Wednesday, March 14, 2012
Assembly of Muslim Jurists of America Cautions Muslims Against Participating in American Legal System; Urges Them to “Hate It in Their Hearts”
Posted by Translating Jihad
[Update 14-Mar-2012: Added the names of additional prominent Muslim leaders in the United States who are affiliated with AMJA, including Muhammad al-Majid of the Adam Center in Virginia, Hussein Hamed Hassan, director of financial consultancy firm which advises Goldman Sachs, JP Morgan Chase, and other large American banking institutions, and Zulfiqar Ali Shah, former president of Islamic Circle of North America and current executive director of the Fiqh Council of North America. Updates to post are in italics below.]
Below is my translation of an Arabic-language paper published by the Assembly of Muslim Jurists of America (AMJA) in 2007, and presented at their 2008 careers conference in Houston, which provides guidelines for American Muslims on what they can and cannot do vis-à-vis infidel legal systems. The paper makes clear that according to Islam, the only legitimate law is that which comes from Allah, and in fact authority to make laws rests with Allah alone. This renders every other legal system—including the American system—illegitimate.
Since the fact nevertheless remains that many Muslims do live under such ‘infidel’ legal systems, the paper provides guidelines for how they should act under these systems, specifically addressing issues such as Muslims studying man-made law (i.e. non-Islamic law), Muslims governing under infidel legal systems, Muslims working as judges or lawyers or prosecuting cases in infidel courts, and Muslims granting powers of attorney to non-Muslims in disputes. Throughout the paper it is made abundantly clear that Muslims should view the American and other non-Muslim legal systems as infidel systems, and that they are only to participate in them in specific circumstances in order to benefit Islam and Muslims generally. They are specifically instructed to feel hatred in their hearts toward such infidel legal systems, and to do everything within their power to make the Islamic Shari’a supreme, even if that means engaging in deception in certain cases.
It is important to note that AMJA–whose stated purpose is to “clarify the rulings of the sharia which are relevant for those who live in America”–is not just a fringe organization with no influence. The Islamic scholars involved with this group occupy influential positions in universities, Islamic centers, and mosques throughout the United States. Below is a list of some of their prominent members and experts, along with the names of universities and other organizations with which they’re affiliated, as accessed from AMJA’s website (Arabic name spellings as listed by AMJA):
Hussein Hamad Hassan (Chairman of the Board at AMJA), Director of Dar al-Sharia Legal and Financial Consultancy (Dubai) (firm which advises Goldman Sachs, JP Morgan Chase, and others);
Mohammad AlMajid, Imam of Adam Center (Virginia);
Mohammad Naeem AlSael, University of Texas, American Open University (AOU) (Virginia);
Waleed Basyouni, North American Imam Federation (NAIF) (Arizona), Texas Dawah Convention, AlMaghrib Institute (Texas);
Ahmad Al Soway’ey Shleibak, Professor at AOU;
Al Sayed Abd Al Halim Muhammad Hussein, President of Al-Eman Islamic Association of New York;
Hatem AlHaj, Sharia Academy of America (Florida), Albert Lea Medical Center (Minnesota), NAIF, Islamic Jurisprudence Council of Minnesota;
Abdel Azim AlSiddiq, Professor at Islamic American University (IAU), Imam/Director of Aqsa Islamic Society;
Deya-ud-Deen Eberle, Lecturer at AOU;
Ahmad Al Sherbiny Nabhan, Professor at AOU;
Ahmad Abd Al-Khaliq, Imam of the Islamic Center in New Jersey;
Gamal Helmy, Chairman of Religious Affairs in the Muslim Association of Virginia (MAV);
Gamal Zarbozo, Islamic writer and researcher in Denver, Colorado;
Haitham Abu Ridwan Barazanji, Imam of the Islamic Center in San Pitt, Tampa, FL;
Ibrahim Dremali, Imam of the Islamic Center of Boca Raton, Florida;
Ibrahim Zidan, Imam of Al-Huda Islamic Center (New York);
Mohammad Faqih, Khateeb and Lecturer in Columbus, Ohio;
Mostafa Tolbah, Imam of Islamic Center in Detroit, Michigan;
Muhammad Abo Al Yosr Al Beyanony, Imam of Islamic Center in Raleigh, North Carolina;
Muhammad Sayed Adly, President of Imams and Duat Association of South and North Carolina, Imam of Masjid Al-Muslimeen in Columbia, South Carolina;
Muhammad Muhammad Musa, Imam of Islamic Center in Bloomfield Hills, Michigan;
Mukhtar Kartus, Member of Board of Trustees and Daia in Islamic Center in Ann Arbor, Michigan;
Mustafa Shahin, Lecturer at IAU;
Mustafa Balkhir, MA student at AOU;
Mustafa Al-Turk, Chairman of Islamic Organization, Michigan;
