Ahmad 4668

Its chain of transmission is sahih. Bukhari narrated it in 6/82 and 13/109 from Musaddad from Yahya bin Saeed, with this chain. He also narrated it in 6/82 through Ismail bin Zakariya from Ubaydullah. Muslim narrated it in 2/86 through Layth bin Saad, and through Yahya Qattan and Ibn Numayr, all three from Ubaydullah.This hadith is a great and weighty foundational principle of governance. We do not know of it appearing in any legal system, nor in any law, in this sound, precise, and well-defined form, which limits the authority of the ruler and preserves for the ruled their religion and dignity.Kings and princes have grown accustomed, as have governments in countries with organized governments and laws, to commanding actions in which the one commanded sees no way to avoid carrying out what he has been ordered to do. The subjects, under both kinds of rule, have come to obey what they are commanded only when it matches their own desire or wish, otherwise they strive to fall short in carrying out what they were ordered, whenever they find a way to fall short without incurring blame or fear. All this is falsehood and corruption, through which the machinery of governance breaks down and systems and conditions become disturbed, since they do not see obedience as obligatory upon them, and when they do obey in some matters, they obey almost as if forced, since it did not match their desire and was not something they liked.As for Islamic law, it established the sound foundation and the firm legislation through this great hadith. A Muslim must obey whoever among the Muslims holds rightful authority to command him, in what he likes and what he dislikes. This is obligatory upon him, with sin if he abandons it, whether or not he realizes that he has fallen short, for he has abandoned an obligation that Allah imposed upon him, which has become part of his religious duty. If he falls short in it, it is as if he fell short in prayer or zakat or similar obligations of religion that Allah has made obligatory.Then this obligation was qualified with a sound and precise condition, which gives the one commanded the right to judge what he has been commanded to do. If whoever holds authority over him commands him to commit a sin, then there is no hearing and no obedience. It is not permissible for him to disobey Allah in obedience to a created being. If he does so, the sin falls upon him just as it falls upon the one who commanded him. He is not excused before Allah on the grounds that he committed this sin at another's command, for he is accountable and responsible for his own action, exactly as the one who commanded him is.It is understood as a matter of course that the sin in which the one commanded must not obey the one commanding him is the explicit sin whose prohibition is indicated by the Book and the sunnah, not a sin in which the one commanded interprets and manipulates matters, deceiving himself into imagining that he refused only because he was commanded to sin, deceiving both himself and others.We think it useful to give some examples of this, drawn from what people know in our own time, for clarification and illustration.1. An official whom whoever holds rightful authority over him orders to transfer from a city he loves to a city he dislikes, or from a job he considers himself suited for to a lesser job, or one more burdensome for him. Such a man must obey whoever holds rightful authority over him. He has no way to avoid it, whether he likes it or dislikes it. If he refuses to obey the command, he is sinning, and his refusal is forbidden, whether he refuses openly and clearly or refuses in a devious, concealed way, resorting to pretexts and excuses.The one commanded may feel that he has been cheated by what he was ordered, or wronged and denied his right, and this may indeed be true, but he must obey in every case, for injustice in matters like this is a matter of judgment, on which views and opinions differ, and the one commanded, in this situation, looks at things from his own perspective and judges for himself, so it is rare for his assessment of the injustice he believes he has suffered to be a correct assessment, given how likely it is that his own desire has overcome him. Perhaps the one who commanded him is more capable of grasping the matter from various angles, and perhaps his judgment in that case is closer to being correct, since he did not do what he did out of clear personal desire or deliberate stubbornness. Injustice in a case like this is forbidden, but it is forbidden on the part of the one commanding. As for the one commanded, he has not been ordered to sin, because what he was ordered to do is not in itself a sin, rather the sin lies in issuing the order unjustly.2. We see some laws permitting acts that are forbidden beyond any doubt, such as adultery, the sale of alcohol, and the like, and they stipulate that a license must be issued by some specified competent authority under the law for this permission to apply. This official, whom the law orders to grant a license for such an act if the required conditions are met by the one requesting the license, is not permitted to obey what he has been ordered to do, and