Fiqh of Testimonies

(Under construction)

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

Fiqh of Crimes and Penalties – Part 1

(Under construction)

Fiqh Al-Jinayat

“Jinayah” primarily means the act of gathering, plucking or taking fruit from a tree (as an evil thing or forbidden action)

The Islamic Criminal Law (based on the following five fundamental points):
– protection of Religion
– protection of life
– protection of the sanctity of family
– protection of property
– protection of sense

It generally signifies a punishable crime, offence or injurious action.

God’s rights (Huqūq Allāh): The example of the punishment for sariqa
– Ḥanafī view
– Mālikī, Shāfiʿī and Ḥanbalī view
Man’s rights (ḥuqūq ʿibād): The example of the punishment for qadhf
– Ḥanafī view
– Mālikī view
– Shāfiʿī and Ḥanbalī view
Mixed rights (ḥuqūq mukhtalaṭa): The example of the punishment for Hirāba
– Ḥanafī view
– Mālikī view
– Shāfiʿī and Ḥanbalī view
Dismissing God’s rights
– Conflicts of rights
– Dismissing God’s rights on the basis of doubt (shubha)
– Hadd lapsing (suqūṭ al-Hadd bi l-taqādum)
– Retraction of confession (al-rujūʿ ʿan al-iqrār)
– Repentance (tawba)

Classification of Crimes
The jurists have discussed three classifications of crimes on different aspects, namely,
– Classification according to punishment
.Hudud (crimes of fixed punishments)
.Qisas and diyat (crimes of retaliation and blood money)
.Ta’zirat (crimes of discretionary punishment)
– Classification according to intention, and
– Classification according to violation of rights

Apostasy (ridda)
Illegal sexual intercourse (zinā)
Unfounded false accusation of committing illegal sex (qadhf)
Theft (sariqa)
Armed robbery (ḥirāba)
Drinking alcohol (shurb al-khamr)

Hadd punishments as general prevention (zajr) and individual prevention (radʿ)
– Debates about Hadd punishments as general prevention (zajr) and individual prevention (zajr)
General prevention
Stoning (rajm)
Crucifixion (ṣalb)
When Hadd punishments function both as general and individual prevention
– Flogging (jald)
– Amputation (qaṭʿ)
– Banishment (nafy ʿan al-arḍ, taghrīb)
– When Hadd punishment is not a deterrent
– Repetition of ḥadd offences
– Overlap of ḥadd offences (tadākhul or ijtimāʿ al-ḥadd)
The uncertainty of Hadd justification as a deterrent
Deterrence and the immutability of ḥadd in fiqh

Hadd punishments as expiatory acts (kaffarāt)
Expiation (takfīr) in the Islamic tradition
– Origins and etymology
– Kaffarāt in the Qurᵓān
– Kaffarāt in the Prophetic tradition (ḥadīth)
Kaffarāt in fiqh
– Hadd punishments as kaffārāt in fiqh textbooks
– How did the Hadd punishments come to be regarded as kaffārāt?
Legal debates about Hadd and repentance (tawba)
– Hanafī view
– Shāfiʿī view
– Hanbalī and Mālikī view

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

Fiqh of Medicine

(Under construction)

Responsibility and liability in Islaam
Rescue in Islamic Law
Strict liability
Vicarious liability
– Diya
– ‘Aqila
– Qasama
– Ahl ad-diwan
Limit or cap of liability

Matters arising within medical practice
– should people preserve their health?
– should people seek treatment?
– is there a necessity for the medical profession?
– should the medical practitioner be well prepared for his job and execute it properly?
– are there any limits to the methods employed in treatment?

Imaam al-Ghazaaliy on medical treatment
Are there any legal remedies for an injury of treatment received?
Litigation in the medical field and medical negligence
– Mistake, error, misadventure, and negligence

Rights and Responsibilities of Patients
Rights and Responsibilities of those who Treat Patients
– Basis of liability
– Standard of Care
– Differences in opinions and novel procedures
– Numbers involved for defence to a negligence allegation
– Levels of skill
– Negligence and its redress
– The competent unauthorized medical practitioner
– The incompetent practitioner
– Disciplinary measures and reimbursement

The competent practitioner
– Liability (according to the schools)
– Unforeseeable Reactions (according to the schools)
A authorised practitioner who erred
– Error (according to the schools)
– Non-Muslims
– Compensation
The negligent practitioner
The criminally negligent practitioner
– fixed punishment
– discretionary punishment
– Qisaas
– Criminal Negligence

Types of euthanasia,
Involuntary euthanasia,
Non-noluntary euthanasia,
Brain-stem dead,
Patients in the permanent vegetative state (PVS),
Coma,
Should persons in the permanent vegetative state and other mentally incompetents be fed?
Infanticide
Killing of minors and those under care
Killing, or terminating the life, of the unconscious
Voluntary euthanasia

Prevention and Termination of Pregnancy
Children within Marriage,
– to have fewer children in the family
– having smaller families by preventing pregnancy
Can pregnancies be terminated lawfully, in accordance with Islamic fiqh?
– views of Muslim fuqaha regarding permissibility of induced abortion
Special issues on terminations,
– pregnancy and the ‘mother’ in health, sickness and in rape cases
– the embryo (foetus) and abortion
– the husband’s options, consent and permission
– welfare of other siblings
– if a time limit was set before which abortion could be performed
Welfare of the mother,
Severe deformation of the foetus,
– is the husband’s consent or permission necessary?
Consequences of termination of pregnancy in Islamic fiqh
– termination of pregnancy with the consent of the woman in question
– termination of pregnancy at the hands of a tortfeasor
Legislation and induced abortion

Reproduction,
– Infertility,
How does Islamic fiqh impinge on reproduction?
What happens to surplus embryos in modern infertility techniques?
Can a widow use stored fertilised ova of her late husband?
Surrogate wives and polygamy,
Cloning,
– cloning and the laws
– implications for human cloning
Islamic fiqh and the new challenges

