Content uploaded by Mohammad Mushfequr Rahman
Author content
All content in this area was uploaded by Mohammad Mushfequr Rahman on Dec 20, 2022
Content may be subject to copyright.
Content uploaded by Mohammad Mushfequr Rahman
Author content
All content in this area was uploaded by Mohammad Mushfequr Rahman on May 29, 2022
Content may be subject to copyright.
Page | 1
Contents
...................................................................................................................................................................... 1
Opening Remarks .......................................................................................................................................... 3
Political System ............................................................................................................................................. 4
Is Islam Political? ....................................................................................................................................... 4
What is Political Science? .......................................................................................................................... 6
Political Science as The Public Good ......................................................................................................... 7
The Need for Politics ................................................................................................................................. 7
Forms of Political Power ........................................................................................................................... 9
Islamic Leadership ................................................................................................................................... 17
Political Parties ........................................................................................................................................ 26
Institutions .............................................................................................................................................. 29
Interest Group & Public Opinion ............................................................................................................. 34
Privacy ..................................................................................................................................................... 36
Jihad ........................................................................................................................................................ 39
International System ............................................................................................................................... 42
Political Islamic Mindset ......................................................................................................................... 53
Conclusion ............................................................................................................................................... 55
Legal System ............................................................................................................................................... 58
Background ............................................................................................................................................. 58
Law, Legal System & Legal Science ..................................................................................................... 58
Jurisdiction .............................................................................................................................................. 64
Legislation ............................................................................................................................................... 67
Judgement............................................................................................................................................... 71
Philosophy and Theology .................................................................................................................... 71
Steps in Judgement ............................................................................................................................. 80
Jury ...................................................................................................................................................... 81
The Islamic Judge ................................................................................................................................ 82
Plea Bargain ........................................................................................................................................ 84
Page | 2
Legal Wrong ........................................................................................................................................ 84
Legal Defense ...................................................................................................................................... 90
Access To Justice ..................................................................................................................................... 95
Evidence .................................................................................................................................................. 98
What is Hujja? ..................................................................................................................................... 98
Relevance and Admissibility ................................................................................................................ 99
Burden of Proof ................................................................................................................................... 99
Hujja in Islam ..................................................................................................................................... 101
Witness as Hujja ................................................................................................................................ 101
Conclusion ............................................................................................................................................. 103
References ................................................................................................................................................ 103
Page | 3
Opening Remarks
This piece of writing God willing can replace the cancer of secularism by its theoretical and
functional superiority over secularism. Many may not agree with this writing, but they should
ask sincerely will this work, be sustainable and can be matured? The answer is God willing, yes.
This writing gives a detailed guidance for Muslims to create Islamic states leading to a “United
Islamic States” which will become ready to welcome the advent of imam Mahdi. Muslim
impotence to change the system to political Islam cannot be an excuse to pollute the integrity
of Islam. If deluded misguided Muslims think that they, by marginalizing Islamic system, can
find success in this world then they should know the ultimate destination of all godless
ideologies and systems is chaos and annihilation. This is clearly demonstrated historically by the
domination of oppressors and abundance and helplessness of the oppressed. Even if the
oppressed accept the system and are content with it still its oppression as happened with
historical slavery.
I have tried to give as many references as possible from Islamic texts. Understand that Islamic
texts, irrespective of the nature of ruling and guidance contained in them are pieces of a Lego
block, acting as a brick towards a greater complete and strong structured, functional and
organized religious ontology. For the purpose of this writing Islamic texts can be divided as a)
legal norm and law
1
b) ontological texts giving information on the state of things, their
dynamism, causality or association among things c) factual texts giving information on facts.
Critics will say some of these texts do not obligate or prohibit anything, but I am asking them to
respond to its guidance and if such can eradicate the long disease of secularism then why not
these become obligatory? So, when reading this writing understand the rationale, significance,
relevance and consequences, specially towards Islamic revival and Islamic empowerment and
1
Legal norm is guidance on belief, act, behavior and procedure and law is command and prohibition. Intrinsically or
extrinsically legal norm can be pivotal in the functioning of the law. Rule of plaintiff required to present evidence is
a legal norm without which many, one can say, criminal laws of Islam, as an example law of apostasy do not
function.
Page | 4
sustainability. Western secularism has thrived in west because they have no other alternatives
and thus it has been a matter of western survival, so they devoted in sustaining and developing
secularism.
How to read this writing? As political and legal systems are interconnected and as their
interdomain topics are also interconnected then the reader should have a "broad containing
and synthetic" mind so that the reader is able to appreciate the interconnectedness of
concepts, sections and topics. This will reveal the strength and coherency of the Islamic system
discussed if also the reader is able to recall correct information in the correct time. The reader
must be able to delimitate concepts, explanations and arguments to perceive a clear position of
Islam. Note the name of this writing is political and legal system but not political and legal
systems suggesting that political and legal system of Islam is one interconnected system and
cannot be separated. Is it fair to call Islam providing a system? A system is a set of things
working together as parts of a mechanism or an interconnecting network; a complex whole.
Islamic texts when used properly create such a system, and political and legal system of Islam is
a result of this set of things called divine texts.
Political System
Is Islam Political?
Does Islam support politics
2
and political science? Or is Islam a religion of the monks locked
away in isolated towers to pray day and night? "When anyone studies a little or pays a little
attention to the rules of Islamic government, Islamic politics, Islamic society and Islamic
economy he will realize that Islam is a very political religion. Anyone who will say that religion is
separate from politics is a fool; he does not know Islam or politics"
3
. Truly Quran and Hadith are
2
Politics is about power and refers to the distribution and exercise of power within a society, and power refers to the
ability to have one’s will carried out despite the resistance of others. For this discussion political power will be
meant primarily as the highest power in a legal jurisdiction.
3
The great Islamic revolutionary Imam Khomeini
Page | 5
full of divine legislations, politics and stories about battle between good and evil power,
between divine supremacy through human vicegerency and satanic supremacy through human
enslavement. So, Islam is a political religion.
The scientific study of politics is political science. Quran encourages thought, reason and
research. When God says in Quran, He gives power whom He wills for example then this is not
only an indication of divine intervention but also “power models” which allocate power to
individuals or groups. This is a scientific perspective of power, studying variables, causes and
processes for example. So, Islam supports both politics and political science.
Many Quranic verses establish the political nature of Islam, but I will give just three. From the
nature of Islamic
4
prayer
5
in Quran we find it demands rejection of all forms of political and
ideological authority that rejects God’s authority. From the nature of Islamic tax Zakat
6
we find
it is to be supervised under Islamic governance and also practice of Prophet shows such. From
the nature of Hajj
7
we find rejection of tyranny and persecution, and dominion of God’s
authority. Three pillars of Islam establish the political nature of Islam.
Prophet Muhammad’s (PBUH) mission was political: “No one fought with him over his good
manners, which he had even before prophethood. It was when he began to be active in politics
that they started showing enmity toward him”
8
. When prophet called to the Kalima, one of the
major demands of this was realizing Islamic jurisdiction over Muslim polity. Prophet could have
compromised political Islam and Islam’s legislative authority, but he used preaching, diplomacy
4
The term Islamic means a) based on Islamic text, its rationale, objectives, purpose or ruling b) under jurisdiction
where laws of Quran and Sunnah are implemented
5
They said, "O Shu'ayb, does your prayer command you that we should leave what our fathers worship or not do
with our wealth what we please? Verily, you are the forbearer, right-minded!" (They said this sarcastically).
6
…and for those employed to collect [zakah]…(Quran 9:60)
7
And a proclamation from Allah and His messenger to all men on the day of the Greater Pilgrimage that Allah is
free from obligation to the idolaters, and (so is) His messenger. (Quran 9:3)
8
Sheikh Panahian
Page | 6
and armed Jihad to realize, sustain and evolve these in the first Islamic jurisdiction of Medina. It
is also, to preserve political Islam, that imams of Ahl Bayt fought secular sentiments of the tribal
Arabs and were martyred.
What is Political Science?
Political science, irrespective of western, Eastern or Islamic, has the following main research
themes: power, wealth, the individual, the society, culture and philosophy of existence. Political
philosophy lays down semantics and norms about these themes and explain facts relating to
these themes through reasonable explanations and broad frameworks which are not always
objective universal truths. The aim is to achieve a just, functional, clear and sustainable
ontology. According to Plato we have a set of objective principles that wise men can attain and
understand from the nature through reason while to Aristotle such principles can be
understood through empirical studies. God revealed His religion, and His religion Islam is
contained in texts of Quran and Sunnah. These contain the ontology and a greater picture
which give us more information and revelation than what Plato and Aristotle identified as the
sources. In another perspective, Islamic texts are like Lego blocks which can be used to
model functional, comprehensive political and legal architectural and procedural ontologies,
but sadly many modernist Muslim scholars selectively choose and apply those texts which give
support to secular concepts, policies and frameworks.
Can Muslims refer to non-Muslim political science for guidance? Yes, they can, and this is part
of seeking knowledge
9
, but some conditions must be followed, and they are a) Islamic texts or
it's rationale do not provide an alternative b) Must serve objective, purpose or rationale of
Islam and it's texts c) Must not contradict biography of the Prophet and the twelve imams and
d) Must be based on knowledge rather than cultural belief or practice, that is knowledge
expressed through hypothesis, strong inference and conclusion.
9
Imam Ali (AS) said, ‘Wisdom is the lost property of the believer, so seek it even from the polytheist for you will
be more deserving and worthier of it [than him].’[Amali al-Tusi, p. 625, no. 1290]
Page | 7
Political Science as The Public Good
The Europeans needed to study politics to address the shortcomings of the existing systems.
For example, monarchy and feudalism were oppressive and exploitative systems. The need to
achieve a better political system was motivated by the European conscience of seeking public
good according to the Straussians. This is an example of self-preserving evolution of European
thought, and we see empirically European political and legal thoughts have evolved to human
rights and democracy. For Muslims this seeking of good was achieved by Divine intervention in
the form of Prophets and Messengers
10
. This means Muslims had Divine guidance to help them
achieve political success, but unfortunately Muslims failed to utilize this effectively and moved
to what Europe was in it’s dark period of civil strife, nationalism and injustice. Muslims have
initiated this degradation first through Arab tribalism which established the first monarchy in
Islam and then through colonialism and now neocolonialism which has been an obstacle to
achieve Political Islam. Only political Islam can give Muslims the good determined by God, His
Prophet and the Ahl Bayt.
The Need for Politics
Political authority is needed to achieve social stability and legislative consistency. Without
political authority we will live in a dystopian existence much like in a post-apocalyptic world.
Political authority establishes decision making process and how power should be exercised.
However, the rationality, justness and equity of such need to be discussed. For secular
ideologies the human is the source of political authority while for Islam, human is just a means
to God's authority on earth. European scientific achievements went hand in hand with political
developments and progress. For example, while liberalism gained momentum and the
“censoring power” of church declined, scientific developments also gained momentum in
Europe. So Political maturity and efficacy are essentials for all other human developments.
10
…To each among you have we prescribed a law and a pathway….(Quran 5:48)
Page | 8
While secularism was a byproduct of Christianity, theocracy is intrinsic to Islam. St. Thomas
Aquinas accommodated secularism within Christianity. He put God at the top, then
governments and individuals below God who were both answerable to Christian law and man-
made law which is achieved through human imperfect reason. Gradually this distinction, along
with the development of natural sciences and the decline of Catholic Christendom, developed
the human individualism, that is, man is an identifiable discrete entity with an independent
conscience, ruler of his own self.
However, for Islam this form of individualist conscience is rejected
11
as man is the Khalifa i.e.,
representative of God on earth so he needed to be political (powerful) to represent His
authority
12
and dominion against the authority and dominion of the devil Djinns
13
. As politics is
organization, management, and dispensation of justice then it follows that divine politics is
achieving such through God's guidance i.e., the Shariah law through His earthly representative
mankind. Political Islam is thus control over men and society through exercising policies by
God's guidance. Towards this end God has sent laws through prophets and messengers
14
throughout history just so that a) man can connect with God b) man can live with justice and
peace through God.
Due to these reasons all scholars of Islam are unanimous of the necessity of Imamate (political
leadership) for Muslims. Muslims thus are required collectively to pursue a religio-political
construct for their existence through Sharia law irrespective of what others think or feel about
this mission. The minority or non-Muslims are obliged to obey non-faith-based Islamic laws as
well. An Islamic existence is beneficial for all aspects of human existence. Due to the detailed
11
Have you seen he who has taken as his god his [own] desire… (Quran 45:23). Desire which Islam rejects is desire
to do prohibited things and desire to do permissible things with the intensity that it makes one lazy in obeying God.
12
Legislation is not but for Allah (Quran 12:40)
13
And when thy Lord said unto the angels: Lo! I am about to place a viceroy in the earth… (Quran 2:30)
14
Verily, We sent (Messengers) to many nations before you (O Muhammad)… (Quran 6:42)
Page | 9
nature of God's law and it's conformity with sound reason, in Islam, unlike in Christianity and
secularism, man's reason and conscience are subservient to the Divine law and not
independent of it.
When we achieved God's rule on earth our lives will improve. For example, there will be no
alcoholics and their disastrous multileveled consequences as God's law will reject selling of
alcohol. This is because Islam creates correct belief, correct thought, correct behavior and
correct emotion depending on the extent of understanding of Islam and textual adherence. As a
consequence of Political Islam this will help us think about ourselves (self-concept) as part of
Islamic polity, teach us to present ourselves to others as part of Islamic polity, teach us about
how to approach others’ thinking about us, help us become more aware about ourselves, the
Ummah and the greater society, teach us how to interpret social information through
constructing guided perspectives and lastly teach us to think about and evaluate others. As a
consequence, we will be guided
15
to become better society, better family, better government,
better employee, better citizen, better international player and a better person spiritually and
morally and ultimately victory in the hereafter.
Forms of Political Power
All of the forms, except political Islam, discussed here are secular in principles and many in
policies. According to Steve Bruce secularization is a social condition manifest in (a) the
declining importance of religion for the operation of non-religious roles and institutions such as
those of the state and the economy; (b) a decline in the social standing or religious roles and
institutions; and (c) a decline in the extent to which people engage in religious practices, display
beliefs of a religious kind, and conduct their lives in a manner informed by such beliefs. So, this
process of secularization operates on three levels: a) social structural, where Islamically guided
institutions lose functions that are now performed by secular agencies. b) cultural, in which the
15
Verily, this Quran guides to that which is most just and right… (Quran 17:9)
Page | 10
Islamically valid content of art, music, literature, philosophy has hugely declined, in exchange
for a secular perspective on the world. 3) individual consciousness, where fewer and fewer
people think in a religious mode and the faithful become a cognitive minority. As Islam has
become a cognitive minority then it follows that Islamic intellectual and cultural expressions
have become almost non-existent.
Monarchy, liberalism, conservatism, communism and feminism have been dominant in history
and continue to be, except feminism which is recently new and politically infant. Monarchy is
rejected by Islam. Monarchy in Islamic history and in world history has been mostly dark,
oppressive and cruel and continue to be. Monarchy in Islam started by usurpation and
massacre of Prophet's family. Neither the Twelve imams are monarchical, nor the first four
caliphs have been. Monarchical is irrational and is not earned by hard work, merit and piety but
rather inherited, so monarchs have been often cruel, wasteful
16
and thus economically
oppressive throughout human history. This is also amplified by the fact that most monarchies in
the world are constitutional and thus monarchs/kings have lost considerable amount of power,
yet they enjoy lavish wasteful lifestyle at the expense of taxpayers money. Muslim monarchy,
royalty etc. must transfer the form of political power to theocratic meritocracy. This is an
obligation on them.
Prophetic kings cannot be a justification for monarchy because the principle of Prophetic
kingdom has never been based on automatic inheritance of kingdom and wealth to first son,
but rather Prophetic kingdom was decided and guided by God. As to the character of Prophets
this need no explanation.
One needs to understand the difference between liberalism and conservatism historically have
been at times blurred. What was conservatism in America was liberalism in Europe and vice
versa. These two ideologies have at times been synonymous and at times contradictory. What
some people think conservatism and liberalism today might not have been same historically.
16
Imam al-Kazim (AS) said, ‘He who economizes and is content, his bounties will stay, and he who wastes and
squanders, his bounties cease to remain with him.’[Bihar al-Anwar, v. 78, p. 327, no. 4]
Page | 11
Liberalism is based on some metaphysical views about human nature. Man is rational and thus
individual freedom is given to him. This individual freedom in classic liberalism meant right to
private property, support for democracy and it's institutions, rule of law, tolerance of diversity
and peaceful reform. However, these theories may not have been always practiced by liberal
political establishments. For example, liberal governments have used violence and censorship
against the rise of communism in western Europe. Today there is an established string trend of
forced liberalization as well. To change the individual and the society, changes are often applied
in the crucial institutions some of which are family organization, education and the job industry.
Western forced liberalization is being applied in these three institutions among many others.
Liberal morality rejects transcendence theory of morals, traditions and natural law and rather
bases morality on greatest happiness principle, social experimentation and consequences.
Many western countries are achieving the liberalization through law and pressure groups such
as NGOs or celebrities. For example, in Britain forced sexual indoctrination in British schools has
been achieved
17
. From September 2020 all secondary schools have been required to teach
pupils about sexual orientation and gender identity, and all primary schools have been required
to teach about different families, which can include LGBT families. For example, Denmark much
like China is forcefully indoctrinating refugees, exploiting their helplessness. Starting at the age
of 1, “ghetto children” must be separated from their families for at least 25 hours a week, not
including nap time, for mandatory instruction in “Danish values,” including the traditions of
Christmas and Easter, and Danish language. Noncompliance could result in a stoppage of
welfare payments, saying that if families there do not willingly merge into the country’s
mainstream, they should be compelled
18
. Going back to the United Kingdom, atheistic
indoctrination or forced secularization is being also promoted in a larger word view of the
individual and the society. For example, the teaching of evolution is compulsory in publicly
17
Twocock, Paul. “Historic Announcement on LGBT Inclusion in England’s Schools.” Stonewall, name, 3 Apr.
2019, www.stonewall.org.uk/about-us/news/historic-announcement-lgbt-inclusion-england%E2%80%99s-schools.
18
Lima, Mauricio. “In Denmark, Harsh New Laws for Immigrant ‘Ghettos.’” The New York Times, 2 July 2018,
www.nytimes.com/2018/07/01/world/europe/denmark-immigrant-ghettos.html.
Page | 12
funded schools in UK
19
. Many countries of Europe such as France, Sweden, Austria etc. have
adopted policies against Hijab or Burqa. France has recently taken a step further in western
liberalization. France is now pressuring the Muslims to sign French values charter which may
directly lead to abandoning of many Islamic rules and practices from Muslim lives.
Classical conservatism enforces the need for authority and social control, tradition and welfare
for the less fortunate ones. It rejects overreliance on individual rationality as it may be
disruptive to collective progress and welfare. Laisse-Faire conservatism which is also called
classical liberalism emphasizes the need for individual freedom and limits of government
power. These both support private property and need of limitations on government control. As
part of loyalty to tradition British education also prevents the British people from self-guilt and
self-remorse by systematically ignoring British imperial atrocities. Only 19% of British are
ashamed of British imperialism
20
21
. Historically both liberalism and conservatism have been
opposed to Marxism, unlike today where sometimes liberalism has been often synonymous
with socialist Marxism.
Communism is a representation of Marxism. Marxist communism thinks that man is irrational
and thus needs to be controlled so individual freedom is curtailed. A modern example of this is
how China is persecuting the Uyghur Muslims and Tibetans. Marxism states that the society has
no obligation to be loyal to the ruling capitalist class. Communism is thus violent, totalitarian
because it aims to control all aspects of citizens' life. Mass murder, crimes against humanity,
genocide, forced starvation, rejection of privacy and creating amoral human beings are the
achievements of communism and these continue to be practiced by the Chinese communist
party starting from Mao. Marxism rejects private property and enforces the idea of communal
19
House of Commons. February 27, 2006. col. 518W–519W.
20
Booth, Robert. “UK More Nostalgic for Empire than Other Ex-Colonial Powers.” The Guardian, The Guardian,
11 Mar. 2020, www.theguardian.com/world/2020/mar/11/uk-more-nostalgic-for-empire-than-other-ex-colonial-
powers.
21
Heath, Deana. “British Empire Is Still Being Whitewashed by the School Curriculum – Historian on Why This
Must Change.” The Conversation, 2 Nov. 2018, theconversation.com/british-empire-is-still-being-whitewashed-by-
the-school-curriculum-historian-on-why-this-must-change-105250.
Page | 13
property. This means community as a whole will own property and everyone will share. Marx
envisioned a utopia and ceasing of governance and state as society will achieve this communal
wealth. While Marx thought of communal power Lenin rejected the idea and limited power
within a handful of elites who will protect the communism revolution. This has been the
communist ruling elite historically. As communism rejected private property, individual
rationality and nationalism it impeded economic growth, creativity and fervor nationalist
sentiments in the Soviet bloc that led to the fall of Soviet Union. However modern Chinese
communism has accepted some extent of private property, very limited individual rationality
and wholescale Han nationalism.
If in an organization there is no respect for hierarchy often chaos will be the result. Feminism is
that maker of chaos
22
against historical and evolutionary patriarchal social and political
constructs. Feminism is against the natural harmony of human society and relationship because
it seeks to destroy gender natural interdependency. Feminism gives false identity about women
similar to how social Darwinism gave false identity to white ethnicities of Europe which falsely
justified in their minds colonialism.
Feminism proposes some ideas on power and wealth so it can be stated as political ideology as
well. Feminism legitimizes political acts and political institutions by act of political women
empowerment as leaders and decision makers. Such female leaders and female dominated
institutions, in the name of women empowerment, are meant to propose dominantly women
centric policies, rather than human policies. Feminism creates the sensationalist ontology of
woman victimhood to rally society and men to become irrational and bias towards this feminist
agenda.
Feminism is about feminine individualism in the social level and matriarchy
23
in the political
level. Corporations want a vast source of affordable workaholic labor which feminism offers
and designs for. If women and society were marriage and family oriented, it would not be
22
Lo! this is of the guile of you women. Lo! the guile of you is very great. (Quran 12:28)
23
Dale, Jennifer, & Peggy Foster, Feminists and State Welfare (London: Routledge and Kegan Paul, 1986 (ISBN 0-
7102-0278-4)), p. 52 ("radical feminist theory .... could, indeed, be said to point in the direction of 'matriarchy'") and
see pp. 52–53 (political separatism).
Page | 14
possible. Even if man and woman were equal in biology and psychology, which they are not as
man is the stronger sex, still we would need a hierarchy due to the demand and need for
human formation of family as an institution and organization. Historically and evolutionary man
has always provided this leadership.
Feminism gives the false hope of woman empowerment because in the unfair capitalist system
the income that a working woman generates is never sufficient and due to being the weaker
sex the woman is a victim of feminist capitalism, suffering from immense stress and health
issues, which some women may hide or try to treat in the self-deceived pursuit of achievement
and influencer attitude. Feminism imbues false unachievable hope in the feminine psychology
and is an extension of capitalist exploitation of women.
One may say I am misinformed about feminism. However, feminism has no religious book
which acts as an authority but rather feminism is defined by the dominant trend expressed by
the dominant activists whose activism in form of slogans, comments, posts and writings etc. can
be found online and offline. After going through enough of these resources i.e., a collection of
feminist visions, beliefs, acts, behavior, my position can be established strongly.
Political Islam is rational, moral and just. As Islam has put intense emphasis on reason, morality
and justice then it follows that these are the building blocks and policy creators in political
Islam. Political Islam is not irrational like monarchy, mob rule like democracy neither violent like
communism. Islam neither believes that man is inherently good and rational so freedom must
be given preferably, nor believes that man is selfish and greedy so control must be asserted
always. The real view is in-between: Man has idea of both good and bad
24
and that he must
choose
25
, and it is the duty of Islamic system to fashion laws which help man choose good over
evil. Also, man is potentially rational and also beastly. It is not the case that he is always guided
by reason that his individual liberty will be good and perfected and neither it is true that he is
24
And inspired it (with conscience of) what is wrong for it and (what is) right for it. (Quran 91:8)
25
And have shown him the two ways? (Quran 90:10)
Page | 15
always guided by beastly impulse that he needs to be monitored and guided always. Islam thus
proposes a balanced guidance, so man realizes his rational and spiritual nature and suppresses
his beastly and evil impulsive nature.