Omar Shahin, President of Executive Committee of NAIF, Lecturer at AOU;
Sadeq Muhammad Al Hassan, Director of Masjid Annur, Sacramento, California;
Samy Muhammad Masaud, Imam of Aleman Mosque in New York City;
Tho Al Fokkar Ali Shah (variant: Zulfiqar Ali Shah), President (Former) of Islamic Circle of North America (ICNA), Executive Director of Fiqh Council of North America, Religious Director of Islamic Society of Milwaukee;
Yassir Fazaqa, Imam of Islamic Center of Orange County, California;
Waleed Al-Maneese, Dar-al-Farooq Islamic Center (Minnesota), Vice President of Islamic University of Minnesota, AOU, NAIF;
Muwaffak Al Ghaylany, Islamic Center in Grand Blank City (Minnesota), Shari`a Academy in America (Florida), NAIF;
Main Al-Qudah, MAS Katy Center (Texas), AOU, Islamic American University (Minnesota), Al-Yarmook University (Iraq);
Salah Alsawy, Institute of Arabic and Islamic Sciences (Virginia), AOU, Sharia Academy (Florida), Al-Azhar University (Egypt), Umm Al Qura University (Saudi Arabia); and
Muhammad Adam Alsheikh, Al Rahmah Mosque (Maryland), Sudanese courts.
Credit goes to the Center for Security Policy for discovering this paper and bringing it to me for translation, and providing the background information to give it context.
(Note about the translation: This is a gist, and not a verbatim translation, of the 47-page Arabic-language paper produced by AMJA. Certain sections of the paper are gisted in more detail than others simply due to Translating Jihad’s assessment of their relative significance. All Qur’an quotes included in the translation are taken from Yusuf ‘Ali’s English translation of the Qur’an, accessed from quran.com. Page numbers included below are taken from the original Arabic-language paper, which can be seen here.)
The gisted translation follows:
Page 1 (Title Page):
Published By: Assembly of Muslim Jurists of America (AMJA)
Title: “Judicial Work Outside the Lands of Islam—What Is Permitted and What Is Forbidden”
By: Dr. Walid bin Idris bin ‘Abd-al-‘Aziz al-Manisi, Member of the Permanent Fatwa Committee for AMJA; Member of the Faculty of American Open University; Imam and Speaker at the Dar al-Faruq Islamic Center in Minneapolis
Date: November 2007
Page 2 (Introduction):
Millions of Muslims have had to live outside the lands of Islam, or have been forced to do so, and many of them are persecuted in their religion. Muslims are permitted to reside in Dar al-Kuffar (i.e. The Land of the Infidels) under two conditions:
1- He is permitted to practice his religion openly in Dar al-Kuffar;
2- He is not permitted to practice his religion openly, but he is unable to emigrate to Dar al-Islam (The Land of Islam)
Because of Muslims’ residence outside the Dar al-Islam, there have been (legal) disputes between them and non-Muslims, both with individuals and with governmental and non-governmental organizations. At times the disputes are between themselves as Muslims as well. Thus they need to know the rulings of the Shari’a in their situation, including for some Muslims who have gained employment as lawyers or judges in non-Muslim countries, in order to preserve the rights of Muslims, and help them overcome persecution. That’s why AMJA has prepared this study.
The importance of this is further increased considering that many Muslim lands have been occupied by foreign powers, and have had foreign judicial systems imposed on them which are secular and which disallow the Shari’a from being used in court, or only allow it to be used for personal and family issues.
The study has been divided into a foreword and five chapters. The foreword deals with governing by other than that which Allah sent down, and when it becomes disbelief in Allah (kufr). The first chapter deals with the study of man-made law. The second chapter deals with being employed as a lawyer outside the land of Islam. The third chapter deals with being employed as a judge outside the land of Islam. The fourth chapter deals with prosecuting in foreign (i.e. non-Islamic) courts. The fifth chapter deals with granting powers of attorney to non-Muslims in disputes.
Foreword: Governing by Other Than That Which Allah Sent Down
First Question: The permissibility of governing by other than that which Allah sent down.
Linguistically ruling means preventing or prohibiting, but in proper usage ruling by the Shari’a is ruling by what Allah has spoken. Legal rulings are divided into two sections: 1) obligatory and 2) positivist (or man-made).
Obligatory ruling is Allah’s word concerning those whom he commands, whether by requirement or by choice.
Man-made rulings are reasons or conditions or prohibitions which the lawmaker has put in place which by their existence either affirm or deny the rulings of the Shari’a.
