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Saturday, June 30, 2012

Discuss the status of woman as competent witness under Islamic law of evidence.

Q. Discuss the status of woman as competent witness under Islamic law of evidence. (2003)
Q. What is competence witness under Islamic law. Can a woman be a competent witness. (1996, 1998, 2000, 2001, 2002, 2004/S)
Q. Who is competence witness under Islamic law? (2004/A)
Q. What are qualification of witnesses for testifying. Discuss the status of woman as a witness. (2005/S, 2007/A)
Q. What are the conditions prescribed in Islamic law for a competence witness. Also discuss the position of woman as competence witness. (2006/S)
1. Introduction

“Under the Islamic law, it is the duty of the witnesses to come forward and give testimony. Witnesses is the medium through which facts can be proved. Islamic law has provided certain qualifications and disqualification for the persons to appear as witness.
2. Meaning of competency of witness
“A witness is said to be competent if there is nothing in law to prevent him from being sworn in and examined, if he wishes to give evidence.”
3. Doctrine of Tazkyat-Ush-Shahood
In Islamic law of evidence the doctrine of Tazkyat-Ush-Shahood is very important. It means that those witness who appear before a court, the court would make inquires about the background and character of such witnesses.
Kinds of Tazkyat-Ush-Shahood
It has two kinds:
(i) Declared Tazkyat-Ush-Shahood.
(ii) Secret Tazkyat-Ush-Sahaood.
4. Importance of testimony

The importance of giving testimony has been provided by various verses of Holy Quran.
“Don’t conceal testimony, He who conceals it, his heart is sinful” (Al-Baqrah: 282)
“Whenever Ye speak, speak justly even if a near relative is concerned.” (Al-Inam: 152)
“Never try to mix up wrong with right and do not conceal the truth intentionally:” (Al-Barah: 42)
5. Qualifications for a competent witness
A witness competent to testify must have the following qualification.
(I) Not prevented from under standing
A witness should not be prevented from understanding the question put to them. A witness maybe prevented from understanding due to the tender age, old age or disease, whether of body or mind.
(II) Not convicted by court for perjury
A witness should not be convicted by court for perjury or giving false evidence
Exception:
A person convicted may be competent to testify as witness, where the court before which he appears is satisfied that after conviction, he has repented and amended his ways.
(III) Freedom from prejudice and bias
A witness must not be prejudice or bias, hence the testimony of following witnesses is inadmissible.
(i) Father in favour of his son and vice versa.
(ii) Slave in favour of his master.
(iii) Parties in support of their own claim.
(iv) Person who bears a grudge against the opposite party.
(v) Non-Muslim against a Muslim etc.
(IV) Reliability of character

The witness must be of reliable character.
According to Hanafis:
According to Hanafis, a witness is said to be of reliable character if his religion and reasons overcome his lust and when and he also avoid major sins.
According to Maliki’s:
According to Maliki’s and Shaft’s a person is of reliable character if he avoids major sins and he must also be a trustworthy person.
Tazkia-Al-Shahood:
Tazkiah is an obligation on Qazi for ascertaining the competency and righteousness of a witness by himself or through the medium of purgatory when competency of witness is challenged, that
(i) The witness should be clean from deeds which attract Hadd punishment
(ii) The witness should be free from sins
(iii) The witness should be Adil
(V) Maturity

A witness must be a person of mature mind and understanding.
(VI) Eye-sight
A witness must posses eye-sight in case of facts capable of being seen.
(VII) Speech
A witness must possess the capacity to speak or communicate in cases of Huded.
(VIII) memory
A witness must be of good memory and person of bad memory is not considered as a competent witness.
(IX) Muslim
The jurists agreed that Islam is a condition for the acceptance of testimony and the testimony of disbeliever is not permitted but the jurists did not agree regarding its permissibility in bequests made on a journey. Abu Hanifah said that it is permitted upon the conditions mentioned by Allah, while Malik and shafi said that it is not permitted.
6. Condition for giving testimony
(i) Existence of complaint and the requisition of the testimony.
(ii) Testimony is to be given before the court.
(iii ) Witness has the personal knowledge of the facts to be stated except in cases where hearsay evidence is admissible.
(iv) The word shahadat must be used in the beginning
(v) Witness must remember the incident.
(vi) Witness must be able to identify the parties
(vii) Conformity of the statement with the claim.
(viii) In Hudud cases (Qadhaf) facts must not occurred in the distant part.
7. Competency of women as witness

The competency of women as a witness is discussed under the following heads.
(I) Competency in Hudud cases
The competency of a women in cases, belonging to the category of violation of right of Allah, viz Hudud, is that she is regarded as incompetent.
(II) Competency in cases where violation of right of individual is involved.
In cases where violation of right of individual is involved such as Tazir, the testimony of women is accepted if the prescribed Nisab is observed, that is the testimony of one male and two female witnesses.
(III) Financial transactions
In matters relating to financial or future obligations, the testimony of two woman is accepted with one male.
(IV) Specific matters where testimony of women is needed
Testimony of woman in matters which are generally known to women such as whether a particular child was bon to a particular woman, can be proved even by the testimony of single woman.
(V) Other matters
I other matters, a court may accept and act upon the testimony of one woman.
Note: it is necessary that a woman must possess all other qualifications of a competent witness.
8. Position in Pakistan

The competency and number of witnesses are provided article 3 and 17 of Q.S.O, 1984 respectively, Article 3 provides that a witness must not prevented from understanding and is capable of giving evidence and qualified a witness under Holy Quran and Sunnah, whereas Article 17 provides that the number of witnesses required to prove a fact is to be determined in accordance with the injunctions laid down in the Holy Quran and Sunnah.
9. Conclusion
To conclude, I can say, that the necessity mostly arises in cases when the fact in question has originated a right in some one against another and the latter denies it, but there are certain reasons which induce men to tell falsehoods or the circumstances. Which prevent them from giving correct and reliable information, so the Islamic law has provided certain qualifications for a competent witness.

Tuesday, June 26, 2012

Define contract? What are the ingredients of a valid contract in Islamic law?

Q. Define contract? What are the ingredients of a valid contract in Islamic law? (1994, 1999, 2000, 2003, 2004/A, 2005/A, 2006/A)
Q. Discuss the ingredients of a contract under the Islamic civil law. (2002, 2003/S)
Q. Define contract. What are the essentials of valid contract in Islamic law? (2007/A)
1. Introduction

Contract law ensures the parties to private agreements that any promises they make will be enforceable through the machinery of the state. Islam attaches great importance to keeping of promise. In case promises are not kept faithfully it will result in great confusion and mistrust.
2. Meaning of contract
The corresponding Arabic word for contract is “Adq” which has its both legal and literal meaning.
(I) Literal meaning:
Literally it means conjunction, tie, knot.”
(II) Legal meaning:
(i) The union of the declaration of one of the contracting parties with that of the other in a legal manner, the result of which is reflected in their subject matter.”
(ii) “A contract or adq is any statement or word that has the effect of legally binding a person too fulfill an obligation or to perform a duty.”
3. Importance of contract according to Quran and Sunnah
(I) The Holy Quran says:
“And keep the covenant. Lo! Of the covenant it will be asked”. (Al-Isra: 34)
“O Ye who believe fulfill your agreements” (Al-Maidah: 1)
“Such as keep the pact of Allah, and break not the covenant” (Ar-Rad: 20)
The Sunnah of Holy Prophet (Peace be Upon Him) shows the importance of keeping the agreements.
He says:
“He who has no respect for keeping promises, does not possess deen.”
4. Formation of contract
The formation of contract does not require any formality under Islamic law. In this regard offer and acceptance are essentials.
5. Ingredients or essentials of contract in Muhammadan law
Following are the ingredients or essentials of contract.
(I) Plurality of parties
A contract requires that there should be two parties to it, at least. Any one person cannot from a valid contract.
(II) Aijab and Qabul
Ijab and Qabul or proposal and acceptance are the constituents of a contract one party should make a proposal and the other should accept it.
Example:
‘A’ Offers to sell his car to ‘B’. ‘B’ accepts his offer. It is a contract.
(i) Conditions for Ijab and Qabul
Following conditions have been laid down by the jurists for the valid offer and acceptance.
(a) Conformity offer and acceptance
It is necessary that the acceptance must conform with the offer and any variation in the acceptance made it a counter offer.
Example:
‘A’ says to ‘B’ I have sold this car to you for 10,000 ‘B’ replies I have accepted it for 8,000.” This is not a valid acceptance and hence there is no contract.
(b) Must be in same session
The offer and acceptance must be made at the same meeting, either in fact or what the law considers as such.
Example:
‘A’ says to ‘B’ I want to sell my horse to you. ‘B’ says nothing and leaves the place. The offer comes to an end and ‘B’ cannot accept it later.
(c) Acceptance before the termination of offer
Acceptance must be made before the termination of offer, otherwise the contract cannot be made.
(III) Mahall Al Aqd (subject-matter of contract)
The mahall-al-aqd is the thing for which an agreement has been made, and in which the effects of the contract are visible. It is almost same as the term consideration in English law.
(i) Conditions of Mahall al Aqd
The subject matter must have legal value.
(a) It must be in existence at the time of the contract.
(b) It should be potentially capable of delivery at the time of the contract.
(c) It must be known to the parties.
(IV) Capacity to enter into contract

The parties must have the capacity to enter into the contract. They must be sane, major etc.
(V) Legal relation
The contract must be to establish legal relations arising from the consent of the minds of two persons to deal with each other in respect of certain rights of theirs.
(VI) Free consent
The consent of the parties must be free and genuine. It must not be obtained by coercion, undue influence, fraud, mistake or misrepresentation.
(VII) Fitness of Mahall
It is subject matter is not fit for the purpose, the contract relating there to will be void altogether.
(VIII) Legal contract
A contract must be lawful or legal a contract is legal if it is not contrary to Islamic law e. g. contracts in violation of the prohibition of riba or contrary to public policy e. g. contracts in restraint of trade etc.
6. Conclusion
To conclude, I can say, that the law of contract in Islamic law is more or less similar to that of western law. The dominant idea of a contract in Muhammadan law is that, it establishes a tie of legal relations and it is the most important and frequent mode of acquisition of ownership.