The government in Islam is a representative of God’s authority, the source of which is Divine
scripture and revelation, theocratic and juristic inquiry of the sources and its development with
changing times. To achieve this, Islam established theocratic meritocracy based on piety and
merit. With this Islam rejects mob rule democracy, violent communism and irrational
democracy. No form of government can be represented truly by the inefficient many or
privileged few, so Islam proposes the election of the righteous and merit by the righteous and
merit.
Limitations of Islamic freedom of expression somewhat resembles the European convention of
human rights. For example, Islam allows constructive expression of ideas and opinions and
constructive criticisms. So, Islam allows some of those rights such as practice worship and
observance, as long as it does not conflict with Islamic governance i.e., state laws, legal system
and issues of fundamental importance. Associations/assemblies harboring elements of
incitement and criminal activities must be abandoned through the force of law or force of arms.
We must look at the purpose of such freedom: it is to promote solidarity, progress and achieve
solution and awareness.
As to changing of religion in Islam from Muslim to Christian or Jew etc. is not allowed, because
Islam is not only a religion for worship but also a government and jurisdiction. Allowing Muslims
to change religion will destabilize Islamic government, jurisdiction and will facilitate the
formation of un-Islamic jurisdiction. It is like in a state people changing their political beliefs
challenging the existence system. Soviet Russia persecuted proponent of democracy, and USA
persecuted proponents of Communists under special law and tribunals during the cold war era.
This rationale can also restrict freedom of thought i.e., bad influence on the mind may threaten
stability, morality and governance.
Page | 16
In Islam everyone has right to take part in Islamic state’s functioning both Muslim or non-
Muslim as long as they understand and uphold the Islamic system. Can a non-Muslim become
the ruler of people? This is like asking can a foreigner become a head of state. In secular
nationalist system nationality is priority and similarly in Islamic system piety and merit are the
priorities. This is justified because only a pious ruler can be a barrier against corruption. Lack of
godliness and piety in secular system is an essential reason of people’s suffering. Hence Islam
demanding a Muslim pious ruler is not supremacy of Islam or Muslims but due to the wellbeing
of the people. Another reason that goes with piety is knowledge of the religion as well. A
person lacking Islamic knowledge is inefficient to attend to the matters of Islamic rule.
Islam allows private property. Islamic law also details how, when, who and what type of private
property can be owned, managed and disposed of. Islam does not allow hoarding of
business/trade generated wealth and property, or which are potentially tradable, so it has
imposed taxes so that the rich spends on the poor and other needs of the society. In Islam, as
the rich has used God's bounties and the society to achieve their richness then it follows that
they have a duty to God and the society
26
. Paying taxes
27
through Zakat
28
, Khumus and Jizya are
the demonstrations and fulfillment of this duty. Islam rejects governmental oppression over
private property, so the Islamic government just cannot levy any tax it wants or appropriate
private property however and whenever it wishes.
26
Imam Ali (AS) said, ‘He upon whom the bounties of Allah are plenty, people’s needs from him increase
accordingly. So, if he uses them for Allah in the way he must do so, He causes them to continue and remain. But if
he does not use them in the way that he must, He will make them cease and perish.’[Nahj al-Balagha, Saying 372]
27
In simple terms tax is collection of wealth from people and businesses. Quran and Hadith clearly obligate
collection of wealth from rich and distributing it to the poor so Islam proposes a taxation model of divine origin,
because not everyone will be rich due to various factors biological and social, but every rich can make sure the
needy and unfortunate ones are taken care of thereby eradicating class conflict which has driven historical
materialism.
28
Imam al-Sadiq (AS) said, 'The alms-tax has been prescribed as a test for the rich and an aid to the poor. If people
duly paid the alms-tax on their wealth, there would not remain a single poor or needy Muslim, and all would suffice
themselves through what Allah has prescribed. Verily people are only impoverished, needy, hungry and naked as a
result of the sins of the wealthy.’[al-Faqih, v. 2, p. 7, no. 1579]
Page | 17
Islam rejects monarchial ownership of property because monarchy is rejected in Islam,
monarchial inheritance is completed against dictates of Islamic law, and that all property
belongs to God, and it is through His guidance that we can approach His property. Historically
might was the justification to own land. If one was mighty, he could go to any people's land and
own it. However, if a land is vacant and no evidence of its ownership exists then the first person
to claim it owns it but if many people come over an unowned land, then they can own it
through a contract by sharing or any equitable methods of utilization. Fairly owned land can be
offered for sale as well to those who wish to buy it and use it in Halal manner.
Land ownership comes with duties and responsibilities. For example, such land cannot be for
public interest so in that case no one owns it, but the community owns it. The government will
administer so that the community benefits from it. If it is not in the public interest, then the
land is either used for income generation or generation of natural resources or any other
consumable products such as crops. In such cases it needs to be taxed. So, in Islam property is
either communal or private and that every income or resource generating property must
contribute to the wider society through Islamic tax.
Islamic Leadership
Weber stated leadership are three kinds: charismatic, legal-rational and traditional. Plato added
wise king making it four kinds of leader. Prophet of Islam was legal-rational, charismatic,
traditional because he upheld the tradition of Abraham and also, he was wise. The twelve
imams of Islam are also such. In the absence of the twelfth imam the Islamic leader who
represents the twelfth imam must be wise in religion and governance, legal-rational as in
understanding Islamic law and upholding the law and justice of God, and being able to reason,
and traditional in following Islam's legal heritage. Charisma is more of a gift than earned. In
Page | 18
Islam, charismatic leader's undue influence and abuse of power is checked by his requirement
to be legal-rational
29
30
31
, wise
32
and just
33
.
Leadership is not only about inspiring others but also taking tough decisions, taking intelligent
and rational decisions, it’s about managing and deciding on important aspects of people's lives
such as finance, health, jobs, economy, legal issues and judgements, wars, peace etc.
Leadership is not only about simply running an office and few people's daily paper works.
Leadership thus needs all the qualities of men specially that of rights and justice, while the
women are more suited to position of care and friendly interaction under men’s leadership.
29
O you who have believed, be persistently standing firm in justice, witnesses for Allah , even if it be against
yourselves or parents and relatives….(Quran 4:135)
30
Imam Ali (AS) said, ‘Justice is the base that supports the whole world.’[Matalib al-Sa’ul, p. 61]
31
Imam Ali (AS) said, ‘Justice is the regulatory system of authority.’[Ghurar al-Hikam, no. 774]
32
The Prophet (SAWA) said, ‘Knowledge is the root of all good whereas ignorance is the root of all evil.’[Bihar al -
Anwar, v. 77, p. 175, no. 9]
33
The Prophet (SAWA) said, ‘The first to enter the Fire will be a domineering ruler who did not maintain justice…
(`Uyoun Akhbar al-Ridha (AS), v. 2, p. 28, no. 20)
Page | 19
Islamic leadership is based on piety
34
35
36
and merit
37
38
39
and it is patriarchal
40
41
42
43
.
Patriarchy is also about power and authority so it can be approached from three major
perspectives: political, socio-economic, and familial. Patriarchy arises from sex and gender
differences
44
and so such differences imply the following: a) Authority shall be for men in all
organizational capacities, that men will be preferred in employment and in education and men
will have guardianship in legally defined areas b) Patriarchy must take care of the woman’s
mental, physical, spiritual and financial wellbeing and lessen their burden from various social
roles.
34
Indeed, the most noble of you in the sight of Allah is the most righteous of you. (Quran 49:13)
35
Imam al-Baqir (AS) said, ‘The Godwary people have the simplest of provisions in this world, but are the most
helpful to you with their provisions, you only have to mention and they help you, and if you forget [your needs] they
remind you. They are communicators of Allah’s commands, guardians over Allah’s commands, they have confined
their love to loving their Lord. (al-Kafi, v. 2, p. 133, no. 16)
36
Imam al-Baqir (AS) said, ‘The Commander of the Faithful (AS) would say, ‘The Godwary people have signs that
they are known by: speaking truthfully, returning trusts, fulfilling promises... [ al-Khisal, p. 483, no. 56]
37
They said: "How can he exercise authority over us when we are better fitted than he to exercise authority, and he
is not even gifted, with wealth in abundance?" He said: "Allah hath Chosen him above you, and hath gifted him
abundantly with knowledge and bodily prowess… (Quran 2:247). Bodily prowess is required if the Islamic ruler is
going to be engaged in actual battle.
38
The Prophet (SAWA) said, ‘The worthiest of people are those who have the most knowledge, and the least of
them in worth are those with the least knowledge.’[Amali al-Saduq, p. 27, no. 4]
39
The Prophet (SAWA) said, ‘The people who are closest to the rank of prophethood are the people of knowledge
and striving.’[al-Mahajjat al-Baydha, v. 1, p. 14]
40
Rahman, M.M. (2021). Why Society Needs Patriarchy: A Scientific and Social Justification. Social Sciences,
[online] 10(5), p.229. Available at: http://www.socialsciencesjournal.org/article/202/10.11648.j.ss.20211005.14.
41
Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for
maintenance] from their wealth. (Quran 4:34)
42
A nation with a woman ruler will never succeed. (Bukhari).
43
Imam Baqir says “Women do not have to call to prayer or perform iqamah, or lead Friday prayer, or become
judges or (lead) governance” (Musatanad Al-Shia)
44
Rahman, M.M. (2020). Female Political Leadership in Islam. www.academia.edu. [online] Available at:
https://www.academia.edu/49262796/Female_Political_Leadership_in_Islam [Accessed 20 Oct. 2021].
Page | 20
In Islam leadership is not only structural but also characterial because Islam believes that man
cannot be and/or remain moral without God and His religion
45
. The certain belief, not only
simple knowledge, that there is a merciful and loving God or just and vengeful God who is
seeing my actions, knows my thoughts and to whom I am accountable for my beliefs and
actions act as a better moral compass, motivator, and deterrence than social factors or
Darwinian morality. God and divine guidance are the greatest and most powerful control
factors. This is because no other moral theory, principle or rule except God proposes for man
the necessity to submit to a higher power and see himself as lowly and inferior, and as long as
this belief of humility and inferiority does not take hold of man and as long as humanity is not
certain of an inescapable accountability and judgement, he will ever be highly vulnerable to
deviance and evil.
The Islamic leadership is based on theocratic meritocracy. This means piety and justness are
required. So Political Islam is based on theocratic meritocracy as the examples of Prophet
Abraham, Prophet Muhammad and Imam Ali show. God appointed Abraham as an Imam.
Imamate in Islam is the concept of leadership in which both political and religious leadership
conjoin. God rejected plea of Abraham that any of his descendant man or woman could be a
leader suggesting only the pious could hold this position
46
. Prophet of Islam for example never
was under an equal or superior leader because he was the theocratic meritocratic leader. Also
consider mankind was one community and God sent prophets to rule over them
47
. The only
ideology that Islamic jurisdiction proposes, supports and enforces is then political Islam on
theocratic meritocracy. The support for this ideological monolithism
48
is a must to suppress
45
Rahman, M.M. (2021a). Being Moral: Do We Need God and Religion. www.academia.edu. [online] Available at:
https://www.academia.edu/50583122/Being_Moral_Do_We_Need_God_and_Religion [Accessed 20 Oct. 2021].
46
And [mention, O Muhammad], when Abraham was tried by his Lord with commands and he fulfilled them. [
Allah ] said, "Indeed, I will make you a leader/Imam for the people." [Abraham] said, "And of my descendants?" [
Allah ] said, "My covenant does not include the wrongdoers." (Quran 2:124)
47
Humanity had once been one community. Then Allah raised prophets as deliverers of good news and as warners,
and revealed to them the Scriptures in truth to judge among people regarding their disputes… (Quran 2:213)
48
Cold war can be best defined by a continued struggle for ideological monolithism such that America and Soviet
Union both aggressively tried to preserve each other’s ideological foundations against each other. Even after the fall
of Soviet Union America and China continued to preserve their political ideological identities. For example in 2005
Page | 21
conflict among the political and social institutions, among various members of the government
and between the Islamic leadership and the public servants.
One can say Prophets were obeyed because they were prophets and thus, they cannot be used
to extend the establishment of Islamic leadership among common Muslim men. First of all,
prophets showed us the principle of Islamic leadership and governance, so they are examples.
Nothing says that their model of theocratic meritocracy is to be abandoned. What is exchanged
by abandoning this? The sinful satanic model of secularism. Secondly Quran obligates
judgement by Shariah law
49
, and this cannot be achieved except by an Islamic leadership as
judgmental power also implies political authority. This has been demonstrated by Prophets,
Imam Ali and the first three caliphs. So Islamic leadership is a necessity.
The Islamic leader must be close to people. He must know the needs and psychology of the
people and the Islamic society. He must be ready to make changes
50
by Islamic guidance and
must respond efficiently and effectively to people’s grievances. He should allow healthy and
constructive debate
51
among the public
52
53
54
.
a senior of Uni of Dartmouth was questioned by agents of homeland security because he was collecting information
on communism, specially seeking to possess Mao’s little Red Book.
49
And whoever does not judge by what Allah has revealed - then it is those who are the disbelievers /wrongdoers.
(Quran 5:44-45)
50
Imam Ali (AS) said, ‘Verily the one who knows the vicissitudes of time will not neglect preparation.’[al-Tawhid,
p. 74, no. 27]
51
Imam Ali (AS) said, 'He who obstinately holds his own opinion is ruined, and he who consults other people shares
in their collective understanding.’[Nahj al-Balagha, Saying 161]
52
Imam Ali (AS) said, ‘Allah, most High, has made obligatory upon the leaders of justice [truth] to equate
themselves with the weak ones from among of people, so that the poor cannot be intimidated as a result of his
poverty.’[Nahj al-Balagha, Sermon 209]
53
Imam al-Hadi (AS) said, ‘He who gives you both his affection and his good opinion is entitled to your giving him
your obedience.’[Bihar al-Anwar, p. 365, no. 4]
54
The Prophet (SAWA) said, ‘Accept the truth from anyone who comes to you with it - be he lowly or noble, even
if he himself is detestable to you. And reject falsehood from anyone who comes to you with it - be he lowly or
noble, even if he is beloved to you.’[Kanz al-`Ummal, no. 43152]
Page | 22
Social change under Islamic leadership is guided to maintain and/or further develop security,
hygiene, aesthetics, and the character. Under Islamic leadership social inequities are removed
by adopting policies and laws of Islam and making legal access easy for everyone. Social change
which refers to the transformation of culture, behavior, social institutions, and social structure
over time, must go through a filter of rationalization and Islamic law, rather than trend and
populism. The Islamic leadership must adopt policies and frameworks to embrace and spread
Islam rather than values and models which may overwhelm and suppress Islam.
A number of Islamic jurists with spiritual and moral character
55
are elected by the intellectual,
upright and moral members of the public. This is an effective pathway in realizing the concept
of Wilayat Faqih by the revolutionary Imam Khomeini. The essential reason of the failure of
secular party-based system is lack of God fearing, moral guidance and intellectual aptitude
56
. In
Islamic jurisdiction learnt pious clerics who have had experience to teaching and peer reviewed
shall come forth as part of fard kifaya and all of them, by lottery, select a certain number of
candidates (twelve because imams are twelve) who will be given equal funding from Islamic
treasury to spend on their election campaign. From these candidates the intellectual and
upright citizens will choose the members of the guardian council who will choose the supreme
leader.
For the voters they must have a record of being morally upright, and that is, for Muslims, must
be practicing and have no recorded major sins or legal crimes, and for non-Muslims, must never
have performed immoral acts or legal crimes such as gambling, drinking, cheating, fraud,
murder, corruption etc. Intellectual ability is established by good results in undergraduate
degree, various social activities, journal publications etc.
55
A real jurist is a person who is ascetic from this world, who craves for the Hereafter, and strongly holds onto the
tradition of the Prophet (SAWA).’[al-Kafi, v. 1, p. 70, no. 8]
56
Love for this world is the root of all evil (Dhammud Dunya, Hadith: 9, Shu’abul Iman, Hadith: 10019, sound
Hadith) The consequences of this unholy love of world (money, women and powers) are the reasons for secular
systems’ failure.
Page | 23
So, in short, the process of appointing leadership is based on the intellectuals both voters and
candidates:
1. Voters
▪ No criminal record
▪ No record of immoral acts such as alcohol, adultery, robbery, fraud,
corruption cheat, murder etc.
▪ Must have Islamic understanding if Muslim
▪ Must never have supported Islamophobia or anyone who supported
such, if non-Muslim
▪ Must finish university education with good results and other supportive
evidence
▪ Must never have supported un-Islamic personalities and culture
2. Candidates
▪ Must have mastery over Islamic law and theology
▪ Must have at least a master’s degree in at least one of the social sciences
subjects
▪ No criminal record
▪ No record of immoral acts such as alcohol, adultery, robbery, fraud,
corruption cheat, murder etc.
3. Process
▪ At timed interval candidates must come forward and declare themselves.
▪ Islamic treasury must fund each candidate equally.
▪ External funding is prohibited such as from businesses or individuals, but
they can donate to Islamic treasury.
▪ The common voters must choose a certain number of candidates and
these candidates will choose the supreme leader. This body of chosen
candidates will appoint the rest of the government, judges and the
security heads.
Page | 24
The Guardian council will define the Holy Law and will give the charge of adjudication to the
judiciary, a selected body of competent jurists. The executive heads of governmental political
and social institutions are chosen by the Guardian and the Shura Council from relevant civil
servants and will obey the judiciary in the case of implementation of law. This is because the
civil servants have institutional knowledge and memory unlike politically elected and appointed
candidate. Any disputes in the government system or branches where there are no resolving
law/rules/protocols will be presented to the relevant court.
The imam is superior to the Guardian Council and the Guardian Council is superior to the Shura
Council. The Imam and the Guardian Council are the most ultimate experts in interpreting Islam
and its legislation. The judiciary is appointed by the Guardian Council and Shura Council in
consultation. The judiciary is independent means while adjudication of a case it must not be
moved or influenced by others. However, the unsatisfied member of the public can appeal to
the imam or the Guardian Council the merits of judgment from the judiciary. The public
servants are the members of the governmental institutions must be legally rational that means
they must follow the rules, protocols and the laws of Islamic jurisdiction and their documents of
incorporation. They must not follow any dictates of the Imam or the Guardian Council or the
judiciary or the Shura Council which result in textually established sin. The members of the
public can appeal against any member of the government from any levels based on Islamic
laws, Islamic constitution, documents of incorporations of the institutions and concept of
equity. What this means is Islamic leadership does not act on whims and impulses.
To what extent the Islamic leadership, i.e., imam and the Guardian Council, be obeyed? The
Sunnis may say in everything that is good, but this can make the leadership very dictatorial.
When Quran says obey people in authority it does not mean just any authority because this
authority for Shias is the Imamate of Ahl Bayt. God would not just equate any authority with His
and His Prophet’s obedience. As to how much the Islamic leadership is obeyed is elaborated in
the second part “Legal System” section “Legislation”. In short Islamic leadership have
limitations in demanding obedience.
Page | 25
The Islamic constitution is a legal document which guides the Islamic government how to
exercise its power and withhold it from being dictator over the people. It is a document of
balance and trust between God and His vicegerent and between Islamic government and the
people. In the absence of the twelfth imam, it is a piece of document to protect the common
people against unfounded charges brought to eliminate enemies and against Islamic judges too
responsive to the voice of higher authority. The core constitution of Islam and Islamic
jurisdiction is the Quran and established Sunnah. Any legislation, rule, norm or practice of any
governmental or private institution providing services to the common people, which goes
against Quran and Sunnah can be removed.
Some fundamental features of Islamic constitution, modelled after constitution of Medina are
a) Islamic state is a system based on belief in One God, His exclusive sovereignty and right to
legislate through Quran and Sunnah, and the necessity of justice and its fundamental role in
setting forth the laws b) In the Islamic state the entire edifice of government is based on the
protection of Islam, justice, life, wealth, honor, lineage and intellect, its implementation, and
the welfare of the Muslims and the non-Muslims both citizens and foreign residents c) The
Guardian council along with the help of other scientific, security and technological experts will
form the outline of the government institutions and nature of the private institutions and
organizations that will work in the country d) All institutions of government will be made on the
basis of Islamic progress, the need of the people, the survival of the land, its resources, its
boundaries, its air and its sea and rivers e) Islamic state will not see race, ethnicity, tribe or
nationality to determine political and public offices, rather only piety for Muslim, moral
uprightness for non-Muslims and merit f) It is the duty of the members of governmental
organizations to report and/or disobey any policy, command, dictate from the government
which violates the principles of justice, honesty and integrity g) Allow thriving of constructive
criticism but censor insult, threat and proven propaganda. Ensure that criticism of any kind is
expressed in clearly logical argument, or else it becomes similar to propaganda, threat and/or
insult h) All religious minorities are free to perform their religious rites and ceremonies and to
act according to their own canon in matters of personal affairs and religious education provided
it does not breach or threaten the security and stability of the Islamic republic i) everyone has
Page | 26
the right to life, right to justice, right to sustenance and livelihood, right to knowledge,
education and information, right to welfare and charity, right to marriage and family, right to
self-defense against injustice, right to own property, right to participate in Islamic election and
freedom from liability j) No one can be detained without sufficient evidence (primae facie or
circumstantial) and punished without trial which cannot be delayed, and that everyone at trial
must be heard equally by a competent and fair tribunal k) Right of freedom of expression,
based on Islamic law, can be curtailed for the sake of national security, public safety, prevention
of disorder and crimes, protection of health, morals, rights and freedom of others.
Political Parties
According to V.O Roy western study of political parties have put forth the view that political
parties represent the mass's preference and then are able to integrate its political beliefs and
behavior into the government. There is a big gap between the mass's preference and the
detailed unfiltered political beliefs and behavior that a party may bring into governance. It is
never one to one. The party organization and member psychology are also an issue of
increasing fragmentation and disarray.
According to Edmund Burke party consists of body of men united by their joint endeavors to
promote national interest upon some principle which they all agree. Is the party united and
monolithic? Is it influenced by outsiders? Who decides the national interest? Are the elites of
the party who decide this? This means party's interest is the national interest. What is this
principle and how is it validated? It then seems the concept of party is an elitist form of
governance, full of warnings, cracks and potential instability.
Party based democratic system is supposed to maintain order such as provide orderly transfer
of power. However, in truth most democracies in the world or alleged democracies have failed
to achieve this as party rivalries, both internal and across, often have brought the nation to the
brink of civil war. Party based political system is also a threat to the honest, effective and
proper functioning of the public officials as often these officials must become partisan and bias.
Page | 27
The reality of party based political system can be summarized as follows. Modern democratic
and election systems are broken and impotent which mean voters are often unqualified,
gullible, sentimental, ignorant, political parties are paid by the corporatocracy, electoral doesn't
mean majority will and majority will is also not checked against, citizens submit themselves to
few elite egoist people who are themselves chosen by their inter party envious politics, the
party system which is divisive at the religious, national and social levels, and most importantly
democracy is baseless of reason, morality and divine guidance. Democracy thus lacks any
purpose except to divide people, win votes and empower capitalist-politician marriage. So it is
less of a truth that existence of opposition parties act as checks on power, rather opposition
parties often end up in rivalry, propaganda and this become impedance to a healthy and moral
political atmosphere. So, the Quranic concept of Shura cannot be applied to democracy or
parliamentary sovereignty.
Islam rejects party-based politics. If there is any organization of people to represent political
and policy viewpoints in an Islamic jurisdiction then all their beliefs, acts and protocols of
incorporation and activity must be based on Islam, and that no rivalry should exist among
brothers
57
. Their differences can only be justified by reason and better policy. From the
structural perspective it's members must be moral, upright and Islamic. It must not take any
donations from the people because that would be tantamount to bribery to pursue the
interests of its donors. Altruistic apolitical organizations can accept donations from the people
but not Islamic political parties/organizations who aim to govern.
If there are parties in any Islamic jurisdiction it must always be under the system of theocratic
meritocracy. In political Islam this acts as the ultimate checks and balances, a guide and moral
pillar for the Islamic state. These checks and balances best work if Islamic standpoints and
philosophy are justified and explained on wisdom and rationale, especially against unislamic
57
Cooperate with one another in goodness and righteousness, and do not cooperate in sin and transgression. And be
mindful of Allah. Surely Allah is severe in punishment. (Quran 5:2)
Page | 28
standpoints and philosophy
58
. Such wisdom and rationale must both be defensive of Islamic
texts, standpoints and philosophy and offensive against unislamic standpoints and philosophy.
