledge of other sciences to cover fully and comprehensively the substance of the matter studied. For example: tafseer needs Arabic grammar, Arabic literature, and other linguistic skills; Hadith sciences need the science of criticism (which looks at the narrators’ credibility, trustworthiness, power of memorisation, etc), called ‘Ilm al-jarh wat-ta’deel.

b) The natural and applied sciences: These are all the basic sciences, industries and professions which are of vital necessity for the welfare of the community. Examples of such fields include: engineering; agriculture, fisheries, food sciences, etc. Leaders of every Muslim community should always do their best to procure the necessary number of scholars, professionals and qualified men and women in all fields of optional knowledge needed by the community. For example, Muslims in a non-Muslim country must train sufficient number of shari’ah scholars to answer questions raised by members of the community. They must also prepare enough educators – administrators, teachers and counsellors to fill the growing needs of Islamic schools in this country. Both male and female Muslim doctors are needed in every city to care for male and female Muslim patients, respectively.

From the above discussion, we can fully understand the responsibility that lies upon the shoulders of Muslims in this continent.

Minimum requirements for Islamic sciences

First, the understanding fundamentals of Iman: This is also called ‘Ilm Usul ud-Deen (Fundamentals of Deen), or ‘Ilm al-Tawheed (the Oneness of Allah), or simply ‘Aqeedah (Islamic faith). Every Muslim must have a general knowledge of all matters pertaining to his faith. He should have a clear understanding of the Lord he worships, the Prophet he follows and the Deen to which he committed himself. Needless to say, one should exert the best of one’s effort to acquire these fundamentals.

Second, understanding Islamic rules and conduct (fiqh al-ahkam): This is also called fiqh al-’Ibadat (understanding of acts of worship). This field covers all aspects of the Islamic acts of worship that are necessary for the correct practice of one’s Salat, Zakat, Sawm, and Haj.
It als covers all aspects of family issues, such as marriage, divorce, children’s education, as well as rules and regulations for one’s business transactions such as, buying, selling, borrowing lending, etc. A Muslim is obligated to learn from fiqh al-ahkam only matters that are related to Ibadah (worship) he need to perform; and rules of a particular transaction he wants to undertake. For example, if a Muslim has not reached the age for prayer or fasting, he does not have to learn about them though he may be encouraged to do so. Also, if one does not have the necessary means to perform Haj, one does not need to learn its rituals until one becomes able to undertake the Haj journey.

By learning those two branches, a Muslim will know His Lord by all His beautiful names and Most High attributes. He will know the status, function and rights of the Prophets. He will follow a similar course when dealing with other required beliefs, such as the belief in the Angels, the Books, the Predetermined Decree, the Last Day, the punishment in the grave, etc. On the other hand, before performing any act of worship, a Muslim should know the requirements, the conditions and the desirable actions pertaining to that act. Hence, He will never practice any act of worship or undertake any transaction not sanctioned by the Qur’an or Sunnah.

Just by contemplating the Islamic knowledge of Muslims today, the reader can realise how much those two disciplines, which are required of every Muslim, have been neglected, if not totally ignored.

Unfortunately, there are many Muslim professors, doctors, and engineers, who hold the most advanced academic or professional positions in their respective institutions, yet do not possess the minimum knowledge of the Islamic sciences. Ironically, while it takes only a few weeks or even a few days to acquire the obligatory Islamic knowledge, it may take at least two years to obtain a basic degree in any worldly field.

Indeed, it is through knowledge and sincerity that one can enter paradise. This is how we can understand the Hadith of our beloved Prophet sallallaahu 'alaihi wa sallam, “Whoever adopts the path of seeking knowledge, Allah eases for him the way to Paradise.” (Related by Ahmad, Al-Tirmidhi, Abu Dawud, Ibn Majah, and Al-Darami).

The following Hadith is a strong reminder for anyone of us whom Allah has blessed with some Islamic knowledge: “Whoever is asked about a knowledge that he knows about and then hides it and keeps it away, he
will be bridled on the Day of Judgment with a bridle of fire.” (Related by Ahmad, Abu Dawud and Al-Trimidhi).