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Monday, June 25, 2012

Discuss the concept of ownership in Islam. How it is acquired and lost?

Q. What are the modes of acquiring ownership and loosing it in Islam?
(1993, 1995, 1998, 2000, 2001, 2003, 2005/A)
Q. Define ownership? What properties are included in Mal. (1997)
Q. Discuss the concept of ownership in Islam. How it is acquired and lost? (2004/A)
Q. Define ownership. What are different modes of acquiring and losing it? (2006/A)

Q. Elaborate the theory of ownership in the Islamic Civil Law.(Supply.2001)
1. Introduction

Ownership or milk is regarded very important in Islamic law as it relates to man’s worldly desires and the relation of one man with another. Islamic law provided different modes of acquiring and losing ownership, as it avoids doubt and secure the sanctity of society.
2. Meaning and definition of ownership
(I) General definition
“The relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others.”
(II) As defined by sadru’sh shariat
“It is the expression of the connection existing between a man and a thing, which is under his absolute power and control to the exclusion of control and disposition by other”.
3. Elements in ownership
The most essential elements in the concept of ownership (milk) are the presence of “Control” and “Exclusion of others”. The person who has such powers and control is called the malik or owner.
4. Subject matter of ownership
The thing over which the juristic conception of milk extends may be “Mal”
(I) Meaning of Mal
According to Al-Hawi
“Mal is the name for things other than human beings which have been created for the benefit of men, and which a man can hoard and dispose of at his option.”
(II) Things which are included in Mal
A mal may include following things.
(i) Things having a corpus
According to all Muslim jurists all things which have a body are included in “Mal”.
(ii) Things connected with corpus
According to Malikis and Shafiis, things that are connected with the corpus or physical object are included in mal. Such as usufruct or Manafah, either in the shape of produce of a physical object or of labour and services of men
(iii) Pure rights
According to Hanbalis, pure rights are included in Mal like the right to stipulate an option.
(III) Modern concept of Mal
In traditional Islamic law, Mal not included incorporeal rights like copyrights, patents etc. but modern Islamic jurists and courts have attempted to expand the concept of mal or property to include such rights.
(IV) Classification of Mal
Following classification of mal have been laid down by the jurists.
(i) Moveable and immoveable
By immoveable property is primarily means land and along with it all permanent fixtures such as buildings.
The characteristic of moveable property is that it may be removed from one place to another.
(ii) Similar and dissimilar
An article is said to belong to the class of similar (Maithli) if its substitute can be found by weight or measure and quality such as gold, silver etc.
A thing belong to the class of dissimilar if the like of it is not available in the market or available with slight change , like houses, animals etc.
(iii) Marketable and non-marketable
Marketable things are those that can be converted to private property.
Non-marketable things are those that cannot be converted to private property, like air, sunshine, birds, in the air etc. these things are not regarded as mal.
(iv) Consumable and non-consumable
Consumable things like food and the like. Non-consumable goods like afiouse, Gold, etc.
5. Modes of acquiring ownership
According to the strict theory of Islamic law, ownership is acquired in the followings ways.
(i) By Ihraz (original acquisition)
(ii) By Naql (transfer)
(iii) By Khalf (succession) 

According to the modern jurists, ownership may also be acquired.
(iv) By prescription
(I) By Ihraz

It means securing or taking possession of things not already owned by another. This is original acquisition. Such objects as are not intended for common use and have not already been appropriated by some one may be secured as property e. g. trees growing on mountains etc.
(II) By Naql
The most important and frequent made of acquisition of ownership is transfer by an act of the person having the ownership to another person. Such transfer is effected by means of a contract or Aqd. Which may be in the from of sale, gift etc.
(III) By Khalf
This mode of acquisition belongs to the department of family law. When a person dies, all his property whether moveable or immoveable passes to his legal heirs and they becomes owner by succession.
(IV) By prescription
According to the strict theory of Muhammadan law, a thing to another cannot be acquired by more possession however long, so ownership cannot be acquired by prescription.
But in modern times, the same result has been achieved indirectly by the lawyers of Turkey and Egypt, recognizing the power of the Sultan to forbid the Qazi to hear suits instituted after the lapse of a certain time. In addition to this the law permits acquisition of rights connected with property in the nature of easements by prescription. For instance, a right of way over another’s land.
6. Modes of losing ownership
Following are the different modes of losing ownership.
(i) By transfer
(ii) By extinction of thing
(iii) By death of owner
(iv) By operation of law
(I) By transfer 

Ownership may be lose by an act transfer. The original owner may transfer his thing to another by way of sale, gift, waqf etc. in that case, his ownership will be extinguished and will passed to the new owner.
(II) By extinction of thing
If a thing is destroyed, then the ownership of an owner is losed or comes to an end.
(III) By death of owner
If a owner of a thing dies then his ownership over that thing comes to an end unless his right over that things is of heritable character. Which transfers to his legal heirs after his death.
(IV) By operation of law
An ownership may also comes to an end by the operation of law.
7. Ownership in Islam as compared to that of English law
Ownership in Islamic law as compared to the concept in English law is quit exhaustive and include in it possession as part and parcel therefore, whereas in English law ownership is only a juristic relationship between man and the right that he possesses in respect of certain object.
8. Conclusion
To conclude, I can say, that every human being has right to make, such use of his physical and mental faculties as chooses. Provided has does not interfere with similar liberty of others. It is by the exercise of this inherent right that rights and obligations connected with property are mostly acquired, transferred or extinguished.









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Thursday, June 21, 2012

Define and discuss Jehad? How it is waged.

Q. Why Jehad is waged? What acts are permissible and what not during Jehad. (1994, 1995, 1996, 1999, 2001, 2002, 2003, 2005/S, 2007/A)
Q. Define and discuss Jehad? How it is waged. (2001)
Q. What acts are forbidden in Islamic law in war? (2004/A)
Q. Discuss the concept of Jihad in Islam what acts are permissible in war. (2004/S)


1. Introduction
Jihad is a holy war. The spread of Islam by arms is a religious duty upon Muslims in general. The interest of Din conveys a single goal to spread the message of Islam in the whole world and to establish the supremacy of the Din. The Instrument utilized for attaining this goal is dawah (invitation) in conjunction with jihad.
2. Meaning and definition of jihad
(I) Meaning of jihad:
The word jihad is derived from the word “Jehad”, which means to strive hard.
(II) Definition of jihad:
(i) According to Al Kasani:
“Jihad in the technology of law is used for exending ability and power in fighting in the path of God by means of life, property, tongue and other than these.”
3. Jihad is the light of Quranic verses
I the meccan suras of the Quran, patience under attack is taught. No other attitude was possible. But at Madina the right to repel attack appears and gradually it became a prescribed duty to fight against and subdue the hostile meecans.
“Fight against such of those who have been given the scripture as believe not in Allah or the last day.” (9: 29)
“Then when the sacred months have passed, slay the idolaters wherever ye find them.” (9: 5)
“And the strive for Allah with the endeavour which is his right.” (Al-Haj: 78)
4. Hadith in support of jihad
Following Ahadith supported the concept of Jihad,
“I have been commanded t fight mankind until they say, ‘there is no God but Allah.”
“The reward for keeping the enemy at bay in Jihad carries more reward than carried by seventy prayers.”
5. Declaration of Jihad
According to Mohammadan law, the Imam or the head of the state may declare a jihad against the non-Muslims of Darul-Harb or alient state for the protection of religion.
6. When jihad maybe waged
Jihad may be declared only to ensure the safety of Islam, the Muslim state and do avoid injuries likely to be inflicted by non-Muslims.
7. Conditions for waging war
(i) Jihad is permitted only for the protection of Islam.
(ii) Islamic state must be powerful enough wage a war.
(iii ) No war is waged, where the head of the Islamic out the real aim of jihad which is to ward off injuries likely to be inflicted by non-Muslim.
(iv) No war can be waged unless the non-Muslim subjects of hostile state have first of all been invited to embrace Islam. In refusal they have a choice to submit to Muslim rule become dhimmis and pay Jizya and Kharaj or fight
8. Modes of doing Jihad
There are following modes of doing Jihad.
(I) Jihad-Bl-Mal
Any person who contributes financially to launch Jihad, since he himself cannot take party physically, is called jihad-bl-mal
(II) Jihad-Bl-Nafs
It is to fight the enemy personally. This is the best way of Jihad and is preferable to any other type of Jihad.
(III) Jihad-Bl-Illam
If a person contributes his abilities for the protection and spreading of Islam, it is Jihad-bl-Illam. He can do so by means of his actions, knowledge and deeds. In modern world, this type of Jihad is most important.
9. Types of Jihad
Jihad may be of following types.
(I) Internal Jihad
This is carried on against the evil that may crop within the Muslim society. Evil customs and un-Islamic acts are a serious danger to Islam and they should be crushed by means of Jihad.
(II) Jihad through knowledge or Fiqri Jihad
This type of Jihad is against non-Muslim and disbelievers who raise objection against Islam. It is the duty of Muslims to contradict such propaganda in the light of Quran and Sunnah.
(III) Jihad through war or musala Jihad
Islam has advocated that a war with in fields should be avoided as far as possible, but if it is unavoidable for the cause of Islam, it should be waged. It is of two types.
(i) Dafie Jihad
When Islam state is attacked by enemies of Islam, Jihad to defend the country is dafie Jihad.
As Quran says:
“And fight in the path of God with those who are fighting with you and do not transgress, God loves not those who transgress.” (2: 190)
(ii) Iqdami Jihad
When the enemies of Islam do not stop doing evils against. Muslims then to attack the enemy is called Iqdami Jihad, e. g. Conquest of Makkah.
10. Acts forbidden during Jihad
Following acts are forbidden by Islam during war.
(i) Unnecessary and cruel way of killing others in jihad.
(ii) Not to kill those who are do not participate in war.
(iii) Not to kill those who are in capable of fighting e. g. Women, minors, etc.
(iv) Not to kill prisoners of war.
(v) Not to kill civilians
(vi) Destroy the use of limb or organ of men well as beast
(vii) Slanghtering of animals which is more than what is needed for food is also forbidden.
(viii) Unnecessary destruction of harvest and cutting of trees is forbidden.
(ix) Mischief and high-handedness
(x) Adultery and fornication with captive women is strictly forbidden.
(xi) Massacre is not allowed.
(xii) Killing of farmers is forbidden unless it is done in self-defence
(xiii) Traders, shopkeepers and contractors are to be left alone if they do not participate in war.
(xiv) Burning of captured men or animal.
(xv) Acts which are forbidden under treaties. Must be respected.
(xvi) To keep non-Muslim is front while fighting against the enemy.
(xvii) Killing of hostages.
(xviii) Killing of persons who surrenders.
(xix) Cutting the head of enemy and send it to higher authorities is also forbidden.
(xx) Use of poisonous arrows to the enemy is also forbidden.
11. Acts permitted during Jihad.
(i) Killing of persons who fought against Islamic Army.
(ii) Any type of weapon may be used except poisonous weapon.
(iii) To detect the presence of the enemy and to surround him in war.
(iv) Propaganda against enemy can be made.
(v) To take possession or destroy enemy property.
(vi) To cut water supply of the enemy or to polute it.
(vii) Using of force to get food for Islamic army.
(viii) To do anything which is not expressly forbidden.
12. Conclusion
To conclude, I can say, that Allah Almighty has laid down in the Holy Quran that Muslims should make every possible effort to remove obstructions in the way of Islam and even fight and give their lives in the way of Allah. The underliying idea of Jihad is to maintain the predominance or balance of power and that idea can be achieved in the modern world through the medium of agreements and Muslims should focus of the institution of dawa (invitation) than on the instrument of Jihad.