So, while political Islam enforces principles (of justice, morals and knowledge), party based
secular system enforces the agenda of winning vote (through ethnic, nationalist, racist,
corporate and even false appeals). This often results in among other things, civil strife,
deadlock, unstable coalition and shutdown of government.
While secular electoral systems are almost always biased and can be designed to devour the
weaker party or a candidate, such as American electoral system or French system of 1951,
Islamic system is about giving every Islamic political organization or candidate an equitable and
fair chance of appealing to the people. There is no favor of a larger party or candidate over the
smaller one. Every periodic theocratic meritocratic election (consultation), everyone is given
equal funding and equal chance to present themselves to the people. It may be the smaller
party, or the new candidate have more to offer in terms of knowledge, morals and policy than
others. The candidates of the party, who shall be members of the Islamic legislative, must be
well versed in Islamic law and must have at least a master’s degree in a social science and also
pass the Islamic moral test.
The Islamic political party in a secular state must be one. Existence of various Islamic political
parties in a secular state means Islamic revival is hopeless. If we cannot unite and hold
ourselves together, how will we unite and hold the country? However, not anyone can form an
Islamic party. There must be some rules to follow before Islamic party is formed: belief in
political Islam which functions through theocratic meritocracy, rejection of secularism,
feminism and all other forms of political powers. Active members who will work in the grass
root or in the policy making roles of the party must have university degree and master’s degree
finished with good results, respectively, have upright character, believe in the power of
argument, debate and reason and the Islamic social construct of patriarchy, welfare system,
and justice over ethnicity, culture and blood relationship. Every active member of the party
58
Imam Ali (AS) said, ‘Knowledge commands, action drives, and the carnal soul is the obstinate mount.’(Tuhaf al -
`Uqoul, no. 208)
Page | 29
must build their psychology and functional aptitude through the guidance and example of
Quran, Prophet and the Ahl Bayt.
The Islamic party organization may be federal or unitary and the party must reach out to
communities of the country either or all to spread Islam, understand their problems, educate
them how Islamic governance will deal with their issues and being innovative and using
resources efficiently and effectively
59
, explain and criticize secular system, secular government,
secular politicians and secular policies. The Islamic party, under normal circumstances and
security, should make all their donations public and publish the salaries of its top members. The
members should be physically fit in the case of self-defense.
Institutions
In village life in third world countries and in early primitive societies the need for institutions
was almost non-existent. The individual and social life was simple, and issues lacked deep
thought, systematic and rational approach or any form of algorithmic implementation. social
issues were often solved in village meetings with shallow understanding, appealing to ancestral
beliefs, impulse and uncritical intuition. Mob rule and miniature battle were often the model of
implementing justice. As society developed and people became intellectually mature the need
of institution became evident. Institutions thus act as problem solving entities in intellectually
developed society. Institution is organization of people based on rules and processes who aim
to pursue the purpose of the government and the society. It is thus essential that institutions
consist of able people who can run and sustain them. For Islamic institutions it must have able
people, it's functioning must reflect pursuit of Islamic objectives and purpose and it's evolution
must be guided by religion and reason.
59
Imam al-Sadiq (AS) said, ‘Bounties only remain when accompanied by three things: knowledge of what Allah has
made incumbent with respect to them, fulfilment of thanks for them, and striving with them.’[Tuhaf al-`Uqoul, p.
318]
Page | 30
Democratic institutional system has enforced the rule of law, separation of powers and
electoral process. These are hoped to attain some equity and justice and give the people power
and access to justice. However, no system like Islam emphasizes the need for morality, reason
and justice in the character
60
of the political member, political participant and political
institution. Mostly, the members of the governmental institutions, who lack morals, reason and
sense of justice will not be useful in the functioning of the political system
61
.
As political authority is practiced through political institutions and as institutions are processes
planned and implemented by organized people i.e., organizations so it follows that the
institutions in political Islamic system must be filtered through the laws, norms, objectives and
purpose of Islamic law and Quran. The people of such organizations must be based on relevant
skills and upright morals. In the Islamic institutional processes and organizations creativity,
knowledge, skills, efficiency, morals, equity and justness are foundational pillars but fraud,
corruption, bribe, political, preference of personal or blood relationships
62
are destructive
elements and rejected. The Islamic texts supporting these two positions are so many that it is
not worth giving here.
Islamic political institutions and organizations must primarily measure policies based on
achievability and functionality of Islamic objectives and purpose, rooted in text or it's rational,
then economic and financial motives as much as allowed by Islamic law. Such organizations of
political Islam should resort to or employ experts to research on social sciences through Islamic
60
The Prophet (SAWA) said, 'Shall I tell you who is the toughest and strongest from among you?’ They replied,
‘Yes, O Prophet of Allah, do tell us’, so the Prophet (SAWA) said, ‘The strongest and toughest of you is he who,
when he is happy, his happiness does not lead him to committing a sin or anything wrong, and when he gets angry,
his anger does not prevent him from speaking the truth, and when he is empowered in any way, he does not take
hold of that which is not lawfully his.’[Ma`ani al-Akhbar, p. 366, no. 1]
61
They used not to prevent one another from wrongdoing that they did. How wretched was that which they were
doing. (Quran 5:79)
62
Imam Ali’s nephew came asking for an advanced installment from Islamic treasury but Imam Ali (a) refused and
when the young man persisted, he said: "No, my son! Not until all the others get their share." (Nahjul Balagha,
Sermon 221)
Page | 31
individual and collective textual analysis, survey, case study, ethnography, modelling and
history.
Islam, by its textual rulings and by emphasizing the essentials of character and mind, enhances
the chances of political efficacy and institutional functionalism. For example, democracy in
America has brought racists in power and which threatened the rights of minority. In India even
with the democratic process and functions the Hindutva has been able to control the judiciary
against Muslims. All these are examples of what happens when the moral system, if any, and
the political character is corrupt. Islam by focusing on the building of the political character and
by proposing moral guidance and laws of justice preserves it's institutional and organizational
system.
Political Islamic system does not need any separation of power unless necessary to distribute
burden of responsibilities. Prophet of Islam was a law giver, judge and head of Medina which
means the three branches of governance existed in him. Piety and intellectual strengths of the
Islamic officials, the various institutions and citizen's right to justice are the real checks and
balances in the Islamic rule. If one errs the rest who remain pious and merited will deal with the
misguided. For example, a judge in the judiciary is required by Islamic law to be impartial and
dutiful and any member of the public can bring complain against any public official in Islamic
jurisdiction. To achieve justice, efficacy and results the members of governmental institutions
must have their roles and positions clearly defined and demarcated.
In the Islamic political system if the Imam fails to discharge his duty on Islamic law and the
Islamic constitution, he will be removed by the Guardian Council. If the Guardian Council fails as
a whole in such it will be dismantled by the Imam and new Guardian Council will be formed. If
the parliament as a whole fails to discharge its duties based on the Islamic constitution and
other laws and mandates the imam can dismiss the parliament and new Shura Council election
held. If the Imam, the Guardian Council and the Shura Council fail in such, the Islamic military
will take over and hold relevant elections for the Guardian and Shura Council. Any citizen can
Page | 32
bring a case of "failure to perform" of the Imam, Guardian Council or the Shura Council to the
imam, Guardian Council or head of Shura Council or any Islamic court. Depending on the nature
of the complaint and the parties involved, the adjudicators will be the imam, the Guardian
Council, the Shura Council and the Islamic court respectively. This whole mechanism is based on
Quran 3:104, the notion that no one is sinless except Prophet and Ahl Bayt, and Islamic
principle of disobeying the sinners and tyrants in their sins, and protection of Islam and its
sovereignty to rule from example of Imam Hussein. Who will hold the public servants
accountable? The imam and the Guardian Council can appoint inspectors on governmental
institutions to achieve this. Of course this process of accountability must go through the Islamic
judicial process as detailed in Part 2.
The above implies that Shura council and Guardian council are different. As issues have become
too many and complex so this can be to distribute the burden of responsibilities, duties and
different rights. In accordance with the command of the Holy Quran (42:38), consultative
bodies-such as Islamic consultative, the Islamic consultative assembly, the provincial councils,
city, regions, district and village councils and the likes of them are the decision-making and
administrative organs of the country where the members of Shura Council are elected through
region-based theocratic meritocratic election. The nature of such councils throughout the
country, their duties, scope and jurisdiction, functions determined by Islamic textual guidance,
Islamic constitution, Guardian council, Shura Council and Islamic legislation in that order. Every
elected and employed official must pass the test of piety, morality and merit with respect to
their relevant offices.
The political and social institutions in Islamic jurisdiction are run on patriarchal consultative
hierarchy. Quran obligates patriarchy, hadith advises every group more than two persons must
have a leader and Quran encourages consultation. Consultation does not only mean
consultation among equals but also consultation among superior and inferior as Prophet who
being the superior often consulted with the companions who were his inferior. The purpose of
consultation is to increase solidarity, minimize rivalry, create a fertile ground for innovative
Page | 33
ideas and new solutions for consideration by the leadership. The institutions in the Islamic
jurisdiction will also make the Islamic society functional and it's functionalism is established and
measured by the contributions and results to research and the wider society.
Easton proposed that political system acts as input/output system. If we hold this perspective,
Islamic political and social institutions can be said to act similarly. These institutions whose
architecture and processes are based and guided by Islamic texts, their rationale, Islamic
constitution and their own document of incorporation, take data from their own institutions,
rational inquiry, the society and the world and produce policies and decisions and give service
to the people. The agents of these institutions thus must work with a lot of sources, documents,
legislations and guidance and establish a paper trail for accountability. We can reduce the
contents of all these to mere concepts. While then dealing with these concepts these human
agents must know how to delimitate the scope, establish priority and resolve conflict. Such
governmental and public institutions must establish a clear effective and efficient algorithm for
information flow within the institution and in and out of the institution.
Communication is vital part of this institutional algorithm. Developmental, evolutionary and
problem-solving policies and rules of these institutions related to strategy, tactics, pivotal and
decision-making points are based on the Islamic legal maxim of seeking easiness and removing
hardship, achieving coherency and sustainability of Islamic laws, Islamic legislation, rules and
protocols, minimizing exploitation and injustice of the system, and realizing objectives and
purpose of Islamic texts relevant to the institution.
The political and social institutions and its members are either governmental or public.
Governmental means Islamic treasury finances these and their members. Public means such
institutions may be a demonstration of Quran 3:104. As Islamic treasury must pay them and as
these institutions serve specialized purpose and as their members are there to help implement
the purpose and policies of Islamic constitution and the Islamic legislation and to serve people,
then it follows that they need merit and morals. So, membership in governmental institutions
need upright morals and relevant merits and not party loyalty or personal favors, and this is
Page | 34
why such members must earn their positions through various means rather than be appointed
randomly by the Islamic guardian council or Islamic shura council.
Merit for members of the Guardian council is established differently from merits of the civil
servants. For Guardian Council first and foremost the member must be a cleric who has been
peer reviewed by other clerics of equal status. Such a cleric must have mastery of Arabic
language, Islamic logic and philosophy, Islam theology, Islamic Jurisprudence and Islamic law
and also have published articles in any of the social sciences subjects. Also, their writings must
never undermine political Islam and Islamic textual guidance nor support secularism in any
flavor or smell. This mechanism demands the development and maturity of a clerical system of
education who will enter this system and train to become a cleric.
For members of the Shura Council and the civil servants they must finish undergraduate degree
in any social sciences, must have taken a specialist certificate in Islamic law and must pass an
entrance exam on Islamic law, Islamic history, critical thinking, international law and analysis of
Islamophobic ideologies. Specialist entrance exam subjects may be designed as per needs of
time.
The legislative and the judicial institutions must develop clear rationale, and fair and functional
rules and processes to deal with the stages of “from the commitment of a legal wrong to
conviction and from conviction to actual implementation of the punishment”. Examples of
procedural issues are individuals’ rights during law enforcement investigation, arrest, filing of
charges, trial, and appeal.
Interest Group & Public Opinion
Islam supports interest group
63
and public opinion
64
. Many volunteers today in the world commit to
various good causes. Quran precedes contemporary politics, in this idea of group and individual
63
And from among you there should be a party who invite to good and enjoin what is right and forbid the wrong,
and these it is that shall be successful. (Quran 3:104)
64
The farmers complain about your harsh, contemptuous and cruel treatment. Their complaints require careful
consideration. I feel that they deserve better treatment than what was meted out to them, give them a better chance to
Page | 35
activism. So, Quran proposes that believers should form such activist groups not only to uphold religion
and religious morals but also to uphold and fight for all just causes from human rights, animal rights to
environmental rights and so on.
Public opinion is expressed through various means, but it must be captured correctly. This
means, in Islam, it must be expressed in clear logical form because expressive clarity is praised
in Quran and Hadith. Public opinion is often expressed through interest groups. It is their
responsibility to express the opinion in clear, concise and logical format. In that way the Islamic
government may be able to understand the current or evolving public attitude, beliefs and
values. It is in the interest of Islamic government and also part of Islamic obligation to survey
the public for their opinions about how good the Islamic government is, what is the level of
trust in it and also how tolerant is the Islamic society
65
. Complete information and
understanding of public opinion will thus help the Islamic government to address public
concerns and its own development in the proper way through legislation and policy. This spirit
of feedback through acquaintance is an Islamic implication
66
.
Islamic theocratic meritocratic government, as it's form suggests, must allow formation of
public opinion through proper, clear and detailed protocols. One consideration is that only
those opinions are public which concern the wider society and every member of the society.
Rights, duties and responsibilities important enough to become public opinions, so concerned
members of the Islamic society and validated interest groups should consult with Islamic
lawyers before initiating an emergence of public opinion. The content, objective and purpose of
the public opinion must not violate the Islamic constitution, must not seek to promote
irrational civil disobedience and must not promote beliefs or acts deemed unhealthy and
approach you and treat them kindly and politely. They may be heathens and polytheists but being our subjects, and
human beings, they do not deserve to be driven away from us and treated harshly. (Nahjul Balagha, Letter a19)
65
Your first consideration should be the welfare of those over whom you rule and then to treat them with due
respect. (Nahjul Balagha, Letter 18)
66
Imam Ali (AS) said, ‘Allah, most High, has made obligatory upon the leaders of justice [truth] to equate
themselves with the weak ones from among of people, so that the poor cannot be intimidated as a result of his
poverty.’[Nahj al-Balagha, Sermon 209]
Page | 36
prohibited by Islamic rationale and law. A rational healthy public opinion will highlight issues
which are making the lives of people hard, making them vulnerable to injustice, exploiting and
impeding their spiritual, moral, intellectual and materiel growth.
In the Islamic jurisdiction as people are not the source of power then it follows that the validity
of such groups and interests of the interest groups must be seen through Islamic law, its
purpose, objectives and spirit. In this way Islamic legislative can maintain balance rather than
exposing the society to irrational impulses. The Islamic government cannot impede the right in
Quran (3:104) unless the purpose of this verse has been violated. Many volunteers today in the
world commit to various good causes. Quran precedes contemporary politics, in this idea of
group and individual activism. So, Quran proposes that believers should form such activist
groups not only to uphold religion and religious morals but also to uphold and fight for all just
causes from human rights, animal rights to environmental rights and so on.
Privacy
Privacy in Islam is that which the person is unwilling to share or reveal except to people of his
or her choosing or none at all, either by prescription of Islamic law or willingly. Privacy can also
be defined as beliefs, acts or states of the individual which is no concern of the Islamic
government. Several verses of Quran and Hadith emphasize the importance of protecting one's
privacy
67
. This is because revealing privacy may create situations, conditions or causes which
violate the objectives and purpose of Islam and/or harms the individual in question in some
way. However, like many laws of Islam, there are exceptions to protection of privacy.
Privacy in Islam has two levels of existence. Privacy from government and privacy among
people. As privacy is related with you this means your existence in the society creates situations
which you desire were not known by anyone you did not wish. These situations create
information about your belief, act, behavior or state that can be collected, managed and
disseminated either by the government, institutions or individuals. If you were in a jungle by
67
And do not spy… (Quran 49:12)
Page | 37
yourself the concept of privacy would not arise. The gap between jungle life and modern
societal life is proliferation of digitization. This has made the issue of privacy important, and one
may fairly ask "who gets to safeguard our information?" rather than "do we have privacy?".
Information which an individual or entity disseminates in public can be collected and analyzed
by Islamic security services for analysis and decision making. Public information of an individual
or entity is that which has no filter mechanism or checkpoint to acquire so that it is just
available to collect without any authorization or authentication.
The need for privacy intrusion arises when society is exposed to evil, crimes and danger. This is
most evident in secular societies because of lack of Godliness the society is vulnerable to evil.
However Islamic society is based on Shariah law, and it is the best deterrent and protection.
Islamic jurisdiction deals with evil, and by evil, I mean everything bad or harmful, by guiding
(not controlling), ideas, actions and behavior. It just doesn't allow any form of expression in the
name of exercising freedom as discussed in other sections. Therefore, Islamic government
doesn't need to intrude covertly whimsically into the privacy of its citizens like China or
America.
Private information can be collected by consent or by covert operation. In the Islamic
jurisdiction private information collection must be guided by some principles, objectives, and
purpose of Islamic law. All kinds of private information covert or by consent should pass the
following criteria: a) the private information is needed to fulfill an obligatory act or stop a
prohibited act from realizing. b) the private information is needed to fulfill a necessity such as
avoiding death or unbearable suffering or debilitating situation preventing use of mind or limb
consistently. c) the private information must be directly related and in close proximity to the
valid reason of intrusion, by distance, relevance or effect. d) probable cause for the occurrence
of something harmful or someone being of an identity required by law. e) something bad is
about to happen imminently but the law enforcement or authorized party does not know from
where or how, then private information can be collected from the relevant sources. f) citizen
willingly allowed interference in his/her privacy for betterment of society or the individual.
Page | 38
How can Islamic intelligence continuously collect information to assess threat landscape? The
above conditions should be followed. In context or domain where the above conditions are
inapplicable or do not fit then the intelligence agencies may collect information which are a)
publicly available b) available in closed circles. Information from closed circles in absence of the
applicability of the aforementioned conditions can be collected if someone share such
information. However such information cannot be stored in the system without valid basis as
mentioned in the conditions.
Is private information a trust or is private information an ownership? What this means is once
private information is given by consent and under the dictates of Islamic law and Islamic
legislation does it become the property of the one it is given to, such that, such an entity or
person can use this information anyway? Or does it mean the private information is being
entrusted such that it is not used outside that entity and for that specific reason for which it
was given. It depends on how the consent was given. Some types of private information cannot
be withheld and can be shared such as those that are vital for someone source’s life, health and
livelihood.
The private information given as a trust can be removed by the individual's request, but if given
as an ownership cannot be removed. The Islamic legislative must ensure that organizations and
authorities do not exploit the citizens or foreigners in collecting their private information. The
collection of private information should be temporary, and access to it after the decease or
demise of an individual or entity depend on case-by-case basis based on Islamic law and Islamic
legislation. For transparency and trust in Islamic government the government should allow
access to past and present governmental information based on some criteria.
Page | 39
Jihad
What is Jihad? Jihad is only named Jihad when it is done to uphold, empower and protect God’s
sovereignty to rule and Muslim’s right to worship God
68
. Jihad is thus a struggle, personally or
collectively, spiritual, financial or military to achieve these specific Quranic goals and purpose.
Protecting property, life, wealth etc. from aggression is not Jihad but may be justified self-
defense which also Islam supports. It is clear from both Quran and Sunnah that the oppressed
are given right to fight to preserve their life, property, honor, dignity and way of life but this is
so that they can live in obedience of God. If someone is fighting for his life, property and
country so they can live in communism or secularism then this is not Jihad
69
. Your intention
must be to live in God and under God through your life, wealth and land. When some non-
Muslims are oppressed by tyrants and Muslims have the power to free them then also this is
Jihad because those non-Muslims have a hope to turn to Islam. So, Jihad is defensive
70
and
humanitarian
71
. Jihad is a continuous command. God commands the believers to prepare
continuously and persistently against known and unknow threats
72
.
Why Jihad? The preparation in military and security apparatus has been essential for all
civilizations and it should be no different for Muslims. Jihad is not about enriching Muslims or
enslaving infidels. Abusing ethnic and religious fervors western and eastern wars have been
waged to make the politicians, royals and corporations rich but Islamic war is against this
68
And fight them until persecution is no more, and religion is all for Allah. (Quran 8:39)
69
Those who believe fight in the cause of Allah, and those who reject Faith Fight in the cause of Evil (Quran 4:76)
70
Fight in the way of Allah those who fight you but do not transgress. Indeed. Allah does not like transgressors.
(Quran 2:190)
71
And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men,
women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from
Yourself a protector and appoint for us from Yourself a helper?" (Quran 4:75)
72
And prepare against them whatever you are able of power and of steeds of war by which you may terrify the
enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And
whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged. (Quran 8:60)
Page | 40
money-making exploitative model. The bounties from a just defensive or humanitarian war are
equitably distributed among the needy and unfortunate ones
73
. These other recipients need
not necessarily be the believers but may also be the disbelievers against whom the war has
been waged because the leaders of disbelievers might have been unjust and cruel to their
subjects so Islamic leadership should distribute some of the war bounties to them.
Jihad is not a way to enslave people and nations. Quran does not encourage, obligate or
command slavery. It commands to free prisoners as good gesture or ransom them. Islam came
to abolish slavery through reformation. The reformation was done in these ways: 1. Prohibition
of enslaving free people and limiting it in only defensive or humanitarian war for only prisoners
and combatants 2. Keeping a lot of legal obligations to free slaves as compensation of legal
wrongs 3. Obligating treatment of slaves as human beings and servants of God thereby
minimizing the chances of cruelty and humiliation. 4. Promising spiritual rewards for freeing
slaves voluntarily.
Is Jihad an individual act like prayer or fasting, so any Muslim can just start a Jihad? Jihad is fard
kifaya that is obligatory on some members of the Islamic jurisdiction who are able to fight
74
.
Who to fight? Jihad is done against sins and against people. The example of the first may be
fighting temptations to sin such as adultery, drinking etc. The latter is fighting people who are
hostile to Islam and Muslims just because they follow Islam
75
. Armed Jihad is fought against
people who start fighting Muslims. Armed Jihad is also done to help oppressed Muslims and
non-Muslims.
73
And know that out of all the booty that ye may acquire (in war), a fifth share is assigned to Allah,- and to the
Messenger, and to near relatives, orphans, the needy, and the wayfarer,- if ye do believe in Allah and in the
revelation (Quran 8:41)
74
And the believers should not all go out to fight. Of every section of them, a party only should go forth… (Quran
9:122)
75
Allah does not forbid you from those who do not fight you because of religion and do not expel you from your
homes - from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly.
(Quran 60:8)
Page | 41
When to fight? Fighting, that is armed Jihad is done in self-defense or in humanitarian mission,
that is to free the oppressed. A state of war exists when a) armed hostilities from enemies have
been initiated
76
b) they broken their peace treaty and entered in a state of hostility
77
c)
oppression and persecution has been started on innocent people
78
d) in months which are not
sacred
79
.
How long to fight? Quran proposes five conditions
80
for the cessation of fight or war. First
condition is the tyranny, persecution and the ideology which brought hostility against Islam and
Muslims must end and the second condition is that God’s religion must be allowed to be
followed. The third condition is if the enemy ceases with their hostility and that implies, they
must go to the status quo or must form a new reality based on some agreement: One example
is the enemy withdraws and ceases the war while paying reparations. Fourth condition is that
the enemy has repented and willingly embraces Islam
81
. Fifth condition is enemy wishes to
enter into a state of peace
82
.
How to fight? Islamic texts, it’s rationale and semantics have laid down revolutionary laws of
war which only recently international law has appreciated. Jihad is done in a proportional
76
Fight in the way of Allah those who fight you but do not transgress. Indeed. Allah does not like transgressors.