The difference between the two is that the former requires the person to either comply with it or not, while the latter has put in place guidelines or descriptions for either doing it or not doing it.
The authority to legislate rests with Allah alone (quotes various Qur’anic scriptures related to this).
Various sources in the Qur’an and hadith attest to the fact that making it permissible to rule by other than that which Allah sent down is disbelief in Allah (kufr) and outside the pale of Islam.
(Quotes from Ibn Taymiyya to the effect that whoever makes permissible what Allah hath forbidden or makes forbidden what Allah hath made permissible is an infidel (kafir), and all jurists agree with this)
(Quotes from Ibn Kathir’s commentary on the Qur’an, in which he explains that anyone who substitutes man-made laws for those of Allah is an infidel (kafir) and must be fought against until he restores the laws of Allah)
(Quotes from Ibn Hazim al-Andalusi, repeating the same sentiment, and adding that anyone who does this is a polytheist (mushrik), and is joined to the Jews and Christians.)
(Quotes from Shaykh Muhammad bin Ibrahim Al al-Shaykh on the same issue, who also quotes some passages from the Qur’an to support this view.)
(Quotes from Shaykh Muhammad bin Amin al-Shanqiti to the same effect)
(Quotes from Shaykh Ahmad Shakir, who claims that infidel colonialists have imposed un-Islamic laws on the Muslims, which in fact represent an alternate religion to replace Islam; laments that most Muslim countries have adopted godless European systems of governance.)
(Quotes from Shaykh Salih bin Ibrahim al-Bulayhi (or al-Balihi), who calls ruling by other than that which Allah sent down to be disbelief in Allah (kufr); the only way to preserve the rights granted by the Shari’a is to govern by the Shari’a completely.)
(Quotes from Shaykh ‘Abd-al-‘Aziz bin Baz who also contends that governing against the Shari’a is disbelief in Allah (kufr).)
(Quotes from Shaykh Muhammad bin Salih al-‘Uthaymin to the same effect.)
These quotes from ancient and modern imams are sufficient to establish that governing by other than that which Allah sent down is major disbelief in Allah (kufr kabir), and departure from Islam.
Second Question: The total replacement of the Shari’a of Allah with another Shari’a
The total replacement of the Shari’a of Allah with a Shari’a of men was first done by Muslims during the time of the Tatars, in which they replaced the Shari’a with the laws of Yasiq (or Yasa) during the time of Gengis Khan, which consisted of Jewish, Christian, and Islamic laws. Yet at the same time they claimed to be Muslims.
This prompted Ibn Kathir to conclude that they were infidels (kuffar).
Some have mistakenly alleged that several well-known scholars have said that it is not disbelief in Allah (kufr) for someone to completely replace the Shari’a of Allah with another set of laws, unless they claim that these other laws are Allah’s laws. However, this was false and a misinterpretation of the scholars’ statements. However, it also doesn’t mean that you can automatically pronounce takfir (i.e. the act of declaring someone to be an infidel) on someone who has governed by non-Islamic law. The scholars were judging the action, not the actor, and there may be mitigating circumstances for the actor, i.e. he might be ignorant or compelled to do so.
Third question: The ruling on a case in which the Shari’a of Allah is partially replaced by another Shari’a
If a ruler governs by the Shari’a of Allah some of the time, but then governs by another law part of the time, he is not an infidel (kafir), but he is a corrupt tyrant. Allah used three terms to describe those who rule by other than the Shari’a: disbelief in Allah (kufr), injustice, and sin/immorality. ‘Ali bin Abu-Talha narrated from Ibn ‘Abbas: “Whoever denies what Allah sent down, has disbelieved in Allah (kafara). Whoever confessed it but then didn’t rule by it is an evil tyrant.”
(Quotes the end of Qur’an 5:44, and several Islamic scholars’ interpretation of this verse, explaining that it means that whoever failed to judge by that which Allah revealed has disbelieved in Allah, but they haven’t left the Islamic community.)
(Quotes from Ibn Qayyim al-Jawzia, who explains that whoever rules by other than that which Allah revealed has committed infidelity (kufr), either great or small—great if they didn’t believe it was the right thing to do, and small if they believed it was the right thing to do but didn’t do it.
(Quotes from Imam Ibn Abu-al-‘Azz al-Hanafi to the same effect.)
The Study of Foreign and Man-made Laws
First Question: The ruling on their study and the categories of those who study them
There is a good and a bad side to studying foreign law. On the good side, it is in order to warn others of what’s in it, or to better understand what distinguishes it from the Shari’a, or to help protect Muslims from being oppressed by it, or to protect Muslims’ rights under the Shari’a. On the bad side there are those who do so to sow dissension (fitna), and prefer it over the Shari’a, or make it equal with the Shari’a, especially if the one who studies foreign law is devoid of knowledge, and doesn’t understand Islam.