Permissibility of transplants in Islamic fiqh
Transplants from animals, dead and living
Human transplants
Transplantation from a living donor
Cadaver donations, and parts from dead persons
Is it allowed to transplant one testicle from a donor?
Transplantation from the brain dead
Anencephalic infants as organ donors
Foetal tissue transplants and genetically engineered organ donation

International Code of Medical Ethics
Duties of Doctors in General
Duties of Doctors to the Sick
Duties of Doctors to each other
Restatement of the Hippocratic Oath 1947
Declaration of Geneva
Islamic Code of Medical Ethics
Doctor’s Oath
Declaration of Helsinki
Declaration of Oslo 1970
Declaration of Tokyo

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

Fiqh of Oaths and Vows

(Under construction)

“Allaah will not impose blame upon you for what is meaningless in your oaths, but He will impose blame upon you for [breaking] what you intended of oaths.” (5:89)

– M. Tahir Farrath –

The form of an Oath (Yamiin)
– Oaths (Aymaan) by Allaah
– Keeping quiet and not making an Oath
– Oaths involving divorce or emancipation

Kinds of Oaths
– Oaths involving Kaffaarah
– Oaths not free of Kaffaarah
– Oaths over doubt and untruths requiring Tawbah
– Oath of not entering a house, etc.
– Oath of not eating certain food
– Oath of time
– Oaths in lawsuits
– engulfing Oath
– enacted Oath
– Mistaken Oath
– Oath of fealty to the Caliph
– Oaths by coercion

An Oath to walk to Madiinah or Jerusalem
An Oath to walk to any other Masjid
An Oath to walk to Makkah is binding (with a condition when riding becomes necessary or not completed or Hajj had not been performed)

Frequent swearing on Oath
Swearing by the Qur-aan
Swearing by other than Allaah
Compurgation by Oath (Qasaamah) of witnesses
Oath of divorce

Types of Kaffaarah
– Feeding with preconditions
– Clothing
– Freeing a slave with preconditions
– Fasting

Single Kaffaarah
Double Kaffaarahs

Kaffaarah is not required in the following:
– Adding In Shaa-Allaah is not an Oath
– Oaths in which Allaah is not mentioned

When Kaffaarah becomes due
When there is no Kaffaarah
– making lawful unlawful
– but non-Muslims need to seek Allaah’s forgiveness
– vowing and not sacrificing one’s son
– vowing and not giving away all of one’s possessions

Conditions of making Vows

A Vow (NaTHr) as an act of obedience to Allaah need to be fulfilled
Vowing to do a specific act, fast, prayers, charity, hajj or ‘Umrah
Vowing to abstain from sexual contact with one’s wife
Vowing to man a post along the frontiers of Islaam

Vows not accompanied by an Oath
Vows with another’s property
An unspecified vow

No reparation for a vow to do wrong

An Oath or Vow differs from a promise, which is a statement that one will do or refrain from something in the future. There is no expiation due for breaking it, although it is sinful to make a promise with the intention of breaking it.

NB: Bay’ah (pledge) is the oath of allegiance given to a Muslim leader. In this regard, the Nabiy (s.a.w.s.) said: “If allegiance is given to two khaleefahs, then kill the second of them.” (Muslim, 1853). Muslims who are living in one country or kingdom should have one allegiance to one leader.

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

International law and Theocracy : A Proposal

The legal validity of theocracy in international law

Bismillah Ar Rahman Ar Raheem

1.0 Introduction & background

“Theocracy is a form of government in which official policy is governed by immediate divine guidance or by officials who are regarded as divinely guided, or is simply pursuant to the doctrine of a particular religion or religious group” (Merriam-Webster, 2007). Democracy has become the dominant form of government in the world. Even though there are many other forms of governments recognized by political science, people’s ignorance and/or inapplicability of those in the state level, have made them only academic studies. One of the most persuasive and once dominant forms of government is theocracy. It finds its validity in religious texts. How successful can it be in people’s hearts? How can it reconcile with secular freedom? And the most important question is how much legal validity does it have in international community? This last question above all needs to be answered in light of the research.

1.1 Need for the research

History has seen many wars especially in the middle ages, wars which were fuelled by the cause of religion and just cause. Many people have died championing the cause of just wars and religions, but many have also died championing the cause of extremism. Recently in the world the fight for a religious government has emerged in the wake of terrorist attack of 2011. Even though the conflict between secular and religious is an old age rivalry, it has emerged in a new form where the former speaks of preemptive strike and the latter speaks of terrorist martyrdom. Can the differences between the two be resolved through a mutual agreement by international law? I believe my research will be able to in the least propose a solution and a step in the future. By this each faction can understand each other, and international law can play its major role and the primary role of maintaining international peace and promoting friendly relationship among people. It will help people understand that religion is not about impairment of freedom or the government of extremists, but it is more than that. It will help also to diminish an extremist thought in religious governance, and may convince some extremists also that both religious government and modern world can co-exist, peacefully. If it can be shown that international community and in large international law is not the enemy of theocracy and religious government then may be perhaps the tension will slightly lower, and people can see for a new age of religious tolerant governance, appreciating the role of religion and international law. It is based on a normative form of theocracy which I believe International Law allows.

1.2 Purpose of the research

This research will deal with the legal issues, and discussing the technicalities of international law vis-à-vis theocratic legal systems. It will establish a legal link between theocracy and international law. Theocracy and the harmony with international law, and how to refine the extreme form of theocracy and make it fit in the context of International Law is the main objective of my study.

1.3 Thesis statement

Does international law allow for the existence of a theocratic regime which allegedly is feared to violate human right? I believe that international law allows in its system the existence of a normative theocracy.

“Normative” meaning refined through international law and having legal injunctions worthy of being a legal system as well as political system yet maintaining the theocratic nature.

1.0 Literature Review: Major theocracies & International Law

I have discussed many forms of theocracies in which writers have endeavored upon either to establish a certain positive claim or a negative one. Due to theocratic legal systems being different its political systems also tend to be different, so I have discussed them in paragraphs.

The following passages will examine the major studies done in the relevant theocracy, and will also touch on the nature of international law dealing with governmental purpose.