(Quran 2:190)
77
Would you not fight a people who broke their oaths and determined to expel the Messenger, and they had begun
[the attack upon] you the first time? Do you fear them? But Allah has more right that you should fear Him, if you
are [truly] believers. (Quran 9:13)
78
And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men,
women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from
Yourself a protector and appoint for us from Yourself a helper?" (Quran 4:75)
79
And when the sacred months have passed, then kill the polytheists wherever you find them and capture them and
besiege them and sit in wait for them at every place of ambush. (Quran 9:5)
80
And fight them until persecution is no more, and religion is all for Allah. But if they cease, then lo! Allah is Seer
of what they do. (Quran 8:39)
81
But if they should repent, establish prayer, and give zakah, let them [go] on their way. Indeed, Allah is Forgiving
and Merciful. (Quran 9:5)
82
And if they incline to peace, then incline to it [also] and rely upon Allah. Indeed, it is He who is the Hearing, the
Knowing (Quran 8:61). This verse has not been abrogated.
Page | 42
manner, so collective and/or excessive punishment is forbidden
83
. In context of war this
prohibits indiscriminate destruction of properties and killing of women, children, old people,
religious priests and other non-combatants as Prophet and the first caliphs practiced.
Are Muslims in non-Muslim countries allowed to do Jihad? Such Muslims can do Jihad within
the laws of those non-Muslim countries because these Muslims when they chose to be in those
countries have agreed to obey their laws. Islam obligates Muslims to honor the contracts they
have entered into.
International System
Modern international relation is relationship among nation-states, international organizations,
MNCs and International individuals across many levels of political, economic, cultural, epistemic
and legal existence. Nation-state has been mostly determined by the dominant ethnicity. For
example, one of the major reasons Soviet Union broke up was due to nationalist ethnic impulse
of its satellite states and integrated demographic. Yugoslavia also broke up due to this
nationalist ethnic impulse. America for example is not a nation state, firstly because it consists
of multiple ethnicities from mostly European nation-states. Even though right wing tries to
make it a country based on religio- ethnic white identity America has never been a nation state.
America since its independence has always been a “value” state. A value state is a state which is
based on some agreed upon values seen higher than the people, somewhat transcendent
which drives the nation. The history of American nation is thus a history of evolving values and
not connected with any ethnicity. American value has mostly emanated from God, reason and
money.
However even though nation-states have been mostly ethnic, internationalization of economy
and technology has made states across the world more or less interdependent. This
internationalization has been mostly possible due to mutual need for resources, skills and
technologies and a desire for economic growth based on such. However, states seeking power
83
…So whoever has assaulted you, then assault him in the same way that he has assaulted you…(Quran 2:194)
Page | 43
and dominance thus trying to control and dictate internationalization, opportunistic or planned,
continue to exist such as America, China or Russia, so international relational dependency
hasn't been equal and mutual. To these tyrannical nations internationalization is to be made in
their own respective images.
Classical and modern international economy has been exploitative. Modern international
economy is heavily influenced by corporations. The beliefs, policies and practices of these
corporations have created the corporatocracy ideology. Since a very long time in human history
the powerful exploited the economic resources for themselves (materialism and ego) and for
their ideological standpoints (nationalism, tribalism, racism etc.)
84
. Some resources are
foundations of human economic activities while some provide human economic activities an
added value. In ancient times iron silver gold etc. (military industry) were crucial and now it is
oil and gas (energy sector) and what comes with it (construction industry). Today a major
resource is oil which is the blood of global economy and the imperial tyrants (corporations and
their powerful political allies) to control oil are supporting all tyrannical regimes and
governments from Zionists to Arab Bedouin dictatorship.
Any resource, natural or otherwise, with knowledge relevant to it, which makes "one powerful
(control) over the other" becomes essential and foundation of the economic activities whether
this power and knowledge comes from achieving death and destruction through such resource
and knowledge or achieving life and sustenance through such. This resource-based exploitation
has been used by the corporatocracy through nation-state's and state's government, various
organizations and influential individuals.
Corporatocracy is global today. It has hugely affected the individual, family, society, nation and
international relation. Corporatocracy is the idea based on ethical egoism of maximizing profit
at any cost. Practically it resulted in a few people with their businesses ruling the entire locality,
84
Those who were oppressed will say to those who were arrogant, "Rather, [it was your] conspiracy of night and
day when you were ordering us to disbelieve in Allah and attribute to Him equals." (Quran 34:33)
Page | 44
region and the entire planet with a somewhat feudal structure. Most businesses and even
many governments on earth depend on few corporations. In the corporatocratic model
businesses are in a hierarchy locally and globally which depend on more powerful (wealth,
policy influence and resources) businesses until it reaches the top tier corporations, local or
global. Corporatocracy is based on exploitation of the employable labor, debt slavery,
monopoly and fraudulent and deceptive financial policies. In the view of corporatocracy even if
one person, and this is most of the time the aristocracy, profits and grows, it is statistically
considered growth even if most of the population is burdened with debt and lack welfare.
Corporatocracy is a broader collaboration with politicians, foreign aid agencies, private
contractors and the military, that is global corporate empire is a shared bond between
governments, many strategic intermediaries, corporations including the banking industry and
the military industry. The death economy of slavery is on shoulders of corporatocracy based on
plunder, war, debt and materialism pillaging earth to the point of extinction. In short, some
major features of corporatocracy are false economic and financial forecasts, deceptive
accounting, distorted financial analysis, inflated projections, secrecy, deception, threat, bribe,
extortion and false promises and most importantly enslavement through huge
debts. Corporatocracy is distributed among many countries such as production plants in one
country, call center in second, tax-sheltered banking accounts in third, headquarter in fourth
giving them immense leverage. Enslaved countries often facilitated by its corrupt politicians
must vie with each other to give these corporations the most lenient environment and social
regulations, lowest wage and tax rates. Modern democracy is thus a marriage with
corporatocracy because governments give massive tax cuts and subsidies to the corporations
by legitimate bribing such as election funding and other incentives.
The corporatocracy will make efforts to maintain a certain low standard of living to create
markets, gain resources, get continuous cheap labor and demand productivity from them, to
fuel the corporate mode of production. This model is true for most of the world, and the few
western countries which cherish worker’s rights cannot be counted as an argument against it as
almost all western countries have found this cheap labor model in slavery-based China and
Page | 45
other third world or developing countries. They cannot possibly allow the masses to have the
rightful joy of a good standard of living
85
globally because their perspective is, this will cause
shortage of and in labor, resources and productivity to serve the corporatocracy. This will
also demand rule of law, security, transparency, and accountability which corporatocracy shuns
in name of competition, profit and innovation. Corporatocracy seeking maximum productivity
in rivalry yet at times through mutual interest-based solidarity, by competing in speed, quality,
quantity, time and cost of labor, goods and services. This productivity inversely depends on
population welfare and standard of living as the labor strives hard to improve the material
standard of living and earn financial or material incentives which he deserves through welfare.
When population is doing good and living without much thought their productivity declines as
they opt for a relaxed non stressful lifestyle, and this is what the corporatocracy uses as
defense to subjugate mostly poor global workforce population.
An illiterate and backward population cannot be a fertile market or supplier of skilled labor.
Economic activity depends on this as well as correct number of businesses and
related consumers and correct state of supply and demand. For example, will corporate
consumerist economy thrive in a non-consumerist psychology of the monks, who for example
made it their life goal to practice abstinence and satisfaction by little? Corporatocracy knows
this, so they fund the agenda of education for all and live life to the fullest, but they never
support social welfare model for all, such as better living standard, free healthcare, minimum
wage depending on skill class, welfare tax for the needy and other items of welfare. By
introducing humanity into economic activities corporatocracy will lose ground and opportunity
of exploitation of the employable class and resources. However, the corporatocracy will impede
whole scale educational development of global population through political, social and
economic engineering to always create a class of labor for hard work, for example refuges
and/or economic migrants. By ditching an intensive welfare model and promoting immoral
unethical philosophies of McNamara and Friedman which are aggressive leadership,
85
A good standard of living includes spiritual, moral, economic and health wellbeing on the principle of
sustainability, rationally measured happiness and calculated need fulfillment.
Page | 46
deregulation, profit at any cost without any accountability or transparency they make even the
most educated person work in cheap job and exploit.
Corporatocracy is controlling the population growth and demography by dividing global
population into segments: those that supply labors, those that supply markets, those that
supply resources for manufacturing. Controlling global population means maintenance of these
segments and minimizing or impeding the global welfare model by paying no taxes, lack of
environmental concerns and forcing the existence of a certain political landscape suitable for
corporatocracy. African continent and post-colonial middle east are perfect examples.
While banks were supposed to be the most “welfare concerned” corporate institution which
should have helped people grow financially through interest free loan scheme, protect their
wealth, make just and ethical investments to help them grow and empower social wealth
collectively. However today corporate banks have become the head of the evil corporate
empire and the regional and global corporatocracy. Several Banking scandals have rocked the
banking industry.
The interest-bearing banking system is also responsible for increasing national debt. The
government (not the politicians or the political parties) is at the mercy of the wealthy capitalists
and rich bankers i.e. the corporatocracy. When the government is under deficit, they take loan
from corporatocracy whether foreign or local, that is the nation, the common people are at the
mercy of the corporatocracy. To deal with the result of this interest-bearing scheme
government may take some drastic measures such as raising taxes significantly, aggressively
promoting trade to foreign nations, spending cuts on welfare services for public, bailout or
outright default. Many of the imperialist nations have pursued one or more of these methods
aggressively among which are wars, coup and sanctions to protect their financial interests.
These aggressions may not have been done to only reduce nominal debt but also to increase
the earning ability of the imperialist economy (GDP) in long term as temporarily wars will
increase debt. An improved economy means more available interest-bearing debts to
government which also increases the debts as well. It is like a cycle and devastating cycle it is
Page | 47
which can lead to global warfare as debt ridden nations vie each other for control. Long terms
effects of national debt can be crippling as happened with Greece and other Eurozone
countries.
It is essentially for interest bearing scheme that corporate capitalism has never been successful
and have a history of instability through 20th and current century. Multiple global financial
crisis, increasing inequality, exploitation and subjugation of humans and environment are the
ever-evident features of the system. The important question that needs asking is why if
corporatocracy is so evil it is thriving among the common masses? Well, the most rational
answer it is thriving the same way slavery mode of production thrived for millennia. Do you
think slavery would have survived for millennia if slaves were resisting and revolting most of its
existence? They were engineered psychologically and socially to accept the institution of
slavery as the most important mode of production and their failure to perceive or realize an
alternative led to its continuity. Existence of corporatocracy should be looked at similarly.
However, the good news is people have become very aware against corporatocracy and many
even have an alternative such as Islamic economic model.
Islam rejects nationalism, racism and tribalism for building and sustaining human organization.
Islam rejects the corporatocratic model of economic activity as well. We Muslims are defined by
the Divine values and not by our races, ethnicities, nationalities or ancestors so we have been
named the Ummah, and our united lands to be under Hukm Allah and thus we have been
named Khaleefa. This means Islamic nation state is one united jurisdiction under one Islamic
leader based on divine values
86
. This transcends culture, race and ethnicity. A powerful uniting
factor which the enemies fear. A Muslim's primary that is existential identity is by his religion,
not by his race or ethnicity or tribe and neither by the culture resulted from such. When Muslim
makes the latter primary, it creates division and divisiveness in the mind which is an erosion
86
[We said], "O David, indeed We have made you a Caliph upon the earth, so judge between the people in truth and
do not follow [your own] desire, as it will lead you astray from the way of Allah". Indeed, those who go astray from
the way of Allah will have a severe punishment for having forgotten the Day of Account. (Quran 38:26)
Page | 48
and disuniting factor of the Ummah. The Muslim needs to return to Quran
87
88
which shows
believers are one community with a conscience of solidarity and empathy among themselves.
The demonstration of Quranic unity can be found in Prophetic rule and the rule of the first four
Caliphs who fought for and maintained one united jurisdiction of Muslims. This unity and
monolithic empathy on faith rejects nationalism, racism, tribalism and aristocracy. This rejects
veneration of pagan ancestors be they Cyrus, Carthage, Pharaohs or any others. The true
believers forming the Ummah are the people and true citizens of heaven while those who die
for nationalism, racism etc. are the citizens of a jahiliyya.
What is the rational for this unity which is primarily expressed by mind, and act such as one
jurisdictional realization? Two of the rules of forming close relationship according to psychology
are: proximity and similarity. The element of proximity in attraction means that people are
more likely to be attracted to someone who is in close physical and social proximity to them. So
Islam has ordained one rule and one security
89
for Muslims in many verses. This will achieve
physical and social proximity, and this is a monumental task because of what western
colonialism and neocolonialism has done and is doing. The element of similarity means exactly
what you’d think — it means that people are more likely to be attracted to people who have
similar traits to them. Islam is most effective in achieving this. For example, Islam states
Muslims are one body and that a believer is a mirror to another believer. So, Islam is about
creating intense and essential similarities among its followers, so they admire each other. One
jurisdiction will thus help realize the spirit of one body
90
. However again colonialism,
87
Indeed, this community of yours is one community, and I am your Lord. So worship Me (Quran 21:92)
88
And those who came (into the faith) after them say: Our Lord! Forgive us and our brethren who were before us in
the faith, and place not in our hearts any rancor toward those who believe. Our Lord! Thou art Full of Pity, Merciful
(Quran 59:10)
89
The Prophet (SAWA) said, ‘The believers’ blood is coequal, and they are one hand against others, the most
inferior among them is empowered by their protection [of him].’[Kanz al-`Ummal, no. 402]
90
The Prophet (SAWA) said, ‘The similitude of the believers in their mutual love, affection and compassion for one
another is as one body - if a single limb ails then the rest of the body suffers in insomnia and fever.’[Musnad Ibn
Hanbal, v. 6, p. 379, no. 18408]
Page | 49
neocolonialism, Muslim nationalism
91
and racism
92
have destroyed this. Ummah can also
include the minority non-Muslims as Prophet named the Jews of Medina part of the Ummah as
long as they submitted to the Islamic rule and the Islamic society
93
.
The evils of nationalism are many. Muslim countries lack bite when it comes to implementing
pro-Islamic foreign policies. It is because they are not biting with all the teeth! Muslim
countries' interests are not only divided but also conflicting because their aims and plans are
not coordinated and collaborated in Islamic unity, such as when one Muslim country makes a
policy in relation to another foreign non-Muslim country it doesn't consider how it will affect
other Muslim countries, or for example trade, skills, technology and research are not being
shared and collaborated in and as a result their security services and armed forces do not
collaborate and share intelligence to protect Islam's and Muslim security and interests.
How should the Islamic international relation of this Ummah God's community be? While
nation-states have tried to exploit, dominate, and invade through imperialism Islamic Ummah is
about peaceful co-existence, mutual development, and support for the oppressed. Islam rejects
imperialism. Islamic humanitarian law which is the law of war has established the concept of
proportionality, protection of civilians, their properties, treatment of prisoners and conditions
to start and end war among other things. Islamic law also established the principle of protecting
91
Nationalism is any belief and/or act and/or policy and/or law that has been formed from one’s belief in the
superiority and/or preference of his or her nationality to achieve the purpose of his or her nationalist empowerment
irrespective of the rationality, consequences and/or equity of such belief/act/policy/law.
92
Racism is any belief and/or act and/or policy and/or law that has been formed from one’s belief in the superiority
and/or preference of his or her ethnicity/race to achieve the purpose of his or her ethnic/racial empowerment
irrespective of the rationality, consequences and/or equity of such belief/act/policy/law.
93
Imam Ali (a) says that as a caliph and a ruler, he promises safety and security of life, property, honour, social
status and religious freedom of Armanian Christians. This order should be obeyed by his officers and by his
successors. The Christians should not be maltreated or looked down because they are non-Muslims. So long as they
do not try to betray and injure the cause of the State of Islam, they should not be molested but should be allowed to
practice their religion and to trade freely and openly. They should not be overtaxed, should not be humiliated and
should not be forced out of their homes, lands, and trades. Their priests should be treated with due respects, their
monasteries should be protected, and they should be allowed to carry on their lectures, teachings and preachings as
usual and their religious ceremonies should not be banned. If they want to build their places of worship then fallow
and unclaimed lands should be allotted to them. One, who disobeys this order is going against the orders of Allah,
and the Holy Prophet (s) and will deserve His Wrath. (Letter of Imam Ali to the Christians of Azerbaijan)
Page | 50
the oppressed and giving them sanctuary who are called refugees today. Islamic law has also
established the principle of peaceful and equitable international relation.
Islamic law makes it abundantly clear that all fighting on the battlefield must be directed solely
against people taking up arms, which are called combatants
94
unlike imperialist warfare. Islamic
law prohibits weapons of mass destruction which kills indiscriminately
95
. Islamic law prohibits
indiscriminate killings and destruction of properties and mutilation of the dead. Islamic law
protects the prisoners of war
96
and gives safe passage to diplomats, messengers and
defectors
97
. Quran has established the principle of asylum seeking
98
before international law.
Quran has allowed migration from persecution and also sins. So, Quran’s migration policy is
based on both persecution of life and livelihood and persecution of religion by which a person
fails to live righteously.
Islam supports defensive and humanitarian wars
99
unlike imperialist aggressive wars of
occupation. The law of proportionality
100
is applied in both war and other laws of Islam and it
means punishment of a certain wrongdoing should be in proportion to the severity of the
wrongdoing itself. In context of war this prohibits indiscriminate destruction of properties and
94
Fight in the way of God those who fight against you but do not transgress. Indeed, God does not like
transgressors. (Quran 2:190)
95
Ibid
96
…Later ˹free them either as˺ an act of grace or by ransom until the war comes to an end…(Quran 47:4)
97
nd if anyone from the polytheists asks for your protection ˹O Prophet˺, grant it to them so they may hear the Word
of God, then escort them to a place of safety, for they are a people who have no knowledge. (Quran 9:6)
98
…They will say, "We were oppressed in the land." The angels will say, "Was not the earth of God spacious
[enough] for you to emigrate therein? (Quran 4:97)
99
And what is [the matter] with you that you fight not in the cause of God and [for] the oppressed among men,
women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from
Yourself a protector and appoint for us from Yourself a helper”? (Quran 4:75)
100
…So whoever has assaulted you, then assault him in the same way that he has assaulted you…(Quran 2:194)
Page | 51
killing of women, children, old people, religious priests and other non-combatants as Prophet
and the first caliphs practiced.
Islam, unlike imperialism, believes in peaceful coexistence among nations
101
where knowledge,
technology and trade will be for mutual benefits and thus rejects exploitation specially through
interest on loans, colonialism and occupation. Islam believes uplifting humanity on equity and
rejects any tyranny and exploitation specially on life saving sustenance anywhere in the world.
Islamic international relation is thus based on equity and resistance against tyranny and
imperialism. Islamic international thus rejects empowering or siding with any tyrant nation
state or state such as America, Russia or China today.
Islam’s rejection of corporatocracy is both philosophical and practical. Islam believes human
necessity to adhere to sets of moral values which will bring betterment to collective human
existence thereby automatically creating the best model of political economy and socio-
economic activities. Islam maintains certain assumptions for human existence: a) Man will be
motivated to work if given opportunity and boost through welfare, justice and security b)
Family is founded on love and patriarch financial supremacy is a protective scheme for women,
society and the demography c) Women cannot be exploited for sexual and economic gains at
the expense of values, morals, relationship, their health, family and the demography. Islamic
economic model proposes a welfare economy, a welfare which is not only paying social
monetary benefits to the masses but also providing efficient free public services which are of
universal concern to people, environmental preservation and moral and ethical protocols
for businesses and trade activities as well. A welfare model minimizes hardship and increases
happiness. The welfare maturity is measured against growth of the rich in relationship to
growth of the welfare. That is if the rich grows then welfare must grow and if the rich shrinks
101
O mankind, indeed, We have created you from male and female and made you peoples and tribes that you may
know one another. Indeed, the most noble of you in the sight of Allah is the most righteous1 of you. Indeed, Allah is
Knowing and Aware. (Quran 49:13)
Page | 52
welfare will also shrink in proportion. For Islamic economy it is a reflection of total Islamic tax
wealth (Islamic treasury wealth) increase and welfare distribution. So Islamic system is a system
of politics, economic and finance which prioritizes welfare over profit, equity over exploitation,
divine supremacy over Marxian materialism. Islamic economic system cannot work in vacuum
but implemented as a whole package called Shariah Law. While profit is essential but is
secondary and shared through the wide-ranging taxation system of Islam. God knows that not
everyone will be rich, but every rich can make sure the needy and unfortunate ones are taken
care of thereby eradicating class conflict which has driven historical materialism.
But before we work for and achieve the Islamic international relation of the Ummah we need to
realize the ideological Ummah. Muslims have most of their history lived disunited and divided
and often fought among themselves due to not realizing Prophet's last will. While Europe after
a long and hard struggle united as one through the EU, Muslims have become even more
divided. The road towards unity towards one universal Islamic jurisdiction must start with
achieving association of Islamic jurisdictions. This means first and foremost the Muslim
countries living in ignorance and sin must declare Islamic state based on political Islamic
theocratic meritocracy. Then they should focus on the creation of transnational Islamic
organizations to achieve united peace, security, trade, economic and other concerns of state
and life. These organizations are meant to unite, focus and organize common concerns and
essential developmental interests and goals. These Islamic transnational organizations are
policy making and policy enforcing organizations. These organizations will study peace, security,
trade and other developmental goals and interests so they may focus on Islamic human capital
building, utilization of natural resources, educational development, skills migration, scientific
research, legal development, Islamic cultural development, creating equitable markets among
themselves etc. These organizations will perform informational, regulatory and supervisory
roles. The first step in creating such organizations is will of the Islamic governments which will
express a broad and general charter and then implementational details are expressed in the
form of procedures and administrative rules. The rest can be designed as per the discussion in
the “Institutions" section. Also, all other treaty obligations with non-Muslim countries must be
Page | 53
absolved and ended so that Islamic countries are not held back by obligations to others and
ever existing conflict of interests among Islamic brothers.
As these organizations mature Islamic jurisdictions can form a united Guardian Council and
United Shura Council acting as the legislative of the united Islamic states. Such a model towards
realizing Ummah can start even between two Islamic states and then they can invite Islamic
states. The most important initiating things are intention and willingness. These two will be
asked about by God as seeking and maintaining Islamic unity is obligatory.
Such a united jurisdictional unity can also be realized through the concept of federalism.
Federalism is a system of government in which power is divided between one national, federal
government and several independent state governments. These independent state
governments will be the theocratic meritocratic governments of Islamic states and the national,
federal government will be the central Islamic government. The central Islamic government
(imam and the Guardian Council) will be formed by theocratic meritocratic election where the
candidates will be the imams of the Islamic jurisdictions and the voters will be the Islamic
citizens and foreigners under the united Islamic jurisdiction. Some of the features of the united
Islamic jurisdiction of Islamic states are a) free migration b) share wealth income based on
efficiency and corruption level of the state c) every ethnicity will be represented in the federal
Shura Council.
Political Islamic Mindset
Political Islam is achievable, functional, worthy and appealing but to realize political Islam we
must need the relevant Islamic mindset. Political Islamic mindset requires both individual and
collective attitude, conscience and belief. Those who will see wisdom and reason will embrace
Islam so, to win converts, we do not need to sacrifice the mindset and thereby integrity of Islam
by polluting this mindset. Muslims must stop thinking that world accepts Islam or that Islam is
just another belief which world accepts as normal. What this will facilitate is the cohesive
psychological framework which will help us think about ourselves (self-concept) as part of
Islamic polity, teach us to present ourselves to others as part of Islamic polity, teach us about
how to approach others’ thinking about us, help us become more aware about ourselves, the
Page | 54
Ummah and the greater society, teach us how to interpret social information through
constructing guided perspectives and lastly teach us to think about and evaluate others.
Any theory's, policy’s, or system's realization of maximum potential of its
applicability, workability and efficacy depend on the devotion and skillset of the human capital
serving it. There are many democracies in world, but some are miserable and some in a better
condition. This goes back to the human capital. Islam's practical success and efficacy also depend
on the nature and quality of Muslim people and non-Muslim people under its jurisdiction. So,
building an Islamic and Islamised human capital is essential for Islam's success. Preparing the
proper Islamic mindset is essential.
