Series "The Caliphate and Imamate in Islamic Thought"
By the writer and thinker Thaer Salama - Abu Malik
Sixty-Fourth Episode: The Components of the Rule of Law Between the Islamic Concept and the Western Concept
Fourth: The components of the rule of law between the Islamic concept and the Western concept - a comparison
It is worth noting that legal thinkers develop the components of the rule of law based on what they perceive as the form of the state, and this perception is not necessarily correct and applicable to every form of state. They have four components of the rule of law:
- The existence of the constitution, which of course exists in the Islamic state and is derived from the detailed evidence,
- The gradation of legal rules. The strength of legal rules varies, and some outweigh others if a conflict occurs. Constitutional rules are stronger than other ordinary legislation and regulations issued by administrative authorities such as municipalities, states, and departments. The lower rules are subject to the higher ones in form and content, so they do not conflict with the higher rules, in order for the legal structure of the state to be consistent,
The reason for the existence of this component is the issuance of laws and rules by humans in countries that abide by man-made systems, and therefore the existence of a presumption of conflict, contradiction, and disagreement, and an attempt by them to limit the exploitation of powers so that the rulings issued by the lower authorities are returned to those issued by the higher authority, which represents the constitutional law of the state in most cases. Therefore, they set this condition in order to achieve harmony and to ensure the dominance and reference of constitutional systems. As for the Islamic state, whether the Caliph, the judge, or the jurist, it derives rulings from the detailed evidence according to the rules of jurisprudence, which constitute a complete, distinct, and completely disciplined methodology to ensure the legitimacy of the rulings and the prevalence of the belief that they are what the legislator intended from those issues. Therefore, the mechanism for the consistency of the rule of law with its systems is available in a way specific to the Islamic state, and the state does not need to be subject to this component in the way Western jurists imagine it.
- The subjection of the administration to the law. The administration does not take any action, administrative decision, or material action except in accordance with the law and in implementation of the law. The administration is issued by and adheres to the law, which achieves the value of the rule of law. This principle is fully achieved in the Islamic state, as the ruler, the ruled, the administration, and the state apparatus are all bound by the Sharia rulings and have no right to deviate from them or against them.
- Recognition of individual rights and freedoms[2], and so on, so this component is not considered in judging the state as being legal!
However, these legislators claim that this last component only exists to protect individuals from the abuse of public authorities and their infringement on their rights, because the law and the prevailing principle in the state only exist - in their opinion - in order to guarantee individuals enjoy their "public freedoms" and "individual rights"
[2] Islam has brought many rulings for the People of the Dhimma in which it guaranteed them the rights and duties of the subjects. The People of the Dhimma have the same rights to fairness as we do, and they have the same obligations to justice as we do. As for the fact that they have the same rights to fairness as we do, that comes from the general saying of God Almighty: ﴿And when you judge between people, judge with justice﴾ and His saying, may His glory be exalted: ﴿And let not the hatred of a people prevent you from being just. Be just; that is nearer to righteousness.﴾ And His saying about judging between the People of the Book: ﴿And if you judge, judge between them with justice.﴾ As for the fact that they have the same obligations to justice as we do, that comes from the fact that the Prophet, peace and blessings be upon him, inflicted punishment on the disbelievers as he inflicted it on the Muslims. The Messenger, peace and blessings be upon him, killed a Jew as punishment for killing a woman, and he, peace and blessings be upon him, was brought a Jewish man and woman who had committed adultery, so he stoned them. The People of the Dhimma have the right to protection from us as Muslims, because the Messenger of God, peace and blessings be upon him, said: «Whoever kills a soul who has a covenant with God and His Messenger has broken God's covenant and will not smell the fragrance of Paradise, even though its fragrance can be found from a distance of forty autumns.» The Messenger of God, peace and blessings be upon him, was brought a Muslim who had killed a Jew, so he killed him and said: «We are more entitled to fulfill his covenant.» The People of the Dhimma have the right to the same care for their affairs and guarantee of their livelihood as the Muslims. From Abu Wael, from Abu Musa, or one of them, with his chain of narrators, that the Messenger of God, peace and blessings be upon him, said: «Feed the hungry, visit the sick, and ransom the captives.» Abu Ubaid said: "Likewise, the People of the Dhimma are fought for, and their captives are redeemed. If they are rescued, they return to their covenant and contract as free men. There are hadiths about that." See: Introduction to the Constitution or the reasons for it by Hizb ut-Tahrir, general provisions.
[3] See: The Islamic Political System Compared to the Rule of Law, A Comparative Legal and Sharia Study by Professor Dr. Munir Hamid Al-Bayati, p. 26 and Tharwat Badawi, Political Systems, p. 178.