2. Friday speech delivered by Imam Mohamed Baianonie at the Islamic Center or Raleigh, NC on January 21, 2000

Knowledge is the road to Iman belief, and leads the person to fear Allah (S.W.T.). The fear, that is based on knowledge, regulates the person's deeds. Knowledge is the one that leads to fear of Allah, which in turn entices action. Allah (S.W.T.) said in surat Fatir, (Verse 28), what can be translated as, "It is only those who have knowledge among His slaves that fear Allah." Because of that, Allah (S.W.T.) brought the people of knowledge to different higher levels according to their knowledge, For that reason Allah (S.W.T.) raised up the degree of those who have knowledge, He (S.W.T.) said in surat Al-Mujadilah, (Verse 11), what can be translated as, "Allah will exalt in degree those of you who believe, and those who have been granted knowledge."

Knowledge of deen gathers and contains all righteous deeds and it is a sign of acceptance and pleasure of Allah (S.W.T.) with His servant. Imams Bukhari and Muslim reported that the prophet Muhammad (S.A.W.) said: "If Allah wants to do good to a person, He makes him understand and learn the deen."

Knowledge comes before Ibadah and regulates it, so no Ibadah is accepted unless it is based upon correct knowledge. For this reason, the prophet (S.A.W.) considered the person of knowledge to have much higher status than the worshipper. 

The prophet Muhammad (S.A.W.) elevated the one who has knowledge over the worshiper, He (S.A.W.) said in a good hadith reported by Imam At-Tirmithi,"An ‘Aalim (learned person in the deen) is as much superior to an ‘Aabid (Worshiper) as I am superior to the lowest among you." In another hadith reported by Imam Abu-Dawoud and At-Tirmithi, that the prophet Muhammad (S.A.W.) said: 

"An ‘Aalim (learned person in the deen) is as much superior to an ‘Aabid (Worshiper) as the full moon is superior to all stars."

The prophet (S.A.W.) considered seeking knowledge obligatory upon every Muslim, male or female. His teaching included all with no exception. Even the women took their share in seeking knowledge. Imam Bukhari reported that some woman requested the prophet (S.A.W.) to fix a day for them as the men were taking all his time. On that he promised them one day for lessons, so he preached and commanded them…"

Shyness did not prevent the women from seeking knowledge. Imam Bukhari reported that A'isha (R.A.) said: "The best woman are the woman of ansar because their shyness did not stop them from learning the deen."

The companions of the prophet were very eager to seek knowledge. They use to ask the prophet about every matter in their lives, and the prophet (S.A.W.) used to answer them with what Allah (S.W.T.) had taught him with humbleness and kindness.

The companions of the prophet (S.A.W.) used to alternate and rotate going to the Masjid of the prophet (S.A.W.) so that they do not put off their worldly work and nothing of seeking knowledge slips away. 

Umar (R.A.) is one example. Imam Bukhari reported that Umar Bin Alkhattab (R.A.) said: "My Ansari neighbor and I used to live far away from the masjid of the prophet (S.A.W.), and we used to visit the prophet (S.A.W.) by turns. He used to go one day and I go another day. When I went I used to bring him the news of that day regarding the revelation and other thing, and when he went, he used to do the same for me…"

Even the Bedouins used to travel a long distance to Madinah to seek knowledge by asking the prophet (S.A.W.). Imam Bukhari reported that Dimam bin Tha'labah came riding on a camel. He made his camel kneel down in the mosque, tied its foreleg and then said: "Who amongst you is Muhammad? At that time the prophet was sitting among his companions leaning on his arm. The companions replied, "This white man leaning on his arm. The man then addressed him. "O son of Abdl Muttaleb, I want to ask you something and will be hard in questioning. So do not get angry. The prophet said: "Ask whatever you want…" (Then the Bedouin, asked him many questions, and the prophet (S.A.W.) answered them all.)

The prophet (S.A.W.) ordered his companions who learned to teach others even if it is little. Imam Bukhari reported that the prophet Muhammad (S.A.W.) said: "Convey on my behalf even if it is only a verse (of the Qur'an)…"

Also Imam At-Termithi reported a good hadith that the prophet Muhammad (S.A.W.) said: "May Allah prosper the affairs of a person who hears something from us and communicates it to others exactly as he has heard it. Many a man to whom something is convened retains it in his memory and understands it better than the one who has heard it."

