Al-Ahkam As-Sultaniyyah: The Laws Of Islamic Governance written by al-Mawardi – الاحكام السلطانية للماوردي

Al-Ahkam As-Sultaniyyah: The Laws Of Islamic Governance
  • Book Title:
 The Law Of Islamic Governance
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Al-Mawardi
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386
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The Law of Islamic Governance – Sample Book

Foreword  – The Law of Islamic Governance

Al-Ahkam as-Sultaniyyah of’ Ali ibn Muhammad al-Mawardi is an important handbook written in the fifth century A.H. covering all the various aspects of the deen of Islam which are the concern and responsibility of the Khalifah, his amirs, his wazirs (ministers) and deputies. The rights and duties of these persons are expounded in detail – both as a reminder to persons already active in such capaci­ties and as a guide to those who are new to such offices.

This work affords insights into aspects of the deen that have all but vanished in the twentieth century of the Christian Era – mat­ters, for example, concerning the collection and distribution of zakah, the payment of jizyah, the management of markets, the in­spection of weights and measures and the overseeing of the mint­ing of gold and silver, the organisation of the army, its provisioning.

Al-Ahkam As-Sultaniyyah: The Laws Of Islamic Governance

the distribution of booty, the management of the frontier Ribats, the management of natural resources, penal law and the appointment of judges empowered to deal not only with marriages and inheritance but with all aspects of Islamic law, including the regu­lation of fiscal, financial and mercantile matters mentioned above.

Each chapter and section of the work is amply illustrated by quotations from the Qur’an, the hadith and the sunnah of the Pro­phet, may the peace and blessings of Allah be upon him, and fur­ther testimony and support is given by examples of legal and politi­cal precedent from the lives of leading figures in the history of Islam.

This work will provide a refreshing antidote to the teaching of modernists who, perceiving the deen of Islam to be threatened, insist on a radical rewriting of its parameters – rather than a return to the sources – as the only way forward.

Work written in 15th Century A.H

It should be noted, however, that the work (written in the first half of the fifth century A.H.) depicts a stage in the development of Islam which, even at th.is early date, is manifesting a strong tendency towards empire with all its connotations of central govern­ment and extended, at times complicated, bureaucracy:

to take but two examples, the divine order to, “command the good and for­bid the evil” (Qur’an 3: 104), which at the time of the Prophet, may the peace and blessings of Allah be upon him, was understood as a responsibility of each and every man, has now become institu­tionalised into the concept of hisbah and the obligation upon all to maintain law and order has now become the domain of the “forces of law and order,” i.e. the state police.

Words such as Dar al-Islam, Dar al-Harb, bait al-mal, mushrik, kafir and the like which have no satisfactory equivalents in Eng­lish, and which are quickly gaining currency amongst English­speaking Muslims globally, are used throughout the translation.

For in depth definitions of their meanings, recourse should be had to the writings of Shaykh ‘Atxtal Qadir al-Murabit and to the works of translation undertaken under his guidance, especially, for exam­ple, his Root Islamic Education and the translations of Aisha at­Tarjumana (Imam Malik’s Muwatta and Qadi ‘Iyad’s ash-Shifa). A simple glossary of terms is, however, appended to this work.

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The Appointment of Wazirs  – The Law of Islamic Governance

Wazirate (ministry) is of two types: ministry of delegation and ministry of execution.

The ministry of delegation is where the Imam appoints a minister to whom he delegates authority for the organisation of affairs in accordance with his judgement such that he effects them properly by his own efforts. The permis­sibility of this ministry cannot be denied: Allah, may He be exalted says, speaking of his Prophet Musa, on whom be peace and blessings: “And ap­point for me a wazir from my people, Harun, my brother, and consoli­date my strength by him and make him a partner in my affair”(Qur’an 20: 29-32). If this is permissible with respect to prophethood then it is all the more permissible regarding lmamate;

moreover, the Imam cannot deal di­rectly with all the organisation of the Ummah which has been entrusted to him except by appointing representatives. Representation by a minister cooperating with the Imam in the organisation of affairs, is also a more effi­cient way of executing such affairs than doing it alone: this minister will protect him from (the weaknesses of) his self and the Imam will thus be less likely to make mistakes and will be prevented from committing errors.

The same conditions of lmamate apply when entrusting someone with this ministry, except that of lineage: the wazir, having to sanction judgements and execute decisions arrived at by ijtihad. must necessarily be of the mujtahidun. One further condition. besides those of Imamate, is required: that he be capable in the two matters with which he has been entrusted, namely of war and kharaj, and that he have a profound experience of these two things given that he must deal directly with them in person at times and appoint representatives at others: he will not find capable representatives unless he himself is one of them just as he will not be able to deal directly with them if he is inferior to them. This condition is the pivot of wazirate and on it its good administration depends.