Political Islamic mindset is a subset of Islamic mindset, and the Islamic mindset consists of the
spiritual, political, social, economic, cultural, military etc. i.e., total existential conscience
crafted by the Quran. It is essential Muslims never contradict this mindset even though
psychologically not everyone may be able to achieve this but there must be enough Muslims
with political Islamic mindset to make change towards political Islamic governance. Political
Islamic mindset starts with the basic Islamic mindset of being a servant of God whose soul
belongs to God, of being from Islamic brotherhood whose one psychological instance is being a
member of a nation of faith rather than primary identification with maps, boundaries and
ethnicities, and a practical instance of this mindset is as a Muslim you are ready to accept as a
ruler over you an Islamic person whether such a person is Arab, Iranian, European, African or
whatever race or ethnicity he may be. Nationalistic, racial or cultural ego do not affect you as
long as a person of God represents you, rejecting secularism, racism and nationalism and
rejecting admiration and veneration of entities which contradict Islamic worldview because as a
Muslim we serve the Lord of the worlds and Islamic dignity, and honor is divine and thus
superior. Such personal admiration only creates a crack in the Ummah conscience.
Political Islamic mindset is self-preserving, a shield to protect the Ummah, sustain it and evolve
it. Jihad by mind, by pen and by arms when need arises is essential. This also demands that
Page | 55
overcome economic, financial and scientific obstacles towards Islamisation by determination,
purpose and a thirst for knowledge so we become strong in mind and become self-sufficient
enough to live under Islamic rule and Islam. The change starts from position of power:
governments, universities, established businesses, established individuals and then the change
is propagated through and adopted by the Muslim population until it becomes dominant. In the
process of becoming independent of our adversaries we will know what we lack and what we
will need. This vision of need and lacking will create new research and innovation in the Islamic
Ummah, as has been the historical rule of innovation.
Meekness, gullibility and naivety are rejected. Meekness which means one who is easily
imposed on and submissive. Naive who is one showing lack of experience, wisdom or judgment.
Gullible is one who is easily persuaded. The political Islamic activist or agent cannot have these
because it may destroy the Ummah. The political Islamic mindset also understands when to
compromise and which principles and values are worth giving life for and never compromised.
Conclusion
Islam supports both politics and political science. Political Islam is a system which represents
God's authority on earth as God willed it. Political Islam is also a vanguard of the Ummah
protecting, sustaining and evolving them in the midst of satanic war against God and the
believers. Political Islam can be studied by political science. We saw how Islamic texts have
proposed many of the policies and concepts that modern western philosophy supports. What
this shows is Islamic texts have guidance which need to be realized by Muslims independent
from any other system or culture. This means we do not have to depend on a non-Muslim
culture and research to show us that something in Islamic text is of value, rather we must be
creative in making Islam functional and guiding. God revealed His religion, and His religion Islam
is contained in texts of Quran and Sunnah. These contain the ontology and a greater picture
which give us more information and revelation than what Plato and Aristotle identified as the
sources.
Page | 56
All of the forms, except political Islam, discussed here are secular in principles and many in
policies. As Islam has become a cognitive minority then it follows that Islamic intellectual and
cultural expressions have become almost non-existent. Political Islam has a theocratic
meritocratic leadership and Islam rejects monarchy, liberalism, Marxism, communism,
conservatism and feminism. Political Islam is rational, moral and just. As Islam has put intense
emphasis on reason, morality and justice then it follows that these are the building blocks and
policy creators in political Islam.
As society developed and people became intellectually mature the need of institution became
evident. Institutions thus act as problem solving entities in intellectually developed society.
Islam embraces the concept of institution. Democratic institutional system has enforced the
rule of law, separation of powers and electoral process. These are hoped to attain some equity
and justice and give the people power and access to justice. However, no system like Islam
emphasizes the need for morality, reason and justice in the character of the political member,
political participant and political institution. Islam, by it's textual rulings and by emphasizing the
essentials of character and mind enhances the chances of political efficacy and institutional
functionalism. The political and social institutions in Islamic jurisdiction are run on patriarchal
consultative hierarchy.
Islam allows existence of intertest groups and public opinions. Public opinion is expressed
through various means, but it must be captured correctly. This means. in Islam, it must be
expressed in clear logical form because expressive clarity is praised in Quran and Hadith. Public
opinion is often expressed through interest groups. The content, objective and purpose of the
public opinion must not violate the Islamic constitution, must not seek to promote irrational
civil disobedience and must not promote beliefs or acts deemed unhealthy and prohibited by
Islamic law. In the Islamic jurisdiction as people are not the source of power then it follows that
the validity of such groups and interests of the interest groups must be seen through Islamic
law, its purpose, objectives and spirit.
Page | 57
Islam rejects party-based politics. If there is any organization of people to represent political
and policy viewpoints in an Islamic jurisdiction then all their beliefs, acts and protocols of
incorporation must be based on Islam and that no rivalry should exist among brothers. If there
are parties in any Islamic jurisdiction it must always be under the system of theocratic
meritocracy. So, while political Islam enforces principles (of justice, morals and knowledge),
party based secular system enforces the agenda of winning vote (through ethnic, nationalist,
racist, corporate and even false appeals). This often results in deadlock, unstable coalition and
shutdown of government.
Islamic international system is based on justice, seeking peace, importance of diplomacy and
humanitarian intervention to save the oppressed, reject exploitative capitalism based on
interest on loans, puts checks and balances on corporations, rejects corporatocracy and sees
the Ummah as distinct entity among mankind.
Political Islamic mindset is a subset of Islamic mindset, and the Islamic mindset consists of the
spiritual, political, social, economic, cultural, military etc. i.e., total existential conscience
crafted by the Quran. It is essential Muslims never contradict this mindset even though
psychologically not everyone may be able to achieve this but there must be enough Muslims
with political Islamic mindset to make change towards political Islamic governance.
Page | 58
Legal System
Background
While classical Islamic scholarship has contributed tremendously to the interpretation of the
Islamic texts, this writing is aimed at explaining the functioning of Islamic law and Islamic legal
system through Islamic texts, sociology, history, politics and the philosophy of legal science. So,
Philosophy of Islamic law and legal system, unlike Usool Fiqh which is narrow and focuses on
classical Arabic language, sources of law and interpretive principles, will address the ontology
and functioning of the Islamic law and legal system.
Law, Legal System & Legal Science
Law and rule are prescription of identifiable belief, act, behavior and procedure creating rights,
obligations, duties and responsibilities for our individual and collective ontological states, and
consistently invoked when call is made often through adherence, enforcement or violation of
the law, so it has a permanency and generality. Law has a rationale aspect which is the reason,
relevance, significance and consequences and a functional aspect which is the administration,
implementation, and interpretation of the law to the facts. Law can also be conflicting with
respect to its functionality. Every law has a) element/s or concept/s for which it is created b)
ruling c) semantic. For example, the law of cutting the thief’s hand, first part, that is element of
the law is the act of thievery, and second part is obligation to cut while the third part is
meaning and elaboration of the Quranic verse. Another example is the prohibition of breaking
and entering into a house to steal stealable property. Here some Islamic laws are bundled
together and so number of legal elements are here: a) breaking which is destruction of
another’s property unjustly b) entering which is trespassing into another’s privacy c) stealing d)
property which if stolen will result in cutting of thief’s hand. It is the duty of Islamic jurists to
extract, design and extend laws from the texts of Quran and Sunnah to create, sustain and
evolve a mature vibrant Islamic jurisdiction.
Page | 59
Law can be cultural. This means law can be designed to support the values of a culture or a
purpose for a culture. As an example, US Supreme Court has found that nude dancing is a
constitutionally protected form of expression but has imposed certain limits on nudity, such as
the requirement that nudists wear pasties and a G-string
102
. For Islamic culture all forms of
public nudity is banned. This arises from the need to facilitate worship of God by removing
distractions and means to sins. Another example is US criminal law has so many categories of
killing of one human being by another unlike Islamic law that it seems they are reluctant to
send so many criminals to death penalty or life in prison. If America had the Islamic society,
there would not be so many psychological and “act” states of a murderer.
Secular law has been designed in such a way as to waste huge number of resources. Law can be
designed in such a way as to either increase the chances of conviction or decrease such
chances. For example, the requirements and legal elements of rape have been changed and
made it easier for alleged rapists to get convicted while giving greater benefit of the doubt to
alleged victims. It thus resulted in women getting unnecessary favor from the law.
Requirements such as the victim does not need to provide witness or does not need to
establish defendant’s use of force or resistance by the victim and that the victim’s testimony
alone could convict the defendant. In this design modern secular law uses injustice to scare
away potential rapists because modern secular law lacks Hijab
103
, segregated social system and
suppression of social nudity which often acts as the causative mechanisms of rape. This unjust
102
City of Erie et. al. vs Pap’s A.M., 2010
103
Rahman, M. M. (n.d.). Why Hijab Must be Enforced. Www.academia.edu. Retrieved May 18, 2022, from
https://www.academia.edu/49680092/Why_Hijab_Must_be_Enforced
Page | 60
and flawed law has been exploited by the MeToo movement
104
as well and have destroyed lives
of many men
105
106
.
Every law has a scope so that it does not trespass over the scope of other laws. Scope and priority of
laws delimitate to what extent laws should be followed. These scope and priority are understood from
the laws themselves and the teachings of Prophet, Ahl Bayt, their companions, Arabic language, and
juristic reasoning. Generally, issue of scope and priority mostly arise in context of multiple laws
competing to be applied in same situation and context but not all can be applied or when following one
law causes violation of another law. For example, divorce is a right of man, however if a husband is
well aware that divorcing his wife will cause her wife to face imminent harm from her family or
friends or situation then can the husband divorce? Here the conflict of law is between right to
divorce and a) prohibition of taking part in oppression or wrong intentionally or by recklessness
either by direct participation or by assistance b) prohibition of destroying a life intentionally or
by recklessness either by direct participation or by assistance. In such cases priority or sequence
is established: priority by rule, priority by reason priority by equity or both laws working in varying
scope or in sequence. In this example of divorce, we can use “priority by rule” based on the Quranic
principle of saving life so Islamic judge may bar divorce if the wife’s legal representative can raise a
sufficient case of imminent danger or harm to the wife.
There are two functional measures of law: functional law that is, which works if it is
administered and people follow them, and non-functional law that which never or seldom
works because it is intrinsically flawed. Within the first category there is law which works better
and more effective than others in this same kind. Divine law or Shariah law is such a kind of law
which is the best functional law. One important feature of this law is that it sees far ahead to
104
Borysenko, K. (n.d.). The Dark Side Of #MeToo: What Happens When Men Are Falsely Accused. [online]
Forbes. Available at: https://www.forbes.com/sites/karlynborysenko/2020/02/12/the-dark-side-of-metoo-what-
happens-when-men-are-falsely-accused/ [Accessed 30 Oct. 2021].
105
Tamburino (2017). 3 Situations Where False Accusations Ruined Lives. [online] Caplan & Tamburino Law Firm,
P.A. Available at: https://www.caplantamburino.com/blog/2018/july/3-situations-where-false-accusations-ruined-
live/.
106
Boniello, K. (2018). False college rape allegation “destroyed” my life: suit. [online] New York Post. Available at:
https://nypost.com/2018/06/30/false-college-rape-allegation-destroyed-my-life-suit/.
Page | 61
the extent which human reason or understanding may not imminently comprehend. It also
takes into consideration many layers of interconnected variables of human individual and
society in their varied existence. No other than God, who knows best, the human mind and all
possible ontologies, can give the best set of laws. Secular law, that is law created purely from
human reason or emotion does not have this feature. Take the example of rape in secular law.
In USA sex with a minor is considered rape irrespective of the minor’s agreement or resistance,
however in Islamic law it would be considered adultery if the minor was not the wife. Secular
law has not considered the facts that a minor can have sexual desire and desire to bond with a
man
107
. Rape would also be considered if a man was to have sex with a drunken girl because of
her lack of consent while Islamic law has prohibited alcohol and prevented pathways to many
social evils and also wastage of valuable resources.
Even though Islamic law and legal system and secular law and legal system agree on certain
rationale, semantics, principles and law but overall, they are different in major theological,
philosophical and functional aspects. Theologically Islamic law appeals to God and Prophet
while secular law has no such appeals. Philosophically Islamic law proposes patriarchy and
inequality of sexes and gender whereas secular law proposes equality. Functionally Islamic law
proposes a lot of physical punishments whereas secular law proposes almost zero, except may
be jailtime. In terms of actual law and elements of legal wrongs Islamic law and secular law also
differ.
Do we need Islamic law or even law? Some people may reject need for law all together and
some may reject some laws. They will use unachievable but romantic excuses of tolerance,
mercy, forgiveness, charity and sacrifice but we know mankind since his dawn has always
needed law which just shows these excuses in their selves have never been realized replacing
law. Also using these excuses to abandon law will also impede maintaining order and seeking
justice in violation of God's will. These noble values can best be practiced within the existence
107
Rahman, M.M. (2020). The Islamic Society: The Sociological Perspective. www.academia.edu, [online] pp.109–
112. Available at: https://www.academia.edu/45005183/The_Islamic_Society_The_Sociological_Perspective
[Accessed 30 Oct. 2021].
Page | 62
and functioning of law. Law is therefore needed to minimize harm, chaos and conflict and
eradicate the means, pathways and triggers towards these human psychological impulses and
sociological occurrences.
Classical scholars defined Shariah law very broadly and within that broad definition lies many
instances of contemporary “social sciences concerns”. For example, one Shariah instance is the
concept of law which is supposed to guide individual and social behavior to reach a balance in
conflict of interest, maintain order and achieve convenience. Everyone cannot be satisfied that
is why we need to aim balance of conflict of interest to maintain order and achieve harmony.
For example, even though women may be reluctant to polygamy, but Shariah gave right to men
of polygamy thereby achieving balance of conflict of interest, maintain order and realize
harmony. Shariah law obligated women to accept God's decision with spiritual reward and
obligated men to be able to be equitable to all their wives. This is the legal perspective, but
polygamy has many major sociological benefits
108
. We can thus extend from this instance of
Shariah law's definition that Shariah law establishes rights, duties and responsibilities for the
individual, the collective of at least two human agents, the animals and the environment.
Does Islam have a legal system? Legal system is an institution and organization which is a
consequence of the socially accepted political process where people willingly or by force submit
to law, legal people and legal processes. By this, balance of conflict of interest is also achieved.
Legal system and law thus also preserve the political process and guide exercise of power, two
most important requirements for achieving order. Islam has these features spread across its
vast compendium of texts and historical legal phenomenon, so it is proper to say Islam has a
legal system.
Legal science can be defined as rational study of the “state and dynamism” of the mind,
intention, acts and behavior to design enforceable norms. Islamic norms are designed on the
108
Rahman, M.M. (2020). The Islamic Society: The Sociological Perspective. www.academia.edu. [online]
Available at: https://www.academia.edu/45005183/The_Islamic_Society_The_Sociological_Perspective.
Page | 63
basis of Islamic texts and established rules of Islamic jurisprudence, that is human reason
guided by Divine revelation. For example, should harassment or bothering someone without
permission or willingness, thereby taking his private space and personal time, be considered
legally wrong, and thus any punishment be adopted? Yes, it should because Islamic texts
protect one's privacy and right to be left alone and also on the jurisprudential rule of blocking
the means
109
such wrong will prevent social disorder.
Does Islam recognize division of law into criminal and civil? Islamic law has worked for a
thousand year without such division. We need to look at how Islamic jurists divided law. The
similarity may lie in the naming such as Muamalat and Uqubaa. The former is transaction
between people through contract or agreement. The latter is prescribed punishment. One can
name the former as civil and the latter as criminal but on such naming nothing which enforces
secular legal systematic features should be adopted. For example, if a person brings a case
against another of violating contract, then it is no different than if such a person were to bring a
case of assault or physical injury against the same person. There is no such intrinsic thing as
government vs citizen, unless a certain legal wrong has been committed against the
government such as Hiraba to remove the imam, or a member of the Guardian Council. The
same Hiraba can be committed against the members of the society which then would be an
issue among members of the society, that is they can bring case against the criminal or Islamic
government can also bring a case against them. The important point to remember is that a
government can bring case against a criminal even if the victim chooses to forgive and this is
only in the rights of God or issues where security of Islamic jurisdiction is at stake. So, we have
two options of adjudication: a) government vs individual or group to uphold rights of God b)
people vs people
109
It is a principle which suppresses/minimizes/eradicates anything (any mean or cause) which leads to prohibited
belief or act or situation, either with high probability or with low probability but to something whose harm is
potentially immense.
Page | 64
Jurisdiction
Law cannot function without jurisdiction. Without jurisdiction law will just be an advisory
morality. Does Islam propose the concept of jurisdiction? There are many texts of both Quran
and Sunnah which establish the need of jurisdiction. For example, whenever Quran commands
or prohibits by “O ye who believe…”, it often implies a collective obligation and therefore
establishes the need for a jurisdiction.
According to English dictionary jurisdiction is the legal term for the authority granted to a legal
entity to enact justice over people. So, we have authority who can enforce justice
110
over a
people. This also implies jurisdiction can have a boundary or limit in which such authority can
exercise its power to administer law and justice. So, jurisdiction has people and boundary.
Prophet established a jurisdiction in Medina, but he was unable in Mecca. Gradually Prophetic
jurisdiction spread across all of united Arabia. So, Islam also needs a jurisdiction to function.
The people of Islamic jurisdiction are two types by faith: Muslims, non-Muslims; Two types by
law: foreigner and citizen; One type by ethnicity: national. Islamic texts do not clearly establish
the lines between some of these categories.
Are non-Muslims bound by Islamic law in Islamic jurisdiction
111
? We need to ask if Quran is a
guidance for mankind and an obligation for them to obey God or if such obedience and
110
Note that justice and law may not be always same. A law may be oppressive and thus unjust.
111
When God says in the Quran “Oy who believe..” or when Quran commands or prohibits something then in the
jurisdictional sense it means the believers must implement such laws or supervise the implementation i.e. the
believers must be the highest authority in their jurisdiction. It does not mean Islamic laws are only for Muslims to
follow. This is ridiculous.
You will see on the site lawsofquran.com that beside every verse either one of the acronyms FBL and NFBL or
both. Sometimes both because a legal text may contain both aspects of FBL and NFBL.
FBL means faith-based law that is its performance and Implementation must be by Muslims on themselves or on
other Muslims or non-Muslims. This is because such a law requires Islamic faith and religious intention. FBL is
primarily spiritual in nature such as rituals and its rewards are mainly in the hereafter. An example of a law that
requires Muslims to implement on non-Muslims is the prohibition of mosque management by non-Muslims.
NFBL means non-faith-based law that is its performance and Implementation maybe done by both Muslims and
non-Muslims on Muslims and non-Muslims. This is because such a law does not require Islamic faith and religious
Page | 65
obligation voluntary, that is only binding if one chooses Islam? Quran and Sunnah threatens
punishment to mankind if they fail to abide by God’s laws so Islamic law is an obligation for
everyone to follow and jurisdictional enforcement is also justified by this. Rationally morally let
us ask the following: if non-Muslims under Islamic jurisdiction can engage in business activities
of brothels, liquor stores, casinos, night clubs, or perform homosexuality, bestiality, lesbianism
as family and couples, or perform public sexual acts as happens in Holland? Is it not then a
purpose of Islamic law to protect morality, health, wealth and mind of the society specially
when Muslims are the majority? Why will Muslims be exposed to such evils in Islamic
jurisdiction? The only exception is non-Muslims can follow their religious rituals because Islam
rejects forced conversion
112
113
.
So non-Muslims are obligated to follow those Islamic law which do not require religious
intention and belief in Islamic faith to perform, such as prayer, fasting, Zakat, Hajj, Islamic
marriage, Islamic slaughter etc. to name a few. Justification for non-Muslims being allowed to
intention. NFBL is primarily for the structure and dynamics of worldly life and its benefits such as in our individual
and social psychology, society, economy, morality, politics and governance, war and peace, some parts of family
and marriage, etc. It's meant to support our worldly life. Let's take an example from collection of Islamic taxes:
There can be Muslim and non-Muslim Islamic tax collectors and there can be Muslim and non-Muslim Islamic tax
recipients. Another example, there can be a Muslim or non-Muslim person who cuts the thief’s hand and there can
be a Muslim and non-Muslim person whose hand is cut due to thievery, etc.
Rationale: Non-Muslims are under divine address so the NFBL is justified however there is no forced conversion in
Islam, so FBL is justified. Understand that FBL and NFBL do not mean Muslims will be only held accountable in
the hereafter whereas non-Muslims will not be held accountable. This distinction is only for the application of
Islamic law in this world.
112
There shall be no compulsion in [acceptance of] the religion. (Quran 2:256)
113
Imam Ali (a) says that as a caliph and a ruler, he promises safety and security of life, property, honor, social
status and religious freedom of Armanian Christians. This order should be obeyed by his officers and by his
successors. The Christians should not be maltreated or looked down because they are non-Muslims. So long as they
do not try to betray and injure the cause of the State of Islam, they should not be molested but should be allowed to
practice their religion and to trade freely and openly. They should not be overtaxed, should not be humiliated and
should not be forced out of their homes, lands, and trades. Their priests should be treated with due respects, their
monasteries should be protected, and they should be allowed to carry on their lectures, teachings and preaching as
usual and their religious ceremonies should not be banned. If they want to build their places of worship then fallow
and unclaimed lands should be allotted to them. One, who disobeys this order is going against the orders of Allah,
and the Holy Prophet (s) and will deserve His Wrath. (Letter of Imam Ali to the Christians of Azerbaijan)
Page | 66
follow their religion limitedly and obligation to follow Islamic laws can be summarized as a) no
forced conversion b) they are also under the divine address. (Al-kuffar mukhatabuna bil furu al-
sharia).
Nationality is a racial and ethnic connection between you and the state you are in. Citizenship is
however different, and it is only a legal connection with you and the jurisdiction conferring it.
So, citizenship requires legal adherence and gives legal protection to people under a
jurisdiction. Islam recognizes people’s inertial attachment with their ethnicities and tribes
114
,
and this may imply citizenship on the basis of such attachments. During Prophetic time in
Islamic state of Medina foreigner Arabs from other states/localities could just get into Medina
and stay there, while in the process achieved a form of naturalization and attachment due to a)
adherence to laws and culture of Medina and b) longevity of stay. The principle then also
supports open immigration and only specific individuals may be prohibited from entering.
When Islamic jurisdiction has open immigration it will only bring potential development by a)
Bringing in more Islamic tax payers b) More skills and investment c) Islamic harsh laws working
as a balancing act against abusers and exploiters of the system d) Islamic welfare taxation
supporting the local citizens who are unemployed or having low income.
Right to have citizenship is an essential factor in modern world because through it justice and
social welfare can be attained and as Islam obligates the protection of some essential objectives
for not just Muslims but mankind in general then by today’s need Islamic law also adopts
people’s right to citizenship. The grounds for eviction of citizen or foreigner should be based on
Islamic textual law or its rationale and Islamic legislation. Flimsy farfetched excuses cannot be
used to evict anyone under Islamic jurisdiction. Quran allows automatic asylum for the
oppressed so Islamic jurisdiction must never refuse refugees specially if refusing them return
them to oppression and sins. Islamic jurisdiction must care for refugees and upbring them with
moral guidance and skill building.
114
O mankind, indeed We have created you from male and female and made you peoples and tribes that you may
know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is
Knowing and Acquainted. (Quran 49:13)
Page | 67
The difference between foreigner and citizen in an Islamic jurisdiction is not based on
discriminatory laws
115
116
but between certain rights and duties which must be fair and just. So,
non-discrimination is the principle and dominant practice. Quran negates discrimination by the
highest standard i.e., denying family attachment in justice. Justice is the basis by which all
policies are to be determined in Islam. In the last sermon of Prophet, we see there is no
distinction to be made based on color or race. In Islam differentiation can be done based on
righteousness and merit of the person, rationality and justness of the policy. If it is a matter of
allocating government resources, opportunities and benefits between citizen and foreigner
then all who pay the Islamic tax have equal access to these.
As the principle is non-discrimination so it primarily applies to right to life, right to justice, right
to sustenance and livelihood, right to knowledge, education and information, right to welfare
and charity
117
, right to marriage and family, right to self-defense against injustice, right to own
property, right to participate in Islamic election and freedom from liability.
This non-discrimination of Islam is against nationalism, racism, tribalism etc. which Islam rejects
due to being discriminatory and exploitative based on ethnicity, color and language: only
prioritizes the people and businesses of its dominant ethnicity/group, is based on whatever
empowers the ethnicity and it’s people irrespective of the means and ends, justice is limited
and often impeded by slogan of national interest and ethnic empowerment and sees foreigners
under it as exploitable opportunity.
Legislation
115
O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against
yourselves or parents and relatives (Quran 4:135)
116
Imam Ali (AS) said, ‘The most just from all creation is he who fulfils rights most indiscriminately.