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Thursday, June 7, 2012

Shura is an important pillar in constitutional law.

Q. Shura is an important pillar in constitutional law. (2001, 2003)
Q. What is the silent features of Islamic system of Shura?
Q. Shura is an important organ of an Islamic State.Define and dicuss its role under the Islamic Constitutional Law. (Annual.2001)
Q. Discuss the importance and role of Surha in an Islamic state in the light of Quranic verses. Support your answer with the practice of the Holy Prophet (PBUH) and Kuhlafa Rashideen.(Supply.2001)
Q. Discuss the importance and role of Surha in an Islamic state in the light of Quranic verses. (2001, 2003/A)
Q. Discuss the characteristics of Islamic system of Shura. (1994, 1996, 1997, 1998, 2005/S)
Q. Discuss the role of Shura in Islamic state. (2005/A)
Q. Shura plays an important role in an Islamic state discuss in detail (2006/S)
1. Introduction

Islam has given a method to hold consultation among the Muslims for administrating their affairs of Govt. there is place and a very important one, for shura or counsel in the Quranic state. Shura is one of the most important institution of Islam and regarded as source of expression of public opinion.
2. Meaning of Shura
“Shura is a body of representatives of Muslims community, who assemble for consultation with each other to reach on a decision for running the business of Govt.”
3. Importance of Shura in Islamic state
(I) According to Quran
Following verses of Holy Quran shows the importance of Shura system.
“And consult with them upon the conduct of affairs.”
“The affairs of state are run by their mutual consultation.”
(II) According to Ahadiths
“Hazrat Abu Hurairah narrated the practice of the Holy Prophet (Peace be Upon Him) “I have not seen anybody who could excel the prophet in consultation from companinons.”
Hazrat Ayesha (R. A) says:
“ I have not seen a person consulting the people more than Holy Prophet (Peace be Upon Him). If Abu Bakar (R.A) and Umar (R.A) got together on an opinion. He would not go against that.”
4. Types of Shura
During the period of Caliph Umar (R. A) there were two types of Shura.
(I) Shura Aam
It was consisted of the people from the general public.
(II) Shura Khas
It was consisted of eminent companions.
5. Person who may be elected as Shura members
Following persons may be elected as members of Majlis-e-Shura.
(i) Persons who enjoy the masses.
(ii) Whose sincerity, ability and loyalty is above reproach in the eyes of the public.
(iii) Whose participation in the major decisions of the state would itself reflect that free and willing cooperation of the masses is available to the state.
(iv) Whose character is distinguished in the state.
Quran says:
“The most honoured of you in the sight of God the most pious among you.” (Surah-Al-Nisa: 83)
6. Duty of Majlis-E-Shura
It is the duty of the members of the Shura to give best opinion according to their wisdom Holy Prophet (Peace be Upon Him) says:
“The man who gives counsel to his brother knowing fully well that is not right does most surely betray his trust.”
7. Characteristics of Shura
Following are the important characteristic of Shura system.
(I) Will of God
Shura is subject to the will of God.
(II) Compulsory
Principle of Shura is compulsory and is required by sharaih. An Islamic state must consult its subjects in all important affairs.
(III) Freedom of opinion
Freedom of opinion is an essential characteristics of Shura system. Everybody in the Shura should be free to express his opinion. The Holy Prophet (Peace be Upon Him) always left the companions to speak freely and express their opinions on the matters of concern.
(IV) Rule of Majority opinion
It is also suggested that the minority should follow the opinion of majority. In Shura Uhad, the compains differed with one another and the Holy Prophet (Peace be Upon Him) followed the majority opinion.
(V) Principle of vicegerency
In Shura, that people are only vicegerents of Allah, they have no juristiction to override any provision of the Shariat.
(VI) Binding authority
Once Shura is reached on a decision. It should be enforced and it has binding authority.
Quran says:
‘Once you determine, then trust in Allah.”
8. Important Shura meetings in Islam
The following are the most important Shura’s in Islamic history
(I) Shura Iahad
At occasion of Ahad, Holy Prophet (Peace be Upon Him) was that they should fight the enemy by remaining inside the city of Madina but majority wanted the battle outside the city. Thus the opinion of majority was honoured.
(II) Shurai Badr
Shuria Badr was held by Prophet (Peace be Upon Him) to consider whether they should meet the enemy at Badr or not. The companions unanimously agreed to meet the enemy at Badr.
(III) Nomination of Hazrat Umar (R.A)
Hazrat Abu Bakr (R.A) Proposed the name of Hazrat Umar (R.A) as Caliph after him. All the members of Shura agreed and approval was given to it.
9. Comparison of Shura with parliamentary from of Govt.
The concept of Shura propounded by Islam is much earlier than the present concept of parliamentary system. According to Hamid Ullah Ansari, Islam gave the concept of parliamentary system nearly one thousand years earlier than the western concept of parliament. Following are the factors which make the shura superior to the parliamentary system.
(I) As to well
In Shura will of Allah is Supreme whereas parliamentary system the public opinion is treated supreme.
(II) Dual personality
In Shura, the members are responsible and answerable to the people and the Allah.
Where as a parliamentary system, the members are answerable only to the people.
(III) Freedom of opinion
In Shura, every member is free to give his opinion whereas in parliamentary system, the members are not as free to express their opinions as they are elected on party basis.
(IV) Jurisdiction
In Shura, the de jure jurisdiction extends to the whole world, whereas in parliamentary system, it extends to the geographical boundaries.
(V) As to religion
In Sura religion of the state is Islam. In western parliamentary from of Government religion is not so important.
(VI) As to source of law
In Sura sources are Quran and Sunnah whereas in parliamentary from of Government sources of law are man made laws.
10. Conclusion
To conclude, I can say, that the Islamic concept of Shura is the modal for the whole world. The Shura develops the Islamic concepts and theories. It is in conformity to the ethics of Ijma. The body makes the decision or legal, political matters in the light of the present social order and norms. In Pakistan’s constitutions of 1973, the parliament has been give the name of Majlis-e-Shura by virtue of Article 50 which is the true spirit of Islam

Explain the Concept of Sovereignty in Islam.

Q: Explain the Concept of Sovereignty in Islam.
Q: What is the different in the concept of sovereignty in Islam and on Westren World?
Introduction:

"God bears witness that there is no God but He! And the angels and the possessors of Knowledge___ upholding justice;there is no God but He, the inaccessible the wise."
The Holy Prophet started preaching Islam in his ancestral home Mecca. But he had to migrate from Mecca to Medina because the Meccans were not willing to accept his faith and made it difficult for him to preach his religion. The Medinans, on the other hand, accepted him as the Messenger of God invited him to Medina, and with their help and support, he founded a city-state at Medina.
THE PROPHETIC ERA:
In the person of the Holy Prophet, as Imam or Head of this new state, were combined a legislator (mujtahid), a statesman, an administrator, a judge, and a military commander. He also led the congregational prayers and was the supreme authority in matters connected with religion and Revealed Law. Therefore he had different capacities. Nevertheless, although he had the last word in political and military affairs, and as the Messenger of God (peace be upon him) was not obliged to consult others, he consulted his Companions in all matters other than those concerning revelation in accordance with the command addressed to him in the Qur’an to the effect that he should consult them in affairs and when he had taken a decision, he should put his trust in God (surah 3: verse 159). The command to the Holy Prophet (peace be upon him) in this respect is for no other purpose except to emphasise the significance and importance on the Muslims of "consultation" (shura) in managing the affairs of the state, otherwise as has been pointed out above, the Holy Prophet (peace be upon him) did not require anyone’s advice. In his personal capacity he usually accepted the advice of others and did not impose his own decision. In surah 42: verse 38 it is laid down that the Muslims should conduct their affairs by mutual consultation. The verse is descriptive of the nature of the Muslim community that is expected to conduct all its worldly affairs by mutual consultation. The Holy Prophet (peace be upon him) is reported to have said: "Difference of opinion in my community is (the manifestation of Divine) Mercy"; and: "My community would never agree on an error".1
While interpreting the verses pertaining to "consultation" a very important question arises as to whether the body to be created for this purpose is a consultative body or an advisory body. According to the Practice (Sunnah) of the Holy Prophet who always consulted a body of eminent members of the Muslim community, namely his Companions, in the conduct of the affairs of the state, it was an advisory body, and the four Rightly Guided Caliphs subsequently followed this practice. The generally accepted principle is that the person in authority must consult others but he is not bound by the advice and can overrule it. However, as it will be seen later, the Khawarij did not agree to it. According to them under the relevant Qur’anic injunction a consultative body and not a single head of the state advised by the advisory body (which advice he could over-rule) was required to conduct the affairs of the Muslim community. They maintained that after the death of the Holy Prophet (peace be upon him) there was no obligation to render obedience to a Khalifah or Imam as the Head of the State, because the Muslim community could govern itself by constituting a Consultative Assembly from amongst themselves. However if a need arose the Assembly could appoint a Head of the State for its own convenience. Be that as it may, the principle that those who command authority ought in all matters of importance consult the Muslims is undisputed.
In surah 4: verse 59 of the Qur’an, each and every Muslim is enjoined to obey God, to obey the Holy Prophet (peace be upon him) and those having authority over Muslims, who are from amongst them. From this verse four principles of Islamic political ethics have been deduced. The first principle is that since all authority in the universe vests in God, who is the Omnipotent and Omnipresent Creator of the universe, He alone must be obeyed to the exclusion of all others. God has laid down law in the Qur’an in the form of what is good and what is evil. These commands have been sent as revelation from time to time to the prophets for the guidance of mankind, the last being the Holy Prophet Muhammad (peace be upon him). God has already placed in the nature of man the knowledge of good and evil and has further clarified the distinction between good and evil in the Qur’an. It is, ethically speaking, on this basis that every Muslim is commanded to promote good and to suppress evil.
The second principle is that obedience may be rendered to man, but only under God’s command, generally speaking, in the case of the prophets, where rendering obedience is in fact to God and not to human beings. The Holy Prophet is to be obeyed because he was the last and the final one through whom the faith has been eventually perfected in the Qur’an, which for a Muslim, is the pure word of God, whereas the Sunnah (Practice) of the Holy Prophet is the authoritative exposition of the Qur’an.
In the course of the evolution of Muslim polity, the state through a special department called "H?isbah", considered it as its duty to forcibly impose on the people Islamic religio-moral obligations detailed in the Qur’an and Sunnah, besides the strict enforcement of Islamic law pertaining to certain crimes (e.g., theft, adultery, drunkenness etc.) Through the department of Justice (Qad?a). Thus the functions of the Muh?tasib (Religious Censor) included compelling the Muslims to do what was ethico-legally reputable or right (ma‘ruf) and to detect, restrain and punish what was disreputable or wrong (munkar). But as is evident from Muslim history this practice was not consistently followed. As for the contemporary Muslim nation-states, the department of "H?isbah" has ceased to exist in the traditional form in almost all such states. Similarly the specific provisions of Islamic criminal law are not being enforced in all the Muslim nation-states.
The third principle is that obedience may be rendered after God and the Holy Prophet to those who command authority over the Muslims. Theoretically, this form of obedience is subject to their acting in execution of the commands of God and the Holy Prophet. But if they are not acting as is expected of them, then, according to the interpretation advanced by eminent Sunni jurists, they must still be obeyed as God alone can punish them. The fourth principle is that obedience can only be rendered to those who command authority over the Muslims who are from amongst them, in the sense that they are themselves members of the Muslim community. Obviously these leaders of the Muslim community have to be Muslims themselves as they are expected to act, at least in theory, in execution of the commands of God and the Holy Prophet, although they can further employ or delegate their powers to non-Muslims who should likewise be obeyed. Thus generally speaking, in the Qur’an no mode of life is prescribed for a subjugated Muslim community. The mode of life which a Muslim is commanded to follow can only be followed if he is member of a politically free community. Consequently the Muslim community must strive for establishing a state of its own wherever it is possible to establish a viable state. This is one of the constitutional principles, which can be deduced from the Sunnah of the Holy Prophet, who migrated from his ancestral home Mecca to found a separate state at Medina.
A state which is managed and administered in accordance with the laws of Islam is called Dar al-Islam (Abode of Peace). Its independence has to be preserved under all circumstances and therefore its first priority must be defence. But effective defence is only possible if equality is maintained among its citizens and they are all united to help one another in defending their common territory. This is also a constitutional principle deduced from the Sunnah of the Holy Prophet as is apparent from Mithaq al-Madinah, the first written constitution of the world, which was promulgated by the Holy Prophet in the city-state of Medina.
This ancient document contains in all forty-seven articles. The first part, consisting of twenty-three articles, deals with the mutual relations, rights and duties of Muslims. It is under these articles that the Emigrants from Mecca (Muhajirin) were united with the Helpers from Medina (Ans?ar) in a fraternal bond of a Community of Faith, thus laying down the principle that according to Islam, nation-hood (Millah or Ummah) is to be founded on a common spiritual aspiration, rather than on common race, language and territory. The second part of the document, consisting of twenty four articles, is concerned with the relations of Muslims with the Jews and other non-Muslim inhabitants of Medina or the valley of Yathrib, and confirming them in their religion as well as possessions, enumerates their duties and rights. The interesting features of this part of the document are that non-Muslims are included "in" or "with" the Muslim Ummah, which implies that if nation-hood of Muslims is founded on a common spiritual aspiration, their unity with non-Muslim minorities in the state, is based on the defense of a common territory. The Muslims and non-Muslims, described as a "single community", are to help one another against whoever wars or fights against the people of Yathrib for, as stated in the document: "among them there exists sincere friendship, honourable dealing and no treachery". They are also expected to contribute or bear expenses equally so long as the war continues, and they are to collectively defend the valley of Yathrib which is described as:
"sacred for the people of this document". It is also stated therein that whenever among the people of this document there occurs any serious dispute or quarrel: "it is to be referred to God and to Muhammad, the Messenger of God (God bless and preserve him). God is the most scrupulous and truest Fulfiller of what is contained in this document". 2
It may be pointed out here that if a Muslim state (Dar al-Islam) is conquered or subjugated by a non-Muslim power, it will be transformed into an Abode of War (Dar-al-H?arb), and theoretically the Muslims therein shall be left with two alternatives: either to conduct militant struggle (jihad) in order to regain their independent status or to migrate (hijrah) to some Muslim country. It was to avoid this possibility that the Holy Prophet laid full emphasis on the defence of Medina. Hence it is evident that the Muslim concepts of patriotism and nationalism are not solely based on an attachment to a particular land or territory but these are founded on an attachment to the ideals and aspirations which have been realised or are being realised or may be realised through institutions established in such land or territory, and that land or territory is "sacred" only in this context.
The Holy Prophet had founded a confederal state as the non-Muslim tribes governed themselves in accordance with their own laws and were fully autonomous in their own regions. It was only in accordance with the terms of Mithaq al-Medinah that they were one with the Muslim community. The Holy Prophet as the Head of the first Muslim state, was indeed concerned with the formation and maintenance of unity among the Muslim community (Millah/Ummah) and its governance in accordance with Islamic law (Shari‘ah). But, generally speaking, since the broad principles of law had already been laid down by God in the Qur’an, the Holy Prophet as the chief executive authority, interpreted those laws and implemented them, thus laying down the constitutional principle that in the sphere of legislation, the Head of the State has to be a Mujtahid (one who himself exerts to interpret law) and not a Muqallid (one who follows interpretations of others). The basis of this principle is the Qur’anic verse: "And to those who exert We show Our paths". (surah 29: verse 69).
