Общие Законы (1-15)
- Категория: Общие Законы (1-15)
Статья 7: Государство распространяет действие законов шариата на всех граждан, которые имеют гражданство исламского государства, мусульман и не мусульман, следующим образом:
- а) Действие всех законов Ислама распространяется без каких-либо исключений на всех мусульман.
- б) Немусульманам разрешается следовать своим убе ждениям и соответственно совершать свои религиозные обряды в соответствии с общим порядком.
- в) Отступившие от Ислама несут наказание в соответствии с законом об отступничестве, если они сами являются вероотступниками. Если же они являются детьми отступников, являясь немусульма нами, то с ними имеют место взаимоотношения как с немусульманами, в соответствии с их реальным положением, то есть как с язычниками или как с людьми, имеющими писание (евреи, христиане).
- г) В отношении пищи и одежды к нему сульманам относятся в соответствии с их религиями в рамках того, что дозволяют законы шариата.
- д) Брачные отношения и развод, регулируются в среде немусульман по их религиям и эти же отно шения между мусульманами и немусульманами регу лируются в соответствии с законами Ислама.
- е) Все же остальные шариатские законы и положения исламского шариата, такие как взаимоотношения, наказания, свидетельские показания в суде, системы правления, эко номики и другие претворяются в жизнь государством, имея одинаковое распространение, как на мусульман, так и на немусульман. Эти законы и положения исполняются также государством над муахидами (граждане неисламско-го государства, находящиеся на территории Ислама, между странами которых и Исламским государством, имеются определенные договора), мустамининами (люди, которым дано разрешение на временное пребывание на территории исламского государства не более чем на один год) и всех, кто находится под властью Ислама, а также исполняются над всеми отдельными гражданами государства за исключением послов, консулов, членов дипломатических миссий и им подобным, которые имеют дипломатический иммунитет.
Article 7: The State implements the Islamic Shari’ah upon all those who hold the Islamic citizenship, with no difference between Muslims and non-Muslims as follows:
- All the rules of Islam will be implemented upon the Muslims without any exception.
- The non-Muslims will be allowed to follow their beliefs and worships within the scope of the general system.
- The rule of apostasy will be implemented upon the apostates from Islam if they themselves were the apostates. As for their children, they will be treated as non-Muslims if they are born as such. Thus,, they will be treated in accordance with their current status as being either polytheists or people of the book.
- The non-Muslims will be treated in matters related to foodstuffs and clothing according to their faith and within the scope of what the Shari’ah rules permit.
- Matters of marriage and divorce will be settled among the non-Muslims according to their faith, and will be settled between them and the Muslims according to the rules of Islam.
- The State will implement the rest of the Shari’ah rules and all the Islamic Shari’ah matters, such as transactions, penal codes, testimonies, ruling systems and economics among others equally upon the Muslims and non-Muslims. The State will also implement the same upon those with a covenant, the asylum seekers and all those under the authority of Islam in the same way. It implements them upon all members of society except for the ambassadors, consuls, and similar for they have diplomatic immunity.
