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Draft Constitution of the Khilafah State7 min readViewed 6 times

Article 37


The Khalifah’s adoption is restricted by the Shari’ah rules; he is prohibited to adopt any rule which is not derived according to a legitimate deduction from the Shari’ah evidences, and he is restricted with what he adopted of the rules, and by what he bound himself to with respect to the method of derivation. So he is not permitted to adopt a rule which has been derived according to a methodology which contradicts the methodology he adopted, and he cannot give an order which contradicts the rules that he had adopted.

There are two issues in this article: the first being that the Khalifah is restricted in the adoption of rules to adopting from the Shari’ah rules; in other words, he is restricted by the Islamic Shari’ah in legislation and enacting laws. Therefore, it is not permitted for him to adopt anything which contradicts that since they would be the rules of Kufr (disbelief); if he adopted rules from other than the Islamic rules, and he knew that what he had adopted was something other than the Islamic Shari’ah, then the words of Allah (swt).

“And whoever does not judge by what Allah has revealed - then it is those who are the disbelievers.” (TMQ 5:44) apply to him, so if he believed in the rule that he had adopted, then he would commit disbelief and apostatise from Islam. If he did not believe in it, but he took it upon the basis that it did not contradict Islam, in the same manner that the Ottoman Khulafaa’ acted during their final days, then it would be forbidden for him but he wouldn’t commit disbelief. If he had a semblance of an evidence, such as the one who legislates a rule which has no evidence, due to a benefit that he thinks is there, and relies upon the rule of Al-Masalih Al-Mursalah, or the “preventing the means” or “the means of the actions” or anything similar, then if he thought that these rules were Shari’ah rules and evidences, it wouldn’t be forbidden for him and nor would he commit disbelief. However, he is mistaken, and what he has derived is considered a Shari’ah rule by all of the Muslims, and it is obligatory to obey it if the Khalifah adopts it, since it is a Shari’ah rule, and it would have a semblance of an evidence even if he was mistaken in the evidence, since he is like the one who is mistaken in the deduction from the evidences. In any case, it is obligatory for the Khalifah to restrict his adoption to the Islamic Shari’ah, and to restrict himself to adoption of Shari’ah rules derived by a correct deduction from the Shari’ah evidences. The evidence for this:

Firstly: What Allah (swt) obligated upon every Muslim, whether they were the Khalifah or not, to conduct all of their actions according to the Shari’ah rules; Allah (swt) says. “But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves.” (TMQ 4:65). Conducting the actions according to the Shari’ah rules necessitates the adoption of a specific rule when there are a number of understandings of the address of the Legislator; in other words, when the Shari’ah rule is numerous. So adoption of a specific rule in those issues where there are a number of opinions is obligatory upon the Muslim when he wants to undertake the action, in other words, when he wants to apply the rule, and so it is obligatory upon the Khalifah when he wants to carry out his action and that is the rule.

Secondly: The text of the pledge of allegiance which the Khalifah is contracted upon, obliges him to adhere to the Islamic Shari’ah, since it is a pledge upon the Book and the Sunnah, and so it is not permitted for him to leave these two - rather whoever intentionally goes outside these two commits disbelief and if it was unintentional then he would be sinful.

Thirdly: The Khalifah is appointed in order to implement the Shari’ah, and so it is not permitted for him to implement anything from outside the Shari’ah upon the Muslims, since the Shari’ah prohibits such an action in a decisive manner which reaches the level whereby the one who implements other than Islam has their Iman negated, which is an indication for it being decisively prohibited. This means that the Khalifah is restricted in his adoption of the rules, in other words, in his drafting of the laws according to the Shari’ah rules alone, and if he drafts any laws based upon anything else, then he will commit disbelief if he believes in it, and will be sinful if he doesn’t.