2.1 Jewish theocracy

The term theocracy did not originate in any religious texts but it represents a form of government which is that of God (Kim 1972). Within this scope lies the definition of all forms of theocracies. To start with Jewish theocracy would be a facilitator in understanding the divergent nature of theocracy. “Jewish theocracy is inevitably bound to be destructive of a real state in a real world” (weiler, 1997) – a theocracy which at the very onset is against the objective of international law, because international law is all about peaceful co-existence (UN Charter preamble & article 1). Does it mean that Jewish theocracy is not fit to rule or exist in the modern arena of nation states? Jews are a minority, and it would be difficult to exist on such aggressive theocracy for long, if it were to be established, purely. Then what other forms can there be in Jewish theocracy which may be in harmony with the concept of co-existence? Jewish theocracy says weiler is three folded: Anti-political, Rabbinical & anti-democratic anti secular (weiler, 1997). It may be that rabbinical norm which is so much aggressive who may treat the gentiles (non-Jews) in a very discriminatory way. As to the anti-political form would mean simply submitting to a purely religious form of life where the daily activities of life is governed by the government of rabbis and religious rituals, not to say the laws reaching to affect the level of state or existing government. It could also be argued that the other two forms simply highlight Gentile hatred and Jewish separatism (Spinoza 1670). I believe that in order for Jewish theocracy to exist in a form compatible with international peace and international law, tolerance of the gentiles should be legislated and incorporated in the norm.

2.2 Christian theocracy

God is the only good King (Palmquist 1993). This is the summation of Christian theocracy to the author. On the basis of this the whole concept of Christian theocracy is built by the author. Absolute freedom is in God, he proposes, and that only government which can achieve this is theocracy. Even though he has vehemently opposed democracy, nonetheless democracy is also allowed by international law. It should be no shock that two allowed forms of government be in conflict in international law just as democracy and communism was in the cold war. The kingdom of the Supreme King is acknowledged through the rule of pious men. In the Old Testament it was the prophets and to him in this present era it would be the church. Unlike secular government and just like other theocracies he foresees a government not of land or state only but of the soul also. He shuns the isolationist policy that politics is evil and bad on the basis that men who make it bad but politics is a tool to achieve certain aims. He however only foresees bible as the only way of establishing peace in society but not international law. Pacifism is not an option in bible according to him, but what he promotes is just war which would mean also wars of aggression and he proposes a war of retribution for the wrongdoers, retribution of God implemented through the theocrats. This reminds us of the crusades, wars of the church for a just cause in their theological reasoning, but not a just war so much in the modern sense of international law.

2.3 Islamic theocracy

The term Islamic state was coined by Maududi. He affirms the role of Islam in politics in the modern era, and proposes a theory for Islamic government. He establishes that the state of Islam must be based on unity of Allah Supreme, Prophethood and Caliphate. He proposes Islamic democracy a challenge to western secular democracy (Maududi 1976). He establishes a theocracy of Islam where only Muslims are allowed to rule due to the security issues of the state. “Islamic ‘jihad’ does not recognize their right to administer state affairs according to a system which, in the view of Islam, is evil. Furthermore, Islamic ‘jihad’ also refuses to admit their right to continue with such practices under an Islamic government which fatally affect the public interest from the viewpoint of Islam” (Maududi, 1939). He proposes an aggressive war stating “Islam wishes to destroy all states and governments anywhere on the face of the earth which are opposed to the ideology and programme of Islam, regardless of the country or the nation which rules it” (Maududi 1939). However it should be asked that prior to the adoption of UN charter in1945 how much is an aggressive war prohibited? How this sentence from Maududi is reconciled now with UN charter? Maududi proposed the theory of Islamic theocracy and it can be said Khomeini implemented it. Even though not fully clerical theocracy but nonetheless a theocracy was proposed by him stating “”We do not say that government must be in the hands of” an Islamic jurist, “rather we say that government must be run in accordance with God’s law” but he encouraged clerical rule for the safety of religious integrity and jurisprudence “Only rule by a leading Islamic jurist would prevent “innovation” in Sharia or Islamic law and insure it was properly followed” (Khomeini 1981).The concept of human rights is implicit in the Islamic doctrine of obeying Allah Supreme (Khomeini 1981). Thus Islamic theocracy of Iran has adopted the Cairo declaration of human rights. How much international law condones it is analyzed later on. (For discussion on this see http://islamichumanrights.weebly.com)

Was there really theocracy in Afghanistan or rule by clerics who implemented something else? Not everyone will believe what I asked, but the contrary to criticize theocracy. Afghanistan says Travis was a hotbed for civil war after the Islamic revolution against the Soviets (Travis 2003). He cited the darker side of a government which fought Soviets, i.e Taliban fighters. Taliban theocracy was vicious and brutal, and was responsible for atrocities and massacre. Taliban was supported by USA, Saudi Arabia and Pakistan and their success largely due to these states, even though USA later renounced it and left it to isolation until 2001. Taliban theocracy was thus to Travis was a failure and more over a form of criminal gang of rulers to implement Islamic law.

2.4 Rawls on Theocracy

Theocracy cannot be a positive form of government because it bars people’s rights and does not “guarantee the right of people to choose their own conceptions of the good life” (Roberts, 1998). To Rawls there are no objective moral values which Theocracy proposes. He defines the choices of reasonable people and the form of political doctrine they ought to choose. However to me moral values and political freedom in a state is the matter of the people’s right to consent or not consent. If people consent to the theocracy and to be governed by a set of doctrines which make their lives easier and spiritually positive i.e. spirituality of love and tolerance, along with justice to be understanding and flexible in its application., then theocracy can be a good form of governance, a form which can exist in international relations of states.

2.5 The return of theocracy

Religious parties have made a comeback to international sphere and “a new legal order has emerged: constitutional theocracy” (Hirschl 2008). He has discussed the need to study theocracy in the constitutional context, and after studying several constitutions which endorses a religious element he has come to believe that world politics can no longer ignore it. His research has endorsed the importance of acknowledging religious as an important player in forming constitution and state laws in the world, which leads to the need for my research as to how should a theocracy ought to exist on the basis of international legal system?