’[Ghurar al-Hikam, no. 3014]
117
The Islamic welfare recipients are not supposed to pay any tax but rather receive welfare so a local and
foreigner has equal access to this, but amount received may vary depending on economic and other conditions.
Page | 68
What is legislation in an Islamic jurisdiction? Propose and adopt policies, rules, laws,
frameworks and plan to implement the textual laws and guidance of Islam and/or it's
deductions and rationale. The duty of the Islamic legislature is also to help people know laws of
Quran and Sunnah so this means Islamic legislature must be able to express such laws with
clarity, precision and organization. This is needed because, unlike issues of primitive times
issues of current times are complex.
The Islamic legislative is a section of the Islamic government consisting of the Imam, the
Guardian Council, and the Shura Council. The Islamic state is an independent Islamic legal
jurisdiction with territorial integrity and political Islamic system and culture. While proposing a
legislation the Islamic member of the Shura Council must understand the daily life of a Muslim
and other citizens and realize how the day for them start or should start, how it goes through or
should go through and how it ends or should end. This will help them adopt well thought
Islamic laws for the betterment of Islam, Muslims and non-Muslims.
The Islamic legislative must neither believe that man is inherently good and rational so freedom
must be given preferably and unchecked, nor believe that man is selfish and greedy so control
must be asserted always. The real view is in between: Man is composed of both good and bad
and that he must choose, and it is the duty of Islamic legislative to fashion laws which help man
choose good over evil or prevent him from evil. Man is also potentially rational and also bestial.
It is not the case that he is always guided by reason that his individual liberty will be good and
perfected and neither it is true that he is always guided by bestial impulse, that he needs to be
monitored and guided always. Islam thus proposes a balanced guidance, so man realizes his
rational nature and suppresses his bestial impulsive nature. When passing Islamic legislation
the Islamic legislature must consider the nature of man from Quran and Sunnah and also from
strong sociological studies. The Islamic legislative must always measure laws towards achieving
rational freedom.
Islam is neither wholescale collectivism which historically have often been validated under the
totalitarianism of ruler nor Islam is secular liberalism where individual freedom is unchecked
leading to individual, social, moral and health harms. It is a balance between Ummah
Page | 69
collectivism and individual liberty. The legislative branch must perceive the Islamic society not
as a collection of selfish individualist people but as collection of individuals who often form a
collective whole for a purpose. Islamic legislative thus must design and adopt laws to guide
society and help it understand it's purpose and to achieve it. The Islamic legislative must
understand that the Islamic society is not solely profit seeking capitalist and neither controlled
socialist but in between, where private property and private financial initiatives are allowed but
on the condition that they must contribute to human, social and environmental welfare.
Is the Islamic legislative based on the secular concept of parliamentary sovereignty? No, it is
not. The Islamic legislative cannot just make any enforceable law because the Islamic legislative
is only an instrument for realizing the Quran, the Prophet and the Ahl Bayt. The enforceable
legislation must follow the following rules: a) It must enforce what God, His Prophet and Ahl
Bayt obligated or prohibited for the collective existence, betterment of society
118
and collective
interest. Collective existence excludes beliefs or acts which are of personal nature and thus
beyond its enforceable capacity. For example, prayer or fasting cannot be enforced on
individuals because these acts require intention, sincerity and devotion. One cannot be forced
to achieve these. b) The legislation must be able to achieve objective and purpose in the texts
of Islam. Major legislative principles towards this end are blocking the means, obligating the
means, continued interest such as benefits any of Islam, mind, wealth, honor, life or morals. c)
The legislation must not contradict established textual ruling unless textually justified and
temporary. d) The legislation must not seek to replace or add more to textually existing law. For
example, the legislative cannot impose any new tax on people's wealth and property. Islam has
already imposed taxes of Jizya, Khumus and Zakat so new taxes cannot be imposed on the
people e) Legislation must ensure compliance, administration, enforcement and facilitation of
laws of God by adopting policies, practices and theories. While designing legislation the
legislative must be clear and precise and clarify scope, priority and, if any, conflict with other
existing Islamic laws and legislation.
118
An instance of betterment of society is not allowing landlords exploit the tenants.
Page | 70
In the Islamic jurisdiction as people are not the source of power then it follows that the validity
of such groups and interests of the interest groups must be seen through Islamic law, its
purpose, objectives and spirit. In this way Islamic legislative can maintain balance rather than
exposing the society to irrational impulses. The legislative should consult experts in the relevant
field before they design any Islamic legislation towards such issue or group or wider society. If
multiple interest groups have interest in an issue on which legislation is being pondered by
Islamic legislative, then all the groups must be heard with equal importance and consideration
and priority determined by text, morality, reason or justice. Expert advice may also be needed
on how best to implement a textual law.
Every legislation must have a legislative text or document which details the legislation and then
another document which rationalizes the legislation so that people and experts may
understand the rationale behind the legislation. This rationalizing document will help the
judiciary and the executive to understand the legislation and use it effectively.
Which legislative proposals are to be debated
119
120
and considered and how long should such
consideration and debate last? First of all, proposals which aim to realize the texts of Quran and
Sunnah must be considered and as long as these texts are not adopted and implemented
debate must continue. Then there are proposals from Islamic governmental institutions and
agencies which need to be considered based on the subject matter, importance and urgency.
Then there are proposals from members of the Islamic legislative, and if such proposals are
from Imam or the Guardian Council it needs to be considered, analyzed and debated and if such
are from the Shura council then depending on the subject matter, importance and urgency it
needs to be considered and debated. All final draft of any legislation must go through the
consent of the Guardian Council and the Imam. The Imam has the final say.
119
Imam Ali (AS) said, 'He who tackles all sides of an opinion will know where the pitfalls lie.’[Nahj al-Balagha,
Saying 173]
120
Imam Ali (AS) said, 'He who obstinately holds his own opinion is ruined, and he who consults other people
shares in their collective understanding.’[Nahj al-Balagha, Saying 161]
Page | 71
The debate surrounding a legislation must take place on the basis of Socratic method and
Hegelian dialectic
121
, rather than bullying, name calling, abuse, joke or character assassination.
This means the members of the legislative must be morally upright, merited and intellectually
mature. In case of deadlock and prolonging of time the argument or arguments "for and
against" the legislation must be presented to the academic logicians who will determine which
position has the strongest and/or sound argument or arguments. The position with the
strongest inductive and/or sound deductive arguments will win
122
. Some metrics of strong
inductive argument are best explanation and supported by strong statistics and probability.
When we have applied these intellectual standards for legislative process then we have truly
achieved Islamic meritocracy and Plato's philosopher kingdom.
Judgement
Philosophy and Theology
According to Cambridge dictionary to judge means to form, give, or have as an opinion, or to
decide about something or someone, especially after thinking carefully. But Islamic concept can
be narrowed down to moral, character and judicial judgements. Judgement is done to achieve
justice. Justice can be defined as doing the right thing in the right time in the right way. Justice
can be known by divine revelation and reason. Justice has a general abstract sense and a
specific implementational sense. Justice is Divine and central to Islam
123
. It must be and it has
two connotations: justice of God and justice from God. When we disconnect from this source
and depend wholly on human reason, we lose the concept of justice. Take the example of
slavery. Most of the human existence slavery was the norm, contributed to society, and mostly,
121
Imam Ali (AS) said, 'Use some opinions to attack other opinions and the valid one will emerge thereof.’[Ghurar
al-Hikam, no. 2567]
122
Imam Ali (AS) said, ‘Doubts are dispelled through repetition of one’s thought processes. [ Ghurar al-Hikam, no.
4271]
123
Imam Ali (AS) said, ‘Allah, Glory be to Him, made justice a support for mankind, an eliminator of wrongs and
sins, and an elevator of Islam.’[Ghurar al-Hikam, no. 4789]
Page | 72
slaves had accepted it as normal. Reason was used to justify and explain slavery as well. It is
only in the last few centuries, mostly a century, that slavery has become so evil unjust practice.
Justice is Divine and in each of us God has touched us with a sense of Divine morality and
concept of justice. As soon as we abandon God and solely appeal to human reason and human
culture, we lose objective justice. Science cannot study or ascertain justice because science is
amoral and only gives us objective information about what the five senses can access. So
scientific reasoning is tied within the context of the five senses into the physical existence.
Moral reasoning on the other hand must be tied within the context of the soul on the guidance
of Divine revelation into the realm of justice.
God is the ultimate Judge. God looks into our beliefs and acts, and judges accordingly, but
wealth, looks or social status have no weight in Divine justice. This Divine nature of justice is
also reflected in His guidance, the Quran and Sunnah, which guides us to judge by belief and
action. Judgmental society is not bad but acts as preserving entity based on moral guard and
moral awareness. Judgmental society prevents bad and wrong people from infiltration and
gradually taking over. The Islamic judge and the Muslim individual thus make judgements on
belief, act, behavior and the human agent subscribing to the belief and performing the act or
behavior.
Judgement in this world is always probabilistic, based on weight of proof, evidence and reason
while judgement in afterlife is final, complete and certain. Judgement in this world is on belief,
act and character of the person while judgement in the afterlife is on the soul, that is final
abode in heaven or hell.
An act, belief or behavior is good/bad if it has spiritual reward/punishment and right/wrong if it
benefits/harms. Benefit and harm thus give a rule-based perspective to right and wrong, that is
if somethings are done or not done according to rules then it is right/wrong, because
performance by rule may cause benefit or failure to perform by rule may cause harm.
Happiness or sadness are not measures of morals in Islam. For example, if you make a poor
person happy or sad then your act is not good/bad, right/wrong not because of
happiness/sadness contributed to the poor but because there is a spiritual reward/punishment
Page | 73
and benefit/harm in helping/assisting the poor as you have addressed the helplessness of God's
oppressed creature and contributed to his or her mental/physical/financial benefit/harm.
Understand that an individual or a collective has two main pathways of life: interaction with
others and making a judgement call or decision point. This interaction with others is often while
people do amoral acts. People every day, mostly are engaged in many amoral acts such as
waking up, brushing teeth, eating rice, drinking tea, getting ready for work etc. While we are
interacting with amoral states of people it should be based on Islamic character of fairness
124
,
honesty
125
, gentleness
126
, generosity
127
, charity
128
, amicability
129
, humility
130
, modesty
131
,
sincerity
132
, and cautiousness
133
. Then people create moral states by engaging in good/bad,
right/wrong acts, beliefs and behavior and this is the judgement point.
124
Imam Ali (AS) said, ‘Fairness brings harmony between hearts.’[Ghurar al-Hikam, no. 1130]
125
The Prophet (SAWA) said, ‘The best of earnings is the earning of traders who when they speak they do not lie,
when they are entrusted with something they do not betray, when they promise they do not breach, when they buy
they do not defame [the goods], when they sell they do not praise [their own goods], when they are in debt they do
not delay its repayment, and if they are owed [money] they do not force [their debtor].’[Kanz al-`Ummal, no. 9340-
9341]
126
Imam Ali (AS) said, ‘Spoiled is the noble descent of a man who has no good manners.’[Tuhaf al-`Uqoul, no. 96]
127
Imam al-Sadiq (AS) said, 'Generosity is when the act of giving is initiated. When it is prompted by a request
however, it is merely out of a sense of embarrassment or obligation.’[Bihar al-Anwar, p. 357, no. 21]
128
The Prophet (SAWA) said, …‘Your removal of an obstacle from the road is a charitable act; your guiding
someone the way is a charitable act; your visiting the sick is a charitable act; your enjoinment of good to others is a
charitable act; your forbidding others from wrongdoing is a charitable act, and your returning the greeting of peace
is a charitable act.’[Ibid. v. 75, p. 50, no. 4]
129
Imam Ali (AS) said, ‘The fruit of [strong] intellect is amicableness with people.’[Ghurar al-Hikam, no. 4629]
130
Imam al-Sadiq (AS) said, ‘Humbleness is when a man sits in a place lower than his rank.’[al-Kafi, v. 2, p. 123,
no. 9]
131
Imam Ali (AS) said, ‘One who is not ashamed in front of people is not ashamed in front of Allah, Glory be to
Him.[ Ghurar al-Hikam, no. 9081]
132
Imam al-Sadiq (AS) said, ‘The pure action [done out of sincerity], is that which the servant does not wish to be
praised for by anyone except Allah - Mighty and Exalted.’[al-Kafi, v. 2, p. 16, no. 4]
133
Imam Ali (AS) said, ‘Beware of the world, for verily it appears sweet and green, surrounded by carnal and base
desires.’[Nahj al-Balagha, Sermon 111]. Desire which Islam rejects is desire to do prohibited things and desire to do
permissible things with the intensity that it makes one lazy in obeying God.
Page | 74
In order to judge socially the human agent should have reasonable information and knowledge
about the human agent in relation to the belief and act, and proper relationship established,
such as knowledge about the belief and intention to act. So Judgement, legal or social, must be
sincere and should result in proportional rightful or rational conduct. Judgement does not mean
or demand unnecessary suspicion, even though at times reasonable suspicion may save people
from potentially grave danger, especially in this context of secular infestation of dishonesty,
cheat, might is right moral, deception and character exploitation etc.
The reason one or more parties may seek the judgement or decision of an Islamic judge is due
to a legal wrong, injustice or seeking remedy, or judge enforcing a decision relating to rights of
God, rights of man, public interest or objective and purpose of Islam. However social judgement
is different, and many people today shout the slogan of "don't judge". This is a bad precedent
and a consequence of selfish and individualist society which suffers from moral uncertainty and
moral confusion. Islamic society and the Muslim must be able to judge socially and to do this he
or she must have strong Islamic moral knowledge and understanding.
The reason an individual may judge others is due to a decision point in his or her life. Such a
decision may be anything from self-awareness, marriage, seeking or abstaining friendship
134
,
getting involved with someone, employing someone etc. For example, in the employment the
employer judges a potential employee in the probation period, judging not only skills but also
the character, behavior and mindset. Depending on the sensitivity and importance of the
decision the judgement will be also sensitive and important.
Sometimes an individual may face situations when judging someone is difficult because a
person's belief or act may be ambiguous depending on its amorality or morality. Say for
example in a shop when you are browsing things to buy or approaching the shopkeeper, the
shopkeeper ignores you. This behavior may be amoral or moral depending on whether it was
done innocently or with some motive and underlying belief such as racism or xenophobia or
134
Imam Ali (AS) said, ‘Beware of befriending corrupt people, immoral people, and those who openly commit acts
of disobedience to Allah.’[Ibid. no. 2601]. This also includes blood relationship so keeping relationship in Islam is
based on healthy grounds. One cannot expose oneself to harm, exploitation and abuse in a relationship, even
matrimonial which is the most cherished and blessed relationship to God.
Page | 75
whether the shopkeeper failed to do his duty of giving service to customers by giving them his
attention. How can you know this ambiguity? If it is amoral act, then no judgement is necessary.
If it is a morally wrong act because shopkeeper is required to give service, then you can judge
the shopkeeper as lazy or undutiful owner/employee. If it is a morally bad act because the
shopkeeper, did it on xenophobia and racism then you can judge the shopkeeper as bad or evil
character. If you do not have any evidence close to this incident or close to the shopkeeper
such as his biography or reputation, then you need to appeal to more distant principles or
norms or facts such as if the society practices racism and xenophobia against your kind or if
shopkeepers are lazy and undutiful. So, a semantic, norm, fact or principle relating to a belief,
act or situation may help in both legal and individual judgement, depending on the specificity,
clarity, precision and cultural context of such proof/evidence. In case no evidence or supporting
proof is available then it is best to avoid judging the belief, act and the person in question.
Muslims should not be naïve, stupid, meek and gullible and having a judgmental mind is part of
being wise and aware.
From the shopkeeper example another ethical ontology arises which is can a single bad or
wrong act give us a basis to judge a person’s character (not soul)? Yes, it does. If a person has a
single bad or wrong belief, act or behavior then it is highly likely he may have others, just as if a
person has a good belief, act or behavior he may have other of the same kind
135
.
What may be the consequences of legal or social judgement? These can be advising the judged
person
136
, forgiveness
137
, ignoring the judged person
138
, seeking remedy, criticizing the judged
belief or act, warning people about the judged person
139
(for example registering sex offenders
135
Imam Ali (AS) said, ‘When a man has a pure and praiseworthy quality then expect him to have other such
qualities.’[Nahj al-Balagha, Saying 445]
136
The Prophet (SAWA) said to his companions, ‘Religion is advise.’ We asked, ‘For whom?’ He said, ‘For Allah,
His Book, His Messenger, the leaders of the Muslims, and the general people.’[Sahih Muslim, no. 55]
137
Hold to forgiveness; command what is right; But turn away from the ignorant. (Quran 7:199)
138
Ibid
139
“The Prophet (SAWA) said, ‘Four types of people are such that talking about them behind their backs is not
considered backbiting: the immoral person who makes a public display of his immorality; the dishonest leader who,
even if you were to be good to would not appreciate you and if you were to be bad to would not forgive you; those
Page | 76
and informing the society about them - US law), be proportionately violent
140
, raise the issue to
Islamic court or enforce legal punishment. Legal judgement results in reward or punishment or
adoption of policy while social/individual judgement results in mental and/or functional
acceptance or rejection of someone, some belief or act, warning society about someone's evil,
belief or act, warning or advising or thanking the judged person about his or her wrong or good,
or taking an initiative or action for or against someone.
When should we practice forgiveness once we have judged a person through his or her moral
act, belief or behavior? First of all, justice in Islam is better than forgiveness which is a
consequence of generosity and mercy
141
. Forgiveness is withholding of punishment or
retaliation from the deserved and/or not wishing punishment (spiritual, physical,
material/financial) or retaliation for the deserved. Islam also gave right to desire punishment or
retaliation for the wrongdoers as well, as Prophet prayed, on many occasions, against the
enemies of Islam. In many hadiths prophet also cursed and desired punishments for certain
categories of sinners whether such sins are against God only or man or both. So, punishment
and retaliation can be spiritual or legal.
For legal judgement, God's rights cannot be forgiven and when it comes to the victim and the
accused then only the victim can forgive provided that such forgiveness does not set a
dangerous precedent or causes some kind of social harm. When it comes to individual and
social forgiveness then understand that Islamic forgiveness is rational, rather than self-
destructive or meek. Forgiveness may be triggered in response to a wrong and in substitute for
justice against the wrong. A wrong can be also defined as any unjust, dishonest, or harmful act
who joke about their [and others’] mothers; and one who is a dissenter, who defames my community, and draws his
sword against it.’” [Bihar al-Anwar, v. 75, p. 261, no. 64]. It is not backbiting if the person a) does not dislike
sharing the information about him/her, b) the information about him/her is not private c) the information about
him/her, if not shared, will expose people to grave danger from such a person and d) is an enemy of Islam.
140
So whoever has assaulted you, then assault him in the same way that he has assaulted you. (Quran 2:194)
141
Imam Ali (AS) was once asked which was better, justice or generosity, to which he replied, ‘Justice puts things in
their rightful place, whereas generosity takes them away from their course. Justice is a general predominant state,
whereas generosity is a transient characteristic. Justice is therefore the nobler and better of the two.’[Nahj al-
Balagha, Saying 437]
Page | 77
or belief which is expressed whether in public or private. There are categories of wrongdoing
such as wrong against oneself or wrong against another, whether property, animal or human.
There are also levels of wrongdoing such as breaking promise with your son as being minor, to
creating corruption and bloodshed on earth unjustly, being very severe. A wrong can be done
intentionally wholly, or intentionally under duress or mistakenly/by error
142
. As there are levels
of wrongs then there must be also levels of forgiveness. The extent of forgiveness depends on
the level and extent of the wrong and it’s consequence.
Now the question is when should one forgive? Some of the conditions of forgiving the
perpetrator of wrong can be a) The perpetrator must not be a part of ideologically aligned
active hostility against Islam and Muslims. However, forgiveness is to be considered only when
such a perpetrator’s hostility has ceased due to apprehension or capture or other incapacity
and only if the perpetrator has been misinformed of Islam and Muslims and had no means to
know. Until the case is such, the Muslims must not be forgiving so benefit of the doubt is not
given to the perpetrator of the wrong b) Must not be persistent in wrongdoing which may be
evidenced by his biographical investigation, credible reports or statistics. c) The consequence of
the wrong must not be severe. d) Only the victim is allowed to forgive or those acting on behalf
of the victim e) No forgiveness in violation of God’s right if apprehended for legal judgement. f)
Commitment of the wrong must have been unintentional. If under duress the probability of
forgiveness increases to the extent and severity of duress. g) Forgiving the perpetrator of wrong
may turn him towards good with a high amount of probability. h) The perpetrator has
committed wrong for the first-time c) The perpetrator was under duress, extreme stress and/or
mental health issues. These guidelines are not only usable by the individual or the society but
also governmental organizations, for example Islamic police can use these to decide whether to
apprehend a law breaker or pardon.
Does judgement demand hating the judged person and for which the person was judged? The
concept of hate in Islam is established on the principle of God’s Honor
143
and the hadith
142
This means the defendant had no intention to do the act or bring about a consequence by his or her intended act.
143
You will not find a people who believe in Allah and the Last Day having affection for those who oppose Allah and
His Messenger, even if they were their fathers or their sons or their brothers or their kindred (58:22). It is crucial to
Page | 78
principle of loving for sake of God and hating for sake of God as part of faith. So, whoever God,
His prophet and Ahl Bayt hates, the Muslim must hate. This hate however must not translate to
doing injustice, the hate must not be collective except in certain situations, the hate must be
against ideology, belief or act.
When should Muslim do collective hate?? For example, should Muslim hate Hindus, Christians
or Jews? First let’s clarify something. There are two types of identities: natural and artificial.
One’s ethnicity is natural identity but one’s group ideology is artificial identity. For example,
one cannot hate Turkish or Arab ethnicities even though racism and nationalism are
widespread in these. However, one can appreciate or hate artificial identity. For example, a
person can appreciate a monk of the order of St. so and so because of the group religious
ideological identity and likewise a person can hate an agent of Hindutva also because of its
group ideological identity. As to the matter of hate there are two types of hate: spiritual hate
and functional hate. Both demands rejection and aversion of ideology. Spiritual hate means
rejecting their ideologies by heart and under Islamic jurisdiction controlling it by law. Spiritual
hate must not mean shun these people or do wrong and injustice against them
144
145
. Then
there is functional hate which demands shunning the ideology and people subscribing to it
except under duress or necessity
146
. Functional hate is against those who are active in hostility
against Islam and Muslims because of being Muslim, either individually, by group or due to the
drive of their ideology of hate against Muslims
147
. Their ideology must be rejected by heart and
understand the meaning of oppose here and its best understood in its demonstration and scope of existence.
Opposing means not only disobeying God and Prophet but rather showing contempt, hatred and impeding others or
taking measures so God and His Prophet are not followed.
144
Allah does not forbid you from those who do not fight you because of religion and do not expel you from your
homes - from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly.
(Quran 60:8)
145
They may be heathens and polytheists but being our subjects, and human beings, they do not deserve to be driven
away from us and treated harshly". (Nahjul Balagha, Letter a19)
146
…except if you indeed fear a danger from them… (Quran 3:28). This is when Muslims are inferior in position
unable to have the upper hand
147
Allah does not forbid you from those who do not fight you because of religion and do not expel you from your
homes - from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly.
Allah only forbids you from those who fight you because of religion and expel you from your homes and aid in your
Page | 79
criminalized under Islamic jurisdiction. Muslims must shun them and not interact with them
under Islamic jurisdiction because they have already committed a crime by declaring their
allegiance to a criminal ideology. Examples of such ideologies are Hindutva, Nazism, KKK,
Zionism and its agents.
Hate is a motivation to fight and resist evil. Hate together with justice act as a shield to preserve
the Islamic polity and Muslim mind from our open enemy the Satan and his cohorts. Numerous
Quranic verses and Hadiths of Prophet command Muslims to hate the enemies of God and their
ways
148
. Hate against Islam’s enemies is not out of fear of the enemy or their ways but out of
justice, love for God and His religion to achieve His pleasure to succeed both in this world and
the hereafter. Hate which rises from the principles of satanism such as indulgence, hedonism,
pride, greed, lust, envy, gluttony and exploitation are what is driving and driven racism,
nationalism and tribalism etc. all secularistic hate platforms. Islam rejects this hate.
When a Muslim realizes his origin and root in the heavens, he becomes determined to show
loyalty to this root and origin as he realizes the reality and truth of God on earth as in heaven.