The prophet (S.A.W.) warned from keeping knowledge secret. 

Imams At-Tirmithi and Abo Dawud reported a good hadith that the prophet Muhammad (S.A.W.) said: "He who is asked about knowledge and conceals it, will be bridled with a bridle of fire on the Day of Resurrection."

The companions of the prophet (S.A.W.) were keen on seeking knowledge and spreading it during the life of the prophet (S.A.W.) and after. They traveled in the land to teach people and became within less than a quarter of a century the strongest Ummah on the face of the earth with what they had carried from the knowledge of deen and the knowledge the worldly life. With that, they became prosperous and the whole humanity became prosperous. This prosperity remained for so many centuries that history could not ignore. Many scientific remains in all aspects of science are still around.

Regression of this Muslim Ummah then started sometime in its history. This regression closely accompanied the attitude of laziness and carelessness and turning away from knowledge, so ignorance started to spread in place of knowledge until this Ummah became the most backward Ummah.

To revive this Ummah and empower it again with knowledge and leadership that it once had, we must spread the correct knowledge of the deenuAllah (S.W.T.) because from this knowledge stems all other knowledge. And it is a must that we take practical steps to achieve this.

We ask Allah (S.W.T.) to help us to seek knowledge and to bless us with sincerity in our sayings and deeds. O Allah! Increase our knowledge. "Ameen

Read Full: http://www.scribd.com/doc/6890606/Seeking-knowledge-is-obligatory

 http://islam1.org/khutub/Seek_Knowledge.htm

Islamic Government Is Not A Theocracy

Bilal Cleland

The system of government under Islam is based upon the Quran and the Sunna or Traditions of the Prophet Muhammad. There has always been a lot of discussion amongst Muslim scholars about the best way to implement these rules and principles.

The sovereignty of God, the message conveyed by all the prophets, is the foundation of the system. Legislation contained in the Quran becomes the basic law of the state. The government must make decisions on the basis of what God has revealed. In cases not covered by revelation, decisions based on Islamic principles are left to the Mujtahids, Islamic experts on legal interpretation. The Muslims can make laws or regulations dealing with such matters, but these do not have the same permanence as Quranic injunctions.

God said in the Quran that He was going to create a 'caliph' or representative upon the earth (2:30). Human beings are these caliphs. This means that all humanity is responsible for the establishment of the laws and principles revealed by God, not some superior class of priests or holy men. Thus Islamic government is not a theocracy. All human beings are equal, the only distinction made by God is in their degree of righteousness. Islam allows no distinction amongst people on the basis of tribe or race, ethnic group or amount of wealth. The Muslims are different from other people only in that they are conscious of the importance of submission to God's decrees.

The establishment of justice for all citizens of the state, Muslim and non-Muslim alike, is one of the major purposes of the Islamic system of government. It is the duty of every individual Muslim and of the Islamic government to strive for justice and to prevent and oppose evil. If injustice spreads in a community with none to denounce it, then that whole community and its government is considered to be transgressing the law of God. Where injustice is rife there cannot be peace. The Quran warns that nations in the past have been destroyed for such neglect.

Consultation has a high status in Islam. This is indicated by the name of surah or chapter forty-two, "Consultation". It is in this surah that those people who conduct their affairs by mutual consultation are linked to those who establish regular prayer and those who spend on helping others (42:38). The extent of the consultation to be carried out is not defined in detail. Some scholars argue that only those knowledgeable about Islam need be consulted. Others argue that this is an endorsement of mass consultation through general elections. The principle of consultation is however, quite clearly essential and how it is implemented will be related to the temper of the time or the location. Although non-Muslims were not involved in consultation in the early period of the birth of Islam, there is nothing to indicate they cannot be included in consultation on national affairs or affairs not dealing with the beliefs of the Muslims. However as the head of state must implement the Quran and Sunna, it is necessary that this position should be held by a Muslim.

Muslims believe that only when this system is established can there be justice and harmony in society.

Read full article: http://www.islamfortoday.com/cleland04.htm

Biography: Bilal Cleland

Bilal Cleland is secretary of the Australian Federation of Islamic Councils (AFIC) and President of the Independent Business and Industry Association of Australia which he represents on the Board of Governors of the International Business Forum. He is also President of the Muslim Welfare Board of Victoria.