The principle is further illustrated in the light of a Tradition of the Holy Prophet. At the appointment of Ma’adh as the governor of Yemen, the Holy Prophet is reported to have asked him as to how he would decide matters coming up before him. Ma’adh replied: "I will judge matters according to the Book of God". "But if the Book of God does not contain anything to guide you?" "Then I will act in accordance with the precedents of the Prophet of God". "But if the precedents also fail?" "Then I will exert to form my own opinion".
From this principle one inference can clearly be drawn: that the worldly affairs (Mu‘amalat), as distinguished from the religious obligations (‘Ibadat), being subject to the law of change, such situations are bound to arise where the Qur’an and the Sunnah may not provide sufficient guidance, and the Muslims would be expected to exert to advance their own solutions in interpreting Islamic law and implementing it in accordance with the needs or requirements of their respective times. In other words through "Ijtihad" a mechanism is provided within the polity in order tomake the Shari‘ah mobile and to proceed along with the community rather than becoming static or lagging behind. The other inference which can be drawn is that the Judiciary (Qad?a) is to be separated from the Executive. Because according to the Qur’anic injunction laid down in surah 4: verse 59 if any dispute arises between the citizens or as against the state, the matter is to be referred to the Judiciary for adjudication in accordance with the Book of God and precedents of the Holy Prophet, and the judgement of the court is binding on the disputing parties.
Next in importance from the constitutional standpoint is the document called the Treaty of Al-H?udaybiya, which was made between the Holy Prophet as Head of the State of Medina and Suhayl bin ‘Amr, the representative of the pagans of Mecca. The treaty was a pact of non-aggression for ten years between the Muslims and the Quraysh. Apart from the stipulations in the agreement, which were favourable to the long-term strategy of the Holy Prophet, it is interesting to note the manner in which the treaty was recorded. According to the version provided by the historians, the Holy Prophet asked ‘Ali to write the treaty with the opening: "In the name of Allah, the Beneficent, the Merciful". But the representative of the Meccans objected asserting that the Quraysh would not approve of the words "the Beneficent, the Merciful", and that the treaty should commence with the pagan invocation: "In Thy name, O Lord". Thereupon the Holy Prophet directed ‘Ali to write the words as desired by the representative of the Meccans. Then the Holy Prophet told ‘Ali to write: "This is the treaty which Muhammad, the Messenger of God made with Suhayl bin ‘Amr....". But Suhayl bin ‘Amr again interrupted and asking ‘Ali to withhold his pen, addressed the Holy Prophet thus: "If we had accepted you as the Messenger of God, there would have been no war between us. Therefore, let only your name and parentage be written". Accordingly under the direction of the Holy Prophet and despite the protests of Abu Bakr, ‘‘Umar and ‘Ali, ‘Ali reluctantly wrote: "This is the treaty which Muh?ammad bin ‘Abdullah made with Suhayl bin ‘Amr".3
The contents of the treaty as well as the manner in which it was recorded indicate that it is an embodiment of the political sagacity, far-sightedness and pragmatic approach of the Holy Prophet as a statesman. According to Montgomery Watt, it was motivated by supreme importance of the Holy Prophet’s belief "in the message of the Qur’an, his belief in the future of Islam as a religious and political system, and his unflinching devotion to the task to which, as he believed, God had called him".4 The treaty raises some very important constitutional questions. These are: Was the act of forsaking his designation as the Prophet of God (despite having been so appointed by God), a sovereign act on the part of the Holy Prophet as the Head of the State, performed in the interest of the state or the community, and as such was neither repugnant to nor in conflict with the overall sovereignty of God or supremacy of His Law? The next question is: If the act was sovereign, then would it be correct to say that the overall sovereignty of God does not impose any restrictions on the sovereignty of the state or the Head of the State as legislator (Mujtahid) so long as the action taken, functions performed or laws of God interpreted are in the interest of the state or the community?In surah 38; verse 27 of the Qur’an while appointing David as a "Khalifah" (Vicegerent) in the land, God commanded unto him: "Verily We have made thee a Khalifah in the land; then judge between men with truth, and follow not thy desires lest they cause thee to err from the Path of God." It is therefore evident from this verse that God lays emphasis mainly on the adoption of a course of justice, honesty and truthfulness on the part of the Head of the State for this, generally speaking, leads to the Path of God; and not to allow his personal interest to influence his official conduct or decisions.
The traditional Fiqh (Islamic jurisprudence) acknowledges the powers of the Head of the State as legislator to suspend (Ta‘wiq) a Qur’anic rule of law, or to restrict (Tah?did) or to expand (Tawsi‘) its application if the conditions so demand or the interests of the state or the community so require. The exercise of these powers constitutes "sovereign act" (as distinguished from Ijtihad) on the part of the Head of the State. If this is the position then the overall sovereignty of God or the supremacy of His Law does not interfere with or impose any limitations on the sovereignty of the state or the powers of the legislator (Mujtahid) to implement that interpretation of the Qur’anic rule of law which suits the requirements of the state or the community. Therefore it may not be correct to assert that the state in Islam is not fully sovereign or that the legislator (Mujtahid) can only exercise his powers in a restricted manner.
Theoretically a Muslim state acknowledges the supremacy of God’s Law, but as for its interpretation and implementation, the legislator’s supremacy cannot be doubted when his act is sovereign or he exercises his power of discretion by accepting/advancing a specific interpretation with due regard to the interests of the state and the community. Besides that he is entirely free in the sphere of making "man-made" laws and implementing them in accordance with the requirements of the state or in order to benefit the community, so long as these laws are technically not considered repugnant to the injunctions of Islam, or the Qur’an and Sunnah are indifferent towards them. A wider interpretation of the Qur’anic doctrine of "necessity" (Id?t?irar) is also available to the legislator where under what is forbidden (h?aram) becomes lawful (h?alal). The advancement of the theory during 661 A.D. that the Caliphate and Prophethood must not be permitted to remain within the same family established that spirituality was not relevant for the administration of the state. On this basis there is some justification in the claim that the state in Islam is not a theocracy. If the elimination of spirituality had led to the emergence of the "power" state (mulk) in Islam, it was argued that it did not matter for a "power" state was perfectly competent to enforce the Shari‘ah.
Every enlightened Muslim is aware that from 661 A. D. onwards the republic in Islam was transformed into a monarchy due to the apprehension, as it was claimed, of the breaking out of a civil war among the Muslims. A vital change had taken place in the foundational principle of Muslim polity, yet only passive or ineffective voices were raised by Sunni jurists against the new political order on the ground that it amounted to subversion of the political system evolved through the Practice (Sunnah) of the Rightly Guided Caliphs. On the basis of this precedent one can say that if there is a threat to the Muslim community of its destruction from within, and under that threat, the persons in authority in the state completely alter the ideology of its traditional constitutional structure, they would be justified to do so under the Shari‘ah.
Finally the Sermons on the Mount ‘Arafat (Khut?bah al-Wida‘) delivered by the Holy Prophet during the Pilgrimage of Farewell in the tenth year of the Hijrah, have also to be considered for deducing an extremely important constitutional principle as these amounted to an illustration of human rights from the Islamic viewpoint. It was for the first time in the history of mankind that in the light of the Qur’anic injunctions some of the human rights were enumerated and guaranteed by the Holy Prophet. Thus life and property were made inviolable, drawing of "riba" (usury) on money loaned was prohibited, vendetta as practiced in pagan days was to be left unevenged, no Arab was to have any privilege over non-Arab except that based on piety, Muslims were to consider themselves as brethren and it was not lawful for a Muslim to take from the belongings of his brother except that which he parted with willingly, the rights of the spouses were protected etc.
It may be pointed out at this stage that foundations of the Secretariat of the Chief executive authority were laid by the Holy Prophet himself. Scribes were appointed who drew up the state documents, and the only privilege which the Holy Prophet had as Head of the State was that his seal conferred legitimacy to all official documents.
To sum up, some of the important constitutional principles that can be derived from the Sunnah (Practice) of the Holy Prophet are:
First; that the ultimate sovereignty vests in God. But the vesting of overall sovereignty in God or supremacy of His Law does not in any sense mean that the state has restricted sovereignty or is not fully sovereign in conducting its worldly affairs (Mu‘amalat) particularly when a supra-legal action taken by the Head of the State is in the interest of the community or the state.
Second; that since the Muslims are expected to be governed under their own specific legal system called the Shari‘ah in all spiritual and temporal matters, they must aspire to establish a state of their own wherever it is possible to create a viable state.
Third; that the nation-hood of Muslims is to be founded on a common spiritual aspiration and that commonness of race, language and territory is a secondary consideration.
Fourth; that the non-Muslim citizens of the state (not of conquered territories who were considered as "protected people") are to be confirmed in their religion and possessions. Their national unity with the Muslims is to be based on sincere friendship, honourable dealing, mutual respect and the defence of common territory.
Fifth; that the Muslims and non-Muslims are jointly/collectively expected to defend the territories of the state, and to bear expenses of the same.
Sixth; that to frame and implement a written constitution for the state and to strictly adhere to its terms is a Sunnah (Practice) of the Holy Prophet.
Seventh; that the grant of a constitution is not the task of a single individual but a collective act of the representatives of the federating tribes who are voluntary signatories of the socio-political contract. The constitution not being sacrosanct has no spiritual or religious significance but essentially a contract.
Eighth; that through the peaceful co-existence of different religions, races and communities the ideal of human unity (al-Ummah al-Wah?idah) is to be realised.