Truly Islam has come for all people. Allah (swt) says
((وَمَا أَرْسَلْنَاكَ إِلَّا كَافَّةً لِلنَّاس))ِ
“And We have not sent you except comprehensively to mankind.” (TMQ 34:28). Just like the disbeliever is obligated to abide by the “Usul” (foundations), in other words, by the Islamic 'Aqeedah, he is also obligated to abide by the branches i.e. the Shari’ah rules. As for the fact that he is obligated to abide by the rules, this is clearly mentioned in the verses of the Holy Quran, and as for the fact that he is obligated to abide by the branches, this is because Allah (swt) has clearly obligated him with some of the branches, among which are those verses commanding the disbeliever to worship Allah (swt). He (swt) says,
(( يَا أَيُّهَا النَّاسُ اعْبُدُوا رَبَّكُمُ))
“ O mankind, worship your Lord.” (TMQ 2:21), Allah (swt) also says,
(( وَلِلَّهِ عَلَى النَّاسِ حِجُّ الْبَيْتِ))
“ And [due] to Allah from the people is a pilgrimage to the House.” (TMQ 3:97),and similar. Moreover, were the disbelievers not obligated to abide by the branches, Allah (swt) would not warn them against their violation, and the verses warning them against the forsaking of these branches are numerous, some of which are: Allah (swt) says,
((وَوَيْلٌ لِلْمُشْرِكِينَ (6) الَّذِينَ لَا يُؤْتُونَ الزَّكَاةَ))
“ And woe to those who associate others with Allah; Those who do not give Zakah.” (TMQ 41:6-7). Allah (swt) also says,
((وَالَّذِينَ لَا يَدْعُونَ مَعَ اللَّهِ إِلَهًا آَخَرَ وَلَا يَقْتُلُونَ النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ وَلَا يَزْنُونَ وَمَنْ يَفْعَلْ ذَلِكَ يَلْقَ أَثَامًا (68)))
" And those who do not invoke with Allah another deity or kill the soul which Allah has forbidden [to be killed], except by right, and do not commit unlawful sexual intercourse. And whoever should do that will face punishment."(TMQ 25:68). Allah (swt) also says,
(( مَا سَلَكَكُمْ فِي سَقَرَ (42) قَالُوا لَمْ نَكُ مِنَ الْمُصَلِّينَ))
“ "What put you into Saqar (Hell Fire)?"They will say, "We were not of those who prayed.” (TMQ 74:42-3).
The fact that the disbelievers have been obligated to abide by some of the commands and prohibitions indicates that they have been obligated to abide by all the commands and prohibitions. Furthermore, the verses which stipulate the obligation to abide by the branches are mentioned in a general term and the general term remains upon its generality unless the evidence of specification is mentioned; in this context, no evidence has been mentioned which restricts these verses to the Muslims, and so they remain general. For instance, Allah (swt) says,
((وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا))
“ Allah has permitted trade and has forbidden interest (usury).” (TMQ 2:275), and He (swt) says
((فَإِنْ أَرْضَعْنَ لَكُمْ فَآَتُوهُنَّ أُجُورَهُنَّ))
“ And if they breastfeed for you, then give them their payment.” (TMQ 65:6),Allah (swt) also says,
(( فَرِهَانٌ مَقْبُوضَةٌ))
" And if you are on a journey and cannot find a scribe, then a security deposit [should be] taken." (TMQ 2:283),and the words of the Messenger of Allah
«مَنْ أَحْيَا أَرْضًا مَيِّتَةً فَهِيَ لَهُ»
“He who revives a barren land, it becomes his” reported by Ahmad and Al-Tirmidhi with a Sahih chain through Jabir. The Messenger of Allah also said
«عَلَى الْيَدِ مَا أَخَذَتْ حَتَّى تُؤَدِّيَهُ»
“The hand is liable for what it has taken until it is given back” transmitted by Ahmad with a Sahih chain through Samurah Bin JundubThere are many other rules to this effect. This serves as clear evidence that they are obligated to abide by the branches.
Furthermore, the commandment to abide by the foundation is in itself a commandment to abide by the branch, and the commandment to abide by the whole is a commandment to abide by the part; so, the obligation to pray entails the obligation of the prostration, the recitation, the standing and so on. The disbeliever is commissioned to abide by the foundation; thus, he is obligated to abide by the branch. As for the non-acceptance of some branches from the disbelievers, such as prayer and fasting, this is because the embracing of Islam is one of the conditions of acceptance; thus, they would not be accepted until the condition is fulfilled. However, this does not mean that it is not obligatory upon them. As for the fact that they are not commanded to perform certain branches that embracing Islam is not a condition for such as Jihad this is because Jihad is fighting the disbeliever for their disbelief, and the Dhimmi is a disbeliever. Thus, it is inconceivable for him to fight the disbelievers due to their disbelief; otherwise, it would be permitted for him to fight himself. Therefore, he is not obligated to perform Jihad. However, if he accepts to fight a disbeliever, it will be accepted of him. However, he will not be forced to perform Jihad and this does not mean that he is not commanded by Allah (swt) to perform it.