These three evidences are the proof for the first issue in this article. As for the second issue of the article which is that the Khalifah is restricted by what he has adopted and by what he adheres to in terms of a method of deduction, the proof for this is that the Shari’ah rule which the Khalifah implements is the Shari’ah rule for him, and not for others; in other words, the Shari’ah rule which he adopted in order for his actions to proceed in accordance with and not any Shari’ah rule. So if the Khalifah deduced a rule, or followed someone else in it, that Shari’ah rule would be the rule of Allah (swt) for him, and he would be restricted by this Shari’ah rule in his adoption of it for the Muslims. It would not be permitted for him to adopt anything different to it, since it would not be considered to be the rule of Allah (swt) for him, because it would not be a Shari’ah rule with respect to him, and accordingly it would not be a Shari’ah rule with respect to the Muslims. Therefore, his orders that he issued for the sake of the subjects would be restricted according to this Shari’ah rule which he had adopted, and it is not permitted for him to issue orders which contradict whatever he had adopted from the rules. This is because that order which he issued would not be considered the rule of Allah (swt) for him, and so would not be considered a Shari’ah rule with respect to him, and then it would not be a Shari’ah rule in respect to the Muslims, in which case, it would be as though he had issued an order which was not based upon the Shari’ah rule. Due to this, it is not permitted for him to issue any order which contradicts what he adopted from the rules.

Also, the method of deduction causes a change in the understanding of the Shari’ah rule, so if the Khalifah considered the Illah to be a Shari’ah Illah if it is derived from a Shari’ah text, and he does not think that Maslahah is a Shari’ah Illah, and he does not consider Al-Masalih Al-Mursalah to be a Shari’ah evidence, then it means that he has specified a method of deduction for himself. In which case, it would be obligatory for him to be restricted by it, and it would not be correct for him to adopt a rule whose evidence was based upon Al-Masalih Al-Mursalah, or to take an analogy based upon an Illah which was not derived from a Shari’ah text, since that rule would not be considered a Shari’ah rule for him as he does not recognise its evidence as a Shari’ah evidence, in which case in his view, it would not be a Shari’ah rule. As long as it is not considered to be a Shari’ah rule for the Khalifah, then it would not be a Shari’ah rule for the Muslims and so it would be as if he adopted a rule from other than the Shari’ah rules, which is prohibited for him. If the Khalifah was a Muqallid (someone who follows another person’s Ijtihad), or a Mujtahid in an issue and not a Mujtahid Mutlaq or Mujtahid Madhhab, and he did not have a specific method of deduction, then he would be permitted to adopt any Shari’ah rule as long as it has an evidence, as long as that evidence is a semblance of an evidence; he would not be restricted by anything in his adoption of the rules but rather he would only be restricted by what he issued in terms of orders such that they should not be issued except according to what he had adopted from the rules.