2.6 The nature of International Law

The main purpose of international law is to establish and maintain world peace and respect for human rights (UN charter 1945 & ICCPR 1966). International legal system tries it’s best to uphold the norms of Jus cogens, and judges on all forms of governments and/or legal systems which violates the Jus cogens norm as well as treaty laws & customary international laws (ICJ, Nicaragua case). Therefore it recognizes any or all governments De Jure or Ipso Facto (Wallace, 2010) provided they also recognize their obligations under international law (ICJ Statute article 36).

2.0 Methodology

The research is library based, mainly. It also takes in to account media, religious edicts published in leaflets or proposed in parliament. I take in to consideration primary texts on theocracies including its interpretations. As this is a comparative analytical research, the interpretation and juristic opinions regarding the relevant fields of international law is compared with the theocratic laws and political theories, at times scrutinizing each other, and proposing a preferred view in my opinion. Also incompatibilities of the practical with the “ought to be” form are analyzed, and the “whys” and “hows” of such conflict are explained with possible resolutions if any. Also the flexible nature of international law is analyzed to that of inflexible practices of international legal subjects, if any.

One of the practical approaches will be to take the speeches and quotes of theocratic figures and understand them in context of international law. It is because misunderstanding of such lead to misunderstanding of theocracy in particular and religions in general. What they have to offer is best understood when they are heard and understood. A study of how dominant theocracies of the world governed international relations in the absence of contemporary international law, is also taken.

Interviews with theocrats are done. Their ideas questioned to them, and their thought on co-existence of international law and theocratic government.

Exemplary questions to be asked for survey:

a) How theocracy can make a difference towards world stability?

b) How do you tackle western human rights in conflict with theocratic human rights?

c) Do you justify wars of aggression to promote just cause? If so, why?

d) How credible is international law to you as you represent the Divine law?

e) What if your version of theocracy is incompatible with international law and world community are you ready to wage a holy war?

Questions may be elaborated while in interview.

3.0 Limitations

The limitations rise due to the complete absence of prolonged theocratic rule in the contemporary world. Practical studies are thus limited by this, hence are heavily theory based and analytical. Also access to leading theocrats may be a problem due to their conservatism and suspicion to media and publicity.

Research for theocracy is rare, and most of the researches are against it or at least against its authority. It is thus difficult to portray what theocratic form in international law is allowed provided the essence of theocracy is not altered. My research will contribute towards this, inshallah.

4.0 Timescale

The research project is planned to be finished within five to six months, from the date of submission of the proposal.

References Kim, David. Theocracy in the Old Testament. Ashland Theological Journal ATJ 05:0 1972. http://www.galaxie.com/article/34 Weiler, Gershon (1997). Jewish Theocracy. Leiden: Brill Academic Publishing

Silvertone & Israel (Ed.) Spinoza: Theological-Political Treatise. Cambridge, England: Cambridge 2007.   

Palmquist Stepehen (1993). Biblical Theocracy. HongKong: Philopsychy Press.   

Maududi, Abu Ala. Political theory of Islam in Islam: it’s meaning and message. 

Ahmad Khurshid, Ed. London: Islamic Council of Europe, 1976, pp. 159–61.   

Maududi, Abu Ala. Jihad in Islam. Beirut, Lebanon: Holy Quran Publishing house, 1980, p 6, 7, 22.   

Khomeini, Ayatollah (1981). Islam and Revolution: Writings and Declarations of Imam Khomeini. Tehran: Mizan press.   

Travis, Hanibal (2005). FREEDOM OR THEOCRACY?: CONSTITUTIONALISM IN AFGHANISTAN AND IRAQ. Journal of International Human rights, vol 3.   

Robert B. Thigpen (1998). Rawls and the challenge of theocracy to freedom. Journal of Church and State  Vol. 40 Nbr. 4.   

Ran Hirschl, The Rise of Constitutional Theocracy, 49 Harv. Int’l L.J. Online 72 (2008), http://www.harvardilj.org/2008/10/online_49_hirschl/.   

OHCHR (2007). International Covenant on Civil and Political Rights on http://www2.ohchr.org/english/law/ccpr.htm Accessed 29/05/2012 ICJ. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judg. 27 June 1986 ( Reports 1986, p. 14)   

ICJ. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, article 36.   

Wallace, Rebecca, M M (2010). International Law. United Kingdom: Sweet & Maxwell.      

http://www.orthodoxislam.org/international-law-and-theocracy-a-proposal.html

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

Modern Nation States and the Islamic Caliphate and Ummah: Are they compatible?

By Muhammad ibn Kateb Al-Ashari

Contents

Background
Modern nation states and it’s concepts 2
The concept of Caliphate and Ummah in Islam
Caliphate and it’s conditions 3
Ummah it’s meaning and it’s duty 5
The duty of the Islamic political parties 6
Conclusion 6
End Notes 8
Bismillah Ar-Rahman Ar-Raheem

Background

Today wold is just a compilation of some nation states where many different races and ethnicities reside. The days of empires have ended and so does the days of kings and emperors who ruled over vast regions in the past. In that past time existed the Islamic system of governance : the Caliphate. So the question asked “is caliphate and it’s subject (Muslim nation) compatible with today’s “nation states””? Muslim is the only people who are recognized by their religion as a nation, not by their race or language or culture. The concept of nationalism as stated below is not similar to the concept of Muslim nationalism if at all there is anything as Muslim nationalism, because Muslims are a nation (ummah) whose peace and security ought to be one. My position in this paper is “the concept of Caliphate and ummah is compatible with nation states today if certain conditions are fulfilled”. This is to me is Islamic nationalism and reality which is to be of Muslim nation states. Do consider the difference between Muslim nation and Muslim states. If I use Muslim nation states I mean Muslim nations otherwise it should be understood as the ummah (Muslim nation)

According to contemporary Western definition the nation state is a state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial uniti. The characteristics of a nation state is fourii. If these four are found then it can be said that a nation state exists. The four traits are: a) A permanent population b) A defined territory c) Government d) The ability to enter into relation with other states. These conditions are sometimes not fully seen such as Somalia as an example where there is no effective government, but nonetheless a state. The most important thing for a state is sovereignty, what makes it independent from others in sense of legal jurisdiction on it’s territory. However in federal states there are sovereign states with in state such as in USA or Canada but these internal states somewhat sovereign are not treated as states due to the fact that they are not sovereign to enter in to treaties. This is what the concept is to the western academics and certain legal bodiesiii.