This is from the fact that they are obligated to abide by the rules of Islam. As for the fact that the ruler should implement all the rules of Islam upon them, this is reflected in Allah's (swt) saying with respect to the People of the Book
(( فَاحْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ))
“ Judge between them by what Allah has revealed and do not follow their inclinations.” (TMQ 5:48). Allah (swt) also says with respect to them
((وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ))
“ Judge, [O Muhammad], between them by what Allah has revealed and do not follow their inclinations.” (TMQ 5:49). Allah (swt) also says
(( إِنَّا أَنْزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللَّهُ)) 4
“ Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge between the people by that which Allah has shown you.” (TMQ 4:105).
This is a general address that includes Muslims and non-Muslims alike, because the word “people” in
((لِتَحْكُمَ بَيْنَ النَّاسِ))
“ so that you judge between people” is general.As for His (swt) saying
(( سَمَّاعُونَ لِلْكَذِبِ أَكَّالُونَ لِلسُّحْتِ فَإِنْ جَاءُوكَ فَاحْكُمْ بَيْنَهُمْ أَوْ أَعْرِضْ عَنْهُمْ وَإِنْ تُعْرِضْ عَنْهُمْ فَلَنْ يَضُرُّوكَ شَيْئاً وَإِنْ حَكَمْتَ فَاحْكُمْ بَيْنَهُمْ بِالْقِسْطِ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ))
“ [They are] avid listeners to falsehood, devourers of [what is] unlawful. So if they come to you, [O Muhammad], judge between them or turn away from them.” (TMQ 5:42),this means that if one were to come to the Islamic State from abroad seeking the arbitration of the Muslims in a dispute with another disbeliever or other disbelievers, the Muslims in this case are given the choice of either judging between the disputing parties or declining to do so. This is since the verse was revealed concerning those whom the Messenger of Allah had made peace with and signed treaties with from among the Jews of Madinah who were living as tribes and they were considered as other states. They were not under the authority of Islam; rather, they were other states. Thus, he had signed treaties with them. However, if they were under the authority of Islam, such as the Dhimmi, or if they came as asylum seekers, it would be forbidden to judge between them by other than Islam. The one who refused to refer to the rule of Islam, would be forced to by the ruler and the ruler would punish him for it.
It is forbidden to conclude an indefinite Dhimmah oath with the disbeliever unless two conditions are fulfilled. Firstly, that Dhimmis adhere to paying the Jizya each year, and secondly that they abide by the rules of Islam i.e. the acceptance of what is enforced upon them in terms of executing orders and abstaining from prohibitions. This is due to the words of Allah (swt):
((حَتَّى يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ))
“ Until they give the Jizyah willingly while they are humbled.” (TMQ 9:29), meaning until they submit to the rules of Islam. In addition, the Messenger of Allah used to implement the rules of Islam upon them. Al-Bukhari transmitted through Ibn Umar:
«أَنَّ الْيَهُودَ جَاءُوا إِلَى النَّبِيِّ بِرَجُلٍ مِنْهُمْ وَامْرَأَةٍ زَنَيَا فَأَمَرَ بِهِمَا فَرُجِمَا»
“The Jews came to the Prophet with a man and woman from amongst them who had committed adultery and so he had them stoned”, and Al-Bukhari reported through Anas:
«أَنَّ النَّبِيَّ قَتَلَ يَهُودِيًّا بِجَارِيَةٍ قَتَلَهَا عَلَى أَوْضَاحٍ لَهَا»
“The Prophet killed a Jew who killed a woman for her ornaments” . Those Jews were subjects of the Islamic State. Also, the Messenger of Allah wrote to the people of Najran who were Christians saying:
«أَنَّ مَنْ بَايَعَ مِنْكُمْ بِالرِّبَا فَلاَ ذِمَّةَ لَهُ»
“He who deals in usury from amongst you, shall be denied the Dhimmah covenant” reported by Ibn Abu Shaybah through Al-Shu’bah (Mursal narration).All this serves as evidence about the obligation to implement all the rules of Islam upon all of the subjects without any difference between Muslims and non-Muslims. It is on this basis that clause 'A' of this article has been drafted.