granting the required license is absolutely forbidden. Even though the law commands him to do it, he has been commanded to commit a sin, so there is no hearing and no obedience. But if he believes that granting the license in such a case is permissible, then he has committed disbelief and left Islam, because he has declared permissible something that is absolutely forbidden, whose prohibition is known as a matter of religious necessity.3. We see in some Muslim countries laws that have been imposed, transferred from pagan, atheistic Europe, laws that contradict Islam in a fundamental way in many of their principles and details. Indeed, some of them contain what actually undermines and destroys Islam, and this is a clear, self-evident matter which only someone who deceives himself would dispute, someone who is ignorant of his religion or who opposes it without realizing it. Yet in many of their provisions, these laws also agree with Islamic legislation, or at least do not conflict with it.Acting upon them in Muslim countries is not permissible even where they agree with Islamic legislation, because whoever drew them up, at the time of drawing them up, did not consider whether they agreed with Islam or contradicted it, but rather considered only their agreement with European laws, their principles and rules, making these the basis to which he refers. He is thereby sinning and apostatizing, whether he laid down a ruling that agrees with Islam or one that contradicts it.Imam Shafii laid down a great and precise principle regarding something similar to this, though he laid it down not concerning those who legislate laws from non-Islamic sources, for the lands of Islam at that time were free of this disgrace, but rather concerning Muslim jurists and scholars who derive rulings before ascertaining what has come down in the Book and the sahih sunnah, and who reason by analogy and exercise their own judgment without a sound basis. He said in his book Risalah, number 178 of our commentary and verification, "Whoever undertakes what he does not know, and what his understanding has not made clear to him, then even if his conclusion happens to agree with what is correct, since he arrived at it without knowing it, it is not praiseworthy, and Allah knows best, and he is not excused for his error, if he speaks about a matter in which his knowledge does not encompass the difference between error and correctness."The meaning of this is clear. A jurist exercising independent legal reasoning in Islamic jurisprudence, based on the principles of Islam, is not excused if his reasoning rests on no foundation of knowledge, and without verifying the evidence from the Book and the sunnah, even if he happens to reach the correct ruling, since his correctness would be a matter of chance, not built upon evidence, nor upon certainty, nor upon sound reasoning. As for one who exercises reasoning and legislates on principles outside the principles of Islam, he is neither a jurist nor a Muslim, since he has deliberately set out to establish whatever rulings he sees fit, whether they agree with Islam or contradict it. So even if his ruling happens to agree with what is correct, arriving there without knowing it, indeed without intending it, it is not praiseworthy. Indeed, such people are no less guilty of disbelief than others when they contradict Islam.This precise observation from Imam Shafii is itself the example we wish to give, but it serves only as an introduction.The example is this. We see many Muslims who have been entrusted with implementing these laws and upholding them, whether by ruling according to them, or explaining them, or defending them. As far as we can tell, they are Muslims. They pray and are careful about prayer, they fast and are careful about fasting, they pay zakat and give generously in charity with contented, settled hearts, and they perform hajj as well as any Muslim could, indeed some of them go on hajj with their families almost every year, and you would never find any fault in their religious practice, they are not people given to dancing or immorality. In what they do, they are Muslims at peace with Islam, content and believing out of knowledge and certainty.But when they practice their profession in the judiciary, in legislation, or in legal defense, these laws take hold of them and flow through them the way Satan flows through the blood, so they become fiercely partisan for them, and they are eager to apply their provisions and defend them with the same zeal that a rational, believing person shows toward something he is certain of and considers to be the sole truth with no truth beside it. At that point they forget everything connected to Islam in this legislation, except for the self-deception some of them practice in claiming that Islamic jurisprudence may serve as one source of legislation wherever their laws contain no explicit text, and they are extremely keen to make their legislation, in line with the European directives issued to them in the Treaty of Montreux, conform to the principles of modern legislation. I have said repeatedly, in various places in my books and writings, and have explained matters concerning the principles of