Ninth; that the importance of "consultation" (shuro) in conducting the worldly affairs of the state has to be emphasised, although the Head of the State is not bound by any advice.
Tenth; that respecting interpretation of the Shari‘ah and its implementation, the Chief executive authority in the state is expected to act as a "Mujtahid " rather than a "Muqallid ". Thus "Ijtihad " by the law-maker is a continuous and unending process.
Eleventh; that the Executive is to implement, execute and enforce the Shari‘ah as interpreted by the Chief executive authority, and the Chief executive authority while making laws is expected to have a pragmatic approach, to act with political sagacity, and far-sightedness so far as the interests of the state and citizens are concerned.
Twelfth; that human rights as enumerated in the Qur’an and the Sunnah (Practice) of the Holy Prophet have to be guaranteed and enforced in the state.
Thirteenth, that "Zakat " or other similar taxes imposed through Islamic welfare laws be meticulously collected by the state officials and disbursed among the needy citizens under the supervision of the state.
Fourteenth; that the Judiciary (Qad?a’) is to be separated from the Executive so that it can decide matters before it independently and without being influenced by the Executive.
Fifteenth; that the Muslims’ primary obligation is that they should, after God and the Holy Prophet, render obedience to those who command authority from amongst them so that order is maintained in the state.
The era of the Holy Prophet as Head of the city-state of Medina has always been considered as a model in the sense that a Muslim state had been founded and was being managed and governed by the Prophet- Imam himself. This dispensation was unique in the history of Muslims and was never to be repeated. Philosophically speaking, it was an ideal or a perfect state in the sense that the Ruler was in direct communion with God. The Holy Prophet was Head of the State in the tradition of the earlier Semitic prophet-kings mentioned in the Qur’an. But although the foundations of the state had been laid and it was being headed by the Prophet- Imam, the state itself was in the process of becoming or developing and was therefore endeavouring to realise the objectives for which it had been created. In other words, on the spiritual or religious side (‘Ibadat) Islam had been perfected, but on the mundane or worldly side (Mu‘amalat) the state in Islam was not a finished product, as the community was to keep on developing under a legal order. This development was to be accomplished through a continuous process of "Ijtihad".
THE RESULT OF DEMOCRATIZATION:The Holy Prophet died in 632 A.D. and the question of a successor (Khalifah) arose on his death because, pragmatically speaking, a young socio-political organism like the early Muslim state required a directing head. Therefore originally the "Khilafah" as an institution came into being because the conditions had so demanded. The possibility cannot be ruled out that it came into being on the basis of Consensus of the Companions (Ijma‘) in response to the demand of times.
Did the Holy Prophet nominate or appoint any successor? Some of the Sunni jurists argue that since the Holy Prophet, shortly before his death, had directed Abu Bakr to lead the congregational prayers, this indicated that he desired Abu Bakr to be appointed as his successor. On the other hand according to the Shi‘ite jurists, he had appointed ‘Ali as his successor. In this connection reliance is placed on a Tradition whereunder the Holy Prophet is reported to have said that those who consider him as their "Mawla" (master/leader), they should also regard ‘Ali as their Mawla". However, Jalal al-din Suyyut?i on the authority of H?udayfah has pointed out that some of the Companions of the Holy Prophet asked him as to whether or not he would appoint a successor unto them. The Holy Prophet is reported to have replied that if he did appoint such a successor over them and that if they were to rebel against the successor appointed by him, then punishment could come upon them. He also states on the authority of Imam Bukhari, Imam Muslim, Beyhaqi, and Imam Ah?mad that Caliphs ‘Umar and ‘Ali had confirmed before their deaths that the Holy Prophet did not appoint any successor.5
It is evident that had the Holy Prophet in fact nominated a successor or prescribed a specific method for such appointment, then that mode alone would have become the only way of appointing the Head of the State, and a restrictive stipulation of this nature would have caused difficulty in the further evolution of Muslim polity. Therefore the Holy Prophet by not appointing his successor or suggesting any specific mode or laying down any framework for constituting or deposing such a successor, had acted in conformity with the Qur’an which is silent on this issue. It may further be pointed out that the political system in Islam is one of such matters that falls in the category of "Mu‘amalat" (worldly affairs) which being evolutionary are subject to the law of change. Therefore the political system in itself has no spiritual or religious significance.
In surah 4: verse 58 Muslims are commanded by God to hand over their trusts to competent persons. In other words the Qur’an has ordained that only competent person/persons be appointed for managing the affairs of the Muslim community, though this is even logically the obligation of those who are expected to make such appointments. The Qur’an is mainly concerned with matters relating to right and wrong or good and evil, and is not concerned with matters relating to planning (tadbir). That the best person or persons are to be appointed is a matter relating to right and wrong. But the question as to how the appointment is to be made or whether a particular process employed for determination of the best person will succeed or not, involves planning and is a matter relating to efficiency and wisdom in the light of prevailing conditions. Therefore the silence of the Holy Prophet in the matters of nomination or appointment of any successor after him or laying down any rule for constituting or deposing the successor, was deliberate because such structures were to be evolved in the light of the good sense of the community. These were not meant to be permanent but were subject to the changing requirements of the Muslim community from time to time. Thus the real object of Islam is to establish a Community of Faith governed under the Shari‘ah. Although for the continuous interpretation and enforcement of the Shari‘ah the establishment of a state or a political system is necessary, the Muslim community is at liberty to determine any mode of constitutional structure which suits its requirements.
The word "Khalifah" is derived from "Khalafa"(kh.l.f ) which means to succeed, to be followed or to leave behind. That is the reason why some Muslim jurists argue that Khalifah can only be that of the Holy Prophet who was mortal, as only mortals leave successors behind. However, the term "Khalifah" also occurs in the Qur’an, although there is no indication which directly connects it with the political implications of the term i.e., the Head of the State in Islam. In surah 38: verse 27 God appointed David as a "Khalifah" in his land. In surah 6: verse 166 it is stated:"It is He (God) who has made you "Khulafa’ " (plural of Khalifah) on the Earth, and He raises some of you above others by (various) grades in order that He may test you by His gifts". But in the Qur’anic sense probably the word is to be interpreted as man being vicegerent of God.
The word "Imam" also occurs in the Qur’an and implies a leader in a general or comprehensive sense i.e., leader of the believers or of the infidels. God’s prophets are sometime addressed as Imam s in the Qur’an; at other times the term appears to mean an example, a model, or a revealed book.
Respecting the practice of the Holy Prophet in this context, the chroniclers record that whenever he left Medina for some duration of time, he appointed a deputy to look into the affairs of the town in his absence.6 But although the appointment of a deputy was the practice of the Holy Prophet, he did not appoint a successor on his death. Nevertheless there is a Tradition attributed to the Holy Prophet in which he is reported to have said:" Leaders shall be from the Quraysh".7 Dr. H?amidullah remarks that the context of this direction is not known as the Sunnah (Practice) of the Holy Prophet himself does not seem to confirm the obligatory character of this qualification. He points out that the Holy Prophet left Medina at least twenty five times for one reason or the other. On all such occasions he nominated a successor in Medina, yet it was not the same person that he chose always for carrying on the interim government. Among these successors (called Khalifah) were Medinans, Qurayshites, Kinanites and others; there was even a blind person.8
During the period of the four Rightly Guided Caliphs (632 to 661 AD) different modes were adopted for the appointment of the Head of the State and in all the cases the appointment was confirmed by the Muslim community through its consent which was formally obtained by means of "bay‘ah". Generally speaking, the methods adopted during this period had a common feature i.e., the selection of the best person through initial election, nomination, or election through an Electoral College, in most cases followed by a private bay‘ah, and subsequently the appointment being confirmed through a public bay‘ah. The course adopted in all the cases was democratic, and the majority principle, although not specifically disapproved, was not followed, as the need did not arise.
Ibn Ish?aq in his biography of the Holy Prophet, provides an accurate account as to how the first successor of the Holy Prophet, namely Abu Bakr, was elected. He states that on the death of the Holy Prophet, three distinct political groups were formed among the Muslims of Medina, namely, Muhajirin (Immigrants), Ans?ar (Helpers) and Banu Hashim (the supporters of the family of the Holy Prophet). The Muhajirin were led by Abu Bakr and ‘Umar, the Ans?ar supported Sa‘d bin ‘Ubaydah, whereas Banu Hashim were solidly behind ‘Ali.
While ‘Ali and other members of the family of the Holy Prophet were busy in making arrangements for his funeral (according to ñabari9, the Holy Prophet was buried on the day after his death), news arrived that the Ans?ar were assembling in the Hall of Banu Sa‘adah in order to elect Sa‘d bin ‘Ubaydah as the Head of the State. On hearing this ‘Umar and Abu Bakr along with some other Muhajirin rushed to attend the proceedings.
The claim of the Ans?ar for power was advanced on the ground that they constituted the bulk of the armed forces of Islam and they even suggested divisibility of the government in the alternative. Proposals like joint rule with two Caliphs operating simultaneously or alternate succession, one from the Muhajirin and the other from the Ans?ar, were considered.10 The Muhajirin opposed such suggestions, stood for the unity of the Muslim community and advanced their claim on the ground that the Arabs as a whole would only accept leadership from the tribe of Quraysh. Although ‘Ali did not attend this session, the claim of Banu Hashim was based on their close connections with the family of the Holy Prophet. A political debate took place between the groups assembled in the Hall of Banu Sa‘adah. Eventually, ‘Umar proposed the name of Abu Bakr as the Head of the State when he asked him to extend his hand and Abu Bakr, a candidate for succession, accepting such recommendation held out his hand. Thereafter following ‘Umar, the Muhajirin as well as the Ans?ar who were present there swore allegiance to him by way of bay‘ah. Subsequently, this private bay‘ah was followed by a public bay‘ah.11 Thus he was accepted as Khalifah by the Muhajirin and the Ans?ar. (According to ñabari12, ‘Ali and other members of Banu Hashim swore allegiance to Caliph Abu Bakr sometime after his public bay‘ah).
