(Series of answers by the eminent scholar Ata Bin Khalil Abu Al-Rashta, Ameer of Hizb ut-Tahrir, to questions from visitors to his Facebook page "Fiqhi")
Question:
To Abdul Kareem
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh
One of the conditions of the Khaleefah is that he must be 'adl (just/upright). We use qiyas (analogy) to derive this hukm (ruling), but can the following verse of the Qur'an be used as a daleel (evidence) for this condition also:
إِذَا حَكَمْتُمْ بَيْنَ النَّاسِ أَنْ تَحْكُمُوا بِالْعَدْلِ
“And when you judge between people to judge with justice.” (QS An-Nisa [4]: 58)?
Jazakallahu Khairan
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
Your question pertains to one of the conditions for the conclusion (in’iqad) of the Khaleefah, as stated in our books:
(In the book, The Institutions of State (Ajhizat ad-Dawlah): "Fifth: That he must be 'adl (just/upright). It is not permissible for him to be a fasiq (transgressor). Justice ('adalah) is a necessary condition for the conclusion of the Khilafah and for its continuation; because Allah (swt) stipulated that a witness must be 'adl. He (swt) said:
وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ
"And take for witness two just persons from among you." (QS At-Talaq [65]: 2)
Therefore, the one who holds a greater position than a witness, which is the Khaleefah, must necessarily be 'adl as a matter of priority (min bab al-awla). Since justice is a condition for a witness, it is a condition for the Khaleefah by greater right.")
As you can see, the issue pertains to the Khaleefah himself being 'adl; that is, justice/uprightness must be realized within the Khaleefah as one of his personal attributes. It is not merely that he "judges with justice" or resolves disputes justly. A disbeliever (kaffir) might judge between two disputants with justice, yet a disbeliever, due to his fisq (disbelief/transgression), is not 'adl. Therefore, the correct evidence for the condition of 'adalah (uprightness) is what we mentioned—that since it is obligatory for a witness, it is even more so for the Khaleefah.
In summary, the realization of the condition of 'adalah in the Khaleefah means that he is 'adl (upright) and that he judges with justice. The evidence here is the condition of 'adalah for a witness, and the Khaleefah follows by way of a fortiori priority. If the Khaleefah is 'adl, then he judges with justice.
As for using the noble verse as evidence, it refers to the act of "judging with justice." It does not necessarily mean that the one who judges with justice or resolves a dispute justly must be 'adl (upright in character). As mentioned before, a disbeliever might act justly between two disputants, yet he is not 'adl. Therefore, the most correct evidence is the one we previously stated.
Allah is the All-Knowing and Most Wise.
It is worth noting that the word “hakama” as established by the Arabs—meaning in the language or what is called the linguistic reality (al-haqiqa al-lughawiyyah)—is “qada” (to judge/decide):
It is mentioned in Lisan al-Arab: (Al-Hukm: knowledge, jurisprudence, and judging with justice, and it is the root of hakama yahkumu... qada: Al-Qada is al-hukm...)
And in Al-Qamus al-Muhit: (Al-Hukm, with damma: Al-Qada)... And in Mukhtar as-Sihah: (Al-Hukm is al-qada...)
However, this term “hukm” was used technically (istilahan) during the era of the Messenger ﷺ, the Rightly Guided Caliphs, and the Arabs after them to mean al-mulk (rule) and as-sultan (authority). This is a technical usage or "conventional reality" (haqiqa 'urfiyyah).
Thus, the word “hukm” is a linguistic reality for "judiciary" (qada), and a specific conventional reality (technical term) for "ruling and authority" (al-mulk wa as-sultan).
Your brother, Ata Bin Khalil Abu Al-Rashta
02 Dhu al-Qi'dah 1439 AH 15/07/2018 CE
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