As for clause 'B', the general order regarding the implementation of all the rules of Islam is mentioned in Allah’s (swt) saying
(( فاحكم بينهم بما أنزل الله))
“ So judge between them by what Allah has revealed.” (TMQ 5:48). This general rule has been specified by Shari’ah; excluding the 'Aqeedah they embrace, the rules which are to them a matter of faith and the rules pertaining the actions which the Messenger of Allah has allowed them to perform. The 'Aqeedah and all of these rules have been made an exception by Islam through a host of clear texts. Allah (swt) says:
((لَا إِكْرَاهَ فِي الدِّينِ))
“ There shall be no compulsion in [acceptance of] the religion.” (TMQ 2:256), and the Messenger of Allah said:
«إِنَّهُ مَنْ كَانَ عَلَى يَهُودِيَّتِهِ أَوْ نَصْرَانِيَّتِهِ فَإِنَّهُ لاَ يُفْتَنُ عَنْهَا، وَعَلَيْهِ الجِزْيَةُ»
“Whoever is a Jew or a Christian should not be coerced away from his faith, and he must pay Jizya” transmitted by Abu Ubaid in Al-Amwal through ‘Urwah.Hence, any action which is considered as a matter of faith to them should not be interfered with by us and we should allow them to practise what they believe, even if this were not part of 'Aqeedah matters in our Deen. Additionally, we should also not interfere with them in regard to any actions that the Messenger of Allahallowed them to perform, such as drinking alcohol and getting married, within the scope of the general system. In other words, it is permitted for them to drink alcohol in their private lives but not in the general affairs where they mix with the Muslims such as the general markets and the like.
As for Clause 'C' of this article, Islam has decreed a host of rules regarding the apostate, amongst them that the apostate should be killed he or she does not repent since the Messenger of Allah said:
«مَنْ بَدَّلَ دِينَهُ فَاقْـتُلُوهُ»
“ He who changes his religion (i.e. apostates) kill him.” (transmitted by Al-Bukahri through Ibn Abbas).Anas reported:
"فقدمت على عمر رضي الله عنه فقال: يا أنس، ما فعل الستة الرهط من بكر بن وائل الذين ارتدوا عن الإسلام فلحقوا بالمشركين؟ قال: يا أمير المؤمنين، قتلوا بالمعركة، فاسترجع عمر، قلت: وهل كان سبيلهم إلا القتل؟ قال: نعم، قال: كنت أعرض عليهم الإسلام، فإن أبوا أودعتهم السجن"
“I came to Omar who said: O Anas, what happened to the six from Bakr Ibnu Wa’il? So I said: O Amir of believers, they were killed in the battle. Upon this Omar recited Allah’s (swt) saying: “To Allah we belong and to Him we will return”. So I said: “Could they have been dealt with by other than death? He said: “Yes, I would have invited them to Islam and had they refused, I would have thrown them in jail” as reported by Al-Bayhaqi. In other words, until they repent and if they did not, they would be killed. This is because the apostate would be invited to Islam and all the means of repentance would be exhausted, and if he still refused he would then be killed. An apostate should not be killed just for apostatising due to what is narrated from Jaber:
«أَنَّ امْرَأَةً هِيَ أُمُّ مَرْوَانَ ارْتَدَّتْ، فَأَمَرَ النَّبِيُّ بِأَنْ يُعْرَضَ عَلَيْهَا الإِسْلاَمُ، فَإِنْ تَابَتْ، وَإِلاَّ قُتِلَتْ»
“A woman, Umm Marwan, apostatized, so the Prophet commanded that she should be presented Islam, and if she repented (it is accepted). Otherwise, she is to be killed” reported by Al-Bayhaqi and Al-Daraqutni. This narration is used by masses of Fuqaha’; - Ibn Qudamah uses it as evidence in Al-Mugni, Al-Mawardi in Al-Hawi Al-Kabir and Al-Ahkam Al-Sultaniyyah, Abu Ishaq Al-Shirazi uses it in Al-Muhadhdhab, Al-Rafi’i in Al-Sharh Al-Kabir, Al-Baghawi in Al-Tadhhib and Ibn Al-Jawzi in Al-Tahqiq; so it is considered from the Hasan (acceptable authority) narrations and is acted upon – in other words, he is asked to report before execution.
