The Series "Caliphate and Imamate in Islamic Thought"
By the Writer and Thinker Thaer Salama – Abu Malik
Episode Seventy-Four: Constitutional Law, the Constitution, and Administrative and Criminal Laws – Part 1
Third: Constitutional Law, the Constitution, and Administrative and Criminal Laws:
In every state, whether it is the Caliphate, America, or France, for example, you will find two types of laws and legislation: a set of laws related to the state, its agencies, and its systems, ...etc. (the sum of which constitutes the state's constitution), and examples of this include: You will find the laws that relate to the selection of the ruler, his powers, the state's care... etc., related to the first type of legislation and laws,
And you will find legislation related to the detailed conduct of relations between individuals, for example, the provisions of divorce, inheritance, and companies, traffic laws, and penalties for theft, for example, and the like that are related to the second type of legislation. This second type of detailed rulings is adjudicated by the courts, and judges and jurists derive it from the evidence, or parliaments legislate it in positive systems, and so on.
By extrapolating the legal evidence related to the Islamic state, from the Book and Sunnah, its form and description, its rules and pillars, and the state's agencies in governance and administration that constitute the government and organize its work, its powers, and its political organization with regard to the relationship of the states to the center and the like, and its administrative laws, and the basis on which it is based, and the basic laws governing it that constitute its reference and standards (the constitution), and the conditions of the ruler, and determine the powers of the ruler, and detail the method of his selection, and the method of appointing the Caliph (allegiance), and the rules of obedience, and the rules of the time when there is no one eligible for allegiance, and the method of his removal, and the rules of multiple Caliphs, and the killing of the second Caliph, and the rules of dividing the ranks of Muslims by creating a second entity for them, and control the relations between the shepherd and the flock and between people, and the responsibilities of the pastoral state, and clarify the ideas, concepts and standards by which affairs are taken care of, and "the intellectual basis that defines the rights of individuals, and organizes the political relationship between the state as an authority based on caring for people's affairs, and protecting their rights and taking care of them1", and define the concepts of authority, sovereignty, obedience and the like, and define the constitution and laws that it applies, and detail the provisions for violating those provisions, and the provisions for protecting the state, (criminal legislation specific to the state) and the provisions for the flock's rebellion against the state, and the provisions for the ruler's rebellion against the system of values on which the state was founded, especially the rebellion against the ruler when showing another system other than the system of Islam (explicit disbelief), and the role of the nation and parties in holding the ruler accountable, and the provisions for advising rulers and enjoining good and forbidding evil, and their role in ensuring the sovereignty of the system of values on which the state was founded (enjoining good and forbidding evil, which the Islamic state uniquely did from other systems in establishing responsibilities at all levels to ensure that those values remain dominant and supreme in society and the state) and the rules of authority and security, and sovereignty, (i.e., who has the final say in what happens in disputes and discussions in various matters2, and in the sense that the supreme word in the state and abroad is for whom?), and the rules for regulating judicial oversight of the administrative work of the state, and oversight of the grievance judiciary, and oversight of the integrity of the judiciary3, and what constitutes the sum of the rulings of Sharia politics, we will find that Islam has defined all of this with extreme precision with fixed rulings in the Qur’an and Sunnah, meaning that the legislator has encompassed the details of the rulings related to the state, and did not leave the details of these rulings to the people, so the Caliphate is a divine system.
And there are verses that command the appointment of a guardian who deserves obedience in exchange for applying Sharia in the nation. The command to obey the guardian is a command to appoint a guardian. The verses and hadiths have arranged obedience with the guardian's commitment to applying Sharia. It is obedience to a specific guardian, not obedience to any ruler who rules by tyranny, as are today's rulers, the watchmen of colonialism, the enemies of the nation: ﴿O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day﴾. Until He, may He be glorified, said: ﴿Have you not seen those who claim to have believed in what was revealed to you, [O Muhammad], and what was revealed before you? They wish to refer legislation to Taghut, while they were commanded to reject him; and Satan wishes to lead them far astray﴾. These texts show that Islamic political thought is based on the fact that sovereignty belongs to Sharia and not to the governing body. Based on that, the obedience of the guardian and the Caliph of the Muslims is linked to his obedience to the law of God Almighty. Muslim narrated in the Book of Emirate from Yahya bin Husayn, who said: I heard my grandmother tell that she heard the Prophet ﷺ preaching in the Farewell Pilgrimage, and he was saying: "Even if a slave is appointed over you who leads you with the Book of God, then listen to him and obey him." He stipulated for obedience that he lead with the Book of God Almighty.
And detailed verses were revealed in military, criminal, political, social, economic, transactional, judicial and other legislation, and all of them were revealed to be judged by and to be applied and implemented. It was actually applied in practice during the days of the Prophet ﷺ, and during the days of the Rightly-Guided Caliphs, and those who came after them from the rulers of the Muslims. This clearly indicates that Islam is a specific system for governance and the state, for society and life, and for the nation and individuals. It also indicates that the state does not have the right to rule unless it is following the system of Islam. And Islam does not exist unless it is alive in a state that implements its rulings. Islam is a religion and a principle, and governance and the state are part of it, and the state is the only legitimate way that Islam has established to apply its rulings and implement them in public life. Islam does not have a living existence unless it has a state that applies it in all circumstances, as it also decisively indicates that Islam has defined in detail the form of the system of government and its details, and applied it practically in the first state of prophecy in Medina and then in the state of the Caliphate after it, which refutes all suspicions that are based on the fact that Islam only left the determination of those details to each era and time and to the minds and desires of people.
The Messenger ﷺ established the Islamic state in Medina and clarified its agencies and system, so he appointed governors, judges, assistants, established a Shura system, and exercised governance in it, and the Companions pledged allegiance to him as president of the state, and when he moved to the highest companion, the system that he established remained the same, and as he ﷺ called it the Caliphate in a number of hadiths, some of which we have already mentioned,
This clearly indicates that the form of the Islamic state and its system is a divine legislation, and that the rulings were revealed and with them the method of their application, and the matter was not left to the whims of people and what they are accustomed to!
1- The contemporary state in light of Islamic thought, a doctoral thesis by Dr. Othman Bakhsh. p. 9.
2- The contemporary state in light of Islamic thought, a doctoral thesis by Dr. Othman Bakhsh. p. 7.
3- See: The Islamic Political System Compared to the Legal State, a Comparative Legal and Sharia Study by Professor Dr. Munir Hamid Al-Bayati, p. 16