The Muslim finds peace, joy and satisfaction in this truth and any who shows hostility towards it
becomes the enemy. So, the Islamic hate is a way to preserve the totality of self-perception,
welfare of creation, justice and rightful dominion of the Creator. Now there are other kinds of
hate which rises from the principles of satanism such as indulgence, hedonism, pride, greed,
lust, envy, gluttony and exploitation. These are what is driving and driven racism, nationalism
and tribalism etc. all secularistic hate platforms. Islam rejects this hate.
In some instances, the non-Muslim is not equal to a Muslim in getting legal remedy such as in
Diyyah. This is equitable justice. The rational is spiritual and tied with loyalty to God. As non-
Muslim is not loyal to God and rejected Him then it follows that such a person is not entitled to
what a Muslim, who has loyalty to God, gets. If an employee rejects loyalty to the boss and
does not perform his or her obligations most bosses will kick such an employee out, but few
expulsion - [forbids] that you make allies of them. And whoever makes allies of them, then it is those who are the
wrongdoers. (Quran 60:8-9)
148
Quran 60:4, Quran 3:119, 58:22, 3:28, 60:1 and many more.
Page | 80
merciful bosses will still continue to employ him or her but with limited benefits and
compensations. So, the difference between a Muslim and non-Muslim in getting legal remedies
is difference between a loyal employee and a disloyal employee. However Islamic legislation
cannot create discriminatory laws between Muslim and non-Muslim, as it is only established in
specific instances established by specific texts. This is because, justice is of two types: equality
and equity. Equality is in the means and is intermediary while equity is in the outcome and is
final. Islamic justice is mostly equity and lesser about equality given human diversity,
differences and variations both externally and internally, equality cannot always be achieved,
rather it may be destructive at times to even try to achieve equality.
Steps in Judgement
Judgement consists of a) correctly interpreting the law as it exists b) applying it in its supposed
instances of activity or extending it to new situations through judicial interpretation and c)
creating the correct ontology of facts. So, the steps of judgement basically are first ascertaining
the issue or the dispute, then the facts in sequence, then choose the relevant law/s at first
instance of understanding the issue and the facts. Then move deeper into the semantics of law,
interpret it and apply to the facts then finally reach a judgement. The whole process is
algorithmic and can be termed as the rational process of judgement (an example from Quranic
story of David
149
).
Facts must be ascertained precisely or as accurately as possible so that semantic or ontological
misrepresentation of facts are to be avoided. While ascertaining the sequence of facts and
complete ontology of facts, evidence is also included and decided upon. Apart from
material/factual evidence judgement may be given based on rationale such as Islamic legal
maxims, reductio ad absurdum, likelihood, common sense, causality and correlation among
other things. These rational constructs cover a wide range of legal issues, of the important ones
are ownership, property, right of, duty to, responsibility for and state of things. So, we have to
identify the relevant law/s, understand it, understand the fact/s and build its ontology and
149
Quran 38:21-26.
Page | 81
sequence and in the process also identify evidence whether factual or rational. In case of
ambiguity, vagueness and equal weight of opposing proof or evidence, unless specified by
Islamic text, benefit of the doubt shall be given to equity (fairness), the helpless, seeking
easiness and removing harm.
When identifying the proper law for the issue and facts at hand the judge first and foremost
must look in Quranic and Hadith texts which can be called Divine Code Law, and not Islamic
legislation from the legislative. If the judge finds a text or texts relevant to the issue and facts,
then the judge will see Islamic legislation if any legislation clarifies or addresses the texts in
question and if not then if classical Tafsir or Fiqh has explained such text or texts. In absence of
Islamic text, the judge will look into Islamic legislation. In absence of Islamic legislation, the
judge will use rationality and subsidiary principles from Islamic jurisprudence including Islamic
legal maxims to establish or find the proper law or rule or principle to be applied on the issue
and facts.
The priority of Quran and Sunnah as the first sources of law indicate that any citizen of the
Islamic jurisdiction can seek the help of the Islamic court if he or she feels their rights have been
violated as per Quran or Sunnah, so it is not necessary that a written legislative law should exist
always. However, citizens must seek expert legal advice to see if the Islamic judge will accept
such Quranic or Sunnah text/s being relevant or potentially applicable to their issues. Towards
this end the legal experts/lawyers etc. can prepare a legal rationale in support of their clients'
issues being within the scope of Quranic or Hadith text. So when a plaintiff or person brings an
accusation against someone it must be seen that there was indeed a case between them which
needs adjudication or proposing a judicial policy. There should be a reasonable and credible
connection between the two.
Jury
Jury is rejected in Islamic legal system because jury can be emotional, biased, lack expertise of
law and fact, may engage in moral vices while in the act of being jury, costs resources and time
consuming, and most importantly never used by Prophet or Imam Ali.
Page | 82
The Islamic Judge
The Islamic judge is a man as part of Quranic patriarch construct and interprets Islamic law
based on Usool Fiqh and the Islamic legal maxims, decides cases and proposes legal injunctions.
The Islamic judge has control over the case. The Islamic judge depending on the type of court
he is employed in has an investigative power, a mission of assistance to victims and a mission of
mediation, the power to enact recommendations and the power to promote equity.
Islamic law does not have precedence. A judge cannot make law but can only establish and/or
enforce the law of Shariah from Quran and Hadith and other subsidiary sources in Islamic
jurisprudence. While secular judges can at times whimsically
150
create new law which may be
overruled by other judges, in Islamic law consistency is of paramount importance. Most often
Islamic judge will apply Islamic legal maxims and other tools of reason, in case no other sources
of Islamic law can be utilized or Islamic legislation does not exist. This is the closest that Islam
gets to secular judicial process in terms of rationalizing judgement.
The judge must explain his decision, be rational and reveal his sources, if any, when acquiring
exclusive information that may motivate his judgement. This is to ensure that the judge has not
been motivated by outsiders against any of the client, and that the legal representative may be
able raise an issue against judge’s sources. The judge cannot bring any evidence for or against
any client because that would be unjust and taking sides, but the judge may assist in bringing
evidence by justification from any of the parties in the case. The judge must allow equal
opportunity to both parties to present their cases without consideration of their backgrounds
or attachments. The judge may bring in experts for clarification or allow legal representatives to
bring such. The judge cannot refuse to accept any relevant and admissible evidence from either
party
151
.
150
An example of this is found in Texas vs Johnson 491 U.S. 397 (1989) where US Supreme Court ruled that
burning a flag fall under the First Amendment’s protection of free speech. This is whimsical because speech is
linguistically or rationally not the same thing as act of burning a flag.
151
“And let not the witnesses refuse when they are called upon” (Quran 2:282). This verse implies the obligation of
allowing evidence.
Page | 83
The Islamic judge must have the most noble qualities of judge. Some of these qualities can be
understood from Prophet David which are knowledge and understanding of the law and
knowledge and understanding of rhetoric, logic and critical thinking
152
. The Islamic judge should
understand Aristotelian logic and Socratic method so that any legal representative does not use
invalid or unsound argument to derail the witness or invalidate the content of the witness.
Tricky questions where there is no simple yes/no answer must be barred and the witness must
be allowed to explain in detail. The purpose of revealing Hujja is to get enough credible
information to establish justice. Semantic trickery and deception from the legal representatives
cannot be allowed to impede this objective. The Islamic judge must understand that misplaced,
incorrect and irrelevant questions are not raised at the trial. He must ensure that any argument
or statement made are related to the issue, law, procedure and fact and are relevant, precise,
significant, clear, strong and true.
The administration of the judicial proceedings must be equipped to handle up to date
documentation of the proceedings in minute details. The judge, considering the gravity and the
intensity of the case, can suggest the time for presenting evidence and witness.
How to differentiate between a plaintiff and the defense? The plaintiff is one whose claim
contradicts the presumption of continuity whereas the defense is one whose claim stands on
presumption of continuity. For example, a person claims debt against another person then his
claimant is the plaintiff because the principle is freedom from liability unless context or custom
shows otherwise. Context or custom would be for example, practice of discrimination has
become widespread and common knowledge against certain ethnicity under Islamic jurisdiction
that is such a case the claimant or the accuser of discrimination must not prove discrimination,
but the defendant must prove no discrimination has taken place.
Can the judge's ruling be appealed? Appeal in Islamic law is not an automatic transference to
the higher court but requires valid grounds to be re-examined by another court and judge.
These grounds of appeal are: previous judgement contradicts Islamic text, legislation or valid
administrative rule or was based on a weaker interpretation of such, the judgement lacked
152
We strengthened his kingdom and gave him wisdom and sound judgment in speech. (Quran 38:20)
Page | 84
consideration of some facts, proofs or evidence, judgement was given in haste, in a state of
anger or lacked soundness of the judicial mind or disregarded some procedures, or any of the
parties in the case was related with or enemy of the judge or the judge committed some
morally prohibited act such as adultery, or drinking alcohol or taking bribe or any moral,
cognitive or social expression from the judge which can put his credibility in doubt.
Plea Bargain
Plea bargain can be entered into by the parties in front of the judge only in those issues where
Islamic texts have not specified specific punishments or rules, and in those issues where Islam
has given a right to the victim to forgive and abandon right to seek justice. Is there something
as royal pardon in Islamic law? No, the imam just cannot forgive any legally judged person
whimsically like a king. Imam’s pardon is similar to the conditions of plea bargain and that if the
judged person has done a crime or wrong against the Islamic government. So, its most likely
that the imam may be able to forgive some Tazeer wrongs or crimes.
Legal Wrong
What is Legal Wrong?
A legal wrong in Islamic jurisdiction is any violation of enforceable law either by performance or
failure to perform
153
. All laws of Quran are de facto law of the Islamic jurisdiction but not
necessarily enforceable. Non-enforceable laws of Quran and Sunnah are those that are
personal such as ritual and worship
154
. Enforceable laws are in Quran, Sunnah and also made by
Islamic legislation. Enforceable laws are a) that which has a textually specified punishment b)
that which if not enforced will have a worldly effect c) that which is for the collective welfare
153
Failure to act or perform happens in violation of when there is a duty to act or perform. For example, Islamic
government would require all earning people to file their incomes for sake of Islamic tax. Failing to do so would be
failure to perform. Laws obligating and/or proposing duty to act can be found from texts of Quran and Sunnah, its
rationale and semantics, and also Islamic legislation can also propose such laws.
154
A ritual in Islam is anything which is directed purely towards God and has a step by step protocol, an algorithm.
Prayer, fasting hajj, manner of slaughter etc. are purely done towards God and have detailed protocols.
Page | 85
and interest of Islamic society d) that which if not implemented will result in physical or
material or existential harm. These conditions include almost all the commands and
prohibitions of Quran and Sunnah. Violation of law will beget consequence such as spiritual,
physical or financial. It is the latter two that will be enforced and administered by Islamic
jurisdiction. For non-enforceable law such as rituals and worship, if a Muslim do not pray or fast
for example, then the punishment is spiritual. The demand of prayer is devotion but by force or
punishment devotion cannot be created. So, these are non-enforceable laws.
Legal wrong is known by participation in relevant activity for which the law or laws were
designed. For example, a person wanting to open a business will need to know the relevant
laws for opening and running an Islamic business. Legal wrong is also informed by
governmental publication, education and periodic information to the society. Moral laws which
affect everyone such as law of hijab or prohibition of drinking alcohol or pork etc. are such laws
which are informed to every member of the society by distribution through the Mosque and
relevant social institutions.
Participation in a legal wrong varies, so it needs to be determined who is responsible for what
wrong and to what degree. Two essential types of participation are direct and assistance. There
can be many states of direct and assisting participation. Can one who assists in the performance
of legal wrong also guilty and responsible? Yes, assistance in legal wrong also begets either guilt
and/or responsibility
155
156
. Some forms of assistance in planning or committing are abet, aid,
assist, command, counsel, induce, procure, tempt or incite. Is not reporting someone’s legal
wrong considered assistance? It is not assistance in legal wrong
157
as long as a person does not
help the perpetrator hide, evade arrest, prosecution or conviction. So passive approach to the
155
…do not cooperate in sin and aggression…(Quran 5:2). This verse is both for Muslims and non-Muslims, even
though it is addressed to Muslims. It’s not logical that God accepts cooperation in sin and aggression from non-
Muslims. Often Quran addresses laws to believers because they are responsible for creating Islamic jurisdiction.
156
The person guiding (someone) to do a good deed, is like the one performing the good deed. (Hadith). This would
also mean person guiding to a bad deed is like one who is performing the bad deed.
157
whoever covers up the fault of a Muslim, Allah will cover up his fault on the Day of Resurrection (Hadith)
Page | 86
perpetrator is acceptable but active approach is not. The second is because a person if does
such things will be impeding Islamic justice and the victims’ rights.
Is planning steps to commit a legal wrong punishable? As part of blocking the means it could be
punishable
158
. Enforcing a punishment for planning a legal wrong would perhaps deter the
planner in future from repeating the plan.
There are two types of legal wrongs and legal punishments: a) textually specified b) textually
implied. For legal wrong both types, and for legal punishment the first type can be known by
the rules of Usool Fiqh. For the second type of legal punishment is decided by the concept of
Tazeer. It refers to punishments applied to the other offenses for which no punishment is
specified in the Qur'an or the Hadith. This kind of punishment cannot be the same as specified
in texts for textually specified legal wrongs. Tazeer must be fair and proportional. As an
example, Quran
159
forbids inheriting women or consuming their dowry against their will.
However, the text does not mention any punishment. This is an enforceable law as the
condition/s of enforceable law are fulfilled. Another example where Tazeer can be used is
planning a legal wrong. The Islamic judge can apply Tazeer punishment on anyone who violates
this law or assist in its violation. Tazeer punishments can be jailtime, fines, lashing, probation or
rehabilitation.
Category of Law
Islamic laws can be categorized by subject matter such as health law, moral law, security law,
culture law, contract law, military law etc. Every law of Quran and Sunnah can imply or contain
a category. Health law is law which affects the health such as eating pork, drinking alcohol,
medical wrongs etc. Moral law is character and sexuality law such as hijab, adultery, fornication
158
Those who were oppressed will say to those who were arrogant, "Rather, [it was your] conspiracy of night and
day when you were ordering us to disbelieve in Allah and attribute to Him equals.” (Quran 34:33). The point to
note is planning steps to make people disbelieve in Allah is wrong.
159
O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties
for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with
them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good. (Quran
4:19)
Page | 87
etc. Culture law decides which foreign culture is acceptable or rejected. Security law is for
security and order such as hiraba, Hodood etc. Military law such as armed jihad, prisoners of
war. Crime can also be categorized in terms of severity of punishment. The Islamic law may also
be bundled together depending on the higher purpose of Islam, that is which text or texts by
itself or jointly establish higher purposes and address these higher purposes of Islam. The
purpose of categorization is to see clearly how to apply law vis a vis legal entity or legal person.
Any categorization that organizes the law and make it visible is acceptable.
Legal Entity
A legal entity is any human or non-human thing on which law is applicable such as humans,
cattle, natural resources etc. Applicability of law means there is a law or legislation governing
such a thing. It is only a legal person who is subject to punishments and obligations. A legal
person in Islam is called a Mukallaf. A Mukallaf is someone who has a rightful responsibility to
discharge legal injunctions. The conditions of the legal person in Islam are being an adult, being
sane and having cognitive capacity and having ability which can be mental, physical and
financial. So, we have three criteria. Faith is not a condition of being a legal person but a
condition of performance of certain acts. For any Islamic legal act one or more of these three
conditions must be fulfilled depending on the nature of legal act.
Adulthood is established by first ejaculation for male and first menstruation by female. Sanity,
mental ability and cognitive capacity are determined by established principles of modern
science of psychology and physical and financial abilities can be determined by observation,
auditing and accounting. The difference between ability and capacity is this: ability is the actual
skills and knowledge required to do something whereas capacity can be defined as either a)
potential to learn or do something or b) the maximum capability and limit of productivity of
mind and body beyond which we break down mentally and/or physically. \
Page | 88
Legal Punishment
The purpose of Islamic legal punishment whether physical or material/financial is deterrence.
However, deterrence should best work if the punishment can be publicized
160
. When the
Islamic government punishes an individual defendant, he or she is probabilistically less likely to
commit another crime because of fear of another similar or worse punishment. When the
public learns, for example, that an individual defendant was severely punished by cutting of a
hand or crucifixion or the death penalty, this knowledge can inspire a deep fear of criminal
prosecution. Islamic punishment also acts as a retribution by giving victims or society a feeling
of avengement.
Culpability vs Responsibility
As previously discussed, that waiver of culpability does not necessarily mean waiver of
responsibility. This is true in cases of mistaken wrongdoing such as negligence
161
, mistaken
murder etc. Does Islam recognize the concept of liability transference such as for example
when a manager or boss is sued over mistakes made by his contractors, employees, or agents?
Or when the parents are responsible for their children? The concept of this liability can be also
supported by the concept of guardianship in Islam. So, Islam does recognize this as hinted in the
Hadith
162
. So, in order to claim damage from someone who is responsible for the perpetrator of
the mistaken act functional responsibility should be established between the two and this is the
basis for transferring liability.
What are the conditions for claiming remedy for a mistaken act which caused loss, injury or
damage? The conditions from Islamic legal maxims can be more or less summarized as a)
Responsibility must be established, that is, was the defendant responsible for the thing which
160
And let a group of the believers witness their punishment. (Quran 24:2)
161
An unintentional wrong act when a right act was supposed to be done.
162
Every one of you is a shepherd and is responsible for his flock. The leader of people is a guardian and is
responsible for his subjects. A man is the guardian of his family and he is responsible for them. A woman is the
guardian of her husband’s home and his children and she is responsible for them. The servant of a man is a guardian
of the property of his master and he is responsible for it. No doubt, every one of you is a shepherd and is responsible
for his flock. (Hadith)
Page | 89
caused loss, injury or damage b) Could the loss, injury or damage have been prevented by the
ability of the defendant c) Was the thing that caused loss, injury or damage was the most
proximate, likely and reasonable cause? These conditions are hinted at by the Islamic legal
maxims.
Standard of Proof
In cases where Islamic law laid down harsh physical punishments standard of proof in such is
that the defense cannot raise any doubt to the prosecution’s Hujja, facts or semantics of the
law or legislation. If a strong doubt is raised, so according to Hadith, the Islamic punishment is
dropped but not necessarily innocence is established. As discussed previously guilt may be
waivered but not responsibility. Doubt is raised when a) Inconsistency in facts is established by
the defense b) Science, technology, probability, statistics, reason or law are used to discredit
fact or rational of the prosecution or the witness c) Stronger witness or witnesses in terms of
memory, expertise and/or morality are used against the prosecution’s arguments, facts,
witnesses or for support of the defendant d) Overall Hujja and argument of the defense creates
in the mind of reasonable people, such as the judge, the doubtfulness of prosecution’s
argument, Hujja, fact.
Contract
Contract is a legal document or verbal agreement between two or more parties to exchange
something Halal
163
, started by offer and ended by acceptance. Offer and acceptance must be
communicated to each other. That is the point when contract becomes binding. Contract
allows exchange of known halal goods or services or ownership or companionship (as in
marriage) for known halal money or goods or services or ownership or companionship to
achieve a known or predictable halal purpose. Under Islamic jurisdiction terms of contract must
be validated if they are supported by Islamic law and Islamic legislation. As per Islamic law the
terms of contract must be fair and not exploitative to any party due to their position or
163
Imam Ali (AS) said, ‘The least of what you are obliged to do for Allah is to not use His bounties to commit acts
of disobedience to Him.’[Nahj al-Balagha, Saying 330]
Page | 90
circumstances. Towards this end proper Islamic legislation and institutional policies must be
designed. The contract should impart the information of quantity, time, place, form,
specification or instance of functioning, if any, of the things exchanged.
A contract is completed or discharged by a) Agreement among the parties b) Performance of all
obligations and duties c) Impossibility to complete or defeating the purpose of the contract d)
Breach of terms. If any party breaches any of the terms of the contract then the victim must get
either equitable remedy, agreed upon price, contractual performance in which his rights were
violated or any other compensation or fulfillment of right the Islamic court decides.
Any contract under Islamic jurisdiction which violates any element of an Islamic text or its
ruling, or Islamic legislation is void. Any responsibility and duty created out of such a contract is
void. Depending on the nature of violation the parties may be punished or asked to
compensate or complete a certain obligation either to each other or to any other interested
party or to the Islamic government. For example, two people agree to import alcohol and sell it
under Islamic jurisdiction covertly. They use a truck company registered in Islamic jurisdiction,
but the truck company does not know what it is they are importing. These parties’ contract is
void, they are arrested found guilty and punished with lashing. All obligations and duties
created under this contract are void. However, they must pay the truck company for any loss,
or damages that they might have caused due to long term contract with the truck company,
either by deception or forgery, both of which are also legal wrongs in a contract.
Legal Defense
A person is guilty
164
if he deserves an Islamic recompense, for an act, belief or behavior i.e.,
legal wrong, either in the form of physical or material/financial punishment and has no legal
defense. In Islamic law, guilty person of a legal wrong, established by an Islamic judge needs to
satisfy the following conditions: a) Intention to perform the legal wrong by act, belief, behavior
and/or consequence b) Knowledge of the legal wrong and c) Being Mukallaf i.e., legal person.
This arises from the theological aspect of exercising free will. Only those who are free to act and
164
Not to be confused with guilty in secular criminal law.
Page | 91
decide on their own can be truly accountable. So legal defense has two perspectives: defense to
prove innocence (not guilty) and defense to waiver culpability. It is the latter that will be
addressed. Waiver of culpability will remove guilt but may not remove responsibility. There are
several grounds for waiver of culpability in Islamic law.
If any of the conditions of Mukallaf cease, depending on the requirement of the legal act, then
a legal defense may be established. Islam has textually established certain grounds
165
for legal
defense such as forgetfulness and unintentional mistake (mental and cognitive aspect) and
duress (physical or financial). However as stated waiver of culpability will remove legal guilt but
may not remove responsibility. For example, a person may mistakenly without intention harm
someone but nonetheless such a person has responsibility to discharge remedy such as Diyyah.
Some other grounds of legal defense can be arrived at from the rationale of Islamic texts such
as ignorance, intoxication, self-defense, automatism and necessity. All these however fall under
the conditions of legal personhood.
Ignorance
When is Ignorance of the law or act an excuse? If a legal person can be ignorant of law or an act
what this means is such law or act can be realizable and explainable and in case of an act must
be moral. When a person is ignorant of a law or an act what this means is the person is not
aware of the elements of the law and it’s ruling, and the person is not aware of the nature of
the act and its consequences. Let’s consider some ontological possibilities: a) an act which is
held as wrong and illegal widely by the society, b) an act which is wrong and also illegal, and
deeply rooted in our moral conscience c) an act which is wrong and illegal and easy to know
that it is wrong and d) an act which is wrong and illegal but cognitively difficult to know "by
means". It is only in the last case that Islamic jurisdiction will accept ignorance of law or act as
an excuse from legal culpability but may not waver responsibility. For example a person has
stolen some wealth but such a person did not know that such act of stealing is stealing, due to
its sophisticated ontology or being deceived by someone such that its ownership or price were
165
Allah has forgiven my nation for mistakes and forgetfulness, and what they are forced to do. (Hadith)
Page | 92
vague or ambiguous or not established, and thus did not intend to steal but to possess, so
Islamic law would not cut such a person's hand if convicted but nonetheless equitable
compensation ought to be given, or for example a person promoting hatred against Islam and
Muslims but such a person either has cognitive deficiency or has no means to know about Islam
such as lack of Islamic information or enough Islamic information is available but in a language
which the person does not understand. Such an Islamophobe may not be physically punished
but must pay financial and/or sentimental compensation such as apology and willingness to
learn Islam etc.
Ignorance of law and act is different from ignorance of fact. For example, if a person was caught
with some prohibited drugs or porn magazines in an Islamic jurisdiction then such a person may
appeal to ignorance of fact, that he does not know how it ended up with him. In such case if no
proof or evidence is established towards his knowledge of such possession then such a person
is innocent and also not responsible
166
.
Intoxication
To elaborate this classical term in philosophically rational way intoxicant must result it's effects
consistently and most of the times so a substance cannot be said to be inherently intoxicant if
it's effects are similar to intoxicants but random, that is unpredictable (not under probabilistic
measurement), provided that such a substance has highly beneficial consequences as well. So a
substance is intoxicant if a) results in the effects of intoxicants consistently b) results
probabilistically and c) harm, mental, physical, financial or social is not greater than benefit.