The origins and early history of nation states are disputed. Romano identifies the French Revolution as the source of modern European nationalism. Fired by patriotic fervor as they swept across the continent, French revolutionary armies, followed by those of Napoleon, stirred nationalist backlashes everywhere in Europeiv. To know fully why nation state is different from empires one should ask what nationalism is. One is the primordialist perspective that describes nationalism as a reflection of the ancient and perceived evolutionary tendency of humans to organize into distinct grouping based on an affinity of birthv. So It can be a nationalistic (Nation building as well) belief that citizenship in a state should be limited to one ethnic, cultural, religious, or identity groupvi. In this sense the rise of nation states can be ascribed to ethnic and racial reasons among others, otherwise how can it be different from an empire?

Islam does not define the concept of state as a definition we would ask to find in it’s sources but we can say that Islam recognizes the concepts of territories, rulers, population and laws. It is very common in Islamic texts and Islamic jurisprudence that such terms have been mentioned to address legal, foreign trade and warfare issues among others. Such elements are both common to empires and nation states but even then there are differences. For example in Europe marriage among royals would sometimes result in land swap which is not the case for nation states. The way Islam has dealt with elements of empires or nation states are that “A ruler ruling over it’s subjects in a land which has a delimiter and who trades with foreign rulers”. This is what I can say about how Islam has looked at the elements of empires or nation states. Hence the basis of race or ethnicity does not play a role in determining the concept of state in Islam, however a specific part of a specific race does play an important role in one important aspect as we shall see later.

The concept of Caliphate and Ummah in Islam

The meaning of the term caliphate from (khaleefa) is to interchange the predecessor and take his positionvii. In this sense man is khaleefa on earth of it’s previous inhabitants who were the jinnsviii. In the legal jargon calipha (caliph) is the greater Islamic ruler ie. Ruler over all Muslims and Muslim lands. It’s general term is khilafa (caliphate) meaning leadership which is a proliferation from the leadership of the Prophet pbuh to protect the religion and the political system of Islamix. Scholars have thus questioned that whether caliphate is a rationale necessity in Islamic political system or a religious onex. I think they have seen these two distinctions in separate perspectives and both of them are right in their own perspective. It is because one group said it is a rationally viable necessity saw it in the interest of worldly life, where as the other group who said it is a religiously ordained injunction saw it both in the perspective of obeying God’s command and reaping worldly as well as spiritual benefits through this. The verse of holy Quran also suggests a specific form of political system in Islam a system where leadership is subservient to Divine authorityxi. But this should not be a valid ground where people will use negation-principle to rebel rulers who are not subservient to Divine authority unless certain conditions are fulfilledxii.

The conditions of a valid caliphate are seven xiii:

a) Justice with it’s complete conditionsxiv

b) Ability to deal with prevailing and contemporary issues of his time

c) Perfection in hearing, speaking and listening for efficiency in maintaing and running the office.

d) Perfections in limb and body.

e) Sharp intellect

f) Courage and integrity to engage against the enemies

g) From the lineage of the Quraish

Point d could be said to have been more suitable when caliphs used to engage in actual battle unless the caliph himself is a military general like positions held by Hitler or Pinochet, this condition is rarely seen and yet needed in today’s world but I think a caliph should be an expert in military strategy and tactics and as being the head of the armed forces of Islamic state should position himself as such.

Point f is very much needed in today’s time when most of the Muslim leaders are cowering in fear and insecurity of their own potentials apart from the marvelous example which Iran is showing.

Point g is very important as this is a religious injunction where others have been deduced from the spirit of Divine texts. Only a person who can be traced to the lineage of the Quraish dynasty can be a candidate for caliphate and so the Islamic ummah has no other choice but to choose as their ultimate and supreme leader an Arab from the prophet’s dynasty. This is the special condition which I mentioned in the beginning section. Now are Muslims psychologically ready to accept this? Are they ready to start the phase to realize this? It is extremely difficult when the Muslims are poisoned by the notion of western nationalism and western democracy.

Modern nation states have been based on the concept of secularism and democracy and it is not easy to see them only in terms of territories without their political ideas shaping such landscapes. However the Islamic concept of nationstate is based on Islamic nation and caliphate as stated, and how this caliphate materializes is a matter we need to shed some light on. The caliphate is legally established in two ways and the third way even though not legal but once established Muslims are obliged to follow. The first way is through the selective process of ahl hil wal aqdxv. These are the people who are experts in Islamic jurisprudencexvi, and to Imam Nawawi intellectuals to whom people go in their needsxvii. All of the companions were more or less people of reason and religious comprehension specially those who were there to establish the four caliphates. It is also noteworthy that not even all people participated in the selection of Abu Bakr (ra) but only five agreed and others followed in their footsteps, and we cannot say the undemocratic start of Islamic caliphate was wrong and void of any benefits. Hence the concept of democracy which is the other half of modern nation states cannot be said to accommodate such an Islamic structure. The second way of establishing the caliphate is through transfer of the power of Caliphate by a previous caliph to someone meeting the conditions of caliph. It is because Abu Bakr transferred the caliphate to Umar (ra) and there is ijma (consensus) on this type of caliph choosingxviii. The third way is not legal but a result of event which bestows on the population a rulerxix. An example would be some Muslim ruler enforcing his authority on Muslims through armed attack and thereby overtaking the location and installing new monotheistic government. I say this because Muslims are not allowed to be ruled by a disbeliever or a government which bans Islamic values and culture from people’s lives. This is only when people are able to unite and rebel against this government. This type of government due to showing “kufr bawah (open disbelief)” has lost legitimacy and invoked disobedience from Muslimsxx.