Caliph Abu Bakr’s speech, after the multitude had sworn allegiance to him, is significant. He proclaimed: " I am not the best among you; I need all your advice and all your help. If I do well, support me; if I mistake, counsel me. To tell truth to a person commissioned to rule is faithful allegiance; to conceal it is treason. In my sight, the powerful and the weak are alike; and to both I wish to render justice. As I obey God and His Prophet, obey me: if I neglect the laws of God and the Prophet, I have no more right to your obedience"13
The second Khalifah namely ‘Umar, was nominated by Caliph Abu Bakr. But since nomination had no legal precedent, it was merely a recommendation. However, the Muslim community reposed confidence in Caliph Abu Bakr; therefore his recommendation was accepted through the subsequent referendum when the nomination of ‘Umar was put to public at large and it was confirmed by a general bay‘ah.
Caliph ‘Umar was assassinated. But before his death, he constituted an Electoral College of the probable candidates in order to select one from amongst them for being put up as the sole candidate for succession. A council of six was formed consisting of ‘Ali, Uthman, ‘Abdur Rah?man, Sa‘d, Zubayr and ñalh?ah. (Qad?i Sulaiman Mans?urpuri in his Rah?matu ’l-lil-‘Alamin, vol. 2 p. 105 states that the name of the sister of the father of the Holy Prophet, Umm H?akim Bayd?a’ was also included in the Electoral College). Caliph ‘Umar appointed his own son ‘Abdullah to give a casting vote in case there was an equal division, but ‘Abdullah was specifically excluded from standing as a candidate for succession. The council through a process of elimination deputed ‘Abdur Rah?man to make a recommendation as to who out of ‘Ali and Uthman should be the sole candidate. ‘Abdur Rah?man is said to have consulted as many people as he could in Medina including women as well as students and those who had come from outside or happened to be present in Medina as way-farers and majority of them expressed their view in favour of Uthman. Then ‘Abdur Rah?man even questioned ‘Ali and Uthman about the manner in which they would conduct themselves if any of them was selected as the successor. Eventually ‘Abdur Rah?man supported Uthman and finally Uthman was selected as the sole candidate. Later the rest of the Muslim community swore allegiance to him in the form of a public bay‘ah.
Caliph Uthman’s era developed its own complications when the Muslim settlers in Egypt, Kufa and Basra complained against the administrators appointed by him. They alleged that their grievances were not redressed, they demonstrated and turned into insurgents, demanding resignation of Caliph Uthman from his office. There was no garrison deputed in Medina for the protection of the Caliph. Army assistance from outside was sought, but it did not arrive in time. The insurgents stormed the house of Caliph Uthman and brutally murdered the old Caliph.14
After the assassination of Caliph Uthman some eminent members of the Muslim community in Medina gathered in front of the house of ‘Ali and requested him to agree to become the Khalifah. The uncle of the Holy Prophet ‘Abbas supported him as the sole candidate. But ‘Ali refused to accept a private bay‘ah and insisted that if the Muslim community wanted to swear allegiance to him as the Head of the State, it should be openly done in the Mosque of the Holy Prophet. This was accordingly done.15
The times of Caliph ‘Ali were even more turbulent than those of Caliph Uthman. First, Mu‘awiyah refrained from swearing allegiance to him; and second, Zubayr and ñalh?ah, two eminent Companions of the Holy Prophet, left Medina for Mecca in order to persuade ‘A’ishah, the Holy Prophet’s very respected widow, to join them for demanding "Qis?as?" of Caliph Uthman’s murder from Caliph ‘Ali. Their reasoning was that the culprits were identified and therefore action should be taken against them. The problem as explained by ñabari 16 was that there were conflicting opinions regarding this matter and even the then living Companions of the Holy Prophet were divided. It was therefore not easy for Caliph ‘Ali to punish the alleged culprits. Caliph ‘Ali while summing up the situation could not help lamenting that the conditions which prevailed in his times were identical to those of the days of "Ignorance".17
The issue resulted into the Battles of the Camel (Jamal) and of Siffin in which many Muslims lost their lives at the hands of one another including the Companions of the Holy Prophet. According to ñabari ten thousand Muslims were killed on both sides in the Battle of the Camel alone.18 After the unsuccessful arbitration between Caliph ‘Ali and Mu‘awiyah, some of the supporters of Caliph ‘Ali who had earlier insisted on him to submit to arbitration, now turned against him maintaining that when he had already been elected as Khalifah by the people of Medina then he should not have conceded to refer this decided matter to arbitration. They formed a separate group of their own called "Ahl al-Sunnah wa ’l-‘Adl" (Khawaraj) and rebelled against Caliph ‘Ali. Just as Caliph ‘Ali was waging war against Mu‘awiyah, he had also to fight against the Khawaraj. Eventually Caliph ‘Ali was assassinated by a Kharijite while he was proceeding to offer prayers in the mosque at Kufa.
From this brief survey it is evident that during the period of the Rightly Guided Caliphs, different modes were adopted for the appointment of the Head of the State. These modes were neither mentioned in the Qur’an nor recommended by the Sunnah (Practice) of the Holy Prophet. It may further be added that at no stage the parties involved used the Qur’an and the Tradition in support of their individual political claims. The modes adopted were founded purely on the Sunnah (Practice) of the Rightly Guided Caliphs. The candidate for the Caliphate was selected through an initial election by a restricted number of eminent persons, or by nomination, or through a small electoral college, and thereafter, the approval of the general public was obtained in the form of an acquiescence and by way of bay‘ah. Women were not debarred from registering their consent. Furthermore, the hereditary rule, although known to the Arabs, was specifically excluded in the case of succession.
The Head of the State was considered successor of the Holy Prophet (Khalifah), the interpreter and promulgator of Islamic law (Imam/Mujtahid), the leader of the congregational prayers, the defender of the religion of Islam, the guardian of the Muslim community, the judge, the moral censor (Muh?tasib), the administrator, the statesman, and the military commander (Amir al-Mu’minin).
It has already been mentioned that in the times of the Holy Prophet there was only one acknowledged privilege of the Head of the State i.e., all the state documents were expected to bear his seal. The seal of the Holy Prophet was used by the succeeding Caliphs until the times of Caliph Uthman, when it fell into a well and was lost. However an identical seal was got prepared and was used for the same purpose. During the period of the Rightly Guided Caliphs, particularly in the turbulent days of Caliph ‘Ali, the fourth Khalifah, a second privilege was introduced and that was if the Head of the State himself was not leading the congregational prayers, then the leader of the public worship mentioned his name in the Sermon (Khut?bah) and prayed for him.
It may be useful at this stage to briefly consider some of the views about the institution of Caliphate, advanced during this period. The Shi‘ites restrict the Khilafah exclusively to the House of ‘Ali. They reject the formula of election and hold that the leadership of Muslim community is an issue of such vital importance that the Holy Prophet could have not died without appointing someone as the Imam. They maintain that the Holy Prophet had no male issue to succeed him; therefore, he appointed his son-in-law ‘Ali as Imam, and his descendants are to hold the office of Imamate as of right. The Shi‘ites consider the appointment of the Caliphs who preceded ‘Ali as illegal and regard Caliph ‘Ali as the first Imam. According to this view each Imam (the descendant of Caliph ‘Ali and Fat?imah, the Holy Prophet’s daughter) possesses super-human powers and is in constant touch with God. Thus the nature of Imam’s authority is spiritual in essence.
The Kharijite (the term denotes "one who leaves his home among the unbelievers for God’s sake"; it also implies secession (i.e. Khuruj from the Muslim community) theory is the extreme opposite to that of the Shi‘ites. The Kharijites represent the left wing of Muslim political opinion and in modern terminology may be considered as strict social democrats. They require only moral qualifications in a Khalifah, and restrict his authority by retaining the right to depose him if he is found unfit to hold his office. The Kharijites maintain that the Khalifah should be appointed with the agreement of the entire Muslim community. Accordingly they reject the doctrine of the restriction of the Khilafah to the House of ‘Ali, or to the tribe of Quraysh. They insist on a free election, and hold that even a non-Arab or a slave is eligible for the office of the Khilafah provided that he is a Muslim of upright character and takes the responsibility of performing the duties assigned to his office. Some of them maintain that even a woman could be appointed Khalifah, the others among them reject the doctrine of the necessity of Khalifah’s appointment, and argue that since it is nowhere specifically mentioned by God (i.e., it is only recommended but not obligatory), the Muslim community could rule itself by constituting a legitimate Consultative Assembly and at the same time, fulfil their religious obligations. Nevertheless, if the conditions so demanded, a Khalifah could be elected.19
During this period the Executive was properly consolidated. Caliph ‘Umar, in particular, encouraged the establishment of different departments of Central Secretariat in the form of Diwans on the Persian model. In these departments secretaries and clerks were employed in order to assist the Chief executive authority in managing the affairs of the state. The department of moral censorship (H?isbah) was also organised to enforce the Rights of God (H?uquq Allah), the Rights of Human Beings (H?uquq al-‘ibad), and the Rights which were common to both God and Human Beings (H?uquq bayn Allah wa’l-‘ibad).Broadly speaking, the Rights of God were the holding of congregational prayers, the observance of fasts in the month of Ramad?an, the payment of Zakah etc. The wrongs that infringed the Rights of Human Beings included unlawful transactions, usury, false and defective scales, weights and measures, non-payment of debt etc. The Rights which were common to both God and Human Beings were violated when, for instance, a divorced woman or a widow remarried without observing ‘Iddah (a period of time to ascertain pregnancy); or when the leader of public worship lengthened the prayers unnecessarily so that the weak and old failed to stand it or people were hindered or delayed from performing other jobs; or when a judge made the people wait before holding his court etc.
It is interesting to note that besides H?uquq al-‘ibad as briefly defined above, "Human Rights" as we understand them today, were clearly laid down in the Qur’an and the Practice (Sunnah) of the Holy Prophet. The citizens were familiar with them and these were meticulously enforced during this phase of the seventh century republican Muslim State. Following are the basic human rights which can be directly traced from the Qur’an and the Sunnah (Practice) of the Holy Prophet:



Equality of all citizens before law as well as equality of status and opportunity. "O mankind! Be careful of your duty to your Lord Who created you from a single soul and from it created its mate and spread from these two many men and women". (surah 4: verse 1)."Lo! Pharaoh exalted himself in the earth and divided its people into castes. A group among them he oppressed, killing their sons and sparing their women. Lo! He was of those who work corruption". (surah 28: verse 4).
Freedom of religion. "There is no compulsion in the matter of religion". (surah 2: verse 256)."And if thy Lord had pleased, all those who are in the earth would have believed all of them. Wilt thou (Muhammad) then force men till they are believers?" (surah 10: verse 100). "Had God willed, idolaters had not been idolatrous. We have not set thee (Muhammad) as a keeper over them, nor art thou responsible for them". (surah 6: verse 108)."For each of you We have appointed a law and a way. And if God had willed He would have made you one (religious) community. But (He hath willed it otherwise) that He may put you to the test in what He has given you. So compete with one another in good works. Unto God will ye be brought back, and He will inform you about that wherein ye differed." (surah 5: verse 48). "If God had not raised a group (Muslims) to ward off the others from aggression, churches, synagogues, oratories and mosques where God is worshipped most, would have been destroyed". (surah 22: verse 40). "Unto you your religion and unto me my religion". (surah 109: verse 6).
Right to life. "And slay not the life which God hath forbidden save for justice". (surah 17: verse 33).
Right to property. "And eat not up your property among yourselves in vanity, nor seek by it to gain the hearing of the judges that ye may knowingly devour a portion of the property of others wrongfully". (surah 2: verse 188).
No one is to suffer from the wrongs of another. "Each soul earneth on its own account, nor doth any laden bear another’s load". (surah 6: verse 165)."That no laden one shall bear the burden of another". (surah 53: verse 38).
Freedom of person. Inferred from the practice of the Holy Prophet, by Imam Khat?t?abi and Imam Abu Yusuf: A Tradition is reported by Abu Da’ud to the effect that some persons were arrested on suspicion in Medina in the times of the Holy Prophet. A Companion inquired as to why and on what grounds had these persons been arrested. The Holy Prophet maintained silence while the question was repeated twice, thus giving an opportunity to the prosecutor, who was present there, to explain the position. When the question was put for the third time and it again failed to elicit a reply from the prosecutor, the Holy Prophet ordered that those persons should be released. On the basis of this Tradition Imam Khat?t?abi argues in his Ma‘alim al-Sunan that Islam recognises only two kinds of detention: (a) under the orders of the court, and (b) for the purposes of investigation. There is no other ground on which a person could be deprived of his freedom. Imam Abu Yusuf maintains in his Kitab al-Khiraj, on the authority of the same Tradition that no one can be imprisoned on false or unproved charges. Caliph ‘Umar is quoted in Imam Malik’s Muwat?t?a as having said that in Islam no one can be imprisoned without due course of justice.
Freedom of opinion. "God loveth not the utterance of harsh speech save by one who hath been wronged". (surah 4: verse 148). "Those of the children of Israel who went astray were cursed by the tongue of David, and of Jesus son of Mary. That was because they rebelled and used to transgress". "They restrained not one another from the wickedness they did. Verily evil was that they used to do". (surah 5: verses 78-79)."And when they forgot that whereof they had been reminded. We rescued those who forbade wrong, and visited those who did wrong with dreadful punishment because they were evil-livers". (surah 7: verse 165). "You are the best community that hath been raised up for mankind. Ye enjoin right and forbid wrong". (surah 3: verse 110).
Freedom of movement. "It is He Who has made the earth manageable for you, so travel ye through its tracts and enjoy of the sustenance which He furnishes; but unto Him is the Resurrection". (surah 67: verse 15).
Freedom of association. "And let there be formed of you a community inviting to good, urging what is reputable and restraining from what is disreputable". (surah 3: verse 104).
Right of privacy. "It is not proper that ye enter houses through the backs thereof...So enter houses by the doors thereof". (surah 2: verse 189) "O ye who believe! Enter not houses other than your own without first announcing your presence and invoking peace (salam) upon the folk thereof. That is better for you, that ye may be heedful". "And if you find no one therein, still enter not until permission hath been given. And if it be said unto you: Go away again, then go away, for it is purer for you. God knoweth what ye do". (surah 24: verses 27-28)."And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother? Ye abhor that so abhor the other!" (surah 49: verse 12).
Right to secure basic necessities of life. "And let not those who hoard up that which God has bestowed upon them of His bounty think that it is better for them. Nay, it is worst for them. That which they hoard will be their halter on the Day of Resurrection". (surah 3: verse 180). "And in the wealth of the haves there is due share of the have-nots". (surah 51: verse 19).
Right to reputation. "Neither defame one another, nor insult one another by nicknames. Bad is the name of lewdness after faith". "O ye who believe! Shun much suspicion; for lo! some suspicion is a crime". (surah 49: verses 11-12). "And those who malign believing men and believing women undeservedly, they bear the guilt of slander and manifest sin". (surah 33: verse 58).
Right to a hearing. Inferred from the Sunnah (Practice) of the Holy Prophet who, sending ‘Ali to the Yemen gave him the following direction: "You are not to take decision unless you have heard the second party in the same way as you have heard the first".
Right to decision in accordance with proper judicial procedure. "O ye who believe! if an evil-liver bring you news, verify it, lest you smite some folk in ignorance and afterward repent of what ye did".(surah 49: verse 6). "O man, follow not that whereof thou hast no knowledge". (surah 17: verse 36). "Lo! God commandeth you that ye restore deposits to their owners, and, if ye judge between mankind, that ye judge justly". (surah 4: verse 58).
The extent to which the citizens were aware of human rights laid down in the Qur’an, can be cited by an example. It is stated that one night Caliph ‘Umar, while crossing a street in Medina, heard the sound of debauchery of a drunkard coming from inside a house. Losing his temper, he attempted to enter the house. But no one answered his knock or opened the door. Still annoyed, he climbed on the roof, and from it shouted down to the owner in his courtyard thus: "Why are you breaking the law by permitting such an abusive drunkard in your house"? The owner replied: "No Muslim has the right to speak like that to another Muslim. May be I have committed one violation, but see how many you have committed. For instance: (1) spying, despite God’s command - "Thou shalt not spy" (surah 49: verse 12); (2) breaking and entering - you came in over the roof, despite God’s order: "Enter houses by the door" (surah 2: verse 189); (3) entering without the owner’s permission - in defiance of God’s command, "Enter no house without the owner’s permission" (surah 24: verse 28); (4) omitting the Salaam - though God orders, "Enter not houses without first announcing your presence and invoking peace (salam) on those within" (surah 24: verse 27). Feeling embarrassed, Caliph ‘Umar said: "All right, I forgive your violation of Law". The owner of the house retorted: "That is your fifth violation. You claim to be the executor of Islam’s commandments, then how can you say that you forgive what God has condemned as a crime"?
Everyone was free to express his own opinion concerning the execution of Islamic injunctions about human rights and even the Caliph was accountable for his conduct and actions. Sometimes the attitude of the citizens towards the Caliph was uncouth and aggressive, and at other times it was improper and insulting; nevertheless it was tolerated. On numerous occasions Caliph ‘Umar had to face such situations and to provide explanations. Caliph Uthman was eventually assassinated since he could not satisfy his critics. On one occasion Caliph ‘Ali was delivering Sermon (Khut?bah) in the Mosque of Kufa when some Kharijites interrupted him with insulting language. The companions of Caliph ‘Ali urged him to punish them or at least to expel them from the Mosque. But Caliph ‘Ali declined to take such action on the ground that the Muslims’ right of freedom of speech must not be imperilled.20
Although the Caliph could over-rule the advice of the Council (Shura), during this period, it played a very vital part in the management of the affairs of the state. According to Shibli, whenever an important matter came up, the Council was summoned and no decision was taken without consultation. Some decisions were taken on the basis of majority opinion. The members of the Council were mainly from the two major political groups namely, the Muhajirin and the Ans?ar. In the times of Caliph ‘Umar, the matter of not treating land in the conquered territories of Iraq and Syria as "Ghanimah" (spoils of war) but considering it as state land (according to the text of the Qur’an one fifth of the said land should have been trusted for the welfare of the public and the rest was to be distributed among the soldiers), the fixation of salaries of the members of the armed forces and other personnel, the appointment of governors and tax-collectors, the matters involving trade relations with other countries etc., were disposed of according to the advice of the Council. Caliph ‘Umar is reported to have said that without "Shura" (consultation) there could be no Khilafah.21
As interpreter and promulgator (Mujtahid/ Imam) of Islamic law, Caliph ‘Umar is considered as the founder of the Science of the Secrets of Religion (‘Ilm al-Asrar al-Din). In his view all Shar‘i (religio-legal) ordinances were based on rational considerations, although it was generally held that Reason had nothing to do with Islamic injunctions. Caliph ‘Ali also belonged to the same school of thought and made significant contribution to the science of interpreting Revelation in the light of Reason during his times. According to Shibli, Caliph ‘Umar was the first to encourage the development of "independent inquiry" (Qiyas) for formulating a legal opinion. Before him in the times of Caliph Abu Bakr, legal decisions were taken either in the light of the Qur’an, or in accordance with the precedents set by the Holy Prophet, or on the basis of Consensus of the Companions (Ijma‘).22
Caliph ‘Umar had even been criticised for introducing innovation (bid‘ah) in the course of his interpretation of Islamic law. But his explanation always was that innovation was of two kinds namely, " reprehensible innovation" (bid‘ah al-sayyi’ah) and "commendable innovation" (bid‘ah al-h?asanah). In other words, in his approach, he, not only adhered to the text of the Qur’anic injunctions but at the same time attempted to reach the spirit underlying them.23
Two examples of the Ijtihad of Caliph ‘Umar may be cited in order to show as to how he approached and resolved some of the problems of Islamic law. During an year of famine in Medina, he suspended the Qur’anic penalty (h?add) of cutting of hands of thieves for the reason that if he, as the Head of the State, could not provide basic necessities of life to the citizen, he had no right to impose this Qur’anic punishment. He exercised this power under the doctrine of necessity (id?t?irar) as laid down in surah 2: verse 173, surah 5: verse 3, surah 6: verse 120, and surah 16: verse 115 of the Qur’an which transforms that what is forbidden (h?aram) into lawful (h?alal) under certain conditions of compulsion. In surah 16: verse 106, a believer under compulsion or if forced by necessity, has been permitted even to the extent of a verbal denial of his belief or making a sacrilegious utterance in order to save his skin. There are also some Traditions of the Holy Prophet which support these Qur’anic verses. For instance, he is reported to have said that harm or damage to the community must be avoided at all costs. On one occasion in the course of war he prohibited the cutting of hand of an established thief.
Thus the principle deduced is that in a state of necessity (id?t?irar)) unlawful can become lawful, or necessity makes permissible acts otherwise prohibited. In such a situation a Qur’anic fixed penalty can be suspended. The later Muslim jurists, however, highlighted numerous dimensions of the concept of "necessity" and held that under such circumstances a Qur’anic rule, besides being suspended (Ta‘wiq), can also be restricted in application (Tah?did ) or extended (Tawsi‘) as the conditions require. Eventually the Qur’anic doctrine, apparently of individual necessity, was developed further and applied with full force to the doctrine of collective or state necessity, and in the wider interest of public order or for the prevention of chaos, even usurpation (istila’/taghallub) was acceptable to Imam Abu H?anifah, Imam Ghazzali and other eminent Sunni jurists so long as the usurper (Imam al-mutaghallib) did not interfere in the orderly running of the government, permitted people to perform their religious obligations, and if possible, himself observed the limits of God.24
The other example is of a famous problem of Islamic law of inheritance that arose in the case called al-H?imariyah. In al-H?imariyah the position was that a woman had died leaving behind a husband, a mother, two brothers from a former husband of her mother (uterine brothers), and her full brothers and sisters. In an identical case, Caliph Abu Bakr had given one half to the husband, one sixth to the mother, one third to the two brothers from her mother’s former husband, and as the inheritance was distributed completely among the Qur’anic heirs, nothing was left as residue to be given to the full brothe
Conclusion: Man is the deputy of Almighty Allah.He cannot be an absolute Ruler,Hence the western concept of sovereignty is imperfect and there are limitations on it,whereas the Islamic concept is complete absolute and final,putting emphasis on the sovereigntyof Allah Almighty.
 
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