Those who study foreign law are broken down into several different categories. The one who best explained this was Shaykh ‘Abd-al-‘Aziz bin Baz, with a fatwa titled, “Ruling on one who studied man-made laws or undertook to study them.”
(Fatwa): Question: Is one who studies man-made laws or undertook to study them an infidel or not?
Answer: Allah has obligated all of his servants to be ruled by the Shari’a, and every other form of law is ignorance (jahiliyya). Those who study foreign law can be divided into three categories.
First category: This is he who studies it in order to find out the truth of it, or to know why the Shari’a is preferred over it, or to benefit from it in a way which does not contradict the Shari’a, or to benefit someone else. There is nothing wrong with this.
Second category: This is he who studies it in order to rule by it or appoint someone else to rule by it, with the knowledge that it is against the Shari’a to rule by other than that which Allah revealed. However, they do it for money or are carried away by some other fancy. These people are definitely evil-doers, and among them are those who are infidels and oppressors. However, it is the smaller disbelief in Allah (kufr).
Third category: This is he who studies it because he believes it is permissible or wants to make it permissible (under Islam). This is considered greater disbelief in Allah (kufr). Scholars agree that those make permissible what Allah has forbidden or make forbidden that which Allah had made permissible are infidels (kuffar).
Chapter 2: Working as an Attorney in Foreign and Man-made Courts
Question 1: Attorneys and their history
An attorney is one who advocates on behalf of another and offers legal counsel. Everyone also has the right to advocate for themselves. The purpose of an attorney is to have a well-spoken man who is familiar with the case, and who at the same time has knowledge of the applicable laws. Attorneys are supposed to help the judges understand the facts of both sides of the case so they can make correct judgments. In this way attorneys are considered aides of the judges.
Attorneys have been around since ancient times in various countries. In Islamic jurisprudence, jurists have discussed attorneys under the heading of Power of Attorney/Proxy in Litigation. In general, attorneys are considered legitimate by a consensus of scholars.
Granting power of attorney in the language of the scholars is a permissible request for legal assistance for the attorney to act as one’s representative.
Question 2: Attorneys in Islamic Countries
The work of attorneys is well-established in Arab and Islamic countries, and there are well-established fatwas from scholars which approve of their profession, as long as the attorney is seeking justice rather than helping someone who is guilty go free. It is permissible to represent someone who is guilty, as long as the attorney is merely seeking to prevent him from receiving an unjust sentence.
In most Islamic countries, attorneys are simply known as attorneys. However, Saudi Arabia has a system in place which is derived from the scholars’ discussion about the power of attorney in litigation, which is slightly different from the Western system, from which the systems in other Arab countries are derived.
The various Arab laws and regulations have generally stipulated, just as in the Western system, that attorneys are agents of the judges, and that their purpose is to serve justice and the public welfare.
Question 3: Attorneys at the Time of the Fathers (al-Salaf)
It has been narrated that ‘Ulya authorized ‘Abdallah bin J’afar to serve as an attorney in the time of ‘Uthaymin. It was also narrated that ‘Ulya authorized ‘Aqila to serve as an attorney in the time of Abu-Bakr.
Ibn Qudama also related that all of the companions of the Prophet agreed on the legitimacy of legal representation.
Question 4: Rulings from Scholars on Attorneys
Scholars have mentioned many issues related to legal representation in disputes. (Quotes from the author of Al-Bahr al-Ra’iq in Hanafi equating granting someone authority to act as your legal representative and granting someone authority to arrest someone else)
Imam Ibn Rushd al-Maliki said an agent can cease being an agent at any time, unless he is a legal representative in litigation. (Quotes from Asbagh, Abu-Hanifa, and Imam al-Shafi’i discussing the conditions under which an attorney can nullify his contract and cease being a legal representative)
(Quotes from Imam al-Shafi’i and other scholars and companions of the Prophet about the same issues)
In sum, attorneys are permissible under the Shari’a of Islam, under the section of authorized representation in litigation, which has been stipulated as permissible by scholars, as attested to in the texts of the four schools of Islam. There is no difference between attorneys, or advocating for someone before an Islamic or foreign or man-made court.
Working as a Judge in Foreign and Man-made Courts
First Question: Definition of the judiciary and its staff, and the declaration that it is a communal obligation
Note: Communal obligation (fard kifaya) in Islam refers to a duty that is shared by the Islamic community, so that not everyone has to engage in it as long as someone is doing it. The same term is used to describe the duty of offensive jihad.)