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Chapters (210)
  1. 1Constitution
  2. 22 General Rules
  3. 3Article 1
  4. 4Article 2
  5. 5Article 3
  6. 6Article 4
  7. 7Article 5-6
  8. 8Article 7
  9. 9Article 8
  10. 10Article 9
  11. 11Article 10
  12. 12Article 11
  13. 13Article 12
  14. 14Article 13
  15. 15Article 14
  16. 16Article 15
  17. 183 The System of Ruling
  18. 19Article 16
  19. 20Article 17
  20. 21Article 18
  21. 22Article 19
  22. 23Article 20
  23. 24Article 21
  24. 25Article 22
  25. 26Article 23
  26. 274 The Khalifah
  27. 28Article 24
  28. 29Article 25
  29. 30Article 26
  30. 31Article 27
  31. 32Article 28
  32. 33Article 29
  33. 34Article 30
  34. 35Article 31
  35. 36Article 32
  36. 37Article 33
  37. 38Article 34
  38. 39Article 35
  39. 40Article 36
  40. 41Article 37
  41. 42Article 38
  42. 43Article 39
  43. 44Article 40
  44. 45Article 41
  45. 465 The Delegated Assistants Tafwid
  46. 47Article 42
  47. 48Article 43
  48. 49Article 44
  49. 50Article 45
  50. 51Article 46
  51. 52Article 47
  52. 53Article 48
  53. 546 The Executive Assistant Tanfidh
  54. 55Article 49
  55. 56Article 50
  56. 57Article 51
  57. 587 The Governors
  58. 59Article 52
  59. 60Article 53
  60. 61Article 54
  61. 62Article 55
  62. 63Article 56
  63. 64Article 57
  64. 65Article 58
  65. 66Article 59
  66. 67Article 60
  67. 688 The Amir of Jihad The Military Department The Army
  68. 69Article 61
  69. 70Article 62
  70. 71Article 63
  71. 72Article 64
  72. 73Article 65
  73. 74Article 66
  74. 75Article 67
  75. 76Article 68
  76. 77Article 69
  77. 789 The Internal Security
  78. 79Article 70
  79. 80Article 71
  80. 81Article 72
  81. 8210 The Foreign Affairs Department
  82. 83Article 73
  83. 8411 The Department of Industry
  84. 85Article 74
  85. 8612 The Judiciary
  86. 87Article 75
  87. 88Article 76
  88. 89Article 77
  89. 90Article 78
  90. 91Article 79
  91. 92Article 80
  92. 93Article 81
  93. 94Article 82
  94. 95Article 83
  95. 96Article 84
  96. 97Article 85
  97. 98Article 86
  98. 99Article 87
  99. 100Article 88
  100. 101Article 89
  101. 102Article 90
  102. 103Article 91
  103. 104Article 92
  104. 105Article 93
  105. 106Article 94
  106. 107Article 95
  107. 10813 The Administrative System
  108. 109Article 96
  109. 110Article 97
  110. 111Article 98
  111. 112Article 99
  112. 113Article 100
  113. 114Article 101
  114. 11514 The Treasury Bayt al Mal
  115. 116Article 102
  116. 11715 The Media
  117. 118Article 103
  118. 119Article 104
  119. 12016 The Ummah Council The Consultation Shura and Accounting Muhasabah
  120. 121Article 105
  121. 122Article 106
  122. 123Article 107
  123. 124Article 108
  124. 125Article 109
  125. 126Article 110
  126. 127Article 111
  127. 12817 The Social System
  128. 129Article 112
  129. 130Article 113
  130. 131Article 114
  131. 132Article 115
  132. 133Article 116
  133. 134Article 117
  134. 135Article 118
  135. 136Article 119
  136. 137Article 120
  137. 138Article 121
  138. 139Article 122
  139. 14018 The Economic System
  140. 141Article 123
  141. 142Article 124
  142. 143Article 125
  143. 144Article 126
  144. 145Article 127
  145. 146Article 128
  146. 147Article 129
  147. 148Article 130
  148. 149Article 131
  149. 150Article 132
  150. 151Article 133
  151. 152Article 134
  152. 153Article 135
  153. 154Article 136
  154. 155Article 137
  155. 156Article 138
  156. 157Article 139
  157. 158Article 140
  158. 159Article 141
  159. 160Article 142
  160. 161Article 143
  161. 162Article 144
  162. 163Article 145
  163. 164Article 146
  164. 165Article 147
  165. 166Article 148
  166. 167Article 149
  167. 168Article 150
  168. 169Article 151
  169. 170Article 152
  170. 171Article 153
  171. 172Article 154
  172. 173Article 155
  173. 174Article 156
  174. 175Article 157
  175. 176Article 158
  176. 177Article 159
  177. 178Article 160
  178. 179Article 161
  179. 180Article 162
  180. 181Article 163
  181. 182Article 164
  182. 183Article 165
  183. 184Article 166
  184. 185Article 167
  185. 186Article 168
  186. 187Article 169
  187. 18819 The Education Policy
  188. 189Article 170
  189. 190Article 171
  190. 191Article 172
  191. 192Article 173
  192. 193Article 174
  193. 194Article 175
  194. 195Article 176
  195. 196Article 177
  196. 197Article 178
  197. 198Article 179
  198. 199Article 180
  199. 20020 Foreign Policy
  200. 201Article 181
  201. 202Article 182
  202. 203Article 183
  203. 204Article 184
  204. 205Article 185
  205. 206Article 186
  206. 207Article 187
  207. 208Article 188
  208. 209Article 189
  209. 210Article 190
  210. 211Article 191