This categorization is easily applied on psychological drugs used to treat various mental and
neurological illnesses which may cloud judgement. However, if an adult sane able person took
psychological drugs justifyingly and as a consequence lost self-control which led him to cause
harm to others then such a person would still be legally liable for mistake/negligence under
Islamic law so the legal remedy of Diyyah could be applied on the person, but such a person
could not have been lashed for willful intoxication. This is because the person should have
166
Evidence is for the person who claims; the oath is for the person who denies. (Islamic legal maxim, The Mejelle
1967 article # 76)
Page | 93
known about the possible consequences of the drug because it should be a responsibility for
the doctor or pharmacist to inform of such consequence. “Justifyingly” rules out willful
intention to cause harm such as taking such drugs to harm his wife or children or anyone or
anything he desires in his close proximity or reachable space.
Self-defense
Self-defense is also an Islamic act and right. Self-defense will waiver both guilt and
responsibility. However, self-defense must be proportional or else Diyyah, Qisas or Tazeer may
be invoked depending on the nature of self-defense and the extent of excessiveness.
Proportionality in any retaliation, use of force or self-defense is an established Islamic rule.
While assessing excessive self-defense it’s degree, extent of injury due to this, extent of loss or
damage due to this and intention to cause excessive injury if any must be established. For
example, someone broke into a person’s house who has the right to self-defense but to what
extent? If the robber turned back and started leaving the place and the houseowner shot the
robber thereby injuring or killing him, it would be counted as excessive force and depending on
the intention it could even be counted as murder invoking the law of i.e., Qisas. A person can
also invoke self-defense for defending other vulnerable people, property, animal or
environment from harm, abuse or exploitation
167
.
Necessity vs Duress
Necessity may not involve a third party whereas duress often involves a third party which is
coercive. Necessity is mostly limited to the need of the individual and brought about by nature,
an act of God, or circumstances outside a person’s control whereas duress often transgresses to
the rights of other people. For example, eating pork or drinking alcohol to quench thirst under
necessity is permissible and Islamic courts may or may not not implement punishments
depending on the nature of eating pork or drinking alcohol. For example, a person may buy
pork meat not only to eat under necessity but also to sell in Islamic society, so such a person is
167
Whosoever of you sees an evil, let him change it with his hand; and if he is not able to do so, then [let him change
it] with his tongue; and if he is not able to do so, then with his heart — and that is the weakest of faith. (Hadith)
Page | 94
liable to financial or physical punishment. Or for example, a person drinks alcohol under duress
but because intoxicated, and raped a woman or murdered a person then under such, lashing
punishment won’t be implemented but financial compensation sought or Tazeer implemented.
Or for example a hiker lost in freezing mountain comes upon a locked cabin then breaks it,
enters it and tends to his need. In such a case the hiker must pay compensation but may not be
liable to punishment of thievery unless his exploitation of the property exceeds beyond the
fulfillment of his need.
How is necessity established? Necessity is a valid ground for making something prohibited
permissible. Necessity for something is established if any or all of the following happens if that
something is not utilized or consumed to achieve normalcy: death or unbearable suffering or
debilitating situation preventing use of mind or limb consistently. Necessity is established on
the Quranic principle of ability and capacity
168
169
. Condition of necessity is established by just
witnesses and/or expert opinion
170
. Expert opinion must be based on objective probabilistic-
statistics, experimental or observational study. Based on necessity is mercy killing allowed. If
specialist doctors in pain management have decided the threshold of pain for this patient is low
and/or the pain and suffering on the patient is beyond normal, and that no treatment can
alleviate it and that the patient is in unbearable suffering then the life of the patient can be
terminated at the patient’s request.
What about a person who was threatened to do an illegal act? Depending on the gravity of the
threat and whether the threatened had used all available means to subdue the threat and on
the nature of wrong committed, Islamic law will either forgive, demand remedy or punish
physically. Such threats may be threat of murdering him, or raping his wife, or destroying his
property etc. if the threatened does not perform an illegal act. For example, if a security guard
is threatened if he does not murder his boss his wife will be raped and murdered what will be
the punishment if the guard goes on with this illegal act? The best legal punishment would be
168
So, fear Allah as much as you are able (Quran 64:16)
169
Allah does not charge a soul except [with that within] its capacity (Quran 2:286)
170
…So ask the people of the remembrance if you do not know. (Quran 16:43). This verse implies appealing to
relevant people of knowledge in case we need some information.
Page | 95
seeking blood money rather than death penalty. At least in the spiritual sense of justice i.e.,
afterlife, duress cannot be used to violate other people’s lawful rights.
Access To Justice
Not everyone is able to access justice. Many people lack the income necessary to pay for legal
interventions against injustice, preventing them from meeting basic needs, like protection
against financial fraud and abusive relationships. How can these people be helped to access
justice under Islamic jurisdiction? In the USA growing income equality between rich and the
poor has failed countless people not only in getting access to justice but also in their most basic
of life’s needs.
So, two essential questions will be discussed. First, who and what beliefs, acts or issues can be
referred to judicial process? Second, how can people achieve quality legal representative? For
the first, under Islamic jurisdiction everyone can have access to judicial process because, as
discussed in many places, justice is the heart of Islam. What can be referred to judicial process?
First of all, any person or group under Islamic jurisdiction can bring an issue to the court if such
an issue in first instance shows some legal wrong and some kind of Hujja relevant to it. Also, in
absence of such, any act which affects the individual and society, such that if not addressed will
impede individual or social welfare or cause injustice or lead to disorder and chaos or
destruction of mind, religion, wealth, honor and lineage. It should be the duty of the legal
representative to provide assistance for the full scope of their client’s legal problem and
prevent further legal troubles. Failing to do so may only intensify further legal problems of the
client. In the secular system courts struggle to deal with volumes of cases but in the Islamic
society this will not be an issue. This goes back to how Islamic society creates individual and
social psychology and how Islamic legal punishments act as deterrence. These affect individual
and social participation in legal wrongs and crimes and thus the volumes of cases will be lower,
not to the point of being burdensome.
Page | 96
For the second there are several solutions: as Islamic political system will establish most
effectively Islamic welfare taxation model and as Islamic legal system is similar to inquisitorial
system, where judge has control of the trial, then it follows that the Islamic treasury will
provide, and the judge, in case, any party is unable to have legal representative, will assist such
party in presenting its case, either by himself or appointing a legal representative, the amount
of which will depend on the gravity of the case and the gravity of punishment or loss for the
affected party. Islamic activist groups may also offer pro-bono work for the helpless and the
needy. Islamic legislative also should ensure they deliver a more just, equitable world for all
through its legislation; this protection can be provided through inspectors and regulators of the
legal market who license providers of law and legal services to sell their services. Islamic
government may create mini Fastrack schools for the poor and the needy to self-help on legal
issues such as how to approach Islamic court, what forms they need, how to present case and
an understanding on the science of Islamic evidence etc.
The access to justice also depends on the organization of Islamic courts. This should be done
based on subject matter, demography, statistics of legal wrongs, people’s life schedule and
income. Separate courts for judicial review for administrative and judicial wrongs, criminal law,
labor court, morality court, discrimination court and other civil matters may be created and
within each division further segmentation can be made depending on categories such as
urgency, time, expertise and finance. Such developmental and evolutionary policies are based
on the Islamic legal maxim of seeking easiness and removing hardship, achieving coherency and
sustainability of laws, rules and protocols, minimizing exploitation and injustice of the system,
and realizing objectives and purpose of Islamic text.
Easiness is achieved by efficiency and effectiveness so proper pipelining and algorithm should
be implemented from when a person or entity initiates a case to its resolution in the form of
any judgement, remedy or judicial policy, also taking into consideration appeal or special
circumstances. It is best that any policy for the court system is checked against the vast
compendium of Islamic texts from Quran and Sunnah or that any policy is extracted from such
compendium.
Page | 97
How long can a case, since it’s occurrence, be submitted to the court? This should be decided
based on the subject matter of the case, parties involved, history of the facts of the case and
any other subsidiary information that may have affected or affect the case such as emergence
of new technology, new facts, new insight etc. No political or corporate interests must affect
this anyway. Justice must be dispensed as soon as possible. The parties involved may raise the
issue of delay to the imam or the Guardian Council. Justice delayed is like justice denied and
this means will of God not realized.
Why may justice be delayed? This cannot be delayed except without acceptable reasons such as
failure to ascertain the dispute in the case, failure to establish facts or law of the case,
overwhelming of governmental resources, or any party to the case, financially or in any other
way, unable to pursue the case. If there are no serious doubts about the issue or the law of the
case, court may order the execution of an obligation. Even if there are doubts on the issue of
the case, court may order protective measures to prevent an imminent damage or make a
situation clearly illegal cease.
If resources are stretched the court may prioritize based on the importance of the issues of the
cases such that rights of God, rights of the weak and the helpless and security issues of the
Islamic jurisdiction. If any party is financially unable the court may, depending on the financial
biography and current status of the party, assist such a party either from Islamic treasury by
giving a temporary loan or from any Islamic banks.
In order to best utilize the resources, the parties involved in a dispute or wrong should first try
to reconcile among themselves
171
. Such reconciliation may be documented in detail and the
original document submitted to the relevant court for record keeping. However, there are
certain things where reconciliation cannot be made but must go through Islamic court such as
rights of God as in Hodod law, or crimes of Hiraba.
The legal representatives of the parties are to facilitate in representing, explaining and
prosecuting/defending their cases and their clients. Any legal expert who wishes to represent
171
…and reconciliation is best… (Quran 4:128)
Page | 98
his client in a defense must ensure the following: the client has not confessed to a wrong
against another or himself or herself, and if so, the client does not have any valid and justified
defenses towards his or her act of wrong. If the client confesses to a wrong against others such
as violence and injury or against himself or herself such as drinking alcohol or adultery and has
no valid or justified defense, then the Islamic legal expert must reject such client in the act of
defending him but may represent such client until legal punishment or compensation has been
delivered. This arises from Quran’s prohibition on representing or supporting evil people in
their defense
172
. One wisdom behind this is when the society rejects evil from being defended
evil is reduced. Towards this end proper legal system must establish a proper process such as
initiation, documentation and completion, among other things. The legal representative should
know that from the commitment of a legal wrong to conviction and from conviction to actual
implementation of the punishment, for each stage there are various rationale, rules and
processes. Any argument or statement the legal representative make in a trial must be relevant
to the issue, law, procedure and fact.
Evidence
What is Hujja?
Evidence is factual and physical. Factual evidence can be probabilistic or certain depending on
how it has been established or perceived. For example, people seeing the moon and saying it
exists is a sense experienced fact but historians reporting something existed is a reported or
historical fact. Proof is rational and analytic. Both are supportive to judgement. Let me call both
of them as Hujja. Hujja is any evidence or proof which allows inference to, or ascertaining of
new principle or fact from, either by certainty or probability. Judgment of guilty or
responsibility can only be given if the Hujja is strong depending on the requirement of that
particular legal issue at trial. Epistemologically certainty is a standard often very difficult to
achieve in social sciences and even at times in natural sciences.
172
…And do not be for the deceitful an advocate. (Quran 4:105)
Page | 99
Relevance and Admissibility
Evidence, like any other domain of Islam, can be approached from three explanatory
perspectives: morality, justice and reason. For example, the concepts of relevancy and
admissibility that we find in the Islamic texts fall under the three explanatory perspectives.
Relevancy is closely related with reason and logic while admissibility is closely related with
morality and justice. Relevancy is how closely the evidence is related with the case or the fact.
Admissibility is how the evidence was obtained. Was it obtained in a way which is prohibited? If
so, can the evidence be used considering that the method of obtaining the evidence shall be
investigated and punished accordingly? For example, evidence such as torturing a man to give
witness cannot be admissible not because it was obtained through torture but because the man
may have lied just to escape torture. However, if a man was tortured to reveal the location of a
certain document and such a document is really found then such an evidence can be admitted
in court provided the act of torture is investigated and punished. The evidence as long as it is
relevant can be admitted but its method of acquirement, if was prohibited by Islam or by
Islamic legislation or rules of conduct, shall always be investigated and dealt likewise. Such
evidence may determine the rights of people and achievement of justice so even though
achieved in a prohibited or wrong way still admissible. So, depending on how the evidence was
obtained it may or may not be admissible, and a fine rule of test of admissibility is whether the
prohibited way of acquiring the evidence has caused loss of credibility or strength of the
evidence. If police forces or pressures someone to commit a legal wrong to collect evidence
against the person or someone else then the police are also taking part, as provoker, in creating
legal wrongs and thus will be subjected to legal procedure along with the provoked
173
.
Burden of Proof
Who has to establish Hujja in a trial? It depends on who is trying to establish a legal, rational or
factual proposition or claim. The proper question is who has to start establishing the Hujja? It is
173
The person guiding (someone) to do a good deed, is like the one performing the good deed. (Hadith). This would
also mean person guiding to a bad deed is like one who is performing the bad deed.
Page | 100
always the one who seeks to contradict the presumption of continuity or demand a certain
claim of right, duty or responsibility from another party
174
175
176
. Obligating the accused to
establish Hujja will violate the Islamic principle of “presumption of innocence”. Denial is only
valid to propositions which have not been established by proof or evidence. For example, if a
person accuses another of stealing then the accused can just deny it. However, if the accuser
brings proof or evidence then the accused must also bring proof or evidence to the contrary
and mere denial will not be enough.
How is the “presumption of continuity” relating to something established? This may sometimes
vary from culture to culture. However, we can use expert opinion, probability and statistics,
scientific observation and experiment and historical data to establish the presumption of
continuity related to something. For example, if an individual is caught with the possession of
morphine the Islamic government may prosecute such person if a) possession of morphine is
prohibited under Islamic law and Islamic legislation b) such possession had no justification. The
prosecution should establish that the possession of morphine a) contradicts the presumption of
continuity in Islamic society or b) the accused was unaware of such possession. The defense
however should establish why possession of morphine was justified, rather than presumption
of continuity.
The defendant or the party who is defending an accusation must show weakness or establish a
certain level of doubt in the Hujja for it to be discarded. Establishing doubt in cases where the
punishment is harsh such as punishments for Hiraba or Sariqa is the requirement for the
defendant.
174
And that was Our [conclusive] argument which We gave Abraham against his people (Quran 6:83). Idol worship
was the continuous thing in that pagan society, so Abraham had to establish proof against it and also claim right of
prophetic obedience and duty to worship one God.
175
But the burden of proof is upon the claimant and the taking of an oath is upon the one who denies (the
allegation).(Hadith)
176
Evidence is for the person who claims; the oath is for the person who denies. (Islamic legal maxim, The Mejelle
1967 article # 76)
Page | 101
Hujja in Islam
Hujja in Islamic law are primarily witness, confession, oath and document
177
. Other types,
especially modern forms of evidence, can be used only in issues where Islamic text has not
prescribed using any of these or as supportive Hujja. Islamic texts where use of any of these has
been prescribed cannot be substituted by any other form of Hujja. For example, if in an
adultery no witnesses are found then forensics cannot be used to establish adultery.
Islam accepts circumstantial evidence
178
for support of primary Hujja, consideration, initiating
an investigation and weakening factor of primary Hujja. However circumstantial evidence
should be used to create a complete convincing ontology to achieve a persuasive Hujja.
Witness as Hujja
In Islamic law witnesses are either four, two or one in varying combinations of male and female.
One male witness equals two female witnesses but in feminine cases where females are more
privileged to the knowledge of, then only women witnesses are accepted. This varying numbers
depend on the domain of legal issue and the standard of proof required. Four witnesses
demand that a very high level of credibility is established while one meaning a lesser standard
of credibility.
A witness must be just, adult and have sanity with a required level of cognitive capacity for the
legal issue in question. Another condition is that, in most circumstances, he or she must be a
Muslim if the case is Muslim vs Muslim but under exceptional circumstances non-Muslims may
be also a witness for or against Muslim
179
, or else other than that if the issue is not limited to
177
…O you who have believed, when you contract a debt for a specified term, write it down…. (Quran 2:282).
Document thus can be defined as anything that captures information, digital or otherwise.
178
…And a witness from her family testified. "If his shirt is torn from the front, then she has told the truth, and he is
of the liars. But if his shirt is torn from the back, then she has lied, and he is of the truthful." (Quran 12:26-27). This
is an example of circumstantial evidence as there was no actual witness of the act of seduction.
179
…two just men from among you or two others from outside if you are traveling through the land and the disaster
of death should strike you… (Quran 5:106).
Page | 102
only Muslim but also transgresses to non-Muslims then only the conditions of justness, sanity
and adulthood remains. General justness is repealed by immoral acts. Immoral acts are two
types: faith based immoral acts and non-faith based. Faith based immoral acts are only for
Muslims such as someone who does not pray, or does not fast etc., whereas non-faith based
immoral acts are acts or belief which are harmful or potential to harm and/or most culture
consider as bad such as drinking alcohol, committing adultery, ill tempered, attitude problem,
lying, dishonesty etc. Also, all those witnesses even if they are just, sane and adult are rejected
where relationship or vested interest will deter truth. Such as an enemy cannot be a witness
against an enemy, or a son for a father or father for a son etc.
The purpose of witness is defeated in a sinful and evil society because sin and evil overwhelm
people and affect the credibility of witness. Islamic society will change the upbringing of people
and their cultural existence towards a divinely just, humane and ethical one. Islamic laws are
designed by God in response to human psychology, and by design its activity in society will
achieve these changes. Islam aims to change the people in general by changing their upbringing
and cultural existence. This change will be collaborative and productive for other changes that
Islam will make in political, economic and social levels. This will help realizing the purpose of
witness evidence.
Witnesses can be compelled to give evidence. A witness can be anonymous provided there is
some valid grounds for such anonymity such as security risk or public safety. In such a case the
Islamic judge must ensure that the conditions of witness are met. Witnesses must give evidence
objectively
180
and what this means as they recall for what they really saw or heard. What this
means is the legal representative cannot guide or persuade the witnesses to present facts in a
certain way.
180
…That is most suitable: that they may give the evidence in its true nature and shape… (Quran 5:108)
Page | 103
When witness is in the process of giving evidence or proof
181
then sanity and required cognitive
capacity must be established
182
pre-trial, perhaps by psychologist, for both the times when the
witness witnessed the fact or occurrence of something, and currently. Justness must only be
established for the current time and not for the time when witness witnessed the fact or
occurrence.
Conclusion
While classical Islamic scholarship has contributed tremendously to the interpretation of the
Islamic texts, this writing is aimed at explaining the functioning of Islamic law and Islamic legal
system through Islamic texts, sociology, history, politics and the philosophy of legal science. It
explains the nature of law and how Islamic law and secular law are different. It explains the
functioning of Islamic legislative, judiciary and the court system. It elaborates on the concepts
of Islamic justice, legal wrong, punishment and evidence.
References
Abel-Smith, B. and Robert Bocking Stevens (1967). Lawyers and the courts; a sociological
study of the English legal system, 1750-1965. London, Heinemann.
Abraham, H.J. (1998). The judicial process : an introductory analysis of the courts of the United
States, England, and France. New York: Oxford University Press.
Anthony Harold Birch (2001). Concepts and theories of modern democracy. London ; New
York: Routledge.
Barker, E. (2015). Political thought of plato and aristotle. Scholars Choice.
181
Expert opinion can be considered proof.
182
And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound
judgement, release their property to them… (Quran 4:6). This verse supports test of mental and cognitive ability and
capacity when it is needed.
Page | 104
Bentham, J. and John Stuart Mill (1973). The Utilitarians : an introduction to the principles of
morals and legislation. Garden City, N.Y.: Anchor Press/Doubleday.
Cherneva, R. (2020). Neocolonialism: How Western Corporations Are Exploiting Africa.
[online] Medium. Available at: https://medium.com/illumination/neocolonialism-how-western-
corporations-are-exploiting-africa-d0e197af1950.
Chin, T.T. (2020). SAVAGE EXCHANGE : han imperialism, chinese literary style, and the
economic imagination. Harvard University Asia Center.
Coppedge, M., Hernn Gutirrez and Georgetown University. Center For Latin American
Studies (1989). Presidential or parliamentary democracy : does it make a difference?
Washington, D.C.: Center For Latin American Studies, Georgetown University.
Crotty, W.J. (1968). Approaches to the study of party organization. Boston: Allyn And Bacon.
George Holland Sabine and Thomas Landon Thorson (1993). A history of political theory. Fort
Worth: Harcourt Brace College Publishers.
Griffiths, J., Mckeown, P., Mcpeake, R. and City Law School (London, England (2012).
Evidence. Oxford: Oxford University Press.
Martin, D. (1989). The Guide to the foundations of public administration. New York (N.Y.):
Marcel Dekker.
MwardA. - (1980). al-Akm al-sulniyya wa-al-wilyt al-dnyya. Bayrt: Dr Al-Kutub Al-
ʻilmiyya, [Ca.
Morgenthau, H.J. (1948). Politics among nations : the struggle for power and peace. New York:
A.A. Knopf.
Muammad Ibn Al-usayn Sharf Al-Ra and Mohammad Askari Jafery (2002). Nahjul
Balagha = Peak of eloquence : sermons, letters, and sayings of Imam Ali ibn Abu Talib.
Multinational companies cheat Africa out of billions of dollars | Oxfam International (2016).
Multinational companies cheat Africa out of billions of dollars | Oxfam International. [online]
Page | 105
Oxfam International. Available at: https://www.oxfam.org/en/press-releases/multinational-
companies-cheat-africa-out-billions-dollars.
Patterson, O. (1991). Freedom. Vol. 1 : freedom in the making of Western culture. London:
Tauris.
Rae, D.W. (1975). The political consequences of electoral laws. New Haven ; London: Yale
University Press.
Rahman, M.M. (2020). The Islamic Society: The Sociological Perspective. www.academia.edu.
[online] Available at:
https://www.academia.edu/45005183/The_Islamic_Society_The_Sociological_Perspective.
Rahman, M.M. (2021a). Essential Summaries of Islam. www.academia.edu. [online] Available
at: https://www.academia.edu/49603558/Essential_Summaries_of_Islam [Accessed 31 Oct.
2021].
Rahman, M.M. (2021b). Islamism VS Nationalism. www.academia.edu. [online] Available at:
https://www.academia.edu/50929794/Islamism_VS_Nationalism [Accessed 31 Oct. 2021].
Rahman, M.M. (2021c). Islamization: A Sociological Approach. www.academia.edu. [online]
Available at: https://www.academia.edu/49065358/Islamization_A_Sociological_Approach
[Accessed 31 Oct. 2021].
Rahman, M.M. (2021d). THE FALL OF WESTERN CIVILIZATION. www.academia.edu.
[online] Available at:
https://www.academia.edu/49344077/THE_FALL_OF_WESTERN_CIVILIZATION [Accessed
31 Oct. 2021].
Rahman, M.M. (2021e). The Twelve Imams of Islam: Successors of Prophet.
www.academia.edu. [online] Available at:
https://www.academia.edu/50871313/The_Twelve_Imams_of_Islam_Successors_of_Prophet
[Accessed 31 Oct. 2021].
Page | 106
Rahman, M.M. (2021f). Universal Declaration of Human Rights & Islamic Human Rights: A
Comparison. www.academia.edu. [online] Available at:
https://www.academia.edu/55000447/Universal_Declaration_of_Human_Rights_and_Islamic_H
uman_Rights_A_Comparison [Accessed 31 Oct. 2021].
Richardson, J.J. (1993). Pressure groups. Oxford ; New York: Oxford University Press.
Richardson, P.J. (2018). Archbold : criminal pleading, evidence and practice. London: Thomson
Reuters/Sweet & Maxwell.
Rowson, M., Marx, K. and Engels, F. (2018). The communist manifesto. London: Selfmadehero.
Ruhollah Khomeini (2015). Islamic government : governance of the jurist. Tehran: The Institute
For Compilation And Publication Of Imam Khomeini’s Work (International Affairs Department.
Valdimer Orlando Key (2014). Public opinion and american democracy. S.L.: Literary
Licensing.
Muammad Ibn Amad Ibn Juzayy (1979).
/ Qawnn al-akm al-sharʿyah wa-masʾil al-furūʿ al-fiqhyah.
, Bayrt: Dr Al-ʿilm Lil-Malyn.