modern legislation.These three types, the legislator, the defender, and the judge, share in some of this meaning and differ in other respects, though the outcome is the same. As for the legislator, he lays down these laws while believing in their validity and in the correctness of what he is doing, and this is a clear matter, even if he fasts and prays and claims to be a Muslim. As for the defender, he defends both truth and falsehood. If he defends falsehood that contradicts Islam while believing it to be correct, he is like his colleague the legislator. If that is not the case, he is a sheer hypocrite, no matter how he excuses himself by claiming he is merely fulfilling his duty to defend.As for the judge, he is the subject of our discussion and the point of our example. He may have, within himself, some excuse when he rules according to these laws in matters that do not agree with Islam, even though careful examination gives this excuse no real value. But when he rules according to something that contradicts Islam, something explicitly stated in the Book and the sunnah, and what the evidence from them indicates, then he is, without doubt, among those included in this hadith, for he has been commanded to sin. The laws that he considers himself obligated to obey have commanded him to sin, indeed to something worse than sin, to oppose the Book of Allah and the sunnah of His Messenger. So there is no hearing and no obedience. If he hears and obeys, the burden of sin falls upon him just as it falls upon whoever laid down these laws, and he is exactly like him.4. Great men among our legal scholars have done something similar to this principle, out of respect for the laws they themselves drew up. The Council of State established two significant principles regarding what happens when an ordinary law of the state conflicts with the fundamental law, that is, the constitution. It gave priority to the constitution and ruled that the courts must not apply the ordinary law if it conflicts with it. The Council of State is one of the highest judicial bodies, and among the jurisdiction entrusted to it is the authority to rule for the annulment of administrative decisions issued by the government whenever they are issued in violation of the law.These two principles that concern us here were issued by the first chamber of that Council, presided over by Muhammad Kamil Mursi Pasha, who drafted the law establishing the Council of State, or at least had the greatest hand in issuing it, and who headed it when it was first established, laying down its foundations and establishing its pillars.The two principles he established were as follows. The first was that there is nothing in Egyptian law preventing Egyptian courts from taking up the examination of the constitutionality of laws, indeed even of decree-laws, whether in terms of form or substance. The second was that there is no dispute that Royal Decree number 42 of the year 1923, establishing a constitutional system for the Egyptian state, is one of the laws that the courts must apply, but it is distinguished from other laws by a special nature that grants it a superior status and marks it with sovereignty, since it is the guarantor and hope of freedoms, and the foundation of constitutional life and the framework holding it together. It follows from this that if an ordinary law conflicts with the constitution in some dispute brought before the courts, and a difficulty thereby arises as to which of the two laws is more deserving of application, the courts must, by virtue of their judicial function, address this difficulty and resolve it according to the principles of that function and within the constitutional limits set for it.There is no doubt that when such a conflict arises, the courts must set aside the ordinary law and disregard it, giving precedence to the constitution and applying it, since it is the higher law more deserving of being followed. In doing so, the courts do not encroach upon the legislative authority, so long as the court does not itself enact a law, nor rule to annul a law, nor order that its implementation be suspended. All it does is weigh two laws that have come into conflict, resolve this difficulty, and determine which of the two is more deserving of application. If the ordinary law has been set aside, this is in reality due to the supreme sovereignty of the constitution over all other laws, a sovereignty that both the judge and the legislator alike must respect.(Case number 65 of judicial year 1, in the collection of Council of State rulings, compiled by Ustadh Mahmud Asim, volume 1, pages 377 to 379.)It is self-evident, something no Muslim can dispute, that the Quran and the sunnah are higher and more exalted than the constitution and all other laws, and that a Muslim is not truly a Muslim unless he obeys Allah and His Messenger, giving precedence to what they have ruled over every other ruling and every other law, and that he must set aside any law that conflicts with a ruling of the sharia established by the Book and the sahih sunnah, in obedience to the command of the Messenger of Allah in this hadith, that if he is commanded to sin, then there is no hearing and no obedience.