Linguistically ‘judiciary’ is taken from ‘to execute’, meaning ‘to execute the rulings on the matter’ and to complete it. Allah Almighty said: “So He completed them as seven firmaments in two Days” [Qur’an 41:12]. (Note: The Arabic word translated as ‘completed’ in this verse is qada, which also means ‘to execute’, and is the root of the word qada’, which means ‘judiciary’.)
Allah also said: “So decree whatever thou desirest to decree: for thou canst only decree (touching) the life of this world” [Qur’an 20:72].
The term judiciary or judgment means to eliminate disputes and conflicts through an obligatory ruling of the Shari’a.
(Delves deeper into the linguistics of the Arabic word for judiciary)
Given that it is necessary for the Islamic nation (ummah) to have a judiciary in order to resolve disputes, all scholars are in agreement that judgeship is a communal obligation. (Quotes from Ibn Qudama to support this)
The Prophet himself undertook this great work, and after him his companions and his successors also took on this work (i.e. of being a judge).
Second Question: The foundation for the judge not ruling except by the Shari’a of Allah
The foundation for the ruling, and the reference for the judge ruling by the Shari’a, comes from the saying of the Most High: “We sent him the Gospel: therein was guidance and light, and confirmation of the Law that had come before him: a guidance and an admonition to those who fear Allah” [Qur’an 5:46], as well as the saying of the Most High: “Judge thou between them by what Allah hath revealed” [Qur’an 5:49]. Ruling among the people means establishing justice without favoritism, and justice means putting things in their proper place. There is no justice except in the ruling of Allah. Therefore when one rules by other than that which Allah revealed, he has put something outside of its proper place. The Almighty said: “And when ye judge between man and man, that ye judge with justice” [Qur’an 4:58]. He also said on this topic: “O David! We did indeed make thee a vicegerent on earth: so judge thou between men in truth (and justice): Nor follow thou the lusts (of thy heart), for they will mislead thee from the Path of Allah: for those who wander astray from the Path of Allah, is a Penalty Grievous, for that they forget the Day of Account” [Qur’an 38:26]. He also said: “Judge thou between them by what Allah hath revealed, and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) which Allah hath sent down to thee. And if they turn away, be assured that for some of their crime it is Allah’s purpose to punish them. And truly most men are rebellious. Do they then seek after a judgment of (the days of) ignorance? But who, for a people whose faith is assured, can give better judgment than Allah?” [Qur’an 5:49-50].
We have already stressed in the introduction the danger of judging by other than the Shari’a of Allah, and that it is disbelief in Allah (kufr), injustice, and sinfulness, and we don’t need to repeat ourselves here. Rather we will confine our discourse to the needs of Muslims in countries ruled by man-made law, and Western countries—is it permissible for them to work as judges in certain conditions? This is what we will clarify Allah-willing in the next question.
Third Question: Working as a judge in foreign and man-made courts
Scholars have differed on the ruling on working as a judge in foreign and man-made courts on two sayings:
It is not at all permissible to work as a judge in foreign and man-made courts.
This has been stated by a majority of scholars, and is included in the general meaning of the words that ruling by a law which is not the law of Allah is disbelief in Allah (kufr). We have already mentioned many of them, and published the texts of their statements.
Shaykh ‘Abd-al-Rizaq ‘Afifi (may Allah have mercy on him) said that whoever as a Muslim with a knowledge of Islam rules contradictory to the Shari’a is an infidel (kafir) and is outside the pale of Islam. This also goes for whoever takes the ruling which is contradictory to the Shari’a and applies it to other cases.
The argument for those who support this position lies in the verses of the Qur’an which state that whoever rules by that which Allah did not reveal is an infidel (kufr), and is designated a tyrant. These say that ruling by that which Allah did not reveal makes one an infidel (kufr), and is only permitted under compulsion, and Muslims are not compelled to become judges in man-made courts. Imam Ibn Qayyim said there is no disagreement in the Islamic community (ummah) on the fact that it is not permissible to utter disbelief in Allah (kufr) except under compulsion, if the person is a believer.
It is permissible to work as a judge in an infidel nation or a nation which rules by infidel law, even if that leads to ruling by their law, if by so doing one is able to increase the good and decrease the bad as much as possible.
Among those who have stated this in classical times is the Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him), and among contemporaries are the scholars of al-Azhar and Muslim Brotherhood leaders such as Hassan al-Hadyi and his son M’amun al-Hadyi, as well as ‘Abd-al-Qadir ‘Awda and others.
This position was also taken by Shaykh Muhammad Salim bin Muhammad ‘Ali bin ‘Abd-al-Wadud from what is now known as Mauritania. This Shaykh held several positions in the Mauritanian courts, through which he attempted to abolish the man-made law in the country, and replace it with the Shari’a, which he accomplished somewhat. To this day he continues to sit as the president of the Supreme Islamic Council, and also participates in several other Islamic organizations.