I discussed above about the Islamic political system which affects the formulation and molding of the Islamic nation states just as secularism and democracy forms and shapes the modern nation states every day.

Now I will discuss about the nation who makes such states. The concept of Islamic nation is cohesive showing gravitational pull towards the centre where every nation states and every Muslims of every race residing in such states are the physical masses, the caliphate being the unseen gravitational force. All these make up the Islamic nation and in Arabic termed as Ummah. Ummah’s lexical meaning is “a way or a religion”. It’s theological meaning can be found in holy Quran which addresses Muslims as people of righteousness on faithxxi. This same norm of address was given to prophet Abaham pbuh. It stated him as an Ummah. If we compare these two verse we find that Ummah is any person or persons who share with each other the monotheistic faith and religion. I will accept the concept of modern nation states (the four conditions) as stated earlier in the essay. I will extend that definition to include the government as Islamic political system and the territory being primarily Muslim. How Islamic ummah can form government for it’s territory? Now caliphate is not a sudden emergence but in the modern context I believe that first Islamic rulers and governments should emerge locally and then establish the caliphate when sufficient number of Islamic government has formed. Another way is an Islamic government will form on a Muslim territory and it shall call for the Ummah to establish caliphate. In this sense modern nation states and Islamic caliphate and Ummah is not contradictory but complementary. First I need to discuss does this Ummah have a duty to initiate such a process to caliphate because the concept of modern nation states largely depends on the will of the people? Yes it does as mentioned in Imam Mawardi’s book which states that Muslims have a collective obligation to choose their caliph. The process is also very specific: Two groups will appear one who will call for the caliphate and another who will select from the former a caliphxxii. It is no problem even if the callers to caliphate all belong to the Quraish lineage. It is not an obligation that only one person from Quraish comes forth., but the condition is that the caliphate must not go out from the Quraish.

It is true that modern nation states exist as independent jurisdictions from each other but nonetheless it is percievable that even such independent jurisdictions can be brought about under one rule of law or even further government and military. If we consider NATO and EU we see one body of law is supreme over all members of EU and that one military is supreme and serves interest of these members even though the legal systems of such countries are different and even though they are independent government. But the concept of Islamic caliphate goes even a bit further. The centralized government will be the seat of caliphate and the law shall be legislated from the government of the caliphate. It is possible that there could be one set of laws transcending all Muslim lands under this caliphate just as the federal laws of USA, and it is also possible that each Muslim state can adopt it’s own laws through it’s own Islamic madhab just as US states have it’s own state laws for all the states it has got. If the caliph so wishes it is also foreseeable to give

certain powers to the provincial governments to enter into foreign relations on behalf of that province. The only transcendent rule is “Caliphate shall be appointed and will have the power which overturns all provincial codes and laws, and that a separate council of Islamic jurists to oversee the works of the caliph whether conforming to Quran and Sunnah or not, just as the Guardian Council in Iran.” However such a council should be there only to monitor the workings of the caliphate but not to impose anything, as they themselves should be subservient to the caliph in all maters of good and benefits of the ummah and Islam. The establishment of Islamic caliphate will not erase boundaries of Muslim lands but will consolidate the lands under a single powerful caliphate. This is what Islamic nationalism is to me. Democracy will play very little role if any and democratic process shall only be allowed in low level provinces through the permission of the caliphate if he sees so fit. I want to mention why people today crave for democracy? Firstly, secularism actively promotes democracy because to prevent the misuse of power from the rulers, as rulers in this system have no loyalty but to their selves and parties, where as in Islam caliph and provincial rulers must have loyalty to Allah, Lord to who all Muslims must show their loyalty to. It is lack of faith from the secularists in their rulers and it is also greed for power that they crave democracy which is the blood of modern nation states. Germans adored Hitler even though the ruthless dictator to others, he was, because German had faith in him and he fulfilled German aspirations and raised the German head high which the treaty of Versailles had cut of. Unlike Fascism or Democracy Islam demands from us obedience to our ruler and demands the rulers to love the people.

There are lot of Islamic parties today in the world scattered through Muslim lands but some of them lacks motivation or lacks a real sense to pursue establishment of caliphate. There is lack of interconnectivity among them and organization is not multilayered and fragile. On the other hand Muslims have been deeply deceived by the hoax of western democracy and western pursuit of freedom. They think through change of values will come the change in economy and technology but they are wrong. Modern nation states developed through the efforts of it’s people and by same analogy it is meaningful that we Muslims develop ourselves and lands through our effort which has it’s root sowed in belief in caliphate and ummah.

Conclusion

As I have discussed it is clear that certain conditions must be fulfilled for islamic caliphate and ummah to

adapt with the modern nation states which are being:

a) Muslim acceptance of the Islamic caliphate

b) Each state subservient to the Islamic caliphate more like federal states and the caliphate similar to EU in in structure superseding provincial laws of the Muslim states, but yet extending more power over such provinces

c) Flexibility in adopting any Islamic madhab throughout the provinces and striking a balance between the Caliphate madhad (similar to federal laws) with the provincial madhabs (similar to federal state laws).

These three conditions if fulfilled Muslim states can exist as well as the islamic caliphate, Allah willing. The only requirement is the will to submit and the will to form. We have seen what lack of will from the security council to progress peace did to the world, and we also see what lack of will from Muslim rulers is doing to Ummah and the doctrine of Islamic caliphate. What separates us from matters of universe is our will to act.