Qualities of minister

It has been related that al-Ma’mun, may Allah be pleased with him, wrote regarding the choice of wazir saying: “I am looking for a man for my affairs who has all of the qualities of goodness, who is modest in his behavior and resolute in his ways, a man who has been refined by manners and strength­ened by experience, a man who if entrusted with secrets acts accordingly and if entrusted with important matters moves to execute them,

a man whose forbearance causes him to be silent and whom knowledge causes to speak, a man for whom the moment is enough and for whom a glance is sufficient, a man who has the intrepidity of amirs and the perseverance of the wise, the humility of the ‘ulama and the understanding of the fuqaha;

if people treat him well, he is grateful and if put to the test by their mistreatment. he is patient; he does not sell the portion of today only to be deprived the next; a man who captures the hearts of men by the sharpness of his tongue and the beauty of his eloquence.”

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A poet has combined these qualities and concentrated them when describing one of the ministers of the Abbasid state:

His insight and thought are both sound when people are confused by affairs; he is the most judicious of his age when counsellor and coun­selled have wearied: his is a breast which finds expansion in cares when others have become constricted with cares.

If these qualities are perfected in someone in charge of organisation -and few are those who achieve this perfection – then the benefit resulting from his authority is general and everything connected with his judgement and organisation is complete; if, however, they are deficient, then this benefit is restricted accordingly and is limited in proportion to these qualities.

Although such a condition is not absolutely required by the deen, it is a condition of good administration which is inseparable from those of the deen because on it depend the interests of the Ummah and the upholding of reli­gion.

Reviving Dead Lands and Drawing Water – The Law of Islamic Governance

Whoever revives a dead land becomes its owner with or without the permis­sion of the Imam, although Abu Hanifah says that it is not permitted to revive it without the permission of the Imam, based on the saying of the Prophet, may the peace and blessings of Allah be upon him,

“No one may have any­thing unless his Imam is happy about it,” – but in another of his sayings, “Whoever revives a dead land, then it is his,” there is a proof that ownership of dead lands is validated by means of its revival without the permission of the Imam.

Dead land (mawat), according to ash-Shafi’i is any land which is not cul­tivated nor constitutes a hareem reserve of cultivated land- even if it is adja­cent to a cultivated land. Abu Hanifah says that mawat land is that which, is distant from cultivated land and which water does not reach.

Abu Yusuf says it may be defined as that land which, when someone stands on its point which is nearest to a cultivated land and cries out at the top of his voice, he cannot be heard by anyone standing at the nearest point in the cultivated land. These two opinions, however, depart from what is traditionally accepted regarding the connection between cultivated lands.

There are equal rights in reviving land – The Law of Islamic Governance

Those living near the dead land and those living at a distance both enjoy the same rights concerning the reviving of land, although Malik says that those living on neighboring land are more entitled to revive it than those living far away.

The nature of the revival is determined by custom, with regard to the purpose of the revival, as the Messenger of Allah, may the peace and bless­ings of Allah be upon him, referred to it in terms of usual customary practice in the matter: thus if someone wishes to revive a dead land by way of resi­dence, then revival is obtained by constructing and roofing a building on it, as this represents the minimum necessary for residence. If someone wants to Reviving Dead Iands and Drawing Water revive it for cultivation or planting trees, three conditions must be observed: first, the earth at the edges of the area should be heaped up to form a barrier between it and other areas; second, it should be irrigated with water if it is dry,

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or water should be stopped from reaching it if it is marshy – because reviving dry land consists in irrigating it, and reviving marshy land is by stopping water from reaching it – so as to make cultivation and planting pos­sible in both cases;

third, tilling the earth should be by ploughing up flat ground, flattening out any mounds, and filling in any holes. If these three conditions are fulfilled, the revival is complete and ownership is transferred to the person who revives it. One of the followers of ash-Shafi’i is mistaken when he says that ownership is not established until the person cultivates or plants trees; this is incorrect, as both of these actions correspond to taking up residence in a residential property but not to the acquisition of a place of residence (prior to taking up residence).

Ownership of the revived land – The Law of Islamic Governance

The cultivator of a land which has been revived is the one who works and cultivates it: the person responsible for reviving it remains the owner: and the cultivator is the owner of what is produced. If the owner of the land wishes to sell it, he may do so, but there is a difference of opinion as to whether the owner of the cultivation may sell his right. Abu Hanifah says that he may sell it if he has worked the land, but not if he has not worked it.

Malik says that the sale of the right of cultivation is permitted whatever the circumstances, and the cultivator is treated as a partner in ownership by virtue of his work. Ash-Shafi ‘i says that it is not permitted for him to sell the right to cultivation under any circumstances, except if he owns specific things there, like trees or crops, in which case it is permitted for him to sell these specific objects, but not the right to cultivation.

If someone has marked out a defining boundary around the dead land, he has more right to its revive it than any other; if, however, he is superseded by someone else who revives it, then the latter is more entitled to it than the one who defined it.

If the person who encloses it wishes to sell it before having revived it, this is not permitted, according to the clear meaning of ash-Shafi’ i’s teaching, although many of his followers have permitted it, arguing that as the person who encloses it is the most entitled to it, he may sell it, as with any other property.

If, in this instance, he sells it, and the person who has actually revived it takes it over after it has passed into the hands of the buyei: then Ibn Abi Hurairah, from among the followers of ash-Shafi’i, claims that the buyer is still liable to pay for it since the article has, as it were, been lost while in his hands after his having taken possession of it. Others of his followers who

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