Rulings of Clause 'C' are all about the apostate himself; they are not about his children. However, if a Muslim apostatised from Islam and remained upon the faith to which he apostatised, for example he continued to be a Christian, a Jew or a polytheist, and he were then to have children who had the same faith, would his children be considered as apostates? And would they be treated as apostates? Or would they be considered as being of the faith they had at birth?
The answer is that the children of the apostate who are born before their father’s apostasy are considered as Muslims without any doubt. However, if they were to follow their father and apostatise as well, they would be treated as apostates. If they were born after he had apostatised from a disbelieving or an apostate wife, these children would be considered as disbelievers and not as apostates; thus, they would be treated just like the people of the faith they inherited at birth. Hence, every child born after his father’s apostasy from a disbelieving wife or an apostate wife, would be judged as a disbeliever since he or she would have been born from two disbelieving parents. Therefore, if the two parents became Jews or Christians i.e. from the People of the Book, he or she would be treated as the People of the Book would be treated, and if the two parents became polytheists, he or she would be treated as a polytheist. This is so because Ibn Mas’ud reported:
«أَنَّ وَسَلَّمَ لَمَّا أَرَادَ قَتْلَ أَبِيكَ (عقبة بن أبي معيط) قَالَ مَنْ لِلصِّبْيَةِ قَالَ النَّارُ»
“When the Messenger of Allah wanted to execute your father (Uqbah Ibn Abi Mu’it), the latter said: “What about the children?” Hesaid: “Hell fire” (reported by Abu Dawud, Al-Hakim authenticated it, and Al-Dhahabi agreed with him).In the narration of Al-Daruqutni:
«النَّارُ لَهُمْ وَلأَبِيهِمْ»
“Hell fire for them and for their father” .It is also the case since in Sahih of Al-Bukhari in the section of the people of the abode, in the book of Jihad,
«مَرَّ بِيَ النَّبِيُّ بِالأَبْوَاءِ - أَوْ بِوَدَّانَ - وَسُئِلَ عَنْ أَهْلِ الدَّارِ، يُبَيَّتُونَ مِنْ الْمُشْرِكِينَ فَيُصَابُ مِنْ نِسَائِهِمْ وَذَرَارِيِّهِمْ، قَالَ هُمْ مِنْهُمْ»
“ The Prophetpassed by me at a place called Al-Abwa or Waddan, and was asked whether it was permissible to attack the pagan warriors at night with the probability of exposing their women and children to danger. The Prophet replied, "They (i.e. women and children) are from them (i.e. polytheists)”.Therefore, every child born to two disbelieving parents is considered a disbeliever and the rule pertaining to the disbelievers applies to him.
Hence, those who apostatised from Islam and became non-Islamic sects, such as the Druze, the Bahai’, the Qadiani and the like, are not treated as apostates since they didn’t apostatise but their ancestors were the apostates and they were ,therefore, born with two disbelieving parents. Thus, they are judged as disbelievers and they will be treated as such. Moreover, since they have not apostatised to a faith from among the People of the Book i.e. they have not apostatised to Christianity or to Judaism, they will be ,therefore, treated as polytheists. Hence, their slaughtered meat will not be eaten and their women will not be wedded since the non-Muslims are either considered to be People of the Book or polytheists and there is no third category. This is why the Messenger of Allahsaid about the Magi of Hajar as narrated by Al-Hasan Bin Muhammad Bin Al-Hanafiyya:
«فَمَنْ أَسْلَمَ قُبِلَ مِنْهُ، وَمَنْ لَمْ يُسْلِمْ ضُرِبَتْ عَلَيْهِ الجِزْيَةُ، غَيْرَ نَاكِحِي نِسَائِهِمْ وِلاَ آكِلِي ذَبَائِحِهِمْ»
“Whoever embraces Islam then accept them, and whoever does not then impose Jizya upon them, but do not wed their women or eat their slaughtered food” (Al-Hafiz said in Al-Dirayah: “narrated by ‘Abd Al-Razzaq and Ibn Abi Shaybah, it is a Mursal narration with a good chain”). As for those who apostatised from Islam and became Christians - as in the case in Lebanon with the family of Shihab; this family’s forefathers were Muslims and they apostatised to Christianity and their children were born as Christians - these people and their like will be treated as People of the Book.