———–
End Notes

iSuch a definition is a working one: “All attempts to develop terminological consensus around nation resulted in failure”, concludes Tishkov, Valery (2000).
iiRebecca M M Wallace & Anne Holliday, International Law (2nd Ed), pg 49 Sweet & Maxwell, London
iiiFor example see Arbitration Commission of The European Conference on Yugoslavia 1991, Opinion Number 1.
ivSergio Romano. An Outline of European History 1789 -1989. New York and Oxford: Berghahn Books, 1999
vMotyl. Encyclopedia of Nationalism, Vol. 1: Fundamental Themes, 2001, p. 251
viKymlicka, Will. (1995). Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. p. 16.
vii2:30 Al-Baqarah Tafsir Zamakhshari by Imam Zamakhshari.
viii see Ibn Katheer in Stories of the Prophets.
ixImam Mawardi, Book of Imamah Pg 1, in Al-Ahkam Al-Sultaniyya.
xIbid
xi4:59 Holy Quran
xiiThat needs separate discussion under “rebellion in Islam”
xiii Imam Mawardi, Book of Imamah Pg 3, in Al-Ahkam Al-Sultaniyya.
xiv See “conditions of Adalah”, Sunnah, in Rauda An-Nazir by Imam Ibn Qudama Al-Maqdasi.
xvImam Mawardi, Book of Imamah Pg 3, in Al-Ahkam Al-Sultaniyya.
xviImam Nawawi, Book of Imamah, Minhaj Al-Talibeen
xvii Ibid
xviii Imam Mawardi, Book of Imamah Pg 8, in Al-Ahkam Al-Sultaniyya.
xixHadith narrated by Anas ibn Malik in Bukhari with wording in passive tense “…were made your chief…”
xxHadith Narrated by Ubada Ibn Samit in Bukhari and Muslim
xxiAl-Imran 110 and Al-Nahl 120.
xxii Imam Mawardi, Book of Imamah Pg 2, in Al-Ahkam Al-Sultaniyya.

http://www.orthodoxislam.org/modern-nation-states-and-islamic-caliphate-and-ummah.html

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook

Shuuraa (Mutual Consultation) and Democracy: A Conceptual Analysis

Dr. Ja`far Sheikh Idris, professor of Islamic studies,
Institute of Islamic and Arabic Sciences, Washington, states,

What is Shura?

Shura comes from an Arabic word shara whose original meaning, according to classical Arabic dictionaries, is to extract honey from hives. The word then acquired secondary meanings all of which are related to that original one. One of these secondary meanings is consultation and deliberation. The way consultation and deliberation bring forth ideas and opinions from peoples’ minds must have been seen to be analogous to the extracting of honey from hives. It might also have been thought that good ideas and opinions were as sweet and precious as honey.

According to this purely linguistic meaning, Shura is no more than a procedure of making decisions. It can thus be defined as the procedure of making decisions by consultation and deliberation among those who have an interest in the matter on which a decision is to be taken, or others who can help them to reach such a decision.

The important matter on which Shura is made can be either a matter which concerns an individual, or a matter which concerns a group of individuals, or a matter that is of interest to the whole public. Let us call the first individual Shura, the second group Shura, and the third public Shura.

Thus formally understood, Shura has nothing to do with the kind of matter to be decided upon, or the basis on which those consulted make their decisions, or the decision reached, because it is a mere procedure, a tool you might say, that can be used by any group of people – a gang of robbers, a military junta, an American Senate or a council of Muslim representatives.

There is thus nothing in the concept which makes it intrinsically Islamic. And as a matter of fact Shura in one form or the other was practiced even before Islam. An Arab Bedouin is reported to have said, “Never do I suffer a misfortune that is not suffered by my people.” When asked how come, he said, “Because I never do anything until I consult them, astasheeruhum.” It is also said that Arab noblemen used to be greatly distressed if a matter was decided without their Shura. Non-Arabs also practiced it. The Queen of Sheba was, according to the Qur’an, in the habit of never making a decision without consulting her chieftains. In this context, the Glorious Qur’an narrates: “She (the Queen of Sheba) said: O chieftains! Pronounce for me in my case. I decide no case till ye are present with me.” (An-Namal: 32)

What is democracy?

What is democracy? The usual definition is rule, kratos, by the people, demos. On the face of it, then, democracy has nothing to do with Shura. But once we ask: “How do the people rule?” we begin to see the connection.

‘Ruling’ implies ruling over someone or some group, and if all the people rule, over whom is it that they rule? (Barry, 208)

The answer on which almost all democracy theorists are agreed is that what is meant by ‘rule’ here is that people make basic decisions on matters of public policy. How do they make those decisions? Ideally, by discussion and deliberation in face-to-face meetings with the people as was the case in Athens.

Similarities

Democracy, then, has also to do with decisions taken after deliberation. But this is what an Arab would have described as Shura. It might be thought that there still seem to be some differences between Shura and democracy, because the latter seems to be confined to political matters. But the concept of democracy can easily be extended to other aspects of life because people who choose to give the power of decision-making on political matters to the whole population should not hesitate to give similar power to individuals who form a smaller organization, if the matter is of interest to each one of them. The concept of democracy can be, and is, therefore, extended to include such groups as political parties, charitable organizations and trade unions. Thus broadly understood, democracy is almost identical with Shura. There is thus nothing in the primary or extended meaning of democracy which makes it intrinsically Western or secular. If Shura can take a secular form, so can democracy take an Islamic form.

Islam and secular democracy

1. Basic differences:

What is it that characterizes Shura when it takes an Islamic form, what is it that characterizes democracy when it takes a secular form, and what are the differences between these forms, and the similarities, if any? What would each of them take, if put in the framework of the other? I cannot go into all the details of this here. Let me concentrate therefore on some of the vital issues which separate Islam and secularism as world outlooks, and therefore give democracy and Shura those special forms when placed within their frameworks.

Let us understand by secularism the belief that religion should not have anything to do with public policy, and should at most be tolerated only as a private matter. The first point to realize here is that there is no logical connection between secularism and democracy. Secularism is as compatible with despotism and tyranny as it is compatible with democracy. A people who believe in secularism can therefore without any violation of it choose to be ruled tyrannically.