The argument of those who permit this is summarized as follows:
Joseph (of Egypt) took charge in an infidel nation, and he wasn’t able to rule by all of the rulings of Islam. It cannot be said that he governed but did not judge, because the governor or ruler judges between the people. Shaykh Ibn Taymiyya made it clear that the imamate is a type of judgeship. (Quotes from Imam al-Qurtubi, who elaborates on this interpretation of Joseph’s position in the government of Egypt as justifying ruling by other than that which Allah revealed, as long as he’s only there in order to improve things as much as he’s able, and not because he prefers infidel rule.)
(Quotes from al-Mawridi, who says that there are two opinions on the permissibility on working in a position of authority under a tyrant; first, it is permissible if he works righteousness in that which he is entrusted; second, that it is not permissible. Those who support the first opinion argue that, first, Joseph’s Pharaoh was righteous, while it was Moses’ Pharaoh who was a tyrant; and second, that Joseph looked after the Pharoah’s possessions, not his actions, so he was not liable for them.)
(Quotes from Shaykh ‘Abd-al-Rahman ‘Abd-al-Khaliq, who says there is no basis in the Qur’an and Sunnah for saying that it is not permissible to work as a judge in an infidel nation, and also quotes from the story of Joseph in the Qur’an to support the idea that Muslims can work as judges in infidel nations. He also argues that if you’re going to say that Muslims can’t work as judges in infidel nations, then you might as well say they can’t work as engineers or teachers or anything else which supports the state. Says that it is among the worst sins to leave the affairs of Muslims entirely in the hands of their enemies.)
The Prophet (PBUH) approving of the rule of the Negus was also a case of a Muslim ruler in an infidel nation, which followed that some of the rulings were contrary to the Shari’a of the Qur’an.
(Quotes from several scholars who quote hadiths of the Prophet, in which the Prophet made an alliance with infidel polytheists. They use this to argue that the Prophet was essentially agreeing in the alliance to support some infidel laws, so therefore you can’t say that it is never permissible to act as a judge under infidel law.)
(Quotes a hadith narrated by Anas regarding al-Hajjaj bin ‘Alat and his return to Mecca to retrieve money after Muhammad conquered Khaybar, using this as justification for serving as a judge under an infidel power.)
Many who forbid acting as a judge in an infidel country at the same time make it permissible to act as a legislator in said country, in which their job is to legislate by other than that which Allah revealed. However, the two jobs are actually very similar, and in fact both fall under the category of ruling by that which Allah did not reveal. Salman al-‘Awda explained that entering the legislature is a way of helping to reduce oppression, and enact positive reforms. Just because one enters the legislature does not mean he is recognizing that the infidel system is good, nor is he confessing his belief in it.
(Quotes from Ibn Taymiyya, who cited the example of the Negus to support this position.)
(Continues to quote from Ibn Taymiyya, who again cites the example of Joseph working under the Pharaoh.)
It seems to me that this issue cannot be easily divided, because it involves an infidel job, and causes injustice, and definitely negative consequences will result from a Muslim being employed as a judge outside the lands of Islam. But I think that Muslims should be forbidden from being employed as judges in infidel countries or those ruled by man-made law, except in certain limited cases where they can rule by the judgments of Allah. Besides that, it is not permissible to work as a judge except to defend Muslims against some great evil which would befall them unless some of them worked in the judiciary. These cases are covered in a special fatwa directed at a small number of individuals, in which the following conditions are presented:
· That he understand the Shari’a in such a manner as to be able to rule by it in every case brought before him, or at least as close as he’s able to from the cases brought before him. He also must in his heart hate the man-made law.
· That his goal in working as a judge be to help the oppressed and cease the oppression from them, and as much as he’s able decrease the bad and increase the good that happens to Muslims. He must also do everything in his power to enact laws that allow the Muslims to practice their Shari’a. He must keep it in his mind that he was not permitted to take this job except to serve Islam and Muslims. If he is unable to achieve this objective, and fails in his goal, then he has thereby lost the justification which permitted him to undertake this profession. He must also choose the judicial profession which is closest to the Shari’a.
· That he judge by the rulings of the Shari’a as much as possible, even if by a ruse, as the Prophet Joseph did when he pulled a trick to take his brother by the Shari’a, and prevent him from being punished for stealing according to the law of the king [Qur’an 12:76]. In other words, since he wasn’t able to rule by the Shari’a, he judged by that which was as close to the Shari’a as possible.
Fourth Question: Working on a jury in a man-made court
(Gives brief explanation of the jury system we employ in the West.)