Clauses 'D' and 'E'
As for Clauses 'D' and 'E', their evidence is derived from the fact that the Messenger of Allah allowed the Jews and the Christians to drink alcohol and accepted their marriage and divorce proceedings; thus, his acceptance serves as a specification of the general rule. However, the approval of the Messenger of Allah with regard to the disbelievers’ marriage is given only when the two spouses are disbelievers, but if the husband were Muslim and if the wife were either Christian or Jew, the rules of the Shari’ah would then be applied upon both of them. It is not feasible for the wife to be Muslim and the husband to be disbeliever for this is unlawful. Allah (swt) says:
((فَلَا تَرْجِعُوهُنَّ إِلَى الْكُفَّارِ لَا هُنَّ حِلٌّ لَهُمْ وَلَا هُمْ يَحِلُّونَ لَهُنَّ ))
“ Then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them.” (TMQ 60:10).Therefore, it is forbidden for a Muslim woman to marry a non-Muslim, and if she did her marriage would be unlawful.
As for Clause 'F', the evidence with respect to the implementation of all the rules of Islam is derived from all what has just been mentioned that the disbeliever is obligated to abide by the foundations and the branches, thus, he is commanded to submit to all the rules of Islam. This is general, and it includes the Dhimmi and the non-Dhimmi from among those who live under the authority of Islam. Hence, all the disbelievers who enter Dar Al-Islam must be subjected to the rules of Islam except the 'Aqeedah matters, the rules related to 'Aqeedah matters and any action which the Messenger of Allahallowed them to do whether these disbelievers were Dhimmi, under covenant or asylum seekers. However, the ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them for they would be given what is known as diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wa’il who said:
«جَاءَ ابْنُ النَّوَّاحَةِ وَابْنُ أُثَالٍ، رَسُولاَ مُسَيْلِمَةَ إِلَى النَّبِيِّ فَقَالَ لَهُمَا: أَتَشْهَدَانِ أَنِّي رَسُولُ اللَّهِ؟ قَالاَ: نَشْهَدُ أَنَّ مُسَيْلِمَةَ رَسُولُ اللَّهِ، فَقَالَ النَّبِيُّ: آمَنْتُ بِاللَّهِ وَرُسُلِهِ، لَوْ كُنْتُ قَاتِلاً رَسُولاً لَقَتَلْتُكُمَا، قَالَ عَبْدُ اللَّهِ: قَالَ: فَمَضَتِ السُّنَّةُ أَنَّ الرُّسُلَ لاَ تُقْتَلُ»
“Ibn Nawwaha and Ibn Uthal came to the Messenger of Allah as Musaylima envoys - the liar - and the Messenger of Allah said to them “Do you bear witness that I am the Messenger of Allah?” They said “We bear witness that Musaylima is the Messenger of Allah.” Upon this the Messenger of Allahsaid: I believe in Allan and His Messengers. “I give you security by Allah and His Messenger. If I were to kill an envoy I would have killed the two of you”Abdullah said: the precedent of the sunna is that envoys are not killed.” (reported by Ahmad and declared Hasan by Al-Haythami). So, this narration indicates that it is not permitted to kill the envoys of the disbelievers and nor to apply the punishments (Uqubat) upon them. However, this is exclusively applicable upon those who have the capacity of an envoy such as the ambassador and the “Chargé d'affaires” and the like. As for those upon whom the capacity of an envoy does not apply such as the Consul and the Commercial Attaché and the like, they would not have any immunity for they do not have the capacity of an envoy. This matter should be referred to the international convention because it is a terminological expression whose reality should be understood by way of looking into the convention and it is part of establishing the Manat (reality); in other words, establishing whether they are considered envoys or not.