Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir To the Questions of the Visitors of his Facebook Page "Fiqhi"
Ahmed Al-Qayrawan
Question:
Assalamu Alaikum, what is the meaning of "the Khaleefah alone has the right to adopt Shari'ah rules"?
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuh,
The answer to your question is found in detail in the book The Introduction to the Constitution (Muqaddimat al-Dustur) and in other books of the Party. I will quote for you some of what was mentioned regarding this subject in The Introduction to the Constitution, Volume 1:
- On page 110 of the Word file, it states the following:
[As for the fourth principle, which is "the Khaleefah alone has the right to adopt Shari'ah rules," it has been established by the Consensus of the Companions (Ijma' as-Sahabah) that the Khaleefah alone has the right to adopt Shari'ah rules. From this consensus, the well-known Shari'ah principles were derived: "The command of the Imam resolves the dispute," "The command of the Imam is binding," and "The Sultan may introduce as many judicial rulings as the problems that arise."] End quote.
- In the explanation of Article 36, pages 146-153 of the Word file, it states the following:
[Paragraph (a) its evidence is the Consensus of the Companions. This is because "law" (qanun) is a technical term meaning: the command issued by the Sultan for the people to follow. Law has been defined as (the collection of rules that the Sultan compels the people to follow in their relationships). Meaning, if the Sultan commands certain rules, these rules become a law that people are bound by; and if the Sultan does not command them, they do not become a law, and thus people are not bound by them. The Muslims follow the Shari'ah rules; they follow the commands and prohibitions of Allah, not the commands and prohibitions of the Sultan. What they follow are Shari'ah rules, not the orders of the Sultan. However, the Companions differed regarding these Shari'ah rules; some understood from the Shari'ah texts something different from what others understood. Each used to act according to their own understanding, and their understanding would be the rule of Allah for them. But there are Shari'ah rules where the management of the Ummah's affairs requires that all Muslims follow a single opinion, rather than each person acting according to their own ijtihad.
This actually occurred; Abu Bakr was of the view that wealth should be distributed among Muslims equally because it is their right equally. Umar was of the view that it is not right to give one who fought the Messenger of Allah the same as one who fought alongside him, or to give the poor the same as the rich. However, Abu Bakr was the Khaleefah, so he ordered that action be taken according to his opinion—i.e., he adopted the equal distribution of wealth. The Muslims followed him in that, the judges and governors acted upon it, and Umar deferred to it, acting upon and implementing Abu Bakr's opinion. When Umar became the Khaleefah, he adopted an opinion that contradicted Abu Bakr's opinion; he ordered his own view of distributing wealth according to preference (tafadul), not equality, giving according to seniority and need. The Muslims followed him, and the governors and judges acted upon it. Thus, the Consensus of the Companions was established that the Imam has the right to adopt specific rules taken from the Shari'ah through correct ijtihad, and to command that they be acted upon. It is then mandatory for the Muslims to obey them, even if they contradict their own ijtihad, and they must leave acting upon their own opinions and ijtihad. These adopted rules then became the laws. Hence, the enactment of laws belongs to the Khaleefah alone, and no one else possesses this right at all.] End quote.
I hope the matter has now become clear.
Your brother, Ata Bin Khalil Abu Al-Rashtah
07 Rajab 1442 AH Corresponding to 19/02/2021 CE