It is permissible for a Muslim to participate as a member of a jury with the condition that he rules in agreement with the law (comment: probably referring to Islamic law). This is because it gives him the opportunity to judge according to that which he thinks is right within the confines of the articles of the man-made law. Often this permits him to apply Islamic law to the case. The decision is made according to the number of votes on the jury, so having Muslims on the jury to express their opinions on the cases can have the benefit of introducing Islamic judgments to the secular judges. The Muslim could be successful in co-opting some of the other jury members to agree with him on the ruling, whereby the Islamic ruling gains a majority of the votes, which could contribute to achieving justice among people as much as possible.
(Quotes a fatwa from Dr. Sa’ud bin ‘Abdallah al-Finasan to support this viewpoint.)
Chapter Four: Referring Judgment to Foreign and Man-made Courts
First Question: Declaration that in general referring judgment to non-Islamic law is disbelief in Allah (kufr)
In general, referring judgment to non-Islamic law is disbelief in Allah (kufr), according to the explicit statements in the Qur’an. This is what the Muslim must evoke in situations which might warrant taking someone to court, even if he knows it is necessary. Allah said: “Hast thou not turned Thy vision to those who declare that they believe in the revelations that have come to thee and to those before thee? Their (real) wish is to resort together for judgment (in their disputes) to the Evil One, though they were ordered to reject him. But Satan’s wish is to lead them astray far away (from the right). When it is said to them: “Come to what Allah hath revealed, and to the Messenger”: Thou seest the Hypocrites avert their faces from thee in disgust. How then, when they are seized by misfortune, because of the deeds which they hands have sent forth? Then their come to thee, swearing by Allah: “We meant no more than good-will and conciliation!” Those men,-Allah knows what is in their hearts; so keep clear of them, but admonish them, and speak to them a word to reach their very souls” [Qur’an 4:60-63].
The Almighty also said: “They say, “We believe in Allah and in the messenger, and we obey”: but even after that, some of them turn away: they are not (really) Believers. When they are summoned to Allah and His messenger, in order that He may judge between them, behold some of them decline (to come). But if the right is on their side, they come to him with all submission. Is it that there is a disease in their hearts? or do they doubt, or are they in fear, that Allah and His Messenger will deal unjustly with them? Nay, it is they themselves who do wrong. The answer of the Believers, when summoned to Allah and His Messenger, in order that He may judge between them, is no other than this: they say, “We hear and we obey”: it is such as these that will attain felicity [Qur’an 24:47-51].
(Quotes from Ibn Jarir al-Tabari, who explains that this means that these people want to refer judgment in their disputes to the tyrant, whose judgment they prefer over Allah’s.)
(Quotes from Shaykh ‘Abd-al-Rahman al-S’adi, who explains that Allah is amazed by the hypocrites who claim to be believers, yet want to refer their judgments to the tyrant, which is anyone who rules by non-Islamic law. For belief requires one to adhere to the Shari’a and its rulings in everything, so whoever claims to be a believer yet chooses the rule of the tyrant over the rule of Allah is a liar.)
(Quotes from Muhammad Rashid to the same effect.)
Second Question: The forms settled as forbidden or permissible
Shaykh ‘Abd-al-Rahman al-Harafi stated that the forms settled as forbidden are the following:
1. Whoever refuses to refer judgment to the Shari’a, but rather refers it to man-made law is an infidel (kafir), guilty of greater infidelity (kufr akbar), and is outside the pale of Islam, even if he didn’t agree with it in his heart. (Quotes Qur’an 4:60).
2. (Page 33) Whoever likes to refer judgment to man-made law, even if he doesn’t actually do it, because liking infidelity is infidelity (kufr).
The forms settled as permitted are as follows:
· He who is complained against, and requested to appear before the courts of tyrants, for this is required in order to defend himself. (Quotes again from the story of the Negus to justify this position).
· He who is forced to refer judgment to man-made courts and laws, such as he who is arrested, or he who seeks political asylum fearing for his life, etc. Allah said: “Any one who, after accepting faith in Allah, utters Unbelief,- except under compulsion, his heart remaining firm in Faith – but such as open their breast to Unbelief, on them is Wrath from Allah, and theirs will be a dreadful Penalty” [Qur’an 16:106].
Third question: Conditions for permitting referring judgment to man-made law
The Muslim living in a non-Muslim country has rights and interests which will be lost if they are not referred to for judgment, and his opponent will reject them if he refers to the Shari’a for judgment. The Muslim does not have power in himself to enforce the law, however the man-made law obligates the police to intervene and enforce it. This is an oft-repeated scenario for Muslims living outside the land of Islam. If they are forbidden from referring judgment to man-made courts in these situations, they will be deprived of their wealth and rights, and subjected to whatever their enemies bring against them. The issue becomes even more important when it involves referring judgment to man-made law for cases involving the rights of Muslims as a whole. This situation can possibly be better understood by referring to the large institution set up to demand rights for Muslims and fight against anti-Muslim discrimination, the Council on American-Islamic Relations (CAIR). (Quotes from 2003 CAIR report on its efforts in the US, written by Arab Affairs Director Alaa Bayoumi)
It is a principle of jurisprudence that a general and public need brings the status of necessity. Therefore every issue which is needed by the Muslim general public is necessary and permitted.