Suppose they choose to have a democratic system. Here they have two choices:

a. They can choose to make the people absolutely supreme, in the sense that they or their representatives are absolutely free to decide with majority vote on any issue, or pass or repeal any laws. This form of democracy is the antithesis of Islam because it puts what it calls the people in the place of Allah; in Islam only Allah has this absolute power of legislation. Anyone who claims such a right is claiming to be God, and any one who gives him that right is thereby accepting him as God. But then the same thing would happen if such a secular community accepted the principle of Shura, because they would not then exclude any matter from its domain, and there is nothing in the concept of Shura which makes that a violation of it.

b. Alternatively those secular people can choose a form of democracy in which the right of the people to legislate is limited by what is believed by society to be a higher law to which human law is subordinate and should not therefore violate. Whether such a democracy is compatible with Islam or not depends on the nature and scope of the limits, and on what is believed to be a higher law.

In liberal democracy not even the majority of the whole population has the right to deprive a minority, even if it be one individual, of what is believed to be their inalienable human rights. Belief in such rights has nothing to do with secularism, which is perfectly compatible, as we saw, with a democracy without limits. There is a basic difference between Islam and this form of democracy, and there are minor differences, but there are also similarities.

The basic difference is that in Islam it is Allah’s law as expressed in the Qur’an and the Sunnah that is the supreme law within the limits of which people have the right to legislate. A true Muslim never makes, or freely accepts, or believes that anyone has the right to make, or accept, legislation contravening the Divine law. Examples of such violations include the legalization of alcoholic drinks, gambling, homosexuality, usury or interest, and even adoption.

When some Muslims object to democracy and describe it as un-Islamic, it is these kinds of legislation that they have in mind. A Shura without restriction or a liberal Shura would, however, be as un-Islamic as a liberal or an unconstrained democracy. The problem is with secularism or liberalism, not with democracy, and will not therefore disappear by adoption of Shura instead of democracy.

Another basic difference, which is a corollary of this, is that unlike liberal democracy, Islamic Shura is not a political system, because most of the principles and values according to which society is to be organized, and by which it should abide, are stated in that higher law. The proper description of a political system that is based on those principles is that it is Islamic and not Shuraic, because Shura is only one component of it.

This characteristic of Islam made society immune to absolute tyranny and dictatorship. There have been Muslim rulers who were despotic, but they were so only in that they were not chosen by the true representatives of the Muslim people, or that they were not strict in abiding by some of the Islamic teachings; but none of those who called themselves Muslim rulers dared, or perhaps even wanted, to abolish the Islamic law.

This emphasis on the law stood in the way of absolute tyranny in another way. It gave the `Ulama’ (Muslim scholars) so much legislative power that it was their word, and not that of the ruler that was final on many matters. An interesting section of one of al-Bukhari’s chapters reads: If the ruler makes a decision that is contrary to that of people of knowledge, his decision is to be rejected.

2. Similarities:

So much for the basic differences, we now come to the similarities, and some of the less basic or minor differences.

Islam and liberalism share certain values, basically those which the concepts of democracy and Shura entail.

In liberal democracy there are rights which individuals have as individuals, even if they are in a minority. These rights are said to be inalienable and cannot, therefore, theoretically speaking, be violated, even by the overwhelming majority of the population. Such violation, even if embodied in a constitution, makes the government undemocratic, even tyrannical. One might think that the idea of inalienable rights is not compatible with the basic concept of democracy as rule of the people, because if the people choose, by majority vote, to deny some section of the population some of what the liberals call their human rights, then that is the rule of the people, and it would thus be undemocratic to not to let it pass. But on close inspection one can see that this is not so. It is not so because the concept of democracy entails that of equality. It is because the people are equal in having the right to express their opinion as to how they should be ruled that democracy is the rule of the people. But surely individuals have rights that are more basic than participating in decision-making whether directly or indirectly. To participate they must be alive, they must be able to express themselves, and so on. There is thus no contradiction between the concept of democracy or Shura and the idea of inalienable rights that sets limits on majority rule, because the former is more basic to democracy than the latter.

If I am right in saying that these values are entailed by democracy and Shura, it follows that absolute democracy, that is not constrained by those values, is a contradiction in terms.

Islamic Shura agrees with liberal democracy that among the important issues to be decided by the people is that of choosing their rulers. This was understood from the fact that the Prophet chose not to appoint his successor, but left it to the Muslims to do so, and this was what they did in a general meeting in Al-Madinah. When it was reported to `Umar, the second Caliph, that someone said that if `Umar died he would give allegiance to so-and-so as Caliph, he got very angry and said that he would warn the Muslims “against those who want to forcibly deny them (their right)”. He later made a public speech in which he said: If a person gives allegiance to a man, as ruler, without a consultative approval of the Muslims, `ala ghayri ma Shurati-n min al muslimeen, then neither he nor the man to whom the allegiance is given should be followed. (Bukhari)

As far as my knowledge goes, the manner in which this public right is to be exercised, is not specified in any authoritative statements or practice. The first four, the rightly-guided, Caliphs were chosen in different ways.

Is the Islamic state democratic?

Can a country that abides by the principle of Shura constrained by Islamic values be described as democratic? Yes, if democracy is broadly defined in terms of decision-making by the people. No, if it is arbitrarily defined.

In judging which countries are democratic, we will use a strictly formal definition of democracy. A country is democratic if it grants people the right to choose their own government through periodic secret-ballot, multi-party elections on the basis of universal and equal adult suffrage. It could also have been specific on the periods of time between elections.

Why should the right to form political parties be a condition for democracy? Suppose that a country gave its people, as individuals, and not as party members, the right to freely choose their government, why should that exclude it from being democratic?

Why should government elections be periodic? Can’t a country be democratic and set no limit to the term of its ruler so long as he was doing his job in a satisfactory manner, but gave the elected body that chose him the power to remove him if and whenever they thought that he was no longer fit for the job?

Having said all this, I must add that I do not set any great store on the epithet ‘democratic’. What is important to me is the extent to which a country is Islamic, the extent to which it abides by Islamic principles, of which decision-making by the people is only one component and, though important, is not the most important.

Allah Almighty knows best.

http://www.onislam.net/english/ask-the-scholar/shariah-based-systems/imamate-and-political-systems/174974-shura-and-democracy-a-conceptual-analysis.html?Political_Systems=

Note:

If you wish to send me a “private” message, please click here: Facebook.

Click here to LIKE Utlub-ul-’Ilm on Facebook