(Quotes from Badr al-Din al-Zarkashi to support this point.)
(Cites Ibn Najim to support the same point.)
Among the resolutions passed by the Islamic Fiqh Academy which is part of the Muslim World League regarding the novel published by the one known as Salman Rushdie, was the third resolution: “The council declares that this person ought to be tracked down, and a criminal lawsuit filed against him and against the publishing house which published the novel for him, in the relevant courts in Great Britain. The Organization of the Islamic Conference (OIC), which represents Islamic countries, should raise this complaint and empower the best criminal attorneys to prosecute the case in the British penal system.” From this it is clear that they intended to refer the case for judgment to the British courts.
Shaykh ‘Abd-al-Razaq ‘Afifi was asked about this issue: “What is the ruling on courts which rule by man-made law?”
He responded: “If possible, one should not refer cases to them for judgment. However, if he cannot claim his right except by this means, there is no fault in it.”
Shaykh Salih bin ‘Abd-al-‘Aziz Al al-Shaykh explained that this means:
· It is required for a Muslim to be hostile to courts which rule by man-made law, and to dislike them.
· Do not freely choose to refer another to those courts for judgment. Doing this freely without compulsion is what Allah revealed: “They want to refer to the tyrant for judgment.” Note that He said ‘they want’.
· If you were wronged and you demand your rights which are guaranteed by the Shari’a, and you have no other recourse but to go to the man-made courts, and you have hatred in your heart for the courts, you are permitted to do so.
· Some scholars say “with hatred for the courts,” but there is no validity for the hatred. It is permitted for him to reclaim his right without hatred.
To summarize the words of the scholars, it is permitted to seek recourse in man-made courts if the following three conditions are present:
1. You are unable to reclaim your rights in any other way, because your adversary refuses to refer the case to the Shari’a, or he refuses to execute the ruling of the Shari’a.
2. You do not take more than the rights guaranteed to by the Shari’a; for if they ruled that you should receive more than your rights under the Shari’a, you do not take more than what you’re entitled to by the Shari’a from your adversary.
3. At the time that you go to the court, you feel hatred for it in your heart.
Without these three conditions present, it is forbidden to refer judgment to man-made courts. He who does so is in danger of apostatizing from Islam, Allah forbid.
Chapter 5: A Muslim Giving Power of Attorney to a Non-Muslim in a Dispute
The ruling on a Muslim giving power of attorney to a non-Muslim in a dispute:
Many Muslims have the need to empower a non-Muslim to plead on their behalf before (man-made) courts. Scholars have made clear that there is no requirement in Islam, in general, on granting power of attorney, except in limited cases where there is some disagreement, such as empowering an infidel (kafir) to pay zakat, or slaughter meat, etc. However, granting power of attorney in disputes has been permitted by most scholars, because the Prophet did so with Jews and other polytheists on several occasions.
(Quotes from Ibn Qudama and Hawashi al-Sharwani to support this)
However, many Maliki jurists have forbidden a Muslim from granting power of attorney to an infidel in a dispute with another Muslim. Their reasoning is that the infidel could treat the Muslim harshly. For this same reason, some of them don’t permit power of attorney to be granted to a Jew in a dispute with a Christian or vice versa, due to the enmity that exists between them.
(Quote from Imam Ibn ‘Arafa al-Dasuqi to support this idea)
I agree with the majority of scholars on the permissibility of a Muslim granting power of attorney to a non-Muslim, whether his opponent in the dispute is a Muslim or a non-Muslim, for the following reasons:
· The general evidence points to the legitimacy of entering into various contracts with non-Muslims.
· It can be difficult to find a Muslim attorney, and if one does find one often he is not as capable as a non-Muslim attorney.
· What the Malikites feared about non-Muslim attorneys humiliating Muslims are treating them harshly does not apply in today’s system of attorneys and laws, which prevents attorneys from abusing their opponents.
However, the door is open for those who are worried about a non-Muslim attorney gloating over or take advantage of the disputes to tarnish the image of Muslims generally and turn people away from Islam, even if these cases are rare. But as a general rule, it is permissible for a Muslim to grant power of attorney to a non-Muslim.
(Here he simply summarizes the points made throughout the study, which I won’t repeat)